/raid1/www/Hosts/bankrupt/CAR_Public/220726.mbx               C L A S S   A C T I O N   R E P O R T E R

              Tuesday, July 26, 2022, Vol. 24, No. 142

                            Headlines

24 CAPITAL: 6th Cir. Affirms Dismissal of Peters Broadcast Suit
ADKIN'S BLUE: Parties File Joint Bid for Conditional Class Cert.
ALANI NUTRITION: Bid to Strike Class Allegations Partly Granted
ALBERTSONS LLC: Case Management Order Entered in Giulivo Suit
ALLEN COUNTY, IN: Bid for Summary Judgment in Eguia v. Jail Denied

ALLIANCE COAL: Bids for Discovery in Branson Suit Granted in Part
AMAZON.COM INC: Rittmann Class Status Bid Denied w/o Prejudice
AMAZON.COM: Seeks Relief from Deadline to Reply on Class Cert Bid
AMERICAN LANDMARK: Diez Seeks Extension of Class Cert Deadline
APP OF NEW MEXICO: Remand of Lax Class Suit to State Court Affirmed

APPLE INC: Extension of Deadline to File Class Cert. Sought
AUTO-OWNERS INSURANCE: Bid to Certify Class in Mason's Suit Granted
BEACH BOYS: Conditional Cert. of FLSA Collective Action OK'd
BELFOR USA: Case Management Order Entered in Rodriguez Suit
BELLEVILLE, IL: Denial of Bid to Certify Dewalt's Class Reversed

BIG EASY: Asks More Time to Respond to Rule 23 Class Cert. Bid
BIG EASY: Opposition to Class Cert Bid Extended to August 8
BOSWORTH COMPANY: Dickson Files 3rd Supplement to Class Cert Bid
BP EXPLORATION: Cook's Expert Testimony Excluded From Favorite Suit
BP EXPLORATION: Cook's Expert Testimony Excluded From Ward Suit

BP EXPLORATION: Court Excludes Cook's Testimony From Harris Suit
BP EXPLORATION: In Barksdale Suit, Court Excludes Cook Testimony
BP EXPLORATION: In Catchings Suit, Court Excludes Cook Testimony
BP EXPLORATION: In Fountain Suit, Court Excludes Cook's Testimony
CALIFORNIA TRANSIT: Denial of Arbitration in Evenskaas Suit Flipped

CASELLA WASTE: Bid to Dismiss Rodney's First Amended Suit Granted
CASINO QUEEN: Bids to Amend Scheduling Order in Hensiek Suit Denied
COLORADO: Seeks Extension of Time to Respond to Class Cert Bid
CREDIT SUISSE: Scheduling Order Entered in Antitrust Litigation
DAYBREAK SOLAR: Cunningham Suit Moved to Northern District of Texas

DETROIT EDISON: Settlement Deal OK'd in Nolan Suit
DGS CONSTRUCTION: Md. App. Flips Judgments in Amaya & Rojas Suits
ESTENSON LOGISTICS: Class Cert. Deadline Continued to Dec. 13
FIRST ORDER: Seeks to Stay Peacock Bid for Conditional Cert
FIRST ORDER: Suit Seeks Conditional Cert. of FLSA Collective

FORLINI'S RESTAURANT: Barrera Seeks Conditional Cert of Collective
GBM GLOBAL: Court Confirms Arbitration Award in 91 Individuals Suit
GEORGIA: Summary Judgment in Fincher v. Corrections Dep't. Affirmed
GERBER PRODUCTS: Scheduling Order Entered in Keeter Class Suit
GROUP HEALTH: Order Modifying Class Cert. Schedule Entered

HARBOURSIDE FUNDING: Seeks to Decertify Class in Peng Suit
HELLO PRODUCTS: Offers $1.4M to Fix False Advertising Suit
HOME DEPOT: Court Modifies Scheduling Order Entered in Patton
HYATT CORP: Discovery in Insixiengmay Suit to Continue on Oct. 3
HYUNDAI MOTOR: Filing for Prelim OK of Settlement Extended

IRONNET INC: Lead Plaintiff & Lead Counsel Named in Securities Suit
JOHN HEATH: Seeks Leave to File Certain Exhibits Under Seal
KELLOGG SALES: S.D. New York Grants Bid to Dismiss Russett Suit
KEURIG GREEN: Class Action Settlement in Smith Gets Initial Nod
KNIGHTSBRIDGE MANAGEMENT: Conditional Certification Bid Filed

KOCH FOODS: To Settle Broiler Chickens Antitrust Action for $15.5M
LANDMARK REALTY: Court Tosses Cheatem Bid for Class Certification
LEE HECHT: Final Approval of Class Action Settlement Sought
MADISON AVENUE: Conditional Class Certification Granted in Part
MATRIX ABSENCE: Weeks, et al., Seek to Certify Class of Examiners

MHC HERITAGE: Denial of Evidence Preclusion in Noel Suit Endorsed
MIKE PIMPINELLI: Wilcox Class Cert. Bids Denied w/o Prejudice
MINNEAPOLIS, MN: Lowry Suit Remanded to Hennepin County State Court
NATIONAL PACKAGING: Settlement Gets Final Approval in Guzman
NATIONSTAR MORTGAGE: Appeals Remand Ruling in Kushner Suit

NEW YORK UNIVERSITY: De Leon Seeks Reconsideration of June 22 Order
NEW YORK, NY: $2.6-Mil. in Attorneys' Fees Awarded in Grottano Suit
NEXTEP INC: Loomis, et al., Seek Initial OK of Settlement Deal
NORTHWEST MOTORSPORT: Class Cert. Schedule Amended in Villafan
PARAMOUNT RESIDENTIAL: Discovery on Class Cert Issues Due August 19

PAYPAL INC: Bids to File Friends' Second Amended Complaint Denied
PHILADELPHIA INDEMNITY: Wins Judgment on Pleadings Bid in Kenney
PHILLIPS & COHEN: Scheduling Order Entered in Floyd Walker Suit
PPG EMPLOYEE: 4th Cir. Vacates Vesting Claim Award in Bellon Suit
PROGRESSIVE UNIVERSAL: Scheduling Order Entered in Kroeger Suit

REBELZ CLUB: Court Conditionally Certifies Class in Harris Suit
REBELZ CLUB: Pennsylvania Court Denies Bid to Dismiss Harris Suit
RED WING: Fla. Dist. App. Affirms Dismissal of Southam FACTA Suit
REHAB SYNERGIES: Appeals Final Judgment in Loy Labor Class Action
SAFELITE FULFILLMENT: Order on Class Cert-Related Dates Entered

SAN FRANCISCO HEALTH: Court Narrows Labor Claims in Johnson Suit
SCRANTON SCHOOL DISTRICT: O'Donnell May Amend Complaint in 30 Days
SCRANTON SCHOOL DISTRICT: O'Donnell Suit Dismissed W/o Prejudice
SEALED AIR: Court Amends Scheduling Order in UA Local Class Suit
SEGA OF AMERICA: Muto Appeals Rigged Arcade Machine Case Dismissal

SHARED IMAGING: Class Cert Hearing Bid Set for August 19
SONAM'S STONEWALLS: First Cir. Affirms Verdict Finding for Gonpo
SONY INTERACTIVE: Court Dismisses Caccuri Suit With Leave to Amend
SPRINGFIELD, MA: Class Status Bid in Firefighters' Bias Suit Nixed
SUFFOLK UNIVERSITY: Rest of Judgment Bid in Refund Suit Denied

SUTTER VALLEY: Ward's Bids to Certify Class Denied W/o Prejudice
TD BANK: Amended Scheduling Order Entered in Jimenez Class Suit
TJ INSPECTION: Bid for Collective Action Notice Filed
TOMTOM NORTH: Court Dismisses Amended McVetty Suit With Prejudice
UNIVERSITY OF MARYLAND: Bid to Dismiss Moler ERISA Suit Denied

UNIVERSITY OF MARYLAND: Court Strikes Exhibits in Moler Suit
VERIZON WIRELESS: Corsi et al. Sue Over Undisclosed Charges
WALMART STORES: Lisowski Suit Dismissal With Prejudice Affirmed
WELLS FARGO: District Court Grants Bid to Dismiss Hudson Class Suit
WEXFORD HEALTH: Parties Seek to Defer Ruling on Time Extension Bid


                            *********

24 CAPITAL: 6th Cir. Affirms Dismissal of Peters Broadcast Suit
---------------------------------------------------------------
In the case, PETERS BROADCAST ENGINEERING, INC.,
Plaintiff-Appellant v. 24 CAPITAL, LLC; JASON SANKOV; JOHN DOES,
Defendants-Appellees, Case No. 21-3849 (6th Cir.), the U.S. Court
of Appeals for the Sixth Circuit affirms the district court's order
granting the Defendants' motion to dismiss for lack of personal
jurisdiction.

I. Introduction

A federal court is empowered to adjudicate the rights of the
parties before it -- with the salient constraint that it must have
personal jurisdiction over each party. After forming a contract, 24
Capital believed Peters Broadcast breached their agreement. 24
Capital received a judgment by confession in New York state court.

Then Peters Broadcast brought the suit in the Southern District of
Ohio, alleging that 24 Capital and its Operations Manager, Jason
Sankov, engaged in a scheme in violation of the Racketeer
Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.
Section 1962. The district court granted the Defendants' motion to
dismiss for lack of personal jurisdiction. Peters Broadcast
appeals, arguing the district court erred in interpreting the RICO
provision authorizing nationwide exercise of personal jurisdiction
in certain circumstances.

II. Background

Peters Broadcast sued 24 Capital and Jason Sankov, alleging RICO
violations and Ohio state law claims. Peters Broadcast is an
Indiana corporation with its principal place of business is in
Indiana. 24 Capital is a New York limited liability company with
its principal place of business in New York. Sankov resides in
Florida.

On Feb. 21, 2019, Peters Broadcast and 24 Capital entered a
contract titled "Merchant Agreement," in which 24 Capital agreed to
provide an advance to Peters Broadcast in exchange for assuming
interest in Peters Broadcast's future receivables. However, the
relationship between the parties devolved in the next three months.
Believing Peters Broadcast breached their agreement, 24 Capital
moved for judgment by confession in the Supreme Court of New York
for Putnam County, which was granted on May 21, 2019. Peters
Broadcast moved to vacate this judgment, but the motion was denied.
Thereafter, Peters Broadcast initiated the instant action, filing
its first complaint on June 19, 2020, and a second amended
complaint on April 7, 2021.

In its second amended complaint, Peters Broadcast alleged that 24
Capital, Jason Sankov, and other unnamed coconspirators engaged in
a "conspiracy to steal, thieve and purloin from unsuspecting
merchants" by targeting small merchants and inducing them to borrow
funds against receivables.

Peters Broadcast alleged that 24 Capital misrepresented the terms
of the Merchant Agreement by promising to recover payment only in
proportion to incoming receivables, while actually extracting daily
payments without regard to receivables; that 24 Capital promised
additional funding to borrowers, only to renege on the promised
funds and confess judgment against the borrowers; and that this was
not an isolated event, but rather part of an ongoing scheme in
which 24 Capital used "deceptive and misleading communications and
contracts" to force merchants "into cycles of debt in which they
were forced to incur new illegal loans in order to pay off their
existing debt to 24 Capital." It initiated the lawsuit with both
individual and class-wide claims against 24 Capital and Sankov.

The complaint characterizes the alleged scheme as racketeering
activity in violation of RICO, 18 U.S.C. Sections 1961-1968. For
Peters Broadcast's state-law claims, the asserted basis for
personal jurisdiction is pendent jurisdiction from the RICO claim.
Peters Broadcast alleged that each of its claims is appropriately
brought as a class action, with the class defined as "All borrowers
who received merchant cash advances and were advised the repayment
would be against receivables only."

Peters Broadcast filed an amended motion to certify a class on May
3, 2021. 24 Capital and Sankov filed a motion to dismiss the second
amended complaint on May 7, 2021, arguing the case should be
dismissed under Federal Rule of Civil Procedure 12(b)(2) for lack
of personal jurisdiction. The Defendants also raised defenses under
Federal Rules 12(b)(3) and 12(b)(6) of improper venue and failure
to state a claim upon which relief may be granted. The magistrate
judge1 granted 24 Capital and Sankov's motion to dismiss and denied
Peters Broadcast's motion to certify class as moot.

On appeal, Peters Broadcast argues the district court erred in
granting the motion to dismiss, asserting that the court
misconstrued 18 U.S.C. Section 1965 and incorrectly held it lacked
personal jurisdiction over the Defendants.

III. Discussion

A.

Peters Broadcast urges the court to adopt the minority approach,
arguing that Section 1965(d) authorizes personal jurisdiction via
nationwide service based on minimum contacts with the United
States.

The Sixth Circuit joins the Second, Third, Seventh, Ninth, Tenth,
and D.C. Circuits and hold that subsection (b) of Section 1965,
rather than subsection (d), gives RICO its nationwide
jurisdictional reach. Reading Section 1965(d) to allow service upon
anyone with "nationwide contacts" to sufficiently confer
jurisdiction would render Section 1965(b) superfluous. The
forum-state approach ensures that no subsection is redundant: It
allows the exercise of jurisdiction over nonresident defendants to
the extent due process and "the ends of justice" require only if
there is another defendant with minimum contacts in the forum.
Stating in conclusory terms that Section 1965(d) provides for
national service of process, without analyzing or mentioning its
relationship to Section 1965(b), is unconvincing.

The Sixth Circuit finds the reasoning of the forum-state approach
persuasive, with a few clarifications to ensure meaning is
conferred upon each subsection of the statute. First, we make clear
that Section 1965(a) provides for venue, not jurisdiction. Because
subsection (a) is not jurisdictional, another rule -- such as
Federal Rule of Civil Procedure 4(k)(1)(A) and the relevant state's
long-arm statute -- is required to establish personal jurisdiction
over an initial defendant. Then, Section 1965(b) extends personal
jurisdiction through nationwide service of process over "other
parties residing in any other district," as long as venue is proper
through (a) with that initial defendant and the "ends of justice"
require it.4 Section 1965(c) is not jurisdictional and simply
describes subpoena procedure. Similarly, Section 1965(d) is not
jurisdictional. Subsection (d) extends to "other process" that
differs from a summons or subpoena, such as notifying a party of an
injunction or an order committing a person for civil contempt of a
decree.

In urging the Sixth Circuit to adopt the minority approach, Peters
Broadcast argues the forum-state approach is wrong because it fails
to consider that "RICO must 'be liberally construed to effectuate
its remedial purposes.'" Although the majority approach does not
provide for absolute, nationwide personal jurisdiction over each
defendant in every civil RICO case, it ensures that there will be
at least one federal forum for all defendants in a single civil
RICO trial. The Sixth Circuit joins the majority of its sister
circuits in adopting the forum-state approach and holding that
Section 1965(b) governs service over out-of-district defendants.

B.

Having adopted the forum-state approach, the Sixth Circuit's next
relevant inquiry is whether Section 1965, as interpreted, conferred
personal jurisdiction over 24 Capital and Sankov. This requires at
least one defendant with traditional forum state contacts (the
defendant described by Section 1965(a) and reached by Rule
4(k)(1)(A)) such that any number of defendants from other districts
may be joined under Section 1965(b). Peters Broadcast bears the
initial burden to make a prima facie case for personal jurisdiction
by establishing that either 24 Capital or Sankov has minimum
contacts with Ohio.

Because Peters Broadcast did not specifically allege that 24
Capital or Jason Sankov has minimum contacts with Ohio, the forum
state, the Sixth Circuit affirms the district court's decision to
grant the motion to dismiss. Absent jurisdiction over one defendant
pursuant to 18 U.S.C. Section 1965(a) and Rule 4(k)(1)(A), no
jurisdiction exists under Section 1965(b). As the basis for Peters
Broadcast's accompanying state law claims was pendent jurisdiction,
the court necessarily lacks personal jurisdiction over 24 Capital
and Sankov for those claims.

C.

Finally, Peters Broadcast argues for the first time in its reply
brief that, in lieu of retaining jurisdiction, the district court
should have transferred the case to its "home district, the
Northern District of Indiana."

Even if considered, Peters Broadcast's argument that the district
court should have transferred the case to Indiana fails. Peters
Broadcast did not provide any allegations that the Defendants, 24
Capital or Jason Sankov, have minimum contacts with Indiana. The
Northern District of Indiana is in the Seventh Circuit, which
follows the forum-state approach. Pursuant to the forum-state
approach, Peters Broadcast may file its civil RICO action "in a
district court where personal jurisdiction can be established over
at least one defendant," and then "summonses can be served
nationwide on other defendants if required by the ends of
justice."

IV. Conclusion

The Sixth Circuit holds that 18 U.S.C. Section 1965(b) governs
service over out-of-district defendants. Under this forum-state
approach, Peters Broadcast did not establish personal jurisdiction
for its RICO claims or pendent state law claims. The Sixth Circuit
therefore affirms the district court's decision to grant 24 Capital
and Sankov's motion to dismiss and to deny Peters Broadcast's
motion to certify class as moot.

A full-text copy of the Court's July 13, 2022 Opinion is available
at https://tinyurl.com/nhjac9dn from Leagle.com.

ARGUED: Percy Squire, PERCY SQUIRE COMPANY LLC, in Columbus, Ohio,
for the Appellant.

Jared J. Lefevre -- jjlefevre@eastmansmith.com -- EASTMAN & SMITH
LTD., in Toledo, Ohio, for Appellees 24 Capital and Jason Sankov.

ON BRIEF: Percy Squire, PERCY SQUIRE COMPANY LLC, in Columbus,
Ohio, for the Appellant.

Jared J. Lefevre, EASTMAN & SMITH LTD., in Toledo, Ohio, for
Appellees 24 Capital and Jason Sankov.


ADKIN'S BLUE: Parties File Joint Bid for Conditional Class Cert.
----------------------------------------------------------------
In the class action lawsuit captioned as Juan and Delphina Luna, on
behalf of themselves and others similarly situated, v. Adkin's Blue
Ribbon Packing Company, Inc., Case No. 1:21-cv-00545-HYJ-RSK (W.D.
Mich.), the Parties file joint motion for conditional class
certification, preliminary approval of class action settlement,
approval of notice plan, and scheduling of final hearing.

The proposed Settlement would bind and resolve the claims of a
proposed class of:

   "All migrant and seasonal agricultural workers employed at
   Adkin Blue Ribbon Packing Company, Inc. to harvest
   blueberries in 2019."

Adkin's Blue provides farm services. The Company specializes in
packing the finest fresh and frozen blueberries.

A copy of the Parties' motion dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3Oms0dn at no extra charge.[CC]

The Plaintiff is represented by:

          Teresa Hendricks, Esq.
          Benjamin O'Hearn, Esq.
          Molly Spaak, Esq.
          Migrant Legal Aid
          1104 Fuller Ave. NE
          Grand Rapids, MI 49503-1371
          Telephone: (616) 454-5055
          E-mail: thendricks@migrantlegalaid.com
                  bohearn@migrantlegalaid.com
                  mspaak@migrantlegalaid.com

The Defendant is represented by:

          Brion B. Doyle, Esq.
          VARNUM LLP
          Bridgewater Place
          P.O. Box 352
          Grand Rapids, MI 49501-0352
          Telephone: (616) 336-6000
          E-mail: bbdoyle@varnumlaw.com

ALANI NUTRITION: Bid to Strike Class Allegations Partly Granted
---------------------------------------------------------------
In the class action lawsuit captioned as ANDRES VITIOSUS, et al.,
individually and on behalf of all others similarly situated, v.
ALANI NUTRITION, LLC, Case No. (), the Hon. Judge Michael M. Anello
entered an order granting in part defendant's motion to dismiss and
strike class allegations as follows:

In particular, the Court dismisses the Plaintiffs' sixth and
seventh causes of action with leave to amend. The Court dismisses
the Plaintiffs' claims to the extent they are premised upon
advertising they do not allege they saw with leave to amend. The
Court further dismisses the following without leave to amend:
Plaintiffs' request for injunctive relief; Plaintiffs' claims to
the extent they are premised upon the implied nutrient content
claim theory; Plaintiffs' claims to the extent they are based upon
weight loss and protein benefits beliefs; and Plaintiffs'
nationwide class allegations.

The Court's ruling as to the nationwide class allegations is
without prejudice to additional Plaintiff(s)  bringing claims, and
thus representing additional class(es), under the laws of their
respective states. The Court DENIES the remainder of Defendant's
motion.

If Plaintiffs wish to file a First Amended Complaint curing the
deficiencies noted herein, they must do so on or before July 25,
2022. Defendant must then respond within the time prescribed by
Rule 15, the Court says.

On December 8, 2021, Andres Vitiosus, Debra Foley, and Rachel
Lumbra filed a putative class action complaint against Defendant
Alani Nutrition, alleging violations of California and New York
consumer protection laws as well as claims for breach of express
warranty and unjust enrichment.

The Defendant is the manufacturer of FIT SNACKS Protein Bars.
Generally speaking, the Plaintiffs allege that Defendant misleads
consumers by representing that FIT Bars are healthy through its
labeling, packaging, and advertising. Specifically, the Plaintiffs
maintain they were misled when they observed the term "FIT" on the
wrapper of six FIT Bars flavors: (1) Munchies; (2) Peanut Butter
Crisp; (3) Blueberry Muffin; (4) Chocolate 8 Cake; (5) Confetti
Cake; and (6) Fruity Cereal.

According to Plaintiffs, FIT Bars are not healthy but instead are
high in fat and contain less than the daily value (DV) of Vitamin D
and potassium. The Plaintiffs also assert that the labeling "FIT"
violates the Food and Drug Administration's regulation and
therefore is misleading.

A copy of the Court's order dated July 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3RIU3qo at no extra charge.[CC]

ALBERTSONS LLC: Case Management Order Entered in Giulivo Suit
-------------------------------------------------------------
In the class action lawsuit captioned as Michael Giulivo v.
Albertsons LLC, et al., Case No. 2:22-cv-04163-SB-GJS (C.D. Cal.),
the Hon. Judge Stanley Blumenfeld, Jr. entered a case management
order as follows:

  -- Trial:                             July 10, 2023

  -- Pretrial Conference:               June 23, 2023

  -- Motion to Amend Pleadings/Add      September 16, 2022
     Parties (Hearing Deadline):

  -- Motion for Class Certification:    December 2, 2022

  -- Opposition to Motion for           December 16, 2022
     Class Certification:

  -- Reply Brief in Support of          December 23, 2022
     Class Certification:

  -- Motion for Class Certification     January 13, 2023
     Hearing:

  -- Discovery Deadline -- Nonexpert:   February 17, 2023

  -- Discovery Deadline – Expert:       March 17, 2023

  -- Initial Expert Disclosure:         February 3, 2023

  -- Rebuttal Expert Disclosure:        February 17, 2023

  -- Discovery Motion Hearing           March 17, 2023
     Deadline:

  -- Non-Discovery Motion Hearing       March 31, 2023
     Deadline

Albertsons is an American grocery company founded and headquartered
in Boise, Idaho.

A copy of the Court's order dated July 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3OnEq4x at no extra charge.[CC]

ALLEN COUNTY, IN: Bid for Summary Judgment in Eguia v. Jail Denied
------------------------------------------------------------------
In the case, ADRIAN EGUIA, Plaintiff v. SHERIFF OF ALLEN COUNTY,
IN, Defendant, Cause No. 1:22-CV-168-DRL-SLC (N.D. Ind.), Judge
Damon R. Leichty of the U.S. District Court for the Northern
District of Indiana, Fort Wayne Division, denies the Defendant's
motion for summary judgment.

Mr. Eguia, a prisoner without a lawyer, filed a complaint seeking
damages for alleged unconstitutional conditions of confinement at
the Allen County Jail. "A document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted
by lawyers." Under 28 U.S.C. Section 1915A, the Court must review
the merits of a prisoner complaint and dismiss it if the action is
frivolous or malicious, fails to state a claim upon which relief
may be granted, or seeks monetary relief against an immune
defendant.

The complaint stems from a class action lawsuit regarding the
conditions of confinement at the Allen County Jail -- Morris v.
Sheriff of Allen County, No. 1:20-CV-34-DRL, 2022 WL 971098 (N.D.
Ind. Mar. 31, 2022). In that case, the Court certified a class of
"all persons currently confined, or who would in the future be
confined, in the Allen County Jail" under Federal Rule of Civil
Procedure 23(b)(2) for injunctive and declaratory relief. It found
at summary judgment that certain conditions of confinement at the
jail violated the Eighth and Fourteenth Amendments to the
Constitution: "The overcrowding problem at the jail has deprived
this class of inmates 'the minimal civilized measure of life's
necessities.'" It also entered a permanent injunction to address
the overcrowding, lack of sufficient staffing and recreation, and
inadequate supervision of prisoners and continues to monitor the
remediation of the unconstitutional conditions.

Although Mr. Eguia is a member of the class in Morris, that class
action was for declaratory and injunctive relief only. This means
that to obtain damages Mr. Eguia must allege how he personally was
injured by any constitutional violation. Simply being in the
presence of unconstitutional conditions at the jail is not enough
to claim damages under 42 U.S.C. Section 1983, unless Mr. Eguia
himself was injured by the conditions. A necessary element of a
constitutional tort is "that the officer's act caused any injury."
"There is no tort -- common law, statutory, or constitutional --
without an injury, actual or at least probabilistic."

Turning to Mr. Eguia's complaint, Judge Leichty finds that it
repeats many of the problems identified in the class action.
Specifically, he complains that the jail is chronically overcrowded
and staffing is insufficient. Among his allegations, he says that
tension from overcrowding results in violence, inadequate staffing
causes delays in responding to emergencies, and there are not
enough beds so people are sleeping on the floor in almost every
cell. However, none of these general allegations are specific to
Mr. Eguia, so they cannot form the basis of a claim for damages.
Mr. Eguia specifically alleges that he has had to sleep on the
floor with his head near the toilet, even when it is in use. He
says he has not been to recreation in the two years he has been
detained or otherwise had the opportunity to exercise or work out.
Further, he claims that has not been to one religious service. Id.

Because Mr. Eguia was a pretrial detainee, his claims must be
assessed under the Fourteenth Amendment. "The Fourteenth
Amendment's Due Process Clause prohibits holding pretrial detainees
in conditions that 'amount to punishment.'" Beyond this, Judge
Leichty holds that a pretrial detainee must also plausibly allege a
defendant's "response was objectively unreasonable under the
circumstances" and that the defendant "acted purposely, knowingly,
or recklessly with respect to the consequences of his actions." "A
jail official's response to serious conditions of confinement is
objectively unreasonable when it is `not rationally related to a
legitimate nonpunitive governmental purpose' or is 'excessive in
relation to that purpose.'"

Mr. Eguia's allegations about how he was affected by the conditions
at the jail are insufficient to state a claim without additional
supporting details. Specifically, an allegation of sleeping on the
floor alone does not state a claim. Sleeping on the floor can
contribute to a denial of "the minimal civilized measure of life's
necessities," but the complaint lacks details about how it affected
Mr. Eguia personally.

Similarly, Mr. Eguia does not explain how the lack of exercise or
recreation has affected him. Lack of access to exercise may violate
the constitution in "extreme and prolonged situations where
movement is denied to the point that the inmate's health is
threatened." However, restrictions on recreation must be analyzed
in light of the other opportunities the inmates have for
out-of-cell activities. The complaint is silent on the details
surrounding Mr. Eguia's daily activities.

Similarly, Mr. Eguia has a right under the First Amendment and
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42
U.S.C. Section 2000cc-1, to practice his religion. But, he does not
say what his religion is or what steps he took in an attempt to
practice his religion. Without more, this claim cannot proceed.

The complaint does not state a claim for which relief can be
granted. Nevertheless, Mr. Eguia may file an amended complaint if
he believes he can state a claim based on (and consistent with) the
events described in this complaint because "the usual standard in
civil cases is to allow defective pleadings to be corrected,
especially in early stages, at least where amendment would not be
futile." To file an amended complaint, he needs to write this cause
number on a Pro Se 14 (INND Rev. 2/20) Prisoner Complaint form
which is available from his law library. After he properly
completes that form addressing the issues raised in the Order, he
needs to send it to the Court.

Additionally, Mr. Eguia filed a motion for summary judgment, asking
the Court to enter summary judgment in his favor on the basis of
the findings in the Morris class action. Until there is a complaint
that states a claim, Judge Leichty finds it too soon to determine
what preclusive effect the class action might have on an individual
suit for damages. The motion will be denied as premature.

For these reasons, Judge Leichty denies the motion for summary
judgment and grants Equia until Aug. 12, 2022, to file an amended
complaint. He cautions Eguia if he does not respond by the
deadline, the case will be dismissed under 28 U.S.C. Section 1915A
without further notice because the current complaint does not state
a claim for which relief can be granted.

A full-text copy of the Court's July 13, 2022 Opinion & Order is
available at https://tinyurl.com/ybvcbv3y from Leagle.com.


ALLIANCE COAL: Bids for Discovery in Branson Suit Granted in Part
-----------------------------------------------------------------
In the case, RANDY BRANSON; DANIEL CUNNINGHAM; and ALTON JOSEPH
NEWBERRY On Behalf of Themselves & All Others Similarly-Situated,
Plaintiffs v. ALLIANCE COAL, LLC; WEBSTER COUNTY COAL, LLC;
ALLIANCE RESOURCE PARTNERS, LP; ALLIANCE RESOURCE OPERATING
PARTNERS, LP; WARRIOR COAL, LLC; and RIVER VIEW COAL, LLC,
Defendants, Civil Action No. 4:19-CV-00155-JHM-HBB (W.D. Ky.),
Judge H. Brent Brennenstuhl of the U.S. District Court for the
Western District of Kentucky, Owensboro Division, issued a
Memorandum Opinion and Order granting in part and denying in part:

   a. the Defendants' motion to compel individualized discovery;
      and

   b. the Plaintiffs' motion to compel discovery.

I. Background

The case was brought as a collective action pursuant to the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. Section 201, et seq., and a
class action under the Kentucky Wages and Hours Act ("KWHA"). The
Plaintiffs allege the Defendants "systematically and willfully
failed to comply with the requirements of the FLSA and KWHA."
Following the filing of the Complaint, the Plaintiffs filed
numerous consent documents from employees of a subsidiary or
subsidiaries of the Defendants who wished opt into the case and
become Party-Plaintiffs.

Thereafter, the Plaintiffs filed a motion for conditional class
certification. On April 20, 2021, the District Judge entered a
Memorandum Opinion and Order which granted the Plaintiffs' motion
and "conditionally certified an FLSA collective action of all
individuals who worked as coal miners at the Dotiki,
Warrior/Cardinal, and River View mines after May 19, 2017 and elect
to opt into the action." The Court found the two-step certification
process discussed in Comer v. Wal-Mart Stores, Inc., 454 F.3d 544
(6th Cir. 2006), was better suited to allow the Court to determine
whether opt-in plaintiffs were "similarly situated."

First, the Plaintiffs were to make a modest showing that putative
class members are "similarly situated" to them. This step "screens
out obviously deficient claims." After discovery, "trial courts
examine more closely the question of whether particular members of
the class are, in fact, similarly situated," as the court would
then have "much more information on which to base its decision and,
as a result, it employs a stricter standard." Importantly, at this
stage, "certification is conditional and by no means final."

A month after the granting of conditional certification, the
District Judge approved the parties' agreed opt-in notice form for
distribution, approved the parties' agreed opt-in consent form,
directed the Defendants to deliver a list of all potential FLSA
collective members to the Plaintiffs, directed the dispersal of the
notice documents, and directed that those putative members had
sixty days from the date of the notice to join the case. The 60-day
period has expired, and a cumulative 526 individuals have opted-in
as Party Plaintiffs in the action.

After opt-in Plaintiffs were added, discovery was set to begin on
whether those that opted-in were "similarly situated" to the
Plaintiffs. Discovery disputes and issues, however, brewed among
the parties. In an attempt to quell the disputes, the undersigned
held a telephonic conference on Feb. 16, 2022. After speaking with
the parties, Brennenstuhl ordered the parties to provide a
collaborative document which set forth each discovery issue between
the parties and each parties' respective position on the issues.
This proved unfruitful, and the undersigned held a subsequent
telephonic conference on March 2, 2022. After speaking with the
parties, Judge Brennenstuhl ordered that, no later than April 1,
2022, the parties will file their respective motions to compel on
the three discovery issues previously raised.

The Order has led to the present motions.

II. Discussion

A. Defendant's Motion to Compel

The Defendants' motion plainly iterates several points requested
from the Court:

     (1) Authorize the Plaintiffs and Defendants to conduct
individualized discovery of all individuals who submit affidavits
or declarations in this case;

     (2) Authorize the Plaintiffs and the Defendants to conduct
statistically significant representative discovery regarding the
opt-in plaintiffs at each mine;

     (3) Allow the Defendants to serve written discovery on 50
opt-in plaintiffs at each mine to be randomly chosen using a
scientifically sound methodology by a statistician retained by
Defendants and in such a manner that allows the Plaintiffs
transparency into the selection process;

     (4) Allow the Defendants to conduct remote depositions, each
of which lasting no more than three hours, of 50 opt-in plaintiffs
at each mine, with 40 of the opt-in plaintiffs being randomly
chosen using a scientifically sound methodology by a statistician
retained by the Defendants and in such a manner that allows the
Plaintiffs transparency into the selection process, and with 10 of
the opt-in plaintiffs being chosen by Defendants; and

     (5) Allow the Defendants to seek leave from the Court to serve
additional written discovery and/or to conduct additional
depositions to the full number of opt-in plaintiffs constituting a
statistically significant representative sample at each mine if it
is determined that more information is needed.

For the first request, the Defendants state that the District Judge
relied upon ten individuals' declarations to grant conditional
certification and request the ability to conduct individualized
discovery and deposition discovery from them and from anyone else
who has or will submit affidavits or declarations on behalf of the
Plaintiffs.

As for the remaining points, the Defendants advocate against a
"simple comparative percentage analysis (e.g., 10% of the entire
class, etc.)" and instead seek a sample size of the Plaintiffs
which is more statistically significant. As a result, the
Defendants would be seeking discovery from 201 individuals. "In the
spirit of compromise and as a gesture of goodwill," they offer to
limit written discovery to 50 opt-in plaintiffs per mine, leading
to a cumulative 150 opt-in individuals. If an individual was not to
respond to the discovery requests, they argue that Rule 37 or Rule
41 measures to dismiss the individual from the suit should be
appropriate.

In contrast, the Plaintiffs seek "to limit the number of opt-ins
subject to discovery in this case to no more than 10% of the
collective and to make clear that opt-ins who do not respond to
discovery will not be subject to dismissal from the case." They
assert that "discovery should not be used as a tool to limit or
discourage participation in the opt-in class" and the Defendants'
attempts to seek "excessive and onerous written discovery" is an
attempt to reduce the size of the class. They wish for the
non-responsive respondent to be "skipped" and not be subject to
dismissal from the class; instead, they would be replaced with
another opt-in respondent.

Judge Brennenstuhl utilizes statistically significance when
determining the proper sample size for representative discovery,
but says, the sample size will be reduced from the size provided by
the Defendants. He finds that: (1) the parties will conduct
individualized discovery on all opt-in plaintiffs who submit
affidavits or declarations in the case, including written discovery
and/or depositions, and this individualized discovery will not be
included in the total number of opt-in plaintiffs; (2) written
discovery will be limited to randomly selected 100 opt-in
plaintiffs, not including those that submitted affidavits and/or
declarations (29 from Webster County Coal/Dotiki Mine; 36 from
Warrior/Cardinal Mine; and 35 from River View Mine); (3) of the 100
opt-in plaintiffs, 10 from each mine are to be randomly selected
for depositions; (4) depositions taken pursuant to this discovery
will be limited to 3 hours each; and (5) if an opt-in plaintiff is
non-responsive to the discovery requests, they are to be replaced
with another opt-in plaintiff who is randomly selected, and
Defendants may to move for dismissal of the FLSA claim by the
non-responsive opt-in plaintiff.

B. Plaintiffs' Motion to Compel

Related to the Defendants' motion above, the Plaintiffs filed a
motion to compel seeking discovery from the Defendants for "the
electronic payroll and timekeeping records and the Matrix Minor and
Equipment Tracking System records for all Opt-In Plaintiffs, in
addition to a 10% random sample of such Payroll/Timekeeping Records
of the Kentucky Class who are not Opt-In Plaintiffs at each mine."
In a later footnote, the Plaintiffs note that there are over 500
opt-in plaintiffs and "the potential Kentucky Class includes more
than 1,800 individuals."

Additionally, the Plaintiffs seek "disciplinary records relating to
attendance and/or tardiness, documents reflecting complaints about
work hours, documents reflecting any agreement or contract between
an Opt-In Plaintiff and a Defendant, sheets that record
'early-in/early out' entries, to the extent they exist for all
Opt-In Plaintiffs during the time period Nov. 2, 2014 to the
present." When paired with the Defendants' motion, the Plaintiffs
assert that "the Court should reject the Defendants' attempt to
condition and 'link' any such production on the Defendants'
purported right to take 'reciprocal' discovery from every member of
the potential class and collective."

The Defendants, in contrast to the Plaintiffs' arguments, propose
that the discovery obligations be reciprocal and reiterates a
stance for statistically significant representative sampling. They
categorize the Plaintiffs' view as "patently unfair" and an
unsupported "one-sided, inequitable discovery procedure."
Additionally, the Defendants argue that the Plaintiffs requests for
electronic timekeeping records, electronic paystubs, certain
personnel records, and the "Early In and Out Late" sheets "exceeds
the scope of Rule 26."

Judge Brennenstuhl finds that the discovery sought by the
Plaintiffs should be reciprocal to that which is provided to the
Defendants. Therefore, the Defendants will turn over the requested
discovery as it relates to the opt-in plaintiffs who have submitted
an affidavit and/or declaration, in addition to the 100 randomly
selected opt-in plaintiffs who will be subject to written
discovery, consistent with the Courts findings above. They,
however, are not required to turn over the requested discovery for
opt-in plaintiffs who are not subjected to the written discovery.
Moreover, to the extent the Plaintiffs are seeking documentation
related to nonopt-in persons, the Defendants are not required to
produce such documentation at this time.

If, after conducting the discovery of the representative sample,
either party can demonstrate to the Court that broader discovery is
appropriate and necessary, the parties can so move. If broader
discovery is granted for one party, the opposing party will also
receive reciprocal to the request -- e.g., if the Defendants seek
additional written discovery from other opt-in plaintiffs, and that
request is granted, the Defendants must then also produce the
requested discovery in Plaintiff's motion to compel for the opt-in
plaintiffs who are selected.

The parties are directed to meet and confer in order to pare down
the questionnaire at DN 263-1. They are to work together and create
a questionnaire that could be completed without the assistance of
the Plaintiffs' counsel or, at a minimum, reduced assistance by
counsel. After crafting a more suitable questionnaire, the parties
are to submit it to the Court for final review and approval before
being sent to the randomly selected opt-in plaintiffs. If no
acceptable questionnaire can be drafted, the parties may be
required to come before the Court in person and explain what is
preventing the amicable crafting of the questionnaire.

III. Conclusion

For the foregoing reasons, Judge Brennenstuhl grants in part and
denies in part the Defendants' motion to compel and the Plaintiffs'
motion to compel.

Individualized discovery will be conducted on all opt-in plaintiffs
who have submitted an affidavit or discovery, and their discovery
will not be counted in the total number of opt-in plaintiffs.
Written discovery will be conducted on 100 randomly selected opt-in
plaintiffs, consistent with the Court's findings. Depositions will
be conducted on 30 of the randomly selected opt-in plaintiffs,
consistent with the Court's findings.

The Defendants will provide the Plaintiffs with the documentation
requested in the motion to compel (DN 257), but only as to the
opt-in plaintiffs who are subject to discovery, whether they be
randomly selected or those that submitted an affidavit or
declaration. If, after conducting discovery pursuant to the Order,
either party can demonstrate to the Court that broader discovery is
appropriate and necessary, the party can so move

Judge Brennenstuhl directs the parties to confer to revise the
discovery questionnaire attached to the Defendants' reply
memorandum, consistent with the Court's findings.

A full-text copy of the Court's July 13, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/5n6e6tp4 from
Leagle.com.


AMAZON.COM INC: Rittmann Class Status Bid Denied w/o Prejudice
--------------------------------------------------------------
In the class action lawsuit captioned as Rittmann, et al., v.
Amazon.com Inc., et al., Case No. 2:16-cv-01554-JCC (W.D. Wash.),
the Hon. Judge John C. Coughenour entered an order denying the
Plaintiffs' first motion for class certification without prejudice
because this matter was subject to a stay.

While the Plaintiffs have also filed a motion to lift the stay, it
has not yet noted and, for the time being, the matter
remains stayed.

The Plaintiffs may again move for certification once the Court
lifts the stay. The Defendants' motion for relief from
the deadline to respond to Plaintiffs' motion is denied as moot.

Amazon.com, Inc. is an American multinational technology company
which focuses on e-commerce, cloud computing, digital streaming,
and artificial intelligence.

A copy of the Court's order dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3coijxK at no extra charge.[CC]

AMAZON.COM: Seeks Relief from Deadline to Reply on Class Cert Bid
-----------------------------------------------------------------
In the class action lawsuit captioned as BERNADEAN RITTMANN, et
al., v. AMAZON.COM, INC., et al., Case No. (), the the Defendants
seek relief from deadline to respond to the Rittmann plaintiffs'
motion for class certification.

The Rittmann Plaintiffs have filed a (second) class certification
motion, in direct violation of this Court's prior Order stating
that they could refile a motion for class certification only "once
this Court lifts the stay."

Although the Rittmann Plaintiffs have asked the Court to lift the
stay, the Court has not ruled on that request and Amazon’s
deadline to respond to that request has not even arrived. For
several reasons, Amazon respectfully submits that it should be 22
relieved of any deadline to respond to the Rittmann Plaintiffs'
pending Motion for Class Certification.

Amazon.com is an American multinational technology company which
focuses on e-commerce, cloud computing, digital streaming, and
artificial intelligence.

A copy of the Defendants' motion dated July 7, 2022 is available
from PacerMonitor.com at https://bit.ly/3oib3X4 at no extra
charge.[CC]

The Plaintiffs are represented by:

          Todd L. Nunn, Esq.
          K&L GATES LLP
          925 Fourth Ave, Suite 2900
          Seattle, WA 98104-1158
          Telephone: (206) 623-7580
          Facsimile: (206) 623-7022
          E-mail: todd.nunn@klgates.com

The Defendants are represented by:

          Todd L. Nunn, Esq.
          K&L GATES LLP
          925 Fourth Ave, Suite 2900
          Seattle, WA 98104-1158
          Telephone: (206) 623-7580
          Facsimile: (206) 623-7022
          E-mail: todd.nunn@klgates.com

               - and -

          James P. Walsh, Jr., Esq.
          Richard G. Rosenblatt, Esq.
          James P. Walsh, Jr., Esq.
          MORGAN, LEWIS & BOCKIUS LLP
          502 Carnegie Center
          Princeton, NJ 08540-6241
          Telephone: (609) 916-6600
          Facsimile: (609) 916-6601
          E-mail: richard.rosenblatt@morganlewis.com
                  james.walsh@morganlewis.com

AMERICAN LANDMARK: Diez Seeks Extension of Class Cert Deadline
--------------------------------------------------------------
In the class action lawsuit captioned as LARA DIEZ, individually
and on behalf of all others similarly situated, v. AMERICAN
LANDMARK, LLC, Case No. 1:22-cv-20189-KMM (S.D. Fla.), the
Plaintiff asks the Court to enter an order extending the class
certification deadline by 60 days, from August 5, 2022 to October
4, 2022.

On January 14, 2022, Defendant removed this putative class action
alleging violations of the Telephone Consumer Protection Act. In
response to the Plaintiff's Complaint, Defendant filed a Motion to
Dismiss, and a Motion to Compel Arbitration. Both motions are fully
briefed.

On April 26, 2022, this Court granted in part Plaintiff's unopposed
request to set a filing deadline and briefing schedule for
Plaintiff's class certification motion. Pursuant to that Order, the
Plaintiff is required to move for class certification by August 5,
2022.

On May 27, 2022, this Court granted in part Plaintiff’s Motion to
Compel Discovery. Pursuant to that Order, Defendant was ordered to
produce certain discovery related to the Plaintiff's individual
claims.

On June 21, 2022, this Court granted in part and denied in part
Defendant's Motion to Stay Discovery.

American Landmark is one of the fastest-growing multifamily
owner-operators, with a portfolio of communities throughout Texas
and the Southeast.

A copy of the Plaintiff's motion dated July 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3clXGCv at no extra
charge.[CC]

The Plaintiff is represented by:

          Manuel Hiraldo, Esq.
          HIRALDO P.A.
          401 E. Las Olas Blvd., Suite 1400
          Fort Lauderdale, FL 33301
          Telephone: (954) 400-4713
          E-mail: mhiraldo@hiraldolaw.com

APP OF NEW MEXICO: Remand of Lax Class Suit to State Court Affirmed
-------------------------------------------------------------------
In the cases, BRIAN LAX; TRACY BURON-HAHNLEIN; WERNER HAHNLEIN;
JEREMY HADER, Plaintiffs-Appellees v. APP OF NEW MEXICO ED, PLLC,
f/k/a AlignMD of New Mexico, PLLC, Defendant-Appellant, and
LOVELACE HEALTH SYSTEM, LLC, Defendant. BRIAN LAX; TRACY
BURON-HAHNLEIN; WERNER HAHNLEIN; JEREMY HADER, on their own behalf
and on behalf of others similarly situated, Plaintiffs-Appellees v.
LOVELACE HEALTH SYSTEM, LLC, Defendant-Appellant, and APP OF NEW
MEXICO ED, PLLC, f/k/a AlignMD of New Mexico, PLLC, Defendant, Case
Nos. 22-2057, 22-2058 (10th Cir.), Judge Nancy L. Moritz of the
U.S. Court of Appeals for the Tenth Circuit affirms the district
court's order remanding the putative class-action suit to New
Mexico state court.

I. Background

The Plaintiffs in the suit are former patients who sought treatment
at Lovelace facilities located in the state of New Mexico. They
allege that APP, a company that provides emergency room physician
and nurse practitioner staffing for Lovelace facilities, overbilled
them at out-of-network rates even though the Plaintiffs were
in-network with Lovelace.

The Plaintiffs filed the class action against APP and Lovelace in
New Mexico state court in February 2020. Their complaint included
claims for violations of the New Mexico Unfair Practices Act,
conversion, willful breach of contract, unjust enrichment, and
civil conspiracy. They sought certification of a proposed class
including "all New Mexico residents who, beginning four years prior
to the filing date of the lawsuit, were billed by APP for amounts
greater than the in-network amount permitted by their insurance
provider for medical services provided at Lovelace facilities."
J.A., Vol. I at 40.

APP, which is a limited liability company with its principal place
of business in Tennessee, removed the action to federal court based
on the Class Action Fairness Act (CAFA). CAFA grants district
courts jurisdiction over class actions involving at least 100
proposed class members, more than $5,000,000 in controversy, and
the presence of a plaintiff class member who is a citizen of a
state different from any defendant. Lovelace consented to the
removal.

The Plaintiffs later filed a motion to remand the case to state
court. They asserted the case should be remanded because the
Defendants had failed to establish that more than $5 million was in
controversy. They further argued that even assuming the
amount-in-controversy requirements were met, CAFA's "local
controversy exception" mandated that the action remain in state
court.

The district court found that the $5 million jurisdictional
threshold was met. That determination is not challenged in this
appeal. It also initially found that the Plaintiffs had failed to
show that the local controversy exception applied because they
failed to establish that more than two-thirds of the proposed class
members, whom the complaint defined as New Mexico residents, were
also New Mexico citizens. The district court then took the
Plaintiffs' motion to remand under advisement and provided them
with the opportunity to conduct limited discovery on the question
of class citizenship.

The Plaintiffs filed an amended motion to remand. In connection
with the amended motion, they produced an expert report from
Professor James H. Degnan, an Associate Professor in the Department
of Mathematics and Statistics at the University of New Mexico.
Based on a statistical sampling Dr. Degnan conducted, the
Plaintiffs argued they had proved that more than two-thirds of the
class members were citizens of New Mexico.

In his expert report, Dr. Degnan explained that APP had provided
the Plaintiffs with information concerning all people who received
services from APP during the four-year period covered by the
lawsuit who were in-network with Lovelace and out-of-network with
APP. From that list, the Plaintiffs' counsel removed transactions
in which a customer did not have a New Mexico address, was not
billed by APP, or received the first bill from APP after APP had
already received payment. They also removed duplicate entries. This
left 29,351 class member records. Professor Degnan then created a
random sample of 100 class members from the revised list and
provided the sample to the Plaintiffs' counsel.

Law firm employees contacted the class members on the list by
telephone and surveyed them using a script format agreed upon by
the parties. The telephone survey showed that, of the 100 sample
class members, 52 affirmed their New Mexico citizenship, one stated
he was not a citizen, and 47 either would not respond or could not
be reached. The Plaintiffs then retained a service that performed a
"skip trace" to determine if additional information could be
obtained about the 47 non-respondents. This skip tracing uncovered
information concerning 83 of the 100 class members: Their current
residential address, property ownership on Feb. 11, 2020 (the date
the complaint was filed), and vehicle registration on Feb. 11,
2020.

Dr. Degnan concluded with "a 95% confidence interval for this data
that the true proportion of New Mexico citizens from the population
of 29,351 individuals sampled is larger than 2/3." In other words,
the survey results combined with the skip-tracing results showed
that the class met the two-thirds requirement for the local
controversy exception.

The Defendants produced their own expert report that criticized the
scientific reliability of Dr. Degnan's report. They again opposed
the Plaintiffs' motion to remand, arguing the Plaintiffs had failed
to meet the local controversy requirement because they had failed
to show that (1) two-thirds of the proposed class were citizens of
New Mexico, and (2) the New Mexico defendant named in the
complaint, Lovelace, was a "significant defendant" whose conduct
formed a significant basis for the Plaintiffs' claims and from whom
plaintiffs sought significant relief. The district court determined
that the Plaintiffs met their burden to show that the local
controversy requirements were met. It therefore granted their
motion to remand.

APP and Lovelace filed petitions for permission to appeal, which
the Tenth Circuit granted.

II. Discussion

A.

The Defendants challenge the district court's finding that the
Plaintiffs showed more than two-thirds of class members are New
Mexico citizens. "A person is a citizen of a state if the person is
domiciled in that state." "A person acquires domicile in a state
when the person resides there and intends to remain there
indefinitely," a status that courts typically discern from the
"totality of the circumstances."

The Defendants contend the district court's citizenship finding was
clearly erroneous because the Plaintiffs' method of proof, which
the district court accepted, was unreliable or inadequate. Because
it is impracticable to obtain information concerning citizenship of
all the members of a large class, affidavits or survey responses
targeting a representative sample of class members is a legitimate
means of satisfying a plaintiff's burden under a CAFA exception.

The Defendants argue, however, that the Plaintiffs' approach in the
case did not produce reliable indicia of citizenship. They claim
the Plaintiffs' method was flawed because it allowed them to count
a significant number of non-responding class members as New Mexico
citizens. They argue that the district court's reliance on only
these few factors rather than the totality of potentially relevant
considerations was erroneous.

The Tenth Circuit holds that the extrinsic proof offered by the
Plaintiffs is framed in terms of citizenship, not mere residency.
There is sufficient additional evidence on which the district court
could rely in determining citizenship. First, the skip-tracing
uncovered no data that they resided, owned property, or had
registered vehicles in any other state. Second, they were residents
of New Mexico both when they received the medical service and years
later, when the skip tracing was performed. Both these factors
support the district court's conclusion that these class members
were not only residents of New Mexico but also were citizens who
intended to remain within that state.

The Tenth Circuit also sees no reason to conclude that the
"residency plus one" method, when combined with other reasonable
inferences to be drawn from the skip-tracing data, yielded only a
51% likelihood that each non-responding class member was a citizen.
In addition, skip tracing, when properly conducted, is a legitimate
means of determining citizenship, particularly when a telephone
survey yields too few results to provide an adequate analysis of
the proposed class. "What is in another man's mind must be
determined by what he does as well as by what he says."

B.

The Defendants also challenge the district court's determination
that Lovelace is a "significant" local defendant -- that is, one
"whose alleged conduct forms a significant basis for the claims
asserted by the proposed plaintiff class" and from whom plaintiffs
seek "significant relief." To determine whether the "significant
basis" element is met, the Tenth Circuit examines whether the local
defendant's conduct "forms a significant basis for the claims
asserted by the class."

The Tenth Circuit holds that to the extent a merits-based inquiry
is appropriate when deciding the remand issue, it cannot say at
this stage that the Plaintiffs' complaint fails to seek significant
relief from Lovelace. Finally, in considering Lovelace's
significance as a defendant, the Tenth Circuit must compare its
conduct with that of the other defendant. For the reasons it has
identified, Lovelace qualifies as a significant local defendant
under this comparative analysis. Contrary to the Defendant's
contention, it does not appear that the Plaintiffs named Lovelace
to defeat CAFA jurisdiction, or that Lovelace is not "actually a
primary focus of the litigation."

III. Conclusion

The Tenth Circuit affirms the district court's order of remand.

A full-text copy of the Court's July 13, 2022 Order & Judgment is
available at https://tinyurl.com/355ppzx3 from Leagle.com.


APPLE INC: Extension of Deadline to File Class Cert. Sought
-----------------------------------------------------------
In the class action lawsuit captioned as RACHAEL SHAY, individually
and on behalf of all others similarly situated, v. APPLE INC., et
al., Case No. 3:20-cv-01629-JO-BLM (S.D. Cal.), the Parties file
joint motion to continue deadline to file class certification
motion and related dates:

    1. To set the following briefing schedule for Plaintiff's
       class certification motion and related expert
       disclosures:

       a. The Plaintiff's class certification-related expert
          disclosures shall be due by September 9, 2022,
          concurrently with her motion for class certification;

       b. Plaintiff's reply in support of her motion for class
          certification shall be due by December 30, 2022; and

       c. Apple's opposition to Plaintiff's motion for class
          certification, including any rebuttal expert
          disclosures, shall be due by November 18, 2022; and

    2. To set a further scheduling conference and additional
       case deadlines after this Court's order on Plaintiff's
       anticipated motion for class certification.

Apple Inc. is an American multinational technology company that
specializes in consumer electronics, software and online services
headquartered in Cupertino, California.

A copy of the Parties' motion dated July 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3AUf2Al at no extra charge.[CC]

The Plaintiff is represented by:

          James R. Hawkins, Esq.
          Christina M. Lucio, Esq.
          Mitchell J. Murray, Esq.
          JAMES HAWKINS, APLC
          9880 Research Drive, Suite 200
          Irvine, CA 92618
          Telephone: (949) 387-7200
          Facsimile: (949) 387-6676
          E-mail: james@jameshawkinsaplc.com
                  christina@jameshawkinsaplc.com
                  mitchell@jameshawkinsaplc.com

The Defendants are represented by:

          Kate T. Spelman, Esq.
          Alexander M. Smith, Esq.
          JENNER & BLOCK LLP
          633 West 5th Street, Suite 3600
          Los Angeles, CA 90071-2054
          Telephone: (213) 239-5100
          Facsimile: (213) 239-5199
          E-mail: kspelman@jenner.com
                  asmith@jenner.com

AUTO-OWNERS INSURANCE: Bid to Certify Class in Mason's Suit Granted
-------------------------------------------------------------------
In the case, MASON'S AUTOMOTIVE COLLISION CENTER, LLC, Plaintiff v.
AUTO-OWNERS INSURANCE COMPANY, Defendant, Case No. 2:21-CV-02153
(W.D. Ark.), P.K. Homes, III, of the U.S. District Court for the
Western District of Arkansas, Fort Smith Division, grants in part
the Plaintiff's motion for certification of a class action.

I. Background

The Plaintiff is an Arkansas limited liability company operating an
auto body shop in Fort Smith, Arkansas. The Defendant issued
Plaintiff an insurance policy, policy number 175024-70545480-18
(the "Policy"), which provided coverage to its property with a
limit of $399,200. The Policy's declarations also included a
Coinsurance percentage of 80% and a deductible of $5,000.

According to the Defendant, "coinsurance is a common feature of
property insurance, which is designed to discourage policyholders
from underinsuring their property." Because most losses are partial
losses and not total losses, insureds are often incentivized to
insure less than the full value of their property in exchange for
lower premiums. "As a result, insurers end up paying a higher
percentage of claims at the upper end of a policyholder's limit of
insurance but receive relatively low premiums in return." To
address this, coinsurance provisions are added to policies.

In most polices Defendant issues, foundations are excluded from
coverage. Though below-grade foundations are excluded from coverage
under the Policy, the exclusion of below-grade foundations "from
the total replacement cost is an underwriting philosophy rather
than an element or function of the valuation process, and the
deduction of below-grade foundations is left to the discretion of
the adjuster." To exclude below-grade foundations from the
valuation, the adjuster must "click the Separate Insurance
Exclusion Box." Because an adjuster must manually "click the
Separate Insurance Exclusion Box," the value of a below-grade
foundation is commonly included when determining the total value of
Covered Property even though the foundation itself is not Covered
Property as defined by the policy.

