/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220328.mbx C L A S S A C T I O N R E P O R T E R Monday, March 28, 2022, Vol. 24, No. 56 Headlines 20/20 EYE CARE: District Court Narrows Claims in Desue Class Suit 2690 GROCERY: Presinal Seeks Minimum, OT Wages Under FLSA & NYLL 6 SOUTH BROADWAY: Class Settlement in Rodriguez Suit Wins Approval ACADIA LAPLACE: Hamm Seeks Conditional Class Cert of Health Workers AEGIS SENIOR: Melgoza Seeks Minimum & Overtime Wages Under FLSA AF MASONRY: Emiliano Montiel Seeks Unpaid Overtime Wages Under FLSA AFRICAN METHODIST: Mismanages Retirement Plan, Alexander Alleges AKEBIA THERAPEUTICS: Deputy Sues Over Share Price Decline AKIMA SUPPORT: Class Settlement in Avery Suit Wins Prelim. Nod ALLIANCE HEALTH: Fischler Sues Over Blind-Inaccessible Website ALLIANT INSURANCE: Begian Sues for Denied Insurance Policy Coverage ALTERYX INC: Chau Securities Case Dismissed ALTERYX INC: Lalgudi Securities Suit Junked ALTERYX INC: Smith Securities Class Suit Tossed AMEER FOOD: Cornelio Sues Over Unpaid Wages for Grill Cooks AMERICAN HONDA: Class Cert. Order Amendment in Quackenbush AMGEN INC: Faces Antitrust Suit Over Generic Drug ANDERSON AVE: Farrell Sues Over Unpaid Minimum, Overtime Wages ANTHEM INC: Faces Consolidated ERISA Suit ARCHER DANIELS: AOT, Maize Seek to Clarify March 7, 2022 Order ARCHER DANIELS: Class Certification Deadlines Entered in MRE Suit ARCONIC INC: Faces Consolidated Securities Class Suit BELDEN INC: Edke Class Action Stayed BELDEN INC: Faces Mackey Suit Over Data Breach BHJ USA: Lopez Wage-and-Hour Suit Removed to E.D. California BLACKBERRY LTD: Court Rules on Motions in Limine in Pearlstein Suit BRIGHTHOUSE LIFE: CMP & Scheduling Order Entered in Martin Suit BRISTOL-MYERS SQUIBB: Dismissal of Arkansas PERS Suit Affirmed BROADWAY SAN FRANCISCO: Faces Devireddy Suit Over Unsolicited Calls BRODOFICATION LLC: CMP, Scheduling Order Entered in Tavarez Suit CALIFORNIA: Appeals Preliminary Injunction Ruling in E.E. Suit CANO HEALTH: Gonzalez Sues Over 6.17% Drop of Common Stock Price CARMAX AUTO: Reid Appeals Vehicle Emission Case Dismissal CDM FEDERAL: Faces Hibben Suit Over Failure to Pay Proper Wages CELSIUS HOLDINGS: Faces McCallion Suit Over Stock Price Drop CENTRAL MANAGEMENT: Transmits Unwanted Robocalls, Coleman Alleges CHARLOTTE MECKLENBURG, NC: Beyan Suit Dismissed Without Prejudice CIBC BANK: Web Site Not Accessible to Blind, Williams Suit Says CITIBANK NA: Perez Employment Suit Removed to E.D. California COCA-COLA CONSOLIDATED: Jones Wins Prelim. OK of $3.5MM Class Deal COGNIZANT TECHNOLOGY: Faces Shareholder Suit in NJ Court COGNIZANT TECHNOLOGY: Settlement in Three Class Suits Gets Final OK COLGATE DELI: Vera Sues Over Unpaid Minimum and Overtime Wages COMMERCIAL CONDOMINIUM: Matthews Suit Seeks OT Pay Under FLSA, VOWA CONNECTICUT GENERAL: Filing for Class Cert Bid Extended to May 6 CORECIVIC INC: Class Certification Filing Extended to June 17 COWEN INC: Web Site Not Accessible to Blind, William Suit Says CREDIT MANAGEMENT: Preliminary Scheduling Order Entered in Hale DECARBONIZATION PLUS: Caused Stockholders to OK Merger, Malork Says DEERE & CO: Monopolizes Repair Service Market, Casselbury Says DEMOCRACY FORWARD: Bid for Leave to File Amicus Curiae Brief OK'd DESERT FINANCIAL: 2 Questions Certified to Supreme Court in Cornell DETROIT, MI: Court Denies Versen's Bid for Preliminary Injunction DISTRICT COUNCIL 37: Faces Gainer Suit Over Unpaid Minimum Wages DO & CO NEW YORK: Alvarado Sues Over Improper Wage Practices DONG BANG CORP: Lee Sues Over Food Service Staff's Unpaid Wages DREYER'S GRAND: Yu's 1st Amended Suit Dismissed With Leave to Amend DRYMAX TECHNOLOGIES: Ortega Seeks Blind's Access to Online Store EDGE WEALTH: Web Site Not Accessible to Blind, Williams Alleges EQUIFAX CREDIT: Court Adopts M&R and Dismisses Clayton Breach Suit FAMILY DOLLAR: Brown Files Suit Over Sanitation Issue FANNIE MAE: Court Junks Securities Suits in D.C FANNIE MAE: Dismissal of Shareholder Suit Under Appeal FANNIE MAE: Shareholder Suit Remanded to District Court FB HOSPITALITY: Harrington Seeks Bartenders' Unpaid Minimum Wages FIRSTENERGY CORP: Consolidated RICO Case Stayed FIRSTENERGY CORP: Settlement Talks Over Emmons RICO Suit Underway FOREVER YOUNG: Faces Mota Suit Over Alleged Telephonic Sales Calls FREEPORT-MCMORAN: Faces Putative Class Suit in NJ Court GEMINI TRUST: Fails to Secure Consumers' IRAs, Griffin Suit Claims GENERAL MOTORS: Hammerschmidt Appeals Airbag Defect Suit Dismissal GENERAL MOTORS: S.D. Ohio Denies Bid to Dismiss Riley Class Suit GOOGLE LLC: Curley Sues Over Race Discrimination in the Workplace GREYSTAR MANAGEMENT: Principe Sues Over Accountants' Unpaid Wages HEALTHCOMPARE INSURANCE: Scheduling Order Entered in DeLong Suit HEARTLAND RESOLUTION: Faces Coleman Suit Over Collection Letter HL WELDING: $858K Class Settlement in Yanez Suit Wins Final Nod HONEYWELL SAFETY: McKnight Seeks Collective Action Notice HOPEN LIFE: Order Setting Scheduling Conference Entered in Winkler IDEANOMICS INC: S.D. New York Grants Bids to Toss Securities Suit INSPECTIONALERT.COM INC: Monzon Suit Seeks Damages Under FLSA, NYLL INSPERITY INC: Building Trades' Complaint Dismissed With Prejudice KADENCE INTERNATIONAL: Fails to Pay Overtime Pay, Brown Alleges KELLER WILLIAMS: Class Cert Bid Opposition Extended to April 4 KELLER WILLIAMS: Seeks More Time to File Class Cert Bid Response LORDSTOWN MOTORS: Delaware Court Refuses to Stay Stockholders Suit MAD FISH SC: Fails to Pay Proper Wages, Craven Suit Alleges MAGNA INTERNATIONAL: Davis, Dakota Seek Class Certification MAISON DE'VILLE NURSING: Class Cert Bid Filing Extended to March 28 MAMMOTH TECH: Leininger Alleges WARN Act Violation Over Mass Layoff MARZ & ASSOCIATES: Underpays General Laborers, Krueger Suit Says META PLATFORMS: N.D. California Grants in Part Klein's Bids to Seal META PLATFORMS: Seeks Summary Judgment in DZ Reserve Class Suit METROPOLITAN LIFE: McAlister, et al., Seek to Certify Class MG DELI GROCERY: Fails to Pay Proper Overtime Pay, Castillo Says MICHIGAN STATE: Norris Appeals Order in Suit Over Mandatory Vaccine MILLIMAN INC: Healy FCRA Suit Seeks to Certify Three Classes MOLINA HEALTHCARE: Breaches Fiduciary Duties, Mills ERISA Suit Says NAGLE & ASSOCIATES: NMFIC Summary Judgment Bid Partly Granted NEW YORK, NY: Class Certification Sought in N.G. Suit NEW YORK: Donohue Appeals Mask Mandate Class Suit Dismissal NISSAN NORTH: Manufacturers May File Sur-Reply in Hagenbaugh Suit NOUHAUS INC: CMP, Scheduling Order Entered in Tavarez-Vargas Suit OREGON: Canales-Robles Loses Class Certification Bid OREGON: Court Extends Discovery & PTO Deadlines in Terrill P&C PAGELS: Fails to Pay Proper Wages, Condado Suit Alleges PEACHCAP TAX: Leonard Appeals Securities Suit Dismissal PINNACLE ATHLETIC: Court Approves Settlement in Boyd FLSA Suit POLARIS INC: Dismissal of Guzman Suit Under Appeal POLARIS INC: Faces Hellman Class Suit in California PRATT & WHITNEY: DiCello Named Co-Lead Counsel in Granata Suit PROGRESSIVE DIRECT: W.D. Washington Stays Proceedings in Assaf Suit QG PRINTING: Sims' Bid to Certify Class Granted in Part QUEST INTERNATIONAL: Hong Appeals FLSA Suit Dismissal RAUSCH STURM: Wins Bid to Compel Arbitration in Schmitt Suit REAL HOSPITALITY: Final Approval of Class Settlement Deal Sought RESIDEO TECHNOLOGIES: To Settle Securities Suit in D. Minn. RESOURCE BIOLOGICS: Progressive Health Sues Over Unsolicited Ads RIVIAN AUTOMOTIVE: Faces Horvath Suit Over Drop in Share Price ROSS HUNTER: Gets Continuance of Litigation Deadlines SAFECO INSURANCE: 2nd Amended Case Management Sched Order Entered SAMSUNG ELECTRONICS: Holland Suit Asserts "Benchmark Cheating" SCHRAIER INVESTMENTS: Fails to Pay Proper Wages, Weaver Suit Says SEABOARD CORPORATION: Antitrust Suit Pending in D. Minn. SELECT PORTFOLIO: Collins Files FDCPA Suit in S.D. Florida SERVICE CORP: Faces Taylor Class Suit in Florida Court SIMON PROPERTY: Court Resets Pre-trial Deadlines in Cafe Suit SIMPSON STRONG-TIE: Salhotra Loses Class Certification Bid SOCK GEEK: Ortega Files ADA Suit in S.D. New York SOCLEAN INC: Litman Sues Over Failure to Disclose Levels of Ozone SOLDIER'S KABANA: Rowe Class Suit Seeks OT Pay Under FLSA & NYLL SONY ELECTRONICS: Can Compel Arbitration in Guerriero Class Suit SOUTHWESTERN ENERGY: Underpays Site Safety Advisors, Polis Says SPELLMANS MARINE: Tucker Files ADA Suit in S.D. New York SPIRIT AEROSYSTEMS: Dismissal of Consolidated Suit Under Appeal SPIRIT AEROSYSTEMS: Faces Securities Suit in Kansas Court SPIRIT AEROSYSTEMS: Securities Suit in Oklahoma Remains Stayed STRAIGHT PATH: Del. Ch. Continues Bid to Certify Class as to TAF TARGET CORP: Dominique-Tate Sues Over Benzene in Sanitizer Gel TESLA INC: Platt Sues Over Illegal Biometric Data Collection TEVA PHARMACEUTICALS: Fund Sues Over Copaxone Market Monopoly TITLEMAX OF NEW MEXICO: Loses Judgment on Pleadings Bid in Romero TOOTSIE ROLL: Stipulation to Modify Schedule in Maisel OK'd TUBESCIENCE USA: Faces Worel Suit Over Retaliatory Termination TYSON FOODS: Tenth Circuit Affirms Dismissal of Thornton's Claims U.S. BANCORP: $250K FLSA Settlement in Jackson Suit Wins Approval UMPQUA BANK: Must File Bid for Summary Judgment by May 5 UNIFUND CCR: Court OK's Compliance With Final Order in Rule Suit UNITED AIRLINES: Voluntary Separation Program Deceptive, Says Suit UNITED STATES: Beasley Balks at U.S. Navy's MRR Process UNITED STATES: D.C. Court Certifies Class in Springs v. U.S. Navy UNIVERSITY OF ILLINOIS: Brown Files Class Certification Bid V. MARCHESE & CO: Gomez-Velazquez Files Class Certification Bid VALLON PHARMA: Rendon Sues Over Blind Inaccessible Website VERTAFORE INC: 5th Cir. Affirms Dismissal of Allen Class Suit VIACOMCBS INC: Agreement Reached in Consolidated Class Action VIACOMCBS INC: Agrees to Settle New York Class Action VIACOMCBS INC: Court Narrows Claims in Securities Suit VIACOMCBS INC: Faces Shareholder Suits in Del. Ch. VIACOMCBS INC: Seeks Dismissal of New York Securities Suit VIEW INC: Sonthalia Petitions for Writ of Mandamus in Mehedi Suit W.G./WELCH MECHANICAL: Faces Aluira Suit Over Workers' Unpaid Wages WAL-MART ASSOCIATES: Parties in Nelson Seek to Stay Class Briefing WALMART INC: Court Denies Bid to Dismiss Fortney Wage & Hour Suit Y.S. HAPPY: Kim Sues Over Unpaid Minimum and Overtime Wages ZARBEE'S INC: Faces Cottrill False Ad Suit Over Gripe Water Product ZENDESK INC: Anderson Securities Suit Stayed ZENDESK INC: Dismissal of Securities Suit Under Appeal ZIMMER BIOMET: Class Settlement in Karl Suit Gets Final Approval ********* 20/20 EYE CARE: District Court Narrows Claims in Desue Class Suit ----------------------------------------------------------------- In the case, WENSTON DESUE, individually and as legal guardian of N.D. and M.D. and all others similarly situated, Plaintiff v. 20/20 EYE CARE NETWORK, INC., et al., Defendants, Case No. 21-CIV-61275-RAR (S.D. Fla.), Judge Rodolfo A. Ruiz, II, of the U.S. District Court for the Southern District of Florida granted in part the Defendants' Joint Motion to Dismiss Plaintiffs' First Amended Consolidated Complaint. I. Background The action is the result of a data breach detected in January 2021, when 20/20 Eye Care, 20/20 Hearing Care, and iCare allegedly failed to protect the personally identifiable information ("PII") and protected health information ("PHI") of the Plaintiffs and over 3.2 million similarly situated persons -- including their names, dates of birth, Social Security numbers, member identification numbers, and health insurance information. The Defendants provide third-party administrative services in the healthcare space, sharing and storing patients' PII and PHI in the same platform. Defendant 20/20 Eye Care is a managed vision care company that provides eye care services and acts as a third-party insurance plan administrator, assisting both insurance companies and patients. Defendant iCare acquired Defendant 20/20 Eyecare in September 2020 and exercises some control over 20/20 Eye Care. Defendant 20/20 Hearing Care manages a network of audiologists, acting as a middleman between managed care plans and their members. After the Data Breach occurred, the Defendants provided notice to various state Attorneys General explaining that the Data Breach was "insider wrong doing." As a result of the Data Breach, the PII and PHI of more than 3.2 million health plan members were potentially accessed, downloaded, and deleted from Defendants' technological platform. The Defendants began notifying victims of the Data Breach in late May of 2021 -- approximately four months after the Defendants became aware of the potential breach. The Plaintiffs allege that the Defendants failed "to implement and maintain adequate and reasonable data security safeguards, failed to exercise reasonable care in the hiring, training, and supervision of its employees and agents, and failed to comply with industry-standard data security practices and federal and state laws and regulations governing data security and privacy." The Plaintiffs maintain these failures and the ensuing Data Breach have caused them numerous and imminent injuries. The Plaintiffs, on behalf of themselves and purported Class Members, assert the following claims: Negligence, unjust enrichment, breach of confidence, and a violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). They seek injunctive relief, declaratory relief, monetary damages, and any other relief as authorized by law. The Defendants have now moved to dismiss the Plaintiffs' Amended Complaint for lack of Article III standing and alternatively, for failure to state a claim upon which relief can be granted. II. Analysis The Defendants raise several arguments in favor of dismissal, including a lack of subject matter jurisdiction under Rule 12(b)(1) and failure to state a claim under Rule 12(b)(6). A. Plaintiffs have sufficiently alleged Article III standing. Of the three standing prerequisites -- injury in fact, traceability, and redressability -- the Defendants challenge two. First, they contend that two of the five named Plaintiffs fail to allege an injury in fact. And second, that all the named Plaintiffs fail to plausibly allege traceability. Because the Defendants' standing arguments solely address the allegations in the First Amended Complaint rather than any extrinsic materials, this is considered a facial attack, which "requires the Court merely to look and see if the Plaintiffs have sufficiently alleged a basis of subject matter jurisdiction." As this is a facial attack, the allegations in the First Amended Complaint are taken as true for standing purposes. And upon examination of the First Amended Complaint, the Plaintiffs have satisfied the requirements for Article III standing. Judge Ruiz holds that (i) Liang and Johnson's alleged injuries constitute injuries-in-fact sufficient to satisfy claims for injunctive relief and damages; and (ii) the Defendants' failure to secure the Plaintiffs' data is sufficiently traceable to their alleged injuries. Accordingly, all the named Plaintiffs have established Article III standing and the Defendants' Motion to Dismiss for lack of subject matter jurisdiction is denied. B. Plaintiffs have failed to state a claim upon which relief can be granted. The Defendants contend that the Plaintiffs' claims must be dismissed because they are based on conclusory allegations and legal labels. As a result of these deficiencies, the Defendants argue that the Plaintiffs fail to state a claim upon which relief can be granted. Judge Ruiz finds that the Plaintiffs fail to make clear which the Defendants are responsible for certain acts or omissions. As the Defendants correctly note, the Plaintiffs have improperly commingled different liability theories against the Defendants. Accordingly, Count I is dismissed without prejudice. Next, Judge Ruiz finds that the Plaintiffs provided their private information to multiple third parties. They did not affirmatively choose to use the Defendants' services; they did not pay for the Defendants' services nor provide their private information to Defendants. Even if an indirect conferral of benefits were allowed under Florida law -- which it is not -- the Plaintiffs still fail to show that they conferred any benefit sufficient to establish a claim for unjust enrichment. Accordingly, Count II is dismissed without prejudice. Given that he is granting the Plaintiffs leave to amend their operative complaint in conformance with the Order, Judge Ruiz will give the Plaintiffs an opportunity to establish a benefit directly conferred on the Defendants with the specificity necessary to satisfy applicable pleading standards. Judge Ruiz further finds that (i) the Plaintiffs fail to allege any acts of disclosure sufficient to establish a breach of confidence claim; (ii) given the conclusory nature of these allegations, he cannot determine the true extent of the relationship, or lack thereof, between the parties, and dismisses Count III without prejudice; and (iii) despite the presence of standing, the Plaintiffs have failed to establish the actual damages necessary to maintain a FDUTPA claim. III. Conclusion Judge Ruiz concludes that although the Plaintiffs have standing to bring the lawsuit, their claims fail to state a claim upon which relief can be granted and therefore warrant dismissal. Accordingly, he granted in part the Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint. Counts I, II, III, and IV are dismissed without prejudice and with leave to amend. The Plaintiffs will file a Second Amended Complaint in conformance with the Order by March 29, 2022. A full-text copy of the Court's March 15, 2022 Order is available at https://tinyurl.com/ynua6n9v from Leagle.com. 2690 GROCERY: Presinal Seeks Minimum, OT Wages Under FLSA & NYLL ---------------------------------------------------------------- RAFAEL PRESINAL, individually and on behalf of others similarly situated v. 2690 GROCERY CORP. (D/B/A FIRE HOUSE DELI), JUAN CARLOS REYES, LIOMARD MESA, Case No. 1:22-cv-02246 (S.D.N.Y., March 18, 2022) seeks to recover unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938 and the New York Labor Law. Plaintiff Presinal worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage, and overtime compensation for the hours that he worked. Rather, the Defendants allegedly failed to maintain accurate recordkeeping of the hours worked and failed to pay Plaintiff Presinal appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. The Defendants' conduct extended beyond Plaintiff Presinal to all other similarly situated employees, says the suit. At all times relevant to this Complaint, the Defendants allegedly maintained a policy and practice of requiring Plaintiff Presinal and other employees to work in excess of 40 hours per week without providing the minimum wage and overtime compensation required by federal and state law and regulations. Plaintiff Presinal was employed as a stock worker at the deli located at 2690 Third Avenue, Bronx, New York, 10454. The Defendants own, operate, or control a deli, located at 2690 Third Avenue, Bronx, New York, 10454 under the name "Fire House Deli".[BN] The Plaintiff is represented by: Catalina Sojo, Esq. CSM LEGAL, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 6 SOUTH BROADWAY: Class Settlement in Rodriguez Suit Wins Approval ------------------------------------------------------------------ In the case, ISRAEL RODRIGUEZ, individually and on behalf of others similarly situated, Plaintiff v. 6 SOUTH BROADWAY CORP. d/b/a River City Grille, and Robert Manzi, Defendants, Case No. 21 Civ. 7438 (JCM) (S.D.N.Y.), Magistrate Judge Judith C. McCarthy of the U.S. District Court for the Southern District of New York approves the parties' Settlement Agreement and Release of Claims. Plaintiff Rodriguez commenced the putative class action to recover unpaid minimum and overtime wages, spread-of-hour premiums, and liquidated and statutory damages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sections 201, et seq., and the New York Labor Law ("NYLL"), Sections 190, et seq., and 650, et seq. On Dec. 21, 2021, Jan. 11, 2022, and Jan. 19, 2022, the parties engaged in court-ordered mediation, and reached a settlement. On March 2, 2022, the parties submitted a Settlement Agreement and Release of Claims for the Court's review, accompanied by a joint letter in support of the Agreement, as well as attorney's time records and costs. The ultimate question is whether the proposed settlement reflects a fair and reasonable compromise of disputed issues rather than a mere waiver of statutory rights brought about by an employer's overreaching. In the case, Judge McCarthy holds that the parties engaged in early mediation, meeting with the mediator three separate times, and focused on resolving the matter before extensive discovery was conducted. "There is much to admire in this approach, which conserves both attorney time and judicial resources." Furthermore, based on Judge McCarthy's review of the Agreement, the joint letter, and the documentation supporting the reasonableness of the attorney's fees and costs, she finds the settlement was the product of arm's-length negotiations between able counsel and that the terms of the Agreement, including the approval of the Plaintiff's counsel's fees, are a fair and reasonable resolution of the case. Accordingly, Judge McCarthy approves the settlement. The Clerk is respectfully requested to close the case. A full-text copy of the Court's March 11, 2022 Order is available at https://tinyurl.com/ypcjcjuy from Leagle.com. ACADIA LAPLACE: Hamm Seeks Conditional Class Cert of Health Workers ------------------------------------------------------------------- In the class action lawsuit captioned as AMY HAMM, on behalf of herself and all others similarly situated, v. ACADIA LAPLACE HOLDINGS, LLC and OCHSNER-ACADIA, LLC, Case No. 2:20-cv-01515-SM-DMD (E.D. La.), the Plaintiff asks the Court to enter an order: 1. granting her motion for distribution of notice Pursuant to the Fair Labor Standards Act (FLSA); 2. conditionally certifying her FLSA claims as a collective action for the following individuals: "All current and former hourly, non-exempt employees involved with patient care, including but not limited to nurses, nursing staff, nursing assistants, nurse aides, technicians, clerks, non-exempt therapists, or other non- exempt employees with similar job duties employed at any facility owned/operated by Defendants during the time period three years prior to the filing of the original Complaint until resolution of this action;" and 3. requiring Defendants to produce the names and last known contact information for all of the potential opt-in plaintiffs and authorize the issuance of the Proposed Notice and Consent Form, to all members of the putative collective. A copy of the Plaintiff's motion to certify class dated March 7, 2022 is available from PacerMonitor.com at https://bit.ly/3inSspp at no extra charge.[CC] The Plaintiff is represented by: Carolyn H. Cottrell, Esq. David W. Garrison, Esq. Joshua A. Frank, Esq. BARRETT JOHNSTON MARTIN & GARRISON, LLC Philips Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: (615) 244-2202 Facsimile: (615) 252-3798 E-mail: dgarrison@barrettjohnston.com jfrank@barrettjohnston.com - and - Carolyn H. Cottrell, Esq. Ori Edelstein, Esq. SCHNEIDER WALLACE COTTRELL KONECKY LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: ccottrell@schneiderwallace.com oedelstein@schneiderwallace.com - and - Jordyn D. Rystrom Emmert, Esq. SCHNEIDER WALLACE COTTRELL KONECKY LLP 3700 Buffalo Speedway, Suite 960 Houston, TX 77098 Telephone: (713) 338-2560 Facsimile: (415) 421-7105 E-mail: jemmert@schneiderwallace.com AEGIS SENIOR: Melgoza Seeks Minimum & Overtime Wages Under FLSA --------------------------------------------------------------- DANIELA MELGOZA, on behalf of herself and all others similarly situated v. AEGIS SENIOR COMMUNITIES LLC d/b/a AEGIS LIVING, Case No. 5:22-cv-01756 (N.D. Cal., March 18, 2022) stems from the Defendant's policies and practices of: (1) failing to properly compensate Plaintiff and putative Class and Collective members for all hours worked; (2) failing to 8 pay minimum wage for all hours worked; (3) failing to pay all overtime wages owed; (4) failing to 9 make available, authorize, and/or permit Plaintiff and putative Class members to take timely and compliant meal and/or rest periods to which they are entitled by law and failing to make premium payments for those non-compliant meal and rest periods; (5) failing to provide accurate, itemized wage statements, and (6) failing to timely pay all wages due upon separation from employment in violations of the Fair Labor Standards Act (FLSA) and California wage and hour laws. The Plaintiff worked for the Defendant as a caregiver in Aptos, California from November 2021 until January 2022. Her duties included, but were not limited to, assisting residents with activities of daily living; aiding residents in eating, dressing, and washing; providing other care as needed; and reporting resident status. Excluding time worked off the clock, Ms. Melgoza typically 24 worked eight hours per shift and five shifts per week, for a total of 40 hours per week, earning $17.00 per hour. The Plaintiff seeks damages, penalties, and interest to the full extent permitted by the FLSA, California Labor Code, and Industrial Welfare Commission (IWC) Wage Orders. Aegis Senior is part of the residential care facilities industry. The Defendant owns and operates 18 assisted living and memory care facilities across the United States, including in California. The Defendant provides a continuum of care to elder residents suffering from physical and cognitive impairments.[BN] The Plaintiff is represented by: Carolyn Hunt Cottrell, Esq. Samantha A. Smith, Esq. SCHNEIDER WALLACE COTTRELL KONECKY LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: ccottrell@schneiderwallace.com sasmith@schneiderwallace.com AF MASONRY: Emiliano Montiel Seeks Unpaid Overtime Wages Under FLSA ------------------------------------------------------------------- Emiliano Montiel and other similarly situated individuals v. AF Masonry Inc., Arturo Fuentes, and Maribelle B. De La Fuente, individually, Case No. 8:22-cv-00612-MSS-CPT (M.D. Fla., March 16, 2022) is an action to recover money damages for unpaid overtime wages and retaliation pursuant to the Fair Labor Standards Act. These individual Defendants were the employers of Plaintiff and others similarly situated within the meaning of Section 3(d) of the FLSA. AF Masonry is a construction company specialized in foundations, structures, exteriors building, and general construction work.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. Florida Bar No.: 0024031 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com AFRICAN METHODIST: Mismanages Retirement Plan, Alexander Alleges ---------------------------------------------------------------- REVEREND CEDRIC V. ALEXANDER, individually and on behalf of all others similarly situated, Plaintiff v. DR. JEROME v. HARRIS; BISHOP SAMUEL L. GREEN, SR.; TRUSTEES OF THE AFRICAN METHODIST EPISCOPAL CHURCH MINISTERIAL RETIREMENT ANNUITY PLAN; AFRICAN METHODIST EPISCOPAL CHURCH MINISTERIAL RETIREMENT ANNUITY PLAN; AFRICAN METHODIST EPISCOPAL CHURCH DEPARTMENT OF RETIREMENT SERVICES; AFRICAN METHODIST EPISCOPAL CHURCH, INC.; GENERAL BOARD OF THE AFRICAN METHODIST EPISCOPAL CHURCH; COUNCIL OF BISHOPS OF THE AFRICAN METHODIST EPISCOPAL CHURCH; and JOHN AND JANE DOES 1-20, Defendants, Case No. 8:22-cv-00707-TJS (D.M.D., Mar. 22, 2022) alleges violation of the Employee Retirement Income Security Act ("ERISA"). According to the complaint, the action is about a complete and total abrogation of the fiduciary responsibilities by the Defendants, resulting in numerous breaches of duty and resulting in a single, unmonitored individual, Defendant Harris, controlling all Plan assets and investments. Dr. Harris invested Plan assets in imprudent, extraordinarily risky investments that ultimately lost nearly $100 million of Plan participants' retirement savings. In its disloyalty and imprudence to the retirement security of those serving the Church, Defendants provided Dr. Harris sole authority to invest tens of millions of African Methodist Episcopal Church, Inc., a Pennsylvania Corporation ("AMEC," or "the Church") clergy's and other Church servants' retirement savings in a questionable and potentially unlawful purchase of undeveloped land in Florida, a promissory note to an Illinois installer of solar panels, and an even more foolish investment in a now non-existent capital venture outfit. As of the date of the filing of the Complaint, the Plaintiff has not received any of his retirement benefits, despite being retired, without much income, for well over a year, says the suit. AFRICAN METHODIST EPISCOPAL CHURCH, usually called the A.M.E. Church or AME, is a predominantly African-American Methodist denomination. [BN] The Plaintiff is represented by: Elizbeth Hopkins, Esq. Scott M. Lempert, Esq. Susan L. Meter, Esq. KANTOR & KANTOR, LLP 19839 Nordhoff Street Northridge, CA 91324 Telephone: (877) 783-8686 Facsimile: (253) 285-1849 Email: ehopkins@kantorlaw.net slempert@kantorlaw.net smeter@kantorlaw.net AKEBIA THERAPEUTICS: Deputy Sues Over Share Price Decline --------------------------------------------------------- DAVID DEPUTY, individually and on behalf of all others similarly situated, Plaintiff v. AKEBIA THERAPEUTICS, INC., JOHN P. BUTLER, DAVID A. SPELLMAN, and JASON A. AMELLO, Defendants, Case No. 1:22-cv-01411 (E.D.N.Y., March 14, 2022) is a federal securities class action brought by the Plaintiff, on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Akebia securities between June 28, 2018 and September 2, 2020, both dates inclusive, seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. Akebia is a biopharmaceutical company that focuses on the development and commercialization of renal therapeutics for patients with kidney diseases. The Company's lead investigational product candidate is vadadustat, an oral therapy, which is in Phase 3 development for the treatment of anemia due to chronic kidney disease in dialysis-dependent and non-dialysis dependent adult patients. Throughout the Class Period, Defendants allegedly made materially false and misleading statements regarding the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) vadadustat was not as safe in treating NDD-CKD patients with anemia as Defendants had represented; (ii) as a result, Defendants overstated the PRO2TECT Program's clinical prospects; (iii) accordingly, Defendants also overstated vadadustat's overall commercial and regulatory prospects; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. On this news, Akebia's common stock price fell $7.35 per share, or 73.5%, to close at $2.65 per share on September 3, 2020. As a result of Defendants' alleged wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the suit.[BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. James M. LoPiano, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com jlopiano@pomlaw.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 Facsimile: (212) 697-7296 E-mail: peretz@bgandg.com AKIMA SUPPORT: Class Settlement in Avery Suit Wins Prelim. Nod -------------------------------------------------------------- The U.S. District Court for the Eastern District of California grants the renewed motion for preliminary approval of class settlement in the lawsuit styled Devier Avery, et al., Plaintiffs v. Akima Support Operations, Defendant, Case No. 2:19-cv-00924-KJM-AC (E.D. Cal.). On Aug. 13, 2021, the Court denied without prejudice the unopposed motion for preliminary approval of a proposed class action settlement in the action. At the time, counsel for the putative class had not proposed notice that met the standard of Rule 23 of the Federal Rules of Civil Procedure. The Court permitted counsel to supplement the record on the pending motion with a copy of the notice and up to five pages of briefing explaining why the notice satisfies the applicable law. Counsel has now supplemented the record and renewed the motion for preliminary certification. The Court has reviewed the proposed notice. It communicates the information required by Rule 23: (i) The nature of the action; (ii) The definition of the proposed class; (iii) The relevant claims, issues, and defenses; (iv) A class member may enter an appearance through an attorney; (v) The Court will exclude from the proposed class anyone who requests; (vi) When and how to request exclusion; and (vii) The binding effect of a class judgment. Although the proposed notice could be clearer and more concise, and although it could have been written with more understandable language, it meets the requirements of Rule 23, District Judge Kimberly J. Mueller holds. The renewed motion for preliminary certification is, thus, granted. A final fairness hearing is set for Sept. 9, 2022, at 10:00 a.m. A full-text copy of the Court's Order dated March 7, 2022, is available at https://tinyurl.com/2p88pnj9 from Leagle.com. ALLIANCE HEALTH: Fischler Sues Over Blind-Inaccessible Website -------------------------------------------------------------- BRIAN FISCHLER, individually and on behalf of all other persons similarly situated, Plaintiff v. ALLIANCE HEALTH, LLC D/B/A ALLIANCE HEALTH, Defendant, Case No. 1:22-cv-02076-MKV (S.D.N.Y., March 14, 2022) arises from the Defendant's failure to design, construct, maintain, and operate its website -- https://alliance.health/ -- to be fully accessible to and independently usable by the Plaintiff and other blind or visually impaired people, in violation of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. The Plaintiff alleges that the Defendant engaged in acts of intentional discrimination due to the inaccessibility of its website, and seeks a permanent injunction to cause Defendant to change its corporate policies, practices, and procedures so that its website will become and remain accessible to blind and visually impaired consumers. Alliance Health, LLC d/b/a Alliance Health is a COVID-19 testing provider, administering RT-PCR and Rapid Antibody Tests at its New York locations.[BN] The Plaintiff is represented by: Christopher H. Lowe, Esq. Douglas B. Lipsky, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170 Telephone: (212) 392-4772 Facsimile: (212) 444-1030 E-mail: chris@lipskylowe.com doug@lipskylowe.com ALLIANT INSURANCE: Begian Sues for Denied Insurance Policy Coverage ------------------------------------------------------------------- HARRY HARMIK BEGIAN, an individual; DEBRA S. PEART, and individual, MAXIMINO PIMENTEL DUARTE, an individual, JOE MURPHY, an individual, and on behalf of all others similarly situated, Plaintiffs v. ALLIANT INSURANCE GROUP, an entity of unknown nature, ALLIANT INSURANCE SERVICES, INC., an entity of unknown nature; MCLARENS GLOBAL CLAIMS SERVICES, an entity of unknown nature; LEXINGTON INSURANCE COMPANY, an entity of unknown nature; ASPEN SPECIALTY INSURANCE COMPANY, an entity of unknown nature; UNDERWRITERS AT LLOYDS, an entity of unknown nature; LLOYD’S SYNDICATES, an entity of unknown nature; ONE BEACON-HOMELAND INSURNACE COMPANY OF NEW YORK; an entity of unknown nature; HALLMARK SPECIALTY INSURANCE CO., an entity of unknown nature; XL CATLIN INSURANCE COMPANY UK LTD, an entity of unknown nature; ENDURANCE WORLDWIDE INSURANCE LTD/AS SOMPO INTERNATIONAL, an entity of unknown nature; ASPEN INSURANCE UK LTD., an entity of unknown nature; IRONSHORE SPECIALTY INSURANCE COMPAY, an entity of unknown nature; BRIT GLOBAL SPECIALTY LONDON SYNDICATES; an entity of unknown nature; IRONSHORE EUROPE DAC, an entity of unknown nature; EVANSTON INS. CO., an entity of unknown nature; RUSI - LANDMARK AMERICAN INSURANCE COMPANY, an entity of unknown format; ARCH SPECIALTY INSURANCE COMPANY, an entity of unknown nature; EVEREST INDEMNITY INSURANCE COMPANY, an entity of unknown nature; PARTNERRE IRELAND INSURANCE DAC, an entity of unknown nature; CHUBB EUROPEAN GROUP SE, an entity of unknown nature; SYND 2015 CHN, an entity of unknown nature; SWISS RE- WESTPORT INSURANCE CORPORATION; an entity of unknown nature; BERKSHIRE HATHAWAY, an entity of unknown format; NATIONAL FIRE & MARINE INSURANCE COMPANY; an entity of unknown nature; LANCASHIRE INSURANCE COMPANY (UK) LTD, an entity of unknown format; NEON WORLDWIDE PROPERTY CONSORTIUM 9761; an entity of unknown format; MARKEL-EVANSTON INSURANCE COMPANY; an entity of unknown format; WESTPORT INSURANCE COMPANY (SWISS RE), an entity of unknown nature; XL INSURANCE AMERICA, INC., an entity of unknown nature; SIU-QBE, an entity of unknown nature, and DOES 1 through 20, inclusive, Defendants, Case No. 22STCV09034 (Cal. Super., Los Angeles Cty., March 14, 2022) alleges that Defendants breached their duty to perform under their contracted insurance policy and breached the covenant of good faith and fair dealing when Defendants denied Plaintiffs' claims for losses. According to the complaint, Plaintiffs and all other similarly situated individuals and entities were jointly covered by one policy of insurance issued by Defendants during the period of July 1, 2019 through June 30, 2020, and were denied benefits under the policy when they suffered losses as a result of the pandemic. The Plaintiffs and Class Members also seek injunctive relief, restitution, and disgorgement of all benefits Defendants enjoyed from their failure to pay proper coverage pursuant to the parties' insurance policy. Alliant Insurance Group is an insurance company based in Newport Beach, California.[BN] The Plaintiffs are represented by: Ramin R. Younessi, Esq. LAW OFFICES OF RAMIN R. YOUNESSI A PROFESSIONAL LAW CORPORATION 3435 Wilshire Boulevard, Suite 2200 Los Angeles, CA 90010 Telephone: (213) 480-6200 Facsimile: (213) 480-6201 ALTERYX INC: Chau Securities Case Dismissed ------------------------------------------- Alteryx, 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 15, 2022, that in August 3, 2021, a putative securities class action lawsuit filed against Alteryx and certain of its executive officers in U.S. federal court relating to alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 was dismissed. The case docketed "Chau v. Alteryx, Inc.," Case No. 8:20-cv-01886 (September 30, 2020, C.D. Cal.), was filed against Alteryx and certain of its executive officers in U.S. federal court relating to alleged violations the Securities Exchange Act of 1934. Said case was consolidated into one action, "In re Alteryx, Inc. Securities Litigation," Case No. 8:20-cv-01540 (C.D. Cal). On January 28, 2021, a first amended complaint was filed asserting claims on behalf of persons and entities that purchased or otherwise acquired Alteryx securities between February 13, 2020 and August 7, 2020. Lead Plaintiffs alleged that such persons and entities were harmed as a result of certain alleged false or misleading statements, or omissions, made by Alteryx and certain of our executive officers. On March 19, 2021, Alteryx filed a motion to dismiss the consolidated complaint, which the Court granted in its entirety on June 17, 2021. The Court entered final judgment in Alteryx's favor on August 3, 2021. Alteryx is into Analytic Process Automation unifying analytics, data science and business process automation in one self-service platform to accelerate digital transformation, delivering high-impact business outcomes, accelerating the democratization of data and rapidly upskill modern workforces. ALTERYX INC: Lalgudi Securities Suit Junked ------------------------------------------- Alteryx, 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 15, 2022, that that in August 3, 2021, a putative securities class action lawsuit filed against Alteryx and certain of its executive officers in U.S. federal court relating to alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 was dismissed. The case docketed "Lalgudi v. Alteryx, Inc.," Case No. 8:20-cv-01910 (October 2, 2020, C.D. Cal.) was filed against Alteryx and certain of its executive officers in U.S. federal court relating to alleged violations the Securities Exchange Act of 1934. Said case was consolidated into one action, "In re Alteryx, Inc. Securities Litigation," Case No. 8:20-cv-01540 (C.D. Cal). On January 28, 2021, a first amended complaint was filed asserting claims on behalf of persons and entities that purchased or otherwise acquired Alteryx securities between February 13, 2020 and August 7, 2020. Lead Plaintiffs alleged that such persons and entities were harmed as a result of certain alleged false or misleading statements, or omissions, made by Alteryx and certain of our executive officers. On March 19, 2021, Alteryx filed a motion to dismiss the consolidated complaint, which the Court granted in its entirety on June 17, 2021. The Court entered final judgment in Alteryx's favor on August 3, 2021. Alteryx is into Analytic Process Automation unifying analytics, data science and business process automation in one self-service platform to accelerate digital transformation, delivering high-impact business outcomes, accelerating the democratization of data and rapidly upskill modern workforces. ALTERYX INC: Smith Securities Class Suit Tossed ----------------------------------------------- Alteryx, 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 15, 2022, that in August 3, 2021, a putative securities class action lawsuit filed against Alteryx and certain of its executive officers in U.S. federal court relating to alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 was dismissed. The case docketed "Smith v. Alteryx, Inc.," Case No. 8:20-cv-01540 (August 19, 2020, C.D Cal.) was filed against Alteryx and certain of its executive officers in U.S. federal court relating to alleged violations the Securities Exchange Act of 1934. Said case was consolidated into one action, "In re Alteryx, Inc. Securities Litigation," Case No. 8:20-cv-01540 (C.D. Cal). On January 28, 2021, a first amended complaint was filed asserting claims on behalf of persons and entities that purchased or otherwise acquired Alteryx securities between February 13, 2020 and August 7, 2020. Lead Plaintiffs alleged that such persons and entities were harmed as a result of certain alleged false or misleading statements, or omissions, made by Alteryx and certain of our executive officers. On March 19, 2021, Alteryx filed a motion to dismiss the consolidated complaint, which the Court granted in its entirety on June 17, 2021. The Court entered final judgment in Alteryx's favor on August 3, 2021. Alteryx is into Analytic Process Automation unifying analytics, data science and business process automation in one self-service platform to accelerate digital transformation, delivering high-impact business outcomes, accelerating the democratization of data and rapidly upskill modern workforces. AMEER FOOD: Cornelio Sues Over Unpaid Wages for Grill Cooks ----------------------------------------------------------- GONZALO CORNELIO, on behalf of himself and all others similarly situated, Plaintiff v. AMEER FOOD CORP. (D/B/A AMEER FOOD CORP.), ZACK ABDO, and ADMAN ISMAIL, Defendants, Case No. 1:22-cv-02252 (S.D.N.Y., March 18, 2022) is a class action against the Defendants for violations of the New York Labor Law and the Fair Labor Standards Act including failure to pay minimum wages, failure to pay overtime wages, failure to provide accurate wage statements, failure to provide wage notices, illegal wage deductions, and failure to timely pay wages. Mr. Cornelio was employed as a grill cook at the Defendants' deli and grocery from approximately January 26, 2021 until December 4, 2021. Ameer Food Corp. is an owner and operator of a deli and grocery located in Upper Manhattan, New York. [BN] The Plaintiff is represented by: Catalina Sojo, Esq. CSM LEGAL, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 AMERICAN HONDA: Class Cert. Order Amendment in Quackenbush ---------------------------------------------------------- In the class action lawsuit captioned as QUACKENBUSH et al., v. AMERICAN HONDA MOTOR COMPANY, INC. et al., Case No. 3:20-cv-05599-WHA (N.D. Cal.), the Plaintiffs ask the Court to enter an order that the Class Certification Order be amended. The Court's February 25, 2022 Order allowed the parties to address certain other matters. The Plaintiffs believe that most such corrections are straightforward and addressed by the above briefing. Additionally, Plaintiffs request that the Court modify the Certification Order to include the following definition of who is excluded from the Class: Excluded from the California and Illinois Classes are: (1) Defendants, any entity or division in which Defendants have a controlling interest, and its legal representatives, officers, directors, assigns, and successors; (2) the Judge to whom this case is assigned and the Judge's staff; and (3) those persons who have suffered personal injuries as a result of the alleged facts. On December 27, 2021 this Court granted in part Plaintiffs' Motion for Class Certification. Both parties then filed motions for leave to file motions for reconsideration of the Certification Order. On February 25, 2022 the Court granted those motions as to five main issues, and certain additional matters. Courts routinely permit named plaintiffs who, like Ms. Quackenbush, paid to repair a vehicle defect, to represent class members who similarly purchased a defective vehicle but did not pay for a repair (who typically constitute the bulk of automotive defect classes). Ms. Quackenbush is a member of both classes -- she purchased a Class Vehicle and she had it repaired. For example, in Wolin plaintiffs alleged that "a geometry defect in the vehicles' alignment allegedly caused uneven and premature tire wear." The named plaintiff Gable incurred expenses to replace his prematurely worn tires. See id. at 1171. Following remand, the District Court granted Gable's motion to certify a class broadly consisting of "[a]ll current and former owners and lessees of model year 2004, 2005, and 2006 Land Rover LR3s purchased or leased in the state of Michigan," limiting the class to those who had incurred expenses like Gable. In Nguyen the plaintiff's allegedly defective clutch malfunctioned and he "spent more than 6 $700 replacing it." The Plaintiff sought to certify a broad class consisting of "all individuals in California who purchased or leased, from an authorized Nissan dealer, a new Nissan vehicle equipped with a FS6R31A manual transmission." Nowhere did the Ninth Circuit suggest that the named plaintiff having paid for repairs barred him from representing class members who had not. To the contrary, the Ninth Circuit reversed the District Court's denial of class certification, concluding that "Plaintiff's theory of liability -- that Nissan's manufacture and of a defective clutch system injured class members at the time of sale -- is consistent with his proposed recovery based on the benefit of the bargain." The American Honda Motor Company, Inc. is the North American Honda subsidiary of the Honda Motor Company, Ltd. A copy of the Plaintiffs' motion dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3Ir5TQ6 at no extra charge.[CC] The Plaintiffs are represented by: Lionel Z. Glancy, Esq. Marc L. Godino, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, California 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com mgodino@glancylaw.com - and - Mark S. Greenstone, Esq. GREENSTONE LAW APC 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9156 Facsimile: (310) 201-9160 E-mail: mgreenstone@greenstonelaw.com AMGEN INC: Faces Antitrust Suit Over Generic Drug -------------------------------------------------- Amgen 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 16, 2022, that it is facing an anti-trust litigation in the District of Delaware made up of a four class action suits over the drug Sensipar. From February to April 2019, four plaintiffs filed putative class action lawsuits against Amgen and various entities affiliated with Teva Pharmaceuticals USA, Inc. (Teva) alleging anticompetitive conduct in connection with settlements between Amgen and manufacturers of generic "cinacalcet" product. Two of those actions were brought in the Delaware District Court, captioned "UFCW Local 1500 Welfare Fund v. Amgen Inc., et al." (February 21, 2019), "Local 1500 and Cesar Castillo, Inc. v. Amgen Inc., et al." (February 26, 2019). The third action was brought in the New Jersey District Court, captioned "Teamsters Local 237 Welfare Fund, et al. v. Amgen Inc., et al." (March 14, 2019) and the fourth action was brought in the U.S. District Court for the Eastern District of Pennsylvania captioned "KPH Healthcare Services, Inc. a/k/a Kinney Drugs, Inc. v. Amgen Inc., et al" (April 10, 2019). Each of the lawsuits is brought on behalf of a putative class of direct or indirect purchasers of Sensipar and alleges that the plaintiffs have overpaid for Sensipar as a result of Amgen's conduct that allegedly improperly delayed market entry by manufacturers of generic "cinacalcet" products. The lawsuits focus predominantly on the settlement among Amgen, Watson Laboratories, Inc. and Teva of the parties' patent infringement litigation. Each of the lawsuits seeks, among other things, treble damages, equitable relief and attorneys' fees and costs. On April 10, 2019, the plaintiff in the KPH lawsuit filed a motion seeking to have the four lawsuits consolidated and designated as a multidistrict litigation (MDL) in the Eastern Pennsylvania District Court, and the plaintiff in the Local 1500 lawsuit filed a motion seeking to have the four lawsuits, along with Cipla Ltd. v. Amgen Inc., consolidated and designated as an MDL in the Delaware District Court. On July 31, 2019, the MDL panel entered an order consolidating in the Delaware District Court the four class action lawsuits. On September 13, 2019, the plaintiffs filed amended complaints, and on October 15, 2019, Amgen filed its motion to dismiss both the direct purchaser plaintiffs' consolidated class action complaint and the indirect purchaser end payor plaintiffs' complaint. On December 6, 2019, the plaintiffs responded to Amgen's motion to dismiss and, on January 10, 2020, Amgen filed its response. On February 6, 2020, the motions in the class action lawsuits were transferred to the U.S. Magistrate Judge for the District of Delaware for a recommendation. The MDL panel certified its conditional transfer order on February 6, 2020 transferring the additional class action lawsuit brought in the U.S. District Court for the Southern District of Florida, captioned "MSP Recovery Claims v. Amgen Inc., et al.," to the Delaware District Court. On July 22, 2020, the Magistrate Judge issued a recommendation to the Delaware District Court that the claims against Amgen be dismissed but leave be given to plaintiffs to amend their complaints. On August 5, 2020, the plaintiffs filed objections to the Magistrate Judge's report and recommendation. On August 19, 2020, Amgen filed a response to the plaintiffs' objections. On November 30, 2020, the District Court adopted the Magistrate Judge's recommendation in part and denied it in part, denying Amgen's motion to dismiss on the grounds that plaintiffs adequately alleged reverse payment claims but granted Amgen's motion to dismiss with respect to the other Federal antitrust claims. On December 23, 2020, Teva, Watson and Actavis filed a motion for interlocutory appeal and for a stay pending appeal and Amgen filed its joinder (the 1292 Motion). On January 5, 2021, a joint status report was filed advising the Delaware District Court that the defendants are still considering whether to withdraw the 1292 Motion and plaintiffs' offer to stay discovery, pending further rulings on motions to dismiss the amended complaints. On January 19, 2021, a joint status report was filed pursuant to the Delaware District Court's January 6, 2021 order along with a stipulation to defer the 1292 Motion until after rulings on the amended complaints. On February 16, 2021, the plaintiffs in the antitrust class action lawsuit brought on behalf of putative classes of direct or indirect purchasers of Sensipar filed their amended complaints. On March 4, 2021, a stipulation and order regarding the filing of a second amended complaint were filed to add another plaintiff: Teamsters Western Region & Local 177 Health Care Fund. On March 17, 2021, a defendant, MSP Recovery Claims, Series LLC, filed its notice of voluntary dismissal. On March 30, 2021, the remaining defendants, including Amgen, filed their motions to dismiss the second amended complaint. On April 27, 2021, plaintiffs filed their oppositions to defendants' (including Amgen's) motion to dismiss, and defendants' reply was filed on May 25, 2021. A hearing on defendants' motion to dismiss was held in the Delaware District Court on July 13, 2021. Amgen Inc. is a biotechnology company into human therapeutics. ANDERSON AVE: Farrell Sues Over Unpaid Minimum, Overtime Wages -------------------------------------------------------------- BRANDON FARRELL, on behalf of himself and all others similarly situated, Plaintiff v. ANDERSON AVE LLC a/k/a/ SEDONA TAPHOUSE, MENDI ZUTA, and EDWARD YOUNG, Defendants, Case No. 2:22-cv-01374 (D.N.J., March 14, 2022) seeks to recover minimum and overtime wages for Plaintiff and his similarly situated co-workers pursuant to the Fair Labor Standards Act, the New Jersey Wage and Hour Law, and the New Jersey Wage Payment Law. The Plaintiff worked for the Defendants as a tipped food-service worker from April 2021 until December 2021. Anderson Ave LLC a/k/a/ Sedona Taphouse owns and operates a restaurant in Cliffside Park, New Jersey.[BN] The Plaintiff is represented by: David Harrison, Esq. HARRISON, HARRISON & ASSOC., LTD. 110 State Highway 35, 2nd Floor Red Bank, NJ 07701 Telephone: (888) 239-4410 E-mail: dharrison@nynjemploymentlaw.com - and - Glen Savits, Esq. GREEN SAVITS, LLC 25B Vreeland Road Florham Park, NJ 07932 Telephone: (973) 695-7777 E-mail: gsavits@greensavits.com ANTHEM INC: Faces Consolidated ERISA Suit ------------------------------------------ Anthem Inc. disclosed in its Form 10-K Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 16, 2022, that it is facing a single multi-district lawsuit captioned "In Re Express Scripts/Anthem ERISA Litigation," in the U.S. District Court for the Southern District of New York. A class action lawsuit was initially filed in June 2016 against Anthem, Inc. and Express Scripts citing violations of the Employee Retirement Income Security Act of 1974 (ERISA), which has been consolidated. The consolidated complaint was filed by plaintiffs against Express Scripts and the company on behalf of all persons who are participants in or beneficiaries of any ERISA or non-ERISA healthcare plan from December 1, 2009 to December 31, 2019 in which Anthem provided prescription drug benefits through the ESI pharmacy benefit management (PBM) agreement and paid a percentage based co-insurance payment in the course of using that prescription drug benefit. The plaintiffs allege that Anthem breached duties, either under ERISA or with respect to the implied covenant of good faith and fair dealing implied in the health plans, (i) by failing to adequately monitor Express Scripts' pricing under the ESI PBM Agreement, (ii) by placing pecuniary interest above the best interests of the insureds by allegedly agreeing to higher pricing in the ESI PBM Agreement in exchange for the purchase price for Anthem's "NextRx" PBM business, and (iii) with respect to the non-ERISA members, by negotiating and entering into the ESI PBM Agreement that was allegedly detrimental to the interests of such non-ERISA members. Plaintiffs seek to recover all losses suffered by the proposed class, equitable relief, disgorgement of alleged ill-gotten gains, injunctive relief, attorney’s fees and costs and interest. In April 2017, Anthem filed a motion to dismiss the claims brought against the company, and it was granted, without prejudice, in January 2018. Plaintiffs pursued an appeal with the United States Court of Appeals for the Second Circuit. In December 2020, the Second Circuit affirmed the trial court's order dismissing the ERISA complaint. Plaintiffs filed a Petition for Rehearing and Rehearing En Banc, which was denied. Plaintiffs filed a writ of certiorari with the United States Supreme Court, which we opposed. In December 2021, the United States Supreme Court requested that the Solicitor General submit a brief "expressing the views of the United States" as to whether the Court should grant plaintiffs' writ. Anthem is a health benefits company. ARCHER DANIELS: AOT, Maize Seek to Clarify March 7, 2022 Order -------------------------------------------------------------- In the class action lawsuit captioned as AOT HOLDING AG and MAIZE CAPITAL GROUP, LLC, individually and on behalf of all others similarly situated, v. ARCHER DANIELS MIDLAND COMPANY, Case No. 2:19-cv-02240-CSB-EIL (C.D. Ill.) the Plaintiffs ask the Court to clarify its March 7, 2022 text order. In that order, the Court stated that Plaintiffs' motion for class certification was "denied as moot, with leave to renew after the Court rules on Motions," which are the parties' respective motions to exclude expert testimony. The Court's February 28, 2022 text order, entered a week earlier, instructed Plaintiffs to file by March 15, 2022 a response to ADM's surreply in opposition to class certification. Another February 28 order also granted several of the parties' motions for leave to file documents under seal, including briefs and exhibits related to Plaintiffs' motion for class certification, and "direct[ed] the parties to refile those documents which the parties agree to redact or unseal in their entirety." To aid in properly interpreting and complying with the Court's orders, Plaintiffs respectfully request that the Court clarify whether: (1) The Court's March 7 order was intended simply to hold Plaintiffs' motion for class certification in abeyance, without affecting its February 28 orders instructing Plaintiffs to file a further response in support of class certification by March 15, and the parties to refile redacted and unsealed versions of documents related to class certification; or (2) The Court's March 7 order was intended to supersede its February 28 orders, and thus to suspend entirely the completion of briefing related to class certification, including refiling redacted and unsealed versions of documents related to class certification. The Plaintiffs would appreciate the Court's clarification so that they do not inadvertently violate the Court's February 28 or March 7 orders either by filing a brief on March 15 that they should not file, or by failing to file a brief that they should file. AOT Holding is located in Steinhausen, ZUG, Switzerland and is part of the Other Investment Pools and Funds Industry. ADM is an American multinational food processing and commodities trading corporation founded in 1902 and headquartered in Chicago. A copy of the Plaintiffs' motion dated March 7, 2022 is available from PacerMonitor.com at https://bit.ly/34Z6Ml6 at no extra charge.[CC] The Plaintiffs are represented by: Michael E. Klenov,Esq. Stephen M. Tillery,Esq. Michael E. Klenov,Esq. Carol L. O'Keefe,Esq. KOREIN TILLERY LLC 505 North 7th Street, Suite 3600 St. Louis, MO 63101 Telephone: 314-241-4844 Facsimile: 314-241-3525 E-mail: stillery@koreintillery.com mklenov@koreintillery.com cokeefe@koreintillery.com - and - George A. Zelcs, Esq. John A. Libra, Esq. Chad E. Bell, Esq. Ryan Z. Cortazar, Esq. KOREIN TILLERY LLC 205 North Michigan Ave., Suite 1950 Chicago, IL 60601 Telephone: (312) 641-9750 Facsimile: (312) 641-9751 E-mail: gzelcs@koreintillery.com jlibra@koreintillery.com cbell@koreintillery.com rcortazar@koreintillery.com ARCHER DANIELS: Class Certification Deadlines Entered in MRE Suit ----------------------------------------------------------------- In the class action lawsuit captioned as Midwest Renewable Energy LLC v. Archer Daniels Midland Company, Case No. 2:20-cv-02212 (C.D. Ill.), the Hon. Judge Colin Stirling Bruce entered an order setting class certification deadlines as follows: -- The Plaintiff shall make April 15, 2022 Plaintiff's class certification experts available for deposition by: -- The shall file Defendant's April 29, 2022 Opposition to Class Certification and any Daubert motion(s) by: -- The Defendant shall make June 8, 2022 Defendant's class certification experts available for deposition by: -- The Plaintiff shall file its Reply July 26, 2022 in Support of its Motion for Class Certification, its Response to Defendant's Daubert motion(s), and any Daubert motion(s) of Plaintiff's own by: -- The Defendant shall file Defendant's Aug. 9, 2022 Reply in Support of its Daubert motion(s) by: -- The Defendant shall file Defendant's Aug. 25, 2022 Responses to Plaintiff's Daubert motion(s) by: -- The Plaintiff shall file Plaintiff's Sept. 8, 2022 Reply in Support of its Daubert motions by: -- Fact discovery for all parties shall Oct. 4, 2022 close on: The nature of suit states Other Statutes -- Antitrust. The Archer-Daniels-Midland Company, commonly known as ADM, is an American multinational food processing and commodities trading corporation founded in 1902 and headquartered in Chicago, Illinois.