/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220420.mbx C L A S S A C T I O N R E P O R T E R Wednesday, April 20, 2022, Vol. 24, No. 73 Headlines 3M CO: 6th Cir. Set to Decide on Class Certification Dispute 3M CO: Judge Tosses Motion to Compel Production of Custodial File 3M COMPANY: Davson Sues Over Complications from AFFF Products 3M COMPANY: Faces Dorsey Suit Over PFAS Exposure from AFFF Products 3M COMPANY: Goldberg Sues Over PFAS Exposure From AFFF Products 3M COMPANY: Taylor Sues Over Injury Sustained from AFFF Products 7-ELEVEN INC: Judge Approves $98MM Franchisee Suit Settlement ABBVIE INC: Faces Nakata Suit Over Share Price Drop ABBVIE INC: Kessler Topaz Files Securities Fraud Class Action ABBVIE INC: Rosen Law Firm Reminds of June 6 Deadline ABBVIE INC: Vincent Wong Law Reminds of June 6 Deadline ACUITY BRANDS: Term Sheet for Settlement of Class Suit Executed ADVANCED PLUMBING: NSW Supreme Court Rules on Class Action AFRICAN METHODIST: AARP Lawyers to Act as Class Action Co-Counsel AFRICAN METHODIST: Class Actions Pile Up Over Pension Funds AFRICAN METHODIST: Faces Second Class Action Over Pension Funds AFRICAN METHODIST: Over $90M Missing From Pension Funds, Suit Says ALMAY INC: Makeup Contains Harmful Chemicals, Lawsuit Claims ALPHABET INC: Faces Class Suit Over Mapping APIs' Market Control ALPHABET INC: Pair of Derivative Complaints Target Executives AMAZON LOGISTICS: Faces Class Action in Seattle Over DSP Program AMAZON.COM INC: Court Tosses Unjust Enrichment Claim in Hogan Suit AMAZON.COM INC: Faces Class Action Suit From Delivery Partners AMENTUM SERVICES: Weaver Suit Remanded to San Diego Superior Court ANNAPOLIS, MD: Court Denies Bid to Dismiss Johnson Class Suit APPLE INC: Granato Consumer Suit Removed to N.D. California APPLE INC: Sued for Not Paying Manual Workers on Weekly Basis ART VAN FURNITURE: Stewart Files Appeal in Del. Dist. Ct. ASHLEY FURNITURE: Aberl Sues Over Deceptive Discount Price Tag ATOTECH LIMITED: Awaits Ruling on Bid to Nix PFOA/PFOS PI Suit ATRIUM AT WAYNE: Estate of Evelyn Wells Blame Facility for Death BEYOND MEAT: Settles Consolidated Shareholder Lawsuits BGR INC: Henley Seeks Overtime Wages Under FLSA, OMFWSA, OPPA BHP GROUP: Court Allows Foreign Residents to Register in Suit BLACKBERRY LTD: Settles Securities Class-Action Lawsuit for $165M BOOT BARN: Suit Claims Website Not Equally Accessible For Blind BROWN UNIVERSITY: Walsh Files Certiorari Petition in Supreme Court BUCK KNIVES: Settlement Approval Hearing Scheduled for August 8 BUMBLE BEE: Certification of 3 Classes of Tuna Purchasers Upheld BUMBLE BEE: Must Face Tuna Purchasers' Antitrust Class Action BURGER KING: Whopper's Packaging Contains PFAS, Hussain Alleges C3.AI INC: Levi & Korsinsky Reminds of May 3 Deadline C3.AI: Kessler Topaz Meltzer Reminds of May 3 Deadline CABALETTA BIO: Bragar Eagel & Squire Reminds of April 29 Deadline CANADA: Court Certifies Class Action Over CWB Privatization CANADA: Farmers' CWB Class Action Lawsuit Gets Certified CANADIAN AIR: Court Approves CAN$16MM Class Action Settlements CARDONE TRAINING: Handelsman Sues Over Unwanted Telephone Calls CARNAGIO ENTERPRISES: Judgment Bids in American Family Suit OK'd CARVER FEDERAL: Improperly Charges Overdraft Fees, Bonilla Claims CDK GLOBAL: Bragar Eagel Investigates Potential Securities Claims CELSIUS HOLDINGS: Vincent Wong Law Reminds of May 16 Deadline CHICAGO, IL: Judge Pares Claims in Vehicle Impound Class Action CINEFLIX MEDIA: Opts Out of Collective Agreement in Class Suit CIRCLE K STORES: McDonald Wage-and-Hour Suit Removed to S.D. Cal. CITYWIDE SECURITY: Evans Class Suit Seeks Overtime Pay Under FLSA CLEVELAND CLINIC: Dimascio Sues Over Event Specialists' Unpaid OT CLEVELAND PUBLIC: Energy Class Action Trial Scheduled for July 25 COSTCO WHOLESALE: Fails to Properly Pay Laborers, Burian Suit Says COURIER EXPRESS: Fails to Pay Sufficient Wages under FLSA & SCPWA CREDIT UNION: Faces Lucero ERISA Class Suit Over Fiduciary Duties CRONOS GROUP: Rosen Law Firm Investigates Securities Claims CYTODYN INC: Files Bid to Dismiss Securities Class Suit in Wash. DAIRY FARMERS: Dairy Farmers File Antitrust Class Action DAIRY FARMERS: New Mexico Dairies File Antitrust Class Action DIAGEO PLC: Settles US Class Action Over Guinness Brew Origin DOCTOR'S BEST: Settles Glucosamine False Advertising Class Action DRAKES: Settles Underpayment Class Action for $2 Million ELANCO ANIMAL: Seresto Flea Collar Class Actions Pending ELLUME USA: Faces Class Action Over Recalled COVID-19 Tests EMBARK TECHNOLOGY: Gainey McKenna Reminds of May 31 Deadline EMBARK TECHNOLOGY: Glancy Prongay Reminds of May 31 Deadline EMBARK TECHNOLOGY: Robbins Geller Reminds of May 31 Deadline EVENTIDE CREDIT: Court Denies Bid to Dismiss Duggan Class Suit EVERBRIDGE INC: Faruqi & Faruqi Investigates Potential Claims EVERBRIDGE INC: Gainey McKenna Reminds of June 3 Deadline EVERBRIDGE INC: Robbins LLP Discloses Securities Class Action EVERBRIDGE INC: Rosen Law Firm Reminds of June 3 Deadline FACEBOOK INC: Judge Won't Completely Close Out BIPA Class Action FACEBOOK INC: Miller Thomson Attorney Discusses Court Ruling FANDANGO MEDIA: Violates Video Privacy Protection Act, Suit Says FAT BRANDS: Rosen Law Reminds of May 17 Deadline FCA US: Faces Gomez Suit Over Defective Chrysler Minivans FCA US: Ramirez Sues Over Defective Electric Vehicles GAMESTOP INC: Illegally Transmits Consumers' PII, Echevarria Says GATOS SILVER: Kahn Swick & Foti Reminds of April 25 Deadline GATOS SILVER: Vincent Wong Law Reminds of April 25 Deadline GENERAL MOTORS: Faces Chevrolet Bolt EV Class Action in Canada GOLDMAN SACHS: Wants $7.5BB 401(k) Plan Class Action Trimmed GRAB HOLDINGS: ClaimsFiler Reminds of May 16 Deadline GRAB HOLDINGS: Vincent Wong Law Reminds of May 16 Deadline GRUBHUB INC: Faces Class Action Over Unfair Contracts HAEMONETICS CORP: Loses Bid to Dismiss Crumpton's BIPA Complaint HAWAII: 9th Circuit Reverses Decision in Title IX Class Action HILLSBORO CLUB: Lugo Seeks to Collect Unpaid Wages Under WARN Act HILTON HOTELS: White Appeals Class Cert. Bid Denial HOLIDAY HAVEN: Fuerst Ittleman Attorney Discusses Court Ruling HOMOLOGY MEDICINES: Hagens Berman Reminds of May 24 Deadline HOMOLOGY MEDICINES: Vincent Wong Law Reminds of May 24 Deadline HORNELL BREWING: Faces Class Action Over "All Natural" Claims HOWARD BANK: Brasko's Bid to Certify Class and Subclasses Granted HYATT HOTELS: Proposed Class-Action Alleges Pay, Tip Violations HYUNDAI MOTOR: Wilson Sues Over Defect in Vehicle Engines ILLINOIS INSTITUTE: Court Dismisses Hernandez Suit With Prejudice INT'L BUSINESS: Bernstein Liebhard Reminds of June 6 Deadline INTERNATIONAL BUSINESS: Rosen Law Reminds of June 6 Deadline INTERNATIONAL BUSINESS: Vincent Wong Reminds of June 6 Deadline JOHNSON & JOHNSON: Cream Contains Toxic Chemicals, Horowitz Says KDVH ENTERPRISES: Wins Bid to Dismiss & Arbitrate in Cooley Suit KELLOGG CO: Judge Tosses Class Action Over Strawberry Pop-Tarts KISLING NESTICO: Class Certification in Williams Suit Affirmed KNOX COUNTY, TN: Law Firm Filed Motion to Get Mask Mandate Fees LIBERTY MUTUAL: Court Dismisses Safeco & LMG From Suber Class Suit LOUISIANA: Court Grants in Part Bid to Dismiss Giroir v. DOC Suit LUCID GROUP: Howard G. Smith Reminds of May 31 Deadline LUCID GROUP: Rosen Law Firm Reminds of May 31 Deadline MCDONALD'S CORPORATION: Food Products Contains PFAS, Collora Says MCDONALD'S USA: DOJ's Request to File Statement of Interest Denied MEDICAL TRANSPORTATION: Appeals District Court Ruling in Harris MIDLAND CREDIT: 7th Circuit Affirms Dismissal of FDCPA Claim MITSUI SUMITOMO: Wins Bid for Summary Judgment in Thermoflex Suit MONEYLION INC: Bragar Eagel Investigates Potential Claims MONSANTO CO: Class Action Settlement Gets Preliminary Court Nod MONTANA UNIVERSITY: Seeks Denial of Cole Class Certification Bid MORGAN STANLEY: Settles Data Breach Class Action for $60MM NATIONAL FOOTBALL: Ex-Coaches Join Racial Discrimination Suit NEW YORK JETS: Fans Drop NFL League Teams Relocation Bid NEW YORK: Fired Yankees Stadium Waitress Files Vaccine Mandate Suit NEWPORT CORP: Summary Judgment Order in Shareholder Suit Affirmed NOVO NORDISK: June 27 Settlement Fairness Hearing Set OJ INSULATION: Carrillo Class Suit Sues Over Wage & Hour Violations OREGON: Lawyer Discusses Lawsuit Over Prison COVID-19 Response PATTERN ENERGY: Bid to Dismiss Securities Suit Granted in Part PEPSICO INC: Faces Class Action Following Kronos Payroll Hack PETSMART LLC: Suit Accuses Retailer of Mishandling Employees' Data PHILIPPINE AIRLINES: Fails to Provide Full Refunds, Flores Says PLAYSTUDIOS INC: Levi & Korsinsky Reminds of June 6 Deadline PLAYSTUDIOS INC: Robbins Geller Reminds of June 6 Deadline PLAYSTUDIOS INC: Robbins LLP Discloses Securities Class Action PLAYSTUDIOS, INC: Robbins Geller Reminds of June 6 Deadline POST ALARMS: Fails to Pay All Final Wages Due, Lopez Suit Alleges PRINCETON UNIVERSITY: Court Narrows Claims in Corbitt Class Suit QUEBEC: Claims Process in Groundwater Suit in Shannon Discussed RCI DINING: Collier Files Suit Over Allege Tip Skimming RED RIVER: Fails to Pay Restaurant Staff's Minimum Wage, Suit Says REDWIRE CORPORATION: Securities Class Suit in Florida Underway ROCKPORT HEALTHCARE: Fails to Pay Workers' Wages After Kronos Hack RODAN + FIELDS: Settles Lash Boost Class Action for $38 Million SCHNEIDER NATIONAL: Johnson Appeals FLSA Suit Ruling to 7th Cir. SENTOSA NURSING: Settles Nurses' Wage Class Action for $3 Million SEPHORA USA: Pays Manual Workers Every Other Week, Espinal Alleges SHOPIFY INC: Faces Class Action in Delaware Over Data Breach SOCLEAN INC: Cason Sues Over Mislabeled Sanitizing Machine SOLARWINDS CORP: Must Face Securities Class Action SOTHEBY'S: Averts Independent Contractor Misclassification Suit SPRINT CORP: N.Y. Court Pares Claims in Securities Class Action SPROUT FOODS: Faces Suit Over Nutrient Claims on Baby Food Pouches STARBUCKS CORP: Sued for Underfilling Cold Brew Concentrate STATE FARM: Cozen O'Connor Attorneys Discuss Court Ruling STRONGHOLD DIGITAL: Bragar Eagel Investigates Potential Claims TACTILE SYSTEMS: Johnson Fistel Investigates Potential Claims TAILORED BRANDS: Faces Lopez Class Suit Over Untimely Paid Wages TAKEDA PHARMACEUTICALS: Claims in Value Drug Suit Dismissed in Part TASKUS INC: Bragar Eagel & Squire Reminds of April 25 Deadline TASKUS INC: Levi & Korsinsky Reminds of April 25 Deadline TEVA PHARMACEUTICAL: Judge Denies Motion to Dismiss Class Action TINDER INC: Final Approval of Kim Suit Settlement Appealed TIVITY HEALTH: Juan Monteverde Probes Securities Claims Over Merger TOYOTA MOTOR: Australian Class Action Bill Could Reach $2 Billion TOYOTA MOTOR: To Pay Out Up to $2BB in Faulty Engine Class Suit TRADER JOE'S: Cristia Files Suit Over Mislabeled Cold Pressed Juice TWITER INC: Judge Affirms Securities Class Action Dismissal TYSON FOODS: Faces Class Action Over "Product of the U.S.A." Labels ULTA BEAUTY: Illinois Court Tosses Securities Class Action ULTIMATE KRONOS: Settles BIPA Class Action for $3.3 Million UNISWAP LABS: Kim & Serritella Discloses Securities Class Action UNISWAP LABS: Launches Venture Capital Arm Amid Class Action UNITED STATES: Clark Appeals Judgment in Civil Rights Suit UNIVERSITY OF SAN DIEGO: Claims in Tuition and Fees Suit Trimmed VERTIV HOLDINGS: Vincent Wong Reminds of April 11 Deadline VIATRIS INC: Judge Narrows Charges in EpiPen Price Hike Class Suit VOLTA INC: Hagens Berman Reminds of May 31 Deadline WALMART INC: Rodriguez Sues Over Sale of Lidocaine Patch Products WELLS FARGO: CFPB Files Amicus Brief in RESPA Class Action WELLS FARGO: Transfer of Forsburg Suit to N.D. California Denied WHOLE FOODS: Court Dismisses Akridge's 1st Amended Class Complaint WILLIAM OSLER: Certification of Privacy Breach Action Overturned WITHERSPOON URBAN: Professor in Tenant Suit to Face Eviction [*] BakerHostetler Sees Increase in Duplicative Data Breach Suits [*] Legislation Not Required to Level Meat Packing Playing Field [*] Price Fixing Class Action Among Food Price Inflation Factors [*] U.S. Tech Workers Collective Actions Tripled Since 2019 [*] Use of "Costs Referees" Cut $11MM from Class Action Legal Bills [^] CLASS ACTION Money & Ethics Conference on May 2 - Register Now ********* 3M CO: 6th Cir. Set to Decide on Class Certification Dispute ------------------------------------------------------------ Maya Earls, writing for Bloomberg Law, reports that the Sixth Circuit will soon decide whether to weigh in on a class certification dispute that could set off a new wave of litigation to force chemical companies, including 3M Co. and Chemours Co., to pay for monitoring exposures to so-called forever chemicals. Ohio firefighter Kevin D. Hardwick wants a federal court in the state to provide potentially millions of people with medical monitoring for per- and polyfluoroalkyl substances, also known as PFAS, at the expense of the chemical companies. He also wants the companies to pay for a science panel that would study the substances under an order from a federal court in Ohio. Hardwick's request for a science panel could cost the companies "untold billions," business and law groups told an appeals court March 28. There's mixed law on whether medical monitoring is a remedy or an independent cause of action, according to Lauren Brogdon, partner in the Energy Litigation Practice Group at Haynes & Boone LLP. Many states don't recognize it as either, she said. Ohio recognizes medical monitoring, she said, but "even the law there isn't completely settled." Hardwick sought to certify a class of all Americans, but the federal judge in Ohio limited it to people subject to the laws of the state who have specific amounts of PFAS in their blood. The class could include potentially 11 million people, or the population of the state, according to Brogdon. Plaintiffs will need to show exposure to PFAS at a certain level across those 11 million, offer common proof of a significant increased risk of developing a disease, and establish that the monitoring requested is necessary, she said. That is "going to be an uphill battle," she said. If the plaintiffs are successful, there will likely be a lot of similar lawsuits in other states, she said. This case is "certainly the one to watch going forward," according to Brogdon. 'Regulation by Another Name' The chemical companies want the Sixth Circuit to take up their petition for review and undo the class certification. They have support from the U.S. Chamber of Commerce, National Association of Manufacturers, and American Tort Reform Association. The groups told the court that the class is too large and lacks cohesion. Hardwick's case isn't litigation but instead "regulation by another name," Jennifer Dickey, associate counsel at the U.S. Chamber of Commerce Litigation Center, told Bloomberg Law. Hardwick can't "lasso" courts to force the companies to help investigate whether he has a claim, or whether millions of class members have any claims, according to the groups' brief. "No federal court can order such relief, whether to one plaintiff or to one-hundred million," the filing said. This class is large because of the "enormous scale of the harm and damage" caused by the companies' actions, Hardwick told the Sixth Circuit March 31. There's nothing to support the chemical companies' view that "the more people they injure, the higher plaintiff's burden to certify a class of those injured" should be, the filing says. The court's work on class status isn't finished, and its full size and scope are uncertain, Hardwick's filing says. Chief Judge Edmund A. Sargus, who is presiding over the case in the U.S. District Court for the Southern District of Ohio, asked the companies to show which states don't recognize medical monitoring as a claim for relief. Very few courts agree that medical monitoring can be a remedy, according to Davis & Whitlock attorney Gary Davis. Very few have certified classes for medical monitoring in PFAS cases, he said. If a class like this can be certified in Ohio, it presumably could be certified in other states, said Steve C. Gold, an environmental attorney and law professor at Rutgers Law School. If other state laws allow medical monitoring, then there's presumably a cause of action in those states, he said. There's still a long way to go, but a ruling in the plaintiffs' favor would be precedent-setting in terms of putting liability on manufacturers, Davis said. Also, having a class that large for medical monitoring "would be quite a precedent," he said. "I don't know that class certification here would cause the apocalypse," Gold said. But this case is interesting because of the magnitude of the alleged exposure, he said. Hardwick alleges the companies exposed "pretty much everybody to a harmful chemical," he said. "That's the basis for the level of concern that you see in the defendant's and the Chamber of Commerce's brief," Gold said. King & Spalding LLP represents the industry groups, which also represent themselves. Jones Day; Bricker & Eckler LLP; Paul, Weiss, Rifkind, Wharton & Garrison LLP; Sidley Austin LLP; McCarter & English LLP; Carlile Patchen & Murphy LLP; Crowell & Moring LLP; Porter Wright Morris & Arthur LLP; Roetzel & Andress; Parker Poe Adams & Bernstein LLP; Organ Law LLP; Mayer Brown LLP; and Vorys, Sater, Seymour & Pease LLP represent the companies. Taft Stettinius & Hollister LLP, Douglas & London PC, and Levin Papantonio Rafferty represent Hardwick. The case is In re: 3M Co., 6th Cir., No. 22-00305, 4/4/22. [GN] 3M CO: Judge Tosses Motion to Compel Production of Custodial File ----------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that the federal judge overseeing PFAS litigation has told plaintiff lawyers that files they are seeking from 3M don't seem to exist. Judge Richard Mark Gergel, on the bench in Charleston, S.C., rejected the Plaintiff Executive Committee's motion to compel production of the custodial file of former 3M CEO Lewis Lehr. The company is one of many defendants facing lawsuits over PFAS, a group of chemicals used in firefighting foam and consumer products like non-stick cookware. The chemicals enter and never leave the bloodstreams of humans, leading to their nickname "forever chemicals." The exact health effects aren't known, as the federal government struggles to pass official toxicity levels while states pass their own and hire private attorneys on contingency fees to file lawsuits. Federal cases are put in a multidistrict litigation proceeding in U.S. District Court for the District of South Carolina. There, plaintiffs lawyers have already received hundreds of thousands of documents from 3M but believed the company was holding out when it came to Lehr's work. Lehr was on 3M's board of directors from 1974-1991 and was its CEO from 1979-1986. All 3M found from his personal work was a lab notebook from 1947 relating to his work on tape. The plaintiffs lawyer say there must be more because 3M knew about problems with PFAS during his tenure and that 3M produced more than 29,000 documents from Lehr's tenure, some of which reference him. It also says if Lehr's custodial file existed but has been destroyed, 3M had a duty to preserve it. 3M has produced more than 750,000 other documents. Judge Gergel could not order the release of files he doesn't know to exist. "The PEC may renew its motion to compel if or when it can demonstrate that the Lehr custodial file exists, but is not being produced," he wrote. 3M said it interviewed former employees, searched off-site archives and searched Lehr's successor's documents but did not find a file on Lehr. PFAS lawsuits blame the chemicals for a variety of health problems, some of which were linked by a health study that was part of a settlement with DuPont. But others say the science on how PFAS affect the human body is incomplete. Meanwhile, as the government still requires PFAS in its firefighting foam on military bases, lawyers pursue litigation like an Ohio class action that alleges no illnesses. [GN] 3M COMPANY: Davson Sues Over Complications from AFFF Products ------------------------------------------------------------- DEXTER DAVSON, individually and on behalf of all others similarly situated, Plaintiff v. 3M COMPANY fka MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.; CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC; KIDDE FIRE FIGHTING, INC; KIDDE PLC INC.; NATIONAL FOAM, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS, LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100, inclusive, Defendants, Case No. 2:22-cv-01189-RMG (D.S.C., April 12, 2022) is a class action against the Defendants for negligence/gross negligence, strict liability, defective design, failure to warn, fraudulent concealment, medical monitoring trust, and violation of the Uniform Voidable Transactions Act. According to the complaint, the Defendants have failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants' AFFF products are dangerous to human health because PFAS are highly toxic and carcinogenic chemicals and can accumulate in the blood and body of exposed individuals. The Defendants have also failed to warn public entities and military members, including the Plaintiff, who they knew would foreseeably come into contact with their AFFF products. The Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition due to inadequate warning about the products' danger. The Plaintiff relied on the Defendants' instructions as to the proper handling of the products. As a result of the Defendants' omissions and misconduct, the Plaintiff was diagnosed with ulcerative colitis and commenced on-going medical treatment. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwall, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde Fire Fighting, Inc. is a manufacturer of fire safety products based in Mebane, North Carolina. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. The Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. UTC Fire & Security America's Inc. is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiff is represented by: Jeremy C. Shafer, Esq. VETERAN LEGAL GROUP 700 12th Street N.W., Suite 700 Washington, DC 20005 Telephone: (888) 215-7834 E-mail: jshafer@bannerlegal.com - and – S. James Boumil, Esq. BOUMIL LAW OFFICES 120 Fairmount Street Lowell, MA, 01852 Telephone: (978) 458-0507 E-mail: sjboumil@boumil-law.com - and – Konstantine Kyros, Esq. KYROS LAW 17 Miles Rd. Hingham, MA 02043 Telephone: (800) 934-2921 E-mail: kon@kyroslaw.com 3M COMPANY: Faces Dorsey Suit Over PFAS Exposure from AFFF Products ------------------------------------------------------------------- LINDA P. DORSEY, RACHEL DORSEY, MATTHEW DORSEY, REBEKAH DORSEY and WILLIAM P. DORSEY by the proposed Executor, LINDA P. DORSEY, individually and on behalf of all others similarly situated, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); ACG CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-01200-RMG (D.S.C., April 12, 2022) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, and wantonness. The case arises from severe personal injuries and death of the Decedent, William Dorsey, as a result of his exposure to the Defendants' aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of their PFAS-containing AFFF products and also failed to warn public entities and civilian firefighters, including the Decedent, who they knew would foreseeably come into contact with their AFFF products that use of and/or exposure to the products would pose a danger to human health. Due to inadequate warning, the Decedent was exposed to toxic chemicals and was diagnosed with pancreatic cancer. His diagnosis caused and/or contributed to his death, says the complaint. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. ACG Chemicals Americas Inc. is a manufacturer of chemical products based in Exton, Pennsylvania. Amerex Corporation is a manufacturer of firefighting products based in Trussville, Alabama. Archroma U.S. Inc. is a global specialty chemicals company headquartered in Charlotte, North Carolina. Arkema, Inc. is a diversified chemicals manufacturer in North America, based in King of Prussia, Pennsylvania. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Carrier Global Corporation is a heating, ventilation, and air conditioning company based in Palm Beach Gardens, Florida. Chemdesign Products, Inc. is a chemical toll manufacturing company based in Marinette, Wisconsin. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Chemicals, Inc. is a chemical manufacturing company based in Baytown, Texas. Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Chubb Fire, Ltd is a provider of security and fire protection systems based in United Kingdom. Clariant Corp. is a specialty chemical company based in Charlotte, North Carolina. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Deepwater Chemicals, Inc. is a producer of organic and inorganic iodine derivatives based in Woodward, Oklahoma. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwal, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. Nation Ford Chemical Company is a manufacturer of specialty organic chemicals based in Fort Mill, South Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. United Technologies Corporation was an American multinational conglomerate headquartered in Farmington, Connecticut. It merged with the Raytheon Company in April 2020 to form Raytheon Technologies. UTC Fire & Security Americas Corporation, Inc., f/k/a GE Interlogix, Inc., is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Telephone: (631) 600-0000 Facsimile: (631) 543-5450 - and – Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 - and – Frederick T. Kuykendall, III, Esq. THE KUYKENDALL GROUP, LLC 356 Morphy Ave., Suite B Fairhope, AL 36532 Telephone: (205) 434-2866 3M COMPANY: Goldberg Sues Over PFAS Exposure From AFFF Products --------------------------------------------------------------- CHARLES GOLDBERG, individually and on behalf of all others similarly situated, Plaintiff v. 3M COMPANY fka MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.; CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC; KIDDE FIRE FIGHTING, INC; KIDDE PLC INC.; NATIONAL FOAM, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS, LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100, inclusive, Defendants, Case No. 2:22-cv-01208-RMG (D.S.C., April 13, 2022) is a class action against the Defendants for negligence/gross negligence, strict liability, defective design, failure to warn, fraudulent concealment, medical monitoring trust, and violation of the Uniform Voidable Transactions Act. According to the complaint, the Defendants have failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants' AFFF products are dangerous to human health because PFAS are highly toxic and carcinogenic chemicals and can accumulate in the blood and body of exposed individuals. The Defendants have also failed to warn public entities and military members, including the Plaintiff, who they knew would foreseeably come into contact with their AFFF products. The Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition due to inadequate warning about the products' danger. The Plaintiff relied on the Defendants' instructions as to the proper handling of the products. As a result of the Defendants' omissions and misconduct, the Plaintiff was diagnosed with testicular cancer and commenced on-going medical treatment inclusive of surgical intervention via a left orchiectomy. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwall, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde Fire Fighting, Inc. is a manufacturer of fire safety products based in Mebane, North Carolina. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. The Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. UTC Fire & Security America's Inc. is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiff is represented by: Jeremy C. Shafer, Esq. VETERAN LEGAL GROUP 700 12th Street N.W., Suite 700 Washington, DC 20005 Telephone: (888) 215-7834 E-mail: jshafer@bannerlegal.com - and – S. James Boumil, Esq. BOUMIL LAW OFFICES 120 Fairmount Street Lowell, MA, 01852 Telephone: (978) 458-0507 E-mail: sjboumil@boumil-law.com - and – Konstantine Kyros, Esq. KYROS LAW 17 Miles Rd. Hingham, MA 02043 Telephone: (800) 934-2921 E-mail: kon@kyroslaw.com 3M COMPANY: Taylor Sues Over Injury Sustained from AFFF Products ---------------------------------------------------------------- MCLEWIS TAYLOR and LELA MAE TAYLOR, his wife, individually and on behalf of all others similarly situated, Plaintiffs v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); ACG CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.); and ABC CORPORATIONS (1-50), Defendants, Case No. 2:22-cv-01196-RMG (D.S.C., April 12, 2022) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, wantonness, and per quod claim. The case arises from severe personal injuries sustained by Plaintiff McLewis Taylor as a result of his exposure to the Defendants' aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of their PFAS-containing AFFF products and also failed to warn public entities and firefighter trainees, including Mr. Taylor, who they knew would foreseeably come into contact with their AFFF products that use of and/or exposure to the products would pose a danger to human health. Due to inadequate warning, Mr. Taylor was exposed to toxic chemicals and was diagnosed with prostate cancer. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul, Minnesota. ACG Chemicals Americas Inc. is a manufacturer of chemical products based in Exton, Pennsylvania. Amerex Corporation is a manufacturer of firefighting products based in Trussville, Alabama. Archroma U.S. Inc. is a global specialty chemicals company headquartered in Charlotte, North Carolina. Arkema, Inc. is a diversified chemicals manufacturer in North America, based in King of Prussia, Pennsylvania. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Carrier Global Corporation is a heating, ventilation, and air conditioning company based in Palm Beach Gardens, Florida. Chemdesign Products, Inc. is a chemical toll manufacturing company based in Marinette, Wisconsin. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Chemicals, Inc. is a chemical manufacturing company based in Baytown, Texas. Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Chubb Fire, Ltd is a provider of security and fire protection systems based in United Kingdom. Clariant Corp. is a specialty chemical company based in Charlotte, North Carolina. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Deepwater Chemicals, Inc. is a producer of organic and inorganic iodine derivatives based in Woodward, Oklahoma. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwal, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. Nation Ford Chemical Company is a manufacturer of specialty organic chemicals based in Fort Mill, South Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. United Technologies Corporation was an American multinational conglomerate headquartered in Farmington, Connecticut. It merged with the Raytheon Company in April 2020 to form Raytheon Technologies. UTC Fire & Security Americas Corporation, Inc., f/k/a GE Interlogix, Inc., is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiffs are represented by: Stephen T. Sullivan, Jr., Esq. John E. Keefe, Jr., Esq. WILENTZ, GOLDMAN & SPITZER P.A. 125 Half Mile Road, Suite 100 Red Bank, NJ 07701 Telephone: (732) 855-6060 Facsimile: (732) 726-4860 7-ELEVEN INC: Judge Approves $98MM Franchisee Suit Settlement ------------------------------------------------------------- Angus Thompson, writing for Sydney Morning Herald, reports that convenience store giant 7-Eleven has agreed to pay almost $100 million in a class action settlement to franchisees who say they were misled about the profitability of the stores. The class action before the Federal Court alleged 7-Eleven enticed operators into franchise agreements even though stores could only turn a profit if they underpaid staff or worked . . . "for nothing" or below award rates. The claim, lodged in 2018, alleged the company misled them about the accuracy of the labour costs in documents and records supplied to prospective franchisees and the average wages that a franchisee would have to pay. The chain was forced to pay back more than $173 million to workers after a joint investigation by The Sydney Morning Herald and The Age, and Four Corners, found systemic wage theft and doctoring of payroll records. Former Australian Competition and Consumer Commission boss Allan Fels, who previously headed a repayment panel set up by 7-Eleven, told The Sydney Morning Herald and The Age in late 2020 the $173 million did not reflect all the unpaid wages. Professor Fels said when the scheduled repayments to workers reached $165 million "they decided that was enough and they effectively closed the scheme". "But it was clear that there was another $100 or $200 million to come and they didn't want that," he said. The Fair Work Ombudsman also launched multiple investigations, suing 11 7-Eleven franchisees over pay issues, with a cumulative total of $1.8 million in penalties awarded against them, equivalent to about 1 per cent of the underpayments nationally. Stewart Levitt, partner at law firm Levitt Robinson, which ran the class action, said franchisees were led to believe employee costs would represent about seven per cent of business costs, but were actually about 13 per cent. "The gap represented the difference between being profitable and losing money for many franchisees," Mr Levitt said. "A franchisee who bought into the 7-Eleven franchise couldn't meet all his commitments and also survive so they either didn't pay proper wages, or pay their mortgage or didn't feed their children." The franchisees also alleged 7-Eleven breached its contract with certain class action members by only letting franchisees buy stock from a particular supplier at a particular price. On April 6, Federal Court judge David O'Callaghan signed off on the $98 million settlement that had been reached between the parties in August last year, with the money to be held in a trust. In a statement, 7-Eleven said the settlement had been reached without admission of fault, and the sum was inclusive of all legal costs. Chief executive Angus McKay said the company was pleased the matter had come to an "acceptable resolution", adding 7-Eleven had also invested $50 million in systems to prevent wage theft and for training for franchisees "in relation to their responsibilities in this regard". "We are seeing the positive results of the significant efforts we have made together with our franchise network," he said. [GN] ABBVIE INC: Faces Nakata Suit Over Share Price Drop --------------------------------------------------- CALVIN T. NAKATA, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. ABBVIE INC., RICHARD A. GONZALEZ, ROBERT A. MICHAEL, JEFFREY R. STEWART, and MICHAEL E. SEVERINO, Defendants, Case No. 1:22-cv-01773 (N.D. Ill., April 6, 2022) is a securities class action brought by the Plaintiff, on behalf of a class of all persons and entities who purchased or otherwise acquired AbbVie securities between April 30, 2021, through August 31, 2021, inclusive, seeking to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. According to the complaint, AbbVie is one of the world's largest pharmaceutical companies. Its biggest drug, Humira -- an anti-inflammatory drug used to treat illnesses such as Crohn's disease, ulcerative colitis, rheumatoid arthritis, and more -- was, in 2021 (aside from COVID-19 vaccines), the world's best-selling prescription drug, with net revenue of more than $20 billion in 2021. Humira accounts for more than a third of AbbVie's net revenue. Subsequently, AbbVie's future revenue and earnings depend in large part on the Company's ability to develop new sources of revenue to offset reduced Humira sales. Rinvoq -- an anti-inflammatory drug manufactured by AbbVie and used to treat RA and other diseases by inhibiting Janus kinase enzymes -- was touted as one such drug. After the Class Period, on December 3, 2021, AbbVie announced that the FDA had updated Rinvoq's label in accordance with its September 1, 2021 decision. Specifically, AbbVie stated that "the U.S. label for RINVOQ will now include additional information about the risks of malignancy and thrombosis, and the addition of mortality and MACE (defined as cardiovascular death, myocardial infarction and stroke) risks within the Boxed Warnings and Warnings and Precautions sections." On January 11, 2022, Defendants admitted that these changes to Rinvoq's label would negatively impact sales, forcing the Company to reduce its long-term guidance for Rinvoq's sales in 2025, from greater than $8 billion, to greater than $7.5 billion. The complaint alleges that, throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts, about the Company's business and operations. Specifically, Defendants misrepresented and/or failed to disclose that: (1) safety concerns about Xeljanz extended to Rinvoq and other JAK inhibitors; (2) as a result, it was likely that the FDA would require additional safety warnings for Rinvoq and would delay the approval of additional treatment indications for Rinvoq; and (3) therefore, Defendants' statements about the Company's business, operations, and prospects lacked a reasonable basis. As a result of Defendants' wrongful acts and omissions, and the significant decline in the market value of the Company's securities when the truth was revealed, Plaintiff and other members of the Class have suffered significant damages, the complaint adds.[BN] The Plaintiff is represented by: Sharan Nirmul, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: snirmul@ktmc.com ABBVIE INC: Kessler Topaz Files Securities Fraud Class Action ------------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP (www.ktmc.com) informs investors that the firm has filed a securities class action lawsuit in the United States District Court for the Northern District of Illinois against AbbVie, Inc. (AbbVie) (NYSE: ABBV) on behalf of all persons and entities who purchased or otherwise acquired AbbVie securities between April 30, 2021, and August 31, 2021, inclusive (the "Class Period"). This action is captioned Calvin T. Nakata v. AbbVie, Inc., et al., Case No. 1:22-cv-01773. Important Deadline Reminder: Investors who purchased or otherwise acquired AbbVie securities during the Class Period may, no later than June 6, 2022, seek to be appointed as a lead plaintiff representative of the class. Kessler Topaz is one of the world's foremost advocates in protecting the public against corporate fraud and other wrongdoing. Our securities fraud litigators are regularly recognized as leaders in the field individually and our firm is both feared and respected among the defense bar and the insurance bar. We are proud to have recovered billions of dollars for our clients and the classes of shareholders we represent. CLICK HERE TO SUBMIT YOUR ABBVIE LOSSES. YOU CAN ALSO CLICK ON THE FOLLOWING LINK OR COPY AND PASTE IN YOUR BROWSER: https://www.ktmc.com/new-cases/abbvie-inc?utm_source=PR&utm_medium=link&utm_campaign=abbvie&mktm=r LEAD PLAINTIFF DEADLINE: JUNE 6, 2022 CLASS PERIOD: APRIL 30, 2021 through AUGUST 31, 2021 CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS: James Maro, Esq. (484) 270-1453 or Email at info@ktmc.com ABBVIE'S ALLEGED MISCONDUCT AbbVie is one of the world's largest pharmaceutical companies. The company's revenues will come under significant pressure in the coming years when its best-selling drug, Humira, will lose patent protection in 2023. Accordingly, AbbVie's future revenue and earnings depend in large part on its ability to develop new sources of revenue to offset Humira's lost sales. Rinvoq—an anti-inflammatory drug manufactured by AbbVie and used to treat rheumatoid arthritis (RA) and other diseases by inhibiting Janus kinase (JAK) enzymes—was touted as one such drug. Rinvoq was initially approved in the United States to treat only moderate to severe RA. However, AbbVie was actively pursuing additional treatment indications and, in 2020, asked the U.S. Food and Drug Administration (FDA) to approve Rinvoq for the treatment of several other diseases. As is relevant here, Rinvoq is similar to other JAK inhibitor drugs, including Xeljanz, manufactured by Pfizer Inc. When the FDA approved Xeljanz in 2012 for the treatment of RA, it required an additional safety trial to evaluate Xeljanz's risk of triggering certain serious side effects. Beginning in February 2019, the FDA repeatedly warned the public that the safety trial indicated that Xeljanz's use could lead to serious heart-related issue, cancer, and other adverse events. Notwithstanding the similarities between Rinvoq and Xeljanz, during the Class Period, Defendants assured investors that Rinvoq was far safer than Xeljanz and not subject to the same regulatory risks. However, investors began to learn the truth about Rinvoq's significant risks on June 25, 2021, when AbbVie revealed that the FDA was delaying its review of expanded treatment applications for Rinvoq due to the safety concerns associated with Xeljanz. On this news, the price of AbbVie common stock declined $1.76 per share, or approximately 1.5%, from a close of $114.74 per share on June 24, 2021, to close at $112.98 per share on June 25, 2021. Then, on September 1, 2021, the FDA announced that final results from the Xeljanz safety trial established an increased risk of serious adverse events, even with low doses of Xeljanz. As a result, the FDA determined that it would require new and updated warnings for Xeljanz and Rinvoq because Rinvoq "share[s] similar mechanisms of action with Xeljanz" and "may have similar risks as seen in the Xeljanz safety trial." The FDA also indicated that it would further limit approved indications for Rinvoq as a result of these safety concerns. On this news, the price of AbbVie common stock declined $8.51 per share, or more than 7%, from a close of $120.78 per share on August 31, 2021, to close at $112.27 per share on September 1, 2021. After the Class Period, on December 3, 2021, AbbVie announced that the FDA had updated Rinvoq's label to require additional safety warnings and limit marketing of Rinvoq to only its use after treatment with other drugs has failed. On January 11, 2022, Defendants admitted that these changes to Rinvoq's label would negatively impact sales, forcing the Company to reduce its long-term guidance for Rinvoq's sales in 2025. The complaint alleges that, throughout the Class Period, the Defendants made materially false and/or misleading statements, about the company's business and operations. Specifically, Defendants misrepresented and/or failed to disclose that: (1) safety concerns about Xeljanz extended to Rinvoq and other JAK inhibitors; (2) as a result, it was likely that the FDA would require additional safety warnings for Rinvoq and would delay the approval of additional treatment indications for Rinvoq; and (3) therefore, Defendants' statements about the company's business, operations, and prospects lacked a reasonable basis, As a result of the Defendants' wrongful acts and omissions, and the significant decline in the market value of AbbVie's securities, AbbVie investors have suffered significant damages. WHAT CAN I DO? AbbVie investors may, no later than June 6, 2022, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose to do nothing and remain an absent class member. Kessler Topaz Meltzer & Check, LLP encourages AbbVie investors who have suffered significant losses to contact the firm directly to acquire more information. CLICK HERE TO SIGN UP FOR THE CASE WHO CAN BE A LEAD PLAINTIFF? A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. The lead plaintiff is usually the investor or small group of investors who have the largest financial interest and who are also adequate and typical of the proposed class of investors. The lead plaintiff selects counsel to represent the lead plaintiff and the class and these attorneys, if approved by the court, are lead or class counsel. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP Kessler Topaz Meltzer & Check, LLP prosecutes class actions in state and federal courts throughout the country and around the world. The firm has developed a global reputation for excellence and has recovered billions of dollars for victims of fraud and other corporate misconduct. All of our work is driven by a common goal: to protect investors, consumers, employees and others from fraud, abuse, misconduct and negligence by businesses and fiduciaries. For more information about Kessler Topaz Meltzer & Check, LLP please visit www.ktmc.com. [GN] ABBVIE INC: Rosen Law Firm Reminds of June 6 Deadline ----------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, on April 6 announced the filing of a class action lawsuit on behalf of purchasers of the securities of AbbVie Inc. (NYSE: ABBV) between April 30, 2021 and August 31, 2021, inclusive (the "Class Period"). A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than June 6, 2022. SO WHAT: If you purchased AbbVie securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the AbbVie class action, go to https://rosenlegal.com/submit-form/?case_id=5119 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than June 6, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) safety concerns about Xeljanz and Xeljanz XR extended to Rinvoq and other Janus kinase (JAK) inhibitors; (2) as a result, it was likely that the FDA would require additional safety warnings for Rinvoq and would delay the approval of additional treatment indications for Rinvoq; and (3) therefore, defendants' statements about the Company's business, operations, and prospects lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the AbbVie class action, go to https://rosenlegal.com/submit-form/?case_id=5119 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Attorney Advertising. Prior results do not guarantee a similar outcome. Contacts Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] ABBVIE INC: Vincent Wong Law Reminds of June 6 Deadline ------------------------------------------------------- Attention AbbVie Inc. ("AbbVie") (NYSE: ABBV) shareholders: The Law Offices of Vincent Wong on April 11 disclosed that a class action lawsuit has commenced on behalf of investors who purchased between April 30, 2021 and August 31, 2021. If you suffered a loss on your investment in AbbVie, contact us about potential recovery by using the link below. There is no cost or obligation to you. https://www.wongesq.com/pslra-1/abbvie-inc-loss-submission-form-2?prid=25751&wire=4 ABOUT THE ACTION: The class action against AbbVie includes allegations that the Company made materially false and/or misleading statements and/or failed to disclose that: (1) safety concerns about Pfizer Inc.'s drug Xeljanz extended to Abbvie's drug Rinvoq and to other Janus kinase enzyme inhibitor drugs; (2) as a result, it was likely that the U.S. Food and Drug Administration would require additional safety warnings for Rinvoq and would delay the approval of additional treatment indications for Rinvoq; and (3) therefore, defendants' statements about the Company's business, operations, and prospects lacked a reasonable basis. DEADLINE: June 6, 2022 Aggrieved AbbVie investors only have until June 6, 2022 to request that the Court appoint you as lead plaintiff. You are not required to act as a lead plaintiff in order to share in any recovery. Vincent Wong, Esq. is an experienced attorney who has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Vincent Wong, Esq. 39 East Broadway Suite 304 New York, NY 10002 Tel. 212.425.1140 E-Mail: vw@wongesq.com [GN] ACUITY BRANDS: Term Sheet for Settlement of Class Suit Executed --------------------------------------------------------------- Acuity Brands, Inc. disclosed in its Form 10-Q Report for the fiscal year ended September 31, 2021, filed with the Securities and Exchange Commission on April 4, 2022, that on October 5, 2021, the parties to a shareholder class action litigation executed a term sheet for settlement of the litigation, subject to documentation of the settlement and approval of the District Court after notice to class members. Case was originally filed on January 3, 2018 in the United States District Court for the District of Delaware against the company and certain of its officers on behalf of all persons who purchased or otherwise acquired its stock between June 29, 2016 and April 3, 2017. It was then transferred on April 30, 2018, to the United States District Court for the Northern District of Georgia and subsequently were consolidated as "In re Acuity Brands, Inc. Securities Litigation," Civil Action No. 1:18-cv-02140-MHC (N.D. Ga.) On October 5, 2018, the court-appointed lead plaintiff filed a consolidated amended class action complaint. On December 2, 2021, the lead plaintiff in the case filed an unopposed motion seeking preliminary approval of the settlement. Acuity Brands, Inc. is an industrial technology company solving problems in spaces and light through the development of lighting, lighting controls, building management systems and location-aware applications. ADVANCED PLUMBING: NSW Supreme Court Rules on Class Action ---------------------------------------------------------- Matt McDonald, Esq., and Natasha Curry, Esq., of Hall & Wilcox, report that the NSW Supreme Court has delivered judgment in Ritchie v Advanced Plumbing and Drains Pty Ltd, a class action brought by Maddens Lawyers on behalf of victims of the Carwoola bushfire, which occurred on 17 February 2017. The bushfire occurred on a total fire ban day, when a power cutter used by Advanced Plumbing to cut steel reinforcement for use in slab footings caused sparks that ignited dry grass in an adjacent paddock. Advanced Plumbing was placed in liquidation and the trial proceeded against its liability insurer, CGU Insurance, which denied indemnity on several grounds and was joined under section 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). Justice Davies rejected CGU's argument that the construction of footings for a concrete slab fell outside the definition of Advanced Plumbing's business, which was described as 'Principally Plumbing and any other activities incidental thereto'. It was held that the relevant activities, which were incidental to the plumbing business, fell within this broad business description. The Court also rejected CGU's argument that Advanced Plumbing breached the reasonable precautions policy condition by recklessly conducting hot works on a day of total fire ban. In the context of a public liability policy, it was held that CGU was required to establish that Advanced Plumbing's workers acted recklessly and subjectively courted the risk of a known danger. While the evidence clearly established negligence on the part of the workers, there was no evidence that they had an actual, subjective awareness of a risk of bushfire from the sparks, which they disregarded. CGU also relied on a welding endorsement that excludes cover in the event that the relevant Australian Standard for hot works is not strictly complied with. The plaintiff argued the endorsement was not engaged because the power cutter did not fall within its definition of 'electric cutting' or 'spark producing equipment'. However, the consensus between the two welding experts was that the power cutter emitted sparks when used on metal and the Court therefore found that the welding endorsement was engaged. Noting the expert consensus that Advanced Plumbing did not comply with AS 1674, Part 1 -- 1997 'Safety in Welding and Allied Processes -- Fire Precautions', Justice Davies had no hesitation in finding that CGU was entitled to rely on the exclusion to decline cover. The upshot, subject to any appeal, is that the Carwoola bushfire class action has failed. Interestingly, the judgment contained no analysis on whether the welding endorsement requiring strict compliance with AS1674 should be read down as a 'reasonable precautions' condition, such that CGU would need to establish recklessness. In a somewhat analogous case decided last year by the Victorian Supreme Court it was held that a policy condition requiring compliance with the Australian Standard for scaffolding works should be read down so that the insurer needed to prove recklessness. It remains to be seen whether the class action will appeal the judgment. Ritchie v Advanced Plumbing and Drains Pty Ltd [2022] NSWSC 330 [GN] AFRICAN METHODIST: AARP Lawyers to Act as Class Action Co-Counsel ----------------------------------------------------------------- Anne Stych, writing for Religion Unplugged, reports that AARP Foundation attorneys will act as co-counsel in a class-action lawsuit alleging the African Methodist Episcopal Church mishandled nearly $90 million in retirement funds, the organization said. The AME stopped making payments to retired ministers covered by its pension plan earlier this year after a 2021 audit found that two-thirds of the denomination's retirement funds had been lost in risky investments in a venture capital company and a real estate deal. The lawsuit was filed March 22 in the U.S. District Court for the District of Maryland by the law firm Kantor and Kantor on behalf of about 5,000 former and current clergy and other employees of the AME Church who were allegedly led to falsely believe through financial statements that their investments were growing, per PlanAdviser. The suit names the AME Church's Department of Retirement Services as well as financial advisers Newport Group Inc. and Symetra Financial Corp. as defendants, saying they should have known the information provided to participants was inaccurate. The lead plaintiff in the lawsuit is the Rev. Cedric Alexander, a recently retired AME minister and presiding elder of the California Conference. The AME Church is the oldest Black church in the United States and one of the largest Protestant denominations in the country, with more than 2.5 million members. Ministers and other employees were required to contribute a portion of their salaries into the retirement plan and could choose to invest more. The suit said AME retirement plan participants had been told all along that their money was being conservatively invested in a life insurance company, and that they were covered for losses under the federal Employee Retirement Income Security Act. But when the loss was disclosed to plan participants in February, they also were informed that because of its church affiliation, the retirement plan was in fact excluded from ERISA coverage. Alexander said he was among participants who believed that his AME retirement account, which held approximately $90,000, was protected by ERISA. "As a result of gross financial mishandling, nearly 5,000 pastors, church elders and other employees find themselves contemplating a future without the retirement funds they were depending on," said William Alvarado Rivera, senior vice president of litigation at AARP Foundation. "These employees and retirees served their community for years, some even decades, and justice requires they receive their deserved earnings they were promised." [GN] AFRICAN METHODIST: Class Actions Pile Up Over Pension Funds ----------------------------------------------------------- Bob Smietana, writing for Religion News Service, reports that Retired African Methodist Episcopal Church pastors have filed at least three federal class-action lawsuits alleging the church mishandled tens of millions of dollars in pension funds. Last month, AME leaders stopped making payments to retirees after discovering alleged financial irregularities in the church's pension fund. According to a lawsuit filed in the Southern Division of the United States District Court of Maryland, the former leader of the church's Department of Retirement Services "invested Plan assets in imprudent, extraordinarily risky investments that ultimately lost nearly $100 million of Plan participants' retirement savings." Church officials allegedly gave sole authority over the pension fund to the former head of retirement services for the AME with little or no oversight, according to the lawsuit. That led to investments in the purchase of Florida land, a loan to a solar panel installer and investment "in a now non-existent capital venture outlet." The lawsuit alleges church officials have admitted the pension plan -- which was valued at $126 million in June 2021 -- has lost at least $90 million and that "no one connected with the Church" knew where the money had gone, except for the former head of retirement services. The suit was filed on behalf of the Rev. Cedric Alexander, a retired pastor from Maryland, and names the former head of retirement services, the trustees of the retirement fund, the AME and its bishops, among others. Alexander is one of thousands of retired clergy and church workers affected by the pension plan crisis. "As a result of the African Methodist Episcopal Church's gross financial mishandling, nearly 5,000 pastors, church elders, and other employees find themselves contemplating a future without the retirement funds they were depending on," said William Alvarado Rivera, senior vice president of litigation at AARP Foundation, which is helping represent Alexander, in a statement. In an interview, Rivera said the AARP Foundation has long been concerned about church pension plans, as many of them are not covered by federal legislation known as the Employee Retirement Income Security Act of 1974, which covers most pension plans in the United States. The foundation is currently suing a Catholic diocese in New York over its pension plan. Rivera said the focus of the lawsuit is the well-being of AME church retirees, many of whom rely on their church pension to pay their bills. "Our focus is very much on making sure that the pension and retirement plan beneficiaries are made whole," he said. Similar lawsuits have been filed in Tennessee and Virginia. In an update published in late March, AME church officials said they became aware of problems with the church pension plan after a leadership transition in 2021 revealed "possible financial irregularities." "Out of an abundance of caution, we immediately engaged outside legal counsel and forensics experts to conduct an independent and comprehensive investigation," church leaders said in the update. "We continue to actively work with federal authorities who are investigating this matter and recover any misappropriated funds. " Church leaders have also said they are cooperating with federal officials who are investigating the pension fund. They have also set up a task force to look into the pension plan crisis and to develop "a plan of reorganization, recovery, and restoration for fund participants." "The AME Church is committed to making every fund participant whole by restoring their full investment plus interest," church leaders said in the Frequently Asked Questions section of their March update. Rivera said he hopes the lawsuit can proceed quickly, in part because church leaders have admitted there are problems. "So having a case like this drag out, unnecessarily, really only harms the people who really dedicated their careers and many years of their lives to the church," he said. "And we hope that they will work to resolve this as quickly as possible." Founded in the late 1700s by former slaves who had been part of Methodist churches, the African Methodist Episcopal Church is one of the nation's most prominent Black Protestant denominations. The denomination, which was claimed as many as 2.5 million members in the past, is a hierarchical church led primarily by its bishops. [GN] AFRICAN METHODIST: Faces Second Class Action Over Pension Funds --------------------------------------------------------------- Paul Meara, writing for BET, reports that a second lawsuit has been filed against AME Church and it alleges that the global denomination's retirement fund was mishandled, which led to an alleged $90 million loss in retirement fund investments meant to support thousands of pastors and others. According to the Atlanta Journal-Constitution, the AARP Foundation has joined as co-counsels in a Maryland-based suit against the AME Church, filed on March 22 in U.S. District Court in the state by the firm Kantor & Kantor. Both plaintiffs are seeking class action status due to the number of potential victims who may consider legal action. Both lawsuits claim millions of dollars were mismanaged, leaving clergy of the church and other retirees holding the bag when it comes to their portion of the investment, which was intended to help people retire. The AJC reports that the suit claims people "dedicated themselves for years working for the church and were promised that the savings were invested conservatively and then it turns out that was not true," according to William Alvarado Rivera, senior vice president of litigation at AARP Foundation. "It's a real tragedy." The defendants named in the lawsuit include the former executive director of the AME's Department of Retirement Services and several others. The Nashville-based AME Church said it was investigating "possible financial irregularities" in retirement fund investments the church currently holds. According to the Wall Street Journal, the African Methodist Episcopal Church, which has reported as many as 2.5 million members, suspended the pension payments to retirees after it found possible financial irregularities in the denomination's pension fund last month. The church stated via a press release that an outside regulation agency is investigating "a doable monetary crime." It's unknown how much money is being investigated but the funds include contributions from 5,000 people, including ministers and bishops. The press release read, "The AME Church takes this crime severely. We're additionally dedicated to creating each fund participant complete by restoring their full funding plus curiosity." The WSJ reports that, as of 2017, the church had approximately $120 million in retirement assets. Church pensions are exempt from federal regulation laws and are not covered by federal insurance, according to the Pension Rights Center. Back in February, Bishop Jeffrey N. Leath of the AME's 13th Episcopal District in Tennessee, wrote on his blog that the pension fund was "overvalued by as much as 70%" and added, "The fix will be large, painful, and not loved by anyone. Let's gird up our loins and DO IT." Leath has not spoken out about the recent suspension of retirement benefits. [GN] AFRICAN METHODIST: Over $90M Missing From Pension Funds, Suit Says ------------------------------------------------------------------ Derek Major at blackenterprise.com reports that at least three lawsuits have been filed against the African Methodist Episcopal (AME) Church, claiming that it mishandled its retirement fund, leading to a $90 million loss. The Post and Courier (SC) reported that a class action suit was filed in the Southern Division of the United States District Court of Maryland on behalf of more than 5,000 eligible retirees. According to the suit, the AME Church lost at least $90 million, or about 70 percent, of its retirement fund due to irresponsible investments. The suit adds that church officials gave sole authority of the pension fund to AME's head of retirement services with no oversight. As a result, the fund invested in the purchase of Florida land, a loan to a solar panel installer, and investment "in a now non-existent capital venture outlet." At least three lawsuits have been filed against the African Methodist Episcopal (AME) Church, claiming that it mishandled its retirement fund, leading to a $90 million loss. The Post and Courier (SC) reported that a class action suit was filed in the Southern Division of the United States District Court of Maryland on behalf of more than 5,000 eligible retirees. According to the suit, the AME Church lost at least $90 million, or about 70 percent, of its retirement fund due to irresponsible investments. The suit adds that church officials gave sole authority of the pension fund to AME's head of retirement services with no oversight. As a result, the fund invested in the purchase of Florida land, a loan to a solar panel installer, and investment "in a now non-existent capital venture outlet." Russell Wilson, Ciara Cozy Up In Their Newly Purchased $25 Million Mansion In Colorado The class-action suit also claims church officials admitted the pension, which was valued at $126 million last year, has lost more than $90 million. Additionally, "no one connected with the Church" knows what happened to the money except the former head of retirement services. "As a result of the African Methodist Episcopal Church's gross financial mishandling, nearly 5,000 pastors, church elders, and other employees find themselves contemplating a future without the retirement funds they were depending on," William Alvarado Rivera, senior vice president of litigation at AARP Foundation said according to Religion News Service. Defendants include Jerome Harris, the former executive director of AME's Department of Retirement Services and South Carolina Bishop Samuel L. Green. AME's general board and council of bishops have also been named. Harris was sued in 2006 by Dorsey McCullough for mismanagement of annuity, but the case was dismissed due to a technicality. AME Church officials acknowledged in an update published last month that it became aware of problems with its pension plan after a leadership change last year revealed "financial irregularities." "Out of an abundance of caution, we immediately engaged outside legal counsel and forensics experts to conduct an independent and comprehensive investigation," AME Church leaders said in the update. "We continue to actively work with federal authorities who are investigating this matter and recover any misappropriated funds." AME leaders are also cooperating with federal officials who are also investigating what happened to the pension fund. [GN] ALMAY INC: Makeup Contains Harmful Chemicals, Lawsuit Claims ------------------------------------------------------------ Jessy Edwards, writing for Top Class Actions, reports that three Almay makeup customers are suing the brand and its parent company, Revlon, saying the makeup purports to be clean and healthy, but actually contains harmful chemicals. Plaintiffs Kelly Anderson, Audrey McCauley, and Tania Pokorski filed the class action complaint April 1 against Almay Inc. and Revlon, Inc. in a New York federal court, alleging violations of state and federal consumer laws. The plaintiffs want to represent anyone who purchased Almay products, which are marketed as clean, healthy, and non-toxic cosmetic products but which the lawsuit alleges actually contain harmful per- and polyfluoroalkyl substances (PFAS). According to the lawsuit, Almay has cultivated an image of being a clean and affordable brand since the 1930s, and its products are now widely available at grocery stores, drug stores, and mass market retailers across the United States. In 1987, the company was bought by Revlon. Almay was the first brand to create a hypoallergenic makeup that eliminated ingredients known to cause irritation to the skin. Today, Almay specifically markets itself as a clean makeup brand, which it defines, in part, as being "extremely selective" about what ingredients are included in its products, the lawsuit states. Despite this, the Almay products now contain potentially harmful chemicals that are in no way clean or healthy, the lawsuit states. The plaintiffs say they know this through independent testing. Exposure to high levels of PFAS may impact the immune system and reduce antibody responses to vaccines, and may impact pregnant women and their babies. "Defendants do not disclose that the Products contain PFAS, a chemical which is entirely inconsistent with Defendants' marketing and advertising, and the disclosure of which would inevitably impact their sales and standing in the clean beauty market," the lawsuit states. "No reasonable consumer would deem the Products clean if they knew that they contained harmful PFAS." The plaintiffs allege that not only do the PFAs make the products harmful to skin, they also make them less valuable or even worthless. They're looking to represent anyone who bought an Almay product for personal use. The plaintiffs are suing for breach of warranty, negligent misrepresentation, fraud, and under state consumer law. The lawsuit is seeking certification of the class action, fees, costs, damages, interest and a jury trial. Meanwhile, the Clorox Company and The Burt's Bees Products Company are facing a class action lawsuit alleging Burt's Bees cosmetic products contain unsafe "forever chemicals" that pose a risk to human health. The ingredients cosmetics contain have also led to a number of class action lawsuits. Check out our list of the worst makeup brands in the United States according to lawsuits and customer complaints. The plaintiffs are represented by Andrei Rado, Rachel Soffin, Harper T. Segui and Erin Ruben of Milberg Coleman Bryson Phillips Grossman PLLC and Melissa S. Weiner of Pearson, Simon & Warshaw, LLP. The Almay and Revlon Class Action Lawsuit is Kelly Anderson et al, v. Almay, Inc and Revlon, Inc, Case No. 1:22-cv-02722 in the U.S. District Court Southern District of New York [GN] ALPHABET INC: Faces Class Suit Over Mapping APIs' Market Control ---------------------------------------------------------------- DREAM BIG MEDIA, INC., GETIFY SOLUTIONS, INC., and SPRINTER SUPPLIER LLC, individually and on behalf of all others similarly situated, Plaintiffs v. ALPHABET INC. and GOOGLE LLC, Defendants, Case No. 3:22-cv-02314 (N.D. Cal., April 13, 2022) is a class action against the Defendants for violations of the Sherman Antitrust Act, Clayton Act, and California's Unfair Competition Law. The case arises from Google's alleged anticompetitive practices in the relevant product markets for digital-mapping application programming interfaces (APIs). Google's terms of service prohibit users from using any Google Maps API or component with any API or component of any other digital-mapping provider or service, which constitute separate and distinct products. Google goes so far as to prohibit display of non-Google digital maps near their own maps on an application or web page. Google has forced users of its digital-mapping products and once locked in, Google ratchets up the cost on its mapping products. The Plaintiffs and Class members have been harmed by Google's improper tying of its mapping products together to restrain competition. Dream Big Media, Inc. is a digital-advertising business based in California. Getify Solutions, Inc. is a software developer based in Texas. Sprinter Supplier LLC is an e-commerce automotive parts shop owner based in Pennsylvania. Alphabet Inc. is an American multinational technology conglomerate holding company, with its principal place of business at 1600 Amphitheatre Parkway, Mountain View, California. Google LLC is a technology company, with its principal place of business at 1600 Amphitheatre Parkway, Mountain View, California. [BN] The Plaintiffs are represented by: Mario Simonyan, Esq. ESQGo, PC 303 North Glenoaks Boulevard, Suite 200 Burbank, CA 91502 Telephone: (424) 363-6233 E-mail: mario@esqgo.com - and – Justin S. Nematzadeh, Esq. NEMATZADEH PLLC 101 Avenue of the Americas, Suite 909 New York, NY 10013 Telephone: (646) 799-6729 E-mail: jsn@nematlawyers.com - and – John G. Balestriere, Esq. Matthew W. Schmidt, Esq. BALESTRIERE FARIELLO 225 Broadway, 29th Floor New York, NY 10007 Telephone: (212) 374-5401 Facsimile: (212) 208-2613 E-mail: john.balestriere@balestrierefariello.com matthew.schmidt@balestrierefariello.com ALPHABET INC: Pair of Derivative Complaints Target Executives ------------------------------------------------------------- Abraham Jewett at topclassactions.com reports that executive mismanagement by Alphabet Inc. could cost Google's parent company billions of dollars in damages, harming investors, a pair of new derivative complaints allege. Plaintiffs Bucks County Employee' Retirement System and the Police and Fire Department System of the City of Detroit separately claim Alphabet executives have long-engaged in antitrust and monopolistic activities. "Alphabet and Google have suffered reputational harm that is difficult to value," states Bucks County's complaint. "In addition, they could be liable for billions of dollars in damages when the antitrust actions conclude." Plaintiffs argue that ongoing litigation into Alphabet's anticompetitive practices is costing the company millions of dollars while also interrupting business operations. The claims center around Google's alleged use of its search engine, navigation and digital advertising dominance to gain an advantage on its competitors. Plaintiffs also point to the fact that Google is facing Congressional scrutiny and that its Google Play Store is currently involved in a number of private antitrust complaints. "These lawsuits have become so numerous that many lawsuits relating to advertising and the Google Play Store have been consolidated into MDLs in California and New York," the plaintiffs say. Lawsuits Name Specific Alphabet Executives As Defendants Both lawsuits name specific Alphabet executives as defendants, including Larry Page and Sergey Brin, Google's co-founders and Alphabet's previous CEO and president, respectively. The Police and Fire Department System of the City of Detroit claims Brin and Page have "not been shy to directly implicate himself in violations of antitrust laws," pointing to anti-poaching practices Brin was allegedly "intimately involved in." The Alphabet Executives Antitrust Lawsuits are Police and Fire Retirement System of the City of Detroit v. Page, et al., Case No. 5:21-cv-09388, in the U.S. District Court for the Northern District of California; and Bucks County Employees' Retirement System v. Page, et al., Case No. 5:21-cv-09389, in the U.S. District Court for the Northern District of California. [GN] AMAZON LOGISTICS: Faces Class Action in Seattle Over DSP Program ---------------------------------------------------------------- Christina Tabacco, writing for Law Street, reports that Fli-Lo Falcon LLC, a transportation and logistics company which entered into a contract to deliver packages for Amazon Logistics Inc. (ALI), has filed suit against the company over broken promises related to Amazon's "Delivery Service Partners" (DSP) program and contract. The Seattle, Washington-filed complaint asserts that Amazon falsely offers DSPs much more revenue and autonomy than they actually receive in violation of Washington's Franchise Investment Protection Act (FIPA). The filing explains that DSPs contract with Amazon as small package deliverers, typically with a fleet of 20 to 40 Amazon-branded vans, and pursuant to a DSP agreement. According to the complaint, the purpose of the DSP Program "is to shield Amazon from its responsibilities to delivery drivers and the public." Fli-Lo argues that Amazon misrepresents two key aspects of its business agreements with DSPs. First, the complaint says that Amazon exaggerates the earnings DSPs can achieve. It allegedly advertises profits between $75,000 and $300,000 annually, yet as of February 2022, the average annual pay for an Amazon DSP was $63,874 per year. Second, the lawsuit accuses Amazon of misrepresenting the degree of control DSPs exercise over their businesses, stating that their operations are "dictated and run by Amazon through ALI." The filing also urges that DSPs must make capital investments and use certain vendors under Amazon's terms. Further, DSPs are restricted from making material adjustments to increase their profits though they retain liability for acts of their drivers, who are pressed to meet the delivery schedules prescribed by ALI. Finally, the complaint says, DSPs are assessed exit costs by ALI if they try to end their participation in the DSP program. The complaint contends Amazon engaged in fraud and fraudulent inducement, breached the implied covenant of good faith and fair dealing, and violated the state of Washington's Consumer Protection Act based on violations of its FIPA. It seeks certification of a class of DSPs, of which there were approximately 2,500 as of December 2021, and damages on their behalf. Fli-Lo and the putative class are represented by Breskin Johnson Townsend PLLC and Kirby McInerney LLP. [GN] AMAZON.COM INC: Court Tosses Unjust Enrichment Claim in Hogan Suit ------------------------------------------------------------------ In the case, ANGELA HOGAN and B.H., a minor, by and through his guardian ANGELA HOGAN, individually and on behalf of all others similarly situated, Plaintiffs v. AMAZON.COM, INC., Defendant, Case No. 21 C 3169 (N.D. Ill.), Judge Harry D. Leinenweber of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part Amazon's Motion to Dismiss the Complaint. I. Background Plaintiffs Hogan and B.H., a minor, bring the putative class action individually and on behalf of similarly situated individuals against Defendant Amazon. The Plaintiffs allege that Amazon violated Section 15(a)-(c) of the Illinois Biometric Information Privacy Act ("BIPA"). They also bring a claim for unjust enrichment. The Plaintiffs are citizens of Illinois who are filing suit against Amazon based on Amazon's collection of biometric data through its Amazon Photos service. Amazon launched Amazon photos in November 2014 to provide users with unlimited photo storage. Amazon Prime subscribers have automatic access to Amazon photos. Prime subscribers may also grant access to up to five people access to Amazon Photos through a service called Family Vault. A person who joins a family vault receives a free Amazon Photos account, even if they are not a Prime member. Amazon Photos includes Amazon's image recognition technology. Any time a user uploads a photograph containing a person's face, Amazon scans the person's face and obtains their biometric identifiers. Amazon's image recognition technology scans the face of every person appearing in a photo uploaded to Amazon Photos, regardless of whether that person is a user of the service or not. This feature is automatically enabled when a user signs up for Amazon Photos, unless the user is an Illinois resident. If the user is an Illinois resident, image recognition is disabled and must be manually enabled by the user. When a user enables image recognition they are provided with a link to "important legal information," including that "Illinois state law may require the informed written consent from an Illinois resident before performing image recognition on photos that include his or her face." Amazon Prime users can disable Amazon Photos' image recognition feature at any time. However, a Family Vault user cannot disable image recognition if the Amazon Prime user who invited them has not disabled the feature. In January 2017, Amazon launched Rekognition, a technology that analyzed photos and provided object and scene detection, facial analysis, face comparison, and facial recognition. Rekognition was "trained" by analyzing the images users uploaded to Amazon Photos. Rekognition would store and analyze the biometric identifiers collected through Amazon Photos to make the service more accurate and marketable. Amazon sells its Rekognition technology to business, governments, and other organizations. Amazon Photos' users were not specifically informed that their images were being processed through Rekognition. Plaintiff Hogan began using Amazon Photos in January 2021. The application was linked to Hogan's Amazon Prime account. Hogan used Amazon Photos to store numerous images of Hogan and B.H. Because the image recognition feature was enabled, Amazon scanned the Plaintiffs' faces, collecting and storing their biometric information. The Plaintiffs state that they never received any information about how long their biometric information would be stored, used, or when it would be destroyed. They state that they were not notified that Amazon would use their biometric data to improve its Rekognition technology. As a result, the Plaintiffs filed suit against Amazon, alleging violations of Section 15(a)-(c) of BIPA. They originally filed their case in Cook County Circuit Court, but it was removed to the Court. Amazon moved to dismiss the Complaint, making two main arguments. Amazon's first argument is that the Plaintiffs agreed to the Amazon Photos Terms of Use ("TOUs") and Amazon's Conditions of Use ("COUs"), which specify that disputes are governed by Washington law. Its second argument is that the Plaintiffs do not state claims in which relief can be granted under BIPA. Amazon also argues that the Plaintiffs cannot state a claim for unjust enrichment because it is based on the same conduct as the BIPA claims. II. Discussion Before ruling on the motion to dismiss, Judge Leinenweber must deal with two predicate issues. First, he must first decide which documents can fairly be considered in his analysis. Second, he must determine what state law governs the Plaintiffs' claims. A. Incorporation-by-Reference Amazon attaches seven documents to its motion to dismiss. They are as follows: Amazon Photos' TOUs; Amazon's COUs; Amazon's privacy notice; Amazon's file retention policy; a brief filed in a separate case in the Northern District of California; Amazon's notice to Illinois Residents; and a transcript of proceedings from the Illinois House of Representatives session from May 30, 2008, when the House passed BIPA. Judge Leinenweber finds that the incorporation-by-reference doctrine applies to some, but not all, of the attached documents. He considers the TOUs and the notice to Illinois residents because both are quoted in the Complaint and are central to the Plaintiffs' claims. He will also exercise discretion to consider the COUs. He will consider the COUs, as well as the TOUs, and the notice to Illinois residents when ruling on Amazon's Motion to Dismiss. Judge Leinenweber declines to consider the other attached documents, which consist of Amazon's privacy notice, Amazon's file retention policy, the brief in the California case, and the transcript of the Illinois House of Representatives session. He says none of these documents are referred to in the Plaintiffs' Complaint. A brief in an entirely separate case and the legislative history behind BIPA are not central to the Plaintiffs' claims. Both Amazon's privacy notice and its file retention policy are linked in the TOUs. However, neither document specifically mentions how Amazon treats biometric information or identifiers, so they are not central to the Plaintiffs' claims. B. The Choice-of-Law Provision The law treats minors differently in contract law, and as a result the parties agree in the first instance that B.H. was not party to the contract, and the Court will analyze his position separately. In the case, both parties agree that the parties entered a valid contract and Illinois law applies Amazon's choice-of-law provision. The parties' dispute whether Illinois law requires the suit to be governed by Washington law. Because the choice-of-law provision applies to both Plaintiffs' BIPA claims and the unjust enrichment claim, Judge Leinenweber analyzes the choice-of-law decision for both claims in turn. First, he opines that the line of cases that Amazon cites is evidence that courts do not consider the Consumer Fraud Act to be fundamental Illinois public policy, but it sheds no light on the status of BIPA. Every state has a consumer protection law, most of which allows individuals to file suit on their own behalf. That is not the case at hand. Thus, Judge Leinenweber finds that the choice-of-law provision is contrary to Illinois' fundamental public policy in the case. Because he finds that the choice-of-law provision violates fundamental Illinois' public policy, he does not reach the Plaintiffs' additional arguments. Judge Leinenweber next turns to the issue of whether Washington or Illinois has a materially greater interest in this dispute. He finds that Illinois has the greater material interest in this dispute. The fact that Amazon is headquartered in Washington and employs workers there does not give Washington a greater interest. Illinois has the greater material interest in this dispute and he will not enforce the choice-of-law provision. Hogan's claims will be evaluated using Illinois law under BIPA. Lastly, since the Court is not enforcing the choice-of-law provision for Hogan, it cannot be binding on B.H. either. B.H.'s claims will also be evaluated using Illinois law under BIPA. Second, Judge Leinenweber finds that the choice-of-law analysis for the Plaintiffs' unjust enrichment claim is much simpler. The decision in what law to apply will make no difference in the ultimate outcome of the claim. The elements of unjust enrichment are largely similar in both states. As the choice of law will make no difference in outcome, Judge Leinenweber applies Illinois law to the unjust enrichment claim as well. C. Plaintiffs' BIPA Claims The Plaintiffs' Complaint alleges that Amazon violated BIPA Section 15, subsections (a), (b), and (c). 1. Plaintiffs' 15(a) Claim When asserting claims under Section 15(a), a plaintiff has standing to assert a claim of unlawful retention of biometric data beyond the time limits set within that section. However, when a plaintiff's 15(a) claim only alleges that a defendant did not create a publicly available written policy governing the retention of biometric identifiers and information, they lack standing. The Plaintiffs claim that Amazon violated Section 15(a) of BIPA by failing to create a publicly available written policy governing the retention of biometric identifiers and information. Importantly, when pleading its 15(a) claim, the Plaintiffs' Complaint does not allege that Amazon unlawfully retained biometric data beyond the legal time limit. The Complaint simply alleges that Amazon failed to create a retention policy. As such, the Plaintiffs lack standing to bring this claim in federal court. Because the action began in state court, and because the standing requirements in Illinois state court differ, Judge Leinenweber remands, rather than dismisses the Plaintiffs' Section 15(a) claims. 2. Plaintiffs' Section 15(b) Claims BIPA Section 15(b) prohibits a private entity from obtaining a person's biometric identifier or biometric information unless it satisfies three conditions. First, the entity must inform the subject in writing that it is collecting or storing biometric information. Second, it must inform the subject in writing of the specific purpose and length of term that the information is being collected, stored, and used. Third, it must receive a written release from the subject. A biometric identifier is defined as a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry. Judge Leinenweber finds that the Plaintiffs have standing to bring their 15(b) claim. In essence, they allege that they lacked the information necessary to give informed consent to use of Amazon Photos. He also finds that the Plaintiffs have stated a 15(b) claim upon which relief can be granted. The Plaintiffs argue that Amazon did not comply with its statutory notice and informed consent requirements. As such, the Plaintiffs have sufficiently pled claims for violations of 15(b). 