/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210827.mbx C L A S S A C T I O N R E P O R T E R Friday, August 27, 2021, Vol. 23, No. 166 Headlines ACM RESEARCH: Hearing on Bid to Junk Kain Suit Set for Sept. 9 ACTIVISION BLIZZARD: ClaimsFiler Reminds of October 4 Deadline ADAPTHEALTH CORP: Faille Purported Class Suit Underway ANHEUSER-BUSCH INBEV: Jackson's Class Cert. Bid Denied as Moot ANNOVIS BIO: Bernstein Liebhard Reminds of October 18 Deadline APHRIA INC: Ont. Court Allows Securities Class Action to Proceed APOLLO GLOBAL: Bid to Dismiss Fongers Suit Pending APOLLO GLOBAL: Bid to Junk Suit Over PlayAGS Disclosures Pending APOLLO GLOBAL: Bid to Toss Patel Derivative Class Suit Pending APOLLO GLOBAL: Kansas Firefighters Pension Suit vs Presidio Junked APOLLO GLOBAL: Settlement Reached in Blair Class Suit ARDELYX INC: Robbins Geller Reminds of September 28 Deadline ARDIAN CORP: Sept. 17 Class Cert Reply Extension Sought ARROW FINANCIAL: Mediation in Richard to be Completed on Oct. 29 ASPEN ANESTHESIA: Class Action Over FDCPA Violation Dismissed ATI PHYSICAL: Hagens Berman Reminds of October 15 Deadline ATI PHYSICAL: Pomerantz Law Firm Reminds of Oct. 15 Deadline ATI PHYSICAL: Robbins Geller Reminds of October 15 Deadline BANDWIDTH INC: Bid to Dismiss Mey Putative Class Suit Pending BAYER CORPORATION: Maiorino Suit Transferred to N.D. Illinois BELLRING BRANDS: Class Suit Against Premier Nutrition Ongoing BIG PICTURE: Martorello Appeals Class Cert. Ruling in Williams Suit BISHOP OF CHARLESTON: Court Refuses to Protect LS3P in Tuition Suit BLACKBAUD INC: Judge Refuses to Dismiss CCPA Claims in Class Action BLOOM ENERGY: Bid to Dismiss Roberts Class Suit Remains Pending BLOOM ENERGY: Consolidated Lincolnshire Police Fund Suit Stayed BLOOM ENERGY: Sanchez Dismisses Individual and Class Action Claims BLUE RIDGE: Assumes Liability in VCB Class Action BLUE RIDGE: Unit Faces Purported Class Suit by Customer BOFI HOLDING: Court OKs Bid for Class Status in Securities Suit BOSTON SCIENTIFIC: Bid to Nix Lotus Edge Related Suit Pending BRAEMAR HOTELS: Managers' Initiated Class Action Underway BRIGHTHOUSE FINANCIAL: Bid to Dismiss Lawrence Suit Pending BRIGHTHOUSE FINANCIAL: Newton Putative Class Suit Ongoing C.H. ROBINSON: Court Amends Scheduling Order in Moore Family Suit CALIFORNIA: Oral Argument in Pivotal Suit Scheduled for November 9 CANADIAN PACIFIC: Faces Class Action Over June 30 Lytton Fire CANOPY GROWTH: Disclosure Related Putative Class Suit Underway CAPITOL WATERTOWN: Bruske FLSA Conditional Status Bid Partly OK'd CHARLES SCHWAB: Bid for Class Cert. in Crago Routing Suit Pending CODEX BEAUTY: Calcano Files ADA Suit in S.D. New York COLUMBIA PUBLIC SCHOOLS: Faces Class Suit Over Mask Mandates COLUMBIA UNIVERSITY: Court Narrows Claims in Brittain Class Suit COSTCO WHOLESALE: Extension of Class Status Deadline Sought CREDIT BUREAU: Bassett and Class Prevail in FDCPA and NCPA Suit CRONOS GROUP: Bid to Nix Consolidated Putative Class Suit Pending CRONOS GROUP: Plaintiff Appeals Dismissal of Bid to Commence Claim CULTURAL CARE: Court Narrows Claims in Posada's Unpaid Wages Suit DIXIE GROUP: Continues to Defend Johnson Class Suit in Georgia DOMINION ENERGY: NND Plaintiffs Appeal on Summary Judgment Pending DRAFTKINGS INC: Continues to Defend New York Putative Class Action DRAFTKINGS INC: DFS Class Settlement Granted Preliminary Approval DROPBOX INC: Final Settlement Approval Hearing Set for Dec. 2 DULUTH, MN: Jorgensen Appeals Ruling in Inmates' Rights Suit EAN SERVICES: Class Certification Filing Due July 15, 2022 EI DU PONT: Continues to Defend PFAS-Related Class Suit EI DU PONT: Continues to Defend PFOA-Related Class Suit in New York EI DU PONT: PFOA-Related Class Suit in NJ Voluntarily Dismissed EI DU PONT: Various Drinking Water Contamination Suits Underway ELEVATE CREDIT: Bid to Dismiss Suit Against Rise Credit Pending ELEVATE CREDIT: Suit Related to TFI Operations Underway ENDO INT'L: Bid to Dismiss Albiges Suit Pending ENDO INT'L: Claims Against PPI in Ranitidine Related Suit Dismissed ENDO INT'L: Continues to Defend Opioid-Related Class Suits ENDO INT'L: Discovery Ongoing in Generic Drug Pricing Litigation ENDO INT'L: Multiple Motions Pending in Bucks County ERF Suit ESSENTIAL UTILITIES: Discovery Ongoing in Suit Over Water Advisory EVERGREEN ALLIANCE: Saavedra Suit Removed to C.D. California FACEBOOK INC: Court Denies Cambridge Analytica Class Certif. FACEBOOK INC: Court Junks IMB Bid for Class Certification FARMLAND PARTNERS: Expert Discovery in Brokop Ongoing FASTLY INC: Bid to Junk Purported Securities Class Suit Pending FEDEX GROUND: Oglesby's Discovery Bid in Unpaid OT Suit Sustained FIFTH THIRD: Court Dismisses Christakis Putative Class Suit FIFTH THIRD: Klopfenstein Wins Bid for Class Certification FIFTH THIRD: Loses Bid to Dismiss Fox Putative Class Suit FIRST COMMONWEALTH: Dismissal of Putative Class Suit Under Appeal FIVE POINT: Bayview Hunters Point Litigation Underway FONTANA & FONTANA: Court Approves Settlement Deal in Bardales Suit GEICO CASUALTY: Court Grants in Part Bid to Dismiss Jones Suit GERBER PRODUCTS: Baby Food Contains Heavy Metals, Garces Suit Says GERMAN AMERICAN BANCORP: Checking Account Practices Suit Ongoing GOOGLE LLC: Jones Appeals Children's Online Privacy Suit Dismissal GOVERNMENT EMPLOYEES: Farris Files Suit in N.D. Texas GREEN DOT: Koffsmon Putative Class Suit Underway in California HANOVER INSURANCE: T&L Catering Appeals Judgment in Insurance Suit IAC/INTERACTIVECORP: Bid to Dismiss Consolidated Class Suit Pending IAC/INTERACTIVECORP: Parties in Drulias Agree to Discontinue Suit JONES FINANCIAL: Anderson Putative Class Suit Underway JONES FINANCIAL: Bland FLSA-Related Class Suit Underway KANAWHA COUNTY, WV: Disabled Students Win Class Certification Bid KANZHUN LTD: Skadden Enters Appearance in Securities Class Action KELLOGG CO: Settlement in Packaging Statement Suit Gets Initial Nod KONINKLIJKE PHILIPS: Devices Contain PE-PUR Foam, Bellotti Says KONINKLIJKE PHILIPS: Levi & Korsinsky Reminds of Oct. 15 Deadline KONINKLIJKE PHILLIPS: Hancock Files Suit in S.D. Mississippi KOPLAN WELSH: Hoffenkamp Files TCPA Suit in N.D. Illinois LIBERTY BROADBAND: Settlement Hearing HFPF Suit Set for Oct. 5 LIFE LINE: Must Respond to Class Cert. Bid by September 13 LIVE VENTURES: Hagens Berman Reminds of October 12 Deadline LLOYD'S LONDON: Class Settlement in Aquilina Suit Has Prelim. Nod LOUISIANA: Compelled to Show CAJUN Data in Humphrey v. LeBlanc LOWE'S HOME: Class Certification in Bartholomew Suit Partly Granted LUCKY SCENT: Calcano Files ADA Suit in S.D. New York MASTERCARD INC: London Court Approves GBP14BB Class Action MATCH GROUP: Candelore Class Suit Still Stayed MATCH GROUP: Crutchfield Securities Class Suit Underway MATCH GROUP: Separation Transaction Related Suit Underway MDL 2966: Claims in Consolidated Xyrem Antitrust Suit Narrowed MEDEX WASTE: Fianna Family Files TCPA Suit in W.D. Arkansas MERCHANTS' CREDIT: Ct. Enters Initial Pretrial Conference Order MERIT MEDICAL: Consolidated Class Suit Underway in California MIDAMERICAN ENERGY: Matousek Appeals ERISA Suit Dismissal MULTIPLAN CORP: One68 Global Master Appointed as Lead Plaintiff MULTIPLAN CORP: Paradis Suit Voluntarily Dismissed MYLIFE.COM INC: Martinez Files ADA Suit in E.D. New York NANTHEALTH INC: Bucks County Employees Retirement Suit Dismissed NATIONAL WESTERN: Bid to Stay Consolidated Baldwin Suit Denied NCR CORPORATION: Discovery in Schertzer Suit v. Cardtronics Ongoing NEKTAR THERAPEUTICS: Damiba Class Suit Voluntarily Dismissed NEKTAR THERAPEUTICS: Mulquin Class Action Ongoing in California NEW YORK PAVING: Court Denies Diaz's Bid for Discovery Sanctions NEXTERA ENERGY: Averts Suit Over Kansas Wind Generation Project OH MY GREEN: $500K Class Settlement in Kastler Suit Has Prelim. OK OMNICELL INC: Bid to Dismiss Heard Putative Class Suit Pending ONFIDO INC: Denial of Arbitration Bid in Sosa BIPA Suit Upheld ORANGE COUNTY, CA: Settles Tolled Roads Class Action for $200MM ORPHAZYME A/S: Rosen Law Firm Reminds of September 7 Deadline P & Z CAROLINA: Ditsworth Appeals Ruling on FLSA Suit Settlement PATRICIA COGNE-FAQUE: Debritto Seeks Rule 23 Class Status PAYLOCITY HOLDING: BIPA Related Putative Class Suit Underway PAYPAL HOLDINGS: Bragar Eagel Announces Securities Class Action PECKHAM INC: Court Conditionally Certifies Wilson Collective Action PEI WEI: Extension of Class Cert. Deadlines Filed in Clarke Suit PENNSYLVANIA INTERSCHOLASTIC: Brown Files ADA Suit in W.D. Pa. PHH MORTGAGE: TDCA Class Claim in Williams Suit Survives POST HOLDINGS: Egg Products Antitrust Class Suit vs. MFI Ongoing PROSHARES TRUST II: Dismissal of Securities Suit Affirmed PROTECH SOLUTIONS: Agreed Confidentiality Order Entered in Acker PROVINCE CANADIENNE: McCarthy Tetrault Attorney Discusses Ruling REASON BRAND: Calcano Files ADA Suit in S.D. New York RIPPLE LABS: Toomey Suit Transferred to N.D. California ROB GRAHAM: Ricard TCPA Suit Removed to S.D. Florida SAMSUNG ELECTRONICS: Faces Suit Over Galaxy Buds Headphone Defect SEAWORLD ENTERTAINMENT: Highfields Capital Suit Underway SELECTQUOTE INC: Rosen Law Firm Reminds of October 15 Deadline SESEN BIO: Bernstein Liebhard Reminds of October 18 Deadline SHANG NOODLE: Han Conditional Certification Bid Partly Granted SIFCO INDUSTRIES: Settlement in Wage-and-Hour Suit Gets Final Nod SIMMONS FIRST: Pace Putative Class Suit Underway SIMMONS FIRST: Settlement Reached in Walkingstick and Fort Suit SIMMONS FIRST: Wilkins Putative Class Suit Underway SOLARWINDS CORP: Bid to Junk Cyber Incident Related Suit Pending SORRENTO THERAPEUTICS: Sept. 2 Hearing on Bid to Junk Zenoff Suit ST. FRANCIS: Grant of Exception of Prescription in Rabun Upheld STATE UNIVERSITY: Duguid Appeals Summary Judgment Ruling STEVEN SCOTT: Order Affirming Summary Judgment in Hagen Reversed SUNEERA INC: Calcano Files ADA Suit in S.D. New York SURGALIGN HOLDINGS: Term Sheet Entered in Lowry Putative Class Suit T-MOBILE USA: Faces Consumer Data Breach Class Action in Wash. T-MOBILE USA: Federman & Sherwood Files Data Breach Class Action TAISHAN GYPSUM: Bayne Suit Moved From N.D. Alabama to N.D. Florida TAPESTRY INC: Blind Users Can't Access Website, Downing Alleges TD BANK: Must Face U.S. Credit Card Class Action TEAM INC: Bid to Remand Thai and Esqueda Suits Pending TEE JAYE'S: Joint Bid to Extend Case Schedule in Cockrell OK'd TELIGENT INC: $6MM Class Settlement to be Heard on Nov. 12 TINDER INC: 9th Cir. Reverses Approval of Class Action Settlement TOTAL INSURANCE: Court Stays Middleton Case Pending Mediation TRAVELERS COMPANIES: E.D. Missouri Dismisses Edwards Class Suit TRUIST FINANCIAL: Discovery Ongoing in Bickerstaff v. SunTrust Bank TRULIEVE INC: Employees & Applicants Class Certified in Lyttle Suit U.S. VIRGIN ISLANDS: Bid to Certify Class in Duncan Suit Denied UBER TECHNOLOGIES: Court Denies Doe's Bid to Disclose Complainants UBER TECHNOLOGIES: Ontario Court Certifies Drivers' Class Action UNIVERSAL HEALTH: Teamsters Local 456 Settlement Granted Final OK US BANCORP: Kessler Topaz Investigates Consumer Class Action VECTOR GROUP: Parsons Class Action Remains Stayed VECTOR GROUP: Young Personal Injury Class Suit Still Stayed VIEW INC: Glancy Prongay & Murray Files Securities Class Action VIEW INC: Kehoe Law Firm Investigates Securities Claims VIMEO INC: Appeal in Acaley BIPA Related Class Suit Pending VIRGINIA: Polak Appeals Summary Judgment Ruling in Labor Suit VISIONS GENTLEMEN'S: Suit Seeks Minimum Wage & OT Under FLSA VIVID SEATS: August 30 Settlement Claims Filing Deadline Set VOYA FINANCIAL: Advance Trust COI Class Suit Ongoing in Colorado WEST AMERICAN: Melcorp. Inc. Appeals Judgment in Insurance Suit WESTMINSTER CHILD: Fails to Pay Overtime, Denton Suit Claims YALLA GROUP: Levi & Korsinsky Reminds of October 12 Deadline ZYNGA INC: Bourgeois Class Suit in Canada Underway ZYNGA INC: Data Incident Related Class Suit Underway ZYNGA INC: Owens Class Action Voluntarily Dismissed [*] Class Action Developments During the Q2 of 2021 Discussed Asbestos Litigation ASBESTOS UPDATE: Ampco-Pittsburgh Has $170K Asbestos Reserve ASBESTOS UPDATE: Avon Products Has 129 PI Cases Pending at June 30 ASBESTOS UPDATE: Ballantyne Strong Still Defends PI Lawsuits ASBESTOS UPDATE: Burlington Northern Defends PI Claims ASBESTOS UPDATE: CarParts.com's Subsidiaries Faces Damage Claims ASBESTOS UPDATE: CIRCOR Intl. Faces Product Liability Claims ASBESTOS UPDATE: Goodyear Tire Has 38,500 Pending Claims at June 30 ASBESTOS UPDATE: Graham Corp Faces Claims Alleging Personal Injury ASBESTOS UPDATE: Intricon Corp and Others Faces Exposure Claims ASBESTOS UPDATE: ITT Inc. Transfers Pending and Future Claims ASBESTOS UPDATE: Manitowoc Co. Has $59.5MM Reserves at June 30 ASBESTOS UPDATE: MetLife Has 1,304 New Personal Injury Claims ASBESTOS UPDATE: Natura &Co' s Subsidiary Faces Numerous PI Lawsuit ASBESTOS UPDATE: Park-Ohio Defends 125 Personal Injury Cases ASBESTOS UPDATE: Pfizer Inc. Faces Personal Injury Lawsuits ASBESTOS UPDATE: Resolute Forest Products Still Defends PI Claims ASBESTOS UPDATE: SPX Corp Paid $8.1 for Asbestos Claims ASBESTOS UPDATE: Vontier Corp Records $68.6MM Gross Liabilities ASBESTOS UPDATE: WestRock Co Faces 1,500 Lawsuits as of June 30 ********* ACM RESEARCH: Hearing on Bid to Junk Kain Suit Set for Sept. 9 -------------------------------------------------------------- ACM Research, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the hearing on the motion to dismiss the putative class action suit entitled, Kain v. ACM Research, Inc., et al., No. 3:20-cv-09241, is set on September 9, 2021. On December 21, 2020, a putative class action lawsuit against the company and three of its executive officers was filed in the U.S. District Court for the Northern District of California under the caption Kain v. ACM Research, Inc., et al., No. 3:20-cv-09241, which we refer to as the Securities Class Action. The complaint alleges claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, and seeks monetary damages in an unspecified amount as well as costs and expenses incurred in the litigation. On April 15, 2021, the court appointed Mr. Kain as lead plaintiff, finding that no better-suited candidates emerged during the statutory sixty-day period following public notice of the lawsuit. On May 27, 2021, defendants filed a motion to dismiss Mr. Kain's complaint. Defendants' motion to dismiss is fully briefed and currently scheduled to be heard by the court on September 9, 2021. ACM said, "Our management believes the claims are without merit and intend to vigorously defend this litigation. We are currently unable to predict the outcome of this lawsuit and therefore cannot determine the likelihood of loss nor estimate a range of possible loss." ACM Research, Inc. supplies advanced, innovative capital equipment developed for the global semiconductor industry. Fabricators of advanced integrated circuits, or chips, can use the company's wet-cleaning and other front-end processing tools in numerous steps to improve product yield, even at increasingly advanced process nodes. The company is based in Fremont, California. ACTIVISION BLIZZARD: ClaimsFiler Reminds of October 4 Deadline -------------------------------------------------------------- ClaimsFiler, a FREE shareholder information service, reminds investors of pending deadlines in the following securities class action lawsuits: Activision Blizzard, Inc. (ATVI) Class Period: 8/4/2016 - 7/27/2021 Lead Plaintiff Motion Deadline: October 4, 2021 SECURITIES FRAUD To learn more, visit https://claimsfiler.com/cases/nasdaq-atvi-2/ Zymergen Inc. (ZY) Class Period: purchase of shares issued either in or after the April 2021 Initial Public Offering Lead Plaintiff Motion Deadline: October 4, 2021 MISLEADING PROSPECTUS To learn more, visit https://claimsfiler.com/cases/nasdaq-zy/ Annovis Bio, Inc. (ANVS) Class Period: 5/21/2021 - 7/28/2021 Lead Plaintiff Motion Deadline: October 18, 2021 SECURITIES FRAUD To learn more, visit https://claimsfiler.com/cases/us-trading-venue-anvs/ If you purchased shares of the above companies and would like to discuss your legal rights and your right to recover for your economic loss, you may, without obligation or cost to you, contact us toll-free (844) 367-9658 or visit the case links above. If you wish to serve as a Lead Plaintiff in the class action, you must petition the Court on or before the Lead Plaintiff Motion deadline. About ClaimsFiler ClaimsFiler has a single mission: to serve as the information source to help retail investors recover their share of billions of dollars from securities class action settlements. At ClaimsFiler.com, investors can: (1) register for free to gain access to information and settlement websites for various securities class action cases so they can timely submit their own claims; (2) upload their portfolio transactional data to be notified about relevant securities cases in which they may have a financial interest; and (3) submit inquiries to the Kahn Swick & Foti, LLC law firm for free case evaluations. To learn more about ClaimsFiler, visit www.claimsfiler.com [GN] ADAPTHEALTH CORP: Faille Purported Class Suit Underway ------------------------------------------------------ AdaptHealth Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a purported class action suit initiated by Robert Charles Faille Jr. On July 29, 2021, Robert Charles Faille Jr., a purported shareholder of the Company, filed a purported class action complaint against the Company and certain of its officers in the United States District Court for the Eastern District of Pennsylvania. The Complaint purports to be asserted on behalf of a class of persons who purchased the Company's stock between November 11, 2019 and July 16, 2021. The Complaint generally alleges that the Company and certain of its officers violated federal securities laws by making allegedly false and misleading statements and/or failing to disclose material information regarding the Company's organic growth trajectory. The Complaint seeks unspecified damages. The Company intends to vigorously defend against the allegations contained in the Complaint, but there can be no assurance that the defense will be successful. AdaptHealth Corp. is a national leader in providing patient-centered, healthcare-at-home solutions including home medical equipment, medical supplies, and related services. The Company focuses primarily on providing (i) sleep therapy equipment, supplies and related services (including CPAP and bi PAP services) to individuals suffering from obstructive sleep apnea, (ii) medical devices and supplies to patients for the treatment of diabetes (including continuous glucose monitors and insulin pumps), (iii) home medical equipment to patients discharged from acute care and other facilities, (iv) oxygen and related chronic therapy services in the home, and (v) other HME medical devices and supplies on behalf of chronically ill patients with wound care, urological, incontinence, ostomy and nutritional supply needs. The company is based in Plymouth Meeting, Pennsylvania. ANHEUSER-BUSCH INBEV: Jackson's Class Cert. Bid Denied as Moot -------------------------------------------------------------- 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 denying as moot motion to certify class. The suit alleges violation of the Magnuson-Moss Warranty Act involving torts -- personal injury. Anheuser-Busch is a multinational drink and brewing company based in Leuven, Belgium.[CC] ANNOVIS BIO: Bernstein Liebhard Reminds of October 18 Deadline -------------------------------------------------------------- Bernstein Liebhard, a nationally acclaimed investor rights law firm, on Aug. 18 disclosed that a securities class action lawsuit has been filed on behalf of investors who purchased or acquired the securities of Annovis Bio, Inc. ("Annovis Bio" or the "Company") (NYSE: ANVS) from May 21, 2021 through July 28, 2021 (the "Class Period"). The lawsuit filed in the United States District Court for the Eastern District of Pennsylvania alleges violations of the Securities Act of 1934. If you purchased Annovis Bio securities, and/or would like to discuss your legal rights and options please visit Annovis Bio Shareholder Class Action Lawsuit or contact Rujul Patel toll free at (877) 779-1414 or rpatel@bernlieb.com The Complaint alleges that, throughout the Class Period, Defendants made materially false and/or misleading statements as well as failed to disclose adverse facts about the Company's business, operations, and prospects. On July 28, 2021, after the market closed, the Company announced that its Alzheimer's and Parkinson's drug, Posiphen, failed to show statistically significant success relative to the placebo in clinical trials. On this news, the price of Annovis Bio shares fell $65.94 per share, or 60%, to close at $43.50 per share on July 29, 2021, on unusually heavy trading volume. If you wish to serve as lead plaintiff, you must move the Court no later than October 18, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased Annovis Bio securities, and/or would like to discuss your legal rights and options please visit https://www.bernlieb.com/cases/annovisbioinc-anvs-shareholder-class-action-lawsuit-fraud-stock-431/apply/ or contact Rujul Patel toll free at (877) 779-1414 or rpatel@bernlieb.com Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. [GN] APHRIA INC: Ont. Court Allows Securities Class Action to Proceed ---------------------------------------------------------------- On August 6, 2021, the Ontario Superior Court of Justice granted the plaintiff in Vecchio Longo Consulting Services Inc. v. Aphria Inc. et. al. (Court file No. CV-19-00614086-00CP) (the "Action") leave to proceed, with a global securities class action for misrepresentations pursuant to section 138.3 of the Ontario Securities Act against Aphria Inc. and its former officers and directors Victor Neufeld and Cole Cacciavillani (the "Aphria Defendants"). In the same decision, the Court certified this secondary market shareholder claim as a class proceeding (the "Secondary Market Claim"), and appointed Vecchio Longo Consulting Services Inc. as representative plaintiff. In addition, the Court certified the misrepresentation claims in the Action pursuant to section 130 of the Ontario Securities Act ("Prospectus Claim") as a class action against the Aphria Defendants and securities underwriters Canaccord Genuity Corp., Clarus Securities Inc., Cormark Securities Inc., Haywood Securities Inc., and Infor Financial Group Inc. (the "Underwriters"), conditional upon class counsel bringing a motion within one hundred days of the decision for the appointment of a representative plaintiff for class members that purchased Aphria shares pursuant to a $258 million prospectus offering made by Aphria that closed on June 28, 2018 ("Prospectus Purchasers"). To facilitate the identification of Prospectus Purchasers who may serve as a representative plaintiff, the Underwriters are each ordered to deliver within thirty days of the decision an affidavit listing their respective purchasers of shares in the prospectus offering. Subject to the conditional certification of the Prospectus Claim, the class is defined as: "All persons other than Excluded Persons, wherever they may reside or be domiciled, who acquired Aphria common shares during the Class Period, where Excluded Persons are defined as Defendants, their past and present subsidiaries, affiliates, officers, directors, senior employees, partners, legal representatives, heirs, predecessors, successors and assigns, and any individual who is a member of the immediate family of an Individual Defendant." The Class Period is defined as "the period of time after 07:00 ET January 29, 2018 until 08:25 ET December 3, 2018." Formal Notice and Opt-Out provisions will be by further Order of the Court. URL: http://www.rochongenova.com Contact Information: www.rochongenova.com [GN] APOLLO GLOBAL: Bid to Dismiss Fongers Suit Pending -------------------------------------------------- Apollo Global Management, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the defendants' motion to dismiss the putative class action suit initiated by Benjamin Fongers, is pending. On November 1, 2019, plaintiff Benjamin Fongers filed a putative class action in Illinois Circuit Court, Cook County, against CareerBuilder, LLC and AGM Inc. Plaintiff alleges that in March 2019, CareerBuilder changed its compensation plan so that sales representatives such as Fongers would (i) receive reduced commissions; and (ii) only be able to receive commissions for accounts they originated that were not reassigned to anyone else, a departure from the earlier plan. Plaintiff also claims that the plan applied retroactively to deprive sales representatives of commissions to which they were earlier entitled. Plaintiff alleges that AGM Inc. exercises complete control over CareerBuilder and thus, CareerBuilder acts as AGM Inc.'s agent. Based on these allegations, Plaintiff alleges claims against both defendants for breach of written contract, breach of implied contract, unjust enrichment, violation of the Illinois Sales Representative Act, and violation of the Illinois Wage and Payment Collection Act. The defendants removed the action to the Northern District of Illinois on December 5, 2019, and Plaintiff moved to remand on January 6, 2020. On October 21, 2020, the District Court granted the motion to remand. On January 11, 2021, the District Court ordered the Clerk of Court to take the necessary steps to transfer the case back to Illinois Circuit Court, Cook County. On March 8, 2021, Plaintiff filed a motion under 28 U.S.C. Section 1447(c) to recover attorneys' fees of approximately $35,000 for the remand briefing. Defendants filed their opposition on March 31, 2021, and Plaintiff replied on April 14, 2021. Defendants filed motions to dismiss the complaint in the Illinois Circuit Court, Cook County on June 11; plaintiff filed his opposition briefs on July 23; defendants' replies are due August 13; and a status conference is set for August 18, 2021. CareerBuilder has also filed a Motion for a Protective Order and to Stay Discovery pending the outcome of the motions to dismiss. That motion will be fully briefed on July 26, 2021. Apollo believes the claims in this action are without merit. Because this action is in the early stages, no reasonable estimate of possible loss, if any, can be made at this time. Apollo Global Management, Inc. is a publicly owned investment manager. The firm primarily provides its services to endowment and sovereign wealth funds, as well as other institutional and individual investors. It manages client-focused portfolios. The firm was formerly known as Apollo Global Management, LLC. Apollo Global Management, Inc. was founded in 1990 and is headquartered in New York City, with additional offices in North America, Asia and Europe. APOLLO GLOBAL: Bid to Junk Suit Over PlayAGS Disclosures Pending ---------------------------------------------------------------- Apollo Global Management, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss filed in the putative class action suit against PlayAGS Inc., is pending. On August 4, 2020, a putative class action complaint was filed in the United States District Court for the District of Nevada against PlayAGS Inc., all of the members of PlayAGS's board of directors (including three directors who are affiliated with Apollo), certain underwriters of PlayAGS (including Apollo Global Securities, LLC), as well as AGM Inc., Apollo Investment Fund VIII, L.P., Apollo Gaming Holdings, L.P., and Apollo Gaming Voteco, LLC. The complaint asserts claims arising under the Securities Act of 1933 in connection with certain secondary offerings of PlayAGS stock conducted in August 2018 and March 2019, alleging that the registration statements issued in connection with those offerings did not fully disclose certain business challenges facing PlayAGS. Such claims are asserted against all defendants, including Apollo Global Securities, LLC and the Apollo Defendants, as well as all directors (including the directors affiliated with Apollo). The complaint further asserts a control person claim under Section 20(a) of the Securities Exchange Act of 1934 against the Apollo Defendants and the director defendants (including the directors affiliated with Apollo), alleging that the Apollo Defendants and the director defendants were responsible for certain misstatements and omissions by PlayAGS about its business during a putative class period from May 3, 2018 through August 7, 2019. Plaintiffs filed a consolidated amended complaint on January 21, 2021, and they filed a further amended complaint on March 25, 2021. Apollo filed a motion to dismiss on May 24, 2021. Plaintiffs filed an opposition to the motion to dismiss on July 23, 2021. Apollo's reply brief is due September 13, 2021. Apollo believes the claims in this action are without merit. Because this action is in the early stages, no reasonable estimate of possible loss, if any, can be made at this time. Apollo Global Management, Inc. is a publicly owned investment manager. The firm primarily provides its services to endowment and sovereign wealth funds, as well as other institutional and individual investors. It manages client focused portfolios. The firm was formerly known as Apollo Global Management, LLC. Apollo Global Management, Inc. was founded in 1990 and is headquartered in New York City, with additional offices in North America, Asia and Europe. APOLLO GLOBAL: Bid to Toss Patel Derivative Class Suit Pending -------------------------------------------------------------- Apollo Global Management, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss filed in the putative stockholder derivative and class action suit initiated by Vrajeshkumar Patel, is pending. On May 29, 2020, plaintiff Vrajeshkumar Patel filed a putative stockholder derivative and class action complaint in the Delaware Court of Chancery against Talos Energy, Inc., all of the members of Talos's board of directors (including two Apollo partners), Riverstone Holdings, LLC, AGM Inc., and Guggenheim Securities, LLC in connection with the acquisition of certain assets from Castex Energy 2014, LLC and ILX Holdings, LLC in February 2020. The complaint asserts, on behalf of a putative class of shareholders and Talos, direct and derivative claims against Apollo, Riverstone, and the individual defendants for breach of their fiduciary duties. The plaintiff alleges that Apollo and Riverstone comprise a controlling shareholder group. The complaint seeks, among other relief, class certification and unspecified money damages. On August 4, 2020, the defendants filed motions to dismiss the complaint in its entirety. The motion is now fully briefed and oral argument was held on February 19, 2021. On May 17, 2021, Vice-Chancellor Zurn sent a letter to counsel ordering that the Riverstone funds and Apollo funds that hold the relevant Talos stock be joined as necessary parties. The parties filed a stipulation, which was entered by the court on June 7, 2021, adding Riverstone Talos Energy Equityco LLC, Riverstone Talos Energy Debtco LLC, Apollo Talos Holdings, L.P., and AP Talos Energy Debtco LLC as defendants in the action. These parties adopted the arguments previously advanced by the Riverstone and Apollo defendants, and did not engage in any separate briefing or argument. Apollo believes the claims in this action are without merit. Because this action is in the early stages, no reasonable estimate of possible loss, if any, can be made at this time. Apollo Global Management, Inc. is a publicly owned investment manager. The firm primarily provides its services to endowment and sovereign wealth funds, as well as other institutional and individual investors. It manages client-focused portfolios. The firm was formerly known as Apollo Global Management, LLC. Apollo Global Management, Inc. was founded in 1990 and is headquartered in New York City, with additional offices in North America, Asia and Europe. APOLLO GLOBAL: Kansas Firefighters Pension Suit vs Presidio Junked ------------------------------------------------------------------ Apollo Global Management, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the Delaware Court of Chancery granted the defendants' motion to dismiss the putative class action suit entitled, Firefighters Pension System of City of Kansas City, Missouri Trust v. Presidio, Inc. et al, C.A. No. 2019-0839-JTL. On October 21, 2019, a putative class action complaint was filed in the Delaware Court of Chancery against Presidio, Inc., all of the members of Presidio's board of directors (including five directors who are affiliated with Apollo), and BC Partners Advisors L.P. and Port Merger Sub, Inc. challenging the then-pending acquisition of Presidio by BCP (the "Presidio Merger"). The action is captioned Firefighters Pension System of City of Kansas City, Missouri Trust v. Presidio, Inc. et al, C.A. No. 2019-0839-JTL. The original complaint alleged that the Presidio directors breached their fiduciary duties in connection with the negotiation of the Presidio Merger and that the disclosures Presidio made in its filings with the SEC in connection with the Presidio Merger omitted material information, and that BCP aided and abetted those alleged breaches. On November 5, 2019, the Court of Chancery held a hearing on a motion by plaintiffs to preliminarily enjoin the stockholder vote and denied that motion. On January 28, 2020, following the closing of the Presidio Merger, plaintiffs filed an amended class action complaint, adding as defendants AGM Inc. and AP VIII Aegis Holdings, L.P. and LionTree Advisors, LLC (Presidio's financial advisor in connection with the Presidio Merger). The amended complaint alleges, among other things, that the Presidio directors breached their fiduciary duties in connection with the Presidio Merger, that the filings with the SEC in connection with the Presidio Merger omitted material information, that the Apollo Defendants were controlling stockholders of Presidio and breached their alleged fiduciary duties to Presidio's public stockholders, and that BCP, LionTree and the Apollo Defendants aided and abetted breaches of fiduciary duties. The amended complaint seeks, among other relief, declaratory relief, class certification, and unspecified money damages. The defendants completed briefing on motions to dismiss the amended complaint on April 30, 2020. On January 29, 2021, the Court of Chancery issued an opinion and accompanying orders granting the Apollo Defendants' motion to dismiss, granting the motions to dismiss filed by the directors other than Presidio's CEO, and denying motions to dismiss as to BCP, Liontree, and Presidio's CEO. Apollo believes the claims in this action are without merit. Apollo Global Management, Inc. is a publicly owned investment manager. The firm primarily provides its services to endowment and sovereign wealth funds, as well as other institutional and individual investors. It manages client-focused portfolios. The firm was formerly known as Apollo Global Management, LLC. Apollo Global Management, Inc. was founded in 1990 and is headquartered in New York City, with additional offices in North America, Asia and Europe. APOLLO GLOBAL: Settlement Reached in Blair Class Suit ----------------------------------------------------- Apollo Global Management, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that pursuant to a settlement reached by the parties in the class action suit initiated by Zachary Blair, the court dismissed with prejudice the plaintiff's individual claims and without prejudice the putative class claims against AGM Inc. and the Apollo Funds. On March 12, 2020, AGM Inc. and several investment funds managed by subsidiaries of AGM Inc. (the "Apollo Funds") were added as defendants in a class action filed by plaintiff Zachary Blair on December 7, 2017, in the Superior Court of California. Plaintiff alleges he is a former employee of Classic Party Rentals, a party equipment rental company previously owned by the Apollo Funds. Plaintiff alleges that Classic Party Rentals failed to comply with California wage and hour and related laws, and also has asserted claims based on various provisions of the California labor code and California's unfair competition laws. On October 11, 2019, the court certified a class of current and former non-exempt drivers, assistant drivers, and organizer employees of Classic Party Rentals who were paid on an hourly basis and who worked at Classic Party Rentals in California at any time from December 7, 2013, through the date of the class certification order. After being served with the Complaint in July 2020, a co-defendant removed the matter to the U.S. District Court for the Eastern District of California on August 24, 2020, and AGM Inc. and the Apollo Funds filed a motion to dismiss all claims against them on September 23, 2020. On March 24, 2021, the motion to dismiss was granted and the court dismissed the complaint without prejudice. On June 21, 2021, pursuant to a settlement reached by the parties, the court dismissed with prejudice the plaintiff's individual claims and without prejudice the putative class claims against AGM Inc. and the Apollo Funds. Apollo Global Management, Inc. is a publicly owned investment manager. The firm primarily provides its services to endowment and sovereign wealth funds, as well as other institutional and individual investors. It manages client-focused portfolios. The firm was formerly known as Apollo Global Management, LLC. Apollo Global Management, Inc. was founded in 1990 and is headquartered in New York City, with additional offices in North America, Asia and Europe. ARDELYX INC: Robbins Geller Reminds of September 28 Deadline ------------------------------------------------------------ Robbins Geller Rudman & Dowd LLP on Aug. 17 disclosed that purchasers of Ardelyx Inc. securities between August 6, 2020 and July 19, 2021, inclusive ("Class Period") have until September 28, 2021 to seek appointment as lead plaintiff in the Ardelyx class action lawsuit. The Ardelyx class action lawsuit charges Ardelyx and certain of its top executives with violations of the Securities Exchange Act of 1934. The Ardelyx class action lawsuit (Strezsak v. Ardelyx Inc., No. 21-cv-05868) was commenced on July 30, 2021 in the Northern District of California as is assigned to Judge Haywood S. Gilliam, Jr. If you wish to serve as lead plaintiff of the Ardelyx class action lawsuit, please provide your information by clicking here. You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the Ardelyx class action lawsuit must be filed with the court no later than September 28, 2021. CASE ALLEGATIONS: In June 2020, Ardelyx submitted a New Drug Application ("NDA") to the U.S. Food and Drug Administration ("FDA") for Ardelyx's lead product candidate, tenapanor, a supposedly first-in-class medicine for the control of serum phosphorus in adult patients with chronic kidney disease on dialysis. The FDA accepted Ardelyx's NDA in September 2020 and set a Prescription Drug User Fee Act date of April 29, 2021. The Ardelyx class action lawsuit alleges that Ardelyx repeatedly lauded this development, highlighting the FDA's acceptance and review of the NDA, supported by so-called "successful" Phase 3 studies, in each subsequently filed quarterly report and in the Company's 2020 Annual Report. However, the Ardelyx class action lawsuit further alleges that, throughout the Class Period, defendants made materially false and misleading statements regarding tenapanor and the likelihood that it would be approved by the FDA. Specifically, the Ardelyx class action lawsuit alleges that defendants possessed, were in control over, and, as a result, knew (or had reason to know) that the data submitted to support the NDA was insufficient in that it showed a lack of clinical relevance of the drug's treatment effect, making it foreseeably likely (if not certain) that the FDA would not approve the drug. On July 19, 2021, Ardelyx announced that it had received a letter from the FDA, dated July 13, 2021, that said the FDA had found deficiencies that precluded discussion around the would-be labeling and post-marketing requirements for tenapanor. The FDA revealed that it detected issues with both the size and clinical relevance of the drug's treatment effect. On this news, Ardelyx's stock price fell nearly 74%, damaging investors. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Ardelyx securities during the Class Period to seek appointment as lead plaintiff in the Ardelyx class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the Ardelyx class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the Ardelyx class action lawsuit. An investor's ability to share in any potential future recovery of the Ardelyx class action lawsuit is not dependent upon serving as lead plaintiff. ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: With 200 lawyers in 9 offices nationwide, Robbins Geller Rudman & Dowd LLP is the largest U.S. law firm representing investors in securities class actions. Robbins Geller attorneys have obtained many of the largest shareholder recoveries in history, including the largest securities class action recovery ever -- $7.2 billion -- in In re Enron Corp. Sec. Litig. The 2020 ISS Securities Class Action Services Top 50 Report ranked Robbins Geller first for recovering $1.6 billion for investors last year, more than double the amount recovered by any other securities plaintiffs' firm. Please visit https://www.rgrdlaw.com/firm.html for more information. Attorney advertising. Past results do not guarantee future outcomes. Services may be performed by attorneys in any of our offices. [GN] ARDIAN CORP: Sept. 17 Class Cert Reply Extension Sought ------------------------------------------------------- In the class action lawsuit captioned as Avila v. Ardian Corp, et al., Case No. 1:18-cv-04795-FB-TAM (E.D.N.Y.), the Parties ask the Court to enter an order extending the briefing schedule for the Plaintiff's Class Certification motion. The parties propose the following date to be So ordered by the Court: Reply: September 17, 2021 A copy of the Parties' motion dated August 24, 2021 is available from PacerMonitor.com at https://bit.ly/3muQtTz at no extra charge.[CC] The Defendants are represented by: Vincent M. Avery, Esq. FORD HARRISON 366 Madison Avenue 7th Floor New York, NY 10017 Telephone: (212) 453-5900 Facsimile: (212) 453-5959 E-mail: VAvery@fordharrison.com ARROW FINANCIAL: Mediation in Richard to be Completed on Oct. 29 ---------------------------------------------------------------- Arrow Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that mediation in the putative class action suit initiated by Daphne Richard to be completed by October 29, 2021. On July 1, 2020, Daphne Richard, a customer of Glens Falls National or GFNB filed a putative class action complaint against GFNB in the United States District Court for the Northern District of New York. The complaint alleges that GFNB assessed overdraft fees on certain transactions drawn on her checking account without having sufficiently disclosed its overdraft-fee practices in its account agreement. Ms. Richard, on behalf of two purported classes, seeks compensatory damages, disgorgement of profits, statutory damages, treble damages, enjoinment of the conduct complained of, and costs and fees. The complaint is similar to complaints filed against other financial institutions pertaining to overdraft fees. Arrow denies any wrongdoing and the case is being vigorously defended. The case has been referred to mediation, which the Court has ordered to be completed by October 29, 2021. Arrow Financial Corporation is a multi-bank holding company with $3 billion in assets. Based in Glens Falls, New York, the company's family of companies includes Glens Falls National Bank and Trust Company, Saratoga National Bank and Trust Company, and Upstate Agency. ASPEN ANESTHESIA: Class Action Over FDCPA Violation Dismissed ------------------------------------------------------------- Rick Carroll, writing for The Aspen Times, reports that three Aspen-based companies hit with unrelated complaints in Denver federal court about their business practices are no longer on the defense. Quiet settlements in three attempted class-action lawsuits have been reached over the past two months, according to court records. The most recent dismissal, recorded Aug. 17, involved Aspen Anesthesia, which had been sued under the Fair Debt Collection Practices Act. Potential class-actions against Aspen Skiing Co., accused of violating the Americans with Disabilities Act, and marijuana shop Roots RX, sued under the Telephone Consumer Protection Act, were respectively dismissed June 25 and July 26. Among all of the dismissals, two common denominators were that details of the settlement agreements were not made public in the case files and the parties on both sides in each suit voluntarily and jointly agreed to their terminations. In the Skico case, the June settlement meant the nixing of a pretrial conference scheduled the same month in Colorado federal court. Douglas County resident David Katt had accused the ski-area operator of having a website that was inaccessible to blind users, which included the plaintiff. His suit, filed in August 2020, alleged Skico violated the ADA by not making its website compatible with screen-reading software "that vocalizes the visual information found on a computer screen or displays the content on a refreshable Braille display." Skico attorneys countered in court filings, and cited previous circuit court decisions supporting their argument, that Katt's claim was not legitimate because he had failed to demonstrate how the company's website actually denied him access to the company's services. Katt also was a "serial filer" with multiple ADA website cases against companies he did not patronize, Skico attorneys argued. In their June court filing, both parties "agreed to a dismissal with prejudice, with each party to bear its own costs and attorneys' fees. By the filing of this Stipulation, the above-captioned civil action is deemed resolved and the case shall be closed." A case dismissed with prejudice cannot be filed again. The Roots RX suit settled with hardly any arguments publicly exchanged. In that case, Miami resident Kathryn Potter -- both "individually and on behalf of all others similarly situated" -- sued on the contention that she was repeatedly receiving unwanted, promotional text messages from the pot shop, despite her pleas to the company to stop. The suit was filed April 19, and Roots RX never got a chance to file a formal response because a settlement was reached June 21 and the case was dismissed July 26, according to court documents. Attorneys on both sides did not respond to messages seeking comment about the settlement. Since the lawsuit's filing, however, Roots has ceased use of its advertorial text-messaging service. "Each party shall bear their own respective costs and attorneys' fees. This Stipulation for Dismissal disposes of the entire actions," said the joint stipulation of dismissal. Likewise in the Aspen Anesthesia case, "the parties hereby stipulate and agreed to dismiss with prejudice the entire action against all parties," said the filing. Rafael Navarro of Carbondale used a California firm to sue the practice on accusations that it ran afoul of the Fair Debt Collection Practices Act when the wrong billing party was identified in a fifth and final notice demanding payment of $3,150. Counsel for Aspen Anesthesia in court filings argued that it was being targeted simply over a clerical error committed by a third-party billing agency. "Aspen Anesthesia is an anesthesiology practice, not a debt collecting business," said a motion to dismiss the case filed June 17. "The principal purpose of Aspen Anesthesia is to provide critical medical services to a remote community. The medical practice's staff are focused entirely on providing care to their patients. They do not have collateral duties -- much less primary duties -- related to collecting debts for other people or businesses." Attorneys for both sides in the dispute did not respond to messages seeking comment. [GN] ATI PHYSICAL: Hagens Berman Reminds of October 15 Deadline ---------------------------------------------------------- Hagens Berman urges ATI Physical Therapy, Inc. (NYSE:ATIP) investors and Fortress Value Acquisition Corp. II (NYSE: FVII) investors with significant losses to submit your losses now. Class Period: Apr. 1, 2021 - July 23, 2021 Lead Plaintiff Deadline: Oct. 15, 2021 Visit:www.hbsslaw.com/investor-fraud/ATIP Contact An Attorney Now:ATIP@hbsslaw.com 844-916-0895 ATI Physical Therapy, Inc. (ATIP/ FVII) Securities Class Action: The investigation focuses on statements by ATI Physical Therapy, its senior management, Fortress, and others concerning ATI Physical Therapy's financial performance, operations and business prospects leading up to and after its merger with special purpose acquisition company Fortress Value Acquisition Corp. II that closed on or about June 16, 2021. More specifically, ATI Physical Therapy, senior management, and others have touted the company's growth opportunities through new clinic openings and accelerated hiring. But on July 26, 2021, slightly a month after the merger closed, ATI Physical Therapy reported disappointing Q2 2021 financial results and slashed its full year revenue expectations by as much as 12%, blaming the dismal outlook on accelerated attrition of physical therapists and a corresponding reduction in estimated new clinic openings. The company also disclosed it "has determined that the revision to its 2021 forecast constitutes an interim triggering event that requires further analysis with respect to potential impairment to goodwill and trade name intangible assets." Then, on July 28, 2021, Barrington Research reportedly accused ATI of failing to provide "a good defense for why the company's original guidance ever made sense," stated "[w]e are all shocked by what has unfolded at ATI," and concluded "ATI has, unfortunately, fully earned the time we believe it will spend in the penalty box." Most recently, on Aug. 9, 2021, ATI announced its CEO (Labeed Diab) left the company effective immediately. These events sent the price of ATI Physical Therapy shares crashing lower. "We're focused on investors' losses and whether company insiders overstated ATI Physical Therapy's asset values and expected 2021 revenues," said Reed Kathrein, the Hagens Berman partner leading the investigation. If you invested in ATI Physical Therapy or Fortress and have significant losses, or have knowledge that may assist the firm's investigation, click here to discuss your legal rights with Hagens Berman. Whistleblowers: Persons with non-public information regarding ATI Physical Therapy or Fortress should consider their options to help in the investigation or take advantage of the SEC Whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 844-916-0895 or email ATIP@hbsslaw.com. About Hagens Berman Hagens Berman is a national law firm with eight offices in eight cities around the country and over eighty attorneys. The firm represents investors, whistleblowers, workers and consumers in complex litigation. More about the firm and its successes is located at hbsslaw.com. CONTACT: Reed Kathrein, 844-916-0895 [GN] ATI PHYSICAL: Pomerantz Law Firm Reminds of Oct. 15 Deadline ------------------------------------------------------------ Pomerantz LLP on Aug. 23 disclosed that a class action lawsuit has been filed against ATI Physical Therapy, Inc. ("ATI" or the "Company") (NYSE: ATIP) f/k/a Fortress Value Acquisition Corp. II ("FVAC") and certain of its officers. The class action, filed in the United States District Court for the Northern District of Illinois, Eastern Division, and docketed under 21-cv-04349, is on behalf of persons and entities that: (a) purchased or otherwise acquired ATI securities between April 1, 2021 and July 23, 2021, inclusive (the "Class Period"); and/or (b) held FVAC Class A common stock as of May 24, 2021 and were eligible to vote at FVAC's June 15, 2021 special meeting. Plaintiffs pursue claims against the Defendants under the Securities Exchange Act of 1934 (the "Exchange Act"). If you are a shareholder who (a) purchased or otherwise acquired ATI's securities during the Class Period, and/or (b) held FVAC Class A common stock as of May 24, 2021 and were eligible to vote at FVAC's June 15, 2021 special meeting, you have until October 15, 2021 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. FVAC was a special purpose acquisition company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization, or similar business combination with one or more businesses. ATI is an outpatient physical therapy company. It owns and operates nearly 900 physical therapy clinics across 25 states. On June 17, 2021, ATI became public via a business combination with FVAC ("Business Combination"). The complaint alleges that, throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that ATI was experiencing attrition among its physical therapists; (2) that ATI faced increasing competition for clinicians in the labor market; (3) that, as a result of the foregoing, the Company faced difficulties retaining therapists and incurred increased labor costs; (4) that, as a result of the labor shortage, the Company would open fewer new clinics; and (5) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On July 26, 2021, before the market opened, ATI reported its financial results for second quarter 2021, the period in which the Business Combination was completed. Among other things, ATI reported that "the acceleration of attrition among [its] therapists in the second quarter and continuing into the third quarter, combined with the intensifying competition for clinicians in the labor market, prevented us from being able to meet the demand we have and increased our labor costs." Though ATI was implementing certain remedial actions, the Company reduced its fiscal 2021 forecast due to the foregoing factors. On this news, the Company's share price fell $3.62, or 43%, to close at $4.72 per share on July 26, 2021, on unusually heavy trading volume. The share price continued to decline the next trading session by as much as 19%. Pomerantz LLP, with offices in New York, Chicago, Los Angeles, Paris, and Tel Aviv, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, Pomerantz pioneered the field of securities class actions. Today, more than 85 years later, Pomerantz continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomlaw.com. CONTACT: Robert S. Willoughby Pomerantz LLP rswilloughby@pomlaw.com 888-476-6529 ext. 7980 www.pomerantzlaw.com [GN] ATI PHYSICAL: Robbins Geller Reminds of October 15 Deadline ----------------------------------------------------------- The ATI Physical Therapy class action lawsuit charges ATI Physical Therapy, Inc. f/k/a Fortress Value Acquisition Corp. II ("FVAC") (NYSE: ATIP) and certain of their top executives and directors with violations of the Securities Exchange Act of 1934. The ATI Physical Therapy class action lawsuit seeks to represent: (a) purchasers of ATI Physical Therapy securities between April 1, 2021 and July 23, 2021, inclusive (the "Class Period"); and/or (b) holders of FVAC Class A common stock as of May 24, 2021 who were eligible to vote at FVAC's June 15, 2021 special meeting. The ATI Physical Therapy class action lawsuit was commenced on August 16, 2021 in the Northern District of Illinois and is captioned Burbige v. ATI Physical Therapy, Inc. f/k/a Fortress Value Acquisition Corp. II, No. 21-cv-04349. If you wish to serve as lead plaintiff of the ATI Physical Therapy class action lawsuit you can contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the ATI Physical Therapy class action lawsuit must be filed with the court no later than October 15, 2021. CASE ALLEGATIONS: FVAC was a special purpose acquisition company ("SPAC" or "blank check" company") formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization, or similar business combination with one or more businesses. ATI Physical Therapy is an outpatient physical therapy company that owns and operates nearly 90 physical therapy clinics across 25 states. On June 17, 2021, ATI Physical Therapy became public via a business combination with FVAC. The ATI Physical Therapy class action lawsuit alleges that, throughout the Class Period, defendants made false and misleading statements and failed to disclose that: (i) ATI Physical Therapy was experiencing attrition among its physical therapists; (ii) ATI Physical Therapy faced increasing competition for clinicians in the labor market; (iii) as a result, ATI Physical Therapy faced difficulties retaining therapists and incurred increased labor costs; (iv) given the labor shortage, ATI Physical Therapy would open fewer new clinics; and (v) consequently, defendants' positive statements about ATI Physical Therapy's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On July 26, 2021, ATI Physical Therapy reported its financial results for the second quarter of 2021, the period in which the business combination was completed. Among other things, ATI Physical Therapy reported that "the acceleration of attrition among [its] therapists in the second quarter and continuing into the third quarter, combined with the intensifying competition for clinicians in the labor market, prevented us from being able to meet the demand we have and increased our expectations for labor costs." Though ATI Physical Therapy was implementing certain remedial actions, ATI Physical Therapy reduced its fiscal 2021 forecast due to the foregoing factors. On this news, ATI Physical Therapy's share price fell 43%. ATI Physical Therapy's share price continued to decline the next trading session by as much as 19%, further damaging investors. Robbins Geller Rudman & Dowd LLP has launched a dedicated SPAC Task Force to protect investors in blank check companies and seek redress for corporate malfeasance. Comprised of experienced litigators, investigators, and forensic accountants, the SPAC Task Force is dedicated to rooting out and prosecuting fraud on behalf of injured SPAC investors. The rise in blank check financing poses unique risks to investors. Robbins Geller Rudman & Dowd LLP's SPAC Task Force represents the vanguard of ensuring integrity, honesty, and justice in this rapidly developing investment arena. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased: (a) ATI Physical Therapy securities during the Class Period; and/or (b) held FVAC Class A common stock as of May 24, 2021 and were eligible to vote at FVAC's June 15, 2021 special meeting to seek appointment as lead plaintiff in the ATI Physical Therapy class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the ATI Physical Therapy class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the ATI Physical Therapy class action lawsuit. An investor's ability to share in any potential future recovery of the ATI Physical Therapy action lawsuit is not dependent upon serving as lead plaintiff. ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: With 200 lawyers in 9 offices nationwide, Robbins Geller Rudman & Dowd LLP is the largest U.S. law firm representing investors in securities class actions. Robbins Geller attorneys have obtained many of the largest shareholder recoveries in history, including the largest securities class action recovery ever -- $7.2 billion -- in In re Enron Corp. Sec. Litig. The 2020 ISS Securities Class Action Services Top 50 Report ranked Robbins Geller first for recovering $1.6 billion for investors last year, more than double the amount recovered by any other securities plaintiffs' firm. Please visit http://www.rgrdlaw.comfor more information. Attorney advertising. Past results do not guarantee future outcomes. Services may be performed by attorneys in any of our offices. Contact: Robbins Geller Rudman & Dowd LLP 655 W. Broadway, San Diego, CA 92101 J.C. Sanchez, 800-449-4900 jsanchez@rgrdlaw.com [GN] BANDWIDTH INC: Bid to Dismiss Mey Putative Class Suit Pending ------------------------------------------------------------- Bandwidth Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company's motion to dismiss the putative class action suit entitled, Diana Mey v. All Access Telecom, Inc., et al., is pending. On November 30, 2020, the company was named as a defendant in a Second Amended Class Action Complaint in a putative class action captioned Diana Mey v. All Access Telecom, Inc., et al. pending in the United States District Court, Northern District of West Virginia relating to the alleged failure to block unsolicited phone calls to the plaintiff and putative class members. The company filed a motion to dismiss the action on February 3, 2021. On April 23, 2021, that motion was denied. On May 21, 2021, the plaintiff filed a Third Amended Complaint. The company filed a motion to dismiss the Third Amended Complaint on June 4, 2021. On July 26, 2021, the company filed a motion seeking primary jurisdiction referral of a key issue to the the Federal Communications Commission. Bandwidth said, "We intend to vigorously defend these lawsuits and believe we have meritorious defenses to each. However, litigation is inherently uncertain, and any judgment or injunctive relief entered against us or any adverse settlement could negatively affect our business, results of operations and financial condition." Bandwidth Inc. is a leading global enterprise cloud communications company. The company's solutions include a broad range of software Application Programming Interfaces for voice, messaging and emergency services. The company is based in Raleigh, North Carolina. BAYER CORPORATION: Maiorino Suit Transferred to N.D. Illinois ------------------------------------------------------------- The case styled as Thomas Maiorino, Individually on Behalf of Himself and All Others Similarly Situated v. Bayer Corporation, Elanco Animal Health, Inc., Raina C. Borrelli, Daniel E. Gustafson, David A. Goodwin, Case No. 2:21-cv-07579, was transferred from the U.S. District Court for the District of New Jersey to the U.S. District Court for the Northern District of Illinois on Aug. 24, 2021. The District Court Clerk assigned Case No. 1:21-cv-04484 to the proceeding. The nature of suit is stated as Contract Product Liability. Bayer AG -- https://www.bayer.com/en/ -- is a German multinational pharmaceutical and life sciences company and one of the largest pharmaceutical companies in the world.[BN] The Plaintiff is represented by: Simon Bahne Paris, Esq. SALTZ, MONGELUZZI, BARRETT & BENDESKY, PC ONE LIBERTY PLACE 1650 MARKET STREET, 52ND FLOOR PHILADELPHIA, PA 19103 Phone: (215) 496-8282 Status: (215) 496-0999 Email: sparis@smbb.com - and - PATRICK HOWARD, ESQ. SALTZ MONGELUZZI BARRETT & BENDESKY 1650 MARKET ST., 52ND FL PHILADELPHIA, PA 19103 Phone: (215) 575-3895 Email: phoward@smbb.com The Defendants are represented by: Joseph H. Blum, Esq. SHOOK HARDY & BACON, L.L.P. Two Commerce Square 2001 Market Street, Suite 3000 PHILADELPHIA, PA 19103 Phone: (215) 575-3115 Status: (215) 278-2594 Email: jblum@shb.com - and - Thomas J. Sullivan MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Phone: (215) 963-5146 Email: tsullivan@morganlewis.com BELLRING BRANDS: Class Suit Against Premier Nutrition Ongoing ------------------------------------------------------------- Bellring Brands, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that Premier Nutrition Company, LLC, continues to defend the so-called Joint Juice Litigation. In March 2013, a complaint was filed on behalf of a putative, nationwide class of consumers against Premier Nutrition Company, LLC in the U.S. District Court for the Northern District of California seeking monetary damages and injunctive relief. The case asserted that some of Premier Nutrition's advertising claims regarding its Joint Juice line of glucosamine and chondroitin dietary supplements were false and misleading. In April 2016, the district court certified a California-only class of consumers in this lawsuit. In 2016 and 2017, the lead plaintiff's counsel in the California Federal Class Lawsuit filed ten additional class action complaints in the U.S. District Court for the Northern District of California on behalf of putative classes of consumers under the laws of Connecticut, Florida, Illinois, New Jersey, New Mexico, New York, Maryland, Massachusetts, Michigan and Pennsylvania. These additional complaints contain factual allegations similar to the California Federal Class Lawsuit, also seeking monetary damages and injunctive relief. The New Jersey case was voluntarily dismissed. In April 2018, the district court dismissed the California Federal Class Lawsuit with prejudice. This dismissal was upheld on appeal by the U.S. Court of Appeals for the Ninth Circuit and Plaintiff's petition for an en banc rehearing by the Ninth Circuit was denied. The other complaints remain pending in the U.S. District Court for the Northern District of California, and the court has certified individual state classes in each of those cases. In January 2019, the same lead counsel filed an additional class action complaint against Premier Nutrition in California Superior Court for the County of Alameda, alleging claims similar to the above actions and seeking monetary damages and injunctive relief on behalf of a putative class of California consumers, beginning after the California Federal Class Lawsuit class period. In September 2020, the same lead counsel filed another class action complaint against Premier Nutrition in California Superior Court for the County of Alameda, alleging identical claims and seeking restitution and injunctive relief on behalf of the same putative class of California consumers as the California Federal Class Lawsuit. The Company continues to vigorously defend these cases. The Company does not believe that the resolution of these cases will have a material adverse effect on its financial condition, results of operations or cash flows. Bellring Brands, Inc. manufactures food supplements. The Company produces nutritional items such as protein shakes, powders, and bars. Bellring Brands serves customers in the State of Missouri. The company is based in St. Louis, Missouri. BIG PICTURE: Martorello Appeals Class Cert. Ruling in Williams Suit ------------------------------------------------------------------- Defendant Matt Martorello filed an appeal from a court ruling entered in the lawsuit styled LULA WILLIAMS, et al., Plaintiffs v. BIG PICTURE LOANS, LLC, et al., Defendants, Case No. 3:17-cv-461-REP, in the United States District Court for the Eastern District of Virginia at Richmond. As reported in the Class Action Reporter on Aug. 2, 2021, the District Court issued a Memorandum Opinion granting the Plaintiffs' Motion for Class Certification in the lawsuit. 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 opposed 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. 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"). 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. Mr. Martorello now seeks a review of the Class Certification ruling entered by the District Court. The appellate case is captioned as Matt Martorello v. Lula Williams, Case No. 21-211, in the United States Court of Appeals for the Fourth Circuit, filed on August 4, 2021.[BN] Defendant-Petitioner MATT MARTORELLO is represented by: Bernard R. Given, II, Esq. William Nathaniel Grosswendt, Esq. LOEB & LOEB LLP 1010 Santa Monica Boulevard Los Angeles, CA 90067 Telephone: (310) 282-2235 - and - John David Taliaferro, Esq. LOEB & LOEB LLP 901 New York Avenue, NW Washington, DC 20001 Telephone: (202) 618-5015 Plaintiffs-Respondents LULA WILLIAMS, on behalf of themselves and all individuals similarly situated; GLORIA TURNAGE; GEORGE HENGLE; DOWIN COFFY; and MARCELLA P. SINGH, Administrator of the Estate of Felix M. Gillison, Jr., are represented by: Elizabeth Anne Adams, Esq. Jennifer Rust Murray, Esq. Beth Ellen Terrell, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street Seattle, WA 98103 Telephone: (206) 816-6603 - and - John G. Albanese, Esq. Eleanor Michelle Drake, Esq. BERGER & MONTAGUE PC 1229 Tyler Street, NE Minneapolis, MN 55413 Telephone: (612) 594-5997 - and - Amy Leigh Austin, Esq. CONSUMER LITIGATION ASSOCIATES 626 East Broad Street Richmond, VA 23219 Telephone: (804) 905-9900 - and - Leonard Anthony Bennett, Esq. Craig Carley Marchiando, Esq. CONSUMER LITIGATION ASSOCIATES, P.C. 763 J. Clyde Morris Boulevard Newport News, VA 23601 Telephone: (757) 930-3660 - and - Michael Allen Caddell, Esq. CADDELL & CHAPMAN 628 East 9th Street Houston, TX 77007 Telephone: (713) 751-0400 - and - Andrew Joseph Guzzo, Esq. Kristi Cahoon Kelly, Esq. Casey Shannon Nash, Esq. KELLY GUZZO PLC 3925 Chain Bridge Road Fairfax, VA 22030 Telephone: (703) 424-7576 - and - James Wilson Speer, Esq. VIRGINIA POVERTY LAW CENTER 919 East Main Street Richmond, VA 23219 Telephone: (804) 782-9430 - and - Matthew W. H. Wessler, Esq. GUPTA WESSLER PLLC 2001 K Street, NW Washington, DC 20006 Telephone: (202) 888-1741 - and - David Neal Anthony, Esq. Timothy James St. George, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP P. O. Box 1122 Richmond, VA 23218-1122 Telephone: (804) 697-5410 - and - Justin Alexander Gray, Esq. ROSETTE, LLP 44 Grandville Avenue, SW Grand Rapids, MI 49503 Telephone: (616) 655-1601 BISHOP OF CHARLESTON: Court Refuses to Protect LS3P in Tuition Suit ------------------------------------------------------------------- In the case, Tuition Payer 100, Viewed Student Female 200, Viewed Student Male 300, on behalf of themselves and all others similarly situated, Plaintiffs v. The Bishop of Charleston, a Corporation Sole, Bishop England High School, Tortfeasors 1-10, The Bishop of the Diocese of Charleston, in his official capacity, and Robert Guglielmone, individually, Defendants, Civil Action No. 2:21-613-RMG (D.S.C.), Judge Richard Mark Gergel of the U.S. District Court for the District of South Carolina, Charleston Division, denies LS3P Associated Ltd.'s motion for a protective order to terminate or limit its deposition. The Plaintiffs bring the putative class action alleging that, for roughly two decades, students at Bishop England High School ("BEHS") were made to disrobe in locker rooms which contained "large glass windows" whereby BEHS employees, agents, and/or others may have viewed students. On June 16, 2021, the Plaintiff served non-party LS3P with a Notice of 30(b)(6) Deposition. The designated subject matter of inquiry was: "The planning, design, and building of BEHS to include information about any meeting minutes, contracts or payments from the project." On June 18, 2021, the counsel for LS3P wrote the Plaintiffs' counsel requesting that the Plaintiffs "be more specific in the designation of topics" the Plaintiffs wished to explore. On June 22, 2021, the Plaintiffs' counsel responded that while the Plaintiffs did not intend to "unduly burden anyone in the matter," "surely LS3P can recognize the importance of us learning about the conception and effectuation of construction of BEHS. Concomitantly, they need to know the financial decision making arrangements between the architectural firm [namely LS3P] and any other party concerning the project." On July 2, 2021, LS3P wrote the Plaintiffs' counsel that LS3P would produce a witness "who will be prepared to testify to meeting minutes as they relate to the planning, design, and building of BEHS, contracts as they relate to the planning, design, and building of BEHS, and payment as they relate to the planning design and building of BEHS. Any topics beyond those three listed will be considered outside the scope of the topics listed for this 30(b)(6) deposition." On July 6, 2021, Plaintiffs' counsel responded to LS3P. On July 7, 2021, LS3P's counsel responded that the Plaintiffs' notice was still overbroad, but that LS3P "believed the solution to any disagreement can be found in the second paragraph of your prior email." On July 7, 2021, the Plaintiffs' counsel responded that while he found LS3P's email "confusing," he wasn't "sure that we're not both saying the same thing, but somehow failing to hear each other." The Plaintiffs concluded that "we'll just have to go forward and do the best that we can tomorrow morning." On July 8, 2021, LS3P's 30(b)(6) representative, Roger A. Attanasio, was deposed. Under two hours into the deposition, the Plaintiffs' counsel asked Attanasio if he thought it "would have been a good idea" to place "signs warning children that in the BEHS locker rooms you may be viewed nude." Attanasio answered, "Beyond the scope of this deposition." The Plaintiff's counsel responded that he was "not able to go forward any further" given the answer. On July 15, 2021, LS3P moved for a protective order to terminate or limit its Rule 30(b)(6) deposition. The Plaintiffs oppose. LS3P filed a reply. LS3P's motion is fully briefed and ripe for disposition. Discussion LS3P asks the Court to either (a) order that the deposition of LS3P be terminated or, in the alternative, (b) order that the deposition of LS3P be limited in scope and manner. Implicit in LS3P's motion is a request that the Court finds that the Plaintiffs' Rule 30(b)(6) notice was not defined with reasonable particularity. Judge Gergel finds LS3P and its counsel failed to comply with the rules governing the conduct of oral depositions. He therefore directs LS3P to make Attanasio available to the Plaintiffs to complete in its entirety the Rule 30(b)(6) deposition of LS3P. The Judge grants the Plaintiffs' request that they be permitted to "pose questions that were already posed and/or attempted to be posed in the first deposition to which the Plaintiffs did not have any opportunity to explore and/or develop." By Aug. 30, 2021, the parties will meet and confer, schedule, and complete this deposition. The Judge orders LS3P's counsel to comply with the rules governing conduct of oral depositions including the local rules of the Court. Order For the reasons he stated, Judge Gergel denies LS3P's motion for a protective order to terminate or limit its deposition. He further orders Plaintiffs and LS3P to, by Aug. 30, 2021, meet and confer, schedule, reconvene and complete the Rule 30(b)(6) deposition of LS3P in accordance with his Order. A full-text copy of the Court's Aug. 11, 2021 Amended Order & Opinion is available at https://tinyurl.com/r5daw386 from Leagle.com. BLACKBAUD INC: Judge Refuses to Dismiss CCPA Claims in Class Action ------------------------------------------------------------------- Linn F. Freedman, Esq., of Robinson & Cole LLP, in an article for The National Law Review, reports that Blackbaud, which suffered a data breach of its customers' data in a ransomware attack in 2020, in which it admitted paying the ransom in a double extortion attack, is facing multiple class action cases following the attack. The cases have been consolidated in multi-district litigation and now comprise 29 cases. The federal judge overseeing the cases has refused to dismiss all of the claims that the plaintiffs alleged against Blackbaud, and ruled that Blackbaud must face claims of violation of the California Consumer Privacy Act (CCPA), deceptive and unfair trade practice allegations made by Florida and New York plaintiffs, and a separate claim by a California plaintiff alleging the compromise of medical information. The judge declared that the plaintiffs had sufficiently alleged that Blackbaud was a "business" as that term is defined in CCPA partly because Blackbaud was a registered data broker in the state of California. The judge did dismiss several state statutory claims that had been made by the plaintiffs. [GN] BLOOM ENERGY: Bid to Dismiss Roberts Class Suit Remains Pending --------------------------------------------------------------- Bloom Energy Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company's motion to dismiss the second amended complaint in the class action suit initiated by Elissa Roberts remains pending. In May 2019, Elissa Roberts filed a class action complaint in the federal district court for the Northern District of California against the company, certain members of its senior management team, and certain of its directors alleging violations under Section 11 and 15 of the Securities Act for alleged misleading statements or omissions in the company's Registration Statement on Form S-1 filed with the SEC in connection with the initial public offering (IPO). On September 3, 2019, James Hunt was appointed as lead plaintiff and Levi & Korsinsky was appointed as plaintiff's counsel. On November 4, 2019, plaintiffs filed an amended complaint adding the underwriters in the IPO, claims under Sections 10b and 20a of the Securities Exchange Act of 1934, as amended, and extending the class period to September 16, 2019. On April 21, 2020, plaintiffs filed a second amended complaint adding claims under the Securities Act. The second amended complaint also adds allegations pertaining to the restatement and, as to claims under the Exchange Act, extends the class period through February 12, 2020. On July 1, 2020, the company filed a motion to dismiss the second amended complaint and are waiting for a ruling on that motion. Bloom Energy said, "We believe the complaint to be without merit and we intend to defend this action vigorously. We are unable to predict the outcome of this litigation at this time and accordingly are not able to estimate any range of reasonably possible losses." No further updates were provided in the Company's SEC report. Bloom Energy Corporation designs, manufactures, and sells solid-oxide fuel cell systems for on-site power generation. The company was formerly known as Ion America Corp. and changed its name to Bloom Energy Corporation in September 2006. Bloom Energy Corporation was founded in 2001 and is headquartered in San Jose, California. BLOOM ENERGY: Consolidated Lincolnshire Police Fund Suit Stayed --------------------------------------------------------------- Bloom Energy Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the consolidated Lincolnshire Police Pension Fund class action suit remains stayed. In March 2019, the Lincolnshire Police Pension Fund filed a class action complaint in the Superior Court of the State of California, County of Santa Clara, against the company, certain members of its senior management, certain of its directors and the underwriters in its July 25, 2018 initial public offering (IPO) alleging violations under Sections 11 and 15 of the Securities Act of 1933, as amended, for alleged misleading statements or omissions in our Registration Statement on Form S-1 filed with the SEC in connection with the IPO. Two related class action cases were subsequently filed in the Santa Clara County Superior Court against the same defendants containing the same allegations; Rodriquez vs Bloom Energy et al. was filed on April 22, 2019 and Evans vs Bloom Energy et al. was filed on May 7, 2019. These cases have been consolidated. Plaintiffs' consolidated amended complaint was filed with the court on September 12, 2019. On October 4, 2019, defendants moved to stay the lawsuit pending the federal district court action. On December 7, 2019, the Superior Court issued an order staying the action through resolution of the parallel federal litigation mentioned below. Bloom Energy said, "We believe the complaint to be without merit and we intend to defend this action vigorously. We are unable to estimate any range of reasonably possible losses." No further updates were provided in the Company's SEC report. Bloom Energy Corporation designs, manufactures, and sells solid-oxide fuel cell systems for on-site power generation. The company was formerly known as Ion America Corp. and changed its name to Bloom Energy Corporation in September 2006. Bloom Energy Corporation was founded in 2001 and is headquartered in San Jose, California. BLOOM ENERGY: Sanchez Dismisses Individual and Class Action Claims ------------------------------------------------------------------ Bloom Energy Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that Francisco Sanchez dismissed the individual and class action claims without prejudice, leaving one cause of action for enforcement of the Private Attorney Generals Act. In March 2020, Francisco Sanchez filed a class action complaint in Santa Clara County Superior Court against the company alleging certain wage and hour violations under the California Labor Code and Industrial Welfare Commission Wage Orders and that the company engaged in unfair business practices under the California Business and Professions Code, and in July 2020 he amended his complaint to add claims under the California Labor Code Private Attorneys General Act. On November 30, 2020, the company filed a motion to compel arbitration and the motion was to be heard on March 5, 2021. On February 24, 2021, Mr. Sanchez dismissed the individual and class action claims without prejudice, leaving one cause of action for enforcement of the Private Attorney Generals Act. In April 2021, an amended complaint reflecting these changes was filed with the Santa Clara Superior Court. The parties have agreed to attend a mediation on January 10, 2022. Given that the case is still in its early stages, the company is unable to estimate any range of reasonably possible losses. No further updates were provided in the Company's SEC report. Bloom Energy Corporation designs, manufactures, and sells solid-oxide fuel cell systems for on-site power generation. The company was formerly known as Ion America Corp. and changed its name to Bloom Energy Corporation in September 2006. Bloom Energy Corporation was founded in 2001 and is headquartered in San Jose, California. BLUE RIDGE: Assumes Liability in VCB Class Action ------------------------------------------------- Blue Ridge Bankshares, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company has assumed liability of Virginia Community Bankshares, Inc. (VCB) in relation to the class action suit filed against the latter. On August 12, 2019, a former employee of VCB and participant in its Employee Stock Ownership Plan (the "VCB ESOP") filed a class action complaint against VCB, Virginia Community Bank, and certain individuals associated with the VCB ESOP in the U.S. District Court for the Western District of Virginia, Charlottesville Division. The complaint alleges, among other things, that the defendants breached their fiduciary duties to VCB ESOP participants in violation of the Employee Retirement Income Security Act of 1974, as amended. The complaint alleges that the VCB ESOP incurred damages "that approach or exceed $12 million." The Company automatically assumed any liability of VCB in connection with this litigation as a result of its 2019 acquisition of VCB. The outcome of this litigation is uncertain, and the plaintiff and other individuals may file additional lawsuits related to the VCB ESOP. The Company believes the claims are without merit and no loss has been accrued for this lawsuit. No further updates were provided in the Company's SEC report. Blue Ridge Bankshares, Inc. is a bank holding company headquartered in Charlottesville, Virginia. It provides commercial and consumer banking and financial services through its wholly-owned bank subsidiary, Blue Ridge Bank, National Association, and its non-bank financial services affiliates. The Company was incorporated under the laws of the Commonwealth of Virginia in July 1988 in connection with the holding company reorganization of the Bank, which was completed in July 1988. BLUE RIDGE: Unit Faces Purported Class Suit by Customer ------------------------------------------------------- Blue Ridge Bankshares, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that Blue Ridge Bank, National Association is facing a purported class action suit initiated by its customer. On June 24, 2021, a customer of Blue Ridge Bank, National Association filed a purported class action complaint against the Bank in the U.S. District Court for the Western District of Virginia, Harrisonburg Division. The complaint alleges, among other things, that the Bank breached its contract with checking account customers by charging improper overdraft fees, and seeks monetary damages, restitution and declaratory relief arising from the alleged assessment and collection of such fees. The complaint also alleges that the aggregate claims of the putative class members exceed $5 million. Blue Ridge said, "The outcome of this litigation is uncertain, and the customer-plaintiff and other customers may file additional lawsuits related to their accounts with the Bank. The Company believes the claims are without merit and no loss has been accrued for this lawsuit." Blue Ridge Bankshares, Inc. is a bank holding company headquartered in Charlottesville, Virginia. It provides commercial and consumer banking and financial services through its wholly-owned bank subsidiary, Blue Ridge Bank, National Association, and its non-bank financial services affiliates. The Company was incorporated under the laws of the Commonwealth of Virginia in July 1988 in connection with the holding company reorganization of the Bank, which was completed in July 1988. BOFI HOLDING: Court OKs Bid for Class Status in Securities Suit --------------------------------------------------------------- In the class action lawsuit RE: BofI HOLDING, INC. SECURITIES LITIGATION, Case No. 3:15-cv-02324-GPC-KSC (S.D. Cal.), the Hon. Judge Gonzalo P. Curiel entered an order: 1. granting the Plaintiff's motion for class certification; 2. appointing Lead Plaintiff Houston Municipal Employees Pension System as class representative; and 3. appointing Lieff Cabraser Heimann & Bernstein, LLP as class counsel. This case is a consolidated putative securities fraud class action brought by purchasers of BofI's stock for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. On February 1, 2016, the Court appointed Houston Municipal 5 Employees Pension System as Lead Plaintiff. The operative pleading, in this case, is the Third Amended Complaint (TAC). On March 21, 2018, the Court granted Defendants' motion to dismiss the TAC with prejudice. The Court concluded that the TAC failed to identify a corrective disclosure of the alleged misrepresentations with the particularity required by Federal Rule of Civil Procedure. A copy of the Court's order dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/38ddwKb at no extra charge.