/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220801.mbx C L A S S A C T I O N R E P O R T E R Monday, August 1, 2022, Vol. 24, No. 146 Headlines 1-800 CONTACTS: Conneran Sues Over Illegal Sales Calls 24 CAPITAL: Peters Broadcast Seeks to Certify Class Action AARON CHRYSLER: Trovato Suit Removed to C.D. California ADAPTHEALTH CORP: First Scheduling Order Entered in DCERS Suit AGTAC SERVICES: Gutierrez Files Suit in Cal. Super. Ct. ALLY FINANCIAL INC: Hobbs Files ADA Suit in S.D. New York ALTABA INC: Ninth Circuit OKs Settlement of CA Consumer Litigation AMAZON.COM INC: Annuity Fund Sues Over False Public Statements AMERICA & BEYOND: Slade Files ADA Suit in S.D. New York AMERICAN AIRLINES: Seeks Leave to File Sur-Reply in Solis Suit APOLLO GLOBAL: McEvoy Appeals Denial of Bid to Alter Judgment APTIVE ENVIRONMENTAL: Barnett Suit Removed to S.D. Florida ASAP TRANS: Sam Malone Sues Over Insufficient Lease Payments ASM GLOBAL: Fails to Pay Proper Wages, Liddell Suit Says AVANTUS LLC: Seeks Leave to File Sur-reply in Martinez Suit BAKER HUGHES: Providence Shareholder Suit Ongoing BAKER HUGHES: Shareholder Suit Ongoing in Delaware BANK OF AMERICA: Aiwohi Files RICO Suit in D. Hawaii BMO HARRIS BANK: Hopper Suit Removed to D. Minnesota BP EXPLORATION: Court Excludes Dr. Cook's Testimony in Peairs Suit CARVANA CO: Vestal Sues Over Unfair Voting Power Provisions COLGATE-PALMOLIVE CO: Class Cert. Bid Hearing Extended to August 1 COMMUNITY MEDICAL: Hinds Ransomware Suit Removed to E.D. Calif. COMPETITIVE SOCIALIZING: Rodriguez Files ADA Suit in E.D. New York CONAGRA BRANDS: Dahl Securities Suit Dismissed CONAGRA BRANDS: Faces Briseno Mislabeling Suit in California Court CONAGRA BRANDS: Faces Product Liability Suit CONAGRA BRANDS: Negrete Labor Suit Settled in California Court CONSUMER ADJUSTMENT: Opposition to Class Cert Bid Due August 19 CORSAIR GAMING: Court Narrows Claims in McKinney's 1st Amended Suit CRABTREE & EVELYN: Toro Files ADA Suit in S.D. New York CRUSH CITY: Morgan's Bid for Rule 23 Class Certification Nixed CVS HEALTH: Mier Appeals Renewed Class Cert. Bid Denial to 9th Cir. DAVID'S BRIDAL: Iskhakova Files ADA Suit in E.D. New York DD DIGITAL MEDIA: Cromitie Files ADA Suit in S.D. New York DEARBORN BISTRO: Baldwin Files FLSA Suit in E.D. Michigan DEEJAYZOO LLC: Slade Files ADA Suit in S.D. New York DETROIT EDISON: Amended Bid to Certify Settlement Class OK'd DIALAMERICA MARKETING: Blanco Suit Removed to S.D. California DIGNITY HEALTH: Grant of Summary Adjudication in Sarun Suit Upheld DIVERSIFIED ENERGY: Faces McEvoy Suit Over Abandoned Gas Wells DMD MANAGEMENT: Spencer's Bid for Conditional Certification OK'd DOORDASH INC: Lawson Sues Over Hidden Delivery Fee Charges EKSTER INC: Rodriguez Files ADA Suit in E.D. New York ELEPHANT INSURANCE: Bias Files Suit Over Unauthorized Data Access EOG RESOURCES: Wake Energy's Bid to Certify Class Denied as Moot EQUIFAX INC: Faces Data Breach Suits in Canada FAST PACE: Hutchinson Sues Over Healthcare Staff's Unpaid Wages FLAGSTAR BANCORP: Fails to Protect Customers' Info, Perkaj Says FORD MOTOR: Michigan Court Allows Arbitration in Cunningham Suit FORD MOTOR: Simmons Seeks Reconsideration of Class Cert Order FRANKLIN MINT: Du Brey Sues Over Illegal NSF and OD Fee Charges FREEDOM MORTGAGE: Bernasconi Sues Over Unsolicited Sales Calls FUNNY FACE BAKERY: Martinez Files ADA Suit in E.D. New York GAME ON SPORTS: Toro Files ADA Suit in S.D. New York GAMEOLOGY LLC: Toro Files ADA Suit in S.D. New York GEICO CASUALTY: Bid to Hold Class Cert Order in Abeyance Filed GETIR US: Fails to Pay Packers Proper Wages, Brooks Says GIFTROCKET INC: Gracie Baked Sues Over Unauthorized Gift Cards GLOBAL MOTIVATION: Muccio Sues Over Unsolicited Text Messages GRAPEVINE OF NORTH CAROLINA: FLSA Collective Action Sought GREEN POGO: Third Circuit Reverses Order Dismissing Adam Class Suit GREENSKY MANAGEMENT: Wright Must File Class Cert Bid by Sept 19 GREENWICH HOTEL: Hanyzkiewicz Files ADA Suit in E.D. New York GUDRUN SJODEN US: Iskhakova Files ADA Suit in E.D. New York HANDI-FOIL CORP: Osdoby Files Suit in E.D. New York HEALTH CARE: Bids for Summary Judgment in Homeland Suit Granted HOME DEPOT: Filing of Class Status Bids Extended to Oct. 21 IQVIA INC: Revised Scheduling Order Entered in Lyngaas Suit JOHNSON & JOHNSON: More Time to File Class Cert Bid Sought KADENCE INTERNATIONAL: Scheduling Order Entered Brown Class Suit KYODAI SUSHI: Sparks Seeks Initial Approval of Class Settlement LEWIS & CLARK COUNTY, MT: Class Cert. Order in Rogers Suit Affirmed LEXINGTON LAW: Moore TCPA Suit Seeks to Certify Class LIBERTY ONE: Ramirez Sues Over Unpaid Wages, Discrimination MARICOPA COUNTY, AZ: Houston Seeks to Certify Class Action MATRIX ABSENCE: Samantha Seeks to Certify Rule 23 Class MD NIGERIA: Calicdan Appeals FLSA Case Dismissal Ruling MOUNTAIN WEST: Pretrial Preparation & Trial Vacated in Drange NASONCARE LLC: Anderson Seeks to Certify FLSA Collective Action NAT'L ASSOCIATION: Court Denies Arbitration Bids in Burnett Suit NATIONAL MENTOR: Hagans, et al., Seek to Certify Collective Action NORDICTRACK INC: Larsen Sues Over Cancelled Fitness Live Classes NVIDIA CORP: Production of Docs in Westland Suit Upheld in Part PAPA JOHN'S: Fischer Seeks to Certify Class of Delivery Drivers PERDUE FARMS: Court Denies in Part Bids to Dismiss Jien Class Suit PHARMAVITE LLC: Whitaker Sues Over Mislabeled Vitamin C Products PHARMAVITE LLC: Wittman Sues Over Mislabeled Vitamin C Products PROAMPAC INTERMEDIATE: Parties Seek to Certify FLSA Collective PRUDENT FIDUCIARY: Second Scheduling Order Entered in Ahrendsen RADICALMEDIA LLC: Fails to Pay Proper Wages, Shinjo Suit Says RECON OILFIELD: Filing of Response to Conditional Cert Extended RECOVCO MORTGAGE: Agudelo Sues Over Unlawful Labor Practices SHIELDS HEALTH: Komar Balks at Unprotected Patients' Personal Info SYNCHRONY FINANCIAL: Court Affirms Dismissal of Securities Suit TAKEDA PHARMACEUTICALS: Parties Seeks Class Cert Briefing Order TARGET CORP: Sexton Suit Remanded to Milwaukee County Circuit Court TENANTREPORTS.COM LLC: Scheduling Order Entered in McKey Suit TRANS UNION: $9MM Class Settlement in Ramirez Suit Wins Prelim. OK TREK RETAIL: Joint Stipulation to Continue Discovery Resubmitted UNITED STATES: Court Denies Cross-Bid for Judgment in Lohmann Suit USA: Steele Can't Compel Answer to Third Set of Interrogatories VERIZON WIRELESS: Can Compel Arbitration in Brady Class Suit WEST CORPORATION: Settlement Class in Ramsey Initially Certified WEST VIRGINIA UNIVERSITY: Faces Ware Labor Suit Over Kronos Hack WHOLE FOODS: Revised Case Scheduling Order Entered in Kellman XEROX CORP: Filing of Class Status Bid Extended to Nov. 28 ********* 1-800 CONTACTS: Conneran Sues Over Illegal Sales Calls ------------------------------------------------------ KEVIN CONNERAN, individually and on behalf of all others similarly situated, Plaintiff v. 1-800 CONTACTS, INC., Defendant, Case No. CACE-22-009965 (Fla. Cir., 17th Judicial, Broward Cty., July 8, 2022) is a class action brought by the Plaintiff under the Florida Telephone Solicitation Act against the Defendant for engaging in telephonic sales calls without having secured prior express written consent. According to the complaint, on July 1, 2021, the Defendant made, or knowingly allowed to be made, a "telephonic sales call" as defined by Fla. Stat. Section 501.059(1)G) to Plaintiff's telephone number. The purpose of Defendant's telephonic sales calls was to solicit the sale of consumer goods and/or services, says the suit. Through this action, the Plaintiff seeks an injunction and statutory damages on behalf of Plaintiff individually and the Class members, and any other available legal or equitable remedies resulting from the unlawful actions of Defendant, the suit added. 1-800 Contacts, Inc. is an American contact lens retailer.[BN] The Plaintiff is represented by: Benjamin W. Raslavich, Esq. KUHN RASLA VICH, P.A. 2110 West Platt Street Tampa, FL 33606 Telephone: (813) 422-7782 Facsimile: (813) 422-7783 E-mail: ben@theKRfirm.com 24 CAPITAL: Peters Broadcast Seeks to Certify Class Action ---------------------------------------------------------- In the class action lawsuit captioned as PETERS BROADCAST ENGINEERING v. 24 CAPITAL FUNDING, LLC and JASON SANKOV, Case No. 1:22-cv-00236-HAB-SLC (N.D. Ind.), the Plaintiff asks the Court to enter an order: 1. certifying that the action may be maintained and proceed as a class action against defendants; 2. appointing the Proposed Class Representative as class representative; and 3. appointing Percy Squire, as Counsel for the Class and as Liaison Counsel for the Class. The Plaintiff brings this action as a Class Action under Rules 23(a), (b)(1), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure on behalf of all persons who were told by 24 Capital, LLC their merchant cash advance was against receivables and that borrowers had New York contacts. The Class consists of thousands of persons located throughout the United States, thus, the members of the Class are so numerous that joinder of all Class members is impracticable. The exact number of Class members is not presently known to plaintiff, but can readily be determined by appropriate discovery, the lawsuit says. Peters Broadcast has over 30 years experience in broadcast and RF engineering. 24 Capital is a dynamic firm that specializes in offering a wide range of cash advances and other financial services globally. A copy of the Plaintiff's motion dated July 15, 2022 is available from PacerMonitor.com at https://bit.ly/3bcrO2Y at no extra charge.[CC] The Plaintiff is represented by: Percy Squire, Esq. Percy Squire Co., LLC 341 S. Third Street, Suite 10 Columbus, OH 43215 Telephone: 614-224-6528 E-mail: psquire@sp-lawfirm.com AARON CHRYSLER: Trovato Suit Removed to C.D. California ------------------------------------------------------- The case styled as Christine Trovato, an inidividual, on behalf of herself and all others similarly situated v. Aaron Chrysler of Norco, Fiat Chrysler Automobiles FCA US, LLC, Does 1-50, inclusive, FCA US LLC, Case No. CVRI2202212 was removed from the Superior Court of California County of Riverside, to the U.S. District Court for the Central District of California on July 19, 2022. The District Court Clerk assigned Case No. 5:22-cv-01267-ODW-SP to the proceeding. The nature of suit is stated as Other Contract for Breach of Contract. Aaron Chrysler of Norco -- https://www.aaroncdjr.com/ -- is a Chrysler dealer in Norco, California.[BN] The Plaintiff is represented by: Daniel J Mulligan, Esq. JENKINS MULLIGAN AND GABRIEL LLP 4079 Governor Drive 5015 San Diego, CA 92122 Phone: (858) 529-2372 Email: dan@jmglawoffices.com The Defendants are represented by: Alexander M Carnevale, Esq. THOMPSON COBURN 10100 Santa Monica Boulevard Suite 500 Los Angeles, CA 90067 Phone: (310) 282-2500 Fax: (310) 282-2501 Email: acarnevale@thompsoncoburn.com ADAPTHEALTH CORP: First Scheduling Order Entered in DCERS Suit -------------------------------------------------------------- In the class action lawsuit captioned as DELAWARE COUNTY EMPLOYEES RETIREMENT SYSTEM, et al., v. ADAPTHEALTH CORP. F/K/A DFB HEALTHCARE ACQUISITON CORP., Case No. 2:21-cv-03382-HB (E.D. Pa.), the Hon. Judge Harvey Bartle III entered a first scheduling order as follows: 1. The Plaintiffs shall file and serve their motion for class certification, together with supporting expert report and supporting brief, on or before July 28, 2022. 2. All class certification discovery shall proceed forthwith and continue in such a manner as will assure that all requests for, and responses to, discovery will be served, noticed, and completed by December 30, 2022. 3. The Defendants shall file and serve their brief in opposition to class certification, together with any expert report, on or before January 20, 2023. 4. The Plaintiffs may thereafter depose defendants' expert. 5. The Plaintiffs shall file and serve their reply brief in support of class certification on or before March 10, 2023. 6. All non-deposition discovery as it relates to the merits shall proceed at this time. AdaptHealth is a provider of home healthcare equipment and related services. A copy of the Court's order dated July 15, 2022 is available from PacerMonitor.com at https://bit.ly/3oywKlK at no extra charge.[CC] AGTAC SERVICES: Gutierrez Files Suit in Cal. Super. Ct. ------------------------------------------------------- A class action lawsuit has been filed against Agtac Services, LLC, et al. The case is styled as Jason Gutierrez and Louie Yliz, on behalf of themselves and others similarly situated v. Agtac Services, LLC, Case No. STK-CV-UOE-2022-0006123 (Cal. Super. Ct., San Joaquin Cty., July 19, 2022). The case type is stated as "Unlimited Civil Other Employment." Agtac Services -- https://agtac.com/ -- offer businesses with complete facility services including janitorial and maintenance professionals who are the best in the business.[BN] The Plaintiffs are represented by: Roman Shkodnik, Esq. DAVID YEREMIAN & ASSOCIATES, INC. 2540 Foothill Blvd., Ste. 201 La Crescenta, CA 91214-4583 Phone: 818-230-8380 Fax: 818-230-0308 Email: roman@yeremianlaw.com ALLY FINANCIAL INC: Hobbs Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Ally Financial Inc. The case is styled as Alexandra Hobbs, on behalf of herself and all other persons similarly situated v. Ally Financial Inc., Case No. 1:22-cv-06138 (S.D.N.Y., July 19, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ally Financial -- https://www.ally.com/ -- is a bank holding company organized in Delaware and headquartered in Detroit, Michigan.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal ALTABA INC: Ninth Circuit OKs Settlement of CA Consumer Litigation ------------------------------------------------------------------ Altaba Inc. disclosed in its Form 8-K, filed with the Securities and Exchange Commission on July 21, 2022, that on June 27, 2022, the United States Court of Appeals for the Ninth Circuit released an order affirming the settlement for a federal consumer class action brought in the United States District Court for the Northern District Court of California. On July 19, 2022, the Ninth Circuit issued a mandate to close the US Class Action. Altaba Inc. was a non-diversified, closed-end management investment company based in New York City that was formed from the remains of Yahoo! Inc. after Verizon acquired Yahoo's Internet business. AMAZON.COM INC: Annuity Fund Sues Over False Public Statements -------------------------------------------------------------- DETECTIVES ENDOWMENT ASSOCIATION ANNUITY FUND, individually and on behalf of all others similarly situated, Plaintiff v. AMAZON.COM, INC., ANDREW R. JASSY, BRIAN T. OLSAVSKY, and DAVID FILDES, Defendants, Case No. 2:22-cv-00950 (W.D. Wash., July 8, 2022) is a class action brought by the Plaintiff, on behalf of persons and entities that acquired Amazon common stock between July 30, 2021 and April 28, 2022, inclusive, against the Defendants Amazon, President and Chief Executive Officer Andrew R. Jassy, and Chief Financial Officer and Senior Vice President Brian T. Olsavsky, and its Head of Investor Relations, David Fildes, arising from the Defendants' violations of Sections 10(b) and 20 (a) of the Securities Exchange Act of 1934. Defendant Amazon has multiple business lines, including inter alia, online retail, cloud computing, data, and streaming services and distribution, inventory and supply, chain management, and fulfillment and logistics. It maintains its own warehouse, distribution, and data centers. By the end of 2019, Amazon's distribution, warehouse, and data center space covered approximately 192 million square feet. Thereafter, the Company engaged in a massive expansion spree. As a result, it expanded its data and fulfillment centers until they covered approximately 387.1 million square feet by the end of 2021, effectively doubling in size in two years, says the suit. Throughout the Class Period, the Defendants allegedly made materially false and misleading statements regarding Amazon's business, operations, and policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Amazon was engaged in an overly aggressive expansion of its warehouse and fulfillment network; (ii) its over expansion was not appropriately controlled or planned; (iii) such over expansion was not supported by demand; (iv) the over-expansion had created an economic burden on the Company that exposed Amazon to billions in unnecessary "incremental costs" and; (v) would force the Company to engage in large scale "cost efficiency" procedures and steps to unburden itself from the weight of its self-inflicted economic yoke, the suit asserts. The Defendants' false and misleading statements and material omissions artificially inflated trading price of its stock, which trading price substantially declined when those wrongful acts and omissions were disclosed to investors, causing significant losses and damages to Plaintiff and the members of the Class, alleges the suit.