3. Section 15(c) Section 15(c) of BIPA states that no private entity in possession of a biometric identifier or biometric information may sell, lease, trade, or otherwise profit from a person's or a customer's biometric identifier or biometric information. Judge Leinenweber finds that the Plaintiffs do not have standing to bring their 15(c) claim. The Plaintiffs allege that Amazon violated 15(c) because it used the images uploaded to Amazon Photos to train Rekognition, which it then sold to third parties. However, the Plaintiffs do not allege that they were specifically harmed. They do not plead facts to show that their images were specifically used to better the Rekognition technology or make it more marketable. As the Plaintiffs fail to plead facts showing how they were affected by Amazon's profiting from Rekognition, they cannot show a particularized injury-in-fact. As a result, the Plaintiffs do not have standing to maintain their claim in the Court. Judge Leinenweber remands the Plaintiffs' Section 15(c) claims. D. Plaintiffs' Unjust Enrichment Claim Judge Leinenweber opines that the Plaintiffs' claims in this case are too attenuated to state an unjust enrichment claim. The Plaintiffs do not allege which images are being used unjustly. Further, they do not allege facts to show exactly how Amazon is profiting from Plaintiffs' images. Even if Amazon was using the Plaintiffs' images to train Rekognition, they fail to allege how their specific images made Rekognition more valuable or profitable to Amazon. As a result, the Plaintiffs have not sufficiently pled a claim of unjust enrichment. Judge Leinenweber dismisses the claim. III. Conclusion For the reasons he stated, Judge Leinenweber denied in part Amazon's Motion to Dismiss as to the Plaintiff's BIPA Section 15(b) claim and granted as to the Plaintiffs' unjust enrichment claim. The Plaintiff's BIPA Section 15(a) and 15(c) claims are remanded to Cook County Circuit Court. A full-text copy of the Court's March 30, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/449njcej from Leagle.com. AMAZON.COM INC: Faces Class Action Suit From Delivery Partners -------------------------------------------------------------- Lauren Rosenblatt at Seattle Times reports that Wyoming company is escalating the fight between Amazon and its network of delivery company partners that help get packages around the country from warehouse to doorstep. Amazon and Amazon Logistics, its transportation and logistics service, launched the Delivery Services Partners program in 2018, and billed it as a way for entrepreneurs to get a cut of the profits from the seemingly endless stream of online orders by setting up their own company and employing their own drivers. Since then, several delivery partners have accused Amazon Logistics of setting unrealistic -- and unsafe -- expectations for drivers, controlling most aspects of the independently owned companies' operations and overstating potential profits for each business owner. Two delivery partners operating in Oregon and one in North Carolina have sued Amazon over the allegations. Now, Wyoming-based Fli-Lo Falcon and owner Max Whitfield are going one step further with a class-action lawsuit filed in U.S. District Court in Seattle on behalf of Amazon's estimated 2,500 delivery service partners in the U.S. "The purpose of the DSP program is to shield Amazon from its responsibility to delivery drivers and the public," the lawsuit read. "Amazon, by and through [Amazon Logistics], exercises near complete control over the DSPs but fails to provide the required safeguards" under Washington law. [GN] AMENTUM SERVICES: Weaver Suit Remanded to San Diego Superior Court ------------------------------------------------------------------ In the case, STEPHEN V. WEAVER, individually, and on behalf of all others similarly situated, Plaintiff v. AMENTUM SERVICES, INC.; AECOM.; and DOES 1 through 20, inclusive, Defendants, Case No. 22-cv-00108-AJB-NLS (S.D. Cal.), Judge Anthony J. Battaglia of the U.S. District Court for the Southern District of California: (i) granted the Plaintiff's motion to remand; and (ii) denied as moot the Defendant's motion to dismiss. I. Background The Plaintiff is a former nonexempt employee of Defendant Amentum within the State of California and brings the suit on behalf of himself and all class members. The Plaintiff originally filed the action in San Diego Superior Court on Nov. 24, 2021. The lawsuit was brought on behalf of the Plaintiff and "a putative class of California citizens who are and were employed by the Defendants as non-exempt employees throughout California." The Plaintiff asserts eight causes of action against the Defendant: (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) unpaid meal period premiums; (4) unpaid rest period premiums; (5) failure to reimburse business expenses; (6) itemized wage statement penalties; (7) failure to pay all wages due upon separation of employment; and (8) violation of California Business and Professions Code Sections 17200 et seq. ("UCL"). On Jan. 6, 2022, Defendant Amentum timely removed the action. The Plaintiff thereafter filed the instant motion alleging the Complaint fails to meet the minimum amount-in-controversy necessary for jurisdiction under CAFA. The Defendant also filed a motion to dismiss the Complaint. II. Discussion The parties dispute the "amount in controversy" element of CAFA jurisdiction. Judge Battaglia first addresses the motion to remand. Because the issue is dispositive, he need not reach the merits of the Defendant's motion to dismiss. A. Meal and Rest Break Claims Judge Battaglia first considers the amount in controversy calculations concerning the Plaintiff's meal and rest break claims. The Plaintiff alleges the Defendant "engaged in a systematic pattern of wage and hour violations" and that he and the purported class "did not receive all meal or rest breaks or payment of one (1) additional hour of pay at the Plaintiff's and the Class Members' regular rate of pay when a rest or meal break was missed, late, or interrupted." The Defendant focuses on the Plaintiff's use of the phrase "systematic pattern of wage and hour violations" to characterize the consistency of the Defendant's alleged violations. It makes the following assumptions regarding the amount-in-controversy calculations for Plaintiff's meal and rest break claims: The "Defendant employed over 1,500 non-exempt full-time employees during the putative Class Period." These non-exempt employees "generally worked full-time, eight-hour shifts, five days a week." The Defendant further states the "average hourly rate of pay is $28.81" and that the "putative class worked over 100,000 workweeks" during the class period. It assumes "one violation per work week is reasonable and conservative." One missed meal and one missed rest break per week is, effectively, a 20% violation rate. It previously calculated the amount in controversy for CAFA jurisdiction was at least $5,762,000, based on just two of the Plaintiff's claims alone. However, in the Defendant's opposition to the Plaintiff's motion to remand, it newly calculates the amount in controversy for the Plaintiff's meal and rest break claims to be $28,810,000 (100,000 workweeks x 5 shifts per week x $28.81 premium penalty at 1 hour of class members' average rate of pay x 2 [one meal break and one rest period premium per shift]). The Defendant submits the Declaration of May Sebastian, Manager of Human Resources Management Systems for Defendant, for the above figures. The Plaintiff maintains the Defendant's violation rate is not supported by the evidence. Upon review of the pleadings and evidence submitted, Judge Battgalia finds that the Defendant offers no reason "grounded in real evidence" as to why a 20% violation rate is appropriate. Ms. Sebastian's declaration does not include any information relevant to the frequency of meal and rest break violations. While Ms. Sebastian's declaration does include useful data regarding the potential class size and hourly wages, there is no evidence that would lead the Court to believe that the Defendant's assumptions were not "pulled from thin air." Because use of either a 25% violation rate or a 50% violation rate would at a minimum be equally reasonable (or equally unreasonable), it is impossible for the Court to decide that the Defendant has satisfied its burden. Accordingly, Judge Battaglia finds the Defendant's meal and rest break violation rates to be unreasonable. B. Unpaid Minimum Wages and Overtime The Plaintiff further alleges the Defendant failed to pay minimum and overtime wages during the period in question. The Defendant argues that because the Plaintiff alleges a systematic pattern of violations without including facts regarding the frequency of the violations, it can assume one hour of unpaid overtime a week. Based on this violation rate, the Defendant asserts the amount in controversy for these two claims is $4,321,000. Judge Battalia holds that the Defendant offers no evidence supporting that a one-hour-per-workweek violation rate is suitable for calculation purposes. Without evidentiary support, he says, its violation rate is merely an assumption, seemingly plucked from thin air. Accordingly, he finds the Defendant's overtime and minimum wage violation rate to be unreasonable. C. Waiting Time Penalties The Defendant states that between May 30, 2018 and Nov. 24, 2021 (the Waiting Time Subclass period), over 650 non-exempt employees' employment was terminated and their average hourly rate of pay was approximately $28.74. It next asserts it failed to pay each Waiting Time Penalties Subclass member their outstanding wages for the full 30-day statutory period -- a 100% violation rate. However, the Defendant submits no proof that would enable the Court to probe this assumption, Judge Battaglia finds. Moreover, the nexus between the allegations in the Complaint and the Defendant's assumption that all former employees are still owed outstanding wages is too attenuated. As such, the Defendant's waiting time penalties violation rate to be unreasonable. D. Wage Statement Violations Judge Battaglia finds that the Plaintiff's wage-statement violation claims are derivative of his meal and rest period claims. The Plaintiff contends employees received inaccurate wage statements in part because the Defendant did not include the pay due to the employees for missed meal and rest periods. If the Defendant's calculations for missed meal and rest periods are faulty, then the wage statement violation calculations are also inherently flawed. Accordingly, the calculations for wage statement violations are unreasonable for amount in controversy purposes as well. E. Attorneys' Fees First, the Defendant asserts Plaintiff would seek to recover roughly $355,000, "in addition to $100,000 in costs." Judge Battaglia concludes the Defendant has not carried its burden of "proving that the amount in controversy (including attorneys' fees) exceeds the jurisdictional threshold by a preponderance of the evidence with summary-judgment-type evidence." While the Plaintiff has not offered an estimate of attorneys' fees, the Defendant has offered no evidence in support of its claim that attorneys' fees will amount to $355,000 "in addition to $100,000 in costs." Moreover, because the Court previously rejected the Defendant's calculations for the amount in controversy, the Defendant has failed "to prove that the amount in controversy (including attorneys' fees) exceeds the jurisdictional threshold by a preponderance of the evidence." The Defendant alternatively argues removal is proper for the Plaintiff's individual Labor Code claims pursuant to diversity jurisdiction under 28 U.S.C. Section 1332(a). It assets that the Plaintiff's claims, before accounting for attorney's fees and costs, amount to $16,698.80 in controversy. Judge Battaglia holds that the Plaintiff would be entitled to attorneys' fees upon a favorable disposition of the matter. However, the relevant sections of the California Labor Code do not authorize awards of attorneys' fees "solely to the named plaintiffs in a class action," but rather to "an employee" or "any employee" who prevails on his or her claim. Therefore, attorneys' fees "cannot be allocated solely to the Plaintiff for purposes of amount in controversy," but rather must be divided by the number of putative class members. Thus, the Defendant has not established that the amount in controversy exceeds $75,000. III. Discussion For the foregoing reasons, Judge Battaglia granted the Plaintiff's motion to remand and denied as moot the Defendant's motion to dismiss. A full-text copy of the Court's March 30, 2022 Order is available at https://tinyurl.com/4av6vmbb from Leagle.com. ANNAPOLIS, MD: Court Denies Bid to Dismiss Johnson Class Suit ------------------------------------------------------------- In the case, TAMARA JOHNSON, et al. v. CITY OF ANNAPOLIS, Civil Action No. CCB-21-1120 (D. Md.), Judge Catherine C. Blake of the U.S. District Court for the District of Maryland denied the City's motion to dismiss. I. Introduction Now pending is a motion to dismiss (or, in the alternative, for summary judgment) in a class action against the City of Annapolis. The case concerns a longstanding City policy of not inspecting and licensing public housing in Annapolis. It is a putative class action brought by Annapolis public housing residents who argue that the City's non-inspection policy violated their civil rights and had a disparate impact on African Americans: They allege violations of the Fair Housing Act, federal civil rights laws, and state constitutional rights. The City moved to dismiss or for summary judgment in Johnson. The matter has been fully briefed, and no oral argument is necessary. II. Background The lawsuit follows the events of White v. City of Annapolis, No. CCB-19-1442, a 2019 case before the Court in which 52 Annapolis public housing residents sued the City and the Housing Authority of the City of Annapolis (HACA) under a variety of federal and state causes of action. The White plaintiffs alleged that the City's decision not to enforce inspection and licensing requirements on public housing disparately impacted African Americans and was discriminatory. At the case's conclusion, the parties entered into a consent decree enacting a number of prospective equitable remedies intended to improve public housing, as well as paying monetary damages for the plaintiffs. The Annapolis City Code requires rental units to have operating licenses. To obtain an operating license, the rental units must be inspected and in compliance with the City's Residential Property and Maintenance Code. Landlords must pay a fee to obtain a license or a license renewal. For many years, however, the City did not require inspections and licensing of HACA properties; such properties were the only rental properties in Annapolis that are neither licensed nor inspected. This apparently was a longstanding arrangement, as although rental licenses have been required of landlords since approximately 1985, HACA housing units had "have never all been fully, finally, or properly inspected and licensed in accordance with the City Code." According to the Plaintiffs, Annapolis has a troubled history of racism against African Americans and people of African descent, including through discriminatory residential housing policies. The Johnson Plaintiffs allege that the City's policies around licensing and inspecting Annapolis public housing is an instance of that discrimination and has a disparate impact on African Americans. HACA manages about 790 units housing about 1,600 residents, spread over six public housing developments. Named Plaintiff Johnson lived in Harbor House, and fellow named Plaintiff Tyonna Holliday lived in Eastport Terrace. Census data suggest that these developments (except for one designated for seniors and people with disabilities) house a significant-majority African-American population. The Johnson suit is a putative class action suit defining the class as "all individuals now living or who are or previously were tenants in Housing Authority properties within the two years" after May 7, 2019, excluding the White Plaintiffs and a few other categories. The first named Plaintiff, Johnson, is an African American woman who lives in Harbour House with her children: Her home had never been inspected between her 2017 move-in and the 2021 filing of the lawsuit. The Johnsons deal with sewage leaks, wooden plywood floors in the bathroom after the tile cracked, rodent infestations, and mold growth; Johnson's daughter suffers from respiratory issues. The second named Plaintiff, Holliday, is an African American woman who lives in Eastport Terrace with her children. Her unit has never been inspected during her residence there, from 2016 until at least the filing of the lawsuit. The Holliday unit likewise sutlers with mold growth, which HACA dealt with by wiping it with a rag and painting over it. Holliday and one of her children suffer from asthma and breathing issues worsened by the mold. HACA officials also told Holliday that her apartment contains unsafe levels of lead. The suit brings the following counts against the City: Count I - Violation of Fair Housing Act; Count II - Violation of Civil Rights Act of 1866, 42 U.S.C. Section 1982; Count III - Violation of Civil Rights Act of 1871, 42 U.S.C. Section 1983, and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States; Count IV - Violation of the Civil Rights Act of 1871, 42 U.S.C. Section 1985 Section 3 and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States; Count V - Violation of the Civil Rights Act of 1871, 42 U.S.C. Section 1986, and the Equal Protection Clause of the Fourteenth Amendment; and Count VI - Violation of the Maryland State Constitution - Article 24 of the Maryland Declaration of Rights. III. Discussion The City makes three arguments in its motion to dismiss Johnson. First, the City argues that the Johnson class' claims are precluded as res judicata. Second, the City argues that the Johnson suit fails to include indispensable parties, including the White plaintiffs, plaintiffs' counsel, HACA, and the federal housing department. Finally, the City argues that these suits are impermissible collateral attacks on the White consent decree. In addition to these three main arguments, the City accuses the Plaintiffs' counsel of unethical conduct, accusations the Court declines to entertain because they are meritless. Judge Blake holds that all these arguments fail. A. Res Judicata Among other things, the City looks to the text of the consent decree, arguing that it covers "the Plaintiffs, past and present residents of public housing" and therefore that the Johnson Plaintiffs have no standing to bring their own claims but instead may only seek enforcement of the Consent Decree. Judge Blake finds that the Johnson Plaintiffs were not parties to the White suit, nor were they and the White plaintiffs in privity. The City has offered no convincing legal theory under which the White plaintiffs could have released the City from the claims of non-parties without safeguards like those offered by class actions. The Johnson claims are not precluded as res judicata. B. Indispensable parties The City next contends that under Rule 12(b)(7) of the Federal Rules of Civil Procedure, the Johnson Plaintiffs have failed to join as indispensable parties the White plaintiffs, White plaintiffs' counsel, HACA, and the federal housing department. Judge Blake holds that the White plaintiffs are not necessary to the action, and the City's arguments are wholly without merit. White plaintiffs' counsel, P. Joseph Donahue, is also the Plaintiffs' counsel in the Johnson suit. Mr. Donahue was not a party to the White lawsuit or consent decree, and he is not a necessary party in either of these lawsuits. Nor are HUD and HACA necessary parties. The White plaintiffs dropped HACA as a defendant with their amended complaint, but they were still able to litigate the suit to resolution. And HUD never was a party to the White suit. If the City wishes to join HACA and HUD as cross-defendants, the City remains free to file appropriate motions. But the Plaintiffs -- especially against the backdrop of the successful White consent decree -- could quite plausibly achieve complete relief in the form of monetary damages even in HACA's absence. The suits need not be dismissed as violating Rule 19. C. Impermissible collateral attack The City argues that the suit is an impermissible collateral attack on the White Consent Decree, which would need to be reassessed to provide relief (for example, monetary damages) to the Johnson Plaintiffs. Judge Blake finds this incorrect, and Johnson is not an attempt to appeal from or appeal the consent decree. The City does not point to any plausible language in the consent decree that binds nonparties from suing for damages. Further, the City argues that the Johnson Plaintiffs were obligated to intervene in White. Once again, the Johnson Plaintiffs were not privy to the While record and were under no obligation to intervene, even if that intervention would have been by right. White was not a class action; the White monetary payments went only to the White plaintiffs, and that settlement is not under attack in Johnson. Johnson need not be thrown out as impermissible collateral attacks. D. Statute of Limitations The City's reply raises the issue of statutes of limitations to argue that claims in Johnson cannot be based on the City's actions before the White Consent Decree. These claims will not be dismissed as untimely at this stage of litigation, Judge Blake finds. She holds that the City has raised no arguments challenging the effects of the original non-inspection policy or the Shadow Policy on the named Plaintiffs, instead arguing that the only violation possible was in 2017, when Johnson moved into Harbor House. The original non-inspection policy also continued until June 2019, less than two years before the May 2021 filing of the instant suit. E. Local Government Tort Claims Act Finally, the City's reply (ECF 12) argues that because the White Consent Decree's damages payouts exceeded the Local Government Tort Claims Act's (LGTCA's) damages cap, "there can be no further damages arising out of the City or HACA's tortious conduct related to the same operative facts as White under Maryland law." The Plaintiffs, meanwhile, argue that the LGTCA does not apply to federal civil rights claims, particularly because a state tort damages cap operates via sovereign immunity, which it cannot assert against federal claims. Judge Blake explains that local governments lack immunity from tort liability for violations of federal constitutional or statutory rights. The LGTCA cap will therefore apply only to the Johnson class's state law claim (count VI) but not to the federal claims (counts I-V). The interaction of the White Consent Decree and the LGTCA's damages cap need not be determined at this time. IV. Conclusion For the reasons she discussed, Judge Blake denied the City's motion to dismiss. A separate Order follows. A full-text copy of the Court's March 30, 2022 Memorandum is available at https://tinyurl.com/4rtt63uf from Leagle.com. APPLE INC: Granato Consumer Suit Removed to N.D. California ----------------------------------------------------------- The case styled JESSE GRANATO, STEPHANIE LANDRUM, SELESTIA ORDWAY, and JANICE ZARAD, on behalf of themselves and all others similarly situated v. APPLE INC., Case No. 22CV395280, was removed from the Superior Court for the State of California, County of Santa Clara, to the U.S. District Court for the Northern District of California on April 13, 2022. The Clerk of Court for the Northern District of California assigned Case No. 5:22-cv-02316 to the proceeding. The case arises from the Defendant's alleged violations of California's Unfair Competition Law, the Magnuson-Moss Warranty Act, and California's Consumers Legal Remedies Act by marketing and selling iPhones that purportedly required repairs that were not covered by Apple's One Year Limited Warranty. Apple Inc. is an American multinational technology company, headquartered in Cupertino, California. [BN] The Defendant is represented by: 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: melanie.blunschi@lw.com nicole.valco@lw.com APPLE INC: Sued for Not Paying Manual Workers on Weekly Basis ------------------------------------------------------------- Allison McDaniel, writing for 9to5Mac, reports that Apple is facing a class action lawsuit for not paying New York State employees weekly. A former Apple Store employee, Raven Ramos, who worked at the Fifth Avenue location, is suing on behalf of herself and current employees in New York. In the state of New York, law requires companies to pay manual workers on a weekly basis. This counts for employees that "engaged or have engaged in manual work in the course of their employment." However, a company can receive authorization from New York's Department of Labor Commissioner to pay its workers semi-monthly. According to the class action complaint, at least 25% of Ramos's job duties at the Apple Store involved manual labor. This includes "working the sales floor, unboxing products, emptied cash registers, and assisted customers." Apple's failure to pay timely wages also caused Ramos to lose "the time value of that money." The document states that Apple has no authorization to pay on a semi-monthly basis. The Cupertino-based company owns multiple stores in New York and employs upwards of thousands of employees in the state. Ramos, a resident of Port Chester, New York, worked for Apple from October 2010 to January 2018 and was paid semi-monthly the entire time. The class action lawsuit includes at least 100 employees and alleges that total claims of each member is "in excess of $5 million." The participants involved are looking to receive "the amount of their untimely paid wages as liquidated damages" from Apple. It's also seeking "reasonable attorneys' fees and costs, and pre-judgment and post-judgment interest." [GN] ART VAN FURNITURE: Stewart Files Appeal in Del. Dist. Ct. --------------------------------------------------------- Plaintiffs Todd Stewart, et al., filed an appeal from a court ruling in its bankruptcy case titled In re: Art Van Furniture, LLC, et al., Case No. 20-50548, in the United States Bankruptcy Court for the District of Delaware. As reported in the Class Action Reporter, the complaint is brought on behalf of former employees, who worked for the Defendants and who were terminated without cause as part of, or as the result of, mass layoffs or plant closings ordered by the Defendants beginning on March 4, 2020, and who were not provided 60 days advance written notice of their terminations by the Defendants, as required by the Worker Adjustment and Retraining Notification Act. The Plaintiffs were terminated along with approximately 700 other similarly situated employees as part of, or as the foreseeable result of a mass layoffs or plant shutdowns ordered by the Defendants. These terminations failed to give the Plaintiffs at least 60 days' advance notice of termination, as required by the WARN Act, says the complaint. As a consequence of the violation, the Plaintiffs seek their statutory remedies. A Chapter 7 Trustee's motion for summary judgment was filed asserting three defenses to the complaint: (i) notice was not required because the relevant Debtors were "liquidating fiduciaries" and not "employers" under the WARN Act; (ii) notice was not required because an "unforeseeable business circumstance" caused the mass layoffs; and (iii) notice was not required because a natural disaster caused the mass layoffs. On March 21, 2022, the Court concluded that both the unforeseeable business circumstance and natural disaster exceptions apply here and, therefore, the Debtors were not required to provide the 60-days WARN Act notice to employees before the March 20, 2020 layoff, thus the Court granted Trustee's summary judgment motion. The Plaintiffs seek a review of this ruling. The appellate case is captioned as In Re: Art Van Furniture, LLC, et al., Case No. 1:22-cv-00450-UNA, in the U.S. District Court for the District of Delaware (Wilmington), filed on April 5, 2022.[BN] Plaintiffs-Appellants Todd Stewart and Jennifer Sawle, on behalf of themselves and all others similarly situated, are represented by: Michael Joseph Joyce, Esq. LAW OFFICE OF JOYCE LLC 1225 King Street, Suite 800 Wilmington, DE 19801 Telephone: (302) 388-1944 E-mail: mjoyce@mjlawoffices.com ASHLEY FURNITURE: Aberl Sues Over Deceptive Discount Price Tag -------------------------------------------------------------- STEPHANIE ABERL, individually and on behalf of all others similarly situated, Plaintiff v. ASHLEY FURNITURE INDUSTRIES, LLC; and DOES 1- 50, inclusive, Defendants, Case No. 3:22-cv-00505-JLS-NLS (S.D. Cal., April 13, 2022) is an action by the Plaintiff and the Class who have purchased one or more products through ashleyfurniture.com that were deceptively represented as discounted from a false reference price. According to the complaint, the Defendant consistently advertises its products on its e-commerce website alongside an "original" price and the corresponding sale price. Defendant advertises a seemingly original price, in truth a false reference price, with a strikethrough. The false reference price operates as a baseline consumers rely on to assess a product's value. The discount percentage is often shown alongside the "original" price to communicate to consumers that Defendant is selling a product at a substantial discount, even though the product is not in fact discounted. The sale price displayed directly next to the false reference price conveys a "deep discount" at which Defendant presently offers a product, ostensibly for a limited time. The Plaintiff seeks to halt the dissemination of this false, misleading, and deceptive pricing scheme, to correct the false and misleading perception it has created in the minds of consumers, and to obtain redress for those who have purchased products tainted by this deceptive pricing scheme. ASHLEY FURNITURE INDUSTRIES, INC. provides home furnishing products. The Company designs and produces chairs, entertainment centers, recliners, sectionals, sofas, beds, dressers, mattresses, lamps, rugs, buffets, tables, and desks. [BN] The Plaintiff is represented by: Todd D. Carpenter, Esq. Scott G. Braden, Esq. LYNCH CARPENTER, LLP 1350 Columbia Street, Ste. 603 San Diego, CA 92101 Telephone: (619) 762-1910 Facsimile: (619) 756-6991 Email: todd@lcllp.com scott@lcllp.com ATOTECH LIMITED: Awaits Ruling on Bid to Nix PFOA/PFOS PI Suit -------------------------------------------------------------- Atotech Limited awaits a ruling on its motion to dismiss the lawsuit filed by five residents of the town of Blades, Delaware, seeking recovery for injuries sustained from the town's Perfluorooctanoic acid (PFOA), Perfluorooctanesulfonic acid (PFOS)-contaminated water, the company disclosed in its Form 20-F Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on April 8, 2022. On February 7, 2020, Atotech USA, LLC received service of process of a lawsuit filed by the plaintiffs who claim that products containing PFOA, PFOS, and potentially other perfluorinated chemicals had been used in chrome plating and non-stick cookware manufacturing processes by local operators who allegedly discharged these substances into the environment, contaminating the water supply of the town of Blades. The plaintiffs seek recovery for alleged injuries and seek to certify a class composed of approximately 1,600 residents of Blades. Other defendants include E.I. du Pont de Nemours and Company, the 3M Company, MacDermid, Inc., Procino Plating, Inc., and Blades Development LLC. On March 23, 2020, Atotech filed a motion to dismiss the complaint in its entirety. On February 3, 2021, the court requested that the parties brief the question of whether the court has subject matter jurisdiction over the action under the Class Action Fairness Act of 2005. On December 2, 2021, the court decided that it has subject matter jurisdiction over the action under the Class Action Fairness Act of 2005. On December 23, 2021, Atotech refiled its motion to dismiss the complaint in its entirety. All parties have fully briefed the issues and now await a ruling from the court. Atotech Limited, a chemicals technology company, provides specialty electroplating and surface finishing solutions worldwide. The company operates through two segments, Electronics (EL) and General Metal Finishing (GMF). Its products and technologies serve the primary surface finishing end-markets comprising the automotive, consumer electronics, construction, sanitary, white goods, and oil and gas industries. The company also offers on-site support and training services. Atotech Limited was founded in 1851 and is headquartered in Berlin, Germany. ATRIUM AT WAYNE: Estate of Evelyn Wells Blame Facility for Death ---------------------------------------------------------------- ESTATE OF EVELYN WELLS and DIANE L. BRUNDA, as Administratrix Ad Prosequendum, Plaintiffs v. THE ATRIUM AT WAYNE SUBACUTE AND REHABILITATION, ATRIUM AT WAYNE, LLC, BKZ CORP., JOHN AND JANE DOES 1-10 (DOCTORS, NURSES, PHYSICIAN'S ASSISTANTS, NURSE PRACTITIONERS, ETC.); and ABC AND XYZ CORPORATIONS 1-10, Defendants, Case No. PAS-L-000892-22 (N.J. Super., Passaic Cty., April 6, 2022) is brought by the Plaintiffs, who are representing all "others similarly situated" such as those residents and/or patients that died as a result of the Defendants' failures in protecting them from the Covid-19 virus during and throughout the outbreak and pandemic, and their heirs, survivors and next of kin. According to the complaint, the Defendants failed to take the proper steps to protect the residents and/or patients at their facility from the Covid-19 virus, despite being made aware of the said virus spreading world-wide and nationally, that caused severe medical distress and death in individuals who caught the disease, especially the elderly. As a consequence of Defendants' alleged failures in this regard, Evelyn Wells, a resident/patient, died on April 7, 2020, with her cause of death confirmed from a Covid-19 infection. In the wake of the outbreak and the failures, other patients were infected and died at Defendants' facility from Covid-19 infections, and there may be more deaths, says the complaint. As a direct and foreseeable consequence of the Defendants' failures in taking safety precautions during the Covid-19 outbreak (pandemic), members of the Class sustained loss, damages, injury and death, and their survivors and/or heirs have also sustained loss and damages as a direct consequence of the same, adds the complaint. The Estate of Evelyn Wells brings this action in its own right and on behalf of all "others similarly situated," whether deceased or next of kin and/or heirs of the deceased. The Atrium at Wayne Subacute and Rehabilitation is located in Wayne, New Jersey and is owned by Defendants Atrium at Wayne, LLC, and BKZ Corp.[BN] The Plaintiffs are represented by: Daniel G.P. Marchese, Esq. THE MARCHESE LAW FIRM, LLC 93 Spring Street, Suite 300 Newton, NJ 07860 Telephone: (973) 383-3898 Facsimile: (973) 383-7349 E-mail: dan@marchesefirm.com BEYOND MEAT: Settles Consolidated Shareholder Lawsuits ------------------------------------------------------ Megan Poinski, writing for FoodDive, reports that Beyond Meat agreed to pay $515,000 in attorneys' fees and make changes to its corporate governance to settle consolidated lawsuits filed by shareholders about an ongoing court battle the company is fighting with former co-manufacturer Don Lee Farms. The underlying dispute between Beyond Meat and Don Lee Farms is still pending in California Superior Court. As part of the settlement, Beyond Meat will add a Risk Committee to its board that will examine all legal, ethical, operational and strategic risks before the company. Two-thirds of Beyond Meat's board will now be made up of people who are independent of the company. Information on the company's corporate whistleblower program and corporate governance will be posted on its website as well. This sprawling legal battle kicked off in 2017, when Don Lee Farms accused Beyond Meat of stealing its trade secrets, providing unusable and unsafe raw materials for manufacturing, failing to compensate Don Lee for products it had made, and not ensuring it had operational equipment and personnel to make its products. Beyond Meat filed a counter suit against Don Lee in 2020. A trial is set for next month. Dive Insight: A side chapter of Beyond Meat's battle with Don Lee Farms appears like it is about to end with a relatively small financial impact on the company. In documents posted to its investor relations website after business hours on April 8, Beyond Meat stressed this is not a class-action style settlement, so individual shareholders will not be able to get money from it. (Named plaintiffs, however, may apply for $2,000 awards.) Paying for plaintiffs' attorneys' fees and making some board changes is a relatively easy way to end this litigation. All parties agreed to the settlement -- which ends the litigation and is not an admission of wrongdoing -- in January. The court gave it preliminary approval last month, and a hearing for final approval is scheduled for July. Adding risk management committees to corporate boards has become a popular strategy to help companies realize and mitigate the challenges before them. In light of the tumultuous business climate of the past two years, punctuated by the COVID-19 pandemic, the need for specialized risk committees has become apparent, business strategy consultants have said. Although a Beyond Meat risk committee likely would not have prevented this lawsuit from taking place -- it was filed two years before the company went public in 2019 and involved a contract dispute from its early years as a business -- having it in place could prove invaluable. Plant-based food is an inherently risky space. While it's getting to be more accepted in the mainstream with wide availability and a variety of brands at grocery stores and foodservice, its former meteoric growth is slowing. Companies, including Beyond Meat, are facing the new challenge of expanding market share and converting new consumers. For Beyond Meat's part, Founder and CEO Ethan Brown has said that slowing sales are the result of several supply chain and pandemic consumer behavior factors, but it could be comforting to investors to have a more independent panel of board members also weigh in on the company's strategy. It's unclear if the requirement of independent board members would make much of a change in the current operating structure of Beyond Meat. Currently, Brown -- who is also the board chairman -- is the only member who has a direct role in the company's operations. However, the requirement can ensure investors that the company will be governed more independently in the future. But this settlement is just a small step. There still may be a lot of bitter -- and potentially expensive -- fighting to come between Beyond Meat and Don Lee Farms. A hearing was scheduled on a motion dealing with the claim that Beyond Meat stole Don Lee's trade secrets, and the trial is set to begin next month. In its annual report filed in March, Beyond Meat said it would "vigorously defend" the company and its current and former employees implicated in the dispute. However, in the case that Beyond Meat is not victorious, the company could be required to pay steep damages. Beyond Meat couldn't estimate how much that might be in its annual report, but it could be significant -- making right now a very good time to settle the investor litigation. [GN] BGR INC: Henley Seeks Overtime Wages Under FLSA, OMFWSA, OPPA ------------------------------------------------------------- DONNIE HENLEY, on behalf of himself and others similarly situated v. B.G.R., INC., Case No. 1:22-cv-00198-TSB (S.D. Ohio, April 11, 2022) is a collective and class action complaint against B.G.R., Inc. for its failure to pay employees overtime wages and seeking all available relief under the Fair Labor Standards Act of 1938, the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act. The Plaintiff and other similarly situated employees worked 40 or more hours in one (1) or more workweek(s) during the three years immediately preceding the filing of this Complaint. According to the complaint, the Defendant maintains a policy and/or practice of requiring Named Plaintiff and other similarly situated employees to clock in and out of work for a daily, 30-minute meal break; however, Named Plaintiff and other similarly situated employees did not receive a bona fide meal period for several reasons. The Defendant is a packaging supply distributor serving a wide variety of industries with their packaging supply chain.[BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. Kelsie N. Hendren, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Rd., Suite No. 126 Columbus, OH 43220 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com agedling@mcoffmanlegal.com khendren@mcoffmanlegal.com BHP GROUP: Court Allows Foreign Residents to Register in Suit ------------------------------------------------------------- This is a shareholder class action in relation to BHP Group Ltd's (BHP Ltd) alleged failure to inform the market of the risk that a dam at its Germano mine joint venture in Brazil might collapse. The catastrophic collapse of the dam in November 2015 resulted in substantial property damage, several fatalities, the closure of the mining operation, and a significant fall in BHP Ltd's share price. This decision concerned an application for leave to appeal by BHP Ltd from the decision of Moshinsky J in Impiombato v BHP Group Ltd (No 2) [2020] FCA 1720, in which his Honour refused BHP Ltd's application for: -- a declaration that Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCAA) does not permit the bringing of claims on behalf of persons who are not residents of Australia (non-residents) (Issue 1); -- alternatively, a discretionary order excluding non-residents from the class definition (Issue 2); and an order striking out the claims of class members who acquired shares in BHP Group plc (BHP Plc) on the London and Johannesburg stock exchanges (Issue 3). Claims are brought on behalf of such class members because, at all material times, BHP Ltd and BHP Plc had a dual listed company structure and operated as a single entity. Any contraventions by BHP Ltd of its continuous disclosure obligations are alleged to have had an equivalent effect on the share price of BHP Plc, and thus caused shareholders of BHP Plc equivalent losses. BHP Plc, however, is not a party to the proceeding and is not alleged to have contravened any relevant obligations. The Full Court dismissed BHP Ltd's appeal on all three issues. While the Court granted leave to appeal in relation to Issue 1, it rejected BHP Ltd's arguments for several reasons, including the following: The Court rejected BHP Ltd's submission that Pt IVA confers jurisdiction on the Court over the claims of persons who are non-parties (i.e. class members). Rather, it said that Pt IVA "establishes powers and procedures by which the Court can exercise jurisdiction over matters otherwise conferred upon it provided the "gateway" provisions are surmounted" (at [32]). The Court also observed that Pt IVA allows for the grouping of claims that exist separately from the proceeding. As such, Pt IVA is about the exercise (and not the conferral) of jurisdiction. The Court also rejected BHP Ltd's related submission that upon a proper construction of Pt IVA, there is nothing which rebuts the common law presumption that the legislature of a country does not normally intend to deal with persons or matters over which jurisdiction properly belongs to some other sovereign or state. Because Pt IVA concerns the exercise (and not the conferral) of jurisdiction, the Court held that the presumption did not assist BHP Ltd. It observed that "[t]he manner of exercise of a jurisdiction conferred on an Australian court is not, obviously enough, a matter where it might be thought jurisdiction properly belongs to a foreign sovereign or state" (at [43]). The Court said that there was nothing in the text or context of Pt IVA which evinced an intention to exclude non-residents from being class members. To the contrary, the Court found that when Parliament enacted Pt IVA it had made a legislative choice not to exclude non-residents. Furthermore, while BHP Ltd contended that a non-resident cannot be a class member under Pt IVA, it accepted that a non-resident with a claim under federal jurisdiction may nonetheless advance their claim by: (i) being named as a party in a Pt IVA representative proceeding, (ii) commencing an ordinary inter partes proceeding in their own name, (iii) being a represented party in a Chancery rule representative proceeding under r 9.21 of the Federal Court Rules 2011 (Cth), or (iv) being a class member in a class action commenced in the Supreme Court of Victoria (with that Court exercising federal jurisdiction). The Court observed that "[t]o say that this would be a surprising outcome is somewhat of an understatement" (at [50]). The Court found that BHP Ltd's focus on the role of non-residents as class members for the purpose of the jurisdictional question was misplaced, and inverted the usual inquiry, which is to the Court's ability to exercise power over the defendant. After reviewing relevant authority, including in particular the High Court's decision in Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27, the Court concluded that "[o]n the state of the law in this country, where jurisdiction is attracted by service on the respondent within the territorial jurisdiction of the court, it is not necessary to show any other connexion with the jurisdiction" (at [63]). In relation to Issue 2, the Court refused leave to appeal. Although the Court acknowledged that the presence of non-resident class members gave rise to some risk of re-agitation of the same issues in subsequent foreign proceedings, it identified that there are other, less drastic, options available to deal with this potential prejudice than the exclusion of non-residents from the class definition. For example, the Court indicated that a class closure order may be made at a future stage of the proceeding. In relation to the power to make such an order, the Court acknowledged that recent decisions of the New South Wales Court of Appeal stand for the proposition that class closure orders that give rise to a contingent extinguishment of class members' rights of action are beyond power (Haselhurst v Toyota Motor Corporation Australia Ltd (2020) 101 NSWLR 890; [2020] NSWCA 66 and Wigmans v AMP Ltd (2020) 102 NSWLR 199; [2020] NSWCA 104). However, the Court also drew attention to Beach J's recent decision in Wetdal Pty Ltd as Trustee for the BlueCo Two Superannuation Fund v Estia Health Ltd [2021] FCA 475, in which his Honour queried the correctness of those decisions, and said (at [95]): Although there is, with respect, much to be said for Beach J's observations in Wetdal (at [81]-[95]) as to Wigmans and Haselhurst, in our view, on any view of the law, an order could be fashioned if and when it did become necessary or appropriate to ensure that justice was done to ensure that BHP was not vexed with the prospect of non-resident group members, who do not take a step to prosecute their claim in this class action, having the ability to commence another proceeding in another jurisdiction. Finally, the Court also refused leave to appeal in relation to Issue 3. It held that there was no arguable error in the primary judge's finding that the question of whether s 674 (read together with ss 1317HA or 1325) of the Corporations Act 2001 (Cth) accommodates the claims of BHP Plc shareholders should be determined at trial. [GN] BLACKBERRY LTD: Settles Securities Class-Action Lawsuit for $165M ----------------------------------------------------------------- BlackBerry Limited BB recently reached a settlement regarding a securities class action lawsuit filed against the company and some former officers in the U.S. District Court for the Southern District of New York. Pearlstein v. Blackberry Limited, et al., Case No. 13 Civ. 7060 (CM) (KHP) was settled following a mediation process involving a total cash payment of $165 million by BlackBerry to settle the plaintiffs' claims who purchased or otherwise bought BlackBerry shares between Mar 28, 2013, and Sep 20, 2013 on the Nasdaq. The court has allowed the parties' appeal to suspend any further proceedings, pending approval of the final settlement. BlackBerry added that the allegations were without merit, but the company is in favor of settling the long-drawn litigation as it is in the company's best interests. Per a Reuters report, the lawsuit alleged that BlackBerry tricked shareholders by over-hyping BlackBerry 10's success and profitability. The lawsuit was filed in October 2013. BlackBerry also added that the settlement amount of $165 million would be absorbed into its results of operations for the fiscal quarter ending May 31, 2022. The company does not anticipate recovering any portion of this settlement amount from insurance. Headquartered in Waterloo, Canada, BlackBerry provides intelligent security software and services to enterprises and governments worldwide. It offers devices and software platforms for managing security, mobility and communications among hardware, programs, mobile apps and the Internet of Things. BlackBerry Limited Price and Consensus At present, BlackBerry carries a Zacks Rank #3 (Hold). Shares of BB have lost 25.8% against the industry's gain of 7.6% in the past year. Key Picks Some better-ranked stocks from the broader technology sector are Broadcom AVGO, Apple AAPL and Arrow Electronics ARW. All stocks carry a Zacks Rank of 2 (Buy) at present. You can see the complete list of today's Zacks #1 (Strong Buy) Rank stocks here. The Zacks Consensus Estimate for Broadcom's fiscal 2022 earnings is pegged at $35.49 per share, up 7.4% in the past 60 days. AVGO's long-term earnings growth rate is pegged at 14.5%. Broadcom's earnings beat the Zacks Consensus Estimate in all the preceding four quarters, with the average being 1.9%. Shares of AVGO have increased 24.3% in the past year. The Zacks Consensus Estimate for Apple's fiscal 2022 earnings is pegged at $6.16 per share, up 0.2% in the past 60 days. The long-term earnings growth rate is pegged at 12.5%. Apple's earnings beat the Zacks Consensus Estimate in each of the last four quarters, with the average being 20.3%. Shares of AAPL have rallied 29.4% in the past year. The Zacks Consensus Estimate for Arrow Electronics 2022 earnings is pegged at $18.48 per share, up 4.5% in the past 60 days. The long-term earnings growth rate is 3.1%. Arrow Electronics' earnings beat the Zacks Consensus Estimate in each of the last four quarters, with the average being 19.1%. Shares of ARW have lost 3.6% in the past year. Infrastructure Stock Boom to Sweep America A massive push to rebuild the crumbling U.S. infrastructure will soon be underway. It's bipartisan, urgent, and inevitable. Trillions will be spent. Fortunes will be made. The only question is "Will you get into the right stocks early when their growth potential is greatest?" Zacks has released a Special Report to help you do just that, and it's free. Discover 5 special companies that look to gain the most from construction and repair to roads, bridges, and buildings, plus cargo hauling and energy transformation on an almost unimaginable scale. [GN] BOOT BARN: Suit Claims Website Not Equally Accessible For Blind --------------------------------------------------------------- Abraham Jewett at topclassactions.com reports that Boot Barn fails to make its website fully accessible to individuals who are blind or visually impaired, a new class action lawsuit alleges. Plaintiff Christopher Loadholt claims Boot Barns violates the Americans with Disabilities Act by not making its website fully compatible with screen-reading software used by blind and visually impaired individuals. Loadholt, a blind man, says he was unable to make a purchase on Boot Barn's website due to it not being compatible with his screen-reading software, NonVisual Desktop Access. He argues Boot Barn's website has "multiple barriers" in place to prevent blind and visually impaired individuals like himself from "enjoying access to the website's content equally to that of a sighted user." Loadholt claims Boot Barn's website fails to, among other things, label titles correctly, describe graphical image contents and distinguish separate pages from each other. Boot Barn Website Contains Broken Links, Other Access Barriers Boot Barn's website also contains broken links and unhelpful headings and has an inadequate keyboard user interface, the class action lawsuit alleges. "These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant's website the same way sighted individuals do," the class action lawsuit states. Loadholt claims Boot Barn also does not have adequate policies in place to ensure that its website is equally accessible, and that its "failure and refusal to remove access barriers to its website" denies equal access to this day. "The access barriers Plaintiff encountered have caused a denial of Plaintiff's full and equal access in the past and have caused the Plaintiff real harm," the class action lawsuit states. Further, Loadholt argues that, had Boot Barn followed "simple" Web Content Accessibility Guidelines, he could have navigated the website and completed a transaction just as a sighted individual could. Loadholt wants to represent a nationwide class and New York subclass of legally blind individuals who were denied full and equal access to Boot Barn's website. In addition to violating the ADA, Loadholt claims Boot Barn is in violation of the New York City Human Rights Law. He is demanding a jury trial and requesting injunctive and declaratory relief along with compensatory, statutory and punitive damages for himself and all class members. A similar class action lawsuit was filed this month against Synchrony Financial by a legally blind woman accusing it of not having a website that is accessible to blind individuals. Have you been denied equal access to Boot Barn's website? Let us know in the comments! The plaintiff is represented by Yitzchak Zelman of Marcus & Zelman, LLC. The Boot Barn Website Access Class Action Lawsuit is Loadholt v. Boot Barn, Inc., Case No. 1:22-cv-02876, in the U.S. District Court for the Southern District of New York. [GN] BROWN UNIVERSITY: Walsh Files Certiorari Petition in Supreme Court ------------------------------------------------------------------ Plaintiffs ABIGAIL WALSH, et al., filed with the Supreme Court of United States a petition for a writ of certiorari in the matter styled ABIGAIL WALSH; LAUREN LAZARO; ROSE DOMONOSKE; MEI LI COSTA; ELLA POLEY; ALYSSA GARDNER; LAUREN MCKEOWN; ALLISON LOWE; TINA PAOLILLO; EVA DURANDEAU; MADELINE STOCKFISH; SONJA BJORNSON, Petitioners v. AMY COHEN ET AL., individually and on behalf of all others similarly situated, Respondents, Case No. 21-1303. Response is due on April 28, 2022. The Plaintiffs seek a review of the judgment of the United States Court of Appeals for the First Circuit in the case titled AMY COHEN ET AL., individually and on behalf of all others similarly situated, Plaintiffs, Appellees v. BROWN UNIVERSITY ET AL., Defendants, Appellees, ABIGAIL WALSH; LAUREN LAZARO; ROSE DOMONOSKE; MEI LI COSTA; ELLA POLEY; ALYSSA GARDNER; LAUREN MCKEOWN; ALLISON LOWE; TINA PAOLILLO; EVA DURANDEAU; MADELINE STOCKFISH; SONJA BJORNSON, Objectors, Appellants, Case No. 21-1032. This petition arises within the landmark class action case regarding gender equity in collegiate athletics under Title IX of the Education Amendments Act of 1972, and its implementing regulations. Originally instituted in 1992, this action was brought by female then-members of university-funded varsity sports at Brown University to challenge gender inequities and disparities in funding and opportunities for participation in Brown’s varsity sports. After years of litigation, including multiple appeals, a settlement agreement was reached in 1998. The class representatives were then current student athletes who had a concrete, actual stake in the action. The class representatives had interests that were coincident with the absent class members. A so-called "Joint Agreement" that secured critical rights for the class, was formally approved, adopted by the Court, and docketed, granting preliminary approval as a class action settlement on June 23, 1998, and the compliance plan was entered as a final class action judgement ("1998 Brown Class Action Settlement") on October 16, 1998. The instant litigation was "closed" by the District Court on October 16, 1998. A so-called "Amended Settlement" substantively changing and reducing the rights and protections afforded female Brown students was entered into between Brown and attorneys for the plaintiff class, but the class representatives remained same, and no current female students were added as representatives, nor was any person who suffered current injury by the Amended Settlement agreement. According to the complaint, the designated Class Representatives graduated about the time the case was closed by the District Court in 1998 and so the designated class representatives for the so-called 2020 "Amended Settlement" (a) had no actual, concrete stake in the action because they would not suffer harm or gain a benefit from the abandonment of the benefits provided by the terms of the 1998 Brown Class Action Settlement; (b) no longer shared a commonality of interests with the current absent class of female athletes, which included active members of Brown's varsity teams and women entering Brown who were subjected to Brown's adverse changes or the entire removal of the athletic programs upon which they based their decision to attend Brown; (c) had no interests in the class action 2020 Amended Settlement that were coincident with the 2020 absent class members; and (d) were not current student athletes impacted by the abandonment of material terms. During the intervening years, Brown violated the terms of the agreement multiple times, says the complaint. In May 2020, Brown announced that it was eliminating multiple varsity sports, consisting of both female and male teams, and publicly blamed the Joint Agreement for the need to eliminate, specifically, three male sports with high minority athlete participation. Three days later, Brown reinstated those three men's teams after public outcry. The adequacy requirements of class representatives and the standards by which the review of the adequacy of the class representatives that must be carried out by Court are at the core of this petition. Without the adequate class representees mandated by FRCP Rule 23 and the Constitution, the absent class members were denied due process. Moreover, both the District Court and the Appellate Court shifted the burden of proof from the Appellees who acted to unearth and replace a nearly 25-year-old finally-approved class action settlement to absent class members who were not given notice that the terms of a settlement, of which they were beneficiaries, was being revoked. The new settlement proposed to and approved by the court is a new and substantively very different settlement from that approved nearly 25 years ago. And, the specific injuries suffered by the group of former class members is different than the injuries suffered by the current class members -- who were entitled to rely upon the existing Joint Agreement and all of its benefits and rights. Adequate representation of absent class members by named representatives with alighted interests and claims is an inviolate cornerstone of due process. Multiple current female Brown varsity athletes (the Appellant Objectors) negatively impacted by the changes objected on various grounds, challenging as inadequate the former class members' qualifications as class representatives, and the Class Settlement as unfair and unreasonable, all in violation of Federal Rules of Civil Procedure 23. Nevertheless, the District Court and U.S. Court of Appeals for the First Circuit gave its final approval to the Class Settlement over those objections. Given that thousands of class action lawsuits are filed every year, and a large amount of those cases rely on class representatives that adequately serve the rest of the class, the impact of the First Circuit's interpretation of what kind of class representative qualifies as adequately serving the class is obvious. By allowing thirty-year-old class representatives with no current, active interest to be considered adequate, the First Circuit clearly violated the rights of class members in this case by denying them due process. Given the breadth and importance of class action lawsuits and constitutional rights, the Supreme Court's immediate intervention is necessary to correct the First Circuit's approach before it undermines proper participation by class members on multiple lawsuits, asserts the complaint.[BN] Plaintiffs-Petitioners Abigail Walsh, et al., are represented by: Robert I. Bonsignore, Esq. BONSIGNORE TRIAL LAWYERS, PLLC 23 Forest St. Medford, MA 02155 Telephone: (781) 150-0000 Facsimile: (702) 983-8673 E-mail: rbonsignore@classactions.us Defendants-Respondents Brown University, Christina Paxson, as successor to Vartan Gregorian, and Jack Hayes, as successor to David Roach, are represented by: Roberta A. Kaplan, Esq. KAPLAN HECKER & FINK LLP 350 Fifth Avenue, 63rd Floor New York, NY 10118 E-mail: rkaplan@kaplanhecker.com BUCK KNIVES: Settlement Approval Hearing Scheduled for August 8 --------------------------------------------------------------- Top Class Actions reports that Buck Knives agreed to pay $200,000 to resolve claims that its products were falsely marketed as "Made in USA." The settlement benefits consumers who purchased one or more Buck Knives knife-sheath combinations between March 1, 2008, and Feb. 17, 2022. The following knife-sheath combination model numbers are: 0102BKS 0103BKS 0105BKS 0110BKSLT 0110BKSLT1WM 0110BKSNS1 0110BRS 0110BRSFG 0110BRSWM2 0112BKS5 0112BRS 0112BRSFG 0113BRS 0119BKS 0119BKSWM1 0120BKS 0191BRG 0192BRS 0500RWS 0501RWS 0616BKS 0656GRS 0657GRG 0658GRS 0659GRS 0660GRG 0661GRS 0684BKS 0685BKG 0685BKS 0691BKG 0692BKS 0808BKX 0808BRX2 0891BKS 0891BRS1 0893BKS 0893BRS1 Buck Knives offers numerous types of knives, including hunting knives, pocket knives, fishing knives, cutlery, and even custom knives. According to the company, its knives are the best due to the company's use of quality materials, thoughtful designs, and refined processes. Although the company's knives may be high quality, legal action against Buck Knives says the company falsely advertised its products in order to charge a higher price. According to the Buck Knives class action lawsuit, the company marketed its knife-sheath as "Made in USA." Although the knives were manufactured in America, the sheaths were allegedly imported. As a result, consumers contend Buck Knives couldn't legally market the combination products as "Made in USA." Plaintiffs in the case say they were misled by this marketing and paid a higher price for the knife-sheath combinations than they would have if they knew the truth about the products' origins. Buck Knives hasn't admitted any wrongdoing but agreed to resolve the plaintiffs' allegations with a $200,000 settlement. Under the terms of the deal, Class Members can collect a cash payment for every knife purchased. The settlement allows up to $10 per eligible knife purchased. Individuals can claim up to three knives for a maximum payment of $30, while households can collect up to $60 for six eligible knives. The deadline for exclusion and objection is June 1, 2022. The final approval hearing for the settlement is scheduled for Aug. 8, 2022. In order to receive a payment from the settlement, Class Members must submit a valid claim form by June 1, 2022. Who's Eligible The settlement benefits consumers who purchased one or more Buck Knives knife-sheath combinations between March 1, 2008, and Feb. 17, 2022. Models are listed in above article. Potential Award Up to $60 Proof of Purchase You are required to submit: (a) proof of purchase; OR (b) a photograph of each knife-sheath combination claimed that exhibits the stamp on the right side of the blade of the knife and depicts any form of photo identification of the claimant. NOTE: If you do not qualify for this settlement do NOT file a claim. Remember: you are submitting your claim under penalty of perjury. You are also harming other eligible Class Members by submitting a fraudulent claim. If you're unsure if you qualify, please read the FAQ section of the Settlement Administrator's website to ensure you meet all standards (Top Class Actions is not a Settlement Administrator). If you don't qualify for this settlement, check out our database of other open class action settlements you may be eligible for. Claim Form Deadline 06/01/2022 Case Name Houriani v Buck Knives Inc, Case No. 2:21-cv-01908-DSF, in the U.S. District Court for the Central District of California Final Hearing 08/08/2022 Settlement Website BuckKnivesClassAction.com Claims Administrator Buck Knives Settlement Administrator P.O. Box 26170 Santa Ana, CA 92799 888-251-1607 Class Counsel David R Greifinger Calvin A Marshall John A Marshall LAW OFFICES OF DAVID R GREIFINGER Defense Counsel Stephen J Tully Esq Trang T Tran Esq Nicholas D Lauber Esq GARRETT & TULLY PC [GN] BUMBLE BEE: Certification of 3 Classes of Tuna Purchasers Upheld ---------------------------------------------------------------- Alison Frankel, writing for Reuters, reports that the 9th U.S. Circuit Court of Appeals cannot agree on whether it has created a circuit split on a critical class action issue. The court's new en banc decision, as my Reuters colleague Mike Scarcella reported on April 8, upheld the certification of three classes of packaged tuna purchasers who have accused tuna suppliers of engaging in a price-fixing cartel. The 9th Circuit majority in Olean Wholesale Grocery Cooperative Inc v. Bumble Bee Foods LLC refused to establish a categorical rule that classes cannot be certified if they contain more than a handful of plaintiffs who have not actually been injured. Defendants StarKist Co and Dongwon Industries Co Ltd had urged the en banc 9th Circuit to block certification of a class of buyers who purchased tuna directly from suppliers because a defense expert concluded that nearly 30% of the class could not demonstrate an antitrust injury. StarKist counsel from Latham & Watkins argued that individual issues will inevitably predominate when so many class members may not actually have overpaid. StarKist highlighted rulings from the 1st Circuit, in 2018's In re: Asacol Antitrust Litigation, and the D.C. Circuit, in 2019's In re: Rail Freight Fuel Surcharge Antitrust Litigation, in which appellate courts have held that classes cannot be certified if they contain more than a minimal number of uninjured class members. The 9th Circuit was unswayed. The Federal Rules of Civil Procedure, wrote Judge Sandra Ikuta in a majority opinion joined by eight other judges on the en banc panel, contain no explicit prohibition on certifying a class that contains uninjured class members. Rule 23's predominance provision, she said, "requires only that the district court determine after rigorous analysis whether the common question predominates over any individual questions." Was that holding a split from other circuit precedent? Judge Kenneth Lee said it was, in a dissent joined by Judge Andrew Kleinfeld. The majority, Lee wrote, had "needlessly" parted ways with the 1st and D.C. Circuits, both of which "have endorsed a de minimis rule." The dissenting judges insisted that by requiring plaintiffs only to offer credible evidence of classwide injury, the majority was more or less inviting the class action bar "to concoct oversized classes stuffed with uninjured class members -- with little fear of having their class certification bids being denied for lack of 'predominance' or 'commonality.'" Ikuta pushed back on Lee's assertion in a tart footnote in the majority opinion. The court's call for case-by-case analysis of plaintiffs' evidence of a classwide injury, she said, "is consistent with the approach taken by our sister circuits." Neither the 1st Circuit in Asacol nor the D.C. Circuit in Rail Freight adopted a per se rule specifying an acceptable percentage of uninjured class members, Ikuta wrote. Those courts, she said, simply held that classes cannot be certified if the need to identify uninjured class members would predominate over classwide issues - which, Ikuta said, is the same analysis the 9th Circuit majority called for in the tuna cases. This might seem like mere semantics. As Ikuta said, all three circuits agree that trial judges must engage in rigorous analysis of plaintiffs' evidence of classwide injury and that courts must reject certification of classes in which questions about individual injury would predominate. So why does it matter if the 1st and D.C. Circuits have said the number of uninjured class members must be minimal and the 9th Circuit focused instead on the process of predominance analysis? Because there's a good chance that StarKist will ask the U.S. Supreme Court to review the 9th Circuit's ruling -- and one of the best ways to persuade the justices to take a case is to call on the court to resolve a circuit split. Defense counsel Gregory Garre of Latham said in a statement on April 8 that the company is considering a Supreme Court petition. In a follow-up email statement to me on April 11, Garre was more declarative: "The undeniable importance of the issue coupled with the acknowledged circuit conflict makes this case a compelling candidate for Supreme Court review." Tuna plaintiffs lawyers Christopher Lebsock of Hausfeld, Thomas Burt of Wolf Haldenstein Adler Freeman & Herz and Jonathan Cuneo of Cuneo Gilbert & LaDuca didn't respond to my email about the en banc court's purported split with the 1st and D.C. Circuits. If StarKist does file a petition for certiorari, I'm expecting the company to argue that the 9th Circuit has removed a fundamental class certification gateway that plaintiffs in the 1st and D.C. Circuits can't pass through. In those circuits, StarKist will likely assert, trial courts must decide before certifying classes whether more than a handful of class members are uninjured, but in the 9th Circuit, trial judges can leave it to juries to decide if expert evidence of classwide injury holds up or to individualized post-trial damages proceedings to weed out uninjured class members. I should point out that the tuna plaintiffs and their amici argued for precisely that outcome. In their view, trial judges weighing class certification are supposed to determine only if the case can be decided on common evidence, not whether plaintiffs will ultimately prevail. I also want to point out one other note from the 9th Circuit's tuna ruling. I've told you that StarKist and some of its amici pushed the en banc 9th Circuit to address whether classes can be certified if every class member does not meet Article III standing requirements. The majority in the April 8 ruling said it need not address that freighted question because the plaintiffs' evidence of classwide antitrust impact was sufficient to establish standing for every class member. But that wasn't all: The en banc court also formally overruled a precedential statement that has long given hope to class action critics. The 9th Circuit said back in 2012's Mazza v. American Honda that "no class may be certified that contains members lacking Article III standing." That statement is no longer good law after the April 8 ruling in the tuna case. That's more good news for class action lawyers. For now. [GN] BUMBLE BEE: Must Face Tuna Purchasers' Antitrust Class Action ------------------------------------------------------------- Christina Tabacco, writing for Law Street, reports that nine months after the appellate court vacated an initial decision by a panel of its judges, an en banc majority voted 9-2 to confirm the district court's class certification ruling in the antitrust case against three of the nation's largest tuna packagers. The decision is the latest in the price-fixing conspiracy suit that dovetailed on federal investigations, a criminal conviction, and numerous plea deals on part of defendants Bumble Bee, StarKist, and Chicken of the Sea and their executives. The court summarized facts material to the case, including that the tuna packager defendants produced over 80% of all canned tuna sold domestically. The plaintiffs, grouped into a direct purchaser class, an indirect purchaser class, and an end purchaser class, alleged that the trio conspired from November 2010 through at least the end of 2016 to fix prices of tuna, causing them to overpay for the fish product. The purchasers eventually moved to certify the three subclasses. In July 2019, Judge Janis Sammartino granted that request. The defendants appealed, and in April 2021, the Ninth Circuit vacated the district court's order and remanded. Several months later, the appellate court reversed course and decided to rehear the case. In the 79-page opinion, the court chiefly considered "whether the purchasers' statistical regression model, along with other expert evidence, is capable of showing that a price-fixing conspiracy caused class-wide antitrust impact, thus satisfying one of the prerequisites for bringing a class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure." The majority held in the affirmative. In so finding, the court overrode arguments that Rule 23(b)'s commonality requirement was defeated because the class "potentially includes more than a de minimis number of uninjured class members." Instead, the court was satisfied that a common question was capable of class-wide resolution, declining the more stringent requirement that common evidence "in fact establishes that plaintiffs would win at trial." In dissent, Judge Kenneth K. Lee, joined by Judge Andrew J. Kleinfeld, argued that the majority was wrong to certify a class in view of the possibility that about one of every three class members suffered no injury. He said that "[p]unting this key question until later amounts to handing victory to plaintiffs because this case will likely settle without the court ever deciding that issue," and further called the practice "neither fair nor true to the rule." The plaintiff classes are represented by Hausfeld, Cuneo Gilbert & Laduca LLP, and Wolf Haldenstein Adler Freeman & Herz LLP. Starkist is represented by Latham & Watkins. [GN] BURGER KING: Whopper's Packaging Contains PFAS, Hussain Alleges --------------------------------------------------------------- AZMAN HUSSAIN, individually and on behalf of all others similarly situated v. BURGER KING CORPORATION, Case No. 4:22-cv-02258 (N.D. Cal., April 11, 2022) is a class action lawsuit on behalf of the Plaintiff and similarly situated consumers who purchased for personal, family, or household use, the Defendant's Whopper, which is unfit for human consumption because the packaging in which it is contained -- and is essential and integral to delivering the Product to the consuming public -- contains unsafe per- and polyfluoralkyl substances (PFAS). PFAS are a group of synthetic chemicals known to be harmful to both the environment and humans. Because PFAS persist and accumulate over time, they are harmful even at very low levels. Indeed, "PFAS have been shown to have a number of toxicological effects in laboratory studies and have been associated with thyroid disorders, immunotoxic effects, and various cancers in epidemiology studies." In fact, scientists are studying -- and are extremely concerned about -- how PFAS affect human health. Consequently, the CDC outlined "a host of health effects associated with PFAS exposure, including cancer, liver damage, decreased fertility, and increased risk of asthma and thyroid disease." Despite Defendant's alleged representations to consumers that its products are "safe," and "sustainable," including in its website and the Product packaging -- which is an essential and integral part of delivering the Product to consumers -- independent research conducted by Consumer Reports 5 determined that the Product packaging contains 249.7 parts per million (ppm) of total organic fluorine." Plaintiff Hussain has purchased the Product from Defendant for several years, including as recently as March 2022 from a Burger King located in Fremont, California. Prior to his purchase, Mr. Hussain reviewed the labeling, packaging, and marketing materials of his Product, including those set out herein, including that the Product was safe and sustainable. Mr. Hussain understood that based on Defendant's claims, that Product was safe for consumption, and otherwise a sustainable product. According to the complaint, the Plaintiff and the Class were injured by the full purchase price of the Product because the Product is worthless, as it is marketed as safe and sustainable when it is not in fact safe and sustainable. Burger King is an American multinational chain of hamburger fast food restaurants. Headquartered in Miami-Dade County, Florida, the company was founded in 1953 as Insta-Burger King, a Jacksonville, Florida-based restaurant chain.[BN] The Plaintiff is represented by: L. Timothy Fisher, Esq. Sean L. Litteral, Esq. Joshua D. Arisohn, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com slitteral@bursor.com jarisohn@bursor.com aleslie@bursor.com C3.AI INC: Levi & Korsinsky Reminds of May 3 Deadline ----------------------------------------------------- Levi & Korsinsky, LLP on April 11 disclosed that class action lawsuits have commenced on behalf of shareholders of the following publicly-traded companies. Shareholders interested in serving as lead plaintiff have until the deadlines listed to petition the court. Further details about the cases can be found at the links provided. There is no cost or obligation to you. AI Shareholders Click Here: https://www.zlk.com/pslra-1/c3-ai-inc-loss-submission-form?prid=25822&wire=1 LCID Shareholders Click Here: https://www.zlk.com/pslra-1/lucid-group-inc-loss-submission-form?prid=25822&wire=1 ABBV Shareholders Click Here: https://www.zlk.com/pslra-1/abbvie-inc-loss-submission-form?prid=25822&wire=1 This lawsuit is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired: (a) C3.ai Class A common stock pursuant and/or traceable to the documents issued in connection with the Company's initial public offering conducted on or about December 9, 2020; and/or (b) C3.ai securities between December 9, 2020 and February 15, 2022, both dates inclusive. Lead Plaintiff Deadline: May 3, 2022 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/c3-ai-inc-loss-submission-form?prid=25822&wire=1 According to the filed complaint, (i) C3.ai's partnership with Baker Hughes was deteriorating; (ii) C3.ai was employing a flawed accounting methodology to conceal the deterioration of its Baker Hughes partnership; (iii) C3.ai faced challenges in product adoption and significant salesforce turnover; (iv) the Company overstated, inter alia, the extent of its investment in technology, description of its customers, its total addressable market, the pace of its market growth, and the scale of alliances with its major business partners; and (v) as a result, the Company's public statements were materially false and misleading at all relevant times. This lawsuit is on behalf of a class of all persons and entities who purchased or otherwise acquired Lucid common stock between November 15, 2021, and February 28, 2022, inclusive. Lead Plaintiff Deadline: May 31, 2022 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/lucid-group-inc-loss-submission-form?prid=25822&wire=1 The filed complaint alleges that defendants made materially false and/or misleading statements and failed to disclose material adverse facts about Lucid's business and operations. Specifically, the Company overstated its production capabilities while concealing that "extraordinary supply chain and logistics challenges" were hampering Lucid's operations. As a result of the defendants' wrongful acts and omissions, and the significant decline in the market value of Lucid's common stock, Lucid investors have suffered significant damages. AbbVie Inc. ABBV Lawsuit on behalf of: investors who purchased April 30, 2021 - August 31, 2021 Lead Plaintiff Deadline: June 6, 2022 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/abbvie-inc-loss-submission-form?prid=25822&wire=1 According to the filed complaint, during the class period, AbbVie Inc. made materially false and/or misleading statements and/or failed to disclose that: (1) safety concerns about Pfizer Inc.'s drug Xeljanz extended to Abbvie's drug Rinvoq and to other Janus kinase enzyme inhibitor drugs; (2) as a result, it was likely that the U.S. Food and Drug Administration would require additional safety warnings for Rinvoq and would delay the approval of additional treatment indications for Rinvoq; and (3) therefore, defendants' statements about the Company's business, operations, and prospects lacked a reasonable basis. You have until the lead plaintiff deadlines to request that the court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a nationally recognized firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation and have recovered hundreds of millions of dollars for aggrieved shareholders. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Levi & Korsinsky, LLP Joseph E. Levi, Esq. Eduard Korsinsky, Esq. 55 Broadway, 10th Floor New York, NY 10006 jlevi@levikorsinsky.com Tel: (212) 363-7500 Fax: (212) 363-7171 www.zlk.com [GN] C3.AI: Kessler Topaz Meltzer Reminds of May 3 Deadline ------------------------------------------------------ The law firm of Kessler Topaz Meltzer & Check, LLP (www.ktmc.com) informs investors that a securities class action lawsuit has been filed in the United States District Court for the Northern District of California against C3.ai, Inc. ("C3") (NYSE: AI). The action charges C3 with violations of the federal securities laws, including omissions and fraudulent misrepresentations relating to the company's business, operations, and prospects. As a result of C3's materially misleading statements to the public, C3's investors have suffered significant losses. Kessler Topaz is one of the world's foremost advocates in protecting the public against corporate fraud and other wrongdoing. Our securities fraud litigators are regularly recognized as leaders in the field individually and our firm is both feared and respected among the defense bar and the insurance bar. We are proud to have recovered billions of dollars for our clients and the classes of shareholders we represent. CLICK HERE TO SUBMIT YOUR C3 LOSSES. YOU CAN ALSO CLICK ON THE FOLLOWING LINK OR COPY AND PASTE IN YOUR BROWSER: https://www.ktmc.com/ai-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=ai LEAD PLAINTIFF DEADLINE: MAY 3, 2022 CLASS PERIOD: DECEMBER 9, 2020 THROUGH FEBRUARY 15, 2022 CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS: James Maro, Esq. at (484) 270-1453 or via email at info@ktmc.com C3'S ALLEGED MISCONDUCT C3 is an artificial intelligence software company that offers software-as-a-service applications for enterprises in North America, Europe, the Middle East, Africa, the Asia Pacific, and internationally. On February 16, 2022, Spruce Point Capital Management, LLC ("Spruce Point Capital") published a short-seller report on C3. In the report, Spruce Point Capital revealed that it found "multiple instances of claims made by C3 that appear to be exaggerated, or don't reconcile with our research findings." Specifically, the report indicates, among other things, that given shifty customer definition disclosures, there is a high probability that C3 is overstating its paying and active customer Inflated Technology Value. Additionally, Spruce Point Capital found that C3's implied market share of just 0.12% supports either market size inflation or its irrelevance in the industry sales cycle. Following this news, C3's stock price fell $1.01 per share, or 3.93%, to close at $24.70 per share on February 16, 2022. WHAT CAN I DO? C3 investors may, no later than May 3, 2022 seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose to do nothing and remain an absent class member. Kessler Topaz Meltzer & Check, LLP encourages C3 investors who have suffered significant losses to contact the firm directly to acquire more information. WHO CAN BE A LEAD PLAINTIFF? A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. The lead plaintiff is usually the investor or small group of investors who have the largest financial interest and who are also adequate and typical of the proposed class of investors. The lead plaintiff selects counsel to represent the lead plaintiff and the class and these attorneys, if approved by the court, are lead or class counsel. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP Kessler Topaz Meltzer & Check, LLP prosecutes class actions in state and federal courts throughout the country and around the world. The firm has developed a global reputation for excellence and has recovered billions of dollars for victims of fraud and other corporate misconduct. All of our work is driven by a common goal: to protect investors, consumers, employees and others from fraud, abuse, misconduct and negligence by businesses and fiduciaries. The complaint in this action was not filed by Kessler Topaz Meltzer & Check, LLP. For more information about Kessler Topaz Meltzer & Check, LLP please visit www.ktmc.com. CONTACT: Kessler Topaz Meltzer & Check, LLP James Maro, Jr., Esq. 280 King of Prussia Road Radnor, PA 19087 (484) 270-1453 info@ktmc.com [GN] CABALETTA BIO: Bragar Eagel & Squire Reminds of April 29 Deadline ----------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, reminds investors that class actions have been commenced on behalf of stockholders of Cabaletta Bio, Inc. (NASDAQ: CABA), Telefonaktiebolaget LM Ericsson (NASDAQ: ERIC), C3.ai, Inc. (NYSE: AI), and Rivian Automotive, Inc. (NASDAQ: RIVN). Stockholders have until the deadlines below to petition the court to serve as lead plaintiff. Additional information about each case can be found at the link provided. Cabaletta Bio, Inc. (NASDAQ: CABA) Class Period: October 24, 2019 IPO; October 24, 2019 - December 13, 2021 Lead Plaintiff Deadline: April 29, 2022 According to the lawsuit, the IPO offering documents and defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) top-line data of the Phase 1 Clinical Trial indicated that DSG3-CAART had, among other things, worsened certain participants' disease activity scores and necessitated additional systemic medication to improve disease activity after DSG3-CAART infusion; (2) accordingly, DSG3-CAART was not as effective as the Company had represented to investors; (3) therefore, the Company had overstated DSG3-CAART's clinical and/or commercial prospects; and (4) as a result, the Company's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. For more information on the Cabaletta class action go to: https://bespc.com/cases/CABA Telefonaktiebolaget LM Ericsson (NASDAQ: ERIC) Class Period: April 27, 2017 - February 25, 2022 Lead Plaintiff Deadline: May 2, 2022 The lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and/or misleading statements and/or failing to disclose that: (1) Ericsson overstated the extent to which it had reformed its business practices to eliminate the use of bribes to secure business in foreign countries; (2) Ericsson had paid bribes to the terrorist group the Islamic State in Iraq and Syria ("ISIS" or the "Islamic State") to gain access to certain transport routes in Iraq; (3) accordingly, the Company's revenues derived from its operations in Iraq were, in at least substantial part, derived from unlawful conduct and thus unsustainable; and (4) as a result, the Company's public statements were materially false and misleading at all relevant times. On February 15, 2022, during intraday trading hours, Ericsson issued a press release disclosing media inquiries into its business dealings in Iraq. That press release assured investors of the Company's "transparency" regarding these inquiries, while vaguely alluding to having undertaken its own investigative and compliance efforts. Then, on February 16, 2022, Ericsson's Chief Executive Officer ("CEO") told a Swedish newspaper that the Company may have made payments to ISIS to gain access to certain transport routes in Iraq, noting that the Company had identified "unusual expenses dating back to 2018" but had not yet determined the final recipient of the funds for those expenses, although Defendants could "see that it disappeared[,]" and that Ericsson has spent "considerable resources trying to understand this as best we can." Following these disclosures, Ericsson's American Depositary Share ("ADS") price fell $1.44 per ADS, or 11.57%, to close at $11.01 per ADS on February 16, 2022. Finally, on Sunday, February 27, 2022, the International Consortium of Investigative Journalists ("ICIJ") published a report on Ericsson's alleged dealings with ISIS in Iraq, citing a leaked internal investigation that revealed that Ericsson had reportedly made "tens of millions of dollars in suspicious payments" over nearly a decade to keep its business in the country. The ICIJ report also alleged that "a spreadsheet lists company probes into possible bribery, money laundering and embezzlement by employees in Angola, Azerbaijan, Bahrain, Brazil, China, Croatia, Libya, Morocco, the United States and South Africa[,]" which "have not been previously disclosed." On this news, Ericsson's ADS price fell $0.84 per ADS, or 8.3%, from its closing price on February 25, 2022, to close at $9.28 per ADS on February 28, 2022, the next trading day. For more information on the Ericsson class action go to: https://bespc.com/cases/ERIC C3.ai, Inc. (NYSE: AI) Class Period: December 9, 2020 IPO; December 9, 2020 - February 15, 2022 Lead Plaintiff Deadline: May 3, 2022 The Complaint alleges that the Offering Documents were negligently prepared and, as a result, contained untrue statements of material fact or omitted to state other facts necessary to make the statements made not misleading and were not prepared in accordance with the rules and regulations governing their preparation. Additionally, throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations, and compliance policies. Specifically, the Offering Documents and Defendants made false and/or misleading statements and/or failed to disclose that: (1) C3.ai's partnership with Baker Hughes was deteriorating; (2) C3.ai's was employing a flawed accounting methodology to conceal the deterioration of its Baker Hughes partnership; (3) C3.ai faced challenges in product adoption and significant salesforce turnover; (4) the Company overstated, inter alia, the extent of its investment in technology, description of its customers, its total addressable market ("TAM"), the pace of its market growth, and the scale of alliances with its major business partners; and (5) as a result, the Company's public statements were materially false and misleading at all relevant times. For more information on the C3.ai class action go to: https://bespc.com/cases/AI Rivian Automotive, Inc. (NASDAQ: RIVN) Class Period: November 10, 2021 IPO Lead Plaintiff Deadline: May 6, 2022 Rivian is an electric vehicle company that in 2018 unveiled its first consumer EV's, the R1T electric pickup truck, and the R1S electric SUV. On November 10, 2021, Rivian offered 153 million shares to the public through an IPO at a price of $78.00 per share for total proceeds of $11.93 billion. According to the Registration Statement, the "R1T and R1S introduce our brand to the world and will serve as our flagship vehicles as we continue to expand our offerings." Rivian's focus on its reputation for transparency and devotion to its customers, along with Rivian's R1T and R1S, including the large number of preorders and potential for increased demand were key selling points to IPO investors. Unbeknownst to investors, however, the Registration Statement's representations were materially inaccurate, misleading, and/or incomplete because they failed to disclose, among other things, that the R1T and R1S were underpriced to such a degree that Rivian would have to raise prices shortly after the IPO and that these price increases would tarnish Rivian's reputation as a trustworthy and transparent company and would put a significant number of the existing backlog of 55,400 preorders along with future preorders in jeopardy of cancellation. As a result, the price of the Company's shares was artificially and materially inflated at the time of the Offering. For more information on the Rivian class action go to: https://bespc.com/cases/RIVN About Bragar Eagel & Squire, P.C.: Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. Contact Information: Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Alexandra B. Raymond, Esq. (212) 355-4648 investigations@bespc.comwww.bespc.com [GN] CANADA: Court Certifies Class Action Over CWB Privatization ----------------------------------------------------------- Glenda-Lee Vossler, writing for SwiftCurrent Online, reports that a Manitoba Court of Queen's Bench Judge has certified a Class Action lawsuit alleging financial irregularities occurred during the privatization of the Canadian Wheat Board. Manitoba farmer Andrew Dennis filed the lawsuit against the Government of Canada and G3 Canada Ltd. Dennis is acting as the representative plaintiff for farmers who sold wheat to the CWB's pool accounts in the 2010/11 and 2011/12 crop years. The lawsuit alleges $145,000,000 of farmer's money was unlawfully sheltered into an account that could be transferred to the purchasers with the privatization of the CWB in 2012. A statement from the Friends of the Canadian Wheat Board (FCWB) states that . . . . the Manitoba Court of Appeal accepted in a 2020 ruling that if this money had not been sheltered by the Government, it would have been paid to farmers. The claim also alleges that the CWB is liable to farmers by not paying them the full amount required under their contracts. Stewart Wells, Chair of the FCWB, says the certification of the lawsuit now means the case can move to trial. "The way that dismantling was done by Mr Ritz was morally wrong, and now we're going to find out if it was not just morally wrong, but also legally wrong." Anders Bruun, one of the lawyers involved, says they are also seeking $10,000,000 in punitive damages plus interest on the full amount claimed for this misallocation of funds. Wells says for over a decade the FCWB have alleged that the Government of Canada and CWB took money that belonged to farmers and sold it as part of the asset base taken over by the Crown and then provided to G3 Canada Ltd. "We're alleging that in his haste, and I think it's not going too far to call Mr. Ritz's actions mean spirited. But in his haste to strip the assets away from farmers and get ready to give those assets to the government of Saudi Arabia and the grain company Bunge. Mr. Ritz and the Cabinet orders were a little overzealous and actually went past his authority as Agricultural Minister." Wells says the wheels of justice have been grinding very slowly because the government has been wasting taxpayers money trying to delay everything, but those wheels are still grinding, and that's the important point. [GN] CANADA: Farmers' CWB Class Action Lawsuit Gets Certified -------------------------------------------------------- Allan Dawson at GFM Network News reports that a class action lawsuit alleging the government of Canada and G3 Canada Ltd. unlawfully used millions of farmer dollars to privatize the Canadian Wheat Board (CWB) has been certified after wending its way through the courts for 10 years. Court of Queen's Bench Justice Chris Martin delivered his written judgment in Winnipeg, clearing the way for a judge to hear the allegations on behalf of an estimated 70,000 or so western Canadian farmers who delivered grain to the wheat board's pool accounts in 2010-11 and 2011-12. "I think it is good news for the farmers who felt they weren't dealt with fairly when (Agriculture Minister Gerry) Ritz and (Prime Minister Stephen) Harper were privatizing the wheat board," Stewart Wells, a Swift Current, Sask., farmer and member of the Friends of the Canadian Wheat Board, said in an interview. "The wheels of justice grind slowly but they're still grinding. "It's the first major progress since the case was launched in 2012 and it's certified so this is going to be heard in court. It's just not going to be swept under the rug somewhere. So that's a pretty major advancement." However, Wells didn't rule out the possibility that the government and G3 will appeal Justice Martin's decision. An out-of-court settlement is also possible. The Harper government government removed the CWB as the sole marketer of western Canadian wheat and barley destined for export or domestic human consumption Aug. 1, 2012. In 2015, G3 (Global Grain Group), newly formed to subsume the CWB, agreed to invest $250.5 million and in return received the CWB's assets from the federal government. G3 is a joint venture firm majority-owned by the state-owned Saudi Agricultural Livestock Investment Co. (SALIC) and Bunge. The lawsuit brought by Brookdale, Man., farmer Andrew Dennis alleges Ritz acted unlawfully by taking $150.9 million of farmers' money from the CWB's pool accounts to help privatize the wheat board. One hundred and forty-five million dollars was used to triple the wheat board's contingency fund and $5.9 million went to cover some of the transition costs. Under the Canadian Wheat Board Act, all money collected in the CWB's pool accounts earned from marketing farmers' grain was required to be paid to farmers, less board operating expenses. "What's alleged is that Gerry Ritz . . . was acting illegally and not in good faith -- the legal phrase is misfeasance while in public office -- when he directed money to the contingency fund that we argue ought to have been paid to farmers instead," Wells said. "We argue that he was morally and legally wrong to be hiving off money that should have gone to the pooling accounts and been paid to farmers but instead he was trying to build up the Canadian Wheat Board as an entity so he could later on give it away to Saudi Arabia and Bunge." The CWB's board of directors unanimously passed a resolution calling on the government to cover the cost of privatizing the board instead of farmers, Wells said. "And then Ritz said in public that he would pick up all the cost, but when the (CWB's) final annual report came out it showed that they had taken $5.9 million out of the pooling account to cover restructuring costs," he said. "It makes no sense. It just loops back to the notion that farmers weren't being treated fairly." The suit also asks for $10 million, plus interest since 2012, in damages, bringing the total compensation sought to $160.9 million, excluding interest. "It's not that much per individual farmer (if the suit is won)," Wells said. "It totally depends how many tonnes they (farmers) delivered to the pools in those two years, but that's one of the reasons class actions were invented. It wouldn't make sense for one or a very small group of farmers to take this sort of action, but it certainly makes sense to launch it as a class." Farmers who delivered to the pools in 2010-11 and 2011-12 are automatically part of the class action lawsuit unless they opt out, Wells said. More information for affected farmers will be posted on a website, he added. Wells doesn't know when the case will be heard, but doesn't rule out it taking another three to five years to resolve. "They (federal government and G3) have been deliberately trying to delay this process all the way along for the last 10 years… but this is a very significant step toward getting the action certified having the representative plaintiff Andrew Dennis named in the action so he can carry it forward on behalf of all these farmers," Wells said. "It's a really crucial step. Without this the case couldn't have gone anywhere." Wells declined to disclose how much money has been spent litigating the case so far. "We have said all along that we are very grateful to all of the farmers that supported us when we started fundraising for this action back in very, very late 2011 and then in 2012, 2013 and 2014," he added. ‘We wouldn't have gotten anywhere without the support of those farmers there's no question about that. This is truly the farmers' action. Everybody is looking forward to the result." While the case is about the alleged misuse of farmers' money, it's also about holding government to account, Wells said. "Cabinet, through orders-in-council, can change some things but they can never override the existing legislation," he said. "And that's what we are arguing happened here -- that Ritz was overriding the original legislation with his orders-in-council, which in turn makes his actions illegal. "Whether they (farmers) agreed with the wheat board being a (mandatory) marketing agency or not they still didn't deserve to have money taken from the pooling accounts and just given to the King of Saudi Arabia and Bunge." After taking over the CWB, the new G3, renamed G3 Canada Ltd., was 50.1 per cent owned by SALIC and Bunge and up to 49.9 per cent potentially owned by farmers, depending on how much grain they delivered to the new firm. Farmers were to earn $5 of G3 equity for every tonne. G3 Canada had two shareholders -- G3 Global Grain Group and the farmers' equity trust. Farmers who deliver to CWB own units in the trust and the trust owns shares in G3 Canada Limited. After the farmers' equity is fully allocated, or in seven years (2022), G3 Canada Ltd. can buy the equity, but isn't obliged to. In 2016 Reuters reported SALIC's ownership within G3 Global Grain Group jumped to 75 per cent from 49 per cent, according to an April 28, 2016 Bunge filing. -- Allan Dawson is a reporter for the Manitoba Co-operator at Miami, Man. [GN] CANADIAN AIR: Court Approves CAN$16MM Class Action Settlements -------------------------------------------------------------- Leah Jones, writing for Energy Global, reports that on March 28, 2022, Siskinds of London, Ontario, Camp Fiorante Matthews Mogerman of Vancouver, BC, and Liebman Legal Inc. of Montreal, Quebec, Canada, announced court approval of a protocol for the second distribution of settlement funds in the Canadian Air Cargo price-fixing class action. The class action relates to an alleged global conspiracy to fix prices of airfreight shipping services. On 28 March 2022, Siskinds of London, Ontario, Camp Fiorante Matthews Mogerman of Vancouver, BC, and Liebman Legal Inc. of Montreal, Quebec, Canada, announced court approval of a protocol for the second distribution of settlement funds in the Canadian Air Cargo price-fixing class action. The class action relates to an alleged global conspiracy to fix prices of airfreight shipping services. Settlements totalling CAN$16 million have been reached with British Airways and Air Canada. This brings total settlements reached in this action to over CAN$45 million. The settled defendants do not admit any wrongdoing or liability. The Ontario, British Columbia and Québec courts approved the settlements and a protocol for distributing the second round of settlement funds. Settlements totalling CAN$29.6 million were previously distributed. The action is now resolved in its entirety. "This litigation raised complex factual and legal issues. As part of this litigation, the Ontario Court of Appeal held that the Ontario court has jurisdiction to certify an international class. Leave to appeal to the Supreme Court of Canada was denied. This was an important ruling that paves the way for other international classes in appropriate circumstances," said Linda Visser of Siskinds. "Price-fixing conspiracies result in businesses and consumers paying artificially inflated prices for goods and services. Class actions help to return those inflated prices to victims of such conspiracies," said David Jones of Camp Fiorante Matthews Mogerman. Persons who purchased airfreight shipping services to or from Canada (excluding shipments to or from the US) between January 2000 and September 2006 are eligible to claim settlement benefits. Claims can be filed online at www.aircargosettlement2.com on or before 27 June 2022. More information can be found online at www.aircargosettlement2.com or by calling the claims administrator at 1-888-291-9655 in Canada or the US, or 1-614-553-1296 internationally. About Class Counsel Siskinds LLP is a full-service law firm with offices in Toronto and London, and affiliate offices in Montreal and Quebec City. Siskinds LLP is Canada's leading class action law firm. Camp Fiorante Matthews Mogerman is a boutique law firm based in Vancouver specialising in class actions, aviation accident litigation, and product liability litigation, on behalf of plaintiffs. Liebman Legal Inc. is a law firm based in Montreal. It provides complete legal services to its private and corporate clients. For further information please contact: Media Inquiries: Charles Wright or Linda J. Visser Siskinds LLP 275 Dundas Street, Unit 1 P.O. Box 2520 London, ON N6B 3L1 Toll-free (Canada): 1-800-461-6166 ext. 2455 Email: aircargo@siskinds.com British Columbia: David Jones Camp Fiorante Matthews Mogerman #400 - 856 Homer Street Vancouver, BC V6B 2W5 Tel: 1-800-689-2322 Email: djones@cfmlawyers.ca Quebec: Moe F. Liebman Liebman Legal Inc. 1 Westmount Square #350 Montreal, QC H3Z 2P9 Tel: 514-846-0666 Email: moe@liebmanlegal.com [GN] CARDONE TRAINING: Handelsman Sues Over Unwanted Telephone Calls --------------------------------------------------------------- JASON HANDELSMAN, individually and on behalf of all, others similarly situated, v. CARDONE TRAINING TECHNOLOGIES, INC., Case No. 147427907 (Fla. Cir., Miami-Dade Cty., April 11, 2022) contends that the Defendant promotes and markets its merchandise, in part, by placing unwanted phone calls to wireless phone users, in violation of the Telephone Consumer Protection Act. To promote its business, the Defendant sends prerecorded voice messages to the telephones of consumers without consent to do so. Through this action, the Plaintiff seeks injunctive relief to halt the Defendant's unlawful conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals. The Plaintiff also seeks statutory damages on behalf of himself and Class Members, and any other available legal or equitable remedies resulting from the unlawful actions of the Defendant. On March 16, 2022, the Defendant called Plaintiff's cellular telephone number ending in 9486 using a prerecorded voice message. When Plaintiff listened to the prerecorded message, he was easily able to determine that it was prerecorded, the lawsuit says. The Defendant's prerecorded voice call constitutes telemarketing because the purpose of the message was to encourage Plaintiff to buy tickets to Defendant's event, the lawsuit says.[BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com - and - Michael Eisenband, Esq. EISENBAND LAW, P.A. 515 E Las Olas Blvd, Ste. 120 13Fort Lauderdale, FL 33301 Telephone: (954) 533-4092 E-mail: meisenband@eisenbandlaw.com CARNAGIO ENTERPRISES: Judgment Bids in American Family Suit OK'd ---------------------------------------------------------------- In the case, AMERICAN FAMILY MUTUAL INSURANCE COMPANY, S.I. and AUSTIN MUTUAL INSURANCE COMPANY, Plaintiffs v. CARNAGIO ENTERPRISES, INC., an Illinois corporation, and ANGELA KARIKARI, individually and on behalf of all others similarly situated, Defendants, Case No. 20 C 3665 (N.D. Ill.), Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part each of the cross-motions for summary judgment. I. Background Defendant Carnagio is a McDonald's franchisee insured by both Plaintiff American Family and Plaintiff Austin Mutual. In early 2019, Defendant Karikari filed a class action lawsuit against Carnagio, alleging violations of Illinois's Biometric Information Privacy Act ("BIPA"). Carnagio informed the insurance companies of the lawsuit and requested coverage. The Plaintiffs then brought the instant suit, seeking a declaratory judgment that violations of BIPA are excluded under the policies they had issued to Carnagio. As a result, the Plaintiffs contend that they have no duty to defend Carnagio in Karikari's suit. Carnagio operates 13 McDonald's restaurant franchises in Illinois. From March 1, 2015, to March 1, 2020, all of Carnagio's McDonald's locations were insured under policies issued by American Family. From March 1, 2020 to March 1, 2021, Carnagio's restaurants were covered under Businessowners' Liability Insurance policies issued by Austin Mutual. Each of these policies promises coverage for "the sums that the insured becomes legally obligated to pay as damages because of 'bodily injury', 'property damage' or 'personal and advertising injury' to which this insurance applies." The policies further acknowledge that American Family and Austin Mutual have a duty to defend Carnagio "against any 'suit' seeking damages for" those covered harms. The policies also contain identical exclusion provisions, entitled "Employment-Related Practices" ("ERP exclusion") and "Distribution Of Material In Violation Of Statutes" ("Statutory Violation exclusion"). Additionally, the Austin Mutual policy includes an exclusion dealing with access to or disclosure of confidential or personal information ("Access/Disclosure exclusion"). Ms. Karikari alleges that she worked at one of Carnagio's McDonald's restaurants starting in 2017. According to her, Carnagio required her to clock in and out of each shift using a fingerprint scanner. Despite its use of fingerprints for timekeeping and identification, Karikari claims, Carnagio never informed "its employees of the complete purposes for which it collects their sensitive biometric data or to whom the data is disclosed if at all"; never gave its employees "a written, publicly available policy identifying its retention schedule, and guidelines for permanently destroying its employees' fingerprints"; and never had her sign a release allowing Carnagio to collect her fingerprints. In March 2019, Karikari filed a lawsuit against Carnagio in state court for violating provisions of BIPA. And Carnagio tendered notice of the lawsuit to the insurance companies. The Plaintiffs then filed the lawsuit, seeking a declaratory judgment that they have no duty to defend Carnagio against Karikari's claims in state court. II. Discussion As a preliminary matter, the parties agree that Illinois law applies. Furthermore, the parties have not conducted discovery in the case, and all facts relevant to the cross-motions are undisputed. Accordingly, Judge Lee turns to the question at hand, namely, whether any of Carnagio's insurance policies provide coverage for the defense of Karikari's lawsuit. To answer this question, the he must look to the language of the insurance policies. In the case, all parties agree that a lawsuit arising under BIPA constitutes a claim asserting a "personal injury" that triggers coverage under Carnagio's policies. The dispute is whether any of the exclusions in the policies operate to preclude coverage for Karikari's lawsuit. A. ERP Exclusion The Plaintiffs first contend that the ERP exclusion precludes coverage because "the BIPA violations alleged in the Underlying Complaint unquestionably arise out of the employment relationship and occurred while Karikari and the other employees were performing the work-related duty of using a biometric time clock to record their hours." Not surprisingly, the Defendants disagree. Judge Lee concludes that Carnagio's practice of requiring its employees to provide their fingerprints when clocking in and out of work does not fall within the ERP exclusion. At a minimum, there is significant ambiguity as to whether the exclusion disavows coverage of Karikari's claims. And, under Illinois law, such ambiguity must be resolved in the insured's favor. B. Statutory Violation Exclusion In West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan, Inc., the Supreme Court of Illinois held that a nearly identical provision did not exclude violations of BIPA from coverage. But the Plaintiffs contend the result in Krishna does not control the case, because the provision in Krishna, although otherwise identical, had a more specific title: "Violation of Statutes that Govern E-Mails, Fax, Phone Calls or Other Methods of Sending Material or Information." Because the Supreme Court of Illinois began its Krishna analysis with the title of the exclusion, the Plaintiffs contend that Krishna should have no bearing on the interpretation of the exclusion. At the outset, Judge Lee is not convinced that the difference in the titles makes these exclusions substantively different. But even if the change in title were material, the Supreme Court of Illinois's analysis in Krishna would remain the appropriate starting point for this Court's understanding of the Statutory Violation exclusion in the instant case. Judge Lee holds that the underlying claims under BIPA are at least potentially covered by Carnagio's policies. Additionally, because American Family raised only the ERP exclusion and Statutory Violation exclusion, neither of which unambiguously exclude coverage in the case, the Plaintiffs' motion for summary judgment is denied as to American Family, and Karikari's cross-motion for summary judgment as to American Family is granted with respect to these exclusions. C. Access/Disclosure Exclusion Austin Mutual argues that a third exclusion in its policy, the Access/Disclosure exclusion, precludes coverage in the case. Judge Lee concludes that claims for false light invasion of privacy seek damages arising out of a publication of material that violates a person's right of privacy, and, therefore, would satisfy the definition of "personal and advertising injury" in the policy. Yet, such claims would not fall under the Access/Disclosure exclusion because they would not seek damages arising out of any access to or disclosure of any person's confidential or personal information. Therefore, contrary to Carnagio's contention, the Court's construction of the Access/Disclosure exclusion would not render coverage under the policy illusory. For all of these reasons, Judge Lee holds that the policy's Access/Disclosure provision precludes coverage of the Karikari lawsuit. III. Conclusion For the foregoing reasons, the cross-motions for summary judgment are each granted in part and denied in part as follows: Judge Lee issued a declaratory judgment that the Karikari lawsuit does not implicate the Austin Mutual policy issued to Carnagio and Austin Mutual has no obligation to defend or indemnify Carnagio in connection with the Karikari lawsuit. Furthermore, Karikari's suit is not excluded under the policy issued to Carnagio by American Family. A full-text copy of the Court's March 30, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/tcbsp9jw from Leagle.com. CARVER FEDERAL: Improperly Charges Overdraft Fees, Bonilla Claims ----------------------------------------------------------------- WANDA BONILLA, individually and on behalf of all others similarly situated, Plaintiff v. CARVER FEDERAL SAVINGS BANK, Defendant, Case No. 1:22-cv-03076 (S.D.N.Y., April 13, 2022) is an action against the Defendant's routine practices of assessing more than one insufficient funds fee ("NSF Fee") on the same transaction, and assessing an overdraft fee ("OD Fee") on transactions that did not actually overdraw checking accounts. CARVER FEDERAL SAVINGS BANK operates as a full-service bank. The Bank offers savings account, deposit, loans, insurance, investment, bill payment, cash management, debit and prepaid cards, and online banking services. Carver Federal Savings Bank serves African American communities in the United States. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 Email: ashamis@shamisgentile.com - and - Jeffrey D. Kaliel, Esq. KALIELGOLD PLLC 1100 15th Street NW, 4th Floor Washington, D.C. 20005 Telephone: (202) 350-4783 Email: jkaliel@kalielpllc.com - and - Sophia G. Gold, Esq. KALIELGOLD PLLC 950 Gilman Street, Suite 200 Berkeley, CA 94710 Telephone: (202) 350-4783 Email:sgold@kalielgold.com CDK GLOBAL: Bragar Eagel Investigates Potential Securities Claims ----------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized stockholder rights law firm, has launched an investigation into whether the officers or directors of CDK Global, Inc. (NASDAQ: CDK) breached their fiduciary duties or violated the federal securities laws in connection with the company's acquisition by Brookfield Business Partners (NYSE: BBUC, BBU). On April 7, 2022, CDK Global announced that it had entered into an agreement to be acquired by Brookfield in a deal valued at approximately $8.3 billion. Pursuant to the merger agreement, CDK Global stockholders will receive $54.87 in cash for each share of CDK Global common stock owned. The deal is scheduled to close in the third quarter of 2022. Bragar Eagel & Squire is concerned that CDK Global's board of directors oversaw an unfair process and ultimately agreed to an inadequate merger agreement. Accordingly, the firm is investigating all relevant aspects of the deal and is committed to securing the best result possible for CDK Global's stockholders. If you own shares of CDK Global and are concerned about the proposed merger, or you are interested in learning more about the investigation or your legal rights and remedies, please contact Melissa Fortunato or Alexandra Raymond by email at mergers@bespc.com or telephone at (646) 860-9157, or by filling out this contact form. There is no cost or obligation to you. About Bragar Eagel & Squire, P.C.: Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. Contact Information: Bragar Eagel & Squire, P.C. Melissa Fortunato, Esq. Alexandra Raymond, Esq. mergers@bespc.comwww.bespc.com [GN] CELSIUS HOLDINGS: Vincent Wong Law Reminds of May 16 Deadline ------------------------------------------------------------- Attention Celsius Holdings, Inc. ("Celsius") (NASDAQ: CELH) shareholders: The Law Offices of Vincent Wong on April 11 disclosed that a class action lawsuit has commenced on behalf of investors who purchased between August 12, 2021 and March 1, 2022. If you suffered a loss on your investment in Celsius, contact us about potential recovery by using the link below. There is no cost or obligation to you. https://www.wongesq.com/pslra-1/celsius-holdings-inc-loss-submission-form?prid=25744&wire=4 ABOUT THE ACTION: The class action against Celsius includes allegations that the Company made materially false and/or misleading statements and/or failed to disclose that: (1) the Company had improperly recorded expenses for non-cash share-based compensation for second and third quarters of 2021; (2) as a result, the Company's financial statements for those periods would be restated, including to report a net loss for the third quarter of 2021; (3) there was a material weakness in Celsius's internal controls over financial reporting; and (4) as a result of the foregoing, defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. DEADLINE: May 16, 2022 Aggrieved Celsius investors only have until May 16, 2022 to request that the Court appoint you as lead plaintiff. You are not required to act as a lead plaintiff in order to share in any recovery. Vincent Wong, Esq. is an experienced attorney who has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Vincent Wong, Esq. 39 East Broadway Suite 304 New York, NY 10002 Tel. 212.425.1140 E-Mail: vw@wongesq.com [GN] CHICAGO, IL: Judge Pares Claims in Vehicle Impound Class Action --------------------------------------------------------------- Scott Holland, writing for Cook County Record, reports that a judge has split up a longstanding legal action challenging Chicago's vehicle impounding policies, but will allow plaintiffs to keep pressing their claims that the city violated their constitutional property rights by seizing vehicles and then selling them to tow companies before the owners had enough time to retrieve their cars. In June 2019, attorneys with the firm of Myron M. Cherry & Associates, of Chicago, filed suit on behalf of named plaintiff Andrea Santiago. The lawsuit aims to force the city to pay up to two classes of perhaps tens of thousands of car owners whose vehicles were either towed by the city after being declared abandoned, or were later "disposed of by the city" -- a phrase that often meant the cars were sold to tow companies, which later resold the vehicles for scrap and parts. In November 2020, after the city removed the complaint to federal court, U.S. District Judge Matthew Kennelly said Santiago's complaint met thresholds needed to certify it to proceed as a class action. The city appealed, and the U.S. Seventh Circuit Court of Appeals vacated Kennelly's order and sent the case back to district court in December. After Santiago filed an amended complaint, the city again moved to dismiss. Kennelly ruled on that motion in an opinion issued April 5, only partially granting the city's request. Santiago's amended complaint sought to create two classes, one for people whose vehicles the city towed away and a second for those whose vehicles the city sold. According to court documents, Santiago is a senior citizen who uses a wheelchair due to multiple sclerosis. Her daughter, Lisanda Velez, drives Santiago in her mother's vehicle. On June 5, 2018, a city employee placed a sticker on the window of Santiago's 1998 GMC Savanna 1500 indicating the city deemed the vehicle abandoned and would tow it if not moved within seven days. Velez saw and removed the notice but didn't tell her mother, although she did move the van and put signs in the windows indicating it wasn't abandoned. On June 13, the city towed the van and mailed two impound notices. Before July 5, Velez tried to recover the van, but the lot denied her request because Santiago is the sole owner. Velez returned later that month with a notarized letter, but the vehicle was disposed of on July 16, 2018. Kennelly granted some wins to both sides on the question of whether the lawsuit can continue. Notably, Kennelly sided with Santiago's position that the city violated Fifth Amendment rights of vehicle owners when it sold their cars. "It cannot be said that one has notice that her car will be disposed of when the city does not follow the procedures outlined in its ordinances," Kennelly wrote. "Based on the 'additional notice' language of the ordinance, it would be reasonable for a vehicle owner to think that her car will not be disposed of until the city sends an additional notice after the first one. The court further notes that the mailed notice that Santiago received contained inaccurate information regarding how long she had to collect her vehicle before disposal." Kennelly partially rejected the city's argument Santiago lacks standing to challenge the sticker notice policy, saying Velez isn't Santiago's legal agent, nor did Velez's knowledge of the sticker impute to her mother. However, he agreed with the city that "had Velez not removed the sticker, Santiago likely would have seen it when she got into the car." He also said she lacks standing to challenge the content of the notification sticker because she said she never saw the actual sticker. He likewise said Santiago can't challenge the city's failure to provide a hearing before towing because even if that process existed, and if the sticker told owners of their right to a hearing, Santiago wouldn't have known, only Velez. Santiago also cannot pursue her unjust enrichment claim because her complaint "alleges no facts suggesting that she ever paid a fee to the City in connection with the towing and impoundment of her van," only that the city got money for selling it to United Road Towing. And because her new van hasn't been towed, she can't ask the court to declare the city's policy violates due process rights. The judge allowed the unjust enrichment claim for the second putative class, but rejected Santiago's contention that the city also violated Fourth Amendment protections against unreasonable seizure, as that "is limited to an individual's interest in retaining her property and cannot be invoked by the dispossessed owner to regain her property." Kennelly rejected Santiago's request for injunctive relief for the vehicle disposal class, saying it would be speculative as was applied to the tow class. He also refused to issue a writ of mandamus forcing the city to send additional notice of impending disposal. Kennelly dismissed the count of unjust enrichment for the tow class and Fourth Amendment violations for the disposal class. He did not dismiss the unjust enrichment or the Fifth Amendment claims for the disposal class, ordering the city to respond by April 26. In the ruling, the judge also sent the remaining counts, for which Santiago could not demonstrate standing to pursue in federal court, back to Cook County court. Santiago and the additional classes of plaintiffs are represented in the case by attorneys Jacie Zolna, Myron Cherry, Benjamin Swetland, Jeremiah Nixon and Jessica Charvin, fo the Myron Cherry firm. The city is represented by attorneys J. David Duffy and Patrick Morales-Doyle, of the Thompson Coburn firm, of Chicago; and Jennifer Zlotow and Peter Cavanaugh, of the city's Department of Law. [GN] CINEFLIX MEDIA: Opts Out of Collective Agreement in Class Suit -------------------------------------------------------------- Kelly Townsend, writing for Playback Daily, reports that Cineflix Media will not be signing a collective agreement with unions CWA Canada and IATSE following its settlement of a class action lawsuit from factual workers last year. The Montreal-based media company has opted to pay out $2.5 million to members of the class action, rather than the alternative option of paying $1 million with a collective agreement. "We have learned a great deal through this process, and we are very confident that our policies and practices surrounding factual production are consistent with the employment standards across the industry," said Glen Salzman, co-founder and co-CEO of Cineflix Media, in a statement. "We believe that our settlement decision is in the best interest of the company and its employees, and will allow Cineflix to continue to operate successfully." In September 2021, Cineflix reached a settlement with Toronto firm Cavalluzzo over a class action lawsuit that alleged Cineflix violated the Ontario Employment Standards Act by classifying workers as independent contractors instead of employees, claiming that workers were not compensated for overtime, vacation or holiday pay. If Cineflix had opted to sign the agreement, it would have been the first time a production company in Canada formed a collective agreement with factual workers. The template agreement provided by CWA Canada and IATSE had provisions such as minimum pay scales, overtime, vacation and holiday pay, as well as meal breaks and travel time. However, the outcome is considered a "win-win" for workers, according to a release from CWA Canada. "I think it could actually be the best result for all workers. Cineflix decided to pay $2.5 million to all the people in the class action, none of which hinders the Cineflix workers from organizing, unionizing, and getting a collective agreement anyway," said Anna Bourque, the representative plaintiff in the class action case. A similar class action lawsuit between factual workers and Toronto-based production company Insight Productions was filed in 2020, but was dismissed this past January due to a "legal technicality" arising from a misunderstanding of deadlines in case management meetings, according to CWA Canada. CWA Canada launched a Fairness in Factual campaign more than six years ago to lobby for better working conditions for crew members on unscripted productions. IATSE joined the campaign in 2019 and broadened its scope to provide more comprehensive coverage to factual workers. The union currently represents more than 30,000 workers in Canada, largely for scripted productions. [GN] CIRCLE K STORES: McDonald Wage-and-Hour Suit Removed to S.D. Cal. ----------------------------------------------------------------- The case styled TIFFANY MCDONALD, individually and on behalf of all others similarly situated v. CIRCLE K STORES, INC. and DOES 1 through 20, inclusive, Case No. 37-2021-00018913-CU-OE-CTL, was removed from the Superior Court for the State of California, County of San Diego, to the U.S. District Court for the Southern District of California on April 11, 2022. The Clerk of Court for the Southern District of California assigned Case No. 3:22-cv-00495-L-AGS to the proceeding. The case arises from the Defendant's alleged violations of California Labor Code and California's Business and Professions Code including failure to pay minimum wages, failure pay overtime wages, failure to provide meal periods, failure to permit rest breaks, failure to provide accurate itemized wage statements, and failure to pay all wages due upon separation of employment. Circle K Stores, Inc. is an international chain of convenience stores, headquartered in Tempe, Arizona. [BN] The Defendant is represented by: Maria C. Rodriguez, Esq. Christopher A. Braham, Esq. Ashley Attia, Esq. MCDERMOTT WILL & EMERY LLP 2049 Century Park East, Suite 3200 Los Angeles, CA 90067-3206 Telephone: (310) 277-4110 Facsimile: (310) 277-4730 E-mail: mcrodriguez@mwe.com cbraham@mwe.com aattia@mwe.com CITYWIDE SECURITY: Evans Class Suit Seeks Overtime Pay Under FLSA ----------------------------------------------------------------- EBRIANNA EVANS and DEANDRE JIGGETS, individually and on behalf of all others similarly situated v. CITYWIDE SECURITY AND PRIVATE INVESTIGATION, INC., Case No. 1:22-cv-03035 (S.D.N.Y. April 12, 2022) is a collective and class action brought by Individual and Representative Plaintiffs Ebrianna and Jiggets and all putative plaintiffs, on their own behalf and on behalf of the Proposed Collective Classes and Classes. The Plaintiffs and the putative Collective Class and Class Members were or are employed as hourly paid Security Guards by the Defendant Citywide Security in New York during the relevant Class and Collective Class Periods. All Plaintiffs were allegedly affected by an unlawful "time shaving" policy and practice, where the Defendant manipulated the actual clock in and out times of the Security Guards in order to avoid paying them an overtime premium rate for all overtime hours worked, which the Defendant knowingly suffered and permitted. Through this company-wide policy and practice, the Defendant unlawfully denied Plaintiffs overtime premiums at a rate of at least 1.5 times the regular rate for all hours worked over 40 in a week and engaged in recordkeeping practices that violated federal and/or state wage and hour laws. The Plaintiffs are all similarly situated under the Fair Labor Standards Act, 29 U.S.C. Section 216(b) and the Federal Rule of Civil Procedure 23 and have suffered the same violations pursuant to Defendant’s common policies and practices. The Collective is made up of all persons who are or have been employed by Defendant in New York as Security Guards within the period of the past three years from this action's filing date through the date of the final disposition of this action (the "Collective Period") and who were subject to Defendant’s unlawful and uniform time shaving policy and practice resulting in the failure to pay Collective Plaintiffs overtime premiums for all hours worked over 40 during the Collective Period in violation of the FLSA. Individual and Representative Plaintiff Ebrianna Evans is a former hourly Security Guard employed by Defendant CWPS from August 14, 2021 through October 28, 2021. Individual and Representative Plaintiff DeAndre Jiggets is a former hourly Security Guard employed by Defendant CWPS from March 2021 to October 2021. Defendant CWPS is a New York domestic corporation that provides security services across various sites ranging from hospitals, constructions sites, homeless shelters, and schools. The Plaintiff brings FLSA claims on behalf of herself and other employees similarly situated as authorized under 29 U.S.C. Section 216(b). The employees similarly situated in the Collective are: FLSA Overtime Collective: All persons who are or have been employed by Defendant as hourly Security Guards in New York within the period of the past three years prior to this action’s filing date through the date of the final disposition of this action who worked over 40 hours in at least one workweek during the Collective Class Period and who were subject to Defendant’s failure to pay lawful overtime premiums for all hours worked over 40 during a workweek based on the alleged uniform policies and practice.[BN] The Plaintiffs are represented by: Christopher Q. Davis, Esq. Hajar Hasani, Esq. THE LAW OFFICE OF CHRISTOPHER Q. DAVIS, PLLC 80 Broad Street, Suite 703 New York, New York 10004 Telephone: (646) 430-7930 CLEVELAND CLINIC: Dimascio Sues Over Event Specialists' Unpaid OT ----------------------------------------------------------------- BRIANA DIMASCIO, individually and on behalf of all others similarly situated, Plaintiff v. CLEVELAND CLINIC FLORIDA HEALTH SYSTEM NONPROFIT CORPORATION and IVAN BLANCO, Defendants, Case No. 0:22-cv-60734 (S.D. Fla., April 13, 2022) is a class action against the Defendants for their failure to compensate the Plaintiff and similarly situated event specialists overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. The Plaintiff has been employed by Cleveland Clinic as an event specialist since December 14, 2020. Cleveland Clinic Florida is a nonprofit health care company based in West Palm Beach, Florida. [BN] The Plaintiff is represented by: Anisley Tarragona, Esq. Jason D. Berkowitz, Esq. BT LAW GROUP, PLLC 3050 Biscayne Blvd., Suite 205 Miami, FL 33137 Telephone: (305) 507-8506 E-mail: anisley@btattorneys.com jason@btattorneys.com CLEVELAND PUBLIC: Energy Class Action Trial Scheduled for July 25 ----------------------------------------------------------------- Joe Pagonakis, writing for News5Cleveland, reports that Steven Vecker of Cleveland has been dealing with major questions about the energy adjustment charge on his Cleveland Public Power bill for years. Vecker told News 5 he's always wondered what the charge was all about but said each time he calls CPP to get a breakdown of the charges and get an explanation he's left with more questions than answers. It's a charge that is under fire in an ongoing class-action lawsuit filed nearly seven years ago, which alleges that buried in the energy adjustment charge is an environmental charge that is in violation of Cleveland city ordinance. "When I called customer service, she just sort of flubbed it off, well that's just an extra charge that we have, so what could I say," Vecker said. "I don't get it, doesn't seem right does it. When you look at my bill and then we travel down here and there's this other charge, what is it called energy adjustment charge, it's more than what I'm paying for the actual wattage or the electric." Class-action lawsuit attorney Tom Merriman, with Merriman Legal, told News 5 the case against CPP is set for a jury trial in Cuyahoga County Court on July 25. Merriman said the lawsuit claims CPP over-charged consumers some $130-million, allegedly using what the lawsuit claims are a hidden charge. The lawsuit is asking that CPP pay back millions to some 70,000 of its customers. "We've been at this for almost seven years now," Merriman said. "It's called an environmental adjustment and it's buried inside another item on your bill called an energy adjustment. So the consumer has no idea they're being charged this fee." "It's illegal, it violates city ordinance. The environmental adjustment was supposed to be about passing along the cost of complying with environmental regulations. The city has admitted none of this money has gone to comply with environmental regulation." "When you have two appellate courts that said this charge violates your own ordinance, a legit business stops the practice, Mayor Bibb has a great opportunity here to just stop charging this hidden fee to people." Cleveland Public Power responded immediately to our story and explained the energy adjustment charge is "the charge by which CPP recovers costs incurred by the purchase of electric power that CPP sells to its customers." But when News 5 issued a follow-up question concerning allegations that an environmental charge is buried with the energy adjustment charge, CPP did not deny the allegations. CPP simply issued a statement saying "Cleveland Public Power has no comment on this request as it is part of ongoing litigation." News 5 asked the same questions to the office of Cleveland Mayor Justin Bibb, but we're still waiting for a response. Cleveland Councilman Brian Kazy, who is also the Chairman of the Cleveland Utilities Committee, told News 5 CPP will be the subject of a facilities-wide evaluation this summer and said the energy adjustment charge will be part of that evaluation. Meanwhile, consumers like Steven Vecker can only hope they'll have more answers about the CPP energy adjustment charge in the coming months. "Why pay more than you have to, especially with energy costs which are gasoline, natural gas, and your groceries, we don't need any extra charges they shouldn't be charging us," Vecker said. "Let's check into this, and if we've got money coming back, let's straighten this out, we should be getting money back or change the rate on it or something, let's do it." [GN] COSTCO WHOLESALE: Fails to Properly Pay Laborers, Burian Suit Says ------------------------------------------------------------------ HEIDI BURIAN, individually and on behalf of all others similarly situated, Plaintiff v. COSTCO WHOLESALE CORPORATION, Defendant, Case No. 2:22-cv-02108 (E.D.N.Y., April 12, 2022) is a class action against the Defendant for its failure to pay timely wages and failure to pay overtime wages in violation of the New York Labor Law and the Fair Labor Standards Act. The Plaintiff was employed by the Defendant as a manual laborer in Melville, New York in or around 2013 until December 2021. Costco Wholesale Corporation is an American multinational corporation which operates a chain of membership-only big-box retail stores, with its principal place of business located in Issaquah, Washington. [BN] The Plaintiff is represented by: Brett R. Cohen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 COURIER EXPRESS: Fails to Pay Sufficient Wages under FLSA & SCPWA ----------------------------------------------------------------- CHANDEL HOFFMAN, Individually and on Behalf of All Others Similarly Situated v. COURIER EXPRESS/CHARLOTTE, INC., and COURIER EXPRESS FREIGHT, INC., Case No. 2:22-cv-01188-BHH (D.S.C., April 12, 2022) is a collective action against the Defendant for violations of the Fair Labor Standards Act and the South Carolina Payment of Wages Act. The Plaintiff seeks declaratory judgment, monetary damages, liquidated damages, costs, and a reasonable attorneys’ fee, as a result of the Defendant's policy and practice of failing to pay Plaintiff sufficient wages under the FLSA and the SCPWA. The Defendant employed Plaintiff within the three years preceding the filing of this lawsuit. Specifically, the Plaintiff worked for Defendants as a Delivery Driver from November of 2021 until January of 2022. The Plaintiff's primary duties were to deliver packages for Defendant. The Plaintiff was also required to load packages into trucks at the beginning of each workday. The Defendant owns and operates a package delivery service.[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 - Laura Edmondson, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: laura@sanfordlawfirm.com josh@sanfordlawfirm.com CREDIT UNION: Faces Lucero ERISA Class Suit Over Fiduciary Duties ----------------------------------------------------------------- BRENDA L. LUCERO, HEATHER BARTON, ILONA KOMPANIIETS and CYNTHIA HURTADO, individually and on behalf of all others similarly situated v. CREDIT UNION RETIREMENT PLAN ASSOCIATION, THE BOARD OF DIRECTORS OF THE CREDIT UNION RETIREMENT PLAN ASSOCIATION, THE BOARD OF TRUSTEES OF THE CREDIT UNION RETIREMENT PLAN ASSOCIATION and JOHN DOES 1-30, Case No. 3:22-cv-00208 (W.D. Wis., April 12, 2022) is a class action brought pursuant to the Employee Retirement Income Security Act of 1974, against the Plan's fiduciaries, which include the Credit Union Retirement Plan Association and the Board of Directors of the Credit Union Retirement Plan Association and its members during the Class Period and the Board of Trustees of the Credit Union Retirement Plan Association and its members during the Class Period. The Plaintiffs allege that during the putative Class Period, Defendants, as "fiduciaries" of the Plan, as that term is defined under ERISA. The Defendants' alleged mismanagement of the Plan, to the detriment of participants and beneficiaries, constitutes a breach of the fiduciary duty of prudence, in violation of 29 U.S.C. section 1104. Their actions were contrary to actions of a reasonable fiduciary and cost the Plan and its participants millions of dollars. The Plaintiffs have standing to bring this action on behalf of the Plan because they participated in the Plan and were injured by Defendants' unlawful conduct. CUNA is the Plan sponsor and a named fiduciary with a principal place of business being 5710 Mineral Point Road, Madison, Wisconsin. To safeguard Plan participants and beneficiaries, ERISA imposes strict fiduciary duties of loyalty and prudence upon employers and other plan fiduciaries. Fiduciaries must act "solely in the interest of the participants and beneficiaries," with the "care, skill, prudence, and diligence" that would be expected in managing a plan of similar scope.[BN] The Plaintiffs are represented by: Donald R. Reavey, Esq. Mark K. Gyandoh, Esq. Gabrielle Kelerchian, Esq. CAPOZZI ADLER, P.C. 2933 North Front Street Harrisburg, PA 17110 Telephone: (717) 233-4101 Facsimile: (717) 233-4103 E-mail: donr@capozziadler.com markg@capozziadler.com CRONOS GROUP: Rosen Law Firm Investigates Securities Claims ----------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, continues to investigate potential securities claims on behalf of shareholders of Cronos Group Inc. (NASDAQ: CRON) resulting from allegations that Cronos may have issued materially misleading business information to the investing public. SO WHAT: If you purchased Cronos securities you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. The Rosen Law firm is preparing a class action seeking recovery of investor losses. WHAT TO DO NEXT: To join the prospective class action, go to https://rosenlegal.com/submit-form/?case_id=2704 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. WHAT IS THIS ABOUT: On November 9, 2021, Cronos filed a Form 8-K with the SEC in which it disclosed that it had determined the previous day that the Company would "be required to restate its previously issued unaudited interim financial statements for the three and six months ended June 30, 2021" and that "[t]he Company's financial statements for this period should therefore no longer be relied upon." On this news, Cronos' share price dropped nearly 16%, damaging investors. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Many of these firms do not actually litigate securities class actions. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. Attorney Advertising. Prior results do not guarantee a similar outcome. Contacts Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] CYTODYN INC: Files Bid to Dismiss Securities Class Suit in Wash. ---------------------------------------------------------------- CytoDyn Inc. disclosed in its Form 10-Q Report for the quarterly period ended February 28, 2022, filed with the Securities and Exchange Commission on April 11, 2022, that on February 25, 2022, it filed a motion to dismiss an amended class action complaint filed against it and certain of its current and former officers, which alleges, among other things, that they made false or misleading statements concerning the safety and efficacy of leronlimab as a potential treatment for COVID-19. On March 17, 2021, a stockholder filed this putative class-action lawsuit in the U.S. District Court for the Western District of Washington against the Company and certain current and former officers. The complaint generally alleges the defendants made false and misleading statements regarding the viability of leronlimab as a potential treatment for COVID-19. On April 9, 2021, a second stockholder filed a similar putative class action lawsuit in the same court, which the plaintiff voluntarily dismissed without prejudice on July 23, 2021. On August 9, 2021, the court appointed lead plaintiffs for the March 17, 2021 lawsuit. On December 21, 2021, lead plaintiffs filed an amended complaint, which is brought on behalf of an alleged class of those who purchased the Company’s common stock between March 27, 2020 and May 17, 2021. The amended complaint generally alleges that the Company and certain current and former officers violated Sections 10(b) and/or 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by making purportedly false or misleading statements concerning, among other things, the safety and efficacy of leronlimab as a potential treatment for COVID-19, the Company’s CD10 and CD12 clinical trials, and its HIV BLA. The amended complaint also alleges that the individual defendants violated Section 20A of the Exchange Act by selling shares of the Company’s common stock purportedly while in possession of material nonpublic information. The amended complaint seeks, among other relief, a ruling that the case may proceed as a class action and unspecified damages and attorneys’ fees and costs. On February 25, 2022, the defendants filed a motion to dismiss the amended complaint. The Company and the individual defendants deny all allegations of wrongdoing in the complaint and intend to vigorously defend the matter. Since this case is in an early stage where the number of plaintiffs is not known, and the claims do not specify an amount of damages, the Company is unable to predict the ultimate outcome of the lawsuit and cannot reasonably estimate the potential loss or range of loss the Company may incur. CytoDyn, Inc. is a clinical-stage biotechnology company, which engages in the development of innovative treatments for multiple therapeutic indications based on leronlimab. Its product include HIV, Cancer, graft-versus-host disease (GVHD), and COVID-19. The company was founded by Allen D. Allen on May 2, 2002 and is headquartered in Vancouver, WA. DAIRY FARMERS: Dairy Farmers File Antitrust Class Action -------------------------------------------------------- Wilson Fay, writing for Law Street, reports that on April 4, a group of dairy farmers filed a class action lawsuit in the District of New Mexico against Dairy Farmers of America, Inc. (DFA), Select Milk Producers, Inc. (Select Milk) and Greater Southwest Agency, Inc. (GSA) alleging violations of the Sherman Antitrust Act. According to the complaint, the named plaintiffs, Othart Dairy Farms, LLC, Pareo Farm, Inc., Pareo Farm II, Inc., Desertland Dairy, LLC, Del Oro Dairy, LLC, Bright Star Dairy, LLC and Sunset Dairy, LLC, marketed their raw Grade A milk through the dairy cooperative defendants. The complaint also states that DFA is a Kansas not-for-profit organization and Select Milk is a New Mexico not-for-profit marketing cooperative association and both are organized as member-owned, non-profit dairy cooperatives, obligated to operate for the benefit of their farmer-members. The complaint purports that together DFA and Select Milk control at least 75% of the Southwest dairy market. Additionally, the complaint states that defendant GSA is a Texas corporation that was formed by the three dairy cooperatives that supply nearly 100% of all milk marketed in the Southwest through cooperatives, DFA, Select Milk and Lone Star Milk Producers, to market dairy products in the southwest. The complaint also states that GSA shares its mailing address with DFA's Southwest Area office. Further, the complaint states that through the dairy cooperative process the dairy farmer members are obligated to deliver all of their milk to the cooperative to market on their behalf and in return the cooperative must process and market the milk to obtain the best price for the product. The complaint purports that the vast majority of the milk marketed in the southwest, approximately 85-90%, is marketed through a cooperative. Further, the complaint notes that cooperatives like DFA and Select Milk financially benefit from reducing raw milk prices paid to farmers while maintaining the supply of as much raw milk volume as possible. In fact, the plaintiffs argue that the defendants have conspired in violation of the Sherman Act to depress the price dairy farmers receive in exchange for their raw milk that is delivered to the defendants. Specifically, the plaintiffs allege that DFA and Select Milk conspired and colluded through GSA to fix and depress the prices paid to Southwestern dairy farmers for the raw Grade A milk they produced beginning in at least 2015. The plaintiffs argue that as a result of the defendants' unlawful conduct, the plaintiffs were artificially underpaid for the raw Grade A milk they produced. Accordingly, the plaintiffs brought the present case alleging violations of Section 1 of the Sherman Antitrust Act and seeking class certification, declaratory and injunctive relief, damages, pre- and post-judgment interest, attorney's fees and costs. The plaintiffs are represented by Peifer, Hanson, Mullins & Baker, P.A., Lockridge Grindal Nauen P.L.L.P. and Hagens Berman Sobol Shapiro LLP. [GN] DAIRY FARMERS: New Mexico Dairies File Antitrust Class Action ------------------------------------------------------------- Lisa Dunlap, writing for Rosewell Daily Record, reports that New Mexico dairies and cooperatives are embroiled in a federal class action antitrust lawsuit that accuses two dairy cooperatives of "artificially depressing" prices for at least seven years, causing many dairy farmers to experience severe financial distress and even bankruptcy as a result. "Defendants' illegal conspiracy has substantially restrained competition, forcing farmers to increasingly join DFA (Dairy Farmers of America) or Select Milk. In so doing, Defendants have depressed and fixed at artificially low prices the prices dairy farmers receive for the raw Grade A milk they produce," states the antitrust complaint filed April 4 in the U.S. District Court of New Mexico. Although the lawsuit is brought on behalf of all dairy producers in the Southwest, the named plaintiffs include Othart Farms of Veguita, Desertland Dairy LLC of Vado, and three dairies in Mesquite: Del Oro Dairy LLC, Bright Star Dairy LLC and Sunset Dairy LLC. Pareo Farm Inc. and Pareo Farm II Inc. of Veguita sold their assets and closed down in 2021. There are three named defendants. They are Dairy Farmers of America Inc., the largest dairy cooperative in the United States with about 11,500 members nationwide and 252 in the southwestern U.S.; Select Milk Producers Inc. based in Artesia, New Mexico, that has about 112 members, according to its website; and the marketing entity Greater Southwest Agency, which includes Dairy Farmers and Select Milk as members. Other alleged "co-conspirators" are named in the suit as well. Together, Dairy Farmers of America and Select Milk Producers control 85% to 90% of all milk sales in the southwest region, the lawsuit states. That region is defined as all of New Mexico, most of Texas, the eastern portion of Arizona, the Oklahoma panhandle and southwestern Kansas. A jury trial has been requested, and the plaintiffs are asking damages, attorney fees and interest, along with a finding that the defendants violated antitrust laws. Phone messages left with representatives of the companies had not been returned. The lawsuit gives a detailed explanation of the dairy industry and its complicated pricing mechanisms. While the federal government sets allowable pricing ceilings on a weekly basis, according to the lawsuit, cooperatives are not required to pay those amounts. In fact, according to the suit, because the cooperatives often control other businesses, such as cheese or food manufacturing companies, they have an incentive to pay as little for milk as they can. The cooperatives also can affect pricing in other ways, including by paying less for milk after dairies have reached ceilings on sales established by the cooperatives and by choosing which purposes the milk will be used for, with some purposes paying less than others. Furthermore, the lawsuit contends, dairies or groups of dairies that try to leave the cooperatives or sell separately from them have faced retaliation or find that they cannot be competitive because the cooperatives already have contracted with all the purchasers in the area. Although the lawyers contend that pricing information is not available for Select Milk Producers, they stated in the lawsuit that Dairy Farmers of America paid an annual average of anywhere from $10.50 per hundredweight to $5.08 per hundredweight less to dairies from 2015 to 2020 than the price they received for selling the milk, with the average deficit for those years being $6.27 per hundredweight. Dairy Farmers of America also has decreased the percentage of earnings it shares with members, the lawsuit states. In 2017, it distributed 25% of its earnings before interest, taxes and depreciation, $40 million. In 2020, the cooperative shared 8.9%, $46 million. The complaint calls the conduct of Dairy Farmers of America "recidivist," saying the cooperative has paid large settlements on other antitrust lawsuits. The lawsuit states that Dairy Farmers joined with other defendants in a $158.6 million settlement on two class action lawsuits in 2013, and it paid $50 million for another settlement that same year. [GN] DIAGEO PLC: Settles US Class Action Over Guinness Brew Origin ------------------------------------------------------------- independent.ie reports that Diageo has settled a long-running US class action over the marketing of a Guinness product in the US after consumers complained it looked like it was made in Dublin, despite being brewed in Canada. The class action between lead plaintiff Kieran O'Hara and Diageo started in 2015 and was recently resolved following mediation. In his court complaint from 2015, O'Hara alleged the outer packaging of Guinness Extra Stout sold in stores at the time could lead consumers to believe it was brewed in the St James' Gate brewery in Dublin. The complaint said Guinness Extra Stout was brewed in New Brunswick, Canada, with the location noted in small print on the side of the bottles. He said he bought the product at a "premium price" because he thought it was from Dublin, claiming he and other consumers had been damaged. The Salem News said around $770,000 (EUR706,000) was set aside to reimburse customers. The rest will go to the lawyers, $1.3m in legal fees and costs. Diageo did not admit liability or wrongdoing. "We are pleased both sides could come together to resolve this matter," said a Diageo spokesperson. Lawyer Kevin McCullough, who represented O'Hara and others in the class action, told US media that the two sides sat down with a mediator and worked out the settlement. McCullough said at least 23,000 people submitted claims before the deadline last year.[GN] DOCTOR'S BEST: Settles Glucosamine False Advertising Class Action ----------------------------------------------------------------- Top Class Actions reports that Doctor's Best agreed to settle class action claims it falsely advertises its glucosamine supplements as containing glucosamine suflate, and Class Members can claim up to $25 with no proof of purchase. The settlement benefits consumers who purchased certain Doctor's Best glucosamine supplements between July 22, 2016, and Feb. 28, 2022. Products included in the settlement are: -- Doctor's Best Glucosamine Sulfate 750mg -- Vegan Glucosamine Sulfate 750mg -- Synergistic Glucosamine MSM -- Glucosamine Chondroitin MSM -- Vegan Glucosamine Chondroitin MSM -- and Glucosamine Chondroitin MSM + Hyaluronic Acid Glucosamine supplements are commonly used to help with painful conditions such as arthritis, according to the Mayo Clinic. Not all glucosamine supplements are made equal, with glucosamine sulfate being the premier form of glucosamine based on clinical research. Doctor's Best is one brand that offers glucosamine supplements to consumers to help with these conditions. Although Doctor's Best is a widely used brand of glucosamine supplement, a class action lawsuit against the company claims the brand intentionally misrepresents its supplements as containing glucosamine sulfate. In reality, the supplements allegedly contain less effective ingredients including glucosamine hydrochloride and potassium sulfate. Plaintiffs say that they paid a higher price for Doctor's Best glucosamine supplements based on advertising that the products contained glucosamine sulfate. Because these representations were false, consumers overpaid for the supplements and suffered from financial injury, the class action lawsuit contends. The Doctor's Best class action lawsuit sought relief under various consumer protection laws including the California Unfair Competition Law, California' False Advertising Law, and the California Consumer Legal Remedies Act. Doctor's Best hasn't admitted any wrongdoing but agreed to resolve these allegations with a class action settlement. Under the terms of the deal, Class Members can recover partial refunds for purchases of Doctor's Best glucosamine supplements. With proof of purchase such as receipts, Class Members can collect a 60 percent refund for each purchased product, limited to 12 products claimed per household. Without any proof of purchase, Class Members can still recover a settlement payment of $5 per purchased product, limited to five products per household and a maximum payment of $25. The settlement provides more than just monetary benefits. Under the settlement terms, Doctor's Best will not represent that its supplements contain glucosamine sulfate on any labels, marketing, or advertising material. The company will follow these requirements for three years. The deadline for exclusion and objection is June 10, 2022. The final approval hearing for the settlement is scheduled for July 8, 2022. In order to receive benefits from the settlement, Class Members must submit a valid claim form by June 14, 2022. Who's Eligible The settlement benefits consumers who purchased certain Doctor's Best glucosamine supplements between July 22, 2016, and Feb. 28, 2022. Products included in the settlement are: Doctor's Best Glucosamine Sulfate 750mg Vegan Glucosamine Sulfate 750mg Synergistic Glucosamine MSM Glucosamine Chondroitin MSM Vegan Glucosamine Chondroitin MSM and Glucosamine Chondroitin MSM + Hyaluronic Acid Potential Award Up to $25 Proof of Purchase If you have proof of purchase, send it with the claim form. Claim Form NOTE: If you do not qualify for this settlement do NOT file a claim. Remember: you are submitting your claim under penalty of perjury. You are also harming other eligible Class Members by submitting a fraudulent claim. If you're unsure if you qualify, please read the FAQ section of the Settlement Administrator's website to ensure you meet all standards (Top Class Actions is not a Settlement Administrator). If you don't qualify for this settlement, check out our database of other open class action settlements you may be eligible for. Claim Form Deadline 06/14/2022 Case Name Sharae Casey v. Doctor's Best Inc., Case No. 8:20-cv-01325-JLS-JDE, in the U.S. District Court for the Central District of California Final Hearing 06/08/2022 Settlement Website DoctorsBestGlucosamineSettlement.com Claims Administrator Sharae Casey v. Doctor's Best, Inc. c/o Kroll Settlement Administration, LLC PO Box 225391 New York, NY 10150-5391 833-620-3614 Class Counsel Jonathan M. Rotter Esq. Danielle L. Manning Esq. GLANCY PRONGAY & MURRAY LLP Carl L. Stine Esq. Matthew Insley-Pruitt Esq. PHILIP M. BLACK WOLF POPPER LLP Defense Counsel Ashley Simonsen Esq. Cortlin Lannin Esq. COVINGTON & BURLING LLP [GN] DRAKES: Settles Underpayment Class Action for $2 Million -------------------------------------------------------- Robert Stockdill, writing for Inside FMCG, reports that Drakes, the independent supermarket business, has reached a settlement with the law firm leading a class action on behalf of staff allegedly underpaid between 2014 and 2020. Subject to approval by the Federal Court, Drakes will pay $1.455 million to current and former managers who allege underpayment, along with a further $590,000 in penalties and interest. The liability may rise further with eligible staff allowed to register claims up until May 6. The settlement resulted from mediation between the law firm Adero Law and Drakes that took place late last year. Adero Law is running multiple class-action suits against supermarkets and other retailers, including a massive case against Coles and supermarkets that, together with Fair Work Ombudsman litigation, could run to almost $500 million. That claim impacts 28,000 staff of the two companies and is set to be heard over a seven-week Federal Court hearing in June next year. Last year, Woolworths agreed to a $50 million settlement over one case, but that was suspended and later abandoned after the court said it would not be approved -- citing a concurrent case brought by the FWO. When Adero Law launched the class action against Drakes two years ago it estimated about 1000 current and former staff of the retailer could be owed underpayments totalling as much as $20 million. Adero Law reached a settlement agreement with another independent grocery chain, Romeo's Retail Group, last December. Both settlements will be ruled on by the Federal Cout on June 14. Meanwhile, the firm is pursuing a similar action against convenience store operator OTR. [GN] ELANCO ANIMAL: Seresto Flea Collar Class Actions Pending -------------------------------------------------------- Abraham Jewett, writing for Top Class Actions, reports that if there is one thing consumers are protective of, it's their pets. With April being National Canine Fitness Month, the health of our four-legged furry friends is once again coming first. Consumers are certainly not afraid to hold pet companies accountable, either, with class action lawsuits recently filed over allegations of dangerous collars and products and falsely advertised dog food and shampoo ingredients. A number of recalls have also been initiated recently over contaminated dog food. With that in mind, Top Class Actions is looking at the pet products, which, according to recent class action lawsuits and recalls, make them the worst on the market. Seresto Flea Collar Connected to Thousands of Pet Deaths Seresto first came under fire in March 2021 after a Congressional Subcommittee report linked its popular Seresto flea & tick collars to nearly 1,700 pet deaths and more than 75,000 incidences of harm since they were introduced in 2012 by former owner Bayer. The subcommittee's findings came from documents disclosed by the Environmental Protection Agency (EPA), which revealed the flea & tick collars were also linked to almost 1,000 incidents of causing human harm. Now owned by Elanco Animal Health, Seresto flea & tick collars work by continually releasing low amounts of pesticide onto its wearer for eight months to kill the insects and arachnids. A class action lawsuit filed by a pet owner in May 2021; however, claims the pesticides released in the Seresto collars aren't just killing ticks and fleas but harming pets and their owners, as well. The class action lawsuit references the EPA's findings while arguing the pesticides in the collar can cause pets to suffer from rash, seizure or death. Another class action lawsuit was filed in April 2021, targeting both Bayer and Elanco with claims the companies knew when selling the collars that it could kill the pets who wore them. Purina, Blue Buffalo, Simply Nourish Dog Foods Have All Faced False Advertising Claims Class action lawsuits were also filed last year against dog food manufacturers Nestle Purina and Blue Buffalo over claims the companies falsely advertised the contents of their pet foods. In September 2021, a group of three pet owners claimed Nestle Purina misrepresented some of its limited-ingredient dog foods as being free of grain and soy. Pet owners argued the dog food products, which included Purina Pro Plan and Purina Beneful brands, actually contained wheat or soy despite the representations. Blue Buffalo, meanwhile, was accused by a class of Canadian pet owners in April 2021 of falsely advertising that its pet foods are healthier than other brands. Canadian pet owners argued there was "no scientific basis" to Blue Buffalo's "True Blue Promise," which states its pet foods contain no corn, poultry byproduct meal, wheat, soy or artificial preservatives, colors or flavors. Simply Nourish was also accused of false marketing when, in March 2020, a pet owner claimed its pet food products were not actually "natural" as the company advertised. The pet owner argued that, despite being labeled as "natural," Simply Nourish pet food actually contains artificial ingredients, including folic acid and niacin, among other things. Several of the claims against Simply Nourish were later dismissed in January 2021. Fromm, Freshpet, Sunshine Mills, Hill's Pet Nutrition Dog Food Recalls A number of dog food recalls were initiated last year over contamination concerns. Most recently, Nationwide voluntarily recalled in September four of its Fromm Four-Star Nutritional Shredded canned dog foods over concerns they contained elevated levels of Vitamin D. The recall ultimately took 5,500 cases of Nationwide's Fromm Four-Star Nutritional Shredded canned dog foods off the shelves. Freshpet also initiated a recall last year, when, in June, it recalled a single lot of its Freshpet Select Small Dog Bite Size Beef & Egg Recipe Dog Food over concerns it was contaminated with salmonella. The company claimed it meant to destroy the recalled product before it was originally sent out, but that some packages were "inadvertently shipped" to retailers anyway. That same month, salmonella contamination concerns led Sunshine Mills to initiate a voluntary recall for several of its dog food products, including Sportsman's Pride, Sprout Sporting, Intimidator and FRM Gold Select dog foods. Sunshine Mills initiated the recall after a sample of its Sprout Sporting dog food tested positive for the dangerous bacteria. Salmonella contamination, along with listeria monocytogenes, also led Bravo Packing Inc. to conduct a recall for several of its dog food and bone products in March 2021. Going back to 2019, pet owners came together to discuss how they were affected by a Hill's Pet Nutrition recall done on account of elevated Vitamin D levels in several of the companies Prescription Diet and Science Diet dog food products. Aldi, Burt's Bees Face Recalls, Class Actions Over Pet Products In January, Aldi announced it was voluntarily recalling its Pure Being Cat Advent Calendars and Pure Being Dog Advent Calendars after determining they presented a choking hazard. Aldi said it was initiating the recall out of an "abundance of caution" while reassuring consumers that none of its other products were affected. In June 2021, meanwhile, a class action lawsuit was filed against Burt's Bees over claims the company falsely advertised its dog shampoo as being "99.7 percent natural." Pet owners claim that, rather than being nearly entirely natural, Burt's Bees dog shampoos are mostly made up of synthetic ingredients, including coco betaine. [GN] ELLUME USA: Faces Class Action Over Recalled COVID-19 Tests ----------------------------------------------------------- Rachel Raphael, Esq., and Jessica Gilbert, Esq., of Crowell, report that class actions following a product recall often focus on what the company allegedly knew before its products were taken off the market. But this is not always the case. A company can also come under fire for its actions after the recall and, specifically, what recourse it offers to consumers of recalled products. On October 5, 2021, the U.S. Food and Drug Administration ("FDA") alerted the public of a manufacturing issue with certain lots of Ellume USA LLC's ("Ellume") COVID-19 Home Tests that had could lead to false positive results, and several weeks later, the FDA announced a Class I recall of these tests based on the higher-than-acceptable false positive test result. When it comes to COVID-19, a false positive could lead to delayed diagnosis and treatment of the actual cause of illness; further spread of COVID 19 when presumed positive people are grouped based on false test results; unnecessary COVID-19 treatment from health care providers, such as antiviral treatment, convalescent plasma, or monoclonal antibody treatment, which can result in side effects; disregard for the recommended precautions against COVID-19, including vaccination; and isolation, monitoring household or close contacts for symptoms, limiting contact with family or friends, and missing school or work. Now, nearly six months after the FDA recall, Ellume is facing a class action in the U.S. District Court for the District of Maryland. On March 22, 2022, two consumers from Indiana and Ohio filed Karen Kerschen et al., v. Ellume USA LLC, 1:22-cv-00704 (D. Md.), alleging that Ellume refused to refund purchasers of the recalled COVID tests. In the complaint, plaintiffs allege they were personally affected by false positive test results, which led them to cancel, change, and/or delay travel plans, and incur costs for additional tests. Plaintiffs assert claims for unjust enrichment on behalf of themselves and a nationwide class of purchasers of the Ellume COVID tests recalled in October and November 2021. In the alternative, plaintiffs seek to represent two-state specific classes of Indiana and Ohio purchasers. Ellume is not the only company facing scrutiny for its actions following an FDA recall. Over nine months ago, Philips Respironics ("Philips") initiated a recall of ventilators, continuous positive airway pressure (CPAP) and bilevel positive airway pressure (BiPAP) machines. And on March 10, 2022, the FDA sent Philips a 518(a) Notification Order mandating that Philips improve its communication about the recall and the serious risk posed by the PE-PUR sound abatement foam used in the recalled products. The FDA's Order states that it continues to hear from patients and medical equipment suppliers who are unaware of the recall and/or have received insufficient information about next steps. Among other things, Philips has 45 days to (1) notify all device users, durable medical equipment suppliers, importers, distributors, retailers, and health professionals who prescribe the device about the potential health risks of using these sleep apnea and ventilator machines, (2) display this information prominently on its website, and (3) provide a link for healthcare providers and registrants to access available testing results and findings. According to the Notification Order, failure to comply is a "prohibited act" under the Federal Food, Drug, and Cosmetic Act, which could result in fines and penalties. And if the FDA determines that its Notification Order is not sufficient, it is also entitled to take legal action though seizure, injunction or prosecution, or through regulation of, or regulations or bans of the sale, distribution, or use of the recalled products. [GN] EMBARK TECHNOLOGY: Gainey McKenna Reminds of May 31 Deadline ------------------------------------------------------------ Gainey McKenna & Egleston on April 5 disclosed that a class action lawsuit has been filed against Embark Technology, Inc. f/k/a Northern Genesis Acquisition Corp. II (NASDAQ: EMBK) (NASDAQ: EMBKW) (NASDAQ: NGAB) (NASDAQ: NGAB.U) (NASDAQ: NGAB.WS) ("Embark" or the "Company") in the United States District Court for the Northern District of California on behalf of investors who purchased Embark stock between January 12, 2021 and January 5, 2022, inclusive (the "Class Period"). The Complaint alleges that Defendants made false and/or misleading statements and/or failed to disclose that: (1) Embark had performed inadequate due diligence into Embark Trucks Inc. ("Legacy Embark"); (2) Legacy Embark and the Company, following the November 2021 merger of Legacy Embark and Northern Genesis Acquisition Corp. II (the "Business Combination"), held no patents and an insignificant number of test trucks; (3) accordingly, Embark had overstated its operational and technological capabilities; (4) as a result of all the foregoing, Embark had overstated the business and financial prospects of the Company post-Business Combination; and (5) as a result, Defendants' public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. Investors who purchased or otherwise acquired shares of Embark should contact the Firm prior to the May 31, 2022 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com. Please visit our website at http://www.gme-law.comfor more information about the firm. [GN] EMBARK TECHNOLOGY: Glancy Prongay Reminds of May 31 Deadline ------------------------------------------------------------ Glancy Prongay & Murray LLP ("GPM"), a leading national shareholder rights law firm, on April 11 disclosed that a class action lawsuit has been filed on behalf of investors who purchased or otherwise acquired Embark Technology, Inc. f/k/a Northern Genesis Acquisition Corp. II ("Embark" or the "Company") (NASDAQ: EMBK) securities between January 12, 2021 and January 5, 2022, inclusive (the "Class Period"). Embark investors have until May 31, 2022 to file a lead plaintiff motion. If you suffered a loss on your Embark investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at www.glancylaw.com/cases/embark-technology-inc/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com to learn more about your rights. On November 10, 2021, Northern Genesis Acquisition Corp. II, a special purpose acquisition company, combined with Embark Trucks Inc. ("Legacy Embark") and the combined entity was renamed Embark Technology, Inc. (the "Business Combination"). On January 6, 2022, The Bear Cave published a report which alleged, among other things, that Embark "appears to lack true economic substance" and that it's "current evaluation appears to be based on puffery rather than actual substance." The report claimed that the Company "holds no patents, has only a dozen or so test trucks, and may be more bark than bite." On this news, Embark's stock fell $1.37, or 16.75%, to close at $6.81 per share on January 6, 2022, thereby injuring investors. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors that: (1) the Company had performed inadequate due diligence into Legacy Embark; (2) Legacy Embark and the Company following the Business Combination held no patents and an insignificant amount of test trucks; (3) accordingly, the Company had overstated its operational and technological capabilities; (4) as a result of all the foregoing, the Company had overstated the business and financial prospects of the Company post-Business Combination; and (5) as a result, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis at all relevant times. If you purchased or otherwise acquired Embark securities during the Class Period, you may move the Court no later than May 31, 2022 to ask the Court to appoint you as lead plaintiff. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts Glancy Prongay & Murray LLP, Los Angeles Charles H. Linehan, 310-201-9150 or 888-773-9224 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 www.glancylaw.com shareholders@glancylaw.com [GN] EMBARK TECHNOLOGY: Robbins Geller Reminds of May 31 Deadline ------------------------------------------------------------ The law firm of Robbins Geller Rudman & Dowd LLP on April 10 disclosed that purchasers or acquirers of Embark Technology, Inc. (NASDAQ: EMBK; EMBKW) f/k/a Northern Genesis Acquisition Corp. II (NYSE: NGAB.U, NGAB, and NGAB WS) securities between January 12, 2021 and January 5, 2022, both dates inclusive (the "Class Period") have until May 31, 2022 to seek appointment as lead plaintiff in Hardy v. Embark Technology, Inc. f/k/a Northern Genesis Acquisition Corp. II, No. 22-cv-02090 (N.D. Cal.). Commenced on April 1, 2022, the Embark class action lawsuit charges Embark as well as certain of its top executive officers with violations of the Securities Exchange Act of 1934. If you suffered significant losses and wish to serve as lead plaintiff of the Embark class action lawsuit, please provide your information by clicking here. You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the Embark class action lawsuit must be filed with the court no later than May 31, 2022. CASE ALLEGATIONS: Embark develops self-driving software solutions for the trucking industry in the United States. Embark, originally named Northern Genesis Acquisition Corp. II, was a special purpose acquisition company ("SPAC" or blank check company). On November 10, 2021, Embark merged with Embark Trucks Inc., a Delaware corporation ("Legacy Embark"), pursuant to which Embark changed its name to "Embark Technology, Inc." (the "Business Combination"). The Embark class action lawsuit alleges that, throughout the Class Period, defendants made false and misleading statements and failed to disclose that: (i) Embark had performed inadequate due diligence into Legacy Embark; (ii) Legacy Embark and Embark following the Business Combination held no patents and an insignificant amount of test trucks; (iii) accordingly, Embark had overstated its operational and technological capabilities; (iv) as a result of all the foregoing, Embark had overstated the business and financial prospects of Embark post-Business Combination; and (v) as a result, Embark public statements were materially false and misleading at all relevant times. On January 6, 2022, The Bear Cave published a research report alleging, among other things, "that Embark appears to lack true economic substance" and that its "current evaluation appears to be based on puffery rather than actual substance," noting that "[t]he company holds no patents, has only a dozen or so test trucks, and may be more bark than bite." On this news, Embark's share price declined by more than 16%, damaging investors. Robbins Geller has launched a dedicated SPAC Task Force to protect investors in blank check companies and seek redress for corporate malfeasance. Comprised of experienced litigators, investigators, and forensic accountants, the SPAC Task Force is dedicated to rooting out and prosecuting fraud on behalf of injured SPAC investors. The rise in blank check financing poses unique risks to investors. Robbins Geller's SPAC Task Force represents the vanguard of ensuring integrity, honesty, and justice in this rapidly developing investment arena. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Embark securities during the Class Period to seek appointment as lead plaintiff in the Embark class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the class action lawsuit. An investor's ability to share in any potential future recovery of the class action lawsuit is not dependent upon serving as lead plaintiff. ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: Robbins Geller Rudman & Dowd LLP is one of the world's leading complex class action firms representing plaintiffs in securities fraud cases. The Firm is ranked #1 on the 2021 ISS Securities Class Action Services Top 50 Report for recovering nearly $2 billion for investors last year alone – more than triple the amount recovered by any other plaintiffs' firm. With 200 lawyers in 9 offices, Robbins Geller's attorneys have obtained many of the largest securities class action recoveries in history, including the largest securities class action recovery ever – $7.2 billion – in In re Enron Corp. Sec. Litig. Please visit http://www.rgrdlaw.comfor more information. Attorney advertising. Past results do not guarantee future outcomes. Services may be performed by attorneys in any of our offices. Contact: Robbins Geller Rudman & Dowd LLP 655 W. Broadway, San Diego, CA 92101 J.C. Sanchez, 800-449-4900 jsanchez@rgrdlaw.com [GN] EVENTIDE CREDIT: Court Denies Bid to Dismiss Duggan Class Suit -------------------------------------------------------------- In the case, DANA DUGGAN, individually and on behalf of persons similarly situated, Plaintiff v. MATT MARTORELLO and EVENTIDE CREDIT ACQUISITIONS, LLC, Defendants, Civil Action No. 18-12277-JGD (D. Mass.), Magistrate Judge Judith Gail Dein of the U.S. District Court for the District of Massachusetts denied the Defendants' Motion to Dismiss Under Federal Rule of Civil Procedure 19. I. Background The lawsuit is a putative class action in which the Plaintiff Duggan claims that the Defendants Martorello and his company, Eventide, engaged in an internet-based predatory lending scheme in which they charged Duggan and other consumers unconscionably high interest rates, often exceeding 500%, for short-term loans. According to Duggan, Martorello and Eventide sought to evade state and federal laws prohibiting usurious lending practices by partnering with the Lac Vieux Desert Band of Lake Superior Chippewa Indians ("LVD" or the "Tribe") to set up a lending entity. Under this so-called "rent-a-tribe" scheme, LVD, through a company known as Big Picture Loans, LLC, allegedly acted as the nominal lender while Martorello and Eventide operated and exercised actual control over the lending business under the cloak of the Tribe's sovereign immunity. Duggan claims that this arrangement enabled the Defendants to take advantage of the privileges and immunities available to Native American tribes to carry out their fraudulent enterprise and enrich themselves at the expense of borrowers. By her Second Amended Class Action Complaint, Duggan has asserted claims against Martorello and Eventide for violations of Massachusetts lending, licensing and consumer protection laws, violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sections 1961, et seq. ("RICO"), unjust enrichment and declaratory judgment. Additionally, Duggan is seeking to certify a class and a subclass of similarly situated borrowers residing in Massachusetts and in other states around the country. The matter is before the Court on the Defendants' Motion to Dismiss Under Federal Rule of Civil Procedure 19. By their motion, the Defendants argue that LVD, Big Picture Loans and Ascension Technologies, LLC, an affiliate of Big Picture Loans, are necessary and indispensable parties to the action pursuant to Rule 19 of the Federal Rules of Civil Procedure. They further argue that LVD, Big Picture Loans and Ascension (collectively, the "Tribal Entities") cannot be joined because they are arms of the Tribe who are protected from suit under the doctrine of sovereign immunity, and that the inability to join indispensable parties warrants the dismissal of the case. II. Analysis The Defendants have moved to dismiss Duggan's claims, pursuant to Fed. R. Civ. P. 19, on the grounds that the Tribal Entities "are necessary and indispensable parties to the action, but cannot be joined due to their sovereign immunity." "Rule 19 addresses situations where a lawsuit is proceeding without a party whose interests are central to the suit." It "provides for joinder of required parties when feasible, Fed. R. Civ. P. 19(a), and for dismissal of suits when joinder of a required party is not feasible and that party is indispensable, Fed. R. Civ. P. 19(b)." In determining whether a party is required and indispensable under Rule 19, the court is expected "to make pragmatic, practical judgments that are heavily influenced by the facts" of the specific case. As Rule 19(a) provides in relevant part: (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. Fed. R. Civ. P. 19(a). The party raising a Rule 19 defense has the burden "to show that the absent party is needed for a just adjudication" of the case. The first question to be addressed under Rule 19(a) is whether the Court can provide the existing parties with "complete relief" in the absence of the Tribal Entities. The Defendants do not seriously dispute that the Court can do so. Therefore, Judge Dein turns to Fed. R. Civ. P. 19(a)(1)(B) and its two subparts. Judge Dein finds that where a party is aware of an action and chooses not to claim an interest, the district court does not err by holding that joinder is unnecessary." The Tribal Entities' settlement "is the best evidence that their absence would not impair or impede their ability to protect their interests." In addition to the fact that the Tribal Entities chose to settle Duggan's claims rather than remain in the case and defend Duggan's challenge with respect to the Loan Agreements, "this is not an action to set aside a contract or for breach of contract." The Defendants have not shown that the Tribal Entities should be joined on this basis. The Defendants also argue that the Tribe is a necessary party because proceeding in its absence will impair its ability to protect its sovereign and economic interests. Thus, they assert that "adjudicating the validity of tribal choice of law and forum selection provisions without the Tribe will impair its sovereign interests in making and enforcing its laws." They also contend that the Tribe's economic interest in the continued operations of Big Picture Loans' lending operations, and the interest in avoiding a judgment that would negatively impact its lending business, further supports its status as a necessary party in the case. Judge Dein finds these arguments unpersuasive. She holds that the Tribal Entities' decision to settle Duggan's claims against them, instead of remaining in the case and defending those claims on the grounds of sovereign immunity, defeats the Defendants' argument that litigating without them will impair or impede those parties' interests. As the District Court stated in Smith v. Martorello, No. 3:18cv-1651-AC, 2021 WL 1257941, at *1 (D. Or. Jan. 5, 2021), "it is not for Martorello or Eventide to decide what infringes on a Tribe's sovereign immunity, when the Tribe and its affiliated entities have not elected to rely on that immunity." The same holds true for the Tribe's economic interests. Accordingly, the Defendants have not shown that the Tribal Entities are necessary or required parties under Fed. R. Civ. P. 19(a), and their motion to dismiss under Rule 19 must be denied. III. Conclusion Judge Dein concludes that the Tribal Entities are no strangers to the litigation. Either they or their members were previously joined as defendants in the case but were dismissed voluntarily following a settlement with the Plaintiff. Judge Dein finds that as a result, and for the additional reasons she described, the Tribal Entities cannot be deemed necessary or indispensable parties to the action under Rule 19. Accordingly, the Defendants' motion to dismiss is denied. A full-text copy of the Court's March 30, 2022 Memorandum of Decision & Order is available at https://tinyurl.com/8xfurn4m from Leagle.com. EVERBRIDGE INC: Faruqi & Faruqi Investigates Potential Claims ------------------------------------------------------------- Faruqi & Faruqi, LLP, a leading national securities law firm, is investigating potential claims against Everbridge, Inc. ("Everbridge" or the "Company") (NASDAQ: EVBG) and reminds investors of the June 3, 2022 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. If you suffered losses exceeding $250,000 investing in Everbridge stock or options between November 4, 2019 and February 24, 2022 and would like to discuss your legal rights, call Faruqi & Faruqi partner Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310). You may also click here for additional information: www.faruqilaw.com/EVBG. There is no cost or obligation to you. Faruqi & Faruqi is a leading minority and Woman-owned national securities law firm with offices in New York, Pennsylvania, California and Georgia. As detailed below, the lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and/or misleading statements and/or failing to disclose that: (1) failed to disclose that Everbridge was experiencing integration problems with respect to these acquisitions; (2) used the revenues from these acquisitions to mask increasingly stagnant organic growth; and (3) failed to disclose that the COVID pandemic was having a material impact on the size of the deals that Everbridge was able to obtain, with a negative effect on the Company's revenue growth. The truth regarding Everbridge's failed growth strategy was partially revealed through a press release issued on December 9, 2021. On that date, the Company disclosed that Defendant David Meredith had unexpectedly resigned as Everbridge's CEO. The Company also provided 2022 revenue growth guidance of between 20-23%, well below the expected baseline of 30%. On this news, Everbridge's common stock price fell almost by half, a price decline of $52.37 per share, or 45.4 percent, to close at $63.00 per share on December 10, 2021. Then, on February 24, 2022, the full truth was revealed. On that date, Everbridge announced its financial results for the fourth quarter and full year 2021, as well as its guidance for the first quarter and full year 2022. As to revenue, the Company guided only 20% growth in the first quarter of 2022 and a scant 15-17% growth for the full year, even lower than the disappointing guidance previously issued in December 2021. Further, in the related earnings call that same day, the new interim co-CEO, Vernon Irvin, disclosed for the first time, despite prior representations to the contrary, that "these products and businesses" obtained from Everbridge's buying binge "have created incremental product line complexity that produce integration challenges and have complicated our go-to-market efforts." He also stated that Everbridge will pause engaging in any new M&A activity to focus on product integration, as well as significantly "simplify" and reduce its product offerings. Defendant Patrick Brickley, the other interim co-CEO and CFO, stated that the focus on product integration and simplification would alone result in an approximate $17 million of revenue loss. Brickley also disclosed that the decline in deal sizes "has been exacerbated by lingering effects of COVID," and that it would result in another $15 million reduction in revenues. On all this news, Everbridge's common stock price fell another $15.68 per share, or 33.9 percent, to close at $30.61 per share on February 25, 2022. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common stock, Plaintiff and other Class members have suffered significant losses and damages. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP also encourages anyone with information regarding Everbridge's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. [GN] EVERBRIDGE INC: Gainey McKenna Reminds of June 3 Deadline --------------------------------------------------------- Gainey McKenna & Egleston on April 6 disclosed that a class action lawsuit has been filed against Everbridge, Inc. ("Everbridge" or the "Company") (NASDAQ: EVBG) in the United States District Court for the Central District of California on behalf of investors who purchased Everbridge stock between November 4, 2019 and February 24, 2022, inclusive (the "Class Period"). The Complaint alleges that Defendants made false and/or misleading statements and/or failed to disclose that: (1) the Company was experiencing integration problems with respect to its acquiring nine separate companies; (2) the Company was using the revenues from these acquisitions to mask increasingly stagnant organic growth; and (3) the Company was failing to disclose that the COVID-19 pandemic was having a material impact on the size of the deals that the Company was able to obtain, with a negative effect on the Company's revenue growth. When the true details entered the market, the lawsuit claims that investors suffered damages. Investors who purchased or otherwise acquired shares of Everbridge should contact the Firm prior to the June 3, 2022 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com. Please visit our website at http://www.gme-law.comfor more information about the firm. [GN] EVERBRIDGE INC: Robbins LLP Discloses Securities Class Action ------------------------------------------------------------- The Class: Shareholder rights law firm Robbins LLP reminds investors that a shareholder filed a class action on behalf of persons and entities that purchased or otherwise acquired Everbridge, Inc. (NASDAQ: EVBG) securities between, November 4, 2019 and February 24, 2022, for violations of the Securities Exchange Act of 1934. Everbridge is a global software company that provides enterprise software applications to automate and accelerate organizations' operational response to "critical events" in order to keep people safe and organizations running. If you would like more information about Everbridge, Inc.'s misconduct, click https://robbinsllp.com/everbridge-inc-bw/. What is this Case About: Everbridge, Inc. (EVBG) Misled Investors Regarding its Ability to Integrate Recently Purchased Companies and Their Offerings According to the complaint, Everbridge acquired nine companies shortly before and during the class period. Throughout the class period, defendants misled investors regarding its ability to integrate the new acquisitions and expectations of revenue growth. The truth about Everbridge's failings was partially revealed on December 9, 2021, when the Company disclosed the resignation of its CEO, without providing a reason for the decision. The Company also provided 2022 revenue growth guidance of between 20%-23%, well below the expected baseline of 30%. On this news, Everbridge's common stock fell over 45%, or $52.37 per share. Then, on February 24, 2022, Everbridge announced disappointing financial results for the fourth quarter and full year 2021, and even lower guidance for the first quarter and full year 2022. In so doing, one new interim co-CEO revealed the integration challenges resulting from the buying binge and noted that Everbridge will pause engaging in any new M&A activity to focus on product integration, as well as significantly "simplify" and reduce its product offerings. The other interim co-CEO noted that focus on product integration and simplification would alone result in an approximate $17 million of revenue loss and the decline in deal sizes would result in another $15 million reduction in revenues. On this news, Everbridge's common stock price fell another $15.68 per share, or 33.9%, to close at $30.61 per share on February 25, 2022. Next Steps: If you acquired shares of Everbridge, Inc. (EVBG) between November 4, 2019 and February 24, 2022, you have until June 3, 2022, to ask the court to appoint you lead plaintiff for the class. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. You do not have to participate in the case to be eligible for a recovery. All representation is on a contingency fee basis. Shareholders pay no fees or expenses. [GN] EVERBRIDGE INC: Rosen Law Firm Reminds of June 3 Deadline --------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, on April 6 announced the filing of a class action lawsuit on behalf of purchasers of the securities of Everbridge, Inc. (NASDAQ: EVBG) between November 4, 2019 and February 24, 2022, inclusive (the "Class Period"). A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than June 3, 2022. SO WHAT: If you purchased Everbridge securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the Everbridge class action, go to https://rosenlegal.com/submit-form/?case_id=3095 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than June 3, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Everbridge was experiencing integration problems with respect to its acquiring nine separate companies; (2) the Company was using the revenues from these acquisitions to mask increasingly stagnant organic growth; and (3) the Company was failing to disclose that the COVID-19 pandemic was having a material impact on the size of the deals that Everbridge was able to obtain, with a negative effect on the Company's revenue growth. