/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210903.mbx C L A S S A C T I O N R E P O R T E R Friday, September 3, 2021, Vol. 23, No. 171 Headlines A ABILITY ADVOCATE: Lebron Sues Over Failure to Pay Paralegals' OT ADORE ME: Hill Files Suit in Fla. Cir. Ct. ADT LLC: Fifth Circuit Reverses Remand Order in Madison Class Suit AHDORNED BY TRACEY: Calcano Files ADA Suit in S.D. New York AMAZON.COM: Cooper Suit Transferred to N.D. Illinois AMERICA'S LIFT: Chapman Files TCPA Suit in S.D. Georgia AQUAMARINE POOLS: Porcayo Sues Over Failure to Pay Overtime Wages ARIZE FEDERAL: Faces Williams Suit in Pennsylvania Common Pleas Ct. ARIZONA: Shinn, Pratt Seek 9th Cir. Review in Parsons Suit AT&T MOBILITY: $12M Class Settlement in Roberts Suit Has Final OK ATHIRA PHARMA: Stipulation on Service Waivers in Wang Suit Entered CAI INTERNATIONAL: Coffman Suit Seeks to Enjoin Stockholder Vote CANAAN 168: Gao Seeks Minimum & Overtime Wages Under FLSA & NYLL CAR CREDIT: Confirmation of Arbitration Award in Pitts Suit Flipped CARIDAD SEA: Rodriguez Suit Seeks Unpaid Wages Under FLSA & NYLL CARMAX AUTO: Fails to Pay Minimum, OT Wages Under Labor Code CHOICE HOTELS: Faces Sbarbaro Suit Over Unpaid Overtime Wages CLAYTON AND MYRICK: Summary Judgment Bid in Albright Suit Denied CLICKTALE INC: Court Tosses Amended Yale Complaint With Prejudice CORECIVIC OF TENNESSEE: Rios Sues Over Unpaid Overtime Wages CYPRESS HEALTHCARE: Faces Bizzie Employment in Calif. State Court EDUCATIONAL CREDIT: S.D. California Dismisses Mahboob Class Suit ELANCO ANIMAL: Gjelland Suit Transferred to N.D. Illinois ELANCO ANIMAL: Walsh Suit Transferred to N.D. Illinois EXTREME CUSTOMS: Fails to Properly Pay OT, Quinones Suit Claims FARHAZ SIRAJUDDIN: Aslam Sues Over Failure to Pay Overtime Wages FED INC: Calcano Files ADA Suit in S.D. New York FEIN SUCH KAHN: Faces Vaughan Suit Over Deceptive Collection Letter FIRST NATIONAL: Faces Disla FDCPA Suit in New Jersey Fed. Ct. FONTANA & FONTANA: Class Settlement in Bardales Suit Wins Final OK FOOD UNIVERSE: Class Suit Seeks Minimum Wage, OT Under FLSA, NYLL FORTESSA TABLEWARE: Calcano Files ADA Suit in S.D. New York FREEPORT ASSESSOR: Hayde Files Suit in N.Y. Sup. Ct. GENERAL MOTORS: Faces Endress Suit Over Defective SDM System GEO GROUP: New Mexico Court Dismisses Power's Civil Rights Suit GOHEALTH LLC: Baumann Sues Over Unsolicited Phone Calls HAWAI'I: Faces Pelekai Civil Rights Suit in Federal Court INSTITUTO ESPANOL: Faces Ward Class Suit Over Mislabeled Products INVESTMENT RETRIEVERS: Robinson-Morris Files FDCPA Suit in D. Ariz. IYS ENTERPRISES: Calcano Files ADA Suit in S.D. New York KONINKLIJKE PHILIPS: Kolodin Files Suit in N.D. Georgia KONINKLIJKE PHILIPS: Norman Files Suit in S.D. Georgia LGBT NETWORK: Acon Seeks OT Pay for Youth Services Coordinators LYFT INC: Court Denies Bid for Judgment on Pleadings in Malig Suit MAGM ENTERPRISES: Fails to Pay Overtime Wages, O'Neill Claims MARCUS LEMONIS: Faces Sirota FTSA Suit Over Telephonic Sales Calls MASSACHUSETTS: Class of Prisoners Certified in Briggs v. Mass. DOC NATIONSTAR MORTGAGE: Rakestraw Appeals Judgment in RESPA Suit NATIONSTAR MORTGAGE: Yost Suit Removed to N.D. West Virginia NCAA: Weldon Suit Transferred to N.D. Illinois NEVADA: Court Denies Bid to Certify Class in Prentice Suit v. NDOC NORTHERN MICHIGAN: Simmons Files Appeal in Michigan Ct. of Appeals NORTHERN NATURAL GAS: De Leon FLSA Suit Transferred to W.D. Texas NURTURE INC: Faces Spencer Product Liability Suit in S.D.N.Y. NUTMEG STATE: Archibald Sues Over Wrongful Withdrawal of Funds PERRIGO CO: Bid to Reconsider Judgment in Securities Suit Denied PIZZA PIE PROPERTIES: Foote Seeks Unpaid Wages for Delivery Drivers POLARIS INDUSTRIES: Denial of Class Cert. in Johannessohn Upheld PORTFOLIO RECOVERY: Sites Suit Parties Must File Settlement Brief PREFERRED GROUP: C.D. California Dismisses Valdes Class Suit RAGNAR & ROLLO: Underpays Cleaners, Scott Suit Alleges SADDLE RANCH: Faces Alonzo ADA Suit in Central Dist. of California SANTA MONICA, CA: Bid to Vacate Judgment Against Columbia Denied SHOPIFY INC: Collects Private Info From Online Payments, Suit Says SOCIAL FINANCE: Can Partly Compel Arbitration in Juarez Class Suit UNITED STATES: Court Partly Stays Proceedings in Braswell Suit US TOBACCO: Bid to Name Lewis Class Reps as Special Committee Nixed WINDERMERE REAL: Wash. App. Flips Denial of Atty. Fees in Jones YOUNG LIVING: Penhall Has Leave to Amend Suit to Add Two Plaintiffs Asbestos Litigation ASBESTOS UPDATE: Metropolitan Life Faces 1,304 New PI Claims ASBESTOS UPDATE: Scotts Miracle-Gro Faces Claims Alleging Injuries ********* A ABILITY ADVOCATE: Lebron Sues Over Failure to Pay Paralegals' OT ------------------------------------------------------------------ The case, JACQUELYNN LEBRON, on behalf of herself and others similarly situated, Plaintiff v. A ABILITY ADVOCATE-PAUL K. SCHRIER, PLLC, d/b/a SCHRIER LAW GROUP, A ABILITY ADVOCATE – PAUL K. SCHRIER P.A. d/b/a SCHRIER LAW GROUP, and PAUL K. SCHRIER, individually, Defendants, Case No. 1:21-cv-23078 (S.D. Fla., August 25, 2021) arises from the Defendants' alleged violations of the Fair Labor Standards Act. The Plaintiff has worked for the Defendants as a paralegal, along with other paralegals, within 3 years between approximately August and the present. The Plaintiff asserts that despite regularly working more than 40 hours per week throughout their employment with the Defendants, he and other similarly situated paralegals were deprived of their lawfully earned overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek. Instead, they were only paid a flat salary rate without overtime premium for each and every hour worked in excess of 40 hours per week, the Plaintiff says. The Corporate Defendants operate as a law firm owned by Paul K. Schrider. [BN] The Plaintiff is represented by: Keith M. Stern, Esq. LAW OFFICE OF KEITH M. STERN, P.A. 80 S.W. 8th St., Suite 2000 Miami, FL 33130 Tel: (305) 901-1379 Fax: (561) 288-9031 E-mail: employlaw@keithstern.com ADORE ME: Hill Files Suit in Fla. Cir. Ct. ------------------------------------------ A class action lawsuit has been filed against ADORE ME INC. The case is styled as Adam Hill, individually and on behalf of all others similarly situated v. ADORE ME INC., Case No. 2021-31097-CICI (Fla. Cir. Ct., Volusia Cty., Aug. 19, 2021). The case type is stated as "OTHER CIVIL - CIRCUIT." Adore Me -- https://www.adoreme.com/ -- is a women's underwear company based in New York City.[BN] The Plaintiff is represented by: Ignacio Hiraldo IJH LAW 1200 Brickell Ave Suite 1950 Miami, FL 33131 Phone: (786) 496-4469 Email: ijhiraldo@ijhlaw.com ADT LLC: Fifth Circuit Reverses Remand Order in Madison Class Suit ------------------------------------------------------------------ In the case, TAYLOR MADISON; ANGIE DICKSON, Plaintiffs-Respondents v. ADT, L.L.C., Defendant-Petitioner, TAYLOR MADISON; ANGIE DICKSON, Plaintiffs-Appellees v. ADT, L.L.C., Defendant-Appellant, Case No. 21-90028, Consolidated With No. 21-10837 (5th Cir.), the U.S. Court of Appeals for the Fifth Circuit grants ADT permission to appeal and reverses the district court's remand order. Telesforo Aviles was an ADT employee who installed ADT's home-security surveillance systems and used his access privileges to spy on customers in their homes. Taylor Madison and Angie Dickson, now also representing a class of Plaintiffs, sued Aviles in state court seeking millions in damages. ADT, which is being sued directly by other plaintiffs in both Texas and Florida for the breach of privacy, intervened in the suit and removed to the Northern District of Texas pursuant to the Class Action Fairness Act ("CAFA"). The Plaintiffs moved to remand the suit to state court, and the district court granted the motion, citing the "home state" exception to CAFA. ADT sought the appeal pursuant to 28 U.S.C. Section 1453(c), and the Plaintiffs oppose. The Fifth Circuit reviews de novo the district court's order to remand to state court a suit removed pursuant to CAFA. The party objecting to CAFA jurisdiction must prove that a CAFA exception divests the federal court of the ability to retain a class action. Aviles, who was sued by the Plaintiffs, is a "primary Defendant," of course. The issue in the case is whether ADT, a non-citizen of Texas, is also a "primary defendant" under CAFA. If ADT is not a primary defendant, the district court was right to remand to the state court, but if ADT is a primary defendant, the district court was required to retain jurisdiction. The Fifth Circuit has only addressed this question with minimal reasoning, and there is scant discussion across its sister circuits. The leading case that examines the meaning of primary defendant is Vodenichar v. Halcón Energy Props, Inc., 733 F.3d 497 (3rd Cir. 2013). In that case, the Third Circuit described two chief approaches district courts have used to define primary defendant. The first attempts to "capture those defendants who are directly liable to the proposed class, as opposed to being vicariously or secondarily liable based upon theories of contribution or indemnification." This approach focuses "on the defendants who plaintiffs alleged are the real wrongdoers as opposed to those defendants who may have to pay because of the actions of others." The second looks "to identify the defendants expected to sustain the greatest loss if liability were found and whether such defendants have substantial exposure to significant portions of the proposed class." The Vodenichar panel adopted a blend of these two approaches, holding that courts "should assume liability will be found and determine whether the defendant is the `real target' of the plaintiffs' accusations." This includes "determining if the plaintiffs seek to hold the defendant responsible for its own actions, as opposed to seeking to have it pay for the actions of others," and also requires the court to consider whether, "given the claims asserted against the defendant, it has potential exposure to a significant portion of the class and would sustain a substantial loss as compared to other defendants if found liable." In that case, the circuit court held that three defendants were primary defendants: two had been non-diverse leasing agents of the plaintiff class, while the third was an oil and gas company, a diverse defendant, that allegedly reneged on lease agreements. Accordingly, the court rejected remand based on the home state exception. The Fifth Circuit's sparse analysis is similar to that in Vodenichar. It says there is much to commend the Vodenichar emphasis on the "real target" of the litigation. Whether ADT is vicariously or secondarily liable is a relevant factor, certainly, but it does not necessarily control a court's determination, or the analysis would often be at odds with the Supreme Court's admonition "against adopting rules in the CAFA context that would 'exalt form over substance.'" Madison and Dickson claim to represent a class of plaintiffs seeking millions in recovery for the invasion of their privacy, although, as of yet, they have asserted claims against only the offending employee (who is imprisoned). But the thrust of the suit is to gain access to ADT's deep pockets, and ADT, having properly intervened, must be considered a primary defendant under CAFA. Based on the foregoing, the Fifth Circuit grants permission to appeal. Further, because the district court erred in remanding, its order is reversed. A full-text copy of the Court's Aug. 24, 2021 Order is available at https://tinyurl.com/r5p5vk7n from Leagle.com. AHDORNED BY TRACEY: Calcano Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Ahdorned By Tracey Lane Novick, LLC. The case is styled as Evelina Calcano, on behalf of herself and all other persons similarly situated v. Ahdorned By Tracey Lane Novick, LLC, Case No. 1:21-cv-07333 (S.D.N.Y., Aug. 31, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ahdorned By Tracey Lane Novick -- https://www.ahdorned.com/ -- is a wholesale women's handbag company based in NY.[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 AMAZON.COM: Cooper Suit Transferred to N.D. Illinois ---------------------------------------------------- The case styled as Carol Cooper, individually and on behalf of all others similarly situated v. Amazon.com Inc., a Delaware corporation; Amazon.com Services, LLC, a Delaware limited liability company; Case No. 2:21-cv-00915, was transferred from the U.S. District Court for the Western District of Washington to the U.S. District Court for the Northern District of Illinois on August 31, 2021. The District Court Clerk assigned Case No. 1:21-cv-04633 to the proceeding. The nature of suit is stated as Other P.I. for Personal Injury. Amazon.com, Inc. -- https://www.amazon.com/ -- is an American multinational conglomerate which focuses on e-commerce, cloud computing, digital streaming, and artificial intelligence.[BN] The Plaintiff is represented by: Cecily Jordan, Esq. TOUSLEY BRAIN STEPHENS 1200 Fifth Ave., Ste. 1700 Seattle, WA 98101 Phone: (206) 682-5600 Email: cjordan@tousley.com - and - Edward D. Robertson, III, Esq. BARTIMUS, FRICKLETON, ROBETRSON & GORNY-LEAWOOD 11150 Overbrook Drive, Suite 250 Leawood, KS 66211 Phone: (913) 266-2300 Email: krobertson@bflawfirm.com - and - James P. Frickleton, Esq. BARTIMUS, FRICKLETON LAW FIRM 11150 Overbrook Road, Suite 200 Leawood, KS 66211 Phone: (913) 266-2300 - and - Kevin P. Green, Esq. Thomas P. Rosenfeld, Esq. GOLDENBERG HELLER & ANTOGNOLI, PC 2227 South State Route 157 Edwardsville, IL 62025 Phone: (618) 656-5150 Email: kevin@ghalaw.com tom@ghalaw.com - and - Jason T. Dennett, Esq. TOUSLEY BRAIN STEPHENS PLLC 1700 7th Avenue, Suite 2200 Seattle, WA 98101 Phone: (206) 682-5600 Email: jdennett@tousley.com The Defendants are represented by: Jedediah Wakefield, Esq. Laurence F Pulgram, Esq. FENWICK & WEST LLP 555 California St., Ste. 1200 San Francisco, CA 94104 Phone: (415) 875-2300 Email: jwakefield@fenwick.com lpulgram@fenwick.com - and - Brian D Buckley, Esq. FENWICK & WEST (WA) 1191 Second Ave., 10th Floor Seattle, WA 98101 Phone: (206) 389-4529 Email: bbuckley@fenwick.com AMERICA'S LIFT: Chapman Files TCPA Suit in S.D. Georgia ------------------------------------------------------- A class action lawsuit has been filed against America's Lift Chairs, LLC. The case is styled as Crystal Chapman, on behalf of himself and others similarly situated v. America's Lift Chairs, LLC, Case No. 4:21-cv-00245-WTM-CLR (S.D. Ga., Aug. 31, 2021). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. America's Lift Chair -- https://www.americasliftchair.com/ -- provides lift chair recliners nationwide with free white glove delivery and affordable monthly payment options.[BN] The Plaintiff is represented by: Steven Howard Koval, Esq. THE KOVAL FIRM, LLC Building 15, Suite 120 3575 Piedmont Rd. Atlanta, GA 30305 Phone: (404) 513-6651 Fax: (404) 549-4654 Email: shkoval@aol.com AQUAMARINE POOLS: Porcayo Sues Over Failure to Pay Overtime Wages ----------------------------------------------------------------- HECTOR PORCAYO, individually and on behalf of all others similarly situated, Plaintiff v. AQUAMARINE POOLS OF HOUSTON, LLC, MARK NARAS and DONNA NARAS, Defendants, Case No. 4:21-cv-02762 (S.D. Tex., August 24, 2021) is a collective action complaint brought against the Defendants for their alleged violations of the Fair Labor Standards Act. The Plaintiff was employed by the Defendants from approximately July 2016 through August 2021. Although the Plaintiff and other similarly situated employees routinely worked in excess of 40 hours per workweek, the Defendant did not pay them overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek. Instead, they were paid straight hourly wage only for all hours worked, says the suit. The Plaintiff brings this complaint for himself and all other similarly situated current and former non-exempt employees to recover compensation, liquidated damages equal in an amount to the unpaid compensation, litigation costs and expenses, attorneys' fees, post-judgment and moratory interest at the highest rates allowed by law, and other relief as may be necessary and appropriate. Aquamarine Pools of Houston, LLC builds inground pools throughout the State of Texas, Oklahoma and Louisiana. Mark Naras is listed as the Director of Aquamarine Pools. Donna Naras is listed as the President of Aquamarine Pools. [BN] The Plaintiff is represented by: Clif Alexander, Esq. Austin w. Anderson, Esq. Lauren E. Braddy, Esq. Alan Clifton Gordon, Esq. Craig D. Henderson, Esq. Carter T. Hastings, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Tel: (361) 452-1279 Fax: (361) 452-1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com lauren@a2xlaw.com cgordon@a2xlaw.com craig@a2xlaw.com carter@a2xlaw.com ARIZE FEDERAL: Faces Williams Suit in Pennsylvania Common Pleas Ct. ------------------------------------------------------------------- A class action lawsuit has been filed against Arize Federal Credit Union, et al. The case is captioned as VIRGINIA WILLIAMS, ALL OTHERS SIMILARLY SITUATED, v. ARIZE FEDERAL CREDIT UNION, SPE FEDERAL CREDIT UNION, Case No. 21-1869 (Ohio Com. Pleas, Aug. 13, 2021). The Plaintiffs include David L. Kwass and Elizabeth A. Bailey. Arize offers federal and mortgage services.[BN] ARIZONA: Shinn, Pratt Seek 9th Cir. Review in Parsons Suit ----------------------------------------------------------- Defendants DAVID SHINN and RICHARD PRATT filed an appeal from a court ruling entered in the lawsuit Victor Antonio Parsons, et al. v. Charles Ryan, et al., Case No. 2:12-cv-00601-ROS, in the U.S. District Court for the District of Arizona, Phoenix. According to the complaint, Prisoner Plaintiffs and the Plaintiff Class are housed in Arizona Department of Corrections state prisons, and seek declaratory and injunctive relief against Charles Ryan and Michael Pratt, in their official capacities. Prisoner Plaintiffs and the Plaintiff Class are entirely dependent on Defendants for their basic health care. However, the system under which Defendants Ryan and Pratt provide medical, mental health, and dental care (collectively, "health care") to prisoners is grossly inadequate and subjects all prisoners to a substantial risk of serious harm, including unnecessary pain and suffering, preventable injury, amputation, disfigurement, and death, the suit says. The complaint alleges that despite warnings from their own employees, prisoners and their family members, and advocates about the risk of serious injury and death to prisoners, Defendants are deliberately indifferent to the substantial risk of pain and suffering to prisoners, including deaths, which occur due to Defendants' alleged failure to provide minimally adequate health care, in violation of the Eighth Amendment. Arizona prisoners also suffer serious harm and are subject to a substantial risk of serious harm as a result of Defendants holding prisoners in isolation in supermax Special Management Units in cruel and unusual conditions of confinement. Defendants continue to be deliberately indifferent to the substantial risk of pain and suffering, including deaths, which occur due to their systemic failure to provide minimally adequate conditions to prisoners in isolation, in violation of the Eighth Amendment, the suit contends. As previously reported, the parties, apparently in good faith, entered into a stipulation to settle the litigation in October 2014. That stipulation required the Defendants to "comply with the health care performance measures" the parties agreed upon. The stipulation did not contemplate perfect compliance with each performance measure but it did require that, as of two years after the stipulation's effective date, the Defendants would comply with every performance measure at least 85% of the time. The Defendants now seek a review of the Court's Orders holding that Defendants' pervasive material breaches of the Stipulation justify Rule 60(b)(6) relief; that the Court's approval of the Stipulation under Rule 23(e) is rescinded and the February 15, 2015 Order is vacated; that the Clerk of Court shall reopen the case; that the parties must confer and submit a proposed schedule for discovery and preparation for trial, which must result in both sides being ready for trial no later than November 1, 2021; that Defendants must provide constitutionally adequate health care in the interim; that Motions to Seal are granted; that a Motion to Withdraw is granted; and a Motion to Intervene is denied. The appellate case is captioned as Shawn Jensen, et al. v. David Shinn, et al., Case No. 21-16397, in the United States Court of Appeals for the Ninth Circuit, filed on August 26, 2021. The briefing schedule in the Appellate Case states that: -- Appellants Richard Pratt and David Shinn, Director Mediation Questionnaire was due September 2, 2021; -- Transcript shall be ordered by September 28, 2021; -- Transcript is due on October 26, 2021; -- Appellants Richard Pratt and David Shinn, Director opening brief is due on November 29, 2021; -- Appellees Arizona Center For Disability Law, Maryanne Chisholm, Robert Carrasco Gamez Jr., Joseph Hefner, Shawn Jensen, Desiree Licci, Joshua Polson, Sonia Rodriguez, Jeremy Smith, Stephen Swartz, Jackie Thomas, Christina Verduzco and Charlotte Wells answering brief is due on December 29, 2021; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Defendants-Appellants DAVID SHINN, Director; and RICHARD PRATT, Interim Division Director, Division of Health Services, Arizona Department of Corrections, in their official capacities, are represented by: Nicholas D. Acedo, Esq. Rachel Love, Esq. Daniel Patrick Struck, Esq. STRUCK LOVE BOJANOWSKI & ACEDO PLC 3100 W. Ray Road, Suite 300 Chandler, AZ 85226 Telephone: (480) 420-1603 E-mail: rlove@swlfirm.com dstruck@swlfirm.com Plaintiffs-Appellees SHAWN JENSEN, STEPHEN SWARTZ, SONIA RODRIGUEZ, CHRISTINA VERDUZCO, JACKIE THOMAS, JEREMY SMITH, ROBERT CARRASCO GAMEZ, Jr., MARYANNE CHISHOLM, DESIREE LICCI, JOSEPH HEFNER, JOSHUA POLSON, ARIZONA CENTER FOR DISABILITY LAW, and CHARLOTTE WELLS, on behalf of herself and all others similarly situated, are represented by: Daniel Clayton Barr, Esq. Amelia M. Gerlicher, Esq. John H. Gray, Esq. PERKINS COIE 2901 N Central Avenue, Suite 2000 Phoenix, AZ 85012-2788 Telephone: (602) 351-8085 E-mail: dbarr@perkinscoie.com agerlicher@perkinscoie.com jhgray@perkinscoie.com - and - Kathleen Erin Brody, Esq. MITCHELL STEIN CAREY CHAPMAN, PC One Renaissance Square 2 North Central Avenue, Suite 1450 Phoenix, AZ 85004 Telephone: (602) 388-8958 - and - David Cyrus Fathi, Esq. Jennifer Wedekind, Esq. ACLU-AMERICAN CIVIL LIBERTIES UNION 915 15th St., NW Washington, DC 20005 Telephone: (202) 393-4930 E-mail: dfathi@npp-aclu.org - and - Amy Fettig, Esq. Corene Thaedra Kendrick, Esq. NATIONAL PRISON PROJECT-ACLU 915 15th Street, NW Washington, DC 20005 Telephone: (202) 548-6608 E-mail: afettig@npp-aclu.org - and - Alison Hardy, Esq. Rita Katherine Lomio, Esq. Sara Norman, Esq. Donald Specter, Esq. PRISON LAW OFFICE 1917 Fifth Street Berkeley, CA 94710-1916 Telephone: (510) 280-2621 E-mail: ahardy@prisonlaw.com snorman@prisonlaw.com dspecter@prisonlaw.com - and - Maya Abela, Esq. Rose Ann Daly-Rooney, Esq. Jose de Jesus Valdez Rico, Esq. ARIZONA CENTER FOR DISABILITY LAW 177 North Church Avenue, Suite 800 Tucson, AZ 85701 Telephone: (520) 327-9547 E-mail: jrico@azdisabilitylaw.org AT&T MOBILITY: $12M Class Settlement in Roberts Suit Has Final OK ----------------------------------------------------------------- In the case, MARCUS A. ROBERTS, et al., Plaintiffs v. AT&T MOBILITY LLC, Defendant, Case No. 15-cv-03418-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California grants: (i) the motion for final approval of the Amended Class Settlement Agreement, dated March 31, 2021; and (ii) the Settlement Class Counsel's motion for an award of attorneys' fees, costs, and service awards. The matter came before the Court for hearing on Aug. 19, 2021, pursuant to the Court's Preliminary Approval Order dated March 31, 2021, and on the motion for final approval of the Amended Class Settlement Agreement, dated March 31, 2021, entered into by the Parties, as well as the Settlement Class Counsel's motion for an award of attorneys' fees, costs, and service awards. The "Settlement Class" for purposes of the Final Order and Judgment means: All consumers residing in California (based on the accountholder's last known billing address) who purchased an unlimited data plan from AT&T Mobility LLC and who, on or before March 31, 2021, exceeded AT&T's applicable data usage threshold for any user on the account for one or more monthly billing cycles such that the user would have been eligible for data usage slowing or deprioritization by AT&T in those billing cycles under AT&T's network management policies." Judge Chen finds that all persons who fall within the definition of the Settlement Class have been adequately provided with an opportunity to exclude themselves from the Settlement Class by submitting a request for exclusion in conformance with the terms of the Settlement Agreement and the Court's Preliminary Approval Order. The Judge reaffirms that (i) the Action is properly maintained as a class action, for settlement purposes only, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3); (ii) the COurt's appointment of Plaintiffs Marcus Roberts, Kenneth Chewey, and Ashley Chewey as the Settlement Class Representatives to represent the Settlement Class and of the Settlement Class Counsel to represent the Settlement Class. Judge Chen finds that the Settlement Agreement warrants final approval pursuant to Fed. R. Civ. P. 23(e)(2) because, the Court finds, the Settlement Agreement is fair, reasonable, and adequate and is in the best interest of the Settlement Class, after weighing the relevant considerations. In view of the favorable response of the class (zero objections, only 35 opt outs, and a nearly 12% claims rate by Group B) following adequate class notice, and for the reasons stated at the hearing and in its preliminary approval of the settlement, Judge Chen grants the Motion, and the Settlement Agreement and its terms are approved as fair, reasonable, and adequate and in the best interest of the Settlement Class. The Parties and Settlement Administrator are directed to consummate and implement the Settlement Agreement in accordance with its terms, including distributing settlement payments to the Settlement Class Members and other disbursements from the Settlement Consideration as provided by the Settlement Agreement. The Action is dismissed with prejudice and without costs to any Party, other than as specified in the Settlement Agreement, the Final Order and Judgment, and any order(s) by the Court regarding the Settlement Class Counsel's motion for attorneys' fees, costs, and