[BN] The Plaintiff is represented by: Kim D. Stephens, Esq. Cecily C. Jordan, Esq. TOUSLEY BRAIN STEPHENS PLLC 1200 Fifth Avenue, Suite 1700 Seattle, WA 98101 Telephone: (206) 682-5600 Facsimile: (206) 682-2992 E-mail: kstephens@tousley.com cjordan@tousley.com - and - Stephen R. Basser, Esq. Samuel M. Ward, Esq. BARRACK, RODOS & BACINE 600 West Broadway, Suite 900 San Diego, CA 92101 Telephone: (619) 230-0800 Facsimile: (619) 230-1874 E-mail: sbasser@barrack.com sward@barrack.com - and - Jeffrey A. Barrack, Esq. BARRACK, RODOS & BACINE 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Telephone: (215) 963-0600 Facsimile: (215) 963-0838 E-mail: jbarrack@barrack.com AMERICA & BEYOND: Slade Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against America & Beyond, LLC. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. America & Beyond, LLC, Case No. 1:22-cv-06111 (S.D.N.Y., July 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. America & Beyond -- https://www.americaandbeyond.com/ -- is an artisanal boho clothing label offering handcrafted bohemian fashion made for the creative, free-spirited woman.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com AMERICAN AIRLINES: Seeks Leave to File Sur-Reply in Solis Suit -------------------------------------------------------------- In the class action lawsuit captioned as EVA SOLIS, individually and on behalf of all others similarly situated, v. AMERICAN AIRLINES, INC., and DOES 1-100, inclusive, Case No. 2:19-cv-10181-PSG-AFM (C.D. Cal.), the Defendant seeks leave to file a sur-reply to the Plaintiff Jasmin Pradia's Reply in Support of her Motion for Class Certification, so that American may address numerous false and misleading statements, as well as Plaintiff's argument regarding American's expert, Dr. Ethan Singer, PhD. American Airlines is a major US-based airline headquartered in Fort Worth, Texas, within the Dallas–Fort Worth metroplex. It is the world's largest airline when measured by fleet size, scheduled passengers carried, and revenue passenger mile. A copy of the Defendant's motion dated July 15, 2022 is available from PacerMonitor.com at https://bit.ly/3PUzTrF at no extra charge.[CC] The Defendant is represented by: Adam P. Kohsweeney, Esq. Kelly S. Wood, Esq. Allan W. Gustin, Esq. O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: (415) 984-8912 Facsimile: (415) 984-8701 E-mail: akohsweeney@omm.com kwood@omm.com agustin@omm.com APOLLO GLOBAL: McEvoy Appeals Denial of Bid to Alter Judgment -------------------------------------------------------------- Plaintiff Michael McEvoy filed an appeal from a court ruling entered in the lawsuit styled MICHAEL McEVOY, on behalf of himself and others similarly situated, Plaintiff v. APOLLO GLOBAL MANAGEMENT, LLC, a Delaware limited liability company, APOLLO MANAGEMENT VI, L.P., a Delaware limited partnership, and CEVA GROUP, PLC, Defendants, Case No. 3:17-cv-891-TJC-MCR, in the U.S. District Court for the Middle District of Florida, Jacksonville Division. On August 3, 2017, a complaint was filed against AGM, a senior partner of Apollo and a former principal of Apollo by Michael McEvoy on behalf of a purported class of employees of subsidiaries of CEVA Group, LLC ("CEVA Group") who purchased shares in CEVA Investment Limited ("CIL"), the former parent company of CEVA Group. The complaint alleged that the defendants breached fiduciary duties to, and defrauded, the plaintiffs by inducing them to purchase shares in CIL and subsequently participating in a debt restructuring of CEVA Group in which shareholders of CIL did not receive a recovery. On June 29, 2021, Judge Timothy J. Corrigan of the Middle District of Florida denied the Defendants' Joint Motion for Summary Judgment. On July 23, 2021, CEVA Group, PLC filed a joint motion for reconsideration regarding the Summary Judgment order. Michael McEvoy also filed a Second Amended Complaint against Apollo Global Management, LLC, Apollo Management VI, L.P., CEVA Group, PLC with jury demand. On March 10, 2022, Judge Corrigan issued an order granting Defendants' Joint Limited Motion for Reconsideration; vacated the Court's previous Order and replaced it with this Order granting Defendants' Joint Motion for Summary Judgment. On March 11, 2022, judgment was entered for the Defendant pursuant to the Court's Order. On April 7, 2022, Mr. McEvoy filed a motion to alter judgment. However, the court denied the request on May 26, 2022. The Plaintiff is now seeking a review of this ruling. The appellate case is captioned as McEvoy v. Apollo Global Management, LLC, et al., Case No. 22-12081, in the U.S. Court of Appeals for the Eleventh Circuit, filed on June 22, 2022.[BN] Plaintiff MICHAEL McEVOY, on behalf of himself and others similarly situated, is represented by: John D. Webb, Esq. JOHN D. WEBB, P.A. 1662 Stockton Street Jacksonville, FL 32204 Telephone: (904) 803-4686 E-mail: jwebb@jackwebblaw.com APTIVE ENVIRONMENTAL: Barnett Suit Removed to S.D. Florida ---------------------------------------------------------- The case styled as Kip Barnett v. Aptive Environmental LLC, individually and on behalf of all those similarly situated, Case No. CACE22009193 was removed from the 17th Judicial Circuit Court, to the U.S. District Court for the Southern District of Florida on July 18, 2022. The District Court Clerk assigned Case No. 0:22-cv-61342-RS to the proceeding. The nature of suit is stated as Consumer Credit. Aptive Environmental -- https://www.goaptive.com/ -- provides effective pest solutions solutions to protect your home from pests.[BN] The Plaintiff is represented by: Jennifer Gomes Simil, Esq. Jibrael Jarallah Said Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th St., 17th Floor Fort Lauderdale, FL 33301 Phone: (954) 907-1136 Email: jen@jibraellaw.com jibrael@jibraellaw.com The Defendant is represented by: Nelson Camilo Bellido, Esq. ROIG LAWYERS 44 W. Flagler Street, 2nd Floor Miami, FL 33130 Phone: (305) 405-0997 Email: nbellido@roiglawyers.com ASAP TRANS: Sam Malone Sues Over Insufficient Lease Payments ------------------------------------------------------------ SAM MALONE HOT WHEEL LLC and, ZAHIDULLAH RAHMATI individually and on behalf of others similarly situated, Plaintiffs v. ASAP TRANS CORP., Defendant, Case No. 1:22-cv-03572 (N.D. Ill., July 11, 2022) is a class action brought by the Plaintiffs alleging claims under the Truth in Leasing Act, the Illinois Consumer Fraud and Deceptive Business Practices Act, and the Illinois common law of fraud and contract. The Plaintiffs allege that ASAP violated the TILA by paying Malone LLC and Rahmati, significantly less than their equipment leases required for each load that they transported. ASAP promised to pay Plaintiffs and other owner-operator drivers a certain percentage of the price of each load, but ASAP lied to them about that price, so it could pay them less than the lease required. ASAP also violated TILA by not paying interest on owner-operators' escrow deductions, the Plaintiffs assert. ASAP's deception proximately caused Plaintiffs and other Class members to be paid less than the amounts they were owed pursuant to their equipment leases with ASAP, the suit adds. ASAP is a motor carrier licensed with the U.S. Department of Transportation. The Plaintiffs worked for ASAP as an owner-operator for purposes of TILA.[BN] The Plaintiffs are represented by: Christopher J. Wilmes, Esq. Justin Tresnowski, Esq. HUGHES, SOCOL, PIERS, RESNICK & DYM, LTD. Three First National Plaza 70 West Madison Street, Suite 4000 Chicago, IL 60602 Telephone: (312) 580-0100 ASM GLOBAL: Fails to Pay Proper Wages, Liddell Suit Says -------------------------------------------------------- NICOLE LIDDELL, individually and on behalf of all others similarly situated, Plaintiff v. ASM GLOBAL THEATER MANAGEMENT, LLC, a Delaware Limited Liability Company; FAVORITE HEALTHCARE STAFFING, INC., a Kansas Corporation; CHRISTOPHER BRINK, an Individual; and DOES 1-50, inclusive, Defendants, Case No. 22STCV22148 (Cal. Super., Los Angeles Cty., July 8, 2022) is a representative action for recovery of penalties under the Private Attorneys' General Act of 2004, California Labor Code section 2698 et seq. According to the complaint, the Defendants violated various provisions of the California Labor Code and IWC Wage Order. The Defendants' violations include: (1) failure to timely pay all wages owed upon separation of employment; (2) failure to pay minimum wages, including overtime; (3) failure to provide lawful meal periods; (4) failure to authorize and permit rest periods; (5) failure to timely pay wages during employment; (6) failure to provide accurate itemized employee wage statements; (7) failure to reimburse necessary expenses; (8) failure to provide suitable seating; (9) failure to provide safe and healthful place of employment; and (10) failure to keep accurate payroll records, says the suit. The Plaintiff was employed as a salaried employee in the position of Youth Care Worker for Defendants from April 19, 2021 through May 3, 2021. ASM Global Theater Management, LLC is a venue and event management company based in California.[BN] The Plaintiff is represented by: 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 Telephone: James@Jameshawkinsaplc.com Christina@Jameshawkinsaplc.com AVANTUS LLC: Seeks Leave to File Sur-reply in Martinez Suit ----------------------------------------------------------- In the class action lawsuit captioned as MARVEL MARTINEZ, on behalf of himself and all others similarly situated, v. AVANTUS, LLC and XACTUS, LLC, successor in interest to certain assets of AVANTUS, LLC, Case No. 3:20-cv-01772-JCH (D. Conn.), the Defendant moves for leave to file a sur-reply of no more than five pages in support of its Opposition to Plaintiff's Motion for Class Certification. Specifically, the Defendant seeks to respond to new arguments and factual claims made by Marvel Martinez that did not appear in the Plaintiff's previous brief and therefore Defendant has not had an opportunity to respond to such arguments. Alternatively, the Defendant requests that the Court strike arguments improperly raised by the Plaintiff for the first time in his reply. Avantus is a consumer reporting agency that provides credit reports and other information to banks, credit unions, and lenders. A copy of the Defendant's motion dated July 15, 2022 is available from PacerMonitor.com at https://bit.ly/3J99rZ1 at no extra charge.[CC] The Defendant is represented by: Christi A. Lawson, Esq. Stephen P. Brown, Esq. WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 1010 Washington Boulevard Stamford, CT 06901 Telephone: (203) 388-2450 E-mail :Stephen.brown@wilsonelser.com - and - Christi A. Lawson, Esq. John J. Atallah, Esq. FOLEY & LARDNER LLP 201 East Pine Street, Suite 1200 Orlando, FL 32801 Telephone: (407) 423-7656 E-mail: clawson@foley.com jatallah@foley.com BAKER HUGHES: Providence Shareholder Suit Ongoing ------------------------------------------------- Baker Hughes Company disclosed in its Form 10-Q, filed with the Securities and Exchange Commission on July 21, 2022, that a shareholder class action lawsuit filed on October 28, 2019 in the Delaware Court of Chancery, by the City of Providence against the General Electric Company (GE), the former members of the Board of Directors of Baker Hughes Inc. (BHI), and certain former BHI Officers is still ongoing. The Suit alleges breaches of fiduciary duty, aiding and abetting, and other claims in connection with the combination of BHI and the oil and gas business of GE. The relief sought in these complaints include a request for a declaration that Defendants breached their fiduciary duties, an award of damages, pre- and post-judgment interest, and attorneys' fees and costs. The lawsuit has since been consolidated, and plaintiffs filed a consolidated class action complaint on December 17, 2019 against certain former BHI officers alleging breaches of fiduciary duty and against GE for aiding and abetting those breaches. The December 2019 complaint omitted the former members of the Board of Directors of BHI, except for Mr. Craighead who also served as President and CEO of BHI. Mr. Craighead and Ms. Ross, who served as Senior Vice President and Chief Financial Officer of BHI, remain named in the December 2019 complaint along with GE. The relief sought in the consolidated complaint includes a declaration that the former BHI officers breached their fiduciary duties and that GE aided and abetted those breaches, an award of damages, pre- and post-judgment interest, and attorneys' fees and costs. On or around February 12, 2020, the defendants filed motions to dismiss the lawsuit on the grounds that the complaint failed to state a claim on which relief could be granted. On or around October 27, 2020, the Chancery Court granted GE's motion to dismiss, and granted in part the motion to dismiss filed by Mr. Craighead and Ms. Ross, thereby dismissing all of the claims against GE and Ms. Ross, and all but one of the claims against Mr. Craighead. Baker Hughes Company is an energy technology company with a diversified portfolio of technologies and services that span the energy and industrial value chain. BAKER HUGHES: Shareholder Suit Ongoing in Delaware --------------------------------------------------- Baker Hughes Company disclosed in its Form 10-Q, filed with the Securities and Exchange Commission on July 21, 2022, that a shareholder class action lawsuit filed on August 13, 2019 by public stockholders of Baker Hughes Incorporated (BHI) against the General Electric Company (GE), the former members of the Board of Directors of BHI, and certain former BHI Officers is still ongoing. The Suit alleges breaches of fiduciary duty, aiding and abetting, and other claims in connection with the combination