[CC] ARCONIC INC: Faces Consolidated Securities Class Suit ----------------------------------------------------- Howmet Aerospace Inc. (the new name for Arconic Inc.) and Arconic 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 14, 2022, that it is currently facing two purported class actions filed in 2017 against Arconic Inc., Klaus Kleinfeld and other former Arconic Inc. executives and directors, and certain banks. The actions, which later were consolidated, (Howard v. Arconic Inc. et al.) allege violations of the federal securities laws. A motion remains pending for certification of an interlocutory appeal. On June 23, 2021, the court ruled that certain claims related to a particular registration statement, other SEC filings, product brochures and websites can proceed and dismissed all other claims with prejudice. A status conference was held before the court on January 11, 2022 during which the court heard arguments from both parties on the pending motion for certification of an interlocutory appeal. The motion remains pending. Howmet Aerospace Inc. is a provider of advanced engineered solutions for the aerospace and transportation industries based in Pennsylvania. On April 1, 2020, Arconic Inc. completed the separation of its business into two independent, publicly-traded companies namely Howmet Aerospace Inc. BELDEN INC: Edke Class Action Stayed ------------------------------------ Belden 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 15, 2022, that in January 2021, plaintiff Anand Edke filed a putative class action lawsuit against the company in the Circuit Court of Cook County, Illinois, Case No. 2021 CH 47 after it announced a data incident involving unauthorized access and copying of some current and former employee data, as well as limited company information regarding some business partners in November 24, 2020. The Edke case was transferred to the U.S. District Court for the Eastern District of Missouri and subsequently stayed pursuant to the joint request of the parties. Belden Inc. provides a complete suite of end-to-end specialty networking solutions. BELDEN INC: Faces Mackey Suit Over Data Breach ----------------------------------------------- Belden 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 15, 2022, that in February 2021, a certain Kia Mackey filed a putative class action lawsuit against the company in the U.S District Court for the Eastern District of Missouri, Case No. 4:21-CV-00149 demanding injunctive relief, unspecified damages, and unspecified legal fees. On November 24, 2020, the Company announced a data incident involving unauthorized access and copying of some current and former employee data, as well as limited company information regarding some business partners. Belden Inc. provides a complete suite of end-to-end specialty networking solutions. BHJ USA: Lopez Wage-and-Hour Suit Removed to E.D. California ------------------------------------------------------------ The case styled RALPH LOPEZ, individually and on behalf of all others similarly situated v. BHJ USA, LLC and DOES 1 through 100, inclusive, Case No. 21C-0402, was removed from the Superior Court of the State of California for the County of Kings to the U.S. District Court for the Eastern District of California on March 18, 2022. The Clerk of Court for the Eastern District of California assigned Case No. 1:22-at-00173 to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California's Business and Professions Code including failure to pay minimum wages, failure to pay all overtime wages, failure to provide meal periods, failure to provide rest periods, waiting time penalties, failure to provide accurate wage statements, unfair competition, and failure to reimburse for necessary expenses. BHJ USA, LLC is an international supplier of fresh/frozen fish and meat raw materials, headquartered in Ankeny, Iowa. [BN] The Defendant is represented by: Kirstin E. Muller, Esq. HIRSCHFELD KRAEMER LLP 233 Wilshire Boulevard, Suite 600 Santa Monica, CA 90401 Telephone: (310) 255-0705 Facsimile: (310) 255-0986 E-mail: kmuller@hkemploymentlaw.com - and – Anna Pham, Esq. HIRSCHFELD KRAEMER LLP 456 Montgomery Street, Suite 2200 San Francisco, CA 90401 Telephone: (415) 835-9000 Facsimile: (415) 834-0443 E-mail: apham@hkemploymentlaw.com BLACKBERRY LTD: Court Rules on Motions in Limine in Pearlstein Suit ------------------------------------------------------------------- In the case, MARVIN PEARLSTEIN, Individually and on behalf of All Others Similarly Situated, Plaintiff v. BLACKBERRY LIMITED (f/k/a/ RESEARCH IN MOTION LIMITED), THORSTEN HEINS, BRIAN BIDULKA, and STEVE ZIPPERSTEIN, Defendants, Case No. 13 Civ. 7060 (CM)(KHP) (S.D.N.Y.), Judge Cikkeeb McMahon of the U.S. District Court for the Southern District of New York issued a decision ruling on the parties' motions in limine. I. Plaintiffs' Motions Motion No. 1: The Plaintiffs move to exclude any evidence or argument relating to a defense of advice of counsel. Judge McMahon holds that any such defense has been waived and no testimony or argument concerning same will be permitted. This does not mean that the Defendants cannot introduce evidence that lawyers attended meetings or reviewed disclosure documents. However, the jury will be instructed that there is no evidence in the case that the Defendants actually relied on the advice of any attorneys who attended meetings or reviewed documents. The jurors will also be told that it that they cannot infer that any attorney signed off on or approved of the decisions and disclosures that were eventually taken or made from the fact of attendance or review. The Defendants are free to argue that the attendance of lawyers is evidence that they acted in good faith -- that they would not have lawyers around if they were not acting in good faith -- but more than that they simply cannot say, or even suggest. Motion No. 2: The Plaintiffs move to exclude testimony from class representatives Mary Dinzik and Todd Cox, evidence or argument "regarding the class representatives," including their failure to testify or absence from the trial. The motion is denied. Judge McMahon states that the named Plaintiffs are parties to the lawsuit and the Defendants have every right to call them to the stand. It is true that the issue of class-wide damages will not be resolved at this trial and if the jury concludes that there was a fraud on the market, the named Plaintiffs are no less entitled to the benefit of the presumption raised by that theory than are absent class members. However, fraud on the market merely raises a presumption of reliance, and the Defendants are entitled to elicit evidence that the named Plaintiffs did not in fact rely on market conditions in connection with their trading activity. If, however, this evidence can be elicited from Mr. Cox, because he made the trading decisions for both named Plaintiffs, the defense counsel will not be allowed to ask the jury to draw any negative inference from the fact that Ms. Dinzik did not testify, since a civil plaintiff, unlike a criminal defendant, has no obligation to be present during her trial. Motion No. 3: The Plaintiffs move to exclude argument concerning aggregate damages, the Defendants' ability to pay, and/or the effect of a judgment for the Plaintiffs. Judge McMahon granted the motion with this exception: Assuming the number of outstanding shares is in evidence, the Defendants may point out to the jury the total amount of damages sought by the Plaintiffs in the lawsuit. That is all they may do. They may not offer any evidence of the Defendants' ability to pay or of the effect that a judgment of that magnitude would have on BlackBerry the corporation or any of the individual defendants. Motion No. 4: The Plaintiffs move to limit the cross-examination of their experts by precluding the Defendants from questioning them about rulings made by other judges in other cases concerning the scope of their expertise. If the motion is intended to preclude the Defendants from introducing the rulings of other judges on other Daubert motions, it is granted. Judge McMahon finds that there is no way, short of a mini-trial on collateral matters, to know whether any other court's decision to preclude a particular expert from testifying in some other matter rested on the judge's conclusion that the expert was unqualified in the same way that the Court found the experts to be qualified, or that the opinions the expert was not allowed to give were the same types of opinions that the experts are giving in the case. Nothing in this ruling precludes vigorous cross-examination about the expert's opinions in the case. Motion No. 5: The Plaintiffs move to exclude evidence or argument concerning post-class period changes in generally accepted accounting principles -- specifically, changes announced eight months after the close of the class period, to go into effect four years later. The motion is granted, as any such evidence has little probative value and tremendous unfair prejudicial impact. Judge McMahon rejects the Defendants' argument that the change means there was no "bright line" rule in effect at the time of the alleged misstatements in the case. Motion No. 6: The Plaintiffs move to exclude character testimony concerning the three individual defendants and other Blackberry witnesses. The motion is granted in part and denied in part. With limited exceptions, the usual rule is that character testimony is inadmissible in civil cases as proof that a person acted in conformity therewith on a particular occasion. That rule will be followed. However, if the veracity of the individual defendants is attacked, they are free to offer character evidence that they enjoy a good reputation in the community for truthfulness. Judge McMahon emphasizes that it is a reputation in the community that is relevant. Appropriate limiting instructions will of course be given. Motion No. 7: The Plaintiffs move to exclude evidence or argument concerning the SEC's inquiry into Blackberry's Revenue Recognition Practices and its Failure to Pursue Charges against Blackberry. The motion is granted. Judge McMahon holds that the SEC's declination to add Blackberry's revenue recognition practices -- already the subject of class litigation -- to its busy docket does not constitute a finding that Blackberry's practices were correct or an endorsement of those practices. Motion No. 8: The Plaintiffs move to exclude the testimony of Barbara Stymiest. By notice dated March 8, 2022, they indicate that this motion was filed in error and should be withdrawn. It is deemed withdrawn. Motion No. 9: The Plaintiffs move to exclude evidence or argument regarding a prior lawsuit brought against Research in Motion in this district (the Playbook Action). The motion is granted as unopposed; as Judge McMahon suspected, the Defendants harbored no such intent. Motion No. 10: The Plaintiffs move to exclude evidence or argument concerning the dismissal of any claims, theories of liability or the dismissal of former named plaintiffs Cho and Ulug. Again, the motion is (not surprisingly) unopposed. It is granted. II. Defendants' Motions Motion No. 1: The Defendants move to preclude the admission of analyst and media reports for the truth of their contents, as these third-party statements are hearsay. The motion is not opposed; the parties simply disagree over when and how often the Court should instruct the jury that these reports are simply offered to show that particular information was (1) out in the marketplace, and (2) available and known or should have been known to the Defendants -- rather than being offered for their truth. When and how often to charge the jury on this point is the province of the Court. Motion No. 2: The Defendants move to preclude the Plaintiffs from arguing about Blackberry's corporate status in a manner that might arouse prejudice. To the unlikely extent that such a motion is necessary, Judge McMahon granted it. He will obviously not allow the Plaintiffs to suggest that Blackberry is bad because it is a corporation, or that this is an instance when the jury should defend the interests of "the little guy" against the big bad corporation. He will similarly not allow anyone to argue that class action lawyers and plaintiffs are bad because of what they do, either. Motion No. 3: The Defendants move to preclude the Plaintiffs from introducing deposition testimony from witnesses who are within the subpoena power of the court. This is, or certainly should be, an unnecessary application; the rules of evidence and of civil procedure will be enforced. Judge McMahon's experience is that live testimony works better with the trier of fact. And for the record: It has nothing to do with impeachment or refreshment of recollection. Any witness' deposition may be used to impeach (following the classic formulation, with no variation in the form of questioning allowed) or to refresh recollection (not by reading the testimony aloud, but by physically showing it to the witness and asking if it refreshes the witness' recollection). Motion No. 4: The Defendants move to preclude testimony and argument about unrelated settlements by accounting firms and/or PCAOB examinations. Judge McMahon reserved decision reserved. If the PCAOB examination revealed that E&Y was deficient in its auditing practices for a reason that is relevant to the lawsuit, then obviously it would be admitted. There may be other reasons why the PCAOB examination is admissible, even though it does not identify the clients about whose work E&Y was being criticized. Motion No. 5: The Defendants move to preclude testimony concerning Defendant Heins' post-class period employment history at a company called PowerMat, Inc. The motion is unopposed, and Judge McMahon granted it for substantially the reasons set forth in the brief in support of the motion. If for some reason this becomes an issue for impeachment, he will address it during trial. Motion No. 6: The Defendants move to preclude the testimony of certain witnesses (Gelblum and Huff) who were not disclosed prior to the discovery cutoff in January 2020. In responding to the motion, the Plaintiffs coyly make the following statement: "Lead Plaintiffs respectfully alert the court that they do not oppose the Defendants' motion in limine requesting an order excluding the testimony of witnesses Plaintiffs failed to timely disclose in light of the Court's March 9, 2021 Order instructing the parties 'that no witness whose identity was not formally disclosed prior to Jan. 31, 2020 will be allowed to testify.'" Nonetheless, both challenged witnesses are identified on the Plaintiffs' most recent witness list as testifying live. However, Judge McMahon finds that the Plaintiffs offer no rebuttal to the facts that were proffered by the Defendant in support of this motion. He thus concludes that Mr. Huff was not disclosed as a witness prior to the cutoff date, and he may not testify. Judge McMahon further finds that, while Mr. Gelblum's name appeared on the Plaintiff's original list of 228 potential witnesses, it was removed from that list when the Plaintiffs were instructed by Magistrate Judge Parker to provide the Defendants with a "more meaningful" witness list. And I find that Defendants relied on that removal by not deposing Mr. Gelblum. He may not testify, either. Motion No. 7: The Defendants move to preclude testimony from non-party Rule 30(b)(6) witnesses that is not based on personal knowledge. The specific target of this motion is Dana Moorehead of AT&T. The motion is not opposed, and the deposition testimony of Ms. Moorehead is no longer being offered. The motion is, therefore, moot. Motion No. 8: The Defendants move to preclude testimony about attorney-client privileged communications. The motion is granted. Judge McMahon holds that the Plaintiff cannot successfully seek to preclude the use of an advice of counsel defense and simultaneously question witnesses (including specifically the General Counsel of Blackberry) about privileged conversations. Motion No. 9: The Defendants move to preclude testimony about their clients' net worth. The motion is granted, except insofar as it may be deemed to cover evidence and arguments predicated on the individual defendants' compensation from and stock ownership in Blackberry, which is highly relevant to scienter. However, information about their overall net worth is excluded. Motion No. 10: The Defendants move to preclude testimony or argument about executives who left Blackberry prior to the class period. Judge McMahon denied the motion to the extent that it seeks to preclude the introduction of evidence about the success or failure of prior BlackBerry products and the fact (assuming it to be a fact) that several executives were fired for that reason. Such evidence is relevant and probative in that it provides a backdrop against which the events in suit played out. Motion No. 11: The Defendants move to preclude testimony or argument about employees who left Blackberry after the close of the class period. The motion is denied for substantially the reasons set forth in the brief filed in opposition to the motion. Motion No. 12: The Defendants seek to preclude evidence and argument regarding criminal proceedings against James Dunham Jr. Judge McMahon denied the motion is denied. He says, the only "prejudice" that might be suffered in the case from the introduction of such evidence is the perfectly allowable "prejudice" that the jury might conclude that Detwiler's efforts to "walk back the cat" on matters relating to his plea allocution (which was given under oath in circumstances attesting to its truthfulness) were a recent fabrication. Motion No. 13: The Defendants move to preclude references by the Plaintiffs to any "duty" or "obligation" to disclose "trends" regarding sell-through information and return rates, on the ground that the court dismissed with prejudice the Plaintiffs' claim that Blackberry failed to comply with SEC Item 303 of Reg. S-K, 17 C.F.R. Section 229.303. Judge McMahon agrees with the Plaintiffs that the fact that sales are trending in a particular direction may well constitute material information that a reasonable investor would expect to be disclosed, such that the failure to disclose might violate Section 10(b)-5 rather than Item 303. Nothing in this ruling precludes the mention of "trends" or "trending" at the trial. Motion No. 14: The Defendants move to preclude one of the Plaintiffs' experts, Dr. Feinstein, from opining that alleged misstatements were material to the price of Blackberry's stock. The motion is denied. Judge McMahon holds that no witness may offer an opinion about the ultimate issue of materiality to a reasonable investor; that word should not escape Dr. Feinstein's lips during his testimony. But Dr. Feinstein is perfectly free to testify to the matters comprehended in his report concerning the economic impact that withheld information would have had on the valuation of BlackBerry stock. He can most certainly testify about the proximity between the release of negative information and a consequent significant decline in the price of Blackberry's stock. Plaintiffs are then free to argue materiality; no jury needs an expert to assess that argument for them. Motion No. 15: The Defendants move to exclude the introduction of specific media articles: PX 001, 003, 004, 005, 007, 012, 549, 574, 577 and 579. The Plaintiffs inform the Court that they "are withdrawing the identified exhibits from their exhibit list." Therefore, the motion is moot. Motion No. 16: The Defendants move to exclude evidence or argument about something they call the Draft Applied Value Power Point, and that the Plaintiffs call the Applied Value Presentation. The motion is denied, for substantially the reasons articulated in the brief filed in opposition to the motion. Motion No. 17: The Defendants move to preclude the Plaintiffs' expert Thomas Lys from testifying about matters that were not comprehended in his expert report -- specifically Blackberry's "valuation of its own inventory, raw materials and supply commitments." The motion is unopposed. It is, therefore, granted. Motion No. 18: The Defendants move to preclude the Plaintiffs' expert Professor Tulin Erdem from offering factual summaries, timelines, chronologies or recitation of hearsay designed to mimic closing argument. This issue was disposed of in the court's Daubert decision, as the Plaintiffs correctly point out in their responsive brief. Judge McMahon struck the motion as unnecessary. Professor Erdem will not be allowed to summarize the Plaintiffs' case; she will be allowed to testify about the marketing history of Blackberry products and its competitors' products to the extent needed to explain her opinions. Motion No. 19: The Defendants move to preclude the Plaintiffs from arguing that the knowledge of Blackberry senior executives other than the Defendants concerning the truth or falsity of the statements at issue in the case can be attributed to Blackberry for purposes of establishing scienter as to the corporation. The motion is denied for substantially the reasons set forth in the brief filed in opposition to the motion. Judge McMahon finds that while only a "speaker" can be held liable under Section 10(b) and Rule 106-5, the Supreme Court made no ruling about corporate scienter in that case; and the Second Circuit has ruled squarely to the contrary of the Defendants' argument in Jackson v. Abernathy, 960 F.3d 94 (2d Cir. 2020). On this point, Judge McMahon is entirely persuaded by the reasoning of my late colleague, Judge Pauley, in Pa. Public School Employees Ret. Systems v. Bank of America Corp., 874 F.Supp.2d 341 (S.D.N.Y. 2012). He will follow Judge Pauley's logic in trying the case. Motion No. 20: The Defendants move to preclude the Plaintiffs from introducing evidence about statements that the court has ruled are not actionable. Judge McMahon denied the motion. He says, the fact that the Plaintiffs cannot recover for a particular false statement due to the running of the statute of repose does not mean that the making of the statement has no evidentiary value. The statements that were not timely pleaded will not appear on the verdict sheet; the jury will not formally assess their truthfulness, or the circumstances in which they were made, for purposes of assessing liability against the Defendants. That is the only thing precluded by the grant of summary judgment. Motion No. 21: The Defendants move to preclude evidence or argument seeking to impose liability on Defendants Zipperstein and Bidulka for statements that they are not alleged to have made. Judge McMahon says, it is not a proper motion in limine. He denied it. Motion No. 22: The Defendants move to preclude the introduction of deposition testimony from witnesses who are read lengthy portions of documents and who then claim to have no personal knowledge of said documents. The motion is denied. Judge McMahon will be forced to rule on hundreds of Rule 602 objections, designation by designation. However, if the Plaintiffs' characterization of the testimony of Lisa Portnoy is correct, then the Court will waste a lot of time on those objections, because Ms. Portnoy will be permitted to testify to anything and everything of which she was and was not made aware by BlackBerry. The person best situated to testify about what Ms. Portnoy of E&Y knew or did not know is Ms. Portnoy; and Rule 602 objections to such testimony would be frivolous, and treated as such. Whether E&Y was told everything it needed to know in order to issue the much vaunted "clean opinions" on BlackBerry's financials is very much at issue in the case. Motion No. 23: The Defendants move to preclude the introduction of documents about which the individual defendants have no knowledge. Judge McMahon says it is an improper motion in limine, for the reasons set forth in my memorandum to the parties dated March 9. However, he is fairly certain that most if not all of the emails to which objection is made on this ground will be admissible as against BlackBerry; and if the Defendants do not recall seeing internal corporate documents that one might expect would be called to their attention given their position in the company, that ordinarily goes to the weight of the evidence, not to its admissibility. The jury can make its own assessment of the truth of that testimony. That will be the general guiding principle at our final pre-trial conference. Motion No. 24: The Defendants move to exclude evidence or argument concerning the opinions of Geraldo Barron and Paul Holtz -- two BlackBerry employees -- on the propriety of accounting judgments made by others at BlackBerry. The motion is denied, for substantially the reasons set forth in the brief filed in opposition to the motion. To the extent BlackBerry's arguments as set forth in its brief pass the laugh test, Judge McMahon holds they go to the weight of the evidence being offered -- not to its admissibility. If BlackBerry wishes to put someone on the stand to testify to the fact that its employees were incompetent, and that they were nonetheless asked to perform work that was beyond their ken, it is free to do so. Judge McMahon would not be surprised, however, if the jury were to find that testimony less than compelling. Motion No. 25: The Defendants move to exclude evidence or argument regarding "Gerard Barron's draft memorandum." The motion, too, is denied. The memo, which discusses Blackberry's application of GAAP accounting to BB10 sales in the Q1 of FY 2014, was prepared by a BlackBerry accounting employee at the request of his supervisor; it is a BlackBerry business record, prepared after a review of data that was part of BlackBerry's business records; and it is plainly relevant to the issues to be decided in the case. Motion No. 26: The Defendants move to preclude all references to something called a draft channel policy that was never adopted (PX 452 and numerous unidentified exhibits that mention the document). The motion is denied, for substantially the reasons set forth in the Plaintiffs' brief in opposition to the motion. Motion No. 27: The Defendants seek to exclude evidence and argument regarding December 2013 emails from John Chem. Judge McMahon denied the motion for substantially the reasons set forth in the Plaintiffs' brief in opposition to the motion. Motion No. 28: The Defendants seek to exclude testimony and argument about internal discussions at Blackberry about whether to consent to AT&T's request to push out shipments of Z10 devices from the first to the third quarter of FY 2014. Judge McMahon denied the motion for substantially the reasons set forth in the Plaintiffs' brief in opposition to the motion. Motion No. 29: Finally, the Defendants seek to preclude evidence or argument about post-class period events. The motion is denied, for substantially the reasons Judge McMahon set forth in the Plaintiffs' brief filed in opposition to the motion. III. Conclusion This constitutes the written decision and order of the Court. The Clerk of Court is directed to remove the following from the Court's list of open motions: Docket Numbers 605, 607, 610, 612, 616, 619, 621, 624, 627, 630, 633, 636, 639, 642, 645, 648; 650, 653, 656, 658, 661, 663, 667, 671, 672, 675, 677, 681, 684, 686, 689, 692, 695, 698, 701, 704, 707, 710, and 715. A full-text copy of the Court's March 11, 2022 Decision is available at https://tinyurl.com/2p8ez222 from Leagle.com. BRIGHTHOUSE LIFE: CMP & Scheduling Order Entered in Martin Suit --------------------------------------------------------------- In the class action lawsuit captioned as LAWRENCE E. MARTIN, on behalf of himself and all other similarly situated, v. BRIGHTHOUSE LIFE INSURANCE COMPANY and BRIGHTHOUSE LIFE INSURANCE COMPANY OF NEW YORK, Case No. 1:21-cv-02923-RA (S.D.N.Y.), the Hon. Judge Ronnie Abrams entered a case management plan and scheduling order as follows: -- Initial requests for production April 7, 2022 of documents shall be served by: -- Initial interrogatories shall be May 6, 2022 served by: -- Depositions shall be completed by: Dec. 23, 2022 -- Requests to Admit shall be served Oct. 24, 2022 no later than: -- The parties will serve affirmative Dec. 7, 2022 expert reports on: -- The parties will serve rebuttal Feb. 1, 2023 reports on: -- All discovery shall be completed Feb. 22, 2023 no later than: -- The Plaintiff's Motion for Class March 27, 2023 Certification will be filed on or before: A copy of the Court's order dated March 7, 2022 is available from PacerMonitor.com at https://bit.ly/3JAFZL1 at no extra charge.[CC] BRISTOL-MYERS SQUIBB: Dismissal of Arkansas PERS Suit Affirmed -------------------------------------------------------------- In the case, ARKANSAS PUBLIC EMPLOYEES RETIREMENT SYSTEM, LOUISIANA SHERIFFS' PENSION & RELIEF FUND, ERSTE-SPARINVEST KAPITALANLAGEGESELLSCHAFT MBH, Plaintiffs-Appellants, JENNIFER TUNG, Individually and on behalf of all others similarly situated, METZLER ASSET MANAGEMENT GMBH, Plaintiffs v. BRISTOL-MYERS SQUIBB COMPANY, MICHAEL GIORDANO, FOUAD NAMOUNI, FRANCIS M. CUSS, GIOVANNI CAFORIO, LAMBERTO ANDREOTTI, CHARLES A. BANCROFT, Defendants-Appellees, Case No. 20-3716-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirmed the district court's dismissal of the Second Amended Complaint. I. Background Arkansas Public Employees Retirement System, Louisiana Sheriffs' Pension & Relief Fund, and Erste-Sparinvest Kapitalanlagegesellschaft mbH (the "Investors"), along with other plaintiffs that did not appeal, bring the putative class action against Bristol-Myers and individual officers of the company (collectively, "Bristol-Myers"). The Investors claim that Bristol-Myers violated the securities laws with material misrepresentations and omissions in describing a clinical trial it conducted on its drug Opdivo. The Investors claim that Bristol-Myers's stock dropped precipitously when the trial failed to achieve its goal, allegedly due to factors concealed by the representations. The securities class action arises from a failed clinical trial conducted to ascertain whether a cancer drug in development would be more effective than chemotherapy in treating a specific type of lung cancer. In 2009, Bristol-Myers acquired a pharmaceutical company developing a drug called "nivolumab," subsequently marketed as Opdivo. Opdivo is a type of immuno-oncology treatment referred to as a PD-1 checkpoint inhibitor, which treats various types of cancer by allowing the patient's immune system to fight the cancer directly. Understanding the allegations of misstatement in the case requires a rudimentary understanding of the science. Typically, the protein PD-L1 acts in healthy cells to bind with a second protein (PD-1) present on immune system T-cells to prevent them from attacking the healthy cells. This interaction is usually salutary, but when PD-L1 is present in cancer cells, the interaction can prevent the immune system from responding to the cancer cells as well. The new drug, called a PD-1 checkpoint inhibitor, is designed to prevent the PD-L1/PD-1 interaction in cancer cells, so that they can be rendered vulnerable to the body's immune system. Not all cancer cells have the PD-L1 protein. The higher the percentage of cancer cells with PD-L1, the "stronger" the patient's PD-L1 "expression," and the more effective the drug in treating that patient. One parameter in the clinical trial of a PD-1 checkpoint inhibitor is the strength of expression in the population targeted by the trial, and that involves a trade-off. A trial limited to a population with higher expression has increased odds of success; a trial that also includes patients with lower expression expands the pool of patients to whom the drug can be prescribed if it succeeds, but such success may be less likely. Defendant Bristol-Myers acquired and developed a PD-1 checkpoint inhibitor now known as Opdivo, and disclosed that it was conducting a clinical trial. The disclosure did not specify the threshold of PD-L1 expression primarily targeted by the study. The disclosure stated generally that the study would target patients "strongly expressing" PD-L1. About three years later, when Bristol-Myers publicly announced that the trial failed, it also disclosed for the first time that it primarily studied a patient population with PD-L1 expression of at least 5%. The claim in the suit is that 5% is not a "strong" expression, and that the class was thereby misled to overestimate the prospect of the trial's success. Over the ensuing months, the company and various commentators attributed the failure of the trial to the selection of a 5% PD-L1 expression threshold, as opposed to a higher level that would have narrowed the Opdivo trial to fewer patients but may have improved its chance of success. Just a few months before the announcement of the results of the Opdivo trial, one of Bristol-Myers's principal competitors, Merck & Co., announced the success of a clinical trial on its comparable drug. Merck had described the parameters of its clinical trial using similar language regarding "strong" PD-L1 expression, but eventually disclosed (prior to the study's conclusion) that in its trial, strong expression meant above 50%. Following Bristol-Myers's announcement that the trial failed, its stock price fell. On Feb. 21, 2018, several investors that owned Bristol-Myers shares in the relevant period filed the suit on behalf of a putative class in the U.S. District Court for the Southern District of New York (Vyskocil, J.). The Second Amended Complaint (the operative complaint, and hereinafter the "Complaint") alleges that the drop in stock price was attributable to the study's failure, and that Bristol-Myers had obscured the risk of such failure by declining to disclose the precise PD-L1 expression threshold and by misrepresenting that the study focused on patients "strongly" expressing PD-L1. In sum, the Complaint alleges that the misrepresentations and omissions were made with the requisite scienter and caused the price of Bristol-Myers stock to drop, that the Investors relied on the misrepresentations in purchasing or holding Bristol-Myers shares, and that they suffered losses as a result. On Sept. 30, 2020, Judge Vyskocil (to whom the case had been transferred) dismissed the Complaint with prejudice for failure to state a claim, holding that the Investors failed to allege (i) material misrepresentations or omissions or (ii) facts giving rise to a strong inference of scienter. II. Discussion The Second Circuit reviews de novo a district court's dismissal of a complaint for failure to state a claim. The Investors bring claims under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78j(b) (the "Exchange Act"), and its implementing regulation, Rule 10b-5, 17 C.F.R. Section 240.10b-5; Section 20(a) of the Exchange Act; and Section 20A of the Exchange Act. To state a claim under Section 10(b) and Rule 10b-5, a plaintiff must plead: (1) a misstatement or omission of material fact; (2) scienter; (3) a connection with the purchase or sale of securities; (4) reliance; (5) economic loss; and (6) loss causation. The Second Circuit finds that the Investors failed to adequately allege a material misstatement or omission or facts giving rise to a strong inference of scienter. As the Complaint and documents on which it relies illustrate, rates of PD-L1 expression remained a topic of research throughout the putative class period; there was no generally understood meaning of "strong" expression that contradicted Bristol-Myers's use of the term to mean 5%; and some observers correctly predicted Bristol-Myers's use of a 5% threshold before it was publicly disclosed. The Complaint also alleges no facts indicating that Bristol-Myers had an obligation to disclose the precise threshold—and Bristol-Myers cautioned the public that it would not do so. Further, the Complaint fails to allege facts giving rise to a strong inference of scienter. The Plaintiffs primarily argue that Bristol-Myers's knowledge of the industry understanding of PD-L1 expression rendered its misstatements intentional or reckless, but the Complaint fails to allege such an industry understanding. The Plaintiffs make two additional arguments. One is that scienter is evidenced by share sales by certain individual defendants, but those sales were made at a rate similar to prior periods, or pursuant to stock trading plans or for other procedural purposes, and the net effect of their transactions was to increase their total holdings. The other is that scienter is shown by Bristol-Myers's alleged reaction to the failure, including candid assessments of why it occurred and the departure of two high-level employees; but these unremarkable responses to a disappointing result do not signify anything nefarious. III. Conclusion For the foregoing reasons, the Second Circuit affirmed the district court's grant of Bristol-Myers's motion to dismiss. A full-text copy of the Court's March 11, 2022 Order is available at https://tinyurl.com/4e5dxvss from Leagle.com. SALVATORE J. GRAZIANO -- salvatore@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, in New York City (Lauren A. Ormsbee -- laurenm@blbglaw.com -- Jesse L. Jensen; Javier Bleichmar, Bleichmar Fonti & Auld LLP, in New York City; William H. Narwold, Motley Rice LLC, Hartford, Connecticut; Robert D. Klausner, Klausner, Kaufman, Jensen & Levinson, PA, in Plantation, Florida, on the brief), for the Plaintiffs-Appellants. YOSEF J. RIEMER -- yosef.riemer@kirkland.com -- Kirkland & Ellis LLP, in New York City (Matthew Solum, Daniel R. Cellucci on the brief), for the Defendants-Appellees. BROADWAY SAN FRANCISCO: Faces Devireddy Suit Over Unsolicited Calls ------------------------------------------------------------------- MONESH DEVIREDDY, individually and on behalf of all others similarly situated, Plaintiff v. BROADWAY SAN FRANCISCO, LLC, Defendant, Case No. CACE-22-004168 (Fla. Cir., Broward Cty., Mar. 21, 2022) seeks to stop the Defendants' practice of making unsolicited calls. BROADWAY SAN FRANCISCO, LLC is a commercial theatrical production company in San Francisco. It was founded in 1977 by Broadway producers Carole Shorenstein Hays and Robert Nederlander as Shorenstein Hays Nederlander Theatres as a promoter of short engagements of national touring productions of plays and musicals. [BN] The Plaintiff is represented by: Jeremy Dover, Esq. DEMESMIN & DOVER, PLLC 1650 SE 17th Street, Suite 100 Fort Lauderdale, FL 33316 Telephone: (866) 954-6673 Facsimile: (954) 916-8499 E-mail: Spam-Pleadings@attorneysoftheinjured.com Jdover@attorneysoftheinjured.com BRODOFICATION LLC: CMP, Scheduling Order Entered in Tavarez Suit ---------------------------------------------------------------- In the class action lawsuit captioned as VICTORIANO TAVAREZ, Individually, and On Behalf of All Others Similarly Situated, v. BRODOFICATION LLC, Case No. 1:21-cv-09796-LJL (S.D.N.Y.), the Court entered a case management plan and scheduling order as follows: -- Any motion to amend or to join April 5, 2022 additional parties shall be filed no later than: -- All fact discovery is to be July 6, 2022 completed no later than: -- Depositions shall be completed by: June 29, 2022 -- Requests to Admit shall be served May 20, 2022 no later than: -- All discovery shall be completed Aug. 29, 2022 no later than: A copy of the Court's order dated March 7, 2022 is available from PacerMonitor.com at https://bit.ly/3D8Gmu0 at no extra charge.[CC] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. MIZRAHI LAW Telephone: (917) 299-6612 E-mail JOSEPH@JMIZRAHILAW.COM The Defendant is represented by: Alexander Wilde Leonard, Esq GOLENBOCK EISEMAN ASSOR BELL & PESKOE 711 3rd Ave. New York, NY 10017-4014 Telephone: (212) 907-7378 CALIFORNIA: Appeals Preliminary Injunction Ruling in E.E. Suit -------------------------------------------------------------- State of California, et al., filed an appeal from a court ruling entered in the lawsuit entitled E. E. by and through her guardian ad litem A.J., L. N. by and through his guardian ad litem K.N., on behalf of themselves and a class of those similarly situated, Disability Rights Education & Defense Fund v. State of California, California State Board of Education, California Department of Education, Case No. 3:21-cv-07585-AGT, in the U.S. District Court for Northern California, San Francisco. On September 28, 2021, the Plaintiffs filed this class action lawsuit against the State of California, the California State Board of Education, and the California Department of Education. Plaintiffs are students with disabilities and an organization that advocates for disabled students and their families, and they bring suit on behalf of "All California students who, now or in the future, have an Individual Education Plan and whose parent, guardian or education rights holder has determined that in-person instruction would put the student at risk." The complaint challenges a state law - Assembly Bill 130 - that was passed in July 2021 and that provides that Independent Study is the primary avenue for distance learning during the 2021-2022 school year. The Plaintiffs claim that AB 130 has limited distance learning to a single format that is inaccessible to students with disabilities, and that many students with disabilities require distance learning during the 2021-2022 school year because their parents have determined that their health would be put at risk by in-person instruction. Plaintiffs claim that as a result of AB 130, they are being denied the accommodation of virtual access to school, resulting in numerous students who have missed significant portions of the 2021-2022 school year because they cannot safely attend school in person. The Plaintiffs allege that during the 2020-2021 school year, students with Individual Education Plans had "distance learning plans" that reflected how the services in their IEPs would be provided during the COVID-19 pandemic. At the beginning of the COVID-19 pandemic in 2020, California enacted new statutes to ensure that school districts offered students access to distance learning. On November 22, 2021, the Defendants filed a motion for preliminary injunction which the Court granted on February 28, 2022. The Defendants seek a review of this ruling. The appellate case is captioned as E. E., et al. v. State of California, et al., Case No. 22-15374, in the United States Court of Appeals for the Ninth Circuit, filed on March 11, 2022.[BN] Defendants-Appellants STATE OF CALIFORNIA, CALIFORNIA STATE BOARD OF EDUCATION, and CALIFORNIA DEPARTMENT OF EDUCATION are represented by: Jennifer Ann Bunshoft, Esq. AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL 455 Golden Gate Avenue San Francisco, CA 94102 Telephone: (415) 703-5085 E-mail: jennifer.bunshoft@doj.ca.gov - and - Elizabeth Lake, Esq. CALIFORNIA DEPARTMENT OF JUSTICE 600 W Broadway, Suite 1800 San Diego, CA 92101 Telephone: (619) 738-9305 - and - Kevin Lee Quade, Esq. AGCA-OFFICE OF THE CALIFORNIA ATTORNEY GENERAL 1300 I Street, Suite 125 Sacramento, CA 95814 Telephone: (916) 210-7693 E-mail: kevin.quade@doj.ca.gov Plaintiffs-Appellees E. E., by and through her guardian ad litem A.J; L. N., by and through his guardian ad litem K.N., on behalf of themselves and a class of those similarly situated; DISABILITY RIGHTS EDUCATION & DEFENSE FUND; H. H., by and through her guardian ad litem M.H.; K. H., by and through her guardian ad litem C.H.; and THE ARC OF CALIFORNIA, are represented by: Melinda R. Bird, Esq. DISABILITY RIGHTS CALIFORNIA 350 S Bixel Street, Suite 290 Los Angeles, CA 90017 Telephone: (213) 213-8000 E-mail: melinda.bird@disabilityrightsca.org - and - Robert John Borrelle, Jr., Esq. DISABILITY RIGHTS EDUCATION AND DEFENSE FUND 3075 Adeline Street, Suite 210 Berkeley, CA 94703 Telephone: (510) 644-2555 E-mail: robert.borrelle@disabilityrightsca.org - and - Lauren Lystrup, Esq. DISABILITY RIGHTS CALIFORNIA 1330 Broadway, Suite 500 Oakland, CA 94612 Telephone: (510) 267-1224 E-mail: lauren.lystrup@disabilityrightsca.org CANO HEALTH: Gonzalez Sues Over 6.17% Drop of Common Stock Price ---------------------------------------------------------------- ALBERTO GONZALEZ, on behalf of himself and all others similarly situated, Plaintiff v. CANO HEALTH, INC. f/k/a JAWS ACQUISITION CORP., MARLOW HERNANDEZ, BRIAN D. KOPPY, JOSEPH L. DOWLING, and MICHAEL RACICH, Defendants, Case No. 1:22-cv-20827 (S.D. Fla., March 18, 2022) is a class action against the Defendants for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. According to the complaint, the Defendants made materially false and misleading statements regarding Cano Health's business, operations, and compliance policies in order to trade Cano securities at artificially inflated prices between May 18, 2020 and February 25, 2022. Specifically, the Defendants made false and/or misleading statements and/or failed to disclose that: (i) Cano overstated its due diligence efforts and expertise with respect to acquiring target businesses; (ii) accordingly, Cano performed inadequate due diligence into whether the company, post-business combination, could properly account for the timing of revenue recognition as prescribed by Accounting Standards Update No. 2014-09, Revenue from Contracts with Customers (Topic 606), particularly with respect to Medicare risk adjustments; (iii) as a result, the company misstated its capitated revenue, direct patient expense, accounts receivable, net of unpaid service provider costs, and accounts payable and accrued expenses; (iv) accordingly, the company was at an increased risk of failing to timely file one or more of its periodic financial reports; and (v) as a result, the company's public statements were materially false and misleading at all relevant times. When the truth emerged, Cano's Class A common stock price fell $0.32 per share, or 6.17 percent, to close at $4.87 per share on February 28, 2022, damaging investors, says the suit. Cano Health, Inc., formerly known as Jaws Acquisition Corp Cano Health, Inc., is a health care services provider, headquartered in Miami, Florida. [BN] The Plaintiff is represented by: Jayne A. Goldstein, Esq. MILLER SHAH LLP 1625 N. Commerce Pkwy., Suite 320 Fort Lauderdale, FL 33326 Telephone: (954) 903-3170 Facsimile: (866) 300-7367 E-mail: jagoldstein@millershah.com - and – Jennifer Pafiti, Esq. POMERANTZ LLP 1100 Glendon Avenue, 15th Floor Los Angeles, CA 90024 Telephone: (310) 405-7190 Facsimile: (212) 661-8665 E-mail: jpafiti@pomlaw.com CARMAX AUTO: Reid Appeals Vehicle Emission Case Dismissal --------------------------------------------------------- Plaintiff Alexandra Reid filed an appeal from a court ruling entered in the lawsuit styled ALEXANDRA REID, individually, and on behalf of other members of the general public similarly situated, Plaintiff v. CARMAX AUTO SUPERSTORES, INC.; CARMAX AUTO SUPERSTORES WEST COAST, INC.; DOES 1-100, inclusive, Defendants, Case No. 2:21-cv-04815, in the United States District Court for the Central District of California. The lawsuit was filed by the Plaintiff on June 14, 2021, seeking damages, injunctive relief, and any other available legal or equitable remedies, for violations of the California Unfair Competition Law, common law fraud, and unjust enrichment, as a result of alleged illegal actions of Carmax, in fraudulently and unlawfully selling vehicles that do not meet California Emissions standards, including fraudulently completing the title certificate, to unlicensed dealers for retail sale. On October 29, 2021, the Defendants filed a motion to dismiss Plaintiff's amended class action complaint which the Court granted on February 11, 2022, through an Order signed by Judge Mark C. Scarsi. The Plaintiff seeks a review of this order. The appellate case is captioned as Alexandra Reid v. CarMax Auto Superstores, Inc., et al., Case No. 22-55261, in the United States Court of Appeals for the Ninth Circuit, filed on March 14, 2022. The briefing schedule in the Appellate Case states that: -- Appellant Alexandra Reid Mediation Questionnaire was due on March 21, 2022; -- Appellant Alexandra Reid opening brief is due on May 9, 2022; -- Appellees Carmax Auto Superstores West Coast, Inc. and Carmax Auto Superstores, Inc. answering brief is due on June 8, 2022; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants ALEXANDRA REID, individually, and on behalf of other members of the general public similarly situated, is represented by: Adrian Bacon, Esq. Todd M. Friedman, Esq. LAW OFFICES OF TODD FRIEDMAN, PC 21031 Ventura Boulevard, Suite 340 Woodland Hills, CA 91364 Telephone: (877) 206-4741 E-mail: tfriedman@toddflaw.com Defendants-Appellees CARMAX AUTO SUPERSTORES, INC. and CARMAX AUTO SUPERSTORES WEST COAST, INC. are represented by: Jack Frank Altura, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 350 S. Grand Avenue, Suite 3400 Los Angeles, CA 90071 Telephone: (213) 928-9823 E-mail: jack.altura@troutman.com - and - Chad R. Fuller, Esq. TROUTMAN PEPPER HAMILTON SANDERS, LLP 11682 El Camino Real, Suite 400 San Diego, CA 92130 Telephone: (858) 509-6000 E-mail: chad.fuller@troutman.com - and - Alan Durrum Wingfield, Esq. TROUTMAN PEPPER HAMILTON SANDERS, LLP 1001 Haxall Point Richmond, VA 23219 Telephone: (804) 697-1350 E-mail: alan.wingfield@troutman.com CDM FEDERAL: Faces Hibben Suit Over Failure to Pay Proper Wages --------------------------------------------------------------- GALEN GLEN HIBBEN, individually and on behalf of all others similarly situated, Plaintiff V. CDM FEDERAL PROGRAMS CORPORATION, Defendant, Case No. 1:22-cv-10395 (D. Mass., March 14, 2022) seeks to recover regular and overtime wages under the Fair Labor Standards Act and the Massachusetts Wage Act. The Plaintiff worked for the Defendant as a grants manager instructor. He asserts that the Defendant did not pay him one-and-one-half times his regular rate of pay for each overtime hour he worked during the Claims Period. CDM Federal Programs Corporation is part of an organization that secured contracts with the Federal Emergency Management Agency. The company provides various disaster and emergency relief construction, cleanup and related services throughout the country and offshore U.S. territories.[BN] The Plaintiff is represented by: Philip J. Gordon, Esq. Kristen M. Hurley, Esq. GORDON LAW GROUP, LLP 585 Boylston St. Boston, MA 02116 Telephone: (617) 536-1800 Facsimile: (617) 536-1802 E-mail: pgordon@gordonllp.com khurley@gordonllp.com - and - Ricardo J. Prieto, Esq. Melinda Arbuckle, Esq. SHELLIST LAZARZ SLOBIN LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Telephone: (713) 621-2277 Facsimile: (713) 621-0993 E-mail: rprieto@eeoc.net marbuckle@eeoc.net CELSIUS HOLDINGS: Faces McCallion Suit Over Stock Price Drop ------------------------------------------------------------ CHRISTIAN F. MCCALLION, individually and on behalf of all others similarly situated v. CELSIUS HOLDINGS, INC., JOHN FIELDLY, and EDWIN NEGRON, Case No. 9:22-cv-80418-DMM (S.D. Fla., March 16, 2022) is a class action on behalf of persons and entities that purchased or otherwise acquired Celsius securities between August 12, 2021 and March 1, 2022, inclusive pursuing claims against the Defendants under the Securities Exchange Act of 1934. Celsius develops, markets, and sells functional drinks and liquid supplements. Its core offerings include pre- and post-workout functional energy drinks and protein bars. On March 1, 2022, after the market closed, Celsius disclosed that it could not timely file its 2021 annual report due to "staffing limitations, unanticipated delays and identified material errors in previous filings." Specifically, Celsius "determined that the calculation and expense of non-cash share-based compensation, related to grants of stock options and restricted stock units awarded to certain former employees and retired directors were materially understated for the three and six month periods ended June 30, 2021 and three and nine month periods ended September 30, 2021." As a result, management concluded that there was a material weakness in the Company's internal controls over financial reporting. On this news, the Company's stock price fell to an intra-day low of $56.21 per share on unusually heavy trading volume on March 2, 2022. Over the course of the March 2, 2022 and March 3, 2022 trading sessions, the Company's stock price fell a total of $5.20, or 8.3% on unusually heavy trading volume to close at $57.60 per share on March 3, 2022. Throughout the Class Period, the Defendants allegedly 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, the Defendants failed to disclose to investors that the Company had improperly recorded expenses for non-cash share-based compensation for second and third quarters of 2021. As a result of Defendants' alleged wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages. Plaintiff McCallion purchased Celsius securities during the Class Period, and suffered damages as a result of the alleged federal securities law violations and false and/or misleading statements and/or material omissions. Celsius develops, markets, and sells functional drinks and liquid supplements. Its core offerings include pre- and post-workout functional energy drinks and protein bars. The Individual Defendants are officers of the company.[BN] The Plaintiff is represented by: Leo W. Desmond, Esq. DESMOND LAW FIRM, P.C. 5070 Highway A1A, Suite D Vero Beach, FL 32963 Telephone: (772) 231-9600 E-mail: lwd@desmondlawfirm.com - and - Robert V. Prongay, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 CENTRAL MANAGEMENT: Transmits Unwanted Robocalls, Coleman Alleges ----------------------------------------------------------------- KAYLEIGH COLEMAN, individually and on behalf of all others similarly situated, Plaintiff v. CENTRAL MANAGEMENT SOLUTIONS, LLC, Defendant, Case No. 22-001302-CI (Fla. Cir. Ct., 6th Jud. Cir., Pinellas Cty., March 18, 2022) is a class action against the Defendant for its violation of the Fair Debt Collection Practices Act, the Florida Consumer Collections Practices Act, and the Telephone Consumer Protection Act. The case arises from the Defendant's alleged practice of utilizing an artificial or prerecorded voice to transmit voicemail on the cellular telephone numbers of consumers, including the Plaintiff, as part of its debt collection efforts. The Plaintiff and Class members did not provide the Defendant prior express consent to place calls to their cellular telephones. The Defendant's unwanted phone calls caused harm to the Plaintiff and Class members including anxiety, nuisance, and emotional stress. Central Management Solutions, LLC is a debt collection firm, with its principal place of business in Conyers, Georgia. [BN] The Plaintiff is represented by: Jason Tenenbaum, Esq. TENENBAUM LAW GROUP, PLLC 1600 Ponce De Leon Blvd., 10th Floor Coral Gables, FL 33134 Telephone: (305) 402-9529 Facsimile: (786) 292-1948 CHARLOTTE MECKLENBURG, NC: Beyan Suit Dismissed Without Prejudice ----------------------------------------------------------------- The U.S. District Court for the Western District of North Carolina, Charlotte Division, dismissed without prejudice the lawsuit entitled JAMES L. BEYAN, JR., Plaintiff v. CHARLOTTE MECKLENBURG POLICE DEPARTMENT, Defendant, Case No. 3:22-cv-12-RJC-DSC (W.D.N.C.). The pro se Plaintiff purported to file this case as a class action lawsuit pursuant to the Court's federal question and diversity jurisdiction. On Jan. 31, 2022, the Court granted the Plaintiff's Application to proceed in forma pauperis and dismissed the Complaint on initial review as frivolous and for failure to state a claim upon which relief can be granted. The Court granted the Plaintiff 14 days within which to amend his Complaint to correct the deficiencies identified by the Court. The Plaintiff was cautioned that the failure to timely comply with the Order would result in this case's dismissal without further notice. District Judge Robert J. Conrad, Jr., opines that the Plaintiff failed to timely comply with the Court's January 31 Order and the time to do so has expired. Therefore, this action will be dismissed without prejudice. It is, therefore, ordered that the action is dismissed without prejudice for the Plaintiff's failure to comply with the Court's Jan. 31, 2022 Order. The Clerk of the Court is directed to close the case. A full-text copy of the Court's Order dated March 7, 2022, is available at https://tinyurl.com/49t88wvp from Leagle.com. CIBC BANK: Web Site Not Accessible to Blind, Williams Suit Says --------------------------------------------------------------- MILTON WILLIAMS, individually and on behalf of all other similarly situated, Plaintiffs v. CIBC BANK USA, INC., Defendant, Case No. 1:22-cv-02338 (S.D.N.Y., Mar. 22, 2022) alleges violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendant's Web site, https://us.cibc.com/en/home.html, is not fully or equally accessible to blind and visually-impaired consumers, including the Plaintiff, in violation of the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Web site will become and remain accessible to blind and visually-impaired consumers. CIBC Bank USA provides banking services. The Bank offers personal banking, wealth management, loans, mortgages, cards, savings accounts, leasing, retirement plans, investment management, financial advisory, online banking, and insurance services. CIBC Bank operates in United States. BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 Email: Michael@Gottlieb.legal Jeffrey@Gottlieb.legal Dana@Gottlieb.legal CITIBANK NA: Perez Employment Suit Removed to E.D. California ------------------------------------------------------------- The case styled VERONICA PEREZ, individually and on behalf of all others similarly situated v. CITIBANK, N.A. and DOES 1 to 50, Case No. 22CV-00362, was removed from the Superior Court of the State of California for the County of Merced to the U.S. District Court for the Eastern District of California on March 18, 2022. The Clerk of Court for the Eastern District of California assigned Case No. 1:22-at-00176 to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California's Business and Professions Code including failure to pay all minimum wages, failure to pay split shift premiums, failure to pay all overtime wages, failure to provide rest periods and pay missed rest period premiums, failure to provide meal periods and pay missed meal period premiums, failure to maintain accurate employment records, failure to pay wages timely during employment, failure to pay all wages earned and unpaid at separation, failure to indemnify all necessary business expenditures, failure to furnish accurate itemized wage statements, and unfair business practices. Citibank, N.A. is a financial services company based in New York, New York. [BN] The Defendant is represented by: Daryl S. Landy, Esq. Joseph A. Govea, Esq. MORGAN, LEWIS & BOCKIUS LLP 600 Anton Boulevard, Suite 1800 Costa Mesa, CA 92626-7153 Telephone: (714) 830-0600 Facsimile: (714) 830-0700 E-mail: daryl.landy@morganlewis.com joseph.govea@morganlewis.com COCA-COLA CONSOLIDATED: Jones Wins Prelim. OK of $3.5MM Class Deal ------------------------------------------------------------------ In the lawsuit captioned as CHEYENNE JONES, et al., Plaintiffs v. COCA-COLA CONSOLIDATED, INC., et al., Defendants, Case No. 3:20-CV-00654-FDW-DSC (W.D.N.C.), Judge Frank D. Whitney of the U.S. District Court for the Western District of North Carolina, Charlotte Division: -- grants the Plaintiff's Motion for Preliminary Approval of Class Action Settlement; and -- denies as moot the Plaintiff's Motion to Certify Class. The Agreement is preliminarily approved as fair, reasonable, and adequate. Judge Whitney finds that the amount of the Settlement -- $3.5 million -- is fair, reasonable, and adequate, taking into account the costs, risks, and delay of litigation, trial, and appeal. The proposed Plan of Allocation is also fair, reasonable, and adequate. The Class Action involves claims for alleged violations of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. Section 1001, et seq. ("ERISA"), with respect to the Coca-Cola Consolidated, Inc. 401(k) Plan (the "Plan"). The terms of the Settlement are set out in that certain Settlement Agreement and Release, fully executed as of Feb. 22, 2022, by counsel on behalf of the Class Representatives, all Class Members, and the Defendants, respectively. Pursuant to Plaintiffs' Motion for Preliminary Approval of Class Action Settlement, Preliminary Certification of a Class for Settlement Purposes, Approving Form and Manner of Settlement Notice, Preliminarily Approving Plan of Allocation, and Scheduling a Date for a Fairness Hearing, filed on Feb. 22, 2022, the Court preliminarily considered the Settlement to determine, among other things, whether the Settlement is sufficient to warrant the issuance of notice to members of the proposed Settlement Class. In accordance with the Settlement Agreement, and pursuant to Rules 23(a) and (b)(1) of the Federal Rules of Civil Procedure, the Court conditionally certifies this class ("Settlement Class"): All participants and beneficiaries of the Plan, at any time during the Class Period, including any beneficiary of a deceased person who was a participant in the Plan at any time during the Class Period, and any Alternate Payees, in the case of a person subject to a QDRO who was a participant in the Plan at any time during the Class Period. The Class shall exclude all Defendants. Pursuant to the Agreement, and for settlement purposes only, the Court preliminarily finds that, among other things, as required by Rule 23(a)(1) of the Federal Rules of Civil Procedure, the Settlement Class is ascertainable from records kept with respect to the Plan and from other objective criteria, and the Settlement Class is so numerous that joinder of all members is impracticable. The Court preliminarily appoints Cheyenne Jones and Sara J. Gast as Class Representatives for the Settlement Class and Miller Shah LLP and Capozzi Adler, P.C., as Class Counsel for the Settlement Class. A hearing is scheduled for Aug. 2, 2022, at 9:00 a.m., to make a final determination concerning, among other things: any objections from Class Members to the Settlement or any aspects of it; whether the Settlement merits final approval as fair, reasonable, and adequate; whether the Class Action should be dismissed with prejudice pursuant to the terms of the Settlement; whether Class Counsel adequately represented the Settlement Class for purposes of entering into and implementing the Settlement; whether the proposed Plan of Allocation should be granted final approval; and whether Class Counsel's application(s) for Attorneys' Fees and Expenses and Case Contribution Awards to the Class Representatives are fair and reasonable, and should be approved. The Court approves the form of Settlement Notice attached as Exhibit B to the Settlement Agreement and Former Participant Claim Form attached as Exhibit E to the Settlement Agreement. The Court approves the appointment of Strategic Claims Services as the Settlement Administrator for the Settlement. The Court directs that the Settlement Administrator will by no later than April 7, 2022, cause the Settlement Notice and Former Participant Claim Form, with such non-substantive modifications thereto as may be agreed upon by the Parties, to be provided by first-class mail, postage prepaid, to the last known address of each member of the Settlement Class who can be identified through reasonable effort. The Court finds that the contents of the Settlement Notice and the process described herein and in the Settlement are the best notice practicable under the circumstances, and satisfy the requirements of Rule 23(c) and Due Process. Any petition by Class Counsel for attorneys' fees, litigation costs and Case Contribution Awards to the Class Representatives, and all briefs in support thereof, will be filed no later than June 17, 2022. Briefs in Support of Final Approval of the Settlement -- Briefs and other documents in support of final approval of the Settlement will be filed no later than June 17, 2022. Any member of the Settlement Class or authorized recipient of any CAFA Notice may file an objection to the fairness, reasonableness, or adequacy of the Settlement, to any term of the Settlement Agreement, to the Plan of Allocation, to the proposed award of attorneys' fees and litigation costs, to the payment of costs of administering the Settlement out of the Qualified Settlement Fund, or to the request for a Case Contribution Award for the Class Representatives. The objector or his, her, their or its counsel (if any) must file or postmark the objection(s) and supporting materials with the Court and provide a copy of the objection(s) and supporting materials to Class Counsel and Defense Counsel at the addresses in the Settlement Notice no later than July 1, 2022. If an objector hires an attorney to represent him, her, them or it for the purposes of making an objection pursuant to this Paragraph, the attorney must also file a notice of appearance with the Court no later than July 18, 2022. Any member of the Settlement Class or other person who does not timely file a written objection complying with the terms of this Paragraph will be deemed to have waived, and will be foreclosed from raising, any objection to the Settlement, and any untimely objection will be barred. Any responses to objections will be filed with the Court no later than July 26, 2022. Absent prior Court approval, there will be no reply briefs. Any additional briefs the Settling Parties may wish to file in support of the Settlement will be filed no later than July 26, 2022. Pending final determination of whether the Settlement Agreement should be approved, the Class Representatives, every Class Member, and the Plan are prohibited and enjoined from directly, through representatives, or in any other capacity, commencing any action or proceeding in any court or tribunal asserting any of the Released Claims against the Defendant Released Parties. The Defendants will cause notice to be disseminated consistent with the Class Action Fairness Act of 2005 ("CAFA"), which, upon mailing, will discharge the Defendants' obligations pursuant to CAFA. The Court reserves the right to continue the Fairness Hearing without further written notice to the Class Members and also may schedule the hearing to be done by telephone or video conference. Order Judge Whitney ruled that the Plaintiff's Motion for Preliminary Approval of Class Action Settlement is granted. Accordingly, the Plaintiff's Motion to Certify Class is denied as moot. The Parties will take notice that the Fairness Hearing in this matter will take place on Tuesday, Aug. 2, 2022, at 9:00 a.m., in Courtroom #5B of the Charles R. Jonas Federal Building, 401 W. Trade Street, in Charlotte, North Carolina. A full-text copy of the Court's Order dated March 7, 2022, is available at https://tinyurl.com/ytzfz4hh from Leagle.com. COGNIZANT TECHNOLOGY: Faces Shareholder Suit in NJ Court -------------------------------------------------------- Cognizant Technology Solutions Corporation disclosed in its Form 10-K Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 16, 2022, that it is facing a putative shareholder derivative complaint filed in the US District Court of New Jersey in March 11, 2019 naming the company and certain of its current and former directors and officers at that time as defendants. On May 14, 2019, said court approved a stipulation that (i) consolidated this action with the putative shareholder derivative suits that were previously filed and (ii) stayed all of these suits pending an order on the motion to dismiss the second amended complaint in the consolidated putative securities class action. On August 3, 2020, lead plaintiffs filed an amended complaint. The court extended the stay through February 14, 2022 where the company moved to dismiss the amended complaint. Cognizant is a professional services companies, engineering modern business for the digital era with services including digital services and solutions, consulting, application development, systems integration, application testing, application maintenance, infrastructure services and business process services. COGNIZANT TECHNOLOGY: Settlement in Three Class Suits Gets Final OK ------------------------------------------------------------------- Cognizant Technology Solutions Corporation disclosed in its Form 10-K Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 16, 2022, that on December 21, 2021, the US District Court of New Jersey granted final approval of a settlement agreement with regards to three putative securities class action complaints and entered a judgment dismissing the consolidated putative securities class action with prejudice. On October 5, 2016, October 27, 2016 and November 18, 2016, three putative securities class action complaints were filed in said court naming Cognizant and certain of its current and former officers at that time as defendants. These complaints were consolidated into a single action and on April 7, 2017, the lead plaintiffs filed a consolidated amended complaint on behalf of a putative class of persons and entities who purchased our common stock during the period between February 27, 2015 and September 29, 2016, naming Cognizant and certain of its current and former officers at that time as defendants and alleging violations of the Exchange Act, based on allegedly false or misleading statements related to potential violations of the Foreign Corrupt Practices Act, our business, prospects and operations, and the effectiveness of our internal controls over financial reporting and our disclosure controls and procedures. The lead plaintiffs sought an award of compensatory damages, among other relief, and their reasonable costs and expenses, including attorneys' fees. Defendants filed motions to dismiss the consolidated amended complaint on June 6, 2017. On August 8, 2018, the court issued an order which granted the motions to dismiss in part, including dismissal of all claims against then-current officers of the Company, and denied them in part. On September 7, 2018, the company filed a motion to certify the August 8, 2018 order for immediate appeal to the United States Court of Appeals for the Third Circuit pursuant to 28 U.S.C. § 1292(b). On October 18, 2018, the court issued an order granting our motion, and staying the action pending the outcome of our appeal petition to the Third Circuit. On October 29, 2018, the company filed a petition for permission to appeal with the Third Circuit. On March 6, 2019, the Third Circuit denied its petition without prejudice. In an order dated March 19, 2019, the USDC-NJ directed the lead plaintiffs to provide the defendants with a proposed amended complaint. On April 26, 2019, lead plaintiffs filed their second amended complaint. Cognizant filed a motion to dismiss the second amended complaint on June 10, 2019. On June 7, 2020, the court issued an order denying the company's motion to Cognizant to dismiss the second amended complaint. On July 10, 2020, the company filed its answer to the second amended complaint. On July 23, 2020, the DOJ filed a motion on consent for leave to intervene and to stay all discovery through the conclusion of the criminal proceedings in United States v. Gordon J. Coburn and Steven Schwartz, Crim. No. 19-120 (KM), except for documents produced by us to the DOJ in connection with those criminal proceedings. On July 24, 2020, the court granted the DOJ's motion and on that same day, it1 filed a motion in the USDC-NJ to certify the June 7, 2020 order for immediate appeal to the Third Circuit pursuant to 28 U.S.C. § 1292(b). On March 17, 2021, the USDC-NJ issued an order denying the motion. On September 7, 2021, the parties filed a settlement agreement that resolved the consolidated putative securities class action providing for a payment of $95 million to the putative class (inclusive of attorneys' fees and litigation expenses). On December 21, 2021, the court granted final approval of the settlement and entered a judgment dismissing the consolidated putative securities class action with prejudice. The deadline to appeal the judgement was in January 20, 2022, and no appeals were filed before that date. Cognizant is a professional services companies, engineering modern business for the digital era with services including digital services and solutions, consulting, application development, systems integration, application testing, application maintenance, infrastructure services and business process services. COLGATE DELI: Vera Sues Over Unpaid Minimum and Overtime Wages -------------------------------------------------------------- Marcos Vera, Plaintiff v. Colgate Deli & Grocery Corp. d/b/a Colgate Deli & Grocery Corp., and Mohamed "Doe," Defendants, Case No. 1:22-cv-02058-ER (S.D.N.Y., March 12, 2022) is a class action brought by the Plaintiff, on behalf of all other persons similarly situated, seeking to recover from the Defendants compensation for wages paid at less than the statutory minimum wage, unpaid wages for overtime work, unpaid spread of hours compensation, and liquidated damages pursuant to the Fair Labor Standards Act and the New York Labor Law. Plaintiff Vera has been employed at Colgate Deli & Grocery since approximately November 1, 2017 until present. At various times during the period of his employment by the Defendants, Mr. Vera has been employed as a cleaner, stocker, food preparer, ordering supplies, and cashier. Colgate Deli & Grocery is a deli and grocery shop located in Bronx, New York.