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/raid1/www/Hosts/bankrupt/CAR_Public/211104.mbx C L A S S A C T I O N R E P O R T E R Thursday, November 4, 2021, Vol. 23, No. 215 Headlines A2 MILK: May Face Second Investors Class Action Lawsuit A2 MILK: Shine Lawyers Investigate Shareholder Class Action ACUITY BRANDS: Term Sheet for Settlement of Securities Suit Entered ADAMAS PHARMA: Monteverde & Associates to Probe After Merger AMERICAN EXPRESS: Continues to Defend Marcus Corp Antitrust Suit AMERICAN EXPRESS: Oliver Putative Class Action Underway AMERICAN EXPRESS: Ruling in Anti-Steering Rules Litigation Appealed AON HEWITT: Jackson Lewis Attorneys Discuss Class Action Ruling APPHARVEST INC: Kahn Swick Reminds of Nov. 23 Deadline APPLE INC: Faces Class Suit Over iTunes Purchased Content Removal AQUA METALS: February 3, 2022 Settlement Fairness Hearing Set ARCHER-DANIELS: Suits Over Ethanol Futures Price-Fixing Underway ARMOUR RESIDENTIAL: Court Defers Dismissal Order of Javelin Suit AUSTRALIA: Court OKs Bond Climate Change Disclosure Class Action AZRIELI E-COMMERCE: Barnea Jaffa Attorneys Discuss Court Ruling BAKER HUGHES: Continues to Defend Consolidated Shareholder Suit BAYERISCHE MOTOREN: Direct Buyers' Antitrust Suit Dismissal Upheld CALIFORNIA: Court Dismisses Mitchell Prisoner Suit v. Warden Cueva COLUMBIA PROPERTY: Monteverde & Associates to Probe After Merger COMMUNITY CHILD: Del Castillo's $317.5K Class Deal Wins Final Nod CREDIT ONE: Wins Bid to Compel Arbitration in Jefferson TCPA Suit DBV TECH: 3rd Amended Complaint Filed in Travis Ito-Stone Case EARGO INC: Frank R. Cruz Law Reminds of December 6 Deadline EARGO INC: Gross Law Firm Reminds of December 6 Deadline EARGO INC: Rosen Law Firm Reminds of December 6 Deadline ECHO GLOBAL: Suit over Employee Classification Still Pending EDGECOMBE COUNTY, NC: Claims in Myrick Unpaid Wages Suit Narrowed EQUILON ENTERPRISES: Court Grants Dimercurio Leave to Amend Suit FACEBOOK INC: Robbins Geller Reminds of December 27 Deadline FIRST AMERICAN: Continues to Defend Putative Class Suits GENERAL MOTORS: Court Narrows Heater's Defective Engine Claims GEO GROUP: Owes Detainees $17 Million in Back Pay, Jury Says GREAT AMERICAN: Delaware Court Dismisses Rodriguez Class Suit HAWAI'I: District Court Dismisses Pelekai Suit Without Prejudice HEALTHCARE SERVICES: Jan. 10, 2022 Settlement Approval Hearing Set HELLOFRESH SE: Settles TCPA Class Action for $14 Million HIGHLAND INDUSTRIES: Tillman Appeals Class Certification Bid Denial HONEYWELL INTERNATIONAL: Continues to Defend Kanefsky Class Suit HYZON MOTORS: Hagens Berman Reminds of November 29 Deadline ILLINOIS: 7th Cir. Affirms Summary Judgment in Minerly v. Nalley ILLINOIS: Parents Sue School Districts of Mask Requirements INCOME PROPERTY: Rosemont Court Resident Files Class Action INNOVAGE HOLDING: Hagens Berman Reminds of Dec. 13 Deadline INSTACART: Shoppers Labor Class Action Pending in Canada INTEL CORP: Bid to Nix Class Suit Over 7nm Product Delays Pending INTEL CORP: Spectre and Meltdown Virus-Related Suits Underway INTERHEALTH NUTRACEUTICALS: Woodard Appeals Ruling in Fraud Suit ITS TECHNOLOGIES: Ortega's Bid to Remand Suit to State Court Denied JOHNSON & JOHNSON: Wayne Township to Participate in Settlement JP MORGAN: Behrens Appeals Ruling in RICO Suit to 2nd Circuit JUAN BARCENAS: Court Conditionally Certifies Class in Tremols Suit KRATON CORP: Monteverde & Associates Probes Firm After Merger KUNG FU LITTLE: Appeals Judgment in Weng FLSA Suit to 2nd Circuit LAS VEGAS SANDS: Bid to Dismiss Daniels Family Trust Suit Pending LIGHTNING EMOTORS: Bronstein Gewirtz Reminds of Dec. 14 Deadline LIGHTNING EMOTORS: Schall Law Firm Reminds of Dec. 14 Deadline MASSAGE ENVY: Appeals Court Vacates Approval of $10MM Settlement MASSAGE ENVY: Settlement Approval in McKinney-Drobnis Suit Vacated MAXIMUS FEDERAL: Summary Judgment Bid in Bodor FDCPA Suit Denied MYLAN INC: Rochester May Amend Complaint Over Epinephrine Monopoly NANO-X IMAGING: Levi & Korsinsky Reminds of December 6 Deadline NEW YORK: Appeals Ruling in Diamond NYCHA Tenants' Suit NIBCO INC: Class Settlement in Matson Suit Wins Final Approval OLIN CORP: Suits Against Unit Over Sale of Caustic Soda Underway OLIN CORP: Unit Defends Suits Over Sale of Caustic Soda in Canada OWLET INC: Glancy Prongay Investigates Securities Claims PEAK FINTECH: Rosen Law Discloses Probe for Potential Class Action PHILADELPHIA, PA: Cardona Has Leave to Proceed in Forma Pauperis QUEST DIAGNOSTICS: Bid to Dismiss AMCA Data Security Suit Pending QUEST DIAGNOSTICS: Loses Bid to Junk Consolidated ERISA Suit RECONNAISSANCE ENERGY: Robbins Geller Reminds of Dec. 27 Deadline RESTAURANT BRANDS: Latifi Suit Against TDL Group Underway RESTAURANT BRANDS: Suits Over Data Collection Underway in Canada RESTAURANTS BRANDS: Denial of Bid to Amend Complaint Under Appeal ROYAL FINANCIAL: Monteverde & Associates to Probe After Merger SE TRAINS: Class Action Against Rail Franchises Can Proceed SEI INVESTMENTS: Suits Over SPTC Services to Stanford Trust Ongoing SERVICE EMPLOYEES: 9th Cir. Affirms Dismissal of Hamidi Class Suit SERVICE EMPLOYEES: Ninth Circuit Affirms Dismissal of Gabriele Suit SERVICE EMPLOYEES: Ninth Circuit Affirms Dismissal of Penning Suit SOUTH CAROLINA: Blair's Civil Rights Suit Dismissed With Prejudice SPIRIT AIRLINES: Faces Class Action Over Breach-of-Contract STATE STREET: Faces Edmar Financial Class Suit STATE STREET: Gomes Putative Class Action Underway STATE STREET: Settlement Reached in Suit Over Invoicing Practices T-MOBILE USA: $2M Class Settlement in Chetwood Suit Wins Final OK TEN BRIDGES: W.D. Washington Narrows Claims in Taie Class Suit TESLA INC: Trial in Stockholder Class Suit Set for April 2022 TESLA INC: Trial on Twitter Post Related Suit Set for May 2022 TRINET GROUP: 401(k) Plan-Related Class Suit Underway UNITED AIR: Judge Blocks Plan to Put Unvaxxed Employees on Leave UNITED STATES SMALL: Prestige Appeals Loan Denial Suit Dismissal UNITED STATES: 9th Cir. Flips Prelim. Injunction in Fraihat v. ICE UNITED STATES: Seeks 9th Cir. Review in Roman Habeas Corpus Suit UNIVERSITY OF TAMPA: Court Narrows Claims in D'Amario Class Suit WALMART INC: Former Pharmacist Awarded $27MM in Class Action WSP2 LLC: $13K in Attys.' Fees & Costs Awarded in Rorie FLSA Suit [*] Australian Gov't Proposes Major Class Action Law Reforms [*] Australians Willing to Join Class Action for $5,000 Payout ********* A2 MILK: May Face Second Investors Class Action Lawsuit ------------------------------------------------------- Carrie LaFrenz, writing for Australian Financial Review, reports that the a2 Milk Company may face a second class action claim after Shine Lawyers launched an investigation on behalf of investors who bought shares between August 19, 2020, and May 7, 2021. Law firm Slater and Gordon has already filed a class action against the dual-listed company on behalf of investors who bought shares over that nine-month period during which the infant-formula maker posted four earnings downgrades and the shares plunged 62 per cent. Shine class actions practice leader Craig Allsopp said a2 Milk reported earnings 20 per cent lower than expected in fiscal 2021, resulting in the major drop in share price. Mr Allsopp said a2 Milk might have breached the Corporations Act by engaging in misleading and deceptive conduct. "We believe a2 Milk did not have a reasonable basis for its sale forecast and knew or ought to have known its predicted profit margins were not going to be realised," he said. Mr Allsop said the company was also alleged to have breached continuous disclosure obligations by failing to inform shareholders of its future trade plans. "A2 Milk tried to boost sales by promoting its English label baby formula online, but this backfired by causing a decline in sales among daigou or Chinese consumers in Australia, who buy the product in stores and mail it to family overseas," he said. "Investors deserve to be compensated for their losses given we say the company's conduct is to blame." Denies liability Following a call from The Australian Financial Review, a2 Milk put out a statement to the ASX saying it was not aware of any legal proceeding having been filed by Shine. "As previously noted, the company considers that it has at all times complied with its disclosure obligations, denies any liability and will vigorously defend the proceedings. The company will respond further if and when any such legal proceedings are commenced," it said. The stock fell 3.1 per cent to $7.16 each by 12:30 AEDT. On October 27, a2 Milk will hold an investor day when new CEO David Bortolussi will reveal his China business strategy. Mr Bortolussi is tipped to update the market on infant formula innovation, progress on SAMR licensing, and even possibly reveal plans to enter new dairy categories. Credit Suisse analysts also expect there may be considerations to exit US loss-making operations, and a2 Milk will outline plans for its Mataura Valley manufacturing facility. A2 Milk flagged a review of this key China market in tandem with a blowout of more than $NZ100 million ($92.9 million) in provisions for old stock on May 10. CS analysts Larry Gandler and Bradley Beckett noted a2 Milk was tackling its issues, but the industry was consolidating and the company remains a takeover target. The pair has an 'underperform' rating. They believe the stock is overvalued given its recent rally. It is now trading on a P/E of 32 x 2023 full-year earnings. "A2M's P/E rating -- generally reserved for growth companies in growth industries -- is exceptional considering that Danone's management just stated on its 3Q investor call that the China infant formula category is negative in volume and also year-to-date slightly negative in value," they said. Infant formula stock P/Es have been declining since December 2020, given China's falling birth rate, which is further exacerbated by the COVID-19 vaccination program. [GN] A2 MILK: Shine Lawyers Investigate Shareholder Class Action ----------------------------------------------------------- Shine Lawyers is investigating a class action on behalf of shareholders who suffered losses after acquiring A2 Milk shares (A2M) on the ASX following a 62% drop in market value in FY21. If you acquired A2M shares between 19 August 2020 and 7 May 2021, you may be eligible to join this class action. What is the A2 Milk Class Action Investigation about? The class action alleges that between 19 August 2020 and 7 May 2021, A2M engaged in misleading and deceptive conduct, breaching its continuous disclosure obligations, and failing to adequately disclose future trade plans. It is further alleged that by 19 August 2020, A2M was, or ought to have been aware that their FY21 guidance, and subsequent representations, did not adequately take into account a number of factors known to A2M which ultimately impacted the Company's financial performance, resulting in a 62% drop in market value in FY21. These factors include: The decline in daigou or reseller sales, which fell due to the impact of A2M's sales through its Cross Border e-Commerce Channel (CBEC). This saw A2M heavily market English labelled infant products directly into the Chinese market with discounting that effectively undercut their sales in the daigou or reseller channel; and The decline in the CBEC business due to the decline in daigou or reseller sales, as daigou sales often help stimulate demand for direct orders. If you acquired A2M shares between 19 August 2020 and 7 May 2021, you may be eligible to join this class action. Shine Lawyers intend to file this class action, pending the outcome of its investigation into alleged: Misleading and deceptive conduct Contraventions of continuous disclosure obligations by failing to withdraw the FY21 guidance and subsequent representations or to disclose other matters which adversely affected its ability to meet the guidance. [GN] ACUITY BRANDS: Term Sheet for Settlement of Securities Suit Entered ------------------------------------------------------------------- Acuity Brands, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on October 27, 2021, for the fiscal year ended August 31, 2021, that the parties in the consolidated class action suit entitled, In re Acuity Brands, Inc. Securities Litigation, Civil Action No. 1:18-cv-02140-MHC (N.D. Ga.), have entered a term sheet for settlement of the litigation, subject to documentation of the settlement and approval of the District Court after notice to class members. On October 5, 2021, the parties to the shareholder class action litigation previously disclosed executed a term sheet for settlement of the litigation, subject to documentation of the settlement and approval of the District Court after notice to class members. If the settlement is approved, the company expects that the agreed-upon settlement payment of $15.8 million will be funded entirely by applicable Directors and Officers liability insurance. As such, the company do not anticipate a significant net loss or cash outflow as a result of the settlement of this matter. The case was originally filed on January 3, 2018, in the United States District Court for the District of Delaware against the Company and certain of its officers on behalf of all persons who purchased or otherwise acquired the company's stock between June 29, 2016 and April 3, 2017. On February 20, 2018, a different shareholder filed a second class action complaint in the same venue against the same parties on behalf of all persons who purchased or otherwise acquired our stock between October 15, 2015 and April 3, 2017. The cases were transferred on April 30, 2018, to the United States District Court for the Northern District of Georgia and subsequently were consolidated as In re Acuity Brands, Inc. Securities Litigation, Civil Action No. 1:18-cv-02140-MHC (N.D. Ga.). On October 5, 2018, the court-appointed lead plaintiff filed a consolidated amended class action complaint, which supersedes the initial complaints. The Consolidated Complaint is brought on behalf of all persons who purchased the company's common stock between October 7, 2015 and April 3, 2017 and alleges that the company and certain of its former officers/executives violated the federal securities laws by making false or misleading statements and/or omitting to disclose material adverse facts that (i) concealed known trends negatively impacting sales of our products and (ii) overstated our ability to achieve profitable sales growth. The plaintiffs seek unspecified monetary damages, costs, and attorneys' fees. The company disputes the allegations in the complaints. The company filed a motion to dismiss the Consolidated Complaint. On August 12, 2019, the court entered an order granting the company's motion to dismiss in part and dismissing all claims based on 42 of the 47 statements challenged in the Consolidated Complaint but also denying the motion in part and allowing claims based on five challenged statements to proceed to discovery. The Eleventh Circuit Court of Appeals granted the Company permission to file an interlocutory appeal of the District Court's class certification order, and the briefing of that appeal has been completed. On October 7, 2021, the Eleventh Circuit Court of Appeals entered an order holding the appeal from the class certification order in abeyance pending a decision from the District Court concerning approval of the proposed settlement. Acuity Brands, Inc. provides lighting and building management solutions and services for commercial, institutional, industrial, infrastructure, and residential applications in North America and internationally. Acuity Brands, Inc. was founded in 2001 and is headquartered in Atlanta, Georgia. ADAMAS PHARMA: Monteverde & Associates to Probe After Merger ------------------------------------------------------------ Juan Monteverde, founder and managing partner at Monteverde & Associates PC, a national securities firm rated Top 50 in the 2018-2020 ISS Securities Class Action Services Report and headquartered at the Empire State Building in New York City, is investigating: Adamas Pharmaceuticals, Inc. (ADMS) relating to its proposed acquisition by Supernus Pharmaceuticals, Inc. Under the terms of the agreement, ADMS shareholders will receive $8.10 plus two contingent value rights collective worth $1.00 in cash per share they own. Click here for more information: http://monteverdelaw.com/case/adamas-pharmaceuticals-inc.It is free and there is no cost or obligation to you. [GN] AMERICAN EXPRESS: Continues to Defend Marcus Corp Antitrust Suit ---------------------------------------------------------------- American Express Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the company continues to defend itself against an antitrust class action lawsuit entitled, The Marcus Corporation v. American Express Co., et al. In July 2004, the company was named as a defendant in another putative class action filed in the Southern District of New York and subsequently transferred to the Eastern District of New York, captioned The Marcus Corporation v. American Express Co., et al., in which the plaintiffs allege an unlawful antitrust tying arrangement between certain of the company's charge cards and credit cards in violation of various state and federal laws. The plaintiffs in this action seek injunctive relief and an unspecified amount of damages. No further updates were provided in the Company's SEC report. American Express Company, together with its subsidiaries, provides charge and credit payment card products, and travel-related services to consumers and businesses worldwide. It operates through three segments: Global Consumer Services Group, Global Commercial Services, and Global Merchant and Network Services. American Express Company was founded in 1850 and is headquartered in New York, New York. AMERICAN EXPRESS: Oliver Putative Class Action Underway ------------------------------------------------------- American Express Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the company continues to defend a putative class action suit entitled, Anthony Oliver, et al. v. American Express Company and American Express Travel Related Services Company Inc. On January 29, 2019, the company was named in a putative class action brought in the United States District Court for the Eastern District of New York, captioned Anthony Oliver, et al. v. American Express Company and American Express Travel Related Services Company Inc., in which the plaintiffs are holders of MasterCard, Visa and/or Discover credit cards (but not American Express cards) and allege they paid higher prices as a result of our anti-steering and non-discrimination provisions in violation of federal antitrust law and the antitrust and consumer laws of various states. Plaintiffs seek unspecified damages and other forms of relief. The court dismissed plaintiffs' federal antitrust claim, numerous state antitrust and consumer protection claims and their unjust enrichment claim. The remaining claims in plaintiffs' complaint arise under the antitrust laws of 11 states and the consumer protection laws of six states. No further updates were provided in the Company's SEC report. American Express Company, together with its subsidiaries, provides charge and credit payment card products, and travel-related services to consumers and businesses worldwide. It operates through three segments: Global Consumer Services Group, Global Commercial Services, and Global Merchant and Network Services. American Express Company was founded in 1850 and is headquartered in New York, New York. AMERICAN EXPRESS: Ruling in Anti-Steering Rules Litigation Appealed ------------------------------------------------------------------- American Express Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the plaintiffs' appeal in the putative class action suit entitled, In re: American Express Anti-Steering Rules Antitrust Litigation (II), is still pending. A putative merchant class action in the Eastern District of New York, consolidated in 2011 and collectively captioned In re: American Express Anti-Steering Rules Antitrust Litigation (II), alleged that provisions in the company's merchant agreements prohibiting merchants from differentially surcharging the company's cards or steering a customer to use another network's card or another type of general-purpose card ("anti-steering" and "non-discrimination" contractual provisions) violate U.S. antitrust laws. On January 15, 2020, the company's motion to compel arbitration of claims brought by merchants who accept American Express and to dismiss claims of merchants who do not was granted. Plaintiffs have appealed part of this decision. No further updates were provided in the Company's SEC report. American Express Company, together with its subsidiaries, provides charge and credit payment card products, and travel-related services to consumers and businesses worldwide. It operates through three segments: Global Consumer Services Group, Global Commercial Services, and Global Merchant and Network Services. American Express Company was founded in 1850 and is headquartered in New York, New York. AON HEWITT: Jackson Lewis Attorneys Discuss Class Action Ruling --------------------------------------------------------------- Charles F. Seemann III, Esq., and James Wayne Barnett, Esq., of Jackson Lewis P.C., in an article for The National Law Review, report that on October 12, 2021, Aon Hewitt Investment Consulting, Inc. ("Aon") defeated a class action in the Western District of North Carolina brought by nearly 250,000 current and former Lowe's Companies, Inc. ("Lowe's") employees who were participants in Lowe's 401(k) retirement plan (the "Plan"). Plaintiffs alleged that Aon and Lowe's breached their fiduciary duties of loyalty and prudence under ERISA to the Plan by directing substantial Plan assets to Aon's proprietary investment products. Specifically, Plaintiffs asserted that Aon violated ERISA by limiting the menu of investment options available to the participants and by transferring more than $1 billion of Plan assets to its own proprietary fund, the Aon Growth Fund, which allegedly resulted in a substantial loss of investment gains. In April 2021, Lowe's reached a $12.5 million settlement with the Plan participants, leaving only Aon to stand trial. Aon managed the Plan from 2009 to 2016 and had selected the Aon Growth Fund as an investment option for Plan participants. In 2015, Aon transferred more than half of the Plan's total assets to the Aon Growth Fund which ultimately performed poorly, according to the participants. Consequently, Plaintiffs sued both Lowe's and Aon in 2018, alleging that their imprudent and disloyal actions cost the participants more than $100 million by shifting their investments to the Aon Growth Fund. Plaintiffs further accused Aon of recommending its proprietary fund to Lowe's for its own financial interests. Following a five-day bench trial, U.S. District Judge Kenneth Bell ruled in favor of Aon on all claims, concluding that "Aon acted loyally and prudently with respect to its recommendations to change the plan's investment choices -- which were consistent with its industry research and the thinking of other financial consultants -- as well as its selection and retention of the Aon Growth Fund in the plan, which was similarly reasonable based on Aon's investment expertise and legitimate strategic choices." In so holding, Judge Bell opined that Aon "did not breach its fiduciary duty as an investment advisor to the plan in proposing and encouraging Lowe's to change the plan's investment structure and menu of investment options nor did it violate ERISA in its efforts to 'cross-sell' its delegated fiduciary services." In rejecting Plaintiffs' argument that Aon breached its fiduciary duty because its proprietary fund did not generate as much growth as other investment options, Judge Bell noted that Plaintiffs' "hindsight attacks" on Aon's alleged failure to consider alternative investments based on historical results were "unpersuasive," acknowledging that the "dynamics of the market could have changed at any time making the Aon Growth Fund not only reasonable but likely more profitable for plan participants." The court further recognized that the Aon Growth Fund was well-diversified and carried reasonable fees, making it an appropriate choice for the Plan. Based on these findings, the court rendered a bench judgment in Aon's favor. The case is Reetz v. Lowe's Cos., No. 5:18-cv-00075 (W.D.N.C. Oct. 12, 2021). [GN] APPHARVEST INC: Kahn Swick Reminds of Nov. 23 Deadline ------------------------------------------------------ Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors of pending deadlines in the following securities class action lawsuits: AppHarvest, Inc. (APPH) Class Period: 5/17/2021 - 8/10/2021 Lead Plaintiff Motion Deadline: November 23, 2021 SECURITIES FRAUD To learn more, visit https://www.ksfcounsel.com/cases/nasdaqgs-apph/ Hyzon Motors Inc. (NasdaqGS: HYZN, HYZNW) f/k/a Decarbonization Plus Acquisition Corporation (NasdaqGS: DCRB, DCRBU, DCRBW) Class Period: 2/9/2021 - 9/27/2021 Lead Plaintiff Motion Deadline: November 29, 2021 SECURITIES FRAUD To learn more, visit https://www.ksfcounsel.com/cases/nasdaqgs-hyzn/ Bristol-Myers Squibb Company (BMY) Class: Investors who received Contingent Value Rights ("CVRs") (BMY.RT) in exchange for their shares of Celgene Corporation (CELG) pursuant to Bristol-Myers' acquisition of Celgene on November 20, 2019 Lead Plaintiff Motion Deadline: December 6, 2021 MISLEADING PROSPECTUS To learn more, visit https://www.ksfcounsel.com/cases/nyse-bmy/ Eargo, Inc. (EAR) Class Period: 2/25/2021 - 9/22/2021 Lead Plaintiff Motion Deadline: December 6, 2021 SECURITIES FRAUD To learn more, visit https://www.ksfcounsel.com/cases/nasdaqgs-ear/ If you purchased shares of the above companies and would like to discuss your legal rights and your right to recover for your economic loss, you may, without obligation or cost to you, contact KSF Managing Partner, Lewis Kahn, toll-free at 1-877-515-1850, via email (Lewis.Kahn@KSFcounsel.com), or via the case links above. If you wish to serve as a Lead Plaintiff in the class action, you must petition the Court on or before the Lead Plaintiff Motion deadline. About KSF, whose partners include former Louisiana Attorney General Charles C. Foti, Jr., is one of the nation's premier boutique securities litigation law firms. KSF serves a variety of clients -- including public institutional investors, hedge funds, money managers and retail investors - in seeking to recover investment losses due to corporate fraud and malfeasance by publicly traded companies. KSF has offices in New York, California, Louisiana and New Jersey. To learn more about KSF, you may visit www.ksfcounsel.com. Contact: Kahn Swick & Foti, LLC Lewis Kahn, Managing Partner lewis.kahn@ksfcounsel.com 1-877-515-1850 1100 Poydras St., Suite 3200 New Orleans, LA 70163 [GN] APPLE INC: Faces Class Suit Over iTunes Purchased Content Removal ----------------------------------------------------------------- Ben Lovejoy, writing for 9to5Mac, reports that Apple is already facing a class-action lawsuit over the potential for iTunes purchased content removal, and it's now faced with another on the opposite side of the country. Both lawsuits make the same complaint: that the iTunes store wording says that you can "buy" or "rent" movies, while the reality is that you can only license them – and that license can be later withdrawn. iTunes purchased content removal There have been examples of people losing access to content purchased from iTunes, though these do appear to be edge cases. Similar complaints have been made about the fact that you don't actually own e-books purchased from Amazon. We reported in April that a judge gave the go-ahead to a class action lawsuit over this in California. In that case, it was over content that could not be re-downloaded. Apple is facing a putative class action in a federal courtroom in Sacramento, California, over the way customers can "buy" or "rent" movies, TV shows, and other content in the iTunes Store. While Apple had attempted to dismiss the lawsuit, a federal judge has denied this request. As reported by the Hollywood Reporter, David Andino, the lead plaintiff in this case, argues the "distinction is deceptive" and alleges that "Apple reserves the right to terminate access to what consumers have 'purchased.'" Another class action lawsuit Patently Apple reports that another case has been filed in the opposite side of the country. A new Class Action has been filed in the District Court for the Western District of New York, Buffalo Division, against Apple by Trenise McTyere and Lucille Clark for misleading consumers into believing it is selling them Digital Content on iTunes, even though it is only providing them with a license. The complaint further notes that "when a licensing agreement terminates for whatever reason, Apple is required to pull the Digital Content from the consumers' Purchased Folder and it does so without prior warning to the consumer [. . .] Except for content Defendant owns outright, the Digital Content purported to be sold on iTunes is licensed to Apple by the Digital Content's owner. These licensing arrangements mean that, unlike in a true sale, Defendant can never pass title to the purchasing consumer. Accordingly, when a licensing agreement terminates for whatever reason, Defendant is required to pull the Digital Content from the consumers' Purchased Folder and it does so without prior warning to the consumer. This particular case doesn't appear to be alleging any actual loss of content, only arguing that Apple is engaging in a deceptive practice by claiming that it "sells" content to customers. [GN] AQUA METALS: February 3, 2022 Settlement Fairness Hearing Set ------------------------------------------------------------- UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA In re Aqua Metals, Inc. Securities Litigation Civ. No. 4:17-cv-07142-HSG SUMMARY NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT, FINAL APPROVAL HEARING AND MOTION FOR ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: All Persons that during the period from May 19, 2016 through November 9, 2017, inclusive (the "Settlement Class Period"), purchased or otherwise acquired the common stock or options to purchase common stock of Aqua Metals, Inc. ("Aqua Metals") (the "Settlement Class"). PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY THE PROPOSED SETTLEMENT OF A CLASS ACTION LAWSUIT PENDING IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (THE "COURT"). PLEASE DO NOT CONTACT THE COURT, AQUA METALS, INC., OR ANY OTHER DEFENDANT, OR THEIR COUNSEL, REGARDING THIS NOTICE. ALL QUESTIONS ABOUT THIS NOTICE, THE PROPOSED SETTLEMENT, OR YOUR ELIGIBILITY TO PARTICIPATE IN THE PROPOSED SETTLEMENT SHOULD BE DIRECTED TO LEAD COUNSEL OR THE CLAIMS ADMINISTRATOR, WHOSE CONTACT INFORMATION IS PROVIDED BELOW. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the Court, that the Settlement Class in the above-captioned litigation (the "Action") has been preliminarily certified for the purposes of the proposed Settlement only. YOU ARE ALSO NOTIFIED that the Plymouth County Group (consisting of Plymouth County Retirement Association, Denis Taillefer, and his private company, 1103371 Ontario Ltd.) ("Lead Plaintiff"), on behalf of itself and the proposed Settlement Class, and the Defendants have reached a proposed settlement of the Action for $7 million, consisting of $6.5 million in cash and $500,000 in Aqua Metals common stock or cash (the "Settlement Amount"), that, if approved, will resolve all claims in the Action (the "Settlement"). A hearing (the "Final Approval Hearing") will be held before the Honorable Haywood S. Gilliam, Jr., United States District Court Judge for the Northern District of California, either via telephonic or video conference, or in Courtroom 2, 4th Floor, United States Courthouse, 1301 Clay Street, Oakland, California at 2:00 p.m. on February 3, 2022, to, among other things, determine whether: (i) the proposed Settlement should be approved by the Court as fair, reasonable, and adequate; (ii) the Action should be dismissed with prejudice against the Defendants, as set forth in the Stipulation of Settlement ("Stipulation"), dated July 2, 2021; (iii) the proposed Plan of Allocation for distribution of the Settlement Fund, and any interest earned thereon, less Taxes, Notice and Administration Costs, Litigation Expenses awarded by the Court, attorneys' fees awarded by the Court, and any other costs, expenses or amounts as may be approved by the Court (the "Net Settlement Fund"), should be approved as fair and reasonable; (iv) the application of Lead Counsel for an award of attorneys' fees and reimbursement of Litigation Expenses should be approved; and (v) the application for an award to pay the time and expenses of Lead Plaintiff should be approved. The Court may change the date of the Final Approval Hearing without providing another notice. You do NOT need to attend the Final Approval Hearing in order to receive a distribution from the Net Settlement Fund. IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS MAY BE AFFECTED BY THE PROPOSED SETTLEMENT AND YOU MAY BE ENTITLED TO SHARE IN THE NET SETTLEMENT FUND. If you have not yet received (i) the printed Notice of Pendency of Class Action and Proposed Settlement, Final Approval Hearing, and Motion for Attorneys' Fees and Reimbursement of Litigation Expenses ("Notice") or (ii) the Proof of Claim and Release Form ("Claim Form"), you may obtain a copy of those documents from the Settlement website www.AquaMetalsSecuritiesLitigation.com or by contacting the Claims Administrator: In re Aqua Metals, Inc. Securities Litigation Claims Administrator c/o A.B. Data, Ltd. P.O. Box 170125 Milwaukee, WI 53217 Telephone: (877) 777-9255 Please refer to the website for more detailed information and to review the Settlement documents. Inquiries other than requests for information about the status of a claim may also be made to Lead Counsel: Kristin Moody Berman Tabacco 44 Montgomery Street, Suite 650 San Francisco, CA 94104 Telephone: (415) 433-3200 Shannon L. Hopkins Levi & Korsinsky, LLP 1111 Summer Street, Suite 403 Stamford, CT 06905 Telephone: (203) 922-4253 If you are a potential Settlement Class Member, to be eligible to share in the distribution of the Net Settlement Fund, you must timely submit a valid Claim Form, which can be found on the website listed above, postmarked no later than January 18, 2022. If you are a potential Settlement Class Member and do not submit a valid Claim Form, you will not be eligible to share in the distribution of the Net Settlement Fund, but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you are a potential Settlement Class Member, but wish to exclude yourself from the Settlement Class, you must submit a written request for exclusion in accordance with the instructions set forth in the Notice, which can also be found on the website, postmarked no later than January 3, 2022. If you are a potential Settlement Class Member and do not timely exclude yourself from the Settlement Class, you will be bound by any judgments or orders entered by the Court in the Action. Any objections to the proposed Settlement, Plan of Allocation, Lead Counsel's application for attorneys' fees and reimbursement of Litigation Expenses, or the application for an award to pay the time and expenses of Lead Plaintiff must be submitted to the Court in accordance with the instructions set forth in the Notice and filed with the Court no later than January 3, 2022. DATED: October 20, 2021 THE HONORABLE HAYWOOD S. GILLIAM, JR. United States District Court Judge, United States District Court for The Northern District of California [GN] ARCHER-DANIELS: Suits Over Ethanol Futures Price-Fixing Underway ---------------------------------------------------------------- Archer-Daniels-Midland Company continues to defend several lawsuits alleging that the Company sought to manipulate benchmark price used to price and settle ethanol derivatives traded on futures exchanges. These actions are in pretrial proceedings, the ADM said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 26, 2021, for the quarterly period ended September 30, 2021. On September 4, 2019, AOT Holding AG (AOT) filed a putative class action under the U.S. Commodities Exchange Act in federal district court in Urbana, Illinois, alleging that the Company sought to manipulate the benchmark price used to price and settle ethanol derivatives traded on futures exchanges. On March 16, 2021, AOT filed an amended complaint adding a second named plaintiff Maize Capital Group, LLC. AOT and Maize allege that members of the putative class suffered "hundreds of millions of dollars in damages" as a result of the Company's alleged actions. On July 14, 2020, Green Plains Inc. and its related entities ("GP") filed a putative class action lawsuit, alleging substantially the same operative facts, in federal court in Nebraska, seeking to represent sellers of ethanol. On July 23, 2020, Midwest Renewable Energy, LLC ("MRE") filed a putative class action in federal court in Illinois alleging substantially the same operative facts and asserting claims under the Sherman Act. On November 11, 2020, United Wisconsin Grain Producers LLC ("UWGP") and five other ethanol producers filed a lawsuit in federal court in Illinois alleging substantially the same facts and asserting claims under the Sherman Act and Illinois, Iowa, and Wisconsin law. "The court granted ADM's motion to dismiss the MRE and UWGP complaints without prejudice on August 9, 2021 and September 28, 2021, respectively," the Company said. On August 16, 2021, the court granted ADM's motion to dismiss the GP complaint, dismissing one claim with prejudice and declining jurisdiction over the remaining state law claim. MRE filed an amended complaint on August 30, 2021, which ADM moved to dismiss on September 27, 2021. UWGP filed an amended complaint on October 19, 2021. The Company denies liability, and is vigorously defending itself in these actions. As these actions are in pretrial proceedings, the Company is unable at this time to predict the final outcome with any reasonable degree of certainty, but believes the outcome will not have a material adverse effect on its financial condition, results of operations, or cash flows. The Company is not currently a party to any legal proceeding or environmental claim that it believes would have a material adverse effect on its financial position, results of operations, or liquidity. The Archer-Daniels-Midland Company is an American multinational food processing and commodities trading corporation founded in 1902 and headquartered in Chicago, Illinois. ARMOUR RESIDENTIAL: Court Defers Dismissal Order of Javelin Suit ---------------------------------------------------------------- ARMOUR Residential REIT, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2021, for the quarterly period ended September 30, 2021, that the court deferred the order dismissal of the Javelin suit until February 1, 2022. Nine putative class action lawsuits have been filed in connection with the tender offer and merger for Javelin. All nine suits name Armour, the previous members of Javelin's board of directors prior to the Merger (of which eight are current members of Armour's board of directors) (the "Individual Defendants") and JMI Acquisition Corporation ("Acquisition") as defendants. Certain cases also name ACM and Javelin as additional defendants. The lawsuits were brought by purported holders of JAVELIN's common stock, both individually and on behalf of a putative class of JAVELIN's stockholders, alleging that the Individual Defendants breached their fiduciary duties owed to the plaintiffs and the putative class of JAVELIN stockholders, including claims that the Individual Defendants failed to properly value JAVELIN; failed to take steps to maximize the value of JAVELIN to its stockholders; ignored or failed to protect against conflicts of interest; failed to disclose material information about the Transactions; took steps to avoid competitive bidding and to give ARMOUR an unfair advantage by failing to adequately solicit other potential acquirors or alternative transactions; and erected unreasonable barriers to other third-party bidders. The suits also allege that Armour, Javelin, ACM and Acquisition aided and abetted the alleged breaches of fiduciary duties by the Individual Defendants. The lawsuits seek equitable relief, including, among other relief, to enjoin consummation of the Transactions, or rescind or unwind the Transactions if already consummated, and award costs and disbursements, including reasonable attorneys' fees and expenses. The sole Florida lawsuit was never served on the defendants, and that case was voluntarily dismissed and closed on January 20, 2017. On April 25, 2016, the Maryland court issued an order consolidating the eight Maryland cases into one action, captioned In re JAVELIN Mortgage Investment Corp. Shareholder Litigation (Case No. 24-C-16-001542), and designated counsel for one of the Maryland cases as interim lead co-counsel. On May 26, 2016, interim lead counsel filed the Consolidated Amended Class Action Complaint for Breach of Fiduciary Duty asserting consolidated claims of breach of fiduciary duty, aiding and abetting the breaches of fiduciary duty, and waste. On June 27, 2016, defendants filed a Motion to Dismiss the Consolidated Amended Class Action Complaint for failing to state a claim upon which relief can be granted. A hearing was held on the Motion to Dismiss on March 3, 2017, and the Court reserved ruling. On September 27, 2019, the court further deferred the matter for six months. On June 15, 2020, co-counsel for the plaintiff filed a notice of supplemental authority requesting to move the matter forward. On August 19, 2020, a Notification To Parties of Contemplated Dismissal was sent out by the Clerk of the Circuit Court to all parties. Counsel for the plaintiff responded on August 24, 2020, with a Motion to Defer Dismissal, and the court deferred dismissal until May 10, 2021. A Motion to Defer Dismissal Further was not filed; however, on August 16, 2021, the court ordered that (i) entry of an Order of Dismissal is further deferred until February 1, 2022 and (ii) if the case is not fully disposed of by that date, the clerk shall enter on the docket "dismissed for lack of prosecution without prejudice." No further action has been taken by the court. Each of ARMOUR, JAVELIN, ACM and the Individual Defendants intends to defend the claims made in these lawsuits vigorously; however, there can be no assurance that any of ARMOUR, JAVELIN, ACM or the Individual Defendants will prevail in its defense of any of these lawsuits to which it is a party. An unfavorable resolution of any such litigation surrounding the Transactions may result in monetary damages being awarded to the plaintiffs and the putative class of former stockholders of JAVELIN and the cost of defending the litigation, even if resolved favorably, could be substantial. Due to the preliminary nature of all of these suits, ARMOUR is not able at this time to estimate their outcome. ARMOUR Residential REIT, Inc. invests in residential mortgage-backed securities in the United States. The company is managed by ARMOUR Capital Management LP. The company was founded in 2008 and is based in Vero Beach, Florida. AUSTRALIA: Court OKs Bond Climate Change Disclosure Class Action ---------------------------------------------------------------- Kevin LaCroix, writing for The D&O Diary, reports that an Australian Federal Court class action lawsuit alleging that the Australian Federal Government failed to disclose to investors the climate change risks associated with the government's sovereign bonds has survived in part an attempt by the government to have the action dismissed. In an October 8, 2021 Judgment (here), a Federal Court of Australia Judge "declined to strike-out" the applicant's claim based on allegations of misleading or deceptive conduct, while agreeing with the government to "strike-out" others of the applicant's claims, as discussed below. The court's rulings in this case arguably represent something of a milestone in the development of climate change-related litigation. Background As discussed in detail here, in July 2020, Kathleen O'Donnell, a then-23 year-old student, filed an action in the Victoria Registry of the Federal Court of Australia on her own behalf and as representative for investors who purchased certain designated exchange-traded Australian Government Bonds at any time since July 7, 2020. O'Donnell, the applicant, named as respondents the Australian Government and two government officials. The lawsuit asserts three claims based on allegations that the bonds face material climate-change related risks that the applicant asserts should have been disclosed in the bond offering documents: first, a "misleading or deceptive conduct claim" against the government, based on alleged violations of Section 12DA(1) of the Australian Securities and Investments Commission Act of 2001; second, a "disclosure duty claim" against the government, based on the allegation that the respondents violated their fiduciary duty of utmost candor and honesty to investors; and third, a claim against the two government officials alleging that they violated their duties under the Public Governance, Performance and Accountability Act of 2013 (PGPA). The climate change risks the applicant claims the government should have disclosed in the bond offering documents include the existence, nature, and extent of physical risks (such as increased temperature, droughts, and bushfires); of transition risks (such as increased exposure to stranded assets and legal action); and of risks of sovereign response to climate change (such as for example treaty requirements). These various omissions, the applicant asserts, were material to investors' decisions to purchase or trade in the bonds. Acting in a representative capacity, the applicant seeks judicial declarations that between July 7, 2020 and August 6, 2021 the government breached its disclosure duties through its failure to disclose material climate change information; and that the two government officials violated their duties under the PGPA. Acting in an individual capacity, the applicant sees to enjoin the government and the two officials from further promoting the bonds or issuing further bonds until the government provides disclosure in such form as the court deems necessary to inform the applicant and investors concerning material climate change information. The government filed an application to the court seeking orders to strike-out the applicant's Amended Statement of Claim and to refuse leave to the applicant to file a proposed further Amended Statement of Claim. The October 8, 2021 Judgment In a very October 8, 2021 Judgment, Federal Court of Australia Judge Bernard Murphy issued three rulings; first, he refused the respondents' application for an order that the proceeding not proceed as a representative proceeding; second, he granted the application for an order to strike-out the disclosure duty and PGPA Act claims, on the grounds that the applicant has no standing to bring them; and third, he declined to strike-out the misleading or deceptive conduct claim. As a result of Judge Murphy's determination, the proceeding will not go forward as to the two government officials the applicant had named as respondents, but the proceeding will go forward as to the government itself - but only with respect to the applicant's misleading or deceptive conduct claim, not as to the other claims that the applicant had sought to assert. With respect to the misleading conduct claim, Judge Murphy did say that the pleading "will require improvement as the proceeding progresses," commenting further that he "consider it sufficient for the case to go forward at this stage," as it "meets the primary purpose of a pleading by putting them on notice of the case they must meet." The applicant, Judge Murphy said, "will be directed to put on a revised pleading after discovery." Discussion Even though Judge Murphy granted the respondents' application to strike two of the applicant's substantive claims, the applicant's third claim for misleading or deceptive conduct will go forward as to the government. For even just the one claim to survive the initial pleading hurdle is a very significant development, and not just for purposes of the immediate proceeding. This development could have significant implications both in Australia itself and in other jurisdictions as well with respect to climate change related disclosures in connection with government-issued sovereign bonds. A law firm memo published when the applicant first filed her proceeding noted that her action was "the first-of-its kind worldwide" in that it represents a climate change disclosure action against a sovereign government. The applicant's success in surviving the initial pleading hurdle, if only in part, may hearten activists and prospective claimants elsewhere, as they seek to use legal claims and liability actions to advance climate change-related agenda. The applicant's proceeding is of course based on Australian law, and the bases of the claims may not translate into the applicable laws of other jurisdictions. In addition, the claims against the government officials did not survive, which may cast doubt on the viability of pursuing climate change-related disclosure claims directly against government officials. Nevertheless, the survival of even just one of the applicant's claims in this action arguably is a milestone event. Climate change activists around the world have been experimenting with different type of claims and different types of legal theories to try to identify approaches that might permit them to use legal proceedings to leverage action on climate change-related issues. The survival of this lawsuit may suggest ways that activists can put pressure on governments for further climate change-related disclosure in connection with their sovereign bond offerings. Further, the possibility of this type of lawsuit could pressure governments to proactively address climate change issues in their bond offering documents. Another potential implication of this case that has to be considered is its potential significance for climate change litigation against companies. The transferability of the determinations in this action to corporate climate change related litigation may be limited. However, the court's ruling here could be a sort of a steppingstone on the path toward further climate change related litigation. If nothing else, the determinations in this case show that there is value for activists in continuing to experiment to try to find ways to use the courts to advance their climate change agenda; testing legal theories and procedural approaches could eventually identify means to press these kinds of issues in court. One final note about the developments in this Australian proceeding, and that is that this case is one more piece of evidence that climate change issues increasingly are moving to the top of the priorities list. The prospect of further litigation is only one factor; the likelihood of regulatory action (for example through ESG disclosure reforms of the type that are actively being considered by the SEC under Gary Gensler). If climate change activists are to be believed, pressure could also come in more immediate form -- such as through floods, hurricanes, droughts, wildfires, rising temperatures, coastal flooding, and other manifestations. [GN] AZRIELI E-COMMERCE: Barnea Jaffa Attorneys Discuss Court Ruling --------------------------------------------------------------- Omer Keydar, Esq., and Eyal Nachshon, Esq., of Barnea Jaffa Lande & Co., in an article for JDSupra, report that many class action proceedings end in settlement. The settlement agreement is designed, inter alia, to facilitate an efficient and fair resolution to the proceeding, in a manner that also provides certainty to the parties. Essentially, it "takes on the risk" for all parties involved -- the class action plaintiffs and their legal representation, the class, and the defendants. According to the law, a settlement agreement in a class action suit is subject to