/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220124.mbx C L A S S A C T I O N R E P O R T E R Monday, January 24, 2022, Vol. 24, No. 11 Headlines ACE PARKING: Mkoma Suit Remanded to California Superior Court ACETO CORP: Second Cir. Affirms Dismissal of Bonine's Amended Suit ARDAGH METAL: Diaz Wage-and-Hour Suit Removed to E.D. California ARRIVAL SA: Rosen Law Firm Reminds of February 22 Deadline ASBH LLC: Cortez Sues Over Unpaid Wages for Food Market Staff ATMOSPHERE GASTROPUB: Devillaz Sues Over Unpaid Wages for Bar Staff BEIERSDORF INC: Sunscreen Contains Benzene, Bangoura Suit Claims BEND MEMORIAL: Extension of Discovery & PTO Deadlines Entered BETH ISRAEL: Liable to 401(K) and 403(B) Plan Losses, Clark Says BETH SKINNER: Losee Seeks to Certify Class of Inmates BRITAX CHILD: Court Tosses Bid to Modify Class Cert. Sched Order BURLINGTON COAT: Lam Labor Code Suit Removed to N.D. California CARRIER ONE: Court Narrows Claims in Niiranen's Amended Class Suit CENTRAL LOAN: Filing of Class Status Bid Due April 23, 2023 CMG CIT: Bid to Strike Class Certification Bid Tossed as Moot CONTACTUS LLC: Bunker Seeks to Conditionally Certify Collective CRST INT'L: Briefing Deadlines on Rule 23 Class Status Bid Extended DENKA PERFORMANCE: Louisiana Court Dismisses LDH From Butler Suit DENKA PERFORMANCE: Louisiana DOH Dismissed with Prejudice DRG SOUTHEAST: Fair Suit Alleges Unpaid OT for Delivery Drivers EQUAL EMPLOYMENT: Amended Final Judgment Entered in "Bear Creek" EQUINOX HOLDINGS: Seeks Extension to File Class Cert Response EVERI PAYMENTS: Saavedra Seeks Extension to File Class Cert. Bid FIRST STUDENT: Continuance of Class Cert. Briefing Sched Sought FIRSTCASH HOLDINGS: Robbins Geller Reminds of March 15 Deadline FLORIDA INTERNATIONAL: Motion to Compel Filed in House Class Suit FORESTERS LIFE: Court Tosses Siino Class Certification Bid GENERAL ELECTRIC: Somers Appeals Summary Judgment in Labor Suit GILL INDUSTRIES: Court Denies Bid to Certify Class in Walters Suit GOOGLE LLC: CLRA Violation and Fraud Claims in Kumandan Suit Tossed GOOGLE LLC: Singh Loses Class Certification Bid GULFPORT ENERGY: New York Court Tosses Woodley's 2nd Amended Suit GUNITE PROS: Conditional Certification Amended in Troxel Suit HB & H LLC: Exotic Dancers Get Class Certification in Fares Suit HEALTHCARE REVENUE: Santos Appeals Class Cert. Denial in FCRA Suit HEARTLAND EXPRESS: Bid for Summary Judgment in Freitas Suit Granted HELENA-WEST, AR: Doe FLSA Class Suit Removed to E.D. Arkansas HEREFORD INSURANCE: S.D. New York Tosses MSP Recovery Class Suit HUFFMASTER MGMT: Huffmaster Crisis Dismissed From Campbell Suit JAMES LEBLANC: Joint Bid to Extend Discovery Deadline Filed JOHNSON CONTROLS: Martin Seeks Initial OK of Class-Wide Settlement KELLER WILLIAMS: Bid to Extend Class Cert Discovery Deadline Filed KINGLAND COMPANY: Ct. Enters Scheduling Order in Czarnecki Suit KIRIN TRANSPORTATION: Wang Conditional Cert. Bid Partly Granted KNIGHT TRANSPORTATION: Class of Truck Drivers Certified in LaCross KNIGHT TRANSPORTATION: LaCross Wins Class Certification Bid LOVE STYLE: Bid to Extend Time to Certify Class Action Filed M-I LLC: Last Suit Seeeks to Certify Rule 23 Classes of Employees MARDEN-KANE INC: Can't Compel Arbitration in Suski Class Suit MASTERCARD INTERNATIONAL: Scoma Seeks Extension to File Response MCCORMICK & CO: Consumers Exposed to Toxic Metals, Balistreri Says MCGRAW HILL: S.D. New York Narrows Claims in Flynn Class Suit MDL 2903: Plaintiffs Seek to Strike Class Cert. Sur-Reply MDL 2998: Pretrial Sched Order Amended in Pork Antitrust Suit MEDICAL MANAGEMENT: Bid for Class Status Withdrawn w/o Prejudice MICHAEL MONTALVO: Court Enters Order on Case Management & Deadlines MILLIMAN INC: Mattson ERISA Suit Alleges Breach of Fiduciary Duty NEW YORK: District Court Certifies Class in Raymond v. DOCCS NEW YORK: Raymond Suit Wins Rule 23 Class Certification NISSAN NORTH: Discovery & Class Cert. Deadlines Extended in Harris NORTH AMERICAN: Court Sets Briefing Schedule in McGhee Class Suit NORWICH COMMERCIAL: Scheduling Order, Case Mng't Plan Entered NRX PHARMACEUTICALS: Dal Sues Over 25.45% Decline of Stock Price ODONATE THERAPEUTICS: Settlement in Kendall Gets Initial Nod OGDEN CITY, UT: ORAA Suit Dismissed for Failure to State a Claim OGDEN CITY: Court Narrows Claims in ORAAI Suit OHIO NATIONAL: Veritas Suit Seeks to Certify Broker-Dealers Class ONE SOURCE TECHNOLOGY: Wright FCRA Suit Removed to D. Minnesota ONEBEACON INSURANCE: MSP Seeks Reconsideration of Dec. 29 Order OREGON: Seeks to Stay Reyes Proceedings Pending Resolution in Maney ORIGINAL HOMESTEAD: Hakaj Seeks Restaurant Servers' Unpaid Wages PAPA INC: Class Certification Deadline Sought in Andersen PAR-A-DICE HOTEL: Joint Bid to Extend Response Deadlines Filed PORSCHE CARS: Xu, Vaz-Pocas Seek to Certify Rule 23 Classes PREFERRED CAREGIVERS: Filing for Class Cert. Bid Due April 14 PROGESSIVE NORTHERN: Wins Summary Judgment Bid v. Rachel Curtis ROBINHOOD: Class Cert. Hearing on Outage Case Continued to Feb. 24 ROMEO'S PIZZA: Branning Seeks to Strike Objection to Cert. Notice ROYAL CREDIT: Court Certifies Settlement Class in Schindler Suit RUSHMORE LOAN: Joint Bid to Amend Sched Order in Panzarella OK'd RUTTER'S INC: Filing of Class Status Bid Due March 15 SAINT THOMAS UNIVERSITY: Court Dismisses Emrit Class Suit SEALAND CONTRACTORS: Time to Complete Discovery Extended SEATTLE, WA: Grae-El Must File Class Status Bid by June 14 SPEEDWAY LLC: Howe Seeks to Certify Rule 23 Class ST. LOUIS, MO: Cody, et al., Seek to Certify Narrowed Classes STEWARD HEALTH: Joint Bid for Entry of Class Certification Filed SUNTECH DEVELOPMENT: Carvajal FLSA Suit Removed to S.D. Florida SYGMA NETWORK: Mudrich Seeks to Certify FLSA Collective Action TALIS BIOMEDICAL: Kessler Topaz Reminds of March 8 Deadline THATFORD LODGING: Underpays Housekeepers, Hernandez Suit Alleges TOSHIBA CORP: Stoyas Loses Bid for Class Certification U.S. BANCORP: Morris Hits Illegal Fees for Mortgage Payments ULTA SALON: Gonzalez Consumer Suit Goes to C.D. California UMT MARINE: Hernandez Sues Over Unpaid Overtime, Retaliation UNILEVER UNITED: Goytia Sues Over Sale of Adulterated Body Sprays UNITED STATES: Bid for Summary Judgment Partly Granted in Keller UNITED STATES: Bid to Dismiss Robert v. Dep't. of Defense Granted UNITED STATES: Court Dismisses Robert Class Suit VALVE CORPORATION: Wins Summary Judgment v. G.G. et al. VF OUTDOOR: Class Cert. Briefing Deadlines, Hearing Continued VIVINT SOLAR: Briefing Schedule for Class Certification Modified WAL-MART ASSOCIATES: Stipulation to Modify Schedule in Carlos OK'd WELLS FARGO: Healy Suit Moved to Northern District of California WELLS FARGO: Urista Suit Moved to Northern District of California WHOLESALE CORP: Briefing Deadlines for Class Cert. Bid Extended WILDERNESS SPORTS: Fails to Protect Customers' Info, Pfeffer Says WOODALLS INC: Loses Bid to Dismiss Akers Amended Complaint XPO LAST: Gonzalez Wins Bid for Class Certification ********* ACE PARKING: Mkoma Suit Remanded to California Superior Court ------------------------------------------------------------- In the case, HALIMO MKOMA, individually and on behalf of all others similarly situated, Plaintiff v. ACE PARKING MANAGEMENT, INC. and DOES 1-100, Defendant, Case No. 21-cv-1693-MMA (MSB) (S.D. Cal.), Judge Michael M. Anello of the U.S. District Court for the Southern District of California issued an order: a. granting the Plaintiff moves to remand the action to state court pursuant to 28 U.S.C. Section 1447 based on lack of subject matter jurisdiction; and b. declining to rule on the Defendant moves to compel arbitration and dismiss or stay the action pursuant to the Federal Arbitration Act and the California Arbitration Act. I. Background Plaintiff Mkoma brings the putative labor class action against Ace Parking ("Defendant) and Does 1 through 100. The Defendant removed this action from the Superior Court of California, County of San Diego, to the Court pursuant to 28 U.S.C. Section 1441 and on the basis of federal question jurisdiction under 28 U.S.C. Section 1331. The Defendant employed the Plaintiff from approximately August 2019 until April 2020. The Plaintiff was employed "as an hourly-paid, non-exempt employee." According to the Plaintiff, she worked more than eight hours in a day and/or 40 hours per week during her employment with the Defendant. She alleges that the Defendant failed to "pay overtime wages," "provide all requisite uninterrupted meal and rest periods," pay "at least minimum wage for all hours worked," pay "all wages owed upon discharge or resignation," pay "all wages within any time permissible under California law," "provide complete or accurate records," reimburse "for all necessary business-related expenses and costs," and properly compensate "pursuant to California law in order to increase the Defendants' profits." On Aug. 16, 2021, the Plaintiff filed her Complaint in state court. She brings 10 causes of action alleging various violations of the California Labor Code and California Business and Professions Code. She seeks civil remedies and owed wages for these violations. On Sept. 29, 2021, the Defendant removed the action to the Court. Shortly after removal, the Defendant filed a motion to compel arbitration and dismiss or stay the action, and the Plaintiff filed a motion to remand. Both parties have filed oppositions and replies. Judge Anello found the matters suitable for determination on the papers and without argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. II. Discussion A. Motion to Remand Judge Anello proceeds by first addressing the Plaintiff's motion to remand because it challenges the Court's subject matter jurisdiction. The Defendant removed the action to the Court on the basis of federal question jurisdiction. According to the Defendant, the case "directly implicats questions of federal law under Section 301 of the Labor Management Relations Act, 29 U.S.C. section 185 and the National Labor Relations Act." It provides that the Plaintiff's "theories trigger Section 301 of the LMRA because resolution of her claims will require interpretation of the collective bargaining agreement ("CBA") in place during the relevant time period." The Defendant thus asserts the Court has original jurisdiction over claims one through six and supplemental jurisdiction over the remaining four claims. Judge Anello finds that (i) the Plaintiff's unpaid overtime claim is not preempted by LMRA Section 301 because the Defendant has not carried its burden to show an active dispute over any CBA term meaning or that any term requires interpretation, among others; (ii) the Defendant fails to show why or how the meal and rest period claims would require interpretation of the CBA and there is no genuine dispute as to the meaning of any CBA provision; (iii) the Plaintiff's minimum wage claim arises independently under state law; (iv) a review of the CBA reveals that there is no specific provision that could pertain to timely payment of final wages; (v) the Defendant fails to provide any argument to support "its bare assertion that a court must interpret those CBA provisions" in its analysis; and (vi) because the Defendant has not met its burden to show that LMRA Section 301 preempts any of the Plaintiff's claims, the Court lacks subject matter jurisdiction over the action and therefore cannot exercise supplemental jurisdiction over the Plaintiff's remaining claims. In light of the foregoing, Judge Anello holds that the Defendant fails to demonstrate that LMRA Section 301 preempts the Plaintiff's claims and thus fails to establish federal question jurisdiction. Therefore, the Court lacks subject matter jurisdiction over the entire action. Accordingly, Judge Anello will grant the Plaintiff's motion to remand. B. Motion to Compel In addition to the Plaintiff's motion to remand, the Defendant moves to compel arbitration and dismiss or stay the action pursuant to the Federal Arbitration Act and the California Arbitration Act. Because the Court lacks subject matter jurisdiction, Judge Anello must dismiss the case. Accordingly, he declines to rule on the merits of the Defendant's motion. III. Conclusion For the foregoing reasons, Judge Anello granted the Plaintiff's motion to remand and remanded the action to the Superior Court of California, County of San Diego. As the Court lacks subject matter jurisdiction over the action, he declined to rule on the Defendant's motion to compel arbitration and dismiss or stay the action. Judge Anello directed the Clerk of Court to close the case and terminate all pending motions, deadlines, and hearings. A full-text copy of the Court's Jan. 11, 2022 Order is available at https://tinyurl.com/ycksw2pv from Leagle.com. ACETO CORP: Second Cir. Affirms Dismissal of Bonine's Amended Suit ------------------------------------------------------------------ In the case, MICHAEL BONINE, Movant-Appellant v. RONALD L. MULLIGAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, JINCAI YANG, Consolidated-Plaintiff, SALVATORE GUCCIONE, FRANCES P. SCALLY, REBECCA A. ROOF, ALBERT L. EILENDER, WALTER J. KACZMAREK, Defendants-Appellees, DOUGLAS ROTH, Defendant-Consolidated-Defendant-Appellee, WILLIAM C. KENNALLY, III, Consolidated-Defendant-Appellee, ACETO CORPORATION, Defendant, Case No. 21-955 (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirmed the district court's dismissal, for failure to state a claim, of Bonine's second amended consolidated class action complaint, entered on Aug. 4, 2020. Plaintiff-Appellant Bonine appeals from the district court's dismissal, for failure to state a claim, of his second amended consolidated class action complaint or SAC under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5. In the SAC, Bonine alleges that the individual Defendants, who are former officers and directors of Aceto Corporation, a now-liquidated pharmaceutical and chemical products company, materially misrepresented to investors the extent of Aceto's inability to provide products to its customers. Bonine's allegations concern Aceto's relationship with its primary supplier, Aurobindo Pharma Ltd., an Indian pharmaceutical manufacturer. He alleges that in 2017 and 2018, Aurobindo intentionally failed to supply one of Aceto's subsidiaries, Rising Health, in breach of those parties' supply agreement, and that Defendants failed in their duty to disclose the extent of Aceto's problem with Aurobindo. According to Bonine, Aurobindo's actions caused Aceto to incur $14.8 million in failure-to-supply penalties and Aceto's stock price to plummet, resulting in extensive losses to Bonine and the putative plaintiff class and eventually leading to Aceto's filing for bankruptcy. In May 2019, three months after the end of the proposed Class Period, Aceto's bankruptcy estate filed an adversary proceeding complaint (the "Adversary Complaint") against Aurobindo, alleging that Aurobindo secretly engaged in an elaborate scheme to sabotage Aceto's business by refusing to supply products to Rising Health "between 2017 and 2018." Relying primarily on the Adversary Complaint's allegations, Bonine faults the Defendants for failing to disclose to investors during the Class Period the scope and magnitude of Aurobindo's scheme. The district court dismissed the SAC with prejudice for failing to plead with particularity facts giving rise to a strong inference of scienter, as required by the Private Securities Litigation Reform Act ("PLSRA"). It then denied Bonine's two post-judgment attempts to revive his claims, first through a Rule 59(e) motion to alter or amend judgment, and then through a Rule 60(b) motion for relief from judgment and for leave to file a third amended complaint. Bonine now appeals. The Second Circuit reviews de novo the district court's grant of a motion to dismiss under Rule 12(b)(6). It reviews de novo the denial of a Rule 60(b) motion, to the extent that the denial is based solely on futility grounds. Upon such review, the Second Circuit identifies no error in the district court's rulings. It concludes, for substantially the reasons stated by the district court in its well-reasoned opinion adjudicating the motion to dismiss, that the Defendants' "failure to disclose that Aurobindo was in breach of the Supply Agreement and the other information Bonine faults them for omitting does not produce a strong enough inference of recklessness to survive the Defendants' motion to dismiss." The Second Circuit finds that although Bonine contends that the Adversary Complaint's allegations support an inference that the Defendants acted with the requisite scienter, the Adversary Complaint does not allege facts that if proven would demonstrate that Defendants were aware of Aurobindo's alleged misconduct at the time they disclosed Aceto's supply chain problems to investors. It agrees with the district court that the failure to plead such facts is fatal to the SAC's scienter allegations. Without specific allegations to establish the Defendants' contemporaneous awareness of the extent of Aurobindo's breach, Bonine has not alleged fraud with the particularity required by Rule 9(b) and the PLSRA. The Second Circuit also concludes that the district court properly denied Bonine's post-judgment attempts to resurrect his claims. In his Rule 59(e) motion, Bonine insists that the Second Circuit's decision in Setzer v. Omega Healthcare Investors, Inc., 968 F.3d 204 (2d Cir. 2020), marks an intervening change of controlling law that requires the district court to alter or amend the judgment. In Setzer, it was ruled that a "complaint raised a strong inference" that Defendants, a real estate investment trust and its executives, "acted, at the very least, recklessly" when they reported that one of its major tenants, which had been experiencing financial difficulties, began making partial rental payments, but failed to disclose that the source of the partial payments was a $15 million loan made by their own company. Based on the company's actions, the Second Circuit ruled that the complaint adequately alleged that the defendants were aware of the tenant's financial problems but "made a conscious decision to not disclose the Loan" -- a substantial and significant financial transaction designed to sustain the tenant-- to investors. The Second Circuit agrees with the district court that Setzer worked no change in the law and in any event does not govern the case, because Bonine's allegations are quite different. Unlike in Setzer, the facts that Bonine alleges in the SAC do not produce a strong enough inference that Defendants "made a conscious decision" to not disclose Aurobindo's alleged scheme to sabotage Aceto or, indeed, that they knew of any Aurobindo scheme when advising investors of supply difficulties. Setzer concerned the defendants' representation that its tenant's fortunes were improving, while omitting the essential context that a landlord-financed loan was the source of the resumed partial rental payments; Bonine has not alleged that the Defendants here knowingly undertook such an obviously nefarious scheme, nor that they took any similar undisclosed action comparable to the loan. What was undisclosed was the scheme of another party, a scheme not sufficiently alleged to be known to the Defendants. Therefore, Bonine fails to "identify an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice" such as would be required to grant relief under Rule 59(e). Finally, alleged insider trading by Defendant-Appellee Douglas Roth (the former CFO of Aceto) and non-party Edward Kelly (the former Controller) do not save Bonine's claims. Bonine asserts that the facts underlying the charges of Roth's and Kelly's respective alleged unlawful trading cure the SAC's scienter pleading deficiencies. He is mistaken, the Second Circuit finds. It agrees with the district court that neither the SEC complaints nor the criminal information filed against Roth suffice to establish an inference that the Defendants, including Roth, had sufficient knowledge of Aurobindo's malicious intentions regarding Aceto when Defendants disclosed to investors that Aceto was suffering from supply problems. Because amendment would be futile, the district court did not err in denying Bonine's request under Rule 60(b) for relief from judgment and to amend his complaint under Rule 15(a)(2). The Second Circuit has considered Bonine's remaining arguments and finds in them no basis for reversal. The judgment of the district court is affirmed. A full-text copy of the Court's Jan. 11, 2022 Summary Order is available at https://tinyurl.com/2p86xmtx from Leagle.com. JACOB A. GOLDBERG -- jgoldberg@rosenlegal.com -- The Rosen Law Firm, P.A., in Jenkintown, Pennsylvania, FOR MOVANT-APPELLANT MICHAEL BONINE. STAN CHIUEH (Eric Seiler -- eseiler@fklaw.com -- Philippe Adler, on the brief), Friedman Kaplan Seiler & Adelman LLP, in New York City, FOR DEFENDANTS-APPELLEES SALVATORE GUCCIONE, FRANCES P. SCALLY, REBECCA A. ROOF, ALBERT L. EILENDER, WALTER J. KACZMAREK, AND WILLIAM C. KENNALLY, III. KENNETH M. ABELL -- kabell@aellaw.com -- (Scott Glicksman, on the brief), Abell Eskew Landau LLP, in New York City, FOR DEFENDANT-APPELLEE DOUGLAS ROTH. ARDAGH METAL: Diaz Wage-and-Hour Suit Removed to E.D. California ---------------------------------------------------------------- The case styled GRANT DIAZ, individually and on behalf of all others similarly situated v. ARDAGH METAL BEVERAGE USA, INC., and DOES 1-50, inclusive, Case No. FCS057518, was removed from the Superior Court of the State of California, in and for the County of Solano, to the U.S. District Court for the Eastern District of California on January 18, 2022. The Clerk of Court for the Eastern District of California assigned Case No. 2:22-at-00056 to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California Business and Professions Code including failure to pay all minimum wages, failure to pay all overtime wages, failure to provide meal periods, failure to provide rest periods, failure to furnish accurate wage statements, failure to timely pay wages, and unfair competition. Ardagh Metal Beverage USA, Inc. is a manufacturer and supplier of beverage cans and other sustainable packaging, headquartered in Chicago, Illinois. [BN] The Defendant is represented by: Sabrina L. Shadi, Esq. Nicholas D. Poper, Esq. BAKER & HOSTETLER LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025-0509 Telephone: (310) 820-8800 Facsimile: (310) 820-8859 E-mail: sshadi@bakerlaw.com npoper@bakerlaw.com ARRIVAL SA: Rosen Law Firm Reminds of February 22 Deadline ---------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of Arrival SA (NASDAQ: ARVL) between November 18, 2020 and November 19, 2021, inclusive (the "Class Period"), of the important February 22, 2022 lead plaintiff deadline. SO WHAT: If you purchased Arrival 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 Arrival class action, go to http://www.rosenlegal.com/cases-register-2231.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 February 22, 2022. 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. Many of these firms do not actually litigate securities class actions. 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) Arrival would record a substantially greater net loss and adjusted EBITDA loss in the third quarter of 2021 compared to the third quarter of 2020; (2) Arrival would experience far greater capital and operational expense to operate and deploy its microfactories and manufacture EV vehicles than it had disclosed; (3) Arrival would not capitalize on or achieve profitability or provide meaningful revenue in the time periods disclosed; (4) Arrival would not achieve its disclosed production and sales volumes; (5) Arrival would not meet the disclosed production rollout deadlines; (6) accordingly, Arrival materially overstated its financial and operational position and/or prospects; and (7) as a result, defendants' public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the Arrival class action, go to http://www.rosenlegal.com/cases-register-2231.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] ASBH LLC: Cortez Sues Over Unpaid Wages for Food Market Staff ------------------------------------------------------------- JUAN DIEGO CORTEZ, individually and on behalf of all others similarly situated, Plaintiff v. ASBH LLC d/b/a as LEA BROOKLYN, and BENJAMIN J HEEMSKERK, Defendants, Case No. 1:22-cv-00271 (E.D.N.Y., January 18, 2022) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay overtime wages, failure to pay spread-of-hours premium, failure to provide wage statements, and failure to provide annual wage notices. The Plaintiff worked as a dishwasher, kitchen helper and cook at Lea Brooklyn in New York from October 2020 to November 2021. ASBH LLC, doing business as Lea Brooklyn, is an owner and operator of an Italian food market and kitchen, located at 1022 Cortelyou Rd., Brooklyn, New York. [BN] The Plaintiff is represented by: Jacob Aronauer, Esq. THE LAW OFFICES OF JACOB ARONAUER 225 Broadway, 3rd Floor New York, NY 10007 Telephone: (212) 323-6980 E-mail: jaronauer@aronauerlaw.com ATMOSPHERE GASTROPUB: Devillaz Sues Over Unpaid Wages for Bar Staff ------------------------------------------------------------------- ERIC DEVILLAZ, individually and on behalf of all others similarly situated, Plaintiff v. ATMOSPHERE GASTROPUB, INC., MICHAEL DAVIS, MEGAN DAVIS, and STEVEN BAILEY, Defendants, Case No. 1:22-cv-00126 (D. Colo., January 18, 2022) is a class action against the Defendants for violations of the Fair Labor Standards Act, the Colorado Wage Claim Act, and the Colorado Minimum Wage Act by diverting employee tips, failing to pay the minimum wage for all hours worked, and failing to provide required meal and rest breaks. The Plaintiff worked for the Defendants as a non-exempt employee. Atmosphere Gastropub, Inc. is a bar owner and operator in Colorado. [BN] The Plaintiff is represented by: Brian D. Gonzales, Esq. THE LAW OFFICES OF BRIAN D. GONZALES, PLLC 2580 East Harmony Road, Suite 201 Fort Collins, CO 80528 Telephone: (970) 214-0562 E-mail: BGonzales@ColoradoWageLaw.com BEIERSDORF INC: Sunscreen Contains Benzene, Bangoura Suit Claims ---------------------------------------------------------------- ALMANY ISMAEL BANGOURA, individually and on behalf of all others similarly situated, Plaintiff v. BEIERSDORF, INC. and BAYER HEALTHCARE, LLC, Defendants, Case No. 1:22-cv-00291-BMC (E.D.N.Y., January 18, 2022) is a class action against the Defendants for violations of New York General Business Law, breach of express warranty, breach of implied warranty of merchantability, fraudulent concealment, medical monitoring, and unjust enrichment. According to the complaint, the Defendants are engaged in false, deceptive and misleading advertising, labeling, and marketing of Coppertone Defend and Care Whipped Ultra Hydrate SPF 50 sunscreen product. The Defendants list both the active and inactive ingredients of the product but fail to disclose that the product contains benzene, a known human carcinogen. Had the Plaintiff and similarly situated consumers known the truth, they would not have purchased the product, says the suit. Beiersdorf, Inc. is an international skin care company, with its headquarters in Wilton, Connecticut. Bayer HealthCare, LLC is a manufacturer of healthcare and medical products, with its headquarters in Whippany, New Jersey. [BN] The Plaintiff is represented by: Jason P. Sultzer, Esq. Joseph Lipari, Esq. Daniel Markowitz, Esq. THE SULTZER LAW GROUP P.C. 270 Madison Avenue, Suite 1800 New York, NY 10016 Telephone: (845) 483-7100 Facsimile: (888) 749-7747 E-mail: sultzerj@thesultzerlawgroup.com liparij@thesultzerlawgroup.com markowitzd@thesultzerlawgroup.com - and – David C. Magagna Jr., Esq. Charles E. Schaffer, Esq. LEVIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 E-mail: dmagagna@lfsblaw.com cschaffer@lfsblaw.com BEND MEMORIAL: Extension of Discovery & PTO Deadlines Entered ------------------------------------------------------------- In the class action lawsuit captioned as Fulkerson, et al., v. Bend Memorial Clinic, et al., Case No. 6:20-cv-01579 (D. Or.), the Hon. Judge Ann L. Aiken entered an order on motion for Extension of Discovery & PTO Deadlines as follows: -- Joint Alternate Dispute Resolution Feb. 9, 2022 Report is due by: -- Pretrial Order is due by: Feb. 9, 2022 -- Class certification discovery April 15, 2022 shall be completed by: -- Expert reports as to class April 29, 2022 certification are due by: -- Depositions of class July 5, 2022 certification experts shall be completed by: -- The Plaintiffs' Motion for July 15, 2022 Class Certification/Defendants' Motion for Summary Judgment shall be filed by: -- The Defendants' Memorandum in Aug. 19, 2022 Opposition to Class Certification/ Plaintiffs' Memorandum in Opposition to Summary Judgment shall be filed by: -- Plaintiffs' Reply Memorandum in Sept. 6, 2022 support of class certification/ Defendants' Reply to Motion for Summary Judgment shall be filed by: -- Non-dispositive motions, excluding Oct. 28, 2022 trial and trial-related motions shall be filed by: -- Dispositive Motions are due by: Dec. 14, 2022 Bend Memorial is a multi-specialty clinic in Central Oregon with imaging and lab services. The suit alleges violation of the Americans with Disabilities Act.[CC] BETH ISRAEL: Liable to 401(K) and 403(B) Plan Losses, Clark Says ---------------------------------------------------------------- TRUDY CLARK, DONNA NESMITH, JESSICA SMITH, and SHELLY STACK, individually and as representatives of a class of similarly situated persons, on behalf of the BETH ISRAEL DEACONESS MEDICAL CENTER 401(K) SAVINGS AND INVESTMENT PLAN and the BETH ISRAEL DEACONESS MEDICAL CENTER VOLUNTARY 403(B) PLAN, Plaintiffs v. BETH ISRAEL DEACONESS MEDICAL CENTER, THE BOARD OF DIRECTORS OF BETH ISRAEL DEACONESS MEDICAL CENTER, THE PENSION COMMITTEE OF BETH ISRAEL DEACONESS MEDICAL CENTER, and DOES No. 1-20, whose names are currently unknown, Defendants, Case No. 1:22-cv-10068 (D. Mass., January 18, 2022) is a class action against the Defendants for breach of fiduciary duty and failure to monitor fiduciaries and co-fiduciary breaches under the Employee Retirement Income Security Act. According to the complaint, the Defendants have breached their fiduciary duties to the Plan by: (1) failing to fully disclose the expenses and risk of the Beth Israel Deaconess Medical Center 401(k) Savings and Investment Plan and/or the Beth Israel Deaconess Medical Center Voluntary 403(b) Plan's investment options to participants; (2) allowing unreasonable expenses to be charged to participants; and (3) selecting, retaining, and/or otherwise ratifying high-cost and poorly-performing investments, instead of offering more prudent alternative investments when such prudent investments were readily available at the time the Defendants selected and retained the funds at issue. The Plaintiffs and all Plan participants allegedly suffered financial harm as a result of the imprudent investment options and excessive fees, and were deprived of the opportunity to invest in prudent options with reasonable fees, among other injuries. Beth Israel Deaconess Medical Center is a hospital, headquartered in Boston, Massachusetts. [BN] The Plaintiffs are represented by: John Roddy, Esq. Elizabeth Ryan, Esq. BAILEY & GLASSER LLP 176 Federal Street, 5th Floor Boston, MA 02110 Telephone: (617) 439-6730 Facsimile: (617) 951-3954 E-mail: jroddy@baileyglasser.com eryan@baileyglasser.com - and – James E. Miller, Esq. Laurie Rubinow, Esq. MILLER SHAH LLP 65 Main Street Chester, CT 06412 Telephone: (866) 540-5505 Facsimile: (866) 300-7367 E-mail: jemiller@millershah.com lrubinow@millershah.com - and – James C. Shah, Esq. Alec J. Berin, Esq. MILLER SHAH LLP 1845 Walnut Street, Suite 806 Philadelphia, PA 19103 Telephone: (866) 540-5505 Facsimile: (866) 300-7367 E-mail: jcshah@millershah.com ajberin@millershah.com - and – Kolin C. Tang, Esq. MILLER SHAH LLP 19712 MacArthur Blvd. Irvine, CA 92612 Telephone: (866) 540-5505 Facsimile: (866) 300-7367 E-mail: kctang@millershah.com - and – Mark K. Gyandoh, Esq. Gabrielle Kelerchian, Esq. CAPOZZI ADLER, P.C. 312 Old Lancaster Road Merion Station, PA 19066 Telephone: (610) 890-0200 Facsimile: (717) 233-4103 E-mail: markg@capozziadler.com gabriellek@capozziadler.com - and – Donald R. Reavey, Esq. CAPOZZI ADLER, P.C. 2933 North Front Street Harrisburg, PA 17110 Telephone: (717) 233-4101 Facsimile: (717) 233-4103 E-mail: donr@capozziadler.com BETH SKINNER: Losee Seeks to Certify Class of Inmates ----------------------------------------------------- In the class action lawsuit captioned as Jack Losee v. Beth Skinner, Kris Karberg, Michelle Waddle, Tracy Dietsch, and Lindsay Stupka, Case No. 22-CV-04-CJW-KEM (N.D. Iowa), the Plaintiff asks the Court to enter an order certifying a class of inmates. On behalf of all the inmates housed in Living Unit C (LUC), as well as those who may moved to LUC before conditions can be improved, Mr. Losee seeks class certification due to the seriousness of the health risks, or even risks of deaths to inmates housed in LUC because of the conditions laid out within the complaint and the request for TRO and prelinary injunction. A copy of the Plaintiff's motion to certify class dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3FvoFEl at no extra charge. The Plaintiff appears pro se.[CC] BRITAX CHILD: Court Tosses Bid to Modify Class Cert. Sched Order ---------------------------------------------------------------- In the class action lawsuit captioned as MARGARET STEVENS, individually and on behalf of all others similarly situated, v. BRITAX CHILD SAFETY, INC., Case No. 2:20-cv-07373-MCS-AS (C.D. Cal.), the Hon. Judge Mark C. Scarci entered an order denying the stipulation of Plaintiff Margaret Stevens and Britax Child Safety, Inc., to modify the scheduling order to continue class certification deadlines as follows: -- Motion Deadline: March 14, 2022; -- Opposition Deadline: April 4, 2022; -- Reply Deadline: April 18, 2022; and -- Hearing Date: May 2, 2022. Britax offers car seats, strollers and travel systems that give families the freedom and confidence to keep moving. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3FAMlY6 at no extra charge.[CC] BURLINGTON COAT: Lam Labor Code Suit Removed to N.D. California --------------------------------------------------------------- The case styled TRAM LAM, individually and on behalf of all others similarly situated v. BURLINGTON COAT FACTORY OF TX, INC.; and DOES 1 through 100, inclusive, Case No. 3CV269639, was removed from the Superior Court of the State of California, in and for the County of Sonoma, to the U.S. District Court for the Northern District of California on January 18, 2022. The Clerk of Court for the Northern District of California assigned Case No. 3:22-cv-00351 to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California Business and Professions Code including failure to pay wages for all hours worked at minimum wage, failure to pay overtime, failure to provide meal periods or pay a premium in lieu thereof, failure to timely pay wages earned, failure to furnish accurate itemized wage statements, failure to timely pay final wages, and unfair business practices. Burlington Coat Factory of TX, Inc. is a department store retailer, with its principal executive offices in Burlington, New Jersey. [BN] The Defendant is represented by: Carrie A. Gonell, Esq. Kimberli A. Williams, Esq. Mayra Negrete, Esq. MORGAN, LEWIS & BOCKIUS LLP 600 Anton Boulevard, Suite 1800 Costa Mesa, CA 92626-7653 Telephone: (714) 830-0600 Facsimile: (714) 830-0700 E-mail: carrie.gonell@morganlewis.com kimberli.williams@morganlewis.com mayra.negrete@morganlewis.com CARRIER ONE: Court Narrows Claims in Niiranen's Amended Class Suit ------------------------------------------------------------------ In the case, CLIFF NIIRANEN, et al., individually and on behalf of all others similarly situated, Plaintiffs v. CARRIER ONE, INC., et al., Defendants, Case No. 20-cv-06781 (N.D. Ill.), Judge Andrea R. Wood of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part the Carrier One's motion to dismiss. Carrier One moved to dismiss Count I, Count III, and any claims on behalf of a putative class in the Plaintiffs' first amended class action complaint ("FAC"), pursuant to Federal Rule of Civil Procedure 12(b)(6). I. Introduction Plaintiffs Cliff Niiranen and Robert Treadway are both former over-the-road drivers for Defendant Carrier One. The Plaintiffs allege that, during their employment, Carrier One and Defendant Ivan Samarov (collectively, "Carrier One") failed to pay them and the similarly situated drivers compensation owed to them and took unlawful deductions from their wages, thereby violating the Illinois Wage Payment and Collection Act ("IWPCA"), 820 ILCS 115/1 et seq., and the Truth-in-Leasing regulations, 49 C.F.R. Section 376.1 et seq., as well as breaching Carrier One's contracts with the Plaintiffs. II. Background Defendant Carrier One is a flatbed transportation services company serving the Chicago metropolitan area. It is owned wholly or in part by Defendant Ivan Samarov, who also serves as the company's president. Carrier One's drivers pick up freight, such as steel and heavy equipment, from its customers and transport it across the United States. Carrier One was headquartered in Illinois until it moved to Indiana in January 2020. Most of Carrier One's customers are located in the Chicago metropolitan area. Plaintiffs Niiranen and Treadway are former Carrier One over-the-road drivers who are not residents of Illinois. Both the Plaintiffs began working for Carrier One in 2017. As a part of the onboarding process, the Plaintiffs were required to attend a mandatory, unpaid orientation held at Carrier One facilities in Alsip, Illinois over a period of three or four days. To work as a Carrier One driver, the Plaintiffs were required to lease a truck from Impel Union, an Illinois corporation that shared a headquarters with Carrier One. At the same time, the Plaintiffs entered into a standard-form contract with Carrier One titled "Independent Contractor Equipment Lease Agreement" and a separate "Authorization Form" that directed Carrier One to make payments to Impel Union for the Plaintiffs' truck rental and associated insurance costs. Carrier One would deduct those payments to Impel Union from the Plaintiffs' weekly wages. All three agreements were presented to the Plaintiffs and all members of the putative class on a take-it-or-leave-it basis with no opportunity for negotiation. Under Carrier One's Equipment Lease, the Plaintiffs were to be paid weekly in an amount equal to 80% of the gross revenue for all that week's loads. Further, the Equipment Lease listed several deductions that would be taken from the Plaintiffs' weekly paychecks. While the Equipment Lease referred to the Plaintiffs as contractors who owned trucks that were being leased by Carrier One, other terms of the agreement provided that Plaintiffs were also agreeing to perform services for Carrier One under its direction and control. Each week, the Plaintiffs were paid through settlement statements issued by Carrier One. The settlement statements listed the gross pay for the order, but the Plaintiffs allege that Carrier One took a cut of the gross revenue before determining the Plaintiffs' 80% share, in contravention of the Equipment Lease. Thus, according to the Plaintiffs, Carrier One failed to pay all compensation owed to them. Carrier One also took additional deductions and chargebacks from the settlement statements beyond those disclosed in the Equipment Lease. Those deductions were not authorized by the drivers and routinely exceeded 25% of their net payment. Moreover, Carrier One made escrow fund deductions but failed to fulfill its obligations to pay interest on those deductions and return the deductions in full at the conclusion of the employment relationship. III. Discussion The Plaintiffs allege that Carrier One violated the IWPCA and the Truth-in-Leasing regulations, and also breached its contracts with them, and they seek to assert those claims on behalf of themselves and a putative class. While Carrier One's motion to dismiss seeks dismissal of the entire FAC, it makes no arguments as to the Plaintiffs' individual breach of contract claims. Instead, it targets only the Plaintiffs' individual IWPCA and Truth-in-Leasing claims and all three of their claims insofar as the Plaintiffs seek to bring those claims on behalf of a class. Judge Wood first addresses whether the Plaintiffs adequately pleaded IWPCA and Truth-in-Leasing claims before turning to whether a class action can be maintained. A. IWPCA The IWPCA allows employees to sue their employer for the timely and complete payment of earned wages and prohibits employers from taking unauthorized deductions from employees' wages. Carrier One therefore contends that the Plaintiffs, non-Illinois-resident employees of an Illinois employer, cannot bring an IWPCA claim unless they have performed a substantial amount of their work in Illinois. It claims that the Plaintiffs' allegations that they attended a one-time training in Illinois and that most of Carrier One's customers are in the Chicago metropolitan area do not suffice to plead that the IWPCA applies to them. In response, the Plaintiffs first argue that the Seventh Circuit's interpretation of the IWPCA has been superseded by a more recent decision by the Illinois Appellate Court, which rejected a quantum of work requirement for IWPCA coverage so long as the employee works for an employer located in Illinois. Judge Wood opines that the Plaintiffs have pleaded that at least some of their work occurred in Illinois. For instance, the Plaintiffs allege that they attended a mandatory, unpaid orientation at Carrier One's headquarters in Alsip, Illinois. Additionally, it is reasonable to infer that the Plaintiffs performed other work in Illinois because most of Carrier One's customers are in the Chicago metropolitan area and Plaintiffs performed work "within the usual course of business of Carrier One." Viewing these factual allegations together, Judge Wood holds that the Plaintiffs have adequately alleged that they performed some work in Illinois. That is enough at the pleading stage. Because the Plaintiffs have adequately alleged that they performed some work in Illinois for an in-state employer, she will deny Carrier One's motion to dismiss the IWPCA claims. Of course, discovery will allow Carrier One to ascertain the precise amount of work the Plaintiffs performed in Illinois. If the evidence suggests that the Plaintiffs failed to perform enough work to be considered "employees in this State," Carrier One may raise that argument on summary judgment. B. Truth-in-Leasing Regulations Under 49 U.S.C. Section 14102(a)(4), the United States Secretary of Transportation has the authority to "issue regulations governing the lease of vehicles between authorized carriers and owners-operators" -- "owners-operators" meaning "trucker drivers who own their trucks and lease them to shippers or authorized carriers." The Truth-in-Leasing regulations, 49 C.F.R. Section 376.1 et seq., were promulgated pursuant to that statutory authority. Relevant in the case, "the regulations protect owners-operators by requiring carriers to enter written leases with certain mandatory terms." The Plaintiffs contend that Carrier One failed to comply with the Truth-in-Leasing regulations by making chargebacks and escrow deductions to their pay that were not disclosed in the Equipment Lease. They contend that Carrier One neither paid interest on amounts deducted in escrow nor returned those funds in full. According to Carrier One, the Plaintiffs' Truth-in-Leasing claim must be dismissed because they fail to plead that they sustained actual damages as a result of any violation of the regulations. Judge Wood opines that the Plaintiffs here have adequately alleged that Carrier One's violations caused them actual damages. Broadly, she says, the Plaintiffs have alleged that Carrier One's Truth-in-Leasing violations resulted in them being compensated "at a rate that was less than the rate promised in their Equipment Lease." Owners-operators have been found to plead actual damages adequately when they allege that the carrier's Truth-in-Leasing violations resulted in them being underpaid. Moreover, it is reasonable to infer that the Plaintiffs sustained actual damages from Carrier One's failure both to pay interest on its escrow deductions and then to return those deductions in full after the Plaintiffs stopped working for it. These allegations suffice to plead actual damages. The Plaintiffs will, of course, have to prove their damages moving forward. But for now, Carrier One's motion to dismiss the Plaintiffs' Truth-in-Leasing claims will be denied. C. Class Claims The Plaintiffs seek to bring all three of their claims on behalf of themselves and a putative class. However, Carrier One notes that the Plaintiffs' FAC alleges that the Plaintiffs signed an updated version of the Equipment Lease in 2019. Judge Wood holds that (i) she finds no conflict between the class-action waiver and either the IWPCA or the Truth-in-Leasing regulations that would preclude enforcement of the waiver; (ii) it cannot be said that the class-action procedure provides the only reasonable, cost-effective means for the Plaintiffs to obtain a complete remedy for their claims, so the class-action waiver is not substantively unconscionable; and (iii) the Plaintiffs are precluded from bringing any claims on behalf of a class, no matter when those claims arose. As a result, Judge Wood will grant Carrier One's motion to dismiss the entirety of the Plaintiffs' claims insofar as they are brought on behalf of a class of similarly situated Carrier One drivers. IV. Conclusion For the foregoing reasons, Judge Wood granted in part and denied in part Carrier One's motion to dismiss. Carrier One's motion is denied as to the Plaintiffs' individual claims but granted to the extent that the Plaintiffs seek to bring their claims on behalf of a class of similarly situated Carrier One drivers. A full-text copy of the Court's Jan. 11, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/2p8b2wam from Leagle.com. CENTRAL LOAN: Filing of Class Status Bid Due April 23, 2023 ----------------------------------------------------------- In the class action lawsuit captioned as Holmes, et al., v. Central Loan Administration & Reporting, Case No. 2:21-cv-02094 (C.D. Ill.), the Hon. Judge Colin Stirling Bruce entered an order regarding class certification dates. -- Deadlines/Hearings Plaintiff's April 23, 2023 motion for class certification due: -- Defendants' responses in May 22, 2023 opposition to Plaintiff's motion for class certification due: -- Plaintiff's reply in support June 12, 2023 of his motion for class certification due: The nature of suit states Diversity-Contract Dispute. Cenlar FSB as a mortgage subservicing company.