service awards. The Final Judgment and Order is the final, appealable judgment in the Action as to all Released Claims. Without affecting the finality of this Final Order and Judgment in any way, the Court retains jurisdiction over (a) implementation of the Settlement Agreement and the terms of the Settlement Agreement; (b) Settlement Class Counsel's motion for attorneys' fees, costs, and service awards; (c) distribution of the settlement consideration, Settlement Class Counsel attorneys' fees and expenses, and any Plaintiff service awards; and (d) all other proceedings related to the implementation, interpretation, validity, administration, consummation, and enforcement of the terms of the Settlement Agreement. The time to appeal from this Final Order and Judgment will commence upon its entry. Judge Chen awards the Settlement Class Counsel attorneys' fees in the amount of $2,932,333.98, which is approximately 24.44% of the $12 million common Settlement Fund achieved in the case. He also awards the Settlement Class Counsel reimbursement of litigation expenses in the requested amount of $67,666.02. He also awards the Class Representatives service awards of $2,500 each, to compensate them for their efforts and commitment on behalf of the Settlement Class. All attorneys' fees, expenses, and service awards awarded will be paid from the common Settlement Fund, pursuant to the terms of the Settlement Agreement. Pursuant to Fed. R. Civ. P. 54, Judge Chen finds that there is no just reason for delay and expressly directs the Final Order and Judgment and immediate entry by the Clerk of the Court. A full-text copy of the Court's Aug. 20, 2021 Order is available at https://tinyurl.com/3mtejsea from Leagle.com. ATHIRA PHARMA: Stipulation on Service Waivers in Wang Suit Entered ------------------------------------------------------------------ In the cases, FAN WANG, and HANG GAO Plaintiffs v. ATHIRA PHARMA, INC., et al., Defendants. HARSHDEEP JAWANDHA, Plaintiffs v. ATHIRA PHARMA, INC., et al., Defendants. TIMOTHY SLYNE and TAI SLYNE, Plaintiffs v. ATHIRA PHARMA, INC., et al., Defendants, Case Nos. 21-861 TSZ, 21-862, 21-864 (W.D. Wash.), Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington, Seattle, granted the parties' Stipulation regarding waiver of service by the Underwriter Defendants and Leen Kawas, Ph.D., Regarding Civil Action No. 21-864, and Consolidation Order. On June 25, 2021, the Slyne Plaintiffs, individually and putatively on behalf of all others similarly situated, initiated a lawsuit against Athira Pharma, Inc., Glenna Mileson, Tadataka Yamada, M.D., John M. Fluke, Jr., James A. Johnson, Joseph Edelman, Dr. Kawas, and the Underwriter Defendants, by filing a document titled "Complaint—Class Action for Violation of Sections 11 and 15 of the Securities Act of 1933" in Slyne et al. v. Athira Pharma, Inc., et al., 2:21-cv-00864-JLR (W.D. Wash.) ("Slyne Action"). On June 25, 2021, two additional purported class action complaints raising issues of law and fact in common with those in the complaint in the Slyne Action were filed in the Court by Plaintiffs Fan Wang and Hang Gao in Wang et al. v. Athira Pharma, Inc., et al., Case No. 2:21-cv-00861-TSZ (W.D. Wash.) ("Wang Action"); and by Plaintiff Harshdeep Jawandha, in Jawandha v. Athira Pharma, Inc., et al., Case No. 2:21-cv-00862-JCC (W.D. Wash.) ("Jawandha Action"). On July 30, 2021, the Slyne Plaintiffs, through their counsel, asked counsel for Dr. Kawas and the Underwriter Defendants whether their clients would agree to waive service of a summons and the complaint in the Slyne Action. On Aug. 5, 2021, the parties in the Slyne Action, the Wang Action, and the Jawandha Action filed a stipulated motion seeking to consolidate the three lawsuits. On Aug. 9, 2021, the Court entered a Minute Order consolidating the Slyne Action, the Wang Action, and the Jawandha Action for all purposes and ordering that all further pleadings and papers will be filed in the Wang Action. In the Consolidation Order, the Court stated as follows: "The pretrial deadlines set in Case No. C21-861 TSZ [the Wang Action], see docket nos. 4 & 12, will control. Within fourteen (14) days of the Court's Order for the appointment of Lead Plaintiff and approval of Lead Counsel pursuant to the PSLRA, the Lead Plaintiff and Defendants will meet and confer and submit a schedule for the filing of a consolidated complaint or designation of an operative complaint, and a briefing schedule for Defendants' anticipated motion(s) to dismiss." Dr. Kawas and the Underwriter Defendants each agreed to waive service of a summons and the complaint in the Slyne Action and each executed service waivers, copies of which were filed in the Consolidated Action immediately before the Stipulation was filed. The Slyne Plaintiffs understand and agree that, notwithstanding anything to the contrary provided in the Service Waivers, Dr. Kawas and the Underwriter Defendants will have no separate obligation or duty to answer or otherwise respond to the extant complaint filed in the Slyne Action. Therefore, the Slyne Plaintiffs, Dr. Kawas, and the Underwriter Defendants, and subject to the Court's approval, stipulated as follows: 1. Dr. Kawas and the Underwriter Defendants waive service of a summons and the Complaint in the Slyne Action as set forth in the Service Waivers. 2. Dr. Kawas's and the Underwriter Defendants' obligation to answer or otherwise respond to the operative complaint in the Consolidated Action, once it has been filed or designated by Lead Plaintiff, is governed by the Consolidated Order. 3. Notwithstanding anything to the contrary in the Service Waivers, Dr. Kawas and the Underwriter Defendants will have no obligation to answer or otherwise respond to the extant complaint in the Slyne Action. Pursuant to the Stipulation, Judge Zilly so ordered. A full-text copy of the Court's Aug. 24, 2021 Order is available at https://tinyurl.com/yeauhyye from Leagle.com. Sean C. Knowles -- SKnowles@perkinscoie.com -- PERKINS COIE LLP, in Seattle, Washington, Counsel for Leen Kawas Ph.D. Anthony Todaro -- anthony.todaro@dlapiper.com -- Lianna Bash -- lianna.bash@dlapiper.com -- DLA PIPER LLP, in Seattle, Washington. John J. Clarke, Jr. -- john.clarke@dlapiper.com -- admitted pro hac vice DLA PIPER LLP, in New York City, Counsel for Defendants Goldman Sachs & Co. LLC, Jefferies LLC, Stifel, Nicolaus & Company, Incorporated and JMP Securities LLC Juli E. Farris -- jfarris@kellerrohrback.com -- Eric R. Laliberte -- elaliberte@kellerrohrback.com -- KELLER ROHRBACK L.L.P., in Seattle, Washington. Howard T. Longman, Admitted Pro Hac Vice LONGMAN LAW, P.C., in Livingston, New Jersey, Attorneys for Plaintiffs Timothy Slyne and Tai Slyne CAI INTERNATIONAL: Coffman Suit Seeks to Enjoin Stockholder Vote ---------------------------------------------------------------- CATHERINE COFFMAN v. CAI INTERNATIONAL, INC., KATHRYN G. JACKSON, ANDREW S. OGAWA, TIMOTHY B. PAGE, GARY M. SAWKA, DAVID G. REMINGTON, and JOHN H. WILLIFORD, Case No. 3:21-cv-06376 (N.D. Cal., Aug. 18, 2021) is brought on behalf of the Plaintiff and all others similarly situated alleging that CAI violated the Securities Exchange Act of 1934 and U.S. Securities and Exchange Commission. The suit seeks to enjoin the vote on a proposed transaction, pursuant to which CAI will be acquired by Mitsubishi HC Capital Inc. (MHC), through its subsidiary Cattleya Acquisition Corp. On June 17, 2021, CAI issued a press release announcing that it had entered into an Agreement and Plan of Merger with MHC dated June 17, 2021 (the "Merger Agreement"). Under the terms of the Merger Agreement, each CAI stockholder will receive $56.00 in cash for each share of CAI common stock they own (the "Merger Consideration"). The Proposed Transaction is valued at approximately $2.9 billion. On August 4, 2021, CAI filed a Schedule 14A Definitive Proxy Statement (the "Proxy Statement") with the SEC. The Proxy Statement, which recommends that CAI stockholders vote in favor of the Proposed Transaction, allegedly omits or misrepresents material information concerning the background of the Proposed Transaction. The Defendants authorized the issuance of the false and misleading Proxy Statement in violation of Sections 14(a) and 20(a) of the Exchange Act. In short, unless remedied, CAI's public stockholders will be irreparably harmed because the Proxy Statement's material misrepresentations and omissions prevent them from making a sufficiently informed voting or appraisal decision on the Proposed Transaction. Plaintiff seeks to enjoin the stockholder vote on the Proposed Transaction unless and until such Exchange Act violations are cured. The Plaintiff is, and has been at all times, a continuous stockholder of CAI. CAI is a transportation finance company. CAI's common stock trades on the New York Stock Exchange under the ticker symbol "CAI." The Individual Defendants are directors of the company.[BN] The Plaintiff is represented by: Joel E. Elkins, Esq. WEISSLAW LLP 9100 Wilshire Blvd. No. 725 E. Beverly Hills, CA 90210 Telephone: (310) 208-2800 Facsimile: (310) 209-2348 E-mail: jelkins@weisslawllp.com CANAAN 168: Gao Seeks Minimum & Overtime Wages Under FLSA & NYLL ---------------------------------------------------------------- SHIQIANG GAO, on his own behalf and on behalf of others similarly situated v. A CANAAN 168 INC d/b/a Canaan Sushi; RICKY WINATA, HUI QIN HEa/k/a Huiqin He, and MIN CHEN, Case No. Case 1:21-cv-06959 (S.D.N.Y., Aug. 18, 2021) alleges that Defendants violated the Fair Labor Standards Act and the New York Labor Law, arising from Defendants' various willful, malicious, and unlawful employment policies, patterns and practices. The Plaintiff contends that the Defendants engaged in a pattern and practice of failing to pay their employees, including Plaintiff, minimum wage for each hour worked and overtime compensation for all hours worked over 40 each workweek. The Plaintiff alleges that he is entitled to recover from the Defendants: unpaid minimum wage and unpaid overtime wages, out of pocket expenses to delivery experts on the road, liquidated damages, prejudgment and postjudgement interest; and or attorney's fees and cost. From February 15, 2016 to August 15, 2016, the Plaintiff was employed by Defendants to work as a Deliveryman for Defendants at their restaurant at 154 West 29th Street New York.[BN] The Plaintiff is represented by: John Troy, Esq. Aaron Schweitzer, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard Suite 103 Flushing, NY 11355 Telephone: (718) 762-1324 CAR CREDIT: Confirmation of Arbitration Award in Pitts Suit Flipped ------------------------------------------------------------------- In the case, CAR CREDIT, INC., Respondent v. CATHY L. PITTS, Appellant, Case No. WD84054 (Mo. App.), the Court of Appeals of Missouri for the Western District reverses the judgment of the Circuit Court of Jackson County confirming an arbitration award finding in favor of Respondent Car Credit. The action arises from Pitts' 2011 automobile purchase and related financing from Car Credit. As part of that transaction, Pitts signed an arbitration agreement in which she and Car Credit agreed to arbitrate disputes before the National Arbitration Forum ("NAF"). Car Credit subsequently repossessed the vehicle due to Pitts' failure to remain current with the terms of the financing agreement and initiated a breach of contract action in the trial court. Pitts counterclaimed alleging Car Credit engaged in unlawful practices relating to vehicle repossession and collection of alleged deficiencies and sought class certification. Car Credit voluntarily dismissed its claim and moved to compel arbitration of Pitts' counterclaim. The trial court granted the motion and ordered Pitts' counterclaim be arbitrated before the American Arbitration Association ("AAA"), as NAF was unavailable. Pitts asserts on appeal -- in three points relied on -- that the trial court erred in entering the judgment confirming the AAA arbitrator's award. Although the arguments raised in her points overlap, the grounds for each point are essentially: (1) the trial court erroneously granted Car Credit's renewed motion to compel arbitration in that "if issues of arbitrability could be delegated to any arbitration forum, the National Arbitration Forum was the exclusive forum"; (2) the trial court erroneously denied Pitts' motion to reconsider in that Hunter "vindicated Pitts' opposition to the renewed motion"; and (3) the arbitrator exceeded his authority "in that he disregarded and modified the plain language of the arbitration provision" in finding arbitration by AAA permissible under the agreement. Discussion The parties agreed to arbitrate disputes before -- but only before -- NAF, and thus any other arbitration organization lacked power to hear their disputes. In Hunter, the Missouri Supreme Court identified two types of arbitration agreements: "(1) agreements in which the parties agree to arbitrate regardless of the availability of a named arbitrator, and (2) agreements in which the parties agree to arbitrate before -- but only before -- a specified arbitrator." "If the former, section 5 of the FAA6 authorizes and requires courts to name a substitute arbitrator when the agreement fails to identify one or fails to provide a means for naming a substitute." "If the agreement is of the latter type, however, nothing in the FAA authorizes (let alone requires) a court to compel a party to arbitrate beyond the limits of the agreement it made." Like the agreement in Hunter, the Court of Appeals finds that Pitts' agreement was of the latter type. Pitts' agreement twice specified the parties' sole chosen forum by stating that "the Arbitration Organization will be the National Arbitration Forum" and that "the Arbitration Organization is the National Arbitration Forum." And similar to the Hunter agreement, Pitts' agreement also specified that disputes would be resolved by the NAF rules then in effect. Contrary to Car Credit's argument, the Court of Appeals finds that the agreement between Pitts and Car Credit did not contemplate the use of other arbitration organizations. In fact, the parties squarely rejected the use of a different arbitration organization. Indeed, the agreement clearly provided the parties the opportunity to identify an organization other than NAF, and, with equal clarity, the parties unambiguously declined to do so, thereby demonstrating their unequivocal intent to arbitrate before -- and only before -- NAF. Conclusion For these reasons, the Court of Appeals concludes that the AAA arbitrator had no power to arbitrate this dispute; thus he exceeded his power in doing so and the award he rendered must be vacated pursuant to 9 U.S.C. Section 10(a)(4). Point III is granted. Writing for the Court of Appeals, Judge Edward R. Ardini, Jr. reverses the judgment of the trial court confirming the arbitration award and remands with instructions to vacate the award and any orders inconsistent with the Opinion. A full-text copy of the Court's Aug. 24, 2021 Order is available at https://tinyurl.com/5pxvcsp4 from Leagle.com. CARIDAD SEA: Rodriguez Suit Seeks Unpaid Wages Under FLSA & NYLL ---------------------------------------------------------------- ENERIA RODRIGUEZ and JOSE RAMON FRANCO ORTIZ, on behalf of themselves and all other persons similarly situated v. CARIDAD SEA FOOD RESTAURANT CORP, EL NUEVO VALLE SEAFOOD RESTAURANT CORP, 231 EL VALLE SEAFOOD CORP., and JOSEAN C. MENDEZ VALDEZ (AKA CARLOS MENDEZ), Case No. 1:21-cv-06849 (S.D.N.Y., Aug. 13, 2021) seeks injunctive and declaratory relief against the Defendants' unlawful actions and to recover unpaid minimum and overtime wages, spread-of-hours pay, statutory damages, pre- and post-judgment interest, attorneys' fees, and costs pursuant to the Fair Labor Standards Act, the New York Labor Law and the New York Wage Theft Prevention Act. The Plaintiffs bring this action on behalf of themselves and all other similarly situated non-exempt workers of the Defendants. The Plaintiffs were employed as a cook at Defendants' restaurants at 231 Sherman Ave., Store No. 1, New York, New York and worked up to 70 hours per week. The Plaintiffs alleges that they did not receive the statutory minimum wage, overtime pay for hours worked over forty 40 week, or spread-of-hours pay. Additionally, they did not receive wage notices, or wage statements at the end of each pay period.[BN] The Plaintiffs are represented by: Clifford Tucker, Esq. SACCO & FILLAS, LLP 31-19 Newtown Avenue Seventh Floor Astoria, New York 11102 Telephone: (718) 269-2243 E-mail: CTucker@SaccoFillas.com CARMAX AUTO: Fails to Pay Minimum, OT Wages Under Labor Code ------------------------------------------------------------ JORDAN MILLER, individually and on behalf of all others similarly situated v. CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, a limited liability company; CARMAX AUTO SUPERSTORES, INC., a Virginia corporation; and DOES 1 through 10, inclusive, Case No. CCRI2103865 (Calif. Super., Riverside Cty., Aug. 13, 2021) alleges that the Defendants failed to pay minimum and regular rate and overtime compensation under the California Labor Code. The Plaintiff is a California resident that worked for Defendants in the County of Riverside, State of California, as a reconditioning associate. Carmax is part of the automobile dealers industry.[BN] The Plaintiff is represented by: Kane Moon, Esq. Allen Feghali, Esq. Enzo Nabiev, Esq. MOON & YANG, APC 1055 W. Seventh St., Suite 1880 Los Angeles, CA 90017 Telephone: (213) 232-3128 Facsimile: (213) 232-3125 E-mail: kane.moon@moonyanglaw.com allen.feghali@moonyanglaw.com enzo.nabiev@moonyanglaw.com CHOICE HOTELS: Faces Sbarbaro Suit Over Unpaid Overtime Wages ------------------------------------------------------------- SUZANNE SBARBARO, on behalf of herself and others similarly situated, Plaintiff v. CHOICE HOTELS INTERNATIONAL, INC., GULF COAST HOTEL MANAGEMENT, INC., and TRACY JONES, Defendants, Case No. 4:21-cv-02766 (S.D. Tex., August 24, 2021) seeks to recover unpaid wages and unpaid overtime wages from the Defendants pursuant to the Fair Labor Standards Act. The Plaintiff has worked for the Defendants as a full-time, non-exempt employee performing basic sales, guest care, and laundry duties. The Plaintiff brings this complaint as a collective action asserting claims that he and other similarly situated employees were victims of the Defendants' unlawful patterns, practices, and policies that violated the FLSA. The Defendants allegedly denied them of overtime compensation at the federally mandated overtime rate Instead, they were paid straight time for hours worked in excess of 40. The Corporate Defendants operate hotels. Tracy Jones directed the day-to-day activities of their employees. [BN] The Plaintiff is represented by: Howard L. Steele, Jr., Esq. STEELE LAW GROUP, PLLC 600 Travis, Suite 7373 Houston, TX 77002 Tel: (713) 659-2600 Fax: (713) 659-2601 E-mail: hsteele@steele-law-group.com CLAYTON AND MYRICK: Summary Judgment Bid in Albright Suit Denied ---------------------------------------------------------------- In the case, JORDAN ALBRIGHT, Plaintiff(s) v. CLAYTON AND MYRICK, PLLC, et al., Defendant(s), Case No. 4:19-cv-01887 SRC (E.D. Mo.), Judge Stephen R. Clark of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denies the Plaintiff's Motion for Summary Judgment. The matter requires the Court to address whether the FDCPA imposes liability on debt collectors that inform debtors that failing to pay debts may result in legal action when the debt collectors knew no legal action would be brought. Defendant Internal Credit Systems retains Defendant Clayton and Myrick to send debt collection letters that inform debtors that failing to pay the debt could result in a lawsuit or the case being referred to a local attorney. Plaintiff Jordan Albright is the recipient of two such letters. Plaintiff Albright filed a class-action suit against Defendants Clayton and Myrick, Internal Credit Systems, and Robert J. Nauseef for violating the Fair Debt Collection Practice Act, 15 U.S.C. Section 1692, et seq. In her Amended Complaint, Albright asserts that the Defendants violated 15 U.S.C. Section 1692e(2), (5), and (10). The Court dismissed Naussef from the action after Albright failed to timely serve him. Additionally, despite the Court ordering Albright to file any motion for class certification no later than March 15, 2020, Albright never filed any such motion. Accordingly, her case proceeds solely on an individual basis. Ms. Albright now moves for summary judgment. She claims the collection letters violate the FDCPA because the Defendants never intended to initiate any legal action, evidenced by the fact that the Defendants have never filed suit or referred debts like Albright's to a local attorney. The Defendants oppose the motion, and instead argue that the Court should enter summary judgment in their favor. They argue that they cannot be liable under the FDCPA for merely informing debtors that legal action may follow if a debt remains unpaid. With Albright having filed her reply, the motion is now ripe for review. Judge Clark finds that the Defendants fails to confront the central question in the case -- whether the collection letters sent to Albright stating that that legal action may follow if her debt remained unpaid violated section 1692e(5) of the FDCPA because the Defendants never intended to initiate legal action or refer the case to a local attorney, or it was at least unlikely that they would. In sum, Judge Clark holds that no binding legal authority supports that a debt collector's letter stating that legal action "may" or "could" be taken, even with evidence supporting that the debt collector did not intend such action, is misleading to an unsophisticated consumer. The determination as to whether such a letter could be deemed misleading in light of the evidence in the case will be left for a jury to decide. Accordingly, because he does not conclude Albright is entitled to judgment as a matter of the law, Judge Clark denies Albright's Motion for Summary Judgment. He also denies Albright's request of oral argument as moot. The Judge orders the parties to mediation and will enter a separate order referring the parties to mediation. Lastly, the Judge sets the matter for trial on Jan. 10, 2022, at 9:00 a.m. in Courtroom 14-North. A full-text copy of the Court's Aug. 24, 2021 Memorandum & Order is available at https://tinyurl.com/3adkv7wp from Leagle.com. CLICKTALE INC: Court Tosses Amended Yale Complaint With Prejudice ----------------------------------------------------------------- In the case, AMBER YALE, Plaintiff v. CLICKTALE, INC., Defendants, Case No. 20-cv-07575-LB (N.D. Cal.), Magistrate Judge Laurel Beeler of the U.S. District Court for the Northern District of California, San Francisco Division, grants the motion to dismiss the amended complaint with prejudice. Gap sells clothing online and uses Clicktale's software to see what visitors to its website are doing. The Plaintiff -- on behalf of a putative California class -- claims that this is an illegal wiretap and a violation of her right to privacy under California law. The Court previously dismissed the case primarily because the Plaintiff did not plausibly plead wiretapping. The previous dismissal order summarized the allegations about the alleged wiretapping. The main allegations in the new complaint have not changed. In short, Gap uses Clicktale's "Event-Triggered Recorder" software to watch what its users are doing. The new complaint adds allegations about how Clicktale captures, stores, and analyzes data for its clients (such as indexing it for the client's use and showing a user's purchase history) and Clicktale's lack of disclosures to website users about how the software works. All parties consented to magistrate jurisdiction under 28 U.S.C. Section 636. In recent cases involving the Plaintiff's counsel, including Graham v. Noom, the Court dismissed similar claims against another software-services provider called FullStory. Its reasoning in Graham controls the instant case: Clicktale is not a third-party wiretapper because it is not an outsider and instead is a software vendor that provides a service that allows Gap to analyze its own data. The Plaintiff does not state a claim for wiretapping (or invasion of privacy based on the wiretapping) for the reasons in the court's earlier order. Judge Beler holds that the new allegations -- illuminating the functionalities of the software and the lack of disclosures to website users -- do not change this conclusion. The Plaintiff also lacks standing for the claim under California's Invasion of Privacy Act: There is no wiretapping, there thus is no injury that creates a private right of action under the statute, and there is no injury in fact that conveys Article III standing. Judge Beler dismisses the complaint with prejudice because the Plaintiff did not cure the earlier complaint's deficiencies. Her Order disposes of ECF No. 38. A full-text copy of the Court's Aug. 24, 2021 Order is available at https://tinyurl.com/fhvyskjn from Leagle.com. CORECIVIC OF TENNESSEE: Rios Sues Over Unpaid Overtime Wages ------------------------------------------------------------ ALFONSO RIOS, on behalf of himself and all others similarly situated, Plaintiff v. CORECIVIC OF TENNESSEE, LLC, Defendant, Case No. 1:21-cv-02295 (D. Colo., August 25, 2021) brings this class action complaint to challenge the Defendant's alleged violations of the Colorado Wage Claim Act and the Colorado Overtime and Minimum Pay Standards. The Plaintiff has worked for the Defendant as an hourly paid and non-exempt correctional officer from approximately November 2005 to March 2021. The Plaintiff alleges that the Defendant failed to compensate him and other similarly situated employees for all the time they spent performing duties for the Defendant that includes the pre-shift work they performed. As a result, they were not properly paid overtime compensation at the rate of one and one-half times their lawfully earned overtime compensation for all hours worked in excess of 40 per workweek. The Plaintiff added that the Defendant failed and refused to perform its obligations under the agreement by failing to pay for all hours worked by its employees. On behalf of himself and all other similarly situated correctional officers, the Plaintiff seeks to recover damages from the Defendant as a result of its alleged breach of contract for the last three years, that includes all their unpaid wages, overtime compensation and liquidated damages, as well as attorneys' fees, costs and expenses, pre- and post-judgment interest, and other relief as may be necessary and appropriate. Corecivic of Tennessee, LLC provides private prison services across the U.S. [BN] The Plaintiff is represented by: Hans A. Nilges, Esq. NILGES DRAHER, LLC 7266 Portage St., N.W. Suite D Massillon, OH 44646 Tel: (330) 470-4428 Fax: (330) 754-1430 E-mail: hans@ohlaborlaw.com - and – Don J. Foty, Esq. HODGES & FOTY, L.L.P. 4409 Montrose Blvd., Ste. 200 Houston, TX 77006 Tel: (713) 523-0001 Fax: (713) 523-1116 E-mail: dfoty@hftrialfirm.com - and – Anthony J. Lazzaro, Esq. Lori M. Griffin, Esq. Alanna Klein Fischer, Esq. THE LAZZARO LAW FIRM, LLC 34555 Chagrin Blvd., Suite 250 Moreland Hills, OH 44022 Tel: (216) 696-5000 Fax: (216) 696-7005 E-mail: anthony@lazzarolawfirm.com lori@lazzarolawfirm.com alanna@lazzarolawfirm.com CYPRESS HEALTHCARE: Faces Bizzie Employment in Calif. State Court ----------------------------------------------------------------- A class action lawsuit has been filed against Cypress Healthcare Group, LLC. The case is captioned as Anthony Bizzie vs. Cypress Healthcare Group, LLC, Case No. 34-2021-00306246-CU-OE-GDS (Calif. Super., Sacramento Cty., Aug. 16, 2021). The suit is brought over employment-related issues. The Defendant includes Does 1-100 and and Lane Healthcare Center.