[CC] BOSTON SCIENTIFIC: Bid to Nix Lotus Edge Related Suit Pending ------------------------------------------------------------- Boston Scientific Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss the consolidated class action suit related to the recall and retirement of the LOTUS Edge(TM) Aortic Valve System (LOTUS System), is pending. On December 4, 2020 Enrique Jevons, individually and on behalf of all others similarly situated, filed a class action complaint against the Company, Michael F. Mahoney and Daniel J. Brennan, stemming from the recall and retirement of the LOTUS Edge(TM) Aortic Valve System (LOTUS System) in United States District Court for the Eastern District of New York. On December 14, 2020, the parties agreed to transfer the case to the United States District Court for the District of Massachusetts. On December 16, 2020, Mariano Errichiello, individually and on behalf of all other similarly situated, filed a second, materially similar class action complaint against the Company, Michael F. Mahoney, Joseph M. Fitzgerald, and Daniel J. Brennan in the United States District Court for the District of Massachusetts. Subsequently, on March 30, 2021, the Court consolidated the two actions, and appointed Mariano Errichiello as the lead plaintiff. Under the terms of the Court-approved Scheduling Order, Counsel for Mr. Errichiello was required to file an Amended Complaint on or before June 4, 2021, which it did, and, in response the Company brought a Motion to Dismiss the Amended Complaint by July 19, 2021. Boston Scientific Corporation, doing business as Boston Scientific, is a manufacturer of medical devices used in interventional medical specialties, including interventional radiology. BRAEMAR HOTELS: Managers' Initiated Class Action Underway --------------------------------------------------------- Braemar Hotels & Resorts Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a class action suit initiated by the company's managers. On December 20, 2016, a class action lawsuit was filed against one of the Company's hotel management companies in the Superior Court of the State of California in and for the County of Contra Costa alleging violations of certain California employment laws, which class action affects two hotels owned by subsidiaries of the Company. The court has entered an order granting class certification with respect to: (1) a statewide class of non-exempt employees of the company's manager who were allegedly deprived of rest breaks as a result of the company's manager's previous written policy requiring its employees to stay on premises during rest breaks; and (2) a derivative class of non-exempt former employees of the company's manager who were not paid for allegedly missed breaks upon separation from employment. Notices to potential class members were sent out on February 2, 2021. Potential class members had until April 4, 2021 to opt out of the class, however, the total number of employees in the class has not been definitively determined and is the subject of continuing discovery. Braemar said, "While we believe it is reasonably possible that we may incur a loss associated with this litigation, because there remains uncertainty under California law with respect to a significant legal issue, discovery relating to class members continues, and the trial judge retains discretion to award lower penalties than set forth in the applicable California employment laws, we do not believe any potential loss to the Company is reasonably estimable at this time. As of June 30, 2021, no amounts have been accrued." Braemar Hotels & Resorts Inc. operates as a real estate investment company. The Company acquires and invests in luxury hotels and resorts. Braemar Hotels & Resorts serves customers in the United States. The company is based in Dallas, Texas. BRIGHTHOUSE FINANCIAL: Bid to Dismiss Lawrence Suit Pending ----------------------------------------------------------- Brighthouse Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss the case Lawrence Martin v. Brighthouse Life Insurance Company and Brighthouse Life Insurance Company of NY (U.S. District Court, Southern District of New York, filed April 6, 2021), is pending. Plaintiff has filed a purported class action lawsuit against Brighthouse Life Insurance Company and Brighthouse Life Insurance Company of NY. Plaintiff is the owner of a universal life insurance policy issued by Travelers Insurance Company, a predecessor to Brighthouse Life Insurance Company. Plaintiff seeks to certify a class of similarly situated owners of universal life insurance policies issued or administered by defendants and alleges that cost of insurance charges should have decreased over time due to improving mortality but did not. Plaintiff alleges, among other things, causes of action for breach of contract, breach of the covenant of good faith and fair dealing, and unjust enrichment. Plaintiff seeks to recover compensatory damages, attorney's fees, interest, and equitable relief including a constructive trust. Brighthouse Life Insurance Company and Brighthouse Life Insurance Company of NY filed a motion to dismiss in June 2021. The Company intends to vigorously defend this matter. Brighthouse Financial, Inc. one of the largest providers of annuity and life insurance products in the United States through multiple independent distribution channels and marketing arrangements with a diverse network of distribution partners. The company is based in Charlotte, North Carolina. BRIGHTHOUSE FINANCIAL: Newton Putative Class Suit Ongoing --------------------------------------------------------- Brighthouse Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a cost of insurance class action suit entitled, Richard A. Newton v. Brighthouse Life Insurance Company (U.S. District Court, Northern District of Georgia, Atlanta Division, filed May 8, 2020). Plaintiff has filed a purported class action lawsuit against Brighthouse Life Insurance Company. Plaintiff was the owner of a universal life insurance policy issued by Travelers Insurance Company, a predecessor to Brighthouse Life Insurance Company. Plaintiff seeks to certify a class of all persons who own or owned life insurance policies issued where the terms of the life insurance policy provide or provided, among other things, a guarantee that the cost of insurance rates would not be increased by more than a specified percentage in any contract year. Plaintiff alleges, among other things, causes of action for breach of contract, fraud, suppression and concealment, and violation of the Georgia Racketeer Influenced and Corrupt Organizations Act. Plaintiff seeks to recover damages, including punitive damages, interest and treble damages, attorneys' fees, and injunctive and declaratory relief. Brighthouse Life Insurance Company filed a motion to dismiss in June 2020, which was granted in part and denied in part. Plaintiff was granted leave to amend the complaint. The Company intends to vigorously defend this matter. Brighthouse Financial, Inc., one of the largest providers of annuity and life insurance products in the United States, through multiple independent distribution channels and marketing arrangements with a diverse network of distribution partners. The company is based in Charlotte, North Carolina. C.H. ROBINSON: Court Amends Scheduling Order in Moore Family Suit ----------------------------------------------------------------- In the class action lawsuit captioned as DAVID MOORE d/b/a MOORE FAMILY FARMS, et al., v. C.H. ROBINSON WORLDWIDE, INC. et al., Case No. 0:20-cv-00252-PJS-HB (D. Minn.), the Hon. Judge Richard B. Solum entered an amendment of scheduling order: 1. JMR Plaintiffs' Motion for Class Certification: -- Plaintiffs' motion to be made on or before October 1, 2021 -- Defendants' response shall be made on or before November 19, 2021; -- Plaintiffs' reply on or before December 10, 2021; 2. Plaintiffs' Expert Disclosures: December 21, 2021; 3. Defendants' Expert Rebuttal Disclosures: January 21, 2022; 4. Fact Discovery Completed: January 28, 2022; 5. Rule 56 Motions: Made and fully briefed before February 14, 2022 (As required by the August 22, 2020 Scheduling Order, if any ruling on a motion for class certification has not reached finality, any Rule 56 motion in either of the above cases may be made only with the leave of the undersigned or the Court; 6. Trial Readiness: April 15, 2022. A copy of the Court's order dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/2Wqj3u8 at no extra charge.[CC] CALIFORNIA: Oral Argument in Pivotal Suit Scheduled for November 9 ------------------------------------------------------------------ Alison Frankel, writing for Reuters, reports that it's hardly a secret that there are securities class action skeptics among the justices of the U.S. Supreme Court. Last term, after all, Justices Neil Gorsuch, Clarence Thomas and Samuel Alito said in a dissent by Gorsuch in Goldman Sachs v. Arkansas Teacher Retirement System that defendants ought to be able to defeat class certification simply by producing evidence -- not necessarily persuasive evidence -- that their alleged misstatements didn't impact the price of their shares. Shareholder litigation would have been gutted if they'd been in the majority. In the Supreme Court's upcoming term, the justices will hear yet another securities class action case -- but I don't think shareholder lawyers have as much to worry about as they did in the Goldman case. Pivotal Software, Inc v. Superior Court of California, which is scheduled for oral argument on Nov. 9, presents the question of whether the stay on early-stage discovery imposed by the Private Securities Litigation Reform Act applies to Securities Act class actions in state court as well as federal court. Based on the latest data from Cornerstone Research, it looks like the Supreme Court is taking up the question amid a drastic drop in the very cases in which the answer matters. A bit of necessary context: As you probably recall, the Supreme Court ruled in 2018's Cyan v. Beaver County Employees Retirement Fund that the Securities Act entitles shareholders to sue in either state or federal court. State courts, of course, are generally more lenient than federal court in their pleading standards for fraud. In addition, as law professor Michael Klausner and other Stanford Law School researchers reported in a 2020 study, shareholders might benefit from a disparity in discovery rules in state and federal court. In federal court, the PSLRA bars shareholders from obtaining discovery from defendants until they have survived a dismissal motion. But state courts frequently allow shareholders to assert discovery demands before judges have ruled on dismissal motions. So, according to the Stanford paper, state-court plaintiffs might be able to leverage the cost of complying with their discovery demands to pressure defendants to settle. Plaintiffs' lawyers -- no dummies -- flocked to state court after the Supreme Court's Cyan decision in March 2018. That year, shareholders filed 35 Securities Act class actions in state court, according to Cornerstone. In 2019, the first full year post-Cyan, there were 52 Securities Act class actions filed in state court. But last year the number fell precipitously, to only 23 state-court class action filings. And in the first half of 2021, according to Cornerstone's mid-year report last month, only five Securities Act class actions were filed in state court. Cornerstone theorized that the drastic drop reflects the Delaware Supreme Court's 2020 ruling in Salzberg v. Sciabacucchi that companies can adopt forum selection provisions requiring shareholders to bring Securities Act claims in federal court. Courts in other states have to enforce those forum selection provisions, but Cornerstone said its data suggest that Delaware's Sciabacucchi ruling has significantly depressed state-court Securities Act filings. If state-court class actions were a problem, in other words, companies may have already solved it -- as least prospectively -- through federal-court forum selection provisions. To be sure, Pivotal's lawyers at Morrison & Foerster offered quite a different view in the merits brief they filed on Aug. 16. Pivotal, a cloud computing company that is now part of VMWare, described facing parallel shareholder class actions in San Francisco Superior Court and in federal court in San Francisco. The state case was stayed while Pivotal sought - and won - dismissal of the federal-court class action. But when the federal case was tossed, Pivotal said, the state-court plaintiffs asserted sweeping discovery requests from Pivotal and its underwriters. "Those requests were as broad and burdensome as they come," Pivotal said. Pivotal's brief said underwriters have been swamped with state court securities suits since Cyan. "In the past three years alone, the underwriter petitioners cumulatively have been named as defendants in individual and consolidated actions under the Securities Act in state court at least 287 times," the brief said, "or, counting the number of complaints filed within each individual and consolidated action, cumulatively at least 640 times." I'm not entirely sure how to reconcile Pivotal's number with the Cornerstone data. Pivotal's lawyers at MoFo declined to comment. I didn't get a response to my email query to counsel for the shareholders suing Pivotal, Thomas Goldstein of Goldstein & Russell, Steve Berman of Hagens Berman Sobol Shapiro and Thomas Laughlin of Scott + Scott. It could be simply that a single class action may name more than a dozen underwriter defendants, as the Pivotal class action did. It's possible that the 100 or so state-court Securities Act class actions filed after Cyan name hundreds of defendants amongst them. On the other hand, Pivotal said that the 287 cumulative claims it cited include claims in individual suits. Those, of course, would not be affected by a Supreme Court ruling on the application of the PSLRA discovery stay to state-court class actions. I should point out that I've been completely wrong before about the Pivotal case. I didn't think the Supreme Court would grant review, considering that shareholders in the California state-court class action ditched their early discovery demands after Pivotal filed its petition for certiorari. Pivotal's new brief called that abandonment "a transparent attempt to moot the controversy." Obviously, the attempt failed -- and it's worth wondering why shareholder lawyers were so eager to avoid Supreme Court consideration of the issue. I expect that Pivotal will attract amicus backing from the U.S. Chamber and the Securities Industry and Financial Markets Association, which previously filed a brief backing Pivotal's petition for Supreme Court review. It will be interesting to see if those groups have more to add to the discussion of the case's potential impact. (This story has been updated to note that Pivotal's counsel declined to comment.) [GN] CANADIAN PACIFIC: Faces Class Action Over June 30 Lytton Fire ------------------------------------------------------------- Kamloops This Week reports that Canadian Pacific and Canadian National are the targets of a proposed class-action lawsuit in connection with the June 30 fire that destroyed much of the Village of Lytton. The suit alleges a train on tracks with ownership by both railway companies caused or contributed to the fire. The statement of claim, filed in B.C. Supreme Court, alleges the fire was ignited by heat or sparks from a CP freight train operated by CN employees on tracks owned by CN. The statement of claim notes the fire started at approximately 4:15 p.m. on June 30, at the spot in Lytton where the CN Bridge crosses the Fraser River. The statement of claim notes winds of up to 70 km/h carried the flames into Lytton, razing most structures in the village in less than two hours. Cause of the fire is still be probed by a number of agencies, including the RCMP, the Transportation Safety Board and the BC Wildfire Service. The statement of claim argues that record high temperatures -- Lytton set an all-time Canadian high mark of 49. 6 C the day before the fire -- should have been warning enough for the railways to know it was unsafe to operate trains and that both CN and CP failed to protect the village. The class-action suit -- which is seeking damages for losses connected to property, housing, business income and pain and suffering -- still requires court approval to proceed. [GN] CANOPY GROWTH: Disclosure Related Putative Class Suit Underway -------------------------------------------------------------- Canopy Growth Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a purported class action suit related to the company's receivables, business, operations and prospects relating to, among other things, the demand for its softgel and oil products. In November 2019, the Corporation and certain of its current and former officers were named as defendants in three purported class action claims filed in the U.S. District Court for the District of New Jersey; two of these complaints have since been dismissed. The plaintiffs allege that the defendants made false and/or misleading statements and/or failed to disclose material adverse facts, regarding Canopy Growth's receivables, business, operations and prospects relating to, among other things, the demand for its softgel and oil products. In addition, as previously disclosed, in November 2020, the defendants moved to dismiss the complaint and on May 6, 2021, U.S. District Court Judge McNulty granted the defendant's motion to dismiss, without prejudice to the plaintiffs filing a third amended complaint with the Court within 30 days. On June 14, 2021, the plaintiffs filed their third amended complaint and on June 23, 2021, the Court granted the Corporation until August 16, 2021 to either enter an answer to the amended complaint or move to dismiss the complaint. The Corporation will again move to dismiss the complaint. Canopy Growth Corporation is a leading cannabis company with operations in countries throughout the world. The company produces, distributes and sells a diverse range of cannabis and hemp-based products for both recreational and medical purposes under a portfolio of distinct brands in Canada pursuant to the Cannabis Act, SC 2018, c 16, and globally pursuant to applicable international and Canadian legislation, regulations and permits. CAPITOL WATERTOWN: Bruske FLSA Conditional Status Bid Partly OK'd ----------------------------------------------------------------- In the class action lawsuit captioned as RYEA BRUSKE & TAMSYN BRUSKE, on behalf of themselves and all others similarly situated, v. CAPITOL WATERTOWN SPRECHERS, LLC; CAPITOL GENEVA, LLC; CAPITOL DELTON, LLC; CAPITOL GLENDALE, LLC; CAPITOL HOSPITALITY, LLC; KEVIN LEDERER; & SUE GETGEN, Case No. 3:19-cv-00851-wmc (W.D. Wisc.), the Hon. Judge William M. Conley entered an order: 1. granting in part and denying in part the Plaintiffs' motion for conditional certification of an Fair Labor Standards Act (FLSA) class as follows: a. The court certifies the following collective action: "All tipped employees employed at Sprechers Restaurant & Pub locations at Watertown, Wisconsin Dells, Lake Geneva, Glendale, and Madison, Wisconsin during the time period on or after August 23, 2018;" b. On or before September 2, 2021, defendants shall produce to plaintiffs an electronic list of names and addresses of all employees who fall within the scope of the collective action; and c. On or before September 7, 2021, plaintiffs' counsel is directed to mail the notices to the collective action members. Those members will have 60 days from the date of mailing to opt-in to the collective actions; 2. granting the Plaintiffs' motion for leave to file a late brief in opposition to defendants' partial motion for summary judgment; 3. granting the Defendants' motion for partial summary judgment; 4. denying the Plaintiffs' motion to strike; and 5. denying the Plaintiffs' motion to certify a Rule 23 class. In this collective and class action, the plaintiffs Ryea and Tamsyn Bruske allege that defendants improperly claimed a "tip credit" against their wages, and in doing so, failed to pay the full wages owed to them under federal and state law. Specifically, according to plaintiffs, thedefendants' offset was improper under the FLSA. A copy of the Court's order dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3sR99hA at no extra charge.[CC] CHARLES SCHWAB: Bid for Class Cert. in Crago Routing Suit Pending ----------------------------------------------------------------- The Charles Schwab Corporation (CSC) said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion for class certification in the securities class action suit related to Crago Order Routing, is pending. On July 13, 2016, a securities class action lawsuit was filed in the U.S. District Court for the Northern District of California on behalf of a putative class of customers executing equity orders through Charles Schwab & Co., Inc. (CS&Co). The lawsuit names CS&Co and CSC as defendants and alleges that an agreement under which CS&Co routed orders to UBS Securities LLC between July 13, 2011 and December 31, 2014 violated CS&Co's duty to seek best execution. Plaintiffs seek unspecified damages, interest, injunctive and equitable relief, and attorneys' fees and costs. After a first amended complaint was dismissed with leave to amend, plaintiffs filed a second amended complaint on August 14, 2017. Defendants again moved to dismiss, and in a decision issued December 5, 2017, the court denied the motion. Defendants have answered the complaint to deny all allegations, and are vigorously contesting the lawsuit. Plaintiffs filed a motion for class certification on April 30, 2021, which defendants are opposing. The Charles Schwab Corporation (CSC) is a savings and loan holding company. Incorporated in 1986, CSC engages, through its subsidiaries, in wealth management, securities brokerage, banking, asset management, custody, and financial advisory services. The company is based in Westlake, Texas. CODEX BEAUTY: Calcano Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Codex Beauty Corporation. The case is styled as Evelina Calcano, on behalf of herself and all other persons similarly situated v. Codex Beauty Corporation, Case No. 1:21-cv-07147 (S.D.N.Y., Aug. 24, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Codex Beauty Labs -- https://codexbeauty.com/ -- is a bioscience led beauty company that is setting a new standard in organic luxury skincare.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal COLUMBIA PUBLIC SCHOOLS: Faces Class Suit Over Mask Mandates ------------------------------------------------------------ Jordan Williams, writing for The Hill, reports that Missouri Attorney General Eric Schmitt (R) filed a class action lawsuit on Aug. 24 against school districts enforcing mask mandates against state law. The complaint, filed in a Missouri state court, argues that such mandates are "not supported by the science and are an arbitrary and capricious measure." He is asking the court to declare the mask mandates "unlawful as to school children." "Despite the science, some public school districts require all students to wear a mask on school buses, school property, and while engaging in school activities. These mask mandates are arbitrary, capricious, unreasonable, and unlawful, and such measures are unsupported by data or science," the complaint states. The complaint specifically names Columbia Public Schools, the district's board of education and its members as defendants. The school district began requiring students and staff to wear masks indoors Aug. 16. The suit also lists as a class "public school districts and their boards of education," as well as the "superintendents of the public school districts." Michelle Baumstark, chief communications officer for Columbia Public Schools, told The Hill in a statement that the district is "extremely disappointed to learn that the Missouri Attorney General has chosen to pursue litigation against the school district for providing safety measures for its scholars, teachers, and staff members." "The decision to file suit against a public school district after a local decision is made in the interest of safety and keeping students in school will waste taxpayer dollars and resources, which are better spent investing in our students. Columbia Public Schools intends to aggressively defend its decision to keep its community and its scholars safe," Baumstark said. Missouri doesn't ban school districts from imposing mask mandates, unlike other GOP-led states such as Florida and Arizona. However, guidance released earlier this month states that decisions on mask mandate should be kept at the local level, according to The News Tribune. In June, Missouri Gov. Mike Parson (R) signed legislation that prohibits officials from implementing public health orders that place restrictions on the opening of public and private places -- or leads to them being partially or fully closed -- longer than 30 days during a public health emergency. Schmitt's complaint alleges that masks are a hinderance to development, especially in young children with special needs. He further argues that science shows children are at "significantly lower risk" of contracting serious illness due to COVID-19. "There is no evidence that Defendants considered the underlying data, science, and evidence that fail to justify issuing a mask mandate for schoolchildren at this time," the suit says. Schmitt, who is running for the Senate, has also sued St. Louis County and city, Kansas City and Jackson County over their mask mandates. A Missouri circuit judge ruled that St. Louis County could not impose its mask mandates. [GN] COLUMBIA UNIVERSITY: Court Narrows Claims in Brittain Class Suit ---------------------------------------------------------------- In the case, ERIC S. BRITTAIN, KAELA MEI-CHEE CHAMBERS, JULIAN CALLAGHAN, JOANNA CHRISTINA CORTEZ, ANTHON SERTEL DEAN, ANTONIO RATTES DE FARIAS, CAITLIN FERRELL, KATHRYN MILLER, GRACE A. PHILIPS, BRADLEY M. PITTS, AVA RAVICH, ANA I. DOW SILVA, JACLYN E. TODD, DONOVAN TOLLEDO, and RICARDO J. VARONA, on behalf of themselves and all others similarly situated, Plaintiffs v. TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, Defendant, Case No. 20-cv-9194 (PKC) (S.D.N.Y.), Judge P. Kevin Castel of the U.S. District Court for the Southern District of New York granted in part and denied in part the Defendant's motion to dismiss the Plaintiff's Second Amended Complaint. In the action, students enrolled in Columbia University's Graduate School of the Arts seek tuition refunds for course work that was not conducted in person because of the COVID-19 pandemic. The 15 students who are Plaintiffs in the putative class action were pursuing a master's degree in fine arts ("MFA"), with specializations in either visual art, sound art, or film. Due to the pandemic, Defendant Trustees of Columbia University in the City of New York suspended much of the studio-based in-person course work and transition it to online platforms. The Plaintiffs assert claims against the University for breach of contract and unjust enrichment. They decision to shutter in-person activity "destroyed the value of the education" that they paid for. They argue that the handbooks and other materials distributed to students made specific promises regarding an in-person education, and having received something substantially different, they are entitled to a refund of the tuition and fees paid, as well as damages. In response, Columbia asserts that the program handbooks did not provide a specific promise of an in-person education with public expositions and equipment access. It also argues that, because the Plaintiffs do not allege that the University acted in bad faith, it cannot be liable for breach. After Columbia filed a Pre-Motion letter seeking leave to move to dismiss the claims asserted, the Plaintiffs filed an Amended Complaint on Jan. 21, 2021. On Feb. 22, 2021, Columbia moved to dismiss the action entirely based on the Amended Complaint's failure to state a claim for relief, Rule 12(b)(6), Fed. R. Civ. P. On July 12, 2021, the Plaintiff filed the Second Amended Complaint ("SAC") identical to the first except for the addition of two additional plaintiffs enrolled in the Sound Art program. At Columbia's request, the outstanding motion will be deemed to be addressed to the substantially identical SAC. Discussion A. So-Called "Educational Malpractice" New York courts are hesitant to entertain actions that "ask the Court to involve itself in the subjective professional judgments of trained educators." Because such cases rest on the "sound judgment of the professional educators who monitor the progress of their students on a regular basis," "courts have quite properly exercised the utmost restraint in applying traditional legal rules to disputes within the academic community." The rare instances where courts have entertained actions that appear on their face to be of the sort forbidden by this "educational malpractice" doctrine are where the educational institution is alleged to have acted arbitrarily, capriciously, or in bad faith, thereby breaching the implied contract with its students. Judge Castel opines that though the SAC makes references to the "value" of the MFA degree, the Plaintiffs are not asking the Court to substitute its judgment for that of professional educators. Rather, they ask the Court to evaluate statements in the various MFA handbooks, to assess whether the University made and breached any promises. The Complaint does not require the Court to evaluate whether Columbia acted appropriately in suspending classes, whether remote teaching methods were acceptable, or whether the degree conferred upon plaintiffs was without value. The question presented on the motion is whether the Plaintiffs have plausibly alleged that University entered into an implied in fact contract to provide in-person teaching consisting of studio and equipment access, and whether, in transitioning to remote learning, the University breached this contract. B. Breach of Contract To establish a claim for breach of contract, the Plaintiff must allege "the existence of a contract, the Plaintiff's performance thereunder, the Defendant's breach thereof, and resulting damages." Columbia does not contest the existence of a contract or performance by the Plaintiffs. Rather, it argues that the Plaintiffs have not identified specific University-made promises that were breached -- i.e., the substance of the contract. In the alternative, Columbia argues that even if specific promises were made and breached, a breach of contract action cannot lie against an educational institution absent a showing of bad faith. Reviewing the Handbooks in their entirety, Judge Castel concludes that the SAC plausibly alleges that Columbia made several specific promises to Visual Arts and Sound Art students that were not performed. He says, the allegations of the SAC and the materials which the SAC incorporates, including the course descriptions in the Handbooks and the exemplar of the studio lease, meet the requisite level of "certain specified services" to sustain a breach of contract action. Columbia's MFA handbooks and studio lease are akin to the materials relied upon by district courts that have upheld contract-based pandemic-related tuition refund actions. Moreover, like the Visual Arts and Sound Art handbooks, Judge Castel holds that the Film Handbook goes beyond a simple listing of the date, time, and location of classes. Rather, it is the promise of a program centered on the student's film production or screenwriting, with access to film locations, film equipment, editing equipment, and expert professors to instruct and critique. Columbia retains the leeway to adjust the program as is needed; even removing certain classes or requirements and adding substitutes is within their pedagogical expertise. But it must provide that which it promised. Columbia was not at fault for shuttering on-campus facilities. But that does not mean that it is entitled to keep the students' tuition payments for undelivered services. Lastly, though Columbia argues that the contract was impossible to perform, it refuses to rescind the contract or refund the money paid to it. Assuming frustration of purpose or impossibility of performance, Columbia has not demonstrated that New York law allows it to simply keep the students' money or offer them a bespoke make-good remedy of its own choosing. C. Unjust Enrichment The Plaintiffs also bring a claim of unjust enrichment against Columbia, alleging that in keeping tuition payments but not providing the promised facilities, teaching, activities, and resources, the University was enriched at their expense. To state a claim for unjust enrichment, a plaintiff must allege "that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered." Judge Castel finds that the Plaintiffs' unjust enrichment claim "rests on the same factual allegations as their contract claims." It seeks the same remedy as the breach of contract claims. Columbia does not contest that the implied in fact contract between Columbia and plaintiffs governs the relationship between the University and its students. In the face of a valid and enforceable contract, the quasi-contract claim of unjust enrichment should be dismissed. Conclusion For the reasons he stated, Judge Castel granted in part and denied in part Columbia's motion to dismiss the SAC. The Plaintiffs' unjust enrichment claim is dismissed (Third Claim for Relief). The breach of contract claims survive the motion to dismiss. The Clerk is directed to terminate the motion. A full-text copy of the Court's Aug. 11, 2021 Opinion & Order is available at https://tinyurl.com/8ch2pf33 from Leagle.com. COSTCO WHOLESALE: Extension of Class Status Deadline Sought ----------------------------------------------------------- In the class action lawsuit captioned as BRUCE CORKER d/b/a RANCHO ALOHA, v. COSTCO WHOLESALE CORPORATION, a Washington corporation, et al., Case No. 2:19-cv-00290-RSL (W.D. Wash.), the Parties file a joint unopposed motion for extension of class certification deadline. Under the current extended case schedule, motions for class certification must be filed by August 27, 2021. In the interim, the majority of Defendants have settled and have been dismissed from this matter. The Moving Parties agree that a 90-day extension of the 25 class certification deadline will facilitate continued mediation and settlement efforts with the Moving Defendant. Costco is an American multinational corporation which operates a chain of membership-only big-box retail stores. A copy of the Parties' motion dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/2URPNMG at no extra charge.[CC] The Attorneys for the Plaintiffs and the Proposed Class, are: Nathan T. Paine, Esq. Paul Richard Brown, Esq. Daniel T. Hagen, Esq. Andrew W. Durland, Esq. Joshua M. Howard, Esq. KARR TUTTLE CAMPBELL 701 Fifth Avenue, Suite 3300 Seattle, WA 98104 Telephone: (206) 223-1313 E-mail: pbrown@karrtuttle.com npaine@karrtuttle.com dhagen@karrtuttle.com adurland@karrrtuttle.com jhoward@karrtuttle.com - and - Jason L. Lichtman, Esq. Daniel E. Seltz, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephon: (212) 355-9500 E-mail: jlichtman@lchb.com dseltz@lchb.com - and - Andrew Kaufman, Esq. Michael W. Sobol, Esq. 222 2nd Avenue South, Suite 1640 Nashville, TN 37201 Telephone: 615.313.9000 E-mail: akaufman@lchb.com msobol@lchb.com CREDIT BUREAU: Bassett and Class Prevail in FDCPA and NCPA Suit --------------------------------------------------------------- In the case, KELLY M. BASSETT, individually and as heir of James M. Bassett, on behalf of herself and all other similarly situated; Plaintiff v. CREDIT BUREAU SERVICES, INC., and C. J. TIGHE, Defendants, Case No. 8:16CV449 (D. Neb.), Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska issued a Memorandum and Order finding that the Plaintiffs are the prevailing parties in the action and are entitled to attorney fees. The issue is before the Court after a jury trial held June 15, 2021, to June 17, 2021. The Plaintiffs brought the class action under both the Federal Debt Collection Practices Act (FDCPA) 15 U.S.C. Section 1692 et seq and the Nebraska Consumer Protection Act (NCPA), Neb. Rev. Stat. Section 59-1601 et seq. At trial, the Plaintiff's FDCPA claims were submitted to a jury on June 17, 2021. The jury returned a verdict in favor of the Defendants on all claims. The Nebraska Consumer Protection Act's principal thrust is equitable in nature insofar as it seeks to prevent prejudicial conduct, and thus it is a matter tried by the Court. On March 14, 2016, Defendants C.J. Tighe and Credit Bureau Services, INC. (CBS) sent the named Plaintiff, Kelly M. Bassett, a debt collection letter known in company records as a B-10. The Defendants sent this form letter to over 9,500 Nebraska residents with allegedly overdue medical debts. All B-10 letters include the statement, "Interest and other charges may accrue daily." A collection letter strikingly similar to Exhibit A was the subject of Reynolds v. Credit Bureau Servs., Inc., No. 8:15-cv-168, 2016 WL 2859604, at *1 (D. Neb. May 16, 2016) ("Defendants agree to change the form collection letter that is the subject of this litigation"). The Defendants agreed to stop using the challenged letter going forward. The March 14, 2016 letter sent to the Bassetts alleged several debts owed to General Radiology PC and one to Heartland Orthopedic. Immediately above the addressee's name, the letter states: "URGENT - DATED MATERIAL." The letter does not identify the patient's name or the dates of service for the alleged accounts. The letter also sets an appointment and declares, "if you fail to keep this appointment or pay the balance by that date, we will proceed with collection efforts." The record shows Defendants Credit Bureau Services, Inc. and C.J. Tighe are debt collectors. During the trial, Tighe testified she is the president and sole shareholder of Credit Bureau Services, and she manages and operates the business. Tighe testified she oversees CBS's collection efforts, drafted the B-10 letter, and establishes all the procedures for the debt collectors. She also testified CBS automatically charges interest on all its accounts unless explicitly prohibited by the client. She contended debt collectors are permitted to charge interest at a rate of 12% per year under Neb. Rev. Stat. Section 45-104. She further testified Heartland Orthopedic had a contract allowing for interest, but no evidence was admitted during the trial concerning an interest rate, the method of accrual or any written examples of the contract between the debtor and provider. During her testimony, Tighe explained every B-10 letter included accrued interest in the amounts alleged due. However, upon further questioning, she could not distinguish interest accrued from principal, nor match alleged B-10 amounts with original principal amounts identified in CBS's records. Tighe testified that interest was computed automatically in the computer system, and she would have to access the computer system to distinguish principal from interest on any given account. Further, she was unable to testify as to when CBS begins charging interest. CBS keeps all interest collected, according to Tighe. CBS, Tighe admitted, has no written contract with any consumers unless the consumer opts to sign a payment agreement. Specifically, CBS had no signed agreement with the Bassetts, and Tighe did not know if a written agreement between the Bassetts and General Radiology existed. Tighe also testified that while CBS's computer system can mimic the underlying contracts by charging the same interest as the creditors, CBS used the statutory interest rate which is a different rate than the one allegedly contracted for by Heartland Orthopedic. During the trial, Darcy Kreikemeier also testified. Kreikemeier worked as office manager for General Radiology PC during the relevant time. Part of her duties during that period was to refer past-due accounts to CBS for collection. She further testified General Radiology provided names, dates of service, and principal amounts to CBS. Notably, she asserted General Radiology did not charge interest on overdue accounts. General Radiology did not have contracts with the consumers, and consumers did not know when General Radiology was providing services, according to Kreikemeier. The Defendants repeatedly waived the bona fide error defense at trial. Judge Bataillon holds that the trial court is under an obligation to ensure the enforcement of controlling law. Since no rule requires a formal motion before a court can direct a verdict, the Judge has determined the controlling law requires judgment as a matter of law. Neb. Rev. Stat. Section 45-104 provides for the collection of prejudgment interest on four types of judgments. Prejudgment interest is part of the judgment and cannot be collected absent a judgment. Accordingly, as a matter of law, attempting to collect interest pursuant Section 45-104 without first obtaining a judgment overstates the amount due and is a material violation of 15 U.S.C. Section 1692(e). Additionally, the collection of interest to which a party is not entitled, constitutes an unfair and deceptive business practice under Neb. Rev. Stat. Section 59-1602. Therefore, Judge Bataillon does not accept the verdict of the jury in favor of the Defendants under 15 U.S.C Section 1692(e) (Claim I). On its own motion, the Judge finds that the Plaintiffs are entitled to judgment as a matter of law on Claim I. The Judge accepts the verdict of the jury in favor of the Defendants under 15 U.S.C. Section 1692(g) (Claim II). He finds in favor of the Plaintiffs and against the Defendants under Neb. Rev. Stat. Section 59-1602 (Claim III). He finds the Plaintiffs are prevailing parties in the action and are entitled to attorney fees. The Plaintiff will file a motion for attorney fees within 21 days of the date of the Order and a bill of costs in accordance with the local rules. The Defendants have 14 days thereafter to respond. The Plaintiff has seven days thereafter to file a reply brief. A separate judgment will be entered in accordance with the Memorandum and Order. A full-text copy of the Court's Aug. 13, 2021 Memorandum & Order is available at https://tinyurl.com/ykk5ycd8 from Leagle.com. CRONOS GROUP: Bid to Nix Consolidated Putative Class Suit Pending ----------------------------------------------------------------- Cronos Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss a consolidated putative class action suit, is pending. On March 11 and 12, 2020, two alleged shareholders of the Company separately filed two putative class action complaints in the U.S. District Court for the Eastern District of New York against the Company and its former Chief Executive Officer (now Executive Chairman) and Chief Financial Officer. The court has consolidated the cases, and the consolidated amended complaint alleges violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against all defendants, and Section 20(a) of the Exchange Act against the individual defendants. The consolidated amended complaint generally alleges that certain of the Company's prior public statements about revenues and internal controls were incorrect based on the Company's disclosures relating to the Audit Committee of the Board of Directors' review of the appropriateness of revenue recognized in connection with certain bulk resin purchases and sales of products through the wholesale channel. The consolidated amended complaint does not quantify a damage request. Defendants moved to dismiss on February 8, 2021. No further updates were provided in the Company's SEC report. Cronos Group Inc. is an innovative global cannabinoid company with international production and distribution across five continents. The company is committed to building disruptive intellectual property by advancing cannabis research, technology and product development and are building an iconic brand portfolio. The company is based in Ontario Canada. CRONOS GROUP: Plaintiff Appeals Dismissal of Bid to Commence Claim ------------------------------------------------------------------ Cronos Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the appeal in the purported class action suit filed in the Ontario Superior Court of Justice in Toronto, Ontario, Canada, is pending. On June 3, 2020, an alleged shareholder filed a Statement of Claim, as amended on August 12, 2020, in the Ontario Superior Court of Justice in Toronto, Ontario, Canada, seeking, among other things, an order certifying the action as a class action on behalf of a putative class of shareholders and damages of an unspecified amount. The Amended Statement of Claim names the Company, its former Chief Executive Officer (now Executive Chairman), Chief Financial Officer, former Chief Financial Officer and Chief Commercial Officer, and current and former members of the Board of Directors as defendants and alleges breaches of the Ontario Securities Act, oppression under the Ontario Business Corporations Act and common law misrepresentation. The Amended Statement of Claim generally alleges that certain of the Company's prior public statements about revenues and internal controls were misrepresentations based on the Company's March 2, 2020 disclosure that the Audit Committee of the Board of Directors was conducting a review of the appropriateness of revenue recognized in connection with certain bulk resin purchases and sales of products through the wholesale channel, and the Company's subsequent restatement. The Amended Statement of Claim does not quantify a damage request. On June 28, 2021, the Ontario Court dismissed motions brought by the plaintiff for leave to commence a claim for misrepresentation under the Ontario Securities Act and for certification of the action as a class action. The plaintiff appealed the Court's dismissal of the motions, except with respect to the former Chief Financial Officer and Chief Commercial Officer, who agreed not to seek costs from plaintiff in connection with the dismissal of the motions. Cronos Group Inc. is an innovative global cannabinoid company with international production and distribution across five continents. The company is committed to building disruptive intellectual property by advancing cannabis research, technology and product development and are building an iconic brand portfolio. The company is based in Ontario Canada. CULTURAL CARE: Court Narrows Claims in Posada's Unpaid Wages Suit ----------------------------------------------------------------- In the case, KAREN MORALES POSADA, AMANDA SARMENTO FERREIRA GUIMARAES, WILLIANA ROCHA, and SARA BARRIENTOS, individually and on behalf of all others similarly situated, Plaintiffs v. CULTURAL CARE, INC., a Massachusetts Corporation, Defendant, Civil No. 1:20-cv-11862-IT (D. Mass.), Judge Indira Talwani of the U.S. District Court for the District of Massachusetts granted in part and denied in part Cultural Care's Motion to Dismiss for lack of subject matter jurisdiction and for failure to state a claim. Plaintiffs Karen Morales Posada, Amanda Sarmento Ferreira Guimaraes, Williana Rocha, and Sara Barrientos are foreign nationals who participated as au pairs in the federal au pair program (under the J-1 Exchange Visitor Visa Program). Defendant Cultural Care sponsored the Plaintiffs, coordinated their immigration process, and placed them with a host family. The Plaintiffs allege that Cultural Care, through its failure to adequately pay them and to provide certain disclosures, has violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 201, et seq., and New York, California, New Jersey, and Illinois minimum wage, overtime and wage statement laws. They also allege that Cultural Care has engaged in deceptive trade practices. The Plaintiffs' complaint includes fourteen separate counts. Counts 1-11 allege, as Rule 23 class actions, violations of California, New York, New Jersey, and Illinois minimum wage, overtime, and wage statement laws. Counts 12-13 allege, as a collective action on behalf of the named plaintiffs and any similarly situated individuals in the three years prior to filing this suit, violations of the FLSA for failure to pay minimum wages and failure to pay overtime. Finally, Count 14 alleges, as a Rule 23 class action on behalf of the named Plaintiffs and all individuals who were sponsored by Cultural Care and worked as au pairs in the states of New York, Illinois, New Jersey, Connecticut, and Washington during "any portion of the period commencing during the applicable statute of limitations prior to the filing of the action through the entry of final judgment in the action," that Cultural Care engaged in deceptive trade practices in violation of the consumer protection laws of aforementioned states. Pending before the court is Cultural Care's Motion to Dismiss for lack of subject matter jurisdiction and for failure to state a claim. Cultural Care argues that it is entitled to derivative sovereign immunity (asserted via Rule 12(b)(1) of the Federal Rules of Civil Procedure), that the wage and employment laws allegedly violated are preempted by federal regulations (asserted via Rule 12(b)(6)), and that the Plaintiffs failed to allege facts establishing either that Cultural Care "employs" au pairs or that Cultural Care engaged in any deceptive practices (both also asserted via Rule 12(b)(6)). Discussion A. Derivative Sovereign Immunity Cultural Care argues, under Rule 12(b)(1), that the Court lacks subject matter jurisdiction over all 14 counts alleged in the Plaintiffs' complaint because Cultural Care is entitled to derivative sovereign immunity. Yearsley v. W.A. Ross Const. Co., 309 U.S. 18 (1940), is the wellhead for derivative sovereign immunity doctrine. The plaintiff in the case was a landowner whose property had been damaged by flooding that occurred as a result of a private construction contractor's work, and the Court held that the contractor was protected from suit by sovereign immunity because it had been hired by the federal government. Yearsley and its progeny dictate that to receive this kind of protection a private party must be performing exactly as expressly directed by the government. Judge Talwani holds that Cultural Care's arguments amount to saying that it operates in a heavily regulated area and therefore should have derivative sovereign immunity, a principle that is far broader than the court can accept. Accordingly, Cultural Care is not entitled to derivative sovereign immunity. B. Preemption Cultural Care argues, under Rule 12(b)(6), the Plaintiffs' state law class action claims -- Counts 1-11 and 14 -- are preempted by federal law and regulations via field preemption and conflict preemption. In an earlier action, Cultural Care asked the Court to determine that Massachusetts wage and hour laws were preempted and could not be enforced against Cultural Care or its host families, citing Capron v. Off. of Att'y Gen. of Massachusetts, 944 F.3d 9, 13 (1st Cir. 2019). In that case, Cultural Care did not develop its argument as to sponsors, however, and focused instead on host families. The First Circuit held that state wage regulations are not preempted as applied to host families, but left open the separate question of whether state wage laws were preempted as applied to sponsor organizations as not properly before it and premature. Cultural Care's preemption arguments now seek to have this question addressed. Judge Talwani holds that the only actual conflict Cultural Care identifies is that state employment laws generally prohibit age and national origin discrimination while the au pair regulations require selection based on those characteristics. But the First Circuit has already rejected that exact argument, and there is no reason to believe that the logic does not apply equally in the context of sponsor organizations. Cultural Care's preemption argument, as to both field and conflict preemption, fails. C. Whether Cultural Care "Employs" Au Pairs Cultural Care next argues, under Rule 12(b)(6), that the Plaintiffs did not adequately allege that it "employs" au pairs because merely following federal regulations -- as Cultural Care argues is the full extent of its role and the full extent of the Plaintiffs' allegations -- does not make it an employer. The Judge holds that though there is some support for the idea that merely following regulations does not make an organization an employer, the principle is not applicable in the case given the extent of Cultural Care's alleged activities. Cultural Care's policies, as alleged by the Plaintiffs, are clearly designed to enforce the government's regulations, but they are also broader than is strictly required by the regulations. His finding is in line with the conclusions of other courts that have examined this issue. There is no good reason to break from this trend. D. Deceptive Practices Claim Cultural Care argues, under Rule 12(b)(6), that Count 14, the deceptive practices claims, should be dismissed because the Plaintiffs failed to include the specific consumer protection laws that Cultural Care allegedly violated. But it is not necessary to cite the specific provision allegedly violated, Judge Talwani holds. The Judge says Cultural Care's citation to the contrary is once again distinguishable, as the Plaintiffs in that case, Galvin v. U.S. Bank, N.A., 852 F.3d 146, 160 (1st Cir. 2017), merely claimed a violation of a contractual provision prohibiting violating "applicable law"; this is of course noticeably less specific than the claims asserted in the case. Cultural Care also complains that the Plaintiffs asserted violations of Washington and Connecticut consumer protection law but none of the named plaintiffs worked in those states. Judge Talwani finds that legal theories need not be fully fleshed out in complaints, but the allegations here are insufficient to allow the named Plaintiffs to bring the claims on their own behalf under Connecticut or Washington consumer protection law or to establish standing for unnamed plaintiffs from Connecticut and Washington for claims under those state laws. Conclusion For the forgoing reasons, Judge Talwani denied Cultural Care's Motion to Dismiss as to Counts 1 through 13, granted regarding the Connecticut and Washington elements of Count 14, and denied as to the rest of Count 14. A full-text copy of the Court's Aug. 13, 2021 Memorandum & Order is available at https://tinyurl.com/pbc6u9yu from Leagle.com. DIXIE GROUP: Continues to Defend Johnson Class Suit in Georgia -------------------------------------------------------------- The Dixie Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a class action suit entitled, Jarrod Johnson v. 3M Company, et al., Civil Action No. 19-CV-02448-JFL-003. A lawsuit in Georgia was originally filed on November 26, 2019 and is presented as a class action lawsuit by and on behalf of a class of persons who obtain drinking water from the City of Rome, Georgia and the Floyd County Water Department (and similarly situated persons) (generally, for these purposes, residents of Floyd County) (styled Jarrod Johnson v. 3M Company, et al., Civil Action No. 19-CV-02448-JFL-003). On January 10, 2020, the Class Action Lawsuit was removed to the United States District Court for the Northern District of Georgia, Rome Division (styled Jarrod Johnson v. 3M Company, et al Civil Action No. 4:20-CV-0008-AT). The plaintiffs, in this case, allege their damages include without limitation the surcharges incurred for the costs of partially filtering the chemicals from their drinking water. The Complaint requests a jury trial and asserts damages unspecified in amount, in addition to requests for injunctive relief. The Company has filed a response to the Complaint, intends to defend the matter vigorously, and is unable to estimate its potential exposure, if any, at this time. No further updates were provided in the Company's SEC report. The Dixie Group, Inc. manufactures, markets, and sells floor covering products for residential and commercial applications primarily in the United States. The company was founded in 1920 and is based in Dalton, Georgia. DOMINION ENERGY: NND Plaintiffs Appeal on Summary Judgment Pending ------------------------------------------------------------------ Dominion Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the plaintiffs' appeal with the U.S. Court of Appeals for the Fourth Circuit on the grant of summary judgment in favor of SCANA Corporation, Dominion Energy South Carolina, Inc. (DESC), Fluor Corporation and Fluor Enterprises, Inc., is pending. In August 2017, a case was filed in the U.S. District Court for the District of South Carolina on behalf of persons who were formerly employed at the NND Project. In July 2018, the court certified this case as a class action. In February 2019, certain of these plaintiffs filed an additional case, which case has been dismissed and the plaintiffs have joined the case filed August 2017. The plaintiffs allege, among other things, that SCANA, DESC, Fluor Corporation and Fluor Enterprises, Inc. violated the Worker Adjustment and Retraining Notification Act in connection with the decision to stop construction at the NND Project. The plaintiffs allege that the defendants failed to provide adequate advance written notice of their terminations of employment and are seeking damages, which could be as much as $100 million for 100% of the NND Project. In January 2021, the U.S. District Court for the District of South Carolina granted summary judgment in favor of SCANA, DESC, Fluor Corporation and Fluor Enterprises, Inc. In February 2021, the plaintiffs filed a notice of appeal with the U.S. Court of Appeals for the Fourth Circuit. This case is pending. Dominion Energy, Inc., formerly Dominion Resources, Inc., incorporated on February 18, 1983, is a producer and transporter of energy. Dominion is focused on its investment in regulated electric generation, transmission and distribution and regulated natural gas transmission and distribution infrastructure. Dominion manages its operations through three primary segments: Dominion Virginia Power operating segment (DVP), Dominion Generation, Dominion Energy, and Corporate and Other. The company is based in Richmond, Virginia. DRAFTKINGS INC: Continues to Defend New York Putative Class Action ------------------------------------------------------------------ DraftKings Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a putative class action suit, currently pending before the U.S. District Court for the Southern District of New York. On July 2, 2021, the first of two substantially similar federal securities law putative class actions was filed in the U.S. District Court for the Southern District of New York against the Company and certain of its officers. The actions allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 on a behalf of a putative class of persons who purchased or otherwise acquired DraftKings stock between December 23, 2019 and June 15, 2021. The allegations relate to, among other things, allegedly false and misleading statements and/or failures to disclose information about the Company's business and prospects, based primarily upon the allegations concerning SBTech that were contained in a report published about DraftKings on June 15, 2021 by Hindenburg Research. DraftKings said, "We intend to vigorously defend against these claims." DraftKings Inc. operates as a digital sports entertainment and gaming company. The company provides users with daily sports, sports betting, and iGaming opportunities. It is also involved the design and development of sports betting and casino gaming platform software for online and retail sportsbook, and casino gaming products. The company distributes its product offerings through various channels, including traditional websites, direct app downloads, and direct-to-consumer digital platforms. DraftKings Inc. is headquartered in Boston, Massachusetts. DRAFTKINGS INC: DFS Class Settlement Granted Preliminary Approval ----------------------------------------------------------------- DraftKings Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the court granted preliminary approval of the settlement in the class action suit entitled, In Re: Daily Fantasy Sports Litigation. Between late 2015 and early 2016, certain individuals who allegedly registered and competed in daily sports fantasy contests on the company's and FanDuel's websites, and their family members, filed numerous actions (primarily purported class actions) against the company, FanDuel, and other related parties (the "DFS defendants") in courts across the United States. In February 2016, these actions were consolidated in a multi-district litigation in the U.S. District Court for the District of Massachusetts. On September 2, 2016, the consolidated group of plaintiffs filed their First Amended Master Class Action Complaint, superseding their original class action complaint, which superseded their individual complaints. The plaintiffs assert 27 claims arising under both state and federal law against the DFS defendants. The plaintiffs' claims against the company generally fall into four categories: (1) the company's online daily fantasy sports contests constitute illegal gambling; (2) the company promulgated false or misleading advertisements that emphasized the ease of play and likelihood of winning; (3) the company induced consumers to lose money through a deceptive bonus program; and (4) the company allowed its employees to participate in competitors' fantasy sports contests using non-public information, which gave such employees an unfair advantage over other contestants. The plaintiffs seek money damages, equitable relief, and disgorgement of gains against the company. On November 16, 2016, the DFS defendants filed a motion to compel arbitration against all named plaintiffs except one plaintiff asserting claims against the DFS defendants as a concerned citizen of the State of Florida (the "Concerned Citizen Claims"). On November 27, 2019, the Court granted the DFS defendants' motion to compel arbitration with respect to all named plaintiffs other than a small set of plaintiffs who are family members of individuals who have DraftKings or FanDuel accounts and who assert claims under various state laws regarding gambling (the "Family Member Plaintiffs"). On March 9, 2020, the DFS defendants moved to dismiss the Family Member Plaintiffs' claims and the Concerned Citizen Claims. On April 7, 2020, an opposition to the motion to dismiss the Concerned Citizen Claim was filed. On April 20, 2020, the Family Member Plaintiffs filed their opposition to the DFS defendants' motion to dismiss, and on April 29, 2020, the Family Member Plaintiffs filed a motion for leave to amend the First Amended Master Class Action Complaint. On May 11, 2020, the DFS defendants filed their reply in support of their motion to dismiss the Family Member Plaintiffs' claims and the Concerned Citizen Claim, and on May 13, 2020, the DFS defendants filed their opposition to the Family Member Plaintiffs' motion for leave to amend the First Amended Master Class Action Complaint. On March 5, 2020, one named plaintiff with respect to whom the motion to compel was granted filed a renewed motion to remand his case to state court. On May 29, 2020, we filed an opposition to that motion. On March 3, 2021, DraftKings and the plaintiffs (other than the Family Member Plaintiffs) filed in Court a joint motion for preliminary approval of a proposed settlement, which the Court approved on June 15, 2021. The proposed settlement is subject to final approval by the Court. DraftKings said, "We intend to vigorously defend this case. If the plaintiffs were to obtain a judgment in their favor in this lawsuit, we may be subject to substantial damages and we may have to withdraw our DFS operations in certain states. We have established an accrual for this matter. We cannot predict with any degree of certainty the outcome of this suit." DraftKings Inc. operates as a digital sports entertainment and gaming company. The company provides users with daily sports, sports betting, and iGaming opportunities. It is also involved the design and development of sports betting and casino gaming platform software for online and retail sportsbooks, and casino gaming products. The company distributes its product offerings through various channels, including traditional websites, direct app downloads, and direct-to-consumer digital platforms. DraftKings Inc. is headquartered in Boston, Massachusetts. DROPBOX INC: Final Settlement Approval Hearing Set for Dec. 2 ------------------------------------------------------------- Dropbox, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the U.S. District Court for the Northern District of California set a hearing for final approval of the settlement on December 2, 2021. The Company is currently involved in four putative class action lawsuits alleging violations of the federal securities laws that were filed on August 30, 2019, September 5, 2019, September 13, 2019, and October 3, 2019, in the Superior Court of the State of California, San Mateo County, against the Company, certain of its officers and directors, underwriters of its initial public offering (IPO), and Sequoia Capital XII, L.P. and certain of its affiliated entities. On October 4, 2019, two putative class action lawsuits alleging violations of the federal securities laws were filed against the Dropbox Defendants in the U.S. District Court for the Northern District of California (the "Federal Plaintiffs"). The six lawsuits each make the same or similar allegations of violations of federal securities laws, for allegedly making materially false and misleading statements in, or omitting material information from, the Company's IPO registration statement. The plaintiffs seek unspecified monetary damages and other relief. On March 2, 2020, the Federal Plaintiffs filed a consolidated class action complaint. On April 16, 2020, the Dropbox Defendants filed a motion to dismiss the federal consolidated class action complaint. On October 21, 2020, the court issued an order granting the Company's motion to dismiss the Federal Plaintiffs' complaint, setting a deadline of January 6, 2021 for the Federal Plaintiffs to file any amended complaint. The federal court extended this deadline to February 22, 2021 to provide time for the parties to explore resolving the case. On February 11, 2021, the parties attended mediation and reached a settlement in principle for an immaterial amount subject to final documentation and preliminary and final approval by the court. On July 22, 2021, the Court held a preliminary settlement approval hearing. On August 3, 2021, the Court entered an order preliminarily approving the settlement and providing for notice to the class. The Court set a hearing for final approval of the settlement on December 2, 2021. On May 11, 2020, the Dropbox Defendants filed a motion to dismiss the consolidated state court case based on the exclusive federal forum provisions contained in the Company's amended and restated bylaws. On December 4, 2020, the state court issued an order granting the Company's motion to dismiss the consolidated state court case. On December 15, 2020, the State Plaintiffs filed a notice of appeal of this order. The Company believes the appeal and claims are without merit and intends to vigorously defend against them. Dropbox, Inc. designs and develops document management software. The Company offers a platform that enables users to store and share files, photos, videos, songs, and spreadsheets. Dropbox serves customers worldwide. The company is based in San Francisco, California. DULUTH, MN: Jorgensen Appeals Ruling in Inmates' Rights Suit ------------------------------------------------------------ Petitioners Dwight Jorgensen and Paxton Anderson filed an appeal from a court ruling entered in the lawsuit styled Dwight Jorgensen and Paxton Anderson, individually, and on behalf of all others similarly situated, Petitioners v. B. Birkholz, Warden of Federal Prison Camp Duluth, and Michael Carvajal, Director of the Federal Bureau of Prisons, in their official capacities, Respondents, Case No. 0:20-cv-02349-NEB, in the U.S. District Court for the District of Minnesota. Petitioners Dwight Jorgensen and Paxton Anderson are inmates at Federal Prison Camp–Duluth. In response to the COVID‐19 pandemic, they petitioned for writ of habeas corpus under 28 U.S.C. Section 2241, inviting the Court to obtrude in "the difficult and delicate problems of prison management." The Bureau of Prisons (BOP) denied Petitioners' request for transfer to home confinement; they now request that the Court impose its judgment over the BOP's discretionary decision and order the BOP to do so. To support their request, Petitioners allege the COVID-19 pandemic has engendered such unconstitutional conditions in violation of the Eighth Amendment that the Court should award sweeping injunctive relief at FPC-Duluth, namely ordering the mass transfer of older or medically vulnerable inmates to home confinement. Specifically, they allege that prison officials' failure to implement adequate safeguards against COVID-19 constitutes an Eighth Amendment violation because their age and underlying medical conditions increase their risk of contracting SARS-CoV-2 and their morbidity or mortality rate if contracted. On July 13, 2021, in a Report and Recommendation, United States Magistrate Judge David T. Schultz recommended dismissing the Petition, denying the motion for injunctive relief, and staying the entry of judgment for 60 days to permit Petitioners to refile their claims as a civil rights lawsuit. The Petitioners now seek a review of the order entered by Judge Schultz. The appellate case is captioned as Dwight Jorgensen, et al. v. B. Birkholz, et al., Case No. 21-2786, in the United States Court of Appeals for the Eighth Circuit, filed on August 10, 2021.[BN] Petitioners-Appellants Dwight Jorgensen and Paxton Anderson, who are currently incarcerated at the Federal Prison Camp Duluth, in Duluth, Minnesota, appear pro se. Respondents-Appellees B. Birkholz, Warden of Federal Prison Camp Duluth, in their official capacities; and Michael D. Carvajal, Director of the Federal Bureau of Prisons, in their official capacities, are represented by: Ann M. Bildtsen, Esq. Erin Secord, Esq. Ana H. Voss, Esq. U.S. ATTORNEY'S OFFICE 600 U.S. Courthouse 300 S. Fourth Street Minneapolis, MN 55415-0000 Telephone: (612) 664-5600 EAN SERVICES: Class Certification Filing Due July 15, 2022 ---------------------------------------------------------- In the class action lawsuit captioned as Swiggum v. EAN Services, LLC, Case No. 8:21-cv-00493 (M.D. Fla.), the Hon. Judge Thomas P. Barber entered a case management and scheduling order as follows: -- Amended Pleadings/Joinder of Parties due by Oct. 15, 2021; -- Discovery due by July 1, 2022; -- Dispositive motions due by Sept. 1, 2022; -- Plaintiff disclosure of expert report due by May 13, 2022; -- Defendant disclosure of expert report due by June 10, 2022; -- Rebuttal expert disclosure due by July 1, 2022; -- Class certification deadline July 15, 2022; -- Pretrial Conference set for Feb. 8, 2023 at 01:30 PM in Tampa Courtroom 14 A before Judge Thomas P. Barber; -- Trial set for March 2023 trial term (commencing Feb. 27, 2023) before Judge Thomas P. Barber; -- The parties anticipate a jury trial will take 5-7 days to complete. Conduct mediation hearing by August 15, 2022. -- Lead counsel to coordinate dates. The suit involves wiretapping-related issues. Ean Services operates as an automobile services company. The Company specializes in automobile leasing and renting solutions.