[BN] The Plaintiff is represented by: Michael Samuel, Esq. THE SAMUEL LAW FIRM 1441 Broadway Suite 6085 New York, NY 10018 Telephone: (212) 563-9884 E-mail: michael@thesamuellawfirm.com COMMERCIAL CONDOMINIUM: Matthews Suit Seeks OT Pay Under FLSA, VOWA ------------------------------------------------------------------- ASHLEY MATTHEWS and VERONICA MEDRANO, individually and on behalf of all others similarly situated v. COMMERCIAL CONDOMINIUM MANAGEMENT COMPANY, Case No. 1:22-cv-00297 (E.D. Va., March 18, 2022) is a claim for unpaid overtime compensation in violation of the Fair Labor Standards Act of 1938 and the Virginia Overtime Wage Act arising out work that the Plaintiffs, and others similarly situated, performed as employees of Defendant. The Plaintiffs assert individual claims for unpaid regular wages and unauthorized withholdings from wages in violation of the Virginia Wage Payment Act. The Plaintiffs allege Defendant violated and continues to violate the FLSA and VOWA through its practice of not paying overtime compensation to Plaintiffs and other similarly situated employees when they work more than 40 hours in a week. The FLSA Collective is made up of all persons who have been employed by Defendant as an Assistant Property Manager, Receptionist, Accounts Payable/Receivable Assistant, Office Manager, or in a comparable position, within three years prior to this action's filing to the trial of this action. Plaintiff Matthews is a resident of Virginia who was employed by Defendant in a position called "Assistant Property Manager." Plaintiff Matthews worked for Defendant from November 18, 2019 through January 27, 2022. Plaintiff Medrano is a resident of Virginia who was employed by Defendant in a position called "Receptionist" and later as an "Accounts Payable/Receivable Assistant," also interchangeably referred to as an "Office Manager" from October 13, 2016 through January 28, 2022. CCMC is a commercial real estate property management company. CCMC manages over 100 commercial, office, and condominium associations in the metropolitan Washington D.C. area.[BN] The Plaintiffs are represented by: Timothy Coffield, Esq. COFFIELD PLC 106-F Melbourne Park Circle Charlottesville, VA 22901 Telephone: (434) 218-3133 Facsimile: (434) 321-1636 E-mail: tc@coﬃeldlaw.com CONNECTICUT GENERAL: Filing for Class Cert Bid Extended to May 6 ---------------------------------------------------------------- In the class action lawsuit captioned as Issokson v. Connecticut General Corporation, et al., Case No. 3:18-cv-30070 (D. Mass.), the Hon. Judge Mark G. Mastroianni entered an order on motion for extension of time as follows: -- Motion for class certification May 6, 2022 (if any) shall be filed by: Oppositions shall be filed by: May 27, 2022 -- Hearing on the motion for class Oct. 14, 2022; certification will be scheduled if the court deems it helpful to disposition of the motion; fact discovery other than requests for admission shall be completed by: -- The Plaintiff shall designate and Nov. 11, 2022 disclose expert witnesses by: -- The Defendants shall designate and Dec. 9, 2022 disclose expert witnesses by: -- Expert depositions shall be Jan. 6, 2023 completed by: -- Dispositive motions (if any) Feb. 3, 2023 shall be filed by: Oppositions shall be filed by: March 6, 2023 Hearing dispositive motions will April 21, 2023 be held on: The nature of suit states Insurance Diversity-Breach of Contract. Connecticut General Corporation, doing business as, Cigna, provides insurance services.[CC] CORECIVIC INC: Class Certification Filing Extended to June 17 ------------------------------------------------------------- In the class action lawsuit captioned as WILHEN HILL BARRIENTOS, et al., v. CORECIVIC, INC., Case No. 4:18-cv-00070-CDL (M.D. Ga.), the Hon. Judge Clay D. Land entered an order granting the Parties' joint motion to extend class certification and dispositive motions deadline from April 4, 2022 to June 17, 2022 CoreCivic, formerly the Corrections Corporation of America, is a company that owns and manages private prisons and detention centers and operates others on a concession basis. A copy of the Court's order dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/3qcjW5U at no extra charge.[CC] COWEN INC: Web Site Not Accessible to Blind, William Suit Says -------------------------------------------------------------- MILTON WILLIAMS, individually and on behalf of all other persons similarly situated, Plaintiff v. COWEN (DE), Defendant, Case No. 1:22-cv-02301-MKV (S.D.N.Y., Mar. 21, 2022) alleges violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendant's Web site, https://www.cowen.com/, is not fully or equally accessible to blind and visually-impaired consumers, including the Plaintiff, in violation of the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Web site will become and remain accessible to blind and visually-impaired consumers. COWEN (DE) operates the Cowen online financial advisor service as well as the Cowen website and advertises, markets, and operates in the State of New York and throughout the U.S. [BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 Email: Michael@Gottlieb.legal Jeffrey@Gottlieb.legal Dana@Gottlieb.legal CREDIT MANAGEMENT: Preliminary Scheduling Order Entered in Hale --------------------------------------------------------------- In the class action lawsuit captioned as SHANE HALE v. CREDIT MANAGEMENT, L.P., Case No. 4:21-cv-00877-SDJ (E.D. Tex.), the Hon. Judge entered a preliminary scheduling order as follows: -- Deadline for Plaintiffs to file March 25, 2022 amended pleadings: -- Deadline for Defendants to file April 8, 2022 amended pleadings: -- Deadline for Defendants to disclose April 22, 2022 expert testimony regarding class certification issues: -- Deadline for class certification June 10, 2022 discovery: Credit Management is operating as a debt collection company. A copy of the Court's order dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3KZpAQu at no extra charge.[CC] DECARBONIZATION PLUS: Caused Stockholders to OK Merger, Malork Says ------------------------------------------------------------------- JOHN E. MALORK, on behalf of himself and all others similarly situated, Plaintiff v. ERIK ANDERSON, JENNIFER AAKER, JANE KEARNS, PIERRE LAPEYRE, JR., DAVID LEUSCHEN, ROBERT TICHIO, JIM McDERMOTT, JEFFREY TEPPER, MICHAEL WARREN, RIVERSTONE INVESTMENT GROUP LLC, WRG DCRB INVESTORS, LLC and DECARBONIZATION PLUS ACQUISITION SPONSOR, LLC, Defendants, Case No. 2022-0260 (Del. Ch., March 18, 2022) is a class action against the Defendants for breaches of fiduciary duties. According to the complaint, the Defendants issued materially false and misleading statements in support of the merger between Decarbonization Plus Acquisition Corporation and Hyzon, which were designed to discourage stockholders from exercising their redemption rights. Instead, the Defendants encouraged stockholders to approve the merger, claiming that strong consumer demand for hydrogen fuel vehicles warranted entry into the merger and the acquisition of Hyzon. In reality: (a) many of Hyzon's customers were illusory; (b) Hiringa, supposedly one of Hyzon's largest customers, was only a distributor, not a customer; (c) Hyzon's financial projections were grossly inflated and lacked a reasonable factual basis; and (d) Hyzon was unable to meet a material portion of the vehicle deliverables it had promised in 2021. As a result of the Defendants' materially false and misleading statements, the Plaintiff and Class members were deprived of their right to a fully informed decision whether to redeem their shares and induced stockholders to vote to approve the merger to their detriment and the substantial benefit of Defendants. Riverstone Investment Group LLC is an asset management firm located in New York, New York. WRG DCRB Investors, LLC is an investment firm based in Delaware. Decarbonization Plus Acquisition Sponsor, LLC is a Delaware limited liability company and affiliate of Riverstone Investment Group LLC. [BN] The Plaintiff is represented by: Peter B. Andrews, Esq. Craig J. Springer, Esq. David M. Sborz, Esq. Andrew J. Peach, Esq. Jackson E. Warren, Esq. ANDREWS & SPRINGER LLC 4001 Kennett Pike, Suite 250 Wilmington, DE 19807 Telephone: (302) 504-4957 - and – Samuel H. Rudman, Esq. Mary K. Blasy, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 - and – Travis E. Downs III, Esq. Benny C. Goodman III, Esq. Erik W. Luedeke, Esq. Brian E. Cochran, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 - and – Brian J. Robbins, Esq. Gregory E. Del Gaizo, Esq. ROBBINS LLP 5040 Shoreham Place San Diego, CA 92122 Telephone: (619) 525-3990 DEERE & CO: Monopolizes Repair Service Market, Casselbury Says -------------------------------------------------------------- SAMANTHA CASSELBURY, individually and on behalf of all others similarly situated, Plaintiff v. DEERE & CO. (d/b/a JOHN DEERE), Defendant, Case No. 4:22-cv-04049-SLD-JEH (C.D. Ill., March 14, 2022) is brought against the Defendant for alleged violation of the Sherman Act by monopolizing the repair service market for John Deere brand agricultural equipment with onboard central computers known as engine control units. According to the complaint, Deere's monopolization of the Deere Repair Services Market allows Deere and the Dealerships to charge and collect supra-competitive prices for its services every time a piece of equipment requires the Software to diagnose or complete a repair. Consequently, Plaintiff and Class members have collectively paid millions of dollars more for the repair services than they would have paid in a competitive market. Allegedly, Deere's scheme to prevent independent repairs creates additional revenue for Deere over the entire useful life of every piece of equipment it sells. The Plaintiff seeks declaratory and injunctive relief, treble and exemplary damages, costs, and attorneys' fees. As for equitable relief, Plaintiff seeks an order requiring Deere to make the necessary Software available, at reasonable cost, to individuals and repair shops, says the suit. During the Class Period, Ms. Casselbury purchased Deere Repair Services in Virginia from a John Deere dealership to diagnose and repair Tractor malfunctions and suffered antitrust injury as a result of Defendant's alleged conduct. Deere & Co. is a publicly-traded company headquartered in Moline, Rock Island County, Illinois which manufactures and distributes a range of agricultural, construction, forestry, and commercial and consumer equipment.[BN] The Plaintiff is represented by: Mindee J. Reuben, Esq. Steven J. Greenfogel, Esq. LITE DEPALMA GREENBERG & AFANADOR, LLC 1835 Market Street, Suite 2626 Philadelphia, PA 19096 Telephone: (267) 314-7980 E-mail: mreuben@litedepalma.com sgreenfogel@litedepalma.com - and - Joseph J. DePalma, Esq. Jeremy N. Nash, Esq. LITE DEPALMA GREENBERG & AFANADOR, LLC 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623-3000 E-mail: jdepalma@litedepalma.com jnash@litedepalma.com - and - Larry S. McDevitt, Esq. David M. Wilkerson, Esq. THE VAN WINKLE LAW FIRM 11 N. Market Street Asheville, NC 28801 Telephone: (828) 258-2991 E-mail: lmcdevitt@vwlawfirm.com dwilkerson@vwlawfirm.com DEMOCRACY FORWARD: Bid for Leave to File Amicus Curiae Brief OK'd ----------------------------------------------------------------- In the class action lawsuit captioned as William A. Jacobson v. Mary T. Bassett, Case No. 3:22-cv-00033 (N.D.N.Y.), the Hon. Judge Mae A D'Agostino entered an order granting motion for leave to file an Amicus Curiae Brief regarding motion for preliminary injunction and motion to certify class. The Court saidd, "The Amicus Curiae Brief filed by The Democracy Forward Foundation, is accepted for filing. The Clerk is directed to file the Amicus Brief attached to document no. 45 as a separate docket entry." The suit alleges violation of the Civil Rights Act. Democracy Forward Foundation is a 501(c)(3) non-profit and non-partisan legal services and public policy research organization in Washington, D.C.[CC] DESERT FINANCIAL: 2 Questions Certified to Supreme Court in Cornell ------------------------------------------------------------------- In the case, Eva Cornell, Plaintiff v. Desert Financial Credit Union, et al., Defendants, Case No. CV-21-00835-PHX-DWL (D. Ariz.), Judge Dominic W. Lanza of the U.S. District Court for the District of Arizona certified two questions of law to the Arizona Supreme Court: (1) Does an effective modification of a consumer contract occur when the offeror sends notice of the proposed modification to the offeree, through a communication channel to which the offeree previously consented, even if the offeree fails to respond? (2) If not, what additional showings (such as actual receipt of the notice of proposed modification, subjective understanding of the proposed modification, or affirmative consent to the proposed modification) are necessary to achieve an effective contract modification in this circumstance? I. Introduction In this putative class action, Plaintiff Cornell alleges that Desert Financial violated certain federal regulations that require clear disclosure of a bank's overdraft practices. Desert Financial has, in turn, moved to compel arbitration based on an arbitration clause that it added to its standard terms several years after the Plaintiff opened her account. soliciting supplemental briefing on whether adding this clause resulted in a valid contract modification under Arizona law, the Court concluded that "that the most prudent course of action is to conduct further fact-finding and then seek certification from the Arizona Supreme Court on the unsettled legal issue that lies at the heart of the parties' dispute." To that end, the Court held an evidentiary hearing on March 8, 2022. The evidence presented during the hearing establishes that the Plaintiff received, downloaded, and viewed a statement from Desert Financial in April 2021 that contained a notice of the change. This notice also identified the website Plaintiff could visit to obtain more information about the change. However, the Plaintiff did not visit the website and remained subjectively unaware that an arbitration provision had been added. II. Background In October 2018, the Plaintiff applied to Desert Financial to open a "Membership Savings" account and a "Desert Connect Checking" account. In each application, she "agreed to the terms and conditions of any account that I/we have applied for, and agreed that the credit union may change those terms and conditions from time to time." During the application process, the Plaintiff also consented to the electronic delivery of all future communications from Desert Financial, including all disclosures, notices, and account statements. When the Plaintiff opened her accounts, Desert Financial's Statements of Terms, Conditions, and Disclosures ("Terms") did not include an arbitration clause. She was unaware of the presence or absence of an arbitration clause when she opened the accounts. The Plaintiff also testified during her deposition that she would have opened the accounts even if she had known that disputes would be subject to arbitration. In February 2021, Desert Financial updated its Terms to add an arbitration clause. It did not send the new version of its Terms to the Plaintiff (or to its other 375,000 customers). Instead, it inserted the orange-and-blue banner on the first page of its next cycle of monthly account statements. The banner appeared in the Plaintiff's account statement for the period of Feb. 21, 2021 through March 20, 2021 ("the March 2021 statement"). Because the Plaintiff had chosen to receive electronic delivery of communications from Desert Financial, she did not receive a hard copy of the March 2021 statement in the mail. Instead, she received an email from Desert Financial on March 23, 2021 notifying her that her most recent monthly statement was available. During the early stages of the case, the Plaintiff submitted a declaration avowing that she had never "seen" the March 2021 statement. During the evidentiary hearing, Desert Financial proved otherwise. It is undisputed that the Plaintiff never opted out of the arbitration provision pursuant to the opt-out process described in the Terms. On May 5, 2021, the Plaintiff filed the complaint. On June 24, 2021, Desert Financial moved to compel arbitration. On July 26, 2021, the Plaintiff filed a response. On Aug. 24, 2021, Desert Financial filed a reply. On Oct. 8, 2021, the Court ordered supplemental briefing. On Oct. 22, 2021, the parties filed their supplemental briefs. Desert Financial included, in its supplemental brief, a request for certification to the Arizona Supreme Court. That same day, Desert Financial filed a motion for an evidentiary hearing. On Nov. 16, 2021, the Court heard oral argument. On Nov. 17, 2021, the Court issued an order granting Desert Financial's request for an evidentiary hearing and suggesting that certification to the Arizona Supreme Court would be appropriate following the evidentiary hearing. On March 8, 2022, the evidentiary hearing took place. III. Analysis A. Arizona's Standard For Modification Of Consumer Contracts In her supplemental brief, the Plaintiff argues that "Arizona law permits modification of an already-existing contract only when there is something more than just inquiry or constructive notice. In fact, a unilateral attempt to modify a contract requires an affirmative act of assent by both parties to the contract." The primary case on which the Plaintiff relies is Demasse v. ITT Corp., 984 P.2d 1138 (Ariz. 1999), which, according to her, holds that "Arizona contract law of generalized application requires affirmative assent" before a contract can be modified. The Plaintiff also argues that three District of Arizona cases -- Vantage Mobility Int'l LLC v. Kersey Mobility LLC, 2021 WL 1610229 (D. Ariz. 2021), Rose v. Humana Ins. Co., 2018 WL 888982 (D. Ariz. 2018), and Edwards v. Vemma Nutrition, 2018 WL 637382 (D. Ariz. 2018) -- have "analyzed contract modification and determined that proof of affirmative assent to a contract modification is necessary." Finally, she Plaintiff argues that Sears Roebuck & Co. v. Avery, 593 S.E.2d 424 (N.C. App. 2004), a North Carolina case that applied Arizona law, provides further support for her position. Desert Financial, in contrast, argues that "no published, Arizona decision addresses how to modify standardized consumer contracts." Thus, it argues that Arizona courts would "follow the Restatement of the Law" and identifies the tentative draft of Section 3 of the Restatement of Law, Consumer Contracts as "addressing the precise question posed" in the case and establishing that "a standard contract term in a consumer contract" is modified if "the consumer receives reasonable notice of the proposed modification term." Desert Financial also points to cases from outside the consumer-contract setting to argue that, under Arizona law, "subjective knowledge is not required to accept an offer or modify a contract." Finally, it argues that the Plaintiff's reliance on Demasse is misplaced because Demasse "did not involve standardized consumer contracts," but rather implied employment contracts, and "employment contracts are entirely different than standardized consumer contracts." Desert Financial concludes that "the Restatement and virtually every court to address this issue have thus only required `reasonable notice' to update standardized consumer contracts, not subjective knowledge and a contrary rule requiring subjective knowledge to update standard terms would be untenable." Judge Lanza has thoroughly reviewed the cases cited by the parties and concludes that none authoritatively establishes a framework for analyzing assent to the modification of a consumer contract under Arizona law. The parties' supplemental briefs also contain citations to an array of decisions by federal district courts and other courts applying Arizona law. As an initial matter, because those decisions simply represent attempts to discern the law the Arizona Supreme Court would deem applicable in this circumstance, they are not dispositive. Additionally, many of the parties' cited cases are inapposite. Finally, and most important, although the parties have been able to identify certain authorities that tend to support their respective positions, the overall takeaway is that other courts have reached conflicting and difficult-to-reconcile conclusions about the current state of Arizona's law of contract modification. In Judge Lanza's view, this lack of unanimity is further evidence that the legal issue presented in the case is unsettled and would benefit from clarification. B. Certification Under Arizona Supreme Court Rule 27(a)(3), "the certification order will set forth: (A) The questions of law to be answered; (B) A statement of all facts relevant to the questions certified; (C) A list of the counsel (or pro se parties) appearing in the matter, together with their addresses and telephone numbers; (D) The proportions in which the parties will share the required filing fees, if such proportions are not to be equal; (E) Any other matters that the certifying court deems relevant to a determination of the questions certified." In the case, Judge Lanza holds that the information required by subdivisions (B) and (E) is set forth in earlier portions of the Order. As for subdivision (A), he certifies two questions of law to the Arizona Supreme Court: (1) Does an effective modification of a consumer contract occur when the offeror sends notice of the proposed modification to the offeree, through a communication channel to which the offeree previously consented, even if the offeree fails to respond? (2) If not, what additional showings (such as actual receipt of the notice of proposed modification, subjective understanding of the proposed modification, or affirmative consent to the proposed modification) are necessary to achieve an effective contract modification in this circumstance? As for subdivision (C), the information is as follows: a. Counsel for Plaintiff: Cindy C. Albracht-Crogan and Kaysey L. Fung, Cohen Dowd Quigley, 2425 East Camelback Road, Suite 1100, Phoenix, AZ 85016, (602) 252-8400; Richard D. McCune and David C. Wright, McCune Wright Arevalo, LLP, 3281 East Guasti Road, Suite 100, Ontario, CA 91761, (909) 557-1250; Emily J. Kirk, McCune Wright Arevalo, LLP, 231 North Main Street, Suite 20, Edwardsville, IL 62025, (618) 307-6116. b. Counsel for Defendant: Brian A. Cabianca and David S. Norris, Squire Patton Boggs (US) LLP, 1 East Washington Street, Suite 2700, Phoenix, AZ 85004, (602) 528-4000. As for subdivision (D), the parties will share the required filing fees in equal proportions. IV. Conclusion Accordingly, Judge Lanza certified the aforementioned two questions to the Arizona Supreme Court. The Clerk is directed to file a certified copy of the Order with the Arizona Supreme Court under Arizona Supreme Court Rule 27. The action is stayed pending a response from the Arizona Supreme Court. A full-text copy of the Court's March 11, 2022 Order is available at https://tinyurl.com/2p83n965 from Leagle.com. DETROIT, MI: Court Denies Versen's Bid for Preliminary Injunction ----------------------------------------------------------------- In the lawsuit titled ERIC VERSEN, et al., Plaintiffs v. DETROIT, CITY OF, et al., Defendants, Case No. 21-cv-11545 (E.D. Mich.), Judge Mark A. Goldsmith of the U.S. District Court for the Eastern District of Michigan, Southern Division, issued an Opinion & Order denying the Plaintiff's motion for a preliminary injunction. Plaintiff Eric Versen brings the putative class action against Defendants the City of Detroit and two of its employees, Police Officer Jeremy Woods and Jana Greeno. The matter is before the Court on Versen's motion for a preliminary injunction. The Defendants filed a response, and the Court held a hearing on the motion. Following the hearing, the Court gave the parties an opportunity to file supplemental memoranda on the issue of whether Versen has standing to seek injunctive relief. Versen filed a supplemental memorandum. I. Background According to Versen, he has a practice of placing furniture and household items in areas where indigent people can take them free of charge. He describes this as a "charitable practice" that he intends to continue in the future. The City, however, does not view such practices so favorably. Pursuant to the City's municipal code, it is a blight violation to dump, store or deposit or cause to be dumped, stored or deposited, on any publicly-owned property, or private property or water, within the City any solid waste (Section 42-2-92). Section 42-1-42 empowers the police to impound vehicles "operated in the commission" of a blight violation. To obtain release of an impounded vehicle, the owner of the vehicle may either (i) pay all fines, costs, and fees for the violation, or (ii) provide a copy of a certified bond and contest the blight violation charge at a hearing. On May 21, 2021, Versen used his work van to place a couch in an empty lot in the City. This incident was captured on video and reviewed by Woods, who determined that Versen had committed a blight violation. Three days after the incident, Woods, without a warrant, had the van towed from the street outside Versen's home and impounded. The next day, Greeno issued Versen a blight violation notice. The notice informed Versen that he could either pay a $800 fine and a $30 fee to regain possession of his van, or he could wait to contest the charge in court on Aug. 18, 2021. Because Versen uses the van "for his livelihood," he felt that he could not wait nearly two months for a hearing while deprived of his work van. As a result, Versen felt that he had no choice but to pay the fine and fee to regain possession of his vehicle. He did so, and also incurred towing and storage costs of several hundred dollars. This lawsuit followed. Versen seeks declaratory relief and monetary damages. II. Analysis Mr. Versen contends that the City's impounding of his vehicle was a warrantless (and otherwise unjustified) seizure of his vehicle, in violation of the Fourth Amendment of the U.S. Constitution. He also argues that the Defendants violated his Fourteenth Amendment due process rights by failing to provide him with a pre-seizure hearing or, alternatively, a prompt postdeprivation hearing. Accordingly, Versen asks the Court to issue a preliminary injunction (i) enjoining the City and its agents from impounding vehicles pursuant to Section 42-1-1, and either (ii) enjoining the City and its agents from requiring prepayment of fines or bonds to regain possession of an impounded vehicle, or (iii) ordering the City to provide the owners of impounded vehicles with a hearing on demand within four days of the impounding to challenge the legality of the impound. Judge Goldsmith finds that Versen lacks standing to pursue injunctive relief. Even if Versen possessed standing, the preliminary injunction factors favor denying his motion. A. Standing Judge Goldsmith holds that this case is like Price v. City of Seattle, No. CV03-1365P, 2005 WL 8172772 (W.D. Wash. Jan. 26, 2005). Versen does not challenge the validity of the blight ordinance's prohibition against dumping. Rather, he challenges the manner in which the City's police officers impound an individual's vehicle when the individual is caught using the vehicle in the commission of a blight violation, as well as the manner in which the City provides a hearing to challenge the charge and impound. As a result, the only way that an individual would suffer under the City's allegedly unlawful impound and hearing procedures is if that individual first engages in the illegal conduct of dumping and is caught doing so. Although Versen contends that he plans to keep dumping furniture and other items in the future, O'Shea directs the Court to presume that Versen will not commit further blight violations. This presumption, coupled with the attenuated chance that Versen will again be subjected to the City's allegedly unconstitutional practices (as he would first need to commit a violation, get caught doing so, and have his van impounded), compel the Court's conclusion that Versen's alleged injury absent injunctive relief is too speculative and, therefore, he lacks standing to bring the instant motion for a preliminary injunction. Mr. Versen attempts to liken this case to Alsaada v. City of Columbus, 536 F.Supp.3d 216 (S.D. Ohio 2021), in which the district court granted protesters' motion for a preliminary injunction against a city and its police officers to prevent the police officers from using excessive force against nonviolent protestors, including preventing officers from using excessive force to enforce traffic laws (i.e., dispel orders). However, this case is not like Alsaada, Judge Goldsmith holds. The Alsaada court found that the plaintiffs' risk of future harm was non-speculative because the plaintiffs declared an intention to continue engaging in constitutionally protected activity (i.e., peaceful protests of racial injustice) and produced evidence of the defendants' ongoing, sustained pattern of using excessive force against nonviolent protestors. Mr. Versen does not argue that placing couches or other items in empty lots is a course of conduct that is affected with a constitutional interest. Further, the Alsaada plaintiffs did not declare an intention to commit future traffic violations. Thus, the Alsaada plaintiffs' risk of future injury was not contingent on the plaintiffs violating the law. By contrast, Versen has declared an intention to continue dumping items in the City and, therefore, his risk of future injury is contingent on his committing blight violations. To face a future injury, Judge Goldsmith opines, Versen would need to use his van to commit another blight violation, be caught doing so, and have his van impounded by the police as a result. He, therefore, lacks standing to bring the instant motion for a preliminary injunction. B. Preliminary Injunction Even if Versen possessed standing, he would not be entitled to a preliminary injunction, Judge Goldsmith holds. This burden is considerable, as the preliminary injunction is an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it, Judge Goldsmith opines, citing Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). The circumstances that clearly demand a preliminary injunction are the limited instances where a plaintiff shows that he or she faces an immediate, non-speculative injury if the preliminary injunction is not granted, Judge Goldsmith holds. For these reasons discussed under the standing heading, Versen is unable to make this showing. Accordingly, this is not the rare case where a preliminary injunction is appropriate, Judge Goldsmith finds. III. Conclusion For these reasons, the Court denies Versen's motion for a preliminary injunction A full-text copy of the Court's Opinion & Order dated March 7, 2022, is available at https://tinyurl.com/44mh2e62 from Leagle.com. DISTRICT COUNCIL 37: Faces Gainer Suit Over Unpaid Minimum Wages ---------------------------------------------------------------- SAVIAN GAINER, ORLANDO RIVERA, JUSTINE ESPINOZA, JULIAN DEJESUS, RAMON MARRERA, SHAWN GREY, CLAUDIA QUICK, NANCY DE DELVA, NICOLE LAING, ANDY CAZE, ANTHONY GRAVES, NICOLE COLEMAN, and TANYA MILLER, Individually, and on behalf of all others similarly situated, Plaintiffs v. District Council 37 of the American Federation of State, County & Municipal Employees, Defendant, Case No. 152133/2022 (N.Y. Sup., New York Cty., March 11, 2022) arises from the Defendant's failure to pay proper minimum wages and failure to post a notice summarizing minimum wage provisions in violation of New York Labor Law and the New York Minimum Wage Act. The Plaintiffs are all members of a labor union, the Federation of Field Representatives/Municipal Employees Legal Services Staff Association. Plaintiffs Gainer and Rivera were members of FFR/MELSSA and were employed by DC37 as political legislative aides until they were terminated on March 24, 2020. Plaintiffs Espinoza, DeJesus, Marrera, Grey, de Delva, Laing, Caze, Graves, Coleman, and Miller, are members of FFS/MELSSA and are currently employed by DC37 as organizers. Plaintiff Claudia Quick is a member of FFR/MELSSA and is currently employed by DC37 as a council representative. District Council 37 is a division of the American Federation of State, County & Municipal Employees, a labor union.[BN] The Plaintiffs are represented by: Anne Donnelly Bush, Esq. 43 West 43rd Street, Ste. 117 New York, NY 10036-7424 Telephone: (914) 239-3601 Facsimile: (914) 219-3145 DO & CO NEW YORK: Alvarado Sues Over Improper Wage Practices ------------------------------------------------------------ TITO ALVARADO, on behalf of himself and all others similarly situated, Plaintiff v. DO & CO NEW YORK CATERING, INC., Defendant, Case No. 507264/2022 (N.Y. Sup., Kings Cty., March 11, 2022) arises from the Defendant's engagement in illegal and improper wage practices in violation of the New York Labor Law. According to the complaint, these alleged practices include: (a) requiring Plaintiff and similarly situated warehouse workers to perform work without compensation during meal breaks; (b) failing to pay warehouse workers overtime of time and one-half their regular rate of pay for all hours worked over 40 in a week; and (c) failing to provide accurate wage statements. Plaintiff Alvarado was employed by the Defendant from October 2016 until August 2019. DO & Co New York Catering Inc. operates as a restaurant. The Company offers luxury food, salads, fruits, sandwiches, desserts, and ice creams including event, airline catering, and lounges. DO & Co New York Catering serves clients worldwide.[BN] The Plaintiff is represented by: Louis Ginsberg, Esq. THE LAW FIRM OF LOUIS GINSBERG, P.C. 1613 Northern Boulevard Roslyn, NY 11576 Telephone: (516) 625-0105 DONG BANG CORP: Lee Sues Over Food Service Staff's Unpaid Wages --------------------------------------------------------------- YU JUNG LEE, individually, and on behalf of others similarly situated, Plaintiff v. DONG BANG CORPORATION, MI JA KIM, JOO HEE KIM and SANG KYU KIM, Defendants, Case No. 2:22-cv-01336 (D.N.J., March 11, 2022) is brought pursuant to the Fair Labor Standards Act and the New Jersey Wage and Hour Law seeking to recover minimum wages, overtime compensation, misappropriated tips, and other wages for Plaintiff and her similarly situated co-workers who work or have worked at Defendants' restaurant. Ms. Lee was employed by the Defendants as a server at Dong Bang Grill from 2007 until February 10, 2022. Dong Bang Corp. owns and manages Dong Bang Grill Restaurant, a fine dining restaurant, located in Fort Lee, New Jersey.[BN] The Plaintiff is represented by: Ryan J. Kim, Esq. RYAN KIM LAW, P.C. 222 Bruce Reynolds Blvd., Suite 490 Fort Lee, NJ 07024 Telephone: (718) 573-1111 E-mail: ryan@RyanKimLaw.com DREYER'S GRAND: Yu's 1st Amended Suit Dismissed With Leave to Amend ------------------------------------------------------------------- In the case, LAUREN YU, individually and on behalf of all others similarly situated, Plaintiff v. DREYER'S GRAND ICE CREAM, INC., Defendant, Case No. 20 Civ. 8512 (ER) (S.D.N.Y.), Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York granted Dreyer's motion to dismiss, with leave to amend. The Defendant sought dismissal of the First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. I. Background Lauren Yu brings the putative class action against Dreyer's, alleging that the representations on the label of certain Dreyer's ice cream bars sold under its Haagen-Dazs brand are misleading, because the bars' chocolate coating contains vegetable oil. Ms. Yu seeks injunctive relief and monetary damages for: (1) violations of Sections 349 and 350 of the New York General Business Law ("GBL"), which prohibit deceptive business practices and false advertising; (2) breach of express warranty; (3) breach of the implied warranty of merchantability; (4) violation of the Magnuson Moss Warranty Act, 15 U.S.C. Sections 2301, et seq. ("MMWA"); (5) fraud; and (6) unjust enrichment. She brings the action on behalf of a putative class of similarly situated individuals. Dreyer's is a Delaware corporation with a principal place of business in Oakland, California. It is a leading seller of premium frozen dairy desserts under the Haagen-Dazs brand. Dreyer's sells its Haagen-Dazs Coffee Ice Cream Dipped in Rich Milk Chocolate, Almonds, and Toffee bars (the "Product") in tens of thousands of stores nationwide, including warehouse club stores, supermarkets, convenience stores, gas stations, and drug stores. In May, June, and July of 2020, among other times, Yu, a resident of Manhattan, purchased the Product on numerous occasions. Yu alleges that the Product's front label is misleading because the representation that the ice cream is "dipped in 'rich milk chocolate,'" is false, since the addition of vegetable oil to the chocolate coating "fundamentally changes the nature of the bar's coating." With respect to the Product's front label, Yu claims that since it "represents the Product contains 'rich milk chocolate' without qualification, consumers expect that it only has chocolate ingredients, when this is not accurate." With respect to the ingredient list, which indicates that the Product contains coconut oil and vegetable oil, Yu argues that "[c]onsumers of a high-end premium ice cream bar that claims to be dipped in 'milk chocolate' will not be so distrustful such as to scrutinize the fine print of the ingredient list and uncover the deception," because the label is unambiguous. The Product is sold at a "premium price," approximately $5.99 for a package of three three-ounce bars. Yu contends that as a result of the "false and misleading representations," Dreyer's sells the Product at a higher price than other similar products represented in a non-misleading way, and higher than it would be sold "absent the misleading representations and omissions." She further alleges that she, as well as the proposed class members consisting of all purchasers of the Product who reside in New York, Virginia, Delaware, and Maine during the applicable statutes of limitations, would not have bought the Product or would have paid less for it if they had known the truth. She alleges that she intends to purchase the Product again when she can do so with the assurance that the representations on its labeling are consistent with its ingredients. Ms. Yu brought the action against Froneri US, Inc., on Oct. 13, 2020. On March 5, 2021, the Defendant moved to dismiss the complaint and noted that Yu had sued the wrong entity. Yu filed the FAC against Dreyer's, the correct Defendant, on April 26, 2021. On May 26, 2021, Dreyer's moved to dismiss the FAC pursuant to Rule 12(b)(6). II. Discussion A. New York General Business Law Claims To state a claim under either Section 349 or Section 350, "a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice." i. Alleged Violations of Federal Regulations As Dreyer's points out, the Food, Drug, and Cosmetic Act (the "FDCA"), pursuant to which the United States Food and Drug Administration (the "FDA") issues regulations, does not create a private right of action. While Yu argues that she is not pursuing a private action for violations of the FDCA and is instead bringing separate claims under the New York GBL, the parties dispute whether her GBL claims are an attempt to privately enforce FDA regulations instead of premised on consumer protection grounds. Drawing all inferences in Yu's favor, Judge Ramos opines that she arguably alleges certain "free-standing claims of deceptiveness," separate and apart from the Product's alleged failure to comply with the FDCA and applicable regulations. For example, Yu's complaint includes the definitions of chocolate from Merriam-Webster and "the Free Dicttionary," 15-year-old news articles and comments attributed to consumers and chocolate industry professionals relating to a 2007 industry proposal to re-define chocolate as containing vegetable oils, quotations from "historians of chocolate" and "Jean Hammond of Kilwin's Ice Cream Shops," and references to "surveys" of "typical American consumers." These allegations are arguably independent of the alleged violations of the federal regulations. Therefore, Judge Ramos proceeds to analyze the claims without relying on the purported violations of the FDCA. ii. The Product's Label Yu argues that the phrase "rich milk chocolate" on the Product's label is deceptive because it implies that the Product's coating contains only cacao ingredients rather than vegetable or coconut oil, when, in fact, the coating contains both chocolate and oils. Judge Ramos holds that Yu fails to plausibly allege that a reasonable consumer would conclude that the representations regarding chocolate on the Product's label imply that the Product's coating did not contain any coconut or vegetable oil. First, the Product makes no representations about the ingredients constituting the chocolate flavor, nor does it use language such as "made with" or "contains." Second, a reasonable consumer would not be misled into believing that the Product's coating did not contain any vegetable oils. iii. The Ingredient List Judge Ramos finds that Yu's argument that the "surrounding context" of the Product label precludes reliance on the ingredient list to correct any allegedly misleading representations on the label fails. He says, the Product's label accurately indicates that the Product's coating contains chocolate. Furthermore, Yu does not dispute that the ingredient list accurately identifies the ingredients and discloses the presence of coconut and vegetable oil. Therefore, as Dreyer's argues and unlike the cases relied upon by Yu in which the product's packaging contained misleading representations, the "ingredient list contains more detailed information about the [P]roduct that confirms other representations on the packaging." iv. The Consumer Survey To demonstrate consumer expectations, Yu claims that "surveys have shown that typical American consumers do not expect foods or ingredients in foods that are represented as 'chocolate' to contain vegetable oils," and that the "percentage of customers who did not expect vegetable oils increased significantly when the product in question was made by Haagen-Dazs, a premium brand." Judge Ramos has the same questions as Dreyer's: "Who conducted this survey? What were respondents told? Did respondents see the full package, including ingredient list?" The mysterious survey lends no support to Yu's claims, and her opposition does not mention it. Moreover, Yu "does not represent that the consumers in the survey would expect the Product to contain no vegetable oil, or to contain no other ingredients apart from chocolate made from cacao bean ingredients." v. Consumer Preferences Ms. Yu further alleges that consumers generally prefer chocolate made from cacao beans, as opposed to chocolate made with vegetable oils, because of greater satiety, taste, "mouthfeel," and health and nutritional benefits. Judge Ramos opines that Yu's claims pursuant to Sections 349 and 350 of the GBL will be dismissed. He holds that (i) it is simply not plausible that a reasonable consumer would purchase and eat chocolate covered ice cream bars for health or nutritive benefits or satiety value; (ii) Yu has not plausibly alleged that vegetable oils have been used in the Product to 'replace' cacao butter; (iii) Yu has not adequately alleged that the Product's coating has a different taste or "mouthfeel," as the relevant allegations appear to be based on comments from individuals in the chocolate confectionary industry regarding chocolate candy, not chocolate coatings; and (iv) he agrees with Dreyer's that Haagen-Dazs' reputation has no bearing on whether Yu has stated a claim for deception under the GBL. B. Breach of Express Warranty To assert a breach of express warranty claim under New York law, a plaintiff must allege an "affirmation of fact or promise by the seller, the natural tendency of which was to induce the buyer to purchase and that the warranty was relied upon." Specifically, a breach of express warranty claim must allege (1) a material statement amounting to a warranty; (2) the buyer's reliance on this warranty as a basis for the contract with the immediate seller; (3) breach of this warranty; and (4) injury to the buyer caused by the breach. Furthermore, an express warranty claim requires that "a buyer must provide the seller with timely notice of the alleged breach of warranty." Judge Ramos opines that Yu's breach of express warranty claim fails because, for the same reasons her GBL claims fail, she has not alleged that a reasonable consumer would be misled to believe that the Product does not contain coconut or vegetable oil. Yu has also not pleaded notice as required to establish a breach of express warranty claim. Her allegations, unsupported by any specific facts, are insufficient to show that Yu provided Dreyer's timely notice of the alleged breach. Therefore, Dreyer's motion to dismiss Yu's claim for breach of express warranty is granted. C. Breach of Implied Warranty of Merchantability Under the New York Uniform Commercial Code, "a warranty that the goods will be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." "The implied warranty of merchantability is a guarantee by the seller that its goods are fit for the intended purpose for which they are used and that they will pass in the trade without objection." Judge Ramos finds that the FAC does not come close to alleging that the Product is "unfit to be consumed." Yu's argument that she has alleged that vegetable oils, unlike chocolate, are "linked to numerous health problems," is conclusory and irrelevant, since whether a food is healthful or nutritious is not the standard. Yu's breach of the implied warranty of merchantability fails for the independent reason that she has not alleged timely notice. Accordingly, her claim for breach of implied warranty is dismissed. D. Magnuson Moss Warranty Act The MMWA grants relief to a consumer who is damaged by the warrantor's failure to comply with any obligation under a written warranty. Pursuant to the MMWA, a "written warranty" is defined, in part, as "any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time." As Dreyer's contends, the representations on the Product's label "do not suggest that it is defect free or that it will meet a specified level of performance over a specified period of time; instead, they simply describe the product." Dismissal is also warranted for the independent reason that Yu fails to oppose Dreyer's motion to dismiss her MMWA claim. E. Fraud To state a claim of common law fraud under New York law, a plaintiff must allege that the defendant made "(1) a material misrepresentation or omission of fact; (2) which the defendant knew to be false; (3) which the defendant made with the intent to defraud; (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the plaintiff." While a fraud claim may plead scienter generally, the plaintiff "must still allege facts that give rise to a strong inference of fraudulent intent." This inference may be established by (1) "alleging facts to show that defendants had both motive and opportunity to commit fraud," or (2) "alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness." Ms. Yu's allegations fail to meet the heightened pleading standard under Rule 9(b), Judge Ramos opines. He says, Yu's sole allegation in support of her fraud claim is that Dreyer's "fraudulent intent is evinced by its failure to accurately disclose these issues when it knew not doing so would mislead consumers." This conclusory allegation, devoid of particularized facts giving rise to an inference of scienter, is insufficient, because "the simple knowledge that a statement is false is not sufficient to establish fraudulent intent, nor is a defendants' 'generalized motive to satisfy consumers' desires o] increase sales and profits.'" Moreover, while the existence of accurate information regarding the product's ingredients on the package does not stymie a deceptive labelling claim as a matter of law, it is certainly a substantial barrier to a plaintiff seeking to plead a claim of fraud." In the case, there is no dispute that the Product's ingredient list accurately discloses the presence of coconut and vegetable oil in the Product's coating. Yu's fraud claim is dismissed. F. Unjust Enrichment To establish a claim for unjust enrichment under New York law, the plaintiff must allege that (1) the defendant was enriched; (2) at the plaintiff's expense; and (3) it would be inequitable to permit the defendant to retain what the plaintiff is seeking to recover. As Dreyer's argues, Yu's unjust enrichment claim is duplicative of her other claims. The entirety of her unjust enrichment claim reads: The "Defendant obtained benefits and monies because the Product was not as represented and expected, to the detriment and impoverishment of the Plaintiff and the class members, who seek restitution and disgorgement of inequitably obtained profits." Judge Ramos holds that Dreyer's is correct that the unjust enrichment claim is wholly premised on and duplicative of Yu's GBL claims. Hence, Yu's unjust enrichment claim is dismissed. G. Standing to Pursue Injunctive Relief Ms. Yu claims that had she known the truth about the Product, she would not have purchased it or would have paid less for it. She further alleges that she "will purchase the Product again when she can do so with the assurance that the Product's representations are consistent with its representations." This conditional claim is insufficient to establish standing to pursue injunctive relief for either Yu herself or on behalf of the class. Judge Ramos dismisses Yu's request for injunctive relief. H. Leave to Amend Ms. Yu has already amended the complaint once, after having the benefit of reviewing the Defendant's first memorandum of law in support of its motion to dismiss, brought on the same grounds and making the same or similar arguments as the instant motion. While Yu does not propose any specific amendments to cure her pleading deficiencies, she does request leave to file a second amended complaint should Dreyer's motion to dismiss be granted. In accordance with the liberal spirit of Rule 15, Judge Ramos grants leave to amend. III. Conclusion For the reasons he discussed, Judge Ramos granted Dreyer's motion to dismiss. Yu may file any amended complaint by April 6, 2022. If she does not, the case will be closed. The Clerk of Court is respectfully directed to terminate the motion, Doc. 23. A full-text copy of the Court's March 15, 2022 Opinion & Order is available at https://tinyurl.com/4jf4wv7v from Leagle.com. DRYMAX TECHNOLOGIES: Ortega Seeks Blind's Access to Online Store ---------------------------------------------------------------- JUAN ORTEGA, individually and on behalf of all others similarly situated, Plaintiff v. DRYMAX TECHNOLOGIES, INC., Defendant, Case No. 1:22-cv-02235 (S.D.N.Y., March 18, 2022) is a class action against the Defendant for violations of the Americans with Disabilities Act and the New York City Human Rights Law. According to the complaint, the Defendant has failed to design, construct, maintain, and operate its website to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons. The Defendant's website, Drymaxsports.com, contains access barriers which hinder the Plaintiff and Class members to enjoy the benefits of its online goods, content, and services offered to the general public through the website. These access barriers include, but not limited to: (a) the screen reader fails to describe the promotional images and other images; (b) the screen reader fails to read the social media icon links; (c) the screen reader skips over certain text on the page; (d) the screen reader fails to read the item description link; and (e) the screen reader fails to read the "cart" link when a new item is added. The Plaintiff and Class members seek permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's website will become and remain accessible to blind and visually-impaired individuals. Drymax Technologies, Inc. is an online retail company that conducts business in New York. [BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. Jarrett S. Charo, Esq. William J. Downes, Esq. MIZRAHI KROUB LLP 200 Vesey Street, 24th Floor New York, NY 10281 Telephone: (212) 595-6200 Facsimile: (212) 595-9700 E-mail: ekroub@mizrahikroub.com jcharo@mizrahikroub.com wdownes@mizrahikroub.com EDGE WEALTH: Web Site Not Accessible to Blind, Williams Alleges --------------------------------------------------------------- MILTON WILLIAMS, individually and on behalf of all other similarly situated, Plaintiff v. EDGE WEALTH MANAGEMENT LLC, Defendant, Case No. 1:22-cv-02304-MKV (S.D.N.Y., Mar. 21, 2022) alleges violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendant's Web site, https://www.edgewealth.com/, is not fully or equally accessible to blind and visually-impaired consumers, including the Plaintiff, in violation of the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Web site will become and remain accessible to blind and visually-impaired consumers. EDGE WEALTH MANAGEMENT LLC operates as a wealth management firm. The Company provides investment advisory, insurance, risk and portfolio management, and financial planning services to individuals, trusts, and charitable organizations. Edge Wealth Management serves clients in the United States. [BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 Email: Michael@Gottlieb.legal Jeffrey@Gottlieb.legal Dana@Gottlieb.legal EQUIFAX CREDIT: Court Adopts M&R and Dismisses Clayton Breach Suit ------------------------------------------------------------------ The U.S. District Court for the Western District of North Carolina, Charlotte Division, adopts the Magistrate Judge's Memorandum and Recommendation, and grants the Defendant's motion to dismiss the lawsuit titled WELLESLEY K. CLAYTON, Plaintiff v. EQUIFAX CREDIT INFORMATION SERVICES, LLC, Defendant, Case No. 3:19-cv-00529-RJC-DCK (W.D.N.C.). Background On Aug. 26, 2019, the Plaintiff filed a pro se Complaint in the Superior Court of Mecklenburg County, North Carolina, which was removed to this Court. The Plaintiff filed an Amended Complaint on March 1, 2021. The Amended Complaint alleges the Defendant was negligent in allowing the Plaintiff's data to be breached, which breach resulted in numerous lawsuits and class actions. According to the Amended Complaint, the Plaintiff received documents from attorneys offering monies for his exposure but the Plaintiff did not believe the offers were sufficient, based on, in part, findings made by the district court in the multidistrict litigation proceeding captioned In re: Equifax Inc. Customer Data Security Breach Litigation, Case No. 1:17-md-2800 (N.D. Ga.) (the "Equifax MDL"). Thereafter, the Defendant moved to dismiss the amended complaint because the Plaintiff failed to opt out of the class action settlement in the Equifax MDL. Discussion The Magistrate Judge recommended granting the Defendant's motion to dismiss. The Plaintiff's objection states that "certain considerations were ignored" in the M&R, but provides no specific objections to the M&R other than citing other cases against Equifax that are not relevant for purposes of the Defendant's motion to dismiss. District Judge Robert J. Conrad, Jr., holds that since the Plaintiff failed to direct the Court to a specific error in the M&R, de novo review is not required. Nevertheless, given the Plaintiff's pro se status, and liberally construing his pleadings, the Court conducted a full review of the M&R and other documents of record. In the Equifax MDL, Equifax and the settlement class entered into a global settlement agreement. The settlement class is defined as: The approximately 147 million U.S. consumers identified by Equifax whose personal information was compromised as a result of the cyberattack and data breach announced by Equifax Inc. on Sept. 7, 2017. In re Equifax Inc. Customer Data Security Breach Lit., No. 1:17-md-2800-TWT, 2020 WL 256132, at *2 (N.D. Ga. Mar. 17, 2020). The settlement agreement released the claims related to the data breach that could have been asserted in the Equifax MDL. The order approving the Equifax MDL settlement agreement was appealed and almost entirely affirmed by the Eleventh Circuit, see In re Equifax Inc., 999 F.3d 1247 (11th Cir. June 3, 2021). The United States Supreme Court denied certiorari. The Plaintiff did not opt out of the settlement class. Neither the Plaintiff's response to the Defendant's motion to dismiss nor his objection claim that he opted out of the settlement class. Rather, in response to the Defendant's motion to dismiss, the Plaintiff challenged whether he received proper notice of his rights in the Equifax MDL. The Magistrate Judge concluded those issues should be raised with the court for the Equifax MDL, not this Court. The Court agrees. Plaintiff's case will be dismissed for failing to opt out of the settlement class in the Equifax MDL. Any concerns Plaintiff has with the Equifax MDL settlement agreement, including whether he received proper notice, should be raised with the Equifax MDL court. Conclusion Accordingly, Judge Conrad ruled that the Magistrate Judge's Memorandum and Recommendation is adopted. The Defendant's motion to dismiss is granted. This case is dismissed without prejudice. The Clerk of Court is directed to close this case. A full-text copy of the Court's Order dated March 7, 2022, is available at https://tinyurl.com/4ped7f3u from Leagle.com. FAMILY DOLLAR: Brown Files Suit Over Sanitation Issue ----------------------------------------------------- KIMBERLY BROWN, individually and on behalf of all others similarly situated, Plaintiffs v. FAMILY DOLLAR, INC. and DOLLAR TREE, INC., Defendants, Case No. 2:22-cv-00040-BSM (E.D. Ark., March 10, 2022) arises from the Defendants' negligent, reckless, and/or intentional practice of selling products that may be contaminated by virtue of a rodent infestation and other unsanitary conditions in stores throughout Arkansas, Louisiana, Mississippi, Alabama, Tennessee, and Missouri. The Defendants sell groceries and household goods at discounted prices in stores throughout the United States including over-the-counter medications, medical devices, dietary supplements, cosmetics, human food, and pet food. According to the complaint, the Defendants omitted information regarding the rodent infestation from all advertising, promotion, or other contacts with Plaintiffs and members of the Classes prior to their purchase of the products and continued to ship the products to its stores from the warehouse. By knowingly failing to disclose the rodent infestation and associated risk of contamination to consumers and by failing to correct the problem, Plaintiffs and the Classes purchased products of a lesser standard, grade and quality represented that do not meet ordinary and reasonable consumer expectations regarding the quality or value of the products and are unfit for their intended purpose. Moreover, the contamination associated with the rodent infestation poses a health risk to consumers that used or handled the products, says the suit. Plaintiff Brown purchased human food, dog food, cosmetics, dental products, over the counter medication, feminine products, and eye drops from Family Dollars located in Arkansas.