[BN] The Plaintiff is represented by: Edwin Aiwazian, Esq. LAWYERS for JUSTICE, PC 410 Arden Ave., Ste. 203 Glendale, CA 91203-4007 Telephone: (818) 265-1020 Facsimile: (818) 265-1021 E-mail: edwin@calljustice.com EDUCATIONAL CREDIT: S.D. California Dismisses Mahboob Class Suit ---------------------------------------------------------------- Judge Todd W. Robinson of the U.S. District Court for the Southern District of California dismisses the case, BEHESHTA MAHBOOB, on behalf of herself and all others similarly situated, Plaintiff v. EDUCATIONAL CREDIT MANAGEMENT CORPORATION, Defendant, Case No. 15-CV-628 TWR (AGS) (S.D. Cal.), without prejudice. Defendant Educational Credit Management Corp. ("ECMC") is a non-profit organization that is a guaranty agency in the Federal Family Education Loan Program. In the course of its business, the Defendant places and receives a large amount of telephone calls. During the period between Aug. 2, 2014 and March 31, 2015, the Defendant recorded all inbound and outbound calls that reached a live customer service representative using a phone dialer system provided by Noble Systems Corp. During the class period, the Noble Dialer was incorrectly programmed for some of Defendant's phone lines such that the opening message was set as non-mandatory for inbound calls. The "Master List" of calls produced by the Defendant identifies 2,218 connected inbound calls from cellphone numbers with California area codes with call durations over zero seconds and hold times under four seconds to phone lines set as non-mandatory. This number equates to 1,767 unique cellphone numbers, or, as the Plaintiff contends, 1,767 unique class members. The Plaintiff contends that, "as a result of a negligent dialing system setup and failure to notice the error, the Defendant violated the California Invasion of Privacy Act ("CIPA") thousands of times by wrongly recording private telephone calls with its customers without their consent." Plaintiff AJ Reyes initiated the putative class action on March 20, 2015, alleging violations of CIPA, Cal. Pen. Code Section 632.7, and the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Section 227, et seq. On May 16, 2016, the Honorable Cynthia A. Bashant granted the Defendant's motion for summary judgment as to Plaintiff Reyes' TCPA claim and denied the motion as to the CIPA claim. After this ruling, only the CIPA claim remained. On Sept. 20, 2017, Judge Bashant granted Plaintiff Reyes' motion for class certification. She certified a class pursuant to Federal Rule of Civil Procedure (b)(2) (seeking injunctive relief) and (b)(3) (seeking monetary damages) and appointed Plaintiff Reyes as class representative. On Dec. 21, 2017, the Defendant received permission from the Ninth Circuit to appeal the class certification order pursuant to Federal Rule of Civil Procedure 23(f). On March 13, 2018, Judge Bashant issued an order staying "all district court proceedings" and allowing either party to file a request to lift the stay within seven days of the Ninth Circuit's decision. She also denied without prejudice Plaintiff Reyes' motion for leave to amend the complaint to add Mahboob as a party. On March 16, 2018, Mahboob filed an action against Defendant in the Central District of California alleging the same putative class action claims as alleged in the case -- Mahboob v. Educational Credit Management Corp., No. 2:18-cv-2221-JAK-GJS (C.D. Cal.). The judge in the Central District action ultimately ordered the case stayed pending resolution of the appeal of the case. On July 23, 2019, the Ninth Circuit issued an Order vacating the class certification order. On Aug. 6, 2019, Plaintiff Reyes filed a motion for leave to amend seeking to add Mahboob as a plaintiff. On Aug. 14, 2019, the Ninth Circuit Mandate issued. On Jan. 15, 2020, Judge Bashant granted the motion for leave to amend, permitting Plaintiff Reyes to file the First Amended Complaint adding Mahboob as plaintiff. On Jan. 22, 2020, the First Amended Complaint was filed, which is the operative pleading. On Feb. 28, 2020, Judge Bashant conducted an evidentiary hearing regarding Reyes' standing, as ordered by the Ninth Circuit. Two days after the evidentiary hearing, on March 2, 2020, she issued an order, dismissing Plaintiff Reyes' claims against the Defendant. On March 10, 2020, the Defendant filed a Petition for Writ of Mandamus with the Ninth Circuit, contending that Judge Bashant failed to execute the Ninth Circuit's Mandate. On March 25, 2020, the Ninth Circuit denied the Petition, stating the Defendant "has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus." On April 21, 2020, the judge in the Central District action granted the parties' joint motion to dismiss Mahboob's case in that court without prejudice. On Sept. 24, 2020, the instant action was transferred to Judge Robinson. On Nov. 30, 2020, Plaintiff Mahboob filed the pending Motion for Class Certification. As Plaintiff Reyes did before her, Plaintiff Mahboob moved to certify a class pursuant to Federal Rule of Civil Procedure 23(b)(2) and (b)(3). On May 10, 2021, the Defendant filed an Opposition to the Motion. On June 29, 2021, the Court conducted oral argument. At oral argument, the Court questioned both Parties about the Defendant's contention that the Ninth Circuit Mandate and Lierboe require dismissal of the action. Following oral argument, pursuant to an Order of the Court, the Parties submitted supplemental briefs addressing the issue of whether the case should be dismissed pursuant to the Ninth Circuit Mandate and Lierboe v. State Farm, 350 F.3d 1018 (9th Cir. 2003). In Lierboe v. State Farm, 350 F.3d 1018 (9th Cir. 2003), the plaintiff filed a class action asserting that an insurer's "anti-stacking" policy violated Montana state law. After the district court certified the class, the Supreme Court of Montana held on a certified question that the named plaintiff had no claim under state law. The Ninth Circuit then held that because the sole named representative "had no stacking claim from the outset of her litigation," the district court's class certification order "must be vacated." Judge Robinson finds that district courts in the Ninth Circuit have also applied the Lierboe holding. For example, in Zapien v. Washington Mutual., Inc., No. 07CV385 DMS (CAB), 2008 WL 11509012 (S.D. Cal. June 17, 2008), the court allowed an amended complaint to be filed, adding a second named plaintiff to a putative class action. The court then held that the second plaintiff was improperly added to the case because the court determined that the initial named plaintiff never had standing to assert her claim. The court stated that "when the sole named plaintiff in a class action lawsuit lacks standing, intervention or substitution of another named plaintiff is not permissible, and the court must dismiss the claim." The Zapien court dismissed the action without leave to amend because in the original plaintiff never had an interest in the litigation, she could not have transferred it to Higareda [i.e., the newly added plaintiff]. Since the plaintiffs may not substitute Higareda under the circumstances, their attempted amendment cannot cure the standing defect. Other district courts have ruled similarly. Judge Robinson concludes that after the Mandate issued and prior to spreading the Mandate, lifting the stay, or conducting the evidentiary hearing to determine whether Reyes heard the warning, Judge Bashant granted Reyes' motion for leave to amend the Complaint to add Mahboob as a Plaintiff, over the opposition of Defendant. After having the benefit of the supplementary briefing of the Parties filed after the case was transferred to him, Judge Robinson, respectfully finds that the district court lacked the authority to grant the opposed request to add Mahboob as a Plaintiff prior to spreading the Mandate or implementing the Mandate's instruction to "determine whether Reyes has met his burden of proving that he did not hear the recording warning" and dismissing the case if he did not hear the warning. Because Reyes failed to meet his burden of proving that he did not hear the warning, the Court is required to dismiss the case without prejudice for lack of jurisdiction pursuant to the Mandate and Lierboe. For these reasons, Judge Robinson dismisses the action without prejudice. The Motion to Certify Class is denied as moot. The Clerk of the Court will close the file. A full-text copy of the Court's Aug. 24, 2021 Opinion is available at https://tinyurl.com/pctrkva6 from Leagle.com. ELANCO ANIMAL: Gjelland Suit Transferred to N.D. Illinois --------------------------------------------------------- The case styled as David Gjelland, Danielle McQuaid, individually and on behalf of all others similarly situated v. Elanco Animal Health, Inc., Case No. 1:21-cv-01178, was transferred from the U.S. District Court for the Southern District of Indiana, to the U.S. District Court for the Northern District of Illinois on Aug. 31, 2021. The District Court Clerk assigned Case No. 1:21-cv-04448 to the proceeding. The nature of suit is stated as Other Fraud. Elanco Animal Health Incorporated -- https://www.elanco.com/en-us -- is an American pharmaceutical company which produces medicines and vaccinations for pets and livestock.[BN] The Plaintiffs are represented by: Brad A. Catlin, Esq. WILLIAMS & PIATT, LLC 301 Massachusetts Avenue, Suite 300 Indianapolis, IN 46204 Phone: (317) 633-5270 Status: (317) 426-3348 Email: brad@williamspiatt.com - and - Brian C. Gudmundson, Esq. ZIMMERMAN REED PLLP 1100 IDS Center 80 South 8th Street Minneapolis, MN 55402 Phone: (612) 341-0400 Email: bcg@zimmreed.com - and - Michael J. Laird, Esq. Rachel K. Tack, Esq. ZIMMERMAN REED LLP 80 S 8th Street 1100 IDS Center Minneapolis, MN 55402 Phone: (612) 341-0400 Email: michael.laird@zimmreed.com rachel.tack@zimmreed.com - and - Ronald J Waicukauski, Esq. PRICE, JACKSON, WAICUKAUSLI & MELLOWITZ, P.C. The Hammond Block Building 301 Massachusetts Avenue Indianapolis, IN 46204 Phone: (317) 633-8787 The Defendant is represented by: Andrew Lorin Campbell, Esq. Kathy Lynn Osborn, Esq. FAEGRE DRINKER BIDDLE & REATH LLP (Indianapolis) 300 North Meridian Street, Suite 2500 Indianapolis, IN 46204 Phone: (317) 237-0300 Status: (317) 237-1000 Email: andrew.campbell@faegredrinker.com kathy.osborn@faegrebd.com ELANCO ANIMAL: Walsh Suit Transferred to N.D. Illinois ------------------------------------------------------ The case styled as Jennifer Walsh, individually and on behalf of all others similarly situated v. Elanco Animal Health, Inc., Case No. 1:21-cv-02929, was transferred from the U.S. District Court for the Southern District of New York, to the U.S. District Court for the Northern District of Illinois on Aug. 31, 2021. The District Court Clerk assigned Case No. 1:21-cv-04848 to the proceeding. The nature of suit is stated as Other Fraud. Elanco Animal Health Incorporated -- https://www.elanco.com/en-us -- is an American pharmaceutical company which produces medicines and vaccinations for pets and livestock.[BN] The Plaintiffs are represented by: Matthew Moylan Guiney, Esq. WOLF HALDSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Phone: (212) 545-4761 Status: (212) 545-4758 Email: guiney@whafh.com - and - Kevin G. Cooper, Esq. CARELLA, BYRNE, CECHI, OLSTEIN, BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Phone: (973) 994-1700 Email: kcooper@carellabyrne.com The Defendant is represented by: William Edward Vita SHOOK HARDY & BACON, LLP 1325 Avenue of the Americas. 28th FLoor New York, NY 10019 Phone: (212) 779-6103 Email: wvita@shb.com EXTREME CUSTOMS: Fails to Properly Pay OT, Quinones Suit Claims --------------------------------------------------------------- JESUS QUINONES, on behalf of himself and all others similarly situated, Plaintiff v. EXTREME CUSTOMS, LLC, and TYLER REILLY, Defendants, Case No. 1:21-cv-00995-WCG (E.D. Wis., August 25, 2021) is a collective and class action complaint brought against the Defendants for their alleged unlawful policy, practice, custom, and/or scheme that violated the Fair Labor Standards Act and the Wisconsin's Wage Payment and Collection Laws. The Plaintiff was hired by the Defendants in approximately March 2021 until in approximately July 2021 into the position of Sales Associate working primarily at the Defendants' Oshkosh, Wisconsin location. According to the complaint, the Plaintiff and other similarly situated employees were compensated by the Defendants with monetary bonuses, commissions, incentives, awards, and/or other rewards and payments based on their hours worked or work performed during their employment with the Defendants. However, the Defendants failed to include all forms of non-discretionary compensation in their regular rates of pay for overtime computation purposes. As a result, despite regularly working more than 40 hours per week, they were not properly compensated for their overtime compensation at the federally mandated overtime rate for all hours worked in excess of 40 in a workweek, the suit alleges. Extreme Customs, LLC sells vehicle accessories. Tyler Reilly owns, operates, and manages Extreme Customs. [BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Tel: (262) 780-1953 Fax: (262) 565-6469 E-mail: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com FARHAZ SIRAJUDDIN: Aslam Sues Over Failure to Pay Overtime Wages ---------------------------------------------------------------- ALI ASLAM, individually and on behalf of others similarly situated, Plaintiff v. FARHAZ SIRAJUDDIN, ANGEL FERRY, INC., ANGEL ROSHAN, INC., ANGEL INAARA, INC., ANGEL AASNA, INC., ANGEL ARCH, INC., ANGEL BUSINESS, INC., ANGEL PRINCESS, INC., ANGE FARHAZ CHEVRON LLC, ANGEL SAMAN MOBIL LLC, PRINCESS SERENA LLC, ANGEL MUNEERA LLC, ANGEL ALIYAN, INC., PRINCE ARSH, LLC, ANGEL SHABANA, LLC, ANGEL ARIA, INC., ANGEL PAAYAL LLC, ANGEL SHAHNAZ LLC, ANGELS NOOR ENTERPRISES, LLC, and ANGELS ALIZAIN LLC, Defendants, Case No. 4:21-cv-02788 (S.D. Tex., August 25, 2021) brings this complaint as a collective action against the Defendants for their alleged violations of the Fair Labor Standards Act, The Plaintiff has worked as a cashier and manager from February 20, 2019 until July 2021 at the Defendants' gas station/convenience store owned by Sirajuddin's company Angel Ferry, Inc. The Plaintiff claims that he and other similarly situated employees regularly worked more than 40 hours per week during the time they worked for the Defendants. Accordingly, the Defendant paid them on an hourly basis, but they were paid the same hourly rate only for all hours they worked. The Defendants purportedly denied them of an overtime premium at the rate of one and one-half times their regular rates of pay for any of the hours they worked in excess of 40 in a workweek. On behalf of himself and all other similarly situated employees, the Plaintiff seeks all unpaid overtime wages at the applicable rate as well as liquidated damages, pre- and post-judgment interests, all costs and attorney's fees, and other relief as the Court deems just and equitable. Farhaz Sirajuddin owns and controls the Corporate Defendants, which are convenience stores operating in the Houston, Texas area. [BN] The Plaintiff is represented by: Josef F. Buenker, Esq. THE BUENKER LAW FIRM 2060 North Loop West, Suite 215 Houston, TX 77018 Tel: (713) 868-3388 Fax: (713) 683-9940 E-mail: jbuenker@buenkerlaw.com FED INC: Calcano Files ADA Suit in S.D. New York ------------------------------------------------ A class action lawsuit has been filed against Fed, Inc. The case is styled as Evelina Calcano, on behalf of herself and all other persons similarly situated v. Fed, Inc., Case No. 1:21-cv-07334 (S.D.N.Y., Aug. 31, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Fed, Inc. -- https://fedinc.com/ -- is a multi-discipline firm with an extensive portfolio of projects across a diverse range of services including civil engineering, electrical engineering, mechanical engineering and structural engineering.[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 FEIN SUCH KAHN: Faces Vaughan Suit Over Deceptive Collection Letter ------------------------------------------------------------------- DOUGLAS VAUGHAN, individually and on behalf of all others similarly situated, Plaintiff v. FEIN, SUCH, KAHN & SHEPARD, P.C. and JOHN DOES 1-25, Defendants, Case No. 2:21-cv-16013 (D.N.J., August 25, 2021) is a class action complaint brought against the Defendants for their alleged willful, negligent and/or intentional violations of the Fair Debt Collection Practices Act. According to the complaint, the Plaintiff has an alleged debt incurred to Greater Alliance Federal Credit Union, who contracted with the Defendant to collect the alleged debt. Subsequently on or about March 4, 2021, the Defendant sent the Plaintiff a collection letter, which references an alleged debt that has been transformed into a "wage garnishment" with an alleged "current balance of wage garnishment as of March 4, 2021 of $933.54. However, the Defendant's letter is false, deceptive, misleading, and unfair because it failed to state that interest is accruing on the judgment and is waived on the judgment. Therefore the "Total Due" on this judgment is more than $933.54, due to the accumulation of additional interest, says the suit. Allegedly, the letter failed to clearly state the current creditor or the original creditor, and failed to clearly identify themselves as "the debt collector" nor does it state to communicate with "their office." Therefore, the Defendant failed to clearly communicated the Plaintiff's dispute rights as required under 15 U.S.C. Section 1692g. As a result of the Defendant's alleged unlawful collection practices, the Plaintiff and other similarly situated individuals have suffered concrete and particularized harm. Thus, the Plaintiff seeks statutory and actual damages, litigation costs, reasonable attorneys' fees and expenses, pre- and post-judgment interest, and other relief as the Court may deem just and proper. Fein, Such, Kahn & Shepard, P.C is a debt collector. [BN] The Plaintiff is represented by: Raphael Deutsch, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Tel: (201) 282-6500 ext. 107 Fax: (201) 282-6501 E-mail: rdeutsch@steinsakslegal.com FIRST NATIONAL: Faces Disla FDCPA Suit in New Jersey Fed. Ct. ------------------------------------------------------------- A class action lawsuit has been filed against First National Collection Bureau, Inc. et al. The case is captioned as ELISEO DISLA v. FIRST NATIONAL COLLECTION BUREAU, INC. et al., Case No. 2:21-cv-15312-CCC-CLW (D.N.J., Aug. 13, 2021). The suit alleges violation of the Fair Debt Collection Practices Act involving consumer credit. The case is assigned to the Hon. Judge Claire C. Cecchi. The Defendants include First National Collection Bureau, Inc. and LVNV Funding, LLC.[BN] The Plaintiff is represented by: Joseph K. Jones, Esq. JONES, WOLF & KAPASI, LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227-5900 Facsimile: (973) 244-0019 E-mail: jkj@legaljones.com FONTANA & FONTANA: Class Settlement in Bardales Suit Wins Final OK ------------------------------------------------------------------ In the case, CORNELIA BARDALES, ET AL. v. FONTANA & FONTANA, LLC, ET AL. SECTION: D (2), Civil Action No. 19-340-WBV-DMD (E.D. La.), Judge Wendy B. Vitter of the U.S. District Court for the Eastern District of Louisiana granted in part and denied in part as moot the Plaintiffs' Consent Motion for Final Approval of Class Settlement and Class Certification. On Jan. 16, 2019, Ms. Bardales filed a Class Action Complaint, alleging that Defendants violated the FDCPA by sending her, and other similarly situated consumers, a form collection letter that failed to notify her that the balance due on an outstanding debt may increase due to interest and fees. She alleged that on Nov. 28, 2018, the Defendants sent, or caused to be sent, on behalf of Mariner Finance of Harvey a form collection letter. The letter is signed by both of the individual defendants, and identifies a past due balance of $244.04 and a net payoff of $2,773.81. Ms. Bardales alleged that Mariner Finance of Harvey assesses interest and/or fees on its loans, but that the Defendants' collection letter failed to notify her that interest and/or fees are accruing on the debt. Ms. Bardales claims that, through her counsel, she sent a letter to Defendants on Dec. 20, 2018, disputing and requesting verification of the alleged debt. Instead of verifying the debt, the Defendants filed a lawsuit against her in the First Parish Court for Jefferson Parish, Louisiana, entitled Pioneer Credit Company dba Mariner Finance LLC v. Cornelia Bardeles, Case No. 165-531, to collect the alleged past due Mariner Finance of Harvey debt. In response, Ms. Bardales filed the instant class action litigation, asserting claims for relief individually and on behalf of a class of consumers who: (1) within one year prior to the filing of this action; (2) were sent an initial collection letter from defendants; (3) in an attempt to recover an alleged obligation accruing interest and/or fees incurred for personal, family, or household purposes; and (4) in which defendants did not disclose that they were continuing to add interest and/or fees to the subject account. Ms. Bardales subsequently filed an Amended Complaint, naming Donald Russell as an additional plaintiff. On Sept. 30, 2020, the Court granted the Plaintiffs' Motion for Class Certification, and granted in part, as modified, and denied in part, as moot, the Plaintiffs' Joint Motion for Preliminary Approval of Class Settlement and Preliminary Determination on Class Certification. In the Order, the Court preliminarily certified the following class for settlement purposes under Fed. R. Civ. P. 23 (a) and 23(b)(3): A Louisiana class of persons who: (i) within one year prior to the filing of this action; (ii) were sent a letter by Defendants in the form of Exhibit 1 or 2, attached to the Amended Class Action Complaint; (iii) in an attempt to recover an alleged obligation accruing interest and/or fees incurred for personal, family, or household purposes; and (iv) in which Defendants did not disclose that they were continuing to add interest and/or fees to the subject account. The Court also preliminarily approved the terms of the Class Settlement Agreement, which provides a class-wide settlement payment by Defendants of $10,000, an amount greater than 1% of Defendants' net worth (the maximum recovery permitted pursuant to the FDCPA, 15 U.S.C. Section 1692k(a)(2)(B)), which will result in payment of $128.20 to each of the 78 class members who submitted a valid claim form, as well as an incentive award to the Plaintiffs of $4,000 each, an award of reasonable attorney's fees to the class counsel, set forth in a prior motion for attorney's fees, an additional $2,000 to the class counsel for work performed in connection with the instant Motion, payment of the class administrative services, and a release from all claims pled or that could have been raised regarding the underlying collection letters. The Class Settlement Agreement also contains a Release provision, providing that class members will release all claims made or which could have been made against the Defendants and the released parties, as defined by the Class Settlement Agreement, or which in any way arise out of the allegations that were or could have been made by class members arising out of the Defendants' mailing of the debt collection letters at issue. The Court also ordered first-class mail notice of the Class Settlement Agreement to all prospective class members (or to their attorneys), from a list of names and addresses provided by Defendants and updated from a National Change of Address search performed by the settlement administrator, First Class, Inc., which provided class members with an opportunity either to submit a claim, exclude themselves from the settlement class, or object to the proposed settlement. Additionally, the Court scheduled a Fairness Hearing for Feb. 9, 2021. The Plaintiffs filed the instant Consent Motion for Final Approval of Class Settlement and Class Certification on Jan. 15, 2021. Judge Vitter held a Fairness Hearing on Aug. 24, 2021, during which the parties presented arguments and evidence to the Court in support of the Motion. For the same reasons set forth in the Court's Sept. 30, 2020 Order and Reasons, Judge Vitter finds that the settlement class satisfies the prerequisites of Fed. R. Civ. P. 23(a) and 23(b)(3). As such, she confirms its prior appointment of Cornelia Bardales and Donald Russell as the representatives of the class, to appear on behalf of and to represent the class pursuant to Rule 23(a)(4). The Judge also finds that the Plaintiffs' counsel are qualified to serve as class counsel under Fed. R. Civ. P. 23(g) and, therefore, confirms the Court's prior appointment of O. Randolph Bragg and Karen E. Gesund as the class counsel. The Judge further finds that the settlement class satisfies the requirements of Rule 23(b)(3), and that proceeding as a class action is the superior and most efficient means of resolving the claims of the case. After careful consideration, and in light of the conclusions stated and set forth in the Court's Sept. 30, 2020 Order and Reasons, the settlement class previously certified preliminarily is finally certified for settlement purposes under Fed. R. Civ. P. 23(a) and 23(b)(3). After consideration of the evidence, arguments, and specifically noting that no objections were filed or voiced during the Fairness Hearing, Judge Vitter concludes that the terms and provisions of the Class Settlement Agreement, including