[CC] EI DU PONT: Continues to Defend PFAS-Related Class Suit -------------------------------------------------------- E. I. du Pont de Nemours and Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend against a nationwide class action suit in Ohio related to Perfluoroalkyl and polyfluoroalkyl substances (PFAS) water contamination. The company (EID) is a defendant in three lawsuits: an action by the State of Ohio based on alleged damage to natural resources, a putative nationwide class action brought on behalf of anyone who has detectable levels of Per- and polyfluoroalkyl substances (PFAS) in their blood serum, and an action by the City of Dayton claiming losses related to the investigation, remediation and monitoring of PFAS in water supplies. No further updates were provided in the Company's SEC report. E. I. du Pont de Nemours and Company operates as a science and technology-based company in the United States and internationally. The company was founded in 1802 and is headquartered in Wilmington, Delaware. E. I. du Pont de Nemours and Company is a subsidiary of DowDuPont Inc. EI DU PONT: Continues to Defend PFOA-Related Class Suit in New York ------------------------------------------------------------------- E. I. du Pont de Nemours and Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a class action suit related to perfluorooctanesulfonic acid ("PFOA") in New York around the Hoosick Falls Area. The company (EID) is a defendant in about 50 lawsuits, including a putative class action, brought by persons who live in and around Hoosick Falls, New York. These lawsuits assert claims for medical monitoring and property damage based on alleged PFOA releases from manufacturing facilities owned and operated by co-defendants in Hoosick Falls and allege that EID and 3M supplied some of the materials used at these facilities. EID is also one of more than ten defendants in a lawsuit brought by the Town of East Hampton, New York alleging PFOA and PFOS contamination of the town's well water. Additionally, EID, along with 3M, Chemours and Dyneon, have been named defendants in complaints filed by eight water districts in Nassau County, New York alleging that the drinking water they provide to customers is contaminated with PFAS and seeking reimbursement for clean-up costs. The water district complaints also include allegations of fraudulent transfer. E. I. du Pont de Nemours and Company operates as a science and technology-based company in the United States and internationally. The company was founded in 1802 and is headquartered in Wilmington, Delaware. E. I. du Pont de Nemours and Company is a subsidiary of DowDuPont Inc. EI DU PONT: PFOA-Related Class Suit in NJ Voluntarily Dismissed --------------------------------------------------------------- E. I. du Pont de Nemours and Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the putative class action suit alleging perfluorooctanesulfonic acid ("PFOA") from the company's former Chambers Works facility in New Jersey, contaminating drinking water sources, has been voluntarily dismissed. At June 30, 2021, two lawsuits were pending, one brought by a local water utility and the second a putative class action, against EID alleging that PFOA from EID's former Chambers Works facility contaminated drinking water sources. The putative class action was voluntarily dismissed without prejudice by the plaintiff. E. I. du Pont de Nemours and Company operates as a science and technology-based company in the United States and internationally. The company was founded in 1802 and is headquartered in Wilmington, Delaware. E. I. du Pont de Nemours and Company is a subsidiary of DowDuPont Inc. EI DU PONT: Various Drinking Water Contamination Suits Underway --------------------------------------------------------------- E. I. du Pont de Nemours and Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend several suits including class action suit related to perfluorinated chemicals and compounds (PFC). Prior to the separation of Chemours, EID introduced GenX as a polymerization processing aid and a replacement for PFOA at the Fayetteville Works facility in Bladen County, North Carolina. The facility is now owned and operated by Chemours, which continues to manufacture and use GenX. At June 30, 2021, several actions are pending in federal court against Chemours and EID relating to PFC discharges from the Fayetteville Works facility. One of these is a consolidated putative class action that asserts claims for medical monitoring and property damage on behalf of putative classes of property owners and residents in areas near or who draw drinking water from the Cape Fear River. Another action is a consolidated action brought by various North Carolina water authorities, including the Cape Fear Public Utility Authority and Brunswick County, that seek actual and punitive damages as well as injunctive relief. In another action with approximately 100 property owners near the Fayetteville Works facility filed a complaint against Chemours and EID in May 2020. The plaintiffs seek compensatory and punitive damages for their claims of private nuisance, trespass, and negligence allegedly caused by release of Per- and polyfluoroalkyl substances (PFAS). E. I. du Pont de Nemours and Company operates as a science and technology-based company in the United States and internationally. The company was founded in 1802 and is headquartered in Wilmington, Delaware. E. I. du Pont de Nemours and Company is a subsidiary of DowDuPont Inc. ELEVATE CREDIT: Bid to Dismiss Suit Against Rise Credit Pending --------------------------------------------------------------- Elevate Credit, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss a class action against Rise Credit Service of Texas, LLC d/b/a Rise, Opportunity Financial, LLC, a company wholly-owned subsidiary, is pending. On January 27, 2020, an Elevate wholly-owned subsidiary and other non-affiliated service providers to banks were sued in a class action lawsuit in Washington state. The Plaintiff in the case claims that the Elevate subsidiary and the other non-affiliated service providers to banks violated Washington's Consumer Protection Act by engaging in unfair or deceptive practices. The lawsuit was removed to federal court. On January 12, 2021, the court granted Rise's motion to dismiss, as well as the other non-affiliated service providers. The Judge did, however, allows Plaintiff the opportunity to amend its complaint. On June 22, 2021, the Plaintiff filed her Amended Complaint alleging that Elevate or its subsidiary were not service providers to the originating bank, but rather the true lender. On July 20, 2021, Elevate filed its Motion to Dismiss the Amended Complaint. Elevate disagrees that it has violated the Washington Consumer Protection Act and it intends to vigorously defend its position. Elevate Credit, Inc. provides online credit solutions to consumers and banks in the United States and the United Kingdom who are not well-served by traditional bank products and who are looking for better options than payday loans, title loans, pawn and storefront installment loans. The company is based in Forth Worth, Texas. ELEVATE CREDIT: Suit Related to TFI Operations Underway ------------------------------------------------------- Elevate Credit, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a class action suit related to the operations of Think Finance, Inc. (TFI) prior to and immediately after the 2014 spin-off. A class action lawsuit against Elevate was filed on August 14, 2020 in the Eastern District of Virginia alleging violations of usurious interest and aiding and abetting various racketeering activities related to the operations of Think Finance, Inc. (TFI) prior to and immediately after the 2014 spin-off. Elevate views this lawsuit as without merit and intends to vigorously defend its position. Based upon preliminary settlement discussions in the fourth quarter of 2020, the Company accrued a contingent loss in the amount of $17 million for estimated losses related to the Think Finance Litigation Trust ("TFLT") and class action disputes within Accounts payable and accrued liabilities on the Condensed Consolidated Balance Sheets at June 30, 2021 and December 31, 2020. Elevate Credit, Inc. provides online credit solutions to consumers and banks in the United States and the United Kingdom who are not well-served by traditional bank products and who are looking for better options than payday loans, title loans, pawn and storefront installment loans. The company is based in Forth Worth, Texas. ENDO INT'L: Bid to Dismiss Albiges Suit Pending ----------------------------------------------- Endo International plc said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss the putative class action suit entitled, Benoit Albiges v. Endo International plc, Paul V. Campanelli, Blaise Coleman, and Mark T. Bradley, is pending. In June 2020, a putative class action entitled Benoit Albiges v. Endo International plc, Paul V. Campanelli, Blaise Coleman, and Mark T. Bradley was filed in the U.S. District Court for the District of New Jersey by an individual shareholder on behalf of himself and all similarly situated shareholders. The lawsuit alleges violations of Section 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder relating to the marketing and sale of opioid medications and the New York Department of Financial Services' administrative action against the Company, Endo Pharmaceuticals Inc. (EPI), Endo Health Solutions Inc. (EHSI), Par Pharmaceutical, Inc. (PPI) and Par Pharmaceutical Companies, Inc. (PPCI). In September 2020, the court appointed Curtis Laakso lead plaintiff in the action. The lead plaintiff filed an amended complaint in November 2020. In January 2021, the defendants filed a motion to dismiss, which remains pending. Endo International plc, a specialty pharmaceutical company, manufactures and sells generic and branded pharmaceuticals in the United States, Canada, and internationally. The company operates through three segments: U.S. Generic Pharmaceuticals, U.S. Branded Pharmaceuticals, and International Pharmaceuticals. Endo International plc was founded in 1920 and is headquartered in Dublin, Ireland. ENDO INT'L: Claims Against PPI in Ranitidine Related Suit Dismissed ------------------------------------------------------------------- Endo International plc said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the MDL court dismissed all claims in the master complaints as to PPI and other generic defendants with prejudice on federal preemption grounds. In June 2020, an MDL pending in the U.S. District Court for the Southern District of Florida, In re Zantac (Ranitidine) Products Liability Litigation, was expanded to add PPI and numerous other manufacturers and distributors of generic ranitidine as defendants. The claims are generally based on allegations that under certain conditions the active ingredient in Zantac(R) and generic ranitidine medications can break down to form an alleged carcinogen known as N-Nitrosodimethylamine (NDMA). The complaints assert a variety of claims, including but not limited to various product liability, breach of warranty, fraud, negligence, statutory and unjust enrichment claims. Plaintiffs generally seek various remedies including, without limitation, compensatory, punitive and/or treble damages; restitution, disgorgement, civil penalties, abatement, attorneys' fees and costs as well as injunctive and/or other relief. Similar complaints against various defendants have also been filed in certain state courts. PPI and its subsidiaries have not manufactured or sold ranitidine since 2016. The MDL court has issued various case management orders, including orders directing the filing of "master" and short-form complaints, establishing a census registry process for potential claimants and addressing various discovery issues. In December 2020, the court dismissed the master complaints as to PPI and other defendants with leave to amend certain claims. Certain plaintiffs, including third party payers pursuing class action claims, have appealed the dismissal orders to the U.S. Court of Appeals for the Eleventh Circuit. In February 2021, various other plaintiffs filed an amended master personal injury complaint, a consolidated amended consumer economic loss class action complaint and a consolidated medical monitoring class action complaint. PPI was not named as a defendant in the consumer economic loss complaint or the medical monitoring complaint. In July 2021, the MDL court dismissed all claims in the master complaints as to PPI and other generic defendants with prejudice on federal preemption grounds. Plaintiffs' time to appeal has not yet expired. Endo said, "We will continue to vigorously defend the foregoing matters and to explore other options as appropriate in our best interests. Similar matters may be brought by others or the foregoing matters may be expanded. We are unable to predict the outcome of these matters or to estimate the possible range of any losses that could be incurred. Adjustments to our overall liability accrual may be required in the future, which could have a material adverse effect on our business, financial condition, results of operations and cash flows." Endo International plc, a specialty pharmaceutical company, manufactures and sells generic and branded pharmaceuticals in the United States, Canada, and internationally. The company operates through three segments: U.S. Generic Pharmaceuticals, U.S. Branded Pharmaceuticals, and International Pharmaceuticals. Endo International plc was founded in 1920 and is headquartered in Dublin, Ireland. ENDO INT'L: Continues to Defend Opioid-Related Class Suits ---------------------------------------------------------- Endo International plc said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company and its subsidiaries continue to defend opioid-related class action suits. Since 2014, multiple U.S. states as well as other governmental persons or entities and private plaintiffs in the U.S. and Canada, have filed suit against the company and/or certain of its subsidiaries, including Endo Health Solutions Inc. (EHSI), Endo Pharmaceuticals Inc. (EPI), Par Pharmaceutical, Inc. (PPI), Par Pharmaceutical Companies, Inc. (PPCI), Endo Generics Holdings, Inc. (EGHI), Vintage Pharmaceuticals, LLC, Generics Bidco I, LLC, DAVA Pharmaceuticals, LLC, Par Sterile Products, LLC (PSP LLC) and in Canada, Paladin and Endo Ventures Limited, as well as various other manufacturers, distributors, pharmacies and/or others, asserting claims relating to defendants' alleged sales, marketing and/or distribution practices with respect to prescription opioid medications, including certain of our products. As of July 29, 2021, filed cases in the U.S. of which the company was aware include, but are not limited to, approximately 20 cases filed by or on behalf of states; approximately 2,920 cases filed by counties, cities, Native American tribes and/or other government-related persons or entities; approximately 310 cases filed by hospitals, health systems, unions, health and welfare funds or other third-party payers and approximately 190 cases filed by individuals. Certain of the cases have been filed as putative class actions. The Canadian cases include an action filed by British Columbia on behalf of a proposed class of all federal, provincial and territorial governments and agencies in Canada that paid healthcare, pharmaceutical and treatment costs related to opioids, an action filed by the City of Grand Prairie, Alberta, and The Corporation of the City of Brantford, Ontario, on behalf of a proposed class of all local or municipal governments in Canada, as well as three additional putative class actions, filed in Ontario, Quebec and British Columbia, seeking relief on behalf of Canadian residents who were prescribed and/or consumed opioid medications. The complaints in the cases assert a variety of claims, including but not limited to statutory claims asserting violations of public nuisance, consumer protection, unfair trade practices, racketeering, Medicaid fraud and/or drug dealer liability laws and/or common law claims for public nuisance, fraud/misrepresentation, strict liability, negligence and/or unjust enrichment. The claims are generally based on alleged misrepresentations and/or omissions in connection with the sale and marketing of prescription opioid medications and/or alleged failures to take adequate steps to identify and report suspicious orders and to prevent abuse and diversion. Plaintiffs have sought various remedies including, without limitation, declaratory and/or injunctive relief; compensatory, punitive and/or treble damages; restitution, disgorgement, civil penalties, abatement, attorneys' fees, costs and/or other relief. The damages sought exceed the company's applicable insurance. Many of the U.S. cases have been coordinated in a federal multidistrict litigation (MDL) pending in the U.S. District Court for the Northern District of Ohio. Other cases are pending in various federal or state courts. As described herein, the cases are at various stages in the litigation process. Some trials or proceedings are ongoing and may be nearing a decision, others are scheduled or may begin during the remainder of 2021, and others are scheduled or may begin as soon as 2022 or 2023. The timing of any scheduled trial is subject to change. Endo International plc, a specialty pharmaceutical company, manufactures and sells generic and branded pharmaceuticals in the United States, Canada, and internationally. The company operates through three segments: U.S. Generic Pharmaceuticals, U.S. Branded Pharmaceuticals, and International Pharmaceuticals. Endo International plc was founded in 1920 and is headquartered in Dublin, Ireland. ENDO INT'L: Discovery Ongoing in Generic Drug Pricing Litigation ---------------------------------------------------------------- Endo International plc said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that discovery is ongoing in the class action suit involving alleged price-fixing of generic drugs currently pending before the U.S. District Court for the Eastern District of Pennsylvania. Since March 2016, various private plaintiffs, state attorneys general and other governmental entities have filed cases against the company subsidiary Par Pharmaceutical, Inc. (PPI) and/or, in some instances, the Company, Generics Bidco I, LLC, DAVA Pharmaceuticals, LLC, Endo Pharmaceuticals Inc. (EPI), Endo Health Solutions Inc. (EHSI), and/or Par Pharmaceutical Companies, Inc., as well as other pharmaceutical manufacturers and, in some instances, other corporate and/or individual defendants, alleging price-fixing and other anticompetitive conduct with respect to generic pharmaceutical products. These cases, which include proposed class actions filed on behalf of direct purchasers, end-payers and indirect purchaser resellers, as well as non-class action suits, have generally been consolidated and/or coordinated for pretrial proceedings in a federal MDL pending in the U.S. District Court for the Eastern District of Pennsylvania. There is also a proposed class action filed in the Federal Court of Canada on behalf of a proposed class of Canadian purchasers. The various complaints and amended complaints generally assert claims under federal and/or state antitrust law, state consumer protection statutes and/or state common law, and seek damages, treble damages, civil penalties, disgorgement, declaratory and injunctive relief, costs and attorneys' fees. Some claims are based on alleged product-specific conspiracies and other claims allege broader, multiple-product conspiracies. Under these overarching conspiracy theories, plaintiffs generally seek to hold all alleged participants in a particular conspiracy jointly and severally liable for all harms caused by the alleged conspiracy, not just harms related to the products manufactured and/or sold by a particular defendant. The MDL court has issued various case management and substantive orders, including orders denying certain motions to dismiss, and discovery is ongoing. The company will continue to vigorously defend the foregoing matters and to explore other options as appropriate in our best interests. Similar matters may be brought by others or the foregoing matters may be expanded. Endo said, "We are unable to predict the outcome of these matters or to estimate the possible range of any losses that could be incurred. Adjustments to our overall liability accrual may be required in the future, which could have a material adverse effect on our business, financial condition, results of operations and cash flows." Endo International plc, a specialty pharmaceutical company, manufactures and sells generic and branded pharmaceuticals in the United States, Canada, and internationally. The company operates through three segments: U.S. Generic Pharmaceuticals, U.S. Branded Pharmaceuticals, and International Pharmaceuticals. Endo International plc was founded in 1920 and is headquartered in Dublin, Ireland. ENDO INT'L: Multiple Motions Pending in Bucks County ERF Suit ------------------------------------------------------------- Endo International plc said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that multiple motions filed in the putative class action suit headed by the Bucks County Employees' Retirement Fund, are pending. In November 2017, a putative class action entitled Pelletier v. Endo International plc, Rajiv Kanishka Liyanaarchchie De Silva, Suketu P. Upadhyay and Paul V. Campanelli was filed in the U.S. District Court for the Eastern District of Pennsylvania by an individual shareholder on behalf of himself and all similarly situated shareholders. The lawsuit alleges violations of Section 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder relating to the pricing of various generic pharmaceutical products. In June 2018, the court appointed Park Employees' and Retirement Board Employees' Annuity Benefit Fund of Chicago lead plaintiff in the action. In September 2018, the defendants filed a motion to dismiss, which the court granted in part and denied in part in February 2020. In particular, the court granted the motion and dismissed the claims with prejudice insofar as they were based on an alleged price-fixing conspiracy; the court otherwise denied the motion to dismiss, allowing other aspects of the lead plaintiff's claims to proceed. In June 2020, the lead plaintiff moved for class certification. In February 2021, the court replaced the existing lead plaintiff with the Bucks County Employees' Retirement Fund, appointed Alexandre Pelletier, Nathan Dole and Wayne Wingard as co-lead plaintiffs and ordered supplemental briefing on class certification. The court granted Wingard's motion to withdraw as a co-lead plaintiff in April 2021. In May 2021, the court granted plaintiffs' motion for class certification. In July 2021, defendants filed a motion to modify the class definition and remove Mr. Pelletier as a class representative in light of certain expert disclosures by plaintiffs. In June 2021, defendants moved for summary judgment on certain grounds. Those motions remain pending. Endo International plc, a specialty pharmaceutical company, manufactures and sells generic and branded pharmaceuticals in the United States, Canada, and internationally. The company operates through three segments: U.S. Generic Pharmaceuticals, U.S. Branded Pharmaceuticals, and International Pharmaceuticals. Endo International plc was founded in 1920 and is headquartered in Dublin, Ireland. ESSENTIAL UTILITIES: Discovery Ongoing in Suit Over Water Advisory ------------------------------------------------------------------ Essential Utilities, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that discovery is ongoing in the putative class action suit related to the "do not consume" water advisory. During a portion of 2019, the Company initiated a do not consume advisory for some of its water customers in one division served by the Company's Illinois subsidiary. During the second quarter of 2021, an immaterial amount has been accrued for a portion of the fine or penalty that the company determined to be probable and estimable of being incurred. In addition, on September 3, 2019, two individuals, on behalf of themselves and those similarly situated, commenced an action against the Company's Illinois subsidiary in the State court in Will County, Illinois related to this do not consume advisory. The complaint seeks class action certification, attorney's fees, and "damages, including, but not limited to, out of pocket damages, and discomfort, aggravation, and annoyance" based upon the water provided by the Company's subsidiary to a discrete service area in University Park, Illinois. The complaint contains allegations of damages as a result of supplied water that exceeded the standards established by the federal Lead and Copper Rule. The complaint is in the discovery phase and class certification has not been granted. The Company is vigorously defending against this claim. A claim for the expenses incurred has been submitted to the Company's insurance carrier for potential recovery of a portion of these costs, and on August 3, 2020, the Company received $2,874 in insurance proceeds. The Company continues to assess the potential loss contingency on this matter. Essential Utilities said, "While the final outcome of this claim cannot be predicted with certainty, and unfavorable outcomes could negatively impact the Company, at this time in the opinion of management, the final resolution of this matter is not expected to have a material adverse effect on the Company’s financial position, results of operations or cash flows." No further updates were provided in the Company's SEC report. Essential Utilities, Inc., a Pennsylvania corporation, is the holding company for regulated utilities providing water, wastewater, or natural gas services to what the company estimate to be almost five million people in Pennsylvania, Ohio, Texas, Illinois, North Carolina, New Jersey, Indiana, Virginia, West Virginia, and Kentucky under the Aqua and Peoples brands. EVERGREEN ALLIANCE: Saavedra Suit Removed to C.D. California ------------------------------------------------------------ The case styled as Guillermo Hernandez Saavedra, individually, and on behalf of all other similarly situated current and former employees of Defendants v. Evergreen Alliance Golf Limited, L.P., DOES 1 through 50, inclusive, Case No. 30-02021-01200991-CU- was removed from the Orange County Superior Court to the U.S. District Court for the Central District of California on Aug. 24, 2021. The District Court Clerk assigned Case No. 8:21-cv-01394-DOC-JDE to the proceeding. The nature of suit is stated as Other Labor. Evergreen Alliance Golf Limited, L.P. doing business as Eagle Golf -- https://eaglesgolf.com/ -- provides golf course management services. The Company offers golf games, training programs, ground maintenance, and other related services.[BN] The Plaintiff is represented by: Farzad Rastegar, Esq. Rose W. Sorial, Esq. RASTERGAR LAW GROUP APC 22760 Hawthorne Boulevard Suite 200 Torrance, CA 90505 Phone: (310) 961-9600 Fax: (310) 961-9094 Email: farzad@rastegarlawgroup.com rose@rastegarlawgroup.com The Defendant is represented by: Grace Y Horoupian, Esq. Selwyn Chu, Esq. FISHER AND PHILLIPS LLP 2050 Main Street Suite 1000 Irvine, CA 92614 Phone: (949) 851-2424 Fax: (949) 851-0152 Email: ghoroupian@fisherphillips.com schu@fisherphillips.com FACEBOOK INC: Court Denies Cambridge Analytica Class Certif. ------------------------------------------------------------ Mark A. Gelowitz, Esq., Robert Carson, Esq., and Lauren Harper, Esq., of Osler Hoskin & Harcourt LLP, in an article for Lexology, report that on July 14, 2021, the Court of Queen's Bench for Saskatchewan dismissed the plaintiff's application for class certification in Kish v. Facebook, Inc., a putative privacy class action. Justice Keene's reasons address the evidentiary requirement of "some basis in fact" and reinforce that the certification process is a meaningful screening device in privacy class actions. Justice Keene's primary basis for denying certification was the plaintiff's failure to satisfy the evidentiary requirements for certification. Justice Keene struck out all of the evidence led by the plaintiff -- which consisted of a proposed expert report and two affidavits from the plaintiff herself -- because the evidence did not meet the threshold requirements for admissibility. The Expert Evidence: among other defects, the plaintiff did not establish that the proposed expert had the qualifications to answer the questions posed to him. Justice Keene also expressed concerns over the proposed expert's "research", which included relying on documents that had been downloaded from the internet but lacked any badges of reliability . The Plaintiff's Affidavits: all of the attachments to the plaintiff's affidavits were provided to her by her counsel, and the plaintiff conceded that she had not even read some of them. Justice Keene held that these documents were inadmissible because the plaintiff did not provide any evidence to show that they were reliable or met other threshold requirements for admissibility. Justice Keene went on to explain that, in the alternative, even if he were to consider evidence led by the plaintiff, the plaintiff failed to meet any of the five certification criteria prescribed in s. 6(1) of The Class Actions Act. Justice Keene found that there were many defects, including: No Cause of Action: the plaintiff's pleadings lacked the requisite particularization to allow the defendants to understand the claims. No Identifiable Class: the proposed class was not a single over-arching class sharing common issues. (Rather, it was two mutually exclusive classes: people with Facebook accounts, and people without.) No Common Issues: the over-generalization in the pleaded claims and the proposed class definition defeated commonality. Not the Preferable Procedure: the claims would require extensive individual inquiries. The Kish case is another helpful reminder that certification remains a meaningful screening device and that, depending on the facts of the case, there are a variety of strategies that defendants facing putative privacy class actions may be able to use to successfully defeat class actions at a preliminary stage. Osler represented Facebook, Inc. in this action with a team led by Mark A. Gelowitz, Robert Carson and Lauren Harper. [GN] FACEBOOK INC: Court Junks IMB Bid for Class Certification --------------------------------------------------------- In the class action lawsuit captioned as INTEGRITYMESSAGEBOARDS.COM, v. FACEBOOK, INC., Case No. 4:18-cv-05286-PJH (N.D. Cal.), the Court entered an order denying both the motion for class certification and motion to strike. The court also grants in part and denies in part Defendant's motions to seal various materials filed in connection with the motion for class certification and motion to strike. The Defendant operates Facebook. Facebook is a social media platform with two billion users. The platform permits users to share content. The Defendant does not charge users for access to or use of its platform. Instead, third party "advertisers," i.e., businesses, pay defendant to display their advertisements on Facebook to the platform's users. In its operative complaint, plaintiff alleges that defendant has misled advertisers about its ability to accurately deliver advertisements to users according to an advertiser's specifications. A copy of the Court's order dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3gvE8La at no extra charge.[CC] FARMLAND PARTNERS: Expert Discovery in Brokop Ongoing ----------------------------------------------------- Farmland Partners Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that expert discovery is ongoing in the purported class action suit headed by Don Brokop. On July 11, 2018, a purported class action lawsuit, captioned Kachmar v. Farmland Partners Inc., was filed in the United States District Court for the District of Colorado against the Company and certain of its officers by a purported Company stockholder. The complaint alleges, among other things, that the company's disclosure related to the FPI Loan Program was materially false and misleading in violation of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. On August 17, 2018, a second purported class action, captioned Mariconda v. Farmland Partners Inc. was filed in the United States District Court for the District of Colorado. As discussed below, the current named plaintiff in that action is a purported FPI shareholder named Don Brokop. The complaint filed in the Brokop Action alleged substantially identical claims to those alleged in the Kachmar Action. Several purported shareholders moved to consolidate the Kachmar Action and the Brokop Action and for appointment as lead plaintiff. On November 13, 2018, the plaintiff in the Kachmar Action voluntarily dismissed the Kachmar Action. On December 3, 2018, the court appointed two purported stockholders of the Company, the Turner Insurance Agency, Inc. and Cecilia Turner, as lead plaintiffs in the Brokop Action. On March 11, 2019, the Turners and additional plaintiff Obelisk Capital Management filed an amended complaint in the Brokop Action. On June 18, 2019, the court denied the defendants' motion to dismiss the amended complaint in the Brokop Action. The defendants answered the amended complaint on July 2, 2019. On December 6, 2019, plaintiffs voluntarily dismissed Obelisk Capital Management from the case. In connection with Obelisk Capital Management's dismissal from the case, defendants filed a motion for judgment on the pleadings on December 10, 2019, which automatically stayed discovery in the action pending the court's determination of the motion. On December 16, 2019, plaintiffs filed a motion for class certification, seeking to certify the case as a class action on behalf of purchasers of Farmland Partners' common stock between November 12, 2015 and July 10, 2018 and to have the Turners and purported stockholder Don Brokop appointed as class representatives. On December 27, 2019, plaintiffs filed a motion for leave to file a second amended complaint to add Brokop as an additional plaintiff in place of Obelisk Capital Management. On December 8, 2020, the court granted the Turners' motion to amend to add Brokop as an additional plaintiff and denied the Company's motion for judgment on the pleadings. As a result, the automatic discovery stay was lifted and the court entered a schedule for proceedings going forward. The Company, Mr. Paul A.Pittman, and Mr. Luca Fabbri filed an opposition to plaintiffs' motion for class certification on February 8, 2021. On February 17, 2021, plaintiffs filed a motion to withdraw the Turners as lead plaintiffs and to substitute Brokop as lead plaintiff. On June 7, 2021, the court granted the motion to withdraw the Turners and substitute Brokop as lead plaintiff. The parties completed fact discovery on June 29, 2021. On July 23, 2021, Magistrate Judge Nina Wang issued a Report and Recommendation to the district court recommending that Brokop's motion for class certification be granted in part and denied in part. Specifically, the magistrate judge recommended that the district court deny the motion as to purchasers of Farmland Partners common stock between November 12, 2015 and December 14, 2016 and grant the motion as to purchasers between December 14, 2016 and July 11, 2018. The district court has not yet acted on the magistrate judge's recommendation. Expert discovery is ongoing and is scheduled to conclude on October 1, 2021. Farmland said, "At this time, no class has been certified in the Turner Action and we do not know the amount of damages or other remedies being sought by the plaintiffs. The Company can provide no assurances as to the outcome of this litigation or provide an estimate of related expenses at this time." Farmland Partners Inc. is an internally managed real estate company that owns and seeks to acquire high-quality North American farmland and makes loans to farmers secured by farm real estate. The company is based in Denver, Colorado. FASTLY INC: Bid to Junk Purported Securities Class Suit Pending --------------------------------------------------------------- Fastly, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss the consolidated purported securities class action suit entitled, In re Fastly, Inc. Securities Litigation, is pending. On August 27, 2020, a purported securities class action lawsuit was filed in the United States District Court for the Northern District of California, captioned Marcos Betancourt v. Fastly, Inc., et al. (Case No. 4:20-cv-06024-PJH) naming as defendants the company and certain of its officers. On September 15, 2020, a substantively identical complaint was filed against the same defendants in the same court, captioned Rami Habib v. Fastly, Inc., et al. (Case No. 4:20-cv-06454-JST). On September 27, 2020, the court consolidated the two cases into one putative class action, captioned In re Fastly, Inc. Securities Litigation. On February 10, 2021, the Court appointed lead plaintiff and lead counsel. On April 12, 2021, Lead Plaintiff filed a consolidated complaint. The Consolidated Complaint asserts that all defendants violated Section 10(b) of the Securities Exchange Act of 1934, as amended and SEC Rule 10b-5 by making materially false or misleading statements between May 6, 2020 and October 14, 2020 regarding the Company's business and financials, including allegations that the Company failed to disclose the identity of one of its largest customers. The Lead Plaintiff also alleges that certain of the Company's officers violated Section 20(a) of the Exchange Act. On June 11, 2021, defendants filed a motion to dismiss the Consolidated Complaint that Lead Plaintiff opposed on July 26, 2021. Fastly, Inc. provides infrastructure software. The Company offers cloud computing, image optimization, security, edge computer technology, and streaming solutions. Fastly serves customers in the United States. The company is based in San Francisco, California. FEDEX GROUND: Oglesby's Discovery Bid in Unpaid OT Suit Sustained ----------------------------------------------------------------- In the case, TAWANNA OGLESBY, Plaintiff v. FEDEX GROUND PACKAGE SYSTEM, INC., Defendant, Case No. 3:20-cv-346 (S.D. Ohio), Judge Walter H. Rice of the U.S. District Court for the Southern District of Ohio, Western Division: (i) overruled FedEx's Motion for Partial Summary Judgment, without prejudice to re-filing; and (ii) sustained the Plaintiff's Motion for Discovery Pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. I. Background Plaintiff Oglesby brings suit on her behalf and as a collective and class action lawsuit against FedEx. She alleges that she and other putative class members were package delivery drivers for FedEx but were "classified" as employees of "intermediary employers." The Defendant referred to these employers as "independent service providers" ("FedEx ISPs"). The FedEx ISP package delivery drivers wore a FedEx uniform and drove trucks that had the FedEx logo and color scheme and weighed less than 10,000 pounds. FedEx and its employees controlled the FedEx ISPs including the ability to require them to terminate the package delivery drivers. The Complaint alleges that the Plaintiff and other similarly situated package delivery drivers were not paid overtime wages for hours worked by them in excess of 40 per week in violation of the Fair Labor Standards Act, ("FLSA"), 29 U.S.C. Section 201, et seq., and the Ohio Minimum Wage Fairness Act ("OMFWSA"), Ohio Revised Code Section 4111.01, et seq. The Complaint also includes a claim under Ohio's Prompt Pay Act, Ohio Revised Code Section 4113.15, for the Defendant's violation of the prompt payment of overtime wages, and a claim pursuant to Ohio Revised Code Section 2307.60 for statutory damages for injuries caused by a criminal act. In its Motion, FedEx argues that it is entitled to a partial summary judgment on the Plaintiff's claims for overtime for two reasons. First, it contends that "during a substantial number" of the workweeks, she was "exempt from federal and state overtime requirements" because she drove only vehicles weighing over 10,000 pounds ("heavy" vehicles). Second, when she was operating vehicles under 10,000 pounds and arguably eligible for overtime wages, she was "not on duty more than 40 hours." In support of its motion, FedEx attaches four declarations: (1) Don Lindner, Senior Manager of the FedEx Ground's Vehicle Maintenance; (2) Robert Noth, District Manager of FedEx Ground Package System, Inc.; (3) Susan Kernen, Senior Paralegal in the legal department of FedEx Ground Package System, Inc.; and (4) Kelly Ball, Authorized Officer ("AO") for Fast Ball Trucking, Inc., a former employer of the Plaintiff. It argues that these declarations, and the approximately 120 pages of exhibits attached to the Kernen Declaration, establish "undisputed material facts." Based on these declarations and exhibits, FedEx moves for partial summary judgment on the Plaintiff's overtime claims for the following date ranges: Aug. 15, 2017 - Sept. 23, 2017; Oct. 10, 2017 - April 6, 2018; April 17, 2018 - April 27, 2018; May 15, 2018 - July 31, 2018; Aug. 14, 2018 - Nov. 9, 2018; and Nov. 20, 2018 - June 22, 2020. It asserts that if its Motion is granted, only seven workweeks will be in dispute. The Plaintiff argues that she is unable to respond substantively to the Motion for Partial Summary Judgment because she has not had the opportunity to conduct any discovery. She requests, pursuant to Federal Rule of Civil Procedure 56(d), that the Court defers ruling on the Motion until she has had an opportunity to conduct reasonable discovery. II. Fed.R.Civ.P. 56(d) Federal Rule of Civil Procedure 56(d) states that "if a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." In determining whether to grant a request under Rule 56(d), the Court should consider: (1) when the movant learned of the issue that is the subject of the desired discovery; (2) whether the desired discovery could make a difference in the outcome of the pending motion; (3) how long the discovery period has lasted; (4) whether the movant has been dilatory in its discovery efforts; and (5) whether the opposing party was responsive to prior discovery requests. As the non-movant, the Plaintiff has the obligation to inform the Court of her need for discovery. One of her attorneys, Clifford P. Bendau, II, has submitted a declaration in conjunction with her Rule 56(d) Motion for Discovery. The Bendau Declaration states that the Plaintiff has been unable to obtain any discovery from FedEx. The Plaintiff proposed the parties enter into a stipulation concerning the briefing schedule for Plaintiff to respond to Defendant's Motion. She further stated what discovery it needed to respond to the Motion. The Defendant's counsel, however, declined to enter into a stipulation and continued to refuse to engage in any discovery. Because there has been no discovery and the Defendant's motion was filed approximately three months after the filing of its Answer, the only issue is whether the Plaintiff's desired discovery could make a difference in the outcome of the pending motion. Judge Rice explains that although Rule 56(b) of the Federal Rules of Civil Procedure permits the filing of a motion for summary judgment at this early stage, the Plaintiff is entitled to conduct discovery so the Court can determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Based on the Bendau Declaration, the Judge finds that the discovery sought by Plaintiff could make a difference in the outcome of the Motion. Because the Plaintiff must be given a reasonable opportunity to conduct discovery before responding to Defendant's Motion for Partial Summary Judgment, the Motion is overruled without prejudice to refiling. The Plaintiff's Motion for Discovery Pursuant to Fed. R. Civ. P. 56(d) is sustained. III. Conclusion For the reasons set forth, Judge Rice overruled the Defendant's Motion without prejudice to refiling. He sustained the Plaintiff's Motion to Conduct Discovery. A full-text copy of the Court's Aug. 11, 2021 Decision is available at https://tinyurl.com/wxy8cewh from Leagle.com. FIFTH THIRD: Court Dismisses Christakis Putative Class Suit ------------------------------------------------------------ Fifth Third Bancorp said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the court granted the defendants motion to dismiss the putative class action suit entitled, Lee Christakis, individually and on behalf of all others similarly situated v. Fifth Third Bancorp, et al., Case No. 1:20-cv-2176 (N.D. Ill). On April 7, 2020, Plaintiff Lee Christakis filed a putative class action lawsuit against Fifth Third Bancorp, Fifth Third Chairman and Chief Executive Officer Greg D. Carmichael, and former Fifth Third Chief Financial Officer Tayfun Tuzun in the U.S. District Court for the Northern District of Illinois entitled Lee Christakis, individually and on behalf of all others similarly situated v. Fifth Third Bancorp, et al., Case No. 1:20-cv-2176 (N.D. Ill). The case brings two claims for violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, alleging that the Defendants made material misstatements and omissions in connection with the alleged unauthorized opening of credit card, savings, checking, online banking and early access accounts from 2010 through 2016. The plaintiff seeks certification of a class, unspecified damages, attorneys' fees and costs. On June 29, 2020, the Court appointed Heavy & General Laborers' Local 472 & 172 Pension and Annuity Funds as lead plaintiff, and Robins Geller Rudman & Dowd LLP as lead counsel for the plaintiff. On September 14, 2020, the lead plaintiff filed its amended consolidated complaint. On April 27, 2021, the Court granted the defendants' motion to dismiss and provided plaintiff with leave to amend to attempt to cure the deficiencies. Fifth Third Bancorp operates as a diversified financial services company in the United States. Fifth Third Bancorp was founded in 1858 and is headquartered in Cincinnati, Ohio. FIFTH THIRD: Klopfenstein Wins Bid for Class Certification ----------------------------------------------------------- Fifth Third Bancorp said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the trial court granted plaintiffs' motion for class certification in the class action suit entitled, In re: Fifth Third Early Access Cash Advance Litigation. On August 3, 2012, William Klopfenstein and Adam McKinney filed a lawsuit against Fifth Third Bank in the United States District Court for the Northern District of Ohio (Klopfenstein et al. v. Fifth Third Bank), alleging that the 120% APR that Fifth Third disclosed on its Early Access program was misleading. Early Access is a deposit-advance program offered to eligible customers with checking accounts. The plaintiffs sought to represent a nationwide class of customers who used the Early Access program and repaid their cash advances within 30 days. On October 31, 2012, the case was transferred to the United States District Court for the Southern District of Ohio. In 2013, four similar putative class action lawsuits were filed against Fifth Third Bank in federal courts throughout the country (Lori and Danielle Laskaris v. Fifth Third Bank, Janet Fyock v. Fifth Third Bank, Jesse McQuillen v. Fifth Third Bank, and Brian Harrison v. Fifth Third Bank). Those four lawsuits were transferred to the Southern District of Ohio and consolidated with the original lawsuit as In re: Fifth Third Early Access Cash Advance Litigation (Case No. 1:12-CV-851). On behalf of a putative class, the plaintiffs sought unspecified monetary and statutory damages, injunctive relief, punitive damages, attorneys' fees, and pre- and post-judgment interest. On March 30, 2015, the court dismissed all claims alleged in the consolidated lawsuit except a claim under the Truth in Lending Act(TILA). On May 28, 2019, the Sixth Circuit Court of Appeals reversed the dismissal of plaintiffs' breach of contract claim and remanded for further proceedings. The plaintiffs' claimed damages for the alleged breach of contract claim exceed $280 million. On March 26, 2021, the trial court granted plaintiffs' motion for class certification. No trial date has been set. Fifth Third Bancorp operates as a diversified financial services company in the United States. Fifth Third Bancorp was founded in 1858 and is headquartered in Cincinnati, Ohio. FIFTH THIRD: Loses Bid to Dismiss Fox Putative Class Suit ---------------------------------------------------------- Fifth Third Bancorp said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the trial court in Dr. Steven Fox, individually and on behalf of all others similarly situated v. Fifth Third Bancorp, et al., Case No. 2020CH05219, denied defendant's motion to dismiss. On July 31, 2020, a putative shareholder class action lawsuit captioned Dr. Steven Fox, individually and on behalf of all others similarly situated v. Fifth Third Bancorp, et al., Case No. 2020CH05219 was filed on behalf of former shareholders of MB Financial, Inc. in the Cook County, Illinois Circuit Court. The suit brings claims for violation of Sections 11 and 12(a)(2) of the Securities Act of 1933, alleging that Bancorp and certain of its officers and directors made material misstatements and omissions regarding the alleged improper cross-selling strategy in filings made in connection with the Bancorp's merger with MB Financial, Inc. On March 19, 2021, the trial court denied the defendants' motion to dismiss. Fifth Third Bancorp operates as a diversified financial services company in the United States. Fifth Third Bancorp was founded in 1858 and is headquartered in Cincinnati, Ohio. FIRST COMMONWEALTH: Dismissal of Putative Class Suit Under Appeal ----------------------------------------------------------------- First Commonwealth Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the appeal on the order of dismissal of the putative class suit filed in the Court of Common Pleas of Allegheny County, Pennsylvania, is pending. First Commonwealth Bank was named a defendant in a putative class action that commenced on October 14, 2020 in the Court of Common Pleas of Allegheny County, Pennsylvania. The claims related to certain notices and other practices in connection with the repossession of motor vehicles. On May 4, 2021, the Court granted the Bank's preliminary objections and dismissed the plaintiffs' complaint with prejudice. The plaintiffs have filed a notice of appeal of the Court's order dismissing the complaint. First Commonwealth Financial Corporation, through its subsidiary First Commonwealth Bank, provides consumer and commercial banking services to individuals, and small and mid-sized businesses in the United States. The company is based in Indiana, Pennsylvania. FIVE POINT: Bayview Hunters Point Litigation Underway ----------------------------------------------------- Five Point Holdings, LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a putative class action suit initiated by the residents of the Bayview Hunters Point neighborhood. In May 2018, residents of the Bayview Hunters Point neighborhood in San Francisco filed a putative class action in San Francisco Superior Court naming Tetra Tech, Inc. and Tetra Tech EC, Inc., an independent contractor hired by the U.S. Navy to conduct testing and remediation of toxic radiological waste at The San Francisco Shipyard ("Tetra Tech"), Lennar and the Company as defendants. The plaintiffs allege that, among other things, Tetra Tech fraudulently misrepresented its test results and remediation efforts. The plaintiffs are seeking damages against Tetra Tech and the Company and have requested an injunction to prevent the Company and Lennar from undertaking any development activities at The San Francisco Shipyard. No further updates were provided in the Company's SEC report. Five Point Holdings, LLC, through its subsidiary, Five Point Operating Company, LP, plans, develops, and owns mixed-use communities in California, the United States. The company operates through four segments: Newhall, San Francisco, Great Park, and Commercial. The company was formerly known as Newhall Holding Company, LLC and changed its name to Five Point Holdings, LLC in May 2016. Five Point Holdings, LLC was founded in 2009 and is headquartered in Irvine, California. FONTANA & FONTANA: Court Approves Settlement Deal in Bardales Suit ------------------------------------------------------------------ In the class action lawsuit captioned as CORNELIA BARDALES, ET AL. v. FONTANA & FONTANA, LLC, ET AL., Case No. 2:19-cv-00340-WBV-DMD (E.D. La.), the Hon. Judge Wendy B. Vitter entered an order: 1. granting in part and denying in part as moot the consent notion for final approval of class settlement and class certification; 2. approving the class settlement agreement; and 3. denying in part as moot Plaintiffs bid to determine the amount of class counsel's award of attorney's fees and costs; Fontana & Fontana is in the legal services industry in New Orleans, Louisiana. A copy of the Court's order and reasons dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/38eyqIX at no extra charge.[CC] GEICO CASUALTY: Court Grants in Part Bid to Dismiss Jones Suit -------------------------------------------------------------- In the case, Daniel James Jones, Plaintiff v. GEICO Casualty Company, et al., Defendants, Case No. CV-20-01734-PHX-DJH (D. Ariz.), Judge Diane J. Humetewa of the U.S. District Court for the District of Arizona granted in part the Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. In his First Amended Class Action Complaint ("FAC"), named Plaintiff Jones alleges Defendants GEICO Casualty Co., GEICO Indemnity Co., and GEICO General Insurance Co. (collectively "Geico") charged "unconscionably excessive" auto insurance rates during the Covid-19 pandemic. As pandemic-related lockdown measures went into effect, fewer people left their homes to drive and, therefore, there were significantly fewer automobile accidents. With fewer accidents, Geico received fewer insurance claims and an accompanying "windfall" of profits. To compensate its customers for this windfall, Geico started a "GEICO Giveback" program in the spring of 2020, which gave new and preexisting customers a 15% credit to buy or renew a policy. As stated on the Geico website, "shelter in place laws have reduced driving, and Geico is passing these savings on to our auto, motorcycle, and RV customers." However, the Plaintiff alleges this program was inadequate because the Center for Economic Justice and the Consumer Federation of America say consumers should get a 30% refund on their premiums to compensate for Geico's windfall. The Plaintiff renewed his Geico policy for the period of November 2019 to May 2020 for $820.62. He then renewed the Policy for the period of May 2020 to November 2020, and because of the GEICO Giveback program, the Plaintiff received a $110.37 credit, which reduced the renewal cost to $625.42. The Plaintiff alleges he renewed the Policy because Geico failed to disclose its windfall, because it failed to disclose that its premiums were not based on an accurate assessment of automobile risk during the pandemic, and because Geico failed to disclose that its Giveback program is not as favorable to consumers as other insurers' refund programs. The FAC alleges that Geico had the discretion to lower its premiums under the terms of the Policy itself. It also alleges Geico "improperly exercised" that discretion by "failing to adjust premiums downward and to issue refunds of the now-excessive premiums." The FAC brings four causes of action. Count I alleges Geico breached the insurance Policy's covenant of good faith and fair dealing. Count II seeks declaratory relief resulting from Geico's alleged frustration of the Policy's purpose, for which the Plaintiff requests the Court declares he and his class members are no longer required to pay their insurance premiums and that Geico disgorges its windfall. Count III alleges that Geico's conduct violates the Arizona Consumer Fraud Act through deceptive statements made about its premiums. Finally, Count IV alleges that if Geico is not liable for the other Counts, then it should, in the alternative, be liable for unjust enrichment. Geico moves to dismiss the entire FAC under Federal Rule of Civil Procedure 12(b)(6). Analysis Geico argues all four of the FAC's Counts fail to state a claim. a. Breach of the Covenant of Good Faith and Fair Dealin The Plaintiff argues Geico impeded a reasonably expected benefit of the Policy, which was that Geico would lower its rates if the risk of a claim were to significantly decrease. This duty, he argues, existed independently from the Policy, so long as the Policy itself did not explicitly foreclose it. Furthermore, even though Geico did lower its rates to some extent, the Plaintiff's argument implies that the Giveback program's 15% discount did not satisfy this implied covenant. In response, Geico argues the Court should reject the Plaintiff's claim because it cannot reasonably be expected to reduce its rates in response to unexpectedly diminished risk as that is "the very nature of insurance." Judge Humetewa finds that if she were to accept the reasoning behind the Plaintiff's claimed breach of the covenant of good faith and fair dealing, her holding would drastically impair the predictability required by an orderly commerce. In addition, she finds that the Plaintiff's argument ignores the inherent risk parties take on when entering into an insurance agreement. Although the Plaintiff may argue in hindsight that the premium is unfair, that is not sufficient ground to show Geico has somehow breached an implied duty of good faith and fair dealing. And if the Judge were to accept the basis of the Plaintiff's claim, she would necessarily hold that a party who has profited from a contract due to unforeseen events must pay its windfall to the other party. Considering the surrounding circumstances of the insurance contract at issue, and using its own common sense, the Judge will dismiss Count I. b. Frustration of Purpose Count II of the FAC argues the parties entered into their agreement assuming that the pandemic would not occur, and, because the pandemic did occur, Plaintiff should be excused from paying part of his premiums. The Count is stylized as one for "Declaratory Relief-Frustration of Purpose." Geico argues the Plaintiff's frustration of purpose claim is not a proper cause of action and, in the alternative, the principal purpose of the contract, insurance coverage for his vehicle, has not been alleged to be destroyed. The Plaintiff argues it may properly assert the frustration of purpose doctrine as a cause of action and that this claim does not require allegations that he was unable to drive his car or that it was not covered by the insurance. Judge Humetewa need not address whether Count II is a proper cause of action because the Plaintiff fails to show it warrants relief. She finds that the FAC fails to show the first element, that the principal purpose in the agreement was frustrated. The Plaintiff argues the purpose of the Policy is to have "insurance at rates based on an accurate assessment of risk." While the Plaintiff may have been looking for a good deal, the Judge holds that the principal purpose in buying insurance is to obtain insurance. Without any allegations that his insurance coverage has been hampered, the Plaintiff fails to show a claim for frustration of purpose. In addition, an inherent risk in buying insurance is that the world will become less risky such that any amount paid for insurance, in hindsight, is too much. This known risk materialized. Therefore, the Plaintiff also fails to show the second element, that the frustrated purpose is one beyond the risk that an insured necessarily accepts in buying insurance. The Judge will dismiss Count II. c. Arizona Consumer Fraud Act Count III alleges a violation of the Arizona Consumer Fraud Act ("CFA"), which prohibits "misrepresentation of any material fact in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived or damaged thereby." To bring a CFA clam, a plaintiff must show "(1) a false promise or misrepresentation made in connection with the sale or advertisement of 'merchandise,' and (2) consequent and proximate injury resulting from the misrepresentation." The FAC alleges that the Plaintiff renewed his Policy "based on GEICO's failure to disclose to its customers the fact and amount of its excessive profits caused by COVID-19; the fact that its premiums are not based on an accurate assessment of risk during COVID-19; and the fact that its 'GEICO Giveback' program compares unfavorably with the refund programs of all or nearly all other major auto insurers." Geico argues all these alleged misrepresentations are immaterial. To the extent that the alleged fraud relates to Geico's profits, and whether its rates compared favorably with other insurers, Judge Humetewa finds that such alleged misrepresentations are immaterial. She holds that it cannot reasonably be claimed that a company commits fraud when it fails to tell consumers of its profits. This is not rationally related to the question of whether an individual would choose to buy an insurance policy. Likewise, a company that fails to tell consumers that they may get better prices elsewhere cannot be reasonably said to have committed fraud. Arizona maintains a competitive insurance market, which necessarily presumes consumers will compare prices among firms. However, if, as Plaintiff alleges, Geico represented that its Giveback program was "passing on savings" commensurate with the risk of driving during the pandemic, the Judge finds that such a representation is material to the decision to buy insurance. Geico argues that its statement that it was "passing on savings" is not false or deceptive because it actually instituted the Giveback program. But read in the light most favorable to the Plaintiff, the Judge holds that the statement implied that Geico was passing on all the savings accrued through the reduced driving. The Defendant also argues that, even assuming this statement is construed as deceiving, the Plaintiff has not alleged that he relied on it when deciding to renew his car insurance. However, the FAC does allege that Plaintiff renewed his policy "as a result of GEICO's deceptive statements and omissions." At this stage, and viewing the statement in the Plaintiff's favor, such an allegation suffices to show reliance. Therefore, the Judge will not dismiss Count III. d. Unjust Enrichment Count IV alleges if Geico is not liable for the other three Counts, Geico is liable for unjust enrichment as an alternative cause of action. To bring an unjust enrichment claim under Arizona law, a plaintiff must show: "(1) an enrichment, (2) an impoverishment, (3) a connection between the enrichment and impoverishment, (4) the absence of justification for the enrichment and impoverishment, and (5) the absence of a remedy at law." Where there is a specific contract which governs the relationship of the parties, the doctrine of unjust enrichment has no application." Geico argues an unjust enrichment claim may not be brought because of the Policy's contract governing the parties' relationship. In response, the Plaintiff argues that at the motion to dismiss phase, it is inappropriate to dismiss its unjust enrichment claim that is plead in the alternative. Judge Humetewa holds that the FAC does not allege facts giving rise to a plausible unjust enrichment claim. The Plaintiff plainly alleges he received insurance coverage in exchange for the payment he made to Geico. This constitutes a justification for Geico's enrichment. Although the FAC states "there is no justification for the enrichment or the impoverishment," this is a legal conclusion that the Court need not accept, especially given that there are no other specific factual allegations showing how the claim could be plausible. Because Count IV lacks supporting factual allegations, the Judge will dismiss it. e. Defendants GEICO Indemnity Company and GEICO General Insurance Co. Finally, Geico argues Defendants GEICO Indemnity Co. and GEICO General Insurance Co. should be dismissed from the action entirely because they have no contractual relationship with the Plaintiff. The Plaintiff argues that they are properly included in the action under the "juridical link" doctrine because the FAC alleges a common scheme among all three parties. Because the Plaintiff alleges fraud under the CFA, the Plaintiff must show what each Defendant did or did not do with particularity. The FAC alleges Defendants GEICO Indemnity Co. and GEICO General Insurance Co. are affiliated with each other and GEICO Casualty C. It also alleges they "jointly participated in and are jointly responsible for the unlawful conduct described in the FAC." Beyond these assertions, the FAC fails to describe the role that GEICO Indemnity Company and GEICO General Insurance Company played in the alleged fraud. As a result, Judge Humetewa cannot reasonably infer a common scheme among the parties and will, therefore, dismiss them from the action. Conclusion Judge Humetewa grants Geico's Motion to Dismiss in part. The only remaining claim is Count III for fraud under the CFA, and the only remaining Defendant is GEICO Casualty Co. Accordingly, the Defendants' Motion to Dismissis granted in part as described in the Order. The Clerk of Court will kindly dismiss Defendants GEICO Indemnity Co. and GEICO General Insurance Co. from the matter. A full-text copy of the Court's Aug. 13, 2021 Order is available at https://tinyurl.com/3cda4j2m from Leagle.com. GERBER PRODUCTS: Baby Food Contains Heavy Metals, Garces Suit Says ------------------------------------------------------------------ AILEEN GARCES, et al. individually, and on behalf of all others similarly situated v. GERBER PRODUCTS COMPANY, Case No. 1:21-cv-00902-LO-TCB (E.D. Va., Aug. 6, 2021) alleges Gerber for its negligent, reckless, and/or intentional practice of misrepresenting and failing to fully disclose the heavy metals or other ingredients that do not conform to the labels, packaging, or advertising of, or statements concerning the Defendant Gerber's products sold throughout the United States. The Plaintiffs bring this action on behalf of themselves and a proposed class of individuals that bought baby food sold by Gerber that was, unbeknownst to Plaintiffs and members of the Class and Subclasses (but known to Gerber), tainted with numerous toxic heavy metals. The Plaintiffs and members of the Class and Subclasses seek injunctive and monetary relief based on Gerber's alleged false, deceptive, and misleading business practices in violation of the consumer protection statutes of the home states of Plaintiffs and members of the Class and Subclasses. Parents' instinctive desire to protect and ensure the healthy development of their children is well-known. As such, the safety of baby food is of paramount importance, and is a material fact, to consumers (such as Plaintiffs and Class members). More specifically, given the negative effects of Toxic Heavy Metals (such as arsenic, lead, cadmium, and mercury) on child development, the presence of these substances in baby food is a material fact to consumers (such as Plaintiffs and members of the Class). Indeed, consumers -- such as Plaintiffs and members of the Class -- are unwilling to purchase baby food that contains elevated levels of Toxic Heavy Metals, says the suit. The Defendant knows that the safety of its brand of baby food (as a general matter) is a material fact to consumers. This is exemplified by the fact that Defendant's baby food products are marketed and labeled as lacking certain substances (e.g., BPA, GMOs) that consumers believe would be deleterious to the health of children, the suit added. Gerber manufactures, markets, advertises, labels, represents, warrants, distributes, and sells baby food products throughout the United States and describes itself as "[o]ne of the world's most trusted names in baby food." Gerber claims on its website that it has "among the strictest standards in the world. The Plaintiffs include EDELIN ALTUVE, JENNY ANDERSON, CARRIE ASHBOURNE, ASHLEE CAMPION, JESSICA CONNER, BRANDY DANIELS, APRIL GILLENS, JANDREA GLENN, ELIZABETH HALL, AMBER HOGAN, LASZLO KOVACS, CORI LAU, MICHELLE LYLES, SHALAYA MARTIN, CHRISTINA MARTINSON, MELISSA MEJIA, CHEY'NA MICCICHE, JULIA MILTON, ASHLEY MORGAN, MICHAEL MORROW, STACY MUSTO, CHRIS NALLEY, GLADYS OKOLO, QUEEN POUGH, CORTNEY POWELL, AMY PRONDZINSKI, JESSICA REED, SORAYA SANTOS, KIRA SPURGEON, LINDSEY TARLTON, LIDIA TILAHUN, JULIA VICE, DAMEN WALTON, JENNIFER WEISS, and JANICE WILSON. Gerber produces baby foods including Gerber Banana Sitter 2nd Foods; Gerber Sweet Potato Sitter 2nd Foods; Gerber Apple Strawberry Banana Sitter 2nd Foods; Gerber Apple Sitter 2nd Foods; Gerber Banana Blackberry Blueberry Sitter 2nd Foods; Gerber Pear Sitter 2nd Foods; Gerber Apple Banana with Oatmeal Sitter 2nd Foods; Gerber Banana Apple Pear Sitter 2nd Foods; Gerber Butternut Squash Sitter 2nd Foods; Gerber Banana Orange Medley Sitter 2nd Foods; Gerber Apple Blueberry Pouch Sitter 2nd Foods; Gerber Green Bean Sitter 2nd Foods; Gerber Banana Pear Zucchini Pouch Toddler 12+ Months; Gerber Carrot Sitter 2nd Foods; and Gerber Apple Blueberry Sitter 2nd Foods.[BN] The Plaintiffs are represented by: Francis J. Balint, Jr., Esq. Patricia N. Syverson, Esq. BONNETT FAIRBOURN FRIEDMAN & BALINT PC Joshua Gunnell House, Suite 4 4023 Chain Bridge Road Fairfax, VA 22030 Telephone: (602) 776-5903 Facsimile: (602) 274-1199 E-mail: fbalint@bffb.com psyverson@bffb.com - and - Thomas A. Zimmerman, Jr., Esq. Sharon A. Harris, Esq. Matthew C. De Re, Esq. Jeffrey D. Blake, Esq. ZIMMERMAN LAW OFFICES, P.C. 77 W. Washington Street, Suite 1220 Chicago, IL 60602 Telephone: (312) 440-0020 Facsimile: (312) 440-4180 E-mail: tom@attorneyzim.com sharon@attorneyzim.com matt@attorneyzim.com jeff@attorneyzim.com GERMAN AMERICAN BANCORP: Checking Account Practices Suit Ongoing ---------------------------------------------------------------- German American Bancorp Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a putative class action suit in Marion County, Indiana Superior Court challenging the Company's checking account practices associated with its assessment of overdraft fees for certain debit card transactions. In July 2020, the Company was named in a putative class action lawsuit filed in Marion County, Indiana Superior Court challenging the Company's checking account practices associated with its assessment of overdraft fees for certain debit card transactions. The relief sought by the plaintiff includes restitution, other monetary damages, and injunctive and declaratory relief. The plaintiff also seeks to have the case certified by the Court as a class action on behalf all citizens of Indiana who are checking account holders at German American Bank and who were assessed overdraft fees on certain debit card transactions. The Company believes the plaintiff's claims are unfounded and intends to defend against them. As such, the Company has filed a motion to dismiss the complaint. Before any ruling on the motion to dismiss, the plaintiff amended her complaint to include different account documents, but continues to maintain her claim. On May 3, 2021, the Company filed a motion to dismiss the plaintiff's amended complaint. All discovery has been stayed by the Court pending a ruling on any motion to dismiss. The parties will attempt to resolve the dispute at a mediation conference scheduled for August 25, 2021. German American said, "However, at this stage of the litigation, it is not possible for the Company's management to determine the probability of a material adverse outcome or reasonably estimate the amount of any potential loss." German American Bancorp Inc. is a multi-bank holding company. The Banks provide a wide range of retail and commercial banking, mortgage banking, trust and brokerage services, title insurance, and personal and corporate property and casualty insurance products. German American Bancorp operates in southwestern Indiana. The company is based in Jasper, Indiana. GOOGLE LLC: Jones Appeals Children's Online Privacy Suit Dismissal ------------------------------------------------------------------ Plaintiff Cara Jones, et al., filed an appeal from a court ruling entered in the lawsuit styled NICHOLE HUBBARD, as parent and guardian of C.H., a minor; individually and on behalf of all others similarly situated, Plaintiff v. GOOGLE LLC; YOUTUBE LLC; CARTOON NETWORK, INC.; CARTOON NETWORK STUDIOS, INC.; CHUCHU TV STUDIOS, COOKIESWIRLC; DREAMWORKS ANIMATION LLC; DREAMWORKS ANIMATION TELEVISION, LLC; HASBRO, INC.; HASBRO STUDIOS LLC; MATTEL, INC.; POCKETWATCH, INC.; REMKA, INC.; RTR PRODUCTION LLC; AND RFR ENTERTAINMENT, INC., Defendants, Case No. 5:19-cv-07016, in the U.S. District Court for the Northern District of California, San Jose. As previously reported in the Class Action Reporter, the lawsuit arises out of the Defendants' unlawful invasion of the right to privacy and reasonable expectation of privacy of millions of children under the age of 13 from July 1, 2013, through September 4, 2019. Plaintiff Nichole Hubbard is a natural person and is a resident and citizen of the State of California. The Plaintiff is the parent and legal guardian of C.H. The Plaintiff brought claims, on behalf of her child and for all other similarly-situated children under the age of thirteen injured by the Defendants' conduct, pursuant to California's and other states' common law right to be free from intrusion upon seclusion; pursuant to the California Unfair Competition Law, and, for her child and other California residents; pursuant to the right to privacy enumerated in the California Constitution; and for relief from Defendants' unjust enrichment at the expense of minor children. The Plaintiff's minor child, C.H., watched many of the monetized YouTube channels during the Class Period, including those owned by the Channel Owner Defendants. While C.H. viewed videos on the YouTube Platform, the Defendants unlawfully collected C.H.'s Personal Information, including persistent identifiers, and delivered targeted advertisements to C.H. intended to influence C.H.'s behavior, the Plaintiff alleged. The Defendants' actions violated the privacy rights and reasonable expectations of privacy of C.H. and other similarly-situated young children under thirteen, and constituted unfair and deceptive trade practices, the Plaintiff added. On September 4, 2019, the Federal Trade Commission and New York State Office of the Attorney General filed a Complaint for Permanent Injunction, Civil Penalties, and Other Equitable Relief against the Google Defendants, complaining of the Google Defendants' wrongful collection and misuse of minors' Personal Information. The Google Defendants entered into a Judgment on September 4, 2019, agreeing to pay $170 million as a civil penalty for their misconduct, but did not agree to immediately cease the misconduct and have publicly stated that they will continue their tracking practices for up to four more months, enabling them to collect and misuse Personal Information about millions of minors for continuing improper financial gain. Accordingly, the Plaintiff brought the action, and the claims for relief asserted, on behalf of C.H. and the Classes and Subclass of similarly-situated minors under the age of thirteen whose privacy rights have, like C.H.'s, been violated by the Defendants, for injunctive and/or equitable relief to stop the Defendants' unlawful practices and sequester their unlawfully obtained information, and for compensatory and punitive damages. The Plaintiffs now seek a review of the Court's Order dated July 1, 2021, granting Defendants' motion to dismiss with leave to amend. The appellate case is captioned as CARA JONES, as parent and guardian of E.J.,N.J.,A.J., and L.J., Minors; JUSTIN EFROS, as parent and guardian of J.A.E.,. and J.R.E., Minors; NICHOLE HUBBARD, plas parent and guardian of C.H., a minor; individually and on behalf of all others similarly situated; RENEE GILMORE, as parent and guardian of M.W., a minor; JAY GOODWIN, as parent and guardian of A.G., a minor; BOBBI DISHMAN, as parent and guardian of C.D., a minor; PAULA RIDENTI, as parent and guardian of R.A. and R.M.A., minors; C.H.; E. J.; N. J.; A. J.; L. J.; J.A.E.; J.R.E.; M. W.; A. G.; C. D., Plaintiffs-Appellants v. GOOGLE LLC; YOUTUBE, LLC; MATTEL, INC.; DREAMWORKS ANIMATION LLC; HASBRO, INC.; HASBRO STUDIOS, LLC; THE CARTOON NETWORK, INC.; CARTOON NETWORK STUDIOS, INC.; POCKETWATCH, INC.; REMKA, INC.; RTR PRODUCTION, LLC; RFR ENTERTAINMENT, INC., Defendants-Appellees, Case No. 21-16281, in the United States Court of Appeals for the Ninth Circuit, filed on August 5, 2021. The parties shall meet the following time schedule: -- Appellants' Mediation Questionnaire was due August 12, 2021; -- Transcript shall be ordered by September 2, 2021; -- Transcript shall be filed by October 4, 2021; -- Appellants' opening brief and excerpts of record shall be served and filed on November 12, 2021; -- Appellees' answering brief and excerpts of record shall be served and filed on December 13, 2021; and -- The optional appellants' reply brief shall be filed and served within 21 days of service of the appellees' brief. Failure of the appellants to comply with the Time Schedule Order will result in automatic dismissal of the appeal.[BN] GOVERNMENT EMPLOYEES: Farris Files Suit in N.D. Texas ----------------------------------------------------- A class action lawsuit has been filed against Government Employees Insurance Company, et al. The case is styled as Sonny Farris, Alycia Farris, on behalf of themselves and all others similarly situated v. Government Employees Insurance Company d/b/a GEICO, GEICO County Mutual Insurance Company, Case No. 3:21-cv-01975-M (N.D. Tex., Aug. 24, 2021). The nature of suit is stated as Insurance Contract. The Government Employees Insurance Company -- https://www.geico.com/ -- is an American auto insurance company with headquarters in Chevy Chase, Maryland.[BN] The Plaintiffs are represented by: Randall Keith Pulliam, Esq. CARNEY BATES & PULLIAM, PLLC 519 West Seventh Street Little Rock, AR 72201 Phone: (501) 312-8500 Fax: (501) 315-8505 Email: rpulliam@cbplaw.com GREEN DOT: Koffsmon Putative Class Suit Underway in California -------------------------------------------------------------- Green Dot Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend Koffsmon v. Green Dot Corp., et al., No. 19-cv-10701-DDP-E, in the United States District Court for the Central District of California. On December 18, 2019, an alleged class action entitled Koffsmon v. Green Dot Corp., et al., No. 19-cv-10701-DDP-E, was filed in the United States District Court for the Central District of California, against the company and two of its former officers. The suit asserts purported claims under Sections 10(b) and 20(a) of the Exchange Act for allegedly misleading statements regarding the company's business strategy. Plaintiff alleges that defendants made statements that were misleading because they allegedly failed to disclose details regarding the company's customer acquisition strategy and its impact on its financial performance. The suit is purportedly brought on behalf of purchasers of our securities between May 9, 2018 and November 7, 2019, and seeks compensatory damages, fees and costs. On February 18, 2020, a shareholder derivative suit and securities class action entitled Hellman v. Streit, et al, No. 20-cv-01572-SVW-PVC was filed in United States District Court for the Central District of California, against the company and certain of its officers and directors. The suit avers purported breach of fiduciary duty and unjust enrichment claims, as well as claims under Sections 10(b), 14(a) and 20(a) of the Exchange Act, on the basis of the same wrongdoing alleged in the first lawsuit described above. The suit does not define the purported class allegedly damaged. These cases have been related. Green Dot said,, "We have not yet responded to the complaints in these matters. Due to the inherent uncertainties of litigation, we cannot accurately predict the ultimate outcome of this matter. We are unable at this time to determine whether the outcome of the litigation would have a material impact on our results of operations, financial condition or cash flows." No further updates were provided in the Company's SEC report. Green Dot Corporation is a provider of reloadable prepaid debit cards and cash reload processing services in the United States. It is also a leader in mobile technology and mobile banking with its GoBank mobile checking account. The company is based in Pasadena, California. HANOVER INSURANCE: T&L Catering Appeals Judgment in Insurance Suit ------------------------------------------------------------------ Plaintiff T&L Catering Inc. filed an appeal from a court ruling entered in the lawsuit styled T&L CATERING, INC., Plaintiff v. THE HANOVER INSURANCE GROUP, INC. and CITIZENS INSURANCE COMPANY OF AMERICA, Defendants, Case No. 3:20-cv-07934, in the United States District Court for the District of New Jersey. As reported in the Class Action Reporter on July 29, 2021, Judge Freda L. Wolfson of the U.S. District Court for the District of New Jersey granted Citizens' Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff T&L Catering filed the insurance coverage putative class action seeking coverage from Defendants Hanover and Citizens for losses sustained as a result of the 2019 novel coronavirus ("COVID-19") pandemic. The Plaintiff is a catering business located in North Plainfield, New Jersey. Citizens is a subsidiary of Hanover that is licensed to issue insurance policies in New Jersey. Citizens issued Policy number ZBY 8777623 09 to the Plaintiff for the period of July 20, 2019 through July 20, 2020. The Policy issued to Plaintiff by Citizens was an all-risk commercial property policy that covers loss or damage from all risks except those expressly excluded. The Policy also contains an endorsement form, titled "Exclusion of Loss Due to Virus or Bacteria," which applies to all coverages provided by the Policy. The Virus Exclusion states, "we will not pay for loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease." On March 11, 2020, the World Health Organization declared COVID- 19 a worldwide pandemic. On March 13, 2020, the federal government declared the COVID-19 pandemic to be a national emergency. The Center for Disease Control ("CDC") recommended safety measures such as staying home and refraining from going to public places where people gather. Following the CDC recommendations, many state governments, including New Jersey, executed closure orders temporarily suspending in-person, non-essential business operations, including those of restaurants. The Plaintiff was forced to close its business, except for take-out service, in order to comply with New Jersey's Closure Orders. Subsequently, the Plaintiff submitted a claim for business interruption losses to Citizens, but Citizens denied its claim. In response, the Plaintiff, on behalf of itself and all others similarly situated, brought a class action suit against the Defendants seeking (1) a declaratory judgment finding that the Defendants are liable to the Plaintiffs for losses incurred as a result of the COVID-19 pandemic and the corresponding civil authority orders, and (2) damages related to the Defendants' contractual breach of numerous insurance policies of the putative class members, including the Plaintiff's Policy, when the Defendants failed to compensate the Plaintiff and others similarly situated for their losses. In its Complaint, the Plaintiff alleges that it and others similarly situated suffered losses and damages because they were unable to use their insured properties as intended. It also asserts that those losses and damages were proximately caused by the precautionary measures taken to prevent the spread of COVID-19, not by the COVID-19 virus itself. The Motion for Judgment on the Pleadings followed. Citizens argues that (1) the Plaintiff did not sustain a direct physical loss of, or damage to, its insured premises, (2) the Plaintiff failed to state a claim under the civil authority provision of the Policy, and (3) the Virus Exclusion bars coverage for all losses caused by COVID-19. In its Opposition, the Plaintiff argues that (1) the Virus Exclusion does not bar its claim for relief under the Policy, and (2) the language of the Policy is ambiguous and should be construed in favor of the Plaintiff. The Plaintiff now seeks a review of the order entered by Judge Wolfson granting Citizens' Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). The appellate case is captioned as T&L Catering Inc. v. Hanover Insurance Group Inc, et al., Case No. 21-2460, in the United States Court of Appeals for the Third Circuit, filed on August 5, 2021.