[BN] The Plaintiff is represented by: James D. Robertson, Esq. Jerry D. Garner, Esq. BARBER LAW FIRM PLLC 425 West Capitol Avenue, Suite 3400 Little Rock, AR 72201 Telephone: (501) 707-6125 E-mail: jrobertson@barberlawfirm.com jgarner@barberlawfirm.com - and - Gregory W. Aleshire, Esq. ALESHIRE ROBB, P.C. 284 7 Ingram Mill Road - A102 Springfield, MO 65804 Telephone: (417) 869-3737 FANNIE MAE: Court Junks Securities Suits in D.C ----------------------------------------------- Federal National Mortgage Association (doing business as Fannie Mae) disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 15, 2022, that it is a defendant in two cases pending in the U.S. District Court for the District of Columbia, including a consolidated class action. In both cases, Fannie Mae stockholders filed amended complaints on November 1, 2017. On September 28, 2018, the court dismissed all of the plaintiffs' claims in these cases, except for their claims for breach of an implied covenant of good faith and fair dealing. Both cases, and a third case that was voluntarily dismissed on November 18, 2021. Fannie Mae is a source of financing for mortgages in the United States, with $4.2 trillion in assets as of December 31, 2021. Organized as a government-sponsored entity, Fannie Mae is a shareholder-owned corporation with its charter is an act of Congress, which establishes that its purposes to provide liquidity and stability to the residential mortgage market and to promote access to mortgage credit. FANNIE MAE: Dismissal of Shareholder Suit Under Appeal ------------------------------------------------------ Federal National Mortgage Association (doing business as Fannie Mae) disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 15, 2022, that a shareholder suit filed in June 1, 2017 by preferred and common stockholders of Fannie Mae in the U.S. District Court for the Western District of Michigan is currently on appeal. Plaintiffs filed a complaint for declaratory and injunctive relief and filed a motion for summary judgment on October 6, 2017. On September 8, 2020, the court denied plaintiffs' motion for summary judgment and granted defendants' motion to dismiss. The plaintiffs filed a notice of appeal with the U.S. Court of Appeals for the Sixth Circuit on October 27, 2020. Fannie Mae is a source of financing for mortgages in the United States, with $4.2 trillion in assets as of December 31, 2021. Organized as a government-sponsored entity, Fannie Mae is a shareholder-owned corporation with its charter is an act of Congress, which establishes that its purposes to provide liquidity and stability to the residential mortgage market and to promote access to mortgage credit. FANNIE MAE: Shareholder Suit Remanded to District Court ------------------------------------------------------- Federal National Mortgage Association (doing business as Fannie Mae) disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 15, 2022, that preferred and common stockholders of Fannie Mae filed a complaint for declaratory and injunctive relief in the U.S. District Court for the District of Minnesota. The court dismissed the case on July 6, 2018. On October 6, 2021, the U.S. Court of Appeals for the Eighth Circuit affirmed in part and reversed in part the district court's ruling and remanded the case to the district court to determine whether the stockholders suffered compensable harm and are entitled to retrospective relief. Fannie Mae is a source of financing for mortgages in the United States, with $4.2 trillion in assets as of December 31, 2021. Organized as a government-sponsored entity, Fannie Mae is a shareholder-owned corporation with its charter is an act of Congress, which establishes that its purposes to provide liquidity and stability to the residential mortgage market and to promote access to mortgage credit. FB HOSPITALITY: Harrington Seeks Bartenders' Unpaid Minimum Wages ----------------------------------------------------------------- Brendan Harrington, individually and on behalf of all others similarly situated, Plaintiff v. FB Hospitality, LLC; Brooklyn Winery LLC; DC Winery, LLC; and Chicago Winery, LLC, collectively d/b/a First Batch Hospitality; Brian Leventhal; and John Stires, individually, Defendants, Case No. 1:22-cv-00689 (D.D.C., March 14, 2022) arises from the Defendants' unlawful policy and practice of paying all their employee servers and bartenders, including Plaintiff, sub-minimum hourly wages under the tip credit in violation of the Fair Labor Standards Act and the District of Columbia Minimum Wage Revision Act. Brendan Harrington is an individual and resident of Washington, DC. He was employed by the Defendants as a bartender within the three-year period preceding the filing of this lawsuit. FB Hospitality, LLC operates restaurants and wineries with locations in New York, the District of Columbia, and Illinois.[BN] The Plaintiff is represented by: Michelle Cassorla, Esq. Harold L. Lichten, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston St., Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 E-mail: mcassorla@llrlaw.com hlichten@llrlaw.com - and - Drew N. Herrmann, Esq. Pamela G. Herrmann, Esq. Allison H. Peregory, Esq. HERRMANN LAW, PLLC 801 Cherry St., Suite 2365 Fort Worth, TX 76102 Telephone: (817) 479-9229 Facsimile: (817) 840-5102 E-mail: drew@herrmannlaw.com pamela@herrmannlaw.com aperegory@herrmannlaw.com FIRSTENERGY CORP: Consolidated RICO Case Stayed ----------------------------------------------- Firstenergy Corp. disclosed in its Form 10-K Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 16, 2022, that a consolidated multi-district litigation composed of "Smith v. FirstEnergy Corp. et al.," "Buldas v. FirstEnergy Corp. et al." and "Hudock and Cameo Countertops, Inc. v. FirstEnergy Corp. et al," filed in July 27, 2020, July 31, 2020, and August 5, 2020, respectively in the U.S. District Court for the Southern District of Ohio was stayed after the court granted the motion on December 29, 2021. Purported customers of FE filed putative class action lawsuits against FE and FESC, as well as certain current and former FE officers, alleging civil Racketeer Influenced and Corrupt Organizations Act (RICO) violations and related state law claims. The court denied FE's motions to dismiss and stay discovery on February 10 and 11, 2021, respectively, and the defendants submitted answers to the complaint on March 10, 2021. The plaintiffs moved to certify the case as a class action on June 28, 2021, and moved for leave to amend the complaint to add FES as a defendant on September 27, 2021. The court granted the motion to amend on November 10, 2021. On November 9, 2021, the court issued an order granting Plaintiffs' motion for class certification, but vacated that order on November 19, 2021, to allow defendants to take the named plaintiffs' depositions and to file an opposition to the motion, which they filed on December 14, 2021. On November 19, 2021, FE and FESC moved for judgment on the pleadings. One of the individual defendants moved to dismiss the amended complaint on November 24, 2021. On December 28, 2021, the parties jointly moved the court to stay consideration of the pending motions for class certification, to dismiss, and for judgment on the pleadings for 45 days. The court granted the motion on December 29, 2021, and the cases are currently stayed. FE and its subsidiaries are principally involved in the transmission, distribution, and generation of electricity. FIRSTENERGY CORP: Settlement Talks Over Emmons RICO Suit Underway ----------------------------------------------------------------- Firstenergy Corp. disclosed in its Form 10-K Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 11, 2022, that it is engaged with the parties in settlement discussions with regards to the case captioned "Emmons v. FirstEnergy Corp. et al." (Common Pleas Court, Cuyahoga County, OH, August 4, 2020). A purported customer of FirstEnergy filed a putative class action lawsuit against FE and its subsidiaries alleging several causes of action, including negligence and/or gross negligence, breach of contract, unjust enrichment, and unfair or deceptive consumer acts or practices. On October 1, 2020, plaintiffs filed a First Amended Complaint, adding as a plaintiff a purported customer of FirstEnergy and alleging a civil violation of the Ohio Corrupt Activity Act and civil conspiracy against FE. On May 4, 2021, the court granted the defendants' motion to dismiss plaintiffs' breach of contract claims and denied the remainder of the motions to dismiss. The defendants submitted answers to the complaint on June 1, 2021. Discovery is proceeding. On December 30, 2021, the plaintiff filed a Second Amended Complaint removing one of the named plaintiffs and updating the class definition. Said lawsuit was consolidated in S.D. Ohio alleging, among other things, civil violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). FOREVER YOUNG: Faces Mota Suit Over Alleged Telephonic Sales Calls ------------------------------------------------------------------ BARBARA MOTA, individually and on behalf of all others similarly situated v. FOREVER YOUNG MEDSPA LLC, Case No. CACE-22-004077 (Fla. Cir., Broward Cty.,, March 17, 2022) contends that the Defendant promotes and markets its merchandise, in part, by placing unsolicited telephone messages to wireless phone users, in violation of the Florida Telephone Solicitation Act. The Defendant is a medical spa that provides surgical and non-surgical aesthetic treatments, procedures, and products. To promote its goods and services, the Defendant allegedly engages in telephonic sales calls to consumers without having secured prior express written consent as required by the FTSA. The Defendant's telephonic sales calls have caused Plaintiff and the Class members harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy. Through this action, the Plaintiff seeks an injunction and statutory damages on behalf of herself and the Class members, as defined below, and any other available legal or equitable remedies resulting from the unlawful actions of the Defendant, says the suit.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett 0. Berg, Esq. SHAMIS & GENTILE P.A. 14 NE 1st Ave., Suite 705 Miami, FL 33132 Telephone: 305-479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. Christopher Gold, Esq. EDELSBERG LAW, P.A. 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Telephone: (786) 289-9471 Facsimile: (786) 623-0915 E-mail: scott@edelsberglaw.com chris@edelsberglaw.com FREEPORT-MCMORAN: Faces Putative Class Suit in NJ Court ------------------------------------------------------- Freeport-McMoRan 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 15, 2022, that it is facing a putative class action in the Superior Court of New Jersey. On January 30, 2017, case docketed "Juan Duarte, Betsy Duarte and N.D., Infant, by Parents and Natural Guardians Juan Duarte and Betsy Duarte, Leroy Nobles and Betty Nobles, on behalf of themselves and all others similarly situated v. United States Metals Refining Company (USMR), Freeport-McMoRan Copper & Gold Inc. and Amax Realty Development, Inc.," Docket No. 734-17, against USMR, Freeport-McMoRan and Amax Realty Development, Inc. The defendants removed this litigation to the U.S. District Court for the District of New Jersey, where it remains pending, and FMC was added as a defendant. The suit alleges that USMR, an indirect wholly owned subsidiary of Freeport-McMoRan, generated and disposed of smelter waste at the site and allegedly released contaminants on-site and off-site through discharges to surface water and air emissions over a period of decades and seeks unspecified compensatory and punitive damages for economic losses, including diminished property values, additional soil investigation and remediation and other damages. In January 2020, the parties completed briefing on the plaintiffs' motion for class certification. The judge indicated in late 2021 that the plaintiffs may submit rebuttal expert reports, which will likely result in additional discovery and refiling of a new briefing on class certification. Freeport-McMoRan is an international mining company with headquarters in Phoenix, Arizona. GEMINI TRUST: Fails to Secure Consumers' IRAs, Griffin Suit Claims ------------------------------------------------------------------ MARSHALL GRIFFIN, individually and on behalf of all others similarly situated, Plaintiff v. GEMINI TRUST COMPANY, LLC, and IRA FINANCIAL TRUST COMPANY, Defendants, Case No. 3:22-cv-01747-AGT (C.D. Cal., March 17, 2022) is a class action against the Defendant for negligence, negligence per se, and breach of implied contract. The case arises from the Defendant's failure to adequately secure and safeguard the individual retirement accounts (IRAs) of the Plaintiff and similarly situated consumers following a cyber-attack at IRA Financial in or around February 2022. In addition, the Defendants and their employees failed to properly monitor the computer network and systems that maintained the IRAs. Had the Defendants properly monitored their property, they would have discovered the intrusion sooner. The data breach reportedly resulted in at least $36 million in crypto currency stolen from Class members' IRAs, including Plaintiff who lost 2 Bitcoins worth approximately $85,000. Gemini Trust Company, LLC is a cryptocurrency exchange with its principal place of business at 600 Third Avenue, 2nd Floor, New York, New York. IRA Financial Trust Company is a financial services company, with its principal place of business at 5024 S. Bur Oak Place, Suite 200, Sioux Falls, South Dakota. [BN] The Plaintiff is represented by: Alex R. Straus, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 280 S. Beverly Drive Beverly Hills, CA 90212 Telephone: (917) 471-1894 Facsimile: (865) 522-0049 E-mail: astraus@milberg.com - and – Gary M. Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 227 W. Monroe Street, Suite 2100 Chicago, IL 60630 Telephone: (847) 208-4585 E-mail: gklinger@milberg.com GENERAL MOTORS: Hammerschmidt Appeals Airbag Defect Suit Dismissal ------------------------------------------------------------------ Plaintiffs Joseph Hammerschmidt, et al., filed an appeal from a court ruling entered in the lawsuit styled JOSEPH HAMMERSCHMIDT, individually and on behalf of all others similarly situated, Plaintiff v. GENERAL MOTORS, LLC, Defendant, Case No. 0:20-cv-01773-DWF-BRT, in the U.S. District Court for the District of Minnesota. As reported in the Class Action Reporter, this lawsuit was filed on August 14, 2020 against the Defendant for breach of implied warranty of merchantability, fraudulent omission, and violations of the Minnesota Prevention of Consumer Fraud Act, the False Statement in Advertising Act, and the Unfair and Deceptive Trade Practices Act. According to the complaint, the Defendant manufactured, marketed and sold or leased the 2010 through 2011 Chevrolet Camaro vehicles in the United States with design or manufacturing defects in their airbag systems. The defect can cause the right front passenger frontal airbag to fail to deploy when it otherwise should which presents a grave safety hazard to consumers, including the Plaintiff, in an event of a crash. Despite numerous reports about the airbag defect, the Defendant failed to notify consumers about it, failed to offer to fix the problem, or to reimburse consumers who have incurred damages as a result of it. Had Plaintiff and Class Members known about the defect, they would not have purchased the Class Vehicles or would have paid less for them. As a result of their reliance on the Defendant's omissions and/or misrepresentations, owners and/or lessees of the Class Vehicles have suffered ascertainable loss of money, property, and/or loss in the value of their Class Vehicles. On June 25, 2021, the Defendant filed a motion to dismiss for failure to state a claim which the Court granted on February 3, 2022, through a Memorandum Opinion and Order signed by Judge Donovan W. Frank. The Order stated that Plaintiffs' claims in the consolidated class action complaint are dismissed with prejudice. GM's motion to strike nationwide class allegations in the consolidated class action complaint was denied as moot. The Plaintiffs now seek a review of the order. The appellate case is captioned as Joseph Hammerschmidt, et al. v. General Motors LLC, Case No. 22-1511, in the United States Court of Appeals for the Eighth Circuit, filed on March 11, 2022. The briefing schedule in the Appellate Case states that: -- Transcript is due on or before April 20, 2022; -- Appendix is due on May 2, 2022; -- BRIEF APPELLANT, Joseph Hammerschmidt and Edward Jackson is due on May 2, 2022; and -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant.[BN] Plaintiffs-Appellants Joseph Hammerschmidt and Edward Jackson, individually and on behalf of all others similarly situated, are represented by: Garrett D. Blanchfield, Jr. Brant D. Penney, Esq. REINHARDT & WENDORF W1050 First National Bank Building 332 Minnesota Street Saint Paul, MN 55101-0000 Telephone: (651)- 287-2100 E-mail: g.blanchfield@rwblawfirm.com b.penney@rwblawfirm.com - and - Marc L. Godino, Esq. Danielle L. Manning, Esq. GLANCY & PRONGAY 1925 Century Park, E., Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 E-mail: mgodino@glancylaw.com dmanning@glancylaw.com - and - Mark S. Greenstone, Esq. GREENSTONE LAW FIRM 1925 Century Park, E., Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 E-mail: mgreenstone@greenstonelaw.com - and - Charles L. Williams, Esq. WILLIAMS & SKILLING 7104 Mechanicsville Turnpike, Suite 204 Mechanicsville, VA 23111 Telephone: (804) 447-0307 Defendant-Appellee General Motors LLC is represented by: Marjan A. Batchelor, Esq. MAYER & BROWN 71 S. Wacker Drive Chicago, IL 60606-0000 Telephone: (312) 701-7863 - and - Daniel E. Jones, Esq. Archis Ashok Parasharami, Esq. MAYER & BROWN 1999 K Street, N.W. Washington, DC 20006-1101 Telephone: (202) 263-3000 E-mail: djones@mayerbrown.com aparasharami@mayerbrown.com - and - John Nadolenco, Esq. MAYER & BROWN 350 S. Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: (213) 229-5173 E-mail: jnadolenco@mayerbrown.com GENERAL MOTORS: S.D. Ohio Denies Bid to Dismiss Riley Class Suit ---------------------------------------------------------------- In the case, MARK RILEY, on behalf of himself and all others similarly situated, Plaintiff v. GENERAL MOTORS, LLC, Defendant, Case No. 2:21-cv-00924 (S.D. Ohio), Judge Algenon L. Marbley of the U.S. District Court for the Southern District of Ohio, Eastern Division, issued an Opinion and Order: 1. denying GM's Motion to Dismiss; and 2. granting GM's Motion to Strike Plaintiff's request for Punitive Damage. I. Background On June 15, 2017, Mark Riley purchased a new 2017 GMC Acadia from an authorized General Motors dealership in Columbus, Ohio. That dealer assured Riley that his Acadia was defect free and under GM's New Vehicle Limited Warranty. Soon after his purchase, however, Riley began experiencing problems with his new vehicle. Up to six times per week, Riley had trouble parking his Acadia. When Riley shifted his Acadia into the "Park" gear, his vehicle often flashed an error signal in the instrument panel. This signal indicated that the vehicle was not in "Park" when, in fact, Riley had moved the shifter to the "Park" position. Importantly, when the vehicle was unable to detect that it was in "Park," it could neither be shut off nor locked. To solve this problem, Riley developed some practical solutions: he wiggled the shifter; shifted through gears; or turned the engine on and off. After performing one or more of these techniques, Riley's Acadia would eventually recognize the vehicle as "Parked." In addition to addressing the problem on his own, Riley also alerted the GM dealer from which he purchased the vehicle. In response, the dealer's service advisor represented to Riley that although there was no recall then, GM was aware of the issue. On two subsequent occasions, Riley repeated his initial complaint to the same GM dealer. Finally, on Nov. 1, 2018, Riley, through counsel, complained directly to GM about the shifter issue. Approximately 14 months later in January 2020, Riley tried his luck with a different authorized GM dealer. By then, GM had issued a Technical Service Bulletin that purportedly addressed the shifter problem: TSB, No. 19-NA-206. This second dealership worked on Riley's Acadia pursuant to TSB, No. 19-NA-206. Despite this effort, Riley's Acadia continued to experience the shifter problem as late as Jan. 27, 2021. The Plaintiff filed his putative class action Complaint on March 4, 2021, alleging breaches of contract and warranty arising from the sale or lease of certain GM vehicles. On May 7, 2021, the Defendant filed its Motion to Dismiss. It seeks dismissal on a number of bases. First, the Defendant moves to dismiss or stay the case sub judice pending the outcome of a related action against GM -- Napoli-Bosse v. Gen. Motors LLC, 453 F.Supp.3d 536 (D. Conn. 2020) -- under the first-to-file rule. That case seeks a nationwide class action and various state sub-classes covering a subset of the vehicles at issue in the present case. Next, the Defendant also moves to dismiss for failure to state a claim under Rule 12(b)(6). Further, asserting a lack of subject matter jurisdiction under Rule 12(b)(1), the Defendant seeks to limit the scope of the putative class to those who purchased or leased the exact same vehicle model and manufacturing year as purchased by the Plaintiff. Additionally, in the event any of the Plaintiff's claims survive its Motion to Dismiss, the Defendant moves to strike the Plaintiff's request for punitive damages. The Plaintiff timely filed his Response in Opposition, and the Defendant timely filed its Reply. Finally, the Plaintiff filed a Notice of Supplemental Authority. Thus, the Defendant's motion is now ripe for review. II. Law & Analysis The Defendant moves to dismiss or stay the action based on the first-to-file rule. Alternatively, it moves to dismiss the Plaintiff's Complaint for a failure to state a claim upon which relief can be granted. In the event the Plaintiff's claims survive its Motion to Dismiss, the Defendant moves to strike the Plaintiff's request for punitive damages. Finally, the Defendant moves to dismiss the Plaintiff's claims based on vehicles distinct from the one he purchased based on subject matter jurisdiction. A. Motion to Dismiss or Stay under First-to-File Rule Courts examine three factors in determining whether to apply the first-to-file rule: "(1) the chronology of events, (2) the similarity of the parties involved, and (3) the similarity of the issues or claims at stake." If these factors are met, then "the court must also determine whether any equitable considerations, such as evidence of 'inequitable conduct, bad faith, anticipatory suits, or forum shopping,' merit not applying the first-to-file rule in a particular case." Regarding the chronology of events, the Court looks to the respective filing dates of the complaints in question. The Defendant notes that it is undisputed that Napoli-Bosse was filed before Riley. Consistent with the Defendants' assertion, the Plaintiff offers no response. Accordingly, Judge Marbley holds that this factor weighs in favor of applying the first-to-file rule. Next, considering the similarities of the parties involved in the cases, Judge Marbley finds that (i) the Defendant in the present case is exactly the same as the Defendant in Napoli-Bosse: General Motors LLC; (ii) the Plaintiffs in each case are neither wholly identical nor distinct, instead they overlap; and (iii) the putative classes in the present cae and in Napoli-Bosse differ on two grounds, one more important than the other: (1) geographic scope; and (2) the definition of the Class Vehicle. Finally, Judge Marbley rejects the Defendant's assertion that the issues or claims at stake are sufficiently similar. He finds that the claims substantively distinct. Hence, determining that they weigh against application of the first-to-file rule, the Motion to Dismiss on this basis is denied. B. Motion to Dismiss under 12(b)(6) 1. Breach of Express Warranty The Plaintiff alleges that the New Vehicle Limited Warranty that accompanied his Acadia is an express warranty under Ohio law and that Defendant breached that warranty. The Defendant argues that the Plaintiff fails to state a claim for breach of warranty for several reasons. First, according to the Defendant, the Limited Warranty is not an express warranty. Second, the Plaintiff does not allege a defect that would be covered by the warranty. Third, the Plaintiff has not adequately alleged a breach. Finally, the Plaintiff does not adequately allege "pre-suit notice," a required element under Ohio law. The Plaintiff rejoins each of the Defendant's points. Judge Marbley holds that (i) under Ohio Revised Code section 1302.26, courts have repeatedly recognized "repair-and-replace" warranties as express warranties; (ii) the Plaintiff has sufficiently pleaded that the Defendant did not repair or replace within a reasonable time as required by the express warranty; (iii) the Plaintiff has adequately pleaded a pre-suit notice; and (iv) the Defendant does not assert that the Plaintiff failed to allege he "suffered injury as a result of the defect" as required under Ohio law. For these reasons, the Defendant's Motion to Dismiss this claim is denied. 2. Breach of Contract The Defendant argues that the Plaintiff has failed to state a breach of contract claim for two primary reasons: (1) the parties are not in privity; and (2) the claim is duplicative of its express warranty claim. As a threshold matter, the Plaintiff is not clear about what contract it entered into with the Defendant. He states "in connection with the sale or lease of the Class Vehicles, the Plaintiff and the class members entered into written contracts with the Defendant." Because the Plaintiff alleges that he purchased his vehicle from an authorized dealer and not GM directly, he would need to allege that the dealer was an agent of GM. Absent this allegation, the Plaintiff's breach of contract claim quickly falls apart. Yet, if the Plaintiff's breach of contract claim is exclusively about the limited warranty, according to the Defendant, it suffers from a different problem: It is duplicative of its express warranty claim. As discussed under the final factor under Baatz v. Columbia Gas Transmission, LLC, 814 F.3d 785, 789 (6th Cir. 2016) -- similarity of issues, the Plaintiff's claims are not duplicative. The Plaintiff's argument demonstrating that pleading in the alternative is his right under Rule 8(a) is enough to overcome the Defendant's contention. Finally, the contract at issue is the limited warranty. This conclusion renders Defendant's privity argument irrelevant. Accordingly, the Defendant's Motion to Dismiss the Plaintiff's breach of contract claim based on either privity or surplusage is denied. 3. Breach of the Implied Warranty of Merchantability The Plaintiff, in a footnote, purports to withdraw his claim for breach of the implied warranty of merchantability. Accordingly, Judge Marbley construes the Plaintiff's withdraw as amending its Complaint as a matter of course which he is entitled to do once under Rule 15(a). Moreover, this is specifically contemplated by the 2009 amendments of Rule 15(a). Thus, the Plaintiff's claim for breach of the implied warranty of merchantability is dismissed without prejudice. 4. Breach of Warranty under the Magnuson Moss Act First, "the Magnuson-Moss Warranty Act ("MMWA") is a vehicle to assert state law breach of warranty claims in federal court. Because "the MMWA does not create a unique federal warranty, 'to the extent the state-law express and implied warranty claims survive dismissal, so does the MMWA claim.'" Therefore, because the Plaintiff has sufficiently pled his breach of express warranty claim, he also satisfies the pleading requirement of MMWA. As such, the Defendant's Motion to Dismiss the MMWA claim is denied. C. Motion to Strike Plaintiff's Request for Punitive Damages The Defendants also move to strike under Federal Rule of Civil Procedure 12(f). Relying on Atsco Holdings Corp. v. Air Tool Service Co., CASE NO. 1:15CV1586, 2016 WL 3078902, at *2 (N.D. Ohio June 1, 2016) and Harwood v. Avaya Corp., No. C2-05-828, 2007 WL 1598065, at *1 (S.D. Ohio May 31, 2007), the Defendant argues that the Court can and should strike requests for punitive damages absent a tort or fraud-based claim. Moreover, according to them, without assertions of "demonstrated malice or aggravated or egregious fraud," the Plaintiff cannot recover punitive damages. The Plaintiff contends that punitive damages are available in limited circumstances in a claim for breach of warranty, citing Complete. Moreover, he argues that it cannot be determined at this stage of the litigation whether he asserts no basis for the recovery of punitive damages. Judge Marbley holds that the Plaintiff asserts no additional facts that suggest GM's alleged breach of contract and warranties amount to an independent tort. Moreover, to the extent Plaintiff unearths evidence of such conduct in discovery, he may always seek to amend his Complaint. Accordingly, the Defendant's Motion to Strike is granted. D. Motion to Dismiss under 12(b)(1) The Defendant contends that some of the Plaintiff's claims must be dismissed for lack of subject matter jurisdiction. It maintains that because the Plaintiff has not asserted facts that suggest that he has been injured by any of the Class Vehicles other than his own, his claims cannot satisfy the standing requirement. The Plaintiff responds by offering a different standard and asserting that it is inappropriate to consider the Defendant's motion on this basis at this stage. According to him, all that is required of the named-Plaintiff to satisfy standing is to plead substantial similarity between the product he purchased and the others he did not. He relies primarily on Hawes v. Macy's Inc., 346 F.Supp.3d 1086, 1091 (S.D. Ohio 2018) for this proposition. Judge Marbley opines that the facts are quite similar to Hawes. Named-Plaintiff Riley purchased a product from GM that he alleges suffers from a discrete issue: Shifter malfunction. Moreover, he purports to represent unnamed class members who also purchased (or leased) similar products (vehicles) from authorized dealerships (a similar retailer) made by the same manufacturer (GM). Furthermore, as relied on in Hawes, courts have noted that it is not clear whether the issue raised by the Defendants "is a question of standing or adequacy of representation." Rather than complicate this unanswered issue, Judge Marbley "will defer ruling on the issue until the class certification stage." Accordingly, the Defendants Motion to Dismiss based on 12(b)(1) is denied. III. Conclusion For the reasons he set forth, Judge Marbley denied the Defendant's Motion to Dismiss. He granted the Defendant's Motion to Strike the Plaintiff's request for Punitive Damages. Finally, per the Plaintiff's Response in Opposition, the Breach of Implied Warranty of Merchantability Claim is dismissed without prejudice. A full-text copy of the Court's March 15, 2022 Opinion & Order is available at https://tinyurl.com/5e7vbc7w from Leagle.com. GOOGLE LLC: Curley Sues Over Race Discrimination in the Workplace ----------------------------------------------------------------- APRIL CURLEY, individually and on behalf of all others similarly situated, Plaintiff v. GOOGLE, LLC, Defendant, Case No. 5:22-cv-01735 (N.D. Cal., March 18, 2022) is a class action against the Defendant for race discrimination, retaliation, and sex and sexual orientation discrimination in violation of the New York State Human Rights Law and the New York City Human Rights Law. The case arises from the Defendant's alleged hostile work environment and company-wide discriminatory practices against its African American and Black employees. Google hires few Black employees and steers them into lower-level roles, pays them less, and denies them advancement and leadership roles because of their race. Black Google employees face a hostile work environment and suffer retaliation if they dare to challenge or oppose the company's discriminatory practices. As a result, the Plaintiff and similarly situated Black employees at Google earn and advance less than non-Black employees and suffer higher rates of attrition. Google, LLC is a technology company, with a principal place of business in Mountain View, California. [BN] The Plaintiff is represented by: Ben Crump, Esq. BEN CRUMP LAW, PLLC 633 Pennsylvania Avenue Northwest, Floor 2 Washington DC 20004 Telephone: (800) 713-1222 - and – Suzanne E. Bish, Esq. George Robot, Esq. Daniel Lewin, Esq. STOWELL & FRIEDMAN LTD. 303 W. Madison St., Suite 2600 Chicago, IL 60606 Telephone: (312) 431-0888 E-mail: sbish@sfltd.com - and – Sam Sani, Esq. SANI LAW, APC 15720 Ventura Blvd., Suite 405 Encino, CA 91436 Telephone: (310) 935-0405 Facsimile: (310) 935-0409 E-mail: ssani@sanilawfirm.com GREYSTAR MANAGEMENT: Principe Sues Over Accountants' Unpaid Wages ----------------------------------------------------------------- Michelle Principe, individually and on behalf of all others similarly situated v. Greystar Management Services, L.P., Case No. 2:22-cv-00429-MTL (D. Ariz., March 18, 2022) seeks to recover unpaid overtime wages and other damages owed by Greystar. Ms. Principe worked for Greystar as a property accountant. Principe and other property accountants for Greystar regularly worked in excess of 40 hours in a week. Greystar allegedly did not pay Principe and the other property accountants overtime when they worked in excess of 40 hours in a week. Instead, Greystar improperly classified Principe and the other property accountants as exempt employees and paid them a salary with no overtime compensation, the lawsuit says. Greystar develops, leases, and manages residential rental properties throughout the United States, and all over the world. [BN] The Plaintiff is represented by: Matthew S. Parmet, Esq. PARMET PC Riverway, Ste. 1910 Houston, TX 77056 Telephone: (713) 999 5228 E-mail: matt@parmet.law HEALTHCOMPARE INSURANCE: Scheduling Order Entered in DeLong Suit ---------------------------------------------------------------- In the class action lawsuit captioned as Michael DeLong v. Healthcompare Insurance Services, Inc., Case No. 8:21-cv-01653-JLS-JDE (C.D. Cal.), the Court entered a scheduling order as follows: -- Last Day to File a Motion to Add July 1, 2022 Parties or Amend Pleadings: -- Last Day to File a Motion for Sept. 5, 2022 Class Certification: -- Last Day to File an Opposition Oct. 7, 2022 to Motion for Class Certification: -- Last Day to File a Reply to Motion Oct. 21, 2022 for Class Certification: -- Fact Discovery Cutoff: Jan. 20, 2023 -- Last Day to File Motions Feb. 3, 2023 (Excluding Daubert Motions and all other Motions in Limine): -- Last Day to Serve Initial Expert Feb. 3, 2023 Reports: -- Last Day to Serve Rebuttal Expert March 3, 2023 Reports: -- Expert Discovery Cutoff: March 24, 2023 -- Last Day to Conduct Settlement March 31, 2023 Proceedings: -- Last Day to File Motions in Limine Sept. 15, 2023 and Daubert Motions: -- Final Pretrial Conference Oct. 13, 2023 (10:30 a.m.): -- Preliminary Trial Estimate: 3-4 days HealthCompare Insurance offers health insurance plans online for individuals and families in the United States. A copy of the Court's order dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/3N9Gxdd at no extra charge.[CC] HEARTLAND RESOLUTION: Faces Coleman Suit Over Collection Letter --------------------------------------------------------------- KAYLEIGH COLEMAN, on behalf of herself and all others similarly situated v. HEARTLAND RESOLUTION GROUP, LLC, and PENDRICK CAPITAL PARTNERS, LLC, Case No. 145922511 (Fla. Cir., Pinellas Cty., March 17, 2022) alleges for damages under the Fair Debt Collection Practices Act and the Florida Consumer Collections Practices Act against the defendants. Heartland engages in the business of debt collection with a principal place of business in Fishers, Indiana. Heartland regularly collects or attempts to collect debts asserted to be owed to 21. Heartland is regularly engaged, for profit, in the collection of debts allegedly owed others. A letter, dated February 10, 2022, was received and read by Plaintiff. A third-party vendor prepared the letter, prewritten a template, printed, and mailed the letter to the Plaintiff at Heartland's direction, the lawsuit says. The Plaintiff did not provide her prior consent to the sharing of her information with the third-party letter vendor Heartland chose to convey information to regarding the alleged debt as part of its collection efforts. The Letter states, in the relevant part, "Call or write to us by March 22, 2022, to dispute all or part of the debt. If you do not, we will assume that our information is correct." The Letter provided Plaintiff a deadline of March 22, 2022 to dispute the alleged debt, request validation, and/or request the name and address of the original creditor.[BN] The Plaintiff is represented by: Jason Tenenbaum, Esq. TENENBAUM LAW GROUP, PLLC 1600 Ponce De Leon Blvd., 10th Floor Coral Gables, FL 33134 Telephone: (305) 402-9529 Facsimile: (786) 292-1948 HL WELDING: $858K Class Settlement in Yanez Suit Wins Final Nod --------------------------------------------------------------- In the case, LUIS LOPEZ YANEZ; KAYASONE MUONGKHOT; and JULIO RUBIO, on behalf of themselves and all others similarly situated, Plaintiffs v. HL WELDING, INC., Defendant, Case No. 20cv1789-MDD (S.D. Cal.), Magistrate Judge Mitchell D. Dembin grants the Plaintiffs' Motion for Final Approval of Class Action, FLSA Collective Action, and Private Attorneys' General Act Settlement, including their request for attorneys' fees, costs and expenses, and Class Representative Service Awards. I. Background On Sept. 11, 2021, Plaintiff Yanez initiated the action. On June 2, 2021, the Plaintiffs filed a First Amended Complaint ("FAC"), which is the operative complaint in the case. The FAC added claims on behalf of an expanded statewide class, a nationwide collective action, and penalties under PAGA. The Plaintiffs allege: (1) failure to pay overtime wages under California Labor Code Sections 510, 1194; (2) failure to furnish accurate wage statements under California Labor Code Sections 226, 226.3; (3) waiting time penalties under California Labor Code Sections 201-2032; (4) unfair competition under California Business and Professions Code Section 17200, et seq.; (5) civil penalties under PAGA, California Labor Code Section 2698, et seq.; and (6) failure to pay overtime wages under Fair Labor Standards Act, 29 U.S.C. Section 207 ("FLSA"). The gravamen of the Plaintiffs' complaint in this action and the Muongkhot Action is that the Defendant "has used a pay scheme to deprive Tradespeople of wages by paying a 'per diem' in addition to hourly wages, but not including the per diem rate in its calculation of overtime pay." As such, the Defendant has allegedly not paid overtime using the proper regular rate of pay as required by the FLSA and California law. Additionally, the Plaintiffs allege derivative claims that Defendant failed to provide accurate wage statements, "and that certain Tradespeople are due waiting time and PAGA penalties." The parties attended a mediation on March 24, 2021, with mediator Scott Markus. The mediation involved discussion of settlement of both this Action and the Muongkhot Action. The parties entered into a signed Memorandum of Understanding ("MOU") to settle all of the class and PAGA claims in both cases. Prior to mediation, Defendant HL Welding shared with the Plaintiffs' counsel detailed data regarding the class claims. HL Welding provided supplemental data to the Plaintiffs' counsel on June 2, 2021 that confirmed the relevant workweeks and pay periods that are the focus of the disputes, and which also confirmed when class members worked overtime hours that would be subject to additional compensation if the Plaintiffs prevailed on the merits. The parties spent the next two months negotiating the terms of the full settlement agreement presented in the instant motion, including the Settlement Notice to the class. The Plaintiffs seek preliminary approval of an $858,000 non-reversionary settlement with HL Welding to settle the California and federal overtime pay, and related claims on behalf of a class of Tradespeople ("Settlement Class Members"). In return for a release of all claims in the action, the Muongkhot Action, and any related claims arising from the same facts averred in the operative complaint, the Defendant agreed to create a non-reversionary $858,000 Gross Settlement Amount ("GSA"). The Defendant will separately pay the "employer's s are" of employment taxes (FICA, FUTA, SDI) on any payments classified as W-2 income or wages, over and above the GSA. The Settlement Class consists of: All current and former employees of HL Welding who were employed as Welders, Ship Fitters, Pipefitters, Sheet Metal workers, Electricians, Machinists, Riggers and Tackers at any time from Oct. 1, 2015 and June 30, 2021 and who have not signed arbitration agreement with class/collective action waiver with HL Welding and who fall within one of the following two subclasses: 1. California Subclass: All current and former employees of HL Welding who were employed as Welders, Ship Fitters, Pipefitters, Sheet Metal workers, Electricians, Machinists, Riggers and Tackers by Defendant in California at any time between Oct. 1, 2015 and June 30, 2021 (the "California Subclass Period") and who have not signed arbitration agreement with class/collective action waiver with HL Welding. 2. FLSA Subclass: All current and former employees of HL Welding who were employed as Welders, Ship Fitters, Pipefitters, Sheet Metal workers, Electricians, Machinists, Riggers and Tackers by Defendant in states other than California at any time between Sept. 15, 2017 and June 30, 2021 (the "FLSA Subclass Period") and who have not signed arbitration agreement with class/collective action waiver with HL Welding. There are 80 individuals in the Settlement Class. The Settlement Agreement provides for a non-reversionary $858,000 gross settlement fund. Attorneys' fees and costs, class representative service awards, PAGA penalties to the California LWDA and PAGA Recipients, and the Settlement Administrator's fees and costs will be deducted from the gross settlement fund before funds are distributed to Class Members. The remaining Net Settlement Fund of approximately $436,000 will be distributed to Class Members pro rata based on the number of weeks worked during the settlement class period. The disbursements will be made automatically to Class Members; they do not need to submit claims. Class Members can expect to receive approximately $226.97 per workweek. The average award will be $5,450 and the largest award will be over $19,500. The Settlement Agreement also provides for $100,000 of the settlement funds to be allocated to PAGA claims, with $75,000 payable to the LWDA and $25,000 to 477 "PAGA Recipients" in consideration of a narrow release that releases only relate to PAGA claims and preserves these employees' rights to bring claims in arbitration for alleged non-payment of overtime and other Labor Code violations. On Dec. 9, 2021, the Settlement Administrator mailed notice of the settlement to 557 Settlement Class Members and PAGA Recipient individuals who were on the class/PAGA list provided by HL Welding. 79 of the notice packets sent by first-class mail were returned as undeliverable. The Settlement Administrator was able to locate new addresses for 74 of those, and re-mail the notice. The Settlement Administrator set up a toll-free number for telephone support, as set forth in the Notice Packet. The deadline for Class Members to exclude themselves from the Settlement Class, and to file objections to the Settlement Agreement, was Jan. 24, 2022. No Class Member has opted out or objected. The Class Members submitted one timely challenge and one untimely challenge to the Settlement Administrator's estimates based on Defendant's records. The Settlement Administrator worked with the Defendant and the Plaintiffs' counsel to resolve these disputes, and both disputes were rejected. The Court held a hearing on March 15, 2022. No objectors appeared and the parties did not raise any new issues. II. Discussion The Plaintiffs' motion seeks final approval of a class action settlement, an FLSA collective action settlement, a PAGA settlement, attorneys' fees and costs, and class representative service awards. A. Class Action Settlement 1. Class Certification In the Preliminary Approval Order, the Court found the proposed Settlement Class proper and conditionally certified it for settlement purposes. There have been no changes with respect to factors the Court considered in preliminarily certifying the Settlement Class. Accordingly, Judge Dembin incorporates by reference the reasons set forth in its Preliminary Approval Order and reaffirms that the requirements of Federal Rule of Civil Procedure 23(a) and (b) have been satisfied. 2. Adequacy of Notice Having reviewed the Brunner Declaration, which provides that notice was disseminated to potential Settlement Class Members in the manner ordered by the Court in its Preliminary Approval Order, Judge Dembin finds that the Settlement Class received adequate notice of the Settlement. The Settlement Administrator further declares the settlement administration costs are $11,000. Judge Dembin approves the Settlement Administration costs in the amount of $11,000. 3. Fairness of the Settlement Judge Dembin must next determine whether the proposed settlement is "fair, reasonable, and adequate" pursuant to Federal Rule of Civil Procedure 23(e)(2)(C). Factors relevant to this determination include: The strength of the plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. Because the factors outlined favor approving the settlement, Judge Dembin grants the motion to finally approve the class action settlement and finds that the settlement is "fair, reasonable, and adequate" under Rule 23(e). B. FLSA Settlement Judge Dembin approves of the FLSA settlement. First, he finds that the Plaintiffs point to several disputed factual and legal questions regarding class certification, arbitration, liability on the overtime claims, and issues relating to damages. Each of these appears to be genuinely disputed. Second, the settlement is reasonable and provides meaningful relief given the risks inherent in continued litigation over the issues disputed in this action. Moreover, the scope of the Plaintiffs' release of claims is appropriately limited to claims that were asserted in the Complaint or reasonably could have arisen out of the same facts alleged in the Complaint. C. PAGA Claims Although the Settlement Agreement's $100,000 allocation to PAGA penalties amounts to roughly 22% of the maximum PAGA penalties, there have been no objections and Judge Dembin confirms the Court's preliminary approval that the settlement for the Rule 23 class and FLSA collective action is robust enough to fulfill PAGA's purposes. D. Class Representative Service Awards Plaintiffs Yanez, Rubio, and Muongkhot ask for class representative service awards of $5,000 each. The Plaintiffs have provided declarations detailing the activities engaged in to benefit the class, and the risks undertaken in placing their names on the complaint and in actively participating in assisting in the prosecution of the case. Having considered the relevant factors, the Plaintiffs' counsel's arguments, and the supporting declarations, Judge Dembin approves the class representative service awards as reasonable. E. Attorneys' Fees The Plaintiffs' counsel seeks $286,000 in attorneys' fees. This amounts to one-third of the gross settlement amount. In its Preliminary Approval Order, the Court found "no reason to award fees that exceed the Ninth Circuit's 25% benchmark" and instructed counsel to "show what special circumstances exist warranting a higher percentage in their motion for attorneys' fees and costs." Judge Dembin assesses the reasonableness of the requested fees and conducts a lodestar cross-check. Because the Class Counsel seeks one-third of the settlement fund, and because that amount is reasonable, and after conducting a lodestar cross-check, he finds the requested attorneys' fees are reasonable. Accordingly, he approves the requested amount of attorneys' fees in the amount of $286,000. F. Litigation Expenses The Class Counsel seeks reimbursement of their costs in the amount of $10,000. The Class Counsel's expenses include costs for filing, courier charges, mediation, in house copies, postage, legal research, pacer fees, PAGA filing fees, expert fees, CourtCall, and Vendor Copy Costs. Accordingly, Judge Dembin approves the Class Counsel's litigation expenses of $10,000. III. Conclusion Judge Dembin grants the Plaintiffs' Motion for Final Approval of Class Action, FLSA Collective Action, and Private Attorneys' General Act Settlement, including the Plaintiffs' request for attorneys' fees, costs and expenses, and Class Representative Service Awards. He finds the proposed settlement of the class action appropriate for final approval pursuant to Federal Rule of Civil Procedure 23(e), and the law governing FLSA and PAGA actions. He ordered the parties to implement the Settlement Agreement according to its terms and conditions and the Court's final order. Specifically, Judge Dembin settlement administration costs of $11,000, attorneys' fees of $286,000 to the Class Counsel, litigation costs of $10,000 to the Class Counsel, and $5,000 each to named Plaintiffs Luis Lopez Yanez, Kayasone Muongkhot, and Julio Rubio for class representative service awards. Accordingly, the action is dismissed with prejudice. The Clerk of Court is instructed to enter final judgment in accordance with the Order. A full-text copy of the Court's March 15, 2022 Order is available at https://tinyurl.com/2p9x8pmk from Leagle.com. HONEYWELL SAFETY: McKnight Seeks Collective Action Notice --------------------------------------------------------- In the class action lawsuit captioned as BARBARA MCKNIGHT and SHEILA ANDERSON, Individually and On Behalf of All Other Persons Similarly Situated, v. HONEYWELL SAFETY PRODUCTS USA, INC. AND HONEYWELL INTERNATIONAL, INC., DAVID M. COTE, CARL JOHNSON, and MARK R. JAMES, in their Official and Individual :Capacities, Case No. 1:16-cv-00132-MSM-PAS (D.R.I.), the Plaintiffs ask the Court to enter an order granting their motion to issue a corrective notice and consent to join the collective action and to continue the tolling period. Honeywell Safety designs and manufactures protection equipment. A copy of the Plaintiffs' motion dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/36pDjRC at no extra charge.[CC] The Plaintiffs are represented by: Louise A. Herman, Esq. HERMAN LAW GROUP 1445 Wampanoag Trail, Suite 104 E. Providence, RI 02915 Telephone: (401) 277-4110 Facsimile: (401) 433-0139 E-mail: lherman@lhermanlaw.com - and - Amato A. DeLuca, Esq. DeLUCA AND WEIZENBAUM, LTD. 199 North Main Street Providence, R.I. 02905 Telephone: (401) 354-7233 Facsimile: (401) 453-1501 (fax) E-mail: bud@delucaandweizenbaum.com HOPEN LIFE: Order Setting Scheduling Conference Entered in Winkler ------------------------------------------------------------------ In the class action lawsuit captioned as GEOFF WINKLER v. HOPEN LIFE SCIENCE VENTURES, et al., Case No. 2:21-cv-06049-FMO-AFM (C.D. Cal.), the Hon. Judge Fernando M. Olguin entered an order setting scheduling conference as follows: -- Counsel for the parties shall attend April 21, 2022 a scheduling conference on: -- Counsel for all appearing parties and March 31, 2022 all unrepresented appearing parties, if any, shall meet, in person, telephonically or via video conference, and discuss the matters set forth in Fed. R. Civ. P. 26(f) ("Rule 26(f)") no later than: -- Counsel for all appearing parties, and April 7, 2022 all unrepresented appearing parties, if any, shall file a Joint Rule 26(f) Report No later than: Hopen Life Science Ventures is a venture capital firm. A copy of the Court's order dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3CVk2DM at no extra charge.[CC] IDEANOMICS INC: S.D. New York Grants Bids to Toss Securities Suit ----------------------------------------------------------------- In the case, IN RE IDEANOMICS, INC. SECURITIES LITIGATION, Case No. 20 Civ. 4944 (GBD) (S.D.N.Y.), Judge George B. Daniels of the U.S. District Court for the Southern District of New York granted the Defendants' motions to dismiss. By two separate motions, the Defendants move to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP") and the Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. Section 78u-4(b). I. Background Lead Plaintiff Rene Aghajanian brings the action against Defendants Ideanomics, Alfred Poor, Conor McCarthy, Anthony Sklar, and Bruno Wu pursuant to Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5(b) promulgated thereunder, and Section 20(a). The Plaintiff brings the federal securities class action on behalf of all investors (the "Class") who purchased or otherwise acquired Ideanomics' common stock between March 16, 2020 and June 25, 2020, inclusive (the "Class Period"). Ideanomics is a global company focused on facilitating the adoption of commercial electronic vehicles ("EV") through its Mobile Energy Global ("MEG") division. Defendant Poor is Ideanomics' CEO and Interim Chairman of the Board of Directors. Defendant Wu, a Chinese media mogul and purported billionaire, is Ideanomics' Chairman of the Board of Directors. Defendant McCarthy is Ideanomics' CFO. Defendant Sklar is currently Senior Vice President of Communications and has served as Head of Investor Relations and Corporate Secretary. Ideanomics announced the MEG division on Aug. 26, 2019. The company stated that the "MEG business operates as an end-to-end solutions provider for the procurement, financing, charging and energy management needs for fleet operators of commercial Electronic Vehicles." The MEG Center would be in the City of Qingdao, China. However, by the end of 2019, Ideanomics reported a net loss of $97 million and the company began issuing debt convertible to securities. On Dec. 19, 2019, Ideanomics obtained $5 million in exchange for debt convertible to Ideanomics' common stock at $1.50 per share from offshore investment fund YA II PN, Ltd. ("YA II"), operated by Yorkville Advisors Global, LP. Further, on Jan. 10, 2020, the Listing Qualifications Staff of the NASDAQ Stock Exchange alerted Ideanomics that its common stock had traded below $1 for the past thirty consecutive trading days, that Ideanomics' common stock was at risk of being delisted, and that it had until July 8, 2020 to raise its per-share price to at least $1 for ten consecutive trading days. In April 2020, Ideanomics entered into an equity agreement with YA II where it sold newly issued shares to YA II at 90% of the stock's market price. Per the agreement, YA II did not need to purchase IDEX shares if the Ideanomics lost its NASDAQ listing. The Plaintiff alleges that, during the Class Period, the Defendants made numerous misstatements about the MEG center that artificially increased the stock price and eventually caused financial loss the Class. The alleged misstatements occurred during earnings calls, YouTube interviews with Defendants Poor, Wu, McCarthy, and Sklar (collectively, "Individual Defendants"), and press releases spanning the Class Period. The Plaintiff alleges that these statements are material misrepresentations. By two separate motions, the Defendants move to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the FRCP and the PSLRA, 15 U.S.C. Section 78u-4(b). II. Discussion The Plaintiff alleges that the Defendants' statements about the size of the MEG Center and its level of operation were false or misleading. Out of several alleged misstatements, the Plaintiff's counsel focused this Court on the following statements during oral argument: (1) the MEG Center "has been renovated as a permanent EV expo center"; (2) Ideanomics had "officially launched the largest auto trading market in Qingdao"; (3) the MEG Center "hosts a full suite of car dealer services" "with a capacity of 18,000 vehicles onsite"; (4) the MEG Center "is a one million square foot EV expo center" which had a "soft launch on May 1, 2020"; (5) the MEG Center had "high levels of activity at this early stage" and "solid customer foot traffic." The Plaintiff also alleges that Defendant Wu's statement that "we're actually opening up a hundred thousand sorry a -a million square feet" was misleading. Judge Daniels holds that (i) the J Capital report and Hindenberg tweets meet the PSLRA standard -- albeit slightly; (ii) the Defendants' statements made on May 26, May 28, June 9, And June 11 were not false; (iii) the Plaintiff has failed to allege scienter for all the Defendants because the Plaintiff's allegations for the other Individual Defendants are wholly insufficient; (iii) the Plaintiff has failed to adequately allege loss causation because the Plaintiff provides no explanation for the upward fluctuation just four days after the J Capital and Hindenberg publications; and (iv) absent a primary violation of the securities laws, the Plaintiff's claim for control person liability against the Individual Defendants also fails. III. Conclusion For these reasons, Judge Daniels granted the Defendants' motions to dismiss. The Clerk of Court is directed to close the motions accordingly. A full-text copy of the Court's March 15, 2022 Memorandum Decision & Order is available at https://tinyurl.com/4kvswzya from Leagle.com. INSPECTIONALERT.COM INC: Monzon Suit Seeks Damages Under FLSA, NYLL ------------------------------------------------------------------- FERMIN JULIO CIFUENTES MONZON, individually and on behalf of all others similarly situated v. INSPECTIONALERT.COM INC. d/b/a INSPECTION ALERT MANAGEMENT and ISRAEL RODITI as an individual, Case No. 2:22-cv-01476 (E.D.N.Y., March 17, 2022) seeks to recover damages for the Defendants' alleged violations of the Fair Labor Standard Acts and the New York Labor Law state and federal wage and hour laws arising out of Plaintiff's employment with the Defendants at INSPECTIONALERT.COM INC., located at 141 Main Street, East Rockaway, New York. As a result of the alleged violations of Federal and New York State, the Plaintiff seeks compensatory damages and liquidated damages in an amount exceeding $100,000.00. The Plaintiff also seeks interest, attorneys' fees, costs, and all other legal and equitable remedies this Court deems appropriate. The Plaintiff was employed as a construction worker and remodeler while also performing related miscellaneous duties for the Defendants, from in or around June 2014 until in or around February 2022. The Plaintiff brings this action on behalf of herself, and other employees similarly situated as authorized under the FLSA, 29 U.S.C. section 216(b). The employees similarly situated are hereafter, the "Collective Class." Collective Class: "All persons who are or have been employed by the Defendants as construction workers, remodelers or any other similarly titled personnel with substantially similar job requirements and pay provisions, who were performing the same sort of functions for Defendants, other than the executive and management positions, who have been subject to Defendants' common practices, policies, programs, procedures, protocols and plans including willfully failing and refusing to pay required overtime wages."[BN] The Plaintiff is represented by: HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 Facsimile: (718) 263-9598 INSPERITY INC: Building Trades' Complaint Dismissed With Prejudice ------------------------------------------------------------------ In the case, BUILDING TRADES PENSION FUND OF WESTERN PENNSYLVANIA, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. INSPERITY, INC., PAUL J. SARVARDI, and DOUGLAS S. SHARP, Defendants, Case No. 20 Civ. 5635 (NRB) (S.D.N.Y.), Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York granted the Defendants' motion to dismiss with prejudice. The Defendants moved to dismiss the Corrected Amended Complaint ("CAC") for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). I. Background Lead Plaintiff Oakland County Employees' Retirement System and Oakland County Voluntary Employees' Beneficiary Association Trust brings the class action lawsuit on behalf of all persons or entities who purchased common stock of Insperity between Feb. 11, 2019 and Feb. 11, 2020. The Plaintiff alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder against Insperity, its CEO, President, and Chairman, Paul J. Sarvadi, and its CFO, Treasurer, and Senior Vice President of Finance, Douglas S. Sharp. The Plaintiff challenges statements that Insperity, Sarvadi, and Sharp made on earnings calls and in press releases during that period. Broadly, these statements fall into five categories: (1) statements regarding whether Insperity employed sufficient BPAs to meet its growth targets, (2) statements regarding Insperity's insight into health care claims data; (3) statements regarding Insperity's sales and growth; (4) statements regarding whether there was a mismatch between Insperity's costs and pricing; and (5) statements regarding Insperity's purchase of stop-loss protection. Building Trades Pension Fund of Western Pennsylvania commenced the action on July 21, 2020. On Sept. 21, 2020, Wayne County Employees' Retirement System and Oklahoma Law Enforcement Retirement System filed a motion to be appointed lead plaintiffs. That same day, Oakland County Employees' Retirement System filed its own motion to be appointed lead plaintiff. On Oct. 5, 2020, Wayne County Employees' Retirement System and Oklahoma Law Enforcement Retirement System submitted a motion of non-opposition to Oakland County Employees' Retirement System's request to be appointed lead plaintiff, noting that they did not possess the largest financial interest in the relief sought by the class. On Oct. 23, 2020, the Court granted Oakland County Employees' Retirement System's motion and appointed it lead plaintiff. Oakland County Employees' Retirement System filed the CAC on Dec. 24, 2020. On April 26, 2021, the Defendants filed the instant motion to dismiss and memorandum of law in support thereof. On June 10, 2021, Oakland County Employees' Retirement System filed its opposition brief. The Defendants filed their reply on July 12, 2021. II. Discussion A. Plaintiff Fails to Allege False or Misleading Statements Judge Buchwald addresses each of the categories of statements that the Plaintiff relies on to claim securities fraud. After considering each category, she finds that the Plaintiff's complaint fails because it has failed to allege any false or misleading statements. First, the Plaintiff's complaint fails to allege a false or misleading statement regarding Insperity's BPAs because it cannot manufacture a securities fraud claim out of statements which are uncontradicted, are protected forward-looking statements under the PSLRA, or constitute opinions. Further, the Plaintiff cannot assert that the Defendants had a duty to disclose facts where no such duty exists and the facts in question were disclosed. Second, Judge Buchwald finds that Sarvadi's statement on the Feb. 11, 2019 call that Insperity was in "excellent shape" at the beginning of 2019 is puffery, and therefore not actionable. Likewise, Insperity's statement in its Feb. 11, 2019 press release that it was "well-positioned to continue our strong financial performance," is also puffery. As a result, these statements cannot be the basis for a securities fraud claim. Third, the Plaintiff has failed to identify a misleading statement concerning Insperity's sales and growth. There is no inconsistency in Insperity having strong sales in the first half of the year, such that it was ahead of the prior year, and then having a weaker second half of the year. Insperity was abundantly transparent in disclosing the impact of the "large enterprise account" referenced in the Nov. 4, 2019 call. Also, the Defendants' misguided optimism is not a sufficient basis for a securities claim and the statement is forward-looking. Fourth, Judge Buchwald holds that the Plaintiff fails to account for the fact that the Defendants did react to higher costs throughout the year. While the Defendants may have been mistaken about whether large claims would continue, it is not a securities fraud for the Defendants to have reasonably concluded that higher health care costs were anomalous. Furthermore, the Plaintiff has not pled that the statement that Insperity was "a little ahead" on renewals was false when made. There is no inconsistency with Insperity being ahead on renewals in November 2019, but ultimately being behind on renewals by February 2020, particularly when the bulk of the renewals typically occur in January or February. Again, the Plaintiff has failed to plead a false statement of fact or omission. Finally, the Plaintiff has failed to plead that the Defendants made false or misleading statements with regard to stop-loss protection. It does not show that the Defendants intentionally fostered a mistaken belief concerning a material fact that was incorporated into the report. Further, the Plaintiff does not allege that the Defendants "adopted or placed their imprimatur on the report." Thus, the statement is not attributable to the Defendants, and the Plaintiff has failed to allege a misstatement of a material fact. B. Scienter The Plaintiff's complaint does not survive the motion to dismiss for the separate and independent reason that it has failed to plead scienter. "The requisite scienter can be established by alleging facts to show either (1) that defendants had the motive and opportunity to commit fraud, or (2) strong circumstantial evidence of conscious misbehavior or recklessness." The Plaintiff has failed to allege scienter under either theory. First, Judge Buchwald finds that the Plaintiff does not even endeavor to allege that the sales were unusual or suspicious or begin to address the factors. Thus, it has failed to establish an inference of scienter under the motive and opportunity prong. Moreover, the fact that Insperity repurchased over $200 million of stock during 2019, including almost $50 million of stock in the fourth quarter of 2019, undercuts any inference of scienter. It would make no economic sense for Insperity to inflate its stock price, so that, in turn, it could buy its own stock back at a higher, inflated price in the fourth quarter of 2019. The Plaintiff has therefore not shown motive or opportunity. With respect to recklessness, Judge Buchwald holds that (i) the Plaintiff has not shown that the Defendants benefited from the alleged fraud; (ii) the Plaintiff does not make any specific allegation that any defendant engaged in deliberately illegal behavior; (iii) the Plaintiff does not point to any contradictory predictions, reports, or piece of information that the Defendants actually possessed that demonstrated their statements were false; (iv) the Plaintiff does not allege that the Defendants failed to check information that they had a duty to monitor. Therefore, the Plaintiff has failed to show an inference of scienter sufficient to survive a motion to dismiss. C. Section 20(a) Claim In order to state a claim of control person liability under Section 20(a), "a plaintiff must show (1) a primary violation by the controlled person, (2) control of the primary violator by the defendant, and (3) that the defendant was, in some meaningful sense, a culpable participant in the controlled person's fraud." As demonstrated in her Opinion, Judge Buchwald holds that the Plaintiff has failed to plead an underlying primary violation. Therefore, the Section 20(a) claim fails. III. Conclusion For the reasons she set forth, Judge Buchwald granted the Defendants' motion to dismiss and dismissed the complaint with prejudice. The Clerk of the Court is respectfully requested to close the case on the Court's docket. A full-text copy of the Court's March 15, 2022 Memorandum & Order is available at https://tinyurl.com/4hbs8b9c from Leagle.com. KADENCE INTERNATIONAL: Fails to Pay Overtime Pay, Brown Alleges --------------------------------------------------------------- CODY BROWN, individually and on behalf of all others similarly situated, Plaintiff v. KADENCE INTERNATIONAL, INC., Defendant, Case No. 2:22-cv-01097 (E.D., Pa., Mar. 22, 2022) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. Plaintiff Brown was employed by the Defendant as marketing helper and support assistant. KADENCE INTERNATIONAL, INC. is an international market research agency. The company's line of business includes providing various business services. [BN] The Plaintiff is represented by: Michael Murphy, Esq. Michael Groh, Esq. MURPHY LAW GROUP, LLC Eight Penn Center, Suite 2000 1628 John F. Kennedy Blvd. Philadelphia, PA 19103 Telephone: (267) 273-1054 Facsimile: (215) 525-021 Email: murphy@phillyemploymentlawyer.com mgroh@phillyemploymentlawyer.com KELLER WILLIAMS: Class Cert Bid Opposition Extended to April 4 -------------------------------------------------------------- In the class action lawsuit captioned as BRIAN HAYHURST, individually on behalf of all others similarly situated, v. KELLER WILLIAMS REALTY, INC., Case No. 1:19-CV-657 (M.D.N.C.), the Hon. Judge Joi Elizabeth Peake entered an order that the Motion for extension of time is granted and the time for defendant Keller Williams Realty, Inc. to file and serve its Response in Opposition to Plaintiff's Motion to for Class Certification is extended up to and including April 4, 2022. Keller Williams Realty is an American technology and international real estate franchise with headquarters in Austin, Texas. A copy of the Court's order dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3is3aep at no extra charge.