all exhibits, have been entered into in good faith and are fully and finally approved as fair, reasonable, and adequate, and are in full compliance with all applicable requirements of the Federal Rules of Civil Procedure, the United States Constitution, including the Due Process Clause, and any other applicable law. In the instant Motion, the Plaintiffs assert that the Defendants have agreed to pay class counsel's attorney's fees and costs in an amount determined by the Court, and note that the class counsel filed an unopposed motion requesting $36,420.41 in attorney's fees and costs. The Plaintiffs also assert that the parties have agreed to an additional award of $2,000 to the class counsel for preparing the instant Motion and performing "whatever additional duties are necessary to conclude the case." They did not submit any billing records or affidavits from the class counsel with the instant Motion to support the request for additional attorney's fees. On May 3, 2021, the magistrate judge issued a Report and Recommendation, recommending that the Court grants the Plaintiffs' Motion for Award of Plaintiffs' Attorneys' Fees and Costs and order Defendants to pay attorney's fees in the amount of $27,067.50 and $2,180.41 in costs. On June 8, 2021, the Court issued an Order and Reasons adopting in part and modifying in part the Report and Recommendation, and granting as modified the Motion for Attorney's Fees. For the reasons set forth in the prior Order, the Court awarded attorney's fees in the amount of $25,542. and awarded $2,180.41 in costs. Thus, the instant Motion is denied as moot to the extent the Plaintiffs seek a determination of the class counsel's attorney's fees and costs as requested in the prior motion. After reviewing the evidence and the arguments of counsel, Judge Vitter grants the Plaintiffs' request for an additional award of $2,000. in attorney's fees to the class counsel. She notes that this award of attorney's fees is separate and apart from the settlement amount to the class. Further, the attorney's fees are to be paid by the Defendants. According to the Release provision in the Class Settlement Agreement, the class members agreed to release all claims made or which could have been made against the Defendants and the released parties, as defined by the Class Settlement Agreement, or which in any way arise out of the allegations that were or could have been made by the class members arising out of the Defendants' mailing of the debt collection letters at issue. The Release provision will be effective as of the date of the Order. For the foregoing reasons, Judge Vitter granted in part and denied in part, as moot, the Consent Motion for Final Approval of Class Settlement and Class Certification, and approved the Class Settlement Agreement. To the extent the Plaintiffs ask the Court to determine the amount of the class counsel's award of attorney's fees and costs, which were the subject of a prior motion and Order, the Motion is denied in part, as moot. The Motion is otherwise granted. A full-text copy of the Court's Aug. 24, 2021 Order & Reasons is available at https://tinyurl.com/sz4ajd3h from Leagle.com. FOOD UNIVERSE: Class Suit Seeks Minimum Wage, OT Under FLSA, NYLL ----------------------------------------------------------------- JACINTO HERNANDEZ v. FOOD UNIVERSE MARKETPLACE, and DOMENICAN EFREN, individually, Case No. 1:21-cv-04639 (E.D.N.Y., Aug. 18, 2021) is a civil action seeking to recover unpaid overtime and minimum wage compensation and notice damages under the Fair Labor Standards Act and the New York Labor Law. The Plaintiff brings this action on behalf of himself and all similarly situated current and former non-exempt workers who elect to opt-in to this action pursuant to the FLSA, and specifically, the collective action provision of 29 U.S.C. section 216(b), to remedy violations of the wage-and-hour provisions of the FLSA that occurred at Defendants' business. The Plaintiff and the FLSA Collective also bring this action under the Wage Theft Protection Act for the Defendants' failure to provide written notice of wage rates in violation of said laws. The FLSA collective seeks injunctive and declaratory relief against Defendants for their unlawful actions, compensation for their failure to pay overtime wages, and liquidated damages, compensatory damages, pre-judgment and post-judgment interest, and attorneys' fees and costs, pursuant to the FLSA and NYLL. From September 2017 to June 2021, Plaintiff worked as a supermarket employee at Food Universe Marketplace located at 32-11 Beach Channel Dr., Far Rockaway, New York.[BN] The Plaintiff is represented by: Jacob Aronauer, Esq. THE LAW OFFICES OF JACOB ARONAUER 225 Broadway, 3 Floor New York, NY 10007 Telephone: (212) 323-6980 E-mail: jaronauer@aronauerlaw.com FORTESSA TABLEWARE: Calcano Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Fortessa Tableware Solutions, LLC. The case is styled as Evelina Calcano, on behalf of herself and all other persons similarly situated v. Fortessa Tableware Solutions, LLC, Case No. 1:21-cv-07335 (S.D.N.Y., Aug. 31, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Fortessa Tableware Solutions -- https://www.fortessa.com/ -- is a global leader in providing premium tableware to culinary professionals, the international lodging industry, and high-end retailers.[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 FREEPORT ASSESSOR: Hayde Files Suit in N.Y. Sup. Ct. ---------------------------------------------------- A class action lawsuit has been filed against The Assessor of the Village of Freeport, et al. The case is styled as Marguerite Hayde, all other similarly situated Petitioners on the annexed SCHEDULE A, Petitioner v. The Assessor of the Village of Freeport, The Board of Assessment Review of the Village of Freeport, Respondents, Case No. 611098/2021 (N.Y. Sup. Ct., Nassau Cty., Aug. 31, 2021). The case type is stated as SP-CPLR Article 78 (Body or Officer) for Notice of Petition. The Assessor of the Village of Freeport -- https://www.freeportny.gov/8/Assessor -- issues property tax assessments and exemptions .[BN] The Petitioner is represented by: Gianna Lyn Rey, Esq. 132 Spruce St Cedarhurst, NY 11516-1915 GENERAL MOTORS: Faces Endress Suit Over Defective SDM System ------------------------------------------------------------ WILLIAM J. ENDRESS, LEE FORD, GARY CLARK, and IRA BONDSTEEL, Individually And On Behalf Of All Others Similarly Situated v. GENERAL MOTORS LLC, GENERAL MOTORS HOLDINGS LLC, GENERAL MOTORS COMPANY, and APTIV SERVICES US, LLC, Case No. 3:21-cv-15508-ZNQ-LHG (D.N.J., Aug. 17, 2021) concerns a catastrophic system failure in the airbag control unit for General Motors' vehicles. According to the complaint, during the sudden shock of a car crash, life or death of the occupants often hinges on several thousandths of a second and the functionality of systems designed by Defendants. Upon impact, sensors located throughout the vehicle fire warnings to these systems to brace for impact. Passive systems in the vehicle become active: pre-tensioned seat belts tighten; designed areas of the vehicle may crumple; and signals race to the airbag control unit to determine whether to deploy the airbags. When activated properly, these systems drastically reduce the risk of injury and death. Likewise, when the systems fail the resulting injuries may be horrific. At the time of failure, airbags and/or seatbelts fail to deploy properly and vehicle occupants have no protection when they need it most. This unnecessarily risks the lives of millions of consumers, says the suit. This airbag control unit in General Motors' vehicles is referred to as a Sensing and Diagnostic Module ("SDM System"). The SDM is essentially a computer dedicated to the airbag and seatbelt system. Generally, it contains an electronic control unit that receives sensor inputs, and an algorithm determines whether to deploy the airbags in the event of a crash. Delphi engineers developed the system in the late 1990s, and Delphi has since manufactured SDMs for General Motors throughout the past two decades. More specifically, the SDM in Class Vehicles contains a dangerous defect in its software. The software in the SDM engages the airbags and/or seatbelt pre-tensioners based on pre-programmed algorithms and thresholds. However, the software also contains a calibration not to deploy the airbags should the calibrated time for deployment pass (the Deployment Window), causing a 'dead-zone' where the airbags and/or seatbelts will not deploy despite further impacts or collisions (the "SDM System Defect"). The consequences of the SDM System Defect manifest during specific accidents triggering this dead zone, such as those involving multiple impacts and/or accidents that increase in severity over time, causing the airbags and seatbelts in the Class Vehicles to fail to deploy. The Defect deprives consumers of life-saving protection, the Plaintiffs contend. General Motors Company an American automotive multinational corporation headquartered in Detroit, Michigan, United States.[BN] The Plaintiffs are represented by: James E. Cecchi, Esq. Caroline F. Bartlett, Esq. Jordan M. Steele, Esq. CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Telephone: (973) 994-1700 E-mail: jcecchi@carellabyrne.com cbartlett@carellabyrne.com jsteele@carellabyrne.com - and - Christopher A. Seeger, Esq. Christopher L. Ayers, Esq. SEEGER WEISS LLP 55 Challenger Road, 6 th Floor Ridgefield Park, NJ 07660 Telephone: (973) 639-9100 Facsimile: (973) 679-8656 E-mail: cseeger@seegerweiss.com cayers@seegerweiss.com - and - W. Daniel "Dee" Miles, III, Esq. H. Clay Barnett, III, Esq. J. Mitch Williams, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 272 Commerce Street Montgomery, AL 36104 Telephone: (334) 269-2343 E-mail: dee.miles@beasleyallen.com clay.barnett@beasleyallen.com mitch.williams@beasleyallen.com - and - Joseph H. Meltzer, Esq. Melissa L. Troutner, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7756 E-mail: jmeltzer@ktmc.com mtroutner@ktmc.com GEO GROUP: New Mexico Court Dismisses Power's Civil Rights Suit --------------------------------------------------------------- In the case, DONTE POWER, Plaintiff v. GEO GROUP, et al., Defendants, Case No. 20-cv-782 KG-CG (D.N.M.), Judge Kenneth J. Gonzales of the U.S. District Court for the District of New Mexico dismissed without prejudice the Plaintiff's Civil Rights Complaint. Background The matter is before the Court on the Plaintiff's Civil Rights Complaint. He is incarcerated, pro se, and proceeding in forma pauperis. The Plaintiff contends prison officials exposed him to unsafe chemicals during a painting project. The Plaintiff is an inmate at the Lea County Correctional Facility (LCCF). In 2016 or 2017, LCCF Warden Smith commissioned a project to grind surfaces and repaint portions of the facility. It does not appear the Plaintiff joined the maintenance crew, but he was nearby during the work. On April 16, 2017, the Plaintiff read the label of a paint bucket and "became aware of the exposure to toxins." He collected a sample of existing paint from a door and swept the hallway for dust samples. The following month, the Plaintiff spoke with Officer Vazquez, who oversees fire safety and sanitation at LCCF. Officer Vazquez allegedly offered to conduct a hazard communication training. He also agreed to provide N-95 respirators if further grinding was necessary. On May 5, 2017, three inmate maintenance workers used a "liquid stripper" on a door. The workers received N-95 respirator masks, but other inmates did not. The Plaintiff swept the area and collected more samples of the paint dust. On May 9, 2017, the Plaintiff filed the first of several grievances requesting Material Safety Data Sheets (MSDS) on the paint. He also asked prison officials to inform inmates and staff regarding the exposure to toxins. The grievance was denied, and the Plaintiff mailed the dust samples to his family on May 16, 2017. Throughout the rest of the summer, the Plaintiff shared OSHA materials with staff; filed additional grievances; collected more samples; and asked prison officials to stop the paint grinding project. His mother also emailed Warden Smith detailing his concerns after she obtained a MSDS from Sherwin Williams. Prison officials declined to conduct safety classes as promised, provide their own MSDS, or notify the general population about potential toxic exposures. A grievance officer stated LCCF used paints recommended by the facility architect. Prison Director German Franco stated there are "no known significant effects or critical hazards for inhalation" of the paint dust. On June 8, 2017, Warden Smith directed staff to search the Plaintiff's property and confiscate the dust samples. The next month, the Plaintiff convinced medical staff to order an x-ray of his lungs "to document their current condition." The Plaintiff informed nurses that he noticed unexplained fatigue and shortness of breath after minimal exercise. The nurses laughed but checked the Plaintiff's oxygen level, which was at 100%. Between August 2 and Aug. 4, 2017, maintenance workers removed the vent filters around the facility for cleaning. The grinding resumed on Aug. 4, 2017, when the workers removed rust and paint from the vents. The Plaintiff complained and "made workers quit grinding." He obtained a N-95 respirator mask the following day, on Aug. 5, 2017, and it appears the project resumed. Id. He again complained, which prompted a visit from Warden Smith. He requested proper safety training and asked Warden Smith to "inform everyone of the exposure." Id. Warden Smith declined both requests, and the Plaintiff continued to file grievances. It appears the Plaintiff is concerned about the inhalation of crystalline silica dust, lead, and calcium carbonate. Based on these facts, the Complaint raises claims under the Eighth Amendment and 42 U.S.C. Section 1983. The Plaintiff also asserts claims under the New Mexico Air Quality Control Act, N.M.S.A. Section 74-2-1, et. seq.; the state criminal statute defining public nuisance, N.M.S.A. Section 30-8-1; the Restatement of Torts; and the federal Clean Air Act, 42 U.S.C. Section 7401, et. seq. The Complaint names five Defendants: (1) GEO Group (GEO); (2) LCCF Warden Smith; (3) Officer Short; (4) Officer Vazquez; (5) Officer Soloman. The Complaint also names John Doe Defendants. The Plaintiff seeks unspecified damages and injunctive relief. He also appears to seek damages on behalf of the State of New Mexico and other inmates, alleging the Defendants "exposed 1,500 plus people" to harmful chemicals at LCCF. The Plaintiff obtained leave to proceed in forma pauperis, and the matter is ready for initial review. Discussion A. Class Claims As an initial matter, the Plaintiff appears to raise claims on behalf of the State and the entire LCCF population. The Complaint contains detailed allegations about the failure to conduct safety classes for inmates and staff. The Plaintiff repeatedly asked Warden Smith to "inform everyone of the exposure" and filed grievances based on the "failure to inform everyone about the safety violations." He also complains about grinding that took place in a housing pod on Aug. 6, 2017, even though he received a N-95 respirator mask the day before. To the extent the Plaintiff seeks to assert class claims, Judge Gonzales holds that such claims fail. He says, pro se plaintiffs cannot prosecute a class action lawsuit on behalf of other individuals. As the Tenth Circuit explained, "the competence of a layman is clearly too limited to allow him to risk the rights of others." Hence, any class action claims will be dismissed. The Judge will limit his review to the Plaintiff's individual claims. B. Federal Constitutional Claims The Complaint primarily asserts claims under 42 U.S.C. Section 1983 and the Eighth Amendment. "A cause of action under section 1983 requires the deprivation of a civil right by a `person' acting under color of state law." The plaintiff must allege that each government official, through the official's own individual actions, has personally violated the Constitution. There must also be a connection between the official conduct and the constitutional violation. Judge Gonzales opines that the Complaint here does not show the Plaintiff suffered substantial harm because of the painting/grinding project. He is also unable to conclude any Defendant was subjectively aware of a serious risk of hair The Complaint does not allege GEO, Officer Short, or Officer Soloman were personally involved in the alleged wrongdoing. As to Defendants Smith and Vazquez, the Judge cannot discern from the Complaint what risks the Plaintiff uncovered and what specific information he communicated to the Defendants. Hence, the Section 1983 claims will be dismissed for failure to state a cognizable claim. C. Remaining Claims Beyond Section 1983, the Complaint raises claims under the New Mexico Air Quality Control Act, N.M.S.A. Section 74-2-1, et. seq.; the state statute defining public nuisance, N.M.S.A. Section 30-8-1; the Restatement of Torts; and the federal Clean Air Act, 42 U.S.C. Section 7401, et. seq. Judge Gonzales opines that none of these citations afford relief. The New Mexico Air Quality Control Act contemplates the creation of environmental boards, which enforce air quality standards. The section addressing "Enforcement; compliance orders; and field citations" permits the State "secretary or director" to act. N.M.S.A. Section 74-2-12. The next section permits the State to assess civil penalties. Nothing in the statute creates a private right of action for enforcing air quality standards. The public nuisance statute, N.M.S.A. Section 30-8-1, is a criminal code. It is not relevant to the civil action. A citation to the Restatement of Torts is too general to state any specific claim. Accordingly, the claim under 42 U.S.C. Section 7604 fails. Having determined the Complaint fails to state any cognizable claim, the Judge will dismiss the pleading pursuant to 28 U.S.C. Section 1915(e). D. Leave to Amend The Tenth Circuit counsels that pro se litigants should be given a reasonable opportunity to "remedy defects potentially attributable to their ignorance of federal law." The Plaintiff may file an amended complaint within 30 days of entry of the Opinion. If he declines to timely file an amended complaint or files an amended complaint that fails to state a cognizable claim, the Judge will dismiss the case with prejudice and without further notice. Conclusion In light of the foregoing, Judge Gonzales dismissed without prejudice the Plaintiff's Civil Rights Complaint. The Plaintiff may file an amended complaint within 30 days of entry of the Order. A full-text copy of the Court's Aug. 20, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/npsez7dy from Leagle.com. GOHEALTH LLC: Baumann Sues Over Unsolicited Phone Calls ------------------------------------------------------- DARLENE BAUMANN, individually and on behalf of a class of all persons and entities similarly situated, Plaintiff v. GOHEALTH, LLC, and WAVERLY CONSULTIN GROUP INC., Defendants, Case No. 1:21-cv-04497 (N.D. Ill., August 24, 2021) is a class action complaint brought against the Defendants for their alleged violations of the Telephone Consumer Protection Act. According to the complaint, the Defendants have been placing numerous calls to the Plaintiff's telephone number (713) 817-XXXX, which was registered on the National Do Not Call Registry since December 2017. The Plaintiff rejected the first two calls on July 28, 2021 since she did not recognize the number, but answered the Defendants' third call on July 29, 2021 just to identify the party contacting her illegally. The Plaintiff asserts that she did not provide the Defendant her consent to receive such unsolicited calls, which have harmed her by invading her privacy. The Plaintiff brings this complaint on behalf of herself and all other similarly situated individuals, who have been harmed by the Defendants unsolicited calls, seeking an order enjoining the Defendants and/or their affiliates, agent, and/or other persons or entities acting on the Defendants' behalf from making autodialed calls, except for emergency purposes, to any cellular telephone number in the future. The Plaintiff also seeks damages and other relief as the Court deems necessary, just, and proper. GoHealth, LLC offers health insurance products and services to consumers. Waverly Consulting Group Inc. provides telemarketing services to customers, including GoHealth. [BN] The Plaintiff is represented by: Anthony I. Paronich, Esq. PARONICH LAW, P.C. 350 Lincoln St., Suite 2400 Hingham, MA 02043 Tel: (508) 221-1510 E-mail: anthony@paronichlaw.com HAWAI'I: Faces Pelekai Civil Rights Suit in Federal Court --------------------------------------------------------- A class action lawsuit has been filed against State of Hawaii. The case is captioned as Pelekai v. State of Hawaii, Case No. 1:21-cv-00343-DKW-RT (D. Haw., Aug. 13, 2021). The lawsuit is brought over Defendant's alleged civil rights violations. The case is assigned to the Hon. Judge Derrick K. Watson. The Defendants include State of Hawaii; David Y. Ige, in his official capacity as Governor of the State of Hawaii; City and County of Honolulu; Rick Blangiardi, in his official capacity as Mayor of the City and County of Honolulu; County of Maui; Michael P. Victorino, in his official capacity as Mayor of the County of Maui; Xavier Becerra, in his official capacity as United States Secretary of Health and Human Services; John and Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; and Other Doe Entities 1-10.[BN] Plaintiffs Kaimi K. Pelekai, Keith Daniel Michael, Minoru Nakagawa, Manahel Al-Hozai, Theresa McGregor, Frederick Newton, Booth, III, Tamayo Perry, Vincent Tripi, Jozlyn Harrington, Anthony Pangan, Clyde Holokai, and Joshua Dukes, on behalf of themselves and all other similarly situated persons, are represented by: Shawn A. Luiz, Esq. 841 Bishop Street, Suite 200 Honolulu, HI 96813 Telephone: (808) 538-0800 Facsimile: (808) 524-0010 E-mail: attorneyluiz@gmail.com - and - Kristin L. Coccaro, Esq. EMPIRE LAW, LLLC P.O. Box 880831 Pukalani, HI 96788 Telephone: (808) 633-8542 Facsimile: (808) 466-3622 E-mail: kristin.coccaro@co.maui.hi.us - and - Michael Jay Green, Esq. 841 Bishop Street, Suite 2201 Honolulu, Hi 96813 Telephone: (808) 521-3336 E-mail: michael@michaeljaygreen.com INSTITUTO ESPANOL: Faces Ward Class Suit Over Mislabeled Products ----------------------------------------------------------------- BOB WARD, individually and on behalf of all others similarly situated v. INSTITUTO ESPANOL, S.A., a Corporation doing business as AVENA INSTITUTO ESPANOL; MIDWAY IMPORTING, INC., a Corporation; and DOES 1-10, Case No. 2:21-cv-06584-CBM-PD (C.D. Cal.., Aug. 13, 2021) is class action suit brought on behalf of the Plaintiff and all California residents who purchased an aluminum-containing cosmetic and drug product that is improperly labeled as a "deodorant" roll-on. Mr. Ward is a resident of Santa Barbara County, State of California. He purchased a two-pack of Defendants' improperly labeled "deodorant" roll-on in Santa Maria, California, in both October and November 2019. He purchased the product with two understandings based on the product's label: that it was a deodorant, and would therefore not cause him irritation, and that it was natural, says the suit. Unfortunately, due to the alleged false representations set forth herein, neither understanding was correct, and Plaintiff did end up developing skin irritation after using the "deodorant." Despite this skin irritation, however, personal injury damages are not being pursued in this action, added the suit. Instituto Espanol is a cosmetic company based in Huelva, Spain. Avena manufactures and markets different types of beauty products including deodorants, lotions, and body oils. The instant action is brought to four of the "deodorants" that allegedly contain aluminum chlorohydrate, which are all marketed, manufactured, and sold by Avena throughout the United States and California, both online and in-store ("Misbranded Products"). Midway is a corporation based in Houston, Texas, that handles imports, marketing, and distribution, for a variety of Hispanic product brands. Midway promotes itself as a leading Hispanic Health & Beauty Care products distributor for Spanish companies like Avena to help retail their products throughout the United States. Midway's website reflects the specific products that it markets and distributes, which includes the Misbranded Products that are the subject of this lawsuit.[BN] The Plaintiff is represented by: Jeffrey A. Koncius, Esq. Stephanie M. Taft, Esq. KIESEL LAW LLP 8648 Wilshire Boulevard Beverly Hills, CA 90211-2910 Telephone: (310) 854-4444 Facsimile: (310) 854-0812 E-mail: koncius@kiesel.law taft@kiesel.law INVESTMENT RETRIEVERS: Robinson-Morris Files FDCPA Suit in D. Ariz. ------------------------------------------------------------------- A class action lawsuit has been filed against Investment Retrievers Incorporated, et al. The case is styled as Eugene Robinson-Morris, individually and on behalf of all others similarly situated v. Investment Retrievers Incorporated, Unknown Parties names as John Does 1-25, Case No. 2:21-cv-01491-MTL (D. Ariz., Aug. 31, 2021). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Investment Retrievers, Inc. -- https://www.investment-retrievers.com/ -- is a debt collection law firm located in Folsom, California.[BN] The Plaintiff is represented by: Raphael Deutsch, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Email: rdeutsch@steinsakslegal.com IYS ENTERPRISES: Calcano Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against IYS Enterprises Inc. The case is styled as Evelina Calcano, on behalf of herself and all other persons similarly situated v. IYS Enterprises Inc., Case No. 1:21-cv-07336 (S.D.N.Y., Aug. 31, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. IYS ENTERPRISES INC is in the Business Consulting Services, N.E.C. industry in Los Angeles, California.