[BN] Plaintiff-Appellant T&L CATERING INC, on behalf of itself and all others similarly situated, is represented by: James E. Cecchi, Esq. Lindsey H. Taylor, Esq. CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO 5 Becker Farm Road Roseland, NJ 07068 Telephone: (973) 994-1700 E-mail: jcecchi@carellabyrne.com Defendants-Appellees HANOVER INSURANCE GROUP INC. and CITIZENS INSURANCE CO. OF AMERICA are represented by: Jeremiah L. O'Leary, Esq. Jonathan M. Zagha, Esq. FINAZZO COSSOLINI O'LEARY MEOLA & HAGER 67 East Park Place, Suite 901 Morristown, NJ 07960 Telephone: (973) 343-4960 E-mail: jeremiah.oleary@finazzolaw.com jonathan.zagha@finazzolaw.com IAC/INTERACTIVECORP: Bid to Dismiss Consolidated Class Suit Pending ------------------------------------------------------------------- IAC/InterActiveCorp said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss filed in the consolidated class action suit entitled, In re Match Group, Inc. Derivative Litigation, No. 2020-0505, is pending. On June 24, 2020, a shareholder class action and derivative lawsuit was filed in Delaware state court against then IAC/InterActiveCorp (now Match Group, Inc.), then IAC Holdings, Inc. (now IAC/InterActiveCorp), IAC's Chairman and Senior Executive, Barry Diller, former Match Group (as a nominal defendant only), and the ten members of former Match Group's board of directors at the time of the MTCH Separation, challenging, on behalf of a putative class of then Match Group public shareholders, the agreed-upon terms of the MTCH Separation. See David Newman v. IAC/InterActiveCorp et al., No. 2020-0505 (Delaware Chancery Court). The gravamen of the complaint is that the terms of the MTCH Separation are unfair to former Match Group and unduly beneficial to IAC as a result of undue influence by IAC and Mr. Diller over the then Match Group directors who unanimously approved the transaction. The complaint asserted direct and derivative claims for: (i) breach of fiduciary duty against IAC and Mr. Diller as former controlling shareholders of Match Group, (ii) breach of fiduciary duty against the Match Group directors who unanimously approved the MTCH Separation, (iii) breach of contract (i.e., a provision of former Match Group's charter), (iv) breach of the implied covenant of good faith and fair dealing, and (v) tortious interference with contract against IAC. The complaint sought various declarations and damages in an unspecified amount. On September 24, 2020, the defendants filed motions to dismiss the complaint. On January 8, 2021, instead of responding to the motions to dismiss, the plaintiff, joined by another plaintiff, Boilermakers National Annuity Trust, filed an amended complaint. In addition, on January 7, 2021, another complaint challenging the MTCH Separation was filed against substantially the same defendants in the same court. Construction Industry & Laborers Joint Pension Trust for Southern Nevada Plan A v. IAC/InterActiveCorp et al. (Delaware Chancery Court). The two cases have been consolidated under the caption In re Match Group, Inc. Derivative Litigation, No. 2020-0505. On March 15, 2021, the court issued an order appointing Construction Industry and Laborers Joint Pension Trust for Southern Nevada Plan A as lead plaintiff in the litigation and directing it to file a consolidated complaint by April 14, 2021, and on that date the lead plaintiff filed the consolidated complaint. On June 22, 2021, the defendants filed motions to dismiss the consolidated complaint. IAC believes that the allegations in this litigation are without merit and will continue to defend vigorously against them. IAC/InterActiveCorp, together with its subsidiaries, operates as a media and Internet company in the United States and internationally. It operates through Match Group, ANGI Homeservices, Video, Applications, and Publishing segments. IAC/InterActiveCorp was founded in 1986 and is headquartered in New York, New York. IAC/INTERACTIVECORP: Parties in Drulias Agree to Discontinue Suit ----------------------------------------------------------------- IAC/InterActiveCorp said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the court in Dean Drulias v. Joseph Levin et al., No. 650504/2021, entered an agreed stipulation and order discontinuing the action without prejudice as to the plaintiff and the putative IAC shareholder class. On January 22, 2021, a putative shareholder class action was filed in New York state court against IAC and the members of IAC's board of directors. Dean Drulias v. Joseph Levin et al., No. 650504/2021 (Supreme Court, New York County). The gravamen of the complaint was that IAC’s proposed Spin-off was being driven by IAC's controlling shareholder, Chairman and Senior Executive, Barry Diller, allegedly in order to: (i) generate additional cash for IAC to invest in the gaming industry, (ii) decrease IAC's stock price to facilitate additional share purchases by Mr. Diller and (iii) generate additional cash for Mr. Diller without diluting his controlling interest in IAC. The complaint asserted claims under Delaware law against IAC's board of directors for breach of fiduciary duty on account of its approval of the Spin-off and against IAC and its board of directors for their respective failures to include certain allegedly material information in the Company's proxy materials related to the proposed transaction. The complaint sought damages in an unspecified amount, as well as an order requiring the Company to include additional disclosures in the proxy materials related to the proposed transaction. On March 22, 2021, the defendants filed a motion to dismiss the complaint and to stay discovery pending resolution of the motion. On April 13, 2021, the plaintiff filed an amended complaint. On April 15, 2021, the plaintiff filed a motion for a preliminary injunction to stop the IAC stockholder vote on the Spin-off from taking place as scheduled; the defendants opposed the motion. On April 23, 2021, the court issued a decision and order denying the motion. On May 24, 2021, the court entered an agreed stipulation and order discontinuing the action without prejudice as to the plaintiff and the putative IAC shareholder class. IAC/InterActiveCorp, together with its subsidiaries, operates as a media and Internet company in the United States and internationally. It operates through Match Group, ANGI Homeservices, Video, Applications, and Publishing segments. IAC/InterActiveCorp was founded in 1986 and is headquartered in New York, New York. JONES FINANCIAL: Anderson Putative Class Suit Underway ------------------------------------------------------ The Jones Financial Companies, L.L.L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 25, 2021, that Edward D. Jones & Co., L.P. continues to defend a putative class action suit entitled, Anderson, et al. v. Edward D. Jones & Co., L.P., et al. On March 30, 2018, Edward Jones and its affiliated entities and individuals were named as defendants in a putative class action (Anderson, et al. v. Edward D. Jones & Co., L.P., et al.) filed in the U.S. District Court for the Eastern District of California. The lawsuit was brought under the Securities Act of 1933, as amended, and the Exchange Act, as well as Missouri and California law and alleges that the defendants inappropriately transitioned client assets from commission-based accounts to fee-based programs. The plaintiffs requested declaratory, equitable, and exemplary relief, and compensatory damages. On July 9, 2019, the district court entered an order dismissing the lawsuit in its entirety without prejudice. On July 29, 2019, the plaintiffs filed a second amended complaint, which eliminated certain affiliated entities and individuals as defendants, withdrew the claims under the Securities Act, added claims under the Investment Advisers Act of 1940, as amended, and certain additional state law claims, and reasserted the remaining claims with modified allegations. The defendants filed a motion to dismiss, the plaintiffs subsequently withdrew their Investment Advisers Act claims, and on November 12, 2019, the district court granted defendants' motion to dismiss. The plaintiffs appealed the district court's dismissal of certain of their state law claims but did not appeal the dismissal of the remaining claims. On March 4, 2021, the U.S. Court of Appeals for the Ninth Circuit reversed the district court's decision, holding the district court has jurisdiction over the state law claims that were the subject of the plaintiffs' appeal, and remanded the case to the district court for further proceedings on those claims. On May 14, 2021, the Ninth Circuit panel denied defendants' April 19, 2021 petition for panel rehearing and rehearing en banc. On May 20, 2021, defendants filed a motion to stay further proceedings pending defendants' filing of a petition for certiorari with the U.S. Supreme Court, which the Ninth Circuit granted on May 21, 2021. Edward Jones and its affiliated entities and individuals deny the plaintiffs' allegations and intend to continue to vigorously defend this lawsuit. The Jones Financial Companies, L.L.L.P., through its subsidiary, Edward D. Jones & Co., L.P., operates as a registered broker-dealer. The Jones Financial Companies, L.L.L.P. was founded in 1871 and is based in Des Peres, Missouri. JONES FINANCIAL: Bland FLSA-Related Class Suit Underway ------------------------------------------------------- The Jones Financial Companies, L.L.L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 25, 2021, that the company continues to defend a class action suit entitled, Bland v. Edward D. Jones & Co., L.P., et al. On March 13, 2018, Jones Financial Companies, L.L.L.P. (JFC) and Edward Jones were named as defendants in a purported collective and class action lawsuit (Bland, et al. v. Edward D. Jones & Co., L.P, et al.) filed in the U.S. District Court for the Northern District of Illinois by four former financial advisors. The lawsuit was brought under the Fair Labor Standards Act (FLSA) as well as Missouri and Illinois law and alleges that the defendants unlawfully attempted to recoup training costs from departing financial advisors and failed to pay all overtime owed to financial advisor trainees among other claims. The lawsuit seeks declaratory and injunctive relief, compensatory and liquidated damages. On March 19, 2019, the court entered an order granting the defendants' motion to dismiss all claims, but permitting the plaintiffs to amend and re-file certain of their claims. Plaintiffs filed an amended complaint on May 3, 2019. On March 30, 2020, the court partially granted the defendants' renewed motion to dismiss the amended complaint and dismissed seven of the ten causes of action it purported to state. The court's order eliminated from the case any claims that rely upon the firm's contractual right to recoup training costs as well as related claims for declaratory relief. It also dismissed various state law claims. JFC and Edward Jones deny the allegations in the remaining counts and intend to vigorously defend against the allegations in this lawsuit. No further updates were provided in the Company's SEC report. The Jones Financial Companies, L.L.L.P., through its subsidiary, Edward D. Jones & Co., L.P., operates as a registered broker-dealer. The Jones Financial Companies, L.L.L.P. was founded in 1871 and is based in Des Peres, Missouri. KANAWHA COUNTY, WV: Disabled Students Win Class Certification Bid ----------------------------------------------------------------- In the class action lawsuit captioned as G.T., by his parents Michelle and Jamie T. On behalf of himself and all similarly situated individuals, et al., v. THE BOARD OF EDUCATION OF THE COUNTY OF KANAWHA, Case No. 2:20-cv-00057 (S.D.W.Va.), the Hon. Judge Irene C. Berber entered an order: 1. granting in part and denying in part the Defendant's motion to strike; 2. denying the Defendant's motion to strike Dr. Elliot's supplemental declaration and supplemental report; 3. granting the Plaintiffs' motion for class certification; 4. certifying a class of: "All Kanawha County Schools students with disabilities who need behavior supports and have experienced disciplinary removals from any classroom;" and 5. appointing the Plaintiffs, including Lydia C. Milnes, Blaire L. Malkin, Lori Waller, Robin Hulshizer, Kirstin Scheffler, Karen Klass, Jaime Zucker, Ira A. Burnim, Lewis Bossing, and Shira Wakschlag, together with their respective firms and organizations, as class counsel. The Plaintiffs, G.T., K.M., and The Arc of West Virginia assert that Kanawha County Schools (KCS) does not provide adequate behavioral supports to students with disabilities who require such supports to succeed in the classroom. G.T. and K.M. are elementary school students in Kanawha County with Individualized Education Plans (IEPs). The Plaintiffs allege violations of the Individuals with Disabilities Education Act (IDEA), the Rehabilitation Act, the Americans with Disabilities Act, and of the West Virginia Human Rights Act. A copy of the Court's order dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3kubPOj at no extra charge.[CC] KANZHUN LTD: Skadden Enters Appearance in Securities Class Action ----------------------------------------------------------------- Law.com reports that Scott D. Musoff of Skadden, Arps, Slate, Meagher & Flom has entered an appearance for Chinese online recruitment servicer Kanzhun Ltd. in a pending securities class action concerning its Boss Shipin platform's cybersecurity risks. The complaint was filed July 12 in New Jersey District Court by The Rosen Law Firm. The case, assigned to U.S. District Judge Kevin McNulty, is 2:21-cv-13543, Bell v. Kanzhun Ltd. [GN] KELLOGG CO: Settlement in Packaging Statement Suit Gets Initial Nod ------------------------------------------------------------------- Kellogg Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the court entered an order granting preliminary approval of the settlement in the class action related to packaging statements in the company's products. In 2016, a class action complaint was filed against Kellogg in the Northern District of California relating to statements made on packaging for certain products. In August 2019, the Court ruled in favor of the plaintiff regarding certain statements made on the Company's products and ordered the parties to conduct settlement discussions related to all matters in dispute. In October 2019, the plaintiff filed a motion to the Court to approve a settlement between Kellogg and the class. In 2019, the Company concluded that the contingency related to the unfavorable ruling was probable and estimable, resulting in a liability being recorded. In January 2021, the parties reached a new settlement that was within the amount of the contingency the Company recorded in December 2019. In June 2021, the court entered an order granting preliminary approval of the settlement. Kellogg Company manufactures and markets ready-to-eat cereal and other convenience foods. The Company's products include cereals, cookies, crackers, toaster pastries, cereal bars, fruit snacks, frozen waffles, and veggie foods. Kellogg markets its products in the United States, Canada, and other countries throughout the world. The company is based in Battle Creek, Michigan. KONINKLIJKE PHILIPS: Devices Contain PE-PUR Foam, Bellotti Says --------------------------------------------------------------- PETE BELLOTTI, on behalf of himself and all others similarly situated v. KONINKLIJKE PHILIPS N.V.; PHILIPS NORTH AMERICA LLC; and PHILIPS RS NORTH AMERICA LLC, Case No. 2:21-cv-01045-MRH (W.D. Pa., Aug. 5, 2021) is a class action complaint on behalf of himself and a proposed class of purchasers and users of Continuous Positive Airway Pressure (CPAP) and Bi-Level Positive Airway Pressure (Bi-Level PAP) devices and mechanical ventilators manufactured by Philips, which contain polyester-based polyurethane sound abatement foam ("PE-PUR Foam"). On April 26, 2021, Philips made a public announcement disclosing it had determined there were risks that the PE-PUR Foam used in certain CPAP, Bi-Level PAP, and mechanical ventilator devices it manufactured may degrade or off-gas under certain circumstances. On June 14, 2021, Royal Philips issued a recall in the United States of its CPAP, Bi-Level PAP, and mechanical ventilator devices containing PE-PUR Foam, because Philips had determined that (a) the PE-PUR Foam was at risk for degradation into particles that may enter the devices' pathway and be ingested or inhaled by users, and (b) the PE-PUR Foam may off-gas certain chemicals during operation. Philips further disclosed in its Recall Notice that "these issues can result in serious injury which can be life-threatening, cause permanent impairment, and/or require medical intervention to preclude permanent impairment," says the suit. According to the complaint, Philips has disclosed that the absence of visible particles in the devices does not mean that PE-PUR Foam breakdown has not already begun. Philips reported that lab analysis of the degraded foam reveals the presence of harmful chemicals, including: Toluene Diamine ("TDA"), Toluene Diisocyanate ("TDI"), and Diethylene Glycol ("DEG"). Prior to issuing the Recall Notice, Philips received complaints regarding the presence of black debris/particles within the airpath circuit of its devices (extending from the device outlet, humidifier, tubing, and mask). Philips also received reports of headaches, upper airway irritation, cough, chest pressure and sinus infection from users of these devices, added the suit. Philips recommended that patients using the recalled CPAP and Bi-Level PAP devices immediately discontinue using their devices and that patients using the recalled ventilators for life-sustaining therapy consult with their physicians regarding alternative ventilator options. The Plaintiff seeks to recover damages based on, inter alia, Philips' alleged breach of express warranty, breach of implied warranties, misrepresentations, omissions, and breaches of state consumer protection laws in connection with its manufacture, marketing and sales of devices containing PE-PUR Foam on behalf of themselves and the proposed Class Members. In addition, Plaintiffs seek medical monitoring damages for users of Philips' devices identified in the Recall Notice, who are at risk of suffering from serious injury, including irritation (skin, eye, and respiratory tract), inflammatory response, headache, asthma, adverse effects to other organs (e.g., kidneys and liver) and toxic carcinogenic affect. The Plaintiff purchased and used the CPAP devices for personal use as they related to a sleep apnea diagnosis. All Plaintiffs were harmed and suffered damages, the suit contends. Royal Philips is a Dutch multinational corporation with its principal place of business located in Amsterdam, Netherlands. Royal Philips is the parent company of the Philips Group of healthcare technology businesses, including Connected Care businesses focusing on Sleep & Respiratory Care. Royal Philips holds directly or indirectly 100% of its subsidiaries Philips NA and Philips RS. Royal Philips controls Philips NA and Philips RS in the manufacturing, selling, distributing, and supplying of the recalled CPAP, Bi-Level PAP, and mechanical ventilator devices. Philips NA is a Delaware corporation with its principal place of business located at 222 Jacobs Street, Floor 3, Cambridge, Massachusetts 02141. Philips NA is a wholly-owned subsidiary of Royal Philips.[BN] The Plaintiffs are represented by: Gary F. Lynch, Esq. Edwin J. Kilpela, Jr., Esq. Elizabeth Pollock-Avery, Esq. CARLSON LYNCH LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Telephone: 412-322-9243 E-mail: glynch@carlsonlynch.com ekilpela@carlsonlynch.com eavery@carlsonlynch.com - and - Jonathan M. Jagher, Esq. D. Patrick Huyett, Esq. FREED KANNER LONDON & MILLEN LLC 923 Fayette Street Conshohocken, PA 19428 Telphone: (610) 234-6486 E-mail: jjagher@fklmlaw.com phuyett@fklmlaw.com - and - William E. Hoese, Esq. Craig W. Hillwig, Esq. Aarthi Manohar, Esq. KOHN, SWIFT & GRAF, P.C. 1600 Market Street, Suite 2500 Philadelphia, PA 19103 Telephone: (215) 238-1700 E-mail: whoese@kohnswift.com chillwig@kohnswift.com amanohar@kohnswift.com KONINKLIJKE PHILIPS: Levi & Korsinsky Reminds of Oct. 15 Deadline ----------------------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of Koninklijke Philips N.V. ("Philips") (NYSE: PHG) between June 11, 2016 and July 23, 2021. You are hereby notified that a securities class action lawsuit has been commenced in the United States District Court for the Eastern District of New York. To get more information go to: https://www.zlk.com/pslra-1/koninklijke-philips-n-v-loss-submission-form?prid=18626&wire=5 or contact Joseph E. Levi, Esq. either via email at jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is no cost or obligation to you. Koninklijke Philips N.V. NEWS - PHG NEWS CASE DETAILS: According to the filed complaint: (i) Philips had deficient product manufacturing controls or procedures; (ii) as a result, the Company's Bi-Level PAP and CPAP devices and mechanical ventilators were manufactured using hazardous materials; (iii) accordingly, the Company's sales revenues from the foregoing products were unsustainable; (iv) the foregoing also subjected the Company to a substantial risk of a product recall, in addition to potential legal and/or regulatory action; and (v) as a result, the Company's public statements were materially false and misleading at all relevant times. WHAT THIS MEANS TO SHAREHOLDERS: If you suffered a loss in Philips, you have until October 15, 2021 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. NO COST TO YOU: If you purchased Philips securities between June 11, 2016 and July 23, 2021, you may be entitled to compensation without payment of any out-of-pocket costs or fees. PROTECT YOUR FINANCIAL INTERESTS: Complete this brief submission form https://www.zlk.com/pslra-1/koninklijke-philips-n-v-loss-submission-form?prid=18626&wire=5 or call 212-363-7500 to discuss the case with Joseph E. Levi, Esq. WHY LEVI & KORSINSKY: Levi & Korsinsky have a proven track record of winning cases worth hundreds of millions of dollars for shareholders over a 20-year period. We represent and fight for shareholders who have been wronged by corporations. Levi & Korsinsky is a nationally recognized firm with offices in New York, California, Connecticut, and Washington, D.C. The Firm's Founding Partners, Joseph Levi and Eduard Korsinsky, have been representing shareholders and institutional clients for almost 20 years and have achieved remarkable results for clients in the U.S. and internationally. The firm, with more than 80 employees, is committed to fostering, cultivating and preserving a culture of diversity, equity and inclusion for employees and those that we represent. Our attorneys have extensive expertise representing investors in securities litigation with a track record of recovering hundreds of millions of dollars in cases. Levi & Korsinsky was ranked in Institutional Shareholder Services' ("ISS") SCAS Top 50 Report for 7 years in a row as a top securities litigation firm in the United States. The SCAS Top 50 Report identifies the top plaintiffs' securities law firms in the country, and year after year, ISS has recognized Levi & Korsinsky as a leading firm in the area of securities class action litigation. CONTACT: Levi & Korsinsky, LLP Joseph E. Levi, Esq. Ed Korsinsky, Esq. 55 Broadway, 10th Floor New York, NY 10006 jlevi@levikorsinsky.com Tel: (212) 363-7500 Fax: (212) 363-7171 www.zlk.com [GN] KONINKLIJKE PHILLIPS: Hancock Files Suit in S.D. Mississippi ------------------------------------------------------------ A class action lawsuit has been filed against Koninklijke Philips N.V., et al. The case is styled as Kimberly M. Hancock, on behalf of herself and all other similarly situated v. Koninklijke Philips N.V., Philips North America LLC, Philips RS North America LLC, Case No. 2:21-cv-00113-KS-MTP (S.D. Miss., Aug. 24, 2021). The nature of suit is stated as Contract Product Liability. Koninklijke Philips N.V. -- https://www.philips.com/global -- is a Dutch multinational conglomerate corporation that was founded in Eindhoven.[BN] The Plaintiff is represented by: John M. Deakle, Esq. DEAKLE-JOHNSON LAW FIRM P.O. Box 2072 Hattiesburg, MS 39403 Phone: (601) 544-0631 Fax: (601) 544-0666 Email: jmd@deaklelawfirm.com KOPLAN WELSH: Hoffenkamp Files TCPA Suit in N.D. Illinois --------------------------------------------------------- A class action lawsuit has been filed against Koplan Welsh and Associates. The case is styled as David J. Hoffenkamp, individually, and on behalf of all others similarly situated v. Koplan Welsh and Associates, Case No. 1:21-cv-04523 (N.D. Ill., Aug. 24, 2021). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Koplan Welsh and Associates -- https://www.koplanwelshandassociates.com/ -- in Las Vegas provides asset recovery services to its clients.[BN] The Plaintiff is represented by: Jennifer Ann McLaughlin, Esq. Marwan R. Daher, Esq. Mohammed Omar Badwan, Esq. Omar Tayseer Sulaiman, Esq. Victor Thomas Metroff, Esq. SULAIMAN LAW GROUP, LTD. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Phone: (331) 307-7646 Fax: (630) 575-8188 Email: jennifer.a.filipiak@gmail.com mdaher@sulaimanlaw.com mbadwan@sulaimanlaw.com osulaiman@sulaimanlaw.com vmetroff@sulaimanlaw.com LIBERTY BROADBAND: Settlement Hearing HFPF Suit Set for Oct. 5 -------------------------------------------------------------- Liberty Broadband Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the court in Hollywood Firefighters' Pension Fund, et al. v. GCI Liberty, Inc., et al., Case No. 2020-0880, set a settlement hearing for October 5, 2021, to determine whether to permanently certify the class, whether the proposed settlement is fair, reasonable, and adequate to the settlement class, and whether to enter a judgment dismissing the action with prejudice, among other things. On October 9, 2020, a putative class action complaint was filed by two purported GCI Liberty stockholders in the Court of Chancery of the State of Delaware under the caption Hollywood Firefighters' Pension Fund, et al. v. GCI Liberty, Inc., et al., Case No. 2020-0880. A new version of the complaint was filed on October 11, 2020. The complaint named as defendants GCI Liberty, as well as the members of the GCI Liberty board of directors. The complaint alleged, among other things, that Mr. Gregory B. Maffei, a director and the President and Chief Executive Officer of Liberty Broadband and, prior to the Combination, GCI Liberty, and Mr. John C. Malone, the Chairman of the Board of Directors of Liberty Broadband and, prior to the Combination, GCI Liberty, in their purported capacities as controlling stockholders and directors of GCI Liberty, and the other directors of GCI Liberty, breached their fiduciary duties by approving the Combination. The complaint also alleged that various prior and current relationships among members of the GCI Liberty special committee, Mr. Malone and Mr. Maffei rendered the members of the GCI Liberty special committee not independent. The complaint sought certification of a class action, declarations that Messrs. Maffei and Malone and the other directors of GCI Liberty breached their fiduciary duties and the recovery of damages and other relief. On December 23, 2020, the plaintiffs filed a Second Amended Complaint, which, among other things, included a new count of breach of fiduciary duty against Mr. Maffei and Mr. Gregg Engles, the other former member of the GCI Liberty special committee, and new allegations that the price of GCI Liberty was depressed as a result of statements and omissions by Mr. Maffei in November of 2019. During the first quarter for 2021, the parties were conducting discovery with the trial scheduled for November 2021. We believed the lawsuit was without merit. During March 2021 and in advance of the expenditure of significant time and costs to conduct the depositions proposed to have been taken in this action, the parties began negotiations with the class of plaintiffs for a potential settlement of this action. On May 5, 2021, the plaintiffs (on behalf of themselves and other members of a proposed settlement class) and defendants entered into an agreement in principle to settle the litigation pursuant to which the parties agreed that the plaintiffs will dismiss their claims with prejudice, with customary releases, in return for a settlement payment of $110 million to be paid by Merger LLC (as successor-by-merger to GCI Liberty, Inc.) and/or insurers for the defendants and for GCI Liberty. On June 17, 2021, the parties filed a Stipulation and Agreement of Settlement, Compromise, and Release. On June 30, 2021, the Court preliminarily certified, solely for purposes of effectuating the proposed settlement, the action as a non-opt out class action on behalf of a settlement class consisting of all holders of GCI Liberty Series A common stock as of December 18, 2020. The court set a settlement hearing for October 5, 2021, to determine whether to permanently certify the class, whether the proposed settlement is fair, reasonable, and adequate to the settlement class, and whether to enter a judgment dismissing the action with prejudice, among other things. Englewood, Colorado-based Liberty Broadband Corporation a cable operator, provides video, Internet, and voice services to residential and commercial customers in the United States. It operates through Skyhook and Charter segments. The Skyhook segment offers a Wi-Fi-based location platform that provides positioning technology and contextual location intelligence solutions. The Charter segment offers subscription-based video services, including video on demand, high definition television, digital video recorder, and digital set-top box services; and voice services, such as local and long distance calling, voicemail, call waiting, caller ID, call forwarding, and other services, as well as international calling services. LIFE LINE: Must Respond to Class Cert. Bid by September 13 ---------------------------------------------------------- In the class action lawsuit captioned as Laird et al., v. Life Line Screening of America, Ltd., Case No. 5:21-cv-01244 (N.D. Ohio), the Hon. Judge Sara Lioi entered an order granting extension of time to file response/reply to motion Order and granting the defendant's unopposed motion to extend the time to respond to plaintiffs motion for class certification until September 13, 2021. The suit alleges violation of Fair Labor Standards Act. Life Line Screening of America Ltd. provides health screening services.[CC] LIVE VENTURES: Hagens Berman Reminds of October 12 Deadline ----------------------------------------------------------- Hagens Berman urges Live Ventures Incorporated (NASDAQ: LIVE) investors with significant losses to submit your losses now. Class Period: Dec. 28, 2016 – Aug. 3, 2021 Lead Plaintiff Deadline: Oct. 12, 2021 Visit: www.hbsslaw.com/investor-fraud/LIVE Contact An Attorney Now: LIVE@hbsslaw.com 844-916-0895 Live Ventures Incorporated (LIVE) Securities Fraud Class Action: The Complaint alleges that Defendants misrepresented Live's financial performance, promotional activities, insider sales and executive compensation. Specifically, Defendants (1) inflated Live's earnings per share for FY 2016 by more than 40% by using an artificially low share count; (2) overstated Live's pre-tax income for FY 2016 by 20% by prematurely recognizing income from future quarters; (3) misrepresented that Live's acquisition of ApplianceSmart closed during Q1 2017 so that the Company could appear profitable; and (4) concealed that between FY 2016 - FY 2018, Live's CEO received 94% more in compensation than reported. On Aug. 3, 2021, the truth emerged when the SEC charged Live, its CEO, its CFO, and others with securities fraud. The SEC's complaint alleges that Live and its CEO, Jon Isaac, recorded income from a backdated contract to boost Live's pre-tax income for FY 2016 by 20%. Live and Isaac also allegedly overstated earnings per share by 40% by improperly understating Live's outstanding share count. In addition, the SEC claims Isaac hired a stock promoter to boost interest in Live. Finally, the SEC alleges Live Ventures misrepresented the date it acquired a subsidiary from Appliance Recycling Centers of America to report positive net income, and that the company materially underreported Isaac's compensation. On this news, the Company's share price fell $29.08, or 46%, in a single trading day. "We're focused on investors' losses and proving Live's senior management cooked the company's books," said Reed Kathrein, the Hagens Berman partner leading the investigation. If you invested in Live and have significant losses, or have knowledge that may assist the firm's investigation, click here to discuss your legal rights with Hagens Berman. Whistleblowers: Persons with non-public information regarding Live should consider their options to help in the investigation or take advantage of the SEC Whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 844-916-0895 or email LIVE@hbsslaw.com. About Hagens Berman Hagens Berman is a national law firm with eight offices in eight cities around the country and over eighty attorneys. The firm represents investors, whistleblowers, workers and consumers in complex litigation. More about the firm and its successes is located at hbsslaw.com. [GN] LLOYD'S LONDON: Class Settlement in Aquilina Suit Has Prelim. Nod ----------------------------------------------------------------- In the case, STEPHEN G. AQUILINA and LUCINA J. AQUILINA, Individually and on Behalf of All Others Similarly Situated; and DONNA J. CORRIGAN and TODD L. CORRIGAN, Individually and on Behalf of All Others Similarly Situated, Plaintiffs v. CERTAIN UNDERWRITERS AT LLOYD'S LONDON; LLOYD'S SYNDICATE #2003; LLOYD'S SYNDICATE #318; LLOYD'S SYNDICATE #4020; LLOYD'S SYNDICATE #2121; LLOYD'S SYNDICATE #2007; LLOYD'S SYNDICATE #1183; LLOYD'S SYNDICATE #1729; LLOYD'S SYNDICATE #510; BORISOFF INSURANCE SERVICES, INC. d/b/a MONARCH E&S INSURANCE SERVICES; SPECIALTY PROGRAM GROUP, LLC d/b/a SPG INSURANCE SOLUTIONS, LLC; ALOHA INSURANCE SERVICES, INC.; ILIKEA LLC d/b/a MOA INSURANCE SERVICES HAWAII; and DOES 1-100, Defendants, Case No. 1:18-cv-00496-ACK-KJM (D. Haw.), Judge Alan C. Kay of the U.S. District Court for the District of Hawaii granted the Plaintiffs' Unopposed Motion for Preliminary Approval of the Settlement Agreement. The Plaintiffs are residents of the Puna District of Hawai'i Island ("Big Island") who own properties in the Lava Zone 1, an eruption zone near Kilauea Volcano. They brought the lawsuit in 2018 as a putative class action asserting claims relating to their purchase of surplus lines homeowners insurance policies brokered and underwritten by the various Defendants. The policies each contained an exclusion for the peril of lava or lava flow, which the Plaintiffs claim rendered them worthless or unsuitable given their properties' location in a high-risk lava zone. In early 2018, the Kilauea Volcano erupted, displacing nearby residents and causing many to sustain substantial damage to their homes and properties. After two rounds of motions to dismiss, the operative Second Amended Complaint asserts four claims for relief: (i) as against all four Defendants, a claim for unfair and deceptive acts and practices (UDAP) under the unfair prong; (ii) as against Underwriters, a claim for breach of the duty of good faith and fair dealing (bad faith claim); (iii) as against Moa and Aloha, a claim for negligence; and (iv) as against Moa and Aloha, a claim for unjust enrichment. All four claims are based on the Plaintiffs' allegations that the Defendants in their various capacities breached obligations under the Hawaii Surplus Lines Act. They rely in particular on H.R.S. Section 431:8-301(a) which requires that surplus lines insurers conduct a "diligent search" for other available coverage before placing a homeowner with surplus lines coverage. Had the Defendants conducted that diligent search, the Plaintiffs say, they would have been required to advise qualified homeowners of the availability of lava-damage coverage through the Hawaii Property Insurance Association ("HPIA"), a statutorily created association of admitted insurers established in part in response to Kilauea's eruption patterns, which made the private insurance market less likely to insure certain high-risk areas. The Plaintiffs' basic underlying theory is that they suffered injury upon purchasing the surplus lines policies because, in their view, the policies were written and placed unlawfully. The case began in 2018 as a putative class action. The initial Complaint was brought by lead Plaintiffs the Aquilinas and Audra and Scott Lane, and named as Defendants Underwriters, Monarch, Moa, and Pyramid Insurance Centre, Ltd. It alleged that the various Defendants had engaged in a deceptive scheme to defraud Plaintiffs and the putative class and deprive them of meaningful insurance coverage. All four Defendants moved to dismiss for Federal Rule of Civil Procedure 9(b) pleading deficiencies, which the Court granted without prejudice on Sept. 26, 2019. The First Amended Complaint was filed on Dec. 12, 2019. It replaced the Lanes with the Corrigans, and Pyramid (the Lanes' retail broker) with Aloha (the Corrigans' retail broker). It also changed the Plaintiffs' theory of the case, abandoning the allegations of deception and fraud and reframing them to allege unfair and negligent conduct. After the Court entered two orders dismissing the unjust enrichment claim against Underwriters and Monarch and declining to abstain under the Colorado River abstention doctrine, the Second Amended Complaint was filed on Feb. 10, 2021. The Parties continued with discovery, and over the course of six months, the Parties briefed to completion various motions on class certification. The Court scheduled a hearing for June 3, 2021, to hear arguments on class certification. Just before the hearing, the Parties notified the Court that they had reached a settlement in principle. The Court therefore continued the hearing to July 22, 2021, and instructed the Parties to submit the settlement terms and motions for preliminary approval one week before the hearing. The Plaintiffs filed their Notice of Unopposed Motion for Preliminary Approval of Settlement Agreement on July 13. The Court held the hearing on the preliminary approval of the settlement on July 22. At the hearing, the Court pointed out a handful of deficiencies and concerns with the Settlement Agreement and the Notice. The Plaintiffs then filed an amended Settlement Agreement adequately addressing the Court's major concerns on July 30. In addition to the class action in federal court, there are also parallel lawsuits pending in state court. The Aquilinas and the Corrigans both have pending lawsuits in state court, as do several other unnamed Class Members. These lawsuits generally involve properties damaged by the 2018 eruption's lava flow, and are primarily based on various defendants' alleged conduct in the claims handling process, including wrongful coverage denials or refusals to pay certain claims. As alluded to earlier, the Parties participated in private mediation in early 2021 and were ultimately able to reach a settlement before the class had been certified. The terms of the settlement agreement are memorialized in the revised Settlement Agreement and Release filed on July 30, 2021. The proposed Settlement Class consists of the following: All persons who purchased a surplus lines insurance policy for a residential property located in Lava Zone 1 on the island of Hawai'i with a Lava Exclusion at any time during the period of Jan. 1, 2012 through and including May 4, 2018 that was brokered through Monarch and underwritten and/or subscribed to by Underwriters. The Defendants agree to pay $1.8 million (the Settlement Fund) to be allocated among Class Members following certain deductions. Certain Defendants also agree to pay up to $50,000 to the Settlement Administrator to defray the actual expenses of notice of the Settlement and all expenses attendant to the administration of the proposed Settlement. The Settlement Agreement provides that the following amounts will be deducted from the Settlement Fund before payments are made to the Class: (1) costs of notice and administration to the extent that they exceed the $50,000; (2) service awards of up to $5,000 ($2,500 to each pair of named Plaintiffs, the Aquilinas and the Corrigans); (3) attorneys' fees and litigation expenses approved by the Court and not exceeding one-third (33.3%) of the gross Settlement Fund, including any interest earned thereon; and (4) any taxes and escrow costs, including taxes payable as indemnification. The remainder after those deductions are made constitutes the net settlement amount from which individual Class Members will be paid. Payments to Class Members that do not opt out will be calculated and distributed based on the proportion of total premium dollar amount each Class Member paid during the Class Period. The Plaintiffs' Counsel anticipate that Class Members will be eligible to receive at least 100% of the premium dollar amounts they paid during the Class Period. Class Members who do not opt out of the Settlement will automatically receive a cash payment; no specific documentation is required. The Settlement Agreement includes a detailed release. Simply put, the Class Members who choose not to opt out of the Settlement agree to release all four Defendants from all claims and liability arising from allegations made in the case. The release does not, however, extend to any claims and allegations made against non-settling parties or made in the State Court Lawsuits predicated on violations not alleged in the federal class action. To effectuate the general release, the Plaintiffs waive all rights and benefits under Cal Civ. Code Section 1542 and similar state laws, meaning they are deemed to have settled and released even claims not known to them at the time of the Settlement and release. The Settlement Agreement includes a robust Notice Program. Within seven days of preliminary approval, or as soon as practicable, the Class Counsel will provide the Settlement Administrator with the Class List. The Class List is based on records produced by the Defendants in discovery containing the identifiable names and addresses of the Class Members. No later than 30 days after preliminary approval, the Settlement Administrator will effectuate the specified Mail Notice. In the event that 10% to 15% of Mail Notices are returned as undeliverable, the Settlement Administrator will supplement with a Publication Notice, which would be published in media outlets widely read on the Big Island. In relevant part, the Notice Program will provide the Class Members with an overview of the Settlement, the methodology for calculating the payments, the scope of the Release, and other pertinent dates for opting out or objecting. The Notice also notifies the Class Members that they may attend the Final Approval Hearing in person and with an attorney. Finally, the Notice directs the Class Members to a website with more detailed information, including a copy of the full Settlement Agreement. Judge Kay preliminarily finds that the Settlement in its totality is fair, reasonable, and adequate. She therefore grants the Plaintiffs' unopposed Motion for Preliminary Approval of Settlement. The proposed Settlement is preliminarily approved. Accordingly, the Judge provisionally certifies the following Settlement Class: All persons who purchased a surplus lines insurance policy for a residential property located in Lava Zone 1 on the island of Hawai'i with a Lava Exclusion at any time during the period of Jan. 1, 2012 through and including May 4, 2018 that was brokered through Monarch and underwritten and/or subscribed to by Underwriters. Plaintiffs the Aquilinas and Corrigans are designated and appointed as representatives of the Settlement Class. The following lawyers are designated as the Class Counsel pursuant to Fed. R. Civ. P. 23(g): Joseph P. Guglielmo of Scott+Scott Attorneys at Law LLP, E. Kirk Wood of Wood Law Firm, LLC, and Gregory W. Kugle of Damon Key Leong Kupchak Hastert, Law Corporation. A Final Approval Hearing will take place before the Court on March 3, 2022, at 10:00 a.m. The Class Counsel will submit their application for attorneys' fees, expenses, and notice and administration costs, and the application for Service Awards no later than 100 days after the entry of the Order. Objectors, if any, will file any response to the Class Counsel's motions no later than 114 days after the entry of the Order. By no later than 160 days after the entry of the Order, responses, if any, will be filed to any filings by objectors, and any replies in support of final approval of the Settlement and/or the Class Counsel's application for attorneys' fees, expenses, notice and administration costs, and Service Awards will be filed. RG2 Claims Administration LLC is appointed as the Settlement Administrator as set forth in the Settlement, with responsibility for Claims Administration, the Notice Program, and all other obligations of the Settlement Administrator as set forth in the Settlement. Within 30 days of the Order, the Settlement Administrator will cause the Notice Program to be effectuated as set forth in the Settlement Agreement. Notice pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section 1715(b) will also be provided. Up to $50,000 of the Settlement Administrator's fees, as well as all other costs and expenses associated with notice and administration, will be paid by certain of the Releasees, with the remainder of such costs, if approved by the Court, to be paid by the Settlement Fund to the extent provided in the Settlement. Any Class Member that wishes to be excluded from the Settlement Class must mail a written notification of the intent to exclude itself to the Settlement Administrator, the Class Counsel, and the Defendants' counsel at the addresses provided in the Notice, postmarked no later than 114 days after the entry of the Order ("Opt-Out Deadline") and sent via first class postage pre-paid United States mail. The written notification must include the name of the Litigation, Aquilina, et al. v. Certain Underwriters at Lloyd's London, et al., No. 18-cv-00496-ACK-KJM (D. Haw.); the full name, mailing address, property address, email address, and telephone number of the Class Member; and the words "Request for Exclusion" at the top of the document or a statement in the body of the document requesting exclusion from the Settlement. If the Class Member fails to provide all the required information necessary to confirm the identity of the Class Member on or before the deadlines specified in the Settlement and fails to cure any deficiency within the time allowed in the Settlement, then its attempt to opt out will be invalid and have no legal effect, and the Class Member will be bound by the Settlement, including the releases, if finally approved. The Settlement Administrator will provide the Parties with copies of all opt-out notifications promptly upon receipt and a final list of all that have timely and validly excluded themselves from the Settlement Class in accordance with the terms of the Settlement. A Class Member that complies with the requirements of the Order may object to the Settlement, the request of the Class Counsel for an award of attorneys' fees, costs, and expenses, and/or the request for Service Awards. In addition, any Class Member that objects to the proposed Settlement must make itself available to be deposed regarding the grounds for its objection and must provide, along with its objection, the dates when the objector will be available to be deposed during the period from when the objection is filed through the date seven days before the Final Approval Hearing. The Settlement establishes a methodology for paying Class Members. Judge Kay preliminarily approves this process. The Net Settlement Fund will be distributed to the Class Members based on the proportion of total premium dollar each Class Member paid during the Class Period compared to the total aggregate premium paid by all Class Members during the Class Period. No specific documentation will be required. If the Settlement is finally approved, all the Class Members that qualify for any benefit under the Settlement will be subject to and bound by the provisions of the Settlement, including the releases included in the Settlement, and the Final Approval Order and Judgment. Except as necessary to effectuate the Order, the Litigation and any deadlines set by the Court in the matter are stayed and suspended pending the Final Approval Hearing and issuance of the Final Approval Order and Judgment, or until further order of the Court. The Settlement, as preliminarily approved in the Order, will be administered according to its terms pending the Final Approval Hearing. Deadlines arising under the Settlement and this Order include but are not limited to the following: a. Notice Deadline: Sept. 13, 2021 b. Objection and Opt-Out Deadline: Dec. 6, 2021 c. Final Approval Hearing: March 3, 2022, at 10:00 a.m. d. Application for Attorneys' Fees, Expenses and Service Awards (Fee Application): Nov. 22, 2021 e. Motion for Final Approval of the Settlement (Final Approval Motion): Nov. 22, 2021 f. Objectors', if any, Response to Final Approval Motion and Fee Application: Dec. 6, 2021 g. Replies in Support of Final Approval and Fee Motion: Jan. 20, 2022 In sum, Judge Kay (1) provisionally certifies the proposed Settlement Class; (2) preliminarily approves the proposed Settlement; (3) approves the proposed Notice Program; (4) appoints the Plaintiffs as the Class representatives; (5) appoints Joseph P. Guglielmo of Scott+Scott Attorneys at Law LLP, E. Kirk Wood of Wood Law Firm LLC, and Gregory W. Kugle of Damon Key Leong Kupchak Hastert, a Law Corporation, as the Class Counsel; (6) appoints RG/2 Claims Administration, LLC as the Settlement Administrator; (7) stays the litigation pending final approval; and (8) schedules the final approval hearing for March 3, 2022, at 10:00 a.m. A full-text copy of the Court's Aug. 13, 2021 Order is available at https://tinyurl.com/23cfra2x from Leagle.com. LOUISIANA: Compelled to Show CAJUN Data in Humphrey v. LeBlanc -------------------------------------------------------------- In the case, BRIAN HUMPHREY, v. JAMES LEBLANC, Civil Action No. 20-233-JWD-SDJ (M.D. La.), Magistrate Judge Scott D. Johnson of the U.S. District Court for the Middle District of Louisiana granted in part and denied in part the Plaintiff's Motion to Compel the Production of CAJUN Data filed on Feb. 22, 2021. James LeBlanc is the Secretary of the Louisiana Department of Public Safety and Corrections. The Plaintiff's Motion seeks an order compelling Defendant LeBlanc to produce certain data maintained in the Defendant's electronic record management system, known as CAJUN, in response to four Requests for Production previously propounded on the Defendant. The Defendant opposes the Motion, filing his Opposition on March 15, 2021, with the Plaintiff subsequently filing his Reply, with leave of Court, on March 23, 2021. Discussion The Plaintiff's four Requests for Production all seek certain data from Defendant's CAJUN database for various time periods from April 2019 to present. While generally similar, each request seeks a slightly different set of data from the CAJUN database. A. Request for Production No. 1 The Plaintiff's Request for Production No. 1 seeks "all CAJUN data from April 2019 through May 2020 corresponding to the categories of information contained in the February 2019 Pull Document for all inmates who were eligible for immediate release at the point their time was initially computed." The Defendant objects to this request on the following four grounds: (1) that "it improperly requires defendant to create a document that would not otherwise exist"; (2) that it is "overly broad, unduly burdensome, and not proportional to the needs of the case"; (3) that the request is premature; and (4) that the request "seeks confidential, private and sensitive information." 1. Whether the request impermissibly requires Defendant to create a document The Defendant first objects to this request by the Plaintiffs, arguing that it improperly requires the Defendant to create a document that would not exist otherwise, because the Defendant does not create or compile, in the form requested, this information as a matter of ordinary course." The Defendant posits that the "Plaintiff is not simply requesting the Defendant translate ESI into a usable form" and continues that "instead, DOC employees would be required to perform code searches in CAJUN within the Plaintiff's parameters, cross check enormous amounts of data, manually fill data in to the columns requested by the Plaintiff, and create a spreadsheet." Judge Johnson finds this argument without merit. He holds that while the Plaintiffs seek information corresponding to the categories of information contained in the February 2019 Pull Document, in producing this information, the Defendant does not have to anything other than provide the information requested in a usable form with the information properly identified. 2. Whether the request is overly broad, unduly burdensome, or disproportionate to the needs of the case The Defendant next objects that the request by the Plaintiff is overly broad, unduly burdensome, and not proportional to the needs of the case. According to the Defendant, "it took Ms. Gueho about 8 hours to prepare the pull document for the month of February 2019. Thus, per the Defendant, it would take two Department of Corrections ("DOC") attorneys "10-20 hours to manually review the pre-class documents of each inmate on the list and check all information for accuracy." It, therefore, would take "approximately 230 hours to compile and check the information" for this period. Multiplying this alleged 4-hour limit by the 14 months of data requested, the Plaintiff appears to be claiming that this data can be produced in 56 hours. Judge Johnson does not find that this request is overly burdensome or disproportionate to the needs of the case. First, requiring just over a week of work is not overly burdensome. Further, the benefit outweighs the burden alleged. He says, this data is needed for the Plaintiff to determine whether a class of inmates overdetained by the DOC can be established, and this data system is in DOC's sole possession and not available elsewhere. Further, while the specific amount in controversy for this case is unknown at this point, other overdetention cases have resulted in large settlements. The Judge, therefore, does not find that this request is overly broad, unduly burdensome, or disproportionate to the needs of the case. 3. Whether Plaintiff's request is premature As argued by the Defendant, the Plaintiff's request is premature because "it is clear that the true reason the Plaintiff is requesting this information is to identify potential class members." The Defendant goes on the argue that the Plaintiff's claim that the pull document data will show how many individuals were overdetained is "untrue" because it "does not provide a complete picture of each inmate's release, which can only be accomplished through individual review and analysis of each inmate's entire pre-class file." The Defendant then lambasts the Plaintiff for "failing to take any discovery on this particular issue, only deposing Ms. Gueho as to how long it took to create the pull document." The Defendant continues that "while the Plaintiff alleges that the pull document will prove his case, he has not conducted the required discovery to determine such, or to show that the enormous burden is necessary." Judge Johnson finds that the Defendant appears to be conflating arguments. He holds that the Defendant's argument that the Plaintiff seeks only to identify specific class members is meritless. While he agrees that identification of individuals is not necessary at this stage, the Judge also finds that this request is not premature in that the data, at this point, is being sought for purposes of determining whether the requirements of Rule 23 are met. The Defendant then takes the Plaintiff to task for not conducting additional discovery to prove that the requested CAJUN data will prove his case. But the case is not there yet. The Judge says, discovery being conducted now is for class certification purposes; the Plaintiff is not required to prove his case at this point. Further, the Judge finds this argument -- that the Plaintiff has not conducted enough discovery -- interesting in the current context where Defendant is objecting to the extent of discovery being requested by the Plaintiff. As he finds that the information requested is relevant to the issue of class certification, the Judge does not find this request premature. 4. Whether Plaintiff's request seeks confidential information Finally, the Defendant objects that the Plaintiff's Request for Production No. 1 seeks confidential, sensitive information, "including the criminal and personal records belonging to individuals who may or may not be included in the proposed class in this matter." Judge Johnson finds that any concern the Defendant may have had as to protective of certain sensitive and/or confidential information is mitigated by the existence of the Protective Order, which allows the Parties to protect any such information from public disclosure. B. Request for Production Nos. 2 and 3 The Plaintiff's Request for Production Nos. 2 and 3 are similar. Request for Production No. 2 seeks "all Documents, including CAJUN data, master prison records, and time computation documents for all inmates in the custody of the DOC between April 2019 through May 2020 with a 'must serve' number less than or equal to zero." Similarly, Request for Production No. 3 asks for "all Documents, including CAJUN data, master prison records, and time computation documents for all inmates in the custody of the DOC between April 2019 through May 2020 with a 'must serve' number less than the number of days between the inmate's sentencing date and the date of the inmate's initial time computation." The Defendant objects to both of these requests on the grounds that compiling this information allegedly could take up to 2,000 employee hours for each request, that the requests are premature, and that these requests also "seek confidential, private and sensitive information." First, Judge Johnson finds that spending "up to one hour per inmate" -- meaning it could very well be less than one hour -- is not unreasonable. Second, the Defendant in essence argues that, because there are so many overdetained inmates, the burden of providing information on them is too great. To say this is unpersuasive is an understatement. Further, it appears to the Court that providing this information may potentially alleviate any concerns Defendant has that the information provided in Request No. 1 may include some incorrect or incomplete information, thereby necessitating the lengthy manual review of the data. These requests are granted. C. Request for Production No. 4 The Plaintiff's Request for Production No. 4 seeks the CAJUN data sought in Request for Production Nos. 1-3 "as it exists on the first day of every month, during the pendency of this action." The Defendant objects to this requests on the same grounds as for the previous three requests. At this point, while the Parties are engaged only in class discovery, Judge Johnson will not impose this continuing burden of production on the Defendant, particularly as the information being sought is for the vague, undefined "pendency of the action," which burden will last after he determines whether a class should be certified in the case. The Judge finds this request impermissibly broad. As such, this request, at this point in the litigation, will be denied. Conclusion Accordingly, Judge Johnson granted in part and denied in part the Motion to Compel the Production of CAJUN Data filed by the Plaintiff. The Plaintiff's Motion to Compel is granted as to Requests for Production Nos. 1, 2, and 3, and the Defendant is ordered to provide the CAJUN data requested in those three discovery requests. The Plaintiff's Motion to Compel is denied as to Request for Production No. 4. The Defendant is further ordered to commence its efforts to compile the responsive information immediately. A Status Conference will be held at 3:00 p.m. on Sept. 1, 2021, at which time the Defendant will report to the Court on its efforts to compile the responses ordered herein. Based upon the information provided at the Status Conference, the Court will establish deadlines for discovery and other activities related to class certification. A full-text copy of the Court's Aug. 11, 2021 Order is available at https://tinyurl.com/2m2c9fbu from Leagle.com. LOWE'S HOME: Class Certification in Bartholomew Suit Partly Granted ------------------------------------------------------------------- In the case, DIANE BARTHOLOMEW and MICHAEL SHERRY, on behalf of themselves and all others similarly situated, Plaintiffs v. LOWE'S HOME CENTERS, LLC, Defendant, Case No. 2:19-cv-695-JLB-MRM (M.D. Fla.), Judge John L. Badalamenti of the U.S. District Court for the Middle District of Florida, Fort Myers Division, granted in part and denied in part the Plaintiffs' motion for conditional class certification and to facilitate notice on the putative classes. The case is an employment action. In short, the Plaintiffs are both 62 years old and have worked for Lowe's in hourly positions as sales associates. In addition to their hourly pay, they were paid commissions on certain sales based on the "spiff" received from the manufacturer. On Feb. 11, 2012, Lowe's replaced this commission income with an adjustment in pay, known as an "allowance," based on an employee's prior commission income. Lowe's told the Plaintiffs they would be entitled to the allowance if they remained hourly employees at a Lowe's store. In August 2019, Lowe's announced that the allowance pay would cease for all eligible employees on Feb. 1, 2020. After the allowance pay ceased, the Plaintiffs brought the action on behalf of themselves and "all the other similarly-situated individual who have been or may have been affected," including "current opt-in Plaintiffs, Willis Pelton (a 54-year old male) and Jason Slater (a 49-year old male), and Mark Easterling (a 53-year old male)." The Plaintiffs bring three claims based on the termination of allowance pay: disparate impact in violation of the Age Discrimination in Employment Act (ADEA) (Count I); contract implied in fact/quantum meruit (Count II); contract implied in law/unjust enrichment (Count III). Prior motions to dismiss the claims were denied. The Plaintiffs now move "for conditional class certification and to facilitate notice on the putative classes." Specifically, they move to conditionally certify a collective action as to the ADEA claim on behalf of: "All persons employed by Defendant in an hourly position that worked for Defendant prior to February 11, 2012 and received an Allowance or were eligible to receive an allowance through February 1, 2020, that were born on or before August 1, 1979. These persons needed to work for Defendant in an hourly position and needed to have received the Allowance, at least through the date of Defendant's decision to eliminate the Allowance (approximately August 1, 2019)." As to Counts II and III, the Plaintiffs move to "certify the following class under Rule 23(b)(2) and/or (3)": "All persons employed by Defendant in an hourly position that worked for Defendant prior to February 11, 2012 and received an Allowance or were eligible to receive an allowance through February 1, 2020. These persons needed to work for Defendant in an hourly position and needed to have received the Allowance, at least through the date of Defendant's decision to eliminate the Allowance (approximately August 1, 2019)." Lowe's opposes both requests for certification. Discussion I. Conditional Certification and Notice Are Warranted as to the ADEA Claim The Plaintiffs seek facilitation of notice and conditional certification of their ADEA claim under 29 U.S.C. Section 216(b), which establishes an opt-in mechanism for collective actions. District courts "have discretion, in appropriate cases, to implement 29 U.S.C. Section 216(b) in ADEA actions by facilitating notice to potential plaintiffs." Facilitating notice is appropriate where there are other individuals who desire to opt-in and are "similarly situated" to the Plaintiffs. The Eleventh Circuit has outlined a "two-tiered procedure" to certify collective actions under section 216(b). Judge Badalamenti finds that at a minimum, the Plaintiffs have certainly provided more than "counsel's unsupported assertions that violations are widespread and that additional plaintiffs would come from other stores." Courts have also found that the merits of a claim are generally irrelevant at the initial notice stage. And as to the merits, Lowe's relies on arguments that were previously rejected. Lastly, Lowe's does not adequately support its contention that this Court is able to defer its determination as to conditional certification and notice until a ruling on the ADEA claim's merits becomes timely. In summary, Judge Badalamenti holds that conditional certification and facilitation of notice are warranted as to the Plaintiffs' ADEA claim. Before notice is effected, however, Lowe's requests that it "be provided the opportunity to address the contents of the notice and how the putative class members will be contacted."The request is granted to the extent that the parties may file supplemental briefing, including a proposal for the contents of the notice and how the putative class members will be contacted, within 20 days of the Order. Any briefing will not exceed seven pages, excluding the certificate of service and signature page. II. Class Certification Is Unwarranted as to the Remaining Claims The Plaintiffs also move for class certification under Federal Rule of Civil Procedure 23 as to their state law "contract implied in fact/quantum meruit" and "contract implied in law/unjust enrichment" claims. But as Lowe's correctly contends, class certification as to these claims is unwarranted. To sustain a class action, Rule 23(a) requires that: (1) the class is so numerous that joinder of all members is impracticable (numerosity); (2) there are questions of law or fact common to the class (commonality); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and (4) the representative parties will fairly and adequately protect the interests of the class (adequacy).The party seeking certification "must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b)." Lowe's contends that the commonality and typicality prerequisites are not satisfied, that there is no final injunctive or declaratory relief that is appropriate as to the class, that questions of law and fact common to the class do not predominate over questions affecting individual members, and that a class action is not superior to other available methods for fairly and effectively adjudicating the controversy. Judge Badalamenti agrees that, at a minimum, the Plaintiffs have failed to satisfy Rule 23(b)(2) and (3). Accordingly, certification of the class is unwarranted. First, the Judge finds that the monetary damages are at the heart of the Plaintiffs' prayer for injunctive and declaratory relief. And Rule 23(b)(2) "does not authorize class certification when each class member would be entitled to an individualized award of monetary damages." Second, the equitable nature of a claim is "irrelevant" under Rule 23(b)(2). Thus, the Plaintiffs' request to certify a class under Rule 23(b)(2) for the non-ADEA claims set forth in Counts II and III is denied. The Judge also finds that the Plaintiffs have also failed to satisfy Rule 23(b)(3)'s requirements of predominance and superiority. First, the Plaintiffs have not met Rule 23(b)(3)'s predominance requirement on Counts II and III either. Common issues of fact and law do not predominate. The common issues are few and straightforward: The Plaintiffs and the putative class members were employed by Lowe's in hourly positions, prior to Feb. 11, 2012, and received an allowance through the date of Lowe's decision to eliminate the allowance. By contrast, the differences and fact-intensive inquiries requiring individualized proof dwarf the common issues of fact and law, particularly given the nature of the causes of action. Second, the Judge holds that the Plaintiffs have not also shown that "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." He finds that a class action could not be fairly or efficiently adjudicated. As the Eleventh Circuit has observed, a "lack of predominance effectively ensures that, as a substantive matter, a class action is almost certainly not superior to other available methods for fairly and efficiently adjudicating the controversy." The Plaintiffs have not shown that a different outcome is warranted in the case. In sum, the Plaintiffs have not demonstrated that "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Absent a showing that Rule 23(b) is satisfied, their request for class certification as to Counts II and III is denied. Conclusion In light of the foregoing, Judge Badalamenti granted in part and denied in part the Plaintiffs' Motion for Conditional Class Certification and Motion to Facilitate Notice Under Section 216(b) and Rule 23. As to the ADEA claims set forth in Count I of the Amended Complaint, the action is conditionally certified to proceed as a collective action under 29 U.S.C. Section 216(b). The parties may file supplemental briefing, including a proposal for the contents of the notice and how the putative class members will be contacted, within 20 days of the Order. Any briefing will not exceed seven pages, excluding the certificate of service and signature page. The request for class certification as to Counts II and III is denied. A full-text copy of the Court's Aug. 13, 2021 Order is available at https://tinyurl.com/b38cp7u from Leagle.com. LUCKY SCENT: Calcano Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Lucky Scent, Inc. The case is styled as Evelina Calcano, on behalf of herself and all other persons similarly situated v. Lucky Scent, Inc., Case No. 1:21-cv-07148 (S.D.N.Y., Aug. 24, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Luckyscent -- https://www.luckyscent.com/ -- offers the best selection of niche perfumes, fragrances and candles anywhere.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal MASTERCARD INC: London Court Approves GBP14BB Class Action ---------------------------------------------------------- Kirstin Ridley, writing for Reuters, reports that a London court on Aug. 18 approved a 10 billion pound-plus ($14 billion-plus) class action against global payments processor Mastercard that claimants said could entitle 46 million British adults to roughly 300 pounds each if it is successful. The Competition Appeal Tribunal (CAT) had been expected to certify Britain's first mass consumer class action, brought by former financial ombudsman Walter Merricks, after the UK Supreme Court overruled objections to it in December. The decision to finally authorise the five-year case as a collective action establishes a standard for a string of other proposed class actions that have been stalled in its wake. "Mastercard has thrown everything at trying to prevent this claim going forward, but its efforts have failed," Merricks said in a statement. "The tribunal's ruling heralds the start of an era of consumer-focused class actions which will help to hold big business to account in areas that really matter." Mastercard said the "spurious" claim was being driven by lawyers and backed by organisations "primarily focused on making money for themselves". Merricks alleges Mastercard charged excessive "interchange" fees -- the fees retailers pay credit card companies when consumers use a card to shop - between May 1992 and June 2008 and that those fees were passed on to consumers as retailers raised prices. But Merricks failed to expand the scope of the case by adding the estates of the deceased and compound interest to the claim. Mastercard said this reduced the claim's size to around 10 billion pounds. The claimants put it at 15 billion pounds. "The decision reduces the value of this spurious claim by more than 35%," Mastercard said in a statement. "Mastercard is confident that over the coming months a review of key facts will further significantly reduce the size and viability of the claim." [GN] MATCH GROUP: Candelore Class Suit Still Stayed ---------------------------------------------- Match Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the putative class action suit entitled, Allan Candelore v. Tinder, Inc., No. BC583162, is still stayed. On May 28, 2015, a putative state-wide class action was filed against Tinder in state court in California. Allan Candelore v. Tinder, Inc., No. BC583162 (Superior Court of California, County of Los Angeles). The complaint principally alleged that Tinder violated California's Unruh Civil Rights Act by offering and charging users age 30 and over a higher price than younger users for subscriptions to its premium Tinder Plus service. The complaint sought certification of a class of California Tinder Plus subscribers age 30 and over and damages in an unspecified amount. On December 29, 2015, in accordance with a prior ruling sustaining Tinder's demurrer, the court entered judgment dismissing the action. On January 29, 2018, the California Court of Appeal (Second Appellate District, Division Three) issued an opinion reversing the judgment of dismissal. On May 9, 2018, the California Supreme Court denied Tinder's petition seeking interlocutory review of the Court of Appeal's decision and the case was returned to the trial court for further proceedings. In a related development, on June 21, 2019, in a substantially similar putative class action asserting the same substantive claims and pending in federal district court in California, the court entered judgment granting final approval of a class-wide settlement, the terms of which are not material to the Company. See Lisa Kim v. Tinder, Inc., No. 18-cv-3093 (Central District of California). Because the approved settlement class in Kim subsumes the proposed settlement class in Candelore, the judgment in Kim would effectively render Candelore a single-plaintiff lawsuit. Accordingly, on July 11, 2019, two objectors to the Kim settlement, represented by the plaintiff's counsel in Candelore, filed a notice of appeal from the Kim judgment with the U.S. Court of Appeals for the Ninth Circuit. Oral argument on the appeal occurred on January 15, 2021. On November 13, 2019, the trial court in Candelore issued an order staying the class claims in the case pending the Ninth Circuit's decision on the Kim appeal. Match Group said, "We believe that the allegations in the Candelore lawsuit are without merit and will continue to defend vigorously against it." No further updates were provided in the Company's SEC report. Match Group, Inc. provides dating products worldwide. It operates a portfolio of brands, including Tinder, Match, PlentyOfFish, Meetic, OkCupid, OurTime, Pairs, and Hinge, as well as other brands. Match Group, Inc. offers its dating products through its applications and Websites in approximately 40 languages. The company was incorporated in 2009 and is headquartered in Dallas, Texas. Match Group, Inc. operates as a subsidiary of IAC/InterActiveCorp. MATCH GROUP: Crutchfield Securities Class Suit Underway ------------------------------------------------------- Match Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a securities class action suit entitled, Phillip R. Crutchfield v. Match Group, Inc., Amanda W. Ginsberg, and Gary Swidler, No. 3:19-cv-02356-C (Northern District of Texas). On October 3, 2019, a Former Match Group shareholder filed a securities class action lawsuit in federal district court in Texas against Former Match Group, its then Chief Executive Officer, and its Chief Financial Officer, on behalf of a class of acquirers of Former Match Group securities between August 6, 2019 and September 25, 2019. Invoking the allegations in the Federal Trade Commission lawsuit, the complaint alleges (i) that defendants failed to disclose to investors that Former Match Group induced customers to buy and upgrade subscriptions using misleading advertisements, that Former Match Group made it difficult for customers to cancel their subscriptions, and that, as a result, Former Match Group was likely to be subject to regulatory scrutiny; (ii) that Former Match Group lacked adequate disclosure controls and procedures; and (iii) that, as a result of the foregoing, defendants' positive statements about Former Match Group's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. On March 30, 2021, the court granted defendants' motion to dismiss with leave to amend. Plaintiff filed an amended complaint on April 23, 2021. Match Group said, "We believe that the allegations in this lawsuit are without merit and will defend vigorously against them." Match Group, Inc. provides dating products worldwide. It operates a portfolio of brands, including Tinder, Match, PlentyOfFish, Meetic, OkCupid, OurTime, Pairs, and Hinge, as well as other brands. Match Group, Inc. offers its dating products through its applications and Websites in approximately 40 languages. The company was incorporated in 2009 and is headquartered in Dallas, Texas. Match Group, Inc. operates as a subsidiary of IAC/InterActiveCorp. MATCH GROUP: Separation Transaction Related Suit Underway --------------------------------------------------------- Match Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the suit entitled, David Newman et al. v. IAC/Interactive Corp. et al., C.A. No. 2020-0505-MTZ, has been consolidated with another suit entitled, In Re Match Group, Inc. Derivative Litigation, Consolidated C.A. No. 2020-0505-MTZ (Delaware Court of Chancery). On June 24, 2020, a Former Match Group shareholder filed a complaint in the Delaware Court of Chancery against Former Match Group and its board of directors, as well as Match Group, IAC Holdings, Inc., and Barry Diller seeking to recover unspecified monetary damages on behalf of the Company and directly as a result of his ownership of Former Match Group stock in relation to the separation of Former Match Group from its former majority shareholder, Match Group. David Newman et al. v. IAC/Interactive Corp. et al., C.A. No. 2020-0505-MTZ (Delaware Court of Chancery). The complaint alleges that the special committee established by Former Match Group's board of directors to negotiate with Match Group regarding the separation transaction was not sufficiently independent of control from Match Group and Mr. Diller and that Former Match Group board members failed to adequately protect Former Match Group's interest in negotiating the separation transaction, which resulted in a transaction that was unfair to Former Match Group and its shareholders. On January 21, 2021, the case was consolidated with other shareholder actions, and an amended complaint was filed on April 14, 2021. In Re Match Group, Inc. Derivative Litigation, Consolidated C.A. No. 2020-0505-MTZ (Delaware Court of Chancery). We believe that the allegations in this lawsuit are without merit and will defend vigorously against it. Match Group, Inc. provides dating products worldwide. It operates a portfolio of brands, including Tinder, Match, PlentyOfFish, Meetic, OkCupid, OurTime, Pairs, and Hinge, as well as other brands. Match Group, Inc. offers its dating products through its applications and Websites in approximately 40 languages. The company was incorporated in 2009 and is headquartered in Dallas, Texas. Match Group, Inc. operates as a subsidiary of IAC/InterActiveCorp. MDL 2966: Claims in Consolidated Xyrem Antitrust Suit Narrowed -------------------------------------------------------------- In the case, IN RE: XYREM (SODIUM OXYBATE) ANTITRUST LITIGATION. This Document Relates To: All Actions, Master File No. 20-MD-02966-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose Division, grants in part and denies in part the Defendants' Motion to Dismiss Counts 1, 5-12, and 17 of the Consolidated Class Action Complaint and Counts 1, 5-9, and 11 of United Healthcare Services' Complaint. In the multidistrict litigation, two sets of Plaintiffs allege that certain manufacturers of the drug sodium oxybate (brand name Xyrem) have violated federal and state antitrust laws. The first set of Plaintiffs, the Class Plaintiffs, comprise the following coalition of putative class representatives: (1) A.F. of L. - A.G.C. Building Trades Welfare Plan; (2) Blue Cross Blue Shield Association; (3) City of Providence, Rhode Island; (4) Government Employees Health Association, Inc.; (5) New York State Teamsters Council Health and Hospital Fund; (6) Self-Insured Schools of California; (7) UFCW Local 1500 Welfare Fund; and (8) Xyrem patient Ruth Hollman. The second set of Plaintiffs comprises United HealthCare Services, Inc., which brings an individual action against the same Defendants as the Class Plaintiffs. The Defendants are (1) Jazz Pharmaceuticals Plc, Jazz Pharmaceuticals, Inc., and Jazz Pharmaceuticals Ireland Limited (collectively, "Jazz"); (2) Hikma Labs, Inc. (formerly known as Roxane Laboratories, Inc.), Hikma Pharmaceuticals USA Inc. (formerly known as West-Ward Pharmaceuticals Corp.), Eurohealth (USA), Inc., and Hikma Pharmaceuticals plc. (collectively, "Hikma"); and (3) Amneal Pharmaceuticals LLC, Par Pharmaceuticals, Inc., and Lupin Ltd, Lupin Pharmaceuticals Inc., and Lupin, Inc. (collectively, "Later Generic Defendants"). At issue in the antitrust case is the drug sodium oxybate. Sodium oxybate is older than aspirin. Since the 1960s, sodium oxybate has been a treatment for narcolepsy. In 2002, a drug company named Orphan Medical obtained Food and Drug Administration ("FDA") approval to market sodium oxybate as a treatment for cataplexy -- the sudden loss of muscle control while awake -- associated with narcolepsy. Orphan Medical named this treatment Xyrem. The profitability of Xyrem did not go unnoticed. Between July 2010 and November 2017, nine manufacturers of generic drugs sought to enter Xyrem's market before the expiration of Xyrem patents. Specifically, these generic drug manufacturers filed Abbreviated New Drug Applications ("ANDAs") seeking FDA approval to manufacture, market, and sell generic drugs that would be bioequivalent to Xyrem. As a general matter, bioequivalent generic drugs are called "AB-rated" generics or commonly just "generics." In response to these ANDAs, Jazz allegedly schemed to preserve its multi-billion-dollar Xyrem monopoly. Jazz's alleged scheme had three main parts that operated in roughly chronological but overlapping order: (a) abuse of an FDA drug safety program called "Risk Evaluation and Mitigation Strategy"; (b) sham litigation; and (c) reverse payments to four of the generic manufacturers -- Hikma and the Later Generic Defendants. The multidistrict litigation consists of two operative complaints across nine actions. One action is an individual action brought by Plaintiff United HealthCare Services, Inc., which "serves some 70 million individual insureds" as "the largest single health insurance carrier and services provider in the United States." The remaining actions are putative class actions brought by the Class Plaintiffs, a coalition of four types of the Plaintiffs: a. Labor unions' health plans or welfare benefits funds, namely A.F. of L. - A.G.C. Building Trades Welfare Plan, New York State Teamsters Council Health and Hospital Fund, and UFCW Local 1500 Welfare Fund. These labor unions' funds bought or reimbursed Xyrem for their members; b. Associations of companies that provide health plans, namely Blue Cross Blue Shield Association and Government Employees Health Association. Together, these associations provide health benefits to more than 107 million people nationwide; c. Government entities, namely the Self-Insured Schools of California and the City of Providence, Rhode Island. These entities pay bought or reimbursed Xyrem for their employees and retirees; and d. Xyrem patient Ruth Hollman, who has used Xyrem since 2009. On Dec. 16, 2020, the Judicial Panel on Multidistrict Litigation transferred six putative class actions to the Court. Two more putative class actions were transferred on Jan. 4, 2021, followed by another putative class action on Jan. 26, 2021. On Jan. 27, 2021, one of the nine transferred actions was voluntarily dismissed without prejudice in accordance with a tolling agreement. The dismissal left eight putative class actions. On Feb. 22, 2021, the Court appointed the Interim Co-Lead Class Counsel and the Plaintiffs' Steering Committee. For the Interim Co-Lead Class Counsel, the Court appointed Dena Sharp of Girard Sharp LLP and Michael Buchman of Motley Rice LLC. For the Plaintiffs' Steering Committee, the Court appointed Jessica R. MacAuley of Hagens