The Plaintiff's individual claims arise from a May 18, 2019,
tornado that allegedly damaged its real and personal property. It
filed a claim with the Defendant and was issued partial payment for
the damages. The Plaintiff's claim was reduced by the Coinsurance
premium as outlined in the Policy. However, in determining the
value of Covered Property, the Defendant included the value of the
property's foundation, though the foundation was an exclusion in
the Policy. The Plaintiff argues that because the foundation was
not Covered Property it should not have been included in
determining the value of its Covered Property at the time of the
loss, and by including the foundation the Defendant paid $18,000
less than it should have if the foundation had not been included
when calculating the Coinsurance premium.

The Plaintiff filed the instant lawsuit alleging individual claims
for breach of contract and bad faith, and seeks to pursue class
actions for declaratory judgment, breach of contract, and unjust
enrichment. It filed the instant motion seeking to certify a
multi-state class or, in the alternative, an Arkansas-only class
under Rule 23(b)(2) or Rule 23(b)(3). The multi-state class is
proposed to include the 20 states in which Defendant does business:
Alabama, Arkansas, Georgia, Idaho, Iowa, Illinois, Indiana, Kansas,
Missouri, North Carolina, North Dakota, Nebraska, Ohio,
Pennsylvania, South Carolina, South Dakota, Tennessee, Utah,
Virginia, and Wisconsin. The Defendant opposes the certification of
any class action.

II. Analysis

A. The Multi-State Class

1. Rule 23(b)(3)

Judge Holmes finds that differences in state law render a
multi-state class unmanageable. He says, the case centers on the
question of how the actual cash value of Covered Property should be
determined when calculating the value of any applicable Coinsurance
premium under the Defendant's insurance policies. Three different
tests exist to determine the actual cash value of property when the
policy is silent on the definition, as in the present case. Those
tests are: (1) the fair market value test; (2) the replacement
costs minus depreciation test; and (3) the broad evidence rule.

Determination of the actual cash value is central to the issues
posed in the lawsuit. Indeed, the class action claims are based on
allegations that the actual cash value of property was overinflated
by including the value of below-grade foundations, and therefore
policyholders were charged higher coinsurance premiums to the
benefit of the Defendant. Because the three tests to determine
actual cash value are obviously different and these differences
would likely result in outcome-determinative differences, Judge
Holmes finds such a class would be unmanageable. Further, as to the
class action claim for unjust enrichment, "the states' different
approaches to, or elements of, unjust enrichment are significant."

Therefore, Judge Holmes declines to certify a multi-state class
action under Rule 23(b)(3).

2. Rule 23(b)(2)

Rule 23(b)(2) permits a class action when "the party opposing the
class has acted or refused to act on grounds that apply generally
to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a
whole."

Judge Holmes finds that the class' claims for unjust enrichment and
breach of contract squarely call for an individualized award of
monetary damages, and therefore such claims are inappropriate for
Rule 23(b)(2) class certification. As to the putative class' claim
for declaratory judgment, he says, due to differences in state law,
a class action under Rule 23(b)(2) is inappropriate.

As argued by the Defendant in its briefing, because the broad
evidence rule "permits consideration of all evidence an expert
would find relevant to a determination of value," there is an
argument to be made that in states which have adopted the broad
evidence rule it is permissible to consider the value of a
below-grade foundation in determining the value of Covered Property
because the condition and value of the otherwise excluded
foundation is so inextricably linked the value of property as a
whole.

Because of these material differences in state law, Judge Holmes
finds that declaratory judgment on a multi-state basis is
inappropriate and declines to certify a multi-state class pursuant
to Rule 23(b)(2).

B. The Arkansas-Only Class Action

Though differences between state law prevent certification of a
multi-state class action, this concern does not in arise in an
Arkansas-only class of Plaintiffs. Therefore, Judge Holmes
certifies an Arkansas-only class.

1. Rule 23(a)

Judge Holmes finds that (i) a class consisting of most Auto-Owners
Arkansas policyholders who have filed claims since 2016 will likely
satisfy the numerosity requirement, and therefore Rule 23(a)(1) is
satisfied; (ii) the Plaintiff has submitted a sufficiently common
question to the Court -- whether, under Arkansas law, the Defendant
may include the value of an otherwise excluded foundation when
determining the value of Covered Property in calculating any
applicable Coinsurance premium; (iii) the Plaintiff's claims fairly
encompass the claims of other potential class members, and the
typicality requirement is satisfied; and (iv) the Court has not
been presented with any potential conflicts of interest between the
named Plaintiff and potential class members.

2. Rule 23(b)

a. Rule 23(b)(2)

As Judge Holmes discussed, though the class' claims for breach of
contract and unjust enrichment may not be certified under Rule
23(b)(2), the claim for declaratory judgment is squarely addressed
by the text of the rule. Because declaratory judgment regarding
whether, under Arkansas law, the Defendant may include the value of
an excluded foundation when calculating the Coinsurance premium
would provide relief to each member of the class uniformly, such a
claim may be properly certified under Rule 23(b)(2). Therefore,
Judge Holmes certifies a class under Rule 23(b)(2) on the claim for
declaratory judgment.

b. Rule 23(b)(3)

The unmanageability concerns of a multi-state class under Rule
23(b)(3) do not arise in an Arkansas-only class of plaintiffs. A
class action under Rule 23(b)(3) is appropriate when "questions of
law or fact common to class members predominate over any questions
affecting only individual members, and the Court finds that a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy."

Judge Holmes is aware of no other litigation concerning this
controversy filed in this forum or elsewhere. Additionally, because
all claims and defenses available to the class members appear at
this stage to be identical and arise from identical insurance
policies, he finds that common questions of law and fact
predominate over any individual issues, and such a class would be
sufficiently manageable. Further, because all potential plaintiffs
are Arkansas residents, he finds that centering litigation in this
forum is desirable. Finally, due to the relatively small value of
the individual claims when compared to the cost of litigation, he
finds that a class action is the superior method for fairly and
efficiently resolving the claims of the class.

Therefore, Judge Holmes certifies an Arkansas-only Rule 23(b)(3)
class action on claims of breach of contract and unjust enrichment,
with the class to be defined as stated.

c. Hybrid Class Action and Bifurcation

Because he has certified a class under both Rule 23(b)(2) and
(b)(3), Judge Holmes holds that the certification is a "hybrid
certification." To insulate the (b)(2) class from the money-damage
portion of the litigation, he bifurcates the action into two
phases. In the first phase, liability will be determined through
the declaratory relief sought by the Rule 23(b)(2) class. Should
the case proceed to the second phase, the claims of the Rule
23(b)(3) class will be adjudicated.

The classes certified under both Rule 23(b)(2) and Rule 23(b)(3)
will be defined as follows: All Arkansas residents who have or had
a commercial property damage policy of insurance with Auto-Owners
at any time from Sept. 24, 2016 to the present, whose foundations
were excluded from coverage by the terms of the policy, and who
received a payment for a property damage claim which payment was
reduced by the Coinsurance provisions of the policy pursuant to a
property valuation that included the cost of foundations.

The Plaintiff must separately file a motion for notice to be
distributed to potential Rule 23(b)(3) class members.

d. Appointment of Class Counsel

The Plaintiff's counsel has filed a declaration which demonstrates
that the Plaintiff's counsel is competent to represent the
interests of the Rule 23(b)(2) and Rule 23(b)(3) classes. The
counsel has ably represented the Plaintiff since the inception of
this litigation, and the declaration filed by the counsel details
the counsels' experience in handling other consumer fraud cases and
class action litigation. Therefore, Judge Holmes finds that the
Plaintiff's counsel has satisfied the requirements of Rule 23(g)
and appoints the Plaintiff's counsel as the class counsel.

III. Conclusion

Judge Holmes grants in part the Plaintiff's motion as stated. He
bifurcates the case, with the claim of the Rule 23(b)(2) class to
be adjudicated in phase one, and the claims of the Rule 23(b)(3)
class to be adjudicated in phase two. The Plaintiff's counsel is
appointed as the class counsel for both the Rule 23(b)(2) and Rule
23(b)(3) classes.

A full-text copy of the Court's July 13, 2022 Opinion & Order is
available at https://tinyurl.com/3ddy43wv from Leagle.com.


BEACH BOYS: Conditional Cert. of FLSA Collective Action OK'd
------------------------------------------------------------
In the class action lawsuit captioned as ROBERT CONREY, et. al. v.
BEACH BOYS OF FT. LAUDERDALE, LLC, and KRIKOR KEVORKIAN,
individually, Case No. 0:22-cv-60843-PMH (S.D. Fla.), the Hon.
Judge Patrick M. Hunt entered an order granting the Plaintiff's
motion for conditional certification of Fair Labor Standards Act
(FLSA) Collective Action pursuant to 29 U.S.C. section 216(b):

   (1) Conditional certification is hereby granted in the above
       styled action as a collective action under Section 216(b)
       of the Fair Labor Standards Act for the following
       collectives:

       -- Tip Collective

          "All Servers and Bartenders who worked for the
          Defendants in Fort Lauderdale, Florida, during the
          three years preceding this lawsuit who were required
          to surrender any portion of their tips to Defendants;"
          and

       -- Overtime Collective

          "All Servers and Bartenders who worked for the
          Defendants in Fort Lauderdale, Florida, during the
          three years preceding this lawsuit who were required
          to work in excess of 40 hours in a workweek and were
          not compensated the applicable federal overtime
          wages;"

   (2) the Plaintiff, Robert Conrey, is appointed as the
       Representative of each Collective with authority to
       negotiate and appear at settlement conferences and
       mediations on behalf of each class;

   (3) Attorneys Jordan Richards, Esq. and David Nudel,
       Esq. are appointed as counsel for the Collectives;

   (4) the Court Orders production from the Defendants, within
       10 calendar days of this Order, of a complete list,
       electronically in an Excel spreadsheet, of each and every
       server listed alphabetically from "A" to "Z" -- with
       their last known home address in a separate field
       corresponding with each name – who was ever employed as a

       server or bartender by Defendants at any time between May
       2, 2019, and the date of this motion;

   (5) The Plaintiff's counsel is hereby authorized to send by
       U.S. Mail or electronically a Court-Approved Notice to
       all such persons about their rights to opt-in to this
       collective action by filing a Consent to Join Lawsuit;
       and

   (6) The putative class under 216(b) is given 45 days from the
       date of this Order to submit the Consents to Join to
       Plaintiff's Counsel or otherwise opt-in to this case.

A copy of the Court's order dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3PkclfP at no extra charge.[CC]


BELFOR USA: Case Management Order Entered in Rodriguez Suit
-----------------------------------------------------------
In the class action lawsuit captioned as RICHARD RODRIGUEZ v.
BELFOR USA GROUP, INC., et al., Case No. 22-cv-02071-VKD (N.D.
Cal.), the Hon. Judge Virginia K. Demarchi entered a case
management order as follows:

  -- Motion for collective action            March 31, 2023
     certification pursuant to 29
     U.S.C. section 216(b) and
     motion for class certification
     under Fed. R. Civ. P. 23:

  -- The Defendants' opposition              April 28, 2023
     to class certification:

  -- The Plaintiff's reply in                May 12, 2023
     support of class certification

  -- Hearing on motion for class             May 30, 2023
     certification:

Belfor is a multinational corporation that sells recovery and
restoration services, for the purpose of restoring structures
damaged as a result of fires, floods, and natural disasters.

A copy of the Court's order dated July 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3aLKM00 at no extra charge.[CC]

BELLEVILLE, IL: Denial of Bid to Certify Dewalt's Class Reversed
----------------------------------------------------------------
In the case, Jeffrey Dewalt, on Behalf of Himself and Others
Similarly Situated, Petitioner-Appellant v. THE CITY OF BELLEVILLE,
Respondent-Appellee, Case No. 5-20-0366 (5th Cir.), the Appellate
Court of Illinois, Fifth District, reverses the circuit court's
order denying the Petitioner's motion for class certification.

I. Background

On Oct. 28, 2015, Petitioner Dewalt, on behalf of himself and other
similarly situated persons, filed a complaint and motion for class
certification against the Respondent, the City of Belleville, in
Saint Clair County, Illinois. The Petitioner, as named
representative, represented residents of Saint Clair County,
Illinois, and other counties within and outside the State of
Illinois, who were previously cited and arrested for any felony
offense set forth in the City of Belleville's Traffic Code
Redemption of Vehicle Ordinance Section 70.075 (approved April 4,
2011), and then subsequently charged a $500 level 1 Redemption Fee
to reimburse the City's police department for time and resources
associated with the impoundment and release of towed vehicles (the
class).

The Petitioner, as the named representative, stated that a City
police officer stopped and subsequently arrested him on Dec. 9,
2014, "for a violation of the Illinois Compiled Statutes," without
reference to the specific charges. That being said, the record
indicated that the City arrested and charged petitioner with
driving under the influence (DUI), a designated felony under
ordinance 70.075,2 following a traffic stop for improper lane usage
and failure to signal. Following his arrest, the Petitioner's
vehicle was towed, and the City subsequently charged petitioner
$500 to begin the process of retrieving the towed vehicle.

In the two-count complaint, the class alleged that the Redemption
Fee was unconstitutional, where it violated their substantive due
process rights pursuant to article I, section 2 of the Illinois
Constitution (Ill. Const. 1970, art. I, Section 2). The class
argued that the "Redemption Fee is not the tow fee but merely a
receipt given to the Plaintiffs so they can then appear at the
towing facility, which possesses their automobile and then pay the
actual towing fee." Thus, the class asserted that no rational
justification existed for the Redemption Fee because it "is not
connected or related in whole or in part to the cost of towing,
towing services or actual services provided." Rather, once payment
is made to the City police department, additional fees are required
to a third-party towing facility for the towing and impound of the
vehicle.

Following multiple motions for extension of time to respond to the
Petitioner's class action complaint, the City filed an answer and
affirmative defenses on Jan. 11, 2016. In particular, the City
asserted 10 affirmative defenses, including the following: (1) the
ordinance imposes a constitutionally valid and reasonable
administrative fee; (2) if the administrative fee is not entirely
reasonably related to the costs included by the City, then any
damages suffered by the members of the class should be reduced to
that amount; (3) the ordinance imposes a constitutionally valid and
reasonable fee; (4) claims contained in the complaint are barred
for failure to exhaust administrative remedies; (5) the City is
immune from liability under the Local Governmental and Governmental
Employees Tort Immunity Act (745 ILCS 10/1-101 et seq.; (6) the
statute of limitations bars claims of various members; (7)
petitioner fails to state a claim upon which relief may be granted;
(8) petitioner lacks standing to bring the class action suit; (9)
claims of various members of the class are barred by the doctrine
of estoppel; and (10) claims of various members of the class are
barred by the doctrine of laches.

On Feb. 9, 2016, the Petitioner filed a motion for leave of court
to submit additional discovery. Following a hearing on May 16,
2016, the circuit court, over the City's objection, granted the
Petitioner's motion.

On Jan. 23, 2017, the City filed a motion to stay proceedings,
arguing the need to avoid spending time, effort, and money in the
current case, provided the Petitioner's counsel filed a similar
case before the appellate court with briefing complete and oral
argument scheduled for March 2017. Following a hearing on May 7,
2017, the circuit court stayed the proceedings and reset the cause
for July 31, 2017.

On April 12, 2018, following multiples continuances, the City filed
a motion for summary judgment on the issue of standing and attached
the affidavit of Thomas Hunter, the City's attorney. The City
argued the Petitioner failed to demonstrate standing to bring the
cause in his individual capacity. Accordingly, the City requested
the circuit court grants summary judgment and dismisses the
complaint with prejudice for a lack of standing to bring any
claim.

On June 8, 2018, in response to the City's April 12, 2018, motion
for summary judgment, the Petitioner argued that a genuine issue of
material fact existed. Shortly thereafter, following a hearing on
the City's motion for summary judgment, the circuit court denied
the City's motion on July 17, 2018.

On Feb. 13, 2019, the Petitioner testified in a discovery
deposition. On Dec. 9, 2014, he drove Tracy's vehicle intoxicated,
and a City police officer arrested him. At the time of the arrest,
he and Tracy were dating; however, they married 10 days later on
Dec. 19, 2014. Following the Petitioner's arrest, Tracy paid the
$300 cash bond for his release with his cash. The next day, Tracy
paid $500 to the police department with the Petitioner's "vacation
money" and received proof of payment. The Petitioner confirmed
that, weeks before his Dec. 9, 2014, arrest, the city police in
O'Fallon, Illinois, arrested him for DUI, and, similarly, he paid
$500 to the police department with his own money to retrieve the
towed and impounded vehicle.

On Aug. 30, 2019, the City filed a combined motion for summary
judgment and memorandum in support, arguing, again, that the
Petitioner lacked standing to bring the cause or represent the
class. The City asserted that his "representation that he owned the
vehicle at the time of the incident is demonstrably false," as
evidenced by documents from the Illinois Secretary of State
confirming Tracy owned the vehicle.

On Sept. 24, 2019, the Petitioner filed a motion for leave to amend
the class action complaint pursuant to section 2-616 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-616 (West 2018)). He, in
requesting leave to amend, desired to add an alternate theory to
the original Oct. 28, 2015, complaint, arguing that the Redemption
Fee failed to comply with the rationally related constitutional
standard. The next day, he filed a brief and argument against the
City's motion for summary judgment, arguing, inter alia, that he
had standing to file the cause and represent the class where he
paid the fee in question and vehicle ownership was an irrelevant
issue.

On Sept. 27, 2019, the City filed a combined response to the
Petitioner's motion for class certification and memorandum in law
in support, arguing he failed to demonstrate a direct injury as
required for standing and did not demonstrate that he could
adequately serve as a class representative. Accordingly, the
Petitioner could not satisfy the requirements of class
certification set forth by section 2-801 of the Code (id. Section
2-801).

On Nov. 5, 2019, following the circuit court's order granting
petitioner's motion for leave to amend, the Petitioner filed the
first amended class action complaint on behalf of a class pursuant
to section 2-801 of the Code. He argued that the Redemption Fee
failed to comply with the rationally related constitutional
standard violating their substantive due process rights pursuant to
article I, section 2 of the Illinois Constitution (Ill. Const.
1970, art. I, Section 2). He also argued that the Redemption Fee
was arbitrary and unreasonable where no similar fee was charged for
police activity concerning citing, arresting, and booking a
defendant for a non-motor vehicle related offense. Shortly
thereafter, the Petitioner filed a brief and argument in support of
his motion for class certification asserting that he met the four
elements of section 2-801 of the Code.

On Dec. 10, 2019, the City filed an answer and affirmative defenses
to the Petitioner's first amended class action complaint and a
supplement to the City's Aug. 30, 2019, motion for summary
judgment. In requesting summary judgment, the City asserted that
petitioner's "amendments in the First Amended Complaint do not
cure, nor even address, the substance and grounds for summary
judgment in the Defendant's Combined Motion for Summary Judgment
and Memorandum in Support Thereof."

On Dec. 11, 2019, the circuit court heard argument on the
Petitioner's motion for class certification and the City's motion
for summary judgment. On Feb. 4, 2020, the circuit court entered
and order denying the Petitioner's motion for class certification
without prejudice. The court, in a handwritten order, stated the
following: "Court finds that this cause supports class
certification of similarly aggrieved persons. However, named
Plaintiff has insufficient standing to bring cause or represent
class." The court provided the Petitioner's attorney 30 days to
substitute petitioner for a different representative with standing
to challenge ordinance 70.075.

On Feb. 24, 2020, the Petitioner filed a "Motion to Reconsider
and/or For More Definite Order." He informed the circuit court
that, despite his requests, the City "flatly denied" to provide
information on which class members paid the administrative fee at
issue on or before the original complaint was filed. In seeking
clarification, the Petitioner requested the circuit court to
specify "what facts specifically disallowed standing" for
petitioner to "adequately represent the class (i.e., non-ownership
of vehicle, his fees were paid by another from his money, etc.)."
Because the ordinance does not require only the vehicle's owner to
pay the fee, the Petitioner posited that he satisfied the adequacy
element of section 2-801(3) of the Code (735 ILCS 5/2-801(3).
Accordingly, he requested the court vacates the portion of the
order requiring petitioner be removed as class representative.

Due to the COVID-19 pandemic, resolution of the Petitioner's motion
to reconsider was delayed. On Oct. 13, 2020, the circuit court
heard argument on the Petitioner's motion to reconsider via Zoom.
The Petitioner, again, argued that the ordinance did not require
vehicle ownership or physical payment for release of the towed and
impounded vehicle. Rather, the ordinance required that petitioner
pay the Redemption Fee with his own money to secure the release of
the vehicle, which he did. In response, the City reiterated its
point that the Petitioner could not have standing without ownership
of the vehicle and proof of physical payment. Following argument,
the court denied the Petitioner's motion. The Petitioner filed a
timely notice of appeal.

II. Analysis

On appeal, the Petitioner argues the circuit court erred by denying
class certification. The circuit court's Feb. 4, 2020, order
determined that "this cause supported certification of a class of
similarly aggrieved persons." The court, however, denied the
Petitioner's motion for class certification without prejudice,
because he had insufficient standing to bring the cause or
represent the class. Accordingly, the threshold question before the
Appellate Court is whether the circuit court erred by finding the
Petitioner lacked standing to challenge ordinance 70.075 on behalf
of the named class.

The Appellate Court concludes the Petitioner has standing.

Ordinance 70.075 states that the fees at issue "are to be paid by
the registered owner or person seeking the vehicle's release
regardless of whether the owner of said vehicle or any other
authorized person was driving the vehicle at the time of the arrest
and impoundment by the Police Department." Despite this, the City
argues the Petitioner did not suffer a direct injury as a result of
enforcement of the ordinance for two reasons. First, petitioner did
not own the vehicle on the date of the incident. Second, even if
the Petitioner used his own money to pay the Redemption Fee, he did
so voluntarily, thus, he lacks standing to challenge the
ordinance.

The Appellate Court disagrees. It says, according to the plain
language of ordinance 70.075, ownership of the vehicle is
irrelevant. The direct injury, which can be traced back to the
City's ordinance, is the payment of the $500 Redemption Fee. This
fee, which was paid by the Petitioner as a result of the City's
enforcement of ordinance 70.075, could be redressed by a trial on
this matter.

Moreover, the injury is distinct and palpable provided it refers to
a class of aggrieved persons, represented by petitioner, who have
been subjected to a $500 Redemption Fee if cited and arrested for
certain felony offenses under ordinance 70.075 while operating a
motor vehicle. As such, there is no question that petitioner
alleges an injury that is distinct and palpable, rather than a
generalized grievance common to all members of the public.
Accordingly, the Appellate Court concludes the Petitioner has
standing.

Turning to the circuit court's denial of class certification, based
on a review of the court's ruling, the Appellate Court finds that
two of the four elements of section 2-801 of the Code,
specifically, commonality and adequacy, are relevant to the appeal.
It concludes the circuit court abused its discretion in denying
class certification.

First, as it relates to the element of commonality, the Appellate
Court cannot conclude that the Petitioner's interest is different
than the other class members, where the common issue for all
members is whether the $500 Redemption Fee is rationally related to
the ordinance's stated purpose of reimbursing the City's police
department for expenses associated with towing and impounding
vehicles. Additionally, the persons subject to this fee are those
who are cited and arrested for any felony offense set forth in
ordinance 70.075. As stated, the Petitioner, similar to the other
class members, was subject to the Redemption Fee because he was
arrested for a charge set forth in ordinance 70.075, and the car he
was driving was towed and impounded. Because the ordinance neither
requires ownership of the vehicle nor that the owner to pay the
fee, the element of commonality is satisfied.

Next, for the reasons stated on the issue of standing, the
Petitioner would adequately represent the class as class
representative. Moreover, the record contains no evidence of
inadequacy on the part of his attorney to represent the class.

Accordingly, the Appellate Court concludes the circuit court abused
its discretion in denying class certification, where certification
of a class of similarly aggrieved persons in the cause is
supported.

III. Conclusion

For the foregoing reasons, the Appellate Court reverses the
judgment of the circuit court denying class certification, remands
the cause, and directs the circuit court with instructions to
certify the class.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/2dcz7zs5 from Leagle.com.


BIG EASY: Asks More Time to Respond to Rule 23 Class Cert. Bid
--------------------------------------------------------------
In the class action lawsuit captioned as Ramos et al v. Big Easy
Foods of Louisiana LLC, et al., Case No. 2:17-cv-01298-JDC-KK (W.D.
La.), the Defendants Big Easy Foods of Louisiana, LLC and Melchor
Maya ask the Court granting them a 30-day extension of time, until
August 8, 2022, to respond to the Plaintiffs' Motion for Rule 23
Class Certification.

On March 28, 2022, the Plaintiffs filed a Second Amended Complaint.
The Defendants filed their Answer and Defenses to Plaintiffs'
Second Amended Complaint on April 27, 2022.

On May 23, 2022, the Plaintiffs filed an Unopposed Motion to Extend
Deadline to File Motion for Class Certification to June 17, 2022.
On May 24, 2022, the Court granted the Plaintiffs' Unopposed Motion
to Extend Deadline to File Motion  for Class Certification and set
the deadline to June 17, 2022.

On June 17, 2022, the Plaintiffs filed a Motion for Rule 23 Class
Certification. On June 18, 2022, the Plaintiffs filed a Motion for
Leave to File Document After Deadline and for Leave to Exceed Page
Limits on Plaintiffs' Memorandum in Support of Their Motion for
Rule 23 Class Certification.  On June 21, 2022, the Court granted
Plaintiff’s Motion for Leave to File.

A copy of the Defendants' motion dated July 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3PhwNy6 at no extra
charge.[CC]

The Plaintiffs are represented by:

          Edward B. Cloutman, III, Esq.
          LAW OFFICES OF EDWARD B. CLOUTMAN III
          3301 Elm Street
          Dallas, TX 75226-2562
          E-mail: ecloutman@lawoffices.email

               - and -

          Anna Bocchini, Esq.
          Christopher J. Willett, Esq.
          Rebecca Eisenbrey, Esq.
          Colleen Anne Mulholland, Esq.
          EQUAL JUSTICE CENTER
          510 S. Congress Ave., Suite 206
          Austin, TX 78704
          E-mail: abocchini@equaljusticecenter.org
                  cwillett@equaljusticecenter.org
                  reisenbrey@equaljusticecenter.org
                  cmulholland@equaljusticecenter.org

The Defendants are represented by:

          Thomas J. Gayle, Esq.
          GAYLE LAW FIRM, LLC
          713 Kirby Street
          Lake Charles, LA 70601
          Telephone: (337) 494-1220
          Facsimile: (337) 494-1145
          E-mail: tgayle@gaylelaw.com

               - and -

          Scott D. Huffstetler, Esq.
          Erin L. Kilgore, Esq.
          Chelsea G. Caswell, Esq.
          Terry D. McCay, Esq.
          KEAN MILLER LLP
          400 Convention Street, Suite 700
          P. O. Box 3513 (70821-3513)
          Baton Rouge, LA 70802
          Telephone: (225) 387-0999
          Facsimile: (225) 388-9133
          E-mail: scott.huffstetler@keanmiller.com
                  erin.kilgore@keanmiller.com
                  chelsea.caswell@keanmiller.com
                  terry.mccay@keanmiller.com

BIG EASY: Opposition to Class Cert Bid Extended to August 8
-----------------------------------------------------------
In the class action lawsuit captioned as NOE VEGA RAMOS, ET AL., v.
BIG EASY FOODS OF LOUISIANA LLC, ET AL., Case No.
2:17-cv-01298-JDC-KK (W.D. La.), the Hon. Judge James D. Cain, Jr.
entered an order granting the motion for extension of time to file
opposition to the Plaintiffs' motion for Rule 23 Class
Certification:

    -- The Defendants shall file their opposition no later than
       August 8, 2022.

    -- The Plaintiffs shall file their reply no later than
       August 22, 2022.

Big Easy Foods wholesales foods. The Company distributes a range of
food to retailers such as shrimps, smoked sausages, and boneless
chickens.

copy of the Court's order dated July 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3ob4IN5 at no extra charge.[CC]

BOSWORTH COMPANY: Dickson Files 3rd Supplement to Class Cert Bid
----------------------------------------------------------------
In the class action lawsuit captioned as STEVEN DICKSON, and all
others similarly situated under 29 USC section 216(b), v. THE
BOSWORTH COMPANY, LTD., Case No. Case 7:22-cv-00010-DC-RCG (W.D.
Tex.), the Plaintiff files a third supplement to his motion to
proceed as a collective action and to authorize notice to similarly
situated employees, under the Fair Labor Standards Act of 1938
("FLSA").

Pursuant to the Court's orders allowing preliminary discovery, the
Plaintiffs deposed one witness from each of the following
departments: (i) Plumbing Construction, (ii) HVAC Construction,
(iii) Commercial A/C (HVAC), and (iv) Electrical.

Witnesses from the Electrical and Commercial A/C (HVAC) departments
confirmed that employees within those departments
should also receive notice of this lawsuit because they were paid
on a ticket hour basis, the Plaintiff says.

The evidence is clear that electricians and commercial HVAC
technicians were paid based upon billable ticket hours worked.
Thus, because commercial HVAC technicians most definitely were not
ever paid for all overtime hours worked, and electricians may not
have been paid for all overtime hours worked, both types of
employees should also receive notice of this lawsuit, the Plaintiff
adds.

Bosworth provides mechanical contracting services.

A copy of the Plaintiff's motion to certify class dated July 6,
2022 is available from PacerMonitor.com at https://bit.ly/3PFL1IC
at no extra charge.[CC]

The Plaintiff is represented by:

          Fernando M. Bustos, Esq.
          Matthew N. Zimmerman, Esq.
          Brandon C. Callahan, Esq.
          BUSTOS LAW FIRM, P.C.
          P.O. Box 1980
          Lubbock, TX 79408-1980
          Telephone: (806) 780-3976
          Facsimile: (806) 780-3800
          E-mail: fbustos@bustoslawfirm.com
                  mzimmerman@butsoslawfirm.com
                  bcallahan@bustoslawfirm.com

BP EXPLORATION: Cook's Expert Testimony Excluded From Favorite Suit
-------------------------------------------------------------------
In the case, CARL VERNON FAVORITE v. BP EXPLORATION & PRODUCTION,
INC., ET AL. SECTION: "A" (5), Civil Action No. 17-3192 (E.D. La.),
Judge Jay C. Zainey of the U.S. District Court for the Eastern
District of Louisiana issued an order granting:

    (i) the Motion in Limine to Exclude the Causation Testimony
        of Plaintiff's Expert, Dr. Jerald Cook; and

   (ii) Motion for Summary Judgment, both filed by the Defendants
        BP Exploration & Production, Inc., BP America Production
        Co., and BP p.l.c., and joined by Defendants Halliburton
        Energy Services, Inc., Transocean Deepwater, Inc.,
        Transocean Holdings, LLC, and Transocean Offshore
        Deepwater Drilling, Inc.

The following motions are before the Court: The Defendants' Motion
in Limine to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook and their Motion for Summary Judgment. Plaintiff
Favorite opposes the motions. The motions, submitted for
consideration on July 6, 2022, are before the Court on the briefs
without oral argument.

The case is a B3 lawsuit that was allotted to this section from
Judge Barbier's MDL 2179 pertaining to the Deepwater Horizon
disaster that occurred in the Gulf of Mexico in 2010. The B3
pleading bundle includes personal injury claims due to oil or
chemical exposure during the disaster response -- In re Oil Spill
by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on April 20,
2010, No. MDL 2179, 2021 WL 6055613, at *1 (E.D. La. Apr. 1, 2021).
B3 plaintiffs either opted out of the Medical Settlement or were
not members of the settlement class.

The Plaintiff in this B3 lawsuit, Favorite, was employed in the
Deepwater Horizon oil spill response effort. Favorite claims that
exposure to crude oil and chemical dispersants (the former being
released by the oil spill itself and the latter being used in the
cleanup process) caused the following injuries: Rash, tinea
corpora, blistering, crusting, dryness/flaking, inflammation,
redness or swelling, itching, lesions, peeling, scaling, welts,
cough, sinusitis, chest congestion, vestibulitis, pharyngitis,
sinus bradycardia/weakness, bronchitis, chronic rhinitis, decreased
sense of smell, nasal congestion/discharge, throat irritation, arm
and back pain, joint pain, weakness, constipation, nausea,
abdominal cramps/pain, diarrhea, dizziness, insomnia, fatigue,
headache, shortness of breath, wheezing, swelling/mass head and
neck, facial swelling, tingling in arms and legs, vision problems,
blurred vision, eye burning and irritation, hydronephrosis and
difficulty urinating.

From the inception of the severed B3 cases, it has been understood
that to prevail "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." Because causation had proved to be the
critical element in the BELO cases, it was predicted to be the
"make-or-break" issue for many B3 cases as well. A B3 plaintiff
must prove that the legal cause of the claimed injury or illness is
exposure to oil or other chemicals used during the oil spill
response. The issue of causation will require an individualized
inquiry.

The Plaintiff's burden with respect to causation in a toxic tort
case involves proof of both general causation and specific
causation. General causation is whether a substance is capable of
causing a particular injury or condition in the general population.
Specific causation is whether a substance caused a particular
individual's injury, i.e., the Plaintiff's injury. If his case
fails at the first-step of producing admissible evidence as to
general causation, then the issue of specific causation is rendered
moot.

Hundreds of B3 cases were reassigned from MDL 2179 to the judges of
this district. It is beyond dispute that in each of those cases,
the Plaintiff must prove both general and specific causation as
those concepts are defined. The Plaintiff's will-call witness list
identifies one expert medical doctor, Jerald Cook, M.D., who is
identified as an expert witness regarding "causation."

Dr. Cook has produced a report dated March 14, 2022, entitled
Health Effects Among Deepwater Horizon Oil Spill Response and
Cleanup Workers A Cause and Effect Analysis. The report is not
unique to the case -- it has been described by another judge as "an
omnibus, non-case specific general causation expert report that has
been used by many B3 plaintiffs." Presumably, the Plaintiff intends
for Dr. Cook's testimony to establish both general causation and
specific medical causation in the case.

The instant motion in limine pertains to the Plaintiff's use of Dr.
Cook's report, and the testimony that would derive from it at
trial, as evidence of both general and specific causation. The
Movants seek to exclude Dr. Cook's opinions on various grounds
including the principles espoused in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Defendants point
out that two other judges in this district have evaluated Dr.
Cook's medical causation report and have concluded that it should
be excluded.

If Dr. Cook's opinions are excluded from trial, then the Defendants
argue that their motion for summary judgment must be granted
because the Plaintiff will have no expert medical causation
evidence, which would constitute a complete failure of proof on an
essential element of the case. But even if the Court denies the
motion in limine and allows Dr. Cook to testify at trial, the
Defendants contend that the report does not provide evidence of
specific causation vis à vis the Plaintiff, and the Plaintiff has
identified no other expert who would provide specific causation
evidence.

Judge Zainey has carefully studied and considered the numerous
decisions issued by the other judges of this district who have
determined that Dr. Cook's opinions should be excluded. For the
same reasons given by Judges Vance, Barbier, Morgan, and Ashe when
they granted the Defendants' motion in limine directed at the same
version of Dr. Cook's report that was produced in the case, he
grants the Defendants' motion in limine. Consequently, the
Defendants' motion for summary judgment is likewise granted.

Accordingly, Judge Zainey grants:

     a. the Defendants' Motion in Limine to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook; and

     b. their Motion for Summary Judgment. The Plaintiff's claims
are dismissed with prejudice.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/2dem3dbu from Leagle.com.


BP EXPLORATION: Cook's Expert Testimony Excluded From Ward Suit
---------------------------------------------------------------
In the case, JENNIFER ROBIN WARD v. BP EXPLORATION & PRODUCTION,
INC., ET AL. SECTION: "A" (2), Civil Action No. 17-4220 (E.D. La.),
Judge Jay C. Zainey of the U.S. District Court for the Eastern
District of Louisiana issued an order granting:

    (i) the Motion in Limine to Exclude the Causation Testimony
        of Plaintiff's Expert, Dr. Jerald Cook; and

   (ii) Motion for Summary Judgment, both filed by Defendants BP
        Exploration & Production, Inc., BP America Production
        Co., and BP p.l.c., and joined by Defendants Halliburton
        Energy Services, Inc., Transocean Deepwater, Inc.,
        Transocean Holdings, LLC, and Transocean Offshore
        Deepwater Drilling, Inc.

The following motions are before the Court: The Defendants' Motion
in Limine to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook and their Motion for Summary Judgment. Plaintiff
Ward opposes the motions. The motions, submitted for consideration
on July 6, 2022, are before the Court on the briefs without oral
argument.

The case is a B3 lawsuit that was allotted to this section from
Judge Barbier's MDL 2179 pertaining to the Deepwater Horizon
disaster that occurred in the Gulf of Mexico in 2010. The B3
pleading bundle includes personal injury claims due to oil or
chemical exposure during the disaster response -- In re Oil Spill
by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on April 20,
2010, No. MDL 2179, 2021 WL 6055613, at *1 (E.D. La. Apr. 1, 2021).
B3 plaintiffs either opted out of the Medical Settlement or were
not members of the settlement class.

The Plaintiff in this B3 lawsuit, Ward, was employed in the
Deepwater Horizon oil spill response effort. Ward claims that
exposure to crude oil and chemical dispersants (the former being
released by the oil spill itself and the latter being used in the
cleanup process) caused the following injuries: breathing problems,
sinusitis, bronchitis, sinus pain, chest congestion, cough, sore
throat, upper respiratory infection, ear pain, runny nose, chronic
rhinitis, chronic pansinusitis, nausea diarrhea, vomiting, weight
loss, tired, weakness, malaise, fatigue, headaches, abscess of
thigh, rashes, anxiety, blurred vision, chest pain, shortness of
breath, asthma, wheezing and joint pain.

From the inception of the severed B3 cases, it has been understood
that to prevail "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." Because causation had proved to be the
critical element in the BELO cases, it was predicted to be the
"make-or-break" issue for many B3 cases as well. A B3 plaintiff
must prove that the legal cause of the claimed injury or illness is
exposure to oil or other chemicals used during the oil spill
response. The issue of causation will require an individualized
inquiry.

The Plaintiff's burden with respect to causation in a toxic tort
case involves proof of both general causation and specific
causation. General causation is whether a substance is capable of
causing a particular injury or condition in the general population.
Specific causation is whether a substance caused a particular
individual's injury, i.e., the Plaintiff's injury. If his case
fails at the first-step of producing admissible evidence as to
general causation, then the issue of specific causation is rendered
moot.

Hundreds of B3 cases were reassigned from MDL 2179 to the judges of
this district. It is beyond dispute that in each of those cases,
the Plaintiff must prove both general and specific causation as
those concepts are defined. The Plaintiff's will-call witness list
identifies one expert medical doctor, Jerald Cook, M.D., who is
identified as an expert witness regarding "causation."

Dr. Cook has produced a report dated March 14, 2022, entitled
Health Effects Among Deepwater Horizon Oil Spill Response and
Cleanup Workers A Cause and Effect Analysis. The report is not
unique to the case -- it has been described by another judge as "an
omnibus, non-case specific general causation expert report that has
been used by many B3 plaintiffs." Presumably, the Plaintiff intends
for Dr. Cook's testimony to establish both general causation and
specific medical causation in the case.

The instant motion in limine pertains to the Plaintiff's use of Dr.
Cook's report, and the testimony that would derive from it at
trial, as evidence of both general and specific causation. The
Movants seek to exclude Dr. Cook's opinions on various grounds
including the principles espoused in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Defendants point
out that two other judges in this district have evaluated Dr.
Cook's medical causation report and have concluded that it should
be excluded.

If Dr. Cook's opinions are excluded from trial, then the Defendants
argue that their motion for summary judgment must be granted
because the Plaintiff will have no expert medical causation
evidence, which would constitute a complete failure of proof on an
essential element of the case. But even if the Court denies the
motion in limine and allows Dr. Cook to testify at trial, the
Defendants contend that the report does not provide evidence of
specific causation vis à vis the Plaintiff, and the Plaintiff has
identified no other expert who would provide specific causation
evidence.

Judge Zainey has carefully studied and considered the numerous
decisions issued by the other judges of this district who have
determined that Dr. Cook's opinions should be excluded. For the
same reasons given by Judges Vance, Barbier, Morgan, and Ashe when
they granted the Defendants' motion in limine directed at the same
version of Dr. Cook's report that was produced in the case, he
grants the Defendants' motion in limine. Consequently, the
Defendants' motion for summary judgment will likewise be granted.

Accordingly, Judge Zainey grants:

     a. the Defendants' Motion in Limine to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook; and

     b. their Motion for Summary Judgment. The Plaintiff's claims
are dismissed with prejudice.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/yazmpmn4 from Leagle.com.


BP EXPLORATION: Court Excludes Cook's Testimony From Harris Suit
----------------------------------------------------------------
In the case, AL'TERRYAL HARRIS v. BP EXPLORATION & SECTION "R" (4)
PRODUCTION, INC., ET AL., Civil Action No. 17-4342 (E.D. La.),
Judge Sarah S. Vance of the U.S. District Court for the Eastern
District of Louisiana issued an Order and Reasons granting:

   a. BP Exploration & Production, Inc., BP American Production
      Company, and BP p.l.c.'s motion to exclude the testimony of
      the Plaintiff's general causation expert, Dr. Jerald Cook;
      and

   b. their motion for summary judgment.

I. Background

The case arises from Plaintiff Harris' alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico. The Plaintiff alleges that he performed cleanup work after
the Deepwater Horizon oil spill from May 2010 through August 2010.
He asserts that, as part of this work, he was exposed to
"known-carcinogenic compounds via exposure to crude oil and the
Corexit dispersants used." He also represents that this exposure
has resulted in the following conditions: sinus problems,
headaches, shortness of breath, and chest pain.

Mr. Harris' case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. His case
was severed from the MDL as one of the "B3" cases for plaintiffs
who either opted out of, or were excluded from, the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement.8 Harris
is a plaintiff who opted out of the settlement. After the
Plaintiff's case was severed, it was reallocated to the Court. The
Plaintiff asserts claims for general maritime negligence,
negligence per se, and gross negligence against the defendants as a
result of the oil spill and its cleanup.

To demonstrate that exposure to crude oil, weathered oil, and
dispersants can cause the symptoms Harris alleges in his complaint,
he offers the testimony of Dr. Jerald Cook, an occupational and
environmental physician. Dr. Cook is the Plaintiff's sole expert
offering an opinion on general causation. In his report, Dr. Cook
utilizes a "general causation approach to determine if a reported
health complaint can be from the result of exposures sustained in
performing oil spill cleanup work." Dr. Cook concludes that
"general causation analysis indicates" that the following
conditions "can occur in individuals exposed to crude oil,
including weathered crude oil:" chronic rhinitis, chronic
sinusitis, allergic rhinitis, chronic obstructive pulmonary disease
("COPD"), bronchitis, asthma, reactive airway disease, dermatitis,
skin irritation, skin rash, skin itching, acute conjunctivitis,
chronic conjunctivitis, and dry eye disease.

The BP parties now move to exclude Dr. Cook's expert opinion,
arguing that it is unreliable and unhelpful. The Defendants also
move for summary judgment, asserting that if Dr. Cook's general
causation opinion is excluded, the Plaintiff is unable to carry his
burden on causation. The Plaintiff opposes both motions.

II. Discussion

A. Motion to Exclude

The district court has considerable discretion to admit or exclude
expert testimony under Federal Rule of Evidence 702. Rule 702
provides that an expert witness "qualified by knowledge, skill,
experience, training, or education may testify" if: (a) the
expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or determine a
fact in issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and
methods to the facts of the case.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), the Supreme Court held that Rule 702 "requires the district
court to act as a gatekeeper to ensure that 'any and all scientific
testimony or evidence admitted is not only relevant, but
reliable.'" The Court's gatekeeping function consists of a two-part
inquiry into reliability and relevance. First, the Court must
determine whether the proffered expert testimony is reliable.
Second, it must determine whether the expert's reasoning or
methodology "fits" the facts of the case, and whether it will
thereby assist the trier of fact to understand the evidence. Thus,
in determining the admissibility of expert testimony, the district
court must accord the proper deference to "the jury's role as the
proper arbiter of disputes between conflicting opinions."

Mr. Harris has the burden of "proving that the legal cause of his
claimed injury or illness is exposure to oil or other chemicals
used during the response." The Fifth Circuit has developed a
"two-step process in examining the admissibility of causation
evidence in toxic tort cases." First, plaintiff must show general
causation, which means that he must show that "a substance is
capable of causing a particular injury or condition in the general
population." Second, if the Court concludes that plaintiff has
produced admissible evidence on general causation, it must then
determine whether plaintiff has shown specific causation, in other
words, that "a substance caused that particular plaintiff's
injury." If the Court finds that there is no admissible general
causation evidence, there is "no need to consider" specific
causation.

At issue is whether the Plaintiff has produced admissible general
causation evidence. To prove that exposure to the chemicals in oil
and dispersants can cause the medical conditions Harris alleges,
the Plaintiff offers the testimony of an environmental
toxicologist, Dr. Cook. Dr. Cook asserts that his report is "based
on the scientific methods used in the field of environmental
toxicology." More specifically, he states that his "causation
analysis regarding health effects of oil spill exposures draws on
the process of evaluating epidemiology studies and the work from
established expert groups similar to the Surgeon General's Advisory
Committee to make a more likely than not conclusion."

Judge Vance examines Dr. Cook's general causation report. As noted
by another section of the Court, "Cook issued an omnibus, non-case
specific general causation expert report that has been used by many
B3 plaintiffs." Dr. Cook's report is divided into five chapters.
The first chapter outlines Dr. Cook's qualifications, which are not
challenged in the case. The second chapter provides an overview of
the Deepwater Horizon oil spill. The third chapter describes Dr.
Cook's methodology. Chapter four of Dr. Cook's report details prior
studies on the health effects associated with oil spills. Chapter
five presents Dr. Cook's conclusions on general causation for four
categories of health conditions: (1) respiratory conditions, (2)
dermal conditions, (3) ocular conditions, and (4) cancers.

Based on Dr. Cook's report, the Defendants argue that Harris is
unable to prove general causation with relevant and reliable expert
testimony. They contend that Dr. Cook's general causation report is
unreliable because he failed to: (1) verify Harris's diagnoses; (2)
follow the accepted methodology for analyzing epidemiology and
adequately evaluate the scientific literature; and (3) identify the
harmful level of exposure to any chemical that can cause any of
plaintiff's alleged medical conditions. The Defendants further
argue that even if Dr. Cook's report were reliable, it is unhelpful
because it addresses "few if any" of Harris' medical complaints,
and fails to specify what particular toxins can cause which
particular conditions. They also note that another section of the
Court has excluded Dr. Cook's report for similar reasons.

Judge Vance finds that Dr. Cook's failure to identify the level of
exposure to a relevant chemical that can cause the conditions
asserted in the Plaintiff's complaint renders his opinion
unreliable, unhelpful, and incapable of establishing general
causation. Despite the acknowledged importance of determining the
dose-response relationship, Dr. Cook's report fails to identify
what level of exposure is necessary to be capable of producing the
adverse health effects that he analyzes. Notably, neither Dr. Cook,
nor the two studies, specify a base level of exposure that is
necessary to cause rhinosinusitis.

In light of Dr. Cook's failure to determine the relevant harmful
level of exposure, Judge Vance finds that he lacks sufficient facts
on both the composition of the substances at issue and their
toxicity to provide a reliable opinion on general causation. She
further notes that Dr. Cook's lack of even an estimate of what
level of exposure is enough to be able to cause the Plaintiff's
alleged symptoms means that he "lacks the scientific knowledge
necessary to engage in the accepted methodology employed by
toxicologists to establish causation in a toxic tort case."

In addition to finding Dr. Cook's general causation analysis
unreliable, Judge Vance also finds that Dr. Cook's report is
unhelpful to the factfinder for many of the same reasons. She finds
that Dr. Cook's opinion is unhelpful because of his inability to
link any specific chemical that Harris was allegedly exposed to, at
the level to which he was exposed, to the conditions that he
alleges in his complaint. This lack of specificity is concerning
given that Dr. Cook testified that there are "thousands of
chemicals" in crude oil, and acknowledged that the different
constituent chemicals in crude oil vary depending on location and
the impact of the "weathering process."

Given the concerns about the accuracy of this model from both the
Plaintiff's expert as well as the investigators themselves, Judge
Vance does not find that, in this context, Dr. Cook's conclusions
were reliable, or that he is otherwise excused from determining a
harmful level of exposure. Furthermore, consideration of the
studies that Dr. Cook relies on does nothing to cure the lack of
"fit" between his report and the facts of the case, specifically
his failure to identify any chemical that is capable of causing any
of the conditions that Harris alleges in his complaint.

In sum, the Plaintiff, as the party offering the testimony of Dr.
Cook, has failed to meet his burden of establishing the reliability
and relevance of Dr. Cook's report. Given that Dr. Cook's report is
unreliable and fails to provide the "minimal facts necessary" to
establish general causation in the case, Judge Vance grants the
Defendants' motion to exclude Dr. Cook's testimony.

B. Motion for Summary Judgment

In their motion for summary judgment, the Defendants contend that
they are entitled to summary judgment "on two independent bases"
because the Plaintiff has cannot establish either general or
specific causation. Although the parties dispute whether the
Plaintiff is required to present admissible expert testimony to
establish specific causation, neither party contests that expert
testimony is necessary to establish general causation.

In the case, Judge Vance has excluded testimony from the
Plaintiff's only expert offering an opinion on general causation.
Because she excludes Dr. Cook's opinion on general causation, and
the Plaintiff has produced no other admissible general causation
evidence in the case, Judge Vance need not reach the question of
specific causation. Given that Harris cannot prove a necessary
element of his claims against the Defendants, his claims must be
dismissed. Accordingly, she grants the Defendants' motion for
summary judgment.

III. Conclusion

For the foregoing reasons, Judge Vance grants the BP parties'
motion to exclude the testimony of Dr. Cook. She also grants their
motion for summary judgment. The Plaintiff's claims are dismissed
with prejudice.

A full-text copy of the Court's July 15, 2022 Order & Reasons is
available at https://tinyurl.com/yrwd6z2c from Leagle.com.


BP EXPLORATION: In Barksdale Suit, Court Excludes Cook Testimony
----------------------------------------------------------------
In the case, DONALD ANGELO BARKSDALE v. BP EXPLORATION &
PRODUCTION, INC., ET AL. SECTION: "A" (2), Civil Action No. 17-3034
(E.D. La.), Judge Jay C. Zainey of the U.S. District Court for the
Eastern District of Louisiana issued an order granting:

    (i) the Motion in Limine to Exclude the Causation Testimony
        of Plaintiff's Expert, Dr. Jerald Cook; and

   (ii) Motion for Summary Judgment, both filed by Defendants BP
        Exploration & Production, Inc., BP America Production
        Co., and BP p.l.c., and joined by Defendants Halliburton
        Energy Services, Inc., Transocean Deepwater, Inc.,
        Transocean Holdings, LLC, and Transocean Offshore
        Deepwater Drilling, Inc.

The following motions are before the Court: The Defendants' Motion
in Limine to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook and their Motion for Summary Judgment. Plaintiff
Barksdale opposes the motions. The motions, submitted for
consideration on June 8, 2022, are before the Court on the briefs
without oral argument.

The case is a B3 lawsuit that was allotted to this section from
Judge Barbier's MDL 2179 pertaining to the Deepwater Horizon
disaster that occurred in the Gulf of Mexico in 2010. The B3
pleading bundle includes personal injury claims due to oil or
chemical exposure during the disaster response -- In re Oil Spill
by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on April 20,
2010, No. MDL 2179, 2021 WL 6055613, at *1 (E.D. La. Apr. 1, 2021).
B3 plaintiffs either opted out of the Medical Settlement or were
not members of the settlement class.

The Plaintiff in this B3 lawsuit, Barksdale, was employed in the
Deepwater Horizon oil spill response effort. Barksdale claims that
exposure to crude oil and chemical dispersants (the former being
released by the oil spill itself and the latter being used in the
cleanup process) caused the following injuries: shortness of
breath, congestion, ears ringing, nausea, digestive problems,
stomach cramps, dry eyes, headaches, muscle spasms, joint pain and
stiffness, wheezing, cough, increased sputum, persistent cold,
recurring skin dryness, fatigue and sinus problems.

From the inception of the severed B3 cases, it has been understood
that to prevail "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." Because causation had proved to be the
critical element in the BELO cases, it was predicted to be the
"make-or-break" issue for many B3 cases as well. A B3 plaintiff
must prove that the legal cause of the claimed injury or illness is
exposure to oil or other chemicals used during the oil spill
response. The issue of causation will require an individualized
inquiry.

The Plaintiff's burden with respect to causation in a toxic tort
case involves proof of both general causation and specific
causation. General causation is whether a substance is capable of
causing a particular injury or condition in the general population.
Specific causation is whether a substance caused a particular
individual's injury, i.e., the Plaintiff's injury. If his case
fails at the first-step of producing admissible evidence as to
general causation, then the issue of specific causation is rendered
moot.

Hundreds of B3 cases were reassigned from MDL 2179 to the judges of
this district. It is beyond dispute that in each of those cases,
the Plaintiff must prove both general and specific causation as
those concepts are defined. The Plaintiff's will-call witness list
identifies one expert medical doctor, Jerald Cook, M.D., who is
identified as an expert witness regarding "causation."

Dr. Cook has produced a report dated March 14, 2022, entitled
Health Effects Among Deepwater Horizon Oil Spill Response and
Cleanup Workers A Cause and Effect Analysis. The report is not
unique to the case -- it has been described by another judge as "an
omnibus, non-case specific general causation expert report that has
been used by many B3 plaintiffs." Presumably, the Plaintiff intends
for Dr. Cook's testimony to establish both general causation and
specific medical causation in the case.

The instant motion in limine pertains to the Plaintiff's use of Dr.
Cook's report, and the testimony that would derive from it at
trial, as evidence of both general and specific causation. The
Movants seek to exclude Dr. Cook's opinions on various grounds
including the principles espoused in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Defendants point
out that two other judges in this district have evaluated Dr.
Cook's medical causation report and have concluded that it should
be excluded.

If Dr. Cook's opinions are excluded from trial, then the Defendants
argue that their motion for summary judgment must be granted
because the Plaintiff will have no expert medical causation
evidence, which would constitute a complete failure of proof on an
essential element of the case. But even if the Court denies the
motion in limine and allows Dr. Cook to testify at trial, the
Defendants contend that the report does not provide evidence of
specific causation vis à vis the Plaintiff, and the Plaintiff has
identified no other expert who would provide specific causation
evidence.

Judge Zainey has carefully studied and considered the numerous
decisions issued by the other judges of this district who have
determined that Dr. Cook's opinions should be excluded. For the
same reasons given by Judges Vance, Barbier, Morgan, and Ashe when
they granted the Defendants' motion in limine directed at the same
version of Dr. Cook's report that was produced in the case, he
grants the Defendants' motion in limine. Consequently, the
Defendants' motion for summary judgment will likewise be granted.

Accordingly, Judge Zainey grants:

     a. the Defendants' Motion in Limine to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook; and

     b. their Motion for Summary Judgment. The Plaintiff's claims
are dismissed with prejudice.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/2p8u6axe from Leagle.com.


BP EXPLORATION: In Catchings Suit, Court Excludes Cook Testimony
----------------------------------------------------------------
In the case, DAWN DENIESE CATCHINGS v. BP EXPLORATION & PRODUCTION,
INC., ET AL. SECTION: "A" (2), Civil Action No. 17-3124 (E.D. La.),
Judge Jay C. Zainey of the U.S. District Court for the Eastern
District of Louisiana issued an order granting:

    (i) the Motion in Limine to Exclude the Causation Testimony
        of Plaintiff's Expert, Dr. Jerald Cook; and

   (ii) Motion for Summary Judgment, both filed by Defendants BP
        Exploration & Production, Inc., BP America Production
        Co., and BP p.l.c., and joined by Defendants Halliburton
        Energy Services, Inc., Transocean Deepwater, Inc.,
        Transocean Holdings, LLC, and Transocean Offshore
        Deepwater Drilling, Inc.

The following motions are before the Court: The Defendants' Motion
in Limine to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook and their Motion for Summary Judgment. Plaintiff
Catchings, opposes the motions. The motions, submitted for
consideration on June 22, 2022, are before the Court on the briefs
without oral argument.

The case is a B3 lawsuit that was allotted to this section from
Judge Barbier's MDL 2179 pertaining to the Deepwater Horizon
disaster that occurred in the Gulf of Mexico in 2010. The B3
pleading bundle includes personal injury claims due to oil or
chemical exposure during the disaster response -- In re Oil Spill
by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on April 20,
2010, No. MDL 2179, 2021 WL 6055613, at *1 (E.D. La. Apr. 1, 2021).
B3 plaintiffs either opted out of the Medical Settlement or were
not members of the settlement class.

The Plaintiff in this B3 lawsuit, Catchings, was employed in the
Deepwater Horizon oil spill response effort. Catchings claims that
exposure to crude oil and chemical dispersants (the former being
released by the oil spill itself and the latter being used in the
cleanup process) caused the following injuries: acute
labyrinthitis, decreased sense of smell, facial pain or sinus pain,
nasal congestion/discharge, nosebleed, throat irritation,
vertigo/dizziness, abdominal cramps and pain, diarrhea, nausea,
vomiting, chronic rash on hands and feet, skin blistering, boils,
crusting, dryness/flaking, inflammation, redness or swelling,
itching, lesion, peeling, scaling, welts, eye burning and
irritation, fainting, headache, shortness of breath, and wheezing.

From the inception of the severed B3 cases, it has been understood
that to prevail "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." Because causation had proved to be the
critical element in the BELO cases, it was predicted to be the
"make-or-break" issue for many B3 cases as well. A B3 plaintiff
must prove that the legal cause of the claimed injury or illness is
exposure to oil or other chemicals used during the oil spill
response. The issue of causation will require an individualized
inquiry.

