/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220307.mbx C L A S S A C T I O N R E P O R T E R Monday, March 7, 2022, Vol. 24, No. 41 Headlines 22ND CENTURY: Class Certification Deadlines Extended in Gayed 3M COMPANY: 2,043 Suits Over AFFF-Related Injuries Filed 3M COMPANY: Faces Class Action Over Toxic Firefighting Foam 3M COMPANY: Named in Drinking Water Contamination Suit in NJ Court 3M COMPANY: Securities Case over PFAS Liability Dispute Dismissed 3M COMPANY: Settlement on Water Contamination Suit Gets Court's Nod 3M COMPANY: Settlement Reached in Toxic Waste Disposal Dispute 3M COMPANY: Trial Set for Illegal Toxic Waste Disposal Charge 3M COMPANY: Warmer Product Litigation Pending in Canadian Courts AC2T INC: Stipulated Second Amended Scheduling Order Entered ALNYLAM PHARMA: Hearing on Final Nod of Settlement Set for April 12 ALNYLAM PHARMA: Settlement of Securities Suit for Court OK AMERICAN GENERAL: More Time for Moriarty to File Reply Sought ANHEUSER-BUSCH LLC: Moves to Strike Allegations Seeking Class Cert ARISE VIRTUAL: Bell Suit Stayed Pending Arbitration AUTO-OWNERS INSURANCE: MSP Suit Seeks to Certify Rule 23 Classes BEACH HOUSE: Court Extends Discovery in Nygaard Suit BEACH HOUSE: Seeks Reconsideration of Portion of Feb. 9 Court Order BEAUNIQ LLC: CMP, Scheduling Order Entered in Tavarez Class Suit BEKAERT CORP: Not Entitled to Discovery of Absent Class Members BENIHANA INC: Class Certification Bid Nixed in Kim Suit BIG EASY: Court Amends Scheduling Order in Ramos Class Suit BOSLEY INC: Class Action Settlement in Hashemi Gets Initial Nod BOUCHERIE LLC: Gabilly Seeks Final OK of Class Action Settlement BRISTOL-MYERS SQUIBB: Plaintiff Files Amended Complaint BUCHANAN, MO: ACH Defendants' Bid for Leave to Amend Answer Nixed C.I. LOBSTER: Pagan Class Suit Seeks Conditional Certification CALMET SERVICES: State Law Claims Remanded Superior Court CHEMBIO DIAGNOSTICS: Court Narrows Claims in Securities Class Suit CHEROKEE COUNTY, NC: Ct. Awards Hogan $1.7 MM Attorneys' Fees CLEANSPARK INC: Faces Investor Suit Over Undisclosed Finances COLORADO: More Time to Reply to Class Cert. Response Sought COMPREHENSIVE HEALTHCARE: Blair Suit Seeks Class Certification CONSTELLATION NETWORK: Order Scheduling Trial & Pretrial Entered CORTEVA AFFILIATES: Faces Water Contamination Suit Caused by PFAS CRACKER BARREL: Amended Bid for Conditional Certification Sought CREDIT LAW: Ensminger Seeks Extension of Time to Reply CRST INTERNATIONAL: Court Tosses Bids for Class Certification CUYAHOGA COUNTY, OH: Parties Must File Briefs with Affidavits DASCO HME: Scheduling Order Entered in Progressive Health Suit DPV TRANSPORTATION: Class Settlement in Briggs Suit Wins Approval E.I. DU PONT DE NEMOURS: Faces Blood Contamination Suit E.I. DU PONT DE NEMOURS: Faces Suit Over PFOA Releases E.I. DU PONT DE NEMOURS: Water Contamination Suit Dismissed ENCLARITY INC: Seeks to Exclude Opinions of Expert Witness Howard ENCLARITY INC: Wins Bid to Seal Exhibit Nos. 2-7, 9, 10, 13 EVERI PAYMENTS: Saavedra Must File Class Cert. Bid by April 15 FEDEX GROUND: RSI, TTI & CEI Can't Intervene in Claiborne FLSA Suit FORD MOTOR: Leave to File Notice of Supplemental Authority Sought FOREST RIVER: Fitzgerald's Class of Workers Conditionally Certified FOX REHABILITATION: Amended Scheduling Order Entered in Conner FREDDIE MAC: Pending Breach of Contract Suits Consolidated FREDDIE MAC: Sixth Circuit Junks Bid to Dismiss Plaintiff's Appeal FRESH HARVEST: More Time to File Class Cert Bid Sought GIVESURANCE INSURANCE: Stay of Shanks Suit Lifted for Discovery GOODMAN GROUP: Court Grants Bid to Dismiss Estavilla Class Suit GREAT AMERICAN: Delaware Superior Court Dismisses Rodriguez Suit GREAT ARROW: Class Settlement in Then Suit Wins Prelim. Approval HEALTH INSURANCE: Seeks Time Extension to Oppose Class Cert. Bid HERC HOLDINGS: Ramirez Securities Suit Voluntary Dismissed ICON Foundation: Joint Stipulated Order on Stay Motion Entered INDIA GLOBALIZATION: Faces Shareholder Suit in D. Md. INDIA GLOBALIZATION: Securities Suit Over Energy Drink Consolidated INTERCONTINENTAL CAPITAL: Class Cert Response Extended to March 11 INVITATION HOMES: Court Tosses Rivera Bid for Class Status JAGUAR LAND: Bid to Certify Class Nixed as Moot in Block Suit JEFFRY KNIGHT: Yan Seeks to Certify Class of Subcontractors LOUISVILLE COUNTY, KY: Scheduling Orders Amended in Scott MADE BY HAVEN: CMP & Scheduling Order Entered in Tavarez-Vargas MDL 2901: Suit Over Marketing of Ford Ranger Fuel Economy Tossed MEDEX WASTE: Deadline for Filing Class Cert Bid Extended to May 23 MESA AIR: Faces Securities Suits in Arizona Courts Over IPO METROPOLITAN LIFE: McAlister, et al. File Class Certification Bid MINNESOTA: Karsjens' Remaining Claims Dismissed With Prejudice NATIONAL SPINE: Third Amended Case Managment, Sched Order Entered NATIONAL WATERPROOFING: Harris Suit Seeks to Certify Collective NEOVASC INC: Golla Appeals Securities Suit Dismissal to 2nd Cir. NEW YORK, NY: District Court Dismisses Donohue Class Suit NISSAN NORTH: Bid for Leave to File Reply to Opposition Sought NMCI MEDICAL: Parties in Kulik Stipulate to Continue Deadlines OHIO SECURITY: Court Dismisses Forbidden Fruit Suit With Prejudice OMNICOM GROUP: Class Certification Sought in ERISA Litigation OPTIONS HOME: Initial Pretrial Order Entered in Mihocik Suit PARADISE LESSEE: Order on Class Certification Bid Entered PEMBER COMPANIES: O'Bryan Files Bid for Class Certification PG&E CORP: Court Stays Consolidated Class Action PG&E CORP: Dismissal of Power Outage Suit Under Appeal PG&E CORP: Settlement in Vataj Suit Wins Final Nod PHYSICIANS WEALTH: Progressive Health Seeks to File Placeholder Bid PORTOLA PHARMACEUTICALS: ACERA, OFPRS Seek to Certify Class QUINCY BOOTH: Court Certifies Settlement Class in Banks Suit RADNET INC: Final Approval and Judgment Entered in Pfeiffer Suit RCI HOSPITALITY: Settlement Reached in Three Securities Suits RENEW BODY: Yan Seeks to Amend Collective Action Complaint SQUARE INC: Court Grants Bid to Compel Arbitration in Thorne Suit STARBUCKS CORP: Class Certification Briefing Schedule Continued SUTTER BAY: Class Action Settlement Gets Final Nod in Mangrubang SYMETRA ASSIGNED: White Suit Seeks to Certify Class & Subclass SYNCHRONY FINANCIAL: Dismissal of Putative Class Suit Upheld TEVA PHARMA: Court Junks Antitrust Class Suit TEVA PHARMA: Faces Antitrust Suits Over Stifled Generic Drug Entry TEVA PHARMA: Generic Drug Pricing Row Settled in D. Conn. TEVA PHARMA: Moves to Dismiss Securities Suit in E.D. Pa. UNITED SERVICES: Scheduling Order Modified in Spielman Suit UNITED STATES: Order Setting Deadlines Entered in Blades Suit UNITES STATES: Amended Scheduling Order Entered in Kidd Suit UPONOR INC: Can Compel Arbitration in Haynes Class Suit, Court Says USAA GENERAL: Case Schedule Deadlines Extended in Drozdz Suit VERIZON CONNECT: Santillan Seeks to Certify Seven Classes VIESTE SPE: Crossfirst's Bid for Leave to Amend Complaint OK'd VIKRANT CONTRACTING: Plaintiff Counsel Must Withdraw Class Cert Bid VILORE FOODS: Gross Suit Seeks to Certify Class & Subclass WHIRLPOOL CORP: Continues to Defend Two Class Suits ZILLOW GROUP: Barua Securities Suit Pending in W.D. Wash. ZILLOW GROUP: Hillier Securities Suit Pending in W.D. Wash. ZILLOW GROUP: Shotwell Securities Suit Pending in W.D. Wash. ZILLOW GROUP: Silverberg Securities Suit Pending in W.D. Wash. ZILLOW GROUP: Vargosko Securities Suit Pending in W.D. Wash. ********* 22ND CENTURY: Class Certification Deadlines Extended in Gayed ------------------------------------------------------------- In the class action lawsuit captioned as YOUSSIF GAYED, on behalf of himself, all others similarly situated, and the general public, v. 22ND CENTURY TECHNOLOGIES, INC., a New Jersey corporation; and DOES 1-50, inclusive, Case No. e 2:21-cv-03828-DSF-JPR (C.D. Cal.), the Hon. Judge Dale S. Fischer entered an order extending the class certification and trial deadlines as follows: -- Class Certification Motion Sept. 23, 2022 Filing Deadline: -- The Defendant's Deadline to File Oct. 20, 2022 Opposition: -- The Plaintiff's Deadline to File Nov. 11, 2022 Reply: -- Class Certification Hearing: Dec. 5, 2022 -- Discovery Cut-off: May 8, 2023 -- Expert Witness Exchange Deadline Initial: Dec. 19, 2022 Rebuttal: Jan. 23, 2023 Cut-off: May 8, 2023 -- Motion Hearing Cut-off: July 31, 2023 -- ADR Cut-off: Aug. 14, 2023 -- Trial Documents (Set One): Sept. 18, 2023 -- Trial Documents (Set Two): Sept. 25, 2023 -- Pretrial Conference: Oct. 16, 2023 -- Trial date: Nov. 14, 2023 22nd Century is a nationwide staffing services provider. A copy of the Court's order dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3vMMyX1 at no extra charge.[CC] 3M COMPANY: 2,043 Suits Over AFFF-Related Injuries Filed --------------------------------------------------------- The 3M Company disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that as of December 31, 2021, 2,043 lawsuits (including 32 putative class actions) alleging injuries or damages by Aqueous Film Forming Foam (AFFF) use have been filed against 3M (along with other defendants) in various state and federal courts. 3M manufactured and marketed AFFF for use in firefighting at airports and military bases from approximately 1963 to 2002. Majority of these pending cases are in a federal Multi-District Litigation (MDL) court in South Carolina. Additional AFFF cases continue to be filed in or transferred to the MDL. In December 2018, the U.S. Judicial Panel on Multidistrict Litigation (JPML) granted motions to transfer and consolidate all AFFF cases pending in federal courts to the U.S. District Court for the District of South Carolina to be managed in an MDL proceeding to centralize pre-trial proceedings. The parties in the MDL are currently in the process of conducting discovery. An initial pool of ten water supplier cases was selected in February 2021 for case-specific fact discovery as potential bellwether cases. In October 2021, the parties and the MDL court selected three of these cases for additional fact and expert discovery and for potential trial as bellwether cases. The MDL court in August 2021 issued a scheduling order and set the first bellwether cases to begin trial on or after January 1, 2023. The MDL court has encouraged the parties to negotiate to resolve cases in the MDL. In November 2021, the defendants filed an omnibus motion regarding their government contractor defense. The 3M Company is a manufacturer of surgical, medical instruments and apparatus based in St. Paul MN. 3M COMPANY: Faces Class Action Over Toxic Firefighting Foam ----------------------------------------------------------- 3M Company disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that it is named (together with other defendants, including DuPont and Chemours) in a in a putative October 2018 class action in the U.S. District Court for the Southern District of Ohio brought by a firefighter allegedly exposed to perfluoroalkyl and polyfluoroalkyl substances (PFAS) chemicals through his use of firefighting foam, purporting to represent a putative class of all U.S. individuals with detectable levels of PFAS in their blood. The plaintiff brings claims for negligence, battery, and conspiracy and seeks injunctive relief, including an order "establishing an independent panel of scientists" to evaluate PFAS. 3M and other entities jointly filed a motion to dismiss in February 2019. In September 2019, the court denied the defendants' motion to dismiss. In February 2020, the court denied 3M's motion to transfer the case to an MDL. Briefing on plaintiff's class certification motion is complete, and the court's ruling on class certification is pending. The 3M Company is a manufacturer of surgical, medical instruments and apparatus based in St. Paul MN. 3M COMPANY: Named in Drinking Water Contamination Suit in NJ Court ------------------------------------------------------------------ 3M Company disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that the company was named defendant in a putative class action alleging that drinking water from Middlesex Water Company was allegedly contaminated with perfluoroalkyl and polyfluoroalkyl substances (PFAS). 3M is also defending a putative class action filed in New Jersey federal court in November 2021 by individuals who received drinking water from Middlesex Water Company that was allegedly contaminated with PFAS in excess of state regulatory levels. Middlesex Water Company is also named as a defendant in this action. With respect to 3M, the suit asserts claims for negligence, nuisance, and trespass. Plaintiffs seek an injunction to include bottled water and home treatment systems and alleged damages for diminution-in-property value, among other relief. This case remains in early stages of litigation. The 3M Company is a manufacturer of surgical, medical instruments and apparatus based in St. Paul MN. 3M COMPANY: Securities Case over PFAS Liability Dispute Dismissed ----------------------------------------------------------------- 3M Company disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that, as of September 2021, the Minnesota federal court granted 3M's motion to dismiss a securities class action against the company. In July 2019, Heavy & General Laborers' Locals 472 & 172 Welfare Fund filed a putative securities class action against 3M Company, its former Chairman and CEO, current Chairman and CEO, and former CFO in the U.S. District Court for the District of New Jersey. In August 2019, an individual plaintiff filed a similar putative securities class action in the same district. Plaintiffs allege that defendants made false and misleading statements regarding 3M's exposure to liability associated with perfluoroalkyl and polyfluoroalkyl (PFAS) substances and bring claims for damages under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 against all defendants, and under Section 20(a) of the Securities and Exchange Act of 1934 against the individual defendants. In October 2019, the court consolidated the securities class actions and appointed a group of lead plaintiffs. In January 2020, the defendants filed a motion to transfer venue to the U.S. District Court for the District of Minnesota. In August 2020, the court denied the motion to transfer venue, and in September 2020, the defendants filed a petition for writ of mandamus to the U.S. Court of Appeals for the Third Circuit. In November 2020, the federal Court of Appeals granted 3M's petition for a writ of mandamus and directed the New Jersey federal court to transfer the action to the Minnesota federal court. The defendants filed a motion to dismiss the action in January 2021, and in September 2021, the Minnesota federal court granted 3M's motion to dismiss the securities class action, which judgment is now final. The 3M Company is a manufacturer of surgical, medical instruments and apparatus based in St. Paul MN. 3M COMPANY: Settlement on Water Contamination Suit Gets Court's Nod ------------------------------------------------------------------- 3M Company disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that a Michigan court approved a settlement agreement with regards to an alleged water contamination charge. 3M was also a defendant, together with Georgia-Pacific as co-defendant, in a putative class action in federal court in Michigan brought by residents of Parchment, who allege that the municipal drinking water was contaminated from waste generated by a paper mill owned by Georgia-Pacific's corporate predecessor. The latter allegedly uses 3M products. The defendants' motion to dismiss certain claims in the complaint was denied in January 2021. The parties engaged in mediation and in April 2021 reached a preliminary settlement agreement, subject to court approval, under which 3M and Georgia-Pacific would jointly pay an amount and be released from plaintiffs' putative class action claims. The court approved the settlement in September 2021. The 3M Company is a manufacturer of surgical, medical instruments and apparatus based in St. Paul MN. 3M COMPANY: Settlement Reached in Toxic Waste Disposal Dispute --------------------------------------------------------------- 3M Company disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that parties in a putative class action against West Morgan-East Lawrence Water and Sewer Authority, 3M, Dyneon, Daikin, BFI, and the City of Decatur in state court in Lawrence County, Alabama have agreed, in principle, to settle their dispute. Plaintiffs are residents of Lawrence, Morgan and other counties who are or have been customers of the Water Authority. They contend defendants have released perfluoroalkyl and polyfluoroalkyl substances (PFAS) that contaminate the Tennessee River and, in turn, their drinking water, causing damage to their health and properties. Plaintiffs have since amended their complaint numerous times to add additional plaintiffs. There are now approximately 4,500 named plaintiffs. The 3M Company is a manufacturer of surgical, medical instruments and apparatus based in St. Paul MN. 3M COMPANY: Trial Set for Illegal Toxic Waste Disposal Charge ------------------------------------------------------------- 3M Company disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that it is facing a class action lawsuit with plaintiffs alleging that the defendants own and operate manufacturing and disposal facilities in Decatur, Alabama that have released and continue to release perfluorooctanoate (PFOA), perfluorooctane sulfonate (PFOS) and related chemicals into the groundwater and surface water of their sites, resulting in discharges into the Tennessee River. The plaintiffs contend that, as a result of the alleged discharges, the water supplied by the Water Authority to the plaintiffs was, and is, contaminated with PFOA, PFOS and related chemicals at a level dangerous to humans. Trial is set for July 2023. Said case was filed against 3M, Dyneon, Daikin America and the West Morgan-East Lawrence Water and Sewer Authority in the U.S. District Court for the Northern District of Alabama. The plaintiffs are residents of Lawrence and Morgan County, Alabama who receive their water from the Water Authority and seek injunctive relief, attorneys’ fees, compensatory and punitive damages for their alleged personal injuries. In November 2019, the plaintiffs amended their complaint to withdraw all class allegations. Since then, the complaint has been amended several times to add or dismiss plaintiffs, and the case currently involves 42 plaintiffs. The 3M Company is a manufacturer of surgical, medical instruments and apparatus based in St. Paul MN. 3M COMPANY: Warmer Product Litigation Pending in Canadian Courts ---------------------------------------------------------------- 3M Company disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that it was served with a putative class action filed in the Ontario Superior Court of Justice in June 2016 for all Canadian residents who underwent various joint arthroplasty, cardiovascular, and other surgeries and later developed surgical site infections that the representative plaintiff claims was due to the use of the "Bair Hugger" patient warming system. The representative plaintiff seeks relief (including punitive damages) under Canadian law based on theories similar to those asserted in the multi-district litigation. The 3M Company is a manufacturer of surgical, medical instruments and apparatus based in St. Paul MN. AC2T INC: Stipulated Second Amended Scheduling Order Entered ------------------------------------------------------------ In the class action lawsuit captioned as KALMAN ROSENFELD, individually and on behalf of all others similarly situated, v. AC2T, INC., Case No. 1:20-cv-04662-FB-PK (E.D.N.Y), the Hon. Judge Peggy Kuo entered a stipulated second amended scheduling order as follows: 1. Motion for Rule 23 Class Certification shall be due on or before September 7, 2022. 2. The Opposition to the Motion for Rule 23 Class Certification shall be due 49 days after the moving brief is filed. 3. The Reply in Further Support of the Motion for Rule 23 Class Certification shall be due 28 days after the Opposition is filed. 4. All fact discovery is to be completed 60 days after the ruling on the motion for class certification. 5. A joint status report certifying the close of fact discovery and indicating whether expert discovery is needed is due 60 days after the ruling on the motion for class certification. 6. Affirmative expert reports are due 60 days after the ruling on the motion for class certification. 7. Rebuttal expert reports are due 90 days after the ruling on the motion for class certification. 8. Depositions of experts are to be completed 120 days after the ruling on the motion for class certification. 9. All discovery is to be completed 120 days after the ruling on the motion for class certification. 10. A joint status report certifying the close of all discovery is due 120 days after the ruling on the motion for class certification. 11. If any party seeks a dispositive motion, the request for a pre-motion conference (if required) or the briefing schedule must be filed 127 days after the ruling on the motion for class certification. A copy of the Court's order dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3vAOstt at no extra charge.[CC] The Plaintiff is represented by: Yitzchak Kopel, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 E-mail: ykopel@bursor.com aleslie@bursor.com The Defendant is represented by: Edward P. Boyle, Esq. Anna G. Dimon, Esq. VENABLE LLP Rockefeller Center 1270 Avenue of the Americas New York, NY 10020 Telephone: (212) 808-5675 E-mail: epboyle@venable.com agdimon@venable.com ALNYLAM PHARMA: Hearing on Final Nod of Settlement Set for April 12 ------------------------------------------------------------------- Alnylam Pharmaceuticals, Inc. disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that the company is currently defending against two lawsuits and that a hearing for the final approval of a settlement is set for April 12, 2022. On September 12, 2019, the Chester County Employees Retirement Fund, individually and on behalf of all others similarly situated, filed a purported securities class action complaint for violation of federal securities laws against us, certain of the company's current and former directors and officers, and the underwriters of our November 14, 2017 public stock offering, in the Supreme Court of the State of New York, New York County. On November 7, 2019, plaintiff filed an amended complaint, or the New York Complaint. The New York Complaint is brought on behalf of an alleged class of those who purchased company's securities pursuant and/or traceable to their November 14, 2017 public stock offering. The New York Complaint purports to allege claims arising under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933, as amended, and generally alleges that the defendants violated the federal securities laws by, among other things, making material misstatements or omissions concerning the results of the "Apollo" Phase 3 clinical trial of "patisiran." The plaintiff seeks, among other things, the designation of the action as a class action, an award of unspecified compensatory damages, rescissory damages, interest, costs and expenses, including counsel fees and expert fees, and other relief as the court deems appropriate. All defendants filed a joint motion to dismiss the New York Complaint in its entirety on December 20, 2019. On November 2, 2020, the Supreme Court of the State of New York entered a Decision and Order denying defendants' motion to dismiss. In November 2020, defendants filed a notice of appeal of the Supreme Court's decision to the Appellate Division of the Supreme Court of the State of New York for the First Department. In April 2021, the First Department entered a Decision and Order affirming in part and reversing in part the Supreme Court's decision. In June 2021, defendants filed a motion in the First Department seeking reargument or, in the alternative, for leave to appeal to the New York Court of Appeals. In August 2021, the parties reached an agreement in principle to resolve the matter. A hearing is scheduled for April 12, 2022 in the Supreme Court of the State of New York regarding final approval of the settlement. Proceedings in the First Department are adjourned until February 2022, subject to further adjournment, pending final approval of any settlement. Alnylam Pharmaceuticals, Inc. is a commercial-stage biopharmaceutical company based in Massachusetts. ALNYLAM PHARMA: Settlement of Securities Suit for Court OK ---------------------------------------------------------- Alnylam Pharmaceuticals, Inc. disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that the company is currently negotiating a settlement with regards to a securities suit filed in the Supreme Court of the State of New York. On September 12, 2019, the Chester County Employees Retirement Fund, individually and on behalf of all others similarly situated, filed a purported securities class action complaint for violation of federal securities laws against us, certain of our current and former directors and officers, and the underwriters of our November 14, 2017 public stock offering, in the Supreme Court of the State of New York, New York County. On November 7, 2019, plaintiff filed an amended complaint, or the New York Complaint. The New York Complaint is brought on behalf of an alleged class of those who purchased our securities pursuant and/or traceable to its November 14, 2017 public stock offering. The New York Complaint purports to allege claims arising under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933, as amended, and generally alleges that the defendants violated the federal securities laws by, among other things, making material misstatements or omissions concerning the results of its "Apollo" Phase 3 clinical trial of "patisiran." The plaintiff seeks, among other things, the designation of the action as a class action, an award of unspecified compensatory damages, rescissory damages, interest, costs and expenses, including counsel fees and expert fees, and other relief as the court deems appropriate. All defendants filed a joint motion to dismiss the New York Complaint in its entirety on December 20, 2019. On November 2, 2020, the Supreme Court of the State of New York entered a Decision and Order denying defendants' motion to dismiss. In November 2020, defendants filed a notice of appeal of the Supreme Court's decision to the Appellate Division of the Supreme Court of the State of New York for the First Department. In April 2021, the First Department entered a Decision and Order affirming in part and reversing in part the Supreme Court's decision. In June 2021, defendants filed a motion in the First Department seeking re-argument or, in the alternative, for leave to appeal to the New York Court of Appeals. In August 2021, the parties reached an agreement in principle to resolve the matter. A hearing is scheduled for April 12, 2022 in the Supreme Court of the State of New York regarding final approval of the settlement. Proceedings in the First Department are adjourned until February 2022, subject to further adjournment, pending final approval of any settlement. Alnylam Pharmaceuticals, Inc. commercial-stage biopharmaceutical company based in Massachusetts. AMERICAN GENERAL: More Time for Moriarty to File Reply Sought ------------------------------------------------------------- In the class action lawsuit captioned as Moriarty v. American General Life Insurance Company, et al., Case No. 3:17-cv-01709-BTM-WVG (S.D. Cal.), the Parties ask the Court to enter an order granting their joint motion for additional time for plaintiff Michelle L. Moriarty to file reply papers. Based on the agreement of the parties, the Plaintiff's counsel requests that the Plaintiff be provided permission to file her Reply papers on March 3, 2022, instead of on Monday, February 28, 2022. This would provide Plaintiff the amount of time she would have had to prepare and file her Reply papers had the Defendant filed its papers on February 18, 2022, rather than when they were filed on February 21, 2022. The parties do not request that the hearing date be altered in any fashion or that any other time period for any other filings be altered. American General operates as an insurance company. The Company offers life, travel, annuities, mutual funds, and home loan. A copy of the Parties' motion dated Feb. 23, 2021 is available from PacerMonitor.com at https://bit.ly/3HzBZZn at no extra charge.[CC] The Plaintiff is represented by: Craig M. Nicholas, Esq. Alex M. Tomasevic, Esq. NICHOLAS & TOMASEVIC, LLP 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 325-0492 Facsimile: (619) 325-0496 E-mail: cnicholas@nicholaslaw.org atomasevic@nicholaslaw.org - and - Jack B. Winters, Jr., Esq. Georg M. Capielo, Esq. WINTERS & ASSOCIATES Sarah Ball (SBN 292337) 8489 La Mesa Blvd. La Mesa, CA 91942 Telephone: (619) 234-9000 Facsimile: (619) 750-0413 E-mail: jackbwinters@earthlink.net gcapielo@einsurelaw.com sball@einsurelaw.com The Attorneys for American General Life Insurance Company, are: Thomas J. Butler, Esq. Michael D. Mulvaney, Esq. Christopher C. Frost, Esq. MAYNARD COOPER & GALE LLP 1901 Sixth Ave. North, Ste. 2400 Birmingham, AL 35203 Telephone: (205) 254-1000 Facsimile: (205) 254-1999 E-mail: tbutler@maynardcooper.com mmulvaney@maynardcooper.com cfrost@maynardcooper.com - and - Nicholas J. Boos, Esq. MAYNARD, COOPER & GALE LLP 600 Montgomery St., Ste. 2600 San Francisco, CA 94111 Telephone: (415) 646-4700 Facsimile: (205) 254-1999 E-mail: tblake@maynardcooper.com nboos@maynardcooper.com - and - David J. Noonan, Esq. NOONAN LANCE BOYER & BANACH LLP 701 Island Ave., Ste. 400 San Diego, CA 92101 Telephone: (619) 780-0880 Facsimile: (619) 780-0877 E-mail: dnoonan@noonanlance.com ANHEUSER-BUSCH LLC: Moves to Strike Allegations Seeking Class Cert ------------------------------------------------------------------- In the class action lawsuit captioned as JULIE GLENNON and THOMAS E. OVERBY, JR., individually and on behalf of all others similarly situated, v. ANHEUSER-BUSCH, LLC, Case No. 4:21-cv-00141-AWA-DEM (E.D. Va.), the Defendant asks the Court to enter an order, pursuant to Rule 23(d)(1)(D), requiring the Plaintiffs to amend their Complaint to remove all allegations seeking class certification under Rule 23 for their second, third, and fourth causes of action. In addition to asserting a single claim against A-B under the FLSA, the Plaintiffs invoke Rule 23(a) and (b)(3) in seeking remedies under the Wage Payment Act (Va. Code section 40.1-29(J)) on a class-wide basis for alleged state law violations. However, the Wage Payment Act limits representative actions to opt-in collective actions consistent with the collective action mechanism found in the Fair Labor Standards Act (FLSA). As explained in the memorandum filed herewith, applying the two-step analysis derived from Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance, theNamed Plaintiffs' state law claims may only proceed as a putative opt-in collective action in the same fashion as their FLSA claim, the Defendant contends. Anheuser-Busch is an American brewing company headquartered in St. Louis, Missouri. Since 2008, it has been a wholly owned subsidiary of Anheuser-Busch InBev which also has its North American regional management headquarters in St. Louis. A copy of the Defendant's motion dated Feb. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3IHtxbY at no extra charge.[CC] The Defendant is represented by: Robert G. Lian, Jr., Esq. Joshua K. Sekoski, Esq. Katherine I. Heise, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 2001 K Street N.W. Washington, D.C. 20006 Telephone: (202) 887-4000 Facsimile: (202) 887-4288 E-mail: blian@akingump.com jsekoski@akingump.com kheise@akingump.com ARISE VIRTUAL: Bell Suit Stayed Pending Arbitration --------------------------------------------------- In the class action lawsuit captioned as DONNA BELL, INDIVIDUALLY AND ON BEHALF OF SIMILARLY SITUATED INDIVIDUALS, v. ARISE VIRTUAL SOLUTIONS, INC., Case No. 4:21-cv-00538-RK (W.D. Mo.), the Hon. Judge Roseann A. Ketchmark entered an order that: (1) The Defendant Arise's Motion to Compel Arbitration is granted and Plaintiff Bell's claims are stayed pending arbitration, and (2) Plaintiff Bell's Motion for Conditional Class Certification pursuant to 29 U.S.C. setion 216(b) is denied as moot. The Court, "Because the Court finds Plaintiff Bell must arbitrate her claims against Defendant Arise, the Plaintiff Bell's motion for conditional certification is denied as moot. In a Complaint filed July 27, 2021, the Plaintiff alleges the Defendant Arise misclassified Plaintiff and other "Customer Support Professionals" as independent contractors when in reality, under federal law, they are employees of Defendant. The Plaintiff alleges she and other Customer Support Professionals work from their homes or other remote locations and provide customer service for Defendant's clients by telephone. By classifying Customer Support Professionals like Plaintiff as "Independent Business Owners” or agents of Independent Business Owners, Bell alleges Defendant Arise unlawfully avoids paying them minimum wage, requires them to pay for training and other necessary expenses to perform their work, and does not pay them for extensive training time. Arise Virtual provides business process outsourcing and consulting services. A copy of the Court's order dated Feb. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3MjOfkk at no extra charge.[CC] AUTO-OWNERS INSURANCE: MSP Suit Seeks to Certify Rule 23 Classes ---------------------------------------------------------------- In the class action lawsuit captioned as MSP RECOVERY CLAIMS, SERIES LLC, and MSP RECOVERY CLAIMS SERIES 44, LLC v. AUTO-OWNERS INSURANCE COMPANY, SOUTHERN-OWNERS INSURANCE COMPANY, and OWNERS INSURANCE COMPANY, Case No. 1:17-cv-23841-PAS (S.D. Fla.), the Plaintiffs ask the Court to enter an order certifying their proposed Classes under Federal Rule of Civil Procedure 23: -- The No-Fault Class "All MAOs and downstream entities that provide benefits under Medicare Part C, in the United States of America and its territories, who made conditional payments as secondary payers for automobile accident-related medical items and services on behalf of their beneficiaries who also had first-party insurance coverage, such as no-fault and medical payments insurance coverage, with the Defendants;" and -- The Settlement Class "All MAOs and downstream entities that provide benefits under Medicare Part C, in the United States of America and its territories, who made conditional payments as secondary payers for medical items and services on behalf of their beneficiaries who also had third-party insurance coverage, such as bodily injury insurance coverage, with the Defendants." This class action is brought on behalf of MAOs and downstream entities that have made conditional payments for automobile-accident medical claims -- or in settlement of those claims -- on behalf of their Medicare beneficiaries who also had insurance coverage with Defendants. These conditional payments made by MAOs are conditioned on reimbursement by a primary plan. The Defendants' routine failure to reimburse MAOs and downstream entities for these payments is not surprising because Defendants did not have any policy in place to preserve or protect Medicare Advantage liens until 2017. After that, the Defendants paid mere lip service to their obligations, and the exemplars show it. By their own admission, consistently and uniformly failed to protect downstream Medicare Advantage liens until 2021, which warrants certification of this class action. Auto-Owners Insurance Group is a mutual insurance company that provides life, home, car and business insurance. Their policies are sold exclusively through local, independent insurance agents within their 26 operating states. A copy of the Plaintiffs' motion dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3K72RSe at no extra charge.[CC] The Plaintiffs are represented by: Andres Rivero, Esq. Amanda McGovern, Esq. Alan H. Rolnick, Esq. David L. Daponte, Esq. RIVERO MESTRE LLP 2525 Ponce de Leon Blvd., Suite 1000 Miami, Florida 33134 Telephone: (305) 445-2500 Facsimile: (305) 445-2505 E-mail: arivero@riveromestre.com amcgovern@riveromestre.com arolnick@riveromestre.com ddaponte@riveromestre.com npuentes@riveromestre.com - and - Francesco Zincone, Esq. Eduardo Bertran Esq. J. Alfredo Armas, Esq. ARMAS BERTRAN PIERI 4960 S.W. 72nd Avenue, Suite 206 Miami, FL 33155 Telephone: (305) 461-5100 Facsimile: (786) 221-2903 E-mail: fzincone@armaslaw.com ebertran@armaslaw.com alfred@armaslaw.com - and - John H. Ruiz, Esq. Charles E. Whorton MSP RECOVERY LAW FIRM 2701 S. LeJeune Road, 10th Floor Coral Gables, FL 33134 Telephone: (305) 614-2222 E-mail: cwhorton@msprecoverylawfirm.com jruiz@msprecovery.com BEACH HOUSE: Court Extends Discovery in Nygaard Suit ---------------------------------------------------- In the class action lawsuit captioned as Nygaard, et al., v. Beach House Hospitality Group LLC, et al., Case No. 4:20-cv-00233-JD (D.S.C.), the Plaintiff asks the Court to enter an order: 1. The Defendants be ordered to comply fully with this court's order within twenty-four hours of receiving an order from this court; and 2. Based on the time between Plaintiffs' motion and the court's order, the court amends the Scheduling Order by granting Plaintiffs additional time, 90 days, for Discovery, from the date that they receive the information sought in the Motion to Compel. The Plaintiffs filed their Motion to Compel requiring the Defendants to identify the remaining servers and bartenders in the Putative Class. On February 9, this court granted Plaintiffs' motion. The Plaintiffs had noted that during the process to comply with this court's order granting Conditional Certification, Defendants had emailed the Third-Party Administrator (TPA) the precise information Plaintiffs are now seeking. This court granted Plaintiffs' Motion to Compel; however, it omitted giving a deadline by which the Defendants were to comply. The court also did not address Plaintiffs' request for a sanction, by extending the deadlines of the current Scheduling Order by 90 days. Beach House is a full-service restaurants limited liability partnership. A copy of the Plaintiff's motion dated Feb. 21, 2021 is available from PacerMonitor.com at https://bit.ly/35ipYuc at no extra charge.[CC] The Plaintiffs are represented by: Bruce E. Miller, Esq. BRUCE E. MILLER, P.A. 147 Wappoo Creek Drive, Suite 603 Charleston, SC 29412 Telephone: (843) 579-7373 Facsimile: (843) 614-6417 E-mail: bmiller@brucemillerlaw.com BEACH HOUSE: Seeks Reconsideration of Portion of Feb. 9 Court Order ------------------------------------------------------------------- In the class action lawsuit captioned as Holly Nygaard and Quanell Gee, on behalf of themselves and all other similarly situated, v. Beach House Hospitality Group, LLC d/b/a Beach House Bar and Grill; Erez Sukarchi individually, Case No. 4:20-cv-00233-JD (D.S.C.), the Defendants ask the Court reconsider that portion of the Court's February 9, 2022 Order granting Plaintiffs' Motion to Compel and enter an order either reversing, altering, or amending that portion of the Court's Order. In the alternative, the Defendants request the Court enter a protective order limiting communications with the remaining putative plaintiffs to communications with Plaintiffs' counsel. A copy of the Defendants' motion dated Feb. 23, 2021 is available from PacerMonitor.com at https://bit.ly/34efU5a at no extra charge.[CC] The Defendants are represented by: Benjamin A. Baroody, Esq. Holly M. Lusk, Esq. BELLAMY, RUTENBERG, COPELAND, EPPS, GRAVELY & BOWERS, P.A. Post Office Box 357 Myrtle Beach, SC 29578-0357 Telephone: (843) 448-2400 Facsimile: (843) 448-3022 E-mail: bbaroody@bellamylaw.com hlusk@bellamylaw.com BEAUNIQ LLC: CMP, Scheduling Order Entered in Tavarez Class Suit ---------------------------------------------------------------- In the class action lawsuit captioned as VICTORIANO TAVAREZ, Individually, and On Behalf of All Others Similarly Situated, v. BEAUNIQ LLC, Case No. 1:21-cv-09792-JMF (S.D.N.Y.), the Hon. Judge entered a civil case management plan and scheduling order as follows: -- Any motion to amend or to join March 24, 2022 additional parties shall be filed no later than: -- Initial disclosures pursuant to March 8, 2022 Fed. R. Civ. P. 26(a)(1) shall be completed no later than than: -- All fact discovery shall be completed May 22, 2022 no later than: -- All expert discovery, including May 22, 2022 reports, production of underlying documents, and depositions, shall be completed no later than: -- Initial requests for production of March 24, 2022 documents shall be served by: -- The Plaintiff shall file a motion July 22, 2022 for class certification no later than: -- Any opposition shall be filed by: August 23, 2022 -- Any reply shall be filed by: September 22, 2022 -- The next pretrial conference is June 27, 2022 scheduled for: A copy of the Court's order dated Feb. 23, 2021 is available from PacerMonitor.com at https://bit.ly/3Mn31qK at no extra charge.[CC] BEKAERT CORP: Not Entitled to Discovery of Absent Class Members --------------------------------------------------------------- In the case, COLIN WALKER, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff v. BEKAERT CORPORATION, Defendant, Case No. 5:21-CV-01468-BMB (N.D. Ohio), Magistrate Judge Carmen E. Henderson of the U.S. District Court for the Northern District of Ohio, Eastern Division, sustained the Plaintiff's objection to the Defendant's "targeted" interrogatories, naming Michael Matheny and Aaron Friedman as people with knowledge of the case. As current or former hourly employees of the Defendant, Matheny and Friedman are both absent class members. Judge Henderson concludes that the Defendant did not meet the heavy burden required to justify discovery from the absent class members. Hence, the Defendant is not entitled to discovery of absent class members. The case is before the Court on the Plaintiff's Notice of Discovery Dispute. The case was referred to Judge Henderson for resolution of the discovery dispute. The Plaintiff filed a Fair Labor Standards Act class action against the Defendant for allegedly failing to pay employees all hours of work. The parties are currently attempting to certify a class. The dispute arose after the named Plaintiff answered the Defendant's "targeted" interrogatories, naming Michael Matheny and Aaron Friedman as people with knowledge of the case. The named Plaintiff also indicated that he had conversations with Matheny about the lawsuit and that Matheny also viewed edits made to his start time, complained to his supervisors, and was written up for complaining. As current or former hourly employees of the Defendant, Matheny and Friedman are both absent class members. Based on the information the Plaintiff provided, the Defendant subpoenaed both men, asking for depositions and certain documents. The Plaintiff objected. The Plaintiff argues that the Defendant has not met this heavy burden. Rather than addressing the factors, the Defendant cites case law that it asserts allows for an exception to the general rule for "class members who have also been identified as possessing factual knowledge." The Plaintiff responds that the cases the Defendant relies on are "inapposite -- out of circuit, unpublished, uncited, and distinguishable on the facts." Judge Henderson agrees. She concludes that not only is the case distinguishable from the cases the Defendant relies upon, but also the Defendant fails to meet the necessary factors. The Defendant states that the information is not meant to harass the absent class members, but it failed to explain how the discovery requested is necessary to the determination of class certification or why it could not get the same information from the named Plaintiff. In fact, when asked, the Defendant stated that it wanted to depose Matheny because he was someone who experienced the same time practices as the named Plaintiff and complained about it. This may be true, however, of all the absent class members. This information is not relevant to whether the class should be certified. This information can be -- and has been -- obtained from the named Plaintiff. There has, thus, been no showing of a "particularized need" for the discovery. Additionally, the absent class members here are not represented by counsel. Deposing them would require them to hire counsel, weighing against discovery. Accordingly, the Defendant did not meet the heavy burden required to justify discovery from the absent class members. For her stated reasons, Judge Henderson sustained the Plaintiff's objection. The Defendant is not entitled to discovery of absent class members. A full-text copy of the Court's Feb. 23, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/2p98xd4j from Leagle.com. BENIHANA INC: Class Certification Bid Nixed in Kim Suit ------------------------------------------------------- In the class action lawsuit captioned as YOUNGSUK KIM, an individual, and on behalf of other members of the general public similarly situated, v. BENIHANA, INC, a Florida corporation, Case No. 5:19-cv-02196-JWH-KK (C.D. Cal.), the Hon. Judge John W. Holcomb entered an order that: -- The class certification motion is denied, and -- The Maronick motion is denied, and the Forister motion is granted. The Court said, "Kim has not presented a viable damages model. The Court is excluding the Forister Report, which is the only evidence that establishes a damages model. The Class Certification Motion itself acknowledges that its damages model relies exclusively on the Forister Report. Because the Court finds that Kim fails to present a viable damages model, the Court concludes that class certification is not appropriate under Rule 23(b)(3)." The parties are directed to confer forthwith and to file no later 20 than 12:00 noon on March 11, 2022, a Joint Report advising the Court of their proposed case schedule or, if the parties cannot agree, of each party's proposed case schedule and the reasons for disagreement with the other party’s proposal. Benihana is an American restaurant company founded by Hiroaki Aoki in New York City in 1964 and currently based in Aventura, Florida. It owns or franchises 116 Japanese-influenced restaurants around the world, including its flagship Benihana Teppanyaki brand, as well as the Haru and RA Sushi restaurants. A copy of the Court's order dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3puafiJ at no extra charge.