of BHI and the oil and gas business of GE. The Tri-State Joint Fund filed in the Delaware Court of Chancery, a shareholder class action lawsuit for and on the behalf of itself and all similarly situated. The lawsuit has since been consolidated, and plaintiffs filed a consolidated class action complaint on December 17, 2019 against certain former BHI officers alleging breaches of fiduciary duty and against GE for aiding and abetting those breaches. The December 2019 complaint omitted the former members of the Board of Directors of BHI, except for Mr. Craighead who also served as President and CEO of BHI. Mr. Craighead and Ms. Ross, who served as Senior Vice President and Chief Financial Officer of BHI, remain named in the December 2019 complaint along with GE. The relief sought in the consolidated complaint includes a declaration that the former BHI officers breached their fiduciary duties and that GE aided and abetted those breaches, an award of damages, pre- and post-judgment interest, and attorneys' fees and costs. On or around February 12, 2020, the defendants filed motions to dismiss the lawsuit on the grounds that the complaint failed to state a claim on which relief could be granted. On or around October 27, 2020, the Chancery Court granted GE's motion to dismiss, and granted in part the motion to dismiss filed by Mr. Craighead and Ms. Ross, thereby dismissing all of the claims against GE and Ms. Ross, and all but one of the claims against Mr. Craighead. Baker Hughes Company is an energy technology company with a diversified portfolio of technologies and services that span the energy and industrial value chain. BANK OF AMERICA: Aiwohi Files RICO Suit in D. Hawaii ---------------------------------------------------- A class action lawsuit has been filed against Bank of America, N.A., et al. The case is styled as Nathan Earl Aiwohi, Toby Alamoana Keohokapu, Darlene K. Ebos, as successive Personal Representative of the Estate of Barbara Anita Baliguat; Susan DeShaw, Thomas Johnson, Maria K. Williams James, Lazara A. Rodriguez, Julie Nicolas, individually, and on behalf of others similarly situated v. Bank of America, N.A., The Bank of New York Mellon, Case No. 1:22-cv-00312-JAO-RT (D. Haw., July 19, 2022). The lawsuit is brought over alleged violation of the Racketeer Influenced and Corrupt Organizations Act for Racketeer/Corrupt Organization. The Bank of America Corporation -- https://www.bankofamerica.com/ -- is an American multinational investment bank and financial services holding company headquartered in Charlotte, North Carolina.[BN] The Plaintiffs are represented by: Frederick J. Arensmeyer, Esq. LAW OFFICE OF FREDERICK J. ARENSMEYER, LLLC Pacific Guardian Center-Muka Tower 737 Bishop Street, Suite 2920 Honolulu, HI 96813 Phone: (808) 888-7444 Email: fja@arensmeyerlaw.com BMO HARRIS BANK: Hopper Suit Removed to D. Minnesota ---------------------------------------------------- The case styled as Robert R. Hopper, on behalf of himself and all others similarly situated v. BMO Harris Bank, N.A., Dovenmuehle Mortgage, Inc., Case No. 37-02022-00015195-CU-OE-CTL was removed from the Superior Court, San Diego County, to the U.S. District Court for the District of Minnesota on July 20, 2022. The District Court Clerk assigned Case No. 0:22-cv-01828 to the proceeding. The nature of suit is stated as Consumer Credit. BMO Harris Bank, N.A. -- https://www.bmoharris.com/main/personal -- is an American bank based in Chicago, Illinois.[BN] The Plaintiff appears pro se. The Defendants are represented by: Marjan A Batchelor, Esq. MAYER BROWN LLP 71 South Wacker Dr, Office 44-17 Chicago, IL 60606 Phone: (312) 701-7863 Email: mbatchelor@mayerbrown.com BP EXPLORATION: Court Excludes Dr. Cook's Testimony in Peairs Suit ------------------------------------------------------------------ In the case, MARCUS JEROME PEAIRS v. BP EXPLORATION & PRODUCTION, INC., ET AL., SECTION "R" (4), Civil Action No. 17-3596 (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 Co., 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 Peairs' alleged exposure to toxic chemicals following the Deepwater Horizon oil spill in the Gulf of Mexico. The Plaintiff alleges that he worked as an "oil spill recovery technician" in Mobile and Theodore, Alabama, and Petit Bois, Pascagoula, and Biloxi, Mississippi from May through October 2020 January through June 2011, and January through April 2012. As an oil spill recovery technician, Peairs asserts that he pumped oil out of boats, operated heavy equipment, and at times had to "put on a wet suit to wade in oil." He represents that this exposure has resulted in the following conditions: acute bronchitis, sinusitis, upper respiratory tract, infection, cough, congestion, nosebleeds, chronic rhinitis, facial pain or sinus pain, nasal discharge, throat irritation, vomiting, acute abdominal pain, diarrhea, nausea, abdominal cramps, weakness, dizziness, flu-like symptoms, chest pains, headaches, shortness of breath, wheezing, rash, change in hair or skin texture, acne, boils, skin blistering, dryness/flaking, inflammation, redness, or swelling, itching, lesions, peeling, scaling, welts, eye burning, and irritation. Mr. Peairs' 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. Peairs 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 Peairs alleges in his complaint, he offers the testimony of Dr. 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." He 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, 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 Dr. Cook's Testimony 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 Peairs 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." Based on Dr. Cook's report, the Defendants argue that Peairs 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 Peairs'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 the Plaintiff's alleged medical conditions. They further argue that even if Dr. Cook's report were reliable, it is unhelpful because it addresses "few if any" of Peairs's medical complaints, and fails to specify what particular toxins can cause which particular conditions. The Defendants also note that two other sections of the Court have 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 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 Peairs was allegedly exposed to, at the level to which he was exposed, to the conditions that he alleges in his complaint. Although Dr. Cook admits that there are thousands of chemicals in crude oil, and that the chemical composition of weathered oil is highly variable, he makes no attempt to identify which chemicals within crude oil Peairs was allegedly exposed to, or what amounts of these chemicals can cause harm to humans. 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 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 Peairs 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. 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. Accordingly, she grants the Defendants' motion for summary judgment. III. Conclusion For the foregoing reasons, the BP parties' motion to exclude the testimony of Dr. Cook is granted. Judge Vance also grants granted. The Court also the BP parties' motion for summary judgment. The Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's July 19, 2022 Order & Reasons is available at https://tinyurl.com/4ujdwty6 from Leagle.com. CARVANA CO: Vestal Sues Over Unfair Voting Power Provisions ----------------------------------------------------------- NEAL VESTAL, on behalf of himself and all other similarly situated stockholders of CARVANA CO., Plaintiff v. CARVANA CO., ERNEST C. GARCIA, II, and ERNEST C. GARCIA, III, Defendants, Case No. 2022-0609 (Del. Ch., July 11, 2022) alleges that Carvana's operative Amended and Restated Certificate of Incorporation violates the Delaware corporate law as it purports to grant greater voting power to the Company's founders and controllers than to other investors holding otherwise identical securities. Controlling stockholders Ernest C. Garcia, II and Ernest C. Garcia, III took Carvana Co. public through an initial public offering in April 2017. Like so many other corporate founders of recent years, the Garcias allegedly chose to impose a capital structure permitting them to maintain supermajority voting control largely untethered from their economic interest in the Company. The way the Garcias achieved that goal, however, is legally invalid, says the suit. The complaint alleges that Carvana Co. unlawfully purported to give holders of certain shares of a class of stock one vote per share, while giving other holders of the very same class of stock ten votes per share, provided those holders are part of the founders' family. Plaintiff Neal Vestal is a beneficial owner of shares of Carvana Co. Class A common stock. Carvana Co. operates an e-commerce platform for buying and selling used cars.[BN] The Plaintiff is represented by: Gregory V. Varallo, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 500 Delaware Avenue, Suite 901 Wilmington, DE 19801 Telephone: (302) 364-3601 - and - Thomas Curry, Esq. SAXENA WHITE P.A. 1000 N. West St., Suite 1200 Wilmington, DE 19801 Telephone: (302) 485-0483 - and - Mark Lebovitch, Esq. Thomas James, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 554-1400 - and - Jeremy Friedman, Esq. David Tejtel, Esq. FRIEDMAN OSTER & TEJTEL PLLC 493 Bedford Center Road, Suite 2D Bedford Hills, NY 10507 Telephone: (888) 529-1108 - and - D. Seamus Kaskela, Esq. Adrienne Bell, Esq. KASKELA LAW LLC 18 Campus Boulevard, Suite 100 Newtown Square, PA 19073 Telephone: (888) 715-1740 COLGATE-PALMOLIVE CO: Class Cert. Bid Hearing Extended to August 1 ------------------------------------------------------------------ In the class action lawsuit captioned as SHARON WILLIS, individually and on behalf of all others similarly situated, v. COLGATE-PALMOLIVE CO., Case No. 2:19-cv-08542-JGB-RAO (C.D. Cal.), the Hon. Judge Jesus G. Bernal entered an order that the hearing on Plaintiff's motion for class certification and Colgate's motions to exclude Plaintiff's expert witnesses and evidence shall be continued from July 18, 2022 to August 1, 2022 at 9:00 a.m. or August 15, 2022 at 9:00 a.m. Colgate-Palmolive is an American multinational consumer products company headquartered on Park Avenue in Midtown Manhattan, New York City. It specializes in the production, distribution and provision of household, health care, personal care and veterinary products. A copy of the Court's order dated July 14, 2022 is available from PacerMonitor.com at https://bit.ly/3z21BMl at no extra charge.[CC] COMMUNITY MEDICAL: Hinds Ransomware Suit Removed to E.D. Calif. --------------------------------------------------------------- The case styled DANIEL HINDS, individually and on behalf of all others similarly situated, Plaintiff v. COMMUNITY MEDICAL CENTERS, INC., Defendant, Case No. STK-CV-UNPI-2021-10404, was removed from the Superior Court of the State of California for the County of San Joaquin to the U.S. District Court for the Eastern District of California. The Clerk of Court for the Eastern District of California assigned Case No. 1:22-at-00519 to the proceeding. Plaintiff Daniel Hinds filed his class action complaint last November 8, 2021, in the Superior Court against CMC, raising allegations involving a ransomware cyberattack that CMC experienced in October 2021. He alleges that Defendant failed to properly secure and safeguard the protected health information, such as medical information of patients, and the personally identifiable information that CMC required from patients. Community Medical Centers, Inc. is a private, not-for-profit healthcare network based in Fresno, California.[BN] The Defendant is represented by: Clay A. Coelho, Esq. Kendra Tietjen, Esq. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 655 Montgomery St., Ste 900 San Francisco, CA 94111 Telephone: (415) 433-0990 Facsimile: (415) 434-1370 E-mail: Clay.coelho@wilsonelser.com Kendra.Tietjen@wilsonelser.com - and - David M. Ross, Esq. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 1500 K Street, NW, Suite 330 Washington, D.C. 20005 Telephone: (202) 626-7687 Facsimile: (202) 628-3606 E-mail: david.ross@wilsonelser.com COMPETITIVE SOCIALIZING: Rodriguez Files ADA Suit in E.D. New York ------------------------------------------------------------------ A class action lawsuit has been filed against Competitive Socializing US LLC. The case is styled as Angel Rodriguez, individually and as the representative of a class of similarly situated persons v. Competitive Socializing US LLC, Case No. 1:22-cv-04201-NG-VMS (E.D.N.Y., July 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Competitive Social Ventures, LLC -- http://competitivesocialising.com/-- is a real estate holding company specializing in competitive socializing entertainment concepts including innovative venues: Fairway Social, Roaring Social, and Pickle & Social.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com CONAGRA BRANDS: Dahl Securities Suit Dismissed ---------------------------------------------- Conagra Brands, Inc. disclosed in its Form 10-K, filed with the Securities and Exchange Commission on July 21, 2022, that a securities class action against its directors, and several of its executive officers was dismissed on June 9, 2022. On August 6, 2019, stockholder derivative lawsuit captioned "Dahl v. Connolly, et al." was filed in the U.S. District Court for the Northern District of Illinois alleging breaches of fiduciary duty and mismanagement in connection with acquisition of Pinnacle Foods Inc. In October 21, 2019, the company received an additional demand from a stockholder under Delaware law to appoint a special committee to investigate the conduct of certain officers and directors in connection with the Pinnacle acquisition and the company's public statements. In March 9, 2020, the stockholder derivative lawsuit was consolidated in a single Consolidated Derivative Action. In June 9, 2022, it was dismissed without prejudice by stipulation of the parties. Conagra Brands, Inc. is one of North America's leading branded food companies. CONAGRA BRANDS: Faces Briseno Mislabeling Suit in California Court ------------------------------------------------------------------ Conagra Brands, Inc. disclosed in its Form 10-K, filed with the Securities and Exchange Commission on July 21, 2022, that it is party to a putative class action lawsuit challenging various product claims made in the company's product labeling namely "Briseno v. ConAgra Foods, Inc." in which it is alleged that the labeling for Wesson (R) oils as 100% natural is false and misleading because the oils contain genetically modified plants and organisms. In February 2015, the U.S. District Court for the Central District of California granted class certification to permit plaintiffs to pursue state law claims. The company appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed class certification in January 2017. The Supreme Court of the United States declined to review the decision and the case was remanded to the trial court for further proceedings. On April 4, 2019, the trial court granted preliminary approval of a settlement in this matter. In the second quarter of fiscal 2020, a single objecting class member appealed the court's decision approving the settlement to the United States Court of