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: nyjg@aol.com michael@gottlieb.legal KONINKLIJKE PHILIPS: Kolodin Files Suit in N.D. Georgia ------------------------------------------------------- A class action lawsuit has been filed against Koninklijke Philips N.V., et al. The case is styled as Scott R. Kolodin, individually and on behalf of all others similarly situated v. Koninklijke Philips N.V., Philips North America LLC, Philips RS North America LLC, Case No. 1:21-cv-03621-SDG (N.D. Ga., Aug. 31, 2021). The nature of suit is stated as Personal Injury: Health Care/Pharmaceutical Personal Injury 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: Jeff P. Shiver, Esq. SHIVER HAMILTON, LLC - ATL 3340 Peachtree Rd., Suite 950 Atlanta, GA 30326 Phone: (404) 593-0020 Fax: (215) 592-4663 Email: Jeff@ShiverHamilton.com - and - Kyle G.A. Wallace, Esq. SHIVER HAMILTON, LLC 3490 Piedmont Road, Suite 640 Atlanta, GA 30305 Phone: (404) 593-0020 Fax: (888) 501-9536 Email: kwallace@shiverhamilton.com KONINKLIJKE PHILIPS: Norman Files Suit in S.D. Georgia ------------------------------------------------------ A class action lawsuit has been filed against Koninklijke Philips N.V., et al. The case is styled as James H. Norman, individually and on behalf of all others similarly situated v. Koninklijke Philips N.V., Philips North America LLC, Philips RS North America LLC, Case No. 1:21-cv-00131-JRH-BKE (S.D. Ga., Aug. 31, 2021). The nature of suit is stated as Contract Product Liability for Breach of Contract. 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: Kyle G.A. Wallace, Esq. SHIVER HAMILTON, LLC 3490 Piedmont Road, Suite 640 Atlanta, GA 30305 Phone: (404) 593-0020 Fax: (888) 501-9536 Email: kwallace@shiverhamilton.com LGBT NETWORK: Acon Seeks OT Pay for Youth Services Coordinators --------------------------------------------------------------- CAROLINA ACON, on behalf of themselves, FLSA Collective Plaintiffs, and the Class v. THE LGBT NETWORK, DAVID KILMNICK, and ROBERT VITELLI, Case No. 1:21-cv-04642 (E.D.N.Y., Aug. 18, 2021) seeks to recover unpaid overtime compensation, liquidated damages, and attorneys' fees and costs pursuant to the Fair Labor Standards Act and the New York Labor Law. The Plaintiff further alleges that they and others similarly situated were deprived of their statutory rights as a result of Defendants unlawful discrimination practices, pursuant to the New York State Human Rights Law, the New York City Human Rights Law and the Administrative Code of the City of New York. On February 12, 2019, the Defendants hired the Plaintiff to work as a Youth Services Coordinator in Defendants' "Q Center" office, which was located at 37-18 Northern Blvd, Suite 107, Long Island City, NY 11101. Throughout her employment as a Youth Services Coordinator, Defendants paid her $21.63 per hour for 40 hours of work per week. However, to meet the requirements of the position, Plaintiff typically had to work one additional hour per day, which resulted in approximately five overtime hours per week. She was not compensated for their overtime hours worked, the Plaintiff contends. The Defendants operate an association of non-profit organizations aimed at the LGBT community. Defendants maintain offices and hire employees throughout the State of New York, including multiple locations in Long Island and a location in Queens.[BN] The Plaintiff, FLSA Collective Plaintiffs and the Class are represented by: William Igbokwe, Esq. LAW OFFICE OF WILLIAM IGBOKWE 28 Liberty Street, 6th Floor New York, NY 10005 Telephone: (347) 467-4674 Facsimile: (347) 467-6367 LYFT INC: Court Denies Bid for Judgment on Pleadings in Malig Suit ------------------------------------------------------------------ In the case, MATIAS MALIG, AS TRUSTEE FOR THE MALIG FAMILY TRUST, Plaintiff v. LYFT, INC., et al., Defendants, Case No. 19-cv-02690-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the Northern District of California issued an order denying: a. the Defendants' motion for judgment on the pleadings; and b. the parties' associated administrative motions to file under seal. On April 16, 2021, Plaintiff Rick Keiner filed the operative consolidated complaint against Defendant Lyft, Logan Green, Co-Founder, CEO, and Director on Lyft's board of directors, John Zimmer, Co-Founder, President and Vice Chairman of the Board, Brian Roberts, CFO, Prashant (Sean) Aggarwal, Chairman of the Board, Board Members Ben Horowitz, Valerie Jarrett, David Lawee, Hiroshi Mikitani, Ann Miura-Ko, and Mary Agnes (Maggie) Wilderotter ("Individual Defendants," and collectively with Lyft, "Defendants"). Lyft is a rideshare company that "sought to revolutionize transportation by launching its peer-to-peer marketplace for on-demand ridesharing." It registered its issuance of common stock "under the Securities Act of 1933, as amended, pursuant to Lyft's registration statement on Form S-1 (File No. 333-229996) declared effective on March 28, 2019." Lyft offered 32.5 million shares to the public through an initial public offering ("IPO") at a price of $72 per share, generating total proceeds of $2.34 billion. According to the Plaintiff, Lyft made representations in the IPO Registration Statement and Prospectus filed in connection with the IPO that "were materially misleading, omitted information necessary in order to make the statements not misleading, and omitted material facts required to be stated therein." On May 14, 2020, the Defendants moved to dismiss the Plaintiff's consolidated amended class action complaint. On Sep. 8, 2020, the Court granted in part and denied in part the Defendants' motion. Following the hearing on the Plaintiff's motion for class certification, the Defendants moved for judgment on the pleadings as to a subset of the Plaintiff's sexual assault allegations. Analysis I. Requests for Judicial Notice The Defendants request that the Court take judicial notice of or consider incorporated by reference the following three documents: (i) Lyft's Form S-1 Registration Statement (Ex. 1); (ii) an April 9, 2019 San Francisco Chronicle news article titled Uber, Lyft safety in spotlight after student's slaying (Ex. 2); and (iii) a Jan. 5, 2017 Business Insider article titled Lyft tripled its rides in 2016 (Ex. 3). The Plaintiff generally argues that the Defendants' requests are improper, but raises a specific objection only as to Exhibit 3. The Court previously found Exhibit 1 incorporated by reference because it formed the basis of the Plaintiff's claim. For the same reason, Judge Gilliam grants the motion as to Exhibit 1 and will again consider Lyft's Form S-1 Registration Statement for the purpose of determining what was disclosed to the market. As to Exhibit 3, the Judge agrees with the Plaintiff that the Defendants offer it for the truth of its contents. The Defendants argue that the Business Insider article is "relevant to the amount of sexual assaults that occurred on the platform as compared to overall rides." The Judge, thus, denies the motion as to Exhibit 3. The Defendants' briefing otherwise discusses matters outside of the pleadings, such as the Plaintiff's discovery responses. The Defendants contend that they attach such documents "for the purpose of giving the Court sufficient context to understand why Defendants are raising this issue at this juncture." In opposing the motion, the Plaintiff also references evidence obtained through discovery, as well as emails between counsel. Notwithstanding these tactics, the parties appear to understand that the Court is limited to the pleadings and matters properly incorporated by reference or subject to judicial notice. The parties' extensive references to extraneous matters underscore the essential purposelessness of another pleadings motion seven months after the Court ruled that the Plaintiffs' surviving claims implicate disputed factual issues. II. Administrative Motions to Seal Because the motion for judgment on the pleadings is more than tangentially related to the underlying action, Judge Gilliam applies the "compelling reasons" standard in evaluating the motions to seal. The Plaintiff moves to seal the portions of opposition and Declaration of Jeffrey C. Block Declaration that reference the parties' joint letter brief and a related exhibit filed at docket number 157. The Defendants also seek to seal portions of their reply referencing the joint letter brief. Judge Gilliam reiterates that he will not consider the parties' references to the parties' joint letter brief or associated exhibits in its analysis. But in resolving the motions to seal, he finds that neither party has complied with Civil Local Rule 79-5(b), which requires that the "request must be narrowly tailored to seek sealing only of sealable material." The proposed redactions describe statistical information at a general level without any specific disclosure of Lyft users' reports or personal information. Even assuming that the specific statistics could be sealable (which the Court does not now decide), the parties' proposed redactions remain overbroad. Accordingly, he denies the motions to seal. III. Motion for Judgment on Pleadings The Defendants contend that they are entitled to judgment on the pleadings on the Plaintiff's "sexual assault claim" as it relates to the magnitude and trend of sexual assault allegations. According to the Defendants, the Plaintiff's counsel revised the Plaintiff's omission theory for the first time "in his class certification papers" and during the hearing on the Plaintiff's motion for class certification. The Plaintiff contends that neither his theory nor the pleadings that the Court has already found adequate have changed. Judge Gilliam agrees. He says, the Defendants correctly note that the Plaintiff alleges that Lyft's registration statement made no reference to sexual assault, but as the complaint indicates, that is not the Plaintiff's entire theory. A review of the parties' briefing on the Defendants' motion to dismiss also shows that the Plaintiff raises no new theory. Contrary to the Defendants' characterization, the Judge did not merely "notes" the Plaintiff's related allegations about the magnitude and trend of sexual assaults. In opposing the motion to dismiss, the Plaintiff addressed the arguments the Defendants now raise again. Yet the Defendants again argue that the Plaintiff "has not established any fact or trend warranting disclosure in Lyft's Registration Statement." The Defendants have presented no basis for the Court to reconsider its prior ruling. Judge Gilliam reiterates that the resolution of disputed factual questions regarding materiality is not appropriate at this stage of the litigation. Accordingly, he denies the Defendants' motion for judgment on the pleadings. Conclusion Judge Gilliam denies the Defendants' motion for judgment on the pleadings, and denied the administrative motions to seal. He directs the parties to file public versions of all documents for which the proposed sealing has been denied within seven days of the Order. The parties may also file a new motion to seal that comports with the requirements discussed above within seven days of the Order. Additionally, any proposed order or responsive declaration must include in the table for each item sought to be sealed: (1) the docket numbers of the public and provisionally sealed versions of documents sought to be filed under seal; (2) the name of the document; (3) the specific portion(s) of the document sought to be filed under seal; and (4) the filer's reasons for seeking sealing of the material, along with citations to the relevant declarations and any supporting legal authority. The reasons provided must be specific and tailored to the portion(s) of the document sought to be sealed. A full-text copy of the Court's Aug. 20, 2021 Order is available at https://tinyurl.com/nxtj4zp2 from Leagle.com. MAGM ENTERPRISES: Fails to Pay Overtime Wages, O'Neill Claims ------------------------------------------------------------- ERIKA O'NEILL, individually and on behalf of others similarly situated, Plaintiff v. MAGM ENTERPRISES INC. and ALISSA TORRES, Defendants, Case No. 610869/2021 (N.Y. Sup. Ct., August 24, 2021) brings this class action complaint against the Defendants to recover unpaid overtime compensation pursuant to the New York Labor Law. The Plaintiff was employed by the Defendant as a non-exempt worker from May 2016 through June 2019. The Plaintiff claims that despite regularly working more than 40 hours in a given workweek, the Defendant did not pay her and other similarly situated non-exempt employees their lawfully earned overtime compensation at the rate of one and one-half times their regular rates of pay for all hours worked in excess of 40 per week. Instead, they were paid at a flat hourly rate for all hours of work performed regardless of the number of hours they have worked. MAGM Enterprises Inc. operates an entertainment business. Alissa Torres is the manager, president and/or owner of CYE. [BN] The Plaintiff is represented by: Brett R. Colen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Tel: (516) 873-9550 MARCUS LEMONIS: Faces Sirota FTSA Suit Over Telephonic Sales Calls ------------------------------------------------------------------ BRANDON SIROTA, individually and on behalf of all, others similarly situated, v. MARCUS LEMONIS, LLC, Case No. CACE-21-015771 (Fla. Cir., Broward Cty., Aug. 13, 2021) is a class action under the Florida Telephone Solicitation Act. The Plaintiff contends that the Defendant's telephonic sales calls have caused him and the Class members harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy. Through this action, he seeks an injunction and statutory damages on behalf of himself and the Class members, and any other available legal or equitable remedies resulting from the unlawful actions of Defendant. On June 2, 2021 and June 8, 2021, the Defendant sent telephonic sales calls to Plaintiffs cellular telephone number. The Defendant caused similar telephonic sales calls to be sent to individuals residing in Florida, the lawsuit says. The Plaintiff brings this lawsuit as a class action on behalf of himself individually and on behalf of all other similarly situated persons as a class action pursuant to Florida Rule of Civil Procedure 1.220(b)(2) and (b)(3). The "Class" that Plaintiff seeks to represent is defined as: "All persons in Florida who, (1) were sent a telephonic sales call regarding Defendant's goods and/or services, (2) using the same equipment or type of equipment utilized to call Plaintiff." The Defendant and its employees or agents are excluded from the Class.[BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 E-mail: mhiraldo@hiraldolaw.com Telephone: (954) 400-4713 MASSACHUSETTS: Class of Prisoners Certified in Briggs v. Mass. DOC ------------------------------------------------------------------ In the case, LEONARD BRIGGS, GEORGE SKINDER, LOUIS MARKHAM, FRANCIS McGOWAN, ERIC ROLDAN, ROLANDO S. JIMENEZ, AND JENNIFER WARD, on behalf of themselves and all others similarly situated, Plaintiffs v. MASSACHUSETTS DEPARTMENT OF CORRECTION; CAROL A. MICI, Commissioner of the Massachusetts Department of Correction; JENNIFER GAFFNEY, Deputy Commissioner of Classification, Programs, and Reentry Division; SUZANNE THIBAULT, Superintendent of MCI-Shirley; STEVEN SILVA, Superintendent of MCI-Norfolk; LISA MITCHELL, Superintendent of the Massachusetts Treatment Center; KYLE PELLETIER, Acting Superintendent of MCI-Framingham; and MASSACHUSETTS PARTNERSHIP FOR CORRECTIONAL HEALTHCARE, LLC, Defendants, Civil Action No. 15-40162-GAO (D. Mass.), Judge George A. O'Toole, Jr., of the U.S. District Court for the District of Massachusetts entered an Order: a. granting nunc pro tunc the Plaintiffs' Motion for Leave to File Reply in Support of Plaintiff's Motion to Strike Portions of Massachusetts Department of Correction Defendants' Affidavit of Jeffrey; b. denying the Verified Motion of Class-Action Member Emory G. Snell Jr., Requesting Show Cause for Contempt of Settlement Agreement and the Motion for Injunctive Relief to Close MASAC Center by Eric Kelly; c. granting the Plaintiffs' Assented-to Motion for Class Certification; and d. granting the Joint Motion to Amend Settlement Agreement. The Plaintiffs move for certification of a class consisting of: "All individuals who are currently in Massachusetts Department of Correction ("DOC") custody or in the future are placed in DOC custody, and who are currently or in the future become deaf or hard-of-hearing." They seek certification utilizing the same class definition the Court already approved for purposes of the Settlement Agreement for the remaining claims that concern DOC's emergency notification systems. The remaining claims present a common central question of whether the DOC through its conduct and practice, fails to provide effective notification of facility emergency alarms and announcements to deaf and hard-of-hearing prisoners. Judge O'Toole finds that the prerequisites of numerosity, commonality, typicality, and adequacy are all satisfied. He also finds that the Plaintiffs have satisfied the requirements of Rule 23(b)(2) by demonstrating that a single remedy could provide relief to all the class members. Accordingly, the Plaintiffs' Assented-to Motion for Class Certification is granted. Judge O'Toole certified the following class: All individuals who are currently in Massachusetts Department of Correction (DOC) custody or in the future are placed in DOC custody, and who are currently or in the future become deaf or hard-of-hearing. He appointed, as requested, the movants' counsel, James R. Pingeon of Prisoners' Legal Services, Tatum A. Pritchard of Disability Law Center, Inc., Lisa J. Pirozollo of Wilmer Cutler Pickering Hale and Dorr LLP, and Emily Gunston of Washington Lawyers' Committee for Civil Rights and Urban Affairs as the class counsel under Fed. R. Civ. P. 23(g). The Joint Motion to Amend Settlement Agreement is granted. Thus Section XX.H of the Settlement concerning the Term of Agreement is thus amended to state as follows: "The term of this Agreement will commence upon the date of Final Approval by this Court and will extend for four (4) years from said date of Final Approval. The Court's jurisdiction will terminate at the end of the four (4) year settlement period with respect to any provision or provisions of this Agreement for which there is no outstanding determination, or pending claim, that DOC is not in substantial compliance, i.e., is in substantial non-compliance. If the Court determines that there has been substantial non-compliance by DOC with a provision or provisions of this Agreement at any time during the four (4) year period of this Agreement, the Court's jurisdiction with respect to such provision or provisions relating thereto will continue for the remainder of the four (4) year period or for an additional period to be ordered by the Court of not more than two (2) years from the date of the Court's finding that DOC is not in substantial compliance. Subject to the provisions set forth in this section and in Section XVI (Dispute Resolution and Enforcement), this Agreement will expire at the end of four (4) years from the date of Final Approval by the Court and the Action will then be dismissed with prejudice. However, DOC will continue to provide all accommodations required under law, including under the U.S. Constitution, the ADA, Section 504 of the Rehabilitation Act, and Massachusetts law, along with any other applicable federal and state laws, regardless of any term limit applicable to this Agreement." The Settlement Agreement's presumptive settlement period is extended an additional one year to Nov. 25, 2023. A full-text copy of the Court's Aug. 20, 2021 Order is available at https://tinyurl.com/35k3smrj from Leagle.com. NATIONSTAR MORTGAGE: Rakestraw Appeals Judgment in RESPA Suit ------------------------------------------------------------- Plaintiff Paulette Rakestraw filed an appeal from a court ruling entered in the lawsuit styled PAULETTE E. RAKESTRAW, individually and on behalf of all others similarly situated, Plaintiff v. NATIONSTAR MORTGAGE, LLC, Defendants, Case No. 1:18-cv-03144-ELR, in the U.S. District Court for the Northern District of Georgia. As previously reported in the Class Action Reporter, the lawsuit alleges violation of the Real Estate Settlement Practices Act. Ms. Rakestraw is the maker of a promissory note and the grantor of a security deed dated April 1, 2004, for a loan on her home at 391 Quail Ridge Rd., Hiram, Georgia 30141. The lender for this loan was American Mortgage Network, Inc. This loan is a federally related mortgage loan, says the suit. Ms. Rakestraw sent Qualified Written Requests to Nationstar on or about November 28, 2017, January 1, 2018, and May 4, 2018, which asked for a: "1) Complete payment history that includes an explanation and breakdown of all charges and credits applied during the life of the loan, dating back to 2003 [sic], the origination of the loan." Nationstar failed to provide this information most notably by not providing account information for most of the years before it became the servicer. Nationstar also failed to provide explanations for some of the charges or credits it did list; instead characterizing some items only as: "CORP ADVANCE ADJUST," "NON CASH FEE ADJ," "CORP ADV DISP," "DecCorp Adv Deferred I," "PMT-MISC SUSP," and "MISC ADJ." Allegedly, Nationstar's incomplete and incomprehensible responses are potentially damaging to Ms. Rakestraw because she has paid for charges that it refused to explain to her, and which she may not owe. The Plaintiff now seeks a review of the Order and Judgment dated July 29, 2021 wherein the Court overruled Plaintiff's Objections and adopted the Report and Recommendation (R&R) as the opinion of the Court. For the reasons stated in the R&R, the Court granted in part and denied in part Defendant's Motion for Summary Judgment and Motion to Strike. Specifically, the Court granted Defendant's motion for summary judgment and directed the Clerk to enter judgment in favor of Defendant. However, the Court denied as moot Defendant's motion to strike. Finally, the Court directed the Clerk to close the case. The appellate case is captioned as Paulette Rakestraw v. Nationstar Mortgage, LLC, Case No. 21-12850, in the United States Court of Appeals for the Eleventh Circuit, filed on August 16, 2021. The briefing schedule in the Appellate Case states that: -- Appellant's Certificate of Interested Persons was due August 30, 2021 as to Appellant Paulette E. Rakestraw; and -- Appellee's Certificate of Interested Persons is due on or before September 13, 2021 as to Appellee Nationstar Mortgage, LLC.[BN] Plaintiff-Appellant PAULETTE E. RAKESTRAW, on behalf of herself and all persons similarly situated, is represented by: Wayne Charles, Esq. WAYNE CHARLES, PC 395 Highgrove Dr Fayetteville, GA 30215 Telephone: (770) 241-8936 E-mail: wc115@bellsouth.net Defendant-Appellee NATIONSTAR MORTGAGE, LLC is represented by: Jarrod Sean Mendel, Esq. Allison Giardina Rhadans, Esq. MCGUIREWOODS, LLP 1230 Peachtree St. NE Suite 2100 Atlanta, GA 30309 Telephone: (404) 443-5713 E-mail: jmendel@mcguirewoods.com - and - Robert A. Muckenfuss, Esq. MCGUIRE WOODS, LLP 201 N Tryon St. Suite 3000 Charlotte, NC 28202 Telephone: (704) 373-8999 - and - Elizabeth Zwickert Timmermans, Esq. MCGUIRE WOODS, LLP 501 Fayetteville St. Raleigh, NC 27609 Telephone: (919) 755-6576 NATIONSTAR MORTGAGE: Yost Suit Removed to N.D. West Virginia ------------------------------------------------------------ The case styled as Joseph Yost, individually and on behalf of all those similarly situated v. Mr. Cooper doing business as: Nationstar Mortgage, LLC; Federal National Mortgage Association, Case No. CC-02-02021-C-214 was removed from the Circuit Court of Berkeley County, West Virginia to the Northern District of West Virginia on August 31, 2021. The District Court Clerk assigned Case No. 3:21-cv-00143-GMG to the proceeding. The nature of suit is stated as Other Contract. Mr. Cooper -- https://www.mrcooper.com/ -- offers mortgage services.