[CC] BIG EASY: Court Amends Scheduling Order in Ramos Class Suit ----------------------------------------------------------- In the class action lawsuit captioned as NOE VEGA RAMOS; ANA KAREN VALENZUELA SOTO; JOSE ADRIAN LEYVA; and ANA KAREN QUIROZ, Individually and on Behalf of All Others Similarly Situated Plaintiffs, v. BIG EASY FOODS OF LOUISIANA, L.L.C., and MELCHOR MAYA SOTO, Case No. 2:17-cv-01298-JDC-KK (W.D. La.), the Court entered an order granting the Plaintiffs' unopposed motion to amend scheduling order to allow amended Rule 23 Pleadings and Extend Deadline to file Motion for Class Certification. 1. The Plaintiffs' deadline to file an March 28, 2022 Amended Complaint adding any claims subject to the EEOC's Notices of Right to Sue without leave of the Court is: 2. The Defendants' deadline to file an 30 days answer to any Amended Complaint filed by Plaintiffs is: 3. The Plaintiffs' deadline to file a May 27, 2022 motion for certification of a Rule 23 class is reset to: A copy of the Court's order dated Feb. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3IIlJ9Z at no extra charge.[CC] BOSLEY INC: Class Action Settlement in Hashemi Gets Initial Nod ---------------------------------------------------------------- In the class action lawsuit captioned as Ken Hashemi et al v. Bosley, Inc., Case No. 2:21-cv-00946-PSG-RAO (C.D. Cal.), the Hon. Judge Philip S. Gutierrez entered an order: 1. granting the Plaintiffs' motion for preliminary approval of class action settlement; 2. appointing M. Anderson Berry, Jeffrey S. Goldenberg, David K. Lietz, and Charles E. Schaffer as Class Counsel; 3. appointing the Plaintiffs Hashemi, Altes, Johnson-Foster, Boute, Artime, and Bowden as Class Representatives; 4. appointing CPT as the Settlement Administrator; and 5. approving the proposed class notice and settlement claims forms. The Settlement offers the Class three types of monetary relief capped at a maximum of $500,000 for the Class: (1) reimbursement for ordinary expenses and lost time up to $300 per Class Member; (2) reimbursement for extraordinary expenses up to $5,000 per Class Member; and (3) California Statutory Claim benefits of $50 per California Subclass Member. Class Members will also automatically receive free access to Aura Financial Shield Services for two years following the Court's final approval of the Settlement. This service provides fraud monitoring, home and property title monitoring, and income tax protection and carries a $1 million insurance policy for each subscriber. Assuming the entire Class takes advantage of this service, the estimated cost to Defendant will be approximately $27 million. This case stems from a data breach. In August 2020, cybercriminals gained access to Defendant's computer systems that stored Plaintiffs' personal identifiable information ("PII") -- i.e., Social Security numbers, driver's license numbers, financial account information, medical information, and health insurance information. In early 2021, the Defendant notified over 100,000 individuals who may have had their PII compromised in the data breach and offered them a year of free credit and identity theft monitoring services. Shortly thereafter, the Plaintiffs began filing separate putative class actions against the Defendant, alleging that Defendant did not adequately protect Plaintiffs' PII, provide timely notice to affected individuals, or monitor its network for potential vulnerabilities. A copy of the Civil Minutes -- General dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3C4nT0U at no extra charge.[CC] BOUCHERIE LLC: Gabilly Seeks Final OK of Class Action Settlement ----------------------------------------------------------------- In the class action lawsuit captioned as JULIEN GABILLY and MARIUS ZEMACHE, individually and on behalf of others similarly situated, v. BOUCHERIE LLC, BOUCHERIE PAS LLC, and EMIL STEFKOV, Case No. 1:19-cv-07240-AT (S.D.N.Y.), the Plaintiffs asks the Court to enter an order granting final approval of class action settlement. A copy of the Plaintiffs' motion dated Feb. 23, 2021 is available from PacerMonitor.com at https://bit.ly/3MkQyDA at no extra charge.[CC] The Plaintiffs are represented by: Darren Rumack, Esq. THE KLEIN LAW GROUP P.C. 39 Broadway, Suite 1530, New York, NY 10006 Telephone: (212) 344-9022 Facsimile: (212) 344-0301 BRISTOL-MYERS SQUIBB: Plaintiff Files Amended Complaint ------------------------------------------------------- Bristol-Myers Squibb Company (BMS) disclosed in its Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that an amended complaint was filed by plaintiff after it was dismissed by the court. In September and October 2020, two purported class actions have also been filed that the defendants' agreements to develop and sell fixed-dose combination products for the treatment of HIV, including "Atripla" and "Evotaz," violate antitrust laws. In March 2021, the court dismissed one of the direct purchaser cases and limited the claims of the remaining direct purchaser case to those arising in 2016 or later. However, the court gave plaintiffs leave to amend their complaints, and one plaintiff filed an amended complaint on March 16, 2021. Bristol-Myers Squibb Company is engaged in the discovery, development, licensing, manufacturing, marketing, distribution and sale of biopharmaceutical products based in New York. BUCHANAN, MO: ACH Defendants' Bid for Leave to Amend Answer Nixed ----------------------------------------------------------------- In the class action lawsuit captioned as BRENDA DAVIS, et al., v. BUCHANAN COUNTY, MISSOURI, et al., Case No. 5:17-cv-06058-NKL (W.D. Mo.), the Hon. Judge Nanette K. Laughrey entered an order denying the motion by the ACH Defendants for leave to amend their answer more than three years after the Court-ordered deadline in order to assert "good faith immunity" as an affirmative defense. The Court said, "The ACH Defendants have pointed to "no change in the law, no newly discovered facts, or any other changed circumstance" that would have made the good-faith-immunity defense more viable "after the scheduling deadline for amending pleadings." Because ACH has failed to show good cause, the motion must be denied. The deadline in the Scheduling Order to amend pleadings passed more than three years ago, on November 1, 2018. The ACH Defendants' most recent amended complaint was filed nearly two-and-a-half years ago, on July 23, 2019. The Defendants -- including the ACH Defendants -- filed multiple dispositive motions in mid-2019, in advance of a then-scheduled trial date of August 19, 2019. Still, years after those dispositive motions were not only decided, but also, insofar as they asserted qualified immunity, appealed, and six months after the appellate decision, the ACH Defendants attempt to assert an affirmative defense based on "good faith immunity." A copy of the Court's order dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3htLXB5 at no extra charge.[CC] C.I. LOBSTER: Pagan Class Suit Seeks Conditional Certification -------------------------------------------------------------- In the class action lawsuit captioned as Pagan v. C.I. Lobster Corp., et al., Case No. 1:20-cv-07349-ALC-SDA (S.D.N.Y.), the Plaintiff asks the Court to enter an order directing a pre-motion conference for a motion for conditional certification under the Fair Labor Standards Act (FLSA). The Plaintiffs seek conditional certification of a class of restaurant workers who systematically had their time shaved. The Plaintiffs say that the defendant's own records produced in discovery prove that the workers' time records were routinely altered to reduce their time and lower their pay. The Plaintiff seeks to conditionally certify an FLSA collective action under 29 U.S.C. § 216(b) on behalf of all persons who are or have been employed by Defendants as non-exempt employees in New York from three years prior to this action's filing date through the date of the final disposition of this action ("putative party plaintiffs"), court-facilitated notice of this pending action to allow putative party plaintiffs to opt-in to the action, and production of contact information. A copy of the Plaintiff's letter motion to certify class dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3C9Te2j at no extra charge.[CC] The Plaintiff is represented by: Finn Dusenbery, Esq. OTTINGER LAW ottingerlaw.com 401 Park Avenue South New York, NY 10016 Telephone: (212) 571-2000 535 Mission Street, 14th Fl. San Francisco, CA 94105 Telephone: (415) 262-0096 E-mail: finn@ottingerlaw.com CALMET SERVICES: State Law Claims Remanded Superior Court --------------------------------------------------------- In the class action lawsuit captioned as Genaro Juarez v. Calmet Services, Inc., et al, Case No. 2:21-cv-08922-PA-RAO (C.D. Cal.), the Hon. Judge Percy Anderson entered an order: 1. remanding the state law claims to Los Angeles County Superior Court, Case No. 21STCV33668; 2. denying as moot the parties' second stipulation to continue deadline for filing motion for class certification. The Court said, "Having concluded that Defendants are entitled to judgment on those claims preempted bythe LMRA, the Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claims. The Court further exercises its discretion to remand those claims." The Defendants filed a Motion for Judgment on the Pleadings on December 7, 2021, challenging the sufficiency of some of the claims asserted in the Complaint filed by plaintiff Genaro Juarez on behalf of himself and a putative class of Defendants' employees. In opposing Defendants' Motion, Plaintiff objected to Defendants' Request for Judicial Notice, in which Defendants asked the Court to take judicial notice of two collective bargaining agreements (CBAs) that Defendants assert govern the relationship between Defendants and their employees. In a January 19, 2022 Minute Order, the Court, in an abundance of caution, converted the Motion for Judgment on the Pleadings into a summary judgment motion pursuant to Federal Rule of Civil Procedure 12(d) and provided the parties with an opportunity to file supplemental briefs. The Plaintiff filed his Complaint in Los Angeles County Superior Court on September 12, 2021. The Complaint alleges wage and hour claims on behalf of Plaintiff and a putative class of Defendants' employees for: (1) failure to pay overtime wages pursuant to California Labor Code sections 510, 1194, and 1199; (2) failure to pay minimum wages pursuant to California Labor Code sections 1197 and 1199; (3) failure to provide meal periods pursuant to California Labor Code section 512; (4) failure to provide rest periods pursuant to California Labor Code section 226.7; (5) failure to pay wages upon termination in violation of California Labor Code sections 201, 202, and 203; (6) failure to provide accurate wage statements pursuant to California Labor Code section 226; (7) failure to timely pay wages pursuant to California Labor Code section 204; (8) failure to pay vacation time pursuant to California Labor Code section 227.3; and (9) unfair business practices pursuant to California Business and Professions Code section 17200. Calmet provides recycling services. A copy of the Civil Minutes -- General dated Feb. 18, 2021 is available from PacerMonitor.com at https://bit.ly/3C2XMr6 at no extra charge.[CC] CHEMBIO DIAGNOSTICS: Court Narrows Claims in Securities Class Suit ------------------------------------------------------------------ In the case, In re CHEMBIO DIAGNOSTICS, INC. SECURITIES LITIGATION. Document Relates To: ALL ACTIONS, Consolidated No. 20-CV-2706 (ARR) (PK) (E.D.N.Y.), Judge Allyne R. Ross of the U.S. District Court for the Eastern District of New York granted in part and denied in part the Defendants' motion to dismiss. The Court granted in part and denied only as to the Securities Act Sections 11 and 12(a)(2) claims against the Underwriter Defendants. I. Background During the summer of 2020, four putative class actions were brought against Chembio and several of Chembio's senior executives and directors (collectively "Chembio Defendants"), as well as Robert W. Baird & Co. Inc. and Dougherty & Company LLC, the underwriters of Chembio's May 7, 2020 secondary stock offering (together, the "underwriter defendants") -- Chernysh v. Chembio Diagnostics, Inc., No. 20-CV-2706; Gowen v. Chembio Diagnostics, Inc., No. 20-CV-2758; Bailey v. Chembio Diagnostics, Inc., No. 20-CV-2961; Special Situations Fund III QP, L.P. v. Chembio Diagnostics, Inc., No. 20-CV-3753. These actions claimed violations of the Securities Act of 1933 ("Securities Act") and the Securities Exchange Act of 1934 ("Exchange Act") arising out of the May Offering and Chembio's then-flagship product, a COVID-19 antibody test. On Dec. 29, 2020, Magistrate Judge Arlene R. Lindsay granted the motions to consolidate and appoint lead counsel. The actions were consolidated into the current putative class action. The Consolidated Amended Complaint was filed Feb. 12, 2021. The Complaint identifies two proposed classes: (1) "all persons who purchased Chembio common stock directly in or traceable to the Company's May 7, 2020 offering pursuant to Chembio's Registration Statement and its Prospectus and Prospectus Supplement"; and (2) "all persons who purchased or otherwise acquired Chembio securities on the open market" during the class period, marked as between March 12, 2020 and June 16, 2020. The lead plaintiffs are Special Situations Fund III QP, L.P., Special Situations Cayman Fund, L.P., and Special Situations Private Equity Fund, L.P. (collectively the "Funds"), as well as Municipal Employees' Retirement System of Michigan ("MERS"). Lead plaintiffs MERS and the Funds both allege that they purchased Chembio common stock during the class period and that the Funds collectively purchased 125,000 shares in the May Offering pursuant to the Registration Statement. The Complaint names as Defendants Chembio; the underwriter defendants; Mr. Eberly, Ms. Page, Mr. Esfandiari (Chembio's Executive Vice President and Chief Science and Technology Officer), and Mr. Goldman (Chembio's Executive Vice President and Chief Financial Officer) (collectively "officer defendants"); and three Chembio directors ("director defendants"). The Plaintiffs assert five causes of action: 1. Count I under Section 11 of the Securities Act against Chembio, the director defendants, and the underwriter defendants, as well as defendants Ms. Page and Mr. Goldman. 2. Count II under Section 12(a)(2) of the Securities Act against the same defendants. 3. Count III under Section 15 of the Securities Act against the director defendants, as well as defendants Ms. Page and Mr. Goldman. 4. Count IV under Section 10(b) of the Exchange Act and Rule 10b-5 against Chembio, the officer defendants, and the director defendants. 5. Count V under Section 20(a) of the Exchange Act against the officer defendants. The Defendants moved to dismiss the Complaint pursuant to Rules 9(b), and 12(b)(6) of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. Section 78u-4, et seq. They argue that the Complaint fails to state a claim. II. Discussion A. Documents Considered. The parties dispute whether Judge Ross may consider the numerous documents attached to the Defendants' Motion to Dismiss. In ruling on a motion to dismiss a securities suit, she may look beyond the complaint and its attachments to documents incorporated into the complaint by reference, public disclosure documents filed with the Securities and Exchange Commission ("SEC"), and "documents that the Plaintiffs either possessed or knew about and upon which they relied in bringing the suit." A document is incorporated by reference if the complaint "makes a clear, definite and substantial reference to the documents." "Limited quotation does not constitute incorporation by reference." The Defendants attached 12 exhibits to their Motion to Dismiss. Exhibits A through C are the communications from the FDA to Chembio regarding its EUA for the Test. Exhibits D, J, and K are Chembio's routine public filings with the SEC. Exhibit E is a filing with the SEC regarding the May Offering, and Exhibit F is Chembio's Registration Statement, effective Oct. 3, 2018. Exhibits G through I are documents produced by Chembio: A March 12, 2020 press release, and transcripts of earnings calls with investors on March 12, 2020 and May 4, 2020. Judge Ross will consider Exhibits B through G, and I through K in deciding the Defendants' Motion to Dismiss. She says, the Plaintiffs clearly relied in massive part on Exhibit B -- the May 22, 2020 email from the FDA to Chembio -- in writing the Complaint; the email is the cornerstone of the Plaintiffs' factual narrative and is referenced throughout the pleading. Exhibit C -- the June 17, 2020 letter revoking the EUA -- is also referenced throughout. Exhibits D-F, J, and K are public filings with the SEC of which Judge Ross can take judicial notice. And Exhibits G and I are significantly quoted in the Complaint, so have been incorporated by reference. Judge Ross cannot, however, consider Exhibits A and H. Exhibit A -- the letter from the FDA granting the EUA for the Test -- is not specifically or substantially referenced in the complaint and was not obviously relied upon by the Plaintiffs in drafting the complaint. The Plaintiffs only briefly quote Exhibit H -- the transcript of the March earnings call -- in the Complaint, so the document is not incorporated by reference. Furthermore, neither document is publicly available in a manner that would allow the Court to take judicial notice. B. Claims Under Exchange Act Section 10(b) and Rule 10b-5. Exchange Act Class Plaintiffs allege that the Chembio Defendants violated Section 10(b) of the Exchange Act and Rule 10b-5—the SEC's implementing rule, 17 C.F.R. 240.10b-5 -- by "disseminating or approving false statements, which they knew or recklessly disregarded were misleading in that they contained misrepresentations and failed to disclose material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading." These statements include those made in the Registration Statement for the May Offering, as well as public disclosures -- in press releases and conference calls -- made after the April 29 call. The Defendants respond, inter alia, that the Plaintiffs have failed to establish the scienter element required to succeed on their Exchange Act claims. Judge Ross finds that the Plaintiffs fail to plead scienter for all statements at issue. The Plaintiffs cite nothing more concrete to support that officer and director defendants, who either made or signed the Registration Statement containing the statements at issue, knew about the contradictory data. They have not sufficiently pleaded an individual whose scienter can be imputed to Chembio. Ultimately, the Plaintiffs have not persuasively alleged with sufficient specificity an inference of fraudulent intent that is at least as compelling as competing inferences of non-fraudulent intent. Judge Ross therefore does not need to reach the other elements of the Plaintiffs' Section 10(b) claim, which she dismisses. C. Claims Under Securities Act Sections 11 and 12(a)(2) The Securities Act Class Plaintiffs allege that Chembio, the underwriter defendants, Ms. Page, Mr. Goldman, and the director defendants violated Sections 11 and 12(a)(2) of the Securities Act. These provisions impose liability on those involved in preparing and publishing an offering's registration statement and prospectus, including all signatories, for untrue statements of material fact or misleading omissions contained in those documents. Issuers, like Chembio, "are subject to 'virtually absolute' liability" while Sections 11 and 12 hold other defendants potentially liable for negligence. Ms. Page, Mr. Goldman, and the director defendants are named as signers of the Registration Statement. The underwriter defendants are named for their alleged role in preparing the Registration Statement. Judge Ross denied the motion to dismiss the Securities Act claims against the underwriter defendants. She says, the appropriate pleading standard for the claims against the named Chembio defendants is fraud, while the standard for the claims against the underwriter defendants is negligence. Because she has already found -- in connection with the Plaintiffs' Section 10(b) Exchange Act claim -- that based on insufficiently alleged scienter, the statements in the Registration Statement and the Prospectus do not support a compelling inference of fraud, Judge Ross granted the Defendants' motion as to the Chembio defendants. She also finds that the Plaintiffs have sufficiently pleaded an actionable failure to disclose under Item 105. This contradictory data clearly cast doubt on the future of the EUA. Accordingly, the Registration Statement did not disclose one of the most significant risks to Chembio's business: The potential loss of sales and marketing authorization in the United States for their flagship product. D. The Control Person Claims Are Dismissed. Section 15 of the Securities Act and Section 20 of the Exchange Act both impose liability on entities or individuals who "controlled" those responsible for primary violations under their respective statutes. As Judge Ross has already found that the Plaintiffs have failed to allege a primary violation by any of the Chembio defendants, she says, there is no eligible primary violation to support a Section 15 or Section 20(a) claim. The motion to dismiss is granted on both claims. III. Conclusion The Court dismissed the Plaintiffs' Securities Act claims dismissed except as to the underwriter defendants. The Plaintiffs' Exchange Act claims are dismissed in full. The Plaintiffs request leave to amend. Judge Ross granted the Plaintiffs leave to replead their Securities Act claims, but not their Exchange Act claims. When claims are dismissed for failure to state a claim, it is customary to grant leave to replead unless to do so would be futile. Repleading would be futile where, inter alia, the problems with the complaint are substantive. In the case, the problems with the Exchange Act claims are not of pleading, but of substance. The Plaintiffs' Exchange Act claims hinge on an alleged knowledge of a risk, not a knowledge of a certainty. The Plaintiffs have not identified how repleading would allow them to remedy this scienter deficiency and Judge Ross is not persuaded that repleading could do so. The Plaintiffs' Exchange Act claims are therefore dismissed with prejudice. The Plaintiffs' Securities Act claims against Chembio, the director defendants, Ms. Page, and Mr. Goldman are dismissed without prejudice as to repleading within 14 days. A full-text copy of the Court's Feb. 23, 2022 Opinion & Order is available at https://tinyurl.com/2xxa9tk2 from Leagle.com. CHEROKEE COUNTY, NC: Ct. Awards Hogan $1.7 MM Attorneys' Fees ------------------------------------------------------------- In the class action lawsuit captioned as Hogan v. Cherokee County, et al., Case No. 1:18-cv-00096-MR-WCM (WDNC), the Hon. Judge Martin Reidinger entered an order granting the Plaintiffs' application for attorneys' fees as follows: (1) The Plaintiffs are awarded $1,789,290.00 in attorneys' fees and $5,015.56 in expenses pursuant to 42 U.S.C. section 1988; and (2) Attorney Joy McIver is hereby awarded $48,685.00 in attorneys' fees and $39.00 in expenses pursuant to 42 U.S.C. section 1988 for her services as the guardian ad litem for H.H. in this matter. The Court said, "The Plaintiffs' attorneys achieved an excellent result for their clients. These attorneys also have brought to light issues of public importance in prosecuting this case by exposing an unlawful and unconstitutional practice of removing children from their parents without judicial oversight. The Court realizes that pursuing this case for the Plaintiffs was no small or easy task, and that it required an enormous commitment of time and resources to litigate this case to its ultimate conclusion. The Court further realizes that the award of fees and expenses is substantially less than the award that the Plaintiffs requested. By awarding a reduced fee, the Court in no way intends to minimize counsel's efforts. But the Court is obligated to exercise its discretion and ensure that any fee awarded under § 1988 be reasonable. The Court finds and concludes that the award of $1,789,290.00 in fees and $5,015.56 in expenses adequately compensates the Plaintiffs' attorneys for the number of hours reasonably expended in this case." This action arises out of the Defendants' use of an extra-judicial custody agreement that resulted in the wrongful removal of Plaintiff H.H. from the custody of her father, Plaintiff Brian Hogan. The Plaintiffs filed a putative class action complaint, asserting claims pursuant to 42 U.S.C. section 1983 for the deprivation of their procedural and substantive due process rights, as well as various state law claims. The Plaintiffs subsequently withdrew their request for class certification. At the summary judgment stage, the Court dismissed a number of the Plaintiffs' state law claims. The Plaintiffs are BRIAN HOGAN, both on his own behalf and as representative of all unnamed class members who are similarly situated; BRIAN HOGAN, as parent and next friend of H.H., both on her own behalf and as representative of all unnamed class members who are similarly situated. The Defendants are CHEROKEE COUNTY; CHEROKEE COUNTY DEPARTMENT OF SOCIAL SERVICES; SCOTT LINDSAY, both in his individual capacity and official capacity as attorney for Cherokee County Department of Social Services; CINDY PALMER, in both her individual capacity and her official capacity as Director of Cherokee County Department of Social Services; DSS SUPERVISOR DOE No. 1; and DSS SOCIAL WORKER DOE No. 1. A copy of the Court's order dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3K8FDuV at no extra charge.[CC] CLEANSPARK INC: Faces Investor Suit Over Undisclosed Finances ------------------------------------------------------------- CleanSpark, Inc. disclosed in its Form 10-Q Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that it is facing a class action complaint in the United States District Court for the Southern District of New York over alleged omissions filed in its financial reporting. On January 20, 2021, Scott Bishins, individually, and on behalf of all others similarly situated, filed a class action complaint in the United States District Court for the Southern District of New York against the Company, its Chief Executive Officer, Zachary Bradford, and its Chief Financial Officer, Lori Love. The class complaint alleges that, between December 31, 2020 and January 14, 2021, the CleanSpark, Bradford, and Love "failed to disclose to investors that the company had overstated its customer and contract figures, that several of the company's recent acquisitions involved undisclosed related party transactions and that, as a result of the foregoing, Defendants' positive statements about the company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis." The class complaint seeks an award of compensatory damages and an award of reasonable costs and expenses incurred in the litigation. To date, no class has been certified in the class action. On December 2, 2021, the Court appointed Darshan Hasthantra as lead Plaintiff, and Glancy, Prongay and Murray LLP as class counsel. Hasthantra now has until February 14, 2022, to file an amended complaint, and the company is permitted to file its Motion to Dismiss by April 14, 2022. CleanSpark, Inc. is into bitcoin mining and is a diversified energy company based in Nevada. COLORADO: More Time to Reply to Class Cert. Response Sought ----------------------------------------------------------- In the class action lawsuit captioned as A.A. by and through his grandmother, G.A.; B.B. by and through her mother, P.B., and; C.C. by and through her mother, P.C.; individually and on behalf of a class, v. KIM BIMESTEFER, in her official capacity as Executive Director of the Colorado Department of Health Care Policy and Financing, Case No. 1:21-cv-02381-RMR-STV (D. Colo), the Plaintiffs ask the Court to enter an order granting an extension of time to Reply to Defendant's Response to the Plaintiffs' motion for class certification by 21 days, to and including March 25, 2022 and seek leave of Court to file a reply to the Defendant's Response to Plaintiffs' motion for class certification in excess of the page limit -- up to 30 pages in length. On February 11, 2022, the Defendant filed a 30 page Response to Plaintiffs' Motion for Class Certification and Plaintiffs' Reply is due March 4, 2022. No previous extensions to Reply to Defendant's Response to Class Certification have been sought. The Colorado Department of Health Care Policy and Financing is the principal department of the Colorado state government responsible for administering the Medicaid and Child Health Plan Plus programs as well as a variety of other programs for Colorado's low-income families, the elderly, and persons with disabilities. A copy of the Plaintiffs' motion dated Feb. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3MkUF2J at no extra charge.[CC] The Plaintiffs are represented by: Robert H. Farley, Jr. ROBERT H. FARLEY, JR., LTD. 1155 S. Washington St., Suite 201 Naperville, IL 60540 Telephone: (630) 369-0103 E-mail: farleylaw@aol.com - and - Jane Perkins, Esq. Kim Lewis, Esq. NATIONAL HEALTH LAW PROGRAM 1512 E. Franklin St., Ste. 110 Chapel Hill, NC 27514 Telephone: (919) 968-6308 E-mail: perkins@healthlaw.org lewis@healthlaw.org COMPREHENSIVE HEALTHCARE: Blair Suit Seeks Class Certification -------------------------------------------------------------- In the class action lawsuit captioned as ERIK BLAIR, on behalf of himself and similarly situated employees, v. COMPREHENSIVE HEALTHCARE MANAGEMENT SERVICES, LLC, ET AL., Case No. 2:18-cv-00254-WSS (W.D. Pa.), the Plaintiff asks the Court to enter an order granting class certification under Rule 23(a) and 23(b)(3). The Plaintiffs propose the following class definition: "All hourly employees who (i) worked at any of Defendants' facilities in Western Pennsylvania between August 9, 2015 and June 30, 2019 and (ii) are identified in the Veytsman report as purportedly having been underpaid for the non-overtime hours that were logged in Defendants' timekeeping system." In this wage-and-hour action, the Plaintiffs allege that certain compensation policies implemented by Defendants at each of their fifteen nursing homes and/or assisted living facilities in the Western Pennsylvania caused the Defendants' hourly employees to be paid for fewer non-overtime hours than they in fact worked and which were recorded in Defendants' authoritative timekeeping records. After substantial discovery, the evidence shows that, as a result of these compensation policies, more than 2,800 hourly employees were paid for fewer non-overtime hours than they worked and recorded. The Plaintiffs, on behalf of themselves and similarly situated current and former employees of Defendants, seek to recover, on a class-wide basis, unlawfully withheld non-overtime wages for work Plaintiffs and all other similarly situated hourly workers performed, as recorded in Defendants' timekeeping system. Between August 9, 2015, and June 30, 2019, more than 2,800 hourly employees of Defendants were paid for fewer non-overtime hours than they in fact worked and that were recorded in Defendants' authoritative timekeeping system. Comprehensive Healthcare is a private company. The company currently specializes in the Hospital & Health Care area. A copy of the Plaintiff's motion to certify class dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/344P7YO at no extra charge.[CC] The Plaintiffs are represented by: Joseph H. Chivers THE EMPLOYMENT RIGHTS GROUP, LLC First & Market Building 100 First Avenue, Suite 650 Pittsburgh, PA 15222 Telephone: (412) 227-0763 Facsimile: (412) 774-1994 E-mail: jchivers@employmentrightsgroup.com - and - John R. Linkosky, Esq. LINK LAW 715 Washington Avenue Carnegie, PA 15106-4107 Telephone: (412) 278-1280 E-mail: linklaw@comcast.net - and - Jeffrey W. Chivers, Esq. Theodore I. Rostow, Esq. CHIVERS LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (718) 210-9825 E-mail: jwc@chivers.com tir@chivers.com CONSTELLATION NETWORK: Order Scheduling Trial & Pretrial Entered ---------------------------------------------------------------- In the class action lawsuit captioned as Bradley Morgan, et al., v. CONSTELLATION NETWORK, INC., et al., Case No. 4:21-cv-08869-JSW (N.D. Cal.), the Hon. Judge entered an order scheduling trial and pretrial matters as follows: -- Class Certification Motion Hearing: July 21, 2023 -- Dispositive Motions Hearing: Dec. 15, 2023 Constellation Network provides cybersecurity for big data. A copy of the Court's order dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3prmfkP at no extra charge.[CC] CORTEVA AFFILIATES: Faces Water Contamination Suit Caused by PFAS ----------------------------------------------------------------- Corteva, Inc. disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that a class action lawsuit was filed asserting claims for medical monitoring and property damage. As of December 31, 2021, several actions are pending in federal court against E.I. du Pont de Nemours and Company and its spin-off Chemours Co., consolidated subsidiaries of Corteva, relating to toxic discharges from the Fayetteville Works facility where one of these is a consolidated putative class action that asserts claims for medical monitoring and property damage on behalf of putative classes of property owners and residents in areas near or who draw drinking water from the Cape Fear River. Plaintiffs seek compensatory and punitive damages for their claims of private nuisance, trespass, and negligence allegedly caused by release of polyfluoroalkyl substances (PFAS). Corteva, Inc. is a provider of seed and crop protection solutions based in Indiana. CRACKER BARREL: Amended Bid for Conditional Certification Sought ---------------------------------------------------------------- In the class action lawsuit captioned as Andrew Harrington; Katie Liammaytry; Jason Lenchert, individually and behalf of themselves and all other persons similarly situated, v. Cracker Barrel Old Country Store, Inc., Case No. 2:21-cv-00940-DJH (D. Ariz.), the Plaintiffs ask the Court to enter an order: 1. conditionally certifying this lawsuit as a collective action under the Fair Labor Standards Act (FLSA); 2. authorizing them to mail, email, text, and post notices to potential class members; 3. approving the Proposed Notice and Consent to Join forms; and 4. requiring that, within 21 days of the Court's ruling on this Motion, Defendant produce the names, mailing addresses, email addresses, cell phone numbers, last four digits of social security numbers, and dates of employment of all current and former servers who worked for the company from February 23, 2019 to the present and worked in a state where Cracker Barrel paid them less than minimum wage and/or took a tip credit. This case is about Cracker Barrel violating the FLSA by: -- failing to pay servers minimum wage for work performed on non-tipped duties that exceeded 20% of their work time and/or for any non-tipped duties unrelated to their occupation as servers; -- failing to timely inform its servers of the 29 U.S.C. section 203(m) notification requirements (i.e. the 15 amount of the tip credit it would be taking, that the tip credit claimed cannot exceed the amount of tips actually received by the employee, and that all tips received by the employee 18 are to be retained by the employee); and -- requiring or allowing servers to work off-the-clock. Making matters worse, at a time when the nation was suffering the ravages of COVID-19, Cracker Barrel amplified its servers' suffering by increasing their non-tipped duties and eliminating a night maintenance position, the lawsuit says. The Plaintiffs have filed a collective action under 29 U.S.C. section 216(b) et seq., to recover damages owed. Due to the uniform nature of Cracker Barrel's willful violations, the proposed class is all servers who worked for Cracker Barrel in states where it attempts to take a tip credit, under 29 U.S.C. § 203(m), over the last three years, which is the maximum time-period allowed under the law. 29 U.S.C. section 255(a). Cracker Barrel is an American chain of restaurant and gift stores with a Southern country theme. A copy of the Plaintiff's motion to certify class dated Feb. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3Kb6uGM at no extra charge.[CC] The Plaintiffs are represented by: Nitin Sud, Esq. SUD LAW P.C. 6750 West Loop South, Suite 920 Bellaire, TX 77401 Telephone: (832) 623-6420 Facsimile: (832) 304-2552 E-mail: nsud@sudemploymentlaw.com - and - Monika Sud-Devaraj, Esq. LAW OFFICES OF MONIKA SUD-DEVARAJ, PLLC 141 E. Palm Lane, Ste. 100 Phoenix, AZ 85004 Telephone: (602) 234-0782 E-mail: monika@msdlawaz.com The Defendant is represented by: William W. Drury, Esq. Miles M. Masog, Esq. RENAUD COOK DRURY MESAROS, PA One North Central, Suite 900 Phoenix, AZ 85004-4417 E-mail: mmasog@rcdmlaw.com docket@rcdmlaw.com mbango@rcdmlaw.com - and - James M. Coleman, Esq. CONSTANGY, BROOKS, SMITH & PROPHETE, LLP 12500 Fair Lakes Circle, Suite 300 Fairfax, VA 22033-3804 E-mail: jcoleman@constangy.com CREDIT LAW: Ensminger Seeks Extension of Time to Reply ------------------------------------------------------- In the class action lawsuit captioned as MARK ENSMINGER, on behalf of himself and those similarly situated, v. CREDIT LAW CENTER, LLC a/k/a THOMAS ANDREW ADDLEMAN L.L.C., d/b/a CREDIT LAW CENTER and THOMAS ADDLEMAN a/k/a TOM ADDLEMAN, Case No. :2:19-cv-02147-TC/JPO (D. Kan.), the Plaintiff asks the Court to enter an order granting this motion and issuing an Order extending the time for Plaintiff to: (A) file a reply memorandum in support of his motion for class certification, by seven days, up to and including March 2, 2022; and (B) furnish the Court with a complete set of courtesy copies by three (3) business days, up to and including March 7, 2022. On May 11, 2021 Plaintiff filed his motion for class certification. After extended briefing on Defendant's later-filed motion to dismiss and motion to stay, on November 22, 2021 the Court entered an Order setting a briefing schedule on Plaintiff's motion for class certification. That Order was modified by further Order of the Court on January 19, 2022. Credit Law, founded in 2007 and based in Lees Summit, Missouri, is a credit counseling service. A copy of the Court's order dated Feb. 21, 2021 is available from PacerMonitor.com at https://bit.ly/35diHMw at no extra charge.[CC] The Plaintiff is represented by: Matthew S. Robertson, Esq. A.J. Stecklein, Esq. Michael H. Rapp, Esq. STECKLEIN & RAPP CHARTERED 748 Ann Avenue, Suite 101 Kansas City, KS 66101 Telephone: (913) 371-0727 Facsimile: (913) 371-0727 E-mail: aj@kcconsumerlawyer.com mr@kcconsumerlawyer.com msr@kcconsumerlawyer.com - and - Keith J. Keogh, Esq. Gregg M. Barbakoff, Esq. KEOGH LAW, LTD. 55 W. Monroe Street, Suite 3390 Chicago, IL 60603 Telephone: (312) 726-1092 Facsimile: (312) 726-1093 E-mail: keith@keoghlaw.com gbarbakoff@keoghlaw.com CRST INTERNATIONAL: Court Tosses Bids for Class Certification ------------------------------------------------------------- In the class action lawsuit captioned as Curtis Markson, et al. v. CRST International, Inc. et al., Case No. 5:17-cv-01261-SB-SP (C.D. Cal.), the Hon. Judge Stanley Blumenfeld, Jr. entered an order that the Plaintiffs' motion to certify antitrust claims is denied as moot as to Stevens, and as to CRST and CRE, the Court denies both motions on the merits. The Plaintiffs -- four commercial truck drivers who worked for various Defendants -- filed two motions for class certification. The first, related to Plaintiffs' California employment claims, seeks to certify a class of former employees of CRST Expedited, Inc. and a subclass of such employees whose employment ended in a narrower class period or who opted out of the settlement in a related class-action. The second motion, related to Plaintiffs' antitrust claims, seeks to certify a class of drivers who signed certain employment contracts with any of the four non-settling Defendants -- CRST International, Inc. and CRST Expedited, Inc., and Stevens Transport, Inc. -- and, for purposes of Plaintiffs' claim under the Cartwright Act, a subclass of those drivers who resided in California. In their Fourth Amended Complaint, the Plaintiffs allege that (1) trucking including CRST, CRE, and Stevens conspired to restrain compensation among themselves by refusing to hire employees who remain "under contract" with another trucking company; and (2) CRST Expedited, Inc. (CRST Expedited) violated the California Labor Code by deducting certain fees from its employees' pay. CRST is an American freight company based in Cedar Rapids, Iowa. A copy of the Court's order dated Feb. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3vChSaM at no extra charge.[CC] CUYAHOGA COUNTY, OH: Parties Must File Briefs with Affidavits ------------------------------------------------------------- In the class action lawsuit captioned as SHAVANDA BECK, ET AL., v. COUNTY OF CUYAHOGA, Case No. 1:19-cv-00818-CAB (N.D. Ohio), the Hon. Judge Christopher A. Boyko entered an order directing the parties to address the following questions in supplemental cross briefs with supporting affidavits/declarations. 