Appeals for the Ninth Circuit. On June 1, 2021, the appellate court rejected the settlement and remanded to the trial court for further proceedings. On December 22, 2021, the trial court denied plaintiffs' motion for final approval of the settlement. Conagra Brands, Inc. s one of North America's leading branded food companies. CONAGRA BRANDS: Faces Product Liability Suit --------------------------------------------- Conagra Brands, Inc. disclosed in its Form 10-K, filed with the Securities and Exchange Commission on July 21, 2022, that it is party to a number of matters asserting product liability claims against the company related to certain "Pam" and other cooking spray products. These lawsuits generally seek damages for personal injuries allegedly caused by defects in the design, manufacture, or safety warnings of the cooking spray products. Conagra Brands, Inc. is one of North America's leading branded food companies. CONAGRA BRANDS: Negrete Labor Suit Settled in California Court -------------------------------------------------------------- Conagra Brands, Inc. disclosed in its Form 10-K, filed with the Securities and Exchange Commission on July 21, 2022, that a class action challenging the company's wage and hour practices consolidated under the caption "Negrete v. ConAgra Foods, Inc., et al," was settled in the U.S. District Court for the Central District of California, in which the plaintiffs allege a pattern of violations of California and/or federal law at several current and former Company manufacturing facilities across the State of California. On June 21, 2021, the trial court granted preliminary approval of a settlement in this matter. Final approval of the settlement was granted on February 7, 2022 and the case was dismissed with prejudice. Conagra Brands, Inc. is one of North America's leading branded food companies. CONSUMER ADJUSTMENT: Opposition to Class Cert Bid Due August 19 --------------------------------------------------------------- In the class action lawsuit captioned as Brittingham v. Consumer Adjustment Company, Inc., Case No. 1:21-cv-00096 (S.D. Ala.), the Hon. Judge P. Bradley Murray entered an order on motion for extension of time as follows: -- The Defendant's response in opposition to class certification is to be filed not later than August 19, 2022, with Plaintiff's reply due on or before September 2, 2022. -- Similarly, Plaintiff's response in opposition to the Defendant's motion for summary judgment is due not later than August 19, 2022, with the Defendant's reply to be filed on or before September 2, 2022. The suit alleges violation of the Fair Debt Collection Practices Act involving consumer credit. Consumer Adjustment Company provides accounts receivable management services.[CC] CORSAIR GAMING: Court Narrows Claims in McKinney's 1st Amended Suit ------------------------------------------------------------------- In the case, ANTONIO McKINNEY, and CLINT SUNDEEN, each individually and on behalf of all others similarly situated, Plaintiffs v. CORSAIR GAMING, INC., Defendant, Case No. 22-cv-00312-CRB (N.D. Cal.), Judge Charles R. Breyer of the U.S. District Court for the Northern District of California grants in part and denies in part Corsair's Motion to Dismiss the First Amended Complaint. I. Background Plaintiffs McKinney and Sundeen are citizens of California who purchased Corsair memory products. They allege that Defendant Corsair's packaging of and advertisements for its computer memory cards contain deceptive and misleading statements, in violation of the common law and the consumer protection laws of California and 43 other states. They bring the putative class action on behalf of themselves and all consumers who purchased Corsair's high-speed memory products in the United States. Defendant Corsair is a company headquartered in California and incorporated in Delaware, and it sells premium, high-speed computer memory. The Plaintiffs allege that Corsair's "flagship" products are its high-speed computer memory sticks. These memory sticks function when they are plugged into the memory slots of a PC. In its advertisements and on its packaging, Corsair lists a speed rating that signifies "how fast the memory can transfer data," measured in Megahertz (MHz). The higher the number of MHz, the faster the memory (and the PC) performs. Corsair markets these memory sticks to computer gamers who want to improve game performance, and sells the products in physical stores, through online vendors, and on its website. Both Plaintiffs bought Corsair products that displayed a speed of 3200 MHz on the packaging. They also intend to represent a nationwide class of consumers who purchased Corsair memory products with other speeds advertised on the packaging. Nothing on the packaging or inside the packaging qualifies the listed speed. Corsair advertises the MHz listing on its physical product packaging, and its online advertisements also make claims highlighting the speed and reliability of its memory products. The Plaintiffs include sample advertisements for Corsair memory products and allege that Corsair made specific statements in these online ads. In their complaint, the Plaintiffs seem to state two different theories for their claims: an "out-of-the-box" theory and a "substantial risk" theory. They allege that they were injured by Corsair's false statements and material omissions on its packaging and in advertisements. They allege that they would not have bought (or would not have paid the same price for) the product had they known that it did not run reliably at the stated speed. Further, the Plaintiffs allege that Corsair knows "the truth" that overclocking is unreliable, and "knows that the statements on its packaging and ads are false and misleading to reasonable consumers." They also allege that "Corsair intends that consumers will rely on these false and misleading statements when purchasing High-Speed Memory." The Plaintiffs assert claims based on (1) the State Consumer Protection Acts of 44 separate states (including California); (2) California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code Section 17200, et seq.; (3) California's False Advertising Laws ("FAL"), Cal. Bus. & Prof. Code Section 17500, et seq.; (4) Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code Section 1750, et seq.; (5) breach of express warranty; and (6) negligent misrepresentation. Corsair moves to dismiss and requests judicial notice of six exhibits. II. Discussion Judge Breyer first addresses Corsair's request for judicial notice. Then, he addresses Corsair's arguments in the following order with respect to its motion to dismiss: (1) applicability of Rule 9(b); (2) challenges to the misrepresentation claims; (3) challenges to the omissions claims; (4) challenges to claims for equitable relief; and (5) applicability of the economic loss rule. Finally, he addresses Corsair's argument that the Plaintiffs lack standing to assert class claims under the laws of other states and to assert class claims as to products other than the 3200 MHz memory card they bought. A. Request for Judicial Notice Corsair requests that the Court take judicial notice of six exhibits containing copies of online webpages. The Plaintiffs do not oppose. Exhibits A and B are copies of the product page for the "DOMINATOR PLATINUM RGB" with the "TECH SPECS" and "OVERVIEW" tabs selected, respectively. Exhibit C is a copy of the "Help Page" on Corsair's website pertaining to "Memory" help. Exhibit D is a copy of the "FIND BY COMPATIBILITY" page on Corsair's website, as well as pages generated by making selections in various fields on that webpage. Exhibit E is a copy of the "Intel Extreme Memory Profile (Intel XMP)" page on Intel's website. Exhibit F is a copy of the "Computer Memory Finder" page on Newegg's website, as well as pages generated by making selections in various fields on that webpage. The Plaintiffs explicitly cite to the product webpage copied in Exhibits A and B as a source of Corsair's deceptive advertising. They also cite to information on Intel's website about Intel's XMP setting and warranty in explaining the risks of overclocking. Thus, the complaint necessarily relies on the webpages, they are central to the Plaintiffs' claims, and there is no dispute as to their authenticity. As such, Judge Breyer incorporates Exhibits A, B, and E by reference. The three remaining exhibits (Exs. C, D, and F) are publicly accessible webpages on Corsair's website (Exs. C and D) and Newegg's website (Ex. F). Corsair asks that these exhibits should be considered for the fact of their publication, and not their contents. The Plaintiffs do not dispute the authenticity of these webpages and do not oppose. Thus, Judge Breyer also grants Corsair's request with respect to these exhibits. B. Motion to Dismiss Corsair moves to dismiss the Plaintiffs' claims on the grounds that the Plaintiffs: (1) fail to comply with Rule 9(b), (2) fail to plausibly allege their misrepresentation claims, (3) fail to plausibly allege their omission claims, (4) cannot ask for equitable relief in addition to remedies at law, and (5) cannot recover in tort for purely economic losses. 1. Rule 9(b) If claims under the UCL, FAL, and CLRA specifically allege fraud, or allege facts that constitute fraud -- even if the word fraud is not used -- the claims are subject to the heightened standard. The elements of fraud in California are: "(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage." Judge Breyer holds that the Plaintiffs must meet Rule 9(b) particularity with respect to their FAL, UCL, and CLRA claims, and they fail to do so for their allegations about Corsair's advertisements. As such, he grants the motion to dismiss with respect to all claims based on allegations about advertisements. 2. Misrepresentation Corsair argues that the Plaintiffs fail to plausibly allege that reasonable consumers would be deceived by the statements on Corsair's packaging. Judge Breyer disagrees. Among other things, he finds that the Plaintiffs' substantial risk theory seems to be that, even for consumers who do take the additional step of overclocking, there is a "substantial risk" that the memory still does not run correctly and at the advertised speed. While it remains somewhat unclear how this theory of liability is distinct from the out-of-the-box theory, he concludes that it too is plausibly pleaded. Accordingly, he denies Corsair's motion to dismiss with respect to the misrepresentation claims related to statements on the packaging. 3. Omission Corsair also argues that the omissions claims fail because the Plaintiffs have not alleged that Corsair had a duty to disclose any qualifying information. Judge Breyer agrees that the claims fail for this reason. The Plaintiffs allege one of each variety: (1) a partial omissions claim on the basis of Corsair's partial representations about the memory speed; and (2) a pure omissions claim on the basis of Corsair's exclusive knowledge of the facts that overclocking was necessary for its product to operate correctly. He holds that both omissions claims fail because the Plaintiffs do not allege a defect that is central to the product's function. Surprisingly, the Plaintiffs' concede that they do not plead any defect at all. He therefore grants the motion to dismiss the omission claims. 4. Equitable Claims Corsair next argues that the Plaintiffs' claims for equitable relief under the CLRA, UCL, and FAL should be dismissed because Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020) precludes courts from entertaining equitable claims when an adequate legal remedy exists. The Plaintiffs argue that they have pleaded in the alternative and that Sonner does not apply at the pleading stage. Judge Breyer holds that although the Plaintiffs can pursue equitable claims in the alternative to legal remedies, they are still required to explain how, or plead that, the legal remedies are inadequate. Because the Plaintiffs have not pleaded that damages are inadequate, he grants Corsair's motion to dismiss the request for equitable relief. 5. Economic Loss Rule Corsair further argues that the Plaintiffs' negligent misrepresentation claims should be dismissed because they are premised on the Plaintiffs' disappointed economic expectations arising from sales transactions. The Plaintiffs respond that the economic loss rule does not apply when "an independent duty arising from tort law is violated," and that when a defendant induces a plaintiff to enter into a contract by misrepresenting a product, that is a tort independent of the breach. Corsair argues that the Robinson Helicopter exception applies only where the fraud results in physical injury. Judge Breyer explains that the Plaintiffs are barred from recovery because they do not allege personal injury or exposure to liability. Especially given the Court's earlier conclusion that the Plaintiffs' negligent misrepresentation claims do not sound in fraud (and are subject only to Rule 8), he holds that the exception to the economic loss rule does not apply. Judge Breyer therefore grants Corsair's motion to dismiss the negligent misrepresentation claims. C. Motion to Strike for Lack of Standing Finally, Corsair argues that the Plaintiffs' class allegations should be partially stricken because they lack standing to bring claims on behalf of a class. First, Corsair argues that Mazza v. American Honda Motor Co., Inc., 666 F.3d 581, 587, 589-90 (9th Cir. 2012) held that, because California's consumer laws differ from those in other states, plaintiffs cannot bring claims arising under the laws of states where the representative neither resides nor suffered injury. Second, it argues that the Plaintiffs lack standing to assert claims involving products different from the 3200 MHz memory card they themselves purchased. Judge Breyer agrees with the Plaintiffs that Corsair has not made a sufficient showing that California law is materially different from other states' laws on the facts of the case. He also holds that although the Plaintiffs vaguely allege that the misrepresentations on different memory products are similar, they do not do so with enough specificity. Their allegations are conclusory. At a minimum, the Plaintiffs must allege which other models ran at lower speeds. Without doing so, it is implausible that they could, "by establishing that any of the labels were misleading, necessarily establish that they all were." Accordingly, Judge Breyer strikes the class claims to the extent they refer to products that the Plaintiffs did not buy. III. Conclusion For the foregoing reasons, Judge Breyer grants Corsair's motion to dismiss as to the claims based on online advertising, the omission claims, the request for equitable relief, the negligent misrepresentation claims, and the class claims as to products not bought by the Plaintiffs. He denies the motion as to the breach of warranty claims, the misrepresentation claims based on statements on the packaging, and class claims brought under the laws of other states. Judge Breyer grants leave to amend all but the negligent misrepresentation claims. The Plaintiffs may file an amended complaint within 21 days of the date of the Order. A full-text copy of the Court's July 19, 2022 Order is available at https://tinyurl.com/39nmsu25 from Leagle.com. CRABTREE & EVELYN: Toro Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Crabtree & Evelyn, Ltd. The case is styled as Jasmine Toro, on behalf of herself and all others similarly situated v. Crabtree & Evelyn, Ltd., Case No. 1:22-cv-06088 (S.D.N.Y., July 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Crabtree & Evelyn -- https://www.crabtree-evelyn.com/ -- is a current online-only and former brick-and-mortar retailer of body, fragrance and home care products.