[CC] KELLER WILLIAMS: Seeks More Time to File Class Cert Bid Response ---------------------------------------------------------------- In the class action lawsuit captioned as BRIAN HAYHURST, individually on behalf of all others similarly situated, v. KELLER WILLIAMS REALTY, INC., Case No. 1:19-cv-00657-NCT-JEP (M.D.N.C.), the Defendant asks the Court to enter an order extending the time to file and serve a Response in Opposition to Plaintiff's Motion for Class Certification in this action 14 days through and including April 4, 2022. The time for filing and serving a Response in Opposition to Plaintiff's Motion for Class Certification has not expired, and the current deadline is March 21, 2022. The movant needs additional time conduct Plaintiff's deposition, which is set for March 23, 2022, before filing and serving its Response in Opposition to Plaintiff's Motion for Class Certification. A copy of the Defendant's motion dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/3if129Z at no extra charge. Keller Williams Realty an American technology and international real estate franchise with headquarters in Austin, Texas. It claimed to be the largest real estate franchise in number of agents and sales volume for 2018 and 2019.[CC] The Plaintiff is represented by: Ted L. Johnson, Esq. TED LEWIS JOHNSON ATTORNEY AT LAW P.O. Box 5722 Greensboro NC 27435 E-mail: tedlewisjohnson@tedlewisjohnson.com - and - Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 201 S. Biscayne Blvd., 28th Floor Miami FL 33131 - and - Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26 th Street Miami FL 33127 The Defendant is represented by: Todd P. Stelter, Esq. John P. Ryan, Esq. HINSHAW & CULBERTSON 151 North Franklin Street, Suite 2500 Chicago, IL 60606 E-mail: tstelter@hinshawlaw.com jryan@hinshawlaw.com - and - Caren D. Enloe, Esq. SMITH DEBNAM NARRON DRAKE SAINTSING & MYERS LLP NC State Bar No. 17394 P.O. Box 176010 Raleigh, NC 27619-6010 Telephone: (919) 250-2000 Facsimile: (919) 250-2124 LORDSTOWN MOTORS: Delaware Court Refuses to Stay Stockholders Suit ------------------------------------------------------------------ The Court of Chancery of Delaware denied the Defendants' motion to stay the putative class action lawsuit titled In re Lordstown Motors Corp. Stockholders Litigation, Case No. 2021-1066-LWW (Del. Ch.). Vice Chancellor Lori W. Will informs the counsel that the Defendants have moved to stay the putative class action pending the resolution of a federal securities class action. She declines to grant a stay. The McWane doctrine applies with less force in the context of representative litigation and is particularly inapt here, she explains, citing McWane Cast Iron Pipe Corp. v. McDowell Wellman Engineering Corp. 263 A.2d 281 (Del. 1970). She adds that although the federal action is first-filed and concerns and the same business combination, the parties, claims, and remedy sought are different. Perhaps more importantly, the case raises emerging issues of Delaware law, Vice Chancellor Will notes. Established doctrines of fiduciary duty law are, of course, far from novel. But this Court has had occasion to apply these principles in the context of special purpose acquisition companies and stockholder redemption rights just once--in a decision rendered two months ago. This Court's essential role of providing guidance in developing areas of law would be impaired if the Court were to denude its jurisdiction because a federal securities action resting on similar facts was filed first, she points out. I. Relevant Background On Oct. 23, 2020, Lordstown Motors Corp. ("Legacy LMC") completed a business combination with special purpose acquisition company DiamondPeak Holding Corp. (collectovely, "Lordstown"). Disclosures issued in connection with the transaction indicated that Lordstown would have a first-mover advantage in the burgeoning electric truck market and that Lordstown had a large and growing backlog of truck orders. On March 12, 2021, an analyst report was published that purported to identify problems faced by Lordstown. A drop in Lordstown's stock price followed. Litigation followed, to say the least, Vice Chancellor Will notes. Starting in March 2021, multiple federal securities class actions were filed in the United States District Court for the Northern District of Ohio. The cases were consolidated in June 2021 (the "Securities Action"). The Defendants named in the Securities Action complaint are Lordstown, the Lordstown subsidiary that is the continuation of Legacy LMC, certain of Lordstown and Legacy LMC's current and former officers, and Lordstown director David Hamamoto. The complaint asserts various violations of the Securities Act of 1933 and Securities Exchange Act of 1934. The claims are brought on behalf of a putative class of persons and entities who "a purchased or otherwise acquired Lordstown's Class A Common Stock publicly traded warrants or any publicly traded option to purchase or sell Lordstown's Class A Common Stock, from Aug. 3, 2020, through July 2, 2021 and/or (b) held Lordstown's Class A Common Stock as of Sept. 21, 2020." Related derivative actions were also filed in the United States District Court for the District of Delaware, the Northern District of Ohio, and in this Court. The present action (the "Action") was brought after two Lordstown (previously DiamondPeak) stockholders obtained documents pursuant to 8 Del. C. Section 220. Their class action complaints were filed in this Court on Dec. 8 and Dec. 13, 2021, and have been consolidated. The Plaintiffs' claims are brought on behalf of a putative class of "all record and beneficial holders of DiamondPeak common stock who continuously held such stock between the transaction's Record Date of Sept. 21, 2020 and the closing of the de-SPAC Acquisition on Oct. 23, 2020." The Plaintiffs' Verified Class Action Complaint (the "Complaint) advances one claim against Hamamoto and four other former members of the DiamondPeak Board and another claim against the "Controller Defendants"--defined as Diamond Peak Sponsor LLC and two of the former directors. On Jan. 10 and 18, 2022, the Defendants filed one-page motions to dismiss pursuant to Court of Chancery Rules 12(b)(6) and 23.1. On Jan. 19, 2022, the Defendants filed a Motion to Stay this Action pending the resolution of the Securities Action. The Court heard argument on the Motion to Stay on Feb. 28, 2022. II. Legal Analysis The Defendants seek to stay the Action pending the resolution of the Securities Action, relying on McWane Cast Iron Pipe Corp. v. McDowell Wellman Engineering Corp. and its progeny. Under the McWane doctrine, the court's discretion to grant a stay should be freely exercised where "there is a prior action pending elsewhere, in a court capable of doing prompt and complete justice, involving the same parties and the same issues, Vice Chancellor Will opines. These concepts are impelled by considerations of comity and the necessities of an orderly and efficient administration of justice. The Defendants contend that allowing the Action to proceed in parallel with the Securities Action would tax the resources of the court and the parties. They further assert that the Plaintiffs here seek to represent a subset of the stockholder class represented in the Securities Action and that the breach of fiduciary duty claims in this Action are premised upon the same statements alleged to be misleading in the Securities Action. In response, the Plaintiffs note that the claims in this Action involve novel issues of Delaware law that are not implicated in the Securities Action. They further argue that, regardless, none of the McWane factors support staying the Action. Vice Chancellor Will explains that a McWane analysis is an imperfect method to guide her assessment of the Defendants' motion. In the representative litigation setting, the Court's "paramount interest" is to ensure that "stockholders receive 'fair and consistent enforcement of their rights under the law governing the corporation,'" citing Brandin v. Deason, 941 A.2d 1020, 1024 (Del. Ch. 2007) (quoting In re Topps Co. S'holders Litig., 924 A.2d 951, 953 (Del. Ch. 2007)). Here, the fundamental question is whether the Court's interest in resolving corporate governance issues under Delaware law prevails over considerations of comity and practicality. This Action concerns allegations that the Defendants breached their fiduciary duties of loyalty and impaired the exercise of stockholders' redemption rights in the context of a de-SPAC transaction. Vice Chancellor Will explains that those claims raise "novel issues" akin to those that this court was presented with in a matter of first impression earlier this year. The Court of Chancery has "long been chary" about deferring to a first-filed action pending elsewhere "when a case involves important questions of our law in an emerging area" (In re Topps, 924 A.2d at 960). Vice Chancellor Will finds that none of the remaining factors appropriately considered under McWane outweigh that vital interest. She opines that the parties in this Action and the Securities Action differ significantly. Although these actions have facts in common, the issues presented are distinct. And the claims brought here are not a simple repackaging of securities claims with a Delaware law label. To start, Vice Chancellor Will explains, the Securities Action names only one of the Action's Defendants. The Defendants point to the overlap in Defendants here and in the related derivative actions (though they do not seek a stay in deference to those cases) to support their position that this Action should not move forward. But--insofar as the derivative actions are even relevant to whether a stay in deference to the Securities Action is appropriate--those cases seek to recover on behalf of Lordstown while this action is brought on behalf of a putative class of former DiamondPeak stockholders. Vice Chancellor Will points out that it is not apparent to her why the Court would stand down from hearing class action claims in deference to derivative actions that might themselves defer to prior-filed securities claims. The putative class in the Securities Action is also not equivalent to the class the Plaintiffs seek to represent in this Action, Vice Chancellor Will finds. Members of the stockholder class in this Action also fall within the Securities Action class (which is not unusual in parallel actions). But, as the Plaintiffs point out, any recovery for the earlier investors included in the Securities Action class--who are the focus of this Action--could be affected by the breadth of that class period. The issues in the actions coincide insofar as the disclosures in DiamondPeak's proxy statement require examination, Vice Chancellor Will notes. They are otherwise fundamentally different. The crux of the Securities Action rests on whether Lordstown's stock price was "artificially inflated" by false and misleading disclosures. The Plaintiffs' Complaint, by contrast, alleges that the Defendants harmed the putative class members by impairing the informed exercise of their redemption rights to the Defendants' benefit. These are quintessential Delaware concerns--not, as the Defendants argue, a rebranding of securities claims about material misstatements as fiduciary duty claims. That reality renders the cases relied upon by the Defendants inapposite, Vice Chancellor Will holds. She explains that in Derdiger v. Tallman 773 A.2d 1005, 1010 (Del. Ch. 2000) a lead plaintiff in a consolidated federal securities action was appointed to "pursue all available causes of action against all possible defendants under all available legal theories." Vice Chancellor Will also finds, among other things, that the distinction between the federal claims pleaded in the Securities Action and the Plaintiffs' Delaware law fiduciary duty claims is not an "artificial" one. Without considering the viability of the Plaintiffs' claims, even a superficial review of the Complaint makes plain that the Plaintiffs are pursuing more than a narrow disclosure claim. The claims advanced invoke both the duty of loyalty and disclosure duties implicating director loyalty. They are not redundant or duplicative of the first-filed securities claims. The gap between the claims here and those in the Securities Action widens when the potential remedies are considered, Vice Chancellor Will holds. The Securities Action seeks to recover damages for losses allegedly caused by the decline in Lordstown's stock price from a class period high of $31.57. The Plaintiffs' attempted recovery in this Action, by contrast, could turn on the $10 redemption price (plus interest) relative to the value the class received in the de-SPAC transaction. III. Conclusion Delaware has a substantial interest in addressing the issues presented by the case, Vice Chancellor Will notes. And there is limited overlap--in terms of the parties, issues, and potential remedies--between this Action and the Securities Action. Hence, the Defendants' Motion to Stay is denied. A full-text copy of the Court's Decision dated March 7, 2022, is available at https://tinyurl.com/2nst5t2z from Leagle.com. Raymond J. DiCamillo -- dicamillo@rlf.com -- Kevin M. Gallagher -- gallagher@rlf.com -- Alexander M. Krischik -- krischik@rlf.com -- Alena V. Smith -- asmith@rlf.com -- Richards, Layton & Finger P.A., 920 North King Street, in Wilmington, Delaware 19801. Gregory V. Varallo -- Greg.Varallo@blbglaw.com -- Daniel E. Meyer -- Daniel.Meyer@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, 500 Delaware Avenue, Suite 901, in Wilmington, Delaware 19801. MAD FISH SC: Fails to Pay Proper Wages, Craven Suit Alleges ----------------------------------------------------------- DONALD NICHOLAS CRAVEN, individually and on behalf of all others similarly situated, Plaintiff v. MAD FISH SC, LLC, Defendant, Case No. 2:22-cv-00935-RMG (D.S.C., Mar. 21, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiff was employed by the Defendant as delivery driver. MAD FISH SC, LLC owns and operates Mad Fish Sushi and Hibachi Grill in Summerville. [BN] The Plaintiff is represented by: Jacob J Modla, Esq. THE LAW OFFICES OF JASON E. TAYLOR, P.C. 115 Elk Avenue Rock Hill, SC 29730 Telephone: (803) 328-0898 E-mail: jmodla@jasonetaylor.com - and - Sean Short, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AK 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: sean@sanfordlawfirm.com josh@sanfordlawfirm.com MAGNA INTERNATIONAL: Davis, Dakota Seek Class Certification ----------------------------------------------------------- In the class action lawsuit captioned as MELVIN DAVIS and DAKOTA KING, individually and on behalf of all others similarly situated, v. MAGNA INTERNATIONAL OF AMERICA, INC., et al., Case No. 2:20-cv-11060-NGE-RSW (E.D. Mich.), the Plaintiffs ask the Court to enter an order: 1. certifying this action as a class action on behalf of: "All persons, except Defendants and their immediate family members, who were participants in or beneficiaries of the Plan, at any time between April 30, 2014 through the date of judgment (the Class Period);" 2. appointing them as representatives of the proposed class; and 3. appointing the their counsel as counsel for the Class The Plaintiffs allege claims under The Employee Retirement Income Security Act of 1974 ( ERISA) section 502(a)(2) for breaches of fiduciary duty. Magna is the Plan sponsor and a named fiduciary of the Plan. A copy of the Plaintiffs' motion to certify class dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/34Ny5yK at no extra charge.[CC] The Plaintiffs are represented by: 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 MAISON DE'VILLE NURSING: Class Cert Bid Filing Extended to March 28 ------------------------------------------------------------------- In the class action lawsuit captioned as JANICE VERDIN, CATHERINE NAQUIN, MARY HELMER, OLIVIA HELMER, LAUREN HELMER, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, v. BOB DEAN, JR., MAISON DE'VILLE NURSING HOME OF HARVEY, L.L.C., ST. ELIZABETH'S CARING, L.L.C., RACELAND MANOR NURSING HOME, INC., MAISON DE'VILLE NURSING HOME, INC., RIVER PALMS NURSING & REHAB, L.L.C., UPTOWN HEALTHCARE CENTER, L.L.C., BOB DEAN ENTERPRISES, INC., and LOUISIANA HEALTHCARE CONSULTANTS, L.L.C., Case No. 2:21-cv-01976-JCZ-DMD (E.D. La.), the Hon. Judge Jay C. Zainey entered an order granting the unopposed Motion to extend deadline for the Plaintiffs seeking preliminary certification as a collective action. The Plaintiffs are given an additional 30 days, or until March 28, 2022, to file their motion for class certification. A copy of the Court's order dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/3Jl0ifq at no extra charge.[CC] MAMMOTH TECH: Leininger Alleges WARN Act Violation Over Mass Layoff ------------------------------------------------------------------- THERESA LEININGER, on behalf of herself and all others similarly situated, Plaintiff v. MAMMOTH TECH, INC., Defendant, Case No. 3:22-cv-00394-JZ (N.D. Ohio, March 11, 2022) is a civil action brought by the Plaintiff for collection of unpaid wages and benefits for 60 calendar days pursuant to the Worker Adjustment and Retraining Notification Act. The Plaintiff was an employee of the Defendant until she was allegedly terminated as part of, or as a result of a mass layoff and/or plant closing ordered by the Defendant. As such, Defendant is liable under the WARN Act for the failure to provide Plaintiff and the other similarly situated former employees at least 60 days' advance written notice of termination, as required by the WARN Act, says the suit. Mammoth Tech, Inc. is an outsourcing solutions provider.[BN] The Plaintiff is represented by: Jeffrey C. Miller, Esq. BRENNAN, MANNA & DIAMOND, LLC 200 Public Square, Suite 3270 Cleveland, OH 44114 Telephone: (216) 658-2323 Facsimile: (216) 658-2156 E-mail: jcmiller@bmdllc.com - and - Stuart J. Miller, Esq. LANKENAU & MILLER, LLP 100 Church Street, 8th Fl New York, NY 10007 Telephone: (212) 581-5005 Facsimile: (212) 581-2122 - and - Mary E. Olsen, Esq. M. Vance McCrary, Esq. THE GARDNER FIRM, PC 210 S. Washington Ave. Mobile, AL 36602 Telephone: (251) 433-8100 Facsimile: (251) 433-8181 MARZ & ASSOCIATES: Underpays General Laborers, Krueger Suit Says ---------------------------------------------------------------- NATHAN KRUEGER, on behalf of himself and all others similarly situated, Plaintiff v. MARZ & ASSOCIATES, LLC and ZACHARY ZIRBEL, Defendants, Case No. 22-cv-313 (E.D. Wis., March 11, 2022) is a collective action brought pursuant to the Fair Labor Standards with individual claims and causes of action under Wisconsin's Wage Payment and Collection Laws by the Plaintiff for unpaid overtime compensation, unpaid straight time (regular) and/or agreed upon wages, liquidated damages, costs, attorneys' fees, declaratory, and injunctive relief. The Plaintiff was hired by the Defendants as an hourly-paid, non-exempt employee in the position of general laborer in September 2021 until February 2022. Marz & Associates is a construction company with principal place of business in Shawano, Wisconsin.[BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Telephone: (262) 780-1953 Facsimile: (262) 565-6469 E-mail: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com META PLATFORMS: N.D. California Grants in Part Klein's Bids to Seal ------------------------------------------------------------------- In the case, MAXIMILIAN KLEIN, et al., Plaintiffs v. META PLATFORMS, INC., Defendant, Case No. 20-cv-08570-JD (VKD) (N.D. Cal.), Magistrate Judge Virginia K. DeMarchi of the U.S. District Court for the Northern District of California, San Jose Division, granted in part and denied in part the Plaintiffs' motions to seal. The Plaintiffs move to seal portions of their brief and Exhibits B-E, L and J to the Declaration of Brian Dunne submitted in connection with a pending discovery dispute over an Aug. 20, 2021 clawback notice regarding several email communications produced in discovery by Defendant Meta. The Plaintiffs request sealing on the ground that Meta has designated most of the subject information (other than Exhibit J) as "Confidential" or "Highly Confidential" under the parties' stipulated protective order. They request sealing for Exhibit J only in "an abundance of caution," and they take no position on whether that information appropriately should be sealed. Meta responds to the Plaintiffs' motion to seal by requesting sealing for only a subset of information identified in the Plaintiffs' briefs and exhibits. Specifically, Meta requests sealing only as to the names, initials, email addresses and telephone numbers of its current and former employees identified in those documents. Meta also separately moves to seal the same information contained in its opposition brief, the declaration of Michael Kirkland, and Exhibit 1 to the declaration of Molly Jennings submitted in connection with the pending discovery dispute. It agrees that the current and former employees' roles and job titles at the company at the time of the communications may be relevant, and Meta does not ask that such information be sealed. Additionally, Meta does not request that any portion of Exhibit J to Mr. Dunne's declaration be sealed. Nor does Meta contend that any other contents of the subject documents be sealed. Judge DeMarchi holds that the "good cause" standard applies to the present motions to seal, which pertain to a discovery dispute over Meta's assertions of the attorney-client privilege over the subject email communications. Meta does not deny that the individuals in question have "information and involvement in this particular matter." Nor does Meta contend that its current and former employees' names reveal confidential information. Rather, it argues that these individuals' names and contact information should be sealed "given the current media attention to Meta" and the possibility that these individuals "may receive unsolicited emails and phone calls from the press or members of the general public, which could rise to the level of threats or harassment." Meta further states that any such harassment, if it were to occur, "could result in decreased morale, decreased productivity, and increased expenses." Judge DeMarchi therefore finds that the public's interest in access to that information is outweighed by the risk of possible harassment to the individuals in question. Accordingly, Meta's motion to seal its current and former employees' names, initials, and contact information is granted to protect these employees' privacy interests. The Plaintiffs' motion to seal is granted only to the same extent that Meta's motion to seal has been granted; the Plaintiffs' motion to seal is otherwise denied. Within seven days from the date of the Order, the parties will file revised redacted versions of their respective briefs and exhibits in compliance with the rulings. The Order does not preclude a subsequent order that the subject information properly should be part of the public record as the case progresses. A full-text copy of the Court's March 11, 2022 Order is available at https://tinyurl.com/mryn7srp from Leagle.com. META PLATFORMS: Seeks Summary Judgment in DZ Reserve Class Suit --------------------------------------------------------------- In the class action lawsuit captioned as DZ RESERVE and CAIN MAXWELL (d/b/a MAX MARTIALIS), individually and on behalf of all others similarly situated, v. META PLATFORMS, INC., Case No. 3:18-cv-04978-JD (N.D. Cal. ), the Defendant asks the Court to enter an order for summary judgment on Plaintiffs' remaining claims in the Third Amended Complaint (TAC) pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court previously dismissed the Plaintiffs' breach of contract, implied covenant of good faith and fair dealing, and quasi-contract claims, and limited Plaintiffs' fraud claims to events post-dating August 15, 2015. Dkts. 9 130, 255. Court also granted in part Meta's motion for judgment on the pleadings, holding that Plaintiffs cannot proceed on their claim for restitution under California's Unfair Competition Law ("UCL") and denying leave to amend. Meta Platforms is an American multinational technology conglomerate based in Menlo Park, California. The company is the parent organization of Facebook, Instagram, and WhatsApp, among other subsidiaries. A copy of the Defendant's motion dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3ufbwvp at no extra charge.[CC] The Defendant is represented by: Elizabeth L. Deeley, Esq. Melanie M. Blunschi, Esq. Nicole C. Valco, Esq. LATHAM & WATKINS LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111-6538 Telephone: (415) 391-0600 E-mail: elizabeth.deeley@lw.com melanie.blunschi@lw.com nicole.valco@lw.com - and - Andrew B. Clubok, Esq. Susan E. Engel, Esq. 555 Eleventh Street, N.W., Suite 1000 Washington, D.C. 20004-1304 Telephone: (202) 637-2200 E-mail: andrew.clubok@lw.com susan.engel@lw.com METROPOLITAN LIFE: McAlister, et al., Seek to Certify Class ----------------------------------------------------------- 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 them Lee S. Kernan, Joan S. Brownell, and Emily Ross to serve as class representatives; 3. Appointing Izard, Kindall & Raabe, LLP and Bailey & Glasser LLP as co-lead counsel for the Class; and 4. For such other and further relief as may be just and proper. MetLife is the holding corporation for the Metropolitan Life Insurance Company, better known as MetLife, and its affiliates. MetLife is among the largest global providers of insurance, annuities, and employee benefit programs, with 90 million customers in over 60 countries. A copy of the Plaintiffs' motion to certify class dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/3KUVqOz 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 E-mail: gporter@baileyglasser.com mboyko@baileyglasser.com MG DELI GROCERY: Fails to Pay Proper Overtime Pay, Castillo Says ---------------------------------------------------------------- RADHAMES CASTILLO, individually and on behalf of all others similarly situated, Plaintiff v. MG DELI GROCERY, CORP. (d/b/a R & C DELI GROCERY); R & C DELI GROCERY, INC. (d/b/a R & C DELI GROCERY); and JOSE R. CORNIEL, Defendants, Case No. 1:22-cv-02281 (S.D.N.Y., Mar. 21, 2022) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. Plaintiff Castillo was employed by the Defendants as general assistant and delivery worker. R & C Deli Grocery, Inc. (d/b/a R & C Deli Grocery) owns and operates a deli, located at Bronx, New York, under the name "R & C Deli Grocery." [BN] The Plaintiff is represented by: Catalina Sojo, Esq. CSM LEGAL, P.C 60 East 42nd Street, Suite 4510 New York, N.Y. 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 MICHIGAN STATE: Norris Appeals Order in Suit Over Mandatory Vaccine ------------------------------------------------------------------- Plaintiffs Jeanna Norris, et al., filed an appeal from a court ruling entered in the lawsuit entitled Jeanna Norris, on behalf of herself and all others similarly situated v. Samuel L. Stanley, Jr., in his official capacity as President of Michigan State University; Dianne Byrum in her official capacity as Chair of the Board of Trustees; Dan Kelly, in his official capacity as Vice Chair of the Board of Trustees; Renee Jefferson, Pat O'Keefe, Brianna T. Scott, Kelly Tebay, Rema Vassar, in their official capacities as Members of the Board of the Trustees of Michigan State University; Unknown Part(y)(ies), named as John and Jane Does 1-10; Case No. 1:21-cv-00756-PLM-SJB, in the U.S. District Court for the Western District of Michigan at Grand Rapids. According to the complaint, Michigan State University announced "COVID directives" for the Fall 2021 semester by email and on its website on July 30, and then provided an expanded version via its website on August 5, 2021. The directives include a "Mandatory COVID-19 Vaccine." The Directive states that, all faculty, staff, and students must either be fully vaccinated or have received one of a two-dose series by August 31, 2021, unless they obtain a religious or medical exemption, both of which are limited in nature and application. The Directive specifically excludes natural immunity as a basis for a medical exemption. Even employees who work remotely are subject to the Directive. The Plaintiff filed this suit on August 27, 2021, on behalf of a class of similarly situated individuals, employees of MSU who have naturally acquired immunity to COVID-19 and for whom the Directive represents a violation of their constitutional rights to bodily autonomy and to decline medical treatment. Allegedly, the Directive violates both the constitutional and federal statutory rights of Plaintiff and those who are similarly situated because it undermines their bodily integrity and autonomy and conditions their employment on their willingness to take a medically unnecessary vaccine. Forcing Plaintiff and others to take this vaccine will provide no discernible, let alone compelling, benefit either to Plaintiff or to the MSU community. Although obtaining the vaccine could raise Plaintiff's antibody levels even higher, her levels are already high enough to be equivalent to most vaccinated people, so any augmented benefit is negligible. The unconstitutional conditions doctrine exists precisely to prevent government actors from clothing unconstitutional objectives and policies in the garb of supposed voluntarism when those actors fully intend and expect that the pressure they are exerting will lead to the targets of such disguised regulation succumbing to the government's will. The Plaintiff invokes this Court's Article III and inherent powers to insulate her from this pressure and to vindicate her constitutional and statutory rights, says the suit. On November 19, 2021, the Defendants filed a motion to dismiss Plaintiffs' amended complaint. The Plaintiffs now seek a review of the Court's Order dated January 21, 2022 and Judgment dated February 22, 2022, granting in part Defendants' motion to dismiss. The appellate case is captioned as Jeanna Norris, et al. v. Samuel Stanley, Jr., et al., Case No. 22-1200, in the United States Court of Appeals for the Sixth Circuit, filed on March 14, 2022.[BN] Plaintiffs-Appellants JEANNA NORRIS, on behalf of herself and all other similarly situated; KRAIG EHM; and D'ANN ROHRER, are represented by: Jenin Younes, Esq. NEW CIVIL LIBERTIES ALLIANCE 1225 19th Street, N.W., Suite 450 Washington, DC 20036 Telephone: (202) 918-6905 Defendants-Appellees SAMUEL L. STANLEY, JR., in his official capacity as President of Michigan State University; DIANNE BYRUM, in her official capacity as Chair of the Board of Trustees; DAN KELLY, in his official capacity as Vice Chair of the Board of Trustees; RENEE JEFFERSON, in their official capacities as Members of the Board of the Trustees of Michigan State University; PAT O'KEEFE, in their official capacities as Members of the Board of the Trustees of Michigan State University; BRIANNA T. SCOTT, in their official capacities as Members of the Board of the Trustees of Michigan State University; KELLY TEBAY, in their official capacities as Members of the Board of the Trustees of Michigan State University; REMA VASSAR, in their official capacities as Members of the Board of the Trustees of Michigan State University; and UNKNOWN PART(Y)(IES), named as John and Jane Does 1-10, are represented by: Uriel Abt, Esq. OFFICE OF GENERAL COUNSEL 426 Auditorium Road, Room 407 East Lansing, MI 48824 Telephone: (517) 353-4934 E-mail: abturiel@msu.edu - and - Stephanie L. Gutwein, Esq. Anne Ricchiuto, Esq. FAEGRE DRINKER BIDDLE & REATH 300 N. Meridian Street, Suite 2500 Indianapolis, IN 46204 Telephone: (317) 237-0300 E-mail: stephanie.gutwein@faegredrinker.com anne.ricchiuto@faegredrinker.com MILLIMAN INC: Healy FCRA Suit Seeks to Certify Three Classes ------------------------------------------------------------ In the class action lawsuit captioned as JAMES HEALY, on behalf of himself and all others similarly situated, v. MILLIMAN, INC., d/b/a INTELLISCRIPT, Case No. e 2:20-cv-01473-JCC (W.D. Wash.), the Plaintiff asks the Court to enter an order: 1. certifying the proposed classes; 2. appointing Mr. Healy to serve as class representative; 3. appointing Francis Mailman Soumilas, PC and Terrell Marshall Law Group PLLC to serve as class counsel; and 4. directing that notice be sent to the classes as soon as practicable. This is a consumer class action based upon Milliman, Inc.'s systemic and comprehensive non-compliance with the Fair Credit Reporting Act ("FCRA") pertaining to its sale of "Intelliscript" reports to life insurers nationwide. James Healy's life insurance application was denied because Milliman sold his prospective insurer, Americo, a report that contained serious medical history and prescription data about another consumer. Contrary to Milliman's report, Mr. Healy had a clean bill of health. The error was easily preventable as the records Milliman sold demonstrated a person with a different social security number, last name, and zip code. Any quick review of the data 10 would have revealed the gross error. Through discovery, Plaintiff learned that this was no accident or outlier situation. As Milliman's Director of Strategic Operations Angela Bolduc honestly testified, in Mr. Healy's case, Milliman's matching logic worked "as planned." Mr. Healy respectfully requests that the Court certify three classes of consumers, including: (1) an inaccuracy class consisting of individuals for whom Milliman sold a report 20 containing data belonging to a different person; (2) a file disclosure class consisting of all individuals who requested a copy of their Milliman reports; and (3) a reinvestigation class consisting of every person who "disputed" the accuracy of their Milliman reports. As described in the following, all of the elements of Federal Rule Civil Procedure 23(a) and (b) are satisfied. Milliman sells reports containing health care information to life insurers. Milliman is an "independent risk management, benefits and technology firm. A copy of the Plaintiff's motion to certify class dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3ueXrOP at no extra charge.[CC] The Plaintiff is represented by: Jennifer Rust Murray, Esq. Beth E. Terrell, Esq. Adrienne D. McEntee, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 E-mail: bterrell@terrellmarshall.com jmurray@terrellmarshall.com amcentee@terrellmarshall.com - and - James A. Francis, Esq. John Soumilas, Esq. Lauren KW Brennan, Esq. FRANCIS MAILMAN SOUMILAS, P.C. 1600 Market Street, Suite 2510 Philadelphia, PA 19103 Telephone: (215) 735-8600 Facsimile: (215) 940-8000 E-mail: jfrancis@consumerlawfirm.com jsoumilas@consumerlawfirm.com lbrennan@consumerlawfirm.com MOLINA HEALTHCARE: Breaches Fiduciary Duties, Mills ERISA Suit Says ------------------------------------------------------------------- MICHELLE MILLS, COY SARELL, CHAD WESTOVER, BRENT ALESHIRE, BARBARA KERSHNER, PAULA SCHAUB, and JENNIFER SILVA, individually and as representatives of a class participants and beneficiaries on behalf of the Molina Salary Savings Plan v. MOLINA HEALTHCARE, INC., and JOHN DOES 1–10, Case No. 2:22-cv-01813 (C.D. Cal., March 18, 2022) is a class action brought by the Plaintiffs, individually and as representatives of a class of participants and beneficiaries of the Molina Salary Savings Plan, on behalf of the Plan against the Defendants for breach of fiduciary duties under the Employee Retirement Income Security Act of 1974. As Plan fiduciaries, the Defendants are obligated to act for the exclusive benefit of Plan participants and beneficiaries and to ensure that Plan expenses are reasonable and Plan investments are prudent. These duties are the "highest known to the law" and must be discharged with "an eye single to the interests of the participants and beneficiaries." Instead of acting in the exclusive best interest of participants, the Defendants allegedly caused the Plan to invest in flexPATH's untested target date funds, 10 replaced established and well-performing target date funds used by participants to meet their retirement needs. Defendants also failed to use the Plan's bargaining power to obtain reasonable investment management fees, which caused unreasonable expenses to be charged to the Plan. To remedy these breaches of duty, Plaintiffs, individually and as representatives of a class of participants and beneficiaries of the Plan, bring this action on behalf of the Plan under 29 U.S.C. section 1132(a)(2) and (a)(3) to enforce the Defendants' personal liability under 29 U.S.C. section 1109(a) to make good to the Plan all losses resulting from each breach of fiduciary duty and to restore to the Plan profits made through Defendants' use of Plan assets. In addition, the Plaintiffs seek equitable or remedial relief for the Plan as the Court may deem appropriate, the lawsuit says. Each participant in a defined contribution plan has an individual account and directs plan contributions into one or more investment alternatives in a lineup chosen by the plan's fiduciaries. The plan's fiduciaries have control over these expenses. The fiduciaries are responsible for hiring administrative service providers and negotiating and approving their compensation. The fiduciaries also have exclusive control over the menu of investment alternatives to which participants may direct the assets in their accounts, the lawsuit adds. Molina Healthcare is a managed care company headquartered in Long Beach, California, United States. The company provides health insurance to individuals through government programs such as Medicaid and Medicare.[BN] The Plaintiffs are represented by: Jerome J. Schlichter, Esq. SCHLICHTER BOGARD & DENTON LLP 100 South Fourth Street, Suite 1200 St. Louis, MO 63102 Telephone: (314) 621-6115 Facsimile: (314) 621-5934 E-mail: jschlichter@uselaws.com - and - William H. Edmonson, Esq. LAW OFFICE OF WILL EDMONSON 9157 Sunset Boulevard, Suite 213 West Hollywood, CA 90069 Telephone: (424) 248-9581 E-mail: will@whelawfirm.com NAGLE & ASSOCIATES: NMFIC Summary Judgment Bid Partly Granted ------------------------------------------------------------- In the class action lawsuit captioned as NATIONWIDE MUTUAL FIRE INSURANCE COMPANY v. NAGLE & ASSOCIATES, P.A. and CARL B. NAGLE, Case No. 3:20-cv-00578-FDW-DSC (W.D.N.C.), the Hon. Judge Frank Whitney entered an order that the Plaintiff's motion for summary judgment is granted in part and dismissed in part: -- The Plaintiff's motion is granted to the extent it seeks a declaration regarding the duty to defend under the Policies. The Plaintiff's Motion is otherwise Dismissed, in that Plaintiff's claim for a declaration regarding its duty to indemnify is hereby dismissed without prejudice. -- The Defendants' Motion for Summary Judgment, is denied. The Parties' Joint Motion to Continue Docket Call/Trial, is, therefore, denied as moot. The Court hereby declares that the Plaintiff does not owe a duty to defend Defendants in connection with the Hatch suit. A copy of the Court's order dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/3ieLW4h at no extra charge.[CC] NEW YORK, NY: Class Certification Sought in N.G. Suit ----------------------------------------------------- In the class action lawsuit captioned as N.G., by F.E, Z.M. by C.M., and all others similarly situated, v. New York City Department of Education, David C. Banks, in his representative and official capacity as Chancellor of the New York City Department of Education, the New York State Education Department, and Betty Rosa, in her representative and official capacity as Commissioner of Education of the State of New York, Case No. 1:14-cv-06529-RML (E.D.N.Y.), the Plaintiffs ask the Court to enter an order: (a) certifying the Class as the parties have defined and requested; (b) approving the proposed form and substance of notice to the Class and directing the manner of dissemination; (c) preliminarily approving the parties' proposed settlement agreement; (d) appointing and approving the law firm of Mayerson & Associates as counsel to the Class; (e) approving the named plaintiffs as Class representatives; (f) approving a proposed scheduling order setting forth, inter alia, date of the Fairness Hearing and the process to lodge and address any objections; and (g) granting plaintiffs such other, different and further relief as the Court may deem proper. A copy of the Plaintiffs' motion to certify class dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3IppXCc at no extra charge.[CC] The Plaintiffs are represented by: Gary S. Mayerson, Esq. MAYERSON & ASSOCIATES 330 West 38th Street, Ste. 600 New York, NY 10018 Telephone: (212) 265-7200 NEW YORK: Donohue Appeals Mask Mandate Class Suit Dismissal ----------------------------------------------------------- Plaintiffs Patrick Donohue, et al., filed an appeal from a court ruling entered in the lawsuit entitled PATRICK DONOHUE, et al., Plaintiffs v. KATHLEEN HOCHUL, et al., Defendants, Case No. 21-CV-8463 (JPO), in the U.S. District Court for the Southern District of New York (New York City). 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 Defendants 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 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. As reported in the Class Action Reporter on March 7, 2022, Judge J. Paul Oetken of the Southern District of New York dismissed the complaint and denied the Plaintiffs' motion for a preliminary injunction. The Plaintiffs seek a review of this ruling. The appellate case is captioned as Donohue v. Hochul, Case No. 22-517, in the United States Court of Appeals for the Second Circuit, filed on March 11, 2022.[BN] Plaintiffs-Appellants Marie Farrell, Individually, and all Others Similarly Situated and on Behalf of E.F., a Student of New York City, and all Others Similarly Situated; Patrick Donohue, Individually, and all Others Similarly Situated, and on Behalf of S.J.D., a Student with Disabilities, and all Others Similarly Situated; and Angela Nolan, Individually, and all Others Similarly Situated and on Behalf of S.N., a Student with Disabilities in New York State, and all Others Similarly Situated, are represented by: Rory Jude Bellantoni, Esq. BRAIN INJURY RIGHTS GROUP, LTD. 300 East 95th Street New York, NY 10128 Telephone: (646) 850-5035 E-mail: rory@pabilaw.org Defendants-Appellees Kathleen Hochul, in her official capacity as Governor of New York, Bill De Blasio, in his official capacity as the Mayor of New York City; Howard Zucker, in his official capacity as the New York State Commissioner of Health; Betty Rosa, in her official capacity as the New York State Commissioner of Education; Lester Young,, Jr., New York State Board of Regents; Meisha Porter, in her official capacity as the Chancellor of New York City Department of Education; Dave Chokshi, in his official capacity as Commissioner of New York City Department of Health; New York Department of Health; New York Department of Education; New York Board of Regents; New York City Department of Education; and New York City Department of Health, are represented by: Matthew William Grieco, Esq. NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL 28 Liberty Street New York, NY 10005 - and - Georgia Mary Pestana, Esq. NEW YORK CITY LAW DEPARTMENT 100 Church Street New York, NY 10007 Telephone: (212) 356-2400 NISSAN NORTH: Manufacturers May File Sur-Reply in Hagenbaugh Suit ----------------------------------------------------------------- In the lawsuit entitled DAVID HAGENBAUGH, et al., individually and on behalf of all others similarly situated, Plaintiffs v. NISSAN NORTH AMERICA d/b/a NISSAN USA, et al., Defendants, Case No. 3:20-1838 (M.D. Pa.), Judge Malachy E. Mannion of the U.S. District Court for the Middle District of Pennsylvania grants the Defendant Manufacturers' motion for leave of court to file a sur-reply brief relating to the Plaintiffs' motion to remand. Factual Background Plaintiffs David Hagenbaugh, Heather Hagenbaugh, Michael Homanko, Sherri Homanko, Frederick Lubrecht, and Marianne Lubrecht, originally filed their class action complaint in Luzerne County Court of Common Pleas on Sept. 1, 2020. On Oct. 7, 2020, Defendant Nissan North America, Inc., removed the case to federal court pursuant to 28 U.S.C. Sections 1332, 1441, 1446 and 1453. On Nov. 20, 2020, the Plaintiffs filed an amended complaint with attached exhibits. The Plaintiffs are three pairs of individuals--two married couples and one father and daughter--residing in Luzerne County, Pennsylvania. The Defendants include three auto manufacturers incorporated and headquartered in other states, ("Defendant Manufacturers"), Hyundai Motor America, Kia Motors America, and Nissan North America, Inc. Three limited liability company auto dealerships authorized by the manufacturers and incorporated in Pennsylvania, ("Defendant Dealerships"), are also listed as Defendants, as are three individual dealership owners residing in other states ("Defendant Owners"). According to the amended complaint, the Defendant Dealerships, with approval of the Defendant Manufacturers and Owners, advertised a "Set for Life Program," which represented that vehicle purchasers would receive certain benefits, including engine warranties, oil and filter changes, car washes, loaner vehicles, and state inspections, for free for the duration of their ownership of a vehicle purchased through the Defendants. Amid financial difficulties, the Defendant Dealerships sold numerous vehicles without repaying the financing for those vehicles to certain manufacturer-affiliated financing entities, while still advertising the Set for Life Program benefits to purchasers. The Defendant Dealerships went out of business in November 2018, about two years after opening. Since the dealership closures, the Defendant Manufacturers have refused customers' demands to provide them with the Set for Life Program benefits. Each pair of the Plaintiffs purchased a vehicle from one of the Defendant Dealerships and each either signed an agreement with the dealership upon purchase specifying the benefits of the Set for Life Program or was provided a brochure upon purchase specifying the benefits. After the dealerships closed, the Plaintiffs demanded that the Defendant Manufacturers, respectively, continue to provide the Set for Life Program benefits on behalf of the closed dealerships they had authorized, and the Defendant Manufacturers refused. Procedural History The Plaintiffs, on behalf of those similarly situated, (the "Proposed Plaintiff Class"), brought the putative class action against the Defendants in the Luzerne County Court. Included among the Plaintiffs' putative class are all individuals located within and/or residents of the Commonwealth of Pennsylvania, who purchased or leased automobiles at the Defendant Dealerships between Nov. 1, 2016, and Nov. 30, 2018. In their original complaint, the Plaintiffs alleged violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL") and the Chapter 30 of the Pennsylvania Code ("Automotive Industry Trade Practices") (Count I), breach of contract (Count II), unjust enrichment (Count III), and fraud (Count IV). As relief, the Plaintiffs sought treble damages for Count I, actual and compensatory damages for Count II, restitution in the amount of actual and compensatory damages for Count III, punitive damages for Count IV, interest, attorney's fees, expenses, and costs of suit. The Defendants removed the case on Oct. 7, 2020, averring that the Court has diversity jurisdiction pursuant to both 28 U.S.C. Section 1332(a) and Section 1332(d), or the Class Action Fairness Act of 2005 ("CAFA"). On Nov. 3, 2020, the Plaintiffs filed a motion to remand this case back to state court, and submitted a brief in support of their motion on Nov. 17, 2020. On Dec. 8, 2020, the Defendant Manufacturers filed their brief in opposition to the motion to remand. The Plaintiffs filed a reply brief on Dec. 22, 2020. The Defendant Manufacturers thereafter filed a motion for leave of court to file a sur-reply brief in response to the Plaintiffs' reply brief, and the Court considered the Defendant's proposed sur-reply brief in the present Opinion. Discussion As a preliminary matter, the Plaintiff contends that questions remain concerning the citizenship of the three Defendant Dealerships. In contrast, the Defendants claim that no Defendants are citizens of Pennsylvania and that all Plaintiffs are citizens of Pennsylvania. Judge Mannion notes that any uncertainty regarding the citizenship of the Department Dealerships, however, impacts both a determination regarding whether there is diversity jurisdiction or jurisdiction under the CAFA. a. Diversity of Citizenship If the Court were to examine the Plaintiffs' amended complaint in light of a facial attack, the assertions made as to the Defendant Dealerships' citizenship would be insufficient to clearly determine the LLCs' citizenship as the pleadings merely indicate that the Defendant Dealerships were organized and existing under the laws of Pennsylvania, Judge Mannion opines. As the Plaintiffs make a factual attack as to the Defendants' claims for jurisdiction in their notice of removal, however, the Court is required to allow the Defendants to produce evidence, after discovery on the issue is conducted, as to the citizenship of the Defendant Dealerships' members. Therefore, the Court cannot make a determination as to whether there is in fact original jurisdiction until such discovery takes place and the citizenship of the parties is settled. b. Jurisdiction Under the Class Action Fairness Act Separate and apart from their claims of diversity jurisdiction, the Defendant Manufacturers alternatively assert that the Court maintains federal jurisdiction pursuant to the federal Class Action Fairness Act, which allows subject matter jurisdiction for certain cases where there is only minimal diversity of citizenship. Under the CAFA, the Plaintiffs' lawyers claim that the Proposed Plaintiff class consists of "1370 putative class members" with "more than 2/3 of the members of the putative class . . . citizens of the Commonwealth of Pennsylvania." Furthermore, though the Plaintiffs contend that the amount in controversy for determining diversity jurisdiction is below the $75,000 threshold, they do not challenge that the aggregated amount in controversy exceeds five million. Instead, the Plaintiffs, through their motion to remand, argue that the local controversy exception under Section 1332(d)(4)(A) applies to their CAFA claims. The local controversy exception impedes federal jurisdiction under the CAFA where the class action includes at least one local defendant "from whom significant relief is sought by members of the plaintiff class" or "whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class," 28 U.S.C. Section 1332(d)(4)(A)(i)(II). It is established, however, that the local controversy exception does not require that the local defendant's conduct be the most significant conduct or that it predominates over claims against other defendants, Judge Mannion notes. Even as the parties disagree as to the recovery the Plaintiffs seek, both parties accept that the Plaintiffs' claims start with the contention that they would not have bought their vehicles but for the dealerships' alleged fraud. The alleged fraud also occurred in Pennsylvania and the sales made in Pennsylvania were made by and through the Defendant Dealerships. The Court, thus, views the Defendant Dealerships' involvement as a significant basis for the claims asserted by the proposed plaintiff class. As set forth here, however, there are clear issues of fact regarding the proper citizenship for jurisdictional purposes as to the Defendant Dealerships, which would undermine the Court's ability to determine whether this matter is sufficiently local, Judge Mannion opines. Though the Plaintiffs "bear the burden" of establishing that the local controversy exception applies, it would be inequitable to simply state that the exception does or does not apply when one of the main factors in making such a determination clearly lacks factual support and remains in question. The Court, therefore, finds that the parties must first complete the same discovery regarding the citizenship of the Department Dealerships as set forth above before it will determine whether the local controversy exception applies. Conclusion The Defendant Manufacturers' motion for leave of court to file a sur-reply brief is granted, and the Court has considered the proposed brief. The Court is otherwise unable to determine whether it maintains original jurisdiction over this matter pursuant 28 U.S.C. Section 1332(a) or jurisdiction under the CAFA, and so the parties will be directed to conduct discovery regarding the citizenship of the Defendant Dealerships so the Court can decide if diversity jurisdiction exists in this case. An appropriate Order will follow. A full-text copy of the Court's Memorandum dated March 7, 2022, is available at https://tinyurl.com/4th4vsea from Leagle.com. NOUHAUS INC: CMP, Scheduling Order Entered in Tavarez-Vargas Suit ----------------------------------------------------------------- In the class action lawsuit captioned as CARMEN TAVAREZ-VARGAS, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, V. NOUHAUS, INC., Case No. 21-CV-9959-JPC (S.D.N.Y.), the Court entered an civil case management plan and scheduling order as follows: -- All fact discovery shall be June 30, 2022 completed no later than: -- Initial requests for production April 1, 2022 of documents shall be served by: -- Interrogatories shall be served by: April 1, 2022 -- All expert discovery, including Aug. 15, 2022 expert depositions, shall be completed no later than: -- Plaintiff's expert disclosures June 30, 2022 pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure shall be made on or before: A copy of the Court's order dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/3CP5BBi at no extra charge.[CC] OREGON: Canales-Robles Loses Class Certification Bid ----------------------------------------------------- In the class action lawsuit captioned as HECTOR FERNANDO CANALES-ROBLES and SAAMIR LOPEZ-CERVANTES, on behalf of themselves and all others similarly situated, v. COLETTE S. PETERS, former Director, Oregon Youth Authority (OYA) and current Director, Oregon Department of Corrections (ODOC); F ARIBORZ P AKSERESHT, former Director OYA; ROBERT JESTER, former Director, OYA; BOBBY MINK, former Director, OYA; MICHAEL RIGGAN, former Superintendent, MacLaren; DAN BERGER, Superintendent, MacLaren; SID THOMPSON, former Superintendent, MacLaren, Case No. 6:16-cv-01395-AC (D. Or.), the Hon. Judge John V. Acosta entered an order denying the Plaintiffs' motion for class certification. The Court said, "The Plaintiffs do not allege under which prong of Rule 23(b) they propose to maintain this class action. Moreover, because Plaintiffs have not satisfied the prerequisites of Rule 23( a), the court declines to continue its analysis under this rule. Because Plaintiffs have not satisfied the procedural requirements of Rule 23, their motion for class certification denied." The Plaintiffs allege that the Defendants violated their rights under the Fourteenth Amendment Due Process Clause by denying them access to the courts. They seek nominal, compensatory, and punitive damages on behalf of an "ODOC subclass" and assert the following class action allegation: The Plaintiffs bring this case on behalf of themselves and all other persons who were a) placed in the physical custody of the OYA following convictions in adult court, b) had non- frivolous claims to bring but were subjected to the policies and practices described, and c) were transferred to the physical custody of the ODOC after October 31, 2016. The Plaintiffs Canales-Robles and Lopez-Cervantes are Oregon residents formerly in the physical custody of the Oregon Youth Authority ("OYA") and presently in the custody of the Oregon Department of Corrections ("ODOC"). A copy of the Court's order dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/3Ih9RuA at no extra charge.[CC] OREGON: Court Extends Discovery & PTO Deadlines in Terrill ---------------------------------------------------------- In the class action lawsuit captioned as Terrill v. State of Oregon, et al., Case No. 6:21-cv-00588 (D. Or.), the Hon. Judge Ann L. Aiken entered an order on motion for extension of Discovery & PTO Deadlines as follows: -- Motion for Class Certification May 27, 2022 is due by: -- Discovery is to be completed 120 days after the Court's ruling on the motion for class certification. -- The parties shall file amended pleadings and join all claims 120 days after the Court's ruling on the motion for class certification. -- Expert Witness Disclosures and Reports are due 30 days after the close of fact discovery. -- Expert Rebuttal Reports are due 30 days after Expert Disclosures. -- Expert Discovery to be completed 30 days after Rebuttal Reports are due. -- Dispositive Motions are due 30 days after close of Expert Discovery. -- Pretrial Order is due 30 days following the Court's ruling on any dispositive motions. The suit alleges violation of the Americans with Disabilities Act.[CC] P&C PAGELS: Fails to Pay Proper Wages, Condado Suit Alleges ----------------------------------------------------------- STEPHANIE CONDADO, individually and on behalf of all others similarly situated, Plaintiff v. P&C PAGELS, INC. d/b/a P&C BAGELS; PAUL ABATANGELO; and LINDA ABANTANGELO, Defendants, Case No. 1:22-cv-02334 (E.D.N.Y., Mar. 22, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Condado was employed by the Defendant as cashier. P&C PAGELS, INC. d/b/a P&C BAGELS is a bagel shop and deli. [BN] The Plaintiff is represented by: Michael Taubenfeld, Esq. FISHER TAUBENFELD LLP 225 Broadway, Suite 1700 New York, N.Y. 10007 Telephone: (212) 571-0700 Facsimile: (212) 505-2001 PEACHCAP TAX: Leonard Appeals Securities Suit Dismissal ------------------------------------------------------- Plaintiff CLYDE E. LEONARD, JR. filed an appeal from a court ruling entered in the lawsuit styled Clyde E. Leonard Jr., individually and on behalf of all others similarly situated, Plaintiff v. PeachCap Tax & Advisory, LLC, David Harrison Miller, and Eric Steven Burnette, Defendants, Case No. 1:21-cv-02164-MHC, in the U.S. District Court for the Northern District of Georgia. The case arises from the Defendants' alleged breach of fiduciary duty, negligence, breach of contract and violations of Georgia's Uniform Securities Act by using an affiliated broker-dealer, PeachCap Securities, to buy and sell securities, resulting in the Defendants receiving unauthorized and unlawful commission payments. The lawsuit was removed from the Superior Court of Fulton County, State of Georgia, to the U.S. District Court for the Northern District of Georgia on May 24, 2021. The case was assigned Case No. 1:21-cv-02164-MHC. The Defendants filed a motion to dismiss the complaint which the Court granted on February 3, 2022, through an Order signed by Judge Mark H. Cohen. The Plaintiff seeks a review of this order. The appellate case is captioned as Clyde Leonard, Jr. v. PeachCap Tax & Advisory, LLC, et al., Case No. 22-10775, in the United States Court of Appeals for the Eleventh Circuit, filed on March 4, 2022. The briefing schedule in the Appellate Case states that: -- The appellant's brief is due on or before April 13, 2022; -- The appendix is due no later than 7 days from the filing of the appellant's brief; -- Appellant's Certificate of Interested Persons is due on or before March 28, 2022 as to Appellant Clyde E. Leonard Jr.; and -- Appellee's Certificate of Interested Persons is due on or before April 11, 2022 as to Appellee Eric Steven Burnette.