1) Provide a detailed explanation of the Kronos system focused specifically on the following: Who has authority to edit Kronos-logged work hours? When an edit is made in Kronos, does the system require a code or some form of explanation be recorded as to why the edit was made? If so, are those codes/explanations recorded and preserved? 2) Under the CBA, the Union or the Court may waive the time limit for filing a grievance. Since the obligation to pay overtime is an express term of the CBA that may be grieved, is Defendant willing to waive the ten-day time limit for filing a grievance for failure to pay overtime? 3) Is the Kronos system periodically audited for accuracy? 4) Is there a County policy/rule/regulation which provides instructions to those who have the authority to edit Kronos? If so, please provide a copy attached to an affidavit from a person having personal knowledge of the above with an explanation of how this is implemented and enforced. 5) According to the Manager's Guide to Kronos Timekeeper and Self-Service, all edits and comments are to be recorded. Please provide a sample of the actual Kronos records of each of the four named Plaintiffs' time sheets containing any edits of hours worked along with the comments explaining those edits. Cuyahoga County is located in the northeastern part of the U.S. state of Ohio on the southern shore of Lake Erie, across the U.S.-Canada maritime border. A copy of the Court's order dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3sxavPW at no extra charge.[CC] DASCO HME: Scheduling Order Entered in Progressive Health Suit -------------------------------------------------------------- In the class action lawsuit captioned as PROGRESSIVE HEALTH AND REHAB CORP., v. DASCO HME, LLC, Case No. 2:21-cv-00705-SDM-KAJ (S.D. Ohio), the Hon. Judge Sarah D. Morrison entered a scheduling order as follows: -- Any motion to amend the pleadings April 8, 2022 or to join additional parties shall be filed by: -- The motion for class certification Oct. 14, 2022 shall be filed by: -- All discovery shall be completed by: Sept. 16, 2022 -- Any proposed protective order or March 18, 2022 clawback agreement shall be filed with the Court by: -- Settlement: The parties previously exchanged settlement demands and offers but were unable to settle the case. The parties agree to make a good faith effort to settle this case. This matter is referred to a settlement conference in September 2022. The parties understand that this case will be referred to an attorney mediator for a settlement conference in the month following the settlement demand. The Plaintiff alleges that Defendant violated the Telephone Consumer Protection Act ("TCPA") U.S.C. section 227. On or about August 23, 2020 and November 23, 2020, Plaintiff received two faxes on its telephone facsimile machine, without Defendant allegedly obtaining Plaintiff’s prior express invitation or permission. The Plaintiff seeks to certify a nationwide proposed class which includes those allegedly having received the same or similar faxes from Defendant on their telephone facsimile machines without Defendant allegedly obtaining their prior express invitation or permission. Defendant denies the liability claim or that a class can be certified. The Defendant has made a jury demand. A copy of the Court's order dated Feb. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3K92wOM at no extra charge.[CC] DPV TRANSPORTATION: Class Settlement in Briggs Suit Wins Approval ----------------------------------------------------------------- In the case, LIONEL BRIGGS and JAMES ANTWINE, individually and in behalf of all other persons similarly situated, Plaintiffs v. DPV TRANSPORTATION, INC., DPV TRANSPORTATION WORDLWIDE LLC, DANIEL PEREZ, and JOSE PEREZ, jointly and severally, Defendants, Case No. 21-CV-6738 (KMK) (S.D.N.Y.), Judge Kenneth M. Karas of the U.S. District Court for the Southern District of New York granted the Plaintiffs' request for approval of the Parties' Revised Settlement Agreement. I. Background Lionel Briggs and James Antwine brought the putative class action against their former employer, DPV Transportation, Inc. and DPV Transportation Worldwide LLC (together "DPV"), and two managers of DPV, Daniel Perez and Jose Perez, pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. Sections 201, et seq.; the New York Minimum Wage Act, N.Y. LAB. LAW Sections 650, et seq.; Section 191 of the New York Labor Law ("NYLL"), N.Y. LAB. LAW Section 191; and the New York Wage Theft Prevention Act, N.Y. LAB. LAW Sections 195, 198. The Plaintiffs -- with the Defendants' consent -- originally sought approval of the Parties' proposed settlement on Nov. 8, 2021. On Dec. 27, 2021, the Court denied the proposed settlement without prejudice. The Plaintiffs -- again with the Defendants' consent -- have now submitted a revised proposed settlement addressing the Court's concerns. II. Discussion A. Settlement Amount The Court noted that it did not have sufficient information to determine whether the settlement sum was fair and reasonable. The Plaintiffs have now furnished additional information regarding the revised proposed settlement agreement. Under the Revised Settlement Agreement, the Defendants agree to pay a total of $26,000 to resolve the Plaintiffs' claims. Of the Settlement Amount, $8,512.64 will be paid to Antwine, $8,371.36 will be paid to Briggs, and $9,116.00 will be paid to the Plaintiffs' counsel for fees and costs. The Plaintiffs now explain that Antwine worked for the Defendants between May 17, 2021 and July 11, 2021, during which time he worked a total of 569.25 hours at a rate of $25 per hour, with no overtime pay. They calculate that during that eight-week period, Antwine should have been paid overtime wages for 249.25 hours, for a total of $3,115.63 in additional wages. Further, they claim that Antwine is entitled to 100% of that amount as liquidated damages. The Plaintiffs also explain that Briggs worked for the Defendants between May 17, 2021, and July 11, 2021, during which time he worked a total of 516.5 hours at a rate of $25 per hour, with no overtime pay. They calculate that during that eight-week period, Briggs should have been paid overtime wages for 236.5 hours, for a total of $2,956.25 in additional wages. Further, they claim that Briggs is also entitled to 100% of that amount as liquidated damages. In addition to overtime wages and liquidated damages, the Plaintiffs explain that they are owed $50 per workday that the Defendants failed to furnish them with a notice and acknowledgement under New York Labor Law Section 195(1) and $250 per workday (up to the statutory maximum of $5,000) that the Defendants filed to provide them with accurate weekly wage statements under New York Labor Law Section 195(3). The Plaintiffs represent that Antwine worked 39 days for Defendants and Briggs worked 41 days; as such, the Plaintiffs calculate that Antwine is owed $1,950 for failure to provide a notice and acknowledgement and $5,000 for failure to provide wage statements and Briggs is owed $2,050 for failure to provide a notice and acknowledgement and $5,000 for failure to provide wage statements. Based on the above, the Plaintiffs represent that Antwine is owed a total of $13,181.25 and Briggs is owed a total of $12,962.50. Assuming the Plaintiffs were awarded the full amount to which they represent they are owed at a joint trial -- $26,143.75 -- Antwine would thus be entitled to 50.42% of the award and Briggs would be entitled to 49.58%. As such, to arrive at Antwine and Briggs's respective settlement amounts, the Plaintiffs simply applied these percentages to the portion of the negotiated Settlement Amount that remained after deducting attorneys' fees and costs. Judge Karas opines that the detailed explanation is sufficient to convince the Court that the Settlement Amount is fair and reasonable. The amounts that Antwine and Briggs will recover under the terms of the Revised Settlement Agreement represent approximately 65% of the Plaintiffs' estimations of their potential recoveries. Thus, the Settlement Amount is clearly a "substantial proportion of the maximum possible recovery"; indeed, the Settlement Amount is a considerably larger proportion than those which other courts have found fair and reasonable. Moreover, the Parties have represented that bona fide disputes exist over every basis on which the Plaintiffs claim they are entitled to damages. These disputes certainly militate in favor of approval, as settlement avoids the expense, burden, and risk associated with going to trial. In sum, Judge Karas holds that the Plaintiffs have now provided the Court with the information necessary to conduct the "information intensive undertaking" of examining whether a proposed FLSA settlement is fair and reasonable, and he finds that the Settlement Amount merits approval. B. Release Provision The Court also noted that the release provision in the Parties' original proposed settlement agreement was overly broad. The Parties have amended the language in the Revised Settlement Agreement by limiting the waiver to claims "relating only to or arising out of the claims at issue in this Action." Judge Karas finds that this revised language satisfies the requirement that "any release provision must be limited to the claims at issue in the action." Because the release is now limited to the conduct at issue in the matter, he is satisfied that the release is no longer overbroad. C. Attorneys' Fees While the Court previously found that the proposed attorneys' fees were reasonable as a fair percentage of the net award, the proposed attorneys' fees in the Revised Settlement Agreement merit brief mention again here because the Plaintiffs' substantiation for their proposed attorneys' fees has slightly changed. As before, the Plaintiffs' counsel seeks an award of $9,116, which amounts to approximately one-third of the settlement plus $536 in costs. And, again as before, the Plaintiffs' counsel has submitted records of their time to substantiate their attorneys' fees request, which the Plaintiffs' counsel represents are contemporaneous. The difference in the Plaintiffs' instant submission is that the Plaintiffs' counsel has now spent an additional 2.3 hours working on this Action to revise their submission to the Court. Because the Plaintiffs' counsel does not seek a larger attorneys' fee award to account for this additional time, the additional time has the effect of reducing the Plaintiffs' counsel's requested lodestar multiplier from 1.59 to 1.42. Given that the Court already found that a multiplier of 1.59 was reasonable to account for the risk inherent in bringing any FLSA action on contingency, Judge Karas finds here that the even more modest multiplier of 1.42 is also reasonable, even generous. Accordingly, he concludes that the proposed attorneys' fees continue to be reasonable as a fair percentage of the net award. III. Conclusion For the foregoing reasons, Judge Karas granted the Plaintiffs' request for approval of the Parties' Revised Settlement Agreement is granted. A full-text copy of the Court's Feb. 23, 2022 Opinion & Order is available at https://tinyurl.com/5xdas3vc from Leagle.com. John Gurrieri, Esq. -- jmgurrieri@zellerlegal.com -- Law Office of Justin A. Zeller, in New York City, Counsel for the Plaintiffs. Scott Matthews, Esq. -- smatthews@windelsmarx.com -- Windels, Marx, Lane & Mittendorf, LLP, in New York City, Counsel for the Defendants. E.I. DU PONT DE NEMOURS: Faces Blood Contamination Suit -------------------------------------------------------- Corteva, Inc. disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that E.I. du Pont de Nemours and Company, a consolidated subsidiary of the company, is a defendant in a putative nationwide class action brought on behalf of anyone who has detectable levels of perfluoroalkyl and polyfluoroalkyl substances (PFAS) in their blood serum. Corteva, Inc. is a provider of seed and crop protection solutions based in Indiana. E.I. DU PONT DE NEMOURS: Faces Suit Over PFOA Releases ------------------------------------------------------- Corteva, Inc. disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that E.I. du Pont de Nemours and Company, a consolidated subsidiary of the company, is a defendant of a putative class action, brought by persons who live in and around Hoosick Falls, New York. These lawsuits assert claims for medical monitoring and property damage based on alleged perfluorooctanoate (PFOA) releases from manufacturing facilities owned and operated by co-defendants in Hoosick Falls and allege that E.I. du Pont supplied some of the materials used at these facilities. Corteva, Inc. is a provider of seed and crop protection solutions based in Indiana. E.I. DU PONT DE NEMOURS: Water Contamination Suit Dismissed ----------------------------------------------------------- Corteva, Inc. disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that on December 31, 2021, a putative class action, against E.I. du Pont de Nemours and Company, a consolidated subsidiary of the company, alleging that perfluorooctanoate (PFOA) from E.I. du Pont's former Chambers Works facility contaminated drinking water sources was voluntarily dismissed without prejudice by the plaintiff. Corteva, Inc. is a provider of seed and crop protection solutions based in Indiana. ENCLARITY INC: Seeks to Exclude Opinions of Expert Witness Howard ----------------------------------------------------------------- In the class action lawsuit captioned as MATTHEW N. FULTON, DDS, P.C., individually and as the representative of a class of similarly-situated persons, v. ENCLARITY, INC., LEXISNEXIS RISK SOLUTIONS INC., LEXISNEXIS RISK SOLUTIONS GA INC., LEXISNEXIS RISK SOLUTIONS FL INC., and JOHN DOES 1-12, Case No. 2:16-cv-13777-DPH-RSW (E.D. Mich.), the Defendants ask the Court to enter an order excluding certain opinions of the Plaintiff's proffered expert witness Lee Howard. The Defendants contend that whether Plaintiff's proffered expert witness, Lee Howard, must be excluded by this Court from offering expert witness testimony (i) that an unverified and unauthenticated data column called "Deliveries" somehow reliably demonstrates the number of successfully delivered faxes and (ii) that all faxes, including faxes received via an online fax service, are necessarily received on a "telephone facsimile machine" encompassed by the Telephone Consumer Protection Act (TCPA). Enclarity provides healthcare information solutions. A copy of the Defendant's motion dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3MfB4Rv at no extra charge.[CC] The Defendants are represented by: Tiffany Cheung, Esq. MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Telephone: (415) 268-7000 E-mail: tcheung@mofo.com - and - Amy Sabbota Gottlieb, Esq. DICKINSON WRIGHT PLLC 2600 West Big Beaver Road, Suite 300 Troy, MI 48084 Telephone: (248) 433-7286 E-mail: agottlieb@dickinsonwright.com ENCLARITY INC: Wins Bid to Seal Exhibit Nos. 2-7, 9, 10, 13 ------------------------------------------------------------ In the class action lawsuit captioned as MATTHEW N. FULTON, DDS, P.C., individually and as the representative of a class of similarly-situated persons, v. ENCLARITY, INC., LEXISNEXIS RISK SOLUTIONS INC., LEXISNEXIS RISK SOLUTIONS GA INC., LEXISNEXIS RISK SOLUTIONS FL INC., and JOHN DOES 1-12, Case No. 2:16-cv-13777-DPH-RSW (E.D. Mich.), the Hon. Judge Denise Page Hood United States District entered an order granting the defendants' motion to seal Exhibit Nos. 2-7, 9, 10, 13 to the Defendants' opposition to the Plaintiff's motion for class certification and the Defendants' motion to exclude certain opinions of the Plaintiff's expert witness Lee Howard, and portions of the Defendants' opposition and motion. Enclarity provides healthcare information solutions. A copy of the Court's order dated Feb. 23, 2021 is available from PacerMonitor.com at https://bit.ly/3CgRswr at no extra charge.[CC] EVERI PAYMENTS: Saavedra Must File Class Cert. Bid by April 15 -------------------------------------------------------------- In the class action lawsuit captioned as Sadie Saavedra v. Everi Payments, Inc., Case No. 2:21-cv-06999-PA-PD (C.D. Cal.), the Hon. Judge Percy Anderson entered an order granting Plaintiff to file her motion for class certification no later than April 15, 2022. The Court said, "Despite the Plaintiff's procedural failings, the Court finds that an extension of the deadline is appropriate to allow a decision on the merits. Federal Rule of Civil Procedure 6(b) permits a court to grant an extension of time for good cause and, "like all the Federal Rules of Civil Procedure, '[is] to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.'" Here, Plaintiff proactively sought an extension, rather than waiting until the deadline passed. There is no evidence suggesting that Plaintiff seeks this extension in bad faith. There is no real prejudice to Defendants, as the Court has not yet issued a Scheduling Order establishing any discovery, motion, or trial deadlines. An extension, therefore, causes no real delay, and at most will require Defendants to file a substantive opposition to Plaintiff's motion for class certification. The Court, therefore, finds that a modest extension of the deadline for Plaintiff to file her motion for class certification is appropriate." The Plaintiff filed this class action suit against the Defendants on August 30, 2021. The Defendants waived service on September 21, 2021, setting the deadline for Plaintiff's motion for class certification as January 19, 2022. On December 7, 2021, the Plaintiff filed a First Amended Complaint, which Defendants moved to dismiss and to strike class allegations. The parties stipulated to a continuance of the hearing, which the Court granted in part and denied in part, setting the hearing for February 7, 2022. On February 4, 2022, the Court granted Defendants' motion to dismiss but gave Plaintiff leave to amend, simultaneously ruling that Defendants' motion to strike was moot. On February 18, 2022, Plaintiff filed her Second Amended Complaint. Everi 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 Civil Minutes -- General dated Feb. 24, 2021 is available from PacerMonitor.com at https://bit.ly/3tv2t9h at no extra charge.[CC] FEDEX GROUND: RSI, TTI & CEI Can't Intervene in Claiborne FLSA Suit ------------------------------------------------------------------- In the case, HORACE CLAIBORNE, SONJIA MONIQUE BOWLIN, TYSHAWN WALKER, DEZRAE KAUHANE, WILLIE SEALS, FREDERICK EPPICH, JEROME SCHOOLFIELD, KRISTINA TRAVIS, JEREMY WINKELS, DANIEL FORRESTER, MARK DAVID GRIFFETH, DOUGLAS RUSSELL, KENNETH BURTON, GERALD GENSOLI, and THOMAS DEPPIESSE, on behalf of themselves and others similarly situated, Plaintiffs v. FEDEX GROUND PACKAGE SYSTEMS, INC., Defendant, Case No. 2:18-cv-01698-RJC (W.D. Pa.), Judge Robert J. Colville of the U.S. District Court for the Western District of Pennsylvania denied the three Motions to Intervene. The Motions to Intervene are filed by Ryan Systems, Inc. ("RSI"), TABE Trucking Inc. ("TTI"), and Cauble Enterprises, Inc. ("CEI"). I. Introduction The present case is a hybrid collective action brought under the Fair Labor Standards Act ("FLSA") and Rule 23 class action brought under the laws of fourteen states by the named Plaintiffs on behalf of themselves and other similarly situated individuals against Defendant FedEx. The Proposed Intervenors have each separately moved, pursuant to Federal Rule of Civil Procedure 24(a) and 24(b), to intervene in the action in order to request that the Court strike the notices of consent of, and dismiss with prejudice, certain Opt-In Plaintiffs ("Opt-Ins") who, in the Proposed Intervenors' estimation, do not meet the definition of the putative class In the relevant briefing, the Proposed Intervenors make substantively (and, in most instances, completely) identical arguments in support of their respective Motions to Intervene. Specifically, each of the Proposed Intervenors asserts, respectively, that it was the direct employer of certain Opt-Ins, and further asserts that such Opt-Ins did not drive a vehicle weighing 10,000 pounds or less during any workweek in which those Opt-Ins worked over 40 hours. The Proposed Intervenors argue that they have better access to relevant records pertaining to the Opt-Ins at issue than FedEx, and further argue that the Proposed Intervenors are, respectively, better suited to present a Motor Carrier Act exemption defense to this Court than FedEx. They also assert that each Proposed Intervenor has a substantial interest in the instant matter because FedEx has threatened each Proposed Intervenor with a lawsuit for indemnity if the Proposed Intervenors did not move to intervene in the case. The Plaintiffs oppose the Motions to Intervene, and FedEx does not oppose the Motions to Intervene. The Court has jurisdiction in the matter pursuant to 28 U.S.C. Section 1331. The Motions to Intervene have been fully briefed and are ripe for disposition. II. Background The Plaintiffs assert that they were employed by FedEx through intermediary employers to perform delivery services on FedEx's behalf. They further assert that FedEx has violated the FLSA by not paying overtime compensation to them for all hours worked over 40 each week. The case was reassigned from the Honorable Patricia L. Dodge to Judge Colville on Feb. 4, 2020. On Oct. 8, 2019, Judge Dodge entered an Order conditionally certifying the following nationwide (excluding Massachusetts) collective: "All individuals (outside Massachusetts) who worked as a FedEx delivery driver under an independent service provider (ISP) or a contracted service provider (CSP) since No. 27, 2015, who operated a vehicle weighing less than 10,001 pounds at any time since Nov. 27, 2015, and were not paid overtime compensation for all hours worked over forty each week." On Jan. 31, 2020, Judge Dodge entered a Memorandum Opinion and Order denying FedEx's "Rule 19(a) Motion to Join Pennsylvania Service Providers as Necessary Parties and Rule 19(b) Motion to Dismiss for Failure to Join Indispensable Parties." In its Rule 19 Motion, FedEx sought joinder of Pennsylvania Servicer Providers to the action, as well as the dismissal of all claims pertaining to opt-in Plaintiffs residing outside of Pennsylvania and Service Providers who employed drivers outside of Pennsylvania. FedEx argued that Service Providers are necessary and indispensable parties in the case because they employ and pay the Plaintiff drivers, set the employment and wage policies for drivers, and have a direct interest in the outcome of the case. Judge Dodge ultimately held that Service Providers are not required parties under Fed. R. Civ. P. 19(a) because: (1) "The Court can accord complete relief among existing parties"; (2) "Service Providers do not have a direct stake in this litigation"; and (3) "the absence of Service Providers would not subject FedEx to inconsistent obligations." On May 21, 2020, the Court issued a Memorandum Opinion denying FedEx's Motion to Disqualify, which sought disqualification of Plaintiffs' counsel, Lichten & Liss-Riordan, P.C., on the basis that the firm's concurrent representation of both the Plaintiffs and a class of Service Providers in Carrow v. FedEx Ground Package System, Inc., No. 16-3026 (D.N.J.) purportedly created a concurrent conflict of interest under Pennsylvania Rule of Professional Conduct 1.7. Mem. Op. 5. The Court has also issued a Memorandum Opinion and Order in the case granting the Plaintiffs leave to file an Amended Complaint in the matter. The Amended Complaint was filed on Aug. 24, 2021. The Court has also resolved several discovery disputes that have arisen in the matter, and the present parties are currently in the process of conducting discovery in accordance with the Court's Case Management Order. III. Discussion Initially, Judge Colville notes that it is the second attempt to include Service Providers in the litigation, and FedEx's third time arguing that a decision in the case will directly impact Service Providers. Essentially, FedEx and the Proposed Intervenors ask the Court to reconsider a determination that has twice been reached, first by Judge Dodge and then by the undersigned, in the matter as to Service Providers' potential interest (or, more accurately, lack thereof) in the ligation. Judge Colville will not revisit those previous determinations at this juncture, and further rejects the arguments set forth in the Motions to Intervene and relevant briefing that the Proposed Intervenors are entitled to intervene pursuant to Rule 24(a) in the matter or should otherwise be permitted to intervene in the matter pursuant to Rule 24(b). Judge Colville opines that the Proposed Intervenors (and FedEx) fail to provide the Court a sufficient basis to revisit the Court's previous determinations with respect to Service Providers' lack of a sufficient interest in the litigation. The Court has twice determined that Service Providers do not have a direct stake in the litigation, and Judge Colville will not casually "rethink" a decision that has already been reached on two separate occasions. For the reasons discussed in Judge Dodge's Jan. 31, 2020 Memorandum Opinion denying FedEx's "Rule 19(a) Motion to Join Pennsylvania Service Providers as Necessary Parties and Rule 19(b) Motion to Dismiss for Failure to Join Indispensable Parties," and further discussed in the Court's May 21, 2020 Memorandum Opinion denying FedEx's Motion to Disqualify, Judge Colville holds that the Service Providers do not have a sufficient interest in the present action to warrant intervention as of right under Rule 24(a). He notes that FedEx's threat of potentially filing actions for indemnity against individual Service Providers was raised as a basis for the relief sought by way of both FedEx's Rule 19 Motion and its disqualification motion. The Court has already held that FedEx failed to satisfy the less restrictive Rule 19 standard because Service Providers do not have a direct stake in this litigation, and it has held that "while FedEx may pursue indemnification and contract termination following the conclusion of the present action, a finding of liability on FedEx's part in no way establishes FedEx's right to recover from Service Providers." Judge Colville finds that the Proposed Intervenors fail to set forth a sufficient interest in this litigation, or that the litigation poses a threat to any such interest. Turning to permissive intervention pursuant to Rule 24(b), Judge Colville finds that, even if the Proposed Intervenors satisfied the requirements of Rule 24(b)(1)(B), the Motions to Intervene make clear that permitting intervention will result in undue delay of this action. Each of the Proposed Intervenors asserts that it intends to file a motion to dismiss a (very) select few of the approximately 30,000 opt-in plaintiffs in the action. Such motions will clearly delay the adjudication of the matter, Judge Colville opines, which has been pending for more than three years and has already involved significant motion practice in the absence of Service Providers. FedEx has, on numerous occasions, reminded the Court that the present action is, purportedly, the largest conditionally certified nationwide collective action in history, and has repeatedly argued that this case, as presently positioned without Service Providers' participation, is significantly unwieldy. The addition of three Service Providers, each of whom intends to file a motion to dismiss individual opt-ins and duplicative briefing respecting the issue of decertification, will serve to make the case more complicated, convoluted, and unwieldy, and will clearly result in undue delay in the action. In light of the same, Judge Colville declines to exercise its discretion to permit intervention under Rule 24(b). IV. Conclusion For the reasons he discussed, Judge Colville denied the Motions to Intervene filed by RSI, TTI, and CEI. An appropriate Order of the Court follows. A full-text copy of the Court's Feb. 23, 2022 Memorandum Opinion is available at https://tinyurl.com/2tfjhmx2 from Leagle.com. FORD MOTOR: Leave to File Notice of Supplemental Authority Sought ----------------------------------------------------------------- In the class action lawsuit captioned as PAUL WEIDMAN, et al., v. FORD MOTOR COMPANY, Case No. 2:18-cv-12719-GAD-EAS (E.D. Mich.), the Plaintiffs ask the Court to enter an order granting their Plaintiffs' motion for leave to file the notice of supplemental authority. Ford Motor is an American multinational automobile manufacturer headquartered in Dearborn, Michigan, United States. It was founded by Henry Ford and incorporated on June 16, 1903. The company sells automobiles and commercial vehicles under the Ford brand, and luxury cars. A copy of the Plaintiffs' motion dated Feb. 17, 2021 is available from PacerMonitor.com at https://bit.ly/3pmJbBV at no extra charge.[CC] The Plaintiffs are represented by: Sharon S. Almonrode, Esq. Dennis A. Lienhardt, Esq. E. Powell Miller, Esq. Melvin Butch Hollowell, Jr., Esq. THE MILLER LAW FIRM PC 950 West University Drive, Ste. 300 Rochester, MI 48307 Telephone: (248) 841-2200 E-mail: epm@millerlawpc.com ssa@millerlawpc.com dal@millerlawpc.com mbh@millerlawpc.com - and - W. Daniel "Dee" Miles, III, Esq. H. Clay Barnett, III, Esq. J. Mitch Williams, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 272 Commerce Street Montgomery, Alabama 36104 Telephone: (334) 269-2343 E-mail: dee.miles@beasleyallen.com clay.barnett@beasleyallen.com mitch.williams@beasleyallen.com - and - Adam J. Levitt, Esq. John E. Tangren, Esq. DICELLO LEVITT GUTZLER LLC Ten North Dearborn Street, Sixth Floor Chicago, IL 60602 Telephone: (312) 214-7900 E-mail: alevitt@dlcfirm.com jtangren@dlcfirm.com - and - Mark P. Chalos, Esq. Annika K. Martin, Esq. Evan J. Ballan, Esq. LIEFF CABRASER HEIMANN BERNSTEIN, LLP 222 2nd Ave S, Suite 1640 Nashville, TN 37201 Telephone: (615) 313-9000 E-mail: mchalos@lchb.com akmartin@lchb.com eballan@lchb.com FOREST RIVER: Fitzgerald's Class of Workers Conditionally Certified ------------------------------------------------------------------- In the case, HEATHER R. FITZGERALD, on behalf of herself and all others similarly situated, Plaintiff v. FOREST RIVER MANUFACTURING LLC, Defendant, Cause No. 3:20-CV-1004 DRL-MGG (N.D. Ind.), Judge Damon R. Leichty of the U.S. District Court for the Northern District of Indiana, South Bend Division, granted the Plaintiff's Motion for Conditional Class Certification. I. Background Ms. Fitzgerald alleges that Forest River Manufacturing LLC violated the Fair Labor Standards Act (FLSA) by diluting her overtime wages through its piece-rate wage system. Ms. Fitzgerald filed her first motion to conditionally certify a collective action under FLSA on Feb. 11, 2021. Forest River requested expedited discovery. The Court denied the motion for conditional certification with leave to renew and authorized limited pre-certification discovery. Ms. Fitzgerald renewed her motion following the discovery. Forest River is in the business of manufacturing recreational vehicles, such as motorhomes and recreational camper trailers. Ms. Fitzgerald was employed by Forest River and its predecessor company, Coachmen, from mid-2003 until her voluntary resignation in February 2019, though she left her employ on two occasions during that timeframe. She worked for Forest River as a manufacturing employee at three different plants in Middlebury, Indiana. As a non-exempt employee, she regularly worked in excess of 40 hours per workweek. Ms. Fitzgerald clocked in at the beginning and end of her workday. She says she was paid based on the number of units she completed--known as piece-rate pay. The time she spent completing units was considered productive time, while the time she spent waiting for units, taking inventory, and performing other tasks was considered non-productive time. She conservatively estimates that she spent at least 10% of her work time in non-productive hours. She testified that the waiting time was unpaid, but it did go toward whether she worked 40 hours and qualified for overtime. She says Forest River didn't keep records that differentiated between an employee's productive time and non-productive time. Ms. Fitzgerald testified that she frequently asked how the piece-rate pay was calculated, but she never figured it out. Ms. Fitzgerald claims that Forest River didn't pay her for non-productive time (save a separate hourly rate for time spent taking inventory). She says she didn't have an agreement with Forest River that would count production pay as pay for all hours worked. Furthermore, she asserts that Forest River paid her only a one-half premium for overtime hours, instead of one and one-half times the regular rate. She says Forest River improperly calculated her regular rate of pay by including productive and unpaid non-productive hours in the regular rate calculation. Ms. Fitzgerald says Forest River improperly calculated her overtime pay and the overtime pay of similarly situated employees for thousands of weeks during the relevant time period in which she and the other employees were paid on a piece-rate basis and worked overtime hours. Forest River's pay system allegedly includes calculating a regular rate of pay using productive and non-productive hours and then reducing overtime premiums to a half-time rate (rather than a one and one-half regular rate). Ms. Fitzgerald thus requests that her overtime claims be conditionally certified as a collective action under 29 U.S.C. Section 216(b). Her motion is ripe for review. II. Discussion Ms. Fitzgerald proposes conditionally certifying the following action under FLSA: "All current and former employees of Defendant who work/worked for Defendant as manufacturing employees in the United States, are/were paid entirely on a piece rate basis, and who worked more than forty (40) hours in at least one workweek beginning February 11, 2018 and continuing through the final disposition of this case." Ms. Fitzgerald bears the burden of demonstrating that these potential members are similarly situated to her in light of the framed FLSA violation. A. Renewed Motion for Conditional Certification Judge Leichty opines that Ms. Fitzgerald has sufficiently demonstrated that she and other potential plaintiffs together were victims of a common policy or plan. She and the other opt-in plaintiffs affirmed that they (1) were paid on a piece-rate basis for their productive hours only, (2) were not given an explanation of how their wages were calculated, (3) were not paid for most of their non-productive hours waiting or cleaning, (4) didn't have an agreement with Forest River about counting non-productive hours when calculating overtime rates, and (5) worked more than 40 hours in many workweeks. The record also establishes that Forest River paid piece-rate to employees at 36 plants where employees worked similarly in the manufacture of units, and did so under a single employee handbook that included a provision governing piece-rate pay. All told, Ms. Fitzgerald has presented facts "sufficient to demonstrate that she and the potential plaintiffs together were victims of a common policy or plan that violated the law." Therefore, Judge Leichty conditionally certifies the action under FLSA. B. Proposed Notice Having approved conditional certification, Judge Leichty next addresses Ms. Fitzgerald's proposed notice. "Absent reasonable objections by either the defendant or the court, plaintiffs should be allowed to use the language of their choice in drafting the notice." Forest River argues that the proposed notice should be revised because it includes all piece-rate employees who worked overtime, even those who understood that the piece rate was intended to compensate them for the time Ms. Fitzgerald regards as non-productive. Forest River points out that the proposed collective includes employees who were "entirely" paid by piece-rate and that the company had no such employees, particularly given that employees would log separate non-productive time that was compensated differently (e.g., inventory time). Ms. Fitzgerald never opposes the deletion of the word "entirely," and its inclusion seems on this record superfluous and inconsistent with affiants who declared that they were paid "almost all" based on a piece-rate system. Judge Leichty thus orders the substitution of the word "primarily" for "entirely" in the notice. C. Forest River's Motion to Strike Forest River moves to strike the affidavits submitted by opt-in plaintiffs Korbin Sanderson and Dominik Sanderson and to dismiss the Sandersons from this action. Additionally, it moves to strike the portions of the affidavits submitted by the opt-in plaintiffs that aren't based on personal knowledge. Judge Leichty holds that Ms. Fitzgerald has not shown that the Sandersons' noncompliance was substantially justified or harmless. The Court thus has stricken and disregarded the affidavits from the Sandersons to decide conditional certification and has done so as a sanction for their willful noncompliance with discovery. Judge Leichty orders the Sandersons to respond to the propounded discovery by March 7, 2022. If full responses are not received by Forest River by that date, he will dismiss the Sandersons' claims with prejudice. The company may file a mere notice of noncompliance, with any objection to be filed within three days of the notice. As to the portions of the opt-in plaintiffs' affidavits that aren't based on personal knowledge, "motions to strike are heavily disfavored, and usually only granted in circumstances where the contested evidence causes prejudice to the moving party." Judge Lechty holds that those portions of the affidavits submitted by the Plaintiffs that weren't based on personal knowledge, particularly those based on unidentified conversations with other Forest River employees, had no bearing on the Court's conditional certification ruling. Forest River hasn't argued how this evidence would otherwise cause them prejudice. Judge Leichty sees it as unnecessary to strike these affidavits given that these offending parts were disregarded. Accordingly, he denies this part of the motion to strike as moot. III. Conclusion Ms. Fitzgerald has met her step one burden to certify a conditional collective action for her overtime claims based on Forest River's piece-rate wage system. Judge Leichty, thus, granted her renewed motion for conditional certification, and granted in part Forest River's motion to strike. Judge Leichty conditionally certified the following collective: "All current and former employees of Defendant who work/worked for Defendant as manufacturing employees in the United States, are/were paid primarily on a piece rate basis, and who worked more than forty (40) hours in at least one workweek beginning February 11, 2018 and continuing through the final disposition of this case." Having so conditionally certified the collective under FLSA, Judge Leichty now (1) directed that notice be sent by United States mail and email to all putative members; (2) approved the proposed notice and consent to join form, as amended by the Opinion, informing such present and former employees of the pendency of the collective action and permitting them to opt in to the case; (3) ordered Forest River to provide within 14 days a roster of the foregoing members, including their full names, dates of employment, last known home addresses, and personal email addresses, including such roster in Excel or a similar exportable/importable format; (4) directed Forest River to file a declaration that the produced roster fully complies with the Order; (5) ordered that notice, in the form approved by the Court, be sent to such present and former collective members within 14 days of the Plaintiff's receipt of the roster using the information containing the same; (6) ordered the Plaintiff to file a copy of an as-complete exemplar of the notice as sent; (7) directed a notice period of 90 days; and (8) authorized duplicate copies of the notice in the event that new, updated, or corrected mailing addresses or email addresses are found for one or more of putative employee-members. Judge Leichty ordered Korbin and Dominik Sanderson to respond to propounded discovery by March 7, 2022, and cautioned them that, if full responses are not received by Forest River by that date, he will dismiss their claims with prejudice. A full-text copy of the Court's Feb. 23, 2022 Opinion & Order is available at https://tinyurl.com/bp8m7vmp from Leagle.com. FOX REHABILITATION: Amended Scheduling Order Entered in Conner -------------------------------------------------------------- In the class action lawsuit captioned as STEVEN A. CONNER DPM, P.C., individually and on behalf of all others similarly situated, v. FOX REHABILITATION SERVICES, P.C., Case No. 2:21-cv-01580-MMB (E.D. Pa.), the Hon. Judge Michael M. Baylson entered an amended scheduling order as follows: 1. The Plaintiff's Deadline to file April 26, 2022 Motion for Class Certification: 2. The Defendant's Deadline to File Opposition to Class Certification: May 30, 2022 3. The Plaintiff's Deadline to File Reply Brief for Class Certification: June 13, 2022 4. Discovery deadline: Dec. 19, 2022 5. Exchange of expert reports pursuant to Rule 26(a)(2): (Defendant) Oct. 28, 2022 (Plaintiff) Sept. 27, 2022 6. Deadline for dispositive motions: Jan. 30, 2023 7. Date for trial or entry into April 17, 2023 trial pool: Fox Rehabilitation provides rehabilitation services. The Company offers physical, occupational, and speech therapy services. A copy of the Court's order dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3IAdVag at no extra charge.[CC] FREDDIE MAC: Pending Breach of Contract Suits Consolidated ---------------------------------------------------------- Federal Home Loan Mortgage Corporation (doing business as "Freddie Mac") disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that a consolidated complaint was filed against the company alleging that the August 2012 amendment to the Purchase Agreement breached Freddie Mac and the Federal National Mortgage Association's respective contracts with the holders of junior preferred stock and common stock and the covenant of good faith and fair dealing inherent in such contracts. Three putative class action lawsuits were consolidated: "Cacciapelle and Bareiss vs. Federal National Mortgage Association, Federal Home Loan Mortgage Corporation and FHFA," filed on July 29, 2013; "American European Insurance Company vs. Federal National Mortgage Association, Federal Home Loan Mortgage Corporation and FHFA," filed on July 30, 2013; and "Marneu Holdings, Co. vs. FHFA, Treasury, Federal National Mortgage Association and Federal Home Loan Mortgage Corporation," filed on September 18, 2013. A consolidated amended complaint was filed in December 2013. In the consolidated amended complaint, plaintiffs alleged, among other items, that the August 2012 amendment to the Purchase Agreement breached Freddie Mac and the Federal National Mortgage Association's respective contracts with the holders of junior preferred stock and common stock and the covenant of good faith and fair dealing inherent in such contracts. Plaintiffs sought unspecified damages, equitable and injunctive relief, and costs and expenses, including attorney and expert fees. Federal Home Loan Mortgage Corporation is a government sponsored enterprise based in Virginia. FREDDIE MAC: Sixth Circuit Junks Bid to Dismiss Plaintiff's Appeal ------------------------------------------------------------------ Federal Home Loan Mortgage Corporation (doing business as Freddie Mac) disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that the company's motion to dismiss plaintiff's appeal was denied in January 2022. A putative securities class action lawsuit was filed against Freddie Mac and certain former officers on January 18, 2008 in the U.S. District Court for the Northern District of Ohio purportedly on behalf of a class of purchasers of Freddie Mac stock from August 1, 2006 through November 20, 2007. FHFA later intervened as Conservator, and the plaintiff amended its complaint on several occasions. The plaintiff alleged, among other things, that the defendants violated federal securities laws by making false and misleading statements concerning the company's business, risk management, and the procedures put into place to protect the company from problems in the mortgage industry. The plaintiff seeks unspecified damages and interest, and reasonable costs and expenses, including attorney and expert fees. In October 2013, defendants filed motions to dismiss the complaint. In October 2014, the District Court granted defendants' motions and dismissed the case in its entirety against all defendants, with prejudice. In November 2014, plaintiff filed a notice of appeal in the U.S. Court of Appeals for the Sixth Circuit. In July 2016, the Sixth Circuit reversed the District Court's dismissal and remanded the case to the District Court for further proceedings. In August 2018, the District Court denied the plaintiff's motion for class certification, and in January 2019, the Sixth Circuit denied plaintiff's petition for leave to appeal that decision. On September 17, 2020, the District Court granted a request from the plaintiff for summary judgment and entered final judgment in favor of Freddie Mac and the other defendants. On October 9, 2020, the plaintiff filed a notice of appeal in the Sixth Circuit. On January 27, 2021, Freddie Mac filed a motion to dismiss the appeal, which the Sixth Circuit denied on January 6, 2022. Federal Home Loan Mortgage Corporation is a government sponsored enterprise based in Virginia. FRESH HARVEST: More Time to File Class Cert Bid Sought ------------------------------------------------------ In the class action lawsuit captioned as RIGOBERTO SARAMIENTO, and others similarly situated, v. FRESH HARVEST, INC., et al., Case No. 5:20-cv-07974-BLF (N.D. Cal.), the Parties ask the Court to enter an order extending the deadline for them parties to mediate and that Plaintiffs' deadline for filing a motion class certification be extended from the present deadlines, and that a class certification briefing schedule be set: Present Proposed Deadline Deadline -- Deadline for Parties to March 9, 2022 Oct. 14, 2022 Engage in Mediation: -- Deadline for Filing of April 29, 2022 Nov. 18, 2022 Class Certification: -- Opposition to Class Two weeks from Jan. 13, 2023 Certification: filing -- Reply in Support of 1 week from Feb. 10, 2023 Class Certification filing of Opposition Fresh Harvest is the premier labor provider, staffing and harvesting company to agriculture industry in the western United States. A copy of the Parties' motion dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3Kcp01I at no extra charge.