/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220606.mbx C L A S S A C T I O N R E P O R T E R Monday, June 6, 2022, Vol. 24, No. 106 Headlines 22ND CENTURY: Second Cir. Affirms in Part Dismissal of Noto Suit ABBOTT LABORATORIES: Clean Label Suit Moved to D.C. Superior Court ABITINO'S PIZZA: Bid for Settlement Approval in Choror Suit Denied ACE INSULATION: Bigby Files Suit in Cal. Super. Ct. ACUTUS MEDICAL: Faces Class Action in California Court AETNA LIFE: Court Grants Bid to Certify Class in Wolff ERISA Suit ALL HOURS: June 14 Extension to File Class Cert. Response Sought ARC ONE: Raposo Seeks Conditional Cert of Collective Action ATHIRA PHARMA: Faces Jawandha Shareholder Suit in Washington Court ATHIRA PHARMA: Faces Slyne Shareholder Suit in Washington Court ATHIRA PHARMA: Faces Wang Shareholder Suit in Washington Court ATRIA MANAGEMENT: Khoshchin Wage-and-Hour Suit Goes to E.D. Cal. BECKMAN COULTER: Figueroa Files Suit in Cal. Super. Ct. BEDFORD CHEESE: Tucker Files ADA Suit in S.D. New York BERKELEY LIGHTS: Court Names Hagens Berman Lead Counsel in Ng Suit BLINK HOLDINGS: Fails to Timely Pay Wages, Gregory Suit Claims BOOT BARN HOLDINGS: Faces Labor Suit in California Court BP EXPLORATION: Court Grants in Part Bid to Dismiss Stephens Suit BP EXPLORATION: Court Grants in Part Bid to Dismiss Turner Suit BP EXPLORATION: Court Grants in Part Bid to Dismiss Wallace Suit BP VENTURE MANAGEMENT: Noel Files Suit in Cal. Super. Ct. BRIGHT HEALTH GROUP: Faces Marquez Securities Suit in NY Court CALIFORNIA CEMETERY: Harp Suit Remanded to Kern County Super. Court CALIFORNIA: Bid for Discovery in Peyton v. HDSP Partially Granted CITADEL SALISBURY: Bid to Dismiss Hooker Class Suit Granted in Part CO-DIAGNOSTICS: Faces Stockholder Suits Over Faulty Press Releases CODE ENFORCEMENT: Underpays Security Guards, Niekerk Suit Claims CONSUMER ADJUSTMENT: Brittingham Seeks Class Certification CONTINENTAL CASUALTY: Bid to Dismiss Cheslow Suit Granted in Part CORMEDIX INC: Plaintiff in Securities Suit Balks at Bid to Dismiss DEVA CONCEPTS: Denial of Bid for Exclusion in Settlement Appealed DJO GLOBAL INC: Jimenez Files ADA Suit in S.D. New York DRINKS INSIDERS: Mejia Files ADA Suit in S.D. New York EARLY WARNING: Arant Consumer Fraud Suit Removed to D. Arizona EASTWOOD CONSTRUCTION: Russo Class Suit Removed to D.S.C. ENCORE CAPITAL: Williams Appeals Summary Judgment in FDCPA Suit ENDA ATHLETIC: Jimenez Files ADA Suit in S.D. New York EPIC LANDSCAPE: Faces Gomez Wage-and-Hour Class Suit in D. Kansas ERIE INSURANCE: Summary Judgment Order in Rubinstein Suit Affirmed ETELEQUOTE INSURANCE: Clough Sues Over Unsolicited Telephone Calls EVERSOURCE ENERGY: Court Certifies Class in Garthwait ERISA Suit FIRSTSUN CAPITAL: Faces Besser Overdraft Suit in CO Court FIRSTSUN CAPITAL: McCollam Overdraft Suit Dismissed FLEET NEW YORK: Court Vacates Entries of Default in Li Class Suit FORSTER & GARBUS: Parties Must File Class Cert Bid by June 24 FRIENDLY HOME CARE: Konstantynovska Files Suit in N.Y. Sup. Ct. GAS GATHERING: Lyman Suit Transferred From Minnesota to W.D. Texas GEICO CASUALTY: Second Circuit Affirms Dismissal of Grossman Suit GLOBAL TRADE: Li Files FLSA Suit in D. Oregon GOOGLE LLC: Extension of Time for Class Cert. Deadlines OK'd GREAT LAKES: Court Amends Class Certification Orders in Dawson Suit HCF MANAGEMENT: Pike Sues Over Failure to Pay Proper Overtime HUDSONVILLE CREAMERY: Jimenez Files ADA Suit in S.D. New York HYUNDAI CAPITAL: Scherer Sues Over Improper Business Schemes IANTHUS CAPITAL: Faces Cedeno Securities Suit IANTHUS CAPITAL: Faces Hi-Med Securities Suit in NY Court IANTHUS CAPITAL: Faces Kwong Securities Suit in Toronto ILLUMINATE EDUCATION: Chung Files Suit in E.D. New York INTERACTIVE BROKERS: Batchelar Files Bid for Class Certification J&M DELI: Fails to Pay Minimum & OT Wages, Morales Suit Claims J. QUEEN NEW YORK: Miller Files ADA Suit in W.D. New York JACK ROGERS: Miller Files ADA Suit in W.D. New York JANTZEN APPAREL: Jimenez Files ADA Suit in S.D. New York JUUL LABS: Causes Youth E-Cigarette Crisis, Wyoming County Claims JUUL LABS: E-Cigarette Ads Target Youth, Northeast School Claims JUUL LABS: Promotes E-Cigarette Use to Youth, Western School Says KELLOGG SALES: Court Grants Bid to Dismiss Harris Class Complaint KEYPOINT GOVERNMENT: Appeals Reconsideration Bid Denial in Brayman KONINKLIJKE PHILIPS: Castay Sues Over Defective CPAP Devices KRAFT HEINZ: Tarantino Suit Moved From E.D.N.Y. to N.D. Ill. KSF ACQUISITION: Jimenez Files ADA Suit in S.D. New York LABORATORY CORP: Court Certifies Classes in Davis ADA Suit LOCUST MEDICAL: Seeks Denial of Jackson Class Cert Bid MCCLATCHY CO: Bid to Compel Arbitration in Kelly TCPA Suit Denied MCLEOD HEALTHCARE: Hourly Employee Class Certified in Wilkes Suit MDL 2724: IRPs' Claims v. Distributors in Antitrust Suit Dismissed MDL 2887: Eichhorn-Burkhard Complaint Dismissed From Dog Food Suit MDL 2936: Court Amends Sched Order in Products Liability Suit METROPOLITAN PROPERTY: Final Judgment & Order Entered in Shields MID-HUDSON VALLEY: Edwards Files Suit in N.D. New York MY FAVORITE DELI: Fails to Pay Proper Wages, Romero Suit Alleges MYRON CORP: Jimenez Files ADA Suit in S.D. New York NASHVILLE, TN: Harris Ordered to File Amended Complaint v. DCSO NASSAU CANDY: Jimenez Files ADA Suit in S.D. New York NEABAR INC: Misclassifies Dancers, McCoy Suit Claims NEW GENERATION: Rodriguez Sues Over Failure to Pay Overtime Wages NEW JERSEY: Bid for Prelim. Injunction in Carmona v. NJDEP Denied NEW JERSEY: Bid to Certify Class in Pasquerello v. EMCFW Denied NISSAN NORTH AMERICA: Martinez Sues Over Failure to Disclose Defect NOBLE ENERGY: Boulter Appeals Breach of Contract Suit Dismissal NOCO COMPANY: Jimenez Files ADA Suit in S.D. New York NORTH AMERICAN: Court Denies Bennett's Bid for Class Certification OHIO: Court of Appeals Affirms Judgment Entered in Cowell Suit OSCAR HEALTH: Improperly Reimbursed Physicians, ECURE Suit Claims PACIFIC GRAIN: Fails to Pay Proper Wages, Salcedo Suit Alleges PATREON INC: Discloses Consumers' Personal Info, Stark Suit Says PAYSIGN INC: Faces Chase Shareholder Suit in Nevada Court PAYSIGN INC: Faces Shi Shareholder Suit in Nevada Court PERPAY INC: Newell TCPA Class Suit Removed to S.D. Florida PRO THERAPY SUPPLIES: Jimenez Files ADA Suit in S.D. New York PROCTOR & GAMBLE: Court Denies Bid to Transfer Gamboa Suit Venue PROSPER MARKETPLACE: Faces Suit Over Violations of MD Loan Laws QUALCOMM INC: Shah, et al., Seek to Certify Class of Investors RAY KLEIN: Class Settlement in Russell Suit Wins Prelim. Approval RETROPOLIS LLC: Jimenez Files ADA Suit in S.D. New York REX SIGNATURE: Taylor Files Suit in Cal. Super. Ct. RIDGWAY LLC: Fails to Provide Overtime Pay, Ruid Suit Alleges RITEWAY MARINE: Tucker Files ADA Suit in S.D. New York RIVERLANDS HOME: Cambre Bill of Rights Suit Removed to E.D. La. ROSEVIEW NURSING: Johnson Bill of Rights Suit Goes to W.D. La. SAFI-G INC: Ponce et al. Sue Over Failure to Pay Wages & OT SCHROTH SAFETY: Faces Moore Suit Over Interference and Retaliation SDH PIZZA: Mayo-Keller Sues Over Unpaid Delivery Drivers' Wages SELECT EMPLOYMENT: Class & Nine Subclasses Certfied in Romero SERVICE KING: Hassanpoor Sues Over Body Technicians' Unpaid Wages SHATTUCK LABS: Faces Two Shareholder Suits in NY Court SILVERBACK THERAPEUTICS: Faces Dresner Securities Suit in WA Court SOUTH CAROLINA: Wins Summary Judgment v. Huger Class SPARC GROUP: Faces Gregory Suit Over Failure to Timely Pay Wages SST CONSTRUCTION: Garcia Files Suit in Cal. Super. Ct. ST. JOSEPH: Cole Bill of Rights Suit Removed to E.D. Louisiana ST. LOUIS, MO: District Court Certifies Classes in Cody v. MSI STYM LLC: Chalas Files ADA Suit in S.D. New York SUFFOLK MARINE CENTER: Tucker Files ADA Suit in S.D. New York TENNESSEE VALLEY AUTHORITY: Faces Breach of Contract Suit in VA TRANSWORLD SYSTEMS: Court Dismisses Osorio FDCPA Complaint TRANSWORLD SYSTEMS: Osorio Appeals FDCPA Suit Dismissal TRINET HR: Huang Files Bid for Class Certification UNITED STAFFING: Class of Filipino Nurses Certified in Magtoles US BANK: Melnick's Bid to Certify Class Denied as Premature VENUS CONCEPT: Settlement in Wong Securities Suit Wins Final Nod VENUS CONCEPT: Court Approves Li Securities Suit Settlement VENUS CONCEPT: Settlement in Guerrini Securities Suit Wins Final OK VENUS CONCEPT: Settlement in Yzeiraj Suit Gets Final Approval VVF INTERVEST: Extension to File Conditional Cert Reply Sought WAKEFIELD & ASSOCIATES: Getchel Has Until June 8 to File Response WALMART INC: Lebby's Time to File Class Cert Extended to Sept. 16 WEWORK INC: Faces Carter Suit Over Breach of Fiduciary Duties WEWORK INC: Won Shareholder Suit in California Court Ongoing WISCONSIN: Court Dismisses Carr, Fessahaye and Moon From Lewis Suit WYZE LABS: Quevedo Suit Alleges Unsolicited Telemarketing Calls ZYMERGEN INC: Faces Shankar Securities Suit in CA Court ********* 22ND CENTURY: Second Cir. Affirms in Part Dismissal of Noto Suit ---------------------------------------------------------------- In the case, Joseph Noto, Garden State Tire Corp., Stephens Johnson, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants v. 22nd Century Group, Inc., Henry Sicignano, III, John T. Brodfuehrer, Defendants-Appellees, Case No. 21-0347-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirms in part and vacates in part the judgment of the Western District of New York dismissing the Plaintiffs' complaint against the Defendants. I. Background Plaintiffs Joseph Noto, Stephens Johnson, and Garden State Tire Corp. appeal from a judgment of the Western District of New York (Sinatra, J.) dismissing their complaint against 22nd Century Group and its former CEO and CFO, Henry Sicignano, III and John T. Brodfuehrer. The corporate Defendant, 22nd Century, is a publicly traded company that strives to genetically engineer tobacco and cannabis plants to regulate their nicotine levels or cannabinoids. From 2015 to 2019, Sicignano was the Company's CEO, and from 2013 to 2019, Brodfuehrer was the Company's CFO. Shortly after Sicignano became CEO, he engaged the consulting firm IRTH Communications to handle 22nd Century's investor relations. The Plaintiffs, investors in 22nd Century Group, allege on behalf of an investor class that (1) the Defendants engaged in an illegal stock promotion scheme in which they paid authors to write promotional articles about the company while concealing the fact that they paid the authors for the articles; and (2) the Defendants failed to disclose an investigation by the Securities and Exchange Commission ("SEC") into the company's financial control weaknesses. After public articles revealed the promotion scheme and SEC investigation, the company's stock price fell, and the Plaintiffs allege they were harmed. In November 2019, after the case was transferred to the Western District of New York, the Plaintiffs filed the amended class action complaint at issue in this appeal. The class consisted of any person or entity that acquired 22nd Century securities between Feb. 18, 2016, and July 31, 2019. On May 1, 2020, the Defendants moved to dismiss the amended complaint for failure to state a claim. The Plaintiffs asked the district court for an opportunity to further amend the complaint should the Court grant any part of the Defendants' motion. On Jan. 14, 2021, the district court dismissed the entirety of the amended complaint with prejudice or failing to state a claim upon which relief could be granted, and denied the Plaintiffs' request for leave to amend as futile. On appeal, the Plaintiffs argue that (1) they adequately alleged material misrepresentations and manipulative acts sufficient to sustain claims under subsections (a), (b), and (c) of SEC Rule 10b-5; (2) their claim under Section 20(a) of the Securities Exchange Act was premised on a valid predicate violation of Section 10(b); and (3) the district court erred in dismissing the complaint with prejudice. II. Discussion A. Rule 10b-5(b) Claims The complaint alleges that the Defendants violated Section 10(b) of the Exchange Act and SEC Rule 10b-5(b). The Plaintiffs claim that the Defendants unlawfully published promotional articles and concealed an SEC investigation, all in an effort to artificially inflate the Company's stock price. The Plaintiffs contend that when these infractions were brought to light, the stock price fell. 1. Stock Promotion Scheme The complaint alleges that the Defendants omitted the material fact that they were paying authors to promote the Company's stock. The district court found that the Defendants had no duty to disclose that fact and therefore made no material omission. On appeal, the Plaintiffs first argue that the Defendants had a duty to disclose that the Company and IRTH paid the authors of the promotional articles because the Defendants provided content for, edited, reviewed, and/or approved those articles. The Second Circuit opines that under Section 17(b) of the Securities Act of 1933, an issuer who merely pays an author to write positive articles on a stock does not, without more, violate the Act. The articles themselves did little more than republish publicly-available content. Moreover, there is no allegation that the press releases, the content of which was captured in the articles themselves, were false or misleading. Because the complaint does not adequately allege that defendants had a duty to disclose that they paid for the articles' publication, the Plaintiffs fail to state a claim that the existence of the stock promotion scheme constituted a materially misleading omission. 2. SEC Investigation The complaint next alleges that the Defendants violated Rule 10b-5(b) by failing to disclose the SEC investigation into the Company's accounting controls. The district court found that the Defendants had no duty to disclose the investigation. The Plaintiffs contend that the Defendants had such a duty because, by not mentioning the investigation, their disclosures of the accounting deficiencies were misleading. The Second Circuit agrees with the Plaintiffs. It opines that the Company had a duty to disclose the SEC investigation into the weaknesses throughout the class period. Because the Defendants specifically noted the deficiencies and that they were working on the problem, and then stated that they had solved the issue, "the failure to disclose the investigation would cause a reasonable investor to make an overly optimistic assessment of the risk. Finally, the Defendants' false public denial of any knowledge of the SEC investigation amounts to an admission of the materiality of its nondisclosure. Otherwise, the Company would not have tried to hide it. Moreover, these denials were affirmatively misleading in their own right. Thus, the Second Circuit easily finds that the complaint adequately alleged that the Defendants violated Rule 10b-5(b) both by first omitting mention of the SEC. B. Rule 10b-5(a) and (c) Claims The complaint next alleges that the Defendants violated Rule 10b-5, specifically subsections (a) and (c), by illegally manipulating the market through the stock promotion scheme. The district court found that the complaint did not adequately allege a manipulative act or market activity sufficient to state a claim under those rules. The Second Circuit agrees. It opines that the complaint fails to support a claim that the Defendants manipulated the market. It does not allege that the market was manipulated by either the information in the articles, the payments to the writers, or the non-disclosure of the payments. There is no allegation that the articles themselves, which consisted of analysis and information derived from public filings, press releases, and statements by management, manipulated the market. Relatedly, there is no claim that defendants paying the articles' authors somehow manipulated the market or was intentionally designed to do so. Thus, the Plaintiffs fail to plead that the Defendants engaged in any manipulative act sufficient to sustain a market manipulation claim based on the undisclosed payments. C. Section 20(a) Claim The complaint also alleges that Sicignano and Brodfuehrer are liable under the control person provision of Section 20(a) of the Exchange Act. To state a claim under Section 20(a), a plaintiff must demonstrate, inter alia, a primary violation by the controlled person. The district court held that, because the Plaintiffs failed to plead a primary violation under Section 10(b) and Rule 10b-5, the dependent Section 20(a) claims must necessarily fail. Because it remands the Section 10(b) material misrepresentation claim based on the non-disclosure of the SEC investigation, the Second Circuit also vacates the Section 20(a) claim dismissal solely as it pertains to that particular non-disclosure. D. Leave to Amend At the conclusion of their opposition to the motion to dismiss, the Plaintiffs requested an opportunity to amend their complaint should any part of defendants' motion be granted. The district court denied the request. While it remands on the dismissal of the SEC investigation non-disclosure aspect of the Plaintiffs' Rule 10b-5(b) claim, the Second Circuit agrees that the Plaintiffs should not be permitted to amend their complaint to reallege any violations stemming from the non-disclosure of the article promotion scheme. The district court thus properly denied the Plaintiffs' request to replead their allegations stemming from the stock promotion scheme. III. Conclusion Judge John M. Walker, Jr., writing for the Second Circuit, agrees that the allegation that the Defendants failed to disclose the SEC investigation states a material misrepresentation and could also support Section 20(a) liability. He finds no merit in the remaining challenges. Accordingly, Judge Walker affirms in part, vacates in part, and remands for further proceedings consistent with the Second Circuit's Opinion. A full-text copy of the Court's May 24, 2022 Opinion is available at https://tinyurl.com/3p6p998h from Leagle.com. JEREMY A. LIEBERMAN -- jalieberman@pomlaw.com -- Pomerantz LLP, in New York City, for the Plaintiffs-Appellants. JOHN A. TUCKER -- jtucker@foley.com -- (Jonathan H. Friedman -- jfriedman@foley.com -- on the brief), Foley & Lardner LLP, Jacksonville, FL, New York, NY; Charles C. Ritter, Jr. -- critter@dhpglaw.com -- on the brief, Duke, Holzman, Photiadis & Gresens LLP, Buffalo, NY, for the Defendants-Appellees. ABBOTT LABORATORIES: Clean Label Suit Moved to D.C. Superior Court ------------------------------------------------------------------ Judge Beryl A. Howell of the U.S. District Court for the District of Columbia remands the case, CLEAN LABEL PROJECT FOUNDATION, Plaintiff v. ABBOTT LABORATORIES, INC., Defendant, Civil Action No. 21-cv-3247 (BAH) (D.D.C.), to the D.C. Superior Court. I. Introduction The case about product labeling is itself difficult to label. It is not exactly a case about product safety, but about whether an allegedly unsafe component of a product renders misleading advertising materials suggesting that the product is beneficial. It is not exactly a case about federal law, but it looks to federal agency guidance as to what a product can or cannot safely contain. It is not exactly a class action, but is brought by a representative named plaintiff organization on behalf of a large number of non-participating members of the general public. It is not exactly a case seeking money damages, but the Plaintiff's pleadings, as framed, could require the expenditure of substantial funds to effectuate the relief sought. Pending before the Court is the Plaintiff's motion to remand the case to D.C. Superior Court following its removal by the Defendant. II. Background Plaintiff Clean Label Project Foundation describes itself as a "non-profit public interest organization whose mission is to educate the public and enable consumers to make informed shopping choices." In service of that mission, the Plaintiff "uses state-of-the-art laboratory testing to identify the best and worst labeled products," publicly publishes its findings, and in so doing hopes to "reduce contamination across all consumer products." Contaminants of interest to the Plaintiff include lead, a "known neurotoxin," and cadmium, a "known neurotoxin and osteotoxin." The Plaintiff cites statements by an assortment of government and private organizations in support of a general scientific consensus that "there is no safe level of lead for children," and alleges various facts pertaining to the myriad adverse physiological effects of lead. It similarly alleges facts related to the adverse effects of cadmium, but without citing any statements by U.S. government agencies. One item in the Defendant's expansive product portfolio is Similac Alimentum Infant Formula for Food Allergies and Colic. Alimentum is part of the Defendant's broader Similac line of infant formula products marketed as having benefits pertaining to "brain development," "bone development," and "immune support." The Defendant also markets Similac products with such slogans as "We promise to give your baby the best" and "Nearly a century of keeping promises." To evaluate Alimentum, the Plaintiff purchased an amount of the product for analysis by a third-party laboratory. According to the Plaintiff, that analysis showed that the purchased Alimentum sample "contains dangerous levels of" lead and cadmium, which it asserts shows that these contaminants "are present in Alimentum, or at a minimum, that the Defendant makes no efforts to confirm that they are absent." According to the Plaintiff, this type of contamination is incompatible with the Defendant's descriptions of Alimentum as promoting "brain development," "bone development," and "immune support." Based on these findings, on Oct. 1, 2021, the Plaintiff filed a complaint in D.C. Superior Court alleging, in a single count, that the Defendant violated the D.C. Consumer Protection Procedures Act ("CPPA"), D.C. Code Section 28-3901 et seq. The Complaint is styled as a "representative action claim on behalf of the Plaintiff and the general public of the District of Columbia," pursuant to D.C. Code Section 28-3905(k)(1-2). The Plaintiff alleges that because Alimentum contains detectable amounts of lead and cadmium, the Defendant's marketing statements mislead or fail to inform consumers with respect to "material facts about" Alimentum. Additionally, it alleges a further CPPA violation because Alimentum is "adulterated," as defined by D.C. Code Section 48-103, due to the presence of the harmful metals lead and cadmium. On Dec. 10, 2021, the Defendant timely filed a Notice of Removal to the Court. The Plaintiff timely filed the instant Motion to Remand to D.C. Superior Court on Jan. 10, 2022. During briefing on the motion to remand, on Jan. 31, 2022, the Defendant filed the also-pending motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion to dismiss was accompanied by a Request for Judicial Notice, concerning 22 exhibits from various public sources. Before filing its opposition to the motion to dismiss, the Plaintiff filed, on Feb. 21, 2022, a Motion to Strike Defendant's Requests for Judicial Notice, seeking to strike a declaration filed with the motion to dismiss, the request for judicial notice, the 22 sundry exhibits thereto, and "all arguments relying on those documents." Briefing on the trio of interlocking motions was completed on March 14, 2022. On May 11, 2022, review by the Court identified a possible lack of diversity of citizenship between the parties on account of both named parties appearing to be incorporated in Delaware, and directed the parties to file a supplemental report clarifying the citizenship of the parties. The parties responded in a joint statement on May 13, 2022. All pending motions are now ripe for disposition. III. Discussion The Defendant asserts three independent bases for removal: (1) the Complaint "raises substantial questions of federal law" both by relying on "federal regulatory bodies" for the assertion that there is "no known safe level" of lead and cadmium, and because federal law governs the contents and labeling of infant formula; (2) diversity jurisdiction lies under the Class Action Fairness Act ("CAFA"); and (3) even if CAFA is inapplicable and only a single plaintiff is named, the parties are completely diverse and the $75,000 amount in controversy threshold is met by considering the expected total cost of injunctive relief. Judge Howell examines each proposed basis in turn, and finds that each fails. First, she finds that the Defendant fails to identify a question of federal law on which the Plaintiff's CPPA claim turns, let alone any that is "necessary" to its resolution. To be sure, federal agency statements about no safe level of lead existing have considerable persuasive value as scientific authority when assessing the factual question whether Alimentum is "unsafe," but the agencies' scientific advice is no different in kind as a legal matter from similar statements by other domestic and international organizations, around which the Plaintiff also bases its claims. Accordingly, the Defendant cannot justify removal by claiming that the action "arises under" federal law. Second, Judge Howell holds that the parties have cited to no binding authority from either the D.C. Circuit or D.C. Court of Appeals directly addressing whether a CPPA representative action seeking only injunctive relief and brought in a "private attorney general" posture is to be deemed a "class action" within the scope of Rule 23 and/or CAFA. Her analysis confirmed by persuasive authority, leads to the conclusions that Rule 23's requirements need not apply to such actions, CAFA does not provide a basis for federal jurisdiction over such actions, and the case is not converted into a federal class action simply by seeking injunctive relief for consumers. Accordingly, the case is not a "class action" for CAFA purposes. Finally, diversity jurisdiction is not established. The Complaint is most reasonably read as intending to sue the Delaware entity "Abbott Laboratories Inc." To the extent any ambiguity persists, "any ambiguities concerning the propriety of removal" militate "in favor of remand." Further, even if the Defendant had a colorable argument the Complaint should be construed differently, the Defendant has utterly failed -- even with the opportunity provided for supplemental briefing on the topic -- to meet the burden it bears as the removing party to show by a preponderance of the evidence that the parties are diverse. IV. Conclusion Judge Howell concludes that the Court lacks subject matter jurisdiction over the matter on any of the grounds the Defendant proposes -- federal question, CAFA, or ordinary diversity jurisdiction -- and therefore the case must be remanded to Superior Court. As a result, she need not -- and cannot -- weigh in on the merits of the case so her analysis must stop here. For the foregoing reasons, the Plaintiff's Motion to Remand is granted. Accordingly, the Defendant's Motion to Dismiss, the Request for Judicial Notice contained therein, and the Plaintiff's Motion to Strike are all denied as moot. An Order consistent with the Memorandum Opinion will be entered contemporaneously. A full-text copy of the Court's May 25, 2022 Memorandum Opinion is available at https://tinyurl.com/3n8tt2ad from Leagle.com. ABITINO'S PIZZA: Bid for Settlement Approval in Choror Suit Denied ------------------------------------------------------------------ In the case, PEDRO GIDDEL CHAVALOC CHOROR and RENATO LOPEZ SAYAMAN, Plaintiffs v. ABITINO'S PIZZA 49TH STREET CORP., d/b/a, ABITINO'S PIZZERIA, ABITINO'S PIZZA & RESTAURANT, INC. NO. II d/b/a ABITINO'S PIZZERIA, and MARIO ABITINO, SALVADOR ABITINO, DOMINIQUE ABITINO, and MARIO ABITINO, as individuals, Defendants, Case No. 19 Civ. 9297 (AT) (S.D.N.Y.), Judge Analisa Torres of the U.S. District Court for the Southern District of New York denies the parties' motion for settlement approval without prejudice to renewal. I. Background Plaintiffs Pedro Giddel Chavaloc Choror and Renato Lopez Sayaman bring the action against Defendants Abitino's Pizza 49th Street Corp., Abitino's Pizza & Restaurant, Inc. No. II, Mario Abitino, Salvador Abitino, Dominique Abitino, and Mario Abitino, raising claims for, inter alia, unpaid minimum wage and overtime wages under the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. Section 201 et seq., and parallel claims, as well as wage notice and wage statement violations under the New York Labor Law (the "NYLL") Section 190 et seq. Having reached a settlement, the parties seek the Court's approval of their proposed agreement. II. Analysis The Settlement provides the Plaintiffs with a recovery of $20,000, inclusive of attorneys' fees and costs. To ascertain the Plaintiffs' best-case scenario for recovery, the Plaintiff's counsel reviewed the Defendants' time and pay records for both the Plaintiffs, and documents from a prior class-action settlement against the Defendants for similar violations. On this basis, the Plaintiffs believe their maximum possible recovery is $70,000, including $25,000 for unpaid wages, as well as liquidated damages and statutory penalties. The parties note that continuing formal discovery -- including numerous depositions -- would have created significant burdens and expenses for both parties. And, trial would have imposed significant costs and burdens on both parties, including requiring the Plaintiffs to miss work and incur expenses related to translation, in addition to other trial costs. The Plaintiffs also recognized that, although they challenged the accuracy of the Defendants' payroll records, had such records been accepted by a fact-finder, they would receive a substantially lower recovery than what they would obtain through a settlement. Moreover, the settlement was reached after a year of extensive settlement talks, as well as a Court-annexed mediation, with both sides represented by experienced counsel. Finally, the parties state that there is no possibility of fraud or collusion. Judge Torres concludes, therefore, that the Settlement satisfies each of the Wolinsky factors. However, the Settlement contains a liability release clause only as to the Defendants, which Judge Torres finds improper in three aspects. First, the clause binds the Plaintiffs, as well as their "heirs, executors, administrators successors and assigns." Second, the Settlement releases from liability numerous entities beyond the Defendants alone. And, the Plaintiffs are afforded no releases from liability whatsoever. Therefore, Judge Torres cannot conclude that the Settlement's release clause is "fair and reasonable" under Cheeks, and will not approve the Settlement. III. Conclusion For the foregoing reasons, the parties' motion for settlement approval is denied without prejudice to refiling a revised settlement agreement that narrows the release provision (1) so as not to confer an unearned benefit on entities and individuals beyond the parties herein; and (2) limits release only as to claims arising out of the same facts that gave rise to the claims advanced in the action. The parties will file a revised settlement agreement by June 7, 2022. A full-text copy of the Court's May 24, 2022 Order is available at https://tinyurl.com/38cak4b3 from Leagle.com. ACE INSULATION: Bigby Files Suit in Cal. Super. Ct. --------------------------------------------------- A class action lawsuit has been filed against Ace Insulation Inc., et al. The case is styled as Justin Bigby, and on behalf of all others similarly situated v. Ace Insulation Inc., Does 1-50, Case No. 34-2022-00320638-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., May 26, 2022). The case type is stated as "Other Employment - Civil Unlimited." Ace Insulation Inc. -- https://aceinsulation.biz/ -- specializes in commercial and home insulation in Petaluma, California.[BN] The Plaintiff is represented by: Darren M Cohen, Esq. KINGSLEY & KINGSLEY APC 16133 Ventura Blvd., Ste. 1200 Encino, CA 91436-2416 Phone: 818-990-8300 Fax: 818-990-2903 Email: dcohenlaw@sbcglobal.net ACUTUS MEDICAL: Faces Class Action in California Court ------------------------------------------------------ Acutus Medical, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that as of March 31, 2022, the company and certain of its current officers have been named as defendants in Case Number 22CV206 filed in the United States District Court for the Southern District of California. Acutus Medical, Inc. is an arrhythmia management company focused on improving the way cardiac arrhythmias are diagnosed and treated based in California. AETNA LIFE: Court Grants Bid to Certify Class in Wolff ERISA Suit ----------------------------------------------------------------- In the case, JOANNE WOLFF, individually and on behalf of a Class of Similarly Situated Individuals, Plaintiff v. AETNA LIFE INSURANCE COMPANY, Defendant, Case No. 4:19-CV-01596 (M.D. Pa.), Judge Matthew W. Brann of the U.S. District Court for the Middle District of Pennsylvania grants Wolff's motion for class certification. I. Background In 2020, Wolff, on behalf of herself on all similarly situated individuals, filed a second amended complaint against Aetna raising claims for: a violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), breaches of fiduciary duties, conversion, money had and received, intentional misrepresentation, negligent misrepresentation, unjust enrichment, theft by deception, attempted theft, a violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, and a violation of the Pennsylvania Fair Credit Extension Uniformity Act. Ms. Wolff avers that she was previously insured for long-term disability benefits under the terms of a group plan issued by Aetna through Bank of America Corp. -- Wolff's employer. In September 2015, Wolff was temporarily disabled as a result of a motor vehicle accident that caused Wolff injuries. Wolff submitted a claim to Aetna under the Plan and received long-term disability benefits exceeding $50,000. Ms. Wolff separately filed a civil action against the other party involved in the accident. Wolff and the Defendant eventually settled the matter, with Wolff receiving monetary compensation from the defendant in that matter. Aetna and another entity with which it worked, the Rawlings Co., sought reimbursement of the benefits that Aetna had paid to Wolff under the terms of the Plan, despite the Plan allegedly not permitting such reimbursement. After negotiations between Wolff and Rawlings, Wolff agreed to reimburse Aetna and Rawlings $30,000. Despite agreeing to pay that sum to Aetna, Wolff asserts that the Plan did not permit Aetna to pursue reimbursement for her personal injury recovery. As relevant in the case, Wolff alleges that the Plan permitted Aetna to obtain reimbursement only for "Other Income Benefits," and personal injury recoveries are not included in the Plan's definition of "Other Income Benefits." Ms. Wolff has now filed a motion to certify a class pursuant to Federal Rule of Civil Procedure 23. She contends that certification is appropriate because Aetna engaged in a common course of conduct by seeking reimbursement from individuals who had plans similar to Wolff's -- in that said plans did not permit reimbursement for personal injury recoveries -- but Aetna nevertheless pursued reimbursement from those individuals. She further asserts that the remainder of the requirements for class certification are met and, therefore, the class should be certified. Aetna responds that the conditions for class certification have not been met. First, it argues that different Aetna plans contain varying language, meaning the Court would need to conduct an individualized assessment of each plan. Second, Aetna asserts that there are insufficient class members to warrant certification. Third, Aetna claims that certain defenses are applicable only to certain individuals, and misrepresentation claims require individual analyses as to each individual, rendering class certification inappropriate. Finally, it contends that joinder of the parties is practical, and trial of a class action would be unmanageable. Ms. Wolff has filed a reply brief, and the motion is now ripe for disposition. II. Discussion A. Rule 23(a) Requirements First, Wolff must establish the four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. "The requirements of Rule 23(a) are meant to assure both that class action treatment is necessary and efficient and that it is fair to the absentees under the particular circumstances." Judge Brann concludes that Wolff has satisfied these requirements. He opines that (i) at this stage, there is sufficient evidence that the proposed class satisfies the numerosity requirement of Rule 23; (ii) bcause Wolff "shares at least one question of fact or law with the grievances of the prospective class, commonality is met; (iii) the interests and incentives of Wolff would appear to be aligned with the potential class members; (iv) Wolff's interests adequately align with those of the potential class; and (v) Wolff's attorney is capable of adequately representing the class. B. Rule 23(b)(3) Requirements Having concluded that the requirements of Rule 23(a) have been met, Judge Brann must assess whether Wolff has satisfied the requirements of Rule 23(b)(3). Under Rule 23(b)(3), class certification is appropriate if "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." As to the first requirement of Rule 23(b)(3), Judge Brann finds that Wolff has established predominance, as a single issue is "more prevalent or important than the non-common, aggregation-defeating, individual issues. As to superiority, he concludes that Wolff has also established that class certification is superior to other available methods to adjudicate the issue. III. Conclusion For the foregoing reasons, Judge Brann concludes that certification of the proposed class is appropriate. Consequently, Wolff's motion for class certification will be granted. An appropriate Order follows. A full-text copy of the Court's May 25, 2022 Memorandum Opinion is available at https://tinyurl.com/mtas8n7a from Leagle.com. ALL HOURS: June 14 Extension to File Class Cert. Response Sought ---------------------------------------------------------------- In the class action lawsuit captioned as JILL ADLER, individually and on behalf of all others similarly situated, v. ALL HOURS PLUMBING DRAIN CLEANING 24-7-365 LLC, Case No. 2:21-cv-00141-DBP (D. Utah), the Parties stipulated that All Hours may have a two week extension, up to and including June 14, 2022, to file its response to plaintiff's motion to certify a class. A copy of the Parties' motion dated May 24, 2022 is available from PacerMonitor.com at https://bit.ly/3x4ZYMK at no extra charge.[CC] The Plaintiff is represented by: Matthew J. Morrison, Esq. MORRISON LAW OFFICE www.morrisonlegal.blogspot.com 231 Old Bernal Ave Ste 2A Pleasanton, CA 94566-7010 Telephone: (925) 399-1856 Facsimile: (925) 860-2743 E-mail: matthewmorrisonlegal@gmail.com The Defendant is represented by: Robert H. Scott, Esq. AKERMAN LLP 170 South Main Street, Suite 725 Salt Lake City, UT 84101-1648 Telephone: (801) 907-6900 Facsimile: (801) 355-0294 E-mail: robert.scott@akerman.com ARC ONE: Raposo Seeks Conditional Cert of Collective Action ----------------------------------------------------------- In the class action lawsuit captioned as FELIX A. RAPOSO v. ARC ONE PROTECTIVE SERVICES LLC, CHANCE F. RAMOS, AND AUSTIN WALLACE, Case No. 1:22-cv-21194-MGC (S.D. Fla.), the Plaintiff asks the Court to enter an order: A. granting conditional certification of a Collective Action under section 216(b) of the Fair Labor Standards Act for the proposed Putative Class defined as follows: "All persons who are currently, or who were, working for ARC One Protective Services LLC, Chance Ramos, and Austin Wallace from April 19, 2019, to the present as security officers or other similarly titled positions, either directly by or through any of their subsidiaries or affiliated companies." B. appointing him as the representative of the Putative Class with authority to appear at any mediation/settlement conference and to bind the Putative Class. C. requiring that within 10 days, the Defendants to format and produce a in hard copy and electronically an Excel spreadsheet a complete list of each person in alphabetical order by last name -- including his/her last known home address, cellular telephone number, and email address in a separate field -- who worked as a security officer or other similarly titled position for Defendants at any time between April 18, 2019 and the present to facilitate the preparation and sending of notice; D. permitting his counsel to send a Court-Approved Notice by email and by U.S. Mail to all members of the Putative Class about their rights to opt into this collective action by filing a Consent to Join Lawsuit and to call/text each to ensure that they received the Notice forms; E. permitting his counsel to send a Court-Approved Reminder Notice by email and by U.S. Mail to all Putative Class members and to call/text each to ensure that they received the Reminder Notice; and F. requiring the Defendants to post notice in their break room for the entire notice period and to provide a copy of the Court-Approved Notice to all Putative Class members in the next paycheck / pay stub provided to Defendants’ current employees. The Plaintiff brought this collective action for himself and other similarly situated current and former security officer employees of Defendants, ARC One Protective Services, LLC, Chance F. Ramos, and Austin Wallace, for failing to properly pay overtime wages for all hours worked after 40 a week pursuant to 29 U.S.C. section 216(b) of Fair Labor Standards Act (FLSA). A copy of the Plaintiff's motion to certify class dated May 24, 2022 is available from PacerMonitor.com at https://bit.ly/3NKTc5C at no extra charge.[CC] The Plaintiff is represented by: Brian H. Pollock, Esq. FAIRLAW FIRM 135 San Lorenzo Avenue, Suite 770 Coral Gables, FL 33146 Telephone: (305) 230-4884 E-mail: brian@fairlawattorney.com ATHIRA PHARMA: Faces Jawandha Shareholder Suit in Washington Court ------------------------------------------------------------------ Athira Pharma, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that the company was named as a defendant in a class action lawsuit alleging the company's IPO registration statement was materially false and misleading. On June 25, 2021, plaintiff Harshdeep Jawandha filed a putative securities class action lawsuit in the U.S. District Court for the Western District of Washington against the Company, Dr. Kawas, the Company's Chief Financial Officer, certain members of the Company's board of directors at the time of the Company's IPO, as well as the IPO underwriters, captioned "Jawandha v. Athira Pharma, Inc., et al." No. 2:21-cv-00862. The Jawandha complaint asserts violations of Sections 11 and 15 of the Securities Act of 1933, alleging that the Company's IPO registration statement was materially false and misleading because it omitted to state that certain of Dr. Kawas's published doctoral research papers at WSU contained allegedly improperly altered images, that the research was allegedly foundational to the Company's efforts to develop treatments for Alzheimer's disease, and that the defendants' positive statements about the Company's business, operations, and prospects were materially misleading. The plaintiff seeks unspecified compensatory damages, and reasonable costs and expenses, including attorneys' fees. Athira Pharma, Inc. is a late clinical-stage biopharmaceutical company based in Washington. ATHIRA PHARMA: Faces Slyne Shareholder Suit in Washington Court --------------------------------------------------------------- Athira Pharma, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that the company was named as a defendant in a class action lawsuit alleging that purported issues with a doctoral research at WSU should have been disclosed in the company's IPO registration statement. Also on June 25, 2021, plaintiffs Timothy Slyne and Tai Slyne filed a putative securities class action lawsuit in the U.S. District Court for the Western District of Washington against the Company, Dr. Kawas, the company's Chief Financial Officer, and the same members of the company's board of directors and underwriters as in the Jawandha complaint, captioned "Slyne v. Athira Pharma, Inc. et al.," No. 2:21-cv-00864. The Slyne complaint asserts violations of Sections 11 and 15 of the Securities Act of 1933, alleging that purported issues with Dr. Kawas's doctoral research at WSU should have been disclosed in the company's IPO registration statement. The Slyne plaintiffs seek unspecified compensatory damages, reasonable costs and expenses, including attorneys' fees, and injunctive and other equitable relief. Athira Pharma, Inc. is a late clinical-stage biopharmaceutical company based in Washington. ATHIRA PHARMA: Faces Wang Shareholder Suit in Washington Court -------------------------------------------------------------- Athira Pharma, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that the company was named defendant in a class action lawsuit alleging they made materially false and misleading statements and omitted material adverse facts regarding the company's business. In June 25, 2021, plaintiffs Fan Wang and Hang Gao filed a putative securities class action lawsuit in the U.S. District Court for the Western District of Washington against the Company and the company's former Chief Executive Officer Dr. Leen Kawas, captioned "Wang v. Athira Pharma, Inc., et al.," No. 2:21-cv-00861. Plaintiffs Wang and Gao assert claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, alleging that the defendants made materially false and misleading statements and omitted material adverse facts regarding the company's business. Specifically, the Wang plaintiffs allege that the company failed to disclose to investors that certain research conducted by Dr. Kawas was allegedly tainted by scientific misconduct during her doctoral work at WSU, including the manipulation of data, and that as a result, the defendants' positive statements about the company's business, operations, and prospects were materially misleading. The Wang plaintiffs seek unspecified compensatory and punitive damages, and reasonable costs and expenses, including attorneys' fees. Athira Pharma, Inc. is a late clinical-stage biopharmaceutical company based in Washington. ATRIA MANAGEMENT: Khoshchin Wage-and-Hour Suit Goes to E.D. Cal. ---------------------------------------------------------------- The case styled MARYAM KHOSHCHIN, individually and on behalf of all others similarly situated v. ATRIA MANAGEMENT COMPANY, LLC and DOES 1 through 50, inclusive, Case No. 34-2022-00318414, was removed from the Superior Court of the State of California, County of Sacramento, to the U.S. District Court for the Eastern District of California on May 27, 2022. The Clerk of Court for the Eastern District of California assigned Case No. 2:22-cv-00916-TLN-KJN to the proceeding. The case arises from the Defendant's alleged failure to pay appropriate wages in violation of the California Labor Code and the California's Business and Professions Code. Atria Management Company, LLC is an operator of assisted senior living communities, headquartered in Louisville, Kentucky. [BN] The Defendant is represented by: Richard B. Lapp, Esq. Christopher A. Crosman, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 33500 Los Angeles, CA 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 E-mail: rlapp@seyfarth.com ccrosman@seyfarth.com - and – Phillip J. Ebsworth, Esq. SEYFARTH SHAW LLP 400 Capitol Mall, Suite 2350 Sacramento, CA 95814-4428 Telephone: (916) 448-0159 Facsimile: (916) 558-4839 E-mail: pebsworth@seyfarth.com BECKMAN COULTER: Figueroa Files Suit in Cal. Super. Ct. ------------------------------------------------------- A class action lawsuit has been filed against Beckman Coulter, Inc., et al. The case is styled as Ermelinda Figueroa, and on behalf of all others similarly situated v. Beckman Coulter, Inc., Does 1-50, Case No. 34-2022-00320014-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., May 16, 2022). The case type is stated as "Other Employment - Civil Unlimited." Beckman Coulter Inc. -- http://www.beckmancoulter.com/-- is a Danaher Corporation company that develops, manufactures and markets products that simplify, automate and innovate complex biomedical testing.[BN] The Plaintiff is represented by: Gregory Mauro, Esq. THE MAURO LAW FIRM APLC 790 E Colorado Blvd., Fl. 9 Pasadena, CA 91101-2193 Phone: 626-698-0048 Fax: 626-698-0049 Email: greg@maurolawfirm.net BEDFORD CHEESE: Tucker Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Bedford Cheese Shop Inc. The case is styled as Henry Tucker, on behalf of himself and all other persons similarly situated v. Bedford Cheese Shop Inc., Case No. 1:22-cv-04338 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bedford Cheese Shop -- https://bedfordcheeseshop.com/ -- is an old-fashioned cheese shop dedicated to providing the finest quality cheeses from around the world.