Berman Sobol Shapiro LLP; Karin Garvey of Labaton Sucharow LLP; Joseph Saveri of Joseph Saveri Law Firm, Inc.; Kenneth Wexler of Wexler Wallace LLP; Clark Craddock of the Radice Law Firm; John Macoretta of Spector Roseman & Kodroff PC; and Mark Fischer of Rawlings & Associates, PLLC. On March 8, 2021, the Plaintiffs in the eight putative class actions (together, "Class Plaintiffs") filed one of the operative complaints: The Consolidated Class Action Complaint ("CAC"). The Class Plaintiffs comprise (1) A.F. of L. - A.G.C. Building Trades Welfare Plan; (2) Blue Cross Blue Shield Association; (3) City of Providence, Rhode Island; (4) Government Employees Health Association, Inc.; (5) New York State Teamsters Council Health and Hospital Fund; (6) Self-Insured Schools of California; (7) UFCW Local 1500 Welfare Fund; and (8) Ruth Hollman. The Class Plaintiffs assert 17 claims against Defendants under both federal and state antitrust laws. The Generic Defendants comprise three sets of entities known as (1) Jazz; (2) Hikma; and (3) the Later Generic Defendants. Each set of the Defendants specifically comprises the following: a. The first set includes Jazz Pharmaceuticals Plc, Jazz Pharmaceuticals, Inc., and Jazz Pharmaceuticals Ireland Limited (together, Jazz). Jazz owns patents that claim aspects of Xyrem and its use; b. The second set of Defendants—which together are known as Hikma—includes Hikma Labs, Inc. (formerly known as Roxane Laboratories, Inc.), Hikma Pharmaceuticals USA Inc. (formerly known as West-Ward Pharmaceuticals Corp.), Eurohealth (USA), Inc., and Hikma Pharmaceuticals plc. Hikma was the first to file an ANDA to market a generic version of Xyrem; and c. The third set of Defendants includes Amneal Pharmaceuticals LLC (Amneal), Par Pharmaceuticals, Inc. (Par), and Lupin Ltd, Lupin Pharmaceuticals Inc., and Lupin, Inc. (together, Lupin). These Defendants were among the generic manufacturers who filed ANDAs after Hikma. CAC ¶ 183. Together, Amneal, Par, and Lupin are known as the Later Generic Defendants. On March 19, 2021, the Court noted that the CAC—which sets forth 17 causes of action against 12 Defendants -- is unmanageably large. The Court thus ordered the Class Plaintiffs and the Defendants to jointly identify "10 selected causes of action" to be litigated through resolution. The Class Plaintiffs and the Defendants filed their joint notice identifying 10 selected causes of action ("Selected Claims") on March 29, 2021. The Selected Claims are the following: CAC Count 1 - Violation of 15 U.S.C. Section 1 (against Jazz and Hikma); CAC Count 5 - Violation of 15 U.S.C. Section 1 (against all Defendants); CAC Count 6 - Violation of 15 U.S.C. Section 2 (against Jazz); CAC Count 7 - Conspiracy and Combination in Restraint of Trade Under State Law (against Jazz and Hikma); CAC Count 8 - Conspiracy and Combination in Restraint of Trade Under State Law (against Jazz and Amneal); CAC Count 9 - Conspiracy and Combination in Restraint of Trade Under State Law (against Jazz and Lupin); CAC Count 10 - Conspiracy and Combination in Restraint of Trade Under State Law (against Jazz and Par); CAC Count 11 - Conspiracy and Combination in Restraint of Trade Under State Law (against all Defendants); CAC Count 12 - Monopolization and Monopolistic Scheme Under State Law (against Jazz); CAC Count 17 - For Declaratory and Injunctive Relief for Violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. Sections 1, 2, and Section 16 of the Clayton Act, 15 U.S.C. Sections 1-2, 26 (against all the Defendants). Meanwhile, on March 24, 2021, Plaintiff United HealthCare Services, Inc.informed the Court that United's individual action against the same Defendants would soon be transferred to the instant multidistrict litigation. In response on March 30, 2021, the Court ordered the parties to address the overlap between (1) United's claims and (2) the Selected Claims. On April 2, 2021, United represented that its claims "largely overlap with the class action claims and advance materially the same theories of liability." United, thus, agreed to initially litigate through resolution only the claims that overlap with the Selected Claims. Accordingly, on April 7, 2021, the Court "ordered that United will initially litigate only the Selected Claims. After the resolution of the Selected Claims, the Court will discuss with United and Class Plaintiffs the remaining causes of action. United's claims relationship to the Selected Claims are as follows: UHS Count 1 overlaps with CAC Count 1 - Violation of 15 U.S.C. Section 1 (against Jazz and Hikma); UHS Count 5 overlaps with CAC Count 5 - Violation of 15 U.S.C. Section 1 (against all Defendants); UHS Count 6 overlaps with CAC Count 6 - Violation of 15 U.S.C. Section 2 (against Jazz); UHS Counts 8 and 9 overlap with CAC Count 11 - Conspiracy and Combination in Restraint of Trade Under State Law (against all the Defendants). However, UHS Count 9 is limited to the extent it overlaps with the Class Plaintiffs' Selected Claims; UHS Count 7 overlaps with CAC Count 12 - Monopolization and Monopolistic Scheme Under State Law (against Jazz); UHS Count 11 overlaps with CAC Count 17 - For Declaratory and Injunctive Relief for Violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. Sections 1, 2, and Section 16 of the Clayton Act, 15 U.S.C. Sections 1-2, 26 (against all the Defendants). On April 22, 2021, the Defendants filed the instant motion to dismiss the Selected Claims. On May 20, 2021, SectionClass Plaintiffs and United (together, "Plaintiffs") filed their consolidated opposition to the Defendants' motion to dismiss. The Defendants filed their reply on June 10, 2021. Discussion The Plaintiffs purchase or provide reimbursement for Xyrem nationwide. They allege that Jazz has overcharged for Xyrem and will continue to do so. Specifically, the Plaintiffs allege that Jazz has unlawfully blocked generic entry into the Xyrem market through at least July 1, 2023. They thus seek treble damages and injunctive relief under federal and state antitrust laws, including Sections 1 and 2 of the Sherman Act (15 U.S.C. Sections 1 and 2). Because the Plaintiffs bring at least 17 claims against 12 Defendants, only 10 claims ("Selected Claims") will be initially litigated through resolution. The Defendants move to dismiss the Selected Claims on six grounds. First, the Defendants argue that Jazz's settlements with Hikma and each of the Later Generic Defendants (Amneal, Par, and Lupin) are not unlawful reverse settlements under FTC v. Actavis, Inc., 570 U.S. 136 (2013). Second, the Defendants argue that the Plaintiffs inadequately plead an overarching antitrust conspiracy or unlawful market allocation. Third, the Defendants argue that the Plaintiffs fail to allege antitrust injury. Fourth, the Defendants argue that the Plaintiffs' monopolization claims under Sherman Act Section 2 are barred by the Noerr-Pennington doctrine. Fifth, the Defendants argue that the Plaintiffs lack antitrust standing to pursue damages for violations of federal antitrust law. Lastly, the Defendants argue that the Plaintiffs' state law claims fail. A. Plaintiffs adequately plead unlawful reverse payments to Hikma (CAC Counts 1 and 7; UHS Counts 1, 5, and 8) and the Later Generic Defendants (CAC Counts 8-10; UHS Counts 5, 7, and 8). The Defendants argue that the Plaintiffs inadequately plead that Jazz made unlawful reverse payments to Hikma and the Later Generic Defendants. As to Hikma, the Defendants argue that Jazz's settlement was not a "no authorized generic" agreement ("no-AG" agreement). Specifically, although Jazz promised that Hikma would be the exclusive third-party licensee of AG, Jazz could theoretically compete with Hikma AG by marketing a Jazz AG. As for the Later Generic Defendants, the Defendants argue that Jazz did not make reverse payments to Amneal, Par, or Lupin. Judge Koh finds that AB-rated generics are manufactured and sold by generic drug manufacturers -- and for about 15% of the brand name drug's price. AGs, by contrast, are often manufactured by the brand manufacturer itself because AGs are simply the brand name drug but relabeled. AGs are then marketed as a "generic" only with the brand manufacturer's permission (or, rarely, by the brand manufacturer itself). Lastly, when AB-rated generics and AGs compete during the first filer's 180-day exclusivity period, that competition lowers generic drug prices by about 15%. The Judge then holds that the Plaintiffs adequately allege that the Jazz-Hikma agreement contains an implicit "no-AG" agreement (CAC Counts 1 and 7; UHS Counts 1, 5, and 8). He finds that the Plaintiffs have plausibly alleged at least three reverse payments in the Jazz-Hikma agreement: (1) Jazz's six-month delay on third-party licensing; (2) the escalating royalty structure for Hikma's AG sales; and (3) an acceleration clause that deters generic entry and enforces collusion among all the Defendants. The alleged estimated value to Hikma of the Jazz-Hikma agreement is over $480 million just in the first six months after Hikma launches its AG. This is more than enough to support a reverse payment claim under Actavis. Accordingly, the Judge the Defendants' motion to dismiss the Plaintiffs' reverse payment claims (CAC Counts 1 and 7; UHS counts 1, 5, and 8). The Plaintiffs also allege that the Later Generic Defendants (Par, Lupin, and Amneal) received large unjustified payments from Jazz. These reverse payments took three forms. First, Jazz made multi-million-dollar cash payments to each Later Generic Defendant-ostensibly for Jazz's avoided litigation costs. Second, Jazz gave each Later Generic Defendant a limited license to sell a constrained supply of AG. Third, Jazz's agreements with each Later Generic Defendant contained acceleration clauses like the acceleration clause in the Jazz-Hikma agreement. The Defendants offer two arguments for dismissing the reverse payment allegations against the Later Generic Defendants. The Defendants first argue that Jazz did not make any reverse payments to the Later Generic Defendants. Instead, in Defendants' telling, "Jazz's agreements with the Later Generic Defendants simply permit those companies to enter the market before patent expiry, first with volume-limited AG sales and then with full entry 2.5 years later. The Defendants' other argument is that, even if the Plaintiffs have alleged reverse payments, those payments are not "large" and "unexplained." Judge Koh holds that the Plaintiffs adequately allege that Jazz's settlements with the Later Generic Defendants contain reverse payments (CAC Counts 8-10; UHS Counts 5, 7, and 8). She finds that the Defendants are wrong that the Plaintiffs have not alleged any "payments." The Judge says, the Defendants ignore the alleged cash payments and acceleration clauses -- either of which may constitute actionable reverse payments. In addition, the Judge holds that the Defendants' demand for a more precise valuation of non-cash payments (such as the AG licenses) is unjustified. The Plaintiffs allege non-cash payments that are both extremely valuable and exceed alleged litigation costs. Specifically, the Plaintiffs plausibly estimate that each percent of market share allocated to the Generic Defendants represents about $13.5 million per year: A calculation based on Xyrem's annual sales discounted by 10% for price competition even in an allegedly collusive market. Jazz allegedly allocated several percentage points of market share to each Later Generic Defendant. The resulting estimate of value is $13.5 million multiplied by each percent of market share -- i.e., "tens of millions of dollars" to each Later Generic Defendant. At this early stage in the litigation, it is estimate is sufficient. B. Plaintiffs adequately plead an overarching antitrust conspiracy (CAC Counts 5 and 11; UHS Counts 5, 7, and 8) that unlawfully allocates the Xyrem market (CAC Counts 8-10; UHS Counts 5, 7, and 8). The Defendants' second ground for dismissal is that Plaintiffs fail to plead either (1) an overarching antitrust conspiracy; or (2) an unlawful horizontal market allocation. Judge Koh agrees that the alleged market allocation is not per se unlawful, but otherwise disagrees with the Defendants. She analyzes the Plaintiffs' allegations of conspiracy followed by market allocation. First, Judge Koh holds that the Plaintiffs adequately allege an overarching conspiracy among all the Defendants. She finds that Jazz's agreements with each Generic Defendant included "economic actions and outcomes that are largely inconsistent with unilateral conduct." It is thus plausible that Defendants "had reason to believe that their own benefits derived from the operation were probably dependent upon the success of the entire venture." Accordingly, the Plaintiffs have plausibly pled an overarching conspiracy to allocate the Xyrem market. In fact, if Jazz's agreements had not settled patent lawsuits, they would be "condemned as per se unlawful." Second, the Judge holds that the Plaintiffs adequately allege that Jazz's settlements with the Later Generic Defendants are market allocation agreements (CAC Counts 8-10; UHS Counts 5, 7, and 8) under the rule of reason. She finds that the Defendants are wrong that Jazz's volume-limited licenses are "generally exempt from antitrust scrutiny." She says, those licenses receive antitrust scrutiny under the rule of reason. Accordingly, the Judge grants in part and denies in part the Defendants' motion to dismiss the Plaintiffs' market allocation claims. Specifically, she only dismisses United's market allocation claims to the extent they allege that Jazz's licenses are antitrust violations per se. Lastly, because such per se allegations are legally futile, the Judge dismisses them with prejudice. Lastly, the Judge holds that Count 5 of the CAC and the UHS Complaint adequately notify the Defendants of the challenged misconduct. She finds that on April 2, 2021, United represented that its claims "largely overlap with the class action claims and advance materially the same theories of liability. "United thus agreed to initially litigate through resolution only the claims that overlap with the Selected Claims. One of the claims that United publicly noticed was "Count 5" of its complaint, which had been filed on March 18, 2021 in Case No. 21-CV-02710-LHK, ECF No. 1. On April 7, 2021, the Court adopted United's proposal on which of United's claims should be first litigated through resolution. That adopted proposal included UHS Count 5. All told, the Defendants have received fair notice of the Plaintiffs' conspiracy claims. C. Plaintiffs adequately plead antitrust injury (CAC Counts 1, 5, 6, and 12; UHS Counts 1, 5, 6, and 11). The Defendants' third ground for dismissal is that the Plaintiffs inadequately plead antitrust injury. For context, to bring a federal antitrust claim, a private plaintiff must allege "antitrust injury." The Defendants make two arguments why "the complained-of-settlement agreements" did not cause the Plaintiffs antitrust injury. They first argue that the "Plaintiffs fail to allege the Generic Defendants would have surmounted Jazz's patent portfolio." They next argue that, because the Later Generic Defendants may start to sell AGs in July 2023, the Jazz's settlements with the Later Generic Defendants will not prolong the period of supra-competitive prices. Judge Koh holds that neither argument is persuasive. She finds that at the motion to dismiss stage, the Plaintiffs need not allege how the Generic Defendants would have prevailed in the patent lawsuits against Jazz. The Plaintiffs have plausibly alleged reverse payments that, under Actavis, "suggest that Jazz has serious doubts about the patents' survival." Accordingly, the Plaintiffs need not detail how the Generic Defendants would have prevailed in the patent litigations. Rather, the Plaintiffs' reverse payment allegations are enough to plead an antitrust injury. In short, "it is normally not necessary to litigate patent validity to answer the antitrust question." The Judge also holds that the Plaintiffs adequately plead that the Later Generic Defendants caused antitrust injury. She says, the Plaintiffs plausibly allege how Jazz's reverse payment settlements with the Later Generic Defendants delayed generic competition that otherwise would have occurred, thereby injuring consumers and entities, such as the Plaintiffs, who pay for Xyrem. "Remove the pay, remove the delay." Accordingly, the Plaintiffs have adequately pled that Jazz's settlements caused antitrust injury. D. Noerr-Pennington doctrine does not require dismissal of Plaintiffs' monopolization claims under Sherman Act Section 2 (CAC Count 6 and UHS Count 6). As their fourth ground for dismissal, the Defendants contend the Noerr-Pennington doctrine requires dismissal of the Plaintiffs' monopolization claims under Sherman Act Section 2. Under the Noerr-Pennington doctrine, those who petition the government for redress are generally immune from antitrust liability. This "right to petition extends to all departments of the Government, including the courts. This sham exception has two elements. First, the petition at issue "must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits." Second, the petitioner's "subjective motivation" must have been "to thwart competition." Judge Koh holds that Noerr-Pennington doctrine does not require dismissal of the Plaintiffs' monopolization claims under Sherman Act Section 2. She finds that (i) the Plaintiffs plausibly allege that Jazz's REMS-related petitioning to the FDA meets the sham exception to Noerr-Pennington immunity; (ii) the Plaintiffs have thus conceded that their citizen petition allegations are time-barred; and (iii) it is plausible that Jazz brought lawsuits pursuant to an anticompetitive policy. The Judge therefore denies the Defendants' motion to dismiss CAC Count 6 and UHS Count 6 on this ground. E. Plaintiffs inadequately plead federal antitrust standing for damages (CAC Counts 5, 6, and 12; UHS Counts 1, 5, 6, and 11). According to the Defendants, the Plaintiffs' federal antitrust claims for damages fail because they are indirect purchasers who lack antitrust standing. They note that the Plaintiffs do not allege -- nor can they -- that they purchased Xyrem from any named Defendant and therefore cannot claim to be direct purchasers. Rather, the Plaintiffs purchased Xyrem from a non-party, Express Scripts." Express Scripts is the exclusive pharmacy for Xyrem. Thus, in the Defendants' view, Illinois Brick Co. v. Illinois, 431 U.S. 720, 746 (1977) and Apple Inc. v. Pepper, 139 S.Ct. 1514 (2019) bar the Plaintiffs' federal antitrust claims for damages. The Plaintiffs offer three arguments in response, but none is persuasive on the pleadings. The first argument is that the Plaintiffs' federal damages claims must survive because the rationale underlying Illinois Brick was to promote private antitrust claims, not discourage them. Second, according to the Plaintiffs, In re National Football League's Sunday Ticket Antitrust Litigation, 933 F.3d 1136 (9th Cir. 2019), allows antitrust damages claims to proceed whenever Plaintiffs allege an antitrust conspiracy. Third and most significantly, the Plaintiffs argue that Express Scripts is "owned or controlled" by Jazz. All told, Judge Koh finds that none of the Plaintiffs' cited authority is persuasive. She therefore must heed the Supreme Court's rule that "they should not engage in 'an unwarranted and counterproductive exercise to litigate a series of exceptions'" to Illinois Brick. Accordingly, she grants the Defendants' motion to dismiss the Plaintiffs' federal antitrust claims for damages. However, because granting the Plaintiffs leave to amend would not be futile, cause undue delay, or unduly prejudice the Defendants, and the Plaintiffs have not acted in bad faith, the Judge dismisses with leave to amend the Plaintiffs federal antitrust claims for damages. F. Plaintiffs' state law claims survive Defendants' motion to dismiss (CAC Counts 7-12; UHS Counts 7-9). The Defendants briefly argue that the Plaintiffs' state law claims fail on three grounds. First, they argue that the state law claims fail on the merits for the same reason that the federal claims purportedly fail on the merits. Second, they argue Illinois, New Hampshire, Connecticut, Puerto Rico, and Utah have adopted Illinois Brick's bar against lawsuits by indirect purchasers. Third, the Defendants argue that the Plaintiffs lack Article III standing within Hawaii, North Dakota, Vermont, Wyoming, and Puerto Rico. First, Judge Koh holds that Class Plaintiffs cannot maintain their class claims against the Defendants under Illinois law. By contrast, as an individual plaintiff, United may proceed with any indirect purchaser claim under Illinois law. Second, the Judge says the Plaintiffs' claims under New Hampshire law may proceed. The current version of N.H. Rev. Stat. Section 356:11 provides that "any person" may bring suit "regardless of whether that person dealt directly or indirectly with the defendant." Third, the Plaintiffs allege that Jazz's anticompetitive agreements will maintain Jazz's unlawful monopoly "through at least Jan. 1, 2023." Regardless, "arguments raised for the first time in a reply brief are waived." Thus, the Plaintiffs' Connecticut law claims may proceed. Fourth, the indirect purchasers have antitrust standing under Puerto Rico law. Finally, because the Class Plaintiffs do not personally satisfy the citizenship or residency requirement of the Utah Antitrust Act, they "may not seek relief for their own injuries under" the Utah Antitrust Act. Yet the Class Plaintiffs' class claims on behalf of Utah citizens or residents "need not be stricken or disregarded." G. Plaintiffs have Article III standing. Finally, the Defendants argue that the Plaintiffs lack Article III standing to bring claims under the laws of five jurisdictions: Hawaii, North Dakota, Vermont, Wyoming, and Puerto Rico. They reason that the Plaintiffs have failed to allege that any Plaintiff "paid for and/or provided reimbursement for Xyrem in" those five jurisdictions. Judge Koh disagrees. She finds that the Class Plaintiffs have Article III standing to represent individuals affected by Xyrem overcharges in at least the five jurisdictions that Defendants challenge. Whether the Class Plaintiffs are typical representatives of such individuals -- or whether all these individuals together satisfy Rule 23(b)(3) predominance -- is a question for class certification. As to United, the Judge holds that the Defendants' standing argument is inapposite. United, as a third-party payor, paid for and/or provided reimbursement for United members "in all 50 states, the District of Columbia, and Puerto Rico." United therefore has Article III standing where its members transacted with a pharmacy to obtain Xyrem. The Defendants do not argue otherwise. In short, the Plaintiffs have adequately pleaded Article III standing. Conclusion For the foregoing reasons, Judge Koh grants in part and denies in part the Defendants' Motion to Dismiss Counts 1, 5-12, and 17 of the Consolidated Class Action Complaint and Counts 1, 5-9, and 11 of United Healthcare Services' Complaint. Specifically, she grants the motion to dismiss the following with prejudice: a. In UHS Counts 5, 7, and 8: United's market allocation claims to the extent they allege that Jazz's licenses are antitrust violations per se. b. In CAC Count 6; UHS Count 6; and any related state law Counts (CAC Counts 7-12; UHS Counts 7-9): Plaintiffs' allegations against Jazz's citizen petitions to the FDA. The Judge grants the motion to dismiss the following with leave to amend: a. In CAC Counts 5, 6, and 12; UHS Counts 1, 5, 6, and 11: Plaintiffs' federal antitrust claims for damages. b. In CAC Counts 7-12; UHS Counts 7-9: Class Plaintiffs' class claims under Illinois law and individual claims under Utah law. The Judge denies the motion to dismiss as to all remaining claims. Should the Plaintiffs elect to file one consolidated amended complaint curing the deficiencies identified, the Plaintiffs will do so within 30 days of the date of the Order. Failure to meet the 30-day deadline to file an amended complaint or failure to cure the deficiencies identified in the Order or the Defendants' motion to dismiss will result in dismissal of the deficient claims with prejudice. The Plaintiffs may not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15. The Plaintiffs are directed to file redlines comparing the CAC and UHS complaint to any amended complaint as an attachment to the Plaintiffs' amended complaint. A full-text copy of the Court's Aug. 13, 2021 Order is available at https://tinyurl.com/4mw9ts from Leagle.com. MEDEX WASTE: Fianna Family Files TCPA Suit in W.D. Arkansas ----------------------------------------------------------- A class action lawsuit has been filed against MedEx Waste, Inc. The case is styled as Fianna Family Dentistry, PLC, Individually and on behalf of other similarly situated v. MedEx Waste, Inc., Case No. 2:21-cv-02136-PKH (W.D. Ark., Aug. 24, 2021). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Medex Waste -- http://www.medexwaste.com/-- is one of the fastest growing waste removal service providers in the Southern and Southeastern United States and now offers medical waste disposal services across United States.[BN] The Plaintiff is represented by: Jason Ryburn, Esq. RYBURN LAW FIRM 650 South Shackleford Road, Suite 231 Little Rock, AR 72211 Phone: (501) 228-8100 Fax: (501) 228-7300 Email: jason@ryburnlawfirm.com MERCHANTS' CREDIT: Ct. Enters Initial Pretrial Conference Order --------------------------------------------------------------- In the class action lawsuit captioned as RANAE PELTONEN, on behalf of herself and others similarly situated, v. MERCHANTS' CREDIT GUIDE CO., Case No. 3:21-cv-00322-jdp (W.D. Wisc.), the Hon. Judge Stephen L. Crocker entered a preliminary pretrial conference order: Amendments to the pleadings: October 22, 2021 Disclosure of experts: Plaintiff: November 12, 2021 Defendant: January 10, 2022 Motion & Brief To Certify Classes: February 4, 2022 This is the deadline for plaintiffs to seek certification of a Rule 23 class. Responses: March 7, 2022 Replies: March 21, 2022 Discovery Cutoff: July 22, 2022 Deadline for filing dispositive August 19, 2022 motions: Settlement Letters: January 6, 2023 Rule 26(a)(3) Disclosures and January 13, 2023 all motions in limine: Objections: February 3, 2023 Final Pretrial Conference: February 15, 2023 Trial: February 21, 2023 Merchants' Credit operates as a debt collection agency. A copy of the Court's order dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3yiernh at no extra charge.[CC] MERIT MEDICAL: Consolidated Class Suit Underway in California ------------------------------------------------------------- Merit Medical Systems, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a consolidated class action suit entitled, In re Merit Medical Systems, Inc. Securities Litigation. On December 5, 2019, the Bucks County Employees Retirement Fund filed a complaint against Merit, its Chief Executive Officer and its Chief Financial Officer in the United States District Court for the Central District of California, individually and on behalf of all purchasers of our common stock between February 26, 2019 and October 30, 2019. On February 24, 2020, the court appointed the City of Atlanta Police Pension Fund, the Atlanta Firefighters' Pension Fund, and the Employees' Retirement System of the City of Baton Rouge and Parish of East Baton Rouge as Lead Plaintiffs. This action is now captioned In re Merit Medical Systems, Inc. Securities Litigation (Master File No. 8:19-cv-02326-DOC-ADS). On June 30, 2020, Lead Plaintiffs filed a consolidated class action complaint for violations of federal securities laws against Merit, our Chief Executive Officer and our Chief Financial Officer in the United States District Court for the Central District of California, individually and on behalf of all purchasers of our common stock between February 26, 2019 and October 30, 2019. The consolidated class action complaint alleges that defendants violated Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, and seeks unspecified damages, costs and attorneys' fees, and equitable relief. The company filed a motion to dismiss the action, which the Court denied. Merit Medical said, "We intend to vigorously defend against the lawsuit. We have not recorded an expense related to this matter because any potential loss is not currently probable or reasonably estimable. Additionally, we cannot presently estimate the range of loss, if any, that may result from the matter. It is possible that the ultimate resolution of the foregoing matter, or other similar matters, if resolved in a manner unfavorable to us, may be materially adverse to our business, financial condition, results of operations or liquidity." Merit Medical Systems, Inc. manufactures and markets products used in diagnostic and interventional cardiology and radiology procedures. The Company's primary products include inflation devices, guide wires, thrombolytic catheters and fluid dispensing systems, and angiography accessories, among others. Merit's products are sold worldwide. The company is based in South Jordan, Utah. MIDAMERICAN ENERGY: Matousek Appeals ERISA Suit Dismissal ---------------------------------------------------------- Plaintiffs Daniel Matousek, et al., filed an appeal from a court ruling entered in the lawsuit styled DANIEL C. MATOUSEK, TERESA J. CANTU and LEAH M. MALONEY, individually and on behalf of all others similarly situated v. MIDAMERICAN ENERGY COMPANY, THE BOARD OF DIRECTORS OF MIDAMERICAN ENERGY COMPANY, THE PENSION AND EMPLOYEE BENEFITS PLANS ADMINISTRATIVE COMMITTEE OF MIDAMERICAN ENERGY COMPANY and JOHN DOES 1-30, Case No. 4:20-cv-00352-CRW, in the U.S. District Court for the Southern District of Iowa - Central. As reported in the Class Action Reporter on Nov. 30, 2020, the lawsuit is a class action brought pursuant to Sections 409 and 502 of the Employee Retirement Income Security Act of 1974 against the MidAmerican Energy Company Retirement Savings Plan's fiduciaries and its members during the Class period for breaches of their fiduciary duties. The Plaintiffs allege that during the putative Class Period, from November 13, 2014 through the date of judgment, the Defendants, as "fiduciaries" of the MidAmerican Energy Company Retirement Savings Plan, as that term is defined under ERISA, breached the duties they owed to the plan, to Plaintiffs, and to the other participants of the plan by, inter alia, (1) failing to objectively and adequately review the plan's investment portfolio with due care to ensure that each investment option was prudent, in terms of cost; and (2) maintaining certain funds in the plan despite the availability of similar investment options with lower costs and/or better performance histories; and (3) failing to control the plan's recordkeeping costs. The Defendants' mismanagement of the plan, to the detriment of participants and beneficiaries, constitutes a breach of the fiduciary duties of prudence and loyalty, in violation of 29 U.S.C. Section 1104. Their actions were contrary to actions of a reasonable fiduciary and cost the plan and its participants millions of dollars, the suit says. The Plaintiffs now seek a review of the Court's Order dated July 2, 2021 and Judgment dated July 6, 2021, granting Defendants' motion to dismiss for failure to state a claim. The appellate case is captioned as Daniel Matousek, et al. v. MidAmerican Energy Company, et al., Case No. 21-2749, in the United States Court of Appeals for the Eighth Circuit, filed on August 5, 2021. The briefing schedule in the Appellate Case states that: -- Transcript is due on or before September 14, 2021; -- Appendix is due on September 24, 2021; -- BRIEF APPELLANT, Teresa J. Cantu, Leah M. Maloney and Daniel C. Matousek is due on September 24, 2021; and -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant.[BN] Plaintiffs-Appellants Daniel C. Matousek, Teresa J. Cantu, and Leah M. Maloney, individually and on behalf of all others similarly situated, are represented by: David J. Bright, Esq. PUGH & HAGAN 425 E. Oakdale Boulevard, Suite 201 Coralville, IA 52241 Telephone: (319) 351-2028 E-mail: dbright@pughhagan.com - and - Mark K. Gyandoh, Esq. CAPOZZI & ADLER 312 Old Lancaster Road Merion Station, PA 19066 Telephone: (717) 233-4101 E-mail: markg@capozziadler.com - and - Donald R. Reavey, Esq. CAPOZZI & ADLER 2933 N. Front Street Harrisburg, PA 17110 Telephone: (717) 233-4101 E-mail: donr@capozziadler.com Defendants-Appellees MidAmerican Energy Company, The Board of Directors of MidAmerican Energy Company, and MidAmerican Energy Company Pension and Employee Benefits Plans Administrative Committee are represented by: Gregory R. Brown, Esq. DUNCAN & GREEN 380 Capital Square 400 Locust Street Des Moines, IA 50309-0000 Telephone: (515) 288-6440 E-mail: gbrown@duncangreenlaw.com - and - Stacey C.S. Cerrone, Esq. Lindsey H. Chopin, Esq. Howard Shapiro, Esq. JACKSON & LEWIS 650 Poydras Street, Suite 1900 New Orleans, LA 70130 Telephone: (504) 208-1755 E-mail: stacey.cerrone@jacksonlewis.com lindsey.chopin@jacksonlewis.com howard.shapiro@jacksonlewis.com MULTIPLAN CORP: One68 Global Master Appointed as Lead Plaintiff --------------------------------------------------------------- Multiplan Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the District Court appointed plaintiff One68 Global Master Fund, LP as lead plaintiff, in the putative securities class action suit entitled, teve Kong v. MultiPlan Corporation et al., No. 2:21-cv-3186 On June 4, 2021, a putative securities class action complaint captioned Steve Kong v. MultiPlan Corporation et al., No. 2:21-cv-3186 (E.D.N.Y.) was filed in the United States District Court for the Eastern District of New York. The Kong lawsuit is brought against the Company; its Chief Executive Officer, Mr. Mark Tabak, and its Chief Financial Officer, Mr. David Redmond, as well as individuals and entities involved in the Transactions, including Glenn August and Michael Klein, each of whom currently serve on the company's Board. The complaint asserts claims for violations of Sections 10(b), 14(a), and 20(a) of the Securities Exchange Act of 1934 and Rules 10b-5 and 14a-9 promulgated thereunder and seeks damages based on alleged material misrepresentations and omissions concerning the Transactions and in the company's public disclosures. The proposed class period is July 12, 2020, through November 10, 2020, inclusive. On June 21, 2021, the District Court appointed plaintiff One68 Global Master Fund, LP as lead plaintiff. Multiplan said, "We cannot reasonably estimate a potential future loss or a range of potential future losses and have not recorded a contingent liability accrual as of June 30, 2021." Multiplan Corporation is a leading value-added provider of data analytics and technology-enabled end-to-end cost management, payment and revenue integrity solutions to the U.S. healthcare industry. The company is based in New York, New York. MULTIPLAN CORP: Paradis Suit Voluntarily Dismissed -------------------------------------------------- Multiplan Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the putative securities class action complaint captioned Samuel Paradis v. MultiPlan Corporation et. al., No. 1:21-cv-1853 (E.D.N.Y.) filed on April 6, 2021 in the United States District Court for the Eastern District of New York was voluntarily dismissed on June 3, 2021. Multiplan Corporation is a leading value-added provider of data analytics and technology-enabled end-to-end cost management, payment and revenue integrity solutions to the U.S. healthcare industry. The company is based in New York, New York. MYLIFE.COM INC: Martinez Files ADA Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against MyLife.com, Inc. The case is styled as Pedro Martinez, individually and as the representative of a class of similarly situated persons v. MyLife.com, Inc., Case No. 1:21-cv-04779-ENV-RLM (E.D.N.Y., Aug. 24, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. MyLife -- https://www.mylife.com/ -- is an American information brokerage firm founded by Jeffrey Tinsley in 2002 as Reunion.com.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com NANTHEALTH INC: Bucks County Employees Retirement Suit Dismissed ---------------------------------------------------------------- NantHealth, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the court in Bucks County Employees Retirement Fund v. NantHealth, Inc., BC 662330, issued an order granting plaintiff's request and dismissing the action with prejudice. In May 2017, a putative class action complaint was filed in California Superior Court, Los Angeles County, asserting claims for violations of the Securities Act based on allegations similar to those in Deora v. NantHealth, Inc., 2:17-cv-01825. That case is captioned Bucks County Employees Retirement Fund v. NantHealth, Inc., BC 662330. At a case management conference on December 3, 2019, the parties informed the court of the pending settlement of the federal class action in the Deora action. During a status conference on February 4, 2021, the Court scheduled a further status conference for April 7, 2021 and stated that if Plaintiff did not voluntarily dismiss the action, the Court would entertain a motion to dismiss in light of the finalization of the Deora settlement. Plaintiff filed an unopposed request for voluntarily dismissal on March 15, 2021. On March 22, 2021, the court issued an order granting plaintiff's request and dismissing the action with prejudice. NantHealth, Inc., together with its subsidiaries, operates as a healthcare technology company in the United States and internationally. The company was founded in 2010 and is headquartered in Culver City, California. NantHealth, Inc. is a subsidiary of NantWorks, LLC. NATIONAL WESTERN: Bid to Stay Consolidated Baldwin Suit Denied -------------------------------------------------------------- National Western Life Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the court denied the parties joint motion to stay pending mediation in the consolidated suit entitled, Mildred Baldwin, on behalf of herself and others similarly situated vs. National Western Life Insurance Company. The Company was aware of two proposed class actions filed against National Western, Mildred Baldwin, on behalf of herself and others similarly situated vs. National Western Life Insurance Company, Missouri Circuit Court for the 18th Judicial Circuit (Pettis County) filed February 16, 2021, and Douglas Dyrssen Sr., individually and on behalf of all others similarly situated vs. National Western Life Insurance Company and National Western Life Group, Inc., United States District Court for the Eastern District of California filed March 8, 2021. The parties agreed to consolidate those two proposed class actions into a single proposed class action, Mildred Baldwin, on behalf of herself and others similarly situated vs. National Western Life Insurance Company, United States District Court for the Western District of Missouri. Baldwin is seeking an undetermined amount of damages, attorneys' fees and costs, injunctive relief, declaratory and other equitable relief, and enjoinment. National Western filed a Motion to Dismiss on July 16, 2021. On July 26, 2021, the parties filed a Joint Motion to Stay Pending Mediation, which the court denied. National Western said, "At this time, no prediction can be made as to the likelihood or amount of any recovery against National Western. It is possible other actions may be filed against the Company due to the data event. National Western Life Group, Inc. provides life insurance products for the savings and protection needs of policyholders and annuity contracts for the asset accumulation and retirement needs of contract holders. The company is based in Austin, Texas. NCR CORPORATION: Discovery in Schertzer Suit v. Cardtronics Ongoing ------------------------------------------------------------------- NCR Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that discovery is ongoing in the purported class action suit entitled, Kristen Schertzer, et al. v. Bank of America, N.A., et al., Case No. 3:19-cv-00264. On January 25, 2021, NCR entered into a definitive agreement to acquire all outstanding shares of Cardtronics plc for $39.00 per share (the "Cardtronics Transaction"). On March 1, 2019, Cardtronics plc was named as a defendant in a purported class action lawsuit stylized as Kristen Schertzer, et al. v. Bank of America, N.A., et al., Case No. 3:19-cv-00264, in the United States District Court for the Southern District of California, which alleges harm related to balance inquiry transactions. On September 28, 2020, the District Court issued a denial of Cardtronics' motion to dismiss and the matter is proceeding to the discovery phase. Due to the early stages of this matter, including uncertainty related to class certification and potential amount claimed by the class, Cardtronics is unable to determine if liability will arise from this matter or estimate the range of any potential liability. Cardtronics will vigorously defend this matter. NCR Corporation is a leading software- and services-led enterprise provider in the financial, retail, hospitality, and telecommunications and technology industries (T&T). NCR is a global company that is headquartered in Atlanta, Georgia. NEKTAR THERAPEUTICS: Damiba Class Suit Voluntarily Dismissed ------------------------------------------------------------ Nektar Therapeutics said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the "Damiba Plaintiffs" voluntarily dismissed their putative class action complaint. A putative securities class action was filed against the Company and certain of its executives in the U.S. District Court for the Northern District of California in August 2019 (Case No. 4-19-cv-05173, referred to as the Damiba action). The Damiba plaintiffs challenged public statements Nektar made, between February 2019 and May 2019, about its bempegaldesleukin clinical trials and collaboration with Bristol-Myers Squibb. After the Damiba plaintiffs filed an amended complaint and the defendants moved to dismiss, the court dismissed the action without prejudice in January 2021. The Damiba plaintiffs subsequently voluntarily dismissed the action, with prejudice, in March 2021. Nektar Therapeutics develops drug candidates for cancer, auto-immune disease, and chronic pain in the United States. Nektar Therapeutics was founded in 1990 and is headquartered in San Francisco, California. NEKTAR THERAPEUTICS: Mulquin Class Action Ongoing in California --------------------------------------------------------------- Nektar Therapeutics said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a putative securities class action suit entitled, Mulquin v. Nektar Therapeutics et. al. In October 2018, the company and certain of its executives were named in a putative securities class action complaint filed in the U.S. District Court for the Northern District of California (Case No. 18-cv—66-7-HSG, which the company refers to as the Mulquin action). The Mulquin plaintiffs have challenged public statements Nektar made, between January 2017 and June 2018, about the clinical trials of bempegaldesleukin. The Mulquin complaint was amended in May 2019. The defendants moved to dismiss and the court granted the motion without prejudice in July 2020. The Mulquin plaintiffs again amended their complaint and the defendants again moved to dismiss. In December 2020, the court dismissed the action with prejudice. The plaintiffs filed a notice of appeal in January 2021 and appellate briefing in the U.S. Court of Appeals for the Ninth Circuit is expected to be completed by September 2021. Nektar Therapeutics develops drug candidates for cancer, auto-immune disease, and chronic pain in the United States. Nektar Therapeutics was founded in 1990 and is headquartered in San Francisco, California. NEW YORK PAVING: Court Denies Diaz's Bid for Discovery Sanctions ---------------------------------------------------------------- In the case, EDGARDO DIAZ, Plaintiff v. NEW YORK PAVING INC., Defendant, Case No. 18 Civ. 4910 (ALC) (GWG) (S.D.N.Y.), Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York denied the Plaintiffs' motion for discovery sanctions under Rule 37 of the Federal Rules of Civil Procedure. Plaintiff Diaz, who performed road and sidewalk repairs for his employer, NY Paving, filed the action alleging violations under the Fair Labor Standards Act, 29 U.S.C. Section 201, et seq. ("FLSA"), and the New York State Labor Law, Section 190, et seq., Section 650, et seq. The complaint in the case, filed on June 3, 2018, alleged that Diaz and the class he sought to represent worked "more than 40 hours per week to service NY Paving's clients," but NY Paving "failed to pay its pavers the proper wages and overtime they are legally and justly owed." Diaz sought to bring "this action on behalf of himself and all similarly situated employees, both as a class action under Rule 23 and as a collective action under the FLSA." While the complaint contained broad allegations that referred to "pavers" without mentioning their location, the complaint specifically alleged that NY Paving had "locations at 37-18 and 37-28 Railroad Avenue, Long Island City, New York 11101," and challenged the Defendant's pay practices -- either explicitly or implicitly -- with respect to pavers at the Long Island City locations. The Complaint made no mention of any other NY Paving location besides those in Long Island City. The Complaint stated that Diaz was bringing a collective action "under the FLSA on behalf of himself and all other similarly situated current and former pavers employed by the Defendant at any time within the three years prior to the date of the filing of the action and thereafter." Diaz also made allegations on behalf of a putative Rule 23 class of pavers consisting of "all persons who were employed by NY Paving as pavers who, at any time within six years prior to the date of the filing of this action and thereafter, did not receive full compensation for all overtime and straight hours worked." Three other pavers then joined the suit, and the Plaintiffs moved to have the case conditionally approved as a collective action under 29 U.S.C. Section 216(b), asking for notice to be sent to "all New York Paving pavers employed since June 3, 2015," inviting them to join the action. The Court granted the Plaintiffs' motion on Dec. 4, 2018. While the decision made reference to affidavits of individuals who worked at the Long Island City yard, the opinion concluded broadly that "all NY Paving pavers employed since June 3, 2015, are similarly situated with respect to the claim made in the lawsuit," and thus ordered that notice be sent to those individuals. Because the Defendant provided information only about Long Island City pavers, however, notice was sent only to those pavers, not to "all" pavers as stated in the Court's decision. Discovery proceeded and the deadline for its conclusion was extended several times. The Plaintiffs have not yet filed their motion for certification under Rule 23. The current dispute was first mentioned to the Court on March 31, 2021, when the Plaintiffs asked for another extension of the discovery deadline "due to several as-yet unresolved discovery issues, some of which have only arisen recently," and identified one of those disputes as the "Defendant's Old Bethpage location." The Court granted the proposed extension. On June 1, 2021, the Plaintiffs filed a letter requesting a pre-motion conference on an anticipated motion for contempt and sanctions, alleging that NY Paving "willfully violated Your Honor's December 4, 2018 Opinion and Order because the Defendant hid from the Plaintiffs and the Court the existence of its separate NY Paving Long Island facility in Old Bethpage where more than a hundred pavers have worked since 2015, and Notice was never sent to those pavers." The Court waived the pre-motion conference requirement and instructed the Plaintiffs to submit a motion containing "the requests for relief under Rule 37," with any "motion for contempt" to "await the disposition of the motion under Rule 37." Discussion The Plaintiffs argue that NY Paving has "egregiously and systematically concealed its Old Bethpage facility from the Plaintiffs and from the Court," and that this behavior violates Rule 37(c)(1) because NY Paving failed "to provide full and truthful information in response to the Plaintiffs' discovery requests." They argue that their discovery requests should have resulted in NY Paving producing documents related to the Old Bethpage facility, but that NY Paving never produced any such documents and represented that "it was not withholding any responsive documents," when, in fact, it was. They argue that this behavior "constitutes bad faith and intentional concealment of members of the certified Collective and proposed Class Members," and thus "necessitates severe sanctions." The Plaintiffs ask the Court to enter judgment against NY Paving "as to all claims of the Collective and Class Members who worked at Old Bethpage," along with "deeming all pavers employed at Old Bethpage since June 3, 2012 to be opt-in members of the already-certified Collective and also deem them similarly situated as Rule 23 class members," while sending notice "to all current and former pavers based in Old Bethpage during the three-year period prior to the filing of the Complaint to present." In the alternative, the "Plaintiffs ask for an adverse inference that all pavers employed at concealed facilities were required to do preliminary and postliminary work," as well as "bring the company's vehicles" to and from "the yard each day without pay." They ask that NY Paving be required to disclose any other locations with pavers, and if any exist, those pavers be awarded the same relief. They also seek to bar NY Paving from using any evidence from undisclosed facilities to support its case and seek costs and fees for the motion. In opposition, NY Paving does not deny that it did not identify the Old Bethpage location in its discovery responses. Instead, it argues that "based on Wittels' limitation on the scope of this matter, the Defendant complied with the requirements of Fed. R. Civ. P. 26 by providing all relevant information about Long Island City, subject to properly and timely raised objections." It also argues that even if it did not comply, sanctions are not warranted. A. Whether Plaintiffs' Counsel Knew About the Old Bethpage Facility Before 2021 In light of the Plaintiffs' uncontradicted, sworn assertion of a lack of knowledge concerning NY Paving's Old Bethpage location, combined with the lack of any reason why counsel would fail to act on any such knowledge, Judge Gorenstein finds that the Plaintiffs were in fact unaware of the Old Bethpage location before February or March 2021. Among other things, the Judge rejects NY Paving's contention that the Plaintiffs or their counsel acted improperly with respect to the Old Bethpage location. NY Paving provides only the wispiest of speculation and the weakest of inferences to support its assertion that the Plaintiffs' counsel realized before March or February of 2021 that pavers were employed at the Old Bethpage location. None of the material proffered by the Defendant allows a finding in NY Paving's favor on this question. Furthermore, the essentially non-existent evidence relied on by NY Paving is plainly outweighed by the sworn statement provided by the Plaintiffs' counsel to the contrary. B. Whether Defendant Breached Its Discovery Obligations Judge Gorenstein now considers whether NY Paving breached its discovery obligations by failing to disclose any information related to the Old Bethpage location to the Plaintiffs such that sanctions are warranted under Fed. R. Civ. P. 37(c). Rule 37(c) is breached when "a party fails to provide information or identify a witness as required by Rule 26(a) or (e)." First, the Judge finds that the Defendant could reasonably have assumed that the claims it had to defend against were limited to those involving Long Island City pavers and thus that it was not required to produce witnesses or documents relating to the allegations about pavers at Old Bethpage. Therefore, NY Paving did not violate Rule 26(a). Second, while the Judge finds the Defendant's responses to some of these requests to be awkwardly written, the Judge finds that the responses reflect a passable effort to indicate that whatever documents were being provided were limited to the claims of the Plaintiffs and the opt-in plaintiffs -- all of whom worked at the Long Island City facility. Whether or not the Defendant should have made this limitation, it at least did so explicitly. Thus, the Plaintiffs could have challenged the Defendant's "construction" of their RFP. On the other hand, the Judge understands why the Plaintiffs did not do so as it undoubtedly did not occur to them that there were pavers who worked anywhere other than the location where the Plaintiffs and opt-ins worked. The conclusion that a sanction is not appropriate under Rule 37 is strengthened by considering what would be required to place the Plaintiffs in "the position they would have occupied but for the breach of discovery obligations," which is one of the primary purposes of a Rule 37 sanction. Had NY Paving disclosed the existence of the Old Bethpage location at the beginning of the case, the Plaintiffs would not necessarily have obtained any discovery about activities in that location, for the reasons just described. Notwithstanding these circumstances, the Plaintiffs essentially ask the Court to presume that, had the Defendant disclosed the Old Bethpage location initially, the Plaintiffs would have investigated that location and would have found conditions of employment similar to those alleged at the Long Island City location. But it is simply speculative to believe that this would have been the outcome. Thus, the case differs from those cited by the Plaintiffs in support of their motion because in those cases the relevance of the withheld information was clear. By contrast, the relevance of information or documents as to Old Bethpage is unknown. Conclusion Judge Gorenstein holds that the conclusion that a sanction under Rule 37 should not issue is unfortunately the best of a number of not fully satisfactory responses to the Defendant's conduct. The Judge remains troubled that NY Paving carefully crafted its discovery responses to avoid having the Plaintiffs learn about the Old Bethpage worksite. That there was a deliberate effort to keep the Plaintiffs in the dark about Old Bethpage is evidenced by the Defendant's response to the Plaintiffs' request under 29 U.S.C. Section 216(b) for an order notifying "all pavers" employed by the Defendant of the collective action. The normal response by a defendant to a request by an FLSA plaintiff for an overbroad order is to argue during the course of briefing that the definition of the proposed collective must be narrowed -- and to give reasons why the proposed wording improperly sweeps in worksites where the plaintiffs did not work. Indeed, such arguments are routine in collective action motions under the FLSA -- and would likely have been successful in the case. Instead, the Defendant was silent about the scope of the proposed collective and, once the requested language was adopted by the Court, chose to continue its silence and "interpret" that language in a manner contrary to its plain terms. The Defendant never explains why it failed to oppose the Plaintiffs' request that "all pavers" be included in the collective action as opposed to just pavers at Long Island City. It also fails to explain why it could properly take it upon itself to not follow a court order that required that notice be sent to and information provided as to "all pavers." That being said, Judge Gorenstein does not believe a discovery sanction is warranted for the reasons already stated -- and most obviously because the Judge cannot find that the course of the lawsuit would have altered had the Defendant forthrightly disclosed the fact that other pavers existed. For these reasons, the Plaintiffs' motion for sanctions under Fed. R. Civ. P. 37 is denied. A full-text copy of the Court's Aug. 11, 2021 Opinion & Order is available at https://tinyurl.com/2cptk79k from Leagle.com. NEXTERA ENERGY: Averts Suit Over Kansas Wind Generation Project --------------------------------------------------------------- Maya Earls, writing for BloombergLaw, reports that energy companies and the federal government won't face a class action challenging a wind generation project in Kansas after a federal judge in Washington, D.C., ruled the court lacks jurisdiction over the claims. The lawsuit alleged NextEra Energy Inc., Evergy Kansas, and Soldier Creek Wind LLC were negligent in building the Soldier Creek Wind Project in Nemaha County, Kan., and sought relief against the Federal Energy Regulatory Commission and the Federal Aviation Administration, among other federal entities. [GN] OH MY GREEN: $500K Class Settlement in Kastler Suit Has Prelim. OK ------------------------------------------------------------------ In the case, ANNE KASTLER, et al., Plaintiffs v. OH MY GREEN, INC., Defendant, Case No. 19-cv-02411-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the Northern District of California grants the Plaintiffs' motion for preliminary approval of class action settlement. On Feb. 28, 2019, Plaintiff Kastler filed a wage and hour putative class action complaint against Defendant Oh My Green, now known as Garten, Inc., in the San Mateo County Superior Court. Plaintiff Kastler was employed by the Defendant as an hourly, non-exempt employee in California from approximately November 2016 to February 2017. The Defendant removed the case to federal court on May 2, 2019. On May 9, 2019, the Defendant filed a motion to dismiss, which the Court dismissed as moot after Plaintiff Kastler filed a First Amended Complaint ("FAC") on May 23, 2019. The FAC asserted eight causes of action for violations of (1) California Labor Code sections 510 and 1198 (unpaid overtime); (2) California Labor Code sections 226.7 and 512(a) (unpaid meal period premiums); (3) California Labor Code section 226.7 (unpaid rest period premiums); (4) California Labor Code sections 1194, 1197, and 1197.1 (unpaid minimum wages); (5) California Labor Code sections 201 and 202 (final wages not timely paid); (6) California Labor Code section 226(a) (non-compliant wage statements); (7) California Labor Code sections 2800 and 2802 (unreimbursed business expenses); and (8) California Business and Professional Code section 17200 (Unfair Competition Law, "UCL"). Plaintiff Kastler filed a motion to remand, and the Defendant filed a motion to dismiss the FAC. On Oct. 25, 2019, the Court denied both motions. On April 1, 2020, the parties participated in a mediation before Judge Michael Latin (Ret.), but did not reach a resolution. The Court granted several stipulations to continue the deadline to file a motion for class certification. On Nov. 18, 2020, the Court granted the Defendant's counsel's motion to withdraw. On March 15, 2021, the parties participated in another mediation session before Judge Howard R. Broadman (Ret.), of which the parties reached a tentative settlement. On April 29, 2021, the Court granted the parties' stipulation to file a second amended complaint ("SAC") to add Saul Andrade and Anthonicia Stallings as additional named plaintiffs and add a ninth claim under the Private Attorneys General Act ("PAGA"). The Defendant employed Plaintiff Andrade and Plaintiff Stallings as hourly, non-exempt employees in California from approximately June 2017 to February 2018 and December 2018 to January 2019, respectively. The SAC alleges that the Defendant engaged in uniform practices and procedures that violate the Labor Code: Failure to pay regular, minimum, and overtime wages properly, including their rounding policy; failure to pay all compensation due for all work performed; failure to accurately calculate the regular rate for meal, rest, and overtime premiums; failure to provide compliant meal periods, rest periods, and associated premium pay; failure to pay timely wages during employment and upon termination or resignation; failure to provide compliant wage statements; failure to maintain requisite payroll records; and failure to reimburse necessary business expenses. On May 3, 2021, the Plaintiffs moved for preliminary approval. Following the hearing on the motion for preliminary approval, the parties filed a supplemental brief in support of their motion and addendum to the settlement agreement to clarify certain elements of the settlement and address the Court's questions about the notice to be sent to class members and the time for class members to submit a request for exclusion, objection, or dispute. The parties also provided a revised notice to reflect the clarifications and changes made. The revised notice adds information concerning the process for submitting a request for exclusion following resolution of any dispute, adds contact information for the State Controller's Office, and adds a requirement to include the class member's name, case name, and case number for any dispute in accordance with the settlement agreement. Following informal and formal discovery and with the assistance of a mediator, the parties entered into a settlement agreement on April 30, 2021. The Settlement Class is defined as: All current and former non-exempt hourly employees who worked for Defendant within California at any time during the period between Feb. 28, 2015 and preliminary approval. The Defendant will make a $500,000 non-reversionary payment into a "Gross Settlement Fund." The Gross Settlement Fund includes payments to the Class Members, settlement administrative expenses, alleged PAGA penalties in the amount of $50,000, incentive awards, attorney fees, and litigation costs.In addition to the Gross Settlement Fund, the Defendant will pay its "share of the employer-side payroll taxes on the amount of the Settlement allocated to wages." Payments to the class members will be made from the "Net Settlement Fund," the balance of the Gross Settlement Fund after payments have been made for administrative expenses, alleged PAGA penalties, and any court-approved attorney fees, litigation costs, and incentive awards. The Defendant will provide the settlement administrator the number of "workweeks," defined as "the total number of weeks worked by all" class members during the class period, and the number of workweeks each class member worked. Each class member will be paid their share of the Net Settlement Fund by calculating their pro rata shares of the workweeks. The Settlement is "predicated upon the estimated 18,401 workweeks" for the class period. If the number of workweeks is 5% higher than 18,401 as of preliminary approval, the Parties agree to increase the Gross Settlement Fund 1% as appropriate by $27.17 for each workweek that exceeds the 5% threshold. As to the PAGA payment, the parties propose that 75% ($37,500) of the total sum of $50,000 will be paid to the California Labor and Workforce Development Agency ("LWDA"). The remaining 25% ($12,500) will be allocated on a pro rata basis to class members "employed by Defendant as non-exempt employees in California during the period from February 28, 2018 to preliminary approval. The Defendant will calculate the number of "PAGA workweeks," defined as "the total number of weeks worked by all" class members during the PAGA period. Any class members employed during the PAGA period will be paid their pro rata share of the PAGA payment regardless of whether they opt out of the class action settlement, but those who opt out of the class action settlement will only be bound by the release as to claims arising under PAGA. The class members must submit any disputes concerning the number of workweeks or PAGA workweeks within 45 days of the initial mailing of class notice by the settlement administrator. Settlement checks that are not cashed within 120 days of mailing will be "tendered to the State Controller's Office, Unclaimed Property Division in the name of the Settlement Class Member and the amount of the check that was cancelled." Simpluris Inc., a third-party settlement administrator, will mail notice of the class action settlement by first-class U.S. mail in English and Spanish to the last known address of each class member. The notice will include: a summary of the claims, a summary of the settlement terms, an estimate of the settlement share and any PAGA payment based on the number of workweeks they worked during the class period and PAGA period, the released claims, and instructions on how to object to and opt out of the settlement, including relevant deadlines. The deadline for a class member to submit a request for exclusion is 45 days of the mailing of class notice by the settlement administrator. The parties originally provided only 35 days to opt out, but increased the response deadline to 45 days. The class members who receive a re-mailed notice will have 14 days from the postmark date of the re-mailed notice to submit a request for exclusion. The class members who submit a dispute will have 14 days to submit a request for exclusion. The "reasonable costs of settlement administration through and beyond final approval, are estimated to be no greater than" $11,000. If the fees and costs are less than $11,000, the difference will be included in the Net Settlement Fund. If the fees and costs are greater than $11,000, "no additional fees and costs will be paid from the Gross Settlement Fund." Plaintiff Kastler will apply for an incentive award up to $7,500, and Plaintiff Andrade and Plaintiff Stallings will each apply for awards of up to $5,000. The Defendant will not oppose these requests. If the Court approves less than the amount requested, the difference between the requested and awarded amounts will be included in the Net Settlement Fund. The Class Counsel will file an application for attorneys' fees in an amount up to $175 million, as well as costs up to $40,000. The Defendant will not oppose these requests. Any difference between the requested and awarded amounts will be included in the Net Settlement Fund. Having weighed the relevant factors, Judge Gilliam preliminarily finds that the settlement agreement is fair, reasonable, and adequate, and GRANTS preliminary approval. He directs the parties to include both a joint proposed order and a joint proposed judgment when submitting their motion for final approval. Accordingly, Judge Gilliam grants the Plaintiffs' motion for preliminary approval of class action settlement. The parties are directed to meet and confer and stipulate to a schedule of dates for each event listed, which will be submitted to the Court within seven days of the date of the Order: (i) deadline for Settlement Administrator to mail notice to all putative Class Members; (ii) filing deadline for attorneys' fees and costs motion; (iii) filing deadline for incentive payment motion; (iv) deadline for Class Members to opt-out or object to settlement and/or application for attorneys' fees and costs and incentive payment, at least 45 days after the filing of the motions for attorneys' fees and incentive payments; (v) filing deadline for final approval motion; (vi) final fairness hearing; and (vii) hearing on motions. The parties are further directed to implement the proposed class notice plan. A full-text copy of the Court's Aug. 13, 2021 Order is available at https://tinyurl.com/s9c352cr from Leagle.com. OMNICELL INC: Bid to Dismiss Heard Putative Class Suit Pending -------------------------------------------------------------- Omnicell, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss the class action suit entitled, Corey Heard, individually and on behalf of all others similarly situated v. Omnicell, Inc., Case No. 2019-CH-06817, is pending. A class action lawsuit was filed against the Company, on June 5, 2019, in the Circuit Court of Cook County, Illinois, Chancery Division, captioned Corey Heard, individually and on behalf of all others similarly situated v. Omnicell, Inc., Case No. 2019-CH-06817. The complaint seeks class certification, monetary damages in the form of statutory damages for willful and/or reckless or, in the alternative, negligent violation of the Illinois Biometric Information Privacy Act ("BIPA"), and certain declaratory, injunctive, and other relief based on causes of action directed to allegations of violation of BIPA by the Company. The complaint was served on the Company on June 13, 2019. On July 31, 2019, the Company filed a motion to stay or consolidate the case with the action Yana Mazya, et al. v. Northwestern Lake Forest Hospital, et al., Case No. 2018-CH-07161, pending in the Circuit Court of Cook County, Illinois, Chancery Division. The Court subsequently, on October 10, 2019, denied the motion, without prejudice, as being moot in view of the dismissal of the claims against the Company in the Mazya Action. The Company filed a motion to dismiss the complaint in the Heard Action on October 31, 2019. The hearing on the Company's motion to dismiss was held on September 2, 2020. The Court ruled from the bench and dismissed the complaint without prejudice giving plaintiff leave to file an amended complaint by September 30, 2020. Plaintiff filed an amended complaint on September 30, 2020 and the Company subsequently filed a motion to dismiss the amended complaint on October 28, 2020. The Company's motion to dismiss is now fully briefed and the Court has scheduled oral argument on the motion for September 17, 2021. The Company intends to defend the lawsuit vigorously. Omnicell, Inc. provides automation and business analytics software solutions for medication and supply management in healthcare worldwide. The Company operates through two segments, Automation and Analytics, and Medication Adherence. The Company was formerly known as Omnicell Technologies, Inc. and changed its name to Omnicell, Inc. in 2001. Omnicell, Inc. was founded in 1992 and is headquartered in Mountain View, California. ONFIDO INC: Denial of Arbitration Bid in Sosa BIPA Suit Upheld -------------------------------------------------------------- In the case, FREDY SOSA, Plaintiff-Appellee v. ONFIDO, INC., Defendant-Appellant, Case No. 21-1107 (7th Cir.), the U.S. Court of Appeals for the Seventh Circuit affirms the district court's denial of Onfido's motion to compel individual arbitration. Plaintiff Sosa, a user of the marketplace application OfferUp, registered his identity to become a verified user on the app. The verification process involved using the app's TruYou feature with technology provided by Defendant Onfido. Sosa has since sued Onfido under the Illinois Biometric Information Privacy Act alleging that the TruYou feature used facial recognition technology to collect his biometric identifiers without his consent. The merits of Sosa's BIPA claim are not at issue at this early stage. The appeal instead concerns whether Sosa may continue litigating his action against Onfido in federal court. Onfido argues that the case belongs in arbitration because it is entitled to enforce an arbitration clause in the Terms of Service contract between Sosa and OfferUp. Though Onfido is not a party to the Terms of Service, it argues that it is entitled to enforce the arbitration clause under three separate nonparty contract enforcement theories: third-party beneficiary, agency, and equitable estoppel. Adding another layer to this dispute, the appeal presents a choice-of-law question. Because the Terms of Service has a Washington choice-of-law provision, Onfido argues that Washington law, rather than Illinois law, must be applied to determine its enforcement rights under the contract. The district court rejected each of Onfido's nonparty contract enforcement theories and denied Onfido's motion to compel individual arbitration. On the choice-of-law issue, it held that Onfido failed to establish that there was an outcomedeterminative difference between Illinois and Washington law, and since Onfido articulated no difference between the two, it applied Illinois law -- the law of the forum state -- to determine Onfido's right to enforce the arbitration clause. In so doing, the district court held that Onfido failed to establish that it was a third-party beneficiary of the Terms of Service or that it could otherwise enforce the contract's arbitration provision either as an agent of OfferUp or on equitable estoppel grounds. Onfido now brings an interlocutory appeal of the district court's denial of its motion to compel arbitration pursuant to 9 U.S.C. Section 16(a)(1)(A) & (B). First, Onfido contends that it established a conflict between Illinois and Washington law before the district court, while additionally arguing that it had no obligation to do so because Illinois courts give effect to contractual choice-of-law clauses without regard to the state's traditional conflicts rules. Second, Onfido argues that notwithstanding its failure to demonstrate an outcome -- determinative difference between Illinois and Washington law -- it should not have been put to that test to begin with. Third, it argues that it can enforce the arbitration clause as a third-party beneficiary of the Terms of Service. Fourth, Onfido contends it can enforce the Terms of Service as an agent of OfferUp. Finally, Onfido argues that it is entitled to enforce the arbitration agreement on equitable estoppel grounds. The Seventh Circuit begins its review with the district court's determination on the choice-of-law issue and then turn to its conclusions on Onfido's three nonparty enforcement theories. It agrees with the district court in all respects. It finds that in the district court proceedings, Onfido never suggested any difference between Illinois and Washington law, and the district court thus properly applied Illinois law. Further, nothing in the Terms of Service designate Onfido as a third-party beneficiary of that contract, and the record is devoid of evidence establishing that Onfido is an agent of OfferUp, or that Sosa should be equitably estopped from contesting Onfido's right to enforce the arbitration provision. Because Onfido failed to establish any right to enforce the arbitration provision as a nonparty to the Terms of Service, the Seventh Circuit affirms the district court's denial of Onfido's motion to compel individual arbitration. A full-text copy of the Court's Aug. 11, 2021 Order is available at https://tinyurl.com/4vzd2d5r from Leagle.com. ORANGE COUNTY, CA: Settles Tolled Roads Class Action for $200MM --------------------------------------------------------------- Alicia Robinson, writing for The Orange County Register, reports that if you've driven on one of Orange County's tolled roads in the past six years, you could be one of millions of people entitled to a small cash payment or forgiveness of penalty fees to be doled out in a more than $200 million settlement of a class action lawsuit. Multiple suits dating back to at least 2015 have been critical of how the Transportation Corridor Agencies (which operate the 73, 133, 241 and 261 toll roads) and the Orange County Transportation Authority (which operates the 91 Freeway Express Lanes) shared drivers' personal information with third parties, such as debt collectors, and how they charged tolls and violation fees to drivers who don't have accounts with them, among other complaints. The TCA and OCTA are on the brink of settling a class action lawsuit and are sending notices to some of the more than 15 million people who may have used the toll roads or lanes since mid-2015 and could benefit from the settlement. According to documents from the lawsuit, which was filed in federal court, the agencies don't admit any wrongdoing in the proposed settlements, but they've changed or promised to change some of their practices, including limiting how much personal information about drivers they share with other agencies or contractors, and they've pledged to forgive some outstanding penalties and provide restitution to some people who already paid. Information about who is eligible and what's available is posted at www.tollroadssettlements.com; Nov. 8 is the deadline to file a claim. Multiple complaints The lawsuit that's due to be settled is a consolidation of several legal complaints. The proposed settlement of the most recent suit largely revolves around whether TCA, OCTA and two outside contractors that worked for them violated state law in sharing drivers' personal information with third parties, but the lawsuit also includes allegations the toll road operators don't do enough to notify drivers about what they may owe and that penalties are excessive. Plaintiff James Watkins of Costa Mesa said in a phone interview that his toll trouble began in 2015, when TCA spotted his car on the 73 (he thinks his son might have been driving). He knew nothing about it until he went to the DMV to renew his registration and found TCA had put a lien on it to collect penalties for toll evasion. Watkins was charged "$1,500 to renew a $164 registration fee," he said. "I didn't have that kind of money." He decided to sue and was later asked to join the class action; Watkins said he's declining to accept the settlement and intends to file another suit because he doesn't think the amount he was offered is fair. Several attorneys representing the other seven plaintiffs could not be reached for comment. Spokesmen for TCA and OCTA maintain the agencies have followed the law in charging and collecting tolls and penalties. As to some drivers' claims in the suit that it was hard to tell they were entering a toll road and would be charged, TCA spokesman Eugene Fields said in an email, "Since the roads were constructed, signage has always been clearly visible and in excess of state standards. There are more than 650 signs informing drivers that they are on a tolled road; that cash is not accepted (these signs were installed in 2014); that tolls can be paid electronically via a pre-established account or online; and that a violation will be issued if tolls are not paid." OCTA spokesman Eric Carpenter said in an email, "In light of the recent lawsuit, OCTA did review its toll violation and enforcement ordinance to ensure we are consistent with toll-violation policies across the state. And in December 2020, the OCTA board made adjustments to that policy capping the maximum penalty for any violation at $100. Prior to that adjustment, penalties could increase to a maximum of $163 per violation (or 20 times the highest toll amount of $8.15)." What's next TCA and OCTA are notifying people who are eligible for a share of the settlement via email, letters and postcards, and they've placed ads in area newspapers and on social media, the spokesmen said. It's unclear whether they expect to reach everyone. Carpenter said an estimated 350,000 people could have valid claims with OCTA, and court filings say as many as 14 million people may be entitled to something from TCA. Its toll roads can log tens of millions of trips a year -- in fiscal 2019-20 about 83.7 million driver transactions were logged. Under the proposed settlement, TCA agreed to limit the sharing of driver information and explain more in their privacy policy about how that data may be shared, and to reset customers' status to opt them out of advertising. In addition, TCA has updated its signage to increase driver awareness and increased the grace period to pay tolls from five to seven days. OCTA also agreed to limit which driver information it shares with debt collectors. The settlement includes funds -- $1 million from OCTA and $29 million from TCA -- for cash awards, but each person may not get much: the information website on the OCTA settlement says those whose toll violations were sent to a debt collector can request up to $15. The bulk of the settlement money -- $40 million from OCTA and $135 million from TCA -- will go toward forgiving penalties for toll violations. Both agencies will be crediting many of the payments automatically, but people can opt out of the settlement if they choose (accepting the settlement means losing the right to sue regarding these claims). A recent Orange County Grand Jury report criticized TCA for carrying a large amount of debt that has extended the timeline for when the roads would become free to use, but Fields said the settlement would not affect the agencies' ability to repay it because they've already had "a substantial portion" of settlement expenses reimbursed through insurance, and "TCA is pursuing efforts to recover the full amount of the settlement from its insurers." Anyone who didn't get a notice but thinks they might be eligible for the settlement may call 888-490-0922. A hearing on whether the proposed settlement will become final is scheduled Jan. 4. [GN] ORPHAZYME A/S: Rosen Law Firm Reminds of September 7 Deadline ------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of Orphazyme A/S (NASDAQ: ORPH): (1) pursuant and/or traceable to Orphazyme's September 29, 2020 initial public offering (the "IPO" or "Offering"); and/or (2) between September 29, 2020 and June 18, 2021, inclusive, (the "Class Period") of the important September 7, 2021 lead plaintiff deadline in the securities class action. SO WHAT: If you purchased Orphazyme securities pursuant and/or traceable to the IPO and/or Orphazyme securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the Orphazyme class action, go to http://www.rosenlegal.com/cases-register-2119.