[CC] The Plaintiff is represented by: Dawson Morton, Esq. Santos Gomez, Esq. LAW OFFICES OF SANTOS GOMEZ 1003 Freedom Boulevard Watsonville, CA 95076 Telephone: (831) 228-1560 Facsimile: (831) 228-1542 E-mail: dawson@lawofficesofsantosgomez.com santos@lawofficesofsantosgomez.com Counsel for Fresh Harvest, Inc. and SMD Logistics, Inc., are: Charley M. Stoll, Esq. CHARLEY M. STOLL, P.C. 340 Rosewood Ave, Ste K Camarillo, CA 93010 E-mail: cstoll@cmsapc.com - and - Rob Roy, Esq. VENTURA COUNTY AGRICULTURAL ASSOCIATION 916 W. Ventura Blvd. Camarillo CA 93010 E-mail: Rob-vcaa@pacbell.net - and - Robert Mussig, Esq. Tyler Johnson, Esq. Sheppard Mullin, Esq. E-mail: rmussig@sheppardmullin.com tjohnson@sheppardmullin.com Counsel for Fresh Foods, Inc. and Rava Ranches, Inc., are: Ana Toledo, Esq. NOLAND, HAMERLY, ETIENNE & HOSS 333 Salinas Street P.O. Box 2510 Salinas, CA 93902 E-mail: atoledo@nheh.com canossett@nheh.com GIVESURANCE INSURANCE: Stay of Shanks Suit Lifted for Discovery --------------------------------------------------------------- In the case, BROCK SHANK, individually and on behalf of all persons and entities similarly situated, Plaintiff v. GIVESURANCE INSURANCE SERVICES, INC., PROGRESSIVE CASUALTY INSURANCE COMPANY AND PROGRESSIVE WEST INSURANCE COMPANY, Defendants. and GIVESURANCE INSURANCE SERVICES, INC., Third-Party Plaintiff. v. INFORMA MEDIA, INC., Third-Party Defendant, Case No. 3:19-CV-136 (S.D. Ohio), Judge Walter H. Rice of the U.S. District Court for the Southern District of Ohio, Western Division: (i) overruled the Defendants' Refiled Motion to Dismiss and Informa's Motion to Dismiss; and (ii) sustained the Plaintiff's Motion to Lift Stay to conduct discovery. I. Introduction Before the Court is a Motion for Judgment on the Pleadings filed by Defendants, Progressive Casualty Insurance Company and Progressive West Insurance Company (collectively "Progressive"). Defendant and Third-Party Plaintiff, Givesurance Insurance Services, Inc., has filed a Notice of Joinder in Progressive's motion. The Court has considered the Plaintiff's Notice of Opposition and Request to Lift Stay to conduct discovery, and the Plaintiff's Memorandum in Opposition, as well as the reply filed by Progressive, and Progressive's Supplemental Authority. Also, before the Court is a Notice filed by Third-Party Defendant Informa refiling its Motion to Dismiss Givesurance's Third-Party Complaint. The Notice attaches the motion as an exhibit. In response, Givesurance filed a Notice incorporating its previously filed Memorandum in Opposition to Givesurance's motion, and although lnforma did not refile its reply, Judge Rice considers the original such in ruling on this motion. II. Background On Feb. 11, 2020, Plaintiff Shank filed a putative national class action Amended Complaint alleging that Givesurance, a California corporation that brokers insurance services using telemarketing through automated calls, and Progressive, two Ohio corporations that "had day-to-day control over Givesurance," violated the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. Section 227. The proposed class is alleged to include the following: All persons within the United States to whom: (a) Givesurance, and/or a third party acting on Givesurance's behalf, made one or more non-emergency telephone calls; (b) to their cellular telephone number; (c) using the telephone system(s) used in calling Plaintiff's cellular telephone number; and (d) at any time in the period that begins four years before the date of the filing of the original Complaint to trial. In his Amended Complaint, the Plaintiff alleges that on March 26, 2019, Givesurance, as agent for Progressive, "placed a telemarketing call" to his cellular telephone and "an automated text then appeared" on his phone asking him to "Please contact our office to save you money on you Progressive Trucking Insurance Policy." The text message, according to the Plaintiff, concluded by providing a telephone number and an email address requesting that he either call or email Givesurance. The Caller ID showed the sender of the text message as an SMS short code of "555888" and the Amended Complaint further alleged that this short code is registered to "SimpleTexting" which, according to its website, offers "mass text messaging." The Amended Complaint cites to the SimpleTexting website, "https://simpletexting.com." and states that it offers "mass text messaging" as a '"communication service that lets an organization or business send a single text message to thousands of subscribers at the same time."' Based on these allegations, the Amended Complaint alleges that "the call" to him was "made using an automatic telephone dialing system ('ATOS' or 'autodialer'), as that term is defined in 47 U.S.C. Section 227(a)(1)." He further alleges that he had not provided Givesurance any prior express written consent to call him. The Plaintiff did not respond to Givesurance's text message, but alleges that if he had, the insurance broker would have tried to sell him a Progressive trucking insurance policy since it was the only trucking insurance policy Givesurance was authorized to sell. He further alleges that he and others "were harmed by these calls" since they were "temporarily deprived" of the "legitimate use of their phones" during the telemarketing calls. The Amended Complaint alleges that Plaintiff and the other recipients of the calls had "their privacy" invaded, that the calls were "frustrating, obnoxious, annoying" and a "nuisance" that disturbed "the solitude of the Plaintiff and of the class." On Feb. 25, 2020, Givesurance filed a Third-Party Complaint against Informa for fraud and negligent misrepresentation. This pleading alleged that in February 2019, while researching options for contacting potential trucking insurance customers, Informa "induced" it to send bulk messages through "FleetSeek, which had a list of telephone numbers belonging to members of the trucking industry who had opted in to receive text messages and other communications related to the trucking industry." Givesurance alleged in its Third-Party Complaint that Informa represented it "could partner with FleetSeek/Informa" and use their data on a mass text messaging platform "to contact the owners of the 'opted in' telephone numbers to offer them products and services." As alleged in the pleading, Givesurance agreed to use Informa's services, obtained their "opted in" telephone numbers and separately contracted with SimpleTexting, "a text marketing platform," to contact those numbers "whose owners had expressly consented to receive the messages." Shortly after the filing of the Amended Complaint and Third-Party Complaint, Progressive filed their Motion for Judgment on the Pleadings, or, in the Alternative, Motion to Stay, and Informa filed a Motion to Dismiss the Third-Party Complaint. Responses and replies were filed by the parties and on July 14, 2020, Progressive filed an Amended Motion to Stay citing the Supreme Court's recent decision granting certiorari in Facebook, Inc. v. Duguid, 591 U.S. ___, 2020 WL 3865252, *1 (2020). It asserted a decision by the Supreme Court would be helpful in resolving the issues before the Court, since certiorari was granted to determine "whether an autodialer," an ATOS, "must have the capacity to generate random or sequential phone numbers." The Plaintiff did not oppose the motion. Progressive's Amended Motion to Stay was sustained pending the Supreme Court's decision in Duguid. On March 31, 2021, the Court overruled without prejudice to refiling Progressive's Motion for Judgment on the Pleadings, Doc. #25, and Third-Party Defendant's Motion to Dismiss the Third-Party Complaint, once the pending Supreme Court decision was issued. On April 1, 2021, the Supreme Court's decision in Facebook, Inc. v. Duguid, ___ U.S. ____, 141 S.Ct. 1163, 1171, 209 L.Ed.2d 272 (2021), was announced. Thereafter, Progressive refiled its Motion for Judgment on the Pleadings, and Informa refiled its Motion to Dismiss the Third-Party Complaint. In response, Givesurance filed a Notice that it was joining in Progressive's motion and reply and incorporating by reference its previously filed Memorandum in Opposition to Informa's Motion to Dismiss. The Court will first address Progressive's Motion for Judgment on the Pleadings, followed by Informa's Motion to Dismiss the Third-Party Complaint. III. Analysis A. Defendants' Motion for Judgment on the Pleading The Defendants first argue that the Plaintiff's claim under the TCPA fails as a matter of law pursuant to the Supreme Court's decision in Duguid, since the call made to him did not come from an ATOS. They next assert that the Plaintiff lacks Article Ill standing, since his receipt of a single text does not constitute an injury-in-fact. Although the Defendants did not file a motion pursuant to Fed. R. 12(b)(1) arguing lack of subject matter jurisdiction, if the Court finds that the Plaintiff has no Article Ill standing, then the Court lacks jurisdiction to adjudicate this claim. Judge Rice first addresses the Defendants' Article III standing argument. To establish standing, the Supreme Court has held that the plaintiff must establish an injury in fact, traceable to the challenged conduct of the defendant, and a favorable judgment must be likely to redress that injury. He holds that although a single unsolicited text message "may be too minor an annoyance to be actionable at common law," it poses "the same kind of harm that common law courts recognize-a concrete harm that Congress has chosen to make legally cognizable." Accordingly, because Judge Rice finds the Amended Complaint alleged the Plaintiff received and was harmed by the unsolicited text, an injury in fact under the TCPA exists. The Defendants' Motion for Judgment on the Pleadings on the issue of Article III standing is overruled. Next issued issue before the Court is whether the Plaintiff' has pled "'sufficient factual matter'" that an ATDS was used to send the text message to him making his claim under the TCPA "plausible" and "more than merely possible." The Defendants argue the Amended Complaint alleges that "Givesurance used a communication service that allowed it to reach thousands of subscribers at the same time." They argue no claim under the TCPA is alleged since a system that uses "subscribers" or requires users to "import any existing contacts" is not an ATOS, since it did not "store or produce telephone numbers to be called, using a random or sequential number generator." In response, the Plaintiff argues that the Amended Complaint alleges facts sufficient to establish an ATOS. Judge Rice finds that the cited allegations allege a plausible claim under the TCPA. Unlike Duguid, the Plaintiff does not allege that his name was prepopulated or dialed from a legitimate list of customer or client contacts and not through a random or sequential number generator. If discovery shows that no ATDS device, as defined by Duguid, was used at the time of the alleged violation, and the Plaintiff and the individuals who received the Givesurance text message were fill "subscribers" or imported contacts as the Defendants assert, then a motion for summary judgment may be filed at that time. Accordingly, the Defendants' Motion for Judgment on the Pleadings, alleging that no claim under the TCPA exists because the Plaintiff has not pied that an ATDS was used, is overruled. B. Informa's Motion to Dismiss the Third-Party Complaint Informa has filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or, in the alternative, pursuant to Fed. R. Civ. P. 12(c). It argues that dismissal is required for the following reasons: (1) the fraud and negligent misrepresentation claims fail to satisfy the "heightened pleading standards" of Fed. R. Civ. P. 9(b) and do not state a claim for relief; (2) FleetSeek's Terms of Service ("Terms of Service") bar the tort claims of fraud and negligent misrepresentation under the economic loss doctrine; and (3) this Court lacks subject matter jurisdiction pursuant to 28 U.S.C. Section 1332, since the Terms of Service limit Informa's liability to $1,000. Informa has attached four exhibits in support of its motion: The invoice from FleetSeek to Givesurance; two sets of emails between Givesurance and Informa dated May 2019; and the Terms of Service. It has also filed a reply which includes as exhibits a declaration from an attorney who responded to a subpoena issued by Givesurance to FleetSeek and an email attached to the declaration that is alleged to be "a true and correct copy of the Feb. 12, 2019, demo request" of a Givesurance representative "initiated through the FleetSeek website." Before addressing the legal arguments in Informa's motion, Judge Rice must first determine whether he can consider the exhibits attached to the motion. She finds that the invoice, emails, Terms of Service and Declaration, are not "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint." Additionally, the Third-Party Complaint alleged claims of fraud and negligent misrepresentation against Informa, referenced no negotiations, agreements or contracts with Informa and did not cite or reference FleetSeek's website. Simply stated, it had no "pertinent documents" to attach to its Third-Party Complaint that are dispositive of its fraud and negligent misrepresentation claims. Accordingly, these exhibits, Doc. ##26-1, 26-2, 26-3, 26-4 and 33-1, are excluded from the Court's consideration in ruling on the Motion to Dismiss. Because the referenced exhibits have been excluded from consideration, Judge Rice addresses Informa's remaining argument for dismissal of the Third-Party Complaint, i.e., whether Givesurance has pied fraud and negligent misrepresentation claims sufficiently to satisfy the "heightened pleading standards" of Fed. R. Civ. P. 9(b) and has stated claims for relief that survive a motion to dismiss. Count One of the Third-Party Complaint alleges fraud in the inducement and Count Two pleads, in the alternative, negligent misrepresentation. Informa asserts that both the fraud and negligent misrepresentation claims are "eviscerated," based on the statements in the emails from "Givesurance's own principal," which the Court has excluded, and because "no false statement was ever made falsely, with knowledge of its falsity or with such utter disregard and recklessness as to whether it is true or false to infer such knowledge." Givesurance alleges, however, that in February 2019, Informa, through Altman, solicited and induced Givesurance to receive and utilize the services of FleetSeek to send bulk messages. Judge Rice holds that based on the allegations, Givesurance has pled sufficient detail to allow Informa to prepare a responsive pleading. Givesurance has also pled the necessary legal elements of fraud and negligent misrepresentation in its Third-Party Complaint. Both counts incorporate the previously alleged factual allegations and, with respect to the alternative claim of negligent misrepresentation, Givesurance pleads an affirmative representation and not an omission. Accordingly, Informa's Motion to Dismiss, is overruled. IV. Conclusion For the reasons he set forth, Judge Rice overruled the Defendants' Refiled Motion to Dismiss and Informa's Motion to Dismiss. He sustained the Plaintiff's Motion to Lift Stay. A full-text copy of the Court's Feb. 23, 2022 Decision is available at https://tinyurl.com/y5hk782x from Leagle.com. GOODMAN GROUP: Court Grants Bid to Dismiss Estavilla Class Suit --------------------------------------------------------------- In the case, JEE IRENE ESTAVILLA, individually, and on behalf of all similarly situated individuals, Plaintiff v. THE GOODMAN GROUP, LLC; COMMUNITY NURSING INC., d/b/a THE VILLAGE HEALTH & REHABILITATION f/k/a THE VILLAGE HEALTH CARE CENTER and JOHN DOES 1-10, Defendants, CV 21-68-M-KLD (D. Mont.), Magistrate Judge Kathleen L. DeSoto of the U.S. District Court for the District of Montana, Missoula Division, granted the Defendants' motion to dismiss the Plaintiff's complaint for failure to state a claim upon which relief can be granted. I. Background Village Health is a skilled nursing facility located in Missoula, Montana and is a subsidiary of Goodman, which manages The Village and several other senior communities across the United States. Estavilla, a citizen of the Republic of the Philippines, is a registered nurse and former employee of Village Health. On Aug. 19, 2015, Village Health sent a conditional offer of employment to Estavilla, who was residing at the time in Cebu City, Philippines. It offered Estavilla employment as a registered nurse at its Missoula facility, with a base compensation rate of $25.52 per hour. The Offer Letter advised Estavilla that in order for her to be eligible for employment, Village Health would need to sponsor her as an employment-based immigrant and she would have to meet the immigration requirements of the United States. Village Health also agreed to advance other compensation and costs, including: (1) an initial incentive payment in the amount of $1,000; (2) meals, lodging, and utilities for the first three months of Estavilla's employment; and (3) the costs associated with Estavilla's immigration to the United States. The Offer Letter explained that Village Health would "expend in excess of $20,000 USD to enable you to have this employment opportunity," with the "specific figure for the Advanced Amount to be determined following your completion of the RN Onboarding Program and any additional worksite orientation at the Facility." It further advised Estavilla that the Advanced Amount "is considered an advancement," but one half of the Advanced Amount would be forgiven after two years of employment with Village Health, and the remainder would be forgiven if she remained employed with Village Health for three years. Also relevant in the matter, the Offer Letter stated that "failure to make restitution or meet any of your obligations under the terms of this letter" would be reported "to the Department of Labor, Immigration and Naturalization Service and/or Immigration and Customs Enforcement Agency under applicable immigration fraud statutes." In addition, the Offer Letter contained a non-compete clause stating that if Estavilla did not remain employed for three years, she agreed that she would not work for "any health care or assisted living facility" in Montana "for a period of 12 months after termination of employment. Ms. Estavilla signed the Offer Letter on Aug. 21, 2015, and Village Health reaffirmed the offer on July 3, 2017. Estavilla moved to Montana and began working for Village Health on Nov. 6, 2017. Ms. Estavilla's obligation to repay the Advanced Amount was documented in a promissory note in the amount of $26,642.47. She alleges Village Health forced her to sign the Promissory Note, which contained provisions similar to those set forth in the Offer Letter. Estavilla further alleges that she signed the Promissory Note about three months after she moved to Montana, but at the request of Village Health she back-dated it to Nov. 6, 2017. She claims "this was the first time she learned that the funds were considered an 'advance' and not a gift or other consideration for her to uproot her life in the Philippines and move to Montana." Ms. Estavilla worked for Village Health until May 24, 2019, when her employment was terminated. Because Estavilla was terminated after having worked for only 18 months, Village Health demanded that Estavilla repay the Advanced Amount in full. Estavilla was unable to pay that amount, and in early October 2019 Village Health commenced a lawsuit against her in Minnesota state court (the "Previous Litigation"). Village Health asserted claims against Estavilla for breach of contract and, alternatively, for unjust enrichment. Estavilla, who was proceeding pro se at the time, answered and counterclaimed for wrongful termination of contract. She also alleged affirmative defenses of "failure of consideration" and "discrimination and harassment." Village Health prevailed on summary judgment, and on March 12, 2020 the Minnesota court entered judgment against Estavilla in the total amount of $28,353.45. In doing so, the court determined that the Offer Letter was a "valid, binding contract" and that Estavilla's counterclaim was not supported by any evidence. Estavilla did not appeal this decision. On May 11, 2021, Estavilla filed the putative class action in Montana state court on behalf of herself and others similarly situated. The Defendants removed the case to this Court on June 3, 2021 based on federal question jurisdiction and diversity jurisdiction pursuant to 28 U.S.C. Sections 1331, 1332, and 1441. Ms. Estavilla alleges federal forced labor and trafficking claims pursuant to the civil remedies provision of the Trafficking Victims Protection Reauthorization Act ("TVPA"), 18 U.S.C. Sections 1589, 1590, 1594(a)(b), 1595. She additionally alleges state law claims under Mont. Code Ann. Section 27-1-755, which permits a civil action under Montana's criminal statutes prohibiting human trafficking and involuntary servitude, Mont. Code Ann. Sections 45-5-702 and 45-5-703. Estavilla's Complaint also includes a declaratory judgment claim seeking a determination that the contractual venue and choice of law provisions contained in the Offer Letter are unenforceable. The Defendants move to dismiss under Rule 12(b)(6) on the ground that the Complaint fails to state a claim for relief. II. Discussion The Defendants maintain that Estavilla fails to state a claim for relief because: (1) the claims alleged in the Complaint were compulsory counterclaims that she should have asserted in the Minnesota state court litigation; and (2) the Complaint does not adequately allege the elements necessary to state a claim for relief under the TVPA or Montana law. A. Compulsory Counterclaims Ms. Estavilla makes three arguments in response. First, she maintains that Goodman cannot be dismissed because it was not a party to the Previous Litigation, which means she could not have asserted a counterclaim against it. Next, Estavilla contends that her claims in this case are based on a significantly broader set of aggregate operative facts, and so were permissive rather than compulsory counterclaims in the Previous Litigation. Finally, she argues that to the extent her human trafficking claims allege actual, rather than threatened, serious harm and abuse of legal process, they cannot be considered compulsory counterclaims because they did not exist until the Previous Litigation ended. First, taking the allegations in Estavilla's Complaint as true, Judge DeSoto holds that Goodman and Village Health are in privity with one another. Accordingly, she concludes that Goodman is an "opposing party" within the meaning of Rule 13(a) and Minnesota Rule 13.01. Second, Judge DeSoto finds that the trafficking claims alleged in the Complaint and the claims litigated in the Previous Litigation all stem from the same aggregate set of operative facts involving Estavilla's employment with Village Health and the terms of the Offer Letter and Promissory Note, as required to make them compulsory counterclaims. ot Finally, Judge DeSoto holds that while Section 1589(a) imposes liability for existing and threatened serious harm and abuse of legal process, Estavilla does not provide a basis for distinguishing between the two under the circumstances. Estavilla does not explain how any additional claims she might have asserted under subsections (2) and (3) after the Previous Litigation ended would have involved any different legal theories or potentially exposed Defendants to any additional liability. Because Estavilla could have asserted forced labor claims under Section 1589(a)(2) and (3) while the Previous Litigation was pending, those claims were mature for purposes of Minnesota Rule 13.01 and Fed. R. Civ. P. 13(a)(1). B. TVPA Claims Ms. Estavilla advances several claims under the TVPA's civil remedies provision, alleging that the Defendants violated the TVPA's prohibitions against forced labor under Section 1589, forced labor trafficking under Section 1590, attempt to engage in these offenses under Section 1594(a), and conspiracy to engage in these offenses under Section 1594(b). The Defendants argue these claims are subject to dismissal because Estavilla has not alleged sufficient facts to plausibly demonstrate that she was subjected to forced labor, as required to state a claim for relief under Sections 1589, 1590, and Sections 1594(a) & (b) of the TVPA. As to the Section 1589, Judge DeSoto first holds that even taking the allegations in the Complaint as true and considering them in combination, Estavilla has not alleged sufficient facts to plausibly state a claim for relief based on "serious harm or the threat of serious harm" within the meaning of Section 1589(a)(2) of the TVPA. Second she holds that because Estavilla has not alleged sufficient facts to plausibly demonstrate that she was subject to forced labor within the meaning of Section 1589(a), she fails to state a claim for relief under this section of the TVPA. Third, Judge DeSoto finds that the claim under 18 U.S.C. Section 1590 fails for the same reasons that Estavilla's claim under Section 1589(a) fails. Because Estavilla has not sufficiently alleged that she was subjected to forced labor, she has not stated a claim for relief under Section 1590. Finally, because Estavilla has not stated a claim for relief under Sections 1589 and 1590, she similarly fails to state a claim for relief under Section 1594. As to Montana law, Judge DeSoto finds that Estavilla's argument is foreclosed by the final judgment entered in the Previous Litigation, which has res judicata effect. Moreover, like Estavilla's claims under the TVPA, her state law human trafficking claims are compulsory counterclaims that she has waived by failing to bring them in the Previous Litigation because they all stem from the same aggregate set of operative facts involving Estavilla's employment with Village Health and the terms of the Offer Letter and Promissory Note. Finally, as to Declaratory Judgment, Estavilla's Complaint also includes a declaratory judgment claim seeking a determination that the contractual venue and choice of law provisions contained in the Offer Letter are unenforceable. Neither party addresses this claim in their briefs. Presumably, the parties agree that whether Estavilla's declaratory judgment claim survives dismissal depends entirely on whether any of her claims under the TVPA or Montana law also survive. III. Conclusion For the reasons she discussed, Judge DeSoto granted the Defendants' Motion to Dismiss. A full-text copy of the Court's Feb. 23, 2022 Order is available at https://tinyurl.com/bde598ze from Leagle.com. GREAT AMERICAN: Delaware Superior Court Dismisses Rodriguez Suit ---------------------------------------------------------------- In the case, ERNESTO RODRIGUEZ and ALAN HALL, Plaintiffs v. GREAT AMERICAN INSURANCE COMPANY, Defendant, C.A. No. N21C-11-051 JRS (Del. Super.), the Superior Court of Delaware granted GAIC's motion to dismiss the Complaint. I. Introduction The issue presented in the insurance coverage action is whether stockholder Plaintiffs who obtained a default judgment in class action litigation against the Defendant fiduciaries may assert a claim for coverage directly against the Defendants' director and officer liability ("D&O") insurer to collect on the default judgment. The insurer has moved to dismiss the Plaintiffs' prayers for declaratory relief on the grounds that the Plaintiffs lack standing to sue both as a matter of common law and under the express terms of the D&O policy. As for common law standing, the insurer points to the general rule in Delaware that an injured third-party may not bring a direct claim against a tortfeasor's insurer. As for standing under the policy, the insurer points to the policy's so-called "No Action Clause," which provides that "no action will be taken against the insurer unless, as a condition precedent thereto, there will have been full compliance with all terms of this Policy." According to the insurer, the insureds failed to comply with their obligations under the policy in several respects, which ultimately led to the court's entry of a default judgment against them. The Plaintiffs disagree and maintain they have standing to sue both as a matter of common law and under the terms of the D&O policy. II. Background Plaintiffs Rodriguez and Hall, are former stockholders of Zhongpin, Inc. On Oct. 11, 2019, the Plaintiffs were certified as class representatives on behalf of Zhongpin stockholders in a class action against Zhongpin fiduciaries, litigated over several years in the Delaware Court of Chancery. That action ended when the Plaintiffs obtained a default judgment against several of the defendant fiduciaries. Non-party, Zhongpin (or the "Company"), was a corporation organized and existing under the laws of Delaware. The Company's principal corporate offices were located in China. Non-party, Xianfu Zhu, a resident of China, was the de facto controlling stockholder of Zhongpin. The stockholder Plaintiffs alleged that Zhu and members of the Zhongpin board of directors breached their fiduciary duties when Zhu acquired Zhongpin in a going-private transaction that was the product of an unfair process resulting in an unfair price. The Plaintiffs initiated this declaratory judgment action in the Court of Chancery on May 20, 2020. According to the Complaint, the Default Judgment represents a Loss covered by the GAIC Policy. Specifically, the Plaintiffs allege they gave GAIC notice of the motion for default judgment when it was filed, spoke with GAIC's counsel in advance of the hearing on the motion, and "provided GAIC with a copy of the relevant pleadings." Upon obtaining the Default Judgment, the Plaintiffs made a demand for coverage upon GAIC but GAIC "has refused to honor its coverage obligations and has flatly denied coverage." GAIC moved to dismiss on July 21, 2020, and that motion was presented to the Court on May 13, 2021. After oral argument, the Superior Court raised, sua sponte, the question of whether the Court of Chancery could exercise subject matter jurisdiction over the Plaintiffs' claims. The parties submitted supplemental letter memoranda on the jurisdictional question and, on Oct. 20, 2021, the Superior Court issued a letter opinion dismissing the matter for want of subject matter jurisdiction. In doing so, it granted leave to the Plaintiffs to transfer the case to the Superior Court under 10 Del. C. Section 1902. The Plaintiffs filed their election to transfer on Nov. 1, 2021. The Superior Court was designated to sit as Superior Court judge pro tempore on Dec. 22, 2021. Thereafter, it deemed the motion to dismiss -- as filed, briefed and argued in the Court of Chancery -- submitted for decision in the Superior Court action as of Dec. 22, 2021. III. Analysis GAIC challenges the Plaintiffs' standing to sue on two grounds: (A) lack of standing as a matter of common law; and (B) lack of standing under the terms of the GAIC Policy. A. Common Law Standing In Delaware, as a general rule, an injured third-party may not bring a direct cause of action against a tortfeasor's insurer. "The rationale behind this rule appears to be simply that the courts feel that it would not be sound public policy to permit an insurer to be joined as a defendant in an action grounded upon the acts of the insured." More to the point, courts "do not want an insurer to be prejudiced by a jury's tendency to find the insured negligent or inflate damages based upon an insurer's deep pockets." To eliminate this risk, most jurisdictions, including Delaware, have determined that an injured plaintiff "does not have standing to bring an action against the tortfeasor's liability insurer." In Delaware, this general rule regarding standing is not absolute. Courts have recognized three theories upon which an injured third-party may pursue its claim for coverage directly against a tortfeasor's insurer: (1) where the third-party has received a valid assignment of the claim for coverage from the insured, (2) where the third-party is an intended third-party beneficiary of the insurance contract, or (3) through subrogation. The Plaintiffs maintain they have standing under the latter two theories. First, the Superior Court finds that it is difficult to view the Plaintiffs here as anything more than incidental beneficiaries who would benefit from the D&O coverage to the extent the Zhongpin insureds were found liable to the Plaintiffs and elected to pay the judgment with proceeds from the GAIC Policy. Because it is not reasonable to infer that the parties to the GAIC Policy at the time of contracting mutually intended for that coverage to benefit stockholder claimants, including the Plaintiffs, either as a matter of contract or as a matter of statutory mandate, the Plaintiffs cannot obtain standing as intended third-party beneficiaries. Next, the Superior Court holds that the best that can be said is that the law is unclear regarding whether a third-party may bring a direct action against an insurer for coverage on a theory of subrogation when equitable subrogation does not apply and the right cannot be traced to a statute or contract. Having identified the uncertainty in the law, it has determined that it need not tackle the difficult task of attempting to provide clarity. Even if the Plaintiffs are subrogated to the rights of the insureds, standing does not exist under the GAIC Policy because the insureds were not in compliance with the GAIC Policy, and thereby forfeited coverage, at the time the Default Judgment was entered. B. Standing Under the Policy The "concept of subrogation," even in the Plaintiffs' formulation, assumes "that the injured person stands in the shoes of the insured, with no greater and no lesser rights than the insured against the insurer. Consequently, if the insured cannot recover against the insurer, the injured person cannot do so." GAIC argues the Zhongpin insureds breached the GAIC Policy such that they, and in turn the Plaintiffs, have forfeited their rights to seek coverage. The Superior Court agrees. It opines that the Zhongpin insureds failed to pay their lawyers, as required by the GAIC Policy, and then disappeared. When ordered to secure new counsel or proceed in the litigation pro se, the insureds elected to do neither and instead did nothing. When given notice of the the Plaintiffs' intent to seek a default judgment, they sat silent and, by their silence, acknowledged liability. All the while, GAIC could do nothing to stop the defense train as it careened toward default judgment. This was not a case where the insured was an at-fault driver of an automobile who declined to participate in the defense of a personal injury claim brought against him. If that were the case, the insurer could engage counsel, admit fault and defend the claim (without the insured) on causation or damages. In the case, the Zhongpin insureds allegedly were conflicted fiduciaries who approved an unfair squeeze-out merger. The Plaintiffs argued these insureds bore the burden of proving the entire fairness of the Merger, a burden that would require them to demonstrate the fairness of both the process leading to the Merger and the price ultimately paid. This burden could not be sustained without the cooperation, indeed the full involvement, of the insureds. Rather than cooperate, though, the insureds disappeared, leaving GAIC to hold the bag. That was a material breach of the GAIC Policy that has resulted in obvious prejudice to GAIC. Under the No Action Clause, the Plaintiffs cannot maintain their action for coverage under these circumstances. IV. Conclusion The Superior Court concludes that under Delaware law, the plaintiffs could attain common law standing to bring a direct action against the insurer under an express assignment of the claim from the insured, as an intended third-party beneficiary of the insurance policy, or as a matter of subrogation. There is no express assignment in the case and the Plaintiffs have not well-pled a basis for the Court reasonably to infer that they are intended third-party beneficiaries of the D&O policy. Whether standing exists under a theory of subrogation is more complicated. The traditional bases to invoke subrogation rights are not present in the case. But there is authority, including Delaware cases and declarations in authoritative insurance law treatises, that supports the proposition that an injured third-party may have standing to bring a direct action against a liability insurer after a liability judgment has been entered against the insured. Unfortunately, the authority is neither well-developed nor well-explained, and it would appear the legal foundation for these declarations of standing under a modified notion of subrogation inevitably trace back to cases interpreting so-called "direct action statutes" that authorize third-party direct actions against the insurer, or cases interpreting language within an insurance policy that expressly reveals the insurer's intent to allow third-party direct actions. Neither circumstance exists in the case. Ultimately, the question of whether Delaware recognizes (or should recognize) a third-party's right to pursue coverage directly against an insurer under a common law theory of subrogation need not be resolved here. Even if the Plaintiffs were subrogated to the rights of the insureds, and could attain standing on that basis, the Superior Court opines that their standing falls away under the express terms of the D&O policy given the insureds' clear violations of their contractual obligations to the insurer. The insureds were required to defend themselves in the underlying litigation but failed to do so, resulting in material prejudice to the insurer. Since coverage would not be available to the insureds, it is not available to the Plaintiffs. The insurer's motion to dismiss, therefore, must be granted. Accordingly, GAIC's motion to dismiss the Complaint must be granted. A full-text copy of the Court's Feb. 23, 2022 Opinion is available at https://tinyurl.com/2bw4scbm from Leagle.com. Seth D. Rigrodsky, Esquire -- sdr@rl-legal.com -- Herbert W. Mondros, Esquire -- hwm@rl-legal.com -- and Gina M. Serra, Esquire -- gms@rl-legal.com -- of Rigrodsky Law, P.A., in Wilmington, Delaware; Donald J. Enright, Esquire and Elizabeth K. Tripodi, Esquire of Levi & Korsinsky, LLP, in Washington, D.C.; and Gustavo F. Bruckner, Esquire and Samuel J. Adams, Esquire of Pomerantz LLP, in New York City, Attorneys for Plaintiffs Ernesto Rodriguez and Alan Hall. Bruce E. Jameson, Esquire -- bejameson@prickett.com -- and John G. Day, Esquire -- jgday@prickett.com -- of Prickett, Jones & Elliott, P.A., in Wilmington, Delaware, and Edward C. Carleton, Esquire and Juan Luis Garcia, Esquire of Skarzynski Marick & Black LLP, New York City, Attorneys for Defendant Great American Insurance Company. GREAT ARROW: Class Settlement in Then Suit Wins Prelim. Approval ---------------------------------------------------------------- In the case, RAFAEL A. MOREL THEN, Plaintiff v. GREAT ARROW BUILDERS, LLC, Defendant, Case No. 2:20-CV-00800-CCW (W.D. Pa.), Judge Christy Criswell Wiegand of the U.S. District Court for the Western District of Pennsylvania granted the Plaintiff's Unopposed Motion for Preliminary Approval and Provisional Settlement Class Certification. I. Background Plaintiff Rafael Morel Then claims that Defendant Great Arrow Builders, LLC, violated the Fair Labor Standards Act ("FLSA") (Count I of the Third Amended Complaint) and the Pennsylvania Minimum Wage Act ("PMWA") (Count II of the Third Amended Complaint) by failing to include a "Site Allowance" in the "regular rate" it used to determine overtime compensation. He brings his FLSA claim as a collective action, and his PMWA claim as a putative class action under Fed. R. Civ. P. 23. The parties stipulated to conditional certification of the FLSA claim as a collective action under Section 216(b) of the FLSA after a period of discovery. They then proceeded to mediation, through which they reached a settlement that will resolve the claims of the Plaintiff and the putative class and collective action members. Notice to potential opt-in members of the FLSA collective was never disseminated by the parties. After resolving additional issues related to effectuating the settlement agreement, the Plaintiff submitted the instant unopposed Motion seeking preliminary approval of the proposed class-action and collective action settlement. In his Motion, the Plaintiff seeks an order: (1) entering the proposed Third Amended Complaint (TAC); (2) certifying a class pursuant to Federal Rule of Civil Procedure 23 for settlement purposes only; (3) approving the Parties' proposed class member notice; (4) preliminarily approving the settlement memorialized in the Settlement Agreement (Settlement Agreement); and (5) enjoining settlement class members from initiating lawsuits and staying any pending lawsuits relating to the overtime issues raised in the proposed TAC. Before addressing preliminary settlement approval and class certification, Judge Weigand will grant the Plaintiff's unopposed request for leave to file a Third Amended Complaint. She finds that good cause exists to docket the Plaintiff's Third Amended Complaint, which reasserts the previously removed PMWA claim, as contemplated by the parties, because the Third Amended Complaint clarifies the Rule 23 class component of the action and is a component of the parties' settlement agreement. II. Analysis According to the United States Court of Appeals for the