[BN] The Plaintiff is represented by: Bradly G. Marks, Esq. THE MARKS LAW FIRM, PC 155 East 55th St., Ste. 6a New York, NY 10022 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: brad@markslawpc.com BERKELEY LIGHTS: Court Names Hagens Berman Lead Counsel in Ng Suit ------------------------------------------------------------------ In the case, VICTOR J. NG, Plaintiff v. BERKELEY LIGHTS, INC., et al., Defendants, Case No. 21-cv-09497-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the Northern District of California appoints Michael Damelio as the Lead Plaintiff and Hagens Berman Sobol Shapiro LLP as the Lead Counsel for the putative class. I. Background On Feb. 7, 2022, the Court received six competing motions for appointment as Lead Plaintiff in the putative securities class action. Only two contenders' motions remain pending: (1) tthe Berkeley Lights Investor Group ("BLI Investors"), represented by Bragar Eagel & Squire, P.C. and Bernstein Liebhard LLP; and (2) Mr. Damelio, represented by Hagens Berman Sobol Shapiro LLP. The Court finds this matter appropriate for disposition without oral argument and the matter is deemed submitted. II. Discussion The Private Securities Litigation Reform Act ("PSLRA") "instructs district courts to select as lead plaintiff the one 'most capable of adequately representing the interests of class members.'" "The 'most capable' plaintiff -- and hence the lead plaintiff -- is the one who has the greatest financial stake in the outcome of the case, so long as he meets the requirements of Rule 23." The Ninth Circuit interprets the PSLRA as establishing "a simple three-step process for identifying the lead plaintiff pursuant to these criteria." A. Notice Requirement Step One consists of meeting the PSLRA's notice requirement. In the case, the notice was published in Business Wire on the same day that the complaint was filed. This complied with the PSLRA's 20-day filing deadline, and Business Wire is a "widely circulated [inter]national business-oriented news reporting service," as required. The notice specifically announced the filing of the action against Berkeley Lights, Inc.; described the asserted claims under the Securities Exchange Act of 1934; described the class as encompassing "purchasers of Berkeley Lights, Inc. (NASDAQ: BLI) common stock between July 17, 2020 and Sept. 14, 2021, inclusive"; and notified the putative class members that any motion to be appointed lead plaintiff must be filed no later than Feb. 7, 2022. Accordingly, Step One's requirements are met. B. Largest Financial Stake in the Litigation Step Two consists of identifying the presumptive lead plaintiff. Mr. Damelio argues that he has the highest total losses: $124,348.14. In their opposition brief, BLI Investors respond that Mr. Damelio overstates his losses because he includes $31,236.85 from a joint account, and he has not established that he has standing or consent to pursue claims for this account. Without the losses from the joint account, BLI Investors assert that Mr. Damelio's financial interest drops to $93,111 -- below that of the BLI Investors. In reply, however, Mr. Damelio clarified that he shares the joint account with his wife. He therefore argues that he has a direct ownership interest in all losses flowing from the joint account. Judge Gilliam finds that the BLI Investors appear to acknowledge the sufficiency of Mr. Damelio's declaration because they do not repeat this argument in their sur-reply brief. He finds that Mr. Damelio has the largest financial stake, and is therefore the presumptive lead plaintiff. C. Typicality and Adequacy A presumptive lead plaintiff also has the burden of setting forth a prima facie case that he can satisfy the class representative requirements of Rule 23(a), typicality and adequacy. Mr. Damelio argues that he meets the adequacy and typicality requirements because like the rest of the proposed class, he purchased shares in BLI during the class period and suffered damages as a result of Defendants' false or misleading statements or omissions. There is no indication of any conflict between Mr. Damelio and other class members. The BLI Investors nevertheless raise several arguments that Mr. Damelio cannot satisfy the adequacy requirement of Rule 23. Judge Gilliam finds that (i) Mr. Damelio has provided sufficient background information addressing concern as to his adequacy as lead plaintiff; (ii) there does not appear to be a question that Mr. Damelio himself purchased Berkeley Lights common stock, and he confirmed in reply that he understands the scope of the putative class as currently drafted; and (iii) Mr. Damelio has provided a reasonable explanation for the phrasing of his prior certification, and has remedied any outstanding question about whether he has reviewed the complaint himself. Notwithstanding any technical errors, Mr. Damelio has met his burden of establishing that he satisfies the class representative requirements of typicality and adequacy at this stage. D. Appointment of Lead Counsel Mr. Damelio has moved for approval of his selection of Hagens Berman Sobol Shapiro LLP as lead counsel. Judge Gilliam defers to Mr. Damelio's choice of lead counsel because his choice is not "so irrational, or so tainted by self-dealing or conflict of interest, as to cast genuine and serious doubt on his willingness or ability to perform the functions of lead plaintiff." Hagens Berman has extensive experience as counsel in securities class actions. Judge Gilliam, thus, approves Mr. Damelio's selection of counsel. III. Conclusion Accordingly, Judge Gilliam grants Mr. Damelio's motion. All pending unwithdrawn motions are denied. Mr. Damelio is appointed as the Lead Plaintiff for the putative class, and Hagens Berman is approved as the Lead Counsel for the putative class. Judge Gilliam further sets a telephonic initial case management conference on June 14, 2022, at 2:00 p.m. All counsel will use the following dial-in information to access the call: Dial-In: 888-808-6929; Passcode: 6064255 For call clarity, parties will not use speaker phone or earpieces for these calls, and where at all possible, parties will use landlines. Judge Gilliam directs the parties to meet and confer and submit a joint case management statement by June 7, 2022. A full-text copy of the Court's May 25, 2022 Order is available at https://tinyurl.com/bdh3dtf5 from Leagle.com. BLINK HOLDINGS: Fails to Timely Pay Wages, Gregory Suit Claims -------------------------------------------------------------- RHYS GREGORY, individually and on behalf of others similarly situated, Plaintiff v. BLINK HOLDINGS, INC., d/b/a BLINK FITNESS, Defendant, Case No. 1:22-cv-03139 (E.D.N.Y., May 26, 2022) brings this class action complaint against the Defendant to recover damages for delinquent wage payments made to its workers pursuant to New York Labor Law. The Plaintiff was employed by the Defendant from approximately March 2020 until June 2020 as a non-exempt, hourly-paid maintenance worker at the Defendant's fitness center, where he would typically perform physical tasks for more than of 25% of his workday. The Plaintiff claims that the Defendant failed to pay him timely wages. Throughout his employment with the Defendant, he was compensated by the Defendant every other week or on a bi-weekly basis, added the Plaintiff. Blink Holdings, Inc. d/b/a Blink Fitness operates a fitness facility. [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, New York 11514 Tel: (516) 873-9550 BOOT BARN HOLDINGS: Faces Labor Suit in California Court -------------------------------------------------------- Boot Barn Holdings, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 26, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that in February 27, 2020, one employee, on behalf of himself and all other similarly situated employees, filed a class action lawsuit against the company, which includes claims for penalties under California's Private Attorney General Act, in the Sacramento County Superior Court, Case No. 34-2019-00272000-CU-OE-GDS, alleging violations of California's wage and hour, overtime, meal periods and rest breaks, and an alleged violation of the suitable seating requirement as per California Labor Law among other things. The complaint seeks an unspecified amount of damages and penalties. Boot Barn Holdings, Inc. lifestyle retail chain based in California. BP EXPLORATION: Court Grants in Part Bid to Dismiss Stephens Suit ----------------------------------------------------------------- In the case, RANDI STEPHENS v. BP EXPLORATION & PRODUCTION INC., ET AL., SECTION: "J"(1), Civil Action No. 17-4294 (E.D. La.), Judge Carl J. Barbier of the U.S. District Court for the Eastern District of Louisiana grants in part the Motion for Summary Judgment for Lack of Specific Causation Evidence filed by Defendants, BP Exploration & Production Inc. and BP America Production Company, BP p.l.c., collectively referred to as BP. I. Background The instant action is a "B3" case arising out of the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. B3 cases involve "claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant)." See In re Oil Spill by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *10 (E.D. La. Apr. 1, 2021). During the course of the MDL proceedings, this Court approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement. Id. at *2. The B3 plaintiffs either opted out of the class action settlement agreement or were excluded from its class definition. Id. at *10 n.3. In any event, "B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response." The Plaintiff was employed in the DWH oil spill response as a shoreline cleanup worker on the beaches of Fort Morgan, Alabama and Gulf Shores, Alabama for about four months. She allegedly performed beach cleanup work, picking up oil and tar balls. This work, Plaintiff alleges, exposed her to crude oil and chemical dispersants which caused Plaintiff to develop nasal congestion, nasal discharge, sinusitis, sore throat, upper respiratory infection, nausea, abdominal cramps and pain, eye burning, irritation, shortness of breath, cough, wheezing, headaches, dizziness, depression, mood disorder, anxiety, and insomnia. Plaintiff filed the instant action, and, subsequently, BP filed this motion for summary judgment. II. Discussion BP argues that because the Plaintiff has not submitted any expert proof on the required element of specific causation, her claims must be dismissed. The expert report from Dr. Cook is non-specific, and hence, does not address the nature of the Plaintiff's work on the spill response or the nature, duration, or type of exposure that he allegedly had to any particular toxin. In reply, the Plaintiff does not contest that Dr. Cook's report fails to address specific causation. Instead, he contends that the general causation expert report in conjunction with specific evidence of his exposure is sufficient to permit the jury to conclude that exposure to the toxicants in the oil and dispersants more likely than not caused the Plaintiff's alleged medical conditions. Specifically, the Plaintiff asserts, "when the medical conditions are either 'within the common knowledge of the jury' or 'contemporaneous and transient' general causation expert testimony along with specific evidence of exposure is all that is required." Thus, the question before the Court is whether, in the context of this particular case, specific causation requires an expert report and testimony. Judge Barbier holds that when the relationship between the chemical "and the complained-of injuries is 'within the layperson's common knowledge,' the general causation evidence is sufficient to meet the plaintiff's burden of proof with regard to summary judgment." Louisiana state courts have found that common issues such as "dehydration, overheating, exhaustion, mental anguish, fear, stress, anxiety, and depression" are within common knowledge. Generally, "medical expert testimony is not required to establish causation for temporary pain and suffering" because the nature of these injuries fall within the layperson's common knowledge. BP argues that the Plaintiff's reliance on Louisiana law's more relaxed rule of evidence is not proper, in a case controlled by maritime law. In Gowdy v. Marine Spill Response Corp., 925 F.3d 200, 206 (5th Cir. 2019) (citing Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004) (Sotomayor, J.)), the Fifth Circuit found that "expert testimony is not required in cases where the nature of the injury can be understood by lay factfinders based on ordinary knowledge and experience. In Gowdy, the court was faced with a question similar to the one before the Court: "When is expert medical testimony needed to survive summary judgment in a Jones Act negligence case?" The plaintiff alleged that, while he was employed as a seaman, he "injured his left foot when he stepped off the last rung of a ladder that was dangerously raised four feet off the floor." In finding that the plaintiff did not require expert testimony regarding his injury, the court reasoned that "the danger implicated by stepping down from a four-foot-tall ladder rung falls within ordinary understanding." Accordingly, the so called "relaxed rule" of evidence may apply to maritime cases when the nature of the alleged injury is within the common knowledge of lay persons. Next, Judge Barbier turns to an analysis of what injuries are, in fact, within the common knowledge of lay people. The Plaintiff alleges that the oil and dispersant caused her to develop nasal congestion, nasal discharge, sinusitis, sore throat, upper respiratory infection, nausea, abdominal cramps and pain, eye burning, irritation, shortness of breath, cough, wheezing, headaches, dizziness, depression, mood disorder, anxiety, and insomnia. Judge Barbier holds that without an expert opinion on specific causation, the Plaintiff cannot meet her burden of proof on her claims of sinusitis, upper respiratory infection, abdominal cramps and pain, mood disorder, and insomnia. These are neither medical conditions within the common knowledge of a lay person nor conditions classified as "transient" or "temporary." The remaining medical conditions are nasal congestion, nasal discharge, sore throat, nausea, eye burning, irritation, shortness of breath, cough, wheezing, headaches, dizziness, depression, and anxiety. The Court finds that these types of transient or temporary medical conditions are likely within the common knowledge of lay people, much like the irritant symptoms in Guidry v. Dow Chemical Co., No. 19-12233, 2021 WL 4460505, at *2 (E.D. La. Sept. 29, 2021), and the dehydration, overheating, exhaustion, mental anguish, fear, stress, anxiety, and depression that Louisiana courts have found within the common knowledge of lay people. Therefore, the Plaintiff does not require an expert on specific causation for these particular medical conditions. III. Conclusion Accordingly, BP's Motion for Summary Judgment is granted in part. The Plaintiff's claims are dismissed with prejudice except for the claims for nasal congestion, nasal discharge, sore throat, nausea, eye burning, irritation, shortness of breath, cough, wheezing, headaches, dizziness, depression, and anxiety. A full-text copy of the Court's May 24, 2022 Order & Reasons is available at https://tinyurl.com/48k6wu6p from Leagle.com. BP EXPLORATION: Court Grants in Part Bid to Dismiss Turner Suit --------------------------------------------------------------- In the case, MICHAEL DARNELL TURNER v. BP EXPLORATION & PRODUCTION INC., ET AL., SECTION: "J"(2), Civil Action No. 17-4210 (E.D. La.), Judge Carl J. Barbier of the U.S. District Court for the Eastern District of Louisiana grants in part the Motion for Summary Judgment for Lack of Specific Causation Evidence filed by Defendants BP Exploration & Production Inc. and BP America Production Company, BP p.l.c., collectively referred to as BP. I. Background The instant action is a "B3" case arising out of the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. B3 cases involve "claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant)" -- In re Oil Spill by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *10 (E.D. La. Apr. 1, 2021). During the course of the MDL proceedings, the Court approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement. The B3 plaintiffs either opted out of the class action settlement agreement or were excluded from its class definition. In any event, "B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response." The Plaintiff was employed in the DWH oil spill response as a shoreline cleanup worker on the beaches of Gulf Shores, Alabama; Theodore Alabama; and Dauphin Island, Alabama for approximately a year. He allegedly performed beach cleanup work, picking up oil and tar balls, as well as some decontamination work. This work, the Plaintiff alleges, exposed him to crude oil and chemical dispersants which caused him to develop hypertension, acute renal insufficiency, chronic kidney disease stage III, hematuria, nephrotic range proteinuria, chest pain, frontoparietal cerebrovascular accident, stroke, headaches, blindness, obstructive sleep apnea, shortness of breath, wheezing, depression, abdominal pain, diarrhea, nausea, vomiting, dizziness, decreased sense of smell, facial pain or sinus pain, nasal congestion/discharge, throat irritation, skin blistering, boils, skin dryness/flaking, inflammation, redness or swelling, itching, peeling, and scaling. The Plaintiff filed the instant action, and, subsequently, BP filed the motion for summary judgment. II. Discussion BP argues that because the Plaintiff has not submitted any expert proof on the required element of specific causation, his claims must be dismissed. The expert report from Dr. Cook is non-specific, and hence, does not address the nature of the Plaintiff's work on the spill response or the nature, duration, or type of exposure that he allegedly had to any particular toxin. In reply, the Plaintiff does not contest that Dr. Cook's report fails to address specific causation. Instead, he contends that the general causation expert report in conjunction with specific evidence of his exposure is sufficient to permit the jury to conclude that exposure to the toxicants in the oil and dispersants more likely than not caused his alleged medical conditions. Specifically, the Plaintiff asserts, "when the medical conditions are either 'within the common knowledge of the jury' or 'contemporaneous and transient' general causation expert testimony along with specific evidence of exposure is all that is required." Thus, the question before the Court is whether, in the context of this particular case, specific causation requires an expert report and testimony. Judge Barbier holds that when the relationship between the chemical "and the complained-of injuries is 'within the layperson's common knowledge,' the general causation evidence is sufficient to meet the plaintiff's burden of proof with regard to summary judgment." Louisiana state courts have found that common issues such as "dehydration, overheating, exhaustion, mental anguish, fear, stress, anxiety, and depression" are within common knowledge. Generally, "medical expert testimony is not required to establish causation for temporary pain and suffering" because the nature of these injuries fall within the layperson's common knowledge." BP argues that the Plaintiff's reliance on Louisiana law's more relaxed rule of evidence is not proper, in a case controlled by maritime law. In Gowdy v. Marine Spill Response Corp., 925 F.3d 200, 206 (5th Cir. 2019) (citing Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004) (Sotomayor, J.)), the Fifth Circuit found that "expert testimony is not required in cases where the nature of the injury can be understood by lay factfinders based on ordinary knowledge and experience. In Gowdy, the court was faced with a question similar to the one before the Court: "when is expert medical testimony needed to survive summary judgment in a Jones Act negligence case?" The plaintiff alleged that, while he was employed as a seaman, he "injured his left foot when he stepped off the last rung of a ladder that was dangerously raised four feet off the floor." In finding that the plaintiff did not require expert testimony regarding his injury, the court reasoned that "the danger implicated by stepping down from a four-foot-tall ladder rung falls within ordinary understanding." Accordingly, the so called "relaxed rule" of evidence may apply to maritime cases when the nature of the alleged injury is within the common knowledge of lay persons. Next, Judge Barbier turns to an analysis of what injuries are, in fact, within the common knowledge of lay people. The Plaintiff alleges that the oil and dispersant caused him to develop hypertension, acute renal insufficiency, chronic kidney disease stage III, hematuria, nephrotic range proteinuria, chest pain, frontoparietal cerebrovascular accident, stroke, headaches, blindness, obstructive sleep apnea, shortness of breath, wheezing, depression, abdominal pain, diarrhea, nausea, vomiting, dizziness, decreased sense of smell, facial pain or sinus pain, nasal congestion/discharge, throat irritation, skin blistering, boils, skin dryness/flaking, inflammation, redness or swelling, itching, peeling, and scaling. Judge Barbier holds that without an expert opinion on specific causation, the Plaintiff cannot meet his burden of proof on his claims of hypertension, acute renal insufficiency, chronic kidney disease stage III, hematuria, nephrotic range proteinuria, chest pain, frontoparietal cerebrovascular accident, stroke, blindness, obstructive sleep apnea, abdominal pain, decreased sense of smell, and facial pain or sinus pain. These are neither medical conditions within the common knowledge of a lay person nor conditions classified as "transient" or "temporary." The remaining medical conditions are headaches, shortness of breath, wheezing, depression, skin blistering, boils, skin dryness/flaking, inflammation, redness or swelling, itching, peeling, and scaling, diarrhea, nausea, vomiting, dizziness, nasal congestion/discharge, and throat irritation. Judge Barbier finds that these types of transient or temporary medical conditions are likely within the common knowledge of lay people, much like the irritant symptoms in Guidry and the dehydration, overheating, exhaustion, mental anguish, fear, stress, anxiety, and depression that Louisiana courts have found within the common knowledge of lay people. Therefore, the Plaintiff does not require an expert on specific causation for these particular medical conditions. III. Conclusion Accordingly, BP's Motion for Summary Judgment is granted in part. The Plaintiff's claims are dismissed with prejudice except for the claims for headaches, shortness of breath, wheezing, depression, skin blistering, boils, skin dryness/flaking, inflammation, redness or swelling, itching, peeling, and scaling, diarrhea, nausea, vomiting, dizziness, nasal congestion/discharge, and throat irritation. A full-text copy of the Court's May 24, 2022 Order & Reasons is available at https://tinyurl.com/3se97bv7 from Leagle.com. BP EXPLORATION: Court Grants in Part Bid to Dismiss Wallace Suit ---------------------------------------------------------------- In the case, PATTI WALLACE, on behalf of decedent, GUY WALLACE v. BP EXPLORATION & PRODUCTION INC., ET AL., SECTION: "J"(2), Civil Action No. 13-1039 (E.D. La.), Judge Carl J. Barbier of the U.S. District Court for the Eastern District of Louisiana grants in part the Motion for Summary Judgment for Lack of Specific Causation Evidence filed by Defendants BP Exploration & Production Inc. and BP America Production Company, BP p.l.c., collectively referred to as BP. I. Background The instant action is a "B3" case arising out of the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. B3 cases involve "claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant)," -- In re Oil Spill by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *10 (E.D. La. Apr. 1, 2021). During the course of the MDL proceedings, the Court approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement. The B3 plaintiffs either opted out of the class action settlement agreement or were excluded from its class definition. In any event, the B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response. The Plaintiff was employed in the DWH oil spill response as a shoreline cleanup worker on the beaches of Florida from about June 2010 to August 2010. He allegedly performed beach cleanup work, picking up oil and tar balls. This work, the Plaintiff alleges, exposed him to crude oil and chemical dispersants which caused him to develop urinary tract infections, kidney infections, respiratory infections, sinus infections, vision problems, bowel problems, stomach problems, oil burn on his right hand, skin rashes, body sores, and bladder cancer. The Plaintiff filed the instant action seeking a bench trial with respect to his claims of negligence under general maritime law. Subsequently, BP filed the motion for summary judgment. II. Discussion BP argues that because the Plaintiff has not submitted any expert proof on the required element of specific causation, her claims must be dismissed. The expert report from Dr. Cook is non-specific, and hence, does not address the nature of the Plaintiff's work on the spill response or the nature, duration, or type of exposure that Plaintiff allegedly had to any particular toxin. In reply, the Plaintiff does not contest that Dr. Cook's report fails to address specific causation. Instead, he contends that the general causation expert report in conjunction with specific evidence of his exposure is sufficient to permit the jury to conclude that exposure to the toxicants in the oil and dispersants more likely than not caused his alleged medical conditions. Specifically, the Plaintiff asserts, "when the medical conditions are either 'within the common knowledge of the jury' or 'contemporaneous and transient' general causation expert testimony along with specific evidence of exposure is all that is required." Thus, the question before the Court is whether, in the context of this particular case, specific causation requires an expert report and testimony. Judge Barbier holds that when the relationship between the chemical "and the complained-of injuries is 'within the layperson's common knowledge,' the general causation evidence is sufficient to meet the plaintiff's burden of proof with regard to summary judgment," citing Guidry v. Dow Chemical Co., No. 19-12233, 2021 WL 4460505, at *2 (E.D. La. Sept. 29, 2021). Louisiana state courts have found that common issues such as "dehydration, overheating, exhaustion, mental anguish, fear, stress, anxiety, and depression" are within common knowledge. Generally, "medical expert testimony is not required to establish causation for temporary pain and suffering" because the nature of these injuries fall within the layperson's common knowledge. BP argues that the Plaintiff's reliance on Louisiana law's more relaxed rule of evidence is not proper, in a case controlled by maritime law. In Gowdy v. Marine Spill Response Corp., 925 F.3d 200, 206 (5th Cir. 2019) (citing Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004) (Sotomayor, J.)), the Fifth Circuit found that "expert testimony is not required in cases where the nature of the injury can be understood by lay factfinders based on ordinary knowledge and experience. In Gowdy, the court was faced with a question similar to the one before the Court: "When is expert medical testimony needed to survive summary judgment in a Jones Act negligence case?" The plaintiff alleged that, while he was employed as a seaman, he "injured his left foot when he stepped off the last rung of a ladder that was dangerously raised four feet off the floor." In finding that the plaintiff did not require expert testimony regarding his injury, the court reasoned that "the danger implicated by stepping down from a four-foot-tall ladder rung falls within ordinary understanding." Accordingly, the so called "relaxed rule" of evidence may apply to maritime cases when the nature of the alleged injury is within the common knowledge of lay persons. Next, Judge Barbier turns to an analysis of what injuries are, in fact, within the common knowledge of lay people. The Plaintiff alleges that the oil and dispersant caused him to develop urinary tract infections, kidney infections, respiratory infections, sinus infections, vision problems, bowel problems, stomach problems, oil burn on his right hand, skin rashes, body sores, and bladder cancer. (Rec. Doc. 38-1, at 2). Plaintiff contends that his medical conditions are comparable to those in Guidry. Judge Barbier holds that without an expert opinion on specific causation, the Plaintiff cannot meet his burden of proof on his claims of urinary tract infections, kidney infections, respiratory infections, sinus infections, vision problems, bowel problems, stomach problems, and bladder cancer. These are neither medical conditions within the common knowledge of a lay person nor conditions classified as "transient" or "temporary." The remaining medical conditions are the oil burn on his right hand, skin rashes, and body sores. Judge Barbier finds that these types of transient or temporary medical conditions are likely within the common knowledge of lay people, much like the irritant symptoms in Guidry and the dehydration, overheating, exhaustion, mental anguish, fear, stress, anxiety, and depression that Louisiana courts have found within the common knowledge of lay people. Therefore, the Plaintiff does not require an expert on specific causation for these particular medical conditions. III. Conclusion Accordingly, BP's Motion for Summary Judgment is granted in part. The Plaintiff's claims are dismissed with prejudice except for the claims for oil burn on his right hand, skin rashes, and body sores. A full-text copy of the Court's May 24, 2022 Order & Reasons is available at https://tinyurl.com/3nwyyxuf from Leagle.com. BP VENTURE MANAGEMENT: Noel Files Suit in Cal. Super. Ct. --------------------------------------------------------- A class action lawsuit has been filed against BP Venture Management Inc., et al. The case is styled as Kaitlyn Noel, and on behalf of all others similarly situated v. BP Venture Management Inc., Does 1–10, Case No. 34-2022-00320637-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., May 26, 2022). The case type is stated as "Other employment – Civil Unlimited." BP Venture Management Inc. is categorized under Business Consultants.[BN] The Plaintiff is represented by: Kane Moon, Esq. MOON & YANG, APC 1055 W 7th St., Ste. 1880 Los Angeles, CA 90017-2529 Phone: 213-232-3128 Fax: 213-232-3125 Email: kane.moon@moonyanglaw.com BRIGHT HEALTH GROUP: Faces Marquez Securities Suit in NY Court -------------------------------------------------------------- Bright Health Group, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that in January 6, 2022, a putative securities class action lawsuit was filed against the company and certain of its officers and directors in the Eastern District of New York. The case is captioned "Marquez v. Bright Health Group, Inc. et al.," 1:22-cv-00101 (E.D.N.Y.) The lawsuit alleges, among other things, that the company made materially false and misleading statements regarding its business, operations, and compliance policies, which in turn adversely affected our stock price. Bright Health Group, Inc. healthcare company based in Minnesota. CALIFORNIA CEMETERY: Harp Suit Remanded to Kern County Super. Court ------------------------------------------------------------------- In the case, SCOTT HARP, on behalf of himself and all others similarly situated, Plaintiffs v. CALIFORNIA CEMETERY AND FUNERAL SERVICES, LLC, a Delaware Corporation and Does 1 to 100 inclusive, Defendants, Case No. 1:21-cv-01118-JLT-BAK (E.D. Cal.), Judge Jennifer L. Thurston of the U.S. District Court for the Eastern District of California grants Harp's motion to remand the case to the Superior Court of the State of California for the County of Kern. I. Introduction Mr. Harp, acting on his own behalf and on the behalf of similarly situated employees, initiated suit in state court for violations of the California Labor Code and California Business and Professions Code by his former employer, California Cemetery and Funeral Services, LLC ("CCFS"). CCFS removed the case to federal court, asserting diversity jurisdiction. Harp moved to remand the case to state court because it contends CCFS has not satisfied the amount in controversy requirement for diversity jurisdiction. II. Background Mr. Harp filed his complaint in the Superior Court of California in Kern County, alleging CCFS violated sections of the California Labor Code Sections 226, 2699, 2751 and California Business and Professions Code Section 17200 for failure to provide accurate wage statements and written contracts to employees. He brought these claims on behalf of himself, all similarly situated employees, and as a representative for the California Labor and Workforce Development Agency under the Private Attorneys General Act ("PAGA"), Cal. Lab. Code Section 2699. On July 23, 2021, CCFS filed a notice of removal. On Aug. 23, 2021, Harp filed a motion to remand the case, arguing CCFS failed to adequately establish the amount in controversy for diversity jurisdiction. He also seeks an award of attorneys' fees associated with its motion, arguing CCFS lacked an objective basis for removal. In the notice of removal, CCFS alleged federal subject matter jurisdiction existed under two avenues of diversity jurisdiction: 28 U.S.C. Section 1332 for Harp's individual claims and the Class Action Fairness Act ("CAFA") for all employees' claims. In opposition to the motion to remand, however, CCFS did not provide any factual or legal basis for jurisdiction under CAFA and only maintains diversity jurisdiction exists under Section 1332. CCFS estimates the amount in controversy to be $76,200, attributing $70,000 to attorneys' fees. Because CCFS no longer asserts subject matter jurisdiction under CAFA, the only issue before the Court is whether Harp's individual claims for relief satisfy the jurisdictional requirements under Section 1332. III. Discussion Mr. Harp does not dispute the parties are completely diverse but asserts that the amount in controversy is not satisfied. CCFS maintains the case exceeds the amount in controversy threshold because the civil penalties and damages flowing from the alleged Labor Code, Business and Professions Code, and PAGA claims amount to $6,200 and attorneys' fees total $70,000. Harp does not contest the $6,200 amount but argues CCFS' calculation of attorneys' fees improperly aggregates all fees to a single plaintiff. Therefore, the parties' dispute turns on whether CCFS may attribute all attorneys' fees to a single plaintiff in a PAGA action. A. Calculating Attorneys' Fees for the Amount in Controversy under PAGA CCFS has not provided a pro rata share of attorneys' fees associated with Harp's individual claims. Instead, it argues that two recent decisions from the California Court of Appeals permit CCFS to aggregate attorneys' fees to meet the amount in controversy: Robinson v. S. Ctys. Oil Co., 53 Cal. App. 5th 476 (2020), and Starks v. Vortex Industries, Inc., 268 Cal.Rptr.3d 274 (Cal. Ct. App. 2020) (ordered unpublished). According to CCFS, Robinson and Starks stand for the proposition that "when multiple employees incur legal fees, if they do so in separate suits, only one of them can recover their fees under Section 3699(g)(1) because only one of them could ever successfully bring a PAGA claim." Under this reasoning, CCFS concludes that prorating attorneys' fees "would result in an absurdity" because Harp is the only named plaintiff and therefore, no other aggrieved employees could recover attorney fees under PAGA. CCFS contends: "That cannot be the law." Judge Thurston holds that neither Robinson nor Starks address aggregation of attorneys' fees for the purpose of determining the amount in controversy for federal jurisdiction. Furthermore, the reasoning of Robinson and Starks does not undermine the Ninth Circuit's precedent prohibiting the aggregation of fees under PAGA actions. The opinions in Robinson and Stark rest on the nature of PAGA actions as representative actions on behalf of the state interest. District courts have also rejected similar challenges to the Ninth Circuit precedent prohibiting aggregation under PAGA. Because CCFS provides no alternative basis to calculate attorneys' fees apart from aggregation, and because it concedes Harp's individual claims only amount to $6,200, CCFS has not met its burden to establish the amount in controversy exceeds $75,000. Thus, the Court lacks subject matter jurisdiction and remands the case to state court. B. Harp's Motion for Attorneys' Fees Mr. Harp requests the Court awards attorneys' fees associated with his motion to remand. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal. Absent unusual circumstances, courts may award attorneys' fees under Section 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied. The defendant lacks an objectively reasonable basis for removal when the law compelling remand is well established. Mr. Harp requested a total fee award of $9,035. Harp's attorney, Gregg Lander, submitted a declaration to support the request and explained his billable rate is $695 per hour. He declared he spent nine hours researching and drafting the initial motion and anticipated four hours for drafting the reply and attending the hearing. However, the Court did not hold a hearing to resolve this motion. Because Harp did not delineate how much time he spent on the reply brief, Judge Thurston does not find sufficient support to award fees associated with the reply. She, in her discretion, finds the billable rate of $695 and nine hours spent drafting the motion reasonable and grants an award of $6,255 in attorneys' fees. IV. Conclusion & Order For the reasons she set forth, Judge Thurston grants Harp's motion to remand and grants Harp's request for attorneys' fees associated with this motion in the amount of $6,255. The action is remanded to the Superior Court of California in Kern County. The Clerk of Court is directed to close the case. A full-text copy of the Court's May 24, 2022 Order is available at https://tinyurl.com/3crhxu26 from Leagle.com. CALIFORNIA: Bid for Discovery in Peyton v. HDSP Partially Granted ----------------------------------------------------------------- In the case, LEE EDWARD PEYTON, Plaintiff v. BRIAN KIBLER, et al., Defendants (Case No. 2:21-cv-0719 JAM KJN P) (E.D. Cal.), Magistrate Judge Kendall A. Newman of the U.S. District Court for the Eastern District of California partially grants the Plaintiff's motion to compel discovery, and grants modification of the scheduling order. I. Plaintiff's Allegations The Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. Section 1983. The case proceeds on the Plaintiff's complaint against Defendants Kibler, Pickett, Peery, and Pannu for their alleged failure to protect the Plaintiff in violation of the Eighth Amendment by causing plaintiff to be exposed to COVID-19 "during his entire confinement" at High Desert State Prison ("HDSP"). The Plaintiff alleges that despite his verbal complaints to correctional officers and other prison staff, as well as multiple grievances and letters alerting the Defendants to such health and safety violations, numerous correctional officers and porters at HDSP continued to serve breakfast and dinner meals without wearing masks over their mouths and noses. Indeed, the Plaintiff sets forth specific instances from Oct. 17, 2020, through April 18, 2021,2 in which he alleges he was served meals by officers and porters who were not properly wearing masks. The Plaintiff contracted COVID-19 twice, and was fearful he would contract it again. In addition, the Plaintiff alleges that Defendants Kibler, Pickett and Peery had actual knowledge of the alleged hazardous conditions yet tolerated a deliberately indifferent policy and custom of exposure and spreading of COVID-19, and refused to take reasonable measures to prevent Defendant Pannu and other officers and porters from handling and serving meals without properly wearing face masks covering their mouths and nostrils. The Plaintiff seeks money damages and injunctive relief, including an order enjoining the Defendants from continuing their policy and custom of serving meals without face masks covering the servers' mouths and noses. II. Plaintiff's Motion to Compel The Plaintiff seeks to compel production of documents and answers to interrogatories. A. Scope of Discovery Judge Newman is not persuaded by the Defendants' argument that the Plaintiff's claims end on the day he contracted COVID-19. It is public knowledge that it is possible to be reinfected with COVID-19. Thus, the Plaintiff's discovery requests are not as narrow as the Defendants contend, and their objections on such bases are overruled. B. Unclean Hands The Plaintiff objects that the Defendants violated his rights when they used his medical records to oppose his motion for preliminary injunction and case-related sanctions to discuss his infection with COVID-19. However, the Plaintiff's objection is overruled because his complaint alleged he had been infected with COVID-19 on two occasions, thus putting his infection at issue in the public record. Moreover, the Defendants were entitled to rebut plaintiff's claim that he had been infected twice, when at his deposition he confirmed he was infected only once at HDSP. C. Request for Production of Documents The Plaintiff seeks to compel further responses to Request for Production, Set One, Requests Nos. 3 to 14: a. RPD No. 3: All surveillance video that evidence, mention, or refer to, or footage depicting the interior of Facility B, building 4, during periods of time when morning and evening meals are serving during the period of October 2020 through May 30, 2021, including but not limited to HDSP records, reports, statements and other investigative materials, and documents relating to prisoner grievances and including responses to such grievances prepared by HDSP staff in connection with the surveillance video footage during the period between October 2020 and May 30, 2021. b. RPD No. 4: All documents that evidence, mention, or refer to AVSS evidence requests or otherwise requests to review audio and/or video recordings in connection with HDSP appeal log numbers 50547, 55703, 65272, 77010, 82385, 94408, 100835, 103062, and 108658, including but not limited to records, reports, statements and other investigative materials and documents relating to subsequent inmate and staff discipline, if any, relative to these appeal log numbers. c. RPD No. 8: All documents that evidence, mention, or refer to, including but not limited to, any request or directive to place a litigation hold or to preserve AVSS footage in connection with HDSP 602-appeal log numbers 50547, 55703, 65272, 77010, 82385, 94408, 100835, 103062, and 108658, including but not limited to any emails, records, reports, statements and other investigative materials and documents relating to the personnel who reviewed these appeals at HDSP. d. RPD No. 5: All documents that evidence, mention, or refer to, bed moves facilitated on Facility B, building 4, during period between Nov. 11, 2020 and Nov. 15, 2020 at HDSP. e. RPD No. 6: All documents that evidence, mention, or refer to, the housing roster for Facility B, building 4, during the period between Nov. 1, 2020 and Nov. 30, 2020 at HDSP. f. RPD No. 7: All documents that evidence, mention, or refer to, including but not limited to inmate time-keeping logs relative to porters assigned on second and third watch on Facility B, building 4, during the period between October 2020 and May 30, 2021, at HDSP. g. RPD No. 9: All documents that evidence, mention, or refer to, Covid-19 infections to both staff and inmates on Facility B during the month of November 2020, including but not limited to medical records, reports, evaluations, statements and other materials and documents relating to the massive Covid-19 outbreak on Facility B in November 2020 at HDSP. h. RPD No. 10: All documents that evidence, mention, or refer to, non-compliance with masking protocols and social distancing requirements during the period between October 2020 and May 30, 2021 on Facility B, including but not limited to records, reports, statements and other investigative materials and documents relating to the non-compliance tracking log maintained by HDSP Employee Relations Officer and subsequent inmate and staff discipline, if any. i. RPD No. 11: All documents that evidence, mention, or refer to, inmate deaths as a result of Covid-19 at HDSP. j. RPD No. 12: All documents written or created since October 2020, that contain, mention, construe, or refer to, any inspection, inquiry or complaint about safety conditions or the risk of Covid-19 infection at HDSP, including but not limited to, whether formal or informal, official or unofficial, including inmate, staff and civilian grievances, complaints and appeals, including responses to such documents prepared by HDSP staff or its agents, including inmate lawsuits against HDSP relative to Covid-19. k. RPD No. 13: All other documents, items of evidence, or sworn or unsworn statements or affidavits that relate to the allegations made in Plaintiff's complaint, including but not limited to, records, reports, statements and other investigative materials and documents relating to Plaintiff's Nov. 20, 2020 and Jan. 17, 2021 letters to Defendant Kibler, including any responses to such documents prepared by Kibler and/or inmate and staff discipline, if any. m. RPD No. 14: All documents that contain, mention, construe, or refer to any insurance agreement or arrangement to which an insurance company or other person or entity will guaranty, act as a surety for, or otherwise bear any responsibility for litigating this action, including, but not limited to paying the Defendants' attorney's fees, costs, or out-of-pocket expenses, or paying for any monetary or injunctive relief ordered as part of a court or consent judgment. Judge Newman holds that (i) the Plaintiff's request for inmate grievances in RPD No. 3 is unclear, so his motion to compel discovery of inmate grievances from October 2020 to May 30, 2021; (ii) the Defendants' responses to RPD Nos. 4 and 8 are insufficient as to appeals log nos. 94408 and 55703, so they will supplement their responses to set forth what efforts they took to locate the responsive documents; (iii) RPD No. 5 is not relevant to the Plaintiff's claim, so no further production is required; (iv) the housing roster information (RPD No. 6) is necessary for the Plaintiff to identify witnesses and must be disclosed to him; and (v) the Defendants will produce to the Plaintiff the logs bearing the inmate porters' names for the second and third watch for the time frame Oct. 17, 2020, through May 27, 2021 (RPD No. 7). Judge Newman also holds that (i) the Defendants' objection that RPD No. 9 is overbroad is sustained; (ii) the Defendants will produce, for in camera review, copies of the biweekly reports (RPD No. 10) provided to the Plaintiffs' class counsel and the federal receiver in Plata for HDSP for the time frame Oct. 17, 2020, to May 27, 2021; (iii) he does not find such inmate deaths (RPD No. 11) relevant to the Plaintiff's claims asserted; and (iv) the Plaintiff's Request No. 12 is overbroad, both as to time because it is not limited in time, and as to subject matter because the request is not narrowly tailored to the issues of the case. Judge Newman further finds that (i) the Defendants are directed to produce for in camera review those unredacted "reports concerning non-compliance observed on the Audio/Video Surveillance System, reports from supervisors and managers, and correspondence," solely for Building 4, Facility B, HDSP, for the time frame Oct. 17, 2020 to Nov. 20, 2020 (RPD No. 14), and solely as to those reports or complaints that face masks were not being properly worn during meal service; and (ii) he denies the Plaintiff's motion to compel further response to RPD No. 14 because he cannot compel the Defendant to produce documents that cannot be located after a reasonable inquiry and diligent search. D. Interrogatories Defendant Pickett's Response to Interrogatory Nos. 6 & 9: a. No. 6: Describe what you did, if anything, to ensure staff and inmates followed face covering and physical distancing requirements in effect during the time period between March 2020 and May 30, 2021, during your employment as acting Warden and Chief Deputy Warden at HDSP. b. No. 9: Describe any actions you took in response to the allegations of staff and inmate noncompliance with face covering and physical distancing requirements at HDSP made by Plaintiff relating to events during the time period between October 2020 and May 30, 2021, at HDSP. Judge Newman opines that the Defendants' objection that the interrogatories are overbroad as to time and not relevant are overruled. However, she says, the Defendants' objections that the interrogatory is compound and overbroad in scope because they were not limited to Facility B where the Plaintiff was housed, are sustained. Moreover, although the Plaintiff contends Pickett did not respond as to actions Pickett personally took, Defendant Pickett, Chief Deputy Warden, holds a supervisory position, and set forth efforts he took as a supervisor to ensure compliance with COVID-19 protocols. If Defendant Pickett has an additional response applicable to the time frame Nov. 11, 2020, to May 27, 2021, solely during meal service in building 4, Facility B at HDSP, Defendant Pickett will supplement his responses to interrogatories Nos. 6 & 9. Defendant Kibler's Responses to Interrogatory Nos. 6 & 7: a. No. 6: Describe what you did, if anything, to ensure that HDSP staff followed the face covering and physical distancing requirement policies in effect during the time period between October 2020 and May 30, 2021, during your employment as acting Warden at HDSP. b. No. 7: Describe what you did, if anything, to ensure that HDSP inmates followed the face covering and physical distancing requirement policies in effect during the time period between October 2020 and May 30, 2021, during your employment as acting Warden at HDSP. Judge Newman opines that the Defendants' objection that the interrogatories are overbroad as to time and not relevant are overruled. She says, the Defendants' objections that the interrogatory is compound and overbroad in scope because they were not limited to Facility B where plaintiff was housed, are sustained. Moreover, although the Plaintiff contends Kibler did not respond as to actions Kibler personally took, Defendant Kibler, Warden of HDSP, holds a supervisory position, and set forth efforts he took as a supervisor to ensure compliance with COVID-19 protocols. If Defendant Kibler has an additional response applicable to the time frame Nov. 11, 2020, to May 27, 2021, solely related to face mask wearing during meal service in building 4, Facility B at HDSP, Defendant Kibler will supplement his responses to interrogatories Nos. 6 & 9. Defendant Pannu's Responses to Interrogatory Nos. 5, 6 & 7: a. No. 5: Please describe in as much detail as possible the complete circumstances surrounding you and porters under your supervision being captured on HDSP surveillance footage depicting the interior of Facility B, building 4, during morning and dinner meals, serving meals without wearing masks covering your mouths and/or noses during the time between February 2021 and May 30, 2021. b. No. 6: What did you do, if anything, after learning that you and porters were captured on HDSP surveillance footage on Facility B building 4, serving breakfast and dinner meals without wearing a mask covering your mouths and noses during the period of time between February 2021 and May 30, 2021. c. No. 7: What did you do, if anything, to ensure fellow staff and inmates followed face covering and physical distancing requirements in effect during the period of time between February 2021 and May 30, 2021, during your employment as a correctional officer of HDSP. Judge Newman holds that the Defendants' objection that No. 7 is not relevant is overruled. Defendant Pannu will respond to interrogatory No. 7 as to his employment in building 4 at HDSP from Feb. 2021 to May 27, 2021. Defendant Peery's Responses to Interrogatory Nos. 4, 5 & 9: a. No. 4: Please describe in as much detail as possible, if you, as the personnel who reviewed CDCR 602 appeal/grievance HDSP log numbers 77010, 82385, 94408, 100835, 103062 and 108658, at the time acknowledged that the grievances placed you on notice that the events were captured by video surveillance, and that the policy in place in 2020-2021 required the video to be preserved for a longer period since staff misconduct was alleged. b. No. 5: Describe what you did, if anything, after learning that staff and porters were captured on HDSP surveillance footage depicting the interior of Facility B, building 4, during morning and dinner meals, serving meals without wearing masks covering their mouth and nose during the time period between October 2020 and May 30, 2021. c. No. 9: Describe what you did, if anything, to ensure staff and inmates followed face covering and physical distancing requirements in effect during the time period between March 2020 and May 30, 2021, during your employment as acting Chief Deputy Warden and Associate Warden of HDSP. Judge Newman opines that the Defendants' objection that the interrogatories are overbroad as to time are overruled. No further response to Interrogatory No. 4 is required. As to interrogatory No. 5, despite the objections, Defendant Peery provided a response as to what actions were taken. However, if defendant Peery has an additional response applicable to the time frame Jan. 7, 2021, to May 27, 2021, solely related to face mask wearing during meal service in building 4, Facility B at HDSP, Defendant Peery will supplement his responses to interrogatory Nos. 5 and 9. III. Plaintiff's Motion for Sanctions The Plaintiff maintains that the Court should view the Defendants' responses as a failure to answer, and impose sanctions on the Defendants, including issuing a finding that the Plaintiff has made a prima facie showing as to paragraphs 11-39 of the complaint, and order a judgment awarding monetary sanctions for the Defendants' alleged abuse of the discovery process. Judge Newman does not find that the Defendants failed to respond to discovery requests in a meaningful manner. While the Court overruled the Defendants' objection that the Plaintiff's claims ended on Nov. 20, 2020, the date the Plaintiff was infected with COVID-19, Judge Newman does not find the Defendants' position was unreasonable or taken in bad faith. And, despite lodging objections, the Defendants provided responsive documents and responses to interrogatories, with the exception of Defendant Pannu. With respect to reasonable expenses, the Court may apportion expenses if a motion is granted in part and denied in part. To the extent Plaintiff also seeks attorney fees, he may not seek attorney's fees or reimbursement for fees based on his estimate of the time he invested in preparing his motion to compel. IV. Motion to Strike The Plaintiff filed a document entitled "Commercial Notice Appointment of Fiduciary Debtor." He claims to have unilaterally appointed defense counsel as a fiduciary under Internal Revenue Code sections 6036 and 6903. The Defendants move to strike the notice as immaterial and impertinent to the Plaintiff's Eighth Amendment allegations pled herein, citing Fed. R. Civ. P. 12(f), and argue that the notice may result in prejudice to the Defendants. The Plaintiff's "Commercial Notice" is disregarded. Judge Newman orders that the Plaintiff will refrain from filing any further documents related to the Uniform Commercial Code in the action. Failure to comply with this order may result in the imposition of sanctions, including a recommendation that the action be dismissed based on a failure to comply with court orders. V. Motion to Modify Scheduling Order The Plaintiff moves to extend the discovery deadline, and now moves to modify the scheduling order. The Defendants object that discovery should not be reopened in toto because such extension is not required for the purpose of corresponding with putative inmate witnesses, and because the Plaintiff has already served multiple sets of discovery and was not diligent about serving other sets prior to the Court's deadline. In light of the finding that the Plaintiff's claims did not expire when he was first diagnosed with COVID-19, and because the Defendants are being required to provide additional discovery, Judge Newman finds good cause to modify the discovery deadline to provide for responses as ordered herein, and for the Court to conduct its in camera review. She agrees that it is not appropriate to fully reopen discovery. Rather, the Plaintiff is granted a period of time to review the Defendants' additional responses and seek further court intervention if such responses are not satisfactory. In light of this Order, it appears that the Defendants' motion for summary was prematurely filed and should be vacated without prejudice. The Defendants should refrain from refiling such motion until the discovery disagreements are resolved. VI. Disposition Accordingly, Judge Newman partially grants the Plaintiff's motion to compel. Thirty days from the date of the Order, the Defendants shall: (a) electronically submit the surveillance video from Feb. 10, 2021, through May 30, 2021, during meal service in building 4 at HDSP, sought in RPD No. 3, for in camera review to kjnorders@caed.uscourts.gov. (b) produce for in camera review any staff complaint filed against Defendant Pannu claiming Pannu was not properly wearing his face mask while Pannu was serving meals in Building 4 at HDSP, from Oct. 17, 2020, through May 27, 2021 (RPD Nos. 3, 10); if no such staff complaint was filed, the Defendants will so state. (c) supplement their responses to RPD Nos. 4 & 8 to set forth what efforts were taken to locate the responsive documents as to appeals log nos. 94408 and 55703. If the "California Department of Corrections and Rehabilitation Form 602 Audio Video Surveillance System" referred to in appeal log no. 55703 cannot be located, the Defendants will so state. (d) produce to the Plaintiff the redacted housing rosters for Facility B, building 4, at HDSP for Nov. 1, 2020, and Nov. 30, 2020 (RPD No. 6). (e) produce, for in camera review, copies of the biweekly reports provided to the Plaintiffs' class counsel and the federal receiver in Plata for HDSP for the time frame Oct. 17, 2020, to May 27, 2021 (RPD No. 10). (f) produce for in camera review those unredacted "reports concerning non-compliance observed on the Audio/Video Surveillance System, reports from supervisors and managers, and correspondence," reviewed by defendant Kibler, solely for Building 4, Facility B, HDSP, for the time frame Oct. 17, 2020, to Jan. 21, 2021, and solely as to those reports or complaints that face masks were not being properly worn during meal service. (RPD No. 13.) For the documents produced to the Plaintiff, the Defendants will serve the Plaintiff with supplemental responses and file certifications with the Court as ordered. For the documents submitted for in camera review, the Defendants will submit the documents to kjnorders@caed.uscourts.gov. (g) Defendant Pannu will respond to interrogatory No. 7 as to his employment in building 4 at HDSP from February 2021 to May 27, 2021. (h) In light of the Court overruling the Defendants' narrow view of the scope of discovery, if additional responses applicable to the time frame Nov. 11, 2020, to May 27, 2021, solely as to meal service in building 4, Facility B at HDSP, are appropriate, the Defendants will supplement their responses to interrogatories as identified. In all other respects, Judge Newman denies (i) the Plaintiff's motion to compel, (ii) the Plaintiff's motion for sanctions and declines to award expenses; and (iii) the Defendants' motion to strike. The Clerk of the Court will mark the Plaintiff's "Commercial Notice" as disregarded. Judge Newman (i) partially grants the Plaintiff's motion to extend discovery and (ii) grants the Plaintiff's motion to modify the scheduling order. Discovery is extended to Aug. 1, 2022, for the sole purpose of resolving the discovery requests at issue the dispositive motions deadline is extended to Oct. 1, 2022; in all other respects the terms of the Oct. 21, 2021 discovery and scheduling order remain the same. The Defendants' motion for summary judgment is vacated. The parties will refrain from renewing or filing motions for summary judgment until after all discovery disputes have been resolved. A full-text copy of the Court's May 25, 2022 Order is available at https://tinyurl.com/y2t649yk from Leagle.com. CITADEL SALISBURY: Bid to Dismiss Hooker Class Suit Granted in Part ------------------------------------------------------------------- In the case, SONYA HOOKER, SYBIL RUMMAGE, DONNA DEAL, KENNETH MICHAEL DEAL, and BETTY DEAL, individually and on behalf of a class of those similarly situated, Plaintiffs v. THE CITADEL SALISBURY LLC, SALISBURY TWO NC PROPCO LLC, ACCORDIUS HEALTH LLC, THE PORTOPICCOLO GROUP, LLC, SIMCHA HYMAN, and NAFTALI ZANZIPER, Defendants, Case No. 1:21-cv-00384 (M.D.N.C.), Judge Thomas D. Schroeder of the U.S. District Court for the Middle District of North Carolina issued a Memorandum Opinion and Order granting in part and denying in part: 1. the Plaintiffs' motion to amend the complaint; and 2. the Defendants' motion to dismiss the complaint. I. Introduction The class action lawsuit seeks economic and emotional distress damages arising out of alleged nursing home understaffing prior to and through the COVID-19 pandemic. The Plaintiffs are residents of The Citadel Salisbury nursing home: Sybil Rummage, along with her sponsor, Sonya Hooker; and Betty Deal, along with her sponsors Donna Deal and Kenneth Michael Deal. Defendants The Citadel Salisbury, LLC; Salisbury Two NC Propco, LLC; Accordius Health, LLC; The Portopiccolo Group, LLC; Simcha Hyman; and Naftali Zanziper, move to dismiss, or alternatively, to stay the action, and to strike portions of the complaint. The Plaintiffs have responded, opposing the motions, and the Defendants have filed replies. Fifteen days after the Defendants filed their reply brief in support of their motion to dismiss, the Plaintiffs moved to amend the complaint to, among other things, add multiple parties and claims, withdraw one claim, and augment certain allegations. The Plaintiffs have responded, opposing the motion, and the Defendants have replied. II. Background Resident Plaintiffs Sybil Rummage and Betty Deal are residents of a nursing home facility located at 710 Julian Road. When each Plaintiff entered the facility prior to 2020, it was known as "Salisbury Center" and was owned and operated by Genesis Healthcare. When they arrived at Salisbury Center, the Resident Plaintiffs executed admission agreements outlining the care and basic services they should expect to receive. Sponsor Plaintiffs Sonya Hooker, Donna Deal, and Kenneth Michael Deal are family members who sponsor and assist the Resident Plaintiffs. On Feb. 1, 2020, Salisbury Center was sold, and operational control was transferred to The Citadel. The services and care at Salisbury Center had deteriorated as Genesis fought financial trouble, and conditions grew worse once The Citadel took over. Residents experienced various problems from alleged chronic understaffing as part of the Defendants' business model, such as failures to provide necessary medication and care to the residents and to adequately communicate with sponsors. The Plaintiffs suffered general emotional distress because of these failures. According to the Centers for Medicare and Medicaid Services ("CMS"), during the time of The Citadel's ownership, the quality rating of the facility declined from one to zero out of five stars. The Citadel was eventually "subject to more frequent inspections, escalating penalties, and potential termination from Medicare and Medicaid" as part of the state's "Special Focus Facility" program for nursing home facilities with a "history of serious quality issues." The Citadel is a limited liability company organized under North Carolina law and holds a license with the State of North Carolina, Department of Health and Human Services, Division of Health Services Regulation, to operate as a for-profit combination skilled nursing facility and adult care home. Defendant Salisbury Two NC Propco, LLC is a limited liability company organized under North Carolina law and owns the property where the facility is operated. Defendant Accordius is a limited liability company organized under the laws of the State of New York and provides "management" services to The Citadel. Portopiccolo is a limited liability company organized under New Jersey law and provides "back office services" to The Citadel. The sole members and owners of all limited liability companies involved are Simcha Hyman and Naftali Zanziper. Beginning when The Citadel assumed operations, the Plaintiffs allege, The Citadel was purposefully and consistently staffed inadequately such that it was unable to provide the services required for the safety and well-being of its residents. The Plaintiffs' original complaint brings four claims for relief: (1) breach of contract, (2) violation of the North Carolina Unfair Trade Practices Act ("UDTPA"), N.C. Gen. Stat. Section 71-1.1., (3) breach of fiduciary duty, and (4) negligent infliction of emotional distress ("NIED"). The proposed amended complaint seeks to withdraw the breach of fiduciary duty claim, add a negligence claim, and add several parties and other Defendant-related facilities. The Plaintiffs seek damages reflecting payments they made and disgorgement of Medicare or Medicaid payments made on their behalf "reflecting the reasonable value of the staffing hours they were entitled to have receive and did not receive." The Plaintiffs allege class action treatment, citing "hundreds" of plaintiffs and 15 common questions that include the following: the use of "uniform policies and systems" of management; allegedly deceptive advertising and statements; "whether the law requires the facility to maintain staffing at a reasonable across-the-board level" which is alleged to be 4.1 hours per resident day of "total nurse staffing" and 0.75 hours per resident day of "Registered Nurse staffing"; and damages. The Defendants moved to dismiss the complaint, or in the alternative to stay, and to strike certain allegations of the complaint. The Plaintiffs responded with oppositions and filed a motion to file an amended complaint that purports to shore up deficiencies of the original complaint and to expand the action. The Defendants oppose any further amendment. All motions are fully briefed and ready for consideration. III. Analysis A. Motion to Amend and Motion to Dismiss The Plaintiffs' motion to amend, filed on the heels of the briefing of the Defendants' motion to dismiss, seeks to amend the complaint to (1) add Ms. Kilgo and her sponsor and adult daughter, Ms. Lee, as Plaintiffs; (2) join Myers Park and Myers Park Propco, LLC, as Defendants; (3) "provide greater factual and legal support" that all the Defendants "should be held jointly and severally liable due to their direct involvement on the facts"; (4) expand the proposed class to all 37 facilities owned and operated by Hyman and Zanziper; (5) add claims for negligence and equitable relief; and (6) withdraw their fiduciary duty claim. The Plaintiffs argue the motion to amend should be granted because it "is made in good faith, will assist in ensuring litigation of the material issues, and is neither frivolous nor will cause any material prejudice." The Defendants argue the motion should be denied because it is futile, in bad faith, and unduly prejudicial. 