The Plaintiff's burden with respect to causation in a toxic tort
case involves proof of both general causation and specific
causation. General causation is whether a substance is capable of
causing a particular injury or condition in the general population.
Specific causation is whether a substance caused a particular
individual's injury, i.e., the Plaintiff's injury. If his case
fails at the first-step of producing admissible evidence as to
general causation, then the issue of specific causation is rendered
moot.

Hundreds of B3 cases were reassigned from MDL 2179 to the judges of
this district. It is beyond dispute that in each of those cases,
the Plaintiff must prove both general and specific causation as
those concepts are defined. The Plaintiff's will-call witness list
identifies one expert medical doctor, Jerald Cook, M.D., who is
identified as an expert witness regarding "causation."

Dr. Cook has produced a report dated March 14, 2022, entitled
Health Effects Among Deepwater Horizon Oil Spill Response and
Cleanup Workers A Cause and Effect Analysis. The report is not
unique to the case -- it has been described by another judge as "an
omnibus, non-case specific general causation expert report that has
been used by many B3 plaintiffs." Presumably, the Plaintiff intends
for Dr. Cook's testimony to establish both general causation and
specific medical causation in the case.

The instant motion in limine pertains to the Plaintiff's use of Dr.
Cook's report, and the testimony that would derive from it at
trial, as evidence of both general and specific causation. The
Movants seek to exclude Dr. Cook's opinions on various grounds
including the principles espoused in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Defendants point
out that two other judges in this district have evaluated Dr.
Cook's medical causation report and have concluded that it should
be excluded.

If Dr. Cook's opinions are excluded from trial, then the Defendants
argue that their motion for summary judgment must be granted
because the Plaintiff will have no expert medical causation
evidence, which would constitute a complete failure of proof on an
essential element of the case. But even if the Court denies the
motion in limine and allows Dr. Cook to testify at trial, the
Defendants contend that the report does not provide evidence of
specific causation vis à vis the Plaintiff, and the Plaintiff has
identified no other expert who would provide specific causation
evidence.

Judge Zainey has carefully studied and considered the numerous
decisions issued by the other judges of this district who have
determined that Dr. Cook's opinions should be excluded. For the
same reasons given by Judges Vance, Barbier, Morgan, and Ashe when
they granted the Defendants' motion in limine directed at the same
version of Dr. Cook's report that was produced in the case, he
grants the Defendants' motion in limine. Consequently, the
Defendants' motion for summary judgment will likewise be granted.

Accordingly, Judge Zainey grants:

     a. the Defendants' Motion in Limine to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook; and

     b. their Motion for Summary Judgment. The Plaintiff's claims
are dismissed with prejudice.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/mry7astm from Leagle.com.


BP EXPLORATION: In Fountain Suit, Court Excludes Cook's Testimony
-----------------------------------------------------------------
In the case, REGINOLD FOUNTAIN v. BP EXPLORATION & PRODUCTION,
INC., ET AL. SECTION: "A" (5), Civil Action No. 17-3204 (E.D. La.),
Judge Jay C. Zainey of the U.S. District Court for the Eastern
District of Louisiana issued an order granting:

    (i) the Motion in Limine to Exclude the Causation Testimony
        of Plaintiff's Expert, Dr. Jerald Cook; and

   (ii) Motion for Summary Judgment, both filed by Defendants BP
        Exploration & Production, Inc., BP America Production
        Co., and BP p.l.c., and joined by Defendants Halliburton
        Energy Services, Inc., Transocean Deepwater, Inc.,
        Transocean Holdings, LLC, and Transocean Offshore
        Deepwater Drilling, Inc.

The following motions are before the Court: The Defendants' Motion
in Limine to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook and their Motion for Summary Judgment. Plaintiff
Fountain opposes the motions. The motions, submitted for
consideration on July 6, 2022, are before the Court on the briefs
without oral argument.

The case is a B3 lawsuit that was allotted to this section from
Judge Barbier's MDL 2179 pertaining to the Deepwater Horizon
disaster that occurred in the Gulf of Mexico in 2010. The B3
pleading bundle includes personal injury claims due to oil or
chemical exposure during the disaster response -- In re Oil Spill
by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on April 20,
2010, No. MDL 2179, 2021 WL 6055613, at *1 (E.D. La. Apr. 1, 2021).
B3 plaintiffs either opted out of the Medical Settlement or were
not members of the settlement class.

The Plaintiff in this B3 lawsuit, Fountain, was employed in the
Deepwater Horizon oil spill response effort. Fountain claims that
exposure to crude oil and chemical dispersants (the former being
released by the oil spill itself and the latter being used in the
cleanup process) caused the following injuries: headaches,
dizziness, fatigue shortness of breath, gastrointestinal issues,
nausea, abdominal pain, rash, skin dryness/flaking, itching,
peeling, rhinitis, chronic frontal sinusitis, decreased sense of
smell, facial pain or sinus pain, nasal discharge, swollen
congested inflamed mucosa, throat irritation, blurred vision,
burning eyes, dry eyes, watery eyes, aching eyes, eyes made worse
in light, and pain in extremities.

From the inception of the severed B3 cases, it has been understood
that to prevail "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." Because causation had proved to be the
critical element in the BELO cases, it was predicted to be the
"make-or-break" issue for many B3 cases as well. A B3 plaintiff
must prove that the legal cause of the claimed injury or illness is
exposure to oil or other chemicals used during the oil spill
response. The issue of causation will require an individualized
inquiry.

The Plaintiff's burden with respect to causation in a toxic tort
case involves proof of both general causation and specific
causation. General causation is whether a substance is capable of
causing a particular injury or condition in the general population.
Specific causation is whether a substance caused a particular
individual's injury, i.e., the Plaintiff's injury. If his case
fails at the first-step of producing admissible evidence as to
general causation, then the issue of specific causation is rendered
moot.

Hundreds of B3 cases were reassigned from MDL 2179 to the judges of
this district. It is beyond dispute that in each of those cases,
the Plaintiff must prove both general and specific causation as
those concepts are defined. The Plaintiff's will-call witness list
identifies one expert medical doctor, Jerald Cook, M.D., who is
identified as an expert witness regarding "causation."

Dr. Cook has produced a report dated March 14, 2022, entitled
Health Effects Among Deepwater Horizon Oil Spill Response and
Cleanup Workers A Cause and Effect Analysis. The report is not
unique to the case -- it has been described by another judge as "an
omnibus, non-case specific general causation expert report that has
been used by many B3 plaintiffs." Presumably, the Plaintiff intends
for Dr. Cook's testimony to establish both general causation and
specific medical causation in the case.

The instant motion in limine pertains to the Plaintiff's use of Dr.
Cook's report, and the testimony that would derive from it at
trial, as evidence of both general and specific causation. The
Movants seek to exclude Dr. Cook's opinions on various grounds
including the principles espoused in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Defendants point
out that two other judges in this district have evaluated Dr.
Cook's medical causation report and have concluded that it should
be excluded.

If Dr. Cook's opinions are excluded from trial, then the Defendants
argue that their motion for summary judgment must be granted
because the Plaintiff will have no expert medical causation
evidence, which would constitute a complete failure of proof on an
essential element of the case. But even if the Court denies the
motion in limine and allows Dr. Cook to testify at trial, the
Defendants contend that the report does not provide evidence of
specific causation vis à vis the Plaintiff, and the Plaintiff has
identified no other expert who would provide specific causation
evidence.

Judge Zainey has carefully studied and considered the numerous
decisions issued by the other judges of this district who have
determined that Dr. Cook's opinions should be excluded. For the
same reasons given by Judges Vance, Barbier, Morgan, and Ashe when
they granted the Defendants' motion in limine directed at the same
version of Dr. Cook's report that was produced in the case, he
grants the Defendants' motion in limine. Consequently, the
Defendants' motion for summary judgment will likewise be granted.

Accordingly, Judge Zainey grants:

     a. the Defendants' Motion in Limine to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook; and

     b. their Motion for Summary Judgment. The Plaintiff's claims
are dismissed with prejudice.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/82amjh5e from Leagle.com.


CALIFORNIA TRANSIT: Denial of Arbitration in Evenskaas Suit Flipped
-------------------------------------------------------------------
In the case, DAVID EVENSKAAS, Plaintiff and Respondent v.
CALIFORNIA TRANSIT, INC., et al., Defendants and Appellants, Case
No. B308354 (Cal. App.), the Court of Appeals of California for the
Second District, Division Seven, reverses the trial court's order
denying the California Transit Defendants' motion to compel
arbitration.

I. Introduction

The Americans with Disabilities Act of 1990 (ADA) (42 U.S.C.
Section 12101, et seq.) requires any public entity that operates a
public transportation system to provide certain paratransit
services to individuals with disabilities. Access Incorporated
Services (not a party to this action) is the public entity that
administers paratransit services required by the ADA in Los Angeles
County. Access, in turn, contracts with California Transit, Inc. to
provide those paratransit services in parts of the county.

David Evenskaas worked as a driver for California Transit. After
California Transit terminated his employment, Evenskaas filed the
wage and hour class action against California Transit; its owner,
Timmy Mardirossian; and the company that administered California
Transit's payroll, Personnel Staffing Group, LLC (collectively, the
California Transit Defendants). Because Evenskaas signed an
arbitration agreement, in which he agreed to arbitrate all claims
arising from his employment and waived his right to seek class-wide
relief, the California Transit Defendants filed a motion to compel
arbitration.

The trial court denied the motion. The court ruled California law,
rather than the Federal Arbitration Act (FAA) (9 U.S.C. Section 1
et seq.), applied to the agreement because the agreement did not
involve interstate commerce. It further ruled that, under the
California Supreme Court's decision in Gentry v. Superior Court
(2007) 42 Cal.4th 443 (Gentry), Evenskaas' waiver of his right to
bring class action claims was unenforceable.

The California Transit Defendants appeal, contending the FAA
applies to the arbitration agreement. They are correct. Because the
paratransit services California Transit hired Evenskaas to provide
involve interstate commerce for purposes of the FAA, the FAA
applies to the arbitration agreement and preempts the Gentry rule
that certain class action waivers in employment arbitration
agreements are unenforceable. Therefore, the Court of Appeals
reverses.

II. Background

California Transit employed Evenskaas as a driver for its
paratransit service vehicles from November 2017 to August 2018. In
May 2020, Evenskaas filed a class action against the California
Transit Defendants on behalf of himself and other drivers,
asserting various wage and hour claims.

The California Transit Defendants filed a motion to compel
Evenskaas to arbitrate his individual claims and to dismiss his
class claims. The Defendants submitted an arbitration agreement
Evenskaas signed in November 2017 that "covered all claims,
controversies or disputes arising out of employment, including, but
not limited to wages, compensation, benefits, and violation of any
federal, state and city or county laws, statutes, regulations or
ordinances."

The California Transit Defendants contended the FAA applied to the
arbitration agreement. They argued the agreement involved
interstate commerce because California Transit provided
"ADA-compliant paratransit services" and Evenskaas "performed trips
for passengers with disabilities." They also argued the court
should dismiss Evenskaas' claims for class-wide relief because the
FAA preempts the California Supreme Court's decision in Gentry,
supra, 42 Cal.4th 443 that certain class action waivers in
employment arbitration agreements are unenforceable.

Mr. Evenskaas contended the FAA did not apply. He argued the
arbitration agreement did not involve interstate commerce because
California Transit provided paratransit services only in Los
Angeles County and never outside California. He also argued the
class action waiver was unenforceable under Gentry.

In reply the Defendants argued the class action waiver was
enforceable under Gentry even if the FAA did not apply. They
conceded, however, that if the class action waiver was
unenforceable, the entire arbitration agreement was unenforceable
because the waiver was "an inextricable and material aspect of the"
agreement.

The trial court denied the motion, largely agreeing with Evenskaas.
The court ruled the FAA did not apply to the arbitration agreement
because the California Transit Defendants failed to show that any
passengers who used their services were interstate passengers and
therefore only "intrastate activities were involved." The court
ruled that under Gentry the class action waiver was unenforceable
because a class action would be more effective than individual
claims in "permitting the California Transit employees to enforce
their statutory rights." Finally, in light of the Defendants'
concession the entire arbitration agreement was unenforceable if
the class action waiver was unenforceable, the court denied the
motion to compel arbitration in its entirety.

The California Transit Defendants timely appealed.

III. Discussion

The California Transit Defendants' primary argument is that,
because California Transit provides paratransit services required
by federal law and "subject to federal control and regulation," the
arbitration agreement between Evenskaas and California Transit
involves interstate commerce. Evenskaas argues the trial court
correctly ruled the Defendants failed to show the agreement
involved interstate commerce because California Transit provided
paratransit services only within Los Angeles County.

The Court of Appeals holds that the law and the facts support the
Defendants. It finds that the paratransit services provided by
California Transit and Evenskaas -- the same ones mandated by the
ADA -- involve interstate commerce. Other factors show the
paratransit services provided by California Transit involve
interstate commerce. First, transportation is an inherently
commercial activity. Second, although the California Transit
Defendants provided limited evidence of where their drivers picked
up and dropped off the majority of their passengers, there was at
least some evidence their paratransit services facilitated economic
activity by passengers.

In sum, the California Transit Defendants presented undisputed
evidence that California Transit provides paratransit services
mandated by the ADA, that Evenskaas was hired to and did provide
those services, and that the paratransit services facilitated
further commercial activity by the passengers who used the
services.

Lastly, the trial court ruled that under the California Supreme
Court's decision in Gentry, the class action waiver was
unenforceable. The California Transit Defendants argue the FAA
preempts the Gentry rule governing when class action waivers in
employment arbitration agreements are unenforceable.

The Court of Appeals holds that they are correct again. Evenskaas
does not dispute the FAA preempts the Gentry rule, nor does he
argue the arbitration agreement or his class action waiver is
otherwise unenforceable.

IV. Disposition

For these reasons, the Court of Appeals reverses the order denying
the California Transit Defendants' motion to compel arbitration. It
directs the trial court to enter a new order granting the motion
and dismissing Evenskaas' class claims. It denies the California
Transit Defendants' request for judicial notice. The California
Transit Defendants are to recover their costs on appeal.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/ms2m6ww9 from Leagle.com.

Dunn DeSantis Walt & Kendrick, LLP, Kevin V. DeSantis --
kdesantis@ddwklaw.com -- and Bradley Lebow -- blebow@ddwklaw.com --
for the Defendants and Appellants.

Kabateck LLP, Brian S. Kabateck -- bsk@kbklawyers.com -- Anastasia
K. Mazzella -- am@kbklawyers.com -- Shant A. Karnikian --
sk@kbklawyers.com -- and Jerusalem F. Beligan --
jfb@kbklawyers.com; Law Offices of Eric A. Boyajian, APC, Eric A.
Boyajian and Amaras Zagarian for the Plaintiff and Respondent.


CASELLA WASTE: Bid to Dismiss Rodney's First Amended Suit Granted
-----------------------------------------------------------------
In the case, JOSEPH WILSON RODNEY, JR., ROSEMARIE SIBLEY, and
KENNETH MESSOM, Plaintiffs v. CASELLA WASTE SYSTEMS, INC.,
Defendant, Case No. 2:21-cv-196 (D. Vt.), Judge Christina Reiss of
the U.S. District Court for the District of Vermont grants the
Defendant's Motion to Dismiss the Plaintiffs' First Amended
Complaint.

I. Introduction

Plaintiffs Joseph Wilson Rodney, Jr.; Rosemarie Sibley; and Kenneth
Messom bring the action individually and on behalf of all current
and former non-exempt waste disposal drivers who have worked for
the Defendant. They allege a collective action pursuant to the Fair
Labor Standards Act (the "FLSA") and class action claims pursuant
to state law under Fed. R. Civ. P. 23.

The Plaintiffs filed their original Complaint on Aug. 17, 2021,
which the Defendant moved to dismiss on Sept. 20, 2021. While the
Defendant's first motion to dismiss was pending, the Plaintiffs
filed their First Amended Complaint (the "FAC") on Oct. 12, 2021.
The FAC alleges: failure to pay wages and overtime under the FLSA
(Count I), failure to pay wages in accordance with Maine law (Count
II), failure to pay wages in accordance with Massachusetts law
(Count III), and failure to pay wages in accordance with Vermont
law (Count IV).

The Defendant seeks dismissal of the FAC for failure to state a
claim. On Nov. 24, 2021, the Plaintiffs opposed the motion, and on
Dec. 7, 2021, the Defendant replied. The Court held oral argument
on May 2, 2022, at which time it took the pending motion under
advisement.

II. Background

The Defendant "is a full-service solid waste company providing
waste collection and disposal services to commercial, industrial,
and residential customers in the states of Vermont, Massachusetts,
Maine, New Hampshire, Pennsylvania, and New York." It "operates
through multiple affiliated and subsidiary entities that are owned
and operated by the same core individuals and out of the same
principal office," which "subjects the Plaintiffs to the same
management regardless of the name of the subsidiary entity on their
paychecks," and "maintains centralized control of all labor
relations determinations that impact the Plaintiffs." The Defendant
and its subsidiaries and affiliates allegedly "perform the same
waste disposal services, utilize the same equipment, and operate
under the Casella business name."

Plaintiff Rodney worked for the Defendant through its subsidiary
Pine Tree Waste, Inc. as a waste disposal driver in West Bath,
Maine and Scarborough, Maine from Aug. 1, 2018 through Dec. 1,
2019. Plaintiff Sibley worked for the Defendant as a waste disposal
driver in Williston, Vermont from July 1, 2018 through Aug. 2021.
Plaintiff Messom worked for the Defendant as a waste disposal
driver in Auburn, Massachusetts from January 2019 through June
2019.

Although their "exact job titles may differ," the Defendant's waste
disposal drivers were allegedly "subjected to the same or similar
illegal pay practices for similar work throughout the United
States." The Defendant "usually scheduled" waste disposal drivers
"to work five to six days and 45-60 hours per week." The Plaintiffs
"did usually work that many hours on-the-clock per week," which
rendered "nearly all of the off-the-clock time that they performed
for the Defendant," and which was not paid, "time in excess" of
their scheduled time. Accordingly, the Plaintiffs assert that while
they "routinely worked (and continue to work) in excess of 40 hours
per workweek," the Defendant "knowingly and deliberately failed to
compensate them for all hours worked."

The Plaintiffs point to several employment practices which they
claim are unlawful under the FLSA and/or state law. For example,
they contend the Defendant "automatically deducts a 30-minute
meal-period" from each workday. "Due to the time pressures involved
in completing their routes to pick up waste, transporting the waste
to a landfill, and then waiting in line at the dump for their turn
most drivers work through their meal break every day."  Certain
unnamed Plaintiffs allegedly "complained during morning meetings to
their supervisors" about the auto-deduct policy but "were told that
the 30 minutes had to be deducted regardless of whether they
actually took a meal break."

Some Casella supervisors instructed the Plaintiffs to eat while
waiting in line at a landfill while others allegedly told the
Plaintiffs "to work through their meal break so that they could
complete their work." The Defendant is therefore alleged to have
impermissibly deducted a minimum of 2.5 "on-the-clock" hours from
each five-day workweek and three hours from each six-day workweek,
resulting in the Plaintiffs' overtime hours being paid at a
deflated rate. The only alleged example of this practice is that
the "Plaintiff Sibley worked 52.53 hours during the week of Aug. 1,
2021, to Aug. 7, 2021, but -- due to Casella's meal break deduction
-- was only paid for 50.03 hours of work." The Plaintiffs do not
further allege, however, that Plaintiff Sibley worked through any
of her meal breaks in that week.

In addition, the Defendant allegedly fails to compensate the
Plaintiffs "for all hours spent performing mandatory pre-trip and
post-trip vehicle inspections" that occur at the beginning and end
of each shift. This practice results in the "failure to properly
calculate the Plaintiffs' overtime under the FLSA and state
statutes in Maine, Massachusetts, and Vermont."

Finally, the Defendant also pays the Plaintiffs non-discretionary
job bonuses but fails to include these non-discretionary bonuses in
the Plaintiffs' regular rates of pay." The Defendant's practice
"causes a miscalculation of the regular rate of pay for purposes of
overtime compensation." The Defendant's "failure to compensate the
Plaintiffs for all of their hours worked, including overtime hours
at a rate of time and one-half their regular rate, violated (and
continues to violate) the FLSA and relevant state law(s)." "By way
of example, Plaintiff Sibley received a safety bonus for the pay
period of March 18, 2021, through March 24, 2021, in the amount of
$212.44 because she did not have any moving violations during the
preceding four-month period; however, the non-discretionary bonus
was not included in her regular rate and her overtime was
improperly calculated and paid based only off of her hourly pay
rate."

The Plaintiffs allege that the Defendant "knew or recklessly
disregarded" that it was miscalculating the Plaintiffs' regular
rates of pay and not paying earned overtime pay, which renders its
actions "willful violations of the FLSA that were not made in good
faith." Because the Defendant did not pay the Plaintiffs "for all
straight-time hours worked, the Defendant's pay policies and
practices also violate the state laws of Maine, Massachusetts, and
Vermont." The Plaintiffs assert they do not perform work "that
meets the definition of exempt work" under the FLSA or the
applicable state statutes.

III. Analysis

A. Whether Plaintiffs Plausibly Allege an FLSA Overtime Claim

In the FAC, the Plaintiffs allege that the Defendant "usually
scheduled" its waste disposal drivers to work 45-60 hours per week
and thus the Plaintiffs "did usually work that many hours on-the
clock per week."

Judge Reiss opines that these contentions regarding how waste
disposal drivers were "usually scheduled" and how the Plaintiffs
"usually worked," standing alone, are insufficient to state a claim
for relief. The FAC is similarly devoid of specific factual
allegations pertaining to each of the Named Plaintiffs, and it
provides no allegations specific to Plaintiff Messom. The
Plaintiffs' pleading style, which is akin to group pleading,
improperly relies on generalized allegations regarding all waste
disposal drivers employed by Defendant over a number of years
rather than the Named Plaintiffs. The FAC remains too generalized
to support an FLSA claim by any of the Named Plaintiffs. For the
foregoing reasons, Judge Reiss grants the Defendant's motion to
dismiss Count I of the FAC.

B. Whether the Court Should Exercise Supplemental Jurisdiction Over
Plaintiffs' State Law Claims

The Defendant asserts that because the Plaintiffs' FLSA claim
warrants dismissal, the Court should decline to exercise
supplemental jurisdiction over the Plaintiffs' remaining state law
claims in Counts II-IV. The Plaintiffs respond in a footnote that
the sufficiency of their allegations renders this issue moot.

As Judge Reiss has dismissed the Plaintiffs' only federal claim,
she declines to exercise supplemental jurisdiction over their
remaining state law claims.

C. Leave to Amend.

Pursuant to Fed R. Civ. P. 15(a), courts "should freely give leave"
to amend a complaint "when justice so requires." However, "leave
may be denied 'for good reason, including futility, bad faith,
undue delay, or undue prejudice to the opposing party.'" Because at
this juncture she cannot find that any claims asserted by the
Plaintiffs would be futile, because the Defendant does not oppose
leave to amend, and because there is no other ground on which to
deny leave to amend, Judge Reiss grants the Plaintiffs leave to
amend within 20 days of the date of the Opinion and Order
consistent with the Federal Rules of Civil Procedure and the
Court's Local Rules.

IV. Conclusion

For the foregoing reasons, Judge Reiss grants the Defendant's
motion to dismiss. She grants the Plaintiffs leave to amend within
20 days of the date of her Opinion and Order consistent with the
Federal Rules of Civil Procedure and the Court's Local Rules.
A full-text copy of the Court's July 15, 2022 Opinion & Order is
available at https://tinyurl.com/2hk5bc9s from Leagle.com.


CASINO QUEEN: Bids to Amend Scheduling Order in Hensiek Suit Denied
-------------------------------------------------------------------
In the case, TOM HENSIEK, et al., Plaintiffs v. BD. OF DIRECTORS OF
CASINO QUEEN HOLDING CO., INC., et al., Defendants. BD. OF
DIRECTORS OF CASINO QUEEN HOLDING CO., INC., et al.,
Crossclaim/Third-Party Plaintiffs v. CHARLES BIDWILL, III, et al.,
Crossclaim/Third-Party Defendants. CHARLES BIDWILL, III, TIMOTHY J
RAND, Defendants/Counterclaimants, Crossclaim/Third Party
Plaintiffs v. TOM HENSIEK, et al.,
Counterclaim/Crossclaim/Third-Party Defendants. JAMES G. KOMAN,
Crossclaim Plaintiff v. BD. OF DIRECTORS OF CASINO QUEEN HOLDING
CO., INC., et al., Crossclaim Defendants, Case No. 20-cv-377-DWD
(S.D. Ill.), Judge David W. Dugan of the U.S. District Court for
the Southern District of Illinois issued a Memorandum and Order
denying without prejudice:

   a. the Plaintiffs' Motion to Compel Production of Documents
      from Defendants the Board of Directors of Casino Queen
      Holding Co., Inc., the Administrative Committee of the
      Casino Queen Employee Stock Ownership Plan, Robert Barrows,
      Jeffrey Watson, Charles Bidwill, III, James G. Koman, and
      Timothy J. Rand;

   b. Defendants Patricia M. Bidwill and Brian R. Bidwill's
      motion to amend the scheduling order and to join in the
      Moving Defendants' Motion; and

   c. the Motion to Amend Scheduling Order brought by Moving
      Defendants Board of Directors of Casino Queen Holding Co.,
      Inc., the Administrative Committee of the Casino Queen
      Employee Stock Ownership Plan, the Co-Trustees of the
      Casino Queen Employee Stock Ownership Plan, Jeffrey Watson,
      Robert Barrows, James G. Koman, Charles Bidwill, III, and
      Timothy J. Rand.

I. Background

On April 27, 2020, the Plaintiffs filed the purported class action
asserting fiduciary and nonfiduciary claims under Section 502(a)(2)
and 503(a)(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), 29 U.S.C. Section 1132(a)(2) and (a)(3)
related to the Casino Queen Employee Stock Ownership Plan. On Jan.
25, 2021, the undersigned denied a motion to compel arbitration
filed by Defendants Charles Bidwill, III, Timothy J Rand, James G
Koman, and joined by Defendants Watson, Barrows, the Board of
Directors of Casino Queen Holding Co., Inc., and the Administrative
Committee of Casino Queen Employee Stock Ownership Plan. The
Defendants appealed, and the matter was stayed during the pendency
of the appeal. On Oct. 15, 2021, the appeal was voluntarily
dismissed, and the stay of proceedings was lifted.

On Feb. 10, 2022, the Court entered a scheduling and discovery
order, setting the following deadlines: Discovery due by 11/1/2022;
Dispositive Motions due by 6/30/2023; and Motion for Class
Certification due by 9/30/2022. Thereafter, the Plaintiffs filed an
Amended Complaint adding multiple nonfiduciary parties. In turn,
many of the Defendants filed counter, cross, and third-party
claims. As of the date of the Order, some of these new parties have
not been served, and many of the new claims have not yet been
answered. Moreover, recently at least five motions have been filed
directed at the pleadings.

On July 14, 2022, the Court held a hearing on the Motions.

II. Discussion

A. Motion to Amend Scheduling Order

The Moving Defendants ask the Court to bifurcate the case into two
proposed phases:

    a. In Phase I, the parties would conduct fact and expert
discovery and try all aspects of all claims, counterclaims, cross
claims, and third party claims, except the narrow issue of whether
equitable relief is available against nonfiduciary defendants
alleged to have knowingly participated in a nonexempt transaction
in violation of section 1132(a)(3).

     b. In Phase II, any defendants found to have knowingly
participated in a breach in violation of section 1132(a)(3) would
engage in discovery and, if necessary, an evidentiary hearing to
establish whether and to what extent any equitable remedies are
available against them.

To facilitate bifurcation, the Defendants would stipulate that,
during Phase I summary judgment and/or trial, they will reserve any
defenses related to available equitable remedies for Phase II.

The Defendants have two primary reasons for seeking bifurcation: tT
alleviate an alleged burden on the Court and to avoid extensive
tracing discovery. They argue that the equitable remedies issue is
the last issue in a multi-step liability determination and is not
relevant to any of the numerous other claims brought in the matter.
They further contend that without bifurcation they will have to
undergo "a sprawling inquiry into ten years'-worth of personal
financial information", and the Court will subsequently need to
devote a large amount of resources to resolve the issue. The
Plaintiffs are amenable to a bifurcated trial but oppose
bifurcating discovery, arguing that a discovery delay would cause
irreversible prejudice to them.

Judge Dugan holds that the potential harms of bifurcated discovery
outweigh the potential prejudice to the Defendants. Moreover,
issues related to the scope of discovery can be addressed through
the Court's discovery procedures and at this time there is no
reason to believe that Court could not implement appropriate
instructions to mitigate potential prejudice that may arise during
pre-trial proceedings or at trial.

While the Plaintiffs are amenable to bifurcating the limited issue
of equitable relief against nonfiduciary defendants at trial, Judge
Dugan finds this request to be premature considering the current
posture of the case. Specifically, a handful of alleged
nonfiduciary defendants have not yet been served. Moreover, many of
the parties have recently filed motions directed at the pleadings.
The resolution of these pending issues may impact the scope of
these proceedings.

The Motions to Amend the Scheduling Order are therefore denied
without prejudice. The parties are granted leave to seek
bifurcation of the narrow issue of equitable relief against
nonfiduciary defendants once the new defendants have been served
and the motions directed at the pleadings have been ruled on.

B. Motion to Compel

By their Motion to Compel, the Plaintiffs seek to compel the
production of multiple documents related to the Plaintiffs' Third
Set of Requests for Production directed at Defendants the Board of
Directors of Casino Queen Holding Co., Inc., the Administrative
Committee of the Casino Queen Employee Stock Ownership Plan, Robert
Barrows, Jeffrey Watson, Charles Bidwill, III, James G. Koman, and
Timothy J. Rand. The Defendants pose various objections to these
requests, including that some of the requested documents are
related to the equitable remedy of tracing, which Defendants sought
to bifurcate as further detailed above.

In light of his denial of the Defendants' Motions to Amend, and for
the reasons discussed at the July 14th hearing, Judge Dugan directs
the parties to Meet, Confer, and Report. Specifically, the parties
are ordered to meet and conduct a discovery conference by Aug. 15,
2022 to discuss unresolved discovery issues. By Aug. 29, 2022 the
parties will submit a joint written discovery report to the Court
at DWDpd@ilsd.uscourts.gov. The report will by signed by all
parties, and detail the date and duration of, and the medium used
for the discovery conference.

The report will further identify and describe: (1) all discovery
areas or issues discussed by the parties during the discovery
conference; (2) the discovery areas or issues resolved; and (3) the
specific discovery or issues not resolved or still in dispute. For
any issues not resolved or still in dispute, the parties are
directed to specify in a clear and concise fashion the exact basis
or bases for the objection to the discovery request and the
proponent's response thereto. Additionally, the parties will
include copies of the complete discovery request at issue and the
corresponding answer or objection. The parties are also reminded
that the Court must presumptively award expenses, including
attorney's fees, to the prevailing party of discovery disputes.

Judge Dugan is also concerned by the various allegations of the
appropriateness of privilege logs. The Federal Rules of Civil
Procedure are specific and encompassing and, if studied and
applied, more often than not supply the solution to discovery
related conflicts without the Court's involvement. The parties
would do well to review Rules 26 and 37 prior to seeking judicial
intervention on matters specifically covered or required by the
Federal Rules.

C. Other Pending Issues

a. Discovery and Dispositive Motion Deadlines

The Plaintiffs' Deadline for filing a Motion for Class
Certification remains set for 9/30/2022. Once class certification
is decided, the Court will schedule an additional status conference
with the parties to address entering a new discovery and scheduling
order. Accordingly, the following current deadlines in the Court's
Scheduling Order are vacated: Close of Fact Discovery: 11/1/2022;
and Dispositive Motions due by 6/30/2023. These deadlines will be
reset after class certification is decided. At the status
conference, the Court will also determine whether a bifurcated
briefing schedule for dispositive motions may be appropriate in
light of the parties' representations concerning the limited issue
of equitable relief against nonfiduciary defendants alleged to have
knowingly participated in a nonexempt transaction in violation of
section 1132(a)(3).

Having vacated the discovery deadline, Judge Dugan observes that
this directive moots some, but not all, of the issues raised in the
recently filed Joint Motion to Amend Scheduling Order to Extend
Discovery Deadlines for a Protective Order, to Shorten Time to
Respond, and For an Expedited Hearing filed by Defendants Charles
Bidwill, III, Timothy J. Rand, James G. Koman, Jeffrey Watson,
Robert Barrows, the Board of Directors of Casino Queen Holding
Company, Inc., and the Administrative Committee of the Casino Queen
Employee Stock Ownership Plan. In the interests of judicial
efficiency, he denies, without prejudice, the Joint Motion. To the
extent any of the unresolved issues in that Motion relate to the
Plaintiff's Motion to Compel, the parties are directed to discuss
these issues at their discovery conference. Should any issues
remain unresolved after that discovery conference, the parties will
include those specific unresolved issues in their joint discovery
report submitted to the Court. However, if the parties require any
issues in the Motion to be ruled on prior to the parties' discovery
conference, Defendants will file a new motion highlighting those
specific issues for the Court's consideration.

b. Plaintiff's Motion for Extension of Deadline to Serve Amended
Complaint

Judge Dugan also grants the Plaintiffs' Motion for Extension of
Deadline to Serve Amended Complaint and Summonses on New
Defendants. He explains that Fed. R. Civ. P. 4(m) permits the Court
to extend the time for service for an appropriate period and for
good cause shown. He finds it appropriate to exercise discretion,
and for good cause shown, the Plaintiffs are granted leave under
Fed. R. Civ. P. 4(m) to serve the New Defendants by Sept. 12,
2022.

c. Corrections to the Docket

Upon review of the docket, it appears Defendant Charles Bidwill,
III's name is misspelled on the docket sheet. The Clerk of Court is
directed to change Charles Bidwell, III to Charles Bidwill, III on
the docket sheet. Also, Defendants John & Jane Does 1-20 do not
appear in the First Amended Complaint. The Clerk of Court is
therefore DIRECTED to terminate Defendants John & Jane Does 1-20
from the docket sheet.

d. Clarification on Party Defendants

The First Amended Complaint added as a Defendant the Co-Trustees of
the Casino Queen Employee Stock Ownership Plan. Judge Dugan
acknowledges that Defendants Jeffrey Watson and Robert Barrows have
previously been referred to as the ESOP Co-Trustees. However,
Defendants Watson and Barrows also remain as named Defendants in
the First Amended Complaint separate from the newly named
Co-Trustees. Accordingly, the Plaintiffs are directed to file a
status report with the Court by Aug. 15, 2022 clarifying the
identities of the Co-Trustees of the Casino Queen Employee Stock
Ownership Plan as named Defendants in the First Amended Complaint.

e. Case Caption

Finally, to assist with the efficiency and organization of these
claims, Judge Dugan finds it appropriate to use an abbreviated case
caption. Accordingly, all future filings should use the abbreviated
case style provided. A copy of the abbreviated case caption will be
attached as an exhibit to the Order for the convenience of the
parties. Moreover, if a filing only pertains to one specific
crossclaim, third-party action, or counterclaim, the parties are
granted leave to use a further abbreviated case caption to refer
only to the relevant action. Notwithstanding the foregoing, in each
document filed with the Court, the counsel should use the parties'
actual names or their most descriptive designations to refer to the
parties in the introduction or heading of each document. Once the
moving or responding parties are clearly identified, the parties
may then use more generalized terms to refer to the parties as may
be appropriate.

III. Conclusion

Having considered the briefing and arguments, and for the reasons
stated and on the record at the hearing, Judge Dugan denies without
prejudice the Motions to Amend Scheduling Order and the Motion to
Compel. He directs the parties to Meet, Confer, and Report as
further detailed in his Order.

A full-text copy of the Court's July 15, 2022 Memorandum & Order is
available at https://tinyurl.com/2zrm8k6c from Leagle.com.


COLORADO: Seeks Extension of Time to Respond to Class Cert Bid
--------------------------------------------------------------
In the class action lawsuit captioned as DION ANTHONY v. COLORADO
DEPARTMENT OF CORRECTIONS COLORADO STATE PENITENTIARY, and RAEANNE
WILL, Case No. 1:20-cv-01484-DDD-SKC (D. Colo.), the Defendants
Colorado Department of Corrections, Colorado State Penitentiary,
and Raeanne Will file motion for extension of time to respond to
Plaintiff's motion to sanction them and class certification
motion.

On June 16, 2022, the Plaintiff filed two pleadings: "Motion to
Sanction Defendants" and "Class Certification Motion."

The Defendants request an extension of time of until 30 days after
the Court issues a ruling on the Motion to Dismiss to respond to
the June 16 Motions.

The Plaintiff is a pro se prisoner presently incarcerated at
Sterling Correctional Facility (CSP), who has brought this lawsuit
against the Colorado Department of Corrections (CDOC), Colorado
State Penitentiary (CSP), and Raeanne Will.

Colorado State Penitentiary (commonly abbreviated CSP) is a Level
V maximum security prison in the U.S. state of Colorado. The

The Colorado Department of Corrections is the principal department
of the Colorado state government that operates the state prisons.

A copy of the Defendant's motion dated July 7, 2022 is available
from PacerMonitor.com at https://bit.ly/3voaor5 at no extra
charge.[CC]

The Defendants are represented by:

          Rebekah Ryan, Esq.
          ASSISTANT ATTORNEY GENERAL
          CIVIL LITIGATION & EMPLOYMENT SECTION
          1300 Broadway, Tenth Floor
          Denver, CO 80203
          Telephone: (720) 508-6623
          Facsimile: (720) 508-6032
          E-mail: Rebekah.Ryan@coag.gov

CREDIT SUISSE: Scheduling Order Entered in Antitrust Litigation
---------------------------------------------------------------
In the class action lawsuit captioned as FTC Capital GMBH et al v.
Credit Suisse Group AG, et al., Case No. :18-cv-01540-NRB
(S.D.N.Y.), the Hon. Judge Naomi Reice Buchwald entered an
scheduling order as follows:

  1. Deadline for the Plaintiffs to             Aug. 1, 2022
     provide  the Defendants with a
     copy of any proposed amended
     complaint that they intend to
     file as of right or seek leave
     to file:

  2. Deadline for Defendants to                 Aug. 1, 2022
     propose custodians and search
     terms for their own documents
     responsive to Discovery
     Requests:

  3. Deadline to amend for Plaintiffs           Aug. 16, 2022
     with amendment as of right or to
     file pre-motion letters seeking
     leave to amend, including to add
     or drop parties.

The Order relates to all cases in RE: LIBOR-BASED FINANCIAL
INSTRUMENTS ANTITRUST LITIGATION.

Credit Suisse is a global investment bank and financial services
firm founded and based in Switzerland.

A copy of the Court's order dated July 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3OnayFO at no extra charge.[CC]

DAYBREAK SOLAR: Cunningham Suit Moved to Northern District of Texas
-------------------------------------------------------------------
Judge Max O. Cogburn, Jr., of the U.S. District Court for the
Western District of North Carolina, Charlotte Division, transfers
the case, CRAIG CUNNINGHAM, Plaintiff v. DAYBREAK SOLAR POWER, LLC,
Defendant, Docket No. 3:22-cv-9-MOC-DCK (W.D.N.C.), to the U.S.
District Court for the Northern District of Texas.

I. Background

The matter is before the Court on the Defendant's Motion to Dismiss
the Complaint. Plaintiff Cunningham filed a complaint with the
Court on Jan. 7, 2022, under the Telephone Consumer Protection Act
("TCPA") and the North Carolina analogue to the federal law, the
North Carolina Telephone Solicitations Act ("NCTSA") against
Defendant Daybreak. The Plaintiff alleges that he received a phone
call on Dec. 23, 2021 at his personal phone number. He alleges that
there was a "pop" sound at the beginning of the call, after which a
voice said, "Hi, this is Brian Lee calling on behalf of
The-Solar-Project.com."

The Plaintiff then alleges that someone named Yesenia continued the
conversation with him. He alleges that Yesenia is an employee of
the Defendant and that she asked him questions about his marital
status and his credit score. Then, the Plaintiff alleges that after
he had "multiple calls with Daybreak  employees" to ascertain the
origin of the solicitation call, the Defendant or its agents
"claimed that the Plaintiff must have gone on 'some website' but
were unable or unwilling" to point to a specific website that the
Plaintiff visited.

The Plaintiff contends that other individuals have complained about
receiving "telemarketing" calls from the Defendant, citing a single
Better Business Bureau ("BBB") posting about the company and a
single review from Glassdoor (an employment website) posting
supposedly written by a prior employee as evidence of his claim.
Finally, the Plaintiff argues that he did not provide "prior
express written consent to receive the calls" and that he and
"other call recipients" were harmed by the call because they were
(1) "temporarily deprived of legitimate use of their phones" while
"their phone lines were tied up during the telemarketing calls" and
(2) "their privacy was improperly invaded."

The Defendant has filed a motion to dismiss pursuant to the Federal
Rules of Civil Procedure, specifically citing Rule 12(b)(3) for
improper venue, Rule 12(b)(6) for failure to state a plausible
claim for relief, and 12(b)(1) for lack of federal subject matter
jurisdiction due to the Plaintiff's failure to plead facts
demonstrating standing under Article III of the United States
Constitution. When considering a motion to dismiss that arises
under concurrent provisions of the Federal Rules of Civil
Procedure, courts first consider venue and, if found improper, will
then leave the other elements of the motion to be decided on the
merits in the court with proper venue.

II. Discussion

Rule 12(b)(3) allows courts to dismiss an action for improper
venue. Alternatively, a court has discretion to transfer a case
brought before it in an improper venue to a proper one under 28
U.S.C. Section 1406(a) and 28 U.S.C. Section 1404(a) "if it be in
the interest of justice." Moreover, a court "may sua sponte
consider transfer" even if it has not been specifically raised by
the parties. Transfer is allowable "for the convenience of parties
and witnesses or in the interest of justice" to "any other district
or division where it might have been brought or to any district or
division to which all parties have consented."

In Scholl v. Sagon RV Supercenter, LLC, 249 F.R.D. 230, 239
(W.D.N.C. 2008), in deciding whether to transfer or dismiss a case
for improper venue, a court balances certain factors to find if the
transfer is "in the interest of justice." Those factors include:
(1) plaintiff's initial choice of forum; (2) the residence of the
parties; (3) the relative ease of access of proof; (4) the
availability of compulsory process for attendance of witnesses and
the costs of obtaining attendance of willing witnesses; (5) the
possibility of a jury view; (6) the enforceability of a judgment,
if obtained; (7) the relative advantages and obstacles to a fair
trial;(8) other practical problems that make a trial easy,
expeditious, and inexpensive; (9) the administrative difficulties
of court congestion; (10) the interest in having localized
controversies settled at home; and (11) the avoidance of
unnecessary problems with conflict of laws.

A court must balance these factors and make the assessment
qualitatively, not merely quantitatively. If the court determines
that it is the improper venue, it will then select a forum that
satisfies the test under 28 U.S.C. Section 1391(b) for proper venue
and, in the court's view, is the best option under the factors set
forth.

a. Rule 12(b)(3) Analysis

The Defendant argues that the Western District of North Carolina is
an improper venue for this claim, and therefore must be dismissed
to be re-filed elsewhere. Judge Cogburn agrees with the Defendant
that the Court is an improper venue, but rather than dismiss the
action, he exercises discretion to transfer venue, as both parties
have consented to transfer in their pleadings. Moreover, he
declines to exercise supplemental jurisdiction over the Plaintiff's
NCTSA claim and sever the action. Rather, he transfers the
Plaintiff's claim in its entirety, including that arising under the
NCTSA, to the Northern District of Texas.

The Plaintiff bears the burden of alleging a sufficient and
non-conclusory factual basis to rebut the Defendant's challenge to
venue under Section 1391(b)(1)-(2), but he has not met that burden.
Plaintiff alleges no facts to support his contention that venue is
proper under the law in this district. He does not allege and
offers no support of even an assumption of an allegation that this
"civil action in question" arose in North Carolina, nor does he
show that "a substantial part of the events giving rise to the
claim" occurred in North Carolina. The Plaintiff offers no evidence
of the Defendant doing business in North Carolina or otherwise
"purposefully availing" themselves of the resources or benefits of
North Carolina.

Further, the Plaintiff does not allege that the call originated in
North Carolina, or that his claim arises out of any conduct by the
Defendant in North Carolina. Even under his potential class action
claim, the Plaintiff alleges no actual, specific instances of
prospective class members receiving calls in North Carolina; that
claim is conjecture at most. This general lack of support,
according to Judge Cogburn, is fatal to the Plaintiff's claim of
proper venue in this district. The Court cannot assume that it has
personal jurisdiction over an entity or that it is the proper venue
for a lawsuit based on bald claims alone.

b. Transfer Analysis

Given that the Court is an improper venue for the Plaintiff's
claims, Judge Cogburn must now decide whether to grant the
Defendant's Motion to Dismiss or to exercise its discretion to
transfer the case to a proper venue. Based on the 11 factors set
forth in Scholl, Judge Cogburn chooses to transfer the case to the
Northern District of Texas, rather than dismiss it entirely. He
says, the only factor that seems to squarely favor the Plaintiff
and would keep the case in this district is factor one: The
Plaintiff's initial choice of forum. The rest of the factors either
favor transfer to Texas or do not favor either forum.

Since the Court may consider extrinsic evidence in determining a
proper venue, and the Defendant has supplied the Court with
uncontroverted evidence that the Plaintiff's permanent residence,
by his own admission, is in Texas, Judge Cogburn finds that the
Plaintiff's permanent residence is in Texas. Thus, he finds that
Factor two is in favor of transfer. Factors three, four, seven,
eight, and ten favor transfer as well, given that both parties
reside in Texas. Factors five, nine, and eleven are likely neutral
given the little information supplied by either party regarding
transfer. Factor six favors transfer as well because it would be
much easier for a Texas court to enforce a judgment against a Texas
plaintiff or defendant given the stronger ties of those parties
with that state. Finally, it is important to note that both parties
have consented to the transfer in their pleadings.

The final question is where the Court should transfer thw matter,
which turns on where the parties reside. The Defendant resides in
the Northern District of Texas, and through the analysis set forth,
the Plaintiff's residence is in Texas as well. Therefore, Judge
Cogburn applies Section 1391(b)(1) to choose the proper venue.
Under that rule, since both parties reside in Texas, the proper
district is the district in which the Defendant resides: The
Northern District of Texas. Since the Court elects to transfer the
case to the Northern District of Texas, it leaves the issues of the
12(b)(6) motion to that court.

III. Conclusion & Order

For the foregoing reasons, Judge Cogburn finds that the matter
should be transferred to the Northern District of Texas. The action
is transferred to the U.S. District Court for the Northern District
of Texas. The Clerk is instructed to terminate the action in this
district.

A full-text copy of the Court's July 13, 2022 Order is available at
https://tinyurl.com/yj22uuax from Leagle.com.


DETROIT EDISON: Settlement Deal OK'd in Nolan Suit
--------------------------------------------------
In the class action lawsuit captioned as LESLIE D. NOLAN, v.
DETROIT EDISON COMPANY, DTE ENERGY CORPORATE SERVICES, LLC, DTE
ENERGY COMPANY RETIREMENT PLAN, DTE ENERGY BENEFIT PLAN
ADMINISTRATION COMMITTEE, POSLER, QUALIFIED PLAN APPEALS COMMITTEE,
MICHAEL S. COOPER, RENEE MORAN and JEROME HOOPER, Case No.
2:18-cv-13359-DML-SDD (E.D. Mich.), the Hon. Judge David M. Lawson
entered an order granting the plaintiff's unopposed motion and
amended motion to certify a settlement class and for preliminary
approval of the proposed settlement agreement and procedure for
providing class notice.

  -- The proposed settlement agreement is preliminarily
     approved, subject to objections by absent class members and
     except for the determination of the attorney's fees and
     costs.

  -- Pursuant to Federal Rule of Civil Procedure 23(b)(1), the
     following settlement class is conditionally certified in
     this case:

     "All DTE employees who, in 2002, elected to transfer from
     the DTE Traditional Plan to the DTE Cash Balance Plan, and
     the beneficiaries of any deceased such DTE employees."

  -- The counsel of record for the named plaintiff, namely
     attorneys Eva T. Canterella, Robert P. Geller, and Patricia
     A. Stamler, are appointed as counsel for the designated
     settlement class. Plaintiff Leslie Nolan is appointed as
     the class representative.

  -- On or before July 15, 2022, the defendants shall provide
     notice of this proposed class settlement to the appropriate
     state and federal authorities. The defendants must file
     proof that it has provided the required notice with the
     Court, in compliance with the Class Action Fairness Act.

  -- The plaintiff's counsel or their designated representative
     shall cause notice of the proposed settlement to be given
     to class members in the following manner:

  -- The expenses of printing and mailing and publishing all
     notices required hereby shall be paid by the defendants.

  -- On or before October 4, 2022, plaintiff's counsel must file
     a motion for final approval of the settlement identifying
     absent class members who object. The defendant's response,
     if the motion is opposed, must be filed on or before
     October 18, 2022.

  -- A hearing shall be held at 1:30 p.m. on Tuesday, October
     25, 2022 in Room 767 of the Theodore Levin United States
     Courthouse, 231 West Lafayette Blvd., Detroit, Michigan
     48226, to consider any objections to the settlement
     agreement and to determine whether the settlement agreement
     should be finally approved as having been negotiated in
     good faith and as being fair, reasonable, and in the best
     interest of the class members.

  -- No class member shall be entitled to be heard or entitled
     to contest the approval of the terms and conditions of the
     proposed settlement or the judgment to be entered pursuant
     thereto approving the same, or the plaintiff's counsel's
     fee, expense and incentive award application, unless, on or
     before October 11, 2022, such person: (a) has filed with
     the Clerk of Court a notice of such person's intention to
     appear, together with a statement that indicates the basis
     for such opposition, and (b) has served copies of such
     notice and statement, together with copies of any papers
     that such person has filed with the Clerk of the Court and
     each parties' counsel at the following addresses:

          Counsel for the Plaintiff, are:

          Eva T. Cantarella, Esq.
          Robert P. Geller, Esq.
          Patricia A. Stamler, Esq.
          HERTZ SCHRAM PC
          1760 S. Telegraph Rd.
          Bloomfield Hills, MI 48302
          Telephone: 248-335-5000
          E-mail: ecantarella@hertzschram.com
                  rgeller@hertzschram.com
                  pstamler@hertzschram.com


          Counsel for the Defendant, are:

          Christopher K. Meyer, Esq.
          Mark D. Blocker
          Benjamin I. Friedman
          Sidley Austin LLP
          One South Dearborn Street
          Chicago, IL 60603
          Telephone: (312) 853-0523
          E-mail: cmeyer@sidley.com
                  mblocker@sidley.com
                  benjamin.friedman@sidley.com

  -- The applications for incentive awards, attorney's fees, or
     reimbursable expenses under Rule 23(h) must be filed on or
     before September 6, 2022. Counsel must provide notice to
     class members in accordance with Fed. R. Civ. P. 23(h)(1).

  -- The class counsel shall be responsible for maintaining a
     file of all responses to the notice of settlement and any
     and all other written communications received from the
     class members. Class counsel immediately shall provide
     copies of such responses and communications to defendants'
     counsel.

A copy of the Court's order dated July 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3P91q8N at no extra charge.[CC]

DGS CONSTRUCTION: Md. App. Flips Judgments in Amaya & Rojas Suits
-----------------------------------------------------------------
In the cases, MARIO ERNESTO AMAYA, ET AL. v. DGS CONSTRUCTION, LLC,
ET AL., JUAN CARLOS TERRONES ROJAS, Et Al. v. F.R. GENERAL
CONTRACTORS, INC., ET AL., Case Nos. 14, 17 September Term, 2021
(Md. App.), the Court of Appeals of Maryland issued an Opinion
reversing the judgment of the Court of Special Appeals.

I. Introduction

In two related cases, construction workers brought actions for
unpaid wages and overtime wages under the Maryland Wage and Hour
Law ("MWHL"), Md. Code Ann., Lab. & Empl. (1991, 2016 Repl. Vol.)
("LE") Sections 3-401 to 3-431, and the Maryland Wage Payment and
Collection Law ("MWPCL"), LE Sections 3-501 to 3-509, and claims
for unjust enrichment for the time that they waited and traveled
between a parking area where their employers directed them to park
and a construction site where they performed physical labor. The
workers accessed the construction site via buses, supplied by the
general contractor for the project, that took them from the parking
area to the construction site and back. They were not compensated
for wait and travel time, either coming or going from the parking
area, which in total averaged approximately two hours per day.

The cases involve the question of whether a federal law which
provides that traveling to work is not a compensable activity has
been adopted or incorporated into the MWHL, the MWPCL, and the Code
of Maryland Regulations ("COMAR") and the related question of
whether what constitutes "work" under Maryland law for which wages
are due to an employee is limited to what constitutes "compensable
work" under federal law.

Under the federal Portal-to-Portal Act ("PPA"), 29 U.S.C. Sections
251 to 262, which is an amendment to the Fair Labor Standards Act
("FLSA"), 29 U.S.C. Sections 201 to 219, certain activities are not
compensable, including (1) walking, riding, or traveling to and
from the actual place of performance of the principal activity or
activities which such employee is employed to perform, and (2)
activities which are preliminary to or postliminary to said
principal activity or activities, which occur either prior to the
time on any particular workday at which such employee commences, or
subsequent to the time on any particular workday at which he
ceases, such principal activity or activities. If the PPA has been
adopted or incorporated into Maryland law, then, in these cases,
the workers' wait and travel time between the parking lot and the
construction site would not be compensable.

In addition, the workers raise the question of whether under COMAR
09.12.41.10 a "prescribed workplace" or "worksite" includes a place
that employees are required by an employer to report. In other
words, if the PPA's prohibition on compensation for an employee's
travel time has not been adopted into Maryland law, we must
determine under Maryland law whether the workers would be entitled
to compensation for wait and travel time, if their employers indeed
required them to report to the parking area and use it as the sole
means of accessing the construction site. If, however, the workers
were not required to report to the parking area, then regardless of
the non-applicability of the PPA, under COMAR 09.12.41.10, the
workers would not be entitled to compensation for the wait and
travel time.

In one of the two cases, which the Court of Appeals refers to as
the Amaya case, the trial court granted summary judgment in favor
of the employer, ruling that the General Assembly grafted the
definition of "employ" from the FLSA into the MWHL and
correspondingly the PPA was also grafted into the MWHL.
Additionally, the trial court ruled that the workers did not
perform "work" at the parking area, and that the parking area was
not a "worksite" for purposes of the MWHL claim. In the second
case, which we will refer to as the Rojas case, during a jury
trial, the trial court granted the employers' motion for judgment
made at the close of evidence offered by the workers, ruling that
no reasonable jury could find that the workers performed "principal
or integral activities" at the parking area, that the workers were
traveling during work hours, or that they were traveling from one
worksite to another.

In each case, the Court of Special Appeals affirmed the trial
court's judgment and held that the MWHL and related COMAR
regulations incorporate the FLSA, the PPA, and relevant Code of
Federal Regulations ("CFR") into Maryland law and that it is not
necessary "for Maryland to specifically express that we have
adopted an amendment to a federal statute where the Legislature has
enacted a state's equivalent of the federal statute." The Court of
Special Appeals stated that "incorporating statutory provisions by
reference, partially or entirely, into legislation has been long
recognized as an acceptable practice on both the state and federal
levels unless prohibited by constitutional provisions." It
concluded that "the MWHL and its regulations must be read as
interrelated parts of the statutory scheme that includes the FLSA,
the Portal-to-Portal Act and accompanying regulations."

In addition, the Court of Special Appeals held that under Maryland
law, "to determine what constitutes a worksite, the Court examines
not whether the employee was required to report to a location, but
instead whether the employee performed part of their job function
at the location," and concluded that, under that analysis, the
workers did not perform job functions at the parking lot and thus
the parking lot was not a worksite.

With respect to the Rojas case, the Court of Special Appeals
concluded that the employers moved for judgment on all claims,
which included the unjust enrichment claim, and that the trial
court properly ruled in favor of the employers on the claim. The
Court of Special Appeals determined that the trial court properly
dismissed all of the claims, including the unjust enrichment claim,
as the trial court found that the workers "did not perform
compensable services or work when parking and riding the shuttle."

The workers filed in the Court of Appeals petitions for a writ of
certiorari, which it granted.

II. Background

A. Amaya

In 2014, DGS Construction, LLC, d/b/a Schuster Concrete
Construction ("DGS"), Respondent, entered into a subcontract with
The Whiting-Turner Contracting Co., the general contractor, to
perform structural concrete work on construction of the MGM
National Harbor resort and casino in Prince George's County. DGS
worked on the MGM Project from November 2014 through approximately
November 2016, employing numerous construction workers. In 2015,
DGS employed Mario Ernesto Amaya and Jose Norland Gonzalez,
Petitioners, non-managerial construction workers, to perform
construction work on the MGM Project.