Third Circuit in re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3d Cir. 1995), there is "an initial presumption of fairness when the court finds that (1) the negotiations occurred at arm's length; (2) there was sufficient discovery; (3) the proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of the class objected." A. The Court Will Preliminarily Approve the Proposed Settlement Applying the GMC factors, Judge Weigand opines that the proposed settlement here was reached in the context of mediation before a third-party neutral; thus, it appears to have been the product of arm's length negotiations. Next, the proposed settlement was reached after the parties conducted an initial phase of discovery aimed at conditional certification of the FLSA collective, which, although not full-blown merits discovery, allowed the parties sufficient opportunity to evaluate the claims, defenses, and potential range of damages in the case. Third, the parties are represented by competent counsel experienced in complex litigation. Fourth, because a class has not yet been certified, the fourth GMC factor -- the fraction of class members objecting to the settlement -- cannot be evaluated at this point. On balance, the GMC factors weigh in favor of preliminary approval, such that an initial presumption of fairness attaches. Next, after its initial review of the parties' submissions, the Court directed the parties to provide supplemental filings establishing that the proposed settlement "falls within the range of reason." It directed the parties to provide additional information because, "while te Plaintiffs' Motion articulates certain considerations that factored into the parties' negotiations -- e.g. availability of certain defenses, potential offsets to damages, etc.," the Court needed additional information to properly evaluate "(1) the range of potential recovery for the class and (2) the nature and extent of any alleged offsets." In response, the parties filed a supplemental brief detailing the potential recovery in the case. In summary, the supplemental information provided by the parties indicates that before application of any offsets, "the wages potentially due to each Class Member would be $4.76 in the average workweek." And, "in the Parties' pre-mediation sampling of 100 Class Members, the Parties found that 46 percent of wages due would be offset by contractual premiums already paid by the Defendant, reducing the average wages due to $2.57." Thus, "after employer-side taxes, attorney fees, administrative costs, and representative payments to the Plaintiff and Smith, the average regular-rate adjustment due to class members would be $2.52 per week, which is 98% of what they would receive after application of the offsets." Additionally, the "Class Members would receive $2.52 for any work week, including the 27% (on average) of those work weeks in which they did not work more than 40 hours." Having reviewed and evaluated the parties' submissions, Judge Weigand finds that, for purposes of preliminary approval, the proposed settlement appears to be "fair, reasonable and adequate." Furthermore, she finds that, with respect to the FLSA claims, the proposed settlement is a reasonable resolution of bona fide disputes, including, for example, "the proper regular rate of pay for purposes of calculating overtime and whether the Defendant's conduct was willful. The parties' proposed release of claims does merit some additional discussion, Judge Weigand holds. She says, the release would bind settlement class members who do not affirmatively opt-out of the settlement to the release of FLSA claims that they have not opted-in to in the first place. She will provide the parties with an opportunity to confer and submit an amended proposed settlement and/or notice form for approval, if they believe some revision to the proposed settlement agreement and/or supplemental notice is necessary or appropriate. Because "there are no obvious deficiencies and the settlement falls within the range of reason," and because the proposed settlement appears to be "a fair and reasonable resolution of a bona fide dispute over FLSA provisions," the Plaintiff's Motion for Preliminary Approval will be granted. B. The Court Will Provisionally Certify a Settlement Class For purposes of the proposed settlement, "the parties have stipulated, for settlement purposes only" to a class defined as follows: "All current and former Hourly Craft Union Workers employed by Defendant at any time from November 26, 2018 until the date the Court enters an order preliminarily approving this settlement and whose wages were paid pursuant to the terms of a labor agreement that required payment of a Site Allowance (the Settlement Class Members)." The parties agree that the proposed class "includes more than 12,000 individuals;" and therefore, Rule 23(a)'s numerosity requirement appears to be satisfied. In addition, Judge Weigand concludes for purposes of preliminary certification that the proposed class is ascertainable, given that each potential class member is identifiable through records kept by the Defendant. Next, the typicality requirement appears to be satisfied because the "Plaintiff and every Class Member share the same interest of recovering their allegedly unpaid overtime wages based on the same legal theory: That the Defendant's failure to include Site Allowance payments in its overtime calculations violated the FLSA and PMWA." Judge Weigand further concludes, for purposes of preliminary class certification, that the Plaintiff and the Plaintiff's counsel will adequately represent the class. Next, because the Plaintiff seeks preliminary certification of the proposed class pursuant to Rule 23(b)(3), Judge Weigand considers Rule 23(a)'s commonality and Rule 23(b)(3)'s predominance requirements together. She says the predominance requirement is met because all members of the putative class "were subject to the same uniform job expectations, standardized training materials, and operational protocols including guidelines surrounding Site Allowance payments" and all putative class members "were subjected to standardized payroll and timekeeping practices." Judge Weigand also finds that superiority is met because, as the Plaintiff points out, there is no evidence that the putative class members have any interest in maintaining the litigation in separate actions. Second, the benefits of concentrating the claims in the Court through the class action mechanism are evident because Defendant consents to the Court's jurisdiction, and many witnesses and class members are located in the district. Accordingly, Judge Weigand concludes that the proposed settlement class meets the criteria set forth in Rule 23(a) and Rule 23(b)(3) such that dissemination of notice, as proposed by the parties, is appropriate in the case. III. Conclusion For the foregoing reasons, Judge Weigand entered an Order (1) granting the Plaintiff leave to file his Third Amended Complaint, and deeming it to have been filed as docketed at ECF No. 62-1; (2) preliminarily approving the parties' proposed settlement; (3) preliminarily certifying a class under Rules 23(a) and (b)(3) for settlement purposes only, pursuant to Rule 23(e); (4) approving the parties' proposed form of notice; and (5) enjoining the settlement class members from initiating lawsuits and staying any pending lawsuits against the Defendant relating to the overtime issues raised in the Third Amended Complaint. A full-text copy of the Court's Feb. 23, 2022 Memorandum Opinion is available at https://tinyurl.com/yhzwvzdw from Leagle.com. HEALTH INSURANCE: Seeks Time Extension to Oppose Class Cert. Bid ---------------------------------------------------------------- In the class action lawsuit captioned as KENNETH J. MOSER, individually and on behalf of all others similarly situated, v. HEALTH INSURANCE INNOVATIONS, INC., a Delaware Corporation, NATIONAL CONGRESS OF EMPLOYERS, INC., a Delaware Corporation, COMPANION LIFE INSURANCE COMPANY, a South Carolina Corporation, DONISI JAX, INC. a/k/a NATIONWIDE HEALTH ADVISORS, a Florida Corporation, HELPING HAND HEALTH GROUP, INC., a Florida Corporation, ANTHONY MARESCA, an individual, and MATTHEW HERMAN, an individual, Case No. 3:17-cv-01127-WQH-KSC (S.D. Cal.), the Defendants ask the Court to enter an order extending their deadline to file oppositions to Plaintiff Kenneth J. Moser's motion for class certification by three weeks so that they can try to coordinate their respective opposition briefs into one consolidated, up-to-50-page opposition brief submitted on behalf of all Defendants in this case. On August 10, 2021, the Ninth Circuit vacated this Court's class certification order in its entirety. The parties thereafter attempted to resolve this matter through mediation, but were unsuccessful. On November 19, 2021, the Court set the following briefing schedule for class certification: -- Plaintiff's Motion: January 14, 2022. -- Defendants' Opposition: February 28, 2022. -- Plaintiff's Reply: March 30, 2022. Health Insurance Innovations is a product agnostic insurance technology platform. A copy of the Court's order dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3hxuOq0 at no extra charge.[CC] The Attorneys for the Defendant Donisi Jax, Inc., are: Jennifer L. Meeker, Esq. NOSSAMAN LLP S. Figueroa St 34th Floor Los Angeles, CA 90017 Telephone: (213) 612-7863 E-mail: jmeeker@nossaman.com The Counsel for Defendant National Congress of Employers, Inc., are: Keshav S. Nair, Esq. HEGELER & ANDERSON 4660 La Jolla Village Dr., Ste. 670 San Diego, CA 92122-4606 Telephone: (858) 597-9975 E-mail: knair@hegeler-anderson.com The Attorneys for Defendant Health Insurance Innovations, Inc., are: Anne M. Voigts, Esq. KING & SPALDING LLP 601 S California Ave, Ste. 100 Palo Alto, CA 94304-1101 Telephone: (650) 422-6710 E-mail: avoigts@kslaw.com The Counsel for Defendant Companion Life Insurance Company, are: Virginia B. Flynn, Esq. TROUTMAN SANDERS LLP Atlanta, GA Telephone: (704) 916-1509 E-mail; virginia.flynn@troutman.com HERC HOLDINGS: Ramirez Securities Suit Voluntary Dismissed ---------------------------------------------------------- Herc Holdings Inc. disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that a class action lawsuit against the company was dismissed after the plaintiffs filed a notice of voluntary dismissal with prejudice. "In re Hertz Global Holdings, Inc. Securities Litigation," in November 2013, a putative shareholder class action, "Pedro Ramirez, Jr. v. Hertz Global Holdings, Inc., et al.," was commenced in the U.S. District Court for the District of New Jersey naming Hertz Holdings and certain of its officers as defendants and alleging violations of the federal securities laws. On March 31, 2021, the plaintiffs filed with the U.S. District Court for the District of New Jersey a notice of voluntary dismissal with prejudice, and an order dismissing the case with prejudice was entered on April 1, 2021. Herc Holdings Inc. is a equipment rental supplier based in Florida. ICON Foundation: Joint Stipulated Order on Stay Motion Entered -------------------------------------------------------------- In the class action lawsuit captioned as Mark Shin v. ICON Foundation, Case No. 3:20-cv-07363-WHO (N.D. Cal.), the Hon. Judge William H. Orrick entered a joint stipulated order regarding stay motion as follows: (1) The Parties agree that, subject to the Court's entry of the Proposed Order below, the Foundation will not oppose the Stay Motion and, except as provided herein, this action will be stayed pending the resolution of the Colorado Criminal Action by verdict, judgment, dismissal of the indictment or other similar disposition of the pending criminal charges against Shin; (2) The parties agree that in the event that Shin makes any motion or application in any state or federal proceeding -- including but not limited to the Colorado Federal Action, the Colorado Criminal Action, or the Colorado Civil Forfeiture Action -- for the release, return or transfer to Shin of any or all of the Seized Assets (an "Asset Release Application"), or in the event that Shin receives advance notice that any or all of the Seized Assets are to be released, returned or transferred to Shin, counsel for Shin shall (a) provide notice to the Court in which Shin makes an Asset Release Application (or the Court or governmental authority in or from which Shin received notice of the potential release of the Seized Assets) of this Stipulation; and (b) provide notice to counsel for the Foundation as soon as reasonably possible after (but in no event more than 3 business days after) the filing of any such Asset Release Application or Shin's receipt of notice of an impending release, return or transfer of the Seized Assets in order to allow the Foundation sufficient time to oppose such motion, application, release or return and to seek a temporary restraining order, an injunction, the appointment of a trustee or receiver, or any other provisional relief with respect to such Seized Assets, and Shin shall have the right to oppose any such application by the Foundation for any reason other than the fact of the Parties’ stipulation; and (3) The Parties agree that the stay of this action does not extend to, and shall not prevent the Foundation from seeking a temporary restraining order, an injunction, the appointment of a trustee or receiver, or any other provisional relief with respect to any or all of the Seized Assets or Contested Assets. The parties shall file a status report with the Court describing any relevant developments every four months, beginning on June 22, 2022, the Court says. ICON Foundation supports the promotion and development of the ICON Project ("ICON" or "ICON Network"). A copy of the Court's order dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3tl5XLC at no extra charge.[CC] The Attorneys for Defendant and Counterclaimant ICON Foundation, are: Christopher L. Wanger, Esq. Misa K. Eiritz, Esq. MANATT, PHELPS & PHILLIPS, LLP One Embarcadero Center, 30th Floor San Francisco, CA 94111 Telephone: (415) 291-7400 Facsimile: (415) 291-7474 E-mail: cwanger@manatt.com meiritz@manatt.com - and - Jason Gottlieb, Esq. Michael Mix, Esq. MORRISON COHEN, LLP 909 Third Avenue New York, NY 10022-4784 Telephone: (212) 735-8600 Facsimile: (212) 735-8708 E-mail: jgottlieb@morrisoncohen.com mmix@morrisoncohen.com INDIA GLOBALIZATION: Faces Shareholder Suit in D. Md. ----------------------------------------------------- India Globalization Capital, Inc. (IGC) disclosed in its Form 10-Q Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that a class action was filed against the company alleging that defendants violated Section 10(b) of the Exchange Act, SEC Rule 10b-5, and Section 20(a) of the Exchange Act and made false and misleading statements to the public. On November 2, 2018, IGC shareholder Alde-Binet Tchatchou instituted a shareholder class action complaint on behalf of himself and all others similarly situated in the United States District Court for the District of Maryland captioned "Tchatchou v. India Globalization Capital, Inc., et al.,". On May 13, 2019, the plaintiff filed an amended complaint against IGC, Ram Mukunda, and Claudia Grimaldi. The plaintiff alleges that the Class Action Defendants violated Section 10(b) of the Exchange Act, SEC Rule 10b-5, and Section 20(a) of the Exchange Act and made false and misleading statements to the public by issuing a September 25, 2018, press release entitled "IGC to Enter the Hemp/CBD-Infused Energy Drink Space" and related disclosures, in which IGC announced it had "executed a distribution and partnership agreement" for the sugar-free energy drink named Nitro G, as well as through related public statements. On November 2, 2018, IGC shareholder Gabe Harris-Carr instituted a shareholder class action complaint on behalf of himself and all others similarly situated in the United States District Court for the District of Maryland captioned "Harris-Carr v. India Globalization Capital, Inc., et al.". IGC, Ram Mukunda, and Claudia Grimaldi were named as defendants. On February 28, 2019, all pending shareholder class actions were consolidated, and the Tchatchou litigation was designated as the lead case. India Globalization Capital, Inc. focuses on the application of phytocannabinoids to address efficacy for various ailments and diseases, based in Maryland. INDIA GLOBALIZATION: Securities Suit Over Energy Drink Consolidated ------------------------------------------------------------------- India Globalization Capital, Inc. (IGC) disclosed in its Form 10-Q Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that a class action was filed against the company alleging that defendants violated Section 10(b) of the Exchange Act, SEC Rule 10b-5, and Section 20(a) of the Exchange Act and made false and misleading statements to the public. On November 2, 2018, IGC shareholder Alde-Binet Tchatchou instituted a shareholder class action complaint on behalf of himself and all others similarly situated in the United States District Court for the District of Maryland captioned "Tchatchou v. India Globalization Capital, Inc., et al." On May 13, 2019, the plaintiff filed an amended complaint against IGC, Ram Mukunda, and Claudia Grimaldi. The plaintiff alleges that the Class Action Defendants violated Section 10(b) of the Exchange Act, SEC Rule 10b-5, and Section 20(a) of the Exchange Act and made false and misleading statements to the public by issuing a September 25, 2018, press release entitled "IGC to Enter the Hemp/CBD-Infused Energy Drink Space" and related disclosures, in which IGC announced it had "executed a distribution and partnership agreement" for the sugar-free energy drink named Nitro G, as well as through related public statements. On November 2, 2018, IGC shareholder Gabe Harris-Carr instituted a shareholder class action complaint on behalf of himself and all others similarly situated in the United States District Court for the District of Maryland captioned "Harris-Carr v. India Globalization Capital, Inc., et al.". IGC, Ram Mukunda, and Claudia Grimaldi were named as defendants. On February 28, 2019, all pending shareholder class actions were consolidated, and the Tchatchou litigation was designated as the lead case. India Globalization Capital, Inc. focuses on the application of phytocannabinoids to address efficacy for various ailments and diseases, based in Maryland. INTERCONTINENTAL CAPITAL: Class Cert Response Extended to March 11 ------------------------------------------------------------------ In the class action lawsuit captioned as Corrine Lucas v. Intercontinental Capital Group, Inc., Case No. 2:22-cv-00591 (E.D.N.Y.), the Hon. Judge Arlene R. Lindsay entered an order on motion for extension of time to answer. The time for Intercontinental Capital Group, Inc. to answer, move against or otherwise respond to the Complaint as well as the time to respond to the motion for conditional class certification is extended until March 11, 2022, says Judge Lindsay. The suit alleges violation of Fair Labor Standards Act involving denial of overtime compensation. Intercontinental Capital operates as a mortgage bank.[CC] INVITATION HOMES: Court Tosses Rivera Bid for Class Status ---------------------------------------------------------- In the class action lawsuit captioned as JOSE RIVERA, et al., v. INVITATION HOMES, INC., Case No. 4:18-cv-03158-JSW (N.D. Cal.), the Hon. Judge entered an order denying motion for class certification and dismissing action; requiring response regarding sealing. The Court has considered the parties' papers, relevant legal authority, and the record in this case, and it finds this case suitable for disposition without oral argument. The Court vacates the hearing scheduled for February 25, 2022. The Plaintiff seeks to certify the following class in his motion for certification: "All of Defendant's and its predecessor entities' California tenants who were charged penalties or fees for paying rent deemed as late or deficient between May 25, 2014, and the date of class certification." The Plaintiff originally filed this putative class action on May 25, 2018, alleging that the late fees imposed by Defendant Invitation Homes pursuant to its uniform lease agreement violate California Civil Code section 1671, California's Unfair Competition Law, and the consumer protection laws of several other states. The Defendant moved to 25 dismiss, and the Plaintiff filed a First Amended Complaint in response. The Defendant again moved to dismiss. The Court granted the Defendant's motion to dismiss with leave to amend. On July 19, 2019, Rivera filed a Second Amended Complaint (SAC), which again challenged Invitation Homes' purportedly unlawful $95 late fee but added several out-of-state plaintiffs. A copy of the Court's order dated Feb. 18, 2021 is available from PacerMonitor.com at https://bit.ly/3Hzagbg at no extra charge.[CC] JAGUAR LAND: Bid to Certify Class Nixed as Moot in Block Suit ------------------------------------------------------------- In the class action lawsuit captioned as AMY BLOCK and VICTORYA MANAKIN, on behalf of themselves and the Putative Class, v. JAGUAR LAND ROVER NORTH AMERICA, LLC, Case No. 2:15-cv-05957-SRC-CLW (D.N.J.), the Hon. Judge Stanley R. Chesle entered an order: 1. granting Jaguar's motion for summary judgment; 2. judging in Jaguar's favor, against all Plaintiffs, on the Fourth, Fifth, and Sixth Counts of the Third Amended Complaint; and 3. denying as moot Plaintiffs' motion to certify class. Jaguar Land Rover manufactures luxury sedans, sports cars and SUVs. A copy of the Court's order dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3sxldWG at no extra charge.[CC] JEFFRY KNIGHT: Yan Seeks to Certify Class of Subcontractors ----------------------------------------------------------- In the class action lawsuit captioned as WAIMING YAN, individually, and on behalf of all others similarly situated, v. JEFFRY KNIGHT, INC., d/b/a KNIGHT ENTERPRISES, KNIGHT BROADBAND LLC, KNIGHT and JASON WELZ, Case No. 8:20-cv-00410-MSS-TGW (M.D. Fla.), the Plaintiff asks the Court to enter an order: 1. conditionally certifying this case as a collective action for the putative class of similarly situated: "All persons who worked for JEFFRY KNIGHT, INC., d/b/a KNIGHT ENTERPRISES, including any of its subsidiaries, affiliated or related companies such as Knight Enterprises SE LLC, as an independent contractor (aka Subcontractor) under the title of Cable Installer, Cable Installation Technician, Installation Technician, Cable Tech and/or any other job titles previously used to describe persons performing cable, internet or telephone installation work at any time between February 21, 2017 to April 10, 2020;" 2. requiring the Defendants to produce the names, addresses, telephone numbers, and email addresses of each putative class member; and 3. authorizing the Plaintiff to send notice of this action to all former Cable Installation Techs that worked for the Defendant within the preceding three years of the filing of this suit. On February 21, 2020, the Plaintiff Waiming Yan filed this collective action complaint against the Defendant Jeffry Knight, Inc. d/b/a Knight Enterprises ("JKI"), alleging that JKI willfully misclassified its workforce of Cable Installers or Cable Installation Technicians ("Cable Techs") as Independent Contractors, willfully failed to pay them overtime compensation and willfully failed to properly track and record their work hours in violation of the Fair Labor Standards Act ("FLSA"). On November 24, 2021, the Plaintiff filed his Amended Complaint adding additional defendants Knight Broadband LLC ("KBB"), Jeffry Knight and Jason Welz and thus necessitating the instant Renewed Motion for Conditional Certification. The Plaintiff is joined by 31 Cable Techs who worked in the Tampa Bay area, North Carolina, and South Carolina and all of whom ultimately reported to Defendant's corporate office in Clearwater, Florida. Yan worked as an independent contractor for Defendant from approximately March 2015 to January 2020. Yan and members of the putative class of Cable Techs each had the same standardized and routine job duties: installing cable, internet and telephone services primarily at residential locations. All Cable Techs had the same standardized and routine job requirements: installing cable, internet and telephone services at residential locations for Spectrum cable. Jeffry Knight, Inc., doing business as Knight Enterprises, provides integrated communications infrastructure solutions. A copy of the Plaintiff's motion to certify class dated Feb. 18, 2021 is available from PacerMonitor.com at https://bit.ly/35iCwBY at no extra charge.[CC] The Plaintiff is represented by: Mitchell Feldman, Esq. FELDMAN LEGAL GROUP 6916 W. Linebaugh Ave, #101 Tampa, FL 33625 Telephone: (813) 639-9366 Facsimile: (813) 639-9376 E-mail: mfeldman@flandgatrialattorneys.com LOUISVILLE COUNTY, KY: Scheduling Orders Amended in Scott --------------------------------------------------------- In the class action lawsuit captioned as ATTICA SCOTT, et al., v. LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, et al., Case No. 3:20-cv-00535-BJB-CHL (W.D. Ky.), the Hon. Judge Colin Lindsay entered an order granting the Parties' joint motion for extension of discovery deadlines and amending the Court's prior scheduling orders as follows: (1) Plaintiffs' motion for class April 22, 2022 certification shall be filed on or before: (2) The Parties shall complete all May 2, 2022 fact discovery on or before: (3) The Parties shall identify all experts in compliance with Fed. R. Civ. P. 26(a)(2): By Plaintiffs: June 13, 2022 By Defendants: July 25, 2022 (4) The Parties shall complete all August 22, 2022 expert discovery on or before: (5) The Parties shall file all October 7, 2022 Daubert/dispositive motions on or before A copy of the Court's order dated Feb. 16, 2021 is available from PacerMonitor.com at https://bit.ly/35lxKmS at no extra charge.[CC] MADE BY HAVEN: CMP & Scheduling Order Entered in Tavarez-Vargas --------------------------------------------------------------- In the class action lawsuit captioned as CARMEN TAVAREZ-VARGAS, Individually, and On Behalf of All Others Similarly Situated, v. MADE BY HAVEN, INC., Case No. 1:21-cv-09915-LJL (S.D.N.Y.), the Hon. Judge Lewis J. Liman entered a case management plan and scheduling order as follows: -- Any motion to amend or to join May 17, 2022 additional parties shall be filed no later than: -- Initial disclosures pursuant to May 1, 2022 Rule 26(a)(1) of the Federal Rules of Civil Procedure shall be completed no later than: -- All fact discovery is to be June 15, 2022 completed no later than: -- Initial requests for production May 1, 2022 of documents shall be served by: -- Depositions shall be completed by: May 16, 2022 -- Requests to Admit shall be served May 30, 2022 no later than: -- All discovery shall be completed August 8, 2022 no later than: A copy of the Court's order dated Feb. 18, 2021 is available from PacerMonitor.com at https://bit.ly/3vx2oF3 at no extra charge.[CC] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, 24th Fl New York, NY 10281 Telephone: (347) 284-0146 E-mail: mizrahikroub.com The Defendant is represented by: Karla Del Pozo Garcia, Esq. DENTONS Telephone: (212) 768-5320 E-mail: karla.delpozogarcia@dentons.com MDL 2901: Suit Over Marketing of Ford Ranger Fuel Economy Tossed ---------------------------------------------------------------- In the case, IN RE: FORD MOTOR CO. F-150 AND RANGER TRUCK FUEL ECONOMY MARKETING AND SALES PRACTICES LITIGATION, Case No. 2:19-md-02901 (E.D. Mich.), Judge Sean F. Cox of the U.S. District Court for the Eastern District of Michigan, Southern Division, issued an Opinion & Order granting the Defendant's motion to dismiss. I. Background The Judicial Panel on Multidistrict Litigation transferred several putative class actions to the Court for coordinated pretrial proceedings. At this juncture, the operative complaint is the Plaintiffs' First Amended Consolidated Master Class Action Complaint, wherein the Plaintiffs assert a variety of state-law claims under the laws of 50 states, and a related federal claim, against Defendant Ford. The First Amended Consolidated Master Class Action Complaint spans nearly a thousand pages and includes 311 counts. The Plaintiffs bring the action individually and on behalf of all other current and former owners or lessees of the Coastdown Cheating Vehicles. They seek damages, injunctive relief, and equitable relief for Ford's misconduct related to the design, manufacture, marketing, sale, and lease of the Coastdown Cheating Vehicles, as alleged in this Complaint." The Plaintiffs' First Amended Consolidated Master Class Action Complaint ("FAC"), filed on Aug. 21, 2020, which now spans nearly a thousand pages and includes three hundred and eleven counts, is the operative complaint. The FAC includes named Plaintiffs from the following 28 states: Alabama, Arizona, California, Florida, Georgia, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin. There are no named Plaintiffs who assert claims under the law of the remaining 22 states. The Plaintiffs allege that "Ford deliberately miscalculated and misrepresented factors used in vehicle certification testing in order to report that its vehicles used less fuel and emitted less pollution than they actually did. The certification test-related cheating centers on the "Coastdown" testing and "Road Load" calculations. "The Coastdown test results are sent by Ford to the EPA to be used as the basis for mileage information used on window stickers, also called a 'Monroney sticker.'" The Plaintiffs allege that Ford's "March 2019 Securities and Exchange Commission filing revealed that it is under criminal investigation by the United States Department of Justice for its emissions certification practices." They further allege that in "September 2018, several Ford employees expressed concerns about the testing practices at Ford pertaining to emissions and fuel efficiency. In February 2019, Ford admitted it was looking into these concerns about its 'computer-modeling methods and calculations used to measure fuel economy and emissions.'" The Plaintiffs allege that, as a result of Ford's "unfair, deceptive, and/or fraudulent business practices, the Plaintiffs did not receive the fuel efficiency that was advertised and will incur increased fuel costs over the life of their vehicle. Had Ford told the truth, that it was cheating on its coastdown testing, Plaintiffs would not have bought their vehicle or would have paid substantially less." The FAC asks the Court to certify a "Nationwide Class" that would consist of "all persons who purchased or leased a Ford vehicle whose published EPA fuel economy ratings, as printed on the vehicles' window sticker, were more than the fuel economy rating produced by a properly conducted applicable federal mileage test. The vehicles in the Class include but are not limited to the model year 2019 and 2020 Ford Ranger and the 2018, 2019, and 2020 Ford F-150." The FAC also asks the Court to certify 50 subclasses, one for each of the states in the United States (ie, an "Alabama Subclass," an "Alaska Subclass," etc.). The FAC contains 311 separate counts, consisting mostly of state-law claims, that are organized by subclasses. That is, the FAC first asserts all of the causes of action brought on behalf of the Alabama subclass under Alabama law, and then does the same for each of the proposed subclasses. It then asserts five counts as a "Nationwide Class." The FAC's request for relief asks this Court to certify the case as a class action. It also asks the Court to declare that Ford's conduct is "unlawful, unfair, and deceptive." It further asks the Court to require that "all Class members be notified about the lower fuel economy ratings and higher emissions at Ford's expense" and provide "correct fuel economy and emissions ratings" to Class members. The FAC also seeks an award of compensatory and exemplary damages, "disgorgement of all profits wrongfully received by Ford for the Coastdown Cheating Vehicles," and an award of statutory penalties. The matter is currently before the Court on Ford's Motion to Dismiss. The parties have extensively briefed the issues and the Court heard oral argument on June 17, 2021. The central argument presented in Ford's motion is that the Plaintiffs' claims are preempted under federal law. II. Analysis A. Plaintiffs' Claims Are Preempted By Federal Law. As its opening and central argument, Ford asserts that all of the Plaintiffs' claims in this action are preempted under federal law and must be dismissed. Judge Cox agrees. First, he opines that the Plaintiffs have not directed the Court to any case wherein a court has ruled that claims based upon those kind of allegations are not expressly preempted by federal law. Moreover, Ford persuasively argues that it used the EPA fuel estimates of its vehicles in the very way the EPA contemplated they would be used -- to compare the estimated fuel economy of different vehicles. For these reasons, Judge Cox concludes that all of the Plaintiffs' claims in this action, that are based upon Ford's alleged use of the EPA mileage estimates in the Monroney stickers and in its challenged advertisements, are preempted under federal law and will be dismissed on that basis. Given this ruling, JUdge Cox need not address Ford's alternative or additional challenges raised in the pending motion. Second, Judge Cox holds that the federal government, through the EPA, and at direction of Congress, has established a comprehensive set of statutes and regulations to further the federal objective of providing consumers with uniform and comparable fuel economy information. He agrees with Ford that the Plaintiffs' state-law claims in the case -- that they admit would require Ford to construct and disclose to consumers an additional, supposed "true fuel economy" for their vehicles -- stand as an obstacle to the accomplishment and execution of that federal regime. B. Plaintiffs Lack Standing To Assert Claims Arising Under The Laws Of The States Where No Named Plaintiff Claims To Reside Or Have Been Injured. Ford's Motion to Dismiss includes alternative or additional arguments pertaining to standing. Among other things, Ford asserts that Plaintiffs lack Article III standing to assert claims arising under the laws of the twenty two states where no named Plaintiff claims to reside or have been injured. In response, the Plaintiffs assert that this challenge is premature and should be addressed later, at the class certification stage. The Court has addressed this very same challenge in other putative class actions. Judge Cox will follow that same approach and rules that the Plaintiffs lack standing to assert claims arising under the laws of the twenty two states where no named Plaintiff claims to reside or have been injured. Accordingly, the following counts are also subject to dismissal on this basis: Counts 7-12 (asserted under Alaska law), Counts 19-24 (asserted under Arkansas law), Counts 33-38 (asserted under Colorado law), Counts 39-44 (asserted under Connecticut law), Counts 45-50 (asserted under Delaware law), Counts 70-75 (asserted under Idaho law), Counts 82-87 (asserted under Indiana law), Counts 88-93 (asserted under Iowa law), Counts 94-99 (asserted under Kansas law), Counts 100-105 (asserted under Kentucky law), Counts 112-117 (asserted under Maine law), Counts 143-148 (asserted under Mississippi law), Counts 155-160 (asserted under Montana law), Counts 167-172 (asserted under Nevada law), Counts 173-178 (asserted under New Hampshire Law), Counts 185-190 (asserted under New Mexico law), Counts 198-203 (asserted under North Carolina law), Counts 204-209 (asserted under North Dakota law), Counts 234-239 (asserted under Rhode Island law), Counts 271-276 (asserted under Vermont law), Counts 289-294 (asserted under West Virginia law), and Counts 301-306 (asserted under Wyoming law). C. Plaintiff's Claims Are Also Barred By The Doctrine Of Primary Jurisdiction. Ford contends that even if the Court were to find that some claims in the FAC are viable, "it should nevertheless decline to exercise jurisdiction over the case under the doctrine of primary jurisdiction." It argues that the "EPA has primary jurisdiction regarding the accuracy of EPA-mandated fuel-economy estimates because their calculation is obviously within the EPA's special expertise and the Agency has a need to promote the uniformity of its administrative policy in this important area. T Judge Cox finds that the Plaintiffs do not assert claims about guarantees of real-world fuel economy performance. To the contrary, the only claims they raise in the case are the claims that the district court found were barred in C-Max I -- claims challenging the accuracy of Ford's EPA fuel economy estimates and Ford's disclosure of them. The case is about the accuracy of the EPA estimates. Judge Cox agrees with Ford that the claims in the action are barred by the doctrine of primary jurisdiction. D. Plaintiffs' Misrepresentation-Based Consumer Fraud And Consumer Protection Claims Fail For Additional Reasons. In addition to preemption, Ford's motion also challenges the Plaintiffs' consumer fraud and consumer protection claims and focus on their misrepresentation-based claims. The Plaintiffs misrepresentation-based claims can be divided into two categories: 1) claims based on materials that simply disclose EPA-mandated fuel-economy estimates; and 2) claims based upon representations other than EPA estimates. First, Judge Cox holds that the Plaintiffs do not appear to dispute that the authority Ford relies on, "stands for the narrow proposition 'that the mere use of EPA estimates, as opposed to any other supposed estimates of 'actual' fuel-economy, are not actionable.'" He concurs with that line of authority and rules that, to the extent that any of the consumer protection act claims are based upon materials that merely contain EPA-mandated fuel-economy estimates, those claims fail to state a claim. Second, Judge Cox the Plaintiffs have not alleged that Ford made any representations that the vehicles at issue would actually achieve the EPA-estimated figures under real-world conditions. Rather, the take issue with alleged statements wherein Ford stated that its vehicles were "best-in-class" or "most fuel efficient" -- comparative statements about ratings. Judge Cox concludes that the Plaintiffs have not sufficiently alleged a misrepresentation-based consumer protection claim against Ford. E. The Consumer Protection Claims Under The Law Of Several State's Laws Fail Due To Statutory Class-Action Bars. In addition to preemption, Ford asserts that several of the Plaintiffs' state consumer protection act claims fail as a result of statutory class-action bars. It notes that the "Alabama, Arkansas, Georgia, Louisiana, Mississippi, Montana, Ohio, South Carolina, Tennessee and Virginia consumer protection statutes preclude class actions or otherwise provide a private right of action exclusively for individuals acting in their own capacities. Ford claims that, as federal courts in the district have decided, this "means that Plaintiffs' claims under these statutes, seeking class-wide recovery, are inappropriate and subject to dismissal." In response, the Plaintiffs do not dispute that the consumer protection act statutes of the above-referenced states contain provisions that bar class actions. They contend, however, that Fed. R. Civ. P. 23 displaces such state statutory provisions in a diversity case like this one. Judge Cox opines that there is a split of authority on this issue. Several district courts within the Sixth Circuit -- including the Court -- have rejected the Plaintiffs' argument and enforced the statutory bars, citing Matanky v. Gen. Motors LLC, 370 F.Supp.3d 772, 987-99 (E.D. Mich. 2019); In re Packaged Ice Antitrust Litig., 779 F. Supp.2d at 663 n.4; McKinney v. Bayer Corp., 744 F.Supp.2d 733, 749 (N.D. Ohio 2010); Flores v. FCA US LLC, supra, at *23-24. He concludes that the Plaintiffs' representative claims brought under the consumer protection statutes of the following states are subject to dismissal on this basis: Alabama (Count 1), Georgia (Count 57), Louisiana (Count 106), Ohio (210), South Carolina (Count 240), Tennessee (Count 253), and Virginia (Count 277). F. Plaintiffs' Breach Of Contract Claims Are Also Subject To Dismissal Because Plaintiffs Do Not Allege The Existence Of An Enforceable Contract With Ford. Ford asserts that the Plaintiffs breach of contract claims against it should also be dismissed because the Plaintiffs do not allege the existence of an enforceable contract with Ford. The Plaintiffs barely respond to this challenge. They address this challenge in a single paragraph wherein they state that the "Plaintiffs alleged that they bought or leased a Ford vehicle from an authorized Ford dealership" and claim they need not allege a direct relationship with Ford to sufficiently plead their breach of contract claims against Ford." They do not attempt to explain how their allegations in the FAC are sufficient to state a breach of contract claim under any of the applicable states' laws. Judge Cox opines that the Plaintiffs have not identified a contract between the Plaintiffs and Ford in their allegations in the FAC and have not identified the term(s) of the alleged contract that were allegedly breached by Ford. As such, the Plaintiffs have failed to plead a plausible breach of contract claim against Ford. G. Plaintiffs' Express Warranty Claims Are Also Barred By Federal And State Laws. In addition to preemption, Ford contends that the Plaintiffs have failed to state any valid warranty-based claims in the FAC. The Plaintiffs allege that Ford made two different warranties: 1) the EPA fuel economy estimates on the Monroney label; and 2) the New Vehicle Limited Warranty ("NVLW"). Ford contends that both claims fail. Judge Cox agrees. First, he opines that the claims are barred by 49 U.S.C. Section 32908(d) that provides that a "disclosure about fuel economy or estimated annual fuel costs under this section does not establish a warranty under a law of the United States or a State." Second, he holds that the Plaintiffs pleaded a design defect that was not covered under the express warranty provided. He concludes that this is an additional ground for dismissal of the express warranty claims in the case. H. Plaintiffs' MMWA Claims Must Also Be Dismissed For Failure To Allege Sufficient Pre-Suit Notice. Count 307 of Plaintiffs' FAC asserts claims under the federal Magnuson-Moss Warranty Act ("MMWA). Ford contends that the Plaintiffs cannot sustain an MMWA claim. Among other things, Ford asserts that the Plaintiffs have failed to allege sufficient pre-suit notice. It argues that even if the Plaintiffs "had stated a viable warranty claim, their MMWA claim should still be dismissed because they failed to meet the Act's pre-suit notice requirements." Judge Cox holds that the language requiring notice in the MMWA is mandatory. The Plaintiff made the same futility argument that they make in the case. Thus, the Plaintiffs' failure to allege that they provided adequate pre-suit notice under the statute is an additional basis for dismissal of their MMWA count. I. Plaintiffs' Transactions Are Exempt From The Michigan Consumer Protection Act. In addition to preemption, Ford argues that the Plaintiffs' claims under the Michigan Consumer Protection Act (Count 130) also fail because their motor vehicle sales and lease transactions are exempt from the Act. In response, the Plaintiffs direct the Court to single district court decision wherein the court declined to make a ruling on this issue at the motion-to-dismiss phase, and choosing to revisit the issue on summary judgment. The Court very recently addressed this same issue in Gant v. Ford Motor Co., 2021 WL 364250 at *7-8 (E.D. Mich. Feb. 3, 2021), concluding that the exemption applies to motor vehicle sales. The Plaintiffs' claims under the Michigan Consumer Protection Act (Count 130 of the FAC) are subject to dismissal on this same basis, Judge Cox concludes. III. Conclusion and Order Judge Cox concludes that the Plaintiffs' claims are preempted under federal law, both express preemption and implied conflict preemption. In addition, he finds that several of Ford's additional or alternative arguments to have merit and rules that: 1) the Plaintiffs lack standing to assert claims arising under the laws of the 22 states where no named Plaintiff claims to reside or have been injured; 2) the Plaintiffs claims are barred under the doctrine of primary jurisdiction; 3) the Plaintiffs' misrepresentation-based consumer fraud and consumer protection claims fail for additional reasons; 4) the Plaintiffs' representative claims brought under the consumer protection statutes of several states are subject to dismissal based on statutory class-action bars; 5) the Plaintiffs' breach of contract claims are subject to dismissal because the Plaintiffs do not allege the existence of an enforceable contract with Ford; 6) the Plaintiffs' express warranty claims are also barred by federal and state laws; 7) the Plaintiffs' Magnuson-Moss Warranty Act claims must also be dismissed for failure to allege sufficient pre-suit notice; and 8) the Plaintiffs' transactions are exempt from the Michigan Consumer Protection Act. Accordingly, Judge Cox granted Defendant Ford's Motion to Dismiss. A full-text copy of the Court's Feb. 23, 2022 Opinion & Order is available at https://tinyurl.com/2jpy3caz from Leagle.com. MEDEX WASTE: Deadline for Filing Class Cert Bid Extended to May 23 ------------------------------------------------------------------ In the class action lawsuit captioned as Fianna Family Dentistry, PLC v. MedEx Waste, Inc., Case No. 2:21-cv-02136 (W.D. Ark.), the Hon. Judge P.K. Holmes III entered an order on motion for extension of time to complete discovery. The deadline for filing a motion for class certification is extended to May 23, 2022. -- Any response will be due 30 days after the filing of that motion. -- Any reply will be due 7 days after the filing of a response. -- All other deadlines in the Final Scheduling Order remain unchanged. The suit alleges violation of the Restrictions of Use of Telephone Equipment. MedEx Waste specializes medical and clinical waste disposal and transport. A copy of the Court's order dated Feb. 17, 2021 is available from PacerMonitor.com at at no extra charge.