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the Everbridge class action, go to https://rosenlegal.com/submit-form/?case_id=3095 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] FACEBOOK INC: Judge Won't Completely Close Out BIPA Class Action ---------------------------------------------------------------- Scott Holland, writing for Cook County Record, reports that a federal judge in San Francisco won't completely close out a class action based on allegations Facebook violated an Illinois privacy law when it allowed photographs to be uploaded without the consent of people pictured who didn't have accounts with the social media giant. U.S. District Judge James Donato issued the opinion March 31 in a case he wrote substantially "overlaps with the facts and law" of a case that ended in early 2021 with a $650 million settlement for Illinois residents with Facebook accounts based on allegations the platform's photo-tagging system violated the Illinois Biometric Information Privacy Act. Donato, who also presided over that litigation, said the complaint from named plaintiff Clayton Zellmer is distinct because its class would include Illinoisans who never had a Facebook account or used services of the company now known as Meta. But as in the settled class action, the heart of Zellmer's claims is a Facebook algorithm that relies on facial recognition technology. "Since Zellmer filed the complaint in this case, Facebook has abandoned the tagging functionality pursuant to the settlement agreement," Donato wrote. Allegations common to both complaints are that Facebook didn't obtain written authorization from those being tagged before it scanned their images and created a template assigned to their name, and further that Facebook didn't provide notice to users before conducting the tag suggestion facial scans. Facebook requested summary judgment on Zellmer's complaint, which Donato granted as relates to BIPA's notification and consent requirements. "The reason is straightforward," Donato wrote. "It would be patently unreasonable to construe BIPA to mean that Facebook was required to provide notice to, and obtain consent from, non-users who were for all practical purposes total strangers to Facebook, and with whom Facebook had no relationship whatsoever." He further said filings from Facebook and Zellmer "devoted substantial effort" to questions over whether facial scans are biometric "identifiers" or "information" under BIPA, and whether the company "collects" or "possesses" those scans. But even reading things in Zellmer's favor, Donato explained, his allegations read BIPA's protections too broadly. "The Illinois Legislature clearly contemplated that BIPA would apply in situations where a business had at least some measure of knowing contact with and awareness of the people subject to biometric data collection," Donato wrote. "The legislative findings emphasize that BIPA is intended to apply to interactions between businesses and their customers." Taking Zellmer's position, Donato continued, would essentially mean Meta would have to "identify every non-user in Illinois on a regular basis, and figure out a way to communicate with them to provide notice and obtain consent." He rejected Zellmer's ideas for how this could be accomplished, such as "deputizing" users to affirm non-users consented to having their faces scanned in uploaded pictures or to apply facial scanning only when Facebook users had written permission from everyone in a picture. "This too is not consonant with the plain language of BIPA, and immediately raises an insurmountable practical problem for the myriad of photos taken in restaurants, vacation destinations, school graduations and countless other settings where unknown people will appear in a picture," Donato wrote. "There is no realistic way for the person posting the photo to obtain consent from every stranger whose face happened to be caught on camera. It may be, as Zellmer suggests, that Amazon and Shutterfly have such policies, but that does not mean those policies satisfy BIPA, or are otherwise legally sound. Simply pointing to other policies also does not provide an answer to the problems the court has identified." However, Donato refused summary judgment on Zellmer's allegation Facebook lacked a written, publicly available data retention policy. He said Zellmer contests Facebook's evidence concerning such a policy and its past actions, such as claims it deleted facial signatures if it determined there wasn't a match to an existing template, and determined such "quintessential disputes of material facts" must be resolved at trial. Donato set a status conference for May 26, at which time both sides should expect to discuss if the lack of a public policy meeting BIPA requirements would be a single violation warranting one pool of liquidated or actual damages or if another remedy would be appropriate. Zellmer has been represented in the case by attorneys David P. Milian, John C. Carey and Jennifer M. Hernandez, of the firm of Carey Rodriguez Milian, of Miami; and Albert Y. Chang, of Bottini & Bottini, of LaJolla, California. Facebook has been represented by attorneys Lauren R. Goldman, Michael Rayfield and Matthew D. Provance, of the firm of Mayer Brown, with offices in Chicago and New York; and Michael G. Rhodes and Whitty Somvichian, of Cooley LLP, of San Francisco. [GN] FACEBOOK INC: Miller Thomson Attorney Discusses Court Ruling ------------------------------------------------------------ George A.G. Anderson, Esq., of Miller Thomson LLP, in an article for Mondaq, reports that companies often require individuals to provide access to their personal data in order to access products and services. In some circumstances, an individual's digital footprint and data might be shared with a third party either intentionally or unintentionally. These situations can lead to allegations that a personal data breach has occurred giving rise to a potential class action. Which in turn, may trigger a data breach or cyber security insurance policy. In determining whether to certify an alleged privacy breach as a class action, the courts may be required to determine whether the claim can proceed where there is insufficient evidence to prove that a company, without the authorization of the end-user, intentionally or recklessly breached and invaded the end-user's privacy. In Simpson v. Facebook, Inc., 2022 ONSC 1284, the Divisional Court considered this issue in relation to a proposed class action alleging the personal data of Canadian Facebook users was improperly shared with Cambridge Analytica. The Certification In Simpson v. Facebook, 2021 ONSC 968, the plaintiff moved to certify a proposed class action against Facebook for improperly sharing Facebook users' personal data with Cambridge Analytica which was in breach of Facebook's own terms of use and an invasion of privacy of thousands of Facebook users. Relying on the tort of "intrusion upon seclusion" the Plaintiff sought to hold Facebook accountable through $622 million in "symbolic or moral damages" and $62 million in punitive damages on behalf of the class. The certification was dismissed by Justice Belobaba of the Ontario Superior Court for failure to satisfy the common issues requirements of the Class Proceedings Act, 1992. In particular, the requirement that "some evidence" was required to demonstrate that a Canadian user's personal data was shared with Cambridge Analytica2: It follows that there is no basis in fact for any of the proposed common issues that ask whether the defendants invaded any class member's privacy, whether at common law under the tort of intrusion upon seclusion or in breach of provincial privacy statutes. None of these PCIs can be certified. Absent common issues, there is no justification for a class proceeding. Justice Belobaba reiterated the importance of protecting the privacy of individuals and their personal data, while at the same time acknowledging the court's role as a gatekeeper for allowing class actions to proceed. The Appeal The plaintiff appealed the decision of Justice Belobaba to the Ontario Divisional Court, which upheld the decision refusing to certify the class action. In its analysis, the Divisional Court acknowledged that the motion judge is entitled to substantial deference. The court held the motion judge correctly applied the certification test and held that it was not an error to focus of the s.5 (1)(c) common issues requirement, as failure to meet one of the requirements is fatal. The court held that the motion judge applied the legal principals and was consistent with case law with respect to certification motions. Moreover, the court held the motions judge did not require the appellant to show an actual breach of privacy, but found that as there was no basis in fact for the core allegation on which the claim and common issues depended the certification had to be dismissed. The appeal was dismissed with costs to the respondents. Takeaway The Divisional Court's decision demonstrates that even though there is a low bar for the certification of a class action, it is a hurdle that still must be overcome in order to successfully advance a claim. Moreover, the decision is consistent with trends from Canadian courts to act as gatekeepers where class actions are commenced on speculative grounds, where there is insufficient evidence to support the cause of action, or damages are difficult to quantify. Businesses involved in the collection or commercialization of personal information should ensure they have clear policies in place to protect against data breaches and bring to the attention of the end users how their data might be used in order to mitigate against future risks involving potential privacy breaches. [GN] FANDANGO MEDIA: Violates Video Privacy Protection Act, Suit Says ---------------------------------------------------------------- JASON GOLDSTEIN and TAMMY HUTTEMEYER, individually and on behalf of all others similarly situated, v. FANDANGO MEDIA, LLC, Case No. 9:22-cv-80569 (S.D. Fla., April 11, 2022) alleges that Fandango violated the Video Privacy Protection Act ("VPPA"). The Defendant develops, owns, and operates a website and mobile application, both titled "Fandango," that allow users to "catch the newest trailers, browse Rotten Tomatoes scores, find the latest showtimes, and buy tickets to the right movie at the right time with ticketing to more than 33,000 screens nationwide." Unbeknownst to Plaintiffs and members of the Classes, the Defendant allegedly knowingly and intentionally discloses its customers' personally identifiable information whenever they purchase a movie ticket or watch a video clip on Fandango. The Defendant sells tickets to movies and contracts directly with more than 40,000 theaters worldwide, serving as a substitute for a theater’s box office. Fandango also hosts and delivers thousands of movie trailers, interviews, select scenes, and premiere videos. These video clips are all available for viewing on the Fandango website and app. The Defendant develops, owns, and operates a mobile application ("Fandango App"). Consumers can download the Fandango App through the Google Play Store on Android devices or the Apple App Store on iOS devices. Once downloaded, the Fandango App requests permission from the user to access their location through the mobile device’s GPS and to allow push notifications. Users may also register an account with the App, a process that requires them to input their email addresses. At no point does Defendant receive permission from users to share personally identifiable information or video viewing information with third parties, the lawsuit says.[BN] The Plaintiffs are represented by: Christopher R. Reilly, Esq. BURSOR & FISHER, P.A. 701 Brickell Avenue, Suite 1420 Miami, FL 33131 Telephone: (305) 330-5512 Facsimile: (305) 679-9006 E-Mail: creilly@bursor.com FAT BRANDS: Rosen Law Reminds of May 17 Deadline ------------------------------------------------ WHY: Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of FAT Brands Inc. (NASDAQ: FAT, FATBB, FATBP, FATBW) between December 4, 2017 and February 18, 2022, inclusive (the "Class Period"), of the important May 17, 2022 lead plaintiff deadline in the securities class action commenced by the Firm. SO WHAT: If you purchased FAT Brands securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the FAT Brands class action, go to https://rosenlegal.com/submit-form/?case_id=3635 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than May 17, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Many of these firms do not actually handle securities class actions, but are merely middlemen that refer clients or partner with law firms that actually litigate the cases. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) the Company and the Wiederhorns engaged in transactions "for no legitimate corporate purpose"; (2) the Company ignored warning signs relating to transactions with the Wiederhorns; (3) as a result, the Company was likely to face increased scrutiny, investigations, and other potential issues; (4) certain executives, who are touted as critical to the Company's success, were at great risk of scrutiny-potentially, at least in part, due to the Company's actions; (5) the Company's touted chief executive officer (CEO) and chief operating officer (COO) were under investigation regarding transactions with the Company; and (6) as a result, defendants' public statements were materially false and/or misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the FAT Brands class action, go to https://rosenlegal.com/submit-form/?case_id=3635 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. [GN] FCA US: Faces Gomez Suit Over Defective Chrysler Minivans --------------------------------------------------------- RODRIGO NIETO GOMEZ, individually, and on behalf of all others similarly situated, Plaintiff v. FCA US LLC, Defendant, Case No. 3:22-cv-02171 (N.D. Cal., April 6, 2022) is a class action against the Defendant for alleged violations of the California's Unfair Competition Law, the Song-Beverly Consumer Warranty Act, the California Business & Professions Code, and the Consumer Legal Remedies Act. FCA advertises its Chrysler Pacifica minivans as "designed to help keep your family safe." In reality, the 2017 and 2018 Plug-In Hybrid Vehicles have a serious risk of exploding and erupting in flames, posing a grave threat of both severe property damage and physical harm, or even death, to drivers and passengers, prompting FCA to issue Recall No. 22V-077 on February 11, 2022. In the course of normal use, Class Vehicles may erupt in flames, causing an explosion. The risk of fire is present regardless of whether the ignition is turned on or off. The defect is inherent in each of the Class Vehicles and was present at the time of sale, says the complaint. According to the complaint, the Plaintiff and Class Members purchased or leased vehicles that, at the time of purchase or lease, were of a lesser standard and quality than represented and were not fit for the ordinary purpose of providing safe transportation. Plaintiff and Class Members would have paid less for their vehicles had they known of the Defect. The Plaintiff and Class Members have allegedly suffered damages in that they lost the benefit of their bargain, overpaid for the Class Vehicles, suffered diminution in value of the Class Vehicles, loss of use of the Class Vehicles, as well as incurred out of pocket expenses related to loss of use of the affected vehicles. FCA US LLC designs, engineers, manufactures, and sells vehicles.[BN] The Plaintiff is represented by: David S. Casey, Jr., Esq. Gayle M. Blatt, Esq. Jeremy Robinson, Esq. P. Camille Guerra, Esq. Michael J. Morphew, Esq. CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD, LLP 110 Laurel Street San Diego, CA 92101 Telephone: (619) 238-1811 Facsimile: (619) 544-9232 E-mail: dcasey@cglaw.com gmb@cglaw.com jrobinson@cglaw.com camille@cglaw.com mmorphew@cglaw.com FCA US: Ramirez Sues Over Defective Electric Vehicles ----------------------------------------------------- ELIAS RAMIREZ, MICHELLE TINIO RAMIREZ, and JAVIN T. OLSON, individually and on behalf of all others similarly situated, Plaintiffs v. FCA US LLC, a Delaware Limited Liability Company, Defendant, Case No. 2:22-cv-10734-SDD-CI (E.D. Mich., April 6, 2022) is a consumer class action that arises out of Defendant FCA US, LLC's manufacture and sale of Chrysler Pacifica Hybrid Minivans, a/k/a Plug-In Hybrid Electric Vehicles or PHEVs, that were uniformly and dangerously defective, causing them to be prone to catching fire and even explosion. According to the complaint, the Defendant sold these dangerously defective vehicles to consumers, including Plaintiffs, without disclosing their uniform and dangerous defect, respecting which Defendant has yet to remedy and has not yet disclosed its root cause though it appears that the defect is rooted in or connected to the vehicles' high voltage batteries. Because of FCA's breaches of implied warranties and its alleged failure to act more quickly in disclosing and providing a remedy for the hybrid propulsion defect, owners and lessees of Defective Class Vehicles are injured in fact, incurred damages, and suffered ascertainable losses in money and property. Had Plaintiffs and the putative Class Members known of the defect, then they would not have purchased or leased those vehicles, would have paid substantially less for them, or would have purchased non-hybrid versions of the vehicles, which cost substantially less. The Plaintiffs bring this class action to redress FCA's misconduct. They seek damages and a repair under the Magnuson-Moss Warranty Act and state laws. FCA US LLC designs, engineers, manufactures, and sells vehicles.[BN] The Plaintiffs are represented by: E. Powell Miller, Esq. Sharon S. Almonrode, Esq. THE MILLER LAW FIRM PC 950 W. University Dr., Ste. 300 Rochester, MI 48307 Telephone: (248) 841-2200 Facsimile: (248) 652-2852 E-mail: epm@millerlawpc.com ssa@millerlawpc.com - and - Stephen R. Basser, Esq. Samuel M. Ward, Esq. BARRACK, RODOS, & BACINE 600 W Broadway, Suite 900 San Diego, CA 92101 Telephone: (619)230-0800 Facsimile: (619) 230-1874 E-mail: sbasser@barrack.com sward@barrack.com - and - Jeffrey W. Golan, Esq. BARRACK, RODOS & BACINE Two Commerce Square 2001 Market Street, Suite 3300 Philadelphia, PA 19103 Telephone: (215) 963-0600 E-mail: jgolan@barrack.com - and - John G. Emerson, Esq. EMERSON FIRM, PLLC 2500 Wilcrest Drive, Suite 300 Houston, TX 77042 Telephone: (800) 551-8649 Facsimile: (501) 286-4659 E-mail: jemerson@emersonfirm.com GAMESTOP INC: Illegally Transmits Consumers' PII, Echevarria Says ----------------------------------------------------------------- ANTHONY ECHEVARRIA, individually and on behalf of all others similarly situated, Plaintiff v. GAMESTOP, INC., Defendant, Case No. 1:22-cv-02143 (E.D.N.Y., April 13, 2022) is a class action against the Defendant for violation of the Video Privacy Protection Act (VPPA). According to the complaint, the Defendant violated the VPPA by transmitting the personally identifiable information (PII) of the Plaintiff and similarly situated consumers to unrelated third parties. The Defendant utilized the Facebook Tracking Pixel to compel the Plaintiff's and Class members' web browsers to transfer their identifying information, like their Facebook IDs, along with their event data, like the title of the video games they purchased from the Defendant. The Defendant knowingly disclosed the Plaintiff's and Class members' PII because it used that data to build audiences on Facebook to retarget them for its advertising campaigns. The Plaintiff and Class members did not provide the Defendant with any form of consent to disclose their PII to third parties. Gamestop, Inc. is a video tape service provider, with its principal place of business located at 625 Westport Parkway, Grapevine, Texas. [BN] The Plaintiff is represented by: Joshua D. Arisohn, Esq. Philip L. Fraietta, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: jarisohn@bursor.com pfraietta@bursor.com - and – Christopher R. Reilly, Esq. BURSOR & FISHER, P.A. 701 Brickell Avenue, Suite 1420 Miami, FL 33131 Telephone: (305) 330-5512 Facsimile: (305) 679-9006 E-mail: creilly@bursor.com GATOS SILVER: Kahn Swick & Foti Reminds of April 25 Deadline ------------------------------------------------------------ Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors that they have until April 25, 2022 to file lead plaintiff applications in a securities class action lawsuit against Gatos Silver, Inc. (NYSE: GATO), if they purchased the Company's securities between October 28, 2020 and January 25, 2022, inclusive (the "Class Period") and/or purchased or otherwise acquired the Company's shares pursuant to the Company's October 2020 initial public offering (the "IPO"). This action is pending in the United States District Court for the District of Colorado. What You May Do If you purchased securities or shares of Gatos as above and would like to discuss your legal rights and how this case might affect you and your right to recover for your economic loss, you may, without obligation or cost to you, contact KSF Managing Partner Lewis Kahn toll-free at 1-877-515-1850 or via email (lewis.kahn@ksfcounsel.com), or visit https://www.ksfcounsel.com/cases/nyse-gato/ to learn more. If you wish to serve as a lead plaintiff in this class action, you must petition the Court by April 25, 2022. About the Lawsuit Gatos Silver and certain of its executives are charged with failing to disclose material information during the Class Period and/or in the Registration Statement and Prospectus issued in conjunction with the initial public offering, violating federal securities laws. On January 25, 2022, post-market, the Company revealed "errors in the technical report entitled 'Los Gatos Project, Chihuahua, Mexico' with an effective date of July 1, 2020 . . . , as well as indications that there is an overestimation in the existing resource model" and that on a preliminary basis, the Company estimated a potential reduction of the metal content of its CLG's mineral reserve ranging from 30% to 50% of the metal content remaining after depletion. On this news, shares of Gatos Silver fell $7.02 per share, or approximately 68.9%, to close at $3.17 per share on January 26, 2022. The case is Bilinsky v. Gatos Silver, Inc., et al., No. 22-cv-453. About Kahn Swick & Foti, LLC KSF, whose partners include former Louisiana Attorney General Charles C. Foti, Jr., is one of the nation's premier boutique securities litigation law firms. KSF serves a variety of clients -- including public institutional investors, hedge funds, money managers and retail investors -- in seeking recoveries for investment losses emanating from corporate fraud or malfeasance by publicly traded companies. KSF has offices in New York, California, Louisiana and New Jersey. To learn more about KSF, you may visit www.ksfcounsel.com. Contact: Kahn Swick & Foti, LLC Lewis Kahn, Managing Partner lewis.kahn@ksfcounsel.com 1-877-515-1850 1100 Poydras St., Suite 3200 New Orleans, LA 70163 [GN] GATOS SILVER: Vincent Wong Law Reminds of April 25 Deadline ----------------------------------------------------------- The Law Offices of Vincent Wong on April 11 disclosed that a class action lawsuit has commenced on behalf of investors. This lawsuit is on behalf of persons and entities that purchased or otherwise acquired Gatos: (a) common stock pursuant and/or traceable to documents issued in connection with the Company's initial public offering conducted on or about October 28, 2020; and/or (b) securities between October 28, 2020 and January 25, 2022, inclusive. If you suffered a loss on your investment in Gatos, contact us about potential recovery by using the link below. There is no cost or obligation to you. https://www.wongesq.com/pslra-1/gatos-silver-inc-loss-submission-form?prid=25733&wire=4 ABOUT THE ACTION: The class action against Gatos includes allegations that the Company made materially false and/or misleading statements and/or failed to disclose that: (1) the technical report for Gatos's primary mine, the Cerro Los Gatos deposit, contained certain errors; (2) among other things, the mineral reserves had been overestimated by as much as 50%; and (3) as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. DEADLINE: April 25, 2022 Aggrieved Gatos investors only have until April 25, 2022 to request that the Court appoint you as lead plaintiff. You are not required to act as a lead plaintiff in order to share in any recovery. Vincent Wong, Esq. is an experienced attorney who has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Vincent Wong, Esq. 39 East Broadway Suite 304 New York, NY 10002 Tel. 212.425.1140 E-Mail: vw@wongesq.com [GN] GENERAL MOTORS: Faces Chevrolet Bolt EV Class Action in Canada -------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Chevrolet Bolt EV class action lawsuit in Canada alleges 2017-2022 Chevrolet Bolt EV and 2022 Chevrolet Bolt EUV cars are defective due to the batteries. The General Motors Canada lawsuit alleges the EV batteries cause the electric cars to catch fire when the batteries are fully or nearly fully charged. Chevy Bolt owners cannot charge their batteries to their capacity and GM advises not to allow the battery to be discharged lower than 30%. The Chevy Bolt class action lawsuit was filed by the British Columbia owner of a 2017 Chevrolet Bolt and a 2018 Bolt. According to the plaintiff, GM was deceptive in the marketing of the Bolts which has caused Canadian customers to drive dangerous cars due to the risk of battery fires. The GM class action asserts when the Bolt cars are in operation, they use an active thermal management system to keep the batteries at safe temperatures. But when the cars are charging the thermal management system is disengaged. This is dangerous because GM admits the batteries may have two defects that cause battery fires: A torn adnode tab, and a folded separator. A Bolt battery fire is possible if both defects exist at the same time. In addition to the inability to discharge the batteries below 30%, Chevy Bolt owners have been told to charge the batteries to 90% capacity. The plaintiff alleges Bolt customers didn't receive the electric cars they were promised considering the Bolts have only 60% of the advertised range. "GM and GM Canada have been aware of issues affecting the batteries in the Class Vehicles since at least 2018. Nonetheless, GM and GM Canada have marketed and sold Chevrolet Bolts with the knowledge that they contain defective and potentially dangerous batteries without warning customers or authorized dealerships of the issue." -- Chevy Bolt class action lawsuit General Motors finally did recall the electric vehicles, but only after "several fires" occurred in the Bolts. The plaintiff claims GM delayed the recall to avoid the financial consequences of admitting the batteries are defective. The automaker allegedly wasted time by offering software updates for a problem that could only be fixed by replacing the entire battery. In addition, the Canadian plaintiff alleges General Motors repurchased Chevy Bolts in several areas of the U.S. but never made the same offer to Canadian customers. According to the class action lawsuit, "GM and GM Canada were enriched by the inflated prices of the Class Vehicle and the delayed recall which resulted in increased revenues for GM and GM Canada." The Chevrolet Bolt class action lawsuit was filed in the Supreme Court of British Columbia: G. W. Kent Scarborough, v. General Motors LLC, General Motors of Canada Company. The plaintiff is represented by Klein Lawyers LLP. [GN] GOLDMAN SACHS: Wants $7.5BB 401(k) Plan Class Action Trimmed ------------------------------------------------------------ Jacklyn Wille, writing for BloombergLaw, reports that Goldman Sachs Group Inc. wants a 17,575-person class action challenging the company's $7.5 billion 401(k) plan trimmed to remove class members who signed separation agreements requiring them to arbitrate their claims, a motion filed in Manhattan federal court shows. The certified class includes 2,955 people who received valuable severance benefits in exchange for their agreement to arbitrate any dispute arising out of their employment, Goldman told the U.S. District Court for the Southern District of New York. Goldman wants these people excluded from the class and compelled to arbitrate their claims. [GN] GRAB HOLDINGS: ClaimsFiler Reminds of May 16 Deadline ----------------------------------------------------- ClaimsFiler, a FREE shareholder information service, reminds investors that they have until May 16, 2022 to file lead plaintiff applications in a securities class action lawsuit against Grab Holdings Limited (NasdaqGS: GRAB, GRABW), if they purchased the Company's securities between November 12, 2021 and March 3, 2022, inclusive (the "Class Period"). This action is pending in the United States District Court for the Southern District of New York. Get Help Grab investors should visit us at https://claimsfiler.com/cases/nasdaq-grab/ or call toll-free (844) 367-9658. Lawyers at Kahn Swick & Foti, LLC are available to discuss your legal options. About the Lawsuit Grab and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On March 3, 2022, the Company announced its 4Q2021 results, disclosing "a 44% decline YoY" in revenue and a $1.1 billion loss for the quarter due to "invest[ing] heavily" in driver incentives and that it would take one or two quarters "to get that equilibrium between drivers and riders, between supply and demand." On this news, shares of Grab fell $2.04, or 37.3%, to close at $3.28 per share on March 3, 2022, on unusually heavy trading volume. The case is Peccarino v. Grab Holdings Limited, et al., No. 22-cv-2189. About ClaimsFiler ClaimsFiler has a single mission: to serve as the information source to help retail investors recover their share of billions of dollars from securities class action settlements. At ClaimsFiler.com, investors can: (1) register for free to gain access to information and settlement websites for various securities class action cases so they can timely submit their own claims; (2) upload their portfolio transactional data to be notified about relevant securities cases in which they may have a financial interest; and (3) submit inquiries to the Kahn Swick & Foti, LLC law firm for free case evaluations. [GN] GRAB HOLDINGS: Vincent Wong Law Reminds of May 16 Deadline ---------------------------------------------------------- Attention Grab Holdings Limited ("Grab Holdings") (NASDAQ: GRAB) shareholders: The Law Offices of Vincent Wong announce that a class action lawsuit has commenced on behalf of investors who purchased between November 12, 2021 and March 2, 2022. If you suffered a loss on your investment in Grab Holdings, contact us about potential recovery by using the link below. There is no cost or obligation to you. https://www.wongesq.com/pslra-1/grab-holdings-limited-loss-submission-form?prid=25745&wire=4 ABOUT THE ACTION: The class action against Grab Holdings includes allegations that the Company made materially false and/or misleading statements and/or failed to disclose that: (1) Grab's driver supply declined during the third quarter; (2) as a result, Grab continued to invest heavily in driver and consumer incentives to "preemptively recalibrate driver supply"; (3) as a result, the Company's financial results would be adversely impacted, including, among other things, a significant decline in revenue; and (4) as a result of the foregoing, defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. DEADLINE: May 16, 2022 Aggrieved Grab Holdings investors only have until May 16, 2022 to request that the Court appoint you as lead plaintiff. You are not required to act as a lead plaintiff in order to share in any recovery. Vincent Wong, Esq. is an experienced attorney who has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Vincent Wong, Esq. 39 East Broadway Suite 304 New York, NY 10002 Tel. 212.425.1140 E-Mail: vw@wongesq.com [GN] GRUBHUB INC: Faces Class Action Over Unfair Contracts ----------------------------------------------------- Apex Insight reports that three major US restaurant delivery companies, Grubhub, Just Eat and its subsidiary Postmates are facing a class action lawsuit from former clients accusing them of forcing their prices up due to unfair contracts. The suit was originally filed in 2020 but a federal judge refused to dismiss the case. The three companies face an accusation that they are not allowed to sell their food cheaper elsewhere, even from their physical restaurants. This has forced their prices up to accommodate the delivery companies fees. "Defendants charge restaurants fees ranging from 13.5 percent to 40 percent of revenues, even though the average restaurant's profits range from 3 percent to 9 percent of revenues," Frank LLP, the law firm handling the suit, wrote on their website. "All of this harms consumers and restaurants alike. Restaurants have to charge consumers supra-competitive prices to those who do not buy their meals through the delivery apps, so consumers are driven to purchase meals through the apps. But because of defendants' unjustifiably high fees, meals sold through the apps are more expensive than they should be." The three delivery companies had asked for the class action suit to be dismissed but U.S. District Judge Lewis Kaplan in Manhattan denied the application. He wrote the lawsuit "alleges plausibly that restaurants cannot feasibly avoid doing business" with these delivery companies and "that restaurants -- being foreclosed from lowering prices in the direct markets to attract sales -- have had no choice but to raise prices in both the platform and direct markets." In a comment sent to Bloomberg, a Grubhhub spokesperson stated that the company is "disappointed in the decision and we will continue to defend our business and the services we offer restaurants and diners." This doesn't come at a good time for Grubhub, which has been reported to be aggressively cutting costs in recent weeks as it struggles to achieve profitability. Just Eat and Postmates are also known to be struggling to achieve profitability. [GN] HAEMONETICS CORP: Loses Bid to Dismiss Crumpton's BIPA Complaint ---------------------------------------------------------------- In the case, MARY CRUMPTON, individually and on behalf of all others similarly situated, Plaintiff v. HAEMONETICS CORPORATION, a Massachusetts corporation, Defendant, Case No. 21 C 1402 (N.D. Ill.), Judge Rebecca R. Pallmeyer of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied the Defendant's motion to dismiss for lack of personal jurisdiction. I. Background Defendant Haemonetics is a blood and plasma management company incorporated and headquartered in Massachusetts. According to Alexander Steffan (who has worked for Haemonetics for some 12 years, now as VP of Plasma Business Development), Haemonetics has three business units: (1) a plasma division, which provides "equipment, supplies, and software" to plasma donation centers; (2) a blood center division, which provides the same to blood collection centers; and (3) a hospital division, which provides "a variety of blood management products" to hospitals. Between June 2017 and August 2018, Plaintiff Crumpton, a citizen and resident of Illinois, donated plasma at a plasma donation center in Illinois. The donation center used donor management software provided by Defendant Haemonetics -- meaning that whenever she donated plasma, the Plaintiff was required to scan her fingerprints; then, Haemonetics' software collected her biometric data and sent it to be stored on Haemonetics-owned servers outside Illinois. In February 2021, the Plaintiff filed a proposed class action in state court, alleging that Haemonetics violated two provisions of the Illinois Biometric Information Privacy Act ("BIPA"). The Plaintiff notes that, based on the way the eQue donor management system operated, Haemonetics received and stored the biometric data of Illinois residents, collected in Illinois. The Plaintiff next points to evidence of Haemonetics' physical presence in Illinois (not all of which appears to relate to the eQue system). She also points to the contract governing eQue as evidence of Haemonetics' connection to Illinois. Haemonetics had extensive dealings with Octapharma's Illinois plasma donation centers, only some related to eQue. Haemonetics, for its part, has provided evidence that minimizes its eQue activities in Illinois. Though Haemonetics "does business" in all 50 states (presumably meaning it ships products and software to donation centers and hospitals all over the country), Steffan explained that all of Haemonetics' customers for the eQue software are incorporated and headquartered outside Illinois. Haemonetics, a Massachusetts corporation, then removed to the Court, on the basis of diversity jurisdiction. It has moved to dismiss for lack of personal jurisdiction and for failure to state a claim, and in addition seeks a stay pending several Illinois state court decisions. The parties agreed to conduct limited discovery on personal jurisdiction and to stay briefing on the other motions, meaning only the issue of personal jurisdiction is ripe for the Court's consideration. II. Discussion The parties focus their attention on several BIPA cases from district courts in Illinois, which have considered when personal jurisdiction over an out-of-state vendor of biometric-enabled technology is appropriate. On one hand, several courts have concluded there is no personal jurisdiction where the vendor simply provides technology to its corporate customers outside of Illinois, with limited or no knowledge on how the technology eventually winds up in Illinois or is used by Illinois residents. But on the other hand, where a biometric technology vendor has "direct contacts with the forum state not enabled or created by a third party," those contacts may support the exercise of personal jurisdiction, citing King v. PeopleNet Corp., No. 21 CV 2774, 2021 WL 5006692, *6 (N.D. Ill. Oct. 28, 2021). In King, the defendant-vendor provided biometric timekeeping devices to the plaintiff's Illinois-based employer; the devices then transmitted plaintiff's biometric information to defendant's servers. In finding personal jurisdiction, the court noted that the defendant had a 15-year relationship with the plaintiff's employer, shipped the devices to Illinois, did business with (and presumably had contracts with) multiple Illinois customers, and "handled a large quantity of biometric data from Illinois over a period of years." Judge Pallmeyer concludes that Haemonetics, too, had direct contacts with Illinois, not just contacts created by the unilateral actions of Octapharma or Octapharma's customers. Even if Haemonetics did not directly send the software to Illinois (an issue not clarified by the parties), its own actions in obtaining the exclusive arrangement ensured that Illinois donation centers -- of which Haemonetics was well aware -- deployed that software. Other aspects of Haemonetics' business dealings with Octapharma confirm its deliberate effort to exploit the Illinois biometric data market. In response, Haemonetics argues that there is no "direct connection" between Haemonetics' suit-related conduct and Illinois. Relatedly, it suggests that because it does not directly interact with Illinois residents, its suit-related contacts in Illinois are solely through third parties—that is, Octapharma. Judge Pallmeyer opines that her conclusion -- that these contacts are sufficient to establish a prima facie showing of personal jurisdiction -- is bolstered by evidence that Haemonetics may have conducted eQue-related site visits to Octapharma's Illinois locations. Regardless whether these contractual agreements alone create a factual dispute about whether the site visits occurred, at the least they demonstrate that Haemonetics created business arrangements anticipating physical contact with Octapharma's facilities. Other contacts cited by the Plaintiff are less significant. Similarly, though the Plaintiff notes that Haemonetics operated two offices in Illinois, neither related to the eQue software or biometric-enabled software. The Plaintiff's emphasis on the execution of the eQue Master Agreement -- namely, that it was executed by an Illinois resident and in Illinois -- is also misplaced. Besides the LinkedIn profile, she provides no evidence suggesting that Haemonetics' employees developed or worked on the eQue software between the execution of the contract in 2008 and the time she first donated plasma in 2017. In sum, though not all of the Plaintiff's evidence is compelling, she has made "a threshold showing of minimum contacts," Judge Pallmyer opines. This showing, she says, is defeated only where the defendant presents "a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Haemonetics has offered no reason why litigating these claims in Illinois would be unfair. The Plaintiff has therefore satisfied her burden to establish a prima facie case for personal jurisdiction. III. Conclusion Haemonetics' motion to dismiss for lack of personal jurisdiction is denied. As case law concerning BIPA is rapidly evolving, Judge Pallmeyer recognized that the Defendant may wish to present additional authority in support of its challenge to the adequacy of the complaint or may wish to withdraw or amend its motion for stay. Those motions are stricken without prejudice to reinstatement. The parties are encouraged to discuss settlement and are directed to submit a joint written status report by April 26, 2022. A full-text copy of the Court's March 30, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/4f2rfp2w from Leagle.com. HAWAII: 9th Circuit Reverses Decision in Title IX Class Action -------------------------------------------------------------- Maui Now reports that the US Ninth Circuit Court of Appeals reversed a lower court's decision and recognized class action status of high school girls in a Hawai'i Title IX athletics civil rights case. The three-judge panel ruled in favor of four girls at Hawai'i's largest public high school, James Campbell High School in Ewa Beach on O'ahu. The girls sought the class action status in a lawsuit against the Hawai'i Department of Education and the O'ahu Interscholastic Association to eliminate blatant gender‐based inequity faced by the female athletes. The ruling comes during the 50th anniversary of Title IX, a landmark civil rights law requiring gender equity in education that applies to sports programs run by federally‐funded high schools across the United States. The law was co-authored by Patsy T. Mink, who served 13 sessions in the US House of Representatives for Hawai'i. The girls, on behalf of themselves and hundreds of girls at Campbell High School, are seeking gender equity in all aspects of the school's sports programs. The girls seek system‐wide change and compliance with the school's obligations under Title IX to end sex discrimination in athletics, according to a joint news release from the girls' attorneys from Legal Aid at Work, the ACLU of Hawai'i and Simpson Thacher & Bartlett LLP. Nanea Kalani, Communications Director for the Hawai'i State Department of Education, said in an email: "This case is still being actively litigated. The Department cannot comment on active or pending litigation." The case, which originally was filed in December 2018, will resume in the U.S. District Court in Honolulu. "The parties will be meeting to discuss how best to move forward," said ACLU of Hawai'i legal director Wookie Kim. "We expect our school will finally treat girls fairly based on the Court's ruling," said A.M.B., one of the four female athletes representing the hundreds of girls at Campbell High School. "We're relieved that the judges ruled in our favor and that girls who play sports are now one giant step closer to having equality in our school sports program when it comes to treatment, opportunities and benefits." In the original complaint, four girls -- who competed in water polo, swimming and soccer -- filed the lawsuit on behalf of all present and future female athletes at Campbell High School to address systemic gender discrimination in athletics. The discrimination includes the lack of a girls athletic locker room, while the boys at the school have a stand‐alone, dedicated athletic locker room. The girls allege "female athletes, including plaintiffs, must carry their athletic gear around with them all day and have resorted to changing in teachers' closets, in the bathroom of the nearest Burger King, and even on the practice field, potentially in full view of bystanders." The complaint also alleges female athletes have experienced a range of gender inequities throughout the program, including inferior practice and game facilities, the absence of coaches, unequal access to athletic trainers, and less publicity and promotion for girls' teams. The school also has provided girls with far fewer athletic offerings compared to the boys. In late 2019, the federal district court in Hawai'i denied the girls class action status. The 2019 ruling ignored long‐standing precedent and created an unfounded barrier for the girls to overcome. Indeed, the district court ruling would have required hundreds of separate lawsuits, which would have grossly burdened the girls, the school and the courts, the press release said. Immediately after the late‐2019 class certification denial, the girls' attorneys appealed the decision to the Ninth Circuit Court of Appeals, the federal appellate court that covers Hawai'i. On April 4, 2022, the three‐judge panel of the appeals court resoundingly ruled in favor of the girls, recognizing that the district court erred in denying class action status. The Court acknowledged that, when girls seek equity under Title IX, allegations of systemic discrimination favor class actions. The Court also found that the girls' claim for class‐wide retaliation could proceed because of the chilling effect retaliatory actions have throughout the high school. The retaliation claim stems from the school's threat to cancel the girls' water polo program after girls and parents raised concerns about gender‐based athletic inequities. Elizabeth Kristen with Legal Aid at Work said: "When girls and parents tried to solve problems on their own, the school retaliated, leaving them with no other choice but to sue the school to achieve the gender equity Title IX promised 50 years ago." Kim said that Mink, the co-author of Title IX, "worked tirelessly for education reform during her political career and overcame gender and racial discrimination to become the first woman from Hawai'i and first woman of color elected to Congress. "It shouldn't take nearly half a century for schools like Campbell to address obvious inequities such as the absence of locker rooms for girls, and fewer athletic opportunities for girls. We look forward to this ruling spurring immediate action at Campbell High School and within the Hawai'i Department of Education and the O'ahu Interscholastic Association." [GN] HILLSBORO CLUB: Lugo Seeks to Collect Unpaid Wages Under WARN Act ----------------------------------------------------------------- JOSE LUGO, and other similarly situated individuals v. HILLSBORO CLUB, INC., Case No. 0:22-cv-60705-AHS (S.D. Fla., April 11, 2022) is a civil class action for collection of unpaid wages and benefits for 60 calendar days pursuant to the United States Worker Adjustment and Retraining Notification Act (WARN Act). According to the complaint, the Defendant is liable under the WARN Act for the failure to provide Plaintiff and other similarly situated former employees at least 60 days advance notice of their employment losses, as required by the WARN Act. This is also a civil action for discrimination, on behalf of the Plaintiff only, under the Americans with Disabilities Act (ADA); the Florida Civil Rights Act; Title VII of the Civil Rights Act of 1964; and the Age Discrimination in Employment Act of 1967. The Plaintiff worked for Defendant in more than one period of time over the last several years. In 2017, Plaintiff worked as dishwasher for Defendant. The Defendant is a private residence club for members and their guests located in Broward County, Florida. At all times relevant, Defendant is and was a business enterprise that employed 100 or more employees, excluding part-time employees; or 100 or more employees who in the aggregate work at least 4,000 hours per week (exclusive of hours of overtime).[BN] The Plaintiff is represented by: Tanesha W. Blye, Esq. R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30 th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: tblye@saenzanderson.com HILTON HOTELS: White Appeals Class Cert. Bid Denial --------------------------------------------------- Plaintiffs Valerie White, et al., filed an appeal from a court ruling entered in the lawsuit entitled VALERIE R. WHITE, et al., Plaintiffs v. HILTON HOTELS RETIREMENT PLAN, et al., Defendants, Case No. 1:16-cv-00856-CKK, in the United States District Court for the District of Columbia. Plaintiffs bring this putative class action under the Employee Income Security Act of 1974 ("ERISA") with respect to certain vesting determinations made by the Hilton Hotels Retirement Plan. This matter was noticed as related to Kifafi v. Hilton Hotels Retirement Plan, an action over which the Court concluded its jurisdiction in December 2015, after more than 17 years of litigation. In Kifafi, the Court certified a benefit- accrual class and certain vesting subclasses. Plaintiff White was employed at the Washington Hilton between June 21, 1972 and March 26, 1982. Her service prior to Jan. 1, 1976 has been calculated pursuant to the elapsed time method, and her claim for retirement benefits was denied because she failed to meet the minimum 10 years of vesting service required under the Plan for employees who terminated their employment prior to 1989. The Plaintiffs contend that it was improper for the Plan to use the elapsed time method for pre-1976 service, and consequently, that the denial of her benefits was in error. Plaintiff Eva Juneau seeks retirement benefits for alleged employment with Hilton properties between April 22, 1991 and Nov. 10, 2000. The Defendants informed Plaintiff Juneau by letter dated Feb. 4, 2015 that a portion of her claimed employment was not reflected in their records, and asked her to submit additional evidence of that employment. Despite this and another opportunity to do so, no additional evidence was provided, and the claim was denied. The Plaintiffs allege, however, that records requested and received from the Defendants do not identify any non-participating property that is also not a Related Company. Plaintiff Peter Betancourt seeks benefits as an alleged beneficiary of his father, Pedro Betancourt, who worked for Hilton between 1947 and 1979, and died in 1985. His claim was denied by letter dated June 3, 2015, which indicated that the applicable Plan document does not provide for a death benefit to anyone other than the surviving spouse, and because Defendants determined that his claim was untimely. The Complaint alleges that Betancourt is vested. As reported in the Class Action Reporter on April 6, 2022, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia denied the Plaintiffs' Second Renewed Motion for Class Certification. Judge Kollar-Kotelly concluded that the Plaintiffs' proposed class remains impermissibly "fail-safe," as presently defined. This precludes certification. As the Court explained when confronting the Plaintiffs' last proposed class definition, a fail-safe class exists where the class definition "depends on the merits of the underlying claim." Put otherwise, a fail-safe class arises where the class "is defined so that whether a person qualifies as a member depends on whether the person has a valid claim." The Plaintiffs now seek a review of this order. The appellate case is captioned as In re: Valerie White, et al., Case No. 22-8001, in the United States Court of Appeals for the District of Columbia Circuit, filed on April 5, 2022.[BN] Plaintiffs-Petitioners Valerie R. White, Eva Juneau, and Peter Betancourt, individually and on behalf of all others similarly situated, are represented by: Stephen Robert Bruce, Esq. STEPHEN R. BRUCE LAW OFFICES 1667 K Street, NW, Suite 410 Washington, DC 20006 Telephone: (202) 371-8013 E-mail: stephen.bruce@prodigy.net Defendants-Respondents HILTON HOTELS RETIREMENT PLAN, et al., are represented by: Andrew McHie Lacy, Esq. SIMPSON THACHER & BARTLETT 900 G Street, NW Washington, DC 20001 Telephone: (202) 636-5500 E-mail: alacy@stblaw.com - and - Jonathan K. Youngwood, Esq. SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017-3954 Telephone: (212) 455-2000 HOLIDAY HAVEN: Fuerst Ittleman Attorney Discusses Court Ruling -------------------------------------------------------------- Jeffrey Molinaro, Esq., of Fuerst Ittleman David & Joseph, in an article for JD Supra, reports that on March 9, 2022, the Eleventh Circuit Court of Appeals denied a petition for permission to appeal an order remanding a case removed to federal court under the Class Action Fairness Act ("CAFA"). In its ruling denying the petition for permissive appeal, the Court addressed the issue of whether an appellate court has jurisdiction to review an order remanding a case brought under CAFA when that order was issued by the district court sua sponte. In holding that it lacked such jurisdiction, the Eleventh Circuit has created a circuit split on the issue. The Order of the Court in Ruhlen v. Holiday Haven Homeowners, Inc., No. 21-90022 (11th Cir. March 9, 2022) can be read here. Ruhlen stems from an action initially brought in Florida state court by a group of mobile homeowners and their association against various defendants alleging violations of the Florida Antitrust Act and the Americans with Disabilities Act ("ADA"). Plaintiffs filed suit not as a class action under Florida Rule of Civil Procedure 1.220, but instead as a "representative action" under Florida Rule of Civil Procedure 1.222 which allows for mobile homeowners associations to file suits on behalf of homeowners concerning matters of common interest. Defendants removed to the Middle District of Florida based on the ADA and CAFA. While the case was pending in the Middle District, Plaintiffs amended their complaint to remove the ADA claim and added other state-law based claims. Consequently, the Middle District sua sponte issued an order remanding the case back to state court on the basis that federal question jurisdiction no longer existed because: i) only state-law claims remained; and ii) CAFA does not provide for jurisdiction over these claims because they were brought in a "representative capacity" under Fla. R. Civ. P. 1.222. The Middle District found that 1.222 representative claims are not class actions, as the term is understood for CAFA jurisdiction. Defendants then sought permission to appeal the sua sponte remand to the Eleventh Circuit. The appealability of class action remand orders is governed by CAFA and codified at 28 U.S.C. Sec. 1453. Prior to CAFA, a district court's order remanding a class action for lack of subject matter jurisdiction or a defect in the removal process typically was not appealable. 28 U.S.C. Sec. 1447(d). With CAFA's passage, "a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not more than 10 days after entry of the order." 28 U.S.C. Sec. 1453(c)(1). Under CAFA, appellate review is discretionary. Thus, a party seeking review of "an order of a district court granting or denying a motion to remand a class action" must file a petition for permission to appeal with the circuit court under Federal Rule of Appellate Procedure 5. It is through this vessel that the Eleventh Circuit analyzed its jurisdiction. While considering the Petition, the Court studied the phrase "an order of a district court granting or denying a motion to remand a class action" as used in 1453(c)(1) and examined whether it applies in cases where a district court issues a sua sponte remand order. In holding that it did not, the Court found that the word "motion", as the term is ordinarily used, refers to a request made by a party, not an action the court does on its own. The Court considered that an action taken sua sponte is sometimes "colloquially" described as a court acting "on its own motion" and rejected this expansive logic apply to 1453(c)(1): "we find ourselves constrained to conclude (colloquialisms aside) that when a court sua sponte orders a remand, it is not 'granting' its own 'motion' within the meaning of Sec. 1453(c)(1)—any more than it would be 'denying' its own motion in the absence of such an order." The decision of the Eleventh Circuit was not unanimous, as Judge Rosenbaum authored a dissent. In her dissent, Judge Rosenbaum characterized the majority's reading of Sec. 1453(c)(1) as "hypertechnical." Judge Rosenbaum noted that both the Eleventh Circuit and the Supreme Court characterized sua sponte actions as those being "on [the court's] own motion." Thus, the dissent found that based on the Circuit's own definition of the term "sua sponte", such an order would qualify as reviewable under Sec. 1453(c)(1). Judge Rosenbaum reasoned that the phase "granting or denying a motion to remand" with in Sec. 1453(c)(1) was not meant to exclude sua sponte remand orders but to ensure that all remand orders were not subject to either the jurisdictional bar of Sec. 1447(d) or the final judgment rule. Judge Rosenbaum further reasoned that, even if the majority's textualism approach was correct, treating a sua sponte remand order differently that a remand order granting or denying a motion made by a party would be an absurd construction of the CAFA immediate appealability provision of Sec. 1453(c)(1). Judge Rosenbaum detailed how the decision of the Eleventh Circuit is in conflict with how other circuits have expressly or implicitly addressed whether sua sponte remand orders are subject to appellate review under Sec. 1453(c)(1). The Ninth Circuit has expressly found that an appellate court has jurisdiction under Sec. 1453(c)(1) to review sua sponte orders of remand. Watkins v. Vital Pharms, Inc., 720 F.3d 1179, 1181 (9th Cir. 2013); see also Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 789 (9th Cir. 2018). Additionally, although not expressly reaching the issue, the Seventh and Eighth Circuits have both implicitly held that sua sponte remand orders are reviewable under Sec. 1453(c)(1) because each Circuit has accepted jurisdiction of appeals concerning such issues. See Fox v. Dakkota Integrated Sys., LLC, 980 F.3d 1146, 1151 (7th Cir. 2020) (reviewing a sua sponte CAFA remand); Dalton v. Walgreen Co., 721 F.3d 492, 494 (8th Cir. 2013) (same). Judge Rosenbaum also noted that the D.C. Circuit acknowledged that a sua sponte remand order was "properly before [the] court as the remand order falls within section 1453(c)(1)." In re U-Haul Int'l, Inc., No. 08-7122, 2009 WL 902414, at *2 (D.C. Cir. Apr. 6, 2009) (Rogers, J., dissenting from majority's decision to decline jurisdiction over appeal). Judge Rosenbaum further noted that because of the decision, the Eleventh Circuit is the first to hold that sua sponte orders remanding CAFA cases are wholly insulted from appellate review. Whether the issue is ultimately addressed by Congress in an amendment of the statute, or the circuit split is resolved in an appropriate case before the United States Supreme Court remains to be seen. See generally, Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89-90 (2014) (discussing Supreme Court jurisdiction to review denials of petitions for permission to appeal of CAFA cases). For now, practitioners in the Eleventh Circuit must be aware of the Circuit's unique interpretation of its jurisdiction. [GN] HOMOLOGY MEDICINES: Hagens Berman Reminds of May 24 Deadline ------------------------------------------------------------ Hagens Berman urges Homology Medicines, Inc. (NASDAQ: FIXX) investors who suffered significant losses to submit your losses now. A securities fraud class action has been filed and investors with significant losses may have the opportunity to lead the case. Class Period: June 10, 2019 – Feb. 18, 2022 Lead Plaintiff Deadline: May 24, 2022 Visit: www.hbsslaw.com/investor-fraud/FIXX Contact An Attorney Now: FIXX@hbsslaw.com 844-916-0895 Homology Medicines, Inc. (NASDAQ: FIXX) Securities Fraud Class Action: The lawsuit focuses on Homology's statements about the development of its lead product candidate (HMI-102), a gene therapy intended to treat adult patients with phenylketonuria ("PKU"). According to the complaint, Defendants misrepresented and concealed that (1) Homology had overstated HMI-102's efficacy and risk mitigation, and (2) accordingly, it was unlikely that the Company would be able to commercialize HMI-102 in its present form. The complaint alleges investors began to learn the truth on July 21, 2020, when Mariner Research published a report bringing Homology's statements about the efficacy of HMI-102 into serious question. Mariner concluded in part that the Company concealed data showing HMI-102 is not efficacious for high dose Cohort 3 patients and the program is likely worthless and unlikely to proceed to commercialization. Mariner's report also cited an e-mail from the Company's Chief Communications Officer indicating the company was aware of a HMI-102 high dose patient's having posted the adverse efficacy issue in social media during April 2020. Then, on Feb. 18, 2022, Homology announced the FDA has notified it that its pheNIX gene therapy trial for HMI-102 has been placed on clinical hold due to the need to modify risk mitigation measures in the study because of observations of elevated liver function tests. These events drove the price of Homology shares sharply lower. "We're focused on investors' losses and proving Homology lied about HMI-102 data and the therapy's commercial prospects," said Reed Kathrein, the Hagens Berman partner leading the investigation. If you invested in Homology Medicines and have significant losses, or have knowledge that may assist the firm's investigation, click here to discuss your legal rights with Hagens Berman. Whistleblowers: Persons with non-public information regarding Homology Medicines should consider their options to help in the investigation or take advantage of the SEC Whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 844-916-0895 or email FIXX@hbsslaw.com. About Hagens Berman Hagens Berman is a global plaintiffs' rights complex litigation law firm focusing on corporate accountability through class-action law. The firm is home to a robust securities litigation practice and represents investors as well as whistleblowers, workers, consumers and others in cases achieving real results for those harmed by corporate negligence and fraud. More about the firm and its successes can be found at hbsslaw.com. Contact: Reed Kathrein, 844-916-0895 [GN] HOMOLOGY MEDICINES: Vincent Wong Law Reminds of May 24 Deadline --------------------------------------------------------------- Attention Homology Medicines, Inc. ("Homology") (NASDAQ: FIXX) shareholders: The Law Offices of Vincent Wong on April 11 disclosed that a class action lawsuit has commenced on behalf of investors who purchased between June 10, 2019 and February 18, 2022. If you suffered a loss on your investment in Homology, contact us about potential recovery by using the link below. There is no cost or obligation to you. https://www.wongesq.com/pslra-1/homology-medicines-inc-loss-submission-form?prid=25747&wire=4 ABOUT THE ACTION: The class action against Homology includes allegations that the Company made materially false and/or misleading statements and/or failed to disclose that: (i) the Company had overstated the efficacy and risk mitigation of its lead product candidate, HMI-102; (ii) accordingly, it was unlikely that the Company would be able to commercialize HMI102 in its present form; and (iii) as a result, the Company's public statements were materially false and misleading at all relevant times. DEADLINE: May 24, 2022 Aggrieved Homology investors only have until May 24, 2022 to request that the Court appoint you as lead plaintiff. You are not required to act as a lead plaintiff in order to share in any recovery. Vincent Wong, Esq. is an experienced attorney who has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Vincent Wong, Esq. 39 East Broadway Suite 304 New York, NY 10002 Tel. 212.425.1140 E-Mail: vw@wongesq.com [GN] HORNELL BREWING: Faces Class Action Over "All Natural" Claims ------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that the maker of Arizona-brand drinks faces a class action lawsuit for calling its products "all natural." Plaintiff Thomas Iglesias filed the lawsuit March 21 in U.S. District Court for the Northern District of California against Hornell Brewing, alleging violation of the California Consumers Legal Remedies Act, the California False Advertising Law and the California Unfair Competition Law. Iglesias has bought several bottles of Much Mango Fruit Juice Cocktail since 2017 and says he wouldn't have or wouldn't have paid as much had he known "all natural" claims weren't accurate. His lawyers at The Clarkson Law Firm say Hornell is taking advantage of consumers' desire for natural products. Ingredients added for coloring prevent Hornell from claiming its drinks are all natural under Food and Drug Administration rules, the suit says. "Defendant's conduct stifles competition, has a negative impact on the marketplace and reduces consumer choice," the suit says. "There is no practical reason for the false or misleading labeling and advertising of the products, other than to mislead consumers as to the actual ingredients of the products being purchased by consumers while simultaneously providing Defendant with a financial windfall as a result of money saved from lower supply costs." [GN] HOWARD BANK: Brasko's Bid to Certify Class and Subclasses Granted ----------------------------------------------------------------- In the case, RICHARD BRASKO, et al., Plaintiffs v. HOWARD BANK, successor by merger to FIRST MARINER BANK, Defendant, Civil Case No. 1:20-cv-3489-SAG (D. Md.), Judge Stephanie A. Gallagher of the U.S. District Court for the District of Maryland granted the Plaintiffs' motion for certification of a class and two subclasses. I. Background Plaintiffs Richard and Lori Brasko and Eric Rubinstein, on behalf of themselves and a putative class of similarly situated individuals, sued Howard Bank1 alleging violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. Section 2607(a) and the Racketeer Influenced & Corrupt Organizations Act ("RICO"), 18 U.S.C. Section 1962. The Plaintiffs' claims arise out of an alleged kickback scheme between Howard Bank's predecessor, First Mariner, and All Star Title, Inc., a defunct title and settlement services company, whereby First Mariner referred residential mortgage loans to All Star for title and settlement services in exchange for payments from All Star that were allegedly laundered through third-party marketing companies. The Plaintiffs are borrowers who currently have, or previously had, a residential mortgage loan originated and/or brokered by First Mariner. They allege an "illegal kickback agreement" between First Mariner and All Star in which First Mariner allegedly accepted kickbacks from All Star in exchange for referring its borrowers to All Star for title and settlement services. The Plaintiffs allege that, under this arrangement, All Star made kickback payments to third-party marketing companies, who then funneled the money to First Mariner, using sham invoices and payment records to make the kickbacks appear to be legitimate payments for services. To fund the kickbacks, they allege that All Star charged borrowers "unnecessarily increased and higher fees for title and settlement services." The charges included amounts that were, allegedly, not associated with any legitimate title and settlement service and were charged for the sole purpose of funding and ensuring the continuation of the illegal kickbacks. The Plaintiffs have now filed a motion for class certification, seeking the certification of a class and two subclasses. First Mariner opposed the motion, and the Plaintiffs filed a reply. Judge Gallagher has reviewed all of these filings and their attached exhibits. No hearing is necessary. II. Analysis A. Standing As a preliminary matter, First Mariner asserts that the Plaintiffs have not suffered a concrete injury and therefore lack Article III standing. Standing is a doctrine rooted in the traditional understanding of an Article III "case or controversy," citing Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). Standing consists of three elements: "the plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." The burden is on the plaintiffs to establish these elements. First Mariner argues that even if the Plaintiffs could show an unlawful 'kickback' occurred in connection with their loan transactions they still have not shown (and cannot show) that they paid 'increased settlement costs' -- i.e. that All Star overcharged them for settlement services -- as a result of a kickback. As the Plaintiffs argue, however, First Mariner's argument is predicated on a misapplication of RESPA's requirements. Judge Gallagher opines that at this stage, the Plaintiffs have proffered evidence sufficient to support their argument that "All Star and First Mariner agreed to charge borrowers an amount not associated with any legitimate settlement service and for the sole purpose of funding illegal kickbacks." The Plaintiffs have presented evidence that, at the time of their loans, First Mariner had "agreed to" All Star's differential pricing scheme where it would charge borrowers different prices for settlement services depending on whether the borrowers were referred from lenders that received kickbacks from All Star or from lenders that did not receive kickbacks. The Plaintiffs' evidence supports its assertion that First Mariner and All Star had even agreed to specific amounts that All Star would charge First Mariner borrowers "to pay for the kickbacks." Hence, combined with the evidence they have marshaled in support, suffice to demonstrate that it is at least plausible that the entire class has suffered an injury in fact and that the Plaintiffs will ultimately be able to prove each class member's Article III standing. At this point, the evidence is sufficient to demonstrate that if the Plaintiffs' allegations prove true, the named Plaintiffs have suffered a cognizable injury in fact that supports their Article III standing. B. Class Certification i. Readily Identifiable First Mariner does not specifically challenge the identifiability of the putative class. However, the Plaintiffs have provided a spreadsheet "drawn from All Star's business records and Title Express loan processing data," that identifies each class member and provides important information about each member's loan. The putative class is, therefore, readily identifiable. ii. Rule 23(b)(3) The Plaintiffs have moved to certify a class under Rule 23(b)(3), which requires a finding that "the questions of law or fact common to class members predominate over any questions affecting only individual members." As a result, Rule 23(b)(3) class actions "must meet predominance and superiority requirements not imposed on other kinds of class actions. Judge Gallagher holds that (i) while the Plaintiffs will ultimately need to prove that each class member was injured, the fact that they may have been overcharged by different amounts as a result of the kickbacks at issue neither destroys their standing nor the predominance of the common legal and factual issues related to their claims; (ii) the commonality of the kickback scheme and its alleged influence on borrowers' choice of title company and the settlement costs they ultimately incurred predominates over any potential individualized inquiries; (iii) any individualized damages determinations may not require complex analysis or fact-finding and, regardless, the potential need for such determinations does not destroy predominance; and (iv) the potential scope of borrowers is far more limited in time and geography, and individual hearings will not be necessary to determine whether class members encountered information that would have prompted them to uncover the facts substantiating their RESPA claims. In sum, none of the issues raised by First Mariner destroys the predominance of common questions pertinent to each class members' claim. Indeed, some tend to identify more common questions. First Mariner may ultimately prove that a common agreement and pattern of practice, central to the Plaintiffs' theory of liability, did not exist, or were not as pervasive as alleged, but doing so will involve questions of law and fact common to all the class members. In addition to finding that common questions predominate under Rule 23(b), Judge Gallagher holds that the class action vehicle is "superior to other methods" of adjudicating this controversy. Based upon the common questions that predominate, a class action is more efficient than allowing potentially hundreds of individual claims arising from this purported kickback arrangement. Judge Gallagher finds that (i) the Plaintiffs have identified 258 loans that meet the objective class criteria, and First Mariner does not dispute that the numerosity requirement is met; (ii) the Plaintiffs have satisfied their burden, at this stage, to show that the putative class members' claims are typical of one another, and First Mariner's standing arguments do not defeat that showing; and (iii) the Plaintiffs' counsel will adequately represent the putative class. C. Class Definition First Mariner argues that the putative class should be limited to borrowers for whom All Star provided settlement services between March 2012 and April 2013 because the "Plaintiffs have not alleged, let alone demonstrated, any unlawful joint marketing payments by All Star after April 2013." The Plaintiffs have, however, alleged that the First Mariner and All Star participated in the unlawful kickback scheme between 2012-2016. And they have uncovered evidence that, at least arguably, supports that position. To be sure, the Plaintiffs have not "demonstrated" as a matter of fact that they are correct, but that is not their burden at this stage. First Mariner's argument is ultimately a merits-based question that is best left for resolution following merits-based discovery. Accordingly, at this early stage, Judge Gallagher declines to narrow the putative class. III. Conclusion For the reasons she set forth, Judge Gallagher granted the Plaintiffs' Motion for Class Certification. A separate order follows. A full-text copy of the Court's March 30, 2022 Memorandum Opinion is available at https://tinyurl.com/2nk4c37w from Leagle.com. HYATT HOTELS: Proposed Class-Action Alleges Pay, Tip Violations --------------------------------------------------------------- Sarah Freishtat at Chicago Tribune reports that a former Chicago Athletic Association employee alleges in a recent federal lawsuit he and others were stiffed on overtime pay and tips by Hyatt Hotels. The former employee also alleges racial discrimination while he worked at the downtown Chicago hotel and venue, saying in the suit he was demoted "simply because of his race." The lawsuit was filed in U.S. District Court in Chicago by former employee Darren Sanders against Chicago-based Hyatt Hotels and related companies, which operate the Chicago Athletic Association. The lawsuit is seeking class-action status, alleging that a range of employees were affected by "corporate practices" that included improper credit for tips in calculating minimum wage and overtime; "time shaving" that led to unpaid wages; "illegally retained" tips; and other practices. The company violated the federal Fair Labor Standards Act, the Illinois Wage Payment and Collection Act and the Illinois Human Rights Act, the suit alleges. An attorney for Sanders did not immediately respond to a request for comment. Hyatt and the Chicago Athletic Association also did not respond to requests for comment. In the lawsuit, Sanders said he worked for the Chicago Athletic Association from June 2015 to March 2020, first as lead bartender and then as on-call server. During that time, Sanders lost money to "time shaving," where a 30-minute meal break was taken out of his hours "despite that fact that he did not take such break because he was too busy and asked by defendants to perform various tasks," he said in the lawsuit. Sanders was paid an improper rate for overtime, he said in the suit. He was regularly paid $7.69 an hour plus tips and his overtime was calculated as 1 ½ times his paid rate, when his overtime rate should have been based on the actual minimum wage, the suit alleges. For some employees, including Sanders, tips should not have been factored into the calculation of their wages and overtime because the company failed to follow proper tip documentation and notice rules, had tipped employees spend more than 20% of their hours on non-tipped duties, and retained part of employees tips, Sanders alleges in the lawsuit. In his case, the company factored tips into Sanders's wages for all the hours he worked, even though he spent more than 20% of his time on non-tipped duties, according to the lawsuit. That included jobs such as folding tablecloths, breaking down beer bins and setting up silverware, centerpieces and tables. The hotel also had a 21% service charge, yet tipped employees kept 18%, he alleges in the lawsuit. The director of catering kept 2% of banquet tips, according to the lawsuit. Hyatt failed to reimburse Sanders for uniforms that once were free. Other employees faced many of the same circumstances, the lawsuit said. In addition to the wage violations, Sanders, who is Black, also alleges discrimination in the lawsuit. He was demoted from lead bartender to on-call server and faced difficulty advancing in the workplace because of his race. When he was demoted, a director told him she was eliminating the position, according to the lawsuit, and hired a white man for the role two months later. The demotion caused Sanders to lose hours, and his gross earnings fell from $1,700 biweekly to $500, he said in the lawsuit. Other Black workers lost hours too, according to the suit. Sanders is seeking rulings declaring that Hyatt's practices are illegal and preventing the company from continuing them. He is also seeking payment to make up for what he described as time shaving, improper credit for tips, failure to reimburse for uniform costs, and withheld tips, among other payments, penalties and damages. [GN] HYUNDAI MOTOR: Wilson Sues Over Defect in Vehicle Engines --------------------------------------------------------- RYAN WILSON, KRISTEN LEANNE WILSON, BETHANY DORSEL, MARK MEACHUM, and DIANE KOONTZ on behalf of themselves and all others similarly situated, Plaintiffs v. HYUNDAI MOTOR AMERICA, HYUNDAI MOTOR COMPANY, KIA AMERICA, INC., and KIA CORPORATION, Defendants, Case No. 8:22-cv-00771 (C.D. Cal., April 6, 2022) seeks to redress Defendants' alleged violations of the federal Magnuson-Moss Warranty Act, the consumer protection statutes of California, Ohio, Maryland, and New Jersey, and also seeks recovery for Defendants' breach of express warranty, breach of implied warranty, breach of the duty of good faith and fair dealing, and common law fraudulent concealment. This is a class action lawsuit brought by Plaintiffs on behalf of themselves and a national class of current and former owners and lessees with Lambda MPI and Lambda GDI engines installed in Model Year 2010-2020 Hyundai Santa Fe and Santa Fe Sport, 2008-2010 Hyundai Sonata, 2011-2015 Hyundai Equus, 2008-2016 Hyundai Genesis, 2009-2015 Hyundai Genesis Coupe, 2017-present Hyundai Genesis G70, 2016-2020 Hyundai Genesis G80, and 2015-2021 Hyundai Genesis G90 vehicles, as well as Model Year 2011-2020 Kia Sorento and 2017-present Kia Stinger vehicles. The complaint arises from the Defendants' alleged failure to disclose to Plaintiffs and similarly situated consumers, despite their longstanding knowledge, that the engines in the Class Vehicles contain, inter alia, a latent manufacturing defect that causes the engine's rotating assembly, inclusive of the connecting rod bearings and engine block, to prematurely wear to the point that the internal engine components become seized and/or pierce the engine block, which causes the engine to suddenly stop while the vehicles are being operated. The defect may cause the engines in the Class Vehicles to experience sudden and unexpected vehicle stalling during operation, as well as catastrophic engine failure. Moreover, as many consumers have reported, the defect can also result in engine compartment fires, the complaint says. As a result of the defect and the monetary costs associated with attempting to repair the defect, Plaintiffs and the Class Members have suffered injury in fact, incurred damages, and have otherwise been harmed by Defendants' alleged conduct, asserts the complaint. Hyundai Motor America manufactures and retails automobiles.[BN] The Plaintiffs are represented by: Matthew D. Schelkopf, Esq. Joseph B. Kenney, Esq. SAUDER SCHELKOPF LLC 1109 Lancaster Avenue Berwyn, PA 19312 Telephone: (610) 200-0581 E-mail: mds@sstriallawyers.com jbk@sstriallawyers.com - and - Bonner Walsh, Esq. WALSH PLLC 1561 Long Haul Road Grangeville, ID 83530 Telephone: (541) 359-2827 Facsimile: (866) 503-8206 E-mail: bonner@walshpllc.com - and - Adam Gonnelli, Esq. LAW OFFICE OF ADAM R. GONNELLI, L.L.C. 707 Alexander Road Building 2, Suite 108 Princeton, NJ 08540 Telephone: (917) 541-7110 Facsimile: (315) 446-7521 E-mail: adam@arglawoffice.com - and - Alison M. Bernal, Esq. NYE, STIRLING, HALE & MILLER, LLP 33 West Mission Street, Suite 201 Santa Barbara, CA 93101 Telephone: (805) 963-2345 Facsimile: (805) 284-9590 E-mail: alison@nshmlaw.com ILLINOIS INSTITUTE: Court Dismisses Hernandez Suit With Prejudice ----------------------------------------------------------------- In the case, OMAR HERNANDEZ, individually and on behalf of all others similarly situated, Plaintiff v. ILLINOIS INSTITUTE of TECHNOLOGY, Defendant, Case No. 20-cv-3010 (N.D. Ill.), Judge Franklin U. Valderrama of the U.S. District Court for the Northern District of Illinois, Eastern Division, dismissed the Plaintiff's Second Amended Complaint with prejudice. I. Background Plaintiff Hernandez, a student at Defendant Illinois Institute of Technology (IIT), brought a five-count SAC, individually and as a class action, against IIT following IIT's decision to transition to remote instruction in response to the COVID-19 pandemic. IIT is a nonprofit higher education institution with a campus in Chicago, Illinois. In Spring 2020, Hernandez was enrolled as a full-time student at IIT, and had paid his Spring 2020 tuition and mandatory fees for the semester. On March 9, 2020, Illinois Governor J.B. Pritzker, in response to the COVID-19 pandemic, issued a disaster proclamation for the State of Illinois. On March 20, 2020, Governor Pritzker issued Executive Order 2020-10. The March 20 Executive Order, among other things, ordered citizens to stay at home, prohibited public gatherings, and closed public schools. In light of the COVID-19 pandemic, on March 12, 2020, IIT, along with most universities and colleges across the United States, moved from in-person to online instruction. Specifically, IIT told its students that all classes would be moving to an on-line only format following spring break and strongly encouraged all students to "make plans not to return to campus until further notice and finish the semester from home, if at all possible." That same week, IIT closed all its libraries and the SportsCenter. On March 20, 2020, students were prohibited from returning to campus absent extraordinary circumstances, and those who had returned to campus were restricted to their dorms, dining halls, and travel for essential services only. During the campus closure, Hernandez and other IIT students continued to receive academic instruction online, but did not have access to campus facilities or other in-person campus events and opprotunities. On May 20, 2020, Hernandez, individually and on behalf of others, brought a five-count complaint against IIT. Hernandez subsequently filed a first amended complaint (FAC). IIT moved to dismiss the FAC pursuant to Rule 12(b)(6) (R. 35), which the Court granted in a Memorandum Opinion and Order (FAC Order). The Court allowed Hernandez leave to file a second amended complaint. Hernandez filed a SAC, once again asserting five counts against IIT in an individual and class action lawsuit. Count I alleges breach of contract (Tuition Class); Count II asserts an unjust enrichment claim in the alternative (Tuition Class); Count III asserts a breach of implied contract in the alternative (Tuition Class); Count IV alleges a breach of contract (Fees Class): and Count V asserts unjust enrichment in the alternative (Fees Class). IIT moves to dismiss the SAC pursuant to Federal Rules of Civil Procedure 12(b)(6). II. Analysis IIT advances three arguments in support of dismissal of Hernandez's SAC. First, IIT maintains that Hernandez seeks damages for academic malpractice, a claim not recognized under Illinois law. Second, even if Hernandez's academic malpractice claim is a recognized cause of action, IIT contends that Hernandez fails to allege a breach of contract. Third, Hernandez does not and cannot establish that IIT was unjustly enriched or breached an implied contract. A. Educational Malpractice IIT argues that the SAC should be dismissed in its entirety because Hernandez's breach of contract, unjust enrichment, and breach of implied contract claims are actually claims for educational malpractice, and such claims are not recognized in Illinois. Hernandez denies that his claims allege educational malpractice because he is not asking the Court to evaluate whether IIT provided Hernandez and other students with an effective education. Instead, Hernandez contends that his breach of contract and unjust enrichment claims are based on IIT's failure to provide on-campus, in-person instruction and services, which Hernandez and other students paid for. Judge Valderrama agrees with Hernandez. However, as the Court previously held, "this is a classic breach of contract case." He opines that IIT has not advanced any arguments in its motion to dismiss the SAC that change the Court's analysis that "IIT's attempts to recast Hernandez's claim as one for educational malpractice fails." Therefore, for the reasons stated and articulated in the FAC Order, Judge Valderrama finds that Hernandez does not allege a noncognizable educational malpractice claim in his SAC. He now turns to whether Hernandez has sufficiently alleged claims for breach of contract, unjust enrichment, and breach of implied contracts. B. Breach of Contract In Counts I and IV, Hernandez asserts breach of contract claims. He asserts Count I on behalf of the Tuition Class and alleges that in exchange for tuition, IIT would enroll the students and grant them full access to campus activities and live, in-person instruction. He maintains that IIT breached this contract when it moved to online-only learning platforms without reducing or refunding tuition. Count IV is brought on behalf of the Fees Class and alleges that students paid IIT certain mandatory fees in exchange for certain on-campus services and activities. Hernandez alleges that IIT similarly breached this contract when IIT closed most campus buildings and canceled most student activities without refunding students pro-rata shares of fees paid. Judge Valderrama holds that just as other courts in the District have dismissed nearly identical breach of contract claims for failure to identify a specific contractual for in-person classes, activities, and services, so too must the Court. He finds, in viewing allegations of the SAC in the light most favorable to Hernandez, as he must, that the SAC fails to sufficiently plead a breach of contract action based on the payment of tuition and mandatory fees. Accordingly, IIT's Motion to Dismiss Counts I and IV is granted. C. Unjust Enrichment In Counts II and V, Hernandez asserts claims for unjust enrichment in the alternative to his breach of contract claims. To state an unjust enrichment cause of action under Illinois law, Hernandez must allege that IIT has unjustly retained a benefit to its detriment and that IIT's retention of the benefit violates the fundamental principles of justice, equity, and good conscience. IIT argues that Hernandez's claim for unjust enrichment must be dismissed because the incorporation of express contractual terms, alone, mandates dismissal of an unjust enrichment claim. Judge Valderrama agrees. Like Hernandez's breach of contract claims, he says, nearly identical unjust enrichment claims have been considered and dismissed by other courts in the District because each unjust enrichment claim was also premised on the defendant-university's failure to fulfill contractual terms. All in all, Judge Valderrama finds that Hernandez fails to state a claim for unjust enrichment. Accordingly, he dismisses Counts II and V. D. Breach of Implied Contract In Count III, Hernandez asserts a breach of implied contract claim, again in the alternative to his breach of contract claims. The elements of both an implied and express contract are the same under Illinois law: Offer, acceptance, and consideration. IIT contends that, consistent with the Court's ruling in its FAC Order, that a cause of action for implied contract is not permitted in the educational setting. As the Court previously noted, IIT's marketing materials, residency requirements, and registrar descriptions do not identify a specific contractual promise for in-person education. Hernandez cannot use implied contract theory as an end-run around his obligation to identify a specific contractual promise from IIT for in-person classes and on-campus activities and services. Thus, the facts alleged in the SAC cannot support a claim for breach of contract. Hernandez does not even attempt to respond to this argument in his Response. As such, he waives any response. The only argument he makes that can be read as one supporting this breach of implied contract claim is a statement of law in support of his contract claims more generally: "Because the existence of an implied contract depends on facts, circumstances, and expressions by the parties" where the facts are disputed, "the existence of a contract is a question for the trier of fact to decide." Not only does this argument fail to explain why the Court should change its holding from the FAC and find that Hernandez can state a cognizable claim for breach of implied contract, but it also includes inapplicable language from Trapani. Trapani also holds that "generally, whether a contract implied in fact exists is a question of law" and states that only when "facts are disputed is the existence of a contract a question for the trier of fact to decide." But once again, neither IIT nor Hernandez dispute that a contract existed between them. As such, Count III must also be dismissed. III. Conclusion For the foregoing reasons, Judge Valderrama granted IIT's Motion to Dismiss Hernandez's SAC. Given that it is Hernandez's third pleading attempt, the dismissal is with prejudice. The civil case is terminated. A full-text copy of the Court's March 30, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/3vbcuk56 from Leagle.com. INT'L BUSINESS: Bernstein Liebhard Reminds of June 6 Deadline ------------------------------------------------------------- Bernstein Liebhard LLP, a nationally acclaimed investor rights law firm, reminds investors of the deadline to file a lead plaintiff motion in a securities class action lawsuit that has been filed on behalf of investors who purchased or acquired the securities of International Business Machines Corporation ("IBM" or the "Company") IBM between April 4, 2017 and October 20, 2021, inclusive (the "Class Period"). The lawsuit was filed in the United States District Court for the Southern District of New York and alleges violations of the Securities Exchange Act of 1934. Plaintiff alleges that Defendants fraudulently shifted billions of dollars in revenues from IBM's mainframe line of business to its Strategic Imperatives and Cloud, Analytics, Mobile, Security, and Social ("CAMSS") line of business. Defendants thus propped up revenues for these lines, increased their long-term incentive compensation, and appeased the investing community while waiting for the Company's new business model to come to fruition. Plaintiff alleges that IBM partially disclosed evidence of this fraud after the close of the market on October 16, 2018, when Defendants revealed a shortfall in revenue and disappointing 3Q2018 growth associated with the Company's Strategic Imperatives and CAMSS lines of business, particularly its Cloud business line. IBM's stock price fell approximately $11 per share by the close of trading on October 17, 2018. On October 20, 2021, after the close of the market, the Company issued a press release announcing its 3Q2021 results. The Company announced total revenues for the quarter of $17.62 billion, a shortfall of $191.84 million based on analyst estimates. The main culprit was the Cloud & Cognitive Software segment, which had revenues of $5.69 billion, a shortfall of approximately $80 million based on analyst estimates of $5.77 billion. Over 42% of the $191 million shortfall was attributable to the Company's Cloud & Cognitive Software segment - where most of the strategic revenue produced by the fraudulent scheme and wrongful reclassification of revenues from non-strategic to strategic historically went. On this news, the price of IBM common stock fell more than 9%, closing at $121.07 per share on October 21, 2021. If you wish to serve as lead plaintiff, you must move the Court no later than June 6, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased IBM securities, and/or would like to discuss your legal rights and options please visit International Business Machines Corporation Shareholder Class Action Lawsuit or contact Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. Contact Information: Peter Allocco Bernstein Liebhard LLP https://www.bernlieb.com (212) 951-2030 pallocco@bernlieb.com [GN] INTERNATIONAL BUSINESS: Rosen Law Reminds of June 6 Deadline ------------------------------------------------------------ WHY: Rosen Law Firm, a global investor rights law firm, announces the filing of a class action lawsuit on behalf of purchasers of the securities of International Business Machines Corporation (NYSE: IBM) between April 4, 2017 and October 20, 2021, inclusive (the "Class Period"). A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than June 6, 2022. SO WHAT: If you purchased IBM securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the IBM class action, go to https://rosenlegal.com/submit-form/?case_id=5104 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than June 6, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Strategic Imperatives Revenue and growth, CAMSS (the sectors of "Cloud," "Analytics," "Mobile," "Security," and "Social") and CAMSS Components' revenue and growth, and the Company's Segments' revenue and growth were artificially inflated as a result of the wrongful reclassification of revenues from non-strategic to strategic to make those revenues eligible for treatment as Strategic Imperatives Revenue; (2) IBM's present success and positive future growth prospects concerning its Strategic Imperative business strategy were being fueled by the wrongful reclassification of revenues from non-strategic to strategic to make those revenues eligible for treatment as Strategic Imperative Revenue; (3) as a result of the foregoing, defendants misled the market by portraying IBM's Strategic Imperative's financial performance and future prospects more favorable than they actually were as a result of the fraudulent scheme and/or the wrongful reclassification of revenues from non-strategic to strategic to make those revenues eligible for treatment as Strategic Imperatives; and (4) Total Revenue and IBM's Segments' revenue and growth were artificially inflated as a result of the fraudulent scheme and/or the wrongful reclassification of revenues from non-strategic to strategic and/or the wrongful recognition of revenue. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the IBM class action, go to https://rosenlegal.com/submit-form/?case_id=5104 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Attorney Advertising. Prior results do not guarantee a similar outcome. [GN] INTERNATIONAL BUSINESS: Vincent Wong Reminds of June 6 Deadline --------------------------------------------------------------- Attention International Business Machines Corporation ("IBM") (NYSE: IBM) shareholders: The Law Offices of Vincent Wong on April 11 disclosed that a class action lawsuit has commenced on behalf of investors who purchased between April 4, 2017 and October 20, 2021. If you suffered a loss on your investment in IBM, contact us about potential recovery by using the link below. There is no cost or obligation to you. https://www.wongesq.com/pslra-1/international-business-machines-corporation-loss-submission-form?prid=25750&wire=4 ABOUT THE ACTION: The class action against IBM includes allegations that the Company made materially false and/or misleading statements and/or failed to disclose that: (i) Strategic Imperatives Revenue and growth, CAMSS and CAMSS Components' revenue and growth, and the Company's Segments' revenue and growth were artificially inflated as a result of the wrongful reclassification of revenues from non-strategic to strategic to make those revenues eligible for treatment as Strategic Imperatives Revenue; (ii) the Company's present success and positive future growth prospects concerning its Strategic Imperative business strategy were being fueled by the wrongful reclassification of revenues from non-strategic to strategic to make those revenues eligible for treatment as Strategic Imperative Revenue and, as a result (iii) the Company misled the market by portraying the Company's Strategic Imperative's financial performance and future prospects more favorable than they actually were as a result of the wrongful reclassification of revenues from non-strategic to strategic to make those revenues eligible for treatment as Strategic Imperatives. DEADLINE: June 6, 2022 Aggrieved IBM investors only have until June 6, 2022 to request that the Court appoint you as lead plaintiff. You are not required to act as a lead plaintiff in order to share in any recovery. Vincent Wong, Esq. is an experienced attorney who has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Vincent Wong, Esq. 39 East Broadway Suite 304 New York, NY 10002 Tel. 212.425.1140 E-Mail: vw@wongesq.com [GN] JOHNSON & JOHNSON: Cream Contains Toxic Chemicals, Horowitz Says ---------------------------------------------------------------- JONATHAN HOROWITZ and DALIT COHEN, on behalf of themselves and all others similarly situated, v. JOHNSON AND JOHNSON CONSUMER, INC., Case No. 2:22-cv-02432 (C.D. Cal., April 11, 2022) is a civil class action brought by the Plaintiffs on behalf of all consumers who purchased Neutrogena Healthy Skin Firming Cream with Broad Spectrum (SPF 28) for normal, household use. The Product is allegedly defective because, undisclosed to consumers, it contains benzophenone, a harmful chemical, known carcinogen, and endocrine disruptor. Benzophenone's presence in food products or food packaging is banned in the United States. Similarly, under California's Safe Drinking Water and Toxic Enforcement Act of 1986, benzophenone is "listed as causing cancer," and there is no safe harbor for benzophenone in any personal care products, including sunscreens, anti-aging creams, and moisturizers. The Defendant formulates, designs, tests, manufactures, markets, advertises, distributes, and sells the Product to consumers throughout the United States, including California and New York. The Product is available for purchase online and at thousands of retail locations throughout the United States, including big box stores and drug stores in California and New York. The Defendant allegedly failed to detect or prevent the benzophenone contamination in its Products, and Plaintiffs and consumers were harmed as a result of Defendant's failure. According to the complaint, the Defendant represents that the Product is safe for its intended use, but it actually contains benzophenone at the time of purchase, and prospective consumers are unaware of this fact because the chemical is not included on the Products' ingredients list or packaging. The Plaintiffs seek damages and equitable remedies for themselves, and for Defendant manufactures, markets, advertises, and distributes the Product throughout the United States. The Defendant created and/or authorized the false, misleading, omitting, and deceptive advertisements, packaging, and labeling of the Product. Neutrogena has been a top-selling cosmetic brand since it was founded in 1930, and its products are available for purchase at major retail stores throughout the United States, including Walmart, Target, Walgreens, and CVS stores. Neutrogena has consistently positioned itself as "the Dermatologist Recommended skincare brand." Similarly, the Product's package states that it is "Dermatologist Recommended" and "Hypo-allergenic." Benzophenone is associated with a wide range of toxicities, including genotoxicity, carcinogenicity, and endocrine disruption. 12 It is also notorious for inducing dermatological pathologies, including contact dermatitis, erythema, urticaria, and photoinduced dermatitis. The United States prohibits the use of benzophenone in food products and food packaging. In California, "benzophenone is on the Proposition list because it can cause cancer," and there is no "safe harbor" for benzophenone in any personal care products, including sunscreens, anti-aging creams, and moisturizers.