certification by the court. Often, the court grants this certification only after the relevant regulatory bodies have reviewed the settlement and after the class members have had the opportunity to comment on, or even object to, the settlement. Settlement certification by the court constitutes res judicata, and ensures the preclusion of repeated claims regarding the subject of the settlement. In one recent case, a plaintiff tried to be clever and filed a new class action suit against the defendant, following a prior class action proceeding that ended in settlement. The class action was against Azrieli E-Commerce Ltd., which operates the online shopping website owned by the Azrieli Group. In the original class action proceeding, the company was permitted the opportunity to remedy the flaws on its website within a period of several months, a time frame set by the court that certified the settlement. The new class action plaintiff sought to exploit the time window between the settlement's certification and the deadline for finalizing revisions to the website and hurried to a different court. The new plaintiff claimed there were violations on the company's website and that the original settlement agreement did not apply to him because he filed his suit only after the first proceeding ended in settlement (and before the revisions were completed). Eyal Nachshon and Omer Keydar of our firm represented Azrieli E-Commerce in the class action proceedings. They filed a motion to dismiss the second motion for class action certification, along with a motion to impose significant costs on the class action plaintiff. In its declaratory judgment, the court (Hon. Judge Amit Yariv presiding) dismissed the "new" motion for certification. The court held this was a frivolous lawsuit and strongly criticized the plaintiff. The court also imposed significant costs upon him. The court ruled that granting certification for such a frivolous proceeding would encourage the submission of "piggyback" lawsuits that seek to ride on the backs of proceedings already resolved. Moreover, encouraging such lawsuits has no justification, since they carry no real risk to the plaintiff (as decisions on the merits have already been made), no real use to the class members (as the general corrections have already been made), nor any creativity (as someone else already identified the claim, drafted the motions, and presented the data). The court added, "Frivolous lawsuits, such as the one filed here, cause harm: They impose a great financial burden on business corporations, a burden that may be rolled back onto consumers by way of raising prices. They impose a burden on courts, a burden that can delay the hearing of other cases. Worst of all, they harm the important consumer tool of class action suits, as they give the impression that such suits are designed only to enrich their plaintiffs." [GN] BAKER HUGHES: Continues to Defend Consolidated Shareholder Suit --------------------------------------------------------------- Baker Hughes Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the company continues to defend the consolidated class action suit by Tri-State Joint Fund and City of Providence. On August 13, 2019, Tri-State Joint Fund filed in the Delaware Court of Chancery, a shareholder class action lawsuit for and on the behalf of itself and all similarly situated public stockholders of Baker Hughes Incorporated against the General Electric Company (GE), the former members of the Board of Directors of Baker Hughes Incorporated ("BHI"), and certain former BHI Officers alleging breaches of fiduciary duty, aiding and abetting, and other claims in connection with the combination of BHI and the oil and gas business (GE O&G) of GE (the Transactions). On October 28, 2019, City of Providence filed in the Delaware Court of Chancery a shareholder class action lawsuit for and on behalf of itself and all similarly situated public shareholders of BHI against GE, the former members of the Board of Directors of BHI, and certain former BHI Officers alleging substantially the same claims in connection with the Transactions. The relief sought in these complaints include a request for a declaration that Defendants breached their fiduciary duties, an award of damages, pre- and post-judgment interest, and attorneys' fees and costs. The lawsuits have been consolidated, and plaintiffs filed a consolidated class action complaint on December 17, 2019 against certain former BHI officers alleging breaches of fiduciary duty and against GE for aiding and abetting those breaches. The December 2019 complaint omitted the former members of the Board of Directors of BHI, except for Mr. Martin Craighead who also served as President and CEO of BHI. Mr. Craighead and Ms. Ross, who served as Senior Vice President and Chief Financial Officer of BHI, remain named in the December 2019 complaint along with GE. The relief sought in the consolidated complaint includes a declaration that the former BHI officers breached their fiduciary duties and that GE aided and abetted those breaches, an award of damages, pre- and post-judgment interest, and attorneys' fees and costs. On or around February 12, 2020, the defendants filed motions to dismiss the lawsuit on the grounds that the complaint failed to state a claim on which relief could be granted. On or around October 27, 2020, the Chancery Court granted GE's motion to dismiss, and granted in part the motion to dismiss filed by Mr. Craighead and Ms. Ross, thereby dismissing all of the claims against GE and Ms. Ross, and all but one of the claims against Mr. Craighead. Baker Hughes siad, "At this time, we are not able to predict the outcome of the remaining claim." No further updates were provided in the Company's SEC report. Baker Hughes Company provides oilfield products and services. The Company engages in surface logging, drilling, pipeline operations, petroleum engineering, and fertilizer solutions, as well as offers gas turbines, valves, actuators, pumps, flow meters, generators, and motors. Baker Hughes serves oil and gas industries worldwide. The company is based in Houston, Texas. BAYERISCHE MOTOREN: Direct Buyers' Antitrust Suit Dismissal Upheld ------------------------------------------------------------------ In the case, In re: GERMAN AUTOMOTIVE MANUFACTURERS ANTITRUST LITIGATION. AUDUBON IMPORTS, LLC, DBA Mercedes Benz of Baton Rouge, et al., Plaintiffs-Appellants v. BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT, (BMW AG), et al., Defendants-Appellees, Case No. 20-17139 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the Direct Purchasers' consolidated class action complaint. The Appellants, a putative class of U.S. automobile dealers ("Direct Purchasers"), appeal the district court's dismissal of their consolidated class action complaint alleging that five German automakers and their American subsidiaries violated Section 1 of the Sherman Act, 15 U.S.C. Section 1. The Ninth Circuit reviews the district court's decision de novo. It explains that to survive a challenge under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Direct Purchasers' complaint had to plead "enough facts to state a claim to relief that was plausible on its face." The complaint needed to answer "basic questions," like "who, did what, to whom (or with whom), where, and when?" The Ninth Circuit holds that the district court properly dismissed the Direct Purchasers' claim alleging that the Defendants engaged in a no-arms-race conspiracy to allocate market share. It says, the Direct Purchasers' few specific examples of the Defendants' alleged collusion were either devoid of factual development, pertinent to technology "used predominantly in passenger vehicles sold in Europe," or simply too narrow to establish "an overarching conspiracy" to "restrict innovation on all, or most, aspects of vehicle development." Moreover, the allegations that the Defendants coordinated major product updates and refreshes "could just as easily suggest rational, legal business behavior by the defendants as they could suggest an illegal conspiracy." Dismissal of the Direct Purchasers' claim premised on a no-arms-race to allocate market share was therefore warranted. The district court also properly dismissed the Direct Purchasers' claim alleging that the Defendants conspired to pay higher prices for steel because the complaint did not plausibly allege a credible antitrust injury, the Ninth Circuit finds. It says, the Direct Purchasers alleged that they suffered antitrust injury in the form of inflated vehicle prices. But this overcharge theory is implausible because the Direct Purchasers have not alleged any facts suggesting that the price of the Defendants' vehicles increased while the alleged steel conspiracy was in effect or decreased after it ended. Moreover, the Ninth Circuit finds that the allegation that steel manufacturers "experienced 'squeezing margins'" after the alleged conspiracy was exposed does not support the Direct Purchasers' claim, particularly given that the market for steel is distinct from the market alleged in the case. The complaint's remaining allegations do not give rise to a plausible inference that the alleged steel conspiracy caused the Direct Purchasers to suffer antitrust injury. These allegations "could just as easily suggest rational, legal business behavior," or are too speculative to support a plausible antitrust injury. Thus, dismissal of the Direct Purchasers' claim based on an alleged steel conspiracy was proper. The Ninth Circuit further holds that district court properly dismissed the Direct Purchasers' claim alleging that the Defendants conspired to not develop electric vehicles. The complaint acknowledges that three Defendants "launched plug-in/hybrid vehicles" while the alleged conspiracy was in effect. And the complaint alleges a benign explanation for the Defendants' conduct: The "Defendants had already invested heavily in diesel engines" when the demand for low-emission vehicles began to rise. The Direct Purchasers' references to purported "plus factors" do not save their Section 1 claim from dismissal. Contrary to the Direct Purchasers' argument, "common motive does not suggest an agreement." The Defendants' conduct does not constitute an "extreme action against self-interest" because, as the complaint observes, a non-conspirator did not release its first all-electric vehicle until 2018. The Defendants' participation "in trade-organization meetings where information is exchanged and strategies are advocated does not suggest an illegal agreement." And the Direct Purchasers offer no explanation for how alleged violations of European law, arising from cars sold in Europe, render their claims under American law and relating to cars sold in the United States plausible. Indeed, no well-pleaded facts suggest that the Defendants' conduct in Europe affected American commerce. Dismissal of the Direct Purchasers' claim premised on an alleged agreement to not develop electric vehicles was proper. A full-text copy of the Court's Oct. 26, 2021 Memorandum is available at https://tinyurl.com/3534cx4z from Leagle.com. CALIFORNIA: Court Dismisses Mitchell Prisoner Suit v. Warden Cueva ------------------------------------------------------------------ In the case, GREGORY D. MITCHELL, Jr., Plaintiff v. DANIEL E. CUEVA, Warden, Defendant, Case No. 2:21-cv-1475-KJM-EFB P (E.D. Cal.), Magistrate Judge Edmund F. Brennan of the U.S. District Court for the Eastern District of California: (i) granted the Plaintiff's application to proceed in forma pauperis; and (ii) dismissed the Plaintiff's complaint with leave to amend. Introduction The Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. Section 1983. He has filed an application to proceed in forma pauperis. Application to Proceed In Forma Pauperis The Plaintiff's application makes the showing required by 28 U.S.C. Section 1915(a)(1) and (2). Accordingly, by separate order, Judge Brennan directs the agency having custody of the Plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. Section 1915(b)(1) and (2). Screening Order The Plaintiff purports to bring a class action on behalf of himself and other inmates sentenced to life without the possibility of parole for crimes committed when they were between the ages of 18 to 25. He claims that California Penal Code Section 3051(h) is being unconstitutionally applied to them in violation of their rights to due process and equal protection, and to be free from cruel and unusual punishment. Judge Brennan holds that the Plaintiff is proceeding pro se in the action and therefore cannot bring an action on behalf of his fellow inmates. He says, pro se litigants have no authority to represent anyone other than themselves; therefore, they lack the representative capacity to file motions and other documents on behalf of prisoners. Although a non-attorney may appear in propria person in his behalf, that privilege is personal to him. Further, it is well-established that a layperson cannot "fairly and adequately protect the interests of the class," as required by Rule 23(a)(4) of the Federal Rules of Civil Procedure. Accordingly, the Plaintiff's complaint is dismissed with leave to amend. Leave to Amend The Plaintiff is cautioned that any amended complaint must identify as a defendant only persons who personally participated in a substantial way in depriving him of his constitutional rights. The amended complaint must also contain a caption including the names of all Defendants. The Plaintiff may not change the nature of the suit by alleging new, unrelated claims. Nor, as he was warned above, may he bring multiple, unrelated claims against more than one defendant. Any amended complaint should be as concise as possible in fulfilling the above requirements. The Plaintiff should avoid the inclusion of procedural or factual background which has no bearing on his legal claims. He should also take pains to ensure that his amended complaint is as legible as possible. This refers not only to penmanship, but also spacing and organization. The Plaintiff should carefully consider whether each of the Defendants he names actually had involvement in the constitutional violations he alleges. A "scattershot" approach in which the Plaintiff names dozens of Defendants will not be looked upon favorably by the Court. Conclusion Accordingly, Judge Brennan granted the Plaintiff's application to proceed in forma pauperis. The Plaintiff will pay the statutory filing fee of $350. All payments will be collected in accordance with the notice to the California Department of Corrections and Rehabilitation filed concurrently therewith. Judge Brennan dismissed the Plaintiff's complaint with leave to amend within 30 days from the date of service of the Order. Failure to comply with any part of the Order may result in dismissal of the action. A full-text copy of the Court's Oct. 20, 2021 Order is available at https://tinyurl.com/4wuy2umb from Leagle.com. COLUMBIA PROPERTY: Monteverde & Associates to Probe After Merger ---------------------------------------------------------------- Juan Monteverde, founder and managing partner at Monteverde & Associates PC, a national securities firm rated Top 50 in the 2018-2020 ISS Securities Class Action Services Report and headquartered at the Empire State Building in New York City, is investigating: Columbia Property Trust, Inc. (CXP) relating to its proposed acquisition by Pacific Investment Management Company LLC. Under the terms of the agreement, CXP shareholders are expected to receive $19.30 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/columbia-property-trust-inc. It is free and there is no cost or obligation to you. [GN] COMMUNITY CHILD: Del Castillo's $317.5K Class Deal Wins Final Nod ----------------------------------------------------------------- In the case, MARIO DEL CASTILLO, et al., Plaintiff v. COMMUNITY CHILD CARE COUNCIL OF SANTA CLARA COUNTY, INC., et al., Defendants, Case No. 17-cv-07243-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, grants the Plaintiffs' Motion for Final Approval of Class Action Settlement; and their Motion for Attorneys' Fees, Costs, and Class Representative Enhancement Payments. Background Plaintiffs Mario Del Castillo, Puthea Chea, and Michael Rasche filed the action on Dec. 21, 2017, asserting violations of the Employee Retirement Income Security Act of 1974 ("ERISA"), on behalf of themselves and others similarly situated. Plaintiff Javier Cardoza was added to the case in an amended complaint. In the operative complaint, the Plaintiffs alleged that Defendants Community Child Care Council of Santa Clara County, Inc. ("4Cs"), its Board of Directors, Ben Menor, Xiaoyan Xu, Clarance Madrilejos, James McDaniel, Julienne La Fitte, Jaime Gallardo, and Faye Sears, in their official capacities as current and former trustees, and its former Executive Direct Alfredo Villasenor (collectively "4Cs Defendants"), along with Defendant Life Insurance Company of the Southwest ("LSW"), violated ERISA with their handling of 4Cs employee pension plans ("4Cs Plans"). The Plaintiffs alleged, inter alia, that the 4Cs Defendants had failed to keep required documentation of the 4Cs Plans and improperly purchased restrictive annuity accounts from Defendant Life Insurance Company of the Southwest, which led to damages to Plaintiffs, including the payment of withdrawal and transfer fees. Between the filing of the first complaint and the end of 2019, the parties went through three rounds of motions to dismiss. On Dec. 16, 2019, the Court granted LSW's motion to dismiss the Plaintiffs' Third Amended Complaint with one additional opportunity to amend as to LSW. On Jan. 8, 2020, the Court was informed that the parties had reached a settlement. On March 1, 2021, the Plaintiffs filed a Motion for Preliminary Approval of Class Action Settlement. The Court held a hearing on the Motion on April 22, 2021, where the Court requested revisions to the settlement agreement, notice, and proposed order. The Plaintiffs filed revised papers on May 27, 2021 and June 2, 2021. The Court held a hearing on the Motion and the revised papers on June 3, 2021, where it requested further revisions to the revised settlement agreement, notice, and proposed order. The Plaintiffs filed revised versions of the papers on June 10, 2021. The Court granted the Plaintiffs' motion for preliminary approval based on the revised papers on June 11, 2021. The Settlement Agreement defines the settlement class as follows: "All current and former participants and beneficiaries of the Plans at any time during the period Oct. 1, 1987 through and including Dec. 31, 2019, excluding the Individual Defendants." The Settlement Agreement defines "Plans" as "the 4Cs Defined Contribution Profit Sharing Plan (individually the 'Qualified Plan') and the 4Cs Non-qualified Deferred Compensation Pension Plan (individually the 'Non-qualified Plan'), together with their predecessors and successors, and any trust created under such plans." The Settlement Agreement provides for a Settlement Fund of $317,500. It also provides for attorneys' fees capped at $110,125, settlement administration expenses of approximately $6,250, attorney costs capped at $9,876, and an enhancement award of $5,000 to each of the four class representatives, for a total enhancement award of $20,000. After attorneys' fees, costs, settlement administrator expenses, and enhancement awards are deducted from the Settlement Fund, the Settlement Agreement provides that the remaining amount is to be used to reimburse the fees class members were required to pay to access funds in the LSW annuities. After the LSW fees are reimbursed, the Settlement Agreement provides that the remainder of the settlement amount is to be distributed to the remaining members, who can opt for a deposit into a retirement account or a direct payment. If there is more than $5,000 that cannot be distributed 30 days after the first distribution, the Settlement Agreement provides that the settlement administrator will make a second distribution to class members whose addresses are confirmed. If there is less than $5,000 following the second distribution, the Settlement Agreement provides that the remainder will be distributed to the cy pres recipient, East Bay Community Law Center. The Settlement Agreement indicates that the class members can opt out of the settlement by mailing a request to the Settlement Administrator 60 days after the mailing of the notice packet, or after an additional 10 days if the notice packet is remailed. The Settlement Agreement indicates that class members can object to the settlement by notifying the Court on the same timeline. In its motion for preliminary approval, the Class Counsel represented that there are approximately 145 putative class members. Following preliminary approval, the Class Counsel discovered that there are approximately 337 settlement class members -- more than double the original estimate. Since the Settlement Administrator Simpluris had based its bid on the Class Counsel's original estimate, they revised their bid for Settlement Administrator costs from $6,250 to $10,000. Following preliminary approval, the Settlement Administrator provided notice by mail to all but one -- 336 out of 337 -- settlement class members. No settlement class members opted out of the class, and no objections were filed with the Court. On Oct. 14, 2021, the Court heard both Motions. During the hearing, the Court indicated that paragraph 13 of the Declaration of Norman Alcantara In Support of Plaintiffs' Motion for Final Approval was misleading, because it lumped together (1) the amounts to be distributed to settlement class members that paid LSW surrender fees ("Fee Members") and (2) the amounts to be distributed to the remaining members of the settlement class who did not pay any LSW surrender fees ("Non-Fee Members"). The Court indicated that the Alcantara Declaration could lead Non-Fee Members to expect a higher recovery, since the average distribution for Fee Members is higher than it is for Non-Fee Members. On Oct. 14, 2021, the Plaintiffs filed a revised Alcantara Declaration breaking out distributions by Fee Members and Non-Fee Members: "All members of the settlement class who paid withdrawal fees will be reimbursed, and all members of the settlement class will receive at least $190.79. The highest estimated payment to reimburse withdrawal fees is $6,760.24 and the lowest estimated payment is $204.71. Settlement class members who were not reimbursed a withdrawal fee, or who had withdrawal fees lower than $190, will receive $190.79. " Before the Court are (1) the Plaintiffs' Motion for Final Approval of Class Action Settlement; and (2) the Plaintiffs' Motion for Attorneys' Fees, Costs, and Class Representative Enhancement Payments. No oppositions have been filed and there are no objectors. Judge Freeman held a hearing on the motions on Oct. 14, 2021. Discussion I. Motion for Final Approval of Class Action Settlement In order to grant final approval of the class action settlement, the Court must determine that (a) the class meets the requirements for certification under Federal Rule of Civil Procedure 23, and (b) the settlement reached on behalf of the class is fair, reasonable, and adequate. Judge Freeman finds that joinder of all the 337 class members would be impracticable under the circumstances of the case. The commonality requirement is met because the key issue in the case is the same for all class members -- whether the Defendants violated ERISA with their handling of the 4Cs Plans. The claims of the class representatives are typical of those of the Settlement Class, as they have been injured by the Defendants' ERISA violations and all assert the same claims and request the same damages. Finally, to determine the Plaintiffs' adequacy, there is no evidence of any conflict of interest that would preclude the Plaintiffs from acting as class representatives or their counsel from acting as the Class Counsel. Nor is there evidence that the Class Counsel has failed to vigorously litigate the action on behalf of the class. Now turning to Rule 23(b)(3), the "predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Jude Freeman finds that the common question in the case -- whether the Defendants violated ERISA in their handling of the 4Cs employee pension plans -- predominates over individual questions among the class members. Given the commonality and the number of class members, she concludes that the requirements of Rule 23 are met and thus that certification of the class for settlement purposes is appropriate. Because the notice reached nearly every settlement class member, Judge Freeman is satisfied that notice was adequate and that the class members were provided with the best notice practicable under the circumstances. And after considering the record, Judge Freeman finds that notice of the proposed settlement was adequate, the settlement is not the result of collusion, and that the settlement is fair, adequate, and reasonable. The Plaintiffs' Motion for Final Approval of Class Action Settlement is granted. II. Motion for Attorneys' Fees, Costs, and Class Representative Enhancement Payments The Plaintiffs seek an award of $110,125 in attorneys' fees, $9,645.55 in costs, a $20,000 service award, and $10,000 in settlement administration expenses. Judge Freeman first approves the $9,645.55 in costs. She has reviewed the Class Counsel's itemized lists of costs and finds that all of the expenses were necessary to the prosecution of the litigation. Second, Judge Freeman approves a $2,500 service award for each of the four class representatives, for a total service award of $10,000. She finds that the class representatives expended considerable effort that substantially benefitted the putative class prior to and throughout the case and settlement process. However, she finds the requested service award of $5,000 for each of the four class representatives to be excessive, particularly given that the Settlement Fund here is only $317,500. Lastly, given the reasonableness of the Settlement Administrator Fee increase (60%) after the settlement class size more than doubled, Judge Freeman finds that the $10,000 Settlement Administrator Fee is reasonable. Order For the foregoing reasons, Judge Freeman granted the Plaintiffs' Motions. The Court retains jurisdiction over the implementation and enforcement of the Settlement Agreement until each and every act agreed to be performed by the parties has been performed. Within 21 days after the distribution of the settlement funds, and payment of the enhancement payments, attorneys' fees and costs, the parties will file a post-distribution accounting in compliance with the Northern District Procedural Guidance for Class Action Settlements. A full-text copy of the Court's Oct. 20, 2021 Order is available at https://tinyurl.com/sbyuyjnh from Leagle.com. CREDIT ONE: Wins Bid to Compel Arbitration in Jefferson TCPA Suit ----------------------------------------------------------------- In the case, ADRIANE JEFFERSON, individually and on behalf of all others similarly situated, Plaintiff v. CREDIT ONE BANK, N.A., Defendant, Case No. 21 C 532 (N.D. Ill.), Judge Virginia M. Kendall of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted Credit One's motion to compel arbitration and dismiss the complaint for improper venue. Background Plaintiff Jefferson sues Credit One, individually and on behalf of a class of similarly-situated individuals, for violations of the Telephone Consumer Protection Act ("TCPA") 47 U.S.C. Section 227, et seq. On April 11, 2020, Jefferson applied for a line of credit on Credit One's website. During the application process, Credit One provided Jefferson with the Application Terms and Conditions, which alerted her to the existence of an agreement to arbitrate in the Cardholder Agreement. Plaintiff Jefferson was required to acknowledge these terms and conditions prior to submitting her credit application. Credit One approved Jefferson's application on April 19, 2020 and mailed her a credit card, along with a paper copy of a Cardholder Agreement. The card and agreement were not returned to Credit One as undeliverable and Jefferson does not dispute that she received them. The Cardholder Agreement explains: "You accept this Agreement when you use the Account." Credit One did not receive any communication from Jefferson indicating that she wished to opt out of the arbitration agreement. She activated her card and continued to use it between April and December 2020. After August 2020, however, Jefferson failed to make payments on her credit card for several months. In early December 2020, Credit One called Jefferson using pre-recorded messages to discuss her account and payment. Jefferson asked Credit One to stop calling her. Notwithstanding this directive, Credit One continued to call Jefferson using pre-recorded messages. On Jan. 29, 2021, Jefferson filed the instant suit claiming that these phone calls violated her rights under the TCPA. Before the Court is Credit One's motion to compel arbitration and dismiss the complaint for improper venue under Federal Rule of Civil Procedure 12(b)(3). Discussion Jefferson does not dispute that her dispute falls within the scope of the agreement or that she refused to arbitrate. The only dispute before the Court is whether a valid agreement to arbitrate exists. Determining whether an arbitration agreement exists is a matter of state law. There is no dispute that Credit One mailing Jefferson a credit card and a copy of a Cardholder Agreement constituted an offer to extend credit. Jefferson maintains, however, that because she did not sign the agreement, she never accepted the terms of that Agreement, including the arbitration agreement contained therein. Illinois law is clear, however, that "use of the card by the cardholder makes a contract between the cardholder and the issuer." There is no dispute that Jefferson used her credit card. Thus, by using the card Jefferson accepted the Cardholder Agreement's terms, including the arbitration provision, and she did so in consideration for Credit One's extension of credit. Plaintiff Jefferson argues that an arbitration provision contained within a lengthy agreement, like the one at hand, cannot constitute a "knowing and voluntary" waiver of her litigation and trial rights. At the beginning of the Cardholder Agreement, Credit One included a notice alerting the cardholder to the arbitration provision that follows and dedicated two pages of the 11-page Agreement to the arbitration provision. In addition, Credit One also notified Jefferson of the arbitration provision within the Cardholder Agreement at the time she applied for credit. The arbitration provision itself utilizes bold font, underlining, and capital letters to ensure it is not overlooked by the cardholder. Similar emphasizing formatting is used to alert the cardholder of her right to opt out of arbitration. Under these circumstances, Judge Kendall opines that there is no reason to infer Jefferson's waiver was unknowing or involuntary simply due to the length of the Agreement. The evidence before her supports a finding of a valid agreement to arbitrate that the Court is bound to enforce. Conclusion For the foregoing reasons, Judge Kendall granted Credit One's motion to compel arbitration and dismiss the complaint. A full-text copy of the Court's Oct. 20, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/3z5vdjmn from Leagle.com. DBV TECH: 3rd Amended Complaint Filed in Travis Ito-Stone Case -------------------------------------------------------------- DBV Technologies S.A. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 26, 2021, for the quarterly period ended September 30, 2021, that the Plaintiffs in the case, Travis Ito-Stone v. DBV Technologies, et al., Case No. 2:19-cv-00525, have filed a Third Amended Class Action Complaint. The class action complaint was originally filed on January 15, 2019 in the United States District Court for the District of New Jersey. The complaint, as amended, alleged that the Company and its former Chief Executive Officer, its current Chief Executive Officer, its former Deputy Chief Executive Officer, and its former Chief Business officer violated certain federal securities laws, specifically under Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated thereunder. "The plaintiffs seek unspecified damages on behalf of a purported class of persons that purchased the Company's securities between February 14, 2018 and August 4, 2020 and also held the Company's securities on December 20, 2018 and/or March 16, 2020 and/or August 4, 2020," the Company said. A hearing was held on July 29, 2021 in the U.S. District Court for the District of New Jersey where the Court entered an order granting the Company's Motion to Dismiss the Second Amended Class Action Complaint without prejudice. As the dismissal was without prejudice, the Plaintiffs replied their case by filing a Third Amended Class Action Complaint on September 30, 2021 in the same Court. The Company believes that the allegations contained in the amended complaint are without merit and will continue to defend the case vigorously. The Company believes this complaint will not have a material adverse effect on the Company's consolidated financial position, results of operations or liquidity. DBV Technologies SA is a publicly owned French biopharmaceutical firm headquartered in Bagneux, France. EARGO INC: Frank R. Cruz Law Reminds of December 6 Deadline ----------------------------------------------------------- The Law Offices of Frank R. Cruz on Oct. 20 disclosed that a class action lawsuit has been filed on behalf of persons and entities that purchased or otherwise acquired Eargo, Inc. ("Eargo" or the "Company") (NASDAQ: EAR) securities between February 25, 2021 and September 22, 2021, inclusive (the "Class Period"). Eargo investors have until December 6, 2021 to file a lead plaintiff motion. On August 12, 2021, after the market closed, Eargo revealed that claims submitted to the Company's largest third-party payor, which accounted for 80% of Eargo's accounts receivable, had not been paid since March 1, 2021. On this news, the Company's share price fell $8.00, or over 24%, to close at $24.70 per share on August 13, 2021, on unusually heavy trading volume. On September 22, 2021, after the market closed, Eargo revealed that "it is the target of a criminal investigation by the U.S. Department of Justice (the "DOJ") related to insurance reimbursement claims the Company has submitted on behalf of customers covered by federal employee health plans." Moreover, the DOJ is the "principal contact related to the subject matter of the [ongoing] audit" of Eargo by an insurance company that is the Company's largest third-party payor. As a result of the foregoing, Eargo withdrew its full year financial guidance. On this news, the Company's share price fell $14.81, or over 68%, to close at $6.86 per share on September 23, 2021, on unusually heavy trading volume. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that Eargo had improperly sought reimbursements from certain third-party payors; (2) that the foregoing was reasonably likely to lead to regulatory scrutiny; (3) that, as a result and because the reimbursements at issue involved the Company's largest third-party payor, Eargo's financial results would be adversely impacted; and (4) as a result, Defendants' statements about its business, operations, and prospects were materially false and misleading and/or lacked reasonable basis at all relevant times. If you purchased Eargo securities during the Class Period, you may move the Court no later than December 6, 2021 to ask the Court to appoint you as lead plaintiff. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you purchased Eargo securities, have information or would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Frank R. Cruz, of The Law Offices of Frank R. Cruz, 1999 Avenue of the Stars, Suite 1100, Los Angeles, California 90067 at 310-914-5007, by email to info@frankcruzlaw.com, or visit our website at www.frankcruzlaw.com. If you inquire by email please include your mailing address, telephone number, and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. [GN] EARGO INC: Gross Law Firm Reminds of December 6 Deadline -------------------------------------------------------- The securities litigation law firm of The Gross Law Firm issues the following notice on behalf of shareholders of Eargo, Inc. (NASDAQ: EAR). Shareholders who purchased shares of EAR during the class period listed are encouraged to contact the firm regarding possible Lead Plaintiff appointment. Appointment as Lead Plaintiff is not required to partake in any recovery. CONTACT US HERE: https://securitiesclasslaw.com/securities/eargo-inc-loss-submission-form/?id=20573&from=5 CLASS PERIOD: October 16, 2020 to September 22, 2021 ALLEGATIONS: The complaint alleges that during the class period, Defendants issued materially false and/or misleading statements and/or failed to disclose that: (1) Eargo had improperly sought reimbursements from certain third-party payors; (2) the foregoing was reasonably likely to lead to regulatory scrutiny; (3) as a result and because the reimbursements at issue involved the Company's largest third-party payor, Eargo's financial results would be adversely impacted; and (4) as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. DEADLINE: December 6, 2021 Shareholders should not delay in registering for this class action. Register your information here: https://securitiesclasslaw.com/securities/eargo-inc-loss-submission-form/?id=20573&from=5 NEXT STEPS FOR SHAREHOLDERS: Once you register as a shareholder who purchased shares of EAR during the timeframe listed above, you will be enrolled in a portfolio monitoring software to provide you with status updates throughout the lifecycle of the case. The deadline to seek to be a lead plaintiff is December 6, 2021. There is no cost or obligation to you to participate in this case. WHY GROSS LAW FIRM? The Gross Law Firm is nationally recognized class action law firm, and our mission is to protect the rights of all investors who have suffered as a result of deceit, fraud, and illegal business practices. The Gross Law Firm is committed to ensuring that companies adhere to responsible business practices and engage in good corporate citizenship. The firm seeks recovery on behalf of investors who incurred losses when false and/or misleading statements or the omission of material information by a company lead to artificial inflation of the company's stock. Attorney advertising. Prior results do not guarantee similar outcomes. The Gross Law Firm is committed to ensuring that companies adhere to responsible business practices and engage in good corporate citizenship. The firm seeks recovery on behalf of investors who incurred losses when false and/or misleading statements or the omission of material information by a Company lead to artificial inflation of the Company's stock. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: The Gross Law Firm 15 West 38th Street, 12th floor New York, NY, 10018 Email: dg@securitiesclasslaw.com Phone: (212) 537-9430 Fax: (833) 862-7770 [GN] EARGO INC: Rosen Law Firm Reminds of December 6 Deadline -------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of Eargo, Inc. (NASDAQ: EAR) between February 25, 2021 and September 22, 2021, inclusive (the "Class Period"), of the important December 6, 2021 lead plaintiff deadline. SO WHAT: If you purchased Eargo securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the Eargo class action, go to http://www.rosenlegal.com/cases-register-2162.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than December 6, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Eargo had improperly sought reimbursements from certain third-party payors; (2) the foregoing was reasonably likely to lead to regulatory scrutiny; (3) as a result and because the reimbursements at issue involved the Company's largest third-party payor, Eargo's financial results would be adversely impacted; and (4) as a result of the foregoing, defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the Eargo class action, go to http://www.rosenlegal.com/cases-register-2162.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] ECHO GLOBAL: Suit over Employee Classification Still Pending ------------------------------------------------------------ Echo Global Logistics, Inc. continues to defend an employee class action filed in March. No accrual has been made by Echo Global in the class action as of September 30, 2021, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 26, 2021, for the quarterly period ended September 30, 2021. The Company has received a letter alleging the Company violated both federal and state labor laws in classifying certain employees as exempt; and threatening to bring a class action lawsuit against the Company regarding this allegation. In March 2021, a class action lawsuit was formally filed against the Company in this matter. The Company disputes the claims and intends to vigorously defend the matter. "Given the preliminary stage of the matter, the Company cannot estimate the reasonable possibility or range of loss, if any, that may result from this matter and therefore no accrual has been made as of September 30, 2021," the Company said. Echo Global Logistics, Inc. provides a technology-enabled transportation and supply chain management solutions. EDGECOMBE COUNTY, NC: Claims in Myrick Unpaid Wages Suit Narrowed ----------------------------------------------------------------- In the case, JOEROAM MYRICK as an Individual and as Representative on behalf of all others similarly situated, Plaintiff v. CLEVELAND ATKINSON, JR., as Sheriff of Edgecombe County; COUNTY OF EDGECOMBE; and DOES 1 through 20, Inclusive, Defendants, Case No. 4:20-CV-139-FL (E.D.N.C.), Judge Louise W. Flanagan of the U.S. District Court for the Eastern District of North Carolina, Eastern Division: (i) granted in part and denied in part the Defendants' motion to dismiss for failure to state a claim; and (ii) denied as moot the Defendants' motion to stay proceedings pending resolution of potentially dispositive motions. Introduction The Plaintiff commenced the action on July 16, 2020, against his former employer, Defendant Atkinson, sheriff of Edgecombe County, North Carolina, and Defendant County of Edgecombe, asserting claims for unpaid wages under the Fair Labor Standards Act, 29 U.S.C. 201 et seq. ("FLSA"), the North Carolina Wage and Hour Act, N.C. Gen. Stat. Section 95-25.1 et seq. ("NCWHA"), and common law breach of contract. The Plaintiff also asserts claims on behalf of putative collective and class action members, who are similarly-situated current and former sheriff's deputies employed by defendant Atkinson. The Plaintiff seeks damages in the form of unpaid wages, back pay, pension impact losses, liquidated damages, penalties, interest, costs and fees, as well as injunctive relief, on behalf of himself and members of the putative collective and class actions. The Plaintiff filed the operative amended complaint, with leave of court, on April 30, 2021, asserting the same claims with additional factual allegations. The Defendants answered shortly thereafter, and they filed the instant motion to dismiss on July 27, 2021, followed by the instant motion to stay proceedings on Aug. 3, 2021. The Court held case activities in abeyance pending ruling on the motion to stay, and it invited the Plaintiff to file a consolidated response to both motions. The Plaintiff filed a consolidated response in opposition, and the Defendants replied in support of their motions. Background Defendant Atkinson is "the elected chief executive and administrative officer of the Edgecombe County Sheriff's office," and the "employer of all persons employed as sheriff's deputies for that office." "At all times relevant to the action, Defendant Atkinson was, through the financial support of Defendant Edgecombe, the employer duly authorized to employ all current and/or former sheriff's deputies to service Edgecombe County," including the Plaintiff. The Plaintiff was an employee of Defendant Atkinson, working as a deputy sheriff, a "non-exempt, hourly-paid employee." He "regularly worked in the Patrol and Civil Division as an hourly employee." He "was required to work an assigned work schedule with assigned work hours and to maintain accurate work records." He "was compensated on an hourly basis, and was only paid for the hours that he actually worked, unless he used accrued time (i.e., vacation, sick or other accrued time) to substitute for hours not worked during a pay period." The Plaintiff and other sheriff's deputies were regularly assigned to work, and worked, an average of 171 hours (or more) every 28-day work/payroll period. At the time of the Plaintiff's hire and throughout his employment, the Plaintiff was informed that he was an hourly non-exempt employee, and that he would be compensated at an hourly rate for all hours he worked during a pay period." The Plaintiff never received a flat or fixed monthly salary in compensation for his hours worked. The Plaintiff received a monthly paycheck, which amounted to 12 payments each year, for his work for Defendant Atkinson. He was required to turn in a time log at the end of each 28-day pay cycle to receive his hourly compensation. "Annually, the Plaintiff turned in 13 sets of time sheets for compensation. Annually, the Defendant made one payment to Plaintiff each of 12 months. At times the Plaintiff worked overtime hours during a pay period but was not paid for his overtime work. The Plaintiff was never compensated for at least 171 work hours each year that he worked. According to the complaint, Defendant Atkinson computed time in a strategic and planned manner that required employees to work without compensation at least 171 hours a year in violation of federal law. Analysis I. Motion to Dismiss 1. FLSA The Defendants argue that the Plaintiff's claim must be dismissed for failure to allege sufficient facts and on the basis of an alternative explanation for the Defendants' alleged conduct that renders the claim implausible. Judge Flanagan disagrees. The Plaintiff asserts a claim under the FLSA, 29 U.S.C. Section 216(b), for unpaid wages, including overtime wages. The Defendants argue that the Plaintiff does not allege sufficient facts to support a violation of the minimum wage or overtime provisions of the FLSA. Judge Flanagan holds that the Defendants argue that the Plaintiff does not allege sufficient facts to support a violation of the minimum wage or overtime provisions of the FLSA. First, she finds that the Defendants omit that the Plaintiff alleges that he was required to work "without compensation at least 171 hours a year." The Defendants do not demonstrate how application of Section 207(k) allowed the Plaintiff to work allegedly without compensation at least 171 hours a year. And while the Defendants may be able to demonstrate the legality of their pay practices on a more complete record, the allegations in the complaint coupled with an absence of any legal analysis do not permit a ruling in favor of the Defendants at this juncture. Therefore, the Defendants' motion to dismiss in this part is denied, and the Plaintiff is allowed to proceed with his FLSA claim. 2. NCWHA The Defendants argue that the Plaintiff's NCWHA claim is barred by the exclusion in N.C. Gen. Stat. Section 95-25.14(d). They argue that a claim under the alleged circumstances is not stated under Section 95-25.3, but rather Section 95.25.6, which requires "every employer to pay every employee all wages and tips accruing to the employee on the regular payday," and which is excluded from application to defendants by Section 95-25.14(d). The Defendants contend that Section 95-25.3 is limited to "governing the minimum amount an employer is allowed to contract to pay an employee." The language of Section 95-25.3, however, is not so limited. Rather, the Plaintiff's claim under Section 95-25.3 is coextensive with his claim under Section 206 of the FLSA, which also is based upon the failure to pay a minimum wage. In sum, the Defendant's motion to dismiss the Plaintiff's NCWHA claim is granted in that part where the Plaintiff asserts "overtime" and "payday" violations of the NCWHA, Sections 95-25.6 and 95-25.4, and denied in that part where the Plaintiff asserts a "minimum wage" violation under Section 95-25.3. 