1. Immunity Defense The Defendants first argue that the complaint should be dismissed, and any amendment disallowed, on the ground that the claims for understaffing are barred by the North Carolina Emergency or Disaster Treatment Protection Act ("EDTPA"). They also argue that the Plaintiffs' claims are barred by Session Law 2020-89, entitled "An Act to Provide Limited Immunity from Liability for Claims Based on Transmission of Coronavirus Disease 2019 (COVID-19). Taking the allegations as true, as the Court must at this preliminary stage, a motion to dismiss on this basis must be denied, Judge Schroeder holds. Among other things, he finds that because the Plaintiffs allege harms resulting from understaffing that occurred before the onset of the COVID-19 emergency declaration, the Defendants' statutory immunity arguments based on the EDTPA are premature at this stage. 2. Breach of Contract The Plaintiffs' first cause of action in the complaint, repeated in substantively the same form in the proposed amended complaint, is for breach of contract between the Resident Plaintiffs and The Citadel. The Resident Plaintiffs allege they had either an express or, in the alternative, an implied-in-fact contract with The Citadel. The Plaintiffs further contend this contract was breached when The Citadel experienced chronic understaffing resulting in harm to the residents. Judge Schroeder holds that the facts, reasonably construed in the light most favorable to the Plaintiffs, state a plausible claim for breach of contract. He opines that the Plaintiffs allege a valid express contract, and they plausibly allege that The Citadel contractually committed itself to maintaining adequate staffing levels for the proper care of their residents within the structure of North Carolina regulations. Furthermore, the Resident Plaintiffs' breach of contract claim does not rest solely on an alleged failure to comply with North Carolina regulations. 3. North Carolina Unfair and Deceptive Trade Practice Act The Plaintiffs' second cause of action in both the complaint and proposed amended complaint alleges that the "Defendants engaged in one or more unfair or deceptive acts or practices, or unfair methods of competition, or in affecting commerce" in violation of the UDTPA. The Defendants make multiple arguments to dismiss the Plaintiffs' UDTPA claim. Most notably, they argue that a mere breach of contract is insufficient to state a claim under the UDTPA. As the Plaintiffs have failed to plausibly allege a UDTPA claim, the motion to dismiss claim two of the complaint against all the Defendants will be granted, and because the Plaintiffs' proposed amended complaint offers no substantively different allegations, the motion to amend as to this claim is denied as futile. 4. Negligent Infliction of Emotional Distress The Plaintiffs' fourth claim of the original complaint, which is the third claim of the proposed amended complaint, alleges that The Citadel is liable for NIED under North Carolina law. Judge Schroeder opines that the Plaintiffs do not allege any specific facts to render the requisite severe emotional distress plausible. Temporary anxiety or distress, or more long-lasting anger and frustration, is not sufficient to establish severe emotional distress, and the Plaintiffs have alleged no further facts showing any "severe and disabling" mental or emotional condition. Accordingly, Judge Schroeder dismisses all claims of NIED against The Citadel. And because the Plaintiffs' proposed amended complaint offers no substantively different allegations, the motion to amend as to this claim is denied as futile. 5. Breach of Fiduciary Duty The Plaintiffs' third cause of action of the original complaint alleges that Defendants breached a fiduciary duty to the Sponsor Plaintiffs. But as the Plaintiffs have withdrawn this claim in their proposed amended complaint, the motion to amend is granted and the motion to dismiss the Sponsor Plaintiffs' breach of fiduciary duty claim is denied as moot. 6. Joinder The Plaintiffs move to amend their complaint to join (1) Ms. Kilgo, a resident of another Citadel-related facility, Myers Park, and her sponsor and adult daughter, Ms. Lee, as Plaintiffs under Rule 20; and (2) Myers Park and another limited liability company, Myers Park Propco, LLC, as Defendants under Rule 20. The Defendants argue that the Plaintiffs' attempted joinder is improper because Federal Rule of Civil Procedure 20 "does not authorize a plaintiff to join defendants in a single lawsuit when the plaintiff's claims against the defendants are unrelated." The Plaintiffs' response is largely that the other nursing home is part of "the same enterprise" with the "same defective staffing practices." Judge Schroeder denies the Plaintiffs' motion to amend the claims to add Ms. Kilgo and Ms. Lee as Plaintiffs, and Myers Park and Myers Park Propco, LLC as Defendants, pursuant to Rule 20. He opines that while there is an allegation of chronic understaffing by design, the understaffing, if demonstrated, would only be evidence to support a claim that any particular Plaintiff failed to receive the services contracted for. Thus, any particular Plaintiff's claim does not arise out of the alleged fact of a plan to understaff; rather, it would arise, if at all, based on the actual staffing each resident received. Moreover, allowing the Plaintiffs' claims would balloon the lawsuit to include some 37 facilities managed or operated by the various Defendants, and including hundreds, if not more, individual residents, rendering the litigation unmanageable. 7. Joint and Several Liability The Plaintiffs' claims are brought against The Citadel, with whom the Resident Plaintiffs contracted, and rely on the "instrumentality rule" to allege claims of civil conspiracy and concert of action to pierce the corporate veil and reach the remaining Defendants. The Plaintiffs argue that their amended complaint "provides greater factual and legal support" that all Defendants "should be held jointly and severally liable due to their direct involvement on the facts." First, Judge Schroeder denies the Defendants' motion to dismiss the liability claim against Defendants Salisbury Two NC Propco, LLC; Accordius; Portopiccolo; Simcha Hyman; and Naftali Zanziper without prejudice; and grants the Plaintiffs' motion to amend those same liability claims against those Defendants (Count IV of proposed amended complaint)), but only insofar as necessary to allow the parties to work off of a single (amended) complaint. Final resolution of the claim will be held in abeyance pending the resolution of a decision on class certification. Second, as the Plaintiffs' complaint fails to plausibly allege a civil conspiracy, the amended complaint's civil conspiracy claims are futile as to Defendants Salisbury Two NC Propco, LLC; Accordius; Portopiccolo; Simcha Hyman; and Naftali Zanziper. Thus, the Plaintiffs' claims for civil conspiracy in the complaint are dismissed, and the motion to add those claims in the proposed amended complaint is denied as futile. 8. New Claims The Plaintiffs move to amend their complaint to add claims for negligence and equitable relief. They also move to amend to withdraw their claim for breach of fiduciary duty. The Defendants argue that the Plaintiffs' new claims are futile because the "Plaintiffs have failed to offer the requisite certification and supporting expert affidavits as required by North Carolina Rule of Civil Procedure 9(j)" for medical malpractice claims. The Plaintiffs argue that these are not claims of medical negligence; "rather, this case is about corporate failure to budget for required staffing." First, Judge Schroeder opines that he need not resolve whether the Plaintiffs' negligence claim is best characterized as a medical malpractice claim or one for negligent conduct in understaffing because the claim is futile regardless. Second, he denies as futile the Plaintiffs' motion to amend the complaint to assert a request for declaratory relief. 9. Prejudice The Defendants contend that the Plaintiffs' amended complaint should be denied as unduly prejudicial as it was made "after the motion to dismiss was filed," the Plaintiffs were already aware of their "new" facts prior to filing their initial complaint, and "expanding the class allegations to another facility and then to all North Carolina facilities is being done for no other reason than to prejudicially drive up Defendants' cost of litigation." The Plaintiffs do not respond to this argument. Judge Schroeder opines that the timing and changes in the Plaintiffs' proposed amended complaint appear to be, at least in part, an attempt to circumvent the Defendants' pending motion to dismiss and has complicated the court's resolution of the pending motions. However, as the Court is nevertheless entertaining the Defendants' motion to dismiss, the Defendants are not unduly prejudiced either by a delay or through the "time and expense of fully briefing a motion to dismiss." Additionally, the Court has denied expansion of the litigation to include joinder of Ms. Kilgo and Ms. Lee as Plaintiffs, and Myers Park and Myers Park Propco, LLC as Defendants, under Rule 20. On the whole, therefore, consideration of the Plaintiffs' motion to amend their complaint does not unduly prejudice Defendants. B. Motion to Strike The Defendants move to strike various allegations in the Plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(f). Specifically, they move to strike the following: (1) "inflammatory terms" such as "cut-rate medical supplies," "reckless cost-cutting measures," and "upstart nursing home chain"; (2) allegations against a non-party, Genesis; (3) allegations "concerning standard of care violations"; and (4) "allegations pertain[ing] to marketing materials." In response, the Plaintiffs argue that "there is nothing inflammatory, scandalous or otherwise strike-able about the allegations in the Complaint. The Defendants did not file a reply. Judge Schroeder opines that the dispute over many of the allegations deemed offensive has been resolved by the Court's grant of the Defendants' motion to dismiss. Even if many of the alleged "inflammatory terms" and facts surrounding Genesis were removed, dismissal of the Plaintiffs' breach of contract claim would not be warranted. Additionally, the Court has already determined that the allegations in the purported "standard of care violations" may demonstrate breach of contract. See supra. Finally, the "allegations pertaining to marketing materials" are only relevant to the Plaintiffs' UDTPA claim, which the court is dismissing. Accordingly, the motion to strike is denied as moot. IV. Conclusion For the reasons he stated, Judge Schroeder grants in part and denies in part the Plaintiffs' motion to amend. He (i) grants the motion as to the Resident Plaintiffs' breach of contract claim (Count I) of the proposed amended complaint; (ii) denies the motion as futile as to joinder to add Ms. Kilgo and Ms. Lee as Plaintiffs, and Myers Park and Myers Park Propco, LLC as Defendants; (iii) denies as futile as to Counts II (Unfair and Deceptive Trade Practices), III (Negligent Infliction of Severe Emotional Distress), V (Negligence), VI (Equitable Relief), and IV (as to civil conspiracy), against all Defendants, as alleged in the proposed amended complaint; (iv) grants the motion as to allegations of liability against all the Defendants under the instrumentality rule (Count IV) except that as to this count the Plaintiffs will be permitted only to file the amended complaint (deleting reference to civil conspiracy) and discovery on any claim seeking to pierce the corporate structure of any Defendant as well as the Court's final determination on whether Count IV can proceed will be stayed pending resolution of the determination of class certification. Judge Schroeder grants in part and denies in part the Defendants' motion to dismiss the complaint as follows: The motion is granted as to Count II (Unfair and Deceptive Trade Practices) and Count IV (Negligent Infliction of Severe Emotional Distress) of the complaint, which claims are dismissed against all the Defendants; the motion is denies as to the Resident Plaintiffs' breach of contract claim (Count I); and denied as moot as to the Sponsor Plaintiffs' breach of fiduciary duty claim (Count III), which thr Plaintiffs have withdrawn, and denied as to the allegations of liability under the instrumentality rule (Count V), which the Plaintiffs have amended and the court has allowed subject to the limitations noted. The motion to stay is withdrawn and denied as moot. The motion to strike is denied as moot. The prior stay of consideration of the Plaintiffs' class certification is lifted and the Plaintiffs will have 30 days within which to file their updated briefing in support of their motion to certify the class. The Defendants' response briefs and the Plaintiffs' reply briefs will be filed as provided in the court's Local Rules. A full-text copy of the Court's May 25, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/2custddk from Leagle.com. CO-DIAGNOSTICS: Faces Stockholder Suits Over Faulty Press Releases ------------------------------------------------------------------ Co-Diagnostics, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that the company is currently a defendant in five different securities class action complaints that were filed by certain stockholders of the company claiming that the company promulgated false and misleading press releases to increase the price of our stock to improperly benefit the officers and directors of the Company. The plaintiffs demand compensatory damages sustained as a result of the company's alleged wrongdoing in an amount to be proven at trial. Co-Diagnostics, Inc., a Utah corporation, develops, manufactures and sells reagents used for diagnostic tests. CODE ENFORCEMENT: Underpays Security Guards, Niekerk Suit Claims ---------------------------------------------------------------- The case, IAN VAN NIEKERK, and all others similarly situated under 29 U.S.C. Section 216(b), Plaintiff v. CODE ENFORCEMENT SECURITY, INC., DENIS VARGAS, individually, HOMETEAM SECURITY, INC., and ALBERT VARGAS, individually, Defendants, Case No. 1:22-cv-21653-XXXX (S.D. Fla., May 27, 2022) arises from the Defendants' alleged violations of the Fair Labor Standards Act. The Plaintiff has worked for the Defendants as a non-exempt security guard beginning in August 2021 until his separation on November 30, 2021. The Plaintiff brings this complaint as a collective action asserting claims that the Defendant did not properly pay his and similarly situated security guards overtime compensation at the legally mandated overtime rate despite routinely working more than 40 hours per week throughout his employment with the Defendants. The Plaintiff seeks actual damages for the unpaid overtime wages for himself and other similarly situated security guards, as well as liquidated damages, attorneys' fees and litigation costs, all recoverable interest, and other relief as the Court deems just and proper. Code Enforcement Security Inc. and HomeTeam Security, Inc. are for-profit corporation operating out of Miami-Dade County, Florida. Both Defendants offers security services. Denis Vargas is the owner and operator of CES, while Albert Vargas is the owner of HomeTeam Security, Inc. [BN] The Plaintiff is represented by: J. Freddy Perera, Esq. Brody M. Shulman, Esq. Alexander T. Harne, Esq. PERERA ALEMAN, P.A. 12555 Orange Drive, Second Floor Davie, FL 33330 Tel: (786) 485-5232 CONSUMER ADJUSTMENT: Brittingham Seeks Class Certification ---------------------------------------------------------- In the class action lawsuit captioned as DANNY N. BRITTINGHAM v. CONSUMER ADJUSTMENT COMPANY, INC., Case No. (), the Plaintiff asks the Court to enter an order certifying a class of: "All persons who were (1) residents of the United States; (2) whose credit information was communicated to Experian, Equifax, TransUnion, or other consumer reporting agencies, by CACi using the name Midwest Recovery Systems, between September 1, 2019, and September 30, 2020." Excluded from this Class are all persons who have already settled or otherwise compromised their claims against Defendant. Also excluded from the Class is the Defendant, and any entity in which the Defendant has a controlling interest, the Defendant’s agents, and employees, any Judge to whom this action is assigned and any member of such Judge's staff and immediate family, and all people who submit timely and otherwise proper requests for exclusion from the Class. The Plaintiff's claims are in every respect typical and representative of the class that he seeks to represent. Class certification under these circumstances is both appropriate and required. This action should be certified as a class action because it meets all the requirements of Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure are met, the Plaintiff says. This case is brought under Federal Consumer Protection Statutes. The Plaintiff seeks certification of a class under Rules 23(a)1)-(4), and 23(b)(3) of the Federal Rules of Civil Procedure. He asserts claims against the defendant under the Fair Debt Collection Practices Act (FDCPA) and the Fair Credit Reporting Act (FCRA). A copy of the Plaintiff's motion to certify class dated May 23, 2022 is available from PacerMonitor.com at https://bit.ly/3m21j1P at no extra charge.[CC] The Plaintiff is represented by: Earl P. Underwood, Jr. ATTORNEY AT LAW 21 South Section Street Fairhope, AL 36532 Telephone: (251) 990-5558 Facsimile: (251) 990-0626 E-mail: epunderwood@alalaw.com - and - Steven P. Gregory, Esq. GREGORY LAW FIRM, PC 505 20th Street North, Suite 1215 Birmingham, AL 35203 Telephone: (205) 208-0312 E-mail: steve@gregorylawfirm.us The Defendant is represented by: Matthew J. Bell, Esq. MALONE FROST MARTIN 1200 S. Big Bend Bvld. St. Louis, MO 63117 Telephone: (314) 669-5490 Facsimile: (888) 632-6937 - and - L. Jackson Young, Jr. MOORE YOUNG FOSTER & HAZELTON, LLP 1122 Edenton Street Birmingham, AL 35242 Telephone: (205) 879-8722 Facsimile: (205) 879-8831 E-mail: jyoung@my-defense.com CONTINENTAL CASUALTY: Bid to Dismiss Cheslow Suit Granted in Part ----------------------------------------------------------------- In the case, LINDA CHESLOW, Plaintiff v. CONTINENTAL CASUALTY COMPANY, Defendants, Case No. 21 C 4010 (N.D. Ill.), Judge Virginia M. Kendall of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants in part and denies in part the Defendant's Motion to Dismiss. I. Introduction Plaintiff Cheslow brought claims against Defendant Continental alleging breach of contract and fraud claims. Cheslow purchased long-term care insurance from Continental through her employer's group policy. Continental raised nationwide premiums at different rates and times based on varying state regulatory regimes. Cheslow argues the raising of premiums at different rates violated the terms of the contract and amounted to fraud due to Continental's statement that a change in premiums would only occur if "premiums for all other Insureds in the same premium class" rose and that premiums could not be changed due to "age or health." II. Background Ms. Cheslow, a citizen and resident of the State of California, purchased a certificate for long-term care insurance provided by Continental through her employer, Hoffman-LaRoche, Inc.'s long-term care group policy, effective June 1, 2008. Long-term care insurance policies provide for the costs of assistance required due to disability or old age. Unique from long-term disability insurance, which provides income protection in the event an individual becomes disabled, long-term care insurance provides for a range of services individuals may require if they are unable to care for themselves. Individuals may purchase long-term care at a younger age to "secure a more favorable premium than they could otherwise obtain over the coming years." Continental issued long-term care insurance policies across the nation, including a group long-term care policy number 0010177TQ offered to Hoffman-LaRoche, Cheslow's employer, with an effective date of Nov. 2, 2002. The Policy Cheslow enrolled in provided her with a daily nursing home benefit of $250, a daily Alternate Care Facility benefit of $250, and a daily Community Based Care benefit of $150. The Policy certificate does not include any additional definition of "premium class." The rate schedules for the Policy included rates ranging based on only age and benefit level. The master policy includes tables of monthly and biweekly premium rates nationwide, without indicating differences based on state of residency. In contrast to the Policy Cheslow obtained, Continental also offered individual long-term care insurance coverage policies, one of which stated expressly, "We may change the premium rates. Any change will apply to all policies in the same class as Yours in the state where the policy was issued." At the outset, Cheslow's Policy certificate included a monthly premium of $206.71 or an annual premium of $2,478.12. On Sept. 13, 2016, Continental issued a letter to Cheslow indicating her premium would increase by 95.5% in two phases. The first phase would be a 70% increase on Nov. 1, 2016, followed by a 15% increase on Nov. 1, 2017. After the first phase of a 70% increase, Cheslow was informed her new monthly premium payment would be an additional $72.71 each month at $279.42. In response to the premium increase, Cheslow could react in one of three ways, according to the letter. First, she could continue her coverage by paying the new premium of $279.42 each month. Second, she could reduce her level of coverage to "minimize the effect" of the increase. Or third, she could execute a non-forfeiture benefit and discontinue premium payments, accepting "a drastically reduced maximum benefit under the certificate." Cheslow was unable to pay the increased monthly premium and chose to take the second option, reducing her benefit in order to reduce her premium. The letter Continental sent in September 2016 also informed Cheslow that the premium rate increase would not be effective for everyone: "Continental must comply with the laws and regulations of the states in which certificates were issued, which vary by state. It is likely that the size and timing of the rate increases may vary by state." The rates did in fact vary by states. For example, in Washington D.C., Continental sought a 10% increase to take effect Sept. 1, 2016, for insured individuals in Cheslow's premium class. Ms. Cheslow is seeking to raise claims as a class action representing "all individuals who purchased or are insured under a Continental Casualty Company group policy for long-term care coverage delivered in New Jersey, whose group policy either states or was marketed using material that states that premiums will not increase unless they also increase for all other insureds or all other insureds in a premium class, age, category, or other specified category." The Plaintiff raises five claims for relief. The first count is breach of contract due to Continental's increasing premiums in a manner that was not uniform for all other insured individuals in the same premium class by raising premiums under the Policy at different rates and different times in different states. The second cause is breach of the implied covenant of good faith and fair dealing on the same basis. Third, Cheslow brings a cause of action for violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56: 8-1 et seq. ("NJCFA"), "through its unfair and deceptive practices in marketing and selling long-term care policies, including concealing its intent to raise premiums on a state-by-state basis at the time the coverage was sold." The fourth cause of action is fraudulent concealment based on Continental's "failure to disclose its intention to seek premium increases that varied in timing and amount from state to state." Finally, Cheslow raises a cause of action for declaratory and injunctive relief. III. Discussion A. Count I: Breach of Contract Claim Continental allegedly breached the language of the contract in both the group policy and membership certificate providing that premium changes would be "based on his or her premium class, but only if we change the premiums for all other Insureds in the same premium class" by raising premiums at different rates and different times varying by states. Continental argues Cheslow is incapable of proving breach of an actual promise. According to Continental, insured individuals are presumed to know state regulatory requirements prohibit imposition of a "nationwide" rate increase, and such requirements are incorporated into the policy. Cheslow argues state regulatory regimes are irrelevant to "Continental's promises of a groupwide premium class based on age" since "no statute or regulation mandated any premium increase, let alone increases that vary from one state to the next." Judge Kendall opines that while she may consider extrinsic evidence to resolve a facial ambiguity, the reference by Continental to state regulations as a basis to dissuade the Court of dual reasonable interpretations is unpersuasive at this point. The term "premium class" is not defined; it is ambiguous and subject to multiple reasonable interpretations, including the interpretation put forth by the Plaintiff. She denies the Defendant's motion as to Count I along the same reasoning. B. Count II: Breach of Implied Covenant of Good Faith and Fair Dealing Like the bases for the breach of contract claim, the Plaintiff alleges Continental breached the implied covenant of good faith and fair dealing by failing "to exercise its discretion over rate increases reasonably, in a manner consistent with Cheslow's justified expectations." Judge Kendall finds that Cheslow reiterates the same set of facts for her claim of breach of implied covenant of good faith and fair dealing as she alleges for the breach of contract claim. She holds that Cheslow's surviving count for breach of contract sufficiently encapsulates her claims based on Continental breaching explicit terms in the agreement, and therefore, Count II is duplicative of Count I and dismissed as such. C. Count III: Violation of the NJCFA Ms. Cheslow argues Continental violated the NJCFA by affirmatively misrepresenting to insured individuals that the premium being charged "was a nationwide premium that could be raised only based on the age group of the insured" when in fact premiums were charged at different rates by state. Continental argues application of the Second Restatement requires the Court apply consumer fraud laws of the state with the most significant relationship to a plaintiff's claims.Therefore, it claims California fraud laws should apply since Cheslow is a California resident who purchased coverage in California from Continental, an Illinois-based insurer. Judge Kendall agrees with Continental that the nexus to New Jersey's consumer fraud protections is too attenuated to Cheslow's relationship with Continental and therefore dismisses the third count. She holds that the district court in New Jersey held "applying New Jersey law to out-of-state claims 'would frustrate the policies of each claimant's state,' even if 'New Jersey has an interest in deterring misconduct by corporations headquartered within its borders,'" citing Gelis v. Bayerische Motoren Werke Aktiengesellschaft, 2018 WL 6804506, at *4 (D.N.J. Oct. 30, 2018) (quoting Maniscalco v. Borhter Intern. (USA) Corp., 709 F.3d 202, 208 (3rd Cir. 2013)). In Gelis, the allegation was based on actions and misrepresentations by a Defendant with headquarters in New Jersey. In the present case, Cheslow's allegations are based on the group Policy being issued to her employer, based in New Jersey. D. Count IV: Fraudulent Concealment Like the other claims brought in the action, the claim for fraudulent concealment is based on Continental's group policy "suggesting that the premiums are based on age alone." As further basis, Cheslow argues the letter Continental sent to insured individuals describing that increase to premiums would vary by state evinces Continental could have been forthright about the variance during the initial application process. Continental argues Cheslow failed to specifically allege the "who, what, when, where, and how" of the alleged fraud in violation of Fed. R. Civ. P. 9(b). Judge Kendall opines that Cheslow has put forward a plausible allegation that Continental's assurances about raising premiums by "premium class" without noting the increases would range based on state of residency could be considered a half-truth, and therefore give rise to a duty to disclose. It is also possible and sufficiently plead that Defendant may have intentionally withheld the material fact of raising premiums based on state of residency. Similar to the first count, two other courts in this district have come to similar results. Judge Kendall denies the Defendant's motion as to Count IV along the same reasoning. Cheslow's complaint satisfies the pleading process stage and survives the motion to dismiss on this count. E. Count V: Declaratory and Injunctive Relief Finally, Continental moves to dismiss the fifth count on the basis that the Plaintiff has not alleged that it violated any legal rights, or that such a purported violation created a risk of irreparable harm. As Judge Kendall has upheld two of the four other counts as viable claims, she denies the Defendant's motion to dismiss Count V. IV. Conclusion For the reasons she set forth, Judge Kendall grants in part and denies in part the Defendants' Motions to Dismiss. The Plaintiff's claim in Count II for breach of implied covenant of good faith and fair dealing is dismissed as redundant. The Plaintiff's claim in Count III for violation of the NJCFA is also dismissed. The Plaintiff's claims in Counts I, IV, and V remain. A full-text copy of the Court's May 24, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/yc3kfxk4 from Leagle.com. CORMEDIX INC: Plaintiff in Securities Suit Balks at Bid to Dismiss ------------------------------------------------------------------ CorMedix Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that the lead plaintiff of the consolidated class action lawsuit filed an opposition to the company's motions to dismiss. On October 13, 2021, the United States District Court for the District of New Jersey consolidated into "In re CorMedix Inc. Securities Litigation," Case No. 2:21-cv014020-JXN-CLW, two putative class action lawsuits filed on or about July 22, 2021 and September 13, 2021, respectively, and appointed lead counsel and lead plaintiff, a purported stockholder of the company. The lead plaintiff filed a consolidated amended class action complaint on December 14, 2021, alleging violations of Sections 10(b) and 20(a) of the Exchange Act, along with Rule 10b-5 promulgated thereunder, and Sections 11 and 15 of the Securities Act of 1933. The complaint names as defendants the company, Khoso Baluch, Matthew David, Phoebe Mounts, John L. Armstrong, Robert Cook, Janet Dillione, Alan W. Dunton, Myron Kaplan, Steven Lefkowitz, Paulo F. Costa, and Greg Duncan, as well as two underwriters of the Company's secondary stock offering, B. Riley Securities, Inc. and Needham & Company, LLC. The purported bases for these claims are alleged misstatements and omissions in connection with the NDA submitted to the FDA for DefenCath, and the subsequent notification by the FDA that the NDA could not be approved in its present form. The lead plaintiff purports to assert the Exchange Act claims on behalf of persons that purchased or otherwise acquired shares of the company's securities between October 16, 2019, and September 6, 2021, and purports to assert the Securities Act claims on behalf of persons that purchased shares of the company's securities pursuant or traceable to a secondary offering of stock that commenced on November 27, 2020. The company filed a motion to dismiss the current complaint in full, with prejudice, on February 21, 2022. The company and the other defendants refiled their motions to dismiss on March 28, 2022, the lead plaintiff filed an opposition to the Defendants' motions to dismiss on April 27, 2022. CorMedix Inc. is a biopharmaceutical company focused on developing and commercializing therapeutic products for the prevention and treatment of infectious and inflammatory diseases based in New Jersey. DEVA CONCEPTS: Denial of Bid for Exclusion in Settlement Appealed ----------------------------------------------------------------- Movant Katherine Robaina filed an appeal from a court ruling denying her motion for leave to be excluded from a settlement in the consolidated class action complaint entitled IN RE: DEVA CONCEPTS PRODUCTS LIABILITY LITIGATION, Case No. 1:20-cv-01234-GHW, in the United States District Court for the Southern District of New York (New York City). The complaint is a civil class action brought by the Plaintiffs on behalf of consumers who purchased the Defendant's "DevaCurl No-Poo Original" non-lathering conditioning cleanser, DevaCurl One Condition Original hair-conditioner, DevaCurl Light Defining Gel, DevaCurl Low-Poo Original cleanser, DevaCurl Low-Poo Delight cleanser, DevaCurl No-Poo Decadence cleanser, DevaCurl One Condition Delight hair-conditioner, DevaCurl One Condition Decadence hair-conditioner, Melt into Moisture Mask, Styling Cream, DevaCurl Leave-In Decadence conditioner, Super Stretch Coconut Curl Elongator, Wavemaker, and DevaCurl Ultra Defining Gel which are used for personal cosmetic purposes. In 2002, the Defendant created and developed the formula for the DevaCurl No-Poo Original, which is marketed as containing no sulfate, and is also marketed as an "innovative new haircare category" and a "game-changing alternative to traditional shampoo." However, despite the "DevaCurl phenomenon" that has caused many curly haired consumers across the United States to purchase and use the Products, use of the Products cause scalp irritation, excessive shedding, hair loss, thinning, breakage, and/or balding during normal use by consumers, says the suit. On January 3, 2022, Judge Gregory H. Woods granted final approval of a class settlement in the case. The Settlement involves allegations in Plaintiffs' Consolidated Class Action Complaint that Defendant designed, formulated, manufactured, distributed and sold haircare products that are falsely and misleadingly labeled and sold as well as caused adverse reactions resulting in personal injures to Plaintiffs and the Class. The Settlement does not constitute an admission of liability by DevaCurl, and the Court expressly does not make any finding of liability or wrongdoing by DevaCurl. As reported in the Class Action Reporter on February 21, 2022, Judge Gregory H. Woods of the U.S. District Court for the Southern District of New York ordered the counsel for both Lead Plaintiffs and the Defendant to respond to Katherine Robaina's Feb. 3, 2022 motion for leave to be excluded from the class action settlement no later than Feb. 25, 2022. On April 25, 2022, Judge Woods entered a Memorandum Opinion and Order denying Ms. Robaina's motion for leave to be excluded from the settlement. Ms. Robaina is now seeking a review of this order. The appellate case is captioned as IN RE: DEVA CONCEPTS PRODUCTS LIABILITY LITIGATION, Case No. 22-1142, in the United States Court of Appeals for the Second Circuit, filed on May 25, 2022.[BN] Movant-Appellant Katherine Robaina is represented by: Amy Davis, Esq. LAW OFFICE OF AMY E. DAVIS LLC 1021 North Bishop Avenue Dallas, TX 75208 Telephone: (214) 838-3501 Defendant-Appellee Deva Concepts, LLC, DBA DevaCurl, is represented by: John Luger McManus, Esq. GREENBERG TRAURIG, P.A. 401 East Las Olas Boulevard Fort Lauderdale, FL 33301 Telephone: (954) 768-8291 E-mail: mcmanusj@gtlaw.com DJO GLOBAL INC: Jimenez Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against DJO Global, Inc. The case is styled as Vanessa Jimenez, individually, and on behalf of all others similarly situated v. DJO Global, Inc., Case No. 1:22-cv-04369 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. DJO -- https://www.djoglobal.com/ -- is an American medical device company headquartered in Lewisville, Texas, that produces a variety of orthopedic products for rehabilitation, pain management, and physical therapy.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com DRINKS INSIDERS: Mejia Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Drinks Insiders, LLC. The case is styled as Jose Mejia, individually, and on behalf of all others similarly situated v. Drinks Insiders, LLC, Case No. 1:22-cv-04367 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. DRINKS -- https://www.drinks.com/ -- operates the leading consumer marketplace for high quality and affordable premium wine available for delivery around the United States.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com EARLY WARNING: Arant Consumer Fraud Suit Removed to D. Arizona -------------------------------------------------------------- The case styled ROBERT ARANT, on behalf of himself and all others similarly situated v. EARLY WARNING SERVICES, LLC d/b/a ZELLE, Case No. CV2022-005057, was removed from the Superior Court of the State of Arizona for the County of Maricopa to the U.S. District Court for the District of Arizona on May 27, 2022. The Clerk of Court for the District of Arizona assigned Case No. 2:22-cv-00920-MTL to the proceeding. The case arises from the Defendant's alleged violations of the Arizona Consumer Fraud Act and the Washington Consumer Protection Act by making misrepresentations about the safety of its Zelle mobile banking service. Early Warning Services, LLC, doing business as Zelle, is a private financial services company, with its principal place of business in Scottsdale, Arizona. [BN] The Defendant is represented by: Meridyth M. Andresen, Esq. Jacob A. Maskovich, Esq. BRYAN CAVE LEIGHTON PAISNER LLP Two North Central Avenue, Suite 2100 Phoenix, AZ 85004-4406 Telephone: (602) 364-7000 Facsimile: (602) 364-7070 E-mail: jamaskovich@bclplaw.com mmandresen@bclplaw.com EASTWOOD CONSTRUCTION: Russo Class Suit Removed to D.S.C. --------------------------------------------------------- The case styled MARY RUSSO, KAREN HALVERSON, SANCHELLE JOHNSON, AND JULIANN CALLERY, individually and on behalf of all others similarly situated, JESSICA ANCRUM, SHERRYL ANDERSON, BRIANNA BENDIK, JUSTIN BENDIK, RANDY BROWN, JUAN DOZIER, DARRYL FELKEL, MEGAN FELKEL, NICOLE FLOYD, CANDID FORTNER, PETER FORTNER, KYLE GREGO, ASHLEY HALLOCK, CHRISTIAN HALLOCK, SAMUEL HALVERSON, KATHLEEN HARVEY, ARTHUR HUNTER, JANICA HUNTER, JOHN JEFFERSON, SHEILA JEFFERSON, AHMAD LEWIS, PATICIA LEWIS, LUCINDA LIFERIDGE, PHILLIP LIFERIDGE, JEREMY MCNEER, TIMOTHY O'BRIEN, WENDI O'BRIEN, JASON POGAR, LINDSEY POGAR, TRISTAN PROCTOR, MARVIN RAVENEL, DIANE SASS, JEREMY SHELTRA, MATTHEW SHREVE, DOLORES SMILEY, MAE TAYLOR, NEVERROL THOMPSON, JOHN TURNER, MARIA TURNER, LYNN WASHINGTON, and JANELLE WRIGHT v. EASTWOOD CONSTRUCTION PARTNERS, LLC F/K/A EASTWOOD CONSTRUCTION, LLC F/K/A EASTWOOD HOMES, INC.; EASTWOOD HOMES, INC.; EXTERIOR CONTRACT SERVICES, LLC; SOUTHCOAST EXTERIORS, INC.; ALPHA OMEGA CONSTRUCTION GROUP, INC., CIRO LOPEZ, JUAN GARZA RAMOS, JOHN DOE SUBCONTRACTORS 1-25, and AIR VENT, INC., Case No. 2020-CP-10-03786, was removed from the South Carolina Court of Common Pleas, County of Charleston, to the U.S. District Court for the District of South Carolina on May 27, 2022. The Clerk of Court for the District of South Carolina assigned Case No. 2:22-cv-01686-DCN to the proceeding. The case arises from the Defendants' alleged negligence, breach of implied warranties, and violation of the Unfair Trade Practices Act by manufacturing and selling defective roof ridge vent that caused damages to residential homes. Eastwood Construction Partners, LLC, formerly known as Eastwood Construction, LLC, formerly known as Eastwood Homes, Inc., is a construction company in North Carolina. Eastwood Homes, Inc. is a home construction company based in North Carolina. Exterior Contract Services, LLC is an exterior contract services company based in South Carolina. Southcoast Exteriors, Inc. is a roofing contractor in South Carolina. Alpha Omega Construction Group, Inc. is a residential and commercial general contracting company, headquartered in North Carolina. [BN] The Defendants are represented by: E. Raymond Moore, III, Esq. Cordes B. Kennedy, Esq. MURPHY & GRANTLAND, P.A. P.O. Box 6648 Columbia, SC 29260 Telephone: (803) 782-4100 E-mail: ermoore@murphygrantland.com ckennedy@murphygrantland.com ENCORE CAPITAL: Williams Appeals Summary Judgment in FDCPA Suit --------------------------------------------------------------- Plaintiff Lloyd Williams filed an appeal from a summary judgment ruling entered in his lawsuit entitled LLOYD WILLIAMS, on behalf of himself and all others similarly situated, Plaintiff v. ENCORE CAPITAL GROUP, INC., et al., Defendants, Civil No. 2:19-cv-05252-JMG, in the United States District Court for the Eastern District of Pennsylvania. According to the complaint, the Plaintiff obtained a credit card from Comenity Capital Bank. This credit card charged an interest rate that would ordinarily be considered usurious and unlawful in Pennsylvania, which is where the Plaintiff resides. But Comenity is a state-chartered, federally insured bank within the purview of the Federal Deposit Insurance Act and could, therefore, charge the Plaintiff interest exceeding the limits imposed by Pennsylvania law. Comenity issued a credit card to the Plaintiff, and this credit card charged between 24.99% and 25.99% annual interest. Over time, the Plaintiff fell behind on his credit card payments. Comenity closed the Plaintiff's account, charged it off, and sold the account to the Defendants. After acquiring the Plaintiff's account, the Defendants made various efforts to collect on the Plaintiff's debt. Unlike Comenity, the Defendants are not state-chartered, federally insured banks. In response to Defendants' efforts to collect on his debt, the Plaintiff filed the lawsuit in federal court claiming that the Defendants lack authority to collect a portion of his debt and that the Defendants' efforts to collect that portion violate Pennsylvania and federal law. The Plaintiff brought this lawsuit as a putative class action on behalf of himself and other Pennsylvania residents from whom the Defendants have attempted to collect debt. After holding a conference with counsel, the Court instructed the parties to complete discovery related to class certification and the merits of the Plaintiff's individual claims. The parties have completed that discovery. The Plaintiff moved for class certification and partial summary judgment, and the Defendants moved for total summary judgment. As reported in the Class Action Reporter on May 23, 2022, Judge John M. Gallagher of the U.S. District Court for the Eastern District of Pennsylvania granted the Defendants' motion for summary judgment. Because the Court found the Defendants' motion dispositive of all the Plaintiff's claims, the Court said it will not proceed to address the Plaintiff's motions for partial summary judgment or class certification. The appellate case is captioned as Lloyd Williams v. Encore Capital Group Inc, et al., Case No. 22-2000, in the United States Court of Appeals for the Third Circuit, filed on May 25, 2022.[BN] Plaintiff-Appellant LLOYD WILLIAMS, on behalf of himself and all others similarly situated, is represented by: Danielle Bruno McDermott, Esq. SCHNADER HARRISON SEGAL & LEWIS 120 Fifth Avenue, Suite 2700 Pittsburgh, PA 15222 Telephone: (412) 577-5200 - and - Layla A. Issa, Esq. Ira N. Richards, Esq. SCHNADER HARRISON SEGAL & LEWIS 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 751-2498 Defendants-Appellees ENCORE CAPITAL GROUP INC., MIDLAND CREDIT MANAGEMENT INC., and MIDLAND FUNDING LLC are represented by: Lauren M. Burnette, Esq. MESSER STRICKLER BURNETTE 12276 San Jose Boulevard, Suite 718 Jacksonville, FL 32223 Telephone: (904) 527-1172 E-mail: lburnette@messerstrickler.com - and - Katherine M. Olson, Esq. MESSER STRICKLER 225 West Washington Street, Suite 575 Chicago, IL 60606 Telephone: (312) 334-3469 ENDA ATHLETIC: Jimenez Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Enda Athletic, Inc. The case is styled as Vanessa Jimenez, individually, and on behalf of all others similarly situated v. Enda Athletic, Inc., Case No. 1:22-cv-04368 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Enda -- https://www.endasportswear.com/ -- is an African running shoe brand that inspires by the world's greatest runners in Kenya.