[BN] The Plaintiff is represented by: Alex R. Straus, Esq. Nick Suciu, III, Esq. Jennifer Czeisler, Esq. Russell Busch, Esq. Virginia Ann Whitener, Esq. Alex Honeycutt, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 280 S. Beverly Drive Beverly Hills, CA 90212 Telephone: (917) 471-1894 Facsimile: (615) 921-6501 E-mail: astraus@milberg.com nsuciu@milberg.com jczeisler@milberg.com rbusch@milberg.com gwhitener@milberg.com ahoneycutt@milberg.com KDVH ENTERPRISES: Wins Bid to Dismiss & Arbitrate in Cooley Suit ---------------------------------------------------------------- In the case, TASHA COOLEY, individually and on behalf of all others similarly situated, Plaintiff v. KDVH ENTERPRISES, LLC D/B/A BENTON NISSAN OF HOOVER, Defendant, Case No. 2:21-cv-802-AMM (N.D. Ala.), Judge Anna M. Manasco of the U.S. District Court for the Northern District of Alabama, Southern Division, granted the Defendant's Motion to Dismiss and to Compel Arbitration. I. Background On June 14, 2021, Plaintiff Cooley filed the class action complaint against Benton, alleging that Benton "initiated non-emergency telephone calls to the cellular telephones of Ms. Cooley and other members of the Class to deliver prerecorded messages for the purpose of telemarketing" without "obtaining prior express written consent to initiate the calls" in violation of the Telephone Consumer Protection Act, 47 U.S.C. Sections 227, et seq. ("the TCPA"). Ms. Cooley alleges that the "prerecorded message calls were intended to promote Benton's business, goods and services, and/or sell Ms. Cooley a vehicle." Ms. Cooley asserts that those "unsolicited prerecorded messages caused her harm, including invasion of privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion," as well as "inconvenienced Ms. Cooley and caused disruption to her daily life." On July 14, 2021, Benton filed its Motion to Dismiss and to Compel Arbitration. On July 28, 2021, Ms. Cooley filed her Response in Opposition to Defendant's Motion to Dismiss and to Compel Arbitration. On July 30, 2021, Benton filed its reply. II. Analysis The Federal Arbitration Act ("the Act") applies to a written contract "evidencing a transaction involving commerce" and provides that an arbitration clause within the contract "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." Benton asserts that, "in connection with her purchase of a motor vehicle on March 13, 2014 from Crown Nissan, Inc. ('Crown'), Ms. Cooley signed an Arbitration Agreement." Benton asserts that Crown "is a predecessor in interest to Benton" because, "on April 29, 2014, after Ms. Cooley's purchase, Benton entered into an agreement with Crown for Benton to purchase substantially all of the assets of Crown," including "Crown's right, title and interest in Crown's sales records, customer lists and other customer data including deal jackets." Benton asserts that "the deal file for the transaction between Ms. Cooley and Crown is part of what was sold and assigned to Benton by Crown." Benton asserts that the deal file contained the purchase agreement between Ms. Cooley and Crown, which agreement contains the Arbitration Agreement. Accordingly, "Benton contends that it, as an assignee of Crown, was given by Ms. Cooley the right to contact her as alleged in the Complaint." In response, Ms. Cooley asserts that Benton's motion should be denied because "Benton has not supported its argument that it is entitled to enforce a Purchase Agreement between Plaintiff and Crown." Specifically, she asserts that "Benton does not actually submit the agreement between it and Crown Nissan, and only submits a portion of the Purchase Agreement between Ms. Cooley and Crown Nissan." According to Ms. Cooley, "without both entire agreements, it is impossible for the Court to determine whether Ms. Cooley's TCPA claims against Benton should be sent to arbitration." Ms. Cooley asserts that "Benton simply concludes that it can enforce the agreements, relying solely on the self-serving statement of one of its employees." Judge Manasco finds that Benton has established that an enforceable arbitration agreement exits between it and Ms. Cooley. Other than asserting that Benton failed to produce the assignment agreement between it and Crown, Ms. Cooley does not present evidence or argument that contradicts Ms. Reeves' testimony that Benton was assigned the purchase agreement. Nor does Ms. Cooley assert that the arbitration agreement itself is invalid. Accordingly, "as an assignee, Benton simply stepped into the shoes of the assignor, Crown, a signatory to the arbitration agreement," and that valid assignment gives Benton the same rights, benefits, and remedies that Crown possesses, including "the right to compel arbitration." Next, Benton must prove "that the underlying contract evidences a transaction affecting interstate commerce." Benton asserts that Ms. Cooley's "purchase of a motor vehicle involved and affected interstate commerce." Ms. Cooley has not contested Benton's assertion. Accordingly, Judge Manasco holds that their transaction involved commerce. Because Benton has met its burden of proving the existence of an enforceable arbitration agreement and that the underlying contract affects interstate commerce, "the burden shifts to Ms. Cooley to present evidence either that the arbitration agreement is not valid or that it does not apply to the dispute in question." Judge Manasco finds that the arbitration provision delegates disputes involving "the terms of the purchase agreement and all clauses therein contained, their breadth and scope, and any term of any agreement contemporaneously entered into by the parties" to the arbitrator. And Ms. Cooley does not challenge the delegation provision directly. Because this delegation provision clearly and unmistakably evinces the parties' agreement to arbitrate the gateway questions of arbitrability, the arbitrator must determine the scope of the agreement. Because Ms. Cooley has not cited any support for her waiver argument, and in light of the parties' ability to state alternative defenses under Rule 8(d), Judge Manasco cannot conclude that Benton has waived its right to assert enforcement of the delegation clause by merely presenting an argument that Ms. Cooley's claims are within the scope of the arbitration agreement. She already has held that Benton has sufficiently shown that it is a successor-in-interest to the purchase agreement between Ms. Cooley and Crown, and that Ms. Cooley does not contest that she is a signatory to that agreement. Finally, Benton requests that the action "be dismissed without prejudice, or stayed pending the completion of arbitration." Ms. Cooley does not take a position on whether the case should be dismissed or stayed pending arbitration. Accordingly, Judge Manasco dismisses Ms. Cooley's claims without prejudice. III. Conclusion For the foregoing reasons, Judge Manasco granted Benton's motion to dismiss and compel arbitration. A full-text copy of the Court's March 30, 2022 Memorandum Opinion is available at https://tinyurl.com/2p97bths from Leagle.com. KELLOGG CO: Judge Tosses Class Action Over Strawberry Pop-Tarts --------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that a New York federal judge has tossed a proposed class action lawsuit that complained the strawberry filling in Pop-Tarts contains other fruits and dyed red to mislead customers. "To the extent the label contains any ambiguity about the presence or amount of strawberries in the product, in the Second Circuit, courts are to consider 'disclaimers and qualifying language,'" Judge Andrew Carter wrote on March 31. "Here, the reasonable consumer would overcome any confusion by referring to the unambiguous ingredient list on the packaging." New York attorney Spencer Sheehan of Sheehan & Associates sued Kellogg in New York federal court in September 2020, claiming consumers wouldn't know from glancing at the label that Strawberry Pop-Tarts contain pears and apples, as disclosed in the ingredients list on the package. He also claimed red dye only increased the confusion, leading consumers to believe Pop-Tarts are healthy snacks containing fresh strawberries. Kellogg's lawyers filed a motion to dismiss refuting each of Sheehan's claims. The confusion he says named plaintiff Kelvin Brown suffered "does not pass the straight face test," Kellogg said, let alone the standard the U.S. Supreme Court laid down in its landmark Ashcroft v. Iqbal decision, which requires plaintiffs to present facts supporting the plausibility of their claims. "No reasonable consumer equates a Pop-Tart to a bushel of strawberries, and it strains credulity to believe that a consumer would purchase Frosted Strawberry Pop-Tarts because they provide Vitamin C, antioxidants, or other `health-related benefits,'" Kellogg's lawyers at Jenner & Block said Sheehan failed to state a claim under the New York General Business Law, Judge Carter wrote, because he failed to prove a reasonable consumer would be misled by the packaging. "Courts typically find misleading representations about ingredients when the product label explicitly asserts that is made with a specific ingredient or specifies the quantity of an ingredient when the ingredient is not predominant in the product," he wrote. "No reasonable consumer would see the entire product label, reading the words 'Frosted Strawberry Pop-Tarts' next to a picture of a toaster pastry coated in frosting, and reasonably expect that fresh strawberries would be the sole ingredient in the product." [GN] KISLING NESTICO: Class Certification in Williams Suit Affirmed -------------------------------------------------------------- In the case, MEMBER WILLIAMS, et al., Appellees v. KISLING, NESTICO, & REDICK, LLC., et al., Appellants, C.A. Nos. 29630, 29636 (Ohio App.), the Court of Appeals of Ohio for the Ninth District, Summit County, affirmed in part and reversed in part the judgment granting in part and denying part the motion to certify class. Appellants Dr. Sam Ghoubrial and the law firm of Kisling, Nestico, and Redick ("KNR") appeal the judgment of the Summit County Court of Common Pleas. I. Background The instant appeal arises out of a class action lawsuit alleging unlawful business practices by KNR and several healthcare providers. The trial court ultimately certified two classes pursuant to Civ.R. 23, one involving an alleged price-gouging scheme and the other involving an alleged bogus investigation fee charged by KNR. The matter was pending in the Summit County Court of Common Pleas for several years before the sixth amended complaint was filed with leave of court in 2019. A number of defendants and claims were added as the litigation progressed over time. In the sixth amended complaint, the named class representatives were Member Williams, Thera Reid, Monique Norris, and Richard Harbour, all of whom were KNR clients who sought treatment from healthcare providers recommended by the firm. The named defendants were Dr. Ghoubrial, Dr. Minas Floros, and KNR, as well as Alberto Nestico and Robert Redick in their capacities as owners of KNR. Dr. Ghoubrial is a medical doctor who operates a pain management clinic. Dr. Floros is a chiropractor who frequently treats individuals involved in car accidents. KNR is a law firm with a large personal injury practice. The sixth amended complaint alleged three fraudulent schemes perpetrated by KNR. The first set of claims involved an alleged price-gouging scheme between KNR and certain healthcare providers. Specifically, the Plaintiffs sought to pursue claims of fraud, breach of fiduciary duty, unjust enrichment, unconscionable contract, and violations of the Ohio Corrupt Practices Act on behalf of KNR clients who were allegedly charged "exorbitantly inflated prices for medical treatment and equipment provided by KNR's 'preferred' healthcare providers pursuant to a price-gouging scheme by which the clients were pressured into waiving insurance benefits that would have otherwise protected them." The named Plaintiffs for these claims were Reid, Norris, and Harbour, in addition to Class A. The second set of claims involved an allegedly fraudulent charge imposed on KNR clients that served as a kickback to chiropractors in KNR's referral network. The Plaintiffs sought to pursue claims of fraud, breach of fiduciary duty, and unjust enrichment on behalf of KNR clients who were allegedly charged "a sham narrative fee that KNR paid as a kickback to select chiropractors as compensation for referrals and participation in the price-gouging scheme." The named Plaintiffs for these claims were Reid and Norris, in addition to Class B. The third set of claims involved an allegedly bogus fee charged to KNR clients for investigative services. The Plaintiffs sought to pursue claims of fraud, breach of contract, breach of fiduciary duty, and unjust enrichment on behalf of former KNR clients who were allegedly charged "a bogus 'investigation' fee deducted from their settlement to pay so-called 'investigators' whose job was primarily to chase new clients down to sign them up before they could sign with a competing firm." The named Plaintiffs for these claims were Williams, Reid, Norris, Harbour, in addition to Class C. With respect to the definition of classes pursuant to Civ.R. 23, the Plaintiffs sought to certify the following three classes: a. Class A: All current and former KNR clients who had deducted from their settlements any fees paid to Defendant Ghoubrial's personal-injury clinic for trigger-point injections, TENS units, back braces, kenalog, or office visits, billed pursuant to the clinic's standard rates from the date of its founding in 2010 through the present. b. Class B: All current and former KNR clients who had deducted from their settlements a narrative fee paid to (1) Dr. Minas Floros of Akron Square Chiropractic, (2) all other chiropractors employed at clinics owned by Michael Kent Plambeck, and (3) certain other chiropractors identified in KNR documents as automatic recipients of the fee, from KNR's founding in 2005 to the present. c. Class C: All current and former KNR clients to whom KNR charged sign-up fees paid to AMC Investigations, Inc., MRS Investigations, Inc., or any other so called investigators or investigation company, from 2008 to the present. The Defendants denied the allegations in their respective answers and asserted a number of affirmative defenses. The parties submitted a bevy of evidence and engaged in extensive briefing on the Plaintiffs' motion for class certification. The trial court permitted supplemental briefing on several issues and held oral arguments. On Dec. 17, 2020, the trial court issued a journal entry granting the motion to certify in part and denying it in part. As to Class A, the trial court found that the claims of fraud, breach of fiduciary duty, unjust enrichment, and unconscionable contract "are appropriate claims for class action against all Defendants except Dr. Floros, and the breach of fiduciary duty claim as to Dr. Ghoubrial." The trial court also found there was no evidence to support the claim alleging violations of the Ohio Corrupt Practices Act claim against any defendant named in regard to Class A. The trial court denied the motion to certify as it pertained to Class B. The trial court granted the motion to certify Class C against KNR, and its individually named owners. KNR has appealed and raises two assignments of error. Dr. Ghoubrial raises one assignment of error. The Court consolidates certain assignments of error to facilitate review. II. Discussion A. KNR's First Assignment of Error & Dr. Ghoubrial's Assignment of Error KNR's First Assignment of Error: The trial court erred in certifying class A -- the price-gouging class on claims one (fraud), two (breach of fiduciary duty), three (unjust enrichment), and four (unconscionable contract) of the Sixth Amended Complaint. Dr. Ghoubrial's Assignment of Error: The trial court erred in certifying class A, the price gouging-class on claims one for fraud, three for unjust enrichment, and four for unconscionable contract from the Sixth Amended Complaint. KNR and Dr. Ghoubrial have raised assignments of error arguing that the trial court abused its discretion in certifying Class A, the price-gouging class, because it failed to conduct a rigorous analysis as required by Civ.R. 23. KNR and Dr. Ghoubrial maintain that it is not possible for the Plaintiffs to establish liability or damages in regard to Class A in a single adjudication with evidence common to all class members. The Court of Appeals holds that while the trial court carefully identified many of the arguments advanced by the parties with respect to the certification of Class A, it failed to ultimately resolve some of the foremost evidentiary conflicts regarding whether the Plaintiffs' claims could be resolved by evidence common to all parties in a single adjudication. Perhaps most notably, the trial court failed to undertake a rigorous analysis of how the Plaintiffs could prove liability with common evidence when the evidence showed that the individual class members were not similarly situated with respect to health insurance coverage. Furthermore, in addressing the contention by KNR and Dr. Ghoubrial that the Plaintiffs could not satisfy the predominance requirement regarding the payment plan because some patients received significant reductions in their charges for medical care, the trial court simply found that this argument was "not persuasive" and cited a number of cases in support of the proposition that individual differences among class members with respect to damages will not defeat class certification. Finally, the trial court did not conduct a rigorous analysis when it summarily concluded that disgorgement was an appropriate remedy. Finally, the trial court did not conduct a rigorous analysis when it summarily concluded that disgorgement was an appropriate remedy. B. KNR's Second Assignment of Error KNR's Second Assignment of Error: The trial court erred in certifying class c (the investigative fee class) on claims nine (fraud), ten (breach of contract), eleven (breach of fiduciary duty), and twelve (unjust enrichment) of the Sixth Amended Complaint. KNR raises a second assignment of error wherein it challenges the trial court's certification of Class C, the investigative fee class. KNR maintains that the trial court ignored the fact that KNR's standard attorney-client contract contained a provision that allowed the firm to seek reimbursement for reasonable expenses. KNR further argues that resolving the controversy in a single adjudication with common evidence would be highly difficult given that the extent of investigative services performed varied from case to case, meaning that an individual analysis of each case would be required in order to determine whether the investigative fee charge was reasonable. The Court of Appeals holds that KNR's argument that the trial court abused its discretion by disregarding the terms of the contractual relationship between the parties is without merit. There is no dispute that the class members entered into an agreement with KNR for legal services and agreed to have certain expenses deducted from their settlements. While KNR emphasizes that all of its clients agreed to be responsible for reimbursement of "reasonable expenses," the gravamen of the alleged fraud is that the investigative fee charge was a sham and bore no rational relationship to any investigative services provided, meaning the clients could not have agreed to the charge. The claims with respect to the investigative fee class are based upon a standardized charge that applied to all class members as well as an alleged common misrepresentation as to the basis for that charge. To the extent that KNR would seek to defend against those claims by demonstrating that the charge was duly incorporated into its standard attorney-client agreement, it has failed to demonstrate on appeal that the trial court abused its discretion in concluding that the issue could be resolved with evidence common to all class members in a single adjudication. Finally, where the alleged fraud involved standardized charges and misrepresentations common to all class members, the Court of Appeals cannot say that the trial court's decision to certify the investigate fee class was unreasonable, arbitrary, or unconscionable. Hence, KNR'S second assignment of error is overruled. III. Conclusion For the foregoing reasons, the Court of Appeals KNR's sustained the first assignment of error. Dr. Ghoubrial's sole assignment of error is also sustained. KNR's second assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed in part and reversed in part and remanded for further proceedings consistent with the decision. There were reasonable grounds for this appeal. The Court of Appeals ordered that a special mandate issue out of the Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of the Journal Entry will constitute the mandate, pursuant to App.R. 27. Immediately upon the filing thereof, the document will constitute the journal entry of judgment, and it will be file stamped by the Clerk of the Court of Appeals at which time the period for review will begin to run. The Clerk of the Court of Appeals is instructed to mail a notice of entry of the judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed equally to both parties. A full-text copy of the Court's March 30, 2022 Decision & Journal Entry is available at https://tinyurl.com/3zsnvxn2 from Leagle.com. BRADLEY J. BARMEN -- brad.Barmen@lewisbrisbois.com -- Attorney at Law, for the Appellant. JAMES M. POPSON -- jpopson@sutter-law.com -- Attorney at Law, for the Appellants. THOMAS P. MANNION -- Tom.Mannion@lewisbrisbois.com -- Attorney at Law, for the Appellants. R. ERIC KENNEDY and DANIEL P. GOETZ, Attorneys at Law, for the Appellants. PETER PATTAKOS -- info@pattakoslaw.com -- and RACHEL HAZELET -- rhazelet@matasarjacobs.com -- Attorneys at Law, for the Appellees. KNOX COUNTY, TN: Law Firm Filed Motion to Get Mask Mandate Fees --------------------------------------------------------------- Jamie Satterfield, writing for Tennessee Lookout, reports that Knox County taxpayers were at risk of footing the legal bills of a San Francisco law firm their elected leaders didn't hire or approve to fight a judicial mask mandate their own government is already fighting on their dime -- until the Tennessee Lookout asked their mayor about it. The Tennessee Lookout on April 7 asked Knox County Mayor Glenn Jacobs to comment on the Dhillon Law Group's request in U.S. District Court for legal fees from Knox County taxpayers in a lawsuit filed on behalf of a "nonincorporated nonprofit association" over a judicial mask mandate for school children. Jacobs, via spokesman Mike Donila, asked for time to respond. Soon after, the Dhillon Group filed a motion to withdraw its request for legal fees. Jacobs' office then issued a written response to the Tennessee Lookout, with the newly-filed motion attached. "Taxpayers are not on the hook for legal fees of any kind other than those being paid to the elected law director and his staff," Donila wrote on behalf of the mayor. Jacobs and State Rep. Jason Zachary, R-Knoxville, in March posted a video on Twitter in which the pair touted the firm's work in COVID litigation and urged citizens to donate money to pay the firm to fight masking students. The firm filed notice in U.S. District Court of its demand for legal fees from taxpayers two days after the video was posted. Knox County Deputy Law Director David Sanders had sounded the alarm on the firm's bid to recoup legal fees from taxpayers, court records show, with no response from the Dhillon Law Group or the mayor's office. Sanders noted in a motion filed April 1 that he is already being paid by taxpayers to fight a judicial mask mandate for Knox County students. He said in the motion that the law firm should be barred from collecting money from Knox County taxpayers and called the firm's lawsuit demands a "fruitless, circuitous remedy." "(Knox County) has vigorously opposed the court's order mandating masks," Sanders wrote in an April 1 motion. "(The lawsuit) asks this court to enjoin (the Knox County Board of Education) from complying with the Court's own injunction." The judicial mask mandate, meanwhile, was lifted March 14. Donila said in a follow-up response on April 7 that Jacobs contacted the Dhillon Law Group after receiving the Tennessee Lookout's request for comment and had been unaware the firm was seeking to bill Knox County for its legal fees. Masks, courts and politics The Knox County Board of Education voted down a mask mandate for students last September. The parents of three Knox County students followed up that vote with a proposed class-action lawsuit filed in U.S. District Court. The lawsuit argued the lives of students with pre-existing health conditions were at risk from COVID unless U.S. District Judge Ronnie Greer stepped in with a temporary judicial mask mandate order. Sanders quickly filed a motion on behalf of Knox County against a mandate. "(The Knox County Board of Education) submits that (a) decision regarding whether to impose a mask mandate is a political one that the court should not intervene in," Sanders wrote. "Ultimately, the elected members of the (school board) will have to answer to the voters." Greer sided with the students' mask-seeking parents in late September and issued a mask mandate for students attending Knox County Schools. He amended his order a month later to allow school officials to consider and, in some cases, grant medical exemptions from the mandate. Sanders appealed Greer's ruling on behalf of Knox County in late October, but the mandate remained in effect pending the outcome of that appeal. The school board was required to enforce it and did so. Four months later, Jacobs and Zachary posted a video on Twitter in which both made a pitch for donations to an organization they identified as Unmask Knox County Kids to help pay the Dhillon Law Group to challenge the judicial mask mandate. "It's incredible the work this firm has done over the last couple of weeks in preparation for this suit in defense of Knox County children," Zachary said in the March 1 video. "But we can't do this with just our donations. We need you to join us. This is going to be a community effort." Raising cash The Unmask Knox County Kids organization is not registered with the IRS or any government agency. The Dhillon Law Group firm said in a court motion that the group is a "nonincorporated nonprofit association" made up of 1,063 Knox County parents, teachers and "concerned" taxpayers. The group has a website that lists Knox County parents Angie Goethert and Andrew Schoenecker as president and treasurer, respectively, and "constitutional rights activist" Laura Branson as secretary. The group did not respond to requests for comment. Its website says the group wants to raise $250,000 to pay the firm's legal bills and had raised $40,231 as of March 10. The only requirement for membership in Unmask Knox County Kids, the group's website says, is the filing of an online form, attesting to an interest either as a Knox County parent, school employee or taxpayer. There is no verification process, according to the website. The website has an "update and news" section. All items in that section are news releases by and about the Dhillon Law Group and its work for the group. Jacobs and Zachary donated $5,000 each to pay the firm, according to their Twitter video. Zachary did not respond to requests for comment on whether he knew the Dhillon Law Group would seek to hold Knox County taxpayers responsible for the firm's legal bills when he donated to the group. Greer lifted his mask mandate March 14 at the request of Sanders and the mask-seeking parents in the original lawsuit, court records show. The two sides are working with a federal mediator and must report back to Greer within 60 days. Meanwhile, the 6th Circuit U.S. Court of Appeals has set a hearing in May to consider whether Greer was wrong to issue a mask mandate in the first place. [GN] LIBERTY MUTUAL: Court Dismisses Safeco & LMG From Suber Class Suit ------------------------------------------------------------------ In the case, ERIC SUBER, et al., on their own behalf and on behalf of all others similarly situated v. LIBERTY MUTUAL INSURANCE GROUP, et al., Civil Action No. 21-4750 (E.D. Pa.), Judge Gerald Austin McHugh of the U.S. District Court for the Eastern District of Pennsylvania: (i) granted in part and denied in part Defendants Liberty Mutual Insurance Co., Liberty Mutual Group, and Safeco Insurance Co.'s motion to dismiss the Complaint; and (ii) denied the Plaintiffs' motion to strike. I. Background The lawsuit is an action seeking class relief related to the denial of auto insurance claims subject to an exclusion related to racing events. Plaintiffs Eric Suber and Mary Lynne Forrey-Suber filed a complaint seeking individual and class relief after their auto insurance claims were denied for an accident involving Mr. Suber's 2021 Porsche 718. LM General Insurance Co. concedes that it issued the auto insurance policy in question. According to letters submitted with the Complaint from agents of LM General and its parent company, Liberty Mutual Insurance Co. ("LMIC"), coverage was denied because the accident was subject to an exclusion for losses that occur when the vehicle is being used for "a. competing in; or b. practicing or preparing for any organized racing, speed, demolition, stunt or performance contest or related activity whether or not for pay." The Plaintiffs contend that participation in certain programs where individuals receive some classroom instruction and then are permitted to drive at high speeds on closed racetracks, which they define as "High-Performance Driving Education" courses, should not be subject to this exclusion because it is not a racing contest nor is it practice for a racing contest. On the basis of this denial, the Plaintiffs bring a class action alleging an illegal scheme to systematically deny otherwise eligible claims from accidents arising at High-Performance Driving Education courses. They allege a breach of contract claim (Count I), violations of the Pennsylvania UTPCPL and other state consumer protection statutes (Count II), assert a bad faith claim (Count III), and seek a declaratory judgment as to the scope of the exclusion (Count IV). In addition to filing suit against carrier LM General, the Subers have also filed suit against the parent company LMIC; the holding company which owns LMIC, Liberty Mutual Group Inc. ("LMG"); and a sister insurance company, also owned under the LMG/LMIC umbrella, Safeco Insurance Company of America. These three Defendants all joined the Motion to Dismiss. Regarding subject matter jurisdiction, the Moving Defendants argue that Plaintiff is unable to establish causation because they did not issue the relevant policy and as a matter of law cannot be held liable for policy-related injuries. They also argue that Pennsylvania Plaintiffs lack standing to bring claims on behalf of a nationwide class. Finally, they argue that the Court lacks personal jurisdiction over the Moving Defendants because they are foreign corporations that are not subject to the Court's general or specific jurisdiction because they are not "at home" here and because the Plaintiffs' claims do not arise out of the Defendants' contacts with Pennsylvania. The Plaintiffs filed responses to the motion, where they point to various correspondence as well as a website to suggest that the individual Moving Defendants had some involvement with the denial of their claims such that dismissal would be inappropriate. With respect to the nationwide class issue, the Plaintiffs argue that it would be inappropriate to make a class standing determination prior to a class certification motion. II. Discussion A. Defendants' Causation Arguments Are Improperly Raised Under Rule 12(b)(1) The Moving Defendants, none of which directly issued the Plaintiffs' policy, argue that because they are not the issuing carriers for the Plaintiffs' policy, they could not have caused their injuries with the result that the Plaintiff lack standing to sue them for the denial of coverage. Judge McHugh finds that this argument suffers from a conceptual flaw. He explains that in Davis v. Wells Fargo, 824 F.3d 333, 338 (3d Cir. 2016), the Court of Appeals observed that the real gist of the motion to dismiss centered on a merits question: Whether the plaintiff's "claims against parent defendant are actually without merit because parent defendant has done nothing wrong." It concluded that to address the argument as a jurisdictional question improperly "raises both the factual and legal burden on the plaintiff." Such a motion is properly brought pursuant to Rule 12(b)(6) for failure to state a claim, which the Defendants have not done in the instant case, Judge McHugh holds. For purposes of Rule 12(b)(1), he says, the Plaintiffs have alleged injury, causation, and remedy in that they were denied coverage, they were monetarily injured by that denial, and damages would constitute a remedy. The Defendants' factual submissions regarding their corporate structure and identity have no bearing on whether the Plaintiffs have a right to bring an action related to the denial of their insurance claims. Therefore, both Defendants' facial and factual challenges to the Court's subject matter jurisdiction fail. B. Personal Jurisdiction over the Individual Defendants The Defendants argue that the Court lacks both general and specific personal jurisdiction. The Plaintiffs effectively concede the Defendants' arguments as to general jurisdiction but argue that specific jurisdiction exists. To establish specific jurisdiction, a defendant must have "certain minimum contacts such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice," citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). This Circuit has distilled International Shoe's standard, as later narrowed by other Supreme Court decisions, into a three-part test: "First, the defendant must have purposefully directed its activities at the forum. Second, the litigation must arise out of or relate to at least one of those activities. And third, the exercise of jurisdiction must comport with fair play and substantial justice." As the Supreme Court has emphasized, the second part of that test requires "a connection between the forum and the specific claims at issue." Judge McHugh states that the relevant issue in the present case is whether any alleged conduct that the Moving Defendants directed at Pennsylvania is connected to the Plaintiffs' specific claims. He finds that at its core, though couched in terms of jurisdiction, the Defendants' motion advances the argument that where the "Plaintiffs' claims revolve around the terms of their policy and the coverage they were allegedly denied," only the carrier can be held liable as the but-for cause of the Plaintiffs' injuries. He says, while it is a reasonable presumption that an insurer will bear primary responsibility for injuries that derive from decisions to deny claims based on policy exclusions, it is not clear to me from current law that a per se rule exists -- or should exist -- to shield entities related to the issuing insurer from liability, without regard to their possible involvement in a decision to issue a denial of coverage. Judge McHugh is particularly reluctant to endorse a per se rule in the context of a parent-subsidiary relationship where a parent company may have financial incentives to orchestrate the actions of subsidiaries directly involved in administering the policy. And any analysis is obviously complicated by the modern disaggregation of business functions into multiple legal entities with complicated and overlapping agents and agency relations. In their briefs, the parties cite a plethora of cases that largely turn on the underlying factual allegations and do not represent binding precedent. Judge McHugh's inquiry is limited to whether the Moving Defendants have directed sufficient activities towards Pennsylvania related to the Plaintiffs' claims, without resort to any special rules or immunities applying to insurance carriers. The Plaintiffs also fail to identify any conduct on the part of Safeco directed at Pennsylvania that is connected to the denial of their insurance claims under their policy. Safeco is not mentioned in any of their policy documents or otherwise elsewhere identified as a provider of their coverage. The Plaintiffs make two factual allegations that they believe supports an inference that "the Subers reasonably believed that Safeco was their insurance company and that Safeco denied their claim," but the allegations in the Complaint and attached exhibits do not plausibly or reasonably support such a belief. Judge McHugh therefore concludes that the Court lacks personal jurisdiction over Safeco because, even assuming the facts as alleged by the Plaintiffs as true, the Plaintiffs have not established "with reasonable particularity sufficient contacts between Safeco and the forum state" that are in any way connected to the claims at issue. The Plaintiffs' claims against LMG, the holding company that owns LM General's parent, LMIC, fail for similar reasons, Judge McHugh finds. They have not plausibly alleged any conduct on the part of LMG or any agents acting on behalf of LMG that might give rise to the injuries alleged or ground sufficient contacts to establish the Court's jurisdiction over them. The Plaintiffs' Complaint and the related exhibits fail to establish any plausible inference that LMG was meaningfully involved in activities directed at Pennsylvania related to the Plaintiffs' claims. Judge McHugh, therefore, concludes that the Court lacks personal jurisdiction over LMG. Finally, Judge McHugh finds that in the exhibits on which the allegations of their Complaint are based, the Plaintiffs include documents reflecting two discrete communications made to them where individuals involved in the investigation and denial of their insurance claims expressly identified themselves as agents of "Liberty Mutual Insurance Company." He says, it is sufficient evidence of contacts directed towards Pennsylvania connected with the denial of the Plaintiffs' insurance claims to ground the Court's personal jurisdiction over LMIC. C. Nationwide Class Claims The Defendants also argue that the Plaintiffs' nationwide class claims must be dismissed for lack of Article III standing. Their standing objection here appears to be a facial challenge, focused on the allegations in the Complaint. The Plaintiffs have alleged that they hold a Pennsylvania auto-insurance policy and that the "racing exclusion" under which they were denied coverage is utilized nationwide. They claim to represent a nationwide class of Liberty Mutual policyholders who were denied coverage under that exclusion, and contend that such denials violate state common law of contracts, state unfair trade practices laws, and state common law of bad faith. The Defendants argue that although the Plaintiffs may have standing to bring a Pennsylvania class action, they are unable to establish standing for related injuries suffered by residents of other states under other state laws. They appear to presume the existence of a per se rule applied by some district courts that, in cases proposing a nationwide class based on state law causes of action, the court must dismiss for want of standing prior to class certification. Judge McHugh holds that while the Plaintiffs' Complaint lacks some specificity as to the consumer protection laws of other states being violated, the nature of their claims as to breach of contract, unfair trade practices, and bad faith suggest that the "success on the claim under one state's law will more or less dictate success under another state's law" sufficient to ground representative class standing. The class certification motion will provide Defendants ample opportunity to contest the adequacy of named Plaintiffs to represent the class, the typicality of their claims, and the predominance of common questions of law or fact, with the burden of persuasion on the Plaintiff to make such showings. Further, given the highly specific nature of the racing exclusion at issue, Judge McHugh anticipates that the Rule 16 conference and the additional grant of discretion to the Court under Rule 23(d) to manage the class action will prove salutary to ensuring that the scope of discovery does not prove overly burdensome. D. The Motion to Strike The Plaintiffs also move to strike portions of the Answer on the basis that Defendant LM General's affirmative defense raising any defenses available under the contract and a request for attorneys' fees are "vague and conclusory." "Striking a pleading is a 'drastic remedy' to be used sparingly because of the difficulty of deciding a case without a factual record." Judge McHugh finds no reason to grant relief. The legal sufficiency of the Defendant's affirmative defenses and request for attorneys' fees should be adjudicated on the merits based upon a review of the facts at issue in the case. The Plaintiffs have the relevant contracts in hand and suffer no prejudice from the Defendant's reliance on such contracts to vindicate their own legal rights. III. Conclusion For these reasons, Judge McHugh granted in part and denied in part the Defendants' motion to dismiss, and denied the Plaintiffs' motion to strike. The Complaint will be dismissed against Defendants Safeco and LMG. An appropriate order follows. A full-text copy of the Court's March 30, 2022 Memorandum is available at https://tinyurl.com/49jn4bmc from Leagle.com. LOUISIANA: Court Grants in Part Bid to Dismiss Giroir v. DOC Suit ----------------------------------------------------------------- In the case, JOEL GIROIR v. JAMES LeBLANC, ET AL., Civil Action No. 21-108-JWD-SDJ (M.D. La.), Magistrate Judge Erin Wilder-Dooms of the U.S. District Court for the Middle District of Louisiana granted in part and denied in part the Defendants' motion to dismiss. I. Background The matter comes before the Court on the Motion to Dismiss filed by Defendants LeBlanc and the Louisiana Department of Public Safety & Corrections ("DPSC" or "DOC"). The civil rights action arises from a claim of over-detention of an inmate in the DOC's custody. Between 2018 and 2021, the Plaintiff was incarcerated at the St. Tammany Parish Jail and in DOC custody at the Concordia Parish Jail in connection with other criminal matters. On Jan. 26, 2021, while still incarcerated at St. Tammany Parish Jail, the Plaintiff appeared for a probation revocation and resentencing hearing and was sentenced to one year in DOC custody. At that time, however, the Plaintiff "had served at least 192 days in jail," such that "he was eligible for immediate release" under Louisiana's "good time" law. According to the Complaint, in accordance with Louisiana's "good time" law, because of the Plaintiff's good behavior and because he was not convicted of a crime of violence, he was only required to serve 35% of his one-year sentence, or 128 days. Thus, at the time of the Plaintiff's revocation and resentencing hearing on Jan. 26, 2021, he had already served 64 days beyond his one-year sentence. Nevertheless, the Plaintiff remained in DOC custody. Three days after filing the instant lawsuit, the Plaintiff was released from DOC custody on Feb. 22, 2021. The Plaintiff avers that his experience is not an aberration. On the contrary, the Complaint alleges that the DOC has a known pattern and practice of overdetaining people in its custody. In the Complaint, the Plaintiff details the findings of an investigation conducted by the DOC in 2012, which uncovered that the DOC "was overdetaining over 2,000 people each year, with an average of 71.69 'overdue days' per person who was overdetained." This investigation also revealed that the DOC took "an average of approximately 79 days to calculate sentences" after receiving sentencing documents from the clerks' and sheriffs' offices. Moreover, "the DOC waits nearly 11 days on average to even begin calculating a person's time" once that paperwork is received, according to the Complaint. On Feb. 19, 2021, while still in DOC custody, the Plaintiff filed the class action suit against the DOC and LeBlanc, in his official capacity as Secretary of the DOC. His Complaint "proposes a class defined as all persons who have been, or will be, sentenced to the custody of the Louisiana DOC, and who were, or will be, entitled to release at the time of their sentencing, but who nevertheless remain in custody, now or in the future, for more than 48 hours past their sentencing dates." The Plaintiff asserts a claim on behalf of himself and the proposed class under 42 U.S.C. Section 1983 for violating the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution (Count I). He also asserts state law claims on behalf of himself and the proposed class for violating Article One, Section Two of the Louisiana Constitution (Count II); false imprisonment (Count III); negligence (Count IV); and intentional infliction of emotional distress (Count V). The Plaintiff seeks declaratory and injunctive relief, attorneys' fees and costs, and any other relief the Court deems proper. The Defendants now move to dismiss the Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). II. Discussion In support of their motion, the Defendants assert three grounds for dismissal of the Plaintiff's claims. First, the Defendants argue that the Plaintiff fails to state a claim for prospective relief concerning past harms. Second, they assert that the Plaintiff fails to state a claim for injunctive relief because the relief sought is fatally overbroad. Third, the Defendants alternatively seek dismissal of any claim that arose more than one year before the Plaintiff filed suit, contending that such claims have prescribed. In response, the Plaintiff rejects the Defendants' arguments as ill-founded and urges the Court to deny the Defendants' motion. First, the Plaintiff responds to the Defendants' contentions regarding standing and prescription, asserting that the Defendants misconstrue his proposed class. Second, he asserts that the Defendants' overbreadth argument is flawed in multiple respects. Finally, the Plaintiff contends that the Defendants' argument regarding the class action allegations rely on misapplied case law. In their reply, the Defendants mostly re-urge the main arguments raised in their original memorandum. First, they maintain that the Complaint could be construed as requesting prospective relief for past harms, notwithstanding the Plaintiff's concession that he is not seeking such relief. Second, they maintain that the Plaintiff fails to state a claim for injunctive relief because the relief sought is fatally overbroad. Lastly, the Defendants reassert their prescription argument and contend that the Plaintiff's "admission that he is not seeking relief for an individual who has been released does not obviate the need for dismissal of claims arising more than one year before suit was filed" based on prescription. A. Claims for Prospective Relief Concerning Past Harm The Defendants' motion seeks dismissal of any claims for prospective relief asserted on behalf of individuals who were released before the instant suit was filed because there is no likelihood of future injury as to those claims concerning past harms. Considering the foregoing and viewing the Complaint's allegations in the light most favorable to the Plaintiff, Judge Wilder-Dooms does not find that the Plaintiff is asserting claims for injunctive or declaratory relief on behalf of any individual who was overdetained in DOC custody and released before the Plaintiff filed the lawsuit. Accordingly, the Defendants' motion to dismiss as to these claims is denied as moot. B. Prescription As previously noted, the Plaintiff's Complaint asserts overdetention claims on behalf of all persons "who were, or will be, entitled to release at the time of their sentencing, but who nevertheless remain in DOC custody, now or in the future, for more than 48 hours past their sentencing dates." This includes individuals sentenced in the past, as the Plaintiff notes, so long as those individuals currently remain in custody or will be in custody in the future. Again, the Plaintiff filed suit on Feb. 19, 2021. Based on the allegations of the Complaint, Judge Wilder-Dooms holds that it is theoretically possible that an individual's overdetention claim could have accrued before Feb. 19, 2020. For instance, if the individual's sentencing occurred before Feb. 17, 2020, and following the 48-hour period after their sentencing date, they remained in custody for an additional year, the one-year limitations period would have run by the time the Plaintiff filed the action on Feb. 19, 2021. Accordingly, insofar as the Plaintiff seeks to bring claims of overdetention on behalf of proposed class members whose sentencings occurred before Feb. 17, 2020, such claims are time-barred under the applicable limitations period, and the Defendants' motion is granted as to these claims. C. Injunctive Relief Construing the Plaintiff's allegations in the light most favorable to him and taking all facts pleaded in the Complaint as true, Judge Wilder-Dooms finds that the Plaintiff has sufficiently alleged a plausible entitlement to the injunctive relief sought, based on the underlying Section 1983 action for the Defendants' violations of the proposed class's Fourteenth Amendment right to Due Process. She finds that, at the Rule 12(b)(6) stage, the Plaintiff has satisfied his pleading requirement under Rule 8 with respect to his request for injunctive relief. Therefore, she denies the Defendants' motion as to the Plaintiff's request for injunctive relief. D. Leave to Amend Having carefully considered the matter, Judge Wilder-Dooms grants the Plaintiff leave to amend to cure the deficiencies with respect to prescription. She does so for a couple of reasons. First, it is possible that such issues can be cured, at least in part. Second, even if amendment were likely futile, the Court would still act in accordance with the above "wise judicial practice" and grant the Plaintiff another opportunity to plead these claims, particularly since these claims have not been previously dismissed in response to a ruling by the Court. Consequently, those claims deemed prescribed will be dismissed without prejudice, and the Plaintiff will have an opportunity to cure the deficiencies. III. Conclusion Judge Wilder-Dooms granted in part and denied in part the Defendants' Motion to Dismiss. She granted the Defendants' motion seeking dismissal of claims on the basis of prescription, and dismissed without prejudice any such claims. The Plaintiff will have 28 days to amend the operative complaint to cure the above deficiencies. Failure to do so will result in dismissal of his claims with prejudice. Judge Wilder-Dooms denied the Defendants' motion in all other respects. A full-text copy of the Court's March 30, 2022 Ruling & Order is available at https://tinyurl.com/ye2386mm from Leagle.com. LUCID GROUP: Howard G. Smith Reminds of May 31 Deadline ------------------------------------------------------- Law Offices of Howard G. Smith on April 4 disclosed that a class action lawsuit has been filed on behalf of investors who purchased Lucid Group, Inc. ("Lucid" or the "Company") (NASDAQ: LCID) common stock between November 15, 2021 and February 28, 2022, inclusive (the "Class Period"). Lucid investors have until May 31, 2022 to file a lead plaintiff motion. Investors suffering losses on their Lucid investments are encouraged to contact the Law Offices of Howard G. Smith to discuss their legal rights in this class action at 888-638-4847 or by email to howardsmith@howardsmithlaw.com. On February 28, 2022, Lucid disclosed that it had only delivered approximately 125 EVs in 2021 -- 452 less than expected -- and would only produce between 12,000 and 14,000 EVs in 2022, despite previous claims that it would produce 20,000. The Company also announced that it would delay the launch of its Lucid Gravity SUV from 2023 to 2024, citing "the extraordinary supply chain and logistics challenges" as the cause. On this news, Lucid's common stock fell $3.99, or 13.8%, to close at $24.99 per share on March 1, 2022, thereby injuring investors. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants overstated Lucid's production capabilities while concealing that "extraordinary supply chain and logistics challenges" were hampering the Company's operations from the start of the Class Period. If you purchased Lucid common stock, have information or would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020, by telephone at (215) 638-4847, toll-free at (888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or visit our website at www.howardsmithlaw.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts Law Offices of Howard G. Smith Howard G. Smith, Esquire 215-638-4847 888-638-4847 howardsmith@howardsmithlaw.com www.howardsmithlaw.com [GN] LUCID GROUP: Rosen Law Firm Reminds of May 31 Deadline ------------------------------------------------------ WHY: Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of Lucid Group, Inc. (NASDAQ: LCID) between November 15, 2021, and February 28, 2022, inclusive (the 'Class Period'), of the important May 31, 2022 lead plaintiff deadline. SO WHAT: If you purchased Lucid securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the Lucid class action, go to https://rosenlegal.com/submit-form/?case_id=4992 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than May 31, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Many of these firms do not actually handle securities class actions, but are merely middlemen that refer clients or partner with law firms that actually litigate the cases. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose material adverse facts about the Company's business and operations. Specifically, Defendants overstated Lucid's production capabilities while concealing that 'extraordinary supply chain and logistics challenges' were already significantly hampering the Company's operations. To join the Lucid class action, go to https://rosenlegal.com/submit-form/?case_id=4992 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] MCDONALD'S CORPORATION: Food Products Contains PFAS, Collora Says ----------------------------------------------------------------- JOSEPH COLLORA, individually and on behalf of all others similarly situated, Plaintiff v. MCDONALD'S CORPORATION, Defendant, Case No. 1:22-cv-01904 (N.D. Ill., April 13, 2022) is an action by the Plaintiff and the Class who purchased for personal, family, or household use, certain of Defendant's Products - namely, Defendant's Chicken McNuggets, Cookies, and French Fries (the "Products"), which are unfit for human consumption because the packaging in which it is contained -- and is essential and integral to delivering the Product to the consuming public contains unsafe per- and polyfluoroalkyl substances ("PFAS"). Plaintiff alleges in the complaint that he purchased the Defendant's Products, which are unfit for human consumption because the packaging in which it is contained and is essential and integral to delivering the Product to the consuming public- contains unsafe per-and polyfluoroalkyl substances ("PFAS"). PFAS are a group of synthetic chemicals known to be harmful to both the environment and humans. PFAS have been shown to have a number of toxicological effects in laboratory studies and have been associated with thyroid disorders, immunotoxic effects, and various cancers in epidemiology studies. MCDONALD'S CORPORATION franchises and operates fast-food restaurants in the global restaurant industry. The Company's restaurants serves a variety of value-priced menu products in countries around the world. [BN] The Plaintiff is represented by: Kevin Laukaitis, Esq. Jonathan Shub, Esq. SHUB LAW FIRM LLC 134 Kings Hwy E., 2nd Fl. Haddonfield, NJ 08033 Telephone: (856) 772-7200 Facsimile: (856) 210-9088 Email: klaukaitis@shublawyers.com jshub@shublawyers.com - and - Brian M. Hogan, Esq. FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 Email: bhogan@fkmlaw.com - and - Jonathan M. Jagher, Esq. FREED KANNER LONDON & MILLEN LLC 923 Fayette Street Conshohocken, PA 19428 Telephone: (610) 234-6487 Email: jjagher@fkmlaw.com MCDONALD'S USA: DOJ's Request to File Statement of Interest Denied ------------------------------------------------------------------ Jan P. Levine, Esq., Barbara T. Sicalides, Esq., A. Christopher Young, Esq., and Robert Austin Jenkin, II, Esq., of Troutman Pepper, disclosed that the Biden administration's Department of Justice, Antitrust Division (DOJ) continues a practice largely begun under the Trump administration of intervening in private litigation and requesting permission to file statements of interest. Courts have typically granted the requests, perceiving the DOJ's viewpoint to be helpful to the resolution of the pending matter before the court. Recently, a DOJ request garnered significant attention for what it portends about the Biden administration's changing views of traditional antitrust principles and because the court denied the request. Deslandes v. McDonalds The DOJ's efforts to express its views were thwarted in a franchise no-poach antitrust class action in federal court in Chicago. In Deslandes v. McDonald's USA LLC, et al., McDonald's moved for judgment on the pleadings and/or for summary judgment on the plaintiffs' Sherman Act Section 1 claims. In its motion, McDonald's argued it was entitled to judgment on the pleadings because the plaintiffs had not pled a rule of reason claim, and in denying class certification, the court had previously held that it would not use the less rigorous, quick-look standard. McDonald's argued the plaintiffs could not establish that its employee no-poach agreements with its franchisees constituted a horizontal conspiracy subject to per se liability because the vertical agreements between a hub and its spokes "has no rim."[1] DOJ's Prior Position In its motion for summary judgment, McDonald's cited the DOJ's March 2019 Statement of Interest in Stigar v. Dough Dough Inc, No. 18 C 00244 (E.D. Wash. Mar. 7, 2019), another franchise no-poach antitrust class action, for the proposition that parallel signing of franchise agreements even with "'knowledge of others' agreement does not establish a hub and spoke conspiracy."[2] In Stigar, the plaintiffs -- former employees of franchisees of Auntie Anne's, Arby's, and Carl's Jr. -- alleged that the no-poach provisions contained within the franchise agreements for all three of the franchises violated Section 1 of the Sherman Act by depressing employee wages and restricting competition within the labor market. The plaintiffs alleged that hub-and-spoke horizontal conspiracies existed among the franchisees and franchisors, and therefore, the per se rule applied.[3] In its Stigar Statement of Interest, the DOJ's position substantially aligned with the franchisors' argument that the plaintiffs had not alleged sufficient facts to plead a per se illegal hub-and-spoke conspiracy because there were no horizontal agreements among the franchisees. The DOJ argued that the rule of reason governed most franchise agreement provisions because they are vertical agreements.[4] Further, the DOJ rejected the plaintiffs' suggestion that the less rigorous quick-look analysis is applicable because, in its view, the court should weigh the procompetitive benefits of the no-poach restraint against its anticompetitive effects. The DOJ also stated "allegations of parallel conduct alone do not suffice to satisfy the requirements" of a hub-and-spoke conspiracy and that "the mere fact that one franchisee may enforce no-hire provisions of a vertical franchise agreement against another franchisee does not create an actual agreement among competing franchisees" for purposes of Section 1 liability.[5] The parties in Stigar ultimately settled their dispute before the court ruled on the motion to dismiss. Court Denies DOJ's Request On February 17, after the briefing closed on McDonald's motion, the DOJ sought permission to file its Statement of Interest to set forth the government's position on "the implications of the Supreme Court's decision in NCAA v. Alston, 141 U.S. 2141 (2021)." The DOJ also contended that its Statement of Interest in Stigar "… does not fully and accurately reflect the United States' current views." McDonald's opposed the DOJ's request, mostly to avoid further delay in the case. On March 3, the court denied the DOJ's request based on separation of powers concerns and to avoid further delay. The court's denial prevented the DOJ from publicly expressing its "current" views on the standards that should be applied to a franchisor's no-poach agreements and leaves the new position of the DOJ subject to much speculation. DOJ's Possible New Position Given the court's refusal of the DOJ's request, it is impossible to know exactly what the "United States' current views" on Section 1 conspiracies in franchising are. But it is not difficult to predict that the DOJ intends to advocate a broader view of antitrust liability on the buy-side markets consistent with the Biden administration policy priority of protecting employee wages.[6] As such, the DOJ could try to push the bounds of traditional antitrust principles by arguing that even vertical arrangements like franchise relationships qualify as horizontal conspiracies worthy of per se scrutiny subject to an ancillary restraint defense. This is a sea change from the views expressed in Stigar, but it is consistent with what the DOJ argued in a statement of interest filed in Nevada state court on February 25. In that statement, the DOJ contended that the state court could treat non-competes found in separate agreements between employees and an employer, traditionally viewed as vertical arrangements, as horizontal and subject to per se illegality. In Beck v. Pickert Group, the DOJ argued that the two-year, post-employment agreement non-competes at issue could be considered to be horizontal territorial allocations because the employer and employees were competitors when they signed their respective employment agreements. If the restraint was a horizontal territorial allocation, the burden would shift to the employer to assert the ancillary restraint defense by showing the restraint is "(1) 'subordinate and collateral to a separate, legitimate transaction,' and (2) 'reasonably necessary' to achieving that transactions' pro-competitive purpose." In Beck the DOJ also seems to suggest that courts should consider using the quick look, or truncated rule-of-reason analysis more broadly. Analogizing the non-competes to franchise no-poach agreements, could the DOJ have suggested in its statement of interest that separate agreements between the franchisor and franchisees not to poach each other's employees are horizontal territorial allocations subject to the per se rule if, at the time they signed the agreements, the franchisor and franchisee competed with each other for employees? Even if it was to articulate such a position, significant factual distinctions exist between the employee anesthesiologists in Beck and the franchisees in Deslandes. For one, the employee anesthesiologists were a significant number of competitors in the relevant interbrand geographic market. That stands in contrast to the McDonald's franchisees in Deslandes that may compete with the franchisor, if at all, only on the buy-side labor market or the intrabrand sell-side market. Conclusion Because the court did not allow the DOJ's statement of interest to be filed, it is impossible to know what would have been in the filing. However, it is clear the DOJ wanted to deviate from its expressed position in Stigar. Based on the Biden administration's priorities, we can surmise the new statement may have taken a harder line on no-poach agreements in traditionally vertical arrangements like franchise systems. Businesses should continue to stay up to date on these issues as no-poach provisions continue to be a hot button topic in 2022. Members of the Troutman Pepper team are available to advise further on these issues as they develop. [GN] MEDICAL TRANSPORTATION: Appeals District Court Ruling in Harris --------------------------------------------------------------- MEDICAL TRANSPORTATION MANAGEMENT, INC. filed an appeal from a court ruling entered in the lawsuit entitled ISAAC HARRIS, et al., Plaintiffs v. MEDICAL TRANSPORTATION MANAGEMENT, INC., Defendant, Case No. 17-cv-01371 (APM), in the United States District Court for the District of Columbia. The lawsuit seeks unpaid wages with liquidated damages, penalties, treble damages, post-judgment interest at the statutory rate, attorneys' fees, costs and disbursements and further legal and equitable relief under the Fair Labor Standards Act, Columbia's Minimum Wage Act, Living Wage Act and Wage Payment and Collection Law, D.C. As reported in the Class Action Reporter on December 3, 2021, Judge Amit P. Mehta of the U.S. District Court for the District of Columbia denied Medical Transportation Management, Inc. ("MTM")'s motion for interlocutory review of an order. Defendant MTM sought interlocutory review of the Court's refusal to decertify a collective action under the Fair Labor Standards Act ("FLSA"). MTM also requested a stay of discovery pending a decision from the D.C. Circuit on whether to review a separate but related decision by the Court to certify an issue class. The D.C. Circuit has deferred its decision pending a ruling by the Court on MTM's motion for interlocutory review. Judge Mehta opined that these essentially boil down to one overarching question: Can the question of joint-employer status be the basis for a collective action under the FLSA? In its August 2021 opinion, the Court concluded that it could. The Court reasoned that MTM's role in devising each driver's terms of employment is likely to be defined by policies and practices that are broadly applicable to all TSPs, and that MTM is likely to be a joint employer for all drivers or for none at all based on common evidence. MTM, by contrast, has consistently argued that there must be evidence of a common FLSA-violating policy or practice to satisfy the similarly situated standard, and it now contends that the question of joint-employer status as the basis for a collective action warrants interlocutory review. The Court disagreed saying that even if this is a "controlling question of law," MTM has failed to demonstrate that it satisfies the remaining elements justifying interlocutory review. The Court is not convinced that there is substantial ground for difference of opinion as to this question. MTM also has not demonstrated that interlocutory review will materially advance the disposition of the litigation, it added. The Defendant now seeks a review of Judge Mehta's order. The appellate case is captioned as HARRIS et al. v. MEDICAL TRANSPORTATION MANAGEMENT, INC., Case No. 22-7033, in the United States Court of Appeals for the District of Columbia, filed on March 24, 2022.[BN] MIDLAND CREDIT: 7th Circuit Affirms Dismissal of FDCPA Claim ------------------------------------------------------------ Ryli Wallace Leader, Esq., and Alan Leeth, Esq., of Burr & Forman, in an article for JDSupra, report that in Pierre v. Midland Credit Management, Inc., -- F.4th --, 2022 WL 986441 (7th Cir. Apr. 1, 2022), the Seventh Circuit affirmed the dismissal of a claim under the Fair Debt Collection Practices Act ("FDCPA"), finding that the plaintiff and the putative class which she represented suffered no concrete injury and therefore lacked Article III standing under the framework set out in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) and TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). Plaintiff Renetrice Pierre filed a class action lawsuit, seeking to represent a class of Illinois residents who had received letters from the defendant offering to resolve debts long after the statute of limitations on the debt had run. The letters at issue notified the consumers that the time to sue on the debt had passed, and that "we will not sue you for it, we will not report it to any credit reporting agency, and payment or non-payment of this debt will not affect your credit score." The District Court for the Northern District of Illinois had denied dismissal, finding a risk of "real harm to the interests that Congress sought to protect with the FDCPA." After the court certified the class and entered summary judgment for the plaintiffs, a jury awarded statutory damages of $350,000. On appeal, the Seventh Circuit vacated and remanded the case, directing the district court to dismiss the case due to a lack of Article III standing. The plaintiff argued that the letter she received created a risk that she might make a payment on a time-barred debt, which could restart the statute of limitations. However, because the plaintiff sought monetary damages rather than injunctive relief, the Seventh Circuit stated that such a risk was insufficient to create a legally cognizable harm. Critically, the plaintiff had not made a payment in response to the letter and had not taken any action in response to the letter other than contacting a lawyer and filing the present lawsuit, which was not a sufficient harm to create standing. Further, the Seventh Circuit rejected the plaintiff's claim that the letter caused her confusion, stating that such confusion was insufficient under the Spokeo and TransUnion analysis. Judge Hamilton filed a lengthy dissent, asserting that the plaintiff's confusion and emotional harm was sufficient to create Article III standing. He analogized the plaintiff's claim to those under the common law for defamation and invasion of privacy, and further compared it to the difference between assault and battery, which he characterized as "fear and emotional distress." Judge Hamilton also raised concerns about the separation of powers, stating that the courts should grant "due respect" to Congress and the policy choices that were made in providing for private enforcement of technical violations of the FDCPA. Pierre is only one of a series of recent cases grappling with the standing doctrine in the wake of the recent TransUnion opinion. As a circuit split begins to emerge, the question arises of whether the Supreme Court will consider clarifying the standing doctrine in the wake of TransUnion so soon after the opinion was published. Until there is further clarification, we will likely continue to see more developments of this doctrine as it pertains to technical violations of the consumer protection statutes in the near future. [GN] MITSUI SUMITOMO: Wins Bid for Summary Judgment in Thermoflex Suit ----------------------------------------------------------------- In the case, THERMOFLEX WAUKEGAN, LLC, an Illinois limited liability company, Plaintiffs, v. MITSUI SUMITOMO INSURANCE USA, INC., Defendant, Case No. 21 C 788 (N.D. Ill.), Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order granting Mitsui's motion for summary judgment as to certain policies. I. Background Plaintiff Thermoflex purchased a number of insurance policies from Defendant Mitsui related to its business operations. While those policies were in effect, a former worker sued Thermoflex, alleging that it had violated the Illinois Biometric Information Privacy Act ("BIPA"), 740 Ill. Comp. Stat. 14/1 et seq., by requiring him to scan his handprint to check in and out of work. Thermoflex, in turn, notified Mitsui of the lawsuit and requested that Mitsui defend Thermoflex and indemnify it for any damages arising from the suit. Mitsui responded that the insurance policies it issued to Thermoflex did not cover BIPA claims, and the instant suit followed. Now Thermoflex and Mitsui have cross-moved for summary judgment as to whether Mitsui has a duty to defend and indemnify Thermoflex under certain commercial general liability policies, as well as excess and umbrella insurance policies. Because the Court concludes that at least one of the exclusions contained in the commercial general liability policies applies to the underlying claims, Mitsui's motion is granted as to these policies, and Thermoflex's cross-motion is denied as to these policies. II. Analysis Mitsui insures Thermoflex under a series of commercial general liability policies ("CGL Policies"). In them, Mitsui agreed to "pay those sums that Thermoflex becomes legally obligated to pay as damages because of 'personal and advertising injury' to which this insurance applies." The CGL Policies define "personal and advertising injury" as "injury arising out of one or more of" certain enumerated offenses, including the "oral or written publication, in any manner, of material that violates a person's right of privacy." They also require Mitsui to defend Thermoflex when it is named in a suit seeking damages for such injuries. The CGL Policies contain three pertinent exclusions. The first, entitled "Access Or Disclosure Of Confidential Or Personal Information." The second, entitled "Recording And Distribution Of Material Or Information In Violation Of Law." The third, "Employment-Related Practices," reads that the insurance does not apply to "personal and advertising injury to a person arising out of any." The issue is whether any of these exclusions precludes coverage for Gates' lawsuit. Judge Lee explains that it is uncontested that the claims Gates asserts in the underlying lawsuit allege "personal and advertising injury," which, in turn, triggers coverage. As a result, to avoid coverage, Mitsui must establish that at least one of the exclusions precludes its duty to defend. As noted, the exclusion in the CGL Policies entitled "Access Or Disclosure Of Confidential Or Personal Information" ("Access/Disclosure exclusion") states: "This insurance does not apply to damages arising out of any access to or disclosure of any person's or organization's confidential or personal information, including patents, trade secrets, processing methods, customer lists, financial information, credit card information, health information or any other type of nonpublic information." Judge Lee opines that the first clause in this provision is unequivocal. Because the language in the exclusion is clear and unambiguous, he ascribes to it its plain and ordinary meaning. The only readily discernible resemblance here is that several of the items, such as trade secrets, processing methods, customer lists, financial information, credit card information, and health information, denote certain categories of information about which individual and companies have a heightened interest in keeping from third-parties or the public at large, whether for financial reasons or otherwise. The biometric data that BIPA protects certainly falls within this category. But, Access/Disclosure exclusion not only applies to "confidential" information, but to an individual's "personal" information as well, and Thermoflex does not explain why biometric information would not constitute "personal" information as that term appears in the exclusion. Furthermore, although BIPA provides that "biometric identifier" information does not include a person's health care-related information, it does not expressly exclude "biometric identifier" information from the definition of "confidential and sensitive information." Finally, it is not at all clear whether and to what extent statutory definitions should bear on the present inquiry at all. For all of these reasons, Thermoflex's statutory arguments are unpersuasive. Judge Lee next turns to the allegations in the underlying litigation to determine whether they clearly fall within the Access/Disclosure exclusion. Gates alleges, among other things, that Thermoflex owes damages for disclosing Gates's hand-scan information to an out-of-state, third-party vendor without Gates's consent. Thermoflex argues that any construction that excludes coverage for damages based on the access to or disclosure of biometric information would consume the coverage grant for "personal and advertising injury," making the coverage illusory. The exclusion at issue does not render coverage for "personal and advertising injury" meaningless, Judge Lee opines. He says, claims for false light invasion of privacy seek damages arising out of a publication of material that violates a person's right of privacy, and, therefore, would satisfy the definition of "personal and advertising injury" in the CGL Policies. Yet, such claims would not fall under the Access/Disclosure exclusion because they would not seek damages arising out of any access to or disclosure of any person's confidential or personal information. Therefore, contrary to Thermoflex's contention, the Court's construction of the Access/Disclosure exclusion would not render coverage illusory. For all of these reasons, Judge Lee holds that the Access/Disclosure provision in the CGL Policies precludes coverage of the Gates lawsuit. III. Conclusion For the foregoing reasons, Judge Lee granted Defendant Mitsui's motion for summary judgment as to the CGL Policies, and Plaintiff Thermoflex's motion for summary judgment is denied as to the CGL Policies. A full-text copy of the Court's March 30, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/37vdcev8 from Leagle.com. MONEYLION INC: Bragar Eagel Investigates Potential Claims --------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, is investigating potential claims against MoneyLion, Inc. (NYSE: ML), Cronos Group, Inc. (NASDAQ: CRON), Agrify Corporation (NASDAQ: AGFY), and CareDx, Inc. (NASDAQ: CDNA). Our investigations concern whether these companies have violated the federal securities laws and/or engaged in other unlawful business practices. Additional information about each case can be found at the link provided. MoneyLion, Inc. (NYSE: ML) On March 10, 2022, MoneyLion disclosed in a filing with the U.S. Securities and Exchange Commission that "the Company's management has noted errors related to operating expenses, net loss and basic and diluted earnings (loss) per share in the condensed consolidated statements of operations for the three and nine months ended September 30, 2021 and additional paid-in capital and retained earnings in the condensed consolidated balance sheet as of September 30, 2021, along with related impacts to the condensed consolidated statement of cash flows for the nine months ended September 30, 2021 and the condensed consolidated statements of redeemable convertible preferred stock, redeemable noncontrolling interests and stockholders' deficit for the three and nine months ended September 30, 2021." MoneyLion further disclosed that "the Company's management identified a second error . . . as the denominator of the diluted net income per share calculation for the three months ended September 30, 2021 did not include the impact of dilutive securities" and that "[t]he Company's management, in consultation with its advisors, has determined that the calculation of diluted net income per share included within the condensed consolidated statement of operations for the three months ended September 30, 2021 should have included the impact of dilutive securities." Accordingly, the Audit Committee of MoneyLion's Board of Directors determined that the financial statements in question "should no longer be relied upon and should be restated in order to correct the errors described above." On this news, MoneyLion's stock price fell $0.18 per share, or 7.11%, to close at $2.29 per share on March 10, 2022. For more information on the MoneyLion investigation go to: https://bespc.com/cases/ML Cronos Group, Inc. (NASDAQ: CRON) On November 9, 2021, Cronos filed a Form 8-K with the U.S. Securities and Exchange Commission, stating that "[o]n November 8, 2021, Cronos Group Inc. . . . determined that it will be required to restate its previously issued unaudited interim financial statements for the three and six months ended June 30, 2021 previously filed on Form 10-Q on August 6, 2021" and advising that "[t]he Company's financial statements for this period should therefore no longer be relied upon." Cronos further stated that "[t]he Company concluded that it should have recorded an impairment charge of not less than $220 million on goodwill and indefinite-lived intangible assets in its U.S. reporting unit for the three and six months ended June 30, 2021. The Company will restate its unaudited interim financial statements for the three and six months ended June 30, 2021, accordingly." According to Cronos, the Company "is also evaluating whether to record an additional impairment in the three and nine months ended September 30, 2021." On this news, Cronos's stock price fell $1.01 per share, or 15.05%, to close at $5.70 per share on November 9, 2021. For more information on the Cronos Group investigation go to: https://bespc.com/cases/CRON Agrify Corporation (NASDAQ: AGFY) On December 16, 2021, during trading hours, market analyst Bonitas Research published a report regarding Agrify which alleges several issues at the Company including that "[w]e believe that Agrify created artificial demand for its product by financing undisclosed Company insiders to act as independent customers." Further the report alleges that "Agrify insiders lied to investors about the independence of its customer base in order to execute a dubious stock promotion for self-enrichment at the expense of minority shareholders[,]" and that "[e]vidence showed that five (5) of Agrify's eight (8) customer announcements in 2021 are either with undisclosed Company insiders or with unlicensed unproven operators." On this news, Agrify's common stock price fell sharply during intraday trading on December 16, 2021. For more information on the Agrify investigation go to: https://bespc.com/cases/AGFY CareDx, Inc. (NASDAQ: CDNA) advertisement On January 25, 2021, the Company sold 1,923,077 shares of its common stock through an underwritten public offering at a public offering price of $91.00 per share. On October 28, 2021, after the market closed, CareDx released Q3 2021 financial results in which the Company disclosed that the U.S. Department of Justice ("DOJ") had recently served a civil investigatory demand requesting documents in connection with a False Claims Act investigation. The DOJ is investigating business practices related to CareDx's kidney testing and phlebotomy services. The Company also disclosed that it received a subpoena from the U.S. Securities and Exchange Commission ("SEC") for similar issues as well as certain accounting and public reporting practices, and the Company received an information request from an unnamed state agency. On this news, the Company's share price declined by $19.34 per share, or approximately 27.5%, from $70.34 per share to close at $51.00 per share on October 29, 2021. For more information on the CareDx investigation go to: https://bespc.com/cases/CDNA About Bragar Eagel & Squire, P.C.: Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. Contact Information: Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Alexandra B. Raymond, Esq. (212) 355-4648 investigations@bespc.com www.bespc.com [GN] MONSANTO CO: Class Action Settlement Gets Preliminary Court Nod --------------------------------------------------------------- Ted A. Warpinski, Esq., and M. Andrew Skwierawski, Esq., of The National Law Review, report that a Central District of California Judge has preliminarily approved a class action settlement in City of Long Beach, et al. v. Monsanto Company, et al., that will resolve claims by various municipalities against Monsanto Company, Solutia, Inc. and Pharmacia for environmental damages related to PCBs. The underlying basis for the claims are allegations that PCBs are present at sites and public properties, including in stormwater, storm and wastewater systems, water bodies, sediment, natural resources, fish and wildlife. The Defendants agreed to pay $550 million to be distributed to 2,528 initial class members across the United States. While none of the named plaintiffs in the case are from Wisconsin, there are 135 Wisconsin Municipalities identified as Class Members who will be impacted by this settlement. Eighteen Wisconsin Municipalities are projected to be eligible for a combined total of over $11 million from a "TMDL Fund." The TMDL payments range from as low as $5,404 to a high of $4,034,109 and are intended to be used for "restitution and remediation including mitigation of contaminated property, stormwater, and/or stormwater systems, including compliance with a TMDL." The other 117 municipalities are purportedly eligible to receive payments ranging from $17,024.47 to $32,024.47 from a "monitoring fund." The total projected payout to these Wisconsin Municipalities from the monitoring fund is just under $720,000. In exchange for accepting payments as class members, the municipalities will be forever barred from making any claim against these manufacturers for PCB related environmental impairments, including impairments to water bodies, sediment cleanups, public properties, including stormwater and wastewater systems. Notice of the preliminary approval will be mailed to the identified 135 Wisconsin Municipalities in the coming days. Once the notice has been mailed, municipalities have 60 days from the date of mailing to decide if they want to (1) accept the settlement, remain in the class and file a claim; (2) remain in the class and object to the settlement; or (3) opt out of the settlement to pursue claims separately. [GN] MONTANA UNIVERSITY: Seeks Denial of Cole Class Certification Bid ---------------------------------------------------------------- In the class action lawsuit captioned as CATHERINE COLE, BARBARA KOOSTRA, MARY-ANN SONTAG BOWMAN, and RHONDIE VOORHEES, v. MONTANA UNIVERSITY SYSTEM, UNIVERSITY OF MONTANA–MISSOULA, and JOHN DOE DEFENDANTS 1-50, Case No. 9:21-cv-00088-BMM (D. Mont.), the Defendants ask the Court to enter an order denying class certification in this matter. The Defendants contend that the Plaintiffs fail to establish a sufficiently numerous class, lack common questions of law or fact, the named Plaintiffs’ claims are not typical of the class claims, and the class is not adequately represented due to conflicts between class members under Rule 23(a). Additionally, the class certification is inappropriate under all three elements of Rule 23(b). Class certification risks putative class members' rights and remedies and would result in a highly inefficient and unfocused trial forum. The Montana University System was created on July 1, 1994, when the Montana Board of Regents of Higher Education restructured the state's public colleges and universities, with the goal of streamlining the state's higher education in the wake of decreased state funding. A copy of the Defendants' motion dated March 25, 2022 is available from PacerMonitor.com at https://bit.ly/3JDe0JP at no extra charge.