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than September 7, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, the Offering documents and defendants during the Class Period made false and/or misleading statements and/or failed to disclose that: (1) arimoclomol was not as effective in treating Inclusion Body Myositis ("IBM") as defendants had represented; (2) arimoclomol was not as effective in treating Amyotrophic Lateral Sclerosis ("ALS") as defendants had represented; (3) the arimoclomol new drug application ("NDA") for Niemann-Pick disease type C ("NPC") was incomplete and/or required additional evidence and data to support the benefit-risk assessment of that NDA; (4) as a result, the U.S. Food and Drug Administration ("FDA") was unlikely to approve the arimoclomol NDA for NPC in its present form; (5) Orphazyme's overall business prospects, as well as arimoclomol's commercial prospects, were significantly overstated; and (6) as a result, defendants' public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the Orphazyme class action, go to http://www.rosenlegal.com/cases-register-2119.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] P & Z CAROLINA: Ditsworth Appeals Ruling on FLSA Suit Settlement ----------------------------------------------------------------- Plaintiff Rebecka Ditsworth filed an appeal from a court ruling entered in the lawsuit styled REBECKA DITSWORTH, Plaintiff v. P & Z CAROLINA PIZZA, et al., Defendants, Civil Action No. 1:20-CV-00084-GNS, in the U.S. District Court for the Western District of Kentucky at Bowling Green. As reported in the Class Action Reporter on July 28, 2021, Judge Greg N. Stivers of the U.S. District Court for the Western District of Kentucky, Bowling Green Division, issued Memorandum Opinion and Order: a. granting in part and denying in part the Plaintiff's Sealed Motions for Approval of Settlement and Attorneys' Fees and Costs; b. granting the Plaintiff's Unopposed Motion for Leave to File Final Approval of Settlement and Motion for Approval of Attorneys' Fees Under Seal; c. granting the Defendants' Motion for Leave to Seal Document File Supplemental Memoranda; and d. granting the Defendants' Unopposed Motion for Leave to Seal Document. On May 5, 2020, Ditsworth sued Defendants P&Z Carolina Pizza, LLC, doing business as Papa John's, Charles H. Zoellers, and Daniel B. Patterson, seeking unpaid wages under the Fair Labor Standards Act ("FLSA"), and Kentucky and North Carolina state wage laws. Ditsworth represents delivery drivers for Papa John's who alleged they were not paid the federal minimum wage due to insufficient reimbursements for their vehicle expenses. Ditsworth subsequently filed an Amended Complaint on May 19, 2020. The parties moved to conditionally certify a collective class under 29 U.S.C. Section 216(b), preliminarily certify a putative class under Rule 23, and preliminarily approve the Settlement Agreement. The Court granted the motion. On Oct. 16, 2020, the parties jointly moved for final approval of the Agreement and attorneys' fees and costs. Ms. Ditsworth now seeks a review of the order entered by Judge Stivers granting in part and denying in part the Plaintiff's Sealed Motions for Approval of Settlement and Attorneys' Fees and Costs, among other things. The appellate case is captioned as Rebecka Ditsworth v. P & Z Carolina Pizza, LLC, et al., Case No. 21-5755, in the United States Court of Appeals for the Sixth Circuit, filed on August 11, 2021.[BN] Plaintiff-Appellant REBECKA DITSWORTH, individually and on behalf of similarly situated persons, is represented by: David O'Brien Suetholz, Esq. BRANSTETTER, STRANCH & JENNINGS 515 Park Avenue Louisville, KY 40208 Telephone: (502) 636-4333 E-mail: davids@bsjfirm.com Defendants-Appellees P & Z CAROLINA PIZZA, LLC, dba Papa Johns; CHARLES H. ZOELLERS; and DANIEL B. PATTERSON are represented by: Craig Peter Siegenthaler, Esq. FISHER & PHILLIPS 220 W. Main Street, Suite 1700 Louisville, KY 40202 Telephone: (502) 561-3970 E-mail: csiegenthaler@fisherphillips.com PATRICIA COGNE-FAQUE: Debritto Seeks Rule 23 Class Status ---------------------------------------------------------- In the class action lawsuit captioned as Timothy Debritto, et al., v. Patricia Cogne-Faque, et al., Case No. 1:21-cv-00203-MSM-PAS (D.R.I.), Plaintiff Debritto files motion for class certification pursuant to the Fed. R. Civ. P. Rule 23(c)(1)(4). A copy of the Plaintiff's motion to certify class dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/38hNxBr at no extra charge. The Plaintiff appears pro se.[CC] PAYLOCITY HOLDING: BIPA Related Putative Class Suit Underway ------------------------------------------------------------ Paylocity Holding Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 6, 2021, for the fiscal year ended June 30, 2021, that the company continues to defend a potential class action suit alleging Illinois Biometric Information Privacy Act (BIPA). On November 16, 2020, a potential class action complaint was filed against the Company with the Circuit Court of Cook County alleging that the Company violated the Illinois Biometric Information Privacy Act. The complaint seeks statutory damages, attorney's fees and other costs. This claim is still in its earliest stages and the Company is unable to estimate any reasonably possible loss, or range of loss, with respect to this matter. The Company intends to vigorously defend against this lawsuit. No further updates were provided in the Company's SEC report. Paylocity Holding Corporation is a provider of cloud-based payroll and human capital management (HCM) software solutions to medium-sized organizations. The Arlington Heights, Illinois-based Company currently serves 6,850 clients throughout the United States. The company is based in Schaumburg, Illinois. PAYPAL HOLDINGS: Bragar Eagel Announces Securities Class Action --------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized stockholder rights law firm, on Aug. 24 disclosed that a class action lawsuit has been filed against PayPal Holdings, Inc. ("PayPal" or the "Company") (NASDAQ: PYPL) in the United States District Court for the Northern District of California on behalf of all persons and entities who purchased or otherwise acquired PayPal securities between February 9, 2017 and July 28, 2021, both dates inclusive (the "Class Period"). Investors have until October 19, 2021 to apply to the Court to be appointed as lead plaintiff in the lawsuit. PayPal operates as a technology platform and digital payments company that enables digital and mobile payments on behalf of consumers and merchants worldwide. The Company's services include, among others, PayPal Credit and certain debit card services. PayPal Credit is an open end (revolving) credit card account that provides a reusable credit line built into a consumer's account with PayPal. In 2015, PayPal settled regulatory claims with the Consumer Financial Protection Bureau ("CFPB") arising from certain of its business practices related to PayPal Credit between 2011 and 2015. Following this incident, the Company repeatedly asserted that it was remediating issues with its PayPal Credit business practices in accordance with its 2015 settlement with the CFPB. The complaint alleges that, throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations, and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) PayPal had deficient disclosure controls and procedures; (ii) as a result, PayPal's business practices with respect to PayPal Credit remained non-compliant with applicable laws and/or regulations; (iii) PayPal's practices regarding payment of interchange rates related to its debit cards were likewise non-compliant with applicable laws and/or regulations; (iv) accordingly, PayPal's revenues derived from its PayPal Credit and debit card practices were in part the subject of improper conduct and thus unsustainable; (v) all the foregoing subjected the Company to an increased risk of regulatory investigation and enforcement; and (vi) as a result, the Company's public statements were materially false and misleading at all relevant times. On July 29, 2021, PayPal filed a quarterly report on Form 10-Q with the U.S. Securities and Exchange Commission ("SEC"), reporting the Company's financial and operating results for the second quarter of 2021. In its quarterly report, PayPal disclosed investigations by the SEC and the CFPB. Specifically, PayPal disclosed receipt of a Civil Investigative Demand from the CFPB related "to the marketing and use of PayPal Credit in connection with certain merchants that provide educational services"; and that the Company has "responded to subpoenas and requests for information received from the [SEC] relating to whether the interchange rates paid to the bank that issues debit cards bearing our licensed brands were consistent with Regulation II of the Board of Governors of the Federal Reserve System, and to the reporting of marketing fees earned from the Company's branded card program." On this news, PayPal's stock price fell $18.81 per share, or 6.23%, to close at $283.17 per share on July 29, 2021. If you purchased or otherwise acquired PayPal shares and suffered a loss, are a long-term stockholder, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker, Melissa Fortunato, or Marion Passmore by email at investigations@bespc.com, telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. About Bragar Eagel & Squire, P.C. Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. Contacts: Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Melissa Fortunato, Esq. Marion Passmore, Esq. (212) 355-4648 investigations@bespc.com www.bespc.com [GN] PECKHAM INC: Court Conditionally Certifies Wilson Collective Action ------------------------------------------------------------------- In the class action lawsuit captioned as LORI WILSON, individually, and on behalf of all others similarly situated, v. PECKHAM, INC., Case No. 1:20-cv-00565-HYJ-PJG (W.D. Mich.), the Hon. Judge Phillip Green entered an order granting the stipulation as follows: 1. The Court conditionally certifies this case as a collective action under 29 U.S.C. section 216(b) for the purpose of sending notice to potential opt-in plaintiffs only; 2. The collective action shall consist of the following individuals to be conditionally certified and receive notice of this lawsuit pursuant to Section Fair Labor Standards Act (FLSA); "All current and former hourly call center agents who physically past three years;" 3. The Court approves the terms of the Notice and Consent Form; 4. Jesse L. Young and Anthony C. Norman of Kreis Enderle, P.C. are appointed as counsel for the FLSA Collective; and 5. Plaintiff Lori Wilson will serve as the named Plaintiff for the collective action and represent any opt-in Plaintiffs Defendant must provide the names, last known home addresses, last known personal email addresses, and dates of work, for all of the putative members of the FLSA Collective. Peckham, a nonprofit vocational rehabilitation organization, provides job training opportunities for persons with significant disabilities. A copy of the Court's order dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3DiPTOx at no extra charge.[CC] PEI WEI: Extension of Class Cert. Deadlines Filed in Clarke Suit ---------------------------------------------------------------- In the class action lawsuit captioned as SHARON CLARKE, on behalf of herself and all others similarly situated, v. PEI WEI ASIAN DINER, LLC, dba PEI WEI ASIAN KITCHEN, Case No. 3:20-cv-00800-N (N.D. Tex.), the Parties file a joint motion seeking approximately 30-day extensions of the deadlines for conducting class certification discovery and filing a motion for decertification. A copy of the Parties' motion dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3jg5cQ3 at no extra charge.[CC] The Plaintiff is represented by: C. Ryan Morgan, Esq. Andrew Frisch, Esq. MORGAN & MORGAN 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 Telephone: (407) 420-1414 Facsimile: (407) 245-3401 E-mail: rmorgan@forthepeople.com afrisch@forthepeople.com - and - Ashley M. Landers, Esq. Andrew H. Stuart, Esq. STUART & JOHNSTON, LLC 3343 Peachtree Road NE, Suite 530 Atlanta, GA 30326 E-mail: ashley@stuartandjohnston.com astuart@stuartandjohnston.com The Attorneys for the Defendant are: Timothy D. Howell, Esq. Clay Humphries, Esq. Timothy D. Howell, Esq. MOSES, PALMER & HOWELL, L.L.P. 309 West 7th Street, Suite 815 Fort Worth, Texas 76102 Telephone: (817) 255-9100 Facsimile: (817) 255-9199 E-mail: chumphries@mph-law.com thowell@mph-law.com PENNSYLVANIA INTERSCHOLASTIC: Brown Files ADA Suit in W.D. Pa. -------------------------------------------------------------- A class action lawsuit has been filed against Pennsylvania Interscholastic Athletic Association, Inc. The case is styled as Alex Brown, Trent Clayton, individually and on behalf of all others similarly situated v. Pennsylvania Interscholastic Athletic Association, Inc., Case No. 2:21-cv-01119-DSC (W.D. Pa., Aug. 24, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Pennsylvania Interscholastic Athletic Association, Inc. -- https://www.piaa.org/ -- is one of the governing bodies of high school and junior high school sports for the Commonwealth of Pennsylvania, United States.[BN] The Plaintiffs are represented by: Kevin W. Tucker, Esq. EAST END TRIAL GROUP, LLC 6901 Lynn Way, Suite 215 Pittsburgh, PA 15208 Phone: (412) 877-5220 Email: ktucker@eastendtrialgroup.com PHH MORTGAGE: TDCA Class Claim in Williams Suit Survives -------------------------------------------------------- In the case, URSULA N. WILLIAMS, et al, Plaintiffs v. PHH MORTGAGE CORPORATION, Defendant, Civil Action No. 4:20-cv-04018 (S.D. Tex.), Judge Charles Eskridge of the U.S. District Court for the Southern District of Texas, Houston Division, granted in part and denied in part the Defendant's motion to dismiss all of the class-action claims. Plaintiff Williams executed a standard form Federal Housing Administration deed of trust in January 2010 to purchase her home in Bryan, Texas. PHH was the original lender on Williams' FHA deed of trust. Plaintiffs Melbourne and Barbara Poff executed an FHA deed of trust in August 2007 to purchase their home in Point Blank, Texas. Ocwen Loan Servicing LLC serviced the Poffs' mortgage until it transferred servicing to PHH. The FHA deeds of trusts executed by the Plaintiffs both state, "Lender may collect fees and charges authorized by the Secretary," with the latter term referring to the Secretary of the United States Department of Housing and Urban Development. The deeds of trusts further provide, "This Security Instrument will be governed by Federal law and the law of the jurisdiction in which the Property is located." The Plaintiffs allege that each time they "made a mortgage payment online or over the phone, PHH collected fees of approximately $7.50-$19.50." They further allege that PHH "collected at least one Pay-to-Pay fee of at least $7.50 from them," and that Ocwen "collected at least one Pay-to-Pay fee of approximately $15" from the Poffs before transferring its servicing duties to PHH. But, the Plaintiffs claim, it only costs PHH forty cents to process such transactions. And so they argue that such fees are prohibited by the Texas Debt Collection Act and the rules and regulations of the HUD Secretary that apply to FHA loans. But even if the fees were permissible, the Plaintiffs still argue that "FHA rules prohibit FHA-approved mortgage lenders and servicers from passing on to borrowers more than the out-of-pocket costs for providing the service." The Plaintiffs initially brought the class action against PHH in the United States District Court for the District of New Jersey in July 2020. PHH moved to dismiss pursuant to Rule 12(b)(6), but that motion was denied for failure to comply with the court's rules. The action was then transferred to the Court in November 2020. The Plaintiffs filed their operative amended complaint in January 2020. It includes class action claims under the Texas Debt Collection Act and for declaratory and injunctive relief under 28 USC Sections 2201 and 2202. They seek to certify a "TDCA class" and an "FHA Pay-to-Pay Subclass." By way of remedy for their TDCA claims, the Plaintiffs seek "an injunction restraining PHH from charging Pay-to-Pay fees as well as actual damages." They further seek equitable relief pursuant to 28 USC Sections 2201 and 2202 in the form of a declaration that the so-called pay-to-pay fees are prohibited by HUD regulations, an injunction requiring PHH to comply with the TDCA, disgorgement of all pay-to-pay fees collected by PHH, and their costs. PHH again moves to dismiss all of the class-action claims pursuant to Rule 12(b)(6). Analysis The Texas Debt Collection Act is part of the Texas Finance Code. Its essential purpose "is to limit coercive and abusive behavior by all those seeking to collect debts." Section 392.303(a)(2) of the Texas Finance Code prohibits debt collectors from using unfair or unconscionable means that employ several enumerated practices, including that of "collecting or attempting to collect interest or a charge, fee, or expense incidental to the obligation unless the interest or incidental charge, fee, or expense is expressly authorized by the agreement creating the obligation or legally chargeable to the consumer." The Court recently denied a Rule 12(b)(6) motion to dismiss a similar TDCA claim also brought by Williams against another mortgage loan servicing company. PHH respectfully acknowledges that opinion, while asking the Court to "reconsider its position for purposes of the case" based on authorities and arguments that the Defendants in Lakeview didn't present. a. Statute of limitations PHH asserts that the TDCA has a two-year statute of limitations that runs from the date of the alleged violation regardless of when the Plaintiffs discovered it. It thus argues that the TDCA claims by Williams are barred because she most recently paid a convenience fee in January 2017 but didn't bring action until July 2020. It also argues that the Poffs made three convenience fee payments in 2017, so the TDCA limitations period for those also expired in 2019. The Plaintiffs respond that their claims aren't barred because the TDCA "lacks an express limitations period," so "Texas's four-year residual statute of limitations applies." Judge Eskridge opines that nothing on the face of the Plaintiffs' complaint supports the limitations defense as characterized by PHH, and the documents it cites are exhibits to a prior motion to dismiss that was denied. He says, those documents aren't appropriate to consider at this juncture. The TDCA claims won't be dismissed on limitations at present. But there will be immediate, expedited discovery on this issue, followed by summary judgment practice if determined supportable in good faith by PHH. A separate order will follow in that regard. b. TDCA claim PHH argues that the convenience fees it charged the Plaintiffs to use its optional payment method didn't violate the TDCA. In support of this overarching argument, PHH raises several sub-arguments regarding various elements of a TDCA claim, including (i) that the Plaintiffs can't bring a TDCA claim because neither PHH nor Ocwen "collected" or "attempted to collect" the alleged convenience fees at issue and (ii) that convenience fees don't violate Section 392.303(a)(2) of the TDCA because they aren't "incidental to" underlying loans. Judge Eskridge holds that in the absence of any authority finding that the fees at issue are legally chargeable under the TDCA, the Plaintiffs have sufficiently pleaded (at this stage) that the fees PHH and Ocwen charged them weren't expressly authorized by their deed of trust or otherwise legally chargeable. As such, the TDCA claim will go forward. c. Claim for declaratory and injunctive relief PHH also argues that the Plaintiffs haven't sufficiently pleaded a claim for declaratory and injunctive relief under 28 USC Sections 2201 and 2202. The Plaintiffs argue that that they're simply seeking a judicial determination that the FHA servicing restrictions promulgated by HUD render the Defendants' pay-to-pay fees not 'legally chargeable' to consumers with FHA-insured mortgages, as that term is used by the TDCA." Judge Eskridge explains that three factors must be considered when determining whether to decide or dismiss a declaratory-judgment action -- whether the declaratory action is justiciable; whether the court has the authority to grant declaratory relief; and whether to exercise its discretion to decide or dismiss the action. He says, the first factor on justiciability resolves the question at issue. The Judge holds that the claim for declaratory and injunctive relief will not go forward. The Fifth Circuit has long held "that the HUD Handbook does not afford a private cause of action." The Judge finds that the Plaintiffs can't simply recast their claim to enforce guidelines in the HUD Handbook (for which there's no private right of action) as one for declaratory judgment and injunctive relief. And because there's "no private cause of action, the claim for declaratory and injunctive relief fails as a matter of law." Potential for Repleading Because the Plaintiffs' claim for declaratory and injunctive relief under 28 USC Sections 2201 and 2202 fails as a matter of law, amendment would be futile. Dismissal in that respect will be with prejudice. Order The motion by Defendant PHH to dismiss pursuant to Rule 12(b)(6) is granted in part and denied in part. It is granted as to the claim for declaratory and injunctive relief under 28 USC Section 2201 and 2202. That claim is dismissed with prejudice. The motion is denied as to the claim under the Texas Debt Collection Act. A full-text copy of the Court's Aug. 11, 2021 Opinion & Order is available at https://tinyurl.com/sep85r48 from Leagle.com. POST HOLDINGS: Egg Products Antitrust Class Suit vs. MFI Ongoing ---------------------------------------------------------------- Post Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that Michael Foods, Inc. (MFI) continues to defend a class action suit by opt-out plaintiffs related to egg products. In late 2008 and early 2009, approximately 22 class action lawsuits were filed in various federal courts against MFI, a wholly-owned subsidiary of the Company, and approximately 20 other defendants (producers of shell eggs and egg products and egg industry organizations), alleging violations of federal and state antitrust laws in connection with the production and sale of shell eggs and egg products, and seeking unspecified damages. All cases were transferred to the Eastern District of Pennsylvania for coordinated and/or consolidated pretrial proceedings. The cases involved three plaintiff groups: (i) a nationwide class of direct purchasers of shell eggs (the "direct purchaser class"); (ii) individual companies (primarily large grocery chains and food companies that purchase considerable quantities of eggs) that opted out of various settlements and filed their own complaints related to their purchases of shell eggs and egg products (the "opt-out plaintiffs"); and (iii) indirect purchasers of shell eggs (the "indirect purchaser plaintiffs"). Resolution of claims: To date, MFI has resolved the following claims, including all class claims: (i) in December 2016, MFI settled all claims asserted against it by the direct purchaser class for a payment of $75.0, which was approved by the district court in December 2017; (ii) in January 2017, MFI settled all claims asserted against it by opt-out plaintiffs related to shell egg purchases on confidential terms; (iii) in June 2018, MFI settled all claims asserted against it by indirect purchaser plaintiffs on confidential terms; and (iv) between June 2019 and September 2019, MFI individually settled on confidential terms egg product opt-out claims asserted against it by four separate opt-out plaintiffs. MFI has at all times denied liability in this matter, and no settlement contains any admission of liability by MFI. Remaining portion of the cases: MFI remains a defendant only with respect to claims that seek damages based on purchases of egg products by three opt-out plaintiffs. The district court had granted summary judgment precluding any claims for egg products purchases by such opt-out plaintiffs, but the Third Circuit Court of Appeals reversed and remanded these claims for further pre-trial proceedings. Defendants filed a second motion for summary judgment seeking dismissal of the claims, which was denied in June 2019. The remaining opt-out plaintiffs have not yet been assigned trial dates. Post Holdings said, "Although the likelihood of a material adverse outcome in the egg antitrust litigation has been significantly reduced as a result of the MFI settlements described above, the remaining portion of the cases could still result in a material adverse outcome." Post Holdings, Inc. operates as a consumer packaged goods holding company in the United States and internationally. It operates through Post Consumer Brands, Weetabix, Refrigerated Food, and Active Nutrition segments. The company was founded in 1895 and is headquartered in St. Louis, Missouri. PROSHARES TRUST II: Dismissal of Securities Suit Affirmed --------------------------------------------------------- ProShares Trust II said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the Second Circuit Court of Appeals found the plaintiffs' arguments to be without merit and affirmed the District Court's judgement of dismissal. ProShare Capital Management LLC (the Sponsor) and ProShares Trust II are named as defendants in the following purported class action lawsuits filed in the United States District Court for the Southern District of New York on the following dates: (i) on January 29, 2019 and captioned Ford v. ProShares Trust II et al.; (ii) on February 27, 2019 and captioned Bittner v. ProShares Trust II, et al.; and (iii) on March 1, 2019 and captioned Mareno v. ProShares Trust II, et al. The allegations in the complaints are substantially the same, namely that the defendants violated Sections 11 and 15 of the 1933 Act, Sections 10(b) and 20(a) and Rule 10b-5 of the 1934 Act, and Items 303 and 105 of Regulation S-K, 17 C.F.R. Section 229.303(a)(3)(ii), 229.105 by issuing untrue statements of material fact and omitting material facts in the prospectus for ProShares Short VIX Short-Term Futures ETF, and allegedly failing to state other facts necessary to make the statements made not misleading. Certain Principals of the Sponsor and Officers of the Trust are also defendants in the actions, along with a number of others. The District Court consolidated the three actions and appointed lead plaintiffs and lead counsel. On January 3, 2020, the District Court granted defendants' motion to dismiss the consolidated class action in its entirety and ordered the case closed. On January 31, 2020, the plaintiffs filed a notice of appeal to the Second Circuit Court of Appeals. On March 4, 2021, the Second Circuit Court of Appeals heard oral argument. On March 15, 2021, the Second Circuit Court of Appeals found the plaintiffs' arguments to be without merit and affirmed the District Court's judgement. ProShares Trust II is a Delaware statutory trust formed on October 9, 2007 and is currently organized into separate series. PROTECH SOLUTIONS: Agreed Confidentiality Order Entered in Acker ---------------------------------------------------------------- In the case, SAMUEL ACKER and ARLAN PECKHAM, Each Individually and on behalf of all others similarly situated, Plaintiff v. PROTECH SOLUTIONS, INC., Defendant, Case No. 4:20-cv-852-DPM (E.D. Ark.), Judge D.P. Marshall, Jr., of the U.S. District Court for the Eastern District of Arkansas, Central Division, entered the parties' Agreed Confidentiality Order. All materials produced or adduced in the course of discovery, including initial disclosures, responses to discovery requests, deposition testimony and exhibits, and information derived directly therefrom, will be subject to the Order concerning Confidential Information. The Order is subject to the Local Rules of this District and the Federal Rules of Civil Procedure on matters of procedure and calculation of time periods. A third party producing documents or providing information, or a party in response to such production, may designate such documents or information during the course of the litigation under the Order. As used in the Order, "Confidential Information" means information designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL EYES ONLY" by the producing party that it reasonably and in good faith believes is confidential, non-public information, including but not limited to: (a) information prohibited from disclosure by statute; (h) information that reveals trade secrets; (c) research, technical, commercial or financial information that the producing party has maintained as confidential; (d) medical information concerning any individual; (e) personally identifiable information; (f) income tax returns (including attached schedules and forms), W-2 forms and 1099 forms; or (g) personnel or employment records of a person who is not a party to the case. Information or documents that are available to the public may not be designated as Confidential Information. Unless all parties agree on the record when the deposition testimony is taken, deposition testimony taken in the case will be treated as though designated "CONFIDENTIAL" until the expiration of the 30th day after the transcript is delivered to any party. Within this time period, a party may serve a Notice of Designation to all parties of record as to specific portions of the testimony that are designated Confidential Information, and thereafter only those portions identified in the Notice of Designation will be protected by the terms of the Order. The failure to serve a timely Notice of Designation will waive any designation of testimony taken in that deposition as Confidential Information, unless otherwise ordered by the Court. Confidential Information will not be used or disclosed by the Parties, their counsel, or any other persons identified in subparagraph (B) for any purpose whatsoever other than in the litigation. The counsel for the parties will make reasonable efforts to prevent unauthorized or inadvertent disclosure of Confidential Information. Should materials designated under this Order be inadvertently disclosed or if there is unauthorized access to such materials, the party in possession of that materials under the Order will (1) provide immediate notification to the party who produced such information advising them of the disclosure, (2) take reasonable steps to triage, rectify, or correct the inadvertent or unauthorized disclosure, and (3) cooperate with any investigation of that inadvertent or unauthorized disclosure and all reasonable actions necessary to correct the inadvertent or unauthorized disclosure to the same extent as if the materials belonged to that party. Materials designated "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL EYES ONLY" which contain confidential tax information must be securely stored by the parties. The designation of any material or document as Confidential Information is subject to challenge by any party. Nothing in the Order or any action or agreement of a party under the Order limits the Court's power to make orders concerning the disclosure of documents produced in discovery or at trial. Nothing therein will be construed to affect the use of any document, material, or information at any trial or hearing. The Order will remain in effect for one year after the case ends, including any appeal. Thereafter, the obligations imposed will continue, but will be solely a matter of contract between the parties. Within 60 days after dismissal or entry of final judgment not subject to further appeal, all Confidential Information under the Order will upon request be returned to the producing party unless: (1) the document has been offered into evidence or filed without restriction as to disclosure; (2) the parties agree to destruction to the extent practicable in lieu of return; or (3) as to documents bearing the notations, summations, or other mental impressions of the receiving party, that party elects to destroy the documents and certifies to the producing party that it has done so. Filings under seal will be deleted from the ECF system only upon order of the Court. The Order will take effect when entered and will be binding upon all counsel of record and their law firms, the parties, and persons made subject to the Order by its terms. A full-text copy of the Court's Aug. 11, 2021 Agreed Order is available at https://tinyurl.com/pc93d7hb from Leagle.com. PROVINCE CANADIENNE: McCarthy Tetrault Attorney Discusses Ruling ---------------------------------------------------------------- Samuel Lepage, Esq., Guillaume Mercier, Esq., and Andree-Anne Labbe, Esq., of McCarthy Tetrault LLP, in an article for Mondaq, report that on July 5, 2021, the Honorable Paul Mayer of the Quebec Superior Court allowed a defendant in a class action to implead nearly 150 third parties, including the Attorney General of Quebec in order to determine their liability regarding the allegations raised in the class action (known in Quebec civil law as an action in warranty or a call in warranty). In addition to recalling the criteria applicable to third party opposition to the call in warranty this decision presents a rather singular case of application in the context of a class action, and demonstrates a flexibility that is reminiscent of the approach of Quebec judges at the authorization stage. Procedural Context On June 7, 2019, in its important decision in Saint Joseph's Oratory of Mount Royal v. J.J.1, the Supreme Court of Canada authorized a class action against the Province canadienne de la Congregation de Sainte-Croix (the "Congregation") as well as St. Joseph's Oratory (the "Oratory"), whose affairs were administered by the Congregation. The main issue in the class action is whether the Congregation and the Oratory are liable for sexual abuse perpetrated by members of the Congregation in educational institutions, residences, summer camps, or any other location in Quebec, including the Oratory. The Call in Warranty In January 2021, the Congregation filed a writ of forced intervention to call in warranty 130 Fabriques, Bishops and religious corporations (the "Dioceses and Parishes"), 25 School Boards and School Service Centers (the "School Boards"), 11 insurance companies and the Attorney General of Quebec (the "AGQ"). The insurance companies and the Dioceses and Parishes have not contested the intervention. More specifically, in the event that a judgment on the merits concludes that the Congregation was responsible for the sexual abuse committed by its members, the Congregation maintains that the School Boards and the AGQ would be jointly and severally liable for the prejudices resulting from their extra-contractual faults, i.e. having grossly neglected their duties to visit, verify, inspect or investigate the establishments in which members of the Congregation worked. Position of the Parties Representative J.J. objected to the acts of intervention on the grounds that they were "excessive, abusive, disproportionate and unreasonable procedures, which seek to analyze the responsibility of all the actors in the Quebec education system" and which involve an exaggerated number of parties to the litigation. The AGQ and the School Boards objected to the call in warranty, notably by raising (i) the lack of connection with the main action and (ii) the futility of the calls in warranty for the determination of common issues. The latter argument is of particular interest. For its part, the Congregation argued that the call in warranty, while significant in scope, was still proportionate, given the issues in dispute. It also argued that recent amendments to the Code of Civil Procedure prevented the School Boards and AGQ from opposing the writ of forced intervention. Decision The Court first rejected the Congregation's argument concerning the impleaded third parties' absence of a right to oppose the call in warranty. Indeed, the Court found no indication that the legislator intended to remove the right of third parties to oppose being impleaded in the dispute, especially since the Code of Civil Procedure2 expressly sets out the conditions under which a third party may make such an opposition. Nonetheless, the Court found that the conditions for instituting an action in warranty were met, and dismissed the opposition of the School Boards, AGQ and J.J. It noted that the criteria for instituting an action in warranty are to demonstrate (i) a legal relationship between the petitioner and the third party called in warranty and (ii) a connection between the call in warranty and the main action, and that the threshold for instituting an action in warranty is low. In this case, these conditions were met, given the allegations of common or contributory extra-contractual faults, which give rise to legal solidarity. Indeed, the reproaches formulated by the Congregation against the third parties called in warranty were of the same nature as the faults alleged by J.J. against the Congregation, that is to say, of having allowed sexual assaults to be committed by members of the Congregation on children placed under their responsibility and of having ignored them. Moreover, these allegations caused common injury to the class members. The Court also rejected claims that the call in warranty was clearly ill-founded, disproportionate, or unnecessary for the purpose of deciding permissible common issues. The mere existence of potential joint and several liability was found to be a sufficient legal syllogism to justify the call in warranty at this preliminary stage of the litigation. It was not for the court to analyze the likelihood of success of the Congregation's claims at this stage, which will require an analysis on the merits. The Superior Court did, however, grant a motion to dismiss filed by fourteen (14) of the School Boards, given the lack of evidence that a member of the Congregation worked at any time in the schools of those boards. Analysis This decision is of interest for two main reasons: (i) the application of the rules relating to the action in warranty in a class action context and (ii) the large number of third parties called in warranty (over 150). The Court's decision confirms that the criteria applicable to the action in warranty remain the same in the context of a class action. Thus, at the opposition stage, the courts must not examine whether the call in warranty is useful for deciding the class action or would hinder its progress, but rather whether there is a legal relationship between the plaintiffs and the impleaded third party and whether there is a connection with the class action. This is therefore a less demanding criterion than the usefulness and/or relevance to the resolution of the authorized common issues, which criteria usually serve to limit the parameters of the class action at the merits stage. Therefore, while case law allows the striking out of allegations or the dismissal of amendments that are not faithful to the framework established by the common issues and the authorization judgment3, the Honorable Paul Mayer states that the admissibility of a call in warranty in the context of a class action is rather assessed by its usual criterion, namely that of relatedness. In our opinion, this does not mean that an action in warranty could not ultimately be found to be disproportionate or excessive on its own merits, but it is simply not an argument at the opposition stage. [GN] REASON BRAND: Calcano Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Reason Brand, Inc. The case is styled as Evelina Calcano, on behalf of herself and all other persons similarly situated v. Reason Brand, Inc., Case No. 1:21-cv-07149 (S.D.N.Y., Aug. 24, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Reason Clothing -- https://reasonclothing.com/ -- is a fully fledged menswear line committed to producing NYC based clothing.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal RIPPLE LABS: Toomey Suit Transferred to N.D. California ------------------------------------------------------- The case styled as Tyler Toomey, Markas Sergalis, on behalf of themselves and all others similarly situated v. Ripple Labs, Inc., XRP II, LLC, Bradley Garlinghouse, MCO Malta Dax Limited doing business as: Crypto.com, Foris Dax Global Limited doing business as: Crypto.com, Foris Dax, Inc., Foris, Inc., Payward, Inc. doing business as: Kraken, Case No. 3:21-cv-00093, was transferred from the U.S. District Court for the Middle District of Florida, to the U.S. District Court for the Northern District of California on August 24, 2021. The District Court Clerk assigned Case No. 3:21-cv-06518-SK to the proceeding. The nature of suit is stated as Other Fraud. Ripple Labs, Inc. -- https://ripple.com/ -- is an American technology company which develops the Ripple payment protocol and exchange network.[BN] The Plaintiffs are represented by: Sarah Westcot, Esq. BURSOR & FISHER, P.A. 701 Brickell Avenue., Suite 1420 Miami, FL 33133 Phone: (305) 330-5512 Fax: (305) 676-9006 Email: swestcot@bursor.com The Defendants are represented by: Andrew J. Ceresney, Esq. DEBEVOISE AND PLIMPTON LLP 919 Third Avenue New York, NY 10022 Phone: (212) 909-6000 Email: aceresney@debevoise.com - and - Suzanne E. Nero, Esq. Lisa Bugni, Esq. KING & SPALDING LLP 50 California Street, Suite 3300 San Francisco, CA 94111 Phone: (415) 318-1234 Email: lbugni@kslaw.com - and - Damien Jerome Marshall, Esq. KING & SPALDING LLP 1185 Avenue of the Americas New York, NY 10036 Phone: (212) 790-5357 Fax: (212) 556-2222 Email: dmarshall@kslaw.com - and - Andrew C. Lourie, Esq. KOBRE & KIM, LLP 201 South Biscayne Blvd Suite 1900 Miami, FL 33131 Phone: (305) 967-6107 Fax: (305) 967-6128 Email: andrew.lourie@kobrekim.com ROB GRAHAM: Ricard TCPA Suit Removed to S.D. Florida ---------------------------------------------------- The case styled as Jillian Ricard, individually and on behalf of all other similarly situated current and former employees of Defendants v. Rob Graham Enterprises, LLC doing business as: 100 INSURE, was removed to the U.S. District Court for the Southern District of Florida on Aug. 24, 2021. The District Court Clerk assigned Case No. 2:21-cv-14349-XXXX to the proceeding. The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Rob Graham Enterprises -- http://robgrahamenterprises.com/-- is a leader in lead-generation.[BN] The Plaintiff is represented by: Ignacio Javier Hiraldo, Esq. 1200 Brickell Ave., Suite 1950 Miami, FL 33131 Phone: (786) 496-4469 Email: ijhiraldo@ijhlaw.com - and - Manuel Santiago Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Blvd. Ste 1400 Fort Lauderdale, FL 33394 Phone: (954) 400-4713 Email: mhiraldo@hiraldolaw.com - and - Michael Eisenband, Esq. EISENBAND LAW, P.A. 515 E Las Olas Blvd, Suite 120 Fort Lauderdale, FL 33301 Phone: (954) 533-4092 Email: meisenband@Eisenbandlaw.com The Defendant is represented by: Zachary D. Messa, Esq. JOHNSON POPE BOKOR RUPPEL & BURNS 911 Chestnut Street Clearwater, FL 33756 Phone: (727) 461-1818 Fax: (727) 462-0365 Email: zacharym@jpfirm.com SAMSUNG ELECTRONICS: Faces Suit Over Galaxy Buds Headphone Defect ----------------------------------------------------------------- Erin Shaak, writing for ClassAction.org, reports that a proposed class action claims a defect in Samsung's Galaxy Buds Pro headphones can cause allergic and inflammatory reactions in wearers' ears, rendering the earbuds unfit for their intended purpose. According to the 26-page case out of New Jersey, the alleged defect causes users of the Galaxy Buds Pro to experience "itching, burning, redness, blistering, flaking, scabbing and/or fluid leaking from the ear" soon after they begin wearing the headphones. The only way to resolve the problems with the earbuds is for those experiencing symptoms to stop using the product, which "render[s] them useless," the lawsuit alleges. The case argues that Samsung has known about the alleged defect in the Galaxy Buds Pro headphones, which are sold for $50 more than the Galaxy Buds+ and $30 more than the Galaxy Buds Live, almost as soon as the company began selling the devices in January 2021 yet has failed to warn buyers that the product can cause an allergic reaction. Instead, consumers relied on Samsung's representations that the Galaxy Buds Pro were a "top-of-the-line product" and safe to wear in the ear "when they are not," the suit says. "Samsung's marketing techniques are false and misleading in that a reasonable consumer would believe that the Earbuds were of premium quality, are capable of being used as intended and would not result in health risks under ordinary use," the complaint reads. "But in reality, the Defect renders the Earbuds unsafe and useless, and result [sic] in significant health issues." The lawsuit claims consumers have paid "more than they would otherwise pay" for the Galaxy Buds Pro due to Samsung's allegedly deceptive advertising scheme. According to the suit, Samsung began selling its Galaxy Buds Pro earbuds in January 2021 after conducting extensive product testing on the newest version of its popular headphones. The case claims the company's testing, as well as consumer complaints that began rolling in within the same month that the headphones were released, should have alerted Samsung to the apparent defect in the Galaxy Buds Pro. Per the case, though the Internet is now "replete with consumers complaining about the Defect," Samsung has failed to address the problem "in any way." The lawsuit claims the allergic reactions allegedly caused by the earbuds stem from a defect in the product's material, workmanship or manufacturing and have put consumers' health "at serious risk." Nevertheless, the suit says, Samsung has responded to complaints of the problem by either "unconscionably limiting" its one-year warranty to not cover the defect or replacing the earbuds with another pair "that contain[s] the exact same Defect." As a result, the case alleges, consumers must choose between continuing to experience the negative side effects associated with using the Galaxy Buds Pro or stopping use of the product well before the end of its expected useful life. "Either scenario is contrary to a reasonable consumer's expectations and frustrates the consumer's entire purpose in purchasing the Earbuds with the expectation it would be a ‘durable good' with a long useful life," the complaint scathes. The case adds that although Samsung has urged customers who complained to purchase aftermarket foam tips for their earbuds, the new tips do little to alleviate their symptoms and they are ultimately forced to stop using both the earbuds and the tips. According to the suit, consumers have paid hundreds of dollars for what they reasonably expected to be functioning in-ear headphones "only to be saddled with substandard devices that fail to perform the basic functions that consumers were promised." The lawsuit looks to cover anyone in the U.S. who purchased one or more of the Samsung Galaxy Buds Pro devices, with a proposed subclass of those who did so in New Jersey. [GN] SEAWORLD ENTERTAINMENT: Highfields Capital Suit Underway -------------------------------------------------------- SeaWorld Entertainment, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a securities class action suit entitled, Highfields Capital I LP et al v. SeaWorld Entertainment, Inc. et al. On June 14, 2018, a lawsuit captioned Highfields Capital I LP et al v. SeaWorld Entertainment, Inc. et al, was filed in the United States District Court in the Southern District of California against the Company and certain of the Company's former and present executive officers. The plaintiffs allege, among other things, that the defendants made false and misleading statements in violation of the federal securities laws and Florida common law, regarding the impact of the film Blackfish on SeaWorld's business. The complaint further alleges that such statements were made to induce plaintiffs to purchase common stock of the Company at artificially-inflated prices and that plaintiffs suffered investment losses as a result. The plaintiffs have indicated to the Company they believe the damages are in the range of $30 million to $35 million before considering interest. In 2018, defendants moved for partial dismissal of the complaint. In 2019, the Court granted defendants' motion and dismissed plaintiffs' Florida state law claims as well as federal securities law claims based on the Company's second quarter 2013 earnings statements. The parties have completed discovery and will be filing summary judgment motions. The Company believes that the lawsuit is without merit and intends to defend the lawsuit vigorously. SeaWorld said. "While there can be no assurance regarding the ultimate outcome of this lawsuit, the Company believes that any potential loss would not be material." SeaWorld Entertainment, Inc., together with its subsidiaries, operates as a theme park and entertainment company in the United States. The company operates SeaWorld theme parks in Orlando, Florida; San Antonio, Texas; and San Diego, California, as well as Busch Gardens theme parks in Tampa, Florida, and Williamsburg, Virginia. The company was formerly known as SW Holdco, Inc. and changed its name to SeaWorld Entertainment, Inc. in December 2012. SeaWorld Entertainment, Inc. was founded in 1959 and is headquartered in Orlando, Florida. SELECTQUOTE INC: Rosen Law Firm Reminds of October 15 Deadline -------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, on Aug. 18 announced the filing of a class action lawsuit on behalf of purchasers of the securities of SelectQuote, Inc. (NYSE: SLQT) between February 8, 2021 and May 11, 2021, inclusive (the "Class Period"). A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than October 15, 2021. SO WHAT: If you purchased SelectQuote securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the SelectQuote class action, go to http://www.rosenlegal.com/cases-register-2145.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than October 15, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) SelectQuote's 2019 cohort was underperforming; (2) a result, the Company's financial results would be adversely impacted; and (3) as a result of the foregoing, defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the SelectQuote class action, go to http://www.rosenlegal.com/cases-register-2145.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Attorney Advertising. Prior results do not guarantee a similar outcome. CONTACT: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] SESEN BIO: Bernstein Liebhard Reminds of October 18 Deadline ------------------------------------------------------------ Bernstein Liebhard, a nationally acclaimed investor rights law firm, on Aug. 23 disclosed that a securities class action lawsuit has been filed on behalf of investors who purchased or acquired the securities of Sesen Bio, Inc. ("Sesen Bio " or the "Company") (NASDAQ: SESN) from December 21, 2020 through August 17, 2021 (the "Class Period"). The lawsuit filed in the United States District Court for the Southern District of New York alleges violations of the Securities Exchange Act of 1934. If you purchased Sesen Bio securities, and/or would like to discuss your legal rights and options please visit Sesen Bio Shareholder Class Action Lawsuit or contact Rujul Patel toll free at (877) 779-1414 or rpatel@bernlieb.com The complaint alleges that, throughout the Class Period, Defendants made false and misleading statements and failed to disclose that: (i) that Sesen Bio's clinical trial for Vicineum had more than 2,000 violations of trial protocol, including 215 classified as 'major'; (ii) that three of Sesen Bio's clinical investigators were found guilty of 'serious noncompliance,' including 'back-dating data'; (iii) that Sesen Bio submitted the tainted data in connection with the BLA for Vicineum (iv) that Sesen Bio's clinical trials showed that Vicineum leaked out into the body, leading to sides effects including liver failure and liver toxicity, and increasing the risks for fatal, drug-induced liver injury; (v) that, as a result of the foregoing, the Company's BLA for Vicineum was not likely to be approved; (vi) that, as a result of the foregoing, there was a reasonable likelihood that Sesen Bio would be required to conduct additional trials to support the efficacy and safety of Vicineum; and (vii) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On August 13, 2021, Sesen Bio announced the FDA declined to approve its Biologics License Application for Vicineum in its current form. On this news, the Company's share price fell $2.80, or 57%, to close at $2.11 per share on August 13, 2021. On August 16, 2021, Sesen Bio further revealed that "it appears that [the Company] will need to do a clinical trial to provide the additional efficacy and safety data necessary for the FDA to assess the benefit-risk profile, which is the basis for approval." The Company announced it expected it could not resubmit its BLA until 2023. On this news, the Company's share price fell $0.89, or 42%, to close at $1.22 per share on August 16, 2021. Then, on August 18, 2021, the health and medicine news site STAT published an article entitled "Sesen Bio trial of cancer drug marked by misconduct and worrisome side effects, documents show." The article detailed that the clinical trial for Vicineum was marked by thousands of violations of study rules, damning investigator conduct, and worrying signs of toxicity the company did not publicly disclose. On this news, the Company's share price fell $0.20, or 13%, to close at $1.31 per share on August 18, 2021. If you wish to serve as lead plaintiff, you must move the Court no later than October 18, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased Sesen Bio securities, and/or would like to discuss your legal rights and options please visit https://www.bernlieb.com/cases/paypalgroupholdings-pypl-shareholder-class-action-lawsuit-fraud-stock-432/apply/ or contact Rujul Patel toll free at (877) 779-1414 or rpatel@bernlieb.com Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. Contact Information Rujul Patel Bernstein Liebhard LLP https://www.bernlieb.com (877) 779-1414 rpatel@bernlieb.com [GN] SHANG NOODLE: Han Conditional Certification Bid Partly Granted -------------------------------------------------------------- In the class action lawsuit captioned as BAIGUANG HAN, on his own behalf and on behalf of others similarly situated, v. SHANG NOODLE HOUSE, INC. d/b/a SHANG KITCHEN, ZHI ZHONG LIU a/k/a ZHIZHONG LIU and SUMMER ZHANG a/k/a SUMMER LIU, Case No. 1:20-cv-02266-PKC-VMS (E.D.N.Y.), the Hon. Judge Vera M. Scanlon entered an order granting in part and denying in part the Plaintiff's motion for conditional certification of a Fair Labor Standards Act (FLSA) collective: -- denied with respect to alleged minimum wage violations; -- denied with respect to alleged overtime violations suffered by Wait Staff; and -- granted with respect to alleged overtime violations suffered by Kitchen Workers, and the parties are directed to follow the Court's instructions and use the Court- authorized Notice and Consent Form Plaintiff Han brings this wage and hour action, individually and on behalf of other persons similarly situated, against Defendants pursuant to the FLSA, and the New York Labor Law (NYLL). Plaintiffs' FLSA unpaid minimum wage and overtime claims as an FLSA collective action on behalf of all current and former chefs, cooks, meat cutters, food preparers, material preparers, dishwashers, waiters and waitresses who worked for Defendants from May 19, 2017, through today’s date (Collective Action Period). A copy of the Court's order dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3mNwVKr at no extra charge.[CC] SIFCO INDUSTRIES: Settlement in Wage-and-Hour Suit Gets Final Nod ----------------------------------------------------------------- SIFCO Industries, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the settlement in the employee wage-and-hour related putative class action suit has been granted final approval. The Company is a defendant in a purported class action lawsuit filed in the Superior Court of California, County of Orange, which was filed in August 2017, arising from employee wage-and-hour claims under California law for alleged meal period, rest break, hourly and overtime wage calculation, timely wage payment and necessary expenditure indemnification violations; failure to maintain required wage records and furnish accurate wage statements; and unfair competition. A settlement has been reached and the Company received preliminary court approval on July 13, 2020. Class action notices were sent at the end of September and there were no objections to the settlement. On February 4, 2021, the court issued a tentative ruling to grant final approval. The final approval was granted and the previously recorded liability of $315 was paid on March 29, 2021. SIFCO Industries, Inc. produces and sells forgings and machined components primarily for the aerospace and energy markets in the United States and Europe. It was founded in 1916 and is headquartered in Cleveland, Ohio. SIMMONS FIRST: Pace Putative Class Suit Underway ------------------------------------------------ Simmons First National Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that Simmons Bank continues to defend a putative class action suit initiated by Susanne Pace. On June 4, 2021, the Company and the Bank entered into an Agreement and Plan of Merger with Landmark Community Bank, headquartered in Collierville, Tennessee, pursuant to which, upon the terms and subject to the conditions of the Landmark Agreement, Landmark will merge with and into the Bank, with the Bank continuing as the surviving entity. On January 14, 2020, Susanne Pace filed a putative class action complaint against Landmark Bank, formerly a wholly-owned subsidiary of The Landrum Company, to which Simmons Bank is a successor by merger in connection with the Company's acquisition of The Landrum Company which closed in October 2019 in the Circuit Court of Boone County, Missouri. The complaint alleges that Landmark Bank improperly charged overdraft fees where a transaction was initially authorized on sufficient funds but later settled negative due to intervening transactions. The complaint asserts a claim for breach of contract, which incorporates the implied duty of good faith and fair dealing. Plaintiff seeks to represent a proposed class of all Landmark Bank checking account customers from Missouri who were allegedly charged overdraft fees on transactions that did not overdraw their checking account. Plaintiff seeks unspecified actual, statutory, and punitive damages as well as costs, attorneys' fees, prejudgment interest, an injunction, and other relief as the Court deems proper for herself and the putative class. Simmons Bank denies the allegations and is vigorously defending the matter. Simmons First National Corporation, an Arkansas corporation organized in 1968, is a financial holding company registered under the Bank Holding Company Act of 1956, as amended. SIMMONS FIRST: Settlement Reached in Walkingstick and Fort Suit --------------------------------------------------------------- Simmons First National Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that a settlement in principle has been reached in the putative class action suit initiated by Danny Walkingstick and Whitnye Fort. On May 22, 2019, Danny Walkingstick and Whitnye Fort filed a putative class action complaint against Simmons Bank in the United States District Court for the Western District of Missouri. The operative complaint alleges that Simmons Bank improperly charges overdraft fees on transactions that did not actually overdraw customers' accounts by utilizing the checking account's "available balance" to assess overdraft fees instead of the "ledger balance." Plaintiffs' claims include breach of contract and unjust enrichment, and they seek to represent a proposed class of all Simmons Bank checking account customers who were assessed an overdraft fee on a transaction that purportedly did not overdraw the account. Plaintiffs seek unspecified damages, costs, attorneys' fees, pre- and post-judgment interest, and other relief as the Court deems proper for themselves and the putative class. Simmons Bank denies the allegations but has reached a settlement in principle with the plaintiffs to resolve this matter, subject to the preparation and execution of a mutually acceptable settlement agreement and release, as well as the court's approval. The settlement is not expected to have a material adverse effect on the Company's business, consolidated results of operations, financial condition, or cash flows. Simmons First National Corporation, an Arkansas corporation organized in 1968, is a financial holding company registered under the Bank Holding Company Act of 1956, as amended. SIMMONS FIRST: Wilkins Putative Class Suit Underway --------------------------------------------------- Simmons First National Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that Simmons Bank continues to defend a putative class action suit initiated by Shunda Wilkins, Diann Graham, and David Watson. On June 29, 2020, Shunda Wilkins, Diann Graham, and David Watson filed a putative class action complaint against Simmons Bank in the United States District Court for the Eastern District of Arkansas. The complaint alleges that Simmons Bank improperly charges multiple insufficient funds or overdraft fees when a merchant resubmits a rejected payment request. The complaint asserts claims for breach of contract and unjust enrichment. Plaintiffs seek to represent a proposed class of all Simmons Bank checking account customers who were charged multiple insufficient funds or overdraft fees on resubmitted payment requests. Plaintiffs seek unspecified damages, costs, attorney's fees, pre-judgment interest, an injunction, and other relief as the Court deems proper for themselves and the purported class. Simmons Bank denies the allegations and is vigorously defending the matter. Simmons First National Corporation, an Arkansas corporation organized in 1968, is a financial holding company registered under the Bank Holding Company Act of 1956, as amended. SOLARWINDS CORP: Bid to Junk Cyber Incident Related Suit Pending ---------------------------------------------------------------- SolarWinds Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss filed in the consolidated securities class action suit related to the Cyber Incident, is pending. The company was a victim of a cyberattack on the company's Orion Software Platform and internal systems, or the Cyber Incident. The company, together with its partners, have undertaken extensive measures to investigate, contain, eradicate, and remediate the Cyber Incident. As the company disclosed in its investigatory update, it had substantially completed this process and believes the threat actor is no longer active in its environments. As a result of the Cyber Incident, the company was subject to numerous lawsuits and investigations. Multiple class action lawsuits alleging, among other things, violations of the federal securities laws are pending against us and certain of our current and former officers. The complainants seek certification of a class of all persons who purchased or otherwise acquired the company's securities during set periods of time and unspecified monetary damages, costs and attorneys' fees. In August 2021, the Company and all other named defendants in the securities class action filed motions to dismiss the consolidated class action complaint which is pending before the court. In addition, a shareholder derivative action, purportedly on behalf of the Company, is pending in the Western District of Texas asserting breach of duty and other claims against certain of the company's current and former officers and directors in connection with the cyberattack. SolarWinds said, "We dispute the allegations in these complaints and intend to defend against the claims." SolarWinds Corporation is a provider of information technology, or IT, infrastructure management software. The Company designs and develops information technology management software. SolarWinds offers solutions such as network performance monitoring, configuration, virtualization, database management, hosted logs, security, and configuration. SORRENTO THERAPEUTICS: Sept. 2 Hearing on Bid to Junk Zenoff Suit ----------------------------------------------------------------- Sorrento Therapeutics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the hearing on the motion to dismiss the consolidated putative class action suit headed by Andrew Zenoff, is set for September 2, 2021. On May 26, 2020, Wasa Medical Holdings filed a putative federal securities class action in the U.S. District Court for the Southern District of California, Case No. 3:20-cv-00966-AJB-DEB, against the Company, its President, Chief Executive Officer and Chairman of the Board of Directors, Henry Ji, Ph.D., and its SVP of Regulatory Affairs, Mark R. Brunswick, Ph.D. The action alleges that the Company, Dr. Ji and Dr. Brunswick made materially false and/or misleading statements to the investing public by publicly issuing false and/or misleading statements regarding STI-1499 and its ability to inhibit the SARS-CoV-2 virus infection and that such statements violated Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. The suit seeks to recover damages caused by the alleged violations of federal securities laws, along with the plaintiffs' reasonable costs and expenses incurred in the lawsuit, including counsel fees and expert fees. On June 11, 2020, Jeannette Calvo filed a second putative federal securities class action in the U.S. District Court for the Southern District of California, Case No. 3:20-cv-01066-JAH-WVG, against the same defendants alleging the same claims and seeking the same relief. On February 12, 2021, the U.S. District Court for the Southern District of California issued an order consolidating the cases and appointing a lead plaintiff, Andrew Zenoff, and lead counsel. On April 5, 2021, Plaintiff filed a consolidated amended complaint in accordance with the U.S. District Court for the Southern District of California's scheduling order. Pursuant to that scheduling order, the defendants filed their motion to dismiss on May 20, 2021 and Plaintiff filed its opposition to the motion on July 2, 2021. The defendants' reply was filed on August 4, 2021. A hearing date for the motion has been set for September 2, 2021. The Company is defending these matters vigorously. Sorrento Therapeutics, Inc., is a biopharmaceutical company. The Company is engaged in the discovery, acquisition, development and commercialization of drug therapeutics. Its primary focus is to transform cancer into a treatable or chronically manageable disease. It is also developing therapeutic products for other indications, including immunology and infectious diseases. The company is based in San Diego, California ST. FRANCIS: Grant of Exception of Prescription in Rabun Upheld --------------------------------------------------------------- In the case, IRMA RABUN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellant v. ST. FRANCIS MEDICAL CENTER, INC. Defendant-Appellee, Case No. 54,086-CA (2d Cir.), the Court of Appeal of Louisiana, Second Circuit, affirms the trial court's judgment that sustained an exception of prescription filed by the Defendant-Appellee and dismissed with prejudice the claim filed by the Plaintiff-Appellant. On Feb. 1, 2013, Ms. Rabun sustained injuries in an automobile accident caused by a third party. She sought medical treatment at St. Francis on the same day. Ms. Rabun had health insurance with United Healthcare Insurance Co., and St. Francis was a contracted health care provider, which would have allowed for a discounted rate on medical services. However, St. Francis chose not to file a claim with United Health, but instead, on March 21, 2013, filed a medical provider's lien pursuant to La. R.S. 9:4751-4755 against any settlement proceeds Ms. Rabun received from the insurer of the at-fault driver. This lien was for the full, undiscounted amount of the hospital charges, which amounted to $9,452. On Nov. 7, 2013, State Farm Fire and Casualty Company sent a check to Ms. Rabun's attorney payable to St. Francis in the amount of $9,452. Because of the medical lien, Ms. Rabun's attorney placed the check in escrow, where it remains. Allegedly, the lien issued by St. Francis is still in effect, preventing the disbursement of the funds. A class action petition for damages, breach of contract, declaratory relief, and injunctive relief was filed on May 9, 2014, against St. Francis by Ms. Rabun, individually and as representative of a class "on behalf of all others similarly situated." In response, St. Francis filed a motion for summary judgment in which it raised a number of issues. Summary judgment was granted by the trial court on Nov. 13, 2015. This adverse ruling was appealed by Ms. Rabun, and on April 10, 2016, the Court issued its opinion, reversing summary judgment and remanding the matter for further proceedings. Upon remand, the matter was certified as a class action, with Ms. Rabun being appointed as class representative. St. Francis appealed the class certification, which was affirmed by this Court in Rabun II. Thereafter, on October 16, 2020, St. Francis filed an exception of prescription as to the claim of the named plaintiff, Irma Rabun. St. Francis pointed out that, in her petition, Ms. Rabun alleged the notice of lien was sent to her attorney on March 21, 2013. The class action petition alleging violations of the Balance Billing Act by St. Francis, including "maintaining an action at law" against Ms. Rabun by asserting a lien for the undiscounted cost of the medical expenses charged by the hospital, was not filed until May 9, 2014. As recently held by the Louisiana Supreme Court in DePhillips v. Hospital Service District No. 1 of Tangipahoa Parish, 2019-01496 (La. 7/9/20), ___ So. 3d ___, 2020 WL 3867212, Balance Billing Act claims brought by insured patients against contracted healthcare providers are delictual in nature and, as such, are subject to a one-year prescriptive period. Therefore, argued St. Francis, because Ms. Rabun filed suit more than one year after the issuance of the lien, her claims have prescribed. Ms. Rabun urged that her claims were not prescribed. She acknowledged the supreme court's recent DePhillips opinion, but pointed out that, despite finding that claims under the Balance Billing Act are subject to a one-year prescriptive period, the court did not reach the issue of when prescription begins to run under the Act. According to Ms. Rabun, prescription does not begin to run until there is a recovery (payment) from the third party—in other words, an amount to which the lien can be attached. Until that time, whether the lien will ultimately have any effect or cause any recoverable damages is merely speculative. Ms. Rabun did not settle her third-party action and recover damages until November 2013. Her action was filed on May 9, 2014, well within one year of the lien attaching to any settlement funds. Therefore, her claims had not prescribed. A hearing was held on Dec. 9, 2020. The trial court granted the exception filed by St. Francis and dismissed Ms. Rabun's individual claims with prejudice, based on its finding that her claims were untimely since they had not been filed within one year of the issuance of the medical lien. It is from this judgment that Ms. Rabun has appealed. Discussion On appeal, Ms. Rabun contends that her Balance Billing Act claims have not yet prescribed since the lien filed by St. Francis has been neither paid nor withdrawn. Because the lien is still in effect, St. Francis is continuing to maintain the "action at law" of the lien by still attempting to collect from her in contravention of the Balance Billing Act. The Court of Appeals holds that the violation of the Balance Billing Act as alleged in Ms. Rabun's petition -- St. Francis's attempt to collect amounts in excess of the contracted reimbursement rate -- occurred when the hospital issued the lien letter dated March 21, 2013, to Ms. Rabun's attorney. No allegations were made and no evidence was introduced that St. Francis has done anything other than the filing of the lien, which, as found by the court in Stewart, supra, does not constitute a continuous cause of injury giving rise to successive damages, but instead, is one original, wrongful act that has ill effects continuing therefrom. Ms. Rabun had until March 21, 2014, to assert her claims under the Balance Billing Act. Because her petition was not filed until May 9, 2014, more than one year after March 21, 2013, her individual claims under the Balance Billing Act have prescribed. The trial court did not err in granting the exception of prescription filed by St. Francis. Conclusion For the reasons set forth, the Court of Appeals affirms the judgment of the trial court. Costs are assessed to Ms. Rabun, individually and on behalf of all others similarly situated. A full-text copy of the Court's Aug. 11, 2021 Order is available at https://tinyurl.com/majmmz66 from Leagle.com. HOFFOSS DEVALL, LLC, By: J. Lee Hoffoss, Jr., Claude P. Devall, Donald W. McKnight, Counsel for Appellants. MARTZELL, BICKFORD & CENTOLA, PC, By: Scott R. Bickford -- info@mbfirm.com -- Lawrence J. Centola, III. PARKER ALEXANDER, LLC, By: Kevin D. Alexander. LABORDE EARLES LAW FIRM, By: Derrick Earles. BREAZEALE, SACHSE & WILSON, LLP, By: David R. Kelly -- david.kelly@bswllp.com -- Thomas R. Temple, Jr. -- thomas.temple@bswllp.com -- Chris D. Billings -- chris.billings@bswllp.com -- Joseph J. Cefalu, III -- joseph.cefalu@bswllp.com -- Counsel for Appellee. STATE UNIVERSITY: Duguid Appeals Summary Judgment Ruling -------------------------------------------------------- Plaintiffs DANIELLE DUGUID, OLIVIA SCHULTZ, COURTNEY TRUDEAU, JOYCE KAGAN AND TAYLOR WATTS, and GORDON GRAHAM filed an appeal from a court ruling entered in the lawsuit styled DANIELLE DUGUID, et al., Plaintiffs v. STATE UNIVERSITY OF NEW YORK at ALBANY, and MARK BENSON, Defendants, Case No. 1:17-cv-01092-TJM-DJS, in the United States District Court for the Northern District of New York. As reported in the Class Action Reporter on July 19, 2021, Judge Thomas J. McAvoy of the U.S. District Court for the Northern District of New York: -- granted the Defendants' motion for summary judgment; -- denied the Plaintiffs' motion for summary judgment; and -- denied the Plaintiffs' motion for class certification. The case originated in claims by former members of the women's tennis team at the State University of New York at Albany ("SUNY-Albany") that the University violated their rights under Title IX of the Education Amendments of 1972 when the University cancelled the women's tennis program in the spring of 2016. Plaintiff Gordon Graham, who coached the team, joined the suit, adding claims that the University discriminated against him because of his sex and violated his right to equal protection when the University fired him because of his age. All of the former tennis players have either graduated or left the University, and they have now been replaced by other plaintiffs, who contend that the University violated Title IX by failing to provide women with opportunities to participate in intercollegiate athletics in numbers proportionate to their representation in the student body. They seek injunctive relief to address this situation. Gordon Graham's employment discrimination claims remain in the case. The Defendants assert that they decided to discontinue women's tennis at SUNY-Albany "based on a lack of Division 1 competition opportunities." SUNY-Albany had participated in the America East Conference ("AEC") since the University began competing in division one, but several members of the conference had eliminated women's tennis, and after 2015 the AEC no longer had the number of teams necessary for automatic qualification to the NCAA tournament. The conference therefore stopped sponsoring women's tennis. The Plaintiffs contend that the University decided to eliminate the women's tennis team because: (a) of the sex of the players; (b) of the national origins of the players, most of whom came from foreign countries; (c) as part of SUNY-Albany's established practice of favoring men's over women's intercollegiate athletics; (d) as a way to save money; and (e) "the expectation that the tennis team's 65-year-old head coach would retire." They also contend that the University did not make serious efforts to explore ways to provide competitive opportunities for women's tennis players outside of the America East Conference, where the team had participated. The Plaintiffs further contend that the Defendants' attempt to find "alternatives that would allow the women's tennis team to establish opportunities for Division I national tournament participation" were not substantial, and that the Defendants prevented Coach Graham from learning of the team's precarious situation or using his connections to help arrange competition. They also contend that another women's tennis team in the EAC found a new conference home "by agreeing to transfer its football team's participation to the conference as well." The Plaintiffs now seek a review of the order entered by Judge McAvoy granting the Defendants' motion for summary judgment. The appellate case is captioned as DUGUID, et al. v. STATE UNIVERSITY OF NEW YORK at ALBANY, et al., Case No. 21-1927, in the United States Court of Appeals for the Second Circuit, filed on August 5, 2021.