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com EPIC LANDSCAPE: Faces Gomez Wage-and-Hour Class Suit in D. Kansas ----------------------------------------------------------------- JOSE GONZALEZ GOMEZ, ADRIAN MARGARITO LOPEZ-ARENAS, ALEJANDRO NAVAEZ-USCANGA, ALFONSO FAVELA-HERRERA, ALFREDO ALFONSO SANCHEZ-VALDEZ, ANTONIO LOPEZ-HERNANDEZ, ANTONIO MARTINEZ-MARTINEZ, CLAUDIO REY SALAS-LOPEZ, DAVID PALMA-MARTINEZ, FIDEL MEDRANO-RENTERIA, GERARDO JOEL QUINONES-VARGAS, J. ASCENCION ADAME-GUERRERO, JAVIER DIODONEY-CARABALLO, JESUS SALVADOR HERNANDEZ-DEVORA, JOEL QUINONES-MEDINA, JORGE PALMA-MARTINEZ, JOSE LUIS MARTINEZ-MEDRANO, JUAN CARLOS GALAVIZ-GARCIA, JUAN JOSE GALINDO-GARCIA II, JUAN JOSE MARTINEZ-MEDRANO, LEONEL QUINONES-VARGAS, LUIS ARRIETA-BRAVO, MARCO ANTONIO RODRIGUEZ, MIGUEL ANGEL ROCHA-GUTIERREZ, NOE BAZALDUA-SANCHEZ, RAMON ENRIQUE AVILA-VILLA, RICARDO ANTONIO RIQUELME-HERNANDEZ, SERGIO LOZANO-CORONADO, TOMAS FAVELA-RODRIGUEZ, VICTOR JOSE ANGEL CHAIREZ-CENISEROS, AARON JACOB WILLIS, ABRAHAM DE JESUS BARRERA, ADAMS DEIVI ORTIZ-GARCIA, ALEXIS SANTIAGO-LOPEZ, ANAIS ESPERANZA GARCIA-MORALES, ANDRES EDUVIGE LIRIANO-DEVORA, ANGEL BAEZ, ANGEL F. HERNANDEZ-NIEVES, ANGEL L. TORRES-COTTO, ANGEL LUIS ORTIZ-PEREZ, ANTONIO ("TONY") SANTANA-ARCE, APOLINAR TRINIDAD-DELOSSANTOS, ARNALDO JARED PENA-DELGADO, ATCEN JOEL CORSINO, AUSTIN TYLER BLACK, CARLOS MARTINEZ-REYES, CARLOS ALFREDO REYES-VILLEGAS, CARLOS DANIEL SANCHEZ-ALVAREZ, CARLOS M. SUSTAITA, JR., CESAR AUGUSTO ROMEU-FLORES, CHARLES NELSON, CHRISTOPHER MICHAEL JONES, CHRISTOPHER MICHAEL SMITH, CIPRIANO ISLAS, CLAUDIA BEATRIZ PERAZA, DAN ELVIS RAMIREZ-MARRERO, DAVID RODRIGUEZ BRACERO, DEVON J. WHITMORE, EDWIN OMAR VARGAS RESTO, EDWIN EDUARDO CARDENAS-PERALES, EDY SIKLER, ELLIS D. COX, ERICK ZAYAS-MORALES, ETHAN M. JOHNSON, FABIAN DELGADO-GONZALEZ, FABIAN QUEZADA-AVILA, FERNANDO FLORES-CARDENAS, FRANCISCO JAVIER HERNANDEZ, FREDERICK TYRONE-WHITBY, GREGORIO HERNANDEZ, HERMINIO SEGARRA, IRVING JOEL COLLAZO-MERCADO, IVAN CORTES-DOMINGUEZ, JAM CARLOS SANTIAGO-MALDONADO, JEFFREY CHARLES SCHELBAR, JELFRY ALEJANDRO BARIAS, JESSE MICHAEL CARPENTER, JOHNNY CRUZ-LUNA, JONATHAN RIOS-ARGUETA, JONATHANRIVERA-BONILLA, JORGE LUIS AYALA-SANTANA, JOSE A. PINEDA MEJIA, JOSE AGUSTIN PEREZ-ARROYO, JOSE ALBERTO GONZALEZ-GOMEZ, JOSE ANTONIO VARGAS-GUZMAN, JOSE E. MARTINEZ ROQUE, JOSE JUAN ARCHILLA, JOSHUA ISAAC ORTIZ-LUNA, JOSUE IRIZARRY-PEREZ, JUAN CARLOS RODRIGUEZ, JULIO JOSUE VERGARA-MARTINEZ, JUNIOR JOSE GRIMONT-YANEZ, JUSTO A. VILLARREAL, KELVIN SOTO-SOTO, KELVIN DAVID RESTO-MONTANEZ, KEVIN REY-ANCHONDO, KEVIN ANTONIO GUEVARA-CORDERO, LIZZETH JACQUELINE BLANCO, LORENZO MELGAREJO-GAMEZ, LUIS TROCHE-PINTO, LUIS ALBERTO ORELLANO-RODRIGUEZ, LUIS DANIEL DELGADO-RIVERA, LUIS ENRIQUE RODRIGUEZ, LUIS O. VERGARA-MARTINEZ, MANUEL MALDONADO-RODRIGUEZ, MARCELINO ESTRADA, MARLIS C. MORALES-MOLINA, MARTIN FRANCISCO VARELA II, MATTHEW ANDREW BLACK, MERWEEN R. MARRERO-RODRIGUEZ, MICHAEL SANCHEZ-MOLINA, MITSON TOM, NICOLAS QUEZADA-AVILA, OCTAVIO RODRIGUEZ, RAYMUNDO SILVA-QUINONEZ, REICHY ERAM, REUEL TIRADO-ORTIZ, ROGELIO MORALES-ROBLES, RUBEN GAMINO CRUZ, SALVADOR JOSEPH VILLARREAL, SAMUEL ANTONIO MOLINA-LOPEZ, SERGIO ROMAN RODRIGUEZ, SONIA LOPEZ-LUIS, STEPHANE BLAKE HARMON, STEVEN J. HOLDEN, THOMAS EDWARD PONDS, TYRONE ALVIN SCOTT EL, ZACHARY PAULEY, MICHAEL ARCHILLA, ANDRES SANTANDER-ESPINOZA, MARCOS XAVIER PAGAN-SANTIAGO, GUILLERMO A. SUAREZ, JUAN JOSE PALMA-MARTINEZ, individually and on behalf of all others similarly situated, Plaintiffs v. EPIC LANDSCAPE PRODUCTIONS, L.C., Defendant, Case No. 2:22-cv-02198 (D. Kan., May 30, 2022) is a class action against the Defendant for unpaid minimum wages and overtime wages in violation of Fair Labor Standards Act, breach of contract, third party beneficiary, and quantum meruit/unjust enrichment. The Plaintiffs are current and former hourly-paid employees of the Defendant in Kansas. Epic Landscape Productions, L.C. is a landscaping company headquartered in Olathe, Kansas. [BN] The Plaintiffs are represented by: Michael Hodgson, Esq. THE HODGSON LAW FIRM, L.L.C. 6 NW Main St. Lee's Summit, MO 64063 Telephone: (913) 890-3529 E-mail: mike@thehodgsonlawfirm.com - and – Timothy R. West, Esq. BERTRAM & GRAF, L.L.C. 2345 Grand Boulevard, Suite 1925 Kansas City, MO 64108 Telephone: (816) 523-2205 Facsimile: (816) 523-8258 E-mail: tim@bertramgraf.com ERIE INSURANCE: Summary Judgment Order in Rubinstein Suit Affirmed ------------------------------------------------------------------ In the case, ANDREW RUBINSTEIN AND JESSICA RUBINSTEIN, HIS WIFE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED Appellants v. ERIE INSURANCE EXCHANGE, Case No. 1353 WDA 2021 ( Pa. Super.), the Superior Court of Pennsylvania affirms the order of the Indiana County Court of Common Pleas granting Erie's motion for summary judgment. Appellants Andrew Rubinstein and Jessica Rubinstein, his wife, individually and on behalf of all others similarly situated, appeal from the Nov. 8, 2021, order of the Indiana County Court of Common Pleas, which granted Erie's motion for summary judgment in the class action lawsuit concerning an automobile insurance policy. In early April 2018, the Appellants applied for and were issued an automobile insurance policy by Erie. They obtained the Policy through one of Erie's local agents, Thomas M. Frick Insurance Agency, LLC, (Agent), with an initial term from April 9, 2018 through April 9, 2019. The Agent is not a party to the instant action. The Appellants' teenage son obtained his driver's license on April 24, 2018, and they maintain that they notified Agent of the same so that he could be added to the Policy. On July 16, 2018, the Appellants informed Erie that Andrew Rubinstein had been in an accident, and shortly thereafter, on July 19, 2018, Jessica Rubinstein contacted Erie, seeking to change their automobile coverage from limited tort to full tort. Approximately 13 months later, on May 17, 2019, the Appellants became aware that their son had not been added to the Policy and contacted Erie regarding this issue. They then received a letter from Erie with enclosed Amended Declarations for their Policy. Effective as of April 24, 2018, the Appellants' son was added to the Policy, resulting in a retroactive premium increase of $1,517. The Amended Declarations also included the full tort coverage for the Appellants' son, effective as of July 19, 2018, resulting in a retroactive premium charge of $482. In May 2019, the Appellants instituted the lawsuit by filing a class action complaint, and subsequently filed a second amended complaint in August 2019, raising four counts: (1) violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL); (2) breach of contract; (3) declaratory and injunctive relief pursuant to Pennsylvania's Declaratory Judgment Act; and (4) unjust enrichment. In June 2021, Erie filed a motion for summary judgment, alleging among other things: (1) the Policy "expressly states that the Policy premium may be increased effective the date that a material change in the Policy occurs, such as the addition of a licensed driver to the insureds' household;" (2) the clear and unambiguous Policy terms require the Policy premium to change effective as of the date the changed occurred;" (3) the Appellants "failed to establish that Erie had engaged in any unfair or deceptive trade practices." The Appellants filed a brief in opposition to Erie's motion for summary judgment. On Aug. 17, 2021, the court held argument on the matter. At that time, the Appellants conceded that summary judgment was proper as to UTPCPL and unjust enrichment counts. On Nov. 8, 2021, the court granted Erie's motion for summary judgment on the remaining counts. The Appellants filed this timely appeal. The Appellants raise the following issues for the Superior Court's review: A. Whether the trial court abused its discretion and/or committed an error of law when granting Erie's motion for summary judgment based on the conclusion that the Policy language is not ambiguous? B. Whether the trial court abused its discretion and/or committed an error of law when granting Erie's motion for summary judgment based on the conclusion that a company-wide practice of backdating policy changes and charging insureds retroactively increased premiums when no related claims were made is consistent with the intent and purpose of the MVFRL? C. Whether the trial court abused its discretion and/or committed an error of law when granting Erie's motion for summary judgment based on assumptions and speculation rather than on facts of record? D. Whether the trial court abused its discretion and/or committed an error of law when granting Erie's motion for summary judgment based on the conclusion that the form Policy language permits Erie to backdate changes to an insured's Policy and charge a retroactively increased premium when no related claims were made, to a date within any prior policy period -- back to the inception of the Policy? The Superior Court concludes that although the Appellants requested that their son be added to the Policy shortly after he turned 16 years old, he was not officially added until approximately 13 months later. Erie charged the Appellants for premiums related to that period. Central to the Appellants' dispute is their allegation that Erie acted improperly by retroactively charging increased premiums and backdating changes to the Policy where no claims were paid during the backdated period. Relatedly, they contend the trial court erred and abused its discretion by: (1) not determining there were ambiguities in the Policy language and that Erie may only charge increased premiums from the date a change was made; (2) applying a public policy analysis to their interpretation of the Policy; (3) basing its decision on assumptions and speculation; and (4) concluding that the Policy language permits Erie to backdate changes and charge a retroactively increased premium to the date within any prior policy period, including the inception of the Policy. Upon review, the Superior Court affirms and enters judgment. In sum, the Superior Court holds that contrary to the Appellants' arguments, there were no ambiguities in the Policy language at issue and therefore, it concludes the trial court did not err or abuse its discretion in granting Erie's motion for summary judgment. A full-text copy of the Court's May 25, 2022 Decision is available at https://tinyurl.com/bdf94ukp from Leagle.com. ETELEQUOTE INSURANCE: Clough Sues Over Unsolicited Telephone Calls ------------------------------------------------------------------ ROBERT CLOUGH, on behalf of himself and others similarly situated, Plaintiff v. ETELEQUOTE INSURANCE, INC., Defendant, Case No. 8:22-cv-01214 (M.D. Fla., May 26, 2022) is a class action complaint brought against the Defendant for its alleged violations of the Telephone Consumer Protection Act. The Plaintiff brings this action to enforce the consumer-privacy provisions of the TCPA alleging that the Defendant mad telemarketing calls to numbers on the National Do Not Call Registry, including him. The Plaintiff claims that he received multiple telemarketing calls from the Defendant on at least February 23, 24, 25, 2022. Accordingly, his telephone number 603-421-XXXX has been on the National Do Not Call Registry since May 2019. The Defendant's calls are allegedly related to solicitations and offers for Medicare and insurance service. The Plaintiff also asserts that he did not provided the Defendant with his prior express written consent to receive such telemarketing calls. According to the complaint, the Plaintiff and all other similarly situated individuals have been harmed by the unlawful conduct of the Defendant because their privacy has been violated and they were subjected to annoying and harassing calls that constitute a nuisance. Thus, on behalf of himself and all other similarly situated individuals, the Plaintiff seeks an order enjoining the Defendant and/or its affiliates, agents, and/or other persons or entities acting on the Defendant's behalf from making telemarketing calls to numbers on the Do Not Call Registry, as well as an award of damages and other relief as the Court deems necessary, just, and proper. Etelequote Insurance, Inc. offers Medicare and insurance services. [BN] The Plaintiff is represented by: Avi R. Kaufman, Esq. Rachel E. Kaufman, Esq. KAUFMAN P.A. 237 S. Dixie Hwy, 4th Floor Coral Gables, FL 33133 Tel: (305) 469-5881 E-mail: kaufman@kaufmanpa.com rachel@kaufmanpa.com EVERSOURCE ENERGY: Court Certifies Class in Garthwait ERISA Suit ---------------------------------------------------------------- In the case, KIMBERLY GARTHWAIT, ET AL., Plaintiffs v. EVERSOURCE ENERGY COMPANY, ET AL., Defendants, Civil Case No. 3:20-CV-00902(JCH) (D. Conn.), Judge Janet C. Hall of the U.S. District Court for the District of Connecticut granted in part and denied in part the Plaintiffs' Motion for Class Certification. I. Background The Plaintiffs, who have participated in the Eversource 401(k) Plan, bring the putative class action against Eversource and other Defendants under section 1132(a)(2) of the Employee Retirement Income Security Act of 1974 ("ERISA"), section 1001 of title 29, et seq., of the U.S. Code. Four named Plaintiffs seek to represent the putative class: Kimberly Garthwait, Cumal T. Gray, Kristine T. Torrance, and Michael J. Hushion, former Eversource employees and former Plan participants. They bring their claims against the following Defendants: Eversource; Eversource's Board of Directors; the Eversource Plan Administration Committee; the Eversource Investment Management Committee; and Christine M. Carmody, Robert J. DeAngelo, Richard J. Morrison, and Michael P. Synan, Gregory B. Butler, Christine M. Carmody, James J. Judge, Philip J. Lembo, Thomas J. May, David R. McHale, and John M. Moriera, who were members of the Board, the Administrative Committee, or the Investment Oversight Committee. The four named Plaintiffs are former Eversource employees who were previously enrolled in the Plan, a defined contribution 401(k) retirement plan with over 11,000 Participants. In their Amended Complaint, the Plaintiffs bring claims for breach of fiduciary duty, failure to monitor, and knowing breach of trust, seeking declaratory, injunctive, equitable, legal, or remedial relief pursuant to section 502 of ERISA. In support of their claims, the Plaintiffs allege, first, that the Defendants breached their fiduciary duties to the Plan by charging excessive recordkeeping and administrative fees. Second, they claim that the Defendants breached their duties by investing in and retaining a suite of actively managed target date funds known as the Fidelity Freedom Funds rather than their less risky, less expensive, passively managed counterparts, the Freedom Index Funds,. Third, they allege the Defendants invested in and retained imprudent investment options. In total, the Plaintiffs challenge 14 of the Plan's 19 investment offerings. Between the four named Plaintiffs, each has invested through the Plan in at least one of the challenged funds or suites of funds. Garthwait invested in the Fidelity Freedom 2030 Fund, one of the Freedom Funds. Gray invested in the Fidelity Freedom 2040 Fund through December 2015, when he transferred the balance into the Fidelity Freedom 2050 Fund. Torrance invested in the Fidelity Freedom 2030 Fund. Finally, Hushion invested in the Fidelity Freedom 2030 Fund, the Morgan Stanley Institutional Fund Emerging Markets Portfolio, the Frank Russell Small Cap Fund, the Morgan Stanley Institutional Fund Small Co. Growth Portfolio, the Lord Abbett Developing Growth Fund, the Fidelity Growth Co. Fund, the Fidelity Low-Priced Stock Fund, and the Fidelity International Discovery Fund. The Plaintiffs filed their original Complaint on June 30, 2020, followed by their First Amended Complaint on Sept. 22, 2020. Subsequently, the Defendants filed a Motion to Dismiss the First Amended Complaint, which the Court granted in part. In its Ruling, the Court dismissed without prejudice the Plaintiffs' claims related to the selection, retention, and mismanagement of specific funds as well as the excessive fees or expense ratios generated by particular investment options and share classes. It denied the Motion to Dismiss with respect to the Plaintiffs' claims that the Defendants charged excessive recordkeeping fees, because such fees affect every participant in the Plan no matter which investments she holds. Following the Court's Ruling and grant of leave to amend, on Oct. 18, 2021, the Plaintiffs filed their Second Amended Complaint detailing their investments. In response, on March 15, 2022, the Defendants filed a Motion for Summary Judgment that is pending. Now before the Court is the Plaintiffs' Motion for Class Certification, in which they propose the following class: All participants and beneficiaries in the Plan at any time on or after June 30, 2014 to the present (the Class Period or Relevant Time Period), including any beneficiary of a deceased person who was a participant in the Plan at any time during the Class Period. The Plaintiffs seek an order certifying their proposed class under Federal Rule of Civil Procedure 23(b)(1), naming Garthwait, Gray, Torrance, and Hushion as the class representatives, and designating Miller Shah, LLP and Capozzi Adler, PC as the class counsel. Judge Hall now considers the Plaintiffs' Motion to Certify the Class under Federal Rule of Procedure 23. II. Discussion A. Standing The Defendants argue that the Plaintiffs, as former participants in the Plan, lack Article III standing to seek prospective relief. They also contend that the Plaintiffs lack standing to represent a class challenging funds in which they have not personally invested. Judge Hall finds that the Plaintiffs do have standing to seek to recover the Plan's losses, although they lack standing to pursue "a permanent injunction against the Defendants prohibiting the practices described in the Second Amended Complaint and affirmatively requiring them to act in the best interests of the Plan and its participants." Judge Hall also finds that the Plaintiffs have standing to bring all of their claims on behalf of the absent class members, with the exception of any claims for prospective injunctive relief. Because the named Plaintiffs lack standing to seek prospective injunctive relief, the class fails insofar as it seeks prospective relief. B. Rule 23 The Plaintiffs must also satisfy the requirements for class certification under Federal Rule of Civil Procedure 23(a). These prerequisites are referred to as "numerosity, commonality, typicality, and adequacy of representation. In addition to satisfying the four prerequisites, a class action must qualify under at least one of the types of class actions listed in Rule 23(b). As the Second Circuit has explained, class certification furthers the purpose of ERISA section 502(a)(2), acting as a procedural safeguard to ensure that recovery "inures to the benefit of the Plan as a whole." Judge Hall holds that the Plaintiffs meet the criteria to certify their putative class as to their claims excepting those for prospective injunctive relief. She finds that (i) the proposed class satisfies the numerosity requirement because the proposed class has more than 11,000 members; (ii) whether the defendants failed to negotiate for appropriate recordkeeping fees for the Plan, as the Plaintiffs allege, is a common question with a common answer as to all Plan participants, even those who invested in the five funds whose performance is not at issue; (iii) the typicality requirement has been met as to Plan participants who invested in the challenged funds or suites of funds; (iv) the named Plaintiffs, including Gray, are adequate representatives of the class insofar as they seek retrospective relief; and (v) Miller Shah and Capozzi Adler are "qualified, experienced and able to conduct the litigation, and appoints Miller Shah and Capozzi Adler the class counsel. Judge Hall also holds that the Plaintiffs allege that the Defendants owed and breached a fiduciary duty by mismanaging the Plan, affecting more than 11,000 putative class members. Thus, certification under 23(b)(1)(A) is warranted. And because the Plaintiffs' allegations are brought with respect to breaches of fiduciary duties to the Plan as a whole, the Defendants' duties rise and fall with all plaintiffs." Thus, the class is properly certified under 23(b)(1)(A) or, alternatively, 23(b)(1)(B). C. Modifications to the Class Definition Judge Hall rules that the Plaintiffs lack standing to bring their claims for prospective injunctive relief. Therefore, she exercises her discretion under Rule 23(c)(4) to limit the claims at issue to those for retrospective relief. However, she grants the Plaintiffs leave to move to amend to add as a named plaintiff a member of the proposed class with standing to bring claims for prospective relief -- i.e., a current Plan participant. III. Conclusion For the foregoing reasons, Judge Hall granted in part the Motion for Class Certification as to a class of participants and beneficiaries in the Plan at any time on or after June 30, 2014, to the present, including any beneficiary of a deceased person who was a participant in the Plan at any time during the Class Period. The class is certified only as to the Plaintiffs' claims for retrospective relief. Insofar as the Plaintiffs seek to certify a class pursuing prospective injunctive relief, their Motion is denied in part for a lack of standing, unless within 30 days a member of the proposed class with standing to bring such claims moves for and is granted leave to intervene. Further, the Court may well create subclasses should conflicts among the interests of class member arise over the course of the litigation. Judge Hall enters this Ruling with the understanding that certification may be revisited at the remedial stage if such concerns become apparent. A full-text copy of the Court's May 25, 2022 Ruling is available at https://tinyurl.com/rdnr3zbe from Leagle.com. FIRSTSUN CAPITAL: Faces Besser Overdraft Suit in CO Court --------------------------------------------------------- Firstsun Capital Bancorp disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that it is facing a putative class action amended complaint against the company in the United States District Court for the District of Colorado. On September 13, 2021, Samantha Besser filed an amended complaint alleging that the company improperly charged multiple insufficient funds or overdraft fees when a merchant resubmits a rejected payment request. The complaint asserts claims for breach of contract, which incorporates the implied duty of good faith and fair dealing. Plaintiff seeks to represent a proposed class of all the company's checking account customers who were charged multiple insufficient funds or overdraft fees on resubmitted payment requests. Plaintiff seeks unspecified restitution, actual and statutory damages, costs, attorneys' fees, pre-judgment interest, and other relief as the Court deems proper for herself and the purported class. In September 27, 2021, the company filed a motion to dismiss the amended complaint. The motion to dismiss has been fully pleaded, and is before the Court for decision. FirstSun Capital Bancorp, headquartered in Denver, Colorado, is the financial holding company for Sunflower Bank, National Association, which operates as Sunflower Bank, First National 1870 and Guardian Mortgage. FIRSTSUN CAPITAL: McCollam Overdraft Suit Dismissed --------------------------------------------------- Firstsun Capital Bancorp disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that its motion to dismiss a putative class action amended complaint was granted on April 15, 2022. On September 10, 2021, Karen McCollam filed said complaint alleging that the bank improperly charged overdraft fees where a transaction was initially authorized on sufficient funds but later settled negative due to intervening transactions. The complaint asserted a claim for breach of contract, which incorporated the implied duty of good faith and fair dealing, and a claim for violations of the Colorado Consumer Protection Act. Plaintiff sought to represent a proposed class of all the company's checking account customers who were allegedly charged overdraft fees on transactions that did not overdraw their checking account. Plaintiff sought unspecified restitution, actual and statutory damages, costs, attorneys' fees, pre-judgment interest, and other relief as the Court deemed proper for herself and the putative class. On September 24, 2021, the company filed a motion to dismiss the amended complaint. The motion to dismiss was granted on April 15, 2022. FirstSun Capital Bancorp, headquartered in Denver, Colorado, is the financial holding company for Sunflower Bank, National Association, which operates as Sunflower Bank, First National 1870 and Guardian Mortgage. FLEET NEW YORK: Court Vacates Entries of Default in Li Class Suit ----------------------------------------------------------------- In the case, SHANRU LI, Plaintiff v. FLEET NEW YORK METROPOLITAN REGIONAL CENTER LLC, LAGUARDIA PERFORMANCE CENTER, LLC, EEGH II, L.P., AND RICHARD XIA, Defendants, Case No. 21-CV-5185 (PKC) (RER) (E.D.N.Y.), Magistrate Judge Ramon E. Reyes, Jr., of the U.S. District Court for the Eastern District of New York grants the Defendants' motion to set aside the Clerk's entries of default against all the Defendants in the consolidated action. I. Background Plaintiff Li commenced the action on Sept. 17, 2021, on behalf of himself and similarly situated international investors against EEGH II, L.P. (the "Partnership,"), its General Partner, Fleet New York Metro Regional Center LLC (the "General Partner" or "New York Metro"), an affiliated real estate developer, LaGuardia Performance Center, LLC (the "Developer"), and their mutual President, Richard Xia ("Xia") (collectively, the "Li Defendants"), alleging common law fraud, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty. Four days after Li's complaint was filed, Ji Su Ai, Ruohong Li, and Yi Ding (collectively, "the Ai Plaintiffs" and together with Li, the "Plaintiffs") filed a separate class action complaint containing substantially similar factual allegations and asserting the same causes of action against Xia, New York Metro, and two substitute Defendants: A different EB-5 investment vehicle, EEGH, L.P. (together with EEGH II, L.P., the "Partnerships"), whose General Partner is also New York Metro; and a different developer, Eastern Emerald Group LLC (together with LaGuardia Performance Center, LLC, the "Developers") (collectively, with the Li Defendants, the "Defendants" or the "Fleet Group"), which is also affiliated with and controlled by Xia, all of which allegedly solicited funding from foreign investors to develop the same luxury hotel complex in Corona, Queens -- Ai v. Federal New York Metropolitan Regional Center LLC, et al., 21-CV-5250 (PKC) (RER) (E.D.N.Y. Sept. 21, 2021)). After the Defendants failed to appear, answer, or otherwise timely respond to the Plaintiffs' complaints in both actions, the Plaintiffs requested, and the Clerk of the Court entered, certificates of default against all the Defendants. On Dec. 8, 2021, the Honorable Pamela K. Chen consolidated the Li and Ai actions pursuant to Rule 42(a). Before the Court is the Defendants' motion to set aside the Clerk's entries of default against all the Defendants in the consolidated action pursuant to Rule 55(c) of the Federal Rules of Civil Procedure, which Judge Chen referred to Judge Reyes on Dec. 13, 2021. The Plaintiffs oppose the motion. II. Discussion Because Rule 55(c) does not define the term 'good cause,' the Second Circuit has established three criteria that must be assessed in order to decide whether to relieve a party from default or from a default judgment," citing Enron Oil Corp. v. Diakuhara, 10 F.33d 90, 96 (2d Cir. 1993) (alterations omitted). These criteria, commonly referred to as the Enron factors, "are: '(1) the willfulness of default, (2) the existence of any meritorious defenses, and (3) prejudice to the non-defaulting party.'" I. Willfulness The Defendants argue primarily that this is not a case of bad faith or egregious and unexplained conduct; rather, they did not respond to the complaints because they were not properly served. In August 2021, Xia moved from the home where the Plaintiffs attempted to effect personal service the following month, and where the Plaintiffs purportedly served him via "nail-and-mail" in October 2021. The Partnerships, General Partner, and Developers similarly moved offices in August 2021, but had not yet updated their addresses at the time of service such that they were not notified of service by the Secretary of State. Accordingly, the Defendants deny having received proper service of the complaints, and argue that their defaults were not willful. In response, the Plaintiffs argue that contemporaneous messages sent by Xia prove that he had actual notice of the actions after service was completed, such that the defaults were deliberate and likely intentional. According to WeChat messages exchanged between Xia and investors on October 15 and Oct. 18, 2021 -- days after service was completed via nail-and-mail -- Xia discussed the filing of a class action with investors, discussed class action issues with attorneys, and shared pictures of the summonses issued against him in both actions, both of which describe the time to respond and the consequences for failure to do so, i.e., the entry of default. Accordingly, the Plaintiffs argue that Xia was personally aware of the actions, and that by extension the entities he dominates and controls were on notice that responses were required. The Defendants respond that Xia's knowledge of the existence of lawsuits as demonstrated by the WeChat messages is insufficient to demonstrate that he was served or that he knew he was served, and that it is service of process, rather than actual notice of a lawsuit, that triggers a Defendants' duty to respond. They further argue that after learning of the purported service and certificates of default, the Defendants moved quickly to vacate the defaults soon after they were entered. Judge Reyes holds that this is a "close call." However, taking into account the Defendants' explanations, the short period of time between the entry of default and the Defendants' action in the case, and the lenient standard of Rule 55(c) which requires that the Court resolves all doubts regarding willfulness in their favor, Judge Reyes finds that the Defendants did not deliberately default. Therefore, this factor weighs in favor of vacating the entries of default. B. Meritorious Defenses The Defendants raise several legal defenses to the action sufficient to clear this low bar. For example, with respect to subject matter jurisdiction, Defendants contend that the complete diversity required by 28 U.S.C. Section 1332(a) is impossible where, as in the present case, a limited partner brings suit against a partnership, and that jurisdiction under the Class Action Fairness Act ("CAFA") is inappropriate where, despite meeting minimal diversity requirements, only four plaintiffs purport to represent a class of 270 investors, at least eighty-three of those investors oppose the litigation, and the Plaintiffs have not established that they have conducted sufficient inquiry to determine whether others are on board. However, as the Plaintiffs note, even accounting for the 83 identified "opt out" investors, the number of remaining limited partners and the value of their aggregated claims exceed the relevant CAFA requirements, i.e., more than 100 class members and an amount in controversy of more than $5 million. Nevertheless, "when the complaint fails to allege a specific damages amount, and facts relating to the jurisdictional amount are challenged," the party asserting the Court's jurisdiction "must establish the requisite amount in controversy 'with competent proof and justify its allegations by a preponderance of evidence.'" Though the Plaintiffs have alleged the number of investors participating in each offering and the corresponding amounts raised, Judge Reyes finds that they have not alleged any specific amount in damages and have not put forward specific proof to support jurisdiction at this early stage. Accordingly, the Defendants have identified issues regarding the Court's jurisdiction, such that further briefing and consideration is warranted, and such that they have raised a meritorious legal defense. Similarly, with respect to the statute of limitations, Judge Reyes finds that the parties have each raised valid points on the issue that merit further briefing and consideration on the merits. She need not consider the parties' numerous additional arguments regarding potential meritorious defenses to other specific claims. C. Prejudice to Plaintiffs The Defendants argue that the short delay between the entries of default and the motion to vacate those entries of default makes prejudice unlikely, and that the Court's entry of a TRO freezing Defendants' assets in connection with the SEC action also renders unlikely any greater opportunity for fraud and collusion or any depletion of funds that would otherwise be available to the Plaintiffs in the event of an adverse judgment. Thne Plaintiffs respond that the TRO's temporary nature may allow the Defendant's to further misappropriate funds in the future if the freeze is lifted, and that any further delay in resolving the case therefore risks the possibility that funds won't be recoverable in the event of an adverse judgment. Judge Reyes holds that the improper communications are not sufficient to constitute prejudice to withstand the Circuit's preference for resolving disputes on the merits. Since (1) the Defendants quickly responded upon learning of the entry of default, (2) discovery has not yet begun, and the Plaintiffs have pointed to no discovery issues that will result from Defendants' delayed response, (3) since court imposed guardrails, including the TRO in the SEC action and the Court's strong warning to the Defendants not to communicate with putative class members are sufficient to prevent fraud and collusion, and (4) since the Circuit favors resolving disputes on the merits, Judge Reyes finds that the third factor does not weigh strongly in favor of denying the Defendants' request to set aside the Clerk's entries of default. III. Conclusion Given the totality of the circumstances and the lenient "good cause" standard imposed by Rule 55(c), Judge Reyes finds that, on balance, the Enron factors weigh in favor of vacating the Defendants' defaults. Accordingly, for the reasons he set forth, Judge Reyes grants the Defendants' motion to vacate the entries of default. The Clerk of the Court is accordingly directed to vacate the defaults entered against all the Defendants on Nov. 30, 2021. The Defendants are directed to file and serve answers to the complaints within 20 days of receipt of the Memorandum and Order. A full-text copy of the Court's May 25, 2022 Memorandum & Order is available at https://tinyurl.com/3xnh4vnt from Leagle.com. FORSTER & GARBUS: Parties Must File Class Cert Bid by June 24 ------------------------------------------------------------- In the class action lawsuit captioned as FRANCOIS v. FORSTER & GARBUS, LLP, et al., Case No. 3:21-cv-20664 (D.N.J.), the Hon. Magistrate Judge Rukhsanah L. Singh entered an order that the Parties are to file a joint motion for class certification and preliminary approval of class action settlement no later than June 24, 2022. The telephone conference set for July 18, 2022 is canceled, says Judge Singh. The suit alleges violation of the Fair Debt Collection Practices Act. Forster & Garbus is a New York debt collection law firm.[CC] FRIENDLY HOME CARE: Konstantynovska Files Suit in N.Y. Sup. Ct. --------------------------------------------------------------- A class action lawsuit has been filed against Friendly Home Care, Inc. The case is styled as Lyudmyla Konstantynovska, and individually and on behalf of other persons similarly situated v. Friendly Home Care, Inc., Case No. 523015/2017 (N.Y. Sup. Ct., Kings Cty., May 26, 2022). The case type is stated as "E-Filed Other." Friendly Home Care, Inc. -- https://www.friendlyhomecareny.com/ -- is a home health care service in New York City that provide a multitude of services that include obtaining home care service and more.[BN] The Plaintiff is represented by: VIRGINA & AMBINDER Phone: (212) 943-9080 The Defendant is represented by: TRIVELLA & FORTE, LLP. 1311 Mamaroneck Ave., Ste 170 White Plains, NY 10605 Phone: (914) 949-9075 - and - DANIELS PORCO AND LUSARDI LLP Phone: (845) 206-4049 GAS GATHERING: Lyman Suit Transferred From Minnesota to W.D. Texas ------------------------------------------------------------------ In the case, William Lyman, Plaintiff v. Gas Gathering Specialists, Inc., Defendant, Case No. 21-cv-2386 (KMM/ECW) (D. Minn.), Judge Katherine Menendez of the U.S. District Court for the District of Minnesota granted the Defendant's Motion to Transfer Venue pursuant to 28 U.S.C. Section 1404(a). When deciding a motion to transfer venue, courts typically consider "(1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice." To determine the interests of justice, courts generally consider: (1) judicial economy, (2) the plaintiff's choice of forum, (3) the comparative costs to the parties of litigating in each forum, (4) each party's ability to enforce a judgment, (5) obstacles to a fair trial, (6) conflict of law issues, and (7) the advantages of having a local court determine questions of local law. The burden is on the party seeking transfer to show that these factors weigh in their favor. In the present case, Judge Menendez found that the relevant factors, save for one, weigh heavily in favor of transfer to the Western District of Texas, Midland/Odessa Division. Specifically, Judge Menendez found that the only connection the case has to the District of Minnesota is the fact that Mr. Lyman worked there for two of the 36 months at issue. Mr. Lyman does not reside in Minnesota, nor do any of the witnesses or any of the evidence. Indeed, the substantial majority of witnesses and evidence are in Texas. With respect to the interests of justice, Judge Menendez found that allowing the case to proceed in this district would create a substantial risk of contradictory judgments with a very similar action currently pending in the Western District of Texas, as the two cases involve substantially the same class members, the Defendants, and issues of fact and law. For the same reasons, as well as the fact that the Defendant's offices and both parties' counsel are located in Texas, Judge Menendez found that it would be wasteful of judicial and party resources to permit the case to continue in this district. Accordingly, she concluded that all of the relevant factors, save for the Plaintiff's choice of forum, strongly favor transfer. Judge Menendez explained that, for several reasons, the Plaintiff's choice to sue in Minnesota deserves little to no weight in the case. While "there is ordinarily a strong presumption in favor of the Plaintiff's choice of forum," that presumption is not unwavering. First, it is "much less reasonable" to assume that a plaintiff chose a district in which he does not live for convenience purposes. Mr. Lyman lives in Iowa -- not Minnesota. The Plaintiff's choice is also afforded less deference where "the transaction or underlying facts did not occur in the chosen forum," or "where a case is brought as a nationwide class action." Finally, choice of forum is afforded no weight where the decision was "based on impermissible forum shopping." For these reasons, Judge Menendez held that if Mr. Lyman's choice of forum were due any deference in the case, it is certainly not enough to counter the overwhelming weight of the other factors in favor of transfer. Accordingly, she granted Gas Gathering's Motion to Transfer Venue. She transferred the venue to the U.S. District Court for the Western District of Texas, Midland/Odessa Division. A full-text copy of the Court's May 24, 2022 Order is available at https://tinyurl.com/mrxbrmjn from Leagle.com. GEICO CASUALTY: Second Circuit Affirms Dismissal of Grossman Suit ----------------------------------------------------------------- In the case, TODD GROSSMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, MUJO PEREZIC, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellants v. GEICO CASUALTY COMPANY, GEICO INDEMNITY COMPANY, GEICO GENERAL INSURANCE COMPANY, Defendants-Appellees, Case No. 21-2789 (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirmed the district court's judgment entered on Sept. 13, 2021, dismissing the Plaintiffs' complaint and later denying their motion for reconsideration. I. Background Plaintiffs-Appellants Todd Grossman and Mujo Perezic bring the putative class action against Defendants-Appellants GEICO Casualty Company, GEICO Indemnity Co., and GEICO Insurance Co. (together, "GEICO"), seeking to represent a class of New York residents who had or purchased automobile, motorcycle, or RV insurance policies from GEICO during the period between March 1, 2020, and the date on which they filed their complaint. The Plaintiffs allege that COVID-19-related stay-at-home orders first implemented in March 2020 caused a dramatic reduction in driving and, in turn, driving-related accidents, resulting in windfall profits for automobile insurance companies, including GEICO. In April 2020, GEICO instituted a "Giveback Program" that provided a 15% premium reduction on new or renewed policies. The Plaintiffs contend that this credit was inadequate, that GEICO's advertising about the Giveback Program was misleading, and that GEICO charged unconscionably excessive premiums and unjustly retained windfall profits during the pandemic. They assert claims for breach of the covenant of good faith and fair dealing, unjust enrichment, and violations of New York General Business Law ("GBL") Sections 349 and 350. The district court dismissed the Plaintiffs' complaint for failure to state a claim and later denied their motion for reconsideration. The Plaintiffs now appeal from the judgment of dismissal. In July 2021, acting pursuant to the district court's local and individual rules, GEICO filed a letter in which it briefly stated its arguments for why the complaint did not state a plausible claim and requested a pre-motion conference to discuss its planned motion to dismiss. The district court "construed" the letter as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and then granted the "motion." II. Discussion On such review, the Second Circuit concludes that the Plaintiffs' complaint fails to state a claim as a matter of law for at least two independent reasons. First, the Plaintiffs' claims are precluded by the filed rate doctrine, which "bars suits against regulated utilities grounded on the allegation that the rates charged by the utility are unreasonable." Second, even if the Plaintiffs' claims were not barred by the filed rate doctrine, they were properly dismissed under Rule 12(b)(6) for the independent reason that each cause of action fails to state a plausible claim. Finally, the Plaintiffs submit that the district court erred by converting GEICO's pre-motion letter into a motion to dismiss and then granting the motion without full briefing or argument. They raise a valid concern with the district court's action in dismissing their complaint without the opportunity for full briefing and in possible violation of the applicable local rules and the district court's stated individual practice. Nonetheless, the Second Circuit concludes that, in the case, any error in the district court's dismissal order is harmless in light of the substantial deficiencies in the complaint. III. Conclusion The Second Circuit has considered all of the Plaintiffs' remaining arguments and finds in them no basis for reversal. For the reasons it set forth, the judgment of the district court is affirmed. A full-text copy of the Court's May 25, 2022 Summary Order is available at https://tinyurl.com/2p9cj92r from Leagle.com. ROY T. WILLEY, IV (Eric M. Poulin -- eric@akimlawfirm.com -- Blake G. Abbott -- blake@akimlawfirm.com -- on the brief), Anastopoulo Law Firm, Charleston, SC; Edward Toptani, Toptani Law PLLC, in New York City, for the Appellants. DAMON VOCKE -- DNVocke@duanemorris.com -- (David T. McTaggart -- dtmctaggart@duanemorris.com -- on the brief), Duane Morris, LLP, in New York City, for the Appellees. GLOBAL TRADE: Li Files FLSA Suit in D. Oregon --------------------------------------------- A class action lawsuit has been filed against Global Trade Enterprises, Inc., et al. The case is styled as Hongjiang Li, Shouwen Fu, Chen Li, Jiyou Cao, on behalf of themselves and all others similarly situated v. Global Trade Enterprises, Inc. doing business as: Duck House Chinese Restaurant, Haidong Liu also known as: John Liu, Sam Doe, David Doe, Sammy Woo, Case No. 3:22-cv-00720-SB (D. Or., May 16, 2022). The lawsuit is brought over alleged violation of the Fair Labor Standards Act. Global Trade Enterprises, Inc. doing business as Duck House Chinese Restaurant -- https://www.duckhousepdx.com/ -- serves authentic Szechuan Chinese Food, located in downtown Portland, Oregon.[BN] The Plaintiffs are represented by: Aurelia J. Erickson, Esq. Kelsey M. Peddie, Esq. CHENOWETH LAW GROUP 510 SW Fifth Ave., 4th Floor Portland, OR 97204 Phone: (503) 221-7958 Email: aerickson@chenowethlaw.com kpeddie@chenowethlaw.com GOOGLE LLC: Extension of Time for Class Cert. Deadlines OK'd ------------------------------------------------------------ In the class action lawsuit captioned as ANIBAL RODRIGUEZ, et al. individually and on behalf of all others similarly situated, v. GOOGLE LLC, Case No. 3:20-cv-04688-RS (N.D. Cal.), the Judge Richard Seeborg entered an order extending discovery, class certification briefing schedule, and hearing date as follows: -- Close of Fact Discovery: September 26, 2022 -- Initial Expert Witness October 13, 2022 Disclosures: -- Rebuttal Expert Witness January 20, 2023 Disclosures: -- Close of Expert Discovery: February 16, 2023 -- Motion for Class Certification: February 23, 2023 -- Opposition to Motion for March 30, 2023 Class Certification: -- Reply In Support of Class April 27, 2023 Certification: Google is an American multinational technology company that focuses on artificial intelligence, search engine, online advertising, cloud computing, computer software, quantum computing, e-commerce, and consumer electronics. A copy of the Court's order dated May 20, 2022 is available from PacerMonitor.com at https://bit.ly/3z9uoAa at no extra charge.[CC] The Plaintiff is represented by: Mark C. Mao, Esq. BOIES SCHILLER FLEXNER LLP 44 Montgomery Street, 41st Floor San Francisco, CA 94104 Telephone: (415) 293 6858 Facsimile: (415) 999 9695 E-mail: mmao@bsfllp.com - and - Beko Reblitz-Richardson, Esq. 44 Montgomery Street, 41 st Floor San Francisco, CA 94104 Telephone: (415) 293 6858 Facsimile: (415) 999 9695 E-mail: brichardson@bsfllp.com - and - William Christopher Carmody, Esq. Shawn J. Rabin, Esq. SUSMAN GODFREY L.L.P. 1301 Avenue of the Americas, 32nd Floor New York, NY 10019 Telephone: (212) 336-8330 E-mail: bcarmody@susmangodfrey.com srabin@susmangodfrey.com - and - John A. Yanchunis, Esq. Ryan J. McGee, Esq. MORGAN & MORGAN 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 E-mail: jyanchunis@forthepeople.com rmcgee@forthepeople.com The Defendant is represented by: Benedict Y. Hur, Esq. Simona Agnolucci, Esq. Eduardo E. Santacana, Esq. Lori C. Arakaki, Esq. Argemira Florez, Esq. WILLKIE FARR & GALLAGHER LLP One Front Street, 34th Floor San Francisco, CA 94111 Telephone: (415) 858-7400 Facsimile: (415) 858-7599 E-mail: bhur@willkie.com sagnolucci@willkie.com esantacana@willkie.com larakaki@willkie.com aflorez@willkie.com GREAT LAKES: Court Amends Class Certification Orders in Dawson Suit ------------------------------------------------------------------- In the case, MEREDITH D. DAWSON, Plaintiff v. GREAT LAKES EDUCATIONAL LOAN SERVICES, INC. and GREAT LAKES HIGHER EDUCATION CORPORATION, Defendants, Case No. 15-cv-475-jdp (W.D. Wis.), Judge James D. Peterson of the U.S. District Court for the Western District of Wisconsin amends the orders certifying the class to exclude from the class all borrowers, who overpaid their student loans by less than five dollars. Plaintiff Dawson represents a class of student loan borrowers who contend that Defendants Great Lakes Educational Loan Services, Inc. and Great Lakes Higher Education Corp. (collectively "Great Lakes") negligently inflated their account balances by improperly capitalizing their interest. The Court granted to summary judgment to Great Lakes on most claims because Great Lakes submitted unrefuted evidence that the class's account balances had been corrected to remove the effects of the improperly capitalized interest. But it denied summary judgment on the claims of class members who had already paid off their loans and had overpaid by an amount of less than five dollars. Great Lakes argued that the class members with overpayments of less than five dollars weren't entitled to a refund because the policy of the Department of Education was not to provide refunds in that situation unless the borrower requests it. The Court rejected Great Lakes' argument for two reasons. First, the lawsuit represents a request by the entire class to receive a full refund, so Great Lakes should have acted as if the class members had requested a refund, regardless of how small the refund was. Second, Great Lakes didn't explain why department policy should determine damages in a federal lawsuit. So the Court denied Great Lakes' summary judgment motion on these claims. But that decision raised the question of how the case should proceed. The Court couldn't grant summary judgment to Dawson, both because Dawson hadn't proven negligence and because there was no evidence about how much money was at issue and which class members had made overpayments of less than five dollars. But holding a trial on what was likely a relatively small amount of money seemed like an imprudent use of judicial resources. So the Court directed the parties to weigh in on how they wished to resolve the remaining disputes. Great Lakes responds with one observation and two suggestions. Its observation is related to the maxim "de minimis non curat lex," which courts translate to mean that "the law does not concern itself with trifles." Under that maxim, a court may "withhold a remedy" when "the harm is small but measuring it for purposes of calculating a remedy would be difficult, time-consuming, and uncertain, hence not worthwhile given that smallness," citing Mitchell v. JCG Indus., Inc., 745 F.3d 837, 841 (7th Cir. 2014). Great Lakes contends that the circumstances of the case support the application of that maxim. It submits the declaration of its director of servicing operations, Jamie Brown, who says that 1,626 class members (out of approximately 137,000) overpaid their accounts by less than five dollars, with a mean amount of $1.65, and a total amount of $2,689.53.Brown also says that Great Lakes hasn't received updated contact information from those class members since they paid off their loans, which was several years ago. Under these circumstances, Great Lakes contends that it isn't "economically rational" to provide the class members with refunds. And because Great Lakes doesn't have updated contact information for the class members, many checks would likely be returned as undeliverable. The process would be more complicated for class members whose accounts were transferred to a different servicer because Great Lakes would have to request account records from those other servicers. Great Lakes estimates that it would take "several hundred hours" of employee time to complete the necessary tasks. In light of these administrative difficulties, Great Lakes proposes two solutions. The first is to allow Great Lakes to donate the approximately $2,700 to an appropriate charity, which is what often occurs in class action settlements to distribute small or unclaimed amounts. The second is to exclude from the class those who overpaid less than five dollars and then enter judgment. Great Lakes points out that Dawson, who is the only named plaintiff, isn't one of the class members who overpaid their loans by less than five dollars, so Great Lakes contends that she is not an adequate representative of those class members. In her response, Dawson doesn't dispute Great Lakes' estimates of the number of class members affected, the total amount owed to those class members, or the logistical difficulties Great Lakes identifies for providing refunds to those class members. She also doesn't challenge Great Lakes contention that Dawson isn't an adequate representative for the remaining class members with live claims. And she doesn't ask the court to hold a trial to determine the class's entitlement to less than $3,000. Rather, her only response is that she wishes to preserve for appeal any arguments she has asserted previously, without identifying anything specific. Under these circumstances, Judge Peterson concludes that the appropriate resolution is to exclude from the class those borrowers who overpaid their accounts by less than five dollars. As Great Lakes points out, donations to charity, or cy pres awards, are used to resolve undistributed amounts for settlement funds. They aren't a substitute for damages, so the court isn't persuaded that a cy pres award is appropriate here. It also isn't clear whether the de minmis doctrine applies. But even if the de minmis doctrine doesn't apply, Great Lakes is correct that Dawson isn't an adequate class representative under Federal Rule of Civil Procedure 23 for borrowers with small overpayments because there is no dispute that she isn't one of those borrowers. A named plaintiff may not serve as a class representative when she "has suffered a different kind of injury from other members of the class." When a class representative is inadequate, it can be appropriate under some circumstances to allow class counsel to identify a substitute. But the class counsel has neither identified an appropriate substitute nor sought permission to look for one. So Judge Peterson has no choice but to exclude from the class the borrowers with overpayments of less than five dollars. Taking this path preserves those class members' right to request a refund if they wish. Once the borrowers with small overpayments are excluded, there are no remaining disputes to be resolved. Judge Peterson court grants summary judgment to Great Lakes on the claims of all other class members. So she directs the clerk of court to enter judgment in Great Lakes' favor and close the case. The orders certifying the class are amended to exclude from the class all borrowers who overpaid their student loans by less than five dollars. The Clerk of Court is directed to enter judgment in favor of the Defendants on the remaining claims and close the case. A full-text copy of the Court's May 24, 2022 Order is available at https://tinyurl.com/5dep79tm from Leagle.com. HCF MANAGEMENT: Pike Sues Over Failure to Pay Proper Overtime ------------------------------------------------------------- DEBORAH PIKE, individually and on behalf of all others similarly situated, Plaintiff v. HCF MANAGEMENT, INC., Defendant, Case No. 1:22-cv-00165-SPB (W.D. Penn., May 27, 2022) brings this complaint as a class and collective action against the Defendant to recover damages as a result of its alleged violations of the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act, and the Pennsylvania Wage Payment and Collection Law. The Plaintiff, who has worked for the Defendant as a non-exempt, hourly-paid and salaried workers, claims that the Defendant has failed to keep accurate track records of the Plaintiff's and other similarly situated employees' hours worked consequently after its timekeeping system was affected and compromised by the Kronos ransomware attack by hackers. As a result, the Defendant failed to properly compensate its employees. Instead of paying them for the hours they actually worked, the Defendant reduced their pay without documentation. Thus, despite working more than 40 hours per week, the Defendant also failed to properly pay their lawfully earned overtime at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek, the Plaintiff asserts. HCF Management, Inc. is an Ohio-based health care services entity with operations across western Pennsylvania and Ohio. [BN] The Plaintiff is represented by: Troy M. Frederick, Esq. Beth A. Frederick, Esq. FREDERICK LAW GROUP, PLLC 836 Philadelphia Street Indiana, PA 15701 Tel: (724) 471-2056 Fax: (724) 801-8358 E-mail: TMF@FrederickLG.com BAF@FrederickLG.com HUDSONVILLE CREAMERY: Jimenez Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Hudsonville Creamery and Ice Cream Company, LLC. The case is styled as Vanessa Jimenez, individually, and on behalf of all others similarly situated v. Hudsonville Creamery and Ice Cream Company, LLC, Case No. 1:22-cv-04372 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Hudsonville Creamery & Ice Cream Company -- https://www.hudsonvilleicecream.com/ -- operates as an ice cream manufacturing firm.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com HYUNDAI CAPITAL: Scherer Sues Over Improper Business Schemes ------------------------------------------------------------ WILLIAM R. SCHERER III, individually and on behalf of all others similarly situated, Plaintiff v. HYUNDAI CAPITAL AMERICA, INC. d/b/a KIA FINANCE AMERICA; and HYUNDAI MOTOR FINANCE, Defendant, Case No. 0:22-cv-61014-WPD (S.D., Fla., May 27, 2022) is an action challenging the Defendant's alleged wrongful business practices of increasing the predetermined vehicle lease buyout cost and instead requiring payment of excessive fees to lessees who have sought to exercise their purchase option at the end of the lease term. According to the complaint, at the end of a consumer motor vehicle lease, a lessee has the option to purchase the vehicle. When that option to purchase is exercised, the lessor may only charge the amounts expressly disclosed in the lease. Despite this, the Defendant failed to honor the lease terms and violated applicable law by requiring a lessee to pay additional undisclosed fees and amounts when the lease buy-out option was exercised, says the suit. HYUNDAI CAPITAL AMERICA, INC. provides commercial finance services. The Company offers vehicle financing and leasing services. [BN] The Plaintiff is represented by: Cristina M. Pierson, Esq. Matthew DellaBetta, Esq. KELLEY UUSTAL, PLC 500 North Federal Highway, Suite 200 Fort Lauderdale, FL 33301 Telephone: (954) 522-6601 Facsimile: (954) 522-6608 Email: cmp@kulaw.com mdb@kulaw.com IANTHUS CAPITAL: Faces Cedeno Securities Suit --------------------------------------------- Ianthus Capital Holdings, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that on May 5, 2020, Peter Cedeno, a shareholder of the company, filed a putative class action lawsuit with the court against the company and is seeking damages for an unspecified amount against the company, its former Chief Executive Officer, its current Chief Financial Officer and others for alleged false and misleading statements regarding certain proceeds from the issuance of long-term debt, that were held in escrow to make interest payments in the event of default on such long-term debt. Ianthus Capital Holdings, Inc. is an owner and operator of licensed cannabis cultivation, processing and dispensary facilities, and a developer, producer and distributor of innovative branded cannabis and CBD products in New York, United States. IANTHUS CAPITAL: Faces Hi-Med Securities Suit in NY Court --------------------------------------------------------- Ianthus Capital Holdings, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that it is facing a securities suit filed by Hi-Med LLC, an equity holder and one of the Lenders holding an unsecured debenture of the company. On April 19, 2020, Hi-Med LLC filed a complaint with the United States District Court for the Southern District of New York against the company and certain of the company's current and former directors and officers and other defendants. Hi-Med is seeking damages of an unspecified amount and the full principal amount of the unsecured debenture against the company, for among other things, alleged breaches of provisions of the Unsecured Debentures and the related Debenture Purchase Agreement as well as alleged violations of Federal securities laws, including Sections 10(b), 10b-5 and 20(a) of the Exchange Act and common law fraud relating to alleged false and misleading statements regarding certain proceeds from the issuance of long-term debt that were held in escrow to make interest payments in the event of a default thereof. On July 9, 2020, the court issued an order consolidating the class action matter with the shareholder class action referenced below. On July 23, 2020, Hi-Med and the defendants filed a stipulation and proposed scheduling and coordination order to coordinate the pleadings for the consolidated actions. On September 4, 2020, Hi-Med filed an amended complaint. On October 14, 2020, the court issued a stipulation and scheduling and coordination order, which required that the defendants answer, move, or otherwise respond to the Hi-Med amended complaint no later than November 20, 2020. On November 20, 2020, the company and certain of its current officers and directors filed a motion to dismiss the Hi-Med amended complaint. On January 8, 2021, Hi-Med filed an opposition to the Motion to Dismiss. The company and certain of its current officers and directors' reply were filed on February 22, 2021. In a memorandum of opinion dated August 30, 2021, the SDNY granted the company's and certain of its officers and directors' motion to dismiss the Hi-Med amended complaint. The court indicated that Hi-Med may move for leave to file a proposed second amended complaint by September 30, 2021. On September 30, 2021, Hi-Med filed a motion for leave to amend the Hi-Med amended complaint. On October 28, 2021, the parties filed a Stipulation and Proposed Scheduling Order Regarding Hi-Med's motion for leave to file a second amended complaint. In November 3, 2021, the court so-ordered the stipulation and Hi-Med's second amended complaint was deemed filed as of this date. On December 20, 2021, the company and its current named officers and directors filed a motion to dismiss Hi-Med's second amended complaint. Hi-Med's opposition to the company's and its current named officers and directors' motion to dismiss was filed on February 3, 2022. The company and its current named officers and directors' reply to Hi-Med's opposition was filed on March 21, 2022. The Motion to Dismiss Hi-Med's second amended complaint remains pending before the court. On June 29, 2020, Hi-Med filed a claim in the court, which mirrors the Hi-Med complaint. Ianthus Capital Holdings, Inc. is an owner and operator of licensed cannabis cultivation, processing and dispensary facilities, and a developer, producer and distributor of innovative branded cannabis and CBD products in New York, United States. IANTHUS CAPITAL: Faces Kwong Securities Suit in Toronto ------------------------------------------------------- Ianthus Capital Holdings, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that a class action lawsuit was filed against the company alleging statutory and common law misrepresentation. In July 23, 2020, Blue Sky Realty Corporation filed a putative class action against the company, its former Chief Executive Officer and its Chief Financial Officer in Toronto. In September 27, 2021, the court granted leave for the plaintiff to amend its claim. In the Amended Claim, the plaintiff seeks to certify the proposed class action on behalf of two classes. Plaintiff alleges statutory and common law misrepresentation and seeks an unspecified amount of damages together with interest and costs. The plaintiff also alleges common law oppression for releasing certain statements allegedly containing misrepresentations inducing Class B members to hold the company's securities beyond April 5, 2020. No certification motion has been scheduled. The amended claim also changed the named plaintiff from Blue Sky Realty Corporation to Timothy Kwong. The hearing date for the motion for leave to proceed with a secondary market claim under the Securities Act (Ontario) has been vacated. Ianthus Capital Holdings, Inc. is an owner and operator of licensed cannabis cultivation, processing and dispensary facilities, and a developer, producer and distributor of innovative branded cannabis and CBD products in New York, United States. ILLUMINATE EDUCATION: Chung Files Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Illuminate Education, Inc. The case is styled as Sarah Chung, individually and on behalf of all others similarly situated v. Illuminate Education, Inc., Case No. 1:22-cv-03110 (E.D.N.Y., May 26, 2022). The nature of suit is stated Fraud or Truth-In-Lending. Illuminate -- http://www.illuminateed.com/-- provides a streamlined solution that helps educators to accurately assess learning, identify needs, align whole child supports, and drive school improvement in order to equitably accelerate growth for every learner.