[CC] CMG CIT: Bid to Strike Class Certification Bid Tossed as Moot ------------------------------------------------------------- In the class action lawsuit captioned as MARGARITA ERGUERA, an INDIVIDUAL ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, v. CMG CIT ACQUISITION, LLC; CIRCHARO ACQUISITION LLC; and DOES 1 through 10, inclusive, Case No. 1:20-cv-01744-JLT-BAK (E.D. Cal.), the Court entered an order denying as moot Defendant's ex parte application to strike plaintiff's motion for class certification and granting an order extending defendant's time to respond to the same as follows: 1. The request to strike the motion for class certification is denied as moot. 2. The Defendant shall file an opposition to Plaintiffs' motion or a statement of non-opposition within 60 days. 3. The reply, if any, shall be filed within 30 days thereafter. 4. The hearing on the motion for class certification is vacated and will be re-set only if the Court determines a hearing is needed. CMG CIT Acquisition, LLC operates as a health care staffing and recruiting agency. Circharo Acquisition LLC provides employment services. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3FAMta2 at no extra charge.[CC] CONTACTUS LLC: Bunker Seeks to Conditionally Certify Collective --------------------------------------------------------------- In the class action lawsuit captioned as RAYLENE BUNKER, on behalf of herself and those similarly situated, v. CONTACTUS, LLC, d/b/a CONTACTUS COMMUNICATIONS, Bunker v. ContactUS, LLC, Case No. 2:21-cv-04501-EAS-CMV (S.D. Ohio), the Plaintiff asks the Court to enter an order pursuant to Section 16(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. sections 216(b), and Fed. R. Civ. P. 26(d) and 83(b): 1. conditionally certifying this case as a collective action; and 2. implementing a procedure whereby prospective opt-in plaintiffs will be notified of Plaintiff's FLSA claims and given an opportunity to join this action as party plaintiffs. ContactUS is a U.S.-based contact center services organization supporting global brands across a variety of industries. A copy of the Plaintiff's motion dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3fvpbYv at no extra charge.[CC] The Plaintiff is represented by: Alanna Klein Fischer, Esq. Anthony J. Lazzaro, Esq. Lori M. Griffin, Esq. Matthew S. Grimsley, Esq. THE LAZZARO LAW FIRM, LLC The Heritage Bldg., Suite 250 34555 Chagrin Boulevard Moreland Hills, OH 44022 Telephone: (216) 696-5000 Facsimile: (216) 696-7005 E-mail: lori@lazzarolawfirm.com anthony@lazzarolawfirm.com alanna@lazzarolawfirm.com matthew@lazzarolawfirm.com CRST INT'L: Briefing Deadlines on Rule 23 Class Status Bid Extended ------------------------------------------------------------------- In the class action lawsuit captioned as Cervantes v. CRST International, Inc., et al., Case No. 1:20-cv-00075 (N.D. Iowa), the Hon. Judge CJ Williams entered an order granting unresisted motion for extension of briefing deadlines for Rule 23 motion for Class Certification. -- The Defendants' response is now due on Feb. 4, 2022. -- The plaintiffs' reply is now due on Feb. 18, 2022. The suit alleges violation of the Fair Labor Standards Act. CRST is an American freight company based in Cedar Rapids, Iowa. Founded in 1955 by Herald and Miriam Smith, it is a privately held company with a current fleet of about 4,500 trucks and annual revenues of $1.5 billion.[CC] DENKA PERFORMANCE: Louisiana Court Dismisses LDH From Butler Suit ----------------------------------------------------------------- Judge Martin L.C. Feldman of the U.S. District Court for the Eastern District of Louisiana granted a motion to dismiss filed in the lawsuit titled JUANEA L. BUTLER, individually and as representative of all others similarly situated v. DENKA PERFORMANCE ELASTOMER, LLC, ET AL., SECTION F, Civil Action No. 18-6685 (E.D. La.). Before the Court is a Rule 12(b)(6) motion to dismiss filed by Defendant Louisiana Department of Health ("LDH"). I. Background The environmental tort litigation arises from the production of neoprene at the Pontchartrain Works Facility ("PWF") in St. John the Baptist Parish. Neoprene production allegedly exposes those living in the vicinity of the PWF to concentrated levels of chloroprene above the upper limit of acceptable risk and allegedly may result in a risk of cancer more than 800 times the national average. Juanea L. Butler has lived in LaPlace, Louisiana since 1998. She sued the LDH, the Louisiana Department of Environmental Quality ("DEQ"), Denka Performance Elastomer LLC, and E.I. DuPont de Nemours and Co. seeking class certification, damages, and injunctive relief in the form of abatement of chloroprene releases from her industrial neighbor, the PWF. Ms. Butler's Class Action Petition for Damages was filed on June 5, 2018 in the 40th Judicial District Court for St. John the Baptist Parish. Effective Nov. 1, 2015, DuPont sold the PWF to Denka, but DuPont retained ownership of the land underlying the facility. In December 2015, the Environmental Protection Agency ("EPA") released a screening-level National Air Toxics Assessment ("NATA"), and classified chloroprene as a likely human carcinogen. EPA's NATA evaluation suggested an acceptable risk exposure threshold for chloroprene: 0.2 03bcg/m3; that is, chloroprene emissions should stay below .2 micrograms per cubic meter2 to comply with the limit of acceptable risk threshold (which is a risk of 100 in one million people). The EPA's National Enforcement Investigation Center ("NEIC") conducted a Clean Air Act ("CAA") inspection of the Pontchartrain Works facility in June 2016. A copy of the redacted inspection report from the EPA's CAA inspection was publicized on April 3, 2017. The NEIC inspection report revealed various areas of noncompliance by both DuPont and Denka in their operation of the facility, including failure to adhere to monitoring, recordkeeping, and reporting requirements for the chloroprene vent condenser; failure to replace leaking valves; failure to include appropriate emissions factors in air permit application materials; and failure to institute appropriate emissions controls for the chloroprene Group I storage tank. In her original and amended class action petition, Ms. Butler alleges that DuPont and Denka have and continue to emit chloroprene at levels resulting in concentrations exceeding the upper limit of acceptable risk. The Plaintiff further alleges that DEQ and LDH failed to warn her and her community about chloroprene exposure. Seemingly at random, the Plaintiff invokes as causes of action Louisiana state constitutional provisions. She seeks injunctive relief in the form of abatement of chloroprene releases to "comply" with the EPA's suggested 0.2 03bcg/m3 threshold; damages for deprivation of enjoyment of life; damages for medical expenses; damages for loss of wages; damages for pain and suffering; punitive damages; and additional damages including medical monitoring to the extent personal injury claims become mature. Denka and DuPont jointly removed the lawsuit, invoking the Court's diversity jurisdiction under the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section 1332(d). The Court denied the Plaintiff's motion to remand. It granted motions to dismiss filed by DuPont, Denka, DEQ, and LDH. The Plaintiff appealed, and the Fifth Circuit affirmed in part and reversed in part, remanding the case for the Court's review. The Fifth Circuit affirmed the Court's dismissal of custodial liability claims against DuPont and Denka, the Court's dismissal of all claims against Denka for failure to state a claim, and the Court's dismissal of declaratory relief claims against the Louisiana DEQ. The Fifth Circuit reversed the Court's finding that the claims against Denka, DuPont, and the LDH were prescribed and remanded. Judge Feldman now considers the LDH's motion to dismiss for failure to state a claim. II. Analysis A. Plaintiff Alleges no Legally Cognizable Duty The LDH submits that Butler has failed to demonstrate the existence of a legally cognizable duty. As a Department of the State of Louisiana, the LDH submits, it has only the duties and responsibilities delegated to it by the Louisiana Legislature. It asserts that it has not been given such a duty with regard to the issues in the case. Judge Feldman agrees. As the Court previously noted in a footnote, "The LDH is responsible for state environmental quality functions only as delegated to it by the legislature. The legislature has specifically delegated powers and duties with respect to air quality control to DEG, not the LDH." The Plaintiff raises two counterarguments to this conclusion, neither of which Judge Feldman finds compelling. First, the Plaintiff cites to animating statutes and Louisiana Supreme Court precedent in an attempt to locate a legally cognizable duty. She asserts that the LDH is required to "take such action as is necessary to accomplish the subsidence and suppression of diseases of all kinds," and "perform functions which relate to the general health of the people of the state," among other purported duties. While these statutes describe the LDH's general role in this state, they do not suffice to show a specific, legally cognizable duty on which a private plaintiff can rely for a negligence claim. As the LDH properly notes in a reply brief, the Plaintiff's theory of the LDH's duties would allow for a prima facie negligence claim in almost any case in which an individual has suffered from a disease in this state. Alternatively, the Plaintiff again relies on a purported general duty of care created by the Louisiana Supreme Court. This so-called general duty does not suffice, Judge Feldman holds. As the Fifth Circuit noted in affirming the Court's reasoning dismissing the claims against another party in this same case, "Butler's retreat to generalized grievances is unavailing. While Louisiana law does impose a 'universal duty' on defendants in a negligence action to use 'reasonable care,' plaintiffs are still required to assert a 'specific standard' of care." Without allegations suggesting the source of an enforceable duty, the plaintiff is unable to plead a plausible claim for negligence. As with the Plaintiff's responses to other motions to dismiss before the Court, their counsel -- inexcusably -- declines to even acknowledge the Fifth Circuit's binding decision in this very case. It seems kind to point out that the counsel should know better. B. The Motion is Properly Before the Court Alternatively, the Plaintiff requests that the Court strikes the LDH's motion as redundant. First, she submits that this motion is in violation of Rule 12(g)(2), which reads in part: "a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion." The LDH raised -- and the Court did not reach -- the failure to state a claim in its earlier motion to dismiss. It was not omitted from the earlier motion; this argument fails. Alternatively, the Plaintiff's counsel asks the Court to reject the motion as redundant. Again, the Court did not reach this question in its previous Order and Reasons, and so the motion is patently not redundant. The Plaintiff's responses to this motion border on the frivolous, to say the least. III. Order Accordingly, Judge Feldman granted the LDH's motion to dismiss. The LDH is dismissed with prejudice. A full-text copy of the Court's Jan. 11, 2022 Order & Reasons is available at https://tinyurl.com/yjtymt9x from Leagle.com. DENKA PERFORMANCE: Louisiana DOH Dismissed with Prejudice --------------------------------------------------------- In the class action lawsuit captioned as JUANEA L. BUTLER, individually and as representative of all others similarly situated, v. DENKA PERFORMANCE ELASTOMER, LLC, ET AL., Case No. 2:18-cv-06685-MLCF-KWR (E.D. La.), the Hon. Judge Martin L.C. Feldman entered an order that Louisiana Department of Health's motion to dimiss is granted. The Department of Health is dismissed with prejudice. This environmental tort litigation arises from the production of neoprene at the Pontchartrain Works Facility ("PWF") in St. John the Baptist Parish. Neoprene production allegedly exposes those living in the vicinity of the PWF to concentrated levels of chloroprene above the upper limit of acceptable risk and allegedly may result in a risk of cancer more than 800 times the national average. Juanea L. Butler has lived in LaPlace, Louisiana since 1998. She sued the Louisiana Department of Health ("LDH"), the Louisiana Department of Environmental Quality ("DEQ"), Denka Performance Elastomer LLC ("Denka"), and E.I. DuPont de Nemours and Company seeking class certification, damages, and injunctive relief in the form of abatement of chloroprene releases from her industrial neighbor, the PWF. Ms. Butler's Class Action Petition for Damages was filed on June 5, 2018 in the 40th Judicial District Court for St. John the Baptist Parish. Denka Performance manufactures products and components from natural and synthetic rubber, resins, silicone, foams, and polymers. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3tvyv6X at no extra charge.[CC] DRG SOUTHEAST: Fair Suit Alleges Unpaid OT for Delivery Drivers --------------------------------------------------------------- DANIEL D. FAIR and ANTHONY EVANS, individually and on behalf of all others similarly situated, Plaintiffs v. DRG SOUTHEAST, LLC, Defendant, Case No. 2:22-cv-00029-JTA (M.D. Ala., January 18, 2022) is a class action against the Defendant for violation of the Fair Labor Standards Act by failing to compensate the Plaintiffs and similarly situated delivery drivers overtime pay for all hours worked in excess of 40 hours in a workweek. Plaintiffs Fair and Evans were employed by the Defendant as hourly-paid delivery drivers from March 2018 until March 2019 and from March 2006 until August 2021, respectively. DRG Southeast, LLC is an owner and operator of multiple Pizza Hut franchises in Alabama. [BN] The Plaintiffs are represented by: Courtney Lowery, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy., Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: courtney@sanfordlawfirm.com EQUAL EMPLOYMENT: Amended Final Judgment Entered in "Bear Creek" ---------------------------------------------------------------- In the class action lawsuit captioned as BEAR CREEK BIBLE, et al., v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al., Case No. 4:18-cv-00824-O (N.D. Tex.), the Hon. Judge Reed O'Connor entered amended final judgment as follows: I. Defendants' Motion for summary judgment based on standing, ripeness, and sovereign immunity is denied. II. The Court enters judgment in favor of Braidwood and the Religious Business-Type Employers Class. a. Plaintiffs' Religious Business-Type Employers Class is certified as to Claims 1–5. b. The Class consists of for-profit entities producing secular products. While faith may be a motivating part of the businesses' missions, their incorporating documents generally do not include a religious purpose. For an employer like Braidwood, religion plays an important role, but is not the sole mission of the organization. c. Jonathan F. Mitchell, Gene P. Hamilton, Charles W. Fillmore, and H. Dustin Fillmore are appointed as class counsel. III. The Court enters judgment in favor of Braidwood and the All Opposing Employers Class. a. The Plaintiffs' All Opposing Employers Class is certified as to Claims 4 and 5. b. The Class consists of employers who oppose homosexual or transgender behavior on religious and nonreligious bases. c. Jonathan F. Mitchell, Gene P. Hamilton, Charles W. Fillmore, and H. Dustin Fillmore are appointed as class counsel. IV. The Plaintiffs' Motion for Summary Judgment is denied as to Bear Creek Church and the Church-Type Employers Class is not certified, because these employers are not burdened by Title VII. V. The Plaintiffs' Motion for Summary Judgment is granted as to the Religious Business-Type Employers Class, and those in that class are protected by the Religious Freedom Restoration Act and the First Amendment. a. Defendants are enjoined from enforcing Title VII against Braidwood and members of the Religious Business-Type Class in a manner that limits their right to establish employment policies in accordance with sincerely held religious beliefs. VI. The Plaintiffs' Motion for Summary Judgment is granted as to employer policies on sexual conduct, dress codes, and restrooms. These policies do not violate Title VII as a matter of law. a. Defendants are enjoined from enforcing Title VII against Braidwood and members of the All Opposing Employer Class in a manner that limits their right to create and maintain sex-neutral codes of conduct that do not target homosexual or transgender employees. VII. The Defendants' Motion for Summary Judgment is granted as to employer policies concerning bisexual conduct, sex- reassignment surgery, and hormone treatment. The U.S. Equal Employment Opportunity Commission is a federal agency that was established via the Civil Rights Act of 1964 to administer and enforce civil rights laws against workplace discrimination. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3A2ZoQW at no extra charge.[CC] EQUINOX HOLDINGS: Seeks Extension to File Class Cert Response ------------------------------------------------------------- In the class action lawsuit captioned as FRANK J. FODERA, JR. and MICHAEL M. BONELLA, individually and on behalf of all others similarly situated, v. EQUINOX HOLDINGS, INC., a Delaware corporation; and DOES 1-50, inclusive, Case No. 3:19-cv-05072-WHO (N.D. Cal.), the Defendant asks the Court to enter an order extending the deadline for it to response to Plaintiffs' Class Certification Motion by 45 days. On January 5, 2022, the Plaintiffs filed a Motion for Class Certification. The Defendant's response is currently due January 19, 2022. Equinox is an American luxury fitness company which operates several lifestyle brands: Equinox, Equinox Hotels, Precision Run, Project by Equinox, Equinox Explore, Equinox Media, Furthermore, PURE Yoga, Blink Fitness, and SoulCycle. A copy of the Defendant's motion dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3fv3dVv at no extra charge.[CC] The Defendants are represented by: Veronica Hunter, Esq. Mia Farber, Esq. Thomas G. Mackey, Esq. JACKSON LEWIS P.C. 725 South Figueroa Street, Suite 2500 Los Angeles, CA 90017-5408 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 E-mail: Mia.Farber@Jacksonlewis.com Thomas.Mackey@Jacksonlewis.com Veronica.Hunter@Jacksonlewis.com EVERI PAYMENTS: Saavedra Seeks Extension to File Class Cert. Bid ---------------------------------------------------------------- In the class action lawsuit captioned as SADIE SAAVEDRA, individually and on behalf of a class of similarly situated individuals, v. EVERI PAYMENTS, INC., a corporation; and EVERI HOLDINGS, INC., a corporation, Case No. 2:21-cv-06999-PA-PD (C.D. Cal.), the Plaintiff asks the Court to enter an order extending the deadline to file her motion for class certification. On September 27, 2021, Everi Payments and Everi Holdings executed a waiver of service dated on September 21, 2021, thereby establishing Defendants' deadline to respond the Complaint at November 20, 2021. Pursuant to this Court's Standing Order, "[any Motion for Class Certification shall be filed within 120 days after service of a pleading (or, if applicable, within 120 days after the filing of a Notice of Removal), unless otherwise ordered by the Court." Under this rule, the Plaintiff's motion for class certification is due to be filed by January 19, 2022. Everi Payments provides cash access products and related services. The Company manufactures and markets automatic teller machine and kiosks, as well as offers relationship management, concierge desk, and support services. A copy of the Plaintiff's motion to certify class dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3I7Qt3q at no extra charge.[CC] The Plaintiff is represented by: John R. Habashy, Esq. Nicole E. Rivera, Esq. LEXICON LAW, PC 633 W. 5th St., 28th Floor Los Angeles, CA 90071 Telephone: (213) 223-5900 Facsimile: (888) 373-2107 E-mail: john@lexiconlaw.com nicole@lexiconlaw.com - and - Scott D. Owens, Esq. SCOTT D. OWENS, P.A. 2750 N. 29th Ave., Ste. 209A Hollywood, FL 33020 Telephone: (954) 589-0588 Facsimile: (954) 337-0666 E-mail: scott@scottdowens.com FIRST STUDENT: Continuance of Class Cert. Briefing Sched Sought --------------------------------------------------------------- In the class action lawsuit captioned as BARBARA GALVAN and CYNTHIA PROVENCIO, on behalf of themselves, all others similarly situated, v. FIRST STUDENT MANAGEMENT, LLC, a Delaware limited liability company; FIRST STUDENT, INC., a Delaware corporation; FIRSTGROUP AMERICA, INC., a Delaware corporation; FIRST TRANSIT, INC., a Delaware corporation; and DOES 1 through 50, inclusive, Case No. 4:18-cv-07378-JST (N.D. Cal.), the Parties enter a stipulation seeking an order to further continue the deadlines for the class certification briefing schedule and hearing date as follows: Current New Deadline Deadline -- Opposition to Motion for Jan. 13, 2022 Feb. 3, 2022 Class Certification: -- Reply to Opposition to Feb. 3, 2022 March 31, 2022 Motion for Class Certification -- Hearing on Plaintiff's March 3, 2022 April 28, 2022 Motion for Class Certification: On August 9, 2021, this Court extended the deadline for Plaintiffs to file a Motion for Class Certification and continued the briefing schedule on that motion. The Plaintiffs were to file their Motion by October 14, 2021, the Defendants' Opposition deadline was set for December 16, 2021, and Plaintiff's Reply was set for January 10, 2022. On October 14, 2021, Plaintiffs filed their Motion for Class Certification. The Defendants indicated that they would like to take the depositions of class members whose declarations were offered in support of the motion and Plaintiffs' data analytics expert who also offered a declaration in support of the motion, and the Parties met and conferred to schedule the depositions in November and December. First Student provides bus transportation services. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3KaiHMG at no extra charge.[CC] The Plaintiff is represented by: Joseph Lavi, Esq. Vincent C. Granberry, Esq. Anwar D. Burton, Esq. LAVI & EBRAHIMIAN, LLP 8889 West Olympic Boulevard, Suite 200 Beverly Hills, CA 90211 Telephone (310) 432-0000 Facsimile (310) 432-0001 E-mail: jlavi@lelawfirm.com vgranberry@lelawfirm.com aburton@lelawfirm.com The Defendants are represented by: Shaun Setareh, Esq. William M. Pao, Esq. Nolan Dilts, Esq. SETAREH LAW GROUP 9665 Wilshire Blvd., Suite 430 Beverly Hills, CA 90212 Telephone (310) 888-7771 Facsimile (310) 888-0109 E-mail: shaun@setarehlaw.com william@setarehlaw.com nolan@setarehlaw.com - and - David J. Dow, Esq. LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101 Telephone: (619) 232-0441 Facsimile: (619) 232-4302 E-mail: ddow@littler.com FIRSTCASH HOLDINGS: Robbins Geller Reminds of March 15 Deadline --------------------------------------------------------------- The law firm of Robbins Geller Rudman & Dowd LLP on Jan. 16 disclosed that it has filed a class action lawsuit seeking to represent purchasers of FirstCash Holdings, Inc. (NASDAQ: FCFS) common stock between February 1, 2018 and November 12, 2021, inclusive (the "Class Period"), and charging FirstCash and certain of its top executives with violations of the Securities Exchange Act of 1934. The FirstCash class action lawsuit was commenced on January 14, 2022 in the Northern District of Texas and is captioned Genesee County Employees' Retirement System v. FirstCash Holdings, Inc., No. 22-cv-00033. The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. You can view a copy of the complaint by clicking here. If you suffered significant losses and wish to serve as lead plaintiff of the FirstCash 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 FirstCash class action lawsuit must be filed with the court no later than March 15, 2022. CASE ALLEGATIONS: FirstCash owns and operates pawn stores in the United States and Latin America. Through its pawn stores, FirstCash provides non-recourse pawn loans and buys merchandise from customers to allow them to meet short-term cash needs. In September 2016, FirstCash finalized its merger with pawnshop provider and payday lender Cash America International, Inc. In November 2013, Cash America entered into a Consent Order with the Consumer Financial Protection Bureau ("CFPB") for making loans to covered members of the military or their dependents in violation of the Military Lending Act ("MLA"), violations relating to debt collection, failure to prevent or timely detect problematic conduct due to inadequate internal compliance, and failure to maintain required records (the "Order"). In the Order, Cash America agreed to cease and desist from the violations and to implement a plan designed to ensure its future compliance with the terms of the Order. The CFPB fined Cash America $5 million and ordered it to deposit $8 million into an account in order to provide redress to affected consumers. The FirstCash class action lawsuit alleges that, throughout the Class Period, defendants made false and misleading statements and failed to disclose that: (i) FirstCash had made more than 3,600 loans to over 1,000 active-duty members of the military and their families at usurious interest rates above 36% -- and often exceeding 200% -- in violation of the MLA and the Order; (ii) FirstCash had failed to implement the remedial measures imposed by the Order; (iii) FirstCash's financial results were, in substantial part, the product of FirstCash's violations of the MLA and the Order; and (iv) as a result, FirstCash was exposed to a material undisclosed risk of legal, reputational, and financial harm if FirstCash's violations of the MLA and the Order were ever publicly disclosed. On November 12, 2021, the CFPB announced that it had filed a complaint against FirstCash for violations of the MLA and the Order. The CFPB complaint alleged that "between June 2017 and May 2021 (the only period for which the Bureau currently has Defendants' transactional data), [FirstCash and its subsidiary Cash America West, Inc.] together made over 3,600 pawn loans to more than 1,000 covered borrowers in Arizona, Nevada, Utah, and Washington." The CFPB found that, in all of the loans at issue, FirstCash imposed interest rates over 36%, with rates frequently exceeding 200%. Additionally, the CFPB found that FirstCash's usurious loan practices had been ongoing since at least October 2016 in violation of the Order. A CFPB release describing the agency's action against FirstCash stated that FirstCash had "cheated" and "gouged" military families and "robbed them of their rights to go to court." On this news, the price of FirstCash common stock declined approximately 28% the following two trading days, damaging investors. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased FirstCash common stock during the Class Period to seek appointment as lead plaintiff in the FirstCash 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 FirstCash class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the FirstCash class action lawsuit. An investor's ability to share in any potential future recovery of the FirstCash 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 that year, more than double the amount recovered by any other securities plaintiffs' firm. Please visit http://www.rgrdlaw.comfor more information. Attorney advertising. Past results do not guarantee future outcomes. Services may be performed by attorneys in any of our offices. Contact: Robbins Geller Rudman & Dowd LLP 655 W. Broadway, San Diego, CA 92101 J.C. Sanchez, 800-449-4900 jsanchez@rgrdlaw.com [GN] FLORIDA INTERNATIONAL: Motion to Compel Filed in House Class Suit ----------------------------------------------------------------- In the putative class action lawsuit styled GRANT HOUSE, SEDONA PRINCE, and TYMIR OLIVER, individually and on behalf of all others similarly situated v. FLORIDA INTERNATIONAL UNIVERSITY, Case No. 1:22-mc-20214-DPG, the Plaintiffs filed a motion with the U.S. District Court for the Southern District of Florida on January 18, 2022 to compel nonparty Florida International University (FIU) to comply with a properly served subpoena seeking the production of documents, dated September 21, 2021, or, in the alternative, to transfer this motion to the Northern District of California, where the underlying litigation is pending, Case No. 4:20-cv-03919-CW. The Plaintiffs are college athletes asserting antitrust challenges to current and former National Collegiate Athletic Association rules prohibiting them from benefiting financially from their names, images, or likenesses (NILs). FIU, while a nonparty to the litigation, is an NCAA member school and a party to, and beneficiary of, the challenged agreements to restrain trade. It is in possession of crucial discoverable information that cannot be obtained through other means. FIU has refused to engage in meaningful, good-faith negotiations and has not produced any information in response to the Plaintiffs' subpoena. The Plaintiffs seek here to compel production of only four categories of documents: (1) documents or data relating to endorsement, sponsorship, or other NIL licensing agreements entered into by FIU athletes and disclosed to FIU under state law and university policy; (2) team "Squad Lists" that NCAA member schools are required to generate annually in accordance with NCAA rules; (3) corresponding financial aid summary reports; and (4) FIU's athletics-related media, sponsorship, and similar contracts. Florida International University is a public research university located in Miami, Florida. [BN] The Plaintiffs are represented by: Cristina I. Calvar, Esq. Adam I. Dale, Esq. WINSTON & STRAWN LLP 200 Park Avenue New York, NY 10166-4193 Telephone: (212) 294-6700 Facsimile: (212) 294-4700 E-mail: ccalvar@winston.com aidale@wisnton.com - and – Jeanifer E. Parsigian, Esq. WINSTON & STRAWN LLP 101 California Street San Francisco, CA 94111-5840 Telephone: (415) 591-1000 Facsimile: (415) 591-14000 E-mail: jparsigian@winston.com FORESTERS LIFE: Court Tosses Siino Class Certification Bid ---------------------------------------------------------- In the class action lawsuit captioned as PAMELA SIINO v. FORESTERS LIFE INSURANCE AND ANNUITY COMPANY, Case No. 4:20-cv-02904-JST (N.D. Cal.), the Hon. Judge Jon S. Tigar entered an order denying class certification. Before the Court is Plaintiff Pamela Siino's motion for class certification. Because Siino fails to identify a damages model capable of measuring damages on a classwide basis, the Court will deny the motion. In this motion for class certification, Plaintiff Pamela Siino seeks to represent a class of policyholders whose California life insurance policies were terminated by Defendant Foresters Life Insurance and Annuity Company for nonpayment without receiving the protections required by the Statutes. The class is defined as: "All owners, or beneficiaries upon the death of an insured, of Defendant's individual life insurance policies issued or delivered in California and in force on or after January 1, 2013 where Defendant terminated the policies for non-payment of premium without first providing all of the following: a policy containing a 60-day grace period (and an actual 60-day grace period in practice); a 30-day notice of pending lapse and termination; and an annual notice of a right to designate at least one other person to receive notice of lapse or termination of a policy for nonpayment of premium." Siino claims that Foresters did not follow the Statutes' requirements with respect to 12 policies issued before 2013, when the Statutes became effective, thereby wrongfully depriving those policyholders whose policies were already in effect of those protections. She alleges that Foresters' failure to afford these protections breached its contract with policyholders and violated California's unfair competition law. She seeks damages for breach of contract; restitution and injunctive relief for her UCL claim; and declaratory relief. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3FsOC7C at no extra charge.[CC] GENERAL ELECTRIC: Somers Appeals Summary Judgment in Labor Suit --------------------------------------------------------------- Plaintiff Bruce Somers filed an appeal from a court ruling entered in the lawsuit entitled BRUCE SOMERS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. GENERAL ELECTRIC COMPANY, Case No. 2-20-cv-00704, in the United States District Court for the Western District of Pennsylvania. The lawsuit was removed from the Pennsylvania Court of Common Pleas, Allegheny County, to the U.S. District Court for the Western District of Pennsylvania on May 13, 2020. Mr. Sommers brings this lawsuit as a class action for breach of contract, or in the alternative as unjust enrichment, and under the Pennsylvania Wage Payment and Collection Law on behalf of himself and all other similarly situated individuals who were employed by GE in the GE Transportation business unit, who were separated from GE on February 25, 2019, and who were not paid for earned but unused vacation days at the time of their separation. On July 8, 2021, Chief Magistrate Judge Cynthia Reed Eddy entered a Report and Recommendation recommending that a motion for summary judgment filed by General Electric Company be granted. On January 7, 2022, Judge W. Scott Hardy entered a Memorandum Order and Judgment holding that Plaintiff's Objections to the Report and Recommendation are OVERRULED, and the R&R is ADOPTED as the Opinion of the Court; and Defendant's Motion for Summary Judgment is GRANTED for the reasons set forth in the R&R. The Plaintiff seeks a review of the Court's Judgment. The appellate case is captioned as Bruce Somers v. General Electric Co., Case No. 22-1093, in the United States Court of Appeals for the Third Circuit, filed on Jan. 14, 2022.