To gain access to the MGM Project construction site, DGS directed
workers, including Amaya and Gonzalez, to park at the Rosecroft
Raceway, an offsite parking area located approximately 2.3 miles
from the MGM Project construction site,5 and then ride buses
provided by Whiting-Turner to and from the construction site.
Rosecroft was approved by MGM, the Project's owner, as a parking
area for the MGM Project and was under Whiting-Turner's control
during construction. Whiting-Turner provided parking at Rosecroft
to subcontractors' employees who drove to work because there was no
location to park at the MGM Project site. MGM and Whiting-Turner
had adopted a "good neighbor" policy to avoid disruptions, such as
increased traffic, in the community surrounding the MGM Project
site. As part of that policy, Whiting-Turner leased Rosecroft and
enforced off-site parking requirements.

Amaya and Gonzalez were not required to pay for parking at
Rosecroft or for use of the bus to and from Rosecroft to the
construction site. When they reached the MGM Project site, Amaya
and Gonzalez went through security and then clocked in. They were
not compensated for the time they spent parking, waiting for the
bus, traveling on the bus to and from the MGM Project site, or
passing through security upon entry to or departure from the MGM
Project Site. During an average shift, the time spent waiting, in
transit, and passing through security resulted in approximately two
hours of uncompensated time. This time was not recorded in any way
by DGS.

On Sept. 15, 2017, Amaya and Gonzalez filed in the Circuit Court
for Prince George's County a class action complaint against DGS on
behalf of themselves and a class of similarly-situated DGS
employees for unpaid wages and overtime wages for wait and travel
time under the MWHL and the MWPCL. The complaint included three
counts: violation of the MWPCL, violation of the MWHL, and unjust
enrichment. Amaya and Gonzalez later filed an amended complaint
adding Daniel G. Schuster, Respondent, as a defendant.

On Feb. 15, 2019, Amaya and Gonzalez filed a motion for class
certification. After a hearing, the circuit court bifurcated the
case and reserved issuing a ruling on the class certification
request until after a determination on the issue of liability. On
July 1, 2019, DGS filed a motion for summary judgment. On the same
day, Amaya and Gonzalez filed a motion for partial summary judgment
and request for a hearing. Each party filed an opposition to the
other's motion. On Aug. 22, 2019, the circuit court held a hearing
and, at the conclusion of the hearing, took the pending motions
under advisement for issuance of a written decision.

On Nov. 5, 2019, the circuit court issued a memorandum opinion and
order, granting DGS's motion for summary judgment, denying Amaya's
and Gonzalez's motion for partial summary judgment, and entering
judgment as a matter of law in favor of DGS. Amaya and Gonzalez
appealed, and in a reported opinion, the Court of Special Appeals
affirmed the circuit court's judgment.

On April 13, 2021, Amaya and Gonzalez petitioned for a writ of
certiorari, raising the following three issues:

     1. Do the MWHL, the MWPCL and COMAR adopt and incorporate the
FLSA, PPA and CFR sections where the Maryland statutes, regulations
and legislative history never adopted or incorporated them?

     2. Is the definition of work under the MWHL, MWPCL and COMAR
limited to what is considered compensable work under the PPA,
despite the Maryland General Assembly and regulators never
incorporating the federal laws or otherwise saying so?

     3. Does a worksite or prescribed workplace under COMAR
09.12.41.10 include a location that an employer directs its
employees to report?

On June 22, 2022, the Court of Appeals granted the petition.

B. Rojas

As explained, Whiting-Turner was the general contractor for the MGM
Project. In this case, Commercial Interiors, Inc., Respondent, is a
drywall contractor and was a subcontractor to Whiting-Turner. F.R.
General Contractors, Inc., Respondent, a drywall contractor, was a
subcontractor to Commercial and employed workers to install drywall
and ceilings. Juan Carlos Terrones Rojas and Jose Carlos Rueda
Torres, Petitioners, were employed by F.R. to perform carpentry
work at the MGM Project. Rojas and Torres worked at the MGM Project
construction site for approximately two months, from November 2015
to January 2016.

Both Whiting-Turner and MGM directed F.R.'s and Commercial's
non-managerial workforce to park at the Rosecroft parking area. To
gain access to the MGM Project construction site, Rojas and Torres
parked at Rosecroft and then took a bus provided by Whiting-Turner.
Rojas and Torres were not compensated for the time spent waiting,
traveling on the buses, and passing through security, which
amounted to approximately an hour and a half to two hours each day,
and F.R. and Commercial did not track the time.

On April 5, 2018, Rojas and Torres filed in the Circuit Court for
Prince George's County a class action complaint on behalf of
themselves and a class of similarly-situated F.R. and Commercial
employees for unpaid wages and overtime wages for wait and travel
time under the MWHL and the MWPCL. The complaint included three
counts: violation of the MWPCL, violation of the MWHL, and unjust
enrichment. F.R. and Commercial filed an answer.

On July 12, 2019, F.R. and Commercial filed a motion for summary
judgment. On July 24, 2019, Rojas and Torres filed a motion for
partial summary judgment. Both parties filed oppositions. On Aug.
21, 2019, the circuit court held a hearing. The circuit court
denied both Rojas's and Torres' motion for partial summary judgment
and F.R.'s and Commercial's motion for summary judgment.

From Aug. 26 to 29, 2019, a jury trial was held. At the conclusion
of Rojas's and Torres's case, F.R. and Commercial moved for
judgment. The circuit court granted the motion for judgment. Rojas
and Torres noted an appeal, and on March 2, 2021, in an unreported
opinion, the Court of Special Appeals affirmed the circuit court's
judgment.

On April 20, 2021, Rojas and Torres petitioned for a writ of
certiorari, raising the following four issues (the first three of
which are identical to the issues raised in Amaya):

      1. Do the MWHL, the MWPCL and COMAR adopt and incorporate the
Fair Labor Standards Act (FLSA), PPA and CFR sections where the
Maryland statutes, regulations and legislative history never
adopted or incorporated them?

      2. Is the definition of work under the MWHL, MWPCL and COMAR
limited to what is considered compensable work under the PPA,
despite the Maryland General Assembly and regulators never
incorporating the federal laws or otherwise saying so?

      3. Does a worksite or prescribed workplace under COMAR
09.12.41.10 include a location that an employer directs its
employees to report?

      4. Did the Court of Special Appeals err in importing the
federal PPA compensability requirements in determining whether a
benefit was conferred on Respondents for the purpose of proving a
Maryland common law unjust enrichment claim, especially when the
Respondents failed to move for judgment on that claim?

On June 22, 2021, the Court of Appeals granted the petition.

III. The Parties' Contentions

A. Whether the PPA Has Been Adopted and Incorporated into Maryland
Law and Whether the Definition of "Work" Under Maryland Law is
Limited to What Constitutes "Compensable Work" Under the PPA

The Petitioners contend that the PPA has never been adopted into
Maryland law. They argue that, since being enacted and amended over
the years, neither the MWHL nor the MWPCL makes "a single
reference, citation, or mention of the PPA." They assert that,
although certain federal regulations relating to the FLSA have been
expressly incorporated into COMAR, none of the sections relating to
the PPA have ever been incorporated and instead that COMAR
09.12.41.10 describing hours of work and when travel can be
included in hours of work was promulgated. The Petitioners maintain
that the PPA's exclusion of compensation is in contravention of the
remedial nature of the MWHL and MWPCL.

The Petitioners contend that Maryland law makes compensable all
hours an employee is on duty, all hours that employees are required
by an employer to be at a prescribed workplace, and travel between
worksites. They assert that nothing in the MWHL, MWPCL, or related
COMAR regulations indicate that "Hours of Work," as defined by
COMAR 09.12.41.10, is limited to principal activities that an
employee performs while working for an employer. Petitioners argue
that "given the absence of any reference, express or otherwise, to
the PPA's incorporation, there is no justification for 'grafting'
the PPA's statutory text into the MWHL or the MWPCL as the" circuit
court and Court of Special Appeals did in the cases.

DGS responds that the Court of Special Appeals correctly concluded
that the MWHL and its regulations are interrelated parts of a
statutory scheme that includes the FLSA, the PPA, and corresponding
federal regulations. It contends that the purposes of the FLSA, as
amended by the PPA, and the MWHL are the same, and that the General
Assembly mirrored the MWHL on the FLSA. DGS maintains that, when
the General Assembly enacted the MWHL, it did so in the context of
the history of the FLSA and the PPA and "knowing that incorporating
the FLSA into the MWHL by general reference also meant
incorporating the PPA regarding compensable time unless they
expressly stated otherwise." As such, it contends that the MWHL and
COMAR must be read to include the PPA's requirement that an
employer is not required to pay an employee wages for traveling to
and from the actual place of performance of a principal activity
which the employee is employed to perform and activities that are
preliminary and postliminary to the employee's principal activity.

F.R. and Commercial contend that the FLSA, as amended by the PPA,
is Maryland law. F.R. and Commercial argue that the MWHL is
Maryland's analog to the FLSA, that Maryland courts look to
decisions under the FLSA in interpreting the MWHL and that, under
the FLSA, the time claimed by Rojas and Torres is not compensable.
F.R. and Commercial assert that Maryland courts have recognized the
PPA is a part of Maryland wage law. F.R. and Commercial contend
that it is significant that Maryland has not stated that the PPA is
not part of the MWHL and the General Assembly enacted the MWHL
twenty years after the FLSA was amended by the PPA, at a time when
the General Assembly would have been "aware of the state of the
FLSA.

B. COMAR 09.12.41.10

The Petitioners contend that, in Maryland, a "worksite" is a
location where an employer exercises control over an employee's
time or requires the employee to report. They assert that, contrary
to the Court of Special Appeals' determination, under Maryland law,
a "worksite" is not limited to a place where an employee is
performing a job function or principal activities of employment.
Petitioners maintain that, rather, a worksite under Maryland law
includes a location where an employer exercises "some control" over
an employee.

The Petitioners argue that the Court of Special Appeals incorrectly
determined that a worksite is limited to a location where an
employee performs a job function or performs work and erred in
concluding that Rosecroft was not a worksite. They assert that,
under COMAR 09.12.41.10, they are entitled to wages for their
travel time, including wait time, between Rosecroft and the MGM
Project construction site. They maintain that, assuming there were
disputes of material fact concerning matters such as whether
Rosecroft was a worksite, the degree of control exercised by
Respondents over them at Rosecroft, and whether they were required
to report to Rosecroft, the circuit court erred in granting summary
judgment in Amaya and in granting the motion for judgment in Rojas
and not allowing the questions to be resolved by the jury.

In Amaya, DGS responds that the Court of Special Appeals correctly
determined that Rosecroft was not a worksite under the MWHL. DGS
contends that the plain meaning of "worksite" is a place where an
employee performs job duties. It argues that the common meaning of
"worksite" does not include a parking lot located miles away from
where construction work occurs and where no work duties are
performed. DGS asserts that because the term "worksite" would not
include Rosecroft, the time that Amaya and Gonzalez spent traveling
between Rosecroft and the MGM Project constitution site would not
constitute compensable travel time under COMAR 09.12.41.10.

DGS contends that the definition of "worksite" adopted by the Court
of Special Appeals conforms with Maryland law. DGS maintains that
Amaya's and Gonzalez's request to create "a control test" to
determine what constitutes compensable work in Maryland would
require action by the General Assembly. It states that Amaya and
Gonzalez "did not perform any part of their job functions or any
activity that was integral and indispensable to the principal
duties of their job to work construction at Rosecroft," and that,
as such, their travel time between Rosecroft and the MGM Project
construction site is not compensable under the MWHL.

In Rojas, F.R. and Commercial respond that, under the plain
language of the relevant statutes and regulations, Rojas and Torres
were not required to be paid for time spent parking or shuttling
from Rosecroft to the MGM Project construction site. F.R. and
Commercial contend that the words "worksite" and "workplace" mean a
location where an employee performs work, and that Rojas and Torres
did not perform any work at Rosecroft or on the buses. F.R. and
Commercial argue that the time claimed by Rojas and Torres does
"not constitute `hours of work' for which wages were required to be
paid under the MWHL or the MWPCL" and instead was part of a
commute, which is not compensable. They assert that nothing in the
MWHL nor COMAR refers to control for determining whether a location
is a worksite.

C. The Unjust Enrichment Claim in the Rojas Case

The circuit court granted judgment in favor of F.R. and Commercial
as to Rojas' and Torres' claim for unjust enrichment. Rojas and
Torres contend that F.R. and Commercial moved for judgment only as
to the statutory wage claims and that the elements of the unjust
enrichment claim are different from those of the wage claims. For
their part, F.R. and Commercial counter that, because wait and
travel time is not compensable, there was no benefit accepted or
retained by them which would give rise to a claim for unjust
enrichment.

IV. Conclusion

The Court of Appeals holds that the PPA has not been adopted or
incorporated into Maryland law in either the MWHL, the MWPCL, or
relevant COMAR regulations. Specifically, it concludes that 29
U.S.C. Section 254(a) of the PPA -- which provides, among other
things, that traveling to the actual place of performance of
principal activity or activities which an employee is employed to
perform is not compensable -- has not been implicitly adopted into
Maryland law.

In other words, what constitutes "work" under Maryland law is not
limited to what is compensable work under the PPA and FLSA. As
such, in these cases, the issue of whether the workers are entitled
to compensation for the time spent waiting at the parking area and
traveling to the construction site and back must be resolved under
Maryland law. Although the workers framed the question in the Court
of Appeals slightly differently, as it sees it, under Maryland law,
the critical issue is whether the workers were either required by
their employer to report during work hours to a location that is
the employer's premises, to be on duty, or to report to a
prescribed workplace, or whether the employees were traveling from
one worksite to another. If so, under COMAR 09.12.41.10, the
workers are entitled to compensation.

That said, the Court of Appeals concludes that, in each case, there
are genuine disputes of material fact as to whether the workers
were required to report to the parking area and whether the parking
area was the employers' premises or a prescribed workplace or
whether the employees were required to be on duty as provided under
COMAR 09.12.41.10, and the respective trial courts erred in
granting summary judgment and judgment at the conclusion of the
workers' case at trial. Accordingly, the cases are remanded to the
Court of Special Appeals with instructions to remand the cases to
the circuit court for findings by a trier of fact as to whether the
workers were required to report to the parking area, whether the
parking area was the employer's premises or a prescribed workplace,
or whether the workers were required to be on duty, and hence were
engaged in hours of work as set forth by COMAR 09.12.41.10.

In addition, in the Rojas case, the Court of Appeals concludes that
the Court of Special Appeals erred in affirming the trial court's
grant of judgment as to the unjust enrichment claim on the ground
that the workers did not perform compensable work, as this
determination was based on the erroneous conclusion that the PPA
applied.

Therefore, in Case No. 14, the Court of Appeals reverses the
judgment of the Court of Special Appeals. It remands the case to
that court with instructions to remand the case to the Circuit
Court for Prince George's County for further proceedings consistent
with the Opinion. The Respondents will pat the pay costs.

In Case No. 17, the Court of Appeals reverses the judgment of the
Court of Special Appeals reversed. It remands the case to that
court with instructions to remand the case to the Circuit Court for
Prince George's County for further proceedings consistent with the
Opinion. The Respondents will pat the pay costs.

A full-text copy of the Court's July 13, 2022 Opinion available at
https://tinyurl.com/mr4a3xeh from Leagle.com.


ESTENSON LOGISTICS: Class Cert. Deadline Continued to Dec. 13
-------------------------------------------------------------
In the class action lawsuit captioned as ALBERT JOHNSON, RAUL
MARTINEZ, TERRANCE LOVETT, ROBERT PARSONS and JAVIER CUEVAS MAGANA
on behalf of themselves and all others similarly situated, v.
ESTENSON LOGISTICS, LLC, a Delaware limited liability company; HUB
GROUP TRUCKING, INC., a Delaware corporation; HUB GROUP, INC.,
DOING BUSINESS IN CALIFORNIA AS CALIFORNIA HUB GROUP; and DOES 1
through 100, Inclusive, Case No. 5:20-cv-00118-JAK-SP (C.D. Cal.),
the Hon. Judge John A. Kronstadt entered an order approving
stipulation to participate in mediation and to continue class
certification deadline and related deadlines.

   1. The deadline for Plaintiffs' Motion Class Certification
      (Rule 23) and Motion for Conditional Certification (FLSA)
      is continued from October 3, 2022, to December 13, 2022;

   2. The deadline for Defendants' Opposition to Plaintiffs'
      Motion for Class Certification (Rule 23) and Motion for
      Conditional Certification (FLSA) is continued from
      November 1, 2022, to January 18, 2023;

   3. The deadline for Plaintiffs' Reply in support of Motion
      for Class Certification (Rule 23) and Motion for
      Conditional Certification (FLSA) is continued from
      November 15, 2022, to February 1, 2023;

   4. The hearing on Plaintiffs' Motion for Class Certification
      (Rule 23) and Motion for Conditional Certification (FLSA)
      is continued from December 5, 2022, to February 27, 2023;

   5. Non-expert discovery cutoff is continued from April 17,
      2023, to July 17, 2023;

   6. Initial expert disclosures cutoff is continued from May 1,
      2023, to September 1, 2023;

   7. Rebuttal expert disclosures cutoff is continued from May
      15, 2023, to September 15, 2023;
   8. Expert discovery cutoff is continued from June 1, 2023, to
      October 6, 2023;

   9. Last day to file motions (including discovery motions) is
      continued from June 13, 2023, to October 27, 2023; and

  10. The hearing on Defendant's Motion to Dismiss pending in
      Buford v. Hub Group Dedicated, LLC, Case No. ED CV21-02179
      JAK (SPx) is continued from September 12, 2022, to October
      31, 2022.

Estenson Logistics provides logistics services.

A copy of the Court's order dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3Ol3lFS at no extra charge.[CC]

FIRST ORDER: Seeks to Stay Peacock Bid for Conditional Cert
-----------------------------------------------------------
In the class action lawsuit captioned as SAMUEL PEACOCK, on behalf
of himself and those similarly situated, v. FIRST ORDER PIZZA, LLC,
TY TURNER, JAMES HOLMES, DOE CORPORATION 1-10, and JOHN DOE 1-10,
Case No. 2:22-cv-02315-SHM-tmp (W.D. Tenn.,), the Defendants ask
the Court to enter an order staying of the Plaintiff's motion for
conditional certification, subject to the Court's ruling on
Defendants' pending Motion to Dismiss.

A copy of the Defendants' motion dated July 8, 2022 is available
from PacerMonitor.com at https://bit.ly/3v0M8ee at no extra
charge.[CC]

The Defendants are represented by:

          Courtney Leyes, Esq.
          FISHER & PHILLIPS LLP
          3310 West End Avenue, Suite 500
          Nashville, TN 37203
          Telephone: (615) 488-2900
          Facsimile: (615) 488-2928
          E-mail: cleyes@fisherphillips.com






FIRST ORDER: Suit Seeks Conditional Cert. of FLSA Collective
------------------------------------------------------------
In the class action lawsuit captioned as Samuel Peacock, On behalf
of himself and those similarly situated, v. First Order Pizza, LLC,
et al., Case No. 2:22-cv-02315-SHM-tmp (W.D. Tenn.), the Plaintiff
asks the Court to enter an order conditionally certifying this case
as a Fair Labor Standards Act (FLSA) collective action, and
authorizing him to send notice of the pendency of this action to
his similarly-situated co-workers.

Specifically, Plaintiff seeks conditional certification of the
following employees:

   "All current and former delivery drivers employed at
   Defendants' Domino's stores between the date three years
   prior to filing of the original complaint and the date of the
   Court's Order approving notice."

The Plaintiff requests the Court to additionally authorize the
Plaintiff to send notice of this action to the delivery drivers who
have worked at Defendants' Domino's stores dating back three years
prior to the filing of the complaint, approve the Plaintiff's
proposed notices and methods of disseminating notice, order
Defendants to provide name and contact information for all
potential opt-in plaintiffs within 14 days of the court's order,
and authorize a 60-day opt-in period.

A copy of the Plaintiff's motion dated July 6, 2022 is available
from PacerMonitor.com at https://bit.ly/3OeX8LL at no extra
charge.[CC]

The Plaintiff is represented by:

          Andrew R. Biller, Esq.
          Andrew P. Kimble, Esq.
          Riley E. Kane, Esq.
          Biller & Kimble, LLC
          8044 Montgomery Rd., Suite 515
          Cincinnati, OH 45236
          Telephone: (513) 202-0710
          Facsimile: (614) 340-4620
          E-mail: abiller@billerkimble.com
                  akimble@billerkimble.com
                  rkane@billerkimble.com
                  www.billerkimble.com

               - and -

          David W. Garrison, Esq.
          Joshua A. Frank, Esq.
          BARRETT JOHNSTON MARTIN
          & GARRISON, LLC
          Phillips Plaza 414 Union Street, Suite 900
          Nashville, TN 37219
          Telephone: (615) 244-2202
          Facsimile: (615) 252-3798
          E-mail: dgarrison@barrettjohnston.com
                  jfrank@barrettjohnston.com

FORLINI'S RESTAURANT: Barrera Seeks Conditional Cert of Collective
------------------------------------------------------------------
In the class action lawsuit captioned as MANUEL BARRERA, on behalf
of himself, FLSA Collective Plaintiffs, and the class, v. FORLINI'S
RESTAURANT, INC., JOSEPH FORLINI, and DEREK FORLINI, Case No.
1:22-cv-01256-VEC (S.D.N.Y.), the Plaintiff files bid for
conditional collective certification and for court facilitation of
notice pursuant to 29 U.S.C. section 216(b).

A copy of the Plaintiff's motion dated July 8, 2022 is available
from PacerMonitor.com at https://bit.ly/3AYrbEB at no extra
charge.[CC]

The Plaintiff is represented by:

          C.K. Lee, Esq.
          Anne Seelig, Esq.
          LEE LITIGATION GROUP, PLLC
          148 W. 24th Street, 8th Floor
          New York, NY 10011
          Telephone: (212) 465-1180
          Facsimile: (212) 465-1181

GBM GLOBAL: Court Confirms Arbitration Award in 91 Individuals Suit
-------------------------------------------------------------------
In the case, GBM GLOBAL HOLDING COMPANY LIMITED, Petitioner v. 91
INDIVIDUALS ATTACHED TO SCHEDULE A, Respondent, Case No. 21 Civ.
6284 (AKH) (S.D.N.Y.), Judge Alvin K. Hellerstein of the U.S.
District Court for the Southern District of New York granted the
petition to confirm the arbitration award, with postjudgment
interest.

Petitioner GBM Global moves to confirm an arbitration award,
rendered on May 2, 2022 against 91 Individuals named in the
attached schedule (collectively "Respondents") in the amount of
$5,231,549.42, pursuant to the Federal Arbitration Act ("FAA"), 9
U.S.C. Sections 1 et seq., which implements the New York Convention
on the Recognition and Enforcement of Foreign Arbitral Awards, and
postjudgment interest, pursuant to 28 U.S.C. Section 1961. Despite
having notice of the arbitral, and this, proceeding, the
Respondents failed to appear. Under Section 207 of the FAA, a court
"shall confirm" an arbitral award falling under the New York
Convention, unless the case falls within the enumerated grounds for
refusing or deferring recognition or enforcement of the award.
Judge Hellerstein finds no grounds to refuse or defer recognition
or enforcement.

Because the Respondent has failed to appear or respond to the
petition, and the time has passed for responding to the instant
motion, Judge Hellerstein treats the petition as an unopposed
motion for summary judgment. The relevant facts are therefore
undisputed.

The Petitioner owns and operates a cryptocurrency exchange under
the name "Bitmart." One of the cryptocurrencies traded on the
Bitmart exchange is Bitcoin Satoshi Vision ("BSV"). In July 2021,
the Respondents registered accounts on the Bitmart exchange and
accepted the terms of Petitioner's User Agreement.

After registering their accounts, the Respondents carried out a
malicious "51% attack" on the BSV blockchain, and by briefly
overtaking the mining power, were able to implant a trail of sham
transactions that created the appearance of Respondents possessing
91,000 authentic BSV tokens. The Petitioner was duped into treating
the sham tokens as authentic and credited a total of 91,000
authentic BSV tokens into digital wallets linked to the
Respondents' accounts. The Respondents immediately traded the
authentic tokens, totaling in value approximately $6,070,000 as of
July 10, 2021, for other cryptocurrencies. Although Petitioner was
able to freeze some of the Respondents' accounts before all
authentic cryptocurrency could be emptied, approximately $5,027,000
was transferred onto other exchanges.

Invoking Section 10.3 of the User Agreement, the Petitioner
initiated an arbitration proceeding before the AAA, alleging breach
of contract and fraud. Despite being given notice of the
proceedings, the Respondents failed to appear before the AAA. The
Petitioner submitted affidavits and documentary evidence in support
of their claims. Based on the uncontested evidence, on May 2, 2022,
the arbitrator awarded the Petitioner joint and several damages for
each withdrawal of cryptocurrency from a Respondent account
occurring on July 9, 2021, with the damages to be calculated in
U.S. dollars at the exchange rate prevailing as of the close of
business on the day of the award. It calculated the specific
cryptocurrencies (identified by ticker) and withdrawal amounts
against each as follow: BSV 3.07; BTC 10.9946; ETH 218.929; USDC
296,654.277; USDT 693,721.37; XRP 3,926,159.284; ADA 130838.17;
DOGE 485; ETC 0.389; HOT 29,912,899; LTC 668.499; MATIC 297,691;
XEM 313.94; XLM 969,308.31; and ZEC 0.3487. The arbitrator,
applying the exchange rate in effect at the close of business on
that date, awarded damages totalling $5,231,549.42, with all sums
to be paid within 45 days from the date of the Award.

The Convention governs judicial confirmation of foreign arbitration
awards. Under 9 U.S.C. Section 207, a party may seek to confirm a
foreign arbitral award under the New York Convention if the award
(1) falls under the Convention; (2) was issued within the past
three years; and (3) does not fall under a relevant exception.
Article V of the New York Convention sets forth seven explicit
grounds for refusal of a foreign arbitration award: (1) incapacity
of the parties; (2) improper notice or inability for the respondent
to present a case; (3) the award does not comply with terms of the
submission to arbitration or is otherwise beyond the scope of
proceedings; (4) the composition of the arbitral authority was not
in accordance with the parties or host country; (5) the "award has
not yet become binding on the parties, or has been set aside" by
another authority; (6) the subject matter of the dispute "is not
capable of settlement by arbitration" under relevant law; and (7)
"enforcement of the award would be contrary to public policy."

Under the New York Convention, the Court's role "in reviewing a
foreign arbitral award is strictly limited" and "extremely
deferential." Courts must look to see if "'a ground for the
arbitrator's decision can be inferred from the facts of the case.'"
"Only 'a barely colorable justification for the outcome reached' by
the arbitrators is necessary to confirm the award."

The Final Award falls under the New York Convention because the
United States is a signatory to the Convention; the Award was
issued less than three years ago; and the dispute arose out of a
commercial relationship between the parties. In addition, the Award
meets the deferential "barely colorable justification" standard,
relying on the Petitioner's uncontested affidavits and documentary
evidence establishing that Respondents orchestrated a cyberattack
on the Petitioner in order to dupe Petitioner into crediting the
Respondents with authentic BSV tokens, and that as a result of the
Respondents' deceptions, the Petitioner was damaged.

For the reasons provided, Judge Hellerstein granted the petition to
confirm the arbitration award, with postjudgment interest from the
date of this judgment. The Clerk of Court will enter judgment and
terminate the case.

A full-text copy of the Court's July 13, 2022 Order is available at
https://tinyurl.com/4terb8zu from Leagle.com.


GEORGIA: Summary Judgment in Fincher v. Corrections Dep't. Affirmed
-------------------------------------------------------------------
In the case, JOSEPH DANIEL FINCHER, TOMMY LYALL, SCOTT SIMMONS,
GERALD DODSON, CAMERON ELLIS, TOMMY PORTER, Plaintiffs-Appellants
v. GEORGIA DEPARTMENT OF CORRECTIONS, WARDEN, UNIT MANAGER JAMISON,
Defendants-Appellees, Case No. 21-14390, Non-Argument Calendar
(11th Cir.), the U.S. Court of Appeals for the Eleventh Circuit
affirms the summary judgment in favor of the Defendants-Appellees.

Inmates Joseph Fincher, Tommy Lyall, Scott Simmons, Gerald Dodson,
Cameron Ellis, and Tommy Porter appeal the summary judgment in
favor of the Georgia Department of Corrections, the Warden of
Phillips State Prison, and a unit manager, Alton Jamison. The
inmates filed a putative class action complaining of retaliation in
violation of the First Amendment after they used the "See
Something, Say Something" hotline and of being subjected to cruel
and unusual punishment in violation of the Eighth Amendment by
being placed in segregation where they were exposed to unsanitary
conditions. The district court ruled that the Department was immune
from suit and alternatively was not subject to suit under section
1983 and that no evidence connected the Warden or Jamison to the
alleged retaliation or to the inmates' placement in segregation.

The Eleventh Circuit reviews de novo a summary judgment. Summary
judgment is appropriate when "there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law."

The Eleventh Circuit finds that the district court correctly
entered summary judgment in favor of the Department. "To prevail on
a civil rights action under Section 1983, a plaintiff must show
that he was deprived of a federal right by a person acting under
color of state law." And the Eleventh Amendment bars suits "against
one of the United States," including a department of a state
government. The inmates do not dispute that their suit against the
Department—a state agency that has not waived its immunity -- "is
proscribed by the Eleventh Amendment," and that it is not a person
subject to suit under section 1983.

The district court also did not err by entering summary judgment in
favor of the Warden and Jamison and against the inmates' claims of
retaliation. To prove retaliation based on the First Amendment, the
inmates had to establish they suffered an adverse action at the
hands of officials in retaliation for engaging in protected
conduct. The inmates asserted that Jamison ordered them in October
2019 to stop their lawsuit, but that conduct could not be
retaliation for an action they admitted "Jamison did not have any
knowledge of until he was served with the First Amended Complaint
on Dec. 3, 2019."

The Eleventh Circuit finds that they provided only a conclusory
allegation that they "were retaliated against by defendant Warden
Hatcher," which was insufficient to survive summary judgment. And
their assertion that the Warden and Jamison were "aware or should
have been aware that these acts of retaliation were occurring and
therefore are responsible" failed for want of proof that the
officials either participated in the retaliation, directed their
subordinates to act unlawfully, or knew those subordinates would
act unlawfully yet failed to stop them.

The district court also did not err by entering summary judgment in
favor of the Warden and Jamison and against the inmates' claim of
being placed in segregation where there were allegedly unsanitary
conditions. The Eleventh Circuit holds that the undisputed evidence
establishes that neither official was involved in the inmates'
placement in segregation. Inmate records, authenticated by the
Deputy Warden of Care and Treatment, established that the extent of
the Warden's involvement in the inmates' placement was on Aug. 21,
2019, when he released Inmates Fincher and Ellis from
administrative segregation and on May 1, 2019, when the Warden
approved a "bed move" for Inmate Simmons. The records also
establish that Jamison had no involvement in inmates' placement.
And although the inmates asserted that they were maltreated by
cellmates in cells that were filthy and infested with mice and
insects, they did not argue or submit evidence that the Warden or
Jamison caused, had a custom or policy of directing subordinates to
maintain or to ignore, or disregarded evidence of the unsanitary
conditions in segregation cells.

The Eleventh Circuit affirms the summary judgment in favor of the
Georgia Department of Corrections, the Warden, and Jamison.

A full-text copy of the Court's July 13, 2022 Order is available at
https://tinyurl.com/2v7kcj9y from Leagle.com.


GERBER PRODUCTS: Scheduling Order Entered in Keeter Class Suit
--------------------------------------------------------------
In the class action lawsuit captioned as Keeter v. Gerber Products
Company, Re: GERBER PRODUCTS COMPANY HEAVY METALS BABY FOOD
LITIGATION, Case No. 1:21-cv-00269-MSN-JFA (E.D. Va.), the Hon.
Judge John F. Anderson entered a scheduling order as follows:

  -- Fact discovery shall be          November 30, 2022
     concluded by:

  -- Expert discovery shall be        February 28, 2023
     concluded by:

  -- The plaintiffs' motion for       December 15, 2022
     class certification shall be
     filed by:

  -- The defendant's opposition       January 30, 2023
     brief shall be filed by:

  -- The plaintiffs' reply brief      February 15, 2023
     shall be filed by:

  -- The hearing on plaintiffs'       February 24, 2023
     motion for class certification
     is continued to:  

Gerber Products Company is an American purveyor of baby food and
baby products headquartered in Florham Park, New Jersey, with plans
to relocate to Arlington, Virginia. Gerber is a subsidiary of
Nestle.

A copy of the Court's order dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3oee1eX at no extra charge.[CC]

GROUP HEALTH: Order Modifying Class Cert. Schedule Entered
----------------------------------------------------------
In the class action lawsuit captioned as STEVEN PLAVIN, GARY
ALTMAN, MICHELLE DA VIS-MATLOCK and DANIELLE THOMAS, on behalf of
themselves and all others similarly situated, v. GROUP HEALTH
INCORPORATED, Case No. 3:17-cv-01462-RDM (M.D. Pa.), the Hon. Judge
Robert D. Mariani entered a stipulated order modifying schedule as
follows:

  -- All fact discovery shall be          August 8, 2022
     completed by:

  -- Plaintiffs' affirmative expert       September 8, 2022
     report related to class
     certification, if any, are
     due on:

  -- Defendant's affirmative expert       October 7, 2022
     report related to class
     certification, if any,
     are due on:

  -- Supplementations to the              November 4, 2022
     parties' expert reports
     related to class
     certification, if any,
     are due on:

  -- Plaintiffs' Motion for               November 30, 2022
     Class Certification is
     due on:

  -- Defendant's Opposition               January 13, 2023
     to Class Certification
     is due on:

  -- Plaintiffs' Reply in                 February 10, 2023
     Support of Class
     Certification is
     due on:

Group Health is a statewide not-for-profit health insurer serving
New York.

A copy of the Court's order dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3OdUPZu at no extra charge.[CC]

HARBOURSIDE FUNDING: Seeks to Decertify Class in Peng Suit
----------------------------------------------------------
In the class action lawsuit captioned as TING PENG and LIN FU, on
behalf of themselves individually and all others similarly
situated, and derivatively on behalf of HARBOURSIDE FUNDING, LP, a
Florida limited partnership, v. NICHOLAS A. MASTROIANNI II;
HARBOURSIDE FUNDING GP, LLC, a Florida limited liability company;
and HARBOURSIDE PLACE, LLC, a Delaware limited liability company,
and HARBOURSIDE FUNDING, LP, a Florida limited partnership, Case
No. 9:20-cv-80102-AMC (S.D. Fla.), the Defendants file expedited
motion to decertify class.

The majority of the Class members (34 of 66) want to settle with
the Defendants, but dispute the legal fee the DeHeng law firm
intends to seek, while three other Class members have already
settled with the Defendants. This reveals that the Class
Representatives are holding the Class hostage by refusing to assent
to a Class-wide settlement and, as a result, the interests of the
Class are being subordinated both to the interests of the Class
Representatives, who want to proceed to trial, and the DeHeng law
firm, which, despite not being Class Counsel, has asserted an
economic interest over any funds obtained by the Class members.

Only 18 Class members have indicated that they are not interested
in settling at this time on the terms proposed. And of this number,
six (6) previously filed suit on their own behalf in state court,
demonstrating their ability to protect their own perceived
interests in court.

As Class Counsel concedes on reply, eighteen is presumptively
insufficient to maintain a class, while anything less than
40 renders the viability of the Class questionable. This is
particularly so, viewed in light of Rule 23(b)(3), which requires
that class treatment be the superior method for adjudicating
claims. Rule 23(b)(3) is not satisfied here, where the evidence
demonstrates that the majority of the Class members have an
interest in individually controlling their claims, without any
interference by the DeHeng law firm.

On January 11, 2021, the Plaintiffs filed their Motion for Class
Certification. The Certification Motion stated that "by pursuing
their own claims," the named Plaintiffs would "necessarily advance
the interests of the proposed Class", and specifically sought the
appointment of Jeffrey L. Fazio of DeHeng Law Offices, P.C.

On June 25, 2021, the Court entered an Order Granting the Motion
for Class Certification. In that Order, the Court ruled that
"should circumstances change or new record evidence come to light
with respect to the propriety of class certification or the
adequacy of the class definition, the parties may move at a later
date to decertify or modify the class as defined in this Order."

A copy of the Defendants' motion dated July 8, 2022 is available
from PacerMonitor.com at https://bit.ly/3Pn6lTM at no extra
charge.[CC]

The Defendants are represented by:

          Eleni Kastrenakes Howard, Esq.
          David P. Ackerman, Esq.
          AKERMAN LLP
          777 South Flagler Drive
          Suite 1100, West Tower
          West Palm Beach, FL 33401
          Telephone: (561) 653-5000
          Facsimile: (561) 659-6313
          E-mail: david.ackerman@akerman.com
                  claudia.rodriguez@akerman.com
                  eleni.howard@akerman.com
                  luke.bovat@akerman.com

               - and -

          Richard G. Haddad, Esq.
          Gabriela S. Leon, Esq.
          OTTERBOURG P.C.
          230 Park Avenue
          New York, NY 10169
          Telephone: (212) 661-9100
          Facsimile: (212) 682-6104
          E-mail: rhaddad@otterbourg.com
                  gleon@otterbourg.com

HELLO PRODUCTS: Offers $1.4M to Fix False Advertising Suit
----------------------------------------------------------
Top Class Actions report a $1.4 million settlement has been
proposed in a class action lawsuit alleging Hello Products LLC
falsely advertised oral care products that contain activated
charcoal, and no proof of purchase is required for consumers to
benefit. Consumers who purchased Hello oral care products
containing activated charcoal before June 15, 2022, may be entitled
to a cash payment from the class action settlement.

In recent years, the Hello class action lawsuit alleges, products
containing activated charcoal have been touted by "opportunistic
marketers, celebrities and social media influencers" for their
alleged detoxifying effects and other health benefits.  In response
to these marketing efforts, consumers have allegedly been willing
to pay a premium for products containing activated charcoal, the
Hello class action lawsuit alleges.

The Hello charcoal toothpaste class action lawsuit claims the
oral-care products are deceptively labeled and do not deliver the
promised teeth whitening and other benefits.  In reality, experts
advise against the use of oral care products containing activated
charcoal due to potential harm to oral health and aesthetics, the
Hello class action lawsuit alleges. When used in oral care,
charcoal is reportedly abrasive to the gums and tooth enamel.  The
American Dental Association (ADA) has not granted approval to any
oral care products that contain activated charcoal for its ADA Seal
of Acceptance, the plaintiffs assert.

Hello denies the allegations but agreed to settle the activated
charcoal class action lawsuit to avoid the burden and expense of
ongoing litigation.

It is estimated class members who submit timely and valid claims
will receive a payment of approximately $6 per product purchased,
but the actual amount each claimant will receive depends on the
total number of claims filed.  No proof of purchase is required,
but class members must assert under penalty of perjury that they
purchased Hello oral care products with activated charcoal.

Class members who provide proof of purchase may claim benefits for
up to 10 products and class members without proof of purchase may
claim up to five products.  Class members who wish to opt out of or
object to the Hello activated charcoal toothpaste settlement must
do so no later than Aug. 27, 2022.

The final fairness hearing is scheduled for Jan. 10, 2023.  The
deadline to submit a claim form is Oct. 11, 2022.

The case is styled, Patellos, et al. v. Hello Products, LLC, Case
No. 1:19-cv-09577-SDA., Case No. 1:19-cv-09577-SDA, in the U.S.
District Court Southern District of New York.  On the Web:
https://www.CharcoalToothpasteSettlement.com

Claims Administrator:

   Charcoal Toothpaste Settlement Administrator
   P.O. Box 25410
   Santa Ana, CA 92799
   info@charcoaltoothpastesettlement.com
   Tel: 866-221-3146

Class Counsel:

   William B. Federman, Esq.
   FEDERMAN & SHERWOOD
   10205 N Pennsylvania Ave.
   The Village, OK 73120
   Tel: 405-235-1560

     - and -

   David Pastor, Esq.
   PASTOR LAW OFFICE LLP
   63 Atlantic Ave #3
   Boston, MA 02110
   Tel: 617-742-9700

Defense Counsel:

   Robyn E. Bladow, Esq.
   KIRKLAND & ELLIS LLP
   555 South Flower Street Suite 3700
   Los Angeles, CA 90071
   Tel: 213-680-8634 [GN]


HOME DEPOT: Court Modifies Scheduling Order Entered in Patton
-------------------------------------------------------------
In the class action lawsuit captioned as DOUGLAS PATTON, SALVADOR
REYNOSA, JR., AND ALBERTO MUNIZ, individuals, on behalf of
themselves and on behalf of all persons similarly situated, v. HOME
DEPOT U.S.A., INC., a Corporation; and DOES 1 through 50,
Inclusive, Case No. 2:21-cv-01096-WBS-KJN (E.D. Cal.), the Hon.
Judge Kendall J, Newman entered an order granting stipulation to
modify the scheduling order as follows:

                                 Former Date      New Date

-- Phase One Discovery         July 1, 2022     Sept. 2, 2022
    Cut-Off:

-- Expert Disclosures --       July 8, 2022     Sept. 9, 2022
    Phase 1:

-- Rebuttal Expert             July 29, 2022    Sept. 30, 2022
    Disclosures:

-- Phase I- Expert             Aug. 19, 2022    Oct. 21, 2022
    Discovery Cut-Off:

-- Last day to file MSJ:       Sept. 2. 2022    Nov. 4, 2022

-- Last day to file            Oct. 7, 2022     Dec. 9,2022
    Opposition to MSJ:

-- Last day to file Reply      Nov.  4, 2022    Dec. 6, 2023
    in Support of MSJ:

-- Expert Disclosures          Dec. 23, 2022    Feb. 24, 2023
    (Phase 2):

-- Last day to file Motion     July 2, 2023     Sept. 4, 2023
    for Class Certification:

-- Last day to file            Aug. 18, 2023    Oct. 20, 2023
    Opposition to:
Home Depot operates home improvement retail stores.

A copy of the Court's order dated July 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3uXt4gV at no extra charge.[CC]

HYATT CORP: Discovery in Insixiengmay Suit to Continue on Oct. 3
----------------------------------------------------------------
In the case, JANICE INSIXIENGMAY, individually and on behalf of all
others similarly situated, Plaintiff v. HYATT CORPORATION, a
Delaware Corporation; HYATT CORPORATION DBA HYATT REGENCY
SACRAMENTO, an unknown association; and DOES 1 to 100, inclusive,
Defendants, Case No. 2:18-cv-02993-TLN-DB (E.D. Cal.), Judge Troy
L. Nunley of the U.S. District Court for the Eastern District of
California further amended the Court's Amended Pretrial Scheduling
Order to continue the deadline to complete Phase I discovery
regarding facts that are relevant to whether the action should be
certified as a class action to Oct. 3, 2022.

The Stipulation and proposed Order is entered into between the
Plaintiff and Defendant Hyatt Corp, d/b/a Hyatt Regency Sacramento
(erroneously sued as both "Hyatt Corporation" and "Hyatt
Corporation dba Hyatt Regency Sacramento") ("Defendant"), by and
through their counsel of record.

The Court entered an Amended Pretrial Scheduling Order on Aug. 3,
2020 providing that Phase I discovery regarding facts that are
relevant to whether this action should be certified as a class
action will be completed within 240 days (i.e., March 31, 2021).

As a result of a prior informal discovery conference on Feb. 19,
2021, with Hon. Deborah Barnes, the Court suggested a stipulation
and order to continue the factual discovery deadline, which was
granted on Feb. 26, 2021, continuing the deadline to June 1, 2021.

The Court further amended the Amended Pretrial Scheduling Order on
May 25, 2021 to continue the Phase I discovery deadline to Aug. 2,
2021 to provide the Defendant with additional time to produce
electronic copies of time and pay records for a sample of employees
the parties agreed to, as the Defendant encountered difficulties in
obtaining the requested data in electronic form.

Thereafter, the Defendant continued to attempt to obtain and
produce the data in electronic form but encountered additional
difficulties.

On July 15, 2021, the Defendant's counsel informed the Plaintiff's
counsel that the Defendant would produce time and pay records from
its hard copies because it was ultimately unable to obtain complete
electronic data.

Thereafter to because the Defendant needed additional time to
produce the documents and because the Parties needed more time for
depositions, the parties submitted additional stipulations and
orders to continue the Phase I discovery deadline, which were
granted, making the current deadline Aug. 1, 2022.

The deposition of the Rule 30(b)(6) designee of the Defendant is
scheduled to take place on July 28, 2022. The deposition of the
Plaintiff is scheduled to take place on July 29, 2022.

In order to provide sufficient time for either party to compel
answers to questions asked at deposition or complete any follow up
document requests, to the extent necessary, the Parties believe
additional time is necessary to complete Phase I discovery and
agree there is good cause to continue the deadline for Phase I
discovery approximately 60 days.

Therefore, by and between the Parties, subject to the approval of
the Court, stipulate as follows: The Court's Amended Pretrial
Scheduling Order will be further amended to continue the deadline
to complete Phase I discovery regarding facts that are relevant to
whether the action should be certified as a class action to Oct. 3,
2022.

Having considered the stipulation and finding good cause, Judge
Nunley further amended the Court's Amended Pretrial Scheduling
Order to continue the deadline to complete Phase I discovery
regarding facts that are relevant to whether the action should be
certified as a class action to Oct. 3, 2022. The Amended Pretrial
Scheduling Order will remain in effect in all other respects.

A full-text copy of the Court's July 13, 2022 Order is available at
https://tinyurl.com/yxzzb4fu from Leagle.com.

Galen T. Shimoda -- attorney@shimodalaw.com -- Justin P. Rodriguez
-- jrodriguez@shimodalaw.com -- Brittany V. Berzin --
bberzin@shimodalaw.com -- Shimoda & Rodriguez Law, PC, in Elk
Grove, California, Attorneys for Plaintiff JANICE INSIXIENGMAY, on
behalf of herself and similarly situated employees.

Joseph W. Ozmer II -- jozmer@kcozlaw.com -- J. Scott Carr --
scarr@kcozlaw.com -- KABAT CHAPMAN & OZMER LLP, in Los Angeles,
California, Attorneys for Defendants HYATT CORPORATION, d/b/a HYATT
REGENCY SACRAMENTO (erroneously sued as both "Hyatt Corporation"
and "Hyatt Corporation dba Hyatt Regency Sacramento).


HYUNDAI MOTOR: Filing for Prelim OK of Settlement Extended
-----------------------------------------------------------
In the class action lawsuit captioned as RAMTIN ZAKIKHANI, KIMBERLY
ELZINGA, THEODORE MADDOX JR., MICHAEL SUMMA, JACQUELINE WASHINGTON,
PATTI TALLEY, ANA OLACIREGUI, ELAINE PEACOCK, MELODY IRISH, and
DONNA TINSLEY, individually and on behalf of all others similarly
situated, v. HYUNDAI MOTOR COMPANY, HYUNDAI MOTOR AMERICA, KIA
CORPORATION, and KIA AMERICA, INC., Case No. 8:20-cv-01584-SB-JDE
(C.D. Cal.), the Hon. Judge Stanley Blumenfeld, Jr. entered an
order that the deadline for the Plaintiffs to file their Motion for
Preliminary Approval of the Settlement is continued from July 15,
2022 to August 1, 2022.

The dates for class certification briefing and hearing set forth in
the Court's case management order (CMO) are likewise extended by
two weeks, as follows:

              Event          Current Dates       New Dates

-- Plaintiffs' Motion for    July 25, 2022      Aug. 8, 2022
   Class Certification

-- Defendants' Opposition    Sept  23, 2022     Oct. 7, 2022
   Motion for Class
   Certification

-- Plaintiffs' Reply to      Oct. 24, 2022      Nov. 7, 2022
   Defendants’ Opposition

-- Hearing on Class          Nov. 11, 2022      Dec. 2, 2022
   Certification Motion

Hyundai Motor, often abbreviated to Hyundai Motors and commonly
known as Hyundai, is a South Korean multinational automotive
manufacturer headquartered in Seoul, South Korea. Hyundai Motor
Company was founded in 1967.

A copy of the Court's order dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3zj4byX at no extra charge.[CC]

IRONNET INC: Lead Plaintiff & Lead Counsel Named in Securities Suit
-------------------------------------------------------------------
In the case, ADAM GRAD, on Behalf of Himself and All Others
Similarly Situated, Plaintiff v. IRONNET, INC., et al., Defendants,
Case No. 1:22-cv-00449 (RDA/JFA) (E.D. Va.), Judge Rossie D. Alston
of the U.S. District Court for the Eastern District of Virginia,
Alexandria Division, grants James Shunk's Motion to Appoint Counsel
and Lead Plaintiff.

I. Overview

The matter comes before the Court on the outstanding Motions to
Appoint Counsel and Lead Plaintiff. The Court has dispensed with
oral argument as it would not aid in the decisional process. The
matter has been fully briefed and is now ripe for disposition.
Considering the Motions, including the supporting memorandum and
related exhibits filed on behalf of Chris Riemer, the supporting
memorandum and related exhibits, opposition brief, and reply brief
on behalf of Roger Caroway, Shirley Guthrie, and Yong Kim ("CGK"),
and the supporting memorandum and related exhibits, opposition
brief, and reply brief on behalf of James Shunk, Judge Alston
grnats Shunk's Motion and denies the Motions of both Riemer and
CGK.

II. Background

The instant Complaint alleges that all the Defendants -- IronNet,
Keith B. Alexander, James C. Gerber, and William E. Welch
("Individual Defendants") -- violated Section 10(b) of the
Securities Exchange Act of 1934 ("Exchange Act") and SEC Rule
10b-5. The Complaint also alleges that the Individual Defendants
violated Section 20(a) of the Exchange Act.

The matter arises as a result of the Defendants' allegedly false
and misleading statements and omissions with respect to all
securities publicly offered by IronNet and purchased between Sept.
15, 2021 and Dec. 15, 2021 ("Class Period") by members of the
putative class. IronNet is a cyber security services provider
headquartered in McLean, Virginia. On Aug. 27, 2021, IronNet merged
with a "blank check special purpose" acquisition company ("SPAC"),
LGL Systems Acquisition Corp. ("LGL"). As a result of this de-SPAC
transaction, IronNet became a publicly traded company on the New
York Stock Exchange and issued, among other securities, common
shares under the ticker symbol "IRNT."

Ahead of the merger approval, on Aug. 10, 2021, IronNet revised its
financial forecasts. But after IronNet began publicly trading its
common shares, on Sept. 14, 2021, IronNet issued a press release
announcing its quarterly financially results, which fell
significantly short of its prior forecasts. Notwithstanding the
suboptimal results, IronNet reaffirmed it was "on target" with its
"first half guidance" and that "new customer momentum so far in the
second half of its fiscal year is strong."

The stock price climbed 38% immediately following that
announcement. But on Dec. 15, 2021, after market close, IronNet
altered its guidance in new customer acquisition due to
unanticipated "government delays in getting funding through to
federal budgets." The earnings call that followed revealed that
IronNet had fired its Chief Revenue Officer and would reformulate
its guidance methodology going forward. On Dec. 16, 2021, the
common stock price dropped 31%.

The Complaint alleges that the Defendants materially misled public
IronNet investors by inflating the price of IronNet securities,
issuing false and misleading statements and omitting material facts
related to IronNet's adverse business and operations performance.

On April 22, 2022, Plaintiff Grad filed the instant Complaint. That
same day, the counsel for the Plaintiff caused a notice to be
published over Globe Newswire pursuant to Section 21D(a)(3)(A)(i)
of the Private Securities Litigation Reform Act of 1995 ("PSLRA").

On May 18, 2022, the Defendants moved for suspension of their
response filing obligations pending the resolution of the
appointment of a lead plaintiff and lead counsel in the matter,
which the Court granted on May 20, 2022. On June 21, 2022, 60 days
from the filing of the original Complaint as required by the PSLRA,
the Court received five motions for appointment of lead plaintiff
and lead counsel, accompanied by supporting memoranda and exhibits.
The Court then issued a scheduling order requiring all responses to
the initial motions by July 6, 2022, and all final replies to those
responses by July 11, 2022.

On July 5, 2022, the counsel for Riemer filed a notice
acknowledging that Riemer did not appear to have the largest
financial interest in the matter. Two of the other parties withdrew
their motions. The counsel for CGK also filed a notice of
correction as to Guthrie's loss chart to reflect her options trades
made during the Class Period which resulted only in gains,
decreasing her aggregate loss amount by $9,020. On July 6, 2022,
CGK and Shunk each filed opposition briefs. On July 11, 2022, CGK
and Shunk each filed replies as permitted by the Court's briefing
order.

III. Analysis

A. Lead Plaintiff

The PSLRA directs that the plaintiff with the "largest financial
interest in the relief sought by the class" initially is to be
considered the lead plaintiff, provided that such plaintiff
satisfies the requirements of Federal Rule of Civil Procedure 23.
The parties do not dispute that options securities are covered by
the Complaint and therefore are treated in like manner with common
stock losses in calculating each applicant's aggregate financial
losses.

As a result, Shunk's covered losses during the Class Period --
$776,722.50 -- represent the largest financial loss in the matter.
Through counsel, Shunk has also moved to be appointed lead
plaintiff. Therefore, he is the presumptive lead plaintiff so long
as he (1) meets the other requirements of Rule 23 and (2) such
presumption is not adequately rebutted.

At this prima facie showing stage, Judge Alston opines that Shunk's
claims appear mainstream and adequately represent the interests of
the class. First, Shunk's trading behavior is not atypical of the
class. Shunk incurred $64,016.00 in losses from the sale of common
stock purchased during the Class Period. Moreover, the losses
incurred from his sale of call options resulted from the same
motivation as the sales made by common stockholders.

Second, Shunk has preliminarily demonstrated himself to "not have
interests that are adverse to the interests of the class." Shunk
has also proposed lead and liaison counsel with a respectable track
record handling securities and other complex civil litigation
matters and, through briefing, has not demonstrated any questions
as to his competency to serve as class representative. Rather,
given the sheer magnitude of his losses, "there is no reason to
believe that he or his counsel will not vigorously prosecute the
action."

Third, given that no other applicant has presented any specific
evidence that Shunk's trading patterns were atypical or that
Shunk's interests were adverse to the interests of the class, Shunk
has satisfied the necessary showing that his service as a lead
plaintiff meets the typicality and adequacy requirements of Rule
23.

B. Lead Counsel

Mr. Shunk seeks to appoint Bernstein Liebhard LLP as lead counsel
and The Kaplan Law Firm as liaison counsel. In determining whether
to grant such approval, the Court must consider: (1) 'the work
counsel has done in identifying or investigating potential claims
in the action'; (2) 'counsel's experience in handling class
actions, other complex litigation, and the types of claims asserted
in the action'; (3) 'counsel's knowledge of the applicable law';
(4) 'the resources that counsel will commit to representing the
class'; and (5) 'any other matter pertinent to counsel's ability to
fairly and adequately represent the interests of the class.'"

Bernstein and Kaplan have filed extensive briefings and supporting
documentation in the matter. They have provided evidence of
substantial experience in securities litigation and other complex
civil litigation matters. And while Kaplan's expertise does not
appear to focus entirely on securities litigation, its principal
attorney has significant prior experience in litigating securities
cases.

Considering their combined expertise and already demonstrated
commitment to the matter through its thoughtful briefing, Judge
Alston will permit the appointment of Bernstein as the Lead Counsel
and Kaplan as the Liaison Counsel in the matter. This position of
trust that the Court has placed with counsel comes with an
expectation of the highest standards of professionalism and
effective advocacy.

III. Conclusion

Accordingly, Judge Alston grants the Motion to be appointed as the
Lead Plaintiff by James Shunk. She denies the remaining motions by
Riemer and CGK.

Mr. Shunk is appointed to serve as the Lead Plaintiff pursuant to
Section 21D(a)(3)(B) of the Securities Exchange Act of 1934, 15
U.S.C. Section 78u-4(a)(3)(B), as amended by the Private Securities
Litigation Reform Act of 1995, in the action.

Mr. Shunk's selection of Lead Counsel is approved, and Bernstein
Liebhard is appointed to serve as the Lead Counsel for the class.

Mr. Shunk's selection of Liaison Counsel is also approved, and
Kaplan Law is appointed to serve as the Liaison Counsel for the
class.

Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, any
pending subsequently filed, removed, or transferred actions that
are related to the claims asserted in the action are consolidated
for all purposes.

The action will bear the caption "In re IronNet, Inc. Securities
Litigation" and will be maintained under master file number No.
1:22-cv-00449-RDA-JFA.

Within 14 days of the Order and Opinion, the counsel for the Lead
Plaintiff and the Defendants will submit a proposed schedule for
the filing of an amended complaint and the Defendants' responses
thereto.

The Clerk is directed to forward copies of the Order to the counsel
of record and reflect the aforementioned updates to the docket,
including making James Shunk a Plaintiff and revising the docket
caption.

A full-text copy of the Court's July 15, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/3e6ep28u from
Leagle.com.


JOHN HEATH: Seeks Leave to File Certain Exhibits Under Seal
-----------------------------------------------------------
In the class action lawsuit captioned as JENNIFER MOORE, v. JOHN C.
HEATH, ATTORNEY AT LAW, CONFIDENTIAL EXHIBITS PLLC d/b/a LEXINGTON
LAW FIRM, et al., Case No. 2:21-cv-00027-TC-CMR (D. Utah), the
Defendants John C. Heath, Progrexion Marketing, Inc., and eFolks
Seek for Leave to File Under Seal portions of Plaintiff's Motion
for Class Certification and certain exhibits.