3. Breach of Contract The Defendants argue that the Plaintiff fails to state a claim for breach of contract. Judge Flanagan agrees. A claim for breach of contract requires a plaintiff to allege "the existence of a contract between plaintiff and defendant, the specific provisions breached, the facts constituting the breach, and the amount of damages resulting to plaintiff from such breach." The Plaintiff does not allege a contract between himself and either defendant. He also does not allege specific provisions of any contract breached. The Plaintiff's attempts to delineate a contractual relationship are insufficient to state a claim for breach of contract. In addition, the Plaintiff's assertion of a contract with Defendant Edgecombe is contrary to state law. The Plaintiff's allegations do not support a claim that Defendant Edgecombe and/or Defendant Atkinson entered into a contract specifying terms of pay to the Plaintiff, which were breached by the conduct alleged in the complaint. Thus, the Plaintiff's claim for breach of contract fails as a matter of law and must be dismissed. The Defendants' motion to dismiss is granted in this part. II. Motion to Stay Where defendants seek a stay of proceedings pending resolution of the instant motion to dismiss, and where the court now has adjudicated that motion, Judge Holmes denied as moot the Defendants' motion to stay. She directs the parties to meet and confer and to file a joint report and plan in accordance with Federal Rule of Civil Procedure 26(f) and the Court's Oct. 22, 2020 initial order. Conclusion Based on the foregoing, Judge Holmes granted in part and denied in part the Defendants' motion to dismiss as set forth. The Plaintiff's FLSA claim and NCWHA claim premised upon a violation of N.C. Gen. Stat. Section 95-25.3 are allowed to proceed. The Plaintiff's NCWHA claim on other grounds and his breach of contract claim are dismissed without prejudice. Judge Flanagan denied as moot the Defendants' motion to stay. The parties are directed to meet and confer and file, within 21 days of the date of the Order, a joint report and plan in accordance with Federal Rule of Civil Procedure 26(f) and the Court's Oct. 22, 2020, initial order. A full-text copy of the Court's Oct. 20, 2021 Order is available at https://tinyurl.com/273d9ywz from Leagle.com. EQUILON ENTERPRISES: Court Grants Dimercurio Leave to Amend Suit ---------------------------------------------------------------- In the case, MARCO DIMERCURIO, et al., Plaintiffs v. EQUILON ENTERPRISES LLC, Defendant, Case No. 19-cv-04029-JSC (N.D. Cal.), Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California grants the Plaintiffs' request for leave to amend and will hear argument on the class certification issue. The Court previously certified as a class action the Plaintiffs' claims for reporting time pay, wage statements, and unfair business practices. It declined to certify the claim for waiting time penalties and invited further briefing. Before the Court are the Plaintiffs' supplemental brief requesting leave to amend and class certification on that claim, the proposed Second Amended Complaint ("SAC"), and the Defendant's opposition. I. Leave to Amend Judge Corley explains that leave to amend shall be freely given when justice so requires, but a district court may exercise its discretion to deny leave to amend due to undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party or futility of amendment." Among the discretionary factors, "prejudice to the opposing party carries the greatest weight." Absent prejudice, or a strong showing by the party opposing amendment of any of the remaining factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." In the case, Judge Corley holds that the Defendant has not established prejudice. The limited number of new facts alleged in the proposed SAC, related to the refinery sale, were all known to the Defendant. The SAC alleges that Plaintiffs DiMercurio, Gaeth, and Langlitz were discharged in the refinery sale, and brings a waiting time penalties claim on behalf of discharged employees under Labor Code Section 201. While the original complaint did not name any Plaintiffs who had been discharged as opposed to resigned, it did put Defendant on notice that the Plaintiffs intended to assert a waiting time penalties claim on behalf of discharged employees. And, while Plaintiffs DiMercurio, Gaeth, and Langlitz's Section 201 claims did not exist at the case's outset, because they had not yet been discharged, it is safe to assume that other class members had been discharged prior to that time and had actionable claims under Section 201. The Defendant does not identify particular discovery or litigation efforts that it would or would not have undertaken had Plaintiffs amended their complaint at an earlier date. Notably, the SAC broadens only the scope of the waiting time penalties sub-class, not the class. Nor is there undue delay, for related reasons, Judge Corey adds. The Plaintiffs were endeavoring in good faith to meet the pleading requirements and to comply with court guidance. Finally, amendment is not futile because it produces a waiting time penalties claim that is at least arguably appropriate for class certification. Because the Defendant has not established prejudice or made a strong showing of any of the remaining factors, leave to amend is granted. II. Class Certification As to class certification on the waiting time penalties claim, Judge Corley will hear argument and she will hold the further Case Management Conference at that time. A full-text copy of the Court's Oct. 20, 2021 Order is available at https://tinyurl.com/92wn2934 from Leagle.com. FACEBOOK INC: Robbins Geller Reminds of December 27 Deadline ------------------------------------------------------------ The law firm of Robbins Geller Rudman & Dowd LLP announces that purchasers of Facebook, Inc. (NASDAQ: FB) securities have until December 27, 2021 to seek appointment as lead plaintiff in Ngian v. Facebook, Inc., No. 21-cv-05976 (E.D.N.Y.). Commenced on October 27, 2021, the Facebook securities class action lawsuit charges Facebook as well as certain of its top executives with violations of the Securities Exchange Act of 1934. If you wish to serve as lead plaintiff of the Facebook securities class action lawsuit, please provide your information by clicking here. You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the Facebook securities class action lawsuit must be filed with the court no later than December 27, 2021. CASE ALLEGATIONS: The Facebook securities class action lawsuit alleges that defendants made false and misleading statements and failed to disclose that: (i) Facebook misrepresented its user growth; (ii) Facebook knew that duplicate accounts represented a greater portion of its growth than stated, and it should have provided more detailed disclosures as to the implication of duplicate accounts to Facebook's user base and growth; (iii) Facebook did not provide a fair platform for speech, and regularly protected high profile users via its Cross Check/XCheck system; (iv) despite being aware of their use of Facebook's platforms, Facebook failed to respond meaningfully to drug cartels, human traffickers, and violent organizations; (v) Facebook has been working to attract preteens to its platform and services; and (vi) as a result, defendants made public statements that were materially false and misleading. On September 13, 2021, The Wall Street Journal published an article titled "Facebook Says Its Rules Apply to All. Company Documents Reveal a Secret Elite That's Exempt." This Wall Street Journal article would be the first of nine articles published by the outlet based on documents provided by a then-unknown whistleblower (the "Whistleblower"). The article, among other things, reported that Facebook's CEO and founder, defendant Mark Zuckerberg, "has publicly said Facebook Inc. allows its more than three billion users to speak on equal footing with the elites of politics, culture and journalism, and that its standards of behavior apply to everyone, no matter their status or fame. In private, the company has built a system that has exempted high-profile users from some or all of its rules." On this news, the price of Facebook shares fell. Then, on September 28, 2021, The Wall Street Journal published an article titled "Facebook's Effort to Attract Preteens Goes Beyond Instagram Kids, Documents Show." The article stated, among other things, that "[i]nternal Facebook documents reviewed by The Wall Street Journal show the company formed a team to study preteens, set a three-year goal to create more products for them and commissioned strategy papers about the long-term business opportunities presented by these potential users." On this news, the price of Facebook shares fell. Thereafter, on October 3, 2021, CBS News aired a television segment on 60 Minutes interviewing the Whistleblower, revealed to be Frances Haugen, on her findings during her time at Facebook. On that same day, CBS published an article containing highlights from the interview, stating, among other things, that "Facebook has realized that if they change the algorithm to be safer, people will spend less time on the site, they'll click on less ads, they'll make less money." The following day, on October 4, 2021, CBS News published an article titled "Whistleblower's SEC Complaint: Facebook Knew Platform Was Used to 'Promote Human Trafficking and Domestic Servitude,'" containing the whistleblower complaints against Facebook filed with the U.S. Securities and Exchange Commission. As a result of the October 3 and 4 revelations, Facebook's share price fell nearly $17.00 per share, further damaging investors. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Facebook securities to seek appointment as lead plaintiff in the Facebook securities class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the Facebook securities class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the Facebook securities class action lawsuit. An investor's ability to share in any potential future recovery of the Facebook securities class action lawsuit is not dependent upon serving as lead plaintiff. [GN] FIRST AMERICAN: Continues to Defend Putative Class Suits -------------------------------------------------------- First American Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the company continues to defend itself against a number of non-ordinary course lawsuits, most of which are putative class actions. Most of the non-ordinary course lawsuits to which the Company and its subsidiaries are parties challenge practices in the Company's title insurance business, though a limited number of cases also pertain to the Company's other businesses. These lawsuits include, among others, cases alleging, among other assertions, that the Company or one of its subsidiaries improperly charged fees for products and services and improperly handled property and casualty claims in violation of certain laws, such as consumer protection laws and laws generally prohibiting unfair business practices, and certain obligations, including: - Tenefufu vs. First American Specialty Insurance Company, filed on June 1, 2017 and pending in the Superior Court of the State of California, County of Sacramento, and - Wilmot vs. First American Financial Corporation, et al., filed on April 20, 2007 and pending in the Superior Court of the State of California, County of Los Angeles. Tenefufu is a putative class actions for which a class has not been certified. A class has been certified in Wilmot. For the reasons described above, the Company has not yet been able to assess the probability of loss or estimate the possible loss or the range of loss. The Company and/or its subsidiaries are also parties to consumer class actions and a securities class action in connection with the information security incident that occurred during the second quarter of 2019. All of these lawsuits are putative class actions for which a class has not been certified. For the reasons described above, the Company has not yet been able to assess the probability of loss or estimate the possible loss or the range of loss. First American Financial Corporation, through its subsidiaries, provides financial services. It operates through Title Insurance and Services, and Specialty Insurance segments. First American Financial Corporation was incorporated in 2008 and is based in Santa Ana, California. GENERAL MOTORS: Court Narrows Heater's Defective Engine Claims -------------------------------------------------------------- In the case, ROGER HEATER, Individually and on behalf of all others similarly situated, Plaintiffs v. GENERAL MOTORS, LLC, Defendant, Civil Action No. 1:21CV24 (N.D.W. Va.), Judge Irene W. Keeley of the U.S. District Court for the Northern District of West Virginia grants in part and denies in part GM's motion to dismiss Heater's complaint. Background The putative class action arises from an alleged engine defect existing in certain vehicles sold by the Defendant GM in West Virginia and nationwide. On Feb. 10, 2021, Plaintiff Heater filed a class action complaint alleging that, although GM knew its vehicles excessively consumed oil, it failed to disclose, and actively concealed, this defect from consumers. In 2012, Heater purchased a 2011 Chevrolet Silverado equipped with GM's Generation IV 5.3 Liter V8 Vortec 5300 LC9 engine and covered by GM's Limited Warranty. He alleges that his vehicle, like the other Class Vehicles, excessively consumes oil, which can result in low oil levels, insufficient lubricity levels, internal engine component damage, and engine failure. The primary cause of this "Oil Consumption Defect" is that the "piston rings that GM installed within the Generation IV Engine fail to keep oil in the crankcase." Other issues with the Active Fuel Management System, the Positive Crankcase Ventilation ("PCV") system, the Oil Life Monitoring System, and the oil pressure gauge indicator on the dashboard exacerbate the defect. Together, these defects cause "drivability problems" and place occupants at an increased risk of injury or death. Mr. Heater alleges that GM became aware of the Oil Consumption Defect as early as 2008 because, among others, GM consumers had filed a significant number of complaints regarding excessive oil consumption in the Class Vehicles. In addition, GM had issued several Technical Service Bulletins ("TSBs") to its dealers addressing excessive oil consumption in vehicles with the Generation IV Engine, and had abandoned the Generation IV Engine for its redesigned Generation V 5.3 Liter V8 Vortec 5300 LC9 engine. Moreover, in 2009, Old GM had investigated the root cause of excessive oil consumption. Despite this knowledge, GM did not publicly disclose the Oil Consumption Defect and continued to sell Class Vehicles equipped with the Generation IV Engine to consumers like Heater. Heater alleges that he first became aware of his vehicle's defect when there were fewer than 50,000 miles on its odometer. Had GM disclosed the Oil Consumption Defect, Heater contends he would not have purchased the vehicle, or "certainly would have paid less for it." Mr. Heater asserts six causes of action against GM: (1) violation of the West Virginia Consumer Credit and Protections Act ("WVCCPA"), (2) breach of express warranty, (3) breach of the implied warranty of merchantability, (4) fraudulent concealment, (5) unjust enrichment, and (6) violation of the Magnuson-Moss Warranty Act ("MMWA"). Mr. Heater asserts Counts One through Five on behalf of "all current and former owners or lessees of a Class Vehicle that was purchased or leased in the state of West Virginia," and purports to assert a claim in Count Six on behalf of a nationwide class consisting of "all current and former owners or lessees of a Class Vehicle that was purchased or leased in the United States." On April 13, 2021, GM moved to dismiss Heater's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and to strike Heater's nationwide class allegation pursuant to Federal Rule of Civil Procedure 12(f). Discusses A. Violation of the West Virginia Consumer Credit and Protections Act ("WVCCPA") - Count One Mr. Heater first alleges that GM violated the WVCCPA by omitting material facts about the Oil Consumption Defect. He contends that, under that statute, he was not required to give GM prior notice of the Oil Consumption Defect because it had actively concealed the defect for years, and so any pre-suit notice would have been futile. GM opposes Heater's WVCCPA claim on two bases: First, that he failed to sufficiently plead a cause of action; and second, that his claim is barred because he did not comply with the statute's pre-suit notice requirement. Judge Keeley opines that Heater is mistaken in his contention. He seeks damages under a statutory scheme containing specific notice requirements. Thus, whether a petitioner must complete certain actions prior to seeking mandamus relief is irrelevant. The WVCCPA unequivocally requires that, before bringing a claim for relief, a consumer such as Heater must put GM on notice of its violative conduct and give it an opportunity to cure the resulting harm. Because the WVCCPA makes no exception for futility, Judge Keeley grants GM's motion to dismiss his WVCCPA claim. B. Breach of Express Warranty - Count Two Mr. Heater asserts that GM breached his vehicle's Limited Warranty by failing to repair the Oil Consumption Defect. GM's challenge to this claim raises three issues: (1) Whether the Oil Consumption Defect is a manufacturing defect or a design defect; (2) whether the Limited Warranty covers both manufacturing defects and design defects, or only manufacturing defects; and (3) whether Heater's express warranty claim is barred because he never sought, and GM never denied, repairs for the Oil Consumption Defect. After carefully considering the parties' arguments, Judge Keeley concludes that the Limited Warranty's plain language indicates that it is not restricted to manufacturing defects, but rather covers repairs to correct any vehicle defect, except "slight noise, vibrations, or other normal characteristics of the vehicle related to materials or workmanship." Accordingly, because the Oil Consumption Defect is a design defect that does not fall within one of the enumerated exceptions, it is within the scope of the Limited Warranty. Because Heater has not sufficiently pleaded a breach of express warranty claim, Judge Keeley grants GM's motion to dismiss this cause of action. C. Breach of Implied Warranty of Merchantability - Count Three Mr. Heater alleges that GM breached the implied warranty of merchantability by selling Class Vehicles that were unfit for their ordinary and intended use due to the Oil Consumption Defect. GM opposes Heater's claim as insufficiently pleaded and untimely. Judge Keeley opines that Heater has sufficiently pleaded an implied warranty of merchantability claim and the timeliness of his claim under the fraudulent concealment doctrine raises material questions of fact. She finds that Heater has pleaded sufficient facts to survive GM's motion to dismiss. Among other things, under the class action tolling doctrine, Heater is correct that his implied warranty of merchantability claim was tolled from Feb. 27, 2017 through June 17, 2020. Also, Heater's claim is only timely if, prior to Feb. 27, 2017, the limitations period had been tolled by the fraudulent concealment doctrine. Judge Keeley therefore denies GM's motion to dismiss this claim. D. Fraudulent Omission - Count Four Mr. Heater alleges that GM intentionally failed to disclose material information regarding the Oil Consumption Defect, thereby inducing him to purchase a vehicle with the defective Generation IV Engine. GM argues that Heater has failed to plead with particularity that it had pre-sale knowledge of the alleged defect or a duty to disclose this defect as required by Federal Rule of Civil Procedure 9(b). Judge Keeley concludes that Heater has alleged facts, with sufficient particularity where required, to support his claim that GM fraudulently omitted material information about the Oil Consumption Defect. This conclusion is also supported by Fourth Circuit precedent cautioning district courts to "hesitate to dismiss a complaint under Rule 9(b) if it is satisfied (1) that the Defendant has been made aware of the particular circumstances for which it will have to prepare a defense at trial, and (2) that the Plaintiff has substantial pre-discovery evidence of those facts." Because GM currently is litigating several cases across the country that are substantively identical to the case, and because some of these cases have progressed through discovery and summary judgment, GM is uniquely aware of the circumstances under which it must prepare its defense. And, based on his counsel's participation in those cases, Heater has substantial pre-discovery information concerning his claims. Judge Keeley therefore denies GM's motion to dismiss Heater's fraudulent omission claim as insufficiently pleaded pursuant to Rule 9(b). E. Unjust Enrichment - Count Five Mr. Heater asserts that GM sold Class Vehicles at an artificially inflated price based on the Oil Consumption Defect and, so, retained unjust benefits. GM argues that Heater cannot recover under a theory of unjust enrichment because an express contract exists between the parties. GM is correct that its Limited Warranty is an express contract between the parties, Judge Keeley finds. But because GM and Heater dispute the terms of this warranty and its applicability to the Oil Consumption Defect, she says, dismissal of Heater's unjust enrichment claim is not appropriate at this time. Although Heater may not recover under both breach of contract and unjust enrichment theories, he is entitled to plead them in the alternative at this point of the litigation. Judge Keeley therefore denies GM's motion to dismiss Heater's unjust enrichment claim, subject to renewal at a later time. F. Violation of the Magnuson-Moss Warranty Act ("MMWA") - Count Six Finally, Heater alleges that GM violated the MMWA and brings a claim for damages "individually and on behalf of the other members of the nationwide class." The MMWA regulates warranties on consumer products distributed in interstate commerce and "provides that, subject to certain statutory requirements, an injured consumer can seek damages in a civil action for warranty violations." GM argues that Heater's MMWA claim fails because he has not pleaded a viable state law warranty claim, nor has he satisfied the MMWA's "100-named plaintiff requirement." Regardless of whether these arguments have merit, Judge Keeley opines that Heater's class MMWA claim fails because he lacks standing to represent a nationwide class. She finds that (i) Heater lacks standing to bring claims on behalf of a nationwide class; (ii) because she has dismissed Heater's nationwide class allegations, she denies as moot GM's motion to strike these allegations; and (iii) because Heater's individual MMWA claim derives from his state law warranty claims, and Heater has sufficiently pleaded an implied warranty of merchantability claim under West Virginia law, she denies GM's motion to dismiss his individual MMWA claim. Conclusion For the reasons she discussed, Judge Keeley (i) grants GM's motion to dismiss Heater's WVCCPA claim (Count One); (ii) grants GM's motion to dismiss Heater's express warranty claim (Count Two); (iii) denies GM's motion to dismiss Heater's implied warranty of merchantability claim (Count Three); (iv) denies GM's motion to dismiss Heater's fraudulent omission claim (Count Four); (v) denies GM's motion to dismiss Heater's unjust enrichment claim (Count Five); (vi) dismisses Heater's nationwide class MMWA claim for lack of standing (Count Six); (vii) denies as moot GM's motion to dismiss Heater's nationwide class MMWA claim (Count Six); (viii) denies GM's motion to dismiss Heater's individual MMWA claim (Count Six); and (ix) denies as moot GM's motion to strike Heater's nationwide class allegations. The Clerk will transmit copies of this Order to the counsel of record by electronic means. A full-text copy of the Court's Oct. 20, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/cvwvcr97 from Leagle.com. GEO GROUP: Owes Detainees $17 Million in Back Pay, Jury Says ------------------------------------------------------------ kcrw.com reports that a federal jury in Tacoma, Wash., says the GEO Group, which owns and runs a large detention center for U.S. Immigration and Customs Enforcement, owes former detainees $17.3 million in back pay for tasks such as cleaning and cooking meals. The Florida-based for-profit prison company paid detainees $1 a day for such work, a practice the jury determined earlier this week is a violation of the state's minimum wage law. On Friday, they announced how much back pay was owed. "This was about fair wages for work," says Adam Berger, an attorney with Schroeter Goldmark & Bender, which brought a class action on behalf of former detainees. "These detained immigrants are just emblematic of other workers in this economy who are in exploitive labor situations." One former detainee who joined the suit is Nigerian-born Goodluck Nwauzor. He says he was detained at the Tacoma facility for eight months, starting in 2016, as he waited for his asylum claim to be processed. During that time he cleaned showers for a dollar a day. He says the GEO Group didn't force people to do such work, but he saw little choice. "You have to do it, to get the money to get the stuff you need, or also make a call to your friends and family members," Nwauzor told NPR on Friday. "It's unfair. Because the amount of the job, or the kind of job we do, is beyond what they were paying us." The class action was consolidated with a separate lawsuit brought by the state of Washington, which accused the GEO Group of violating state labor law and enriching itself unjustly. The GEO Group argued that the detainees were not employees under Washington law, and that the state itself pays less than minimum wage to prisoners in its corrections facilities. The state minimum wage law exempts people living in "state, county or municipal" detention facilities. The Tacoma site is federal, and owned by a private company. The company made $18.6 million in profits from the Tacoma detention center in 2018, and it acknowledged in a previous trial that it could have paid detainees more. The company did not respond to NPR's request for comment. The jury awarded the former detainees $17.3 million in back pay on Friday evening. It's still up to U.S. District Judge Robert Bryan to determine how much money the company must pay the state on its claim of unjust enrichment. Berger says about 10,000 former detainees are eligible to share the back pay. "We're going to have a big job ahead of us, locating all of these folks to try to give them the money that they've earned," he says. "And quite frankly, some of them we might not be able to find." He says attorneys will petition the court separately for their fees. Nwauzor, who was one of the lead plaintiffs in the class action, received asylum in 2017, and now lives in suburban Seattle. "I have a job," he says, "with benefits." [GN] GREAT AMERICAN: Delaware Court Dismisses Rodriguez Class Suit ------------------------------------------------------------- In the case, Re: Ernesto Rodriguez and Alan Hall v. Great American Insurance Company, C.A. No. 2020-0387-JRS (Del. Ch.), Judge Joseph R. Slights, III, of the Court of Chancery of Delaware dismisses the complaint for want of subject matter jurisdiction. Introduction The Plaintiffs are former stockholders of Zhongpin, Inc. and current judgment creditors of Zhongpin and its board of directors ("Class Action Defendants"). The underlying judgment was entered in litigation where stockholders, including the Plaintiffs, asserted claims of breach of fiduciary duty against the Class Action Defendants relating to a self-interested going-private transaction in which Zhongpin's controlling stockholder cashed-out Zhongpin's minority stockholders following an unfair process and at an unfair price. When the Class Action Defendants defaulted on their obligation to defend the litigation, the Court entered judgment against them in the amount of $41,282,758 ("Default Judgment"). That Default Judgment remains unsatisfied. The Plaintiffs initiated the action to collect the Default Judgment directly from Zhongpin's director and officer liability ("D&O") insurance carrier, Defendant, Great American Insurance Company ("GAIC"). GAIC disputes both the Plaintiffs' standing to assert a direct claim against the Zhongpin D&O policy and whether the Plaintiffs have stated a viable claim for coverage under the clear and unambiguous terms of the policy. GAIC has moved to dismiss the Plaintiffs' Verified Complaint for Declaratory Judgment ("Complaint") with prejudice under Chancery Rule 12(b)(6). Following submission of GAIC's motion to dismiss ("Motion to Dismiss"), the Court, sua sponte, asked the parties to address in supplemental submissions whether the Court has subject matter jurisdiction over this dispute. Background Plaintiffs Ernesto Rodriguez and Alan Hall are former stockholders of Zhongpin and were certified as class representatives in a class action against the Class Action Defendants. Defendant, GAIC, is an Ohio-based insurance company that issued the D&O insurance policy to Zhongpin. Non-party, Zhongpin, was a Delaware meat and food processing company that specialized in vegetables, fruits, pork and pork products.10 The company's principal corporate offices were in the People's Republic of China. Non-party, Xianfu Zhu, was the de facto controlling stockholder of Zhongpin. Zhu caused Zhongpin to enter a transaction with two of his wholly owned entities whereby the minority stockholders of Zhongpin were cashed out for inadequate consideration. That transaction prompted the claims against the Class Action Defendants that resulted in the Default Judgment. It is alleged that Zhu resides in China. As noted, the underlying action challenged a merger, memorialized in a definitive merger agreement dated Nov. 26, 2012, whereby Zhu, as controller, squeezed out Zhongpin's minority stockholders. The complaint in that action asserted breach of fiduciary duty claims against the Class Action Defendants and was premised on the contention that these defendants would be obliged to prove the entire fairness of the squeeze-out. The Class Action Defendants initially were represented by Skadden, Arps, Slate, Meagher & Flom LLP. On Feb. 6, 2019, the Court granted Skadden's motion to withdraw as counsel after the Class Action Defendants failed to meet their financial obligations to the firm. On Nov. 21, 2019, the Court granted the Plaintiffs' motion for class certification. And, on April 14, 2020, after the Class Action Defendants failed to engage new counsel, and otherwise failed to participate in the defense of the litigation, the Court granted the Plaintiffs' motion for default judgment. After further submissions from the Plaintiffs, the Court entered the Default Judgment against the Class Action Defendants in the amount of $41,282,758. The Default Judgment remains unsatisfied. According to the Plaintiffs, they have been unable to collect from the Class Action Defendants, inter alia, because they and their assets are located in China. Having exhausted their efforts to execute on the judgment against the Class Action Defendants, the Plaintiffs now turn to Zhongpin's D&O policy for satisfaction. It is alleged that the D&O policy issued to Zhongpin by GAIC covered losses incurred during the time frame of the wrongdoing alleged in the underlying action and that the losses are not excluded by the D&O Policy. GAIC disagrees on several grounds, including that the Plaintiffs have no standing to seek coverage under the D&O Policy, the claims arose outside the coverage period, and the claims are governed by several exceptions or failures of conditions in the policy. Analysis After oral argument on the Motion to Dismiss, the Court raised, sua sponte, the question of whether it could exercise subject matter jurisdiction over the Plaintiffs' claims. Judge Slights holds that the Court of Chancery is proudly a court of limited subject matter jurisdiction." With this in mind, he will "guard the historic and important distinction between legal and equitable jurisdiction" even if he must raise the issue sua sponte. In view of this mandate, Judge Slights begins and ends with a question the parties did not raise: Whether the Court has subject matter jurisdiction to hear the Plaintiff's claims." Having determined that it does not, he dismisses the Complaint for want of subject matter jurisdiction. The Plaintiffs may elect to transfer the case to the Superior Court under 10 Del. C. Section 1902 within 60 days. If the Plaintiffs elect to transfer, they may also request that Judge Slights be cross-designated to preside over the case pro tempore as a Superior Court judge. Given the procedural posture in which the subject matter jurisdiction issue has been addressed, and Judge Slights' progress in considering the Motion to Dismiss on the merits, cross-designation may be particularly appropriate in the instance. Conclusion For the foregoing reasons, Judge Slights is satisfied the Court lacks subject matter jurisdiction. The Plaintiffs' claims, therefore, must be dismissed. The Plaintiffs will have 60 days within which to file a written election of transfer of the action to the Superior Court under 10 Del. C. Section 1902, failing which the case will be dismissed with prejudice. A full-text copy of the Court's Oct. 20, 2021 Order is available at https://tinyurl.com/bup9rd from Leagle.com. HAWAI'I: District Court Dismisses Pelekai Suit Without Prejudice ---------------------------------------------------------------- In the case, KAIMI K. PELEKAI, et al., Plaintiffs v. STATE OF HAWAI'I, et al., Defendants, Case No. 21-cv-00343-DKW-RT (D. Haw.), Judge Derrick K. Watson of the U.S. District Court for the District of Hawaii granted the pending motions to dismiss the complaint without prejudice and denied the pending motion for injunctive relief as moot. Background On Aug. 13, 2021, the Plaintiffs, 10 employees of the City and County of Honolulu and 2 employees of the County of Maui, filed a Complaint, asserting 14 causes of action challenging (i) an Aug. 5, 2021 Emergency Proclamation Related to the COVID-19 Response by Governor David Ige (the State Vaccine Policy), and (ii) an Aug. 10, 2021 Directive from Mayor Rick Blangiardi (the Honolulu Vaccine Policy). The Plaintiffs claimed to have brought the action "on behalf of all other similarly situated persons," specifically, "all current and future first responders on the Islands of Oahu and Maui subjected to the current Vaccine Policies." The Complaint named as Defendants the State of Hawai'i, Governor David Ige, Honolulu, Honolulu Mayor Rick Blangiardi, Maui, Maui Mayor Michael Victorino, and Secretary Xavier Bacerra of the U.S. Department of Health and Human Services (HHS). The 14 causes of action in the Complaint are as follows: (1) federal preemption because the Vaccine Policies "require" the Plaintiffs to be vaccinated "against their will"; (2) declaratory relief that the Vaccine Policies violate the "laws of nations"; (3) violation of 21 U.S.C. Section 360bbb-3(e)(1)(A)(ii) because COVID-19 vaccines are "investigational" products under Emergency Use Authorization (EUA) and, thus, the Plaintiffs must "consent" to their administration; (4) violation of substantive due process because of the "forcible administration" of the COVID-19 vaccines; (5) violation of procedural due process because the COVID-19 vaccines are "experimental"; (6) violation of "international law" because the COVID-19 vaccines are "nonconsensual" and "experimental"; (7) violation of equal protection because vaccinated employees are not subject to testing; (8) violation of the Fifth Amendment right to bodily integrity because "there is reason to believe that some courts would find COVID vaccine mandates inconsistent" with U.S. Supreme Court precedent in Jacobson v. Massachusetts, 197 U.S. 11 (1905); (9) violation of substantive due process because the Plaintiffs have been deprived of their right to direct their personal medical care; (10) violation of equal protection because vaccinated and unvaccinated individuals are "arguably indistinguishable"; (11) violation of 21 U.S.C. Section 360bbb-3 because polymerase chain reaction (PCR) tests are "investigational" under an EUA and, thus, the Plaintiffs must "consent" to their use; (12) violation of Section 360bbb-3 because the Vaccine Policies do not allow the Plaintiffs the option to refuse PCR testing; (13) violation of the Fourth Amendment right against unreasonable searches and seizures because the Vaccine Policies are a "mandatory surveillance testing program"; and (14) violation of the First Amendment right to the free exercise of religion because the Vaccine Policies impose "burdensome and equally-offensive requirements as a condition of employment." The Plaintiffs seek declaratory and injunctive relief with respect to the Vaccine Policies. At the same time, the Plaintiffs also filed a motion for temporary restraining order and preliminary injunction. Therein, they sought temporary and preliminary injunctive relief prohibiting enforcement of the Vaccine Policies. The Court set a briefing schedule and hearing date of Sept. 8, 2021 on the TRO motion. One business day before the scheduled filing of the Defendants' response to the TRO motion, the Plaintiffs filed a "supplemental" brief in support of the TRO motion, along with numerous exhibits and declarations. Therein, the Plaintiffs reiterated that the Vaccine Policies violated, and were preempted by, federal law. The Plaintiffs also, for the first time, made arguments and allegations not in the Complaint related to the Vaccine Policies and their impact on the Plaintiffs' religious beliefs. In light of the timing and unauthorized nature of this "supplemental" filing, the Court, while accepting the same for purposes of a complete record, reset the briefing schedule on the TRO motion and vacated the Sept. 8, 2021 hearing date, noting that the hearing would be re-scheduled upon completion of briefing. Thereafter, the Court received oppositions to the TRO motion from the State, Honolulu, and the Secretary, motions to dismiss from the same Defendants, and motions for joinder from Maui and Honolulu. In summary, the Defendants oppose any injunctive relief and, instead, argue that this case should be dismissed. Among many other arguments in that regard, Honolulu asserts that all 10 of the Plaintiffs employed by it have been granted a religious exemption from the Honolulu Vaccine Policy and, thus, are not required to take a COVID-19 vaccine. Honolulu argues, therefore, that the Plaintiffs' claims are moot. The Plaintiffs then filed three replies in support of the TRO motion, each responding to one of the oppositions filed by the Defendants. They have also filed three oppositions to the pending motions to dismiss. In opposing Honolulu's motion to dismiss, the Plaintiffs argue, inter alia, that their case is not moot because they represent a "class" "with hundreds of Plaintiffs", the Honolulu Vaccine Policy is "capable of repetition yet evading review," and the Honolulu Vaccine Policy still contains "offensive language" that the Court can remedy. The Court has also received Defendants' replies in support of each of the motions to dismiss. With briefing complete on the TRO motion, the Court set the same for hearing on Oct. 15, 2021. The motions to dismiss were also subsequently set for hearing on that date. On Oct. 14, 2021, the day before the scheduled hearing, the Plaintiffs filed another "supplement" in support of the TRO motion. The Plaintiffs also filed a motion for leave to file a first amended complaint. Among other things, the Plaintiffs assert that they wish to file an amended complaint in order to "add subsequent events," such as the federal government providing full approval and EUA to vaccines manufactured by Pfizer. The Plaintiffs also state that they wish to add "many other" individuals as named plaintiffs in the case -- several hundred individuals that the Plaintiffs assert have not yet received vaccine exemptions on religious grounds. On Oct. 15, 2021, a hearing was held on the TRO motion and the motions to dismiss. At the conclusion of the same, the Court took the pending motions under advisement. The Order now follows. Discussion As it must, Judge Watson first addresses whether subject matter jurisdiction exists in the case. Federal courts lack subject matter jurisdiction when, inter alia, the case or controversy is moot. A case is moot "when interim relief or events have deprived the court of the ability to redress the party's injuries." The Defendants argue that the Plaintiffs' claims are moot for various reasons. First, they assert that the Plaintiffs are not required to receive a COVID-19 vaccine because they have been granted exemptions from doing so. Second, the Defendants contend that the Plaintiffs need not receive a vaccine subject to an EUA because the U.S. Food and Drug Administration (FDA) has granted full approval to the COVID-19 vaccine from Pfizer-BioNTech (Pfizer Vaccine). Judge Watson agrees that all of the Plaintiffs' claims are moot due to intervening events, the arguments of the Plaintiffs in their briefing, and/or the fact that it is now clear that some of the Plaintiffs were never subject to an injury in the first place. As an initial matter, it is important to understand the numerous claims the Plaintiffs bring in the Complaint. Although 14 in number, those claims in toto essentially challenge (1) the alleged "forced" vaccination of the Plaintiffs, (2) the use of vaccines under an EUA, and (3) the use of COVID-19 testing under an EUA. Judge Watson holds that none of those alleged injuries now exist, to the extent they ever did, or the Plaintiffs no longer contend that they are injuries at all. First, and most importantly, none of the Plaintiffs is being forced to receive a COVID-19 vaccine, whether under an EUA or not. This affects Claims One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, and Fourteen. Second, subsequent to filing the Complaint, the Plaintiffs have taken the consistent position that testing for the coronavirus is to be applauded. This affects Claims Seven, Nine, Ten, Eleven, Twelve, and Thirteen. Judge Lasnik finds that finds none of Plaintiffs' arguments to the contrary on the issue of mootness to be persuasive. The Plaintiffs first argue that their claims are not moot because this is a "class action with hundreds of Plaintiffs." While the Complaint may contain class allegations, no certification motion has been filed, and no class has been certified or even evaluated by the Court pursuant to Federal Rule of Civil Procedure 23. In other words, this argument from the Plaintiffs assumes a world that does not currently exist in the case and, thus, does nothing to suggest their claims are not moot. Next, the Plaintiffs argue that the Honolulu Vaccine Policy is "capable of repetition yet evading review." A policy is "capable of repetition, yet evading review" when "(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Judge Lasnik holds that neither condition exists. The duration of the Honolulu Vaccine Policy is not too short by any measure, given that, from the document the Plaintiffs have provided, there does not appear to be any date for its cessation or expiration. The Honolulu Vaccine Policy is not evading any review, given that it can be challenged at any time. Next, the Plaintiffs argue that the Pfizer Vaccine that has been fully approved by the FDA is not available and, thus, they are still required to use an "experimental" vaccine under an EUA. As an initial matter, Judge Lasnik finds that this argument does nothing to dispel the undisputed fact that none of the Plaintiffs is required to receive a vaccine, irrespective of its approval or "experimental" status. In other words, according to the FDA, the EUA vaccine is no more "experimental" than its fully approved analogue. In any event, because the Plaintiffs are not required to receive a COVID-19 vaccine, the type of vaccine they do not have to receive is of no import. Finally, the Plaintiffs argue that, even if they are exempt from any vaccine requirement under the Honolulu Vaccine Policy, the policy still contains "offensive language" that the Court can order stricken. However, contrary to the Plaintiffs' assertions, Judge Lasnik finds no "offending" language for him to strike from the Honolulu Vaccine Policy and, thus, their claims remain moot. Accordingly, all of the claims raised in the Complaint are moot and will be dismissed on that basis. Dismissal is without prejudice. Conclusion To the extent set forth, Judge Lasnik granted the motions to dismiss without prejudice. He also granted the motions for joinder. Because all claims have been dismissed, the motion for temporary restraining order and preliminary injunction is denied as moot. A full-text copy of the Court's Oct. 22, 2021 Order is available at https://tinyurl.com/kyd5v586 from Leagle.com. HEALTHCARE SERVICES: Jan. 10, 2022 Settlement Approval Hearing Set ------------------------------------------------------------------- Healthcare Services Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the final settlement approval hearing in the Pennsylvania putative shareholder class action lawsuit is set for January 10, 2022. On March 22, 2019, a putative shareholder class action lawsuit was filed against the Company and its Chief Executive Officer in the U.S. District Court for the Eastern District of Pennsylvania, seeking unspecified monetary damages and other relief on behalf of the plaintiff class. The initial complaint, which was filed by a plaintiff purportedly on behalf of all purchasers of our securities between April 11, 2017 and March 4, 2019, alleges violations of the federal securities laws in connection with the matters related to the company's earnings per share (EPS) calculation practices. On September 17, 2019, the complaint was amended to, among other things, extend the Class Period to cover the period between April 8, 2014 and March 4, 2019, and to name additional individuals affiliated with the Company as defendants. On March 17, 2021, the parties reached an agreement in principle to settle the action on a class-wide basis. On June 30, 2021, the plaintiff filed an unopposed motion for an order preliminarily approving a proposed class action settlement, preliminarily certifying the settlement class, and approving notice to the settlement class. On September 15, 2021, the Court entered an order preliminarily approving the settlement and providing for notice to settlement class members. The $16.8 million settlement was funded by the Company's directors' and officers' liability insurance carriers and paid on or about October 15, 2021. The Court has scheduled a final approval hearing for January 10, 2022. Healthcare Services Group, Inc., incorporated on November 22, 1976, provides management, administrative and operating services to the housekeeping, laundry, linen, facility maintenance and dietary service departments of the healthcare industry, including nursing homes, retirement complexes, rehabilitation centers and hospitals located throughout the United States. The Company operates through two segments: housekeeping, laundry, linen and other services (Housekeeping), and dietary department services. The company is based in Bensalem, Pennsylvania. HELLOFRESH SE: Settles TCPA Class Action for $14 Million -------------------------------------------------------- Chris Alarie, writing for DNC.com, reports that on October 15, HelloFresh settled for $14 million in a Telephone Consumer Protection Act (TCPA) class action—Murray v. Grocery Delivery E-Services USA Inc.—in the District Court of Massachusetts. According to Law360, it is the largest TCPA settlement in Massachusetts history. What is particularly notable about this case is it centers on violations of the Do Not Call (DNC) list rather than automatic telephone dialing system (ATDS) claims. As we have covered in our various examinations of the TCPA landscape following the Supreme Court's ruling in Facebook v. Duguid, one of the key litigation trends post-Facebook is an increase in DNC claims in place of ATDS claims. While DNC claims generally are not as costly at the high end as some of the most notorious ATDS class actions, Murray is an example of how callers who fail to scrub the DNC list can open themselves up to a significant amount of TCPA liability. [GN] HIGHLAND INDUSTRIES: Tillman Appeals Class Certification Bid Denial ------------------------------------------------------------------- Plaintiff Janet Tillman filed an appeal from a court ruling entered in the lawsuit styled Janet Tillman, individually and on behalf of all others similarly situated, v. Highland Industries, Inc., Case No. 4:19-cv-02563-SAL, in the United States District Court for the District of South Carolina at Florence. The Plaintiff is a property owner in Cheraw, South Carolina. Her property "borders" property now owned by Defendant. The Defendant's real property surrounds an industrial plant, which the Defendant currently operates to manufacture and produce industrial fabric (the "Plant Site"). Prior to 1988, Burlington Industries, Inc. owned the Plant Site, as well as additional real property not purchased by Defendant. During Burlington's ownership of the Plant Site, it operated two divisions: (1) industrial fabrics and (2) fiberglass. In 1988, the Defendant purchased the Plant Site and Burlington's industrial fabric business. The Defendant did not purchase the fiberglass business or the sludge drying beds. It purchased a portion of the Western Ditch, but not its entirety. This lawsuit involves the alleged polychlorinated biphenyls ("PCB") contamination of certain properties in areas surrounding the Plant Site. In that regard, it is undisputed that Burlington, not Defendant, used PCBs in the process of manufacturing fiberglass. The Plaintiff contends that Burlington's fiberglass operations resulted in disposal of PCBs in the sludge drying beds and discharge of PCBs into an open ditch. Further, the Plaintiff claims that at the time Defendant purchased the Plant Site, it was "seriously contaminated with high concentrations of PCBs." The Plaintiff further claims that those PCBs have contaminated her property. With respect to Defendant's liability, the Plaintiff contends that Defendant knew or should have known that the property it acquired was seriously contaminated at the time of purchase, as it "used and operated a stormwater discharge pipe" that allowed movement of contaminates. The Plaintiff brought the instant action, individually and on behalf of others similarly situated, against Defendant in the Court of Common Pleas for Chesterfield County, alleging four causes of action: (1) negligence/recklessness; (2) trespass; (3) nuisance; (4) injunctive relief. As reported in the Class Action Reporter on Oct. 11, 2021, the Hon. Judge Sherri A. Lydon entered an order denying the Plaintiff Tillman's motion to certify class defined as: "All owners of real property in Cheraw, South Carolina which abut the Surface Water Drainage Corridor and/or located within the Floodplain along said Surface Water Drainage Corridor, which have been impacted by PCB contamination emanating from the Highland Industries Plant Site." The Court said "It remains Plaintiff's burden to establish that certification of the issues is superior to "other available methods for fairly and efficiently adjudicating the dispute." Fed. R. Civ. P. 23(b)(3). Plaintiff has not done that. It remains Plaintiff's burden to establish all elements of certification, including superiority. The court is not persuaded that Plaintiff has met her burden in that regard." The Plaintiff seeks a review of Judge Lydon's order. The appellate case is captioned as Janet Tillman v. Highland Industries, Inc., Case No. 21-275, in the United States Court of Appeals for the Fourth Circuit, filed on Oct. 15, 2021.