[BN] Plaintiff-Appellant BRUCE SOMERS, individually and on behalf of all others similarly situated, is represented by: Derrek W. Cummings, Esq. Larry A. Weisberg, Esq. WEISBERG CUMMINGS 2704 Commerce Drive, Suite B Harrisburg, PA 17103 Telephone: (717) 238-5707 E-mail: dcummings@weisbergcummings.com lweisberg@weisbergcummings.com Defendant-Appellee GENERAL ELECTRIC CO. is represented by: James A. Holt, Esq. REED SMITH 225 Fifth Avenue, Suite 1200 Pittsburgh, PA 15222 Telephone: (412) 288-4173 E-mail: jholt@reedsmith.com GILL INDUSTRIES: Court Denies Bid to Certify Class in Walters Suit ------------------------------------------------------------------ In the case, LORI WALTERS, in her individual capacity and on behalf of all others similarly situated, Plaintiff v. GILL INDUSTRIES, INC., et al., Defendants, Civil Action No. 5:21-069-DCR (E.D. Ky.), Judge Danny C. Reeves of the U.S. District Court for the Eastern District of Kentucky, Central Division, Lexington, denied Walters' motion to certify a class of current and former employees of Gill. I. Background Plaintiff Walters seeks to certify a class of current and former employees of Gill based on her claims that Gill failed to pay its employees bonuses as promised under retention agreements. Walters alleges that her former employer, Gill, entered into written agreements ("Retention Agreements") with her and other employees in which Gill promised to pay bonuses in exchange for work the employees performed while Gill searched for a buyer for its manufacturing facility located in Richmond, Kentucky. Walters contends that she and the other employees who entered into Retention Agreements provided the agreed upon labor, but Gill refused to provide the bonus payments as promised. Walters asserts the following claims on behalf of herself and the proposed class: Fraud and fraud in the inducement; breach of contract; unjust enrichment; negligent misrepresentation; civil conspiracy; and joint enterprise. She defines the proposed class as "any and all current and former employees of the Defendants who entered in a Retention Agreement with Gill Industries, Inc., and who were and are citizens of the Commonwealth of Kentucky ("Proposed Class Plaintiffs")." Walters now seeks to narrow the class definition as follows: "Any and all current and former employees of Defendants' Richmond Plant who entered into a Retention Agreement with Gill Industries, Inc. between March 10-12, 2020 and who were and are citizens of the Commonwealth of Kentucky." The Defendants oppose class certification, but do not object to Walters' narrowing of the class definition. They also object and/or seek clarification on various issues, including: "a class definition including 'current and former employees' of an unlisted employer;" "a class definition including 'current' employees when no Defendant entity employs employees currently;" and the operative date for determining whether class members are citizens of the Commonwealth of Kentucky. II. Discussion Rule 23 of the Federal Rules of Civil Procedure sets forth the requirements for maintaining a class action. For the Court to certify a class, the proposed class must satisfy all of the threshold requirements of Rule 23(a): Numerosity, commonality, typicality, and adequacy of representation. If each of these four prerequisites is established, the plaintiffs must then show that the class may be maintained under one of the theories available under Rule 23(b). District courts have broad discretion in certifying a class action within the framework of Rule 23. The party seeking to certify a class bears the burden of establishing that certification is proper. A class action may not be approved simply "by virtue of its designation as such in the pleadings," nor may prospective class representatives simply rely upon "mere repetition of the language of Rule 23(a)" to support their motion. Instead, an adequate basis for each prerequisite must be pleaded and supported by the facts. Certification is proper only if the Court determines, "after a rigorous analysis, that the prerequisites of Rule 23(a)" are satisfied. The Plaintiff alleges that the proposed class contains "over 200 members." In support, she provides a list of 214 former Gill Industries employees who signed Retention Agreements. The Defendants contend that the actual number of potential class plaintiffs is significantly lower because the list of employees who signed Retention Agreements includes employees who were terminated for cause and those who have signed release agreements. Walters responds that, taking into account these concerns, the proposed class is still approximately 200 individuals. While it is the Plaintiff's burden to establish numerosity, precise quantification on the part of the party seeking class certification is not required. Judge Reeves assumes, for purposes of his analysis, that the proposed class includes approximately 200 members. Other district courts within the Sixth Circuit have concluded that a class of 40 or more members is generally sufficiently to satisfy the numerosity requirement. Judge Reeves finds that the proposed class size in "neither insignificant nor overwhelmingly large as to be prohibitive of joinder." Accordingly, he considers the following factors in addition to hard numbers: "(1) judicial economy arising from the avoidance of a multiplicity of actions; (2) the geographic dispersion of class members; (3) the financial resources of class members; (4) the ability of claimants to institute individual lawsuits; (5) the amount of each member's individual claim; (6) knowledge of the names and existence of the potential class members; and (7) whether potential class members have already joined other actions." On one hand, judicial economy is served by consolidating multiple claims into one action. On the other, class actions have inherent management problems that other cases lack. The Defendants contend that the consideration of geographic dispersion of the proposed class members weighs against certification because all the class members reside in Kentucky. In reply, Walters cites Beckhart v. Jefferson Cnty. Public Schs., 2017 WL 4125758 (W.D. Ky. Sept. 18, 2017), a case in which the district court certified a class even though the potential class members "likely lived in the area." However, in Beckhart, the proposed class exceeded 700 members and, due to the small amount potentially owed to each class member, it would have been cost-prohibitive for them to pursue the claims individually. Judge Reeves is aware of no factors in the instant case that would impede the proposed class members' ability to institute lawsuits on their own. They are former Gill Industries employees and, based on the depositions filed in the record, many of them are likely current Challenge employees. Accordingly, there is nothing to suggest that they are intellectually or economically disadvantaged such that they could not pursue their own claims. Further, Judge Reeves opines that the Plaintiff has provided a sealed document stating the proposed class members' names and indicating that the amount of damages for each class member exceeds several thousand dollars. Judge Reeves is not persuaded that class certification is a preferable method of adjudicating these claims. The number of potential plaintiffs is not so high that joinder is impracticable, particularly considered in conjunction with the facts that their identities are known and they are confined to a small geographic area. Additionally, there is nothing to suggest that the potential plaintiffs do not have the ability to seek redress on their own especially if, as Walters contends, they each stand to recoup a substantial sum of damages from the Defendants. The Plaintiff must meet all prerequisites listed in Rule 23(a); if she cannot meet any one prerequisite, her motion for class certification fails. Thus, Judge Reeves need not address the remaining factors under Rule 23 because Walters cannot satisfy the numerosity requirement. III. Order Based on the foregoing, Judge Reeves concludes that Walters has not shown that the proposed class is so numerous that joinder of all members is impracticable. He denied Walters' motion for class certification. He denied as moot Walters' motion to postpone ruling on her motion for partial summary judgment pending the Court's ruling on class certification. A full-text copy of the Court's Jan. 11, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/yzsttdyh from Leagle.com. GOOGLE LLC: CLRA Violation and Fraud Claims in Kumandan Suit Tossed ------------------------------------------------------------------- In the case, ASIF KUMANDAN, et al., Plaintiffs v. GOOGLE LLC, et al., Defendants, Case No. 19-cv-04286-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, granted Google's Motion to Dismiss Counts 8 and 9 of Plaintiffs' Fourth Amended Consolidated Class Action Complaint without leave to amend. I. Introduction Before the Court is the Defendants Alphabet Inc. and Google's Motion to Dismiss Counts 8 and 9 of Plaintiffs' Fourth Amended Consolidated Class Action Complaint. Claim 8 is for violation of California's Consumer Legal Remedies Act ("CLRA") and Claim 9 is for common law fraud brought by Plaintiffs Edward Brekhus and Jon Hernandez based on Google's alleged reconfiguring of Google Assistant-enabled devices in 2020 to activate based on certain "alarm events" like the sound of breaking glass or a smoke alarm. Brekhus and Hernandez allege that this reconfiguration was contrary to Google's representations that these devices only activated in response to voice commands or other forms of user control. Google moves to dismiss Brekhus and Hernandez's CLRA and common law fraud claims, arguing that the Plaintiffs' allegations fail to meet the Rule 9(b) standard for pleading fraud claims "with particularity," including because Google's reconfiguration of Google Home devices was due to a software bug, and Google rolled back the feature shortly after its introduction. The Plaintiffs argue that they have alleged sufficient facts to support the CLRA and common law fraud claims. II. Background The seven Named Plaintiffs are residents of New York and California who allege they owned Google Assistant-enabled devices during the Class Period. Brekhus and Hernandez are residents of California. The Defendants are Delaware companies with their principal place of business in California, who manufacture and sell hardware and software products. The Plaintiffs' claims pertain to Google's alleged privacy violations related to its hardware devices capable of running the Google Assistant software ("Google Assistant-enabled devices" or "GAEDs"), including the Google Home devices owned by Brekhus and Hernandez. Google Assistant allows users to activate and interact with these devices using voice commands or other forms of manual activation, like pressing a button. To use a GAED, a user must sign up for a Google Account and agree to Google's Terms of Service and Privacy Policy. The Plaintiffs allege that based on Google's public representations, Terms of Service, and their reasonable expectation of privacy, GAEDs were only able to record, transmit, and process sound after being activated based on voice commands or manual activation. However, the Plaintiffs allege that in fact, GAEDs could activate in other circumstances, including to collect data to improve the speech recognition abilities of GAEDs and based on "alarm events" like the sound of breaking glass or a smoke alarm. They allege that GAEDs improperly transmit sound files recorded without users' consent, including to unauthorized third-party contractors. At issue in the Motion are Brekhus and Hernandez's claims based on Google's alleged misrepresentations regarding its devices' ability to activate in response to "alarm events" based on (1) violation of the CLRA (claim 8) and (2) common law fraud, deceit, and/or misrepresentation (claim 9). The Plaintiffs amended their allegations in the Fourth Amended Complaint. First, at paragraph 107 of the Fourth Amended Complaint, Plaintiffs added that Google reconfigured its GAEDs "in 2020." Second, the Plaintiffs added the allegations related to (1) Google's patent activity between 2016 and 2018 related to "alarm event" activation of GAEDs and (2) Google's partnership with ADT starting in 2018. Third, they added paragraphs 275 through 279 and 285 through 289 to its allegations in support of its CLRA and common law fraud claims, which allege facts related to (1) Brekhus and Hernandez's reliance on Google's representations and (2) Google's intent to get GAEDs into user's homes on promises about privacy before reconfiguring them to offer home security functionality. Fourth, they removed the allegations in support of their common law fraud claim related to "adequate security measures." The question before the Court is whether the Plaintiffs' amendments to their allegations in the Fourth Amended Complaint are sufficient to change the Court's prior conclusion that they have not alleged enough facts to meet the Rule 9(b) standard for Brekhus and Hernandez's CLRA and common law fraud claims. Google argues that the Plaintiffs have continued to fail to allege sufficient facts including by failing to plead with particularity (1) a single misrepresentation or actionable omission by Google; (2) Google's knowledge that the alleged misrepresentations were false when made prior to 2018 and 2019; (3) Google's duty to disclose facts in support of the Plaintiffs' fraud by omission theory; (4) Google's intent to defraud the Plaintiffs; (5) Brekhus and Hernandez's justifiable and detrimental reliance on the alleged misrepresentations; or (6) Brekhus and Hernandez's injury from the alleged fraud. In response, the Plaintiffs argue that they have adequately alleged each of the elements required for their fraud claims. III. Discussion A. Request for Judicial Notice Google requests that the Court take judicial notice of two exhibits. The Plaintiffs do not oppose Google's request. First, Google requests that the Court takes judicial notice of Exhibit A--an article regarding the 2020 introduction and rollback of "alarm event" detection capabilities in GAEDs that the Plaintiffs cite in the Fourth Amended Complaint. Since the Plaintiffs repeatedly cite to the article and they rely on it for a significant part of their alleged facts in support of the theory based on GAED's reconfiguration to detect "alarm events," Judge Freeman granted Google's request for judicial notice of Exhibit A. Second, Google requests that the Court takes judicial notice of Exhibit B—a publicly available blogpost on Google's website published on Oct. 15, 2019 regarding Google's Nest Aware subscription service, including details about the ability of Google Home devices to listen for "critical sounds, like smoke or carbon monoxide alarms" through the service. While this document is not incorporated by reference in the complaint, its existence is a judicially noticeable fact and Plaintiffs do not dispute its contents, so Judge Freeman granted Google's request for judicial notice of Exhibit B. B. Claims 8 and 9 Google moves to dismiss Brekhus and Hernandez's CLRA and common law fraud claims. Fraud allegations must be pled "with particularity." To satisfy Rule 9(b), "a pleading must identify the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading about the purportedly fraudulent statement, and why it is false." Rule 9(b)'s heightened pleading standard extends to Brekhus and Hernandez's CLRA claim as it sounds in fraud. Judge Freeman finds that the Plaintiffs have failed to adequately plead fraud under Rule 9(b) due to their failure to allege sufficient facts in support of an actionable omission, Google's knowledge of falsity, or Google's intent to defraud Brekhus and Hernandez. She finds that the Plaintiffs have (i) failed to adequately allege omissions based on the theory that Google omitted information about "alarm event" detection "contrary to a representation actually made by" Google; (ii) failed to adequately allege that Google had a duty to disclose under any of the LiMandri factors; (iii) failed to adequately allege an actionable omission stemming from Google's representations about GAEDs being voice activated; (iv) failed to plead sufficient facts in support of Google's intent to defraud at the time of the alleged misrepresentations; (v) adequately alleged justifiable reliance; and (vi) adequately alleged economic injury on the part of Brekhus and Hernandez. Accordingly, Judge Freeman will grant Google's motion to dismiss Brekhus and Hernandez CLRA and common law fraud claims. C. CLRA Claim Google argues that Brekhus cannot bring a claim under the CLRA, because he does not meet the statute's definition of a "consumer." Under the CLRA, a "consumer" is "an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes." The Plaintiffs allege that Brekhus obtained his Google Home Mini through a promotion by Spotify whereby individuals with a paid Spotify subscription could obtain a free Google Home Mini. Judge Freeman disagrees with Google. She says, while Brekhus did not pay Google in exchange for a Google Home Mini, the Plaintiffs allege that Brekhus paid Spotify and ordered his Google Home Mini directly from Google. Further, the Plaintiffs allege that Brekhus entered into a purchase transaction with Google directly. As alleged, Brekhus was a direct purchaser from Google. Judge Freeman finds that the Plaintiffs' allegations are sufficient to state a claim that Brekhus was a "consumer" under the CLRA. Accordingly, she will not dismiss Brekhus' CLRA claim on the basis that he was not a "consumer" under the CLRA. D. Leave to Amend The Court has previously dismissed Brekhus and Hernandez's CLRA and common law fraud claims, including for failure to adequately plead Google's intent to defraud. As Judge Freeman outlines, the Plaintiffs' allegations are again insufficient to support the CLRA and common law fraud claims because of the inadequacy of their intent to defraud allegations. Accordingly, Judge Freeman finds it is appropriate to deny them leave to amend, because they have shown a repeated failure to cure deficiencies in their CLRA and common law fraud claims by amendment. Further, given that the main deficiency in the Plaintiffs' intent to defraud allegations is the significant time gap between Brekhus and Hernandez's purchase of GAEDs and the introduction of the "alarm event" detection feature, it is unclear to the Court how the Plaintiffs will be able to avoid this time gap through amendment of their pleadings. Accordingly, Judge Freeman finds that amendment of Brekhus and Hernandez's CLRA and common law fraud claims would be futile. Her dismissal of Brekhus and Hernandez's CLRA and common law fraud claims is without leave to amend. IV. Order For the foregoing reasons, Judge Freeman granted Google's Motion to Dismiss Claims 8 and 9 of the Fourth Amended Complaint is without leave to amend. A full-text copy of the Court's Jan. 11, 2022 Order is available at https://tinyurl.com/nhs85662 from Leagle.com. GOOGLE LLC: Singh Loses Class Certification Bid ----------------------------------------------- In the class action lawsuit captioned as Gurminder Singh v. Google LLC, Case No. 5:16-cv-03734-BLF (N.D. Cal.), the Hon. Judge Beth Labson Freeman entered an order denying Singh's motion for class certification of: "All persons and entities throughout the United States who advertised through Google's AdWords program and paid for clicks on their Google AdWords advertisement(s) at any time since June 1, 2012 (the Class Period), where such clicks originated from Google's Display Network." The existing case schedule remains in effect, says Judge Freeman. Because the alleged misrepresentations on which Singh bases his theory of liability are not guarantees that all click fraud is detected, and Singh's damages model seeks damages in a way that would make Google the guarantor that all click fraud is detected, Singh's damages model is not tethered to his theory of liability and violates Comcast. Singh thus fails to meet the requirements of Rule 23(b)(3) and cannot certify a class under that provision of Rule 23, Judge Freeman added. This case concerns the AdWords program run by Defendant Google LLC. Through AdWords, Google sells to individuals and businesses of all sizes pay-per-click advertisements that are displayed on the Google Display Network, which consists of Google.com, other Google 16 (such as YouTube and Gmail), and third-party sites who enroll in Google's separate AdSense program. The Plaintiff Singh, a small business owner, signed up for AdWords in January 2008 and now controls multiple AdWords accounts. Singh alleges that Google deceives advertisers who use AdWords by making false and misleading statements concerning (1) how effectively Google identifies and filters out invalid and fraudulent clicks on advertisements; and (2) the proportion of total AdWords clicks that constitute invalid and fraudulent clicks. These misrepresentations allegedly induced him to sign up for AdWords and then pay for more invalid and fraudulent clicks than Google represented he would pay for. Google LLC is an American multinational technology company that specializes in Internet-related services and products, which include online advertising technologies, a search engine, cloud computing, software, and hardware. A copy of the Court's order dated Jan. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3fqW88f at no extra charge.[CC] GULFPORT ENERGY: New York Court Tosses Woodley's 2nd Amended Suit ----------------------------------------------------------------- In the case, ROBERT F. WOODLEY, individually and on behalf of all others similarly situated, Plaintiff v. DAVID M. WOOD, KERI CROWELL, and QUENTIN R. HICKS, Defendants, Case No. 20 Civ. 2357 (ER) (S.D.N.Y.), Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York granted the Defendants' motion to dismiss the Plaintiff's second amended complaint for failure to state a claim. I. Introduction On March 17, 2020, the putative class action was brought under federal securities laws against Gulfport and its top officers. A first amended complaint was filed on April 1, 2021 pursuant to a stipulation between the parties. The Plaintiffs filed a second amended complaint as a matter of course on July 8, 2021 in response to a motion to dismiss filed on June 16, 2021. The complaint alleges that the Defendants violated federal securities laws by making materially false and misleading statements concerning the manner in which they accounted for their oil and gas properties. II. Background Gulfport is a Delaware oil and gas corporation with its principal executive office in Oklahoma City, Oklahoma. The case involves Gulfport's accounting for its oil and gas properties in Eastern Ohio and Central Oklahoma. The oil and gas industry faces unique accounting problems due to the non-regenerative nature of the resource, large capital requirements, and abnormally high risks. To respond to these challenges, the SEC allows two accounting methodologies: The "successful efforts" approach and the "full cost" approach, which differ in terms of how costs associated with properties are accounted for. The SEC specifies how to apply each approach. Gulfport uses the full-cost accounting approach, as set forth in SEC Rule 4-10(c) of Regulation S-X. This approach distinguishes between "proved properties" -- oil and gas assets with proved reserves that can be estimated with reasonable certainty -- and "unproved properties" -- oil and gas assets with no proved reserves. The full-cost approach then capitalizes all costs associated with both proved and unproved properties, but later amortizes and depletes, or recognizes as an expense, the costs associated with proved properties, abandoned properties, and properties that have undergone "complete evaluation" (collectively, the "Amortization Base"). The full-cost approach also requires a quarterly ceiling test to limit total capitalized costs so that they do not exceed an amount, known as the "cost center ceiling," equal to the sum of (1) projected future revenues, less expenses, from proved reserves, with a discount factor of 10%; (2) the cost of properties not included in the Amortization Base; (3) the lower of cost or estimated fair value of unproved properties included in the Amortization Base; and (4) certain income tax effects associated with certain classes of properties. If the cost center ceiling is exceeded in a given quarter, the excess is "charged to expense" and "shall not be reinstated for any subsequent increase in the cost center ceiling." Gulfport issued a press release with their Q3 2019 financial statements on Oct. 31, 2019, reporting a net loss of $48.8 million for the three months ending Sept. 30, 2019 and net income of $248.4 million for the nine months ending Sept. 30, 2019. Gulfport issued a press release with their Q4 2019 and FY 2019 financial results on Feb. 27, 2020. The same day, Gulfport issued a second press release further explaining the accounting error. Gulfport revised its Q3 2019 financial statements to reflect a $571.4 million third-quarter impairment of its oil and gas properties, as opposed to the $35.6 million it originally reported, a $484.8 million third quarter net loss, as opposed to $48.8 million, and a $163.2 million third quarter depreciation, deduction, and amortization expense, as opposed to $145.5 million. It also revised language concerning their internal controls, procedures, and risk factors, and issued new SOX Certifications (required to comply with the Sarbanes-Oxley Act) to identify the issues that caused the accounting error. On March 17, 2020, Robert Woodley filed suit against Defendants Gulfport, David Wood (former CEO), Keri Crowell (CFO until August 2019), and Quentin Hicks (CFO from August 2019 to May 2021) alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. The lawsuit was filed as a putative class action on behalf of all persons who purchased or otherwise acquired Gulfport securities between May 3, 2019 and Feb. 27, 2020. On Feb. 8, 2021, the Court appointed Joseph Rotunno as lead plaintiff in the matter and stayed the matter as to Gulfport due to Chapter 11 bankruptcy proceedings. On Feb. 17, 2021, the parties stipulated to the filing of the first amended complaint, which was filed on April 1, 2021. The Defendants then filed a motion to dismiss on June 16, 2021. In response, the Plaintiffs filed a second amended complaint as a matter of course on July 8, 2021, mooting the Defendants' first motion to dismiss. The second amended complaint alleges that Defendants issued false and misleading statements and material omissions related to the 2019 filings. The Defendants now move to dismiss the second amended complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. III. Discussion A. Motive and Opportunity to Defraud The Defendants contest only the second element of the claim, arguing that the Plaintiffs have not shown the required strong inference of scienter, which on its own is enough to warrant dismissal. They first argue that the complaint does not plead a motive and opportunity to defraud because it does not plead a concrete and personal benefit. Judge Ramos opines that the complaint more broadly alleges that the Defendants faced pressure from shareholders to improve Gulfport's financial results and thereby protect their positions in the company from the threat of a proxy contest. Most corporate officers face these threats as part of their role, and Judge Ramos is not persuaded that the shareholder press releases excerpted in the complaint create a unique motive significant enough to satisfy the high PSLRA threshold for scienter. The complaint thus does not establish motive and opportunity to commit fraud. The Defendants next argue that the complaint does not plead facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness. They argue that the complaint alleges no facts suggesting knowledge of contradictory information, nor any sources by which Defendants could have obtained such knowledge. However, the Plaintiffs argue that they have sufficiently plead scienter based on eight allegations of circumstantial evidence that holistically raise an inference of scienter. Judge Ramos finds that several of the Plaintiffs' arguments are essentially arguments that the occurrence of the accounting errors that led to the restatement is itself evidence of fraudulent intent. Such arguments are weak absent more concrete circumstantial evidence of actual scienter, as mistakes can be made without fraudulent intent. The Plaintiffs' other arguments are not alleged with sufficient specificity or do not individually raise a strong inference of scienter. Even collectively, their allegations do not come close to showing the required level of "highly unreasonable" conduct that is "an extreme departure from the standards of ordinary care." The Defendants' suggested inference that they discovered, disclosed, and corrected the accounting errors within a relatively short period of time with no fraudulent intent is simply more compelling. Hence, the Plaintiffs' claim of scienter therefore cannot stand. For these reasons, the Defendants' motion to dismiss the claims under Section 10(b) and Rule 10b-5 is will be granted. B. Section 20(a) Section 20(a) of the Exchange Act imposes liability on individuals who control any person or entity that violates section 10. See 15 U.S.C. Section 78t(a). To assert a prima facie case under Section 20(a), a plaintiff 'must show a primary violation by the controlled person and control of the primary violator by the targeted defendant, and show that the controlling person was in some meaningful sense a culpable participant in the fraud perpetrated by the controlled person.' Judge Ramos explains that liability for a Section 20(a) violation is derivative of liability for a Section 10(b) violation. Because the Plaintiffs have inadequately pled a Section 10(b) violation, they cannot make a successful Section 20(a) claim. Consequently, the Defendants' motion to dismiss the Plaintiffs' Section 20(a) claim is will be granted. C. Leave to Amend The Plaintiff requests leave to amend the complaint in the event the Court grants the Defendants' motion. Federal Rule of Civil Procedure 15 instructs courts to "freely give leave to amend a pleading when justice so requires." The Second Circuit has instructed courts not to dismiss a complaint "without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." In the case, although the Plaintiffs have already had the opportunity to amend their original complaint, because this is the Court's first opportunity to highlight the precise defects of the Plaintiffs' pleading and it is not yet apparent that another opportunity to amend would be futile, Judge Ramos will permit the Plaintiffs to replead their dismissed claims. IV. Conclusion For the foregoing reasons, Judge Ramos granted the Defendants' motion to dismiss. The Plaintiffs may file a third amended complaint, if at all, by Feb. 11, 2022. The Clerk of Court is respectfully directed to terminate the motion, Doc. 66. A full-text copy of the Court's Jan. 11, 2022 Opinion & Order is available at https://tinyurl.com/2p8vv3bx from Leagle.com. GUNITE PROS: Conditional Certification Amended in Troxel Suit ------------------------------------------------------------- In the class action lawsuit captioned as MICHAEL TROXEL, etc., v. GUNITE PROS, LLC, et al., Troxel v. Gunite Pros, LLC, et al., Case No. 1:21-cv-00057-WS-N (S.D. Ala.), the Hon. Judge entered an order amending in pertinent part motion for conditional certification, to read as follows: This case is conditionally certified as an FLSA Collective Action, including both an Hourly Employees Collective and a Driver Collective and consisting of current and former employees whom Gunite Pros employed at any time between January 4, 2019 and January 4, 2022. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3qwUAjp at no extra charge.[CC] HB & H LLC: Exotic Dancers Get Class Certification in Fares Suit ---------------------------------------------------------------- In the class action lawsuit captioned as NOER FARES, individually and on behalf of all others similarly situated, v. H, B, & H, LLC, d/b/a On the Border Gentlemen's Club, GERALD HAY, and DOES 1-10, Case No. 21-CV-753 (E.D. Wisc.), the Hon. Judge Nancy J. Joseph entered an order granting plaintiff's motion for conditional class certification The following class is conditionally certified: "All of Defendants' current and former exotic dancers/entertainers who worked at On The Border Gentlemen's Club in Franklin, Wisconsin at any time starting three years before this Complaint was filed." The Plaintiff is authorized to send a class notice consistent with this opinion, says Judge Joseph. H, B, & H, LLC is an adult-orientated entertainment facility located at 10741 S. 27th Street in Franklin, Wisconsin. Gerald Hay is one of the managers/owners of OTB. The plaintiff in this case is Noer Fares. Fares alleges that she was employed as an exotic dancer/entertainer at OTB from June 2018 until May 2021. Fares alleges that the defendants engaged in a scheme to deny minimum wage payments by misclassifying her and other dancer/entertainers as independent contractors when they were in fact employees. She further alleges that the defendants illegally absconded with tips and demanded illegal kickbacks in the form of "house fees." A copy of the Court's order dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3nOid5B at no extra charge.[CC] HEALTHCARE REVENUE: Santos Appeals Class Cert. Denial in FCRA Suit ------------------------------------------------------------------ Plaintiffs Omar Santos, et al., filed an appeal from a court ruling entered in the lawsuit entitled OMAR SANTOS and AMANDA CLEMENTS on behalf of themselves and all others similarly situated v. HEALTHCARE REVENUE RECOVERY GROUP, LLC d/b/a ARS ACCOUNT RESOLUTION SERVICES and EXPERIAN INFORMATION SOLUTIONS, INC. Case No. 1:19-cv-23084, in the U.S. District Court for the Southern District of Florida. The lawsuit is an action for statutory and punitive damages, costs, and attorneys' fees brought pursuant to the Fair Credit Reporting Act. The Plaintiffs contend that the lawsuit is brought on behalf of those consumers whose Experian credit reports contain false, misleading, and inaccurate information. The Plaintiffs add that Experian willfully fails to follow reasonable procedures to assure the maximum possible accuracy of the information concerning the Plaintiffs and members of the class and fails to conduct any reasonable investigation into the accuracy of information reported by HRRG about Plaintiffs and members of the class, as required by the FCRA. As reported in the Class Action Reporter on January 5, 2022, the Hon. Judge Kathleen M. Williams entered an order: 1. adopting Torres's Report and Recommendation regarding Plaintiffs' motion for class certification; and 2. denying Plaintiffs' motion for class certification. The Plaintiffs now seek a review of this order. The appellate case is captioned as Omar Santos, et al. v. Experian Information Solutions, Inc., Case No. 22-90001, in the United States Court of Appeals for the Eleventh Circuit, filed on Jan. 4, 2022. Plaintiffs-Petitioners OMAR SANTOS and AMANDA CLEMENTS, individually, and on behalf of all others similarly situated, are represented by: Alissa Del Riego, Esq. Peter Prieto, Esq. Matthew P. Weinshall, Esq. PODHURST ORSECK, PA 1 SE 3rd Ave Ste 2300 Miami, FL 33130 Telephone: (305) 358-2800 E-mail: adelriego@podhurst.com pprieto@podhurst.com mweinshall@podhurst.com - and - Jonas Mann, Esq. Roland Tellis, Esq. BARON & BUDD, PC 15910 Ventura Blvd Ste 1600 Encino, CA 91436 Telephone: (818) 839-2333 E-mail: jmann@baronbudd.com rtellis@baronbudd.com - and - Dennis McCarty, Esq. Jonathan Raburn, Esq. MCCARTY & RABURN PLLC 2931 Ridge Road Ste 101 504 Rockwall, TX 75032 Telephone: (817) 704-3375 E-mail: dennismccartylaw@gmail.com jonathan@geauxlaw.com Defendant-Respondent EXPERIAN INFORMATION SOLUTIONS, INC. is represented by: Christina Therese Mastrucci Lehn, Esq. Ana Maria Cristina Perez Soto, Esq. JONES DAY 600 Brickell Ave Ste 3300 Miami, FL 33131 Telephone: (305) 714-9700 E-mail: cperezsoto@jonesday.com - and - William Roquemore Taylor, Esq. BLANK ROME LLP 717 Texas Ave Ste 1400 Houston, TX 77002 Telephone: (832) 239-3939 E-mail: cperezsoto@jonesday.com - and - John A. Vogt, Esq. JONES DAY 3161 Michelson Dr Ste 800 Irvine, CA 92612-4408 Telephone: (949) 851-3939 HEARTLAND EXPRESS: Bid for Summary Judgment in Freitas Suit Granted ------------------------------------------------------------------- In the case, GREGG FREITAS and RYAN CALVERT, individually and on behalf of all others similarly situated, Plaintiffs v. HEARTLAND EXPRESS, INC. OF IOWA, Defendant, Case No. 2:19-CV-00383-SAB (E.D. Wash.), Judge Stanley A. Bastian of the U.S. District Court for the Eastern District of Washington granted the Defendant's Motion for Judgment on the Pleadings as to Causes of Action Three, Nine, and Ten and Causes of Action Deriving from a Meal or Rest Break Claim. I. Background The Defendant is a trucking company that provides nationwide freight transportation services for major shippers across the United States. It employs drivers that are responsible for routes spanning thousands of miles and which keep them away from home for weeks at a time. The Plaintiffs state that, while drivers are out on the road, the Defendant does not pay for lodging except in exceptional circumstances, such as if the truck is broken down, there are weather conditions that threaten the driver's safety, or the driver needs medical attention -- but even in these circumstances, whether the driver can stay in a hotel is based on their manager's discretion. Otherwise, the driver must either pay for lodging out of pocket or stay in the truck's sleeper berth -- a space in the truck's cab with a bunk, but without a sink or a bathroom. The Plaintiffs also state that the Defendant does not schedule sleeping periods for its drivers and only considers compensable work hours to be hours explicitly logged as "on-duty" or "driving," which excludes sleeper berth time. Plaintiffs Gregg Freitas and Ryan Calvert filed their Complaint on Nov. 5, 2019. In the Complaint, both Plaintiffs sought to bring an opt-in collective action under the Fair Labor Standards Act ("FLSA") for failure to pay over-the-road truck drivers minimum wages at the statutorily mandated rate of $7.25 an hour by excluding sleeper berth time from compensable work hours and failure to keep required and accurate records of all hours worked by these drivers. The Plaintiffs defined the collective as "all individuals who are currently employed, or formerly have been employed as over-the-road truck drivers for Interstate Distributor Co. and/or Heartland Express, Inc., in the United States at any time beginning three years before the filing of this Complaint." Additionally, each Plaintiff sought to bring a class action against Defendant under their respective state laws. Plaintiff Freitas sought to bring a class action under Washington state law for failure to pay minimum wages, provide meal and rest breaks, ensure breaks are taken, and pay wages owed at termination, as well as for willfully depriving employees of full compensation and engaging in unfair or deceptive acts. He defined the class as "other similarly situated individuals who worked as over-the-road truck drivers for Defendant while residing in Washington at any time beginning four years before the filing of this Complaint through resolution of the action." Plaintiff Calvert sought to bring a class action under California state law for failure to pay minimum wages and full compensation, provide meal and rest breaks, ensure breaks are taken, pay wages owed at termination, and provide accurate, itemized wage statements. He defined the class as "other similarly situated individuals who have worked as over-the-road truck drivers for Defendant in California at any time beginning four years before the filing of this Complaint, through resolution of this action." The Plaintiffs requested that the Court certify the collective action and the two class actions, designate the Plaintiffs as the class representatives, award damages (compensatory, statutory, liquidated, treble, interest, and all other lost benefits), order the Defendant to identify all relevant employees and restore restitution, and award reasonably attorney's fees/costs. The Court issued a Scheduling Order on March 27, 2020. It gave the parties a deadline of July 31, 2020 to file a motion for conditional class certification, which it then extended to Nov. 30, 2020. The Plaintiffs filed their Motion for Conditional Certification on Nov. 30, 2020. The hearing date for the motion was originally set for Dec. 30, 2020, but was reset for a March 4, 2021 without oral argument due to the parties' request to extend briefing deadlines. On March 9, 2021, the Defendant filed a Motion to Stay Proceedings. It requested that the Court stay the case while Jacqueline Connell and Francine Adams v. Heartland Express, Inc. of Iowa, a class and collective action pending in the Central District of California, went through the preliminary settlement approval process. The Court granted the request for a stay on April 9, 2021. On June 15, 2021, the parties filed a joint status report, indicating that the Connell Court vacated its preliminary approval of the settlement. Thus, on June 22, 2021, the Court lifted the stay and reset the class certification briefing schedule. On Oct. 22, 2021, the Court granted the Plaintiffs' Motion for Equitable Tolling of the FLSA Statute of Limitations and reset the hearing date for the Plaintiffs' Motion for Conditional Certification until after class certification briefing was complete. On Nov. 1, 2021, the Defendant filed its current Motion for Judgment on the Pleadings as to Causes of Action Three, Nine, and Ten and All Causes of Action Deriving from a Meal or Rest Break Claim. The Court held a hearing on the motion by videoconference on Jan. 7, 2022. II. Analysis The Defendant requests that the Court grants judgment on the pleadings on the Plaintiffs' Third, Ninth, and Tenth Causes of Action. Specifically, these causes of action include: (3) Failure to Provide Meal and Rest Breaks and Ensure Those Breaks Are Taken, RCW 49.12.020 and WAC 296-126-092; (9) Failure to Provide Meal Periods, or Compensation in Lieu Thereof, California Labor Code Sections 226.7 and 512, and Cal. Code Regs., Title 8 Section 11090 paragraphs 7 & 11; and (10) Failure to Provide Rest Periods, or Compensation in Lieu Thereof, California Labor Code Sections 226.7 and Cal. Code Regs., Title 8 Section 11090 paragraph 12. The Defendant also requests that the Court grants judgment on the pleadings on the Plaintiffs' Sixth and Fourteenth Causes of Action -- (6) Unfair or Deceptive Acts, RCW 19.86.20 and 19.86.090; and (14) Unfair Competition and Unlawful Business Practices, California Business and Professions Code Sections 17200, et seq. -- insofar as they are derivative of the meal and rest break claims. The Defendant states that, in International Brotherhood of Teamsters, Local 2785 v. Federal Motor Carrier Safety Administration, 986 F.3d 841 (9th Cir. 2021), the Ninth Circuit upheld a December 2018 Federal Motor Carrier Safety administration ("FMCSA") decision finding that state law meal and rest break claims and all derivative claims were preempted by federal law. Thus, it argues that the Plaintiffs' meal and rest break claims are preempted and should be dismissed. The Plaintiffs in response note that the December 2018 FMCSA decision was contrary to both agency and Ninth Circuit precedent. That being said, they concede that International Brotherhood of Teamsters upheld the preemption determination and thus state that they "do not oppose dismissal of the state law meal and rest period claims." However, they instead request that the Court dismisses the claims "without prejudice and with equitable tolling." They request that the Court equitably tolls the statute of limitations on the class claims "should the Agency change its position back to what it was before the anomalous 2018 determination and re-align itself with how the Ninth Circuit has consistently ruled on the FMSCA preemption defense both before and after the Agency's 2018 determination." The Defendant in reply argues that neither dismissal without prejudice nor equitable tolling is appropriate. First, it states that, if the Court granted the motion for judgment on the pleadings, the Court would be dismissing the Plaintiffs' claims with prejudice. Second, the Defendant argues that equitable tolling is inappropriate because (1) there are no extraordinary circumstances that warrant tolling; (2) tolling would prejudice Defendants and contradict the purpose of statutes of limitation; and (3) it is an absurd outcome to allow open-ended tolling based on the uncertain prospect that the law might change and make the Plaintiffs' claims viable. Thus, it requests that the Court dismisses the Plaintiffs' state law meal and rest break claims with prejudice and without equitable tolling. Judge Bastian will grant the Defendant's motion and dismisses the Plaintiffs' claims with prejudice and without tolling. First, he finds that the Plaintiffs' state law meal and rest break claims are preempted. Multiple district courts in this Circuit have held that plaintiffs' state law meal and rest break laws are preempted under International Brotherhood of Teamsters. Thus, he similarly finds that the Plaintiffs' state law meal and rest break claims and all derivative claims are preempted. Second, Judge Bastian will dismiss the Plaintiffs' state law meal and rest break claims with prejudice. He says, he is dismissing the Plaintiffs' state law meal and rest break claims on preemption grounds. Thus, because the Plaintiffs cannot amend their claims to become viable, he will dismiss