[BN] The Plaintiff is represented by: Spencer I. Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Road Ste 412 Great Neck, NY 11021 Phone: (516) 268-7080 Fax: (516) 234-7800 Email: spencer@spencersheehan.com INTERACTIVE BROKERS: Batchelar Files Bid for Class Certification ---------------------------------------------------------------- In the class action lawsuit captioned as ROBERT SCOTT BATCHELAR, v. INTERACTIVE BROKERS, LLC, INTERACTIVE BROKERS GROUP, INC., and THOMAS A. FRANK, Case No. 3:15-cv-01836-AWT (D. Conn.), the Plaintiff asks the Court to enter an order, pursuant to Rule 23 of the Federal Rules of Civil Procedure: 1. certifying a class or alternative classes; 2. appointing him as class representative; and 3. appointing his counsel as class counsel. The Plaintiffs ask the Court to certify a damages class and injunctive relief class defined as All United States residents who at any time from Dec. 18, 2013 to date of trial had margin accounts with IB, which accounts had trades executed by the Auto-Liquidation Software. Interactive Brokers is an American multinational brokerage firm. It operates the largest electronic trading platform in the U.S. by number of daily average revenue trades. A copy of the Plaintiff's motion to certify class dated May 24, 2022 is available from PacerMonitor.com at https://bit.ly/38YFtcS at no extra charge.[CC] The Plaintiff is represented by: Gary N. Reger, Esq. ORGAIN, BELL AND TUCKER, LLP 207 San Jacinto Blvd., Suite 301 Austin, TX 78701 Telephone: (512) 861-0441 E-mail: gnr@obt.com - and - L. DeWayne Layfield, Esq. LAW OFFICE OF L. DEWAYNE LAYFIELD, PLLC P.O. Box 3829 Beaumont, TX 77704 Telephone: (409) 832-1891 E-mail: dewayne@layfieldlaw.com - and - William M. Bloss, Esq. Christopher M. Mattei, Esq. KOSKOFF, KOSKOFF & BIEDER, P.C. 350 FAIRFIELD AVENUE BRIDGEPORT, CT 06604 Telephone: (203)336-4421 Facsimile: (203)368-3244 E-mail: bbloss@koskoff.com cmattei@koskoff.com J&M DELI: Fails to Pay Minimum & OT Wages, Morales Suit Claims -------------------------------------------------------------- MARCOS MORALES, individually and on behalf of all others similarly situated, Plaintiff v. J&M DELI CORP. and NEW 45 FARM INC. d/b/a 45 DELI, JIN HWAN OH and KIM IN YONG, as individuals, Defendants, Case No. 1:22-cv-04394 (S.D.N.Y., May 27, 2022) is a collective action complaint brought against the Defendants for their alleged violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was employed by the Defendants from in or around January 2018 until in or around January 2020 as a deli worker and food preparer while performing related miscellaneous duties for the Defendants. According to the complaint, the Plaintiff was required by the Defendants to regularly work 54 hours or more hours each week throughout the entirety of his employment with the Defendants. However, the Defendants paid him a flat weekly rate of approximately $570.00 per week for all hours he has worked. The Defendants allegedly failed to pay him overtime compensation at the rate of one and one-half times his regular rate of pay for all hours he worked in excess of 40 per workweek. In addition, the Defendants failed to pay him the legally prescribed minimum wage for all his hours worked from January 2019 until in or around January 2020. Moreover, the Defendants willfully failed to post notices of the minimum wage and overtime requirements in a conspicuous place at the location of their employment, willfully failed to keep payroll records, and willfully failed to provide the Plaintiff with a written notice of his regular rate of pay as well as with any wage statements upon each payment of his wages, says the suit. On behalf of himself and all other similarly situated employees, the Plaintiff seeks all unpaid minimum wages and overtime wages, as well as liquidated damages, pre- and post-judgment interest, litigation costs with reasonable attorneys', and other relief as the Court deems necessary and proper. J&M Deli Corp. & New 45 Farm, Inc. operate a retail food store under the name 45 Deli. Jin Hwan Oh and Kim In Yong are co-owners of the Corporate Defendants. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Tel: (718) 263-9591 J. QUEEN NEW YORK: Miller Files ADA Suit in W.D. New York --------------------------------------------------------- A class action lawsuit has been filed against J. Queen New York Inc. The case is styled as Kimberly Miller, on behalf of herself and all other persons similarly situated v. J. Queen New York Inc., Case No. 1:22-cv-00401 (W.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. J. Queen New York -- https://jqueen-ny.com/ -- offers timeless bedding, elegantly styled. Upgrade your home with luxurious comforter sets, quilts, window treatments, and home decor.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: jeffrey@gottlieb.legal JACK ROGERS: Miller Files ADA Suit in W.D. New York --------------------------------------------------- A class action lawsuit has been filed against Jack Rogers, LLC. The case is styled as Kimberly Miller, on behalf of herself and all other persons similarly situated v. Jack Rogers, LLC, Case No. 1:22-cv-00402 (W.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Jack Rogers -- https://www.jackrogersusa.com/ -- is a retail women's footwear company that offers sandals, flats, sneakers, boots, and booties, as well as men’s and kids’ shoes, and accessories.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: jeffrey@gottlieb.legal JANTZEN APPAREL: Jimenez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Jantzen Apparel, LLC. The case is styled as Vanessa Jimenez, individually, and on behalf of all others similarly situated v. Jantzen Apparel, LLC, Case No. 1:22-cv-04378 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Jantzen -- https://jantzen.com/ -- is a brand of swimwear that was established in 1916 and first appeared in the city of Portland, Oregon.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com JUUL LABS: Causes Youth E-Cigarette Crisis, Wyoming County Claims ----------------------------------------------------------------- WYOMING COUNTY BOARD OF EDUCATION, WYOMING COUNTY, STATE OF WEST VIRGINIA, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-03127 (N.D. Cal., May 27, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the West Virginia Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Wyoming County Board of Education (WCBOE) is a school district with its administrative offices located at 155 Park Street, Pineville, West Virginia. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: Andy D. Birchfield, Jr., Esq. Joseph G. VanZandt, Esq. Davis S. Vaughn, Esq. BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC 234 Commerce Street Montgomery, AL 36103 Telephone: (334) 269-2343 E-mail: Andy.Birchfield@BeasleyAllen.com Joseph.VanZandt@BeasleyAllen.com Davis.Vaughn@BeasleyAllen.com - and – Charles R. "Rusty" Webb, Esq. THE WEBB LAW CENTRE, PLLC 716 Lee St. E. Charleston, WV 25301 Telephone: (304) 344-9322 E-mail: Rusty@RustyWebb.com JUUL LABS: E-Cigarette Ads Target Youth, Northeast School Claims ---------------------------------------------------------------- NORTHEAST SCHOOL CORPORATION, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-03112 (N.D. Cal., May 27, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Indiana Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Northeast School Corporation is a public school district with its offices located in Shelburn, Indiana. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: Thomas P. Cartmell, Esq. Jonathan P. Kieffer, Esq. Tyler W. Hudson, Esq. WAGSTAFF & CARTMELL LLP 4740 Grand Ave., Ste. 300 Kansas City, MO 64112 Telephone: (816) 701-1100 Facsimile: (816) 531-2372 E-mail: tcartmell@wcllp.com jpkieffer@wcllp.com thudson@wcllp.com - and – Kirk J. Goza, Esq. Brad Honnold, Esq. GOZA & HONNOLD LLC 9500 Nall Ave., Ste. 400 Overland Park, KS 66207 Telephone: (913) 451-3433 E-mail: kgoza@gohonlaw.com bhonnold@gohonlaw.com - and – Andy D. Birchfield, Jr., Esq. Joseph G. VanZandt, Esq. BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC 234 Commerce Street Montgomery, AL 36103 Telephone: (334) 269-2343 E-mail: Andy.Birchfield@BeasleyAllen.com Joseph.VanZandt@BeasleyAllen.com - and – Rahul Ravipudi, Esq. PANISH SHEA & BOYLE LLP 11111 Santa Monica Boulevard, Suite 700 Los Angeles, CA 90025 Telephone: (310) 477-1700 Facsimile: (310) 477-1699 E-mail: ravipudi@psblaw.com - and – John P. Fiske, Esq. BARON & BUDD, P.C. 11440 West Bernardo Court Suite 265 San Diego, CA 92127 Telephone: (858) 251-7424 Facsimile: (214) 520-1181 E-mail: jfiske@baronbudd.com - and – Khaldoun Baghdadi, Esq. WALKUP MELODIA KELLY & SCHOENBERGER, P.C. 650 California Street, 26th Floor San Francisco, CA 94108 Telephone: (415) 617-1269 E-mail: kbaghdadi@walkuplawoffice.com JUUL LABS: Promotes E-Cigarette Use to Youth, Western School Says ----------------------------------------------------------------- WESTERN SCHOOL CORPORATION, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-03114 (N.D. Cal., May 27, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Indiana Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Western School Corporation is a public school district with its offices located in Russiaville, Indiana. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: Thomas P. Cartmell, Esq. Jonathan P. Kieffer, Esq. Tyler W. Hudson, Esq. WAGSTAFF & CARTMELL LLP 4740 Grand Ave., Ste. 300 Kansas City, MO 64112 Telephone: (816) 701-1100 Facsimile: (816) 531-2372 E-mail: tcartmell@wcllp.com jpkieffer@wcllp.com thudson@wcllp.com - and – Kirk J. Goza, Esq. Brad Honnold, Esq. GOZA & HONNOLD LLC 9500 Nall Ave., Ste. 400 Overland Park, KS 66207 Telephone: (913) 451-3433 E-mail: kgoza@gohonlaw.com bhonnold@gohonlaw.com - and – Andy D. Birchfield, Jr., Esq. Joseph G. VanZandt, Esq. BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC 234 Commerce Street Montgomery, AL 36103 Telephone: (334) 269-2343 E-mail: Andy.Birchfield@BeasleyAllen.com Joseph.VanZandt@BeasleyAllen.com - and – Rahul Ravipudi, Esq. PANISH SHEA & BOYLE LLP 11111 Santa Monica Boulevard, Suite 700 Los Angeles, CA 90025 Telephone: (310) 477-1700 Facsimile: (310) 477-1699 E-mail: ravipudi@psblaw.com - and – John P. Fiske, Esq. BARON & BUDD, P.C. 11440 West Bernardo Court Suite 265 San Diego, CA 92127 Telephone: (858) 251-7424 Facsimile: (214) 520-1181 E-mail: jfiske@baronbudd.com - and – Khaldoun Baghdadi, Esq. WALKUP MELODIA KELLY & SCHOENBERGER, P.C. 650 California Street, 26th Floor San Francisco, CA 94108 Telephone: (415) 617-1269 E-mail: kbaghdadi@walkuplawoffice.com KELLOGG SALES: Court Grants Bid to Dismiss Harris Class Complaint ----------------------------------------------------------------- In the case, ANITA HARRIS, individually and on behalf of all others similarly situated, Plaintiff v. KELLOGG SALES COMPANY, Defendant, Case No. 21-CV-01040-SPM (S.D. Ill.), Judge Stephen P. McGlynn of the U.S. District Court for the Southern District of Illinois grants Kellogg's Motion to Dismiss the Complaint. I. Introduction Plaintiff Harris filed a proposed class action Complaint alleging that the labeling for Kellogg's Strawberry Pop-Tarts is misleading because the filling contains other fruits. Pending before the Court is Defendant Kellogg's Motion to Dismiss the Complaint and memorandum in support. Harris filed a response to the Motion and Kellogg's replied. II. Background Kellogg manufactures, labels, markets, and sells toaster pastries labeled as "Frosted Strawberry" under the Pop Tarts brand. Harris purchased the pastries "on one or more occasions at stores including Walmart" in Cahokia, Illinois in 2020 and 2021. Kellogg only promotes the strawberry content of the pastries in its labeling on the front of the box. The pastries' description as "Frosted Strawberry - Toaster Pastries," is false, misleading, and deceptive because they contain a relatively significant amount of non-strawberry fruit ingredients, specifically pears and apples. To trick the consumer into thinking that there was a higher concentration of strawberries in the filling, the filling contained red synthetic food coloring. The pastries were sold at a higher compared price than they "would otherwise be sold for, absent the misleading representations and omissions." Harris would not have purchased the pastries or paid as much if she had known about the lack of strawberry content and, as a result, she suffered damages. Ms. Harris claimed that Kellogg's engaged in deceptive business practices in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"); breach of warranty; negligent misrepresentation; fraud; and unjust enrichment. III. Analysis Judge McGlynn finds that the case is substantially similar to a case the Court previously dismissed, Floyd v. Pepperidge Farm, Inc., 2022 WL 203071 (S.D. Ill. Jan. 24, 2022). In that case, the plaintiff claimed that the packaging for Pepperidge Farm's "Golden Butter" crackers was misleading because "even though the crackers contain butter," they also contained a "non-de minimis amount of butter substitutes -- vegetable oils." The plaintiff claimed that "she wanted to consume a cracker which contained more butter than it did and did not contain butter substitutes where butter could be used." Injecting some common sense into the matter, the Court dismissed the plaintiff's ICFA claims, reasoning that there were no "untruths on the packaging" or deception because the crackers were golden-colored and contained butter. In the case, like in Floyd, even viewing all of the allegations in the amended complaint in a light most favorable to Harris, the Kellogg's Strawberry Pop-Tarts label is, on its face, not deceptive, nor does it lead to consumer confusion more generally, Judge McGlynn holds. The front of the pastries' packaging did not make a claim regarding the amount of strawberry contained in the pastries' filling and Harris conceded that the filling does contain some strawberries. "What matters most is how real consumers understand and react to the advertising." Where plaintiffs base deceptive advertising claims on unreasonable or fanciful interpretations of labels or other advertising, dismissal on the pleadings may well be justified. Harris' interpretation of the pastries' label is unreasonable and not grounded in the reality of how the public understands and reacts to product advertising. Accordingly, relief is foreclosed and Harris' claim under ICFA is dismissed with prejudice. Ms. Harris' remaining claims rely on the same theory of deception and would impose the same labeling requirement. Therefore, all of her remaining claims are also dismissed with prejudice. IV. Conclusion For the reasons he set, Judge McGlynn grants Defendant Kellogg's Motion to Dismiss. Harris' Complaint is dismissed with prejudice. A full-text copy of the Court's May 24, 2022 Memorandum & Order is available at https://tinyurl.com/p6f68kp8 from Leagle.com. KEYPOINT GOVERNMENT: Appeals Reconsideration Bid Denial in Brayman ------------------------------------------------------------------ Keypoint Government Solutions, Inc. filed an appeal from a court ruling entered in the lawsuit entitled RACHEL BRAYMAN, individually and on behalf of all other similarly situated individuals, v. KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Case No. 1:18-cv-00550-WJM-NRN, in the United States District Court for the District of Colorado-Denver. As reported in the Class Action Reporter, the Plaintiff brings the action against KeyPoint for alleged violations of the Fair Labor Standards Act ("FLSA") and violations of California law. The Plaintiff's FLSA and California law claims concern KeyPoint's alleged failure to properly compensate a certain class of employees known as "Investigators" for overtime hours worked, as well as other employment and wage violations. KeyPoint moved to compel arbitration of California state law claims and strike related Rule 23 class action allegations. On Feb. 4, 2021, KeyPoint's request that the Court compel the California Plaintiffs to arbitrate their state law claims, strike Plaintiffs' Rule 23 Class allegations as to the arbitration agreement signatories, and stay the remaining proceedings pending arbitration was denied. On March 31, 2022, the Court granted in part KeyPoint's Motion to Clarify the Court's Order Denying its Motion to Compel Arbitration to the extent it seeks clarification of the Court's February 4, 2021 Order, and denied it in all other respects. KeyPoint's Amended Motion for Decertification was also denied. Meanwhile, the Plaintiffs' Amended Motion for Final Certification of the FLSA Collective was granted, and the Court certified a FLSA Collective Action class. The Plaintiffs' Amended Motion for Rule 23 Class Certification was also granted. Plaintiffs Dana McCarthy and Adriana Ponce were approved as Rule 23 class representatives. The Court also appointed Nichols Kaster, PLLP as class counsel. On April 14, 2022, KeyPoint filed a motion for reconsideration, asking the Court to reconsider its March 31, 2022 Order on Pending Motions related to: (1) its denial of KeyPoint's Amended Motion for Decertification; and (2) its grant of Plaintiffs' Amended Motion for Final FLSA Certification. However, Judge William J. Martinez denied KeyPoint's request that same day. The Defendant is now appealing Judge Martinez's denial of his motion for reconsideration. The appellate case is captioned as Brayman, et al. v. Keypoint Government Solutions, Case No. 22-1168, in the United States Court of Appeals for the Tenth Circuit, filed on May 26, 2022. The briefing schedule in the Appellate Case states that: -- Docketing statement, transcript order form and notice of appearance are due on June 9, 2022 for Keypoint Government Solutions, Inc.; and -- Notice of appearance is due on June 9, 2022 for Rachel Brayman, Dana McCarthy and Adriana Ponce.[BN] Defendant-Appellant KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, is represented by: Thomas W. Carroll, Esq. Jennifer Harpole, Esq. Margaret Parnell Hogan, Esq. LITTLER MENDELSON 1900 Sixteenth Street, Suite 800 Denver, CO 80202 Telephone: (303) 629-6200 E-mail: mphogan@littler.com - and - Jacqueline Elise Kalk, Esq. LITTLER MENDELSON 80 South Eighth Street IDS Center, Suite 1300 Minneapolis, MN 55402 Telephone: (612) 630-1000 E-mail: jkalk@littler.com - and - Brandon Mita, Esq. LITTLER MENDELSON 1150 17th Street, NW, Suite 900 Washington, DC 20036 Telephone: (202) 842-3400 Plaintiffs-Appellees RACHEL BRAYMAN, individually and on behalf of all other similarly situated individuals; ADRIANA PONCE, individually and on behalf of all other similarly situated individuals; and DANA MCCARTHY, individually and on behalf of all other similarly situated individuals, are represented by: Caroline Elizabeth Bressman, Esq. Rachhana T. Srey, Esq. NICHOLS KASTER 4700 IDS Center 80 South 8th Street, Suite 4700 Minneapolis, MN 55402 Telephone: (612) 256-3200 E-mail: srey@nka.com - and - Benjamin L. Davis, III, Esq. THE LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Telephone: (410) 244-7005 E-mail: bdavis@nicholllaw.com KONINKLIJKE PHILIPS: Castay Sues Over Defective CPAP Devices ------------------------------------------------------------ JAMES J. CASTAY, JR., HUSBAND OF/AND MARYBETH CASTAY, individually and on behalf of all others similarly situated, Plaintiffs v. KONINKLIJKE PHILIPS N.V.; PHILIPS NORTH AMERICA LLC; PHILIPS HOLDING USA, INC.; and PHILIPS RS NORTH AMERICA LLC, Defendants, Case No. 2:22-cv-01542-JCZ-MBN (E.D. La., May 27, 2022) is a class action against the Defendants for products liability, manufacturing defect, and negligent design. According to the complaint, the Defendants manufactured and sold Continuous Positive Airway Pressure (CPAP) and BiLevel Positive Airway Pressure (BiLevel PAP) devices for sleep and home respiratory care, which contain polyester-based polyurethane sound abatement foam (PE-PUR Foam). The Defendants recalled CPAP and BiLevel PAP devices containing PE-PUR Foam because they determined that (a) the PE-PUR Foam was at risk for degradation into particles that may enter the devices' pathway and be ingested or inhaled by users, and (b) the PE-PUR Foam may off-gas certain chemicals during operation health risks associated to the devices. As a result of the health risks associated with the use of these devices, Mr. Castay has suffered personal injuries including a brain abscess, the necessity for a frontal craniotomy, among others, says the suit. Koninklijke Philips N.V. is a health technology company with its principal executive offices at Philips Center, Amstelplein 2, 1096 BC Amsterdam, The Netherlands. Philips North America LLC is a health technology company with its principal place of business located at 222 Jacobs Street, Floor 3, Cambridge, Massachusetts. Philips Holding USA Inc. is a holding company with its principal place of business located at 222 Jacobs Street, Floor 3, Cambridge, Massachusetts. Philips RS North America LLC is a company that manufactures and markets medical devices with its principal place of business located at 6501 Living Place, Pittsburgh, Pennsylvania. [BN] The Plaintiff is represented by: John R. Walker, Esq. Thomas H. Huval, Esq. JONES FUSSELL, LLP P.O. Box 1810 Covington, LA 70434 Telephone: (985) 246-7808 Facsimile: (985) 892-4925 E-mail: johnwalker@jonesfussell.com thuval@jonesfussell.com KRAFT HEINZ: Tarantino Suit Moved From E.D.N.Y. to N.D. Ill. ------------------------------------------------------------ The case styled KELLY TARANTINO, individually and on behalf of all others similarly situated v. THE KRAFT HEINZ COMPANY A/K/A KRAFT HEINZ FOODS COMPANY, Case No. 2:21-cv-04013, was transferred from the U.S. District Court for the Eastern District of New York to the U.S. District Court for the Northern District of Illinois on May 27, 2022. The Clerk of Court for the Northern District of Illinois assigned Case No. 1:22-cv-02807 to the proceeding. The case arises from the Defendant's alleged violations of the New York General Business Law Section 349 and the Magnuson-Moss Warranty Act, breach of express warranty, fraudulent concealment, and unjust enrichment by engaging in deceptive and misleading business practices with respect to the marketing and sales of its Kraft Mac & Cheese products in New York. The Kraft Heinz Company, also known as Kraft Heinz Foods Company, is an American multinational food company, headquartered in Chicago, Illinois. [BN] The Plaintiff is represented by: Jason P. Sultzer, Esq. Joseph Lipari, Esq. Daniel Markowitz, Esq. THE SULTZER LAW GROUP P.C. 270 Madison Avenue, Suite 1800 New York, NY 10016 Telephone: (845) 483-7100 Facsimile: (888) 749-7747 E-mail: sultzerj@thesultzerlawgroup.com liparij@thesultzerlawgroup.com markowitzd@thesultzerlawgroup.com - and – David C. Magagna Jr., Esq. Charles E. Schaffer, Esq. LEVIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 E-mail: dmagagna@lfsblaw.com cschaffer@lfsblaw.com KSF ACQUISITION: Jimenez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against KSF Acquisition Corporation. The case is styled as Vanessa Jimenez, individually, and on behalf of all others similarly situated v. KSF Acquisition Corporation, Case No. 1:22-cv-04371 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. KSF Acquisition Corporation doing business as SlimFast -- http://www.slimfast.com/-- is an American company headquartered in Palm Beach Gardens, Florida that markets an eponymous brand of shakes, bars, snacks, packaged meals, and other dietary supplement foods sold in the U.S. Canada, France, Germany, Iceland, Ireland, Latin America, and the U.K.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com LABORATORY CORP: Court Certifies Classes in Davis ADA Suit ---------------------------------------------------------- In the class action lawsuit captioned as LUKE DAVIS, JULIAN VARGAS, et al., v. LABORATORY CORPORATION OF AMERICA HOLDINGS, Case No. 2:20-cv-00893-FMO-KS (C.D. Cal.), the Hon. Judge Fernando M. Olguin entered an order: 1. certifying the following classes: -- Nationwide Injunctive Class "All legally blind individuals in the United States who visited a LabCorp patient service center in the United States during the applicable limitations period and were denied full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations due to LabCorp's failure to make its e- check-in kiosks accessible to legally blind individuals;" and -- California Class "All legally blind individuals in California who visited a LabCorp patient service center in California during the applicable limitations period and were denied full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations due to LabCorp's failure to make its e-check-in kiosks accessible to legally blind individuals;" 2. appointing Luke Davis and Julian Vargas as the representatives of the Nationwide Class and Vargas as the representative of the California Class; and 3. appointing the law firms of Nye, Stirling, Hale & Miller, LLP and Handley, 4 Farah & Anderson, PLLC as class counsel. The Plaintiffs assert claims for violations of: (1) the Americans with Disabilities Act (ADA); (2) California's Unruh Civil Rights Act; and (3) California's Disabled Persons Act (CDPA). The Unruh Act and CDPA claims are brought by Vargas on behalf of himself and a putative California class, while the remaining federal claims are brought by plaintiffs on behalf of the Nationwide Injunctive Class. The Plaintiffs seek declaratory and injunctive relief, statutory damages, and attorney's fees. The Plaintiffs do "not seek class recovery for actual damages, personal injuries or emotional distress that may have been caused by defendant's conduct." The Plaintiffs allege that LabCorp discriminates against them and other visually impaired individuals, "by refusing and failing to provide auxiliary aids and services to Plaintiffs, and by requiring [them] to rely upon other means of communication that are inadequate to provide equal opportunity to participate in and benefit from Defendant's health care services free from discrimination." A copy of the Court's order dated May 23, 2022 is available from PacerMonitor.com at https://bit.ly/3PMutzE at no extra charge.[CC] LOCUST MEDICAL: Seeks Denial of Jackson Class Cert Bid ------------------------------------------------------- In the class action lawsuit captioned as GERARD JACKSON, individually and on behalf of all others similarly situated, v. LOCUST MEDICAL, LLC, Case No. 4:22-cv-00424-MWB (M.D. Pa.), the Defendant asks the Court to enter an order denying class certification of the Plaintiff's Complaint. As set forth in the contemporaneously filed brief, Jackson has failed to qualify the matter for class certification. Locust Medical, LLC respectfully requests that this Court enter the proposed Order denying class certification of Plaintiff Gerard Jackson's complaint. A copy of the Defendant's motion dated May 23, 2022 is available from PacerMonitor.com at https://bit.ly/3Ncje1N at no extra charge.[CC] The Defendant is represented by: Faith M. Lucchesi, Esq. DE BOEF LUCCHESI, PC 1402 S. Atherton Street State College, PA 16801 Telephone: (814) 231-4050 E-mail: Faith@DLASC.com MCCLATCHY CO: Bid to Compel Arbitration in Kelly TCPA Suit Denied ----------------------------------------------------------------- In the case, Robert Kelly, Eryn Learned, and Kerry Wano, on behalf of themselves and all others similarly situated, Plaintiffs v. The McClatchy Company, LLC, a Delaware Corporation, Defendants, Case No. 2:21-cv-01960-KJM-JDP (E.D. Cal.), Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California denies the Defendant's motion to compel arbitration of the Plaintiffs' claims under the Telephone Consumer Protection Act. I. Background Plaintiffs Robert Kelly, Eryn Learned and Kerry Wano bring the proposed class action under the TCPA, 47 U.S.C. Section 227. Defendant McClatchy is a publishing company, which operates 29 local newspapers in 14 states. Each Plaintiff and potential class member purchased a subscription to a McClatchy publication. Every individual who subscribes to a McClatchy newspaper must agree to be bound by the company's Terms of Service. The "Terms of Service are identical for each newspaper, except for the information specific to the newspaper." Each agreement's provisions allow a subscriber to "terminate these Terms of Service or the subscriber's account by: (a) discontinuing use and (b) destroying and removing all copies of Content in the subscriber's possession and control. The Terms of Service also include a "Dispute Resolution and Arbitration" provision, which provides that the subscriber and McClatchy "agree that any Subject Legal Claim that either [party] may have must be resolved through binding individual arbitration before the American Arbitration Association using its Consumer Arbitration Rules." The agreement makes two exceptions for individual actions in small claims court and enforcement of patents, trademarks, copyrights or trade secrets. The Terms of Service incorporate a Privacy Policy by reference, which acknowledges that McClatchy collects phone numbers and other contact information when a person registers for a McClatchy service. In the section discussing what McClatchy does with the information it collects, the Privacy Policy notes "first and foremost, McClatchy uses the subscriber's information to help subscribers use and navigate McClatchy Services." Nowhere does the Privacy Policy or Terms of Service document mention the Defendant's right to use information it gathered while an individual was subscribed to later solicit renewal of a subscription after the Terms of Service have ceased to apply by virtue of a customer's cancellation of a subscription. The Privacy Policy also provides that individuals "can ask the Defendant to unsubscribe from our mail or telephone solicitations." The Plaintiffs eventually canceled their respective subscriptions, and then began receiving unwanted calls from McClatchy soliciting a renewal. They each told the Defendant to stop calling, but the calls continued. They then filed the case in the Western District of Washington, bringing two claims against McClatchy for two violations of the TCPA: Making telemarketing calls to individuals listed on the National Do Not Call Registry without written consent and continuing calls despite receiving "do not call" requests. The Washington district court transferred the case to this district. As noted, the Defendant moves to compel arbitration. The Plaintiffs oppose. The Defendant replied. The Court submitted the matter without oral argument. II. Analysis The parties do not dispute that they entered into an arbitration agreement. The Plaintiffs contend, however, that the arbitration agreement terminated with the cancellation of their subscriptions. They also argue their claims fall outside the scope of the arbitration clause, and that they did not agree an arbitrator would resolve their current disputes. Judge Mueller concludes that the arbitration agreement does not cover the dispute at issue. She holds that the Defendant did not continually call the Plaintiffs to enforce a provision of the agreement the Plaintiffs failed to meet prior to termination. The parties' dispute did not concern a right that "survived expiration of the remainder of the agreement," as the Plaintiffs' "TCPA claims were entirely unrelated to the parties' prior relationship." Similarly, the Terms and Conditions and Privacy Policy in the case provide that the Plaintiffs agreed to give the Defendant their contact information, but there is no language supporting the Defendant's right to continue contact indefinitely after termination, including with repeated "do not call" requests. III. Conclusion For these reasons, Judge Mueller denies the motion to compel arbitration. A full-text copy of the Court's May 25, 2022 Order is available at https://tinyurl.com/4adrs295 from Leagle.com. MCLEOD HEALTHCARE: Hourly Employee Class Certified in Wilkes Suit ----------------------------------------------------------------- In the class action lawsuit captioned as Maya Wilkes, on behalf of herself and all others similarly situated, v. McLeod Healthcare Network, LLC, Case No. 4:22-cv-00061-JD (D.S.C.), the Hon. Judge Joseph Dawson III entered an order that the Plaintiff's FLSA claims, a collective action of the following individuals is conditionally certified for the sole purpose of sending notice and consent and in accord with the schedule and method of distribution outlined in the Joint Motion: "All hourly employees who worked for McLeod Regional Medical Center of the Pee Dee, Inc., McLeod Loris Seacoast Hospital, McLeod Health Clarendon, McLeod Health Cheraw, McLeod Medical Center–Dillon, McLeod Occupational Health, LLC, and McLeod Physician Associates II in a patient-facing position at any time within three years prior to May 23, 2022, and who were subject to the automatic meal break pay deduction." This conditional certification of the FLSA claims pursuant to 29 U.S.C. section 216(b) does not preclude and is without prejudice to Defendant's right to later contend that no claims in this action are suitable for collective or class adjudication and/or to seek decertification of the collective action. A copy of the Court's order dated May 23, 2022 is available from PacerMonitor.com at https://bit.ly/3lZCIuL at no extra charge.[CC] MDL 2724: IRPs' Claims v. Distributors in Antitrust Suit Dismissed ------------------------------------------------------------------ In the case, IN RE: GENERIC PHARMACEUTICALS PRICING ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO: Reliable Pharmacy v. Actavis Holdco U.S., Inc., Case Nos. MDL 2724, 16-MD-2724 (E.D. Pa.), Judge Cynthia M. Rufe of the U.S. District Court for the Eastern District of Pennsylvania grants the Distributor Defendants' motion to dismiss the claims brought against them by the Indirect Reseller Plaintiffs. I. Introduction The case is part of a large and complex multidistrict litigation ("MDL") concerning allegations that manufacturers engaged in an antitrust conspiracy by allocating the market for and fixing the prices of numerous generic pharmaceutical products. Within the MDL are individual cases and proposed class actions brought by different groups of plaintiffs, such as entities that purchased pharmaceuticals directly from the manufacturers (including drug purchasing cooperatives and retail pharmacy operators), third-party payors (including employee welfare benefits funds, labor unions, private individuals, and private insurers) that indirectly purchased the drugs or provided reimbursements, and states and other jurisdictions asserting claims on their own behalf or on behalf of their citizens. The Plaintiffs here, independent pharmacies and a hospital that did not purchase directly from the manufacturers (the "Indirect Reseller Plaintiffs" or "IRPs"), have filed a proposed class-action Amended Complaint alleging an overarching conspiracy by both the manufacturers of generic pharmaceuticals and by the distributors of the products. The Distributor Defendants have moved to dismiss the claims brought against them. II. Background The IRPs allege that the Distributer Defendants actively participated in a "fair share" conspiracy among generic drug manufacturers to allocate market share to ensure generic pharmaceuticals could be sold for supracompetitive prices, in violation of the Sherman Act and the antitrust statutes of every state and territory. Distributor Defendants, which represent "over 81% of the total purchasing volume of generic drugs in the United States," allegedly "understood, agreed with, and did their part to achieve the common goals of the fair share conspiracy: to prevent price erosion by 'stabilizing' and 'settling' the market, and to encourage coordinated price increases." Additionally, the IRPs allege that the Distributor Defendants went beyond merely discussing their own purchases with the manufacturers, an otherwise standard business practice, and instead "arranged anticompetitive communications that affected the market as a whole." The IRPs bring five counts against the Distributor Defendants: (1) "Violation of Sections 1 and 3 of the Sherman Act—Injunctive Relief;" (2) "Violation of Sections 1 and 3 of the Sherman Act—Damages;" (3) "Violation of State Antitrust Statutes;" (4) "Violation of State Consumer Protection Statutes;" and (5) "Unjust Enrichment." III. Discussion A. Failure to State a Sherman Act Claim The IRPs allege that the Distributor Defendants engaged in a "contract, combination, or conspiracy," which "is a per se violation of the federal antitrust laws." To state a claim for a Sherman Act conspiracy, a plaintiff must plead "enough factual matter (taken as true) to suggest that an agreement was made." Judge Rufe dismisses the IRPs' Section 1 claims against the Distributor Defendants. She finds that (i) a desire for profit does not itself constitute a conspiratorial motive; (ii) the IRPs have not alleged facts that would give rise to the inference that Distributor Defendants acted contrary to their own interests, nor do the allegations suggest a traditional conspiracy; (iii) even if IRPs had sufficiently alleged a conspiracy between the Distributor Defendants and the Manufacturer Defendants, the alleged conspiracy would not constitute a per se violation of Section 1 of the Sherman Act; (iv) there are no similar allegations supporting concerted action among the Distributor Defendants; and (v) the IRPs have not plead sufficient factual detail to show that the conduct alleged plausibly suggests an illegal conspiracy subject to per se condemnation under Section 1 of the Sherman Act. B. Antitrust Standing for Damages Claim Even if the Distributor Defendants could be held liable under the Sherman Act for the conduct alleged, the IRPs nevertheless would be ineligible to recover damages from them because they are indirect purchasers of the pharmaceuticals at issue, Judge Rufe opines. To the extent that any of the IRPs could invoke the limited co-conspirator exception, they have not alleged "complete, voluntary and substantially equal participation in an illegal practice" by the Distributor Defendants. The communication of market share and pricing information alleged is not substantially equal to the allegations that the Manufacturer Defendants allocated the markets through a "fair share" scheme. Therefore, the IRPs are still barred from recovering damages from the Distributer Defendants under Illinois Brick. C. State Law Claims The Distributor Defendants also move to dismiss IRPs' state antitrust, consumer protection, and unjust enrichment claims against them, arguing that they are all derivative of the IRPs' federal claims. The IRPs argue that the "Court has already upheld IRPs' state law claims in earlier complaints, and the claims in this Complaint were drafted in accordance with those earlier decisions." However, in the earlier decisions, the federal antitrust claims moved forward, and state law claims generally are derivative of the federal antitrust claims. The IRPs have not alleged that their claims under state law are subject to a qualitatively different standard than their Sherman Act claims. Nor have the IRPs otherwise explained why their claims that the Distributor Defendants violated 25 state antitrust statutes, 16 state consumer protection statutes, and the unjust enrichment laws of every state and territory aside from Ohio and Indiana should proceed in the absence of an overarching federal claim against the Distributor Defendants. D. Leave to Amend The Distributor Defendants seek dismissal of the IRPs' claims with prejudice "because granting leave to file a fourth version of IRPs' Complaint would be inequitable and futile," given that the IRPs have twice amended their complaint on this docket and have "countless iterations of their complaint in other dockets." The Distributor Defendants further assert that "amendment would be futile because IRPs simply cannot plead around Illinois Brick." Lastly, they argue that given the IRPs' access to voluminous amounts of discovery, they would have been able to properly plead a Sherman Act violation by now if they could. The IRPs respond that they continue to receive additional evidence of the Distributor Defendants' conduct in furtherance of the overarching conspiracy, and thus the Court should grant them leave to amend. Judge Rufe finds that the IRPs have already amended their complaint, meaning they may further amend it "only with the opposing party's written consent or the court's leave." Nevertheless, she grants leave for the IRPs to file a further amended complaint, provided that they are able to do so in conformity with her Memorandum Opinion. IV. Conclusion For the reasons she set forth, Judge Rufe grants the Distributor Defendants' Motion to Dismiss without prejudice, and the IRPS are given leave to amend their complaint. An appropriate order follows. A full-text copy of the Court's May 25, 2022 Memorandum Opinion is available at https://tinyurl.com/ytp4s2rn from Leagle.com. MDL 2887: Eichhorn-Burkhard Complaint Dismissed From Dog Food Suit ------------------------------------------------------------------ In the case, IN RE: HILL'S PET NUTRITION, INC., DOG FOOD PRODUCTS LIABILITY LITIGATION, MDL No. 2887. This Document Relates to Diana Anja Eichhorn-Burkhard v. Hill's Pet Nutrition, Inc. and Colgate-Palmolive Company, D. Kan. Case No. 19-cv-2672-JAR-TJJ, Case No. 19-md-2887-JAR-TJJ (D. Kan.), Judge Julie A. Robinson of the U.S. District Court for the District of Kansas grants the Defendants' Motion to Dismiss the Eichhorn-Burkhard Complaint. I. Introduction In January 2019, Defendant Hill's announced a voluntary recall of canned dog food products that contained elevated levels of vitamin D. In the wake of the recall, putative class-action lawsuits were filed across the country alleging harm from the purchase and use of Hill's dog food products. The Judicial Panel on Multidistrict Litigation transferred and assigned these actions to the Court for coordinated and consolidated pretrial proceedings. Plaintiff Diana Anja Eichhorn-Burkhard -- a resident of Germany who bought recalled Hill's pet food and fed it to her dog -- brings the tag-along action against Hill's and Colgate-Palmolive Co., its corporate parent, on her own behalf and as a class action on behalf of other European purchasers of recalled Hill's pet food products. The Plaintiff's Complaint raises a single claim for breach of warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. Sections 2301-2312. Now before the Court is the Defendants' Motion to Dismiss the Eichhorn-Burkhard Complaint under Fed. R. Civ. P. 12(b)(6). The motion is fully briefed, and the Court is prepared to rule. II. Background The Defendants manufacture pet food products, including dog food. Hill's is headquartered in Topeka, Kansas, and manufactures its products in the United States. Colgate, a Delaware corporation that maintains its principle executive office in New York, is the parent company of Hill's. Colgate exercises control over Hill's and derives profits from the sales of its pet food products. Defendants sell Hill's pet food products in 86 countries, including Germany and other European Union member states. In marketing and advertising materials, the Defendants represent that Hill's pet food products meet "the special nutritional needs of puppies and adult dogs," protect "vital kidney and heart function," "suppor your dog's natural ability to build lean muscle daily," and "improve & lengthen quality of life." They also state that they "only accept ingredients from suppliers whose facilities meet stringent quality standards," and "each ingredient is examined to ensure its safety." Despite these representations, Hill's recalled some of its canned dog food products in January 2019 because they contained elevated levels of vitamin D. Hill's updated the list of recalled products in February 2019 and again in March 2019. The Plaintiff, a citizen and resident of Dusseldorf, Germany, had purchased recalled Hill's dog food from her veterinarian and fed it to her dog. She claims the dog food contained toxic levels of vitamin D and caused her dog to become seriously ill. The Plaintiff styles her lawsuit as a class action. She purports to bring the suit individually and on behalf of "all persons residing in European Union member states who purchased Recalled Products and suffered damages as a result" (the "European Union Class"). She also proposes a subclass composed of "all persons residing in Germany who purchased Recalled Products and suffered damages as a result" (the "German Sub-Class"). The Complaint asserts a single claim for breach of warranty under the Magnuson-Moss Warranty Act. The Defendants now move to dismiss the Complaint for failure to state a claim under Rule 12(b)(6). III. Discussion The Magnuson-Moss Warranty Act ("MMWA") protects consumers damaged by a warrantor's failure to comply with the terms of a warranty. The Defendants argue that the Court must dismiss the Plaintiff's MMWA claim -- the only claim she asserts against them -- because the MMWA does not apply extraterritorially, and the Complaint does not allege a proper domestic application of the statute. They also argue that Plaintiff's MMWA claim fails for four additional, independent reasons: (1) the Plaintiff must, but fails to, allege an underlying state-law warranty claim; (2) the Plaintiff does not meet the MMWA's jurisdictional requirement of naming 100 plaintiffs; (3) the Plaintiff must, but did not, seek a refund or give Defendants a reasonable opportunity to cure the alleged defect before bringing suit; and (4) the Complaint cites statements that did not create written warranties within the meaning of the MMWA. Because it is dispositive, Judge Robinson reaches only the first argument for dismissal -- that the Plaintiff's MMWA claim is impermissibly extraterritorial. To this argument, the Plaintiff responds that the MMWA applies extraterritorially when, as in the case, the consumer products at issue were exported from the United States and sold abroad. Neither the Supreme Court nor any federal court of appeals has yet addressed the extraterritorial reach of the MMWA. The Court must therefore interpret the MMWA to determine whether it applies extraterritorially. As step one, Judge Robinson interprets the MMWA in light of the presumption against extraterritoriality: "Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application." The Supreme Court "has established a two-step framework for deciding questions of extraterritoriality." "The first step asks `whether the presumption against extraterritoriality has been rebutted.'" If the statute does not apply extraterritorially, "the second step of the framework asks 'whether the case involves a domestic application of the statute.'" Judge RObinson finds that there is no "clear" and "affirmative" indication in the MWWA that it applies extraterritorially, and so she concludes that it does not. She cannot interpret the MMWA's generic definition of "commerce" as an affirmative indication that the statute applies extraterritorially. And no other provision of the MMWA contains a clear and affirmative expression of extraterritorial application. What's more, the Federal Trade Commission ("FTC"), the agency charged with implementing the MMWA, has similarly interpreted the MMWA not to reach exported consumer products sold abroad. Although the FTC promulgated its interpretations of the MMWA using notice-and-comment procedures, its interpretations are self-avowedly "advisory in nature"; they are "not substantive rules" and lack "the force or effect of statutory provisions." At step two, Judge Robinson holds that because the Plaintiff's MMWA claim is impermissibly extraterritorial, she grants the Defendants' motion to dismiss. She finds that the Plaintiff urges the Court to deny the Defendants' motion to dismiss because, she contends, the MMWA applies extraterritorially. But for the reasons explained, the Court has concluded that it does not. IV. Order In light of the foregoing, Judge Robinson grants Defendants Hill's and Colgate's Motion to Dismiss the Eichhorn-Burkhard Complaint. The case is dismissed with prejudice. A full-text copy of the Court's May 24, 2022 Memorandum & Order is available at https://tinyurl.com/2p86zc42 from Leagle.com. MDL 2936: Court Amends Sched Order in Products Liability Suit ------------------------------------------------------------- In the class action lawsuit RE: SMITTY'S/CAM2 303 TRACTOR HYDRAULIC FLUID MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, Case No. (), the Hon. Judge Stephen R. Bough entered an amended scheduling order as follows: 1. Class Certification Expert Deadlines The Plaintiffs shall designate expert witnesses relating to class certification issues on or before July 29, 2022. At the time of disclosure, the Plaintiffs shall provide deposition dates within 21 days of the disclosure for the taking of those depositions. The Defendants shall designate expert witnesses relating to class certification issues on or before September 27, 2022. At the time of disclosure, Defendants shall provide deposition dates within 21 days of the disclosure for the taking of those depositions. Each party shall ensure compliance with Fed. R. Civ. P. 26(a)(2)(B) at the time of the party's expert witness designations. 2. Class Certification Briefing; Hearing Date The Plaintiffs' motion for class certification shall be filed on or before October 28, 2022. The Defendants' opposition brief shall be filed on or before December 5, 2022. The Plaintiffs' reply shall be filed on or before December 19, 2022. A class certification hearing will be held on January 5, 2023, at 9:00am. A copy of the Court's order dated May 23, 2022 is available from PacerMonitor.com at https://bit.ly/3x35aC2 at no extra charge.