The Defendants have narrowly sought to protect the confidentiality
of proprietary business and financial information that is deserving
of such protection, and the public's interest in accessing the
information, if any, is far outweighed by Defendants' interest in
protecting the information from disclosure. Accordingly, the Court
should grant this Motion and also give Plaintiff leave to file her
Motion for Class Certification and Defendants' Confidential
Exhibits under seal.

A copy of the Defendants' motion dated July 7, 2022 is available
from PacerMonitor.com at https://bit.ly/3cfWmki at no extra
charge.[CC]

The Defendants are represented by:

          James D. Gilson, Esq.
          Lyndon R. Bradshaw, Esq.
          DENTON DURHAM JONES PINEGAR P.C.
          111 South Main Street, Suite 2400
          PO Box 4050
          Salt Lake City, UT 84111
          Telephone: (801) 415-3000
          Facsimile: (801) 415-3500
          E-mail: james.gilson@dentons.com
                  lyndon.bradshaw@dentons.com


KELLOGG SALES: S.D. New York Grants Bid to Dismiss Russett Suit
---------------------------------------------------------------
In the case, ELIZABETH RUSSETT, individually and on behalf of all
others similarly situated, Plaintiff v. KELLOGG SALES COMPANY,
Defendant, Case No. 7:21-cv-08572 (NSR) (S.D.N.Y.), Judge Nelson S.
Roman of the U.S. District Court for the Southern District of New
York grants Kellogg's motion to dismiss the Plaintiff's Complaint.

I. Introduction

Plaintiff Russett commenced the class action against global food
manufacturer, Kellogg, individually and on behalf of all others
similarly situated, alleging that Kellogg participated in deceptive
business practices and/or false advertising by misrepresenting the
amount of strawberries in its "Whole Grain Frosted Strawberry"
Pop-Tarts through materially misleading labeling.

Presently before the Court is Kellogg's Federal Rule of Civil
Procedure 12(b)(6) and 12(b)(1)1 motion to dismiss the Plaintiff's
Complaint.

II. Background

Kellogg, a Delaware corporation, is known as a pioneer of breakfast
and snack foods, including Special K, Corn Flakes, Nutri-Grain
Bars, BelVita, and Pop-Tarts. It manufactures, labels, markets, and
sells "Whole Grain Frosted Strawberry Toaster Pastries" ("Frosted
Strawberry Pop-Tarts" or "the Product") under its Pop-Tarts brand.
The front label on the Product's packaging contains
representations, including: (1) the words "Frosted Strawberry," (2)
an image of half of a fresh strawberry, (3) an image of the Product
depicting "the Product's bright red filling," and (4) the words
"Made with Whole Grain."

The Plaintiff alleges the representations are misleading because
"the Product has less strawberries than consumers expect based on
the labeling." She also alleges the Product's label is misleading
because the Product "contains mostly non-strawberry fruit
ingredients" such as dried pears, dried apples, and dried
strawberries. The front label includes strawberries but does not
include pears and apples, "even though the fine print of the
ingredient list reveals the presence of more of these fruits than
strawberries." It also fails to inform customers of the percentage
of strawberries in the Product relative to pears and apples. The
Plaintiff further alleges that the inclusion of vegetable juice and
paprika extract for the red color in the Product further deceives
consumers as to the strawberry content of the Product.

The Plaintiff, a citizen of New York, has purchased the Product "on
one or more occasions" at stores in New York between 2020 and 2021.
She relied on the representation that the Product was made with
whole grain, which she alleged was true, and claimed she had no
reason to expect that the representation as to the amount of
strawberries in the Product was not true. If she had known of the
alleged misrepresentations, she would not have purchased the
Product or would have paid less for it.

The Plaintiff filed a class action Complaint on Oct. 19, 2021. She
granted Defendant Kellogg leave to file a motion to dismiss on
March 4, 2022. The Defendant then filed a motion to dismiss on May
19, 2022, pursuant to Federal Rule of Civil Procedure 12(b)(6), for
an order dismissing the Plaintiff's Complaint for failure to state
a claim on which relief can be granted. In the alternative, the
Defendant moved for an order dismissing the Plaintiff's claim for
injunctive relief for lack of standing pursuant to Federal Rule of
Civil Procedure 12(b)(1).

The Plaintiff opposed the motion to dismiss. On May 26, 2022, the
Defendant filed a notice of supplemental authority, informing the
Court of a decision in Harris v. Kellogg Sales Co., No.
3:21-cv-1040 (S.D. Ill. May 24, 2022) in which the district court
dismissed another putative class action filed by the Plaintiff's
counsel challenging the labeling of Strawberry Pop-Tarts.

III. Discussion

The Plaintiff asserts claims for: (1) violations of N.Y. G.B.L.
Sections 349 and 350; (2) violation of state consumer fraud acts;
(3) breaches of express warranty, implied warranty of
merchantability and the Magnuson Moss Warranty Act; (4) negligent
misrepresentation; (5) common-law fraud; and (6) unjust
enrichment.

A. Plaintiff Fails to State a Claim under Sections 349 and 350 of
the New York General Business Law.

Kellogg only contests the plausibility of allegations that it made
any materially misleading representations. Judge Roman agrees. The
Plaintiff has failed to sufficiently plead that the front packaging
is misleading.

The Defendant argues that the representations on the front label
are not misleading. In particular, Kellogg contends that (1) the
front label does not represent that the Whole Grain Strawberry
Pop-Tarts contain no fruits other than strawberries, that the
filling consists predominantly of strawberries compared to other
fruits, or that the filling includes strawberries; (2) all the term
"strawberry" conveys is that the filling tastes like strawberries;
(3) the statement that Whole Grain Strawberry Pop-Tarts are "Made
With Whole Grain" has no bearing on whether the challenged
"strawberry" representations are false or misleading; and (4) the
red food coloring does not exaggerate the amount of strawberries in
the filling.

Judge Roman finds that no reasonable consumer would see the entire
product label, reading the words "Pop-Tarts Whole Grain Frosted
Strawberry" alongside a frosted strawberry pop-tart with sprinkles,
and reasonably expect that fresh strawberries would be the sole
ingredient in the Product. Similarly, the statement that Whole
Grain Strawberry Pop-Tarts are "Made with Whole Grain" has no
bearing on whether the challenged "Strawberry" representations are
false or misleading. In addition, a reasonable consumer would not
assume based on the packaging colors what the ingredients would be
of the specific product. Therefore, the Plaintiff cannot plausibly
allege that the red filling falsely implies the presence, absence,
or specific amount of strawberries or any ingredient.

For the reasons, Judge Roman finds as a matter of law that the
Product's packaging would not have misled a reasonable customer.
Accordingly, he finds that the Plaintiff has failed to adequately
plead a materially misleading representation under GBL sections 349
and 350.

B. Plaintiff's Other State Law Claims Must Be Dismissed Because She
Has Failed to Plead that the Challenged Representations are
Materially Misleading

The Plaintiff also asserts claims for violation of state consumer
fraud acts, breaches of express warranty, implied warranty of
merchantability, and the Magnuson Moss Warranty Act, negligent
misrepresentation, common-law fraud, and unjust enrichment. Each of
these claims concern the same deceptive or misleading packaging as
alleged in the Plaintiff's N.Y. General Business Law claims.

Since the Plaintiff has not pleaded an underlying materially
misleading representation, the other claims in the case, which
hinge on the core theory of an alleged deceptive or misleading
label on the Product, must also be dismissed. Courts in this
District have taken this approach in lawsuits asserting the same or
substantially similar claims after dismissing the GBL claims. Since
all claims are dismissed, Judge Roman need not and does not reach
Kellogg's other arguments.

C. Plaintiff's Request for Leave to Amend Is Denied

Based upon the front packaging, ingredients list, and reasoning set
forth herein, Judge Roman believes that any amendment would be
futile. Accordingly, the Plaintiff's request for leave to amend is
denied.

IV. Conclusion

For the reasons he discussed, Judge Roman grants Defendant
Kellogg's motion to dismiss the Complaint. The Clerk of Court is
respectfully directed to terminate the motion at ECF No. 14 and to
close the case.

A full-text copy of the Court's July 15, 2022 Opinion & Order is
available at https://tinyurl.com/25k3r7re from Leagle.com.


KEURIG GREEN: Class Action Settlement in Smith Gets Initial Nod
---------------------------------------------------------------
In the class action lawsuit captioned as KATHLEEN SMITH, v. KEURIG
GREEN MOUNTAIN, INC., Case No.4:18-cv-06690-HSG (N.D. Cal.), the
Hon. Judge Haywood S. Gilliam, Jr. entered an order granting
preliminary approval of class action settlement.

The Plaintiff Smith brings this consumer class action against the
Defendant Keurig, alleging that the Defendant's "recyclable"
labeling on its plastic single-serve coffee pods is false and
misleading.

The Plaintiff alleges that despite the fact that "Defendant
advertises, markets and sells the Products as recyclable,"
municipal recycling facilities are not properly equipped to handle
the pods, which are small and "inevitably contaminated with foil
and food waste."

The Plaintiff contends that if she had known that the Products were
not recyclable, she would not have purchased them, or would have
paid less for them. Based on those facts, the complaint asserts the
following causes of action: (1) breach of express warranty; (2)
violations of California Consumers Legal Remedies Act ("CLRA"); (3)
violations of California's Unfair Competition Law ("UCL") based on
fraudulent acts and practices; (4) violations of the UCL based on
unlawful acts; (5) violations of the UCL based on unfair acts and
practices; and (6) unjust enrichment.

The Plaintiff Smith initially filed this action in Alameda Superior
Court in September 2018, but Procedural History
Defendant removed the case to this Court. After Defendant moved to
dismiss the complaint, Plaintiff filed a First Amended Complaint.
The Court denied the motion in June 2019. On September 21, 2020,
the Court granted Plaintiff's motion
for class certification, certifying a class of persons who
purchased the Product for personal, family, or household purposes
in California.

In the fall of 2020, Defendant unsuccessfully petitioned the Ninth
Circuit for permission to appeal the Court's certification order.

The Settlement Class is defined as:

   "All Persons in the United States who purchased Keurig’s Pods
   for personal, family or household purposes within the Class
   Period."

A copy of the Court's order dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3zj4ARZ at no extra charge.[CC]


KNIGHTSBRIDGE MANAGEMENT: Conditional Certification Bid Filed
-------------------------------------------------------------
In the class action lawsuit captioned as RONALD JOLLY, et al., On
Behalf of Themselves and Other Similarly Situated, v. KNIGHTSBRIDGE
MANAGEMENT, INC. DBA KNIGHTSBRIDGE RESTAURANT GROUP. et al., Case
No. 1:21-cv-02163-TNM (D.D.C.), the Plaintiffs Ronald Jolly and
Amir Ziagham, individually and on behalf of other similarly
situated Tipped Employees that were employed by the Defendants file
motion for Conditional Certification of a Collective Action and
Notice to Potential Plaintiffs.

The Plaintiffs seek to recover unpaid wages and associated damages
under the Federal Fair Labor Standards Act of 1938 (FLSA), the D.C.
Minimum Wage Act Revision Act of 1992 (DCMWA), and the D.C. Wage
Payment and Collection Law (DCWPCL).

The Defendants own and operate Rasika West End, LLC, an upscale
Indian restaurant in the District of Columbia. The Plaintiffs and
the putative collective worked for Rasika West as tipped
employees.

A copy of the Plaintiffs' motion dated July 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3Pqfhay at no extra
charge.[CC]

The Plaintiffs are represented by:

          Michael K. Amster, Esq.
          ZIPPIN, AMSTER & GREENBERG, LLC
          8757 Georgia Ave., Suite 400
          Silver Spring, MD 20910
          Telephone: (301) 587 9373
          Facsimile: (240) 839 9142
          E-mail: mamster@zagfirm.com


KOCH FOODS: To Settle Broiler Chickens Antitrust Action for $15.5M
------------------------------------------------------------------
Top Class Actions report Koch Foods agreed to pay $15.5 million to
resolve claims it violated antitrust laws to reduce the amount paid
to growers of broiler chickens.

The settlement benefits consumers or companies who were paid for
broiler chickens grow-out services by Koch, other antitrust
defendants and/or alleged co-conspirators between Jan. 27, 2013,
and Dec. 31, 2019.

Defendants in the case are Tyson, Pilgrim's Pride, Perdue Foods,
Koch and Sanderson Farms. Alleged co-conspirators are Agri Stats,
Foster Farms, Mountaire Farms, Wayne Farms, George's, Peco Foods,
House of Raeford Farms, Simmons Foods, Keystone Foods Fieldale
Farms, O.K. Industries, Case Foods, Marshall Durbin Companies,
Amick Farms, Mar-Jac Poultry, Harrison Poultry, Claxton Poultry
Farms and Norman W. Fries.

According to a 2021 consolidated class action lawsuit, the
defendants and alleged co-conspirators conspired together to reduce
the amount they paid to chicken growers for broiler grow-out
services.

Broiler grow-out services including raising chickens for larger
distributors to sell as broiler chickens in grocery stores. Farmers
may raise their own chickens and then sell them to larger companies
such as Tyson or Koch for processing.

The multidistrict litigation surrounding broiler grow-out services
claims the defendants in the case illegally worked together to
universally pay farmers less for broiler grow-out services. As a
result of companies' allegedly antitrust agreement, farmers and
other chicken growers were allegedly denied the payments they would
have received for broiler grow-out services in a fair market.

"As part of the scheme, the cartel members illegally agreed to
share detailed data on grower compensation with one another, with
the purpose and effect of artificially depressing grower
compensation below competitive levels," the antitrust class action
lawsuit explains.

"By disclosing their highly sensitive and confidential compensation
rates to each other, they suppressed competition for broiler
grow-out services and drove down compensation to all growers."

Koch hasn't admitted any wrongdoing but agreed to pay $15.5 million
to resolve these claims. Several other chicken processors,
including Tyson, agreed to pay a combined $181 million to resolve
similar allegations last year.

Under the terms of the settlement, class members can collect a cash
payment based on the total payments they received from Koch, other
defendants and co-conspirators.

Each payment will represent a proportional share of the settlement
fund. Class members who received a large share of the total
payments included in the settlement will receive a larger share of
the settlement fund. The deadline for exclusion and objection is
Sept. 23, 2022.

The final approval hearing for the settlement is scheduled for Oct.
28, 2022.  Claim forms are only required in certain circumstances
in order to receive a payment from the settlement.

Chicken growers who received a pre-populated claim form do not have
to do anything to receive a payment. However, those who believe
their pre-populated form needs to be disputed or corrected may
dispute their projected settlement payments by submitting a
corrected claim form by Feb. 6, 2023.

Class members who received an unpopulated claim form must complete
the form and submit it along with the required documentation and/or
answers on the form no later than Feb. 6, 2023.

The case is styled, In re Broiler Chicken Grower Antitrust
Litigation No. II, Case No. 6:20-md-02977-RJS-CMR, in the U.S.
District Court for the Eastern District of Oklahoma.  On the Web:
https://www.BroilerGrowersAntitrustSettlement.com

Claims Administrator:

   In re Broiler Chicken Grower Antitrust Litigation (Koch
Settlement)
   c/o Settlement Administrator
   1650 Arch Street, Suite 2210
   Philadelphia, PA 19103
   Info@BroilerGrowersAntitrustSettlement.com
   Tel: 833-907-3700

Class Counsel:

   Eric L. Cramer, Esq.
   BERGER MONTAGUE PC
   1818 Market St Suite 3600
   Philadelphia, PA 19103
   Tel: 215-875-3009
   Fax: 702-995-4658
   E-mail: ecramer@bm.net

     - and -

   Melinda R Coolidge, Esq.
   HAUSFELD LLP
   888 16th St NW Suite 300
   Washington, DC 20006
   Tel: 202-540-7144
   E-mail: mcoolidge@hausfeld.com

     - and -

   Gary I. Smith Jr.
   HAUSFELD LLP
   325 Chestnut St Unit 900
   Philadelphia, PA 19106
   Tel: 267-702-2318
   E-mail: gsmith@hausfeld.com

Defendant's Counsel:

   Scott W Pedigo, Esq.
   BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ PC
   One Eastover Center
   100 Vision Drive, Suite 400
   Jackson, MS 39211
   Tel: 601-351-2400
   Fax: 601-351-2424
   E-mail: spedigo@bakerdonelson.com

     - and -

   Russell W Gray, Esq.
   BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ PC
   633 Chestnut Street, Suite 1900
   Chattanooga, TN 37450
   Tel: 423-756-2010
   Fax: 423-756-3447
   E-mail: rgray@bakerdonelson.com [GN]

LANDMARK REALTY: Court Tosses Cheatem Bid for Class Certification
-----------------------------------------------------------------
In the class action lawsuit captioned as RHONDA CHEATEM v. LANDMARK
REALTY OF MISSOURI, LLC, Case No. 20-00958-CV-W-BP (W.D. Mo.), the
Hon. Judge Beth Phillips entered an order denying plaintiff's
motion for class certification of:

   "Individuals who, since April 13, 2015, were required to pay
   a payment labeled "security deposit" to submit an application
   to lease one of Landmark's Missouri residential properties,
   and such payment was deemed non-refundable if the application
   was not canceled within 48 [hours] of payment, and such
   payment was retained, in whole or part, by the Defendant
   after the prospective tenant's application was either
   withdrawn or denied."

The Court said, "The Plaintiff applied to rent an apartment from
Defendant, but her application was denied. She then filed suit,
asserting claims based on Defendant’s charging of certain fees in
connection with her application. Now pending is Plaintiff’s
Motion for Class Certification, which seeks to certify a class of
plaintiffs with respect to Counts I and III. However, in a separate
Order issued today, the Court granted Defendant summary judgment
with respect to Count III (and Counts II and IV, which are not at
issue with respect to the Motion to for Class Certification).
Therefore, the Court has limited its analysis in this Order to
Count I; having done so, the Motion for Class Certification, is
denied."

A copy of the Court's order dated July 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3c80jre at no extra charge.[CC]


LEE HECHT: Final Approval of Class Action Settlement Sought
-----------------------------------------------------------
In the class action lawsuit captioned as KATHLEEN B. LATHAM, an
individual, on behalf of herself and all other similarly situated
current and former employees, v. LEE HECHT HARRISON LLC and DOES 1
through 100, inclusive, Case No. 8:20-cv-01769-DOC-JDE (C.D. Cal.),
the Plaintiff asks the Court to enter an order granting motion for
final approval of class action settlement pursuant to Federal Rule
of Civil Procedure 23.

LHH is a global provider of talent acquisition and job recruitment
solutions.

A copy of the Plaintiff's motion dated July 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3IMFb6f at no extra
charge.[CC]

The Plaintiff is represented by:

          Mark C. Thomas, Esq.
          LAW OFFICE OF MARK C. THOMAS, APC
          555 Montgomery Street
          San Francisco, CA 94111
          Telephone: (415) 986-1338
          E-Mail: mark@mctlawoffice.com

               - and -

          James C. Pettis, Esq.
          PETTIS LAW FIRM LLP
          1604 Aviation Blvd
          Redondo Beach, CA 90278
          Telephone: (213) 545-6448
          Facsimile: (213) 816-1966
          E-Mail: jimpettis@pettislawfirm.com

MADISON AVENUE: Conditional Class Certification Granted in Part
---------------------------------------------------------------
In the class action lawsuit captioned as CHANG SOO HAN on behalf of
himself and all others similarly situated, v. MADISON AVENUE
REALTIES, LLC, EDWARD EDEN, Case No. 1:22-cv-00382-LJL (S.D.N.Y.),
the Hon. Judge Lewis J. Liman entered an order granting in part and
denying in part the Plaintiff's conditional certification of this
case as a collective action on behalf of all non-exempt building
maintenance employees of Madison Avenue Realties.

The Plaintiff brought this action under the Fair Labor Standards
Act (FLSA), and the New York Labor Law (NYLL) against the
defendants Madison Avenue and its president Edward Eden.

A copy of the Court's order dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3aUt8qP at no extra charge.[CC]

MATRIX ABSENCE: Weeks, et al., Seek to Certify Class of Examiners
-----------------------------------------------------------------
In the class action lawsuit captioned as Tina Weeks, Michael
McDonald, and Cassandra Magdaleno, individually and on behalf of
others similarly situated, v. Matrix Absence Management, Inc., an
Arizona Company, Case No. 2:20-cv-00884-SPL (D. Ariz), the
Plaintiffs ask the Court to enter an order:

   1. certifying a class under Rule 23 consisting of the
      following:

      "All individuals employed by Matrix in Oregon as
      "Telephone Claims Examiners" from May 6, 2018 to the
      Present through final disposition of this Action. The
      "Telephone Claims Examiners" include individuals who
      worked in the following positions: Claims Examiner-LOA;
      Claims Examiner-STD; or Claims Examiner-AMS, including all
      levels (I, II, or Senior);" and

2. appointing Plaintiffs' counsel to  serve as Class Counsel.

Matrix Absence provides absence management services. The Company
offers workers compensation, voluntary, and long and short term
disability.

A copy of the Plaintiffs' motion to certify class dated July 6,
2022 is available from PacerMonitor.com at https://bit.ly/3ce5FBg
at no extra charge.[CC]

The Plaintiffs are represented by:

          Jack Siegel, Esq.
          CLIFFORD P. BENDAU, II
          The Bendau Law Firm, PLLC
          P.O. Box 97066
          Facsimile: (480) 382-5176
          Telephone: (480) 382-5176
          E-mail: cliffordbendau@bendaulaw.com

               - and -

          Travis M. Hedgpeth, Esq.
          The Hedgpeth Law Firm, PC
          3050 Post Oak Blvd., Suite 510
          Houston, TX 77056
          Telephone: (281) 572-0727
          E-mail: travis@hedgpethlaw.com

               - and -

          Jack L. Siegel, Esq.
          SIEGEL LAW GROUP PLLC
          www.4overtimelawyer.com
          4925 Greenville, Suite 600
          Dallas, TX 75206
          Telephone: (214) 790-4454


MHC HERITAGE: Denial of Evidence Preclusion in Noel Suit Endorsed
-----------------------------------------------------------------
In the case, MICHAEL NOEL, KATHLEEN WIKSTEN, and CLAIRE LADOUCEUR,
Plaintiffs v. MHC HERITAGE PLANTATION, LLC, et al., Defendants,
Case No. 21-14492-CIV-MIDDLEBROOKS/MAYNARD (S.D. Fla.), Magistrate
Judge Shaniek M. Maynard of the U.S. District Court for the
Southern District of Florida recommends that the Motion to Preclude
Use of Evidence and Limit Damages be denied.

The Motion is filed by Defendants, MHC Heritage Plantation, LLC and
Equity Lifestyle Properties, Inc. ("ELS").

I. Background

On Dec. 21, 2021, the Plaintiffs filed a Class Action Complaint
alleging that the Defendants have failed to provide the Plaintiffs
and other similar situated mobile homeowners residing at Heritage
Plantation mobile home park with essential services for their
homes, including paved streets, sewer lines, and, when it rains, an
adequate storm drainage system. The Plaintiffs allege that this
failure has caused them to sustain personal injuries and property
damage, and they assert claims for breach of contract, breach of
the covenant of quiet enjoyment, negligence, private nuisance, and
trespass. On May 6, 2022, the Plaintiffs amended their complaint
and added three new Defendants to this action. DE 49. Defendants
have all filed answers with general denials and affirmative
defenses.

Fact discovery is now closed. Expert discovery is ongoing and is
expected to be completed by the recently-extended deadline of Oct.
31, 2022. The Plaintiffs have filed a revised motion for class
certification, which remains pending. The case is presently set for
trial during the two-week trial period beginning Jan. 3, 2023.

Defendant MHC Heritage owns Heritage Plantation mobile home park,
and Defendant ELS operates it. In the instant Motion, these two
Defendants seek to preclude the Plaintiffs from (i) relying on any
witness not included in the Plaintiffs' Rule 26(a)(1) initial
disclosures served on April 18, 2022; (ii) using any evidence not
disclosed therein; and (iii) seeking damages for personal property
and other categories of economic losses.

These Defendants also ask the Court to lift any restriction on the
Defendants' right to communicate with the putative class members.
In support of these requests, the Defendants maintain that the
Plaintiffs' initial disclosures were "materially and prejudicially"
non-compliant in that, among other things, they included only the
three named Plaintiffs despite the complaint's allegations
regarding numerous other homeowners and because Plaintiffs failed
to disclose any meaningful computation of damages sought.

The Plaintiffs counter that the Defendants failed to meaningfully
confer in good faith on this issue and, in any regard, the issue is
now moot. Plaintiffs maintain that within days of being alerted by
the Defendants to a potential issue with the initial disclosures,
the Plaintiffs served supplemental disclosures on Friday, April 22,
2022. The Plaintiffs' supplemental disclosures identify over 70
individuals and the Plaintiffs contend that 800 pages of relevant
questionnaires and other discoverable documents were also provided
to the Defendants.

Regarding damages, the Plaintiffs contend that their class
certification motion suggests that certain damages may be
calculated by experts relying on the Defendants' documents and
certain other damages need not be precisely computed as part of
Rule 26 disclosures. The Plaintiffs attach an affidavit by their
counsel, Lynn Ellenberger, which provides an overview of the
pertinent events and includes an attached exchange of emails among
counsel together with a copy of the Plaintiffs' supplemental
disclosures.

In their Reply, Defendants MHC Heritage and ELS maintain that the
Plaintiffs initial disclosures were "inexcusably non-compliant" and
that the supplemental disclosures fare no better. These Defendants
assert that the Plaintiffs continue to disclose witnesses on a
rolling basis and have still failed to provide any damages
computation. The Defendants argue that the Plaintiffs' failure to
timely provide complete initial disclosures is "gamesmanship" that
"significantly impedes the Defendants' preparation of their
defenses and their response to class certification, which imposes
unreasonable prejudice on them."

II. Discussion

Federal Rule of Civil Procedure 26 imposes disclosure and discovery
obligations on litigants in a lawsuit. Rule 26(a) governs required
disclosures, which lists information that "a party must, without
awaiting a discovery request, provide to the other parties." The
"party who is alleged to have failed to comply with Rule 26 bears
the burden to show that its actions were substantially justified or
harmless." Courts consider "the non-disclosing party's explanation
for its failure to disclose, the importance of the information, and
any prejudice to the opposing party if the information had been
admitted.

Judge Maynard finds that the Defendants prematurely filed their
motion without abiding by the letter and spirit of the Local Rules'
good faith conferral requirement. He does not find a substantial
delay or inexplicable failure by the Plaintiffs to comply with Rule
26's disclosure requirements as required to impose the extreme
sanctions sought by the Defendant.

In addition, Judge Maynard finds that the Defendants have not
articulated sanctionable prejudice. At the time the Motion was
filed, the parties were engaged in discovery and the record
reflects a flurry of activity relating to the issue of class
certification. That class certification motion has since been
revised and is now fully briefed. There is no sign that the
Defendants have been hampered or prejudiced in their ability to
defend the case.

Despite the premature nature of instant Motion, on the issue of
disclosing damage computations, Judge Maynard finds that the
Defendants' position has some merit. The Defendants seek to
prohibit the Plaintiffs from presenting evidence or argument of
certain categories of damages on grounds that the Plaintiffs have
failed to provide the required computation under Rule
26(a)(1)(A)(iii). In response, the Plaintiffs assert that their
pending class certification motion suggests that certain damages
will require experts relying on Defendants' documents and precise
computation under Rule 26 is not required for emotional distress
damages.

Judge Maynard is not persuaded by the Plaintiffs' response on this
issue. Rule 26 clearly requires parties to affirmatively disclose
"a computation of each category of damages claimed" together with
supporting material. Notwithstanding the contents of their class
certification motion, he finds that the Plaintiffs have a basic,
continuing obligation to provide a computation of damages sought to
the best of their ability, which can be supplemented as needed as
the case progresses. A wholesale prohibition on the Plaintiffs'
presentation of damages as requested by the Defendants is not
warranted. However, to the extent the Plaintiffs have not yet
complied with Rule 26's requirement to disclose damage
computations, Judge Maynard recommends that they be required to do
so.

III. Conclusion

Based on the foregoing, Judge Maynard respectfully recommends that
the Motion to Preclude Use of Evidence and Limit Damages be denies
as follows. The Defendants' request to preclude the Plaintiffs from
presenting witness testimony and other evidence not included in the
Plaintiffs' Rule 26 disclosures is unwarranted and should be
denied. The Defendants' request to preclude evidence or argument
concerning damages should be denied without prejudice and, to the
extent not already provided, the Plaintiffs should be ordered to
(1) provide to the Defendants supplemental disclosures with damage
computations and supporting materials in compliance with Rule
26(a)(1)(A)(iii) within five days of any Order on the Report and
Recommendation or sooner, and (2) promptly file a notice of
compliance confirming that this has been done.

The parties will have 14 days from the date of being served with a
copy of the Report and Recommendation within which to file written
objections, if any, with U.S. District Judge Donald M.
Middlebrooks. Failure to timely file objections will bar the
parties from a de novo determination by the District Judge of an
issue covered in the Report and Recommendation and will bar the
parties from attacking on appeal unobjected-to factual and legal
conclusions contained in this Report and Recommendation.
Conversely, if a party does not intend to object to the Report and
Recommendation, then that party will file a Notice of such within
five days of the date of this Report and Recommendation.

A full-text copy of the Court's July 15, 2022 Report &
Recommendation is available at https://tinyurl.com/2p96h3xx from
Leagle.com.


MIKE PIMPINELLI: Wilcox Class Cert. Bids Denied w/o Prejudice
-------------------------------------------------------------
In the class action lawsuit captioned as WILCOX v. PIMPINELLI, Case
No. 2:21-cv-02063 (D.N.J.), the Hon. Judge Edward S. Kiel entered
an order that the plaintiff's two motions for class certification,
respectively dated May 31, 2022 and June 22, 2022, have been filed
prematurely, are denied without prejudice.

The nature of suit states Prisoner Petitions -- Habeas Corpus --
Civil Rights.[CC]

MINNEAPOLIS, MN: Lowry Suit Remanded to Hennepin County State Court
-------------------------------------------------------------------
In the case, KIMBERLY LOWRY, on behalf of herself and the proposed
Rule 23 classes, Plaintiff v. CITY OF MINNEAPOLIS, a municipal
corporation; MINNEAPOLIS PUBLIC HOUSING AUTHORITY, in and for the
City of Minneapolis, a body corporate and politic; and COMMUNITY
HOUSING RESOURCES, a nonprofit corporation, Defendants, Case No.
21-CV-2189(PJS/TNL) (D. Minn.), Judge Patrick J. Schiltz of the
U.S. District Court for the District of Minnesota grants the
Plaintiff's motion to remand and remands the action to the District
Court for the Fourth Judicial District, County of Hennepin, State
of Minnesota.

I. Introduction

After allegedly enduring substandard living conditions in
Minneapolis public housing, Plaintiff Lowry brought the putative
class action in Minnesota state court against defendants
Minneapolis Public Housing Authority and Community Housing
Resources (collectively, "the Authority") and against Defendant
City of Minneapolis.

The Authority removed the action to the Court. Although each of
Lowry's causes of action arises under state law, the Authority
nevertheless contends that the Court has federal-question
jurisdiction because Lowry's claims necessarily raise a substantial
issue of federal law: Specifically, whether a federally funded
public-housing authority must comply with local rental-licensing
requirements.

The matter is before the Court on Lowry's motion to remand to state
court.

II. Background

The Authority is the largest public-housing authority in Minnesota,
owning or managing over 6,000 residential units (predominantly in
Minneapolis) and providing housing to about 10,500 residents. Most
of the Authority's funding comes from the United States Department
of Housing and Urban Development ("HUD").

Ms. Lowry alleges that the Authority's housing is subject to a
number of federal, state, and local requirements. Federal
regulations require the housing to be "decent, safe, sanitary and
in good repair." Those same regulations expressly "do not supersede
or preempt State and local codes for building and maintenance with
which HUD housing must comply"; rather, "HUD housing must continue
to adhere to these codes." Further, under Minnesota law, an
Authority project is "subject to the planning, zoning, sanitary,
and building laws, ordinances, and regulations applicable to the
locality in which the project is situated." And the Housing
Maintenance Code (the "HMC"), which is part of the Minneapolis Code
of Ordinances, imposes multiple safety and maintenance standards on
dwellings located in Minneapolis.

The HMC also imposes licensing and inspection requirements on
rental properties. The owner of a rental property (with some
exceptions not relevant here) must obtain a license for the
property before renting it. A rental-license holder must pay an
annual licensing fee. And a City inspector must inspect a rental
property before that property may be licensed.

Ms. Lowry has been a tenant in the same Authority property for over
a decade. She pays monthly rent to the Authority and complies with
her other obligations. The Authority made several promises in her
lease about the quality of her living space, including that the
Authority would "comply with applicable building codes, housing
codes and HUD regulations materially affecting health and safety"
and "maintain in good and safe working condition all electrical,
plumbing, heating, ventilation, sanitary and other facilities,
appliances and elevators supplied or required to be supplied by the
Authority."

According to Lowry, the Authority has not lived up to its promises.
"Through no fault of her family or of her own," Lowry alleges, her
unit has "damaged and loose vinyl asbestos floor tile," a washing
machine "installed in front of the electrical service box,"
"peeling paint," and a basement that "has flooded multiple times."
Lowry has reported these problems to the Authority, but the
Authority has "been slow" to repair her unit, "if at all."

Ms. Lowry also sought help from the City's 311 System, through
which "tenants in the City can contact the City to submit housing
condition complaints and request the City conduct inspections." But
City officials told Lowry that, because she lived in Authority
housing, the City could not help. What is more, Lowry alleges, the
City permits the Authority to operate its rental units without
obtaining licenses or undergoing City inspections, even though the
City enforces those requirements for other, privately owned rental
properties.

Ms. Lowry's complaint asserts six counts: one against the City,
three against the Authority, and two against both.

Against the City: Count I alleges that the City has violated the
Minnesota Human Rights Act by discriminating against recipients of
public assistance -- namely, by not providing licensing and
inspection services to public-housing tenants despite providing
such services to tenants in privately owned properties. Count III
seeks an order under HMC art. I, Section 244.80, compelling the
City to enforce the HMC with respect to the Authority's properties.
And Count VI alleges that the City violated the Minnesota Deceptive
Trade Practices Act by "creating confusion or misunderstanding"
over what services the City's 311 System would provide to
public-housing tenants.

Against the Authority: Count II alleges that the Authority has
breached its lease obligations by not maintaining its units and not
complying with applicable housing laws. Count III seeks an order
under HMC art. I, Section 244.80, compelling the Authority to
comply with the HMC. Count IV alleges that the Authority has
breached the covenant of habitability (incorporated into all
residential leases by virtue of a Minnesota statute) by failing to
comply with the HMC. Count V alleges that the Authority has
violated the Minnesota Consumer Fraud Act by operating unlicensed
rental properties, by falsely representing that it would comply
with applicable housing laws, and by falsely representing that it
would maintain its units in decent, safe, and sanitary condition.
Finally, Count VI alleges that the Authority has violated the
Minnesota Deceptive Trade Practices Act, essentially for the
reasons given in Count V.

Ms. Lowry brought the action in state court, naming as putative
classes several groups of the Authority's tenants. After the
Authority and the City filed their answers, the Authority removed
the action to federal court under 28 U.S.C. Section 1441(a),
1453(b), and 1446.

The Authority argues that this Court has federal-question
jurisdiction under 28 U.S.C. Section 1331. Specifically, the
Authority contends that Lowry's complaint necessarily raises a
federal issue -- that issue being whether 24 C.F.R. Section
5.703(g) (the federal regulation requiring public-housing
authorities to comply with state and local building and maintenance
codes) requires the Authority to purchase rental licenses in
accordance with the HMC. Lowry argues that the Court does not have
subject-matter jurisdiction and moves to remand her case to state
court.

III. Analysis

A. The Authority's Asserted Federal Issue

The Authority argues that this Court has federal-question
jurisdiction over Lowry's complaint for two reasons. First, the
Authority argues that Lowry must prove, as an element of her
claims, that a federal statute or regulation requires the Authority
to comply with Minneapolis' rental-licensing scheme. Second, the
Authority argues that, even if Lowry is not required to prove the
existence of such a statute or regulation, Lowry's claims
nevertheless require the Court to resolve a substantial question of
federal law.

A. The Authority Identifies a Preemption Defense, Not a Claim
Element

1. The Authority Identifies a Preemption Defense, Not a Claim
Element

The Authority's first argument relies on United States v. City of
St. Paul, in which the Eighth Circuit held that applying St. Paul's
nuisance-abatement code to federal public housing would
"impermissibly interfere with the operation of the National Housing
Act." In reaching its conclusion, the Eighth Circuit explained that
"the activities of federal installations are shielded by the
Supremacy Clause from direct state regulation unless Congress
provides 'clear and unambiguous' authorization for such
regulation." According to the Authority, City of St. Paul
establishes that local ordinances cannot be enforced against
federally funded public-housing authorities unless a federal
statute so authorizes.5 As a result, the Authority argues, Lowry
must prove -- as part of her case-in-chief -- that a federal
statute explicitly authorizes the enforcement of Minneapolis's
rental-license regulations against the Authority.

Judge Schiltz holds that the Authority's premises are flawed.
First, City of St. Paul was addressing a defense -- the defense of
preemption -- not the elements of a claim. Second, even if the
Authority were correct that Lowry bears the burden of proving that
her claim is not preempted by federal law, what matters is not who
bears the burden of proof on a single "federal element," but
whether federal law creates the right to relief. At bottom, the
Authority has raised a classic preemption defense, and the Supreme
Court has been clear that a defendant does not create
federal-question jurisdiction by raising a preemption defense to a
state-law claim.

Ms. Lowry filed a state-court action based solely on state and
local laws, contending that the Defendants broke those laws and
breached their contracts. The Authority removed the case to federal
court on the ground that, under the Supremacy Clause, the state and
local laws were preempted by federal law. It was the Authority, not
Lowry, who injected a federal question into the action.

2. Lowry's Complaint Does Not Necessarily Raise a Federal Issue

The Authority's second argument -- an appeal to the Grable & Sons
Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005),
line of cases -- is similarly unavailing, Judge Schiltz holds. In
Grable, the Supreme Court acknowledged that "in certain cases
federal-question jurisdiction will lie over state-law claims that
implicate significant federal issues." The Supreme Court has not
clearly demarcated the boundaries of this category of cases, but
the Court has emphasized that the category is "special and small"
and "slim."

The Authority is mistaken, Judge Schiltz finds. Broadly speaking,
each count in Lowry's complaint alleges that a defendant should be
held liable because the defendant did not do a bunch of things that
it was required to do under state and local law. The Authority's
failure to obtain rental licenses is one of those things, but it is
never the only thing. Hence, Lowry can obtain relief on every count
even if she cannot prove that the Authority was required to obtain
rental licenses. She can do so by proving (a) that the City
discriminated on the basis of public-assistance status in its
inspection practices (Count I); (b) that the Authority did not
comply with numerous provisions of the HMC regarding the
maintenance of rental housing (Counts II-VI); (c) that the City
failed to enforce those maintenance provisions of the HMC (Count
III); and (d) that the City's conduct created confusion or
misunderstanding about its 311 System (Count VI).

In short, the Court can grant relief to Lowry on every count in her
complaint without deciding whether federal law preempts the HMC's
requirement that the Authority obtain rental licenses for its
properties. The case therefore does not fall within the "small"
category of cases described by Grable.

IV. Conclusion

Judge Schiltz concludes that the licensing issue cited by the
Authority is a preemption defense, not an element of a claim, and
the issue does not meet the strict requirements for triggering
federal-question jurisdiction under Grable. Thus, the Court does
not have subject-matter jurisdiction, and the case must be remanded
to state court.

For these reasons, Judge Schiltz grants the Plaintiff's motion to
remand. He remands the action to the District Court for the Fourth
Judicial District, County of Hennepin, State of Minnesota.

Judge Schiltz orders that Judgment be entered accordingly.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/2p8e9j95 from Leagle.com.

Anna P. Prakash -- aprakash@nka.com -- and Nicole Schladt --
nschladt@nka.com --  NICHOLS KASTER, PLLP; John R. Shoemaker and
Paul F. Shoemaker, SHOEMAKER & SHOEMAKER, P.L.L.C.; Lawrence
McDonough, LARRY McDONOUGH, ESQ., for the Plaintiff and the
putative classes.

Tracey N. Fussy and Sharda Enslin, MINNEAPOLIS CITY ATTORNEY'S
OFFICE, for Defendant City of Minneapolis.

Suzanne L. Jones -- sljones@grsm.com -- Benjamin R. Kinney --
bkinney@grsm.com -- and Anthony B. Corleto -- tcorleto@grsm.com --
GORDON REES SCULLY MANSUKHANI LLP; Kenneth H. Bayliss, QUINLIVAN &
HUGHES, P.A., for Defendants Minneapolis Public Housing Authority
and Community Housing Resources.


NATIONAL PACKAGING: Settlement Gets Final Approval in Guzman
------------------------------------------------------------
In the class action lawsuit captioned as Guzman v. National
Packaging Services Corporation, Case No. 19-cv-1722-pp (E.D.
Wisc.), the Hon. Judge Pamela Pepper entered an order:

   1. granting joint motion for final settlement approval;

   2. granting petition for attorneys' fees and class
      representative incentive awards;

   3. denying motion to seal;

   4. directing the plaintiffs to file a redacted version of the
      spreadsheet and dismissing case.

The Plaintiff Libna Guzman filed a collective and class action on
behalf of herself and similarly situated hourly production
employees who worked at the NPS production facilities in Wisconsin.


Magistrate Judge William Duffin facilitated resolution of the case,
and once the parties had filed their joint motion for a collective
and class settlement and supporting brief, the court granted the
motion for preliminary approval of the settlement, dkt. The court
scheduled a fairness hearing for June 2, 2022 at 9:30 a.m., id.,
but the plaintiffs asked the court to reschedule it to give them
additional time to complete their calculations allocating the
settlement fund to the class members. The court granted the motion
and rescheduled the hearing to July 6, 2022.

National Packaging manufactures miscellaneous converted paperboard
products.

A copy of the Court's order dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3Pl94x3 at no extra charge.[CC]



NATIONSTAR MORTGAGE: Appeals Remand Ruling in Kushner Suit
----------------------------------------------------------
NATIONSTAR MORTGAGE, LLC is appealing a court ruling remanding the
lawsuit styled Paul Kushner, individually and on behalf of all
others similarly situated v. Nationstar Mortgage LLC d/b/a Mr.
Cooper, Case No. 1:22-cv-00598 to the Cuyahoga County Court of
Common Pleas from the U.S. District Court for the Northern District
of Ohio at Cleveland.

The dispute is centered on the Plaintiff's allegations that
Nationstar charged improper fees related to his residential
mortgage. Specifically, the Plaintiff alleges Nationstar charged
improper "Third Party Reconveyance Preparation Fees" or "Third
Party Reconveyance/Release Preparation Fees" that were "not limited
to actual payments to any third parties," as well as "County
Recording Fees" in excess of the actual amount of fees paid to the
government (collectively, the "Fees"). He brings one cause of
action under Ohio Rev. Code Section 5301.36(B). He brings the
action on behalf of himself and a class of individuals, who were
similarly charged these Fees.

The Plaintiff filed his class action complaint in the Cuyahoga
County Common Pleas Court on March 7, 2022. On March 28, 2022, he
filed an Amended Complaint in the same court. On April 13, 2022,
Nationstar timely removed this case to federal court pursuant to
the Class Action Fairness Act ("CAFA"). In its notice of removal,
Nationstar stated that it satisfied the CAFA removal requirements
because the parties are minimally diverse, there are at least 100
class members, and the amount in controversy exceeds $5 million.

On April 14, 2022, the Plaintiff moved to remand his case to the
Cuyahoga County Court of Common Pleas for want of subject matter
jurisdiction, pursuant to 28 U.S.C. Section 1447(c). Nationstar
filed an opposition on April 28, 2022, and the Plaintiff replied on
May 2, 2022. Nationstar then filed a Motion to Dismiss on May 12,
2022. The Court granted Plaintiff's request to withhold opposing
the Motion to Dismiss until the Motion to Remand was resolved.

As reported in the Class Action Reporter on July 11, 2022, Judge
Bridget M. Brennan of the U.S. District Court for the Northern
District of Ohio granted the Plaintiff's motion to remand to state
court.

The appellate case is captioned as In re: Nationstar Mortgage, LLC,
Case No. 22-0306, in the United States Court of Appeals for the
Sixth Circuit, filed on July 5, 2022.[BN]

Defendant-Petitioner In re: NATIONSTAR MORTGAGE, LLC, dba Mr.
Cooper, is represented by:

          Matthew Allen Fitzgerald, Esq.
          Mcguirewoods
          800 E. Canal Street
          Richmond, VA 23219
          Telephone: (804) 775-4716

               - and -

          K. Issac deVyver, Esq.
          Mcguirewoods
          260 Forbes Avenue, Suite 1800
          Pittsburgh, PA 15222
          Telephone: (412) 667-7988

Plaintiff-Respondent PAUL KUSHNER, individually and on behalf of
all others similarly situated, is represented by:

          Brian Ruschel, Esq.
          925 Euclid Avenue, Suite 660
          Cleveland, OH 44115-0000
          Telephone: (216) 621-3370
          E-mail: bruschel@aol.com

NEW YORK UNIVERSITY: De Leon Seeks Reconsideration of June 22 Order
-------------------------------------------------------------------
In the class action lawsuit captioned as NELCY GARCIA DE LEON,
individually and on behalf of all others similarly situated, v. NEW
YORK UNIVERSITY, Case No. 1:21-cv-05005-CM-SDA (S.D.N.Y.), the
Plaintiff asks the Court to enter an order granting reconsideration
of the Decision and Order of June 22, 2022 denying the Plaintiff's
Motion for Class Certification and dismissing Plaintiff's Class
Action Complaint containing allegations for breach of contract, and
unjust enrichment on the basis that there is a need to correct
clear error of law or prevent manifest injustice.

New York University is a private research university in New York
City. Chartered in 1831 by the New York State Legislature, NYU was
founded by a group of New Yorkers led by then-Secretary of the
Treasury Albert Gallatin.

A copy of the Plaintiff's motion dated July 6, 2022 is available
from PacerMonitor.com at https://bit.ly/3RWZNwX at no extra
charge.[CC]

The Plaintiff is represented by:

          Blake G. Abbott, Esq.
          Roy T. Willey, IV, Esq.
          Eric M. Poulin, Esq.
          Paul Doolittle, Esq.
          ANASTOPOULO LAW FIRM, LLC
          32 Ann Street
          Charleston, SC 29403
          Telephone: (843) 614-8888
          E-mail: blake@akimlawfirm.com
                  roy@akimlawfirm.com
                  eric@akimlawfirm.com
                  paul@akimlawfirm.com

               - and -

          Edward Toptani, Esq.
          TOPTANI LAW, PLLC
          375 Pearl Street, suite 1410
          New York, NY 10038
          Telephone: (212) 699-8930
          E-mail: edward@toptanilaw.com

NEW YORK, NY: $2.6-Mil. in Attorneys' Fees Awarded in Grottano Suit
-------------------------------------------------------------------
In the case, DANA GROTTANO, et al., Plaintiffs, v. CITY OF NEW
YORK, et al., Defendants, Case No. 15 CV 9242 (RMB) (S.D.N.Y.),
Judge Richard M. Berman of the U.S. District Court for the Southern
District of New York issues Decision & Order:

   a. awarding to the Class Counsel the total amount of $2.6
      million in attorneys' fees;

   b. awarding $10,574.94 in expenses; an additional $998.88 may
      be awarded, subject to the Class Counsel providing
      supporting documentation; and

   c. ordering and directing the Class Counsel to reimburse
      and/or share with the Defendants one half (50%) of the
      total amount of claims administration fees paid or to be
      paid to the Claims Administrator in excess of $500,000.

I. Introduction

The Decision & Order resolves the Plaintiffs' Motion for Attorneys'
Fees and Expenses, dated Sept. 21, 2021, seeking $4.5 million plus
$14,651.48 in expenses; and the Defendants' Cross Motion for
Reimbursement of Administrative Costs, dated Oct. 8, 2021, seeking
"reimbursement from the Class Counsel's attorneys' fees for the
amount paid to the Claims Administrator" in excess of $500,000.

II. Background

A. Motion for Attorneys' Fees and Expenses

The parties' settlement agreement, dated June 20, 2019, provides
for distribution of a $12.5 million settlement fund to the class
members who were subjected to invasive searches when visiting New
York City Department of Correction ("DOC") facilities between Nov.
23, 2012 and Oct. 30, 2019. The Settlement Agreement also includes
an injunction against the DOC which requires changes to DOC visitor
search protocols, including a two-year period of oversight of DOC
visitor searches by the Class Counsel.

The Settlement Agreement also provides that "each eligible claimant
will receive a minimum of $1,000, unless they are part of the
sub-category of individuals who were found with contraband during
their visit to a DOC facility," in which case "they will receive
$500." See Stipulation Modifying the Class Action Settlement
Agreement, dated Apr. 22, 2021 ("Settlement Modification"). The
settlement checks were mailed to all class members in early 2022.

As detailed in the Court's Nov. 29, 2021 Decision and Order, the
Defendants also advised the Court that they have implemented the
injunctive relief by, among other things, revising DOC "policies
and procedures concerning searches of visitors to DOC facilities"
and "training materials regarding visitor searches." DOC has also
revised its visitor "pat-frisk poster" which is "prominently placed
in all visit areas, so that visitors know what to expect if they
consent to a pat-frisk search."

During the oversight period, which began on Nov. 29, 2021, the
"Class Counsel is permitted to visit every DOC facility twice with
a DOC legal escort," and "observe up to six officer training
sessions." DOC is providing the "Class Counsel all visitor
complaints received by DOC Constituent Services, and the Class
Counsel will review the complaints for any indication of improper
search practices."

The Settlement Agreement also provides for the Class Counsel
"seeking Court approval for attorneys' fees of up to $5.4 million,"
which are to be paid by the Defendants independently of the
Settlement Fund. The Class Counsel has submitted billing records
("Class Counsel Billing Records") as well as a supplemental
declaration, dated March 4, 2022, stating that their billing
records reflect a lodestar amount (before applying a multiplier) of
$2,561,625.65.

The Class Counsel argue that a multiplier of 1.76 should be applied
to the lodestar amount "because the case required an extraordinary
amount of time and labor and involved difficult and complex legal
questions, significant risk, and a defendant with substantial
resources" and because a multiplier would compensate for the time
spent "overseeing the administration of the settlement and
monitoring the injunctive relief."

The Class Counsel argue that a $4.5 million attorneys' fee award is
reasonable under the factors articulated in Goldberger v.
Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000) because,
among other things, (1) "three law firms spent thousands of hours
investigating, litigating, and settling this sprawling case"; (2)
the case "successfully challenged systemic constitutional
violations and ensured that thousands of visitors to City jails
receive just compensation for their injuries and Class Counsel
secured a robust injunctive relief regimen that will help to
protect hundreds of thousands of visitors"; (3) "the case appears
to be the first damages class action filed on behalf of visitors to
correctional facilities who were subjected to unlawfully invasive
searches"; (4) the Class Counsel's representation reflects
"substantial civil rights and class action experience"; (5) the
requested award "is well within the range of similarly sized class
action settlements"; and (6) "the proposed fee award strikes the
right balance between moderation and encouraging litigants to bring
forward substantive and impactful cases that are crucial to
enforcing our constitutional liberties."

The Defendants oppose the Motion by memorandum, dated Oct. 8, 2021,
arguing that the "Class Counsel's total fee award should be limited
to between $2.4 and $2.6 million" and that expense reimbursement
should be reduced to $10,574.94. They also submitted a letter,
dated March 11, 2022, in further opposition to the Motion stating,
among other things, that a reduction of Class Counsel's "lodestar
to $2 million would be appropriate and that multiplying the
adjusted lodestar of $2 million by 1.2 to 1.3 would yield a range
of $2.4 to $2.6 million for the attorney's fee award."

The Defendants contend that the Class Counsel's requested fee award
of $4.5 million is unreasonable under the six Goldberger factors
because: (1) while "Class Counsel expended a substantial amount of
time and labor on the case their time was spent inefficiently and
their records have a number of deficiencies"; (2) no "legal or
evidentiary difficulties made this case more complex to litigate
than other class actions against municipal entities"; (3)
litigation here was not "any riskier than any other class action
against the City of New York"; (4) "courts should not necessarily
award an increased fee where counsel simply displays the general
level of skill expected"; (5) "a fee award closer to 15.4% to
16.5%, or $2.4 million to $2.6 million, is reasonable, and would be
in line with prior class action settlements decided by the Court";
and (6) a lower award would "balance the overarching concern for
moderation with public policy considerations of encouraging the
filing of Section 1983 actions."

B. Problems with Initial Claims Notice and Much Lowered
Expectations

As discussed in the Court's Nov. 29, 2021 Decision and Order, the
parties' first effort in December 2019 to notify the potential
class members of the settlement was seriously flawed. The original
notice and claim form to the potential class members ("Initial
Claims Notice") stated that the Settlement Agreement includes cash
payments of up to $12.5 million to the class and that "Settlement
Class Members will be eligible to receive a payment of
approximately $4,000." In response to the Initial Claims Notice,
more than 40,000 people submitted claims, which would have yielded
average payments of less than $300 per claimant -- far below the
Initial Claims Notice's estimate of "approximately $4,000."

Following this serious underestimation by the parties of the number
of potential claimants, the parties reversed course and returned to
the negotiating table to address the problems with the Initial
Claims Notice. They spent over a year re-negotiating a new
settlement structure and fashioning a new claims notice to
supersede the Initial Claims Notice.

Among other things, the new notice and claim form required
substantial additional information from claimants to enable the
parties better to determine each claimant's eligibility to
participate in the settlement, including "the date and location of
the searches they experienced as well as a narrative description of
those searches." The new notice and claim form was mailed to the
same 40,000 individuals who had submitted claims in response to the
Initial Claims Notice on May 16, 2021. And, it ultimately resulted
in approximately 12,500 substantiated claims rather than the 40,000
claims submitted in response to the Initial Claims Notice. As the
new notice and claim form indicated, Defendants agreed to a $1,000
minimum payment for all verified claims.

C. Cross Motion for Reimbursement of Administrative Costs

On Oct. 8, 2021, the Defendants filed their Cross Motion which
seeks reimbursement from the "Class Counsel's attorneys' fee award"
of claims administration fees that Defendants have paid or will pay
to the Claims Administrator in excess of $500,000. They contend
that they should be reimbursed for payments they have made or will
make to the Claims Administrator totaling more than $500,000
because: (1) "the Settlement Agreement provides that Defendants
would not reimburse the Claims Administrator for any amount in
excess of $500,000"; and (2) decisions regarding the Initial Claims
Notice that the Defendants opposed led to the new notice,
additional proceedings, protracted claims period, and overrun of
administrative costs.

The Class Counsel oppose the Cross Motion, arguing that: (1) the
Defendants "negotiated and agreed to the $159,024 additional costs"
of the first round of claims administration; and (2) the Defendants
also agreed to the Initial Claims Notice which "did not seek
specific information about claimants' searches they knew the costs
of sending a second claim form and the costs of reviewing the claim
forms. And the Defendants agreed to all of it."

III. Analysis

A. Motion for Attorneys' Fees and Expenses

In Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 50 (2d
Cir. 2000), no matter which method is chosen, district courts
should be guided by the traditional criteria in determining a
reasonable common fund fee, including: (1) the time and labor
expended by counsel; (2) the magnitude and complexities of the
litigation; (3) the risk of the litigation; (4) the quality of
representation; (5) the requested fee in relation to the
settlement; and (6) public policy considerations.

Applying the Goldberger factors, employing the percentage method
with a lodestar cross check, and considering that the City of New
York will be paying the legal fees, Judge Berman finds that the
Class Counsel's request for $4.5 million in attorneys' fees
("Requested Award") is excessive. He awards to the Class Counsel
$2.6 million as the total legal fees in the case, which equates to
20.8% of the $12.5 million Settlement Fund. He also awards
$10,574.94 in expenses, and an additional $998.88 subject to the
Class Counsel providing certain supporting documentation for the
$998.88.

The Class Counsel suggests that the Court uses $17.7 million,
rather than the $12.5 million Settlement Fund with reference to the
percentage of the fund. According to the Class Counsel, $17.7
million represents the total "benefit to the class" and "is
comprised of the Settlement Fund [$12.5 million], the requested
attorneys' fees [$4.5 million], and the settlement administration
costs (approximately $700,000, to date)."

In this District, when awarding fees on a percentage-of-the-fund
basis, the denominator is usually the settlement net of costs. If,
arguendo, the Settlement Fund were to be "pooled" together with the
requested attorneys' fee award and the claims administration costs,
a $2.6 million award would represent 14.7% of the total.

Judge Berman finds that (i) a 20.8% fee award strikes the right
balance between outcomes for the class and encouraging litigants to
bring forward impactful cases concerning constitutional liberties;
(ii) an attorneys' fee award of $2.6 million is reasonable; and
(iii) the Class Counsel is not entitled to reimbursement for the
$3,077.66 mediation expense. Judge Berman awards the Class Counsel
$10,574.94 in expenses. He authorizes an additional $998.88 for
"Printing Notice for DOC Facilities" subject to the Class Counsel
providing the Court with additional documentation supporting that
expense by Aug. 15, 2022. The Dec. 6, 2019 email between the Class
Counsel and the Defendants attached to the Reply Declaration of
Oren Giskan, dated Oct. 15, 2021, is not alone sufficient
documentation for the expense.