[BN] Plaintiff-Appellant CLYDE E. LEONARD, JR., individually and on behalf of all others similarly situated, is represented by: Joshua P. Gunnemann, Esq. COUNCILL GUNNEMANN & CHALLY, LLC 1201 Peachtree St NE Bldg 400 Ste 2100 Atlanta, GA 30361 Telephone: (404) 407-5256 E-mail: jgunnemann@cgc-law.com - and - Bryan M. Knight, Esq. Jonathan Micah Palmer, Esq. KNIGHT PALMER, LLC 1360 Peachtree St NE Ste 1201 Atlanta, GA 30309 Telephone: (404) 228-4822 E-mail: bknight@knightpalmerlaw.com jpalmer@knightpalmerlaw.com Defendants-Appellees PEACHCAP TAX & ADVISORY, LLC, DAVID HARRISON MILLER, and ERIC STEVEN BURNETTE are represented by: William E. Eye, Esq. GREENBERG TRAURIG, LLP 3333 Piedmont Rd NE Ste 2500 Atlanta, GA 30305 Telephone: (678) 553-2132 E-mail: eyew@gtlaw.com - and - Steven Jason Rosenwasser, Esq. BONDURANT MIXSON & ELMORE, LLP 1201 W Peachtree St NW Ste 3900 Atlanta, GA 30309 Telephone: (404) 881-4167 E-mail: rosenwassers@gtlaw.com PINNACLE ATHLETIC: Court Approves Settlement in Boyd FLSA Suit -------------------------------------------------------------- Chief District Judge Elizabeth A. Wolford of the U.S. District Court for the Western District of New York approved the parties' settlement agreement in the lawsuit styled MICHAEL BOYD, on behalf of himself and all others similarly-situated, Plaintiff v. PINNACLE ATHLETIC CAMPUS, LLC; DANIEL BREE, in his professional and individual capacities; SHARON CARDARELLI, in her professional and individual capacities, and JOHN DOE and JANE DOE #1-10, Defendants, Case No. 6:19-CV-06795 EAW (W.D.N.Y.). Introduction Plaintiff Michael Boyd commenced the action on Oct. 28, 2019, against Defendants Pinnacle Athletic Campus, LLC, Individual Defendants Daniel Bree, Sharon Cardarelli, and John and Jane Does #1-10, as a collective action pursuant to the Fair Labor Standards Act, 29 U.S.C. Sections 201, et seq. ("FLSA") and putative class action under the New York Labor Law. In sum and substance, the Plaintiff alleges that he was employed by Pinnacle and he and other similarly situated employees were not properly compensated for hours worked overtime. Christopher Culver, Antonio Hepburn, and Brittany Biddle filed consents to opt-in to the litigation. The parties engaged in mediation beginning on Jan. 9, 2021. A settlement was reached between the Defendants and the Plaintiff and Biddle, but not as to Culver and Hepburn. On May 26, 2021, the Plaintiff filed a motion to amend the complaint to continue the action on behalf of Culver and Hepburn. The Defendants opposed the motion. On July 6, 2021, the Plaintiff and Biddle filed a motion for settlement approval, attaching the proposed settlement agreement as an exhibit to their motion. Pursuant to Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015), either the district court or the United States Department of Labor must approve the settlement of an employee's FLSA claims against their employer, where the settlement would dispose of those claims with prejudice. The parties request that the Court approves the proposed settlement agreement. Also currently pending before the Court is Magistrate Judge Marian W. Payson's Report and Recommendation dated Feb. 11, 2022 (the "R&R"), regarding the motion to amend. No objections were filed to the R&R. Discussion I. Legal Principles Judge Wolford notes that parties cannot privately settle FLSA claims with prejudice absent the approval of the district court or the Department of Labor, citing Lazaro-Garcia v. Sengupta Food Servs., No. 15-CV-4259 (RA), 2015 WL 9162701, at *1 (S.D.N.Y. Dec. 15, 2015). A. Factors Weighing in Favor of Approval The Court finds that the amount of recovery under the settlement agreement is fair when compared to the Plaintiff's expected range of recovery. Under the settlement agreement, the Plaintiff and Biddle will each receive $25,000, which includes $8,211.67 representing payment for all unpaid wages; $8,211.67 for alleged liquidated damages, penalties, and interest; and $8,576.66 as payment for attorneys' fees and costs in connection with their claims. This amount represents 84.9% of the Plaintiff's maximum FLSA recovery, and 80.6% of Biddle's maximum FLSA recovery, which the Court finds fair and reasonable. Further, Judge Wolford explains, entering into the settlement agreement will allow both sides to avoid the litigation risks and additional costs associated with proceeding with motion practice or a trial. Furthermore, competent counsel on both sides facilitated the settlement agreement, and there are no indicia of fraud or collusion. Therefore, the Court concludes that the factors favoring the approval of a settlement agreement are present in the instant matter. B. None of the Factors Weighing Against Approval are Present None of the factors weighing against settlement approval are present here, Judge Wolford holds. There is no evidence before the Court that other employees yet to be identified are similarly situated to the Plaintiff's circumstances. The Court is also unaware of any "history of FLSA noncompliance" by the Defendants, and the complaint does not appear to raise novel factual or legal issues that would further the development of law in this area. C. Additional Considerations in Favor of Approval Judge Wolford finds that the settlement agreement contains narrowly tailored release provisions, and does not contain any confidentiality or waiver provisions. The release provision requires the Plaintiff and Biddle to release claims "only insofar as they relate to wage-related claims contained in the Action." Further, the Plaintiff and Biddle no longer work for the Defendants. Accordingly, the Court finds that the waiver and release provisions are fair and reasonable. II. The Requested Attorneys' Fees Award Are Reasonable Pursuant to the contingency fee agreement between the Plaintiff and counsel, the counsel seeks one-third of the total net settlement amount after deduction of litigation expenses of $730, for a total of $16,423.33. Notwithstanding the stipulated contingency fee between the parties, the Plaintiff's attorneys have submitted to the Court detailed time records showing that they expended over 63.8 hours of attorney time in this matter, amounting to a total of $12,250 in fees. The Court concludes that this amounts to a reasonable fee. The Court has also considered the factors in Goldberger v. Integrated Res., Inc., 209 F.3d 43, 50 (2d Cir. 2000) in concluding that the agreed upon fee award is reasonable. Based on the records submitted by the Plaintiff's counsel, it does not appear that there was any unnecessary duplication of work on the Plaintiff's case. The case presented relatively complex issues. Both the Plaintiff and the Defendants determined that a fair settlement was a more favorable result than continuing with protracted litigation, and this favorable result was achieved at an early stage of the case, which is a positive reflection of counsel's experience and the quality of the representation. All these factors weigh in favor of finding that the attorneys' fees are reasonable, Judge Wolford holds. III. Adoption of the Report and Recommendation Pursuant to 28 U.S.C. Section 636(b)(1), the parties had 14 days to file objections to the Report and Recommendation. No objections were filed. The Court is not required to review de novo those portions of a report and recommendation to which objections were not filed. Notwithstanding the lack of objections, the Court has conducted a careful review of the Report and Recommendation, as well as the prior proceedings in the case, and finds no reason to reject or modify the Report and Recommendation. The Report and Recommendation recommends permitting the Plaintiff to amend the complaint to include Hepburn as a named plaintiff and to assert the factual allegations relating to him. The Report and Recommendation reasons that Hepburn's claims relate to the same policy and practice that the original complaint asserts on behalf of the Plaintiff, and the Court agrees. It recommends denying leave to include Culver as a plaintiff, finding that Culver's claims are not encompassed within the original complaint. Again, the Court agrees. Finally, the Report and Recommendation recommends that any other proposed amendments, including removal of the class allegations and identification of Boyd as a plaintiff from the original complaint, be denied without prejudice pending the Court's approval of the settlement. As set forth, the settlement has now been approved, and those amendments may now be pursued by stipulation or further motion practice before Magistrate Judge Payson. For these reasons, the Report and Recommendation is adopted in full. Conclusion For these reasons, the motion for settlement approval is granted, and the settlement agreement is approved. The Report and Recommendation granting in part and denying in part the Plaintiff's motion to amend is adopted in its entirety. A full-text copy of the Court's Decision and Order dated March 7, 2022, is available at https://tinyurl.com/33trzsrc from Leagle.com. POLARIS INC: Dismissal of Guzman Suit Under Appeal -------------------------------------------------- Polaris 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 15, 2022, that it is facing a class action filed in the United States District Court for the Central District of California on August 8, 2019 alleging violations of various California consumer protection laws focused on rollover protection systems' certifications for various Polaris off-road vehicles sold in California. The case is captioned "Paul Guzman and Jeremy Albright v. Polaris Inc., Polaris Industries Inc., and Polaris Sales Inc." On May 12, 2021, the district court granted summary judgment and dismissed the plaintiffs' claims. Plaintiffs have appealed the decision to the Ninth Circuit. Polaris Inc. designs, engineers and manufactures power-sports vehicles which include, Off-Road Vehicles (ORV), including All-Terrain Vehicles (ATV) and side-by-side vehicles for recreational and utility use, Snowmobiles, Motorcycles, Global Adjacent Markets vehicles, including Commercial, Government and Defense vehicles, and Boats. POLARIS INC: Faces Hellman Class Suit in California --------------------------------------------------- Polaris 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 15, 2022, that it is facing a putative class action is pending in the United States District Court for the Eastern District of California and alleges violations of various California consumer protection laws focused on rollover protection systems' certifications for various Polaris off-road vehicles sold in California, Oregon, Nevada and Texas. The case is captioned "Michael Hellman, Francisco Berlanga, Tim Artoff, Cy Mitchell and Jonathan Lollar, individually and on behalf of all others similarly situated v. Polaris Industries Inc. (DE), Polaris Sales Inc. and Polaris Industries Inc. (MN)," (May 25, 2021, E.D. Cal.) The company has moved to dismiss the non-California plaintiffs. Discovery is proceeding. Polaris Inc. designs, engineers and manufactures power-sports vehicles which include, Off-Road Vehicles (ORV), including All-Terrain Vehicles (ATV) and side-by-side vehicles for recreational and utility use, Snowmobiles, Motorcycles, Global Adjacent Markets vehicles, including Commercial, Government and Defense vehicles, and Boats. PRATT & WHITNEY: DiCello Named Co-Lead Counsel in Granata Suit -------------------------------------------------------------- In the case, David Granata, Plaintiff v. Pratt & Whitney, et al., Defendants, Case No. 3:21-CV-01657 (SVN) (D. Conn.), Judge Sarala V. Nagala of the U.S. District Court for the District of Connecticut appointed DiCello Levitt Gutzler and Quinn Emanuel Urquhart & Sullivan LLP, along with local Connecticut counsel from Hurwitz Sagarin Slossberg & Knuff, LLC and Garrison, Levin-Epstein, Fitzgerald & Pirotti P.C., as the interim co-lead counsel. I. Background On Dec. 14, 2021, the Plaintiff filed the action for violations of 15 U.S.C. Section 1 (the "Sherman Act"). In his complaint, the Plaintiff alleges the Defendants, which are aerospace engineering firms, entered a "no-poach agreement" and, through that agreement, "knowingly, intentionally, and cooperatively engaged in a contract, combination, or conspiracy in unreasonable restraint of trade." He further contends that the unlawful behavior was only recently uncovered when "the U.S. Department of Justice ("DOJ") unsealed a criminal complaint" against a former employee of Defendant Pratt & Whitney. Since the action was filed, about 30 additional complaints have been filed in the district, all of which have been consolidated into the present action. Currently pending before the Court are seven proposals from different law firms, or groups of law firms, to act as interim class counsel pending class certification. II. Discussion Initially, Judge Nagala has no doubt that each of the distinguished counsel who submitted proposals to be named interim class counsel are more than capable of adequately representing the class in the present action. Thus, her decision is based simply on the proposal she believes would best serve the interests of the class. After reviewing each of the proposals and examining how the relevant factors under the Federal Rules relate to each, she believes that the DiCello/Quinn Proposal will best suit the interests of the class. A. The Work Counsel Has Done in Identifying or Investigating Potential Claims Judge Nagala recognizes that Quin and DiCello are not the only firms to conduct substantial investigation into the claims at issue. However, their efforts, which culminated in the first-filed complaint in the consolidated action counsels in favor of their appointment as the interim class counsel. B. Counsel's Experience Handling Class Actions, Other Complex Litigation, and the Types of Claims Asserted and Counsel's Knowledge of the Applicable Law Judge Nagala acknowledges that the attorneys involved in all of the proposals demonstrate deep understanding and experience with antitrust matters generally and often no-poach matters specifically. The DiCello/Quinn Proposal is no exception. Attorneys from both DiCello and Quinn have litigated numerous class actions related to both the aerospace industry and no-poach agreements. It is clear that the experience litigating in, and knowledge of, the applicable areas of the law that each of the four firms in this proposal brings is substantial. C. The Resources Counsel Will Commit to Representing the Class Initially, Judge Nagala finds that Quinn has an in-house litigation support group, which will allow for all discovery to be handled cost effectively and without engaging the services of an outside vendor. Quinn also has many offices situated all over the country. Finally, all firms involved in this proposal have already demonstrated a willingness to devote the necessary time and resources to prosecuting the action. D. Other Matters Pertinent to Counsel's Ability to Represent the Class In the present action there are a few factors Judge Nagala believes counsel in favor of the DiCello/Quinn Proposal. While she appreciates the other applicants' willingness to work together with firms outside of their formal proposal for the successful prosecution of the present matter, she is also concerned that if too many firms were to get involved, inefficiencies could result. The DiCello/Quinn Proposal expressly forgoes any such agreement with other firms, and maintains that only two firms, with support from the two Connecticut firms, will be involved in the prosecution of the matter. The DiCello/Quinn Proposal also commits, to the extent there is a recovery, to requesting only fees in line with the graduated, cumulative scale for fees laid out in In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 991 F.Supp.2d 437, 445 (E.D.N.Y. 2014). Finally, Judge Nagala appreciates that many of the firms advancing proposals have represented a commitment to diversity amongst their assigned attorneys, including DiCello and Quinn. DiCello and Quinn are committed to recruiting, cultivating, and utilizing talent from a diverse pool of lawyers who will work on the matter. III. Conclusion For the reasons she discussed, Judge Nagala appointed DiCello Levitt Gutzler and Quinn Emanuel Urquhart & Sullivan LLP, along with local Connecticut counsel from Hurwitz Sagarin Slossberg & Knuff, LLC and Garrison, Levin-Epstein, Fitzgerald & Pirotti P.C. as the interim co-lead counsel for the putative class and granted the Motion to Appoint Counsel found at ECF No. 151. The Motions to Appoint Counsel found at ECF Nos. 143, 150, 152, 154, 155, and 156 are denied. The Interim Co-Lead Counsel may not delegate its responsibilities or assign legal work to other law firms without the prior approval of the Court. Pursuant to the Court's consolidation order, ECF No. 44, a consolidated amended complaint will be filed no later than April 11, 2022, and the parties' Rule 26(f) report will be filed no later than April 29, 2022. A full-text copy of the Court's March 11, 2022 Decision & Order is available at https://tinyurl.com/2p8msde4 from Leagle.com. PROGRESSIVE DIRECT: W.D. Washington Stays Proceedings in Assaf Suit ------------------------------------------------------------------- The U.S. District Court for the Western District of Washington, Tacoma, grants the Plaintiffs' motion to stay proceedings in the lawsuit captioned MOHAMMAD M. ASSAF, Plaintiff v. PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant, Case No. C19-6209 BHS (W.D. Wash.). I. Factual & Procedural Background In November 2019, Assaf filed a putative class action against Defendant Progressive Direct Insurance Company in Pierce County Superior Court for the State of Washington. Assaf claims that Progressive improperly failed to pay its insureds for diminished value under their Underinsured Motorist Property Damages coverage in Washington. He specifically alleged that "jurisdiction under the Class Action Fairness Act of 2005 ("CAFA") does not exist, as the amount in controversy is far less than $5 million," because the class "will have approximately 2,411 class members, who will have on average damages of $1,158 per claim" resulting in no more than $2,791,938 in recoverable damages. In December 2019, Progressive removed the matter to this Court, arguing that the amount in controversy exceeds $5 million. Progressive's calculation was based on findings in the related matter Kleinsasser v. Progressive Direct Insurance Co., No. C17-5499 BHS, 2018 WL 3471185 (W.D. Wash. July 19, 2018), reconsideration denied, No. C17-5499 BHS, 2018 WL 7982425 (W.D. Wash. Aug. 13, 2018). In Kleinsasser, the Court denied the plaintiff's motion to remand because "the average claim value was $4,198.25," which established that the amount in controversy exceeded the jurisdictional minimum of $5 million. Mr. Assaf then moved to remand based on the arguments the Court rejected in Kleinsasser. The Court held an evidentiary hearing, and concluded that Progressive had shown that "it is possible that the amount in controversy exceeds $5 million. because the average claim value could be $4,198.25" and denied Assaf's motion to remand. An appeal of Kleinsasser is currently pending before the Ninth Circuit, see No. C17-5499, Dkt. 197, with oral argument scheduled on March 11, 2022. The plaintiff in Kleinsasser challenges the Court's determination that it had jurisdiction under CAFA. Assaf now moves to stay the case, arguing that the outcome of the appeal in Kleinsasser will likely affect the proceedings and retention of jurisdiction in this matter. Progressive opposes the motion and asserts that the Ninth Circuit's ruling on the issues presented in Kleinsasser will not affect the matter. II. Discussion District Judge Benjamin H. Settle notes that the power to stay proceedings is "incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants," citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Mr. Assaf seeks a stay pending the Ninth Circuit's decision in Kleinsasser, arguing that a resolution of the appeal will likely have a direct impact on the issues presently before the Court in the matter." Mr. Assaf argues that, if the Ninth Circuit rejects any part of the Court's determination in Kleinsasser, remand of this case will be required. Indeed, the Court (and Progressive) relied on findings made in Kleinsasser in determining whether there was CAFA jurisdiction. Although Progressive argues that the outcome of the Kleinsasser appeal will not affect this matter, the Court agrees that the issues on appeal are sufficiently related to the Court's retention of jurisdiction. There is a pending, independent proceeding which bears upon the case, see Leyva, 593 F.2d at 863, and judicial economy favors a stay, Judge Settle holds. While a delay in proceedings certainly imposes some hardship on both parties, the hardship or inequity that could result from the Court ruling on Assaf's pending motion for class certification if it in fact does not have jurisdiction over the case would be far greater, Judge Settle explains. Further, the stay would only be for a few months pending the resolution of Kleinsasser at the Ninth Circuit and would not be indefinite as Progressive argues. In consideration of judicial economy and the hardship or inequities resulting from a stay, the Court concludes that Assaf has shown good cause for a brief stay. III. Order Therefore, it is ordered that Plaintiff Assaf's motion to stay proceedings is granted. The parties will file a joint status report within 30 days of the Ninth Circuit's opinion in Kleinsasser suggesting a briefing schedule for Assaf's pending motion to certify class. A full-text copy of the Court's Order dated March 7, 2022, is available at https://tinyurl.com/yc7fr5jx from Leagle.com. QG PRINTING: Sims' Bid to Certify Class Granted in Part ------------------------------------------------------- In the class action lawsuit captioned as James Sims as an individual and on behalf of all others similarly situated, v. QG PRINTING II, LLC, a Connecticut limited liability company; 74 QG PRINTING II LLC, business organization, form unknown, and DOES 1 through 50, inclusive, Case No.5:20-cv-01632-DMG-KK (C.D. Cal.), the Hon. Judge Dolly M. Gee entered an order granting in part and denying in part Sims' motion to certify class. 1. The Court certifies the following Class as to the reporting time and hours worked claims, but not the reimbursement claim: "All current and former non-exempt press production employees of Defendant QG Printing II LLC who worked at the Defendant's Riverside and/or Merced facility in the State of California at any time between April 6, 2016 through the present;" 2. The Court appoints James Sims as the representative of the Class; 3. The Court appoints Larry W. Lee and Mai Tulyathan of Diversity Law Group, P.C., and William L. Marder of Polaris Law Group LLP as Class Counsel; and 4. Within one week of this Order, the parties shall meet and confer and file a joint status report with a proposed timeline for the distribution of the class notice. On June 1, 2020, the Plaintiff Sims filed a complaint in Riverside County Superior Court, asserting claims as an individual and on behalf of all other similarly situated current and former employees of Defendants QG Printing II, LLC and 74 6 QG Printing II, LLC. Sims asserts claims for (1) failure to pay wages, (2) failure to reimburse expenses, (3) failure to provide accurate wage statements, (4) violation of California's Unfair Competition Law, California Business & Professions Code section 17200 et seq., and (5) violation of California's Private Attorneys General Act (PAGA), California Labor Code. QG Printing II, LLC removed to this Court on August 14, 2020, invoking jurisdiction under the Class Action Fairness Act ("CAFA"). On January 14, 2021, the Court granted in part QG's motion to dismiss or stay Sims' Complaint and, pursuant to the first-to-file rule, stayed Sims' causes of action for failure to provide accurate itemized wage statements in violation of Labor Code section 226(a) and PAGA to the extent that he sought statutory damages and civil penalties for the same violation. Sims filed the instant Motion on December 17, 2021. Sims seeks to certify a class to adjudicate two claims: (1) QG's alleged failure to pay all earned wages based on QG's policy or practice of requiring employees to "call-in," either by calling a toll-free hot line or using an app or website, on their off hours before their scheduled shift to confirm whether they will in fact be working that particular scheduled shift, and (2) QG's alleged failure to reimburse business expenses that employees incurred in connection with the call-in policy and/or practice. QG Printing Corporation provides printing services. A copy of the Court's order dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3wiHF8c at no extra charge.[CC] QUEST INTERNATIONAL: Hong Appeals FLSA Suit Dismissal ----------------------------------------------------- Plaintiffs Sung Eik Hong, et al., are appealing the dismissal of the lawsuit entitled SUNG EIK HONG, YONG M. KOO, JOON G. KIM, KEVIN K. LEE, YOON S. KIM, DONG IL LIM, and HUN MIN PARK, individually and on behalf of all other employees similarly situated, Plaintiffs v. Quest International Limousine, Inc., Mangil Park, and James Park, Defendants, Case No. 1:19-cv-04336, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, this class action was brought pursuant to the Fair Labor Standards Act ("FLSA"), New York Labor Law ("NYLL") and New York Codes, Rules, and Regulations ("NYCRR") to recover unpaid minimum wages and overtime compensation, unlawfully retained gratuities, spread of hours premium, and damages arising out of failure to provide pay stubs and wage notifications owed to Plaintiffs for work performed for Defendants. The complaint relates that Plaintiffs worked for Defendants in excess of 40 hours per week, without appropriate minimum wage or overtime compensation for the hours that they worked each week. Yet, the Defendants maintained a policy and practice of requiring Plaintiffs to work in excess of 40 hours per week without paying them minimum wage and overtime compensation required by federal and state laws. Defendants also failed to maintain accurate recordkeeping of their hours worked, and failed to pay Plaintiffs appropriately for any hours worked, either at the straight rate of pay, or for any additional overtime premium, says the complaint. On February 3, 2022, Magistrate Judge Sarah Netburn entered an Order stating that Plaintiffs have not proven their Fair Labor Standards Act, New York Labor Law, or state common law claims by a preponderance of evidence. On February 4, 2022, judgment was entered in favor of Defendants, and the case was closed. The Plaintiffs now seeks a review of the Court's judgment. The appellate case is captioned as Hong v. Quest International Limousine, Inc., Case No. 22-520, in the United States Court of Appeals for the Second Circuit, filed on March 11, 2022.[BN] Plaintiffs-Appellants Sung Eik Hong, Kevin K. Lee, Yoon S. Kim, Dong Il Lim, Hun Min Park, and Jhan Gyong Bak, individually and on behalf of others similarly situated, appear pro se. Defendant-Appellee Quest International Limousine, Inc., Mangil Park, and James Park are represented by: Errol Courtney Deans, Jr., Esq. SONG LAW FIRM, LLC 400 Kelby Street, Suite 1900 Fort Lee, NJ 07024 Telephone: (201) 461-0031 E-mail: edeans@songlawfirm.com RAUSCH STURM: Wins Bid to Compel Arbitration in Schmitt Suit ------------------------------------------------------------ In the lawsuit entitled VICTOR E. SCHMITT, on behalf of themselves and all others similarly situated; and CHERYL SCHMITT, on behalf of themselves and all others similarly situated, Plaintiffs v. RAUSCH, STURM, ISRAEL, ENERSON & HORNIK, LLP, GREGORY W. ENERSON, JULIE A. RAUSCH, PAUL THIELHELM, and DISCOVER BANK, Defendants, Case No. 8:21CV11 (D. Neb.), Senior District Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska grants the Defendants' motion to compel arbitration. The matter is before the Court on the Plaintiffs' Objection to Magistrate Judge's Order. The Magistrate Judge's Order granted the Defendants' motion to compel arbitration. The order found there was a valid arbitration agreement between the parties. Background The Plaintiffs, Victor E. Schmitt and Cheryl Schmitt, on behalf of themselves and all others similarly situated, filed a class action lawsuit against Defendants, Rausch, Sturm, Israel, Enerson & Hornik, LLP, Julie A. Rausch, William C. Sturm, Scott M. Israel, Gregory W. Enerson, Robert Hornik, Paul Thielhelm, (collectively "RS Defendants") and Discover Bank, on Jan. 1, 2021, and later amended their complaint on April 16, 2021. RS Defendants previously brought suit against the Plaintiffs on behalf of Discover in order to recover credit card debt owed to Discover, under Case Numbers CI 20-3870, and CI 20-3861 in Sarpy County, Nebraska District Court. The Plaintiffs allege that Discover ceased collection efforts from the Plaintiffs in 2019, however, the Defendants deny that allegation. The Plaintiffs allege that Discover waived collection of accruing interest and charged off the accounts allegedly owed by the Plaintiffs. When the Plaintiffs received complaints from RS Defendants and Discover, they were confused and hired an attorney to assist with the suit. The Plaintiffs allege in Count I that the Defendants violated FDCPA, when they continued to communicate directly with consumers who were known to be represented by an attorney. The Plaintiffs argue that because of the standard forms used in violation of the Fair Debt Collection Practices Act ("FDCPA"), they incurred actual damages by having to hire an attorney, as well as emotional distress. The Plaintiffs allege in Count II, that the Defendants violated the Nebraska Consumer Protection Act ("NCPA"), Neb. Rev. Stat. Section 59-1601, by filing county court debt collection complaints, sending letters, and seeking and adding unauthorized interest after the alleged accounts were charged off. The Defendants filed a Motion to Compel Arbitration on Aug. 2, 2021. The Defendants argue that the Plaintiffs agreed to Discover's terms and conditions associated with their Discover accounts. One of the provisions in the terms and conditions was that either party can elect to arbitrate any dispute that arises out of or relates to the accounts. The Defendants argue that this suit relates to the Plaintiffs' accounts with Discover, and the Defendants elect to compel arbitration. Mrs. Schmitt obtained her credit card from Discover on Oct. 20, 1994, and agreed to the terms and conditions. A specific term in the agreement authorized Discover to "change any term or part of this Agreement by sending her written notice at least 30 days before the change is to become effective," and gave Mrs. Schmitt 30 days to object to the provision if she did not agree. In April 2003, Discover modified their terms and conditions to include an arbitration clause. Before the arbitration agreement became effective, Discover mailed Mrs. Schmitt a letter titled "Notice of Right to Reject Arbitration." Mrs. Schmitt never objected to the arbitration clause. Mr. Schmitt applied for a Discover credit card and received the card on Jan. 10, 2005, along with Discover's 2004 terms and conditions agreement. The terms and conditions advised Mr. Schmitt to carefully read the agreement before using his account. The terms and conditions stated that an arbitration clause was included on page 12 and that Mr. Schmitt may reject the clause by providing notice within 30 days. The Defendants argue that Mr. Schmitt accepted the terms and conditions when he used his new account and did not cancel it within 30 days of receiving it. Magistrate Judge's Findings The Plaintiffs argue the arbitration clause is unconscionable because it was buried in the fine print of a piece of junk mail that they do not recall seeing. The Plaintiffs argue that the charges on their account incurred before the arbitration clause took effect, therefore, the clause should not apply to those charges. They argue that arbitration is substantively unconscionable because it is one sided, costly, and forecloses the ability to pursue a class action. Magistrate Judge Cheryl Renae Zwart viewed the evidence and the totality of the circumstances and found that the contract is not unconscionable. The Magistrate Judge found that Mrs. Schmitt was given notice of the new arbitration clause, given notice of her right to reject the clause, and failed to reject the clause. The Magistrate Judge acknowledges that there are no specific credit card charges to show when the Plaintiffs' activity occurred, and whether that was after the arbitration clause was made effective. However, letters sent to the Plaintiffs, dated June 7, 2019, also prove that the accounts were still active 30 days after the arbitration clause took effect. The Magistrate Judge found that the arbitration clause was not buried in the fine print like the Plaintiff alleges. The arbitration clause was in the same size font as the entire terms and condition agreement. Discover's 2003 and 2004 agreements included a notice of right to reject arbitration on the first page. The Magistrate Judge found that the arbitration clause was not one sided because either party could elect to resolve a conflict by arbitration. The Magistrate Judge also found that the Plaintiffs provided no evidence that the costs or arbitration are prohibitive, and instead only provided generalized statements. Discussion In their objection, the Plaintiffs first argue that the Magistrate Judge erred in finding that the arbitration clause was not buried or hidden within the fine print of the agreement. The Plaintiffs argue that the letters from Discover to the Plaintiffs dated June 7, 2019, do not prove that they used their Discover account after the arbitration clause took effect. The Plaintiffs also argue that the Magistrate Judge erred in finding that a valid agreement to arbitrate exists between the parties. Pursuant to NECivR 72.3 and 28 U.S.C. Section 636(b)(1)(C), the Court has conducted a de novo review of the record and adopts the Magistrate Judge's findings. The arbitration clause was, in fact, not buried within the text of the agreement. Although there was not an arbitration clause when Mrs. Schmitt originally obtained a Discover Credit Card, Discover retained the right to amend the terms and conditions with 30 days' notice. In April 2003, Discover modified their terms and conditions to include this arbitration clause and mailed Mrs. Schmitt a letter titled "Notice of Right to Reject Arbitration," which Mrs. Schmitt never objected. Mrs. Schmitt never denied that she received the notice, only that it was buried in the fine print of a piece of junk mail that she does not recall seeing. Therefore, the Court determines that the Magistrate Judge was correct in finding that the arbitration clause was not buried within the terms and conditions agreement and Mrs. Schmitt had adequate notice of the new clause. The Court further finds that the letters from Discover to the Plaintiffs dated June 7, 2019, prove that the Plaintiffs used their Discover accounts after the arbitration clause took effect, therefore, accepting the terms and conditions, including the arbitration clause. The Court finds that Mrs. Schmitt did in fact receive a notice to object to the arbitration clause, did not object to the clause, and therefore, accepted the clause. The Court also finds that Mr. Schmitt did receive the terms and conditions agreement when he received his credit card, used his credit card, and, therefore, agreed to Discover's arbitration clause. The Court has reviewed all the Plaintiffs' other objections and finds them to be without merit, particularly given the number of cases that have permitted arbitration. The Court has carefully reviewed the Magistrate Judge's Order and adopts it in its entirety. Therefore, Judge Bataillon ordered that: 1. the Order Compelling Arbitration by Magistrate Judge Zwart is adopted in its entirety; 2. the Plaintiffs' Objection to Magistrate Judge Zwart's Order is overruled; 3. pursuant to the Magistrate Judge's Order, RS Defendants' request to join arbitration is granted and the Plaintiffs' claims against the RS Defendants will be submitted to arbitration; 4. that Plaintiffs' dispute will be promptly submitted to binding arbitration in accordance with the arbitration clauses quoted and discussed in this opinion; and 5. the action is stayed pending arbitration. Every 90 days from the date of this order, counsel will file a joint status report with the Court regarding the progress of the arbitration proceedings. A full-text copy of the Court's Memorandum & Order dated March 7, 2022, is available at https://tinyurl.com/2p8kz9xp from Leagle.com. REAL HOSPITALITY: Final Approval of Class Settlement Deal Sought ---------------------------------------------------------------- In the class action lawsuit captioned as KIEFER BRAZIER, LUISAIRY GONZALEZ PENA, and LATASHA AUGUSTUS, individually and on behalf of all others similarly situated, v. REAL HOSPITALITY GROUP, LLC, and REAL PAYROLL GROUP, LLC, Case No. 1:20-cv-08239-VM (S.D.N.Y.), the Plaintiffs ask the Court to enter an order: 1. granting final approval of the Class Action Settlement Agreement; 2. certifying the proposed Settlement Class pursuant to Federal Rule of Civil Procedure 23; 3. approving Class Counsel's attorneys' fees and costs; 4. approving service payments to Named Plaintiffs; 5. approving the Class Administrator's fees; and 6. dismissing this Action with prejudice. Real Hospitality is a hotel management company that works closely with hotel managers. A copy of the Plaintiffs' motion dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3ICQdtf at no extra charge.[CC] The Plaintiffs are represented by: William Brown, Esq. BROWN KWON & LAM LLP 521 Fifth Avenue, 17 th Floor New York, NY 10175 Telephone: (212) 295-5825 Facsimile: (718) 795-1642 E-mail: wbrown@bkllawyers.com RESIDEO TECHNOLOGIES: To Settle Securities Suit in D. Minn. ----------------------------------------------------------- Resideo Technologies, 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 15, 2022, that the company, its former CEO Michael Nefkens, its former CFO Joseph Ragan and its former CIO Niccolo de Masi are named defendants of a class action securities suit in the U.S. District Court for the District of Minnesota styled "In re Resideo Technologies, Inc. Securities Litigation," Case No. 19-cv-02863. On July 30, 2021, the company executed a term sheet with plaintiffs' representatives setting forth an agreement in principle to settle the claims alleged in the complaint, as amended. The complaint, as amended, asserts claims under Section 10(b) and Section 20(a) of the Securities Exchange Act of 1934, broadly alleging, among other things, that the defendants (or some of them) made false and misleading statements regarding, among other things, Resideo's business, performance, the efficiency of its supply chain, operational and administrative issues resulting from the spin-off from Honeywell, certain business initiatives, and financial guidance in 2019. The company executed a term sheet with plaintiffs' representatives setting forth an agreement in principle to settle the claims alleged in the complaint, as amended. The total amount to be paid in settlement of the claims as set forth in the agreement in principle is $55 million. Insurance recoveries of approximately $39 million are expected related to the settlement. The claim settlement payment and related insurance recoveries have been paid to an escrow account pending final court approval of the Securities Litigation. On August 18, 2021, the company and plaintiffs' representative executed a definitive Stipulation and Agreement of Settlement reflecting the terms of the agreement in principle and other customary terms and conditions, including court approval of the settlement. No objections to the settlement were filed with the court. On January 27, 2022, the court held a final hearing to consider whether the settlement is fair, reasonable, and in the best interests of the settlement class and took a motion for approval of the settlement under advisement. Resideo is a global manufacturer and developer of technology-driven products and solutions that provide critical comfort, residential thermal and security solutions to over 150 million homes globally. RESOURCE BIOLOGICS: Progressive Health Sues Over Unsolicited Ads ---------------------------------------------------------------- PROGRESSIVE HEALTH AND REHAB CORP., an Ohio corporation, individually and as the representative of a class of similarly-situated persons v. RESOURCE BIOLOGICS, LLC, a Delaware limited liability company, Case No. 1:22-cv-00142-MWM (S.D. Ohio, March 18, 2022) challenges the Defendant's practice of sending “unsolicited advertisements" by facsimile in violation of the Federal Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005. On November 18, 2021 and December 9, 2021, the Defendant sent Plaintiff two fax advertisements. The Defendant has sent these Faxes and other facsimile transmissions of unsolicited advertisements to Plaintiff and the Class in violation of the TCPA, says the suit. On behalf of itself and all others similarly situated, the Plaintiff brings this case as a class action asserting claims against Defendant under the TCPA. The Plaintiff seeks to certify a class comprising all that were sent these Faxes and other unsolicited fax advertisements that were sent without prior express invitation or permission and/or without compliant opt-out language (to the extent the affirmative defense of established business relationship (EBR) is alleged). The Plaintiff seeks statutory damages for each violation of the TCPA and injunctive relief. BRLLC is a start-up Vaccine and Biopharma company headquartered in Germantown, Maryland.[BN] 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) 786-9227 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 RIVIAN AUTOMOTIVE: Faces Horvath Suit Over Drop in Share Price -------------------------------------------------------------- ALBERT NICHOLAS HORVATH, individually and on behalf of all others similarly situated Plaintiff v. RIVIAN AUTOMOTIVE, INC.; ROBERT J. SCARINGE; CLAIRE MCDONOUGH; JEFFREY R. BAKER; JITEN BEHL; KAREN BOONE; SANFORD SCHWARTZ; ROSE MARCARIO; PETER KRAWIEC; JAY FLATLEY; PAMELA THOMAS-GRAHAM; MORGAN STANLEY & CO. LLC; GOLDMAN SACHS & CO. LLC; J.P. MORGAN SECURITIES LLC; BARCLAYS CAPITAL INC.; DEUTSCHE BANK SECURITIES INC.; ALLEN & COMPANY LLC; BofA SECURITIES, INC.; MIZUHO SECURITIES USA LLC; WELLS FARGO SECURITIES, LLC; NOMURA SECURITIES INTERNATIONAL, INC.; PIPER SANDLER & CO.; RBC CAPITAL MARKETS, LLC; ROBERT W. BAIRD & CO. INCORPORATED; WEDBUSH SECURITIES INC.; ACADEMY SECURITIES, INC.; BLAYLOCK VAN, LLC; CABRERA CAPITAL MARKETS LLC; C.L. KING & ASSOCIATES, INC.; LOOP CAPITAL MARKETS LLC; SAMUEL A. RAMIREZ & COMPANY, INC.; SIEBERT WILLIAMS SHANK & CO., LLC; and TIGRESS FINANCIAL PARTNERS, LLC, Defendants, Case No. 8:22-cv-00444 (C.D., Cal., Mar. 22, 2022) is a federal securities class action on behalf of a class (the "Class") of all persons and entities who purchased Rivian common stock between November 10, 2021, and March 10, 2022, inclusive (the "Class Period"), and all persons and entities who purchased Rivian common stock pursuant and traceable to the Registration Statement issued in connection with Rivian's November 2021 initial public offering (the "IPO"), alleging violations of the Securities Exchange Act of 1934. According to the complaint, in the Registration Statement and throughout the Class Period, the Defendants made materially false and misleading statements, as well as failed to disclose material adverse facts, about the Company's business and operations. Specifically, the Defendants made false and misleading statements and failed to disclose that: (1) Rivian would not meet its 2021 production and delivery targets; (2) Rivian's vehicles were underpriced and the Company would need to substantially increase prices; and (3) as a result, Defendants' representations about the Company's business, operations, and prospects lacked a reasonable basis. The truth about Rivian's production capabilities and business prospects began to emerge on December 16, 2021, when Rivian disclosed that it would fall "a few hundred vehicles short of [its] 2021 production target of 1,200 [vehicles]." In addition to admitting that production was lagging behind, Defendant Robert J. Scaringe—the Company's Founder, Chief Executive Officer, and Chairman - acknowledged that Rivian's vehicles were "very aggressively priced" and that, against "the backdrop of inflation," the Company was "look[ing] at [their] pricing," says the suit. Then, on March 10, 2022, Rivian announced disappointing financial results for the fourth quarter of fiscal year 2021, including revenue and adjusted losses per share that fell far below analysts' estimates. Additionally, while analysts had expected Rivian to produce 40,000 vehicles in 2022, the Defendants disclosed that the Company expected to produce only 25,000 vehicles in 2022. Rivian's stock price fell $3.11 per share, or approximately 7.5%, from a close of $41.16 per share on March 10, 2022, to close at $38.05 per share on March 11, 2022. As a result of the Defendants' alleged wrongful acts and omissions, and the decline in the market value of the Company's common stock when the truth was revealed, the Plaintiff and other members of the Class have suffered significant damages. RIVIAN AUTOMOTIVE, INC. is an automotive technology company. The Company designs and manufactures vans, trucks, and sports utility vehicles, as well as offers repair and maintenance services.[BN] The Plaintiff is represented by: Stephen G. Larson, Esq. Paul A. Rigali, Esq. LARSON LLP 555 South Flower Street, Suite 4400 Los Angeles, CA 90071 Telephone: (213) 436-4888 Facsimile: (213) 623-2000 Email: slarson@larsonllp.com prigali@larsonllp.com -and - Steven E. Bledsoe, Esq. LARSON LLP 600 Anton Boulevard, Suite 1270 Costa Mesa, CA 92626 Telephone: (949) 516-7250 Facsimile: (949) 516-7251 Email: sbledsoe@larsonllp.com ROSS HUNTER: Gets Continuance of Litigation Deadlines ----------------------------------------------------- In the class action lawsuit captioned as MICHAEL ROGERS, RONALD ACKERSON, and DAMIEN RIVERA et al., v. ROSS HUNTER, Secretary of DCYF, in his official capacity, et al., Case No. 3:21-cv-05248-RAJ-MLP (W.D. Wash.), the Hon. Judge Michelle L. Peterson entered an order that: 1. The motion of the parties seeking continuance of litigation deadlines and request for status conference and order is granted pursuant to W.D. Loc. R. 16(b)(6) 2. The Defendants will re-file their Motion for Summary Judgment by March 3, 2022, to be noted for March 25, 2022. However, the parties understand that the Court may not be able to provide a ruling on Defendants' motion for summary judgment prior to mediation. 3. The Plaintiffs' deadline to file their Motion for Class Certification and Report of Class Certification Experts is continued from March 4, 2022 to June 3, 2022. 4. The deadline for Defendants to file their opposition to Plaintiffs' Motion for Class Certification is re-set from the due date of April 22, 2022 to July 22, 2022. 5. The Plaintiffs' deadline to file their Reply re: Motion for Class Certification is re-set from May 27, 2022 to August 26, 2022. 6. The deadline for reports of expert witnesses and all other motions for discovery is re-set from May 23, 2022 to August 22, 2022, to be noted for consideration no later than the third Friday thereafter. 7. The deadline for rebuttal expert disclosures under Fed. R. Civ. P 26(a)(2) is re-set from June 24, 2022 to September 23, 2022. 8. The deadline for completion of discovery is extended from June 24, 2022 to September 23, 2022. 9. The deadline for all dispositive motions and motions to exclude expert testimony for failure to satisfy Daubert is re-set from July 25, 2022 to October 24, 2022. A copy of the Court's order dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/3walAbT at no extra charge.[CC] The Plaintiffs are represented by: Sarah R. Nagy, Esq. Alison S. Bilow, Esq. Nicholas B. Straley, Esq. Jonathan Nomamiukor, Esq. Bonnie A. Linville, Esq. COLUMBIA LEGAL SERVICES 101 Yesler Way, Suite 300 Seattle, WA 98104 Telephone: (206) 464-0838 The Defendants are represented by: Daniel J. Judge, Esq. SENIOR COUNSEL Anne Miller, Esq. Cindy J. Gaddis, Esq. Marko L. Pavela, Esq. ASSISTANT ATTORNEYS GENERAL SAFECO INSURANCE: 2nd Amended Case Management Sched Order Entered ----------------------------------------------------------------- In the class action lawsuit captioned as WENDALL C. GARTH, individually and on behalf of all others similarly situated v. SAFECO INSURANCE COMPANY OF ILLINOIS, Case No. 1:21-cv-00602-JPC (N.D. Ohio), the Hon. Judge J. Philip Calabrese entered a second amended case management scheduling order: -- Disclosure of Plaintiff's Class June 3, 2022 Certification expert and Deadline to Move for Class Certification: -- Disclosure of Defendant's Class July 13, 2022 Certification expert and Deadline for Opposition to Class Certification: -- Deadline for reply in support of Sept. 6, 2022 class certification and exchange of expert rebuttable reports: -- Fact discovery cut-off: Oct. 12, 2022 On March 2, 2022, the parties jointly moved to extend the case-management schedule by 30 days, explaining that they are still participating in a private mediation. Safeco operates as an insurance company. A copy of the Court's order dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/37HvQhL at no extra charge.[CC] SAMSUNG ELECTRONICS: Holland Suit Asserts "Benchmark Cheating" --------------------------------------------------------------- TRACEY HOLLAND, VIRGINIA ERB MARQUIS, and DON ROWLETT, individually and on behalf of all others similarly situated, Plaintiffs v. SAMSUNG ELECTRONICS AMERICA, INC., and SAMSUNG ELECTRONICS CO., LTD., Defendants, Case No. 2:22-cv-01348 (D.N.J., March 11, 2022) is a class action suit against Defendants for the design, manufacturing, marketing, and sale of smartphone models, including, but not limited to, models and versions of the S10, S20, S21, and S22, and versions designated as "FE," "Ultra," "Plus," or the like, which engage in "benchmark cheating" in violation of the New Jersey Consumer Fraud Act, the Texas' Deceptive Trade Practices-Consumer Protection Act, and the Virginia Consumer Protection Act. The Plaintiffs assert that the Samsung devices at issue contain a mobile application called Game Optimizing Service that artificially and selectively limits - or "throttles" - access to the devices' processing power and other resources, purportedly with the intention of preventing overheating to, and extending battery life of, the devices. Specifically, Samsung has programmed these devices to run at faster than normal speeds (or higher speeds than apps operating in the real world) when they detect certain "benchmarking" apps; i.e., performance-measuring tools used by reviewers and consumers, including Plaintiffs, to test and compare the speed and performance of smartphones and tablets. Allegedly, Samsung's throttling manipulation was intended to address a defect in the design of its devices: the fact that the devices' batteries lacked the capacity and power delivery to keep up with the demands placed upon them by Samsung's hardware and software. Samsung Electronics America, Inc. manufactures electronic products. The Company offers televisions, digital cameras, cell phones, storage devices, home appliances, security systems, smartwatches, and computer products. Samsung Electronics America serves customers worldwide.[BN] The Plaintiffs are represented by: Christopher A. Seeger, Esq. David R. Buchanan, Esq. Christopher L. Ayers, Esq. SEEGER WEISS LLP 55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Telephone: (973) 639-9100 Facsimile: (973) 679-8656 E-mail: cseeger@seegerweiss.com dbuchanan@seegerweiss.com cayers@seegerweiss.com - and - Shauna B. Itri, Esq. SEEGER WEISS LLP 1515 Market Street, Suite 1380 Philadelphia, PA 19102 Telephone: (215) 564-2300 Facsimile: (215) 851-8029 E-mail: sitri@seegerweiss.com SCHRAIER INVESTMENTS: Fails to Pay Proper Wages, Weaver Suit Says ----------------------------------------------------------------- KRISTINA N. WEAVER, and other similarly situated individuals, Plaintiff v. SCHRAIER INVESTMENTS 116 LLC d/b/a TROPICAL SMOOTHIE CAFE, and AMBER SCHRAIER, individually, Defendants, Case No. 2:22-cv-14089 (S.D. Fla., March 11, 2022) is an action brought by the Plaintiff to recover money damages for unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act. Plaintiff was employed by the Defendants from approximately August 15, 20019, through January 21, 2022, or 127 weeks. She worked as a shift leader, and she had multiple responsibilities such as restaurant attendant, cash register, unloading trucks, making smoothies, cooking, cleaning, and performing general restaurant work. Schraier Investments 116 LLC, d/b/a Tropical Smoothie Cafe, is a Florida-based franchised cafe/restaurant offering smoothies, cafes, salads, and other fast food preparations.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd. Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com SEABOARD CORPORATION: Antitrust Suit Pending in D. Minn. --------------------------------------------------------- Seaboard 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 15, 2022, that it is facing a class action complaint in the U.S. District Court for the District of Minnesota against several pork processors, including Seaboard Foods LLC and Agri Stats, Inc., a data sharing service. The complaint also named Seaboard Corporation as a defendant. On June 28, 2018, twelve indirect purchasers of pork products makes claims on behalf of putative classes of direct and indirect purchasers were later filed in said District Court, and three additional actions by standalone plaintiffs (including the Commonwealth of Puerto Rico) were filed in or transferred to the District Court. The consolidated actions are styled "In re Pork Antitrust Litigation." The operative complaints allege, among other things, that beginning in January 2009, the defendants conspired and combined to fix, raise, maintain, and stabilize the price of pork products in violation of U.S. antitrust laws by coordinating their output and limiting production, allegedly facilitated by the exchange of non-public information about prices, capacity, sales volume and demand through Agri Stats, Inc. The complaints on behalf of the putative classes of indirect purchasers also assert claims under various state laws, including state antitrust laws, unfair competition laws, consumer protection statutes, and common law unjust enrichment. The relief sought in the respective complaints includes treble damages, injunctive relief, prejudgment and post-judgment interest, costs and attorneys' fees. On October 16, 2020, the District Court denied defendants' motions to dismiss the amended complaints, but the District Court later dismissed all claims against Seaboard Corporation without prejudice. In 2021 and 2022, additional standalone plaintiffs filed similar actions in other federal courts throughout the country, several of which name Seaboard Corporation as a defendant. These actions have been or are expected to be conditionally transferred to Minnesota for pretrial proceedings pursuant to an order by the Judicial Panel on Multidistrict Litigation. Seaboard is primarily engaged in hog production and pork processing in the United States. SELECT PORTFOLIO: Collins Files FDCPA Suit in S.D. Florida ---------------------------------------------------------- A class action lawsuit has been filed against Select Portfolio Servicing, Inc. The case is styled as Ronald J. Collins, individually and on behalf of those similarly situated v. Select Portfolio Servicing, Inc., Case No. 9:22-cv-80420-XXXX (S.D. Fla., March 16, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Select Portfolio Servicing, Inc. -- https://www.spservicing.com/ -- is a loan servicing company founded in 1989 as Fairbanks Capital Corp. with operations in Salt Lake City, Utah and Jacksonville, Florida.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. JESSICA L.KERR, P.A. DBA THE ADVOCACY GROUP 200 S.E. 6th Street, Suite 504 Fort Lauderdale, FL 33301 Phone: (954) 282-1858 Fax: (844) 786-3694 Email: service@advocacypa.com SERVICE CORP: Faces Taylor Class Suit in Florida Court ------------------------------------------------------ Service Corporation International disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 15, 2022, that it is facing a class action suit captioned "Nancy Taylor, on behalf of herself and others similarly situated v. Service Corporation International and others," Case No. 20-cv-60709, in the United States District Court Southern District of Florida Fort Lauderdale Division. This case was filed in April 2020 as a Florida class action alleging that the allocation of prices among certain of its cremation service contracts and cremation merchandise contracts, and the related preneed trust funding, and the failure to disclose commissions paid and sales practices associated with the sale of third-party travel protection plans, violate the Florida Deceptive and Unfair Trade Practices Act and constitute unjust enrichment. Plaintiff seeks refunds, general, actual, compensatory and exemplary damages, civil penalties, interest, and attorney fees. Service Corporation is a provider of death-care products and services, with a network of funeral service locations and cemeteries unequaled in geographic scale and reach. At December 31, 2021, we operated 1,471 funeral service locations and 488 cemeteries, which are geographically diversified across 44 states, eight Canadian provinces, the District of Columbia, and Puerto Rico. SIMON PROPERTY: Court Resets Pre-trial Deadlines in Cafe Suit ------------------------------------------------------------- In the class action lawsuit captioned as CAFE, GELATO & PANINI LLC, and DJAMES FOODS, INC., on behalf of themselves and all others similarly situated, v. SIMON PROPERTY GROUP, INC., et al., Case No. 0:20-cv-60981-AMC (S.D. Fla.), the Hon. Judge Aileen M. Cannon entered an order granting in part and denying in part defendants' motion and resetting pre-trial deadlines as follows: 1. The Defendants' Motion to Modify Fourth Amended Scheduling Order is granted in part and denied in part. 2. The Fourth Amended Scheduling Order's pre-trial deadlines are modified in the following way: a. The parties shall complete April 15, 2022 fact discovery on or before: b. The parties shall exchange April 18, 2022 expert witness summaries or reports on or before: c. The parties shall exchange May 9, 2022 rebuttal expert witness summaries or reports on or before: d. The parties shall complete May 23, 2022 expert discovery on or before: e. The Plaintiffs shall file May 31, 2022 their Motion for Class Certification on or before: 3. All other deadlines and instructions in the Court's Fourth Amended Scheduling Order remain in effect. Simon Property Group, Inc. is an American real estate investment trust that invests in shopping malls, outlet centers, and community/lifestyle centers. A copy of the Court's order dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3L1hjvk at no extra charge.[CC] SIMPSON STRONG-TIE: Salhotra Loses Class Certification Bid ---------------------------------------------------------- In the class action lawsuit captioned as RAVI SALHOTRA, et al., v. Simpson Strong-Tie Company, Inc. et al., Case No. 3:19-cv-07901-TSH (N.D. Cal.), the Court entered an order denying motion for class certification; granting defendants' request for judicial notice; denying defendants' objections to plaintiffs' non-expert declarations; granting defendants' motion to exclude expert testimony; denying as moot plaintiffs' motion to strike defendants' objections, defendants' motion to strike reply evidence, and defendants' objections to new reply evidence; and granting in part and denying in part motions to seal. The Court finds superiority is not satisfied. The existence of other actions related to the Plaintiffs' homes and foundations signify a class interest in individually controlling the prosecution of separate actions and indicate litigation concerning Simpsons' products has already begun. These factors weigh against class actions and a finding of superiority. Moreover, the Plaintiffs failed to 8 provide adequate justification for concentrating this litigation in this particular forum. The Plaintiffs have failed to establish any particular reason why it would be especially efficient for this Court to hear such a massive class action lawsuit. The Court concludes the complexities of class action treatment weigh against class certification. The Plaintiffs brought this putative class action alleging that the Defendants' construction connectors and fasteners prematurely corrode, causing danger to Plaintiffs' properties and requiring costly repairs. This case concerns HD Strap-tie Holdowns and MAS Mudsil Anchors created, marketed, and sold by the defendants. The Products are embedded in homes' concrete foundations, nailed to structural members, and covered with house wrap or exterior cladding. The Products are made of steel and coated with a standard "Low" G90 galvanization, a thin layer of zinc, designed to protect the Products from corrosion. Between 1992 and 2018, Simpson sold more than 426 million Products. Simpson advertises its Products to construction professionals in Simpson's Wood Construction Connector Catalogs (the "Catalogs"). Simpson's Catalogs provide corrosion information, recommendations, specifications, and warranties that broadly apply to all of Simpson's connectors. The Plaintiffs are California and Arizona homeowners with homes containing Simpson's Products in the concrete foundations. The Plaintiffs assert Simpson's Products are inherently defective and prone to premature corrosion, thereby beaching Simpson's express warranty. On August 20, 2021, the Plaintiffs moved to certify the following three classes: National Class: All individuals in the United States who own residential structures constructed with Simpson HD Strap-Tie Holdowns and/or Simpson MAS Mudsill Anchors embedded in the foundations and all prior owners of residential structures who paid to repair and/or replace Simpson HD Strap-Tie Holdowns and/or Simpson MAS Mudsill Anchors. California Class: All individuals in California who own residential structures constructed with Simpson HD Strap-Tie Holdowns and/or Simpson MAS Mudsill Anchors embedded in the foundations and all prior owners of residential structures who paid to repair and/or replace Simpson HD Strap-Tie Holdowns and/or Simpson MAS Mudsill Anchors. Arizona Class: All individuals in Arizona who own residential structures constructed with Simpson HD Strap-Tie Holdowns and/or Simpson MAS Mudsill Anchors embedded in the foundations and all prior owners of residential structures who paid to repair and/or replace Simpson HD Strap-Tie Holdowns and/or Simpson MAS Mudsill Anchors. A copy of the Court's order dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/3tgW8iU at no extra charge.[CC] SOCK GEEK: Ortega Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against Sock Geek LLC. The case is styled as Juan Ortega, individually, and on behalf of all others similarly situated v. Sock Geek LLC, Case No. 1:22-cv-02156 (S.D.N.Y., March 15, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Sock Geek -- https://www.sockgeek.com/ -- is located in Olathe, Kansas and primarily operates in the Socks business industry.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com SOCLEAN INC: Litman Sues Over Failure to Disclose Levels of Ozone ----------------------------------------------------------------- Richard Litman, individually and on behalf of all others similarly situated v. SOCLEAN, INC., Case No. 1:22-cv-00250-PTG-IDD (E.D. Va., March 4, 2022), is brought against the Defendant to recover damages for economic relief as a result of false and misleading representations with their The SoClean device and failure to disclose that the SoClean device generates ozone or the levels of ozone generated. The Defendant manufactures and sells medical devices that clean continuous positive airway pressure ("CPAP") machines. The SoClean device is marketed as being compatible with many types of these machines. The SoClean device uses ozone gas in an attempt to clean and protect CPAP equipment. When ozone encounters organic material, such as a CPAP device, its third oxygen atom can detach from the ozone molecule and reattach to molecules of the other substance, thereby altering the chemical composition of the other substance and damaging that substance. The SoClean device is marketed as being able to sanitize CPAP machines by generating ozone and circulating it throughout the user's CPAP equipment. During a cleaning cycle, the SoClean device consistently generates prohibited amounts of ozone by volume of air circulating through the device and the CPAP machine. Ozone levels remain within the CPAP mask, hose and tank after cleaning by the SoClean device, causing damage to the component parts of the CPAP machine owned by the Plaintiff and other consumers. Packaging for the SoClean device does not disclose that the SoClean device generates ozone or the levels of ozone generated. Marketing materials for the SoClean device do not disclose they generate ozone or the levels of ozone generated. The Defendant represents to consumers that it uses "activated oxygen" to sanitize CPAP machines. In reality, the SoClean device uses ozone to sanitize CPAP machines. The Defendant represents that its devices use no "chemicals" or "harsh chemicals" to clean CPAP machines. The Defendant markets its devices as "safe" for use to clean and protect CPAP machines. The Defendant represents that its devices use the same sanitizing process found in hospitals. The Defendant represents that the filter cartridges in the SoClean device convert "activated oxygen" back into "normal oxygen." The Defendant represents the SoClean device is a "closed system" and that no "activated oxygen" escapes the SoClean device. Ozone generated by the SoClean device alters the composition of the very CPAP machines that it is supposed to clean, causing damage to CPAP machines (including but not limited to foam components) and rendering the SoClean device essentially worthless. The representations by the Defendant about the use and levels of ozone, the lack of chemicals or harsh chemicals in the SoClean device and the properties of the SoClean device are false and misleading and have deceived Plaintiff and other consumers who have relied on such representations when purchasing and using the SoClean device. The Defendant continued to deny the effects of ozone associated with the SoCleaner device while at the same time reaping profits obtained through its non-disclosure and concealment, says the complaint. The Plaintiff is a consumer who purchased a SoClean device in a consumer transaction. SoClean tested, marketed, distributed, promoted and sold the SoClean device.