[CC] METROPOLITAN PROPERTY: Final Judgment & Order Entered in Shields ---------------------------------------------------------------- Judge Glen H. Davidson of the U.S. District Court for the Northern District of Mississippi, Aberdeen Division, enters Final Judgment and Order in the case, TASHAL SHIELDS and LLOYD HACHAT individually and on behalf of all others similarly situated, Plaintiffs v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY and METROPOLITAN GROUP PROPERTY AND CASUALTY INSURANCE COMPANY, Defendants, Case No. 1:19-cv-00222-GHD-RP (N.D. Miss.). The Plaintiffs filed the operative complaint, Second Amended Class Action Complaint, alleging that the Defendants violated applicable law and breached its contracts by improperly deducting Nonmaterial Depreciation from actual cash value payments when adjusting Structural Loss Claims under Illinois, Kentucky, Mississippi, Ohio, and Tennessee homeowners insurance policies. The Defendants have denied, and still deny, any liability, wrongdoing, and damages with respect to the matters alleged in the Second Amended Complaint. Representative Plaintiffs Shields and Hachat, individually and on behalf of the Settlement Class, and the Defendants agreed to settle the Action pursuant to the terms and conditions set forth in the March 10, 2022 Amended Class Action Stipulation of Settlement Agreement. On March 15, 2022, the Court granted preliminary approval of the proposed class action settlement set forth in the Agreement and provisionally certified the Settlement Class for settlement purposes only. On March 15, 2022, the Court, entered the Amended Preliminary Approval Order, preliminarily approving the Agreement, preliminarily certifying the Settlement Class for settlement purposes only, and scheduling a hearing for May 25, 2022 at 10:00 a.m. to consider final approval of the Proposed Settlement and other actions described in the Preliminary Approval Order. On March 15, 2022, the Court, entered the Amended Preliminary Approval Order, preliminarily approving the Agreement, preliminarily certifying the Settlement Class for settlement purposes only, and scheduling a hearing for May 25, 2022 at 10:00 a.m. to consider final approval of the Proposed Settlement and other actions described in the Preliminary Approval Order As part of its Amended Preliminary Approval Order, the Court certified for settlement purposes a class ("Settlement Class") defined as: All Class Members within the Illinois Settlement Class, Kentucky Settlement Class, Mississippi Settlement Class, Ohio Settlement Class or Tennessee Settlement Class (except for those explicitly excluded), which are defined as follows: a. Illinois Settlement Class means all policyholders, (except for those explicitly excluded), under any property insurance policy issued by Metropolitan, who made: (i) a Structural Loss claim for property located in the State of Illinois between June 12, 2019 and Nov. 16, 2020; and (ii) that resulted in an ACV Payment from which Nonmaterial Depreciation was withheld, or that would have resulted in an ACV Payment, but for the withholding of Nonmaterial Depreciation causing the loss to drop below the applicable deductible. b. Kentucky Settlement Class means all policyholders, (except for those explicitly excluded), under any property insurance policy issued by Metropolitan, who made: (i) a Structural Loss claim for property located in the State of Kentucky between April 1, 2019 and Nov. 16, 2020; and (ii) that resulted in an ACV Payment from which Nonmaterial Depreciation was withheld, or that would have resulted in an ACV Payment, but for the withholding of Nonmaterial Depreciation causing the loss to drop below the applicable deductible. c. Mississippi Settlement Class means all policyholders, (except for those explicitly excluded), under any property insurance policy issued by Metropolitan, who made: (i) a Structural Loss claim for property located in the State of Mississippi between Dec. 17, 2016 and Nov. 16, 2020; and (ii).that resulted in an ACV Payment from which Nonmaterial Depreciation was withheld, or that would have resulted in an ACV Payment, but for the withholding of Nonmaterial Depreciation causing the loss to drop below the applicable deductible. d. Ohio Settlement Class means all policyholders, (except for those explicitly excluded), under property insurance policy issued by Metropolitan, who made: (i) a Structural Loss claim for property located in the State of Ohio between Feb. 13, 2019 and Nov. 16, 2020; and (ii) that resulted in an ACV Payment from which Nonmaterial Depreciation was withheld, or that would have resulted in an ACV Payment, but for the withholding of Nonmaterial Depreciation causing the loss to drop below the applicable deductible. e. Tennessee Settlement Class means all policyholders, (except for those explicitly excluded), under any homeowners residential property insurance policy issued by Metropolitan, who made: (i) a Structural Loss claim for property located in the State of Tennessee between Dec. 17, 2018 and Nov. 16, 2020; and (ii) that resulted in an ACV Payment from which Nonmaterial Depreciation was withheld, or that would have resulted in an ACV Payment, but for the withholding of Nonmaterial Depreciation causing the loss to drop below the applicable deductible. The Settlement Class does not include: (i) policyholders whose claims arose under policy forms, endorsements, or riders expressly permitting the Nonmaterial Depreciation within the text of the policy form, endorsement or rider, i.e., by express use of the words depreciation and labor; (ii) policyholders who received one or more ACV Payments for a claim that exhausted the applicable limits of insurance; (iii) policyholders whose claims were denied or abandoned without an ACV Payment for any reason other than that the ACV payment was not made solely because the withholding of Nonmaterial Depreciation caused the loss to drop below the applicable deductible; (iv) Metropolitan and its officers and directors; (v) members of the judiciary and their staff to whom this Action is assigned and their immediate families; and (vi) Class Counsel and their immediate families. On May 18, 2022, the Plaintiffs applied to the Court for final approval of the terms of the Proposed Settlement and for the entry of this Final Judgment Order. On May 25, 2022, the Court held the duly noticed final approval hearing. Before the Court is the Plaintiffs' Unopposed Motion for Final Approval of Class Settlement and Motion for Service Awards to Class Representatives and Awards of Attorneys' Fees, Costs, and Litigation Expenses pursuant to Federal Rule of Civil Procedure 23(e)(2). Judge Davidson, having read and considered the Agreement and the Memoranda, having received evidence in advance of and at the hearing, and having heard argument by counsel, concludes that the Settlement Class meets all the requirements of Rule 23, the Due Process Clause of the United States Constitution, and all other applicable rules and law, granted the Plaintiffs' Motion for Final Approval and finally approved all provisions and terms of the Agreement in all respects. The Parties to the Agreement are directed to consummate the Agreement in accordance with its terms, as may be modified by subsequent orders of the Court. Timely requests for exclusion were submitted by six potential members of the Settlement Class and those potential Class Members are excluded from the Settlement Class and are free to pursue their claims against the Defendant or the Defendants as they deem appropriate. All other potential members of the Settlement Class are adjudged to be members of the Settlement Class and are bound by the Final Judgment Order and by the Agreement, including the releases provided for in the Agreement and this Final Judgment Order. The Final Judgment Order will be immediately entered as to all claims in the Action between the Representative Plaintiffs and Class Members and Metropolitan, and Final Judgment is entered approving and adopting all terms and conditions of the Settlement and the Agreement, fully and finally terminating all claims of the Representative Plaintiffs and the Settlement Class in the Action against Metropolitan, on the merits, with prejudice, and without leave to amend. Judge Davidson expressly determines that there is no just reason for delay in entering the Final Judgment Order. Pursuant to Rule 23(a) and (g), Plaintiffs Shields and Plaintiffs Hachat are appointed as the Representative Plaintiffs for the Settlement Class, and the following counsel are appointed as the counsel for the Settlement Class: Erik D. Peterson James Brandon McWherter ERIK PETERSON LAW OFFICES, PSC MCWHERTER SCOTT BOBBITT PLC 249 E. Main St. 341 Cool Springs Blvd., Suite 230 Suite 150 Franklin, TN 37067 Lexington, KY 40507 Telephone: 615-354-1144 Telephone: 800-614-1957 Facsimile: 731-664-1540 erik@eplo.law brandon@msb.law Thomas Joseph Snodgrass LARSON KING LLP 30 East 7th Street, Suite 2800 St Paul, MN 55101 Telephone: 651-312-6500 Facsimile: 651-312-6618 jsnodgrass@larsonking.com The Class Counsel's motion concerning attorneys' fees, litigation costs, and a service award is granted. Pursuant to Rule 23(h), Judge Davidson awarded the Class Counsel the total sum of $1,895,876 in attorneys' fees and costs. In addition, he awarded each of the two Representative Plaintiffs a service award of $7,500. Metropolitan will not be responsible for and will not be liable with respect to the allocation among the Class Counsel or any other person who may assert a claim thereto, of attorneys' fees and expenses awarded by the Court. Claim Settlement Payments to the Class Members who timely file a completed Claim Form will be made in the amounts, within the time period, and in the manner described in the Agreement. Judge Davidson appointed Robert Gibbs and/or Anne Veazey as the Neutral Evaluator(s) to carry out the duties and responsibilities set forth in the Agreement. The Plaintiffs, the Class Counsel, Metropolitan, and the Defendants' Counsel will not be liable for any act or omission of the Neutral Evaluator(s). Without further order of the Court, the Parties may agree to reasonably necessary extensions of time to implement any of the provisions of the Agreement. The Action is dismissed in its entirety on the merits, with prejudice, without leave to amend, and without fees or costs to any party, except as otherwise provided herein, and the case is closed. Without in any way affecting the finality of the Final Judgment Order, the Court will retain continuing jurisdiction over the Action for purposes of: (a) Enforcing the Agreement and the Proposed Settlement; (b) Hearing and determining any application by any party to the Agreement for a settlement bar order; and (c) Any other matters related or ancillary to any of the foregoing. A full-text copy of the Court's May 25, 2022 Final Judgment & Order is available at https://tinyurl.com/2s42c4eh from Leagle.com. MID-HUDSON VALLEY: Edwards Files Suit in N.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Mid-Hudson Valley Federal Credit Union. The case is styled as Reginald Edwards, on behalf of himself and all others similarly situated v. Mid-Hudson Valley Federal Credit Union, Case No. 1:22-cv-00562-TJM-CFH (N.D.N.Y., May 26, 2022). The nature of suit is stated Banks and Banking for Breach of Contract - Insurance. Mid-Hudson Valley Federal Credit Union -- https://www.mhvfcu.com/ -- provides financial services to Ulster, Dutchess, Orange, Westchester, Rockland, Putnam and Sullivan counties.[BN] The Plaintiff is represented by: Jeffrey D. Kaliel, Esq. KALIEL GOLD PLLC 1100 15th Street NW-4th Floor Washington, DC 20005 Phone: (202) 615-3948 Email: jkaliel@kalielpllc.com - and - Sophia Goren Gold, Esq. KALIEL GOLD PLLC 950 Gilman Street-Suite 200 Berkeley, CA 94710 Phone: (202) 350-4783 Email: sgold@kalielgold.com MY FAVORITE DELI: Fails to Pay Proper Wages, Romero Suit Alleges ---------------------------------------------------------------- MARTIN ROMERO, individually and on behalf of all others similarly situated, Plaintiff v. MY FAVORITE DELI, INC. (d/b/a MY FAVORITE DELI); HASSAN M. SALEM; and KHALED A. SALEH, Defendants, Case No. 1:22-cv-03159 (E.D.N.Y., May 27, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Romero was employed by the Defendant as food preparer and sandwich maker. MY FAVORITE DELI, INC. (d/b/a MY FAVORITE DELI) owns and operates a deli and sandwich shop, located at Brooklyn, NY. [BN] The Plaintiff is represented by: Catalina Sojo, Esq. CSM LEGAL, P.C 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 MYRON CORP: Jimenez Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Myron Corp. The case is styled as Vanessa Jimenez, individually, and on behalf of all others similarly situated v. Myron Corp., Case No. 1:22-cv-04374 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Myron -- https://www.myron.com/ -- provides promotional products to businesses of all sizes.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com NASHVILLE, TN: Harris Ordered to File Amended Complaint v. DCSO --------------------------------------------------------------- In the case, VAUGHN HARRIS, et al., Plaintiffs v. CITY OF NASHVILLE, TENNESSEE, et al., Defendants, Case No. 3:22-cv-00221 (M.D. Tenn.), Judge Aleta A. Trauger of the U.S. District Court for the Middle District of Tennessee, Nashville Division, grants Plaintiff Harris permission to proceed in forma pauperis and orders him to file an amended complaint. I. The Pleadings On March 31, 2022, a complaint under 42 U.S.C. Section 1983 was filed by Vaughn Harris, Lacory Lytle, and Bobby Mosley, three pretrial detainees in the custody of the Davidson County Sheriff's Office (DCSO) in Nashville, Tennessee. Proceeding pro se, these inmates sue the City of Nashville, Davidson County Sheriff Daron Hall, Correct Care Solutions (CCS), Dr. Krystal Lewis, Dr. Arfica, and Jenny Jaynes for violations of their First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights, in addition to their rights under Tenn. Code Ann. Section 29-20-201(b)(2). They also name as defendants (in both their official and individual capacities) an additional 54 employees of DCSO and CCS. However, aside from generally requesting relief for all deserving inmates in DCSO custody, the Complaint requests specific relief for, and is almost exclusively focused on, harms suffered by Plaintiff Harris. Those harms include alleged dental injuries, injuries to his ribs and back, and mental injuries related to "P.T.S.D. and Bipolar disorder." Harris is the only plaintiff who submitted an application to proceed in forma pauperis (IFP) with the Complaint. On April 18, 2022, Harris filed a motion to amend the Complaint and a proposed amended complaint that lists himself as the first plaintiff, and "all pretrial prisoners injured by Nashville, TN Government" as the second plaintiff. The proposed amended complaint utilizes a running list of names from the original Complaint (and earlier filings) to name additional defendants, and it purports to institute a class action challenging (1) the alleged deliberate delay in providing urgently needed dental care; (2) the poisonous nature of the drink mix, syrup, and food served to inmates; and (3) the denial of adequate library time to access legal materials or other materials to "educate inmates' minds." Two copies of the final page of the proposed amended complaint are provided. The first, signed by Harris and Lytle, requests that Harris be awarded injunctive and monetary relief while the other members of the proposed class have their medical needs and law needs met. The second, signed only by Harris and obviously repurposed from a 2019 lawsuit, seeks monetary relief for Harris and monetary and other relief for all deserving DCSO inmates from October 28, 2014 "into the future." Judge Trauger holds that although "a party may amend its pleading once as a matter of course" within 21 days of service, Fed. R. Civ. P. 15(a)(1)(A), such amendment may not be accomplished by one pro se plaintiff on behalf of any other. Pro se prisoners may not represent other prisoners, whether they be individual co-plaintiffs, or members of a purported class of plaintiffs. In addition to being unsigned, the motion to amend incorporates a proposed amended complaint that seeks class relief and concludes with one pro se prisoner signing for another. Accordingly, the motion to amend is denied. Likewise, the related motions "for certification of the class of plaintiffs" and to recognize the amended, class complaint and appoint class counsel are also denied. Finally, Plaintiff Harris' motions to order the Defendants to provide the injunctive relief sought in the Complaint and proposed amendment are denied as premature. II. The Plaintiffs & the Filing Fee Next, the number of Plaintiffs and the matter of the filing fee must be resolved. Harris has filed two IFP applications. His first IFP application is clearly an old application that he modified for use in the current lawsuit. It is written in both ink and pencil, bears three different dates spanning more than two years, and was notarized in January 2020. Because it does not reliably reflect his current financial condition, Judge Trauger denies Harris' first IFP application. Plaintiff Harris' second IFP application, however, includes a DCSO official's March 2022 certification that Harris had a zero-dollar trust account balance. This certification is consistent with a transaction history (from January 2021 to January 2022) attached to Harris' first application and demonstrates that he lacks sufficient financial resources to pay the full filing fee in advance. Judge Trauger therefore grants Harris permission to proceed IFP. Plaintiff Lacory Lytle also appears to have filed an IFP application, though only the affidavit of poverty is valid; the attached trust account certification is for the account belonging to Harris. Without corroboration of Lytle's account balance and 6-month account history, as required by 28 U.S.C. Section 1915(a)(2), his IFP application is deficient and therefore denied. Plaintiff Bobby Mosley has not filed an IFP application or made any filing fee payment in support of the Complaint, though he has attempted to file a separate pleading under Federal Rule of Civil Procedure 8(a)(2) alleging defects in the prosecution of his pending criminal charges. Judge Trauger notes that Plaintiff Mosley is subject to the "three-strikes" rule, which prohibits the filing of any new civil lawsuit in federal court without prepayment of the full $402 filing fee unless he is under imminent danger of serious physical injury. His joinder as a co-plaintiff in the case is therefore improper. In view of these deficiencies and, in any event, because the Complaint does not appear to contain allegations personal to Lytle or Mosley but focuses almost exclusively on Harris, Judge Trauger in her discretion declines to allow the case to proceed as a multi-plaintiff case. Accordingly, Lytle and Mosley are dismissed as plaintiffs to the action, without prejudice to their ability to file separate cases related to the conditions alleged in the Complaint. The Clerk is directed to return Mosley's pleading to him. As the sole remaining plaintiff to whom pauper status has been granted, Harris is responsible for paying a $350 filing fee pursuant to 28 U.S.C. Sections 1915(b) and 1914(a), which the Court assesses. The warden of the facility in which the Plaintiff is currently housed, as custodian of his trust account, is directed to submit to the Clerk of Court, as an initial payment, the greater of: (a) 20% of the average monthly deposits to the Plaintiff's credit at the jail; or (b) 20% of the average monthly balance to the Plaintiff's credit for the six-month period immediately preceding the filing of the complaint. Thereafter, the custodian will submit 20% of the Plaintiff's preceding monthly income (or income credited to the Plaintiff for the preceding month), but only when the balance in his account exceeds $10. Payments will continue until the $350 filing fee has been paid in full to the Clerk of Court. The Clerk of Court must send a copy of the Order to the warden of the facility where the Plaintiff is currently housed to ensure compliance with that portion of 28 U.S.C. Section 1915 pertaining to the payment of the filing fee. If the Plaintiff is transferred from his present place of confinement, the custodian must ensure that a copy of the Order follows the Plaintiff to his new place of confinement, for continued compliance with the Order. All payments made pursuant to the Order must be submitted to the Clerk of Court for the U.S. District Court for the Middle District of Tennessee, 719 Church Street, Nashville, TN 37203. III. Instructions to Plaintiff Harris In view of the deficiencies in his filings to date, discussed, Plaintiff Harris must file a proper amended complaint if he is to proceed with the lawsuit. The amended complaint must not include photocopies of pages from previous filings or any class allegations/claims, and must not assert unrelated claims against unrelated parties. Under Rules 18 and 20 of the Federal Rules of Civil Procedure, Plaintiff Harris can assert any claims he has against a single defendant, or he can assert all the claims he has against multiple defendants that arise from the same incident or series of related incidents. If Plaintiff Harris wishes to pursue other claims or defendants outside that limited scope of his amended complaint, he is free to do so by filing separate lawsuits. The Clerk of Court is directed to provide Plaintiff Harris with a blank Section 1983 complaint form for his use in drafting his amended complaint. The amended complaint must be typed or neatly written (in ink, if possible) and must include the matter number for the case, 3:22-cv-00221. The amended complaint must be received in the Court within 30 days of the entry of the Order. Plaintiff Harris is cautioned that, should he fail to comply with the Order (or seek an extension of time within which to do so) within the time specified, or should he fail to keep the court apprised of his current address, the action may be dismissed for want of prosecution and failure to comply with a court order. IV. Conclusion In sum, Judge Trauger grants Plaintiff Harris permission to proceed IFP and orders him to use the form provided by the Clerk of Court to file an amended complaint that complies with the Order within 30 days. All other pending motions and applications are denied. Plaintiffs Lytle and Mosley are dismissed from the action, and the Clerk will return Mosley's recent filing to him. A full-text copy of the Court's May 24, 2022 Memorandum & Order is available at https://tinyurl.com/mtx6rcac from Leagle.com. NASSAU CANDY: Jimenez Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Nassau Candy Distributors, Inc. The case is styled as Vanessa Jimenez, individually, and on behalf of all others similarly situated v. Nassau Candy Distributors, Inc., Case No. 1:22-cv-04373 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Nassau Candy -- https://www.nassaucandy.com/ -- is a leading candy manufacturer and food distributor, specializing in handmade confections and gourmet food, selling wholesale B2B.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com NEABAR INC: Misclassifies Dancers, McCoy Suit Claims ---------------------------------------------------- MAIYA MCCOY, on behalf of herself and all others similarly situated, Plaintiff v. NEABAR, INC., d/b/a GATSBY'S PUB, KEVIN NEADING, BARRY BARBERA, and BARRY BARBERA, JR., Defendants, Case No. 5:22-cv-00884 (N.D. Ohio, May 26, 2022) brings this complaint as a collective action alleging the Defendant of violations of the Fair Labor Standards Act. The Plaintiff has worked for the Defendants as a dancer from about April 2021 to about May 2022. The Plaintiff asserts that the Defendants misclassified her and other similarly situated dancers as independent contractors. Throughout their employment with the Defendants, the Defendants never paid them any wages whatsoever. On multiple occasions, they also worked more than 40 hours in a workweek. But the Defendants never paid them overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek, the Plaintiff says. On behalf of herself and all other similarly situated dancers, the Plaintiff seeks for their unpaid minimum and overtime wages, liquidated damages, post-judgment interest, attorney's fees and costs, and all other relief to which they are entitled. NEABAR, INC., d/b/a GATSBY'S PUB, is an adult entertainment club in Ohio. The Individual Defendants are co-owners of the Corporate Defendant. [BN] The Plaintiff is represented by: Stephen I. Voudris, Esq. Christopher M. Sams, Esq. VOUDRIS LAW LLC 8401 Chagrin Road, Suite 8 Chagrin Falls, OH 44023 Tel: (440) 543-0670 Fax: (440) 543-0721 E-mail: svoudris@voudrislaw.com csams@voudrislaw.com NEW GENERATION: Rodriguez Sues Over Failure to Pay Overtime Wages ----------------------------------------------------------------- PABLO RAMON RODRIGUEZ, on behalf of himself and all other persons similarly situated, Plaintiff v. NEW GENERATION HARDWARE STORE CORP. d/b/a NEW GENERATION HARDWARE STORE, and KEVIN REYES, Defendants, Case No. 1:22-cv-04422 (S.D.N.Y., May 28, 2022) brings this collective action complaint alleging the Defendants of willful violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was employed by the Defendants as a store clerk from 2013 until approximately July 2021. The Plaintiff claims that although he worked more than 40 hours per week throughout his employment with the Defendants, the Defendants denied him of overtime compensation at the legally mandated rate of one and one-half times his regular rate of pay for all hours worked in excess of 40 per workweek. The Plaintiff also asserts these claims: -- The Defendants failed to pay him spread of hours pay even though his daily shifts exceeded ten hours in length from start to finish; -- The Defendants failed to provide him with properly compliant paystubs; and -- The Defendants failed to provide him with a wage acknowledgement notice upon his hiring or at any time thereafter. The Plaintiff seeks all unpaid compensation, liquidated damages, statutory damages, back pay, punitive damages, pre- and post-judgment interest, litigation costs and expenses together with reasonable attorneys' and expert fees, and other relief as the Court deems just and proper. New Generation Hardware Store Corp. d/b/a New Generation Hardware Store sells hardware products. Kevin Reyes is the owner of the Corporate Defendant. [BN] The Plaintiff is represented by: Michael Samuel, Esq. THE SAMUEL LAW FIRM 1441 Broadway – Suite 6085 New York, NY 10018 Tel: (212) 563-9884 NEW JERSEY: Bid for Prelim. Injunction in Carmona v. NJDEP Denied ----------------------------------------------------------------- In the case, JENNICA CARMONA, et al., Plaintiffs v. NEW JERSEY DEPARTMENT OF EDUCATION, et al., Defendants, Civil Action No. 21-18746 (D.N.J.), Judge John Michael Vazquez of the U.S. District Court for the District of New Jersey denies the Plaintiffs' motion for a preliminary injunction. I. Introduction Through the case, parents of special needs children in New Jersey seek to ensure that their children continue to receive in-person educational services during the ongoing COVID-19 pandemic. The Plaintiffs, parents of fifteen special needs children, initiated the putative class action by filing a Complaint against the New Jersey Department of Education ("NJDEP") and multiple public-school districts throughout New Jersey (the "School District Defendants"), and a motion for a preliminary injunction. In his Opinion, Judge Vazquez addresses the motion for a preliminary injunction. Some of the School District Defendants filed letters opposing the Plaintiffs' motion that incorporated arguments from their pending motions to dismiss. The NJDEP filed a brief in opposition, to which the Plaintiffs replied. Judge Vazquez reviewed all submissions made in support and in opposition to the motion and considered the motion without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). II. Background The Plaintiffs brought suit individually and on-behalf of fifteen school-aged children in New Jersey. The children are pupils in different school districts throughout the state. All have special needs and, all but one, B.A., had an Individualized Education Plan ("IEP") for the 2019-2020 and/or the 2020-2021 school years. An IEP is the "primary mechanism" to ensure that every disabled child receives a free appropriate public education ("FAPE"), as required by the Individuals with Disabilities Education Act ("IDEA"). An IEP is a written document that sets forth the special education and related services that must be provided to the child, to enable a FAPE. Through their IEPs, all the named children in this matter, except B.A., received some type of specialized support or modifications at school during the 2019-2020 and 2020-2021 school years. On March 16, 2020, Governor Phil Murphy signed an Executive Order that indefinitely closed all public and private preschools, as well as elementary and secondary schools in New Jersey because of the COVID-19 pandemic. Due to the Executive Order, every school in the state that had not already stopped in-person instruction, including some of the School District Defendants in the matter, ceased in-person learning and began providing students with virtual instruction. The Plaintiffs received virtual instruction and services for the remainder of the 2019-2020 school year. Virtual instruction continued until various points in the 2020-2021 school year, when the School District Defendants began providing hybrid learning or in-person instruction. The Plaintiffs allege that the unilateral change from in-person to virtual instruction and services altered their IEPs so that they did not receive a FAPE through virtual instruction. The Plaintiffs filed their Complaint and the instant motion on Oct. 18, 2021, asserting claims under the IDEA, Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, Section 1983, the New Jersey Civil Rights Act, the New Jersey Law Against Discrimination, and the Racketeer Influenced and Corrupt Organizations Act ("RICO"). On Oct. 19, 2021, the Court entered a text order explaining that after the Plaintiffs informed the Court that Defendants had been served, the Court would set a briefing schedule on the Plaintiffs' motion. On Dec. 10, 2021, the Plaintiffs informed the Court that they served all the Defendants except two. The Court scheduled a telephone conference with the parties on Dec. 13, 2021. After the conference, the parties agreed to a briefing schedule for the preliminary injunction motion and three pending motions to dismiss filed by some Defendants. On Jan. 3, 2022, the Plaintiffs filed a motion for a temporary restraining order and preliminary injunction after numerous school districts throughout the state announced that they would switch from in-person to remote instruction for two or more weeks after winter break.The Court held a telephone conference with the parties on Jan. 4, 2022, and the following day, the Plaintiffs filed a letter clarifying which schools switched to remote instruction or closed. The Court held another telephone conference with the parties on Jan. 11, 2022, to address the Plaintiffs' request for temporary restraints, and denied the motion. In addition, various Defendants filed five more motions to dismiss the Complaint, and four Defendants filed a motion for sanctions. Although there are multiple motions pending in the matter, Judge Vazquez focuses his analysis on the Plaintiffs' initial motion for a preliminary injunction. III. Analysis The Plaintiffs seek injunctive relief through their civil RICO and IDEA claims. Among other things, they seek an injunction declaring that their (and other class members') "status quo pendency placement is in-person instruction and services"; stating that the Defendants violated the IDEA when they provided them with remote instruction and services; and appointing a special monitor to oversee and implement evaluations to determine class members' regression from remote learning and to implement new IEPs. The Defendants maintain that the Plaintiffs are not entitled to a preliminary injunction because, among other things, they fail to establish a reasonable probability of success on the merits for their RICO and IDEA claims. With respect to the RICO claim, the Plaintiffs allege that the Defendants are involved in a scheme to deprive them of IDEA Part B funds. The NJDOE asserts that there is no private right of action for equitable relief under RICO. Judge Vazquez opines that the Plaintiffs fail to establish that they can pursue their RICO claim for the relief sought. The Plaintiffs provide no explanation as to why the Court should follow the Second Circuit instead of the weight of authority in this district. The Plaintiffs' motion, therefore, is denied as to their RICO claim because they do not demonstrate a reasonable probability of success on the merits. Turning to their IDEA claim, the Plaintiffs seek an automatic injunction under the stay put provision of IDEA. They maintain that when the Defendants moved to virtual education in March 2020, it amounted to a unilateral change in educational placement that implicated the stay put provision. The Defendants disagree. Judge Vazquez holds that the Plaintiffs fail to establish that their educational placements changed when the School District Defendants moved from in-person to virtual instruction for all students. The stay put provision, therefore, does not apply to any the Plaintiff, and the Plaintiffs are not entitled to a class-wide injunction under the IDEA. IV. Conclusion Therefore, for the reasons he set forth and for good cause shown, Judge Vazquez denies the Plaintiffs' motion for a preliminary injunction. A full-text copy of the Court's May 24, 2022 Opinion & Order is available at https://tinyurl.com/2jynz7hu from Leagle.com. NEW JERSEY: Bid to Certify Class in Pasquerello v. EMCFW Denied --------------------------------------------------------------- In the case, JENNIFER PASQUERELLO & MICHELLE ANGELINA, Plaintiffs v. PHIL MURPHY, et al., Defendants, Civil Action No. 21-18806 (ZNQ) (DEA) (D.N.J.), Judge Zahid N. Quraishi of the U.S. District Court for the District New Jersey issues an Opinion: (1) denying the Plaintiffs' motion to remand; (2) denying the Plaintiffs' motion for joinder of claims, class certification and appointment of counsel; (3) denying the Plaintiffs' motions for a preliminary injunction; (4) denying Defendant Demitrius Minor's motion to dismiss as moot; and (5) granting in part and denying in part Defendants Marcus O. Hicks, Al Kandell, Victoria Kuhn, Patricia McGill, and Phil Murphy's (the "State Defendants") motion to dismiss. I. Background Plaintiffs Jennifer Pasquerello and Michelle Angelina, inmates confined at Edna Mahan Correctional Facility for Women ("EMCFW"), are proceeding pro se with a civil rights complaint pursuant to 42 U.S.C. Section 1983, the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. Sections 2000cc to 2000cc-5, and state law. The case arises from the New Jersey Department of Corrections' ("NJDOC") adoption of an internal management procedure titled "Transgender, Intersex and Non-Binary Inmates" (the "Policy") in 2019. Pursuant to the Policy, the NJDOC houses certain transgender inmates who identify as women but who have not undergone gender-confirmation surgery (the "Pre-operative Transgender Inmates") at EMCFW. The Plaintiffs allege that the State Defendants designed and implemented the Policy. The Plaintiffs are two female inmates currently incarcerated at EMCFW. According to them, the Policy and the arrival of Pre-operative Transgender Inmates at EMCFW have caused numerous issues within the facility. For instance, the Plaintiffs allege that the Pre-operative Transgender Inmates committed acts of violence, harassment, and threats upon other inmates. They contend that they suffered emotional anguish, headaches, hypertension, and insomnia as a result. The Plaintiffs further allege that the presence of the Pre-operative Transgender Inmates infringes on their exercise of religion and privacy. Finally, they complain that "female inmates" at EMCFW receive unequal treatment compared to the Pre-operative Transgender Inmates. The Plaintiffs initiated the action on June 25, 2021, in the Superior Court of New Jersey, Law Division - Hunterdon County. They then filed the Amended Complaint on Aug. 5, 2021. The Amended Complaint raises nine claims alleging that the Policy and the presence of the Pre-operative Transgender Inmates violate their Eighth Amendment rights to physical safety; their Fourteenth Amendment rights to bodily privacy, equal protection, and substantive due process; their right to be free from religious discrimination under RLUIPA; and their rights under state law. On Oct. 15, 2021, the State Defendants filed a notice of removal with the Court. In response, the Plaintiffs filed a motion to remand the matter back to state court on Nov. 15, 2021. On Dec. 6, 2021, the Plaintiffs filed a motion for joinder of claims, class certification, and appointment of counsel. The same day, the Plaintiffs also filed a motion for a preliminary injunction. On Dec. 13, 2021, Defendant Minor filed a motion to dismiss. The State Defendants also moved to dismiss the Amended Complaint on Dec. 17, 2021. The State Defendants also filed oppositions to the Plaintiffs' motions on Dec. 20, 2021. On Jan. 10 and 13, 2022, the Plaintiffs filed oppositions to the Defendants' motions to dismiss. The State Defendants replied to the Plaintiffs' opposition to the motion to dismiss on Jan. 20, 2022. Finally, on April 29, 2022, while the Plaintiffs' first motion for a preliminary injunction remained pending, the Plaintiffs filed a second motion for a preliminary injunction, which the State Defendants opposed on May 23. Accordingly, the matter is ripe for determination. II. Discussion A. Motion to Remand Judge Quraishi first addresses the Plaintiffs' motion to remand the action to state court. The Plaintiffs' sole argument in support of their motion is that the Defendants failed to file a timely notice of removal. The Plaintiffs complain that they did not learn of the notice of removal until they called the Civil Division Manager Office on Oct. 24, 2021. The State Defendants sent written notice to the Plaintiffs via the United States Postal Service on Oct. 19, 2021. Although it is unclear when or even if the Plaintiffs received that notice, Judge Quraishi finds that it is sufficient to satisfy Section 1446(d) because the State Defendants made a good faith attempt at notice and the Plaintiffs were not prejudiced as the Civil Division Manager Office notified the Plaintiffs of the removal on Oct. 24, 2021. Accordingly, he denies the Plaintiffs' motion to remand. B. Motion for Appointment of Counsel Judge Quraishi next considers the Plaintiffs' motion to appoint counsel to represent them. The Plaintiffs' only argument in support is that the Court must assign counsel pursuant to Federal Rule of Civil Procedure 23(g)(1). That Rule provides that "a court that certifies a class must appoint class counsel." The Court, however, has not certified a class, and Judge Quraishi finds that the matter does not warrant class certification. Thus, Rule 23(g)(1) is not applicable. Moreover, although the Court has broad discretion to appoint counsel under 28 U.S.C. Section 1915(e)(1), Judge Quraishi declines to exercise that discretion. The Plaintiffs' federal claims lack arguable merit, and Judge Quraishi declines to exercise supplemental jurisdiction over the Plaintiffs' state law claims, Accordingly, he denies the Plaintiffs' motion to appoint counsel. C. Motion for Class Certification The Plaintiffs also move the Court for class certification. They propose that the class consist of "all the female inmates at EMCFW." Judge Quraishi opines that the Plaintiffs fail to demonstrate that they would fairly and adequately protect the interest of the class, "It is well settled that pro se inmates are not permitted to represent a class of litigants." Moreover, the Plaintiffs fail to demonstrate that their claims would be typical of the claims of the class. For example, while the Plaintiffs do not challenge the housing of post-operative transgender inmates at EMCFW, they fail to demonstrate that other inmates' claims would be so limited. Accordingly, Judge Quraishi denies the Plaintiffs' motion for class certification. D. State Defendants' Motion to Dismiss Judge Quraishi now turns to the State Defendants' motion to dismiss. The State Defendants argue that dismissal is appropriate because they are entitled to qualified immunity and because the Plaintiffs fail to state a claim against them. 1. Qualified Immunity Judge Quraishi's own review of the caselaw reveals no factually similar precedent or a consensus of persuasive authority that would have put reasonable policymakers on notice that their conduct is constitutionally prohibited. Moreover, the facts that the Plaintiffs allege do not make out a violation of a federal statutory or constitutional right. The State Defendants are therefore entitled to qualified immunity on the Plaintiffs' federal claims for damages, and Judge Quraishi dismisses the Plaintiffs' federal claims with prejudice to the extent they seek such relief. 2. Failure to State a Claim The State Defendants' entitlement to qualified immunity does not end the inquiry, however, because the Plaintiffs also seek declaratory and injunctive relief. Therefore, Judge Quraishi analyzes the State Defendants' argument that the Plaintiffs fail to state a claim against them. He finds that the Amended Complaint is completely devoid of any allegations that the State Defendants personally participated in violating Plaintiffs' rights or directed others to violate them. The Amended Complaint is also devoid of allegations that the State Defendants had knowledge of and acquiesced to their subordinates' violations of the Plaintiffs' rights. Thus, the Plaintiffs' fail to demonstrate that the State Defendants were personally involved in violating theu federal rights. Accordingly, the Plaintiffs fail to state a federal claim against the State Defendants, and Judge Quraishi dismisses those claims without prejudice. 3. State Law Claims The Plaintiffs also allege various state law claims against the State Defendants. However, as the Court dismisses all claims for which it has original jurisdiction, Judge Quraishi declines to exercise supplemental jurisdiction over the Plaintiffs' state law claims. He dismisses all of the Plaintiffs' claims for which it has original jurisdiction for failure to state a claim. Pursuant to 28 U.S.C. Section 1367(c)(3), Judge Quraishi declines to exercise supplemental jurisdiction over the Plaintiffs' state law claims and remands those claims to state court. Accordingly, he denies the Defendants' remaining arguments seeking dismissal of the Plaintiffs' state law claims as moot. III. Conclusion For these reasons, Judge Quraishi: (1) denies the Plaintiffs' motions; (2) grants in part the State Defendants' motion to dismiss as to the Plaintiffs' federal claims; (3) sua sponte dismisses the Plaintiffs' federal claims against Defendants Minor and Martinez; (4) declines to exercise supplemental jurisdiction over the Plaintiffs' state law claims; and (5) denies the remainder of the State Defendants' motion to dismiss and Defendant Minor's motion to dismiss as moot. An appropriate order follows. A full-text copy of the Court's May 25, 2022 Opinion is available at https://tinyurl.com/3zz48fb7 from Leagle.com. NISSAN NORTH AMERICA: Martinez Sues Over Failure to Disclose Defect ------------------------------------------------------------------- Minerva Martinez, Sandra Scott, Carl Graham, Anne Parys, David Ortiz, Sean Chambers and Tiffany James, individually, and on behalf of a class of similarly situated individuals v. NISSAN NORTH AMERICA INC., a Delaware corporation, Case No. 3:22-cv-00354 (M.D. Tenn., May 16, 2022), is brought concerning a failure to disclose material facts and a safety concern to consumers as a result of the Defendant who manufactured, marketed, distributed, and sold the Class Vehicles without disclosing that the Class Vehicle's Xtronic Continuously Variable Transmission ("CVT") is defective. Specifically, Plaintiffs allege that the CVT contains design and/or manufacturing defects. The CVT is defective as detailed herein (collectively, the "CVT Defect" or "Defect"). Discovery will show the Class Vehicles are designed and/or manufactured with an inadequate cooling system. The CVT fluid temperature in Class Vehicles is controlled by a small cooler, rather than a radiator. This cooler is too small and/or manufactured so poorly that it fails to properly regulate the temperature in the fluid which lubricates all the components of the CVT, including the belts, pulleys, and valves. This design and/or manufacturing defect makes the transmission unreasonably sensitive to heat. The CVT in every Class Vehicle is thus prone to overheating, which activates a fluid temperature protection mode and reduces transmission performance, among other symptoms. As a result, drivers experience conditions ranging from shuddering, jerking, failure to accelerate, all the way to catastrophic transmission failure. The CVT Defect causes sudden, unexpected shaking and violent jerking (commonly referred to as "juddering" or "shuddering") when drivers attempt to accelerate their vehicles; it causes the vehicle to lag or delay when the driver tries to accelerate, causing an unsafe and unpredictable acceleration; it exhibits a hard deceleration or "clunk" when drivers either slow down or accelerate at low speeds; it causes complete transmission failure in the middle of roadways; and it suffers catastrophic failure, necessitating replacement. The CVT Defect is inherent in each Class Vehicle and was present at the time of sale. The Plaintiffs allege, that since 2013, if not earlier, Nissan has been aware that the CVT installed in the Class Vehicles would require frequent replacement, including replacements just outside of warranty, that the replacement transmissions installed would be equally defective as the originals, and that the CVT would cause the symptoms of the CVT Defect (juddering, lag when attempting to accelerate, hard deceleration, complete failure and other symptoms), and that the Class Vehicles' CVT would require frequent repair, yet Nissan continued to install the defective CVT. Moreover, Nissan not only refused to disclose the problem to owners and lessees, but it also actively concealed, and continues to conceal, its knowledge concerning the CVT Defect. As a result of Nissan's failure to disclose material facts regarding the CVT Defect to its customers, the Class has incurred significant and unexpected repair costs. Nissan's omission of the CVT's marked tendency to fail -- whether within warranty or just outside of warranty -- at the time of purchase is material because no reasonable purchaser or lessee expects to spend thousands of dollars to repair or replace an essential vehicle component (such as a transmission, which must be replaced and cannot be repaired) in the early years of owning their vehicles. Nissan's failure to disclose the alleged defect has caused Plaintiffs and putative Class members to lose use of the Class Vehicles and/or incur costly repairs that have conferred an unjust substantial benefit upon Nissan. Had Nissan disclosed the CVT Defect to Plaintiffs and Class members, they would not have purchased the Class Vehicles, would have paid less for them, and/or would have required Nissan to replace or pay for the replacement of the defective CVT with a non-defective version before their warranty periods expired, says the complaint. The Plaintiffs purchased or leased any model year 2017-2018 Nissan Altima equipped with a Continuously Variable Transmission, and/or model year 2018-2019 Nissan Sentra, Versa, and Versa Note equipped with a Continuously Variable Transmission (Altima Class Vehicles and Sentra Class Vehicles, together, "Class Vehicles" or "Vehicles"). Nissan North America, Inc. designs and manufactures motor vehicles, parts, and other products for sale throughout the United States, and the world.[BN] The Plaintiffs are represented by: Gregory F. Coleman, Esq MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 800 South Gay Street Suite 1100 Knoxville, TN 37929 Email: gcoleman@milberg.com - and - Tarek Zohdy, Esq Cody R. Padgett, Esq Laura E. Goolsby, Esq CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Phone: (310) 556-4811 Facsimile: (310) 943-0396 Email: Tarek.Zohdy@capstonelawyers.com Cody.Padgett@capstonelawyers.com Laura.Goolsby@capstonelawyers.com - and - Norberto J. Cisneros, Esq. Barbara McDonald, Esq MADDOX & CISNEROS, LLP 3230 S. Buffalo Drive, Suite 108 Las Vegas, NV 89117 Phone: (702) 366-1900 Facsimile: (702) 366-1999 - and - Melissa S. Weiner, Esq PEARSON, SIMON & WARSHAW, LLP 800 LaSalle Avenue, Suite 2150 Minneapolis, MN 55402 Phone: (612) 389-0600 Facsimile: (612) 389-0610 Email: mweiner@pswlaw.com - and - James C. Shah, Esq Natalie Finkelman Bennett, Esq MILLER SHAH LLP 1845 Walnut Street, Suite 806 Philadelphia, PA 19103 Phone: (866) 540-5505 Facsimile: (866) 300-7367 Email: jcshah@millershah.com nfinkelman@millershah.com - and - Lawrence Deutsch, Esq Russell D. Paul, Esq Amey J. Park, Esq Abigail J. Gertner, Esq BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Phone: (215) 875-3000 Fax: (215) 875-4604 Email: ldeutsch@bm.net rpaul@bm.net apark@bm.net agertner@bm.net NOBLE ENERGY: Boulter Appeals Breach of Contract Suit Dismissal --------------------------------------------------------------- Plaintiffs Mike Boulter, et al., filed an appeal from a court ruling entered in the lawsuit entitled MIKE BOULTER, BOULTER, LLC, RALPH NIX PRODUCE, INC., and BARCLAY FARMS, LLC, on behalf of themselves and classes of similarly situated persons, Plaintiffs v. NOBLE ENERGY, INC., and KERR-McGEE OIL & GAS ONSHORE, LP, Defendants, Civil Action No. 21-cv-03500-RM-SKC, in the United States District Court for the District of Colorado-Denver. The case arises from the Defendants' practice of underpaying royalties owed to the Plaintiffs for over six years. The Defendants are allegedly deducting transportation charges and other costs in their calculation and payment of royalties to the Plaintiffs on oil sales, which are not permitted under the Noble Class oil royalty provision and the Kerr-McGee Subclass I oil royalty provision. As a result of the Defendants' breach of their contractual obligations, the Plaintiffs and Class members have sustained substantial damages, the suit says. On May 17, 2021, Plaintiffs refiled their Class Action Complaint against Noble and Kerr-McGee in the United States District Court for the District of Colorado which contained allegations substantially identical to the claims alleged in the class action complaint in D. Colo. Case No. 1:21-cv-01346-RM-KLM. On June 30, 2021, both Defendants, Noble and Kerr-McGee filed separate motions to dismiss the May 17, 2021 complaint citing lack of the Court's subject matter jurisdiction. On April 27, 2022, Judge Raymond P. Moore entered an order granting Defendants' motion to dismiss and dismissed the case without prejudice. The Plaintiffs now seek a review of Judge Moore's order. The appellate case is captioned as Boulter, et al. v. Noble Energy Inc., et al., Case No. 22-1170, in the United States Court of Appeals for the Tenth Circuit, filed on May 26, 2022. The briefing schedule in the Appellate Case states that: -- Docketing statement, transcript order form, and notice of appearance are due on June 9, 2022 for Barclay Farms, LLC, Mike Boulter, Boulter, LLC and Ralph Nix Produce, Inc.; and -- Notice of appearance is due on June 9, 2022 for Oil & Gas Onshore, LP, and Noble Energy Inc.[BN] Plaintiffs-Appellants MIKE BOULTER, BOULTER, LLC, RALPH NIX PRODUCE, INC., and BARCLAY FARMS, LLC, on behalf of themselves and classes of similarly situated persons, are represented by: George Barton, Esq. Stacy Ann Burrows, Esq. BARTON AND BURROWS 5201 Johnson Drive, Suite 110 Mission, KS 66205 Telephone: (913) 563-6250 E-mail: george@bartonburrows.com stacy@bartonburrows.com Defendants-Appellees NOBLE ENERGY INC. and KERR-MCGEE OIL & GAS ONSHORE, LP are represented by: Kyle M. Holter, Esq. Shannon Wells Stevenson, Esq. DAVIS GRAHAM & STUBBS 1550 Seventeenth Street, Suite 500 Denver, CO 80202 Telephone: (303) 892-7533 - and - Spencer Allen, Esq. Carlos Romo, Esq. Ezekiel J. Williams, Esq. WILLIAMS WEESE PEPPLE & FERGUSON 1801 California Street, Suite 3400 Denver, CO 80202 Telephone: (303) 861-2828 - and - Anthony N. Kaim, Esq. Shannon Nicole Smith, Esq. GIBBS & BRUNS 1100 Louisiana, Suite 5300 Houston, TX 77002 Telephone: (713) 650-8805 NOCO COMPANY: Jimenez Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against The Noco Company. The case is styled as Vanessa Jimenez, individually, and on behalf of all others similarly situated v. The Noco Company, Case No. 1:22-cv-04377 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The NOCO Company -- http://no.co/-- is an American, privately held, multinational corporation that designs, manufactures, and markets consumer electronics, automotive chemicals, plastics, and various electrical components.