B. Cross Motion for Reimbursement of Administrative Costs

The dispute is not entirely simple because the Settlement Agreement
contemplates a maximum of $500,000 in administrative costs, which
limit was exceeded by March of 2020. Because of the flawed Initial
Claims Notice and attendant proceedings, claims administration
costs currently exceed $1 million.

The Defendants agreed to pay for the second round of notice and
claims administration, but in doing so they "reserved the right to
seek partial or full reimbursement of this amount from Class
Counsel attorneys' fees application."

Judge Berman finds that the most equitable solution is to have both
sides share the claims administration costs in excess of $500,000.
Defendants are entitled to reimbursement from the Class Counsel's
fee award of one half (or 50%) of the amount the Defendants have
paid (or will pay) to the Claims Administrator, over and above the
$500,000 the Defendants agreed to pay in the Settlement Agreement.
The Defendants are entitled to reimbursement because (1) they
reserved their right to seek reimbursement for administrative costs
in excess of $500,000; and (2) the Class Counsel and the Defendants
s share responsibility for the notice problems and the resulting
overrun in administrative costs.

IV. Conclusion & Order

For the foregoing reasons, Judge Berman grants in part and denies
in part the Class Counsel's Motion for Attorneys' Fees and
Expenses. He awards (i) the Class Counsel $2.6 million in
attorneys' fees; and (ii) $10,574.94 in expenses. He also intends
to award an additional $998.88 in expenses subject to the Class
Counsel providing further documentation for the "Printing Notice
for DOC Facilities" expense by Aug. 15, 2022.

Judge Berman grants in part and denies in part the Defendants'
Cross Motion for Reimbursement of Administrative Costs. He orders
the Class Counsel to reimburse (from the $2.6 million attorneys'
fee award) the Defendants for half of the total amount of fees paid
and to be paid to the Claims Administrator in excess of $500,000.

A full-text copy of the Court's July 15, 2022 Decision & Order is
available at https://tinyurl.com/meyh2zk4 from Leagle.com.


NEXTEP INC: Loomis, et al., Seek Initial OK of Settlement Deal
--------------------------------------------------------------
In the class action lawsuit captioned as BRIAN LOOMIS, JASON BOYER
and DANIEL W. KILDAY, individually and on behalf of all others
similarly situated, v. NEXTEP, INC., THE BOARD OF DIRECTORS OF
NEXTEP, INC., THE INVESTMENT COMMITTEE OF NEXTEP, INC. and JOHN
DOES 1-30, Case No. 5:21-cv-00199-HE (W.D. Okla.), the Plaintiffs
file an unopposed motion for preliminary approval of class action
settlement agreement entered into with Defendants, preliminary
approval of class notice, approval of plan of allocation, and
scheduling of a fairness hearing.

Nextep provides comprehensive HR, benefits, payroll, and risk &
compliance solutions for your business.

A copy of the Plaintiffs' motion dated July 8, 2022 is available
from PacerMonitor.com at https://bit.ly/3PEl3p1 at no extra
charge.[CC]

The Plaintiffs are represented by:

          Mark K. Gyandoh, Esq.
          Gabrielle Kelerchian, Esq.
          Donald R. Reavey, Esq.
          CAPOZZI ADLER, P.C.
          312 Old Lancaster Road
          Merion Station, PA 19066
          Telephone: (610) 890-0200
          Facsimile (717) 233-4103
          E-mail: markg@capozziadler.com
                  gabriellek@capozziadler.com
                  donr@capozziadler.com

NORTHWEST MOTORSPORT: Class Cert. Schedule Amended in Villafan
--------------------------------------------------------------
In the class action lawsuit captioned as SETH VILLAFAN, et al., v.
NORTHWEST MOTORSPORT, LLC, et al., Case No. 2:20-cv-01616-TSZ (W.D.
Wash.), the Hon. Judge entered an order granting the parties' Joint
Stipulated Motion to Continue Trial Date and All Related Pretrial
Deadlines.

The Court issues the following amended schedule:

  -- Jury Trial Set for                     September 11,2023

  -- Discovery on class certification       August 22, 2022
     issues completed by:

  -- Class certification motions due:       October 20, 2022

  -- Expert Witness Disclosure/Reports      January 3, 2023
     under FRCP 26(a)(2) due by:

  -- Motions related to discovery due by:   January 19, 2023

  -- Discovery completed by:                February 16, 2023

Northwest Motorsport is the largest truck center on the west
coast.

A copy of the Court's order dated July 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3PzJFiI at no extra charge.[CC]


PARAMOUNT RESIDENTIAL: Discovery on Class Cert Issues Due August 19
-------------------------------------------------------------------
In the class action lawsuit captioned as NTAN v. PARAMOUNT
RESIDENTIAL MORTGAGE GROUP, INC., Case No. 1:21-cv-01583 (D.D.C.),
the Hon. Judge Jia M. Cobb entered an order on motion for extension
of time to complete discovery.

The Discovery on class-certification issues will now close on
August 19, 2022, Judge Cobb says.

The suit involves Consumer Credit Protection-billing errors.

Paramount operates as a mortgage industry.[CC]

PAYPAL INC: Bids to File Friends' Second Amended Complaint Denied
-----------------------------------------------------------------
In the case, FRIENDS FOR HEALTH SUPPORTING THE NORTH SHORE HEALTH
CENTER, et al., Plaintiffs v. PAYPAL, INC. and PAYPAL CHARITABLE
GIVING FUND, Defendants, Case No. 17 CV 1542 (N.D. Ill.), Judge
Marth M. Pacold of the U.S. District Court for the Northern
District of Illinois, Eastern Division, denies the Plaintiffs'
motions for leave to file a second amended complaint.

Terry Kass and charities Friends for Health: Supporting the North
Shore Health Center, DC Central Kitchen, and Kol Hadash Humanistic
Congregation (together, "Charity Plaintiffs") filed the putative
class action lawsuit against Defendants PayPal, Inc. and PayPal
Charitable Giving Fund, alleging that the Defendants engaged in
misconduct related to soliciting and distributing charitable
donations.

The Defendants moved to compel individual arbitration under the
Federal Arbitration Act ("FAA"), and the prior judge assigned to
the case granted the motion and stayed the case. Kass and the
Defendants have undergone arbitration and they have now filed
cross-motions to confirm or vacate the arbitrator's award. Those
cross-motions remain pending.

Meanwhile, Kass, proceeding pro se, and the Charity Plaintiffs
moved for leave to file a second amended complaint. They seek to
add new parties and claims that they argue are not subject to
arbitration.

The Charity Plaintiffs contend that, despite the stay, they should
be allowed to amend their claims because they are not presently
engaged in arbitration and their proposed amended complaint brings
new claims that the Charity Plaintiffs assert are not subject to
arbitration. The Charity Plaintiffs cite only MacRury v. American
Steamship Co., No. 16-cv-13889, 2017 WL 4803704 (E.D. Mich. Oct.
26, 2017), in support.

MacRury, however, is inapposite, Judge Pacold opines. Unlike
Charity Plaintiffs, the plaintiff in MacRury actually moved to lift
the stay. Further, although the court in MacRury lifted the stay to
allow the plaintiff to amend his complaint to assert new claims not
subject to arbitration, the court did not explain why it was
appropriate to do so—particularly in light of the FAA's seemingly
mandatory command that the court "shall stay the trial of the
action until such arbitration has been had." Thus, even if MacRury
was applicable, Judge Pacold finds it unpersuasive. Kass makes no
argument about whether it is, or is not, appropriate to allow
amendment in light of the stay.

Judge Pacold denies the motions to amend because the case is
presently stayed under 9 U.S.C. Section 3, which mandates that the
stay remain in place until arbitration has been completed. Even if
the FAA provides courts discretion over whether to keep the stay in
place, the parties have not presented the court with any compelling
reason to lift the stay and allow amendment at this time. Neither
the Charity Plaintiffs nor Kass has identified any change in
circumstances that requires their proposed amendment to be granted
now. Further, "leaving the stay intact until the completion of
arbitration serves the interests of judicial economy and advances
Congress's purpose in enacting the FAA: 'To ensure the enforcement
of arbitration agreements according to their terms so as to
facilitate streamlined proceedings.'"

A full-text copy of the Court's July 13, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/ye3dff9z from
Leagle.com.


PHILADELPHIA INDEMNITY: Wins Judgment on Pleadings Bid in Kenney
----------------------------------------------------------------
In the case, KENNEY PROPERTIES, INC., KENNEY HOLDINGS, LLC, KENNEY
REALTY SERVICES, LLC, and GRESHAM PARK, LLC, Plaintiffs v.
PHILADELPHIA INDEMNITY INSURANCE COMPANY, Defendant, Case No.
5:21-CV-308-D (E.D.N.C.), Judge James C. Denver, III, of the U.S.
District Court for the Eastern District of North Carolina, Western
Division, grants Philadelphia's motion for judgment on the
pleadings and dismisses Kenney's complaint.

I. Introduction

On July 27, 2021, Kenney Properties, Inc., Kenney Holdings, LLC,
Kenney Realty Services, LLC, and Gresham Park, LLC doing business
as Autumn Pointe Apartments (collectively "Kenney" or "Plaintiffs")
filed a complaint against Philadelphia Indemnity Insurance Co.
("Philadelphia") alleging breach of contract for its failure to
defend and indemnify Kenney in an underlying state court action,
and alleging violations of North Carolina's Unfair and Deceptive
Trade Practices Act ("UDTPA"), N.C. Gen. Stat. Sections 75-1, et
seq.

On Sept. 7, 2021, Philadelphia answered Kenney's complaint and
filed a counterclaim seeking a declaratory judgment that it was not
required to defend or indemnify Kenney. On Sept. 28, 2021, Kenney
answered Philadelphia's counterclaim. On Nov. 11, 2021,
Philadelphia moved for judgment on the pleadings and filed a
memorandum in support. On Dec. 17, 2021, Kenney responded in
opposition. On Dec. 31, 2021, Philadelphia replied.

II. Background

Kenney Properties is a North Carolina corporation with its
principal place of business in Raleigh, North Carolina. Kenney
Holdings, Kenney Realty, and Gresham Park are North Carolina
limited liability companies with member/managers and principal
places of business in Raleigh, North Carolina. Philadelphia is a
Pennsylvania insurance company with its principal place of business
in Pennsylvania. The Kenney entities offer apartments for rent in
North Carolina. During the relevant period, Philadelphia insured
Kenney Properties under a commercial lines policy.

The North Carolina Residential Rental Agreements Act ("RRAA"), N.C.
Gen. Stat Sections 42-38, et seq., governs the rights, obligations,
and remedies of parties to a North Carolina residential rental
agreement. The RRAA specifies what fees, costs, and expenses a
landlord can charge if a tenant fails to timely pay the agreed-upon
rent. Before 2018, the statute explicitly allowed landlords to
charge a "Late Fee" and one of the following: "Complaint-Filing
Fee," "Court-Appearance Fee," or "Second Trial Fee."

In 2018, after a court decision holding that charging other
eviction fees violated North Carolina law, the North Carolina
General Assembly amended the RRAA to allow landlords to charge
additional "out-of-pocket expenses," including filing fees charged
by the court, costs for service of process, and reasonable
attorneys' fees. Because the RRAA did not specifically delineate
these expenses before the 2018 amendment, some litigants argued
that the RRAA did not authorize these "out-of-pocket expenses"
before the effective date of the 2018 amendment. These litigants
filed numerous lawsuits seeking reimbursement of such expenses that
tenants paid before the 2018 amendment took effect.

The action underlying this coverage dispute is one such suit. On
Sept. 4, 2018, Alisa Brogden filed the underlying state court
action (the "Brogden Action") in Wake County Superior Court. On
June 19, 2020, the U.S. Court of Appeals for the Fourth Circuit
addressed the pre-2018 scope of the RRAA in Suarez v. Camden
Property Trust, 818 F. App'x 204 (4th Cir. 2020) (unpublished). On
Oct. 8, 2020, after the Fourth Circuit's Suarez decision, Kenney
settled the Brogden Action. In the settlement, Kenney agreed to pay
$500,000 into a settlement fund to be disbursed to two classes. On
Jan. 14, 2021, the Wake County Superior Court approved the
settlement.

The parties agree that Philadelphia insured Kenney under a
commercial lines policy that governed Philadelphia's duties to
Kenney regarding the Brogden Action. The parties agree that
Coverage A of the policy does not apply. And regardless of
immaterial disputes about which version of the policy applies, the
parties cite the same policy language for Coverage B and the
applicable endorsement. Under Coverage B, Philadelphia "will pay
those sums that the insured becomes legally obligated to pay as
damages because of 'personal and advertising injury' to which this
insurance applies." It "will have the right and duty to defend the
insured against any 'suit' seeking those damages. However,
Philadelphia will have no duty to defend the insured against any
'suit' seeking damages for 'personal and advertising injury' to
which this insurance does not, apply."

The policy defines "personal and advertising injury" as injury,
including consequential 'bodily injury,' arising out of one or more
of the following offenses: False arrest, detention or imprisonment;
Malicious prosecution; The wrongful eviction from, wrongful entry
into, or invasion of the right of private occupancy of a room,
dwelling or premises that a person occupies, committed by or on
behalf of its owner, landlord or lessor; Oral or written
publication, in any manner, of material that slanders or libels a
person or organization or disparages a person's or organization's
goods, products or services; Oral or written publication, in any
manner, of material that violates a person's right of privacy; The
use of another's advertising idea in your 'advertisement'; or
infringing upon another's copyright, trade dress or slogan in your
'advertisement'.

The General Liability Deluxe Endorsement Schools provision modifies
the definition of "personal and advertising injury" by, inter alia,
changing paragraph 14b. to read: "Malicious prosecution or abuse of
process."

III. Discussion

A.

Philadelphia argues that it need not defend or indemnify Kenney
because the Brogden Complaint does not state a claim within
Kenney's coverage. Kenney responds that even though the Brogden
Complaint did not contain an abuse of process claim, Philadelphia
had to defend Kenney because the Brogden Complaint alleged facts
consistent with an abuse of process claim.

The Brogden Complaint contains claims for statutory violations
related to landlord-tenant regulations and debt collection and a
UDTPA claim. These claims do not fall within the policy's
definition of "personal and advertising injury." Kenney, however,
argues that the Brogden Complaint alleges facts in the "general
background" section consistent with an abuse of process claim and
thereby falls within the General Liability Deluxe Endorsement
Schools provision, which adds abuse of process to the definition of
"personal and advertising injury." Philadelphia disagrees.

Judge Denver analyzes the injuries alleged in the Brogden Complaint
to see whether the Brogden Complaint plausibly includes an abuse of
process claim. He finds that the Brogden Complaint does not
explicitly contain an abuse of process claim. And no single claim
includes allegations that would state a plausible abuse of process
claim. Moreover, even the factual allegations Kenney cites from the
"general background" section of the Brogden Complaint do not
plausibly allege an abuse of process claim.

The eviction action against Brogden is a prior proceeding. And the
Court assumes without deciding that charging Brogden the eviction
fees could constitute a "wilful act" to gain advantage over Brogden
in the collateral matter of collecting the outstanding amount owed
on Brodgen's lease. However, nothing in the Brogden Complaint
suggests that Kenney instituted the eviction proceeding for an
ulterior, improper purpose. Therefore, even if synthesizing
disparate factual allegations to allege a covered tort can trigger
the duty to defend, the facts in the Brogden Complaint do not state
a claim for abuse of process. Thus, under the comparison test,
Philadelphia did not have a duty to defend Kenney in the Brogden
Action.

Judge Denver concludes that the duty to defend is broader than the
duty to indemnify. Accordingly, if the duty to defend "fails, so
too does: the duty to indemnify." Because Philadelphia did not have
a duty to defend Kenney in the Brogden Action, Philadelphia also
did not have a duty to indemnify Kenney.

B.

Kenney alleges UDTPA violations based on (1) Philadelphia's
"misrepresentation" of the policy definition of "personal and
advertising injury" by omitting reference to the endorsement adding
"abuse of process" as a covered enumerated offense; and (2)
Philadelphia's failure to timely respond to correspondence from
Kenney disputing the denial of coverage for the Brogden Action. In
support of its UDTPA claim, Kenney relies on the North Carolina
Unfair Claim Settlement Practices statute, N.C. Gen. Stat. Section
58-63-15(11), as defining unfair acts under the UDTPA. Philadelphia
responds that Kenney's UDTPA claims are not distinct from its
breach of contract claim related to the coverage dispute, that the
crux of Kenney's UDTPA claims is an honest disagreement about
coverage, and that Kenney does not state a UDTPA claim.

Judge Denver states that in order to establish a prima facie claim
for unfair trade practices, a plaintiff must show: (1) defendant
committed an unfair or deceptive act or practice, (2) the action in
question was in or affecting commerce, and (3) the act proximately
caused injury to the plaintiff. He holds that Kenney does not
allege any independent injury proximately caused by the alleged
section 56-63-15(11) violations.

Kenney alleges that Philadelphia violated N.C. Gen. Stat. Section
58-63-15(11)(a)-(d), (f), and (n) in handling Kenney's coverage
claim in the Brogden Action and thereby violated the UDTPA. Because
Philadelphia was not obligated to provide a defense under the
policy, Judge Denver holds that section 58-63-15(11)(f) does not
apply. As for Philadelphia's alleged violations of subsections (c)
and (d), he says Kenney does not allege any specific deficiencies
in Philadelphia's investigation process, and Philadelphia correctly
determined that Kenney's coverage did not apply to the claims in
the Brogden action. Thus, section 58-63-15(11)(c) and (d) do not
help Kenney.

As for Philadelphia's alleged violations of section
58-63-15(11)(a), (b), and (n), Judge Denver holds that Kenney does
not allege any injury that proximately resulted from any of these
alleged unfair acts. Kenney does not allege independent harm from
Philadelphia's alleged deficient communication. Kenney also alleges
that the costs of bringing the action are UDTPA damages. However,
because Philadelphia did not owe Kenney a duty to defend or to
indemnify, Kenney does not plausibly allege any injury that
proximately resulted from the unfair acts.

Kenney does not allege any independent injury proximately caused by
the alleged section 56-63-15(11) violations. Thus, Judge Denver
dismisses Kenney's UDTPA claim.

IV. Conclusion

In sum, Judge Denver grants the Defendant's motion for judgment on
the pleadings and dismisses the Plaintiffs' complaint. The
Defendant had no duty to defend or indemnify the Plaintiffs. The
Clerk will close the case.

A full-text copy of the Court's July 13, 2022 Order is available at
https://tinyurl.com/mt7e923b from Leagle.com.


PHILLIPS & COHEN: Scheduling Order Entered in Floyd Walker Suit
---------------------------------------------------------------
In the class action lawsuit captioned as FLOYD WALKER III,
individually and on behalf of all others similarly situated, v.
PHILLIPS & COHEN ASSOCIATES, LTD., a New Jersey corporation, Case
No. 1:22-cv-02468-CPO-EAP (D.N.J.), the Hon. Judge Elizabeth A.
Pascal entered a scheduling order as follows:

  -- Initial written discovery             July 29, 2022
     requests shall be served by:

  -- All discovery applications            September 30, 2022
     regarding initial written
     discovery shall be filed no
     later than:

  -- Any responses thereto shall           October 7, 2022
     be filed by:

  -- Pretrial factual discovery            January 31, 2023
     will expire on:

  -- Depositions of proposed expert        April 14, 2023
     witnesses shall be concluded by:

  -- Dispositive motions shall be          May 31, 2023
     filed with the Clerk of the Court
     no later than:

  -- Class certification motions           May 31, 2023
     shall be filed with the
     Clerk of the Court no later than:

Phillips & Cohen is a financial recovery agency specializing in
deceased account management, cease and desist solutions, and debt
management recovery.

A copy of the Court's order dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3ROTWJG at no extra charge.[CC]

PPG EMPLOYEE: 4th Cir. Vacates Vesting Claim Award in Bellon Suit
-----------------------------------------------------------------
In the case, CHARLES W. BELLON; ROBERT E. EAKIN; JUDY GAY BURKE;
LOUISE NICHOLS; WILTON G. WALLACE; BERNADOT F. VEILLON; BARBARA
BROWN; ROBERT E. WILLIAMS, on behalf of themselves and others
similarly situated, Plaintiffs-Appellants v. THE PPG EMPLOYEE LIFE
AND OTHER BENEFITS PLAN; PPG INDUSTRIES, INC.; THE PPG PLAN
ADMINISTRATOR, Defendants-Appellees, Case No. 21-1812 (4th Cir.),
the U.S. Court of Appeals for the Fourth Circuit affirms in part
and vacates in part the district court's order awarding summary
judgment to the PPG Defendants on all counts and dismissing the
Complaint with prejudice.

I. Introduction

The putative class action was initiated in the Northern District of
West Virginia in July 2018 by eight Plaintiffs -- each a retiree of
PPG, or the surviving spouse of such a retiree -- following the
termination of the plaintiffs' retiree life insurance coverage
under the PPG Employee Life and Other Benefits Plan (the "Benefits
Plan" or the "Plan"). The operative complaint of January 2020
spells out multiple claims against the Benefits Plan, PPG, and the
PPG Plan Administrator (collectively, the "PPG Defendants"). By a
Memorandum Opinion and Order of June 2021, the district court
awarded summary judgment to the PPG Defendants on all claims,
without ruling on the class certification issue.

On appeal, the Plaintiffs contest the summary judgment award as to
three counts of the Complaint, that is, Counts I, VII, and VIII. As
explained, the Fourth Circuit identifies a genuine dispute of
material fact with respect to the Count I claim that retiree life
insurance coverage was "vested" in eligible employees working for
PPG during the 15-year period from 1969 to 1984 (the "vesting
claim"). Accordingly, it vacates the judgment as to the vesting
claim and remands for consideration of whether the termination of
the Plaintiffs' retiree life insurance coverage contravened the
Employee Retirement Income Security Act of 1974 ("ERISA"), 29
U.S.C. Section 1001 et seq. It otherwise affirms.

II. Background

The Plaintiffs initiated this multimillion-dollar civil litigation
in 2018, representing a putative class of approximately 1,000
retired PPG employees and surviving spouses. By way thereof, they
primarily seek to "restore and recover contractually-vested retiree
life insurance coverage and associated benefits" from the PPG
Defendants. Named as plaintiffs are six retirees who worked in
PPG's commodity chemicals business between 1969 and 1984, and two
widows of such PPG retirees. Each Plaintiff was a participant in
the Benefits Plan or a retiree life insurance beneficiary.

The Benefits Plan historically offered two alternative retiree life
insurance options to the participants. First, a Plan participant
could elect a single lump-sum payment, which amounted to one-half
of the participant's annual salary before retirement, with a
maximum benefit of $50,000. Second, certain Plan participants could
alternatively elect a "surviving spouse benefit" consisting of half
of the lump-sum payment plus a monthly payment to the surviving
spouse for life, predicated on the amount of the deceased
participant's pension. Life insurance coverage was provided to all
of PPG's former salaried, nonunion employees who retired from PPG
with 15 or more years of service and received a PPG pension at the
time of retirement.

In January 2013, PPG merged its commodity chemicals business with
an entity called Georgia Gulf Corporation to form a new business
named Axiall. By the 2013 merger, PPG transferred to Axiall its
obligations under the Benefits Plan to provide retiree life
insurance coverage to eligible former employees of PPG's commodity
chemicals business. In December 2015, however, Axiall terminated
the retiree life insurance coverage of the plaintiffs and members
of the putative class.

Of importance, the theory of the Count I vesting claim is that,
when PPG transferred its obligations under the Benefits Plan to
Axiall in 2013, the Plaintiffs (or their spouses) possessed
"already earned and vested rights to retiree life insurance
coverage under the PPG Plan" that could not be lawfully terminated.
According to the Plaintiffs, because their retiree life insurance
coverage was vested under the Plan, the PPG Defendants are obliged
under ERISA to supply such coverage, regardless of whether Axiall
provides coverage under a new benefits plan. Pursuant to the
vesting claim, the Plaintiffs seek for themselves and the putative
class "to recover benefits due under the terms of the plan, to
enforce rights under the terms of the plan, or to clarify rights to
future benefits under the terms of the plan."

After discovery concluded in September 2020, the parties each moved
for summary judgment pursuant to Federal Rule of Civil Procedure
56. On the merits of the Count I vesting claim, the PPG Defendants
asserted that the claim fails as a matter of law because the
Benefits Plan documents do "not establish a vested benefit" for
retiree life insurance coverage. The Plaintiffs resisted the
summary judgment request made by the PPG Defendants as to the Count
I vesting claim, maintaining that "whether the Plaintiffs' benefits
were vested is, at minimum, a disputed question of material fact."

In December 2020, two months after the parties filed and briefed
their summary judgment motions, the PPG Defendants notified the
Plaintiffs' lawyers of newly discovered evidence that was
responsive to the Plaintiffs' timely discovery requests. The newly
discovered evidence consisted of approximately 24 pages of 1984
meeting minutes and related official documents of the PPG Employee
Benefits Committee (the "EBC"), the PPG committee responsible for
establishing, maintaining, and amending the Benefits Plan (the
"undisclosed EBC minutes").

On Dec. 30, 2020, the Plaintiffs sought relief from the district
court pursuant to Federal Rule of Civil Procedure 56(d) -- in light
of the undisclosed EBC minutes -- requesting the court to reject
the PPG Defendants' summary judgment motion and authorize time for
further discovery. The PPG Defendants opposed the Rule 56(d)
motion, underscoring that the Plaintiffs knew that the Benefits
Plan "prior to 1984 did not include a reservation of rights
clause."

By its Opinion of June 28, 2021, the district court disposed of the
two motions that are pertinent to our analysis of the Count I
vesting claim. First, the court denied the Plaintiffs' Rule 56(d)
motion. And second, it awarded summary judgment to the PPG
Defendants -- at their request -- on the vesting claim.

Ultimately, the district court awarded summary judgment to the PPG
Defendants on all counts and dismissed the Complaint with
prejudice. The Plaintiffs timely noted this appeal, and the Fourth
Circuit possesses jurisdiction pursuant to 28 U.S.C. Section 1291.

III. Discussion

On appeal, the Plaintiffs contend that -- based on the existing
record, including the undisclosed EBC minutes evidencing that
retiree life insurance coverage constituted a vested benefit under
the Benefits Plan between 1969 and 1984 -- the district court erred
in awarding summary judgment to the PPG Defendants on the Count I
vesting claim. The court ruled that the Plaintiffs' retiree life
insurance coverage could be terminated consistent with ERISA
because the Plan included a reservation of rights clause as of
1984. That is, the court apparently believed that the adoption of
the reservation of rights clause in 1984 allowed PPG to terminate
retiree life insurance coverage for all present and future Plan
participants, even if such coverage had previously been vested for
participants like the Plaintiffs (and their spouses) who worked
between 1969 and 1984.

The Fourth Circuit holds that the issue of whether the Plaintiffs'
retiree life insurance coverage ever constituted a vested benefit
is wholly material to the proper resolution of the Count I vesting
claim. However, the Plaintiffs assert that vesting first occurred
in 1969, prior to ERISA's enactment in 1974. Thus, it is doubtful
that they should be held to any requirement for "clear and express
language" in ERISA plan documents. In any event, the Plaintiffs do
not ask the courts to "lightly infer" vesting.

There being such a factual dispute, the district court erred in
awarding summary judgment to the PPG Defendants on the Count I
vesting claim. Accordingly, although it otherwise affirms, the
Fourth Circuit vacates the court's judgment with respect to the
vesting claim and remands for further consideration thereof, which
may include related discovery, spoliation issues, and class
certification.

IV. Conclusion

The Fourth Circuit agrees with the Plaintiffs that if their retiree
life insurance coverage were ever a vested benefit, PPG could not
rely on the later-added reservation of rights clause to terminate
that coverage. Moreover, it recognizes that the existing record
reflects a genuine dispute of material fact as to the vesting
issue. The Fourth Circuit therefore vacates the judgment with
respect to the Count I vesting claim and remands for further
proceedings thereon.

A full-text copy of the Court's July 15, 2022 Opinion is available
at https://tinyurl.com/mts3knb8 from Leagle.com.

ARGUED: Maureen Davidson-Welling -- mdw@stembercohn.com -- STEMBER
COHN & DAVIDSON-WELLING, LLC, in Pittsburgh, Pennsylvania, for the
Appellants.

Joseph J. Torres -- jtorres@winston.com -- JENNER & BLOCK LLP, in
Chicago, Illinois, for the Appellees.

ON BRIEF: John Stember -- jstember@stembercohn.com -- STEMBER COHN
& DAVIDSON-WELLING, LLC, Pittsburgh, Pennsylvania; James T. Carney,
in Pittsburgh, Pennsylvania, for the Appellants.

Ashley M. Schumacher -- aschumacher@jenner.com -- Clifford W.
Berlow -- cberlow@jenner.com -- Alexis E. Bates --
abates@jenner.com -- Hope H. Tone-O'Keefe -- htone@jenner.com --
JENNER & BLOCK LLP, in Chicago, Illinois, for the Appellees.


PROGRESSIVE UNIVERSAL: Scheduling Order Entered in Kroeger Suit
---------------------------------------------------------------
In the class action lawsuit captioned as Amy Kroeger, Individually
And On Behalf Of All Others Similarly Situated, v. Progressive
Universal Insurance Company, An Ohio Corporation, Case No.
4:22-cv-00104-SMR-HCA (S.D. Iowa), the Hon. Judge Helen C. Adams
entered a scheduling and trial setting order as follows:

  1. A Jury Trial shall begin on February 12, 2024 at 9:00 AM
     before United States District Judge Stephanie Rose at the
     United States Courthouse, Des Moines, Iowa. Trial is
     estimated to take 5 days.

  2. A Final Pretrial Conference shall be held on January 10,
     2024 at 10:00 AM at the United States Courthouse, Des
     Moines, Iowa, before Chief Magistrate Judge Helen C. Adams.

  3. Initial Disclosures shall be made by July 8, 2022.

  4. Motions to add parties shall be filed by Aug. 23, 2022.

  5. Motions for leave to amend pleadings shall be filed by
     Aug. 23, 2022.

  6. The Deadline for completion of fact discovery Feb. 20,
     2023.

  7. The Plaintiff shall designate expert witnesses and disclose
     their written reports by March 9, 2023.

  8. The Plaintiff's motion for class certification due by
     April 10, 2023.

  9. The Defendant shall designate expert witnesses and disclose
     their written reports by April 24, 2023.

10. The Defendant's opposition to motion for class
     certification due by May 24, 2023.

11. The Plaintiff's reply in support of class certification
     due by June 15, 2023.

12. Deadline for completion of expert discovery June 1, 2023.

13. Dispositive motions shall be filed by Sept. 8, 2023.

Progressive Universal operates as an insurance firm.

A copy of the Court's order dated July 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3uUGcU0 at no extra charge.[CC]

REBELZ CLUB: Court Conditionally Certifies Class in Harris Suit
---------------------------------------------------------------
In the case, BRIANA RAE HARRIS, on behalf of herself and all
persons similarly situated, Plaintiff v. REBELZ CLUB, LLC d/b/a
Rebelz Gentlemen's Club, HEATHER VARANDO, and PABLO VARANDO,
Defendants, Case No. 4:22-CV-00111 (M.D. Pa.), Judge Matthew W.
Brann of the U.S. District Court for the Middle District of
Pennsylvania grants Harris' motion for conditional certification.

I. Overview

Former exotic dancer Harris, acting on behalf of all dancers at the
Rebelz Gentlemen's Club in Moshannon, Pennsylvania from the past
three years, filed the putative class action against Rebelz and its
owners, alleging that the club unlawfully withheld dancer pay and
tips. Now, Harris moves for conditional certification of her
proposed class. Buttressed by declarations from other Rebelz
dancers, Harris argues that the alleged unlawful withholdings were
part of a common payment scheme imposed on all Rebelz dancers.
Because these declarations constitute sufficient evidence to
satisfy the modest factual showing required, Harris' motion for
conditional certification is granted.

II. Background

On Jan. 20, 2022, Harris initiated the putative class action
lawsuit against Rebelz and its owners, Pablo and Heather Varando,
on behalf of all Rebelz dancers from the past three years. Harris
alleges violations of the Fair Labor Standards Act ("FLSA") and the
Pennsylvania Wage Payment and Collection Law ("WPCL") as well as a
common law claim for conversion based on the Defendants' mandatory
deductions of dancer wages and tips.

The following month, Harris filed a motion for conditional class
certification. In support, Harris attached three declarations: The
first, by her; the second and third, by two other Rebelz dancers,
Caera Zimmerman and Vanessa Baker. In their declarations, Harris,
Zimmerman, and Baker detail the work requirements and payment
scheme for exotic dancers at Rebelz. Specifically, Zimmerman
explains that she was hired by Mrs. Varando to work two days per
week as dancers, with each shift lasting at least 10 hours,
totaling approximately 20 hours a week. Additionally, all three
note that Rebelz did not permit dancers to work at other clubs
while employed at Rebelz.

According to Harris, Zimmerman, and Baker, dancers at Rebelz
receive two forms of payment. First, dancers collect a portion of
the "dance fees" -- that is, the amount Rebelz customers pay per
lap dance.8 The dance fees are set by Rebelz without any input or
negotiation by the dancers. Per Rebelz policy, dancers receive 50%
of dance fees; Rebelz retains the remaining 50%.10 Second, dancers
received customer tips, which were made at the customers'
discretion (i.e., the additional gratuity was optional; Rebelz did
not require or automatically apply customer tips). Harris,
Zimmerman, and Baker explain that "Rebelz required that after each
dance, Dancers place any cash tips in a dedicated envelope for each
Dancer, and provide it to the club's management in the office."

Lastly, Harris, Zimmerman, and Baker detail a set of "mandatory
fees" that were "automatically deducted from the Dancers' tips and
share of Dance Fees each working night." Rebelz imposed these fees
without input from the dancers; as such, any change in the amount
deducted on a given night was determined exclusively by Rebelz.

Responding to the declarations by Harris, Zimmerman, and Baker, the
Defendants filed a declaration by Mrs. Varando. In her declaration,
Mrs. Varando challenges certain representations made by Harris,
Zimmerman, and Baker, asserting that "different dancers pay
different expenses, and the manner by which expenses are charged
varies."

For example, Mrs. Varando asserts that Rebelz has a different
compensation structure for dancers who perform private dances for
more than eighty minutes in a given shift, and that some dancers
"choose to purchase drinks throughout their shifts on a credit
system," with the costs of those drinks "deducted from their
compensation at the end of the night." Further, Mrs. Varando
disputes the existence of fees for advertising expenses, dancing
less than 80 paid minutes a night, and earning more than $300 a
night. According to Mrs. Varando, "those claims are flatly wrong."
Notably, although Mrs. Varando denies Harris' allegation that
dancers receive less than 50% of dance fees (due to fees Rebelz
imposed for certain house expenses), she acknowledges that Rebelz
charges at least certain dancers "house fees," "expenses," and
"other fees."

With the filing of Harris's reply brief in support of her motion
for conditional certification, the motion has been fully briefed.
Accordingly, the motion is ripe for disposition.

III. Discussion

A. Conditional Certification

In her Complaint, Harris alleges that she and the other Rebelz
dancers were subject to a common illegal pay practice: the
Defendants "illegally diverted the Dancers' tips by converting the
tips to the Defendants' benefit." According to Harris, the
declarations submitted by Zimmerman and Baker (coupled with
Harris's own declaration) "confirm the allegations of the Complaint
that the Defendants' scheme to illegally divert a portion of their
tips in violation of the FLSA was a policy universally applied to
all Dancers." And by presenting "threshold evidence" that the
putative class members were "uniformly subject to a policy that
violates the FLSA," Harris argues, she has established that "the
putative class members are 'similarly situated,'" and therefore
conditional certification is appropriate.

Judge Brann agrees. He says, the Defendants present several
arguments in response, none of which have merit. At this early
stage, the declarations submitted by Harris, Zimmerman, and Baker
satisfy the "modest factual showing necessary to warrant
conditionally certifying their action" -- that is, they show that
all dancers who worked for Rebelz within the putative class period
were subject to the same compensation structure, whereby Rebelz
withheld portions of the dancers' tips and dance fees to finance
other house expenses. Accordingly, Harris' motion for conditional
certification is granted.

B. Notice

Ms. Harris asks the Court to authorize notice through "first-class
mail, text message, and email," and to provide a "sixty (60) day
notice period, with a thirty (30) day reminder notice to those who
have not responded." The Court considers this notice request
reasonable and consistent with prior rulings from district courts
in this Circuit.

In response, the Defendants argue only that the proposed notice
"should include a provision notifying the opt-ins that they may be
liable for the costs of suit if the Defendants prevail." According
to them, this provision is "reasonable" and "has been adopted
before," citing a ruling from Magistrate Judge Arnold C. Rapoport
of the United States District Court for the Eastern District of
Pennsylvania in Wright v. Lehigh Valley Hospital & Health Network.

Magistrate Judge Rapoport is correct that "courts have awarded
costs to prevailing defendants in FLSA cases," and therefore "an
award of costs to a prevailing defendant in an FLSA case is clearly
possible and is not merely theoretical." That said, the purpose and
benefit of such a notice -- i.e., "allowing putative plaintiffs to
'make informed decision about whether to participate'" -- is
substantially outweighed by the risk of intimidating potential
class members and chilling participation in the collective action.
Accordingly, Judge Brann approves Harris' proposed notice request
and denies the Defendants' counter-proposal to include a provision
notifying opt-ins that they may be liable for costs.

IV. Conclusion

The factual showing required for conditional certification of a
proposed class is indisputably modest. Because the declarations
Harris presents satisfy this modest requirement, her motion for
conditional certification is granted. Additionally, Judge brann
authorizes the use of Harris' proposed notice as written.

An appropriate Order follows.

A full-text copy of the Court's July 15, 2022 Memorandum Opinion is
available at https://tinyurl.com/5e8ze3b8 from Leagle.com.


REBELZ CLUB: Pennsylvania Court Denies Bid to Dismiss Harris Suit
-----------------------------------------------------------------
In the case, BRIANA RAE HARRIS, on behalf of herself and all
persons similarly situated, Plaintiff v. REBELZ CLUB, LLC d/b/a
Rebelz Gentlemen's Club, HEATHER VARANDO, and PABLO VARANDO,
Defendants, Case No. 4:22-CV-00111 (M.D. Pa.), Judge Matthew W.
Brann of the U.S. District Court for the Middle District of
Pennsylvania denies the Defendants' motion to dismiss the
Complaint.

I. Overview

A former exotic dancer at the Rebelz Gentlemen's Club in Moshannon,
Pennsylvania, Plaintiff Harris brought the putative class action
lawsuit against Rebelz and its owners for allegedly withholding
dancer pay in violation of federal and state law. The Defendants
now move to dismiss the Complaint, challenging the classification
of, and the dancer's entitlement to, the disputed compensation, as
well as the claims of individual liability against the Rebelz
owners. But the Defendants misconstrue both Harris' claims and the
relevant legal authority. Because the Complaint states valid causes
of action under the Fair Labor Standards Act and the Pennsylvania
Wage Payment and Collection Law, as well as for common law
conversion, the Defendants' motion to dismiss is denied.

II. Background

In March 2021, Harris began working as an exotic dancer at the
Rebelz Gentlemen's Club located in Moshannon, Pennsylvania. At the
time, Rebelz was owned and operated by a husband-and-wife duo,
Pablo and Heather Varando. Mr. and Mrs. Varando oversaw all aspects
of the Rebelz operation: they hired, fired, supervised, directed
the work of, and controlled payroll decisions for the exotic
dancers.3 In particular, Mrs. Varando -- the club's "House Mom" --
exercised control over the dancers' work schedules, setting the
shift requirements and permitting days off only with her express
permission.

At any given time, Rebelz employed approximately 14 dancers, who
worked two days per week (Fridays and Saturdays) from 8:30 p.m.
until at least 6:00 a.m. The dancers received two forms of
compensation: a portion of the customer "dance fees" (i.e., the
amount customers paid per lap dance) as well as customer tips.6 The
Defendants unilaterally set the dance fees -- $20 for a four-minute
dance, $80 for a 16-minute dance -- and the portion of the dance
fees attributed to dancers -- 50%. Further, the Defendants deducted
from the dancers' tips and dance fees payments for certain house
expenses, including "House Fees" (a 15% charge from tips for the
privilege of working on a given night), "Expenses" (to cover
advertising costs and other club expenses), "Tip-Outs" (to
subsidize the cost for other employees, such as security staff and
DJs), and "Late Fees." They also imposed dancer-specific deductions
for either failing to perform 80 minutes of customer dances or
making more than $300 a night.

Harris stopped working at Rebelz in September 2021. Around four
months later, in January 2022, she initiated the putative class
action on behalf of all current and former dancers at Rebelz during
the prior three years. In the three-count lawsuit against Rebelz
and Mr. and Mrs. Varando, Harris alleged violations of the Fair
Labor Standards Act ("FLSA") and the Pennsylvania Wage Payment and
Collection Law ("WPCL") as well as a common law claim for
conversion based on the Defendants' mandatory deductions of dancer
wages and tips.

The Defendants moved to dismiss the Complaint on Feb. 15, 2022.
That motion has been fully briefed and is now ripe for
disposition.

III. Analysis

A. Count I - Violation of the FLSA

The FLSA provides that "an employer may not keep tips received by
its employees for any purposes, including allowing managers or
supervisors to keep any portion of employees' tips, regardless of
whether or not the employer takes a tip credit." Accordingly, in
Count I of her Complaint, Harris argues that the Defendants
violated the FLSA by "knowingly deducting amounts from her and the
other Rebelz dancers' tips" for the purpose of "subsidizing the
labor costs for other employees (e.g., security staff and DJs)."

In their motion to dismiss, the Defendants attack Harris's FLSA
claim on two grounds: (1) the dance fees do not qualify as "tips,"
and therefore any alleged withholding of dance fees does not
violate the FLSA; and (2) Harris's allegations regarding Mrs.
Varando lack the specificity required to sustain a claim for
individual liability.

Neither argument justifies dismissal, Judge Brann opines. First, he
finds that the dance fees are relevant only to Count II, which
seeks compensation for lost "wages." Accordingly, the Defendants'
argument that dance fees do not qualify as "tips" under the FLSA
has no bearing on the viability of Count I. Next, Judge Brann finds
that the allegations "provide enough information" about the scope
of Mrs. Varando's workplace authority to allow the Court to
reasonably infer her liability for the misconduct alleged. As such,
the Defendants' motion to dismiss Harris's FMLA claim as to Mrs.
Varando is denied.

B. Count II - Violation of the WPCL

In Count II, Harris alleges that the Defendants violated the WPCL
by deducting and converting for their own benefit a portion of the
dancers' wages, which Harris defines as customer tips as well as
the 50% of dance fees allocated to dancers. The Defendants argue
that the WPCL claim should be dismissed for three reasons: (1)
Harris does not allege that she had a "contractual entitlement" to
compensation from Rebelz; (2) dance fees do not qualify as "wages"
under the WPCL; and (3) the Complaint fails to establish individual
liability for Mrs. Varando.

Again, Judge Brann finds the Defendants wrong on all fronts. He
opines that (i) Harris alleges the existence of an implied
contract: the dancers performed at Rebelz with the Defendants'
knowledge and consent -- indeed, at the Defendants' direction and
for their financial benefit; (ii) anemployee's prior consent to the
disputed deductions does not foreclose an otherwise viable WPCL
claim; (iii) the 50% of dance fees allotted to the dancers
(including the amount withheld for the various deductions) qualify
as "wages" under the WPCL: Rebelz offered this payment to dancers
in exchange for their work at and for Rebelz; and (iv) the
allegations state a claim for Mrs. Varando's individual liability
under the WPCL.

C. Count III - Conversion

As with Counts I and II, the Defendants move to dismiss Count III
(conversion) against Mrs. Varando. According to them, "there is
simply no viable allegation suggesting that Mrs. Varando actively
participated in the commission of any torts."

But, once again, the Defendants have it wrong, Judge Brann opines.
He says, the tortious conduct at issue is the Defendants' alleged
conversion of the dancer's tips without consent or legal
justification. Harris alleges that Mrs. Varando participated in
this conduct by "exercising discretionary control over payroll
decisions" with respect to Harris and the other dancers, and
penalizing dancers who complained "they had been shorted tips and
suffered from illegal deductions from their tips." Taken together,
these allegations state a conversion claim against Mrs. Varando
under the participation theory.

IV. Conclusion

Judge Brann concludes that in their motion to dismiss, the
Defendants seem wholly confused -- about the nature of Harris'
claims and the legal authorities that govern them. But as the Court
sees it, the legal issues are not particularly complicated. Harris'
allegations that the Defendants claimed a portion of the dancers'
tips support claims under the FLSA (Count I) and common law (Count
III). And these allegations, coupled with the pleadings about dance
fee deductions for house expenses, state a claim for relief under
the WPCL (Count II). Accordingly, the Defendants' motion to dismiss
is denied.

An appropriate Order follows.

A full-text copy of the Court's July 15, 2022 Memorandum Opinion is
available at https://tinyurl.com/5d8chd7t from Leagle.com.


RED WING: Fla. Dist. App. Affirms Dismissal of Southam FACTA Suit
-----------------------------------------------------------------
In the case, JAMES LUCAS SOUTHAM, individually, and on behalf of
other similarly situated individuals, Appellant v. RED WING SHOE
COMPANY, INC., a Minnesota corporation, Appellee, Case No.
4D21-3338 (Fla. Dist. App.), the District Court of Appeal of
Florida, Fourth District, affirms the trial court's order granting
the Appellee's motion to dismiss.

I. Introduction

Appellant Southam filed a class action suit alleging that Appellee
Red Wing, failed to comply with the requirements of the Fair and
Accurate Credit Transactions Act ("FACTA"). The Appellant alleged
that a receipt he received from Red Wing contained ten digits of
his credit card number. He does not allege that his credit card was
used, lost, or stolen in any way. Nor was there evidence of any
danger of appellant's credit card being used. The Appellant
suffered no "economic" injury, nor any "distinct or palpable"
injury. Thus, in the case, the District Court of Appeal finds "no
concrete harm, no standing." Therefore, it finds the trial court
did not err in granting the Appellee's motion to dismiss since the
Appellant lacked standing to proceed. The District Court of Appeal
affirms the other issue raised without further comment.

II. Background

Following a purchase at a Red Wing shoe store, the Appellant filed
a class action suit in federal court alleging that the receipt
provided by Red Wing contained 10 digits of his credit card number
in violation of FACTA. The suit did not allege or seek to recover
any actual damages. The class members sought only statutory damages
under section 1681n.

Red Wing filed a motion to stay the federal court action pending
resolution of a matter in front of the Eleventh Circuit. The
federal district court granted Red Wing's motion to stay, "pending
final resolution of the Muransky v. Godiva Chocolatier, Inc. (No.
16-16486) appeal in the Eleventh Circuit." During the stay,
appellant filed the action in state court, which Red Wing removed
to federal court on the basis of federal question jurisdiction.

The Eleventh Circuit held in Muransky, on facts similar to the
instant case, that "a party does not have standing to sue when it
pleads only the bare violation of a statute." Thus, the parties
agreed to dismiss the federal action and remand the later-filed
action to state court. The Appellant proceeded in state court on
the theory that state standing was plenary and therefore less
restrictive than federal standing. His argument for standing is
based solely on the alleged "legal injury" derived from the
statutory damages of 15 U.S.C. Section 1681n(a)(1)(A).

Red Wing filed a motion to dismiss, alleging that the Appellant did
not have standing to bring the action because he had not suffered a
concrete or actual injury. It argued that "an alleged noncompliant
receipt, without more, does not confer standing." Because he did
not allege that he had suffered any actual damages, and did not
allege that his receipt had been stolen, that another copy existed,
or that anyone else had seen the receipt, Red Wing believed it was
entitled to dismissal.

The trial court granted Red Wing's motion to dismiss, finding that
Florida requires a concrete injury to have standing, which the
Appellant did not argue he sustained. The trial court held that
alleging a mere statutory violation does not convey standing per
se. Rather, the "Plaintiff must have a concrete, non-hypothetical
injury. Merely obtaining a receipt in alleged violation of FACTA
does not satisfy this requirement."

The appeal follows.

II. Analysis

The District Court of Appeal finds Muransky persuasive, which
aligns with its holding that the Appellant has not shown a concrete
injury sufficient for standing. Muranksy relied in large part on
the Supreme Court's holding in Spokeo, Inc. v. Robins, which is
also similar to the instant case. The plaintiffs sued Spokeo for
disseminating incorrect personal information on its search engine
under the Fair Credit Reporting Act ("FCRA"). The FCRA awarded
damages similar to FACTA, either actual damages or statutory
damages ranging from $100 to $1,000 per violation. The Supreme
Court in Spokeo held that "a bare procedural violation, divorced
from any concrete harm" did not confer standing.

The Appellant did not allege that he suffered a concrete,
individualized harm as a result of the credit card numbers being
printed on his receipt. Thus, he does not have an injury-in-fact
that is concrete and particularized to meet standing requirements.
The risk of future harm to the Appellant is also unavailing, since
he kept the credit card receipt and there is no danger that the
credit card number could result in any concrete injury to him.

In summary, the District Court of Appeal finds the Appellant did
not demonstrate an injury in fact that was "concrete," "distinct
and palpable," and "actual or imminent." Failing this test, the
trial court correctly granted Red Wing's motion to dismiss. As
such, the District Court of Appeal affirms.

III. Conclusion

For these reasons, the District Court of Appeal affirms.

A full-text copy of the Court's July 13, 2022 Order is available at
https://tinyurl.com/2th39n74 from Leagle.com.

Keith J. Keogh -- keith@keoghlaw.com -- of Keogh Law, LTD, in
Chicago, Illinois, Scott D. Owens -- scott@scottdowens.com -- of
Scott D. Owens, P.A., Hollywood, and Bret L. Lusskin --
blusskin@lusskinlaw.com -- of Bret L. Lusskin, P.A., Golden Beach,
for the Appellant.

Jordan S. Kosches -- jordan.kosches@gray-robinson.com -- of
GrayRobinson, P.A., Miami, and David S. Almeida --
dalmeida@beneschlaw.com -- and Mark S. Eisen of Benesch,
Friedlander Coplan & Aronoff, LLP, in Chicago, Illinois, for the
Appellee.


REHAB SYNERGIES: Appeals Final Judgment in Loy Labor Class Action
-----------------------------------------------------------------
Rehab Synergies, L.L.C. is appealing a final judgment entered in
the lawsuit styled Valerie Loy, on behalf of herself and all others
similarly situated v. Rehab Synergies, LLC, Case No. 7:18-cv-000,
in the United States District Court for the Southern District of
Texas, McAllen.

The lawsuit was filed by the Plaintiff on January 5, 2018 against
the Defendants for failure to pay overtime pay for all hours worked
40 in a workweek.

The Plaintiff was employed by the Defendant from March 2014 to
August 2016 at its facility in McAllen, Texas. She filed suit in
this Court alleging that she, and other similarly situated
therapists, worked "off the clock or otherwise underreported their
time" while employed by Defendant. She alleges that this
off-the-clock work occurred as a result of the "onerous
productivity requirements" set by Defendant. She also asserts that
Defendant knew off-the-clock work was occurring and "expressly
encouraged it." As a result of this practice, Plaintiff alleges she
and other similarly situated employees have been "denied overtime
payments that they are due" in violation of the Fair Labor
Standards Act.

On April 3, 2019, the Court granted Plaintiff's motion to
conditionally certify a collective class of all therapists in five
different jobs who worked for Defendant at any time after March 8,
2015.

The Defendants filed a motion for decertification, as well as a
motion for partial summary judgment and to dismiss certain
plaintiffs.

On September 2, 2021, the Court denied the Defendant's motion to
decertify. The Court also denied in part and granted in part
Defendant's motion for partial summary judgment. Summary judgment
was denied as to the claim for willful violation of the FLSA.
Summary judgment was granted in favor of Defendants as to these
opt-in Plaintiffs and their claims and causes of action were
dismissed with prejudice:

  1. Wendy Adamo
  2. Rhianna Acheson
  3. Colette Boyd
  4. Ballah Burch
  5. Michelle Cole
  6. Lana Crenshaw
  7. Chavita Green
  8. Deunta Jenkins
  9. Paul Mendiola
10. Jennifer Mensah
11. Marsha Moneyheffer
12. Tracy Nolan
13. Vannoy Lin Reynolds
14. Jorgina Tamplen
15. Lula Gordon
16. Taryn Trason

Following a trial by jury, verdict was entered in favor of
Plaintiffs on March 8, 2022.

On June 1, 2022, the Court rendered final judgment in favor of
Plaintiffs. The Court ruled that each Plaintiff will recover from
the Defendant the amount asked along with attorney's fees with an
interest at the rate of 2.02% per annum from the date of the
judgment until paid in full.

The appellate case is captioned as Loy v. Rehab Synergies, Case No.
22-40411, in the United States Court of Appeals for the Fifth
Circuit, filed on July 5, 2022.[BN]

Defendant-Appellant Rehab Synergies, L.L.C. is represented by:

          Erika Leonard, Esq.
          OLGETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
          301 Congress Avenue
          Austin, TX 78701
          Telephone: (512) 640-7090

Plaintiffs-Appellees Valerie Loy, on behalf of herself and all
others similarly situated, et al., are represented by:

          Roberto Luis Ramirez, Esq.
          RAMIREZ LAW FIRM, P.L.L.C.
          820 E. Hackberry Avenue
          McAllen, TX 78501-0000
          Telephone: (956) 668-8100

               - and -

          Charles S. Siegel, Esq.
          Caitlyn E. Silhan, Esq.
          WATERS & KRAUS, L.L.P.
          3141 Hood Street
          Dallas, TX 75219
          Telephone: (214) 357-6244

SAFELITE FULFILLMENT: Order on Class Cert-Related Dates Entered
---------------------------------------------------------------
In the class action lawsuit captioned as MARIE DEMARTINI,
individually and on behalf of all others similarly situated, v.
SAFELITE FULFILLMENT, INC., an Ohio Corporation, and DOES 1-10,
inclusive, Case No. (N.D. Cal.), the Hon. Judge Maxine N. Chesney
entered an order regarding certification-related dates:

  1. The September 9, 2022 deadline         Jan. 27, 2023
     for Plaintiffs to file their
     Motion for Class Certification
     is extended to:

  2. The October 28, 2022 deadline          March 24, 2023
     for Defendant to file its
     Opposition to the Motion for
     Class Certification is
     extended to:

  3. The December 2, 2022 deadline          April 21, 2023
     for Plaintiffs to file their
     Reply in support of their
     Motion for Class Certification
     is extended to:

  4. The January 2, 2023 at 9:00 a.m.       May 12, 2023
     hearing date for Plaintiffs'
     Motion for Class Certification
     is vacated and rescheduled for:

Safelite Fulfillment was founded in 2004. The company's line of
business includes the retail sale of paint, glass, and wallpaper.

A copy of the Court's order dated July 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3ogyIXz at no extra charge.[CC]

The Attorneys for the Plaintiff Marie Demartini, are:

          James R. Hawkins, Esq.
          Christina M. Lucio, Esq.
          JAMES HAWKINS APLC
          9880 Research Drive, Suite 200
          Irvine, CA 92618
          Telephone: (949) 387-7200
          Facsimile: (949) 387-6676
          E-Mail: christina@ jameshawkinsaplc.com
                  james@jameshawkinsaplc.com

The Attorneys for the Plaintiff Willie Austin Jr., are:

          Norman B. Blumenthal, Esq.
          Kyle R. Nordrehaug, Esq.
          Aparajit Bhowmik, Esq.
          Piya Mukherjee, Esq.
          Victoria Rivaplacio, Esq.
          Charlotte E. James, Esq.
          BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
          2255 Calle Clara
          La Jolla, CA 92037
          E-mail: norm@bamlawca.com
                  kyle@bamlawca.com
                  aj@bamlawca.com
                  aj@bamlawca.com
                  piya@bamlawca.com
                  victoria@bamlawca.com
                  charlotte@bamlawca.com

The Defendant is represented by:

          M. Leah Cameron, Esq.
          CDF LABOR LAW LLP
          601 Montgomery Street, Suite 350
          San Francisco, CA 94111
          Telephone: (415) 981-3233
          Facsimile: (415) 981-3246
          E-Mail: lcameron@cdflaborlaw.com

               - and -

          Daneil J. Clark, Esq.
          Adam J. Rocco, Esq.
          Michael J. Shoenfelt, Esq.
          Amanda M. Miggo, Esq.
          VORYS, SATER, SEYMOUR AND PEASE LLP
          52 East Gay Street, P.O. Box 1008
          Columbus, Ohio 43216-1008
          Telephone: (614) 464-5497
          Facsimile: (614) 719-4760
          E-mail: DJClark@vorys.com
                  ajrocco@vorys.com
                  MJShoenfelt@vorys.com
                  ammiggo@vorys.com

SAN FRANCISCO HEALTH: Court Narrows Labor Claims in Johnson Suit
----------------------------------------------------------------
In the case, JAMIE JOHNSON, Plaintiff, v. SAN FRANCISCO HEALTH CARE
AND REHAB INC., Defendant, Case No. 22-cv-01982-JSC (N.D. Cal.),
Judge Jacqueline Scott Corley of the U.S. District Court for the
Northern District of California:

    (i) denies the Plaintiff's motion to remand; and

   (ii) grants in part and denies in part the Defendant's motion
        to dismiss.

I. Background

Ms. Johnson sued her former employer, the Defendant, in San
Francisco Superior Court. The Defendant removed to federal court.