[BN] Plaintiff-Petitioner JANET TILLMAN, individually and on behalf of all others similarly situated, is represented by: William Camden Lewis, Esq. RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC 1513 Hampton Street Columbia, SC 29201 Telephone: (803) 281-8145 - and - Christopher Moore, Esq. RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC 1730 Jackson Street Barnwell, SC 29812-0000 Telephone: (803) 541-7850 - and - Gary Walter Poliakoff, Esq. POLIAKOFF & ASSOCIATES, PA P. O. Box 1571 Spartanburg, SC 29304-0000 Telephone: (864) 582-5472 - and - Joshua E. Slavin, Esq. THE LAW OFFICES OF JOSHUA E. SLAVIN, LLC 746 Wakendaw Boulevard Mount Pleasant, SC 29464 Defendant-Respondent HIGHLAND INDUSTRIES, INCORPORATED is represented by: Jessica James Orrick King, Esq. WILLIAMS MULLEN 1441 Main Street Columbia, SC 29201 Telephone: (803) 567-4602 - and - Francis Burkhead Brown Knowlton, Esq. NELSON MULLINS RILEY & SCARBOROUGH, LLP P. O. Box 11070 Columbia, SC 29211 Telephone: (803) 799-2000 - and - Ruth Ann Levy, Esq. WILLIAMS MULLEN P. O. Box 1000 Raleigh, NC 27602-1000 Telephone: (919) 981-4029 - and - Ethan Robert Ware, Esq. OGLETREE DEAKINS NASH SMOAK & STEWART, PC P. O. Box 2757 Greenville, SC 29602-0000 Telephone: (864) 271-1300 - and - Richard Hood Willis, Esq. BOWMAN & BROOKE, LLP 1441 Main Street Columbia, SC 29201 Telephone: (803) 726-0020 HONEYWELL INTERNATIONAL: Continues to Defend Kanefsky Class Suit ---------------------------------------------------------------- Honeywell International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the company continues to defend a putative class action suit initiated by David Kanefsky. On October 31, 2018, David Kanefsky, a Honeywell shareholder, filed a putative class action complaint in the U.S. District Court for the District of New Jersey alleging violations of the Securities Exchange Act of 1934 and Rule 10b-5 related to the prior accounting for Bendix asbestos claims. An Amended Complaint was filed on December 30, 2019, and on February 7, 2020, the company filed a Motion to Dismiss. On May 18, 2020, the court denied the company's Motion to Dismiss. Honeywell said, "We believe the claims have no merit." No further updates were provided in the Company's SEC report. Honeywell International Inc. is a worldwide diversified technology and manufacturing company. The Company provides aerospace products and services, control, sensing and security technologies, turbochargers, automotive products, specialty chemicals, electronic and advanced materials, process technology for refining and petrochemicals, and energy-efficient products and solutions. The company is based in Morris Plains, New Jersey. HYZON MOTORS: Hagens Berman Reminds of November 29 Deadline ----------------------------------------------------------- Hagens Berman urges Hyzon Motors Inc. (NASDAQ:HYZN, HYZNW, DCRB, DCRBW, DCRBU) investors with significant losses to submit your losses now. Class Period: Feb. 9, 2021 - Sept. 27, 2021 Lead Plaintiff Deadline: Nov. 29, 2021 Visit:www.hbsslaw.com/investor-fraud/HYZN Contact An Attorney Now:HYZN@hbsslaw.com 844-916-0895 Hyzon Motors Inc. (HYZN) Securities Fraud Class Action: The litigation alleges that Hyzon (1) misrepresented the nature of its "customer" contracts and severely embellished its "deals" and "partnerships" with customers; and (2) could not deliver its announced vehicles in 2021, on its stated timeline. The truth emerged on Sept. 28, 2021, when analyst Blue Orca published a scathing report likening the company to a Chinese Lordstown Motors. According to Blue Orca, Hyzon's largest customer, Shanghai HongYun, is a fake-looking PRC shell company formed just 3 days before Hyzon announced that it had agreed to purchase 500 trucks. Blue Orca also reported that Hyzon's next largest customer, Hiringa, which supposedly had signed an agreement to order 1,500 trucks by 2026, informed Blue Orca that it is not a customer, but merely a "channel partner" assisting Hyzon in marketing vehicles to real end customers in New Zealand. Blue Orca further contended that: (1) Hyzon's dropping of its big-name customers (Coca Cola, Ikea, Heineken) from recent investor decks suggests these blue chip companies were "phantom customers;" (2) former Hyzon executives departed because of misrepresentations on customer contracts and the company's ability to deliver vehicles in 2021; (3) Hyzon's financial projections are "pure fantasy"; and (4) two CTO resignations in 15 months reflects their "little faith in either the Company or the technology (or both)." On this news, Hyzon shares fell $2.58 per share, or 28%, in a single trading day. Most recently, another analyst Iceberg Research issued a separate report. In addition to agreeing with Blue Orca's key findings, Iceberg Research alleges that Hyzon's claims concerning its superior fuel cell technology are exaggerated. "We're focused on investors' losses and proving Hyzon lied about its roster of customers," said Reed Kathrein, the Hagens Berman partner leading the investigation. If you invested in Hyzon, or have knowledge that may assist the firm's investigation, click here to discuss your legal rights with Hagens Berman. Whistleblowers: Persons with non-public information regarding Hyzon should consider their options to help in the investigation or take advantage of the SEC Whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 844-916-0895 or email HYZN@hbsslaw.com. About Hagens Berman Hagens Berman is a national law firm with eight offices in eight cities around the country and over eighty attorneys. The firm represents investors, whistleblowers, workers and consumers in complex litigation. More about the firm and its successes is located at hbsslaw.com. Contact: Reed Kathrein, 844-916-0895 [GN] ILLINOIS: 7th Cir. Affirms Summary Judgment in Minerly v. Nalley ---------------------------------------------------------------- In the case, ROBERT MINERLY, Plaintiff-Appellant v. NICK NALLEY, et al., Defendants-Appellees, Case No. 20-1490 (7th Cir.), the U.S. Court of Appeals for the Seventh Circuit affirms the district court's entry of summary judgment for the prison staff members Minerly sued under 42 U.S.C. Section 1983. Mr. Minerly, an Illinois prisoner, alleges that the Defendants retaliated against him for filing grievances, conspired to prevent him from filing more grievances, and held a sham disciplinary hearing, all in violation of his constitutional rights. After the Defendants raised the affirmative defense of lack of exhaustion, the district court held an evidentiary hearing. The court found that Minerly had not exhausted his administrative remedies and entered summary judgment for the Defendants. Between April and July 2017, when Minerly was an inmate at Big Muddy River Correctional Center, he filed a string of grievances stemming from a search of his cell. During the search, correctional officer Nick Nalley seized legal materials while complaining about grievances that Minerly had filed against Nalley. The verbal harassment continued after the search, and Nalley also issued a false disciplinary ticket against Minerly for possessing contraband. Then, another correctional officer, Randy Valdez, unexpectedly confronted Minerly in the shower to conduct a perfunctory "disciplinary hearing" on the ticket, and a third officer, Allen Aparicio, then destroyed evidence of the false ticket. Mr. Minerly submitted four grievances to counselor Paul Yates regarding these incidents. According to Minerly, Yates returned two because they were missing required information (original written pages, as opposed to photocopies, and a requested remedy) and did not respond to the other two. Five days after Yates returned the two grievances, Minerly filed a fifth grievance about Yates's inaction on his grievances and alleged that Yates was part of a broader conspiracy with the correctional officers to prevent Minerly from filing grievances. Yates did not respond to this grievance either. Within days of submitting the fifth grievance to Yates, Minerly sent all five directly to the Illinois Department of Corrections' Administrative Review Board. The Board returned the grievances to Minerly because he had not followed proper procedures, which required that he obtain written responses from a grievance officer if the counselor, Yates, did not resolve his complaints. Minerly then filed a sixth grievance. This time he complained of overall inadequacies in the inmate complaint system; to support his point, he attached copies of the text of his first five unresolved grievances. The sixth grievance proceeded through the required steps, though the Board ultimately declined to review the copied complaints on which it was based because they were not the originals and had not been through the proper sequence. Mr. Minerly sued the correctional officers and Yates for retaliation against him for filing grievances, conspiracy to prevent him from filing further grievances, and denial of a fair disciplinary hearing. Minerly also sought to bring a class action on behalf of Illinois prisoners, citing "impossible obstacles" in the Illinois Department of Corrections' grievance system that violated prisoners' constitutional rights. The district court dismissed that claim at screening for failure to state a claim. The Defendants moved for summary judgment, asserting that Minerly failed to exhaust his administrative remedies. They argued that, although he had submitted grievances, he did not comply with the provisions of the Illinois Administrative Code requiring him to first grieve the issues with a counselor, and, if dissatisfied, appeal to a grievance officer. Only after receiving a response from the grievance officer could Minerly appeal to the Administrative Review Board. To resolve the dispute over whether Minerly followed the appropriate steps or was prevented from doing so, the magistrate judge (presiding with the parties' consent) conducted a Pavey hearing. In his opposition brief and at the Pavey hearing, Minerly insisted that he had tried to follow the proper procedures, but Yates deliberately interfered. Minerly explained that he submitted five grievances about the officers' alleged misconduct and Yates's unsatisfactory response, but Yates had thwarted his ability to exhaust administrative remedies by not responding to three grievances and returning two under "false pretenses." The Defendants countered with records showing that Minerly did not file his first five grievances with a grievance officer -- even after the Board returned them with instructions to do so. That step was required regardless of whether the counselor adequately responded or even responded at all. Further, the Defendants elicited testimony from Minerly that he did not correct the errors with the two grievances Yates rejected or wait more than two weeks for Yates to respond to the other three. As for Minerly's sixth grievance about the inmate complaint system overall, the chairperson of the Board testified that attaching copies of earlier grievances did not entitle Minerly to review of their substance because they had not gone through the required steps. From this evidence, the district court concluded that Minerly's testimony about being prevented from properly exhausting was not credible and that he had administrative remedies available to him that he did not properly use. It found instead that Minerly submitted two grievances improperly and failed to give Yates sufficient time to respond to the other three. Additionally, Minerly did not submit any of those grievances to a grievance officer, nor did he correct the deficiencies and resubmit them when the Board gave him the chance to do so. Therefore, the court granted summary judgment for the Defendants. On appeal, Minerly contends that Yates's non-responses rendered the administrative process effectively unavailable to him and that the district court improperly resolved factual disputes on this point. When a district court, after a Pavey hearing, enters judgment against a prisoner for failure to exhaust, the Seventh Circuit reviews its legal decisions de novo and its factual findings for clear error. It will find that a district court's findings were clearly erroneous only if it credited testimony that was facially implausible or contradicted by irrefutable evidence, or else discredited testimony on irrational grounds. The Seventh Circuit holds that it did not happen in the case. It says, although Minerly asserts that the district court exceeded its role at summary judgment, after a Pavey hearing, the district court is empowered to make credibility determinations and factual findings about matters pertaining to exhaustion. Evidence, including Minerly's own testimony, showed that Yates gave him reasons for returning two grievances and that he appealed the other three without waiting for Yates to respond. And he further confirmed that he did not submit any of his grievances to a grievance officer, as required, before appealing directly to the Board. Nothing in the record compelled a conclusion that Yates intended to prevent Minerly from exhausting, and the court was not required to credit Minerly's speculation to that effect. Having determined that Minerly did not follow the required procedures in the Illinois Administrative Code, the district court rightly granted summary judgment in favor of the Defendants. Mr. Minerly also contends that the district court erred in dismissing the class-action claim at screening, but the dismissal was proper. The alleged inadequacy of a state's grievance procedure cannot, in itself, give rise to a constitutional claim. If a state's grievance procedure is constitutionally inadequate, the remedy is to excuse the affected inmate from the exhaustion requirement. The Seventh Circuit has considered Minerly's remaining arguments, and none has merit. Accordingly, it affirmed. A full-text copy of the Court's Oct. 20, 2021 Order is available at https://tinyurl.com/3vx3mxd9 from Leagle.com. ILLINOIS: Parents Sue School Districts of Mask Requirements ----------------------------------------------------------- Megan Valley, writing for Belleville News-Democrat, reports that parents from 145 Illinois school districts filed a class-action lawsuit on Oct. 20 against their respective districts, Gov. J.B. Pritzker, State Superintendent of Education Carmen Ayala and Director of the Illinois Department of Public Health Dr. Ngozi Ezike over COVID-19 mask requirements and school exclusions. Metro-east districts named as defendants in the lawsuit include: Collinsville CUSD 10, Highland CUSD 5, Waterloo CUSD 5, Bond County CUSD 2, Edwardsville CUSD 7, Triad CUSD 2, Wesclin CUSD 3, Columbia CUSD 4, Mascoutah CUSD 19, Red Bud CUSD 132, and Carlyle CUSD 1. Pritzker announced an executive order in August requiring masks in Illinois schools for teachers, students, staff and visitors, regardless of vaccination status. Many school districts saw protests from parents over the summer around mask mandates, both before and after Pritzker's executive order. While large, organized demonstrations have become less common further into the school year, some parents are still regularly attending school board meetings to advocate against the mask mandate during public comment. Tom DeVore, the Bond County attorney attached to the lawsuit, has prolifically filed lawsuits around the state related to executive orders made during the COVID-19 pandemic. In several school districts, DeVore has secured temporary restraining orders for students against their school districts, meaning they could attend school without a mask. Many of the parents who already received temporary restraining orders for their children, including parents in Bond 2 and Carlyle 1, are listed again on the class-action lawsuit. The temporary restraining orders were limited to 30 days before an extension would need to be filed to continue school without masks. Two of the metro-east school districts named as defendants, Red Bud CUSD 132 and Carlyle CUSD 1, already defied Pritzker's executive order at the beginning of the school year. ISBE sent both districts -- and dozens of others around the state -- letters indicating they were being put on probation for noncompliance; Red Bud and Carlyle changed course to require masks and follow the state mandate. The hearing is set for Nov. 5 at 1:30 p.m. in Macoupin County. [GN] INCOME PROPERTY: Rosemont Court Resident Files Class Action ----------------------------------------------------------- Sophie Peel, writing for Willamette Week, reports that a resident of the senior living affordable Rosemont Court in North Portland, where 14 seniors have become ill, one fatally, with airborne Legionnaires' disease since the beginning of the year, filed a class action lawsuit Oct. 18 against the property manager. It's the second lawsuit within a week filed by a tenant against Income Property Management, which manages the building. (WW reported the first at wweek.com.) This one is a class-action suit -- the plaintiff, Esther Lewis, is demanding the property manager refund all rent paid by residents since the year began. What the lawsuit says: Lewis, who filed the lawsuit in Multnomah County Circuit Court, alleges Income Property Management, a Portland company that manages 168 buildings in Oregon and Southwest Washington, failed to protect residents on North Dekum Street from their own water supply. "Over the past year, defendant has failed to maintain North Portland's Rosemont Court senior living center in a safe and habitable condition," the lawsuit alleges. "Defendant's failure to provide a safe water supply to the center has killed one senior and sickened over a dozen others with Legionnaires' disease." The plaintiff is filing the claim for herself and other residents "who experienced a diminution in rental value caused by defendant's failure to maintain Rosemont Court in a safe and habitable condition." The lawsuit further alleges management failed to "timely and adequately inspect for Legionella, adequately test for Legionella on a regular periodic basis, adequately and timely warn tenants about the presence of Legionella, adequately and timely remediate Legionella, and to be completely forthright about defendant's handling of the Legionella outbreak." Lewis is asking for a trial by jury. What the plaintiff says: Lewis contracted Legionnaires' disease earlier this year, and her daughter Byrd says her mother's mental and physical health has steeply degraded since then. Legionnaires' disease is caused by bacteria found in water and is dangerous when water particles are inhaled into the lungs. Lewis has preexisting health conditions that make getting such a respiratory illness more deadly. Her daughter is in the process of moving Lewis out of Rosemont Court now. Byrd says her mother filed the lawsuit because "at this point, it's the only recourse she has." "She can no longer walk. She's suffered greatly from the Legionella and having to move, the stress of it all, and having to acclimate to a new environment," Byrd says. "I can't risk her getting it again." What the defendant says: Income Property Management did not comment on the lawsuit, but called the situation "unfortunate and complicated." Why it matters: Since early January, 14 residents of the low-income senior building have fallen ill after breathing in bacteria from their apartments' running water. The Legionnaires' outbreak has baffled Multnomah County health officials and underlined the scarce options that elderly people with little money face. Like Lewis, most of the building's remaining residents -- more than 80 of them -- have nowhere else to go. A 14th resident became sick with the disease on Sept. 27. It's the first documented case since June. Residents were alerted to the latest case by the Multnomah County Health Department on Oct. 1, which has struggled to identify the origins of the outbreak. Rosemont Court has outfitted each of the residents' apartments with filters on every faucet to lessen the risk of residents inhaling bacteria, and has routinely tested the water. The building is owned by the affordable housing provider Northwest Housing Alternatives, which has strongly urged residents to permanently relocate since the first outbreak in January but has not made moving mandatory. Due to high rent and a lack of affordable housing options, many residents have chosen to stay. [GN] INNOVAGE HOLDING: Hagens Berman Reminds of Dec. 13 Deadline ----------------------------------------------------------- Hagens Berman urges InnovAge Holding Corp. (NASDAQ: INNV) investors with significant losses to submit your losses now. Class Period: Mar. 2, 2021 - Oct. 14, 2021 Lead Plaintiff Deadline: Dec. 13, 2021 Visit: www.hbsslaw.com/investor-fraud/INNV Contact An Attorney Now: INNV@hbsslaw.com 844-916-0895 InnovAge Holding Corp. (INNV) Securities Class Action: The action alleges that InnovAge and other insiders made false and misleading statements in the registration statement for the company's March 2021 IPO, which allowed InnovAge to raise over $373.6 million in proceeds. Specifically, the registration statement omitted, among other facts, that: (1) certain of InnovAge's facilities failed to provide covered services, provide accessible and adequate services, manage participants' medical situations, and oversee use of specialists; (2) as a result, the company was reasonably likely to be subject to regulatory scrutiny, including by the Centers for Medicare and Medicaid Services (CMS); and (3) consequently, there was a significant risk that CMS would suspend new enrollments pending an audit of the company's services. The registration statement's accuracy was brought into question on Sep. 21, 2021, when the company revealed that CMS determined to freeze new enrollments at its Sacramento facility based on observed deficiencies. On this news, the company's stock price fell $2.90 per share, or 25%, in a single trading day. As of the filing of the complaint, InnovAge trades nearly 70% below the $20 IPO price. "We're focused on investors' losses and proving the IPO registration statement negligently failed to disclose the problems at InnovAge's facilities," said Reed Kathrein, the Hagens Berman partner leading the investigation. If you invested in InnovAge and have significant losses, or have knowledge that may assist the firm's investigation, click here to discuss your legal rights with Hagens Berman. Whistleblowers: Persons with non-public information regarding InnovAge should consider their options to help in the investigation or take advantage of the SEC Whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 844-916-0895 or emailmailto: INNV@hbsslaw.com. About Hagens Berman Hagens Berman is a national law firm with eight offices in eight cities around the country and over eighty attorneys. The firm represents investors, whistleblowers, workers and consumers in complex litigation. More about the firm and its successes is located at hbsslaw.com. Contact: Reed Kathrein, 844-916-0895 [GN] INSTACART: Shoppers Labor Class Action Pending in Canada -------------------------------------------------------- Sotos Class Actions disclosed that the Instacart shoppers class action seeks compensation for unpaid minimum employment standards entitlements, including minimum wage, and misclassification of Instacart full-service shoppers. Instacart employs full-service shoppers to perform same-day shopping and delivery services to its customers in Canada via the Instacart app. This case alleges that Instacart's full-service shoppers are in fact employees and not independent contractors and that Instacart is responsible for complying with Canadian employment laws and ensuring that its shoppers are properly compensated for all hours they work. Instacart dictates how, when, and where full-service shoppers work and how much they earn. Instacart shoppers have no control over their batch earnings or conditions of employment. Shoppers must comply with Instacart's strict guidelines concerning their employment and use of the Instacart app or face lowered star ratings and/or unilateral deactivation of their accounts. The plaintiff alleges that Instacart breached Canadian employment laws by failing to pay full-service shoppers for their minimum employment standards entitlements since 2015. [GN] INTEL CORP: Bid to Nix Class Suit Over 7nm Product Delays Pending ----------------------------------------------------------------- Intel Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 25, 2021, that the motion to dismiss filed in the consolidated securities class action related to the company's July 2020 announcement of 7nm product delays, is pending. Starting in July 2020, five securities class action lawsuits were filed in the U.S. District Court for the Northern District of California against Intel and certain current and former officers based on Intel's July 2020 announcement of 7nm product delays. The plaintiffs, who purport to represent classes of acquirers of Intel stock between October 2019 and July 2020, generally allege that the defendants violated securities laws by making false or misleading statements about the timeline for 7nm products in light of subsequently announced delays. In October 2020, the court consolidated the lawsuits and appointed lead plaintiffs, and in January 2021 the lead plaintiffs filed a consolidated complaint. Defendants moved to dismiss the consolidated complaint in March 2021. Intel said, "We dispute the claims described above and intend to defend the lawsuits vigorously. Given the procedural posture and the nature of those cases, including that the pending proceedings are in the early stages, that alleged damages have not been specified, that uncertainty exists as to the likelihood of a class or classes being certified or the ultimate size of any class or classes if certified, and that there are significant factual and legal issues to be resolved, we are unable to make a reasonable estimate of the potential loss or range of losses, if any, that might arise from those matters. In July 2021, Intel introduced a new process node naming structure, and the 7nm process is now Intel 4." Intel Corporation offers computing, networking, data storage, and communication solutions worldwide. It operates through Client Computing Group, Data Center Group, Internet of Things Group, Non-Volatile Memory Solutions Group, Programmable Solutions Group, and All Other segments. The company was founded in 1968 and is based in Santa Clara, California. INTEL CORP: Spectre and Meltdown Virus-Related Suits Underway ------------------------------------------------------------- Intel Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 25, 2021, that the company continues to defend suits, including class action suits related to Spectre and Meltdown virus. In June 2017, a Google research team notified us and other companies that it had identified security vulnerabilities (now commonly referred to as "Spectre" and "Meltdown") that affect many types of microprocessors, including our products. As is standard when findings like these are presented, the company worked together with other companies in the industry to verify the research and develop and validate software and firmware updates for impacted technologies. On January 3, 2018, information on the security vulnerabilities was publicly reported, before software and firmware updates to address the vulnerabilities were made widely available. Numerous lawsuits have been filed against Intel and, in certain cases, the company's current and former executives and directors, in U.S. federal and state courts and in certain courts in other countries relating to the Spectre and Meltdown security vulnerabilities, as well as other variants of these vulnerabilities that have since been identified. As of October 20, 2021, consumer class action lawsuits relating to the above class of security vulnerabilities publicly disclosed since 2018 were pending in the United States, Canada, and Israel. The plaintiffs, who purport to represent various classes of purchasers of our products, generally claim to have been harmed by Intel's actions and/or omissions in connection with the security vulnerabilities and assert a variety of common law and statutory claims seeking monetary damages and equitable relief. In the United States, numerous individual class action suits filed in various jurisdictions were consolidated in April 2018 for all pretrial proceedings in the U.S. District Court for the District of Oregon. In March 2020, the court granted Intel's motion to dismiss the complaint in that consolidated action but granted plaintiffs leave to amend. In March 2021, the court granted Intel's motion to dismiss the amended complaint, but granted plaintiffs leave to further amend in part. Plaintiffs filed a further amended complaint in May 2021 which Intel moved to dismiss in July 2021. In Canada, in one case pending in the Superior Court of Justice of Ontario, an initial status conference has not yet been scheduled. In a second case pending in the Superior Court of Justice of Quebec, a stay of the case is in effect until December 2021. In Israel, two consumer class action lawsuits were filed in the District Court of Haifa. The plaintiff voluntarily dismissed the first lawsuit in July 2021. Intel filed a motion to stay the second case pending resolution of the consolidated proceeding in the United States, and a hearing on that motion has been scheduled for April 2022. Additional lawsuits and claims may be asserted seeking monetary damages or other related relief. Intel said, "We dispute the pending claims described above and intend to defend those lawsuits vigorously. Given the procedural posture and the nature of those cases, including that the pending proceedings are in the early stages, that alleged damages have not been specified, that uncertainty exists as to the likelihood of a class or classes being certified or the ultimate size of any class or classes if certified, and that there are significant factual and legal issues to be resolved, we are unable to make a reasonable estimate of the potential loss or range of losses, if any, that might arise from those matters." Intel Corporation offers computing, networking, data storage, and communication solutions worldwide. It operates through Client Computing Group, Data Center Group, Internet of Things Group, Non-Volatile Memory Solutions Group, Programmable Solutions Group, and All Other segments. The company was founded in 1968 and is based in Santa Clara, California. INTERHEALTH NUTRACEUTICALS: Woodard Appeals Ruling in Fraud Suit ---------------------------------------------------------------- Plaintiffs Veda Woodard, et al., filed an appeal from a court ruling entered in the lawsuit styled VEDA WOODARD, TERESA RIZZO-MARINO, and DIANE MORRISON, on behalf of themselves, all others similarly situated, and the general public v. LEE LABRADA; LABRADA BODYBUILDING NUTRITION, INC. LABRADA NUTRITIONAL SYSTEMS, INC.; DR. MEHMET C. OZ, M.D.; ENTERTAINMENT MEDIA VENTURES, INC. d/b/a OZ MEDIA; ZOCO PRODUCTIONS, LLC; HARPO PRODUCTIONS, INC; SONY PICTURES TELEVISION, INC; NATUREX, INC.; and INTERHEALTH NUTRACEUTICALS, INC., Case No. 5:16-cv-00189-JGB-SP, in the U.S. District Court for the Central District of California, Riverside. On February 2, 2016, Plaintiff Veda Woodard filed a putative class action complaint arising from allegations that the Defendants misrepresented the weight loss benefits of various weight loss supplement products manufactured by the Manufacturing Defendants. The Plaintiff, joined by two other plaintiffs, filed a first amended complaint on June 2, 2016. The FAC raises various state and federal statutory and common law fraud, false advertising, and other consumer protection claims. Plaintiff Woodard, a viewer of "The Doctor Oz Show" and a consumer of the weight loss supplements, alleges Dr. Oz fraudulently promoted and marketed the weight loss benefits of Labrada Dual Action Fat Buster with Supercitrimax Garcinia Cambogia, Labrada Fat Loss Optimizer with Svetol Green Coffee Bean Extract, and Labrada Brand Raspberry Ketones on his daytime television show. The Plaintiff specifically asserts Dr. Oz, a renowned celebrity physician and television personality, was paid by the Manufacturing Defendants in exchange for promoting the weight loss products at issue, but he failed to disclose his endorsements to his viewers. Additionally, the Plaintiff alleges the Media Defendants produced and/or distributed the Show. Plaintiff claims each of the defendants acted as each other's agents and aided and abetted one other, such that they are all jointly liable for Dr. Oz's misrepresentations on the Show. The Plaintiff seeks a review of the Court's Order dated August 31, 2021, granting InterHealth's Motion for Summary Judgment; granting in part and denying in part LBN's Motion for Summary Judgment; granting in part and denying in part Labrada Defendants' Motion for Summary Judgment; and granting in part and denying in part Plaintiffs' Motion for Class Certification, as well as the Court's Order and Judgment dated September 30, 2021, granting Defendant Interhealth Nutraceuticals, Inc.'s motion for summary judgment. The appellate case is captioned as Veda Woodard, et al. v. Interhealth Nutraceuticals Inc, et al., Case No. 21-56132, in the United States Court of Appeals for the Ninth Circuit, filed on Oct. 15, 2021. The briefing schedule in the Appellate Case states that: -- Appellants Diane Morrison, Teresa Rizzo-Marino and Veda Woodard Mediation Questionnaire was due on October 22, 2021; -- Transcript shall be ordered by November 15, 2021; -- Transcript is due on December 13, 2021; -- Appellants Diane Morrison, Teresa Rizzo-Marino and Veda Woodard opening brief is due on January 24, 2022; -- Appellee Interhealth Nutraceuticals, Inc. answering brief is due on February 23, 2022; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants VEDA WOODARD, TERESA RIZZO-MARINO, and DIANE MORRISON, on behalf of themselves, all others similarly situated, and the general public, are represented by: Timothy Douglas Cohelan, Esq. J. Jason Hill, Esq. Isam Charles Khoury, Esq. Michael David Singer, Esq. COHELAN KHOURY & SINGER 605 C Street San Diego, CA 92101-5305 Telephone: (619) 595-3001 - and - Michael Houchin, Esq. Ronald A. Marron, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Defendant-Appellee INTERHEALTH NUTRACEUTICALS, INC. is represented by: Adam Patrick O'Connor, Esq. CLARK HILL LLP 600 W. Broadway, Suite 500 San Diego, CA 92101 Telephone: (619) 557-0404 ITS TECHNOLOGIES: Ortega's Bid to Remand Suit to State Court Denied ------------------------------------------------------------------- In the case, RUDY ORTEGA; and CLEMENTE SANDOVAL, individually, and on behalf of other members of the public similarly situated, Plaintiffs v. ITS TECHNOLOGIES & LOGISTICS, LLC; CONGLOBAL INDUSTRIES, LLC; CONGLOBAL TRANSPORT, LLC; and DOES 1 through 100, inclusive, Defendants, Case No. 5:21-cv-00562-JWH-KKx (C.D. Cal.), Judge John W. Holcomb of the U.S. District Court Central District of California denied the Plaintiffs' motion to remand the action to state court. Background On Feb. 11, 2021, the Plaintiffs filed their Complaint commencing this putative class action in the San Bernardino County Superior Court. In their Complaint, the Plaintiffs assert the following eight claims for relief against Defendants ITS Technologies & Logistics, LLC; Conglobal Industries, LLC; and Conglobal Transport, LLC: (1) Violation of Cal. Lab. Code Sections 510 and 1198 (Unpaid Overtime); (2) Violation of Cal. Lab. Code Sections 226.7 and 512(a) (Unpaid Meal Period Premiums); (3) Violation of Cal. Lab. Code Section 226.7 (Unpaid Rest Period Premiums); (4) Violation of Cal. Lab. Code Sections 1194, 1197, and 1197.1 (Unpaid Minimum Wages); (5) Violation of Cal. Lab. Code Sections 201 and 202 (Final Wages Not Timely Paid); (6) Violation of Cal. Lab. Code Section 226(a) (Non-Compliant Wage Statements); (7) Violation of Cal. Lab. Code Sections 2800 and 2802 (Unreimbursed Business Expenses); and (8) Violation of Cal. Bus. & Prof. Code Sections 17200, et seq. On March 31, 2021, the Defendants removed the action to the Court pursuant to 28 U.S.C. Section 1441, asserting jurisdiction under the Class Action Fairness Act (the "CAFA"), 28 U.S.C. Section 1332(d). The Plaintiffs filed the instant Motion on April 30, 2021; the Defendants opposed on May 7; and the Plaintiffs replied on May 28. As alleged in the Complaint, the Defendants "employed the Plaintiffs as hourly-paid non-exempt employees from 2016 to 2019 in the State of California, County of San Bernardino." The Plaintiffs bring the action individually and on behalf of all others similarly situated. The class is defined as "all current and former California-based hourly-paid or non-exempt employees of the Defendants within the State of California at any time during the period from Aug. 16, 2016 to final judgment." The Plaintiffs allege that they and the other hourly-paid non-exempt employee class members ("PCMs") "worked over eight hours in a day, and/or 40 hours in a week during their employment with the Defendants." On information and belief, the Plaintiffs assert that Defendants "engaged in a pattern and practice of wage abuse" against the Plaintiffs and the PCMs, including failing to pay them "for all hours worked, missed meal periods, and missed rest breaks in violation of California law." The Plaintiffs further aver that the Defendants failed to pay in a timely manner them and the other PCMs all wages owed to them upon their discharge or resignation. The Defendants also allegedly failed to pay minimum wages; failed to provide accurate wage statements; and failed to reimburse the Plaintiffs and the PCMs for business-related expenses. Finally, the Plaintiffs contend that those business practices, taken together, are unlawful in violation of Cal. Bus. & Prof. Code Sections 17200, et seq. Before the Court is the motion of the Plaintiffs to remand the action to state court. Discussion The Defendants removed the action to the Court pursuant to 28 U.S.C. Section 1441, asserting jurisdiction under the CAFA. Therefore, they bear the burden of establishing that the Court has original subject matter jurisdiction over the action. As a threshold matter, the parties agree that there is minimal diversity, as required by the CAFA. The only jurisdictional dispute is with respect to the amount in controversy requirement under the CAFA. The Plaintiffs challenge the Defendants' invocation of CAFA jurisdiction on the ground that the Defendants have not satisfied the amount in controversy requirement. In their Notice of Removal, the Defendants state that the aggregate amount in controversy for all PCMs exceeds $5 million. To calculate the amount in controversy, the Defendants analyzed the payroll and employment records of Defendant CSI for the four-year period from Feb. 11, 2017, through March 23, 2021, which the Defendants summarize as follows: (i) there are 1,055 PCMs who currently work or have worked for Defendants as non-exempt employees in California during the Class Period; (ii) PCMs worked an aggregate of 103,478 workweeks during the Class Period; and (iii) PCMs had an average hourly rate of $20.30 during the Class Period. The Plaintiffs contend that the Defendants have not shown, by a preponderance of the evidence, that the amount in controversy meets or exceeds the $5 million threshold because, according to the Plaintiffs, the Defendants' assumptions are unreasonable. As to Meal and Rest Period claims, Judge Holcomb finds that an assumption of one meal period violation and one rest period violation per week is reasonable in view of the Plaintiffs' allegations. The Defendants additionally discounted their calculation to assume that only 75% of the putative class suffered violations at that rate. With those assumptions in place, the total amount in controversy for Plaintiffs' Meal and Rest Period Claims is $3,150,905.10. As to Wage Statement Claim, Judge Holcomb finds that the amount in controversy for the Wage Statement Claim is $1,624,000. Consistent with the Plaintiffs' allegations, the Defendants assume that only 50% of the PCMs experienced a wage statement violation. The Plaintiffs' allegation that the Defendants had a "pattern and practice" of failing to provide accurate wage statements supports application of a 100% violation rate with respect to that 50% of the PCMs whom the Defendants assume suffered a violation. With respect to Waiting Time Penalty Claim, Judge Holcomb finds that the 75% violation rate the Defendants' employ is reasonable in view of the Plaintiffs' broad allegations. Furthermore, the Defendants' assumption of the maximum 30-day period of penalties is reasonable because the Plaintiffs allege that they are entitled to recover "penalty wages for each day they were not paid, up to the 30-day maximum." Accordingly, the amount in controversy for the Waiting Time Penalty Claim is $1,338,274.80. Based upon the foregoing, the total amount in controversy for the Plaintiffs' Second, Third, Fifth, and Sixth Claims for relief alone is $6,113,179.90, which exceeds the $5 million jurisdictional threshold. Conclusion For the foregoing reasons, Judge Holcomb concludes that the Defendants have shown by a preponderance of the evidence that the amount in controversy meets or exceeds the $5 million threshold under the CAFA. Accordingly, he denied the Plaintiffs' Motion. The counsel for the parties are directed to meet and confer and to file a Joint Report providing the Court with the parties' respective proposed case schedules, including a briefing schedule on the Plaintiffs' anticipated motion for class certification. The Court sets a video Scheduling Conference on Nov. 5, 2021, at 11:00 a.m. A full-text copy of the Court's Oct. 22, 2021 Order is available at https://tinyurl.com/2jn5cr7m from Leagle.com. JOHNSON & JOHNSON: Wayne Township to Participate in Settlement -------------------------------------------------------------- Jon "Ferris" Meredith at tapinto.net reports that the Town Council voted during the last council meeting to participate in the settlement of a nationwide class action lawsuit that was brought against New Jersey-based Johnson & Johnson and the country's three largest pharmaceutical distributors - McKesson, Cardinal Health, and AmerisourceBergen. The lawsuit was to "resolve claims involving their roles in fomenting the country's opioid crisis," according to a statement released by the New Jersey Acting Attorney General Andrew J. Bruck. Wayne Township Attorney Matt Giacobbe told the council members that the lawsuit is over, and that by participating now, the township would receive a portion of the settlement, though what that portion would be is not yet known. Giacobbe said that the Township had "lots of expenses related to the opioid crisis," but that they would be "difficult to quantify." He mentioned the cost of Narcan, which is what the Wayne PD and Wayne First Aid Squad give to help someone overdosing on heroin or an opiate-based pain medication. "It's a huge, huge epidemic that we are confronted with on almost a daily basis; between arrests or people that are suffering from drug addiction." He also brought up police overtime and that the Wayne Police Department has, in the past, assigned officers full-time to the DEA and other task forces "to help prosecute people that are trafficking drugs," which he said was "a huge expense." The Acting Attorney General stated that New Jersey could receive as much as $600 million as part of what could be a $26 Billion nationwide settlement. NJ's portion will be distributed through some formula yet unknown. Giacobbe believes that because Wayne is a "large municipality, I think that we stand to get a sizable amount." However, "no amount of money will ever be enough to heal the wounds caused by this opioid crisis," said Acting Attorney General Bruck in his statement. "These settlements will bring hundreds of millions of dollars into New Jersey to fund life-saving addiction prevention, treatment, and recovery programs, and will require these drug companies to change their business practices so that this never happens again. The victims of this crisis deserve nothing less." TAPinto will continue to follow this developing story. [GN] JP MORGAN: Behrens Appeals Ruling in RICO Suit to 2nd Circuit ------------------------------------------------------------- Plaintiffs Bruce Behrens, et al., filed an appeal from a court ruling entered in the lawsuit styled BRUCE BEHRENS, KATHLEEN BEHRENS, SHERRY SCHEFFERT AND DAVID SCHEFFERT, RICHARD WAKEFORD on behalf of themselves and all other similarly situated, v. JPMORGAN CHASE BANK, N.A., U.S. BANK, N.A., CHICAGO MERCANTILE EXCHANGE, INC. MILLENIUM TRUST COMPANY a/k/a MILLENIUM TRUST CO. LLC, RUSSELL WASENDORF,. RUSSELL WASENDORF, JR. STEVEN BREWER a/k/a STEVEN JOHN BREWER, GARLON MAXWELL, AMBER MAXWELL, PERRY COMEAU, John Does #1-40, Case 1:16-cv-05508, in the U.S. District Court for the Southern District of New York (New York City). Plaintiffs Bruce Behrens, Kathleen Behrens, Sherri Scheffert, David Scheffert, and Richard Wakeford brought this action against Defendants asserting violations of the Commodity Exchange Act and the Racketeer Influenced and Corrupt Organizations Act, along with various state common law claims. The Plaintiffs allege that they invested with Peregrine Financial Group, Inc., a futures commission merchant. They assert that they suffered significant thefts from and losses in their Peregrine accounts prior to and during the market crash that occurred in approximately October 2008. These thefts and losses were caused by a massive conspiracy-referred to in the Second Amended Complaint as the "RICO Ponzi Scheme" in which some or all Defendants conspired to permit Russell Wasendorf, Sr., Peregrine's CEO and Chairman, to steal customer funds from segregated accounts held by Peregrine. The Plaintiffs now seek a review of the Court's Order dated March 31, 2019, denying their cross-motion to strike Defendant Millennium's arbitration agreement and/or stay the arbitration pending the outcome of the litigation, and denying their motion to amend, as well as Court's Order dated September 9, 2021, denying their motion for reconsideration. The appellate case is captioned as Behrens v. JP Morgan Chase Bank, N.A., Case No. 21-2603, in the United States Court of Appeals for the Second Circuit, filed on Oct. 15, 2021.[BN] Plaintiffs-Appellants Bruce Behrens, Kathleen Behrens, David Scheffert, Richard Wakeford, and Sherri Scheffert, on behalf of themselves and all others similarly situated, are represented by: Susan Joan Levy, Esq. SUSAN J. LEVY, ESQ. 40 East 10th Street New York, NY 10003 Telephone: (212) 962-1782 E-mail: susanjlevy@aol.com Defendants-Appellees JP Morgan Chase Bank, N.A., U.S. Bank, N.A., Chicago Mercantile Exchange, Inc., Millenium Trust Company, AKA Millenium Trust Co. LLC, Russell Wasendorf, Jr., Perry Comeau, The CME Group, Inc., National Futures Association, and Paul Thomas are represented by: Christopher J. Houpt, Esq. MAYER BROWN LLP 1221 Avenue of the Americas New York, NY 10020 Telephone: (212) 506-2380 - and - Eric R. Sherman, Esq. DORSEY & WHITNEY LLP 50 South 6th Street Minneapolis, MN 55402 Telephone: (612) 492-6609 - and - Abby Rudzin, Esq. O'MELVENY & MYERS LLP Times Square Tower 7 Times Square New York, NY 10036 Telephone: (212) 326-2000 - and - Nicholas A. Caputo, Esq. CAPUTO & POPOVIC, P.C. 739 South Western Avenue Chicago, IL 60612 Telephone: (312) 300-3800 - and - Louis V. Fasulo, Esq. FASULO BRAVERMAN & DI MAGGIO, LLP 225 Broadway New York, NY 10007 Telephone: (212) 566-6213 - and - Julie B. Negovan, Esq. GRIESING LAW, LLC 68 3rd Street Brooklyn, NY 11231 Telephone: (215) 618-3720 - and - Gregory M. Boyle, - JENNER & BLOCK LLP 353 North Clark Street Chicago, IL 60654 Telephone: (312) 923-2651 - and - Lisa Lynn Shrewsberry, Esq. TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP Mid-Westchester Executive Park 7 Skyline Drive Hawthorne, NY 10532 Telephone: (914) 347-2600 JUAN BARCENAS: Court Conditionally Certifies Class in Tremols Suit ------------------------------------------------------------------ In the case, CARLOS TREMOLS, individually and on behalf of all others similarly situated, PLAINTIFF v. JUAN BARCENAS INSURANCE AND FINANCIAL SERVICES, LLC and JUAN BARCENAS, DEFENDANTS, Case No. 5:21-CV-05057 (W.D. Ark.), Judge P.K. Holmes, III, of the U.S. District Court for the Western District of Arkansas, Fayetteville Division, granted the Plaintiff's motion for conditional certification. Background The Plaintiff seeks conditional certification to provide notice to all account managers employed by the Defendants since March 17, 2018. The Defendants own and operate a State Farm insurance agency. The Plaintiff was employed by the Defendants as an account manager and was primarily tasked with making sales calls to potential customers. The Plaintiff alleges he and other account managers regularly worked over 40 hours per week but were not paid 1.5x their hourly rate for overtime work. The Plaintiff argues approximately 10 to 15 account managers were employed by the Defendants and were not compensated for overtime work. He alleges the Defendants have violated the Fair Labor Standards Act, 29 U.S.C. Section 201, et seq. ("FLSA") and the Arkansas Minimum Wage Act, Ark. Code Ann. Section 11-4-201, et seq. ("AMWA"). The Plaintiff seeks conditional certification of his FLSA claim as a collective action pursuant to 29 U.S.C. Section 216(b), approval of authorization to issue notice to putative class members, disclosure of contact information, and approval of the proposed notice and consent-to-join forms. Discussion A. Conditional Certification The Defendants argue the Plaintiff failed to identify similarly situated employees. They also argue the Plaintiff's affidavit is devoid of facts to support his arguments for conditional certification. However, the Plaintiff's affidavit states other account managers were not correctly paid overtime. The affidavit is based on the Plaintiff's personal knowledge derived from his employment and discussions with other account managers. The decision to certify a class is typically determined "based solely on the affidavits presented by plaintiffs." Judge Holmes opines that the Plaintiff has presented sufficient evidence of a similarly situated class based on his personal knowledge. The Plaintiff's testimony, based on experience and discussions with account managers, is that account managers were not paid overtime for hours worked in excess of 40 per week. His affidavit is based on his personal knowledge of the de facto policy gained as the Defendants' employee. Further, it is not necessary for the Plaintiff to allege the Defendants failed to provide overtime pursuant to a formal policy. The Plaintiff's evidence is sufficient at this stage to demonstrate the Defendants' common policy of miscalculating overtime wages. Considering the factors listed, Judge Holmes opines that under the lenient standard applicable to this notice stage of certification, the Plaintiff has met his burden to demonstrate that he is similarly situated with other putative class members. Accordingly, Judge Holmes will conditionally certify the action. Regarding the class definition, the Plaintiff requests that the Court conditionally certifies and approves notice for the following class: "All account managers employed by Juan Barcenas Insurance and Financial Services, LLC, and Juan Barcenas since March 17, 2018." The Defendants make no objection to this class definition. However, because the definition does not specify the grievance which makes potential plaintiffs similarly situated (failure to be compensated for time worked in excess of 40 hours per week), Judge Holmes amended the definition to read as follows: "All account managers employed by Juan Barcenas Insurance and Financial Services, LLC, and Juan Barcenas who worked more than forty hours in any week anytime since March 17, 2018." B. Form of Notice and Consent-to-Join The Plaintiff has submitted a proposed notice, a consent to join for mailed submissions, a consent to join for electronic submissions, and a second notice of right to join (to be sent to non-responding class members 30 days after the initial notice is sent). The Defendants object to certain aspects of these documents and propose certain changes. With exception to the changes below, Judge Holmes holsds the notice should remain as proposed. He orders the proposed notice to be changed as follows: "(4) DESCRIPTION OF THE LAWSUIT: Plaintiff in this case is a former Account Manager for Defendants Juan Barcenas Insurance and Financial Services, LLC, and Juan Barcenas (collectively referred to as Defendant). Plaintiff filed a lawsuit against Defendant asserting that Defendant violated federal law in failing to pay its Account Managers correctly. Defendant denies Plaintiff's claims and allegations. Defendant asserts that it complied with the law and properly compensated all of its Account Managers. This case has been set for trial the week of March 21, 2022. If the case is not settled between the parties, a trial will be held at the United States District Court for the Western District of Arkansas in Fayetteville. The Court has not ruled on or decided any of the issues, including the merits of the claims or defenses." The "TO:" field in the notice must also be changed to read: All account managers employed by Juan Barcenas Insurance and Financial Services, LLC, and Juan Barcenas who worked more than forty hours in any week anytime since March 17, 2018. The email notice remains as proposed." Judge Holmes orders the postcard be changed to read as follows: "On _______ ___, 2021, you were sent a Notice of Right to Join Lawsuit informing you of a lawsuit in which you could become a member as an Opt-In Plaintiff. You are being sent this second Notice because you must join the lawsuit if you want to become a member of the class. If you did not receive the first Notice and would like a copy, please contact Plaintiff's attorney listed below. If you already sent a Consent, it has not been received. The consent must be received by _______ ___, 2021. The Court neither encourages nor discourages participation in this lawsuit." The title of the postcard should also be changed from "Second Notice of Right to Join Lawsuit" to "Reminder of Right to Join Lawsuit." This change will ensure the putative class members are informed of the Court's neutrality on the matter and rephrasing the title of the postcard will only improve its accuracy. The language of the physical and electronic consents to join must be changed. As written, the consent to join states "I consent to becoming a party-plaintiff in this lawsuit, to be represented by Sanford Law Firm, PLLC, and to be bound by any settlement of this action or adjudication by the Court." This language has a tendency to mislead potential opt-in parties about the allocation of authority in the attorney-client relationship, specifically the authority to settle. Judge Holmes finds that the Plaintiff has provided no authority to support a finding that the FLSA allows an attorney to turn this allocation of authority on its head and require clients to abide by a lawyer's decision to settle a matter, yet that is how the language in the consents reads. The last sentence of each consent must be modified before dissemination to read "I consent to becoming a party-plaintiff in this lawsuit, to be represented by Sanford Law Firm, PLLC, and to be bound by any adjudication by the Court." Consents to join that use the stricken language and that have already been filed must be refiled with the modified language required by this order. A refiled consent will take the date of the earlier-filed consent for statute of limitation and similar purposes. D. Dissemination of Notice and Requests for Information The Plaintiff has also requested notice through U.S. Mail and email. Judge Holmes grant the Plaintiff's request to send a notice through U.S. Mail and to email notice of right to join lawsuit. He also grants the Plaintiff's request to send a second notice of right to join lawsuit via U.S. Mail. The Plaintiffs request notice through email in addition to U.S. Mail because of the problems that occur when notice is sent by U.S. Mail. The proposed email notice also provides the potential class members with a way to sign the consent to join electronically. The Defendants argue email is "overkill" and unwarranted until the Plaintiff receives a significant number of returns or undeliverable mailings in the case. Judge Holmes finds that it is reasonable to permit the Plaintiff to send notice through email. The Plaintiff's request for potential opt-in plaintiffs to sign the consent electronically will also be granted. The Plaintiff proposes a follow-up email or postcard be sent 30 days after the notice is distributed. The Defendants argue that this reminder may be seen as an annoyance to those that receive it. Judge Holmes finds the request to use a reminder postcard should be granted but will not approve the follow-up email. The Plaintiff requests the Court order the Defendants to provide the Plaintiff with a list of the names, last known mailing addresses, and email addresses of all potential plaintiffs within the class description. The Defendants do not dispute this request in its response. Judge Holmes will grant the Plaintiff's request for contact information and the Plaintiff is ordered to appropriately safeguard the contact information and not to use it for any other purpose than the litigation. The Plaintiff also requests the deadline to file opt-in plaintiffs' consent-to-join forms be set no earlier than 90 days after the Defendants provide the putative members' contact information. However, in light of the small class size of potential opt-in plaintiffs, Judge Holmes finds that a 60-day opt-in period is sufficient and will serve the interests of efficiently facilitating notice without further delaying the litigation. Therefore, a 60-day opt-in period is appropriate and will be authorized. Conclusion Judge Holmes granted the Plaintiff's motion for conditional certification of a collective action and approval of notice. He conditionally certifies the case as a collective action pursuant to 29 U.S.C. Section 216(b) and authorizes notice to be sent to potential opt-in plaintiffs. The opt-in class will consist of all account managers employed by Juan Barcenas Insurance and Financial Services, LLC, and Juan Barcenas who worked more than forty hours in any week anytime since March 17, 2018. Within seven days after receiving the contact information for potential opt-in plaintiffs, the Plaintiffs must prepare and distribute notice to all putative plaintiffs as allowed by the Order. The Plaintiffs must file any opt-in plaintiffs' signed consent-to-join forms with the Court within 60 days after receiving the contact information of potential opt-in plaintiffs. The Defendants are directed to provide the names, mailing addresses, and email addresses of all putative members of the collective action. They may provide this information in a manipulatable electronic format such as Microsoft Word of Excel. The Defendants had until Oct. 27, 2021, to deliver the contact information to the Plaintiff. The Plaintiff's proposed notice and consent-to-join forms are approved in accordance with the changes. A full-text copy of the Court's Oct. 20, 2021 Opinion & Order is available at https://tinyurl.com/vr4mktd5 from Leagle.com. KRATON CORP: Monteverde & Associates Probes Firm After Merger ------------------------------------------------------------- Juan Monteverde, founder and managing partner at Monteverde & Associates PC, a national securities firm rated Top 50 in the 2018-2020 ISS Securities Class Action Services Report and headquartered at the Empire State Building in New York City, is investigating: Kraton Corp. (KRA) relating to its proposed acquisition by DL Chemical. Under the terms of the agreement, KRA shareholders will receive $22.00 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/kraton-corp. It is free and there is no cost or obligation to you. [GN] KUNG FU LITTLE: Appeals Judgment in Weng FLSA Suit to 2nd Circuit ----------------------------------------------------------------- Defendants Kung Fu Little Steamed Buns Ramen, Inc., et al., filed an appeal from a court ruling entered in the lawsuit styled Lianhua Weng, Haihua Zhai, and Shimin Yuan, on behalf of themselves and other similarly situated v. Kung Fu Little Steamed Buns Ramen Inc. d/b/a Kung Fu Little Steamed Buns Ramen; Kung Fu Delicacy Inc. d/b/a Kung Fu Little Steamed Buns Ramen; Kung Fu Kitchen Inc. d/b/a Kung Fu Little Steamed Buns Ramen and ZHE SONG a/k/a Peter Song, "John" Liu a/k/a Andy Liu, and Zhimin Chen, Case No. 1:17-cv-00273, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, the lawsuit seeks to recover unpaid minimum wage compensation, unpaid overtime compensation, liquidated damages, prejudgment and post-judgment interest, and attorneys' fees and costs pursuant to the Fair Labor Standards Act. The Defendants seek a review of the Order dated September 28, 2021, which ordered that the Judgment rendered by the Court in favor of Plaintiffs be entered as a final judgment against Defendants in the total amount of $541,424.39. The Clerk of Court was directed to mark the action closed and all pending motions denied as moot. The appellate case is captioned as Weng v. Kung Fu Little Steamed Buns Ramen, Inc., et al., Case No. 21-2600, in the United States Court of Appeals for the Second Circuit, filed on Oct. 15, 2021.