[BN] The Plaintiff is represented by: Stephen G. Skinner, Esq. SKINNER LAW FIRM PO Box 487 Charles Town, WV 25414 Phone: (304) 725-7029 Fax: (304) 725-4082 Email: sskinner@skinnerfirm.com The Defendant is represented by: Dennis Kyle Deak, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 305 Church at North Hills Street, Suite 1200 Raleigh, NC 27609 Phone: (919) 835-4133 Fax: (919) 829-8725 Email: kyle.deak@troutman.com - and - Massie P. Cooper, Esq. TROUTMAN SANDERS LLP 1001 Haxall Point Richmond, VA 23219 Phone: (804) 697-1392 Fax: (804) 697-1339 Email: massie.cooper@troutman.com NCAA: Weldon Suit Transferred to N.D. Illinois ---------------------------------------------- The case styled as Joshua Weldon, Rashawn Underdue, individually and on behalf of all others similarly situated v. National Collegiate Athletic Association, Case No. 1:21-cv-02101, was transferred from the U.S. District Court for the Southern District of Indiana to the U.S. District Court for the Northern District of Illinois on Aug. 30, 2021. The District Court Clerk assigned Case No. 1:21-cv-04560 to the proceeding. The nature of suit is stated as Other P.I. for Personal Injury. The National Collegiate Athletic Association -- https://www.ncaa.org/ -- is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA, LLP 2402 Dunlavy Street Houston, TX 77006 Phone: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NEVADA: Court Denies Bid to Certify Class in Prentice Suit v. NDOC ------------------------------------------------------------------ In the case, ANTHONY PRENTICE, Plaintiff v. CHARLES DANIELS, et al., Defendants, Case No. 2:21-cv-00369-JAD-VCF (D. Nev.), Judge Jennifer A. Dorsey of the U.S. District Court for the District of Nevada entered an Order: a. granting the Plaintiff's application to proceed in forma pauperis; b. denying the motion for appointment of counsel, the motion for class certification, and the motion to intervene; and c. directing response to motion for injunctive relief. Defendant Charles Daniels is the Director of the Nevada Department of Corrections (NDOC). On May 10, 2021, Judge Dorsey deferred her decision on Prentice's application to proceed in forma pauperis, referred the case to the Court's Inmate Early Mediation Program, and ordered the Attorney General's Office to advise the Court whether it would enter a limited notice of appearance on behalf of the Defendants for the purposes of settlement. The Office of the Attorney General filed a notice stating that it did not intend to enter a limited notice of appearance for purposes of settlement as Defendant Daniels did not believe that settlement negotiations would be productive or appropriate at this time. Prentice's case therefore will return to the normal litigation track. Like many prisoners who file civil-rights claims, Prentice asks the Court to find and appoint a free lawyer. Judge Dorsey explains that a litigant does not have a constitutional right to appointed counsel in 42 U.S.C. Section 1983 civil-rights claims. However, the Court will appoint counsel for indigent civil litigants only in "exceptional circumstances." "When determining whether 'exceptional circumstances' exist, the Court must consider 'the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." "Neither of these considerations is dispositive and instead must be viewed together." Judge Dorsey does not find exceptional circumstances in the case. Although she is permitting some of Prentice's claims to proceed, that decision is based on allegations, not evidence, and it would be premature for her to determine any likelihood of success. His claims are not complex, and Prentice is able to articulate them. The Judge, therefore, denies the motion to appoint counsel. Mr. Prentice also moves to have the case certified as a class action. Judge Dorsey holds that Prentice is not an attorney. Although pro se litigants have the right to plead and conduct their own cases personally, the law does not permit them to represent anyone other than themselves. Prentice therefore may not act as an attorney on behalf of any class by filing pleadings and otherwise litigating on behalf of the class. So the Judge denies his motion. Erik Watson has brought a motion to intervene in the case as a class representative. As the case is not a class action and will not be certified as one, Watson's motion to intervene is denied. Finally, Prentice moves for a temporary restraining order and preliminary injunction to require officials to provide him with outdoor exercise. Given the nature of his allegations and because a claim regarding outdoor exercise has survived screening, Judge Dorsey directs the Attorney General's Office to respond to that motion by Sept. 10, 2021. For these reasons, Judge Dorsey granted Prentice's application to proceed in forma pauperis. The Plaintiff need not pay an initial installment fee, prepay fees or costs or provide security for fees or costs, but he is still required to pay the full $350 filing fee under 28 U.S.C. Section 1915, as amended. This full filing fee will remain due and owing even if this case is dismissed or otherwise unsuccessful. In order to ensure that the Plaintiff pays the full filing fee, Judge Dorsey that the Nevada Department of Corrections must pay to the Clerk of the United States District Court, District of Nevada, 20% of the preceding month's deposits to the account of Anthony Prentice, # 74880 (in months that the account exceeds $10) until the full $350 filing fee has been paid for the action. The Clerk is directed to send a copy of the Order to (1) the Finance Division of the Clerk's Office and (2) the Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702. Service must be perfected within 90 days from the date of the Order. Subject to the findings in the screening order, the Attorney General's Office must file a notice advising the Court and the Plaintiff of: (a) the names of the Defendants for whom it accepts service; (b) the names of the Defendants for whom it does not accept service, and (c) the names of the Defendants for whom it is filing the last-known-address information under seal within 21 days of the Order. For any of the named Defendant for whom the Attorney General's Office cannot accept service, the Office must file, under seal (but not serve on the inmate-plaintiff) the last known address of that defendant for whom it has such information. If that address is a post office box, the Attorney General's Office must attempt to obtain and provide the last known physical address instead. If the Attorney General accepts service of process for any named Defendant, that the Defendant must file and serve an answer or other response to the first amended complaint within 60 days of the Order. If service cannot be accepted for any of the named Defendant, the Plaintiff must file a motion identifying the unserved Defendant, requesting issuance of a summons, and specifying a full name and address for that the Defendant. For any Defendant for whom the Attorney General has not provided last-known-address information, the Plaintiff must provide the full name and address for that Defendant. The Plaintiff must serve upon the Defendants or, if an appearance has been entered by counsel, upon any Defendant's attorney, a copy of every pleading, motion or other document submitted for consideration by the Court. The Plaintiff must include with the original document submitted for filing a certificate stating the date that a true and correct copy of the document was mailed or electronically filed to the Defendants or the counsel for the Defendants. If the counsel has entered a notice of appearance, the Plaintiff must direct service to the individual attorney named in the notice of appearance, at the physical or electronic address stated therein. The Court may disregard any document received by a district judge or magistrate judge that has not been filed with the Clerk, and any document received by a district judge, magistrate judge, or the Clerk that fails to include a certificate showing proper service. The motion for appointment of counsel, the motion for class certification, and the motion to intervene are denied. The Clerk of the Court is directed to electronically serve a copy of the Order and a copy of Prentice's complaint and his motion for a temporary restraining order and preliminary injunction on the Office of the Attorney General of the State of Nevada, by adding the Attorney General of the State of Nevada to the docket sheet. This does not indicate acceptance of service. The Attorney General's Office has until Sept. 10, 2021, to file a response to the motion for a preliminary injunction and temporary restraining order on behalf of any Defendant. If the Plaintiff chooses to reply, he must do so within seven days after the Defendants file their response. The case is no longer stayed and will return to the normal litigation track. A full-text copy of the Court's Aug. 20, 2021 Order is available at https://tinyurl.com/9c7vx3md from Leagle.com. NORTHERN MICHIGAN: Simmons Files Appeal in Michigan Ct. of Appeals ------------------------------------------------------------------ A class action lawsuit has been filed against Board of Trustees of Northern Michigan University. The case is captioned as MARY SIMMONS vs. BOARD OF TRUSTEES OF NORTHERN MICHIGAN UNIVERSITY, Case No. 358204 (Mich. App., Aug. 17, 2021). Northern Michigan University's eight-member governing board, the Board of Trustees, is appointed by Michigan's governor.[BN] Plaintiff-Appellant Mary Simmons, and all others similarly situated is represented, by: David E. Fink, Esq. LAW OFFICE OF DAVID E. FINK One North Charles Street Suite 350, Blaustein Building Baltimore, MD 21201 Telephone: (410) 547-0480 E-mail: davidefink@yahoo.com Defendant-Appellee Board of Trustees of Northern Michigan University is represented by: James E. Spurr, Esq. LAW OFFICRE OF JAMES E. SPURR Telephone: (269) 383-5809 Facsimile: (269) 381-7030 NORTHERN NATURAL GAS: De Leon FLSA Suit Transferred to W.D. Texas ----------------------------------------------------------------- The case styled as Jessie De Leon, individually and on behalf of all others similarly situated v. Northern Natural Gas Co., Defendant; Gas Gathering Specialist Inc., Intervenor Defendant; Triple R Pipeline, Movant; Case No. 3:21-mc-00034, was transferred from the U.S. District Court for the Western District of Louisiana to the U.S. District Court for the Western District of Texas on August 31, 2021. The District Court Clerk assigned Case No. 7:21-mc-00150 to the proceeding. The lawsuit is brought over alleged violation of the Fair Labor Standards Act. Northern Natural Gas -- https://www.northernnaturalgas.com/Pages/default.aspx -- is a natural gas pipeline which brings gas from the Permian Basin in Texas to the Chicago area, Wisconsin, Minnesota and the Upper Peninsula of Michigan.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Richard M. Schreiber, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Phone: 713-352-1100 Facsimile: 713-352-3300 Email: mjosephson@mybackwages.com rschreiber@mybackwages.com The Defendant is represented by: Barbara M. Barron, Esq. BARRON & BEWBURGER, P.C. 7320 MoPac Expy N., Suite 400 Austin, TX 78731 Phone: (512) 476-9103 Fax: (512) 476-9253 Email: bbarron@bn-lawyers.com The Intervenor Defendant is represented by: Mark J. Levine, Esq. WEYCER JAPLAN PULASKI & ZUBER, PC 24 Greenway Plaza, Suite 2050 Houston, TX 77046 Phone: (713) 961-9045 Fax: (713) 961-5341 Email: mlevine@wkpz.com The Movant is represented by: George Adam Cossey, Esq. HUDSIN POTTS & BERSTEIN 1800 Hudson Ln Ste 300 Monroe, LA 71201 Phone: (318) 388-4400 Fax: (318) 322-4194 NURTURE INC: Faces Spencer Product Liability Suit in S.D.N.Y. ------------------------------------------------------------- A class action lawsuit has been filed against Nurture, Inc. The case is captioned as Erin Spencer v. Nurture, Inc., Case No. 1:21-cv-06861-MKV (S.D.N.Y., Aug. 13, 2021). The lawsuit arises from issues related to contract product liability. The case is assigned to the Hon. Judge Mary Kay Vyskocil. The interested parties includes Shannon Fitzgerald, Nicole Stewartm, and Summer Apicella.[BN] The Plaintiff is represented by: Karen Nadine Wilson, Esq. WILSON & BROWN, PLLC 629 Fifth Avenue Pelham, NY 10803 Telephone: (646) 498-9816 Facsimile: (718) 425-0573 E-mail: karen@wilsonbrownlawyers.com NUTMEG STATE: Archibald Sues Over Wrongful Withdrawal of Funds -------------------------------------------------------------- MALCOLM ARCHIBALD, Individually and on behalf of all others similarly situated v. NUTMEG STATE FINANCIAL CREDIT UNION, and DOES 1 Through 100, Case No. 3:21-cv-01104-JAM (D. Conn., Aug. 16, 2021) alleges that Defendant wrongfully and without authorization, unilaterally and without warning, withdrew money from Plaintiff's and the Class Members' checking accounts when it was not authorized by contract, law, or equity to do so. The Plaintiff contends that the Defendant falsely claimed that the funds it unilaterally took from Plaintiff's Account were properly assessed Non-Sufficient Funds ("NSF") fees (a fee for a transaction item that was returned unpaid) or overdraft fees (a fee for a transaction item that was advanced and paid by Defendant on behalf of Plaintiff). However, Defendant was only authorized to assess one fee per transaction item and instead assessed multiple NSF fees for the same item in violation of its contracts and disclosures, the Plaintiff adds. This class action seeks monetary damages, restitution, and injunctive relief due to, inter alia, Defendant's policy and practice of unlawfully assessing and unilaterally collecting overdraft and NSF fees in violation of its contract(s) with Plaintiff and the class, statutes and/or regulations, and equities. Mr. Archibald is a resident of East Windsor, Connecticut, and a customer of Defendant at all relevant times. Nutmeg is a state-chartered credit union headquartered in Rocky Hill, Connecticut.[BN] The Plaintiff is represented by: Richard E. Hayber, Esq. HAYBER, MCKENNA & DINSMORE, LLC 750 Main Street, Suite 904 Hartford, CT 06106 Telephone: (860) 522-8888 Facsimile: (860) 218-9555 E-mail: rhayber@hayberlawfirm.com - and - Elaine S. Kusel, Esq. Sherief Morsy, Esq. Richard D. McCune, Esq. MCCUNE WRIGHT AREVALO, LLP One Gateway Center, Suite 2600 Newark, NJ 07102 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 E-mail: esk@mccunewright.com sm@mccunewright.com rdm@mccunewright.com PERRIGO CO: Bid to Reconsider Judgment in Securities Suit Denied ---------------------------------------------------------------- In the case, IN RE PERRIGO COMPANY PLC SECURITIES LITIGATION, Case No. 19cv70 (DLC) (S.D.N.Y.), Judge Denise Cote of the U.S. District Court for the Southern District of New York denied the Defendants' July 26, 2021 motion for reconsideration. Investors in Perrigo bring the class action for securities fraud. They assert that Perrigo was required to disclose in its Nov. 8, 2018 Form 10-Q that the taxing authority in Ireland), in an Audit Findings Letter of Oct. 30, 2018, took the position that Perrigo owed approximately $1.9 billion in taxes. According to Irish Revenue, Perrigo had failed in 2013 to apply a "capital treatment" to certain proceeds of a corporate transaction. An Opinion of July 11, 2021 excluded Perrigo's accounting expert from testifying at the trial scheduled for this Fall because he argued that Accounting Standards Codification ("ASC") 740 and not 450 provided the relevant accounting standard for the disclosure in the Form 10-Q (In re Perrigo Company PLC Securities Litigation, No. 19CV70 (DLC), 2021 WL 2935027 (S.D.N.Y. July 11, 2021) ("Daubert Opinion")). An Opinion of July 15 granted summary judgment to the Plaintiffs on two of the issues in the securities fraud case: falsity and materiality (In re Perrigo Company PLC Securities Litigation, No. 19CV70 (DLC), 2021 WL 3005657 (S.D.N.Y. July 15, 2021) ("Summary Judgment Opinion")). On July 26, the Defendants moved for partial reconsideration. The motion became fully submitted on August 16. The Defendants seek reconsideration of the grant of summary judgment as to falsity. They also seek reinstatement of Perrigo's expert as a witness at trial, including for testimony regarding the correct application of ASC 450. The Defendants principally argue that the Summary Judgment and Daubert Opinions erred in concluding that ASC 450 and not ASC 740 applies here. They have not satisfied the standard for a motion for reconsideration. They largely rely on a misconstruction of the two rulings or repeat arguments that have already been presented and rejected. Notably, they fail to address the full set of reasons in the two Opinions given in support of the determination that ASC 450 provides the relevant standard. The Defendants emphasize that the Daubert Opinion explained that ASC 450 is a topic within that section of the ASC devoted to Liabilities. They argue that guidance from the Financial Accounting Standards Board explains that the location of a particular ASC within the larger framework cannot be used to exclude application of an otherwise applicable standard. Judge Cote opines that the Defendants' argument misconstrues the Daubert Opinion. The Opinion did not conclude either that ASC 450 applied or ASC 740 did not apply simply because of its location within the ASC framework. Those descriptions of the framework were simply part of a larger discussion of the substance of each standard. The substance of each standard, applied to the context in which the Form 10-Q was issued, drove the rulings. To the extent that the Defendants point out errors in the Opinions' analysis (e.g., misconstruction of accounting firm guidance and confusion of a tax on capital with income taxed at a capital gains rate; failure to acknowledge that ASC 740 applies as well to previously filed tax returns), the purported errors exist at the margin of the analysis. The core analysis contained in the Opinions remains valid. Once the Audit Findings Letter was issued, Perrigo's disclosure of its contingent liability was governed by the standards set out in ASC 450. The exception within ASC 450 for "uncertainty in income taxes" does not apply to the disclosure of contingent liabilities and does not direct a disclosing party to ASC 740. Thus, Judge Cote holds that the Defendants have not succeeded in showing that ASC 740 rather than ASC 450 governed Perrigo's disclosure obligations in the Form 10-Q. The Defendants next request that the Court reconsiders the grant of summary judgment on the issue of falsity. The Summary Judgment Opinion found that "the Defendants did not argue that the disclosure in the November 2018 Form 10-Q complied with ASC 450." Instead, as the Opinion notes, the Defendants argued in opposition to the Plaintiffs' motion for summary judgment that ASC 450 did not govern their disclosure requirements. Since there is no basis to revisit the ruling that ASC 450 is the governing standard, the grant of summary judgment on the issue of falsity will not be revisited. In moving for reconsideration, the Defendants do not point to any portion of their brief in opposition to the Plaintiffs' motion for summary judgment that the Summary Judgment Opinion overlooked. Nor do they assert that the statement in that Opinion which is cited above was in error. Instead, they ask the Court to look to three different documents. They ask the Court to consider those portions of their expert's report that discusses ASC 450 and certain testimony from Jay Preston that the defendants cited in support of their own motion for summary judgment. A motion for reconsideration is not an opportunity for a second bite at the apple. If either of these documents raised a question of fact regarding Perrigo's compliance with ASC 450 then Perrigo was obligated to point to those materials when it opposed the Plaintiffs' motion for summary judgment. Having failed to do so, they may not now rely on them, Judge Cote holds. As a third item, the Defendants point out that on July 13 it publicly disclosed that Irish Revenue had reduced its tax assessment by over $700 million. ASC 450 required Perrigo to disclose "an estimate of the possible loss or range of loss or a statement that such an estimate cannot be made." Judge Cote opines that the fact that Irish Revenue may today seek a different amount of money from Perrigo, does not govern Perrigo's disclosure obligations in 2018. Nor does it alter the fact that the Audit Findings Letter gave Perrigo a basis to provide an estimate of its "possible" loss, she says. Therefore, any recent determination by Irish Revenue to seek only about $1 billion but not $1.9 billion in unpaid taxes does not provide a basis to revisit the summary judgment ruling regarding falsity. Finally, Perrigo asks that its expert be permitted to testify about ASC 450 to the extent his report addressed the application of that standard. It makes this request when it seeks reconsideration of summary judgment on the issue of falsity, but that request raises a separate issue as well. Even though the summary judgment ruling will not be disturbed, there is a question of the extent to which the testimony of any expert at trial regarding ASC 450 is admissible. An expert's testimony is relevant if it will "help the trier of fact to understand the evidence or to determine a fact in issue." Expert testimony that usurps the role of the court in instructing the jury as to the applicable law or invades the prerogative of the jury to apply that law to the facts established at trial, however, must be excluded. In particular, an expert may not simply parrot for a jury a party's legal arguments. The issues remaining for trial include, most prominently, the issues of scienter, economic loss and loss causation. Judge Cote instructs the jury on ASC 450 and define the terms contained within that standard. The parties' requests to charge may include proposed instructions relevant to ASC 450 and its provisions. The parties will identify to each other by September 3 any portion of their own expert's report(s) that they contend remain the appropriate basis for expert testimony at trial in light of the rulings that ASC 450 is the governing accounting standard and the Form 10-Q contained a false statement and/or material omission when measured by that standard. Any testimony from an expert must be relevant and may not invade either the province of the Court in instructing the jury on the governing legal standard or the jury's prerogative to find the facts. Conclusion The Defendants' July 26, 2021 motion for reconsideration is denied. A full-text copy of the Court's Aug. 24, 2021 Opinion & Order is available at https://tinyurl.com/xewp7y39 from Leagle.com. Saxena White P.A., Steven B. Singer -- ssinger@saxenawhite.com -- Kyla Grant -- kgrant@saxenawhite.com -- Joshua H. Saltzman -- jsaltzman@saxenawhite.com -- in White Plains, New York. Maya Saxena, Joseph E. White, III -- jwhite@saxenawhite.com -- Lester R. Hooker -- lhooker@saxenawhite.com -- Brandon T. Grzandziel, in Boca Raton, Florida. Klausner Kaufman Jensen & Levinson, Robert D. Klausner -- bob@robertdklausner.com -- in Plantation, Florida, for the the Plaintiffs. Fried, Frank, Harris, Shriver & Jacobson LLP Samuel P. Groner -- samuel.groner@friedfrank.com -- Samuel M. Light -- samuel.light@friedfrank.com -- in New York City. James D. Wareham -- james.wareham@friedfrank.com -- James E. Anklam -- james.anklam@friedfrank.com -- Katherine L. St. Romain -- kate.st.romain@friedfrank.com -- in Washington, D.C., for Defendant Perrigo Company PLC. Simpson Thacher & Bartlett LLP, Joseph M. McLaughlin , Amy L. Dawson -- amy.dawson@stblaw.com -- in New York City, for Defendant Murray S. Kessler. Dechert LLP, Hector Gonzalez -- hector.gonzalez@dechert.com -- in New York City. Angelia Liu -- angela.liu@dechert.com -- in Chicago, Illinois, for Defendant Ronald L. Winowiecki. PIZZA PIE PROPERTIES: Foote Seeks Unpaid Wages for Delivery Drivers ------------------------------------------------------------------- LARAMIE SUE FOOTE, individually and on behalf of similarly situated persons, v. PIZZA PIE PROPERTIES, LTD. And ANTHONY SATTERWHITE, Case No. 3:21-cv-01612 (N.D. Ohio, Aug. 18, 2021) is a collective action lawsuit under the Fair Labor Standards Act and Ohio's "Prompt Pay Act", to recover unpaid wages owed to Plaintiff and similarly situated delivery drivers employed b Defendants at its Domino's stores. The Defendants operate numerous Domino's Pizza franchise stores. The Defendants employ delivery drivers who use their own automobiles to deliver pizza and other food items to their customers. However, instead of reimbursing delivery drivers for the reasonably approximate costs of the business use of their vehicles, Defendants use a flawed method to determine reimbursement rates that provides such an unreasonably low rate beneath any reasonable approximation of the expenses they incur that the drivers' unreimbursed expenses cause their wages to fall below the federal minimum wage during some or all workweeks, the lawsuit says.[BN] The Plaintiff is represented by: Alyson S. Beridon, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 425 Walnut Street, Suite 2315 Cincinnati, OH 45202 Telephone: (513) 381-2224 Facsimile: (615) 255-5419 E-mail: alysonb@bsjfirm.com POLARIS INDUSTRIES: Denial of Class Cert. in Johannessohn Upheld ---------------------------------------------------------------- The U.S. Court of Appeals for the Eighth Circuit affirms the district court's order denying class certification in the case, Riley Johannessohn; Daniel C. Badilla; James Kelley; Kevin R. Wonders; William Bates; James Pinion, individually and on behalf of others similarly situated, Plaintiffs-Appellants v. Polaris Industries Inc., Defendant-Appellee, State of Minnesota, Amicus on Behalf of Appellant(s), Case No. 20-2347 (8th Cir.). Background Polaris makes all-terrain vehicles, ATVs. About 15 years ago, it began receiving consumer complaints about excessive heat in its ATVs. In 2014, the U.S. Consumer Product Safety Commission started investigating reports of several ATV fires. The CPSC preliminarily found that one model presented a "substantial product hazard" under 15 U.S.C. Section 2064(a) because "the right hand side heat shield is in close proximity to, and in some cases makes contact with the exhaust manifold, posing a burn and fire hazard." The CPSC requested that Polaris voluntarily recall or correct the problem. In March 2017, Polaris recalled two models. CPSC also reviewed two other models, and Polaris issued a service advisory in July 2017 offering owners a close off kit to fix the problem. The Appellants bought Polaris ATVs. They sued, alleging that Polaris failed to disclose the heat defect, which "artificially inflated the market price for ATVs." Six Plaintiffs in six states sought to certify a nationwide class under Minnesota consumer protection laws for consumers who purchased new (1) MY (Model Year) 2016-17 Sportsman 450s; (2) MY2014-17 Sportsman 570s; (3) MY2009-16 Sportsman 850s; and (4) MY2015-2016 Sportsman 1000s. Alternatively, they asked the district court to certify six statewide classes for ATV owners in California, Florida, Minnesota, Missouri, New York, and North Carolina, under the laws of each state. The district court denied the motion for class certification for three reasons. First, the putative classes included the Plaintiffs who did not suffer an injury. Second, questions involving individual members predominated over questions of law or fact common to class members. Finally, the district court found that a class action was not superior to individualized methods of adjudication. The Plaintiffs appealed. Discussion I. To certify a class, a district court must find that the plaintiffs satisfy all the requirements of Federal Rule of Civil Procedure 23(a) and one of the subsections of Rule 23(b). "The district court has broad discretion to decide whether certification is appropriate." The Eighth Circui reviews a district court's denial of class certification for abuse of discretion. First, the Appellants tried to certify the classes under Rule 23(b)(3). Rule 23(b)(3)'s predominance requirement requires courts to ask "whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues." The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation, and goes to the efficiency of a class action as an alternative to individual suits." The Eighth Circuit finds that the Plaintiffs' nationwide class action complaint alleges violations of the MCFA, so rebuttal evidence is permitted. Polaris has evidence challenging how much each consumer-plaintiff relied on the alleged omissions. It showed that some of the named Plaintiffs are previous Polaris owners who bought new ATVs despite earlier experiences with the alleged defect. A couple of these owners tried to sell their ATVs to third parties and said they were in excellent condition -- without mentioning a heat defect. While a jury is free to reject this evidence, Polaris may present it. This will require individualized findings on reliance and is likely to make for multiple mini-trials within the class action. Because these fact issues will predominate, the district court was within its discretion to deny the motion for class certification on this basis. The Appellants also argue that the district court should have certified six state-wide classes for the states of California, Florida, Minnesota, Missouri, New York, and North Carolina. But at least two of these proposed classes -- Minnesota and North Carolina -- require individualized fact findings on the issue of reliance. Consistent with its holding, the Eighth Circuit agrees with the district court that those two statewide classes have individual questions that predominate. Finally, the Appellants say that even if classes could not be certified as Minnesota and North Carolina classes, the district court could have certified class actions for the remaining four states. Under Rule 23(b)(3), even if common questions predominate, a class can only be certified if the district court finds "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." The Eighth Circuit holds that the district court did