their claims with prejudice. Finally, Judge Bastian declines to equitably toll the statute of limitations on the Plaintiffs' and putative class members' claims. He finds that the Plaintiffs are essentially asking the Court to equitably toll the statute of limitations until an indefinite point in time, i.e., until either the Ninth Circuit or the FMCSA reverse their preemption decisions. However, there is no indication that either the Ninth Circuit or the FMCSA is inclined to reverse their decisions -- and even if they might be, there is no way to predict if or when that might happen. Moreover, the Ninth Circuit has rejected Plaintiffs' argument that dismissal without equitable tolling is tantamount to dismissal with prejudice. In Ford v. Piller, 590 F.3d 782 (9th Cir. 2009), a habeas petitioner argued that he was entitled to equitable tolling because the district court affirmatively misled him when it instructed him that he could dismiss his petitions "without prejudice," when in fact dismissing his petitions would result in the petitioner's claims being time-barred. But the Ninth Circuit held that the petitioner was not affirmatively misled, reasoning: Thus, Judge Bastian rejects the Plaintiffs' request to equitably toll the statute of limitations on their state law meal and rest break claims and any derivative claims. However, the Plaintiffs are free to bring a motion for reconsideration if the law changes during the pendency of the lawsuit. III. Conclusion Based on the foregoing, Judge Bastian granted the Defendant's Motion for Judgment on the Pleadings as to Causes of Action Three, Nine, and Ten and Causes of Action Deriving from a Meal or Rest Break Claim. He dismissed the Plaintiffs' Third, Ninth, and Tenth Causes of Action with prejudice. The Plaintiffs' Sixth and Fourteenth Causes of Action insofar as they are derivative of the Plaintiffs' meal and rest break claims are dismissed with prejudice. The District Court Clerk is hereby directed to file the Order and provide copies to the counsel. A full-text copy of the Court's Jan. 11, 2022 Order is available at https://tinyurl.com/5a4mb96y from Leagle.com. HELENA-WEST, AR: Doe FLSA Class Suit Removed to E.D. Arkansas ------------------------------------------------------------- The case styled JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JANE DOE 1, JANE DOE 2, and JANE DOE 3, individually and on behalf of all others similarly situated v. CITY OF HELENA-WEST HELENA, ARKANSAS, Case No. 54CV-2021-190-1, was removed from the Circuit Court of Phillips County to the U.S. District Court for the Eastern District of Arkansas on January 18, 2022. The Clerk of Court for the Eastern District of Arkansas assigned Case No. 2:22-cv-00012-BSM to the proceeding. The case arises from the Defendant's alleged failure to pay appropriate wages in violation of the Fair Labor Standards Act. City of Helena-West Helena is a municipal government in Arkansas. [BN] The Defendant is represented by: R. Justin Eichmann, Esq. Thomas N. Kieklak, Esq. 4710 S. Thompson, Suite 102 Telephone: (479) 751-6464 Facsimile: (479) 751-3715 E-mail: jeichmann@arkansaslaw.com tkieklak@arkansaslaw.com HEREFORD INSURANCE: S.D. New York Tosses MSP Recovery Class Suit ---------------------------------------------------------------- In the case, MSP RECOVERY CLAIMS, SERIES LLC, Plaintiff v. HEREFORD INSURANCE COMPANY, Defendant, Case No. 20 Civ. 4776 (ER) (S.D.N.Y.), Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York granted Hereford's motion to dismiss for lack of subject matter jurisdiction. I. Background MSP brings the putative class action against Hereford. It alleges that Hereford systematically failed to honor its primary payer obligations under the Medicare Secondary Payer Act (the "Act"), 42 U.S.C. Section 1395y, by not paying for or reimbursing medical expenses resulting from injuries sustained in automobile and other accidents that should have been paid by Hereford but, instead, were paid by Medicare or Medicare Advantage Organizations ("MAOs"). MSP brings the class action pursuant to Federal Rule of Civil Procedure 23, on behalf of all class members or their assignees who paid for accident-related medical expenses, when Hereford was statutorily required to do so as the primary payer and failed to do so. It asserts a private cause of action pursuant to 42 U.S.C. Section 1395y(b)(3)(A) to recover double damages from Hereford for its failure to make or reimburse these payments. The case is one of a series of lawsuits brought by the Plaintiff or its affiliated entities against various insurance companies, alleging that they have incurred costs that are reimbursable pursuant to the Act. Such cases in the district have routinely been dismissed for lack of standing -- MSP Recovery Claims, Series LLC v. AIG Prop. Cas. Co., No. 20 Civ. 2102 (VEC), 2021 WL 1164091 (S.D.N.Y. Mar. 26, 2021), reconsideration denied, No. 20 Civ. 2102 (VEC), 2021 WL 3371621 (S.D.N.Y. Aug. 2, 2021); MSP Recovery Claims, Series LLC v. Tech. Ins. Co., Inc., No. 18 Civ. 8036 (AT), 2020 WL 91540 (S.D.N.Y. Jan. 8, 2020); MSP Recovery Claims, Series LLC v. New York Cent. Mut. Fire Ins. Co., No. 19 Civ. 211 (MAD) (TWD), 2019 WL 4222654 (N.D.N.Y. Sept. 5, 2019). MSP filed the complaint on June 22, 2020. On Feb. 18, 2021, Hereford moved to dismiss the complaint. On March 19, MSP filed the First Amended Complaint. On May 28, 2021, Hereford filed a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim under Rule 12(b)(6). It argues that MSP has failed to allege the specific and particularized facts required to establish standing for jurisdiction or a sustainable claim. Specifically, Hereford contends that MSP's two exemplars and its data system do not demonstrate any injury-in-fact to MSP, nor do they establish any wrongdoing or payment obligation on the part of Hereford. It further argues that MSP, as an assignee of an MAO, does not have a right to a private cause of action, thereby lacking standing. II. Discussion Article III, Section 2, of the Constitution restricts the federal 'judicial Power' to the resolution of 'Cases' and 'Controversies.' That case-or-controversy requirement is satisfied only where a plaintiff has standing." "In order to have Article III standing, a plaintiff must adequately establish: (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)." If a party lacks Article III standing, a court has no subject matter jurisdiction to hear its claims. Thus, the question of standing must be resolved prior to deciding a case on the merits. A. MSP's Article III Standing Over N.G.'s Claim i. MSP Has Not Adequately Pled Injury To satisfy the first element of standing, MSP must suffer an injury-in-fact. The injury must be "concrete and particularized" and "actual or imminent, not conjectural or hypothetical. With respect to the exemplar claim for N.G., MSP describes its injury-in-fact as the economic damages MSP and its assignor EmblemHealth sustained as a direct result of Hereford's alleged failure to pay for or reimburse accident-related medical expenses paid on behalf of N.G. Accordingly, to establish the injury-in-fact element with respect to the exemplar claim, MSP must make adequate factual allegations to support a finding that (1) the MAO incurred medical expenses as a result of an accident suffered by N.G.; (2) the MAO paid, but was not reimbursed, for those expenses; (3) the MAO assigned its claim for reimbursement to one of MSP's Series LLCs; and (4) MSP has the right to sue on behalf of the designated Series LLC that received the assignment. First, Judge Ramos opines that MSP has adequately alleged that EmblemHealth incurred medical expenses resulting from an accident suffered by N.G. MSP alleges that N.G. was injured in an accident, and sustained injuries that required medical services as a direct and proximate result thereof. Second, MSP has not adequately alleged that there is "more than a sheer possibility" that its exemplar claim reported to CMS involves an accident where an insurance company is the primary payer and is therefore required to reimburse the MAO. Third, the N.G. claim was not excluded from the assignment agreement. Fourth, Judge Ramos assumes that MSP has the right to sue on behalf of its designated Series LLC. ii. MSP Has Not Adequately Pled Causation In order to establish Article III standing, an alleged injury must be "fairly traceable" to the defendant. Therefore, MSP must allege facts adequate to show that the alleged injury resulted from the actions of the defendant and "not from the independent action of some third party." First, Judge Ramos opines that MSP has adequately pled that EmblemHealth's injury is traceable to Hereford. Second, MSP has not adequately alleged that the medical services provided to N.G. were for injuries that would have been covered by the insurance policy issued by Hereford. Furthermore, the exhibit listing N.G.'s diagnosis codes and injuries in connection with the accident-related treatment fails to remedy and further illustrates the inadequacy of MSP's pleading. In summary, MSP has failed to adequately allege that EmblemHealth suffered an injury by incurring costs with respect to the N.G. claim that Hereford was required to reimburse as the primary payer. Accordingly, Judge Ramos finds that MSP has not adequately alleged standing over the N.G. claim, and the claim is dismissed. B. MSP's Article III Standing Over Its Exhibit A Claims In addition to the N.G. claim, MSP alleges that it has standing to sue for the 63 claims listed in Exhibit A. Exhibit A is a list of Medicare beneficiaries for whom EmblemHealth allegedly "made conditional payments for accident-related treatments subject to overlapping primary coverage from Hereford, which payments have not been reimbursed," and for whom Hereford filed reports with CMS. It includes the name of the MAO that allegedly provided payment for services and was not reimbursed, the contract and plan number, the plan name, the address, and the insurance type. However, Judge Ramos opines that Exhibit A does not contain any information connecting any patient to a particular accident on a particular day, nor are there any factual allegations regarding the alleged accidents or the related injuries and medical services. Therefore, he finds that MSP has not adequately alleged that it has standing to assert the claims listed in Exhibit A, and the claims are dismissed. C. MSP's Article III Standing Over Its Class-wide Claims MSP alleges that it has standing to sue on a class-wide basis "on behalf of all Class Members or their assignees who paid for their beneficiaries' accident-related medical expenses, when Hereford should have made those payments as primary payer." However, aside from its conclusory allegations regarding the class members, Judge Ramos holds that MSP has provided no information about the class-wide claims. Therefore, he finds that MSP has not adequately alleged that it has standing over the class-wide claims, and the claims are hereby dismissed. D. Leave to Amend the FAC Judge Ramos declines to grant MSP leave to amend the Complaint again. He says, MSP has already amended the Complaint once with Hereford's consent pursuant to Rule 15(a)(2). E. Dismissal Without Prejudice However, because Judge Ramos dismisses the action for lack of standing, he says, the dismissal must be without prejudice. Without jurisdiction, the Court "lacks the power to adjudicate the merits of the case." Accordingly, the FAC is dismissed without prejudice. III. Conclusion & Order Because MSP has not adequately alleged that it has standing, the Court lacks subject matter jurisdiction. Accordingly, Hereford's motion to dismiss is granted. Without subject matter jurisdiction, the Court declines to consider Hereford's remaining arguments. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 37, and close the case. A full-text copy of the Court's Jan. 11, 2022 Opinion & Order is available at https://tinyurl.com/22xhwr8w from Leagle.com. HUFFMASTER MGMT: Huffmaster Crisis Dismissed From Campbell Suit --------------------------------------------------------------- In the case, KEYHONA CAMPBELL, individually, and on behalf of other individuals similarly situated, Plaintiff v. HUFFMASTER MANAGEMENT INC., a Michigan corporation; HUFFMASTER CRISIS RESPONSE, INC., a Michigan corporation; and DOES 1-100, inclusive, Defendants, Case No. 2:21-CV-00815-JAM-JDP (E.D. Cal.), Judge John A. Mendez of the U.S. District Court for the Eastern District of California dismissed Defendant Huffmaster Crisis Response, Inc., from the action without prejudice, including all claims therein against it. The Court has considered the parties' Stipulation for Dismissal of Defendant Huffmaster Crisis Response, Inc. Without Prejudice. All parties are to bear their own attorney's fees and costs. A full-text copy of the Court's Jan. 11, 2022 Order is available at https://tinyurl.com/237p89ek from Leagle.com. BRADLEY/GROMBACHER, LLP Marcus J. Bradley -- mbradley@bradleygrombacher.com -- Kiley Lynn Grombacher -- kgrombacher@bradleygrombacher.com -- Lirit Ariella King -- lking@bradleygrombacher.com -- in Westlake Village, California. McDERMOTT WILL & EMERY LLP Yesenia M. Gallegos -- ygallegos@mwe.com -- Amanda Murray, Kevonna J. Ahmad -- kahmad@mwe.com -- in Los Angeles, California, Attorneys for Defendants HUFFMASTER MANAGEMENT, INC. and, HUFFMASTER CRISIS RESPONSE, INC. JAMES LEBLANC: Joint Bid to Extend Discovery Deadline Filed ----------------------------------------------------------- In the class action lawsuit captioned as BRIAN HUMPHREY, on behalf of himself and all similarly situated individuals, v. JAMES LEBLANC, Case No. 3:20-cv-00233-JWD-SDJ (M.D. La.), the Parties ask the Court to enter an order granting their joint motion to extend discovery deadline pertaining to conditional class certification. On November 17, 2021, this Court issued an amended class certification scheduling order. Fact discovery cutoff was extended to allow for limited depositions related to class certification. On January 6, 2022, the parties filed a joint motion to extend the deadline to January 13, 2022 to complete the Rule 30(b)(6) deposition. The motion was granted on January 7, 2022. Prior to the deposition scheduled for January 13, 2022, one of the remaining representatives was diagnosed with Covid-19. The parties have agreed to complete Rule 30(b)(6) deposition by January 21, 2022 and request that the deadline to complete fact discovery be extended to January 21, 2022 in order to accommodate these scheduled depositions. Extension of this deadline will not upset any other deadlines. Accordingly, parties respectfully request that the Court grant its request extend the discovery deadline from January 13, 2022 to January 21, 2022 to complete the Rule 30(b)(6) deposition of DOC. A copy of the Parties' motion dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/34LUoEy at no extra charge.[CC] The Plaintiff is represented by: Andrew Blanchfield, Esq. C. Reynolds LeBlanc, Esq. Christopher K. Jones, Esq. Chelsea A. Payne, Esq. Special Assistant Attorneys General 701 Main Street (70802) Post Office Box 1151 Baton Rouge, LA 70821 Telephone: (225) 383-3796 Facsimile: (225) 343-9612 E-mail: ablanchfield@keoghcox.com rleblanc@keoghcox.com cjones@keoghcox.com cpayne@keoghcox.com - and - Mercedes Montagnes, Esq. Nishi Kumar, Esq. Rebecca Ramaswamy, Esq. THE PROMISE OF JUSTICE INITIATIVE 1024 Elysian Fields Avenue New Orleans, LA 70117 Telephone: (504) 529-5955 Facsimile: (504) 595-8006 E-mail: mmontagnes@defendla.org - and - Sarah Grady, Esq. Stephen H. Weil, Esq. John Hazinski, Esq. LOEVY & LOEVY 311 N. Aberdeen Chicago, IL 60607 Telephone: (312) 243-5900 Facsimile: (312) 243-5902 E-mail: sarah@loevy.com - and - William Most, Esq. MOST & ASSOCIATES 201 St. Charles Avenue, Suite 114, No. 101 New Orleans, LA 70170 Telephone: (504) 509-5023 E-mail: williammost@gmail.com JOHNSON CONTROLS: Martin Seeks Initial OK of Class-Wide Settlement ------------------------------------------------------------------ In the class action lawsuit captioned as Brian Martin v. Johnson Controls Fire Protection LP, Case No. 2:19-cv-00514-RAJ (W.D. Wash.), the Plaintiff asks the Court to enter an order: 1. preliminarily approving a class-wide settlement of Plaintiff's claims against the Defendant Johnson Controls Fire Protection, L.P.; 2. approving the Notice of Proposed Settlement to be sent to the Class Members; and 3. scheduling a final fairness hearing at least 75 days from the date of any preliminary approval. The Plaintiff filed this lawsuit in King County (Washington) Superior Court on March 5, 2019, alleging that Johnson Controls had violated the Washington Prevailing Wage Act, RCW 10 39.12, and associated state wage laws and contracts by failing to pay its employees for testing and inspection work on fire alarm and fire suppression systems in state and local public buildings in Washington state. Johnson Controls timely removed to this Court. On August 17, 2020, this Court granted Plaintiff's contested motion to certify a litigation Class composed of all individuals employed by Johnson Controls to conduct fire alarm, sprinkler, and fire suppression system testing and inspections in state and local government buildings in the State of Washington at any time between March 5, 2016 and August 17, 2020. The key terms of the agreement are as follows: 1. Gross Settlement Fund ($1,590,000). -- Johnson Controls agrees to establish a Gross Settlement Fund of $1,590,000 to cover Class Member claims for back-pay and prejudgment interest and any Court-awarded fees and costs to Class Counsel, the Class Representative, and the Third Party Settlement Administrator. 2. Allocation of Net Settlement Fund. -- The net Settlement Fund, after deduction of any Court- awarded fees and costs, will be allocated pro rata among Class Members according to the Dr. Laniers calculations. -- At least $250 from the Settlement Fund regardless of the results of these calculations. Individual settlement awards will be divided equally between back wages and prejudgment interest. Class Members will not need to submit any claim form or documentation to receive their individual settlement awards. 3. Prospective Relief. -- Johnson Controls agrees that beginning on or before the date of the Settlement it will pay prevailing wages under Washington law for testing and inspection work on fire alarm and fire suppression system (except fire extinguishers) on state and local public works in Washington state, unless and until there is a determination by the Washington Department of Labor and Industries or a court of competent jurisdiction that the Washington Prevailing Wage Act does not require such payments. 4. Attorneys' Fees and Costs -- Class Counsel seeks an attorneys' fee award of 25% of the Gross Settlement Fund, or $397,500, plus actual litigation costs not to exceed $45,000. Johnson Controls does not oppose this award. 5. Class Representative Fee. -- The Plaintiff seeks an award of $20,000 from the Gross Settlement Fund in recognition of his service to the Class, his time and efforts spent on this litigation, and in exchange for his grant of a general release to Johnson Controls. From fire sprinkler systems to specialized fire suppression installations, Johnson Controls provides life safety solutions. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3fuaODF at no extra charge.[CC] The Plaintiff is represented by: Adam J. Berger, Esq. Jamal N. Whitehead, Esq. SCHROETER GOLDMARK & BENDER 401 Union Street, Suite 3400 Seattle, WA 98101 Telephone: (206) 622-8000 Facsimile: (206) 682-2305 E-mail: berger@sgb-law.com whitehead@sgb-law.com KELLER WILLIAMS: Bid to Extend Class Cert Discovery Deadline Filed ------------------------------------------------------------------ In the class action lawsuit captioned as DANNA ST JOHN and LUIS PENUELA, individually and on behalf of all others similarly situated, v. KELLER WILLIAMS REALTY, INC., a Texas corporation, Case No. 6:19-cv-01347-PGB-DCI (M.D. Fla.), the Parties ask the Court to enter an order approving their stipulation to extend the class certification discovery deadline until January 31, 2022. The deadline for the parties to complete class certification discovery is January 10, 2022.Over the last week, the parties and one third party have resolved a series of discovery disputes relating to certain class certification related depositions resulting in agreements to schedule two class certification related depositions on January 21 and January 25. Additionally, as of January 7, 2022, the parties are continuing to meet and confer concerning disputes relating to written discovery relevant to class certification in an effort to resolve their disputes without Court intervention. Accordingly, subject to Court approval, the parties have agreed to extend the deadline to complete class certification discovery until January 31, 2022, which is the deadline for Plaintiffs to file their class certification motion. Extending the deadline for the parties to complete class certification discovery will not extend the date by which briefing will be completed on the class certification motion, and will not affect the dispositive motions deadline and trial date, the Parties contend. Keller Williams is an American technology and international real estate franchise with headquarters in Austin, Texas. A copy of Parties' motion dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3I4v9Ma at no extra charge.[CC] The Plaintiffs are represented by: Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26 th Street Miami, Florida 33127 Telephone: (305) 469-5881 E-mail: kaufman@kaufmanpa.com - and - Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 201 S. Biscayne Blvd, 28 th Floor Miami, FL 33131 Telephone: (877) 333-9427 Facsimile: (888) 498-8946 E-mail: law@stefancoleman.com The Defendant is represented by: Ruel W. Smith, Esq. Andrew J.J. Collinson, Esq. HINSHAW & CULBERTSON LLP 100 South Ashley Drive, Suite 500 Tampa, FL 33602 Telephone: (813) 276-1662 Facsimile: (813) 276-1956 E-mail: rsmith@hinshawlaw.com acollinson@hinshawlaw.com - and - John P. Ryan, Esq. Todd P. Stelter, Esq. 151 N. Franklin Street, Suite 2500 Chicago, IL 60606 Telephone: (312) 704-3000 Facsimile: (313) 704-3001 E-mail: jryan@hinshawlaw.com tstelter@hinshawlaw.com KINGLAND COMPANY: Ct. Enters Scheduling Order in Czarnecki Suit --------------------------------------------------------------- In the class action lawsuit captioned as SHANNON CZARNECKI, et al., v. THE KINGLAND COMPANY LTD, et al., Case No. 2:21-cv-05031-SDM-KAJ (S.D. Ohio), the Hon. Judge Kimberly A. Jolson entered an Scheduling order as follows: -- The parties shall exchange initial Jan. 26, 2022 disclosures by: -- Any motion to amend the pleadings Feb. 11, 2022 or to join additional parties shall be filed by: -- The motion for class certification May 11, 2022 shall be filed by: -- All discovery shall be completed by: Oct. 12, 2022 -- Any proposed protective order or March 11, 2022 clawback agreement shall be filed with the Court by: -- Any dispositive motions shall be Nov. 12, 2022 filed by: -- Settlement The Plaintiff will make a settlement March 14, 2022 demand by: The Defendant will respond by: April 14, 2022 This matter is referred to a May 2022 settlement conference in: This is a collective action complaint for violations of the Fair Labor Standards Act (FLSA) and Ohio law in which the Plaintiffs claim that they were misclassified as independent contractors and not paid overtime because their hours worked for both companies should be combined since they constituted a single enterprise. The Defendants deny these allegations. A copy of the Court's order dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/31Y86mK at no extra charge.[CC] KIRIN TRANSPORTATION: Wang Conditional Cert. Bid Partly Granted --------------------------------------------------------------- In the class action lawsuit captioned as QIAN WANG, a/k/a SARAH WANG, ZHANWEN CHI, on their own behalf and on behalf of others similarly situated, TIANDE WANG, YA XU, LU YANG, v. KIRIN TRANSPORTATION INC., d/b/a KIRIN TRANSPORTATION, QIANG CHEN, a/k/a FRANK CHEN, MARRIANA YUHUA SONG, a/k/a NANCY SONG, and QIUXIANG SHI, a/k/a QIU XIANG SHI, Case No. 1:20-cv-05410-KAM-TAM (E.D.N.Y.), the Hon. Judge Taryn A. Merkl entered an order granting in part and denying in part the Plaintiffs' motion for conditional certification as a collective action under the Fair Labor Standards Act (FLSA) pursuant to 29 U.S.C. section 216(b). The Court further orders that: (1) within 14 days of this Order, by January 21, 2022, the parties are to meet and confer in good faith, and by February 18, 2022, the parties shall submit a revised proposed notice and consent form that complies with the directives set forth herein; (2) within 14 days of this Order, by January 21, 2022, Defendants are to produce to Plaintiffs a spreadsheet including the full names, last known mailing addresses (including apartment number if applicable), telephone numbers, email addresses, social media, and dates of employment of the members of the putative collective, i.e., commuter van drivers employed by Defendant Kirin Transportation, Inc. at any time from November 6, 2017 to the present; (3) within 30 days of final approval by the Court, Plaintiffs or their designated representative shall cause a copy of the notice form to be disseminated to the putative collective by first class mail and email and to be posted at Kirin Transportation, located at 142-04 Bayside Ave., Suite 7L, Flushing, NY 11354; (4) no sooner than 30 days following final approval by the Court, Plaintiffs may send one reminder notice by mail and email to notify potential opt-in plaintiffs that the 60 day opt-in period is coming to a close; (5) the statute of limitations period for opt-in plaintiffs shall be tolled from September 3, 2021, the date Plaintiffs filed this conditional certification motion, until the close of the opt-in period, 60 days from the Court's final approval of the revised notice; and (6) within 30 days of the Court’s final approval of the notice, the parties are to meet and confer in good faith, and set out a deposition schedule for the discovery period granted herein. The Plaintiffs Qian Wang and Zhanwen Chi initiated this collective action on November 6, 2020. Opt-in Plaintiff Tiande Wang consented to join the litigation on December 2, 2020. The Plaintiffs also filed an amended complaint on December 2, 2020, which is the operative complaint in this action. According to the amended complaint, Kirin is a Queens-based private transportation service for seniors that employs "around 30 drivers, and between 3-6 office employees." The Plaintiff Qian Wang alleges that from June 1, 2016, until November 3, 2020, she worked for the Defendants as a billing, payroll, and sanitation worker at 142-04 Bayside Ave, Suite 7L, Flushing, New York. She claims that she was paid $12 an hour until March 2019, and then $13.50 an hour for the remainder of her employment, and that she was not paid for "all hours worked," including the two to three overtime hours she worked on average per week between November 1, 2016, and March 1, 2019. The Plaintiff Qian Wang also alleges that she did not have a fixed time for lunch or dinner, "was never informed of her hourly pay rate or any tip deductions toward the minimum wage[, and] was not given a statement with her weekly payment," as required by law. Additionally, she claims she was fired on December 2, 2020, shortly after filing the instant lawsuit, and therefore also alleges a claim for retaliation under the FLSA and New York Labor Law (NYLL). A copy of the Court's order dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3nruhte at no extra charge.[CC] KNIGHT TRANSPORTATION: Class of Truck Drivers Certified in LaCross ------------------------------------------------------------------ In the case, Patrick LaCross, et al., Plaintiffs v. Knight Transportation Incorporated, et al., Defendants, Case No. CV-15-00990-PHX-JJT (D. Ariz.), Judge John J. Tuchi of the U.S. District Court for the District of Arizona granted the Plaintiffs' Motion for Class Certification. I. Background Knight is a commercial motor carrier based in Phoenix, Arizona that delivers freight throughout the continental United States. Plaintiffs Patrick LaCross, Robert Lira, and Matthew Lofton are former owner-operator truck drivers for Knight. The Plaintiffs and the putative class members, all of whom drove owner-operator trucks for Knight, contend Knight misclassified them as independent contractors in violation of California's labor and employment laws. The relationship between Knight and the owner-operator drivers (the "Drivers") is governed primarily by two contracts: (1) the Tractor Lease Agreement ("TLA"), and (2) the Independent Contractor Operating Agreement ("ICOA"). According to the Plaintiffs, "Knight classifies its Drivers as 'independent contractors' in the ICOAs for purposes of Arizona's worker's compensation but maintains extensive control over them through the terms of that same agreement and in practice, such that the Driver's independent contractor status can be attacked through facts uniform to all Drivers." On Feb. 6, 2015, another law firm filed a lawsuit against Knight, alleging substantially similar violations as those contained in Plaintiffs' Amended Complaint. (the "Flores Action"). The parties to that lawsuit reached a preliminary settlement on or around Dec. 18, 2017. The Plaintiffs and the putative class members in the current action believed the settlement terms were not in their best interest and opted out of the settlement. Now, the Plaintiffs and the putative class members seek to certify a Rule 23(b)(3) class of truck drivers who: "(1) signed materially identical contracts with Knight during the relevant time period, (2) were subject to uniform policies, rules and regulations, (3) were hired to perform the same job duties; (4) were all allegedly uniformly misclassified as independent contractors, and (5) all of whom opted out of a prior settlement in Flores v. Knight Transportation Inc., et al., Case No. CV-15-01817-PHX-SRB ("Flores")." The proposed class includes 183 drivers, all of whom are individually represented by the Plaintiffs' counsel. II. Analysis Federal Rule of Civil Procedure 23(a) provides that a class action -- that is, an action in which one or more members of a class sue on behalf of all members of the class -- may proceed only if four prerequisites are met: (1) Numerosity: the class is so numerous that joinder of all members is impracticable; (2) Commonality: there are questions of law or fact common to the class; (3) Typicality: the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) Adequacy of Representation: the representative parties will fairly and adequately protect the interests of the class. In addition, under Rule 23(b), a court may only certify a class action if there is at least one of the following: (1) Risk of Inconsistency: the prosecution of separate actions by individual class members would create a risk of inconsistent adjudications or adjudications that would be dispositive of non-party class member interests; or (2) Appropriate Class-Wide Injunctive Relief: injunctive or declaratory relief is appropriate respecting the class as a whole because the conduct of the opposing party applies generally to the class; or (3) Predominance and Superiority: the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The Plaintiffs urge the proposed class meets all the requirements of Rule 23(a) and Rule 23(b)(3). Judge Tuchi holds that the Plaintiffs seek class certification via Rule 23(a) and Rule 23(b)(3). He finds each element of Rule 23(a) and Rule 23(b)(3) has been satisfied and the class should be certified. Judge Tuchi finds that (i) joining 183 drivers would be impracticable, so numerosity is satisfied; (ii) the contracts place uniform policies and practices on the putative class members satisfying the commonality requirement under Rule 23(a)(2); (iii) the Defendants do not challenge the Plaintiffs' argument regarding typicality; (iv) the Defendants do not contest that the named Plaintiffs do not have a conflict of interest or that counsel for the Plaintiffs are not competent to represent the class; (v) for any causes of action that fall within the choice of law provisions, predominance would not be defeated since any choice of law analysis would be common to all the Plaintiffs; and (vi) it is unlikely there will be many difficulties in managing the class action. III. Order For the foregoing reasons, Judge Tuchi granted the Plaintiffs' Motion for Class Certification. He overruled the Defendants' Objections to the Plaintiffs' submission of 50 declarations of putative class members in support of the Plaintiffs' Reply. A full-text copy of the Court's Jan. 11, 2022 Order is available at https://tinyurl.com/345tjt68 from Leagle.com. KNIGHT TRANSPORTATION: LaCross Wins Class Certification Bid ----------------------------------------------------------- In the class action lawsuit captioned as Patrick LaCross, et al., v. Knight Transportation Incorporated, et al., Case No. 2:15-cv-00990-JJT (D. Ariz.), the Hon. Judge John J. Tuchi entered an order: 1. granting the Plaintiffs' Motion for Class Certification; and 2. overruling the Defendants' Objections to Plaintiffs' submission of 50 declarations of putative class members in support of Plaintiffs' Reply. Knight is a commercial motor carrier based in Phoenix, Arizona that delivers freight throughout the continental United States. The Plaintiffs Patrick LaCross, Robert Lira, and 25 Lofton are former owner-operator truck drivers for Knight. The Plaintiffs and putative class members, all of whom drove owner-operator trucks for Knight, contend Knight misclassified them as independent contractors in violation of California's labor and employment laws. The relationship between Knight and the owner-operator drivers (the Drivers) is governed primarily by two contracts: (1) the Tractor Lease Agreement (TLA), and (2) the Independent Contractor Operating Agreement (ICOA). According to Plaintiffs, "Knight classifies its Drivers as 'independent contractors' in the ICOAs for purposes of Arizona's worker's compensation but maintains extensive control over them through the terms of that same agreement and in practice, such that [the Driver's] independent contractor status can be attacked through facts uniform to all [Drivers]." On February 6, 2015, another law firm filed a lawsuit against Knight, alleging substantially similar violations as those contained in Plaintiffs' Amended Complaint. The parties to that lawsuit reached a preliminary settlement on or around December 18, 2017. Plaintiffs and the putative class members in the current action believed the settlement terms were not in their best interest and opted out of the settlement. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3nwoVN4 at no extra charge.[CC] LOVE STYLE: Bid to Extend Time to Certify Class Action Filed ------------------------------------------------------------ In the class action lawsuit captioned as EMILY LONGMIRE, JAZMIN WITHERSPOON, PAUL CRAIG WORRALL, COLLIN GINEBAUGH, and KESSYN ALAN on behalf of themselves and those similarly situated, v. TIMOTHY LOVE, LOVE STYLE INC, LDWB KNOX LLC d/b/a LONESOME DOVE WESTERN BISTRO, RIVER SHACK LLC d/b/a WOODSHED SMOKEHOUSE, and LOVE MANAGEMENT INC., Case No. 3:21-cv-02602-M (N.D. Tex.), the Parties ask the Court to enter an order extending Plaintiffs' deadline to certify the class until after the parties have engaged in alternative dispute resolution. The Plaintiffs filed their Complaint on October 20, 2021 as a class action. The Defendants moved to extend time to respond to the Complaint on November 22, 2021. The parties have scheduled to mediate on January 17, 2022. The Plaintiff are required to certify a class by January 18, 2022 pursuant to L. R. OF CIV. PRO. The Plaintiffs respectfully request that this Court extend the time to certify the class by 60 days, making the new date March 19, 2022, or to a time in which the Court deems fair and proper. Love Style Inc is the umbrella company for: The Lonesome Dove, Woodshed Smokehouse, Love Shack, White Elephant Saloon, Queenie's, and Tim Love Catering. A copy of the Parties' motion dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3fxdalb at no extra charge.[CC] The Plaintiffs are represented by: Walker G. Harman, Jr., Esq. 244 Fifth Ave., Suite H211 New York, NY 10001 Telephone: (646) 248-2288 E-mail: wharman@theharmanfirm.com M-I LLC: Last Suit Seeeks to Certify Rule 23 Classes of Employees ----------------------------------------------------------------- In the class action lawsuit captioned as Donovin Last, an individual, on behalf of himself and all others similarly situated, v. M-I, L.L.C. and Does 1 through 10, Case No. 1:20-cv-01205-DAD-BAK (E.D. Cal.), the Plaintiff asks the Court to enter an order pursuant to Federal Rule of Civil Procedure 23 as follows: 1. determining that a class action is proper as to all Claims contained in the First Amended Complaint pursuant to Rule 23 of the Federal Rules of Civil Procedure, on the grounds that: (1) the number of class members in the classes are so numerous that joinder of all members is impracticable; (2) there are questions of law and fact common to the classes that predominate; (3) Plaintiff's class claims are typical of the claims of the classes; (4) Plaintiff will fairly and adequately protect the interests of the classes, and (5) class treatment is appropriate under Rule 23(b)(3) of the Federal Rules of Civil Procedure; 2. certifying the following classes: -- Class 1. Unpaid Overtime "All persons who at any time from May 20, 2016 to the date of certification worked as employees of M-I, L.L.C. or provided services on behalf of M-I, L.L.C. in California in job positions titled "Drilling Fluid Specialist" (mud man, Levels I-IV and mud man Senior), mud engineer," "mud man," "mud man Trainee," "mud man consultant" and/or equivalent job titles who have not released all claims asserted in this action;" -- Class 2. Section 203 Subclass "All members of Class 1 who at any time during the period beginning on May 20, 2017 and ending on the date of certification were either voluntarily or involuntarily separated from their employment with or stopped providing services on behalf of M-I, L.L.C;" and -- Class 3. Wage Statement Subclass "All members of Class 1 who at any time during the period beginning on May 20, 2019 and ending on the date of certification were either not provided with a wage statement by M-I, L.L.C. or who were provided with a wage statements that did not accurately reflect all of the information required by Labor Code Section 226(a). 3. finding that Plaintiff Donovin Last is an adequate representative and appointing him a class representative; and 4. finding that Plaintiff's counsel and their respective firms, Peter R. Dion-Kindem of Peter R. Dion-Kindem, P.C. and Lonnie C. Blanchard III of The Blanchard Law Group, APC, are adequate class counsel and appointing them as class counsel. M-I LLC provides services to the oil & gas industry. A copy of the Plaintiff's motion to certify class dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/33A03gt at no extra charge.