[BN] Defendants-Appellants Kung Fu Little Steamed Buns Ramen, Inc., DBA Kung Fu Little Steamed Buns Ramen; Kung Fu Delicacy, Inc., DBA Kung Fu Little Steamed Buns Ramen; Kung Fu Kitchen, Inc., DBA Kung Fu Little Steamed Buns Ramen; and Zhe Song, AKA Peter Song, are represented by: Joshua Horowitz, Esq. HOROWITZ TECH LAW P.C. 734 Franklin Ave Garden City, NY 11530 Telephone: (212) 203-9011 Plaintiffs-Appellees Lianhua Weng, Haihua Zhai, Shimin Yuan, Chengbin Qian, Wen Zhang, on behalf of themselves and others similarly situated, are represented by: Aaron B. Schweitzer, Esq. TROY LAW PLLC 41-25 Kissena Boulevard Flushing, NY 11355 Telephone: (718) 762-1324 LAS VEGAS SANDS: Bid to Dismiss Daniels Family Trust Suit Pending ----------------------------------------------------------------- Las Vegas Sands Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the motion to dismiss the purported class action suit entitled, The Daniels Family 2001 Revocable Trust v. LVSC, et al., is pending. On October 22, 2020, The Daniels Family 2001 Revocable Trust, a putative purchaser of the Company's shares, filed a purported class action complaint in the U.S. District Court against the company (LVSC), Sheldon G. Adelson and Patrick Dumont. The complaint asserts violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and alleges that LVSC made materially false or misleading statements, or failed to disclose material facts, from February 27, 2016 through September 15, 2020, with respect to its operations at the Marina Bay Sands, its compliance with Singapore laws and regulations, and its disclosure controls and procedures. On January 5, 2021, the U.S. District Court entered an order appointing Carl S. Ciaccio and Donald M. DeSalvo as lead plaintiffs ("Lead Plaintiffs"). On March 8, 2021, Lead Plaintiffs filed a purported class action amended complaint against LVSC, Sheldon G. Adelson, Patrick Dumont, and Robert G. Goldstein, alleging similar violations of Sections 10(b) and 20(a) of the Exchange Act over the same time period of February 27, 2016 through September 15, 2020. On March 22, 2021, the U.S. District Court granted Lead Plaintiffs' motion to substitute Dr. Miriam Adelson, in her capacity as the Special Administrator for the estate of Sheldon G. Adelson, for Sheldon G. Adelson as a defendant in this action. On May 7, 2021, the defendants filed a motion to dismiss the amended complaint. Lead Plaintiffs filed an opposition to the motion to dismiss on July 6, 2021, and the defendants filed their reply on August 5, 2021. All briefing on the motion to dismiss is complete and the motion is pending before the U.S. District Court. Las Vegas Sands said, "This action is in a preliminary stage and management has determined that based on proceedings to date, it is currently unable to determine the probability of the outcome of this matter or the range of reasonably possible loss, if any. The Company intends to defend this matter vigorously." Las Vegas Sands Corporation is an American casino and resort company based in Paradise, Nevada, United States. Its resorts feature accommodations, gaming and entertainment, convention and exhibition facilities, restaurants and clubs, as well as an art and science museum in Singapore. The company is based in Las Vegas, Nevada. LIGHTNING EMOTORS: Bronstein Gewirtz Reminds of Dec. 14 Deadline ---------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC notifies investors that a class action lawsuit has been filed against Lightning eMotors, Inc. ("Lightning eMotors" or the "Company") f/k/a GigCapital3, Inc. ("GigCapital3") (NYSE ZEV; ZEV.WS) and certain of its officers, on behalf of shareholders who purchased or otherwise acquired Lightning eMotors securities between May 7, 2021 and August 16, 2021, both dates inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: www.bgandg.com/zev. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. The complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts and failed to disclose to investors that: (1) the Company would record a substantially greater net loss per share in the second quarter of 2021 compared to the second quarter of 2020 and would pull its full year guidance for the remainder of 2021; (2) accordingly, the Company materially overstated its financial position and/or prospects; and (3) as a result, the Company's public statements were materially false and misleading at all relevant times. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: www.bgandg.com/zev or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Nathanson of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss inLightning eMotors you have until December 14, 2021, to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Our primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. Attorney advertising. Prior results do not guarantee similar outcomes. Contact: Bronstein, Gewirtz & Grossman, LLC Peretz Bronstein or Yael Nathanson 212-697-6484 | info@bgandg.com [GN] LIGHTNING EMOTORS: Schall Law Firm Reminds of Dec. 14 Deadline -------------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, reminds investors of a class action lawsuit against Lightning eMotors, Inc. ("Lightning" or "the Company") (NYSE: ZEV) f/k/a GigCapital3, Inc. (NYSE: GIK) for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's securities between May 7, 2021 and August 16, 2021, inclusive (the ''Class Period''), are encouraged to contact the firm before December 14, 2021. We also encourage you to contact Brian Schall of the Schall Law Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at 310-301-3335, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. Lightning suffered a significantly larger loss for the second quarter of 2021 as compared to the same period in the prior year, while also pulling its financial guidance for the full year. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about Lightning, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and rules of ethics. Contacts: The Schall Law Firm Brian Schall, Esq. www.schallfirm.com Office: 310-301-3335 info@schallfirm.com [GN] MASSAGE ENVY: Appeals Court Vacates Approval of $10MM Settlement ---------------------------------------------------------------- Holly Barker, writing for Bloomberg Law, reports that Massage Envy's $10 million voucher settlement to resolve class claims over unilateral membership price increases fell apart on Oct. 17 after the U.S. Court of Appeals for the Ninth Circuit vacated approval of the deal. The lower court miscalculated attorneys' fees, but more critically, it didn't adequately scrutinize the settlement for signs of collusion, the Ninth Circuit said. Under the Ninth Circuit's In re Bluetooth Headset Products Liability Litigation, district courts must thoroughly investigate and address certain red flags before approving class action settlements. Pre-certification settlements demand an especially rigorous review because of the increased risk of collusion by class counsel. [GN] MASSAGE ENVY: Settlement Approval in McKinney-Drobnis Suit Vacated ------------------------------------------------------------------ In the case, BAERBEL McKINNEY-DROBNIS; JOSEPH B. PICCOLA; CAMILLE BERLESE, individually and on behalf of all others similarly situated, Plaintiffs-Appellees v. KURT ORESHACK, Objector-Appellant, v. MASSAGE ENVY FRANCHISING, LLC, Defendant-Appellee, Case No. 20-15539 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit vacated the district court's approval of a class action settlement that the parties reached before class certification. Background The class action at issue in the appeal arose out of a dispute between Massage Envy Franchising, LLC ("MEF"), a membership-based spa-services company, and a putative nationwide class of current and former members. The class complaint alleged that MEF began periodically increasing membership fees in violation of the membership agreement. MEF operates as a franchisor selling spa services to consumers through a system of more than 1,100 Massage Envy locations nationwide. The franchisee locations sell products and provide spa services under the Massage Envy brand name. MEF locations are membership-based. For a monthly fee, members receive one prepaid massage per month and lower prices than non-members pay for additional services. The prepaid services can accrue on the members' accounts. Members enter into "Membership Agreements" with the franchisee location. MEF provides Membership Agreement templates to its franchisees for use with their members. Baerbel McKinney-Drobnis, Joseph Piccola, and Camille Berlese ("Plaintiffs") represent a putative nationwide class of current and former MEF members who paid membership fee increases during the class period. The class members signed Membership Agreements with franchisees in different states (California, Arizona, and Texas). In their amended class complaint, the Plaintiffs alleged that, beginning in 2013, MEF locations began unilaterally increasing membership dues without authorization. Many class members discovered an initial price increase of $0.99 per month, and then in some cases, a second, bigger monthly increase of $10 or more. Based on the unauthorized membership fee increases, the amended complaint alleged breach of contract, intentional interference with contractual relations, and state consumer-protection-law violations. The parties vigorously dispute whether the fee increases violated the Membership Agreements that class members signed. The parties began discovery. During the discovery period, they periodically explored settlement. On Oct. 27, 2017, the parties met to exchange their settlement positions. After one unsuccessful mediation and continued discovery, the parties met for a second mediation in November 2018. At the second mediation -- and importantly, before any motion for class certification was filed -- the parties agreed on the material terms of a settlement. The proposed settlement agreement was executed on March 11, 2019. The settlement class includes current and former members of MEF franchisees who paid membership-fee increases during the class period. In exchange for the release of all claims against MEF, class members can submit claims for "vouchers" for MEF products and services. The voucher that each class member receives corresponds to the fee increase the class member paid. The vouchers expire after eighteen months. The vouchers may be used at any MEF location to purchase retail products, massage sessions, enhancements, and/or facial sessions. MEF offers 251 different items for sale. The vouchers also have some flexibility because they are transferable, may be combined with other promotions and discounts, and can be used in multiple transactions until exhausted. On the other hand, the vouchers are not redeemable for cash and cannot be used to pay monthly membership fees or tips. The settlement provides for a $10 million "floor"; in other words, if class members do not claim enough vouchers to use up the full $10 million fund, the settlement will increase voucher amounts to claimants pro rata until the $10 million floor is reached. MEF also agreed to injunctive relief requiring the franchisees to adopt a template Membership Agreement that mandates a 45-day advance written notice before membership fees can be increased. Under the agreement, each named Plaintiff has the right to request a $10,000 incentive award without opposition. Two additional settlement terms are particularly relevant to this appeal. First, MEF agreed to a "clear-sailing" provision for attorneys' fees, which means that MEF would not object to class counsel's fee request so long as counsel requests no more than $3.3 million. Second, the settlement contains a "reverter" or "kicker" provision, which means that, if the Court awards less than $3.3 million in fees, the excess funds revert to MEF rather than to the class. A direct-notice program reached an estimated 96.9% of the 1.7 million class members. After the claims period closed, a total of 105,693 class members (or about 6.2% of the class) submitted valid voucher requests. At the time of preliminary approval of the settlement, the estimated cost of notice and settlement administration was $450,000. The requested vouchers amounted to under $3 million in value, well below the $10 million floor provided in the settlement. As a result, each claimed voucher's value was adjusted upwards on a pro rata basis in proportion to the fee increase that the class member paid. After the adjustment, the vouchers ranged in value from $36.28 to $180.68. The Attorneys General of Plaintiffs' home states -- Arizona, California, and Texas -- scrutinized the settlement agreement and did not object. The district court granted preliminary approval of the settlement in June 2019. The class counsel sought the maximum $3.3 million award that MEF had agreed not to oppose. In the fee request, the counsel contended that the Class Action Fairness Act ("CAFA"), which governs attorneys' fees in class-action settlements that provide for a recovery of "coupons" to the class members, did not apply because the settlement vouchers were not "coupons" covered by CAFA. Class member and now Objector-Appellant Oreshack timely objected to the settlement, class certification, and attorneys' fee request. Oreshack contended, among other things, that: (1) the settlement was a "coupon" settlement under CAFA, but the settlement did not follow CAFA's procedures (namely, CAFA requires class counsel's fees to be calculated based on the value of vouchers that class members ultimately redeem, rather than the face value of the claimed vouchers; here, $10 million); (2) the settlement unfairly benefits class counsel at the expense of the class because of the economic reality that many vouchers will expire unredeemed; and (3) the three In re Bluetooth Headset Products Liability Litigation, 654 F.3d 935 (9th Cir. 2011), factors were present. Mr. Oreshack contended that, at a minimum, CAFA requires that the district court not award attorneys' fees until the voucher redemption rate is known. Oreshack also requested that the court investigate the previous settlement negotiated between class counsel and MEF in Hahn; specifically, he asked the court to request that Plaintiffs' and MEF's respective counsel provide the redemption rate for the vouchers issued in that settlement. The court approved the proposed settlement. Of the 1.7 million class members, 523 (0.03%) opted out and 19, including Oreshack, objected. The district court held a fairness hearing on Feb. 28, 2020. The court overruled all objections, certified the class for settlement, approved the settlement, and granted most of class counsel's requested fee award. In sum, it found the settlement to be "fair, reasonable, and adequate" under Federal Rule of Civil Procedure 23(e). The court issued an order granting final settlement approval on March 2, 2020, and its final judgment and dismissal order on March 20, 2020. By operation of the settlement's reverter provision, and because the court awarded the class counsel less than the requested $3.3 million, approximately $600,000 in unawarded fees reverted to MEF. Mr. Oreshack timely appealed. Discussion A. The Ninth Circuit first considers whether the district court erred in finding that the vouchers are not "coupons" subject to CAFA's restrictions. Upon de novo review, it holds that the vouchers are coupons. It opines that the relatively narrow range of products offered, combined with the vouchers failing to allow most class members to buy massage services -- MEF's flagship offering -- without spending their own money, suggests that these vouchers should be viewed in law as coupons. Although flexible, the vouchers do ultimately expire, and there is no evidence that a secondary market for Massage Envy vouchers exists. Upon de novo review of the vouchers under the Online DVD framework, the Ninth Circuit holds that they are coupons and, consequently, are subject to CAFA's requirements for coupon settlements. It therefore vacates the district court's approval of the attorneys' fee award and remands for the district court to use the value of the redeemed vouchers in awarding fees, as required by 28 U.S.C. Section 1712(a). B. The Ninth Circuit next addresses Oreshack's contention that, independent of CAFA's applicability to the fee award, the district court erred by approving the settlement as "fair, reasonable, and adequate" under Rule 23(e). As in Roes, 1-2 v. SFBSC Management, LLC, 944 F.3d 1035 (9th Cir. 2019), "the main thrust of Objector's argument on appeal is that the district court abused its discretion in approving a class action settlement that does not provide enough benefit to class members and contains indicia of collusion." Mr. Oreshack makes two independent arguments to support his request to vacate the settlement approval. First, he contends that the district court erred by valuing the vouchers for purposes of attorneys' fees at $10 million. Second, he contends that the court erred in approving a settlement that exhibits preferential treatment to class counsel under Bluetooth. The Ninth Circuit held that the district court in Roes abused its discretion by failing to apply "'an even higher level of scrutiny' for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e)." The Roes settlement agreement included "subtle signs of implicit collusion," including a clear-sailing agreement, a disproportionate cash distribution for attorneys' fees, disproportionate incentive payments to the named plaintiffs, and reversionary clauses that would return unclaimed funds to the defendants. The Ninth Circuit noted that "the district court did not substantively investigate or address" some of the objectors' concerns, and it did not "explain why the vouchers should be valued at its $1 million maximum" even though only a portion of that maximum had been claimed. Importantly, it stated that "regardless of whether the dance fee payment vouchers are officially 'coupons' within the meaning of CAFA, the district court should have recognized that some of the same concerns applicable to coupon settlements also apply here and warranted closer scrutiny of the vouchers as settlement relief." Id. Instead, the court dismissed the voucher objection by asserting that the dance fee payment vouchers provide "a tangible benefit" that was "not the ordinary illusory coupon payment." Because the court failed to "substantively grapple" with whether the Bluetooth warning signs created an unfair settlement, the Ninth Circuit vacated the settlement approval and remanded for "a more searching inquiry." C. Mr. Oreshack contends that the district court erred by failing to apply enhanced scrutiny to a pre-certification settlement. The Ninth Circuit agrees that the court did not apply the requisite scrutiny and thereby abused its discretion in failing to "investigate or adequately address" the economic reality of the settlement relief and the Bluetooth warning signs. Accordingly, because the district court did not conduct the required heightened inquiry, the Ninth Circuit holds that the court abused its discretion in granting approval of the settlement. On remand, the Ninth Circuit does not restrict the scope of the court's inquiry regarding whether the settlement should be approved. It might be that in the end, after adjusting the attorneys' fees using the voucher redemption rate and applying the heightened scrutiny that Bluetooth requires, the court will conclude that the settlement agreement is fair. But because the Ninth Circuit holds the court to a higher procedural standard, the court must "provide the necessary explanations" in making that finding. Conclusion The Ninth Circuit holds that (1) the district court erred in finding that the vouchers are not "coupons" under CAFA, and (2) the district court abused its discretion in failing to apply the requisite heightened scrutiny for pre-certification settlements. Specifically, it concludes that the court did not apply the appropriate enhanced scrutiny because it failed to adequately investigate and address the three warning signs of implicit collusion that it articulated in Bluetooth. Under Rule 23(e), a federal court may approve a class action settlement only if it finds the agreement is "fair, reasonable, and adequate." For the foregoing reasons, the Ninth Circuit vacates and remands the district court's approval of the settlement and its fee award. It instructs the court to use the value of the redeemed vouchers as required by CAFA and to analyze the pre-certification settlement agreement with heightened scrutiny. In so holding, the Ninth Circuit expresses no opinion on the ultimate fairness of the settlement that the parties have negotiated—a conclusion properly within the purview of the district court. A full-text copy of the Court's Oct. 20, 2021 Opinion is available at https://tinyurl.com/j9z4u53k from Leagle.com. Adam E. Schulman -- adam.schulman@hlli.org -- (argued) and Theodore H. Frank -- ted.frank@hlli.org -- Hamilton Lincoln Law Institute, Center for Class Action Fairness, in Washington, D.C., for the Objector-Appellant. Trenton R. Kashima -- trk@classactionlaw.com -- (argued), Sommers Schwartz P.C., in San Diego, California; Jeffery R. Krinsk and John J. Nelson, Finkelstein & Krinsk LLP, in San Diego, California; for the Plaintiffs-Appellees. Theodore J. Boutrous Jr. -- tboutrous@gibsondunn.com -- (argued), Kahn A. Scolnick -- kscolnick@gibsondunn.com -- Martie P. Kutscher, and Daniel R. Adler, Gibson Dunn & Crutcher LLP, in Los Angeles, California; Luanne Sacks -- lsacks@srclaw.com -- Cynthia A. Ricketts -- cricketts@srclaw.com -- Robert B. Bader -- rbader@srclaw.com -- and Mike Scott, Sacks Ricketts & Case LLP, in San Francisco, California; for the Defendant-Appellee. MAXIMUS FEDERAL: Summary Judgment Bid in Bodor FDCPA Suit Denied ---------------------------------------------------------------- In the case, JAIMARIA BODOR, Individually and on behalf of all others similarly situated, Plaintiffs v. MAXIMUS FEDERAL SERVICES, INC., Defendant, Civil No. 5:19-cv-05787-JMG (E.D. Pa.), Judge John M. Gallagher of the U.S. District Court for the Eastern District of Pennsylvania denied the Defendant's Motion for Summary Judgment. Background Plaintiff Jaimaria Bodor alleges her 2018 tax return was improperly seized by the U.S. government due to a lapse by Defendant Maximus, a purported collector of student loan debt, in violation of the Fair Debt Collection Practices Act ("FDCPA"). The Plaintiff asserts a claim individually and on behalf of a class of similarly situated persons against the Defendant for engaging in abusive, deceptive, and unfair debt collection practices prohibited by the FDCPA, 15 U.S.C. Section 1692. The Department of Education, Office of Federal Student Aid ("FSA"), administers student financial aid programs authorized under Title IV of the Higher Education Act of 1965. In 2013, FSA entered into a contract with the Defendant, a government services company, to operate, maintain, and continue development of FSA's Debt Management and Collection System, ("DMCS"). DMCS is used to service FSA's portfolio of defaulted student loans. Congress requires federal agencies to refer delinquent nontax debt, such as defaulted student loan debt, to the U.S. Department of the Treasury for collection, including through administrative offset, which means withholding funds payable by the United States to satisfy a debt. Pursuant to this authority, Treasury operates a centralized Treasury Offset Program ("TOP"), which offsets payments, such as tax refunds, that are intended to be made to a delinquent student loan borrower and applies those payments to any delinquent debts held by FSA. In 2012, the Plaintiff took out two federal loans in order to attend a school owned by the now-defunct for-profit education company, Corinthian Colleges. In 2014, after allegedly receiving an inadequate education, Plaintiff defaulted on her loans. Under the Higher Education Act, federal loan borrowers, like the Plaintiff, are eligible for loan discharge if the college or university for which the loans were obtained misled them. On March 13, 2019, the Plaintiff filed a Borrower Defense to Repayment Application ("BD") to stop collections on her loans, with the specific goal of preventing the forced collection of her 2018 tax refund. Once a borrower files a BD application, their loan is stayed from collection. The Defendant is responsible for manually recognizing and applying BD tags to a borrower's account to prevent the DMCS system from referring an account to a private collection agency ("PCAs") or to Treasury for a TOP offset. On April 25, 2019, the Plaintiff's 2018 tax refund of $79 was improperly withheld because the Defendant delayed in applying a BD tag to her account. The withholding of the Plaintiff's tax refund resulted in the lawsuit. Before the Court is the Defendant's Motion for Summary Judgment Discussion A. Standing The Defendant first argues that the Plaintiff lacks standing to bring forth her claim. To establish standing under Article III of the Constitution, a plaintiff must (1) demonstrate an injury in fact, which is a harm that is (a) both concrete and actual or imminent, and (b) not conjectural or hypothetical; (2) show causation, which is a fairly traceable connection between the alleged injury in fact and the alleged conduct of a defendant; and (3) demonstrate redressability, which is a substantial likelihood that the requested relief will remedy the alleged injury in fact. Named plaintiffs, such as the Plaintiff, who represent a class must allege and show that they personally have been injured. Judge Gallagher opines that the Plaintiff's claims to economic loss, even temporary, is a concrete and actual injury sufficient to establish standing. The Defendant next claims that Plaintiff cannot show that her injury was caused by its conduct. Judge Gallagher finds sufficient causation exists in the record. The Defendant says its role was limited to the application of an electronic tag to the Plaintiff's account on April 29, 2019, four days after Treasury garnished her 2018 tax refund. However, without the Defendant's delay in applying this tag, the Plaintiff's tax refund would not have been garnished. Said otherwise, but for the Defendant's failure to timely tag the Plaintiff's account, the Plaintiff's tax refund would not have been seized. The Defendant also argues that it was a victim of external factors beyond its control, meaning that any injury to the Plaintiff is not "fairly traceable" to the Defendant's conduct. The Defendant's emphasis on external intervening forces is not persuasive, Judge Gallagher holds. The traceability requirement is met even where intervening events sever the chain of proximate causation between the conduct and the injury at issue. "But for" is a lesser standard than proximate cause and "but for" causation is all that is needed for standing purposes. The Defendant's conduct has met that standard and satisfied the causation requirement necessary to establish standing. B. FDCPA Having rejected the Defendant's standing argument, Judge Gallagher now turns to the substance of the Plaintiff's FDCPA claims. The Defendant first moves for summary judgment on the grounds that it did not engage in "debt collection activity," a threshold requirement for FDCPA claims. It then argues that it did not violate Section 1692(e) because it never communicated with the Plaintiff, and similarly argues that it did not engage in any unfair or unconscionable debt collection practices in violation of Section 1692(f). The Defendant further contends that, even if it did violate the FDCPA, it is still entitled to summary judgment because it meets the requirements for a bona fide error defense. Finally, it argues that the Plaintiff's claims are barred by the immunity afforded to government contractors. Judge Gallagher finds that (i) he is satisfied that sufficient evidence exists for a reasonable jury to find that Defendant engaged in collection activity; (ii) the record shows that the Defendant operates the call center and communicates with borrowers in writing, but the Defendant's employees do not identify themselves and borrowers have no way of knowing they are communicating with the Defendant's employees; (iii) whether external forces beyond the Defendant's control or failures in their own policies and procedures caused and justified the mistaken seizure of the Plaintiff's tax refund are genuinely disputed material facts appropriate for resolution by the finder of fact; (iv) whether the Defendant's actions were intentional, whether external factors caused the delay, and whether Defendant had reasonably designed policies and procedures in place despite their "blind spot" are material disputes to be determined by the jury; and (v) reasonable disputes of fact exist which foreclose a finding that the Defendant's claim of governmental immunity must prevail as a matter of law. Conclusion For these reasons, Judge Gallagher denied the Defendant's motion for summary judgment. An order to this effect will follow. A full-text copy of the Court's Oct. 22, 2021 Memorandum Opinion is available at https://tinyurl.com/44hey79d from Leagle.com. MYLAN INC: Rochester May Amend Complaint Over Epinephrine Monopoly ------------------------------------------------------------------ In the case, In re: EpiPen Direct Purchaser Litigation (This Document Applies to All Actions), Case No. 20-cv-00827 (ECT/JFD) (D. Minn.), Magistrate Judge John F. Docherty of the U.S. District Court for the District of Minnesota granted Plaintiffs Rochester Drug Co-Operative, Inc., and Dakota Drug, Inc.'s Motion for Leave to File a First Amended Consolidated Class Action Complaint. Background An "EpiPen" is a medical device carried by some persons with severe allergies who are at risk of a sudden attack of anaphylaxis, a life-threatening, severe, allergic reaction. In an emergency, a person suffering an anaphylactic attack can use an EpiPen to quickly inject themselves with a life-saving dose of epinephrine. Defendants Mylan Inc. and Mylan Specialty L.P. (collectively "Mylan") sell the EpiPen, which has higher sales volume than any other Epinephrine Auto-Injector (the class of medical device to which the EpiPen belongs). In the action, Co-Lead Plaintiffs Rochester Drug Co-Operative, Inc., and Dakota Drug, Inc., allege on behalf of a proposed class of pharmaceutical wholesalers that Mylan obtained a dominant position within the market for Epinephrine Auto-Injectors, not by making a better product and selling it at a better price, but by paying bribes and kickbacks to pharmacy benefit managers ("PBM"), companies that, among other things, manage the prescription benefits of insurance companies and managed health care plans. Mylan is a Defendant in the case, together with three groups of pharmacy benefit managers: CaremarkPCS Health LLC, Caremark LLC, and Caremark Rx LLC (collectively, "CVS Caremark"); Express Scripts Inc. and Medco Health Solutions Inc. (collectively, "Express Scripts"); and OptumRx Inc. The Plaintiffs allege that because PBMs have power to confer market share on favored products, and because Mylan bribed the PBMs to favor EpiPen, Mylan was able to raise the price of EpiPen yet keep a monopoly position in the Epinephrine Auto-Injector market. They allege that the Defendants' actions violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Section 1962(c), and that Mylan's actions also violate Section Two of the Sherman Antitrust Act, 15 U.S.C. Section 2. The Plaintiffs now bring a Motion for Leave to File a First Amended Consolidated Class Action Complaint requesting permission to make four key amendments to: (1) plead additional facts that will rejoin five of the previously dismissed parent company Defendants, including (a) CVS Health Corporation; (b) Express Scripts Holding Company; (c) United Health Group Incorporated; (d) United Healthcare Services Inc.; and (e) Optum Inc.; (2) join two additional Defendants that are affiliates of the PBM Defendants, including (a) CVS Caremark Part D Services, L.L.C.; and (b) UnitedHealthcare, Inc.; (3) plead additional facts that are connected to elements of previously pleaded state bribery law violations, as well as add new state bribery law violation claims; and (4) add a new claim for relief under Section One of the Sherman Antitrust Act, 15 U.S.C. Section 1. The Defendants oppose Plaintiffs' motion and ask the Court to deny the motion almost entirely, granting only the Plaintiffs' request under (2)(a) above to join one new Defendant, CVS Caremark Part D Services, L.L.C. Discussion A. Undue Delay The Defendants' first argument in opposing the motion is that the Plaintiffs were generally dilatory when they brought the motion at the last permissible moment. They also specifically allege that the "Plaintiffs unduly delayed alleging predicate acts and an antitrust claim that were known and available to them at the very outset of the litigation—nearly eighteen months ago." In sum, Judge Docherty holds that if there is delay, it appears to be mere rather than undue, citing Mercantile Tr. Co. Nat'l Ass'n, 542 F.2d at 1012 ("Mere delay is not a reason in and of itself to deny leave to amend."). And even if the Court had found undue delay, "delay alone is insufficient justification for denying a motion to amend; prejudice to the nonmovant must also be shown." Thus, even though the Defendants argue that, should the Court grant the motion, they will have to redo past efforts and embark on new ones. Judge Docherty finds no prejudice under the cases cited. Therefore, because he finds neither unfair prejudice nor undue delay, he finds the Plaintiffs' Motion to Amend satisfies the liberal standard of Rule 15 of the Federal Rules of Civil Procedure. B. The Standard for Rejoining Defendants Previously Dismissed with Prejudice The Plaintiffs' proposed amended complaint rejoins five Defendants previously dismissed with prejudice by the district court, namely CVS Health Corporation, Express Scripts Holding Company, United Health Group Incorporated, United Healthcare Services Inc., and Optum Inc. They originally alleged that these corporate parents made public statements about negotiating prices and rebates that amounted to "mail and wire fraud predicate acts." The district court dismissed these Defendants with prejudice after finding the Plaintiffs failed to allege facts that individual personnel or management within these corporate parents of the PBM Defendants participated in the alleged kickback and bribery scheme in violation of RICO. The Plaintiffs now allege facts that they say show these five previously dismissed the Defendants' personnel and management participated in the alleged RICO scheme. In opposition, the Defendants argue that when the Plaintiffs seek to amend an order to rejoin parties who were previously dismissed with prejudice, as is the case with the PBMs' corporate parents, the Plaintiffs must meet a higher standard than Rule 15's. The Defendants argue that because the Plaintiffs did not meet this higher standard, the motion to amend should be denied as to the corporate defendants. This "more restrictive standard" is one that Defendants infer from Streambend Properties II, LLC v. Ivy Tower Minneapolis, LLC, 781 F.3d 1003, 1009-10 (8th Cir. 2015), a case in which the Eighth Circuit affirmed the district court's denial of a Plaintiff's motion to rejoin Defendants who had previously been dismissed with prejudice. Judge Docherty holds that that the dismissal of the corporate parent Defendants was "with prejudice" does not change the result, again because the dismissal was of part of a complaint, not the entirety of an action. He says, while there are instances where "with prejudice" functions as final within a case proceeding at the prejudgment phase of litigation, this is not such an instance. Where a plaintiff submits the same exact matter for reconsideration within the same case—without making any changes -- then "with prejudice" has finality. The Plaintiffs do not submit the same supporting facts against the same previously dismissed Defendants. Therefore, the previous dismissal of these Defendants is not so final that the Court cannot allow the Plaintiffs to rejoin them "when justice so requires." C. The Futility of Rejoining Defendants Previously Dismissed with Prejudice Finally, the Defendants have not raised a futility argument. Nevertheless, they contend that the Plaintiffs' "few sentences of conclusory allegations in their amended complaint fail to remedy the shortcomings identified by the Court nearly eight months ago." In sum, Judge Docherty holds that Rule 15's liberal standard applies to the Plaintiffs' motion to amend at this prejudgment phase of litigation, and that, in the absence of undue delay or resulting prejudice to the Defendants, the Plaintiffs' motion will be granted. Disposition Plaintiffs Rochester Drug Co-Operative, Inc., and Dakota Drug, Inc.'s Motion for Leave to File a First Amended Consolidated Class Action Complaint is granted. The Plaintiffs will promptly file their First Amended Consolidated Class Action Complaint. A full-text copy of the Court's Oct. 20, 2021 Order is available at https://tinyurl.com/yxzfhpun from Leagle.com. Noah Silverman -- nsilverman@garwingerstein.com -- Bruce E. Gerstein -- bgerstein@garwingerstein.com -- Jonathan M. Gerstein, Elena K. Chan, and Joseph Opper, Garwin Gerstein & Fisher LLP, New York, NY; David F. Sorensen -- dsorensen@bm.net -- Caitlin Coslett , Andrew C. Curley, Aurelia Chaudhury, E. Michelle Drake, John Parron, and Nicholas Urban, Berger & Montague PC, Philadelphia, PA; David S. Golub -- dgolub@sgtlaw.com -- and Steven Bloch -- sbloch@sgtlaw.com -- Silver Golub & Teitell LLP, Stamford, CT; Susan C. Segura -- ssegura@ssrllp.com -- and David C. Raphael, Jr. -- draphael@ssrllp.com -- Smith Segura & Raphael, LLP, Alexandria, LA; Russell Chorush, Eric Enger, and Christopher M. First, Heim Payne & Chorush LLP, Houston, TX; Joseph T. Lukens -- jlukens@faruqilaw.com -- and Peter Kohn -- pkohn@faruqilaw.com -- Faruqi & Faruqi, LLP, Philadelphia, PA; and Stuart Des Roches -- stuart@odrlaw.com -- Andrew Kelly, Amanda Leah Hass, Chris Letter, Dan Chiorean, Christopher Stow-Serge, and Thomas Maas, Odom & Des Roches, LLC, in New Orleans, Louisiana, for Plaintiffs Rochester Drug Co-Operative, Inc., and Dakota Drug, Inc. Adam K. Levin, Carolyn A. DeLone, Christine A. Sifferman, Justin Bernick, Kathryn Marshall Ali, Charles A. Loughlin, Elizabeth Jose, and David M. Foster, Hogan Lovells US LLP, Washington, DC; Peter H. Walsh, Hogan Lovells US LLP, in Minneapolis, Minnesota; and Katherine Booth Wellington, Hogan Lovells US LLP, in Boston, Massachusetts, for Defendants Mylan Inc. and Mylan Specialty L.P. John W. Ursu and Isaac B. Hall, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN; and Craig D. Singer, Daniel M. Dockery, and Enu A. Mainigi, Williams & Connolly, LLP, in Washington, D.C., for Defendants CaremarkPCS Health LLC, Caremark LLC, and Caremark Rx LLC. Donald G. Heeman, Jessica J. Nelson, and Randi J. Winter, Spencer Fane LLP, Minneapolis, MN; and Jonathan Gordon Cooper, Carolyn L. Hart, Michael John Lyle, and Eric C. Lyttle, Quinn Emanuel Urquhart & Sullivan LLP, in Washington, D.C., for Defendants Express Scripts Inc., and Medco Health Solutions, Inc. Kadee Jo Anderson and Andrew Glasnovich, Stinson LLP, Minneapolis, MN; Elizabeth Broadway Brown, D. Andrew Hatchett, Jordan Elise Edwards, and Bradley Harder, Alston & Bird LLP, in Atlanta, Georgia; and Brian D. Boone, Alston & Bird LLP, in Charlotte, North Carolina, for Defendant OptumRx Inc. NANO-X IMAGING: Levi & Korsinsky Reminds of December 6 Deadline --------------------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of Nano-X Imaging Ltd. ("Nano-X") (NASDAQ: NNOX) between June 17, 2021 and August 18, 2021. You are hereby notified that a securities class action lawsuit has been commenced in the United States District Court for the Eastern District of New York. To get more information go to: https://www.zlk.com/pslra-1/nano-x-imaging-ltd-loss-submission-form?prid=20577&wire=5 or contact Joseph E. Levi, Esq. either via email at jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is no cost or obligation to you. Nano-X Imaging Ltd. NEWS - NNOX NEWS CASE DETAILS: According to the filed complaint: (i) Nano-X's 510(k) application for the Nanox.ARC was deficient; (ii) accordingly, it was unlikely that the Food and Drug Administration would approve the 510(k) application for the Nanox.ARC in its current form; (iii) as a result, NanoX had overstated the Nanox.ARC's regulatory and commercial prospects; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. WHAT THIS MEANS TO SHAREHOLDERS: If you suffered a loss in Nano-X, you have until December 6, 2021 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. NO COST TO YOU: If you purchased Nano-X securities between June 17, 2021 and August 18, 2021, you may be entitled to compensation without payment of any out-of-pocket costs or fees. PROTECT YOUR FINANCIAL INTERESTS: Complete this brief submission form https://www.zlk.com/pslra-1/nano-x-imaging-ltd-loss-submission-form?prid=20577&wire=5 or call 212-363-7500 to discuss the case with Joseph E. Levi, Esq. WHY LEVI & KORSINSKY: Levi & Korsinsky have a proven track record of winning cases worth hundreds of millions of dollars for shareholders over a 20-year period. We represent and fight for shareholders who have been wronged by corporations. Levi & Korsinsky is a nationally recognized firm with offices in New York, California, Connecticut, and Washington, D.C. The Firm's Founding Partners, Joseph Levi and Eduard Korsinsky, have been representing shareholders and institutional clients for almost 20 years and have achieved remarkable results for clients in the U.S. and internationally. The firm, with more than 80 employees, is committed to fostering, cultivating and preserving a culture of diversity, equity and inclusion for employees and those that we represent. Our attorneys have extensive expertise representing investors in securities litigation with a track record of recovering hundreds of millions of dollars in cases. Levi & Korsinsky was ranked in Institutional Shareholder Services' ("ISS") SCAS Top 50 Report for 7 years in a row as a top securities litigation firm in the United States. The SCAS Top 50 Report identifies the top plaintiffs' securities law firms in the country, and year after year, ISS has recognized Levi & Korsinsky as a leading firm in the area of securities class action litigation. CONTACT: Levi & Korsinsky, LLP Joseph E. Levi, Esq. Ed Korsinsky, Esq. 55 Broadway, 10th Floor New York, NY 10006 jlevi@levikorsinsky.com Tel: (212) 363-7500 Fax: (212) 363-7171 www.zlk.com [GN] NEW YORK: Appeals Ruling in Diamond NYCHA Tenants' Suit ------------------------------------------------------- Defendants New York City Housing Authority filed an amended notice of appeal from a court ruling entered in the lawsuit styled A'SEELAH DIAMOND and RUTH BRITT, on behalf of themselves and a class of those similarly situated v. NEW YORK CITY HOUSING AUTHORITY and OYESHOLA OLATOYE, in her official capacity as Chairperson and Chief Executive Officer of the New York City Housing Authority, Case No. 153312/2018, in the Supreme Court of the State of New York County of New York. The lawsuit seeks full rent abatement for heat and/or hot water outages, reflecting the diminution in the value of Plaintiffs' homes in an amount to be determined at trial, along with consequential and punitive damages. According to the complaint, the Defendants have failed to maintain Plaintiffs' residences in accordance with the uses reasonably intended by the Plaintiffs. The Defendants had notice of heat and/or hot water outages, but either failed to correct them, or allowed them to remain uncorrected for days or even weeks at a time. By reason of their failure to make timely repairs and maintain heat and/or hot water services, the Defendants have breached the warranty of habitability under New York Real Property. As a result of this breach, Defendants have caused the value of the Plaintiffs' apartments to be diminished. As previously reported in the Class Action Reporter, the Appellate Division of the Supreme Court of New York, First Department, reversed the judgment of Judge Carol R. Edmead of the New York County Supreme Court, entered on Feb. 28, 2019, dismissing the cause of action for breach of the warranty of habitability, without prejudice, and dismissing the cause of action for injunctive relief. The Appellate Court unanimously reversed without costs and vacated the February 2019 Judgment. The Appellate Court reinstated the cause of action for breach of the warranty of habitability, and granted the Plaintiffs' motion for certification of the "damages class." The appeal from order, entered Feb. 7, 2019, was unanimously dismissed, without costs, as subsumed in the appeal from the judgment. The Defendants now seek a review of the Court's Order dated August 20, 2021, e-filed on August 31, 2021 and entered in the office of the New York County Clerk on October 7, 2021, which, inter alia, directed Defendants to produce to the Plaintiffs the names and contact information of all New York City Housing Authority tenants of record during the 2017-2018 heating season. The appellate case is captioned as A'SEELAH DIAMOND and RUTH BRITT, on behalf of themselves and a class of those similarly situated v. NEW YORK CITY HOUSING AUTHORITY and OYESHOLA OLATOYE, in her official capacity as Chairperson and Chief Executive Officer of the New York City Housing Authority, Case No. 2021-03779, in the Supreme Court of the State of New York, Appellate Division, First Judicial Department.