[CC] The Defendants are represented by: Susan Moriarity Miltko, Esq. James David Johnson, Esq. Hannah I. Higgins, Esq. WILLIAMS LAW FIRM, P.C. 235 E. Pine, P.O. Box 9440 Missoula, MT 59807-9440 Telephone: (406) 721-4350 E-mail: susan@wmslaw.com james@wmslaw.com hannah@wmslaw.com MORGAN STANLEY: Settles Data Breach Class Action for $60MM ---------------------------------------------------------- Top Class Actions reports that Morgan Stanley agreed to a $60 million settlement to resolve a class action lawsuit regarding its 2016 and 2019 data breaches. The settlement benefits consumers with existing or closed Morgan Stanley accounts who received notices in July 2020 and/or June 2021 about the 2016 and/or 2019 data breaches. Morgan Stanley is an investment advisory company that provides wealth management services. The company also provides market insights and analysis to the financial world. In 2016 and 2019, two separate data breaches compromised 15 million Morgan Stanley customers. The breaches included sensitive personal information such as social security numbers. According to a 2021 class action lawsuit, these data breaches were a direct result of Morgan Stanley's negligence. Both data breaches were allegedly caused by a failure to properly dispose of IT assets containing sensitive data. Even today, there are thousands of pieces of unsecured IT equipment containing unencrypted information on Morgan Stanley customers, the class action lawsuit contends. When an unauthorized third party gained access to some of these assets, they allegedly gained access to consumer data. To make matters worse, Morgan Stanley failed to manage the data breaches once they were discovered, the plaintiff contends. In fact, affected consumers were not informed about the 2016 and 2019 data breaches until 2020 and 2021, respectively, despite allegedly having knowledge of the issues for years. Morgan Stanley has not admitted any legal wrongdoing but agreed to pay $60 million to resolve the class action lawsuit. This civil settlement is separate from the $60 million in penalties the company paid in 2020 to the Office of the Comptroller of Currency. The settlement provides several benefits including fraud insurance coverage, cash reimbursement for losses, and injunctive relief. Under the settlement terms, Class Members are eligible for two years of complimentary access to Aura's Financial Shield insurance coverage. Class Members can redeem this benefit using the code provided on their mailed notice and by registering at the provided website. The settlement also allows Class Members to collect up to $10,000 in reimbursement for out-of-pocket expenses related to the data breaches. Eligible expenses include unreimbursed fraudulent charges, fees for professional services (attorneys, accountants, credit repairs, etc.), miscellaneous costs, and lost time (up to four hours at a rate of $25 per hour). Morgan Stanley also agreed to injunctive relief in the settlement. For one year, the company will hire a third party to investigate and retrieve any devices fraudulently sold to third parties. This aims to prevent further data incidents in connection with these devices. The deadline for exclusion and objection is May 3, 2022. The settlement's final approval hearing is scheduled for June 8, 2022. In order to receive a settlement payment, Class Members must submit a valid claim form by June 2, 2022. Who's Eligible The settlement benefits consumers with existing or closed Morgan Stanley accounts who received notices in July 2020 and/or June 2021 about the 2016 and/or 2019 data breaches. Potential Award Varies Proof of Purchase Any available documentation of the potential fraud and/or identity theft that made your expenditure of time necessary (i.e. letter from IRS or bank; police report). If you took unpaid time off from work, please provide documentation of the number of hours that you took off from work, and your hourly wage. NOTE: If you do not qualify for this settlement do NOT file a claim. Remember: you are submitting your claim under penalty of perjury. You are also harming other eligible Class Members by submitting a fraudulent claim. If you're unsure if you qualify, please read the FAQ section of the Settlement Administrator's website to ensure you meet all standards (Top Class Actions is not a Settlement Administrator). If you don't qualify for this settlement, check out our database of other open class action settlements you may be eligible for. Claim Form Deadline 06/02/2022 Case Name In re: Morgan Stanley Data Security Litigation, Case No. 1:20-cv-05914-AT in the U.S. District Court Southern District of New York Final Hearing 06/08/2022 Settlement Website MorganStanleyDataSecuritySettlement.com Claims Administrator Morgan Stanley Data Security Settlement Settlement Administrator P.O. Box 6758 Portland, OR 97228-6758 info@MorganStanleyDataSecuritySettlement.com 855-604-1744 Class Counsel Jean S Martin MORGAN & MORGAN Linda P Nussbaum NUSSBAUM LAW GROUP PC Defense Counsel Jane B O'Brien Brad S Karp Susanna M Buergel PAUL WEISS RIFKIND WHARTON & GARRISON LLP [GN] NATIONAL FOOTBALL: Ex-Coaches Join Racial Discrimination Suit ------------------------------------------------------------- David Keech, writing for OnFocus, reports that former Arizona Cardinals head coach Steve Wilks and former NFL assistant coach Ray Horton, who are both Black, have joined a federal class-action lawsuit filed earlier this year by former Miami Dolphins coach Brian Flores, alleging racial discrimination in hiring practices by the NFL and its member teams. The amended complaint, filed on April 7 in the Southern District of New York, includes new allegations of discrimination against the Cardinals, Tennessee Titans and Houston Texans. The complaint also outlined eight proposals for change within the NFL "to create a future with equal opportunity for Black candidates," including the promotion of Black ownership, increased transparency in the hiring and termination process, increased visibility for Black assistant coaches and an increased pipeline for Black coaches. An NFL spokesperson declined to comment on the amended complaint. In the amended complaint, Horton alleges the Titans conducted a "sham interview" with him for their head coach vacancy in January 2016 when the team had already decided to hire Mike Mularkey. At the time, Horton was the Titans defensive coordinator and Mularkey, who is white, was the team's interim head coach. Horton alleges that his interview for the team's head-coaching position was conducted so the Titans could make it appear that they had complied with the Rooney Rule and had "given an equal opportunity to Black candidates" before announcing the "pre-made decision to hire [Mularkey] as head coach." The complaint goes on to cite a 2020 podcast interview in which Mularkey said he regretted the process that led to him becoming the Titans head coach. "I allowed myself at one point when I was in Tennessee to get caught up in something I regret, and I still regret it, but the ownership there, Amy Adams Strunk and her family, came in and told me I was going to be the head coach in 2016, before they went through the Rooney Rule," Mularkey said. "And so I sat there knowing I was the head coach in 2016, as they went through this fake hiring process knowing, knowing a lot of the coaches that they were interviewing, knowing how much they prepared to go through those interviews, knowing that everything they could do and they had no chance to get that job." Horton said in a statement on April 7 he was "devastated and humiliated" when he learned that his interview with the Titans was a sham. "By joining this case, I am hoping to turn that experience into a positive and make lasting change and create true equal opportunity in the future," he said. In a statement on April 7, the Titans defended their search process for a new head coach in 2016. "Our 2016 head coach search was a thoughtful and competitive process fully in keeping with NFL guidelines and our own organizational values," the team said. "We conducted detailed, in-person interviews with four talented individuals, two of whom were diverse candidates. No decision was made, and no decision was communicated, prior to the completion of all interviews. While we are proud of Our Commitment to Diversity, we are dedicated to continued growth as an organization to foster diversity and inclusion in our workplace and community." Flores' original lawsuit included an allegation against Dolphins owner Stephen Ross that Ross told Flores he would pay him $100,000 for every loss during the coach's first season in 2019 in an effort to obtain the No. 1 pick in the 2020 NFL Draft. Ross has denied the allegations. According to the April 7 court filing, Flores, now the Pittsburgh Steelers senior defensive assistant/linebackers coach, allegedly sent a memo on Dec. 4, 2019, to Dolphins GM Chris Grier, CEO Tom Garfinkel and senior executive Brandon Shore on Ross' desire to lose games and the "toxicity that existed within the organization." NFL.com has reached out to the Dolphins for comment. The amended complaint also included an allegation of "retaliation" by the Texans against Flores, as a result of his initial lawsuit. Flores alleges that he was not hired to replace David Culley, who is Black and was fired after he went 4-13 in his lone season as the Texans' head coach, because Flores was suing the league and "speaking publicly about the systemic racism in the NFL." The complaint cites a report from Feb. 6 that Flores and former NFL quarterback Josh McCown were the apparent finalists for the Houston head-coaching job, and alleges that the team was "concerned" that if it hired McCown, who is white, "it would bolster Flores' allegations of systemic discrimination against Black candidates." On Feb. 8, the Texans hired Lovie Smith, who is Black and served as the team's defensive coordinator under Culley, to be their next head coach. "The search for our head coach was very thorough and inclusive," the Texans said in a statement on April 7. "Due to his previous success as a coach in the NFL, Brian Flores was among the first candidates we held a formal interview with for the position and he remained a candidate until the very end. We have a lot of respect for Brian both personally and professionally; he has been a competitive coach in the league for a number of years and his resume speaks for itself. We enjoyed our multiple conversations with Brian regarding his vision for our organization, which included an in-person meeting with the McNair family and general manager Nick Caserio. In the end, we made the decision to hire Lovie Smith as our head coach and we believe he is the best fit for our team moving forward. It was a very fluid process that allowed us to spend time with a number of quality candidates. We are proud of our decision and will vigorously defend our process." In joining the lawsuit, Steve Wilks alleges he was hired as a "bridge coach" by the Arizona Cardinals in 2018 and was "unfairly and discriminatorily fired" after one season with the club. Wilks alleges differences in how he was treated in comparison to GM Steve Keim, who is white. Wilks describes being at a "severe disadvantage" in his first season as a head coach due to Keim's five-week suspension resulting from a DUI arrest, which caused Keim to miss the Cardinals' training camp and much of their preseason. Wilks alleges that while Keim was suspended, the GM participated in contract negotiations for running back David Johnson. In addition, Wilks said in the complaint that he preferred the Cardinals trade up to select Josh Allen in the 2018 NFL Draft, while Keim preferred a trade to select Josh Rosen. Allen has made one Pro Bowl so far in his career and has emerged as one of the league's better quarterbacks, while Rosen lasted one season in Arizona. Wilks drew a distinction to how he was fired after going 3-13 in his one season in Arizona, while Keim received a four-year contract extension one month later. He also noted the Cardinals' current coach, Kliff Kingsbury, who is white, has had "a much longer leash" to succeed after going 5-10-1 in his first season. "The decisions we made after the 2018 season were very difficult ones," the Cardinals said in a statement on April 7. "But as we said at the time, they were entirely driven by what was in the best interests of our organization and necessary for team improvement. We are confident that the facts reflect that and demonstrate that these allegations are untrue." Wilks, currently a defensive assistant coach with the Carolina Panthers, said in a statement on April 7 he hoped the lawsuit would help bring racial equality to the league. "When Coach Flores filed this action, I knew I owed it to myself, and to all Black NFL coaches and aspiring coaches, to stand with him," he said. "This lawsuit has shed further important light on a problem that we all know exists, but that too few are willing to confront. Black coaches and candidates should have exactly the same ability to become employed, and remain employed, as white coaches and candidates." During his Super Bowl news conference in February, NFL Commissioner Roger Goodell said the league would reevaluate everything it is doing as it pertains to diversity and the hiring of minority head coaches. The NFL announced on March 28 that teams are now required to hire at least one minority or woman as an offensive assistant, and Goodell acknowledged last month the new mandate gives the league an opportunity to develop a more diverse candidate pool from that side of the ball for potential head-coaching positions. [GN] NEW YORK JETS: Fans Drop NFL League Teams Relocation Bid -------------------------------------------------------- Max Jaeger, writing for Law360, reports that fans suing the New York Jets and New York Giants for false advertising over the fact they play in New Jersey have dropped their bid to relocate the National Football League teams and are instead demanding they change their names and scrub images of the Big Apple skyline from marketing material, according to an amended class action filed on April 11. [GN] NEW YORK: Fired Yankees Stadium Waitress Files Vaccine Mandate Suit ------------------------------------------------------------------- Asher Notheis at washingtonexaminer.com reports that a former waitress at Yankees Stadium who refuse to play ball with the Big Apple's COVID-19 vaccine mandate filed a complaint against the mayor. Her complaint, which seeks to become a class-action lawsuit, argues that Mayor Eric Adams's order March 24 allowing athletes and performers to be the only workers exempt from getting the COVID-19 vaccine is "arbitrary and capricious" and criticizes the lack of science to back it up. The complaint was submitted on behalf of Virginia Alleyne, the now-fired worker at Yankees Stadium, and "all other Individuals similarly situated" to ask for a declaratory judgment that Adams's order violates the plaintiffs' rights and should no longer be enforced unless it applies to all city employees. "Thousands of firemen, policemen, teachers, sanitation workers, restaurant workers and other private sector workers have been fired as a result of this mandate," reads the complaint filed in New York court, which was obtained by the Washington Examiner. "Has the mayor asked the aforementioned terminated NYC employees if they care if the Nets, Knicks, Yankees or Mets are at a competitive disadvantage when they can no longer support their families?" Alleyne was employed at Yankee Stadium for 17 years as a waitress at the Legends Club and was fired Sept. 12, 2021, because she refused to get vaccinated, according to the complaint. Adams, a Democrat, did not become mayor until the beginning of this year, but he is the one who announced in March that the mandate for unvaccinated athletes and performers had been lifted. "A small number of people have an outsized impact on our economy," Adams said at the time. The lawyer filing the complaint, James Mermigis, told the Washington Examiner the case is intended to exempt all workers from being required to receive the COVID-19 vaccine. Mermigis said he currently has 781 plaintiffs ready to go for the class-action lawsuit, with more expected to join. All of them have lost their jobs, he claimed. The complaint argues that class action "is superior to any other method for the resolution of this dispute." The lawsuit also seeks an immediate injunction against the order unless the exemptions are lifted, the payment of legal fees, and "any other such further relief to which Petitioners may be entitled as a matter of law or equity, or which the Court determines to be just and proper." A total of 86.6% of New York City's population has received at least one dose of the COVID-19 vaccine, with 77.8% fully vaccinated. Additionally, 36.9% of residents have received a booster shot, according to NYC Health. Adams's office and the New York Yankees have not yet responded to the Washington Examiner's requests for comment. [GN] NEWPORT CORP: Summary Judgment Order in Shareholder Suit Affirmed ----------------------------------------------------------------- In the case, IN RE: NEWPORT CORPORATION SHAREHOLDER LITIGATION. HUBERT C. PINCON; INTERNATIONAL UNION OF OPERATING ENGINEERS-EMPLOYERS CONSTRUCTION INDUSTRY RETIREMENT TRUST, LOCAL 302; AND INTERNATIONAL UNION OF OPERATING ENGINEERS-EMPLOYERS CONSTRUCTION INDUSTRY RETIREMENT TRUST, LOCAL 612, Appellants v. ROBERT J. PHILLIPPY; KENNETH F. POTASHNER; CHRISTOPHER COX; SIDDHARTHA C. KADIA; OLEG KHAYKIN; AND PETER J. SIMONE, Respondents, Case No. 80636 (Nev.), the Supreme Court of Nevada affirmed the district court's orders granting the Respondents summary judgment, denying the Appellants' motion to amend, and striking the Appellants' jury demand in a breach-of-fiduciary-duty action. I. Background Newport, a once publicly traded Nevada corporation, was a global provider of technology products and systems. The Appellants are a class of former shareholders of Newport common stock (collectively, shareholders). The Respondents are the individual members of Newport's former board of directors (collectively, the Board). Amidst a market downturn and several years of lackluster financial results, the Board turned to strategic alternatives for Newport, specifically, a merger-of-equals or acquisition transaction. The Board engaged financial and legal counsel, and merger discussions ensued over nine months with nine potential parties. To guide the discussions, Newport's management created two sets of five-year financial forecasts -- the "base case" and the "acquisition case." The base case assumed an organic 3 percent compound annual growth rate, while the acquisition case assumed a more aggressive 10 percent compound annual growth rate based on a mix of organic and acquisition-based growth. The Board also directed its financial counsel (J.P. Morgan) to conduct a market check to evaluate Newport's current market value. During this process, MKS Instruments, Inc. contacted Newport about a potential transaction and eventually offered to acquire Newport for $23 per share in cash. Meanwhile, Newport continued to explore transactions with other interested parties. At Newport management's direction, J.P. Morgan used the base case to value Newport, and based on this evaluation, J.P. Morgan delivered an opinion that MKS's offer was fair to Newport's shareholders. The Board then entered a brief period of exclusivity with MKS before unanimously approving the merger agreement, under which MKS agreed to purchase all of Newport's common stock at $23 per share in cash. The deal represented a 53% premium over Newport's closing share price of $15.04. A group of plaintiffs different from those in the case filed, then abandoned, a class action seeking to enjoin the merger. Ninety-nine percent of shareholders approved the merger transaction. The shareholders then initiated the class action suit underlying theappeal, alleging that the board members breached their fiduciary duties, causing the merger share price to be undervalued. Several years later, shareholders moved to amend their second-amended complaint, which the district court denied. While the shareholders' motion to amend was pending, the Board moved for summary judgment on all claims, and the district court granted their motion. Shareholders appeal the district court's summary judgment decision and its order denying their motion to amend. II. Discussion In granting the Board's motion for summary judgment, the district court concluded that shareholders could not rebut the business judgment rule as applied to the MKS acquisition because the Board exercised due care during the nine-month sale process and shareholders otherwise failed to show that self-interest or fraud motivated a voting majority of the Board when it approved the transaction. The Supreme Court affirms for two reasons. First, summary judgment was proper because shareholders failed to produce sufficient evidence to rebut the business judgment rule. Second, summary judgment was proper because, even if shareholders raised a material issue of fact as to whether Phillippy was compromised, and assuming that Phillippy's self-interest called the other board members' judgment into question sufficient to set aside the business judgment rule, shareholders still do not show an actionable injury -- i.e., that the board members breached their fiduciary duties and that those breaches involved intentional misconduct, a knowing violation of law, or fraud. III. Conclusion The Supreme Court concludes that the shareholders fail to rebut the business judgment rule as a matter of law, and the presumption that the Board acted in good faith when it approved the MKS acquisition remains in place. Shareholders further fail to raise a material issue of fact as to the board members' breach of their fiduciary duties. Summary judgment was therefore proper. Further, the district court did not abuse its discretion by denying shareholders' motion to amend their second-amended complaint. Accordingly, the Supreme Court affirmed the judgments of the district court. A full-text copy of the Court's March 30, 2022 Order is available at https://tinyurl.com/dm7yx2mb from Leagle.com. NOVO NORDISK: June 27 Settlement Fairness Hearing Set ----------------------------------------------------- UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY In Re Novo Nordisk Securities Litigation No. 3:17-cv-209-ZNQ-LHG SUMMARY NOTICE OF (I) PROPOSED SETTLEMENT AND PLAN OF ALLOCATION; (II) SETTLEMENT HEARING; AND (III) MOTION FOR ATTORNEYS' FEES AND LITIGATION EXPENSES This notice is for all persons or entities who purchased the American Depository Receipts of Novo Nordisk A/S ("Novo Nordisk") between February 3, 2015 and February 2, 2017, inclusive, and who were damaged thereby (the "Class"). Certain persons and entities are excluded from the Class by definition and others are excluded pursuant to request. The full definition of the Class including a complete description of who is excluded from the Class is set forth in the full Settlement Notice referred to below. PLEASE READ THIS NOTICE CAREFULLY; YOUR RIGHTS WILL BE AFFECTED BY THE SETTLEMENT OF A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the District of New Jersey (the "Court"), that co-lead plaintiffs and class representatives Lehigh County Employees' Retirement System, Oklahoma Firefighters Pension and Retirement System, Boston Retirement System, Employees' Pension Plan of the City of Clearwater, and Central States, Southeast and Southwest Areas Pension Fund (collectively, "Lead Plaintiffs"), on behalf of themselves and the Court-certified Class in the above-captioned securities class action (the "Action"), have reached a proposed settlement of the Action with defendants Novo Nordisk, Lars Rebien Sørensen, Jesper Brandgaard, and Jakob Riis (collectively, "Defendants") for $100,000,000 in cash that, if approved, will resolve all claims in the Action. A hearing will be held on June 27, 2022 at 11:00 a.m., before the Honorable Zahid N. Quraishi, by videoconference to, among other things: (i) determine whether the proposed Settlement on the terms and conditions provided for in the Stipulation and Agreement of Settlement dated November 23, 2021 (the "Stipulation") is fair, reasonable, and adequate to the Class, and should be finally approved by the Court; (ii) determine whether the Action should be dismissed with prejudice against Defendants, and the Releases specified and described in the Stipulation and the Settlement Notice should be granted; (iii) determine whether the proposed Plan of Allocation should be approved as fair and reasonable; (iv) determine whether Lead Counsel's motion for attorneys' fees and Litigation Expenses (including awards to the Lead Plaintiffs) should be approved; and (v) consider any other matters that may properly be brought before the Court in connection with the Settlement. If you are a member of the Class, your rights will be affected by the Settlement, and you may be entitled to share in the Net Settlement Fund. If you have not yet received the full printed Notice of (I) Proposed Settlement and Plan of Allocation; (II) Settlement Hearing; and (III) Motion for Attorneys' Fees and Litigation Expenses (the "Settlement Notice") and the Proof of Claim and Release Form (the "Claim Form"), you may obtain copies of these documents by contacting the Claims Administrator at Novo Nordisk Securities Litigation, c/o JND Legal Administration, P.O. Box 91154, Seattle, WA 98111, by telephone at 1 (833) 674-0167, or by email at info@NovoNordiskSecuritiesLitigation.com. Copies of the Settlement Notice and Claim Form can also be downloaded from the website for the Action, www.NovoNordiskSecuritiesLitigation.com. If you are a Class Member, in order to be eligible to receive a payment under the proposed Settlement, you must submit a Claim Form postmarked (if mailed), or online through the case website, www.NovoNordiskSecuritiesLitigation.com, no later than July 27, 2022. If you are a Class Member and do not submit a proper Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement, but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. Any objections to the proposed Settlement, the proposed Plan of Allocation, and/or Lead Counsel's application for attorneys' fees and expenses, must be filed with the Court and delivered to Lead Counsel and counsel for Defendants such that they are received no later than June 6, 2022, in accordance with the instructions set forth in the Settlement Notice. Please do not contact the Court, the Clerk's office, Novo Nordisk, any other Defendants in the Action, or their counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to the Claims Administrator or Lead Counsel. Or you may visit www.NovoNordiskSecuritiesLitigation.com or toll-free at 1 (833) 674-0167. Requests for the Settlement Notice and Claim Form should be made to: Novo Nordisk Securities Litigation c/o JND Legal Administration P.O. Box 91154 Seattle, WA 98111 1 (833) 674-0167 info@NovoNordiskSecuritiesLitigation.com www.NovoNordiskSecuritiesLitigation.com Inquiries, other than requests for the Settlement Notice and Claim Form, may be made to Lead Counsel: Luke O. Brooks, Esq. Robbins Geller Rudman & Dowd LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 1 (800) 449-4900 rickn@rgrdlaw.com Katherine M. Sinderson, Esq. Bernstein Litowitz Berger & Grossmann LLP 1251 Avenue of the Americas New York, NY 10020 1 (800) 380-8496 settlements@blbglaw.com BY ORDER OF THE COURT United States District Court District of New Jersey [GN] OJ INSULATION: Carrillo Class Suit Sues Over Wage & Hour Violations ------------------------------------------------------------------- JORGE CARRILLO, individually and on behalf of all others similarly situated v. OJ INSULATION, L.P.; and DOES 1 through 20, inclusive, Case No. 22STCV12226 (Cal. Super., Los Angeles Cty., April 11, 2022) alleges that the Defendants engaged in a systematic pattern of wage and hour violations under the California Labor Code and Industrial Welfare Commission (IWC) Wage Orders, all of which contribute to Defendants' deliberate unfair competition. The Plaintiff alleges, that Defendants have increased their profits by violating state wage and hour laws by, among other things: (a) failing to pay all wages (including minimum wages and overtime wages); (b) failing to provide lawful meal periods or compensation in lieu thereof; (c) failing to authorize or permit lawful rest breaks or provide compensation in lieu thereof; (d) failing to reimburse necessary business-related costs; (e) failing to provide accurate itemized wage statements; (f) failing to pay wages timely during employment; and (g) failing to pay all wages due upon separation of employment. OJ Insulation operates as an insulation contractor. The Company provides attic, wall, crawl space, floor, ceiling, warehouse, and soundproofing.[BN] The Plaintiff is represented by: Jessica L. Campbell, Esq. AEGIS LAW FIRM, PC 9811 Irvine Center Dr., Ste. 100 Irvine, CA 92618 Telephone: (949) 379-6250 OREGON: Lawyer Discusses Lawsuit Over Prison COVID-19 Response -------------------------------------------------------------- John Notarianni, writing for OPB, reports that Attorney Juan Chavez's legal career focuses on gaining justice for people who've been injured by systems that are supposed to help keep us safe. As project director for the Civil Rights Project and a prison and police accountability lawyer with the Oregon Justice Resource Center, he's won six-figure settlements in wrongful death lawsuits against the Portland Police Bureau. His next case could potentially be worth millions of dollars for people incarcerated in Oregon and their families. Last year, a report from the Prison Policy Initiative found that the COVID-19 mortality rate for incarcerated Oregonians was five times higher than it was for the state's general population. Since the beginning of the pandemic, 45 people in the custody of the Oregon Department of Corrections (DOC) have died after testing positive for COVID-19. Another 5,000 people have tested positive for the virus while in custody. A federal judge approved a class-action lawsuit over the state's response to the pandemic inside Oregon's prisons. Chavez is one of the attorneys representing the prisoners in that lawsuit. He recently spoke with OPB Weekend Edition host John Notarianni about the case. John Notarianni: This lawsuit initially began way back in April of 2020, actually. That's when a group of people who contracted COVID-19 in custody decided to sue the state. What were they alleging? Juan Chavez: At the beginning of the pandemic, I think we understood that this was a communicable disease. I don't know if we knew precisely how communicable, how it was transmitted, but the best we could understand was it was transmitted by being in close proximity to each other. That became an immediate concern given what prisons are: these folks can't leave. They're not going to be able to be distant from one another, they can't stay at their homes, they can't limit their exposure to other folks. So, a few of these folks, all of whom had some pre-existing condition that would make them medically vulnerable to COVID-19, decided that they needed to act now and get the protections ordered by a federal court so that they could be safe. Notarianni: Broadly speaking, how has the Oregon Department of Corrections response to this pandemic stacked up against what's been happening in other states? Chavez: The Oregon Department of Corrections, during the height of the pandemic in the winter of 2020 into 2021, was one of the worst states for [COVID-19 related] deaths and transmission across the country. I think we were, at its height, the third-worst per capita on death. And so, a lot of folks were suffering, and it was just not being abated. We brought an injunction that we were hoping the court would order the department of corrections to institute some measure of social distancing, masking rules, and other protections that we knew folks needed. Unfortunately, the court rejected that motion for an injunction, and that's why we filed the damages class action in addition to this. Notarianni: Yeah, and there are a number of criteria that need to be met for a class-action suit to be able to go forward. U. S. Magistrate Judge Stacie Beckerman issued a ruling on April 1st and said that it has a green light; that this class-action suit can go forward. What was she looking to establish in order to permit this lawsuit to move ahead? Chavez: Well, the biggest question in every class action is whether everybody's more or less in the same boat, in terms of what kind of claims can they bring and what kind of defenses the will defendants use. In this case, we were very particular with who it is that we were suing and what it is that we were saying was the problem. We sued the top-level officials for DOC, and we sued them because they did indeed have a heavy hand in how it is that the pandemic response was managed in DOC. They weren't shy about saying that on a number of occasions. The problem started at the top; if the problem started at the top, it affected everybody downwards. So, the only way that this case could properly be managed would be through a class action. Otherwise, the courts would also be facing 5,000 separate lawsuits. Notarianni: What could this lawsuit eventually mean for the plaintiffs: those thousands of Oregonians who contracted COVID-19 while they were incarcerated and for the families of people who died in state custody? Chavez: You know, this is a remarkable thing to say after two years, but it might be too early to tell, to be honest. It's probably the biggest unknown right now, whether or not the state will seek an appeal on this. Most cases can't be appealed until the case is entirely done, but there are some rules that could allow the state to try to seek an appeal. If this is appealed, then that puts things on pause for a very long time, more than likely. Notarianni: Well, even with all of those unknowns in place, legal experts are saying this could be a first-of-its-kind class-action suit. So, putting aside what we know right now, looking towards a hypothetical future, do you have a sense of what implications this could have nationwide? Chavez: I think what courts have done in the past, and what certainly departments of corrections across the country have done, is the strategy of divide and conquer amongst prisoners themselves. There's a federal law called the Prison Litigation Reform Act that Congress passed in the nineties, during the 'tough on crime' period. That was solely focused on diminishing the ability for prisoners to bring lawsuits, and it was definitely effective. But, I think more importantly, what it did was discourage prisoners from asserting their rights. What I think this class action does is give the power back to the people who are being harmed, which is prisoners in this context. So, if in the future there are these mass harms that are caused by administrators in departments of corrections, this could be a big game-changer. [GN] PATTERN ENERGY: Bid to Dismiss Securities Suit Granted in Part -------------------------------------------------------------- In the case, IN RE PATTERN ENERGY GROUP INC. SECURITIES LITIGATION, C.A. No. 20-275 (MN) (JLH) (D. Del.), Judge Maryellen Noreika of the U.S. District Court for the District of Delaware denied the Pattern Defendants' motion to dismiss Counts I and II of the Second Consolidated Amended Class Action Complaint. I. Background Presently before the Court are the objections of the Pattern Energy Defendants to Magistrate Judge Hall's Report and Recommendation. The Report recommends granting-in-part and denying-in-part the Pattern Energy Defendants' motion to dismiss the SAC and granting the Riverstone Defendants' motion to dismiss. The Pattern Energy Defendants only object to those portions of the Report denying their motion to dismiss as to Counts I and II of the SAC. The dispute arises from an agreement between Defendant Pattern Energy and the Canada Pension Plan Investment Board (CPPIB) to merge Pattern Energy with a subsidiary of CPPIB. That agreement was announced on Nov. 4, 2019. The Plaintiffs are investment funds that owned Pattern Energy stock at the time of the merger. They were all advised by their investment advisor, Water Island Capital, LLC. According to the SAC, Riverstone Holdings and its affiliates (collectively, Riverstone) held a controlling 70% equity interest in Pattern Development before the merger. The remaining equity interest of Pattern Development was owned as follows: Pattern Energy held a 29% equity stake, and most of the remaining 1% was held by Pattern Development's management, many of whom also had high-level management roles at Pattern Energy. At the time of the merger, Pattern Development had a consent right that limited Pattern Energy's ability to transfer its interest in Pattern Development to any third party without the consent of Pattern Development. Because Riverstone held a controlling equity stake in Pattern Development, Riverstone controlled the consent right. The Plaintiffs' federal claims are all based on their contention that the proxy materials sent to Pattern Energy shareholders in connection with its merger with CPPIB contained material misrepresentations and omissions. The Plaintiffs filed the action on Feb. 25, 2020, two weeks before the merger was approved via shareholder vote. On May 22, 2020, the Plaintiffs filed a Consolidated Amended Class Action Complaint, alleging violations of federal securities laws and state law. The Defendants moved to dismiss the Consolidated Amended Class Action Complaint. Judge Noreika recommended that the Court grants the motions to dismiss. On Feb. 26, 2021, the Court adopted her report and recommendation and dismissed the Consolidated Amended Class Action Complaint over the Plaintiffs' objections. On March 29, 2021, the Plaintiffs filed the SAC. The SAC adds new factual allegations supporting the Plaintiffs' claims. Count I alleges violations of Section 14(a) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S.C. Section 78n(a), against Pattern Energy, the Board Defendants, and the Officer Defendants. Count II alleges violations of Section 20(a) of the Exchange Act, 15 U.S.C. Section 78t(a), against the Board Defendants and the Officer Defendants. Count III is a state law breach of fiduciary duty claim against the Board Defendants and the Officer Defendants. Count IV alleges that Riverstone is liable for aiding and abetting the breaches of fiduciary duties. The Defendants again filed motions to dismiss. Both motions are fully briefed. Judge Hall heard oral argument on Sept. 2, 2021. On Jan. 27, 2022, Judge Hall issued the Report recommending, inter alia, that Pattern Energy's requests to dismiss Counts I and II be denied. Pattern Energy timely objected. II. Discussion The Pattern Energy Defendants object to the Report's findings that 1) "the SAC adequately alleged facts to support a plausible inference that the Special Committee did not sincerely believe that the CPPIB offer represented the 'best value' and 'highest price reasonably available' to PEGI stockholders"; 2) "the Report failed to consider whether the opinions were objectively false, as required by the Supreme Court's recent decision in Omnicare (which the Report does not cite)"; and 3) "the Section 20(a) claim is adequately pled against the Individual Defendants." A. Inferences Regarding the Special Committee The Report determined that the Plaintiffs plausibly alleged that the proxy materials contained at least two false statements. The first is in the Proxy Statement, which provided: "Following extensive negotiations, the Special Committee was able to increase the per share Merger Consideration offered by CPPIB to $26.75 in cash, which, after consultation with its financial advisors, the Special Committee believed was the highest that CPPIB would be willing to pay and represented the best value reasonably available to our stockholders." The second is in the Feb. 26, 2020 Form 8-K, which represented that "the Special Committee sought and believes it obtained the highest price reasonably available for Pattern Energy." As the Report noted, the SAC alleges that those statements were false because the Special Committee did not actually hold a sincere belief that CPPIB's offer represented the best reasonably available price for Pattern Energy. The Pattern Energy Defendants disagree. Drawing all inferences in favor of the non-moving party as required at this stage, Judge Noreika agrees with the Report that the SAC plausibly alleges that those two statements of opinion were false: It contains factual content that gives rise to a reasonable inference that the Special Committee did not sincerely believe that CPPIB's offer represented the "best value" and "highest price" reasonably available to shareholders. Among other things, the SAC alleges facts that suggest that the Special Committee and its advisors acknowledged that Brookfield's bid offered a better value and a higher price compared to the CPPIB deal. The SAC also alleges facts -- not disclosed in the proxy materials -- permitting a reasonable inference that, at the time the Board voted to approve the deal with CPPIB, Brookfield remained willing to engage on more favorable terms. B. Omnicare Issues The Pattern Energy Defendants argue that the Report failed to consider Omnicare, Inc. v. Laborers District Council Industrial Pension Fund, 575 U.S. 175 (2015). They, however, did not raise the Omnicare decision before Judge Hall: They did not cite Omnicare in their briefing, nor raise it oral argument. Judge Noreika not hear arguments made for the first time in objections to a Report when those objections could have and should have been made in the motion addressed by the Magistrate Judge. C. Individual Defendants The Pattern Energy Defendants object to the Report's conclusion that the Section 20(a) claim is adequately pleaded against the Individual Defendants, arguing that the Plaintiffs cannot allege a predicate Section 14(a) violation and because the Plaintiffs fail to adequately allege that each Individual Defendant was a "control person" with respect to the challenged statements. Judge Noreika disagrees. She says, the Court has already found that the SAC plausibly alleges a Section 14(a) violation. Moreover, after reviewing the entirety of the record, she agrees that this argument was not fairly raised in the briefing on the motion and the Magistrate Judge properly declined to entertain the argument. III. Conclusion For the reasons she stated, Judge Noreika overruled the Pattern Energy Defendants' objections to the Report and adopted the Report. She granted in part and denied the Pattern Energy Defendants' Motion to Dismiss and granted Riverstone's Motion to Dismiss. A form of order will follow. A full-text copy of the Court's March 30, 2022 Memorandum Opinion is available at https://tinyurl.com/25vssp68 from Leagle.com. Sue L. Robinson -- srobinson@farnanlaw.com -- Brian E. Farnan, Michael J. Farnan, FARNAN LLP, Wilmington, DE; Andrew J. Entwistle -- aentwistle@entwistle-law.com -- ENTWISTLE & CAPPUCCI LLP, Austin, TX; Vincent R. Cappucci, Arthur V. Nealon, Brendan J. Brodeur, Jonathan H. Beemer, Jessica A. Margulis, ENTWISTLE & CAPPUCCI LLP, in New York City -- Lead and Liaison Counsel for the Lead Plaintiffs and the Class. Marc M. Seltzer, Krysta Kauble Pachman, SUSMAN GODFREY L.L.P., in Los Angeles, California 90067 -- Of Counsel for the Class. A. Thompson Bayliss -- Bayliss@AbramsBayliss.com -- April M. Kirby, ABRAMS & BAYLISS LLP, in Wilmington, Delaware; Alan S. Goudiss -- agoudiss@shearman.com -- K. Mallory Brennan -- mallory.brennan@shearman.com -- SHEARMAN & STERLING LLP, New York, NY; Christina E. Myrold, SHEARMAN & STERLING LLP, in San Francisco, California -- Attorneys for Defendants Pattern Energy Group Inc., Alan R. Batkin, Edmund John Philip Browne, Richard A. Goodman, Douglas G. Hall, Patricia M. Newson, Mona K. Sutphen, Michael Garland, Hunter Armistead, Daniel Elkort, Michael Lyon, Esben Pedersen, and Christopher Shugart. PEPSICO INC: Faces Class Action Following Kronos Payroll Hack ------------------------------------------------------------- Pan Demetrakakes, writing for Food Processing, reports that PepsiCo is being sued in three states by workers charging that they were shorted on wages following a cyberattack against a payroll service used by the company. The situation came about because of a ransomware attack on Kronos, one of the world's biggest third-party payroll and human-resources services. The attack last December shut off access for several weeks to Kronos Private Cloud, used by thousands of employers to manage their payrolls. In the wake of the attack, half a dozen lawsuits were filed against different companies that use Kronos, charging them with pay violations. PepsiCo has been sued in New York, New Jersey and Virginia. The New York suit claims that when the Kronos service went down, PepsiCo had no backup plan to manage payroll and started issuing paychecks with "estimated weekly pay" that did not reflect actual hours worked. The suits are asking for class-action status, back pay and damages. [GN] PETSMART LLC: Suit Accuses Retailer of Mishandling Employees' Data ------------------------------------------------------------------ retailtouchpoints.com reports that a former Illinois-based employee of PetSmart has filed a putative class action against the pet goods retailer, accusing the company of violating the state's Biometric Information Privacy Act (BIPA) by collecting employees' voiceprints in ways that could leave them open to identity theft. According to the 2008 Illinois BIPA law, the "collection, use, safeguarding and storage of biometrics" - such as voiceprints - by a private entity must be regulated due to the access they afford to sensitive personal and financial information, including genetic markers and testing information, accounts, PIN codes, driver's licenses and social security numbers. The case of Steven Stegmann v. PetSmart LLC alleges that Stegmann and other employees were not provided written notice prior to using the technology, nor were they afforded the opportunity to sign a written release. Stegmann also alleges that PetSmart did not provide a written policy outlining a retention schedule of guidelines for permanently destroying the biometric information. It is alleged that PetSmart required more than 700 employees to use technology over the course of five years that preceded the filing. While technology that collects biometric information can include fingerprinting, facial recognition and eye scans, the system used by PetSmart relies on collecting voiceprints of users. The lawsuit notes that through a headset worn by the employee, workers received orders from a central worker management computer. Tasks would be completed by the employee through interacting with the voice-recognition software. The individual voice template is added to the employee's data file, which connects the voiceprint to the worker's identifying information such as name and employee number. By not being informed of the entire process, in addition to storage and disposal of the data, the Stegmann lawsuit argues that employees were unknowingly made vulnerable to cyber threats. The law requires entities that utilize biometric identifiers to develop a written policy regarding intentions of usage, a retention schedule and how the information will be destroyed. Prior to collecting biometric identifiers, subjects must be informed by the entity gathering the information regarding its collection; how it will be used, collected and stored; and the purpose of the collection. Entities must also receive a written release from subjects. "The Illinois Biometric Information Privacy Act is a very important law," said David Fish of Fish, Potter Bolanos P.C., an employment legal firm representing the plaintiff, in an email to Retail TouchPoints. "We look forward to litigating this cutting edge and important case in court." Parties that violate the law could be responsible for damages of up to $1,000 for negligent infractions and $5,000 per violation for incidents that are found to be intentional, in addition to attorney's fees. The plaintiff's proposed class includes "[a]ll persons, within the applicable statute of limitations, who had their voiceprint collected, captured, received, otherwise obtained, or disclosed by Defendant in Illinois, without their consent, and/or who failed to have their voiceprint timely deleted." PetSmart responded to Retail TouchPoints' request for comment regarding the filing by noting, "Out of respect for all parties involved, as a practice, we do not comment on pending litigation." The original Jan. 20, 2022, filing of the lawsuit was made through the LaSalle County Circuit Court. It was removed to the Illinois Northern District Court on March 4, 2022. [GN] PHILIPPINE AIRLINES: Fails to Provide Full Refunds, Flores Says --------------------------------------------------------------- GEMNAIKA FLORES, individually and on behalf of all others similarly situated v. PHILIPPINE AIRLINES, INC. and PAL HOLDINGS, INC., Case No. 4:22-cv-02281 (N.D. Cal., April 12, 2022) is a class action lawsuit regarding Defendants' failure to provide full refunds to customers whose flights were canceled or were subject to a significant schedule change and not refunded as a result of the COVID-19 pandemic. Given the outbreak of the coronavirus, PAL have canceled a vast percentage of their international and U.S. flights. However, PAL have refused to issue refunds for flights that they canceled or significantly altered. On December 17, 2019, the Plaintiff purchased two roundtrip tickets departing on April 22, 2020, from San Francisco to Manila, the Philippines for $1,356.08. However, on April 5, 2020, PAL canceled Plaintiff's flights. The Plaintiff immediately attempted to secure a voucher. But after realizing that she would be unable to fly during the COVID-19 pandemic, Plaintiff requested that PAL issue her a refund. On July 30, 2020, Plaintiff received a confirmation email from a PAL representative, Cecilia A. Murillo, that her refund request had been filed and that she should "allow 3-6 months processing." After nearly six months, Plaintiff emailed Ms. Murillo on December 10, 2020 to request the status of her refund. Ms. Murillo responded on December 10, 2020 stating that "all refunds are being handled by our head office" and that Plaintiff should allow for additional processing. All told, Plaintiff sent a total of 8 emails and called 10 times. PAL's representations to Plaintiff never materialized, says the suit. Philippine Airlines, a trade name of PAL Holdings, Inc. and also known historically as Philippine Air Lines until 1970, is the flag carrier of the Philippines.[BN] The Plaintiff is represented by: Neal J. Deckant, Esq. Sean L. Litteral, Esq. BURSOR & FISHER, P.A. 1990 North California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ndeckant@bursor.com slitteral@bursor.com PLAYSTUDIOS INC: Levi & Korsinsky Reminds of June 6 Deadline ------------------------------------------------------------ Levi & Korsinsky, LLP on April 10 disclosed that a MYPS class action lawsuit has been filed on behalf of investors who purchased Playstudios, Inc. (MYPS) (a) purchased, or otherwise acquired securities of Playstudios between June 22, 2021, and March 1, 2022, both dates inclusive, including, but not limited to, those who purchased or acquired Playstudios securities pursuant to the offering of the private investment in public equity ("PIPE" offering); (b) held common stock of Acies as of May 25, 2021, and were eligible to vote at Acies' June 16, 2021, special meeting who exchanged their shares of Acies stock for shares of Playstudios stock pursuant to the merger of Acies and Old Playstudios (the "Merger"); and/or (c) purchased or otherwise acquired Playstudios common stock pursuant to or traceable to Acies' documents issued in connection with the June 2021 Merger. For more on the MYPS Lawsuit please contact us today. According to the Playstudios lawsuit, throughout the Class Period defendants made false and/or misleading statements and/or failed to disclose that: (i) Playstudios was having significant problems with its flagship game, Kingdom Boss; (ii) Playstudios would not be releasing Kingdom Boss as expected; and (iii) Playstudios had not revised its financial projections to account for the problems it had encountered with Kingdom Boss. As a result of the defendants' wrongful conduct, Class members paid artificially inflated prices for their Playstudios securities and suffered substantial losses and damages. If you suffered a loss in Playstudios you have until June 6, 2022, to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. CONTACT: Levi & Korsinsky, LLP Joseph E. Levi, Esq. 55 Broadway, 10th Floor New York, NY 10006 jlevi@levikorsinsky.com Tel: (212) 363-7500 Fax: (212) 363-7171 www.zlk.com [GN] PLAYSTUDIOS INC: Robbins Geller Reminds of June 6 Deadline ---------------------------------------------------------- The law firm of Robbins Geller Rudman & Dowd LLP announces that the Playstudios class action lawsuit seeks to represent investors who: (1) purchased Playstudios, Inc. (NASDAQ: MYPS; MYPSW) securities between June 22, 2021 and March 1, 2022, inclusive (the "Class Period"), including, but not limited to, those who purchased or acquired Playstudios securities pursuant to the offering of the private investment in public equity ("PIPE" offering); (2) held common stock of Acies Acquisition Corp. as of May 25, 2021 and were eligible to vote at Acies' June 16, 2021 special meeting who exchanged their shares of Acies stock for shares of Playstudios stock pursuant to the merger of Acies and Old Playstudios (defined below); and (3) purchased or otherwise acquired Playstudios common stock pursuant to or traceable to Acies' Registration Statement and Proxy Statement issued in connection with the June 2021 merger. Investors have until June 6, 2022 to seek appointment in the Playstudios class action lawsuit. Commenced on April 5, 2022, the Playstudios class action lawsuit - captioned Felipe v. Playstudios, Inc., No. 22-cv-02164 (N.D. Cal.) - charges Playstudios, its CEO, and others with violations of the Securities Act of 1933 and/or Securities Exchange Act of 1934. If you suffered significant losses and wish to serve as lead plaintiff of the Playstudios class action lawsuit, please provide your information by clicking here. You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the Playstudios class action lawsuit must be filed with the court no later than June 6, 2022. CASE ALLEGATIONS: Acies is a "blank check" special purpose acquisition company ("SPAC") formed in October 2020. On February 1, 2021, Acies announced that it had reached a merger agreement with Playstudios, a privately-held gaming company ("Old Playstudios"). In the press release announcing the merger, Playstudios announced that the transaction implied an enterprise valuation for Playstudios of $1.1 billion and that the consideration to Old Playstudios shareholders for the merger would comprise at least 89.1 million shares of Acies common stock, worth $10 per share, up to $150 million in cash, and a $250 million investment PIPE of common stock of Acies. The Playstudios class action lawsuit alleges that Playstudios made misleading statements and omissions regarding the true state of Playstudios' development of its flagship game Kingdom Boss and about its financial projections and future prospects in the Registration Statement and Proxy Statement and subsequent statements. The projections were expressly premised on a successful and timely launch of Kingdom Boss. For example, in the Registration Statement and Proxy Statement, Playstudios told investors that "Kingdom Boss, which began development in 2020, will launch as expected in the second half of 2021." The Playstudios class action lawsuit further alleges that, at the same time the projections of revenue and profits were being publicly made, Playstudios knew that Kingdom Boss had encountered difficulties in its design and implementation that would cause the launch to be substantially delayed. On August 11, 2021, Playstudios revealed for the first time that the Kingdom Boss launch was being delayed until later in the year and investors should expect decreased revenues and profits during the year as a result. On this news, Playstudios' stock price declined by approximately 13%. Then, on February 24, 2022, Playstudios' CEO, defendant Andrew Pascal, disclosed that Kingdom Boss would not be launched at all: "As I've shared, [Kingdom Boss] has struggled to achieve all the criteria that were established for a full-scale launch even after making the game available in North America late in the fourth quarter. And while Boss Fight [the developer] has consistently assured us that based on their experience, the product is on a constructive path, currently, we've elected to suspend development and reevaluate our options." On this news, Playstudios' stock price fell by approximately 5%. Since the merger, and as a result of the disclosures of material adverse facts omitted from the Registration Statement, Playstudios' stock price has traded approximately 60% below the $10 per share price upon the closing of the merger. Robbins Geller has launched a dedicated SPAC Task Force to protect investors in blank check companies and seek redress for corporate malfeasance. Comprised of experienced litigators, investigators, and forensic accountants, the SPAC Task Force is dedicated to rooting out and prosecuting fraud on behalf of injured SPAC investors. The rise in blank check financing poses unique risks to investors. Robbins Geller's SPAC Task Force represents the vanguard of ensuring integrity, honesty, and justice in this rapidly developing investment arena. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who: (1) purchased Playstudios securities during the Class Period; (2) held common stock of Acies as of May 25, 2021 and was eligible to vote at Acies' June 16, 2021 special meeting who exchanged its shares of Acies stock for shares of Playstudios stock pursuant to the merger; and (3) purchased or otherwise acquired Playstudios common stock pursuant to or traceable to Acies' Registration Statement and Proxy Statement issued in connection with the June 2021 merger to seek appointment as lead plaintiff in the Playstudios class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the class action lawsuit. An investor's ability to share in any potential future recovery of the class action lawsuit is not dependent upon serving as lead plaintiff. About Robbins Geller Robbins Geller Rudman & Dowd LLP is one of the world's leading complex class action firms representing plaintiffs in securities fraud cases. The Firm is ranked #1 on the 2021 ISS Securities Class Action Services Top 50 Report for recovering nearly $2 billion for investors last year alone - more than triple the amount recovered by any other plaintiffs' firm. With 200 lawyers in 9 offices, Robbins Geller's attorneys have obtained many of the largest securities class action recoveries in history, including the largest securities class action recovery ever - $7.2 billion - in In re Enron Corp. Sec. Litig. Please visit http://www.rgrdlaw.com for more information. [GN] PLAYSTUDIOS INC: Robbins LLP Discloses Securities Class Action -------------------------------------------------------------- The Class: Shareholder rights law firm Robbins LLP reminds investors that a shareholder filed a class action on behalf of three classes of persons and entities: those that purchased or otherwise acquired Playstudios, Inc. (NASDAQ: MYPS) securities between June 22, 2021 and March 1, 2022, including Playstudios securities acquired pursuant to the offering of the public investment in public equity offering; held common stock of Acies Acquisition Corp. as of May 25, 2021, and were eligible to vote at Acies' June 16, 2021 special meeting who exchanged their shares of Acies stock for shares of Playstudios stock pursuant to the merger of Acies and Old Playstudios; or purchased or otherwise acquired Playstudios common stock pursuant to the Acies' Offering documents in connection with the June 2021 merger. What is this Case About: Playstudios, Inc. (MYPS) Misled Investors in its Offering Documents in Support of its SPAC Merger According to the complaint, throughout the class period, including at the time of the merger between Acies Acquisition Corp. and Playstudios, the Company repeatedly represented to investors that Kingdom Boss - Playstudios' highly anticipated flagship game - was "on track" for release in 2021 and that Playstudios would enjoy substantial revenue and profits as a result of the game's launch and subsequent sales. On February 24, 2022, Playstudios filed its annual report for 2021 with the SEC and issued a press release summarizing financial results for the fourth quarter and year ended December 31, 2021. On this news, Playstudios stock price fell 5%, to close at $4.86 per share on February 25, 2022. Then, on February 26, 2022, Playstudios CEO attributed the failure to meet the projections made for revenue and earnings to the failure to launch Kingdom Boss and revealed that Kingdom Boss was indefinitely "suspended." Next Steps: If you acquired shares of Playstudios, Inc. (MYPS) pursuant to one of the classes listed above, contact us to discuss the opportunity to act as lead plaintiff for the class. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. You do not have to participate in the case to be eligible for a recovery. All representation is on a contingency fee basis. Shareholders pay no fees or expenses. [GN] PLAYSTUDIOS, INC: Robbins Geller Reminds of June 6 Deadline ----------------------------------------------------------- The law firm of Robbins Geller Rudman & Dowd LLP on April 10 disclosed that the Playstudios class action lawsuit seeks to represent investors who: (1) purchased Playstudios, Inc. (NASDAQ: MYPS; MYPSW) securities between June 22, 2021 and March 1, 2022, both dates inclusive (the "Class Period"), including, but not limited to, those who purchased or acquired Playstudios securities pursuant to the offering of the private investment in public equity ("PIPE" offering); (2) held common stock of Acies Acquisition Corp. as of May 25, 2021 and were eligible to vote at Acies' June 16, 2021 special meeting who exchanged their shares of Acies stock for shares of Playstudios stock pursuant to the merger of Acies and Old Playstudios (defined below); and (3) purchased or otherwise acquired Playstudios common stock pursuant to or traceable to Acies' Registration Statement and Proxy Statement issued in connection with the June 2021 merger. Investors have until June 6, 2022 to seek appointment in the Playstudios class action lawsuit. Commenced on April 5, 2022, the Playstudios class action lawsuit -- captioned Felipe v. Playstudios, Inc., No. 22-cv-02164 (N.D. Cal.) -- charges Playstudios, its CEO, and others with violations of the Securities Act of 1933 and/or Securities Exchange Act of 1934. If you suffered significant losses and wish to serve as lead plaintiff of the Playstudios class action lawsuit, please provide your information by clicking here. You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the Playstudios class action lawsuit must be filed with the court no later than June 6, 2022. CASE ALLEGATIONS: Acies is a "blank check" special purpose acquisition company ("SPAC") formed in October 2020. On February 1, 2021, Acies announced that it had reached a merger agreement with Playstudios, a privately-held gaming company ("Old Playstudios"). In the press release announcing the merger, Playstudios announced that the transaction implied an enterprise valuation for Playstudios of $1.1 billion and that the consideration to Old Playstudios shareholders for the merger would comprise at least 89.1 million shares of Acies common stock, worth $10 per share, up to $150 million in cash, and a $250 million investment PIPE of common stock of Acies. The Playstudios class action lawsuit alleges that Playstudios made misleading statements and omissions regarding the true state of Playstudios' development of its flagship game Kingdom Boss and about its financial projections and future prospects in the Registration Statement and Proxy Statement and subsequent statements. The projections were expressly premised on a successful and timely launch of Kingdom Boss. For example, in the Registration Statement and Proxy Statement, Playstudios told investors that "Kingdom Boss, which began development in 2020, will launch as expected in the second half of 2021." The Playstudios class action lawsuit further alleges that, at the same time the projections of revenue and profits were being publicly made, Playstudios knew that Kingdom Boss had encountered difficulties in its design and implementation that would cause the launch to be substantially delayed. On August 11, 2021, Playstudios revealed for the first time that the Kingdom Boss launch was being delayed until later in the year and investors should expect decreased revenues and profits during the year as a result. On this news, Playstudios' stock price declined by approximately 13%. Then, on February 24, 2022, Playstudios' CEO, defendant Andrew Pascal, disclosed that Kingdom Boss would not be launched at all: "As I've shared, [Kingdom Boss] has struggled to achieve all the criteria that were established for a full-scale launch even after making the game available in North America late in the fourth quarter. And while Boss Fight [the developer] has consistently assured us that based on their experience, the product is on a constructive path, currently, we've elected to suspend development and reevaluate our options." On this news, Playstudios' stock price fell by approximately 5%. Since the merger, and as a result of the disclosures of material adverse facts omitted from the Registration Statement, Playstudios' stock price has traded approximately 60% below the $10 per share price upon the closing of the merger. Robbins Geller has launched a dedicated SPAC Task Force to protect investors in blank check companies and seek redress for corporate malfeasance. Comprised of experienced litigators, investigators, and forensic accountants, the SPAC Task Force is dedicated to rooting out and prosecuting fraud on behalf of injured SPAC investors. The rise in blank check financing poses unique risks to investors. Robbins Geller's SPAC Task Force represents the vanguard of ensuring integrity, honesty, and justice in this rapidly developing investment arena. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who: (1) purchased Playstudios securities during the Class Period; (2) held common stock of Acies as of May 25, 2021 and was eligible to vote at Acies' June 16, 2021 special meeting who exchanged its shares of Acies stock for shares of Playstudios stock pursuant to the merger; and (3) purchased or otherwise acquired Playstudios common stock pursuant to or traceable to Acies' Registration Statement and Proxy Statement issued in connection with the June 2021 merger to seek appointment as lead plaintiff in the Playstudios class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the class action lawsuit. An investor's ability to share in any potential future recovery of the class action lawsuit is not dependent upon serving as lead plaintiff. ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: Robbins Geller Rudman & Dowd LLP is one of the world's leading complex class action firms representing plaintiffs in securities fraud cases. The Firm is ranked #1 on the 2021 ISS Securities Class Action Services Top 50 Report for recovering nearly $2 billion for investors last year alone – more than triple the amount recovered by any other plaintiffs' firm. With 200 lawyers in 9 offices, Robbins Geller's attorneys have obtained many of the largest securities class action recoveries in history, including the largest securities class action recovery ever – $7.2 billion – in In re Enron Corp. Sec. Litig. Please visit http://www.rgrdlaw.comfor more information. Attorney advertising. Past results do not guarantee future outcomes. Services may be performed by attorneys in any of our offices. Contacts: Robbins Geller Rudman & Dowd LLP 655 W. Broadway, San Diego, CA 92101 J.C. Sanchez, 800-449-4900 jsanchez@rgrdlaw.com [GN] POST ALARMS: Fails to Pay All Final Wages Due, Lopez Suit Alleges ----------------------------------------------------------------- SERENA LOPEZ, on behalf of herself and all others similarly situated, and on behalf of the general public v. POST ALARMS SYSTEMS, a California Corporation, and DOES 1 through 10, inclusive, Case No. 22STCV12380 (Cal. Super., Los Angeles Cty., April 12, 2022) is a Representation Action, pursuant to Labor Code Sections 2698, 2699 et seq., on behalf of Plaintiff and certain individuals who are employed by, or were formerly employed by, Post Alarms Systems, and any subsidiaries or affiliated companies within California. For at least one year prior to the filing of this action and continuing to the present, the Defendants have had a consistent policy of failing to pay all final wages due at termination or within 72 hours after separation to all employees in California, and failing to provide employees with accurately itemized wage statements. The Plaintiff and Defendant's California employees were routinely unable, and not authorized to take their 10 minute rest periods and were also unable to take an uninterrupted 30 minute meal break for every shift they worked. Specifically, the Plaintiff and other California employees were further forced to keep their walkie talkies on during their meal and rest breaks in case of emergencies or to address the needs of Defendants' personnel. Because of this, the Plaintiff and Defendant's California employees were unable to take their required meal and rest breaks. Moreover, Defendants failed to pay premium wages of one hour's pay for each missed meal and rest break to Plaintiff and Defendants' California employees who were denied timely meal and rest breaks, in violation of Labor. The Plaintiff also claims that Defendant has failed to pay all overtime wages due to non-10 exempt employees. As a result, employees are not properly compensated for work performance in 11 excess of eight hours in a workday and work performed in excess of 40 hours in a workweek at a rate of no less than one and one-half times the regular rate of pay. Ms. Lopez is a resident of Pasadena, California. She was employed by Defendants in Los Angeles County, California. The Plaintiff was employed by Defendants as a non-exempt, hourly employee in California, including in and around the city of Arcadia, County of Los Angeles. Post Alarm Systems is a full service commercial and residential security company provides best security solutions, installation and service.[BN] The Plaintiff is represented by: Roman Otkupman, Esq. OTKUPMAN LAW FIRM, A LAW CORPORATION 5743 Corsa Ave., Suite 123 Westlake Village, CA, 91362 Telephone: (818) 293-5623 Facsimile: (888) 850-1310 E-mail: Roman@OLFLA.com PRINCETON UNIVERSITY: Court Narrows Claims in Corbitt Class Suit ---------------------------------------------------------------- In the case, ANDRE CORBITT, Individually and on behalf of a Class of Similarly Situated Individuals, Plaintiff v. TRUSTEES OF PRINCETON UNIVERSITY, et al., Defendants, Civil Action No. 21-899 (E.D. Pa.), Judge Cynthia M. Rufe of the U.S. District Court for the Eastern District of Pennsylvania granted in part and denied in part the Defendants' motion to dismiss the Plaintiff's claims in their entirety. I. Background Plaintiff Corbitt brings the putative class action against the Trustees of Princeton University, the Princeton University Benefits Committee (together, the "Princeton Defendants"), Aetna Life Insurance Co., and the Rawlings Co., LLC, for allegedly violating the Employee Retirement Income Security Act of 1974 ("ERISA") and New Jersey law by demanding reimbursement for benefits the Plaintiff received through his employer's health plan. The Plaintiff was a beneficiary of the Princeton University Health Care Plan, which the Princeton Defendants sponsored and administered. In 2016, the Plaintiff suffered serious injuries in an accident and received benefits under the Plan. He pursued a personal injury lawsuit against the tortfeasors and received compensation after settling his case. While the underlying suit was pending, the Defendants sent letters to the Plaintiff's personal injury attorney to inform him of their intent to seek reimbursement for the benefits he received. The subrogation provision in the Summary Plan Description ("SPD") states that: "In the event that you suffer an injury or sickness as a result of an alleged negligence or wrongful act or omission of a third party, the Princeton University Health Care Plan has the right to pursue subrogation against any person or the insurer. The Princeton University Health Care Plan will be subrogated and succeed to your right of recovery against any person or insurer. The Princeton Plan may use this right to the extent of the benefits under the Plan. You must agree to help the Princeton University Health Care Plan use this right when requested." The Plaintiff reimbursed the Plan and then filed the putative class action in the Montgomery County Court of Common Pleas. He alleges that the subrogation provision is unenforceable because it only appears in the SPD, and further avers that this provision does not permit Defendants to seek reimbursement from Plan members. The Plaintiff seeks to represent a proposed class consisting of Plan members from whom the Defendants demanded reimbursement upon settling their personal injury cases. The Defendants removed the case to the Court and seek to dismiss the Plaintiff's claims. II. Discussion A. Failure to Exhaust Administrative Remedies The Defendants first argue that the Plaintiff's claim for benefits under the Plan fails because he has not exhausted his administrative remedies. The Plaintiff argues that the Court should not consider exhaustion at the motion to dismiss stage because "the exhaustion requirement is a nonjurisdictional affirmative defense." Judge Rufe finds that the Plaintiff's Complaint includes an excerpt of the "About Your Benefits" SPD that describes the plan's subrogation rights. Two letters appended to the Complaint show that the Rawlings Company corresponded with the Plaintiff's personal injury attorney regarding subrogation, but do not, for example, include a description of the plan's review procedures and applicable time limits, or other information in the statute. The Defendants attached to their reply brief a letter to the Plaintiff's personal injury attorney stating that the Plan had a "lien/claim for medical benefits" and an email to the same attorney stating that the SPD and the "ERISA Affidavit" were attached, although the attachments cannot be viewed in the exhibit. "A court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." In his sur-reply memorandum, the Plaintiff refers to these documents as "purported" but appears to concede that the SPD was sent at the request of the personal injury attorney and argues that the "demand letters were sent without the SPD attached and did not reference any portion of the SPD." Given the seeming dispute over these documents, the fact-sensitive inquiry required to determine whether the notice the Plaintiff received was substantially compliant, and recognizing that courts look to all of the communications between the parties when assessing the adequacy of notice, Judge Rufe will not dismiss Count I at this time. B. Preemption The Defendants next argue that ERISA preempts the Plaintiffs' state law claims. The Plaintiff alleges that the Defendants violated New Jersey's collateral source statute as well as the New Jersey Consumer Fraud Act ("CFA"). He also brings six common law claims against the Defendants, including claims for breach of contract, breach of the duty of good faith and fair dealing, legal fraud, unjust enrichment, directing or permitting conduct of another, and acting in concert. His sole argument against preemption is that the health plan at issue contains a choice-of-law provision stating that "the plan will be construed and enforced according to New Jersey law." Judge Rufe opines that the Plaintiff offers no pertinent authority to support the contention that a choice-of-law provision in a healthcare plan that is subject to ERISA defeats preemption, and the cases specifically addressing the issue reject this contention. The Plaintiff has not argued that any of his state law claims satisfy an exclusion under ERISA's express preemption provision. Claims under New Jersey's collateral source statute and claims arising under the CFA are expressly preempted. ERISA also expressly preempts fraud, breach of contract, unjust enrichment, and breach of the implied covenant of good faith and fair dealing claims. As all of the Plaintiff's state law claims concern the Defendants' exercise of the Plan's subrogation clause, they are preempted under ERISA. Accordingly, the Plaintiff's state law claims (Count I and Counts IX through XV) will be dismissed with prejudice. C. Breach of Fiduciary Duty Claims 1. Counts III-VI The Defendants seek to dismiss the Plaintiff's fiduciary claims under ERISA, and first contend that four of the Plaintiff's breach of fiduciary duty claims should be dismissed as duplicative of the Plaintiff's benefits claim. Judge Rufe opines that at this early stage in the litigation, the Defendants' "argument is premature as the Plaintiff may plead in the alternative, and the merits are better addressed on a more developed record." Although the Plaintiff seeks both damages and equitable relief when only equitable relief is available for these claims, Judge Rufe will not dismiss them on that basis alone. Accordingly, the Defendants' motion to dismiss Counts III through VI will be denied. 2. Count VII The Defendants next argue that the Plaintiff's claim for breach of a fiduciary duty under Section 503 and its accompanying regulation should be dismissed because ERISA does not provide a private cause of action for the conduct alleged. The Plaintiff alleges that the Plan violated Section 503 and 29 C.F.R. Section 2560.503-1 because it "failed to establish and follow reasonable claims procedures" and "did not follow its administrative processes when it failed to provide Plaintiff a Notice of Adverse Benefits Determination." He contends that this cause of action is still viable as he is solely seeking equitable relief for these alleged violations. As the Third Circuit has held that Section 503 and 29 C.F.R. Section 2560.503-1 are unenforceable through ERISA's civil enforcement mechanism, a separate cause of action is unavailable in this instance. The fact that the Plaintiff solely seeks equitable relief for this claim is inconsequential, and this claim will be dismissed with prejudice. 3. Count VIII Lastly, the Defendants seek to dismiss the Plaintiff's claim for breach of a fiduciary duty, which he claims was breached when the Defendants used the SPD both as an operative plan document and as a summary plan description instead of having separate documents. The Plaintiff argues that the Defendant's position undermines the Supreme Court's holding in Cigna Corporation v. Amara, which concerned "a conflict between an SPD and a written instrument," not the issue of "whether an SPD can function as a written instrument." Judge Rufe finds the Plaintiff's argument unpersuasive; the Complaint alleges that Defendants violated ERISA because a separate written instrument did not exist, not that the SPD conflicted with another document. Additionally, the Plaintiff contends that the SPD must be formally adopted or designated as a formal plan document to be enforceable, but has failed to identify authority that suggests this is correct when there are no other plan documents. Accordingly, this claim will be dismissed. III. Conclusion At this early stage, the Plaintiff may proceed with his benefits claim and breach of fiduciary claims in Counts I, III, IV, V, and VI. Under ERISA's preemption provisions, the Plaintiff's state law claims contained in Counts II, IX, X, XI, XII, XIII, XIV, and XV will be dismissed. Likewise, Count VII will be dismissed for alleging a nonexistent cause of action, and Count VIII will be dismissed for failure to state a claim upon which relief may be granted. An order will be entered. A full-text copy of the Court's March 30, 2022 Memorandum Opinion is available at https://tinyurl.com/3drbr4am from Leagle.com. QUEBEC: Claims Process in Groundwater Suit in Shannon Discussed --------------------------------------------------------------- The parties in this case are pleased to announce that following the March 31, 2022, Superior Court of Quebec decision, the residents of Cannon Street (situated in the municipality of the Saint-Gabriel-de-Valcartier) can now submit their claims. The Claims period has also been extended for all claimants and will now end on January 15, 2023. On December 23, 2020, the Supreme Court of Canada declined to grant leave to appeal to the parties. The January 17, 2020, decision of the Quebec Court of Appeal ordering Canada and the other defendants to pay moral and punitive damages in connection with the contamination of the groundwater in the municipality of Shannon has therefore put an end to the litigation between the parties. According to this decision and a subsequent decision dating November 1, 2021, persons aged 18 years and over on December 21, 2000, and who resided in certain specific areas of the municipality of Shannon or on Cannon Street (situated in the municipality of the Saint-Gabriel-de-Valcartier), Quebec, for at least a month during certain periods between April 1995 and June 2006 could be entitled to cumulative compensation ranging from $250 to $64,000, plus interest and additional indemnity accrued between July 16, 2007, and the date of payment of the compensation. Since the Supreme Court of Canada's decision was announced, the parties have been engaged in discussions with respect to the terms of the protocol that govern the individual claims process. The parties worked together throughout the discussions to develop this protocol and to ensure that the steps it sets out could be carried out promptly and efficiently. In the context of said discussions, the parties agreed to propose the services of a claims administrator to manage the claims process. This decision was made to ensure a rigorous, fast and efficient claims process. Last June 30, 2021, the Superior Court of Quebec approved the agreed-upon Claims protocol. The Claims process which has started July 10, 2021, is now open to claimants who have resided in all admissible zones during the included periods, including on Cannon Street. Additional information is available on the website created by the claims administrator for the Claims Process, at actioncollectiveshannon.ca. [GN] RCI DINING: Collier Files Suit Over Allege Tip Skimming ------------------------------------------------------- ALEXUS COLLIER; SHABRE WILLIAMS; NYKKEAH MANSFIELD; TORRECE MILTON; KIAJAH POWELL; ALEXYS COUCH; and HERAN SEIFU, individually and on behalf of all others similarly situated, Plaintiffs v. RCI DINING SERVICES (INDIANA), INC. d/b/a THE PONY; CHARLES GERALD WESTLUND, JR. a/k/a JERRY WESTLUND; and MATT JESSE, Defendants, Case No. 1:22-cv-00747-RLY-MG (S.D., Ind., April 13, 2022)seeks to recover mandatory minimum wage and overtime provisions of the Fair Labor Standards Act, illegally absconding with Plaintiffs' tips and demanding illegal kickbacks including in the form of "House Fees." Plaintiffs were employed by the Defendants as exotic dancers/entertainer. RCI DINING SERVICES (Indiana), INC. dba THE PONY operate an adult-oriented entertainment facility at Lafayette Rd., Indianapolis, IN. [BN] The Plaintiff is represented by: Brian Custy, Esq. CUSTY LAW FIRM 4004 Campbell St., Suite 4 Valparaiso, IN 46385 Telephone: (219) 286-7361 Facsimile: (317)458-2001 Email:bcusty@custylaw.com - and - Jarrett L. Ellzey, Esq. Leigh S. Montgomery, Esq. ELLZEY & ASSOCIATES, PLLC 1105 Milford Street Houston, TX Telephone: (713) 554-2377 Facsimile: (888) 276-3455 Email: jarrett@ellzeylaw.com leigh@ellzeylaw.com RED RIVER: Fails to Pay Restaurant Staff's Minimum Wage, Suit Says ------------------------------------------------------------------ NATHASHA KRUMBIEGEL, individually and on behalf of all others similarly situated v. RED RIVER INN INC., and RICK TRIPI, Case No. 2:22-cv-02114 (E.D.N.Y., April 12, 2022) seeks seeks relief for Defendants' unlawful actions, including compensation for unpaid minimum wages, overtime wages, spread-of-hours pay, unlawfully retained tips, liquidated damages, pre- and post-judgment interest, statutory damages for Defendants' notice violations, and attorneys' fees and costs, pursuant to the Fair Labor Standards Act and the New York Labor Law. The Defendants allegedly maintained a pattern and practice of failing to pay Plaintiff and other non-exempt employees, including servers and bartenders, the minimum wage rate for all hours worked, the overtime rate of one-and-one half times the regular hourly rate/applicable minimum wage rate for all hours worked in excess of forty per week, spread-of-hours pay for each workday their shift or shifts exceeded 10 hours per day, and all tips to which they were entitled. From August 3, 2019, to April 26, 2021, the Plaintiff was employed by the Defendants as a server/bartender. Throughout her employment with Red River, Plaintiff was a reliable and diligent worker with no record of disciplinary action., the suit says. Red River operates as restaurant and bar that sells food and drink, including alcoholic beverages, to the public for consumption on its premises, pickup, and/or delivery.[BN] The Plaintiff is represented by: Justin Ames, Esq. AKIN LAW GROUP PLLC 45 Broadway, Suite 1420 New York, NY 10006 Telephone: (212) 825-1400 Facsimile: (212) 825-1440 E-mail: justin@akinlaws.com REDWIRE CORPORATION: Securities Class Suit in Florida Underway -------------------------------------------------------------- Redwire Corporation disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on April 8, 2022, that a securities class action lawsuit filed against the company in Florida is underway. On December 17, 2021, the company, its CEO, Peter Cannito, and its CFO, William Read, were named as defendants in the putative class action complaint filed in the United States District Court for the Middle District of Florida. In the complaint, the plaintiff alleges that the company and certain of its directors and officers made misleading statements and/or failed to disclose material facts about the company's business, operations, and prospects, allegedly in violation of Section 10(b) (and Rule 10b-5 promulgated thereunder) and Section 20(a) of the Securities Exchange Act of 1934. As relief, the plaintiffs are seeking, among other things, compensatory damages. The defendants believe the allegations are without merit and intend to defend the suit vigorously. However, given the early stage of the proceedings, a reasonable estimate of the amount of any possible loss or range of loss cannot be made at this time. Redwire Corporation is an American aerospace manufacturer and space infrastructure technology company headquartered in Jacksonville, Florida. The company was formed on June 1, 2020 by the private equity firm AE Industrial Partners. ROCKPORT HEALTHCARE: Fails to Pay Workers' Wages After Kronos Hack ------------------------------------------------------------------ AMANDA LEE, individually and on behalf of all others similarly situated v. ROCKPORT HEALTHCARE SUPPORT SERVICES, LLC; ROCKPORT ADMINISTRATIVE SERVICES, LLC; VERNON HEALTHCARE CENTER, LLC; and DOES No. 1 through 50, inclusive, Case No. 2:22-cv-02437 (C.D. Cal., April 11, 2022) seeks to recover unpaid wages and other damages owed by the Defendants to the Plaintiff and Defendants' similar workers, who were the ultimate victims of not just the Kronos hack, but the Defendants' decision to make their own workforce bear the economic burden for the hack. Payroll systems were affected by the hack of Kronos in 2021. That hack led to problems in timekeeping and payroll throughout Defendants' organizations, says the suit. As a result, the Defendants' workers who were not exempt from the overtime requirements under federal and state law were not paid for all overtime hours worked or were not paid their proper overtime premium after the onset of the Kronos hack. Amanda Lee is one each such worker for Defendants. According to the complaint, the Defendants could have easily implemented a system to accurately record time and properly pay hourly and non-exempt employees until issues related to the hack were resolved. But they didn't. Instead, Defendants did not pay their non-exempt hourly and 9 salaried employees their full premium for all overtime hours worked, as required by federal and California law. The Defendants pushed the cost of the Kronos hack onto the most economically vulnerable people in their workforce. The Defendants made the economic burden of the Kronos hack fall on front-line 14 workers -- average Americans -- who rely on the full and timely payment of their wages to make ends meet. The Defendants' alleged failure to pay proper wages for all hours worked, including overtime hours, violates the Fair Labor Standards Act (FLSA) and applicable state law.[BN] The Plaintiff is represented by: Matthew S. Parmet, Esq. PARMET PC 340 S. Lemon Ave., No. 1228 Walnut, CA 91789 Telephone: (310) 928 1277 E-mail: matt@parmet.law RODAN + FIELDS: Settles Lash Boost Class Action for $38 Million --------------------------------------------------------------- Beauty Packaging reports that Rodan + Fields has offered to pay $38 million to resolve several class action lawsuits surrounding its Lash Boost product, a serum advertised to dramatically increase lash length and density. Plaintiffs in three class action lawsuits say that Lash Boost is actually a misbranded drug that can cause serious side effects. They specifically challenge the ingredient isopropyl cloprostenate, a prostaglandin analog—a type of chemical used in glaucoma treatments. Due to this drug ingredient, plaintiffs argue that Lash Boost should be regulated by the FDA and treated as a drug instead of an untested cosmetics product. According to the Lash Boost class action lawsuits, Rodan + Fields customers unknowingly used this medical drug near their eyes and put themselves at risk for adverse reactions such as eye irritation, macular edema, iris color change, and ocular inflammation. Furthermore, plaintiffs allege that the inclusion of isopropyl cloprostenate contradicts Rodan + Fields' marketing promises that Lash Boost is "not a drug product," "contains only cosmetic ingredients," and is "not associated with any significant side effects." Rodan + Fields didn't admit any wrongdoing but agreed to pay $38 million to resolve three Lash Boost class action lawsuits. Under the terms of the Lash Boost class action settlement, Class Members can collect either a cash payment or a credit voucher. In addition to providing cash, Rodan + Fields has agreed to make Lash Boost label changes to revise instructions, warnings and other information. [GN] SCHNEIDER NATIONAL: Johnson Appeals FLSA Suit Ruling to 7th Cir. ---------------------------------------------------------------- Plaintiff Robert Johnson filed an appeal from a court ruling entered in the lawsuit entitled Robert Johnson v. Schneider National Inc., Case No. 1:21-cv-00836-WCG, in the United States District Court for the Eastern District of Wisconsin. The lawsuit is brought over alleged violations of the Fair Labor Standards Act. The appellate case is captioned as Robert Johnson v. Schneider National Inc., Case No. 22-1556, in the United States Court of Appeals for the Seventh Circuit, filed on April 5, 2022. The briefing schedule in the Appellate Case states that: -- Docketing Statement was due for Appellant Robert Johnson by Aril 12, 2022; -- Transcript information sheet is due by April 19, 2022; and -- Appellant's brief due on or before May 16, 2022 for Robert Johnson.[BN] Plaintiff-Appellant ROBERT JOHNSON, individually and on behlaf of all others similarly situated, is represented by: James L. Simon, Esq. LAW OFFICES OF SIMON & SIMON 5000 Rockside Road Independence, OH 44131 Telephone: (216) 525-8890 Defendant-Appellee SCHNEIDER NATIONAL INC. is represented by: Joel H. Spitz, Esq. MCGUIREWOODS LLP 77 W. Wacker Drive Chicago, IL 60601-1818 Telephone: (312) 750-5704 SENTOSA NURSING: Settles Nurses' Wage Class Action for $3 Million ----------------------------------------------------------------- Alez Zorn, writing for Skilled Nursing News, reports that a recruitment agency in the Philippines, Sentosa Nursing Recruitment Agency, and two nursing homes agreed to pay more than $3 million to 184 nurses after a class action lawsuit was filed due to unpaid wages and violations of the Trafficking Victims Protection Act. The two nursing homes, Golden Gate Rehabilitation & Health Care Center LLC and Spring Creek Rehabilitation and Nursing Center, owned by SentosaCare, are located in New York. A New York federal judge green lit the deal on April 7, five years after the lawsuit was first filed. The defendants settlement will resolve all claims for compensatory damages, punitive damages, interest, attorney's fees and costs. Each class member of the lawsuit will receive the full amount of compensatory damages awarded to them, plus 9% annual interest, according to court documents. The lawsuit, brought in March 2017 by Rose Ann Paguirigan on behalf of more than 200 nurses who were recruited in the Philippines to work at the Sentosa nursing homes, alleged that the defendants refused to pay wages required by their employment contracts. The workers were threatened with civil litigation, professional disciplinary proceedings and criminal charges to keep them from leaving, according to court documents. The complaint claims that a substantial number of foreign nurses were employed as RN managers and were not paid in full. It also argued that the $25,000 contract termination fee -- referred to as an indentured servitude penalty -- should not be allowed to be enforced. A previous New York State Supreme Court case from 2010, SentosaCare LLC v. Anilao, had ruled that the indentured servitude penalty in Sentosa's employment contract was unenforceable. The plaintiffs argued that the reason for filing the lawsuits was not to recover actual losses, but to send a message to all foreign nurses that they could face civil litigation and incur substantial legal fees if they stop working. Since 2006, the defendants have filed lawsuits against at least 30 foreign nurses, according to court records. Compensatory damages were calculated as the difference between the weekly salary class members would have received if they had been paid a salary at the applicable prevailing wage rate, and the compensation they actually received each week on an hourly wage basis, plus interest. For example, the lawsuit determined that one of the plaintiffs should receive a settlement payment of $22,400.18, comprising $16,005.09 for prevailing wage underpayments and $6,395.09 for 9% interest. Requests for comment from SentosaCare's attorneys were not immediately returned. [GN] SEPHORA USA: Pays Manual Workers Every Other Week, Espinal Alleges ------------------------------------------------------------------ ROSALBA ESPINAL, individually and on behalf of all others similarly situated v. SEPHORA USA, INC., Case No. 1:22-cv-03034 (S.D.N.Y., April 12, 2022) is a class action on behalf of all employees of Sephora in the State of New York that engage or have engaged in manual work in the course of their employment. New York Law requires companies to pay their manual workers on a weekly basis unless they receive an express authorization to pay on a semi-monthly basis from the New York State Department of Labor Commissioner. The Defendant has received no such authorization from the New York State Department of Labor Commissioner. The Defendant has allegedly violated and continues to violate this law by paying its manual workers every other week rather than on a weekly basis. The Plaintiff demands liquidated damages, interest, and attorneys' fees on behalf of herself and a putative class comprised of all manual workers employed by Defendant in New York State over the last six years. Sephora operates as a cosmetics and beauty stores. The Plaintiff was employed by Defendant from January 2020 to March 2021 at a Sephora store located at 750 Lexington Ave., New York, New York. [BN] The Plaintiff is represented by: Yitzchak Kopel, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: ykopel@bursor.com aleslie@bursor.com SHOPIFY INC: Faces Class Action in Delaware Over Data Breach ------------------------------------------------------------ Chayanika Deka, writing for Crypto Potato, reports that Shopify, Ledger, and TaskUs are facing a class-action lawsuit over the major data breach two years ago. A group of Ledger users has filed a class-action lawsuit in the United States District Court of Delaware against Global e-commerce platform Shopify, its third-party data consultant TaskUs as well as the hardware wallet maker itself. Another Lawsuit According to the official document, the plaintiffs accused Shopify and TaskUs of their "failure to exercise reasonable care in securing and safeguarding" user data connected to the 2020 data breach that affected Ledger SAS crypto wallets. The complaint read that the breach resulted in the unauthorized public release of around 272,000 pieces of personal information such as name, email ID, postal address, and telephone numbers. The plaintiffs claimed that both Shopify and TaskUs were reportedly aware of the data leak for more than a week before notifying customers of the hack. Between April-June 2020, attackers exploited Ledger's database via Shopify and TaskUs and obtained the list of the former's customers' PII. By the end of June, the victims' data had been traded on the black market, which left them vulnerable to phishing attacks. Ledger, which is also being accountable for repeated promises and global advertising campaigns touting its security, had initially denied the breach. By December 2020, the extent of the exploit worsened when the hacker published Ledger's customer list online from Shopify. Apart from phishing attacks. the victims also faced threats of physical assault and blackmail if they failed to transfer their funds to the criminals. It was then, the plaintiffs alleged, that the French hardware wallet company sent some of its customers affected by the data breach an email informing them for the first time that their PII was leaked. The complaint also claimed that Ledger used Shopify to operate its website's online store, due to which the latter had direct access to the personal information of users on Ledger's database. Shopify uses TaskUs as a third-party contractor to provide customer support services and hence had access to the said customer data. California Court Dismisses 2020 Data Breach Lawsuit This isn't the first time that Ledger and Shopify have been sued for a data breach that alleged several Ledger users lost their crypto assets in phishing attacks after their personal data got leaked. However, the California court ruled in favor of Shopify and Ledger's motion to dismiss the lawsuit in November last year. Judge Edward Chen stated that the US-based court does not have jurisdiction over the two entities since they are headquartered in Canada and France. Earlier, another cryptocurrency wallet company, Trezor, confirmed that its users were targeted in MailChimp exploit. It was now investigating the email phishing campaign wherein the hackers sent fake notifications of data breaches after compromising a mailing list. [GN] SOCLEAN INC: Cason Sues Over Mislabeled Sanitizing Machine ---------------------------------------------------------- JAMES CASON, individually and on and all others similarly situated, Plaintiff v. SOCLEAN, INC., Defendant, Case No. 4:22-cv-00180-RM (D. Ariz., April 13, 2022) is an action against the Defendant's false and misleading representations about its devices to market CPAP Sanitizing Machine, the SoClean 2 Go CPAP Sanitizing machine, and their predecessor devices ("the SoClean devices"). The Plaintiff alleges in the complaint that SoClean's marketing materials fail to disclose that its devices emit ozone, which is a longstanding requirement of federal law. Instead, SoClean falsely represents that its devices use "activated oxygen" to clean CPAP machines. SoClean markets the devices as "safe" and "healthy," which is false given that they generate toxic ozone gas at levels that substantially exceed federal regulations. SoClean falsely represents that its devices use "no water or chemicals" or "no harsh chemicals" to clean CPAP machines, despite using ozone gas – a harsh chemical that causes respiratory problems in humans. SoClean devices are so dangerous and destructive that several of the largest manufacturers of CPAP machines in the U.S. require purchasers to acknowledge that they have been informed that if the purchaser uses a SoClean device to clean their CPAP machine, the warranty of their CPAP machine will be voided. The Plaintiff and the Class have suffered actual damages in that each product they purchased is worth less than the price they paid and which they would not have purchased at all had they known of the attendant health risks associated with the use of each of SoClean's products. SOCLEAN, INC. manufactures cleaning devices. The Company produces automated continuous positive airway pressure (CPAP) cleaners and sanitizers which improves health outcomes and quality of life for those suffering from obstructive sleep apnea and other sleeping disorders. SoClean serves customers in the State of Massachusetts. [BN] The Plaintiff is represented by: Gregory E. Good, Esq. GOOD LAW, P.C. 3430 E. Sunrise Drive, Suite 270 Tucson, AZ 85718 Telephone: (520) 628-8221 Facsimile: (520) 547-0394 Email: good@goodlaw.net - and - John M. Deakle, Esq. Russell L. Johnson, Esq. Ronald V. Johnson, Esq. Richard J. Lajaunie, Esq. DEAKLE-JOHNSON LAW FIRM, PLLC 802 N. Main Street Hattiesburg, MS 39403 Telephone: (601) 544-0631 Facsimile: (601) 544-0699 Email: jmd@deaklelawfirm.com rljohnson@djlawms.com rvjohnson@djlawms.com rjlajaunie@djlawms.com -and - Patrick W. Pendley, Esq. Andrea Barient, Esq. PENDLEY, BAUDIN & COFFIN 24110 Eden Street Plaquemine, LA 70765 Telephone: (888) 725-2477 Facsimile: (225) 687-6398 Email: pwpendley@pbclawfirm.com abarient@pbclawfirm.com SOLARWINDS CORP: Must Face Securities Class Action -------------------------------------------------- Shearman & Sterling LLP, in an article for Mondaq, reports that on March 30, 2022, Judge Robert Pitman of the Western District of Texas denied the majority of a motion to dismiss a putative class action asserting claims under the Securities Exchange Act of 1934 against an information technology company, certain of its executives, and private equity firms that owned the company's securities. In re SolarWinds Corp. Sec. Litig., No. 1:21-CV-138-RP (W.D. Tex. Mar. 30, 2022). Plaintiffs alleged that company statements regarding its cybersecurity policies and practices were revealed to be false and misleading upon the disclosure of a security breach. The Court held that plaintiffs adequately alleged falsity, scienter, and loss causation, except as to the company's CEO, the allegations as to whom the Court granted plaintiffs leave to replead. The Court held that plaintiffs adequately alleged that the company's CEO and Vice President of Security Architecture made misstatements based on the fact that they allegedly reviewed and approved a "security statement" on the company's website that was alleged to falsely describe the company's cybersecurity policies and practices. Slip Op. at 14-15, 21. Moreover, the Court determined that statements indicating that the company was focusing on cybersecurity "hygiene" could plausibly be found to be misleading in context based on "differences between the image projected by the speaker and the reality on the ground." Id. at 16. And the Court further held that the company's disclosures about the risk of cybersecurity attacks did not protect it because plaintiffs did not merely point to the fact that a security breach took place but, rather, "alleged separate facts that the cybersecurity measures at the company were not as they were portrayed." Id. at 17. The Court also held that plaintiffs' allegations as to the Vice President of Security Architecture supported a strong inference of scienter on his part because he had touted the company's security measures while holding himself out as a "responsible and knowledgeable authority regarding [the company's] cybersecurity measures." Id. at 10. Allegations that the Vice President had allowed a separate server vulnerability, unrelated to the breach at issue, also supported a finding of scienter, the Court held, and statements of former employees regarding the lack of proper cybersecurity protocols were also considered relevant, even though those employees had not directly worked on the company's security protocols or interfaced with its security team. Id. at 11-12. The Court noted that several challenged statements related to employee practices at the company broadly, and that a trier of fact could infer that the Vice President of Security Architecture "may have been aware" of whether the company's security policies were being followed. Id. at 12-13. With respect to the company's CEO, however, the Court agreed that plaintiffs failed to adequately allege scienter because plaintiffs had pled "no facts to suggest that [the CEO] held himself out as an authority on [the company's] cybersecurity measures." Id. at 22. Moreover, while plaintiffs pointed to the CEO's sale of more than 39% of his company shares shortly before the security breach was publicly disclosed as evidence of scienter, the Court determined that the CEO had provided a plausible competing inference—that he had previously announced his departure from the company and sold his shares pursuant to a 10b5-1 plan put in place before the company became aware of the security breach. Id. at 23. With respect to loss causation, defendants contended that stock price drops following disclosure of a security breach could not be tied to any specific practices of the company. Id. at 18-19. The Court held, however, that the alleged corrective disclosures "at the very least circumstantially suggest that the security breach was more likely than not caused by the company's allegedly deficient security." Id. at 19. The Court also held that plaintiffs adequately alleged control person liability against two private equity firms that each allegedly controlled 40% of the company. Id. at 25-26. The private equity firms argued that neither was a majority shareholder and their stakes should not be combined to infer majority control, but the Court determined that a "relaxed" and "lenient" pleading standard applied to evaluating control person allegations. Id. at 26. Plaintiffs had adequately alleged, the Court held, that the private equity firms "acted in unison, buying and taking the [c]ompany private together" and then "taking the [c]ompany public together again," "retaining equal amounts of shares of the [c]ompany," and then selling shares after the company's IPO "together, on the same day, and in nearly identical amounts." Id. In re SolarWinds Corp. Sec. Litig. [GN] SOTHEBY'S: Averts Independent Contractor Misclassification Suit --------------------------------------------------------------- Kathleen Dailey, writing for Bloomberg Law, reports that Sotheby's convinced a federal judge in New Jersey to throw out a proposed class action brought by an accountant who claims he and others were misclassified as independent contractors, rather than employees. Plaintiff Francis Fenwick failed to establish that the case is worth more than $75,000, that there's diversity of citizenship between the parties, or that his claims plausibly raise a federal question, Judge Brian R. Martinotti said on April 4. As such, the U.S. District Court for the District of New Jersey lacks jurisdiction over the case, he said. [GN] SPRINT CORP: N.Y. Court Pares Claims in Securities Class Action --------------------------------------------------------------- Shearman & Sterling LLP, in an article for Mondaq, reports that on March 25, 2022, Judge Mary Kay Vyskocil of the Southern District of New York granted in part and denied in part a motion to dismiss a putative class action asserting claims under the Securities Exchange Act of 1934 against a telecommunications company and certain of its executives. Solomon v. Sprint Corp., 1:19-cv-05272 (MKV) (S.D.N.Y. Mar. 25, 2022). Plaintiffs primarily alleged that the company made misrepresentations regarding its reporting of new phone subscriptions and its participation in a government-subsidized discounted phone program. The Court held that plaintiffs adequately alleged misrepresentations and scienter with respect to statements regarding new subscriptions but held that plaintiffs failed to adequately allege scienter with respect to statements regarding the discounted phone program and concluded that certain other challenged statements were mere puffery. Plaintiffs alleged two primary categories of misrepresentations. First, plaintiffs alleged that the company's reporting of the number of postpaid phone lines added by subscribers was misleading, including because the company had increased the number of subscriptions by offering customers a bundled free line with a purchased line. Slip op. at 2-4. Second, plaintiffs alleged that the company made misrepresentations regarding its participation in a government-subsidized program that provided discounted phone and internet services to low-income customers, which were allegedly false and misleading because the company failed to deactivate lines that were inactive for 30 days as required under the terms of the program. Id. at 5-6. Plaintiffs alleged that these statements were made in the context of a prospective merger to increase the likelihood that the merger would be consummated. Id. at 7. The Court held that plaintiffs had adequately alleged misrepresentations with respect to the company's reporting of added postpaid phone lines. The Court rejected the company's arguments that its statements were "technically true" and accompanied by other disclosures that explained that the company used promotions and included non-phone devices in its reporting of postpaid numbers. Id. at 13. The Court noted that, once a company chooses to speak on an issue, it must disclose sufficient information so that its statements are not misleading. Id. at 11. While the Court agreed that the statements were technically true, it explained that the additional disclosures "do not defeat the clear impression generated by the company's other statements about the strength of the business overall." Id. at 13. In particular, the Court noted that the company had "painted such an optimistic picture of the company's postpaid sales that it left investors with no other possible inference than that the company's postpaid net additions continued to grow," even as the company's board had allegedly been informed that the number of added lines had decreased, that the company's performance was worse than other phone carriers, and that growth was not expected to continue. Id. at 12-13. With respect to the company's participation in the discounted phone line program, the company admitted that its financial statements were incorrect because they "claimed income that they wrongly acquired" with respect to the program and because "internal controls in the company had failed to ensure compliance." Id. at 14. Similarly, the Court explained that alleged misrepresentations regarding financial performance and revenue were actionable because the company "did not disclose that a sizeable portion of its revenue was wrongfully received as a result of failures within [the company's] controls." Id. at 15. However, the Court held that challenged statements regarding the company's "corporate goals and competitive advantages" were non-actionable puffery. Id. at 15-16. The Court observed that the statements such as "whether we do the merge[r] . . . or stay standalone . . . we would have a terrific platform from a network point of view" were "forward-looking statements of optimism" that constituted mere puffery. Id. at 16. Thus, the Court dismissed any claims relying on those statements to the extent they are "devoid of any connection to the statements the Court has found to be actionable." Id. Turning to scienter, the Court explained that plaintiffs argued "almost exclusively" for an inference of scienter based on a theory of recklessness, pointing to an alleged "discrepancy between statements made internally at the company and statements released to the public." Id. at 17-18. The Court held that plaintiffs adequately alleged scienter with respect to the added postpaid subscriptions, based on allegations that the company "publicly discussed only [the company's] success from postpaid additions," even though the company's board was allegedly informed of a "drastic reduction[] in postpaid net additions" and the company subsequently stated in a letter to a regulator that this reporting was "incomplete" and "not a substitute for a realistic analysis of the key factors that are most probative of [the company's] overall competitive position and prospects." Id. at 18. The Court stated that these allegations raised a sufficient inference of scienter at the motion-to-dismiss stage that defendants "either knew of the statements' falsity or were reckless when making their statements." Id. at 18-19. The Court held that plaintiffs had not adequately alleged scienter, however, with respect to statements regarding the discounted phone program or related alleged inaccuracies in the company's financial statements. While plaintiffs argued that an email allegedly sent by a "senior lawyer" at the company explained that the company had a "systemic" failure with respect to keeping track of subscribers in the government program, the Court emphasized that plaintiffs provided no other facts indicating that individuals at the company were aware of problems with internal controls. Id. at 19. Moreover, the Court observed that plaintiffs had given no reason why that email, sent in 2014 to a utility commission in Oregon, should be interpreted as relating to a "nationwide problem" or to the allegedly improper reimbursements disclosed five years later. Id. at 19-20. The Court also rejected plaintiffs' argument that defendants had "motive and opportunity to commit fraud" based on an alleged "desire to maximize the merger price" and to "induce the merger to occur." Id. at 20. The Court explained that this argument amounted to a "generalized desire" to achieve a profitable outcome and was not supported by allegations of a "concrete and personal benefit" for the company's executives, as would be required to support an inference of scienter. Id. at 20-21. Solomon v. Sprint Corp. [GN] SPROUT FOODS: Faces Suit Over Nutrient Claims on Baby Food Pouches ------------------------------------------------------------------ Corrado Rizzi reports that Sprout Foods has been hit with a proposed class action that alleges the company has misbranded its baby and toddler food pouches by including on product labels nutrient content claims that are prohibited by the Food and Drug Administration (FDA). The 28-page suit states that FDA regulations strictly prohibit certain nutrient content claims on the product labels of foods intended for children under two. According to the lawsuit, Sprout's nutrient content claims, including, for instance, that its Power Pak pouches contain "3g of Protein, 5g of Fiber and 300mg Omega-3 from Chia ALA," mislead reasonable consumers into believing the products are healthier than others for children under two. "These claims deceive and mislead reasonable consumers into believing that the Products will provide more benefits than its competitors, and induces [sic] parents to purchase the Products despite a lack of evidence that an increased intake for the nutrients advertised are appropriate or recommended for infants and toddlers less than 2 years of age," the complaint contends. Further, under California law, a food that is "misbranded" cannot legally be manufactured, advertised, distributed, sold or possessed, the lawsuit states. "Misbranded products have no economic value and are legally worthless," the suit says. The case contends that consumers have been "economically damaged" by buying the Sprout pouches at issue, which, according to the lawsuit, are worth less than their purchase price due to the allegedly impermissible nutrient content claims. The suit looks to cover all persons in California who bought at any time since February 18, 2018 any Sprout baby or toddler food pouches included in the list found here. [GN] STARBUCKS CORP: Sued for Underfilling Cold Brew Concentrate ----------------------------------------------------------- Jessy Edwards, writing for Top Class Actions, reports that don't mess with a man's coffee. Starbucks is being sued by a coffee lover who alleges the multinational company underfills its Cold Brew Concentrate coffee products. Plaintiff Kenneth Telesco filed the class action complaint against Starbucks Corporation Apr. 1 in a New York federal court, alleging violations of state and federal consumer laws. "Starbucks engages in widespread false and deceptive advertising on its [Cold Brew Concentrate] Coffee Products," Telesco alleges. "In a practice that offends reasonable consumer expectations, Defendant employs a classic bait-and-switch scheme that causes unsuspecting consumers to spend more money for less than the advertised amount of coffee they believe they are purchasing." He says the packaging and labeling of the cold brews prominently advertise that they will produce a certain number of servings when, in fact, they do not. The lawsuit alleges that, according to the FDA's Code of Regulations for coffee, one serving is equivalent to 12 fluid ounces. Telesco purchased a Cold Brew Concentrate, which he says prominently advertises on its front labels that one bottle "Makes 8 Servings When Prepared As Directed." "But according to both the CFR and Starbucks's own measurements, the Coffee Products only produce 5 servings of coffee per 32 ounce bottle," Telesco says. This is because, to get the eight servings promised, Starbucks uses inconsistent serving sizes, Telesco says. Per the instructions located on the side of the bottle, one serving of Starbucks Cold Brew Coffee consists of 4 fluid ounces of the Coffee Products and 4 fluid ounces of water -- for a total serving size of 8 fluid ounces, he says. "But . . . 