[CC] The Plaintiff is represented by: Peter R. Dion-Kindem, Esq. THE DION-KINDEM LAW FIRM 2945 Townsgate Road, Suite 200 Westlake Village, CA 91361 Telephone: (818) 883-4900 E-mail: peter@dion-kindemlaw.com - and - Lonnie C. Blanchard, III, Esq. THE BLANCHARD LAW GROUP, APC 5211 East Washington Blvd. No. 2262 Commerce, CA 90040 Telephone: (213) 599-8255 Facsimile: (213) 402-3949 E-mail: lonnieblanchard@gmail.com MARDEN-KANE INC: Can't Compel Arbitration in Suski Class Suit ------------------------------------------------------------- In the case, DAVID SUSKI, et al., Plaintiffs v. MARDEN-KANE, INC., et al., Defendants, Case No. 21-cv-04539-SK (N.D. Cal.), Magistrate Judge Sallie Kim of the U.S. District Court for the Northern District of California entered an order: a. denying Coinbase Global, Inc.'s motion to compel arbitration; b. granting in part and denying in part Coinbase's alternative motion to dismiss; and c. granting the Plaintiffs' request for judicial notice pursuant to Federal Rule of Evidence 201. I. Background Plaintiffs David Suski, Jaimee Martin, Jonas Calsbeek and Thomas Maher filed the purported class action on behalf of themselves and persons who opted into Coinbase's $1.2 million Dogecoin (DOGE) sweepstakes in June 2021, and who purchased or sold Dogecoins on a Coinbase exchange for a total of $100 or more between June 3, 2021 and June 10, 2021. The Plaintiffs are Coinbase users with Coinbase accounts, which they created before the sweepstakes began. When they created their Coinbase accounts, each Plaintiff agreed to the Coinbase User Agreement which indisputably contains an arbitration provision. The Plaintiffs then participated in Coinbase's June 2021 sweepstakes. At the hearing on the matter, Coinbase stated that an individual who won through the mail-in process would be required to open a Coinbase account to collect the winnings. The Plaintiffs allege that Coinbase's sweepstakes was an unlawful lottery in violation of California Penal Code Section 320, that its solicitations for the sweepstakes violated California Business and Professions Code Section 17539.15, and that Coinbase's conduct violated California Civil Code Section 1770. The Plaintiffs brings claims under California Business and Professions Code Section 17200, California's Unfair Competition Law ("UCL") based on this alleged unlawful and unfair conduct. They also bring a claim for false advertising under California Business and Professions Code Sections 17200 and 17500, California's False Advertising Law ("FAL") and for violation of California Civil Code Section 1750, California's Consumers Legal Remedy Act ("CLRA"). Coinbase now moves to compel arbitration under its User Agreement or, in the alternative, to dismiss the Plaintiffs' claims for failure to state a claim. II. Analysis A. Coinbase's Motion to Compel The parties do not dispute that: (1) the Plaintiffs agreed to Coinbase's User Agreement; (2) Coinbase's User Agreement contains a valid arbitration agreement; and (3) the Plaintiffs subsequently agreed to the Dogecoin sweepstakes' Official Rules; and (4) the Dogecoin sweepstakes' Official Rules provides that California courts have exclusive jurisdiction over any controversies regarding the sweepstakes. PThe laintiffs also do not dispute that their claims would fall within the scope of Coinbase's User Agreement arbitration provision, had they not agreed to the subsequent exclusive jurisdiction provision in the Dogecoin sweepstakes' Official Rules. The issues are thus which contract (Coinbase's User Agreement or the Dogecoin sweepstakes' Official Rules) governs this dispute and who decides which contract applies (the Court or the arbitrator). Whether the Court or the arbitrator determine which contract applies "is an issue for judicial determination unless the parties clearly and unmistakably provide otherwise." Therefore, "there is a presumption that courts will decide which issues are arbitrable." Coinbase argues that the arbitration provisions in the Coinbase User Agreements clearly delegate the issue of arbitrability to the arbitrator. Three of the four Plaintiffs agreed to the arbitration provision in the Coinbase User Agreement. Judge Kim states that while disagreements over the scope of the arbitration provisions were delegated to the arbitrator, the dispute in the case is not over the scope of the arbitration provision, but rather whether the agreement was superseded by another separate contract. In other words, the Plaintiffs do not dispute that their claims would fall within the scope of the arbitration provision if they had not agreed to the Official Rules of the Dogecoin sweepstakes. Moreover, because the Plaintiffs agreed to a subsequent agreement with an exclusive jurisdiction provision, the dispute over how to address the interaction between two separate contracts is not clearly and unmistakably delegated in the arbitration provision to the arbitrator. Or, as another district court explained, the required "clear and unmistakable evidence of intent to arbitrate arbitrability does not exist where an arbitration provision has been excluded from superseding agreements." In light of the presumption that the Court address this issue, Judge Kim determines which contract applies. After agreeing to the Coinbase User Agreement with the arbitration provision, the Plaintiffs agreed to the Official Rules for the Dogecoin sweepstakes, which contains an exclusive forum selection clause designating California courts for all disputes regarding the sweepstakes. The arbitration clause and the forum selection provision in the two contracts are conflicting. Although Coinbase tries to reconcile the two, arguing that the sweepstakes Official Rules only applies to non-Coinbase users, there is no support in the contract language for this distinction. The Official Rules does not limit to whom it applies. Instead, by its terms, it applies to all sweepstakes' "entrants." Because the arbitration provision and the forum selection clause conflict, the subsequent contract supersedes the first. Therefore, Judge Kim will deny Coinbase's motion to compel arbitration and, thus, turns to the alternative motion to dismiss for failure to state a claim. B. Coinbase's Motion to Dismiss 1. California Penal Code Section 320 The Plaintiffs allege that the Dogecoin sweepstakes violates California Penal Code Section 320. Coinbase argues that the Dogecoin sweepstakes was not an illegal lottery under California law because it provided free alternative methods of entry. As a result, Coinbase argues that the Plaintiffs' UCL claims, predicated on violation of the lottery law, fail as a matter of law. Judge Kim finds that, as currently alleged in the Second Amended Complaint, the Dogecoin sweepstakes was not an illegal lottery. In the California cases finding no consideration, the tickets were clearly and widely distributed for free. However, the holdings of those cases did not turn on a wide and obvious method of free ticket distribution. Although the Plaintiffs may not have been aware of it when they made a trade of Dogecoins, they were not actually required to trade Dogecoins in order to enter the sweepstakes and have a chance to win. Because California penal statutes are construed strictly and because no California court has held that being unaware of the free method of entry is sufficient to demonstrate the required consideration, Judge Kim finds that the Plaintiffs have not and cannot allege a violation of California Penal Code Section 320. Therefore, she will grant Coinbase's motion to dismiss as to the Plaintiffs' first claim (violation of Cal. Bus. & Prof. Code Section 17200) in full and Plaintiffs' second claim (violation of Cal. Bus. & Prof. Code Sections 17200, 17539.15) and sixth claim (violation of Cal. Civ. Code Section 1750) to the extent they are is premised on a violation of Penal Code Section 320. At oral argument, the Plaintiffs advanced a theory that they conceded they had not explicitly pleaded in the Second Amended Complaint, and Judge Kim will grant leave to amend to advance this theory. 2. Disclosure and Misrepresentation Claims Upon review of Coinbase's advertising materials as alleged in the Second Amended Complaint, Judge Kim finds that the Plaintiffs state a claim that the materials were likely to deceive a reasonable consumer that they needed to make a trade to participate in the sweepstakes. While Coinbase may have actually disclosed the free method in the Dogecoin sweepstakes' Official Rules, its advertising methods heavily directed people to make a trade in order to participate in this sweepstakes. Additionally, Coinbase's statements regarding "no purchase necessary" were ambiguous in light of the other statements regarding the need to "buy or sell" Dogecoin. Persons could have reasonably believed they were required to buy or sell Dogecoin to participate, which would have been consistent with not making a purchase but still requiring them to make a trade. Additionally, California law requires sweepstakes sponsors to include a "clear and conspicuous statement of the no-purchase-or-payment-necessary message" in solicitation materials. Therefore, the Court considers the language of the statute, which requires a "clear and conspicuous statement" that "no purchase or payment of any kind" is required to enter or win. Judge Kim finds that the Plaintiffs have alleged sufficient facts to show that Coinbase's advertisements were not "clear and conspicuous" as to whether all persons could enter for free. Accordingly, she finds that the Plaintiffs have alleged sufficient facts as to the remainder of their claims and will deny Coinbase's motion to dismiss as to the Plaintiffs' second through seventh claims to the extent they are not premised on a violation of California Penal Code Section 320. III. Conclusion For the foregoing reasons, Judge Kim denied Coinbase's motion to compel arbitration and granted in part and denied in part its alternative motion to dismiss for failure to state a claim. Therefore, she granted with leave to amend Coinbase's motion to dismiss as to the Plaintiffs' first claim (violation of Cal. Bus. & Prof. Code Section 17200) in full and the Plaintiffs' second claim (violation of Cal. Bus. & Prof. Code Sections 17200, 17539.15) and sixth claim (violation of Cal. Civ. Code Section 1750) to the extent they are is premised on a violation of Penal Code Section 320. Judge Kim denied Coinbase's motion to dismiss as to the remainder of the Plaintiff's claims. The Plaintiffs will file their amended complaint, if any, by no later than Feb. 1, 2022. A full-text copy of the Court's Jan. 11, 2022 Order is available at https://tinyurl.com/3bs34mdb from Leagle.com. MASTERCARD INTERNATIONAL: Scoma Seeks Extension to File Response ---------------------------------------------------------------- In the class action lawsuit captioned as SCOMA CHIROPRACTIC, P.A., WILLIAM P. GRESS, and FLORENCE MUSSAT M.D., S.C., individually and on behalf of a Class, v. MASTERCARD INTERNATIONAL INC., Case No. 2:16-cv-00041-JLB-MRM (M.D. Fla.), the Plaintiffs ask the Court to enter an order extending the time for their response to the Motion for Reconsideration to January 28, 2022. On December 23, 2021, the Court issued its order granting in part and denying in Part Plaintiffs' second amended motion for class certification. On January 6, 2022, Mastercard filed its Motion for Reconsideration of the Order. Under Local Rule 3.01(c), Plaintiffs' response to the Motion for Reconsideration is currently due January 20, 2022. In order to properly address the issues in the Motion for Reconsideration, Plaintiffs respectfully request an extension of eight days, up to and including January 28, 2022, in which to file a response to the Motion for Reconsideration. MasterCard International provides payment processing products. A copy of the Plaintiffs' motion dated Jan. 13, 2021 is available from PacerMonitor.com at https://bit.ly/3tQDSOn at no extra charge.[CC] The Plaintiffs are represented by: Daniel A. Edelman, Esq. Heather Kolbus, Esq. EDELMAN COMBS LATTURNER & GOODWIN 20 S. Clark St., Suite 1500 Chicago, IL 60603 Telephone: (312) 739-4200 E-mail: dedelman@edcombs.com hkolbus@edcombs.com - and - Curtis C. Warner, Esq. 5 E. Market St., Suite 250 Corning, NY 14830 Telephone: (888) 551-8685 E-mail: cwarner@warner.legal - and - Ryan M. Kelly, Esq. Ross M. Good, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 E-mail: rkelly@andersonwanca.com rgood@andersonwanca.com MCCORMICK & CO: Consumers Exposed to Toxic Metals, Balistreri Says ------------------------------------------------------------------ KELLY BALISTRERI and TONY MICHEL, individually and on behalf of all others similarly situated, Plaintiffs v. McCORMICK & COMPANY, INC., Defendant, Case No. 5:22-cv-00349 (N.D. Cal., January 18, 2022) is a class action against the Defendant for breach of implied warranty of merchantability, breach of implied warranty under the Song-Beverly Act, unjust enrichment, violations of California Business & Professions Code and California Consumer Legal Remedies Act. According to the complaint, the Defendant is engaged in deceptive and misleading advertising, labeling, and marketing of McCormick herbs and spices including Culinary Ground Basil, Ground Ginger, Ground Oregano, Paprika, Ground Thyme, and Ground Turmeric. The Defendant failed to disclose that certain McCormick's herbs and spices contained heightened levels of toxic heavy metals, including lead, arsenic, and cadmium. As a result of the Defendant's omissions, the Plaintiffs and similarly situated consumers have been exposed to toxic heavy metals. Had the Defendant disclosed on the label that its herbs and spices contained unsafe levels of toxic heavy metals, the Plaintiffs and Class members would have been aware of that fact and would not have purchased the products, says the suit. McCormick & Company, Inc. is a manufacturer of herbs and spices, with its headquarters in Baltimore, Maryland. [BN] The Plaintiffs are represented by: L. Timothy Fisher, Esq. Sean L. Litteral, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com slitteral@bursor.com MCGRAW HILL: S.D. New York Narrows Claims in Flynn Class Suit ------------------------------------------------------------- In the case, SEAN FLYNN, et al., Plaintiffs v. McGRAW HILL LLC, et al., Defendants, Case No. 21 Civ. 614 (LGS) (S.D.N.Y.), Judge Lorna G. Schofield of the U.S. District Court for the Southern District of New York granted in part and denied in part the Defendants' motion to dismiss. I. Background Plaintiffs Sean Flynn, Dean Karlan, Jonathan Morduch, David Myers and Jean Twenge, individually and purportedly on behalf of all others similarly situated, bring the action alleging breach of contract and breach of the duty of good faith and fair dealing against Defendants McGraw Hill LLC and McGraw Hill Education, Inc. The lawsuit is a royalty dispute arising between the Plaintiffs, the academics who author textbooks, and the Defendants, which publish, sell and distribute the Plaintiffs' textbooks pursuant to publishing agreements (the "Royalty Contracts"). McGraw Hill LLC is the successor-in-interest to certain entities that were parties to the Royalty Contracts. McGraw Hill Education, Inc. is an education and technology company and is referenced in royalty payments made to the authors. The Royalty Contracts for the Plaintiffs' textbooks share the following key provisions: (1) The Plaintiffs (the authors) must deliver a manuscript of the work, which the Defendants then publish "at their own expense," (2) royalties are paid as a percentage of the publisher's "net receipts" from the sale of the work and (3) "net receipts" is defined as the "selling price" less certain items, excluding the cost of publishing. In 2009, the Defendants launched an online platform called "Connect," a content management system for hosting and delivering electronic textbooks and related course materials. Each Connect offering consists of a textbook and course content derived from that text, sold together for a single price. For more than a decade after Connect's launch, until November 2020, the Defendants paid royalties to authors based on the entire sales price of the Connect offering. Plaintiffs claim that this practice complies with the terms of the Royalty Contracts, which require royalty payments based on the "net receipts" of each textbook sold. In November 2020, the Defendants changed how they calculated and paid royalties on the Connect sales. In November and December 2020, they announced that "effective with this current royalty period," July to December 2020, they would no longer pay royalties to authors based on the entire sales price of an electronic textbook sold for use on Connect. Instead, the Defendant would pay royalties only on "the revenue attributed to the ebook component." The Defendants explained the change in an email to Connect authors, "it was only recently that McGraw Hill had an objective way of determining the relative value of the three components of the Connect product (i.e., the ebook, the platform, and the course-specific content and technology accessed through the platform, ("CCC"))." The Plaintiffs assert that this change constitutes a breach of contract in three ways: (1) "It violates the explicit terms of the Royalty Contracts by introducing new terms that are not present in the Royalty Contracts"; (2) "the reduction violates the explicit terms of the Royalty Contracts which prevent the Defendants from passing its publication costs to authors" and (3) "the reduction in royalty payments is contrary to the Defendants' course of performance, which reflects its longstanding bargain with its authors." They also assert a second cause of action, breach of the Defendants' duty of good faith and fair dealing, because redefining the "price" of the Connect-based textbooks as "only a fraction of the net receipts of those books arbitrarily reduced the amounts on which royalties are due." The action followed in January 2021. II. Discussion A. Breach of Contract Judge Schofield opines that the Complaint fails to state a viable claim for breach of contract. She explains that under the Royalty Contracts, the Plaintiffs are entitled to royalties based the "net receipts" of the total sales price of the "Work." Work is defined by the title of the textbook. Accordingly, the Plaintiffs are entitled to royalties from net receipts on the textbook and no more. The Plaintiffs are not entitled to royalties for additional content that the Defendants sell with the Work. The Plaintiffs argue that the Defendants' new royalty payment policy breaches the Royalty Contracts in three ways. None of these arguments is persuasive, Judge Schofield says. First, the Plaintiffs argue that the Royalty Contracts require the Defendants to pay royalties based on the "net receipts" of total sale price of the "Work" -- not just the "revenue attributed" to specific components of the Connect product. This argument falls short because it is inconsistent with the plain text of the Royalty Contracts, which define the "Work" by title as the textbook itself. Second, the Plaintiffs assert that the new royalty payment policy charges what amounts to a platform fee to authors, violating provisions of the Royalty Contracts that require Defendants to publish the Works at their "own expense." This argument fails because Connect is more than a publishing platform and includes content in addition to the author's textbook, for example, PowerPoint lesson plans and tests. Connect is therefore not akin to the ink and paper required to publish a hardcopy textbook as the Plaintiffs assert. Finally, the Plaintiffs argue that, "at a minimum," the Royalty Contracts do not "unambiguously" permit the Defendants' new practice and thus the Court should consider the ten years that Defendants paid royalties on the net receipts from the entire Connect sales price. This argument fails because the Royalty Contracts unambiguously define the "Work" as the titles themselves. When a contract is unambiguous on its face, it is improper to consider extrinsic evidence. B. Breach of Good Faith and Fair Dealing Judge Schofield also opines that the Complaint states a viable claim for the breach of the implied covenant of good faith and fair dealing. She states that the decisive question in the case is whether the Complaint plausibly alleges a lack of good faith by the Defendants. The Plaintiffs have met this burden. The Complaint alleges that the Defendants "unilaterally" and "arbitrarily and irrationally set the 'price' of authors' textbooks in such a manner that reduces the royalty payments owed to the authors and appropriates what should go to authors instead to McGraw Hill." The Complaint further alleges that these actions amount to "a bad faith effort to enrich the Defendants at the expense of authors." The Defendants counter that the "price" of the ebook component of a Connect textbook sale is determined fairly based on the market value of the ebook. But that argument does not address the sufficiency of the Complaint, and instead raises a factual question, which cannot be resolved on a motion to dismiss. Accordingly, the Complaint sufficiently pleads that the Defendants breached the implied covenant of good faith and fair dealing. III. Conclusion For the foregoing reasons, Judge Schofield granted in part the Defendants' motion to dismiss the Amended Consolidated Class Action Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and dismissed the breach of contract claim. The claim for breach of the implied covenant of good faith and fair dealing survives. The Defendants' letter motion requesting oral argument is denied as moot. The Clerk of Court is respectfully directed to close the motions at Docket Numbers 34 and 42. A full-text copy of the Court's Jan. 11, 2022 Opinion & Order is available at https://tinyurl.com/2p86t2eu from Leagle.com. MDL 2903: Plaintiffs Seek to Strike Class Cert. Sur-Reply --------------------------------------------------------- In the class action lawsuit captioned as In Re: Fisher-Price Rock 'n Play Sleeper Marketing, Sales Practices, and Products Liability Litigation (MDL No. 2903), Case No. 1:19-md-02903-GWC (W.D.N.Y.), the Plaintiffs ask the Court to enter an order striking the Defendants' Sur-reply in Opposition to Class Certification except for the portions that address the opinions of Plaintiffs' rebuttal experts. In the alternative, permission of the Court allowing the Plaintiffs to respond to new case law and arguments raised for the first time in Defendants' Sur-Reply; together with such other relief as this Court deems just and proper, the Plaintiffs say. Fisher-Price is an American company that produces educational toys for infants, toddlers and preschoolers, headquartered in East Aurora, New York. A copy of the Plaintiffs' motion dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3ns3i0m at no extra charge.[CC] The Plaintiffs are represented by: Demet Basar, Esq. James B. Eubank, Esq. Paul W. Evans, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. W. Daniel "Dee" Miles, III 218 Commerce Street Montgomery, AL 36104 Telephone: (334) 269-2343 Facsimile: (334) 954-7555 E-mail: Demet.Basar@BeasleyAllen.com Dee.Miles@BeasleyAllen.com James.Eubank@BeasleyAllen.com Paul.Evans@BeasleyAllen.com - and - Terrence ("Terry") Connors, Esq. Andrew M. Debbins, Esq. CONNORS LLP 1000 Liberty Building Buffalo, NY 14202 Telephone: (716) 852-5533 E-mail: tmc@connorsllp.com amd@connorsllp.com MDL 2998: Pretrial Sched Order Amended in Pork Antitrust Suit ------------------------------------------------------------- In the class action lawsuit Re: Pork Antitrust Litigation, Case No. 0:21-md-02998-JRT-HB (D. Minn.), the Hon. Judge Hildy Bowbeer entered an order amending the pretrial scheduling order regarding class certification deadlines as follows: Event Current New Deadline Deadline -- Plaintiffs to File Motion Feb. 7, 2022 May 2, 2022 for Class Certification and Supporting Expert Reports: -- Defendants to File and April 8, 2022 June 30, 2022 Serve Daubert Motions to Exclude Expert Opinion Pertaining to Class Certification: -- Defendants to File and April 8, 2022 June 30, 2022 Serve Memorandum in Opposition to Class Certification with Supporting Documents and Expert Reports: -- Plaintiffs to File and June 7, 2022 Aug. 29, 2022 Serve Daubert Motions to Exclude Expert Opinion Pertaining to Class Certification and Memoranda in Response to Daubert Motions: -- Plaintiffs to File and June 7, 2022 Aug. 29, 2022 Serve Reply and Rebuttal Expert Report to Motion for Class Certification: -- Defendant to File and July 22, 2022 Oct. 13, 2022 Serve Memoranda in Response to any Daubert Motions filed by Plaintiffs and their Reply Iso their Daubert Motions: -- The Plaintiffs to File Aug. 22, 2022 Nov. 14, 2022 and Serve Reply Memoranda ISO Their Daubert Motions: A copy of the Court's order dated Jan. 10, 2021 is available from PacerMonitor.com at https://bit.ly/321w8gI at no extra charge.[CC] MEDICAL MANAGEMENT: Bid for Class Status Withdrawn w/o Prejudice ---------------------------------------------------------------- In the class action lawsuit captioned as DONNA FRAWLEY v. MEDICAL MANAGEMENT GROUP OF NEW YORK, INC., Case No. 21-CV-8894-AJN-SLC (S.D.N.Y.), the Hon. Judge Sarah L. Cave entered an order granting the parties stipulation as follows: 1. The Motion for Class Certification is withdrawn without prejudice; and 2. Any subsequent Class Certification Motion shall be deemed to have been filed on December 7, 2021 for all substantive purposes. The plaintiff and the putative class filed a Motion for Class Certification on December 7, 2021. On December 15, 2021 the Court directed to parties to confer about a stipulation to defer the class certification adjudication to a later stage of this case. The New York Medical Group Management Association (NYMGMA) is a resource for healthcare professionals and medical group managers throughout the state. A copy of the Court's order dated Jan. 10, 2021 is available from PacerMonitor.com at https://bit.ly/323gykT at no extra charge.[CC] The Plaintiff is represented by: Maia Goodell, Esq. KAKALEC LAW PLLC 195 Montague Street, 14th Floor Brooklyn, NY 11201 Telephone: (212) 705-8730 Facsimile: (646) 759-1587 E-mail: maia@kakaleclaw.com The Defendant is represented by: Stephen J. Barrett, Esq. Jura C. Zibas, Esq. Stephen J. Barrett, Esq. WILSON ELSER MOSKOWITZ EDELMAN & DICKET LLP York Inc. 150 East 42nd Street New York, NY 10017 Telephone: (212) 490-3000 Facsimile: (212) 490-3038 E-mail: jura.zibas@wilsonelser.com stephen.barrett@wilsonelser.com MICHAEL MONTALVO: Court Enters Order on Case Management & Deadlines ------------------------------------------------------------------- In the class action lawsuit captioned as Anthony Celluci v. Michael Montalvo, Case No. 6:21-cv-02175 (M.D. Fla.), the Hon. Judge Paul G. Byron entered an endorsed order regarding case management and deadlines. The parties are directed to confer regarding deadlines pertinent to a motion for class certification and advise the Court of agreeable deadlines in their case management report. The deadlines should include a deadline for (1) disclosure of expert reports - class action, plaintiff and defendant; (2) discovery - class action; (3) motion for class certification; (4) response to motion for class certification; and (5) reply to motion for class certification. The nature of suit states Torts -- Personal Property -- Other Fraud.[CC] MILLIMAN INC: Mattson ERISA Suit Alleges Breach of Fiduciary Duty ----------------------------------------------------------------- JOANNA P. MATTSON, on behalf of herself and all others similarly situated, Plaintiff v. MILLIMAN, INC.; THE BOARD OF DIRECTORS OF MILLIMAN, INC.; THE MILLIMAN INVESTMENT COMMITTEE, and its members; THE MILLIMAN ADMINISTRATIVE COMMITTEE, and its members, Does 1-30, Defendants, Case No. 2:22-cv-00037 (W.D. Wash., Jan. 13, 2022) is brought by the Plaintiff for breach of fiduciary duty under the Employee Retirement Income Security Act against Defendants Milliman, Inc., the Board of Directors of Milliman, Inc. and its members, the committee that selects investment options for the Profit Sharing and Retirement Plan and its members, as well as the committee that administers the Plan and its members. The Milliman Defendants are fiduciaries of the Plan. Accordingly, when constructing an investment line-up for the Plan, Milliman must independently investigate and regularly monitor each of the Plan's investment options with the care and skill of a prudent investor. The Milliman Defendants allegedly breached their fiduciary duty by failing to prudently monitor and by failing to remove three of the Plan's poorly performing investment options. This failure to act has had devastating consequences for Plaintiff's and other participants' retirement accounts, asserts the complaint. To date, a suite of target risk funds: the Unified Trust Wealth Preservation Strategy Target Growth Fund, the Unified Trust Wealth Preservation Strategy Target Moderate Fund, and the Unified Trust Wealth Preservation Strategy Target Conservative Fund have taken in nearly a quarter billion dollars of retirement investments from Plan participants. The Milliman Defendants' imprudent decision to retain these Unified Funds has simultaneously impaired the Plan's overall investment performance and squandered millions in participants' retirement savings, says the suit. Milliman, formerly Milliman & Robertson, is an international actuarial and consulting firm based in Seattle, Washington.[BN] The Plaintiff is represented by: Paul R. Taylor, Esq. BYRNES KELLER CROMWELL LLP 1000 Second Avenue, 38th Floor Seattle, WA 98104 Telephone: (206) 622-2000 Facsimile: (206) 622-2522 E-mail: ptaylor@byrneskeller.com - and - Charles Field, Esq. Yusuf Parray, Esq. SANFORD HEISLER SHARP, LLP 2550 Fifth Avenue, 11th Floor San Diego, CA 92103 Telephone: (619) 577-4253 Facsimile: (619) 577-4250 E-mail: cfield@sanfordheisler.com yparray@sanfordheisler.com - and - Johan Conrod, Esq. Shaun Rosenthal, Esq. SANFORD HEISLER SHARP, LLP 700 Pennsylvania Avenue SE, Suite 300 Washington, DC 20003 Telephone: (202) 499-5200 Facsimile: (202) 499-5199 E-mail: jconrod@sanfordheisler.com srosenthal@sanfordheisler.com NEW YORK: District Court Certifies Class in Raymond v. DOCCS ------------------------------------------------------------ In the case, LATOYA RAYMOND and JAN JAVIER SANTIAGO GARCIA, individually and on behalf of all others similarly situated, Plaintiffs v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION; ANTHONY J. ANNUCCI, Acting Commissioner, in his official capacity; and THE STATE OF NEW YORK, Defendants, Case No. 9:20-CV-1380 (N.D.N.Y.), Judge David N. Hurd of the U.S. District Court for the Northern District of New York granted the Plaintiffs' motion for certification. I. Background On Nov. 6, 2020, Plaintiffs Raymond and Garcia filed a complaint in the district against the Defendants, the New York State Department of Corrections and Community Supervision ("DOCCS"), its Acting Commissioner Anthony J. Annucci, and New York State as a whole. The Plaintiffs essentially allege that the Defendants discriminated against them in violation of the Americans with Disabilities Act, 42 U.S.C. Section 12132 (the "ADA"), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794 (the "Rehabilitation Act"). In addition, they claim that there is an entire class of similarly situated inmates in need of similar relief. At its core, the Plaintiffs' complaint alleges that the Defendants' administration of the Shock Incarceration Program ("SIP") and the Comprehensive Alcohol and Substance Abuse Treatment program ("CASAT") discriminates against disabled people. The Plaintiffs complain that that system unjustly infringes on the rights of disabled persons, and each believes that she or he is a prime example. To their point, neither plaintiff was sentenced into SIP. For her part, Raymond applied for SIP and was initially accepted. When she transferred to the facility where her program was scheduled to begin, though, she was turned down because she has Type I diabetes. Garcia's story is not dissimilar. He passed the initial screening for SIP eligibility and was transferred into a facility to begin the program. Once there, though, DOCCS medical staff took an X-ray of his back and determined that his "severe degenerative disc disease, spondylosis, and spinal stenosis" disqualified him from SIP. On Nov. 6, 2020, the Plaintiffs filed the present complaint. At bottom, they argue that the Defendants' policy of only permitting disabled persons to earn eligibility for immediate release if they were sentenced into SIP while permitting non-disabled inmates to volunteer for SIP and earn early release whether they were sentenced into it or not violates their rights under the ADA and the Rehabilitation Act. The Plaintiffs are after injunctive and declaratory relief to halt the Defendants' alleged violations of the rights of the disabled, as well as nominal and compensatory damages. To challenge that policy on a statewide level, on June 1, 2021, the Plaintiffs moved to certify a class of similarly situated inmates to stretch that injunction to reach every inmate with a disability or impairment that excludes them from SIP. They ask the Court to certify the case as a class action under Federal Rule of Civil Procedure ("Rule") 23. That motion, having been fully briefed, will now be decided on the submissions and without oral argument. II. Discussion Class certification is the exception, not the rule, so the party moving for class certification "must affirmatively demonstrate" compliance with Rule 23. In practice, that means that a would-be class plaintiff is saddled with proving entitlement to class certification by a preponderance of the evidence. Carrying that burden first calls for a "rigorous analysis" of whether the case meets Rule 23(a)'s requirements. There are four: "(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation." In addition, the Second Circuit has noted that a purported class must "be defined using objective criteria that establish a membership with definite boundaries," under what courts refer to as the "ascertainability doctrine." Finally, the class must "be defined in such a way that anyone within it would have standing." But even if Rule 23(a) is satisfied, the plaintiff must also prove that one of the three subcategories of permissible class actions under Rule 23(b) fit the particular case. "Such an analysis will frequently entail overlap with the merits of the plaintiff's underlying claim because the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." A. Rule 23(a) First, the Plaintiffs claim that they have established numerosity because 4,427 people were excluded from SIP on the basis of a physical or mental impairment between January 2015 and May of 2019 alone. Second, they posit that they have presented just such a single common question for the class: Does the Defendants' policy violate the ADA and the Rehabilitation Act because it requires disabled inmates to be sentenced into relief that non-disabled inmates can simply volunteer for? Third, as to typicality, the Plaintiffs are not challenging their individual exclusion from SIP, but are challenging the disparate treatment of inmates protected by the ADA and Rehabilitation Act under the Defendants' current administrative regime. Fourth, the Defendants also object to the Plaintiffs' adequacy as class representatives. Fifth, the Plaintiffs provided hard numbers for inmates rejected from SIP based on physical or mental impairments from 2015 to 2019. Finally, the Defendants insist that the proposed class would not ensure that every member has standing. B. Rule 23(b)(2) The Defendants' arguments that the Plaintiffs have failed to prove that their proposed class satisfies Rule 23(b)(2)'s requirements are twofold. First, they argue that he Plaintiffs have failed to show that they have "acted on grounds that apply generally to the class." Second, they argue that a class action would not be a manageable or efficient means of dealing with these disputes, and thus class certification would be inappropriate for this alternative reason as well. C. Conclusion Judge Hurd holds that it is tough to dispute that DOCCS is between a rock and a hard place. Virtually everything they are doing to draw the Plaintiffs' ire is mandated by New York's legislature. In fact, even the "rigorous physical activity" that is part and parcel of SIP was expressly ordered by the statutes directing DOCCS to create SIP in the first place. Still, the fact remains that the Defendants as a whole may be administering a program that deprives disabled and otherwise-impaired inmates of the opportunity to volunteer for a program with substantial benefits. If that proves to be the case, then it may also be that that program infringes on rights protected by the ADA and the Rehabilitation Act. But this much is certain: Whether the Defendants' administration of SIP and CASAT violates the ADA and Rehabilitation Act will be decided in one take, not in piecemeal litigation. III. Order Therefore, Judge Hurd granted the Plaintiffs' motion for certification of the case as a class action under Federal Rule of Civil Procedure 23(b)(2). The Plaintiffs' claims under Title II of the Americans with Disabilities Act and the Rehabilitation Act of 1973 are certified as a Rule 23(b)(2) class action on behalf of a class defined as all persons who are (1) currently incarcerated or who will be incarcerated in a New York state prison; (2) not judicially ordered to be enrolled in the SIP by the sentencing court; (3) are or will be disqualified from the SIP for medical or mental health reasons; (4) otherwise eligible to enroll in the SIP; and (5) denied an alternative six-month pathway to early release from prison. Named Plaintiffs Latoya Raymond and Jan Javier Santiago Garcia are appointed as the class Plaintiffs and the Prisoners' Legal Services of New York are appointed as the class counsel. A full-text copy of the Court's Jan. 11, 2022 Memorandum-Decision & Order is available at https://tinyurl.com/2p9c73cx from Leagle.com. PRISONERS' LEGAL SERVICES OF NEW YORK-BUFFALO OFFICE, ANDREW A. STECKER, ESQ. -- astecker@plsny.org -- in Buffalo, New York, Attorneys for the Plaintiffs. PRISONERS' LEGAL SERVICES OF NEW YORK-ALBANY OFFICE, JAMES M. BOGIN, ESQ. -- 1109jbogin@plsny.org -- in Albany, New York, Attorneys for the Plaintiffs. HON. LETITIA JAMES, Attorney General for the State of New York, ROBERT J. ROCK, ESQ., Assistant Attorney General, in Albany, New York, Attorneys for the Defendants. NEW YORK: Raymond Suit Wins Rule 23 Class Certification ------------------------------------------------------- In the class action lawsuit captioned as LATOYA RAYMOND and JAN JAVIER SANTIAGO GARCIA, individually and on behalf of all others similarly situated, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION; ANTHONY J. ANNUCCI, Acting Commissioner, in his official capacity; and THE STATE OF NEW YORK, Case No. 9:20-cv-01380-DNH-CFH (N.D.N.Y.), the Hon. Judge David N. Hurd entered an order: 1. granting the Plaintiffs' motion for certification of this case as a class action under Federal Rule of Civil Procedure 23(b)(2); 2. certifying the Plaintiffs' claims under Title II of the Americans with Disabilities Act and the Rehabilitation Act of 1973 as a Rule 23(b)(2) class action on behalf of a class defined as: "all persons who are (1) currently incarcerated or who will be incarcerated in a New York state prison; (2) not judicially ordered to be enrolled in the SIP by the sentencing court; (3) are or will be disqualified from the SIP for medical or mental health reasons; (4) otherwise eligible to enroll in the SIP; and (5) denied an alternative six-month pathway to early release from prison;" 3. appointing plaintiffs Latoya Raymond and Jan Javier Santiago Garcia as class plaintiffs; and 4. appointing Prisoners' Legal Services of New York as class counsel. On November 6, 2020, the plaintiffs Latoya Raymond and Jan Javier Santiago Garcia filed a complaint in this district against defendants the New York State Department of Corrections and Community Supervision (DOCCS), its Acting Commissioner Anthony J. Annucci, and New York State as a whole. The Plaintiffs essentially allege that defendants discriminated against them in violation of the Americans with Disabilities Act, 42 U.S.C. section 12132 (the ADA), and Section 504 of the Rehabilitation Act of 1973. In addition, the plaintiffs claim that there is an entire class of similarly situated inmates in need of similar relief. At its core, plaintiffs' complaint alleges that defendants' administration of the Shock Incarceration Program (SIP) and the Comprehensive Alcohol and Substance Abuse Treatment program (CASAT) discriminates against disabled people. To challenge that policy on a statewide level, plaintiffs now ask this Court to certify this case as a class action under Federal Rule of Civil Procedure (Rule) 23. The New York State Department of Corrections and Community Supervision is the department of the New York State government that maintains the state prisons and parole system. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3FLNFHP at no extra charge.[CC] The Attorneys for the Plaintiffs are: Andrew A. Stecker, Esq. James M. Bogin, Esq. PRISONERS' LEGAL SERVICES OF NEW YORK-BUFFALO OFFICE Lafayette Square, Suite 510 Buffalo, NY 14203 The Attorneys for the Defendants are: Robert J. Rock, Esq. State of New York The Capitol Albany, New York 12224 Assistant Attorney General NISSAN NORTH: Discovery & Class Cert. Deadlines Extended in Harris ------------------------------------------------------------------ In the class action lawsuit captioned as BOBBY HARRIS, individually and on behalf of all others similarly situated, v. NISSAN NORTH AMERICA, INC, and DOES 1 through 10, inclusive, Case No. 2:20-cv-06021-CJC-GJS (C.D. Cal.), the Hon. Judge Cormac J. Carney entered an order granting joint stipulation regarding discovery and class certification deadlines. The current deadlines for discovery and class certification are extended as follows: Description of Event Current New Deadline Deadline -- Deadline for fact discovery: Feb. 25, 2022 Nov. 8, 2022 -- Deadline for motion for April 23, 2022 Dec. 7, 2022 class certification, and for disclosures and reports of any experts that Plaintiff intends to rely on at class certification: -- Deadline for opposition to June 30, 2022 Feb. 22, 2023 motion for class certification, and for disclosures and reports of any experts Defendant intends to rely on at class certification: -- Deadline for any reply in Aug. 25, 2022 April 18, 2023 support of a motion for class certification: -- Deadline for filing summary Aug. 25, 2022 April 18, 2023 judgment motion or summary adjudication (any party may file earlier) -- Hearing on motion for Sept. 19, 2022 May 15, 2023 class certification: Nissan North America, Inc., doing business as Nissan USA, is the North American headquarters, and a wholly owned subsidiary of Nissan Motor Corporation of Japan. A copy of the Court's order dated Jan. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3A4DigE at no extra charge.[CC] NORTH AMERICAN: Court Sets Briefing Schedule in McGhee Class Suit ----------------------------------------------------------------- In the class action lawsuit captioned as McGhee v. North American Bancard, LLC, Case No. 3:17-cv-00586 (S.D. Cal.), the Hon. Judge Anthony J Battaglia entered an order setting briefing schedule as follows: -- Responses due by: Jan 24, 2022 -- Replies due by: Jan 31, 2022 -- Motion Hearing set for: March 10, 2022. North American Bancard, LLC provides merchant services and card processing solutions. The nature of suit states contract - other contract.[CC] NORWICH COMMERCIAL: Scheduling Order, Case Mng't Plan Entered ------------------------------------------------------------- In the class action lawsuit captioned as LEONEL COSTA, on behalf of himself and others similarly situated, v. NORWICH COMMERCIAL GROUP, INC. d/b/a NORCOM MORTGAGE, Case No. 3:21-cv-01126-SALM (D. Conn.), the Hon. Judge Sarah A. L. Merriam entered a scheduling order and case management plan as follows: -- Any motion to amend the complaint Jan. 21, 2022 or join parties must be filed by plaintiff no later than: -- Any motion to amend the answer Feb. 4, 2022 or join parties must be filed by defendant no later than: -- Any party with a claim or Feb. 15, 2022 counterclaim for damages shall serve a damages analysis on opposing counsel, in compliance with Rule 26(a)(1)(A)(iii), on or before: -- All discovery will be Sept. 9, 2022 completed (not propounded) by: -- In order to ensure that this July 1, 2022 deadline is met, all written discovery requests must be propounded on or before: -- The parties shall designate June 1, 2022 any trial experts and provide opposing counsel with reports from retained experts pursuant to Fed. R. Civ. P. 26(a)(2) on any issues on which they bear the burden of proof by: -- The parties shall designate July 11, 2022 any trial experts and provide opposing counsel with reports from retained experts pursuant to Fed. R. Civ. P. 26(a)(2) on any issues on which they do not bear the burden of proof by: -- All depositions of experts shall Sept. 9, 2022 be completed by the close of discovery: -- Plaintiff's motion for class Oct. 7, 2022 certification must be filed on or before: -- A joint status report of March 11, 2022 counsel shall be filed on or before: Norwich was founded in 1988. The company's line of business includes arranging loans for others on a commission or fee basis. A copy of the Court's order dated Jan. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3GzRgts at no extra charge.[CC] NRX PHARMACEUTICALS: Dal Sues Over 25.45% Decline of Stock Price ---------------------------------------------------------------- CRISTIAN DAL BOSCO, individually and on behalf of all others similarly situated, Plaintiffs v. NRX PHARMACEUTICALS, INC., JONATHAN C. JAVITT, and WILLIAM FRICKER, Defendants, Case No. 1:22-cv-00066-UNA (D. Del., January 18, 2022) is a class action against the Defendants for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. According to the complaint, the Defendants made materially false and misleading statements with the U.S. Securities and Exchange Commission regarding NRx Pharmaceuticals' business, operations, and compliance policies in order to trade NRx securities at artificially inflated prices between June 1, 2021 and November 4, 2021. Specifically, the Defendants failed to disclose that: (i) NRx's Emergency Use Authorization (EUA) Application for ZYESAMI, an investigational pre-commercial drug for COVID-19 related respiratory failure, contained insufficient data regarding the potential benefits and risks of ZYESAMI; (ii) accordingly, the Food and Drug Administration (FDA) was unlikely to approve the ZYESAMI EUA Application in its present form; and (iii) as a result, the company's public statements were materially false and misleading at all relevant times. When the truth emerged, NRx's stock price fell $2.27 per share, or 25.45 percent, to close at $6.65 per share on November 5, 2021. As a result of the Defendants' alleged wrongful acts and omissions, and the precipitous decline in the market value of NRx securities, the Plaintiff and other Class members have suffered significant losses and damages. NRX Pharmaceuticals, Inc. is a clinical-stage small molecule pharmaceutical company, with principal executive offices located at 1201 Orange Street, Suite 600, Wilmington, Delaware. [BN] The Plaintiff is represented by: Ryan M. Ernst, Esq. BIELLI & KLAUDER, LLC 1204 N. King Street Wilmington, DE 19801 Telephone: (302) 803-4600 E-mail: rernst@bk-legal.com - and – Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Thomas H. Przybylowski, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com tprzybylowski@pomlaw.com ODONATE THERAPEUTICS: Settlement in Kendall Gets Initial Nod ------------------------------------------------------------ In the class action lawsuit captioned as KEVIN KENDALL, individually and on behalf of all others similarly situated, v. ODONATE THERAPEUTICS, INC., KEVIN C. TANG, MICHAEL HEARNE, JOHN G. LEMKEY, Case No. 3:20-cv-01828-H-JLB (S.D. Cal.), the Hon. Judge Marilyn L. Huff entered an order: 1. certifying class for settlement purposes; 2. preliminarily approving class settlement; 3. appointing class representative and co-counsel; 4. approving class notice; and 5. scheduling final approval hearing. This is a securities class action against Odonate and three of its officers under Section 10(b) and 20(a) of the Securities Exchange Act of 1934. The case is brought on behalf of all persons and entities who purchased or otherwise acquired the stock of Odonate between December 7, 2017 and March 25, 2021. Odonate is a pharmaceutical company based in San Diego. Odonate's single, primary drug candidate is tesetaxel, an orally administered chemotherapy agent developed to treat patients with locally advanced or metastatic breast cancer. The Defendants Tang, Hearne, and Lemkey were officers and collectively the majority shareholder of Odonate during the Class Period. In December 2017, Odonate initiated a Phase study of tesetaxel. The Plaintiff alleges that between December 8, 2017 and February 23, 2021, Odonate filed for an Initial Public Offering (IPO) with the Securities and Exchange Commission (SEC) and held multiple subsequent public offering of its shares in order to raise funds for Odonate's continued operations and tesetaxel's study. The Plaintiff alleges that through its IPO and subsequent offerings, Odonate raised $394.6 million in gross proceeds and $369.78 million in net proceeds. -- Proposed Settlement Under the proposed settlement, Defendants will pay the settlement amount of $12,750,000.00. The settlement will be distributed to class members pro rata in accordance with a plan of allocation that has been designed by Co- Lead Counsel. Under the plan of allocation, a Recognized Loss amount for each share purchased within the Class Period will be calculated based when the stock was purchased or acquired and, if applicable, sold. The Plaintiff seeks to certify a class pursuant to Federal Rule of Civil Procedure 23(b)(3) for purposes of settlement. The settlement class includes all persons who purchased or otherwise acquired stock of Odonate between December 7, 2017 and March 25, 2021, both dates inclusive. Excluded from the class are Defendants; members of Defendants’ immediate families and 25 their affiliates; any entity in which any Defendant had a controlling interest during the Class Period; any person who served as an officer or director of Odonate during the Class Period; the judges presiding over the action and the immediate family members of such judges; any persons or entities listed on the Settlement Exclusion List; and the successor, heirs, and assignees of any excluded person. Odonate Therapeutics is a pharmaceutical company. The Company is engaged in the development of therapeutics to improve and extend the lives of patients with cancer. It is focused on the development of tesetaxel, a novel chemotherapy agent. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3nz9CDD at no extra charge.[CC] OGDEN CITY, UT: ORAA Suit Dismissed for Failure to State a Claim ---------------------------------------------------------------- In the case, OGDEN REGIONAL AIRPORT ASSOCIATION, INC., et al., Plaintiffs v. OGDEN CITY AIRPORT and OGDEN CITY, Defendants, Case No. 1:21-cv-00075-DBB-DBP (D. Utah), Judge David Barlow of the U.S. District Court for the District of Utah granted in part and denied in part the Defendants' motion to dismiss. Defendants Ogden City Airport and Ogden City moved to dismiss the Plaintiffs' amended class action complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. I. Introduction The case involves a dispute between dozens of Plaintiffs and Defendants Ogden City Airport and Ogden City regarding hangars the Plaintiffs have built and maintained on land located at and leased from Ogden City Airport. The Plaintiffs claim that the Defendants are planning to cease renewing the Plaintiffs' ground leases, contrary to the Defendants' historical course of conduct, and rely on the abandonment provisions in the parties' lease agreements to seize ownership of and use the Plaintiffs' hangars to improve the profitability of Ogden City Airport. The Plaintiffs argue that these actions violate their equitable and constitutional property rights in their hangars. II. Background Ogden City Airport "is a public aviation facility owned and managed by" the city of Ogden, Utah. Historically, the Defendants have leased ground within the Ogden City Airport compound to the public for the construction, maintenance, and use of aircraft hangars. Under the terms of the ground lease agreements, lessees own any hangars or other improvements they have built on the leased ground. However, if a lease is not renewed, and lessees fail to remove their hangars and other improvements within 60 days of the agreement's expiration or termination, the improvements are deemed abandoned and become the property of Defendants. The Defendants have not acquired ownership of any hangars in this way for several decades, however, because they virtually always have renewed ground lease agreements upon the Plaintiffs' request. The Plaintiffs are individuals and entities who own hangars on leased ground at Ogden City Airport. Due to the Defendants' historical practice of consistently renewing lease agreements, some hangars have been passed from generation to generation within families or been put into family trusts for inheritance. The consistency and ease with which ground leases have been renewed has led many hangar owners to spend hundreds of thousands, and even millions, of dollars to build, maintain, and upgrade their hangars over the years. At the end of 2018, Ogden City Airport proposed adopting a new business plan to improve its profitability, as it was operating at a loss of approximately $450,000 per year. As one way to increase its revenue, Ogden City Airport proposed modifications to its leasing policy. All future ground leases for construction of new hangars would last no longer than a period of time sufficient to allow lessees to amortize the costs of construction, after which the hangars would belong to Ogden City Airport and be leased out. Similarly, all ground leases for existing hangars would not be renewed beyond the point at which their owners could have adequately amortized their costs. If owners did not remove their hangars after their existing ground leases expired, Ogden City Airport would deem the hangars abandoned, claim ownership pursuant to the lease agreement, and then lease them if they were younger than 50 years old and destroy them if they were older. The business plan was not formally adopted at that time. However, on April 5, 2021, Bryant Garrett, the manager of Ogden City Airport, submitted proposed amendments to Title 8 of Ogden City's Municipal Code that would implement the business plan's proposed modifications to ground leases. Over objections from the Ogden City Airport advisory board, the Ogden Regional Airport Association, and the majority of hangar owners, the Ogden City Council adopted the amendments to Title 8. According to the Plaintiffs, the amendments allow the Defendants to "exploit" the abandonment provisions in the ground lease agreements to take ownership of the Plaintiffs' hangars as soon as Defendants decide not to renew the leases. Although the agreements allow hangar owners to remove their hangars when their lease term ends, the great expense of removal makes it unlikely that they will do so. Thus, the Defendants' refusal to renew the Plaintiffs' lease agreements as consistently as they have done in the past may prevent the Plaintiffs from seeing any significant return on their investments in building, updating, and improving their hangars. On May 26, 2021, the Plaintiffs filed a complaint against the Defendants seeking relief on five grounds: Estoppel, physical taking, regulatory taking, deprivation of rights under 42 U.S.C. Section 1983, and a claim for declaratory relief. On June 15, 2021, the Plaintiffs filed an amended class action complaint asserting the same five causes of action. The Defendants moved to dismiss the Plaintiffs' claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on Aug. 23, 2021. III. Discussion The Defendants argue that the Plaintiffs' claims should be dismissed on two independent grounds. First, the Defendants argue that the court lacks jurisdiction over the Plaintiffs' proposed class action. Second, they argue that the Plaintiffs' estoppel, physical taking, regulatory taking, and unlawful deprivation of airport access claims should be dismissed for failure to state a claim. A. The Court Has Jurisdiction Over this Action. The Plaintiffs assert that the Court has jurisdiction under 28 U.S.C. Section 1331 because this dispute involves claims under federal law, specifically, their physical taking, regulatory taking, and Section 1983 claims. The Defendants argue that, notwithstanding the Plaintiffs' federal claims, the Court lacks jurisdiction because (1) 28 U.S.C. Section 1332(d)(5) prohibits federal courts from exercising jurisdiction over class actions in which "States, State officials, or other governmental entities against whom the district court may be foreclosed from ordering relief" are "primary defendants," as is the case here, and (2) the current class action falls within the "local controversy exception" of the Class Action Fairness Act of 2005 ("CAFA"). Judge Barlow holds that the Defendants' jurisdiction arguments are misguided because neither the government entity defendant exception nor the local controversy exception applies to class actions that are based on federal question jurisdiction, such as the case. The local controversy and government entity exceptions are both part of CAFA and are codified at 28 U.S.C. Section 1332(d)(4) and (d)(5), respectively. Because some of the Plaintiffs' claims arise under federal law and the others fall within the Court's supplemental jurisdiction, Judge Barlow finds that the Plaintiffs have met their burden of establishing that the Court has subject matter jurisdiction over the case. Therefore, the Defendants' motion to dismiss under Rule 12(b)(1) is denied. B. Plaintiffs Have Failed to State Any Claim Upon Which Relief Can Be Granted. The Defendants argue that the Plaintiffs' estoppel, physical taking, regulatory taking, and unauthorized deprivation of airport access claims should be dismissed for failure to state a claim. They do not address the Plaintiffs' claim for declaratory relief in their motion to dismiss, but the fate of that claim is largely intertwined with the fate of the others, as will be discussed in more detail below. Because Judge Barlow ultimately finds that the Plaintiffs have failed to state claims of estoppel, physical taking, regulatory taking, and a deprivation of rights under Section 1983, and the Plaintiffs have provided no other jurisdictional basis for the Court to provide the additional declaratory relief they seek, the Plaintiffs' Amended Complaint must be dismissed. C. Plaintiffs May Seek Leave to File a Motion to Amend Complaint. In the Plaintiffs' Opposition to the Defendants' Motion to Dismiss, the Plaintiffs requested that the Court grants them leave to file a second amended complaint if it dismisses their claims. Judge Barlow holds that it is in the interests of justice to allow the Plaintiffs an opportunity to amend, if they have good cause to do so, though they must seek such an opportunity through a separate motion. If they elect to file a motion seeking leave to amend, it must be filed with the Court within 14 days of entry of the Order. IV. Order For the foregoing reasons, Judge Barlow granted in part and denied in part the Defendants' Motion to Dismiss. The Defendants' motion to dismiss for lack of subject-matter jurisdiction is denied and its motion to dismiss for failure to state a claim upon which relief can be granted is granted. The Plaintiffs may file a motion seeking leave to file an amended complaint if they so desire within 14 days of the Order. A full-text copy of the Court's Jan. 11, 2022 Memorandum Decision & Order is available at https://tinyurl.com/yc8jw3z8 from Leagle.com. OGDEN CITY: Court Narrows Claims in ORAAI Suit ---------------------------------------------- In the class action lawsuit captioned as OGDEN REGIONAL AIRPORT ASSOCIATION, INC., et al., v. OGDEN CITY AIRPORT and OGDEN CITY, Case No. 1:21-cv-00075-DBB-DBP (D. Utah), the Hon. Judge entered an order granting in part and denying in part defendants' motion to dismiss. The Defendants' motion to dismiss for lack of subject-matter jurisdiction is denied and its motion to dismiss for failure to state a claim upon which relief can be granted is granted. The court finds that it is in the interests of justice to allow Plaintiffs an opportunity to amend, if they have good cause to do so, though they must seek such an opportunity through a separate motion. If Plaintiffs elect to file a motion seeking leave to amend, it must be filed with the court within 14 days of entry of this order. This case involves a dispute between dozens of plaintiffs and the Defendants Ogden City Airport and Ogden City regarding hangars Plaintiffs have built and maintained on land located at and leased from Ogden City Airport. Plaintiffs claim that the Defendants are planning to cease renewing Plaintiffs' ground leases, contrary to Defendants' historical course of conduct, and rely on the abandonment provisions in the parties' lease agreements to seize ownership of and use Plaintiffs' hangars to improve the profitability of Ogden City Airport. The Plaintiffs argue that these actions violate their equitable and constitutional property rights in their hangars. The Defendants have moved to dismiss Plaintiffs' amended class action complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. The Plaintiffs have filed a response opposing the motion and Defendants have replied. 5 Having considered the parties' briefing and relevant law, the court determines that oral argument is not needed to resolve the motion. Ogden City Airport "is a public aviation facility owned and managed by" the city of Ogden, Utah. Historically, Defendants have leased ground within the Ogden City Airport compound to the public for the construction, maintenance, and use of aircraft hangars. The Plaintiffs are individuals and entities who own hangars on leased ground at Ogden City Airport. Due to Defendants' historical practice of consistently renewing lease agreements, some hangars have been passed from generation to generation within families or been put into family trusts for inheritance. The consistency and ease with which ground leases have been renewed has led many hangar owners to spend hundreds of thousands, and even millions, of dollars to build, maintain, and upgrade their hangars over the years. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3GDol7O at no extra charge.[CC] OHIO NATIONAL: Veritas Suit Seeks to Certify Broker-Dealers Class ----------------------------------------------------------------- In the class action lawsuit captioned as VERITAS INDEPENDENT PARTNERS, LLC, et al., on behalf of all others similarly situated, v. THE OHIO NATIONAL LIFE INSURANCE COMPANY, et al., Case No. 1:18-cv-00769-DRC (S.D. Ohio), the Plaintiffs Veritas Independent Partners, LLC and Avantax Investment Services, Inc. ask the Court to enter an order: 1. certifying the following Class in this action against the Defendants under Count I: "All broker-dealers with whom Ohio National had entered into a Selling Agreement with (1) the same Section 9 as in the Plaintiffs' Selling Agreements and (2) Commission Schedule(s) that state "trail commissions will continue to be paid to the broker-dealer of record while the selling agreement remains in force and will be paid on a particular contract until the contract is surrendered or annuitized," and for whom Ohio National terminated the payment of trail commissions as to ONcore variable annuities in September 2018, effective December 2018;" 2. appointing them as Class representatives; and 3. appointing Geoffrey J. Moul, James B. Hadden, Brian K. Murphy, Joseph F. Murray, and Jonathan P. Misny of Murray Murphy Moul + Basil LLP as counsel for the Class pursuant to Rule 23(g)(1). The Plaintifffs brought this action against the Defendants, arising out of the termination of contractually agreed-upon trail commissions, without cause. The Plaintiffs' claims turn on the meaning of standard documents known as the "Selling Agreement" (including incorporated commission schedules). Damages consist of the lost trail commissions. The claims will be decided one way or the other based on common proof and methodology. Ohio National standardized its agreements with hundreds of broker-dealers. Until 2018, Ohio National sold variable annuity products. A variable annuity is an annuity that includes assets maintained in securities sub-accounts. While Ohio National previously sold annuities through its own captive broker-dealer and a single bank, around 1998, it sought to grow its variable annuity business. To do so, Ohio National engaged hundreds of third-party broker-dealers to sell its variable annuity products, by entering into its form Selling Agreements that set forth the parties' rights and obligations. No broker-dealer ever requested a change to Section 9, and no putative Class member ever requested a change to the language in the relevant commission schedules. No changes were made to any Selling Agreements with the putative Class that would change Ohio National's interpretation of Section 9 or its interpretation of the language regarding trail commissions in the relevant commission schedules. Ohio National advises that no discussions were had with any putative Class member about the meaning of Section 9 or the commission schedules before those were executed. Veritas Independent provides financial brokerage services. The Company specializes in buying and selling securities such as stocks and bonds. The Ohio National Life Insurance Company is a mutual insurance company headquartered in Cincinnati, Ohio, United States. Along with its affiliated companies, the Ohio National group offers life insurance, annuities, disability insurance, group retirement plans, and investment products. A copy of the Plaintiffs' motion to certify class dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3qHkf9v at no extra charge.[CC] The Plaintiffs are represented by: Geoffrey J. Moul, Esq. James B. Hadden, Esq. Geoffrey J. Moul, Esq. Joseph F. Murray, Esq. Brian K. Murphy, Esq. Jonathan P. Misny, Esq. MURRAY MURPHY MOUL + BASIL LLP 1114 Dublin Road Columbus, OH 43215 Telephone: (614) 488-0400 Facsimile: (614) 488-0401 E-mail: hadden@mmmb.com moul@mmmb.com murray@mmmb.com murphy@mmmb.com misny@mmmb.com ONE SOURCE TECHNOLOGY: Wright FCRA Suit Removed to D. Minnesota --------------------------------------------------------------- The case styled as Sharon Dekontee Wright, on behalf of herself and all others similarly situated v. One Source Technology, LLC doing business as: Asurint, Case No. 27-CV-21-15514, was removed from Hennepin County to the U.S. District Court for the District of Minnesota on Jan. 13, 2022. The District Court Clerk assigned Case No. 0:22-cv-00077-NEB-DTS to the proceeding. The lawsuit is brought over alleged violation of the Fair Credit Reporting Act. One Source Technology, LLC doing business as Asurint -- https://www.asurint.com/ -- is a background screening service located in Cleveland, Ohio.[BN] The Plaintiff is represented by: Ariana Kiener, Esq. E. Michelle Drake, Esq. John G. Albanese, Esq. BERGER MONTAGUE 1229 Tyler St NE., Ste. 205 Minneapolis, MN 55413 Phone: (612) 666-3066 Email: akiener@bm.net emdrake@bm.net jalbanese@bm.net The Defendant is represented by: Joseph G Schmitt, Esq. NILAN JOHNSON LEWIS PA 250 Marquette Avenue South, Suite 800 Minneapolis, MN 55401 Phone: (612) 305-7500 Fax: (612) 305-7501 Email: jschmitt@nilanjohnson.com ONEBEACON INSURANCE: MSP Seeks Reconsideration of Dec. 29 Order --------------------------------------------------------------- In the class action lawsuit captioned as MSP Recovery Claims, Series LLC v. OneBeacon Insurance Group, Ltd., et al., Case No. 6:20-cv-00553-RBD-EJK (M.D. Fla.), the Plaintiff asks the Court to enter an order granting its motion for reconsideration of the Court's order denying class certification. On December 29, 2021, this Court entered its Order, denying Plaintiff's Motion for Class Certification on the basis of purported defects in the proposed class definition and a lack of access to data critical to ascertaining the proposed class. Because (1) the requested data is available, accessible, and has always been clearly relevant to class certification and (2) the proposed definition is readily amended to cure any fail-safe concerns, Plaintiff submits that reconsideration is appropriate. Here, the fail-safe issue is averted entirely by redefining the class as: "All Medicare Advantage plans that provided benefits under Medicare Part C in the United States of America and its territories and made accident-related payments on behalf of a Medicare beneficiary, who made a bodily injury claim against Defendants' insurance policy that provided coverage for medical benefits within the last four years and 60 days from the filing of the complaint." Again, the class members are readily ascertained from a comparison of Defendant's data and Medicare and MAO data. And liability determinations on a class-wide basis are driven by a filtering of the Defendant's historical, electronic claims data whose accuracy Defendant cannot reasonably contest. MSP Recovery is the leading Medicaid and Medicare Secondary Payer Act Recovery Specialist. OneBeacon offer a range of specialty insurance products sold through independent agencies, regional and national brokers, wholesalers. A copy of the Plaintiff's motion dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3A3gjCK at no extra charge.[CC] The Plaintiff is represented by: Francesco A. Zincone, Esq. ARMAS BERTRAN PIERI 4960 S.W. 72nd Avenue Miami, FL 33155 Telephone: (305) 461-5100 E-Mail: fzincone@armaslaw.com OREGON: Seeks to Stay Reyes Proceedings Pending Resolution in Maney ------------------------------------------------------------------- In the class action lawsuit captioned as JUAN MANUEL REYES, v. SUSAN WASHBURN, Superintendent of EOCI; ANDREA NEISTADT, Assistant Superintendent of EOCI; L. LEGORE, Law Library Supervisor of EOCI; C. BOLLES, Law Library Coordinator; Capt. J. WALKER, Operations capt; Capt. T. STEWART, Institutional capt., Case No. 2:21-cv-01175-SB (D. Or.), the Defendants ask the Court to enter an order staying this case pending the resolution of the motion for class certification in Maney v. Brown, District Court of Oregon, Case No. 6:20-cv-00570-SB ("Maney"). The Defendants are seeking a brief stay of most federal cases that could fit within the putative classes of plaintiffs in Maney, pending resolution of the motion for class certification in Maney. The Plaintiff is a pro se adult in Oregon Department of Corrections (ODOC) custody. This motion relates to the ongoing COVID-19 litigation against ODOC and/or related persons in the District of Oregon. The Maney plaintiffs seek to certify the following putative classes: (1) a damages class that is composed of individuals that have been housed in ODOC facilities on or after February 1, 2020, and have tested positive or otherwise have been diagnosed with Covid-19; and (2) a wrongful death class consisting of the estates of adults incarcerated at ODOC facilities continuously since February 1, 2020 who died on or after March 8, 2020 and for whom Covid-19 caused or contributed to their death. The Motion to Certify seeks to certify a damages class and a wrongful death class. A copy of the Defendants' motion dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3GxtBtF at no extra charge.[CC] The Defendants are represented by: Ellen F. Rosenblum, Esq. Shannon M. Vincent, Esq. DEPARTMENT OF JUSTICE 1162 Court Street NE Salem, OR 97301-4096 Telephone: (503) 947-4700 Facsimile: (503) 947-4791 E-mail: Shannon.M.Vincent@doj.state.or.us ORIGINAL HOMESTEAD: Hakaj Seeks Restaurant Servers' Unpaid Wages ---------------------------------------------------------------- ORHAN HAKAJ, YAROSLAV LUPACHOV and SAHRUDIN RADONCIC, individually and on behalf of all others similarly situated, Plaintiffs v. THE ORIGINAL HOMESTEAD RESTAURANT INC. d/b/a OLD HOMESTEAD STEAKHOUSE, MARC SHERRY and GREGORY SHERRY, Jointly and Severally, Defendants, Case No. 1:22-cv-00353 (S.D.N.Y., Jan. 13, 2022) arises from the Defendants' alleged violations of the Fair Labor Standards Act and the New York Labor Law. The complaint alleges the Defendants' failure to pay Plaintiffs and class members minimum and overtime wages, failure to pay spread-of-hours compensation, failure to pay wages earned within the week such wages were due, failure to provide wage statements, unlawful withholding of gratuities, and illegal retaliation. The Plaintiffs are servers at Defendants' steakhouse located in the Meatpacking District neighborhood of Manhattan, New York. The Original Homestead Restaurant Inc., d/b/a Old Homestead Steakhouse, is a steakhouse established in 1868 whose flagship location is in Manhattan, New York City.[BN] The Plaintiffs are represented by: Brent E. Pelton, Esq. Taylor B. Graham, Esq. Kristen E. Boysen, Esq. PELTON GRAHAM LLC 111 Broadway, Suite 1503 New York, NY 10006 Telephone: (212) 385-9700 Facsimile: (212) 385-0800 PAPA INC: Class Certification Deadline Sought in Andersen --------------------------------------------------------- In the class action lawsuit captioned as Carice Ashley Andersen, individually and on behalf of all others similarly situated, v. Papa, Inc., et al., Case No. 3:21-cv-06326-RS (N.D. Cal.), the Parties agree and stipulate that it would best serve the interests of efficiency, conservation of judicial resources, and fairness, to set a class certification deadline in this matter for approximately 15 months after the date of this stipulation, or April 6, 2023. A copy of the Parties' motion dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/33pO5X1 at no extra charge.[CC] The Plaintiff is represented by: Jonathan M. Lebe, Esq. Zachary Gershman, Esq. LEBE LAW, APLC Jon@lebelaw.com Zachary@lebelaw.com 777 S. Alameda Street, Second Floor Los Angeles, CA 90021 Telephone: (213) 358-7046 The Defendant is represented by: Donald P. Sullivan, Esq. Kathleen B. Roney, Esq. JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, CA 94111-4615 Telephone: (415) 394-9400 Facsimile: (415) 394-9401 E-mail: Donald.Sullivan@jacksonlewis.com Kathleen.Roney@jacksonlewis.com PAR-A-DICE HOTEL: Joint Bid to Extend Response Deadlines Filed -------------------------------------------------------------- In the class action lawsuit captioned as ANTHONY SCOTT PRUITT, AUDREY PRUITT, and all other similarly situated individuals, v. PAR-A-DICE HOTEL CASINO, BOYD GAMING CORPORATION, and any and all other affiliated or subsidiary entities, Pruitt et al v. Par-A-Dice Gaming Corporation, et al., Case No. 1:20-cv-01084-JES-JEH (C.D. Ill.), the Parties' ask the Court to enter an order extending the deadline for Plaintiffs' reply in support of their motion to certify class and Defendants' reply in support of their Motion for Summary Judgment from January 31, 2022 until February 1, 2022. Par-A-Dice is a casino located on the Illinois River off Illinois Route 116/U.S. Route 150 in East Peoria, Illinois. A copy of the Parties' motion dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3nzwUZV at no extra charge.[CC] The Attorneys for Plaintiffs Anthony and Audrey Pruitt, are: Catherine T. Mitchell, Esq. Ryan F. Stephan, Esq. James B. Zouras, Esq. Catherine T. Mitchell, Esq. STEPHAN ZOURAS, LLP 100 N. Riverside Plaza, Suite 2150 Chicago, IL 60606 Telephone: (312) 233-1550 Facsimile: (312) 233-1560 E-mail: rstephan@stephanzouras.com jzouras@stephanzouras.com cmitchell@stephanzouras.com -and - Steven Smith, Esq. STEVEN SMITH LAW GROUP 5555 N Sheridan Road, Suite 708 Chicago, IL 60640 Telephone: (312) 622-5545 E-mail: Stevesmithlaw88@gmail.com The Defendants are represented by: Matthew D. Provance, Esq. J. Gregory Deis, Esq. Nathan A. Rice, Esq. MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606-4637 Telephone: (312) 782-0600 Facsimile: (312) 782-7711 E-mail: mprovance@mayerbrown.com gdeis@mayerbrown.com nrice@mayerbrown.edu PORSCHE CARS: Xu, Vaz-Pocas Seek to Certify Rule 23 Classes ----------------------------------------------------------- In the class action lawsuit captioned as MICHAEL XU and DANIEL VAZ-POCAS, individually and on behalf of all others similarly situated, v. PORSCHE CARS NORTH AMERICA, INC., a Delaware corporation, Case No. 1:20-cv-00510-AT (N.D. Ga.), the Plaintiffs ask the Court to enter an order certifying the following classes pursuant to Federal Rules of Civil Procedures 23(a) and (b)(3) and appointing Plaintiffs as the respective class representatives. The Plaintiff Xu seeks certification of the following classes: 1. A multistate consumer protection class defined as: All people who purchased or leased a Class Vehicle in California, Colorado, Hawaii, Illinois, Massachusetts, Maryland, Michigan, Missouri, New York, and Washington. 2. A multistate implied warranty class defined as: All people who purchased or leased a Class Vehicle in Alaska, Arkansas, California, Colorado, Georgia, Illinois, Louisiana, Massachusetts, Michigan, and South Carolina. 3. A multistate unjust enrichment class defined as: All people who purchased or leased a Class Vehicle in California, Georgia, Illinois, Massachusetts, Michigan, New York, Texas, and Washington. The Plaintiff Vaz-Pocas also seeks certification of a New Jersey implied warranty class defined as: 4. All people who purchased or leased a Class Vehicle in New Jersey. Excluded from all Classes are: (a) Porsche, its officers, directors and employees; its affiliates and affiliates' officers, directors and employees, its distributors and distributors' officers, directors and employees, and Porsche dealers and Porsche dealers' officers and directors; (b) Plaintiffs' counsel; (c) judicial officers and their immediate family members and associated court staff assigned to this case; (d) people who timely and properly exclude themselves from the Class; and (e) people whose cooling system defect repairs were covered by Porsche under warranty. Pursuant to Rule 23(g), the Plaintiffs also seek an order appointing Timothy G. Blood of the law firm Blood Hurst & O'Reardon, LLP and David J. Worley of the law firm Evangelista Worley LLC as class counsel. Porsche Cars North America, Inc. is headquartered in the United States. The company's line of business includes the retail sale of new and used automobiles. A copy of the Plaintiffs' motion to certify classes dated Jan. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3Kj2q8u at no extra charge.[CC] The Plaintiffs are represented by: Timothy G. Blood, Esq. Paula R. Brown, Esq. BLOOD HURST & O'REARDON, LLP 501 West Broadway, Suite 1490 San Diego, CA 92101 Telephone: (619) 338-1100 Facsimile: (619) 338-1101 E-mail: tblood@bholaw.com pbrown@bholaw.com - and - David J. Worley, Esq. Kristi McGregor, Esq. James Evangelista, Esq. EVANGELISTA WORLEY LLC 500 Sugar Mill Road, Suite 245A Atlanta, GA 30350 Telephone: (404) 205-8400 E-mail: david@ewlawllc.com kristi@ewlawllc.com jim@ewlawllc.com - and - Ray P. Boucher, Esq. Maria L. Weitz, Esq. BOUCHER LLP 26100 Oxnard Street, Suite 600 Woodland Hills, CA 91367 Telephone: (818) 340-5400 Facsimile: (818) 340-5401 E-mail: ray@boucher.la weitz@boucher.la The Defendant is represented by: Christopher G. Campbell, Esq. Brendan G. Krasinski, Esq. Matthew A. Goldberg, Esq. DLA PIPER LLP (US) One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309-3450 E-mail: christopher.campbell@dlapiper.com brendan.krasinski@dlapiper.com matthew.goldberg@dlapiper.com - and - Anika Brunson, Esq. LEE HONG DEGERMAN KANG & WAINEY 3501 Jamboree Road, Suite 6000 Newport Beach, CA 92660 Telephone: (949) 250-9954 Facsimile: (949) 250-9957 E-mail: anika.brunson@lhlaw.com PREFERRED CAREGIVERS: Filing for Class Cert. Bid Due April 14 ------------------------------------------------------------- In the class action lawsuit captioned as ANTHONY BADON, on behalf of himself and all others similarly situated, v. PREFERRED CAREGIVERS AND SITTERS, LLC D/B/A "PREFERRED CAREGIVERS & SITTERS, LLC"; BARRY WRIGHT AND MILLICENT WRIGHT, Case No. 2:20-cv-01065-MVL-MBN (E.D. La.), the Hon. Judge Mary Ann Vial Lemmon entered an order granting the Parties Motion and the deadline for filing for certification of the Fair Labor Standards Act (FLSA) Collective Action class, associated deadlines and evidentiary hearing are hereby reset as follows: -- Witness and Exhibit List Deadline: March 30, 2022 -- Deadline to File Supplemental April 14, 2022 Motion for Class Certification: -- Evidentiary Hearing on Class April 29, 2022 Certification: Preferred Caregivers & Sitters, LLC is a home health agency serving New Orleans, Louisiana and the surrounding area. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3I9WQTN at no extra charge.[CC] PROGESSIVE NORTHERN: Wins Summary Judgment Bid v. Rachel Curtis ---------------------------------------------------------------- In the class action lawsuit captioned as RACHEL CURTIS v. PROGESSIVE NORTHERN INSURANCE COMPANY, Case No. 5:17-cv-01076-PRW (W.D. Okla.), the Hon. Judge Patrick Y. Wyrick entered an order granting in full Progressive's Motion for Summary Judgment. The Court said, "Since the statutes Ms. Curtis invokes are inapplicable to resolution of this case, Progressive has carried its burden and demonstrated there is no genuine dispute of material fact and it is entitled to summary judgment on all claims as a matter of law. Ms. Curtis has failed her rebuttal burden and has not pointed to materials in the record sufficient to resurrect a genuine dispute or prove a question of fact that need be submitted to a jury. At best, Ms. Curtis has metaphysical doubts about Progressive’s methods and offers nothing more than a plausible scenario why she should have been paid more." In 2017, Rachel Curtis was involved in two separate accidents that resulted in total loss of her two vehicles. She sued, alleging her insurer’s vehicle valuation methodology systemically underpays settlement claims and both breached the contract and violated Oklahoma insurance law. Progressive Northern Insurance Company operates as an insurance company. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/33JrYuB at no extra charge.[CC] ROBINHOOD: Class Cert. Hearing on Outage Case Continued to Feb. 24 ------------------------------------------------------------------- In the class action lawsuit re Robinhood Outage Litigation, Case No. 3:20-cv-01626 (N.D. Cal.), the Hon. Judge James Donato entered an order continuing hearing on the class certification motion to February 24, 2022, at 10:00 a.m. in Courtroom 11. This is a lawsuit alleging Robinhood customers lost money due to outages of the company's trading service in March 2020. Robinhood is an American financial services company headquartered in Menlo Park, California, known for pioneering commission-free trades of stocks, exchange-traded funds and cryptocurrencies via a mobile app introduced in March 2015. The nature of suit states Diversity-Other Contract.[CC] ROMEO'S PIZZA: Branning Seeks to Strike Objection to Cert. Notice ----------------------------------------------------------------- In the class action lawsuit captioned as Matthew Branning, et. Al, On behalf of himself and those similarly situated, v. Romeo's Pizza, Inc., et al., Case No. 1:19-cv-02092-SO (N.D. Ohio), the Plaintiff asks the Court to enter an order striking the Defendants' objection to Plaintiff's notice concerning conditional certification. Specifically, the Plaintiff files his Combined Motion for Rule 23 Class Certification and FLSA Conditional Certification on May 11, 2021. The Defendants responded in opposition to that motion on October 28, 2021. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3txo16R at no extra charge.[CC] The Plaintiff is represented by: Andrew R. Biller, Esq. Andrew P. Kimble, Esq. Philip J. Krzeski, Esq. BILLER & KIMBLE, LLC www.billerkimble.com 8044 Montgomery Road, Suite 515 Cincinnati, OH 45236 Telephone: (513) 202-0710 Facsimile: (614) 340-4620 E-mail: abiller@billerkimble.com akimble@billerkimble.com pkrzeski@billerkimble.com ROYAL CREDIT: Court Certifies Settlement Class in Schindler Suit ---------------------------------------------------------------- In the class action lawsuit captioned as June Schindler v. Royal Credit Union, Case No. 3:20-cv-00007-jdp (W.D. Wisc.), the Hon. Judge James D. Peterson entered an order: 1. finally certifying plaintiff's class, pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure as follows: The 9, 911 persons (in addition to June Schindler) included in one or more soft-pull portfolio reviews conducted by RCU ji-om December 1, 2017, to the present, who at the time of the pull were not members of RCU, and who, according to RCU's account records, were also not subject to any current collection claims by RCU for any reason (i.e., because that person had no charged off accounts, or had one or more charged off accounts that were subject to a bankruptcy filing and/or beyond the applicable statute of limitations). 2. finally certifying Plaintiff June Schindler as the Class Representative, and Thomas J. Lyons, Jr. as Class Counsel; and 3. approving class action notices were mailed to the Class Members. The form and method for notifying the Class Members of the settlement and its terms and conditions was in conformity with this Coutt's Preliminary Approval Order and satisfied the requirements of Rule 23( c)(2)(B) of the Federal Rules of Civil Procedure and due process and constituted the best notice practicable under the circumstances. Settlement Terms -- The Plaintiff is awarded $5,000 as service as the class representative. -- The Class is awarded $335,000 less ultimate class administration costs to be distributed among the class members as set forth in the Agreement. -- Class Counsel is hereby awarded $150,000 in attorneys' fees and costs. -- Class Representative is hereby awarded $5,000 for her service to the Class. Royal Credit Union operates as a financial cooperative. The Union provides financial solutions such as saving and checking accounts, loans and investment. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3rlQSsh at no extra charge.[CC] RUSHMORE LOAN: Joint Bid to Amend Sched Order in Panzarella OK'd ----------------------------------------------------------------- In the class action lawsuit captioned as ELIZABETH PANZARELLA, v. RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Case No. 2:20-cv-04467-PD (E.D. Pa.), the Hon. Judge Paul S. Diamond entered an order granting the Parties' joint motion to amend scheduling order. -- The Defendant's Expert Report on Class Certification and Opposition to Class Certification shall be filed no later than 5 p.m. on February 18, 2022. -- The Plaintiff's Rebuttal Expert Report and Reply in Support of Class Certification shall be filed no later than 5 p.m. on March 17, 2022. Rushmore provides financial services. The Company offers performing and non-performing residential mortgage loans. A copy of the Court's order dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3GuWarV at no extra charge.