[BN] Defendants-Appellants NEW YORK CITY HOUSING AUTHORITY and OYESHOLA OLATOYE, in her official capacity as Chairperson and Chief Executive Officer of the New York City Housing Authority, are represented by: Miriam Skolnik, Esq. HERZFELD & RUBIN, P.C. 125 Broad Street New York, NY 10004 Telephone: (212) 471-850 E-mail: mskolnik@herzfeldrubin.com Plaintiffs-Appellees A'SEELAH DIAMOND and RUTH BRITT, on behalf of themselves and a class of those similarly situated, are represented by: Mary Eaton, Esq. Adam Rosenfeld, Esq. FRESHFIELDS BRUCKHAUS DERINGER US LLP 601 Lexington Avenue 31st Floor New York, NY 10022 Telephone: (212) 277-4000 E-mail: mary.eaton@freshfields.com adam.rosenield@freshfields.com - and - Shaimaa M. Hussein, Esq. WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019-6099 Telephone: (212) 728-8000 E-mail: SHussein@willkie.com - and - Lucy Newman, Esq. THE LEGAL AID SOCIETY 199 Water Street New York, NY 10038 Telephone: (212) 577-3300 E-mail: LCNewman@legal-aid.org NIBCO INC: Class Settlement in Matson Suit Wins Final Approval -------------------------------------------------------------- In the case, DAVID MATSON, BARBARA MATSON, YOLANDA GARRET, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs v. NIBCO INC., Defendant, Case No. 5-19-CV-00717-RBF (W.D. Tex.), Magistrate Judge Richard B. Farrer of the U.S. District Court for the Western District of Texas, San Antonio Division, granted: (1) the Motion for Settlement Approval filed by Plaintiffs Yolanda Garret, Barbara Matson, and David Matson; and (2) the Cross-Motion for Final Approval of Class Action Settlement filed by Defendant NIBCO. Background On June 19, 2019, Plaintiffs David and Barbara Matson initiated the action on behalf of themselves and others similarly situated, alleging that Defendant NIBCO manufactured or distributed defective cross-linked polyethylene tubing ("PEX tubing") that caused or will cause them and the putative class members to suffer water damage to their residences. Their live Complaint raises claims for (1) breach of express warranty pursuant to Section 2-313 of the Uniform Commercial Code, (2) breach of implied warranty of merchantability pursuant to Section 2-314 of the Uniform Commercial Code, and (3) Strict Liability Design Defect, Manufacturing Defect, and Failure to Warn. NIBCO's PEX tubing has been the subject of extensive litigation since at least 2013, beginning with the class action styled Cole v. NIBCO, No. 13-cv-7871-FLW-TJB (D.N.J. filed Dec. 27, 2013), which resulted in a final court-approved settlement on April 11, 2019. The Plaintiffs and other Alabama and Texas homeowners, however, ultimately were excluded from the Cole class, prompting the Plaintiffs to pursue their claims separately. The Plaintiffs did so first by filing an individual petition in state court against builder DR Horton and later adding NIBCO as a Defendant. Ultimately, after engaging discovery with respect to their individual claims, the Plaintiffs chose to seek relief on a class-wide basis and filed the action, while simultaneously nonsuiting their state court action. NIBCO, for its part, denies that it is liable to the Plaintiffs and the Class, and instead asserts that any failures related to the PEX tubing resulted from the actions of others, including but not limited to installation errors. To that end, NIBCO moved to dismiss the Plaintiffs' claims under Rule 12(b)(6), raising various defenses including that (1) the Plaintiffs failed to plausibly plead an express-warranty claim; (2) the Plaintiffs' implied-warranty claim was time barred; and (3) the Plaintiffs' strict-liability claims were barred by the statute of limitations and the economic-loss doctrine. On Dec. 22, 2020 -- a year and a half after the Plaintiffs first instituted the action and while NIBCO's motion to dismiss was pending -- the Plaintiffs advised the Court that they successfully resolved their claims with NIBCO. The Court granted the Plaintiffs' Motion for Preliminary Approval on Feb. 23, 2021. In that Order, the Court (1) provisionally certified a settlement class, (2) preliminarily approved the terms of the settlement, (3) directed notice be transmitted to the class members in the form (as amended) proposed by the Matson Plaintiffs, (4) appointed class counsel to represent the class members, (5) directed the manner and timetable for the filing of requests for exclusions, objections, and any evidentiary support, and (6) scheduled a final approval hearing for June 15, 2021. The Plaintiffs transmitted notice to the class via its settlement administrator on March 25, 2021. But matters didn't proceed as planned. Before Court-approved notice could issue, attorney George Fleming of the law firm Fleming, Nolen & Jez, LLP -- who represents objector Garcia and plaintiffs in a later-filed, competing putative class action styled Williams v. NIBCO, No. 5-20-cv-48-JKP-RBF (W.D. Tex. filed Jan. 14, 2020) -- sent two inherently misleading, inherently coercive, and factually inaccurate letters to the putative class members encouraging them to opt-out. These letters left the Court no choice but to (1) restore to the class the class members whose opt-outs were submitted directly by Mr. Fleming and his law firm or using the firm's form; (2) order that a curative notice be sent to them; (3) re-open the opt-out period as to the affected class members; and (4) re-set the final fairness hearing for Sept. 9, 2021. To date, only 30 class members out of more than 8,000 have chosen to opt-out of the settlement class. On May 10, 2021, class member Garcia -- who claims to have suffered several leaks from NIBCO's PEX tubing -- filed objections to the Settlement. According to Garcia, the Settlement shouldn't be adopted because: (1) the Plaintiffs are inadequate representatives for the portion of the settlement class whose homes have yet to experience leaks; and (2) the settlement fund is "grossly inadequate." Garcia included various items of evidence to support these objections. On Aug. 20, 2021, Plaintiffs and NIBCO formally moved for final settlement approval. In arguing in favor of final approval, the parties contend that Garcia's objections lack merit and are also procedurally improper because: (1) Garcia conditions his objection on the premise that he also be permitted to opt-out following final approval and Rule 23(e) doesn't allow for contingent objections or contingent opt-outs; and (2) Garcia lacks standing to lodge his first objection because he has suffered leaks from NIBCO's PEX tubing. See id. On Sept. 7, 2021, two days before the scheduled final fairness hearing, Garcia filed -- without leave of Court and in contravention of the timetable set forth in the Preliminary Approval Order -- a list of exhibits and witnesses he intended to call for the September 9 hearing. The next day, NIBCO objected to the Court's consideration of 24 documents that Garcia didn't include with his May 10 objections and also to the testimony of one witness Garcia had never before disclosed. On Sept. 9, 2021, the Court held a final fairness hearing at which the parties presented thoughtful arguments and evidence in support of the Settlement. It also provided Garcia an opportunity to lodge his objections at the hearing and present his timely filed evidence. The Court, however, sustained NIBCO's objections to Garcia's untimely evidence but allowed Garcia to proceed by way of an offer of proof. At the conclusion of the hearing, the Court took the matter of final approval and attorneys' fees under advisement. Analysis Judge Farrer finds that Plaintiffs have met their burden with respect to final certification of the class under Rule 23(a) and (b)(3) and, specifically, that Plaintiffs and Class Counsel adequately represent the interests of the class. He also finds that the dissemination of the notice was the best notice practicable in accordance with Rule 23(c)(2)(B) and that it met the requirements of Due Process. Finally, the Class Settlement is fair, adequate, and reasonable, and therefore is approved in full. Thus, pursuant to Fed. R. Civ. P. 23(e), Judge Farrer finally approves in all respects the Settlement. Accordingly, the Settlement will be consummated in accordance with its terms and provisions and as further discussed in the Final Approval Order. The Plaintiffs seek an award of $20,000 split evenly between Plaintiffs David and Barbara Matson and Yolanda Garret (i.e., $10,000 for the Matsons and $10,000 for Ms. Garret). Judge Farrer finds that this award is appropriate under the circumstances of the case and adequately will compensate the Plaintiffs for the service they provided in this action and the burdens they shouldered. Judge Farrer notes that the Class Counsel also seek $2.33 million in attorneys' fees—to be paid separately by NIBCO -- for their efforts in the litigation. He finds that fees are appropriate, particularly in light of the Class Counsel's diligent efforts and the result obtained. Nevertheless, he "must scrutinize the agreed-to fees" and not "merely ratify a pre-arranged compact." He will therefore address the reasonableness of Class Counsel's fee request by separate order. Conclusion Having finally approved the parties' Settlement, Judge Farrer dismisses the case with prejudice on the merits and without costs to any Party or Person, except as otherwise provided herein or in the Settlement Agreement or by separate order. A separate final judgment will be issued. Judge Farrer finds and confirms that the Settlement Escrow Account is a "qualified settlement fund" as defined in Section 1.468B-1 through 1.468B-5 of the Treasury Regulations. The Court will retain continuing jurisdiction over the Settlement Escrow Account, pursuant to Section 1.468B-1(c)(1) of the Treasury Regulations. Judge Farrer orders that, upon the Effective Date, the Settlement Agreement will be the exclusive remedy for any and all Released Claims. Ross Hart, Esquire, of the Arbitration Mediation Conciliation Center is appointed as the Special Master; and Todd J. Menna of Element Materials Technology is appointed as the Independent Engineering Consultant. The Court has jurisdiction to enter the Final Approval Order, the forthcoming order approving attorneys' fees, and the Final Judgment. Without in any way affecting the finality of the Final Approval Order or the Final Judgment, the Court expressly retains exclusive and continuing jurisdiction over the Settlement. The Parties are directed to implement and consummate the Settlement according to the terms and provisions of the Settlement Agreement. Without further order of the Court, the Parties may agree to reasonably necessary extensions of time to carry out any of the provisions of the Settlement Agreement. Likewise, the Parties may, without further order of the Court or notice to the Settlement Class, agree to and adopt such amendments to the Settlement Agreement (including exhibits) as are consistent in material respects with the Final Approval Order and the Final Judgment and that do not limit the rights of the Settlement Class Members under the Settlement Agreement. In the event that the Effective Date does not occur, certification of the Settlement Class will be automatically vacated and the Final Approval Order and Final Judgment, and all other orders entered and releases delivered in connection herewith, will be vacated and will become null and void. A full-text copy of the Court's Oct. 20, 2021 Final Settlement Approval Order is available at https://tinyurl.com/ykrbj8ak from Leagle.com. OLIN CORP: Suits Against Unit Over Sale of Caustic Soda Underway ---------------------------------------------------------------- Olin Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that Olin, K.A. Steel Chemicals continues to defend several class action suits related to the sale of caustic soda. Olin, K.A. Steel Chemicals (a wholly owned subsidiary of Olin) and other caustic soda producers were named as defendants in six purported class action civil lawsuits filed March 22, 25 and 26, 2019 and April 12, 2019 in the U.S. District Court for the Western District of New York on behalf of the respective named plaintiffs and a putative class comprised of all persons and entities who purchased caustic soda in the U.S. directly from one or more of the defendants, their parents, predecessors, subsidiaries or affiliates at any time on or after October 1, 2015. Olin, K.A. Steel Chemicals and other caustic soda producers were also named as defendants in two purported class action civil lawsuits filed July 25 and 29, 2019 in the U.S. District Court for the Western District of New York on behalf of the respective named plaintiffs and a putative class comprised of all persons and entities who purchased caustic soda in the U.S. indirectly from distributors at any time on or after October 1, 2015. The other current defendants in the lawsuits are Occidental Chemical Corporation d/b/a OxyChem, Westlake Chemical Corporation, Shin-Etsu Chemical Co., Ltd., and Formosa Plastics Corporation, U.S.A. The lawsuits allege the defendants conspired to fix, raise, maintain and stabilize the price of caustic soda, restrict domestic (U.S.) supply of caustic soda and allocate caustic soda customers. Plaintiffs seek an unspecified amount of damages and injunctive relief. No further updates were provided in the Company's SEC report. Olin Corporation, incorporated on August 13, 1892, is a manufacturer and distributor of chemical products, and ammunition. The Company operates through three segments: Chlor Alkali Products and Vinyls, Epoxy and Winchester. The company is based in Clayton. OLIN CORP: Unit Defends Suits Over Sale of Caustic Soda in Canada ----------------------------------------------------------------- Olin Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that Olin, K.A. Steel Chemicals continues to defend several class action suits related to the sale of caustic soda in Canada. Olin, K.A. Steel Chemical, Olin Canada ULC, 3229897 Nova Scotia Co. (wholly owned subsidiaries of Olin) and other alleged caustic soda producers were named as defendants in a proposed class action civil lawsuit filed on October 7, 2020 in the Quebec Superior Court (Province of Quebec) on behalf of the respective named plaintiff and a putative class comprised of all Canadian persons and entities who, between October 1, 2015 and the date of the eventual class action certification, directly or indirectly purchased caustic soda or products containing caustic soda, produced by one or more of the defendants. Olin, K.A. Steel Chemical, Olin Canada ULC, 3229897 Nova Scotia Co. and other alleged caustic soda producers were also named as defendants in a proposed class action civil lawsuit filed November 13, 2020 in the Federal Court of Canada on behalf of the respective named plaintiff and a putative class comprised of all legal persons in Canada who, at any time on or after October 1, 2015 to the present, directly or indirectly purchased caustic soda. The other defendants named in the two Canadian lawsuits are Occidental Petroleum Corporation, Occidental Chemical Corporation, Oxy Canada Sales, Inc., Westlake Chemical Corporation, Axiall Canada, Inc., Shin-Etsu Chemical Co., Ltd., Shintech Incorporated, Formosa Plastics Corporation, and Formosa Plastics Corporation, U.S.A. The lawsuits allege the defendants conspired to fix, raise, maintain control, and stabilize the price of caustic soda, divide and allocate markets, sales, customers and territories, fix, maintain, control, prevent, restrict, lessen or eliminate production and supply of caustic soda, and agree to idle capacity of production and/or refrain from increasing their production capacity. Plaintiffs seek an unspecified amount of damages, including punitive damages. No further updates were provided in the Company's SEC report. Olin Corporation, incorporated on August 13, 1892, is a manufacturer and distributor of chemical products, and ammunition. The Company operates through three segments: Chlor Alkali Products and Vinyls, Epoxy and Winchester. The company is based in Clayton. OWLET INC: Glancy Prongay Investigates Securities Claims -------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM"), a national investor rights law firm, continues its investigation on behalf of Owlet, Inc. ("Owlet" or the "Company") (NYSE: OWLT) investors concerning the Company and its officers' possible violations of the federal securities laws. If you suffered a loss on your Owlet investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at https://www.glancylaw.com/cases/owlet-inc/.You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com to learn more about your rights. On October 4, 2021, Owlet revealed that it had received a warning letter from the U.S. Food and Drug Administration ("FDA"), which stated that "the Company's marketing of its Owlet Smart Sock product . . . renders [it] a medical device requiring premarket clearance or approval from FDA." Owlet has not obtained such clearance or approval. Moreover, the FDA "requests the Company cease commercial distribution of the Smart Sock for uses in measuring blood oxygen saturation and pulse rate where such metrics are intended to identify or diagnose desaturation and bradycardia using an alarm functionality to notify users that measurements are outside of preset values." On this news, the Company's stock price fell $1.29 per share, or 23%, to close at $4.19 per share on October 4, 2021, thereby injuring investors. Whistleblower Notice: Persons with non-public information regarding Owlet should consider their options to aid the investigation or take advantage of the SEC Whistleblower Program. Under the program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Charles H. Linehan at 310-201-9150 or 888-773-9224 or email shareholders@glancylaw.com. About GPM Glancy Prongay & Murray LLP -- http://www.glancylaw.com-- is a premier law firm representing investors and consumers in securities litigation and other complex class action litigation. ISS Securities Class Action Services has consistently ranked GPM in its annual SCAS Top 50 Report. In 2018, GPM was ranked a top five law firm in number of securities class action settlements, and a top six law firm for total dollar size of settlements. With four offices across the country, GPM's nearly 40 attorneys have won groundbreaking rulings and recovered billions of dollars for investors and consumers in securities, antitrust, consumer, and employment class actions. GPM's lawyers have handled cases covering a wide spectrum of corporate misconduct including cases involving financial restatements, internal control weaknesses, earnings management, fraudulent earnings guidance and forward looking statements, auditor misconduct, insider trading, violations of FDA regulations, actions resulting in FDA and DOJ investigations, and many other forms of corporate misconduct. GPM's attorneys have worked on securities cases relating to nearly all industries and sectors in the financial markets, including, energy, consumer discretionary, consumer staples, real estate and REITs, financial, insurance, information technology, health care, biotech, cryptocurrency, medical devices, and many more. GPM's past successes have been widely covered by leading news and industry publications such as The Wall Street Journal, The Financial Times, Bloomberg Businessweek, Reuters, the Associated Press, Barron's, Investor's Business Daily, Forbes, and Money. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. [GN] PEAK FINTECH: Rosen Law Discloses Probe for Potential Class Action ------------------------------------------------------------------ WHY: Rosen Law Firm, a global investor rights law firm, announces an investigation of potential securities claims on behalf of shareholders of Peak Fintech Group Inc. (NASDAQ: TNT) (OTC: PKKFF) resulting from allegations that Peak may have issued materially misleading business information to the investing public. SO WHAT: If you purchased Peak securities you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. The Rosen Law firm is preparing a class action seeking recovery of investor losses. WHAT TO DO NEXT: To join the prospective class action, go to https://www.rosenlegal.com/cases-register-2169.html or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. WHAT IS THIS ABOUT: On October 4, 2021, market researcher Grizzly Research published a report alleging discrepancies in Peak's business practices. The report alleged, in relevant part, that: (1) Peak's acquisition of Heartbeat, a Chinese insurance product management and brokerage platform, was mired in suspicious dealings, in which Peak paid a company that was not the registered owner of Heartbeat; (2) the actual registered owner of Heartbeat reported zero revenues in 2019 and 2020; (3) Peak's statements regarding Heartbeat's growth since 2020 were not substantiated by basic facts, including the fact that Heartbeat's website did not go live until 5 days after Peak's acquisition; (4) there was evidence that Peak inflated its reported revenue by up to 112% in recent fiscal years; (5) the CEO of Peak Group China was previously associated with several companies listed on government blacklists in China. On this news, Peak's share price fell over 17.4%, from closing at $7.50 on October 1, 2021, the previous trading day, to close at $6.19 on October 4, 2021 on unusually heavy trading volume. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers.[GN] PHILADELPHIA, PA: Cardona Has Leave to Proceed in Forma Pauperis ---------------------------------------------------------------- In the case, JEFFERY CARDONA, Plaintiff v. BLANCHE CARNEY, et al., Defendants, Civil Action No. 21-CV-4376 (E.D. Pa.), Judge Berle M. Schiller of the U.S. District Court for the Eastern District of Pennsylvania grants Cardona leave to proceed in forma pauperis, dismisses certain of his claims, and permits his excessive force claim to proceed at this time. Introduction Plaintiff Cardona, a prisoner incarcerated at the Curran-Fromhold Correctional Facility ("CFCF"), is one of several prisoners who initiated the putative class action pursuant to 42 U.S.C. Section 1983, challenging the constitutionality of various conditions at CFCF. The Complaint in the case initially proceeded before Judge Rufe in Civil Action Number 21-1435. In a Sept. 29, 2021 Memorandum and Order, Judge Rufe: (1) dismissed as Plaintiffs those prisoners who had either failed to pay the fees or moved to proceed in forma pauperis after having been given an opportunity to do so; (2) concluded that the Plaintiffs, who were proceeding pro se, could not represent a class of prisoners and that, in any event, the class claims should be dismissed without prejudice as inadequately pled; and (3) concluded that the individual claims of the three remaining Plaintiffs should be severed from each other. In accordance with her conclusion that joinder of the individual claims was improper, Judge Rufe directed severance of Cardona's claims (along with his Motion to Proceed In Forma Pauperis and Prisoner Account Statement) into a new lawsuit, which was docketed as the instant civil action and assigned to Judge Schiller. Background The Complaint in the case is partially styled as a class action based on allegations supporting class claims and the individualized declarations of six Plaintiffs, including Cardona. The Complaint names the following Defendants: (1) O. Ford; (2) C/O Antwi; (3) Blanche Carney; and (4) Capt. Harmer. Carney is the Commissioner of the Philadelphia Department of Prisons and the other Defendants are employed at CFCF. Page six of the Complaint lists six additional Defendants: (1) C/O M. Friend; (2) Sgt. Brown; (3) "Oliver ___ H"; (4) Lt. Reid; (5) Sgt. John Doe; and (6) C/O Felts. The Defendants are sued in their individual and official capacities. Mr. Cardona, who was a convicted and sentenced inmate at the time of relevant events, asserts claims based on events that occurred in November 2020. He alleges that he noticed other inmates looking at his naked body while he used the shower due to the lack of shower curtains. Cardona spoke to Correctional Officer Felts and asked to speak to a supervisor about the shower issue and his concern that he was "housed in C.F.C.F. under quarantine and not transferred directly to P.A.D.O.C." Mr. Cardona alleges that Felts rejected his request and assaulted him by "striking him with several blows which knocked him to the ground" and caused him to hit his head. Felts allegedly continued to stomp and kick Cardona while he was on the ground until Cardona was unconscious. Cardona claims he was then placed in solitary confinement without receiving medical attention and sent to A.1.3 without receiving a disciplinary hearing. Cardona claims "the conditions on A.1.3 are horrible, they are locked down 24 hours a day, no sheets or blanket exchange, no access to law library, no proper mental health assistance and the cells are always extremely cold." Mr. Cardona alleges that his rights have been violated because he is a state prisoner "illegally housed" within the Philadelphia Prison System. Cardona also alleges that his Eighth Amendment rights were violated because he did not receive medical treatment and that his due process rights were violated because he did not receive a disciplinary hearing. The Complaint seeks class certification (which has already effectively been denied by Judge Rufe), $2 million in compensatory and punitive damages "for illegal placement in solitary confinement on A-1-3 during COVID 19 pandemic with no due process hearing" and "immediate release" from A-1-3. As noted, the Complaint initially pursued class claims for relief, specifically "on behalf of the Plaintiffs as well as any and all other similarly situated individuals incarcerated at CFCF and housed on A-1-3" for violation of their due process rights, excessive force, deliberate indifference and "collusion." They alleged that "as a result of the customs, policies, practices and actions adopted and undertaken by" the Defendants, they were placed on a "segregation-detention unit," i.e., A-1-3, "and subjected to punitive status without receiving a disciplinary hearing in violation of due process." They also alleged that they were assaulted by correctional officers before they were housed on A-1-3 and subjected to unconstitutional conditions on the unit. Discussion To state a claim under Section 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Judge Schiller concludes that Cardona has stated an excessive force claim against Defendant Felts in his individual capacity but that he has not pled any other basis for a plausible claim at this time. A. Official Capacity Claims Mr. Cardona sued the Defendants in their individual and official capacities. Official capacity claims are indistinguishable from claims against the entity that employs the officials, here the City of Philadelphia. So, to maintain a claim against the Defendants in their official capacity, Cardona must plead a basis for municipal liability. Judge Schiller dismisses Cardona's claims against the Defendants in their official capacities on that basis. He finds that the Plaintiffs have not only failed to allege a municipal policy or custom, but they have also failed to allege plausibly that the conditions on A-1-3 violated the Constitution. They have not alleged sufficient facts about the extent, duration, and effect of those conditions from which the Court could infer that the challenged conditions were objectively serious, such that inmates housed on A-1-3 were deprived of a basic human need or that their health or safety was at risk. B. Individual Claims Judge Schiller construes Cardona's Complaint as attempting to raise excessive force claims based on the incident with Defendant Felts, due process based on Cardona's confinement at CFCF generally and on A.1.3 specifically, Eighth Amendment claims based on the conditions of A.1.3 and the alleged denial of adequate medical care for Cardona's injuries, and potentially a claim for denial of access to the courts. Judge Schiller finds that Cardona's allegations are sufficient to state an excessive force claim against Felts. However, none of Cardona's allegations support an excessive force claim against any other Defendants, so this claim may only proceed against Felts. Accordingly, Cardona has not stated a claim against these Defendants. This means Judge Schiller will dismiss Cardona's remaining claims, i.e., his due process claims, Eighth Amendment claims and any claims he was denied access to the courts, because Cardona has not adequately alleged how any of the named Defendants were responsible for those constitutional violations, including Felts. Conclusion For the foregoing reasons, Judge Schiller grants Cardona leave to proceed in forma pauperis and dismiss all of his claims with the exception of his excessive force claim against Defendant Felts in his individual capacity. Cardona will be given the option of proceeding at this time on his remaining claim or filing a comprehensive amended complaint. An appropriate Order follows, which in part provides further guidance to Cardona about his options for proceeding. A full-text copy of the Court's Oct. 20, 2021 Memorandum is available at https://tinyurl.com/duwjy64m from Leagle.com. QUEST DIAGNOSTICS: Bid to Dismiss AMCA Data Security Suit Pending ----------------------------------------------------------------- Quest Diagnostics Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the company's motion to dismiss the consolidated putative class action suit related to the 2018-2019 AMCA Data Security Incident is still pending. On June 3, 2019, the Company reported that Retrieval-Masters Creditors Bureau, Inc./American Medical Collection Agency ("AMCA") had informed the Company and Optum360 LLC that an unauthorized user had access to AMCA's system between August 1, 2018 and March 30, 2019 (the "AMCA Data Security Incident"). Optum360 provides revenue management services to the Company, and AMCA provided debt collection services to Optum360. AMCA first informed the Company of the AMCA Data Security Incident on May 14, 2019. AMCA's affected system included financial information (e.g., credit card numbers and bank account information), medical information and other personal information (e.g., social security numbers). Test results were not included. Neither Optum360's nor the Company's systems or databases were involved in the incident. AMCA also informed the Company that information pertaining to other laboratories' customers was also affected. Following announcement of the AMCA Data Security Incident, AMCA sought protection under the U.S. bankruptcy laws. The bankruptcy proceeding has been dismissed. Numerous putative class action lawsuits were filed against the Company related to the AMCA Data Security Incident. The U.S. Judicial Panel on Multidistrict Litigation transferred the cases still pending to, and consolidated them for pre-trial proceedings in, the U.S. District Court for New Jersey. In November 2019, the plaintiffs in the multidistrict proceeding filed a consolidated putative class action complaint against the Company and Optum360 that named additional individuals as plaintiffs and that asserted a variety of common law and statutory claims in connection with the AMCA Data Security Incident. In January 2020, the Company moved to dismiss the consolidated complaint; the motion to dismiss is pending. No further updates were provided in the Company's SEC report. Quest Diagnostics Incorporated, incorporated on September 20, 1996, is a provider of diagnostic information services. The Company operates through two businesses: Diagnostic Information Services and Diagnostic Solutions. The company is based in Secaucus, New Jersey. QUEST DIAGNOSTICS: Loses Bid to Junk Consolidated ERISA Suit ------------------------------------------------------------- Quest Diagnostics Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the court denied the company's motion to dismiss the consolidated putative class action suit entitled, In re: Quest Diagnostics ERISA Litigation. In 2020, two putative class action lawsuits were filed in the U.S. District Court for New Jersey against the Company and other defendants with respect to the Company's 401(k) plan. The complaint alleges, among other things, that the fiduciaries of the 401(k) plan breached their duties by failing to disclose the expenses and risks of plan investment options, allowing unreasonable administration expenses to be charged to plan participants, and selecting and retaining high cost and poor performing investments. In October 2020, the court consolidated the two lawsuits under the caption In re: Quest Diagnostics ERISA Litigation and plaintiffs filed a consolidated amended complaint. In May 2021, the court denied the Company's motion to dismiss the complaint. No further updates were provided in the Company's SEC report. Quest Diagnostics Incorporated, incorporated on September 20, 1996, is a provider of diagnostic information services. The Company operates through two businesses: Diagnostic Information Services and Diagnostic Solutions. The company is based in Secaucus, New Jersey. RECONNAISSANCE ENERGY: Robbins Geller Reminds of Dec. 27 Deadline ----------------------------------------------------------------- The law firm of Robbins Geller Rudman & Dowd LLP announces that purchasers or acquirers of Reconnaissance Energy Africa Ltd. f/k/a Lund Enterprises Corp. ("ReconAfrica") (OTCMKTS: RECAF; LGDOF) publicly traded securities between February 28, 2019 and September 7, 2021, inclusive (the "Class Period") have until December 27, 2021 to seek appointment as lead plaintiff in Muller v. Reconnaissance Energy Africa Ltd. f/k/a Lund Enterprises Corp., No. 21-cv-05910 (E.D.N.Y.). Commenced on October 25, 2021 and assigned to Judge Frederic Block, the ReconAfrica class action lawsuit charges ReconAfrica as well as certain of its top officials with violations of the Securities Exchange Act of 1934. If you wish to serve as lead plaintiff of the ReconAfrica class action lawsuit, please provide your information by clicking here. You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the ReconAfrica class action lawsuit must be filed with the court no later than December 27, 2021. CASE ALLEGATIONS: ReconAfrica purports to engage in the identification, exploration, and development of oil and/or gas assets in Namibia and Botswana, including in the Kalahari Desert and other fragile areas. The ReconAfrica class action lawsuit alleges that, throughout the Class Period, defendants made false and misleading statements and failed to disclose: (i) ReconAfrica's plan for using unconventional means for energy extraction (including fracking) in the fragile Kavango area; (ii) that ReconAfrica would begin unlicensed drilling tests; (iii) that ReconAfrica would illegally use water for well testing; (iv) that ReconAfrica would illegally store used water in unlined pools; (v) that ReconAfrica would skirt Namibian law and hire an inadequate and inappropriate consultant; (vi) that, as a result, ReconAfrica risked future well, drilling, and water-related licenses in Namibia and Botswana; (vii) that, contrary to its representations, ReconAfrica did not reach out nor provide adequate information (including in relevant local languages) through accessible means to those to be impacted by its testing and potential energy extraction; (viii) that ReconAfrica's interests are in the Owambo Basin, not the so-called Kavango Basin; (ix) that ReconAfrica has continuously engaged in stock pumping; and (x) as a result of the foregoing, defendants' public statements were materially false and/or misleading at all relevant times. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased ReconAfrica securities during the Class Period to seek appointment as lead plaintiff in the ReconAfrica class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the ReconAfrica class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the ReconAfrica class action lawsuit. An investor's ability to share in any potential future recovery of the ReconAfrica class action lawsuit is not dependent upon serving as lead plaintiff. ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: With 200 lawyers in 9 offices nationwide, Robbins Geller Rudman & Dowd LLP is the largest U.S. law firm representing investors in securities class actions. Robbins Geller attorneys have obtained many of the largest shareholder recoveries in history, including the largest securities class action recovery ever – $7.2 billion – in In re Enron Corp. Sec. Litig. The 2020 ISS Securities Class Action Services Top 50 Report ranked Robbins Geller first for recovering $1.6 billion for investors last year, more than double the amount recovered by any other securities plaintiffs' firm. Please visit http://www.rgrdlaw.comfor more information. [GN] RESTAURANT BRANDS: Latifi Suit Against TDL Group Underway --------------------------------------------------------- Restaurant Brands International Limited Partnership said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2021, for the quarterly period ended September 30, 2021, that The TDL Group Corp. continues to defend a class action complaint initiated by Samir Latifi. In July 2019, a class action complaint was filed against The TDL Group Corp. in the Supreme Court of British Columbia by Samir Latifi, individually and on behalf of all others similarly situated. The complaint alleges that TDL violated the Canadian Competition Act by incorporating an employee no-solicitation and no-hiring clause in the standard form franchise agreement all Tim Hortons franchisees are required to sign. The plaintiff seeks damages and restitution, on behalf of himself and other members of the class. In February 2021, TDL filed and served an application to strike which was heard in May 2021. Restaurant Brands said, "While we currently believe this claim is without merit, we are unable to predict the ultimate outcome of this case or estimate the range of possible loss, if any." Restaurant Brands International Limited Partnership operates and franchises quick service restaurants. The company operates through three segments: Tim Hortons, Burger King, and Popeyes. The company was founded in 2014 and is headquartered in Oakville, Canada. Restaurant Brands International Limited Partnership is a subsidiary of Restaurant Brands International Inc. RESTAURANT BRANDS: Suits Over Data Collection Underway in Canada ---------------------------------------------------------------- Restaurant Brands International Limited Partnership said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2021, for the quarterly period ended September 30, 2021, that the company continues to defend class action suits in Canada related to its alleged collection of geolocation data through the Tim Hortons mobile application. On June 30, 2020, a class action complaint was filed against Restaurant Brands International Inc., Restaurant Brands International Limited Partnership and The TDL Group Corp. in the Quebec Superior Court by Steve Holcman, individually and on behalf of all Quebec residents who downloaded the Tim Hortons mobile application. On July 2, 2020, a Notice of Action related to a second class action complaint was filed against Restaurant Brands International Inc., in the Ontario Superior Court by Ashley Sitko and Ashley Cadeau, individually and on behalf of all Canadian residents who downloaded the Tim Hortons mobile application. On August 31, 2020, a notice of claim was filed against Restaurant Brands International Inc. in the Supreme Court of British Columbia by Wai Lam Jacky Law on behalf of all persons in Canada who downloaded the Tim Hortons mobile application or the Burger King mobile application. On September 30, 2020, a notice of action was filed against Restaurant Brands International Inc., Restaurant Brands International Limited Partnership, The TDL Group Corp., Burger King Worldwide, Inc. and Popeyes Louisiana Kitchen, Inc. in the Ontario Superior Court of Justice by William Jung on behalf of a to be determined class. All of the complaints allege that the defendants violated the plaintiff's privacy rights, the Personal Information Protection and Electronic Documents Act, consumer protection and competition laws or app-based undertakings to users, in each case in connection with the collection of geolocation data through the Tim Hortons mobile application, and in certain cases, the Burger King and Popeyes mobile applications. Each plaintiff seeks injunctive relief and monetary damages for himself or herself and other members of the class. Restaurant Brands said, "These cases are in preliminary stages and we intend to vigorously defend against these lawsuits, but we are unable to predict the ultimate outcome of any of these cases or estimate the range of possible loss, if any." Restaurant Brands International Limited Partnership operates and franchises quick service restaurants. The company operates through three segments: Tim Hortons, Burger King, and Popeyes. The company was founded in 2014 and is headquartered in Oakville, Canada. Restaurant Brands International Limited Partnership is a subsidiary of Restaurant Brands International Inc. RESTAURANTS BRANDS: Denial of Bid to Amend Complaint Under Appeal ----------------------------------------------------------------- Restaurant Brands International Limited Partnership said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2021, for the quarterly period ended September 30, 2021, that the appeal in suit over non-compete policy, is pending. On October 5, 2018, a class action complaint was filed against Burger King Worldwide, Inc. ("BKW") and Burger King Corporation ("BKC") in the U.S. District Court for the Southern District of Florida by Jarvis Arrington, individually and on behalf of all others similarly situated. On October 18, 2018, a second class action complaint was filed against RBI, BKW and BKC in the U.S. District Court for the Southern District of Florida by Monique Michel, individually and on behalf of all others similarly situated. On October 31, 2018, a third class action complaint was filed against BKC and BKW in the U.S. District Court for the Southern District of Florida by Geneva Blanchard and Tiffany Miller, individually and on behalf of all others similarly situated. On November 2, 2018, a fourth class action complaint was filed against RBI, BKW and BKC in the U.S. District Court for the Southern District of Florida by Sandra Muster, individually and on behalf of all others similarly situated. These complaints have been consolidated and allege that the defendants violated Section 1 of the Sherman Act by incorporating an employee no-solicitation and no-hiring clause in the standard form franchise agreement all Burger King franchisees are required to sign. Each plaintiff seeks injunctive relief and damages for himself or herself and other members of the class. On March 24, 2020, the Court granted BKC's motion to dismiss for failure to state a claim and on April 20, 2020 the plaintiffs filed a motion for leave to amend their complaint. On April 27, 2020, BKC filed a motion opposing the motion for leave to amend. The court denied the plaintiffs motion for leave to amend their complaint in August 2020 and the plaintiffs appealed this ruling. Oral arguments for the appeal were heard in September 2021 and the parties await a ruling on the appeal. Restaurant Brands said, "While we currently believe these claims are without merit, we are unable to predict the ultimate outcome of this case or estimate the range of possible loss, if any." Restaurant Brands International Limited Partnership operates and franchises quick service restaurants. The company operates through three segments: Tim Hortons, Burger King, and Popeyes. The company was founded in 2014 and is headquartered in Oakville, Canada. Restaurant Brands International Limited Partnership is a subsidiary of Restaurant Brands International Inc. ROYAL FINANCIAL: Monteverde & Associates to Probe After Merger -------------------------------------------------------------- Juan Monteverde, founder and managing partner at Monteverde & Associates PC, a national securities firm rated Top 50 in the 2018-2020 ISS Securities Class Action Services Report and headquartered at the Empire State Building in New York City, is investigating: Royal Financial, Inc. (RYFL) relating to its proposed acquisition by Finward Bancorp. RYFL shareholders will receive either $20.14 in cash or 0.4609 shares of Finward per share they own. Click here for more information: http://monteverdelaw.com/case/royal-financial-inc.It is free and there is no cost or obligation to you. [GN] SE TRAINS: Class Action Against Rail Franchises Can Proceed ----------------------------------------------------------- The Association of British Commuters disclosed that a GBP93 million class action lawsuit against the Southeastern and South Western rail franchises will proceed to trial at the Competition Appeal Tribunal. The long-awaited permission for the 'boundary fares' case was granted on Oct. 19, and it's likely to lead to further lawsuits against the railway's complex fares system. The 'Boundary Fares' Case The claim relates to an alleged 'abuse of market dominance' by Southeastern and South Western, in failing to make cheaper 'boundary fares' available to London Travelcard holders. It argues that the train operators have been overcharging passengers who travel outside the Zone 6 boundary; effectively charging double for the portion of the journey already covered by their Travelcard. The claim for damages goes back to 2015 and includes: The Go-Ahead Group/Keolis (Southeastern); First/MTR (South Western Railway); and Stagecoach (South West Trains). Claimant Justin Gutmann and his legal team have waited over two and a half years for the 'Collective Proceedings Order' (CPO), after a similar case against Mastercard caused long delays to the process. The Merricks vs Mastercard case was granted a CPO in August, making it the first ever US-style class action lawsuit to go forward in the UK - and clearing the way for a much faster process in future. The 'boundary fares' class action has long been considered to be a test case for consumer rights on the railway, and the CPO announcement is sure to send shockwaves throughout the industry. Though this particular case is confined to the Southeastern and South Western rail franchises, the issue of 'boundary fares' relates to multiple train operating companies running out of London; presenting a further risk of litigation in this area alone. The Govia Thameslink Railway Case The new legal cases are 'opt-out' class actions, first made possible in the UK by the Consumer Rights Act 2015. Previously, such cases took place on an 'opt-in' basis, requiring the sign up of a group of claimants. Now, it's possible to undertake an action on behalf of a prospective class, where passengers will be included by default and entitled to compensation if the case is successful. A second rail fare lawsuit of this kind was launched in July against Govia Thameslink Railway and is now awaiting the Competition Appeal Tribunal's decision on whether to grant a CPO. GTR is the only train company in the UK to have 'sub brands' within the same company, and the case alleges that it has used Southern Rail, Gatwick Express and Thameslink to 'unlawfully' control ticket options on the Brighton main line. GTR recently commented on the claim: "We dispute the allegation that we have breached competition law, and do not believe the claim should be allowed to proceed. We work in a highly regulated industry and fully comply with the terms of our franchise agreement with the Department for Transport. We will make our submissions to the tribunal in due course." Their statement raises wider questions about the government's responsibility in these cases. For example; if GTR were only 'complying with the terms of their franchise agreement', could the taxpayer be left on the hook for potential damages? Government failure on rail fare reform The government's promises on rail fare reform go back seven years, and yet they have repeatedly failed to fix our broken system. Initially, they delegated the task to the Rail Delivery Group (Association of Train Operating Companies Ltd.), who were supposed to reform Britain's notoriously complex rail fare system while keeping it 'revenue neutral'. After this attempt failed, further promises were made by the 'Williams Rail Review'; which has yet to produce any detail on fare reform, despite being underway for three years already. Serious questions must be raised about the government's failure to act on fare reform, and to what extent they might have exposed the taxpayer to liability. Legal commentators note that the new class action regime is 'potentially franchise-ending territory' - but who will be footing the bill? And how much will this new legal pressure add to the contractual risks around covid 'emergency contracts' - as highlighted in a recent report by the Public Accounts Committee? Most importantly of all, when will passengers finally get the simple, fair and affordable ticketing system they deserve? The controversy around 'boundary fares' and GTR 'sub brands' will come as no surprise to commuters on these services, many of whom have been complaining about these issues for years. It should not take class action lawsuits to finally put them under the spotlight. [GN] SEI INVESTMENTS: Suits Over SPTC Services to Stanford Trust Ongoing ------------------------------------------------------------------- SEI Investments Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2021, for the quarterly period ended September 30, 2021, that the company and SEI Private Trust Company (SPTC) continue to defend several class action suits related to SPTC's services to Stanford Trust Company. SEI has been named in seven lawsuits filed in Louisiana courts; four of the cases also name SEI Private Trust Company (SPTC) as a defendant. The underlying allegations in all actions relate to the purported role of SPTC in providing back-office services to Stanford Trust Company. The complaints allege that SEI and SPTC participated in some manner in the sale of "certificates of deposit" issued by Stanford International Bank so as to be a "seller" of the certificates of deposit for purposes of primary liability under the Louisiana Securities Law or so as to be secondarily liable under that statute for sales of certificates of deposit made by Stanford Trust Company. Two of the actions also include claims for violations of the Louisiana Racketeering Act and possibly conspiracy, and a third also asserts claims of negligence, breach of contract, breach of fiduciary duty, violations of the uniform fiduciaries law, negligent misrepresentation, detrimental reliance, violations of the Louisiana Racketeering Act, and conspiracy. The procedural status of the seven cases varies. The Lillie case, filed originally in the 19th Judicial District Court for the Parish of East Baton Rouge, was brought as a class action. A group of plaintiffs who opted out of the Lillie class filed a complaint against SEI and SPTC in the United States District Court in the Middle District of Louisiana, alleging claims essentially the same as those in Lillie. In both cases, as a result of the proceedings in the Northern District of Texas, only the plaintiffs' secondary liability claims under Section 714(B) of the Louisiana Securities Law remain. On January 31, 2019, the Judicial Panel on Multidistrict Litigation remanded the Lillie and Ahders proceedings to the Middle District of Louisiana. With respect to the Lillie proceeding, on July 9, 2019, the District Court issued an order granting SEI's Summary Judgment Motion to dismiss the remaining Section 714(B) claim and denying Plaintiffs' Motion for Continuance of SEI and SPTC's Motion for Summary Judgment pursuant to Rule 56(d). On August 27, 2019, Plaintiffs-Appellants filed a Notice of Appeal to the United States Court of Appeals for the Fifth Circuit of the District Court's dismissal of the Lillie matter. On May 14, 2021, the United States Court of Appeals for the Fifth Circuit unanimously affirmed the District Court's order granting summary judgment in favor SEI and the Insurer Defendants in the Lillie matter. With respect to the Ahders proceeding, on January 24, 2020, the District Court issued an order granting SEI's Summary Judgment Motion to dismiss the remaining Section 714(B) claim. On March 17, 2020, Plaintiffs-Appellants filed a Notice of Appeal to the United States Court of Appeals for the Fifth Circuit of the District Court's dismissal of the Ahders matter. On December 3, 2020, the United States Court of Appeals for the Fifth Circuit unanimously affirmed the District Court's order granting summary judgment in favor of SEI and the Insurer Defendants in the Adhers matter. Another case, filed in the 23rd Judicial District Court for the Parish of Ascension, also was removed to federal court and transferred by the Judicial Panel on Multidistrict Litigation to the Northern District of Texas and the Stanford MDL. The schedule for responding to that Complaint has not yet been established. Two additional cases remain in the Parish of East Baton Rouge. Plaintiffs filed petitions in 2010 and have granted SEI and SPTC indefinite extensions to respond. No material activity has taken place since. In two additional cases, filed in East Baton Rouge and brought by the same counsel who filed the Lillie action, virtually all of the litigation to date has involved motions practice and appellate litigation regarding the existence of federal subject matter jurisdiction under the federal Securities Litigation Uniform Standards Act (SLUSA). The matters were removed to the United States District Court for the Northern District of Texas and consolidated. The court then dismissed the action under SLUSA. The Court of Appeals for the Fifth Circuit reversed that order, and the Supreme Court of the United States affirmed the Court of Appeals judgment on February 26, 2014. The matters were remanded to state court and no material activity has taken place since that date. While the outcome of this litigation remains uncertain, SEI and SPTC believe that they have valid defenses to plaintiffs' claims and intend to defend the lawsuits vigorously. SEI said, "Because of uncertainty in the make-up of the Lillie class, the specific theories of liability that may survive a motion for summary judgment or other dispositive motion, the relative lack of discovery regarding damages, causation, mitigation and other aspects that may ultimately bear upon loss, the Company is not reasonably able to provide an estimate of loss, if any, with respect to the foregoing lawsuits." SEI Investments Company is a publicly owned asset management holding company. Through its subsidiaries, the firm provides wealth management, retirement and investment solutions, asset management, asset administration, investment processing outsourcing solutions, financial services, and investment advisory services to its clients. SEI Investments Company was founded in 1968 and is based in Oaks, Pennsylvania. SERVICE EMPLOYEES: 9th Cir. Affirms Dismissal of Hamidi Class Suit ------------------------------------------------------------------ In the case, KOUROSH KENNETH HAMIDI, et al., Plaintiffs-Appellants, and CECILIA STANFIELD; MOZELLE YARBROUGH, Plaintiffs v. SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000; BETTY T. YEE, Controller, State of California, Defendants-Appellees, Case No. 19-17442 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the Employees' class action lawsuit. Kourosh Hamidi and over a dozen other public sector employees ("Employees") appeal from the district court's dismissal of their class action lawsuit against the Union and the California State Controller. The Employees seek declaratory and monetary relief under 42 U.S.C. Section 1983 for agency fees collected from their paychecks in violation of the First Amendment. The Ninth Circuit reviews both the dismissal of a complaint for failure to state a claim and the grant of summary judgment de novo. The Employees' claim for prospective declaratory relief is moot, the Ninth Circuit finds. It explains that the Union stopped collecting agency fees in light of Janus v. American Federation of State, County & Municipal Employees, Council 31, 138 S.Ct. 2448 (2018). Thus, the challenged opt-out system has not been used for more than a year. The day after Janus was decided, the State Controller cancelled the deduction of agency fees from all nonconsenting public employees. Over a month later, the California Attorney General issued an advisory opinion concerning Janus, explaining that the state "may no longer automatically deduct a mandatory agency fee from the salary or wages of a non-member public employee who does not affirmatively choose to financially support the union." Similarly, in-house counsel for the Union filed an affidavit stating that the Union stopped collecting agency fees and using the opt-out procedure following Janus. Union counsel also conceded that collecting agency fees from non-union members is unconstitutional under Janus and that this determination binds the Union. Based on these facts, the district court found the Employees' claim for prospective relief moot. The Ninth Circuit agrees that "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." The Attorney General's and the Union's acceptance of the unconstitutionality of mandatory agency fee collection, along with the termination of the opt-out system itself, make it clear that their "allegedly wrongful behavior is not likely to occur or continue and that there is no threatened injury certainly impending." There is no reasonable likelihood that the Union or the State Controller will resume collecting fees or using the challenged opt-out procedure. That the California statutes about agency fees, such as Cal. Gov't Code Sections 3513(i) & (k), 3515, 3515.7, and 3515.8, have not been repealed does not give standing to the Employees. Unconstitutional statutes, without more, give no one a right to sue. Thus, the Ninth Circuit holds that the Employees' allegations do not "plausibly give rise to an entitlement to relief," and affirms. The Employees' claim for retroactive relief is foreclosed by Danielson v. Inslee, 945 F.3d 1096 (9th Cir. 2019), the Ninth Circuit further finds. It says, the Employees ask the Union for a refund of all agency fees collected from their paychecks after July 2013. Danielson ruled that unions are entitled to a good-faith defense under Section 1983 and are not liable to pay back the agency fees collected before Janus. Danielson also held that "private parties" are entitled "to rely on judicial pronouncements of what the law is, without exposing themselves to potential liability for doing so." Even though the Employees' claim in the case is slightly different from Danielson, the Ninth Circuit holds that the Union's use of the opt-out system still complied with then-existing Supreme Court and Ninth Circuit law. Even with the Supreme Court's decision in Knox v. Service Employees International Union, Local 1000, 567 U.S. 298 (2012), the Union was entitled to rely on Mitchell's pronouncement of the law in good faith. Because the Union's collection of agency fees through the opt-out system was "sanctioned not only by state law, but also by directly on-point" Ninth Circuit precedent, the Ninth Circuit holds that the Union is entitled to a good-faith defense to "retrospective monetary liability under section 1983 for the agency fees it collected pre-Janus." Thus, Danielson precludes the Employees' recovery of agency fees. A full-text copy of the Court's Oct. 26, 2021 Memorandum is available at https://tinyurl.com/5f5f6423 from Leagle.com. SERVICE EMPLOYEES: Ninth Circuit Affirms Dismissal of Gabriele Suit ------------------------------------------------------------------- In the case, MARK GABRIELE; JEN-FANG LEE, Plaintiffs-Appellants v. SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000; SERVICE EMPLOYEES INTERNATIONAL UNION, Defendants-Appellees, and NATIONAL EDUCATION ASSOCIATION OF THE UNITED STATES, et al., Defendants, Case No. 20-16353 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the Appellants' putative class action. Plaintiffs-Appellants Mark Gabriele and Jen-Fang Lee appeal the district court's dismissal of their putative class action brought against Service Employees International Union Local 1000 and Service Employees International Union. The Appellants seek declaratory and monetary relief under 42 U.S.C. Section 1983 for agency fees collected from paychecks in violation of the First Amendment. They also bring common law conversion and restitution claims. The Ninth Circuit reviews de novo. It holds that the district court properly dismissed Appellants' First Amendment claim, as it is established law in this Circuit that a public sector union may "invoke an affirmative defense of good faith to retrospective monetary liability under section 1983" for agency fees it collected prior to the Supreme Court's decision in Janus v. American Federation of State, County & Municipal Employees, Council 31, 138 S.Ct. 2448 (2018). The Appellants' claim for prospective declaratory relief is moot. The Ninth Circuit explains that it is an inexorable command of the United States Constitution that the federal courts confine themselves to deciding actual cases and controversies. The limitations that Article III imposes upon federal court jurisdiction are not relaxed in the declaratory judgment context. When the Supreme Court issued Janus, the Appellants' union stopped collecting agency fees from non-union members. Shortly thereafter, the California Attorney General issued an advisory opinion explaining that the state "may no longer automatically deduct a mandatory agency fee from the salary or wages of a non-member public employee who does not affirmatively choose to financially support the union." Similarly, the state administrative agency that enforces public employment collective bargaining statutes stated that it "will no longer enforce existing statutory or regulatory provisions requiring non-members to pay an agency fee without having consented to such a fee." Accordingly, the Ninth Circuit holds that the conduct found unconstitutional in Janus has ceased and "could not reasonably be expected to recur." The district court also properly dismissed the Appellants' state law claims. The Ninth Circuit finds that the collection of agency fees was permitted by the Dills Act, California Government Code Section 3513(k), 3515.7, 3515.8. The Appellants' common law claims, asserting conversion and seeking restitution for such collection, are inconsistent with the statute. Furthermore, the common law claims are preempted. A full-text copy of the Court's Oct. 26, 2021 Memorandum is available at https://tinyurl.com/3pbuxnxd from Leagle.com. SERVICE EMPLOYEES: Ninth Circuit Affirms Dismissal of Penning Suit ------------------------------------------------------------------ In the case, STACY PENNING, Plaintiff-Appellant v. SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1021; SERVICE EMPLOYEES INTERNATIONAL UNION, Defendants-Appellees, Case No. 20-15226 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of Penning's putative class action. Plaintiff Penning appeals the district court's dismissal of his putative class action brought against Service Employees International Union Local 1021 and other local unions affiliated with Service Employees International Union nationwide. Penning seeks declaratory and monetary relief under 42 U.S.C. Section 1983 for agency fees collected from paychecks in violation of the First Amendment. He also brings common law conversion and restitution claims. The Ninth Circuit reviews de novo. It holds that the district court properly dismissed Penning's First Amendment claim, as it is established law in this Circuit that a public sector union may "invoke an affirmative defense of good faith to retrospective monetary liability under section 1983" for agency fees it collected prior to the Supreme Court's decision in Janus v. American Federation of State, County & Municipal Employees, Council 31, 138 S.Ct. 2448 (2018). Mr. Penning's claim for prospective declaratory relief is moot, the Ninth Circuit finds. It explains that it is an inexorable command of the United States Constitution that the federal courts confine themselves to deciding actual cases and controversies. The limitations that Article III imposes upon federal court jurisdiction are not relaxed in the declaratory judgment context. When the Supreme Court issued Janus, Penning's union immediately stopped collecting agency fees from non-union members. Shortly thereafter, the California Attorney General issued an advisory opinion explaining that the state "may no longer automatically deduct a mandatory agency fee from the salary or wages of a non-member public employee who does not affirmatively choose to financially support the union." Similarly, the state administrative agency that enforces public employment collective bargaining statutes stated that it "will no longer enforce existing statutory or regulatory provisions requiring non-members to pay an agency fee without having consented to such a fee." Accordingly, it is clear that the conduct found unconstitutional in Janus has ceased and "could not reasonably be expected to recur." The district court also properly dismissed Penning's state law claims, the Ninth Circuit finds. It says, the collection of agency fees was permitted by the Meyers-Milias-Brown Act, California Government Code Section 3508.5. Penning's common law claims, asserting conversion and seeking restitution for such collection, are inconsistent with the statute. Furthermore, the common law claims are preempted. A full-text copy of the Court's Oct. 26, 2021 Order is available at https://tinyurl.com/kteme7uf from Leagle.com. SOUTH CAROLINA: Blair's Civil Rights Suit Dismissed With Prejudice ------------------------------------------------------------------ In the case, Marcus A. Blair, #329604, Plaintiff v. Director Bryan Sterling and Warden Terrie Wallace, Defendants, Civil Action No. 5:20-cv-02548-JMC (D.S.C.), Judge J. Michell Childs of the U.S. District Court for the District of South Carolina, Orangeburg Division, dismisses the lawsuit with prejudice. Background Marcus A. Blair, proceeding pro se and in forma pauperis, filed the civil rights action against Defendants Director Bryan Sterling and Warden Terrie Wallace pursuant to 42 U.S.C. Section 1983 seeking immediate release from the South Carolina Department of Corrections ("SCDC") and monetary damages based on the Defendants' alleged failure to provide appropriate medical care and properly handle the COVID-19 pandemic in the SCDC. On July 8, 2020, the Plaintiff initiated the instant action in the Court against the Defendants by filing a form Complaint for Violation of Civil Rights, which alleged putative class claims. A day later, on July 9, 2020, the court issued an Order advising Plaintiff that "he may not bring the case as a class action or litigate on behalf of other persons" and required him to submit a new complaint. On Aug. 12, 2020, the Plaintiff filed a second form Complaint for Violation of Civil Rights alleging individual claims against the Defendants. Defendant Henry McMaster filed a Motion to Dismiss for Failure to State a Claim on Oct. 13, 2020. The Court then entered a Roseboro Order on Oct. 16, 2020, which gave the Plaintiff 31 days to file materials in opposition to McMaster's Motion for Summary Judgment. The Plaintiff's case against Henry McMaster was dismissed with prejudice on May 11, 2021. On March 23, 2021, the Defendants filed a Motion for Summary Judgment. The Court entered a second Roseboro Order on March 25, 2021, advising the Plaintiff that he had 31 days to respond to the Defendants' Motion for Summary Judgment. On May 19, 2021, the Court directed the Plaintiff to inform the court whether he wished to proceed with his complaint and to file a response to the Defendants' Motion for Summary Judgment in 31 days. The Plaintiff did not respond to the Defendants' Motion for Summary Judgment. In accordance with 28 U.S.C. Section 636(b) and Local Rule 73.02(B)(2)(g) (D.S.C.), the matter was referred to a United States Magistrate Judge for pretrial handling. On June 22, 2021, the Magistrate Judge issued a Report and Recommendation recommending that the Court dismisses the action against the Defendants with prejudice for failure to prosecute pursuant to Rule 41(b). Discussion The Magistrate Judge advised the parties of their right to file specific written objections to the Report within 14 days of the date of service. However, none of the parties filed any objections before the deadline. In the absence of a timely objection to the Magistrate Judge's Report, the Court is not required to provide an explanation for adopting the recommendation. Rather, "in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' Furthermore, failure to file specific written objections to the Report results in a party's waiver of the right to appeal from the judgment of the District Court based upon such recommendation. Conclusion After conducting a thorough review of the Report and record in the case, Judge Childs concludes that the Report provides an accurate summary of the facts and law and does not contain any clear error. Therefore, she accepts the Magistrate Judge's Report and dismisses with prejudice the Complaint against the Defendants in the action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Judge Childs denies as moot the Defendants' Motion for Summary Judgment. A full-text copy of the Court's Oct. 20, 2021 Order & Opinion is available at https://tinyurl.com/wc8cew from Leagle.com. SPIRIT AIRLINES: Faces Class Action Over Breach-of-Contract ----------------------------------------------------------- Corrado Rizzi, writing for ClassAction.org, reports that Spirit Airlines faces a proposed class action over a particularly brutal 11-day period during this year's peak summer travel season in which it canceled thousands of flights and left tens of thousands of travelers stranded amid a labor shortage. The 22-page breach-of-contract complaint alleges the low-price airline was well aware it was unable to handle the "glut" of tickets sold for travel between July 30 and August 9, 2021, yet nevertheless continued to sell tickets to unwitting consumers, eventually leaving many stranded without compensation or additional information from Spirit. The plaintiffs, two Pennsylvania residents, say they're among the thousands of Spirit customers who bought plane tickets based on the airline's promise that it could handle the traffic of its scheduled flights. The case contends that travelers likely would not have bought tickets to fly with Spirit had they known the true extent of the airline's summer 2021 labor shortage and its inability to accommodate purchased travel arrangements. "Instead, Spirit ignored its customers, refusing to compensate passengers for cancelled flights, and failing to make alternative travel arrangements on other airlines or provide hotel accommodations," the lawsuit filed in Florida's Southern District Court scathes. "Spirit's actions directly caused their customers stress and discomfort, incur increased travel fees, and to miss thousands of family and business events." Spirit CEO: We "couldn't get in front of it." Cited in the complaint is an August 6, 2021 MSN article in which Spirit CEO Ted Christie admitted the airline, which at the time had canceled more than 2,000 flights due to a combination of staffing issues, bad weather and technology hiccups, "couldn't get in front of it." Between July 30 and August 9, the lawsuit says, Spirit canceled approximately 2,826 flights, or more than half of the airline's scheduled flights on multiple days. The case contends, however, that Spirit did have the ability to "get in front of it" given it knew it faced a labor shortage as the peak summer travel season approached. According to the suit, Spirit laid off or furloughed thousands of workers due to the COVID-19 pandemic and was well aware it did not have sufficient labor to meet the increased demand for flights between July 30 and August 6. Moreover, the suit alleges Spirit's labor woes were "exacerbated" by the airline's failure to maintain its flight crew operation systems, which supposedly caused its "already depleted labor supply to not arrive at airports on time to complete its scheduled flights." Despite the foregoing, Spirit did not inform customers about either the labor shortage problem or operations issues when selling tickets for flights it knew would be impossible to complete, the lawsuit alleges. Spirit was well aware that customers likely would not have purchased flight tickets had those customers been informed that Spirit was experiencing a severe labor shortage that would likely have an impact on Spirit's ability to provide flight service during the summer travel season." Tens of thousands of stranded flyers One plaintiff in the suit claims Spirit did not refund the purchase price of her tickets or arrange for alternative travel arrangements for her family's canceled flights. Instead, she was issued a "reservation credit" and a travel voucher to be redeemed by December 31, 2021 and October 2, 2021, respectively, the lawsuit says. The suit argues that Spirit's reservation credits and travel vouchers come with accompanying restrictions that make their effective value "far less than their nominal or face value." In the end, the woman was forced to pay more than $1,300 to buy tickets on another airline, the suit says. The other plaintiff in the case claims that although Spirit refunded the purchase price of her August 6 flight, she was nevertheless forced to pay more than $700 for tickets through another carrier to complete her trip. According to the lawsuit, the plaintiffs are among the tens of thousands of consumers left stranded as a result of Spirit's known labor shortage. Who's covered by this lawsuit? The case looks to represent all persons and entities who bought tickets for domestic and international Spirit flights scheduled between July 30 and August 9, 2021 that Spirit canceled because of its labor shortage. Alternatively, the suit looks to cover all Florida residents and entities who fit the same criteria. My Spirit flight was canceled and I was left stranded. Can I join the lawsuit? You typically do not have to do anything to join or be considered part of a class action lawsuit when it's first filed. Generally, it's only if and when a lawsuit settles that those covered by the case, called "class members," will need to act, typically by submitting a claim form online or by mail for their piece of the deal. These individuals will usually receive notice with instructions on how to file a claim for whatever compensation the court deems appropriate. But we're getting ahead of ourselves. Truth is, class action lawsuits generally take some time to work through the legal process, either toward a settlement, dismissal or arbitration outside of court. For now, it's best for consumers to stay informed. [GN] STATE STREET: Faces Edmar Financial Class Suit ---------------------------------------------- State Street Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the company is facing a putative civil class action lawsuit entitled, Edmar Financial Company, LLC et al v. Currenex, Inc. et al. In August 2021, two former Currenex clients filed a putative civil class action lawsuit in the Southern District of New York alleging antitrust violations, fraud and a civil Racketeer Influenced and Corrupt Organization Act violation against Currenex, State Street and others. State Street Corporation, through its subsidiaries, provides a range of financial products and services to institutional investors worldwide. State Street Corporation was founded in 1792 and is headquartered in Boston, Massachusetts. STATE STREET: Gomes Putative Class Action Underway -------------------------------------------------- State Street Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the company continues to defend a purported class action suit entitled, Gomes, et al. v. State Street Corp. Eight participants in the company's Salary Savings Program filed a purported class action complaint in May 2021 on behalf of participants and beneficiaries who participated in the Program and invested in our proprietary investment fund options between May 2015 and the present. The complaint names the Plan Sponsor as well as the committees overseeing the Plan and their respective members as defendants, and alleges breach of fiduciary duty and violations of other duties owed to retirement plan participants under the Employee Retirement Income and Security Act. State Street said, "We and the other named defendants deny the alleged claims and are proceeding with a defense of the matter." No further updates were provided in the Company's SEC report. State Street Corporation, through its subsidiaries, provides a range of financial products and services to institutional investors worldwide. State Street Corporation was founded in 1792 and is headquartered in Boston, Massachusetts. STATE STREET: Settlement Reached in Suit Over Invoicing Practices ----------------------------------------------------------------- State Street Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2021, for the quarterly period ended September 30, 2021, that the company had agreed, subject to court approval, to resolve the purported class action suit related to the company's invoicing practices and pay a cost that is within its established accruals for loss contingencies. In March 2017, a purported class action was commenced against the company alleging that its invoicing practices violated duties owed to retirement plan customers under the Employee Retirement Income Security Act. The company had agreed, subject to court approval, to resolve this matter and pay a cost that is within the company's established accruals for loss contingencies. State Street said, "In addition, we have received a purported class action demand letter alleging that our invoicing practices were unfair and deceptive under Massachusetts law. A class of customers, or particular customers, may assert that we have not paid to them all amounts incorrectly invoiced, and may seek double or treble damages under Massachusetts law." No further updates were provided in the Company's SEC report. State Street Corporation, through its subsidiaries, provides a range of financial products and services to institutional investors worldwide. State Street Corporation was founded in 1792 and is headquartered in Boston, Massachusetts. T-MOBILE USA: $2M Class Settlement in Chetwood Suit Wins Final OK ----------------------------------------------------------------- In the case, KRISTINA CHETWOOD and SANDRA CASTELLON-GONZALEZ, individually, and on behalf of others similarly situated, Plaintiffs v. T-MOBILE USA, INC., Defendant, Case No. 2:19-CV-00458-rsl (W.D. Wash.), Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington, Seattle, grants the Parties' motion for final approval of the class and collective action settlement agreement. T-Mobile agrees to pay in full settlement of the Action and resolution of the claims of the Settlement Class as set forth in the Agreement the total gross amount of $2 million (the "Settlement Amount"). Judge Lasnik has reviewed and considered the motion for final approval of the Settlement submitted by the Parties. The Court preliminarily approved the Parties' Agreement and their proposed resolution of the Plaintiffs' class and collective action claims on behalf of the Class Members. In accordance with the order granting preliminary approval, and in compliance with due process, the Settlement Administrator sent the Court-approved Notice to each of the Settlement Class Members by first-class mail and by email to 270 individuals for whom an updated address could not be determined. The Notice informed the Settlement Class Members of the terms of the Agreement, the right to participate in the Settlement, the right to object to the Agreement, the right to request exclusion and pursue their own remedies, and the right to appear in person or by separate counsel at the Final Settlement Approval Hearing regarding final approval of the Agreement. The motion for final approval seeks final approval of the Agreement and entry of judgment that will bind each Settlement Class Member, and will operate as a full release and discharge of the claims set forth in paragraph 4 of the settlement Agreement. In response to the Court questioning counsel on the record regarding the scope of this release language, the Parties agreed that they interpret the release to extinguish only those claims based on the identical factual predicate as that underlying the claims in the settled class action. Having received and considered the Plaintiffs' motion for preliminary approval of the Settlement, the Plaintiffs' motion for final approval of the settlement Agreement, that there were no meritorious objections to the settlement Agreement, that only 26 out of 7,737 Settlement Class Members opted out of the Agreement, the Plaintiffs' motion for attorneys' fees, the Settlement Administration Costs, and the Incentive Awards for the Named Plaintiffs, the file in the case, and the evidence and argument received by the Court before entering the Preliminary Order and before and at the Final Settlement Approval Hearing, Judge Lasnik finds that (i) the terms of the Agreement are fair, reasonable and adequate, and the standards and applicable requirements for final approval of the class and collective action settlement are satisfied; and (ii) the Agreement has been reached as a result of intensive, serious, and non-collusive, arms-length negotiations and was achieved with the aid of an experienced mediator. The Agreement was entered into in good faith as to each Settlement Class Member. Judge Lasnik appoints the counsel for the Named Plaintiffs as the representatives of, and as the Class Counsel for, the Settlement Class Members for the purpose of entering into and implementing the Agreement. The Settlement Administrator is to execute the distribution of proceeds of the Agreement amount pursuant to the terms of the Agreement. The fees, expenses, and any other costs of Rust Consulting in administering the Agreement, the amount of $37,500, are fair and reasonable. Payment of that amount will be paid out of the gross Agreement amount in accordance with the Agreement, which will fully, finally and completely compensate Rust Consulting, for all fees, expenses and any other costs in administering the Settlement. Based upon application by the Plaintiff's Counsel and the Plaintiffs, Judge Lasnik approves the payment of incentive awards in the amount of $20,000 to the Plaintiffs (named and initial opt-ins) as follows: $5,000 to Kristina Chetwood; $5,000 to Sandra Castellon-Gonzalez; $2,500 to Auriel Calvert; $2,500 to Kerry Selfridge; $1,000 to Paul Rose; $1,000 to Jairo Marquez; $1,000 to Samantha Stephens; $1,000 to Richard Nedbalek; and $1,000 to Briana White (in addition to any recovery they may receive as Settlement Class Members under the Settlement) in recognition of their efforts and the risks they undertook in prosecuting the Action. Based upon application by the Plaintiffs' Counsel, Judge Lasnik approves the payment of attorneys' fees to the Plaintiffs' Counsel in the amount of 30% of the gross Settlement Amount, i.e. $600,000, and litigation costs to the Plaintiffs' Counsel in an amount not to exceed $55,000, to be paid in the manner set forth in the Settlement. No other attorneys or law firms will be entitled to any award of attorneys' fees or costs from Defendant in any way connected with this litigation. After reviewing the sole objection to this settlement, filed by Ms. Reba Littleton, Judge Lasnik has determined that the objection of Reba Littleton does not address the specific claims that are asserted in the case and resolved by the settlement, and thus the objection is denied. The Order will be entered forthwith, dismissing the lawsuit with prejudice. Without affecting the finality of the Order, the Court retains continuing jurisdiction over the Plaintiffs, the Defendant, and the Settlement Class Members as to all matters concerning the administration, consummation, and enforcement of the Settlement Agreement. After settlement administration and distribution of funds have been completed, the Parties will file a report with the Court certifying compliance with the terms of the Agreement and the Order. If the Order is reversed on appeal or the settlement Agreement is terminated or is not consummated for any reason, the foregoing certification of claims on class and collective action bases, the appointment of class representatives, and appointment of class counsel will be void and of no further effect, and the parties will be returned to the status each occupied before entry of the Preliminary Approval Order and the Order without prejudice to any legal argument that any of the parties might have asserted but for the settlement Agreement. A copy of the Agreement is attached to the Order as Exhibit A. A full-text copy of the Court's Oct. 22, 2021 Final Approval Order & Judgment is available at https://tinyurl.com/eeesrhr7 from Leagle.com. TEN BRIDGES: W.D. Washington Narrows Claims in Taie Class Suit -------------------------------------------------------------- In the case, MARY TAIE, et al., Plaintiffs v. TEN BRIDGES LLC, et al., Defendants, Case No. C21-0526-JCC (W.D. Wash.), Judge John C. Coughenour of the U.S. District Court for the Western District of Washington, Seattle, grants in part and denies in part the Defendants' motion to dismiss the Plaintiffs' putative class action complaint. Background Clifford Groves died intestate in 2010, leaving Plaintiffs Mary Taie, Moyra Coop, and William Groves as his only heirs. They inherited their father's home, which was subject to a deed of trust in favor of Bank of America. In 2014, Bank of America filed a foreclosure action in state court against the estate. Bank of America named Taie as a defendant, alongside the "unknown heirs" of Clifford Groves. After a sheriff's sale of the Groves home, surplus foreclosure proceeds of $135,224.51 remained on deposit in the state court registry. Defendant Ten Bridges monitored that lawsuit and, when it learned about the sale, induced Plaintiffs to execute quitclaim deeds selling Ten Bridges their rights to the surplus proceeds for $5,000 each -- pennies on the dollar. Though not a party to the state foreclosure lawsuit, Ten Bridges then filed a motion asking the court to disburse the funds. The state court denied the motion. The state court ordered Ten Bridges to renote its motion and provide notice to the Plaintiffs. Ten Bridges filed a second motion to release the funds, served the Plaintiffs by mail, and the state court granted the motion. The Plaintiffs filed the case as a putative class against Ten Bridges, its principal, Demian Heald, and his marital community. They assert (1) a per se claim under the Washington Consumer Protection Act ("CPA"), (2) a claim for injunctive relief, (3) what is essentially a claim for declaratory judgment that the quitclaim deed is unconscionable, and (4) a claim for unjust enrichment. Before the Court is the Defendants' motion to dismiss the Plaintiffs' putative class action complaint Discussion A. Preclusion The Defendants argue that, under res judicata principles, the state court's order disbursing the surplus funds to Ten Bridges precludes the Plaintiffs' claims. Federal courts follow state law in applying res judicata. The Defendants' motion relies on claim preclusion, which bars relitigating "claims and issues that were litigated or could have been litigated in a prior action." Claim preclusion applies if the first and second lawsuit share the same (1) subject matter, (2) claims, (3) parties, and (4) "the quality of persons for or against whom the claim is made." In addition, "the threshold requirement of claim preclusion is a valid and final judgment on the merits in a prior suit." Judge Coughenour holds that the Defendants cite several cases involving in rem, foreclosure, or probate proceedings. But those cases, he says, either did not involve claim preclusion at all, or the party asserting preclusion was a litigant (or the direct successor or representative of one) in a prior proceeding. None of those labels describe Defendants, so preclusion does not apply. B. Washington Consumer Protection Act ("CPA") Claims The Plaintiffs assert a per se CPA claim based on the Defendants' alleged violation of Wash. Rev. Code Section 63.29.350(1). They assert that, because Ten Bridges kept 88.9% and paid them only 11.1% of the total funds, Ten Bridges violated Wash. Rev. C. Section 63.29.350(1). The Defendants say this theory "is based entirely on a misconstruction" of the statute, but they admit that the Washington Court of Appeals disagrees with them. Judge Coughenour finds that the parties do not dispute whether the Plaintiffs' allegations satisfy the last two Hangman Ridge elements (Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 533 (Wash. 1986)) -- injury to business or property and causation. The Plaintiffs thus sufficiently establish their CPA claims at the pleadings stage. C. Unjust Enrichment Unjust enrichment allows "recovery for the value of the benefit retained absent any contractual relationship because notions of fairness and justice require it." This requires: (1) a benefit conferred upon the defendant by the plaintiff; (2) knowledge by the defendant of the benefit; and (3) the defendant retains the benefit under circumstances that make it inequitable for the defendant to retain the benefit without paying for it. Judge Coughenour holds that the Defendants are right that, as a quasi-contractual remedy, unjust enrichment does not apply where there is "a valid express contract" between the same parties covering the same subject matter. Under Ten Bridges LLC v. Guandai, 474 P.3d 1060 (2020), however, Ten Bridges' agreements with the Plaintiffs are not valid. Unjust enrichment is thus a cognizable theory for seeking to recover the funds that Ten Bridges retains. D. Substantive Unconscionability The Defendants are correct that there is no such thing as an affirmative cause of action for "substantive unconscionability," Judge Coughenour holds, but the Plaintiffs, too, are right that this claim is best understood as seeking declaratory judgment that the quitclaim deeds to Ten Bridges are substantively unconscionable. Like unjust enrichment, their unconscionability "claim" is simply an alternative theory for invalidating the deal with Ten Bridges and recovering the funds at issue. The Plaintiffs' unconscionability "claim," which the Court construes as one for declaratory judgment, will thus be dismissed. E. Personal Liability of Heald and his Marital Community The Defendants assert that the Plaintiffs cannot establish personal liability against Heald or his marital community because Heald acted as Ten Bridges' agent, and the Plaintiffs allege nothing to justify piercing the corporate veil or imposing alter ego liability. The Plaintiffs say they are not trying to disregard Ten Bridges' corporate separateness but rather impose liability for Heald's direct participation in Ten Bridges' wrongful conduct. Judge Coughenour holds that the Plaintiffs are mostly correct on the law: Corporate officers can indeed be liable under the CPA for their own violations even where veil-piercing or alter ego cannot be established. Where they are wrong is in assuming that this means an officer is liable for a corporation's torts. The opposite is true: Corporate officers are liable for their own wrongful acts even if done on behalf of the entity they serve as an agent. This rule applies where corporate officers "either knowingly committed wrongful acts or directed others to do so knowing the wrongful nature of the requested acts." The Plaintiffs' allegations do not establish this. The personal liability claims will be dismissed. Conclusion For the foregoing reasons, Judge Coughenour granted in part and denied in part the Defendants' Motion to Dismiss. He dismissed without prejudice the Plaintiffs' unconscionability claim and their claims asserting personal liability against Demian Heald and his marital community. Within 30 days, the Plaintiffs must file an amended complaint addressing the problems identified. Failure to do so will result in dismissal with prejudice of the claims for which leave to amend has been granted. A full-text copy of the Court's Oct. 20, 2021 Order is available at https://tinyurl.com/pydbr5s from Leagle.com. TESLA INC: Trial in Stockholder Class Suit Set for April 2022 ------------------------------------------------------------- Tesla Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2021, for the quarterly period ended September 30, 2021, that oral argument on summary judgment is set for January 6, 2022 and trial is set for April 2022. On June 4, 2018, a purported Tesla stockholder filed a putative class and derivative action in the Delaware Court of Chancery against Elon Musk and the members of Tesla's board of directors as then constituted, alleging corporate waste, unjust enrichment and that such board members breached their fiduciary duties by approving the stock-based compensation plan awarded to Elon Musk in 2018. The complaint seeks, among other things, monetary damages and rescission or reformation of the stock-based compensation plan. On August 31, 2018, defendants filed a motion to dismiss the complaint; plaintiff filed its opposition brief on November 1, 2018; and defendants filed a reply brief on December 13, 2018. The hearing on the motion to dismiss was held on May 9, 2019. On September 20, 2019, the Court granted the motion to dismiss as to the corporate waste claim but denied the motion as to the breach of fiduciary duty and unjust enrichment claims. Defendants' answer was filed on December 3, 2019. On January 25, 2021, the Court conditionally certified certain claims and a class of Tesla stockholders as a class action. On September 30, 2021, plaintiff filed a motion for leave to file a verified amended derivative complaint. On October 1, 2021, defendants Kimbal Musk and Steve Jurvetson moved for summary judgment as to the claims against them. Following the motion, plaintiff agreed to voluntarily dismiss the claims against Kimbal Musk and Steve Jurvetson. Plaintiff also moved for summary judgment on October 1, 2021. Oral argument on summary judgment is set for January 6, 2022 and trial is set for April 2022. Tesla Inc. designs, manufactures, and sells high-performance electric vehicles and electric vehicle powertrain components. The Company owns its sales and service network and sells electric powertrain components to other automobile manufacturers. Tesla serves customers worldwide. The company is based in Palo Alto, California. TESLA INC: Trial on Twitter Post Related Suit Set for May 2022 -------------------------------------------------------------- Tesla Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2021, for the quarterly period ended September 30, 2021, that trial is set for May 2022, in the consolidated class action suit related to Elon Musk's August 7, 2018 Twitter post that he was considering taking Tesla private. Between August 10, 2018 and September 6, 2018, nine purported stockholder class actions were filed against Tesla and Elon Musk in connection with Mr. Musk's August 7, 2018 Twitter post that he was considering taking Tesla private. All of the suits are now pending in the U.S. District Court for the Northern District of California. Although the complaints vary in certain respects, they each purport to assert claims for violations of federal securities laws related to Mr. Musk's statement and seek unspecified compensatory damages and other relief on behalf of a purported class of purchasers of Tesla's securities. Plaintiffs filed their consolidated complaint on January 16, 2019 and added as defendants the members of Tesla's board of directors. The now-consolidated purported stockholder class action was stayed while the issue of selection of lead counsel was briefed and argued before the Ninth Circuit. The Ninth Circuit ruled regarding lead counsel. Defendants filed a motion to dismiss the complaint on November 22, 2019. The hearing on the motion was held on March 6, 2020. On April 15, 2020, the Court denied defendants' motion to dismiss. The parties stipulated to certification of a class of stockholders, which the court granted on November 25, 2020. Trial is set for May 2022. No further updates were provided in the Company's SEC report. Tesla Inc. designs, manufactures, and sells high-performance electric vehicles and electric vehicle powertrain components. The Company owns its sales and service network and sells electric powertrain components to other automobile manufacturers. Tesla serves customers worldwide. The company is based in Palo Alto, California. TRINET GROUP: 401(k) Plan-Related Class Suit Underway ----------------------------------------------------- TriNet Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2021, for the quarterly period ended September 30, 2021, that the company continues to defend a class action suit related to the TriNet 401(k) Plan and the TriNet Select 401(k) Plan. On September 29, 2020, a class action was filed in the United States District Court for the Middle District of Florida against the directors of certain TriNet subsidiaries and other TriNet employees on behalf of participants in two retirement plans available to TriNet's eligible worksite employees, the TriNet 401(k) Plan and the TriNet Select 401(k) Plan. The complaint is similar to claims recently brought against a number of employers including PEOs and generally alleges that the defendants violated certain fiduciary obligations to Plan participants under the Employee Retirement Income Security Act of 1974 with respect to overseeing plan investment and recordkeeping fees. TriNet said, "These claims are in the early stages, and we are unable to reasonably estimate any possible loss, or range of loss, with respect to this matter. We believe the claims are without merit." TriNet Group, Inc. provides human resources solutions for small and midsize businesses in the United States and Canada. TriNet Group, Inc. was founded in 1988 and is headquartered in Dublin, California. UNITED AIR: Judge Blocks Plan to Put Unvaxxed Employees on Leave ---------------------------------------------------------------- A federal judge sided with United Airlines employees who refuse to be vaccinated, banning the airline from placing those who requested exemptions on unpaid leave. The airline and those employees had agreed last month to avoid unpaid leave, but U.S. District Judge Mark Pittman said that agreement would end before he could rule on the case's merits. He then granted a restraining order, which runs through Oct. 26, for the employees, who are suing United. The plaintiffs, which represent some of the 2,000 employees the airlines said requested exemptions, hope to turn the lawsuit into a class-action case. United has said it plans to work with those who seek exemptions through enhanced COVID-19 safety measures, including testing, or temporary reassignments. The airline's CEO, Scott Kirby, told CBS This Morning that the 232 out of 67,000 employees who have not yet been vaccinated "are going through the termination process now." [GN] UNITED STATES SMALL: Prestige Appeals Loan Denial Suit Dismissal ---------------------------------------------------------------- Plaintiffs Prestige Transportation, Inc., et al., filed an appeal from a court ruling entered in the lawsuit styled PRESTIGE TRANSPORTATION INC., SUPERIOR OVERNIGHT SERVICES INC., AMERILOGISTICS GROUP INC., AND STAM PROPERTIES LLC, on behalf of themselves and all similarly situated persons v. UNITED STATES SMALL BUSINESS ADMINISTRATION, JOVITA CARRANZA AS THE ADMINISTRATOR OF THE SBA, STEVEN MNUCHIN AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF THE TREASURY, AND DOES 1 TO 5, Case No. 2:20-cv-08963, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the case arises from the unlawful and ultra vires policies, practices, and rules implemented by the Defendants to carry out the directive of the CARES Act's Emergency Economic Injury Disaster Loans program to eligible businesses. On March 25, 2020, in response to the economic damage caused by the COVID-19 pandemic, the United States Senate passed the Coronavirus Aid, Relief, and Economic Security Act (the "CARES" Act). Of particular relevance to small businesses, like the Plaintiffs, the CARES Act created two new temporary loan programs, the Paycheck Protection Program ("PPP"), and the Emergency EIDL. The Emergency EIDL program is a separately codified newly created program temporarily expanding the class of eligible entities to which the SBA is authorized and directed to make EIDL loans under Section 7(b)(2) of the SBA Act. According to the complaint, as a direct and proximate cause of COVID-19, the related executive orders, and the economic downturn, Plaintiffs PTI, SOS, AGI, and STAM have suffered significant business losses. The Plaintiffs applied for an EIDL Emergency loan in order to mitigate financial losses and stabilize their businesses in the face of restrictions on imports and the reduction of available cargo for transportation. However, the Small Business Administration's categorical 'immigration status' and 'no amendment' policies have resulted in the Plaintiffs' ineligibility for EIDL loans that the Plaintiffs should have qualified for under the plain text of the CARES Act. As a direct result of SBA's implementation of the said policies, the Plaintiffs and their employees have suffered severe economic injuries and risk financial ruin. Absent a court order, the Plaintiffs will remain unable to obtain the EIDL loans Congress provided for in the CARES Act, the suit says. The Plaintiffs now seek a review of the Court's Order dated July 26, 2021, granting Defendants' motion to dismiss and Court's Order and Judgment dated September 9, 2021, granting Defendants' motion for judgment as a matter of law and dismissing Plaintiffs' claims on the merits with prejudice. The appellate case is captioned as Prestige Transportation, Inc., et al. v. U.S. Small Business Administra, et al., Case No. 21-56129, in the United States Court of Appeals for the Ninth Circuit, filed on Oct. 15. 