not abuse its discretion by denying class certification for superiority reasons. It finds that (i) if the lead Plaintiffs are any indication, a sizable portion of Polaris owners have resold their ATVs, and these sales "may have reflected different discounts that could require vehicle-specific litigation; (ii) the district court was uniquely positioned to assess the management concerns and it was within its discretion to deny class certification on this basis; and (iii) district court was well positioned to weigh the manageability concerns, and the record supports its superseding concern that the litigation would be unmanageable. II. Although federal courts do not require that each member of a class submit evidence of personal standing, a class cannot be certified if it contains members who lack standing." A"A class must therefore be defined in such a way that anyone within it would have standing." "If members who lack the ability to bring a suit themselves are included in a class, the court lacks jurisdiction over their claims." The Eighth Circuit holds that the Appellants did not define their class to make sure all proposed members have standing. While the Appellants seek to certify classes for everyone who bought the models in question, evidence at the class certification stage shows that not all of the ATVs manifested the alleged heat defect. Moreover, in the circuit, plaintiffs claiming economic injury do not have Article III standing in product defect cases unless they show a manifest defect. Some class members cannot. Because the class has not been "defined in such a way that anyone within it would have standing," the class cannot be certified. Order The district court's denial of the motion for class certification is affirmed. A full-text copy of the Court's Aug. 20, 2021 Order is available at https://tinyurl.com/yeze8smf from Leagle.com. PORTFOLIO RECOVERY: Sites Suit Parties Must File Settlement Brief ----------------------------------------------------------------- In the case, STEPHEN SITES, on behalf of himself and all others similarly situated, Plaintiff v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant, Civil Action No. 2:20-cv-00704 (S.D.W. Va.), Judge John T. Copenhaver, Jr., of the U.S. District Court for the Southern District of West Virginia, Charleston, ordered the parties file a brief in support of approval of the settlement and voluntary dismissal of the action, together with a copy of the settlement agreement and any relevant supporting documents. The Court is in receipt of the parties' joint filing regarding settlement and dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(ii), filed Aug. 17, 2021. The Plaintiff has asserted a claim individually and on behalf of others similarly situated for violation of the West Virginia Consumer Credit and Protection Act, W. Va. Code Sections 46A-2-127 and 46A-2-128(f). In its order entered Aug. 10, 2021, the Court vacated the stipulation of dismissal with prejudice and directed the parties to provide "a detailed factual summary of the settlement and voluntary dismissal with prejudice and justification for court approval thereof," noting that "if the parties do not believe court approval is actually necessary, the filing should provide a legal basis for reaching such a conclusion." In their Aug. 17, 2021 filing, the parties provide few details regarding the settlement. They argue that voluntary dismissal is not subject to Rule 23 after its amendment in 2003 and that "oversight process Shelton v. Pargo, Inc., 582 F.2d 1298, 1314 (4th Cir. 1978) describes is no longer required or authorized by the Rules." They cite Withrow v. Enterprise Holdings, Inc., No. 3:09-1543, 2010 WL 3359686 (S.D. W. Va. Aug. 20, 2010), for the proposition that a Shelton review of the named Plaintiff's settlement is no longer necessary and posit that Milligan v. Actavis, No. 2:09-cv-00121, 2009 U.S. Dist. LEXIS 81663, at *2 (S.D. W. Va. Sept. 9, 2009), which required compliance with Shelton, was wrongly decided. In the event the Court requires more information, the parties "request that they be permitted to provide the terms of the confidential settlement agreement under seal, or for the Court's in camera review." The Court has already found that Rule 23(e) is inapplicable in its Aug. 10, 2021 order. But as it in Milligan recognized, Shelton remains precedent in the circuit notwithstanding the clear inapplicability of Rule 23(e). The Withrow case cited by the parties does not alter this conclusion. A dissatisfied party, Ms. Taylor, thereafter moved to set aside the voluntary dismissal, citing a failure to comply with Rule 23(e) and Shelton. The Withrow court considered the holding in Shelton concerning approval of pre-certification settlements of representative parties' individual claims in class actions and then explained why Shelton was "inapposite." Judge Copenhaver holds that although Withrow found Shelton to be inapplicable since the plaintiff in that case did not seek to settle individual claims to the detriment of the putative class, he notes that Withrow, in effect, found the dismissal in that case to accord with Shelton inasmuch as no prejudice resulted from the dismissal and subsequent refiling of the action in Missouri. Indeed, the Court noted that even if Shelton were applicable, Ms. Taylor had "failed to demonstrate collusion by the parties or prejudice to the putative class members." Unlike the circumstances in Withrow, Judge Copenhaver holds that the Court has little information to assess the possibility of collusion and potential prejudice to the putative class. However, several cases have interpreted Shelton to allow approval of relevant settlements on briefs without a full hearing. Accordingly, the Judge ordered the parties file a brief in support of approval of the settlement and voluntary dismissal of the action, together with a copy of the settlement agreement and any relevant supporting documents, within five days of the entry of the Order. The Judge declined to preliminarily authorize the sealing of any such documents, and the parties are to comply with the District's protocols for sealing documents should they seek leave to seal them. The Court notes that any voluntary dismissal of the action will be with prejudice only as between the named Plaintiff and the Defendant and will be without prejudice as to the proposed class. The Clerk is directed to transmit copies of the Order to all the counsel of record and to any unrepresented parties. A full-text copy of the Court's Aug. 20, 2021 Order is available at https://tinyurl.com/dh96p8ah from Leagle.com. PREFERRED GROUP: C.D. California Dismisses Valdes Class Suit ------------------------------------------------------------ Judge Josephine L. Staton of the U.S. District Court for the Central District of California dismissed the case, JORGE VALDES, individually and on behalf of all others similarly situated, Plaintiff v. PREFERRED GROUP PROPERTIES, INC., Defendant, Case No. 8:20-cv-00469-JLS-DFM (C.D. Cal.). Having considered the Parties' joint stipulation pursuant to Fed. R. Civ. 41(a)(1)(A)(ii) and for good cause appearing, Judge Staton dismissed the action with prejudice as to the Plaintiff's individual claims. All the putative class action allegations and claims in the action are dismissed without prejudice. No Party will be entitled to costs or attorneys' fees because of the Order of Dismissal. Pursuant to Fed. R. Civ. P. 23(e) and based on the factors identified in Diaz v. Trust Territory of the Pacific Islands, 876 F.2d 1401 (9th Cir. 1989), the dismissal of the class allegations is made, without notice to the putative class. The action is dismissed on the terms outlined. A full-text copy of the Court's Aug. 20, 2021 Order is available at https://tinyurl.com/y4pbyf4 from Leagle.com. RAGNAR & ROLLO: Underpays Cleaners, Scott Suit Alleges ------------------------------------------------------ NIASHA SCOTT, individually and on behalf of all other persons similarly situated who were employed by RAGNAR & ROLLO INDUSTRIES, INC. d/b/a CLEANTEC SERVICES and/or any other entities affiliated with or controlled by RAGNAR & ROLLO INDUSTRIES, INC. d/b/a CLEANTEC SERVICES, Plaintiff v. RAGNAR & ROLLO INDUSTRIES, INC. d/b/a CLEANTEC SERVICES, and any related entities, Defendants, Case No. 5:21-cv-00956-FJS-ATB (N.D.N.Y., August 24, 2021) is a collective and class action complaint brought against the Defendants for their alleged violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was employed by the Defendants as a territory supervisor from approximately June 2019 until April 2021. According to the complaint, the Defendant required the Plaintiff and other similarly situated hourly paid cleaners to perform work without properly paying them for all hours worked and appropriate overtime compensation for hours worked in excess of 40 per workweek. The Defendant automatically deducted one-half hour meal break from their paychecks, says the suit. The Plaintiff brings this complaint for herself and all other similarly situated employees to recover all unpaid wages and unpaid overtime wages, as well as liquidated damages in the amount of 100% of the unpaid regular and overtime wages, plus interest, attorneys' fees and costs, and other relief as the Court may deem just and proper. Ragnar & Rollo Industries, Inc. d/b/a Cleantec Services provides cleaning services. [BN] The Plaintiff is represented by: Frank S. Gattuso, Esq. GATTUSO & CIOTOLI, PLLC The White House 7030 E. Genesee Street Fayetteville, NY Tel: (315) 314-8000 Fax: (315) 446-7521 E-mail: fgattuso@gclawoffice.com SADDLE RANCH: Faces Alonzo ADA Suit in Central Dist. of California ------------------------------------------------------------------ A class action lawsuit has been filed against Saddle Ranch Holdings, LLC. et al. The case is captioned as Thuy Thanh Alonzo v. Saddle Ranch Holdings, LLC. et al., Case No. 2:21-cv-06630-CJC-JC (C.D. Cal., Aug. 16, 2021). The suit alleges violation of the Americans with Disabilities Act. The case is assigned to the Hon. Judge Cormac J. Carney. The Defendants include Saddle Ranch Holdings, LLC, a Delaware limited liability company; and Does 1 to 10, inclusive.[BN] The Plaintiff is represented by: Binyamin I. Manoucheri, Esq. Jasmine Behroozan, Esq. Thiago Merlini Coelho, Esq. WILSHIRE LAW FIRM PLC 3055 Wislhire Boulevard 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: binyamin@wilshirelawfirm.com jasmine@wilshirelawfirm.com thiago@wilshirelawfirm.com SANTA MONICA, CA: Bid to Vacate Judgment Against Columbia Denied ---------------------------------------------------------------- In the case, COLUMBIA SUSSEX MANAGEMENT, LLC, and CW HOTEL LIMITED PARTNERSHIP, individually and on behalf of all other hotel owners and managers operating hotels in Santa Monica, California, Plaintiffs v. CITY OF SANTA MONICA, Defendant, Case No. 2:19-cv-09991-ODW (SKx) (C.D. Cal.), Judge Otis D. Wright, II, of the U.S. District Court for the Central District of California declines to vacate the judgment against the Plaintiffs. On Sept. 10, 2019, the Santa Monica City Council adopted Santa Monica Municipal Code Chapter 4.67, including section 4.67.030(a), to enhance the protection of hotel workers in the hospitality industry in Santa Monica. The Ordinance prevents hotel employees who clean guest rooms from cleaning more than a specified square footage of floor space during their scheduled shift without additional compensation. Plaintiffs Columbia Sussex Management, LLC and CW Hotel Limited Partnership filed the putative class action against Defendant City of Santa Monica challenging the validity of portions of the Ordinance. On Aug. 28, 2020, the Court dismissed the Plaintiffs' SAC with prejudice and without leave to amend and issued Judgment against the Plaintiffs. The Plaintiffs appealed. During the pendency of the appeal, the Plaintiffs sold their interests in the subject hotel, making them no longer subject to the Ordinance. The Ninth Circuit accordingly granted the City's motion to dismiss the appeal as moot. The Ninth Circuit remanded the action to the Court "with instructions to 'balance the relevant equitable concerns and decide whether to vacate its judgment.'" Upon receiving the case on remand, the Court ordered the Plaintiffs and the City to submit briefing with their respective positions regarding issues relevant to equitable vacatur. Jude Wright has reviewed the parties' papers. He finds that the Plaintiffs voluntary action caused the action to become moot in that the Plaintiffs sold their interests in the subject hotel, thereby relinquishing their stake in the controversy. The Plaintiffs attempt to recharacterize the sale as a result of the "vagaries of circumstance," forced by their financial burden. However, the Judge finds that the circumstances here are patently of the type that fall within the exception, as it was the Plaintiffs' choice to sell their interests in the subject hotel and thus forfeit their claim to the "equitable remedy of vacatur." He says, the Plaintiffs' argument that the Ninth Circuit "erred in dismissing the case as moot" is not well-taken. The Court is bound by precedent of the Ninth Circuit, and particularly so by rulings that constitute the law of the case. The Court may not simply disregard the Ninth Circuit's ruling in the appeal of the matter. Leaving the Judgment in vigor will cause the Plaintiffs no prejudice, as they no longer own the subject hotel in Santa Monica, are not subject to the Ordinance, and therefore would have no occasion to "relitigate unreviewed disputes." Leaving the judgment intact will also serve the public interest, as "judicial precedents are presumptively correct and valuable to the legal community as a whole." Additionally, the City aptly notes that the Plaintiffs appealed only one portion of the Court's final ruling, which resolved multiple constitutional challenges. Thus, vacating the judgment in its entirety would not be appropriate in any event. For the foregoing reasons, Judge Wright declines to vacate the judgment. A full-text copy of the Court's Aug. 24, 2021 Order is available at https://tinyurl.com/3xnj3bak from Leagle.com. SHOPIFY INC: Collects Private Info From Online Payments, Suit Says ------------------------------------------------------------------ Brandon Briskin, on behalf of himself and those similarly situated v. Shopify Inc. and Shopify (USA) Inc., Case No. 3:21-cv-06269-SK (N.D.Cal., Aug. 13, 2021) alleges that Shopify surreptitiously intercepts consumers' communications and collects their private information when they make online payments to merchants. Shopify is an e-commerce platform that enables merchants to easily sell products online. Many of Shopify's customers are merchants who operate websites and mobile applications, such as IABMFG. Shopify created software code to enable merchants to integrate Shopify's payment forms into their applications. To that end, Shopify provides comprehensive documentation to its merchant customers, describing how to integrate payment forms into their websites and applications using the Shopify code, including how to omit Shopify branding such that the form appears to the consumer to belong to the merchant's website. Mr. Briskin is, and was at all relevant times, an individual and resident of California. Plaintiff currently resides in Madera, California. In June 2019, Shopify reported that it had more than 1,000,000 businesses in approximately 175 countries using its platform, with total gross merchandise volume exceeding $41 billion for calendar year 2018. Using Shopify's website, merchants provide Shopify with their product offerings, prices, shipping options and other business preferences. Shopify hosts some of its merchants' websites and creates all of the code necessary to implement the product catalog and to accept payment. In addition, merchants who already own websites can elect to embed certain Shopify assets, such as payment forms, into their pre-existing websites, says the suit. Allegedly, Shopify does not disclose to consumers its role in the transaction, let alone that Shopify is sending code to consumers' devices to display the payment forms. To the consumer, the website and payment forms appear to be generated by the merchant itself. Thus, a consumer never knows that they have shared their sensitive information, including sensitive financial information, to Shopify, the lawsuit says.[BN] The Plaintiff is represented by: Seth A. Safier, Esq. Marie McCrary, Esq. Todd Kennedy, Esq. GUTRIDE SAFIER LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 639-9090 Facsimile: (415) 449-6469 E-mail: seth@gutridesafier.com marie@gutridesafier.com todd@gutridesafier.com SOCIAL FINANCE: Can Partly Compel Arbitration in Juarez Class Suit ------------------------------------------------------------------ In the case, RUBEN JUAREZ, et al., Plaintiffs v. SOCIAL FINANCE, INC., et al., Defendants, Case No. 20-cv-03386-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the Northern District of California grants in part and denies in part the motion to compel arbitration filed by Defendants Social Finance Inc. and Social Finance Lending Corp. Background Plaintiffs Ruben Juarez and Calin Constantin Segarceanu initially filed the putative class action against SoFi on May 19, 2020. On May 3, 2021, the Plaintiffs filed a second amended complaint, adding Plaintiffs Emiliano Galicia and Josue Jimenez to the case. As relevant to the pending motion, the Plaintiffs allege that Mr. Galicia was born in Mexico and has lived in the United States since 1994. In approximately 2012, Mr. Galicia obtained Deferred Action for Childhood Arrivals ("DACA") status. In August 2019, Mr. Galicia applied for a personal loan from SoFi to fund his real estate consulting business. However, SoFi denied his loan application because of his DACA status. The Plaintiffs allege that since the initial application, Mr. Galicia has continued to receive promotional material from SoFi and "periodically checked to see whether SoFi changed its policy with respect to lending to DACA recipients." In April 2021, Mr. Galicia also called SoFi's customer service number "to indicate his willingness and intent to apply for a personal loan and to inquire as to whether SoFi had changed its eligibility policy for DACA recipients." The customer service representative, however, indicated that DACA recipients were still ineligible unless they had a co-signer who was a U.S. citizen or lawful permanent resident. As a result, Mr. Galicia did not complete a new loan application because he believed doing so would be futile. The Plaintiffs allege that SoFi's policies and practices to deny loans to DACA recipients constitute unlawful discrimination. Based on these facts, Mr. Galicia asserts two causes of action for (1) alienage discrimination, in violation of 42 U.S.C. Section 1981; and (2) discrimination, in violation of California's Unruh Civil Rights Act, Cal. Civ. Code Sections 51, et seq. SoFi now moves to compel Mr. Galicia's two claims to arbitration. SoFi previously moved to compel arbitration as to Plaintiff Juarez's same claims for violations of Section 1981 and the Unruh Civil Rights Act. The Court denied that motion. Discussion Much as it did in its prior motion to compel, SoFi states its records indicate that Mr. Galicia expressly consented to arbitration in 2019 when he first submitted a loan application. SoFi explains that to submit an online loan application, Mr. Galicia had to register as a new user and acknowledge and agree to be bound by several agreements, including an arbitration agreement. It explains that without affirmatively checking the "I Agree" box manifesting his consent to the arbitration agreement, Mr. Galicia could not have signed in or proceeded with any loan application on the website. SoFi states that according to its records, Mr. Galicia registered on SoFi's website on Aug. 7, 2019, and consented to the arbitration agreement as part of that registration process. SoFi's records also show that Mr. Galicia "started an application" for a personal loan on Aug. 7, 2019. In their opposition brief, the Plaintiffs do not appear to challenge that Mr. Galicia's claims arising from his 2019 application fall within the scope of the arbitration agreement. And unlike their opposition to the motion to compel Mr. Juarez's claims, the Plaintiffs do not explicitly disclaim reliance on Mr. Galicia's 2019 application. Rather, they only challenge whether to compel arbitration as to Mr. Galicia's claims arising from subsequent interactions with SoFi. Based on the Plaintiffs' opposition brief, however, Judge Gilliam assumes they do not intend to rely on Mr. Galicia's 2019 loan application. It appears clear that any claims relying on the 2019 loan application would be subject to the arbitration agreement given SoFi's internal records and the plain language of the arbitration agreement. The Judge therefore grants SoFi's motion to compel arbitration as to Mr. Galicia's claims arising from his 2019 loan application. Judge Gilliam has already found that SoFi's arbitration agreement "is limited in scope" and only "applies on a transaction-by-transaction basis." He therefore does not extend to any future registrations, submissions, or applications. To the extent that Mr. Galicia's claims are premised, at least in part, on an April 2021 inquiry that he made over the telephone (a year and a half after Mr. Galicia's August 2019 application), that is not covered by the plain terms of the 2019 arbitration agreement. SoFi acknowledges the Court's prior ruling, but contends that Mr. Galicia's claims should still be compelled to arbitration under the doctrine of equitable estoppel. Judge Gilliam holds that (i) SoFi offers no case law -- and the Court is aware of no authority -- supporting the application of the doctrine of equitable estoppel under such circumstances; and (ii) Mr. Galicia does not seek to enforce the terms of the Terms of Use or the arbitration agreement, and therefore he has not triggered any estoppel based on his claims. For these reasons, SoFi's motion to compel arbitration is therefore denied on this basis. Conclusion Accordingly, Judge Gilliam grants in part and denies in part the motion to compel arbitration. He grants SoFi's motion to compel arbitration as to Mr. Galicia's claims arising from his 2019 loan application, to the extent the Plaintiffs intend to pursue such claims, but otherwise denies the motion in its entirety. The case schedule at Dkt. No. 66 remains in place. The Plaintiffs are further directed to file a short statement of two pages or less, indicating whether they intend to pursue in arbitration Mr. Galicia's claims based on his 2019 loan application. A full-text copy of the Court's Aug. 24, 2021 Order is available at https://tinyurl.com/kbtxuz8b from Leagle.com. UNITED STATES: Court Partly Stays Proceedings in Braswell Suit -------------------------------------------------------------- In the case, BRENDA BRASWELL, et al., Plaintiffs, v. THE UNITED STATES, Defendant, Case No. 20-359C (Fed. Cl.), Judge Victor J. Wolski of the U.S. Court of Federal Claims granted in part and denied in part the government's motion to stay proceedings. The case was brought as a class action by 22 employees of seven different federal departments and one independent agency, seeking extra pay due to workplace exposure to the virus that causes COVID-19. They allege entitlement to a hazardous duty pay differential under 5 U.S.C. Section 5545(d), and to an environmental pay differential under 5 U.S.C. Section 5343(c)(4) and 5 C.F.R. Section 532.511. A sub-group consisting of 18 Plaintiffs seeks to bring a collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 201, et seq., for additional overtime pay allegedly owed due to the failure to account for the hazardous duty or environmental pay differentials. The same day that the Plaintiffs filed their opposition to the government's motion to dismiss the case, an opinion was issued by a judge of our court dismissing a case brought by other current and former federal employees alleging the same violations of the same pay statutes. Because that case is now on appeal before the Federal Circuit, the government has moved for a stay of proceedings in this matter, until 30 days after the Federal Circuit's opinion in the other case becomes final. The Defendant stresses the indisputable judicial economies that are achieved by not devoting resources to issues that are about to be resolved or clarified by a higher court. The Plaintiffs for the most part agree, but oppose a stay to the extent it would interfere with the ability of similarly-situated federal employees to file the consent forms necessary to commence their individual actions under FLSA. Thus, they wish to move forward with a class certification motion, unless the statute of limitations can be tolled during the stay period. Judge Wolski notes that the filing of a class certification motion would trigger class action tolling under Bright v. United States, 603 F.3d 1273, 1290 (Fed. Cir. 2010), only regarding the non-FLSA claims asserted. For claims under FLSA, Congress has provided that "an action is commenced for purposes of" the statute of limitations "in the case of a collective or class action" on the date each individual participant's written consent is filed with the court. In considering a motion to stay proceedings, a court must "weigh competing interests and maintain an even balance." The Court must consider judicial efficiency and economy, determining whether a stay will resolve relevant issues and simplify the case. And the Court must consider both prejudice to the moving party if required to proceed without a stay, and to the non-moving party if the case is stayed. Only rarely will this full consideration result in a decision to grant a stay, especially in light of the burden resting on the proponent to establish the need for a stay. Without question, the cause of judicial economy is served by a stay of consideration of the motion to dismiss the case, given that the very issues presented will be resolved shortly by the Federal Circuit. A stay of discovery would also conserve the litigants' resources from being wasted were the Circuit to affirm the dismissal of Adams, or even if it were to reverse the dismissal but interpret the relevant laws in a manner that narrows their potential scope. And resources dedicated to resolving a class certification motion, including possible discovery, and identifying and notifying potential class members if the class is certified, would all be for naught were the dismissal to be affirmed. The government opposes allowing the Plaintiffs to proceed with a class certification motion while a stay is pending, arguing that much of the benefits of a stay are undermined if significant