[CC] RUTTER'S INC: Filing of Class Status Bid Due March 15 ----------------------------------------------------- In the class action lawsuit re Rutter's Inc. Data Security Breach Litigation, Case No. 1:20-cv-00382-CCC-KM (M.D. Pa.), the Plaintiff asks the Court to enter an order granting his instant unopposed motion requesting an enlargement of time for his motion for class certification and to adjust the responsive briefing schedule accordingly. The Parties have met-and-conferred and agree to extending the deadline for Plaintiff to file his motion for class certification by one (1) month -- until March 15, 2022, with all associated class certification deadlines being pushed back respectively. The revised briefing schedule Plaintiff proposes, and the Defendant concurs with, would require: a. Plaintiff to file his motion for March 15, 2022 class certification and class certification expert report(s) by: b. Depositions of Plaintiff's class April 15, 2022 certification expert(s) to be completed by: c. The Defendant to file its brief May 25, 2022 in opposition to Plaintiff's motion for class certification and its class certification expert report(s) on or before: d. Depositions of Defendant's class June 16, 2022 certification expert(s) to be completed by: e. Plaintiff to file a reply July 16, 2022 brief in support of the motion for class certification and any rebuttal expert report(s) by: On October 13, 2021, after considering Plaintiff's Unopposed Motion for an Enlargement of Time to File Plaintiff's Motion for Class Certification, the Court issued an order setting forth the briefing schedule for Plaintiff's motion for class certification. The briefing schedule ordered: a. Plaintiff to file his motion for February 15, 2022 class certification and class certification expert report(s) by: b. Depositions of Plaintiff's class March 15, 2022 certification expert(s) to be completed by: c. The Defendant to file its brief April 25, 2022 in opposition to Plaintiff's motion for class certification and its class certification expert report(s) on or before: d. Depositions of Defendant's May 16, 2022 class certification expert(s) to be completed by: e. Plaintiff to file a reply brief June 16, 2022 in support of the motion for class certification and any rebuttal expert report(s) by: Rutter's operates a chain of convenience stores and gas stations. A copy of the Plaintiff's motion to certify class dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3KcfrAm at no extra charge.[CC] The Plaintiff is represented by: Benjamin F. Johns, Esq. Samantha E. Holbrook, Esq. Alex M. Kashurba, Esq. CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH LLP One Haverford Centre 361 Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Facsimile: (610) 649-3633 E-mail: bfj@chimicles.com seh@chimicles.com amk@chimicles.com - and - Christian Levis, Esq. Amanda Fiorilla, Esq. Anthony M. Christina LOWEY DANNENBERG, P.C. 44 South Broadway, Suite 1100 White Plains, NY 10601 Telephone: (914) 997-0500 SAINT THOMAS UNIVERSITY: Court Dismisses Emrit Class Suit --------------------------------------------------------- In the class action lawsuit captioned as RONALD SATISH EMRIT, v. SAINT THOMAS UNIVERSITY SCHOOL OF LAW, Case No. 1:21-cv-23175-BB (S.D. Fla.), the Hon. Judge Beth Bloom entered an order: 1. dismissing the complaint; 2. denying the Plaintiff's Motion; 3. drecting the Clerk to close the case; and 4. to the extent not otherwise disposed of, denying as moot any pending motions and terminating all pending deadlines. The Court said, "there are several deficiencies with Plaintiff's Complaint warranting dismissal. As an initial matter, the Complaint fails to set forth Plaintiff's claims in accordance with federal pleading standards. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain a "short and plain statement of the claim" that shows that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The failure to identify claims with sufficient clarity to enable the defendant to frame a responsive pleading constitutes a "shotgun pleading" that violates Rule 8(a)(2)." On September 1, 2021, the Plaintiff initiated the instant action against Defendant Saint Thomas University School of Law. The Complaint asserts a single count for "wrongful institution of legal proceedings/malicious prosecution" against Defendant, and perhaps the Federal Bureau of Investigations (FBI). St. Thomas University School of Law is one of the graduate schools of St. Thomas University located in Miami Gardens, Florida. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3Kb810t at no extra charge.[CC] SEALAND CONTRACTORS: Time to Complete Discovery Extended -------------------------------------------------------- In the class action lawsuit captioned as COREY INFANTINO, on behalf of himself and all others similarly situated, v. SEALAND CONTRACTORS CORP. And DANIEL J. BREE, Case No. 6:20-cv-06782-EAW-MWP (W.D.N.Y.), the Hon. Judge Marian W. Payson entered order granting the plaintiff's motion for an extension of time to complete discovery. The Court further entered that the Court's November 18, 2021 Order & Amended Scheduling Order shall be amended as follows: 1. All factual discovery in this case, including depositions, shall be completed on or before April 22, 2022. All motions to compel discovery shall be filed at least 30 days prior to the factual discovery cutoff. 2. The parties shall identify any expert witnesses pursuant to Fed. R. Civ. P. 26(a)(2)(A) and provide reports pursuant to Rule 26(a)(2)(B) and/or disclosures pursuant to Rule 26(a)(2)(C) within 90 days after the Court issues a decision on any dispositive motions. 3. Parties shall complete all discovery relating to experts, including depositions, within 60 days after service of any expert disclosure. 4. Any motions for class certification shall be filed by no later than May 31, Dispositive motions, if any, shall be filed no later than May 31, 2022. Sealand is a heavy highway and bridge contractor. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3FCNKx8 at no extra charge.[CC] SEATTLE, WA: Grae-El Must File Class Status Bid by June 14 ---------------------------------------------------------- In the class action lawsuit captioned as Zion T. Grae-El, et al., v. City of Seattle, et al., Case No. 2:21-cv-01678-JLR (W.D. Wash.), the Hon. Judge James T. Robart entered a Rule 16(B) and Rule 23(D)(2) scheduling order regarding class certification motion: -- Deadline to complete discovery on May 13, 2022 class certification: -- Deadline for Plaintiffs to file June 14, 2022 motion for class certification: The Court will set further case schedule deadlines pursuant to Fed. Rule of Civil Proc. 16(b) after ruling on the motiom for class certification. A copy of the Court's order dated Jan. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3nQKWGX at no extra charge.[CC] SPEEDWAY LLC: Howe Seeks to Certify Rule 23 Class -------------------------------------------------- In the class action lawsuit captioned as CHRISTOPHER HOWE, individually, and on behalf of all others similarly situated, v. SPEEDWAY LLC, Case No. 1:19-cv-01374 (N.D. Ill.), the Plaintiff asks the Court to enter an order: 1. certifying his claims as a class action; 2. appointing him as Class Representative; and 3. appointing Stephan Zouras, LLP and Edelson PC as Class Counsel. Speedway is an American convenience store and gas station chain headquartered in Enon, Ohio, with locations primarily in the Midwest and the East Coast regions of the United States wholly owned and operated by 7-Eleven. A copy of the Plaintiff's motion dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3ri0Iv2 at no extra charge.[CC] The Plaintiff is represented by: Andrew C. Ficzko, Esq. Ryan F. Stephan, Esq. James B. Zouras, Esq. STEPHAN ZOURAS, LLP 100 N. Riverside Plaza, Suite 2150 Chicago, IL 60606 Telephone: (312) 233-1550 E-mail: rstephan@stephanzouras.com jzouras@stephanzouras.com aficzko@stephanzouras.com - and - J. Eli Wade-Scott, Esq. Alexander G. Tievsky, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589-6370 E-mail: ewadescott@edelson.com atievsky@edelson.com ST. LOUIS, MO: Cody, et al., Seek to Certify Narrowed Classes ------------------------------------------------------------- In the class action lawsuit captioned as JAMES CODY, et al., individually and on behalf of all other similarly situated individuals, v. CITY OF ST. LOUIS, Case No. 4:17-cv-02707-AGF (E.D. Mo.), the Plaintiffs renew their motion for class certification and move the Court for an order certifying their Rule 23 (b)(3) narrowed proposed classes of pretrial detainees and post-conviction inmates, as well as their narrowed heat subclass for pretrial detainees and post-conviction inmates held at the City of St. Louis Medium Security Institution. This Motion is made pursuant to Federal Rule of Civil Procedure 23 (c)(1)(C). In order to alleviate the Court's Rules 23(a) and (b)(3) concerns expressed in its Order denying Plaintiffs initial motion for class certification, the Plaintiffs propose narrowed class definitions, which focus the claims to a more discrete time period and limit the class claims to the physical conditions, the suit says. A copy of the Plaintiffs' motion to certify class dated Jan. 10, 2021 is available from PacerMonitor.com at https://bit.ly/33nyOWKat no extra charge.[CC] The Plaintiffs are represented by: Nathaniel R. Carroll, Esq. Blake A. Strode, Esq. Jacki J. Langum, Esq. John M. Waldron, Esq. Maureen G. V. Hanlon, Esq. Brandon L. Jackson, Esq. ARCHCITY DEFENDERS, INC. 440 N. 4thStreet, Suite 390 Saint Louis, MO 63102 Telephone: (855) 724-2489 Facsimile: (314) 925-1307 E-mail: bstrode@archcitydefenders.org jlangum@archcitydefenders.org jwaldron@archcitydefenders.org ncarroll@archcitydefenders.org mhanlon@archcitydefenders.org bjackson@archcitydefenders.org - and - Gail Rodgers, Esq. Dennis Kiker, Esq. Saher Valiani, Esq. DLA PIPER LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 335-4500 Facsimile: (212) 335-4501 E-mail: gail.rodgers@dlapiper.com dennis.kiker@dlapiper.com saher.valiani@dlapiper.com STEWARD HEALTH: Joint Bid for Entry of Class Certification Filed ---------------------------------------------------------------- In the class action lawsuit captioned as BEVERLY WILLIAMS AND AMY JOHNSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, v. STEWARD HEALTH CARE SYSTEM, LLC; AND MEDICAL REIMBURSEMENTS OF AMERICA, Case No. 5:20-cv-00123-RWS-CMC (E.D. Tex.), the Parties submit to the Court their proposed docket control order for purposes of class certification as follows: -- Deadline for Plaintiffs to file April 28, 2022 Motion for Class Certification and designate expert witnesses on which Plaintiffs rely in support of class certification: -- Deadline to complete depositions May 23, 2022 of Plaintiffs' class certification experts: -- Deadline for Defendants to file June 27, 2022 their opposition to Plaintiffs' Motion for Class Certification and designate expert witnesses on which Defendants rely in opposing class certification: -- Deadline to complete depositions July 18, 2022 of Defendants' class certification experts: -- Deadline for Plaintiff to file August 11, 2022 reply in support of Motion for Class Certification: -- Deadline for Defendants to file September 9, 2022 surreply in opposition to Plaintiffs' Motion for Class Certification: On August 3, 2021, the Court entered an order requiring the Parties to obtain potential dates for a class certification hearing and to submit a proposed schedule for class certification briefing within seven days of the entry of a report and recommendation on Defendants' motions to dismiss or a ruling on Defendants' motion for protective order. On December 16, 2021, the Court entered its Report and Recommendation of the United States Magistrate Judge ("Report and Recommendation") and its Order Denying Defendants' Motions for Protective Order. On December 27, 2022, the Court extended the deadline for the proposed schedule until January 7, 2022. Steward Health is a physician-owned private for-profit health care network. A copy of the Plaintiffs' motion to certify class dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/33d7DxX at no extra charge.[CC] The Plaintiffs are represented by: James C. Wyly, Esq. Sean F. Rommel, Esq. WYLY-ROMMEL, PLLC 4004 Texas Boulevard Texarkana, TX 75503 Telephone: (903) 334-8646 Facsimile: (903) 334-8645 E-mail: jwyly@wylyrommel.com srommel@wylyrommel.com - and - F. Jerome Tapley, Esq. Ryan Lutz, Esq. Brett Thompson, Esq. CORY WATSON, P.C. 2131 Magnolia Avenue South Birmingham, AL 35205 Telephone: (205) 328-2200 Facsimile: (205) 324-7896 E-mail: jtapley@corywatson.com rlutz@corywatson.com bthompson@corywatson.com The Attorneys for Defendant Steward Health Care System, LLC, are: Kelly Tidwell, Esq. Geoffrey Culbertson PATTON, TIDWELL & CULBERTSON, LLP 2800 Texas Boulevard Texarkana, TX 75503 Telephone: (903) 792-7080 Facsimile: (903) 792-8233 E-mail: kbt@texarkanalaw.com gpc@texarkanalaw.com - and - Thomas G. Yoxall, Esq. Matthew H. Davis LOCKE LORD LLP 2200 Ross Avenue, Suite 2800 Dallas, TX 75201-6776 Telephone: (214) 740-8000 Facsimile: (214) 740-8800 E-mail: tyoxall@lockelord.com mdavis@lockelord.com The Attorneys for Defendant Medical Reimbursement of America, are: Jonathan C. LaMendola, Esq. COBB MARTINEZ WOODWARD PLLC 1700 Pacific Avenue, Suite 3100 Dallas, TX 75201 Telephone: (214) 220-5204 Facsimile: (214) 220-5254 E-mail: jlamendola@cobbmartinez.com - and - R. Thaddeus behrens, Esq. SHEARMAN & STERLING LLP 2828 North Harwood Street, Suite 1800 Dallas, TX 75201 Telephone: (214) 271-5766 thad.behrens@shearman.com SUNTECH DEVELOPMENT: Carvajal FLSA Suit Removed to S.D. Florida --------------------------------------------------------------- The case styled EVERET CARVAJAL, individually and on behalf of all others similarly situated v. SUNTECH DEVELOPMENT, INC. and LUIS LEON, Case No. 2021-023945-CA-01, was removed from the Circuit Court for the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, to the U.S. District Court for the Southern District of Florida on January 18, 2022. The Clerk of Court for the Southern District of Florida assigned Case No. 1:22-cv-20222 to the proceeding. The case arises from the Defendants' alleged failure to compensate the Plaintiff and similarly situated workers overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. Suntech Development, Inc. is a roofing contractor in Florida. [BN] The Defendant is represented by: Maria A. Dominguez, Esq. DMRA LAW, LLC Sabadell Financial Center 1111 Brickell Avenue, Suite 1550 Miami, FL 33131 Telephone: (305) 548-8666 E-mail: maria.dominguez@dmralaw.com SYGMA NETWORK: Mudrich Seeks to Certify FLSA Collective Action -------------------------------------------------------------- In the class action lawsuit captioned as TYLER MUDRICH, on behalf of himself and others similarly situated, v. THE SYGMA NETWORK, INC., Case No. 2:21-cv-04932-EAS-CMV (S.D. Ohio), the Plaintiff asks the Court to enter an order pursuant to Section 216(b) of the Fair Labor Standards Act ("FLSA"): 1. Conditionally certifying this case as an FLSA collective action under Section 216(b) against The SYGMA Network, Inc. on behalf of Named Plaintiff and others similarly situated; 2. Implementing a procedure whereby Court-approved Notice of FLSA claims is sent by U.S. mail and email to: "All current and former hourly, non-exempt warehouse employees of the Defendant whose payroll records reflect that they worked 40 or more hours in any workweek during the three years preceding the filing of this Motion and continuing through the final disposition of this case ("FLSA Collective" or "FLSA Collective Members"); 3. Approving the proposed Notice and Consent forms; 4. Directing the Defendant to provide, within 14 days of an order granting conditional certification, a roster of all persons who fit the definition that includes their full names, their dates of employment, their locations worked, job titles, their last known mailing addresses, and their personal email addresses; and 5. Directing that the Court-approved Notice and Consent to Join forms be sent to such present and former employees within 14 days of receipt of the Roster using the Potential Opt-In Plaintiffs' mail and email addresses. The SYGMA Network is a leading food service supplier that specializes in serving large, national restaurant chains, including Wendy's. A copy of the Plaintiff's motion to certify class dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3FyF2A6 at no extra charge.[CC] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. Kelsie N. Hendren, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com agedling@mcoffmanlegal.com khendren@mcoffmanlegal.com TALIS BIOMEDICAL: Kessler Topaz Reminds of March 8 Deadline ----------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP informs investors that a securities class action lawsuit has been filed against Talis Biomedical Corporation ("Talis") (NASDAQ: TLIS). The action charges Talis with violations of the federal securities laws, including omissions and fraudulent misrepresentations relating to the company's business, operations, and prospects. As a result of Talis' materially misleading statements to the public, Talis investors have suffered significant losses. LEAD PLAINTIFF DEADLINE: March 8, 2022 CLASS PERIOD: February 12, 2021 through January 7, 2022 CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS: James Maro, Esq. (484) 270-1453 or Toll Free (844) 887-9500 or Email at info@ktmc.com TALIS' ALLEGED MISCONDUCT Talis develops diagnostic tests to enable accurate, reliable, low cost, and rapid molecular testing for infectious diseases. Specifically, the Talis One tests are being developed for respiratory infections, infections related to women's health, and sexually transmitted infections. In its Registration Statement, Talis disclosed that in January 2021, the company submitted a request for an Emergency Use Authorization ("EUA") to the U.S. Food and Drug Administration ("FDA") for its Talis One platform to perform COVID-19 testing. Then, on March 8, 2021, Talis announced that it had withdrawn its EUA application for the Talis One COVID-19 test. In a press release, Talis revealed that "[i]n late February, the FDA informed the company that it cannot ensure the comparator assay used in the primary study has sufficient sensitivity to support Talis's EUA application." Following this news, Talis' stock price fell $1.80, or 12%, to close at $12.85 per share on March 8, 2021. On August 10, 2021, Talis revealed that its "development timelines have been extended by delays in the launching of [Talis'] COVID-19 test and manufacturing scale." On this news, Talis' stock price fell $0.58 per share, or 6%, to close at $8.39 per share on August 11, 2021. Then, on August 30, 2021, Talis announced the resignation of its Chief Executive Officer ("CEO"), Brian Coe. On this news, Talis' stock price fell $1.00 per share, or 11%, to close at $8.06 per share on August 31, 2021. Finally, on December 8, 2021, Talis announced that Brian Blaser, who had been appointed CEO on November 15, 2021, had stepped down from his position at Talis after only a week. On this new, Talis' stock price fell $0.55 per share, or 11.39%, to close at $4.28 per share on December 8, 2021. WHAT CAN I DO? Talis investors may, no later than March 8, 2022, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose to do nothing and remain an absent class member. Kessler Topaz Meltzer & Check, LLP encourages Talis investors who have suffered significant losses to contact the firm directly to acquire more information. WHO CAN BE A LEAD PLAINTIFF? A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. The lead plaintiff is usually the investor or small group of investors who have the largest financial interest and who are also adequate and typical of the proposed class of investors. The lead plaintiff selects counsel to represent the lead plaintiff and the class and these attorneys, if approved by the court, are lead or class counsel. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP Kessler Topaz Meltzer & Check, LLP prosecutes class actions in state and federal courts throughout the country and around the world. The firm has developed a global reputation for excellence and has recovered billions of dollars for victims of fraud and other corporate misconduct. All of our work is driven by a common goal: to protect investors, consumers, employees and others from fraud, abuse, misconduct and negligence by businesses and fiduciaries. At the end of the day, we have succeeded if the bad guys pay up, and if you recover your assets. The complaint in this action was not filed by Kessler Topaz Meltzer & Check, LLP. For more information about Kessler Topaz Meltzer & Check, LLP please visit www.ktmc.com. Contacts Kessler Topaz Meltzer & Check, LLP James Maro, Jr., Esq. 280 King of Prussia Road Radnor, PA 19087 (844) 887-9500 (toll free) info@ktmc.com [GN] THATFORD LODGING: Underpays Housekeepers, Hernandez Suit Alleges ---------------------------------------------------------------- MARIA HERNANDEZ, individually and on behalf of all others similarly situated, Plaintiff v. THATFORD LODGING, LLC, d/b/a SURFACE INN, OSBORN OPERATING HOSPITALITY CORP., d/b/a QUALITY INN, KULWANT DEOL, AMAR THIND, and J.K. SANDHU, Defendants, Case No. 1:22-cv-00283 (E.D.N.Y., January 18, 2022) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay overtime wages, failure to pay spread-of-hours premium, failure to provide proper wage-and-hour notice, and failure to provide proper wage statements. Ms. Hernandez was hired as a housekeeper at the Defendants' Surface Inn Hotel located at 120 Osborn Street, Brooklyn, New York from June 2020 until August 21, 2021. Thatford Lodging, LLC, doing business as Surface Inn, is a hotel owner and operator, 120 Osborn Street, Brooklyn, New York. Osborn Operating Hospitality Corp., doing business as Quality Inn, is a hotel owner and operator, 120 Osborn Street, Brooklyn, New York. [BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 TOSHIBA CORP: Stoyas Loses Bid for Class Certification ------------------------------------------------------- In the class action lawsuit captioned as MARK STOYAS, NEW ENGLAND TEAMSTERS & TRUCKING INDUSTRY PENSION FUND, and AUTOMOTIVE INDUSTRIES PENSION TRUST FUND, individually and on behalf of all others similarly situated, a Japanese Corporation, v. TOSHIBA CORPORATION, a Japanese Corporation, Case No. 2:15-cv-04194-DDP-JC (C.D. Cal.), the Hon. Judge Dean D. Pregerson entered an order denying plaintiffs' motion for class certification of: "All persons who purchased securities listed under the ticker symbols TOSYY or TOSBF [between May 8, 2012 and November 12, 2015] using the facilities of the OTC Market (American Securities Purchasers)"; - and - "All citizens and residents of the United States who purchased shares of Toshiba 6502 common stock [between May 8, 2012 and November 12, 2015] (6502 Purchasers)." The Defendant argues that AIPTF has not satisfied the typicality requirement under Rule 23(a). To satisfy the typicality requirement, "the claims or defenses of the representative parties" must be "typical of the claims or defenses of the class." The Defendant also argues that the Plaintiffs cannot satisfy the typicality requirement with 18 respect to the American Securities Purchasers' Exchange Act claims, because, unlike the members of the proposed class, AIPTF did not acquire "Toshiba securities" in the United States. The Plaintiffs argue that AIPTF incurred irrevocable liability in the United States, and thus acquired the ADRs in a domestic transaction, "when Barclays executed its ADR order. On June 4, 2016, the Plaintiffs filed a putative securities class action against Defendant, alleging violations of the U.S. Securities Exchange Act of 1934 (Exchange Act) and the Financial Instruments & Exchange Act of Japan (JFIEA) in connection with allegations of accounting fraud and misrepresentations. The Plaintiffs allege that on March 23, 2015, AIPTF purchased 36,000 shares of unsponsored Toshiba American Depositary Receipts (ADRs) "through transactions on the OTC Market in the United States thereby acquiring an ownership interest in 216,000 shares of common stock issued and authorized for sale by Toshiba." The Plaintiffs Automotive Industries Pension Trust Fund (AIPTF) and New England Teamsters & Trucking Industry Pension Fund (NETTPF) are pension funds formed for the benefit of auto industry and trucking workers. Toshiba is a "worldwide enterprise that engages in the research development, manufacture, construction, and sale of a wide variety of electronic and energy products and services," headquartered in Tokyo, Japan. A copy of the Court's order dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3tt2nAF at no extra charge.[CC] U.S. BANCORP: Morris Hits Illegal Fees for Mortgage Payments ------------------------------------------------------------ VALENCIA MORRIS, individually and on behalf of all others similarly situated, Plaintiff v. U.S. Bancorp, et al., Defendant, Case No. 4:22-cv-00142 (S.D. Tex., Jan. 13, 2022) alleges that Defendant routinely and systematically breaches uniform covenants in standard deeds of trust and violates the Texas Debt Collection Practices Act by assessing fees to borrowers, including Plaintiff, that are either not authorized by or expressly prohibited by their mortgage agreements. Ms. Morris has a mortgage that is serviced by the Defendant. She asserts that she has incurred multiple fees ranging from $3.50 to $8.00 per transaction for making her mortgage payments online or over the phone. The Plaintiff, on behalf of herself and all similarly situated Texas borrowers, seeks injunctive relief and damages against the Defendant for its alleged violations of the TDCPA and breaches of contract. U.S. Bancorp operates as a bank holding company.[BN] The Plaintiff is represented by: Sonya Butts, Esq. 340 N Sam Houston Parkway E, Suite A110X Houston, TX 77060 Telephone: (346) 202-4390 Facsimile: (832) 200-1559 E-mail: sbutts@advocateattorneys.com - and - John Habashy, Esq. LEXICON LAW 633 W. 5th St, 28th Floor Los Angeles, CA 90071 - and - Marc Bradley, Esq. BRADLEY GROMBACHER, LLP 31365 Oak Crest Dr., Suite 240 Westlake Village, CA 91361 ULTA SALON: Gonzalez Consumer Suit Goes to C.D. California ---------------------------------------------------------- The case styled ANGEL GONZALEZ, MINDY MIRANDA, SARYNA DE JESUS, TATIANA BERNAL, FLOR CRUZ, JULISSA PEREZ, ELISSA PADILLA, IAN LAMAR, CLAUDIA BENITEZ, BRITTNEY HUGHES, GEORGE MADDOX, VICTORIA HENKES, ALLEXANDRA TAN, DANIELLE QUAID, ELIZABETH FAABORG, VINCENT HALL, JERRICA LABIAN, LAUREN HALL, RYAN GUFFEY, KIERSTEN WONG, BRITTANI HERENA, JANET SANCHEZ, BRITTANY SOMMERS, CHEYENNE LOPEZ, TALIA CASTANEDA, NOHELY LLAMAS, RHONDA PRICKETT, DEBBIE HARRISON, individually and on behalf of all others similarly situated v. ULTA SALON, COSMETICS & FRAGRANCE, INC., dba ULTA BEAUTY, and DOES 1-50, inclusive, Case No. 21STCV42843, was removed from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California on January 18, 2022. The Clerk of Court for the Central District of California assigned Case No. 2:22-cv-00363 to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California Business and Professions Code including failure to provide meal periods, failure to provide rest periods, failure to pay overtime, failure to maintain accurate records, failure to pay all wages when due, failure to provide accurate itemized wage statements, failure to reimburse work expenses, failure to timely pay wages upon termination, and unfair business practices. Ulta Salon, Cosmetics & Fragrance, Inc., doing business as Ulta Beauty, is an operator of beauty stores, with its headquarters located in Bolingbrook, Illinois. [BN] The Defendant is represented by: Jon D. Meer, Esq. Leo Q. Li, Esq. Sofya Perelshteyn, Esq. Justin J. Jackson, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 E-mail: jmeer@seyfarth.com lli@seyfarth.com sperelshteyn@seyfarth.com jujackson@seyfarth.com UMT MARINE: Hernandez Sues Over Unpaid Overtime, Retaliation ------------------------------------------------------------ EULEXIS HERNANDEZ, and other similarly situated individuals, Plaintiff v. UMT MARINE, LLC, JUAN E. SALAZAR, and RODRIGO CARRERA, individually, Defendants, Case No. 0:22-cv-60108 (S.D. Fla., Jan. 13, 2022) seeks to recover from the Defendants unpaid overtime wages for every hour above 40 that Plaintiff and the class members worked, liquidated damages, retaliatory damages, and any other relief pursuant to the Fair Labor Standards Act. Mr. Hernandez was employed by the Defendants as a non-exempted, full-time, hourly welder and assembler, from approximately February 1, 2021, to October 19, 2021, or 37 weeks. UMT MARINE is a marine supply store and manufacturer of boarding equipment, yacht desk accessories, custom-made railings, gates and enclosures, railings, etc.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd. Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com UNILEVER UNITED: Goytia Sues Over Sale of Adulterated Body Sprays ----------------------------------------------------------------- KRISTINE GOYTIA, individually and on behalf of all others similarly situated, Plaintiff v. UNILEVER UNITED STATES, INC., Defendant, Case No. 2:22-cv-00289 (E.D.N.Y., January 18, 2022) is a class action against the Defendant for violation of New York General Business Law, breach of express warranty, breach of implied warranty of merchantability, fraudulent concealment, medical monitoring, and unjust enrichment. According to the complaint, the Defendant is engaged in false, deceptive and misleading advertising, labeling, and marketing of its body spray products under the Suave brand. The Defendants list both the active and inactive ingredients of the product but fail to disclose that the product contains benzene, a known human carcinogen. Had the Plaintiff and similarly situated consumers known the truth, they would not have purchased the products, says the suit. Unilever United States, Inc. is a consumer products manufacturer, with its principal place of business located in Englewood Cliffs, New Jersey. [BN] The Plaintiff is represented by: Jason P. Sultzer, Esq. Joseph Lipari, Esq. Daniel Markowitz, Esq. THE SULTZER LAW GROUP P.C. 270 Madison Avenue, Suite 1800 New York, NY 10016 Telephone: (845) 483-7100 Facsimile: (888) 749-7747 E-mail: sultzerj@thesultzerlawgroup.com liparij@thesultzerlawgroup.com markowitzd@thesultzerlawgroup.com - and – David C. Magagna Jr., Esq. Charles E. Schaffer, Esq. LEVIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 E-mail: dmagagna@lfsblaw.com cschaffer@lfsblaw.com UNITED STATES: Bid for Summary Judgment Partly Granted in Keller ---------------------------------------------------------------- In the class action lawsuit captioned as Keller v. United States of America, Case No. 2:19-cv-13191-DMD (E.D. La.), the Hon. Judge Dana M. Douglas entered an order granting in part and denying in part defendant's motion for summary judgment as follows: -- The motion regarding the exhaustion of claims related to incidents involving Berfect are denied. -- The motion regarding the exhaustion of claims related to incidents involved Eboni Lee are granted. -- The motion regarding the disparate treatment claims on the denial of leave time is denied. -- The motion regarding the hostile work environment claims is granted. On October 18, 2019, the Plaintiff Keller brought a civil action for damages under Title VII of the Civil Rights Act of 1964, as amended by 42 U.S.C. section 2000, et seq., and the Family Medical Leave Act of 1993, 29 U.S.C. section 2601, et seq., against Louis DeJoy, the Postmaster General of the United States Postal Service (USPS). The Plaintiff is a white female who is employed by the USPS as a letter carrier. She asserts Title VII employment-discrimination claims against the USPS for race-based disparate treatment and hostile work environment, among others. The Plaintiff works at the Chalmette Post Office (CPO), and alleges that she was the victim of reverse racial discrimination by her direct supervisor, Gordon Tunnell and the CPO Postmaster at the time, Denise Trepagnier, both of whom are black. The Plaintiff alleges that during their tenure, Tunnell and Trepagnier engaged in a pattern and practice of treating black employees more favorably than white employees with respect to attendance, leave, and enforcement of USPS policies. Additionally, Keller alleges that Tunnell and Trepagnier tolerated, condoned, and encouraged a variety of workplace behavior from black employees that amounted to prejudicial, disparate treatment of white employees by allowing black employees to harass, threaten, and assault white employees without fear of termination or serious discipline Furthermore, the Plaintiff alleges that black employees were permitted to engage in acts that white employees would be disciplined or terminated for, such as failing to deliver certified mail, failing to report leave time, verbally harassing or assaulting co-workers, stalking co-workers, bringing illegal drugs to USPS property, stealing mail, bearing false witness to workplace incidents, and committing other felonious crimes on USPS property. A copy of the Court's order dated Jan. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3Kbet7L at no extra charge.[CC] UNITED STATES: Bid to Dismiss Robert v. Dep't. of Defense Granted ----------------------------------------------------------------- In the case, DAN ROBERT, SSG, U.S. Army, HOLLIE MULVIHILL, SSgt, U.S. Marine Corps, and other similarly situated individuals, Plaintiffs, v. LLOYD AUSTIN, in his official capacity as Secretary of Defense, U.S. Department of Defense, XAVIER BACERRA, in his official capacity as Secretary of the U.S. Department of Health and Human Services, and JANET WOODCOCK, in her official capacity as Acting Commissioner of the U.S. Food and Drug Administration, Defendants, Civil Action No. 21-cv-02228-RM-STV (D. Colo.), Judge Raymond P. Moore of the U.S. District Court for the District of Colorado issued an order: a. denying the Plaintiffs' Motion for Preliminary Injunction; b. granting the Defendants' Motion to Dismiss; and c. denying the Motion for Leave to File Amicus Curiae, filed by Pritish Vora, "an individual concerned U.S. citizen" who is not an attorney. I. Background The Plaintiffs are members of the military who were stationed in North Carolina when they brought this action on behalf of themselves as well as all other similarly situated active-duty National Guard and Reserve service members who are subject to Department of Defense regulations and have been ordered by the Secretary of Defense, Defendant Austin, to take a Covid-19 vaccine. As "documented survivors of Covid-19," they assert that have acquired immunity that is "at least as effective" as that achieved via vaccination, and they seek temporary and permanent injunctive relief preventing their forced vaccination. In addition to asserting class action allegations, the Amended Complaint asserts claims for (1) violation of the Administrative Procedure Act, (2) violation of 10 U.S.C. Section 1107, (3) violation of 10 U.S.C. Section 1107a, (4) violation of 50 U.S.C. Section 1520, and (5) violation of the Fourteenth Amendment. Before the Court are the Plaintiffs' Motion for Preliminary Injunction and the Defendants' Motion to Dismiss, which they have combined with their Opposition to Plaintiffs' Motion with the Court's permission. The Plaintiffs filed a Reply in support of their Motion and, belatedly, a separate Response to the Motion to Dismiss. The Defendants then filed a Reply in support of their Motion. Also pending is a Motion for Leave, filed by Vora. II. Analysis As a threshold matter, Judge Moore finds there are two -- and only two -- Plaintiffs in the case. Although the Amended Complaint contains "class action allegations," the Court has not certified any class, and the Plaintiffs have not even filed a motion for class certification. The Plaintiffs' attempt to incorporate two additional non-parties via a footnote in their Reply is wholly inadequate. Thus, for present purposes, the only relevant allegations are those pertaining to Plaintiffs Robert and Mulvihill. Judge Moore next considers the issues of standing and ripeness, both in terms of whether the Plaintiffs have established a likelihood of success on the merits and whether the Defendants' Motion should be granted. To satisfy Article III's standing requirements, a plaintiff must show: (1) he has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. In evaluating ripeness, often characterized as standing on a timeline, "the central focus is on whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all." The Defendants assert that the Plaintiffs' claims are not yet ripe because Plaintiff Robert has requested an exemption from the vaccination requirement, which remains pending, and Plaintiff Mulvihill has sought and obtained a temporary medical exemption from the vaccination requirement. Moreover, they argue, were the exemptions to be denied or expire, the military has extensive administrative procedures that offer the Plaintiffs multiple opportunities to present their arguments to their respective branches and allow for those branches to respond. In response, the Plaintiffs contend that since the Defendants control the exemption process, "it cannot be that they get to control the federal court's jurisdiction based upon their timing of the exercise of their discretion." However, on the current record, Judge Moore finds there is no basis to assume that the Plaintiffs' exemptions will be denied or revoked. Under similar circumstances in Church v. Biden, 2021 WL 5179215, at *10 (D.D.C. Nov. 8, 2021), the court concluded that two active-duty Marines' claims of harm rested on theories of injury that were speculative and contingent on their pending appeals being denied -- an outcome that might never come to pass. In finding the Marines' claims nonjusticiable, the Church court also cited the well-established principle that a court should not review internal military affairs in the absence of exhaustion of available interservice corrective measures, concluding that "granting the urgent injunctive relief sought by the Service Member Plaintiffs would require the Court to adjudicate internal military affairs before the military chain of command has had full opportunity to consider the accommodation requests at issue." Judge Moore agrees with the rationale in Church and concludes that the Plaintiffs' claims involve uncertain and contingent events that may not occur as anticipated. As noted in the Court's previous Order, the Plaintiffs' contention that they may be subject to discipline for refusing to take a vaccine appears to be based on nothing more than speculation. Because the Plaintiffs have not established that their claims are justiciable, a fortiori, they cannot establish a likelihood of success on the merits or a clear and unequivocal right to injunctive relief. Moreover, in the absence of a justiciable claim, the Defendants are entitled to dismissal of the case. With respect to the Motion for Leave and the proposed amicus brief proffered by Pritish Vora, Judge Moore finds that the information therein is not useful or otherwise necessary to the administration of justice, and therefore he declines to consider it further. III. Conclusion Accordingly, Judge Moore denied the Plaintiffs' Motion for Preliminary Injunction, granted the Defendants' Motion to Dismiss, and denied the Motion for Leave. The Clerk is directed to close the case. A full-text copy of the Court's Jan. 11, 2022 Order is available at https://tinyurl.com/4ke6x6yh from Leagle.com. UNITED STATES: Court Dismisses Robert Class Suit ------------------------------------------------ In the class action lawsuit captioned as DAN ROBERT, SSG, U.S. Army, HOLLIE MULVIHILL, SSgt, U.S. Marine Corps, and other similarly situated individuals, v. LLOYD AUSTIN, in his official capacity as Secretary of Defense, U.S. Department of Defense, XAVIER BACERRA, in his official capacity as Secretary of the U.S. Department of Health and Human Services, and JANET WOODCOCK, in her official capacity as Acting Commissioner of the U.S. Food and Drug Administration, Case No. 1:21-cv-02228-RM-STV (D. Colo.), the Hon. Judge Raymond P. Moore entered an order: 1. denying the Plaintiffs' motion for preliminary injunction; 2. granting Defendants' motion to dismiss; and 3. denying the motion for leave. The Plaintiffs are members of the military who were stationed in North Carolina when they brought this action on behalf of themselves as well as all other similarly situated active-duty National Guard and Reserve service members who are subject to Department of Defense regulations and have been ordered by the Secretary of Defense, Defendant Austin, to take a Covid-19 vaccine. As "documented survivors of Covid-19," they assert that have acquired immunity that is "at least as effective" as that achieved via vaccination, and they seek temporary and permanent injunctive relief preventing their forced vaccination. In addition to asserting class action allegations, the Amended Complaint asserts claims for (1) violation of the Administrative Procedure Act, (2) violation of 10 U.S.C. section 1107, (3) violation of 10 U.S.C. section 1107a, (4) violation of 50 U.S.C. section 1520, and (5) violation of the Fourteenth Amendment. The United States Department of Defense is an executive branch department of the federal government charged with coordinating and supervising all agencies and functions of the government directly related to national security and the United States Armed Forces. The United States Department of Health and Human Services, is a cabinet-level executive branch department of the U.S. federal government created to protect the health of all Americans and providing essential human services. The United States Food and Drug Administration is a federal agency of the Department of Health and Human Services. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/33slsbD at no extra charge.