8 fluid ounces is not one serving of coffee, it is two-thirds of a single serving," Telesco alleges. The class action lawsuit says customers were deceived by false marketing into buying a product that was not worth as much as it represented. Telesco is looking to represent anyone who bought the cold brew product in the United States plus a New York subclass. He's suing for breach of warranty and under New York consumer laws and seeking certification of the class action, an injunction, fees, costs, interests, damages and a jury trial. Meanwhile, a major recall has been issued for cases of popular Starbucks beverages sold in stores nationwide. On Sept. 26, 2021, the FDA initiated a nationwide recall for more than 250,000 cases of Starbucks Doubleshot Espresso drinks in three flavors. The plaintiffs are represented by Frederick J. Klorczyk III, L. Timothy Fisher and Brittany S. Scott of Bursoe & Fisher, P.A. The Starbucks Underfilled Cold Brew Class Action Lawsuit is Kenneth Telesco v. Starbucks Corporation, Case No. 7:22-cv-02687, in the U.S. District Court for the Southern District of New York. [GN] STATE FARM: Cozen O'Connor Attorneys Discuss Court Ruling --------------------------------------------------------- Michael J. Miller, Esq., Laura Zulick, Esq., and Ilya Schwartzburg, Esq., of Cozen O'Connor, in an article for Mondaq, report that on August 30, 2021, the California Supreme Court held in McHugh v. Protective Life Insurance Company, 12 Cal. 5th 213, 243, 494 P.3d 24, 43 (2021), that California Insurance Code sections 10113.71 and 10113.72 - which extended grace periods in life insurance policies to 60 days and mandated annual notice of the new right for policyholders to designate a person to receive notice of lapse or termination of the policy for failure to pay premiums - apply not only to policies issued or delivered after the effective date of those statutes, January 1, 2013, but also to policies already in force on that date. Based on McHugh, on October 6, 2021, the Ninth Circuit decided Thomas v. State Farm Life Insurance Company, No. 20-55231, 2021 WL 4596286 (9th Cir. Oct. 6, 2021)(unpub.), holding that "[a]n insurer's failure to comply with these statutory requirements means that the policy cannot lapse" and an insurer could be liable for a death benefit. Shortly thereafter, on October 25, 2021, the California Department of Insurance issued guidance acknowledging McHugh, but deferred to "future court decisions" on how to apply it. By our count, there are now over 50 cases pending against life insurers in California state and federal courts based on alleged violations of Sections 10113.71 and 10113.72. Although many cases were stayed pending McHugh and Thomas, those cases are now active again, and new cases are being filed regularly. Typically in these cases, plaintiffs assert claims for death benefit proceeds, claims for damages, and claims for reinstatement, and plaintiffs bring the cases individually or as proposed class actions. Below, we discuss three recent opinions that provide insight into how these cases are progressing post-McHugh. There has been one significant decision denying class action certification. In Siino v. Foresters Life Ins. & Annuity Co., 340 F.R.D. 157 (N.D. Cal. 2022), the named plaintiff claimed that a $100,000 policy was improperly terminated by the defendant insurer. The court found "commonality" satisfied despite the insurer's claim that "class members will still need to prove their own performance, the materiality of the insurer's breach, and actual harm or damage." However, the court agreed with the insurer that the class failed the "predominance" test because the plaintiff could not produce a cognizable class-wide damages model for all but two death benefit claims. The plaintiff has since dropped her damages claims and intends to file a renewed motion for class certification based primarily on declaratory relief. Relatedly, one of the oldest of these class action cases alleging statutory violations, Bentley v. United Omaha Life Insurance Co., No. 2:15-cv-07870 (C.D. Cal.), is nearing a final settlement following the insurer's unsuccessful appeal. The settlement will consist of an insurer payment to plaintiffs of approximately $2.5 million, representing death benefits and interest on 26 policies. The case had always limited the class to beneficiaries with death benefit claims. Siino shows that future class action practice will focus on substantive defenses and damages theories. These questions will likely not be as quickly resolved outside the death benefit context as they were in Bentley. In Kelley v. Colonial Penn Life Ins. Co., No. 220CV03348FLAEX, 2022 WL 341135 (C.D. Cal. Jan. 3, 2022), the court denied a post-McHugh motion to dismiss. The plaintiff in Kelley claimed her policy improperly lapsed and should be reinstated, and alleged claims for declaratory judgment, breach of contract, and various California statutory causes of action individually and on behalf of and a proposed class. The court was not swayed by the insurer's arguments that California law did not apply, that the plaintiff's policy was not an individual policy under California law, or that certain causes of action (such as breach of contract, unfair competition, and financial elder abuse) would fail as a matter of law. The insurer has now filed an answer, and the case is proceeding to discovery. It remains to be seen whether and how far defendant insurers will be able to push individual defenses, especially at the motion to dismiss stage. Finally, a case filed in 2017 illustrates some of the issues that can come up in discovery in long-pending California lapse cases. In Moriarty v. Am. Gen. Life Ins. Co., No. 17-CV-1709-BTM-WVG, 2021 WL 6197289 (S.D. Cal. Dec. 31, 2021), discovery had closed before the case was stayed for McHugh. In the discovery dispute before the court, the plaintiff sought (1) new information and data to update the insurer's "stale" production from three years prior, (2) new discovery to explore the defendant's compliance with McHugh, and (3) disclosure of an attorney memorandum that the defendant relied on in attempting to comply with Sections 10113.71 and 10113.72. The court found no grounds to reopen discovery either based on the plaintiff's showings or McHugh and Thomas. The court also denied disclosure of the attorney memorandum, finding that the defendant insurer had not divulged enough detail to cause a waiver of privilege. Defendant insurers emerging from stays can rely on Moriarty to challenge plaintiffs' attempts at new discovery based on whether they adequately preserved these avenues or whether certain discovery topics were foreseeable before the stay. There are dozens of other post-McHugh lapse cases in California federal and state courts. Most notably, we are starting to see several new plaintiff law firms filing complaints alongside major players who continue to file new cases as well. These developments may change depending on how the California Court of Appeal, Fourth District, rules on remand in McHugh on whether plaintiffs must demonstrate that violations caused harm in each individual case. We are continuing to monitor and report on these post-McHugh cases. [GN] STRONGHOLD DIGITAL: Bragar Eagel Investigates Potential Claims -------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, is investigating potential claims against Stronghold Digital Mining, Inc. (NASDAQ: SDIG), CIRCOR International, Inc. (NYSE: CIR), Barclays PLC (NYSE: BCS), and NeoGenomics, Inc. (NASDAQ: NEO). Our investigations concern whether these companies have violated the federal securities laws and/or engaged in other unlawful business practices. Additional information about each case can be found at the link provided. Stronghold Digital Mining, Inc. (NASDAQ: SDIG) In October 2021, Stronghold conducted its initial public offering ("IPO"), selling 6.88 million shares of Class A common stock for $19.00 per share. On March 29, 2022, after the market closed, Stronghold announced its fourth quarter and full year 2021 financial results. The Company reported a net loss of $0.52 for the quarter, below analyst estimates of $0.04 earnings per share, and Stronghold's Chief Executive Officer cited "significant headwinds in our operations which have materially impacted recent financial performance." On this news, the price of Stronghold shares declined by $3.28 per share, or approximately 32%, from $10.25 per share to close at $6.97 per share on March 30, 2022. For more information on the Stronghold investigation go to: https://bespc.com/cases/SDIG CIRCOR International, Inc. (NYSE: CIR) On March 14, 2022, CIRCOR disclosed that it may restate financial results dating to 2018 due to accounting irregularities related to its pipeline engineering unit. The Company stated that the irregularities appear to be "in the range of $35 to $45 million of pre-tax income on a cumulative basis over a period of at least five years." On this news, the Company's stock fell as much as 2.4% during after-hours trading on March 14, 2022. For more information on the CIRCOR investigation go to: https://bespc.com/cases/CIR Barclays PLC (NYSE: BCS) On March 28, 2022, Barclays disclosed that it had sold $15.2 billion more structured notes and exchange-traded notes than it had registered. Barclays would repurchase the affected securities at their original price, resulting in approximately $592 million in losses. On this news, Barclays' share fell $0.96, or 10.6%, to close at $8.09 per share on March 28, 2022, thereby injuring investors. For more information on the Barclays investigation go to: https://bespc.com/cases/BCS NeoGenomics, Inc. (NASDAQ: NEO) NeoGenomics specializes in cancer genetics testing and information services and aims to provide comprehensive oncology-focused testing menus in the world for physicians to help them diagnose and treat cancer. On Monday, March 28, 2022, NeoGenomics' Chief Executive Mark Mallon stepped down as the health-testing company revealed that first-quarter financials will miss guidance and rescinded its forecast for the full year. On this news, the price of NeoGenomics shares declined by $5.30 per share, or approximately 29.8%, from $17.79 per share to close at $12.49 per share on March 29, 2022. For more information on the NeoGenomics investigation go to: https://bespc.com/cases/NEO About Bragar Eagel & Squire, P.C.: Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. Contact Information: Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Alexandra B. Raymond, Esq. (212) 355-4648 investigations@bespc.comwww.bespc.com [GN] TACTILE SYSTEMS: Johnson Fistel Investigates Potential Claims ------------------------------------------------------------- Johnson Fistel, LLP is investigating potential claims on behalf of Tactile Systems Technology, Inc. ("Tactile" or "the Company") (NASDAQ: TCMD) against certain of its officers and directors. In 2020 a class action complaint was filed against Tactile. The complaint, alleges that the defendants violated the securities laws by misrepresenting and concealing that: (1) while Tactile publicly touted a $4 plus billion or $5 plus billion market opportunity, in truth, the total addressable market for Tactile's medical devices was materially smaller; (2) to induce sales growth and share gains, Tactile and/or its employees were engaged in illicit and illegal sales and marketing activities in violation of applicable federal and state rules and public payer regulations; (3) the foregoing illicit and illegal sales and marketing activities increased the risk of a Medicare audit of Tactile's claims and criminal and civil liability; (4) Tactile's revenues were in part the product of unlawful conduct and thus unsustainable; and that as a result of the foregoing, (5) defendants' public statements, including its year-over-year revenue growth and the purported growth drivers, were materially false and misleading at all relevant times. Judge Nancy E. Brasel granted in part and denied in part the defendants' motion to dismiss a shareholder class action lawsuit pending in the United States District Court for the District of Minnesota against Tactile and certain of its officers. If you are a current, long-term shareholder of Tactile holding shares before May 7, 2018, you may have standing to hold Tactile harmless from the alleged harm caused by the Company's officers and directors by making them personally responsible. You may also be able to assist in reforming the Company's corporate governance to prevent future wrongdoing. If you are interested in learning more about the investigation, please contact lead analyst Jim Baker (jimb@johnsonfistel.com) at 619-814-4471. If emailing, please include a phone number. Additionally, if you have continuously owned Tactile shares since May 7, 2018, you can click or copy and paste the link below in a browser to join this action: https://www.cognitoforms.com/JohnsonFistel/TactileSystemsTechnologyInc About Johnson Fistel, LLP: Johnson Fistel, LLP is a nationally recognized shareholder rights law firm with offices in California, New York and Georgia. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. Johnson Fistel seeks to recover losses incurred due to violations of federal securities laws. For more information about the firm and its attorneys, please visit http://www.johnsonfistel.com.Attorney advertising. Past results do not guarantee future outcomes. Contact: Johnson Fistel, LLP Jim Baker, 619-814-4471 jimb@johnsonfistel.com [GN] TAILORED BRANDS: Faces Lopez Class Suit Over Untimely Paid Wages ---------------------------------------------------------------- MICHAEL LOPEZ, individually and on behalf of all others similarly situated v. TAILORED BRANDS, INC., Case No. 2:22-cv-02073 (E.D.N.Y., April 11, 2022) is a class action on behalf of all of Tailored Brands' employees in the State of New York that engage in manual work in the course of their employment. New York Law requires companies to pay their manual workers on a weekly basis unless they receive an express authorization to pay on a semi-monthly basis from the New York State Department of Labor Commissioner. The Defendant has received no such authorization from the New York State Department of Labor Commissioner. The New York Court Of Appeals has explained that this law is "intended for the protection of those who are dependent upon their wages for sustenance." The Defendant has allegedly violated this law by paying its manual workers every other week rather than on a weekly basis. The Plaintiff therefore demands liquidated damages, interest, and attorneys' fees on behalf of himself and a putative class comprised of all manual workers employed by the Defendant in New York State over the last six years. The Plaintiff was employed by Defendant from Summer 2016 to January 2018 at Men’s Warehouse stores located in Bayshore and Massapequa, New York. At least 25% of Plaintiff's job responsibilities at Men's Warehouse included manual labor, including tasks such as stocking shelves and organizing merchandise, measuring customers for suits, and assisting customers on the sales floor. The Plaintiff was paid every other week, rather than weekly, during the entirety of his employment with Defendant. Thus, for half of each biweekly pay period, Plaintiff was injured in that he was temporarily deprived of money owed to him, and he could not invest, earn interest on, or otherwise use these monies that were rightfully his. Accordingly, every day that said money was not paid to him in a timely fashion, he lost the time value of that money. Due to Defendant's alleged violations of the New York Labor Law (NYLL), Plaintiff and the Class are entitled to recover from Defendant the amount of their untimely paid wages as liquidated damages, reasonable attorneys’ fees and costs, and pre-judgment and post-judgment interest as provided for by NYLL section 198.[BN] The Plaintiff is represented by: Yitzchak Kopel, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: ykopel@bursor.com aleslie@bursor.com TAKEDA PHARMACEUTICALS: Claims in Value Drug Suit Dismissed in Part ------------------------------------------------------------------- In the case, VALUE DRUG COMPANY v. TAKEDA PHARMACEUTICALS, U.S.A., INC., et al., Civil Action No. 21-3500 (E.D. Pa.), Judge Mark A. Kearney of the U.S. District Court for the Eastern District of Pennsylvania issued a Memorandum: a. granting in part and denying in part Defendant Takeda's Motion to Dismiss; b. granting in part and denying in part Defendants Watson and Amneal's joint Motion to Dismiss; c. granting Defendants Teva Ltd. and Teva Pharmaceuticals USA, Inc.'s request to join Defendants' Watson and Amneal's Motion to Dismiss; and d. granting in part and denying in part Defendant Par's Motion to Dismiss. I. Background Takeda obtained Food and Drug Administration approval for Colcrys -- a tablet of colchicine -- to treat Familial Mediterranean Fever and prevent gout in July 2009. This approval caused the 21 existing sellers of colchicine treatments to exit the market leading to prices for colchicine to increase dramatically. Generic drug manufacturers Par, Amneal, and Watson -- in this order -- filed Abbreviated New Drug Applications with the Food and Drug Administration seeking approval for their generic versions of Colcrys, certifying Takeda's patents covering Colcrys are either invalid or not infringed by their generics. Takeda sued each of the three Generics for patent infringement in the District of Delaware. Judge Robinson coordinated the cases and set a joint bench trial for Takeda's lawsuits against the three Generics (Par, Watson, and Amneal) to begin in December 2015. Takeda settled with the three Generics on the eve of trial, giving rise to Value Drug's antitrust claims now before the Court. Value Drug is a pharmaceutical wholesaler who purchases Colcrys and generic Colcrys for resale. It claims Takeda conspired to order market entry and restrict output through, among other things, separate settlement agreements with each Generic. It alleges these three settlement agreements are part of a larger antitrust conspiracy to order market entry and restrict output of Colcrys or, in the alternative, separate bilateral conspiracies between Takeda and each Generic to achieve the same result. Value Drug alleges Takeda and the Generics conspired to restrict output by ordering the market entry of generic Colcrys products to share the supracompetitive profits for an extended period of time. Takeda and the Generics allegedly did so by staggering the Generics' entry and conspiring to hold off the "third wave" of Generics consisting of generic drug manufacturers who had not yet filed ANDA applications from entering the market for as long as possible to prevent the incremental price collapse which occurs with each generic entrant. II. Analysis A. Value Drug pleads circumstantial evidence of a plausible, single horizontal conspiracy among Takeda and the Generics. Judge Kearney again must determine whether Value Drug pleads a single horizontal overarching conspiracy among Takeda, Par, Watson, and Amneal. He concludes he does so on a second try. Value Drug may plead the conspiracy with direct or circumstantial evidence or a combination of both. It alleges the direct evidence of the conspiracy includes the settlement agreements themselves and statements in other litigation. The Court found the direct evidence arguments unavailing when we dismissed the Complaint three months ago. Judge Kearney finds the same again as to direct evidence for the reasons he described in his extensive Memorandum. While Value Drug still does not plead direct evidence, it now pleads enough facts of circumstantial evidence to plausibly allege an overarching conspiracy. Considering these pleaded facts together and drawing all reasonable inferences in favor of Value Drug, Judge Kearney finds that Value Drug pleads a plausible single horizontal conspiracy among Takeda, Watson, Par, and Amneal by pleading consciously parallel conduct, a plausible motive for each conspirator, the conspirators acted against their unilateral interests, and additional pleaded facts supporting an inference of conspiracy, all of which together tend to rule out the possibility of independent action. B. Value Drug does not plead plausible separate bilateral conspiracy theories to restrict output. While he prefers to avoid opining in the negative, Value Drug's unique arguments on its bilateral conspiracy theory require Judge Kearney defers to what Value Drug argues the case is not. Value Drug concedes it does not plead a large and unjustified reverse payment. It argues because this is not a "pay-for-delay" scheme, it need not meet the Supreme Court's tests in FTC v. Actavis to state a claim. It expressly repeatedly disclaimed it seeks to proceed under this theory of antitrust liability. And it tells the Court it does not seek to challenge the "acceleration clause" provisions themselves as violative of the Sherman Act. Judge Kearney begins with two maxims: Patent-related settlement agreements can sometimes violate antitrust laws, and in reviewing a case like this, the Court must balance "the lawful restraint on trade of the patent monopoly and the illegal restraint prohibited broadly by the Sherman Act"; and, reduced output is an anticompetitive effect sufficient to plead an unreasonable restraint on a motion to dismiss. But both sides' arguments have some merit in the case. After some time considering this interesting issue, Judge Kearney realized he need not today decide it because Value Drug's bilateral conspiracy theory is implausible. The object of the conspiracy could not be achieved without all three Generics' active and knowing participation belying a theory Takeda conspired separately with each Generic. The very facts which make Value Drug's overarching conspiracy theory plausible make the separate bilateral theory implausible. Most importantly, and as shown in part by the acceleration clauses in the license agreements, the success of the horizontal, temporal "market allocation" conspiracy required Par's, Watson's, and Amneal's participation and buy-in, lending support to Value Drug's overarching conspiracy claim. But the fact the conspiracy would not work absent all three Generic ANDA filers' participation belies the plausibility each Generic conspired itself with Takeda. Judge Kearney dismisses as implausible Value Drug's claims alleging Takeda conspired with each Par, Watson, and Amneal individually to order the market and restrict output. C. Value Drug plausibly pleads antitrust injury. Par moves to dismiss arguing Value Drug fails to plead antitrust injury. It does not challenge Value Drug's allegation of an "injury of the type antitrust laws were intended to prevent"; rather, Par challenges the injury "flows from that which makes the Defendants' acts unlawful" because it did not have final approval to launch its generic drug in 2016 when Takeda's exclusivity expired. Value Drug sufficiently pleads antitrust injury at this stage, Judge Kearney holds. Value Drug alleges the intricacies of the Hatch-Waxman Act's statutory scheme under which generic drug manufacturers obtain tentative and final approval to market their generics. In addition, Par and Watson obtained tentative approval in February 2015 and October 2015, respectfully -- suggesting they met the "technical and substantive requirements" for final approval before Takeda's exclusivity ended. In other words, Par and Watson needed to take an affirmative step to obtain final approval after meeting the substantive and technical requirements to obtain it. Judge Jearney can reasonably infer from the pleaded facts they did not take the action at the earliest date possible given Value Drug's pleading of the estimated time it takes for the Food and Drug Administration to grant final approval and the fact neither received it until years after Takeda's exclusivity ended. It is reasonable to infer Par and Watson's own conduct caused the delay in final approval; thus, the chain of causation is not broken in the case. III. Order Judge Kearney granted Defendant Takeda's Motion without prejudice as to the Plaintiff's claims of separate bilateral conspiracies (Counts II, III, IV) and denied as to the claims for an overarching conspiracy to restrain trade, monopolization, conspiracy to monopolize, and (Counts I, V, VI). Judge Kearney granted Defendants Watson and Amneal's Motion without prejudice as to the claims for separate bilateral conspiracies with Takeda (Counts III, IV), and denied as to the single overarching conspiracy to restrain trade (Count I) and conspiracy to monopolize (Count VI). Judge Kearney granted Defendants Teva's request to join Defendants Watson and Amneal's Motion to Dismiss, and dismissed the separate bilateral conspiracy claim (Count III) without prejudice against the Teva Defendants. Defendant Par's Motion is granted without prejudice as to the claim for a separate bilateral conspiracy with Takeda (Count II) allowing Par to join the co-Defendants' arguments and denied as to the single overarching conspiracy to restrain trade (Count I) and conspiracy to monopolize (Count VI). Judge Kearney directed the Defendants to answer the remaining allegations and claims in the first amended class action Complaint on April 13, 2022. A full-text copy of the Court's March 30, 2022 Order-Memorandum is available at https://tinyurl.com/557yc6kk from Leagle.com. TASKUS INC: Bragar Eagel & Squire Reminds of April 25 Deadline -------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, reminds investors that class actions have been commenced on behalf of stockholders of GWG Holdings, Inc. (NASDAQ: GWGH), TaskUs, Inc. (NASDAQ: TASK), Gatos Silver, Inc. (NYSE: GATO), and MP Materials Corp. (NYSE: MP). Stockholders have until the deadlines below to petition the court to serve as lead plaintiff. Additional information about each case can be found at the link provided. GWG Holdings, Inc. (NASDAQ: GWGH) Class Period: June 3, 2020 Bond Offering Lead Plaintiff Deadline: April 19, 2022 On January 18, 2022, GWG disclosed that its Annual Report will likely be filed "later than the March 31, 2022 due date" because of "the recently disclosed decision of its independent registered public accounting firm to decline to stand for reappointment." The Company further disclosed that it "did not make the January 15, 2022 interest payment of approximately $10.35 million and principal payments of approximately $3.25 million with respect to its L Bonds" product and that it elected to "voluntarily suspend its L Bonds sales effective as of January 10, 2022." On this news, GWG's stock price fell $2.17 per share, or 27.7%, to close at $5.65 per share on January 18, 2022. Then, on January 27, 2022, The Wall Street Journal reported that GWG received a subpoena from the Securities and Exchange Commission requesting documents. The article also stated that an attorney representing multiple L Bonds investors said his clients are retail investors who bought the bonds after hearing the products were safe and would offer a comfortable income stream for their retirement, but that "they were shocked to learn that their money was used to pay old investors while the company has been under SEC investigation." Following this news, GWG's stock dropped over 20% during intraday trading on January 27, 2022. For more information on the GWG class action go to: https://bespc.com/cases/GWGH TaskUs, Inc. (NASDAQ: TASK) Class Period: June 11, 2021 - January 19, 2022 Lead Plaintiff Deadline: April 25, 2022 The complaint alleges that throughout the Class Period, Defendants claimed that TaskUs had "industry-leading growth and profitability" and a "simply massive" market opportunity. The complaint further alleges that Defendants touted the size of the Company's workforce and "low employee attrition levels" which "leads to lower hiring and training costs." These statements were materially false and misleading. On January 20, 2022, Spruce Point Capital Management, LLC ("Spruce Point") issued a report titled "Moderating the Bull Case Content" based on its "forensic financial and accounting review" of TaskUs. Spruce Point found that TaskUs, "has a pattern of exaggerated and inflated business claims, including revenue, and is covering-up financial strain with reduced disclosures, cherry-picked market data, and non-standard key performance metrics." Additionally, Spruce Point stated, "we find evidence of increasing strain in the relationship" between TaskUs and its largest customer Facebook "and believe margins and cash flow are set to contract more than expected." Spruce Point also stated, "we find a pattern of [TaskUs] embellishing the size of its workforce and making overly optimistic revenue growth claims." This disclosure caused the value of TaskUs stock to decline dramatically, resulting in significant harm to investors. For more information on the TaskUs class action go to: https://bespc.com/cases/TASK Gatos Silver, Inc. (NYSE: GATO) Class Period: October 28, 2020 IPO; October 28, 2020 - January 25, 2022 Lead Plaintiff Deadline: April 25, 2022 The litigation focuses on Gatos' statements concerning its Cerro Los Gatos ("CLG") mine located in Chihuahua, Mexico, including the Company's estimates in its July 1, 2020 Technical Report ("2020 Technical Report") that the CLG deposit "contains approximately 9.6 million diluted tonnes of proven and probable mineral reserves." According to the complaint, defendants made materially false and misleading statements and failed to disclose material adverse facts, including: (1) that the 2020 Technical Report contained errors; and (2) that, among other things, the GLG mineral reserves had been overestimated by as much as 50%. The truth came to light on Jan. 25, 2022, when Gatos disclosed that during a resource and reserve update process, which included a detailed reconciliation of recent production performance, the Company concluded that there were errors in the 2020 Technical Report, as well as indications that there is an overestimation in the existing resource model. As a result, the Company estimated a potential reduction of the metal content of CLG mineral reserve ranging from 30% to 50% of the metal content and warned that the mineral resource and reserve estimates in the 2020 Technical Report should not be relied upon. This revelation drove the price of Gatos shares as much as 70% lower on January 26, 2022. For more information on the Gatos class action go to: https://bespc.com/cases/GATO MP Materials Corp. (NYSE: MP) Class Period: May 1, 2020 - February 2, 2022 Lead Plaintiff Deadline: April 25, 2022 A class action has commenced on behalf of certain shareholders in MP Materials Corp f/k/a Fortress Value Acquisition Corp. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (i) Fortress Value Acquisition Corp. ("FVAC") had overstated its due diligence efforts and expertise with respect to identifying target companies to acquire; (ii) FVAC performed inadequate due diligence into Legacy MP Materials prior to the business combination, or else ignored significant red flags regarding, inter alia, Legacy MP Materials' management, compliance policies, and Mountain Pass's profitability; (iii) as a result, the Company's future business and financial prospects post-business combination were overstated; (iv) MP Materials engaged in an abusive transfer price manipulation scheme with a related party in the People's Republic of China to artificially inflate the Company's profits; (v) MP Materials' ore at the Mountain Pass Rare Earth Mine and Processing Facility was not economically viable to harvest for rare earth metals; and (vi) as a result, the Company's public statements were materially false and misleading at all relevant times. For more information on the MP Materials class action go to: https://bespc.com/cases/MP About Bragar Eagel & Squire, P.C.: Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. Contact Information: Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Alexandra B. Raymond, Esq. (212) 355-4648 investigations@bespc.comwww.bespc.com [GN] TASKUS INC: Levi & Korsinsky Reminds of April 25 Deadline --------------------------------------------------------- Levi & Korsinsky, LLP notifies investors in Taskus, Inc. ("Taskus" or the "Company") (NASDAQ: TASK) of a class action securities lawsuit. The lawsuit on behalf of Taskus investors has been commenced in the United States District Court for the Southern District of New York. Affected investors purchased or otherwise acquired certain Taskus securities between June 11, 2021 and January 19, 2022. Follow the link below to get more information and be contacted by a member of our team: https://www.zlk.com/pslra-1/taskus-inc-loss-submission-form?prid=25811&wire=5 or contact Joseph E. Levi, Esq. either via email at jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is no cost or obligation to you. Taskus, Inc. NEWS - TASK NEWS CASE DETAILS: The filed complaint alleges that defendants made false statements and/or concealed that: (1) TaskUs was experiencing severe financial strain and business challenges, particularly with its most important customer, Facebook; (2) the Content Security market was smaller than defendants represented and defendants' representations were based on outdated market data; (3) TaskUs improperly recognized revenue from certain key contracts; (4) defendants overstated the size of TaskUs' workforce as well as employee retention rates, and understated attrition rates; and (5) as a result of the foregoing, defendants' positive statements about the Company's business, operations, and prospects were materially false and misleading and/or lacked a reasonable basis. WHAT THIS MEANS TO SHAREHOLDERS: If you suffered a loss in Taskus during the relevant timeframe, you have until April 25, 2022 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. NO COST TO YOU: If you are a class member, you may be entitled to compensation without payment of any out-of-pocket costs or fees. Discuss your rights with our legal team without cost or obligation. PROTECT YOUR FINANCIAL INTERESTS: Complete this brief submission form https://www.zlk.com/pslra-1/taskus-inc-loss-submission-form?prid=25811&wire=5 or call 212-363-7500 to discuss the case. WHY LEVI & KORSINSKY: Over the past 20 years, the team at Levi & Korsinsky has secured hundreds of millions of dollars for aggrieved shareholders and built a track record of winning high-stakes cases. Our firm has extensive expertise representing investors in complex securities litigation and a team of over 70 employees to serve our clients. For seven years in a row, Levi & Korsinsky has ranked in ISS Securities Class Action Services' Top 50 Report as one of the top securities litigation firms in the United States. CONTACT: Levi & Korsinsky, LLP Joseph E. Levi, Esq. Ed Korsinsky, Esq. 55 Broadway, 10th Floor New York, NY 10006 jlevi@levikorsinsky.com Tel: (212) 363-7500 Fax: (212) 363-7171 www.zlk.com [GN] TEVA PHARMACEUTICAL: Judge Denies Motion to Dismiss Class Action ---------------------------------------------------------------- Shearman & Sterling LLP, in an article for Lexology, reports that on March 25, 2022, the United States District Court for the Eastern District of Pennsylvania largely denied a motion to dismiss a putative class action asserting claims under the Securities Exchange Act of 1934 against a pharmaceutical company and certain of its executives. Halman Aldubi Provident & Pension Funds Ltd. v. Teva Pharm. Indus. Ltd., No. 20-cv-4660-KSM (E.D. Pa. Mar. 25, 2022). Plaintiff alleged that the company made misrepresentations with respect to the reasons one of its drugs was commercially successful. The Court held that except for allegations against the company's CFO, plaintiff adequately alleged misrepresentations, scienter, and loss causation. Plaintiff alleged that the company donated more than a hundred million dollars to patient assistance programs as part of an alleged scheme through which those programs would use the funds to pay patients' co-pays for the company's drug, in violation of an anti-kickback statute. Slip op. at 2-4. Plaintiff further alleged that the company made various statements regarding the drug's success which were rendered false or misleading because they did not mention the alleged scheme. Id. at 5-9. Plaintiff further alleged that the company continued to make such misrepresentations even after it disclosed having received a subpoena from the Department of Justice ("DOJ") concerning the company's charitable donations, which ultimately led to the DOJ filing a complaint alleging that the company's practices violated the False Claims Act. Id. at 9‑12. The Court first assessed alleged misstatements regarding the drug's market share. While the company argued that it had no obligation to disclose illegal activity, the Court observed that the company contended that the donations were, in fact, legal. The Court, in any event, determined that whether the donations were legal was "largely immaterial" because plaintiff sufficiently alleged that, whereas the company "attributed [the drug's] success to legitimate business factors, such as the quality of the product and physician and patient loyalty," the "driving reason for this success" was actually the alleged scheme. Id. at 20-21. Further, the Court determined that while the company's statements "expressing optimism about [the drug's] market share and revenue forecasts would ordinarily constitute nothing more than puffery," they were actionable because they were made "in the context of" other statements ascribing reasons to the drug's success. Id. at 21. Similarly, the Court noted that while statements of opinion are "generally not actionable," they were actionable in this context because plaintiff alleged that "the speakers omitted material facts supporting their understanding of [the drug's] success." Id. at 22. For similar reasons, the Court held that the challenged statements concerning the company's program that facilitated patient access to the company's drugs were adequately alleged to be false or misleading because they placed at issue the true reasons for the program and the drug's success without disclosing the alleged scheme. Id. at 23-24. However, the Court held that the company's statements regarding compliance with applicable laws and regulations were not actionable because they did not put the source of the drug's success at issue and the Court noted that there was "no duty to disclose uncharged, unadjudicated wrongdoing." Id. at 24–25. In addition, the Court dismissed plaintiff's claims against the company's CFO, as the Court noted that he was not alleged to have made any of the challenged misstatements that put the drug's success at issue. Id. at 25 n.7. The Court next evaluated whether the challenged statements were made with scienter. The Court first determined that the drug was one of the company's "'core operations,' supporting an inference of scienter," because the drug allegedly made up a large share of the company's overall revenue and the company "repeatedly underscored the drug's importance to the company." Id. at 27. However, the company noted that the "core operations" theory of scienter "does not establish a strong inference of scienter" without additional allegations regarding "specific information conveyed to management." Id. at 28. Thus, the Court turned to individual defendants and observed that, for example, certain executives held themselves out as an expert on the drug, regularly spoke about the drug with confidence, and/or approved the challenged donations, which strongly suggested that they were aware of the alleged scheme, which the Court emphasized involved "incredibly large" donations that were labeled with the drug's name and made at the direction of the team responsible for marketing the drug. Id. at 28–35. Because the Court found that scienter had been adequately pleaded as to the individual defendants, the Court imputed their scienter to the company. Id. at 35. The Court also held that plaintiff adequately alleged loss causation by identifying a corrective disclosure -- namely, the stock price decline after the alleged truth was revealed. Id. at 36. Specifically, the Court held that the filing of the DOJ's complaint was sufficiently alleged to be a corrective disclosure because the company's stock fell after it was filed and it plausibly revealed the truth of the alleged misrepresentations, even though the DOJ's complaint contained allegations rather than proven facts. Id. at 39. However, the Court determined that the disclosure of the DOJ subpoena was not a corrective disclosure because the company's stock price did not fall when the subpoena was disclosed and the company's revision of its earnings forecasts was not a corrective disclosure because it did not "specifically relate to—or correct—the alleged misrepresentations." Id. at 37. [GN] TINDER INC: Final Approval of Kim Suit Settlement Appealed ----------------------------------------------------------- Objectors RICH ALLISON and STEVE FRYE appeal from a court ruling granting final approval of a settlement in the case entitled LISA KIM, individually on behalf of herself and all others similarly situated, Plaintiff v. TINDER, INC., a Delaware corporation; MATCH GROUP, LLC, a Delaware limited liability company; MATCH GROUP, INC., a Delaware corporation, Defendants, Case No. 2-18-cv-03093-JFW-AS, in the U.S. District Court for the Central District of California, Los Angeles. The lawsuit arises out of Tinder's misleading and illegal business practices, specifically the age discrimination in its pricing plans in violation of the Unruh Civil Rights Act. As reported in the Class Action Reporter on March 21, 2022, Judge John F. Walter of the U.S. District Court for the Central District of California, Western Division, entered a Judgment in the case. On Oct. 4, 2021, Plaintiff Kim sought preliminary approval of a proposed class action settlement and filed with the Court the Class Action Settlement Agreement. Defendants Tinder, Inc., Match Group, LLC, and Match Group, Inc. served written notice of the proposed class action settlement pursuant to 28 U.S.C. Section 1715. After full consideration of the papers filed in support of and in opposition to the motion for preliminary approval, the Court found the matter to be appropriate for decision without oral argument and issued its Order Granting Plaintiff's Motion for Preliminary Approval of Class Action Settlement and Certification of Settlement Class. Pursuant to the Preliminary Approval Order, the Court, among other things: (i) preliminarily certified (for settlement purposes only) a class of the Plaintiffs (Class Members) with respect to the claims in the Litigation; (ii) preliminarily approved the proposed settlement; (iii) appointed the Plaintiff as the Class Representative; (iv) appointed Law Offices of Todd M. Friedman, P.C. and Kristensen, LLP as the Class Counsel; and (v) set the date and time for the Final Approval hearing. On Nov. 29, 2021, Allan Candelore, Rich Allison, and Steve Frye filed their Motion for Attorneys' Fees and Expenses. On the same day, the Class Counsel filed their Motion for Attorneys' Fees, Costs, and Incentive Awards. On Dec. 13, 2021, the Class Counsel filed their Motion for Final Approval of Class Settlement, requesting final certification of the settlement class under Federal Rule of Civil Procedure 23(a) and (b)(3) and final approval of the class action settlement. On Feb. 25, 2022, a Final Approval Hearing was held. The Court read and considered the Agreement, Allison's and Frye's Motion for Attorneys' Fees, the Plaintiff's Motion for Attorneys' Fees, and the Plaintiff's Motion for Final Approval, and all papers filed in support and in opposition thereto, and the complete record in the Litigation. On March 4, 2022, the Court issued its Order granting the Plaintiff's Motion for Attorneys' Fees, Allison's and Frye's Motion for Attorneys' Fees, and the Plaintiff's Motion for Final Approval. For purposes of approval of the Settlement and Final Approval Order, Judge Walter certified the Settlement Class, which consists of every person in California who subscribed to Tinder Plus or Tinder Gold during the period between March 2, 2015 and March 1, 2019 and at the time of the subscription was at least 29 years old and was charged a higher rate than younger subscribers, except for persons who have timely opted out of the Settlement Class. The Objectors seek a review of this order by Judge Walter. The appellate case is captioned as Lisa Kim, et al. v. Tinder, Inc., et al., Case No. 22-55345, in the United States Court of Appeals for the Ninth Circuit, filed on April 5, 2022. The briefing schedule in the Appellate Case states that: -- Appellants Rich Allison and Steve Frye Mediation Questionnaire was due on April 12, 2022; -- Transcript shall be ordered by May 4, 2022; -- Transcript is due on June 3, 2022; -- Appellants Rich Allison and Steve Frye opening brief is due on July 11, 2022; -- Appellees Lisa Kim, Match Group, Inc., Match Group, LLC and Tinder, Inc. answering brief is due on August 11, 2022; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Objectors-Appellants RICH ALLISON and STEVE FRYE are represented by: Kimberly A. Kralowec, Esq. KRALOWEC LAW, P.C. 750 Battery Street, Suite 700 San Francisco, CA 94111 Telephone: (415) 546-6800 - and - Danielle Leonard, Esq. Michael Rubin, Esq. ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 - and - Alfred G. Rava, Esq. THE RAVA LAW FIRM 3667 Voltaire Street San Diego, CA 92106 Telephone: (619) 238-1993 Plaintiff-Appellee LISA KIM, individually and on behalf of all others 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 - and - John P. Kristensen, Esq. CARPENTER & ZUCKERMAN 8827 W Olympic Boulevard Beverly Hills, CA 90211 Telephone: (310) 507-7924 Defendant-Appellee TINDER, INC., a Delaware corporation; MATCH GROUP, LLC, a Delaware limited liability company; and MATCH GROUP, INC., a Delaware corporation, are represented by: Donald Brown, Esq. MANATT, PHELPS & PHILLIPS, LLP 2049 Century Park, E, Suite 1700 Los Angeles, CA 90067 Telephone: (310) 312-4318 - and - Robert H. Platt, Esq. MANATT, PHELPS & PHILLIPS, LLP 11355 West Olympic Boulevard Los Angeles, CA 90064 Telephone: (310) 312-4221 TIVITY HEALTH: Juan Monteverde Probes Securities Claims Over Merger ------------------------------------------------------------------- Juan Monteverde, founder and managing partner of the class action firm Monteverde & Associates PC (the "M&A Class Action Firm"), a national securities firm rated Top 50 in the 2018-2020 ISS Securities Class Action Services Report and headquartered at the Empire State Building in New York City, is investigating: Tivity Health, Inc. (TVTY), relating to its proposed acquisition by funds managed by Stone Point Capital. Under the terms of the agreement, TVTY shareholders will receive $32.50 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/tivity-health-inc. It is free and there is no cost or obligation to you. Manning & Napier, Inc. (MN), relating to its proposed acquisition by Callodine Group, LLC. Under the terms of the agreement, MN shareholders will receive $12.85 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/manning-napier-inc. It is free and there is no cost or obligation to you. Randolph Bancorp, Inc. (RNDB), relating to its proposed acquisition by Hometown Financial Group, Inc. Under the terms of the agreement, RNDB shareholders will receive $27.00 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/randolph-bancorp-inc. It is free and there is no cost or obligation to you. LHC Group, Inc. (LHCG), relating to its proposed acquisition by Optum, part of UnitedHealth Group. Under the terms of the agreement, LHCG shareholders are expected to receive $170.00 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/lhc-group-inc. It is free and there is no cost or obligation to you. Nielsen Holdings plc (NLSN), relating to its proposed acquisition by a consortium of private equity led by Evergreen Coast Capital Corp. and Brookfield Business Partners LP. Under the terms of the agreement, NLSN shareholders will receive $28.00 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/nielsen-holdings-plc-0. It is free and there is no cost or obligation to you. Plantronics, Inc. (POLY), relating to its proposed acquisition by HP Inc. Under the terms of the agreement, POLY shareholders will receive $40.00 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/plantronics-inc. It is free and there is no cost or obligation to you. About Monteverde & Associates PC Monteverde & Associates PC is a national class action securities litigation law firm that has recovered millions of dollars and is committed to protecting shareholders from corporate wrongdoing. It was listed in the Top 50 in the 2018-2020 ISS Securities Class Action Services Report. Its lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions. Mr. Monteverde is recognized by Super Lawyers as a Rising Star in Securities Litigation in 2013, 2017-2019, an award given to less than 2.5% of attorneys in a particular field. He has also been selected by Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. The firm's recent successes include changing the law in a significant victory that lowered the standard of liability under Section 14(e) of the Exchange Act in the Ninth Circuit. Thereafter, our firm successfully preserved this victory by obtaining dismissal of a writ of certiorari as improvidently granted at the United States Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019). Also, in 2019 the firm recovered or secured six cash common funds for shareholders in mergers & acquisitions class action cases. If you own common stock in any of the above listed companies and wish to obtain additional information and protect your investments free of charge, please visit our website or contact Juan E. Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com or by telephone at (212) 971-1341. Contact: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Ave. Suite 4405 New York, NY 10118 United States of America jmonteverde@monteverdelaw.com Tel: (212) 971-1341 [GN] TOYOTA MOTOR: Australian Class Action Bill Could Reach $2 Billion ----------------------------------------------------------------- stuff.co.nz reports that Toyota could be forced to pay out thousands of Australian customers who were sold cars with faulty engine filters to the tune of AU$2 billion (NZ$2.17 billion), after the auto giant lost a class action lawsuit. In a Federal Court judgment handed down, Justice Michael Lee found 264,170 Australian drivers who bought some of the brand's top-selling cars were eligible for a payout. The class action alleged Hilux, Fortuner and Prado vehicles sold between October 2015 and April 2020 had defective diesel particulate filter systems, leaving owners out of pocket. The defect caused the vehicles to spill foul-smelling white smoke and decreased fuel efficiency. It also meant owners had to fork out for an excessive number of inspections, services and repairs, and in some cases, caused a loss of income when drivers could not use their cars or had to take time off to remedy the defect. New Zealand came off relatively lightly compared to Australia, with only around 2000 New Zealand-new vehicles being affected, a number that represents around 10 per cent of total Hilux, Fortuner and Prado sales over the time period concerned. Toyota redesigned the DPF to fix the issue, rolling it out in a 2020 update, while Toyota New Zealand is confident it has rectified the issue for all affected vehicles here, replacing the DPFs, or even the entire vehicle in a few cases. "In New Zealand, all affected DPFs that were identified by Toyota Motor Corporation have been rectified for those affected customers in this country," said a spokesperson for Toyota New Zealand contacted by Stuff. "As a company we have decided to extend our customer campaign wider than that to include some other affected customers who we are currently working through replacing their DPFs." With high ambient temperatures worsening the issue, the Australian market saw far larger numbers of DPF failure, with Justice Lee finding each vehicle affected was worth 17.5 per cent less than what the average customer paid, and customers were entitled to be reimbursed that difference. For the lead applicant of the class action, Ken Williams, that is AU$7474.59. Mr Williams also persuaded the judge to grant him AU$4725 in damages for lost income, and AU$992 in excess tax. All up, he is entitled to more than AU$13,000. In a statement, Mr Williams said he hoped the decision provided comfort to people had to deal with the disappointment, inconvenience and extra cost of owning the vehicles. "I am thrilled with the judgment, particularly that the court has found that hundreds of thousands of ordinary Australian consumers who bought these vehicles are entitled to be awarded damages for the losses they suffered as a result," he said. If all eligible customers claim their payouts, the bill for Toyota in Australia could exceed AU$2 billion. However, at the trial, Toyota had argued it had done its best to rectify the issue. "(Toyota) asserts it made it known to group members that they were able to have the defect repaired at no cost to them and group members who have not taken up that offer have behaved unreasonably such that they should not be compensated," Justice Lee noted in the judgment. Since the class action began, Toyota says it has also offered refunds and replacement vehicles to hundreds of consumers. But Justice Lee concluded the company had been misleading in continuing to market the vehicles as being of acceptable quality after learning of the defect. "TMCA also admits that it engaged in the omissions conduct, including failing to disclose the core defect and defect consequences to prospective purchasers." In a statement, a Toyota Australia spokesperson said the company was reviewing the court's judgment. "At every step, we believe that we have implemented customer-focused and technically grounded remedies to resolve customers' concerns," they said. "Toyota will carefully consider the initial trial judgment before making any further comment." [GN] TOYOTA MOTOR: To Pay Out Up to $2BB in Faulty Engine Class Suit --------------------------------------------------------------- Tiffanie Turnbull, writing for The Canberra Times, reports that Toyota could be forced to pay out thousands of Australian customers who were sold cars with faulty engine filters to the tune of $2 billion, after the auto giant lost a class action lawsuit. In a Federal Court judgment handed down on April 7, Justice Michael Lee found 264,170 drivers who bought some of the brand's top-selling cars were eligible for a payout. The class action alleged Hilux, Fortuner and Prado vehicles sold between October 2015 and April 2020 had defective diesel particulate filter systems, leaving owners out of pocket. The defect caused the vehicles to spill foul-smelling white smoke and decreased fuel efficiency. It also meant owners had to fork out for an excessive number of inspections, services and repairs, and in some cases, caused a loss of income when drivers could not use their cars or had to take time off to remedy the defect. Justice Lee found each vehicle was worth 17.5 per cent less than what the average customer paid, and customers were entitled to be reimbursed that difference. For the lead applicant of the class action, Ken Williams, that is $7474.59. Mr Williams also persuaded the judge to grant him $4725 in damages for lost income, and $992 in excess tax. All up, he is entitled to more than $13,000. In a statement, Mr Williams said he hoped the decision provided comfort to people had to deal with the disappointment, inconvenience and extra cost of owning the vehicles. "I am thrilled with the judgment, particularly that the court has found that hundreds of thousands of ordinary Australian consumers who bought these vehicles are entitled to be awarded damages for the losses they suffered as a result," he said. If all eligible customers claim their payouts, the bill for Toyota could exceed $2 billion. However, at the trial, Toyota had argued it had done its best to rectify the issue. "(Toyota) asserts it made it known to group members that they were able to have the defect repaired at no cost to them and group members who have not taken up that offer have behaved unreasonably such that they should not be compensated," Justice Lee noted in the judgment. Since the class action began, Toyota says it has also offered refunds and replacement vehicles to hundreds of consumers. But Justice Lee concluded the company had been misleading in continuing to market the vehicles as being of acceptable quality after learning of the defect. "TMCA also admits that it engaged in the omissions conduct, including failing to disclose the core defect and defect consequences to prospective purchasers." In a statement, a Toyota spokeswoman said the company was reviewing the court's judgment. "At every step, we believe that we have implemented customer-focused and technically grounded remedies to resolve customers' concerns," she said. "Toyota will carefully consider the initial trial judgment before making any further comment." [GN] TRADER JOE'S: Cristia Files Suit Over Mislabeled Cold Pressed Juice ------------------------------------------------------------------- Lisa Cristia, individually and on behalf of all others similarly situated, Plaintiff v. Trader Joe's Company, Defendant, Case No. 1:22-cv-01788, (N.D. Ill., April 7, 2022) arises from the Defendant's mislabeled front label representations of its juice represented as "Cold Pressed" under its Trader Joe's brand, in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, State Consumer Fraud Acts, and the Magnuson Moss Warranty Act. According to the complaint, the relevant front label representations include "Cold Pressed Juice," the type or flavor, i.e., "Green," "Perishable, Keep Refrigerated" and "Trader Joe's." The Defendant sells the product in the produce section of its stores, in proximity to fresh fruit and vegetable products, which gives consumers, including the Plaintiff, the impression it is freshly made, and reinforces the statement of "cold pressed juice." However, the product has more in common with juices sold in standard refrigerator cases, because it is not freshly made or only cold pressed, says the complaint. As a result of the alleged false and misleading representations, the product is sold at a premium price, approximately no less than no less than $3.39 per 15.2 OZ, excluding tax and sales, higher than similar products, represented in a non-misleading way, and higher than it would be sold for absent the misleading representations and omissions, asserts the complaint. Trader Joe's is an American chain of grocery stores with 530 stores across the U.S.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck, NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com TWITER INC: Judge Affirms Securities Class Action Dismissal ----------------------------------------------------------- Shearman & Sterling LLP, in an article for JDSupra, reports that on March 23, 2022, Judge Kenneth K. Lee of the United States Court of Appeals for the Ninth Circuit affirmed the United States District Court for the Northern District of California's dismissal of claims brought under Sections 10(b) and 20(a) of the Securities Exchange Act (the "Exchange Act") and Rule 10b-5 thereunder against a social media company (the "Company") and certain of its executive officers. Weston Family Partnership LLLP et al. v. Twitter Inc. et al., No. 20-17465 (9th Cir. Mar. 23, 2022). Plaintiffs alleged that the Company failed to disclose the scope of software issues that led to a loss in advertising revenue, which ultimately caused the Company's share price to drop. The Court affirmed the district court's order granting defendants' motion to dismiss, holding that plaintiffs failed to state a claim because the Company's statements were not false or materially misleading. The Court stated that "securities laws . . . do not require real-time business updates or complete disclosure of all material information whenever a company speaks on a particular topic. To the contrary, a company can speak selectively about its business so long as its statements do not paint a misleading picture. [The Company's] statements about its advertising program were not false or misleading because they were qualified and factually true. The Company had no duty to disclose any more than it did under federal securities law." According to the Court: "every day, millions of people use [the Company] to share and read news, offer (often horrendous) hot takes, and fire off mean [messages. The Company], in turn, mines the personal data of its users to better target advertisements." In August 2019, the Company revealed that "software bugs" had caused it to inadvertently share with advertisers the personal data of users who had opted out of data-sharing. The Company stated that it had "fixed these issues. In October 2019, the Company disclosed that software bugs had hampered its advertisement customization and that it had suffered a $25 million revenue shortfall. The Company's share price dropped over 20%. Plaintiffs are investors who filed a consolidated class action complaint alleging that various statements by the Company were false or materially misleading. Plaintiffs alleged that statements in the July 31, 2019 Form 10-Q—that the Company was "continuing [its] work to increase the stability, performance, and flexibility of [its] ads platform," but that it was "not there yet"—were misleading because "defendants did not disclose the software bugs allegedly plaguing" their software. Plaintiffs also alleged that warnings in the 10-Q that "the Company's products and services 'may contain undetected software errors, which could harm [its] business and operating results'" were misleading because the Company allegedly knew by then that software bugs were certain to harm its bottom line. In addition to the 10-Q statements, Plaintiffs further alleged that the Company misleadingly claimed it had resolved the software bugs in August 2019—because the Company had in fact allegedly stopped data-sharing altogether rather than fixing the bugs—and that one of the executives made other public statements that glossed over the software bugs. The district court granted defendants' motion to dismiss, and plaintiffs appealed. On appeal, the Court first held that plaintiffs failed to state a claim under Section 10(b) because the Company's statements were not false or materially misleading. The Court disagreed with plaintiffs' argument that the Company had a legal duty to disclose the software bugs to the investing public, noting that "companies do not have an obligation to offer an instantaneous update of every internal development" under Section 10(b) and Rule 10b-5. The Court held that "[a] company must disclose a negative internal development only if its omission would make other statements materially misleading." The Court emphasized that to hold otherwise would "inject instability into the securities market, as stocks may wildly gyrate based on even fleeting developments." With respect to plaintiffs' allegations that defendants misled investors into believing that work to improve the data-sharing feature was "on track," the Court found that defendants' statements were "much more qualified and less definitive," noting that the 10-Q also stated that the work was "not there yet," that it was "ongoing," and that the Company was "still in the middle of that work." According to the Court, absent a "specific deadline or revenue impact" for the program, the Company's statements could not be seen as an implied affirmation of any specific target. The Court next held that plaintiffs did not plausibly allege that the software bugs had materialized and affected revenue in July 2019. The Court stated that "it is simply not enough to assume or implausibly infer" that defendants knew about the bugs in July 2019 based solely on the fact that they disclosed them in August 2019. Moreover, the Court was not persuaded by plaintiffs' argument that the Company knew about the bugs in August 2019 based on statements in the Company's July 2019 10-Q filing that the product could contain "undetected software errors." The Court reiterated that "nothing in the complaint suggest[ed] that the company knew of the bugs in July 2019," and that plaintiffs merely relied on the assumption that "these types of bugs . . . take three to six months to fix." Further, the Court rejected plaintiffs' argument that defendants' social media post about fixing the bugs in August 2019 "was referring to the fix of the software bugs, and not just a halt to the data-sharing," noting that the context of the post makes clear that the Company had "'fixed' the inadvertent data-sharing; there is no mention of software bugs." Finally, the Court held that defendants' statements in their shareholder letter and 10-Q were forward-looking and "accompanied by very detailed meaningful cautionary language," and therefore fell within the safe harbor provision of the Exchange Act. Because plaintiffs did not adequately plead a primary violation of Section 10(b) or Rule 10b-5, the Court also affirmed the dismissal of the Section 20(a) claims against the individual defendants. Weston Family Partnership LLLP et al. v. Twitter Inc. et al. [GN] TYSON FOODS: Faces Class Action Over "Product of the U.S.A." Labels ------------------------------------------------------------------- Nathan A. Adams IV, Esq., of Holland & Knight, disclosed that in Thornton v. Tyson Foods, Inc., No. 20-2124, 2022 WL 727628 (10th Cir. March 11, 2022), a consumer who purchased beef from retail stores filed a class action complaint against meat processors, alleging that their "Product of the U.S.A." labels deceived her and other consumers into paying higher prices for beef based on the mistaken belief that it originated from cattle born and raised in the United States. A multi-generational rancher in New Mexico filed a separate class action complaint alleging that he and other ranchers were paid less for their domestic cattle as a result of meat processors' conduct and, more specifically, as a result of placing the label on already-slaughtered beef that they import into the country. The cases were consolidated. The district court dismissed the complaints for violations of the unjust enrichment, breach of warranty, violation of the New Mexico Unfair Practices Act, violation of state antitrust law and false advertising. A split court of appeals affirmed the dismissal on the grounds that an express preemption provision of the Federal Meat Inspection Act preempted the deceptive labeling claims notwithstanding that a label was optional. That provision prohibits states from imposing any "labeling . . . requirements in addition to, or different than" the federal requirements. Under federal law, the meat processors' products were not misbranded; the labels were pre-approved by the Food Safety and Inspection Service (FSIS). The FSIS manual states that the label "applie[s] to products that, at a minimum, have been prepared in the United States" and does not "mean that the product is derived only from animals that were born, raised, slaughtered and prepared in the United States." "Biologically Appropriate" and "Fresh Regional Ingredients" on Label Not Actionable Nathan A. Adams IV In Song v. Champion Petfoods USA, Inc., No. 20-3689, 2022 WL 677895 (8th Cir. March 8, 2022), consumers filed a putative class action lawsuit alleging that they were misled by claims made on packages of dog food that the food was "biologically appropriate" and included "fresh regional ingredients." The plaintiffs sued for violations of consumer protection statutes, fraudulent misrepresentation and fraudulent concealment. The court of appeals determined that the district court properly dismissed the plaintiffs' claims. Under Minnesota law, the first claim did not indicate to the ordinary reasonable consumer a complete absence of heavy metals, and the second did not misleadingly indicate that all of the ingredients were fresh and regional. The plaintiffs conceded that heavy metals occur naturally in meat and fish. Although not all ingredients were fresh and sourced regionally, some were, and the reasonable consumer would not assume all were. Data Breach Petition for Permission to Appeal Class Action Certification Against Restaurant Chain Denied Melissa Gold In re Sonic Corp., No. 20-0305, 2021 WL 6694843 (6th Cir. Aug. 24, 2021) concerns a data breach against Sonic Corp. and its affiliates and subsidiaries experienced between April 2017 and October 2017, allegedly compromising payment card data from millions of transactions at hundreds of its stores. In response to Sonic's data breach, at issue class actions were consolidated and transferred to the U.S. District Court, N.D. Ohio, Eastern Division. On Nov. 13, 2020, the district court certified a class with the following criteria: 1) all banks, credit unions and financial institutions in the U.S., 2) that received notice, 3) that took action to reissue credit or debit cards or reimbursed a compromised account, and 4) that were involved in the Sonic data breach. In response, Sonic filed a petition for permission to appeal the order certifying a class action to recover economic damages incurred by various financial institutions and credit unions arising from their reissuance of cards and reimbursement of accounts following the data breach. In Sonic's petition for permission to appeal, it conceded that the first two class criteria are administratively feasible and that it can determine which financial institutions received notice of the breach, but contended that the remaining criteria require individualized assessment and self-identification by each plaintiff instead of reference to evidence within Sonic's control or that of a third party. The U.S. Court of Appeals for the Sixth Circuit denied Sonic's petition for permission to appeal and granted the financial institutions' motion for leave to file a reply. First, the Sixth Circuit held it has never rejected self-identification as a means of determining membership when there are records verifying that determination. Second, information from the individual financial institutions, cross-referenced with third parties, can then establish that an institution had accounts impacted by the breach, and that they reissued potentially compromised cards or reimbursed customers for losses sustained on those accounts. Third, whether the financial institutions took action as a direct result of the Sonic data breach goes to the causation element for establishing negligence, and not whether the class is ascertainable. Finally, the court considered Sonic's annual revenue to decide that the cost of continuing the litigation should not present such a barrier that subsequent review is hampered. COVID-19 Business Interruption Coverage Not Available for Shutdown Orders Nathan A. Adams IV Restaurants seeking business interruption coverage for government shutdown orders continue to lose in court. For example, SA Hospitality Group LLC, which owns a group of food service establishments, purchased standard all-risk commercial property insurance for itself and for the other plaintiffs and sought business interruption coverage for the period in which it was unable to use its facilities due to government orders that limited in-person dining services due to COVID-19. In SA Hospitality Gp., LLC v. Hartford Fire Ins. Co., No. 21-1523-cv, 2022 WL 815683 (2d Cir. March 18, 2022), the court affirmed the plaintiffs' lawsuit. The plaintiffs' insurance policy included business interruption coverage as follows: "We will pay . . . for the actual loss of Business Income you sustain and the actual, necessary and reasonable Extra Expense you incur due to the necessary interruption of your business during the Period of Restoration due to direct physical loss or direct physical damage to property caused by or resulting from a Covered Cause of Loss… ." The district court decided that the plaintiff had not alleged a direct physical loss of or damage to property. The plaintiff argued on appeal that the governmental orders prevented it from using its property for its intended purpose, which amounted to a "direct physical loss of" the property. The appellate court ruled that this argument was foreclosed by a recent case in the Second Circuit and that no exception to the binding authority of that case applied. The appellate court also declined to certify the issue to the New York Court of Appeals. In Hillbro, LLC v. Oregon Mutual Ins. Co., No. 3:21-cv-00382-HZ, 2021 WL 4071864 (D. Or. Sept. 7, 2021), the plaintiff operated a restaurant and bar insured by defendant. Due to closure orders issued by the state of Washington, plaintiff had to close, suspend and/or curtail its business exclusively to serve takeout food for off-premises consumption leading to financial losses. The district court dismissed the plaintiff restaurant's putative class action lawsuit for breach of the plaintiff's insurance policy, which states, "We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss," defined as "[r]isks of direct physical loss" unless otherwise limited or excluded under other provisions of the Property coverage." Interpreting these provisions in light of dictionary definitions of terms such as "physical," the court decided that "for a Covered Cause of Loss to have occurred, Plaintiff must demonstrate that COVID-19 or Governor [Jay] Inslee's executive orders caused harm to or destroyed its business property or dispossessed plaintiff of its business property." The Civil Authority coverage portion of the policy states, "We will pay for the actual loss of Business Income you sustain and necessary Extra Expense caused by action of civil authority that prohibits access to the described premises due to direct physical loss of or damage to property, other than at the described premises, caused by or resulting from any Covered Cause of Loss." The court determined that this provision "requires that an action of civil authority prohibited access to Plaintiff's restaurants due to the loss, destruction, dispossession of or injury to property other than Plaintiff's property for coverage to apply." Construing the plaintiff's allegations in the light most favorable to plaintiff, the court determined that "the losses plaintiff alleges are purely economic and not the result of any 'direct physical loss of or damage to property.' " Therefore, no coverage exists under the policy. In GCDC LLC v. Sentinel Ins. Co., Ltd., Civil Act No. 20-1094, 2021 WL 4438908 (D.D.C. Sept. 28, 2021), the plaintiff was a restaurant that specializes in grilled cheese sandwiches. To comply with local governmental orders relating to COVID-19, the plaintiff had to modify its floorplan to keep diners spread far apart and later discontinued all indoor dining. The plaintiff filed a putative class action seeking, inter alia, a declaration that its income losses are covered by the defendant's insurance policy. The defendant's policy states, "We will not pay for loss or damage caused directly or indirectly by" the "[p]resence, growth, proliferation, spread or any activity of fungi,' wet rot, dry rot, bacteria or virus." The complaint referred to COVID-19 as a virus, alleged that the District of Columbia issued the orders to slow its spread and alleged that those orders led to the plaintiff's loss of income. "Under the policy, that's the ballgame. Coverage is barred." Even if the exclusion did not apply, the court added that the governmental orders were not "Covered Cause[] of Loss" or "risks of direct physical loss." Similar rulings dependent upon a pathogen exclusion were entered in Creative Bus. Inc. v. Covington Specialty Ins. Co., No. 2:20-cv-02452-JTF-ATE, 2021 WL 4191466 (W.D. Tenn. Sept. 9, 2021) (mandated closure and capacity limitations on the insured's restaurant due to COVID-19 did not constitute "direct physical loss of or damage to" the insured property, as required for business income coverage under the policy, but even if the coronavirus were present at the insured premises, the policy's pathogen exclusion precluded coverage) and Caterer's in the Park, LLC v. Ohio Sec. Ins. Co., No. 20-6867, 2021 WL 4994463 (D. N.J. Oct. 26, 2021) (virus exclusion excludes the plaintiff's alleged losses from coverage). In Nari Suda LLC v. Or. Mut. Ins. Co., No. 3:20-cv-01476-HZ, 2021 WL 4067684 (D. Or. Sept. 6, 2021), restaurants filed putative class action claims for breach of contract, breach of implied covenant of good faith and fair dealing, declaratory relief and violation of California's unfair competition law against their insurer due to its denial of their claims under business owners' policies seeking coverage for financial losses resulting from state and local government closure orders issued in response to COVID-19. The policy provided for payment for the actual loss of business income sustained due to the necessary suspension of their operations if the suspension was "caused by direct physical loss of or damage to property at the described premises." However, the policy contained an exclusion related to the enforcement of an ordinance or law. The court ruled that the "absence of facts demonstrating any physical loss or damage to their business property is fatal to Plaintiffs' claim." The court ruled that the plaintiffs' losses are purely economic. "Direct physical loss of or damage to property" does not include a loss of use or impairment of functionality of undamaged property for its intended purpose. Because the plaintiff failed to demonstrate that coverage exists, the court declined to determine whether any exclusion from coverage applies. Wage and Hour Court Denies Effort to Enjoin New 80/20 Rule Nathan A. Adams IV In Restaurant Law Ctr. v. U.S. Dep't of Labor, No. 1:21-cv-1106-RP, 2022 WL 526243 (W.D. Tex. Feb. 22, 2022), the plaintiffs unsuccessfully sought permanently to enjoin the newest version of the so-called 80/20 rule. As background, under the original 80/20 rule adopted in 1988, the U.S. Department of Labor (DOL) indicated that if an employee spent "in excess of 20 percent" of the employee's time on untipped work, that work was performed more than "occasionally," and thus "no tip credit may be taken." In November 2018, DOL announced that it was abolishing the limitation on duties related to the tip-producing occupation if they were performed "contemporaneously" or within a "reasonable time" before or after "direct-service duties." Lower courts widely disregarded the new guidance. The DOL issued a notice of proposed rulemaking on June 23, 2021. In response to comments from the restaurant industry and others, DOL issued a final rule on Oct. 29, 2021. The rule went into effect on Dec. 28, 2021. The new 80/20 rule clarifies that the tip credit is available only for hours spent working in the tipped occupation. It codifies the 80/20 rule and adds a 30-minute limitation on non-tipped work allowable when taking the tip credit. It elaborates on who qualifies for the tip credit, stating that an employee is "engaged in a tipped occupation when the employee performs work that is part of the tipped occupation" and "may only take a tip credit for work performed by a tipped employee that is part of the employee's tipped occupation." It sets out the following three-part framework to classify tipped work as: 1) work that is part of the tipped occupation and produces tips; 2) work that is part of the tipped occupation and directly supports tip-producing work (subject to the 30-minute rule) though it is not directly tip-producing; and 3) other, non-tipped work that is not subject to the tip credit. The plaintiffs challenged the rule on the grounds that it creates a new definition of "tipped occupation" that lacks support in the Fair Labor Standards Act (FLSA). The court denied injunctive relief because it determined that the plaintiffs failed to meet their burden to show that they will be irreparably harmed without the injunction. The plaintiffs "claim the main source of harm from the Rule is in the compliance costs it entails." But the court decided the plaintiffs' arguments and evidence of irreparable harm was speculative. Court Certifies Delivery Driver Wage and Hour Class Action Lawsuit Nathan A. Adams IV In Hong v. Haiku @ WP, Inc., No. 19 Civ 5018 (NSR), 2022 WL 263575 (S.D. N.Y. Jan. 28, 2022), a former delivery driver for Haiku Asian Bistro filed a putative class action alleging wage and hour violations under the FLSA and New York Labor Law for violation of the minimum wage for the first 40 hours per week and less than 1.5 times the minimum wage for each hour over 40 hours per week. Haiku employed approximately three to five delivery persons, eight to nine sushi bar workers, five waiters, five cooks, three fry wok workers and two cashiers. The plaintiff claimed he had to work through his break two days per week, did not have a fixed time for lunch or dinner, $10 per week was deducted in cash tips, $20 to $25 per week was deducted as a meal credit and $24 per week was deducted for transportation. He received no weekly pay statement or notice of the deductions and was not informed of his hourly pay rate nor any tip deductions toward the minimum wage. The plaintiff used his own vehicle and was not reimbursed for gasoline or vehicle maintenance. He drove an average of 2 miles each way to deliver about 25 customer orders, totaling about 100 miles per workday. On average, two or three orders per day were outside the 4.5-mile delivery radius, and for making such deliveries, he earned an extra $3 in tips. The court granted in part and denied in part the plaintiff's motion for class certification. The court granted the motion with respect to the conditional certification of delivery drivers and denied the motion with respect to other non-managerial employees about whom the plaintiff failed to meet even his modest burden of showing that these waiters/waitresses, sushi chefs, cashiers and kitchen workers are similarly situated to him. Because the plaintiff alleges that the violations of wage and hour law were willful, the court permitted notice to be distributed to all potential plaintiffs employed within three years of the date of the filing of the complaint and deferred consideration of the statute of limitations until after the opt-in period. The court required the defendants to produce electronic and other contact information for these employees and specified what the notice must contain: 1) the purpose of the notice; 2) the nature of the lawsuit filed and the relief being sought; 3) the proposed class composition; 4) the legal effect of joining the lawsuit; 5) the fact that the court has not taken any position regarding the merits of the lawsuit; 6) how to join the lawsuit; 7) the purely voluntary nature of the decision and legal effect of not joining the lawsuit; 8) the prohibition against retaliation; 9) the relevant contact information for any inquiries; 10) warning that opt-in plaintiffs may be required to provide information, appear for deposition or testify in court; and 11) disclose the fee arrangement between plaintiff's counsel and any opt-in plaintiffs. The court set the opt-in period at 60 days, although plaintiffs requested 90 days. Arbitration Pre-Dispute Arbitration Clauses No Longer Enforceable Against Sexual Harassment Claims Nathan A. Adams IV The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 amended the Federal Arbitration Act (FAA) to enable employees to set aside pre-dispute arbitration agreements requiring them to arbitrate disputes involving nonconsensual and/or unwanted sexual acts or contact, advances, physical contact that is sexual in nature, sexual attention, sexual comments and propositions for sexual activity, conditioning employment benefits on sexual activity or retaliation for