[CC] MESA AIR: Faces Securities Suits in Arizona Courts Over IPO ----------------------------------------------------------- Mesa Air Group, Inc. disclosed in its Form 10-Q Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that it is facing two putative class action lawsuits alleging federal securities law violations in connection with its initial public offering (IPO), one in the Superior Court of the State of Arizona and one in U.S. District Court of Arizona. These purported class actions were filed in March and April 2020 against the company, certain current and former officers and directors, and certain underwriters of the company's IPO. The state and federal lawsuits each make the same or similar allegations of violations of the Securities Act of 1933, as amended, for allegedly making materially false and misleading statements in, or omitting material information from, the IPO registration statement. The plaintiffs seek unspecified monetary damages and other relief. Mesa Air Group, Inc. is a regional air carrier based in Arizona. METROPOLITAN LIFE: McAlister, et al. File Class Certification Bid ----------------------------------------------------------------- In the class action lawsuit captioned as Catherine McAlister, Pauline Walker, Lee Kernan, Emily Ross, Scott Batey, Mary Trivett and Joan Brownell, on behalf of themselves and all others similarly situated, v. Metropolitan Life Insurance Company, MetLife Group, Inc. and the Metropolitan Life Insurance Company Employee Benefits Committee, Case No. 1:18-cv-11229-RA-OTW (S.D.N.Y.), the Plaintiffs ask the Court to enter an order: 1. Certifying a class, pursuant to Fed. R. Civ. P. 23(b)(1) (A), Rule 23(b)(1), (b)(2) or (b)(3), consisting of: "All participants (and their beneficiaries) that began receiving pension benefits (1) on or after January 1, 2013, (2) in the form of a joint and survivor annuity with a survivorship percentage between 50% and 100%, (3) whose benefit was calculated entirely using the Traditional Part's formula, and (4) not calculated under Section 4.02- A or 5.02-A of the Plan as of June 30, 2008;" 2. Appointing the Plaintiffs Lee S. Kernan, Joan S. Brownell, and Emily Ross to serve as class representatives; and 3. appointing Izard, Kindall & Raabe, LLP and Bailey & Glasser LLP as co-lead counsel for the Class. MetLife, Inc. is the holding corporation for the Metropolitan Life Insurance Company, better known as MetLife, and its affiliates. A copy of the Plaintiffs' motion to certify class dated Feb. 21, 2021 is available from PacerMonitor.com at https://bit.ly/3svhRDm at no extra charge.[CC] The Plaintiffs are represented by: Robert A. Izard, Esq. Douglas P. Needham, Esq. Seth R. Klein, Esq. Oren Faircloth, Esq. IZARD, KINDALL & RAABE LLP 29 South Main Street, Suite 305 West Hartford, CT 06107 Telephone: (860) 493-6292 Facsimile: (860) 493-6290 E-mail: rizard@ikrlaw.com dneedham@ikrlaw.com sklein@ikrlaw.com ofaircloth@ikrlaw.com - and - Gregory Y. Porter, Esq. Mark G. Boyko, Esq. BAILEY & GLASSER LLP 1054 31st Street, NW, Suite 230 Washington, DC 20007 Telephone: (202) 463-2101 Facsimile: (202) 463-2103 fax E-mail: gporter@baileyglasser.com mboyko@baileyglasser.com MINNESOTA: Karsjens' Remaining Claims Dismissed With Prejudice -------------------------------------------------------------- In the case, Kevin Scott Karsjens, David Leroy Gamble, Jr., Kevin John DeVillion, Peter Gerard Lonergan, James Matthew Noyer, Sr., James John Rud, James Allen Barber, Craig Allen Bolte, Dennis Richard Steiner, Kaine Joseph Braun, Christopher John Thuringer, Kenny S. Daywitt, Bradley Wayne Foster, Brian K. Hausfeld, and all others similarly situated, Plaintiffs v. Jodi Harpstead, Kevin Moser, Peter Puffer, Nancy Johnston, Jannine Hebert, and Ann Zimmerman, in their individual and official capacities, Defendants, Civil No. 11-3659 (DWF/TNL) (D. Minn.), Judge Donovan W. Frank of the U.S. District Court for the District of Minnesota dismissed with prejudice the Plaintiffs' remaining claims, Counts V, VI, and VII, in their third amended complaint. I. Background The Plaintiffs are individuals residing at the Minnesota Sex Offender Program ("MSOP") who are civilly committed under Minnesota Statute Section 253D, the Minnesota Civil Commitment and Treatment Act ("MCTA"). The 14 named Plaintiffs represent a class certified under Federal Rule of Civil Procedure 23(b)(2), consisting of "all patients currently civilly committed to the MSOP pursuant to Minn. Stat Section 253B." The Plaintiffs' lawsuit challenges the constitutionality of the MCTA on its face and as applied, as well as various aspects of the MSOP's operation and treatment regimen. Specifically, the Plaintiffs' Third Amended Complaint, filed on Oct. 28, 2014, asserts the following 13 claims: (I) Minnesota Statute Section 253D is facially unconstitutional; (II) Minnesota Statute Section 253D is unconstitutional as applied; (III) the Defendants have failed to provide treatment in violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution; (IV) the Defendants have failed to provide treatment in violation of the MCTA; (V) the Defendants have denied the Plaintiffs the right to be free from punishment in violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution; (VI) the Defendants have denied the Plaintiffs the right to less restrictive alternative confinement in violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution; (VII) the Defendants have denied the Plaintiffs the right to be free from inhumane treatment in violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution; (VIII) the Defendants have denied the Plaintiffs the right to religion and religious freedom in violation of the First and Fourteenth Amendments to the United States Constitution; (IX) the Defendants have unreasonably restricted free speech and free association in violation of the First Amendment to the United States Constitution and the Minnesota Constitution; (X) the Defendants have conducted unreasonable searches and seizures in violation of the Fourth Amendment to the United States Constitution and the Minnesota Constitution; (XI) the Defendants have violated court ordered treatment; (XII) the individual Defendants have breached the Plaintiffs' contractual rights; and (XIII) the individual Defendants have tortiously interfered with contractual rights and have intentionally violated Minn. Stat. Section 253B.03, subd. 7. On Feb. 2, 2015, the Court issued an order denying the Defendants' Motion for Summary Judgment on all counts in the Plaintiffs' Third Amended Complaint. The matter proceeded to trial in two phases. The Phase One bench trial, which encompassed Counts I, II, III, IV, V, VI, VII, and XI of the Third Amended Complaint, commenced on Feb. 9, 2015 and lasted nearly six weeks. At the time of the Phase One Trial, Minnesota had the highest per-capita population of civilly committed sex offenders in the nation. It also had the lowest rate of release from civil commitment in the nation. The cost of confining committed individuals at that time was $124,465 per resident per year --approximately three times the cost of incarcerating an inmate at a Minnesota correctional facility. The 14 named Plaintiffs in the case are all currently or were previously civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services ("DHS"). The Defendants are current or former administrators of the MSOP who are or were employees of the State of Minnesota. On June 17, 2015, the Court issued its Findings of Fact, Conclusions of Law, and Order, granting the Plaintiffs' request for declaratory relief on Counts I and II. It stated, "because the Court finds the program is unconstitutional on its face and as applied (Counts I and II), and because any remedy fashioned will address the issues raised in the remaining Phase One Counts, the Court need not address Counts III, V, VI, and VII." The Court noted that its "determination that the MSOP and its governing civil commitment statutes are unconstitutional concludes Phase One of this case." It also reiterated that "Counts VIII, IX, and X, will be tried in the second phase of trial ('Phase Two')." On Oct. 29, 2015, the Court issued a First Interim Relief Order directing injunctive relief to remedy its findings of unconstitutionality. The Defendants appealed the Court's Phase One and Injunctive Relief Orders to the Eighth Circuit. The Eighth Circuit reversed the Court's Phase One order and entered judgment in favor of the Defendants on Counts I and II. It also vacated the Court's Injunctive Relief Order and remanded the case for further proceedings on the remaining claims. The remanded Phase One claims included Counts III, V, VI, and VII of the Third Amended Complaint. Each claim arose under the due process clause of the Fourteenth Amendment and challenged Defendants' acts and omissions relating to the creation and implementation of various policies at the MSOP. Count III raised a failure-to-provide treatment claim. Counts V and VII challenged the conditions of confinement within the MSOP facilities, and Count VI alleged that denial of less restrictive alternative confinement was impermissibly punitive. In response to Karsjens I, the parties filed supplemental briefing on the remaining Phase One claims, and the Defendants moved for summary judgment on the Phase Two claims. On Aug. 23, 2018, the Court dismissed with prejudice the remaining Phase One claims under the "shocks the conscience standard." In the same Order, the Court granted the Defendants' motion for summary judgment and dismissed with prejudice the Phase Two claims as well. The Plaintiffs appealed the Court's ruling on the Phase One claims to the Eighth Circuit. On Feb. 24, 2021, the Eighth Circuit reversed the dismissal of Counts V, VI, and VII after finding that the Court applied the wrong legal standard and remanded the case again for further proceedings. While the "shocks the conscience standard" was appropriate for Counts I and II, the Eighth Circuit determined that the Court should have considered the claim of inadequate medical care part of Claim VII under the "deliberate indifference standard" outlined in Senty-Haugen v. Goodno, 462 F.3d 876, 889-90 (8th Cir. 2006), and the remaining claims under the standard for punitive conditions of confinement outlined in Bell v. Wolfish, 441 U.S. 520, 535 (1979). II. Discussion Upon careful review of the record and careful consideration of the parties' submissions, Judge Frank dismisses the Plaintiffs' remaining claims with prejudice. Specifically, he finds that the Plaintiffs' challenged conditions of confinement, even when considered as a whole, serve legitimate governmental objectives that are not excessive, arbitrary, or purposeless, and are not punitive under Bell. He also finds insufficient evidence to conclude that the Defendants were ever deliberately indifferent to any specific MSOP Client's serious illness or injury, much less at the policy level or on a widespread basis, or that any alleged indifference caused any actual injury or harm. While he recognizes the Plaintiffs' strong desire for greater independence and previously found aspects of the MSOP to be unconstitutional, Judge Frank holds that the Court is bound by the law as it currently exists and cannot conclude that the Plaintiffs have proven their remaining claims under the governing legal standards. The Court is bound by and obligated to follow the law as it currently exists. The Eighth Circuit has determined that the MSOP is constitutional both on its face and as applied. The Court now concludes that based on the governing legal standards, Plaintiffs' claims related to the conditions of confinement and inadequate medical care also fail. Notwithstanding, the confinement of the elderly, individuals with substantive physical or intellectual disabilities, and juveniles, who might never succeed in the MSOP's treatment program or who are otherwise unlikely to reoffend, remains of serious concern for the Court and should be for the parties as well. Judge Frank continues to believe that politics or political pressures should not compromise Class Members' rights to treatment and eventual reintegration into society. He re-emphasizes that the Constitution protects individual rights even when they are unpopular and reiterates Judge Sandra Day O'Connor's judicious observation that "a nation's success or failure in achieving democracy is judged in part by how well it responds to those at the bottom and the margins of the social order.'" The fact that the MSOP is constitutionally sound should not deter the State of Minnesota from doing better. The leaders in this great State are capable of more; there is no reason that Minnesota cannot, as the Rule 706 Experts advised, "refine its sexual offender civil commitment policies and procedures, with an aim towards providing humane and evidence-based clinical services to civilly committed clients, while maintaining a high degree of public safety." The interests of justice for all concerned would then be appropriately and finally served. Justice requires no less. Judge Frank says, it is truly unfortunate that after years of litigation, the parties have been unable to agree upon some sort of class-wide settlement to forestall the certain flood of litigation that is sure to follow the Order. As the Court has stated in a number of previous orders, all stakeholders in the criminal justice system and civil commitment system should come together and develop policies and pass laws that will not only protect the public safety and address the fears and concerns of all citizens, but will preserve the constitutional rights of civil detainees at the MSOP. There would then be all winners and no losers. Now is the time to do that. III. Order Based upon not only the findings and conclusions of the Court, but also the entire record of the case, Judge Frank dismissed with prejudice the Plaintiffs' remaining claims (Counts V, VI, and VII). A full-text copy of the Court's Feb. 23, 2022 Order is available at https://tinyurl.com/bdh5ft7v from Leagle.com. Daniel E. Gustafson, Esq. -- dgustafson@gustafsongluek.com -- Karla M. Gluek, Esq. -- kgluek@gustafsongluek.com -- and David A. Goodwin, Esq. -- dgoodwin@gustafsongluek.com -- Gustafson Gluek PLLC, counsel for the Plaintiffs. Aaron Winter, Scott H. Ikeda, and Brandon L. Boese, Assistant Attorneys General, Minnesota Attorney General's Office, counsel for the Defendants. NATIONAL SPINE: Third Amended Case Managment, Sched Order Entered ----------------------------------------------------------------- In the class action lawsuit captioned as SCOMA CHIROPRACTIC, P.A., a Florida corporation, individually and as the representative of a class of similarly-situated persons, v. NATIONAL SPINE AND PAIN CENTERS LLC, SPINE CENTER OF FL, LLC and PAIN MANAGEMENT CONSULTANTS OF SOUTHWEST FLORIDA, P.L., Case No. 2:20-cv-430-JLB-MRM (M.D. Fla.), the Hon. Judge Mac. R.McCoy entered third amended case management and scheduling order as follows: Deadline Date -- Discovery and Motions to Compel March 18, 2022 Discovery: -- Mediation: March 21, 2022 -- Motions for Class Certification April 18, 2022 (if applicable): -- Respond in opposition to a motion May 16, 2022 for class certification: -- Dispositive and Daubert Motions: June 2, 2022 -- Dispositive Final Pretrial Meeting: Aug. 24, 2022 -- Motions in Limine: Sept. 9, 2022 -- Joint Final Pretrial Statement Sept. 9, 2022 Proposed Jury Instructions and Verdict Form, and Trial Briefs (if applicable): -- Final Pretrial Conference: Sept. 23, 2022 -- Monthly Trial Term: Oct. 3, 2022 All other provisions of the Court's prior scheduling orders remain in effect, says Judge McCoy. National Spine provides health care services. A copy of the Court's order dated Feb. 18, 2021 is available from PacerMonitor.com at https://bit.ly/3IvrAz7 at no extra charge.[CC] NATIONAL WATERPROOFING: Harris Suit Seeks to Certify Collective --------------------------------------------------------------- In the class action lawsuit captioned as Darwin Harris, Jessie Blackwell and Jason Mccoy, Each Individually and on Behalf of All Others Similarly Situated, v. National Waterproofing & Roofing, LLC, and Kirk Poteet, Case No. Case 2:21-cv-01537-SPL (D. Ariz.), the Plaintiffs ask the Court to enter an order: A. Conditionally certifying this case as a collective action consisting of all: "hourly employees employed by Defendants within the three years prior to the filing of Plaintiffs' Original Complaint and to approve notice to those current and former employees;" B. Approving their proposed Notice and Consent to Join and proposed method of distribution including mailing and emailing; C. directing the Defendants to produce the requested contact information of each putative class member in an electronically importable and malleable electronic format, such as Excel, within seven days after this Court's Order is entered; D. Allowing for an opt-in period of 90 days, to begin when the Defendants produce the names and contact information for the class members, in which class members may submit Consents to Join this lawsuit as opt-in plaintiffs; E. Granting award costs and a reasonable attorney's fee and grant all other relief to which the Plaintiffs may be entitled, whether specifically prayed for or not. The Plaintiffs worked as hourly employees for the Defendants. The Plaintiffs brought this suit individually and on behalf of all other current and former hourly employees who worked for Defendants and who are similarly situated to Plaintiffs, to recover unpaid overtime wages, liquidated damages, prejudgment interest, and reasonable attorney's fees pursuant to Section 216(b) of the Fair Labor Standards Act (FLSA), and the minimum wage provisions of the Arizona Revised Statutes (ARS). A copy of the Plaintiffs' motion dated Feb. 17, 2021 is available from PacerMonitor.com at https://bit.ly/35AVvri at no extra charge.[CC] 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 E-mail: courtney@sanfordlawfirm.com NEOVASC INC: Golla Appeals Securities Suit Dismissal to 2nd Cir. ---------------------------------------------------------------- Plaintiff Pratap Golla filed an appeal from a court ruling entered in the consolidated amended complaint captioned In Re Neovasc Inc. Securities Litigation, Case No. 1:20-cv-09313, in the U.S. District Court for the Southern District of New York (White Plains). The consolidated complaint seeks to recover damages under the Securities Exchange Act of 1934 arising from the Defendants' issuance of false and misleading statements resulting to the precipitous decline in the market value of the Company's securities. It is brought on behalf of the Plaintiff and all persons and entities that purchased or otherwise acquired Neovasc securities between November 1, 2019 and October 27, 2020, inclusive. According to the complaint, in December 2018, the Company filed a Q-Sub submission to the U.S. Food and Drug Administration that contained safety and efficacy results from Neovasc's clinical studies of its products for cardiovascular diseases, including the Tiara technology and the Reducer, as well as supporting data from peer-reviewed journals. On February 20, 2019, Neovasc announced that, despite "Breakthrough Device Designation," the FDA review team recommended that the Company collect further pre-market blinded data prior to submitting a Pre-Market Approval (PMA) application. The complaint alleges that throughout the Class period, the Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the results of COSIRA, Neovasc's clinical study for the Reducer, contained imbalances in missing information present in the control group versus the treatment group, including significant missing information for secondary endpoints but none for the primary endpoint; (2) that the imbalance in missing information indicated that control subjects were aware of their treatment assignment (not blinded) and less inclined to participate in additional data collection; (3) that blinding is critical when studying a placebo-responsive condition such as angina; (4) that the lack of blinding assessment made the primary endpoint difficult to interpret; (5) that, as a result of the foregoing, the FDA was reasonably likely to require additional premarket clinical data; (6) that, as a result, the Company's PMA for Reducer was unlikely to be approved without additional clinical data; and (7) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. Last month, the consolidated amended complaint was dismissed in its entirety with prejudice and without leave to amend through an Order and Judgment signed by Judge Philip M. Halpern. The Plaintiff seeks a review of this ruling. The appellate case is captioned as IN RE NEOVASC INC. SECURITIES LITIGATION, Case No. 22-361, in the United States Court of Appeals for the Second Circuit, filed on Feb. 22, 2022.[BN] Plaintiff-Appellant Pratap Golla is represented by: Omar Jafri, Esq. POMERANTZ LLP 10 South LaSalle Street Chicago, IL 60603 Telephone: (312) 377-1181 E-mail: ojafri@pomlaw.com Defendants-Appellees Neovasc Inc., Fred Colen, Christopher Clark, Bill Little, and Shmuel Banai are represented by: Scott Michael Kessler, Esq. AKERMAN LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 880-3800 E-mail: scott.kessler@akerman.com NEW YORK, NY: District Court Dismisses Donohue Class Suit --------------------------------------------------------- In the case, PATRICK DONOHUE, et al., Plaintiffs v. KATHLEEN HOCHUL, et al., Defendants, Case No. 21-CV-8463 (JPO) (S.D.N.Y.), Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York dismissed the complaint and denied the Plaintiffs' motion for a preliminary injunction. I. Introduction The State of New York now generally requires schoolchildren to wear a mask, and the City of New York has generally enforced that requirement. Plaintiffs Patrick Donohue, Angela Nolan, and Marie Farrell are the parents of disabled schoolchildren in the City of New York -- S.J.D., S.N., and E.F., respectively. The Plaintiffs seek a declaration that the school mask mandate is unlawful, and they seek an injunction preventing various state and city officials and entities from implementing the requirement, in part for reasons related to the children's disabilities, and in part for other reasons. The Plaintiffs have moved for a preliminary injunction. The City Defendants -- nominally Mayor Bill de Blasio, Chancellor Meisha Porter, Commissioner Dave Chokshi, the New York City Department of Education, and the New York City Department of Health -- have moved to dismiss the complaint. Both the City Defendants and the State Defendants -- Governor Kathleen Hochul, Commissioner Howard Zucker, Commissioner Betty Rosa, Chancellor Lester Young, Jr., the New York Department of Health, the New York Department of Education, and the New York Board of Regents -- oppose a preliminary injunction. II. Background The Plaintiffs filed the class action complaint on Oct. 14, 2021. The 187-page complaint generally asserts three sets of claims. The first set asserts that the mask mandate violates the rights of disabled students under various federal statutes. The Plaintiffs contend that the mandate violates the Individuals with Disabilities Education Act ("IDEA") and Section 504 of the Rehabilitation Act because it contravenes the terms of the Plaintiffs' individual education plans. The Plaintiffs further contend that the Defendants violated Section 1415(j) of the Individuals with Disabilities Education Act when they enforced the mask mandate during the Plaintiffs' administrative proceedings. They contend that the mandate violates Title II of the Americans with Disabilities Act ("ADA") on the ground that a mask is an impermissible "restraint." And they contend that the mandate exceeds the terms of any authorization from the Food and Drug Administration. A second set of claims asserts that the mask mandate violates various federal constitutional rights. Among other things, the Plaintiffs contend that the mask mandate violates the First Amendment's Establishment Clause, the Fourth Amendment's prohibition on unreasonable searches and seizures, the Eighth Amendment's prohibition against cruel and unusual punishment, the Fourteenth Amendment's Due Process Clause, and the Fourteenth Amendment's Equal Protection Clause. The Plaintiff further asserts rights to family integrity, privacy, personal autonomy, and bodily integrity. In parallel, the Plaintiffs assert claims under 42 U.S.C. Section 1983. A third set of claims asserts causes of action under state law, including allegations that the mask mandate exceeds statutory authority under state law. The Plaintiffs also contend that the mandate violates New York's State Education Law Section 313, which prohibits discrimination in school admissions, and Title XI of the New York State Constitution, which obligates New York to maintain public schools. The City Defendants have moved to dismiss the complaint in part under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and, alternatively, in its entirety under Rule 12(b)(6) for failure to state a claim. The Plaintiffs have also moved for a preliminary injunction to enjoin the Defendants from further implementing a mask mandate for students enrolled in elementary and secondary schools in New York. III. Discussion Judge Oetken begins with the issue of standing under Article III to the Constitution, then turning to the merits of the Plaintiffs' federal statutory claims, federal constitutional claims, and state law claims. A. Standing The City Defendants first contend that the Court lacks subject-matter jurisdiction over the action on the ground that Plaintiff Patrick Donohue lacks standing under Article III to assert claims either on his own behalf or on behalf of his daughter, S.J.D. The City Defendants do not move to dismiss Plaintiffs Angela Nolan and Marie Farrell for lack of standing to bring claims on behalf of their children, S.N., and E.F., respectively, and it is clear that at least Marie Farrell has standing sufficient to satisfy Article III at this early stage. To satisfy Article III, a plaintiff must show "(i) that he suffered an injury in fact that is concrete particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief." The Plaintiffs stand in for their schoolchildren. The parties agree that Marie Farrell's daughter, E.F., wears a mask to school, and the complaint alleges that E.F. "currently has difficulty communicating" and that wearing a mask "would further inhibit her speech progress, triggering maladaptive behaviors, such as elopement, bouncing, screaming, etc." Further, the State Defendants have submitted a letter from E.F.'s pediatrician notifying her school that "it can be difficult for E.F. to wear a mask consis[tently] and for long periods of time." Judge Oetken holds that these materials adequately show that E.F. has an injury that would be alleviated by an injunction. B. Federal Statutory Claims The Plaintiffs seek to bring claims under the IDEA, the ADA, and the Federal Food, Drug, and Cosmetic Act. First, Judge Oetken opines that the allegations that the Defendants failed to provide students with a free and appropriate education under the IDEA do not state a claim. For the same reasons, derivative allegations that the Defendants violated Section 504 of the Rehabilitation Act also do not state a claim. Second, Judge Oetken holds that the mask mandates falls well within that discretion. Accordingly, allegations that the mask mandate violated Section 1415(j) do not state a claim. Third, the Plaintiffs have not identified any authority for the proposition that the ADA bars mandatory restraints, nor is that proposition reasonable, as the ADA does not bar restraints; it bars exclusion and discrimination. Moreover, a mask mandate does not impose a "restraint." The Plaintiffs emphasize that masks restrict "the movement of students' mouths, lips, and airways," but they do so only to the same extent that a school uniform restricts other movement. In general, "school boards have broad discretion in the management of school affairs," and that includes the discretion to restrict the movement of students by setting policies for arrival, attendance, suspension, removal, or daily wear. Hence, the Plaintiffs' ADA claims must be dismissed as well. Fourth, Judge Oetken opines that FDCA has no "private right of action" to "enforce alleged violations." Accordingly, there is no private right of action to enforce alleged violations of the emergency use authorization itself, as the private right of action to enforce an agency requirement "can extend no further than the personal right conferred by the plain language of the statute." Lacking a right of action under the statute, the Plaintiffs cannot leverage the emergency use authorization to invalidate the mask mandate. C. Federal Constitutional Claims The Plaintiffs assert that the mask mandate violates the Establishment Clause in two ways. First, they allege that "to enforce the state-wide mask mandate," Governor Kathleen Hochul "has taken to Churches and other houses of worship throughout the state, where she enlists the help and assistance of the congregations' members to impose and enforce her mandates on those who have not yet complied." Second, the Plaintiffs allege that the mask mandate advances humanism. As to First Amendment Claims, Judge Oetken holds that in any event, the Second Circuit has already concluded that those statements simply reflected "that the State wanted more people to obtain the vaccine out of a deep concern for public health, which is a religion-neutral government interest." Likewise, the Second Circuit has held that Governor Hochul's "expression of her own religious belief as a moral imperative to become vaccinated" in those statements "cannot reasonably be understood to imply an intent on the part of the State to target those with religious beliefs contrary to hers." Judge Oetken also holds that the Plaintiffs recite several statements made by Dr. Anthony Fauci, but none of the statements concern humanism, and in any event, the complaint contains no allegations that Dr. Fauci had any "meaningful role in establishing or implementing" New York's mask mandate. The other allegations associating the mask mandate with humanism are conclusory. Accordingly, the Plaintiffs have failed to state a claim that the mask mandate violated the First Amendment's Establishment Clause. The Plaintiffs' other asserted First Amendment claims fail as well Judge Oetken finds. The Plaintiffs assert that the mask mandate is impermissibly vague because it does not specify "what type of mask(s) should be worn," but Section 2.60(e) of the mandate provides that "face-coverings will include, but are not limited to cloth masks, surgical masks, and N-95 respirators that are worn to completely cover a person's nose and mouth," which is enough "to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits." The Plaintiffs assert that Defendants made "false speech" and "incited" a breach of the peace, but "false statements" and "incitement" are oft-discussed categories of unprotected speech under the First Amendment, not predicates for First Amendment violations. Accordingly, all of the Plaintiffs' First Amendment claims must be dismissed. As to the Fourth Amendment Claims, Judge Oetken further holds that the Plaintiffs have alleged only that the Defendants effected a mandate that students wear masks, not that Defendants ever applied "physical force to the body of a person with intent to restrain," made a "show of authority" that "in some way restrained the liberty" of a person, or otherwise made a "reasonable person" believe "that he was not free to leave." Accordingly, the Plaintiffs have not alleged any facts raising an inference that the Defendants ever made a seizure. As to the Eighth Amendment Claims, Judge Oetken rules that the Plaintiffs' Eighth Amendment claim must be dismissed. The Plaintiffs assert that the mask mandate violates the Eighth Amendment's proscription against "cruel and unusual punishment" but the Eighth Amendment "has no application" where, as in the instant case, "there has been no formal adjudication of guilt" like a conviction for a crime. With respect to Due Process Clause of the Fourteenth Amendment claim, Judge Oetken opines that because the complaint lacks allegations that students were ever "suspended, expelled, or otherwise excluded in any manner," the Plaintiffs have not stated a claim that the Defendants violated procedural due process. The Plaintiffs have not alleged facts suggested any deprivation of a protected interest. They have not alleged facts supporting a plausible inference that mask wearing infringes on a student's personal identity or beliefs. And the Plaintiffs have not adequately alleged that the mask mandate deprives students of their right to an education. As to Substantive Due Process Claims, the Plaintiffs fail to state a claim based on rights to family integrity or privacy. The complaint does not raise an inference that the mask mandate undermines the family or reveals private information; they only reference these rights, and such allegations are waived for lack of development. The Plaintiffs also do not state a claim based on personal autonomy or bodily integrity. They also fail to state a claim based on parental rights to direct education. Accordingly, the Plaintiffs' substantive due process claims must be dismissed as well. Regarding the Equal Protection Clause of the Fourteenth Amendment, Judge Oetken hold that the Plaintiffs' claims under the Equal Protection Clause must be dismissed as well. He holds that a mask mandate does not reflect the kind of change in "educational placement" that might trigger the stay-put provision. And to the extent that the Plaintiffs argue that the mask mandate, in effect, discriminates on the basis of disability, such laws "are subject to rational-basis review and upheld so long as there is a 'rational relationship between the disparity of treatment and some legitimate governmental purpose.'" Finally, Judge Oetken holds that the Plaintiffs' remaining federal claims fare no better. Because the Plaintiffs have not identified any deprivation, they cannot take advantage of Section 1983. The Plaintiffs also bring a claim under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 664 (1978), but a defendant can be held liable under Monell only if "its policy resulted in a violation of a plaintiff's constitutional rights." D. State Statutory and State Constitutional Claims Absent any federal claim, there is no justification for retaining jurisdiction over the Plaintiffs' remaining state claims, Judge Oetken opines. The Plaintiffs allege that the mask mandate exceeds statutory authority under state law, violates New York's State Education Law Section 313, and violates Title XI of the New York State Constitution. Judicial economy, convenience, fairness, and comity all bear on whether it is appropriate to exercise supplemental jurisdiction, and these factors counsel against retaining jurisdiction because all federal claims have been "eliminated in the early stages of litigation," and the Plaintiffs can bring their state claims in state court. Hence, the Plaintiffs' state law claims are therefore dismissed without prejudice. E. Preliminary Injunction Because the Plaintiffs have not stated any federal claim, and the Court does not retain jurisdiction over any state claim, Judge Oetken finds that there is also no basis for issuing a preliminary injunction. A preliminary injunction is proper only where a plaintiff shows "a likelihood of success on the merits," so where a complaint must be dismissed, a preliminary injunction will not issue. Accordingly, the Plaintiffs' motion for a preliminary injunction is denied. IV. Conclusion For the foregoing reasons, Judge Oetken granted the City Defendants' motion to dismiss the complaint, and dismissed the complaint is in its entirety. Because the defects with the complaint are substantive, and amendment would be futile, the federal claims are dismissed with prejudice. The state law claims are dismissed without prejudice to refiling in state court. The Plaintiffs' motion for a preliminary injunction is denied. The Clerk of Court is directed to close the motions at Docket Numbers 2 and 84 and to close the case. A full-text copy of the Court's Feb. 23, 2022 Opinion & Order is available at https://tinyurl.com/ycke7zhk from Leagle.com. NISSAN NORTH: Bid for Leave to File Reply to Opposition Sought -------------------------------------------------------------- In the class action lawsuit captioned as JOSE J. AYALA, JR. and JEFF SANTOS on behalf of themselves and as representatives of other class members similarly situated, v. NISSAN NORTH AMERICA, INC., Case No. 6:20-cv-01625-RBD-GJK (M.D. Fla.), the Plaintiffs ask the Court to enter an order granting their instant motion requesting Leave to Reply with any other relief that this Court may deem just and proper. On December 31, 2021, Plaintiffs filed their Rule 23 Motion for Certification. On February 14, 2022, the Defendant filed its Response in Opposition to Plaintiffs' motion. Nissan North is the North American headquarters, and a wholly owned subsidiary of Nissan Motor Corporation of Japan. A copy of the Plaintiffs' motion dated Feb. 22, 2021 is available from PacerMonitor.com at https://bit.ly/35COztE at no extra charge.[CC] The Plaintiffs are represented by: Jolynn M. Falto, Esq. ECLAT LAW, LLP 307 Cranes Roost Blvd., Suite 2010 Altamonte Springs, FL 32701 Telephone: (407) 636-7004 E-mail: kevin.ross@eclatlaw.com jfalto@eclatlaw.com NMCI MEDICAL: Parties in Kulik Stipulate to Continue Deadlines -------------------------------------------------------------- In the class action lawsuit captioned as BARBARA KULIK, JAMES ESKRIDGE, and MARY DUNNING GAROFALO individually and on behalf of all others similarly situated, v. NMCI MEDICAL CLINIC, INC., a corporation, Case No. 5:21-cv-03495-BLF (N.D. Cal.), the Parties ask the Court to enter an order granting their stipulation to continue hearing on plaintiffs' motion for conditional class certification and related deadlines, and toll Fair Labor Standards Act claims, as follows: -- Defendant's deadline to file a March 26, 2022 response to Plaintiffs' Motion for Conditional Class Certification be continued 30 days until: -- The Plaintiffs' deadline to file April 2, 2022 a reply in support of their Motion for Conditional Class Certification be 30 days until: -- The The hearing on Plaintiffs' June 5, 2022 Motion for Conditional Class Certification shall be continued until a date not sooner than: On July 13, 2021, the Plaintiffs filed their First Amended Complaint which included claims under the Fair Labor Standards Act ("FLSA") on behalf of similarly situated employees. On July 27, 2021, Defendant filed its answer to the First Amended Complaint on July 27, 2021. On August 11, 2021, the parties held their initial Rule 26(f) Conference and discussed Plaintiffs' anticipated filing of a Motion for Conditional Class Certification Pursuant to Section 216(b) of the FLSA, as well as their ADR options, in accordance with the Local Rules. A copy of the Parties' motion dated Feb. 21, 2021 is available from PacerMonitor.com at https://bit.ly/3hqIP95 at no extra charge.[CC] The Plaintiffs are represented by: Trenton R. Kashima, Esq. Jason J. Thompson, Esq. SOMMERS SCHWARTZ, PC 402 West Broadway, Suite 1760 San Diego, CA 92101 Telephone: (619) 762-2125 Facsimile: (619) 762-2127 E-mail: tkashima@sommerspc.com jtohompson@sommerspc.com The Defendant is represented by: William R.H. Mosher, Esq. Christine D. Baran, Esq. William R.H. Mosher, Esq. FISHER & PHILLIPS LLP 621 Capitol Mall, Suite 1400 Sacramento, CA 95814 Telephone: (916) 210-0400 Facsimile: (916) 210-0401 E-mail: cbaran@fisherphillips.com wmosher@fisherphillips.com OHIO SECURITY: Court Dismisses Forbidden Fruit Suit With Prejudice ------------------------------------------------------------------ In the case, FORBIDDEN FRUIT CIDERHOUSE, LLC dba 2 TOWNS CIDERHOUSE, an Oregon limited liability company, Plaintiff v. OHIO SECURITY INSURANCE COMPANY, a New Hampshire insurance company; and OHIO CASUALTY INSURANCE COMPANY, a New Hampshire insurance company, Defendants, Case No. 3:20-cv-00844-AC (D. Or.), Judge Karin J. Immergut of the U.S. District Court for the District of Oregon issued an order: a. denying the Plaintiff's Motion for Summary Judgment; b. granting the Defendants' Motion for Summary Judgment; and c. denying as moot the Defendants' Motion for Relief. On Jan. 5, 2022, Magistrate Judge John V. Acosta issued his Findings and Recommendation ("F&R"). The F&R recommends that the Court denies the Plaintiff's Motion for Summary Judgment, grants the Defendants' Motion for Summary Judgment, and denies as moot the Defendants' Motion for Relief. The Plaintiff filed objections to the F&R, to which the Defendants responded. The Plaintiff brings suit seeking a declaration that the Defendants breached their duty to defend and indemnify under commercial liability policies the Defendants issued to the Plaintiff, in relation to a class action filed against the Plaintiff in the U.S. District Court for the Southern District of California. The Plaintiff first objects to Judge Acosta's finding that "the Underlying Action does not allege 'bodily' injury or any physical injury, sickness or disease under the terms of the Policies," and thus that the "Defendants' duty to defend was not triggered." Second, it objects to Judge Acosta's determination that "the Underlying Action did not allege an 'occurrence' as defined in the Policies, and Defendants did not have a duty to defend." Upon a de novo review, Judge Immergut agrees with Judge Acosta's conclusions and adopts the F&R in full. "As a matter of law, the Underlying Action does not allege 'bodily injury' or any physical injury, sickness or disease covered under the terms of the Policies," nor does "the Underlying Action allege an 'occurrence' as defined in the Policies." Accordingly, the Defendants did not have a duty to defend or indemnify. For these reasons, Judge Immergut adopted Judge Acosta's F&R in full and dismissed the case with prejudice. A full-text copy of the Court's Feb. 23, 2022 Order is available at https://tinyurl.com/yjx689as from Leagle.com. OMNICOM GROUP: Class Certification Sought in ERISA Litigation ------------------------------------------------------------- In the class action lawsuit re Omnicom Group. Inc. ERISA Litigation, Case No. 20-cv-04141-CM (S.D.N.Y.), the Plaintiffs asks the Court to enter an order: 1. certifying this action as a class action; "All participants and beneficiaries in the Omnicom Group Retirement Savings Plan at any time on or after May 29, 2014 to the present, including any beneficiary of a deceased person who was a participant in the Plan at any time during the Class Period;" 2. appointing them as representatives of the proposed class; and 3. appointing their counsel as counsel for the Class The Plaintiffs are Carol Maisonette, Shane Tepper, Daniel Dise, Michael Mensack, and Surfina Adams. Omnicom Group Inc. is an American global media, marketing and corporate communications holding company, headquartered in New York City. Omnicom's branded networks and specialty firms provide services in four disciplines: advertising, customer relationship management, public relations and specialty services. A copy of the Plaintiff's motion to certify class dated Feb. 18, 2021 is available from PacerMonitor.com at https://bit.ly/3C4AOQv at no extra charge.