[CC] VALVE CORPORATION: Wins Summary Judgment v. G.G. et al. ------------------------------------------------------- In the class action lawsuit captioned as G.G. et al., v. Valve Corporation, Case No. C16-1941JLR (W.D. Wash.), the Hon. Judge James L. Robart entered an order granting Defendant's motion for summary judgment. The Court said, "Although the Plaintiffs assert that they would not have "given their children money to purchase keys to open Valve's loot boxes had they known it amounted to gambling", they do not explain how they would have learned this information where they never visited or used any of the websites or platforms where Valve might have made such disclosures. The court agrees with Valve that no reasonable factfinder could find that Plaintiffs' decisions would have been affected by information to which they were never exposed. Therefore, the court grants Valve's motion for summary judgment on Plaintiffs' CPA claims based on alleged omissions of material fact." In their sole remaining claim in this action, the Plaintiffs allege that Valve supported illegal gambling in its popular video games such as Counter Strike: Global Offensive ("CS:GO") by embedding within them a "lootbox" feature that, they assert, "simulated an online slot machine and effectively constituted a gambling feature in what otherwise to be normal video games." The lootbox feature enables players to spend money on virtual keys to open virtual weapons cases containing virtual guns and knives, referred to as "skins," which have a variety of different looks and textures and are 13 different levels of rarity. Players can then trade or sell the skins using Valve's online Steam Marketplace. Valve Corporation, also known as Valve Software, is an American video game developer, publisher, and digital distribution company headquartered in Bellevue, Washington. A copy of the Court's order dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3zY4Vbs at no extra charge.[CC] VF OUTDOOR: Class Cert. Briefing Deadlines, Hearing Continued ------------------------------------------------------------- In the class action lawsuit captioned as BRIANA VALENCIA, an individual, on behalf of all persons similarly situated on behalf of the State of California, as a private attorney general, and on behalf of all aggrieved employees, v. VF OUTDOOR, LLC, a California limited liability company, and DOES 1 to 50, inclusive, Case No. 1:20-cv-01795-DAD-SKO (E.D. Cal.), the Hon. Judge Sheila K. Oberto entered an order continuing class certification briefing deadlines and hearing as follows: 1. Any opposition to the motion for January 31, 2021 class certification shall be filed by no later than: 2. Any reply brief in support of Feb. 14, 2022 the motion for class certification shall be filed by no later than: 3. The motion for class certification March 2, 2022 shall be heard on: VF Outdoor was founded in 2000. The Company's line of business includes the manufacturing of men's and boy's clothing. A copy of the Defendant's motion dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3frEtxs at no extra charge.[CC] The Defendant is represented by: Lonnie D. Giamela, Esq. Lalonnie V. Gray, Esq. FISHER & PHILLIPS LLP 444 South Flower Street, Suite 1500 Los Angeles, CA 90071 Telephone: (213) 330-4500 Facsimile: (213) 330-4501 E-mail: lgiamela@fisherphillips.com lgray@fisherphillips.com VIVINT SOLAR: Briefing Schedule for Class Certification Modified ---------------------------------------------------------------- In the class action lawsuit captioned as GERRIE DEKKER, individually and on behalf of all others similarly situated, v. VIVINT SOLAR, INC., VIVINT SOLAR HOLDINGS, INC., VIVINT SOLAR DEVELOPER, LLC, and VIVINT SOLAR PROVIDER, LLC, Case No. 3:19-cv-07918-WHA (N.D. Cal.), the Hon. Judge William Alsup entered an order regarding briefing schedule for the motion for class certification as follows: Scheduled Event Current Modified Deadline Deadline -- Opposition brief Jan. 10, 2022 Jan. 27, 2022 -- Reply brief Jan. 24, 2022 Feb. 10, 2022 -- Hearing date Jan. 24, 2022 Feb. 24, 2022 The parties previously stipulated and agreed to a modification of the class certification briefing schedule, which the Court adopted (as modified) on December 14, 2021. The purpose of the previous stipulation was to allow Defendants, before filing their opposition to Plaintiff's motion for class certification, to take the deposition of Nora Ostrofe, who submitted an expert declaration in support of Plaintiff's Motion. Ms. Ostrofe's deposition, which had been scheduled for January 5, 2022, needed to be continued as a result of a necessary participant in the deposition suffering from COVID-19. The first date on which Ms. Ostrofe and counsel are available to proceed with her deposition is January 21, 2022. Vivint is an American solar energy company headquartered in Lehi, Utah. It is a residential solar provider that designs, installs, and maintains photovoltaic systems. A copy of the Court's order dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3tsdvxP at no extra charge.[CC] The Plaintiff is represented by: Joshua D. Boxer, Esq. Matthew J. Matern, Esq Corey Bennett, Esq MATERN LAW GROUP, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531-1900 Facsimile: (310) 531-1901 E-mail: mmatern@maternlawgroup.com jboxer@maternlawgroup.com cbennett@maternlawgroup.com The Defendants are represented by: Esther Kim Chang, Esq. Fred Norton, Esq. Bree Hann, Esq. George C. Harris, Esq. THE NORTON LAW FIRM PC 299 Third Street, Suite 200 Oakland, CA 94607 Telephone: (510) 906-4900 E-mail: fnorton@nortonlaw.com bhann@nortonlaw.com gharris@nortonlaw.com echang@nortonlaw.com WAL-MART ASSOCIATES: Stipulation to Modify Schedule in Carlos OK'd ------------------------------------------------------------------ In the class action lawsuit captioned as NICO CARLOS, as individuals and on behalf of others similarly situated, v. WAL-MART ASSOCIATES, INC., a Delaware corporation, and DOES 1-50, inclusive, the Hon. Judge Andre Birotte Jr. entered an order granting joint stipulation to modify schedule as follows: -- The following pre-trial and trial dates and deadlines are modified as identified in the table below, which will supersede the dates and deadlines identified in the July 8, 2021 Scheduling Order; and -- Any pre-trial dates not identified in the table below will remain unchanged and as scheduled in the July 8, 2021 Scheduling Order. Event Date -- Non-Expert Discovery Cut-Off: Aug. 5, 2022 -- Expert Disclosure (Initial): June 24, 2022 -- Expert Disclosure (Rebuttal): July 15, 2022 -- Expert Discovery Cut-Off: Aug. 5, 2022 -- Last Date to Hear Motions: Aug. 5, 2022 -- Deadline to File Class March 18, 2022 Certification Motion: -- Deadline to File Opposition April 29, 2022 to Class Certification Motion: -- Deadline to File Reply in May 13, 2022 Support of Class Certification Motion: -- Hearing for Class Certification May 27, 2022 Motion: -- Deadline for Settlement Aug. 17, 2022 Conference: -- Trial Filings (first round): Oct. 7, 2022 -- Trial Filings (second round): Oct. 14, 2022 -- Final Pretrial Conference: Oct. 28, 2022 -- Jury Trial (5-6 days): Nov. 15, 2022 Walmart is an American multinational retail corporation that operates a chain of hypermarkets, discount department stores, and grocery stores from the United States, headquartered in Bentonville, Arkansas. A copy of the Court's order dated Jan. 11, 2021 is available from PacerMonitor.com at https://bit.ly/3rpUPw8 at no extra charge.[CC] WELLS FARGO: Healy Suit Moved to Northern District of California ---------------------------------------------------------------- In the case, PATRICK HEALY, on behalf of himself and all others similarly situated, Plaintiff v. WELLS FARGO BANK, N.A. and DOES 1 through 5, Defendants, Case No. 20-cv-01838-H-AHG (S.D. Cal.), Judge Marilyn L. Huff of the U.S. District Court for the Southern District of California granted the Plaintiff's motion to transfer venue to the U.S. District Court for the Northern District of California. I. Introduction On Aug. 11, 2020, Plaintiff Healy filed a class action complaint against Defendants Wells Fargo and Does 1 through 5 in the Superior Court of California, County of San Diego, alleging various claims related to the Defendants' mortgage servicing operations. On Sept. 18, 2020, Defendant Wells Fargo removed the case to federal court. On Nov. 2, 2020, the Defendant filed a motion to transfer the action to the U.S. District Court for the Western District of Virginia. The Court denied the Defendant's motion to transfer on Dec. 3, 2020. Shortly thereafter, the Plaintiff moved to transfer venue to the U.S. District Court for the Northern District of California. II. Background The Plaintiff owns a home located in San Marcos, California. According to him, this home "is encumbered by a lien securing repayment of a home mortgage loan issued by and/or serviced by the Defendant." He alleged that Wells Fargo is a mortgage servicing company that applies those payments to his loan and reports payment information to consumer credit reporting agencies. The Plaintiff contends that Wells Fargo placed his home mortgage account into a forbearance program, which was designed to protect homeowners with COVID-19 related financial hardships, and subsequently reported to credit agencies that "no payments had been made at all on [his] account for months." He, however, claims that he never consented to be placed in a loan forbearance program and "had been making each monthly payment in full and on time every single month." The Plaintiff asserts that he suffered financial consequences because of Wells Fargo's actions. He alleges that he was unable to refinance his home mortgage loan because of the alleged false reports made by Wells Fargo. Consequently, the Plaintiff filed a California class action complaint against Wells Fargo on Aug. 11, 2020, bringing a single cause of action under the California Consumer Credit Reporting Act, Cal. Civ. Code Section 1785.25(a) (the "CCRAA") on his own behalf and on behalf of others similarly situated. By the present motion, the Plaintiff moves to transfer the case to the U.S. District Court for the Northern District of California. III. Discussion The Plaintiff argues that the Court should transfer the action pursuant to 28 U.S.C. Section 1404(a). Section 1404(a) provides that "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." "The district court has discretion to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness." First, the Court must determine whether the case could have been originally brought in the Northern District of California. A transferee court must "(1) be able to exercise personal jurisdiction over the defendants, (2) have subject matter jurisdiction over the claim, and (3) be a proper forum." These requirements must be met irrespective of any potential waiver by the defendant. "The moving party bears the burden of showing that jurisdiction and proper venue would exist in the district to which a transfer is requested." Second, the Court must weigh a variety of factors related to convenience and the interests of justice to determine whether transfer is appropriate. A. Personal Jurisdiction At issue is (1) whether the U.S. District Court for the Northern District of California could exercise personal jurisdiction over the Defendant in this case and (2) whether the Northern District of California would be a proper venue. In the instant case, these analyses fold into one another. Because neither party asserts that any event or omission that gave rise to the Plaintiff's cause of action occurred in the Northern District of California, venue will only be proper if Wells Fargo "resides" in that district within the meaning of 28 U.S.C. Section 1391(b). Further, because the Plaintiff alleges that Wells Fargo is a national banking association, the Defendant will be "deemed to reside in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question." In a state with multiple districts, a "corporation will be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State." Thus, venue will be proper in the Northern District of California if the Court determines that the Defendant is subject to personal jurisdiction in that district. 1. General Jurisdiction and National Banking Associations The parties disagree as to whether a national banking association should be treated differently than other corporations for purposes of general jurisdiction. Wells Fargo argues that since it is a national banking association, it lacks a place of incorporation, and thus, its main office must be its principal place of business. Consequently, it is only "at home" for general jurisdiction purposes in the location of its "main office" -- in the case, South Dakota. In contrast, the Plaintiff argues that a national banking association's principal place of business is not necessarily the location of its main office. He asserts that Wells Fargo's principal place of business is in the Northern District of California. As an initial matter, Judge Huff agrees that Wells Fargo does not have a place of incorporation. However, she does not view Wells Fargo's status as a "national bank" to merit an exception from the Supreme Court's established framework for general jurisdiction. First, her analysis does not change because Wells Fargo has a "main office" rather than a "place of incorporation." Second, she disagrees with Wells Fargo's view that a national banking association's main office must be its principal place of business. 2. Wells Fargo's Principal Place of Business Judge Huff turns to whether Wells Fargo maintains its principal place of business in the Northern District of California according to the framework set forth in Hertz Corp. v. Friend, 559 U.S. 77 (2010). Under Hertz, a corporation's principal place of business is "the place where a corporation's officers direct, control, and coordinate the corporation's activities." This place is often referred to by courts as the "nerve center" of the corporation. "In practice it should normally be the place where the corporation maintains its headquarters -- provided that the headquarters is the actual center of direction, control, and coordination, i.e., the 'nerve center,' and not simply an office where the corporation holds its board meetings." "A corporation's 'nerve center,' usually its main headquarters, is a single place. The public often (though not always) considers it the corporation's main place of business." Wells Fargo produces no authority that supports an exception to the Hertz framework for national banking associations. Wells Fargo has maintained that it is headquartered in South Dakota. But its basis for this claim appears to rest solely on the location of its "main office." Wells Fargo does not contest the Plaintiff's exhibit that purports to show that Wells Fargo's "corporate offices" are located in San Francisco. Nor does Wells Fargo argue that South Dakota is home to the corporate activities that would constitute its "nerve center," i.e., the center of direction, control, and coordination. The Plaintiff's factual allegations are buttressed by contemporary opinions in which courts of the Circuit found that Wells Fargo's principal place of business is in San Francisco or in California. In response, Wells Fargo argues that its "decision to subject itself to the jurisdiction of a district in one case does not, and should not, factor into any analysis concerning whether it must subject itself to the jurisdiction of that same district in another case." But several of these courts stated affirmative conclusions about Wells Fargo's principal place of business. Their conclusions were not based on Wells Fargo's concession as to personal jurisdiction. Hence, Judge Huff finds that the Plaintiff sufficiently carries his burden to establish that Wells Fargo's principal place of business is in San Francisco. Thus, she concludes that Wells Fargo is subject to general personal jurisdiction in the Northern District of California. B. Section 1404(a) Analysis Judge Huff now turns to whether a transfer would be "for the convenience of parties and witnesses, in the interest of justice" pursuant to 28 U.S.C. Section 1404(a). A court must weigh multiple factors as part of its analysis. Some of these factors include: "(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof." Judge Huff begins with a consideration of whether the case may be consolidated with other claims after transfer. The Plaintiff argues that several cases against Wells Fargo stemming from the same facts either are or will soon be in the Northern District of California. Two of the cases identified by him were initially brought in the Northern District and later consolidated before the Hon. James Donato. A hearing on a motion to dismiss in the lead case is currently scheduled for March 24, 2022. In another case, Forsburg v. Wells Fargo, 5:20-cv-46 (W.D. Va.), plaintiffs are currently seeking transfer to the Northern District of California from the Western District of Virginia; that motion remains pending. The district court held oral argument on plaintiffs' motion to transfer and Wells Fargo's motion to dismiss on Dec. 16, 2021. A different case, Echard v. Wells Fargo Bank N.A., 2:21-cv-5080 (S.D. Ohio), began in the Western District of Washington and was then transferred to the Northern District of California. The parties jointly sought and received a second transfer of venue -- this time to the Southern District of Ohio. After that transfer, plaintiffs from the California and Virginia actions (including the Plaintiff in the instant case) jointly moved to intervene and to transfer the Echard case back to the Northern District of California. Echard and Wells Fargo oppose this motion, which is pending before the district court in the Southern District of Ohio. Regardless of whether the Echard and Forsburg cases are ultimately transferred to the Northern District of California, Judge Huffconcludes that it is feasible to consolidate the instant matter with the Delapapa case in the Northern District of California. The facts and law implicated in Delapapa align with those in the instant case. The plaintiffs in both cases seek to represent a class of individuals whose mortgages were purportedly placed into forbearance by Wells Fargo under the borrower protection provisions of the Coronavirus Aid, Relief, and Economic Security Act without their consent. It is likely that there is a significant overlap in the discovery necessary for the litigation of these cases. The cases are in similar procedural stages so there is little risk that transfer will result in duplicated efforts by the parties. Accordingly, this factor weighs heavily in favor of transfer. The other factors before the Court are either neutral (e.g., parties' respective contacts with each forum, litigation costs, and ease of access to sources of proof) or only slightly favor litigation in this district (i.e., contacts in this forum that relate to Plaintiff's cause of action), Judge Huff finds. She says, transfer is convenient for the witnesses and the parties and in the interests of justice. It will be more convenient for all witnesses, including the party witnesses, for the case to be consolidated into one forum. Consolidation reduces the likelihood that the witnesses will have to travel to different districts to testify on similar facts. Consolidation will also be more convenient for the parties and reduce the expenses involved in duplicative discovery and litigation. A transfer will ultimately benefit judicial economy by consolidating proceedings concerning the same facts and parties into the same district. As a result, Judge Huff concludes that transfer is appropriate. IV. Conclusion For the reasons she set forth, Judge Huff granted the Plaintiff's motion to transfer the action to the U.S. District Court for the Northern District of California. Accordingly, the action is transferred to the Northern District of California for all further proceedings. Judge Huff vacated all pending dates set by this Court to permit the Northern District of California to set appropriate dates as it sees fit. A full-text copy of the Court's Jan. 11, 2022 Order is available at https://tinyurl.com/2p938brx from Leagle.com. WELLS FARGO: Urista Suit Moved to Northern District of California ----------------------------------------------------------------- In the case, JOSE URISTA, on behalf of himself and all others similarly situated, Plaintiff v. WELLS FARGO & COMPANY and WELLS FARGO BANK, N.A., Defendants, Case No. 20-cv-01689-H-AHG (S.D. Cal.), Judge Marilyn L. Huff of the U.S. District Court of for the Southern District of California granted the Plaintiff's motion to transfer venue to the U.S. District Court for the Northern District of California. I. Introduction On Aug. 29, 2020, Plaintiff Urista filed a class action complaint against Defendants Wells Fargo & Co. ("WF & Co.") and Wells Fargo Bank, N.A. ("Wells Fargo") alleging various claims related to the Defendants' mortgage servicing operations. On Nov. 3, 2020, the Defendants filed a motion to transfer the action to the U.S. District Court for the Western District of Virginia. The Court denied Defendants' motion to transfer on Dec. 16, 2020. Shortly thereafter, the Plaintiff moved to transfer venue to the U.S. District Court for the Northern District of California. At the parties' request, the Court's review of this motion was postponed, and the motion was withdrawn. The motion was eventually refiled on Sept. 14, 2021. The Defendant filed its opposition to the motion on Oct. 18, 2021. The Plaintiff filed his reply in support of its motion on Oct. 25, 2021. Judge Huff, pursuant to its discretion under Local Rule 7.1(d)(1), determines that the motion is fit for resolution without oral argument and submits the motion on the parties' papers. II. Background The Plaintiff's primary residence is in El Cajon, California. According to the Plaintiff, this home is secured by a mortgage serviced by Defendant Wells Fargo, a national banking association headquartered in South Dakota. Wells Fargo is a subsidiary of Defendant WF & Co., a corporation incorporated in Delaware and headquartered in San Francisco, California. On March 25, 2020, in response to the economic damage beginning to be felt by Americans throughout the country, the United States Senate passed the Coronavirus Aid, Relief and Economic Security ("CARES") Act. In relevant part, the CARES Act provided certain homeowners "experiencing financial hardships because of COVID-19 with the option to request up to 180 days of forbearance on their mortgage." As the Plaintiff contends, the Defendants are financially incentivized to place the mortgage loan accounts that they service into forbearance. The Plaintiff alleges that the Defendants placed his mortgage loan account into this forbearance program without his consent. He suggests that his account was placed into forbearance because his "spouse clicked on an informational link on Wells Fargo's website which offered only to 'provide more information' about possible forbearance options." As the Plaintiff explains, he "never made any request whatsoever in writing, orally, or via any other means to put his mortgage into forbearance." To support the notion that the Defendants unilaterally placed his mortgage account into forbearance, the Plaintiff cites to several authorities in his complaint claiming that the Defendants have engaged in similar conduct. The Plaintiff alleges that he was harmed by the Defendants' placement of his mortgage loan account into a forbearance program because it negatively impacted his creditworthiness, made him unable to refinance his home, and caused a "loss of the interest on the payments he has been timely making." Consequently, the Plaintiff filed a complaint against Defendants on Aug. 29, 2020. The Plaintiff brings three claims against the Defendants arising under California law on his own behalf and on behalf of a putative California class. He also brings claims for injunctive relief and unjust enrichment against the Defendants on his own behalf and on behalf of a putative nationwide class. By the present motion, the Plaintiff moves to transfer the case to the U.S. District Court for the Northern District of California. III. Discussion The Plaintiff argues that the Court should transfer this action pursuant to 28 U.S.C. Section 1404(a). (Id.) Section 1404(a) provides that "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." "The district court has discretion to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness." First, the Court must determine whether this case could have been originally brought in the Northern District of California. A transferee court must "(1) be able to exercise personal jurisdiction over the defendants, (2) have subject matter jurisdiction over the claim, and (3) be a proper forum." These requirements must be met irrespective of any potential waiver by the defendant. Second, it must weigh a variety of factors related to convenience and the interests of justice in order to determine whether transfer is appropriate. A. Personal Jurisdiction At issue is (1) whether the U.S. District Court for the Northern District of California could exercise personal jurisdiction over Wells Fargo in this case2 and (2) whether the Northern District of California would be a proper venue. 1. General Jurisdiction and National Banking Associations The parties disagree as to whether a national banking association should be treated differently than other corporations for purposes of general jurisdiction. The Defendants argue that since Wells Fargo is a national banking association, it lacks a place of incorporation, and thus, its main office must be its principal place of business. Consequently, Wells Fargo is only "at home" for general jurisdiction purposes in the location of its "main office" -- in the case, South Dakota. In contrast, the Plaintiff argues that a national banking association's principal place of business is not necessarily the location of its main office. He asserts that Wells Fargo's principal place of business is in the Northern District of California. As an initial matter, Judge Huff agrees that Wells Fargo does not have a place of incorporation. However, she does not view Wells Fargo's status as a national banking association to merit an exception from the Supreme Court's established framework for general jurisdiction. First, her analysis does not change because Wells Fargo has a "main office" rather than a "place of incorporation." Second, she disagrees with the Defendants' view that a national banking association's main office must be its principal place of business. 2. Wells Fargo's Principal Place of Business Judge Huff now turns to whether Wells Fargo maintains its principal place of business in the Northern District of California according to the framework set forth in Hertz Corp. v. Friend, 559 U.S. 77 (2010). Under Hertz, a corporation's principal place of business is "the place where a corporation's officers direct, control, and coordinate the corporation's activities." This place is often referred to by courts as the "nerve center" of the corporation. "In practice it should normally be the place where the corporation maintains its headquarters -- provided that the headquarters is the actual center of direction, control, and coordination, i.e., the 'nerve center,' and not simply an office where the corporation holds its board meeting." "A corporation's 'nerve center,' usually its main headquarters, is a single place. The public often (though not always) considers it the corporation's main place of business." The Defendants have maintained that Wells Fargo is headquartered in South Dakota. But their basis for this claim appears to rest solely on the location of Wells Fargo's "main office." The Defendants do not argue that South Dakota is home to the corporate activities that would constitute Wells Fargo's "nerve center," i.e., the center of direction, control, and coordination. The Plaintiff's factual allegations are buttressed by contemporary opinions in which courts of this Circuit found that Wells Fargo's principal place of business is in San Francisco or in California. In response, the Defendants argue that "Wells Fargo's decision to subject itself to the jurisdiction of a district in one case does not, and should not, factor into any analysis concerning whether it must subject itself to the jurisdiction of that same district in another case." But several of these courts stated affirmative conclusions about Wells Fargo's principal place of business. Their conclusions were not based on Wells Fargo's concession as to personal jurisdiction. Judge Huff concludes that the Plaintiff sufficiently carries his burden to establish that Wells Fargo's principal place of business is in San Francisco. Thus, she concludes that Wells Fargo is subject to general personal jurisdiction in the Northern District of California. B. Section 1404(a) Analysis Judge Huff now turns to whether a transfer would be "for the convenience of parties and witnesses, in the interest of justice" pursuant to 28 U.S.C. Section 1404(a). A court must weigh multiple factors as part of its analysis. Some of these factors include: "(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof." The Plaintiff argues that several cases against Wells Fargo stemming from the same facts either are or will soon be in the Northern District of California. Two of the cases identified by the Plaintiff were initially brought in the Northern District and later consolidated before the Hon. James Donato. A hearing on a motion to dismiss in the lead case is currently scheduled for March 24, 2022. In another case, Forsburg v. Wells Fargo, 5:20-cv-46 (W.D. Va.), plaintiffs are currently seeking transfer to the Northern District of California from the Western District of Virginia; that motion remains pending. The district court held oral argument on plaintiffs' motion to transfer and Wells Fargo's motion to dismiss on Dec. 16, 2021. A different case, Echard v. Wells Fargo Bank N.A., 2:21-cv-5080 (S.D. Ohio), began in the Western District of Washington and was then transferred to the Northern District of California. The parties jointly sought and received a second transfer of venue -- this time to the Southern District of Ohio. After that transfer, plaintiffs from the California and Virginia actions (including the Plaintiff in the instant case) jointly moved to intervene and to transfer the Echard case back to the Northern District of California. Echard and Wells Fargo oppose this motion, which is pending before the district court in the Southern District of Ohio. Regardless of whether the Echard and Forsburg cases are transferred to the Northern District of California, Judge Huff concludes that it is feasible to consolidate the instant matter with the Delapapa case in the Northern District of California. Sh says, the facts and law implicated in Delapapa align with those in the instant case. The plaintiffs in both cases seek to represent a class of individuals whose mortgages were purportedly placed into forbearance by Wells Fargo under the borrower protection provisions of the CARES Act without their consent. It is likely that there is a significant overlap in the discovery necessary for the litigation of these cases. The cases are in similar procedural stages so there is little risk that transfer will result in duplicated efforts by the parties. Accordingly, this factor weighs heavily in favor of transfer. The other factors before the Court are either neutral (e.g., parties' respective contacts with each forum, litigation costs, and ease of access to sources of proof) or only slightly favor litigation in this district (i.e., contacts in this forum that relate to Plaintiff's cause of action). Transfer is convenient for the witnesses and the parties and in the interests of justice. It will be more convenient for all witnesses, including the party witnesses, for this case to be consolidated into one forum. Consolidation reduces the likelihood that the witnesses will have to travel to different districts to testify on similar facts. Consolidation will also be more convenient for the parties and reduce the expenses involved in duplicative discovery and litigation. A transfer will ultimately benefit judicial economy by consolidating proceedings concerning the same facts and parties into the same district. As a result, Judge Huff concludes that transfer is appropriate. IV. Conclusion For the reasons she set forth, Judge Huff granted the Plaintiff's motion to transfer the action to the U.S. District Court for the Northern District of California. Accordingly, the action is transferred to the Northern District of California for all further proceedings. Judge Huff vacated all pending dates set by the Court to permit the Northern District of California to set appropriate dates as it sees fit. A full-text copy of the Court's Jan. 11, 2022 Order is available at https://tinyurl.com/mr3u6s5f from Leagle.com. WHOLESALE CORP: Briefing Deadlines for Class Cert. Bid Extended --------------------------------------------------------------- In the class action lawsuit captioned as Pit Row Inc., et al., v. Costco Wholesale Corporation, Case No. 1:20-cv-00738 (E.D. Wisc.), the Hon. Judge William C. Griesbach entered an order approving stipulation to extend briefing deadlines for class certification motion. -- The Defendant's response is due March 1, 2022. -- The Plaintiff's reply is due March 22, 2022. The nature of suit states Torts - Personal Property - Other Personal Property Damage. Pit Row Inc is located in Green Bay, Wisconsin, and is part of the Gasoline Stations Industry. Costco Wholesale is an American multinational corporation which operates a chain of membership-only big-box retail stores.[CC] WILDERNESS SPORTS: Fails to Protect Customers' Info, Pfeffer Says ----------------------------------------------------------------- JESSE PFEFFER, individually and on behalf of all others similarly situated, Plaintiff v. WILDERNESS SPORTS WAREHOUSE, LLC dba TACKLE WAREHOUSE, LLC; SPORTS WAREHOUSE INC. dba TENNIS WAREHOUSE, LLC; RUNNING WAREHOUSE, LLC; and SKATE WAREHOUSE, LLC, Defendants, Case No. 2:22-cv-297 (C.D. Cal., Jan. 13, 2022) arises from a widespread data breach which affected Defendants' payment card information that occurred October 1, 2021 wherein hackers allegedly stole customers' personally identifiable information, including addresses, payment card account numbers, card expiration dates, and payment card verification values. The Plaintiff brings this action on behalf of all persons whose personally identifiable information was compromised as a result of Defendants' failure to: (i) adequately protect its users' information, (ii) warn users of their inadequate information security practices, and (iii) effectively monitor their websites and e-commerce platform for security vulnerabilities and incidents. The Defendants' conduct amounts to negligence and violates federal and state statute, says the suit. The Defendants are a group of ecommerce specialty sporting goods retailers that operate online websites that sell discount sporting goods in Maryland and across and the United States.[BN] The Plaintiff is represented by: Jon A. Tostrud, Esq. TOSTRUD LAW GROUP, P.C. 1925 Century Park East, Ste 2100 Los Angeles, CA 90067 Telephone: (310) 278-2600 Facsimile: (310) 278-2640 E-mail: jtostrud@tostrudlaw.com - and - Nathan D. Prosser, Esq. HELLMUTH & JOHNSON PLLC 8050 West 78th Street Edina, MN 55439 Telephone: (952) 941-4005 Facsimile: (952) 941-2337 E-mail: nprosser@hjlawfirm.com WOODALLS INC: Loses Bid to Dismiss Akers Amended Complaint ----------------------------------------------------------- In the class action lawsuit captioned as MARTHA AKERS, RAY JORDAN, DYAN MATHESON, NANCY OLIVER, and DAWN PEASE, on behalf of themselves, the class of current, and former mobile homeowners in the Park and all others similarly situated, v. TIMOTHY NEWBY, TODD NEWBY, BARRY CAMPBELL, NEIL BROWN, WOODALLS, INC., and NEWBY COMMUNITIES, INC., d/b/a NEWBY MANAGEMENT, Case No. 8:21-cv-00140-MSS-SPF (M.D. Fla.), the Hon. Judge Mary Scriven entered an order: 1. denying the Defendants' motion to dismiss amended complaint; and 2. denying without prejudice the Plaintiffs' Motion for Class Certification. The Court said, "There is simply insufficient evidence before the Court to find that Plaintiffs have met the Rule 23 requirements for class certification." The motion for class certification is therefore denied without prejudice. On or before February 4, 2022, the Plaintiffs may renew their motion for class certification, this time with "evidence supporting such motion so that the Court is equipped with the necessary information to determine the appropriateness of class certification." The Plaintiffs should be mindful of their Rule 11 obligations in making any factual or legal assertions in pleadings to the Court. The Plaintiffs Martha Akers, Ray Jordan, Dyan Matheson, Nancy Oliver, and Dawn Pease are residents of Woodalls Mobile Home Village in Lakeland, Florida. Woodalls is owned and operated by the Defendants Woodalls, Inc. and Newby Communities, Inc. The Defendants Timothy Newby, Todd Newby, Barry Campbell, and Neil Brown hold executive-level positions at Newby Communities. The Plaintiffs allege that from 2009 to the present, the Defendants have required them to "pay illegal fees or charges and pay unreasonably higher lot rent including fraudulently over-billed ad valorem tax pass-ons." An ad valorem tax is a tax "levied according to the value of property as determined by an assessment or appraisal." Florida law permits owners of mobile home parks to "pass on, at any time during the term of the lot rental agreement, ad valorem property taxes" so long as the "ad valorem property taxes [are] disclosed as a separate charge or a factor for increasing the lot rental amount in the prospectus or rental agreement." The Plaintiffs claim Defendants' alleged "fraudulent overbilling" was revealed in September 2018, when Woodalls' owner sent a letter to residents announcing that it had miscalculated the ad valorem tax pass-ons to residents from 2014 to 2018. The letter disclosed that, by excluding RV lots, the owner had incorrectly assessed the taxes among 216 lots instead of 328 lots. As a result, each resident overpaid ad valorem tax pass-ons every month from 2014 to 2018. The Plaintiffs brought this putative class action in Florida state court, alleging that Defendants violated (and conspired to violate) the Racketeer Influenced and Corrupt Organizations Act ("RICO") by committing (and agreeing to commit) predicate acts of mail and wire fraud. A copy of the Court's order dated Jan. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3nta0DA at no extra charge.[CC] XPO LAST: Gonzalez Wins Bid for Class Certification --------------------------------------------------- In the class action lawsuit captioned as RAMON GONZALEZ, VICTOR RODRIGUEZ ORTIZ, and ADDELYN MARTE, on behalf of themselves and all others similarly situated, v. XPO LAST MILE, INC., d/b/a XPO LOGISTICS, Case No. 1:19-cv-10290-TSH (D. Mass.), the Hon. Judge Timothy S. Hillman entered an order granting the plaintiffs' motion for class certification. The Court certifies the following class for Counts I and II: "All drivers who performed deliveries in Massachusetts on behalf of XPO to Lowe's customers within the period of July 20, 2015 to present, excluding helpers and any drivers who signed contracts with XPO." The Court appoints Ramon Gonzalez, Victor Rodriguez Ortiz, and Addelyn Marte as class representatives, and Fair Work, P.C. as class counsel. The Court said, "The plaintiffs argue that in the absence of class treatment, few other drivers will have the resources, knowledge, or courage to enforce their rights under the Massachusetts wage laws. XPO develops no argument to the contrary, instead asserting that because this case involves multiple employers, the plaintiffs' broad statements concerning superiority do not apply. In the Court's view, the plaintiffs have the better argument. Class actions are particularly appropriate in the employment classification context. And even in cases involving intermediary entities, courts have found class treatment to be a superior method of adjudication. Accordingly, here, the Court finds that the superiority requirement is met." The Plaintiffs Ramon Gonzalez, Victor Rodriguez Ortiz, and Addelyn Marte bring this action, on behalf of themselves and all others similarly situated, against XPO. The plaintiffs are delivery drivers who delivered appliances and other large consumer goods on behalf of XPO, a freight forwarder and logistics services provider, to customers of one of XPO's clients, Lowe's Home Improvement. The plaintiffs allege that XPO misclassified them as independent contractors in violation of M. G. L. c. 149, section 148B (Count I), failed to provide them the wages and benefits to which they were entitled in violation of M. G. L. c. 149, section 148 (Count II), failed to pay them a minimum wage in violation of M. G. L. c. 151, section 1A (Count III), and was unjustly enriched at their expense (Count IV). As to Counts I and II, the plaintiffs move to certify a class of drivers who performed deliveries in Massachusetts on behalf of XPO to customers of Lowe's within the period of July 20, 2015 to present, excluding helpers and any drivers who signed contracts with XPO. XPO provides freight forwarding and logistics services to retailers, such as Lowe's, who sell large consumer goods. When a Lowe's customer purchases an appliance and requests in-home delivery, Lowe's sends information about the delivery to XPO. XPO then organizes the information into delivery routes and contracts with motor carriers to make the deliveries. XPO and Lowe's have a Master Professional Services Agreement (MPSA), which incorporates a Statement of Work (SOW), defining their contractual relationship. The plaintiffs, working with motor carriers (or "contract carriers"), made deliveries on behalf of XPO to Lowe's customers in Massachusetts during the class period. A copy of the Court's order dated Jan. 10, 2021 is available from PacerMonitor.com at https://bit.ly/34UILLL at no extra charge.[CC] ********* 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 2022. 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. 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