[BN] The Plaintiff is represented by: Theodore H. Huge, Esq. THEODORE HUGE LAW FIRM, LLC 180 Spring Street Charleston, SC 29403 Phone: (843) 805-8031 Fax: (843) 636-3375 Email: ted@thehugelawfirm.com - and - Michael C. Rader, Esq. Edward "Kip" Robertson, Esq. Edward Chip Robertson, Esq. James P. Frickleton, Esq. BARTIMUS FRICKLETON ROBERTSON RADER, P.C. 4000 W. 114th St., Suite 310 Leawood, KS 66211-2298 Phone: (913) 266-2300 Fax: (913) 266-2366 Email: mrader@bflawfirm.com krobertson@bflawfirm.com crobertson@bflawfirm.com jimf@bflawfirm.com SOLDIER'S KABANA: Rowe Class Suit Seeks OT Pay Under FLSA & NYLL ---------------------------------------------------------------- DALE ROWE, on behalf of himself, individually, and on behalf of all others similarly-situated v. SOLDIER'S KABANA INC., and SOLDIER'S RESTAURANT BUFFET INC., and LORRETTA WILLIAMS, individually, and MARK WILLIAMS, individually, Case No. 1:22-cv-01492 (E.D.N.Y., March 17, 2022) is a civil action for damages and other redress based upon alleged willful violations that Defendants committed of Plaintiff's rights guaranteed to him by: (i) the overtime provisions of the Fair Labor Standards Act; (ii) the overtime provisions of the New York Labor Law; (iii) the NYLL's requirement that employers furnish employees with a wage notice containing specific categories of accurate information upon hire; (iv) the NYLL's requirement that employers furnish employees with a wage statement containing specific categories of accurate information on each payday, NYLL Section 195(3); and (v) the NYLL's requirement that employers not make unlawful deductions from employees' earned wages. The Plaintiff worked for Defendants -- two New York corporations that operate as a single enterprise to run a Brooklyn-based restaurant and the enterprise's two owners and day-to-day overseers - - as a cook, whom Defendants called a "night supervisor," which was a supervisory position in name only, from April 24, 2015, to August 24, 2020. According to the complaint, the Defendants failed to pay Plaintiff the overtime wages lawfully due to him under the FLSA and the NYLL. Specifically, the Defendants routinely required Plaintiff to work, and Plaintiff did work, in excess of 40 hours in a workweek, but paid the Plaintiff a flat weekly salary that operated by law to cover only Plaintiff's first forty hours of work in a week. The Defendants thus failed to pay Plaintiff at any rate of pay, let alone at the statutorily-required overtime rate of one and one half times his regular rate, for any hours that the Plaintiff worked in a week over 40. The Defendants further violated the NYLL by failing to provide Plaintiff with any wage notice upon his hire, let alone an accurate one, or with any wage statement on each payday, let alone an accurate statement, says the suit. The Defendants additionally deducted money from Plaintiff's earned wages that they claimed were taxes but then failed to pay that money to the government and retained it for their own use, thereby violating the NYLL's prohibition on employers making unlawful deductions from their employees' wages, and also constituting the common law tort of conversion. Defendants Kabana and Buffet were and are New York corporations with their principal place of business both located at 1444 Fulton Street, Brooklyn, New York 11216. Both entities are also registered with the New York State Department of State Corporation and Business Entity Database to receive service of process at that same address. Thus, Plaintiff and all FLSA Plaintiffs are allegedly victims of Defendants' pervasive practice of willfully refusing to pay their employees overtime compensation for all hours worked per workweek above forty, in violation of the FLSA.[BN] The Plaintiffs are represented by: Danielle Petretta, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 910 Franklin Avenue, Suite 200 Garden City, NY 11530 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 SONY ELECTRONICS: Can Compel Arbitration in Guerriero Class Suit ---------------------------------------------------------------- In the case, JOHN GUERRIERO, individually and on behalf of all others similarly situated, Plaintiff v. SONY ELECTRONICS INC., Defendant, Case No. 21 CV 2618 (VB) (S.D.N.Y.), Judge Vincent L. Briccetti of the U.S. District Court for the Southern District of New York granted the Defendant's motion to compel arbitration pursuant to the Federal Arbitration Act and strike the class allegations from the complaint. I. Background Plaintiff John Guerriero brings the putative class action claiming that a type of digital camera manufactured by Defendant Sony has a defective shutter. The Plaintiff resides in Yonkers, New York. He alleges the Defendant manufactures electronics, including the a7iii mirrorless digital camera. The Plaintiff alleges he purchased the Camera online in 2019. According to him, the Camera's shutter does not perform as promised and instead "fails relatively frequently." The Defendant contends every Camera "is packaged in a box alongside a hard copy of a one-year limited warranty." According to the defendant, the Limited Warranty includes the mandatory arbitration clause and class action waiver. It contends the Limited Warranty is also available on its website. According to the Defendant, it has no record the Plaintiff opted out of the arbitration provision. The Plaintiff commenced the putative class action on March 26, 2021, on behalf of all New Yorkers who purchased the Camera. Thereafter, the Defendant moved to compel arbitration in accordance with the Limited Warranty and strike the class allegations from the complaint. II. Discussion A. Motion to Compel Arbitration The Defendant contends the Plaintiff agreed to arbitrate this dispute. Judge Briccetti agrees. The Defendant has demonstrated the Plaintiff agreed to arbitration. It has demonstrated the arbitration provision was presented clearly and conspicuously to the Plaintiff. It has also shown the Plaintiff assented to the term "through conduct that a reasonable person would understand to constitute assent. Accordingly, the motion to compel arbitration must be granted. B. Motion to Strike Class Allegations The Defendant further contends arbitration must proceed on an individual basis and the class action allegations must be struck from the complaint. Again, Judge Briccetti agrees. He says, by assenting to the arbitration provision of the Limited Warranty, the Plaintiff also waived his right to participate in a class action. Thus, the complaint's class allegations must be struck and the Plaintiff must arbitrate the dispute on an individual basis. Accordingly, the motion to strike must be granted. III. Conclusion The motion to compel arbitration and strike the class allegations in the complaint is granted. The parties are ordered to arbitrate their dispute on an individual basis. The action is stayed pending arbitration. The Clerk is instructed to terminate the motion. The Clerk is further instructed to administratively close the case, without prejudice to either party moving by letter motion to reopen the case within 30 days of the conclusion of the arbitration proceedings. A full-text copy of the Court's March 11, 2022 Opinion & Order is available at https://tinyurl.com/mr3hy6c8 from Leagle.com. SOUTHWESTERN ENERGY: Underpays Site Safety Advisors, Polis Says --------------------------------------------------------------- JONATHAN M. POLIS, individually and for others similarly situated v. SOUTHWESTERN ENERGY COMPANY, Case No. 5:22-cv-00048-JPB (N.D. W.Va., March 11, 2022) is a class action brought by the Plaintiff to recover unpaid overtime wages and other damages under the Fair Labor Standards Act against the Defendant. Polis performed work for Southwestern as a site safety advisor from approximately January 2019 until August 2019. He and other similarly situated site safety advisors regularly worked for Southwestern over 40 hours each week but never received overtime compensation, says the suit. Southwestern Energy Company is a natural gas and natural gas liquids producer in the United States.[BN] The Plaintiff is represented by: Anthony J. Majestro, Esq. James S. Nelson, Esq. POWELL & MAJESTRO PLLC 405 Capitol Street, Suite P-1200 Charleston, WV 25301 Telephone: (304) 346-2889 Facsimile: (304) 346-2895 - and - Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Richard M. Schreiber, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77005 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com rschreiber@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com SPELLMANS MARINE: Tucker Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Spellmans Marine Inc. The case is styled as Henry Tucker, on behalf of himself and all other persons similarly situated v. Spellmans Marine Inc., Case No. 1:22-cv-02187 (S.D.N.Y., March 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Spellmans Marine -- https://www.spellmansmarine.com/ -- is a boat dealer in Hampton Bays, New York and has been creating the ultimate boating experience for all of Long Island since 1958.[BN] The Plaintiff is represented by: Bradly G. Marks, Esq. THE MARKS LAW FIRM, PC 155 East 55th St., Ste. 6a New York, NY 10022 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: brad@markslawpc.com SPIRIT AEROSYSTEMS: Dismissal of Consolidated Suit Under Appeal --------------------------------------------------------------- Spirit AeroSystems 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 15, 2022, that on February 10, 2020, February 24, 2020, and March 24, 2020, three separate private securities class action lawsuits were filed against the Company in the U.S. District Court for the Northern District of Oklahoma, its Chief Executive Officer, Tom Gentile III, former Chief Financial Officer, Jose Garcia, and former Controller (principal accounting officer), John Gilson. On April 20, 2020, the Class Actions were consolidated by the court and on July 20, 2020, the plaintiffs filed a Consolidated Class Action Complaint which added Shawn Campbell, the company's former Vice President for the 737NG and B737 Max program, as a defendant. Allegations in the Consolidated Class Action include (i) violations of Section 10(b) of the Securities Exchange Act of 1934, as amended and Rule 10b-5 promulgated thereunder against the company and Gentile, Garcia and Gilson, (ii) violations of Section 20(a) of the Exchange Act against the individual defendants, and (iii) violations of Section 10(b) of the Exchange Act and Rule 10b-5(a) and (c) promulgated thereunder against all defendants. The facts underlying the consolidated class action relate to the accounting process compliance independent review discussed in the company's January 30, 2020 press release and described under Management's Discussion and Analysis of Financial Condition and Results of Operations - Accounting Review in Part II, Item 7 of the Annual Report on Form 10-K for the year ended December 31, 2019, and its resulting conclusions. The company voluntarily reported to the SEC the determination that, with respect to the third quarter of 2019, the company did not comply with its established accounting processes related to potential third quarter contingent liabilities received after the quarter-end. On March 24, 2020, the Staff of the SEC Enforcement Division informed the company that it had determined to close its inquiry without recommending any enforcement action against the Company. In addition, the facts underlying the Consolidated Class Action relate to the company's disclosures regarding the B737 MAX grounding and Spirit's production rate (and related matters) after the grounding. On September 18, 2020, the company and individual defendants filed a motion to dismiss the consolidated class action. That motion was granted by the court on January 7, 2022, which denied leave to amend and dismissed the consolidated class action with prejudice. On February 4, 2022, the plaintiffs in the consolidated class action filed a Notice of Appeal to the Tenth Circuit Court of Appeals. Spirit AeroSystems Holdings is one of the largest independent non-original equipment manufacturer commercial aerostructures designers and manufacturers in the world. SPIRIT AEROSYSTEMS: Faces Securities Suit in Kansas Court --------------------------------------------------------- Spirit AeroSystems 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 15, 2022, that on October 5, 2020, a shareholder derivative lawsuit was filed against the company (as nominal defendant), all members of the company's Board of Directors, and Garcia and Gilson in the Eighteenth Judicial District, District Court of Sedgwick County, Kansas. Allegations in the Derivative Action 2 include (i) breach of fiduciary duty, (ii) waste of corporate assets, and (iii) unjust enrichment. The facts underlying the derivative action relate to the accounting process compliance independent review discussed in the company's January 30, 2020 press release and described under Management's Discussion and Analysis of Financial Condition and Results of Operations - Accounting Review in Part II, Item 7 of the Annual Report on Form 10-K for the year ended December 31, 2019, and its resulting conclusions. The company voluntarily reported to the SEC the determination that, with respect to the third quarter of 2019, the company did not comply with its established accounting processes related to potential third quarter contingent liabilities received after the quarter-end. On March 24, 2020, the Staff of the SEC Enforcement Division informed the company that it had determined to close its inquiry without recommending any enforcement action against the Company. In addition, the facts underlying the derivative action relate to the company's disclosures regarding the B737 MAX grounding and Spirit's production rate (and related matters) after the grounding. The derivative actions remain stayed at this point in time. The company and the individual defendants have and continue to deny the allegations in the derivative actions. Spirit AeroSystems Holdings is one of the largest independent non-original equipment manufacturer commercial aerostructures designers and manufacturers in the world. SPIRIT AEROSYSTEMS: Securities Suit in Oklahoma Remains Stayed -------------------------------------------------------------- Spirit AeroSystems 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 15, 2022, that on June 11, 2020, a shareholder derivative lawsuit was filed against the company (as nominal defendant), all members of the company's Board of Directors, and Garcia and Gilson in the U.S. District Court for the Northern District of Oklahoma. Allegations in the Derivative Action 1 include (i) breach of fiduciary duty, (ii) abuse of control, and (iii) gross mismanagement. The facts underlying the derivative action relate to the accounting process compliance independent review discussed in the company's January 30, 2020 press release and described under Management's Discussion and Analysis of Financial Condition and Results of Operations - Accounting Review in Part II, Item 7 of the Annual Report on Form 10-K for the year ended December 31, 2019, and its resulting conclusions. The company voluntarily reported to the SEC the determination that, with respect to the third quarter of 2019, the company did not comply with its established accounting processes related to potential third quarter contingent liabilities received after the quarter-end. On March 24, 2020, the Staff of the SEC Enforcement Division informed the company that it had determined to close its inquiry without recommending any enforcement action against the Company. In addition, the facts underlying the derivative action relate to the company's disclosures regarding the B737 MAX grounding and Spirit's production rate (and related matters) after the grounding. The derivative actions remain stayed at this point in time. The company and the individual defendants have and continue to deny the allegations in the derivative actions. Spirit AeroSystems Holdings is one of the largest independent non-original equipment manufacturer commercial aerostructures designers and manufacturers in the world. STRAIGHT PATH: Del. Ch. Continues Bid to Certify Class as to TAF ---------------------------------------------------------------- In the case, IN RE STRAIGHT PATH COMMUNICATIONS INC. CONSOLIDATED STOCKHOLDER LITIGATION, C.A. No. 2017-0486-SG (Del. Ch.), Judge Sam Glasscock, III, of the Court of Chancery of Delaware continued the Plaintiffs' Motion for Class Certification with respect to The Arbitrage Fund, with leave to supplement the record. I. Introduction The privilege of a member of a stockholder class to represent that class in a legal action is not a right. Among the attributes required to enjoy that privilege is a willingness to act as a fiduciary for the benefit of the class as a whole, and not for individual interests not shared with the class at large. That general rule has many permutations, but few more significant than that non-public information obtained as class representative must be used for the benefit of the class in the litigation, and not for purposes of trading on that information in securities for private gain. The Plaintiffs sought to certify two stockholders of Straight Path as lead representatives of the former stockholders of Straight Path. One of the stockholders has withdrawn from this application. II. Background Before the Court is a pending motion for class certification stemming from the sale of Straight Path to Verizon Communications, Inc., in 2018. Plaintiffs JDS1, LLC and The Arbitrage Fund ("TAF"), former stockholders of Straight Path, sought to certify a purported class for receipt of damages flowing from diverted merger consideration in connection with the Straight Path-Verizon sale in 2018 (the "Merger"). The Defendants opposed both the class and the appointments of JDS1, and TAF as the representative plaintiffs. JDS1 has withdrawn its application to so serve. The proposed class is defined as "all record and beneficial holders of Straight Path Class B Common Stock, as of Feb. 28, 2018 (the date of the consummation of the Merger), who received Merger consideration, together with their respective successors and assigns," subject to certain exceptions (the "Proposed Class"). Plaintiff JDS1 is an investment vehicle that held Straight Path Class B Common Stock at all pertinent times. It brought its original complaint against the Defendants, as well as against three directors of Straight Path (the "Special Committee Directors") on July 5, 2017.10 Seeking dismissal from the case, the Special Committee Directors made a "70-pages plus" proffer of confidential materials (the "Confidential Proffer") to JDS1 via counsel on July 21, 2017. Specifically, the counsel who received the Confidential Proffer were from the law firms Bernstein Litowitz Berger & Grossmann LLP ("BLBG") and Labaton Sucharow LLP. The Special Committee Directors were dismissed from the action without prejudice later that month. In the course of discovery, JDS1 indicated that it had a short position on IDT stock "at times," including dates in 2017, 2018, and early 2019. Plaintiff TAF is a mutual fund managed by an investment advisor. This same investment advisor manages certain other affiliates. TAF first purchased shares in Straight Path on May 8, 2017. It filed its original complaint via its counsel in a separate action on July 11, 2017.19 TAF's complaint did not name the Special Committee Directors as defendants. The counsel for JDS1 and TAF filed a Stipulation and Proposed Order for Consolidation on July 14, 2017, which designated JDS1 and TAF as "Co-Lead Plaintiffs," and designated BLBG, Labaton, and Entwistle & Cappucci LLP as the "Co-Lead Counsel." The order was granted on July 24, 2017. Following the receipt of the Confidential Proffer by certain, but not all, of the Co-Lead Counsel on July 21, 2017, TAF Affiliates purchased several short positions in IDT stock, and they sold IDT stock short at least once more in late 2017. TAF itself never traded in IDT, but both TAF and its affiliates did make several purchases in Straight Path. Ardell Howard moved to intervene in the case on Oct. 14, 2020 as an additional plaintiff. Per her declaration of Oct. 13, 2020, she owned shares of Straight Path "at the time of the announcement of the Merger and continued to hold such shares through the closing of the Merger." She further indicated in that declaration that she would adopt the operative amended complaint, filed Aug. 29, 2017 (the "Complaint"), and that "if called upon, she would also be prepared to serve as a lead plaintiff and/or class representative." Ardell has also represented that she has read and agrees to be bound by the confidentiality order entered in the case on April 18, 2019 (the "Confidentiality Order"). Judge Glasscock granted Ardell's motion to intervene on July 20, 2021, and she entered the case as an individual plaintiff. The litigation began on July 5, 2017. The Plaintiffs served the amended Complaint, containing four counts. One of the counts was mooted following the closing of the Merger, and three direct claims for breach of fiduciary duty or aiding and abetting breach of fiduciary duty against various defendants survive. The IDT Defendants and Davidi Jonas each filed a motion for summary judgment on July 6, 2021. Straight Path II denied both motions in full. Briefing on the Class Certification Motion began in January 2020 and ended in October 2021. Judge Glasscock held oral argument with respect to the Class Certification Motion on Nov. 9, 2021, and he deemed the matter fully submitted at the time the claims survived summary judgment in Straight Path II. JDS1 withdrew its request to serve as class representative on March 10, 2022. III. Analysis The Plaintiffs seek to certify the Proposed Class and to establish TAF as the lead plaintiff litigating this action for the Proposed Class. The IDT Defendants raised the question of whether either JDS1 or TAF is a suitable representative plaintiff on the basis of certain trades made in IDT and Straight Path stock after the initiation of the suit. They also attacked each potential representative plaintiff on the basis of purported discovery misconduct and various other individual allegations. JDS1 has withdrawn its motion to serve as class representative. 1. The Improper Trading Allegations Judge Glasscock need no longer address the allegations made against JDS1, which no longer seeks to be lead counsel. He does note that JDS1 was the original plaintiff prior to the consolidation of the suit and brought its complaint on July 5, 2017 while represented by its counsel Labaton and BLBG. That original complaint named as defendants the Special Committee Directors of Straight Path. Judge Glasscock opines that although there is a factual difference between trading in Straight Path and trading in IDT, the main inquiry must still be whether TAF and its affiliates traded on non-public information, as so doing would be incompatible with the circumspection expected of voluntary fiduciaries, and thus would make TAF an inappropriate lead plaintiff. He finds that the number and timing of trades in Straight Path alleged to have been undertaken by TAF and TAF Affiliates since the initiation of the litigation are, frankly, troubling in light of TAF's position as a volunteer fiduciary. Using non-public information obtained as a fiduciary for personal gain is not consistent "with the behavior expected of a self-designated fiduciary." Again, service as a class representative is not a right that inheres in ownership of stock; it is an equitable privilege extended by a court of equity to the extent compatible with the best interests of the class and of justice. Accordingly, Judge Glasscock holds that denial of a class representative status is no punishment, and requires only a finding by the court that such service is not in the interests of the class and of justice. However, the record is not sufficient to support such a finding. Again, if TAF seeks to move forward as the representative plaintiff in the action, Judge Glasscock will require an evidentiary hearing with submission of facts by the parties so that he may resolve the improper trading issue on a full record. 2. Ardell Howard as a Potential Lead Plaintiff Another path to class certification may exist. As noted at the outset, there is an intervenor-plaintiff in the case who has represented that, "if called upon," she would be prepared to serve as a lead plaintiff or class representative. Judge Glasscock additionally notes that the IDT Defendants have previously indicated they would want to conduct some discovery regarding Ardell as a class representative if she were to be named the lead plaintiff moving forward. He urges the Plaintiffs and Co-Lead Counsel to confer and determine their preferred route forward with respect to the Class Certification Motion. III. Conclusion Judge Glasscock's Memorandum Opinion does not address the Rule 23(a) factors of typicality, adequacy, commonality, and numerosity, or the Rule 23(b) framework, because at present no motion is pending naming an adequate lead plaintiff in light of whom he can assess certification of the Proposed Class. As such, it would be premature to consider these issues now. If necessary, he will take these concerns into consideration once the parties have informed him how they will proceed. For these reasons, the Class Certification Motion is continued with respect to TAF, with leave to supplement the record. The parties should confer and inform Judge Glasscock as to their preference for moving forward with respect to the Class Certification Motion. A full-text copy of the Court's March 11, 2022 Memorandum Opinion is available at https://tinyurl.com/23yhf7x5 from Leagle.com. Ned Weinberger -- nweinberger@labaton.com -- and Mark Richardson, of LABATON SUCHAROW LLP, in Wilmington, Delaware; OF COUNSEL: Jeroen van Kwawegen, Edward G. Timlin, and Alla Zayenchik, of BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP, in New York City; Vincent R. Cappucci and Joshua K. Porter -- jporter@entwistle-law.com -- of ENTWISTLE & CAPPUCCI LLP, in New York City, Attorneys for Plaintiffs JDS1, LLC and The Arbitrage Fund. Ned Weinberger and Mark Richardson, of LABATON SUCHAROW LLP, Wilmington, Delaware; OF COUNSEL: Jeroen van Kwawegen, Edward G. Timlin, and Alla Zayenchik, of BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP, in New York City, Attorneys for Intervenor-Plaintiff Ardell Howard. Rudolf Koch -- koch@rlf.com -- Kevin M. Gallagher, Daniel E. Kaprow, John M. O'Toole, and Melissa A. Lagoumis of RICHARDS, LAYTON & FINGER P.A., in Wilmington, Delaware; Thomas Ueble, of McCOLLOM D'EMILIO SMITH UEBLER LLC, in Wilmington, Delaware; OF COUNSEL: Jason Cyrulnik and Paul Fattaruso, of CYRULNIK FATTARUSO LLP, in New York City, Attorneys for Defendants IDT Corporation, Howard Jonas, and The Patrick Henry Trust. Kevin R. Shannon, Berton W. Ashman, Jr., Jacqueline A. Rogers, and David A. Seal, of POTTER ANDERSON & CORROON LLP, in Wilmington, Delaware, Attorneys for Davidi Jonas. TARGET CORP: Dominique-Tate Sues Over Benzene in Sanitizer Gel -------------------------------------------------------------- LA NITA M. DOMINIQUE-TATE, on behalf of herself and all others similarly situated, Plaintiff v. TARGET CORPORATION, Defendant, Case No. 2:22-cv-00473-JAM-DB (E.D. Cal., March 14, 2022) is brought against the Defendant for breach of express warranty, breach of implied warranty, unjust enrichment, fraud, violation of the Magnuson-Moss Warranty Act, the Drinking Water and Toxic Enforcement Act, California's Consumer Legal Remedies Act, False Advertising Law, and the Unfair Competition Law. The case arises from Defendant's alcohol-based Born Basic Anti-bac Hand Sanitizer gel which independent testing has recently revealed suffers from benzene contamination. Benzene, a harmful carcinogen, does not appear on the product label, on the ingredients list, in Defendant's advertisements, or otherwise. Despite Defendant's knowledge of the product's potential carcinogenicity, Defendant sold and continues to sell the product at its retail locations and on its website without providing consumers, including Plaintiff, with any additional information about its potential health risks, says the suit. Target Corporation is an American big box department store chain headquartered in Minneapolis, Minnesota.[BN] The Plaintiff is represented by: Gillian L. Wade, Esq. Sara D. Avila, Esq. Marc A. Castaneda, Esq. MILSTEIN JACKSON FAIRCHILD & WADE, LLP 10990 Wilshire Blvd., 8th Floor Los Angeles, CA 90024 Telephone: (310) 396-9600 E-mail: gwade@mjfwlaw.com savila@mjfwlaw.com mcastaneda@mjfwlaw.com - and - Ruben Honik, Esq. David Stanoch, Esq. HONIK LLC 1515 Market Street, Suite 1100 Philadelphia, PA 19102 Telephone: (267) 435-1300 E-mail: ruben@honiklaw.com david@honiklaw.com TESLA INC: Platt Sues Over Illegal Biometric Data Collection ------------------------------------------------------------ PETER PLATT, individually and on behalf of all similarly situated individuals, Plaintiff v. TESLA, INC., a Delaware corporation, Defendant, Case No. 2022LA000236 (Ill. Cir., 18th Jud., Dupage Cty., March 11, 2022) is a class action complaint brought by the Plaintiff against the Defendant for its violations of the Illinois Biometric Information Privacy Act. According to the complaint, the Defendant captured, collected, stored, used, and otherwise obtained Plaintiff's and the Class members' biometrics through its biometrically enabled in-cabin cameras without obtaining their informed written consent and without complying with BIPA. Specifically, in an effort to facilitate its Autopilot features and help market its self-driving capability to boost sales, the Defendant collects individuals' biometrics in the form of their facial geometry so that it can verify and make sure that individuals are paying attention to the road while using its Autopilot advanced driver assistance system and its premium Full Self Driving system, says the suit. Tesla Inc. is an electric vehicle manufacturer and technology company based in the United States.[BN] The Plaintiff is represented by: Eugene Y. Turin, Esq. Timothy P. Kingsbury, Esq. Andrew T. Heldut, Esq. MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Fl. Chicago, IL 60601 Telephone: (312) 893-7002 E-mail: eturin@mcgpc.com tkingsbury@mcgpc.com aheldut@mcgpc.com TEVA PHARMACEUTICALS: Fund Sues Over Copaxone Market Monopoly ------------------------------------------------------------- LABOR-MANAGEMENT HEALTHCARE FUND, on behalf of itself and all others similarly situated, Plaintiff v. TEVA PHARMACEUTICALS INDUSTRIES LTD., TEVA PHARMACEUTICALS USA, INC., TEVA NEUROSCIENCE, INC., and TEVA SALES & MARKETING, INC., Defendants, Case No. 2:22-cv-01345 (D.N.J., March 11, 2022) is a class action arising out of Teva's alleged anticompetitive scheme to unlawfully thwart generic competition in the United States and its territories for its prescription drug Copaxone in violation of Section 16 of the Clayton Act. According to the complaint, Teva continued its scheme both before and after Mylan Pharmaceuticals and Sandoz introduced a generic version of Copaxone 40 mg by employing multiple tactics to prevent the uptake of generic versions of Copaxone following a multi-pronged strategy to delay generic competition, including through litigation and shifting the market from its 20 mg product to a 40 mg product. Absent the Defendants' unlawful conduct, generic manufacturers of Copaxone would have been able to fairly compete with Teva in a full and timely manner, and Plaintiff and Class members, which includes "third-party payors" such as health insurers and self-funded health plans, would have substituted lower-priced generic Copaxone for nearly all of their Copaxone purchases and paid lower prices for their branded Copaxone purchases. The Plaintiff and Class members would have purchased lower-priced Copaxone in substantially larger quantities. Instead, the Defendants' unlawful conduct allowed Teva to reap substantial amounts in ill-gotten gains and prevented uptake of the 40mg generic GA versions which has cost Plaintiff and Class members hundreds of millions of dollars in overcharge damages, says the suit. Plaintiff Labor-Management Healthcare Fund is a self-insured health plan based in New York. Teva Pharmaceuticals Industries Ltd. is an Israeli corporation which owns subsidiaries, including Teva Pharmaceuticals USA, Inc., Teva Neuroscience, Inc. and Teva Sales & Marketing, Inc., which do business in the United States. Teva Ltd. has promoted itself as the largest seller of generic drugs in the United States with billions of dollars in revenue.[BN] The Plaintiff is represented by: Christopher A. Seeger, Esq. SEEGER WEISS LLP 55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Telephone: (973) 639-9100 Facsimile: (973) 679-8656 E-mail: CSeeger@seegerweiss.com - and - Kenneth A. Wexler, Esq. Justin N. Boley, Esq. Tyler Story, Esq. WEXLER BOLEY ELGERSMA LLP 55 W. Monroe Street, Suite 3300 Chicago, IL 60603 Telephone: (312) 346-2222 E-mail: kaw@wbe-llp.com jnb@wbe-llp.com tjs@wbe-llp.com - and - Arthur N. Bailey, Esq. RUPP BAASE PFALZGRA CUNNINGHAM LLC 111 West 2nd Street, Suite 1100 Jamestown, NY 14701 Telephone: (716) 664-2967 E-mail: bailey@ruppbaase.com TITLEMAX OF NEW MEXICO: Loses Judgment on Pleadings Bid in Romero ----------------------------------------------------------------- In the case, JESSE ROMERO, Plaintiff v. TITLEMAX OF NEW MEXICO, INC., Defendant, Case No. CV 17-00775 KG/SCY (D.N.M.), Judge Kenneth J. Gonzales of the U.S. District Court for the District of New Mexico issued a Memorandum Opinion and Order: 1. denying TitleMax's First Motion for Partial Summary Judgment as to First, Second Third, and Fourth Causes of Action in the Second Amended Complaint based on Claim Preclusion (Res Judicata) and Issue Preclusion (Collateral Estoppel); 2. denying TitleMax's Third Motion for Partial Summary Judgment based on Judicial Estoppel as to the First, Second, Third and Fourth Causes of Action in the Second Amended Complaint; 3. granting TitleMax's Second Motion for Partial Summary Judgment as to the Fifth Cause of Action in Plaintiff's Second Amended Complaint for Conversion; and 4. denying TitleMax's First Rule 12(c) Motion for Judgment on the Pleadings as to Plaintiff's Claim for Punitive Damages. I. Introduction Plaintiff Jesse Romero entered into three successive loan agreements with Defendant TitleMax. Each loan was secured by the Plaintiff's car. The Plaintiff's First Amended Complaint (FAC) alleged that all three loans were unconscionable under statutory and common law. After the Tenth Circuit resolved a dispute between the parties about whether the Plaintiff could validly opt out of arbitration on the third loan, the Plaintiff's claims on the first two loans were arbitrated. The resulting Arbitration Award found in favor of the Defendant. Now before the Court is the Plaintiff's Second Amended Complaint (SAC), which focuses only on the third loan. The SAC repeats the same statutory and common-law unconscionability claims and adds a conversion claim. The Defendant has filed four motions asking for either summary judgment or judgment on the pleadings on all five counts. In its Preclusion and Judicial Estoppel Motions, the Defendant argues that the Tenth Circuit decision and the Arbitration Award prevent further litigation. Its Conversion Motion contends that there are no genuine issues of material fact because it lawfully accepted and retained insurance proceeds distributed after the totaling of the Plaintiff's car. The Defendant's fourth motion asks the Court for judgment on the pleadings on the Plaintiff's punitive damages claim. All four Motions are fully briefed. II. Background The Plaintiff obtained three loans from the Defendant. All three loans were secured with the Plaintiff's vehicle, a Jaguar, and all had the same material terms, headings, clauses, and title. The loans differed only in their amounts, identifying loan numbers, interest rates, and dates signed. Each loan agreement had a "Waiver of Jury Trial and Arbitration Provision." In June 2018, the Plaintiff defaulted on Loan 3. On April 8, 2019, the Jaguar, which was insured, was totaled in an accident. The Defendant was a lienholder on the vehicle. The insurance company paid the insurance proceeds totaling $2073.54 to the Defendant as lienholder. The proceeds did not cover all sums owed on Loan 3 and a balance of $403.23 remained, which the Defendant wrote off, completely releasing the Plaintiff of any future monetary loan obligations. The SAC includes four unconscionability claims. These claims are substantively the same as the claims in the FAC. Count I and Count II allege violations of NMUPA which prohibits "unfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce." Count I alleges that Debtor engaged in an unconscionable trade practice in "the extension of credit or the collection of debts" in violation of Sections 57-12-2(E)(1). The Plaintiff asserts that Defendant violated Section 57-12-2(E)(1) by convincing Plaintiff to take Loan 3 even though it was to his financial detriment. Count II alleges that the Defendant's extended credit in a manner that "results in a gross disparity between the value received by a person and the price paid" in violation of Section 57-12-2(E)(2). The Plaintiff argues that the Defendant's loans were oversecured, charging an interest rate ten times more than traditional lending institutions. The Defendant's next two counts allege that it engaged in unconscionable practices prohibited by the common law. Count III focuses on procedural unconscionability, which "examines the particular factual circumstances surrounding the formation of the contract, including the relative bargaining strength, sophistication of the parties, and the extent to which either party felt free to accept or decline terms demanded by the other." The Plaintiff argues that the Defendant's loans were procedurally unconscionable because (1) "Defendant conducts its business by way of contracts of adhesion," (2) "conducts no underwriting of any kind," and (3) "engages in business practices intentionally designed to trap its customers." Count IV alleges substantive unconscionability which scrutinizes "the legality and fairness of the contract terms themselves." The Plaintiff alleges Loan 3 was substantively unconscionable because it was (1) "oversecuritized," (2) "there was no justification, legal or otherwise for the high interest rates the Defendant charges," and (3) the "Defendant's amortization of its loans in conjunction with the number of rollovers in which the Defendant knows or should know a typical borrower will engage guarantee that the Defendant's borrowers receive very little value." Count V alleges that the Defendant is liable for conversion, because after the Plaintiff's car was totaled, the Defendant received the insurance proceeds. The Plaintiff asks for rescission of the third loan agreement, restitution to him of amounts paid on Loan 3, restitution to him for the insurance proceeds Defendant received for his vehicle, treble damages, punitive damages, permanent injunctive relief, costs and attorney's fees and prejudgment and post-judgment interest. III. Analysis A. Preclusion Motion The Defendant's Preclusion Motion asks for summary judgment on all of the Plaintiff's unconscionability claims. The Defendant argues that the doctrines of either claim preclusion or issue preclusion, also known as res judicata or collateral estoppel, prevent further litigation, because the Arbitration Award necessarily decided all factual and legal issues relating to Loan 3. The Plaintiff counters that the Arbitration Award does not make findings as to Loan 3 and "does not bind or even guide the Court in its independent analysis of that third loan." B. Judicial Estoppel Motion The Defendant's Judicial Estoppel Motion argues that either the judicial estoppel doctrine or the law of the case doctrine prevents the Plaintiff from asserting that Loan 3 is a rollover or refinancing loan and asks that all relating SAC allegations be stricken on that basis. It argues that the Plaintiff took one position in an interlocutory appeal before the Tenth Circuit that is now inconsistent with the position he has taken before the Court. At issue in the appeal before the Tenth Circuit was whether the Plaintiff could exercise his right to opt out of arbitration as provided in a clause in each of his three loans or whether the loans were interdependent, such that a failure to opt out of the first loan barred him from opting out of successive loans. The Defendant contended that because the purpose of each successive loan was to "refinance the previous loan," the loans were interdependent and the Plaintiff's failure to opt out of Loan 1 or Loan 2 barred him from opting out of Loan 3. In contrast, the Plaintiff argued that each loan was a separate new loan. The Defendant interprets the Plaintiff's argument as an assertion "that Loan 3 WAS NOT a refinance of Loan 2 which is inconsistent with his legal position that Loan 3 IS now a refinance of Loan 2." C. The Conversion Motion After the Plaintiff's insured car was totaled in an accident, the insurance company paid the policy proceeds to the Defendant, based on its security interest in the vehicle. The Plaintiff argues that in accepting the proceeds, the Defendant committed the tort of conversion. Conversion is "'the unlawful exercise of dominion and control over property belonging to another in defiance of the owner's rights, or acts constituting an unauthorized and injurious use of another's property, or a wrongful detention after demand has been made.'" The Defendant seeks summary judgment on this claim. As a matter of law, it states, its perfected interest in the car coupled with the outstanding balance on Plaintiff's loan gave Defendant a right to the insurance proceeds. D. Punitive Damages Motion The Plaintiff's two statutory claims under NMUPA seek treble damages whereas the Plaintiff's two common-law conscionability claim ask for punitive damages. The Defendant argues that the SAC relies on the same conduct for all claims. In Hale v. Basin Motor Co., 795 P.2d 1006 (N.M. 1990), the New Mexico Supreme Court held that it was improper for a plaintiff to recover both statutory treble damages and punitive damage for the same conduct. As a result, the Defendant's Punitive Damage Motion argues that the Plaintiff has not plausibly stated a claim for common-law punitive damages. The Plaintiff disagrees with Defendant's interpretation of Hale and argues that Hale recognized that a party could not pursue duplicate damages, "a party may pursue overlapping claims through trial and must only elect an award after it has been made." Plaintiff correctly reads Hale. IV. Conclusion After considering the parties' briefing, the record of the case, including the Arbitrator Award, and the applicable law, Judge Gonzales finds that the Plaintiff reserved his right to pursue his Loan 3 claims in district court. Because the Plaintiff chose a different forum for Loan 3, the Plaintiff did not agree to, nor did the Arbitrator have the jurisdiction to consider matters relating to Loan 3. Judge Gonzales further finds that the Plaintiff did not have a full and fair opportunity to litigate Loan 3, so the application of either claim preclusion or issue preclusion to his Loan 3 unconscionability claims would be fundamentally unfair. Judge Gonzales holds that the Defendant has not shown that the doctrines of judicial estoppel or law of the case are relevant to the Court's determination about whether Loan 3 was a refinancing or rollover loan. The Tenth Circuit did not make any findings in Defendant's appeal that conclusively decided that issue. Furthermore, the Plaintiff did not advocate inconsistent positions regarding the purpose of the loan. As the doctrines are inapplicable, Judge Gonzales will deny the Defendant's Judicial Estoppel Motion. To prove conversion, a plaintiff must establish that a defendant wrongfully or illegally holds or retains property of another. There is no dispute that the Defendant had a perfected security interest in the Plaintiff's car which gave him a right to insurance proceeds after the vehicle was totaled. And the record indicates that the Plaintiff never demanded that Defendant turn over the proceeds to him. Rather, the evidence showed that Defendant acquiesced to the remittance of those proceeds to the Plaintiff. There are no material facts in dispute, and Judge Gonzales will grant the Defendant's Conversion Motion. The Defendant's Punitive Damages Motion asks the Court to find that the Plaintiff has not made a plausible punitive damages claim because should the Plaintiff be successful on both his statutory and common-law claims, he is proh ibited from receiving duplicative awards. But, Judge Gonzales finds that the Defendant's Motion does not acknowledge that while the Plaintiff cannot accept two awards based on the same conduct, the Plaintiff may pursue both remedies. Only at the conclusion of the trial with a successful verdict on both claims, must the Plaintiff make a choice as to remedies. For this reason, Judge Gonzales will deny the Defendant's Punitive Damages Motion. For these reasons, (i) TitleMax's First Motion for Partial Summary Judgment as to First, Second Third, and Fourth Causes of Action in the Second Amended Complaint based on Claim Preclusion (Res Judicata) and Issue Preclusion (Collateral Estoppel) is denied; (ii) TitleMax's Third Motion for Partial Summary Judgment based on Judicial Estoppel as to the First, Second, Third and Fourth Causes of Action in the Second Amended Complaint is denied; (iii) TitleMax's Second Motion for Partial Summary Judgment as to the Fifth Cause of Action in Plaintiff's Second Amended Complaint for Conversion is granted; and (iv) TitleMax's First Rule 12(c) Motion for Judgment on the Pleadings as to Plaintiff's Claim for Punitive Damages is denied. A full-text copy of the Court's March 15, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/23yfd56m from Leagle.com. TOOTSIE ROLL: Stipulation to Modify Schedule in Maisel OK'd ----------------------------------------------------------- In the class action lawsuit captioned as ELIZABETH MAISEL, v. TOOTSIE ROLL INDUSTRIES, LLC, Case No. 3:20-cv-05204-SK (N.D. Cal.), the Hon. Judge Sallie Kim entered an order granting stipulation to modify schedule as follows Current Date New Date -- Plaintiff's class Cert. April 8, 2022 July 7, 2022 motion: -- Defendant's class Cert. May 9, 2022 Aug. 8, 2022 opposition: -- Plaintiff's Class Cert. June 9, 2022 Sept. 7, 2022 Reply: -- Class Cert. Hearing: June 20, 2022 Sept. 19, 2022 Tootsie Roll is an American manufacturer of confectionery. A copy of the Court's order dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3IlS8SB at no extra charge.[CC] TUBESCIENCE USA: Faces Worel Suit Over Retaliatory Termination -------------------------------------------------------------- MINDY WOREL, individually and on behalf of all others similarly situated, Plaintiff v. TUBESCIENCE USA, INC. and DOES 1 through 50, inclusive, Defendant, Case No. 22STCV09630 (Cal. Super., Los Angeles Cty., March 18, 2022) is a class action against the Defendant for violations of the California Civil Code, the California Public Policy, the California Labor Code, and the California's Business and Professions Code including fraudulent inducement, breach of contract, unlawful retaliation, wrongful termination, failure to timely pay wages, failure to provide accurate wage statements, waiting time penalties, and unfair business practices. The Plaintiff was hired by the Defendant as a lead recruiter on or around September 8, 2020 until her termination on or around January 22, 2021 following her complaints regarding the company's underpayment of her wages and violations of applicable labor laws. TubeScience USA, Inc. is a film production company, with its principal place of business located at 655 S. Santa Fe Ave., Los Angeles, California. [BN] The Plaintiff is represented by: C. Genevieve Jenkins, Esq. Zainah Alfi, Esq. EXCELSIS LAW, P.C. 1901 Avenue of the Stars, 2nd Floor Los Angeles, CA 90067 Telephone: (213) 340-0300 Facsimile: (213) 340-0200 E-mail: cgjenkins@excelsislaw.com TYSON FOODS: Tenth Circuit Affirms Dismissal of Thornton's Claims ----------------------------------------------------------------- In the case, ROBIN G. THORNTON; MICHAEL LUCERO, on behalf of themselves and other similarly situated, Plaintiffs-Appellants v. TYSON FOODS, INC.; CARGILL MEAT SOLUTIONS, CORP.; JBS USA FOOD COMPANY; NATIONAL BEEF PACKING COMPANY, LLC, Defendants-Appellees, RANCHERS-CATTLEMEN ACTION LEGAL FUND, UNITED STOCKGROWERS OF AMERICA; PUBLIC JUSTICE, Amici Curiae, Case No. 20-2124 (10th Cir.), the U.S. Court of Appeals for the Tenth Circuit affirmed the district court's order dismissing plaintiffs' complaints. I. Introduction Plaintiffs-Appellants Robin Thornton and Michael Lucero allege that the Defendants-Appellees use deceptive and misleading labels on their beef products. In particular, the Plaintiffs contend that the "Product of the U.S.A." label on the Defendants' beef products is misleading and deceptive in violation of New Mexico law because the beef products do not originate from cattle born and raised in the United States. But the federal agency tasked with ensuring that meat labels are not misleading or deceptive preapproved the labels at issue. And critically, the governing federal statutory scheme -- the Federal Meat Inspection Act (FMIA), 21 U.S.C. Sections 601-695 -- includes an express preemption provision that prohibits states from imposing any "labeling requirements in addition to, or different than" the federal requirements. In seeking to establish that the Defendants' federally approved labels are nevertheless misleading and deceptive under state law, the Plaintiffs aim to impose labeling requirements that are different than or in addition to the federal requirements. Accordingly, the Tenth Circuit concludes that the Plaintiffs' deceptive-labeling claims are expressly preempted by federal law. It further agrees with the district court that the Plaintiffs fail to state a claim for false advertising. II. Background Thornton is a consumer who purchased the Defendants' beef from various retail stores. She filed a class-action complaint in state court against the Defendants, alleging that their labels deceived her and other similarly situated consumers into paying higher prices for beef based on the mistaken belief that it originated from cattle born and raised in this country. Lucero is a "producer of beef cattle with a multi-generational history of ranching in New Mexico." He filed a separate class-action complaint, alleging that he and other similarly situated ranchers are paid less for their domestic cattle as a result of the Defendants' conduct. According to both complaints, since 2015, the Defendants have imported live cattle from other countries, slaughtered and processed the cattle here, and labeled the resulting beef products as "Products of the USA." The Defendants place the same "Product of the USA" label on already-slaughtered beef that they import into this country. The Plaintiffs allege that these labeling practices are misleading, fraudulent, and deceptive under New Mexico law. Accordingly, they bring state-law claims for unjust enrichment and violation of the New Mexico Unfair Practices Act (UPA), Sections 57-12-1 to 57-12-26. Thornton additionally asserts a breach-of-express-warranty claim, and Lucero sought to amend his complaint to replace his UPA claim with a claim under the New Mexico Antitrust Act, Section 57-1-1 to 57-1-19. After removing both cases to federal court, the Defendants moved to dismiss. The district court granted the motions and denied Lucero's motion to amend as futile, concluding that federal preemption barred all the Plaintiffs' claims, including the claim that Lucero sought to add. It alternatively concluded that, for various reasons, the Plaintiffs failed to state a claim under any of their theories of liability, including failing to state a false-advertising claim. It also declined to abstain from exercising jurisdiction under the primary-jurisdiction doctrine. The Plaintiffs appeal each ruling. The Tenth Circuit reviews de novo. III. Analysis A. Labeling Claims The Plaintiffs argue that the district court erred in dismissing their state-law labeling claims as preempted by federal law. First, they urge the Tenth Circuit to apply a presumption against preemption. Second, they argue that because Section 678 allows states to exercise concurrent jurisdiction to prevent misbranding and because they have alleged misbranding, their claims are not preempted. Third, the Plaintiffs next suggest that because the label "Product of the U.S.A." is optional, rather than mandatory, their claims are not preempted. Finally, the Plaintiffs next attempt to analogize Section 678 to the preemption provision in the Federal Cigarette Labeling and Advertising Act (FCLAA). In sum, the Tenth Circuit holds that each of the Plaintiffs' state-law labeling claims -- unjust enrichment, breach of warranty, violation of the UPA, and violation of state antitrust law -- attempt to establish a labeling requirement different than that imposed and approved by the USDA and the FSIS under federal law. These claims are therefore preempted under Section 678,11 and the Tenth Circuit affirms the district court's decision on that ground, without reaching its alternative holdings or the Plaintiffs' various challenges to those alternative holdings. B. False-Advertising Claims The district court dismissed the Plaintiffs' false-advertising claims for several reasons, including that the complaint alleged "third parties and not the Defendants themselves produced the false advertisements." On appeal, the Plaintiffs do not dispute the district court's assessment that defendants did not produce the allegedly false advertisements; instead, they argue that the district court erred by failing to join those third parties as indispensable parties. But this is not an issue of indispensable parties, the Tenth Circuit holds. It is an issue of the Plaintiffs' inadequate pleading. As the Defendants point out, the complaints barely reference advertising (each use the word "advertising" only twice, in complaints that are over 20 pages long and include over 65 numbered paragraphs) and include only conclusory assertions regarding the Defendants' participation in such advertising. The complaints also each include a single paragraph composed of pasted images of labels and advertising, images that appear to show that the advertising was created by third-party retailers, not defendants. And again, the Plaintiffs do not challenge the district court's conclusion that they failed to allege defendants engaged in false advertising; nor do they rebut, in their reply brief, the Defendants' similar assertion on appeal. Thus, the Tenth Circuit concludes that the Plaintiffs' complaints do not state a false-advertising claim against the Defendants, and it affirms the district court's dismissal of the false-advertising claims on that basis. IV. Conclusion Because the Plaintiffs' state-law claims are preempted by federal law and because they fail to state a claim against the Defendants for false advertising, the Tenth Circuit affirmed the district court's orders dismissing their complaints and denying leave to amend as futile. As a final matter, it granted the motion to file an amicus brief. A full-text copy of the Court's March 11, 2022 Order is available at https://tinyurl.com/3tx2mvm8 from Leagle.com. A. Blair Dunn -- abdunn@ablairdunn.com of Western Agriculture, Resource And Business Advocates, LLP (Marshall J. Ray of Law Office of Marshall J. Ray, with him on the briefs), in Albuquerque, New Mexico, for the Plaintiffs-Appellants. Aaron D. Van Oort -- aaron.vanoort@faegredrinker.com -- (Tyler A. Young -- tyler.young@faegredrinker.com -- Michael M. Sawers -- michael.sawers@faegredrinker.com -- and Martin J. Demoret, with him on the brief), of Faegre Drinker Biddle & Reath LLP, in Minneapolis, Minnesota, and in Des Moines, Iowa, for the Defendants-Appellees. Leah M. Nicholls, David S. Muraskin, Public Justice, P.C., in Washington, D.C., for Amici Curiae. U.S. BANCORP: $250K FLSA Settlement in Jackson Suit Wins Approval ----------------------------------------------------------------- In the case, JENNIFER JACKSON, Individually and on behalf of all others similarly situated, Plaintiffs v. U.S. BANK NATIONAL ASSOCIATION, Defendants, Case No. 20-2310-EFM (D. Kan.), Judge Eric F. Melgren of the U.S. District Court for the District of Kansas granted the Plaintiff's Unopposed Motion for Approval of FLSA Settlement Agreement. I. Background Plaintiff Jackson brings the collective action against the Defendants U.S. Bancorp and U.S. National Bank Association under the Fair Labor Standards Act, 29 U.S.C. Section 201, et seq. ("FLSA"). The Plaintiff commenced the collective/class action on June 24, 2020. The Court granted the Parties' Joint Stipulation Regarding Conditional Collective Action Certification on Nov. 10, 2020, and ordered that notice be sent to "all hourly call-center employees who worked for U.S. Bancorp and/or U.S. Bank National Association in positions that make and/or take queued outbound and/or inbound customer calls, anywhere in the United States, at any time from Dec. 11, 2017 through the final disposition of this matter." The Order expressly granted conditional certification "only for purposes of facilitating a potential prompt and efficient resolution of the matter," and rendered no judgment on whether the call-center employees were similarly situated. Since then, 1,140 persons have filed consent forms to opt in to the collective action. Combined with the seven individuals who opted in to companion litigation, there are 1,147 members of the Settlement Collective. The Parties have engaged in extensive litigation, including contesting the appropriate scope of discovery. The discovery, formal and informal, has been extensive. Plaintiff Jackson also served a full set of written discovery on the Defendants. The Defendants have served approximately 248 sets of formal written discovery in return. Each opt-in Plaintiff has been required to complete a written survey for the Defendants, and the Defendants have deposed Plaintiff Jackson and nine opt-in Plaintiffs. The Parties engaged in extensive arms-length negotiations before entering into a Nov. 30, 2021 Memorandum of Understanding ("MOU") regarding the resolution of the matter that addressed the principal terms of the agreement between them. On Jan. 25, 2022, the Parties executed their formal Settlement Agreement. During the negotiations, the parties exchanged substantial data showing the days and weeks worked and compensation received by Plaintiff Jackson and the Settlement Collective members, including extensive documentation relating to the Defendants' practices, members' job duties, and the Defendants' efforts to comply with the FLSA and related state wage and hour laws. Based on this data, the parties created damages calculations and exchanged numerous offer and demand communications over a two-month period. The Agreement provides for the following settlement: Gross Settlement Amount - $250,000; Collective Counsel's Attorneys' Fees and Costs - $100,000; and Plaintiff Jackson's Service Award - $2,500. Under the settlement, each member will receive a pro rata allocation of the Net Settlement Amount based on the number of workweeks worked by that member during the applicable time period. The Net Settlement Amount is divided into individual payments to each Settlement Collective Member, including: (1) a $25 base award, and (2) a pro rata share of the Net Settlement Amount less the base award, derived from the number of weeks worked within the period of Dec. 11, 2017 to the date of the order approving the settlement. The parties estimate that members will receive an average award of around $120. Plaintiff Jackson also executed an Individual Release Agreement in her role as Named Plaintiff, and in further consideration for her Service Award. The Settlement Agreement expressly refrains from any resolution of the propriety of collective treatment of the action under the FLSA. The Parties further agree that the Settlement Agreement does not constitute a determination or admission that any group of similarly situated employees exists to maintain a collective action under the FLSA, and in the event that the Settlement Agreement or a subsequent settlement in the Lawsuit by the Parties is not approved by the Court, the Parties agree that they will return to the status quo ante and that the Defendant may argue that collective treatment is not proper under the FLSA. II. Analysis After reviewing the parties' joint submission, Judge Melgren concludes that the Settlement Agreement should be approved. He finds that (i) the settlement resolves a bona fide dispute; (ii) the results of the settlement are fair and reasonable; (iii) the settlement resulted after extensive negotiations over a two-month period; (iv) the Settlement Agreement provides for reasonable attorneys' fees ($100,000 is 40% of the Gross Settlement Amount); and (v) the Settlement Agreement includes a $2,500 Incentive Award to Named Plaintiff Jackson which is within the range of similar incentive awards. III. Disposition For these reasons, Judge Melgren granted the Plaintiffs' Unopposed Motion for Approval of FLSA Settlement Agreement. The Settlement Agreement is approved, including but not limited to (a) the allocation formula by which the Individual Settlement Payments to Plaintiffs will be determined; (b) the time-line as set forth in the Settlement Agreement; (c) the retention of Rust Consulting, Inc., as the settlement administrator, (d) the Collective Counsel's Attorney's Fees and Costs; and (e) the Service Award to Named Plaintiff Jackson. The Individual Release Agreement between Named Plaintiff Jackson and Defendants (Exhibit A(2) to the Settlement Agreement) is approved. Judge Melgren dismissed with prejudice the Plaintiffs listed in Exhibit A(1) to the Settlement Agreement and the action. Without affecting the finality of the Order in any way, the Court retains continuing and exclusive jurisdiction over the action for the purpose of administration and enforcement of the Settlement Agreement. A full-text copy of the Court's March 11, 2022 Memorandum & Order is available at https://tinyurl.com/ythk2z83 from Leagle.com. UMPQUA BANK: Must File Bid for Summary Judgment by May 5 -------------------------------------------------------- In the class action lawsuit captioned as SHELA CAMENISCH, et al., v. UMPQUA BANK, Case No. 3:20-cv-05905-RS (N.D.Cal.), the Hon. Judge Richard Seeborg entered an order that the defendant may file its motion for summary judgment until May 5, 2022, and set it for hearing on June 9, 2022. The Court said, "The Defendant has filed an administrative motion asking for a briefing schedule to be set that will allow its planned motion for summary judgment to be heard on June 9, 2022, the same date set for plaintiff's motion for class certification. In the event plaintiffs would like to have more than the two weeks provided by the rules to prepare their opposition to any such motion, the parties may stipulate to any extended briefing schedule, as long as there is at least two weeks between the filing of the reply and the hearing date." Umpqua Bank, is a financial holding company based in downtown Portland, Oregon, United States. A copy of the Court's order dated March 3, 2022 is available from PacerMonitor.com at https://bit.ly/3terNBI at no extra charge.[CC] UNIFUND CCR: Court OK's Compliance With Final Order in Rule Suit ---------------------------------------------------------------- In the lawsuit titled BETH RULE AND JENNIFER RIEDY, Plaintiffs v. UNIFUND CCR, LLC, Defendant, Case No. 2:20-cv-00990-MPK (W.D. Pa.), Magistrate Judge Maureen P. Kelly of the U.S. District Court for the Western District of Pennsylvania grants the parties' Joint Motion to Approve Compliance with Final Order and Judgment and Class Action Settlement Agreement. The Court approves Unifund's compliance with the Final Order and Judgment and Class Action Settlement Agreement. Unifund's proposal for resolving the issue with the Excluded Persons is approved. The Plaintiffs and Unifund will notify each of the Excluded Persons of the relief described in Paragraph 11 of the Motion in a letter in substantially the same form as Exhibit B to the Motion. The Plaintiffs and Unifund will file a Stipulation of Dismissal dismissing the case with prejudice once the letters have been sent to the Excluded Persons. A full-text copy of the Court's Order dated March 7, 2022, is available at https://tinyurl.com/a7aa7tde from Leagle.com. UNITED AIRLINES: Voluntary Separation Program Deceptive, Says Suit ------------------------------------------------------------------ DONNA LOUCKS, ROXANN MERLINI, and JO GAWLER, individually and on behalf of all others similarly situated, Plaintiff v. UNITED AIRLINES, INC., UNITED AIRLINES 36-MONTH SUPPLEMENTAL BENEFIT PLAN, and UNITED AIRLINES VOLUNTARY SEPARATION LEAVE PROGRAM, Defendants, Case No. 2:22-cv-01604 (C.D. Cal., March 10, 2022) arises from the Defendants' wrongful denial of the benefit of the United Airlines Frontline Voluntary Separation Leave program to Plaintiffs and other similarly situated former employees, in violation of the Employee Retirement Income Security Act of 1974. According to the complaint, as part of its effort to reduce its workforce, United promised its employees that if they retired and within three years after it offered a voluntary separation program, those employees would receive benefits under that program if those benefits were superior to what the employees had received at retirement. As a further inducement to employees to participate in "early out" programs or otherwise simply retire if they were eligible to do so, on August 17, 2017, a company-wide letter was issued by Oscar Munoz, then United's CEO. The letter promised that if United offered "an early out within 36 months after you retire, you would be eligible for the financial benefits of the program even after retiring." Plaintiffs Loucks, Merlini, and Gawler, as well as the Class of similarly situated individuals, retired from United within the 36 months preceding January 21, 2021, but were denied the benefits of the VSL program. United asserted the VSL program was not an "early out" program and that, therefore, the Letter was inapplicable. However, in both form and substance, except for the greater benefits offered, the VSL program was identical to the VSP1 and VSP2 voluntary separation programs offered by United between August 17, 2017, and January 21, 2021, both of which were considered early out programs, added the suit. United Airlines, Inc. provides commercial airline services.