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: marskhaimovlaw@gmail CRUSH CITY: Morgan's Bid for Rule 23 Class Certification Nixed -------------------------------------------------------------- In the class action lawsuit captioned as ZACHARY MORGAN on behalf of himself and all others similarly situated, v. CRUSH CITY CONSTRUCTION, LLC, Case No. 3:19-cv-00027-wmc (W.D. Wisc.), the Hon. Judge William M. Conley entered an order: 1) granting the Plaintiff's motion to amend his complaint; 2) denying in part and granting in part the Plaintiff's motion for partial summary judgment; 3) denying the Plaintiff's motion to certify Rule 23 classes; and 4) denying the Plaintiff's "emergency motion to strike defendant's memorandum of law in opposition to plaintiff's motion for class certification;" The following schedule will apply, Court says: -- Disclosure of experts: Plaintiffs: September 2, 2022 Defendant: October 19, 2022 -- Discovery Cutoff: October 21, 2022 -- Deadline for filing October 28, 2022 dispositive motions: -- Settlement Letters: February 3, 2023 -- Motions in limine and February 3, 2023 Rule 26(a)(3) Disclosures: -- Responses to all motions February 17, 2023 in limine and disclosures: -- Final Pretrial Conference: March 1, 2023 -- Trial: March 20, 2023 Mr. Morgan claims that his former employer, defendant Crush City, violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. section 201 et seq., and Wisconsin's Wage and Hour Laws, Wis. Stat. Ch. 109. All Technician Employees were non-exempt and paid either on an hourly basis or on a "piecework" basis. Named plaintiff Zachary Morgan worked at Crush City as a Technician Employee from May 2017 until September 2018. Crush City d/b/a Lindus Construction is a Wisconsin construction company owned by Adam, Alex, and Andy Lindus. Crush City employs "Technician Employees" for the purpose of performing work related to residential construction. A copy of the Court's order dated July 14, 2022 is available from PacerMonitor.com at https://bit.ly/3PQqgtZ at no extra charge.[CC] CVS HEALTH: Mier Appeals Renewed Class Cert. Bid Denial to 9th Cir. ------------------------------------------------------------------- JOSEPH MIER is taking an appeal from a court ruling denying his renewed motion for class certification in the lawsuit entitled Joseph Mier, individually and on behalf of all others similarly situated, Plaintiff, v. CVS Health, et al., Defendants, Case No. 8:20-cv-01979-DOC-ADS, in the U.S. District Court for the Central District of California. The Plaintiff brought this consumer class action suit against the Defendants for alleged intentional misrepresentation, negligent misrepresentation, and violations of the False Advertising Law and the Unfair Competition Law by making false, deceptive, and misleading advertising, labeling, and marketing of CVS's Advanced Formula Hand Sanitizer. On February 2, 2022, the Plaintiff filed a renewed motion for class certification and for appointment of class counsel under Federal Rule of Civil Procedure 23(b)(3) which the court denied on May 9, 2022, through an Order entered by District Judge David O. Carter. The court found that Rule 23(b)(3) was not satisfied because the Plaintiff failed to show the common issues predominated the class through their Comcast-compliant damages model. The Plaintiff's damages model calculated consumer willingness-to-pay but-for the 99% claim. However, the Plaintiff's damages model did not calculate the market price but-for the 99% claim because it failed to determine the supply curve for CVS's hand sanitizer. Thus, the Plaintiff's damages model is only capable of calculating restitution, not fraud or misrepresentation damages. The appellate case is captioned as Joseph Mier v. CVS Health, et al., Case No. 22-55665, in the United States Court of Appeals for the Ninth Circuit, filed on July 12, 2022. The briefing schedule in the Appellate Case states that: -- Appellant Joseph Mier Mediation Questionnaire was due July 19, 2022; and -- Appellant Joseph Mier opening brief is due on October 20, 2022; and -- Appellees CVS Health, CVS Pharmacy, Inc., and Vi-Jon, LLC answering brief is due on November 21, 2022; and -- Appellant's optional reply brief is due 21 days after service of the answering brief. [BN] Plaintiff-Appellant JOSEPH MIER is represented by: Thiago Coelho, Esq. Robert Dart, Esq. WILSHIRE LAW FIRM 3055 Wilshire Boulevard, 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Defendants-Appellees CVS HEALTH, et al., are represented by: Anthony Anscombe, Esq. STEPTOE & JOHNSON, LLP 227 W. Monroe Street, Suite 4700 Chicago, IL 60606 Telephone: (312) 577-1265 - and - Melanie Atswei Ayerh, Esq. STEPTOE & JOHNSON, LLP 633 W 5th Street, Suite 1900 Los Angeles, CA 90071 Telephone: (480)766-8827 - and - Carol R. Brophy, Esq. STEPTOE & JOHNSON LLP 1 Market Street, Suite 1800 San Francisco, CA 94105 Telephone: (415) 365-6724 - and - William P. Cole, Esq. AMIN TALATI WASSERMAN, LLP 515 S Flower Street 18th and 19th Floors Los Angeles, CA 90071 Telephone: (213) 933-2330 - and - Anthony Hopp, Esq. STEPTOE & JOHNSON, LLP 227 W Monroe Street, Suite 4700 Chicago, IL 60606 Telephone: (312) 577-1249 DAVID'S BRIDAL: Iskhakova Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against David's Bridal, LLC. The case is styled as Marina Iskhakova, on behalf of herself and all others similarly situated v. David's Bridal, LLC, Case No. 1:22-cv-04218 (E.D.N.Y., July 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. David's Bridal -- https://www.davidsbridal.com/ -- is a clothier in the United States that specializes in wedding dresses, prom gowns, and other formal wear.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com DD DIGITAL MEDIA: Cromitie Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against DD Digital Media, Inc. The case is styled as Seana Cromitie, on behalf of herself and all others similarly situated v. DD Digital Media, Inc., Case No. 1:22-cv-06176 (S.D.N.Y., July 20, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. DD Digital Media is an organization primarily operates in the Communication Services located in Parrish, Florida.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com DEARBORN BISTRO: Baldwin Files FLSA Suit in E.D. Michigan --------------------------------------------------------- A class action lawsuit has been filed against Dearborn Bistro, LLC. The case is styled as Tara Baldwin, individually and on behalf of all others similarly situated v. Dearborn Bistro, LLC d/b/a Pantheion Club, Case No. 2:22-cv-11670-NGE-APP (E.D. Mich., July 20, 2022). The lawsuit is brought over alleged violation of the Fair Labor Standards Act. Dearborn Bistro, LLC doing business as Pantheion Club is the oldest and most established gentlemens club in Michigan.[BN] The Plaintiffs are represented by: Deborah L. Gordon, Esq. DEBORAH L. GORDON ASSOC. 33 Bloomfield Hills Parkway, Suite 220 Bloomfield Hills, MI 48304 Phone: (248) 258-2500 Email: dgordon@deborahgordonlaw.com DEEJAYZOO LLC: Slade Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Deejayzoo, LLC. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Deejayzoo, LLC, Case No. 1:22-cv-06104 (S.D.N.Y., July 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Deejayzoo is a female focused design and innovation company.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com DETROIT EDISON: Amended Bid to Certify Settlement Class OK'd ------------------------------------------------------------ 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, JANET POSLER, QUALIFIED PLAN APPEALS COMMITTEE, MICHAEL S. COOPER, RENEE MORAN and JEROME HOOPER, Case No. 2:21-cv-04132-RMG (D.S.C.), 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 (as those terms are defined in the DTE Energy Company Retirement Plan attached as Exhibit 1 to the Complaint), 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. The 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, 28 U.S.C. § 1715(b). The Court further ordered that the defendants or their designated representative shall cause notice of the proposed settlement to be given to class members in the following manner: (a) On or before August 19, 2022, a copy of the Notice of Class Action Settlement Agreement, must be mailed by first-class mail, with postage prepaid, to each class member's last-known address and via email to their last- known email address. If necessary to provide actual notice, the defendant must use commercially-reasonable means to find class members' current address and re-send the notice document. (b) The notice to class members must explain that objections to the class settlement must be filed with the Court and the parties' counsel on or before September 27, 2022. The defendants' counsel shall file proof of mailing of the class notice in conformity with this order on or before August 26, 2022. It is further ordered that: -- 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 defendants' response, if the motion is opposed, must be filed on or before October 18, 2022; -- No reply will be permitted without leave of Court; -- 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; and -- any class member may appear at the settlement hearing and be heard to the extent allowed by this Court, either in support of or in opposition to the good faith, fairness, reasonableness, and adequacy of the proposed settlement or the plaintiff's counsels' application for an award of attorney's fees, reimbursement of expenses, and an incentive award to the representative plaintiff. DTE Energy is a Detroit-based diversified energy company involved in the development and management of energy-related businesses and services in the United States and Canada. A copy of the Court's order dated July 14, 2022 is available from PacerMonitor.com at https://bit.ly/3b1lzPp at no extra charge.[CC] DIALAMERICA MARKETING: Blanco Suit Removed to S.D. California ------------------------------------------------------------- The case styled as Daniel Blanco, Rafael Blanco, individually and on behalf of all others similarly situated v. DialAmerica Marketing, Inc., Case No. 37-02022-00015195-CU-OE-CTL was removed from the Superior Court, San Diego County, to the U.S. District Court for the Southern District of California on July 20, 2022. The District Court Clerk assigned Case No. 3:22-cv-01050-CAB-BLM to the proceeding. The nature of suit is stated as Other P.I. for Class Action Fairness Act. DialAmerica -- https://www.dialamerica.com/corporate/ -- offers domestic call center services that align with your business needs for customer acquisition & retention.[BN] The Plaintiff is represented by: Bibianne Uychinco Fell, Esq. FELL LAW, PC 11956 Bernardo Plaza Drive, Suite 531 San Diego, CA 92128 Phone: (858) 201-3960 Fax: (858) 201-3966 Email: bibi@fellfirm.com - and - Marlee Ann Horwitz, Esq. FELL LAW, PC 5677 Oberlin Drive, Suite 204 San Diego, CA 92121 Phone: (858) 201-3960 Fax: (858) 201-3966 Email: marlee@fellfirm.com The Defendants are represented by: James F. Monagle, Esq. MULLEN COUGHLIN LLC 309 Fellowship Road, Suite 200 Mt. Laurel, NJ 08045 Phone: (267) 930-1529 Email: jmonagle@mullen.law DIGNITY HEALTH: Grant of Summary Adjudication in Sarun Suit Upheld ------------------------------------------------------------------ In the case, TONY SARUN, Plaintiff and Appellant v. DIGNITY HEALTH, Defendant and Respondent, Case No. B311909 (Cal. App.), the Court of Appeals of California, Second District, Division Seven, affirms the order of the trial court: a. granting Dignity Health's motion for summary adjudication; and b. denying Sarun's cross-motion for summary adjudication. I. Overview Dignity Health's conditions of admission agreement, presented to patients after they receive emergency care at one of its hospitals, provided an uninsured individual must pay the hospital's "full charges, unless other discounts apply." "Full charges" was defined as "the Hospital's published rates (called the chargemaster) prior to any discounts or reductions." The admissions agreement explained uninsured patients might qualify for government aid programs or financial assistance from Dignity Health. Following emergency treatment at Northridge Hospital Medical Center (Northridge Hospital), owned and operated by Dignity Health, Tony Sarun received an invoice for $23,487.90, which reflected a chargemaster rate of $31,359 reduced by a $7,871.10 "uninsured discount." Sarun filed a putative class action lawsuit against Dignity Health, alleging claims for unfair and/or deceptive business practices under California's unfair competition law (UCL) (Bus. & Prof. Code, Section 17200) and Consumers Legal Remedies Act (CLRA) (Civ. Code, Section 1750 et seq.), and seeking declarations that Dignity Health's billing practices are unconscionable and, because the prices to be charged are not adequately disclosed or readily available to uninsured individuals who receive emergency care at a Dignity Health hospital (that is, the prices are unfixed or indeterminable), the admissions agreement contains an "open price" term within the meaning of Civil Code section 1611 (section 1611), so that self-pay patients are liable only for the reasonable value of the services provided. After it certified a class limited to the request for a declaration the admissions agreement contains an open price term, as instructed by the Court of Appeals in Sarun v. Dignity Health (2019) 41 Cal.App.5th 1119 (Sarun II), the trial court granted Dignity Health's motion for summary adjudication and denied Sarun's cross-motion for summary adjudication as to that cause of action (the only class claim), finding section 1611 did not apply because the admissions agreement disclosed "the method by which the price is to be ascertained." The Court of Appeals affirms. II. Background Mr. Sarun, who was uninsured at the time, was taken by ambulance to the emergency room at Northridge Hospital following a motor vehicle accident. He was released three to four hours later after being examined and receiving various diagnostic tests. While at the hospital Sarun signed a standard form "Conditions of Admissions and Treatment," which included terms governing payment for services. Paragraph 8(b) of the admissions agreement stated, "Patients who do not have insurance must pay us for the services at our full charges, unless other discounts apply. However, uninsured patients may be able to qualify for government programs or financial assistance. Financial assistance may include a discount from the Hospital's full charges, free care, interest free payment plans or other assistance. Shortly after his treatment Sarun received a "Balance Due Notice" reflecting total charges of $31,359, the chargemaster rate; an uninsured discount of $7,871.10; and a balance due of $23,487.90. The notice stated, "Only patients seen for eligible hospital services as set forth in Dignity Health's Uninsured Discount Policy, with an annual household income that does not exceed $250,000, who are uninsured and who agree to assign all