[CC] The Plaintiffs are represented by: Laurie Rubinow, Esq. James E. Miller, Esq. Laurie Rubinow, Esq. MILLER SHAH LLP 65 Main Street Chester, CT 06412 Telephone: (860) 526-1100 Facsimile: (866) 300-7367 E-mail: jemiller@millershah.com lrubinow@millershah.com - and - James C. Shah, Esq. Alec J. Berin, Esq. Kolin C. Tang, Esq. MILLER SHAH LLP 1845 Walnut Street, Suite 806 Philadelphia, PA 19103 Telephone: (610) 891-9880 Facsimile: (866) 300-7367 E-mail: jcshah@millershah.com ajberin@millershah.com kctang@millershah.com - and - Mark K. Gyandoh, Esq. Gabrielle Kelerchian, Esq. Donald R. Reavey, 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 donr@capozziadler.com OPTIONS HOME: Initial Pretrial Order Entered in Mihocik Suit ------------------------------------------------------------ In the class action lawsuit captioned as EVAN MIHOCIK v. OPTIONS HOME SERVICES, LLC, Case No. 2:21-cv-04604-MHW-CMV (S.D. Ohio), the Hon. Judge Chelsey M. Vascura entered a preliminary pretrial order as follows: -- Motions or stipulations addressing April 15, 2022 the parties or pleadings, if any, must be filed no later than: -- Plaintiff's Motion for Conditional July 29, 2022 Certification shall be filed by: -- The Defendant's response in Aug. 26, 2022 opposition shall be filed by: -- The Plaintiff's reply shall be Sept. 9, 2022 filed by: -- All discovery related to May 17, 2022 conditional certification shall be completed by: The Plaintiff seeks to represent employees of Defendant, in both a collective action under the Fair Labor Standards Act (FLSA), and a class action under Federal Rule of Civil Procedure 23, on claims that the Defendant violated the FLSA and Ohio wage and hour laws by failing to pay overtime and minimum wages. Defendant denies the allegations. Options Home provides non-medical home care to the Columbus, Ohio, area. A copy of the Court's order dated Feb. 17, 2021 is available from PacerMonitor.com at https://bit.ly/3hlaND9 at no extra charge.[CC] PARADISE LESSEE: Order on Class Certification Bid Entered --------------------------------------------------------- In the class action lawsuit captioned as THUY THANH ALONZO v. PARADISE LESSEE, INC., Case No. 2:21−cv−08595−FMO−SK (C.D. Cal.), the Hon. Judge entered an order regarding motions for class certification as follows: -- Joint Brief: The parties shall work cooperatively to create a single, fully integrated joint brief covering each party’s position, in which each issue (or sub-issue) raised by a party is immediately followed by the opposing party's/parties' response. -- Unnecessary Sections: The parties need not include a "procedural history" section, since the court will be familiar with the procedural history. -- Evidentiary Appendix: The joint brief shall be accompanied by one separate, tabbed appendix of declarations and written evidence (including documents, photographs, deposition excerpts, etc.). -- Supplemental Memorandum: After the joint brief is filed, each party may file a supplemental memorandum of points and authorities no later than 14 days prior to the hearing date. Paradise Lessee is a local Eating Places business based in San Diego, California. A copy of the Court's order dated Feb. 17, 2021 is available from PacerMonitor.com at https://bit.ly/3BX2czS at no extra charge.[CC] PEMBER COMPANIES: O'Bryan Files Bid for Class Certification ----------------------------------------------------------- In the class action lawsuit captioned as RANDY O'BRYAN, on behalf of himself and all others similarly situated, v. PEMBER COMPANIES, INC., Case No. 3:20-cv-00664-jdp (W.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a class action against Crush City and authorizing notice be sent to members of the following classes: -- Travel Time Class: "All hourly-paid, non-exempt employees employed by the Defendant within the two years prior to this action's filing who, at any time during that period, travelled between the Defendant's "shop" and the jobsite (from the shop to the jobsite at the beginning of the workday and/or from the jobsite back to the shop at the end of the workday) in a vehicle owned by Defendant;" and -- Bonus Class: "All hourly-paid, non-exempt employees employed by the Defendant within the two years prior to this action's filing who received compensation in addition to their hourly wages, such as attendance incentivebonuses, profit sharing bonuses, and 8% annual bonuses." Pember Companies constructs and renovates municiple, public and private infrastructure utilities such as sani-sewer, water, storm and streat systems. A copy of the Plaintiff's motion to certify class dated Feb. 18, 2021 is available from PacerMonitor.com at https://bit.ly/3414lOD at no extra charge.[CC] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Telephone: (262) 780-1953 Facsimile: (262) 565-6469 E-mail: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com PG&E CORP: Court Stays Consolidated Class Action ------------------------------------------------ PG&E Corporation disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that a consolidated class action suit was filed against the company and its proceedings were stayed. In June 2018, two purported securities class actions were filed in the United States District Court for the Northern District of California, naming PG&E Corporation and certain of its then-current and former officers as defendants, entitled "David C. Weston v. PG&E Corporation, et al." and "Jon Paul Moretti v. PG&E Corporation, et al.," respectively. The complaints alleged material misrepresentations and omissions related to, among other things, vegetation management and transmission line safety in various PG&E Corporation public disclosures. The complaints asserted claims under Section 10(b) and Section 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, and sought unspecified monetary relief, interest, attorneys' fees and other costs. Both complaints identified a proposed class period of April 29, 2015 to June 8, 2018. On September 10, 2018, the court consolidated both cases, and the litigation is now denominated In re PG&E Corporation Securities Litigation, U.S. District Court for the Northern District of California, Case No. 18-03509. The court also appointed Public Employees Retirement Association as lead plaintiff. The latter filed a consolidated amended complaint on November 9, 2018. On December 14, 2018, it filed a second amended consolidated complaint to add allegations regarding the 2018 Camp fire. The proceedings were stayed as to PG&E Corporation and Pacific Gas and Electric Company. On February 22, 2019, a third purported securities class action was filed in the District Court, entitled "York County on behalf of the York County Retirement Fund, et al. v. Rambo, et al." (the "York County Action"). The complaint names as defendants certain then-current and former officers and directors, as well as the underwriters of four public offerings of notes from 2016 to 2018. Neither PG&E Corporation nor Pacific Gas and Electric Company is named as a defendant. The complaint alleges material misrepresentations and omissions in connection with the note offerings related to, among other things, PG&E Corporation's and Pacific Gas and Electric Company's vegetation management and wildfire safety measures. The complaint asserts claims under Section 11 and Section 15 of the Securities Act of 1933, and seeks unspecified monetary relief, attorneys' fees and other costs, and injunctive relief. On May 7, 2019, the York County Action was consolidated with In re PG&E Corporation Securities Litigation. On May 28, 2019, the plaintiffs in the consolidated securities actions filed a third amended consolidated class action complaint, which includes the claims asserted in the previously filed actions and names as defendants PG&E Corporation, Pacific Gas and Electric Company, certain current and former officers and former directors, and the underwriters. On August 28, 2019, the Bankruptcy Court denied PG&E Corporation's and Pacific Gas and Electric Company's request to extend the stay to the claims against the officer, director, and underwriter defendants. On October 4, 2019, the officer, director, and underwriter defendants filed motions to dismiss the third amended complaint, which motions are under submission with the District Court. The securities actions have been enjoined as to PG&E Corporation and Pacific Gas and Electric Company pursuant to the Plan with any such claims submitted through a proof of claim to be resolved by the Bankruptcy Court as part of the claims reconciliation process in the Chapter 11 Cases. On April 29, 2021, the District Court issued a notice of intent to stay this action pending completion of the claims procedures in the bankruptcy proceedings. Public Employees Retirement Association filed objections to the notice of intent to stay on May 28, 2021. PG&E Corporation and Pacific Gas and Electric Company filed a response to Public Employees Retirement Association's objections on June 10, 2021, the officer, director, and underwriter defendants filed a response to Public Employees Retirement Association's objections on June 11, 2021, and it filed a sur-response on June 21, 2021. The District Court has not taken further action with respect to its notice of intent to stay. PG&E Corporation is a holding company based in California. PG&E CORP: Dismissal of Power Outage Suit Under Appeal ------------------------------------------------------ PG&E Corporation disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that plaintiffs in a complaint filed in the United States Bankruptcy Court for the Northern District of California that involved PG&E Corporation filed an appeal on the dismissal of their complaint. On December 19, 2019, said complaint seeks certification of a class consisting of all California residents and business owners who had their power shut off by PG&E during the October 9, October 23, October 26, October 28, or November 20, 2019 power outages and any subsequent voluntary outages occurring during the course of litigation. The plaintiff alleges that the necessity for the October and November 2019 power shutoff events was caused by its negligence in failing to properly maintain its electrical lines and surrounding vegetation. The complaint seeks up to $2.5 billion in special and general damages, punitive and exemplary damages and injunctive relief to require PG&E to properly maintain and inspect its power grid. On January 21, 2020, PG&E Corporation filed a motion to dismiss the complaint or in the alternative strike the class action allegations. On March 30, 2020, the Bankruptcy Court granted its motion to dismiss this class action because the plaintiff's class action claims are preempted as a matter of law by the California Public Utilities Code. On April 3, 2020, the Bankruptcy Court entered an order dismissing the action without leave to amend. The plaintiff appealed the decision dismissing the complaint to the District Court. On March 26, 2021, the District Court affirmed the Bankruptcy Court's dismissal of this action, and the plaintiff filed a notice of appeal to the Ninth Circuit Court of Appeals. The appellant filed its opening brief on June 25, 2021. The Ninth Circuit Court of Appeals was asked to reverse the decision of the District Court and to remand the case for further proceedings. The answering brief of PG&E Corporation and the Utility was filed August 25, 2021. On September 1, 2021, a panel of the Ninth Circuit Court of Appeals heard oral argument and the plaintiff's appeal was heard on January 12, 2022. PG&E Corporation is a holding company based in California. PG&E CORP: Settlement in Vataj Suit Wins Final Nod -------------------------------------------------- PG&E Corporation disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that a final approval for the settlement was granted by the United States District Court for the Northern District of California on November 2, 2021. On October 25, 2019, a purported securities class action was filed in said court, entitled "Vataj v. Johnson et al." The complaint named as defendants a then-current director and certain then-current and former officers of PG&E Corporation. Neither PG&E Corporation nor Pacific Gas and Electric Company was named as a defendant. The complaint alleged materially false and misleading statements regarding PG&E Corporation's wildfire prevention and safety protocols and policies, including regarding Pacific Gas and Electric Company's PSPS events, that allegedly resulted in losses and damages to holders of PG&E Corporation's securities. The complaint asserted claims under Section 10(b) and Section 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, and sought unspecified monetary relief, attorneys' fees and other costs. On April 17, 2020, the plaintiffs filed an amended complaint asserting the same claims. The amended complaint added PG&E Corporation and a current officer of PG&E Corporation as defendants, and removed claims against certain current and former officers of PG&E Corporation previously named in the action. On February 16, 2021, the plaintiffs filed a motion with the District Court for preliminary approval of a proposed settlement. On November 2, 2021, the District Court entered an order granting final approval of the settlement, which is now effective. Pursuant to the settlement stipulation: (1) PG&E Corporation paid $10 million, and (2) plaintiffs and the Settlement Class (as defined in the stipulation of settlement) released the Released Persons (as defined in the stipulation of settlement, including PG&E Corporation and Pacific Gas and Electric Company, and each of their officers, directors, as well as the current and former officers named in both the original and amended complaints) from all claims that have been or could have been asserted by or on behalf of PG&E Corporation shareholders that relate to (a) allegations that were asserted or could have been asserted in either of the complaints in Vataj, and (b) investments in PG&E Corporation's stock during the relevant period specified in the stipulation of settlement. PG&E Corporation is a holding company based in California. PHYSICIANS WEALTH: Progressive Health Seeks to File Placeholder Bid ------------------------------------------------------------------- In the class action lawsuit captioned as Progressive Health and Rehab Corporation v. Physicians Wealth Solutions, LLC, et al., Case No. 2:22-cv-00505-SDM-EPD (S.D. Ohio), the Plaintiff seeks leave to file a "placeholder" motion for class certification. This case arises from apparent violations of the Telephone Consumer Protection Act ("TCPA"), a federal law that has been in effect for over twenty years. Under the TCPA, which was modified and renamed the Junk Fax Prevention Act ("JFPA") in 2005, it is unlawful to send unsolicited advertisements to someone's fax machine. According to the complaint, Progressive Health received advertisements via its office facsimile machine on December 2, 2021 and December 7, 2021 ("the Faxes") for products and/or services of Defendants Physicians Wealth Solutions, LLC and Intentional Excellence LLC. The Defendants had not sought Progressive Health’s permission to use its fax machine to transmit advertisements, and the Defendants’ Faxes did not display the required opt-out notice. Although the JFPA does provide for statutory damages, these damages are too minimal to justify a stand-alone lawsuit by an individual plaintiff. Consequently, Progressive Health has brought this action to recover on its own claim but also for the benefit of the class of persons to whom Defendants sent the Faxes, the lawsuit says. Physicians Wealth operates as a financial advisor firm. A copy of the Plaintiff's motion dated Feb. 21, 2021 is available from PacerMonitor.com at https://bit.ly/3K5qeM6 at no extra charge.[CC] The Plaintiff is represented by: Matthew E. Stubbs, Esq. MONTGOMERY JONSON LLP 600 Vine Street, Suite 2650 Cincinnati, OH 45202 Telephone: (513) 241-4722 Facsimile: (513) 768-9227 E-mail: mstubbs@mojolaw.com - and - Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: rkelly@andersonwanca.com PORTOLA PHARMACEUTICALS: ACERA, OFPRS Seek to Certify Class ----------------------------------------------------------- In the class action lawsuit captioned as ALAMEDA COUNTY EMPLOYEES' RETIREMENT ASSOCIATION and OKLAHOMA FIREFIGHTERS PENSION AND RETIREMENT SYSTEM, Individually and on Behalf of All Others Similarly Situated, v. PORTOLA PHARMACEUTICALS, INC.; SCOTT GARLAND; MARDI C. DIER; SHELDON KOENIG; HOLLINGS C. RENTON; JEFFREY W. BIRD; LAURA BREGE; DENNIS FENTON; JOHN H. JOHNSON; DAVID C. STUMP; H. WARD WOLFF; GOLDMAN SACHS & CO. LLC; CITIGROUP GLOBAL MARKETS INC.; COWEN AND COMPANY, LLC; WILLIAM BLAIR & COMPANY, L.L.C.; and OPPENHEIMER & CO. INC., Case No. 3:20-cv-00367-VC (N.D. Cal.), the Plaintiffs ask the Court to enter an order: (1) certifying this Action as a class action pursuant to Rule 23(a) and (b)(3); "All persons and entities who purchased or otherwise acquired common stock of Portola Pharmaceuticals, Inc. during the period from January 8, 2019 and February 28, 2020, inclusive (the "Class Period"), and were damaged thereby, including those who purchased Portola common stock traceable to Portola's Secondary Public Offering on or about August 14, 2019;" (2) appointing ACERA and OFPRS as Class Representatives pursuant to Rule 23(a) and (b)(3); and (3) appointing Berman Tabacco as Class Counsel pursuant to Rule 23(g). During the Class Period, Portola was a small pharmaceutical company with one main drug: the newly developed and novel Andexxa. Andexxa was a costly treatment marketed to treat serious, emergency bleeding disorders. The drug was the crutch for the Company's initial successes, and throughout the Class Period, Defendants touted Andexxa's "strong and growing" demand. Further, in its periodic SEC filings, press releases, and investors conference calls, Defendants repeatedly reported growing revenue attributed to Andexxa throughout most of the Class Period. In reality, the exceedingly expensive Andexxa was facing serious problems, including competition from much cheaper alternatives and widespread returns. Yet, as alleged, the Defendants grossly inflated Portola's revenue by booking sales without properly reserving for returns as required under GAAP, specifically ASC 606. As such, Plaintiffs alleged that the financials reported in widely distributed SEC filings and press releases (and discussed on investor conference calls) were materially misleading. A copy of the Plaintiffs' motion to certify class dated Feb. 17, 2021 is available from PacerMonitor.com at https://bit.ly/36MH7g9 at no extra charge.[CC] The Plaintiffs are represented by: Nicole Lavallee (SBN 165755) Daniel E. Barenbaum (SBN 209261) Jeffrey V. Rocha (SBN 304852) Jeffrey J. Miles (SBN 693869) Patrick T. Egan BERMAN TABACCO 44 Montgomery Street, Suite 650 San Francisco, CA 94104 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 E-mail: nlavallee@bermantabacco.com dbarenbaum@bermantabacco.com jrocha@bermantabacco.com jmiles@bermantabacco.com pegan@bermantabacco.com - and - David R. Kaplan, Esq. SAXENA WHITE P.A. 12750 High Bluff Drive, Suite 475 San Diego, CA 92130 Telephone: (858) 997-0860 Facsimile: (858) 369-0096 E-mail: dkaplan@saxenawhite.com QUINCY BOOTH: Court Certifies Settlement Class in Banks Suit ------------------------------------------------------------ In the class action lawsuit captioned as EDWARD BANKS, et al., v. QUINCY BOOTH, et al., Case No. 1:20-cv-00849-CKK (D.D.C.), the Hon. Judge Colleen Kollar-Kotelly entered an order: 1. granting the Plaintiffs' Unopposed Motion for Class Certification and Appointment of Class Counsel; and 2. certifying Edward Banks, Keon Jackson, Eric Smith, and D'Angelo Phillips as representatives of the settlement class pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure: -- The settlement class is certified as to all claims in this action and defined as all persons who were confined in the DOC Central Detention Facility (CDF) or Correctional Treatment Facility (CTF) for any amount of time from March 30, 2020, to the Expiration Date of the Settlement Agreement; and 3. appointing as class counsel Zoe Friedland, Jonathan Anderson, Jenna Cobb, and Hanna Perry from the Public Defender Service for the District of Columbia; Scott Michelman, Arthur Spitzer, and Michael Perloff from the American Civil Liberties Union Foundation of the District of Columbia; and Jacob Kreilkamp, Rachel Miller-Ziegler, and Brendan Gants from Munger, Tolles & Olson LLP. Central Detention Facility is a jail run by the District of Columbia Department of Corrections in Washington. A copy of the Court's order dated Feb. 18, 2021 is available from PacerMonitor.com at https://bit.ly/3Mbbltf at no extra charge.[CC] RADNET INC: Final Approval and Judgment Entered in Pfeiffer Suit ---------------------------------------------------------------- Judge R. Gary Klausner of the U.S. District Court for the Central District of California, Western Division, entered Final Approval Order and Judgment and Order in the case, NOREEN PFEIFFER, et al., on behalf of themselves and all other persons similarly situated, Plaintiffs v. RADNET, INC., a Delaware corporation, Defendant, Case No. 2:20-cv-09553 (RGK)(SK), Consolidated with Nos. 2:20-cv-10180 (RGK) (SK), 2:20-cv-10328 (RGK) (SK) (C.D. Cal.), On Aug. 18, 2021, the Court entered an order granting preliminary approval to the June 23, 2021 Settlement Agreement and Release between the Plaintiffs and Defendant RadNet. Commencing on July 19, 2021, pursuant to the notice requirements in the Settlement Agreement and the Preliminary Approval Order, American Legal Claim Services, LLC, provided Notice to Settlement Class Members in compliance with Section IX of the Settlement Agreement and the Notice Program, due process, and Rule 23 of the Federal Rules of Civil Procedure. On Feb. 7, 2022, Judge Klausner held a Final Approval Hearing. He finds that the Settlement Agreement is fair, reasonable, adequate and in the best interests of the Settlement Class Members. He granted final approval of the Settlement Agreement in full, including but not limited to the releases therein and the procedures for distribution of the Settlement Fund. All the Settlement Class Members who have not excluded themselves from the Settlement Class are bound by the Final Approval Order and judgment. The Parties will carry out their respective obligations under the Settlement Agreement in accordance with its terms. The relief provided for in the Settlement Agreement will be made available to the various Settlement Class Members submitting valid Claim forms, pursuant to the terms and conditions in the Settlement Agreement. Solely for purposes of the Settlement Agreement and the Final Approval Order and Judgment, Judge Klausner certified the following Settlement Class: "The 22,970 individuals residing in the United States of America who were identified for notification by RadNet that their personal information was or may have been implicated in the Security Incident." Judge Kalusner granted final approval to the appointment of Representative Plaintiffs Noreen Pfeiffer, Susan Wright, Jose Contreras, Kelly Lancaster, Annabelle Gonzales, Donna Horowitz, and Debra Palmer as the class representatives, and concludes that they have fairly and adequately represented the Settlement Class and will continue to do so. Judge Kalusner granted final approval to the appointment of the law firms of Casey Gerry Schenk Francavilla Blatt & Penfield, LLP; Morgan & Morgan; Federman & Sherwood; and Clayeo C. Arnold, A Professional Law Corporation as the Class Counsel. Judge Kalusner awarded Service Awards of $1,500 to Ms. Pfeiffer; $1,500 to Ms. Wright; $1,500 to Mr. Contreras; $1,500 to Ms. Lancaster; $1,500 to Ms. Gonzales; $1,500 to Ms. Horowitz and $1,500 to Ms. Palmer. The Settlement Fund, consisting of $2.6 million, will be used to pay all costs of the settlement, including all Awards and payments to the Settlement Class Members, costs of Claims Administration, the Attorneys' Fees, Costs and Expenses Award to Class Counsel, and the Representative Plaintiffs' Service Awards. If any money remains in the Settlement Fund after the calculation of all Settlement Payments to Settlement Class Members, costs of Claims Administration, the Attorneys' Fees, Costs and Expenses Award to Class Counsel, and the Representative Plaintiffs' Service Awards, the value of all payments for monetary compensation will be proportionally increased on a pro rata basis, pursuant to Paragraph 70(c) of the Settlement Agreement. Any such increase in monetary compensation is subject to the $15,000 individual aggregate cap, as provided in the Settlement Agreement. If any monies remain in the Net Settlement Fund more than 150 days after the distribution of Settlement payments to the Participating Settlement Class Members, or 30 days after all reissued Settlement Checks ate no longer negotiable, whichever occurs later or as otherwise agreed to by the Parties, the Parties will return to the Court seeking direction as to the disposition of these funds, including the selection of a Non-Profit Residual Recipient, pursuant to the Settlement Agreement. Judge Klausner dismissed the Action in its entirety with prejudice, and without fees or costs except as otherwise provided for in the Final Approval Order. He entered judgment in the matter pursuant to rule 58 of the Federal Rules of Civil Procedure. A full-text copy of the Court's Feb. 22, 2022 Final Order & Judgment is available at https://tinyurl.com/46hjacz2 from Leagle.com. RCI HOSPITALITY: Settlement Reached in Three Securities Suits -------------------------------------------------------------- RCI Hospitality Holdings, Inc. disclosed in its Form 10-Q Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that a Joint Notice of Settlement was filed on January 24, 2022 for three putative securities class action complaints filed against RCI Hospitality Holdings, Inc. and certain of its officers in the US District Court for the Southern District of Texas, Houston Division. The complaints alleged violations of the Securities Exchange Act. In May and June 2019, three putative securities class action complaints were filed against RCI Hospitality Holdings, Inc. and certain of its officers alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and 10b-5 promulgated thereunder based on alleged materially false and misleading statements made in the company's SEC filings and disclosures as they relate to various alleged transactions by the Company and management. The complaints sought unspecified damages, costs, and attorneys' fees. These lawsuits were "Hoffman v. RCI Hospitality Holdings, Inc., et al." (filed May 21, 2019, naming the Company and Eric Langan); "Gu v. RCI Hospitality Holdings, Inc., et al." (filed May 28, 2019, naming the Company, Eric Langan, and Phil Marshall (who is no longer an officer of the Company); and "Grossman v. RCI Hospitality Holdings, Inc., et al." (filed June 28, 2019, naming the Company, Eric Langan, and Phil Marshall). The plaintiffs in all three cases moved to consolidate the purported class actions. On January 10, 2020 an order consolidating the Hoffman, Grossman, and Gu cases was entered by the Court. The consolidated case is styled "In re RCI Hospitality Holdings, Inc., No. 4:19-cv-01841." On February 24, 2020, the plaintiffs in the consolidated case filed an Amended Class Action Complaint, continuing to allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and 10b-5 promulgated thereunder. In addition to naming the Company, Eric Langan, and Phil Marshall, the amended complaint also added former directors Nourdean Anakar and Steven Jenkins as defendants. On April 24, 2020, the company and the individual defendants moved to dismiss the amended complaint for failure to state a claim upon which reliefI HOSPITALITY: Jointly can be granted. On March 31, 2021, the court denied defendants' motion to dismiss the lawsuit. On April 14, 2021, defendants filed their answer and affirmative defenses, denying liability as to all claims. On June 14, 2021, a scheduling order was entered in the case, setting January 9, 2023 as the trial date. On December 22, 2021, an amended scheduling order was entered, extending the trial date to April 7, 2023 and extending all other case deadlines. In January 2022, the parties engaged in settlement discussions beginning with a formal mediation on January 13, 2022, which resulted in an agreement-in-principle to resolve the matter. The parties are in the process of negotiating a long-form settlement agreement, subject to preliminary and final court approval. On January 24, 2022, a Joint Notice of Settlement was filed, informing the District Court of the agreement-in-principle and the anticipation of executing a formal stipulation of settlement within 30 calendar days. RCI Hospitality Holdings, Inc. is a holding company based in Texas. RCI Hospitality Holdings, Inc. is into the restaurant business and is based in Houston TX. RENEW BODY: Yan Seeks to Amend Collective Action Complaint ---------------------------------------------------------- In the class action lawsuit captioned as Hong Yan, on behalf of themselves and all others similarly situated, v. Renew Body Wellness, Inc., NYC Renew Body Wellness, Inc, d/b/a Renew Body Wellness, Jun Li, Sam (true name is presently unknown), Leo (true name is presently unknown), John Does No. 1-10, Jane Does No. 1-10, and Company ABC No. 1-10, Case No. 1:20-cv-09401-GBD-SN (S.D.N.Y.), the Plaintiff asks the Court to enter an order: 1. Granting the plaintiff leave to amend the complaint and add new parties to this action; 2. Authorizing this matter to proceed as a collective action; 3. Authorizing mailing of the proposed notice to all potential Collective Action Members and tolling the limitations period on FLSA claims from the filing of this motion through the opt-in deadline; 4. Authorizing posting the notice at the defendant stores, and 5. Requiring Defendants to produce a list containing the names, addresses and telephone numbers of all such potential opt-in plaintiffs so that notice may be implemented. A copy of the Plaintiff's motion to certify class dated Feb. 17, 2021 is available from PacerMonitor.com at https://bit.ly/3BVrSgq at no extra charge.[CC] The Plaintiff is represented by: Aihong You, Esq. LAW OFFICE OF AIHONG YOU, PC 99 Hudson Street, 5th Floor New York, NY 10013 Telephone: (917) 412-3603 Facsimile: (732) 909-2214 E-mail: aihong.you@aihonglaw.com SQUARE INC: Court Grants Bid to Compel Arbitration in Thorne Suit ----------------------------------------------------------------- In the case, DEEANN THORNE, FLOR ALONZO, ROBIN CLEMENTS, and DEMETRIUS LOVETT, on behalf of themselves and all others similarly situated, Plaintiffs v. SQUARE, INC., and SUTTON BANK, Defendants, Case No. 20-CV-5119 (NGG) (TAM) (E.D.N.Y.), Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York granted the Defendants' motion to compel arbitration and dismissed the action with prejudice. I. Background Defendants Square, Inc. and Sutton Bank offer their users a mobile payment platform called "Cash App" and "Cash Card." The Plaintiffs allege that they were Cash App and Cash Card users, that funds were fraudulently withdrawn from their Cash App and Cash Card account by third parties, and that the Defendants' dispute resolution process to address their complaints is inadequate and improperly places the burden on the user to prove that a disputed transaction was unauthorized. As a result, the Plaintiffs assert causes of action on behalf of themselves and others similarly situated under the Electronic Fund Transfers Act, 15 U.S.C. Section 1693 and N.Y. Gen. Bus. Law Section 349. The Defendants respond that the Plaintiffs agreed to individually arbitrate any dispute involving their Cash App and Cash Card accounts. They now move pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. Section 1, et seq., to compel arbitration and dismiss the complaint. The Defendants submit declarations from Eric Muller and Chun Wah Wu, mobile engineers employed by Square who are familiar with Cash App and Cash Card services. Muller and Wu represent that the Defendants maintained records of when and how its users registered for its services. Thus, they could determine the date and the method by which each Plaintiff registered, e.g., by iPhone, Samsung Galaxy, or some other device. These declarations include screenshots of the relevant sign-up flow that each Plaintiff would have viewed when registering for Cash App and requesting a Cash Card. The Plaintiffs do not dispute the accuracy of these screenshots, and the Court accepts them as the true and accurate depiction of the sign-up interface the Plaintiffs viewed in registering for Cash App and requesting a Cash Card. The Defendants also ask the court to take judicial notice of archived webpages from the Wayback Machine of the terms of service in effect when each Plaintiff registered for Cash App and requested a Cash Card. The Plaintiffs neither dispute the accuracy of these archived pages, nor offer anything in rebuttal. The Court therefore joins the chorus of others and takes judicial notice of these archived webpages from the Wayback Machine as the relevant terms of service that the Plaintiffs would have respectively viewed when registering for Cash App and requesting a Cash Card. Each Plaintiff registered for Cash App and requested a Cash Card at different times, on different devices. Yet only Plaintiff Deeann Thorne's sign-up flow differed materially from her co-Plaintiffs Flor Alonzo, Robin Clements, and Demetrius Lovett, all of whom registered within the same period in 20204 and thus experienced a near-identical sign-up flow with substantially the same terms of service. II. Discussion The question is whether the Plaintiffs and the Defendants entered into a valid agreement to arbitrate. The answer turns on whether the Plaintiffs had reasonable notice of the Cash App and Cash Card terms of service and unambiguously manifested assent to them. Judge Garaufis finds that the Cash App and Cash Card sign-up flow presented the terms in a clear and conspicuous manner; the Plaintiffs were on inquiry notice of those terms; and the Plaintiffs unambiguously manifested assent to them. A. Application The Plaintiffs encountered "sign-in-wrap" agreements. Best described as a cross between "clickwrap" and "browsewrap" agreements, these wraps "do not require the user to click on a box showing acceptance of the 'terms of use' in order to continue." "Rather, the website or smartphone application is designed so that a user is notified of the existence and applicability of the site's 'terms of use' when proceeding through the website's or smartphone application's sign-in or login process." No matter the terminology, though, the same fundamental elements of contract law apply. To determine whether the Plaintiffs had reasonable notice of the terms of use and arbitration provision, and manifested assent to those terms, Judge Garaufis analyzes whether the Cash App and Cash Card sign-up flows put the Plaintiffs on inquiry notice of the terms of service. Inquiry notice depends on whether the design and content of those sign-up flows presented the hyperlinked terms of service in a clear and conspicuous manner, such that the Plaintiffs unambiguously manifested assent to those terms. As to Cash App, Judge Garaufis finds that a reasonable smartphone user would be on inquiry notice as to the Cash App General Terms of Service and arbitration provision therein, because the Cash App sign-up flow presented those terms in a clear and conspicuous way. He also finds Cash App's sign-up flow put the Plaintiffs on inquiry notice of the Cash App terms of service, and they unambiguously manifested assent to those terms. For those reasons, the Plaintiffs and the Defendant Square entered into an agreement to arbitrate. With respect to the Cash Card, Judge Garaufis holds that the terms make clear that Cash Card presented a different product, with different terms, with a different entity. Accordingly, he finds the Plaintiffs were on inquiry notice of the Cash Card terms of service, and because each Plaintiff pressed "Continue," and successfully ordered a Cash Card, each Plaintiff unambiguously manifested assent to those terms. For those reasons, he says, the Plaintiffs and Defendant Sutton Bank entered into an agreement to arbitrate. B. The Parties Delegated Questions of Arbitrability to the Arbitrator The parties can agree to delegate the threshold question of arbitrability to an arbitrator in addition to underlying merits disputes. The Second Circuit has found even broad language regarding the scope of an arbitration agreement to be a clear and unmistakable agreement to delegate questions of enforceability to an arbitrator, citing PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1199 (2d Cir. 1996). Judge Garaufis holds that all the Plaintiffs agreed to broad delegation provisions. The Cash Card provided equally broad terms to all the Plaintiffs. The Cash App and Cash Card arbitration provisions that the Plaintiffs agreed to with the Defendants serve as clear and unmistakable evidence of the parties' intent to delegate the threshold question of arbitrability to an arbitrator. In light of this broad delegation, any question of arbitrability is properly submitted to the arbitrator. III. Conclusion For these reasons, Judge Garaufis granted the Defendants' motion to compel and, because all questions of arbitrability are submitted to the arbitrator, he dismissed the action with prejudice. The Clerk of the Court is respectfully directed to enter judgment for the Defendants and close the case. A full-text copy of the Court's Feb. 23, 2022 Memorandum & Order is available at https://tinyurl.com/mr2scx88 from Leagle.com. STARBUCKS CORP: Class Certification Briefing Schedule Continued --------------------------------------------------------------- In the class action lawsuit captioned as LORI MYERS, v. STARBUCKS CORPORATION, MARS WRIGLEY CONFECTIONERY US, LLC; THE QUAKER OATS COMPANY; AND and DOES 1-10, inclusive, Case No. 5:20-cv-00335-JWH-SHK (C.D. Cal.), the Hon. Judge John W. Holcomb entered an order that Plaintiff's Motion for Class Certification and briefing schedule are continued as follows: 1. The Plaintiffs' deadline to file Sept. 23, 2022 their Motion for Class Certification is continued to: 2. The Defendant's Opposition to Nov. 17, 2022 the Plaintiff's Motion for Class Certification is continued to: 3. The Plaintiff's Reply in Support Dec. 30, 2022 of Motion for Class Certification is continued to: 4. The hearing for Plaintiffs' Motion Jan. 20, 2023 for Class Certification is continued to: Starbucks Corporation an American multinational chain of coffeehouses and roastery reserves headquartered in Seattle, Washington. A copy of the Court's order dated Feb. 17, 2021 is available from PacerMonitor.com at https://bit.ly/3hkMuFi at no extra charge.[CC] SUTTER BAY: Class Action Settlement Gets Final Nod in Mangrubang ---------------------------------------------------------------- In the class action lawsuit captioned as GINA MANGRUBANG v. SUTTER BAY HOSPITALS, Case No. 3:19-cv-03947-JCS (N.D. Cal.), the Hon. Judge Joseph Spero entered an order granting motion for final approval of class action settlement and granting in part motion for attorneys' fees and costs. -- Final Class Certification for Settlement Purposes Pursuant to Federal Rule of Civil Procedure 23(b)(3), the Court finally certifies a Settlement Class consisting of non-exempt respiratory therapists employed by Defendant between July 9, 2015 and July 30, 2021, at Sutter Santa Rosa Regional Hospital, Sutter Lakeside Hospital, and/or Sutter Novato Hospital, as defined in the Agreement, to be known as the "Settlement Class." -- Payment to Settlement Class The Settlement Administrator, Simpluris, shall cause payment to be issued to the Settlement Class Members pursuant to the terms for calculating Individual Settlement Payments as set forth in the Agreement and in accordance with the timing requirements of the Agreement. -- Service Award Payment to Plaintiff The Court finds that Gina Mangrubang is a suitable representative for the Settlement Class, and she is hereby appointed as the Class Representative. The Court finds that a Class Representative Service award in the amount of $7,500, is fair and reasonable compensation based upon the evidence presented regarding the services she provided and the risks she incurred in assisting Class Counsel. Although Plaintiffs requested a service award in the amount of $15,000, the Court finds that that amount is excessive. Although Ms. Mangrubang attests that she spent significant time investigating the facts of the case and communicating with class members and counsel, it is unclear how much time she spent on the reflect a relatively small amount of time billed for communications with Ms. Mangrubang. Nor is there any indication that she sat for a deposition. Therefore, the Court approves an award to Ms. Mangrubang of $7,500, to be paid in accordance with the Agreement. -- Attorneys' Fees to Class Counsel The Court confirms Marcus Petoyan and the firm of Geragos & Geragos, APC as Class Counsel in this action. The Court finds that Class Counsel have sufficient experience, knowledge and skill to promote and safeguard the interests of the class. Counsel has applied for an award of attorneys’ fees incurred in this Action in the amount of $150,000, representing 25% of the Gross Settlement Amount. The Court finds that this request is fair and reasonable based on the evidence presented, and thus Class Counsel's request for attorneys' fees is granted. The Court awards $150,000 to Class Counsel for its attorneys' fees incurred in this action the amount of $19,936.50. The Court finds that this request is fair and reasonable and is supported by the evidence presented. Therefore, the Court awards Class Counsel reimbursement of its costs. -- Litigation Costs Class Counsel has requested an award of costs incurred in this matter in the amount of $19,936.50, pursuant to the terms of the Agreement. -- Settlement Administration Expenses The Court confirms its approval of Simpluris, Inc. as the Settlement Administrator in this action. The Court finds that the requested administration cost of $3,500 is fair, reasonable, and appropriate for reimbursement. The Court therefore approves payment to Simpluris of this amount, which includes all costs and fees incurred to date as well as estimated costs and fees involved in completing the administration of the Settlement in accordance with the Settlement. Sutter Bay Hospitals operates as a non-profit health care organization. A copy of the Court's order dated Feb. 17, 2021 is available from PacerMonitor.com at https://bit.ly/3soQ4V5 at no extra charge.