The Plaintiff worked for the Defendant for six months in 2021.
According to the complaint, the Defendant frequently failed to pay
minimum wages, pay overtime wages, provide meal breaks and rest
periods, timely pay final wages, and provide accurate itemized wage
statements. The Defendant and the Service Employees International
Union ("SEIU") have a collective bargaining agreement (the "SEIU
CBA"). The Plaintiff filed the putative class action, alleging
California Labor Code violations and a violation of California's
unfair competition law.

The Plaintiff sued the Defendant in San Francisco Superior Court.
The Defendant filed a notice of removal ("NOR") and removed the
case to federal court. The Plaintiff then amended the complaint in
the state court. The Defendant filed an amended NOR in the Court.
The Plaintiff filed a motion to remand the case back to the state
court. The Defendant opposed remand and filed a motion to dismiss.

II. Discussion

A. Motion to Remand

"Only state-court actions that originally could have been filed in
federal court may be removed to federal court by the defendant." A
defendant seeking removal to federal court "bears the burden of
establishing that removal is proper," and the "removal statute is
strictly construed against removal jurisdiction." "Federal
jurisdiction must be rejected if there is any doubt as to the right
of removal in the first instance."

The Defendant argues that the Labor Management Relations Act
("LMRA") provides federal jurisdiction in this case because the
LMRA preempts Plaintiff's state law claims. LMRA Section 301
provides federal jurisdiction over "suits for violation of
contracts between an employee and a labor organization." When the
LMRA applies, it completely preempts state law claims.

The LMRA preemption inquiry has two parts. First, a court
determines "whether the asserted cause of action involves a right
conferred upon an employee by virtue of state law, not by a CBA. If
the right exists solely as a result of the CBA, then the claim is
preempted." Second, if the right underlying the state claim exists
independently of the CBA, the claim is preempted if the state law
right is "substantially dependent on analysis of a collective
bargaining agreement."

The Defendant argues the LMRA preempts the Plaintiff's state law
claims because the SEIU CBA preempts his various claims for relief.
The Plaintiff objects that the Defendant may only establish federal
jurisdiction based on the claims specifically referenced in
Defendant's original NOR: (1) the overtime claim; (2) the meal
break claims; and (3) the rest break claims.

While the amended NOR and subsequent briefing better described the
Defendant's LMRA preemption theory, the Defendant did not add any
new "bases" for federal jurisdiction. Because the Defendant removed
te action on the basis of federal question jurisdiction under 28
U.S.C. Section 1331 due to LMRA Section 301 preemption, Judge
Corley considers whether the LMRA Section 301 preempts any of the
claims in the Plaintiff's initial complaint. Specifically, the
Defendant argues that LMRA Section 301 preempts (1) the Plaintiff's
claim for overtime under Labor Code Section 510; (2) the
Plaintiff's claims for meal and rest breaks; (3) the Plaintiff's
claim for minimum wage payments; and (4) the Plaintiff's claims for
timely final payments, itemized wage statements, and timely
bimonthly pay.

a. California Labor Code Section 510

The Defendant argues that the Plaintiff's claim for unpaid overtime
wages arises from the SEIU CBA because California Labor Code
Section 514 bars the Plaintiff's overtime claim under Labor Code
Section 510. Alternatively, it contends that the Plaintiff's state
law claim requires interpretation of the SEIU CBA. The Defendant
has not met its burden on either point.

Judge Corley holds that (i) if the Plaintiff is subject to a
qualifying CBA as defined in Section 514, the overtime requirements
in Section 510(a) do not apply even if he was not working an
alternative workweek schedule; and (ii) the Plaintiff's "right to
overtime" does not exist "solely as a result of the CBA" and the
claim is not preempted at step one of the LMRA preemption test.

Judge Corley also finds that it is not enough for the Defendant to
provide a laundry list of provisions that they allege the Court
must interpret to resolve the Plaintiff's claims; the Defendant
must explain why interpretation, as opposed to mere reference to
the CBA, is necessary. Because the Defendant has not met its
burden, LMRA Section 301 does not preempt the Plaintiff's claim
under Labor Code Section 510.

b. Rest and Meal Periods

The Plaintiff alleges the Defendant failed to provide rest and meal
periods or compensation in lieu thereof under California Labor Code
Sections 226.7 and 512. The Defendant contends that the LMRA
preempts these claims because the claims are inextricably
intertwined with the SEIU CBA and require interpretation of the
SEIU CBA.

Judge Corley finds that the Defendant has not established that the
first step of the LMRA preemption test is met. The "Plaintiff's
meal and rest break claims arise under state law and not solely by
virtue of the CBA -- that the CBA includes provisions regarding
meal and rest breaks is insufficient for preemption."

With respect to the second step of the LMRA preemption test, the
Defendant insists that the SEIU CBA's references to meal and rest
breaks mean that resolution of the Plaintiff's meal and rest break
claims would require interpretation of the CBA. However, Judge
Corley finds that the state law rights are independent of the cited
CBA term. In other words, the Defendant does not explain why the
Plaintiff's state law break rights depend on the term "emergency"
in the SEIU CBA. Thus, because the right at issue is not
substantially dependent on analysis of a collective bargaining
agreement, the Plaintiff's claims are not preempted under LMRA
Section 301.

c. Minimum Wage

The Defendant's preemption arguments regarding the minimum wage
claims similarly fail. First, Judge Corley finds that the Defendant
fails to explain why the Court would need to interpret specific
SEIU CBA provisions to adjudicate the Plaintiff's state law right
to minimum wage payments. Second, the Defendant argues that "all
the FAC claims are derivative of the overtime claims" and, thus,
should be preempted or barred. But this argument fails because the
Section 510 claim is not preempted. Thus, the Defendant has not met
its burden to show that preemption applies as to the minimum wage
claim.

d. California Labor Code Section 204(c)

Finally, the Defendant argues that Labor Code Section 204(c)
exempts the Defendant from the Plaintiff's claims under California
Labor Code Sections 201, 202, 203, 204, and 226. These provisions
govern the timing of wage payments and the content of wage
statements. Section 201 sets baseline rules for payment of wages
upon discharge or layoff. Section 202 sets rules for payment of
wages upon resignation. Section 203 sets penalties for willful
violations of those and other provisions. Section 226 requires
employers to provide itemized wage statements. And Section 204
provides baseline rules for the timing of semimonthly payments
under the Labor Code.

Judge Corley holds that the Plaintiff's claims under Sections 201,
202, 203 and 226 are not preempted under step one of the LMRA
preemption test because 204(c) does not provide an exemption to
those statutes. Moreover, the Defendant has not met its burden to
show that interpreting the SEIU CBA is necessary to resolve the
Plaintiff's claims under prong two. Thus, LMRA Section 301 does not
preempt the Plaintiff's claims under Section 201, 202, 203 and
226.

Judge Corley further finds that Section 204(d) provides that the
"requirements of this section will be deemed satisfied by the
payment of wages for weekly, biweekly, or semimonthly payroll if
the wages are paid not more than seven calendar days following the
close of the payroll period." Section 204(c)'s exemption for CBA
pay arrangements that differ from the requirements in Section 204
operates independently of the Section 204(d) satisfaction
provision. In other words, Section 204(d) states how employers may
comply with Section 204(a), but it does not affect the exemption
for employees covered by a CBA as described in 204(c). Thus,
because LMRA Section 301 preempts the Labor Code Section 204(a)
claim, there is federal jurisdiction over that claim.

B. Defendant's Motion to Dismiss

A claim preempted by Section 301 of the LMRA should be dismissed if
brought by an employee who failed to exhaust the applicable CBA's
grievance and arbitration process. Because the Plaintiff has not
alleged exhaustion under the SEIU CBA for the Section 204 claim,
that claim is dismissed. To the extent the Plaintiff's claim under
California's Business & Professional Code Section 17200 is based on
the Section 204 claim, that claim is also dismissed.

C. Supplemental Jurisdiction

As discussed, the Plaintiff's remaining causes of action are state
law claims. Because the Court has not considered the merits of the
Plaintiff's allegations, judicial economy favors declining to
exercise supplemental jurisdiction.

III. Conclusion

For the reasons she stated, Judge Corley denies the Plaintiff's
motion for remand. She grants in part and denies in part the
Defendant's motion to dismiss: The Plaintiff's Labor Code Section
204 is dismissed as preempted by the LMRA and in all other respects
the motion to dismiss is denied. Because the Court declines
supplemental jurisdiction over the remaining claims, the case is
remanded to the San Francisco Superior Court.

The Order disposes of Docket Nos. 15, 18.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/mr2kp8vn from Leagle.com.


SCRANTON SCHOOL DISTRICT: O'Donnell May Amend Complaint in 30 Days
------------------------------------------------------------------
In the case, ALBERT P. O'DONNELL, REBECCA M. O'BRIEN, and GEORGE
GEVARAS, on behalf of themselves and all others similarly situated,
Plaintiffs v. SCRANTON SCHOOL DISTRICT, et al., Defendants, Civil
Action No. 3:20-CV-225 (M.D. Pa.), Judge Robert D. Mariani of the
U.S. District Court for the Middle District of Pennsylvania grants
the Defendants' Motion to Dismiss the Complaint and dismisses the
Plaintiffs' Class Action Complaint without prejudice.

The Plaintiffs may file an amended complaint within 30 days of the
date of the Order.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/yfwauz22 from Leagle.com.


SCRANTON SCHOOL DISTRICT: O'Donnell Suit Dismissed W/o Prejudice
----------------------------------------------------------------
In the case, ALBERT P. O'DONNELL, REBECCA M. O'BRIEN, and GEORGE
GEVARAS, on behalf of themselves and all others similarly situated,
Plaintiffs v. SCRANTON SCHOOL DISTRICT, et al., Defendants, Civil
Action No. 3:20-CV-225 (M.D. Pa.), Judge Robert D. Mariani of the
U.S. District Court for the Middle District of Pennsylvania grants
the Defendants' Motion to Dismiss the Complaint and dismisses the
Plaintiffs' Class Action Complaint without prejudice.

I. Introduction

The Defendants' Motion to Dismiss the Complaint is pending before
the Court. With the Motion, the Defendants ask the Court to dismiss
the Plaintiffs' Class Action Complaint with prejudice.

The three named Plaintiffs in the Class Action Complaint
("Complaint") are Albert O'Donnell, principal of a Scranton School
District elementary school, Rebecca O'Brien, a teacher in a
Scranton School District middle school, and George Gevaras, a
former maintenance worker at numerous Scranton School District
schools. In addition to the Scranton School District, the
Defendants are current and former School Board Members in the
District.

The 42 U.S.C. Sections 1983 and 1988 action is based on the
Plaintiffs' allegations that the District has numerous confirmed
instances of asbestos contamination and lead in the drinking water
in its schools, and the District was made aware of these problems.
The Plaintiffs maintain in their supporting brief that the
Defendants' "deliberate indifference to the Plaintiffs' safety,
combined with their false affirmation that the Schools were safe,
created a dangerous condition in the Schools resulting in the
Plaintiffs' and putative class members' exposure to asbestos and
lead." The Plaintiffs' Complaint, filed on Feb. 7, 2020, contains
two counts: Count I asserts a State Created Danger claim pursuant
to 42 U.S.C. Sections 1983 and 1988; Count II asserts a Medical
Monitoring claim pursuant to 42 U.S.C. Sections 1983 and 1988.

II. Background

The Plaintiffs are current or former District employees. The
Defendants are the District and current or former School Board
Members. The Individual Defendants allegedly had access to and were
able to review environmental engineering reports about the presence
of asbestos and lead in the District Schools ("Schools"). At all
relevant times, the District owned, possessed, and controlled the
Schools.

At the end of January 2020, the District officials first revealed
widespread asbestos and lead issues affecting most of the Schools
in the District. During the week of Jan. 27, 2020, the District
closed four Schools (Northeast Intermediate, Prescott Elementary,
Willard Elementary, and Robert Morris Elementary) due to the
presence of airborne asbestos and lead in the drinking water. At
the time the Complaint was filed, one of the Schools remained
closed, and the others re-opened without a complete explanation as
to what was done to remediate them.

The Plaintiffs allege that the Defendant District and the Defendant
School Board Members knowingly allowed the presence of asbestos and
lead in unsafe levels within the Schools for an extended period and
did not do anything to properly correct the problems or notify
students, parents, employees, and independent contractors of the
presence of asbestos and lead in unsafe levels until January 2020.

They bring their claims as a class action pursuant to Rule 23(a),
(b)(1), (b)(2) and (b)(3) on behalf of the class defined as
follows: All persons who attend or attended Schools within the
District as students, all parents and/or legal guardians of persons
who attend or attended Schools within the District as students, all
persons who work or worked in Schools within the District as
employees; and all persons who are allowed or were allowed to be
present in the Schools within the District from 2016 to the
present."

Excluded from the Class are those who only attended or worked at
the new Scranton High School, Whittier Elementary, Tripp
Elementary, and Kennedy Elementary during the respective Class
period; the individual District Board Member Defendants; and anyone
who has already manifested a disease a result of exposure to
asbestos or lead in the District Schools.

III. Analysis

The Defendants contend that the Court should dismiss the
Plaintiffs' Complaint on numerous grounds: 1) Supreme Court
precedent forecloses the Plaintiffs' substantive due process claims
based on allegedly unsafe work environments; 2) the Plaintiffs fail
to state a claim under the theory of a state-created danger
asserted in Count I; 3) the Plaintiffs fail to state a claim in
Count II because they are not entitled to medical monitoring under
42 U.S.C. Section 1988; 4) the Plaintiffs have failed to state a
claim for municipal liability pursuant to Monell v. Dep't of Soc.
Servs., 436 U.S. 658 (1978), against Defendant District; 5) Claims
against the Individual Defendants in their official capacities
should be dismissed because they are redundant of claims against
Defendant District; and 6) Claims against individual Defendants are
insufficiently pled and barred by the doctrine of qualified
immunity.

A. Substantive Due Process Claims Based on Allegedly Unsafe Work
Environments

The Defendants first maintain that the Plaintiffs' claims are
categorically barred by Collins v. City of Harker Heights, 503 U.S.
115 (1992), which holds that the Fourteenth Amendment does not
require a state `to provide its employees with certain minimal
levels of safety and security.'" The Plaintiffs respond that the
facts of this case differ from those in Collins such that the
requisite standard is satisfied.

Judge Mariani agrees that a claim that an employer failed to
provide a workplace that is free from unreasonable risks of harm
would fail, but concludes that Collins does not categorically
foreclose the Plaintiffs' substantive due process claim. He does
not disagree with the Defendants' cited authority. However, he
says, in seeking a categorical bar, the Defendants cannot satisfy
their burden of showing that the Plaintiffs' substantive due
process claim should be dismissed with prejudice by summarily
concluding in the margin that the "Plaintiffs' claims are
predicated on a 'public employer's alleged ordinary breach of its
duty of care relative to its employees,' which is not a
constitutional harm." Further, because the Plaintiffs' proposed
class includes students and others and substitution of class
representatives is allowed at the pre-certification stage, the
Defendants' request to dismiss all substantive due process claims
with prejudice based on their Collins argument, which applies only
to employees, is properly denied.

B. State-Created Danger

The Defendants next contend that the Plaintiffs' Fourteenth
Amendment state-created danger claim set out in Count I of the
Complaint must be dismissed because their allegations cannot
satisfy any of the elements under this theory of liability. The
Plaintiffs respond that they properly plead each element of a
state-created danger claim.

Judge Mariani concludes that the Defendants have shown that Count I
of the Plaintiffs' claim is properly dismissed. He finds that (i)
the Plaintiffs' have not satisfied the first requirement for
pleading a state-created danger claim; (ii) because the Defendants'
arguments regarding the second element of a state-created danger
claim do not show that the Plaintiffs have not plausibly pled
conscience-shocking behavior, the Plaintiffs have plausibly pled
conscience-shocking behavior; (iii) he does not consider "all
persons who are allowed or were allowed to be present in the
Schools within the District from 2016 to the present" a discrete
group given its nebulous contours and the foreseen great difficulty
in discerning whether an individual is properly considered a member
of the group; and (iv) the Plaintiffs have not sufficiently pled
the necessary affirmative action on the part of Defendants to
maintain their state-created danger claim.

With this conclusion, Judge Mariani dismisses tCount I of the
Plaintiffs' Complaint must be dismissed.

C. Medical Monitoring Claim

The Defendants contend that Count II of the Plaintiffs' Complaint
fails to state a claim because they "fail to identify any federal
or constitutional right that is actionable under Section 1983." The
Plaintiffs rely on Wright v. City of Philadelphia, Civ. A. Nos.
10-1102, 11-5990, 12-114, 2105 WL 894237 (E.D. Pa. Mar. 2, 2015) to
support their position that Count II states a valid claim under
Sections 1983 and 1988.

Judge Mariani concurs with the Defendants that the Plaintiffs have
not pled an actionable federal claim in Count II. He says, the
Plaintiffs' reliance on Wright does not undermine this
determination in that the Court does not read Wright to establish
an independent federal/constitutional cause of action based on the
alleged need for medical monitoring in the absence of a
relationship between the harm, i.e., the need for increased medical
monitoring, and a separately cognizable federal or constitutional
claim for relief. Wright ultimately concluded that the plaintiffs
had satisfied the requirements of their state-created danger claim
in a situation where the defendant Philadelphia Housing Authority's
maintenance crew had caused asbestos to become airborne in a
plaintiff's apartment and their supervisor knew of the problem,
knew that it could cause harm, and subsequently told the plaintiff
not to worry about "the little white stuff floating in the air"
which she had complained about. These facts are readily
distinguishable from those alleged in the Plaintiffs' Complaint and
provide no support for the viability of Count II.

D. Municipal Liability Claims

The Defendants assert that the Plaintiffs' allegations are
insufficient to state a claim for municipal liability because they
plead no facts to support imposing liability on the School
District. The Plaintiffs maintain that they have alleged sufficient
facts "to raise a reasonable expectation that discovery will reveal
further evidence of the School District's policies and customs
which violated the Plaintiffs' rights."

Judge Mariani agrees that the Plaintiffs' Complaint does not
identify a custom, policy, or decision maker as required for
liability pursuant to Monell and its progeny. However, the issue of
municipal liability need not be further discussed at this juncture
based on the determination that both claims in the Plaintiffs'
Complaint are properly dismissed.

E. Official Capacity Claims

The Defendants state that the Plaintiffs do not specify whether
they assert claims against Defendant Board Members in their
individual or official capacities and, to the extent the claims are
brought against Defendant Board Members in their official
capacities, they must be dismissed as redundant of the claims
brought against the District. The Plaintiffs agree that claims
against Defendant Board Members in their official capacities "are
essentially claims against the School District Defendant, but "they
can properly proceed as an alternative should the District be
dismissed for any reason."

Taking both parties' positions into consideration, Judge Mariani
concludes that dismissal of Defendant Board Members in their
official capacities without prejudice is appropriate.

F. Qualified Immunity

The Defendants assert that the doctrine of qualified immunity bars
the Plaintiffs' claims against Defendant Board Members. The
Plaintiffs respond that the Defendants have not met their burden of
showing that qualified immunity applies.

Judge Mariani concludes that the Defendants have shown that the
Plaintiffs' claims against Defendant School Board Members are
barred by the doctrine of qualified immunity. Given the broad
recognition by the Supreme Court and Third Circuit that a reviewing
court conducting the clearly established inquiry should frame the
issue with specificity, he agrees with the Defendants that no
caselaw suggests that Defendant Board Members could have been on
notice that their conduct violated a constitutional right given the
factual allegations in the Complaint. Thus, he concludes that
Defendant Board Members are entitled to qualified immunity.

IV. Concludes

For the reasons he set forth, Judge Mariani grants the Defendants'
Motion to Dismiss the Complaint. While it appears unlikely that the
Plaintiffs can overcome the pleading deficiencies and qualified
immunity defense discussed, in an abundance of caution, he allows
the Plaintiffs to file an amended complaint. A separate Order will
be entered.

A full-text copy of the Court's July 15, 2022 Memorandum Opinion is
available at https://tinyurl.com/45sbu24u from Leagle.com.


SEALED AIR: Court Amends Scheduling Order in UA Local Class Suit
----------------------------------------------------------------
In the class action lawsuit captioned as UA Local 13 & Employers
Group Insurance Fund v. Sealed Air Corporation, et al., Case No.
1:19-cv-10161-LLS (S.D.N.Y.), the Court entered an amended
scheduling order as follows:

-- Deadline for Production of     July 6, 2022   Aug. 6, 2022
   Expert Witness Reports on
   Issues for Which They Have
   the Burden of Proof

-- Deadline for Opposition        Aug. 3, 2022   Sept. 20, 2022
   Expert Witness Reports
   Deadline and Production
   of Rebuttal Expert Witness
   Reports:

-- Deadline for Completion of     Aug. 24, 2022  Oct. 17, 2022
   Expert Depositions:

Sealed Air is a packaging company known for its brands: Cryovac
food packaging and Bubble Wrap cushioning packaging. It sold off
its stake in Diversey Holdings in 2017.

A copy of the Court's order dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3OlaJkH at no extra charge.[CC]

SEGA OF AMERICA: Muto Appeals Rigged Arcade Machine Case Dismissal
-------------------------------------------------------------------
Plaintiff MARCELO MUTO filed an appeal from a court ruling entered
in the lawsuit entitled Marcelo Muto, individually and on behalf of
all others similarly situated, Plaintiff, v. Sega of America, Inc.,
Play It! Amusements, Inc., Komuse America Inc., Defendants., Case
No. 21-cv-01161, in the United States District Court for the
Central District of California, Riverside.

As reported in the Class Action Reporter, the lawsuit, filed on
July 12, 2021, seeks injunctive and monetary relief and additional
relief for violation of California's Consumers Legal Remedies Act.

Key Master Machine is an amusement arcade machine that is won by
successfully moving the player-controlled key to stop and enter
into a "keyhole" in the machine. Muto claims that the machines are
rigged and are designed to prevent users from being able to win
until a set number of unsuccessful plays have been completed. Muto
played the Key Master Machine on multiple occasions around
mid-to-late 2019 at the Westfield Mall in Palm Desert, California,
says the suit.

On January 25, 2022, the Defendants filed a motion to dismiss the
Plaintiff's first amended class action complaint.

On June 2, 2022, the Court entered an Order granting Defendants'
motion to dismiss.

The appellate case is captioned as Marcelo Muto v. Sega Amusements
International, Ltd., et al., Case No. 22-55646, in the United
States Court of Appeals for the Ninth Circuit, filed on July 6,
2022.

The briefing schedule in the Appellate Case states that:

   -- Appellant Marcelo Muto Mediation Questionnaire was due on
July 13, 2022;

   -- Appellant Marcelo Muto opening brief is due on September 6,
2022;

   -- Appellees Play It! Amusements, Inc., Sega Amusements
International, Ltd. and Sega Corporation answering brief is due on
October 5, 2022; and

   -- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]

Plaintiff-Appellant MARCELO MUTO, individually and on behalf of all
others similarly situated, is represented by:

          Benjamin Heikali, Esq.
          Joshua Nassir, Esq.
          FARUQI & FARUQI, LLP
          1901 Avenue of the Stars, Suite 1060
          Los Angeles, CA 90067
          Telephone: (424) 256-2884

               - and -

          Michael Liskow, Esq.
          CALCATERRA POLLACK LLP
          1140 Avenue of the Americas
          New York, NY 10036-5803
          Telephone: (212) 899-1761

Defendants-Appellees SEGA AMUSEMENTS INTERNATIONAL, LTD., et al.,
are represented by:

          Mariah Lorraine Brandt, Esq.
          Pauleen Truong, Esq.
          PILLSBURY WINTHROP SHAW PITTMAN, LLP
          725 S Figueroa Street, 36th Floor
          Los Angeles, CA 90017
          Telephone: (213) 488-7234

               - and -

          Michael Roy Williams, Esq.
          BIENERT KATZMAN LITTRELL WILLIAMS, LLP
          903 Calle Amanecer, Suite 350
          San Clemente, CA 92673
          Telephone: (949) 369-3700

SHARED IMAGING: Class Cert Hearing Bid Set for August 19
--------------------------------------------------------
In the class action lawsuit captioned as Monica Ranger v. Shared
Imaging, Case No. 2:20-cv-00401 (E.D. Cal.), the Hon. Judge
Kimberly J. Mueller entered an order on motion to certify class
with amended hearing date .

Motion Hearing is set for Aug. 19 2022 at 10:00 AM in Courtroom 3
(KJM) before Chief District Judge Kimberly J. Mueller.

The nature of suit states labor litigation involving employment
discrimination.

Shared Imaging is a hospital & health care company specializing in
multi-vendor service solutions.[CC]

SONAM'S STONEWALLS: First Cir. Affirms Verdict Finding for Gonpo
----------------------------------------------------------------
In the case, JAMPA GONPO, on behalf of himself and others similarly
situated, Plaintiff, Appellee v. SONAM'S STONEWALLS & ART, LLC,
d/b/a Sonam's Stonewalls and Art; SONAM RINCHEN LAMA, Defendants,
Appellants, Case No. 21-1352 (1st Cir.), the U.S. Court of Appeals
for the First Circuit affirms the finding that Lama is liable for
failing to pay all the wages owed to the Plaintiff.

I. Introduction

A Springfield, Massachusetts jury found Defendants Sonam Rinchen
Lama and Sonam's Stonewalls & Art, LLC (collectively, "Lama")
liable for failing to pay all the wages owed to their former
employee, the Plaintiff. Appealing from the hefty tab the jury left
him, Lama trains his focus on two of the district court's
evidentiary decisions -- one to exclude, and one to admit evidence
-- and asks the First Circuit to remand for a new trial. Discerning
no reversible error, it affirms.

II. Background

Mr. Gonpo originally hails from Nepal, where he first met Lama (a
Tibetan immigrant) in 2004. While in Nepal on a trip, Lama
befriended Gonpo, and three years later, there was an arrangement
between the two for Gonpo to move to the United States. There was
some dispute at trial over who asked whom to come over, but suffice
it to say that Lama fronted the cash for the $20,000 bill of
getting Gonpo. Soon after Gonpo's arrival stateside, he began
working for Lama in Lama's stonemasonry business in 2008.

The stonemasonry business is seasonal. Workers generally don't
start up until sometime around March or April because, any earlier,
the ground is still frozen from the New England winter, and things
usually end sometime in November or December, when the first
snowfall comes.

Hotly in dispute in the case was how many hours per week workers
toiled during those in-season months. On the one hand, Gonpo
testified that he and his associates worked six days per week (with
only Sundays off), with weekly hours totaling about 56 or 57 hours.
He lined up testimony from one of his former colleagues that his
hours were similar. Lama, though, claims that none of his employees
worked more than 40 hours in a week, and he lined up testimony from
three of his other employees to that effect. Yet Lama has no
timekeeping records to back up that assertion, instead casting
blame on his bookkeeper, on whom he relied to handle that part of
the business, but who according to Lama turned out to be
incompetent and a thief.

Mr. Gonpo held his position with Lama's business until the end of
the season in 2015, after which he was fired in February 2016. His
termination came in the wake of allegations from Lama's
then-16-year-old daughter that Gonpo had raped her. After police
reports were generated and an investigation concluded, Gonpo was
charged in Massachusetts state court. Following a trial he was
ultimately acquitted.

Not long after the criminal proceedings were instituted in 2016,
Gonpo filed this lawsuit. He brought a host of claims both on his
own behalf and as a putative class action on behalf of other
employees similarly situated. As relevant to the First Circuit
review, his allegations included claims that Lama failed to pay him
a minimum wage for all hours worked and failed to appropriately pay
overtime, in violation of both the federal Fair Labor Standards
Act, 29 U.S.C. Sections 206(a)(1), 207(a)(1), 215(a)(2), and
Massachusetts law, Mass. Gen. Laws ch. 149, Section 148 and ch. 151
Sections 1A-1B. Under the applicable statutes of limitations, the
relevant time period for Gonpo's claims was from September 2013
through November 2015.

After pre-trial motion practice seeking some advance-of-trial
evidentiary rulings, the case was put to a jury over the course of
five days. Objections and sidebar conferences abounded during the
tense trial, as the parties scrapped over the admissibility of
various testimonies and pieces of evidence throughout. Ultimately,
the jury returned a verdict finding for Gonpo. After some more
post-trial motion-practice skirmishes, Lama timely appealed (though
his notice of appeal has since become a subject of controversy).

III. Discussion

A. The Impeachment Evidence

The First Circuit begins with the district court's exclusion of
evidence that Lama's then-16-year-old daughter accused Gonpo of
rape just months before Gonpo began to pursue the wage claims at
issue. Pre-trial, Lama moved in limine for permission to introduce
evidence of these allegations to show that Gonpo brought this suit
to manipulate the rape prosecution and pressure Lama's daughter to
drop the case. Gonpo, of course, opposed the introduction of this
evidence, contending the evidence was immaterial and subject to
exclusion under Rule 403 given its great possibility for
prejudice.

The First Circuit finds that the allegations that Gonpo raped
Lama's then-16-year-old daughter would certainly be "explosive"
evidence of a "shocking or heinous crime likely to inflame the
jury." Those allegations raise the specter that even if the jurors
believed that Gonpo had a legitimate wage claim uninfected with bad
motive, they might nonetheless find against Gonpo out of disgust
for his bad acts -- particularly where finding for Gonpo would
foist a financial burden on the family of the alleged victim. And
that is precisely the concern that the district court, aligning
with Rule 403, sought to avoid. This is far from the rare and
extraordinarily compelling circumstance where we will reverse that
judgment call.

Nor, the First Circuit notes, was Lama's defense entirely
hamstringed as he now bemoans. Contrary to Lama's assertion that he
was "robbed" of his ability to draw Gonpo's credibility into
question, Lama spent time aplenty poking holes in Gonpo's story on
cross-examination. In short, Lama had other opportunities, using
less incendiary evidence, to marshal a robust defense.

B. Colleague's Testimony and Related Evidence

Lama next claims error in the district court's admission of
testimony, along with documentary evidence, from one of Gonpo's
former colleagues, Jamyang Gyatso. Gyatso testified (over
objection) at trial concerning his own experience working for Lama
from 2008 to 2013, the last year of which overlapped with Gonpo's
work during the relevant limitations period.

On appeal wielding a hatchet instead of a scalpel, Lama claims that
the entirety of Gyatso's testimony, as well as his pocket calendar
recording his 2012 work hours, are inadmissible under either Rule
406 or Rule 404(b).

Applying the newly minted Rule 3(c)(6), the First Circuit concludes
that Lama's notice of appeal -- specifying both the final judgment
and some interlocutory orders -- does not prohibit him from
challenging other interlocutory orders not specifically enumerated
in the notice of appeal. Had he wished to "so limit" his notice,
Lama would have been required to state expressly "that the notice
of appeal was so limited." Yet nothing in Lama's notice reflects an
"express statement" limiting the notice of appeal to these orders,
particularly in light of his separate designation of the final
judgment, in which the challenged evidentiary rulings on Gyatso's
testimony and accompanying documentary evidence merged. The First
Circuit thus has jurisdiction to consider Lama's challenges to
these orders.

Turning to the merits, Lama raises on appeal three qualms with the
admission of Gyatso's testimony and the pocket-calendar evidence.

The First Circuit finds that (i) Lama fails to offer a developed or
coherent argument why -- based on the facts actually revealed at
trial -- the district court abused its discretion in finding Rule
406's sampling-and-uniformity test satisfied here to establish
Lama's routine practices; (ii) the calendar served to corroborate
Gyatso's testimony that he worked about 57 hours per week in 2013
by pointing to documentary evidence supporting that he had in fact
worked those same hours in the past; and (iii) Lama identifies no
authority to otherwise support his contention that because Rule 403
applies, so, too, does Rule 404(b).

To be sure, the First Circuit remains mindful that because Rule 406
evidence "necessarily engenders the very real possibility that such
evidence will be used to establish a party's propensity to act in
conformity with its general character," it could "thereby thwart
Rule 404's prohibition." But that is why we apply a high standard
for evidence to be admissible under Rule 406.

IV. Conclusion

All told, the First Circuit affirms. The parties will bear their
own costs.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/398jtn6v from Leagle.com.

Thomas T. Merrigan, with whom Sweeney Merrigan Law, LLP, was on
brief, for the Appellants.

Tiffany Troy -- troylaw@troypllc.com -- with whom Aaron B.
Schweitzer and Troy Law, PLLC, were on brief, for the Appellee.


SONY INTERACTIVE: Court Dismisses Caccuri Suit With Leave to Amend
------------------------------------------------------------------
In the cases, AGUSTIN CACCURI, Plaintiff v. SONY INTERACTIVE
ENTERTAINMENT LLC, Defendant. ADRIAN CENDEJAS, Plaintiff, v. SONY
INTERACTIVE ENTERTAINMENT LLC, et al., Defendant. ALLEN NEUMARK,
Plaintiff v. SONY INTERACTIVE ENTERTAINMENT LLC, et al., Defendant,
Case Nos. 21-cv-03361-RS, 21-cv-03447-RS, 21-cv-05031-RS (N.D.
Cal.), Judge Richard Seeborg of the U.S. District Court for the
Northern District of California grants Sony's motion to dismiss the
Consolidated Class Action Complaint.

I. Introduction

Defendant Sony moves to dismiss the Consolidated Class Action
Complaint for these three related antitrust putative class actions
pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs
Agustin Caccuri, Adrian Cendejas, and Allen Neumark aver that Sony
engaged in monopolistic and anticompetitive conduct in the sale of
digital PlayStation games on its PlayStation Store, averring
violations of Section 2 of the Sherman Antitrust Act, 15 U.S.C.
Section 2, and California's Unfair Competition Law ("UCL"), Cal.
Bus. & Prof. Code Section 17200. The motion to dismiss is granted
because the Plaintiffs have failed to allege adequately
anticompetitive conduct under the Sherman Act, and the other claims
are derivative of the Sherman Act claims.

II. Background

In May and June 2021, these three putative class actions were filed
in the Northern District of California. On June 4, 2021 the
Cendejas action was related to the Caccuri action, and on July 27,
2021, the Neumark action was also related to the Caccuri action. On
Dec. 3, 2021, Michael M. Buchman of Motley Rice LLC was appointed
Interim Lead Counsel for all three related actions.

The Plaintiffs filed a Consolidated Class Action Complaint on Dec.
20, 2021. In the Consolidated Class Action Complaint, the
Plaintiffs aver five claims for relief: (1) monopolization under
Section 2 of the Sherman Act, 15 U.S.C. Section 2 and Section 4 of
the Clayton Act, 15 U.S.C. 4; (2) attempted monopolization under
Section 2 of the Sherman Act, 15 U.S.C. Section 2 and Section 4 of
the Clayton Act, 15 U.S.C. 4; (3) declaratory and injunctive relief
under Section 2 of the Sherman Act, 15 U.S.C. Section 2 and
Sections 2 and 16 of the Clayton Act, 15 U.S.C. Section 26; (4)
damages under the California Unfair Competition Law, Cal. Bus. &
Prof. Code Sections 17200, et seq.; and (5) unjust enrichment.

Sony manufactures, markets, and sells the PlayStation, one of the
most popular home video game systems. Sony launched its most recent
model, the PlayStation 5, in November 2020, and by September 2021
it had sold over 13 million units. In addition to producing the
physical game console, the PlayStation franchise has many other
arms: the PlayStation Store (an online digital video game store),
the PlayStation Network (an online multiplayer gaming service),
PlayStation Now (a subscription-based video game streaming
service), and PlayStation Studios (the video game development
arm).

Most relevant for this litigation is the PlayStation Store, which
launched in 2006 and allows users to purchase digital copies of
PlayStation games and download them directly onto the console,
rather than having to buy physical disks and insert them into the
console's disk drive. Sony sells two versions of the PlayStation 5:
the $499 Base Model allows users to purchase either physical disks
or digital versions of games and the $399 Digital Edition is only
compatible with digital games downloaded from the PlayStation
Store.

On the PlayStation Store, game developers cannot set prices;
instead, the prices are set by Sony. Further, the prices for a
digital version of a game on the PlayStation Store may vary from
the prices for a physical copy of the game available through any
number of retailers. Until April 2019, game developers could sell
download codes for digital PlayStation games through the same
online and brick-and-mortar retailers of the physical games. When
this practice was active, the prices for download codes could vary
from the prices in the PlayStation Store. When Sony eliminated the
download code option, that meant the price in the PlayStation Store
was the only possible price for acquiring a digital copy of a
PlayStation-compatible game.

Although Sony's PlayStation is highly popular, it is not the only
video game console on the market. Major competitors include the
Xbox from Microsoft and the Switch from Nintendo. While some major
video games have versions produced for each of the three consoles,
a purchased video game is only compatible with one specific
console. For example, a consumer who owns both a PlayStation and
Xbox and wants to play the "NBA 2K22" game would need to purchase
two versions of the game, one compatible with PlayStation and one
compatible with Xbox. The different console manufacturers have
different practices concerning the production and sale of games for
their consoles. While 85% of game sales for the Switch console are
for games developed by Nintendo that are exclusive to its console,
only 17% of game sales for PlayStation are games developed by Sony.
Microsoft and Nintendo also operate their own virtual stores to
download games directly to consoles. The Microsoft and Nintendo
online stores, however, allow developers to set the retail price
for the game.

III. Discussion

Sony argues that the Complaint should be dismissed because (1) the
Plaintiffs have failed to allege monopoly power or a dangerous
probability of achieving monopoly power in a properly-defined
relevant antitrust market; (2) the Plaintiffs have failed to allege
anticompetitive conduct; (3) the Plaintiffs have failed to allege
anticompetitive effects or antitrust injury; and (4) the Plaintiffs
have failed to allege facts supporting its derivative claims.

Judge Seeborg holds that the Plaintiffs have failed to plead one of
the elements required to establish anticompetitive conduct.

First, he finds that the Plaintiffs have offered "factual
allegations to rebut the economic presumption that PlayStation
consumers make a knowing choice to restrict their aftermarket
options when they decide in the initial (competitive) market" to
purchase a PlayStation console rather than another console.

Second, he finds that the Plaintiffs have failed to plead
anticompetitive conduct necessary for their Sherman Act claims. He
says, the Plaintiffs provide conclusory statements that Sony
voluntarily terminated a profitable practice, but do not provide
sufficient factual detail. Although it seems almost certain that
Sony gained some revenue through download codes, and the Plaintiffs
need not at this stage prove that the practice was profitable, the
Plaintiffs must at a minimum describe the process through which
Sony earned money from the practice. Judge Seeborg cannot assume
the practice was profitable when the Plaintiffs have failed to
plead how Sony received any money through the practice.

Third, Judge Seeborg holds that the Plaintiffs have pled an
anticompetitive effect because, at a minimum, they have pled
increased prices. The Plaintiffs plead that numerous games are more
expensive in digital versions than in physical versions, despite
additional costs present for physical versions like the production
of the materials and shipping. Although as the Defendant points out
there may be other reasons for the increased prices, and physical
versions of the game may not be the appropriate benchmark, the
Plaintiffs have at this stage pled increased prices. The Plaintiffs
have also pled an "injury of the type the antitrust laws were
intended to prevent and that flows from that which makes
defendants' acts unlawful." Maintaining supracompetitive prices is
a cognizable antitrust injury, and the Plaintiffs argue that Sony's
actions were designed to maintain supracompetitive prices.

Lastly, the Plaintiffs' UCL claim is derivative of their Sherman
Act claims, and because the Sherman Act claims are not adequately
pled, the UCL claim must be dismissed. The claim for unjust
enrichment fails for the same reason.

IV. Conclusion

For all the foregoing reasons, Judge Seeborg grants the motion to
dismiss because the Plaintiffs have failed to allege adequately
anticompetitive conduct under the Sherman Act, and the other claims
are derivative of the Sherman Act claims. Although it is unclear at
this time if the deficiencies may be cured, he grants the Plaintiff
leave to amend. Any amended Complaint must be filed within 30 days
of the filing of the Order.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/3kzkxtdv from Leagle.com.


SPRINGFIELD, MA: Class Status Bid in Firefighters' Bias Suit Nixed
------------------------------------------------------------------
In an article for JDSupra.com, Alex Karasik and Gerald Maatman Jr.
of Seyfarth Shaw LLP wrote that In Savage, et al. v. The City of
Springfield, Case No. 3:18-CV-30614, 2022 LEXIS 124587 (D. Mass.
July 14, 2022), a federal court in Massachusetts recently denied
Plaintiffs' motion for class certification, holding that (1)
Plaintiffs failed to establish that a putative class of Black and
Hispanic firefighters met the numerosity requirement of Rule
23(a)(1); and (2) that the seminal ruling in Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 349 (2011), barred certification of a Rule
23(b)(2) class as sought by Plaintiffs.

This ruling is well worth a read by employers, and will be useful
to cite when plaintiffs attempt to certify small class actions that
hover near the 40-person threshold, as well as when potential
damages may require an individualized analysis.

Case Background

On March 17, 1995, the City of Springfield, Massachusetts
implemented an ordinance requiring many municipal employees to
reside in the City as a condition of employment. Id. at *3-4. In
May of 2016, Plaintiffs sued the City, the Springfield Fire
Department, the Springfield Fire Chiefs Association, and others,
alleging a long-standing non-compliance with the residency
ordinance prompted by promotions of non-resident employees of the
Fire Department to higher ranking positions. Id. at *5.

In relevant part, Plaintiffs sought to certify a class of, "all
current and former Black and Hispanic firefighters employed by the
Springfield Fire Department since March 17, 1995." Id. at *26-27.
At oral argument, counsel for Plaintiffs identified the primary
class claim as emanating from the City's alleged arbitrary and
capricious enforcement of the residency ordinance. Plaintiffs
further alleged that the City had a practice of maintaining a
racially hostile and retaliatory work environment, and sought to
include hostile work environment as a claim asserted on behalf of
the class. Following Plaintiffs' motion for class certification,
Defendants sought to exclude various pieces of evidence, including
Plaintiffs' expert declaration and supporting testimony, non-expert
declarations, social media posts, and agency decisions.

Court's Decision

The Court denied Plaintiffs' motion for class certification. First,
analyzing the Rule 23(a)(1) class certification requirement, the
Court held that Plaintiffs' calculation of fifty putative class
members was insufficiently supported. Id. a *30.  Specifically, the
Court observed that Plaintiffs cited to three paragraphs of their
expert's declaration that were not directed at the question of how
many minority firefighters were denied promotional opportunities,
but rather, the racial composition of the ranks of lieutenant,
captain, and above. The Court opined that one of Plaintiff's
declarations made no effort to explain how he arrived at the
estimate of 50 potential class members, and at most, he established
there would be 32 class members, which was below the 40 class
member threshold required by Rule 23. Accordingly, the Court held
that the numerosity requirement was not met. Id. at *35.

Second, the Court addressed the commonality requirement per Rule
23(a)(2). Id. Plaintiffs argued "that the common questions of law
and facts are whether the City discriminated against Black and
Hispanic firefighters in the Springfield Fire Department, in
violation of the First and Fourteenth Amendments of the U.S.
Constitution, Title VII of the Civil Rights Act of 1964 . . . and
42 U.S.C. Sections 1981, 1983, and 1988 by maintaining a racially
hostile work environment and allowing white applicants to violate
the City's valid and enforceable residency law for well over 20
years, and retroactively excusing white firefighters from
compliance with the residency law after Plaintiff filed lawsuits
challenging the City's enforcement practices." Id. After addressing
and dismissing the constitutional challenges, the Court held in
relevant part that pursuant to Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 349 (2011), it was "not sufficient for Plaintiffs to
merely allege 'that they have all suffered a violation of the same
provision of law,' id., 564 U.S. at 350, which is precisely what
Plaintiffs have done in their proposed common question." Id. at
*37. After reviewing Plaintiffs' evidence, the Court held that
Plaintiffs allegedly suffered the same injury (deprivation of
promotional opportunities), from the same source (non-enforcement
of the residency ordinance), and thus established commonality. Id.
at *42.

Third, the Court held that Plaintiffs satisfied Rule 23(a)(4)'s
adequacy factor, which dictates that the proposed class
representatives must fairly and adequately protect the interests of
the class. Id. at *44-45. Plaintiffs argued that they were adequate
representatives because they had no conflicts of interest with the
proposed members of the class; to the contrary, their interests in
ensuring that Defendants are held accountable for their
discriminatory promotion practices were perfectly aligned. Id. at
*45. The Court held that Plaintiffs met the adequacy requirement
since there appeared to be no conflicts between Plaintiffs and
other current and former minority employees of the Fire Department,
who would have the same interest in ensuring enforcement of the
residency ordinance and recovering unpaid wages and benefits from
Defendants. Id. at *46.

Finally, the Court held that Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 349 (2011), barred certification of a Rule 23(b)(2)
class, as sought by Plaintiffs. The Court explained that incidental
damages that are permissible under Rule 23(b)(2) are those that
would flow to the class as a whole by virtue of its securing the
sought after injunctive relief. Id. at *47 (citations and
quotations omitted). Noting that Plaintiffs' counsel acknowledged
at oral argument that the award of damages would require
individualized assessment for each minority firefighter denied a
promotional opportunity, the Court held that monetary damages
Plaintiff seek do not meet these requirements. Accordingly, because
Plaintiffs failed to meet the requirements Rule 23(a)(1) and Rule
23(b)(2), the Court denied Plaintiffs' motion for class
certification.

Implications For Employers

While Plaintiffs may have had potentially strong arguments for a
handful of individuals, this ruling illustrates that courts will
carefully examine motions for class certification in accordance
with Rule 23, regardless of the strength of the claims of the lead
Plaintiffs. In situations where the putative class size is close to
40 members but short of that baseline, and hence numerosity may be
in question, employers would be wise to consider citing the Court's
scrutiny here of Plaintiffs' declaration testimony. Finally, from a
big picture standpoint in the class action litigation landscape,
this ruling confirms that the U.S. Supreme Court's Wal-Mart Stores,
Inc. v. Dukes decision remains a cornerstone case for employers to
use when attempting to fracture a putative class action. [GN]

SUFFOLK UNIVERSITY: Rest of Judgment Bid in Refund Suit Denied
--------------------------------------------------------------
In the case, IN RE: SUFFOLK UNIVERSITY COVID REFUND LITIGATION.
THIS DOCUMENT RELATES TO: ALL ACTIONS, Civil Action No.
20-10985-WGY (D. Mass.), Judge William G. Young of the U.S.
District Court for the District of Massachusetts denies the
remainder of Suffolk's motion for summary judgment as to the
Plaintiffs' tuition-based implied contract and unjust enrichment
claims.

In two putative class actions, Plaintiffs Julia Durbeck, Anna
Francesca Foti, and Mary Anne Foti sued Suffolk claiming breach of
an implied contract and unjust enrichment due to Suffolk's
transition to a fully online program in light of the COVID-19
Pandemic. The Plaintiffs' claims can be grouped into two general
categories: (1) claims based on students' payment of tuition
("tuition-based claims"); and (2) claims based on the students'
payment of academic fees ("fee-based claims"). In the fall of 2020,
Suffolk moved to dismiss these class actions for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6); the
Court denied both motions. These cases were consolidated on Aug.
24, 2021.

Currently before the Court is Suffolk's motion for summary
judgment. At a hearing held on June 29, 2022, the Court granted in
part Suffolk's motion for summary judgment and took the remainder
of the motion under advisement.

The Court granted Suffolk's motion only as to the fee-based claims
(counts III and IV of Durbeck's Complaint and the fee-based
portions of counts I and II of the Fotis' Complaint). It concluded
that there was no genuine dispute of material fact that these fees
did not mention -- in general or specific terms -- any connection
to an in-person educational experience.

The Court took under advisement the portion of the motion for
summary judgment targeting the Plaintiffs' tuition-based claims. At
the hearing, the counsel for Suffolk argued that two new pieces of
the record demonstrated the need for summary judgment: (1) the
Acknowledgment of Debt Terms and Conditions and the Tuition Refund
Schedule, which counsel claimed prevent the existence of an implied
contract; and (2) the fact that online courses and in-person
courses in Suffolk's in-person undergraduate program are priced the
same per credit, which the counsel purported precludes Plaintiffs
from establishing damages.

First, Judge Young finds that the Acknowledgement, which
undergraduate students sign, states that students have an
obligation to pay "tuition, room and board (if applicable), and
other applicable fees by the due date" and that the student will be
required to pay "all or a portion of the tuition and fees" even if
they drop out or withdraw from Suffolk, in accordance with the
Tuition Refund Schedule. This agreement does not defeat the
Plaintiffs' tuition-based claims. The Acknowledgment does not
constitute a fully integrated contract covering the same subject
matter as the purported implied contract -- what students are
entitled to in the event of an unforeseen campus closure. Suffolk's
reliance on Zhao v. CIEE Inc. is misplaced; there, the First
Circuit dealt with an agreement that explicitly contemplated
"factors beyond the School's control," unlike the Acknowledgment in
the case at bar.

Second, it is undisputed that Suffolk charges the same price for
its online courses as it does for its in-person courses in its
in-person undergraduate program. ]Students who attend online
courses in Suffolk's in-person undergraduate program, however,
still have access to in-person facilities and experiences because,
as the counsel emphasized at hearing, Suffolk does not have an
online undergraduate program; therefore, presumably the cost of
these in-person services is included in the course price regardless
whether it is delivered online or in-person.

This fact raises concerns that calculating damages for these claims
would run afoul of the educational malpractice bar. Therefore,
Judge Young holds that the Plaintiffs' tuition-based claims are
only allowed to proceed to damages calculation insofar as they can
demonstrate at trial either: (1) that Suffolk has a particular
method for calculating the cost difference between its online and
in-person programs and apply that method of calculation to the
in-person undergraduate program; or (2) that a consistent cost
differential -- either across school years or across programs --
exists between the online and in-person versions of Suffolk's other
educational programs (such as the MBA) and apply that differential
to the in-person undergraduate program. After all, there is only
one Suffolk University in downtown Boston.

In its summary judgment briefing, Suffolk also raises several other
objections to the Plaintiffs' implied contract and unjust
enrichment claims -- including the issue of disclaimers, the
doctrine of impossibility, and the viability of unjust enrichment
claims at the class action stage. These, and other objections
raised by Suffolk in briefing, are unpersuasive on the summary
judgment record, Judge Young finds.

Accordingly, Judge Young denies the remainder of Suffolk's motion
for summary judgment as to the Plaintiffs' tuition-based implied
contract and unjust enrichment claims (counts I & II of Durbeck's
Complaint and portions of counts I & II of the Fotis' Complaint).

A full-text copy of the Court's July 13, 2022 Order is available at
https://tinyurl.com/yreynrur from Leagle.com.


SUTTER VALLEY: Ward's Bids to Certify Class Denied W/o Prejudice
----------------------------------------------------------------
In the case, Jennifer Ward, et al., Plaintiffs v. Sutter Valley
Hospitals, Defendant, Case No. 2:19-cv-00581-KJM-AC (E.D. Cal.),
Judge Kimberly J. Mueller of the U.S. District Court for the
Eastern District of California enters an Order:

   1) denying the Defendant's motion to exclude testimony;

   2) granting the Defendant's motion to strike supplemental
      declaration;

   3) denying the Plaintiffs' motion to strike class member
      declarations;

   4) denying the Plaintiffs' motion for class certification; and

   5) denying the Plaintiffs' motion for conditional
      certification of collective action.

I. Background

Plaintiffs Jennifer Ward and Sacora Besabe bring the wage and hour
action on behalf of surgical technicians against Defendant Sutter.
Sutter operates 24 hospitals and healthcare facilities. It employs
more than 53,000 individuals, with more than 400 being surgical
technicians who work in California.

Ms. Ward started working for Sutter in February 2007 as a surgical
technician at Capitol Pavilion. She also fulfills the
responsibilities of a surgical coordinator. Besabe started working
for Sutter in February 2007 as a surgical technician at Sutter
Memorial.

The Plaintiffs claim they often work overtime and miss meal and
rest breaks because Sutter's facilities are understaffed, and
Sutter consistently has denied overtime payment requests. When
employees did not clock out and accrued overtime, management would
alter the punch times. The Plaintiffs also allege they did not have
proper meal breaks because Sutter required them to stay on-call in
case they were needed, and breaks were frequently interrupted. They
allege Sutter required them to record their time as if their breaks
and hours were compliant with the Labor Code. Sutter required the
Plaintiffs to purchase uniform items and use personal cell phones
for job duties. Sutter did not reimburse these expenses.

Plaintiffs Ward and Besabe brought the putative class action in the
Superior Court of Sacramento County. The Defendant removed. The
Plaintiffs then filed the operative first amended complaint
asserting nine claims: 1) failure to pay overtime and minimum wages
in violation of the Fair Labor Standards Act, 29 U.S.C. Sections
203, 206, 207 (FLSA); 2) failure to pay overtime and minimum wage
in violation of the California Labor Code, Cal. Lab. Code Sections
510, 1194, 1198; 3) failure to provide meal periods in violation of
the California Labor Code, Cal. Lab. Code Sections 226.7 & 512; 4)
failure to provide rest periods in violation of the California
Labor Code, Cal. Lab. Code Sections 226.7 & 512; 5) failure to
provide itemized statements in violation of the California Labor
Code, Cal. Lab. Code Sections 226 & 1174; 6) failure to pay wages
twice a month in violation of the California Labor Code, Cal. Lab.
Code Section 204; 7) failure to reimburse business expenses in
violation of the California Labor Code, Cal. Lab. Code Sections
2800-2802; 8) failure to pay termination pay in violation of the
California Labor Code, Cal. Lab. Code Sections 201-203; and 9)
unlawful competition, unlawful, and fraudulent business practices
in violation of California Business and Professions Code section
17200, et seq.

The Plaintiffs define their proposed class as follows: All persons
who are employed or have been employed by the Defendant in the
State of California who, for the four years prior to the filing of
this class action to the present, have worked as non-exempt
Surgical Technicians, or in related positions (Class Members).

The Plaintiffs propose the following 12 subclasses:

     a. Unpaid Overtime Subclass: All Class Members who are
employed or have been employed by the Defendant in the State of
California who, for the four years prior to the filing of this
class action to the present, have worked as non-exempt employees
and were not paid overtime for hours worked beyond eight (8) hours
in a single day or for hours worked beyond 40 in a single week
pursuant to applicable the Labor Code and applicable IWC Wage
Orders.

     b. Unpaid Wage Subclass: All Class Members who are employed or
have been employed by the Defendant in the State of California who,
for the four years prior to the filing of this class action to the
present, have worked as non-exempt employees and were not paid all
hours worked pursuant to applicable Labor Code sections 510, 511,
1174, 1174.5, 1194 and 1198.

     c. Meal Break Subclass 1: All Class Members who are employed
or have been employed by the Defendant in the State of California
who, for the four years prior to the filing of this class action to
the present, have worked as non-exempt employees and have not been
provided a meal period for every five (5) hours or major fraction
thereof worked per day, and were not provided one (1) hour's pay
for each day on which such meal period was not provided pursuant to
Labor Code sections 226.7 and 512.

     d. Meal Break Subclass 2: All Class Members who are employed
or have been employed by the Defendant in the State of California
who, for the four years prior to the filing of this class action to
the present, have worked as non-exempt employees and who worked
over ten (10) hours in a shift and did not receive a second meal
period.

     e. Meal Break Subclass 3: All Class Members who are employed
or have been employed by the Defendant in the State of California
who, for the four years prior to the filing of this class action to
the present, have worked as non-exempt employees and who were
required to sign meal waivers as a condition of employment when
hired by the Defendant.

     f. Meal Break Subclass 4: All Class Members who are employed
or have been employed by the Defendant in the State of California
who, for the four years prior to the filing of this class action to
the present, have worked as non-exempt employees and, who signed
meal waivers for the second meal and worked over twelve (12) hours
in a shift.

     g. Rest Period Subclass: All Class Members who are employed or
have been employed by the Defendant in the State of California who,
for the four years prior to the filing of this class action to the
present, have worked as nonexempt employees and have not been
provided a rest period for every three and a half (3.5) hours
worked per day, and were not provided compensation of one (1)
hour's pay for each day on which such rest period was not provided
pursuant to Labor Code sections 226.7 and 512.

     h. Paystub Subclass: All Class Members who are employed or
have been employed by the Defendant in the State of California who,
for the four years prior to the filing of this class action to the
present, have worked as non-exempt employees and were not provided
an itemized statement accurately showing total hours worked, the
applicable hourly rates in effect during each pay period and the
corresponding hours worked at each rate pursuant to Labor Code
sections 226 and 1174.

     i. Wages Twice Monthly Subclass: All Class Members who are
employed or have been employed by Defendant in the State of
California who, for the four years prior to the filing of the class
action to the present, have worked as non-exempt employees and were
not provided all wages twice monthly pursuant to Labor Code section
204.

     j. Expense Reimbursement Class: All Class Members who were not
reimbursed for phone, uniform and other expenses incurred in the
discharge of their duties in connection with their employment with
the Defendant.

     k. Failure to Pay Termination Pay Subclass: All Class Members
who are employed or have been employed by the Defendant in the
State of California who, for the four years prior to the filing of
this class action to the present, have worked as non-exempt
employees and were not provided all wages and applicable penalties
due to them pursuant to the Labor Code and applicable IWC Wage
Orders.

     l. California Business and Professional Labor Code Section
17200 Subclass: All Class Members who are employed or have been
employed by the Defendant in the State of California who, have
worked as non-exempt employees and who were subjected to the
Defendant's unlawful, unfair or fraudulent business acts or
practices in the form of Labor Code violations regarding overtime,
meal periods, rest periods, expense reimbursement or minimum wages
and/or waiting time penalties.