benefits relating to this claim to Dignity Health, are entitled to the Uninsured Discount." It also stated, in addition to the uninsured discount, "you may be eligible for other forms of financial assistance such as government sponsored programs" and provided a telephone number for further information. A document included with the notice described the financial assistance options, provided an application and enumerated the necessary documentation. Several days later a second balance due notice was issued, which indicated an additional 25% discount would be applied if Sarun paid the total amount due within 30 days, reducing the outstanding balance to $15,648.15. Without applying for any other discount or financial assistance, Sarun filed a putative class action complaint in May 2012 asserting claims under the UCL and CLRA and seeking declaratory relief based on allegations the charges set forth on the invoices were not readily available or discernable from the admissions agreement and the invoiced charges exceeded the reasonable value of the services. The trial court sustained Dignity Health's demurrer to Sarun's second amended complaint without leave to amend and dismissed the action on the ground Sarun had not adequately alleged "actual injury" and, therefore, lacked standing. The Court of Appeals reversed and remanded the case for further proceedings. Mr. Sarun's third amended complaint again alleged causes of action under the UCL and CLRA and sought declarations on behalf of members of a state-wide putative class that Dignity Health's billing practices are "unfair, unconscionable, and/or unreasonable" and that Dignity Health's admissions agreement "contains an 'open price' term with respect to self-pay emergency care patients and thus they are liable to Dignity Health for no more than the reasonable value of the treatment/services provided." The trial court denied Sarun's motion for class certification of the declaratory relief cause of action. The Court of Appeals reversed in part, directing the trial court to certify a modified issue class with respect to Sarun's open price term claim as it related to uninsured individuals who received emergency care at Northridge Hospital and who signed (personally or through an authorized agent) the admissions contract and were thereafter directly billed for that treatment at chargemaster rates or chargemaster rates less the uninsured discount. The trial court certified the issue class in July 2020, specifically noting, "The Class is limited to the issue of whether the admissions contract contains an open price term." Following discovery, Dignity Health moved for summary adjudication on the class claim for declaratory relief, contending Northridge Hospital's admissions agreement does not contain an open price term within the meaning of section 1611. Sarun opposed Dignity Health's motion and filed a cross-motion for summary adjudication on the open price term claim. Sarun argued Northridge Hospital's admissions agreement contained an open price term within the meaning of section 1611 because the term "full charges" was not clearly defined; the agreement did not effectively incorporate by reference the chargemaster schedule; and the qualifying language, "unless other discounts apply," did not identify or explain the discounts and thus left uncertain the charges that would be assessed. In an order filed March 8, 2021, the trial court granted Dignity Health's motion and denied Sarun's. Although his individual claim of unconscionability remained pending in the trial court, Sarun filed a notice of appeal, which stated, "The Order is appealable under the 'death knell' doctrine. III. Discussion A. Preliminary Issues: Appealability and Forfeiture a. The March 8, 2021 order is appealable under the death knell doctrine "Under the one final judgment rule, '"an appeal may be taken only from the final judgment in an entire action."'" However, the Supreme Court has explained the "death knell doctrine" is an exception to this rule when the trial court has entered an order in a class action "that (1) amounts to a de facto final judgment for absent plaintiffs, under circumstances where (2) the persistence of viable but perhaps de minimis individual plaintiff claims creates a risk no formal final judgment will ever be entered." Because the trial court's March 8, 2021 order granting Dignity Health's motion for summary adjudication extinguishes the class claim in its entirety, while Sarun's individual claim of unconscionability survives, the order, to the extent it grants Dignity Health's motion, is immediately appealable. b. Sarun has not forfeited his argument the undisclosed uninsured patient discount creates an open price term Dignity Health urges the Court of Appeals to affirm the trial court's order without addressing the merits of Sarun's argument that automatic application of the undisclosed uninsured patient discount created an open price term in the admissions agreement, contending Sarun failed to plead this theory in his operative complaint or raise it in his motion for summary adjudication or papers in opposition to Dignity Health's motion. Because Sarun advanced this theory for the first time at the hearing on the motions, Dignity Health asserts, it has been forfeited. The Court of Appeals holds that while the exact argument now asserted by Sarun with respect to the automatic application of the uninsured patient discount was not detailed in his pleading or trial court memoranda, "in assessing whether the issues raised by the plaintiff in opposing summary judgment are encompassed by the controlling pleading, the Court of Appeals generally construes the pleading broadly." What is required is that the pleading allege "the essential facts" -- that is, that the allegations "are sufficient to acquaint a defendant with the nature, source and extent of the cause of action." Throughout the case, Sarun has contended the reference in the admissions agreement to undefined "other discounts," including the undisclosed uninsured patient discount, created an open price term. While the nature of his argument regarding that discount has evolved, Dignity Health had sufficient notice of its role in the class claim to preserve the theory for appeal. B. The Admissions Agreement Does Not Contain an Open Price Term Once again setting aside the various language-based arguments advanced in his papers in the trial court (for example, that the term "full charges" does not clearly refer to the chargemaster schedule), Sarun on appeal contends the automatic application of the uninsured patient discount to the prices in the chargemaster schedule, "which is unknown to patients and unmentioned in the Contract," creates an open price term within the meaning of section 1611: "Because the Contract fails to reference the automatically applied Uninsured Discount or the amount of such discount, 'the method set forth in the contract' cannot 'be employed to determine the price due.'" The Court of Appeals opines that the Uninsured Patient Discount Policy required all Dignity Health hospitals to post a summary of the policy in the emergency department, main patient registration/admitting departments and billing office and to provide brochures explaining the policy in registration, admitting, emergency and urgent care areas and in patient financial services offices on each hospital campus. Sarun presented no evidence in opposition to Dignity Health's motion suggesting Northridge Hospital during the class period did not comply with Dignity Health's policy regarding signage and written communication. Thus, like the published chargemaster schedule for Northridge Hospital, the hospital's uninsured patient discount policy, including the eligibility requirements, far from being "unknown and unknowable," was available to class members. Accordingly, with respect to the uninsured patient discount, the provision in the admissions agreement that an uninsured individual must pay the hospital's "full charges, unless other discounts apply" identified an objective method by which the amount of the consideration could be ascertained. Nothing more is required by section 1611. IV. Disposition The order granting Dignity Health's motion for summary adjudication is affirmed. Dignity Health is to recover its costs on appeal. A full-text copy of the Court's July 19, 2022 Opinion is available at https://tinyurl.com/2rydus49 from Leagle.com. Carpenter Law, Gretchen Carpenter -- gcarpenter@strangeandcarpenter.com; Law Office of Barry Kramer and Barry L. Kramer -- kramerlaw@aol.com -- for the Plaintiff and Appellant. Manatt, Phelps & Phillips, Barry S. Landsberg -- blandsberg@manatt.com -- Harvey L. Rochman -- hrochman@manatt.com -- Joanna S. McCallum -- jmccallum@manatt.com -- and Craig S. Rutenberg -- crutenberg@manatt.com -- for the Defendant and Respondent. DIVERSIFIED ENERGY: Faces McEvoy Suit Over Abandoned Gas Wells -------------------------------------------------------------- MARK MCEVOY, JAMES TAWNEY, and SUSAN TAWNEY, individually and on behalf of a proposed class, Plaintiffs v. DIVERSIFIED ENERGY COMPANY PLC, DIVERSIFIED GAS & OIL, PLC, DIVERSIFIED PRODUCTION, LLC, DIVERSIFIED GAS & OIL CORPORATION, DIVERSIFIED OIL AND GAS LLC, ALLIANCE PETROLEUM CORPORATION EQT PRODUCTION COMPANY, EQT PRODUCTION HTW, LLC, EQT ENERGY LLC, EQT INVESTMENT HOLDINGS, LLC, EQT GATHERING, LLC, EQT MIDSTREAM PARTNERS LP, EQT GP HOLDINGS, LP, and EQT CORPORATION, Defendants, Case No. 5:22-cv-00171-JPB (N.D.W. Va., July 8, 2022) is brought by the Plaintiffs asserting common law claims for trespass, nuisance, and negligence against Diversified. This case centers on thousands of abandoned gas wells in West Virginia that Diversified has a duty to plug and decommission. Overall, Diversified owns 23,309 wells in West Virginia, at least 2,168 of which are abandoned -- including the more than 700 already abandoned or nonproducing wells in West Virginia transferred by EQT to Diversified in July 2018 and additional wells transferred from EQT to Diversified in May 2020. This lawsuit aims in the first instance to enforce the Plaintiffs' common private right to have those abandoned wells plugged and decommissioned by Diversified on a prompt basis. Every landowner with a nonproducing Diversified well was defrauded and harmed by the July 2018 Fraudulent Transfers and May 2020 Transfers whether or not those wells were previously owned by EQT, says the suit. The case also concerns fraudulent transfers made between Diversified and EQT. During two such transfers, that occurred in July 2018 and on May 2020 (the "July 2018 Fraudulent Transfers" and the "May 2020 Fraudulent Transfers," respectively) Diversified paid more than $600 million to EQT. Those transfers should be avoided up to the amount necessary to satisfy Plaintiffs' claims, the suit asserts. The Plaintiffs, who are members of a proposed class of West Virginia landowners whose properties are burdened with abandoned gas wells, brought this suit to stop the shell game and to assure that the wells are plugged, despite the best efforts of both companies to slip their obligations. Diversified Energy Company PLC, formerly Diversified Gas & Oil plc, is a gas and oil production company operating in the Appalachian Basin in the United States.[BN] The Plaintiffs are represented by: Brian A. Glasser, Esq. John W. Barrett, Esq. BAILEY & GLASSER, LLP 209 Capitol Street Charleston, WV 25301 Telephone: (304) 345-6555 Facsimile: (304) 342-1110 E-mail: bglasser@baileyglasser.com jbarrett@baileyglasser.com - and - Joseph M. Lovett, Esq. Benjamin A. Luckett, Esq. J. Michael Becher, Esq. Appalachian Mountain Advocates P.O. Box 507 Lewisburg, WV 24901 Telephone: (304) 645-9006 E-mail: jlovett@appalmad.org bluckett@appalmad.org mbecher@appalmad.org DMD MANAGEMENT: Spencer's Bid for Conditional Certification OK'd ---------------------------------------------------------------- In the class action lawsuit captioned as ALISA SPENCER v. DMD MANAGEMENT, INC. D/B/A LEGACY HEALTH SERVICES, ET AL., Case No. 1:21-cv-01698-CAB (N.D. Ohio), the Hon. Judge Christopher A. Boyko entered an order granting Spencer's motion for Conditional Certification. The Court declines approval of the Notice, subject to resubmission by July 21, 2022, with the following sentence added to the end of the second paragraph of the Notice at Section 5 immediately following "you will be entitled to no relief." "If the Court rules in favor of Defendants, although rare, opt-in plaintiffs may be required to pay a proportionate share of Defendants' costs." Spencer seeks to conditionally certify a collective class defined as: "All present and former State Tested Nursing Aides ("STNAs") who were employed by the Defendants and who worked 40 or more hours in any workweek at any time from August 31, 2018 to the present." According to her First Amended Complaint, Spencer alleges she is an Ohio resident and STNA, employed since 20006 at Defendant DMD Management, Inc.'s Wickliffe skilled nursing facility. She alleges she was not paid the statutory overtime rate of one and one-half times her hourly rate for all hours worked over 40 hours in a given week in violation of the Fair Labor Standards Act. She further brings a statutory class action claim for unpaid wages in violation of the Ohio Minimum Fair Wage Standards Act ("OMFWSA"). According to Spencer, the Defendants own ten nursing and assisted living facilities in Ohio, with over 2,500 employees. These facilities are: Broadview Multi-Care Center, Cedarwood Plaza, Franklin Plaza, Hillside Plaza, Mapleview Country Villa, Orchard Villa, Parkside Villa, Pleasant Lake Villa, Pleasantview Care Center & Legacy Place Parma and Wickliffe Country Place. The Defendants employ STNAs at each of these facilities and have imposed a company-wide policy of deducting thirty minutes from its STNA's daily hours worked for lunch breaks. However, STNA's often are unable to take an uninterrupted meal break of thirty minutes due to severe staffing shortages. Although the Defendants have knowledge of this fact, they still deduct thirty minutes from the STNA's daily work hours in violation of the FLSA. A copy of the Court's order dated July 14, 2022 is available from PacerMonitor.com at https://bit.ly/3RXjdl0 at no extra charge.[CC] DOORDASH INC: Lawson Sues Over Hidden Delivery Fee Charges ---------------------------------------------------------- LEONARD LAWSON, Plaintiff v. DOORDASH, INC., Defendant, Case No. 3:22-cv-04059-SK (N.D. Cal., July 11, 2022) is a class action brought by the Plaintiff, on behalf of all persons similarly situated, against the Defendant for alleged deception concerning the true costs of its delivery service, in violation of the California's Consumer Legal Remedies Act, California's False Advertising Law, and California's Unfair Competition Law. According to the complaint, DoorDash purports to provide delivery service of meals and other items for free. DoorDash chose to emphasize the claim that it does not charge delivery fees because it understood that consumers abhor delivery fees, and in many cases will walk away from a purchase before agreeing to pay for delivery. While DoorDash regularly advertises that it charges a "$0 delivery fee," and DoorDash's order confirmation page confirms a $0.00 delivery fee, delivery fees are in fact hidden in the purchase price for individual items ordered on DoorDash, says the complaint. Through these practices, DoorDash has concealed billions of dollars in delivery fees from customers, including Plaintiff, and induced millions of customers to sign up for and place orders through the DoorDash platform, that otherwise would not have done so, the complaint alleges. DoorDash operates an online food ordering and delivery service, which has in recent years been expanded to offer delivery from additional types of stores other than restaurants, like grocery and convenience stores.