[BN] The Plaintiffs are represented by: Jeffrey Lewis, Esq. KELLER ROHRBACK L.L.P. 180 Grand Avenue, Suite 1380 Oakland, CA 94612 Telephone: (510) 463-3900 Facsimile: (510) 463-3901 E-mail: jlewis@kellerrohrback.com - and - Mark D. DeBofsky, Esq. DEBOFSKY SHERMAN CASCIARI REYNOLDS, P.C. 150 N. Wacker Dr., Suite 1925 Chicago, IL 60606 Telephone: (312) 561-4040 Facsimile: (312) 929-0309 E-mail: mdebofsky@debofsky.com - and - David S. Preminger, Esq. KELLER ROHRBACK L.L.P. 1140 Avenue of the Americas, Ninth Floor New York, NY 10036 Telephone: (646) 380-6690 Facsimile: (646) 380-6692 E-mail: dpreminger@kellerrohrback.com UNITED STATES: Beasley Balks at U.S. Navy's MRR Process ------------------------------------------------------- LAKIA BEASLEY, RICHARD HENDERSON, on behalf of themselves and all others similarly situated, Plaintiffs v. CARLOS DEL TORO, SECRETARY OF THE NAVY, UNITED STATES OF AMERICA, in his official capacity, and UNITED STATES DEPARTMENT OF THE NAVY, Defendants, Case No. 1:22-cv-00667 (D.D.C., March 10, 2022) is brought by the Plaintiffs to change the U.S. Navy's unlawful policy and practice of separating Plaintiffs and Class members from the military via the Medical Retention Review (MRR) process without assessing their eligibility for, and referring them to, the duty-related path of the Disability Evaluation System (DES) to obtain disability benefits. According to the complaint, the Navy and the Marine Corps are refusing to refer eligible Reservists who are not presently on active duty orders into the duty-related path, including Plaintiffs LaKia Beasley and Richard Henderson and the members of the Class they represent. Instead, even when those Reservists satisfy the eligibility criteria in Department of Defense Instruction 1332.18 for referral, the Navy and the Marine Corps will not refer them into the duty-related path unless they already have a "Line of Duty Benefits Letter." The Plaintiffs and the putative Class seek declaratory and injunctive relief to set aside the Navy's separation of all Class members through the MRR process without considering their eligibility for duty-related processing, to declare unlawful the Navy's failure to refer eligible Service members into the DES' duty-related path as required by law and binding DoD regulations, and to order the Navy to properly process current and future Class members through the DES. Plaintiff Beasley is a veteran of the United States Navy who served in the Active Component from May 2006 until November 2016 and in the Reserves from November 2016 to May 2021. Plaintiff Henderson enlisted in the Navy Reserve in 2005 and eventually reached the rank of Builder Petty Officer First Class.[BN] The Plaintiffs are represented by: Andrew Soukup, Esq. Ranganath Sudarshan, Esq. Jeffrey Huberman, Esq. Nora Eccles, Esq. COVINGTON & BURLING LLP 850 10th Street NW Washington, DC 20001-4956 Telephone: (202) 662-6000 E-mail: asoukup@cov.com rsudarshan@cov.com jhuberman@cov.com neccles@cov.com - and - Esther Leibfarth, Esq. Rochelle Bobroff, Esq. David Sonenshine, Esq. Renee Burbank, Esq. NATIONAL VETERANS LEGAL SERVICES PROGRAM 1600 K Street, NW, Suite 500 Washington, DC 20006-2833 Telephone: (202) 265-8305 E-mail: esther@nvlsp.org rochelle@nvlsp.org david@nvlsp.org renee.burbank@nvlsp.org UNITED STATES: D.C. Court Certifies Class in Springs v. U.S. Navy ----------------------------------------------------------------- In the case, KENNETH SPRINGS, et al., Plaintiff v. CARLOS DEL TORO, et al., Defendant, Civil Action No. 20-3244 (RDM) (D.D.C.), Judge Randolph D. Moss of the U.S. District Court for the District of Columbia granted the Plaintiffs' motion for class certification and for appointment of class counsel. I. Background The case concerns the disability ratings assigned to former members of the U.S. Navy and Marine Corps who suffered from medical conditions that rendered them unfit for continued military service. These ratings impact, among other things, service members' eligibility for benefits following their separation from the military. The Plaintiffs, two former members of the U.S. Navy and Marine Corps, allege that they were "assigned a combined disability rating for these medical conditions that was lower than the combined disability rating required by the relevant statutes and regulations." The Plaintiffs challenge the regulatory regime that implemented these statutory mandates for the Department of Navy, SECNAVINST 1850.4E, which includes both the Navy and the Marine Corps. In June 27, 2019, however, the Secretary of the Navy, on behalf of the Navy and the Marine Corps, issued new regulations for making disability determinations; and -- although the new regime retains much of the structure of the prior one -- the relief the Plaintiffs seek applies only to the former scheme. Under that scheme, the Secretary of the Navy assigned to the Physical Evaluation Board ("PEB") "the responsibility to act on his behalf to make determinations of fitness for continued naval service, entitlement to benefits, disability ratings, and the disposition of service members referred to it" from both the Navy and the Marine Corps. AR 3234. The process itself was known as the Disability Evaluation System ("DES"), and service members required a referral into the DES from a medical provider after the "provider recognized that a wound, illness, or injury would not improve to the point of returning a service member to full duty." The parties agree about one fact central to the litigation -- that, at least until June 27, 2019, "the Navy did not separately rate Category II conditions." Instead, according to the Defendants, "a Category II rating was used as a placeholder that would allow the PEB to later determine whether the Category II condition properly should be reclassified as a Category I condition or a Category III condition." As a result, during the relevant time period the "PEB never issued a findings letter that contained a disability rating attached to a Category II condition." The Secretary of the Navy "ended the use of Categories" as part of this disability rating system on June 27, 2019, with the issuance of new regulations. The Plaintiffs filed the suit on Nov. 10, 2020, alleging that the statutory and regulatory scheme "required" the PEB "to assign a 'disability rating, from 0% to 100%, to each Category I unfitting condition and Category II contributing condition." The Defendants' alleged failure to comply with this obligation, the Plaintiffs maintain, meant that service members "were denied their legal right to a disability rating for each of their Category II conditions, which may have resulted in these service members receiving a lower combined disability rating and fewer benefits than they were entitled to under the applicable statutes and regulations." Plaintiffs Kenneth Springs, a Navy veteran, and Nathaniel Reese, a Marine Corps veteran, seek to represent a class of "similarly situated veterans of the Navy and Marine Corps." Both named Plaintiffs were allegedly disadvantaged in the DES by the PEB's refusal to assign disability ratings to Category II conditions. Both, according to the complaint, received 20% combined disability ratings even though each had medical conditions that qualified as Category II conditions. Pursuant to Navy policy, neither received a rating for those Category II conditions, leaving them with a disability rating of less than 30% and rendering them ineligible for the fully panoply of retirement benefits. The Plaintiffs allege both that the PEB's refusal to assign disability ratings to Category II conditions violated the governing statutory provision (Count One), and that the PEB's practice was arbitrary and capricious in violation of the Administrative Procedures Act, 5 U.S.C. Section 552, et seq., in light of relevant regulations (Count Two). As relief, the Plaintiffs seek both a declaration that the Defendants' practice was unlawful and an injunction "requiring," among other things, the "Defendants to correct the military records of the Plaintiffs and the members of the proposed class." They further allege that they should be permitted to bring a class action "on behalf of themselves and a class of similarly situated individuals," to include "of all veterans of the United States Navy and Marine Corps whom the Defendants retired or separated for disability six years prior to the filing of this action, whose PEB findings included at least one Category II condition." The Defendants answered the complaint on Feb. 9, 2021, and on June 15, 2021, the Plaintiffs moved for class certification of the following class pursuant to Federal Rule of Civil Procedure 23(b)(2): (1) veterans of the United States Navy or Marine Corps who were separated up to six years prior to the filing of this complaint on Nov. 10, 2020 by the Secretary after being found unfit for continued military service by the Physical Evaluation Board; (2) who were found by the Physical Evaluation Board to have at least one Category II unfitting condition whose rating the Navy failed to include when calculating DoD combined disability ratings; and accordingly, (3) who were denied military benefits on account of the Navy's failure to include the VA's assigned disability rating for the veterans' Category II conditions when calculating the veterans' DoD combined disability ratings. In response, the Defendants "agreed with the Plaintiffs that the Court can certify a class under Rule 23(b), but disagreed with the Plaintiffs' proposed class definition." They proposed the following definition, instead: (1) veterans of the United States Navy or Marine Corps who were separated by the Department of the Navy between Nov. 10, 2014 and June 27, 2019 after being found unfit for continued military service by the Department of the Navy's Physical Evaluation Board; and (2) who were found by the Physical Evaluation Board to have at least one Category II condition under SECNAVINST 1850.4E. The Defendants' proposed alterations, they explained, addressed three issues with Plaintiffs' class definition. First, because the Plaintiffs had defined the proposed class to include any service members who were separated from service during the "six years prior to the filing of the complaint on Nov. 10, 2020," the proposed class "would include service members within the statute of limitations but after the Navy discontinued the category-based rating system at issue on June 27, 2019." Second, the Defendants noted that the class definition referenced "Category II unfitting conditions," when in practice all unfitting conditions were assigned to Category I, meaning that the "Plaintiffs' proposed class (service members with 'Category II unfitting conditions') would have zero members." Third, the Defendants described the third part of the Plaintiffs' class definition as "unnecessary, inaccurate," and "potentially confusing," in part because the "Navy sometimes reclassified Category II conditions as Category I conditions." The Defendants' proposed edits to the class definition addressed these concerns by ending the class period on June 27, 2019, eliminating the "unfitting" descriptor of Category II conditions, and deleting the third part of the class definition. Following the Defendants' response, the parties met and conferred regarding their proposed alterations to the class definition. The Plaintiffs have now agreed to the Defendants' revised class definition and indicate that the parties further "agree that the proposed class meets the requirements for class certification under Fed. R. Civ. P. 23(a) and (b)(2) and that the action may be appropriately litigated as a Rule 23(b)(2) class action." II. Analysis The Plaintiffs request both that the Court certifies a class and that it appoints the Plaintiffs' counsel as the class counsel. A. Class Certification Although the parties "agree that the proposed class meets the requirements for class certification under Fed. R. Civ. P. 23(a) and (b)(2)," the Court nevertheless must satisfy itself, on behalf of absent class members and after a "rigorous analysis," that those requirements are satisfied. Judge Moss concludes that the Plaintiffs have made the necessary showings. He turns first to the four requirements imposed by Rule 23(a) -- numerosity, commonality, typicality, and adequacy—and concludes that each is comfortably satisfied. As for numerosity, he finds that the Plaintiffs are entitled to rely on estimates for purposes of satisfying the numerosity requirement, and their estimates well exceed any floor on the number of potential class members needed to satisfy that requirement. As for commonality and typicality, he holds that because the Defendants' practice exposed all putative class members and the Plaintiffs to the same alleged deprivation of their statutory and regulatory rights, the proposed class satisfies Rule 23(a)'s requirements of commonality and typicality. As for adequacy, the Plaintiffs will adequately represent the interests of the proposed class, meaning Plaintiffs have satisfied each of the 23(a) requirements. Judge Moss also concludes that the Plaintiffs have satisfied Rule 23(b)(2)'s requirement. Rule 23(b)(2) imposes "two requirements: (1) that defendant's actions or refusal to act are 'generally applicable to the class' and (2) that plaintiffs seek final injunctive relief or corresponding declaratory relief on behalf of the class." Judge Moss opines that neither of these requirements poses an obstacle to class certification. Each of these individuals, whether in the Navy or the Marine Corps, was subject to the same process (the DES) pursuant to the same regulatory scheme (SECNAVINST1850.4E). His determination of whether the PEB's treatment of Category II conditions violated the relevant statutory and regulatory provisions will, accordingly, affect the Plaintiffs and all proposed class members in exactly the same way. As the Defendants concede, the PEB addressed such conditions in the same manner for every service member, and thus every class member was similarly affected by that policy. Because the Defendants' conduct is therefore "generally applicable to the class" and because any relief issued by the Court will apply to the entire class, Judge Moss concludes the Plaintiffs have satisfied Rule 23(b)(2)'s requirements. Consistent with the parties' agreement, that class will be defined as follows: (1) veterans of the United States Navy or Marine Corps who were separated by the Department of the Navy between November 10, 2014 and June 27, 2019 after being found unfit for continued military service by the Department of the Navy's Physical Evaluation Board; and (2) who were found by the Physical Evaluation Board to have at least one Category II condition. B. Appointment of Class Counsel The Plaintiffs request that the Court appoints Dechert LLP and National Veterans Legal Services Program ("NVLSP") as class counsel. The Defendants raise no objection to the appointment of Dechert LLP and NVLSP as class counsel, and after considering the relevant materials, Judge Moss finds that all four factors weigh in favor of their appointment. Those materials demonstrate that attorneys from Dechert LLP and NVLSP have "devoted substantial amounts of time and resources to investigate the claims asserted" in the complaint, and that, as a group, they "have extensive experience in all areas of litigation, including pro bono litigation, class action litigation, and complex commercial litigation." As for "knowledge of the applicable law," the counsel from the NVLSP is a senior staff attorney whose practice includes "assisting active-duty service members and veterans in obtaining medical military retirements through NVSLP's Lawyers Service Warriors program." And, as for the necessary resources required to pursue this litigation, the counsel from Dechert LLP represents that the firm "has more than sufficient resources to litigate this matter to completion," In light of this undisputed record and the counsel's able representation of the Plaintiffs thus far, Judge Moss will appoint Dechert LLP and NVLSP to represent the class. III. Conclusion For the foregoing reasons, Judge Moss granted the Plaintiffs' motion for class certification and for appointment of class counsel. The class will include the following individuals: (1) veterans of the United States Navy or Marine Corps who were separated by the Department of the Navy between Nov. 10, 2014 and June 27, 2019 after being found unfit for continued military service by the Department of the Navy's Physical Evaluation Board; and (2) who were found by the Physical Evaluation Board to have at least one Category II condition. Dechert LLP and NVSLP are appointed as the class counsel. By April 15, 2022, the parties will file a joint status report proposing a schedule for further proceedings and indicating the parties' positions with respect to whether the Court should "direct appropriate notice to the class." A full-text copy of the Court's March 11, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/yuphtwk5 from Leagle.com. UNIVERSITY OF ILLINOIS: Brown Files Class Certification Bid ----------------------------------------------------------- In the class action lawsuit captioned as DERICK BROWN, ATIBA FLEMONS, and JEFFREY TAYLOR On behalf of themselves and all others similarly situated, v. THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Case No. 2:19-cv-02020-JBM-EIL (C.D. Ill.), the Plaintiffs ask the Court to enter an order certifying a class of proposed individuals: "All individuals identifying as Black and/or African American who are currently employed at UIUC, or who have been employed by UIUC at any point since January 1, 2014, and who have not held a supervisory position within System Human Resources, Illinois Human Resources, campus unit offices for human resources, or the Office of Access and Equity at any point since January 1, 2014." The Plaintiffs Derick Brown, Atiba Flemons, and Jeffrey Taylor, three Black employees who currently work at Defendant's Urbana-Champaign campus, move, on behalf of themselves and those similarly situated, for class certification under Fed. R. Civ. P. Rule 23(a) and 23(b)(2), and alternatively 23(c)(4) ("Rule 23"), for the issue of liability under Title VII of the Civil Rights Act of 1964, and the Illinois Civil Rights Act of 2003. On February 19, 2019, Plaintiffs filed their Amended Complaint, in this putative class action lawsuit. The Plaintiffs seek declaratory and injunctive relief on their own behalf and on behalf of all others similarly situated. The Plaintiffs allege that Defendant has a pattern and practice of discriminating against its Black employees, as more fully described in the accompanying Memorandum of Law, perpetuating a hostile work environment, and thus violating Title VII and ICRA. The University of Illinois Urbana-Champaign is a public land-grant research university in Illinois in the twin cities of Champaign and Urbana. It is the flagship institution of the University of Illinois system and was founded in 1867. A copy of the Plaintiffs' motion to certify class dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3CZJ9Wm at no extra charge.[CC] The Plaintiffs are represented by: Shilpa Narayan, Esq. Rebecca Houlding, Esq. Joshua Friedman, Esq. Jesse Centrella, Esq. FRIEDMAN & HOULDING LLP 1050 Seven Oaks Lane Mamaroneck, NY 10543 Telephone: (888) 369-1119 Facsimile: (866) 731-5553 E-mail: shilpa@friedmanhouldingllp.com V. MARCHESE & CO: Gomez-Velazquez Files Class Certification Bid --------------------------------------------------------------- In the class action lawsuit captioned as Alfredo Gomez-Velazquez On behalf of Himself and all others similarly situated, v. V. Marchese & Co. Cut Fresh, LLC, Case No. 20CV1802 (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying him as the representative, and the Previant Law Firm S.C. as class counsel, for the following opt-out class: "All hourly employees employed by Defendant Cut Fresh, LLC who during the time period between November 6, 2018 and the present either (a) worked as a production or maintenance employee for Cut Fresh; or (b) punched in after a meal break less than 30 minutes after punching out for the break." A copy of the Plaintiff's motion to certify class dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3iDkNZb at no extra charge.[CC] The Plaintiff is represented by: Yingtao Ho, Esq. THE PREVIANT LAW FIRM, S.C. W. Wisconsin Avenue, Suite 100MW Milwaukee, WI 53203 Telephone: (414) 271-4500 Facsimile: (414) 271-6308 E-mail: yh@previant.com VALLON PHARMA: Rendon Sues Over Blind Inaccessible Website ----------------------------------------------------------- Vallon 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 14, 2022, that a class action was filed against the company alleging that its website is not compatible with software used by vision-impaired individuals. In November 2021, the company was named as a defendant in a putative class action lawsuit filed in the California Superior Court, County of Los Angeles, styled "Rendon v. Vallon, Inc., et al. " The complaint brought one claim for violation of California's Unruh Civil Rights Act (Unruh Act), alleging that the company's website is not compatible with software used by vision-impaired individuals. The company settled the lawsuit for an immaterial amount. Vallon Pharmaceuticals, Inc. is a clinical-stage biopharmaceutical company based in Pennsylvania. VERTAFORE INC: 5th Cir. Affirms Dismissal of Allen Class Suit ------------------------------------------------------------- In the case, Derek Allen; Leandre Bishop; John Burns, Plaintiffs-Appellants v. Vertafore, Incorporated, Defendant-Appellee, Case No. 21-20404 (5th Cir.), the U.S. Court of Appeals for the Fifth Circuit affirmed the district court's order granting Vertafore's motion to dismiss. I. Background The Plaintiffs, Texas driver's license holders, brought the action against Vertafore for a violation of the Driver's Privacy Protection Act, 18 U.S.C. Section 2721, et seq., after Vertafore announced that unauthorized users had gained access to personal information protected by the statute that Vertafore had stored on unsecured external servers. On Nov. 10, 2020, Vertafore, an insurance software company, announced that three data files that it had "stored in an unsecured external storage service" had been accessed without authorization sometime between March and August 2020. Those files contained the driver information of approximately 27.7 million people holding Texas driver's licenses issued before February 2019. As of November 2020, Vertafore's investigation had not turned up any evidence that the information accessed without authorization had been misused. On Dec. 4, 2020, the Plaintiffs filed a putative class action complaint against Vertafore for a violation of the Driver's Privacy Protection Act. They alleged that "Vertafore knowingly disclosed the Driver's License Information of the Plaintiffs and approximately 27.7 million other Class members by storing that information on unsecured external servers." On Jan. 29, 2021, Vertafore filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that the Plaintiffs lacked standing, and under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The magistrate judge held a hearing on the motion on April 27, 2021 and subsequently recommended that the district court find that the Plaintiffs had standing but that they failed to state a claim. The magistrate judge noted that "absent from the Plaintiffs' complaint is any factual allegation describing how Vertafore's purported mismanagement of information amounts to a knowing disclosure of personal information for an improper purpose." Therefore, he concluded that the "Plaintiffs' allegation that Vertafore knowingly disclosed their personal information for an improper purpose is nothing more than a conclusory allegation or legal conclusion masquerading as a factual conclusion." The Plaintiffs objected to the magistrate judge's Memorandum and Recommendation and asked for an opportunity to amend their complaint if the district judge was not inclined to deny Vertafore's motion. On July 23, 2021, the district court adopted the magistrate judge's Memorandum and Recommendation in its entirety and granted Vertafore's motion to dismiss. The Plaintiffs timely filed the appeal. II. Discussion The Driver's Privacy Protection Act (DPPA) "regulates the disclosure of personal information contained in the records of state motor vehicle departments." The DPPA makes it "unlawful for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under section 2721(b) of this title." "A person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under the DPPA will be liable to the individual to whom the information pertains, who may bring a civil action in a United States district court." "The court may award actual damages, but not less than liquidated damages in the amount of $2,500." To state a claim for a violation of the DPPA, the complaint must adequately allege that "(1) the defendant knowingly obtained, disclosed or used personal information; (2) from a motor vehicle record; and (3) for a purpose not permitted." The Plaintiffs' complaint alleges that Vertafore knowingly disclosed their personal information "by storing that information on unsecured external servers." The complaint further states that "the unsecure servers disclosed" the Plaintiffs' personal information "in response to the commands of unauthorized individuals and consistent with the manner in which they were programmed and configured by Vertafore." In their motion to dismiss and before the Court, Vertafore has argued that the Plaintiffs failed to allege both that the company acted with an impermissible purpose and that the company made a knowing disclosure. Because it concludes that the Plaintiffs have not alleged a "disclosure" within the meaning of the DPPA, the Fifth Circuit need not reach whether the Plaintiffs sufficiently alleged that Vertafore acted knowingly and with an impermissible purpose. It turns, then, to whether any of the allegations in the Plaintiffs' complaint amount to a disclosure, as that word is used in the DPPA. When interpreting statutes, the Fifth Circuit begins with the text's plain meaning, "ascertained by reference to 'the particular statutory language at issue, as well as the language and design of the statute as a whole.'" The Plaintiffs argue in their briefs to the Court that Vertafore's disclosure was the act of "placing the information onto a server that was readily accessible to the public," but this assertion is nowhere in the Plaintiffs' complaint, nor is it supported by the facts alleged in the Plaintiffs' complaint. Instead, the only facts alleged in the Plaintiffs' complaint are that Vertafore stored personal information on "unsecured external servers" and that unauthorized users accessed that information. Without more, these facts do not plausibly state a "disclosure" consistent with the plain meaning of that word. Nothing about the words "unsecured" or "external" implies exposure to public view, and the mere fact that unauthorized users managed to access the information does not imply that Vertafore granted or facilitated that access. After all, the Fifth Circuit would hardly say that personal information was "disclosed" if it was kept in hard copy and the papers were stolen out of an unlocked, but private, storage facility. Though at this stage of the proceedings, the Fifth Circuit draws all reasonable inferences in the Plaintiffs' favor, the inference Plaintiffs ask it to draw -- from "stored on unsecured external servers" to "disclosed" -- is not reasonable. Because the Plaintiffs have not alleged a disclosure within the meaning of the DPPA, their complaint fails to tate a plausible claim for relief. III. Disposition For the foregoing reasons, the judgment of the district court is affirmed. A full-text copy of the Court's March 11, 2022 Order is available at https://tinyurl.com/4hn2uufw from Leagle.com. VIACOMCBS INC: Agreement Reached in Consolidated Class Action ------------------------------------------------------------- ViacomCBS 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 15, 2022, that parties in a consolidated class action lawsuit in the United States District Court for the Northern District of Illinois have reached an agreement to settle their dispute with the court's approval. The lawsuit was filed by parties that claim to have purchased broadcast television spot advertising beginning on or about January 1, 2014 on television stations owned by one or more of the defendant television station owners and alleges the sharing of allegedly competitively sensitive information among such television stations in alleged violation of the Sherman Antitrust Act. The action, which names the company among fourteen total defendants, seeks monetary damages, attorneys' fees, costs and interest as well as injunctions against the allegedly unlawful conduct. On October 8, 2019, the company and other defendants filed a motion to dismiss the matter, which was denied by the court on November 6, 2020. The company has reached an agreement in principle with the plaintiffs to settle the lawsuit. ViacomCBS Inc. is a global media and entertainment company that creates premium content and experiences for audiences worldwide, offering broadcast and cable television programming, innovative streaming services and digital video products, provide powerful capabilities in production, distribution and advertising solutions with one of the industry's most extensive libraries of television and film titles with a portfolio of iconic consumer brands includes Paramount+, Pluto TV, CBS, Showtime Networks, Paramount Pictures, Nickelodeon, MTV, Comedy Central and BET. VIACOMCBS INC: Agrees to Settle New York Class Action ----------------------------------------------------- ViacomCBS 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 15, 2022, that parties in a consolidated class action lawsuit in the United States District Court for the Southern District of New York have reached an agreement to settle their dispute with the court's approval. On August 27, 2018 and on October 1, 2018, Gene Samit and John Lantz, respectively, filed for claims seeking to recover damages caused by purported violations of the federal securities laws, including by allegedly making materially false and misleading statements or failing to disclose material information, and seeks costs and expenses as well as remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. On November 6, 2018, the Court entered an order consolidating the two actions. On November 30, 2018, the Court appointed Construction Laborers Pension Trust for Southern California as the lead plaintiff of the consolidated action. On February 11, 2019, the lead plaintiff filed a consolidated amended putative class action complaint against CBS, certain current and former senior executives and members of the CBS Board of Directors. The consolidated action is stated to be on behalf of purchasers of CBS Class A Common Stock and Class B Common Stock between September 26, 2016 and December 4, 2018. On April 12, 2019, the defendants filed motions to dismiss this action, which the Court granted in part and denied in part on January 15, 2020. With the exception of one statement made by Mr. Moonves at an industry event in November 2017, in which he allegedly was acting as the agent of CBS, all claims as to all other allegedly false and misleading statements were dismissed. The company reached an agreement in principle with the plaintiffs to settle the lawsuit. The settlement, which will include no admission of liability or wrongdoing by the company, will be subject to court approval. All amounts payable by the company under the settlement will be paid by its insurers. ViacomCBS Inc. is a global media and entertainment company that creates premium content and experiences for audiences worldwide, offering broadcast and cable television programming, innovative streaming services and digital video products, provide powerful capabilities in production, distribution and advertising solutions with one of the industry's most extensive libraries of television and film titles with a portfolio of iconic consumer brands includes Paramount+, Pluto TV, CBS, Showtime Networks, Paramount Pictures, Nickelodeon, MTV, Comedy Central and BET. VIACOMCBS INC: Court Narrows Claims in Securities Suit ------------------------------------------------------ ViacomCBS 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 15, 2022, that on January 27, 2021, the Court of Chancery of the State of Delaware dismissed one disclosure claim, while allowing all other claims against the defendants to proceed. Discovery on the surviving claims is proceeding. Beginning on February 20, 2020, three purported CBS stockholders filed separate derivative and/or putative class action lawsuits in the Court of Chancery of the State of Delaware. On March 31, 2020, said court consolidated the three lawsuits and appointed Bucks County Employees' Retirement Fund and International Union of Operating Engineers of Eastern Pennsylvania and Delaware as co-lead plaintiffs for the consolidated action. On April 14, 2020, the lead plaintiffs filed a Verified Consolidated Class Action and Derivative Complaint against Shari E. Redstone, NAI, Sumner M. Redstone National Amusements Trust, members of the CBS Board of Directors (comprised of Candace K. Beinecke, Barbara M. Byrne, Gary L. Countryman, Brian Goldner, Linda M. Griego, Robert N. Klieger, Martha L. Minow, Susan Schuman, Frederick O. Terrell and Strauss Zelnick), former CBS President and Acting Chief Executive Officer Joseph Ianniello and the company as nominal defendant. The complaint alleged breaches of fiduciary duties to CBS stockholders in connection with the negotiation and approval of the Agreement and Plan of Merger dated as of August 13, 2019, as amended on October 16, 2019. The complaint also alleges waste and unjust enrichment in connection with Mr. Ianniello's compensation. The complaint seeks unspecified damages, costs and expenses, as well as other relief. On June 5, 2020, the defendants filed motions to dismiss and on January 27, 2021, the court dismissed one disclosure claim, while allowing all other claims against the defendants to proceed. Discovery on the surviving claims is proceeding. ViacomCBS Inc. is a global media and entertainment company that creates premium content and experiences for audiences worldwide, offering broadcast and cable television programming, innovative streaming services and digital video products, provide powerful capabilities in production, distribution and advertising solutions with one of the industry's most extensive libraries of television and film titles with a portfolio of iconic consumer brands includes Paramount+, Pluto TV, CBS, Showtime Networks, Paramount Pictures, Nickelodeon, MTV, Comedy Central and BET. VIACOMCBS INC: Faces Shareholder Suits in Del. Ch. -------------------------------------------------- ViacomCBS 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 15, 2022, that it is facing four separate putative class action lawsuits in the Court of Chancery of the State of Delaware filed by purported Viacom stockholders. On January 23, 2020, the Court consolidated the four lawsuits. On February 6, 2020, the Court appointed California Public Employees. Retirement System as lead plaintiff for the consolidated action, together with Park Employees' and Retirement Board Employees' Annuity and Benefit Fund of Chicago and Louis M. Wilen, filed a First Amended Verified Class Action Complaint against NAI, NAI Entertainment Holdings LLC, Shari E. Redstone, the members of the special transaction committee of the Viacom Board of Directors (comprised of Thomas J. May, Judith A. McHale, Ronald L. Nelson and Nicole Seligman) and its President and Chief Executive Officer and director, Robert M. Bakish. The complaint alleges breaches of fiduciary duties to Viacom stockholders in connection with the negotiation and approval of the merger of CBS and Viacom. The complaint seeks unspecified damages, costs and expenses, as well as other relief. On May 22, 2020, the defendants filed motions to dismiss. On December 29, 2020, the Court dismissed the claims against Mr. Bakish, while allowing the claims against the remaining defendants to proceed. Discovery on the surviving claims is proceeding. ViacomCBS Inc. is a global media and entertainment company that creates premium content and experiences for audiences worldwide, offering broadcast and cable television programming, innovative streaming services and digital video products, provide powerful capabilities in production, distribution and advertising solutions with one of the industry's most extensive libraries of television and film titles with a portfolio of iconic consumer brands includes Paramount+, Pluto TV, CBS, Showtime Networks, Paramount Pictures, Nickelodeon, MTV, Comedy Central and BET. VIACOMCBS INC: Seeks Dismissal of New York Securities Suit ---------------------------------------------------------- ViacomCBS 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 15, 2022, that on December 22, 2021, the plaintiffs in a putative securities class action lawsuit in New York Supreme Court, County of New York filed a stipulation seeking the voluntary dismissal without prejudice of a director of the company from the lawsuit, which the Court subsequently ordered. The defendants filed motions to dismiss the lawsuit, which are pending. On August 13, 2021, Camelot Event Driven Fund filed a putative securities class action lawsuit in said court and on November 5, 2021, an amended complaint. The complaint is purportedly on behalf of investors who purchased shares of the company's Class B Common Stock and 5.75% Series A Mandatory Convertible Preferred Stock pursuant to public securities offerings completed in March 2021. The complaint asserts violations of federal securities law and alleges that the offering documents contained material misstatements and omissions, including through an alleged failure to adequately disclose certain total return swap transactions involving Archegos Capital Management referenced to our securities and related alleged risks to the company's stock price. On December 22, 2021, the plaintiffs filed a stipulation seeking the voluntary dismissal without prejudice of the outside director defendants from the lawsuit, which the Court subsequently ordered. On the same date, the defendants filed motions to dismiss the lawsuit, which are pending. ViacomCBS Inc. is a global media and entertainment company that creates premium content and experiences for audiences worldwide, offering broadcast and cable television programming, innovative streaming services and digital video products, provide powerful capabilities in production, distribution and advertising solutions with one of the industry's most extensive libraries of television and film titles with a portfolio of iconic consumer brands includes Paramount+, Pluto TV, CBS, Showtime Networks, Paramount Pictures, Nickelodeon, MTV, Comedy Central and BET. VIEW INC: Sonthalia Petitions for Writ of Mandamus in Mehedi Suit ----------------------------------------------------------------- Plaintiff SWETA SONTHALIA filed a petition for writ of mandamus from a court ruling entered in the lawsuit entitled ASIF MEHEDI, Plaintiff v. VIEW, INC., et al., Defendants, Case No. 21-cv-06374-BLF, in the United States District Court for the Northern District of California. Plaintiff Asif Mehedi brought his lawsuit against View and its CEO Rao Mulpuri and CFO Vidul Prakash. Mr. Mehedi brought claims on behalf of a putative class of investors who bought View securities between Nov. 30, 2020 and Aug. 16, 2021 and allegedly suffered losses based on View's making materially false or misleading statements and failing to disclose material adverse facts about the company's business, including warranty costs and internal controls. View's alleged fraud led to a fall in its stock price following an announcement after the market closed on August 16, 2021 that it was beginning an independent investigation concerning the adequacy of the company's previously disclosed warranty accrual. Ms. Sonthalia sought appointment as Lead Plaintiff in this securities fraud class action, carefully making every required showing -- including that she had the largest financial interest in the litigation's outcome. Despite Sonthalia meeting the statutory presumption of most adequate plaintiff, the District Court appointed another movant by using a loss calculation that rendered movants' actual purchase prices irrelevant. According to Ms. Sonthalia, the District Court partially followed the Private Securities Litigation Reform Act of 1995 and Supreme Court precedent. When assessing financial interest to appoint a lead plaintiff, it excluded Stadium Capital, LLC's sales from before the only alleged corrective disclosure, because of causation issues. Specifically, because those sales occurred before the market learned the truth, the sale-price arguably still included a fraud premium and therefore Stadium's gains or losses are likely not proximately caused by the fraud. However, the District Court clearly erred by adopting a unique and largely unprecedented methodology for calculating "financial interest" which replaced movants' actual purchase prices with an artificial "purchase price." Specifically, the District Court ignored the price Stadium and Sonthalia purchased View stock for and replaced it with the market price just before the Corrective Disclosure. In doing so, the District Court's Orders on February 8, 2022 and February 23, 2022 rejected the only guidance the PSLRA provides for calculating damages. The Plaintiff now petitions this Court, pursuant to the All Writs Act, 28 U.S.C. Section 1651, for a writ of mandamus: (1) vacating the Orders; (2) directing the District Court to appoint Sonthalia as Lead Plaintiff; and (3) clarifying the contradictory caselaw among this circuit's district courts regarding the relevancy of purchase price when calculating financial interest pursuant to the Private Securities Litigation Reform Act of 1995. The question presented is: Did the District Court, in direct contravention of the PSLRA and Supreme Court precedent, clearly err in holding that Sonthalia did not have the "largest financial interest" based on a loss calculation that renders actual purchase price irrelevant? The appellate case is captioned as IN RE SWETA SONTHALIA, Petitioner v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, Respondent, Case No. 22-70044, in the United States Court of Appeals for the Ninth Circuit, filed on March 14, 2022.[BN] Plaintiff-Petitioner SWETA SONTHALIA is represented by: Ivy T. Ngo, Esq. Constantine P. Economides, Esq. Velvel (Devin) Freedman, Esq. ROCHE FREEDMAN LLP 1 SE 3rd Avenue, Suite 1240 Miami, FL 33131 Telephone: (305) 971-5943 E-mail: ingo@rochefreedman.com ceconomides@rochefreedman.com vel@rochefreedman.com - and - David J. Schwartz, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 W.G./WELCH MECHANICAL: Faces Aluira Suit Over Workers' Unpaid Wages ------------------------------------------------------------------- JOSE L. ALUIRA, RICARDO CALDERON, MANUEL CARLLO, WILLIAM CHAVEZ, LESLY CRUZ, GILBERTO DIAZ, MANUEL DEJESUS ESCALANTE GONZALEZ, ABRIEL HERNANDEZ, JOSE HERNANDEZ, DENIS LARIOS, OSMAN LOPES, DANNY ALEXANDER MARADIAGA HERNANDEZ, ADOLFO MALDONADO, CARLOS MARTINEZ, EVER MAYORGA, EDWIN MAYORGA, ELIAZAR MEDRANO, ESWIN ORANTES, ARNALDO RAMOS, SILVIA RIOS, MELQUIN VALDEZ, HUGO A. VARGAS MONTOYA, on behalf of themselves and others similarly-situated, Plaintiffs v. W.G./WELCH MECHANICAL CONTRACTORS, L.L.C. Defendants, Case No. 1:22-cv-00274 (E.D. Va., March 14, 2022) is a class action brought by the Plaintiffs arising from the Defendant's failure to pay minimum and overtime wages in violation of the Fair Labor Standards Act and the District of Columbia's Minimum Wage Revision Act. The Plaintiffs, who are Spanish-speaking workers with little or no fluency in either spoken or written English, are former or current non-exempt employees of Defendant who earned, but did not receive, compensation for time worked, together with time and one-half pay for time spent over 40 hours per week from Defendant. They were employed between February 17, 2022, and March 7, 2022 to perform plumbing and other construction labor on a construction project known as the "City Ridge Project" located in Washington, DC. W.G./Welch Mechanical Contractors, L.L.C. is a mechanical contractor with principal place of business in Frederick, Maryland.[BN] The Plaintiffs are represented by: Thomas F. Hennessy, Esq. THE HENNESSY LAW FIRM, PLLC 4015 Chain Bridge Road, Suite G Fairfax, VA 22030 Telephone: (703) 865-8836 Facsimile: (703) 865-7633 E-mail: thennessy@virginiawage.net WAL-MART ASSOCIATES: Parties in Nelson Seek to Stay Class Briefing ------------------------------------------------------------------ In the class action lawsuit captioned as CHRISTOPHER NELSON, on behalf of himself and all others similarly situated, v. WAL-MART ASSOCIATES, INC., and DOES 1 through 50, inclusive, Case No. 3:21-cv-00066-MMD-CLB (D. Nev.), the Parties ask the Court to enter an order granting a stay on the briefing of Plaintiff's Motion for Conditional and Collective Class Action Certification for a period of 120 days. The current deadline for filing Defendant's Opposition to Plaintiff's Rule 216(b) Motion is March 4, 2022 with a Reply deadline on April 8, 2022. Accordingly, the parties are seeking a 120-day stay up to and including Tuesday, July 5, 2022. After the expiration of this proposed stay, the parties agree to submit an updated briefing schedule regarding these deadlines for the Court's review and consideration no later than Thursday, August 4, 2022. Walmart is an American multinational retail corporation that operates a chain of hypermarkets, discount department stores, and grocery stores from the United States, headquartered in Bentonville, Arkansas. A copy of the Parties' motion dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3L1h9nI at no extra charge.[CC] The Plaintiff is represented by: Mark R. Thierman, Esq. Joshua D. Buck, Esq. Leah L. Jones, Esq. Joshua R. Hendrickson, Esq. THIERMAN BUCK LLP 7287 Lakeside Drive Reno, NV 89511 The Defendants are represented by: Anthony L. Martin, Esq. Dana B. Salmonson, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 10801 W. Charleston Blvd., Suite 500 Las Vegas, NV 89135 Telephone: (702) 369-6800 Facsimile: (702) 369-6888 E-mail: anthony.martin@ogletreedeakins.com dana.salmonson@ogletreedeakins.com WALMART INC: Court Denies Bid to Dismiss Fortney Wage & Hour Suit ----------------------------------------------------------------- In the case, DAVID FORTNEY, et al., Plaintiffs v. WALMART, INC., Defendant, Case No. 2:19-cv-4209 (S.D. Ohio), Judge Sarah D. Morrison of the U.S. District Court for the Southern District of Ohio, Eastern Division, denied the Defendant's Motion to Dismiss Claims of Out-of-State Opt-Ins and denied as moot the Plaintiffs' Motion to Transfer Venue. I. Background The lawsuit was filed as a collective action under the Fair Labor Standards Act ("FLSA") and as a Rule 23 class action under Ohio's wage and hour laws. Named Plaintiffs David Fortney and Eli Triplett are both former hourly-paid, non-exempt employees of Walmart. Walmart, an Arkansas-based and Delaware-incorporated company, owns and operates more than 3,000 retail store locations in the United States, many of which offer automotive maintenance and mechanic services. For at least a portion of their employment, Plaintiffs worked as automotive technicians at the Walmart store in Cambridge, Ohio. The Plaintiffs allege that "Walmart has a policy of requiring work (responding to work related text messages, Facebook messages, phone calls, and other communications) while its employees are on unpaid meal breaks." According to them, an employee on their meal break is required to respond to work-related inquiries, but is not paid any wages for the work done during a meal break -- including overtime wages, to the extent the meal-time work causes the employee to work more than 40 hours. The Plaintiffs filed their Complaint on Sept. 21, 2019. Six weeks later (before Walmart responded to the Complaint), Messrs. Fortney and Triplett were joined by four additional opt-in plaintiffs. Although the four opt-ins did not identify the Walmart location where they worked, two provided mailing addresses in Georgia and another, Chad Palmer, provided a Michigan address. On Nov. 18, 2019, Walmart filed its Answer and Affirmative Defenses. Therein, Walmart admitted that the Court has jurisdiction over the action and that it is the proper venue. Between Nov. 18, 2019, and Jan. 20, 2020, seven more opt-in plaintiffs with non-Ohio mailing addresses consented to join the action. On Feb. 12, 2020, the parties filed their First Rule 26(f) Report, indicating that there were no contested issues related to venue or jurisdiction. The parties filed a Revised Rule 26(f) Report later that month, making the same representation. Accordingly, the Court put on a Scheduling Order stating: "There are no contested issues related to venue or jurisdiction at this time." On March 13, 2020, the Plaintiffs moved to conditionally certify the case as a collective action under Section 216(b) of the FLSA. In accordance with the Court's Scheduling Order, Walmart engaged in limited discovery before responding to the Plaintiffs' motion. That included taking the depositions of Messrs. Fortney and Triplett, who worked for Walmart in Ohio, and Mr. Palmer, who worked for Walmart in Michigan. In October 2020 -- 11 months after filing its Answer and Affirmative Defenses, seven months after the Plaintiffs moved for conditional certification, and four months after an eighth out-of-state opt-in joined the cas -- Walmart sought leave to file an amended answer. In its First Amended Answer and Affirmative Defenses, filed Dec. 8, 2020, Walmart again admitted that "the Court has jurisdiction and venue over the action." But, for the first time, it also asserted, as its Twenty-Sixth Affirmative Defense. On Jan. 22, 2021, the Court conditionally certified the Plaintiffs' proposed FLSA collective class, defined as follows: All individuals employed at Walmart Tire & Auto locations in positions, job titles, job codes, job classifications of Automotive Technician and all other similar nomenclature (including, but not limited to, Tire & Lube Specialists and other positions in Walmart Tire & Auto Locations) performing substantially identical functions and/or duties, currently or formerly employed by Defendant Walmart, Inc. and/or its predecessors or successors in interest in the United States between 3 years prior to the filing of this suit and the date of final judgment in this matter. This includes all Walmart Tire & Auto employees who are subject to Defendant Walmart's meal break policy." On Feb. 26, 2021, the parties jointly moved for approval of a notice to the class and a notice plan. Therein, Walmart represented that it had "prepared a list of individuals who potentially fit the definition of the conditionally certified collective class together with their last known addresses." Court granted the joint motion the following week. Three months later, the parties filed a Joint Motion to Modify Collective Class Definition and to Approve Revised Notice. The Court granted the motion and ordered that notices and consent forms be sent to the following revised FLSA collective class: "All individuals employed at Walmart Tire & Auto locations in positions, job titles, job codes, job classifications of Automotive Technician and all other similar nomenclature including but not limited to, Tire & Auto Specialist and other positions in Walmart Tire & Auto locations) performing substantially identical functions and/or duties, currently or formerly employed by Defendant Walmart, Inc. and/or its predecessors or successors in interest in the United States between 3 years prior to the filing of this suit and the date of final judgment in this matter who were employed full time in such positions. This includes all full-time Walmart Tire & Auto employees who are subject to Defendant Walmart's meal break policy." Roughly 2,800 potential class members have since filed notice of their consent to join in the action. According to Walmart, 2,696 of them are "out-of-state opt-ins." While notices were being distributed and consent forms were being filed, the parties also filed two joint status reports. Their first, filed Aug. 13, 2021, addressed various discovery issues and proposed case management deadlines. Walmart indicated its intent to move for decertification of the collective class, but there was no suggestion of a motion to dismiss based on personal jurisdiction. It was not until the second joint status report was filed on Nov. 15, 2021, that Walmart stated its intent to make such a motion. The Motion was filed on Dec. 15, 2021. II. Discussion Walmart moves for dismissal of the out-of-state opt-ins' claims for lack of personal jurisdiction. The Sixth Circuit's recent decision in Canaday v. Anthem Cos., Inc. made clear that this Court lacks specific personal jurisdiction over a non-Ohio defendant facing claims of non-Ohio FLSA collective action members. The parties do not dispute that Walmart is a non-Ohio defendant, nor do they dispute that the out-of-state opt-ins are non-Ohio FLSA collective action members. Rather, the dispute is whether Walmart timely moved to dismiss their claims. Judge Morrison opines that the procedural history of the case makes clear: Walmart has waived its right to assert a personal jurisdiction defense. Walmart waited more that a year after the Court allowed its Amended Answer -- and more than two years after first being put on notice of the prospect of out-of-state opt-ins -- to file a motion to dismiss based on lack of personal jurisdiction. In the year between those two filings, the parties and the Court committed substantial resources to the litigation of the case. Walmart entered a general appearance and, jointly with the Plaintiffs, asked the Court to approve a notice and notice plan. Walmart again joined the Plaintiffs in seeking to modify the collective class definition and distribute a revised notice. In connection with that effort, Walmart provided the Plaintiffs a list of 51,000 individuals potentially falling within the modified collective class, coming from all over the country. With Walmart's knowledge, the Plaintiffs then devoted a substantial amount of time and expense in sending notices and consent forms to those 51,000 people. These actions gave the Plaintiffs and the Court the reasonable impression that Walmart would defend the case on the merits. Accordingly, Walmart has waived its personal jurisdiction defense. Walmart's arguments in response are unsuccessful. First, Walmart argues that the Court's Order granting it leave to file the Amended Answer forecloses the question. In that Order, the Court recognized that the personal jurisdiction defense was raised as to "individuals who were not yet plaintiffs in the case," because the Court had not yet ruled on whether the out-of-state opt-ins could proceed on their claims. But the Court ruled on Jan. 22, 2021, that the out-of-state opt-ins could proceed as part of the collective action. Even still, Walmart waited eleven months before filings its Motion to Dismiss. All the while, it actively participated in the litigation of the out-of-state opt ins' claims by filing joint motions addressing the collective class definition and providing Plaintiffs with a list of 51,000 potential collective class members -- knowing that the Court and the Plaintiffs, respectively, would expend resources to further the case in response. Walmart next argues that it acted promptly after the Canaday decision was handed down. The date of Canaday's publication is of no consequence. The law on which the Canaday decision is based, Bristol Myers Squibb, 137 S.Ct. 1773 (2017), was decided two years before this action commenced. Further, even before Canaday was decided, the Court and others came to the same conclusion. The Sixth Circuit's Canaday decision certainly settles any doubt as to the Court's specific personal jurisdiction over non-resident defendants in FLSA collective actions. However, the challenge was fully available to Walmart even before the Sixth Circuit spoke. III. Conclusion For the reasons she set forth, Judge Morrison denied Walmart's Motion to Dismiss. Accordingly, the Plaintiffs' Motion to Transfer Venue is denied as moot. A full-text copy of the Court's March 11, 2022 Opinion & Order is available at https://tinyurl.com/2ycvnrvj from Leagle.com. Y.S. HAPPY: Kim Sues Over Unpaid Minimum and Overtime Wages ----------------------------------------------------------- David Kim, Seunghoon Han, Jinsung Lee, Sungsoo Lee, and James Choi on behalf of themselves and all others similarly situated, Plaintiffs v. Y.S. Happy Corp, Young Chung Chun, Phil Sook Cho, and Yang Hwan Cho, Defendants, Case No. 1:22-cv-01368 (E.D.N.Y., March 11, 2022) is a class action seeking to recover unpaid minimum wage, overtime wages, and other damages pursuant to the Fair Labor Standards Act and New York Labor Law. The Plaintiffs were employed as servers by the Defendants. They seek injunctive and declaratory relief against Defendants' unlawful actions and unpaid overtime wages. They also seek liquidated damages, compensatory damages, interest, and attorneys' fees and costs pursuant to the FLSA and the NYLL. Y.S. Happy Corp. owns and operates Happy Karaoke at 160-30 Northern Blvd. in Flushing, New York.[BN] The Plaintiffs are represented by: Ryan J. Kim, Esq. RYAN KIM LAW, P.C. 222 Bruce Reynolds Blvd., Suite 490 Fort Lee, NJ 07024 Telephone: (718) 573-1111 E-mail: ryan@RyanKimLaw.com ZARBEE'S INC: Faces Cottrill False Ad Suit Over Gripe Water Product ------------------------------------------------------------------- ARIEL COTTRILL, individually and on behalf of all others similarly situated, Plaintiff v. ZARBEE'S, INC., Defendant, Case No. 4:22-cv-01599-SK (N.D. Cal., March 14, 2022) seeks to remedy the deceptive and misleading business practices of Defendant with respect to the marketing and sales of Zarbee's Gripe Water in violation of the California's Consumers Legal Remedies Act, False Advertising Law, and Unfair Competition Law. According to the complaint, the Defendant manufactured, sold, and distributed the product using a marketing and advertising campaign that is centered around claims that it "helps ease occasional gas & stomach discomfort," associated with colic and hiccups. The Defendant communicates the same substantive message throughout its advertising and marketing of the product, including at point of sale and on the front of the product packaging. Each consumer who has purchased the product has been exposed to Defendant's misleading advertising, says the suit. As a direct and proximate result of Defendant's alleged false and misleading advertising claims and marketing practices, Defendant has caused Plaintiff and the members of the Class to purchase a product which does not, and cannot, perform as represented, says the suit. The Plaintiff and other similarly situated consumers have been harmed in the amount they paid for the product, it adds. Zarbee's, Inc. produces pharmaceutical products. The Company offers vitamins, supplements, immune support, throat relief, and other related products.[BN] The Plaintiff is represented by: L. Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 N. California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com - and - Sarah N. Westcot, Esq. Stephen A. Beck, Esq. BURSOR & FISHER, P.A. Brickell Ave., Suite 1420 Miami, FL 33131 Telephone: (305) 330-5512 Facsimile: (305) 676-9006 E-mail: swestcot@bursor.com sbeck@bursor.com ZENDESK INC: Anderson Securities Suit Stayed -------------------------------------------- Zendesk, 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 15, 2022, that on June 2, 2020, a purported stockholder of the company filed a derivative complaint in the United States District Court for the Northern District of California, entitled "Anderson v. Svane, et al.," Case No. 3:20-cv-03671, against certain of the its executive officers and directors. Mikkel Svane is Zendesk's CEO. The derivative complaint alleges breaches of fiduciary duty against all defendants, and includes claims for insider trading and violations of Section 10(b) of the Securities Exchange Act of 1934 against the officer defendants, purportedly on behalf of the Company itself. They claim that the defendants misrepresented and/or omitted material information in certain of the company's prior public filings. On May 6, 2021, the court approved a joint stipulation to extend the stay of action. Zendesk builds software that helps organizations build better customer relationships through conversational experiences and designs customer experience solutions. ZENDESK INC: Dismissal of Securities Suit Under Appeal ------------------------------------------------------ Zendesk, 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 15, 2022, that purported stockholders of the company filed two putative class action complaints in the United States District Court for the Northern District of California on October 24, 2019 and November 7, 2019, entitled "Charles Reidinger v. Zendesk, Inc., et al.," 3:19-cv-06968-CRB and "Ho v. Zendesk, Inc., et al.," No. 3:19-cv-07361-WHA, respectively, against the company and certain of its executive officers. The complaints alleged violations of Section 10(b) and Section 20(a) of the Securities Exchange Act of 1934, as amended, purportedly on behalf of all persons who purchased Zendesk, Inc. common stock between February 6, 2019 and October 1, 2019, inclusive. The claims are based upon allegations that the defendants misrepresented and/or omitted material information in certain of the prior public filings. The court appointed a lead plaintiff and consolidated the various lawsuits into a single action (Case No. 3:19-cv-06968-CRB), and the lead plaintiff filed its amended complaint on April 14, 2020 asserting the same alleged violations of securities laws as the initial complaints. On June 29, 2020, Zendesk and the executive officer defendants moved to dismiss the amended complaint. On November 9, 2020, the court granted Zendesk's motion to dismiss and granted plaintiff leave to amend its complaint. On January 8, 2021, plaintiff filed its second amended complaint and on January 22, 2021, Zendesk and the executive officer defendants moved to dismiss the second amended complaint. On March 23, 2021, judgment was entered in favor of Zendesk and the executive officer defendants. On April 20, 2021, plaintiff filed a notice of appeal with the U.S. Court of Appeals for the Ninth Circuit. On July 29, 2021, plaintiff filed its opening brief in the appeal, and on October 13, 2021, the company and the executive officer defendants filed their answering brief. Oral arguments occurred on February 7, 2022. Zendesk builds software that helps organizations build better customer relationships through conversational experiences and designs customer experience solutions. ZIMMER BIOMET: Class Settlement in Karl Suit Gets Final Approval ----------------------------------------------------------------- In the class action lawsuit captioned as JAMES KARL v. Zimmer Biomet Holdings, Inc., et al., Case No. 3:18-cv-04176-WHA (N.D. Cal.), the Hon. Judge William Alsup entered an order granting final approval of the class settlement: -- The Plaintiff's request to finally certify, for settlement purposes, the proposed settlement class under Rule 23(a), (b) (3), and (e) is granted. -- The Plaintiff's further request that this order find the class notice as implemented satisfied Rule 23 and due process is granted. -- The Plaintiff's further request to finally appoint plaintiff James Karl as the settlement class representative is granted. -- The Plaintiff's further request to appoint as lead counsel Jason Lohr of Lohr Ripamonti & Segarich LLP, and as class counsel Roberto Ripamonti of Lohr Ripamonti & Segarich LLP and Denis Kenny and John Lough of Scherer Smith & Kenny LLP, each as counsel for the settlement class under Rule 23(g) is granted. -- The Plaintiff's further request to finally approve payment to CPT Group as the settlement administrator is granted -- This order awards attorney's fees in the amount of $1,814,826.67 to be distributed in installments -- This order further awards class counsel costs in the amount of $25,645. Zimmer Biomet is a publicly traded medical device company. It was founded in 1927 to produce aluminum splints. The firm is headquartered in Warsaw, Indiana, where it is part of the medical devices business cluster. A copy of the Court's order dated March 4, 2022 is available from PacerMonitor.com at https://bit.ly/3Ij13Es at no extra charge.[CC] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2022. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***