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com NORTH AMERICAN: Court Denies Bennett's Bid for Class Certification ------------------------------------------------------------------ In the case, JUNE BENNETT, on behalf of herself and all others similarly situated, and GERALD McGHEE, Plaintiffs v. NORTH AMERICAN BANCARD, LLC, Defendant, Case No. 17-cv-00586-AJB-KSC (S.D. Cal.), Judge Anthony J. Battaglia of the U.S. District Court for the Southern District of California denies Bennett's motion for class certification. I. Background The action arises out of an alleged "bait and switch" scheme by the Defendant. The theory of Bennett's case is that the Defendant promised its customers a specific pay-as-you-go service but failed to deliver by eventually assessing fees. The Defendant offers mobile payment solutions that provide nationwide customers, including individuals, small business owners, and merchants, "convenient, low cost point of sale credit card payment processing services, including credit card readers that can be connected to mobile devices." Between 2011 and May 2018, the Defendant offered one "pay-as-you-go" program under two brand names: "PayAnywhere" and "PhoneSwipe" (collectively, the "Services"). These two brands were ultimately combined under the "PayAnywhere" name in May 2018. Both Services were originally sold as a purely no out-of-pocket or pay-as-you-go offering. To obtain the credit card processing services, merchants were required to apply on either payanywhere.com or phoneswipe.com. This application required prospective merchants, such as Bennett, to agree to either PhoneSwipe or PayAnywhere's Terms and Conditions of Merchant Service Agreement ("the MSA"). In May 2011, Bennett signed up for the PhoneSwipe service and a credit card reader for a small business she and her husband owned and operated called "Santa Rocks." Before applying for the Service, Bennett understood there would be no recurring or setup charges, and that she would only be charged a fee for each transaction processed using the Service. Toward the end of 2015, the Defendant decided to add a new monthly non-use or "Inactivity Fee" to PayAnywhere and PhoneSwipe. It was and still is a monthly $3.99 fee automatically debited from the bank accounts of "inactive" merchants, i.e., those who had not processed a transaction in twelve months. Prior to rolling out the new Inactivity Fee, Defendant notified existing customers by email about the new fee. The email blast also provided a "live" link the merchants could click if they chose to cancel the service. The Defendant continued to provide "inactive" merchants with such monthly email notices through January 2018. It also provided information about the Inactivity Fee on its websites. Around February 2017, the Defendant began charging Bennett monthly Inactivity Fees, which she did not notice until mid-2018. Upon noticing the charges, Bennett called the Defendant and cancelled her account. The Defendant refunded the last Inactivity Fee it deducted but has refused to refund any others. Plaintiff Gerald McGhee instituted the lawsuit on March 24, 2017, by filing the class action complaint. McGhee thereafter filed a motion to certify the class in October 2020, which the Court denied without prejudice. On Oct. 1, 2021, McGhee filed the First Amended Complaint ("FAC"), which added Bennett as a named plaintiff. The Plaintiffs argue Defendant falsely promised its hundreds of thousands of PayAnywhere and PhoneSwipe customers a no out-of-pocket cost, "pay-as-you-go" service plan. the Plaintiffs assert claims for (1) fraudulent concealment; (2) intentional misrepresentation; (3) restitution/unjust enrichment; (4) violations of California's Unfair Competition Law ("UCL"); (5) violations of California's False Advertising Law ("FAL"); and (6) conversion. Presently before the Court is Plaintiff Bennett's motion for class certification. On April 14, 2022, the Court heard oral arguments and took the matter under submission. II. Discussion A plaintiff seeking to represent a class must satisfy the threshold requirements of Rule 23(a) as well as the requirements for certification under one of the subsections of Rule 23(b). Rule 23(a) provides a case is appropriate for certification as a class action if: "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." A plaintiff must also establish that one of the subsections of Rule 23(b) is met. In the instant matter, Bennett seeks to certify a class pursuant to Rule 23(b)(3). Under Rule 23(b)(3), Bennett must demonstrate that (1) the questions common to the class predominate over any questions that affect only individual members; and (2) a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. See Fed. R. Civ. P. 23(b)(3). These requirements are commonly known as predominance and superiority. Bennett seeks to certify the following classes: a. All persons in California who became NAB's pay-as-you-go merchants prior to Sept. 1, 2017, and who were debited at least one $3.99 inactivity fee prior to Sept. 1, 2017; and b. All persons in California who became NAB's pay-as-you-go merchants prior to Sept. 1, 2017, who were debited at least one $3.99 inactivity fee after Sept. 1, 2017, and did not agree to a contract authorizing debit of the $3.99 inactivity fee. A. Rule 23(a) Requirements The Defendant first contends Bennett cannot satisfy her burdens under Rule 23(a) because she has not satisfied the typicality requirement. It further asserts Bennett and her counsel are inadequate to represent the class. Judge Battaglia ultimately finds Bennett has met all of the requirements of Rule 23(a). He finds that (i) the proposed class is ascertainable because the proposed class is identifiable based on objective criteria; (ii) Bennett points out "over 500,000 individuals successfully applied for a its pay-as-you-go credit card processing services; (iii) Bennett identifies questions common to the proposed class; (iv) Bennett's claims are typical of those of the putative class; (v) Bennett has demonstrated she is an adequate class representative; and (vi) the case has no bearing on the matter at hand and finds the counsel adequate to serve as the class counsel. B. Rule 23(b)(3) Requirements In addition to meeting the conditions imposed by Rule 23(a), the party seeking class certification must also show that the action is appropriate under Rule 23(b)(1), (2) or (3)." Certification under Rule 23(b)(3) -- the subsection under which Bennett seeks certification -- is appropriate only where the plaintiff establishes that (1) issues common to the class predominate over issues affecting individual class members; and (2) the class action device is superior to other methods available for adjudicating the dispute. Judge Battaglia holds that (i) common questions of fact and law do not predominate as to the standing claim; (ii) predominance is not met for Bennett's UCL claim predicated on the "fraud" prong; (iii) Bennett has not shown she has met the predominance requirement for her UCL claim under the "unfairness" prong; (iv) Bennett has not shown a viability of her unjust enrichment claim; (v) Bennett has not established the predominance requirement of her conversion claim; and (vi) no management difficulties that would preclude the action from being maintained as a class action. On balance, Judge Battaglia finds a class action would be the superior method of adjudication. The alternative to class action would likely result in an abandonment of claims by most class members since the amount of individual recovery is so small. III. Conclusion For the reasons set forth, Judge Battaglia denies Bennett's motion for class certification. A full-text copy of the Court's May 25, 2022 Order is available at https://tinyurl.com/ycxb73mm from Leagle.com. OHIO: Court of Appeals Affirms Judgment Entered in Cowell Suit -------------------------------------------------------------- In the case, STATE OF OHIO, Appellee v. JOSHUA R. COWELL, Appellant, C.A. No. 30052 (Ohio App.), the Court of Appeals of Ohio, Ninth District, Summit County, affirms the judgment of the Summit County Court of Common Pleas denying Mr. Cowell's motion to withdraw his guilty plea. I. Relevant Background Information In 2011, Mr. Cowell pleaded guilty to one count of aggravated burglary, in violation of R.C. 2911.11(A)(1)/(A)(2), a felony of the first degree; one count of felonious assault, in violation of R.C. 2903.11(A)(1)/(A)(2), a felony of the second degree; one count of rape, in violation of R.C. 2907.02(A)(2), a felony of the first degree; and one count of kidnapping, in violation of R.C. 2905.01(A)(2)/(A)(3), a felony of the first degree. As part of the plea agreement, the State dismissed two counts of kidnapping, two sexually violent predator specifications and one sexual motivation specification. Mr. Cowell was sentenced to 25 years imprisonment and did not appeal his conviction. Mr. Cowell subsequently filed two motions to vacate his sentence, which were both denied by the trial court. Mr. Cowell also filed a mandamus action which this Court dismissed. Mr. Cowell then filed a motion for leave to file a motion for a new trial, which the trial court denied. On April 14, 2021, Mr. Cowell filed a motion to withdraw his guilty plea, pursuant to Crim.R. 32.1, which is the subject of this appeal. In his motion, Mr. Cowell argued his guilty plea, entered on April 26, 2011, was not made knowingly, intelligently, and voluntarily because, at the time of the plea, he was unaware of the "side effects of Abilify," which he allegedly took from Sept. 12, 2010, to Oct. 31, 2010. Specifically, due to taking Abilify, Mr. Cowell alleged suffering from blackouts, sleepwalking, memory loss, and compulsive and/or impulsive behavior. Mr. Cowell contended he learned about these side effects after the manufacturer of Abilify, in 2016, added a warning regarding the same. Additionally, Mr. Cowell asserted he is a plaintiff in a federal class-action lawsuit filed against the manufacturer of Abilify, which is currently in the discovery phase. As a result of the Abilify class-action, Mr. Cowell retained Frank A. Fetterolf, M.D., as an expert witness. Dr. Fetterolf's report, which was attached as an exhibit to Mr. Cowell's motion, concluded Abilify caused Mr. Cowell to act compulsively. Mr. Cowell argued evidence of Abilify's side effects would constitute a defense of involuntary intoxication or insanity because he lacked the requisite mens rea to commit these crimes, his actions were not voluntary, and he was suffering from a severe mental defect. Further, Mr. Cowell argued, had he known this information in 2011, he would not have entered a plea of guilty. The State, in opposing Mr. Cowell's motion, argued: (1) undue delay; (2) Ohio does not recognize a diminished capacity defense; (3) Ohio no longer permits a voluntary intoxication defense; and (4) Mr. Cowell would bear the burden of proving the affirmative defense of involuntary intoxication. The trial court denied Mr. Cowell's motion. Mr. Cowell now appeals, raising five assignments of error for the Court of Appeals' review. Because its analysis of Mr. Cowell's assignments of error is identical, the Court of Appeals consolidate them to better facilitate its discussion. II. Discussion Mr. Cowell now appeals, raising the following five assignments of error for the Court of Appeals' review: a. Assignment of Error I: The court erred by failing to recognize Mr. Cowell could not have possibly known the concealed side effects of abilify at the time of the crime. b. Assignment of Error II: The court erred by not applying R.C. 2901.21(a) properly in the case. c. Assignment of Error III: The court erred by not applying R.C. 2901.22(b) properly in the case. d. Assignment of Error IV: Mr. Cowell is not responsible for his criminal conduct as a result of mental disease or defect and did not have the capacity to know the wrongfulness of his conduct or to conform his conduct to the requirements of the law. e. Assignment of Error V: Mr. Cowell's plea of guilty was not made knowingly, intelligently or voluntarily due to him being unaware of the cause of his criminal conduct and acts. Upon review, the Court of Appeals cannot conclude the trial court abused its discretion when it denied Mr. Cowell's post-sentence motion to withdraw his guilty plea. In September 2010, Mr. Cowell was taking prescription medication including Prozac, Adderall, Abilify, and Klonopin, and using cocaine. Mr. Cowell reported being "out of control" a few weeks prior to committing these crimes. Additionally, he knew, at the time he pleaded guilty to the crimes of aggravated burglary, felonious assault, rape, and kidnapping that he was "blacking out" and experiencing memory issues. Importantly, prior to entering a guilty plea in this matter, Mr. Cowell was twice evaluated for both competency and sanity, and was found to be competent to stand trial and sane at the time he committed these offenses. Because Mr. Cowell was previously determined to be sane at the time of the offense, Mr. Cowell cannot now offer expert psychiatric testimony to prove he lacked the requisite mens rea to commit these crimes or that Abilify caused him to involuntarily kidnap, assault, and rape the victims. Further, Mr. Cowell did not provide a credible explanation to the trial court regarding his five-year delay in filing the motion to withdraw his guilty plea in 2021, when warnings regarding the side effects of Abilify became available in 2016. Thus, because Mr. Cowell did not meet his burden of proof regarding the existence of manifest injustice in the plea proceedings, the trial court did not abuse its discretion in denying Mr. Cowell's motion to withdraw his guilty plea. Accordingly, Mr. Cowell's five assignments of error are overruled. III. Conclusion For the foregoing reasons, the Court of Appeals overrules Mr. Cowell's five assignments of error. The judgment of the Summit County Court of Common Pleas is affirmed. There were reasonable grounds for this appeal. The Court of Appeals orders 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 this journal entry will constitute the mandate, pursuant to App.R. 27. Immediately upon the filing thereof, this 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 this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to the Appellant. A full-text copy of the Court's May 25, 2022 Decision is available at https://tinyurl.com/yx67h25d from Leagle.com. Joshua R. Cowell, pro se, Appellant. Sherri Bevan Walsh, Prosecuting Attorney, and Jacquenette S. Corgan, Assistant Prosecuting Attorney, for the Appellee. OSCAR HEALTH: Improperly Reimbursed Physicians, ECURE Suit Claims ----------------------------------------------------------------- ECURE CA LLC, individually and on behalf of all others similarly situated, Plaintiff v. OSCAR HEALTH PLAN OF CALIFORNIA and DOES 1 through 20, inclusive, Defendants, Case No. 22SMCV00780 (Cal. Super., Los Angeles Cty., May 27, 2022) is a class action against the Defendants for quantum meruit and breach of implied contract. According to the complaint, the Defendants allegedly failed and refused to make payments due and owing physicians for medical and surgical care, treatment, and procedures provided to a number of patients. Rather than simply pay physicians the lesser of their billed charges or usual, customary, and reasonable rates, the Defendants instead routinely and deliberately reimbursed physicians' claims at below usual, customary, and reasonable levels, forcing physicians to exhaust time and energy first identifying and then appealing the improperly reimbursed claims, says the suit. ECURE CA LLC is a healthcare services provider based in California. Oscar Health Plan of California is a health insurance company based in California. [BN] The Plaintiff is represented by: Alan Nesbit, Esq. NESBIT LAW GROUP US LLP 8383 Wilshire Boulevard, Ste. 800 Beverly Hills, CA 90211 Telephone: (323) 456-8605 Facsimile: (323) 456-8601 E-mail: anesbit@nesbitlawgroup.com PACIFIC GRAIN: Fails to Pay Proper Wages, Salcedo Suit Alleges -------------------------------------------------------------- SANDRA L. SALCEDO, individually and on behalf of all others similarly situated, Plaintiff v. PACIFIC GRAIN & FOODS, LLC; and DOES 1-10, inclusive, Defendants, Case No. 1:22-at-00386 (E.D. Cal., May 27, 2022) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, and provide accurate wage statements. Plaintiff Salcedo was employed by the Defendants as staff. PACIFIC GRAIN & FOODS, LLC supplies food products. The Company provides beans, dried fruits, grains, nuts, and spices, as well as offers packaging, blending, milling, and roasting services. Pacific Grain & Foods serves food industries and public worldwide. [BN] The Plaintiff is represented by: Craig J. Ackermann, Esq. ACKERMANN & TILAJEF, P.C. 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 277-0614 Facsimile: (310) 277-0635 Email: cja@ackermanntilajef.com PATREON INC: Discloses Consumers' Personal Info, Stark Suit Says ---------------------------------------------------------------- BRAYDEN STARK; JUDD OOSTYEN; KEVIN BLACK; and MARYANN OWENS, individually and on behalf of all others similarly situated, Plaintiffs v. PATREON, INC., Defendant, Case No. 3:22-cv-03131 (N.D. Cal., May 27, 2022) Video Privacy Protection Act ("VPPA" or "the Act") and state law by disclosing its digital subscribers' identities and video-viewing preferences to Facebook without proper consent. According to the complaint, The VPPA prohibits "video tape service providers," such as Patreon, from knowingly disclosing consumers' personally identifiable information ("PII"), including "information which identifies a person as having requested or obtained specific video materials or services from a video tape provider," without the person having expressly given consent in a standalone consent form. Patreon discloses the user's FID and viewing content to Facebook together in a single transmission. Because the user's FID uniquely identifies an individual's Facebook account, Facebook—or any other person—can use the FID to quickly and easily locate, access, and view the user's corresponding Facebook profile. In simplest terms, the Pixel allows Facebook to know what video content one of its users viewed on Patreon's website, says the suit. At no point are Patreon users informed about Patreon's dissemination of their viewing content to a third party. Nor do Patreon users consent to such sharing, through a standalone consent form or otherwise. As a result, Patreon violates the VPPA by disclosing this information to Facebook, the suit added. PATREON INC. develops application software. The Company supports artists and content creators by letting fans fund each piece of created content. Patreon operates in Palo Alto, California. [BN] The Plaintiff is represented by: Simon S. Grille, Esq. Adam E. Polk, Esq. Kimberly Macey, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Telephone: (415) 981-4800 Email: apolk@girardsharp.com sgrille@girardsharp.com kmacey@girardsharp.com PAYSIGN INC: Faces Chase Shareholder Suit in Nevada Court --------------------------------------------------------- Paysign, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that the company has been named as a defendant in the case captioned "Lorna Chase v. Paysign, Inc. et. al.," (March 25, 2020, D. Nev.) Sais complaint generally alleges that the company violated Section 10(b) of the Exchange Act by making materially false or misleading statements, or failing to disclose material facts, regarding the company's internal control over financial reporting and its financial statements. The complaint seek class action certification, compensatory damages, and attorney's fees and costs. In December 2, 2020, the court consolidated said case to "In re Paysign, Inc. Securities Litigation." In January 12, 2021, plaintiffs filed an Amended Complaint in the consolidated action. Defendants filed a Motion to Dismiss the Amended Complaint on March 15, 2021, which Plaintiffs opposed via an opposition brief filed on April 29, 2021, to which defendants replied on June 1, 2021. Paysign Inc. is a provider of prepaid card products and processing services for corporate, consumer and government applications based in Nevada. PAYSIGN INC: Faces Shi Shareholder Suit in Nevada Court ------------------------------------------------------- Paysign, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that the company has been named as a defendant in case captioned "Yilan Shi v. Paysign, Inc. et. al.," (March 19, 2020, D. Nev.). It is a putative class action filed on behalf of a class of persons who acquired the Company's common stock from March 19, 2019 through March 31, 2020. Sais complaints generally alleges that the company violated Section 10(b) of the Exchange Act by making materially false or misleading statements, or failing to disclose material facts, regarding the company's internal control over financial reporting and its financial statements. The complaint seek class action certification, compensatory damages, and attorney's fees and costs. In December 2, 2020, the court consolidated said case to "In re Paysign, Inc. Securities Litigation." In January 12, 2021, plaintiffs filed an Amended Complaint in the consolidated action. Defendants filed a Motion to Dismiss the Amended Complaint on March 15, 2021, which Plaintiffs opposed via an opposition brief filed on April 29, 2021, to which defendants replied on June 1, 2021. Paysign Inc. is a provider of prepaid card products and processing services for corporate, consumer and government applications based in Nevada. PERPAY INC: Newell TCPA Class Suit Removed to S.D. Florida ---------------------------------------------------------- The case styled BRADLEY NEWELL, individually and on behalf of all others similarly situated v. PERPAY, INC., was removed from the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, to the U.S. District Court for the Southern District of Florida on May 27, 2022. The Clerk of Court for the Southern District of Florida assigned Case No. 9:22-cv-80792 to the proceeding. The case arises from the Defendant's alleged violations of the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act. Perpay, Inc. is a company that operates an all-in-one shopping app, headquartered in Pennsylvania. [BN] The Defendant is represented by: Daniel O. Mena, Esq. Martha R. Mora, Esq. 2525 Ponce de Leon Boulevard Penthouse 12th Floor Coral Gables, FL 33134 Telephone: (305) 779-3560 Facsimile: (305) 779-3561 E-mail: dmena@avilalaw.com mmora@avilalaw.com - and – Meredith C. Slawe, Esq. Michael W. McTigue, Jr., Esq. SKADDEN, ARPS, SLATE MEAGHER & FLOM LLP One Manhattan West New York, NY 10001-8602 Telephone: (212) 735-3000 Facsimile: (212) 735-2000 E-mail: meredith.slawe@skadden.com michael.mctigue@skadden.com - and – Mayra Aguilera, Esq. SKADDEN, ARPS, SLATE MEAGHER & FLOM LLP 300 South Grand Avenue, Suite 3400 Los Angeles, CA 90071 Telephone: (213) 687-5000 Facsimile: (213) 687-5600 E-mail: mayra.aguilera@skadden.com PRO THERAPY SUPPLIES: Jimenez Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Pro Therapy Supplies, LLC. The case is styled as Vanessa Jimenez, individually, and on behalf of all others similarly situated v. Pro Therapy Supplies, LLC, Case No. 1:22-cv-04375 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Pro Therapy Supplies -- https://www.protherapysupplies.com/ -- core mission is to become the internet leader in medical, therapy and fitness supplies.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com PROCTOR & GAMBLE: Court Denies Bid to Transfer Gamboa Suit Venue ---------------------------------------------------------------- In the case, JAN GAMBOA, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. THE PROCTOR & GAMBLE COMPANY, Defendant, Case No. 21 C 6515 (N.D. Ill.), Judge Joan H. Lefkow of the U.S. District Court for the Northern District of Illinois, Eastern Division, denies P&G's motion to transfer venue. I. Introduction Gamboa filed the action individually and on behalf of similarly situated individuals in Illinois state court, alleging that the P&G violated the Illinois Biometric Privacy Act, 740 Ill. Comp. Stat. 14/1, et seq. (typically referred to as BIPA), by collecting, storing, using, and disseminating biometric data with their Oral B smartphone application. P&G removed the action to federal court under the Class Action Fairness Act, 28 U.S.C. Section 1332(d). P&G now seeks to transfer venue to the Southern District of Ohio pursuant to 28 U.S.C. Section 1404(a). II. Background In June 2021, Gamboa, a resident of Illinois, purchased an Oral B iO Series 7G toothbrush. Gamboa also downloaded the Oral B smartphone application, which connects with the user's toothbrush via Bluetooth and tracks the user's brushing habits to provide feedback on how well he is brushing. The Oral B iO Series 7G toothbrush and corresponding app are products of P&G. The user sees a disclosure that Oral B collects "usage data" followed by three bullet points with clickable boxes providing additional information about the app. The first and most relevant point states "REQUIRED FOR REGISTRATION. Terms. You are at least 18, have read P&G Privacy Policy and agree to the Oral-B Mobile app Terms of service." The user can then click on the hyperlinked Terms of service to read the agreement. The agreement states that it "contains very important information about your rights and obligations, as well as limitations and exclusions that may apply to you if you register, participate in and/or use the Oral-B mobile application." Later on, the agreement provides that any disputes related to the agreement "shall be resolved exclusively in the state or federal courts located in Hamilton County, Ohio." The user does not have to actually click the link or scroll through the agreement to register an account in the app; he need only click the box affirming that he has read it, then click the "ALLOW" button at the bottom of the screen. Yet a user does not need to register an account to use the app. Underneath the "ALLOW" button is a "MAYBE LATER" button. If the user clicks "MAYBE LATER," he can continue using the app without registering an account or clicking the box affirming that he agrees to the Terms. Although P&G provided an affidavit describing the registration process, Gamboa never alleged nor did either party present evidence that he registered such an account. Mr. Gamboa alleges that, as part of the app's toothbrushing-tracking technology, P&G captures, collects, stores, uses, and disseminates facial geometry and biometric data in violation of BIPA. P&G now seeks to enforce the forum selection clause in the Terms against Gamboa and transfer venue to the Southern District of Ohio. III. Analysis A. Enforceability of Forum Selection Clause P&G argues that Gamboa is bound by the app's Terms of service agreement and its forum selection clause designating the appropriate venue in Hamilton County, Ohio. Gamboa argues that he never assented to the Terms and therefore is not bound by the forum selection clause. Judge Lefkow opines that no evidence shows that Gamboa ever visited the Oral B website, and he cannot be found to have constructive knowledge of the Terms from a website he may never have visited. Moreover, the app allows the user to bypass registering an account and still use the app by clicking "MAYBE LATER." Thus, while the app puts a reasonable user on notice that there are Terms associated with registering an account and he should investigate them by clicking the hyperlink, the app's disclosure page gives no notice that the terms are equally applicable to mere use of the app. Additionally, there is no evidence that the Terms are presented to the user after he leaves the disclosure page, nor is there evidence of a "clear prompt" directing a user to visit the "Legal" section of the app to read the Terms there. Therefore, P&G has not shown that Gamboa had constructive knowledge of the Terms, and he is not bound by the forum selection clause. B. Transfer Factors Analysis Although the forum selection clause does not apply, the parties also present arguments on the appropriateness of transfer under the traditional factors analyzed on a Section 1404(a) motion. "To support a motion to transfer venue, the moving party must show that (1) venue is proper in this district; (2) venue is proper in the transferee district; (3) the transferee district is more convenient for both the parties and witnesses; and (4) transfer would serve the interest of justice," citing Imperial Crane Servs., Inc. v. Cloverdale Equip. Co., No. 13 C 4750, 2013 WL 5904527, at *5 (N.D. Ill. Nov. 4, 2013) (internal citation omitted). Judge Lefkow finds that the factors weigh in favor of Gamboa. As to the first and second factors, venue is proper in either district. For the third factor, in assessing the convenience for the parties and witnesses, it weighs in favor of Gamboa because the convenience factor favors keeping the case in Illinois. Finally, the interests of justice also favor Gamboa. Gamboa is an Illinois citizen, whose claims are based on an Illinois statute, and the controversy arose in Illinois, meaning that Illinois is a desirable forum with an interest in adjudicating this dispute. Therefore, P&G's motion to transfer is denied. IV. Conclusion P&G's motion to transfer venue is denied with leave to refile in the event that evidence obtained in discovery shows that Gamboa is subject to the forum selection clause. P&G has until 6/8/2022 to file a response to Gamboa's motion to remand, if any. Gamboa has until 6/15/2022 to file a reply. A full-text copy of the Court's May 24, 2022 Opinion & Order is available at https://tinyurl.com/2p8udyje from Leagle.com. PROSPER MARKETPLACE: Faces Suit Over Violations of MD Loan Laws --------------------------------------------------------------- Prosper Marketplace, Inc. (PMI) disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that a class action was filed against the company asserting claims for violation of certain Maryland state laws. In March 2021, PMI was named in a purported class action lawsuit brought by two individual plaintiffs in the Circuit Court for Montgomery County, Maryland, filed on February 3, 2021. The complaint asserts, on behalf of the plaintiffs and the class members, claims for violation of certain Maryland state laws and seeks damages. The plaintiffs also seek a declaration of requirement for Maryland licensure and that PMI did not have the right to collect money from the plaintiffs and the class members on the loan accounts. The litigation was accompanied by a related petition to stay arbitration and demand declaratory judgment in the Circuit Court for Montgomery County, Maryland (the Jones Petition). In April 8, 2021, it was removed to the United States District Court for the District of Maryland. Prosper Marketplace, Inc. is a limited liability company based in California. QUALCOMM INC: Shah, et al., Seek to Certify Class of Investors -------------------------------------------------------------- In the class action lawsuit captioned as Shah v. Qualcomm Incorporated, et al. (RE QUALCOMM INCORPORATED SECURITIES LITIGATION), Case No. 3:17-cv-00121-JO-MSB (S.D. Cal.), the Plaintiffs ask the Court to enter an order: 1. Certifying a class of investors defined as: "All persons or entities who purchased or otherwise acquired the common stock of Qualcomm between February 1, 2012 and January 20, 2017, inclusive, and who were damaged thereby;" Excluded from the Class are the Defendants, the officers and directors of Qualcomm at all relevant times, members of their immediate families and their legal representatives, heirs, agents, affiliates, successors or assigns, Defendants' liability insurance carriers, and any affiliates or subsidiaries thereof, and any entity in which Defendants or their immediate families have or had a controlling interest; 2. Appointing Lead Plaintiffs as Class Representatives; and 3. Approving Lead Plaintiffs' selection of Bernstein Litowitz Berger & Grossmann LLP and Motley Rice LLC as Class Counsel. Qualcomm is an American multinational corporation headquartered in San Diego, California, and incorporated in Delaware. It creates semiconductors, software, and services related to wireless technology. It owns patents critical to the 5G, 4G, CDMA2000, TD-SCDMA and WCDMA mobile communications standards. A copy of the Plaintiffs' motion dated May 23, 2022 is available from PacerMonitor.com at https://bit.ly/3M668Sg at no extra charge.[CC] Counsel for Lead Plaintiffs and Lead Counsel for the Class, are: Jonathan D. Uslaner, Esq. Richard D. Gluck, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 2121 Avenue of the Stars, Suite 2575 Los Angeles, CA 90067 Telephone: (310) 819-3470 E-mail: jonathanu@blbglaw.com rich.gluck@blbglaw.com - and - Gregg S. Levin, Esq. MOTLEY RICE LLC 28 Bridgeside Blvd. Mount Pleasant, SC 29464 Telephone: (843) 216-9000 E-mail: glevin@motleyrice.com RAY KLEIN: Class Settlement in Russell Suit Wins Prelim. Approval ----------------------------------------------------------------- In the case, NICHOLAS RUSSELL and MICHAEL McKIBBEN, Plaintiffs v. RAY KLEIN, INC., Defendant, Case No. 1:19-cv-00001-MC (D. Or.), Judge Michael McShane of the U.S. District Court for the District Oregon grants the Plaintiffs' Unopposed Motion for Preliminary Approval of Class Settlement and Certification. I. Introduction The Plaintiffs bring the class action lawsuit individually and on behalf of others who were similarly injured by the Defendant's alleged violations of the Federal Fair Debt Collection Practices Act ("FDCPA"), Oregon's Unlawful Trade Practices Act ("UTPA"), and Oregon's Unlawful Debt Collection Practices Act ("UDCPA"). After reaching a settlement, the Plaintiffs move for preliminary certification of the class and approval of the settlement agreement under Federal Rule of Civil Procedure 23. II. Background Plaintiffs Nicholas Russell and Michael McKibben are two Oregon debtors. Defendant Ray Klein is a debt collection agency. To collect revenue for outstanding debts, the Defendant issued garnishments to debtors' employers and banks through its in-house attorneys. The Oregon Legislature allows collectors to charge fees that compensate for the expense of hiring attorneys who issue such garnishments. Since 2018, the Defendant has maintained a practice of charging a $45 garnishment "issuance fee" on all consumer debts. The Plaintiffs allege that the Defendant's $45 fee is an abuse of the cost recovery statute because using in-house attorneys relieves the Defendant from ever incurring such an expense. Although the Defendant denies any wrongdoing, the Plaintiffs contend that the fees were unlawfully collected in violation of the FDCPA, UTPA, and UDCPA. The Plaintiffs filed the action in 2019 and amended their complaint four times, while the Defendant has moved to dismiss certain claims. The parties underwent rounds of mediation with Judges Jean Mauer and Michael Hogan, the latest of which successfully produced a settlement agreement. The Plaintiffs now seek preliminary approval of the agreement, as well as preliminary certification of the class for settlement purposes only. The proposed class is a group of Oregonians similarly injured by the $45 issuance fees imposed by Defendant from 2018-2019. The proposed agreement provides for the Defendant's release from liability and any claims of class members who do not opt-out. In turn, the Defendant must pay $2 million into a qualified settlement fund to be dispersed over stipulated expenses. III. Discussion The Plaintiffs seek preliminary approval of the settlement agreement, as well as preliminary certification of the following class: (a) All individual consumers with Oregon addresses, (b) whose wages or accounts or property was garnished by Ray Klein, (c) between Jan. 1, 2018 through and including Sept. 30, 2019, (d) with respect to a debt incurred primarily for personal, family, or household purposes, (e) from whom Ray Klein collected a purported garnishment issuance fee. Judge McShane opines that the proposed class meets the requirements of Rule 23(a) and (b)(3). Accordingly, he grants preliminary certification of the proposed class for settlement purposes only. Having properly certified the class, Judge McShane's analysis turns to preliminary settlement approval. To guide the inquiry into whether a settlement is "fair, reasonable, and adequate," Congress codified four considerations: (A) The class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm's length; (C) the relief provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney's fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3); and (D) the proposal treats class members equitably relative to each other. Assessing each in turn, Judge McShane opines that the factors weigh in favor of preliminarily approving the settlement agreement. Because the agreement appears fair, reasonable, and adequate, he grants preliminary approval of the proposed settlement agreement. The Plaintiffs offer the Court two forms of notice and a comprehensive plan to notify class members. The short form notice contains each requirement enumerated above in clear, plain language. The Administrator will mail the short form notice via U.S.P.S. to the last known addresses of class members, which has already been ascertained through a review of the Defendant's records. If needed, the Administrator will update addresses based on information received from class members. The parties have negotiated a long form notice as well, intended to populate a website accessible to all class members and containing extensive information and documents regarding the settlement. Judge McShane approves of the timeline and delegation of tasks regarding the notices as set forth in the settlement agreement. IV. Conclusion For these reasons, the Plaintiffs' Unopposed Motion for Preliminary Approval of Class Settlement and Certification is granted. Judge McShane certifies the proposed class for settlement purposes only as defined in the settlement agreement and in accordance with his Opinion and Order. He grants preliminary approval of the proposed settlement agreement subject to a forthcoming final approval hearing pursuant to Rule 23(e). Under Rule 23(a), Judge McShane appoints (i) Plaintiffs Nicholas Russell and Michael McKibben as the representatives for the class; (ii) Michael Fuller, Kelly D. Jones, and Matthew Sutton as the class counsel; and (iii) Settlement Services, Inc. as the Settlement Administrator. Judge McShane approves the form and content of the notices in substantially the same form as attached to the settlement agreement and the instant motion. Dates of performance are as follows: a. The Administrator will establish the website for long form notice and send short form notice in the mail by June 23, 2022. b. The Class counsel will file its fee and expense application by June 23, 2022. c. The Class members who desire to be excluded will request exclusion through the Administrator by Aug. 22, 2022. d. Any objections to the settlement agreement or the counsel's fees will be filed or mailed to the Court by Aug. 22, 2022. e. Responses to any and all objections will be filed or mailed by Sept. 12, 2022. f. The counsel will file any documents in support of the final approval hearing, including a motion seeking entry of a final approval order by Sept. 12, 2022. g. The final approval hearing will be held at 9:00 a.m. on Sept. 21, 2022 in Courtroom 2 at the Wayne L. Morse United States Courthouse, 405 E Eighth Avenue, Eugene, Oregon, 97401 before the Hon. Michael J. McShane, United States District Judge for the District of Oregon. A full-text copy of the Court's May 24, 2022 Opinion & Order is available at https://tinyurl.com/2p8d2rmd from Leagle.com. RETROPOLIS LLC: Jimenez Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Retropolis, LLC. The case is styled as Vanessa Jimenez, individually, and on behalf of all others similarly situated v. Retropolis, LLC, Case No. 1:22-cv-04376 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Retropolis, LLC doing business as Shout! Factory -- https://www.shoutfactory.com/ -- is an American home video and music company founded in 2002 as Retropolis Entertainment.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com REX SIGNATURE: Taylor Files Suit in Cal. Super. Ct. --------------------------------------------------- A class action lawsuit has been filed against Rex Signature Services, LLC, et al. The case is styled as Farrah Taylor, and on behalf of herself and all others similarly situated v. Rex Signature Services, LLC, Does 1-50, Case No. 34-2022-00320032-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., May 16, 2022). The case type is stated as "Other Employment – Civil Unlimited" Rex Signature Services is a shared service company and is part of the Accounting, Tax Preparation, Bookkeeping, and Payroll Services Industry.[BN] The Plaintiff is represented by: Christina Marie Lucio, Esq. FARNAES & LUCIO, APC 2235 Encinitas Blvd., Ste. 210 Encinitas, CA 92024-4357 Phone: 760-942-9433 Fax: 760-452-4421 Email: clucio@farnaeslaw.com RIDGWAY LLC: Fails to Provide Overtime Pay, Ruid Suit Alleges ------------------------------------------------------------- MARK RUID, individually and on behalf of all others similarly situated, Plaintiff v. RIDGWAY LLC; and ROBERT KIECKHEFER, Defendants, Case No. 22-cv-634 (E.D. Wi., May 27, 2022) is an action against the Defendants' failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. Plaintiff Ruid was employed by the Defendant as superintendent. RIDGWAY LLC was founded in 2005. The Company's line of business includes installing building equipment. [BN] The Plaintiff is represented by: Scott S. Luzi, Esq. James A. Walcheske, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Telephone: (262) 780-1953 Facsimile: (262) 565-6469 Email: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com RITEWAY MARINE: Tucker Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Riteway Marine Solutions, Inc. The case is styled as Henry Tucker, on behalf of himself and all other persons similarly situated v. Riteway Marine Solutions, Inc., Case No. 1:22-cv-04337 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Riteway Marine -- http://www.ritewaymarinesolutions.net/-- is a state of the art full-service marina located in Babylon Cove on the Great South Bay of Long Island.[BN] The Plaintiff is represented by: Bradly G. Marks, Esq. THE MARKS LAW FIRM, PC 155 East 55th St., Ste. 6a New York, NY 10022 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: brad@markslawpc.com RIVERLANDS HOME: Cambre Bill of Rights Suit Removed to E.D. La. --------------------------------------------------------------- The case styled DREMA CAMBRE, individually and on behalf of all others similarly situated v. RIVERLANDS HOME GROUP, L.L.C. D/B/A CHATEAU ST. JAMES REHAB AND RETIREMENT AND PRIORITY MANAGEMENT GROUP, L.L.C., Case No. 40840-D, was removed from the 23rd Judicial District Court for the Parish of St. James, State of Louisiana, to the U.S. District Court for the Eastern District of Louisiana on May 27, 2022. The Clerk of Court for the Eastern District of Louisiana assigned Case No. 2:22-cv-01517-LMA-DPC to the proceeding. The case arises from the Defendants' alleged violations of the Louisiana Residents' Bill of Rights and Louisiana Admin Code. Riverlands Home Group, LLC, doing business as Chateau St. James Rehab and Retirement, is a provider of skilled nursing facility based in Louisiana. Priority Management Group, LLC is an operator of skilled nursing facilities in Louisiana. [BN] The Defendants are represented by: Jimmy R. Faircloth, Jr., Esq. Mary Katherine Price, Esq. Richard F. Norem, III, Esq. FAIRCLOTH MELTON SOBEL & BASH, LLC 105 Yorktown Drive Alexandria, LA 71303 Telephone: (318) 619-7755 Facsimile: (318) 619-7744 E-mail: jfaircloth@fairclothlaw.com kprice@fairclothlaw.com enorem@fairclothlaw.com ROSEVIEW NURSING: Johnson Bill of Rights Suit Goes to W.D. La. -------------------------------------------------------------- The case styled DIANE JOHNSON, individually and on behalf of all others similarly situated v. ROSEVIEW NURSING & REHABILITATION CENTER, LLC and CENTRAL MANAGEMENT COMPANY, LLC, Case No. 636,719-B, was removed from the 1st Judicial District Court for the Parish of Caddo, State of Louisiana, to the U.S. District Court for the Western District of Louisiana on May 27, 2022. The Clerk of Court for the Western District of Louisiana assigned Case No. 5:22-cv-01423 to the proceeding. The case arises from the Defendants' alleged violations of the Louisiana Residents' Bill of Rights and Louisiana Admin Code. Roseview Nursing & Rehabilitation Center, LLC is an operator of a nursing home and rehabilitation center in Shreveport, Louisiana. Central Management Company, LLC is an operator of a nursing facility in Louisiana. [BN] The Defendants are represented by: Jimmy R. Faircloth, Jr., Esq. Mary Katherine Price, Esq. Richard F. Norem, III, Esq. FAIRCLOTH MELTON SOBEL & BASH, LLC 105 Yorktown Drive Alexandria, LA 71303 Telephone: (318) 619-7755 Facsimile: (318) 619-7744 E-mail: jfaircloth@fairclothlaw.com kprice@fairclothlaw.com enorem@fairclothlaw.com SAFI-G INC: Ponce et al. Sue Over Failure to Pay Wages & OT ----------------------------------------------------------- The case, MARIA PAZ PONCE and WILSON LOZANO REY, individually and on behalf of all others similarly situated, Plaintiffs v. SAFI-G, INC. d/b/a CAFFE BUON GUSTO and NASSER CHORCHIAN, as an individual, Defendants, Case No. 1:22-cv-04341 (S.D.N.Y., May 26, 2022) arises from the Defendants' alleged violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiffs have worked for the Defendants. Plaintiff Ponce was employed from in or around March 2018 until in or around February 2020 and from in or around August 2020 until in or around March 2021 as a waitress, counterperson and cleaner while performing miscellaneous duties for the Defendants. Plaintiff Rey was employed from in or around September 1, 2019 until in or around September 30, 2019 as a dishwasher and cleaner while performing related miscellaneous duties for the Defendants. According to the complaint, the Plaintiffs regularly worked more than 40 hours per week. However, the Defendants did not pay them overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek. Plaintiff Ponce also claims that the failed to pay her the legally prescribed minimum wage for all her hours worked throughout her employment with the Defendants, says the suit. Moreover, the Defendants willfully failed to post notices of the minimum wage and overtime wage requirements in a conspicuous place at the location of their employment, willfully failed to keep payroll records, and willfully failed to provide the Plaintiff and other similarly situated employees with a written notice and with any wage statements upon each payment of their wages, the suit alleges. Safi-G, Inc. operates a restaurant owned by Nasser Chorchian. [BN] The Plaintiffs are represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Tel: (718) 263-9591 SCHROTH SAFETY: Faces Moore Suit Over Interference and Retaliation ------------------------------------------------------------------ ANGELICA MOORE, individually and on behalf of all others similarly situated, Plaintiff v. SCHROTH SAFETY PRODUCTS LLC, Defendant, Case No. 0:22-cv-61020 (S.D. Fla., May 27, 2022) is a class action against the Defendant for interference and retaliation under the Family and Medical Leave Act of 1993. The Plaintiff was employed by the Defendant as an operator from approximately January 14, 2001 until her wrongful termination on or about March 7, 2022. Schroth Safety Products LLC is a manufacturer of occupant protection and restraint systems, headquartered in Broward County, Florida. [BN] The Plaintiff is represented by: Tanesha W. Blye, Esq. R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: tblye@saenzanderson.com msaenz@saenzanderson.com SDH PIZZA: Mayo-Keller Sues Over Unpaid Delivery Drivers' Wages --------------------------------------------------------------- DEVONE MAYO-KELLER, individually and on behalf of all others similarly situated, Plaintiff v. SDH PIZZA, INC., and STEVEN DOUGLAS HALL, Defendants, Case No. 2:22-cv-00675-MHH (N.D. Ala., May 26, 2022) is a collective action complaint brought against the Defendants for their alleged willful violations of the Fair Labor Standards Act. The Plaintiff has worked for the Defendants as an hourly-paid delivery driver from approximately January 2020 until October 2020. According to the complaint, the Plaintiff and other similarly situated delivery drivers performed dual jobs by delivering food to the Defendant's customers and receive tips, and working inside the store completing non-tipped duties. While inside the store performing non-tipped, they were paid a rate at or close to minimum wage per hours. On the other hand, while outside of the restaurant making deliveries, the Defendants paid them less than minimum wage per hour for all hours worked. The Defendants allegedly did not adequately reimburse them for their automobile expenses and other expenses incurred while delivering pizza for the Defendants' customers, thereby depriving them of minimum wages in accordance with the FLSA, says the suit. Moreover, the Plaintiff and other similarly situated delivery drivers occasionally worked hours over 40 in a week, but they were not given a sufficient overtime premium at the rate of one and one-half times their regular rates of pay due to the unreimbursed mileage expenses, the suit added. The Plaintiff seeks to recover unpaid minimum wages and overtime premiums, as well as liquidated damages, attorney's fees and litigation costs, pre-judgement interest, and other relief as the Court may deem just and proper. SHD Pizza, Inc. owns and operates Domino's Pizza franchises in Alabama. Steven Douglas Hall is a principal, director, officer and/or owner of SDH Pizza. [BN] The Plaintiff is represented by: Courtney Lowery, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AR 72211 Tel: (501) 221-0088 Fax: (888) 787-2040 E-mail: courtney@sanfordlawfirm.com SELECT EMPLOYMENT: Class & Nine Subclasses Certfied in Romero ------------------------------------------------------------- In the class action lawsuit captioned as Elsie Romero et al v. Select Employment Services, Inc. et al., Case No. 2:19-cv-06369-TJH-AGR (C.D. Cal.), the Hon. Judge Terry J. Hatter, Jr.entered an order that the renewed motion for class certification is granted as follows: -- The Class shall be defined as follows: "All persons employed by Defendant California Rehabilitation Institute, L.L.C. as non-exempt employees at any time between May 31, 2016, and May 23, 2022." -- Nine subclasses, defined as follows: Subclass 1: All persons employed by California Rehabilitation Institute, L.L.C. as non-exempt employees between May 31, 2016, and May 23, 2022, who were required to carry a communication device and be available during their meal breaks. Subclass 2: All persons employed by California Rehabilitation Institute, L.L.C. as non-exempt employees between May 31, 2016, and May 23, 2022, who were required to carry a communication device and be available during their rest breaks. Subclass 3: All persons employed by California Rehabilitation Institute, L.L.C. as non-exempt employees between May 31, 2016, and May 23, 2022, who (i) worked a shift of 3.5 hours or more and received no rest breaks; (ii) worked a shift of more than six hours and received fewer than two rest breaks; or (iii) worked a shift more than 8 10 hours and received fewer than three paid rest breaks. Subclass 4: All persons employed by California Rehabilitation Institute, L.L.C. as non-exempt employees between May 31, 2016, and May 23, 2022, who worked a shift over 12 hours for which California Rehabilitation Institute, L.L.C.'s time records do not show a second 30- minute meal period. Subclass 5: "All persons employed by California Rehabilitation Institute, L.L.C. as non-exempt employees between May 31, 2016, and May 23, 2022, who received at least one meal or rest break premium. Subclass 6: "All persons employed by California Rehabilitation Institute, L.L.C. as non-exempt employees between May 31, 2016, and May 23, 2022, who worked an overnight shift followed by a shift that began the same calendar day and were not paid overtime for all time worked in excess of eight hours in a 24-hour period, or, if they worked an alternative workweek schedule, in excess of 12 hours in a 24-hour period. Subclass 7: "All persons employed by California Rehabilitation Institute, L.L.C. as non-exempt employees between May 31, 2016, and May 23, 2022, who used their personal cell phones for work purposes and were not compensated for that expense." Subclass 8: All persons employed by California Rehabilitation Institute, L.L.C. as non-exempt employees between May 31, 2016, and May 23, 2022, who dry cleaned or separately laundered their uniforms and were not compensated for those expenses. Subclass 9: All persons employed by California Rehabilitation Institute, L.L.C. as non-exempt employees between May 31, 2016, and May 23, 2022, who received a wage statement from California Rehabilitation Institute, L.L.C. -- Plaintiff Elsie Romero is, appointed as class representative for Subclasses 1, 2, 3, 4, 5, 6, 7, 8, and -- Plaintiff Ricardo Ibarra is appointed as class representative for Subclasses 1, 2, 3, and 9. -- Plaintiff Lauren Lindsay is appointed as class representative for Subclasses 1, 2, 3, 7, and 9. -- Matthew J. Matern and Launa Adolph are appointed as class counsel. Select Employment Services is a locally-owned staffing company with experience serving the Laredo and surrounding markets. A copy of the Court's order dated May 23, 2022 is available from PacerMonitor.com at https://bit.ly/3PU0bef at no extra charge.[CC] SERVICE KING: Hassanpoor Sues Over Body Technicians' Unpaid Wages ----------------------------------------------------------------- MOHAMMAD HASSANPOOR, individually and on behalf of all others similarly situated, Plaintiff v. SERVICE KING PAINT & BODY, LLC, Defendant, Case No. 2:22-at-00539 (E.D. Cal., May 27, 2022) is a class action against the Defendant for violations of the Fair Labor Standards Act including failure to pay overtime wages, failure to pay minimum wages, and retaliation. The Plaintiff worked for the Defendant as a body technician at various places of business in Sacramento, Yolo, and Placer Counties in California. Service King Paint & Body, LLC is a national automotive collision repair company, headquartered in Richardson, Texas. [BN] The Plaintiff is represented by: Clayeo C. Arnold, Esq. Joshua H. Watson, Esq. CLAYEO C. ARNOLD A PROFESSIONAL LAW CORPORATION 865 Howe Avenue Sacramento, CA 95825 Telephone: (916) 777-7777 Facsimile: (916) 924-1829 E-mail: jwatson@justice4you.com SHATTUCK LABS: Faces Two Shareholder Suits in NY Court ------------------------------------------------------ Shattuck Labs, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that class action lawsuits were filed against the company alleging that they made or are responsible for false or misleading statements. In January 31, 2022 and February 11, 2022, putative class action lawsuits were filed in the U.S. District Court for the Eastern District of New York against the company and certain of its officers and directors. In each complaint, the plaintiff cites the volatility in its common stock and alleges that the defendants made or are responsible for false or misleading statements regarding its collaboration agreement with Takeda. The plaintiffs in both lawsuits seek a ruling that the case may proceed as a class action, and seek unspecified damages and attorneys' fees, expert fees and costs. Shattuck Labs, Inc. innovative clinical-stage biotechnology company based in Texas. SILVERBACK THERAPEUTICS: Faces Dresner Securities Suit in WA Court ------------------------------------------------------------------ Silverback Therapeutics, Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that a class action was filed against the company alleging violations of the Securities Act of 1933 and Securities Exchange Act of 1934. On November 5, 2021, a securities class action complaint was filed against the company and certain of the company's officers and directors in the U.S. District for the Western District of Washington, captioned "Dresner v. Silverback Therapeutics, Inc., et al.," Case No. 2:21-cv-01499. The court has appointed lead plaintiff and lead plaintiff's counsel, and plaintiff's counsel then filed the amended complaint on April 11, 2022. The amended complaint alleges that between December 3, 2020 and March 31, 2022, the Company and certain of the company's officers and directors violated Sections 11 and 15 of the Securities Act of 1933, as amended; and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Securities and Exchange Commission Rule 10b-5 promulgated thereunder, by making allegedly false and misleading statements in various SEC filings and press releases regarding the clinical and commercial prospects of the company's product candidate, "SBT6050," which is now discontinued. The complaint seeks unspecified damages and interest, as well as attorneys' fees and other costs. Silverback Therapeutics, Inc. is a biopharmaceutical company based in Washington. SOUTH CAROLINA: Wins Summary Judgment v. Huger Class ---------------------------------------------------- In the class action lawsuit captioned as VONEA HUGER and ROSHANDA GERALD, on behalf of themselves and all others similarly situated, v. South Carolina Department of Corrections et al., Case No. 3:20-cv-02871-MGL (D.S.C.), the Hon. Judge Mary Geiger Lewis entered an order granting the Defendants' motion for summary judgment. The claims against John Does 1–10 is dismissed with prejudice, Judge Lewis says. The Plaintiffs bring this action against the Defendants alleging that SCDC and Individual Defendants violated Plaintiffs' Fourth Amendment rights during a strip search at Kirkland Correctional Institution (KCI). The Plaintiffs brought this Section 1983 action seeking monetary and injunctive relief. Although they pled this case as a class action, Plaintiffs never moved for class certification. After discovery, the Defendants brought the instant motion for summary judgment. The Plaintiffs filed their response in opposition to the motion, and then Defendants filed their reply in support. A copy of the Court's order dated May 23, 2022 is available from PacerMonitor.com at https://bit.ly/3a7tOZj at no extra charge.[CC] SPARC GROUP: Faces Gregory Suit Over Failure to Timely Pay Wages ---------------------------------------------------------------- RHYS GREGORY, individually and on behalf of others similarly situated, Plaintiff v. SPARC GROUP LLC (f/k/a AERO OPCO LLC) d/b/a AEROPOSTALE, Defendant, Case No. 1:22-cv-03144 (E.D.N.Y., May 27, 2022) is a class action complaint brought against the Defendant for its alleged delinquent wage payments made to its workers in violation of New York Labor Law. The Plaintiff was employed by the Defendant as a non-exempt, hourly-paid manual laborer from approximately August 2019 until March 2020. The Plaintiff alleges that the Defendant failed to timely pay his and other similarly situated worker's wages. Throughout their employment with the Defendant, the Defendant compensated them every other week or on a bi-weekly basis instead of a weekly basis, says the Plaintiff. The Plaintiff seeks for himself and all other similarly situated manual laborers the damages resulted from the Defendant's failure to timely pay wages, plus liquidated damages, interest, attorneys' fees and costs, and other relief as the Court may deem appropriate. Sparc Group LLC is a fashion industry leader that designs, sources, manufacturers, distributes and markets women's, men's and kids apparel, and accessories in key markets worldwide for iconic brands. [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 Tel: (516) 873-9550 SST CONSTRUCTION: Garcia Files Suit in Cal. Super. Ct. ------------------------------------------------------ A class action lawsuit has been filed against SST Construction LLC, et al. The case is styled as Ronnie Garcia, on behalf of themselves and on behalf of all similarly situated individuals v. SST Construction LLC, Does 1-10, Case No. 34-2022-00320638-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., May 26, 2022). The case type is stated as "Other Employment - Civil Unlimited." SST Construction -- http://sstconstructionllc.com/-- specializes in home remodeling and upgrades, complete renovation/restoration and will soon be expanding to include new home building.