The five, fully briefed motions currently pending before the court
are supported and opposed in the following documents:

     a. Defendant's motion to exclude testimony: Exclude Expert
Mot., ECF No. 47; Exclude Expert Mem., ECF No. 47-1. The Plaintiffs
oppose. Exclude Expert Opp'n, ECF No. 51. Defendant replied.
Exclude Expert Reply, ECF No. 58.

     b. Motion to strike supplemental declaration: Strike Suppl.
Decl. Mot., ECF No. 57; Strike Suppl. Decl. Mem., ECF No. 57-1. The
Plaintiff's oppose. Strike Suppl. Decl. Opp'n, ECF No. 59. The
Defendant replied. Strike Suppl. Decl. Reply, ECF No. 63.

     c. Plaintiffs' motion to strike class member declarations:
Strike Decl. Mot., ECF No. 53; Strike Decl. Mem., ECF No. 53-1. The
Defendant opposes. Strike Decl. Opp'n, ECF No. 60. The Plaintiffs
replied. Strike Decl. Reply, ECF No. 62.

     d. Plaintiffs' motion for class certification: Class Mot., ECF
No. 43; Class Mem., ECF No. 43-1. The Defendant opposes; Class
Opp'n, ECF No. 48. The Plaintiffs replied. Class Reply, ECF No.
50.

     e. Plaintiffs' motion for conditional certification of
collective action: Collective Mot., ECF No. 44; Mem., ECF No. 44-1.
The Defendant opposes; Collective Opp'n, ECF No. 49. The Plaintiffs
did not reply, but submitted an intent to rely on the decision in
Martinez v. John Muir Health, 17-5779, 2018 WL 1524063, at *1 (N.D.
Cal. Mar. 28, 2018).

On Sep. 9, 2021, the Court held a hearing on the motions, with
Richard Quintilone, II, and Jeffrey Green appearing for the
Plaintiffs and Thomas Geidt and Teresa Ghali for Defendant.  It
submitted the matter following hearing.

II. Discussion

A. Defendant's Motion to Exclude Testimony

As part of the motion for class certification for their "claims for
off-the-clock work, meal and rest break violations, and expense
reimbursements," the Plaintiffs provide an expert declaration from
Bennett Berger who identifies himself as an "expert data analyst."
Sutter moves to exclude Berger's testimony, arguing it is
irrelevant and inadmissible and Berger does not qualify as an
expert under the familiar Daubert test. The Plaintiffs oppose,
arguing Berger's "declaration is reliable and relevant to the facts
of the case."

Judge Mueller holds that Berger's education and experience qualify
him as an expert in data collection and analysis. Berger's
"assignment in the matter is twofold: (1) demonstrate how the data
that the Plaintiffs and the Class seek could be used to calculate
damage under the Plaintiffs' liability theories; and (2) provide a
road map for calculating damages at trial."

In his deposition testimony, Berger confirmed the pay and time data
he received from defendant was "not sufficient to calculate damages
rather, any potential damages model would hinge on a hypothetical
survey or on other assumptions not yet provided by the Plaintiffs'
counsel."

At the time of the Defendants' filing their motion, Berger had not
provided any "road map for calculating damages at trial." "Nor had
he submitted an expert report memorializing his opinions." Despite
these omissions, the Defendant does not claim to have suffered any
prejudice. Judge Mueller denies the motion to exclude Berger's
testimony entirely; however, the deficiencies the defense points to
will impact the weight the Court places on his testimony at the
certification stage.

B. Defendant's Motion to Strike Supplemental Declaration

The Plaintiffs attached a supplemental declaration of Berger to
their reply in support of Class Certification. The Defendant seeks
to strike the declaration in its entirety and seeks leave to file a
motion for sanctions, arguing the Plaintiffs are flouting the
court's deadlines. It argues the supplemental declaration amounts
to the Plaintiffs' granting themselves an unilateral "extension of
time to seek certification and an attempt to patch up some of the
gaping holes in their opening motion."

The Plaintiffs oppose the motion, arguing there is no prejudice to
the Defendant. Their counsel notified the Defendant's counsel that
Berger created a damages model for Ward and Besabe on June 28,
2021, and say they provided an opportunity for the Defendant's
counsel "to examine and continue the Opposition date to incorporate
the findings into their Opposition papers."

Judge Mueller agrees with the Defendant's characterization; the
declaration is not supplemental and introduces new evidence in
providing for the first time Berger's analysis of the "Plaintiffs'
time and pay records." Accordingly, she strikes the supplemental
declaration.

C. Plaintiffs' Motion to Exclude Declarations

The Plaintiffs move to strike the declarations the Defendant
provided in support of its opposition to class and collective
certification. They claim the Defendant acquired the declarations
through coercive and deceptive tactics. The Defendant counters,
arguing "the record before the Court completely refutes the
Plaintiffs' allegations of coercion."

Judge Mueller holds that the testimony the Plaintiffs point to here
as the basis for striking the decelerations amount to minor
inconsistencies or elaborations that do not form a basis for
exclusion as sham affidavits, with one minor exception. The
exception, which the Defendants conceded at hearing, is that the
court should strike a sentence of Nicole Bender's declaration
stating "she has read and been offered a copy of the document
entitled, "Who We Are and Purpose of the Interview." As Bender
testified in her deposition that she did not read her declaration
in its entirety, Judge Mueller therefore strikes this sentence but
otherwise denies this motion.

D. Class Certification

The Plaintiffs seek class certification for a class of "those
employed during the proposed class period" who can be identified
with "Sutter's records, through job titles, and dates of
employment." As noted, the Plaintiffs also propose 12 subclasses.
They seek certification with respect to their claims for failure to
play overtime, failure to provide meal and rest breaks, failure to
provide reimbursement for business expenses, failure to provide
accurate wage statements, and failure to timely pay wages at
termination. The Defendant opposes, arguing no claim is suitable
for class certification.

To be certified, a putative class must meet the threshold
requirements of Federal Rule of Civil Procedure 23(a) and fall into
one of the class categories of Rule 23(b). The Plaintiffs seek
certification of a class in which common questions of law and fact
predominate and a class action is the superior means of
litigation.

Rule 23(a) imposes four requirements on every class. First, the
class must be "so numerous that joinder of all members is
impracticable." Second, questions of law or fact must be common to
the class. Third, the named representatives' claims or defenses
must be typical of those of the class. Fourth, the representatives
must "fairly and adequately protect the interests of the class."

The putative class must also meet the two requirements of Rule
23(b)(3): 1) "the questions of law or fact common to class members
predominate over any questions affecting only individual members,"
and 2) "that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy." The test
of Rule 23(b)(3) is "far more demanding," than that of Rule 23(a).

Judge Mueller finds that (i) although not raised as an issue by the
Defendant, the proposed class and subclass definitions pose an
ascertainability issue, so the Plaintiffs may wish to consider
defining any potential class by adding an end date; (ii) there is
no dispute that numerosity is satisfied, given Sutter's employing
"approximately 400 putative Surgical technician Class Members in
California"; (iii) the record contains no common evidence
demonstrating that all the putative class members' claims can be
resolved efficiently at the same time; (iv) she is not prepared to
find claims and defenses of the proposed class are typical given
the Plaintiffs' inability to establish commonality at this stage;
(v) the proposed representation is adequate; and (vi) she cannot
determine if the predominance and superiority are met given that
the Plaintiffs have not demonstrated that wage violations are
common across the potential class and subclasses.

For these reasons, Judge Mueller denies class certification.

E. FLSA Collective

The Plaintiffs move to preliminarily certify the following FLSA
collective: All persons who are employed or have been employed by
Sutter Valley Hospitals in the State of California who, for the
four years prior to the filing of this class action on February 13,
2019 to the present, have worked as nonexempt Surgical Technicians,
or in related positions.

The Defendant argues "the Court should proceed directly to the
second stage analysis, as extensive discovery on class and
collective issues is now complete." Although the Plaintiffs did not
reply to the Defendant's argument, the Defendant has not shown that
the Court retains this discretion in light of Campbell and later
Ninth Circuit decisions. Judge Mueller thus proceeds with first
step.

The Plaintiffs contend the members of their proposed FLSA
collective are similarly situated because the "Defendant maintained
similar requirements at all its hospitals and surgery centers in
the state of California." Citing to declarations, they claim, "the
experiences of the Plaintiffs and opt-in Plaintiffs substantially
mirror each other." Additionally, the Plaintiffs assert their
expert, Mr. Berger, "can cross-reference timecard records of Class
Member meal periods with payroll data and any activity data on
Class Member cell phones to show whether Class Members worked off
the clock."

The Defendant argues proposed collective members "are not similarly
situated, and their claims could not be manageably tried, as the
Plaintiffs have not pointed to a single companywide policy or
practice that supports their off-the-clock claims for unpaid
minimum wages and overtime." Additionally, the Defendant claims the
declarations are insufficient to establish a FLSA violation.

Judge Mueller finds that the proposed Collective members appear to
have "held similar jobs with similar functions," which may indicate
they are similarly situated. However, the proposed Collective
certification suffers from the same defect as the Plaintiff's
proposed class certification. The declaration and deposition
evidence the Plaintiffs rely on is insufficient to show the
proposed Collective members were subjected to uniform, unlawful
wage policies. Judge Mueller denies this motion, without prejudice.

IV. Conclusion

Judge Mueller denies the Defendant's motion to exclude testimony;
grants the Defendant's motion to strike supplemental reply; denies
the Plaintiffs' motion to strike class member declarations; denies
the Plaintiffs' motion for class certification and their motion for
conditional certification of collective action, each without
prejudice to renewal addressing the issues identified by the
Order.

A full-text copy of the Court's July 15, 2022 Order is available at
https://tinyurl.com/r26ffymf from Leagle.com.


TD BANK: Amended Scheduling Order Entered in Jimenez Class Suit
---------------------------------------------------------------
In the class action lawsuit captioned as JUDITH J. JIMENEZ, on
behalf of herself and all others similarly situated, v. TD BANK,
N.A., Case No. 1:20-cv-07699-NLH-EAP (D.N.J.), the Hon. Judge
Elizabeth A. Pascal entered an amended scheduling order as
follows:

  -- Pretrial factual discovery is          February 3, 2023
     extended to:

  -- All affirmative expert reports         February 17, 2023
     on class certification and
     merits-based expert reports
     and disclosures pursuant to
     FED. R. CIV. P. 26(a)(2) on
     behalf of Plaintiff shall be
     served upon counsel for Defendant
     no later than:

  -- All rebuttal expert reports on         March 17, 2023
     class certification and
     merits-based expert reports and
     disclosures pursuant to FED. R.
     CIV. P. 26(a)(2) on behalf of
     Defendant shall be served upon
     counsel for Plaintiff no later
     than:

  -- Depositions of proposed class          April 17, 2023
     certification and merits based
     expert witnesses be concluded by:

  -- Dispositive motions shall be           May 26, 2023
     filed with the Clerk of the
     Court no later than:

  -- Class certification motions            May 26, 2023.
     shall be filed with the Clerk

     of the Court no later than:

TD Bank, N.A. is an American national bank and the United States
subsidiary of the multinational TD Bank Group.

A copy of the Court's order dated July 8, 2022 is available from
PacerMonitor.com at https://bit.ly/3couv1t at no extra charge.[CC]

TJ INSPECTION: Bid for Collective Action Notice Filed
-----------------------------------------------------
In the class action lawsuit captioned as KOREY FARMER, Individually
and for Others Similarly Situated, v. TJ INSPECTION, INC., Case No.
5:22-cv-00066-DAE (W.D. Tex.), the Parties file an agreed motion
for collective action notice under the Fair Labor Standards Act.

The Parties agree to notice of the lawsuit to be sent to the
following collective pursuant to 29 U.S.C. section 216(b):

   "Current and former inspectors employed by TJ Inspection,
   Inc., who did not have a guarantee of at least four days of
   their day rate during at least one week in the three years
   prior to the Court's Order granting notice."

TJ Inspection is an oil & energy company offering inspection
services.

A copy of the Parties' motion dated July 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3yMl83k at no extra charge.[CC]

The Plaintiff is represented by:

          Richard J. (Rex) Burch, Esq.
          David I. Moulton, Esq.
          BRUCKNER BURCH PLLC
          11 Greenway Plaza, Suite 3025
          Houston, TX 77046
          Telephone: (713) 877-8788
          Facsimile: (713) 877-8065
          E-mail: rburch@brucknerburch.com
                  dmoulton@brucknerburch.com

               - and -

          Michael A. Josephson, Esq.
          Andrew W. Dunlap, Esq.
          JOSEPHSON DUNLAP, LLP
          11 Greenway Plaza, Suite 3
          Houston, TX 77046
          Telephone: (713) 352-1100
          Facsimile: (713) 352-3300
          E-mail: mjosephson@mybackwages.com
                  adunlap@mybackwages.com

The Defendant is represented by:

          Mark D. Temple, Esq.
          Peter J. Stuhldreher, Esq.
          Paul M. Knettel, Esq.
          BAKER & HOSTETLER LLP
          811 Main Street, Suite 1100
          Houston, TX 77002
          Telephone: (713) 751-1600
          Facsimile: (713) 751-1717
          E-mail: mtemple@bakerlaw.com
                  pstuhldreher@bakerlaw.com
                  pknettel@bakerlaw.com

TOMTOM NORTH: Court Dismisses Amended McVetty Suit With Prejudice
-----------------------------------------------------------------
In the case, FRANCIS McVETTY, individually and on behalf of all
others similarly situated, Plaintiff v. TOMTOM NORTH AMERICA, INC.,
Defendant, Case No. 19 Civ. 4908 (NSR) (S.D.N.Y.), Judge Nelson S.
Roman of the U.S. District Court for the Southern District of New
York grants the Defendant's motion to dismiss Plaintiff's Amended
Complaint.

I. Overview

The putative class action alleges that Defendant TomTom misled
consumers to believe it was promising them that one of its
navigation devices (the "Product") would have "Lifetime Maps" to
avoid having to replace their device every few years. Plaintiff
McVetty, individually and on behalf of others similarly situated,
brings the action against the Defendant asserting claims for
violations of New York's General Business Law Sections 349 and 350,
breach of express warranty, breach of implied warranty of
merchantability, unjust enrichment, and trespass to chattel.

Presently pending before the Court is the Defendant's motion to
dismiss the Plaintiff's Amended Complaint under Federal Rule of
Civil Procedure 12(b)(6). For the following reasons, Judge Roman
grants the Defendant's motion to dismiss.

II. Background

The Defendant, a California corporation with a principal place of
business in New Hampshire, manufactures, distributes, markets,
labels, and sells portable navigation devices to consumers through
third-party retailers, including brick-and-mortar stores and
online, and directly from its website (the "Products"). "All of the
Products are marketed and advertised as coming with Lifetime Maps
or Lifetime Maps and Traffic, point-of-sale marketing, retailers'
catalogues, websites and television sales, uniformly and
pervasively promotes the Lifetime Maps and/or Traffic Updates."
"The product boxes have continuously highlighted the addition of
Lifetime Traffic and/or Maps." Because of rapidly changing
technology, consumers are willing to pay a premium for a device
that comes with updates, so that they are not continually needing
to buy new devices. Accordingly, the Defendant "capitalizes on this
consumer sentiment by essentially saying, 'Buy our higher-priced
devices now and you won't have to get another one for a long time
because we will maintain the level of functionality and added
services.'"

The warranty terms for Lifetime Maps on the Defendant's website
provide the following: "When you purchase a navigation device or
smartphone app which includes Lifetime Maps, you can download 4 or
more full updates of your map every year for the lifetime of your
product. Lifetime Maps are available without additional charge and
for as long as the product is supported." The Plaintiff alleges
that these terms were not available to customers prior to the time
of sale. He further alleges that in the warranty terms, Defendant
"self-servingly" defined "lifetime" as "the useful life of the
device" or "the period of time that the Defendant continues to
support a device with software updates, services, content or
accessories."

In January 2018, the Defendant announced that, due to technological
limitations, certain devices -- not including those with the
Lifetime Maps service -- will not be able to renew maps or services
or receive software updates and, though the device will continue to
function, the map will become out-of-date such that navigation will
be less accurate, and, under a heading of "Replacement Offer"
consumers may consider purchasing a replacement device using a
"rebate" (the "January 2018 Announcement").

Consequently, the Plaintiff alleges that the Defendant changed its
services from providing "Lifetime Maps" to offering "individual map
zones," for which users must switch from one map zone to another by
first downloading a new file onto their navigational device. When
users download a new map zone onto their navigational device, the
map zone replaces the users' current map on your navigational
device. The Plaintiff claims that such changes make it impossible
"to have a fully functioning map service that covers anywhere the
user might drive as advertised by the Defendant through the term
'lifetime maps' since downloading a new map zone deletes the user's
current map zone."

The Plaintiff further alleges that an affected device's capacity to
continue to receive updates is "entirely dependent upon the prior
updates distributed by the Defendant to consumers," and that "by
diminishing and/or eliminating the utility of affected devices, the
Defendant has been able to reverse and/or stem its decline in
direct-to-consumer sales." He also alleges that the "Defendant's
reliance on its sole discretion as to when it decides to cease
providing updates disregards that consumers were buying hardware
(the physical devices) and software (lifetime maps), such that its
revocation of part of the transaction constitutes a taking under
false pretenses and unconscionable commercial conduct."

The Plaintiff, a citizen of Westchester County, New York, alleges
that he purchased one of the Defendant's Products in 2012 (the
"Device") because he "desired to purchase a navigation device with
lifetime maps to avoid having to place his device every few years."
He alleges that he paid a premium for the Device because he "relied
on the Defendant's promise of 'Lifetime Maps' when he chose the
Device over other models." He alleges that the proposed classes for
the putative class action include all consumers in New York who
purchased any of Defendant's navigation devices sold before 2013
"which were advertised as being sold with Lifetime Maps, but were
rendered less valuable, following the Defendant's decision to
terminate Lifetime Maps for users of those devices."

On May 25, 2019, the Plaintiff filed the original operative class
action complaint. On Oct. 18, 2019, the Defendant filed a letter
seeking leave to file its first motion to dismiss, which the Court
subsequently granted and for which it set a briefing schedule.
After the parties filed their briefing on May 19, 2020, the Court
granted the Defendant's first motion to dismiss the Plaintiff's
Complaint for failure to state a claim on March 13, 2021. It
further granted the Plaintiff 30 days to file an amended
complaint.

On April 12, 2021, the Plaintiff filed his Amended Complaint,
asserting claims for (1) violation of New York General Business Law
Sections 349 and 350; (2) breach of express warranty; (3) breach of
implied warranty of merchantability; (4) unjust enrichment; and (5)
trespass to chattel. As relief, he seeks both monetary damages and
injunctive relief that would require Defendant to correct the
Product's alleged misrepresentation.

On June 25, 2021, the Defendant again sought leave to file a motion
to dismiss, which the Court subsequently granted and for which it
issued a briefing schedule. On Sept. 16, 2021, the parties filed
their respective briefing on the instant motion: The Defendant's
notice of motion, memorandum in support, reply; and the Plaintiff
his response in opposition.

III. Discussion

The Plaintiff asserts claims against the Defendant for (1)
violations of New York General Business Law ("GBL") Sections 349
and 350, (2) breach of express warranty, (3) breach of implied
warranty of merchantability, (4) unjust enrichment, and (5)
trespass to chattel. The Defendant seeks to dismiss all claims for
failure to state a claim.

As a preliminary matter, Judge Roman notes that while the Defendant
argued in its briefing that the Plaintiff fails to sufficiently
allege each of his asserted six causes of action, the Plaintiff
only addressed the arguments concerning his claims under GBL
Sections 349 and 350 and for trespass to chattel. As such, he
construes the Plaintiff's failure to address such arguments as him
abandoning his claims for breach of express warranty, breach of
implied warranty of merchantability, and unjust enrichment, and
therefore, the Court dismisses such claims. Accordingly, Judge
Roman only addresses the parties' arguments related to the
Plaintiff's claims under GBL Sections 349 and 350 and for trespass
to chattel.

A. New York General Business Law Sections 349 and 350

The Defendant argues that the Plaintiff fails to assert a plausible
claim under GBL Sections 349 and 350 for three reasons. First, it
argues that the Plaintiff fails to remedy the specific and critical
defect that the Court indicated in its previous decision dismissing
his original Complaint -- namely, that the Plaintiff still fails to
provide the "entire context" of the Product's label -- that is, the
entirety of the Product's packaging, or at the very least, the
entirety of the packaging of any of its Products. Second, it argues
that the Plaintiff's Amended Complaint, like his original
Complaint, still fails to sufficiently allege that any reasonable
consumer would be deceived by a claim of "Lifetime Maps" because
his allegations make clear that his Device continues to have map
updates available. And third, the Defendant argues that the
Plaintiff fails to sufficiently plead a cognizable injury under GBL
Sections 349 and 350 because he still has access to "Lifetime Maps"
in his Device.

After due consideration, Judge Roman agrees. While a review of the
Amended Complaint shows that the Plaintiff remedied the first
deficiency the Court found in its previous opinion, the Plaintiff
still fails to sufficiently allege a cognizable injury and that a
reasonable consumer would be deceived by the use of the word
"Lifetime" on the Product's packaging.

With respect to whether a reasonable consumer would be deceived,
Judge Roman agrees with the Defendant that the Plaintiff's
allegations still fail to indicate how that a reasonable consumer
would be misled by the use of the word "Lifetime." The Plaintiff's
allegations that the use of the word "Lifetime" in the Product's
label is misleading are conclusory because he fails to provide the
"entire context" necessary to determine whether a reasonable
consumer would be misled by such statement. And, considering that
the Plaintiff alleges that the use of the word "Lifetime" in the
label for the Defendant's Products is misleading because the
"Defendant terminated lifetime map updates in January 2018," the
Amended Complaint points to nothing that could discredit the
Defendant's use of the word "Lifetime," particularly since the
Plaintiff himself alleges that his Device continues to have map
updates available.

If anything, through his own allegations, the Plaintiff instead
admits that his Device continues to have map updates
available—which directly contradicts his own allegations that the
Defendant misled him by using the word "Lifetime" in its Products
after it terminated the lifetime map updates in January 2018.  And
on that same basis, Judge Roman is also of the view that the
Amended Complaint also fails to plausibly allege that the Plaintiff
suffered an injury.

Accordingly, Judge Roman dismisses the Plaintiff's claims under GBL
Sections 349 and 350.

B. Trespass to Chattel

The Defendant next argues that the Plaintiff fails to sufficiently
state a claim for trespass to chattel electronically through the
Internet because the Amended Complaint is devoid of any allegation
that the alleged software updates were downloaded to his Device
without his consent and authorization. It argues that, at best, the
Plaintiff's allegations amounts to harmless intermeddling that does
not give rise to a cognizable injury.

After due consideration, Judge Roman agrees. He finds that even
when construing the Amended Complaint in his favor, the Plaintiff
fails to sufficiently allege that Defendant "intentionally, and
without justification or consent, interfered with" his Device
because the Plaintiff, through his active subscription, consented
to receive the same map updates of which he complains. Further,
Judge Roman agrees with the Defendant that the Plaintiff fails to
sufficiently allege a cognizable injury resulting from the alleged
trespass. Specifically, the Plaintiff fails to allege when the
Defendant allegedly transmitted the "inefficient software packages"
to his Device, as well as how exactly the alleged inefficiencies of
these software packages impaired the Device's condition, quality,
and value.

Therefore, Judge Roman concludes that the Plaintiff fails to
plausibly state a claim for trespass to chattel claim, and
dismisses such claim accordingly.

C. Leave to Amend

Judge Roman holds that the Plaintiff has already amended once,
after having the benefit of a previous decision by the Court on the
sufficiency of his claims and a pre-motion letter from Defendant
stating the grounds on which it would move to dismiss his Amended
Complaint. Further, while the Plaintiff requested leave to file a
Second Amended Complaint within the last sentence of his response
in opposition, he has not otherwise suggested that he is in
possession of facts that would cure the deficiencies that the
Defendant highlighted in the instant motion and that the Court
highlighted either in its previous opinion or the instant one.
Therefore, Judge Roman dismisses the Plaintiff's Amended Complaint
with prejudice.

IV. Conclusion

For the foregoing reasons, Judge Roman grants the Defendant's
motion to dismiss, and dismisses the Plaintiff's Amended Complaint
with prejudice. The Clerk of Court is directed to terminate the
motion at ECF No. 30 and the action, to enter judgment accordingly,
and to close the case.

A full-text copy of the Court's July 15, 2022 Opinion & Order is
available at https://tinyurl.com/2wwppa3x from Leagle.com.


UNIVERSITY OF MARYLAND: Bid to Dismiss Moler ERISA Suit Denied
--------------------------------------------------------------
In the case, MARTIN P. MOLER, ET AL., Plaintiffs v. UNIVERSITY OF
MARYLAND MEDICAL SYSTEM, ET AL., Defendants, Civil No.
1:21-cv-01824-JRR (D. Md.), Judge Julie R. Rubin of the U.S.
District Court for the District of Maryland denies Defendants
University of Maryland Medical System and the Employee Benefits
Committee's Motion to Dismiss Plaintiffs Martin P. Moler, Kathleen
D'Ascenzo and John T. Czahor's Complaint.

I. Background

The matter comes before the court on Defendants University of
Maryland Medical System ("UMMS") and the Employee Benefits
Committee's ("EBC") Motion to Dismiss.

The Plaintiffs bring a class action pursuant to the Employee
Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C.
Sections 1109, 1132, for breach of fiduciary duties against
Defendants UMMS and EBC on behalf of the UMMS 401(a) Defined
Contribution Plan and the UMMS Voluntary 403(b) Plan, themselves as
individuals as well as all others with whom they are similarly
situated. The Plans are defined contribution plans, which means
that participants' retirement benefits are limited to the value of
their individual investment accounts as determined by market
performance.

Based on the Plans' assets, they are classified as "Large" plans in
the defined contribution plan marketplace, i.e., valued in the
range of $200 Million to $1 Billion. The asset strength of the
Plans affords considerable bargaining power regarding the
transaction and management fees and expenses charged against the
Plans' participants. Plans participants shoulder the risks and
expenses associated with their individual investment accounts; the
Plans fiduciaries to not bear or absorb investment related fees and
expenses.

UMMS serves as the sponsor, administrator, and as a fiduciary of
the Plans, and delegates certain administrative and investment
duties to the EBC. The EBC's members are appointed by UMMS to serve
on the committee as fiduciaries to the Plans. Defendants select
investment options from which participants choose for their
individual accounts. Participants may also select funds made
available through GoalMaker, Prudential Insurance Company's
proprietary asset allocation service. Participants' funds are
invested using GoalMaker unless participants direct their
contributions elsewhere.

The Plaintiffs bring two claims for relief. The first charges
Defendants with breach of their fiduciary duties of "prudence."
They allege  Defendants breached their fiduciary duties of prudence
by 1) failure to investigate and select investment options based on
investment merit considerations of cost and performance; 2)
imprudent selection of underperforming investments; 3) failure to
investigate and select lower-cost mutual fund share classes; 4)
failure to monitor the Prudential Principal Preservation Separate
Account ("PPSA"); 5) offering only one stable value fund (PPSA)
despite a history of under-performance and excessive cost, and
allowing GoalMaker to place substantial percentages of holdings
into this fund; and 6) failure to monitor or control the Plans'
recordkeeping and other administrative expenses. Plaintiffs' second
claim charges that UMMS failed to "monitor" the EBC to ensure its
members fulfilled their fiduciary duties to the Plans.

II. Analysis

A. Share Classes

The Plaintiffs allege that lower cost mutual fund share classes
were available for the class period and were identical to the funds
chosen, but for their cost. They also allege that the flawed
fiduciary process employed by the Defendants resulted in the
selection of high-cost funds through GoalMaker, and that those
funds performed poorly.

The Defendants assert that the cost difference that the Plaintiffs
complain of is reasonably explained by revenue sharing where
"Defendants actively managed funds with revenue sharing that
generated fees offsetting recordkeeping and administrative costs."
They aver further that the practice of revenue sharing allowed the
Defendants to defray recordkeeping fees and plan administrative
costs.

Judge Robin opines that while the Defendants provide an explanation
for the choices made, the Plaintiffs are not required to rebut or
overcome that explanation at the pleading stage. The Plaintiffs
have alleged facts to support an inference of imprudence, as they
have alleged well-pled facts regarding performance of the chosen
funds in comparison to the less-expensive funds, and superior
performance of the less expensive choice. These facts, assumed
true, support the inference that Defendants breached their
fiduciary duty in selecting the higher-cost funds. The Motion will
be denied on these grounds.

B. Actively Managed Funds

The Plaintiffs allege that the Plans' funds underperformed "not
only cheaper comparator funds but also their benchmark indices over
a 10-year period and 3 other funds underperformed for at least 5
years." The Defendants protest that the Plaintiffs' allegations
impermissibly rely on hindsight, and urge that the proper inquiry
is the decision-making process, rather than the result. They claim
the Plaintiffs cannot satisfy the pleading standards "by using
cherry-picked comparators selected with the benefit of hindsight,
as virtually any investment can be shown to 'underperform' at some
point in time." The investments' long-term underperformance is
categorically different than showing what a fiduciary should have
done in hindsight.

Judge Robin opines that the Plaintiffs' allegations go beyond
reliance upon other investments that outperformed the selected
funds. They point to similar funds with lower expense ratios than
the Plans funds, comparing their performances up to a 10-year
period. Assumed true, these facts support the inference that the
Defendants failed to monitor and remove these historically
underperforming funds. The Motion will be denied on these grounds.

C. Stable Value Funds

The Plaintiffs charge that the Defendants' inclusion of
Prudential's PPSA was imprudent. In particular, the Plaintiffs take
issue with the large fee of the fund in comparison to its minimal
returns. The Defendants argue that the comparisons provided by the
Plaintiffs are inapplicable and irrelevant because they compare
different investment periods. They further argue that the proposed
comparators are not meaningful benchmarks because three of the
comparators do not guarantee principal or interest credits as the
Plans' fund does; this, the Defendants argue, constitutes a
material distinction.

Judge Robin holds that determination of the adequacy or sufficiency
of comparable benchmarks is a fact-intensive inquiry not properly
resolved on a motion to dismiss, and one that may require expert
opinion. The Plaintiffs have properly alleged a comparable
benchmark upon which to analyze the performance of the stable value
fund for purposes of the complaint. The complaint alleges facts to
support the inference that the PPSA underperformed during the
relevant period and that a prudent investor would have removed the
fund from the Plan. The Motion will be denied on these grounds.

D. Recordkeeping

The Plaintiffs claim that the Defendants breached their fiduciary
duty of prudence by failing to monitor, manage and control the
Plans' recordkeeping and administrative costs and expenses and by
failing to remain informed about fee trends in the marketplace.
Plaintiffs further claim that Defendants failed to solicit bids,
negotiate fees, cap revenue sharing payments, and "thus, caused the
Plans' participants to pay excessive recordkeeping fees." The
Defendants counter that the Plaintiffs fail to allege facts
sufficient to show that the fees were excessive for the services
rendered. But the Plaintiffs need not resolve this challenge to
survive the Motion.

Judge Robin finds that the Plaintiffs have stated sufficient
allegations that Defendants failed to monitor fees, and that the
fees were excessive and unreasonable, amounting to a breach of
fiduciary duty. The Motion will be denied on these grounds.

E. Monitoring EBC

The Plaintiffs claim UMMS breached its fiduciary duty by failing to
monitor the EBC to ensure its members fulfilled their respective
duties to the Plans and the Plaintiffs. The Defendants argue that
the Plaintiffs did not sufficiently allege the EBC breached its
fiduciary duties, as required to state a claim for failing to
monitor.

As she set forth, Judge Robin opines that the Plaintiffs' complaint
alleges sufficient breaches of fiduciary duty by UMMS to support
underlying imprudence as required for a failure to monitor claim.
The Motion will be denied on these grounds.

III. Conclusion

For these reasons, Judge Robin denies Defendant UMMS and the EBC's
Motion to Dismiss Plaintiffs' Complaint. The Court will issue an
accompanying order in accordance with its Memorandum Opinion.

A full-text copy of the Court's July 13, 2022 Memorandum Opinion is
available at https://tinyurl.com/5f2wu97p from Leagle.com.


UNIVERSITY OF MARYLAND: Court Strikes Exhibits in Moler Suit
------------------------------------------------------------
In the case, MARTIN P. MOLER, ET AL., Plaintiffs v. UNIVERSITY OF
MARYLAND MEDICAL SYSTEM, ET AL., Defendants, Civil No.
1:21-cv-01824-JRR (D. Md.), Judge Julie R. Rubin of the U.S.
District Court for the District of Maryland grants the Plaintiffs'
Motion to Strike Exhibits D, G, and H to the Defendants' Motion to
Dismiss.

The Plaintiffs filed a Class Action Complaint pursuant to the
Employee Retirement Income Security Act of 1974 ("ERISA") for
breach of fiduciary duties against Defendants University of
Maryland Medical System ("UMMS") and the Employee Benefits
Committee ("EBC") on behalf of the UMMS 401(a) Defined Contribution
Plan and the UMMS Voluntary 403(b) Plan (collectively the
"Plans").

The complaint generally alleges the following: (1) the Plans are
defined contribution plans, where benefits are limited to the value
of the individual investment accounts as determined by market
performance; (2) UMMS serves as the sponsor, administrator, and a
fiduciary of the Plans, delegating certain administrative and
investment duties to the EBC; (3) the Defendants select investment
options from which participants choose for inclusion in their
individual accounts; (4) Plan participants may also select funds
made available through GoalMaker, Prudential Insurance Co.'s
proprietary asset allocation service; and (5) participant funds are
invested using GoalMaker unless participants direct their
contributions elsewhere.

The Plaintiffs complain that the Defendants breached their
fiduciary duties by: (1) failing to investigate and select prudent
share classes of funds in the Plans; (2) failing to investigate and
select lower cost alternative funds; (3) imprudently choosing
historically under-performing investments; (4) offering only one
stable value fund which was under-performing and expensive, and
allowing GoalMaker to place substantial percentages of holdings
into this fund; (5) failing to monitor or control the Plans'
recordkeeping and other administrative expenses. The Plaintiffs
further allege that UMMS failed to monitor other fiduciaries,
including the EBC.

In response to the complaint, the Defendants filed a Rule 12(b)(6)
Motion to Dismiss attaching Exhibits A through H, collectively
consuming 874 pages. As set forth in the Declaration of Howard
Shapiro (co-counsel for the Defendants), the exhibits to the Motion
to Dismiss are as follows:

     a. Exhibit A: the Plan documents, including the UMMS 401(a)
Defined Contribution Plan, the UMMS Voluntary 403(b) Plan, and the
Summary Plan Description of UMMS Voluntary 403(b) Plan;

     b. Exhibit B: the UMMS Defined Contribution Plan Discretionary
3(38) Status Client Agreement with Asset Strategy Consultants;

     c. Exhibit C: the Retirement Enrollment Guides sent to the
Plans' participants in 2016;

     d. Exhibit D: the Putnam Stable Value Fund Offering Statement,
dated May 15, 2020;

     e. Exhibit E: excerpts of IRS Form 5500s for the UMMS 401(a)
Defined Contribution Plan for the years 2015 to 2019;

     f. Exhibit F: the October 2020 UMMS Voluntary 403(b) Plan
404(a)(5) Fee Disclosure;

     g. Exhibit G: the Fund Change Notices with Fund Fact Sheets;
and

     h. Exhibit H: fund fact sheets made available to Plan
participants.

The Plaintiffs oppose the Motion to Dismiss in substance and
request that the court strike Exhibits D, G and H.

In ruling on a motion to dismiss, courts are generally limited to
"considering the sufficiency of the allegations set forth in the
complaint and the 'documents attached or incorporated into the
complaint.'" A court may consider extrinsic documents attached to a
motion to dismiss where the document is "integral to and explicitly
relied on in the complaint," and when "the plaintiffs do not
challenge the document's authenticity." A document is "integral" to
a complaint where "its very existence, and not the mere information
it contains, gives rise to the legal rights asserted" or where the
legal rights at issue in the complaint rely "'heavily upon its
terms and effect.'" Although courts may consider relevant, un-pled
facts subject to judicial notice, given the stage of the case,
judicially noticed facts must be construed in a light favorable to
the plaintiff.

Judge Rubin agrees that the Challenged Exhibits are neither
integral to the complaint nor expressly relied upon therein.
Rather, the Challenged Exhibits appear to the Court offered to cast
the substantive merits of the action in a defense-oriented light
rather than to challenge the sufficiency of the pleading. While
this is certainly understandable insofar as it is the long term
objective of the Defendants to prevail, at this stage,
consideration of the Challenged Exhibits converts the Motion to one
for summary judgment and imposes upon the Plaintiff the unfair and
rather impossible task of proving its case in advance of fulsome
discovery.

For the reasons she set forth, by accompanying order, Judge Rubin
grants the Motion to Strike, orders that Exhibits D, G, and H to
the Motion to Dismiss be stricken, and does not consider the
Challenged Exhibits in adjudicating the Motion to Dismiss.

A full-text copy of the Court's July 13, 2022 Memorandum Opinion is
available at https://tinyurl.com/2d5smkzm from Leagle.com.


VERIZON WIRELESS: Corsi et al. Sue Over Undisclosed Charges
-----------------------------------------------------------
Anne Bucher of Top Class Actions reports that a new class action
lawsuit claims Verizon Wireless has engaged in a "bait-and-switch
scheme" by advertising flat rate fees but charging mobile customers
a Verizon administrative charge on top of the promised price.

A group of five plaintiffs lodged the Verizon class action lawsuit
against Cellco Partnership d/b/a Verizon Wireless and Verizon
Communications Inc., claiming they charged the Verizon
administrative charge without customers' consent.  The Verizon
class action lawsuit alleges Verizon began charging the
administrative charge on its postpaid wireless customers' bills in
2005. The Verizon administration charge allegedly started at a rate
of 40 cents per month and increased on a regular basis.  Currently,
the plaintiffs say the Verizon administrative charge is $3.30 per
line per month, which is more than eight times the original
amount.

"Verizon has used the Administrative Charge as a revenue lever to
covertly jack up its monthly service prices and to squeeze its
existing subscribers for more cash whenever Verizon desires," the
Verizon class action lawsuit alleges.

Verizon has allegedly improperly reaped billions of dollars from
the Verizon administrative charge scheme.  Customers are not
informed of Verizon administrative charge until they receive their
first bill, plaintiffs allege.  Customers are not made aware of the
Verizon administrative charge until they receive their first
monthly billing statement, "which they begin receiving only after
they have signed up for wireless service and are committed to their
purchase and cannot cancel without penalty," the Verizon class
action lawsuit explains.

The plaintiffs allege Verizon provides conflicting information
about the reasons behind the charge. On the monthly bills, Verizon
allegedly falsely states that the administrative charge is imposed
to "cover the costs that are billed to us by federal, state, or
local governments."

The Verizon website allegedly falsely states that the Verizon
administrative charge is tied to the company's operating costs.
The plaintiffs are asking the court to compel Verizon to notify
potential customers about the Verizon administrative charge in its
advertising and to reimburse Class Members for undisclosed
extra-contractual fees they paid.

The report notes this is not the first time Verizon has faced a
class action lawsuit over allegedly undisclosed fees.  Verizon has
also recently agreed to settle a class action lawsuit alleging it
violated the Telephone Consumer Protection Act with pre-recorded
debt collection calls.

The plaintiffs are represented by Stephen P. DeNittis, Joseph A.
Osefchen, and Shane T. Prince of DeNittis Osefchen Prince PC, and
by Daniel M. Hattis and Paul Karl Lukacs of Hattis & Lucacs.

The Verizon Administrative Charge Class Action Lawsuit is styled,
Cintia Corsi, et al. v. Cellco Partnership d/b/a Verizon Wireless,
et al., Case No. 2:22-cv-04621, in the U.S. District Court for the
District of New Jersey.[GN]

WALMART STORES: Lisowski Suit Dismissal With Prejudice Affirmed
---------------------------------------------------------------
In the case, CHRISTOPHER LISOWSKI, on behalf of himself and all
others similarly situated, Appellant v. WALMART STORES, INC., Case
No. 21-2501 (3d Cir.), the U.S. Court of Appeals for the Third
Circuit affirms the District Court's denial of Lisowski's motion to
remand and dismissal of the complaint with prejudice.

I. Introduction

Mr. Lisowski purchased two 6-packs of 5-Hour Energy on separate
occasions. Walmart charged him a 7% state and local sales tax of
$1.88. Aggrieved by the monetary loss of approximately two dollars,
Lisowski filed a putative class action in state court, alleging
that 5-Hour Energy drinks are "dietary supplements" exempt from
sales tax under Pennsylvania law. His claims for conversion,
constructive trust, and deceptive trade practices all stem from his
belief that Walmart knowingly took this charge to profit from the
commission it receives for collecting sales tax. Walmart removed
the suit under the Class Action Fairness Act because the alleged
damages totaled more than $5 million.

Mr. Lisowski filed a motion to remand, arguing that the Tax
Injunction Act ("TIA") and principles of comity required remand.
The District Court determined that the TIA did not preclude
jurisdiction because Lisowski, "if successful, would receive
damages from a private-party defendant." It then dismissed the
complaint for failure to state a claim under Rule 12(b)(6).
Lisowski appeals from the denial of remand and the dismissal of the
complaint.

II. Discussion

A.

The TIA states that "district courts will not enjoin, suspend or
restrain the assessment, levy or collection of any tax under State
law where a plain, speedy and efficient remedy may be had in the
courts of such State." The prototypical TIA case concerns charges
that must be characterized as either a fee or a tax. Alternatively,
they involve charges that are clearly taxes whose validity is being
challenged.

But in the case, the issue is whether the $1.88 charged by Walmart
is a tax at all. Our jurisdiction turns on that issue. If 5-Hour
Energy is taxable, then Walmart's charge is unambiguously a tax,
and we lack jurisdiction to enjoin its collection. If it is not
taxable, then Walmart's charge is merely a fraudulent charge that
it labeled as a tax, and the Third Circuit does have jurisdiction.
Lisowski argues that reaching the merits of whether an item is
taxable or not falls under the scope of the Tax Injunction Act or,
alternatively, is barred by the principles of comity due to its
potential to interfere with the state tax system.

But Lisowski's arguments cut against his own complaint. The
complaint alleges that the $1.88 is merely an improper charge that
has been fraudulently labeled as a tax. Nonetheless, he claims that
his suit must be remanded under the TIA because enjoining the
collection of this charge would prevent money from reaching
Pennsylvania's coffers. But assuming Lisowski's allegations are
true, Pennsylvania has no interest in collecting that money at all.
And if Pennsylvania has determined that 5-Hour Energy is not
taxable, Walmart does not have the power to impose a tax, even if
it labels it on its receipts.

Undeterred by the limitations of his own complaint, Lisowski argues
that if Walmart denies the allegations against it, then the court
will be required to "wade into the tax regulation waters," but that
if Walmart admits it violated Pennsylvania tax law, then an
injunction would be appropriate. His argument requires that
Walmart's charge is a tax when convenient, and not a tax when
inconvenient.

The Third Circuit rejects Lisowski's "heads I win-tails you lose"
argument. Walmart need not admit it violated Pennsylvania tax law,
nor was the District Court required to determine if 5-Hour Energy
was taxable. Instead, the District Court merely held that the facts
alleged in the notice of removal did not implicate the Tax
Injunction Act. Lisowski's claims rest solely on Walmart's
allegedly improper collection of a charge that it was not
authorized to take. And the mere potential for Walmart to
eventually raise a tax-based defense did not strip the District
Court of jurisdiction. Because Lisowski merely seeks to enjoin
Walmart from charging an excess purchase price, the Third Circuit
affirms the District Court's denial of remand based on the TIA.

Alternatively, Lisowski argues that principles of comity require a
remand. It is well established that federal courts have a
"virtually unflagging obligation to exercise the jurisdiction given
them." Thus, "abstention from the exercise of federal jurisdiction
is the exception, not the rule." Comity is a discretionary
doctrine, so the Third Circuit reviews the District Court's denial
of remand for abuse of discretion.

The Third Circuit has already established that the TIA does not
apply to Lisowski's claims for injunctive relief, so it makes
little sense to apply comity to his claims for damages. Lisowski is
correct, however, that the District Court could someday be faced
with the issue of deciding whether 5-Hour Energy is taxable, thus
risking the possibility of enjoining a tax. And courts should be
hesitant when "entertaining claims for relief that risk disrupting
state tax administration." But the District Court has ample tools
to manage this case without abstaining from the outset. And given
the ultimate dismissal of this case without reference to the
taxable status of 5-Hour Energy, "there is nothing unique, complex,
or particularly tax-centric about the case."

The District Court did not abuse its discretion in determining that
the mere potential for a tax-based defense to arise in the future
did not warrant setting aside its "virtually unflagging obligation"
to hear cases before it. So, the Third Circuit affirms the District
Court's denial of remand.

B.

Lisowski raised common law claims and a statutory claim under the
Pennsylvania Unfair Trade Practice and Consumer Protection Law
("UTPCPL"). After denying Lisowski's motion to remand, the District
Court dismissed all other claims under Rule 12(b)(6). The Third
Circuit affirms, albeit on different grounds.

The Third Circuit finds that Lisowski has failed to allege
reliance, or any facts supporting justifiable reliance, in his
complaint. There is no indication that Lisowski purchased the
5-Hour Energy under the assumption that it was tax free. And there
is no indication that Walmart's conduct or representations would
lead a reasonable consumer to assume that 5-Hour Energy was tax
free. In fact, Lisowski's allegations show that he was charged a
sales tax of $.94 for his first purchase of 5-Hour Energy and that
he nonetheless purchased another 5-Hour Energy, tax
notwithstanding. So, the Third Circuit affirms the dismissal of
Lisowski's UTPCPL claim for failure to allege justifiable
reliance.

The Third Circuit also finds that tather than launch a putative
class action, Lisowski could have sought a simple refund from the
Pennsylvania Department of Revenue. In fact, Lisowski alleged that
another purchaser of 5-Hour Energy petitioned for a refund and was
compensated $4.51. That refund would fully compensate him for any
alleged harm and would thus be constitutionally adequate. So,
Lisowski's common law claims are barred by the existence of a
statutory refund mechanism that is available to him.

C.

Mr. Lisowski contends that the District Court erred in dismissing
his complaint with prejudice. But Lisowski "did not ask the
District Court for leave to amend his complaint, so he can hardly
fault the Court for not granting relief he never requested." As the
Third Circuit has noted, district courts do not have a duty to "sua
sponte grant leave to amend before dismissing a complaint for
failure to state a claim."

III. Disposition

For these reasons, the Third Circuit affirms the District Court's
denial of remand and dismissal of the complaint with prejudice
under Rule 12(b)(6).

A full-text copy of the Court's July 15, 2022 Opinion is available
at https://tinyurl.com/4pdspnvr from Leagle.com.


WELLS FARGO: District Court Grants Bid to Dismiss Hudson Class Suit
-------------------------------------------------------------------
In the case, KURT L. HUDSON, Plaintiff v. WELLS FARGO & COMPANY, et
al., Defendants, Case No. 21-cv-08296-HSG (N.D. Cal.), Judge
Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern
District of California issued an order:

    (i) granting the Defendants' motion to dismiss; and
   (ii) denying their motion to strike.

I. Background

Pro se Plaintiff Hudson brings the putative class action against
Defendants Wells Fargo Bank, N.A. (the "Bank") and Wells Fargo &
Co. (the "Holding Company").

According to the complaint, the Plaintiff, an Illinois resident,
obtained a mortgage loan from the Bank in 2005 for a second home in
Florida. Due to various hardships brought on by the 2008 recession,
Plaintiff defaulted on his monthly mortgage payments. The Plaintiff
applied to the Bank for a loan modification under the Home
Affordable Modification Program ("HAMP") and the National Mortgage
Settlement, which Congress passed to keep people struggling to pay
their mortgage in their homes. The Bank denied the modification
application.

The Plaintiff alleges that the Bank failed to fulfill its fiduciary
duties because it did not disclose errors in its loan medication
software. He suggests that these errors led to the wrongful denial
of his HAMP modification and foreclosure on his property in 2015.

In its reply brief, the Bank acknowledges that it publicly
disclosed the errors in its loan modification software, which
ultimately resulted in denials for certain borrowers. The Bank
voluntarily initiated a remediation program and sent letters, some
including checks, and offered mediation to impacted borrowers.
However, the Plaintiff admits he was not among those who the Bank
contacted to participate in the remediation program. Nevertheless,
he alleges that the Bank denied his loan modification due to its
faulty software program.

Based on these facts, the Plaintiff brings nine causes of action,
on behalf of himself and a putative class, against the Bank and the
Holding Company: (1) "Negligent and Gross Negligence Breach of
Contract," (2) "Violation Of California's Unfair Competition Law,"
(3) "Violation Of Florida's Deceptive And Unfair Trade Practices
Act," (4) "Violation Of Florida's Unauthorized Practice of Law
Statute," (5) "Breach of Fiduciary Duty," (6) "Fraudulent
Concealment," (7) "Fraud On The Florida State And Appellate
Courts," (8) "Concealment Fraud And The California and Iowa Federal
Courts," and (9) "Revival of Plaintiff's and SubClass Members' Rico
Complaint."

The Plaintiff contends that he and other putative class members
suffered injury, damage, and loss, and seeks punitive damages and
reasonable attorneys' fees and costs. The Defendants now move to
dismiss the Plaintiff's complaint. They also move to strike the
excess pages of Plaintiff's overlong opposition brief.

The Court held a hearing on April 28, 2022.

II. Discussion

A. Class Allegations

The Plaintiff claims to represent a class of approximately
1,152,000 members as part of his lawsuit. However, the Bank
correctly points out that "pro se plaintiffs cannot serve as
putative class representatives."

Judge Gilliam notes that the Plaintiff has expressed his intentions
to obtain counsel. In his opposition brief, he said that he
anticipated finding counsel by February 2022. As of the date of the
Order, however, the Plaintiff still is not represented by counsel.
Because the Plaintiff may only bring the case on behalf of himself,
Judge Gilliam grants the motion to dismiss claims brought on behalf
of a putative class, without prejudice to the reassertion of those
claims if the Plaintiff retains counsel.

B. Wells Fargo Bank

As a threshold matter, the Bank asserts that the Court lacks
personal jurisdiction over it. A plaintiff may invoke either
general or specific personal jurisdiction. "General jurisdiction
requires affiliations so continuous and systematic as to render the
foreign corporation essentially at home in the forum State, i.e.,
comparable to a domestic enterprise in that State." Specific
jurisdiction, on the other hand, exists if: (1) the defendant has
performed some act or consummated some transaction with the forum
by which it purposefully availed itself of the privilege of
conducting business in California; (2) the plaintiff's claims arise
out of or result from the defendant's forum-related activities; and
(3) the exercise of jurisdiction is reasonable.

In the case, the Plaintiff acknowledges that the Bank is
headquartered in South Dakota. He also appears to recognize that
the alleged conduct at issue in the case occurred outside of
California: The Plaintiff is an Illinois resident, his house is
located in Florida, the Bank's mortgage servicing business is
located in Iowa, and the Bank's computer servers are located in
Florida. The Plaintiff nevertheless asserts that the Court has
personal jurisdiction over the Bank because the Defendants "conduct
substantial business" in California. Aside from this conclusory
sentence, however, he offers no factual allegations to support this
contention. The Plaintiff simply notes that "the Bank has serviced
hundreds of mortgages for properties located in California." Even
if true, the Plaintiff does not explain how such conduct somehow
renders the Bank at home in California for purposes of general
jurisdiction. And to the extent that he suggests such contacts may
suffice for specific jurisdiction, this is not a putative class
action. The Plaintiff's claims in the case do not arise out of the
Bank's mortgage services for any California properties. Rather, he
is an Illinois resident raising claims concerning a mortgage on a
Florida property.

Judge Gilliam finds that the Plaintiff has not presented sufficient
information to show that the Court has personal jurisdiction over
the Bank, and grants the motion to dismiss on this basis.

C. Holding Company

Unlike the Bank, the Holding Company's principal place of business
is California. However, the Holding Company argues that the
Plaintiff has failed to allege that it is responsible for any of
the alleged conduct in the case. Critically, the Plaintiff alleges
that the Bank -- not the Holding Company -- serviced his mortgage.
He confirmed these allegations in his opposition brief, stating
that "Wells Fargo Bank foreclosed on the Plaintiff's first
mortgage." However, throughout the complaint, the Plaintiff
generally treats the Holding Company and the Bank as the same
entity, referring to them collectively as "Wells Fargo." He notes
that the Bank is a subsidiary of the Holding Company, and appears
to suggest that as the parent company, the Holding Company should
also be held responsible.

Judge Gilliam holds that a parent company is not automatically
liable for the acts of its subsidiaries. The Plaintiff has failed
to provide sufficient factual support for his contention that the
Holding Company should be held liable for the Bank's alleged
conduct. He alleges that the Holding Company "exercises control
over the Bank's management team and has the authority to hire and
fire the Bank's managers, set company policies and establish the
Bank's business strategy." This is not, on its own, sufficient to
establish alter ego liability.

Perhaps recognizing the difficulty of establishing alter ego
liability, the Plaintiff suggests in his opposition brief that the
Holding Company also participated in the wrongdoing. But he does
not explain in the complaint what misconduct the Holding Company
allegedly engaged in. Because the Plaintiff has not sufficiently
alleged that the Holding Company is liable for the Bank's
misconduct or that it engaged in any misconduct itself, Judge
Gilliam grants the motion to dismiss on this basis.

D. Motion to Strike

In a separate motion, the Defendants also ask the Court to strike
the excess pages of the Plaintiff's opposition to the motions to
dismiss. The Plaintiff responds that he went over the page limit
inadvertently, due to vision problems. While the Plaintiff clearly
exceeded the page limit in violation of the local rules, Judge
Gilliam denies the Defendants' motion to strike. He cautions the
Plaintiff that notwithstanding his pro se status, he will be
expected to comply with all applicable federal rules, civil local
rules, and standing orders in future.

III. Conclusion

Accordingly, Judge Gilliam grants the motions to dismiss and denies
the motion to strike. Despite the deficiencies he identified, Judge
Gilliam cannot say at this stage that amending the complaint would
be futile. Therefore, the Plaintiff will file any amended complaint
by no later than Aug. 12, 2022. Failure to file an amended
complaint by this deadline may result in the dismissal of the
action in its entirety without further leave to amend. In addition,
the Plaintiff's amended complaint will be dismissed if he does not
correct the deficiencies the Court has identified in the Order.

Judge Gilliam notes that the Legal Help Center at both the San
Francisco and Oakland Federal Courthouses provides free information
and limited-scope legal advice to pro se litigants in civil cases.
Services are provided by appointment only. An appointment may be
scheduled by calling (415) 782-8982 or emailing FedPro@sfbar.org.

A full-text copy of the Court's July 13, 2022 Order is available at
https://tinyurl.com/73w5x7kc from Leagle.com.


WEXFORD HEALTH: Parties Seek to Defer Ruling on Time Extension Bid
------------------------------------------------------------------
In the class action lawsuit captioned as COURTNEY MILLIGAN,
individually and on behalf of all others similarly situated, v.
WEXFORD HEALTH SOURCES, INC., Case No. 2:21-cv-01411-RJC (W.D.
Pa.), the Parties seek to defer ruling on plaintiff's motion for
extension of time to file motion for class certification.

Milligan filed a Motion to Defer Ruling on June 30, 2022, extending
the due date for Milligan's Reply on her Motion for Extension until
today, July 7, 2022, to allow the parties more time to discuss
terms of the stipulation.

The parties conferred on July 6, 2022 and are making progress
toward a potential agreement on conditional certification. The
parties would request additional time to discuss an agreement on
conditional certification which would ultimately result in the
withdrawal of Milligan's Motion for Extension.

If an agreement can be reached, the parties anticipate filing a new
proposed scheduling order by July 22, 2022. Accordingly, the
parties request the Court continue to defer a determination of
Milligan's motion and allow them an additional two weeks to attempt
to reach an agreement on conditional class certification.

Wexford Health is one of the nation's premier correctional health
care companies.

A copy of the Parties' motion dated July 7, 2022 is available from
PacerMonitor.com at https://bit.ly/3PkXx0J at no extra charge.[CC]

The Plaintiff is represented by:

          Andrew W. Dunlap, Esq.
          Michael A. Josephson, Esq.
          Alyssa White, Esq.
          JOSEPHSON DUNLAP LLP
          11 Greenway Plaza, Suite 3050
          Houston, TX 77046
          Telephone: 713-352-1100
          Facsimile: 713-352-3300
          E-mail: mjosephson@mybackwages.com
                  adunlap@mybackwages.com
                  awhite@mybackwages.com

               - and -

          Richard J. (Rex) Burch
          BRUCKNER BURCH PLLC
          11 Greenway Plaza, Suite 3025
          Houston, TX 77046
          Telephone: 713-877-8788
          Facsimile: 713-877-8065
          E-mail: rburch@brucknerburch.com

The Defendant is represented by:

          Kimberly S. Moore, Esq.
          CLARK HILL PLC
          2600 Dallas Parkway, Suite 600
          Frisco, TX 75034
          Telephone: (469) 287-3922
          Facsimile: (469) 227-6563
          E-mail: ksmoore@clarkhill.com

               - and -

          Amy H. McCrossen
          One Oxford Centre
          301 Grant Street, 14th Floor
          Pittsburgh, PA 15219
          Telephone: (412) 394.7743
          Facsimile: (412) 394 2555


                            *********

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 ***