[BN] Plaintiffs-Appellants Plaintiffs DANIELLE DUGUID, OLIVIA SCHULTZ, COURTNEY TRUDEAU, JOYCE KAGAN AND TAYLOR WATTS, and GORDON GRAHAM, individually and on behalf of all those similarly situated, are represented by: Bernays T. Barclay, Esq. RIMON, P.C. 255 Patroon Creek Boulevard #4467 Albany, NY 12206 Telephone: (516) 375-2524 E-mail: buz.barclay@rimonlaw.com - and - Carlos F. Gonzalez, Esq. CARLOS F. GONZALEZ, P.A. 815 Ponce De Leon Boulevard, Suite 101 Coral Gables, FL 33134 Telephone: (305) 215-8684 E-mail: cfg@carlosfgonzalez.com STEVEN SCOTT: Order Affirming Summary Judgment in Hagen Reversed ---------------------------------------------------------------- In the case, Jessica Hagen, on behalf of herself and others similarly situated, Appellant v. Steven Scott Management, Inc., Respondent, Case No. A19-1224 (Minn.), Judge Natalie E. Hudson of the Supreme Court of Minnesota affirms in part and reverses in part the decision of the court of appeals' order affirming the district court order granting Scott Management's motion for summary judgment and dismissing all three claims. Appellant Hagen sued her former employer, the Respondent, Scott Management, alleging that it failed to pay her wages in accordance with Minnesota law. Hagen worked as an on-site property caretaker at an apartment complex owned by Scott Management. She also lived in an apartment on the property. She was compensated primarily with credits toward her monthly rent. Hagen alleges that Scott Management's use of rent credits to pay her wages violated the Minnesota Fair Labor Standards Act ("MFLSA"), Minn. Stat. Sections 177.21-.35 (2020), and Minn. Stat. Section 181.79 (2020). She also alleges that Scott Management failed to pay her for every hour she worked during her on-call shifts. In 2015, Scott Management hired Hagen to work part-time as an on-site property caretaker at one of its apartment complexes. Hagen signed an offer of employment outlining her compensation schedule and job responsibilities. The employment offer provided that Hagen would be compensated, in part, in the form of rent credits. The rent credit arrangement worked as follows. For each hour Hagen worked, her monthly rent owed to Scott Management would be reduced by $8.50. Hagen was assigned to work 99.75 hours each month for a maximum rent credit value of $845 per month. If she worked more than 99.75 hours in a month, Scott Management issued her a check for the excess hours worked at her hourly rate of $8.50. The record shows that Hagen received a paycheck, in excess of her rent credits, approximately half the time she worked for Scott Management. She reported the rent credits (as well as the cash) as income on her federal and state tax returns. Payment of wages in the form of rent credit was an express condition of Hagen's employment. She signed an employment offer which provided that "the employee must be a resident of the property where he/she works and must be in a position that requires the employee to live on site in order to qualify for rent credit." She also signed a separate rent-credit agreement stating the same. Hagen did, in fact, live in an apartment on the property where she worked. According to Hagen's job description, one of her essential job duties and responsibilities was that she "may be required to work on an on call basis." Hagen was required to work an on-call shift at least once per week, every fifth weekend, and two holidays each year. While on call, Hagen was required to carry a cellphone owned by Scott Management and to stay within a 20-minute radius of the apartment complex to respond promptly to calls from tenants. Ms. Hagen was not paid for every hour she spent on call. Instead, in accordance with Scott Management's Property Employee Policy Statement, Hagen was compensated "only for the hours actually worked during that time." Hagen's on-call tasks were wide-ranging, and included responding to calls from tenants, shoveling snow, maintaining the community pool, inspecting recently-vacated apartments, and preparing unoccupied apartments for new tenants. Although Hagen was paid for her time spent actually performing these various tasks, she was not paid for the time she spent waiting for calls that might require her to perform them. While on call, Hagen was subject to certain restrictions. She was required to stay within a 20-minute radius of the apartment complex. As a result, she was unable to visit her family members, all of whom lived at least 30 to 45 minutes away. She was prohibited from drinking alcohol. And, at times, Hagen's daily activities, such as grocery shopping, were interrupted by calls from tenants on the cellphone that she was required to carry with her at all times while on call. Ms. Hagen worked as an on-site property caretaker under this arrangement for three years. In November 2018, Hagen sued Scott Management, alleging (1) failure to pay her the minimum wage in violation of the MFLSA; (2) improper deductions from her wages in violation of section 181.79; and (3) failure to pay for all time worked, including her time spent on call and time spent on site waiting to work, in violation of the MFLSA rules promulgated by the Department of Labor and Industry. Scott Management filed a motion for summary judgment. The district court granted the motion and dismissed Hagen's complaint with prejudice. Hagen appealed. The court of appeals affirmed. On the MFSLA wages claim, the court held that an employer may pay the wages of an on-site property caretaker with rent credits so long as the employer complies with the administrative rules adopted by the Department. On the improper deductions claim, the court held that Scott Management did not violate section 181.79 by paying Hagen with rent credits because it concluded that "section 181.79 does not apply when the caretaker agrees to be compensated in the form of rent credits." In addressing Hagen's MFLSA claim that she was not paid for every hour worked, the court held that a plain reading of the definition of "hours worked" in the MFSLA and the accompanying Department rule foreclosed Hagen's argument that time spent on call and on site, but not actually performing tasks, was compensable. Finally, the court of appeals found there to be no disputed issues of material fact and affirmed the district court's grant of summary judgment. The Supreme Court granted Hagen's petition for review. Analysis The case presents three related wage-and-hour issues. First, Hagen alleges that she was not paid the minimum wage as defined in the MFSLA, Minn. Stat. Section 177.23, subd. 4. Second, she alleges that the manner in which she was compensated -- that is, crediting her hours worked against her monthly rent -- was through improper deductions from her wages in violation of section 181.79. Third, she alleges that she was not paid for every hour she worked, arguing that Scott Management failed to pay her for every hour she worked on call "performing duties of her employment" as required by Minn. Stat. Section 177.23, subd. 10. These issues require the Supreme Court to interpret various statutes and administrative regulations governing the calculation and payment of wages. I. Judge Hudson first turns to whether rent credits qualify as "wages" under the Minnesota Fair Labor Standards Act, Minn. Stat. Sections 177.21-.35 (2020). The MFSLA requires employers to pay their employees a minimum wage for every hour worked. Minn. Stat. Section 177.24, subd. 1(b)(1)-(2). The term "wage" is defined by the MFLSA. Minn. Stat. Section 177.23, subd. 4. Hagen focuses primarily on the text and structure of Minn. Stat. Section 177.23, subd. 4. She argues that the Legislature defined "wage" as "compensation payable in" only four ways: (1) cash; (2) check; (3) direct deposit; or (4) electronic fund transfer to a payroll card account. Because rent credit is not one of those four enumerated forms of wages in Minn. Stat. Section 177.23, subd. 4, she contends that Scott Management's use of rent credits to pay her wages violated the MFLSA. Scott Management contends that reading the statute as a whole reveals that the Legislature did not intend to limit the definition of "wage" only to the forms of payment listed in Minn. Stat. Section 177.23, subd. 4. Instead, Scott Management relies on the final clause in subdivision 4 -- "subject to allowances permitted by rules of the department under section 177.28" -- which it claims allows for the payment of wages in other forms contemplated by the Department. Scott Management also directs us to other provisions in the MFLSA which show that rent credits are an acceptable form of paying an employee's wages. Judge Hudson agrees with Scott Management that the term "wage" includes rent credits. Because rent credits paid in accordance with the lodging allowance rule qualify as wages under the MFLSA and the undisputed facts show that Scott Management complied with that rule, Judge Hudson concludes that the district court did not err in granting summary judgment to Scott Management. She therefore affirms the decision of the court of appeals on that issue. II. Next, Judge Hudson must determine whether rent credits are improper deductions from an employee's wages that violate Minn. Stat. Section 181.79. The parties dispute whether rent credits should be considered "deductions" or "wages" under section 181.79. Hagen argues that section 181.79 applies because rent credits are deductions; that is, she earned her wages as a property caretaker and then Scott Management applied rent credits to subtract or take away from her wages due or owed. In contrast, Scott Management argues that rent credits are themselves wages; therefore no deductions occurred that would implicate section 181.79. Thus, at its core, the key inquiry is whether rent credits qualify as wages under section 181.79. Judge Hudson holds that rent credits clearly qualify as wages. She says, Hagen's signed employment offer describes the rent credit arrangement using almost identical language to the definition of "wages" in section 181.79. Hagen's employment offer provided that "your compensation will be paid to you in the form of Rent Credit." This language parallels the definition of "wage" used in section 181.79 as "all compensation paid by the employer." Moreover, the definition of wages in section 181.79 broadly incorporates "all compensation paid in any medium other than cash," such as rent credits. Because Judge Hudson adheres to the Supreme Court's prior definition of the term "wages" in section 181.79 and rent credits clearly fit under that definition, she affirms the court of appeals' decision on that issue. III. Finally, Judge Hudson must determine whether Scott Management paid Hagen for every hour she worked in accordance with the MFLSA. The MFLSA provides that, for on-site employees who reside on their employer's premises, "the term 'hours worked' includes time when the caretaker, manager, or other on-site employee is performing any duties of employment, but does not mean time when the employee is on the premises and available to perform duties of employment and is not performing duties of employment." Ms. Hagen argues that Scott Management was required to pay her for every hour she was on call, even if she was not actively responding to a tenant's call for assistance or performing other work-related tasks. In the alternative, Hagen contends that district court erred in its grant of summary judgment because, when interpreting the "hours worked" rule, the court made a factual determination that Hagen could use her time effectively for her own purposes. Scott Management maintains that it paid Hagen for every hour she worked as required by the MFLSA. Moreover, Scott Management asserts that summary judgment was appropriate because, in light of analogous federal decisions, it is clear that Hagen could use her time effectively for her own purposes while working on call. Judge Hudson concludes that the phrase "performing any duties of employment" and "available to perform duties of employment" creates ambiguity in the statute. She holds that the determination of whether Scott Management's particular on-call restrictions made it so that Hagen could not use her time effectively for her own purposes is a factual one that cannot be resolved by a court at the summary judgment stage. As she has explained before, "summary judgment is inappropriate when reasonable persons might draw different conclusions from the evidence presented." She also "views the evidence in the light most favorable to the party against whom summary judgment was granted." Conclusion Viewing the evidence in the light most favorable to Hagen, Judge Hudson concludes that Hagen has presented sufficient evidence to survive summary judgment. Hagen submitted an affidavit outlining how Scott Management's on-call restrictions limited the extent of the activities she could do while on call. She claimed that certain activities, such as grocery shopping, were occasionally interrupted by calls from tenants seeking assistance. She could not drink alcohol. Nor was she able to visit any of her family members, all of whom lived outside a 20-minute radius of the apartment complex. Reasonable persons considering these types of on-call restrictions could reach different conclusions as to whether Hagen could use her time effectively for her own purposes. Judge Hudson recognizes that a distinction between being able to use one's time effectively or not, while working on call, is an issue that has not been addressed by Minnesota courts. But, under the facts and circumstances of the case, the Judge concludes that such a determination is for a jury, not a judge, to make. By relying on federal cases with similar, but distinct, fact patterns to resolve a genuine material issue of fact (i.e., whether Hagen could use her time effectively for her own purposes), the district court erred when it granted summary judgment to Scott Management. The Judge therefore reverses the court of appeals' decision upholding the grant of summary judgment and remands for trial on whether Scott Management paid Hagen for every hour worked in accordance with the MFLSA. For these reasons, Judge Hudson affirms in part and reverses in part the decision of the court of appeals and remands to the district court for further proceedings consistent with the opinion. A full-text copy of the Court's Aug. 11, 2021 Opinion is available at https://tinyurl.com/3aka3s5k from Leagle.com. A.L. Brown, Joshua R. Williams, Marcus L. Amon, Capitol City Law Group, LLC, in Saint Paul, Minnesota, for the Appellant. Andrew E. Tanick -- andrew.tanick@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., in Minneapolis, Minnesota, for the Respondent. Charles H. Thomas -- admin@cislo.com -- Thomas Godfrey, in Saint Paul, Minnesota, for amicus curiae Southern Minnesota Regional Legal Services, Inc. SUNEERA INC: Calcano Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Suneera Inc. The case is styled as Evelina Calcano, on behalf of herself and all other persons similarly situated v. Suneera Inc., Case No. 1:21-cv-07150 (S.D.N.Y., Aug. 24, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Suneera Inc. -- https://suneera.com/ -- is in the Jewelry, Precious Stones and Precious Metals business.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal SURGALIGN HOLDINGS: Term Sheet Entered in Lowry Putative Class Suit ------------------------------------------------------------------- Surgalign Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company entered into a binding Term Sheet to fully resolve the previously-disclosed putative class action litigation captioned Lowry v. RTI Surgical Holdings, Inc., Civil Action No. 20 C 01939 (MFK). A class action complaint was filed by Patricia Lowry, a purported shareholder of the Company, against the Company, and certain current and former officers of the Company, in the United States District Court for the Northern District of Illinois on March 23, 2020 asserting claims under Sections 10(b) and 20(a) the Securities Exchange Act of 1934 and demanding a jury trial. The court appointed a different shareholder as Lead Plaintiff and she filed an amended complaint on August 31, 2020. On October 15, 2020, the Company and the other-named defendants moved to dismiss the amended complaint. In April 2021, the court denied the defendants' motions to dismiss. On June 30, 2021, the parties to the Lowry Action conducted a mediation session, after which negotiations among the parties continued into July. On July 27, 2021 a binding term sheet settling the Lowry Action was entered into whereby the defendants will pay $10.5 million (inclusive of attorneys' fees and administrative costs) in exchange for the dismissal with prejudice of all claims against the defendants in connection with the Lowry Action. The Lowry Settlement is subject to court approval, among other conditions. The Company anticipates that the settlement payment will be paid by the Company's insurance providers under its directors and officers' insurance policy. As such the Company has recorded a $10.5 million loss contingency and a $10.5 million insurance recovery as of June 30, 2021 within the marketing, general and administrative expense line on the condensed consolidated statements of comprehensive income (loss). A corresponding receivable and liability of $10.5 million was recorded within prepaid and other current assets, and accrued expenses on the condensed consolidated balance sheet. Surgalign Holdings, Inc. is a global medical technology company advancing the science of spine care, focused on delivering innovative solutions that drive superior clinical and economic outcomes. The company is based in Deerfield, Illinois. T-MOBILE USA: Faces Consumer Data Breach Class Action in Wash. -------------------------------------------------------------- Jake Holland, writing for Bloomberg Law, reports that T-Mobile USA Inc. was hit with a pair of class action lawsuits in Washington federal court accusing the telecommunications company of violating the California Consumer Privacy Act. T-Mobile violated the CCPA and acted negligently by failing to protect consumer data from a recent data breach that exposed millions of customers' records, the plaintiffs alleged in their complaints, which were both filed on Aug. 19 in the U.S. District Court for the Western District of Washington. T-Mobile didn't immediately respond to a request for comment about the lawsuits. The telecom giant suffered a data breach revealed earlier this month that compromised millions of customers' names and phone numbers. T-Mobile on Aug. 20 identified additional records that had been breached, but said they didn't contain Social Security numbers or ID information. Plaintiff Veera Daruwalla, a resident of Kern County, California, alleged she's already spent hours addressing privacy concerns stemming from the breach, including reviewing financial and credit statements for evidence of unauthorized activity. T-Mobile violated the CCPA by failing to prevent consumers' nonencrypted personally identifiable information "from unauthorized access and exfiltration, theft, or disclosure as a result of Defendant's violations of its duty to implement and maintain reasonable security procedures and practices appropriate to the nature of the information," attorneys representing Daruwalla and the proposed class wrote. Stephanie Espanoza, plaintiff in a separate class action suit, accused T-Mobile of acting negligently by failing to provide adequate security. Espanoza, a Los Angeles resident, also accused the company of violating the Washington State Consumer Protection Act by committing unfair acts such as providing poor data security. Tousley Brain Stephens PLLC, MoginRubin LLP, Stueve Siegel Hanson LLP, and Hausfeld LLP represent Daruwalla and the proposed class in that lawsuit. The Terrell Marshall Law Group PLLC, Mason Lietz & Klinger LLP, the Consumer Protection Firm, Morgan & Morgan, and the Arnold Law Firm represent Espanoza and the proposed class in that lawsuit. The cases are Daruwalla v. T-Mobile USA Inc., W.D. Wash., No. 2:21-cv-1118, complaint 8/19/21 and Espanoza v. T-Mobile USA Inc., W.D. Wash., No. 2:21-cv-1119, complaint 8/19/21. [GN] T-MOBILE USA: Federman & Sherwood Files Data Breach Class Action ---------------------------------------------------------------- Federman & Sherwood on Aug. 24 disclosed that it has filed a class action lawsuit in the United States District Court for the Western District of Oklahoma on behalf of T-Mobile customers impacted by the recently announced data breach of T-Mobile's systems. Investigations into the breach revealed that cybercriminals were able to access the following highly confidential information: Names, addresses, Social Security numbers, birth dates, and driver's license information. If you received notice of the data breach or have determined that your personal information was comprised, please contact Federman & Sherwood. To learn how to participate in this action, please visit https://www.federmanlaw.com/blog/federman-sherwood-announces-the-investigation-of-the-clearbalance-data-breach/ The lawsuit seeks to recover damages on behalf of all T-Mobile customers who were affected by the data breach. If you wish to discuss this action, obtain further information and participate in this litigation, or should you have any questions regarding this notice or preservation of your rights, please contact: Lauren Martin at lbm@federmanlaw.com or visit the firm's website at www.federmanlaw.com. Contacts: Lauren Martin lbm@federmanlaw.com [GN] TAISHAN GYPSUM: Bayne Suit Moved From N.D. Alabama to N.D. Florida ------------------------------------------------------------------ In the case, RANDY BAYNE, et al., individually, and on behalf of all others similarly situated, Plaintiffs v. TAISHAN GYPSUM COMPANY, LTD. f/k/a SHANDONG TIAHE DONGXIN CO., LTD., et al., Defendants, Case No. 4:17-cv-1286-KOB (N.D. Ala.), Judge Karon Owen Bowdre of the U.S. District Court for the Northern District of Alabama, Middle Division, transfers the action to the U.S. District Court for the Northern District of Florida, Pensacola Division. I. Background The case arises out of the installation of Chinese drywall—used because of a shortage of drywall in the U.S. marketplace after Hurricanes Katrina and Rita -- in Alabama homes and buildings. The Chinese drywall allegedly led to "odd odors, corrosion of metal components, failure of electronics and appliances, and in some cases, physical ailments, such as nose bleeds, skin irritation, and respiratory problems." On Aug. 1, 2017, a group of owners and residents of real property containing the defective, Chinese-manufactured drywall in Alabama brought a putative class action against Taishan and several other Defendants for designing, manufacturing, importing, distributing, delivering, supplying, marketing, inspecting, installing, and selling defective gypsum drywall that was used in their residential and business structures. On Aug. 31, 2017, the United States Judicial Panel on Multidistrict Litigation transferred the case to the U.S. District Court for the Eastern District of Louisiana and assigned it to Judge Eldon E. Fallon for consolidated pretrial proceedings, like discovery. On Jan. 10, 2020, the MDL court approved a Global Class Action Settlement. The claimants in the present action decided to exercise their rights to opt-out of the settlement and proceed independently. On April 15, 2020, this case--the merits of which were never litigated in the MDL--was remanded back to the Court. On Sept. 25, 2020, Taishan filed a motion to dismiss the Plaintiffs' complaint. On Sept. 28, 2020, Defendants Beijing New Building Materials Public Limited Co. ("BNBM"), China National Building Materials Co., Ltd. ("CNBM Co."), and Beijing New Building Materials Group Co., Ltd. ("BNBM Group") also filed a motion to dismiss the Plaintiffs' complaint. On Oct. 23, 2020, the Plaintiffs filed a notice of voluntary dismissal as to Defendants BNBM, CNBM Co., and BNBM Group. The Court dismissed the Plaintiffs' claims against those Defendants without prejudice. On Nov. 12, 2020, the Plaintiffs -- with the Court's leave -- filed an amended complaint. Taishan then filed the present revised motion to dismiss. II. Discussion A. Threshold Burden First, in its motion to dismiss, Taishan asserts that the Plaintiffs have not met their initial burden to plead jurisdiction under the Iqbal/Twombly pleading standards. Under that standard, "to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Looking at the Amended Complaint, Judge Bowdre finds that the Plaintiffs have alleged sufficient facts to meet their threshold burden for pleading personal jurisdiction. The Plaintiffs allege that Taishan is subject to the Alabama Long-Arm Statute for manufacturing, selling, distributing, marketing, and placing gypsum drywall within the stream of commerce with the expectation that consumers in several states, including Alabama, would purchase it. The Judge finds that these allegations are sufficient to meet the threshold burden. B. Personal Jurisdiction Second, Taishan argues that no the Plaintiff can establish personal jurisdiction over Taishan because (1) Taishan is not subject to the general jurisdiction of Alabama courts, as it has no presence or continuous and systematic contacts in Alabama, and because (2) Taishan is not subject to the specific jurisdiction of Alabama courts, as the Plaintiffs cannot show and have not alleged that Taishan "purposefully directed the drywall in their particular property to this State or otherwise availed itself of the privilege of doing business in Alabama." The Eleventh Circuit has set forth a three-part test for satisfying due process when a plaintiff alleges specific jurisdiction. The Court must consider: (1) whether the plaintiff's claims arise out of or relate to at least one of the defendant's contacts with the forum; (2) whether the nonresident defendant purposefully availed himself of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state's laws; and (3) whether the exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice. For the first prong, the court must "focus on the direct causal relationship among the defendant, the forum, and the litigation." For the second prong, purposeful availment, the court must consider foreseeability -- that is, whether "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Judge Bowdre opines that he should apply the broader "stream of commerce" test to the facts of the case. Thus, he considers whether Taishan delivered its drywall into the stream of commerce with the expectation that consumers in Alabama would purchase it. Taishan asserts that the Plaintiffs cannot show that Taishan had contacts with Alabama or "purposefully availed" itself of conducting activities in Alabama because they assert only that Taishan sold drywall to the United States "with the expectation that the drywall would be purchased by thousands of consumers within various States, including but not limited to, Alabama." Taishan argues that the Plaintiffs do not "identify a specific contact that Taishan had with Alabama regarding any Plaintiff's claim" and that "if any of its product reached Alabama, it did so in an unpredictable eddy, not in the stream of commerce."It argues that "to the extent Taishan drywall made its way to Alabama, it would have been through the unilateral activity of a third party." Judge Bowdre finds that the Venture Supply shipping document shows only that drywall came to Alabama through a third-party located in Virginia and not that Taishan had any knowledge or expectation that its drywall might go to Alabama. Contacts with the United States generally or with Virginia specifically are not contacts with Alabama, and the Plaintiffs have not provided evidence that Taishan reasonably expected its drywall to go to Alabama or purposely availed itself of doing business in Alabama. The defective drywall reached Alabama through the apparently unilateral activity of third-party Venture Supply, which is not sufficient for showing that Taishan purposely availed itself of the privilege of conducting activities within Alabama. The Jduge finds that the Plaintiffs have failed to satisfy the second prong of due process analysis. If the Plaintiff satisfies the first two prongs of the due process analysis, Judge Bowdre then considers whether exercising personal jurisdiction comports with "traditional notions of fair play and substantial justice." In doing so, he considers several factors: "(1) 'the burden on the defendant'; (2) 'the forum's interest in adjudicating the dispute'; (3) 'the plaintiff's interest in obtaining convenient and effective relief'; and (4) 'the judicial system's interest in resolving the dispute.'" Judge Bowdre opines that the Plaintiffs have not satisfied the first two prongs of the due process analysis because they have not shown that Taishan had contacts with Alabama and because they have not shown that Taishan delivered its product into the stream of commerce with the expectation that Alabama consumers would purchase it. The Plaintiffs have not established a prima facie case that the court has personal jurisdiction over Taishan. Thus, the Judge forgoes considering whether exercising personal jurisdiction would comply with "traditional notions of fair play and substantial justice." C. Transfer The Plaintiffs request that if the Court finds it lacks specific personal jurisdiction over Taishan that, instead of dismissing the case, the Court transfers the case to the U.S. District Court for the Northern District of Florida, Pensacola Division, for further proceedings so that the Plaintiffs will not have to refile the case and serve Taishan again under the Hague Convention. The Defendants contend that the Plaintiffs have not presented evidence to suggest that their claims arise from Taishan's conduct in Florida and that the only appropriate state for transfer is Virginia, where Venture Supply is located. Under 28 U.S.C. Section 1404(a), Judge Bowdre explains that the Court "may transfer any civil action to any other district or division where it might have been brought." Because the Court is the most convenient court for the Plaintiffs and is not more or less convenient for the foreign defendant, the Judge transfers the action to the U.S. District Court for the Northern District of Florida, Pensacola Division. III. Conclusion Judge Bowdre holds that the Court does not have specific personal jurisdiction over Defendant Taishan. He transfers the action to the U.S. District Court for the Northern District of Florida, Pensacola Division. A full-text copy of the Court's Aug. 13, 2021 Memorandum Opinion is available at https://tinyurl.com/p4na7uhu from Leagle.com. TAPESTRY INC: Blind Users Can't Access Website, Downing Alleges --------------------------------------------------------------- MEGHAN DOWNING, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY SITUATED v. TAPESTRY, INC. d/b/a COACH, a Maryland Corporation; and DOES 1 to 10, inclusive, Case No. 2:21-cv-06381-MCS-GJS (C.D. Cal., Aug. 6, 2021) alleges that the Defendant failed to design, construct, maintain, and operate its Website to be fully and equally accessible to and independently usable by Plaintiff and other blind or visually impaired people. According to the complaint, the Defendant's denial of full and equal access to its Website, https://www.coach.com/, and therefore denial of its products and services offered thereby and in conjunction with its physical locations, is a violation of the Plaintiff's rights under the Americans with Disabilities Act and the California's Unruh Civil Rights Act. Because the Defendant's Website is not fully or equally accessible to blind and visually impaired consumers, resulting in violation of the ADA, the Plaintiff seeks a permanent injunction to cause a change in the Defendant's policies, practices, and procedures so that the Defendant's Website will become and remain accessible to blind and visually-impaired consumers. The Plaintiff is a visually impaired and legally blind person who requires screen-reading software to read Website content using her computer. The Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet this definition have limited vision. Others have no vision. The Defendant offers the website to the public. The website offers features which should allow all consumers to access the goods and services which Defendant offers in connection with its physical locations. The services offered by Defendant include, but are not limited to, the following, which allow consumers to access: handbags such as shoulder bags, hobos, totes, carryalls, satchels, top handles, crossbody bags, belt bags, clutches, backpacks, work bags, and diaper bags; wallets such as large wallets, small wallets, card cases, wristlets, and crossbody wallets; ready-to-wear apparel such as tops, dresses, bottoms, jackets, and outerwear; shoes such as sandals, heels, sneakers, flats, boots, booties, and CitySole sneakers; accessories such as bag accessories, keychains, belts, eyewear, fragrances, hats, scarves, jewelry, product care accessories, tech accessories, travel accessories, and watches. Defendant's website allows consumers to browse product collections such as the Tabby collection, the Beat collection, and the Madison collection. Furthermore, Defendant's website allows consumers to access information regarding frequently asked questions, order statuses, returns & exchanges, shipping, product care, repairs, gift cards, gift, store locations, customer feedback, Defendant's charitable & environmental activities, career opportunities, investor relations, and Defendant's social media accounts.[BN] The Plaintiff is represented by: Thiago Coelho, Esq. Jasmine Behroozan, Esq. Binyamin I. Manoucheri, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: thiago@wilshirelawfirm.com jasmine@wilshirelawfirm.com binyamin@wilshirelawfirm.com TD BANK: Must Face U.S. Credit Card Class Action ------------------------------------------------ Nichola Saminather and Jonathan Stempel, writing for Reuters, report that a U.S. judge on Aug. 18 rejected a request by Toronto-Dominion Bank (TD.TO) to dismiss a proposed class action brought in December by customers who said it had failed to honor its agreement to give them regular credit cards. Customers who obtained credit cards secured by deposits between 2016 and 2019 accused TD of reneging on its promise to let them automatically "graduate" to unsecured cards if they avoided defaulting on payments for seven months. U.S. District Judge Renee Bumb said the timing of TD's review process for the upgrades supported letting the case continue. "Assuming, as the court must, the veracity of plaintiffs' allegations, defendant engaged in wrongful conduct when it promised plaintiffs that their accounts would be automatically reviewed for graduation after seven months, only to not actually do so for two years," the Camden, New Jersey-based judge wrote. TD said it cannot comment on pending litigation. The plaintiffs are seeking damages of at least $5 million (C$6.3 million) from the Canadian bank, claiming that it refused to give them unsecured credit cards even after they had gone between 15 and 37 months without defaulting. The plaintiffs are seeking to pursue a nationwide class action, as well as smaller class actions for customers in New Jersey, New York and Connecticut. TD Bank has U.S. offices in Cherry Hill, New Jersey, a suburb of Philadelphia. TD shares closed down 0.3% at C$85.65 in Toronto, in line with the broader stock benchmark. TD in May agreed to pay $41.5 million to settle a separate U.S. class action lawsuit for charging excess insufficient funds fees on customer accounts. [GN] TEAM INC: Bid to Remand Thai and Esqueda Suits Pending ------------------------------------------------------ Team Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the motion to remand the putative class action suits initiated by Michael Thai and Alex Esqueda, is pending. On June 24, 2019 and August 26, 2020, two putative class action complaints were filed against Team Industrial Services, Inc. in the Superior Court for the County of Los Angeles, California. The plaintiff in the first-filed action is Michael Thai. The plaintiff in the second filed action is Alex Esqueda. All of the claims pleaded in the Esqueda action were also pleaded in the Thai action. Each of the plaintiffs asserts claims for alleged wage and hour violations under the California Labor Code (for alleged unpaid wages, failure to provide meal and rest breaks, and derivative related claims). The Thai action also asserts a putative class claim for violation of the Fair Credit Reporting Act. Both cases were stayed shortly after filing to allow the parties to mediate the claims. On February 23, 2021, the Los Angeles Superior Court designated the Thai and Esqueda actions as related cases. While the parties mediated on March 18, 2021, the cases did not settle. On April 16, 2021, Team Industrial Services, Inc. moved both the Thai and Esqueda actions to the United States District Court for the Central District of California, where they remain pending. Alvin, Tex.-based Team Inc. provides specialty maintenance and construction services required in maintaining high temperature and high pressure piping systems and vessels that are utilized extensively in the refining, petrochemical, power, pipeline, and other heavy industries. TEE JAYE'S: Joint Bid to Extend Case Schedule in Cockrell OK'd -------------------------------------------------------------- In the class action lawsuit captioned as MELINDA COCKRELL, et al., v. TEE JAYE'S COUNTRY PLACE, INC. d/b/a TEE JAYE'S COUNTRY PLACE, Case No. 2:19-cv-04658-JLG-EPD (S.D. Ohio), the Hon. Judge Elizabeth P. Deavers entered an order granting the Parties' joint motion to extend the case schedule as follows: 1. Discovery shall close on November 9, 2021. 2. Defendant's Motion for Decertification of the Collective Action shall be due December 10, 2021, with opposition briefs, and reply briefs due according to S.D. Ohio Civ. R. 7.2. 3. Dispositive Motions shall be due March 11, 2022 with opposition briefs and reply briefs due according to S.D. Ohio Civ. R. 7.2. A copy of the Court's order dated Aug. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3DlU643 at no extra charge.[CC] TELIGENT INC: $6MM Class Settlement to be Heard on Nov. 12 ---------------------------------------------------------- Teligent, Inc. Securities Settlement United States District Court, Southern District of New York Case No. 1:19-cv-03354-VM If you purchased or acquired the common stock of Teligent, Inc. during the period from March 7, 2017 in the aftermarket through the close of regular trading on November 6, 2017, you may be eligible to receive a payment from this settlement. Plaintiff alleges that, between March 7, 2017 and November 6, 2017, Defendants stated that the Company had not received any Form 483 observations from the U.S. Food and Drug Administration ("FDA"). The Complaint further alleges that this was false and misleading, as in the months before March 2017 the FDA had issued a 483 Letter to Teligent and had related correspondence with Teligent regarding it. A Form 483 observation informs a company that the FDA observed potential violations of federal regulations and instructs the company to remedy those violations. As a result of responding to the FDA, and the underlying issues, the Complaint alleges that Teligent's pipeline of new products, along with its ability to develop new products and win FDA approval for them, were harmed. In turn, the Complaint alleges that when Teligent announced poor performance at the end of the Class Period, which was the alleged materialization of the risk from the undisclosed 483 correspondence with the FDA, its stock price dropped substantially, injuring investors who purchased or acquired Teligent stock during the Class Period. This Action alleges that, based on the foregoing circumstances, Defendants violated Section 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"). The Court has not decided for or against Plaintiffs or the Defendants. The parties agreed to attend a mediation session conducted by a third-party neutral mediator, Robert A. Meyer, Esq. Plaintiff and Defendants submitted and exchanged mediation statements summarizing their respective positions. The mediation session was held on October 2, 2020. While the parties did not reach an agreement to settle the Action at the mediation, they continued their negotiations through the Mediator. On April 5, 2021, the parties engaged in another mediation session, for half of a day. Again, the parties did not reach an agreement. However, the parties significantly narrowed the outstanding issues and several weeks later agreed to settle the Action for $6,000,000 in cash. The Settlement allows Plaintiff and the Defendant to avoid the risks and costs of lengthy litigation and the uncertainty of pre-trial proceedings, a trial, and appeals. If approved, the Settlement would permit eligible Settlement Class Members, who file timely and valid Proof of Claim and Release Forms, to receive compensation, rather than risk ultimately receiving nothing. Plaintiff and Plaintiff's Counsel believe the Settlement is in the best interest of all Settlement Class Members. Note: Any capitalized terms not defined herein shall have the meanings ascribed to them in the Stipulation. YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT FILE A CLAIM To qualify for payment, you must submit a Proof of Claim and Release Form to the Claims Administrator. Proof of Claim and Release Forms must be mailed or submitted electronically by December 7, 2021. EXCLUDE YOURSELF You can exclude yourself by sending a written "Request for Exclusion" so that it is postmarked no later than October 22, 2021. OBJECT If you are a Class Member, you can tell the Court what you think about the Settlement. You can object to all or any part of the Settlement, Plan of Allocation, requested attorneys’ fees, costs and expenses, and any service awards for Plaintiffs. You can give reasons why you think the Court should approve them or not. The Court will consider your views. Your objection must be received on or before October 22, 2021. GO TO A HEARING The Court has scheduled a Settlement Fairness Hearing for November 12, 2021 at 10:30 a.m. at the United States District Court for the Southern District of New York, United States Courthouse, 500 Pearl St., New York, NY 10007-1312. DO NOTHING If you are a Class Member and you do nothing, you will not get any money from the Settlement. You will remain in the Settlement Class and be bound by the decisions of the Court in this matter. SPECIAL NOTICE TO BANKS, BROKERS, AND OTHER NOMINEES If you held any Teligent common stock, as a nominee for a beneficial owner, then, as soon as practically possible, you must either: (1) send a copy of the Notice by First-Class Mail to all such Persons; or (2) provide a list of the names and addresses of such Persons to the Claims Administrator. You may email this information to info@TeligentSecuritiesSettlement.com, or mail to: Teligent Securities Settlement Claims Administrator P.O. Box 5324 New York, NY 10150-5324 If you choose to mail the Notice and Proof of Claim yourself, you may obtain from the Claims Administrator (without cost to you) as many additional copies of these documents as you will need to complete the mailing. Regardless of whether you choose to complete the mailing yourself or elect to have the mailing performed for you, you may obtain reimbursement for or advancement of reasonable administrative costs actually incurred in connection with forwarding the Notice and which would not have been incurred but for the obligation to forward the Notice, upon submission of appropriate documentation to the Claims Administrator. TINDER INC: 9th Cir. Reverses Approval of Class Action Settlement ----------------------------------------------------------------- Alison Frankel, writing for Reuters, reports that few phrases are more loaded in class action litigation than "reverse auction" and "sweetheart deal." When a class settlement is described as a sweetheart deal, or when a defendant is accused of engaging in a reverse auction to settle on the cheap, the implication is that class counsel compromised the best interests of the class, presumably in order to collect fees for themselves. The words smack of collusion and shady motives. The class action plaintiffs firm Altshuler Berzon used both phrases when it challenged a class action settlement struck by different plaintiffs lawyers with the dating app Tinder Inc, which was accused of violating a California's anti-discrimination civil rights law when it charged customers over the age of 29 more money than younger users for premium subscriptions. In a February 2020 brief on behalf of objectors to the settlement, Altshuler told the 9th U.S. Circuit Court of Appeals that after Altshuler won an important California state appellate ruling against Tinder in a state-court class action it has been litigating since 2015, the dating app made a deal with rival class action lawyers. The federal court case, Altshuler asserted, was filed only after Altshuler's appellate win -- and Tinder made a deal with the plaintiffs lawyers in federal court to evade hundreds of millions of dollars in exposure in the state-court class action. The settlement in Los Angeles federal court, Altshuler said, was a boon for Tinder, which wound up facing only about $45,000 in claims for a cash payout, and was a windfall for plaintiffs lawyers, whose $1.2 million fee request was unopposed by Tinder. But the settlement was a bust, Altshuler said, for 240,000 Tinder users who were class members in the state case. The federal-court agreement would release their statutory damages claims of $4,000 per offense. "The sweetheart deal . . . raised numerous red flags," Altshuler told the 9th Circuit, including "a reverse-auction situation where the parallel case had already received the imprimatur of the state court of appeal." The 9th Circuit on Aug. 17 reversed approval of the Tinder settlement, ruling in a split decision that U.S. District Judge John Walter of Los Angeles "shirked (his) independent duty to assess the value of the settlement." The trial judge, according to the majority, wasn't adequately skeptical about the value of the settlement, which included an injunction that plaintiffs lawyers counted as a $6 million benefit for the class even though the injunction, which bars age-based pricing for new Tinder users in California, does no good for class members who are already Tinder users. Walter didn't give enough weight to Altshuler's appellate win in the state-court case when he considered the merits of plaintiffs' claims, the 9th Circuit said. And the trial judge failed to probe for collusion based on Tinder's agreement not to challenge the fee request by class counsel. "We find that the district court so underrated the strength of the plaintiff's case, so overstated the settlement value and so overlooked the suggestions of collusion present as to collectively constitute an abuse of discretion," wrote U.S. District Judge Jed Rakoff of Manhattan, sitting by designation, for the majority, which also included Judge Paul Watford. (Judge Consuelo Callahan dissented.) Two phrases you will find nowhere in the 9th Circuit's decision: "sweetheart deal" and "reverse auction." Even though Altshuler's Michael Rubin told me on Aug. 18 that he considers the Tinder settlement a "particularly egregious case" of class counsel "not representing the interests of the class," the 9th Circuit stopped well short of ascribing any untoward motive to plaintiffs lawyers from the Law Offices of Todd M. Friedman and Kristensen LLP, nor to Tinder counsel from Manatt, Phelps & Phillips. Class counsel Todd Friedman and Adrian Bacon and Tinder lawyers Robert Platt and Donald Brown didn't respond to my email queries. But their 9th Circuit briefs show why accusations about collusive class action settlements are always more complicated than settlement challengers suggest. The class counsel brief, for example, pointed out that class settlement talks were overseen by retired California state court judge Louis Meisinger, who also supervised negotiations on a fee award for class counsel. Fee talks, the brief said, only took place after Tinder had agreed to the terms of the class deal – a chronology that, class counsel said, "was strong evidence of a lack of collusion because it showed counsel put the interests of the class first." Moreover, the brief said, class members received tangible benefits from the settlement, which automatically credited their Tinder accounts with 50 of Super Likes, allowing them to indicate particular interest in another user's profile. Super Likes usually cost $1, so the settlement automatically conferred the equivalent of $50 to class members, class counsel said. "Objectors are overly cavalier in their use of the term 'reverse auction,' which . . . is often used inappropriately when counsel in a competing class action are displeased that they are not part of a settlement," class counsel said. Tinder, meanwhile, said in its brief that Altshuler never made overtures to settle the state case, so of course it talked to plaintiffs lawyers in the federal case. "Tinder's dialogue with (them) reflected a desire to resolve this serial litigation," Tinder said. The company also emphasized that Altshuler's appellate win in the state-court class action was no guarantee of class certification or, ultimately, classwide liability. By hyping the ruling's significance, it said, Altshuler was just trying to salvage the leverage it lost in the federal-court settlement. It's not clear what happens next in the Tinder case, which has been remanded to Walter in Los Angeles. Altshuler's Rubin said his firm believes the state-court case, which has been stayed in light of the settlement in federal court, should resume. Or Tinder can try again in federal court. Rubin said it's virtually impossible that the trial judge will approve the original deal after reconsideration, given the 9th Circuit's scathing assessment. But Tinder might want to restart negotiations. If it does, Rubin said, "we would want a seat at the table." That would be a good way for Tinder and class counsel to ward off those dread phrases. [GN] TOTAL INSURANCE: Court Stays Middleton Case Pending Mediation ------------------------------------------------------------- In the class action lawsuit captioned as Middleton v. Total Insurance Brokers, LLC, Case No. 8:21-cv-01259 (M.D. Fla.), the Hon. Judge Kathryn Kimball Mizelle entered an endorsed order granting joint motion to stay case pending Mediation. All deadlines are stayed pending the filing of a mediation report. The parties must complete mediation by October 31, 2021. No later than August 31, 2021, parties must file a joint notice of mediation informing the Court of the time, date, and location of the scheduled mediation. If the mediation results in an impasse, parties shall file a joint case management report no later than 10 days after the filing of the mediation report, and Defendant shall file a response to the Motion to Certify Class Conditionally no later than 14 days after the filing of the mediation report, says Judge Mizelle. The suit alleges violation of the Fair Labor Standards Act.[CC] TRAVELERS COMPANIES: E.D. Missouri Dismisses Edwards Class Suit --------------------------------------------------------------- In the case, GLENN R. EDWARDS, INC., et al., Plaintiffs v. THE TRAVELERS COMPANIES, INC., et al., Defendants, Case No. 4:20-cv-00877-MTS (E.D. Mo.), Judge Matthew T. Schelp of the U.S. District Court for the Eastern District of Missouri, Eastern Division, grants Defendants Travelers Casualty Insurance Company and The Phoenix Insurance Company's Motion to Dismiss. The case is one of the many disputes involving insurance coverage for certain economic losses and ill effects to businesses attributable to SARS-CoV-2, the virus that causes coronavirus disease or COVID-19, and the pandemic. Plaintiffs Glenn R. Edwards, Inc., and Daniel A. Narup DMD, LLC, are two businesses that provide dental services in St. Louis County, Missouri. The Plaintiffs allege that in March of 2020, they both "shut down their practices" in response to recommendations of the Centers for Disease Control, the American Dental Association, and the Missouri Dental Board. Though both businesses paused their practice, there "never was a governmental order in Missouri mandating that dental practices close because of the COVID-19 pandemic." Both the Plaintiffs had insurance policies purchased from or issued by Defendants, Travelers Casualty Insurance Company and The Phoenix Insurance Company, and both Plaintiffs submitted claims in June 2020 for loss of business income and necessary extra expense incurred. The Plaintiffs allege that the Defendants have refused to pay the Plaintiffs though the latter experienced a "physical loss of" their insured properties due to the COVID-19 pandemic. In light of the Defendants' refusal to pay, the Plaintiffs brought the putative class action suit against them. An Amended Complaint brings six counts: Business Income Breach of Contract, Count I; Breach of The Implied Covenant of Good Faith and Fair Dealing Applicable to Business Income, Count II; Declaratory Relief Applicable to Business Income, Count III; Extra Expense Breach of Contract, Count IV; Breach of The Implied Covenant of Good Faith and Fair Dealing Applicable to Extra Expense, Count V; and Declaratory Relief Applicable to Extra Expense, Count VI. Defendants have moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing the Amended Complaint fails to state a claim upon which relief can be granted. Discussion a. The Relevant Policy Provisions The policies at issue only cover "actual loss of Business Income" due to the "necessary 'suspension' of 'operations' during the 'period of restoration'" and only if the suspension was "caused by direct physical loss of or damage to property at the described premises." The policies do not define "loss" or "damage" as used in the phrase "direct physical loss of or damage to property." The Plaintiffs allege that they had a "physical loss of their insured property arising from the COVID-19 pandemic." They argue that they "suffered a 'loss of' their properties when they were unable to use them for the practice of dentistry and their patients suffered a loss of the properties when they were unable to access them for dental services." Since it is a legal conclusion that the Plaintiffs suffered a loss of their properties, Judge Schelp does not assume such allegations are true, but determines that legal conclusion based on the Plaintiffs' pleaded facts. Judge Schelp concludes that, under the plain meaning of the policy language and evaluating the policy as a whole, the Plaintiffs' decisions to close their dental practices did not constitute a "direct physical loss of" their property. Nothing physical happened to Plaintiffs' properties. Rather, there only was a change in circumstances. The coronavirus pandemic and the associated opinions of industry groups and the public may have caused demand for the Plaintiffs' services to plummet, but the transitory reduction of the properties' functionality, based on no direct physical occurrence, does not amount to a loss of their properties under the plain meaning of the policies. In line with many other courts before the Court, Judge Schelp concludes that the Plaintiffs did not plead a "direct physical loss of" its property because it did not plead any "physical alteration of property, or, put another way, a tangible impact that physically alter[ed] property." If the changes in circumstance alone caused by the pandemic qualified as a direct physical loss of the property, then coverage would be "established whenever property cannot be used for its intended purpose." b. Direct Physical Loss of the Plaintiffs' Property The Plaintiffs argue that the "of" in "direct physical loss of or damage to" is "critical" because it shows that it is not the property's loss that is covered but the insured's loss. Thus, since the Plaintiffs were unable to use their properties for the practice of dentistry, they suffered a "loss of" their properties during that time. Judge Schelp finds this reading too strained and against the policy's plain meaning. In doing so, he joins numerous others in finding no coverage under identical language. Besides the ordinary meaning of the coverage provision, other provisions of the policies also demonstrate that the Plaintiffs' alleged inability to use their insured property in a typical manner did not amount to a direct physical loss of property. Since the Plaintiffs alleged no direct physical loss of their property, they were not entitled to Business Income or Extra Expense under the policies' provisions. Thus, the Judge dismisses Count I (Business Income Breach of Contract), Count III (Declaratory Relief Applicable to Business Income), Count IV (Extra Expense Breach of Contract), and Count VI (Declaratory Relief Applicable to Extra Expense). c. Defendants did not breach the implied covenant of good faith and fair dealing. Under Missouri law, a duty of good faith and fair dealing is implied in every contract. A breach of the covenant of good faith and fair dealing occurs where one party 'exercises a judgment conferred by the express terms of the agreement in such a manner as to evade the spirit of the transaction or so as to deny the other party the expected benefit of the contract. The purpose of a good faith and fair dealing cause of action is "to prevent opportunistic behavior where one party exploits changing economic conditions to the detriment of the other party." Judge Schelp has reviewed the Amended Complaint in its entirety along with the Plaintiffs' opposition briefing. Nowhere has the JUdge found allegations that the express terms of the policies conferred a judgment on the Defendants that the Defendants acted on in a manner evading the spirit of the policies or denying the expected benefit of the policies. To the extent the Plaintiffs' allegation is that Defendants exercised a judgment in denying them coverage for their claim, such allegation would not be a proper claim for a breach of the duty of good faith and fair dealing because "an insurance company's denial of coverage itself is actionable only as a breach of contract and, where appropriate, a claim for vexatious refusal to pay." As such, the Judge dismisses Count II and Count V. d. The Exclusion of Loss Due to Virus or Bacteria would apply even if there were a direct physical loss of property. Even if the Plaintiffs' theory that an inability to physically access and use the property in the normal fashion constitutes a "direct physical loss of" the property under the policies, the endorsement entitled "Exclusion of Loss Due to Virus or Bacteria" would apply. The Plaintiffs argue that the COVID-19 pandemic caused their "losses," not the coronavirus, and, therefore, the Virus Exclusion does not apply to their "loss and damage." Given that COVID-19 is nothing more than disease caused by the coronavirus, their argument is untenable. Conclusion Because he concludes that the Plaintiffs did not plead a direct physical loss of or damage to their properties, Judge Schelp holds that their claims fail and will be dismissed. Accordingly, he granted the Defendants' Motion to Dismiss and denied as moot all other remaining Motions. A separate Order of Dismissal will be filed contemporaneously with the Memorandum and Order. A full-text copy of the Court's Aug. 11, 2021 Memorandum & Order is available at https://tinyurl.com/pr2tys5j from Leagle.com. TRUIST FINANCIAL: Discovery Ongoing in Bickerstaff v. SunTrust Bank ------------------------------------------------------------------- Truist Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that discovery ongoing in the class action suit entitled, Bickerstaff v. SunTrust Bank. This class action case was filed in the Fulton County State Court on July 12, 2010, and an amended complaint was filed on August 9, 2010. Plaintiff asserts that all overdraft fees charged to his account which related to debit card and ATM transactions are actually interest charges and therefore subject to the usury laws of Georgia. Plaintiff has brought claims for violations of civil and criminal usury laws, conversion, and money had and received. On October 6, 2017, the trial court granted plaintiff's motion for class certification and defined the class as "Every Georgia citizen who had or has one or more accounts with SunTrust Bank and who, from July 12, 2006, to October 6, 2017 (i) had at least one overdraft of $500.00 or less resulting from an ATM or debit card transaction (the "Transaction"); (ii) paid any Overdraft Fees as a result of the Transaction; and (iii) did not receive a refund of those Fees," and the granting of a certified class was affirmed on appeal. On April 8, 2020, the Company filed a motion seeking to narrow the scope of this class, and on May 29, 2020, it filed a renewed motion to compel arbitration of the claims of some of the class members. On February 9, 2021, the trial court denied both motions as premature but held that the issues could be raised again after the conclusion of discovery, which is currently underway. The Company believes that the claims are without merit. Truist Financial Corporation is a banking organization headquartered in Charlotte, North Carolina. Truist conducts its business operations primarily through its bank subsidiary, Truist Bank, and other nonbank subsidiaries. TRULIEVE INC: Employees & Applicants Class Certified in Lyttle Suit ------------------------------------------------------------------- In the case, LOGAN LYTTLE, on his own behalf and on behalf of all similarly situated individuals, Plaintiff v. TRULIEVE, INC., a Florida Profit Corporation, Defendant, Case No. 8:19-cv-2313-CEH-TGW (M.D. Fla.), Judge Charlene Edwards Honeywell of the U.S. District Court for the Middle District of Florida, Tampa Division, grants in part and denies in part the Plaintiff's Motion for Class Certification. Mr. Lyttle, on behalf of himself and all others similarly situated, brings this Fair Credit Reporting Act action against Trulieve. Trulieve conducts background checks on job applicants as part of a standard screening process. It also occasionally conducts background checks on employees during the course of their employment. In April of 2019, Lyttle applied for employment with Trulieve. Trulieve procured Lyttle's consumer report from Personal Security Concepts, LLC. Lyttle did not know the nature or scope of Trulieve's investigation into his background. Trulieve conditionally offered employment to Lyttle. However, based on the contents of the consumer report, it rescinded the job offer and rejected Lyttle's employment application. Before rescinding the job offer, Trulieve did not provide Lyttle with notice of its intent to rescind the employment offer, a copy of Lyttle's background check, or a summary of his rights. After Trulieve rejected Lyttle's employment application, Lyttle became concerned about the information contained in his consumer report, whether the report was accurate, and the impact of the report on his future employment prospects. The retail regional human resources manager for Trulieve admitted that Trulieve had mistakenly denied employment to Lyttle in April of 2019 based on his consumer report. If Trulieve had provided Lyttle with pre-adverse action notice, a copy of his consumer report, and a summary of rights in April of 2019, Lyttle could have clarified any confusion and started his career at Trulieve. Trulieve did not afford Lyttle an opportunity to address any concerns regarding his consumer report or state his case before rejecting his employment application. Mr. Lyttle brings one claim against Trulieve under 15 U.S.C. Section 1681b(b)(3)(A) on behalf of himself and a class labeled as the "Adverse Action Class," which consists of "all Trulieve applicants and employees in the United States against whom adverse employment action was taken, based, in whole or in part, on information contained in a consumer report obtained within five years preceding the filing of this action through the date of final judgment, who were not provided notice, a copy of their report or summary of rights pursuant to Section 1681b(b)(3)(A)." Mr. Lyttle alleges that Trulieve violated 15 U.S.C. Section 1681b(b)(3)(A) by failing to provide him and other Adverse Action Class members with pre-adverse action notice, a summary of their FCRA rights, and a copy of their consumer report prior to taking adverse action. He further alleges that the violations were willful and that Trulieve "acted in deliberate or reckless disregard of its obligations" and the rights of Lyttle and other Adverse Action Class members under 15 U.S.C. Section 1681b(b)(3)(A). The Court heard oral argument on the Motion for Class Certification, but deferred ruling because Trulieve indicated an intent to challenge subject matter jurisdiction. After the parties resolved that issue, the Court took the Motion for Class Certification under advisement, only for an individual to move for permissive intervention under Rule 24(b) for the purpose of serving as class representative. The Court denied that request. Judge Honeywell holds that because Lyttle has satisfied the requirements under Rule 23(a) and one of the requirements under Rule 23(b), he will certify the Adverse Action Class. However, hewill modify the definition of the Adverse Action Class to provide for a two-year term, rather than a five-year term. The Judge will also approve Lyttle as Class Representative and Lyttle's counsel as the Class Counsel. Accordingly, Judge Honeywell grants in part and denies in part the Plaintiff's Motion for Class Certification. He certifies the following class: All Trulieve applicants and employees in the United States against whom adverse employment action was taken, based, in whole or in part, on information contained in a consumer report obtained within two years preceding the filing of this action through the date of final judgment, who were not provided notice, a copy of their report or a summary of rights pursuant to 15 U.S.C. Section 1681b(b)(3)(A). Judge Honeywell approves Logan Lyttle as Class Representative and his counsel, Marc. R. Edelman, Brandon J. Hill, and Luis A. Cabassa, as the Class Counsel. The parties are provided 30 days from the date of the order to confer on a class notice plan and issues that may arise associated with the administration of the class, including the form and content of the notice, and the establishment of an opt-out period and procedure, and they will advise the Court of these efforts and the existence of any issues that require the Court's resolution. A full-text copy of the Court's Aug. 13, 2021 Order is available at https://tinyurl.com/2h9faxh8 from Leagle.com. U.S. VIRGIN ISLANDS: Bid to Certify Class in Duncan Suit Denied --------------------------------------------------------------- In the case, JENNIFER DUNCAN, individually and on behalf of all others similarly situated, Plaintiff v. THE UNITED STATES VIRGIN ISLANDS, an unincorporated territory of the United States, The Honorable ALBERT BRYAN, JR., Governor of the United States Virgin Islands, JOEL A. LEE, the Director of the Virgin Islands Bureau of Internal Revenue, and BOSEDE BRUCE, the Commissioner Nominee of the Department of Finance of the United States Virgin Islands, Defendants, Case No. 3:18-cv-0057 (D.V.I.), Judge Robert A. Molloy of the U.S. District Court for the District of Virgin Islands, Division of St. Thomas and St. John., denied without prejudice Duncan's Motion to Certify as Class Action, filed Sept. 6, 2018. On Aug. 17, 2018, Duncan filed her Complaint alleging a long history of nonpayment of income tax refunds as well as other statutory violations by the Government of the Virgin Islands, acting through the Virgin Islands Bureau of Internal Revenue ("VIBIR"). Duncan purports to represent a putative class of all corporate and individual Virgin Islands taxpayers who have been owed income tax refunds for longer than six months after filing with VIBIR for any tax year from 2003 to the present. Shortly after filing her Complaint, Duncan moved to certify her putative class on Sept. 6, 2018. The Defendants opposed on Oct. 17, 2018. The parties were subsequently granted leave to file supplemental briefing on class certification. Duncan's Supplemental Brief in Support of Class Certification was filed Sept. 20, 2019. The Defendants' Supplement to Memorandum of Law in Support of Response in Opposition to Motion to Certify as Class Action was filed the same day. Duncan then filed an Amended Complaint on Dec. 8, 2019, with leave of the Court. Discussion The class most recently proposed by Duncan consists of "All persons and entities who: (a) have filed a timely claim for refund of an overpayment of the Virgin Islands Territorial Income Tax for any tax year from at least 2003 to the present, (b) have not been given by the USVI or the BIR, via certified or registered mail, a timely notice of disallowance of such claims, and (c) have not been paid such refunds by the USVI." Specifically "excluded from the proposed class is any Judge to whom this case is assigned as well as his or her immediate family." In considering whether to certify, the Court makes clear that this excluded group includes any individual within the third degree of relationship to any Judge assigned to the case, or his or her spouse, as specified in Duncan's original proposed class definition. This new proposed class materially differs from the one proposed in Duncan's initial Motion. Duncan must demonstrate that her putative class satisfies the requirements of both Fed. R. Civ. P. 23(a) and 23(b) to successfully certify. The requirements for certifying a class action are governed by Rule 23 of the Federal Rules of Civil Procedure. Rule 23(a) provides that one or more members of a class may sue or be sued as representative parties on behalf of all members only if: the class is so numerous that joinder of all members is impracticable; there are questions of law or fact common to the class; the claims or defenses of the representative parties are typical of the claims or defenses of the class; and the representative parties will fairly and adequately protect the interests of the class. These four elements are widely referred to as "numerosity, commonality, typicality, and adequacy of representation, respectively." These four factors ultimately must be demonstrated by a preponderance of the evidence. Judge Molloy opines that Duncan fails to meet the necessary burden for class certification under Rule 23(a). Specifically, Duncan fails to show by a preponderance of the evidence that the claims and defenses applicable to her are typical of those of the unnamed class members and that she will fairly and adequately protect the interests of the class. Thus Duncan fails to meet the requirements for class certification. Judge Molly explains that Duncan has offered evidence that her proposed class consists of 24,364 individuals and 49 corporations in the form of two interrogatory responses prepared by employees of VIBIR. The Defendants' sole argument in opposition of numerosity is that Duncan initially "provided no evidence regarding whether that figure comprised persons, or entities, or both." Because Duncan has since amended her class to include "persons and entities" without requesting the certification of subclasses to differentiate the two, and because Defendants opted not to supplement their argument opposing numerosity, this argument is moot. Moreover, the Defendants' argument is misguided -- by their own interrogatory responses, the number of individuals owed income tax refunds as of Dec. 31, 2018, was 24,364, and the number of corporations owed income tax refunds as of Dec. 31, 2018, was 49. Accordingly, the Jude finds that a proposed class consisting of 24,364 individuals and 49 corporations is "so numerous that joinder of all members is impracticable." As is the case with each of the Rule 23(a) and (b) factors, Duncan must demonstrate satisfaction of Rule 23(a)(4) by a preponderance of the evidence. However, Duncan first asserts through her counsels' unsworn statements merely that her "interests appear to be perfectly aligned with those of the absent class members." This assertion is unsupported by citation to any evidence. The Judge therefore finds that, absent citation to any evidentiary support, Duncan has failed to satisfy Rule 23(a)(4) by a preponderance of the evidence. Conclusion Judge Molloy concludes that under Rule 23(b), "a class action may be maintained if Rule 23(a) is satisfied and if" additional factors are met. Having failed to establish both typicality and adequacy of representation by a preponderance of the evidence, the Judge holds that Duncan has necessarily failed to meet the requisite burden for class certification under Rule 23(a), and the Judge therefore declines to reach the applicability of the Rule 23(b) factors. On the basis of the foregoing, Duncan's Motion to Certify as Class Action is denied without prejudice. An appropriate order follows. A full-text copy of the Court's Aug. 13, 2021 Memorandum Opinion is available at https://tinyurl.com/447c7u4m from Leagle.com. Joseph A. DiRuzzo, III -- jd@diruzzolaw.com -- Alex Golubitsky, DiRuzzo & Company, in Ft. Lauderdale, Florida, for Plaintiff Jennifer Duncan. Aquannette Y. Chinnery, Virgin Islands Department of Justice, St. Thomas, U.S.V.I., for Defendants the United States Virgin Islands, the Honorable Albert Bryan, Jr., Joel A. Lee, and Bosede Bruce. UBER TECHNOLOGIES: Court Denies Doe's Bid to Disclose Complainants ------------------------------------------------------------------ In the case, JANE DOE, Plaintiff, v. UBER TECHNOLOGIES, INC., et al., Defendants, Case No. 19-cv-03310-JSC (N.D. Cal.), Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California denied the Plaintiff's request for the identities and contact information of three women, who complained to Uber about its driver, who assaulted her. Now pending before the Court is a discovery dispute joint letter regarding the Plaintiff's request for the contact information of three women who complained to Uber about the Uber driver who assaulted the Plaintiff. While the Plaintiff has Uber's entire investigative file for each complainant, the Plaintiff contends that these witnesses may disclose additional, relevant information concerning their interactions with Uber following their complaints about the Uber driver. Recognizing the complainants' privacy interests, the Plaintiff proposes that the Court utilizes the Belaire opt-out process that is typically used in class actions. According to the Plaintiff, in deciding whether to order an opt-out procedure for the disclosure of the putative class members' contact information, courts consider whether (1) the putative class members had already voluntarily given their contact information by submitting complaints, (2) the disclosure of contact information does not involve a serious invasion of privacy, and (3) allowing one party the benefit of the contact information is unfair to the opposing party. The Plaintiff contends these factors dictate allowing disclosure of the complainants' contact information with an opt-out procedure because the women voluntarily made complaints about the driver to Uber, the opt-out process protects their privacy interests, and it would be unfair to allow Uber to have exclusive possession of their contact information. Judge Corley is unpersuaded that the limited probative value of the discovery sought outweighs the privacy interests of the complainants. First, she rejects equating complaining about, for example, DVD players, see Pioneer, 40 Cal. 4th at 364, with complaining about a sexual assault or attempted sexual assault. As the "Me Too" movement has revealed, victims of sexual misconduct are often reluctant to complain. Holding that because the victims complained about the driver to Uber their expectation of privacy is less ignores the nature of the conduct about which they are complaining and would potentially discourage future victims from making complaints. Second, disclosure of the contact information would involve a serious invasion of privacy given the nature of the complaints. Given the serious invasion of privacy, an opt-out process does not sufficiently protect the complainants' privacy interests because they may not receive or read whatever notice is sent to them. Third, the case is unlike a putative class action where an employer has access to employee/class members and without a Belaire notice the plaintiff is deprived of equal access to employees. There is no suggestion in the record that Uber is using these complainants as witnesses in the case such that it would be unfair to not share the complainants' contact information with Uber. For all these reasons, Judge Corley denied the Plaintiff's request that the Court orders disclosure of the complainants' identities and contact information through an opt-out process. Her Order disposes of Docket No. 96. A full-text copy of the Court's Aug. 11, 2021 Order is available at https://tinyurl.com/4cvmv9zs from Leagle.com. UBER TECHNOLOGIES: Ontario Court Certifies Drivers' Class Action ---------------------------------------------------------------- Aidan Macnab, writing for Law Times, reports that the Ontario Superior Court has certified the class action brought by Uber drivers, who argue they are employees misclassified as independent contractors. The case involves 366,359 putative class members: those who provided at least one Uber or Uber Eats ride or delivery, between Jan. 1, 2012 and March 1, 2021. The representative plaintiffs for this group say that, as employees, they are entitled to benefits under Ontario's Employment Standards Act and the federal Canada Pension Plan and Employment Insurance Act. The issue of commonality, determined in Heller v. Uber Technologies Inc., 2021 ONSC 5518, will have "far-reaching" implications for the gig economy, says Lior Samfiru, who acted for the plaintiff, David Heller. Though drivers use the Uber app differently -- some drive full time, some part time and all without a set schedule -- the court found they can be grouped together to define a collective employment relationship with Uber, he says. "Given the fact that the gig economy is probably one of the fastest growing sectors that we have, I think that what happens here is going to be extremely important for lawyers, for workers for the general public, even for the government," he says. The plaintiffs raised four causes of action: breach of the Employment Standards Act (ESA), breach of contract, negligence and unjust enrichment. But Superior Court Justice Paul Perell found they had only satisfied the cause of action criterion for the first two and denied certification for negligence and unjust enrichment. While Justice Perell found there were certifiable common issues with the contract and ESA breaches, he found there was not commonality in the question of aggregate damages or punitive damages. Uber first argued a class proceeding was precluded by the arbitration agreement in its employment contract. That dispute went all the way to the Supreme Court of Canada, which ruled Uber's arbitration clause was unconscionable, requiring drivers to bring their claim to the Netherlands for a US$14,500 filing fee. Uber argues its drivers are independent contractors, the status given them in their service agreement, so there cannot be a common issue of employment status misclassification. The matter of status cannot be determined at a common issues trial because, while drivers use the same app, follow the same rules and regulations and have signed the same service agreement, their "employment status is inevitably an idiosyncratic phenomenon that cannot be determined in common," said the defendant. Uber also argued the alleged common issues were not based in fact and lacked commonality, those who did not opt-out of the arbitration and class-action waiver clause should be removed from the class and that the putative class members should wait for the gig economy to be regulated through legislative reform of employment law. The plaintiffs' argument they are drivers rests on three areas of commonality: the functionality of the Uber app, the non-negotiable terms in the service agreements and the rules and regulations imposed by Uber and municipal governments. "The main argument has to do with the control that Uber exerts over these drivers," says Samfiru, co-founder of Samfiru Tumarkin LLP in Toronto. "Uber has long policies -- pages and pages of policies -- that govern how these drivers work." Uber dictates how they charge customers, when customers get a refund, how they drive and the type of insurance they have. There are policies on what type of vehicle they must use and policies related to COVID on mask-wearing, he says. "There's really nothing that a driver can decide for their own, other than when they're going to work… Uber exerts full control and they insist on that control, and you can't drive for Uber unless you agree to abide by all their terms and policies." "I think that's what the court consistently was shown in the certification application." Counsel for Uber did not respond to Law Times request for comment. "It is still important to note that despite this certification decision, there's still a long way to go before this matter is resolved one way or another. There may well be appeals of the certification decision. And when that is all said and done, then we get to deal with the actual merits of the case, which is going to take a very long time… But it's certainly a step in the right direction." [GN] UNIVERSAL HEALTH: Teamsters Local 456 Settlement Granted Final OK ----------------------------------------------------------------- Universal Health Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the settlement in Teamsters Local 456 Pension Fund, et. al. v. Universal Health Services, Inc. et. al., has been granted final approval. In December 2016 a purported shareholder class action lawsuit was filed in U.S. District Court for the Central District of California against the company (UHS) and certain UHS officers alleging violations of the federal securities laws. The case was originally filed as Heed v. Universal Health Services, Inc. et. al. (Case No. 2:16-CV-09499-PSG-JC). The court subsequently appointed Teamsters Local 456 Pension Fund and Teamsters Local 456 Annuity Fund to serve as lead plaintiffs. The case has been transferred to the U.S. District Court for the Eastern District of Pennsylvania and the style of the case has been changed to Teamsters Local 456 Pension Fund, et. al. v. Universal Health Services, Inc. et. al. (Case No. 2:17-CV-02817-LS). In September 2017, Teamsters Local 456 Pension Fund filed an amended complaint. The amended class action complaint alleges violations of federal securities laws relating to disclosures made in public filings associated with alleged practices and operations at our behavioral health facilities. Plaintiffs seek monetary damages for shareholders during the defined class period as a result of the decrease in share price following various public disclosures or reports. In December 2017, the company filed a motion to dismiss the amended complaint. In August 2019, the court granted the company's motion to dismiss. Plaintiffs subsequently filed a motion with the court seeking leave to file a second amended complaint. In April 2020, the court denied Plaintiffs' motion to file a second amended complaint. Plaintiffs filed an appeal with the 3rd Circuit Court of Appeals. During the fourth quarter of 2020, and during the pendency of the appeal, the company reached an agreement to settle this matter, pending final court approval. In July 2021, the court granted final approval of the settlement. Universal Health said, "The net settlement amount, after anticipated commercial insurance proceeds, did not have a material impact on our consolidated financial statements for the year ended December 31, 2020. The settlement is not an admission of liability." Universal Health Services, Inc., through its subsidiaries, owns and operates acute care hospitals, outpatient facilities, and behavioral health care facilities. The company operates through Acute Care Hospital Services, Behavioral Health Care Services, and Other segments. Universal Health Services, Inc. founded in 1978 and is headquartered in King Of Prussia, Pennsylvania. US BANCORP: Kessler Topaz Investigates Consumer Class Action ------------------------------------------------------------ The law firm of Kessler Topaz Meltzer & Check, LLP ("Kessler Topaz") on Aug. 18 disclosed that it is investigating a class action lawsuit against U.S. Bancorp or U.S. Bank (collectively "U.S. Bank"). Specifically, Kessler Topaz is investigating potential claims on behalf of retail banking customers of U.S. Bank. On May 4, 2021, U.S. Bank announced that the U.S. Consumer Financial Protection Bureau ("CFPB") has been conducting an investigation regarding "certain of the company's consumer sales practices." While neither U.S. Bank nor the CFPB have disclosed the exact nature of the investigation, over the past couple of years, the CFPB has been scrutinizing various banks' sales practices in the wake of Wells Fargo's fake-accounts scandal. For example, in 2019 the agency opened a civil investigation into Bank of America to determine whether it violated federal law by opening credit card accounts without customers' knowledge. Last year, the CFPB sued Fifth Third Bancorp for allegedly opening customer accounts without their authorization between 2010 through 2016. That case is expected to go to trial in 2022 or later, unless a settlement is reached. U.S. Bancorp or U.S. Bank customers who were enrolled in banking products or services, such as the opening of new accounts or credit cards or enrollment in overdraft protection, without their knowledge or consent, and would like further information regarding our investigation, can fill out our online form at: https://www.ktmc.com/us-bancorp; email at info@ktmc.com; or contact James Maro at 484-270-1453 or toll free at 888-299-7706. Kessler Topaz Meltzer & Check, LLP prosecutes class actions in state and federal courts throughout the country. Kessler Topaz Meltzer & Check, LLP is a driving force behind corporate governance reform and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). For more information about Kessler Topaz Meltzer & Check, LLP, please visit www.ktmc.com. Some states may consider this an Attorney Advertisement or Advertising Material. Contacts: Kessler Topaz Meltzer & Check, LLP James Maro, Esq. 280 King of Prussia Road Radnor, PA 19087 (888) 299-7706 (toll free) info@ktmc.com [GN] VECTOR GROUP: Parsons Class Action Remains Stayed ------------------------------------------------- Vector Group Ltd. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the purported class action suit entitled, Parsons v. AC & S Inc. remains stayed. In February 1998, in Parsons v. AC & S Inc., a purported class action was commenced on behalf of all West Virginia residents who allegedly have claims arising from their exposure to cigarette smoke and asbestos fibers. The operative complaint seeks to recover unspecified compensatory and punitive damages on behalf of the putative class. The case is stayed as a result of the December 2000 bankruptcy of three of the defendants. No further updates were provided in the Company's SEC report. Vector Group Ltd. is a holding company with subsidiaries engaged in domestic cigarettes manufacturing, real estate development and brokerage. VECTOR GROUP: Young Personal Injury Class Suit Still Stayed ----------------------------------------------------------- Vector Group Ltd. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the purported personal injury class action entitled, Young v. American Tobacco Co., is still stayed. In November 1997, in Young v. American Tobacco Co., a purported personal injury class action was commenced on behalf of plaintiff and all similarly situated residents in Louisiana who, though not themselves cigarette smokers, allege they were exposed to secondhand smoke from cigarettes that were manufactured by the defendants, including Liggett, and suffered injury as a result of that exposure. The plaintiffs seek to recover an unspecified amount of compensatory and punitive damages. No class certification hearing has been held. A stay order entered on March 16, 2016 stays the case pending completion of the smoking cessation program ordered by the court in Scott v. The American Tobacco Co. No further updates were provided in the Company's SEC report. Vector Group Ltd. is a holding company with subsidiaries engaged in domestic cigarettes manufacturing, real estate development and brokerage. VIEW INC: Glancy Prongay & Murray Files Securities Class Action --------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM"), on Aug. 18 disclosed that it has filed a class action lawsuit in the United States District Court for the Northern District of California captioned Mehedi v. View, Inc., et al., (Case No. 21-cv-6374) on behalf of persons and entities that purchased or otherwise acquired View, Inc. ("View" or the "Company") (NASDAQ: VIEW) f/k/a CF Finance Acquisition Corp. II ("CF II") securities between November 30, 2020 and August 16, 2021, inclusive (the "Class Period"). Plaintiff pursues claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"). Investors are hereby notified that they have 60 days from August 18, 2021, the date of this notice, to move the Court to serve as lead plaintiff in this action. If you suffered a loss on your View investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at https://www.glancylaw.com/cases/view-inc/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com or visit our website at www.glancylaw.com to learn more about your rights. View is a technology company that manufactures smart building products that are purportedly designed to improve people's health, productivity, and experience while reducing energy consumption. On March 8, 2021, CF II, a special purpose acquisition company, and View combined via a Business Combination with View as the surviving, public entity. On August 16, 2021, after the market closed, View announced that it "began an independent investigation concerning the adequacy of the company's previously disclosed warranty accrual." On this news, the Company's share price fell $1.26, or over 24%, to close at $3.92 per share on August 17, 2021, on unusually heavy trading volume. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that View had not properly accrued warranty costs related to its product; (2) that there was a material weakness in View's internal controls over accounting and financial reporting related to warranty accrual; (3) that, as a result, the Company's financial results for prior periods were misstated; and (4) as a result, Defendants' statements about its business, operations, and prospects were materially false and misleading and/or lacked reasonable basis at all relevant times. If you purchased or otherwise acquired View securities during the Class Period, you may move the Court no later than 60 days from this notice ask the Court to appoint you as lead plaintiff. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts: Glancy Prongay & Murray LLP, Los Angeles Charles H. Linehan, 310-201-9150 or 888-773-9224 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 www.glancylaw.com shareholders@glancylaw.com [GN] VIEW INC: Kehoe Law Firm Investigates Securities Claims ------------------------------------------------------- Kehoe Law Firm, P.C. continues its securities class action investigation to determine whether View, Inc. ("View" or the "Company")(NASDAQ: VIEW ) violated federal securities laws. View investors should be aware that on August 18, 2021, a class action lawsuit was filed in United States District Court, Northern District of California, on behalf of View investors who purchased, or otherwise acquired, View securities between November 30, 2020 and August 16, 2021, both dates inclusive (the "Class Period"), and suffered financial losses. Throughout the Class Period, according to the class action complaint, the View Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. The View Defendants, according to the complaint, failed to disclose to investors (1) that View had not properly accrued warranty costs related to its product; (2) there was a material weakness in View's internal controls over accounting and financial reporting related to warranty accrual; (3) as a result, the Company's financial results for prior periods were misstated; and (4) as a result of the foregoing, the View Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. View announced in a press release, dated August 16, 2021, that "it will postpone the release of its financial results for the second quarter of 2021." View stated that "[t]he Audit Committee of View's Board of Directors recently began an independent investigation concerning the adequacy of the company's previously disclosed warranty accrual." In an August 16, 2021 10-Q SEC filing, View stated that "[t]he Company cannot predict the duration of the investigation, eventual scope, its outcome, or its impact on the Company's financial results or the Company's assessment of its internal control over financial reporting for prior periods. As a result, the Company has not finalized its financial statements or its assessment of the effectiveness of its disclosure controls and procedures and internal control over financial reporting for the three and six months ended June 30, 2021. The Company expects that it will finalize its financial statements and file the related Second Quarter 10-Q as soon as practicable after the conclusion of the investigation." On this news, shares of View dropped significantly, closing down almost 25%, thereby injuring investors. INVESTORS WHO PURCHASED VIEW SECURITIES AND SUFFERED FINANCIAL LOSSES GREATER THAN $50,000 ARE ENCOURAGED TO COMPLETE KEHOE LAW FIRM'S SECURITIES CLASS ACTION QUESTIONNAIRE OR CONTACT KEVIN CAULEY, DIRECTOR, CLIENT RELATIONS, (215) 792-6676, EXT. 802, KCAULEY@KEHOELAWFIRM.COM, INFO@KEHOELAWFIRM.COM, TO DISCUSS THE SECURITIES CLASS ACTION INVESTIGATION OR POTENTIAL LEGAL CLAIMS. Kehoe Law Firm, P.C., with offices in New York and Philadelphia, is a multidisciplinary, plaintiff–side law firm dedicated to protecting investors from securities fraud, breaches of fiduciary duties, and corporate misconduct. Combined, the partners at Kehoe Law Firm have served as Lead Counsel or Co-Lead Counsel in cases that have recovered more than $10 billion on behalf of institutional and individual investors. This notice may constitute attorney advertising. [GN] VIMEO INC: Appeal in Acaley BIPA Related Class Suit Pending ----------------------------------------------------------- Vimeo, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the appeal in Bradley Acaley v. Vimeo, Inc., No. 19 Civ. 7164 (N.D. Ill.)., to the U.S. Court of Appeals for the Seventh Circuit, is pending. On September 9, 2019, Bradley Acaley filed, on behalf of himself and other similarly situated individuals, a putative class action complaint against Vimeo in the Circuit Court of Cook County, Illinois. Vimeo thereafter removed the case to the U.S. District Court for the Northern District of Illinois, where it is now pending. In his complaint, plaintiff asserts that Vimeo's Magisto mobile application collected facial biometric information in a manner that violated his rights under the Illinois Biometric Information Privacy Act ("BIPA"), and he seeks, among other things, injunctive relief and monetary damages. Vimeo moved to compel arbitration of the case. On June 1, 2020, the district court denied Vimeo's motion. On June 18, 2020, Vimeo filed an appeal to the U.S. Court of Appeals for the Seventh Circuit. On June 23, 2020, the district court administratively closed the case pending appeal. Vimeo believes that the allegations in this lawsuit are without merit and will defend vigorously against them. Vimeo, Inc. is an American video hosting, sharing, and services platform provider headquartered in New York City. Vimeo focuses on the delivery of high-definition video across a range of devices. Vimeo's business model is through software as a service. VIRGINIA: Polak Appeals Summary Judgment Ruling in Labor Suit ------------------------------------------------------------- Plaintiff Elizabeth Polak filed an appeal from a court ruling entered in the lawsuit styled ELIZABETH C. ABE, et al., individually and on behalf of persons similarly situated v. VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY, Case No. 3:20-cv-00270-JAG, in the United States District Court for the Eastern District of Virginia at Richmond. The Plaintiffs, current and former female Department of Environmental Quality (DEQ) employees, allege that DEQ's past practice of using pay history to determine a new hire's salary perpetuates the gender wage gap and violates the Equal Pay Act. On July 1, 2019, DEQ stopped using pay history to determine a new hire's salary. In this case, the Plaintiffs sought damages to remedy the wage disparity they experienced before July 1, 2019. Ms. Polak now seeks a review of the Court's Memorandum Order dated July 7, 2021, granting DEQ's motion for summary judgment. In that order, the Court held that Polak cannot establish a prima facie EPA claim because she and Plaintiff Moon do not have virtually identical jobs. The Court directed the Clerk to close the case. The appellate case is captioned as Elizabeth Polak v. Virginia Department of Environmental Quality, Case No. 21-1848, in the United States Court of Appeals for the Fourth Circuit, filed on August 4, 2021.[BN] Plaintiff-Appellant ELIZABETH POLAK, individually and on behalf of persons similarly situated, is represented by: Timothy Earl Cupp, Esq. CUPP & CUPP, PC 1951 Evelyn Byrd Avenue P. O. Box 589 Harrisonburg, VA 22803-0000 Telephone: (540) 432-9988 - and - Sydney Edmund Rab, Esq. SYDNEY E. RAB LAW FIRM 5407 Langdon Drive Richmond, VA 23225 Telephone: (804) 822-8981 E-mail: msydrab@comcast.net - and - Tim Schulte, Esq. Blackwell N. Shelley, Jr., Esq. SHELLEY CUPP SCHULTE, P.C. 3 West Cary Street Richmond, VA 23220 Telephone: (804) 644-9700 E-mail: schulte@scs-work.com Defendant-Appellee VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY is represented by: Faith Abar Alejandro, Esq. Wade Travis Anderson, Esq. Brian Garth Muse, Esq. Cullen Dennis Seltzer, Esq. SANDS ANDERSON, PC P. O. Box 1998 Richmond, VA 23218-1998 Telephone: (804) 783-7278 E-mail: falejandro@sandsanderson.com wanderson@sandsanderson.com bmuse@sandsanderson.com cseltzer@sandsanderson.com VISIONS GENTLEMEN'S: Suit Seeks Minimum Wage & OT Under FLSA ------------------------------------------------------------ ANGELICA HENDERSON-ALLEN v. VISIONS GENTLEMEN'S CLUB & INVERTED ART GALLERY, Case No. 6:21-cv-00303 (E.D. Tex., Aug. 6, 2021) is brought on behalf of the Plaintiff and all others similarly situated alleging that causes of action against the Defendant resulting from Defendant's evading the mandatory minimum wage and overtime provisions of the Fair Labor Standards Act and illegally absconding with Plaintiff's tips. These causes of action arise from Defendant's willful actions while Plaintiff was employed by the Defendant from September 17, 2019 through June 3, 2020. Throughout her employment with Defendant, Plaintiff has been denied minimum wage payments and denied overtime as part of Defendant's scheme to classify Plaintiff and other dancers/entertainers as "independent contractors," says the suit. The Defendant operates an adult-oriented entertainment facility located at 8542 TX-v 31, Tyler, Texas.[BN] The Plaintiff is represented by: Jarrett L. Ellzey, Esq. Leigh Montgomery Texas, Esq. ELLZEY & ASSOCIATES, PLLC 1105 Milford Street Houston, TX 77066 Telephone: (713) 554-2377 Facsimile: (888) 276-3455 E-mail: jarrett@ellzeylaw.com leigh@ellzeylaw.com VIVID SEATS: August 30 Settlement Claims Filing Deadline Set ------------------------------------------------------------ Joe Ducey, writing for ABC15, reports that from canceled concert refunds to brain supplement false advertising claims, class action lawsuits aim to hold some companies accountable. And when the businesses settle those suits, it can mean money for customers. Vivid Seats is a popular online ticket resale site. A lawsuit alleges the company had a 100% buyer refund guarantee that wasn't being followed. Recent Stories from abc15.com 4C Medical Group: Importance of COVID-19 vaccine and other adult immunizations "If you bought tickets through Vivid Seats and didn't receive 100% of the money back due to events being canceled, this one may impact you," says Scott Hardy with topclassactions.com. If you bought a ticket before April 2021 for an event between Sept 2016 and April 2021, and it was postponed, rescheduled, or canceled, you could qualify for cash back or 110% credit towards a future ticket. The company claims no wrongdoing in settling this suit. The deadline to file a claim is August 30, 2021. Find out more about this lawsuit settlement at https://bit.ly/3sQ9jWk. Another class-action suit alleges the supplement Neuriva falsely advertised products as being clinically and scientifically proven to enhance performance. A settlement means if you bought products between January 2019 and April 23, 2021, you could get back up to $65 back with proof of purchase. The company claims no wrongdoing. The deadline to file a claim is October 1, 2021. Blue Cross Blue Shield insures one in three Americans. A lawsuit accuses them of trying to limit market competition. A settlement is paying out $2.67 billion. You qualify if you were covered by the insurer between February 2008 and October 2020. BCBS says how much of that $2.67 billion claimants could get depends on the number of claims filed, premiums paid, and whether the insurance was fully insured or self-funded. The company claims no wrongdoing. The deadline to file a claim is November 5, 2021. [GN] VOYA FINANCIAL: Advance Trust COI Class Suit Ongoing in Colorado ---------------------------------------------------------------- Voya Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend against a cost of insurance (COI) litigation entitled, Advance Trust & Life Escrow Services, LTA v. Security Life of Denver (D. Colo. Case No. 1:18-cv-01897), in Colorado. Cost of insurance litigation includes Advance Trust & Life Escrow Services, LTA v. ReliaStar Life Insurance Company (USDC District of Minnesota, No. 1:18-cv-02863) (filed October 5, 2018), a putative class action in which Plaintiff alleges that the Company's universal life insurance policies only permitted the Company to rely upon the policyholders' expected future mortality experience to establish the cost of insurance, and that as projected mortality experience improved, the policy language required the Company to decrease the cost of insurance. Plaintiff alleges that the Company did not decrease the cost of insurance as required, thereby breaching its contract with the policyholders, and seeks class certification. The Company denies the allegations in the complaint, believes the complaint to be without merit, and will defend the lawsuit vigorously. No further updates were provided in the Company's SEC report. Voya Financial, Inc. operates as a retirement, investment, and employee benefits company in the United States. It operates through four segments: Retirement, Investment Management, Employee Benefits, and Individual Life. The company was formerly known as ING U.S., Inc. and changed its name to Voya Financial, Inc. in April 2014. Voya Financial, Inc. was incorporated in 1999 and is based in New York, New York. WEST AMERICAN: Melcorp. Inc. Appeals Judgment in Insurance Suit --------------------------------------------------------------- Plaintiff Melcorp, Inc. filed an appeal from a court ruling entered in the lawsuit styled MELCORP, INC. d/b/a GREAT STEAK & POTATO COMPANY, and all others similarly situated, Plaintiffs, v. LIBERTY MUTUAL INSURANCE COMPANY and WEST AMERICAN INSURANCE COMPANY, Defendants, Case No. 1:20-cv-04839, in the U.S. District Court for the Northern District of Illinois, Eastern Division. As reported in the Class Action Reporter on Sep. 4, 2020, the lawsuit arises out of Defendants' failure to provide insurance coverage for the business income Plaintiff lost because of the ongoing Coronavirus (COVID-19) pandemic. In 2019, Defendants sold Plaintiff a commercial property and casualty insurance policy with an effective date of coverage of April 1, 2019. Pursuant to the Building and Personal Property Coverage Form-an "all-risk" property insurance policy-Defendants agreed to "pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss." On March 17, 2020, the Fox Valley Mall notified its tenants including the Plaintiff that it would temporarily close the mall from March 19, 2020 through March 31, 2020 "[i]n response to [then-current] federal and local guidelines with respect to COVID-19 developments." On or about March 19, 2020, pursuant to the mall's closure, Plaintiff suspended all restaurant operations and began suffering an ongoing loss of business income. On April 17, 2020, Plaintiff filed a claim with Defendants related to its lost business income. On April 27, 2020, Defendants denied coverage for the lost income Plaintiff suffered because of the Closure Orders. Plaintiff brings this action for declaratory relief and breach of contract on behalf of itself and all other similarly situated Illinois businesses. The Plaintiff now seeks a review of the Court's Memorandum Opinion and Order dated July 8, 2021, granting West American's motion for judgment on the pleadings. The appellate case is captioned as Melcorp, Inc. v. West American Insurance Company, Case No. 21-2448, in the U.S. Court of Appeals for the Seventh Circuit, filed on August 9, 2021. The briefing schedule in the Appellate Case states that: -- Transcript information sheet was due August 23, 2021; and -- Appellant's brief is due on or before September 20, 2021 for Melcorp, Inc.[BN] Plaintiff-Appellant MELCORP, INC., doing business as GREAT STEAK & POTATO COMPANY, and all others similarly situated, are represented by: Robert R. Duncan, Esq. DUNCAN LAW GROUP, LLC 161 N. Clark Street Chicago, IL 60601 Telephone: (312) 202-3283 E-mail: rrd@duncanlawgroup.com Defendant-Appellee WEST AMERICAN INSURANCE COMPANY is represented by: Jonathan K. Barger, Esq. BUTLER WEIHMULLER KATZ CRAIG LLP 115 S. LaSalle Street Chicago, IL 60603-3975 Telephone: (312) 456-0900 WESTMINSTER CHILD: Fails to Pay Overtime, Denton Suit Claims ------------------------------------------------------------ DONNA DENTON, on behalf of herself and all others similarly situated, v. WESTMINSTER CHILD CARE CENTER, Case No. 3:21-cv-00026-NKM (W.D. Va., Aug. 6, 2021) is a claim for unpaid overtime in violation of the Fair Labor Standards Act of 1938. The Plaintiff contends that Defendant has violated and continues to violate the FLSA by having a policy or practice of prohibiting teachers and other hourly employees from clocking in more than 10 minutes (or at times 5 or 15 minutes) before the start of school, while at the same time suffering or permitting teachers and other hourly employees to work off the clock before clocking in. This resulted and results in Plaintiff and all similarly situated employees receiving less overtime wages than they are entitled to receive under the FLSA, the Plaintiff adds. The Plaintiff, on behalf of herself and all similarly situated employees, seeks unpaid overtime, liquidated damages, and attorneys’ fees and costs arising out of the Defendant's alleged FLSA violations. Denton is a resident of Virginia who was employed by Defendant as a Lead Teacher. Westminster Child Care Center is a Virginia corporation with its principal office at 450 Rugby Rd., Charlottesville, VA, 22903.[BN] The Plaintiff is represented by: Timothy Coffield, Esq. COFFIELD PLC 106-F Melbourne Park Circle Charlottesville, VA 22901 Telephone: (434) 218-3133 Facsimile: (434) 321-1636 E-mail: tc@coffieldlaw.com YALLA GROUP: Levi & Korsinsky Reminds of October 12 Deadline ------------------------------------------------------------ Levi & Korsinsky, LLP on Aug. 18 disclosed that class action lawsuits have commenced on behalf of shareholders of the following publicly-traded companies. Shareholders interested in serving as lead plaintiff have until the deadlines listed to petition the court. Further details about the cases can be found at the links provided. There is no cost or obligation to you. YALA Shareholders Click Here: https://www.zlk.com/pslra-1/yalla-group-limited-loss-submission-form?prid=18667&wire=1 PHG Shareholders Click Here: https://www.zlk.com/pslra-1/koninklijke-philips-n-v-loss-submission-form?prid=18667&wire=1 LIVE Shareholders Click Here: https://www.zlk.com/pslra-1/live-ventures-incorporated-loss-submission-form?prid=18667&wire=1 * ADDITIONAL INFORMATION BELOW * Yalla Group Limited (NYSE:YALA) YALA Lawsuit on behalf of: investors who purchased September 30, 2020 - August 9, 2021 Lead Plaintiff Deadline: October 12, 2021 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/yalla-group-limited-loss-submission-form?prid=18667&wire=1 According to the filed complaint, during the class period, Yalla Group Limited made materially false and/or misleading statements and/or failed to disclose that: the Company overstated its user metrics and revenue and, as a result, the Company's public statements were materially false and misleading at all relevant times. Koninklijke Philips N.V. (NYSE:PHG) PHG Lawsuit on behalf of: investors who purchased June 11, 2016 - July 23, 2021 Lead Plaintiff Deadline: October 15, 2021 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/koninklijke-philips-n-v-loss-submission-form?prid=18667&wire=1 According to the filed complaint, during the class period, Koninklijke Philips N.V. made materially false and/or misleading statements and/or failed to disclose that: (i) Philips had deficient product manufacturing controls or procedures; (ii) as a result, the Company's Bi-Level PAP and CPAP devices and mechanical ventilators were manufactured using hazardous materials; (iii) accordingly, the Company's sales revenues from the foregoing products were unsustainable; (iv) the foregoing also subjected the Company to a substantial risk of a product recall, in addition to potential legal and/or regulatory action; and (v) as a result, the Company's public statements were materially false and misleading at all relevant times. Live Ventures Incorporated (NASDAQ:LIVE) LIVE Lawsuit on behalf of: investors who purchased December 28, 2016 - August 3, 2021 Lead Plaintiff Deadline: October 12, 2021 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/live-ventures-incorporated-loss-submission-form?prid=18667&wire=1 According to the filed complaint, during the class period, Live Ventures Incorporated made materially false and/or misleading statements and/or failed to disclose that: 1) Live's earnings per share for FY 2016 was actually only $6.33 per share; (2) the Company used an artificially low share count to boost the earnings per share by 40%; (3) Live had overstated pretax income for fiscal 2016 by 20% by including $915,500 of "other income" related to certain amendments that were not negotiated until after the close of the fiscal year; (4) Live's acquisition of ApplianceSmart did not close during first quarter 2017; (5) using December 30, 2017 as the "acquisition date" and recognizing income therefrom did not conform to generally accepted accounting principles; (6) by falsely stating that the acquisition closed during the quarter, Live recognized bargain purchase gain, which enabled the Company to report positive net income in what would otherwise have been an unprofitable quarter; (7) between fiscal 2016 and fiscal 2018, Live's CEO received approximately 94% more in compensation than was disclosed to investors; and (8) as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. You have until the lead plaintiff deadlines to request that the court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a nationally recognized firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation and have recovered hundreds of millions of dollars for aggrieved shareholders. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Levi & Korsinsky, LLP Joseph E. Levi, Esq. Eduard Korsinsky, Esq. 55 Broadway, 10th Floor New York, NY 10006 jlevi@levikorsinsky.com Tel: (212) 363-7500 Fax: (212) 363-7171 www.zlk.com [GN] ZYNGA INC: Bourgeois Class Suit in Canada Underway -------------------------------------------------- Zynga Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a class action suit initiated by Gabriel Bourgeois. On March 2, 2021, a class-action lawsuit was filed in the Superior Court of Quebec, in the province of Montreal, Canada. The lawsuit was filed by named plaintiff Gabriel Bourgeois, who purchased loot box items in connection with his use of the Marvel Strike Force and Pokemon Go! electronic and online games (plaintiff does not allege that he purchased a loot box in connection with any Zynga game). Plaintiff alleges that Zynga and multiple other gaming defendants have unlawfully developed, own, and operate an unlicensed gaming system, through the use of loot boxes in connection with their games. Plaintiff asserts that defendants have unlawfully offered loot boxes to the public in connection with their games; failed to properly disclose the odds of winning in connection with loot boxes; and failed to employ appropriate safeguards surrounding minors' ability to purchase loot boxes. The specific Zynga games at issue—which plaintiff does not claim to have played—include CSR Racing 2, Empires & Puzzles, Farmville: Country Escape and Dawn of Titans. Plaintiff collectively asserts that by offering loot boxes, all defendants have violated the Criminal Code of Canada provisions that regulate gaming; the Competition Act of Canada; and various individual consumer protection laws of the individual Canadian provinces. Plaintiff seeks monetary damages in the form of compensatory and punitive damages, on his own behalf and that of a nationwide Canadian class. Zynga is reviewing plaintiff's claims and intends to mount a vigorous defense. Zynga Inc. is an American social game developer running social video game services and founded in April 2007 with headquarters in San Francisco, California, United States. The company primarily focuses on mobile and social networking platforms. Zynga states its mission as "connecting the world through games. ZYNGA INC: Data Incident Related Class Suit Underway ---------------------------------------------------- Zynga Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a consolidated class action suit related to the "Data Incident". On September 12, 2019, the Company announced that an incident had occurred that may have involved player data (the "Data Incident"). Upon the company's discovery of the Data Incident, an investigation immediately commenced and advisors and third-party forensics firms were retained to assist. The investigation revealed that, during the third quarter of 2019, outside hackers illegally accessed certain player account information and other Zynga information, and that no financial information was accessed. The Company has provided notifications to players, investors, regulators and other third parties, where the company believes notice was required or appropriate. The Company has exchanged correspondence with certain regulators as a result of the incident. The Company has also received and has responded to data subject access requests from certain European Union players of Zynga's games. Since March 3, 2020, five consumer class action complaints have been filed in connection with the Data Incident in federal court. On March 3, 2020, two plaintiffs – minor "I.C." (acting through his parent Nasim Chaudhri) and Amy Gitre – filed a class action complaint arising out of the Data Incident (the "Chaudhri complaint"), generally alleging that Zynga failed to reasonably safeguard certain player information, including names, email addresses, and passwords (among other items); failed to provide them with timely notification of the breach; and made misleading representations concerning the safety and security of plaintiffs' personal information. Plaintiffs allege claims against Zynga under several state law theories, including negligence, intrusion upon seclusion, failure to comply with data breach notification statutes, and unjust enrichment, and they seek injunctive relief and damages. Zynga filed a motion to compel arbitration and arbitration-related discovery on May 8, 2020. On March 23, 2020, plaintiffs Carol Johnson and Lisa Thomas filed a second class action complaint in the Northern District of California federal court (the "Johnson complaint"). Similar to the Chaudhri complaint, the Johnson plaintiffs – residents of Missouri and Wisconsin – assert Zynga failed to adequately protect certain player information, including names, email addresses, and passwords (among other items). Plaintiffs contend that, despite Zynga's representations in its privacy policy that sensitive player information would be adequately protected, plaintiffs' passwords were stored using inadequate hashing methods or in plain text. Plaintiffs allege that the lack of adequate security measures caused them harm as a result of the Data Incident, and they assert numerous various claims against Zynga, including claims for negligence, negligence per se, unjust enrichment, declaratory relief, breach of confidence, breach of contract and implied contract, violations of California's Unfair Competition Law ("UCL", CGL 17200, et seq.), and state-specific violations of Missouri's Merchandising Practices Act and Wisconsin's Deceptive Trade Practices Act. Plaintiffs seek damages, as well as declaratory and injunctive relief. On May 26, 2020, Zynga filed a motion to compel arbitration and arbitration-related discovery. On April 15, 2020, plaintiffs Joseph Martinez IV and Daniel Petro, residents of Colorado and Iowa, filed a third class action complaint in the Northern District of California (the Martinez complaint). Plaintiffs allege they are longtime Zynga players who were affected by the Data Incident. Similar to the Chaudhri and Johnson plaintiffs, the Martinez plaintiffs generally allege that Zynga failed to adequately store and protect or otherwise secure certain player information, including names, email addresses, and passwords (among other items); that Zynga used outdated and improper password encryption methods; that Zynga failed to adequately provide notice of the Data Incident; and that they have been harmed as a result of the Data Incident. Like the Johnson and Chaudhri plaintiffs, the Martinez plaintiffs assert claims for negligence, negligence per se, and unjust enrichment, as well as contractual claims, and claims for relief under multiple state consumer protection statutes. Additionally, the Martinez plaintiffs also assert misrepresentation and omission claims under California's false advertising law and the California Consumer Legal Remedies Act. Plaintiffs seek injunctive and monetary relief on behalf of a nationwide class. Zynga responded to the Martinez complaint by filing a motion to compel arbitration on June 19, 2020. On June 9, 2020 plaintiffs James Oeste and Marissa Oeste, both residents of Maryland, filed a fourth class action complaint in the Northern District of Maryland (the "Oeste complaint"). Plaintiffs allege they were Zynga players who were affected by the Data Incident. Similar to all the foregoing plaintiffs, the Oeste plaintiffs seek to represent a nationwide class and generally allege that Zynga failed to adequately or reasonably protect certain player information, including names, email addresses, and passwords (among other items); that Zynga used outdated or improper password hashing methods; that Zynga failed to adequately provide notice of the Data Incident; and that they have been harmed as a result of the Data Incident. The Oeste plaintiffs assert claims for contractual breach, negligence, negligence per se, invasion of privacy, and claims for relief under California consumer protection and unfair competition statutes. Zynga responded to the complaint on August 31, 2020, with a motion to transfer the action to the Northern District of California. On May 5, 2021, the court granted Zynga's motion to transfer, and the case was transferred to the Northern District of California. The California district court has consolidated Oeste proceedings in connection with the other already pending cases before the court. On August 13, 2020, plaintiff Christopher Rosiak filed a fifth class action in the Northern District of California (the |Rosiak complaint|). Plaintiff alleges similar and analogous claims to those in the Martinez (and others) actions pending in the Northern District, alleging that he suffered harm as a result of Zynga's data breach. Plaintiff Rosiak alleges multiple state law claims, including contract-based claims, negligence, and violation of California's unfair competition, false advertising, and consumer protection statutes. On January 6, 2021, the Northern California district court issued an order in three of the above actions—Chaudhri, Johnson, and Martinez—denying Zynga's motions to compel arbitration without prejudice, and granting an alternative request for preliminary arbitration-related discovery that Zynga had made in connection with its motions. Plaintiffs were ordered to provide Zynga with plaintiffs' identifying information. Following a status hearing before the court as to all actions pending before it, plaintiffs filed an amended and consolidated complaint in connection with the Chaudhri, Johnson, and Martinez complaints, as well as in connection with the Rosiak complaint. The amended and consolidated complaint was filed in the Northern District of California on March 12, 2021. In response to the amended and consolidated complaint, on April 21, 2021, the Company filed renewed motions to compel arbitration in connection with the claims alleged by three of the individual named plaintiffs in the Chaudhri, Johnson, and Martinez actions. On the same date, the Company also filed a motion to dismiss claims alleged by all remaining plaintiffs in those actions, and in the Rosiak action. Following oral argument held by the court on July 27, 2021, the court granted Zynga's motion to compel arbitration and granted the motion to dismiss with leave to amend. Plaintiffs' further amended complaint is due August 27, 2021. Zynga's response to the amended complaint is due September 20, 2021. Zynga Inc. is an American social game developer running social video game services and founded in April 2007 with headquarters in San Francisco, California, United States. The company primarily focuses on mobile and social networking platforms. Zynga states its mission as "connecting the world through games. ZYNGA INC: Owens Class Action Voluntarily Dismissed --------------------------------------------------- Zynga Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 6, 2021, for the quarterly period ended June 30, 2021, that all named plaintiffs in the class action suit initiated by Michael Owens filed a notice of voluntary dismissal, dismissing the complaint in its entirety, without prejudice. On February 26, 2021, a class action lawsuit was filed in the United States District Court for the Northern District of California by named plaintiff Michael Owens, who purchased in-game currency in connection with his use of certain Zynga social slots games. The Zynga social slots games at issue include: Hit it Rich! Slots, Black Diamond Casino, Wizard of Oz Slots, Willy Wonka Slots, Game of Thrones(TM) Slots Casino, Spin it Rich!, Princess Bride Slots and Riches of Olympus. Plaintiff alleges that Zynga has unlawfully developed, owns, and operates games that qualify as unlawful slot machines under California Penal Code section 330b; and that Zynga "developed, owned, operated, and controlled" such in violation of California Penal Code sections 330, et seq., the Illegal Gambling Business Act (18 U.S.C. Sections 1955), and the Unlawful Internet Gambling Enforcement Act of 2006 (31 U.S.C. Sections 5361-5367). Plaintiff also alleges that Zynga unlawfully designs and markets its social slots games in order to target individuals with addictive tendencies; and that Zynga implements game features that violate state consumer protection laws. Plaintiff seeks money damages, restitution, disgorgement and other remedies, as well as injunctive relief. Plaintiff filed an amended complaint on March 29, 2021, including claims by additional named plaintiffs Jennie Plumley, Jon Schweitzer, Charlie Finlay, and Melissa Irelan. On May 4, 2021, the Company filed a motion to compel arbitration in response to the amended complaint. On June 21, 2021, all named plaintiffs filed a notice of voluntary dismissal, dismissing the complaint in its entirety, without prejudice. Zynga Inc. is an American social game developer running social video game services and founded in April 2007 with headquarters in San Francisco, California, United States. The company primarily focuses on mobile and social networking platforms. Zynga states its mission as "connecting the world through games. [*] Class Action Developments During the Q2 of 2021 Discussed ------------------------------------------------------------- Gibson, Dunn & Crutcher LLP provided an update on class actions for the second quarter 2021. This update provides an overview of key class action developments during the second quarter of 2021. Part I covers TransUnion v. Ramirez, 141 S. Ct. 2190 (2021), an important decision from the Supreme Court about Article III standing and its application to damages class actions. Significantly, the Supreme Court for the first time held that all class members seeking to recover damages must have Article III standing. Part II reports on developments in a closely watched Ninth Circuit appeal that also concerns the application of Article III standing in putative class actions. I. The Supreme Court Issues Important Ruling on the Application of Article III Standing to Damages Class Actions in TransUnion v. Ramirez In the years since Spokeo, Inc. v. Robins, 578 U. S. 330 (2016), the courts of appeals have wrestled with applying Article III standing principles to putative class actions. On June 25, 2021, the Supreme Court revisited the issue of Article III standing for the first time since Spokeo. In TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), the Court reversed a judgment on the claims of more than 6,000 class members whose internal credit reports contained inaccuracies that were never published to any third parties. In so holding, the Court clarified an issue left ambiguous in Spokeo: whether the violation of a federal statute, standing alone, confers Article III standing. The Court held that it does not. If a plaintiff does not suffer a real harm and the risk of future harm never materializes, there is no concrete injury and thus no standing to assert a damages claim. And importantly, the Court held that "every class member" -- not just the named plaintiff -- is required to meet this standard in order to recover individual damages. As covered in a previous update, Ramirez concerned a jury verdict awarding $60 million in damages to a class of over 8,000 consumers. The plaintiff alleged that TransUnion violated the Fair Credit Reporting Act ("FCRA") by inaccurately labelling him and his fellow class members as potential terrorists, drug traffickers, and other threats to national security on their consumer credit reports. The Ninth Circuit noted that "each member of a class certified under Rule 23 must satisfy the bare minimum of Article III standing at the final judgment stage of a class action in order to recover monetary damages in federal court," but it found that each of the 8,185 class members had done so. 951 F.3d 1008, 1023 (9th Cir. 2020). Even though 75% of the class never had an inaccurate credit report disseminated to any third party, the Ninth Circuit ruled that each class member had standing because they were subjected to a real risk of harm to their privacy, reputational, and informational interests protected by the FCRA. Id. at 1027. The Supreme Court, in a 5-4 decision, reversed. The core of the Court's ruling was premised on the straightforward Article III principle: "No concrete harm, no standing." 141 S. Ct. at 2200. The Court explained that under Spokeo, each class member must have suffered a "concrete" harm bearing a "close relationship" to traditional harms -- like physical injury, monetary injury, or intangible injuries like damage to reputation -- to have standing. Id. And even though "Congress may create causes of action for plaintiffs to sue defendants who violate . . . legal prohibitions or obligations," "an injury in law is not an injury in fact." Id. at 2205. Thus, only those class members whose inaccurate credit reports were actually provided to third parties had Article III standing to pursue the FCRA claim. Id. at 2209-10. By contrast, the remaining 75% of class members, "whose credit reports were not provided to third-party businesses," did not have Article III standing because the "mere existence of inaccurate information" does not constitute a "concrete injury." Id. at 2209. The Court left it to the Ninth Circuit to "consider in the first instance whether class certification is appropriate in light of [the] conclusion about standing." Id. at 2214. Although the Court's decision clarifies the Article III standard, and confirms that all class members seeking damages must satisfy it, the decision still left unresolved the question "whether every class member must demonstrate standing before a court certifies a class," id. at 2208 n.4 (emphasis added), and whether the lead plaintiff's claims were typical of those of the class, id. at 2216 n.1. As a practical matter, it makes little sense for either party to defer this question until after class certification, because time and resources spent litigating a faulty class action benefits no one. At minimum, the issue of how Article III standing can be proven in a class trial should be part of the Rule 23 calculus. But we expect that in the coming months, the lower courts will grapple with these important issues as they seek to apply TransUnion. II. The Ninth Circuit Grants Rehearing En Banc in Olean v. Bumble Bee Foods As we discussed in our First-Quarter 2021 Update, the Ninth Circuit issued an important decision in April 2021 in Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 993 F.3d 774 (9th Cir. 2021), concerning the standards for establishing predominance in putative class actions under Rule 23(b)(3). In a 2-1 decision, the court held that even though plaintiffs may establish predominance using statistical evidence, district courts must still scrutinize the reliability of that evidence before certifying a class. Id. at 791. Additionally, the court stated that the inclusion of uninjured individuals in a class "must be de minimis," and suggested "that 5% to 6% constitutes the outer limits of a de minimis number." Id. at 792-93. Consistent with the Supreme Court's subsequent holding in TransUnion, the court also acknowledged that the presence of uninjured class members presented "serious standing implications under Article III," but did not reach the issue because class certification failed under Rule 23(b)(3). Id. at 792 n.7. On August 3, 2021, the Ninth Circuit vacated this split-panel decision and agreed to rehear the matter en banc. 5 F.4th 950 (9th Cir. 2021). Although the court's order did not specify the issues the court will consider, it will likely provide guidance on the interplay between Article III and Rule 23 in the wake of the Supreme Court's decision in TransUnion, and potentially address whether Rule 23(b)(3) requires a district court to find that no more than a "de minimis" number of class members are uninjured before certifying a class. The following Gibson Dunn lawyers contributed to this client update: Christopher Chorba, Kahn Scolnick, Bradley Hamburger, Lauren Blas, Jennafer Tryck, Wesley Sze, and Lauren Fischer. Gibson Dunn attorneys are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work in the firm's Class Actions or Appellate and Constitutional Law practice groups, or any of the following lawyers: Theodore J. Boutrous, Jr. - Los Angeles (+1 213-229-7000, tboutrous@gibsondunn.com) Christopher Chorba - Co-Chair, Class Actions Practice Group - Los Angeles (+1 213-229-7396, cchorba@gibsondunn.com) Theane Evangelis - Co-Chair, Litigation Practice Group, Los Angeles (+1 213-229-7726, tevangelis@gibsondunn.com) Kahn A. Scolnick - Co-Chair, Class Actions Practice Group - Los Angeles (+1 213-229-7656, kscolnick@gibsondunn.com) Bradley J. Hamburger - Los Angeles (+1 213-229-7658, bhamburger@gibsondunn.com) Lauren M. Blas - Los Angeles (+1 213-229-7503, lblas@gibsondunn.com) [GN] Asbestos Litigation ASBESTOS UPDATE: Ampco-Pittsburgh Has $170K Asbestos Reserve ------------------------------------------------------------ Ampco-Pittsburgh Corporation, at June 30, 2021, has reported a reserve of $170,776 for the total costs, including defense costs, for Asbestos Liability claims pending or projected to be asserted through 2052, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "In conjunction with developing the Asbestos Liability through 2052, the Corporation also developed an estimate of probable insurance recoveries for the Asbestos Liability. In developing the estimate, the Corporation considered Nathan's projection for settlement or indemnity costs for the Asbestos Liability and management's projection of associated defense costs (based on the current defense to indemnity cost ratio), as well as a number of additional factors. These additional factors included the Settlement Agreements in effect, policy exclusions, policy limits, policy provisions regarding coverage for defense costs, attachment points, prior impairment of policies and gaps in the coverage, policy exhaustions, insolvencies among certain of the insurance carriers, and the nature of the underlying claims for the Asbestos Liability asserted against the subsidiaries and the Corporation as reflected in the Corporation's asbestos claims database, as well as estimated erosion of insurance limits on account of claims against Howden arising out of the Products. In addition to consulting with the Corporation's outside legal counsel on these insurance matters, the Corporation consulted with a nationally recognized insurance consulting firm it retained to assist the Corporation with certain policy allocation matters that also are among the several factors considered by the Corporation when analyzing potential recoveries from relevant historical insurance for the Asbestos Liability. Based upon all of the factors considered by the Corporation, and considering the Corporation's analysis of publicly available information regarding the credit-worthiness of various insurers, the Corporation estimated the probable insurance recoveries for the Asbestos Liability and defense costs through 2052. "Defense costs are estimated at 80% of settlement costs. The Corporation's receivable at December 31, 2018, for insurance recoveries attributable to the claims for which the Corporation's Asbestos Liability reserve has been established, including the portion of incurred defense costs covered by the Settlement Agreements in effect through December 31, 2018, and the probable payments and reimbursements relating to the estimated indemnity and defense costs for pending and unasserted future Asbestos Liability claims, was $152,508 ($112,279 at June 30, 2021)." A full-text copy of the Form 10-Q is available at https://bit.ly/38c2Jjk ASBESTOS UPDATE: Avon Products Has 129 PI Cases Pending at June 30 ------------------------------------------------------------------ Avon Products, Inc. has been named a defendant in numerous personal injury lawsuits filed in U.S. courts, alleging that certain talc products the Company sold in the past were contaminated with asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "As of June 30, 2021, there were 129 individual cases pending against the Company. Many of these actions involve a number of co-defendants from a variety of different industries, including manufacturers of cosmetics and manufacturers of other products that, unlike the Company's products, were designed to contain asbestos. During the three months ended June 30, 2021, 28 new cases were filed and 8 cases were dismissed, settled or otherwise resolved. The value of the settlements was not material, either individually or in the aggregate, to the Company's results of operations for the three months ended June 30, 2021. Additional similar cases arising out of the use of the Company's talc products are reasonably anticipated. "We believe that the claims asserted against us in these cases are without merit. We are defending vigorously against these claims and will continue to do so. To date, the Company has not proceeded to trial in any case filed against it and there have been no findings of liability enforceable against the Company. However, nationwide trial results in similar cases filed against other manufacturers of cosmetic talc products have ranged from outright dismissals to very large jury awards of both compensatory and punitive damages. Given the inherent uncertainties of litigation, we cannot predict the outcome of all individual cases pending against the Company, and we are only able to make a specific estimate for a small number of individual cases that have advanced to the later stages of legal proceedings. For the remaining cases, we provide an estimate of exposure on an aggregated and ongoing basis, which takes into account the historical outcomes of all cases we have resolved to date. Any accruals currently recorded on the Company's balance sheet with respect to these cases are not material. However, any adverse outcomes, either in an individual case or in the aggregate, could be material. Future costs to litigate these cases, which we expense as incurred, are not known but may be significant, though some costs will be covered by insurance." A full-text copy of the Form 10-Q is available at https://bit.ly/38j2gMd ASBESTOS UPDATE: Ballantyne Strong Still Defends PI Lawsuits ------------------------------------------------------------ Ballantyne Strong, Inc., and its subsidiaries are named as defendants in personal injury lawsuits based on alleged exposure to asbestos-containing materials, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "A majority of the cases involve product liability claims based principally on allegations of past distribution of -- commercial lighting products containing wiring that may have contained asbestos. Each case names dozens of corporate defendants in addition to the Company. In the Company's experience, a large percentage of these types of claims have never been substantiated and have been dismissed by the courts. The Company has not suffered any adverse verdict in a trial court proceeding related to asbestos claims and intends to continue to defend these lawsuits. When appropriate, the Company may settle certain claims. The Company does not expect the resolution of these cases to have a material adverse effect on the Company's financial condition, results of operations or cash flows." A full-text copy of the Form 10-Q is available at https://bit.ly/3yaM8ak ASBESTOS UPDATE: Burlington Northern Defends PI Claims ------------------------------------------------------ Burlington Northern Santa Fe, LLC (BNSF) is a party to asbestos claims by employees and non-employees who may have been exposed to asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. BNSF's personal injury liability includes the cost of claims for employee work-related injuries, third-party claims, and asbestos claims. BNSF records a liability for asserted and unasserted claims when the expected loss is both probable and reasonably estimable. Because of the uncertainty of the timing of future payments, the liability is undiscounted. Defense and processing costs, which are recorded on an as-reported basis, are not included in the recorded liability. Expense accruals and adjustments are classified as materials and other in the Consolidated Statements of Income. Personal injury claims by BNSF Railway employees are subject to the provisions of the Federal Employers' Liability Act (FELA) rather than state workers' compensation laws. Resolution of these cases under the FELA's fault-based system requires either a finding of fault by a jury or an out of court settlement. Third-party claims include claims by non-employees for compensatory damages and may, from time to time, include requests for punitive damages or treatment of the claim as a class action. BNSF estimates its personal injury liability claims and expense using standard actuarial methodologies based on the covered population, activity levels and trends in frequency, and the costs of covered injuries. The Company monitors actual experience against the forecasted number of claims to be received, the forecasted number of claims closing with payment, and expected claim payments and records adjustments as new events or changes in estimates develop. A full-text copy of the Form 10-Q is available at https://bit.ly/3sSThLl ASBESTOS UPDATE: CarParts.com's Subsidiaries Faces Damage Claims ---------------------------------------------------------------- CarParts.com, Inc.'s wholly-owned subsidiary, Automotive Specialty Accessories and Parts, Inc. and its wholly-owned subsidiary Whitney Automotive Group, Inc. ("WAG"), are named defendants in several lawsuits involving claims for damages caused by installation of brakes during the late 1960's and early 1970's that contained asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "WAG marketed certain brakes, but did not manufacture any brakes. WAG maintains liability insurance coverage to protect its and the Company's assets from losses arising from the litigation and coverage is provided on an occurrence rather than a claims made basis, and the Company is not expected to incur significant out-of-pocket costs in connection with this matter that would be material to its consolidated financial statements." A full-text copy of the Form 10-Q is available at https://bit.ly/2Wopw9e ASBESTOS UPDATE: CIRCOR Intl. Faces Product Liability Claims ------------------------------------------------------------ CIRCOR International, Inc., has reported that asbestos-related product liability claims continue to be filed against two of the its subsidiaries: Spence Engineering Company, Inc. ("Spence"), the stock of which the Company acquired in 1984; and CIRCOR Instrumentation Technologies, Inc. (f/k/a Hoke, Inc.) ("Hoke"), the stock of which it acquired in 1998, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Hoke subsidiary was divested in January 2020 through the sale of the I&S business. However, the Company has indemnified the buyer for asbestos-related claims that are made against Hoke. Due to the nature of the products supplied by these entities, the markets they serve and the Company's historical experience in resolving these claims, the Company does not expect that these asbestos-related claims will have a material adverse effect on the financial condition, results of operations or liquidity of the Company. During the second quarter of 2021 the Company was notified of a contract termination by one of its Industrial segment customers. The basis for this termination is under dispute and the ultimate outcome of this matter is uncertain. The Company has a net receivable in the amount of $4.6 million as of July 4, 2021 relating to this contract. Further, the Company has outstanding guarantees of its performance under the contract in the aggregate amount of $3.4 million. Should the negotiation or settlement process be unfavorable for the Company, the Company is exposed to risk of loss for some or all of the net receivable under the contract, performance guarantees and potential future claims should any be asserted. A full-text copy of the Form 10-Q is available at https://bit.ly/3gysWND ASBESTOS UPDATE: Goodyear Tire Has 38,500 Pending Claims at June 30 ------------------------------------------------------------------- The Goodyear Tire & Rubber Company, at June 30, 2021, has reported an approximately 38,500 asbestos claims pending against the Company, according to its Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Typically, these lawsuits have been brought against multiple defendants in state and federal courts. The plaintiffs are seeking unspecified actual and punitive damages and other relief. To date, we have disposed of approximately 154,900 claims by defending, obtaining the dismissal thereof, or entering into a settlement. The sum of our accrued asbestos-related liability and gross payments to date, including legal costs, by us and our insurers totaled approximately $568 million through June 30, 2021 and $563 million through December 31, 2020. A full-text copy of the Form 10-Q is available at https://bit.ly/3zdIuO1 ASBESTOS UPDATE: Graham Corp Faces Claims Alleging Personal Injury ------------------------------------------------------------------ Graham Corporation has been named as a defendant in lawsuits alleging personal injury from exposure to asbestos allegedly contained in, or accompanying, products made by the Company, according to its Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company is a co-defendant with numerous other defendants in these lawsuits and intends to vigorously defend itself against these claims. The claims in the Company's current lawsuits are similar to those made in previous asbestos-related suits that named the Company as a defendant, which either were dismissed when it was shown that the Company had not supplied products to the plaintiffs' places of work or were settled for immaterial amounts. The Company cannot provide any assurances that any pending or future matters will be resolved in the same manner as previous lawsuits. As of June 30, 2021, the Company was subject to the claims noted above, as well as other legal proceedings and potential claims that have arisen in the ordinary course of business. Although the outcome of the lawsuits, legal proceedings or potential claims to which the Company is, or may become, a party to cannot be determined and an estimate of the reasonably possible loss or range of loss cannot be made for the majority of the claims, management does not believe that the outcomes, either individually or in the aggregate, will have a material adverse effect on the Company's results of operations, financial position or cash flows. A full-text copy of the Form 10-Q is available at https://bit.ly/3knbXPu ASBESTOS UPDATE: Intricon Corp and Others Faces Exposure Claims --------------------------------------------------------------- Intricon Corporation is a defendant along with a number of other parties in lawsuits alleging that plaintiffs have or may have contracted asbestos-related diseases as a result of exposure to asbestos products or equipment containing asbestos sold by one or more named defendants, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "These lawsuits relate to the discontinued heat technologies segment which was sold in March 2005. Due to the non-informative nature of the complaints, the Company does not know whether any of the complaints state valid claims against the Company. Certain insurance carriers have informed the Company that the primary policies for the period August 1, 1970-1978 have been exhausted and that the carriers will no longer provide defense and insurance coverage under those policies. However, the Company has other primary and excess insurance policies that the Company believes afford coverage for later years. Some of these other primary insurers have accepted defense and insurance coverage for these suits, and some of them have either ignored the Company's tender of defense of these cases, or have denied coverage, or have accepted the tenders but asserted a reservation of rights and/or advised the Company that they need to investigate further. Because settlement payments are applied to all years a litigant was deemed to have been exposed to asbestos, the Company believes that it will have funds available for defense and insurance coverage under the non-exhausted primary and excess insurance policies. However, unlike the older policies, the more recent policies have deductible amounts for defense and settlements costs that the Company will be required to pay; accordingly, the Company expects that its litigation costs will increase in the future. Further, many of the policies covering later years (approximately 1984 and thereafter) have exclusions for any asbestos products or operations, and thus do not provide insurance coverage for asbestos-related lawsuits. The Company does not believe that the asserted exhaustion of some of the primary insurance coverage for the 1970-1978 period will have a material adverse effect on its financial condition, liquidity, or results of operations. Management believes that the number of insurance carriers involved in the defense of the suits, and the significant number of policy years and policy limits under which these insurance carriers are insuring the Company, make the ultimate disposition of these lawsuits not material to the Company's consolidated financial position or results of operations. As of June 30, 2021, we recorded $129 and $711 within other accrued liabilities and other long-term liabilities, respectively, within our condensed consolidated balance sheet for estimated future claims. An insurance receivable of $129 and $711 was recorded within other current assets and other assets, net, respectively, within our condensed consolidated balance sheet as of June 30, 2021 for estimated insurance recoveries." A full-text copy of the Form 10-Q is available at https://bit.ly/3gyynfz ASBESTOS UPDATE: ITT Inc. Transfers Pending and Future Claims ------------------------------------------------------------- ITT Inc., on June 30, 2021, has entered into a Membership Interest Purchase Agreement under which the Company transferred 100% of the equity interests of its former subsidiary, InTelCo to Sapphire TopCo, Inc. (buyer), effective as of July 1, 2021, along with a cash contribution from the ITT of $398, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "As InTelCo was the obligor for the Company's asbestos-related liabilities and policyholder of the related insurance assets through its subsidiaries ITT LLC and Goulds Pumps LLC, the rights and obligations related to these items transferred upon the sale. In addition, pursuant to the Purchase Agreement, the Buyer and InTelCo have indemnified the Company and its affiliates for asbestos-related liabilities and other product liabilities and the Company has indemnified InTelCo and its affiliates for all other historical liabilities of InTelCo. This indemnification is not subject to any cap or time limitation. In connection with the sale, the Company and its Board of Directors received a solvency opinion from an independent advisory firm that InTelCo was solvent and adequately capitalized after giving effect to the transaction. "Following the completion of the transfer, the Company no longer has any obligation with respect to pending and future asbestos claims. As such, InTelco has been deconsolidated from the financial results of the Company as we no longer maintain control of the entity. Therefore, all associated assets and liabilities are no longer reported on the consolidated balance sheet. The transaction resulted in a pre-tax gain of $88.8. Additionally, the Company recorded tax expense as a result of the reversal of previously recorded deferred tax assets of $116.9, resulting in an after-tax loss of $28.1 recorded in the second quarter of 2021." A full-text copy of the Form 10-Q is available at https://bit.ly/3yo1GaZ ASBESTOS UPDATE: Manitowoc Co. Has $59.5MM Reserves at June 30 -------------------------------------------------------------- The Manitowoc Company, Inc., as of June 30, 2021 and December 31, 2020, had reserves of $59.5 million and $63.2 million, respectively, for warranty claims included in product warranties and other non-current liabilities, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Certain of these warranty and other related claims involve legal matters in dispute that ultimately are resolved by negotiation, arbitration, or litigation. "The Company is involved in numerous lawsuits involving asbestos-related claims in which the Company is one of numerous defendants. After taking into consideration legal counsel's evaluation of such actions, the current political environment with respect to asbestos related claims, and the liabilities accrued with respect to such matters, in the opinion of management, ultimate resolution is not expected to have a material adverse effect on the financial condition, results of operations, or cash flows of the Company. "It is reasonably possible that the estimates for warranty costs, product liability, environmental remediation, asbestos-related claims and other various legal matters may change based upon new information that may arise or matters that are beyond the scope of the Company's historical experience. Presently, there are no reliable methods to estimate the amount of any such potential changes." A full-text copy of the Form 10-Q is available at https://bit.ly/3zeOFlb ASBESTOS UPDATE: MetLife Has 1,304 New Personal Injury Claims ------------------------------------------------------------- MetLife, Inc., for the six months ended June 30, 2021 and 2020, has received approximately 1,304 and 1,121 new asbestos-related claims, respectively, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Claims asserted against MLIC have included negligence, intentional tort and conspiracy concerning the health risks associated with asbestos. MLIC's defenses (beyond denial of certain factual allegations) include that: (i) MLIC owed no duty to the plaintiffs— it had no special relationship with the plaintiffs and did not manufacture, produce, distribute or sell the asbestos products that allegedly injured plaintiffs, (ii) plaintiffs did not rely on any actions of MLIC, (iii) MLIC's conduct was not the cause of the plaintiffs' injuries, (iv) plaintiffs' exposure occurred after the dangers of asbestos were known, and (v) the applicable time with respect to filing suit has expired. During the course of the litigation, certain trial courts have granted motions dismissing claims against MLIC, while other trial courts have denied MLIC's motions. There can be no assurance that MLIC will receive favorable decisions on motions in the future. While most cases brought to date have settled, MLIC intends to continue to defend aggressively against claims based on asbestos exposure, including defending claims at trials. "These suits principally allege that the plaintiff or plaintiffs suffered personal injury resulting from exposure to asbestos and seek both actual and punitive damages. MLIC has never engaged in the business of manufacturing, producing, distributing or selling asbestos or asbestos-containing products nor has MLIC issued liability or workers' compensation insurance to companies in the business of manufacturing, producing, distributing or selling asbestos or asbestos-containing products. The lawsuits principally have focused on allegations with respect to certain research, publication and other activities of one or more of MLIC's employees during the period from the 1920's through approximately the 1950's and allege that MLIC learned or should have learned of certain health risks posed by asbestos and, among other things, improperly publicized or failed to disclose those health risks. MLIC believes that it should not have legal liability in these cases. The outcome of most asbestos litigation matters, however, is uncertain and can be impacted by numerous variables, including differences in legal rulings in various jurisdictions, the nature of the alleged injury and factors unrelated to the ultimate legal merit of the claims asserted against MLIC. MLIC employs a number of resolution strategies to manage its asbestos loss exposure, including seeking resolution of pending litigation by judicial rulings and settling individual or groups of claims or lawsuits under appropriate circumstances." A full-text copy of the Form 10-Q is available at https://bit.ly/3gu9OQV ASBESTOS UPDATE: Natura &Co' s Subsidiary Faces Numerous PI Lawsuit ------------------------------------------------------------------- Natura &Co Holding S.A.'s subsidiary, Avon International has been named a defendant in numerous personal injury lawsuits filed in U.S. courts, alleging that certain talc products the Avon sold in the past were contaminated with asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Many of these actions involve a number of co-defendants from a variety of different industries, including manufacturers of cosmetics and manufacturers of other products that, unlike the subsidiary Avon's products, were designed to contain asbestos. On June 30, 2021, there were 129 individual cases pending against the subsidiary Avon. During the six months ended June 30, 2021, 28 new cases were filed, and 8 cases were dismissed, settled, or otherwise resolved. The value of the settlements was not material, either individually or in the aggregate, to the subsidiary Avon's results of operations for the six-month period ended on June 30, 2021. Additional similar cases arising out of the use of the subsidiary Avon's talc products are reasonably anticipated." A full-text copy of the Form 6-K is available at https://bit.ly/3yhEsDg ASBESTOS UPDATE: Park-Ohio Defends 125 Personal Injury Cases ------------------------------------------------------------ Park-Ohio Industries, Inc. is a co-defendant in approximately 125 cases asserting claims on behalf of approximately 229 plaintiffs alleging personal injury as a result of exposure to asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "These asbestos cases generally relate to production and sale of asbestos-containing products and allege various theories of liability, including negligence, gross negligence and strict liability, and seek compensatory and, in some cases, punitive damages. "In every asbestos case in which we are named as a party, the complaints are filed against multiple named defendants. In substantially all of the asbestos cases, the plaintiffs either claim damages in excess of a specified amount, typically a minimum amount sufficient to establish jurisdiction of the court in which the case was filed (jurisdictional minimums generally range from $25,000 to $75,000), or do not specify the monetary damages sought. To the extent that any specific amount of damages is sought, the amount applies to claims against all named defendants. "There are four asbestos cases, involving 20 plaintiffs, that plead specified damages against named defendants. In each of the four cases, the plaintiff is seeking compensatory and punitive damages based on a variety of potentially alternative causes of action. In two cases, the plaintiff has alleged three counts at $3.0 million compensatory and punitive damages each; one count at $3.0 million compensatory and $1.0 million punitive damages; one count at $1.0 million. In the third case, the plaintiff has alleged compensatory and punitive damages, each in the amount of $20.0 million, for three separate causes of action, and $5.0 million compensatory damages for the fifth cause of action. In the fourth case, the plaintiff has alleged compensatory and punitive damages, each in the amount of $10.0 million, for ten separate causes of action. "Historically, we have been dismissed from asbestos cases on the basis that the plaintiff incorrectly sued one of our subsidiaries or because the plaintiff failed to identify any asbestos-containing product manufactured or sold by us or our subsidiaries. We intend to vigorously defend these asbestos cases, and believe we will continue to be successful in being dismissed from such cases. However, it is not possible to predict the ultimate outcome of asbestos-related lawsuits, claims and proceedings due to the unpredictable nature of personal injury litigation. Despite this uncertainty, and although our results of operations and cash flows for a particular period could be adversely affected by asbestos-related lawsuits, claims and proceedings, management believes that the ultimate resolution of these matters will not have a material adverse effect on our financial condition, liquidity or results of operations. Among the factors management considered in reaching this conclusion were: (a) our historical success in being dismissed from these types of lawsuits on the bases mentioned above; (b) many cases have been improperly filed against one of our subsidiaries; (c) in many cases the plaintiffs have been unable to establish any causal relationship to us or our products or premises; (d) in many cases, the plaintiffs have been unable to demonstrate that they have suffered any identifiable injury or compensable loss at all or that any injuries that they have incurred did in fact result from alleged exposure to asbestos; and (e) the complaints assert claims against multiple defendants and, in most cases, the damages alleged are not attributed to individual defendants. Additionally, we do not believe that the amounts claimed in any of the asbestos cases are meaningful indicators of our potential exposure because the amounts claimed typically bear no relation to the extent of the plaintiff's injury, if any." A full-text copy of the Form 10-Q is available at https://bit.ly/2WhkWJH ASBESTOS UPDATE: Pfizer Inc. Faces Personal Injury Lawsuits ----------------------------------------------------------- Pfizer Inc., American Optical and certain of its previously owned subsidiaries are defendants in numerous Lawsuits pending in various federal and state courts seeking damages for alleged personal injury from exposure to products allegedly containing asbestos and other allegedly hazardous materials sold by Pfizer and certain of its previously owned subsidiaries, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Between 1967 and 1982, Warner-Lambert owned American Optical Corporation (American Optical), which manufactured and sold respiratory protective devices and asbestos safety clothing. In connection with the sale of American Optical in 1982, Warner-Lambert agreed to indemnify the purchaser for certain liabilities, including certain asbestos-related and other claims. Warner-Lambert was acquired by Pfizer in 2000 and is a wholly owned subsidiary of Pfizer. Warner-Lambert is actively engaged in the defense of, and will continue to explore various means of resolving, these claims. "There also are a small number of lawsuits pending in various federal and state courts seeking damages for alleged exposure to asbestos in facilities owned or formerly owned by Pfizer or its subsidiaries." A full-text copy of the Form 10-Q is available at https://bit.ly/3yaRhPG ASBESTOS UPDATE: Resolute Forest Products Still Defends PI Claims ----------------------------------------------------------------- Resolute Forest Products Inc. is involved in a number of asbestos-related lawsuits filed primarily in U.S. state courts, including certain cases involving multiple defendants, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "These lawsuits principally allege direct or indirect personal injury or death resulting from exposure to asbestos-containing premises. While we dispute the plaintiffs' allegations and intend to vigorously defend these claims, the ultimate resolution of these matters cannot be determined at this time. These lawsuits frequently involve claims for unspecified compensatory and punitive damages, and we are unable to reasonably estimate a range of possible losses. However, unfavorable rulings, judgments or settlement terms could materially impact our Consolidated Financial Statements. Hearings for certain of these matters are scheduled to occur in the next twelve months." A full-text copy of the Form 10-Q is available at https://bit.ly/3z9p5xT ASBESTOS UPDATE: SPX Corp Paid $8.1 for Asbestos Claims ------------------------------------------------------- SPX Corporation, during the six months ended July 3, 2021 and June 27, 2020, has payments for asbestos-related claims, net of respective insurance recoveries, of $8.1 and $11.8, respectively, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "A significant increase in claims, costs and/or issues with existing insurance coverage (e.g., dispute with or insolvency of insurer(s)) could have a material adverse impact on our share of future payments related to these matters, and, as a result, have a material impact on our financial position, results of operations and cash flows. "Our asbestos-related claims are typical in certain of the industries in which we operate or pertain to legacy businesses we no longer operate. It is not unusual in these cases for fifty or more corporate entities to be named as defendants. We vigorously defend these claims, many of which are dismissed without payment, and the significant majority of costs related to these claims have historically been paid pursuant to our insurance arrangements." A full-text copy of the Form 10-Q is available at https://bit.ly/3kpNPMg ASBESTOS UPDATE: Vontier Corp Records $68.6MM Gross Liabilities --------------------------------------------------------------- Vontier Corporation has recorded gross liabilities associated with known and future expected asbestos claims of $68.6 million and $68.0 million as of July 2, 2021 and December 31, 2020, respectively, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Known and future expected asbestos claims of $17.0 million and $17.5 million are included in Accrued expenses and other current liabilities on the Consolidated Condensed Balance Sheets as of July 2, 2021 and December 31, 2020, respectively. "In connection with the recognition of liabilities for asbestos related matters, the Company records insurance recoveries that are deemed probable and estimable. In assessing the probability of insurance recovery, we make judgments concerning insurance coverage that we believe are reasonable and consistent with our historical dealings, our knowledge of any pertinent solvency issues surrounding insurers, and litigation and court rulings potentially impacting coverage. While the substantial majority of our insurance carriers are solvent, some of our individual carriers are insolvent, which has been considered in the analysis of probable recoveries. Projecting future events is subject to various uncertainties, including litigation and court rulings potentially impacting coverage, that could cause insurance recoveries on asbestos related liabilities to be higher or lower than those projected and recorded. Given the inherent uncertainty in making future projections, the Company reevaluates projections concerning the Company's probable insurance recoveries considering any changes to the projected liabilities, the Company's recovery experience or other relevant factors that may impact future insurance recoveries." A full-text copy of the Form 10-Q is available at https://bit.ly/2WcdQXr ASBESTOS UPDATE: WestRock Co Faces 1,500 Lawsuits as of June 30 --------------------------------------------------------------- WestRock Company has been named a defendant in asbestos-related personal injury litigation wherein there were approximately 1,500 such lawsuits, as of June 30, 2021, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "To date, the costs resulting from the litigation, including settlement costs, have not been significant. We believe that we have substantial insurance coverage, subject to applicable deductibles and policy limits, with respect to asbestos claims. We also have valid defenses to these asbestos-related personal injury claims and intend to continue to defend them vigorously. Should the volume of litigation grow substantially beyond our expectations, it is possible that we could incur significant costs resolving these cases. We do not expect the resolution of pending asbestos litigation and proceedings to have a material adverse effect on our results of operations, financial condition or cash flows. In any given period or periods, however, it is possible such proceedings or matters could have an adverse effect on our results of operations, financial condition or cash flows. At June 30, 2021, we had a $15.2 million estimated liability for these matters." 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