[BN] The Plaintiff is represented by: Alex P. Katofsky, Esq. GAINES & GAINES, APLC 4550 E Thousand Oaks Blvd., Ste. 100 Westlake Village, CA 91362-3824 Phone: 818-703-8985 Fax: 818-703-8984 Email: alex@gaineslawfirm.com ST. JOSEPH: Cole Bill of Rights Suit Removed to E.D. Louisiana -------------------------------------------------------------- The case styled ANSANTA COLE, as representative of OSBORNE PICOU, JR., individually and on behalf of all others similarly situated v. ST. JOSEPH OF HARAHAN, LLC, HIGHPOINT HEALTHCARE, LLC, and PLANTATION MANAGEMENT COMPANY, LLC, Case No. 827-574-I, was removed from the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, to the U.S. District Court for the Eastern District of Louisiana on May 27, 2022. The Clerk of Court for the Eastern District of Louisiana assigned Case No. 2:22-cv-01540-SSV-DMD to the proceeding. The case arises from the Defendants' alleged violations of the Louisiana Residents' Bill of Rights and Louisiana Admin Code. St. Joseph of Harahan, LLC is an operator of a rehabilitation and long-term care facility located in Harahan, Louisiana. Highpoint Healthcare, LLC is a healthcare services provider in Louisiana. Plantation Management Company, LLC is a health care company in Louisiana. [BN] The Defendants are represented by: Jimmy R. Faircloth, Jr., Esq. Mary Katherine Price, Esq. Richard F. Norem, III, Esq. FAIRCLOTH MELTON SOBEL & BASH, LLC 105 Yorktown Drive Alexandria, LA 71303 Telephone: (318) 619-7755 Facsimile: (318) 619-7744 E-mail: jfaircloth@fairclothlaw.com kprice@fairclothlaw.com enorem@fairclothlaw.com ST. LOUIS, MO: District Court Certifies Classes in Cody v. MSI -------------------------------------------------------------- In the case, JAMES CODY, et al., Plaintiffs v. CITY OF ST. LOUIS, Defendant, Case No. 4:17-CV-2707 AGF (E.D. Mo.), Judge Audrey G. Fleissig of the U.S. District Court for the Eastern District of Missouri, Eastern Division, grants the Plaintiffs' Motion Pursuant to Fed. R. Civ. P. 23(c)(1)(C) Proposing Narrower Class Definitions and Renewing Motion for Class Certification. I. Background The current named Plaintiffs, James Cody, Jasmine Borden, Michael Mosley, Diedre Wortham, Callion Barnes, and Eddie Williams, were detained in MSI at various points from January to October of 2017. They claim that they endured inhumane conditions, in violation of the Eighth and Fourteenth Amendments, while detained either pretrial or post-conviction in MSI. The Plaintiffs initially sought class certification of the following classes of pretrial and post-conviction detainees: a. Pretrial Class: All persons who are or were pretrial detainees in MSI, and who were or will be released from MSI on or after Nov. 13, 2012. b. Pretrial Heat Subclass: All persons who are members of the Pretrial Class who were assigned to a dorm, pod, or other area at MSI in which the internal temperature equaled or exceeded 88 degrees Fahrenheit. c. Post-Conviction Class: All persons who are or were post-conviction detainees in MSI, and who were or will be released from MSI on or after Nov. 13, 2012. d. Post-Conviction Heat Subclass: All persons who are members of the Post-Conviction Class who were assigned to a dorm, pod, or other area at MSI in which the internal temperature equaled or exceeded 88 degrees Fahrenheit. In its Memorandum and Order denying class certification, the Court found that the Plaintiffs failed to satisfy the requirements of Rules 23(a) and (b). Specifically, the Court found that the Plaintiffs' proposed decade-long, open-ended class periods, which ran from 2012 to some indefinite future point when detainees "will be released from MSI," were unascertainable and failed to satisfy Rule 23(a)'s commonality and Rule 23(b)(3)'s predominance factors. The Court noted that it was undisputed that the City implemented substantial changes to MSI over the proposed class period, including installing air conditioning units in July of 2017 and drastically decreasing MSI's population by the summer of 2021. Further, the Plaintiffs' brief in support of their original motion for class certification proposed to combine class members' complaints of poor facility conditions, including pest infestations, plumbing problems, and mold, with their complaints of excessive force. The Court rejected this proposal in light of the differing legal standards between conditions-of-confinement and excessive force claims, and the fact that none of the named Plaintiffs was actually subjected to any use of force. The Court noted that "a more focused claim, covering a more discrete time period, on behalf of a more uniform class, may well be appropriate for class certification. But the Plaintiffs had not proposed such a class or offered the Court any guidance to create one." The Plaintiffs now attempt to do just that. In their Renewed Motion, the Plaintiffs seek certification under Rule 23(b)(3) of the following modified classes of pretrial and post-conviction detainees: a. Narrowed Pretrial Conditions Class: All persons who were pretrial detainees in MSI between Nov. 13, 2012 and July 1, 2018. b. Narrowed Pretrial Heat Subclass: All pretrial detainees who were detained in dormitories in MSI between Nov. 13, 2012 and July 24, 2017 on days where the ambient air temperature in St. Louis, Missouri equaled or exceeded 88 degrees Fahrenheit. c. Narrowed Post-Conviction Conditions Class: All persons who were post-conviction detainees in MSI between Nov. 13, 2012 and July 1, 2018. d. Narrowed Post-Conviction Heat Subclass: All post-trial detainees who were detained in dormitories in MSI between Nov. 13, 2012 and July 24, 2017 on days where the ambient air temperature in St. Louis, Missouri equaled or exceeded 88 degrees Fahrenheit. The Plaintiffs assert that these proposed narrowed class definitions address the deficiencies previously identified by the Court in the following ways: a. The proposed conditions classes provide a definitive end date and narrow the timeframe of the class period; b. The proposed conditions classes eliminate the use of force claim, thereby proposing a class solely related to the conditions of the jail; c. The proposed heat subclasses provide a definitive end-date and narrow the timeframe of the class period to the period in which air conditioning was not in the cell; d. The proposed heat subclasses eliminate detainees held in pods, so that only class members who were held in the MSI dormitories are class members; and e. The proposed heat subclasses now use the objective criteria of external temperature at or above 88 degrees in order to generate the classes incarcerated in unconstitutionally hot conditions. The City opposes the Plaintiffs' Renewed Motion. The City argues that the Plaintiffs should not be permitted to renew their motion for class certification at this late stage and that, in any event, the purportedly narrowed classes still fail to satisfy Rule 23. II. Discussion As noted in its prior Memorandum and Order, certification of a class is proper only if, after "rigorous analysis," the Court is satisfied that the Rule 23 requirements are met. Rule 23(a) allows individuals to sue on behalf of a class if: (1) the class is so numerous that joinder of all members is impracticable (numerosity); (2) there are questions of law or fact common to the class (commonality); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and (4) the representative parties will fairly and adequately protect the interests of the class (adequacy). Rule 23(b)(3) requires that "the questions of law or fact common to class members predominate over any questions affecting only individual members" (predominance), and that a class action "is superior to other available methods for fairly and efficiently adjudicating the controversy" (superiority). A. Narrowed Conditions Classes The Plaintiffs argue that the Narrowed Pretrial Conditions Class and Narrowed Post-Conviction Conditions Class (the "Narrowed Conditions Classes") can be ascertained through objective criteria, including review of the City's own records. They further limit the Narrowed Conditions Classes to the time period of Nov. 13, 2012 to July 1, 2018. According to the Plaintiffs, this period captures the time period before the City began implementing changes to MSI's physical facility. They note that the bulk of their conditions-related evidence comes from their proposed narrowed time period. The City argues that the Narrowed Conditions Classes fail to satisfy Rule 23's requirements because each class member was subject to a different set of conditions for different periods of time. The City also argues that the narrowed class definitions fail to distinguish between inmates housed in MSI's dormitories and those housed in what the parties describe as MSI's "PODS"; the City asserts (without citing evidence) that the PODS were constructed in the 1990s, after the dormitories were constructed, and therefore had more updated equipment and systems. Finally, the City argues that the named Plaintiffs were only incarcerated in 2017, and they therefore cannot demonstrate that their experiences were similar to or typical of those incarcerated in the years before or after. The Court will address these arguments as they relate to Rule 23's factors. Judge Fleissig holds that the Narrowed Conditions Classes satisfy the requirements of Rules 23(a) and (b)(3). She thus certifies the Narrowed Pretrial Conditions Class under Rule 23(b)(3), and appoints Jasmine Borden, Michael Mosley, Diedre Wortham, Eddie Williams, and Callion Barnes as the Class Representatives. She also certifies the Narrowed Post-Convictions Conditions Class under Rule 23(b)(3), and appoints James Cody and Callion Barnes as the Class Representatives. B. Narrowed Heat Subclasses The Plaintiffs contend that the Narrowed Pretrial Heat Subclass and Narrowed Post-Conviction Heat Subclass ("Narrowed Heat Subclasses") can be ascertained through objective criteria, including the City's records and national weather data. They limit the classes to detainees housed in MSI's dormitories because they concede that the PODS were equipped with some form of air conditioning (though Plaintiffs do not concede that the air conditioning was adequate). They also limit the Narrowed Heat Classes to the time period of Nov. 12, 2012 through July 24, 2017, the date that they allege temporary air conditioning was installed in MSI's dormitories. Based on national weather data, Plaintiffs argue that, during this limited class period, there were at least 310 days in which the external air temperatures reached above 88 degrees Fahrenheit. The City contends that differences in the named Plaintiffs' testimony demonstrate that the Plaintiffs cannot establish commonality or predominance. Further, the City asserts that the proposed 88-degree temperature threshold is arbitrary and inconsistent with federal law. Finally, the City argues that it cannot be easily ascertained from the City's records whether a detainee was housed in the dormitories as opposed to PODS. Judge Fleissig holds that the Narrowed Heat Subclasses satisfy the requirements of Rules 23(a) and (b)(3). She thus certifies the Narrowed Pretrial Heat Subclass under Rule 23(b)(3), and appoints Michael Mosley and Eddie Williams as the Class Representatives. She also certifies the Narrowed Post-Convictions Heat Subclass under Rule 23(b)(3), and appoint James Cody and Callion Barnes as the Class Representatives. III. Conclusion Accordingly, Judge Fleissig grants the Plaintiffs' Renewed Motion. Named Plaintiffs Jasmine Borden, Michael Mosley, Diedre Wortham, Eddie Williams, and Callion Barnes are appointed as the Class Representatives to represent the Narrowed Pretrial Conditions Class, defined as follows: All persons who were pretrial detainees in MSI between Nov. 13, 2012 and July 1, 2018. Named Plaintiffs Michael Mosley and Eddie Williams are appointed as the Class Representatives to represent the Narrowed Pretrial Heat Subclass, defined as follows: All pretrial detainees who were detained in dormitories in MSI between Nov. 13, 2012 and July 24, 2017 on days where the ambient air temperature in St. Louis, Missouri equaled or exceeded 88 degrees Fahrenheit. Named Plaintiffs James Cody and Callion Barnes are appointed as the Class Representatives to represent the Narrowed Post-Conviction Conditions Class and Narrowed Post-Conviction Heat Subclass, defined as follows: a. Narrowed Post-Conviction Conditions Class: All persons who were post-conviction detainees in MSI between Nov. 13, 2012, and July 1, 2018. b. Narrowed Post-Conviction Heat Subclass: All post-trial detainees who were detained in dormitories in MSI between Nov. 13, 2012, and July 24, 2017, on days where the ambient air temperature in St. Louis, Missouri equaled or exceeded 88 degrees Fahrenheit. Nathaniel Carroll, Matthew Dollan, Brandon Jackson, Blake Strode, Maureen Hanlon, Jacki Langum, and John Waldron of ArchCity Defenders, Inc., 440 N. 4th Street, Suite 390, St. Louis, Missouri 63102; and Robert J. Alesi, Gail Rodgers, Dennis Kiker, Saher Valiani, and Matthew Riley of DLA Piper, 1251 Avenue of the Americas New York, NY 10020, are appointed as the Class Counsel. The parties will promptly meet and confer and will file, within 14 days of the date of the Memorandum and Order, a joint proposed schedule for the remainder of the litigation, including prompt proposed deadlines for the re-referral of the action to mediation, the filing of dispositive and/or other anticipated pretrial motions, and trial, as well as the estimated length of trial. A full-text copy of the Court's May 25, 2022 Memorandum & Order is available at https://tinyurl.com/3wrewjzk from Leagle.com. STYM LLC: Chalas Files ADA Suit in S.D. New York ------------------------------------------------ A class action lawsuit has been filed against Stym, LLC. The case is styled as Ana Chalas, individually, and on behalf of all others similarly situated v. Stym, LLC, Case No. 1:22-cv-04366 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Stym Bedtime Diffuser -- https://bedtimediffuser.com/ -- is a personal aromatherapy device.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com SUFFOLK MARINE CENTER: Tucker Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Suffolk Marine Center, Inc. The case is styled as Henry Tucker, on behalf of himself and all other persons similarly situated v. Suffolk Marine Center, Inc., Case No. 1:22-cv-04336 (S.D.N.Y., May 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Suffolk Marine Center -- https://www.suffolkmarine.com/ -- is located in the heart of Babylon Village, and is a New York's authorized dealer for Regulator and Sea Hunt Boats.[BN] The Plaintiff is represented by: Bradly G. Marks, Esq. THE MARKS LAW FIRM, PC 155 East 55th St., Ste. 6a New York, NY 10022 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: brad@markslawpc.com TENNESSEE VALLEY AUTHORITY: Faces Breach of Contract Suit in VA --------------------------------------------------------------- Tennessee Valley Authority (TVA) disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that on June 9, 2020, a proposed class action lawsuit was filed against TVA and one of its LPCs, Bristol Virginia Utilities Authority (BVUA), in federal court in Abingdon, Virginia, by a LPC customer, asserting claims for breach of contract and violation of the Administrative Procedure Act. The lawsuit alleges that the customers of TVA's LPCs are third-party beneficiaries under TVA's wholesale power contracts with its LPCs and that TVA's rate changes dating back to 2010 violate Section 11 of the TVA Act. Section 11 of the TVA Act establishes the broad policy that TVA power projects shall be considered primarily for the benefit of the people of the Tennessee Valley and that service to industry is a secondary purpose to be used principally to secure a sufficiently high load factor and revenue returns to permit domestic and rural use at the lowest possible rates. The remedies requested include an injunction prohibiting TVA rate changes that violate Section 11, monetary damages, and repayment of rates charged in violation of Section 11. TVA and BVUA filed motions to dismiss the case on November 9, 2020, and filed supplemental motions to dismiss on December 21, 2020, in response to an amended complaint filed by the plaintiff. Oral argument on the motions was held on February 18, 2021, and on March 19, 2021, the court granted TVA's and BVUA's motions to dismiss. The plaintiff appealed the district court's judgment to the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) on April 15, 2021. The parties filed their briefs with the Fourth Circuit, and oral argument was held on January 27, 2022. Tennessee Valley Authority is a corporate agency and instrumentality of the United States based in Tennessee. TRANSWORLD SYSTEMS: Court Dismisses Osorio FDCPA Complaint ---------------------------------------------------------- In the case, MARTHA OSORIO, on behalf of herself and all others similarly situated, Plaintiffs v. TRANSWORLD SYSTEMS, INC. and JOHN DOES 1-25, Defendants, Civ. No. 2:21-cv-19812 (WJM) (D.N.J.), Judge William J. Martini of the U.S. District Court for the District of New Jersey grants TSI's motion to dismiss the complaint for failure to state a claim. I. Introduction In the putative class action, Plaintiff Osorio claims that a collection letter sent by Defendant Transworld Systems, Inc. ("TSI"), a debt collector, violates the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Sect 1692 et seq. More specifically, Osorio alleges that the letter fails to clearly identify the current creditor to whom the alleged debt is owed, such that the least sophisticated debtor would be confused or deceived. The matter is now before the Court on TSI's motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. II. Background Ms. Osorio incurred a financial obligation to Garden State Healthcare Associates and the debt was placed with TSI for collections. Attempting to collect on the debt, TSI sent Osorio a collection letter dated Sept. 17, 2021, a copy of which is attached to the Complaint as Exhibit A. The body of the Letter begins with the message: "Your account has been placed with us for collections." The Letter then restates the balance due and the TSI account number from above and provides information about Osorio's debt collection rights and how to dispute the debt. The Letter also states: "If you request of this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor." Despite the Letter expressly identifying Garden State as the creditor, Osorio alleges that the Letter fails to clearly identify whether Garden State is the original creditor or the current creditor, which Osorio claims is a violation of Section 1692g(a)(2). She alleges that this deficiency causes confusion as to who placed the debt with TSI and to whom the debt is actually owed, making the Letter false, deceptive, or misleading, in violation of Section 1692e(10). TSI, in seeking dismissal of the Complaint under Rule 12(b)(6), argues that the Letter adequately identifies the name of the creditor to whom the debt is owed as required by the FDCPA and, read in its entirety and with care, is not confusing or misleading to the least sophisticated debtor. III. Discussion The FDCPA protects against abusive debt collection practices "by imposing affirmative requirements on debt collectors and prohibiting a range of debt-collection practices." The Court determines whether a communication from a debt collector violates the FDCPA by analyzing the debt collector's statements from the perspective of the "least sophisticated debtor" in order to protect "all consumers, the gullible as well as the shrewd," while simultaneously "preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care." First, Judge Martini opines that Osorio has not stated a claim that TSI's Letter violates Section 1692g(a). Contrary to her assertion that the Letter violates the statute because it does not identify whether Garden State is the original creditor or the current creditor, "the FDCPA 'does not require that the creditor to whom the debt is owed be labeled current creditor.'" Nor does the FDCPA require the debt collector to state in the written notice how it received the account that it is attempting to collect. Instead, the statute simply requires the debt collector to identify the name of the creditor to whom the debt is owed. TSI did so here by conspicuously and unambiguously identifying Garden State as the creditor. Second, because Osorio cannot prevail on her claim under Section 1692g(a), she likewise cannot proceed under Section 1692e(10). Osorio concedes that her Section 1692e(10) claim that the Letter used false representation or deceptive means in its collection efforts is premised on the same creditor language underlying her Section 1692g(a) claim. "When language is upheld pursuant to Section 1692g, that analysis is usually dispositive for Section 1692e." Because the Letter clearly identifies the name of the creditor to whom the debt is owed as required by Section 1692g(a) and is not misleading to the least sophisticated debtor, Osorio has not stated a claim under Section 1692e(10). IV. Conclusion For the reasons he set forth, Judge Martini concludes that Osorio's allegations do not state a claim for relief under the FDCPA. TSI's motion to dismiss is granted, and the Complaint is dismissed. An appropriate Order will follow. A full-text copy of the Court's May 25, 2022 Opinion is available at https://tinyurl.com/3pvrbdbk from Leagle.com. TRANSWORLD SYSTEMS: Osorio Appeals FDCPA Suit Dismissal ------------------------------------------------------- Plaintiff Martha Osorio is taking an appeal from a court ruling dismissing her lawsuit entitled MARTHA OSORIO, on behalf of herself and all others similarly situated, Plaintiffs v. TRANSWORLD SYSTEMS, INC. and JOHN DOES 1-25, Defendants, Case No. 2-21-cv-19812, in the United States District Court for the District of New Jersey. In this putative class action filed on November 6, 2021, Plaintiff Martha Osorio claims that a collection letter sent by Defendant Transworld Systems, a debt collector, violates the Fair Debt Collection Practices Act, 15 U.S.C. Section 1692 et seq. More specifically, Osorio alleges that the letter fails to clearly identify the current creditor to whom the alleged debt is owed, such that the least sophisticated debtor would be confused or deceived. On February 28, 2022, the Defendant filed a motion to dismiss for failure to state a claim, which the Court granted on May 25, 2022, through an order entered by Judge William J. Martini. The appellate case is captioned as Martha Osorio v. Transworld Systems Inc., Case No. 22-2013, in the United States Court of Appeals for the Third Circuit, filed on May 27, 2022.[BN] Plaintiff-Appellant MARTHA OSORIO, on behalf of herself and all others similarly situated, is represented by: Joseph K. Jones, Esq. Benjamin J. Wolf, Esq. JONES WOLF & KAPASI 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227-5900 E-mail: jkj@legaljones.com bwolf@legaljones.com Defendant-Appellee TRANSWORLD SYSTEMS INC. is represented by: Aaron R. Easley, Esq. SESSIONS ISRAEL & SHARTLE 3 Cross Creek Drive Flemington, NJ 08822 Telephone: (908) 237-1660 E-mail: aeasley@sessions-law.biz TRINET HR: Huang Files Bid for Class Certification -------------------------------------------------- In the class action lawsuit captioned as SHIQIONG HUANG, CHRIS R. STOKOWSKI, EVERETT UHL, MARK J. HEARON and MARY T. PATTERSON, individually and on behalf of all others similarly situated, v. TRINET HR III, INC., TRINET HR IV, INC., THE BOARD OF DIRECTORS OF TRINET HR III, INC., THE BOARD OF DIRECTORS OF TRINET HR IV, INC., THE INVESTMENT COMMITTEE OF TRINET GROUP, INC., and JOHN DOES 1-30, Case No. 8:20-cv-02293-VMC-TGW (M.D. Fla.), the Plaintiffs ask the Court to enter an order certifying the following class pursuant to FED. R. CIV. P. 23(a) and (b)(1): "All persons, except Defendants and their immediate family members, who were participants in or beneficiaries of the Plans, at any time between September 29, 2014 through the date of judgment." Additionally, the Plaintiffs ask that the appoint them as representatives for the certified Class, and appoint their counsel, Capozzi Adler, P.C., as Class Counsel. TriNet provides businesses with HR solutions including payroll, benefits, risk management and compliance. A copy of the Plaintiff's motion dated May 23, 2022 is available from PacerMonitor.com at https://bit.ly/3z7zhtF at no extra charge.[CC] The Plaintiff is represented by: Joseph M. Sternberg, Esq. CAPOZZI ADLER, P.C. Telephone: (407) 495-1893 Facsimile: (407) 362-6325 722 W. Smith Street Orlando, FL 32804 E-mail: joseph@landersandsternberg.com - and - Mark K. Gyandoh, Esq. Gabrielle P. Kelerchian, Esq. Donald R. Reavey, Esq. 312 Old Lancaster Road Merion Station, PA 19066 Telephone: (610) 890-0200 Facsimile: (717) 233-4103 E-mail: markg@capozziadler.com gabriellek@capozziadler.com donr@capozziadler.com UNITED STAFFING: Class of Filipino Nurses Certified in Magtoles --------------------------------------------------------------- In the case, MARY GRACE MAGTOLES, AIRA C. TAN, ANA MYRENE ESPINOSA, and ANA MERVINE ESPINOSA, individually and on behalf of all others similarly situated, Plaintiffs v. UNITED STAFFING REGISTRY, INC. d/b/a UNITED HOME CARE and BENJAMIN H. SANTOS, Defendants, Case No. 21-CV-1850 (KAM) (PK) (E.D.N.Y.), Judge Kiyo A. Matsumoto of the U.S. District Court for the Eastern District of New York grants the Nurse Plaintiffs' motion for class certification pursuant to Federal Rule of Civil Procedure 23. I. Background Nurse Plaintiffs Mary Grace Magtoles, Aira Tan, and Ana Myrene Espinosa are Filipino nurses, who worked for Defendant United Staffing Registry, Inc., a healthcare staffing agency owned by Defendant Benjamin H. Santos. The Nurse Plaintiffs assert claims for violations of the Trafficking Victims Protection Act ("TVPA"), 18 U.S.C. Section 1589, et seq., declaratory judgment, and breach of contract under New York Law. Defendant United Staffing, Inc., is a staffing agency that recruits nurses and other professionals to provide healthcare services for its clients in the New York City area. Most of the nurses that United Staffing recruits from abroad are citizens of the Republic of the Philippines. Before beginning work in the United States, United Staffing required its foreign recruits to sign a standard, three-year employment contract with the company. Four provisions of the Nurse Plaintiffs' contracts are relevant to the instant motion. First, United Staffing's standard contract required nurses to work a minimum number of hours during the three-year period. Second, United Staffing's standard contract included a non-compete clause of striking breadth. Third, United Staffing agreed to pay "a salary or wage that complies with the laws, rules, regulations, and prevailing wages" applicable to the nurse's work location. Fourth, United Staffing's standard contract included a section entitled "Termination of Permanent Resident Card/Deportation." Beginning around the end of 2019, United Staffing substantially changed its standard employment contract for registered nurses. Among other things, its new contracts included a forum selection clause providing that all disputes -- other than a request for a temporary restraining order or a preliminary injunction -- will be resolved in an arbitration before the American Arbitration Association. United Staffing's new contracts also included a class action waiver provision. In their reply brief, the Nurse Plaintiffs represent that they do not seek to include in the certified class any nurses who signed a contract with United Staffing that contained a class action waiver and arbitration clause. The Nurse Plaintiffs and Plaintiff Ana Mervine Espinosa commenced the action on April 6, 2021. On Dec. 30, 2021, the Court issued a memorandum and order granting in part and denying in large part the Defendants' motion to dismiss. Based on the liquidated damages provision, non-compete clause, and immigration notification provision in United Staffing's standard contract, it concluded that the Nurse Plaintiffs stated plausible claims for violations of the TVPA, breach of contract, and a declaratory judgment. Although the Court concluded that Ms. Espinosa could not assert claims under Section 1589 of the TVPA, it found that Ms. Espinosa stated plausible claims for trafficking, conspiracy, and attempt under the TVPA, as well as for fraud and unjust enrichment under New York law. On Feb. 8, 2022, Magistrate Judge Kuo issued an order certifying the close of all discovery. On May 26, 2022, the Court will hold a pre-motion conference regarding the Plaintiffs' intended motion for summary judgment. In the meantime, the Nurse Plaintiffs' motion for class certification is fully briefed and ripe for decision. II. Discussion The Nurse Plaintiffs move to certify a class of all Filipino nurses who worked under United Staffing's standard employment contract at any time since April 5, 2011, i.e., a contract containing a liquidated damages provision, non-compete clause, immigration notification provision, and prevailing wage requirement. To certify a class action, the Nurse Plaintiffs must show that: (1) "the class is so numerous that joinder of all members is impracticable" (numerosity); (2) "there are questions of law or fact common to the class" (commonality); (3) "the claims or defenses of the representative parties are typical of the claims or defenses of the class" (typicality); and (4) "the representative parties will fairly and adequately protect the interests of the class" (adequacy). Judge Matsumoto finds that (i) the Defendants have not rebutted the presumption of numerosity, and the modest financial resources of the class members, along with their foreign citizenship, green card status, and potential language barriers, militate against separate lawsuits and instead weigh in favor of a finding of numerosity; (ii) the Nurse Plaintiffs' TVPA claims rest on a common contention: that the liquidated damages provision, non-compete clause, and immigration notification provision in United Staffing's standard contract collectively threaten serious harm and otherwise violate the TVPA; (iii) nurses' differing immigration statuses do not render the Nurse Plaintiffs' claims atypical; (iv) the Nurse Plaintiffs "meet the 'modest' requirement of being 'aware of the basic facts underlying the lawsuit,'" and that they are "unlikely 'to abdicate their obligations to fellow class members'"; and (v) the minor variations in the minimum number of hours do not materially affect the TVPA claims or the claims for declaratory and injunctive relief. To certify a class under Rule 23(b)(3), the Court must find that "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Judge Matsumoto holds that both criteria are satisfied in the case. She finds that (i) common questions predominate with respect to all of the Nurse Plaintiffs' claims; and (ii) a class action is "particularly desirable in the case, where it is likely the only device by which many of the proposed class members" -- who may have "limited resources" and lack "familiarity with the legal system" -- could obtain relief. In the alternative, Judge Matsumoto concludes that certification of the Nurse Plaintiffs' claims for declaratory and injunctive relief is appropriate pursuant to Rule 23(b)(2). She holds that even if certification were not appropriate under Rule 23(b)(3), she finds that certification of the claims for declaratory and injunctive relief is appropriate under Rule 23(b)(2) for all class members who worked for United Staffing in the past six years. Based on the terms of United Staffing's standard contract, the claims for declaratory and injunctive relief "apply generally to the class," Fed. R. Civ. P. 23(b)(2), and would result in classwide relief if the Nurse Plaintiffs ultimately prevail. And, given the six-year statute of limitations applicable to breach of contract actions in New York, however, see C.P.L.R. Section 213(2), any nurse who worked for United Staffing in the past six years pursuant to its standard contract containing the provisions challenged here would benefit from classwide relief. The Nurse Plaintiffs' counsel, Mr. John J.P. Hawley, Esq. and Mr. Leandro B. Lachica, Esq., also move to be appointed as co-lead class counsel. Judge Matsumoto finds that the Nurse Plaintiffs' counsel are exceedingly qualified applicants to represent the class under Rule 23. III. Conclusion For the foregoing reasons, the Nurse Plaintiffs' motion for class certification is granted. Judge Matsumoto certifies a class of all Filipino nurses who were employed by the Defendants at any time since April 5, 2011 pursuant to an employment contract containing a liquidated damages provision, non-compete clause, immigration notification provision, and a prevailing wage requirement. The Nurse Plaintiffs' counsel, Mr. John J.P. Hawley, Esq. and Mr. Leandro B. Lachica, Esq., are appointed as the co-lead class counsel pursuant to Rule 23(g). A full-text copy of the Court's May 25, 2022 Memorandum & Order is available at https://tinyurl.com/5k692ndw from Leagle.com. US BANK: Melnick's Bid to Certify Class Denied as Premature ----------------------------------------------------------- In the class action lawsuit captioned as HUNTER ADAM MELNICK, v. US BANK NATIONAL ASSOCIATION, Case No. 1:21-cv-03112-CMA-KLM (D. Colo.), the Hon. Judge Kristen L. Mix entered an order: 1. denying without prejudice Plaintiff's motion to amend; 2. granting the U.S. Bank's motion to stay, where all proceedings and discovery in this case are stayed pending resolution of the Motion to Dismiss; 3. denying without prejudice the Plaintiff's First, Second, and Third Motions for Subpoena in light of the stay of discovery; 4. denying as premature the Plaintiff's motion to certify class; and 5. granting the Plaintiff's motion for status. US Bank NA operates as a bank. A copy of the Court's order dated May 24, 2022 is available from PacerMonitor.com at https://bit.ly/3x6gEDw at no extra charge.[CC] VENUS CONCEPT: Settlement in Wong Securities Suit Wins Final Nod ----------------------------------------------------------------- Venus Concept Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that a class action complaint settlement in the Federal Actions was granted final approval. A putative shareholder class action complaint filed against its affiliate Restoration Robotics, Inc., certain of its former officers and directors, certain of its venture capital investors and the underwriters of the initial public offering (IPO) captioned "Wong v. Restoration Robotics, Inc., et al.," Case No. 18CIV02609, and "Li v. Restoration Robotics, Inc., et al.," No. 19CIV08173 was filed in the Superior Court of the State of California, County of San Mateo, and assert claims under Sections 11, 12(a)(2) and 15 of the Securities Act. The complaint alleged that the Restoration Robotics' Registration Statement filed with the SEC on September 1, 2017 and the Prospectus filed with the SEC on October 13, 2017 in connection with Restoration Robotics' IPO were inaccurate and misleading, contained untrue statements of material facts, omitted to state other facts necessary to make the statements made not misleading and omitted to state material facts required to be stated therein. The complaint sought unspecified monetary damages, other equitable relief and attorneys' fees and costs. A settlement in the Federal Actions was granted final approval in the District Court on September 9, 2021. Venus Concept Inc. global medical technology company based in Ontario. VENUS CONCEPT: Court Approves Li Securities Suit Settlement ----------------------------------------------------------- Venus Concept Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that a class action complaint settlement in the Federal Actions was granted final approval. A putative shareholder class action complaint filed against its affiliate Restoration Robotics, Inc., certain of its former officers and directors, certain of its venture capital investors and the underwriters of the initial public offering (IPO) captioned "Li v. Restoration Robotics, Inc., et al.," Case No. 19CIV08173, was filed in the Superior Court of the State of California, County of San Mateo, and assert claims under Sections 11, 12(a)(2) and 15 of the Securities Act. The complaint alleges, among other things, that the Restoration Robotics' Registration Statement filed with the SEC on September 1, 2017 and the Prospectus filed with the SEC on October 13, 2017 in connection with Restoration Robotics' IPO were inaccurate and misleading, contained untrue statements of material facts, omitted to state other facts necessary to make the statements made not misleading and omitted to state material facts required to be stated therein. The complaints sought unspecified monetary damages, other equitable relief and attorneys' fees and costs. A settlement in the Federal Actions was granted final approval in the District Court on September 9, 2021. Venus Concept Inc. global medical technology company based in Ontario. VENUS CONCEPT: Settlement in Guerrini Securities Suit Wins Final OK ------------------------------------------------------------------- Venus Concept Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that a class action complaint settlement in the Federal Actions was granted final approval. A putative shareholder class action complaint filed against its affiliate Restoration Robotics, Inc., certain of its former officers and directors, certain of its venture capital investors and the underwriters of the initial public offering (IPO) captioned "Guerrini v. Restoration Robotics, Inc., et al.," Case No. 5:18-cv-03712-EJD, in the United States District Court for the Northern District of California and assert claims under Sections 11 and 15 of the Securities Act. The complaint alleges, among other things, that the Restoration Robotics' Registration Statement filed with the SEC on September 1, 2017 and the Prospectus filed with the SEC on October 13, 2017 in connection with Restoration Robotics' IPO were inaccurate and misleading, contained untrue statements of material facts, omitted to state other facts necessary to make the statements made not misleading and omitted to state material facts required to be stated therein. The complaint sought unspecified monetary damages, other equitable relief and attorneys' fees and costs. A settlement in the Federal Actions was granted final approval in the District Court on September 9, 2021. Venus Concept Inc. global medical technology company based in Ontario. VENUS CONCEPT: Settlement in Yzeiraj Suit Gets Final Approval ------------------------------------------------------------- Venus Concept Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that a class action complaint settlement in the Federal Actions was granted final approval. A putative shareholder class action complaint filed against its affiliate Restoration Robotics, Inc., certain of its former officers and directors, certain of its venture capital investors and the underwriters of the initial public offering (IPO) captioned "Yzeiraj v. Restoration Robotics, Inc., et al.," No. 5:18-cv-03883-BLF in the United States District Court for the Northern District of California and assert claims under Sections 11 and 15 of the 1933 Act. The complaint alleges, among other things, that the Restoration Robotics' Registration Statement filed with the SEC on September 1, 2017 and the Prospectus filed with the SEC on October 13, 2017 in connection with Restoration Robotics' IPO were inaccurate and misleading, contained untrue statements of material facts, omitted to state other facts necessary to make the statements made not misleading and omitted to state material facts required to be stated therein. The complaint sought unspecified monetary damages, other equitable relief and attorneys' fees and costs. A settlement in the Federal Actions was granted final approval in the District Court on September 9, 2021. Venus Concept Inc. global medical technology company based in Ontario. VVF INTERVEST: Extension to File Conditional Cert Reply Sought -------------------------------------------------------------- In the class action lawsuit captioned as MARLON ROBERTSON, individually, and on behalf of all others similarly situated, v. VVF INTERVEST, LLC, VVF KANSAS, LLC, & VVF KANSAS SERVICES, LLC, Case No. 2:21-cv-02507-EFM-KGG (D. Kan.), the Parties seek to extend the deadline for the Plaintiff to Reply to Defendants Memorandum in Opposition to Plaintiffs Motion for Fair Labor Standards Act (FLSA) Conditional Certification, to July 8, 2022. On March 10, 2022, the Plaintiff filed Motion for FLSA Conditional Certification Pursuant to 29 U.S.C. section 216(b). On April 14, 2022, the Defendants filed their Memorandum in Opposition to Plaintiffs Motion for FLSA Conditional Certification Pursuant to 29 U.S.C. section 216(b) (Doc. 20). On May 4, 2022, the Court granted the Parties' Joint Motion for Extension of Time to File Reply and extended the time of Plaintiff to file his Reply to May 24, 2022. On May 16, 2022, Magistrate Judge Gale granted the Parties Joint Motion for Extension of Report Deadline and reset the Scheduling Conference from May 24, 2022 to June 21, 2022 to allow the Parties additional time to reach a Stipulation. Founded in 2007, VVF is a contract manufacturer of bar soap and antiperspirant. A copy of the Parties' motion dated May 23, 2022 is available from PacerMonitor.com at https://bit.ly/3N5uoFn at no extra charge.[CC] The Plaintiff is represented by: Matthew E. Osman, Esq. David S. Kim, Esq. OSMAN & SMAY LLC 7111 W. 151 st St., #316 Overland Park, KS 66223 Telephone: (913) 667-9243 Facsimile: (866) 470-9243 E-mail: mosman@workerwagerights.com dkim@workerwagerights.com - and - Patricia A. Konopka, Esq. Emily N. K. Monroe, Esq. STINSON LLP 1201 Walnut Street, Suite 2900 Kansas City, MO 64106-2150 Telephone: (816) 842-8600 Facsimile: (816) 691-3495 E-mail: pat.konopka@stinson.com emily.monroe@stinson.com WAKEFIELD & ASSOCIATES: Getchel Has Until June 8 to File Response ----------------------------------------------------------------- In the class action lawsuit captioned as Getchel v. Wakefield and Associates, Inc., Case No. 2:21-cv-02436 (W.D. Tenn.), the Hon. Judge Mark S. Norris entered an order granting the plaintiff's first motion for an extension of time to file a response to defendant's motion to stay class certification. The Plaintiff shall have up to and including June 8, 2022 to file her response, says Judge Norris. The suit alleges violation of the Fair Debt Collection Practices Act. Wakefield is a debt collection agency.[CC] WALMART INC: Lebby's Time to File Class Cert Extended to Sept. 16 ----------------------------------------------------------------- In the class action lawsuit captioned as DANIEL LEBBY, on behalf of himself and others similarly situated, v. WALMART INC., Case No. 3:21-cv-01365-RDM (M.D. Pa.), the Hon. Judge Robert D. Mariani entered an order that the Plaintiffs' unopposed motion for extension of the class certification motion deadline. The Plaintiffs' time to move for class certification is extended to September 16, 2022. Walmart is an American multinational retail corporation that operates a chain of hypermarkets, discount department stores, and grocery stores from the United States, headquartered in Bentonville, Arkansas. A copy of the Court's order dated May 23, 2022 is available from PacerMonitor.com at https://bit.ly/3N2OFeS at no extra charge.[CC] WEWORK INC: Faces Carter Suit Over Breach of Fiduciary Duties ------------------------------------------------------------- Wework Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that its former CEO, Adam Neumann is facing a shareholder class action captioned "Carter v. Neumann, et al." in the Superior Court for the State of California, County of San Francisco, Case No. CGC-19-580474, filed January 10, 2020. Said complaint alleges, among other things, that defendants breached fiduciary duties and/or aided and abetted breaches of fiduciary duties in connection with certain transactions. The complaints seek injunctive relief and damages. In both actions, the company filed motions to compel arbitration and stay the actions, or to enforce the company's Delaware forum selection bylaw and dismiss or stay the actions. In August 31, 2020, the trial court granted the motions to compel arbitration and the motion to enforce the forum selection bylaw. In October 30, 2020, the plaintiff filed petitions for writs of mandate seeking to overturn the court's orders compelling arbitration. In December 3, 2020, the California Court of Appeal denied those petitions. Also on October 30, 2020, the second plaintiff in Carter case appealed the trial court's decision enforcing the forum selection bylaw. In November 16, 2021, the California Court of Appeal affirmed the trial court's decision enforcing the forum selection bylaw. In December 23, 2021, the second Carter plaintiff filed a petition to review the Court of Appeal's decision in the California Supreme Court. In March 9, 2022, the California Supreme Court denied this petition. The company is currently litigating the Carter claims in private arbitration. WeWork is a workspace provider based in New York. WEWORK INC: Won Shareholder Suit in California Court Ongoing ------------------------------------------------------------ Wework Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that its former CEO, Adam Neumann is facing a shareholder class action captioned "Won v. Neumann, et al." (Superior Court for the State of California, County of San Francisco, No. CGC-19-581021, filed November 25, 2019). Said complaint alleges, among other things, that defendants breached fiduciary duties and/or aided and abetted breaches of fiduciary duties in connection with certain transactions. The complaints seek injunctive relief and damages. In both actions, the company filed motions to compel arbitration and stay the actions, or to enforce the company's Delaware forum selection bylaw and dismiss or stay the actions. In August 31, 2020, the trial court granted the motions to compel arbitration and the motion to enforce the forum selection bylaw. In October 30, 2020, Won filed petitions for writs of mandate seeking to overturn the court's orders compelling arbitration. In December 3, 2020, the California Court of Appeal denied those petitions. In November 16, 2021, the California Court of Appeal affirmed the trial court's decision enforcing the forum selection bylaw. The company is litigating Won's claims in private arbitrations. WeWork is a workspace provider based in New York. WISCONSIN: Court Dismisses Carr, Fessahaye and Moon From Lewis Suit ------------------------------------------------------------------- In the case, JAMES ARNOLD LEWIS, Plaintiff v. NURSE YORK, RANDALL HEPP, JOE FALKE, KEVIN CARR, MAKDA FESSAHAYE, NURSE DOE, DOE, Health Services Manager, and MOON, Complaint Examiner ICE, Defendants, Case No. 21-cv-232-pp (E.D. Wis.), Judge Pamela Pepper of the U.S. District Court for the Eastern District of Wisconsin grants the Plaintiff's motion for leave to proceed without prepaying the filing fee and dismisses Defendants Carr, Fessahaye and Moon. I. Background Mr. Lewis, who is confined at the Kettle Moraine Correctional Institution and is representing himself, filed a complaint under 42 U.S.C. Section 1983, alleging that the Defendants violated his constitutional rights. II. Discussion A. Motion for Leave to Proceed without Prepaying the Filing Fee The Prison Litigation Reform Act (PLRA) applies to the case because the Plaintiff was incarcerated when he filed his complaint. The PLRA allows the court to let an incarcerated plaintiff proceed with his case without prepaying the civil case filing fee. When funds exist, the plaintiff must pay an initial partial filing fee. He then must pay the balance of the $350 filing fee over time, through deductions from his prisoner account. On March 8, 2021, the Court ordered the Plaintiff to pay an initial partial filing fee of $25.52. The Court received that fee on March 26, 2021. Judge Pepper grants the Plaintiff's motion for leave to proceed without prepaying the filing fee and requires him to pay the remainder of the fee over time in the manner explained in her Order. B. Screening the Complaint During the events described in the complaint, the Plaintiff was confined at the Waupun Correctional Institution; he says that he was placed in temporary lock up status in the segregation building on Sept. 22, 2020. He alleges that on Oct. 13, 2020, he received a memo from Defendant Warden Hepp regarding identified positive cases of COVID-19 among the population. The next day, Waupun staff allegedly moved the Plaintiff from TLU to a general population cell in the Northwest cell hall. The Plaintiff alleges that six days later, or on Oct. 20, 2020, he and his new cellmate were tested for COVID-19. The Plaintiff alleges that Hepp, Falke, defendant Kevin Carr, the Secretary of the Wisconsin Department of Corrections, and Defendant Makda Fessahaye, the Administrator of Wisconsin Division of Adult Institutions, knew of a prior COVID-19 outbreak at Waupun in May 2020, yet they failed to plan and prepare for the possibility of another outbreak. He claims that because the institution had been on lock-down the week before he was moved into general population from TLU, there was a possibility that his new cellmate could have been positive for COVID-19 before the Plaintiff was moved into the cell, because 397 incarcerated persons and 32 staff had tested positive. He asserts that Hepp, Falke, Carr and Fessahaye knew about the importance of isolating inmates who had tested positive from those who had tested negative, yet they failed to keep those inmates separated or to come up with and implement an adequate plan that would keep those who had tested positive from those who had not. The Plaintiff alleges that Defendant Moon, the institution complaint examiner, recommended dismissal of his offender complaint alleging that he had been housed with an inmate who tested positive for COVID-19. He says that if Moon had contacted the CDC, DHS or the Plaintiff's primary care provider, she would have known that his placement in a cell with a COVID-19 positive individual placed the Plaintiff at serious risk for infection. He says that the recommendation to dismiss his offender complaint caused him to spend an extra day in a cell with COVID-19 inmate. The Plaintiff claims that the Defendants showed deliberate indifference when they left him housed with his cellmate for several days after the cellmate's test results came back positive for COVID-19, even after the Plaintiff informed them that he had a compromised immune system. He also claims that the defendants showed deliberate indifference when the Plaintiff was moved from TLU to the general population without first testing inmates for COVID-19, when they knew there was an outbreak in the general population. Finally, the Plaintiff claims that the defendants showed deliberate indifference to other inmates who tested negative but were forced to be housed with COVID-19 positive inmates and asserts that his complaint should be accepted as a class action suit. For relief, the Plaintiff seeks monetary damages as well as a permanent injunction preventing Waupun from housing inmates who test positive for COVID-19 with those who have tested negative and/or whose results are pending. Judge Pepper finds that the Plaintiff may proceed on an Eighth Amendment deliberate indifference claim against Defendants Nurse York, Randall Hepp, Joe Falke, Nurse Doe and Doe HSM/HSU Manager, based on allegations that the Plaintiff has a compromised immune system and the Defendants failed to move him from his cell after his cellmate tested positive for COVID-19. After the named Defendants file a responsive pleading to the complaint, the Plaintiff may use discovery to identify the Doe defendants. III. Conclusion Judge Pepper grants the Plaintiff's motion for leave to proceed without prepaying the filing fee. She dismisses Defendants Carr, Fessahaye and Moon. Under an informal service agreement between the Wisconsin Department of Justice and the Court, the Court will electronically transmit a copy of the complaint and the Order to the Wisconsin Department of Justice for service on defendants York, Hepp and Falke. Under the informal service agreement, Judge Pepper orders those Defendants to file a responsive pleading to the complaint within 60 days. Judge Pepper orders that the agency that has custody of the Plaintiff must collect from his institution trust account the $46.23 balance of the filing fee by collecting monthly payments from the Plaintiff's prison trust account in an amount equal to 20% of the preceding month's income credited to his trust account and forwarding payments to the clerk of court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. Section 1915(b)(2). The agency must clearly identify the payments by the case name and number. If the Plaintiff transfers to another county, state or federal institution, the transferring institution must forward a copy of the Order, along with the Plaintiff's remaining balance, to the receiving institution. The Court will send a copy of the Order to Warden at Kettle Moraine Correctional Institution. Judge Pepper orders that the parties may not begin discovery until after the Court enters a scheduling order setting deadlines for completing discovery and filing dispositive motions. Judge Pepper orders those Plaintiffs who are in custody at Prisoner E-Filing Program institutions to submit all correspondence and case filings to institution staff, who will scan and e-mail documents to the Court. The Plaintiffs who are in custody at all other prison facilities must submit the original document for each filing to the court to the following address: Office of the Clerk United States District Court Eastern District of Wisconsin 362 United States Courthouse 517 E. Wisconsin Avenue Milwaukee, Wisconsin 53202 Judge Pepper advises the Plaintiff that if he fails to file documents or take other required actions by the deadlines the Court sets, it may dismiss the case based on his failure to diligently pursue it. The parties must notify the Clerk of Court of any change of address. Judge Pepper advises the Plaintiff that it is his responsibility to promptly notify the Court if he is released from custody or transferred to a different institution. The Plaintiff's failure to keep the Court advised of his address may result in the Court dismissing the case without further notice. The Court will include a guide prepared by court staff to address common questions that arise in cases filed by prisoners. Entitled "Answers to Prisoner Litigants' Common Questions," this guide contains information that the Plaintiff may find useful in prosecuting his case. A full-text copy of the Court's May 24, 2022 Order is available at https://tinyurl.com/yc8m7pjj from Leagle.com. WYZE LABS: Quevedo Suit Alleges Unsolicited Telemarketing Calls --------------------------------------------------------------- EDUARDO QUEVEDO, individually and on behalf of all others similarly situated, Plaintiff v. WYZE LABS, INC., Defendant, Case No. 1:22-cv-21658 (S.D. Fla., May 30, 2022) is a class action against the Defendant of the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act. According to the complaint, the Defendant has sent telephonic calls to the Plaintiff and similarly situated consumers in an attempt to promote its goods and services without obtaining their prior express written consent. As a result of the Defendant's misconduct, the Plaintiff and Class members suffered harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy, says the suit. Wyze Labs, Inc. is a company that specializes in smart home products and wireless cameras based in Seattle, Washington. [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 – Jibrael S. Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Ft. Lauderdale, FL 33301 ZYMERGEN INC: Faces Shankar Securities Suit in CA Court -------------------------------------------------------- Zymergen Inc. disclosed in its Form 10-Q Report for the quarterly period ended March 31, 2022, filed with the Securities and Exchange Commission on May 12, 2022, that the company was named as a defendant in a class action lawsuit alleging violations of the Securities Act of 1933. In August 4, 2021, a putative securities class action was filed on behalf of purchasers of the Company's common stock pursuant to or traceable to the registration statement for its IPO. The action is pending in the United States District Court for the Northern District of California, and is captioned "Shankar v. Zymergen Inc. et al.," Case No. 3:21-cv-06028-JCS. The action alleges violations of Sections 11 and 15 of the Securities Act of 1933, as amended, in connection with the Company's IPO, names the Company, certain of its current and former officers and directors, its IPO underwriters, and certain stockholders as defendants and seeks damages in an unspecified amount, attorneys' fees, and other remedies. Zymergen Inc. designs, develops and commercializes microbes, molecules, and materials for diverse end markets based in California. ********* 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 ***