[CC] SYMETRA ASSIGNED: White Suit Seeks to Certify Class & Subclass -------------------------------------------------------------- In the class action lawsuit captioned as RENALDO WHITE and RANDOLPH NADEAU, individually and on behalf of all others similarly situated, v. SYMETRA ASSIGNED BENEFITS SERVICE COMPANY and SYMETRA LIFE INSURANCE COMPANY, Case No. 2:20-cv-01866-MJP (W.D. Wash.), the Plaintiffs ask the Court to enter an order: 1. certifying the Nationwide Class and the Nationwide Void Ab Initio Subclass: -- Nationwide Class: "All persons who are or were, at any time, annuitants of an structured settlement annuities (SSA) that contemplated life contingent payments issued by Symetra and who subsequently sold to a Symetra affiliate the right to receive payments from that SSA in a factoring transaction;" and -- Nationwide Void Ab Initio Subclass: "All members of the Class whose contract defining the annuity at issue included language explicitly stating that the annuitants lack the power to transfer their future SSA payments; and 2. appointing Keller Rohrback L.L.P., Edward Stone Law P.C., and Marcus & Auerbach LLC as Class Counsel. This action arises from the alleged fraudulent and deceptive business practices of the Defendants. By taking on the roles of issuer and owner of SSAs, the Defendants committed to safeguard the future financial well-being of personal injury victims through the provision of long-term, tax-free payment streams for needed medical care and living expenses. In addition to premium payments from the settling defendant or its liability insurer in the underlying personal injury case, the Defendants garnered substantial and meaningful tax benefits for taking on these duties to their payees. Symetra is a diversified financial services company based in Bellevue, Washington. A copy of the Plaintiffs' motion to certify class dated Feb. 18, 2021 is available from PacerMonitor.com at https://bit.ly/3podNmo at no extra charge.[CC] The Plaintiffs are represented by: Lynn Lincoln Sarko, Esq. Gretchen Freeman Cappio, Esq. Ian S. Birk, Esq. Adele A. Daniel, Esq. Alison E. Chase, Esq. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 E-mail: lsarko@kellerrohrback.com gcappio@kellerrohrback.com ibirk@kellerrohrback.com adaniel@kellerrohrback.com achase@kellerrohrback.com - and - Jerome M. Marcus, Esq. Jonathan Auerbach, Esq. MARCUS & AUERBACH LLC 1121 N. Bethlehem Pike, Suite 60-242 Spring House, PA 19477 Telephone: (215) 885-2250 Facsimile: (888) 875-0469 E-mail: jmarcus@marcusauerbach.com auerbach@marcusauerbach.com - and - Daniel C. Simons, Esq. MARCUS & MARCUS, PLLC P.O. Box 212 Merion Station, PA 19066 Telephone: (215) 664-1184 E-mail: dsimons@marcuslaw.us - and - Edward Stone, Esq. EDWARD STONE LAW P.C. 175 West Putnam Avenue, 2nd Floor Greenwich, CT 06830 Telephone: (203) 504-8425 Facsimile: (203) 348-8477 E-mail: eddie@edwardstonelaw.com SYNCHRONY FINANCIAL: Dismissal of Putative Class Suit Upheld ------------------------------------------------------------ Synchrony Financial disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that the Court of Appeals affirmed the District Court's dismissal of a putative class action. On November 2, 2018, a putative class action lawsuit, "Retail Wholesale Department Store Union Local 338 Retirement Fund v. Synchrony Financial, et al.," was filed in the U.S. District Court for the District of Connecticut, naming as defendants the company and two of its officers. The lawsuit asserts violations of the Exchange Act for allegedly making materially misleading statements and/or omitting material information concerning the company's underwriting practices and private-label card business, and was filed on behalf of a putative class of persons who purchased or otherwise acquired its common stock between October 21, 2016 and November 1, 2018. The complaint seeks an award of unspecified compensatory damages, costs and expenses. On February 5, 2019, the court appointed Stichting Depositary APG Developed Markets Equity Pool as lead plaintiff for the putative class. On April 5, 2019, an amended complaint was filed, asserting a new claim for violations of the Securities Act in connection with statements in the offering materials for the Company's December 1, 2017 note offering. The Securities Act claims are filed on behalf of persons who purchased or otherwise acquired Company bonds in or traceable to the December 1, 2017 note offering between December 1, 2017 and November 1, 2018. The amended complaint names as additional defendants two additional Company officers, the company's board of directors, and the underwriters of the December 1, 2017 note offering. The amended complaint is captioned "Stichting Depositary APG Developed Markets Equity Pool and Stichting Depositary APG Fixed Income Credit Pool v. Synchrony Financial et al." On March 26, 2020, the District Court re-captioned the case "In re Synchrony Financial Securities Litigation" and on March 31, 2020, the District Court granted the defendants' motion to dismiss the complaint with prejudice. On April 20, 2020, plaintiffs filed a notice to appeal the decision to the United States Court of Appeals for the Second Circuit. On February 16, 2021, the Court of Appeals affirmed the District Court's dismissal of the Securities Act claims and all of the claims under the Exchange Act with the exception of a claim relating to a single statement on January 19, 2018 regarding whether Synchrony was receiving pushback on credit from its retail partners. Synchrony Financial is a consumer financial services company based in Connecticut. TEVA PHARMA: Court Junks Antitrust Class Suit --------------------------------------------- Teva Pharmaceutical Industries Limited disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that the District Court for the Eastern District of Pennsylvania granted a motion to dismiss a class action suit alleging violations of the antitrust laws in connection with their settlement of patent litigations involving colchicine tablets (generic Colcrys), entered into in January 2016. In August 2021, a plaintiff filed a putative class action suit in the United States District Court for the Eastern District of Pennsylvania against Takeda and several generic manufacturers, including Watson and Teva. Plaintiff claims that the settlement was part of a horizontal conspiracy among Takeda and the generic manufacturers to unlawfully restrict output of colchicine by delaying generic entry. Defendants moved to dismiss the complaint for failure to state a claim. On December 28, 2021, the court granted the defendants' motion to dismiss, finding that plaintiff's allegations were implausible, but granted plaintiff leave to amend, and on January 18, 2022, plaintiff filed its amended complaint, making substantively the same antitrust allegations as before, but with certain new allegations regarding the nature of the alleged conspiracy. Annual sales of Colcrys in the United States were approximately $187 million at the time of the settlement. Teva Pharmaceutical Industries Limited is a pharmaceutical company based in Israel. TEVA PHARMA: Faces Antitrust Suits Over Stifled Generic Drug Entry ------------------------------------------------------------------ Teva Pharmaceutical Industries Limited disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that it is facing antitrust violations with regards to generic drugs. Teva and its subsidiaries have increasingly been named as defendants in cases that allege antitrust violations arising from "settlement agreements" with other generic drug manufacturers. The plaintiffs in these cases, which are usually direct and indirect purchasers of pharmaceutical products, and often assert claims on behalf of classes of all direct and indirect purchasers, typically allege that Teva received something of value from the innovator in exchange for an agreement to delay generic entry of generic versions of its drugs and significant savings could have been realized on the past of its consumers if there had been no settlement agreement and generic competition had commenced earlier. These class action cases seek various forms of injunctive and monetary relief, including damages based on the difference between the brand price and what the generic price allegedly would have been and disgorgement of profits, which are automatically tripled under the relevant statutes, plus attorneys' fees and costs. Teva Pharmaceutical Industries Limited is a pharmaceutical company based in Israel. TEVA PHARMA: Generic Drug Pricing Row Settled in D. Conn. --------------------------------------------------------- Teva Pharmaceutical Industries Limited disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that a settlement of the class action suit it was facing over its generic drug pricing was approved by the US District Court for the District of Connecticut. On November 6, 2016 and December 27, 2016, two putative securities class actions were filed in the U.S. District Court for the Central District of California against Teva and certain of its current and former officers and directors. Those lawsuits were consolidated and transferred to the District of Connecticut. On December 13, 2019, the lead plaintiff in that action filed an amended complaint, purportedly on behalf of purchasers of Teva's securities between February 6, 2014 and May 10, 2019. The amended complaint asserts that Teva and certain of its current and former officers and directors violated federal securities and common laws in connection with Teva's alleged failure to disclose pricing strategies for various drugs in its generic drug portfolio and by making allegedly false or misleading statements in certain offering materials. The amended complaint seeks unspecified damages, legal fees, interest, and costs. In July 2017, August 2017, and June 2019, other putative securities class actions were filed in other federal courts based on similar allegations, and those cases have been transferred to the U.S. District Court for the District of Connecticut. Between August 2017 and September 2021, twenty-two complaints were filed against Teva and certain of its current and former officers and directors seeking unspecified compensatory damages, legal fees, costs and expenses. The similar claims in these complaints have been brought on behalf of plaintiffs, in various forums across the country, who have indicated that they intend to "opt-out" of the consolidated litigation. On March 10, 2020, the Court consolidated the all of the above-referenced putative class actions for all purposes and the "opt-out" cases for pretrial purposes. Pursuant to that consolidation order, plaintiffs in several of the "opt-out" cases filed amended complaints on May 28, 2020. On January 22, 2021, the Court dismissed the "opt-out" plaintiffs' claims arising from statements made prior to the five year statute of repose, but denied Teva's motion to dismiss their claims under Israeli laws. Those "opt-out" plaintiffs moved for reconsideration, which was denied on March 30, 2021. On May 24, 2021, Teva moved to dismiss a majority of the "opt-out" complaints on various other grounds. Those motions are still pending. The consolidated litigation plaintiffs' Motion for Class Certification and Appointment of Class Representatives and Class Counsel was granted on March 9, 2021, to which Teva's appeal was denied. On January 18, 2022, Teva entered into a settlement in the consolidated litigation for $420 million, which was preliminarily approved by the court on January 27, 2022. Pursuant to an agreement between the Company and its insurance carriers, the insurance carriers are expected, subject to certain funding conditions, to provide the vast majority of the total settlement amount, with a small portion contributed by Teva. Additionally, as part of the settlement, Teva admitted no liability and denied all allegations of wrongdoing. A number of "opt-out" complaints still remain outstanding, and motions to approve securities class actions were also filed in the Tel Aviv District Court in Israel with similar allegations to those made in the consolidated litigation. Teva Pharmaceutical Industries Limited is a pharmaceutical company based in Israel. TEVA PHARMA: Moves to Dismiss Securities Suit in E.D. Pa. --------------------------------------------------------- Teva Pharmaceutical Industries Limited disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 9, 2022, that the company moved to dismiss a securities class action filed in the US District Court for the Eastern District of Pennsylvania alleging, among other things, violations of the Securities and Exchange Act of 1934. On September 23, 2020, a putative securities class action was filed in the U.S. District Court for the Eastern District of Pennsylvania against Teva and certain of its former officers alleging, among other things, violations of Section 10(b) of the Securities and Exchange Act of 1934, as amended and SEC Rule 10b-5. The complaint, purportedly filed on behalf of persons who purchased or otherwise acquired Teva securities between October 29, 2015 and August 18, 2020, alleges that Teva and certain of its former officers violated federal securities laws by allegedly making false and misleading statements regarding the commercial performance of its drug "Copaxone," namely, by failing to disclose that Teva had caused the submission of false claims to Medicare through Teva's donations to bona fide independent charities that provide financial assistance to patients, which allegedly impacted Copaxone's commercial success and the sustainability of its revenues and resulted in the above referenced August 2020 False Claims Act complaint filed by the DOJ. On March 26, 2021, the Court appointed lead plaintiff and lead counsel. On May 25, 2021, lead plaintiff filed an amended class action complaint, which named four additional former and current officers as defendants. On August 10, 2021, lead plaintiff moved to strike certain allegations from its amended complaint and to file a corrected amended complaint, which the court granted that same day. The corrected amended complaint seeks unspecified damages and legal fees. On August 23, 2021, Teva moved to dismiss the corrected amended complaint, and that motion remains pending. A motion to approve a securities class action was also filed in the Central District Court in Israel, which has been stayed pending the U.S. litigation, with similar allegations to those made in the above complaint filed in the U.S. District Court for the Eastern District of Pennsylvania. Teva Pharmaceutical Industries Limited is a pharmaceutical company based in Israel. UNITED SERVICES: Scheduling Order Modified in Spielman Suit ----------------------------------------------------------- In the class action lawsuit captioned as LESTER I. SPIELMAN, individually and on behalf of all others similarly situated, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Case No. 2:19-cv-01359-TJH-MAA (C.D. Cal.), the Hon. Judge Terry J. Hatter, Jr. entered an order granting stipulation for modification of scheduling order as follows: 1. Fact Discovery shall close on: April 19, 2022 2. The parties shall file any May 17, 2022 dispositive motions on or before: 3. The Pretrial Conference shall August 15, 2022 be held on: The United Services Automobile Association is a San Antonio-based Fortune 500 diversified financial services group of companies. A copy of the Court's order dated Feb. 17, 2021 is available from PacerMonitor.com at https://bit.ly/3Isvhpv at no extra charge.[CC] UNITED STATES: Order Setting Deadlines Entered in Blades Suit ------------------------------------------------------------- In the class action lawsuit captioned as JONATHAN BLADES and ANTWAN BUCHANAN v. MERRICK B. GARLAND, MICHAEL CARVAJAL and FEDERAL BUREAU OF PRISONS, Case No. 1:22-cv-00279 (D.D.C.), the Hon. Judge Amy Berman Jackson entered an order setting / Resetting deadlines as follows: -- The Plaintiffs' motion for summary April 1, 2022 judgment, as well as plaintiffs' motion for class certification, must be submitted by: -- The Defendants' combined cross-motion April 22, 2022 for summary judgment and opposition to plaintiffs' motion for summary judgment, to be supported be a single memoranda, as well as their separate opposition to the motion for class certification, must be submitted by: -- The Plaintiffs' combined cross- May 6, 2022 opposition and reply in support of his motion for summary judgment, as well as their separate reply in support of the motion for class certification, must be submitted by: -- The Defendants' cross-reply must be May 20, 2022 submitted by: The nature of suit states Other Statutes -- Administrative Procedure Act/Review or Appeal of Agency Decision. The Federal Bureau of Prisons is a United States federal law enforcement agency under the Department of Justice responsible for the care, custody, and control of incarcerated individuals.[CC] UNITES STATES: Amended Scheduling Order Entered in Kidd Suit ------------------------------------------------------------ In the class action lawsuit captioned as Osny Sorto-Vasquez Kidd et al., v. Chad T. Wolf et al., Case No. 2:20-cv-03512-ODW-JPR (C.D. Cal.), the Hon. Judge Otis D. Wright II entered an order that the deadline to file a motion for class certification shall be continued from March 15, 2022 to May 15, 2022. The Defendants include ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security, in his official capacity; TAE D. JOHNSON, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity; DAVID MARIN, Los Angeles Field Office Director, U.S. Immigration and Customs Enforcement, in his official capacity; JOSEPH MACIAS, Los Angeles Special Agent in Charge, Homeland Security Investigations, U.S. Immigration and Customs Enforcements, in his official capacity; UNITED STATES OF AMERICA; O.M.; C.C.; J.H.; and J.N. A copy of the Court's order dated Feb. 17, 2021 is available from PacerMonitor.com at https://bit.ly/3t9cMzQ at no extra charge.[CC] UPONOR INC: Can Compel Arbitration in Haynes Class Suit, Court Says ------------------------------------------------------------------- In the case, HOYT HAYNES, et al., Plaintiffs v. UPONOR, INC., et al., Defendants, Case No. 21-cv-05480-PJH (N.D. Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California granted in part and denied in part the Defendants' motion to compel arbitration or dismiss. Hoyt Haynes and Felicia M. Haynes bring a class action lawsuit against Uponor Inc. and Uponor North America Inc., which manufacture blue and red colored cross-linked polyethylene tubing ("PEX"). The Plaintiffs own a home in Brentwood, California, that was originally constructed with PEX incorporated in its potable water plumbing system. They purchased their home from Seecon Built Homes, Inc., in September 2016. As part of their purchase, the Plaintiffs and Seecon entered into a "Purchase Agreement" that included provisions regarding manufactured products. Sections 19 and 20 of the Purchase Agreement contain the language about manufactured products and warranties. The Defendants extend a limited warranty ("PEX warranty") for the PEX products in dispute, which is available for review on the Defendants' public website. The warranty states that the Defendants warrant to the "owner of the applicable real property that the PEX products will be free from defects in materials and workmanship." The PEX warranty also mandates arbitration on unresolved claims and prohibits all class actions. The Plaintiffs allege that in October 2019 they discovered a water leak from the PEX in their master bedroom ceiling area, which caused significant damage to the walls and master bathroom. Rather than seeking a resolution under the PEX warranty, they filed the suit on July 16, 2021. The Plaintiffs' operative complaint asserts four causes of action: (1) strict product liability, (2) negligence, (3) violations of the Standards for Residential Construction, Cal. Civ. Code Section 895, and (4) violations of the Unfair Business Practices Act. On Nov. 29, 2021, the Defendants moved to compel arbitration, arguing the Plaintiffs are bound by the arbitration provision and class action prohibition in the PEX warranty. In the alternative, the Defendants moved to dismiss. The matter came on for hearing before the Court on Feb. 3, 2022. Judge Hamilton explains that any party bound to an arbitration agreement that falls within the scope of the Federal Arbitration Act, Title 9 U.S.C. Sections 1, et. seq., may bring a motion to compel arbitration and stay the proceeding pending resolution of the arbitration. The party seeking to compel arbitration "must prove the existence of a valid agreement by a preponderance of the evidence." A court reviewing a motion to compel arbitration must consider two issues: (1) whether the parties agreed to arbitrate, and (2) whether the agreement covers their present dispute. First, Judge Hamilton rejects the Plaintiffs' argument that the Purchase Agreement only applies to "consumer products" as defined by the Moss Act. Section 19 defines a "manufactured product" as "a product that is completely manufactured off site" or other product considered within "consumer products" as defined by the Moss Act. The former definition applies in the case. The PEX pipes were manufactured off-site, and thus fall within the agreement's definition of "manufactured product." Moreover, the Plaintiffs judicially admitted to being subject to the PEX warranty. Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them. In their original complaint, the Plaintiffs asserted claims for breach of implied warranty against the Defendants, and such claims require a privity of contract. The Plaintiffs failed to provide an explanation for removing their implied warranty claims in subsequent complaints, and therefore failed to remedy their judicial admissions. Second, Judge Hamilton finds that all the claims raised by the Plaintiffs fall within the arbitration provision in the PEX warranty because their claims concern the quality of the PEX pipes and damages that resulted from those pipes. According to the PEX warranty, in the event a homeowner and the Defendants "are unable to resolve a claim through informal means, the parties will submit the dispute" to arbitration. The Plaintiffs' claims were not resolved through informal means. Thus, having found that the Plaintiffs were assigned the PEX warranty, Judge Hamilton further finds that the Plaintiffs' claims fall within the scope of the arbitration provision in the PEX warranty. A "court may either stay the action or dismiss a case outright when, as in the case, Judge Hamilton determines that all of the claims raised in the action are subject to arbitration." In this instance, she stays proceedings for the duration of arbitration proceedings. Based on the foregoing, Judge Hamilton granted the Defendants' motion to compel arbitration and stayed the action pending arbitration proceedings. In light of this ruling, she need not consider the Defendants' alternative motion to dismiss or strike, or the parties' corresponding evidentiary objections or requests for judicial notice. Accordingly, she denied those motions without prejudice as moot. A full-text copy of the Court's Feb. 23, 2022 Order is available at https://tinyurl.com/475zuwmd from Leagle.com. USAA GENERAL: Case Schedule Deadlines Extended in Drozdz Suit ------------------------------------------------------------- In the class action lawsuit captioned as AGATA DROZDZ, an individual and TEAKRE VEST, an individual, v. USAA GENERAL INDEMNITY COMPANY, UNITED SERVICES AUTOMOBILE ASSOCIATION and USAA CASUALTY INSURANCE COMPANY, Case No. 2:20-cv-01010-JCC (W.D. Wash.), the Hon. Judge John C. Coughenour entered an order extending case schedule deadlines as follows: -- The Plaintiffs' Motion for Class May 6, 2022 Certification and any supporting expert reports: -- Deadline for completion of expert June 17, 2022 discovery relating to class certification issues – Plaintiffs' expert(s): -- The Defendants' Response to July 22, 2022 Plaintiffs' Motion for Class Certification and any supporting expert reports: -- Deadline for completion of expert Sept. 2, 2022 discovery relating to class certification issues – Defendants' expert(s): On September 8, 2020, the Plaintiffs filed an amended complaint adding USAA General Indemnity Company as a defendant in this matter. After the Defendants answered the amended complaint, the parties submitted a joint status report, and the Court issued a scheduling order setting a trial date and related deadlines. USAA General operates as an insurance firm. A copy of the Court's order dated Feb. 17, 2021 is available from PacerMonitor.com at https://bit.ly/35xPAmS at no extra charge.[CC] The Plaintiffs are represented by: Toby J. Marshall, Esq. Blythe H. Chandler, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34 th Street, Suite 300 Seattle, Washington 98103 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 E-mail: tmarshall@terrellmarshall.com bchandler@terrellmarshall.com - and - Young-Ji Ham, Esq. WASHINGTON INJURY LAWYERS PLLC 1700 7th Avenue, Suite 2100 Seattle, WA 98101 Telephone: (425) 312-3057 E-mail: youngji@washinjurylaw.com The Defendants are represented by: Jay Williams, Esq. Paula M. Ketcham, Esq. SCHIFF HARDIN LLP 233 South Wacker Drive, Suite 7100 Chicago, IL 60606 Telephone: (312) 258-5629 Facsimile: (312) 258-5600 E-mail: jwilliams@schiffhardin.com pketcham@schiffhardin.com - and - Michael A Moore, Esq. Victoria Ainsworth, Esq. CORR CRONIN LLP 1001 4th Avenue, Suite 3900 Seattle, Washington 98154-1051 Telephone: (206) 625-8600 Facsimile: (206) 625-0900 E-mail: mmoore@corrcronin.com tainsworth@corrcronin.com VERIZON CONNECT: Santillan Seeks to Certify Seven Classes --------------------------------------------------------- In the class action lawsuit captioned as ANTONIO HIRAM SANTILLAN, on behalf of all other similarly situated aggrieved employees, v. VERIZON CONNECT, INC., a Delaware corporation, and DOES 1 to 100, inclusive, Case No. 3:21-cv-01257-H-KSC (S.D. Cal.), the Plaintiff asks the Court to enter an order certifying the following classes: Class 1 - Overtime Rate Class: "All California-based nonexempt employees employed by the Defendant during the time period from May 19, 2017, to the present who received a “Recognizing You” bonus and worked overtime in the same pay period;" Class 2 - Meal Period Class: All California-based nonexempt employees employed by the Defendant during the time period from May 19, 2017, to the present to whom Defendant did not provide a meal break (or a one hour payment for any violations);" Class 3 - Off-the-Clock Class: "All California-based nonexempt employees employed by the Defendant during the time period from May 19, 2017, to the present who worked off the clock;" Class 4 - Reimbursement Class: "All California-based nonexempt employees employed by Defendant during the time period from March 20, 2020, to the present to who incurred unreimbursed phone and/or internet expenses in discharging their duties for Defendant;" Class 5 - Wage Statement Class: "All California-based nonexempt employees employed by the Defendant during the time period from May 19, 2020, to the present for whom Defendant did not maintain accurate records pursuant to Labor Code section 226(a) and (e);" Class 6 - Failure To Timely Pay Wages Class: "All California-based nonexempt employees employed by the Defendant during the time period from May 19, 2018, to the present to whom Defendant failed to timely pay all wages due upon separation from employment from Defendant;" and Class 7 - 17200 Class: "All California-based nonexempt employees employed by Defendant during the time period from May 19, 2017, to the present who were subjected to Defendant's unlawful, unfair, or fraudulent business acts or practices in the form of Labor Code and Wage Order violations regarding overtime wages, meal violations, unpaid wages, unreimbursed business expenses, wage statements, and payment of final wages." The Plaintiff further moves for an order pursuant to Fed. R. Civ. P. 23(g) appointing his counsel as class counsel: Mr. Santillan, on behalf of himself and all others similarly situated, alleges that Defendant Verizon Connect, Inc. violated various Labor Code provisions. The Plaintiff's claims are well suited for class treatment because this is a simply a policy case. The main issues are whether Defendant's overtime rate policy is lawful, whether meal periods or meal period premiums are provided, whether employees worked off the clock due to Defendant's timekeeping system, and whether Defendant's reimbursement policy for phone and/or internet expenses is legal. It is undisputed that all of these policies apply to all of the Class Members and the only question is whether Defendant's policies are legal. The Defendant Verizon Connect, Inc., sells fleet-performance software to businesses. During the class period (May 19, 2017, to the present), Verizon employed approximately 500 salaried non-exempt Business Development Representatives (and similar positions) in California (Class Members). Verizon currently employs approximately 105 Class Members. Starting on March 20, 2020, and continuing to the present, Class Members work from home instead of Verizon's physical offices. A copy of the Plaintiff's motion to certify class dated Feb. 18, 2021 is available from PacerMonitor.com at https://bit.ly/3sstnzj at no extra charge.[CC] The Plaintiff is represented by: Kevin T. Barnes, Esq. Gregg Lander, Esq. LAW OFFICES OF KEVIN T. BARNES 1635 Pontius Avenue, Second Floor Los Angeles, CA 90025-3361 Telephone: (323) 549-9100 Facsimile: (323) 549-0101 E-mail: Barnes@kbarnes.com - and - Vanessa M. Ruggles, Esq. VANESSA M. RUGGLES 1717 E. Vista Chino, Suite A7, PMB 117 Palm Springs, CA 92262-3569 Telephone: (760) 699-7215 Facsimile: (866) 606-6593 E-mail: VMRuggles@gmail.com - and - Raphael A. Katri, Esq. LAW OFFICES OF RAPHAEL A. KATRI 8549 Wilshire Boulevard, Suite 200 Beverly Hills, CA 90211-3104 Telephone: (310) 940-2034 Facsimile: (310) 733-5644 E-mail: RKatri@socallaborlawyers.com VIESTE SPE: Crossfirst's Bid for Leave to Amend Complaint OK'd -------------------------------------------------------------- In the class action lawsuit captioned as Crossfirst Bank et al., v. Vieste SPE LLC, et al., Case No. CV-18-01637-PHX-DLR (D. Ariz.), the Hon. Judge Douglas L. Rayes entered an order that the Plaintiff's Motion for Leave to Amend is granted. The Plaintiffs shall file their Third Amended Complaint no later than 7 days from the issuance of this order. For both the class allegations and the two new individual plaintiffs, the Foman factors counsel toward granting leave to amend, the Court says. This action arises from the Plaintiffs' purchase of $28,935,000 in industrial development bonds ("Bonds") described in Defendants' Official Statement ("OS") dated April 17, 2013. Originally, the complaint alleged Arizona Securities Act ("ASA") claims, which the Court dismissed, and Plaintiffs filed a second amended complaint that alleged common law fraud, aiding and abetting fraud, and negligent misrepresentation. Although the original ASA claims were alleged as a class action, the common law claims added in the SAC were not so alleged. Veiste is a program management firm. A copy of the Court's order dated Feb. 18, 2021 is available from PacerMonitor.com at https://bit.ly/3tfYAoI at no extra charge.[CC] VIKRANT CONTRACTING: Plaintiff Counsel Must Withdraw Class Cert Bid ------------------------------------------------------------------- In the class action lawsuit captioned as Raul Velasquez v. Vikrant Contracting & Builders, Inc., et al., Case No. 1:15-cv-02783 (E.D.N.Y.), the Hon. Judge Marcia M. Henry entered an order on motion for extension of time to file: -- In light of the settlement, counsel also shall confirm their intent to withdraw the motion for collective class certification. -- Counsel may consider whether they will file a form consenting to the Magistrate Judge's jurisdiction for review of the settlement agreement and to conduct a Cheeks hearing, if needed. -- Either party or both parties may withhold consent without adverse substantive consequences. The suit alleges violation of the Fair Labor Standards Act. Vikrant operates in the general construction machinery and equipment.[CC] VILORE FOODS: Gross Suit Seeks to Certify Class & Subclass ---------------------------------------------------------- In the class action lawsuit captioned as WARREN GROSS, DEBORAH LEVIN, SHELBY COOPER, and EDWARD BUCHANNAN on behalf of themselves and all others similarly situated, v. VILORE FOODS COMPANY, INC., ARIZONA CANNING COMPANY, LLC, Case No. 3:20-cv-00894-LL-JLB (S.D. Cal.), the Plaintiffs ask the Court to enter an order: 1. certifying, pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(2), and 23(b)(3), with respect to their claims for breach of express and implied warranties and negligent misrepresentation, a Nationwide Class defined as follows: "All persons who purchased one or more of the following products in the United States anytime between May 13, 2016 and July 22, 2019 for personal or household use and not for resale: -- Kern's Guava Nectar; -- Kern's Apricot Nectar; -- Kern's Mango Nectar; and -- Kern's Peach Nectar;" and 2. certifying, pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(2), and 23(b)(3), with respect to their claims for violations of the Consumers Legal Remedies Act, Cal. Civ. Code sections 1750, et seq. ("CLRA") violations of the Unfair Competition Law, Cal. Bus. & Prof. Code sections 17200, et seq. ("UCL"), violations of the False Advertising Law, Cal. Bus. & Prof. Code sections 17500, et seq. ("FAL"), and for breach of express and implied warranties and negligent misrepresentation, a California subclass defined as follows: "All persons who purchased one or more of the following products in California anytime between May 13, 2016 and July 22, 2019 for personal or household use and not for resale: -- Kern's Guava Nectar; -- Kern's Apricot Nectar; -- Kern's Mango Nectar; and -- Kern's Peach Nectar." Excluded from the Class and subclass are Defendants and Defendants' officers, directors, employees, agents, and affiliates, and the Court and its staff. This action was filed on May 13, 2020 in the United States District Court for the Southern District of California. Following several rounds of briefing, Plaintiffs filed a Third Amended Complaint on April 23, 2021 ("TAC"). Both Defendants filed an answer to Plaintiffs' TAC on May 21, 2021. The Plaintiffs' complaint alleges that the Defendants "distributed, advertised, marketed, and sold a variety of Kern's juices and juice-based beverage products, including juice-based beverage products labeled 'Guava Nectar', 'Apricot Nectar', 'Mango Nectar,' and 'Peach Nectar'" During the Class Period, the Products' front labels represented that the Products are flavored with natural fruits such as peach and guava, displayed pictorial representations of the fruits named on the label, and claimed that the Products are made with "whole fruit". The Plaintiffs allege that Defendants' labeling claims are false and misleading because each of the Products contain the artificial flavoring ingredient dl-malic acid. The Plaintiffs' testing confirms that Defendants use the artificial dl-malic acid in the Products. The Plaintiffs' expert has found that the artificial dl-malic acid functions as a flavoring ingredient in the Products. Vilore Foods is the exclusive importer, distributor and marketer of leading Hispanic brands in the U.S. and Canada. Arizona Canning is a food production company. A copy of the Plaintiffs' motion to certify class dated Feb. 18, 2021 is available from PacerMonitor.com at https://bit.ly/3su0nat at no extra charge.[CC] The Plaintiffs are represented by: Ronald A. Marron, Esq. Michael T. Houchin, Esq. Lilach Halperin, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 E-mail: ron@consumersadvocates.com mike@consumersadvocates.com lilach@consumersadvocates.com - and - David Elliot, Esq. ELLIOT LAW OFFICE PC 2028 3rd Avenue San Diego, CA 92101 Telephone: (619) 468-4865 WHIRLPOOL CORP: Continues to Defend Two Class Suits ---------------------------------------------------- Whirlpool Corporation disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that the company is currently defending against two lawsuits that have been certified for treatment as class actions in U.S. federal court, relating to two top-load washing machine models. In December 2019, the court in one of these lawsuits entered summary judgment in Whirlpool's favor. That ruling remains subject to appeal, and the other lawsuit is ongoing. Whirlpool Corporation is a kitchen and laundry company based in Michigan. ZILLOW GROUP: Barua Securities Suit Pending in W.D. Wash. --------------------------------------------------------- Zillow Group, Inc. disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that on November 16, 2021, a purported class action lawsuit was filed against the company and certain of its executive officers, alleging, among other things, violations of federal securities laws on behalf of a class of those who purchased their stock between August 7, 2020 and November 2, 2021. The case captioned "Barua v. Zillow Group, Inc. et al.," was brought in the U.S. District Court for the Western District of Washington alleging, among other things, that the company issued materially false and misleading statements regarding its Zillow Offers business. The complaint seek to recover, among other things, alleged damages sustained by the purported class members as a result of the alleged misconduct. Zillow Group, Inc. is a real estate website based in Washington. ZILLOW GROUP: Hillier Securities Suit Pending in W.D. Wash. ----------------------------------------------------------- Zillow Group, Inc. disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that in January 6, 2022, a purported class action lawsuits was filed against the company and certain of its executive officers, alleging, among other things, violations of federal securities laws on behalf of a class of those who purchased their stock between August 7, 2020 and November 2, 2021. The case captioned "Hillier v. Zillow Group, Inc. et al." was brought in the U.S. District Court for the Western District of Washington. The complaints allege, among other things, that the company issued materially false and misleading statements regarding its Zillow Offers business. The complaints seek to recover, among other things, alleged damages sustained by the purported class members as a result of the alleged misconduct. Zillow Group, Inc. is a real estate website based in Washington. ZILLOW GROUP: Shotwell Securities Suit Pending in W.D. Wash. ------------------------------------------------------------ Zillow Group, Inc. disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that it is facing purported class action lawsuits were filed between August and September 2017, against the company and certain of its executive officers, alleging, among other things, violations of federal securities laws on behalf of a class of those who purchased its common stock between February 12, 2016 and August 8, 2017. The case captioned "Shotwell v. Zillow Group, Inc. et al," was brought in the U.S. District Court for the Western District of Washington. The complaints allege, among other things, that during the period between February 12, 2016 and August 8, 2017, the company issued materially false and misleading statements regarding its business practices. The complaints seek to recover, among other things, alleged damages sustained by the purported class members as a result of the alleged misconduct. In November 2017, an amended complaint was filed against the company and certain of its executive officers in the Shotwell v. Zillow Group purported class action lawsuit, extending the beginning of the class period to November 17, 2014. In February 2018, the plaintiffs filed a consolidated amended complaint, and in April 2018, the company filed a motion to dismiss the consolidated amended complaint. In October 2018, the motion to dismiss was granted without prejudice, and in November 2018, the plaintiffs filed a second consolidated amended complaint, which the company moved to dismiss in December 2018. On April 19, 2019, the company's motion to dismiss the second consolidated amended complaint was denied. On October 11, 2019, plaintiffs filed a motion for class certification which was granted by the court on October 28, 2020. On February 17, 2021, the Ninth Circuit Court of Appeals denied the company's petition for review of that decision. Zillow Group, Inc. is a real estate website based in Washington. ZILLOW GROUP: Silverberg Securities Suit Pending in W.D. Wash. -------------------------------------------------------------- Zillow Group, Inc. disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that on November 19, 2021 a purported class action lawsuit was filed against the company and certain of its executive officers, alleging, among other things, violations of federal securities laws on behalf of a class of those who purchased their stock between August 7, 2020 and November 2, 2021. The case captioned "Silverberg v. Zillow Group, et al." was brought in the U.S. District Court for the Western District of Washington alleging, among other things, that the company issued materially false and misleading statements regarding its Zillow Offers business. The complaints seek to recover, among other things, alleged damages sustained by the purported class members as a result of the alleged misconduct. Zillow Group, Inc. is a real estate website based in Washington. ZILLOW GROUP: Vargosko Securities Suit Pending in W.D. Wash. ------------------------------------------------------------- Zillow Group, Inc. disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 10, 2022, that it is facing purported class action lawsuits were filed between August and September 2017, against the company and certain of its executive officers, alleging, among other things, violations of federal securities laws on behalf of a class of those who purchased its common stock between February 12, 2016 and August 8, 2017. The case captioned "Vargosko v. Zillow Group, Inc. et al," was brought in the U.S. District Court for the Central District of California alleging, among other things, that during the period between February 12, 2016 and August 8, 2017, the company issued materially false and misleading statements regarding its business practices. The complaints seek to recover, among other things, alleged damages sustained by the purported class members as a result of the alleged misconduct. In January 2018, the Vargosko lawsuit was transferred to the U.S. District Court for the Western District of Washington and consolidated with "Shotwell v. Zillow Group, Inc. et al." In February 2018, the plaintiffs filed a consolidated amended complaint, and in April 2018, the company filed a motion to dismiss the consolidated amended complaint. In October 2018, the motion to dismiss was granted without prejudice, and in November 2018, the plaintiffs filed a second consolidated amended complaint, which the company moved to dismiss in December 2018. On April 19, 2019, the company's motion to dismiss the second consolidated amended complaint was denied. On October 11, 2019, plaintiffs filed a motion for class certification which was granted by the court on October 28, 2020. On February 17, 2021, the Ninth Circuit Court of Appeals denied the company's petition for review of that decision. Zillow Group, Inc. is a real estate website based in Washington. ********* 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. 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