resources are committed to such a motion; that potential class members have no right to notice concerning a case before its viability is settled; and that the prejudice asserted by the Plaintiffs is negligibly contingent, "concerning only the abilities of potential members of a putative class to assert a derivative FLSA claim." While it might seem unusual to proceed on a class certification motion under these circumstances, Judge Wolski finds that the Plaintiffs have identified a source of potential prejudice. Even if the Federal Circuit were to issue an opinion within the median time of 10.2 months from the date of docketing, this would bring the Court to Dec. 23, 2021. If another 90 days for the filing of a petition for writ of certiorari is added, assuming no request for rehearing is filed, the stay at the earliest would be expiring April 22, 2022 (including the thirty days until the proposed status report is filed). Given the periods of alleged exposure and the ensuing pay periods, the potential class members who file written consents after this date could be too late to the case to recover all overtime underpayments alleged, unless the Plaintiffs prevail on their allegation of willfulness. Although these potential class members are not yet participants in the case, Judge Wolski finds that at some point in the litigation their interests should factor into the stay equation. He says, the claims for hazardous duty and environmental pay differentials are not brought under FLSA, and thus the filing of a class certification motion would, under Bright, toll the statute of limitations for those claims. If a class is certified, any putative member who subsequently opts-in would have a claim which relates back at least to that date, if not to the initial filing of the complaint. In a sense, then, the putative class members have a concrete interest in proceedings once the class certification motion is filed, and a stay that prevents such a filing would prejudice their interests in their FLSA claims. For this reason, Judge Wolski will not extend the requested stay to preclude the filing of a motion for class certification. He says, it is not apparent whether the Plaintiffs still intend to file such a motion, which more than five months ago they characterized as to be filed "shortly" and "promptly." Perhaps they are counting on the strength of their willfulness allegations, and do not view Jan. 27, 2022, as a noteworthy milestone. Or they might have decided that the conservation of potentially wasted resources outweighs the potential loss of a portion of putative class members' FLSA claims. But in any event, the Judge will not prevent plaintiffs from filing a class certification motion if that is their wish. This does not mean, however, that the motion, if filed, need be fully litigated, Judge Wolski adds. After it is filed, the government will be allowed to move for a stay of consideration, and the Plaintiffs may reassert their equitable tolling argument, which the Judge finds premature at this point. While it is far from clear, from the limited briefing on the topic, that equitable tolling is warranted when a stay is imposed pending an appellate decision, it appears to the Court that the FLSA statute of limitations is not jurisdictional and thus may be tolled. This has been the judgment of several judges of our court, and "the Supreme Court has 'made plain that most time bars are nonjurisdictional.'" Indeed, the Supreme Court has noted that all Courts of Appeals considering the matter have found the FLSA provision to be nonjurisdictional and has cited its language in discussing why similar language did not make another statute of limitations jurisdictional. In any event, because 29 U.S.C. Section 255 is not jurisdictional, the matter of the timeliness of written consent forms may be a topic of compromise among the parties. If the government wants to achieve the economies of a stay of all proceedings, and discounts greatly the value of any FLSA claims which might otherwise be excluded were a class to be certified and members to opt in at a much later date, it can assume that risk and waive any objection to lateness due to the stay. For these reasons, Judge Wolski granted in part and denied in part the government's motion to stay proceedings. During the requested stay period, the Plaintiffs will be allowed to file amended complaints with additional consent forms, and a motion for class certification. Within 30 days of the Federal Circuit's decision in Adams v. United States, No. 21-1662, becoming final and unappealable, the parties will file a joint status report proposing further proceedings in the case. A full-text copy of the Court's Aug. 20, 2021 Order is available at https://tinyurl.com/3cs92432 from Leagle.com. Heidi R. Burakiewicz -- hburakiewicz@kcnlaw.com -- Kalijarvi, Chuzi, Newman & Fitch, P.C., in Washington, D.C., for the Plaintiff. Eric E. Laufgraben, Commercial Litigation Branch, Civil Division, Department of Justice, with whom was Allison Kidd-Miller, Assistant Director, both of Washington, D.C., for the Defendant. US TOBACCO: Bid to Name Lewis Class Reps as Special Committee Nixed ------------------------------------------------------------------- In the case, IN RE: U.S. TOBACCO COOPERATIVE, INC., et al., Chapter 11, Debtor, Case No. 21-1511-5-JNC (Bankr. E.D.N.C.), Judge Joseph N. Callaway of the U.S. Bankruptcy Court for the Eastern District of North Carolina, Raleigh Division, denied the Lewis Certified Class' motion for an order appointing its class representatives as an official special committee in this chapter 11 case. The matter before the Court is the motion filed July 14, 2021 by the Certified Class Action claimants ("Lewis Certified Class") from civil actions pending before the Superior Court of North Carolina, Wake County, namely Dan Lewis and Daniel H. Lewis Farms, Inc., et al. v. Flue-Cured Tobacco Cooperative Stabilization Corporation (n/k/a United State Tobacco Cooperative, Inc.), Case Nos. 05-CVS-188 and 05-CVS-1938 ("Lewis Class Litigation"). In the Motion, the Lewis Certified Class seeks entry of an order appointing its class representatives as an official special committee in this chapter 11 case pursuant to 11 U.S.C. Section 1102(a)(2). The lead debtor, U.S. Tobacco Cooperative, Inc., objected to the relief sought in its response filed July 27, 2021. The matter was noticed for hearing on Aug. 10, 2021, in Greenville, North Carolina. Respective counsel for the parties appeared and presented arguments at that time. At the conclusion of the hearing, the Court took the matter under advisement. The Lewis Class Litigation was brought in Wake County Superior Court in 2004. The Lewis Certified Class is certified in a trial court decision ratified and affirmed by the North Carolina Supreme Court in Fisher v. Flue-Cured Tobacco Coop. Stabilization Corp., 369 N.C. 202, 794 S.E.2d 699 (2016). According to the Motion and other filings in the case, the Lewis Certified Class consists of an estimated 212,000 individual claimants holding up more than 800,000 claims against the Debtors for alleged past wrongful retention or conversion of millions of dollars. On April 23, 2021, the Honorable A. Graham Shirley, Superior Court Judge Presiding by Designation in the Lewis Class Litigation, issued an intricately detailed 189-page memorandum partial summary judgment opinion, which retained some defense offset claims by the Debtors for subsequent trial by jury. The Partial Judgment Order places the Debtors with potential liability to the Lewis Certified Class exceeding $725 million. On May 21, 2021, the Defendant in that action and now lead debtor here, U.S. Tobacco Cooperative, filed a notice of appeal of the Partial Judgment Order to the North Carolina Court of Appeals ("Lewis Appeal"). An order granting relief from automatic stay to pursue and defend the Lewis Appeal has been issued by the Court. At the Aug. 10, 2021 hearing on the Motion, the Bankruptcy Administrator staff attorney announced support for the Motion. He also reported that general creditors other than members of the Class had not expressed sufficient interest for that office to organize and form a committee of creditors holding general unsecured claims against the Debtors. The Lewis Certified Class has readily acknowledged that its unusual claims and interests in the case (including an assertion of a security interest by way of a constructive trust claim reservation) are sufficiently differentiable from general claims so as to preclude service of its members on a primary or general unsecured claims committee under 11 U.S.C. Section 1102(a)(1), resulting in only the Lewis Certified Class currently seeking formation of a second or specific claims class committee. In deciding whether additional committee representation is appropriate, courts consider several factors including: 1) the ability of the committee to function; 2) the nature of the case; 3) the standing and desires of the various constituencies; 4) the ability for creditors to participate in the cases without an official committee and the potential to recover expenses pursuant to Section 503(b); 5) whether different classes may be treated differently under a plan and need representation; 6) the motivation of movants; 7) the costs incurred by the appointment of additional committees; and 8) the tasks that a committee or separate committee is to perform. In weighing these aspects, "no one factor is dispositive, and the amount of due consideration given to each depends on the circumstances of the particular chapter 11 case." Given this high level of sophistication, Judge Callaway holds that the Lewis Certified Class is adequately represented without the necessity of formation of a special committee under Section 1102(a)(2). The tasks necessary to be performed to preserve and vigorously prosecute the positions of the Lewis Certified Class will not be affected by section 1102 committee status. The Lewis Certified Class has legal standing from its Rule 23 certification in state court, is highly organized and is already functioning very effectively as an uncontested, recognized ad hoc committee or class. Nothing in the chapter 11 case is being delayed by lack of official committee status for the Lewis Certified Class; in fact, quite the opposite is true. No delay will ensue from not establishing an official committee for it. The litigational relationship and fact finding powers balance between the Lewis Certified Class and the Debtors is necessarily governed by applicable rules of bankruptcy, civil, and appellate procedure. The Lewis Certified Class is more than capable of representing itself in these bankruptcy cases. It is not prejudiced by denial of official committee status. Having considered all the facts and circumstances presented, Judge Callaway concludes that grant of section 1102 special committee status to the Lewis Certified Class would be of limited if any value under the facts of the case. The presence or absence of a cloak of section 1102(a)(2) official special committee status will not change the fair balance or leverage between those parties. The Motion is denied. A full-text copy of the Court's Aug. 20, 2021 Order is available at https://tinyurl.com/v9jfccsn from Leagle.com. WINDERMERE REAL: Wash. App. Flips Denial of Atty. Fees in Jones --------------------------------------------------------------- In the case, TALINA JONES, an individual, Plaintiff, TIM HATCHETT, an individual, and all those similarly situated, Appellant v. WINDERMERE REAL ESTATE SERVICES CO., d.b.a. WINDERMERE SERVICES CO., a Washington corporation, Defendant, WINDERMERE EQUITY BROKERS, d.b.a., Windermere Property Management, a Washington limited liability company, Respondent, THOMAS FLANIGAN, an individual; TIMOTHY TODD, an individual; and each individual's marital community, Defendants, Case No. 37614-1-III (Wash. App.), the Court of Appeals of Washington for Division Three: (i) dismisses as moot Plaintiff Hatchett's appeal from the trial court's denial of his request for class action certification; but (ii) reverses trial court's denial of Hatchett's request for attorney fees award. Talina Jones and Tim Hatchett filed suit against their former landlords, Windermere Real Estate Services Co. and Windermere Equity Brokers (collectively, Windermere). Jones and Hatchett asserted that Windermere systematically failed to provide timely, full, and final deposit dispositions and refunds due to them and other former tenants. Plaintiff Hatchett, the putative class representative, sought class certification. Windermere objected on a number of bases, including that the trier of fact would be required to consider the merits of its defense for many of the class members, i.e., that circumstances beyond its control prevented it from complying with the statutory deadline for returning deposits. The trial court denied class certification, finding that questions of law and fact were not common to members of the putative class and do not predominate over questions affecting only individual members. Windermere subsequently made separate CR 68 offers of judgment to each of the former tenants. The CR 68 offer made to Hatchet stated Windermere offered "to allow judgment to be taken against it in the above-entitled cause for the amount of $2,000, as well as reasonable attorney's fees and costs, to be determined by the Court." The offer made to Jones was identical, except it offered $5,500. Jones and Hatchett accepted the offers. They then moved for entry of judgment and an award of reasonable attorney fees and costs. In their declarations, the former tenants' attorneys noted that they represented the former tenants on a contingency basis. The trial court issued a thorough written ruling in which it calculated the fee award. It first determined reasonable attorney fees by considering the reasonable hourly rates of the three attorneys for the former tenants, it then determined the reasonable number of hours expended by reducing duplicative time, and it then discounted the time spent on unsuccessful claims. With respect to the first component, reasonable hourly rates, the trial court discounted the requested rates of the former tenants' three attorneys from $400/$325/$325 to $300/$300/$275. In doing so, the trial court noted that the hourly rates of comparable attorneys at defense counsel's firm were between $250 and $300. The trial court did not recognize that the rates of the former tenants' three attorneys may have been higher than the comparable attorneys at defense counsel's firm because payment to the former attorneys was contingent on a recovery. Plaintiff Hatchett, but not Jones, appealed. Analysis A. Class Certification Plaintiff Hatchett argues the trial court erred in denying class certification. Windermere responds that the class certification issue is moot because Hatchett settled that claim. Hatchett asserts that Windermere's CR 68 offer of judgment was not sufficiently clear to settle that claim. The Court of Appeals disagrees. It explains that an appeal is moot if it presents "purely academic issues" and it is not possible for the court to provide any effective relief Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn.2d 619, 631, 860 P.2d 390, 866 P.2d 1256 (1993). In the case, the Court of Appeals cannot provide Hatchett any relief if he has settled his class certification claim. Plaintiff Hatchett argues that a class representative's acceptance of a CR 68 offer of judgment does not extinguish that person's right to appeal a denial of class certification unless the CR 68 offer explicitly says so. In support of his argument he cites Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015 (9th Cir. 2012). The Court of Appeals opines that Evon does not stand for that broad principle. In Evon, the defendants' CR 68 offer of judgment stated in relevant part: "Defendants hereby offer to allow judgment to be taken against them and do not concede or admit that Plaintiff has a right to appeal any prior ruling of this Court if she accepts this offer.'" The Evon court first observed that ambiguous offers of judgment must be construed against the drafter. It next compared the original CR 68 offer, which explicitly barred all appeal of the certification issue, with the accepted CR 68 offer, which was not explicit. These two considerations persuaded the Evon court to conclude that the class representative's settlement of her personal claim did not foreclose her appeal of the denial of class certification. Unlike Evon, in the instant case, there was only one CR 68 offer. That offer was clear and it settled "the above-entitled cause," i.e., Hatchett's court action. The Court of Appeals must construe a CR 68 offer of judgment against the drafter. In the case, the offer included reasonable attorney fees "to be determined by the Court." The offer could have qualified which court by saying "trial" or "superior." It did not. It is unclear whether the offer precluded either side from appealing an attorney fee award. Construing the offer against the drafter, Windermere, the Court of Appeals concludes that Hatchett may appeal his attorney fee award. B. Reasonable Attorney Fees Plaintiff Hatchett contends the trial court erred by reducing his requested attorney fees (1) by not considering the contingent nature of the representation and (2) by reducing the recoverable hours by the time spent on the class certification claim. The Court of Appeals agrees with his first argument but disagree with his second. Washington courts apply the lodestar method for determining reasonable attorney fees by determining a reasonable hourly rate and multiplying it by the reasonable number of hours expended. Factors set forth in RPC 1.5(a) may be used as a guideline for determining reasonable attorney fees. First, the trial court reduced the rates charged by the former tenants' attorneys to the rates charged by attorneys with comparable experience but paid on an hourly basis, win or lose. In so doing, the court failed to recognize that the rates of the former tenants' attorneys were justifiably higher to reflect the contingent nature of recovery. Hence, the Court of Appeals remands for the trial court to consider this. Second, in determining the reasonable number of hours, a court should discount hours spent on unsuccessful claims, duplicated effort, or otherwise unproductive time. In the case, the trial court meticulously and properly computed the reasonable number of hours. Conclusion Based on the foregoing, the Court of Appeals reversed and remanded to reconsider reasonable attorney fee rates. A majority of the panel has determined the Opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. A full-text copy of the Court's Aug. 24, 2021 Opinion is available at https://tinyurl.com/mdhsm3y8 from Leagle.com. Shayne Sutherland -- ssutherland@cameronsutherland.com -- Cameron Sutherland, PLLC, 421 W Riverside Ave., Ste. 660, in Spokane, Washington 99201-0410, Counsel for the Appellant(s). Brian Cameron -- bcameron@cameronsutherland.com -- Cameron Sutherland, PLLC, 421 W Riverside Ave Ste 660, Spokane, WA, 99201-0410, Kirk David Miller -- kmiller@millerlawspokane.com -- Kirk D. Miller, P.S., 421 W Riverside Ave., Ste. 660, in Spokane, Washington 99201-0410, Kammi Mencke Smith, Winston & Cashatt, 601 W Riverside Ave., Ste. 1900, in Spokane, Washington 99201-0695, Timothy Robert Fischer, Winston & Cashatt, 601 W Riverside Ave., Ste. 1900, in Spokane, Washington 99201-0695, Counsel for the Respondent(s). YOUNG LIVING: Penhall Has Leave to Amend Suit to Add Two Plaintiffs ------------------------------------------------------------------- In the case, LINDSAY PENHALL, Plaintiff v. YOUNG LIVING ESSENTIAL OILS, Defendant, Case No. 2:20-cv-00617-DBB-CMR (D. Utah), Magistrate Judge Cecilia M. Romero of the U.S. District Court for the District of Utah, Central Division, grants Penhall's Motion for Leave to Amend Complaint to add two new plaintiffs. The Plaintiff initiated the class action suit in the Southern District of California. Shortly thereafter, the Plaintiff filed her First Amended Complaint as a matter of course in accordance with Federal Rule of Civil Procedure 15(a)(1)(A). The Defendant filed a motion to dismiss or transfer for improper venue, and the case was subsequently transferred to the Court in August of 2020. It then filed a Motion to Dismiss or Stay and Compel Arbitration based on an arbitration provision in a 2019 distributor agreement. The Plaintiff thereafter filed the instant Motion and a motion to stay briefing and decision on the Motion to Dismiss, which the Court granted. Due to the pending Motion to Dismiss which was stayed, no scheduling order has been entered in the case. The matter is referred to Judge Romero pursuant to 28 U.S.C. Section 636(b)(1)(A) (ECF 50). Before the Court is Penhall's Motion to Amend to add two new plaintiffs. The Plaintiff seeks leave to file a Second Amended Complaint for the purpose of adding Sarah Maldonado and Tiffanie Runnels as plaintiffs. The Defendant opposes this request on the grounds of futility. It argues amendment is futile because (1) Runnels' claims fall outside the class period; (2) Runnels' claims are barred by the applicable statutes of limitation; (3) Maldonado's claims are barred by a class action waiver; and (4) and Runnels' and Maldonado's claims are barred by arbitration provisions. The Plaintiff responds that due to evidentiary disputes the Defendant's futility arguments would be more properly addressed through dispositive motions. Having carefully considered the relevant filings, Judge Romero finds that oral argument is not necessary and decides the matter on the basis of written memoranda. She agrees that the Defendant's futility arguments would be more properly addressed in the context of dispositive motions rather than the instant Motion to Amend. She says, the Defendant's arguments regarding the enforceability of the arbitration provision as to Penhall in the Motion to Dismiss are duplicative of the arguments in the opposition to the Motion to Amend as to Runnels and Maldonado. The Defendant acknowledges in its opposition that Runnels and Maldonado "are subject to the same kind of arbitration challenge as Penhall" and note that they intend to file a renewed motion to compel arbitration if leave to amend is granted. As to the Defendant's remaining futility arguments, the Judge finds that numerous factual disputes prevent the court from reaching issues relating to waiver and statutes of limitations at this early stage of the case. She declines to consider the evidence appended to the Defendant's opposition in an attempt to resolve factual disputes that would be more properly resolved in the context of dispositive motions. She therefore rejects the Defendant's futility arguments. As Plaintiff correctly notes, the Defendant's only ground for opposing amendment is futility. Judge Romero agrees that no other grounds for refusing leave to amend are applicable. Granting leave to amend would not result in undue prejudice to the Defendant given that the case is in its early stages, and there is no evidence of undue delay or bad faith on the part of the Plaintiff. Accordingly, the Judge concludes that justice requires granting the Plaintiff leave to amend. For the foregoing reasons, Judge Romero grants the Plaintiff's Motion to Amend. The Plaintiff will file a Second Amended Complaint within seven days. A full-text copy of the Court's Aug. 24, 2021 Memorandum Decision & Order is available at https://tinyurl.com/4n5vwzuz from Leagle.com. Asbestos Litigation ASBESTOS UPDATE: Metropolitan Life Faces 1,304 New PI Claims ------------------------------------------------------------ Metropolitan Life Insurance Company is and has been a defendant in a large number of asbestos-related suits filed primarily in state courts, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "For the six months ended June 30, 2021 and 2020, Metropolitan Life Insurance Company received approximately 1,304 and 1,121 new asbestos-related claims, respectively. The number of asbestos cases that may be brought, the aggregate amount of any liability that Metropolitan Life Insurance Company may incur, and the total amount paid in settlements in any given year are uncertain and may vary significantly from year to year. "These suits principally allege that the plaintiff or plaintiffs suffered personal injury resulting from exposure to asbestos and seek both actual and punitive damages. Metropolitan Life Insurance Company has never engaged in the business of manufacturing, producing, distributing or selling asbestos or asbestos-containing products nor has Metropolitan Life Insurance Company 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 Metropolitan Life Insurance Company's employees during the period from the 1920's through approximately the 1950's and allege that Metropolitan Life Insurance Company 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. Metropolitan Life Insurance Company 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 Metropolitan Life Insurance Company. Metropolitan Life Insurance Company 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/2Wm7JQ4 ASBESTOS UPDATE: Scotts Miracle-Gro Faces Claims Alleging Injuries ------------------------------------------------------------------ The Scotts Miracle-Gro Company has been named as a defendant in a number of cases alleging injuries that the lawsuits claim resulted from exposure to asbestos-containing products, apparently based on the Company's historic use of vermiculite in certain of its products, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. In many of these cases, the complaints are not specific about the plaintiffs' contacts with the Company or its products. The cases vary, but complaints in these cases generally seek unspecified monetary damages (actual, compensatory, consequential and punitive) from multiple defendants. The Company believes that the claims against it are without merit and is vigorously defending against them. No accruals have been recorded in the Company's consolidated financial statements as the likelihood of a loss is not probable at this time and the Company does not believe a reasonably possible loss would be material to, nor the ultimate resolution of these cases will have a material adverse effect on, the Company's financial condition, results of operations or cash flows. There can be no assurance that future developments related to pending claims or claims filed in the future, whether as a result of adverse outcomes or as a result of significant defense costs, will not have a material 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/3jhN6gw ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2021. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***