2021. The briefing schedule in the Appellate Case states that: -- Appellants Amerilogistics Group, Inc., Prestige Transportation, Inc., STAM Properties, LLC and Superior Overnight Services Mediation Questionnaire was due on October 22/2021; -- Appellants Amerilogistics Group, Inc., Prestige Transportation, Inc., STAM Properties, LLC and Superior Overnight Services opening brief is due on December 16, 2021; -- Appellees Jovita Carranza, Does, Steven Terner Mnuchin and U.S. Small Business Administration answering brief is due on January 18, 2022; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants PRESTIGE TRANSPORTATION, INC., SUPERIOR OVERNIGHT SERVICES, AMERILOGISTICS GROUP, INC., and STAM PROPERTIES, LLC, on behalf of themselves and all similarly situated persons, are represented by: Nicolette Glazer, Esq. LAW OFFICES OF LARRY R. GLAZER 1999 Avenue of the Stars #1100 Century City, CA 90067 Telephone: (310) 407-5353 Defendants-Appellees U.S. SMALL BUSINESS ADMINISTRATION; JOVITA CARRANZA, as the Administration of the SBA; and STEVEN TERNER MNUCHIN, as the Secretary of the United States Department of the Treasury, are represented by: Timothy Biche, Esq. USLA - OFFICE OF THE U.S. ATTORNEY 300 N Los Angeles Street Los Angeles, CA 90012 UNITED STATES: 9th Cir. Flips Prelim. Injunction in Fraihat v. ICE ------------------------------------------------------------------ In the case, FAOUR ABDALLAH FRAIHAT; MARCO MONTOYA AMAYA; RAUL ALCOCER CHAVEZ; JOSE SEGOVIA BENITEZ; HAMIDA ALI; MELVIN MURILLO JIMMY SUDNEY; JOSE BACA HERNANDEZ; EDILBERTO GARCIA GUERRERO; MARTIN MUNOZ; LUIS MANUEL RODRIGUEZ DELGADILLO; RUBEN DARIO MENCIAS SOTO; ALEX HERNANDEZ; ARISTOTELES SANCHEZ MARTINEZ; SERGIO SALAZAR ARTAGA; INLAND COALITION FOR IMMIGRANT JUSTICE; AL OTRO LADO, Plaintiffs-Appellees v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. DEPARTMENT OF HOMELAND SECURITY; ALEJANDRO MAYORKAS; TAE D. JOHNSON; STEVE K. FRANCIS; COREY A. PRICE; PATRICK J. LECHLEITNER; STEWART D. SMITH; JACKI BECKER KLOPP; DAVID P. PEKOSKE, Defendants-Appellants, Case No. 20-55634 (9th Cir.), Judge Daniel A. Bress of the U.S. Court of Appeals for the Ninth Circuit reverses the district court's preliminary injunction order and directs that all orders premised on it be vacated. Background In March 2020, toward the beginning of the COVID-19 pandemic, the Plaintiffs in the case sought a preliminary injunction that would effectively place the country's network of immigration detention facilities under the direction of a single federal district court. The named Plaintiffs were five detainees housed at three detention centers. But the Plaintiffs made allegations and requested preliminary injunctive relief that far transcended their individual circumstances. They contended that as to all of the approximately 250 immigration detention facilities nationwide, U.S. Immigration and Customs Enforcement's (ICE) directives in response to the COVID-19 pandemic reflected "deliberate indifference" to medical needs and "reckless disregard" of known health risks, in violation of the Fifth Amendment. The district court agreed with the Plaintiffs. In April 2020, it certified two nationwide classes and issued a preliminary injunction that applied to all immigration detention facilities in the United States. The injunction imposed a broad range of obligations on the federal government, including ordering ICE to identify and track detainees with certain risk factors that the district court identified; requiring ICE to issue a comprehensive Performance Standard covering a myriad of COVID-19-related topics, such as social distancing and cleaning policies; and setting directives for releasing detainees from custody altogether. Several months later, the district court issued a further order imposing more detailed requirements, such as twice-daily temperature checks, as well as procedures expressly designed to result in the release of substantial numbers of detainees from ICE custody. The government has now appealed the preliminary injunction. Discussion The government argues on appeal that the district court erred both in issuing a preliminary injunction and in granting provisional class certification. The Ninth Circuit holds that the preliminary injunction must be set aside because the Plaintiffs have not demonstrated a likelihood of success on the merits of their claims. Its holding is a function of the sweeping relief the Plaintiffs sought and the demanding legal standards that governed their request. The Plaintiffs did not seek individualized injunctive relief. Nor did they seek relief specific to the conditions at the detention centers in which they were housed. They instead challenged ICE's nationwide COVID-19 directives, asking a district court mid-pandemic to assume control over the top-level policies governing ICE's efforts to combat the viral outbreak. To obtain the extraordinary relief they sought, the Plaintiffs needed to come forward with evidence of constitutional and statutory violations on a programmatic, nationwide level. The Plaintiffs did not do so. Like many aspects of government that were potentially unprepared for a highly contagious airborne virus, ICE's initial response to the COVID-19 pandemic may have been imperfect, even at times inadequate. But the slew of national guidance, directives, and mandatory requirements that the agency issued and then frequently updated in the spring of 2020 belies the notion that ICE acted with the "reckless disregard" necessary to support a finding of unconstitutional, system-wide deliberate indifference. ICE's nationwide policies included instructions on sanitation, hygiene, and social distancing; treatment of detainees who may have been exposed to the virus; which programs and activities to suspend; and when to release detainees from custody because of their vulnerabilities to viral infection. Like all parts of our government, ICE took actions in the face of scientific uncertainty and a constantly developing understanding of COVID-19. Whatever shortcomings could be discerned in ICE's mandates in the spring of 2020, the Ninth Circuit finds that the Plaintiffs have not shown that ICE acted with deliberate indifference in issuing extensive nationwide directives that sought to mitigate the very health risks that the Plaintiffs claim ICE recklessly disregarded. The district court therefore erred in entering a preliminary injunction and in assuming the authority to dictate, at both a macro and a granular level, ICE's national response to the COVID-19 pandemic. The Ninth Circuit appreciates the Plaintiffs' and the district court's concerns about the public health consequences of COVID-19 and the importance of protecting immigration detainees from harmful viral exposure. It of course shares those concerns. The Plaintiffs have identified COVID-19 infections among immigration detainees and have raised potentially valid questions about conditions at individual detention facilities, which other cases have likewise identified. The Ninth Circuit thus does not minimize the dangers that COVID-19 presents and the unique risks it imposes for persons in custody. The government does not deny those risks, nor does it seek to absolve itself of responsibility for ensuring the safety of those whom it detains. But the question is not whether COVID-19 poses health risks to detainees generally or even the individual plaintiffs in the case, the Ninth Circuit notes. It says, while a preliminary injunction is always an extraordinary remedy, the relief sought was extraordinary beyond measure. Based on claimed deficiencies in ICE's national directives, the Plaintiffs sought a sweeping injunction that would and did place the district court in charge of setting the COVID-19 policies that apply to every immigration detention facility in the United States—for which the Executive Branch bears primary authority. As ICE was in the middle of confronting an unprecedented and evolving public health problem, it found its nationwide policies almost immediately subject to judicial revision. Neither the facts nor the law supported a judicial intervention of that magnitude. The standards that governed the Plaintiffs' request reflected not only the all-embracing relief they sought but the core principle, grounded in the separation of powers, that far-reaching intrusion into matters initially committed to a coordinate Branch requires a commensurately high showing sufficient to warrant such a significant exercise of judicial power. The Plaintiffs did not make the showing required to justify the extraordinary relief they requested. Conclusion The Ninth Circuit concludes that COVID-19 presents inherent challenges in institutional settings, and it has without question imposed greater risks on persons in custody. But the Plaintiffs had to demonstrate considerably more than that to warrant the extraordinary, system-wide relief that they sought. The demanding legal standards that govern the Plaintiffs' request reflect the separation of powers implications underlying any effort to place presumptively Executive responsibilities in judicial hands. That COVID-19 is an unprecedented public health issue could not thereby sustain a preliminary injunction that, without sufficient basis, effectively placed a federal court at the center of the Executive's nationwide effort safely to manage immigration detention facilities in the middle of an evolving pandemic. For these reasons and those that it explains, the Ninth Circuit reverses the preliminary injunction and directs that all orders premised on it be vacated. A full-text copy of the Court's Oct. 20, 2021 Opinion is available at https://tinyurl.com/4p35dvt5 from Leagle.com. Scott G. Stewart (argued), Deputy Assistant Attorney General; Anna L. Dichter and Lindsay M. Vick, Attorneys; William K. Lane III, Counsel; Christopher A. Bates, Senior Counsel; Jeffrey S. Robins, Deputy Director; William C. Peachey, Director; Ethan P. Davis, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, in Washington, D.C.; for Defendants-Appellants. Brian P. Goldman (argued), William F. Alderman -- walderman@orrick.com -- Mark Mermelstein -- mmermelstein@orrick.com -- and Jake Routhier , Orrick Herrington & Sutcliffe LLP, in San Francisco, California; Matthew R. Shahabian and Melanie R. Hallums, Orrick Herrington & Sutcliffe LLP, in New York City; Katherine M. Kopp, Orrick Herrington & Sutcliffe LLP, in Washington, D.C.; Timothy P. Fox -- tfox@creeclaw.org -- and Elizabeth Jordan -- ejordan@creeclaw.org -- Civil Rights Education and Enforcement Center, Denver, Colorado; Jared Davidson, Southern Poverty Law Center, New Orleans, Louisiana; Stuart Seaborn -- sseaborn@dralegal.org -- Melissa Riess -- mriess@dralegal.org -- and Rosa Lee Bichell, Disability Rights Advocates, in Berkeley, California; Maria del Pilar Gonzalez Morales, Civil Rights Education and Enforcement Center, in Los Angeles, California; Shalini Goel Agarwal -- shalini.agarwal@splcenter.org -- Southern Poverty Law Center, Tallahassee, Florida; Christina Brandt-Young, Disability Rights Advocates, in New York City; Michael W. Johnson, Dania Bardavid, Jessica Blanton, and Joseph Bretschneider, Willkie Farr & Gallagher LLP, New York, New York; Leigh Coutoumanos, Willkie Farr & Gallagher LLP, in Washington, D.C.; Veronica Salama, Southern Poverty Law Center, in Decatur, Georgia; for Plaintiffs-Appellees. Stephen J. McIntyre -- smcintyre@omm.com -- Marissa Roy, and Kevin Kraft, O'Melveny & Myers LLP, in Los Angeles, California; Lisa B. Pensabene, O'Melveny & Myers LLP, in New York City; for Amici Curiae Casa de Paz, Church World Service-Jersey City, Clergy & Laity United for Economic Justice, Detention Watch Network, El Refugio, and Freedom for Immigrants. Clifford W. Berlow -- cberlow@jenner.com -- Michele L. Slachetka, Jonathan A. Enfield, E.K. McWilliams, and Reanne Zheng, Jenner & Block LLP, in Chicago, Illinois, for Amici Curiae Public Health Experts. UNITED STATES: Seeks 9th Cir. Review in Roman Habeas Corpus Suit ---------------------------------------------------------------- Defendants Alejandro Mayorkas, et al., filed an appeal from a court ruling in the lawsuit entitled Kelvin Hernandez Roman, et al. v. Chad Wolf, et al., Case No. 5:20-cv-00768-TJH-PVC, in the U.S. District Court for the Central District of California, Riverside. Chad F. Wolf was the former Secretary of Homeland Security and Under Secretary of Homeland Security for Strategy, Policy, and Plans. He was replaced by Alejandro Mayorkas, the seventh United States Secretary of Homeland Security since February 2, 2021. As previously reported in the Class Action Reporter, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's preliminary injunction order in part, vacated it in part, and remanded so that the district court may immediately address current circumstances at the Adelanto Immigration and Customs Enforcement Processing Center. The Plaintiffs brought the class action on behalf of noncitizens detained at Adelanto. These noncitizens are being held in civil detention in connection with various immigration proceedings, and many of them have no criminal record. The Plaintiffs sought declaratory and injunctive relief, as well as habeas relief. Their Complaint alleges that, in light of the COVID-19 pandemic, Adelanto's failure to implement necessary protective measures violates detainees' due process rights under the Fifth Amendment. The Defendants now seek a review of the Court's Order dated August 11, 2021, wherein the government was ordered to report to the Special Master and Plaintiffs/Petitioners' counsel any time a detainee at Adelanto who has previously tested positive for COVID was confined to the infirmary, brought to the hospital, or dies of any cause. Further, upon request from the Special Master, the government was ordered to submit the detainee's medical records to the Special Master and Plaintiff/Petitioner's counsel for review. The government was also ordered to pay intervenor Martin Vargas' immigration lawyer Ms. Margaret Hellerstein's fees from March 5, 2021 when the government released Mr. Vargas without telling her, until March 18, 2021 when she found out from the coroner the Mr. Vargas had died 10 days earlier. The appellate case is captioned as Kelvin Hernandez Roman, et al. v. Alejandro Mayorkas, et al., Case No. 21-56128, in the United States Court of Appeals for the Ninth Circuit, filed on Oct. 14, 2021. The briefing schedule in the Appellate Case states that: -- Transcript shall be ordered by November 15, 2021; -- Transcript is due on December 15, 2021; -- Appellants James Janecka, Tae Johnson, Alejandro N. Mayorkas, Ernest M. Santacruz Jr. and U.S. Immigration and Customs Enforcement opening brief is due on January 20, 2022; -- Appellees Miguel Aguilar Estrada, Beatriz Andrea Forero Chavez and Kelvin Hernandez Roman answering brief is due on February 22, 2022; and -- Appellant's optional reply brief is due 21 days after service of the answering brief. [BN] Respondents-Appellants ALEJANDRO N. MAYORKAS, Secretary, U.S. Department of Homeland Security; TAE JOHNSON, Acting Director, U.S. Immigration and Customs Enforcement; ERNEST M. SANTACRUZ, Jr., Acting Director of the Los Angeles Field Office, Enforcement and Removal Operations; and U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; JAMES JANECKA, Warden, Adelanto ICE Processing Center, are represented by: Hans Harris Chen, Esq. Victor Manuel Mercado-Santana, Esq. DOJ - U.S. DEPARTMENT OF JUSTICE P.O. Box 868 Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7001 E-mail: victor.m.mercado-santana@usdoj.gov Petitioners-Appellees KELVIN HERNANDEZ ROMAN, BEATRIZ ANDREA FORERO CHAVEZ, and MIGUEL AGUILAR ESTRADA, on behalf of themselves and all others similarly situated, are represented by: Jessica Karp Bansal, Esq. Michael Kaufman, Esq. ACLU of Southern California 1313 W 8th Street Los Angeles, CA 90017 Telephone: (909) 380-7501 E-mail: jbansal@aclusocal.org mkaufman@aclusocal.org - and - Samir Deger-Sen, Esq. LATHAM & WATKINS LLP 1271 Avenue of the Americas New York, NY 10020 Telephone: (212) 906-1200 E-mail: samir.deger-sen@lw.com - and - William M. Friedman, Esq. Margaret Allison Upshaw, Esq. LATHAM & WATKINS, LLP 555 11th Street, NW, Suite 1000 Washington, DC 20004-1304 Telephone: (202) 637-2159 E-mail: william.friedman@lw.com UNIVERSITY OF TAMPA: Court Narrows Claims in D'Amario Class Suit ---------------------------------------------------------------- In the case, TONI FIORE, JADE D'AMARIO, SEAN DUNN, and JOSHUA DUNN on behalf of themselves and all others similarly situated, Plaintiffs v. THE UNIVERSITY OF TAMPA, Defendant, Case No. 20-CV-3744 (CS) (S.D.N.Y.), Judge Cathy Seibel of the U.S. District Court for the Southern District of New York granted in part and denied in part the Defendant's motion to dismiss the Plaintiffs' amended complaint. Background The case concerns the transition from in-person to remote instruction at the University of Tampa ("UT") during the spring 2020 academic semester in response to the COVID-19 pandemic. Plaintiffs Jade D'Amario of New York and Joshua Dunn of Connecticut ("Student Plaintiffs") were enrolled as full-time undergraduate students at UT during the spring 2020 semester. Plaintiffs Toni Fiore of New York and Sean Dunn of Connecticut ("Parent Plaintiffs") are parents of full-time undergraduate students who were enrolled at UT during the spring 2020 semester. Defendant UT is a private university located in Tampa, Florida. Undergraduate tuition at UT for the spring 2020 semester was approximately $14,401, and full-time undergraduate students were charged mandatory fees of approximately $2082. Parent Plaintiffs Fiore and Dunn paid UT approximately $11,205 and $12,500, respectively, for tuition, fees, meals, and housing on behalf of their respective children for the spring 2020 semester, and Student Plaintiffs D'Amario and Dunn paid UT approximately $8,000 and $7,000, respectively, in tuition, fees, meals, and housing for the spring 2020 semester. The fees paid by Student Plaintiffs included a "mandatory Student Service Fee," which "provides support for a number of student services, programs and activities," as well as a "mandatory Student Government Fee," which "provides basic support to student government, student productions, publications and other student-sponsored organizations." None of the named Plaintiffs have received a refund of tuition or mandatory fees for the spring 2020 semester. Before paying tuition or registering for classes for the spring 2020 semester, the Student Plaintiffs each consulted the Defendant's online Course Catalog and its online Course Schedule Search and Registration tool. The Course Catalog, which detailed every course offered, only mentioned online instruction for two courses and had a search function that allowed students to search by "Method," with options including "General Classroom," "Hybrid," "Independent Study," "Internship," and "Online." UT's Course Schedule Search listed the "Delivery Mode" as "In-Person" for each of the courses for which the Student Plaintiffs registered for the spring 2020 semester. They also received course schedules and course-specific syllabi listing the on-campus building and room where each course was to be held. They allege that they registered for classes and paid tuition with the understanding -- based on representations in some of these materials -- that their courses would be taught in-person. UT's spring semester ran from Jan. 21, 2020 through May 8, 2020. The last academic day before the school's Spring Break was March 6, 2020. During Spring Break, on March 11, 2020, UT announced that all classes would move to online and remote instruction in response to the COVID-19 pandemic. On March 17, 2020, UT announced that the rest of the spring semester would be remote, with courses conducted online. Plaintiff Fiore filed suit on May 14, 2020,1 bringing claims on behalf of herself and a class of similarly situated persons for breach of contract (Count I), unjust enrichment (Count II), and conversion (Count III), seeking a pro-rated return of tuition and fees paid for the spring 2020 semester. The Defendant requested a pre-motion conference on July 31, and on August 26, the Court held the pre-motion conference and granted the Plaintiff leave to amend the complaint. The Plaintiffs amended their complaint on Sept. 15, 2020, and the instant motion followed. The Defendant moves to dismiss the claims of the Parent Plaintiffs for lack of standing under Rule 12(b)(1), and all claims for failure to state a claim on which relief can be granted under Rule 12(b)(6). Between December 2020 and March 2021, the parties made several supplemental submissions regarding COVID-19 tuition cases decided after briefing was complete. On July 16, 2021, the Defendant requested that the Court re-open briefing so that the parties could address Florida Statute Section 768.39 ("Florida Statute" or "Statute"), which was signed into law on June 29, 2021. Before the Court is the Defendant's motion to dismiss the Amended Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Defendant argues the Florida Statute immunizes it against the Plaintiffs' claims and is grounds for dismissal of the case. The Court granted the request, and the parties submitted supplemental briefs. The Plaintiffs' supplemental opposition challenges the constitutionality of the Florida Statute under the United States and Florida Constitutions. The Plaintiffs provided notice of the constitutional challenge to the Attorney General of the State of Florida, as required under Federal Rule of Civil Procedure 5.1(a). The Court certified the constitutional challenge to the same official as required under 28 U.S.C. Section 2403(b) and Federal Rule of Civil Procedure 5.1(b). More than 60 days have passed since the Plaintiffs filed notice of the constitutional challenge, and the Florida Attorney General has not intervened. Discussion A. Florida Statute Section 768.39 As a threshold matter, Judge Seibel considers the effect of the Florida Statute, which became law while the Defendant's motion was pending. She first assesses whether (and to what extent) the relevant provisions apply retroactively. For a statute to apply retroactively under Florida law, she must determine first "whether there is clear evidence of legislative intent to apply the statute retrospectively." "If the legislation clearly expresses an intent that it apply retroactively, then the second inquiry is whether retroactive application is constitutionally permissible." Judge Seibel finds that it is clear that the legislature intended the statute to apply retroactively, with no carve-out for already commenced cases, and she turns to the second inquiry under Florida law: "Whether retroactive application is constitutionally permissible." Because the Florida Statute would violate due process by impairing the Plaintiffs' vested rights in their causes of action, Judge Seibel opines that its retroactive application is impermissible and the Statute cannot constitutionally be applied in the case to bar the Plaintiffs' claims. Thus, she turns to the Defendant's motion to dismiss for lack of standing and failure to state a claim. B. Standing The Defendant moves to dismiss the Parent Plaintiffs' claims under Rule 12(b)(1) for lack of standing. There are three constitutional standing requirements that every plaintiff must satisfy in order to invoke the jurisdiction of the federal courts: (1) "an injury in fact (i.e., a concrete and particularized invasion of a legally protected interest)"; (2) "causation (i.e., a fairly traceable connection between the alleged injury in fact and the alleged conduct of the defendant)"; and (3) "redressability (i.e., it is likely and not merely speculative that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit)." The party invoking federal jurisdiction bears the burden of establishing that it has standing to do so. The Parent Plaintiffs allege that on behalf of their children, they paid Defendant approximately $11,205 and $12,500, respectively, for tuition, fees, meals, and housing for the spring 2020 semester. The Defendant argues that the Parent Plaintiffs were not party to any contractual agreement with UT, nor were they entitled to any of the benefits (such as education or services) that were the subject of the relationship between the majority-age Student Plaintiffs and UT. Judge Seibel opines that the Parent Plaintiffs do not have standing to pursue their claims. She says, as in other COVID-19 tuition cases where courts have found that parents do not have standing, the Plaintiffs allege no direct contractual relationship between UT and the Parent Plaintiffs. The alleged contractual relationship was strictly between the students and UT, and the benefits of the promises that Plaintiffs allege were breached are exclusively benefits that would flow to the students, not their parents. The Parent Plaintiffs' involvement, as alleged in the Amended Complaint, begins and ends with the payment of tuition. But the payment of tuition alone "does not create a contractual relationship between parents and a college." Absent a direct contractual relationship, the fact that the Parent Plaintiffs paid tuition is insufficient unless the Plaintiffs also plausibly allege that the Parent Plaintiffs were intended third party beneficiaries of the contracts between the Defendant and the Student Plaintiffs. But this is plainly not the case; the sole beneficiaries of these contractual relationships -- i.e., the recipients of the education and services for which the parties contracted -- are the students. The Plaintiffs argue that the parents' injuries were the "economic loss" caused by the Defendant's change in instruction format. But the "economic loss" to the parents in these cases is "traceable to the arrangement" between parent and child that the parent is to pay tuition, not to any relationship between university and parent. Judge Seibel finds these cases persuasive and concludes that the Parent Plaintiffs do not have standing to pursue their claims. For these reasons, Judge Seibel granted the Defendant's motion with respect to the standing of the Parent Plaintiffs. C. Breach of Contract The Plaintiffs allege that they agreed to pay tuition and fees to Defendant in exchange for the Defendant's promise to provide in-person educational and other related services, and that the terms of this agreement were set forth in, among other places, publications that include the Defendant's Spring Semester 2020 Course Catalog, Course Schedule Search tool, course-specific syllabi, and class schedules. The Plaintiffs allege that Defendant materially breached the contractual agreement by failing to provide in-person educational services and that such failure resulted in damages to the Plaintiffs. They also allege that they paid certain fees to the Defendant and that the Defendant failed to provide promised services in exchange. Judge Seibel opines that (i) the allegations of an implied contract that include specific references to university publications are "more than sufficient to survive a motion to dismiss"; (ii) at this early stage and on the limited record, it is plausibly not the entirety of the parties' agreement such that it prohibits consideration of promises contained in university catalogs, handbooks, and university policies and procedures; (iii) the Plaintiffs have pleaded that they would not have paid as much in tuition and fees had they known that their classes would not be in person, which plausibly supports their allegation that the Defendant's breach was material; (iv) the Plaintiffs point to objective metrics on which they base statements about the value of in-person as opposed to online education; and (v) the Defendant at this stage has not established ratification. For the stated reasons, Judge Seibel denied the Defendant's motion to dismiss with respect to the Plaintiffs' tuition-based breach of contract claims. Judge Seibel also opines that the Plaintiffs have failed to allege with adequate specificity that fees intended to support certain programs were tied to access to on-campus facilities or in-person activities and were not used for such purposes. The Plaintiffs have only shown that fees were supposed to support student services and student activities, and they have not alleged that such programs were not supported. The Defendant's motion is therefore granted with respect to the Plaintiffs' fee-based breach of contract claims, but with leave to amend. D. Unjust Enrichment The Defendant's first argument with respect to the Plaintiffs' unjust enrichment claim is that the claim may not be pleaded in the alternative, in the case because the allegations incorporated into the Plaintiffs' claim allege that there is a contract governing the matter and thus a legal remedy. The Defendant points out that the Plaintiffs agree that the nature of their relationship with the Defendant is contractual, that the nature of the relationship between a student and a university is contractual under Florida law, and that the Plaintiffs have not pleaded the lack of an adequate remedy at law. Judge Seibel granted the Defendant's motion to dismiss with respect to fee-based unjust enrichment claims, but with leave to amend. She finds that (i) the Plaintiffs' allegations of a contract for in-person educational services are not equivalent to the undisputed existence of such a contract; (ii) the Plaintiffs have not plausibly alleged circumstances such that it would be inequitable for Defendant to retain the tuition monies; (iii) the Plaintiffs have only alleged that the fees were meant to support programs that the Defendant offered and absent nonconclusory allegations that the fees did not go toward their intended purpose, the Plaintiffs have not adequately pleaded circumstances in which it would be inequitable for Defendant to retain such fees. E. Conversion The Plaintiffs' Amended Complaint suggests that the property in question is their "ownership right to the in-person educational services they were supposed to be provided in exchange for their Spring Semester 2020 tuition and fee payments to the Defendant." Judge Seibel opines that this attempt to plead around the requirement that the subject of the conversion be property is undermined by the fact that the Plaintiffs go on to allege that the "Defendant's retention of the fees paid by the Plaintiffs deprived them of the benefits for which the tuition and fees paid," and ask for the return of a pro-rated portion of the semester's tuition. It is plain that the property of which the Plaintiffs claim to have been deprived is the money they paid for an in-person education, not the in-person education itself. Indeed, it is hard to see how Defendant exercised dominion over the education. Accordingly, this claim fails. The Plaintiffs argue that they fall under an "exception" to the general rule that a monetary obligation cannot form the basis for a conversion action, Bel-Bel Int'l Corp., 162 F.3d at 1109, because their demand for a pro-rated portion of tuition money is a "fund capable of separate identification." This exception refers to a property right in money that is separately identifiable in the sense that a particular source for it was specified. In Bel-Bel Int'l Corp., for example, the property at issue was the receivables from the sale of certain tomato crops which had been pledged as security for a loan. The Plaintiffs' claim that this exception applies is conclusory and fails to engage with the nature of the exception discussed in Bel-Bel. The Plaintiffs do not seek to recover a pro-rated share of the specific funds they paid for the spring 2020 semester, nor would those funds be separately identifiable. Hence, the Defendant's motion to dismiss the conversion claims is granted. F. Leave to Amend Judge Seibel holds that the Plaintiffs have already had a chance to amend, after the Defendant's pre-motion letter gave notice of the grounds for the intended motion, and in general a plaintiff's failure to fix deficiencies in the previous pleading, after being provided notice of them, is alone sufficient ground to deny leave to amend. But the grounds set forth in the pre-motion letter, and the discussion at the pre-motion conference, did not differentiate between the Plaintiffs' payment of tuition and of fees, and that distinction turns out to be consequential. Accordingly, in her discretion, Judge Seibel will permit the Plaintiffs to amend their allegations as to the student fees only, if they can do so in good faith. Should the Plaintiffs wish to do so, the Second Amended Complaint ("SAC") will be filed no later than Nov. 3, 2021, and the Defendant will respond in the ordinary course. If the Plaintiffs do not file a SAC by that date, the Defendant will answer the AC no later than Nov. 17, 2021. Conclusion For the foregoing reasons, Judge Seibel granted the Defendant's motion to dismiss with respect to the standing of the Parent Plaintiffs, the Plaintiffs' fee-based breach of contract claim, the Plaintiffs' fee-based unjust enrichment claim, and the Plaintiffs' conversion claim, and denied with respect to the Plaintiffs' tuition-based breach of contract claim and the Plaintiffs' tuition-based unjust enrichment claim. The Clerk of Court is respectfully directed to terminate the pending motion. A full-text copy of the Court's Oct. 20, 2021 Opinion & Order is available at https://tinyurl.com/dnd8whu8 from Leagle.com. Philip L. Fraietta -- pfraietta@bursor.co -- Alec M. Leslie -- aleslie@bursor.com -- Bursor & Fisher, P.A., New York, New York, Sarah N. Westcot -- swestcot@bursor.com -- Bursor & Fisher, P.A., in Miami, Florida, Counsel for the Plaintiffs. Jonathan M. Kozak -- Jonathan.Kozak@jacksonlewis.com -- Jackson Lewis P.C., White Plains, New York, Felice B. Ekelman -- Felice.Ekelman@jacksonlewis.com -- Ryan C. Chapoteau -- Ryan.Chapoteau@jacksonlewis.com -- Jackson Lewis P.C., in New York City, Counsel for the Defendant. WALMART INC: Former Pharmacist Awarded $27MM in Class Action ------------------------------------------------------------ Dustin Manduffie, writing for Courthouse News Service, reports that a federal judge on Oct. 20 awarded a former Walmart pharmacist with $27 million in total damages, agreeing that the retail giant wrongfully fired the employee after she complained they were violating Medicare laws. Former Walmart pharmacist Afrouz Nikmanesh said Walmart failed to report necessary data to the Controlled Substance Utilization Review and Evaluation System, otherwise known as the CURES program, a database of controlled substance prescriptions dispensed throughout California, which requires pharmacists to file weekly reports with the California Department of Justice. She reported these violations to her supervisors sometime between July 2013 and September 2014 and asked that they investigate and correct the various compliance issues. Walmart responded by firing Nikmanesh in September 2014, which she claims was solely in retaliation for her complaining about their non-compliance with state laws. Walmart committed numerous pharmacy violations and instances of noncompliance with state law, according to the plaintiff, including charging Medicare beneficiaries above the Medi-Cal reimbursement rate for prescriptions and failing to provide eligible patients with a Medicare discount. "The Jury of 8 unanimously found that Ms. Nikmanesh's reporting of Walmart's overcharging Medicare customers over the age of 65 and persons under the age of 65 with disabilities for their medications and not properly reporting the dispensement of controlled substances to the Department of Justice under the Controlled Substance Utilization Review and Evaluation System program was a substantial motivating reason for Walmart's decision to retaliate against and discharge her," said Dayton B. Parcells III, lead attorney for the plaintiff. Judge Jesus G. Bernal with the Central District of California issued the judgment on Oct. 20. The ruling includes $40,000 for economic losses; $100,000 for non-economic losses; $60,000 for future non-economic losses; and $27.3 million in punitive damages. Representatives for Walmart were not immediately available for comment. In an underlying class action lawsuit brought by Nikmanesh and three other pharamacists, they claimed they were denied overtime wages along with meal and rest breaks and given inaccurate wage statements that didn't account for the hours they actually spent working. They claimed Walmart enacted a policy prohibiting its pharmacists from leaving the pharmacy unattended, saying this made it impossible for them to take their legally mandated meal and rest breaks. Because of a shortage of pharmacists who could cover for them, they said they were effectively forced to work throughout their shifts without pause. The plaintiffs also claimed Walmart told them to obtain their immunization certifications, which would allow them to provide on-site immunizations to pharmacy patients, but refused to compensate them for the time they spent studying and preparing for the exam. They said that getting the certification increased their workload several times over, but Walmart refused to provide additional staffing to meet the increased demand. The pharmacists ultimately reached a settlement with Walmart on these training course claims. "In most surveys, pharmacists rank as the 2nd most trusted professionals in America. However, can you really trust an overworked pharmacist that is deprived the opportunity to take a break to recharge before attending to patients' needs, multiple doctor's offices, and insurance companies, all while trying to stay within compliance of pharmacy laws and regulations?" asked Nikmanesh in a piece she published in 2015 about the case. [GN] WSP2 LLC: $13K in Attys.' Fees & Costs Awarded in Rorie FLSA Suit ----------------------------------------------------------------- In the case, SAMUEL RORIE, JUSTIN BAKER, LESLIE NOLL, BLAKE MASTERSON And BRADFORD KEYS, Plaintiffs v. WSP2, LLC and JOSEPH CLAYTON SUTTLE, Defendants, Civil No. 20-5106 (W.D. Ark.), Magistrate Judge Christy Comstock of the U.S. District Court for the Western District of Arkansas, Fayetteville Division, grants the Plaintiff's Motion for Costs and Attorney's Fees, and awards costs in the amount of $845 and attorneys' fees in the amount of $12,367.50. Background The Plaintiffs filed a Complaint pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 201, et seq., and the Arkansas Minimum Wage Act ("AMWA"), Ark. Code Ann. Section 11-4-201, et seq. On Oct. 15, 2021, the parties executed a written settlement agreement after participating in a successful settlement conference with the undersigned and consenting to the Court's jurisdiction. The settlement agreement resolved all the Plaintiffs' claims and was approved by the Court on Oct. 20, 2021. The Plaintiffs' Motion for Costs and Attorneys' Fees was filed by the Sanford Law Firm (SLF) on Sept. 20, 2021. According to the Motion, the Plaintiffs incurred $31,019 in attorneys' fees between June 12, 2020, and Sept. 19, 2021, but voluntarily reduced their attorneys' fees request to $23,768. The Plaintiffs additionally seek to recover $936.50 in costs. The Defendants filed their response and objections on Oct. 5, 2021, arguing that the requested fees are unreasonable, and the Plaintiffs replied on Oct. 11, 2021. Analysis The parties do not dispute that the Plaintiffs prevailed in the case pursuant to their negotiated settlement and are therefore entitled to reasonable attorneys' fees and costs; the only question is whether the amounts claimed by SLF are reasonable. Judge Comstock first turns to a calculation of the lodestar by determining a reasonable hourly rate for the counsel and identifying a reasonable number of hours expended on the Plaintiffs' behalf. A. Reasonable Hourly Rates SLF requests various hourly rates for the multiple (9 of the 16) timekeepers who worked on the Plaintiffs' matters: $383 an hour (Josh Sanford); $300 (Anna Stiritz, Vanessa Kinney); $285 (Josh West, Lydia Hamlet, Steve Rauls); $250 (Rebecca Matlock, Sean Short, Stacy Gibson); $230 (April Rheaume); $210 (Courtney Lowery); $200 (Daniel Ford); $175 (Blake Hoyt) and $100, $75, and $60, respectively, for paralegals, law clerks and staff. SLF says these hourly rates (reflecting, after reduction, a "blended rate of $212.21") "are reasonable and below the national average for complex litigation" and that SLF's "attorneys' focus on labor and employment law justifies an upward deviation from the average rate charged." SLF then says that because both Mr. Sanford and Mr. Ford voluntarily reduced their billable hours, "the Court should not entertain reducing the hourly rates." Although multiple timekeepers performed work, the Plaintiffs' Motion seeks fees for only Sanford, Lowery, Ford, Matlock, Rauls, Kinney, (1) paralegal, (1) law clerk and "staff." The Defendant objects to these rates as unreasonable, pointing to numerous Eastern and Western District of Arkansas court decisions addressing SLF rates, and observing that SLF's requested rates continue to inflate. Consistent with courts recently addressing hourly rates for FLSA actions, Judge Comstock finds the reasonable hourly rates for FLSA work performed are $250 for senior attorneys (Sanford), $175 for the senior associates (Kinney, Rauls, and Ford), $150 for the junior associates (Lowery), $125 for Ms. Matlock, $100 for paralegals and $25 for law clerks. B. Reasonable Number of Hours Worked The Plaintiffs provided itemized billing records for 144.60 hours but after SLF's voluntary reductions, seek compensation for 112 hours expended by the SLF legal team. The Defendants object to these hours as unreasonable on several grounds. A court has discretion to determine the number of hours to be awarded when conducting the "lodestar" calculation. In exercising this discretion, the court "should weigh the hours claimed against its own knowledge, experience, and expertise of the time required to complete similar activities." Judge Comstock finds that (i) she is unable to "discern (or divine)" whether the redacted activities are meaningful or even related to the litigation, and thus, these amounts have been reduced in their entirety from the timekeepers' entries; (ii) there is no suggestion that Mr. Sanford's near daily reviews of the work of Mr. Ford and others advanced Plaintiffs' claims in any meaningful way, and 10.20 hours of his time will be excluded as unreasonable, leaving 3.8 hours of Mr. Sanford's time at the rate of $250; (iii) after deductions of 3.8 hours and .8 hours respectively, Kinney has 11.2 compensable hours and Rauls has .2 compensable hours, all at $175 per hour; (iv) she will deduct 3 hours from Mr. Ford's time, leaving 38.3 compensable hours at his rate of $175; (v) she will exclude all staff billing ($252); and (vi) she will award 17.20 hours of paralegal time and .6 hours of law clerk time at the rates noted. C. Final Lodestar Amount Judge Comstock will award attorneys' fees to the Plaintiffs in the amount of $12,367.50 which reflects the timekeepers, approved hourly rates and hours reasonably expended which can be fairly shifted to the Defendants pursuant to 29 U.S.C. Section 216(b). She finds no basis for adjusting the fee upward because of the results the Plaintiffs obtained as only one Plaintiff received more than $950 in settlement funds. D. Costs The Plaintiffs seek an award of costs in the amount of $936.50. Judge Comstock will exclude $91.50 in postage costs as normal business overhead, but will award costs in the amount of $845. Conclusion For reasons she stated, Judge Comstock granted the Plaintiff's Motion for Costs and Attorney's Fees. She awarded the Plaintiffs costs in the amount of $845 and attorneys' fees in the amount of $12,367.50. A full-text copy of the Court's Oct. 20, 2021 Order is available at https://tinyurl.com/tkw8msk5 from Leagle.com. [*] Australian Gov't Proposes Major Class Action Law Reforms ------------------------------------------------------------ John Emmerig, Esq., Annie Leeks, Esq., Michael Legg, Esq., Michael Lundberg, Esq., Daniel Moloney, Esq., and Holly Sara, Esq., of Jones Day, in an article for Mondaq, report that the Australian Federal Government has released a draft exposure bill, the Treasury Laws Amendment (Measures for Consultation) Bill 2021: Litigation funders ("Draft Bill"), that proposes significant changes to Australia's class action regime. The Draft Bill adds to earlier class action regulatory reforms, including regulations which require litigation funded class actions to comply with the 'managed investment scheme' ("MIS") requirements in the Corporations Act 2001 (Cth) and litigation funders to hold an Australian financial services licence. The Result: The Draft Bill aims to further regulate litigation funding in the class action context through the MIS regime. If passed by Federal Parliament, the Draft Bill would effectively cap the fees paid by class members to lawyers and litigation funders at 30% of any settlement or award of damages. The Draft Bill would also give courts the power to vary a proposed distribution to ensure it is 'fair and reasonable'. Further, payment of the funder's fee would be limited to class members who expressly sign up to the scheme, rather than all class members who fall within the class definition. Looking Ahead: The proposed reforms, if passed, would constitute some of the most significant reforms to Australia's class action regime in recent history and have the potential to place downward pressure on the number of class actions commenced, by placing an upper limit on the returns litigation funders may achieve and restricting the payment of fees to members of the scheme. Proposed Reforms The Draft Bill makes clear that 'a class action litigation funding scheme' is an MIS, in line with an earlier ruling of the Federal Court of Australia in Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147. This express statutory recognition of such schemes as MISs seeks to render ineffective any attempts to overcome regulation of litigation funding through parties challenging that court decision in subsequent litigation. The Draft Bill also adds requirements for a class action litigation funding scheme's constitution, including: -- Class members must agree in writing to be a member of the scheme, and be bound by the terms of the scheme's constitution; Each funding agreement for the scheme must include a 'claim proceeds distribution method' for determining the amount of any claim that is to be paid to the scheme's general members; -- The funding agreement must be subject to Australian law; -- The funder must pay for any court-appointed referee who examines the reasonableness of the funders fee and/or any contradictor as to whether to make any order to approve or vary the agreement's claim proceeds distribution method; -- The scheme's responsible entity must not be paid any amount in relation to the scheme that is greater than the entity's reasonable costs for managing the scheme. The court may approve or vary the claim proceeds distribution method to ensure that the method is fair and reasonable in relation to the interests of the scheme's general members as a whole. The Draft Bill sets out a range of factors that the court 'must only have regard to': (a) in relation to the proceedings, the following: (i) the amount, or expected amount, of claim proceeds for the scheme; (ii) the legal costs for the proceedings incurred by the funder and the extent to which those legal costs are reasonable; (iii) whether the proceedings have been managed in the best interests of the general members to minimise the legal costs for the proceedings; (iv) the complexity and duration of the proceedings; (b) the extent of the commercial return to the funder for the scheme in comparison to the costs incurred by the funder in relation to the scheme; (c) the risks accepted by the parties to the agreement by becoming parties to the agreement; (d) the sophistication and level of bargaining power of the general members in negotiating the agreement; (e) any other compensation or remedies obtained by any of the scheme's general members in relation to the transactions or circumstances that are the subject of the class action litigation funding scheme; (f) any other factors prescribed by regulations made for the purposes of this paragraph. The court must also receive and consider the reports of the referee and contradictor referred to above 'unless it is not in the interests of justice to do so'. The Draft Bill would also establish a rebuttable presumption that a return to the general members of a class action litigation funding scheme of less than 70% of their gross proceeds is not fair and reasonable. The Draft Bill follows the recommendations of a report by the Parliamentary Joint Committee on Corporations and Financial Services into litigation funding and the regulation of the class action industry released in December 2020 ("Report"). The Report referred to a finding by the Australian Law Reform Commission that the median return to class members, up to 2018, was 51% for funded claims, as opposed to 85% for claims where litigation funders were not involved. In announcing a consultation process on the proposed 30% cap to fees in May 2021, the Attorney-General said it was 'of particular importance to ensure successful applicants were adequately compensated in their cases as well as preventing litigation funders and law firms from taking disproportionate fees in the process'. The Draft Bill also has the effect, through specifying the condition for the enforceability of a litigation funding agreement, that a court would not make orders which extend the funder's fee or commission to class members who are not members of the class action litigation funding scheme (i.e., who have not agreed in writing to become a member of the scheme). Three Key Takeaways 1. The Draft Bill provides the courts with express power to obtain expert assistance (through the independent referee and contradictor) in the review of litigation funding fees and to ensure that the fees charged by a funder are fair and reasonable. The Draft Bill also creates a rebuttable presumption that a fee that results in the class members receiving less than 70% of gross proceeds from a class action is not fair and reasonable. 2. The Draft Bill would appear to end the practice of making of orders for nonfunded class members (i.e., class members who have not signed an agreement with a litigation funder but who fall within the class definition) to contribute to the costs of the litigation, such as through a common fund order. It would also mean that class actions with litigation funding would most likely be brought using a closed class definition which would necessitate reliance on 'book building' to sign up class members to the scheme. However, this may precipitate an increase in competing class actions as not all class members may be included in one class action. 3. The Draft Bill constitutes one of the most significant proposed changes to Australia's class action scheme in recent history. It has the potential to place downward pressure on the number and size of class actions commenced by placing an upper limit on the returns litigation funders may achieve and restricting the recovery of fees to members of the scheme. We will continue to monitor the progress of the Draft Bill and provide updates to clients in future publications. [GN] [*] Australians Willing to Join Class Action for $5,000 Payout -------------------------------------------------------------- Hannah Wootton, writing for The Australian Financial Review, reports that almost all Australians are willing to participate in a class action -- especially if it stops further wrongdoing by banks, insurers or companies doing environmental harm -- but want a payout of at least $5000 to do so, new research has revealed. A survey of around 1000 Australians by CT Group found that while an "overwhelming" 93 per cent of respondents would join class actions if they were eligible, they would only do so if they thought the payout would be worth their time. The finding comes as the federal government pushes ahead with sweeping reforms aimed at increasing the share class action members receive from damages payouts, after a series of high-profile cases in which lawyers and litigation funders took as much as half of total settlement amounts. The recent Volkswagen class action resulted in an average payout of just $2800 per class member, with claimants and legal experts frustrated by the hefty legal fees claimed in the case. The CT Group research found that a median payout of $5700 was required for Australians to consider participating in a class action. Those aged over 55 wanted at least $10,000, while younger Australians were happy to take less. The managing director of CT Group's research arm, Catherine Douglas, said the survey also showed that for many Australians, joining a class action was about more than "simply getting a payout". More than 80 per cent of respondents said that holding companies to account for their actions and deterring future wrongdoing would be leading motivators for joining a class action. Their reasons included believing companies had a duty to protect Australians and have checks and balances in place to prevent harm, and should be held responsible if they did not. Banks, polluters under fire They also believed that class actions could "set a precedent and prevent others from suffering harm in the future because of the actions of a company". "For companies where class action exposure is a business risk, a key insight is that Australians are motivated to use class action redress as a way to set an example, and deter bad actors," Ms Douglas said. "Essentially, there's a strong understanding in the community that class actions are a way to set things right, and that they can send a signal to companies in general about the need for high standards in governance and customer service." Respondents were most likely to join an environmental class action, such as when their land was contaminated by toxic chemical dumping. This finding comes amid a growing wave of climate change litigation in Australia -- which is the second busiest jurisdiction globally for such actions -- as individuals turn to the courts to hold companies and governments accountable for their carbon emissions. The banking and insurance sectors were also popular targets for class actions among respondents, as were employment issues such as underpayments. But they needed to have directly been harmed to want to participate in such actions, such as a bank charging fees it should not have, with shareholder cases the least popular form of class action. Ms Douglas pinned the public's high willingness to participate in class actions against banks and insurers on "years of headlines about poor corporate behaviour in the sector". "It shows the reputational and cost impacts of governance problems can be prolonged, well beyond immediate remediation steps or company policy reforms," she said. The high rate of willingness to participate in class actions reflected high levels of knowledge of the class action industry, with greater awareness among respondents correlating with their willingness to participate. Around 84 per cent of respondents knew what class actions were, with older, more educated or self-employed Australians most likely to have high levels of knowledge. Respondents said that the potential time and hassle of being in a class action were likely to reduce their participation -- meaning the payout had to be worth it -- as was frustration with a culture where every issue needed to be resolved for a lawsuit to wrap up. [GN] ********* 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 ***