rejecting unwanted sexual attention. The amendment applies whether the claims at issue arise under federal, state, local or tribal law. In the event of the same conduct, the employee may also set aside pre-dispute joint-action waivers that bar employees from participating in joint, class or collective actions concerning sexual assault or harassment claims brought in a judicial, arbitral, administrative or any other forum. The amendment also requires courts, rather than arbitrators, to determine both the applicability of HR 4445 to a given arbitration agreement and the validity and enforceability of any agreement to which the bill applies, regardless of whether the agreement at issue delegates such authority to an arbitrator. The amendment states that it does not apply retroactively to any claims that arose or accrued prior to its enactment. The amendment does not apply to conduct other than sexual assault and harassment. Accord Levy v. AT&T Servs., Inc., No. 21-11758, 2022 WL 844440 n.1 (D.N.J. March 22, 2022) (because plaintiff brings age discrimination claims, the amendment does not apply). The U.S. House of Representatives passed HR 4445 by a vote of 335 to 97 on Feb. 7, 2022. The Senate passed the bill by voice vote without amendment on Feb. 10, 2022. President Joe Biden signed the amendment on March 3, 2022. ADA Drive-Thru-Only Policy Not an ADA Violation Nathan A. Adams IV In Szwanek v. Jack in the Box, Inc., No. 20-16942, 2021 WL 5104372 (9th Cir. Nov. 3, 2021), the court affirmed dismissal of the plaintiffs' putative class action lawsuit grounded on the claim that the defendant violated Title III of the Americans with Disabilities Act (ADA) and the Unruh Civil Rights Act by closing inside seating at night in two of its restaurants and serving food solely through drive-thru windows that are available only to customers in motor vehicles. The court determined that a facially neutral policy violates the ADA only if it burdens a plaintiff "in a manner different and greater than it burdens others." The court decided that the defendant's policy burdens the plaintiffs in the same manner as able-bodied individuals who wish to purchase food when indoor dining is not available and do not drive or have access to motor vehicles. The court added there are no ADA regulations on point and no indication that Congress meant to address this situation. [GN] ULTA BEAUTY: Illinois Court Tosses Securities Class Action ---------------------------------------------------------- Shearman & Sterling LLP, in an article for Mondaq, reports that on March 30, 2022, the United States District Court for the Northern District of Illinois dismissed, without prejudice, a putative class action asserting claims under the Securities Exchange Act of 1934 against a cosmetics retailer and certain of its executives. Chandler v. Ulta Beauty, Inc., No. 18-CV-1577, 2022 WL 952441, at *1 (N.D. Ill. Mar. 30, 2022). Plaintiffs alleged that the company made various statements that were misleading because they failed to disclose the company's alleged practice of reselling used returned products. The Court held that plaintiffs failed to identify any actionable misrepresentations and failed to adequately allege scienter, but granted plaintiffs leave to replead. Plaintiffs alleged that the company's personnel were instructed to "retouch used and dirty returned products and resell them as new in order to reduce inventory losses." Id. at *3. Plaintiffs alleged on this basis that the company made misstatements and omissions relating to (i) compliance with the company code of conduct, (ii) the company's compensation program, (iii) the quality of the company's products, (iv) the company's financial results, and (v) the company's internal controls and reporting. Id. at *7. The Court held that plaintiffs failed to explain why the challenged statements were false. For example, with respect to the company's statements about compliance with the company code of conduct -- specifically, that employees "must act ethically at all times" and in accordance with the code of conduct, which itself provided that employees "should not deliberately misrepresent information to customers" -- the Court concluded that such statements were "immaterial as a matter of law" because they were "too general to cause a reasonable investor to rely upon them" and amounted to "inactionable puffery." Id. at *9. With respect to statements regarding the company's "compensation plans, practices and policies," the Court concluded that plaintiffs did not explain how those statements were false and further observed that the alleged improper reselling practices were "not so closely tied to compensation" that they were required to be disclosed in order to prevent the compensation-related statements from being misleading. Id. at *10. With respect to statements concerning product quality -- specifically, that the company had a "pipeline of newness and innovation in merchandising" -- the Court found that this statement was referring to new types of products and it was not reasonable to infer that the company was touting the product offerings as "being 'new' -- as opposed to used—because such a statement would only make sense if investors believed that [the company] was selling used products," something which the complaint alleged was being hidden from the public. Id. at *11. In addition, the Court held that challenged statements regarding the company's financial performance were not adequately alleged to be false or misleading, including because plaintiffs never alleged, even in a general sense, "what the correct sales, income, and inventory figures purportedly were that [the company] should have reported." Id. at *14. Similarly, the Court rejected plaintiffs' allegations as to statements regarding internal controls and reporting, explaining that plaintiffs failed to allege facts showing how such challenged statements were false or misleading and failed to explain "how [the company's] internal controls should have been designed differently." Id. at *21. The Court then evaluated plaintiffs' allegations of scienter and concluded that they failed to support a strong inference of scienter as to either the company itself or to the CEO or CFO, who were alleged to have made the challenged statements. The Court rejected plaintiffs' argument that the CFO's alleged attendance at committee meetings designed to prevent "shrink" -- losses from customer returns of products as well as theft and in-store damage -- showed the CFO's knowledge of the alleged improper reselling, including because there were no allegations that the scheme was discussed at such meetings. Id. at *23. Moreover, with respect to the CEO's alleged approval of bonuses relating to reduced "shrink," the Court discounted such allegations as they were attributed to a confidential witness who was four levels of seniority below the CEO, and there was no alleged basis for the confidential witness's knowledge of the CEO's alleged approval of the bonuses. Id. at *24. The Court also noted that even if the CEO had approved such bonuses, issues of "shrink" involved a number of different issues and not only issues relating to the alleged reselling practices. Id. The Court further rejected plaintiffs' argument that the CFO and CEO must have known about the alleged scheme given their roles and responsibilities. The Court explained that plaintiffs did not allege how many used products were resold or reshelved, or that reselling used products was critical to the company's operations. Id. at *24-26. While the Court determined that the CEO and CFO were "likely aware of [the company's] general problem with shrink," the Court emphasized that "it does not follow that they must have been aware that retail stores were combating it by selling used items," and plaintiffs failed to "quantify[] how significant the practice actually was." Id. at *25. Thus, the Court concluded that, even if the alleged reselling practice was widespread, it did not support a strong inference of scienter as to the CEO and CFO because there was "no alleged connection" between them and the alleged practice. Id. at *26. Similarly, the Court rejected plaintiffs' contention that the CEO and CFO had access to weekly reports that revealed stores were reselling used products, noting that neither executive was plausibly alleged to have reviewed those reports, and there was no allegation explaining how the reports would have revealed the alleged reselling practices. Id. at *27-28. In addition, the Court rejected plaintiffs' allegations of scienter based on the CEO's and CFO's stock sales. The Court concluded that those sales occurred "shortly after announcements of quarterly results, a pattern that appears benign on its face" and were not close in time to any other significant event. Id. at *28-29. Finally, the Court rejected plaintiffs' argument that scienter should be imputed to the company based on the allegation that employees other than the CEO and CFO were "aware of, and even encouraged, the resale of used products." Id. at *30. The Court explained that those employees' alleged knowledge could not be imputed to the company because they were "not alleged to have had any role in promulgating the alleged misrepresentations." Id. The Court concluded that the "most cogent explanation for [the company's] alleged conduct is that the resale of used product was an unfortunate and unintentional byproduct of [the company's] focus on reducing shrink," rather than something known by the executives responsible for the alleged misstatements. Id. at *31. Chandler v. Ulta Beauty, Inc. [GN] ULTIMATE KRONOS: Settles BIPA Class Action for $3.3 Million ----------------------------------------------------------- Top Class Actions reports that UKG will pay over $3.3 million as part of a settlement to resolve claims its timekeeping software violated Illinois biometric laws. The settlement benefits individuals who scanned their fingers or had their pictures taken in Illinois using an UltiPro TimeBase time clock, TouchBase time clock, or NOVAtime time clock between March 3, 2015, and Dec. 29, 2021. UKG is an HR company that provides timekeeping solutions, benefits tracking, and other services to employers. Some of UKGs timekeeping solutions involve biometric data such as fingerprint scans. Although UKG is a trusted provider of HR solutions, the company allegedly violated Illinois state law with its biometric time-keeping products. According to a class action lawsuit against the company, UKG violated Illinois' Biometric Information Privacy Act (BIPA). BIPA standardizes the way companies collect, store, share, and destroy Illinoisans' biometric data. The law requires clear disclosures, prior consent, and public policies about retention and destruction schedules. UKG violated all of these requirements through its TimeBase time clock, TouchBase time clock, or NOVAtime time clock, the class action lawsuit contends. Despite these products relying on biometric data such as fingerprint scans and facial geometry scans, UKG allegedly failed to meet BIPA disclosure and consent requirements. UKG agreed to resolve these allegations with a settlement worth $3.36 million. Under the terms of the settlement, Class Members can receive a cash payment. Payment amounts will vary but each claimant will receive a proportional share of the settlement fund. The settlement website estimates payments will be between $200 and $400 — though actual payments may be higher or lower depending on the number of valid claims filed. UKG has also agreed to take steps to comply with BIPA including publicizing its biometric policies, encouraging its clients to use UKG technology in a BIPA compliant way, and verifying that previously collected biometrics are stored and destroyed in accordance with the law. The deadline for exclusion and objection is April 15, 2022. The final approval hearing for the settlement is scheduled for May 20, 2022. In order to receive a settlement payment, Class Members must submit a valid claim form by May 6, 2022. Who's Eligible The settlement benefits individuals who scanned their fingers or had their pictures taken in Illinois using an UltiPro TimeBase time clock, TouchBase time clock, or NOVAtime time clock between March 3, 2015, and Dec. 29, 2021. Potential Award $200 to $400 (Estimated). Proof of Purchase No proof of purchase applicable. NOTE: If you do not qualify for this settlement do NOT file a claim. Remember: you are submitting your claim under penalty of perjury. You are also harming other eligible Class Members by submitting a fraudulent claim. If you're unsure if you qualify, please read the FAQ section of the Settlement Administrator's website to ensure you meet all standards (Top Class Actions is not a Settlement Administrator). If you don't qualify for this settlement, check out our database of other open class action settlements you may be eligible for. Claim Form Deadline 05/06/2022 Case Name Jackson, et al. v. UKG Inc., f/k/a The Ultimate Software Group Inc., Case No. 2020L31 in the Circuit Court of McLean County, Illinois Final Hearing 05/20/2022 Settlement Website UKGBIPASettlement.com Claims Administrator Jackson v. UKG Settlement Administrator P.O. Box 3805 Portland, OR 97208-3805 855-604-1751 Class Counsel Evan M Meyers Timothy P Kingsbury Brendan Duffner MCGUIRE LAW PC Defense Counsel Melissa A Siebert Ambria D Mahomes SHOOK HARDY & BACON LLP [GN] UNISWAP LABS: Kim & Serritella Discloses Securities Class Action ---------------------------------------------------------------- Kim & Serritella LLP and Barton LLP announce that a securities class action, captioned Risley v. Universal Navigation Inc. et al., 1:22-cv-02780-KPF (S.D.N.Y.) (the "Action") is pending against Universal Navigation Inc. dba Uniswap Labs ("Uniswap"), Hayden Z. Adams, Paradigm Operations LP, AH Capital Management, L.L.C. dba Andreessen Horowitz and Union Square Ventures, LLC (collectively, "Defendants") in the United States District Court for the Southern District of New York. The Action asserts claims under the Securities Act of 1933 and the Securities Exchange Act of 1934 on behalf of a proposed class of persons who purchased any of the following digital tokens on the Uniswap exchange between April 5, 2021 and April 4, 2022 (the "Class Period"): EthereumMax, Bezoge, Matrix Samurai, Alphawolf Finance, Rocket Bunny, and BoomBaby.io. (the "Tokens"). The Action seeks rescission and damages. The Action alleges that Uniswap and the other Defendants violated the securities laws by offering and selling unregistered securities in the form of digital tokens on the Uniswap exchange, including Uniswap's own token, UNI. The Action further alleges that the Defendants violated the securities laws because the Defendants failed to register Uniswap under applicable securities laws as an exchange and/or broker-dealer and failed to provide investors with registration statements for the securities they were offering and selling, which would have apprised investors of the risks and other important information associated with their investments. In addition, the Action alleges that the Defendants permitted unlawful activity in connection with tokens sold on the Uniswap exchange, such as "rug pulls" and "pump and dumps," and that the Defendants incentivized such unlawful activity because Uniswap collected fees for developers (with the ability to keep a portion of those fees for itself). If you purchased Tokens on the Uniswap exchange during the Class Period, you are a member of the proposed class and may move the Court to serve as lead plaintiff through counsel of your choice or may choose to do nothing and remain a member of the proposed class. A lead plaintiff is a court-appointed representative for members of a class. Lead plaintiff motion papers must be filed with the U.S. District Court for the Southern District of New York no later than 60 days after the date on which this notice is published. Should the court certify a class in the Action, your ability to share in any potential recovery is not dependent upon you serving as lead plaintiff. A class has not yet been certified in the Action. Unless and until a class is certified, you are not represented by counsel unless you retain a lawyer. You may retain counsel of your choice. If you would like to discuss the Action, your potential claims or have any questions regarding this notice, please contact Kim & Serritella LLP at (212) 931-8135 or via email at crypto@kandslaw.com [GN] UNISWAP LABS: Launches Venture Capital Arm Amid Class Action ------------------------------------------------------------ Anita Ramaswamy, writing for TechCrunch, reports that Uniswap Labs, the company behind the popular decentralized finance (DeFi) protocol, has launched a venture capital arm to invest in web3 projects. Uniswap Labs Ventures, the new division, will invest in companies across various stages and areas within web3, from infrastructure to developer tools and consumer-facing applications, according to the company. Investments will be made directly from the company's balance sheet, The Block first reported, though the company did not share any details on how large these checks will be or how much balance sheet capital will be dedicated to the fund. The firm is tapping Matteo Leibowitz to head up the venture arm alongside Uniswap's chief operating officer, Mary-Catherine Lader. Leibowitz previously worked at Uniswap as a strategy lead starting in August 2020, and prior to that, was a research analyst at The Block for nearly two years, according to Linkedin. Before launching this dedicated venture arm, Uniswap invested in 11 companies and protocols across the web3 ecosystem, including Tenderly, LayerZero, MakerDAO, Aave, Compound Protocol and PartyDAO, the company says. The Ethereum-native exchange appears to have largely backed other companies that are also in the Ethereum ecosystem. Its new ventures team plans to play an active role in on and off-chain governance "when relevant," it says. It has specifically announced plans to participate in the governance systems of MakerDAO, Aave, Compound and Ethereum Name Service (ENS) so far. The news comes about a week after a class-action lawsuit was filed against Uniswap Labs, as well as its founder and its own backers -- Paradigm, Andreessen Horowitz (a16z) and Union Square Ventures -- for allegedly engaging in rampant fraud" on the exchange. A spokesperson for the company said in a statement to TechCrunch that the lawsuit was riddled with factual inaccuracies. Uniswap Labs most recently raised $11 million in a Series A round in August 2020, which a16z led. Uniswap joins a growing segment of crypto-native companies now formally dedicating resources to investing in other companies in the space, including crypto exchange FTX and DeFi protocol Cake, which both recently launched venture funds. Companies like Uniswap, which already have experience building in web3, can apply their expertise and lessons learned to other areas of the crypto market through their early-stage investments, DeFi researcher Ryan Rasmussen of Bitwise Asset Management wrote in a tweet. The decentralized exchange is the fifth-largest in DeFi by Total Value Locked (TVL), a metric that represents the size of the assets on the protocol, according to blockchain data provider DeFi Pulse. It had $7.04 billion in TVL, around half that of the leading DeFi platform, Maker, as of April 11, DeFi Pulse shows. Lader told TechCrunch that the broader trend of web3 companies making venture investments represents their desire to collaborate rather than compete with one another. "Decentralized finance and web3 are inherently collaborative. This growth of strategic investing reflects the key values and ethos of building technology in web3," she wrote in an email.[GN] UNITED STATES: Clark Appeals Judgment in Civil Rights Suit ---------------------------------------------------------- Plaintiffs Angelica Clark, et al., filed an appeal from a court ruling entered in the lawsuit styled Angelica Clark, et al. v. Chad Wolf, et al., Case No. 3:20-cv-01436-IM, in the U.S. District Court for the District of Oregon, Portland. The lawsuit is a class action brought by named Plaintiffs Angelica Clark, Ellen Gass, Nathaniel West, and Rowan Maher. The Plaintiffs allege they were subjected to unconstitutionally excessive force or unlawful detention by federal officers during Portland's Black Lives Matter protests in July of 2020. The Plaintiffs seek monetary damages from the federal officers sued in their individual capacities under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), for alleged violations of Plaintiffs' Fourth Amendment rights. The Plaintiffs also seek a declaratory judgment against all Defendants asking the Court to prohibit Defendants from "indiscriminately us[ing] tear gas, shoot[ing], or beat[ing] them while they are engaged in constitutionally protected assembly, speech, and expressive conduct." As reported in the Class Action Reporter on February 11, 2022, the Court entered an order granting Defendants Russel Burger, Richard Cline, Allen Scott Jones, Mark Morgan, Gabriel Russell, and Andrew Smith's motion to dismiss, and dismissing Plaintiff's claims against these Defendants for failure to state a claim. On March 25, 2022, Judge Karin J. Immergut entered Judgment granting unopposed motion for entry of Federal Rule of Civil Procedure 54(b) Judgment. The Court's Opinion and Order dated February 3, 2022 fully disposed of Plaintiffs' claims against Defendants Burger, Cline, Jones, Morgan, Russell, and Smith. The Plaintiffs now seek a review of this order. The appellate case is captioned as Angelica Clark, et al. v. Gabriel Russell, et al., Case No. 22-35276, in the United States Court of Appeals for the Ninth Circuit, filed on April 5, 2022. The briefing schedule in the Appellate Case states that: -- Appellants Angelica Clark, Garrison Davis, Robert Evans, Ellen Gass, Rowan Maher and Nathaniel West Mediation Questionnaire was due on April 12, 2022; -- Transcript shall be ordered by May 2, 2022; -- Transcript is due on May 31, 2022; -- Appellants Angelica Clark, Garrison Davis, Robert Evans, Ellen Gass, Rowan Maher and Nathaniel West opening brief is due on July 11, 2022; -- Appellees Russell E. Burger, Richard G. Cline, Allen Jones, Mark Morgan, Gabriel Russell and Andrew Smith answering brief is due on August 10, 2022; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants ANGELICA CLARK, ELLEN GASS, NATHANIEL WEST, ROWAN MAHER, ROBERT EVANS, and GARRISON DAVIS, individually and on behalf of all others similarly situated, are represented by: Michelle R. Burrows, Esq. MICHELLE R. BURROWS, PC 16869 SW 65th Avenue, Suite 367 Lake Oswego, OR 97035 Telephone: (503) 241-1955 E-mail: michelle.r.burrows@gmail.com - and - Nadia H. Dahab, Esq. SUGERMAN DAHAB 707 SW Washington Street, Suite 600 Portland, OR 97205 Telephone: (503) 228-6474 E-mail: nadia@sugermanlawoffice.com - and - Jane Leanne Moisan, Esq. PEOPLE'S LAW OFFICE 8629 N. Hodge Avenue Portland, OR 97203 Telephone: (971) 258-1292 E-mail: peopleslawproject@gmail.com - and - David Dean Park, Esq. ELLIOTT & PARK, PC 324 S Abernethy Street Portland, OR 97239 Telephone: (503) 227-1690 E-mail: dave@elliott-park.com - and - Joseph Piucci, Esq. PIUCCI LAW 900 SW 13th, Suite 200 Portland, OR 97205 Telephone: (503) 228-7385 E-mail: joe@piucci.com - and - David F. Sugerman, Esq. DAVID F. SUGERMAN ATTORNEY, PC 520 SW Sixth Ave. Portland, OR 97204 Telephone: (503) 228-6474 E-mail: david@davidsugerman.com Defendants-Appellees GABRIEL RUSSELL, ALLEN JONES, RUSSELL E. BURGER, ANDREW SMITH, MARK MORGAN, and RICHARD G. CLINE, are represented by: Glenn Greene, Esq. DOJ - U.S. DEPARTMENT OF JUSTICE P.O. Box 7146, Benjamin Franklin Station Washington, DC 20044-7146 Telephone: (202) 616-4143 E-mail: glenn.greene@usdoj.gov UNIVERSITY OF SAN DIEGO: Claims in Tuition and Fees Suit Trimmed ---------------------------------------------------------------- In the case, In re University of San Diego Tuition and Fees COVID-19 Refund Litigation. This document relates to: All actions, Case No. 20cv1946-LAB-WVG (S.D. Cal.), Judge Larry Alan Burns of the U.S. District Court for the Southern District of California granted in part and denied in part the Defendant's motion to dismiss. I. Background In February and March 2020, COVID-19 began spreading rapidly throughout the United States. Plaintiffs Edgar Chavarria, Catherine Holden, Haley Martinez, and Matthew Sheridan were enrolled for the Spring 2020 semester at the University of San Diego ("USD") when the ubiquitous and deleterious effects of the COVID-19 pandemic forced the University to cancel in-person classes. USD required that all classes be taught remotely for the rest of the semester and directed students living on campus to move out. Later, on July 29, 2020, with the pandemic still raging, USD cancelled all in-person classes for the Fall 2020 semester. By the Spring 2021 semester, USD planned to resurrect some in-person classes, only to shut these plans down again on Feb. 12, 2021, when the COVID pandemic again surged. The Plaintiffs allege that these changes drastically affected their educational experience: no in-person classes; fewer informal interactions with faculty and other students; no science laboratories; no computer labs; no in-person health services and counseling; and no athletic and recreational facilities. But at the time of each cancellation announcement, the Plaintiffs had already paid their tuition and fees and USD refused to offer tuition refunds, although the University agreed to refund some fees. In response, the Plaintiffs filed suit on behalf of themselves and a putative class. The Court consolidated the various individual actions into this one, and the Plaintiffs filed a Consolidated Class Action Complaint, asserting claims for breach of contract, unjust enrichment, conversion, violation of California's Consumer Legal Remedies Act ("CLRA"), and violation of California's Unfair Competition Law ("UCL"). USD then moved to dismiss the Consolidated Class Action Complaint ("CCAC"). II. Discussion A. The Educational Malpractice Doctrine Doesn't Apply to Plaintiffs' Claims The Plaintiffs allege that USD promised in-person instruction along with access to physical resources, libraries, laboratories, computer laboratories; they agreed to pay tuition and fees in reliance on those promises; and USD failed to refund any tuition or fees when it became clear that it wouldn't be able to fully perform. USD argues that California's educational malpractice doctrine bars each of the Plaintiffs' claims. Judge Burns disagrees. He finds that many decisions applying California's educational malpractice doctrine have held the doctrine does not bar claims that a university promised in-person instruction and access to physical resources and facilities but didn't provide them as a result of the COVID-19 pandemic. He agrees with these holdings and determines that the educational malpractice doctrine does not bar the Plaintiffs' claims. B. Plaintiffs Allege a Concrete and Particularized Injury USD argues next that the Plaintiffs lack Article III standing because they allege "uncertain and speculative" damages. At the pleading stage, a plaintiff "must clearly allege facts demonstrating" that he: (1) suffered an injury in fact; (2) that is fairly traceable to the challenged conduct; and (3) that is likely to be redressed by a favorable judicial decision. USD attacks the first element, arguing that the alleged injury isn't "concrete and particularized," but is instead "inherently speculative" because "the Court has no method to calculate the difference in value of a class offered online versus a class offered in person." Judge Burns finds that this argument misreads the standing requirements. A "concrete" injury must merely be "real" and need not be "tangible." And a "particularized" injury "must affect the plaintiff in a personal and individual way." At this stage of the litigation, the Plaintiffs don't need to provide a "just and reasonable damages model" -- that isn't required until the class certification stage. A plaintiff may satisfy the concrete and particularized harm standard by alleging that he overpaid in a transaction, then offering evidence of the difference between his payment and some measure of the true value of the purchase. The Plaintiffs have met that pleading hurdle: They allege that they paid for one package of educational services and received another of lesser value. This allegation suffices under the "actual and concrete economic injury" standard and qualifies as an injury-in-fact for standing purposes. C. The CCAC States a Claim for Breach of Contract Turning to the individual claims, USD argues that the Plaintiffs' breach of contract claim fails because: (1) the CCAC doesn't identify any specific breached promises; (2) USD's policy restricting refunds bars the claims; and (3) the Plaintiffs don't allege that USD caused any damages. Judge Burns disagrees with all three arguments. First, drawing all reasonable inferences in the Plaintiffs' favor, the CCAC alleges sufficient conduct to establish promises forming implied-in-fact terms of the parties' contract. Second, USD also fails to show that its refund policies bar the Plaintiffs' claims. Third, the CCAC successfully pleads that USD caused the Plaintiffs' injury. Hence, the CCAC successfully states a claim for breach of contract, so the Motion is denied as to that claim. D. Plaintiffs Fail to Allege a Quasi-Contract Claim for Restitution The Plaintiffs style their next claim as "unjust enrichment." Under California law, "'unjust enrichment' is synonymous with 'restitution,'" which is a remedy, not a claim. But this isn't a substantive issue warranting dismissal: Courts routinely construe claims pled as "unjust enrichment" to be actions in quasi-contract for restitution. Because the parties understand the nature of the claim, the way it is titled amounts to only a semantic issue. Judge Burns construes the claim as seeking restitution in quasi-contract. Bur he finds that the CCAC can't state such a claim. The parties agree that the Plaintiffs paid their tuition and fees pursuant to an agreement covering that compensation. If that agreement required USD to perform in ways that it didn't, the Plaintiffs' recourse is in contract. If the agreement didn't require USD to do those things, the Court can't augment the contract by finding that a second contract involving the same compensation was implied-in-law. The CCAC's claim for unjust enrichment is dismissed with prejudice. E. The CCAC Fails to State a Claim for Conversion The Plaintiffs likewise fail to state a claim for conversion. Successful conversion claims "typically involve those who have misappropriated, commingled, or misapplied specific funds held for the benefit of others." Judge Burns finds that that's not what the Plaintiffs allege. They allege that they paid USD money in exchange for services that were only partially rendered. The Plaintiffs can't point to a specific and identifiable sum that USD allegedly converted because, as they concede, USD provided some services with non-specific value in exchange for their tuition and fees. For this reason, the CCAC can't state a claim for conversion, so that claim is dismissed with prejudice. F. Plaintiffs Fail to State a Claim under CLRA Plaintiffs' fourth cause of action relies on the Consumer Legal Remedies Act, Cal. Civ. Code Sections 1750-1785. A pleading seeking to state a claim under the CLRA must meet the heightened standard of Rule 9(b) and allege violative conduct causing damage to the claimant. USD argues that the CCAC fails to allege any actionable misrepresentations. The Plaintiffs counter that two sets of alleged representations match the descriptions of Cal. Civ. Code Sections 1770(a)(5) and (7). One consists of the pre-pandemic representations that form the basis of the Plaintiffs' contract claim. But the Plaintiffs don't allege that USD knew that COVID-19 would render those representations false, nor do they contend that the representations were false at the time they were made. See Wilson, 668 F.3d at 1145. It isn't enough to allege that USD made promises it believed it could keep, but proved unable to, so those allegations can't support Plaintiffs' CLRA claim. The second set of representations includes USD's purported promises to conduct classes in person for the Spring 2021 semester. While the specific content of these statements isn't alleged, the Plaintiffs ask the Court to take judicial notice of them to satisfy Rule 9(b)'s heightened pleading standard. USD doesn't oppose this request, so Judge Burns grants it but nonetheless finds the statements insufficient to support the CLRA claim. Because the CCAC doesn't allege any "representations that USD's services had characteristics that they did not have or were of a particular, standard, quality, or grade but were another," it doesn't allege a violation of those sections of the CLRA. That claim is dismissed with prejudice. G. The CCAC Fails to State a UCL Claim USD last argues that Plaintiffs aren't entitled to any relief under California's Unfair Competition Law because they have failed to allege that USD engaged in an "unlawful, unfair, or fraudulent" act or practice. The UCL's "larger purpose" is "protecting the general public against unscrupulous business practices," and courts must construe it accordingly. Following this construction, Judge Burns holds that the CCAC doesn't allege any conduct that violates the UCL. The parties agree that the "unlawful" prong is fulfilled only if the CCAC states a claim under CLRA. Because it doesn't, the Plaintiffs haven't stated a UCL claim under the "unlawful" prong. Because Judge Burns already determined that USD's statements, as alleged, were neither unlawful nor fraudulent, he won't expand the meaning of those two terms by deeming the statements unfair. Hence, the CCAC doesn't allege any unlawful, unfair, or fraudulent acts or practices, so its UCL claim is dismissed with prejudice. III. Conclusion The motion to dismiss is granted in part. Judge Burns finds that the Plaintiffs' quasi-contract claim is barred by the existence of a contract covering the same subject matter; the economic loss doctrine bars their claim for conversion; they don't allege any false representations to support their CLRA claim; and they don't identify any unlawful, unfair, or fraudulent practice violating the UCL. The quasi-contract claim and the conversion claim are dismissed with prejudice. The CLRA and UCL claims are dismissed without prejudice. The CCAC properly states a claim for breach of contract, so as to that claim the Motion is denied in part. A full-text copy of the Court's March 30, 2022 Order is available at https://tinyurl.com/2p8z9znn from Leagle.com. VERTIV HOLDINGS: Vincent Wong Reminds of April 11 Deadline ---------------------------------------------------------- Attention Vertiv Holdings Co ("Vertiv") (NYSE: VRT) shareholders: The Law Offices of Vincent Wong on April 11 disclosed that a class action lawsuit has commenced on behalf of investors who purchased between April 28, 2021 and February 23, 2022. If you suffered a loss on your investment in Vertiv, contact us about potential recovery by using the link below. There is no cost or obligation to you. https://www.wongesq.com/pslra-1/vertiv-holdings-co-loss-submission-form?prid=25746&wire=4 ABOUT THE ACTION: The class action against Vertiv includes allegations that the Company made materially false and/or misleading statements and/or failed to disclose that: (1) the Company could not adequately respond to supply chain issues and inflation by increasing its prices; (2) as a result of the increasing costs, Vertiv's earnings would be adversely impacted; and (3) as a result of the foregoing, defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. DEADLINE: May 23, 2022 Aggrieved Vertiv investors only have until May 23, 2022 to request that the Court appoint you as lead plaintiff. You are not required to act as a lead plaintiff in order to share in any recovery. Vincent Wong, Esq. is an experienced attorney who has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Vincent Wong, Esq. 39 East Broadway Suite 304 New York, NY 10002 Tel. 212.425.1140 E-Mail: vw@wongesq.com [GN] VIATRIS INC: Judge Narrows Charges in EpiPen Price Hike Class Suit ------------------------------------------------------------------ Nicole DeFeudis, writing for Endpoints News, reports that second time's the charm for Viatris and a suite of pharmacy benefit managers in a proposed class-action lawsuit alleging collusion over price hikes for the company's EpiPen. After trying -- and succeeding, in part -- to get claims against them dismissed back in 2021, the defendants celebrated a win on April 5 when a Minnesota federal judge dismissed a large chunk of the claims due to a lack of evidence. The case stems back to a complaint filed in 2020 alleging that Mylan -- before it combined with Pfizer's Upjohn unit to form Viatris -- colluded with a range of PBMs including CVS Caremark, Express Scripts, United Health and OptumRx to spike the price of EpiPen list prices. Plaintiffs accused Mylan of paying bribes and kickbacks to PBMs, in return for favorable placement on formularies, and the elimination of price constraints. EpiPen list prices surged between 2012 and 2016, increasing from $240 to $609, according to court documents. PBMs are "the gatekeepers of which drugs will be covered by their health plan/insurer clients," the complaint states, and thus have influence over which drugs are prescribed and purchased. Plaintiffs argued that PBMs benefited from EpiPen's rising cost because the alleged kickbacks were generally calculated as a percentage of the wholesale price. The complaint was filed by Rochester Drug Co-Operative, on behalf of itself and other direct purchasers of EpiPen. "Plaintiffs, who paid the list price for EpiPens, were left to bear the burden of these steep price increases," they said in the complaint. Mylan argued that plaintiffs didn't plausibly allege that the behavior excluded competitors from the market, or was "outside industry norms such that other competitors [could not] compete in the same way." Judge Eric Tostrud dismissed some claims against the PBMs back in 2021 with prejudice, meaning plaintiffs can't refile the claim in the same court. However, he denied the Mylan defendants' motion to dismiss. On April 5, however, he narrowed the case even more, while postponing a decision on the timeliness of the antitrust claims. "Because Plaintiffs could save some aspects of their Sherman Act claims with evidence of continuing violations, a final decision on the timeliness of the antitrust claims will be postponed until such discovery can be taken," he wrote. A Viatris spokesperson said in an emailed statement to Endpoints News that the company will continue to fight the remaining claims: The Company is pleased with the Court's decision to significantly narrow the case and will continue to defend itself vigorously against the remaining claims. Just last month, a Kansas federal court signed off on a settlement that will see Viatris pay $264 million to resolve claims that it conspired with Pfizer to "monopolize the market" for its EpiPens. That case dates back to 2017 when plaintiffs filed a complaint alleging Viatris "devised an illegal scheme" to prevent EpiPen competitors from coming to market. Viatris has denied any wrongdoing but agreed to pay $264 million to resolve the cases pending in the US District Court for the District of Kansas. [GN] VOLTA INC: Hagens Berman Reminds of May 31 Deadline --------------------------------------------------- Hagens Berman urges Volta Inc. investors who suffered significant losses to submit your losses now. A securities fraud class action has been filed and investors with significant losses have the opportunity to lead the case. . Class Period: Aug. 2, 2021 - Mar. 28, 2022 Lead Plaintiff Deadline: May 31, 2022 Visit: www.hbsslaw.com/investor-fraud/VLTA Contact An Attorney Now: VLTA@hbsslaw.com 844-916-0895 Volta Inc. (VLTA) Securities Fraud Class Action: The lawsuit focuses on whether Volta properly followed accounting rules governing restricted stock unit ("RSU") compensation leading up to and after its consummation of the merger with special purpose acquisition company Tortois Acquisition Corp. II in late August 2021. The complaint alleges that Defendants made misleading statements or failed to disclose that: (1) Volta had improperly accounted for RSUs issued in connection with the business combination; (2) Volta understated its net loss for Q3 2021; (3) there were material weaknesses in Volta's internal controls over financial reporting resulting in material financial reporting errors; and, (4) as a result, Volta would be required to restate its previously filed financials. On Feb. 28, 2022, Volta announced the accounting date of RSUs should have been assessed at Aug. 26, 2021, about the same time as the merger, and that the adjustments would result in approximate net losses for the 3 and 9 months ended Sept. 30, 2021 of $14.5 million and $69.7 million, respectively. On Mar. 2, 2022, Volta said the adjustments would result in an increase in approximate net losses for the 3 and 9 months ended Sept. 30, 2021 to $69.7 million and $155.5 million, respectively. And, on Mar. 28, 2022, Volta announced that its CEO (Scott Mercer) and its President (Christopher Wendel) abruptly resigned. These events drove the price of Volta shares sharply lower. "We're focused on investors' losses and proving Volta intentionally understated compensation expenses before and after the Tortois merger," said Reed Kathrein, the Hagens Berman partner leading the investigation. If you invested in Volta and have significant losses, or have knowledge that may assist the firm's investigation, click here to discuss your legal rights with Hagens Berman. Whistleblowers: Persons with non-public information regarding Volta should consider their options to help in the investigation or take advantage of the SEC Whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 844-916-0895 or email VLTA@hbsslaw.com. About Hagens Berman Hagens Berman is a global plaintiffs' rights complex litigation law firm focusing on corporate accountability through class-action law. The firm is home to a robust securities litigation practice and represents investors as well as whistleblowers, workers, consumers and others in cases achieving real results for those harmed by corporate negligence and fraud. More about the firm and its successes can be found at hbsslaw.com. Contact: Reed Kathrein, 844-916-0895 [GN] WALMART INC: Rodriguez Sues Over Sale of Lidocaine Patch Products ----------------------------------------------------------------- Naomy Altagracia Gonzalez Rodriguez, individually and on behalf of all others similarly situated v. Walmart Inc., Case No. 1:22-cv-02991 (S.D.N.Y., April 11, 2022) seeks to remedy the deceptive and misleading business practices of Walmart with respect to the marketing and sale of the Defendant's various pain relief lidocaine patch products throughout the state of New York and throughout the country, including, but not limited to, the following products: -- Equate Maximum Strength Lidocaine Pain Relieving Patch; and -- Equate Lidocaine Menthol Pain Relief Patch. Lidocaine belongs to the family of medicines called local anesthetics. It prevents pain by blocking the signals at the nerve endings in the skin. Lidocaine patches are often prescribed by doctors, but the Defendant offers the Products over-the-counter to consumers. The Defendant manufactures, sells, and distributes the Products using a marketing and advertising campaign that represents that its lidocaine patches provide "pain relieving/pain relief," that is "maximum strength," through an "easy to apply," and "stay-put, flexible patch" that will last "up to 12 hours." The Defendant claims that the topical patches provide "pain relieving/pain relief," that is "maximum strength," through an "easy to apply," and "stay-put, flexible patch" that will last "up to 12 hours." However, Defendant's claims, representations, and warranties are allegedly false and misleading. Despite proper application, within a short time the Products commonly fall off of consumers' bodies, thus depriving consumers of the advertised benefits (i.e.- they don't provide "pain relieving/pain relief," that is "maximum strength," through an "easy to apply," and "stay-put, flexible patch" that will last "up to 12 hours" as promised). Moreover, Defendant labels some of the Products as providing a "maximum strength" dose despite these Products only containing 4% lidocaine. The Defendant's "maximum strength" claims are false and deceptive because there are other products available that offer lidocaine patches containing 5% lidocaine. The Defendant's conduct violated and continues to violate, inter alia, New York General Business Law sections 349 and 350, and the Magnuson-Moss Warranty Act. The Defendant breached and continues to breach its warranties regarding the Products. Defendant has been and continues to be unjustly enriched. Accordingly, Plaintiff brings this action against Defendant on behalf of herself and Class Members who purchased the Products during the applicable statute of limitations period. Lidocaine patches, akin to the Products, utilize lidocaine, an anesthetic, to cause loss of feeling in the skin and surrounding tissues to help alleviate pain in the applied bodily area.[BN] The Plaintiff is represented by: Jason P. Sultzer, Esq. Joseph Lipari, Esq. Daniel Markowitz, Esq. THE SULTZER LAW GROUP P.C. 270 Madison Avenue, Suite 1800 New York, NY 10016 Telephone: (845) 483-7100 Facsimile: (888) 749-7747 E-mail: sultzerj@thesultzerlawgroup.com liparij@thesultzerlawgroup.com markowitzd@thesultzerlawgroup.com WELLS FARGO: CFPB Files Amicus Brief in RESPA Class Action ---------------------------------------------------------- Maria Volkova, writing for Housing Wire, reports that the Consumer Financial Protection Bureau chimed in on an appeal to the McCoy vs. Wells Fargo Bank case, arguing that a borrower should be able to get information about their loan from their loan servicer. The CFPB filed its amicus brief on April 4, in a class action lawsuit before the Ninth Circuit Court of Appeals, alleging that Wells Fargo flouted its obligations to answer questions about two loans it serviced in 2020. The CFPB said the alleged oversight amounted to a failure to comply with the Real Estate Settlement Procedures Act (RESPA) and Regulation X, which the agency has jurisdiction over. According to the lawsuit, in 2018 and 2019 Wells Fargo declined to provide information to either borrower because both accounts were in active foreclosure ligation. Wells Fargo and the CFPB declined to comment. In a blog posted on the CFPB's website, Seth Frotman, general counsel for the bureau, argued that Wells Fargo's reasoning for not responding to the plaintiffs was not justified. "A pending lawsuit does not take away a borrower's right to a response from their loan servicer under Regulation X," Frotman wrote. "When this case got to court, Wells Fargo didn't even try to argue that it was entitled to ignore the borrowers' requests because of the foreclosure proceedings. "Instead, Wells Fargo argued that even after the CFPB's 2013 amendments, Regulation X didn't require it to respond to the borrowers' requests, which asked for things like transaction histories and the identities of their loans' owners." Additionally, Frotman wrote that Wells Fargo has misinterpreted CFPB's amendments to Regulation X, which requires servicers to provide information requested by borrowers. He said the depository is working under an outdated interpretation of the law. "But that's not what Regulation X says, that's not what the CFPB intended, and that's not what mortgage borrowers need in the modern mortgage market," Frotman said. RESPA, which was originally passed in 1975, and most recently amended in 2008, requires mortgage servicers to respond to borrowers seeking information about a mortgage loan within 10 business days. The CFPB amended the law's Regulation X rule in 2013 broadening servicers' obligations, requiring them to respond to requests for information even if it does not specifically relate to servicing. The class action suit was dismissed in September 2021 based on a failure to state a claim, but a month later the plaintiffs appealed the decision, sending it to the Ninth Circuit. In the class action lawsuit filed on Jan. 31, 2021, in the U.S. District Court of Oregon, the two plaintiffs alleged that Wells Fargo failed to comply with the RESPA and Regulation X by not providing information that plaintiffs sought. The lawsuit also claimed that after Wells Fargo received qualified written requests in the form of a notice of error, it did not investigate the errors as required by Regulation X. The two named plaintiffs, Donald McCoy and Maximiliano Olivera, said in the class action suit that they sent numerous request for information letters to Wells Fargo from 2018 to 2019 seeking information about their mortgage loans. The requests ranged from a payoff statement to contact information of the loan's assignee, court papers show. McCoy and Olivera claim they did not receive the information that they asked for. Eight months later, on Sept. 28, 2021, the court dismissed the case because the plaintiffs failed to state a claim for relief and that their inquiries were not related to servicing, but instead pertained to the validity and origination of their respective loans. In December 2021, oral arguments were held to appeal the decision. The case could impact the basis for determining the CFPB's authority, as well as the interpretation of regulatory language, according to Richard Horn, partner at Garris Horn LLP. Horn is currently involved in litigation against the CFPB which will test the agency's interpretation of another statute, and its authority to police redlining. In the Wells Fargo case, Horn said that although the CFPB expanded the scope of qualified written statements in its 2013 servicing rule to include requests for information, the court disagreed. "There is confusion about this requirement, in part because the regulatory text is not the clearest about whether requests for information include qualified written requests, or if qualified written requests include requests for information," he said. He noted that from the CFPB's amicus brief it becomes clear that the bureau intended to expand the scope of qualified written requests. The CFPB has been outspoken in the past year about heightened scrutiny of servicers. So far, however, there has been little public enforcement action. Most recently, the CFPB warned that it is closely monitoring how servicers conduct themselves to help borrowers avoid foreclosures. In January 2021, the bureau put the industry on alert, warning that it would direct its attention to how mortgage servicers were helping borrowers with COVID-19 forbearance. At the time, the bureau promised aggressive action. Soon after, it told servicers that "unprepared was unacceptable," as the end of forbearance approached. "Instead of a direct relationship between banks and their customers, the modern mortgage market is a complex web that often also involves securitized trusts and multiple servicers," wrote Frotman in the blog post. "People need a banking system that provides high-quality customer service, and banks should focus on relationship banking by treating customers fairly and attending to their needs." [GN] WELLS FARGO: Transfer of Forsburg Suit to N.D. California Denied ---------------------------------------------------------------- Judge Michael F. Urbanski of the U.S. District Court for the Western District of Virginia, Harrisonburg Division, refused to transfer the case, GERALD FORSBURG, et al., Plaintiffs v. WELLS FARGO & CO., et al., Defendants, Case No. 5:20-cv-00046 (W.D. Va.), to the U.S. District Court for the Northern District of California. I. Background The matter is before the Court on a motion filed by Forsburg and other named Plaintiffs in the proposed class action, to transfer the case to the Northern District of California. Defendants Wells Fargo & Co. and Wells Fargo Bank, N.A. (collectively "Wells Fargo"), oppose transfer. Pending before the Court are two related, yet different, putative class action cases. The cases are related in that they arise from actions allegedly taken by Wells Fargo to place mortgage loan accounts into forbearance status at the outset of the COVID-19 pandemic. The Harlow adversary proceeding, No. AP 20-07028, filed in the bankruptcy court in the district on June 26, 2020, alleges a pattern of racketeering activity by the "Wells Fargo Enterprise," defamation, and other claims associated with the bankruptcy process. The Harlow case seeks class certification of a class comprised of Chapter 13 debtors who have been subject to false forbearance notices filed in their Chapter 13 bankruptcy cases. Two of the named plaintiffs in the Harlow case are Virginia residents, one resides in North Carolina and one in Texas. None are from California. The Forsburg case, filed in the district court on July 23, 2020, makes widespread claims against Wells Fargo stemming from the issuance of forbearance notices, including RICO, fraud, conspiracy, gross negligence, defamation, and various statutory claims. The Forsburg case does not include claims related to the bankruptcy process and seeks certification of a class including persons not involved in bankruptcy proceedings. The original complaint named only Gerald Forsburg as Plaintiff. The complaint alleged that Forsburg owns property in Virginia. The Forsburg complaint has been amended twice, and each time new named plaintiffs were added. On Sept. 1, 2020, Jenna Doctor, a resident of Florida, and Luis and Marisol Castro, residents of Texas, were added. On Sept. 25, 2020, Barbara Prado, a resident of California, was added. In 2020, Wells Fargo asked the Court to withdraw the reference of the Harlow case to the bankruptcy court and consolidate it with Forsburg. The Court granted that motion on Jan. 6, 2021, and immediately thereafter, on Jan. 8, 2021, the Forsburg Plaintiffs moved to transfer the case to the Northern District of California. After the matter was briefed, the parties asked to Court to stay the proceeding to facilitate mediation. The stay was extended at the request of the parties, and it ultimately was lifted on Oct. 5, 2021. Additional briefs were filed and oral argument was held on the motion to transfer and motion to dismiss on Dec. 16, 2021. As explained at the hearing and in briefing, the Harlow and Forsburg cases are but two of several putative class action cases filed regarding Wells Fargo forbearance practices. At the time of the motions hearing, there were two pending class action cases in the Northern District of California and two in the Southern District of California also seeking relief against Wells Fargo for allegedly placing its mortgage loan accounts into forbearance without consent. The cases filed in the Northern District of California are Green, et al. v. Wells Fargo Bank & Co., et al., No. 3:20-cv-5296 (N.D. Cal., filed July 31, 2020), and Delpapa, et al. v. Wells Fargo Bank, NA., et al., No. 3:20-cv-6009-JD (N.D. Cal., filed Aug. 26, 2020). The two cases filed in the Southern District of California are Urista v. Wells Fargo & Co., et al., No. 20-cv-1689-H-AHG (S.D. Cal., filed Aug. 29, 2020), and Healy, et al. v. Wells Fargo Bank, N.A., et al., No. 3:20-cv-1838-H-AHG (S.D. Cal., filed Sept. 18, 2020). Early on, Wells Fargo sought to transfer the California cases to the Western District of Virginia so they could all be decided with the earlier filed Harlow and Forsburg cases, but the California courts declined to transfer those cases to Virginia. A docket text order was entered in Delpapa, and written orders were entered in Healy and Urista. Subsequently, the counsel for the plaintiffs in Healy, Urista, Green, Delpapa, and Forsburg entered into a joint prosecution agreement and agreed to seek consolidation of those five cases in a single matter pending in the Northern District of California. At the time of the hearing on the motion for transfer, the Healy and Urista plaintiffs had filed motions to transfer those cases from the Southern District of California to the Northern District of California to consolidate them with the Delpapa case. Since then, both Urista and Healy have been transferred to the Northern District of California. Additionally, the Northern District of California granted the plaintiffs' motion to relate Urista and Healy with Delpapa, so all four cases will now be heard by the same district judge. After the filing of the motion to transfer, an additional case was filed in the Western District of Washington, seeking the same relief against Wells Fargo for its alleged practice of placing consumers' loans into forbearance without consent. The latest case is Echard, et. al v. Wells Fargo Bank, N.A., No. C21-0111-JCC) (W.D. Wash., filed Jan. 28, 2021). Echard involves an Ohio resident and Ohio property, and was briefly transferred to the Northern District of California before moving on to the Southern District of Ohio. II. Discussion A. General Personal Jurisdiction The parties disagree as to whether one of the two Wells Fargo entities sued in this case is subject to general personal jurisdiction in the Northern District of California. The parties agree that the holding company, Wells Fargo & Co., is based in San Francisco and is subject to general personal jurisdiction there. But Wells Fargo contends that Wells Fargo Bank, N.A., a national banking association having its main office in South Dakota, is only subject to general personal jurisdiction in South Dakota. Construing the jurisdictional allegations in the second amended complaint and the assertions in the motion to transfer briefing in the light most favorable to the Plaintiffs as required by Fourth Circuit precedent, Judge Urbanski is unable to conclude that the Forsburg Plaintiffs have sufficiently made a prima facie showing of general personal jurisdiction over Wells Fargo Bank in the Northern District of California. While the facts alleged and the record in the cases cited in Urista and Healy were sufficient to convince those courts that Wells Fargo Bank's principal place of business was in San Francisco, insufficient facts are alleged and otherwise adduced in the case. As such, Judge Urbanski will deny without prejudice Forsburg's motion to transfer the case to the Northern District of California. He will grant the Forsburg Plaintiffs leave ofCcourt to file a Third Amended Complaint within 14 days, and will allow the parties to engage in an expedited period of jurisdictional discovery for 60 days. Should the Forsburg Plaintiffs renew their motion to transfer, the Court will conduct an evidentiary hearing on the issue as to whether Wells Fargo Bank is subject to personal jurisdiction in the Northern District of California. The counsel is directed to confer and schedule an evidentiary hearing no later than in June or July, 2022. B. Section 1404(a) While the question of general personal jurisdiction remains open pending filing of the third amended complaint and completion of jurisdictional discovery, Judge Urbanski concludes that the Section 1404(a) factors support transfer of the case. The Plaintiffs argue that the convenience of the parties, including convenience to Wells Fargo in not having to litigate similar, almost identical claims, on both the east and west coasts at the same time, justifies transfer to the Northern District of California. They point out that when Wells Fargo sought to have Delpapa transferred to this district, it acknowledged that "the parties are substantially similar, the issues are substantially similar," and asserted that allowing separate cases to proceed would oppose the interest of justice and convenience. Wells Fargo argues that witness convenience disfavors transfer because "the moving party must make a specific showing" that the current venue is inconvenient to the witnesses to demonstrate that transfer is proper. It claims that if the moving party fails to identify witnesses, the convenience of the witnesses disfavors transfer. It also contends that because each of the 15 party witnesses Wells Fargo has identified do not live in the Northern District of California, that district would be inconvenient for them. Judge Urbanski holds that the convenience of the parties and witnesses clearly favors transfer in the case since each pending case would likely have some or all of the same witnesses, and transfer would prevent these witnesses from having to travel back and forth across the country to testify in multiple courts. Importantly, while one of the Forsburg plaintiffs, Barbara Prado, lives in the Northern District of California, none live in the Western District of Virginia. The interests of justice favor transfer because it would allow five of the six pending putative class action cases to be considered together by the same district judge. While the relative case loads in the Northern District of California and the Western District of Virginia support retaining Forsburg, that statistical advantage is more than offset by the manifest inefficiency in having competing class actions pending in California and Virginia addressing the same issues. C. Jurisdiction Retension Forsburg was previously consolidated with a related case, Harlow, et. al v. Wells Fargo & Co., et. al., Adversary No. 20-07028. Jurisdiction over the Harlow case was withdrawn from bankruptcy court largely because of Count I, alleging a class-wide RICO claim. However, Harlow also involves a number of bankruptcy-specific issues not present in Forsburg or the cases pending in the Northern District of California. Further, the Plaintiffs in Harlow ask the Court to certify a different class involving Chapter 13 debtors. The differences in the claims alleged and the proposed class in Harlow render negligible the judicial efficiencies to be gained by transferring it to California. Further, while none of the Forsburg Plaintiffs live in the Western District of Virginia, two of the Harlow plaintiffs, Troy Harlow and Mark Estes, are residents of the Western District of Virginia, making it more inconvenient for them to have their case litigated in California. Likewise, none of the Harlow Plaintiffs are California residents. Accordingly, the Court will retain the Harlow case on the docket of the Western District of Virginia. III. Conclusion Judge Urbanski opines that although there are four other identical proposed class actions against Wells Fargo pending in the Northern District of California, the Plaintiffs' allegations are insufficient at this stage to allow the Court to conclude that they have met their burden of making a prima facie showing of general personal jurisdiction over Wells Fargo Bank in the Northern District of California. At the same time, however, Judge Urbanski concludes that the convenience of the parties and the interests of justice would compel a transfer of the Forsburg case to the Northern District of California should a sufficient prima facie showing of general personal jurisdiction be established. As such, Judge Urbanski denied without prejudice the Plaintiffs' motion to transfer the Forsburg case to the Northern District of California. He granted the Plaintiffs in the Forsburg case leave of court to file a Third Amended Complaint containing personal jurisdiction allegations concerning Wells Fargo Bank within 14 days. Because the Court is granting the Forsburg Plaintiffs leave to amend, the pending motion to dismiss the second amended complaint in the Forsburg case is denied as moot without prejudice. The parties will be permitted to conduct expedited jurisdictional discovery for a period of 60 days. Judge Urbanski directed the parties to confer and schedule an evidentiary hearing on the issue of whether Wells Fargo Bank is subject to personal jurisdiction in the Northern District of California immediately following the expedited jurisdictional discovery period, and no later than in June or July 2022. Judge Urbanski denied the Plaintiffs motion to transfer the Harlow case to the Northern District of California. A full-text copy of the Court's March 30, 2022 Memorandum Opinion is available at https://tinyurl.com/2p88zytc from Leagle.com. WHOLE FOODS: Court Dismisses Akridge's 1st Amended Class Complaint ------------------------------------------------------------------ In the case, HOWARD AKRIDGE, individually and on behalf of all others similarly situated, Plaintiff v. WHOLE FOODS MARKET GROUP, INC., Defendant, Case No. 20 Civ. 10900 (ER) (S.D.N.Y.), Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York granted Whole Foods' motion to dismiss the first amended complaint. I. Background Mr. Akridge brings the putative class action under the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. Section 1332(d)(2), against Whole Foods, alleging that Whole Foods has engaged in a pattern of mislabeling certain prepared foods and thereby failing to identify the presence of allergens. Akridge seeks injunctive relief and monetary damages for violations of Sections 349 and 350 of the New York General Business Law ("GBL"), as well as related claims for negligent misrepresentation, fraud, breach of warranty, and unjust enrichment. Whole Foods operates nearly 500 stores across North America that sell natural and organic foods, including a range of products in the prepared foods sections of its stores and fresh packaged goods sold under its 365 Everyday Value Brand. These products include soups, cheeses, bakery products, fish, and prepared entrees. The U.S. Food and Drug Administration issued Whole Foods CEO John Mackey a warning letter on December 16, 2020, as part of the agency's "ongoing efforts to address undeclared allergens as the leading cause of food recalls in the United States." The FDA Warning Letter explains that Whole Foods has "engaged in a pattern of receiving and offering for sale misbranded food products," and that from October 2019 to November 2020, the company "recalled 32 food products due to undeclared allergen(s)." Whole Foods had a similar pattern of recalling foods that contained undeclared allergens in previous years. he FDA Warning Letter further states that the products at issue were misbranded within the meaning of Section 403(w) of the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. Section 301 et seq., and were therefore in violation of the FDCA's requirement that finished product labels declare all major food allergens present in the products. Federal and state regulations require that the presence of common allergens in foods, including milk, eggs, fish, crustacean shellfish, tree nuts, wheat, peanuts, and soybeans, be disclosed immediately after the ingredient list, preceded by the word "Contains." Akridge alleges that Whole Foods has a longstanding pattern of violating these requirements and failing to properly disclose the presence of allergens in prepared foods and certain packaged goods sold under its private label brand. Akridge alleges that Whole Foods' recalls "have been characterized as 'systemic.'" He further alleges that the mislabeling is not unique to any particular Whole Foods store or region, and that Whole Foods has reportedly failed to update its computer labeling software, leading to the mislabeling. Had Mr. Akridge and the putative class members known about Whole Foods' practices, they would not have bought as much, or any, of the prepared foods and would either have paid less for the products or would not have bought them at all, because they would not have paid higher prices for products that fail to disclose the presence of allergens. Akridge is "reluctant to continue his purchases from Whole Foods' prepared foods sections because he does not want to take a chance that the company has failed to modify its practices," but once Whole Foods rectifies those practices, he "will no longer feel reluctant" to purchase such products. Mr. Akridge intends to seek injunctive relief under Rule 23(b) on behalf of a proposed class of all purchasers of the products in New York during the applicable statutes of limitations. Mr. Akridge brought the action on Dec. 23, 2020. On July 1, 2021, after Whole Foods requested a pre-motion conference to bring a motion to dismiss, Akridge filed the First Amended Complaint ("FAC"). On Aug. 26, 2021, Whole Foods moved to dismiss the FAC, or in the alternative, for a more definite statement. II. Discussion A. Article III Standing To establish standing under Article III of the Constitution, a plaintiff must show "(1) that he or she suffered an injury in fact that is concrete, particularized, and actual or imminent, (2) that the injury was caused by the defendant, and (3) that the injury would likely be redressed by the requested judicial relief." Moreover, in a putative class action, the named plaintiff must allege that he was personally injured by defendants' conduct. To establish class standing, a plaintiff must show that (1) "he 'personally has suffered some actual injury as a result of the putatively illegal conduct of the defendant,' and (2) such conduct implicates 'the same set of concerns' as the conduct alleged to have caused injury to other members of the putative class by the same defendants." Whole Foods challenges whether Akridge has established Article III standing because the FAC does not allege facts plausibly demonstrating that he actually purchased any of the products that were the subject of the FDA Warning Letter or that allegedly failed to disclose allergens. Thus, it mounts a facial challenge, based on the allegations of the complaint, to the Court's subject matter jurisdiction. Judge Ramos determines that Akridge's FAC must be dismissed for lack of standing because he has not alleged an injury in fact. Akridge, does not specifically allege that he actually purchased products containing unidentified allergens. Class action cases in this Circuit involving other consumer products brought by plaintiffs who purchased some, but not all, of the products they challenge are also instructive, although these decisions turn on class standing rather than Article III standing. Fundamental to all of those decisions was that the plaintiff seeking to bring a class action had actually alleged that they had purchased at least one of the products challenged as falsely advertised. Akridge's claims therefore fail to clear the low threshold required to establish an injury in fact and do not even constitute "general factual allegations of injury." Because he concludes that Akridge has not plausibly alleged standing, Judge Ramos holds that the Court lacks jurisdiction to consider Whole Foods' Rule 12(b)(6) motion on the merits. Nor does he reach Whole Foods' 12(e) motion for a more definite statement. B. Leave to Amend Rule 15(a) of the Federal Rules of Civil Procedure provides that the court should grant leave to amend "freely when justice so requires." The Second Circuit has noted that the rule is "applicable to dismissals for failure to plead an adequate basis for federal jurisdiction," and courts should grant leave to amend at least once as matter of course "where the possibility exists that the defect can be cured and there is no prejudice to the defendant." Because it is possible that Akridge may be able to establish standing, Judge Ramos grants him leave to amend. III. Conclusion For the reasons he discussed, Judge Ramos granted Whole Foods' motion to dismiss. Akridge may file any amended complaint by April 20, 2022. If he does not, the case will be closed. The Clerk of Court is respectfully directed to terminate the motion, Doc. 22. A full-text copy of the Court's March 30, 2022 Opinion & Order is available at https://tinyurl.com/2s44dcap from Leagle.com. WILLIAM OSLER: Certification of Privacy Breach Action Overturned ---------------------------------------------------------------- Joannie Fu, Esq., and Kevan Hanowski, Esq., of McCarthy Tetrault LLP, in an article for Mondaq, report that for nearly a decade, a nurse repeatedly viewed healthcare records of patients in order to steal prescription medication from a hospital. The access to the patient records was fleeting -- the nurse was interested in the medication, not the information, and spent no more than a few seconds on any particular patient's page. Over time, she accessed more than 11,000 records and stole nearly 25,000 Percocet pills. Do such facts permit the certification of a class action for the recently recognized tort of intrusion upon seclusion? In a Stewart v. Demme, 2022 ONSC 1790, the Ontario Superior Court of Justice (Divisional Court) said that they do not. Rather, the court concluded that it was plain and obvious that these facts did not -- and could not -- amount to the tort of intrusion upon seclusion, because the nature of the intrusion was not sufficiently serious. As we have previously reported, Ontario courts have not been afraid to strike down putative class actions for intrusion upon seclusion where the claims do not involve the type of intentional and highly offensive conduct described by the Court of Appeal in Jones v. Tsige, 2012 ONCA 32 ("Jones"). Stewart is yet another example of Ontario courts taking a cautious and restrained approach to this new privacy tort in the class action context. This decision may also provide guidance to Canadian courts considering statutory privacy claims. For example, the British Columbia Privacy Act, RSBC 1996, c 37 creates a statutory tort for breach of privacy that bears many analogs to the common law tort, including because it is actionable without proof of damage. Background In Jones, Ontario Court of Appeal established a limited and specific tort of "intrusion upon seclusion". The elements of the tort are as follows: (1) the defendant's conduct must be intentional (which includes recklessness); (2) the defendant must have invaded, without lawful justification, the plaintiff's private affairs; and (3) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. We discussed this decision in detail in a previous article, found here. Certification Decision (2020 ONSC 83) Justice Morgan certified Ms. Stewart's claim for intrusion upon seclusion. In reaching this decision, he concluded that, despite the fleeting nature of the defendant's access to patient files, it was not plain and obvious that a claim for intrusion upon seclusion would fail. In particular, he concluded that it was the nature of the privacy interest -- and not the magnitude of the infringement -- that is relevant when determining whether a reasonable person would regard the invasion as "highly offensive". In particular, he found that any intrusion into the realm of private health information could be considered "highly offensive". Divisional Court (2022 ONSC 1790) The Divisional Court overturned Justice Morgan's decision and dismissed the plaintiff's certification motion. Key aspects of the Divisional Court's decision include the following: The Divisional Court disagreed with the certification judge's conclusion that any intrusion into private health records, no matter how small, may be considered highly offensive. When determining whether an intrusion is "highly offensive", the court must view the conduct objectively having regard to all of the circumstances. Here, those circumstances involved the brief exposure of patient data that was not particularly sensitive. If a reasonable person would not view the intrusion as "causing distress, humiliation or anguish", then it does not rise to the requisite level of severity to ground a claim for intrusion upon seclusion. The significance of the intrusion must be assessed individually, not collectively: "The fact that there were over 11,000 such intrusions does not mean that each intrusion was significant and highly offensive." This interpretation of the Jones framework is particularly significant in the class action context, which has seen a trend of plaintiffs attempting to certify class actions for minor breaches of privacy that occurred in relation to a large class of persons. The fact that intrusion upon seclusion is actionable without proof of damage heightens the threshold that courts should apply when considering its availability. Only "deliberate and significant" intrusions may give rise to this tort: [27] . . . To find otherwise would be to "open the floodgates" to claims such as the one at issue in this proceeding, where the intrusions were fleeting, the information accessed was not particularly sensitive within the realm of health information, the intruder was not "after" the information itself, which was otherwise available to her and/or a number of other hospital staff, and there was no discernible effect on the patients. [GN] WITHERSPOON URBAN: Professor in Tenant Suit to Face Eviction ------------------------------------------------------------ nj.com reports that a Princeton University emeritus history professor who filed a class action lawsuit on behalf of himself and 40 other tenants in an apartment building for "unlawful living conditions" last fall is now facing eviction, his attorney and son said. Arno Mayer, 95, who lives in an apartment in Witherspoon House, on 55 Witherspoon St. in Princeton, filed the lawsuit against Witherspoon Urban Renewal Associates, LLC; Callaway Henderson/Sotheby's International Realty, LLC; and John Does 1-10 in September of 2021. In the lawsuit, Mayer alleges: an ongoing rodent infestation; multiple evacuations for elderly tenants due to fire code violations in the building's restaurants; a defective intercom system; refusal to issue COVID relief to tenants; and prior violations of the township's noise ordinance that the landlord pled guilty to. Mayer and his son held a news conference to discuss the lawsuit's contents. He is not currently teaching, his son said. Represented by his son Carl Mayer, an attorney and former member of the township committee, Arno Mayer is asking for monetary damages and injunctive relief. Carl Mayer said his father's landlord, Jack Morrison, started eviction proceedings against his father at the end of February and sent out a notice of eviction two days ago. "It's a matter of life and death for my father," Mayer said, noting his father is disabled and a World War II veteran. "He's still there now. But the landlord is trying everything he can to have him thrown out on the street where he can't survive because he needs 24/7 health aides." Morrison did not respond to NJ Advance Media for a request for comment. Robert Casey, the attorney at Lenox Law Firm representing Morrison, also didn't respond to a request for comment. Arno Mayer, who lives on a university pension and whose finances are subsidized by his son, typically pays $3,875 in rent per month, but has withheld rent payments since March 2020, Carl Mayer said. The apartments at 55 Witherspoon St. are luxury residential apartments, according to its website. Also in the building are two restaurants, Witherspoon Grill and Kristine's, that are owned by Morrison, Carl Mayer said, which he believes contributes to the rodent issues. Mayer called on state officials, the Mercer County Prosecutor's Office, and other local authorities to investigate Morrison and halt the eviction. "Every time there's a choice between a commercial property for the landlord and his tenants, (Morrison) chooses commercial priority," Mayer said, "which is a very un-Princeton thing to do, which is why we're in court." [GN] [*] BakerHostetler Sees Increase in Duplicative Data Breach Suits ----------------------------------------------------------------- Jill McKeon, writing for HealthITSecurity, reports that as healthcare data breaches continue to impact small and large organizations across the country, accompanying data breach lawsuits are becoming increasingly common. Law firm BakerHostetler's latest data security incident report showed an increase in duplicative lawsuits, often resulting in steep defense and settlement costs. BakerHostetler analyzed more than 1,200 data security incidents from 2021 that its Digital Assets and Data Management Practice Group members helped clients manage. The incidents spanned a variety of sectors, but the results showed that healthcare was the most impacted industry, with 23 percent of the analyzed incidents affecting the sector. The report revealed that 23 of the incidents resulted in one or more lawsuits. While this may not seem like a big number, over 58 lawsuits stemmed from those 23 incidents. "Previously, there was always a risk of multidistrict litigation following large data incidents. However, now we are seeing multiple lawsuits following an incident notification in the same federal forum. Or, in the alternative, we see a handful of cases in one federal forum and another handful of cases in a state venue," the report noted. "This duplicative litigation trend is increasing the 'race to the courthouse' filings and increasing the initial litigation defense costs and the ultimate cost of settlement, due to the number of plaintiffs' attorneys involved." What's more, 43 of the more than 58 lawsuits were filed against healthcare organizations specifically. As recent cases have shown, it is difficult to succeed in healthcare data breach lawsuits from a plaintiff's perspective. This is partly thanks to Ramirez v. TransUnion, in which the Supreme Court ruled that data breach victims must demonstrate actual injury and prove that the defendant's conduct caused the damage. The June 2021 ruling signified a significant shift in how data breaches are handled in court. Plaintiffs must now prove that they suffered a concrete injury to claim Article III standing. For example, in February 2022, a judge recommended the dismissal of a class-action lawsuit against medical management company Practicefirst, citing insufficient evidence of actual harm resulting from a December 2020 breach. "Over the past decade, there have been very few published class certification rulings following data incidents, but the majority that existed were favorable to the defense," BakerHostetler noted. "However, 2020 and 2021 brought two critical class certification rulings that are emboldening plaintiffs' firms, in both the number of their litigation filings and their negotiation tactics during mediations." The class certification rulings, In re Brinker Data Incident Litig. and Fero v. Excellus Health Plan, Inc., brought new arguments to the surface. In Brinker, the defendant reasoned that the plaintiffs, whose payment card information had been breached, could not prove causation because at least one of them was impacted by a previous breach. The court ruled that the "multiple breach issue" did not disqualify causation. "We predict that this same reasoning will not be applied to non-payment card cases, but its holding will need to be considered in any litigation strategy, as long as it remains good law," the report stated. In Fero v. Excellus Health Plan, Inc., the court "certified an injunctive relief-only class but denied certification of all damages," the report explained. "Ultimately, certification of only injunctive claims can be a hollow victory for plaintiffs because it eliminates the possibility of a large monetary judgment and because most defendants who have suffered a data breach will have made significant changes to their data security posture by the time the case gets to trial." Interestingly, smaller data breaches resulted in more lawsuits than larger ones. BakerHostetler found that 8 of the 23 lawsuits resulted from data breaches that impacted more than 1.2 million individuals, while 11 lawsuits resulted from breaches that impacted less than 700,000 individuals. In addition to litigation insights, the report noted that 37 percent of the 2021 incidents could be attributed to ransomware, compared to 27 percent in 2020. The firm also observed hackers using double or triple extortion tactics to increase pressure on victims. "A key difference between organizations that had meaningful ransomware events and those that did not was the use of a fully deployed endpoint detection and response tool that was set in enforcement mode with the anti-uninstall feature enabled," Craig Hoffman, co-leader of BakerHostetler's national digital risk advisory and cybersecurity team, said in a press release. "Organizations that were affected by a ransomware attack in 2021 were more likely to have effective backups to restore from. Ransomware attacks are not going away. In addition to an EDR tool and a robust business continuity plan, effective measures to combat this risk include multi-factor authentication, effective patch management and addressing remote desktop protocol. These measures apply to both the organization and its vendors." [GN] [*] Legislation Not Required to Level Meat Packing Playing Field ---------------------------------------------------------------- Real Agriculture reports that the cattle value chain has undergone significant pressure both to the upside and down since 2019. A major fire at a plant in the U.S. caused a backlog of processing. Soon after, COVID-19 hit. During 2020 and 2021, demand both at home and abroad skyrocketed. In short, for an industry that has to plan for 3-plus-year cycles, ranchers, feeders, and processors have all had to endure swings in prices and volatility. These conditions have also meant that there have been some mighty fine margins in some circumstances, but not necessarily equitably along the chain. In the U.S., there is legislation in the works to dictate a certain amount of cash trade to inject some transparency into the market. Even a Canadian senator has an opinion on the state of the processing value chain, and suggests something needs to be done to level the playing field. There are also class action lawsuits underway in the U.S. and just beginning in Canada, levelling charges of wrong-doing at meat packing companies. Kevin Grier of Kevin Grier Market Analysis doesn't agree with the angle of the lawsuits or that legislation is required to "fix" what isn't broken. As he lays out in the audio below, market factors already guide the cattle market -- and that if retail demand weren't so strong even at high prices, we wouldn't even be having this discussion. For example, just a few years ago, there was a large number of cattle but packing capacity had been reduced. Why? Because packers had been losing their shirts. Now, the cattle cycle is turning as the number of cows is declining in both United States and in Canada. That means that market leverage will be shifting more and more towards the cattle feeder in the coming years, a function of an open market. Grier adds that the U.S. pushing for added capacity could end up coming on line at exactly the wrong time -- further skewing the market balance. [GN] [*] Price Fixing Class Action Among Food Price Inflation Factors ---------------------------------------------------------------- Anthony Winson, writing for The Globe and Mail, reports that Canadian consumers have become increasingly alarmed by dramatic price increases in a variety of products they purchase for their weekly food basket. Economic analysts and professional economists have explained away this food inflation as a consequence of supply chain issues and surging consumer demand. But the recent application by a Quebec consumer group to pursue a class action lawsuit for alleged price fixing against the foreign beef processors that dominate the Canadian industry points to a more powerful explanation of food price inflation: market power derived from food industry concentration. And it's not just the beef industry, where Cargill, Tyson, JBS and the National Beef Packing Company control an estimated 85 per cent of the packing capacity. In 2019 a class action lawsuit against the largest bread makers and grocery retailers was launched, with George Weston Ltd., parent of Loblaw and the bakery Weston Foods (which has since been sold), admitting a price-fixing scheme was in place. The Canada Bread Company, Metro, Walmart, Sobeys and Giant Tiger were also mentioned in the suit that claimed consumers were overbilled $5-billion over 16 years. Those companies have denied participating in the alleged scheme. Most other major Canadian food sectors are also dominated by a very few industry giants with global operations and considerable ability to influence food prices, including dairy (Kraft, Agropur, Lactalis and Saputo), chicken (Maple Leaf, Maple Lodge, Olymel, Lilydale and Exceldor) and pork processing (Maple Leaf, Olymel and Charoen Pokphand Foods). Where farmers have not managed to gain supply management that can counter processor market power, they have very limited ability to influence the prices they receive from processors. In the United States, a September, 2021, report on the meat packing industry consolidation in recent decades released by the Biden administration states that "record profits, income, and margins underscore the role that meat-processors' dominant market position and power play in increasing meat prices." And this is in a country with less industry concentration in the food sector than in Canada. Add to this the fact that the food retail sector, overwhelmingly dominated by supermarket chain-store corporations, is among the most highly concentrated in the Western world with only five companies (Loblaw, Sobeys, Metro, Costco and Walmart) controlling over 60 percent of retail food sales. Recent moves by the big three supermarket chains to cut their employees' pandemic-related pay bonuses all within a day of each other prompted the House of Commons industry committee to hold hearings on the issue. Its subsequent 2021 report called for a change in Canada's competition laws to prohibit cartel-like practices that could result in wage-fixing deals in the supermarket sector. Notably, the Government's Commissioner of Competition, Matthew Boswell, told the committee that the Competition Bureau lacked the powers to convict corporations around wage-fixing practices, and that the Bureau is "one of the least-funded competition enforcement agencies" in the developed world and has had its budget and personnel reduced in recent years. Supply chain issues and spikes in consumer demand may play a temporary, if limited, role in food inflation, but the fundamental cause that is never addressed is the remarkable degree to which the Canadian food industry has fallen into a few corporate hands. And while in 2021 south of the border the Biden White House proclaimed it was "taking bold action to enforce the antitrust laws, boost competition in meat-processing, and push back on pandemic profiteering that is hurting consumers, farmers, and ranchers across the country," in Canada the federal government lacks the will and the Competition Bureau lacks the teeth to pursue similar objectives. Canada's failure to deal with food industry concentration is nothing new, and can be dated back at least as far as the Great Depression. At that time, the historically significant 1937 Royal Commission on Price Spreads argued that, with respect to the meat-packing industry's ability to protect its profits in the context of the economic depression, "the manner in which these results have been achieved has a direct relation to the monopolistic character of the structure of the industry." Too much concentration of the food supply by processors and retailers to the detriment of consumers and producers is hardly anything new, then. Until competition laws and government priorities are changed, consumers may only have recourse to class-action lawsuits to address this pressing issue. [GN] [*] U.S. Tech Workers Collective Actions Tripled Since 2019 ----------------------------------------------------------- Eric Griffith, writing for PCMag, reports that from coffee shops to newsrooms and well beyond, the US seems to be entering another heyday for organized labor. One area that hasn't traditionally experienced much union activity is the tech industry -- but that's changing. According to data assembled by Collective Action in Tech that's further quantified in the chart below from Statista, tech workers lifted a lot more fists starting in 2019. The number of actions in that year was more than for the previous four years combined, and it went up again in 2020, dipping only slightly in 2021. Note that the numbers are for all types of union efforts, not just for new unions actually launching: The efforts include doing or threatening to do walkouts, strikes, and protests, as well as votes to organize -- or even simply circulating petitions or writing open letters. Collective Action in Tech documented 481 actions, as of this writing, going back to 2015. But 352 of them happened in the past three years. The list is not limited to the US -- a few of the actions listed for 2021 included work stoppages against the British delivery platform Deliveroo; same for Gorillas in Berlin, Germany; and in South Africa, drivers filed a class-action suit against Uber. The site lists only five actions for 2022 thus far, all from January, including actions at Activision Blizzard Studios, Facebook/WhatsApp, and Google Fiber. So it doesn't yet include the history-making vote to organize at an Amazon warehouse, which took place on Staten Island on April 3. Another vote a different Amazon warehouse on Staten Island is coming up on April 25. [GN] [*] Use of "Costs Referees" Cut $11MM from Class Action Legal Bills ------------------------------------------------------------------- Michael Pelly, writing for Australian Financial Review, reports that a class actions expert has hailed the use of "costs referees" as a crucial factor in higher returns for litigants, saying more than $11 million has been cut from legal bills over the past four years. Vince Morabito of Monash University has compiled a report of claims in the Federal Court that shows judges are increasingly turning to expert advice when asked to approve settlements. He cites a comment from Justice Michael Lee in a 2018 hearing: "Solicitors retaining an independent expert is an insult to everyone's intelligence, frankly." Professor Morabito reviewed 35 Federal Court class actions in which a judge appointed a contradictor/costs referee to review the reasonableness of the costs claimed in settlement approval applications. Of the 30 finalised cases, they recommended cuts in 23 to legal fees and disbursements sought by plaintiffs. The total deductions came to $12,211,464.24, with judges implementing cuts worth $11,458,401.74. The first referral was made in July 2017, but the pace has accelerated: of the 35 referrals, 23 have been ordered since June 2019. The majority were shareholder claims. The biggest deduction came in Prygodicz v The Commonwealth (the Robodebt case), in which Justice Bernard Murphy accepted a recommendation to decrease the fees and disbursements by $4,016,982. The claim was settled for $1.2 billion. Professor Morabito said: "Regardless of one's ideological, conceptual or theoretical views on class actions and/or financial interest in this type of litigation, it cannot be denied that this finding provides strong objective evidence that the judicial appointment of costs referees has been an extremely positive development in the judicial protection of the interests of class members." The Coalition wants to mandate the use of contradictors as part of a package of class action reforms that seeks to increase returns to class members. It is one of the few measures that has the support of Labor. The study excluded the Banksia Securities class action, which was settled for $64 million and approved by the Supreme Court of Victoria in 2018. In 2019, the Court of Appeal refused to sign off on the legal fees ($4.75 million) and funder's commission ($12.8 million) after a group member challenged the amounts. Justice John Dixon then appointed a contradictor, which ultimately led to an $11.7 million penalty plus a costs order of around $10 million. Those involved also gave up any claim on costs. [GN] [^] CLASS ACTION Money & Ethics Conference on May 2 - Register Now ------------------------------------------------------------------ Register for the 6th Annual Class Action Money & Ethics Conference, Monday, May 2nd, at the Harmonie Club. New speakers are announced weekly. If your firm is interested in sponsorship or a speaking opportunity, please contact: Bernard Toliver, CMP Tel: (240) 629-3300 ext. 149 E-mail: bernard@beardgroup.com For more conference information, visit us at https://www.classactionconference.com/ ********* 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 ***