[BN] The Plaintiff is represented by: Matthew L. Venezia, Esq. George B. A. Laiolo, Esq. ELLIS GEORGE CIPOLLONE O'BRIEN ANNAGUEY LLP 2121 Avenue of the Stars, 30th Floor Los Angeles, CA 90067 Telephone: (310) 274-7100 Facsimile: (310) 275-5697 E-mail: mvenezia@bgrfirm.com glaiolo@egcfirm.com EKSTER INC: Rodriguez Files ADA Suit in E.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Ekster Inc. The case is styled as Angel Rodriguez, individually and as the representative of a class of similarly situated persons v. Ekster Inc., Case No. 1:22-cv-04202-AMD-VMS (E.D.N.Y., July 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ekster -- https://ekster.com/ -- is a scale-up that designs, produces and markets smart leather goods with an innovative touch.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com ELEPHANT INSURANCE: Bias Files Suit Over Unauthorized Data Access ------------------------------------------------------------------ TRINITY BIAS AND JAIME CARDENAS, individually and on behalf of all others similarly situated, Plaintiffs v. ELEPHANT INSURANCE COMPANY, ELEPHANT INSURANCE SERVICES, LLC, and APPARENT INSURANCE, Defendants, Case No. 3:22-cv-00483-JAG (E.D. Va., July 8, 2022) is brought against the Defendants for negligence, negligence per se, unjust enrichment, deceptive trade practices, declaratory and injunctive relief, and for violation of the Drivers' Privacy Protection Act, the Illinois Consumer Fraud Act, and the Illinois Uniform Deceptive Trade Practices Act for failing to put adequate security measures in place to prevent the unauthorized disclosure of private data belonging to Plaintiffs and similarly situated customers. According to the complaint, the Defendants claimed that they identified unusual activity in their network in April 2022. After an investigation, Elephant determined that information including names, driver's license information, and addresses may have been "viewed on or copied from our network." As a result of Defendants' failure to provide reasonable and adequate data security, Defendants violated state and federal law by improperly disclosing Plaintiffs' and the Class Members' personal information to unauthorized parties and/or entities, says the suit. Moreover, as a direct result of Defendants' acts and/or omissions, the unauthorized parties are already attempting to use the improperly disclosed information to commit identity theft and fraudulently open financial accounts in Plaintiffs' names. All Plaintiffs and Class Members are now at much higher risk of continued identity theft and for cybercrimes of all kinds, especially considering the highly valuable and sought-after private personal information stolen, and have suffered damages related to lost time, loss of privacy, and other harms, adds the suit. Elephant Insurance Company is licensed to do business and markets, sells, and underwrites automobile insurance policies in Georgia, Illinois, Indiana, Maryland, Ohio, Tennessee, Texas, and Virginia. The Company is a wholly-owned subsidiary of Admiral Group, PLC, a U.K. insurer.[BN] The Plaintiffs are represented by: Steven T. Webster, Esq. WEBSTER BOOK LLP 300 N. Washington Street, Suite 404 Alexandria, VA 22314 Telephone: (888) 987-9991 E-mail: swebster@websterbook.com - and - Kate M. Baxter-Kauf, Esq. Karen Hanson Riebel, Esq. Mauren Kane, Esq. Berg LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: kmbaxter-kauf@locklaw.com khriebel@locklaw.com mkberg@locklaw.com - and - Gayle M. Blatt, Esq. P. Camille Guerra, Esq. CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD, LLP 110 Laurel Street San Diego, CA 92101 Telephone: (619) 238-1811 Facsimile: (619) 544-9232 E-mail: gmb@cglaw.com camille@cglaw.com EOG RESOURCES: Wake Energy's Bid to Certify Class Denied as Moot ---------------------------------------------------------------- In the class action lawsuit captioned as WAKE ENERGY LLC v. EOG RESOURCES INC., Case No. 2:20-cv-00183-ABJ (D. Wyo.), the Hon. Judge Alan B. Johnson entered an order: 1. vacating agreed scheduling order; and 2. denying as moot the Plaintiff's motion to certify class. Wake Energy is an oil & natural gas company. EOG Resources is an American energy company engaged in hydrocarbon exploration. A copy of the Court's order dated July 13, 2022 is available from PacerMonitor.com at https://bit.ly/3IZjIXU at no extra charge.[CC] EQUIFAX INC: Faces Data Breach Suits in Canada ---------------------------------------------- Equifax Inc. disclosed in its Form 10-Q, filed with the Securities and Exchange Commission on July 21, 2022, that it is facing consumer suits with regards to a 2017 cybersecurity incident following a criminal attack on its systems that involved the theft of certain personally identifiable information of U.S., Canadian and U.K. consumers. Five putative Canadian class actions, four of which are on behalf of a national class of approximately 19,000 Canadian consumers, are pending against the company in Ontario, British Columbia and Alberta. Each of the proposed Canadian class actions asserts a number of common law and statutory claims seeking monetary damages and other related relief in connection with the 2017 cybersecurity incident. In addition to seeking class certification on behalf of Canadian consumers whose personal information was allegedly impacted by the 2017 cybersecurity incident, in some cases, plaintiffs also seek class certification on behalf of a larger group of Canadian consumers who had contracts for subscription products with Equifax around the time of the incident or earlier and were not impacted by the incident. On December 13, 2019, the court in Ontario granted certification of a nationwide class that includes all impacted Canadians as well as Canadians who had subscription products with Equifax between March 7, 2017 and July 30, 2017 who were not impacted by the incident. The company appealed one of the claims on which a class was certified and on June 9, 2021, and the appeal was granted by the Ontario Divisional Court. The plaintiff has since filed a notice of further appeal with the Ontario Court of Appeal, which was argued before the Court of Appeal in June 2022. All remaining purported class actions are at preliminary stages or stayed. Equifax collects, organizes and manages various types of financial, demographic, employment, criminal history and marketing information. Its products and services enable businesses to make credit and service decisions, manage their portfolio risk, automate or outsource certain payroll-related, tax and human resources business processes and develop marketing strategies concerning consumers and commercial enterprises. FAST PACE: Hutchinson Sues Over Healthcare Staff's Unpaid Wages --------------------------------------------------------------- CHRISTY HUTCHINSON, individually and on behalf of all others similarly situated, Plaintiff v. FAST PACE MEDICAL CLINIC PLLC d/b/a FAST PACE HEALTH, Defendant, Case No. 3:22-cv-00511 (M.D. Tenn., July 8, 2022) is a class action brought under the Fair Labor Standards Act to recover unpaid overtime wages for uncompensated hours worked that were excluded from the Plaintiff's paid hours pursuant to Defendant's automatic meal-break deduction policy, plus liquidated damages, reasonable attorneys' fees and costs. The complaint asserts that the Defendant violated federal law by implementing a company-wide policy of automatically deducting 30 minutes of pay per shift for "meal breaks" even though the workers worked through their shifts and did not receive bona fide meal breaks, and by paying overtime for 40 hours over in a workweek at rates that Defendant calculated without including the nondiscretionary quarterly bonuses the workers received, and which were thus lower than the overtime rates the workers were entitled to receive. From September 2020 through June 2, 2021, the Plaintiff worked for the Defendant as a clinical technician and from June 2, 2021, to July 3, 2021, she worked as a clinical technician and as a medical receptionist. Fast Pace Medical Clinic PLLC operates a network of 170+ healthcare centers in Tennessee, Kentucky, Louisiana, Mississippi, and Indiana that provide services such as urgent care, primary care, orthopedic services, behavioral health, dermatology, telehealth, on-site lab testing, and X-ray testing.[BN] The Plaintiff is represented by: Justin G. Day, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC First Tennessee Plaza 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (856) 247-0080 Facsimile: (865) 522-0049 E-mail: jday@milberg.com - and - Jason T. Brown, Esq. Nicholas Conlon, Esq. BROWN, LLC 111 Town Square Pl Suite 400 Jersey City, NJ 07310 Telephone: (877) 561-0000 Facsimile: (855) 582-5297 E-mail: jtb@jtblawgroup.com nicholasconlon@jtblawgroup.com FLAGSTAR BANCORP: Fails to Protect Customers' Info, Perkaj Says --------------------------------------------------------------- MICHAEL PERKAJ, individually, and on behalf of all others similarly situated, Plaintiff v. FLAGSTAR BANCORP, INC. and FLAGSTAR BANK, FSB, Defendants, Case No. 5:22-cv-11569-DML-CI (E.D. Mich., July 11, 2022) is a class action against the Defendants for negligence, negligence per se, breach of implied contract, bailment, unjust enrichment, declaratory judgment, and violations of the Michigan Consumer Protection Act, State Data Breach Statutes, and State Consumer Protection Statutes. According to the complaint, on December 3, 2021, and December 4, 2021, Flagstar's clients' sensitive personal data was compromised when unauthorized actors were able to breach Flagstar's network and access files containing approximately 1,547,169 individual's personally identifying information (PII). Despite the fact that many of the categories of PII exposed in the Data Breach, such as Social Security numbers, cannot be changed, Flagstar failed to provide notice of the Breach to Plaintiff and other individuals affected by the Data Breach until around June 17, 2022 -- more than two weeks after Flagstar claims to have realized that the Data Breach occurred, and more than six months after unauthorized individuals accessed Plaintiff's and Class members' highly sensitive PII stored on Flagstar's systems, says the suit. Accordingly, Plaintiff brings this action on behalf of all those similarly situated to seek relief from Flagstar's failure to reasonably safeguard Plaintiff's and Class members' PII; its failure to reasonably provide timely notification that Plaintiff's and Class members' PII had been compromised by an unauthorized third party; and for intentionally and unconscionably deceiving Plaintiff and Class members concerning the status, safety, location, access, and protection of their PII, the suit adds. Flagstar is a full-service, Michigan-based bank and mortgage lender operating 150 branches across the United States and holding over $23 billion in assets.[BN] The Plaintiff is represented by: Daniel O. Herrera, Esq. Nickolas J. Hagman, Esq. Olivia Lawless, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 135 S. LaSalle, Suite 3210 Chicago, IL 60603 Telephone: (312) 782-4880 Facsimile: (312) 782-4485 E-mail: dherrera@caffertyclobes.com nhagman@caffertyclobes.com olawless@caffertyclobes.com - and - Patrick E. Cafferty, Esq. CAFFERTYCLOBES MERIWETHER & SPRENGEL LLP 220 Collingwood Dr., Suite 130 Ann Arbor, MI 48103 E-mail: pcafferty@caffertyclobes.com FORD MOTOR: Michigan Court Allows Arbitration in Cunningham Suit ---------------------------------------------------------------- In the case, WILLIAM CUNNINGHAM, et al., Plaintiffs v. FORD MOTOR COMPANY, Defendant, Case No. 21-cv-10781 (E.D. Mich.), Judge Matthew F. Leitman of the U.S. District Court for the Eastern District of Michigan, Southern Division, grants Ford's motion to compel arbitration. I. Overview In this putative class action, four named Plaintiffs bring claims against Defendant Ford based upon an alleged defect in the tailgate latch release switch of their Ford vehicles. Ford has now moved to compel two Plaintiffs, Tri-State Collision, LLC and Joel Weiss, to arbitrate their claims. Ford argues that Tri-State and Weiss are required to arbitrate under the terms of Vehicle Retail Installment Contracts that Tri-State and Weiss entered into with the dealers who sold them their vehicles (the "Sales Contracts"). Tri-State and Weiss counter that the Court should not compel them to arbitrate their claims against Ford pursuant to the Sales Contracts because Ford is not a party to those contracts. While the question of whether a party to a civil action may be compelled to arbitrate is normally one for the Court to decide, that is not the case here. The arbitration provision in the Sales Contracts clearly delegates to the arbitrator the authority to decide questions of arbitrability. And under settled Sixth Circuit law, in light of that delegation, an arbitrator must decide whether Ford, as a non-party to the Sales Contracts, may compel Tri-State and Weiss to arbitrate their claims. Accordingly, Judge Leitman grants Ford's motion to compel arbitration and stays Tri-State's and Weiss' claims. II. Background In March of 2018, Tri-State "purchased a new 2018 F-250 truck from Money Ford in Abbeville, Alabama." On March 1, 2021, Weiss "purchased a new 2021 F-450 truck from Al Packer Ford in West Palm Beach, Florida." When Tri-State and Weiss purchased their trucks, they each signed a Sales Contract with the dealership that sold them their vehicles. The Weiss Sales Contract and the Tri-State Sales Contract are virtually identical. They describe, among other things, the price of the vehicles, the payment terms, and the responsibilities of the parties. Each Sales Contract also states that the selling dealership will "assign" its rights under the contract to Ford Motor Credit Company LLC (the "Assignment"). The Assignment provides that as the assignee, Ford Motor Credit "will then have all [the dealership's] rights, privileges, and remedies" under the Sales Contracts. Finally, both Sales Contracts include a provision allowing either party to compel arbitration of certain claims (the "Arbitration Provision"). The Arbitration Provision states in relevant part that it is "subject to the Federal Arbitration Act" (the "FAA"). Judge Leitman uses the term "Delegation Clause" to refer to the two italicized portions of the Arbitration Provision quoted above which, taken together, state that either party to the Sales Contract may elect to have "decided by arbitration" any "claims regarding the interpretation, scope, or validity of this provision, or arbitrability of any issue except for class certification. On April 7, 2021, Weiss, Tri-State, and two other named Plaintiffs filed a putative class action against Ford in the Court. According to the Plaintiffs, their vehicles suffer from a defect that causes their "tailgates to unintentionally open, including while their vehicles are in motion" (the "Tailgate Defect"). They say that the "Tailgate Defect presents a serious risk of harm to occupants and others sharing the road. The Plaintiffs bring several statutory and common-law claims against Ford arising out of the Tailgate Defect. On Nov. 24, 2021, Ford moved to compel Tri-State and Weiss to arbitrate their claims pursuant to the Arbitration Provision. Ford primarily argued that (1) the claims by Tri-State and Weiss fell within the Arbitration Provision and (2) it (Ford) could compel Tri-State and Weiss to arbitrate their claims even though it was not a party to their Sales Contracts. In a one-sentence footnote to its motion, Ford also argued in the alternative that in light of the Delegation Clause, an arbitrator, rather than the Court, should decide whether the claims by Tri-State and Weiss fell within the Arbitration Provision and whether Ford could enforce that provision. Weiss and Tri-State opposed Ford's motion. They insisted, among other things, that because Ford is not a party to the Sales Contracts (and thus, not a party to the Arbitration Provision), it could not compel arbitration. They also contended that the Court, not the arbitrator, should decide the question of arbitrability. Ford then filed a reply brief in which it argued at greater length that the arbitrator, rather than the Court, should decide whether Ford could enforce the Arbitration Provision and whether the claims by Tri-State and Weiss were subject to arbitration. The Court held a hearing on Ford's motion on June 15, 2022. At that hearing, the Court and the counsel spent a considerable amount of time discussing the issue of who should decide whether Ford could compel Tri-State and Weiss to arbitrate their claims. Following the hearing, in order to give both parties a full opportunity to weigh in on that issue, the Court ordered the parties to file supplemental briefs addressing in more detail Ford's argument that "the question of whether Ford may invoke the Arbitration Provision here is a question to be decided in the first instance by the arbitrator." The parties now have filed their supplemental briefs, and the Court is set to rule on the motion. III. Discussion A. Judge Leitman begins with a threshold question: Does the Arbitration Provision, through the Delegation Clause, delegate questions of arbitrability to the arbitrator? He agrees with Ford that it does. The Delegation Clause provides "clear and unmistakable evidence that the parties agreed to have an arbitrator decide" arbitrability. Moreover, the fact that the Delegation Clause expressly provides that only one type of claim -- a claim related to "class certification" -- need not be "decided by arbitration" underscores that all other claims, including those related to arbitrability, must be presented to an arbitrator. Weiss and Tri-State counter that there is not "clear and unmistakable" evidence of an intent to delegate questions of arbitrability to the arbitrator because "there is no stand-alone delegation clause" and because the Delegation Clause here is "subsumed within the same provision that requires arbitration." But they have not cited any decision from the Sixth Circuit or any other circuit court of appeals that holds a delegation clause must stand alone in order to "clearly and unmistakably" evidence an intent to delegate questions of arbitrability to an arbitrator. Judge Leitman concludes that the Delegation Clause provides clear and unmistakable evidence of an agreement to delegate questions of arbitrability to the arbitrator. B. Because the Delegation Clause delegates questions of arbitrability to the arbitrator, it is for the arbitrator, not the Court, to decide whether Ford, as a non-party to the Sales Contracts, may compel Tri-State and Weiss to arbitrate their claims. The Sixth Circuit's decision in Swiger v. Rosette, 989 F.3d 501, 505 (6th Cir. 2021), compels that conclusion. Just as in Swiger, the question of whether Ford, as a non-signatory to the Sales Contracts, may compel Tri-State and Weiss to arbitrate under the Arbitration Provisions of those contracts is a question of "arbitrability" that has been delegated to the arbitrator under the Delegation Clause. Judge Leitman therefore compels arbitration and allows the arbitrator to decide whether Ford may compel Tri-State and Weiss to arbitrate. Weiss and Tri-State respond that the Court should decide whether they should be compelled to arbitrate their claims against Ford because they never "agreed that Ford could enforce the Delegation Clause." But Swiger makes clear that under these circumstances -- i.e., where a plaintiff has signed a contract with an arbitration provision and a delegation clause and where a non-party to the contract seeks to compel the plaintiff to arbitrate claims that bear some relation to the contract -- the question is not whether the plaintiff specifically intended that the non-party could enforce the delegation clause. Rather, the sole question is whether the delegation clause clearly and unmistakably delegates questions of arbitrability to the arbitrator. Because the Delegation Clause in the case does plainly delegate questions of arbitrability to the arbitrator, the arbitrator must decide whether Tri-State's and Weiss' claims against Ford are subject to arbitration even though Ford is not a party to the Sales Contracts. C. Tri-State and Weiss offer one additional argument as to why, notwithstanding the Delegation Clause, the Court, rather than the arbitrator, should decide whether their claims against Ford are subject to arbitration. They insist that the Court must make that decision because they have specifically challenged the Delegation Clause. Judge Leitman disagrees. Tri-State and Weiss are correct that "the court, rather than the arbitrator, must address a challenge" to a delegation clause in an arbitration provision where the "validity" of that provision "is specifically challenged." But that rule does not help them because they have not challenged the "validity" of the Delegation Clause. While Tri-State and Weiss purport to specifically challenge the "validity" of the Delegation Clause, they do not actually mount a "validity" challenge. They do not contend that there is any general principle of contract law that precludes enforcement of the Delegation Clause. Their argument that the Delegation Clause fails to accomplish any delegation at all is not an attack on the "validity" of that clause. Thus, Tri-State and Weiss have not shown that they brought the type of "validity" challenge to the Delegation Clause that would permit the Court to decide whether their claims against Ford are subject to arbitration. D. Finally, Weiss and Tri-State argue that if the Court allows Ford, as a non-party to the Sales Contracts, to invoke the Delegation Clause, that would lead to the absurd result that any non-party to the Sales Contracts could invoke that clause and compel Weiss and Tri-State to arbitrate the claims they assert. In the words of Weiss and Tri-State, there would be no "limiting principle" that would prohibit any "non-party to the case" from "coming in and saying, 'I think this case should go to arbitration.'" The Sixth Circuit confronted the same argument in Blanton v. Domino's Pizza Franchising LLC, 962 F.3d 842, 851-52 (6th Cir. 2020) and rejected it. Judge Leitman, for all of the same reasons, is not persuaded by Weiss' and Tri-State's identical policy concern. IV. Conclusion For all of the reasons he explained, Judge Leitman concludes that the question of whether Ford may compel Weiss and Tri-State to arbitrate their claims is for an arbitrator to decide. He therefore grants Ford's motion to compel arbitration and stays Tri-State's and Weiss' claims against Ford. If an arbitrator ultimately determines that Ford may not compel arbitration, Tri-State and Weiss may file a motion in the action to lift the stay and proceed with the merits of their claims. If the arbitrator rules that Ford may compel arbitration, then at the conclusion of arbitration proceedings, Ford, Weiss, and/or Tri-State may file a motion to confirm or vacate the arbitrator's award or for other appropriate relief. A full-text copy of the Court's July 19, 2022 Order is available at https://tinyurl.com/nhefex8z from Leagle.com. FORD MOTOR: Simmons Seeks Reconsideration of Class Cert Order ------------------------------------------------------------- In the class action lawsuit captioned as CLARENCE SIMMONS, et al., v. FORD MOTOR COMPANY, Case No. 9:18-cv-81558-RAR (S.D. Cal.), the Plaintiffs file a motion for reconsideration of court's order denying class certification and order Plaintiffs' Design Defect Class and Unfair and Deceptive Warranty (Perforation) Class certified. Ford Motor Company is an American multinational automobile manufacturer headquartered in Dearborn, Michigan, United States. It was founded by Henry Ford and incorporated on June 16, 1903. The company sells automobiles and commercial vehicles under the Ford brand, and luxury cars under its Lincoln luxury brand. A copy of the Plaintiffs' motion dated July 15, 2022 is available from PacerMonitor.com at https://bit.ly/3J70O18 at no extra charge.[CC] The Plaintiffs are represented by: Mark J. Dearman, Esq. Eric S. Dwoskin, Esq. Alexander C. Cohen, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: (561) 750-3000 Facsimile: (561) 750-3364 E-mail: mdearman@rgrdlaw.com edwoskin@rgrdlaw.com acohen@rgrdlaw.com - and - Robert E. Gordon, Esq. Steven G. Calamusa, Esq. Daniel G. Williams, Esq. Rachel Bentley, Esq. GORDON & PARTNERS 4114 Northlake Blvd., Suite 200 Palm Beach Gardens, FL 33410 Telephone: (561) 799-5070 Facsimile: (561) 799-4050 E-mail: rgordon@fortheinjured.com scalamusa@fortheinjured.com dwilliams@fortheinjured.com rbentley@fortheinjured.com - and - James E. Cecchi, Esq. Caroline F. Bartlett, Esq. Michael A. Innes, Esq. Zachary S. Bower, Esq. Lindsey H. Taylor, Esq. CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Telephone: (973) 994-1700 Facsimile: (973) 994-1744 E-mail: jcecchi@carellabyrne.com cbartlett@carellabyrne.com minnes@carellabyrne.com zbower@carellabyrne.com ltaylor@carellabyrne.com - and - Adam M. Schachter, Esq. Christopher S. Sundby, Esq. GELBER SCHACHTER & GREENBERG, P.A. SunTrust International Center One Southeast Third Avenue, Suite 2600 Miami, FL 33131 Telephone: (305) 728-0950 Facsimile: (305) 728-0951 E-mail: aschachter@gsgpa.com csundby@gsgpa.com efilings@gsgpa.com FRANKLIN MINT: Du Brey Sues Over Illegal NSF and OD Fee Charges --------------------------------------------------------------- KEVIN DU BREY, SR, on behalf of himself and all others similarly situated, Plaintiff v. FRANKLIN MINT FEDERAL CREDIT UNION, Defendant, Case No. 220700587 (Pa. Com Pl., Philadelphia Cty., July 8, 2022) arises from the Defendant's routine practice of assessing two or more fees, including non-sufficient funds fees (NSF Fees) or overdraft fees (OD Fees) on a single item in violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. According to the complaint, the Defendant's improper scheme to extract funds from accountholders has victimized Plaintiff and thousands of other similarly situated consumers. Unless enjoined, FMFCU will continue to engage in this scheme and continue to cause substantial injury to its consumers, says the suit. Specifically, FMFCU breached its account documents with its accountholders by charging more than one $35 NSF Fee and/or OD Fee on the same item, since its contract explicitly stated -- and reasonable consumers understood -- that the same item can only incur a single NSF or OD Fee, the suit asserts. Franklin Mint Federal Credit Union offers financial products and services, wealth management and other banking services to its customers.[BN] The Plaintiff is represented by: Kenneth J. Grunfeld, Esq. GOLOMB SPIRT GRUNFELD, P.C. 1835 Market Street, Suite 2900 Philadelphia, PA 19103 Telephone: (215) 985-9177 E-mail: kengrunfeld@GolombLegal.com - and - Jeff Ostrow, Esq. Jonathan M. Streisfeld, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT One W. Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 Facsimile: (954) 525-4300 E-mail: ostrow@kolawyers.com streisfeld@kolawyers.com - and - Jeffrey D. Kaliel, Esq. Sophia Gold, Esq. KALIEL GOLD PLLC 1100 15th Street NW, 4th Floor Washington, DC 20005 Telephone: (202) 350-4783 E-mail: jkaliel@kalielpllc.com sgold@kalielgold.com FREEDOM MORTGAGE: Bernasconi Sues Over Unsolicited Sales Calls -------------------------------------------------------------- MICHAEL BERNASCONI, individually and on behalf of all others similarly situated, Plaintiff v. FREEDOM MORTGAGE CORPORATION, Defendant, Case No. CACE-22-009935 (Fla. Cir., 17th Judicial, Broward Cty., July 8, 2022) is a class action brought by the Plaintiff under the Florida Telephone Solicitation Act against the Defendant for engaging in telephonic sales calls without having secured prior express written consent. According to the complaint, the Plaintiff never signed any type of authorization permitting or allowing the placement of a telephonic sales call by text message using an automated system for the selection and dialing of telephone numbers. The Defendant's alleged telephonic sales calls have caused Plaintiff and similarly situated consumers harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy, says the suit. Freedom Mortgage Corporation is a mortgage lender and mortgage broker with primary place of business and headquarters in Boca Raton, Florida.[BN] The Plaintiff is represented by: Michael Eisenband, Esq. EISENBAND LAW, P.A. 515 E. Las Olas Boulevard, Suite 120 Ft. Lauderdale, FL 33301 Telephone: (954) 533-4092 E-mail: MEisenband@Eisenbandlaw.com - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com FUNNY FACE BAKERY: Martinez Files ADA Suit in E.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Funny Face Bakery, Inc. The case is styled as Pedro Martinez, individually and as the representative of a class of similarly situated persons v. Funny Face Bakery, Inc., Case No. 1:22-cv-04189 (E.D.N.Y., July 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Funny Face Bakery, Inc. -- https://funnyfacebakery.com/ -- is a pop culture bakery based in NYC specializing in hand painted portrait cookies and meme-worthy sweets.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com GAME ON SPORTS: Toro Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Game On Sports, Inc. The case is styled as Jasmine Toro, on behalf of herself and all others similarly situated v. Game On Sports, Inc., Case No. 1:22-cv-06094-PGG-GWG (S.D.N.Y., July 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Game on Sports Inc. provides social and recreational sports organization. The Organization offers events and leagues such as basketball, curling, darts, dodge ball, touch football, floor hockey, golf, kickball, soccer, softball, and volleyball.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: marskhaimovlaw@gmail GAMEOLOGY LLC: Toro Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Gameology, LLC. The case is styled as Jasmine Toro, on behalf of herself and all others similarly situated v. Gameology, LLC, Case No. 1:22-cv-06099 (S.D.N.Y., July 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Gameology -- https://gameologygames.com/ -- is a popular online game store.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: marskhaimovlaw@gmail GEICO CASUALTY: Bid to Hold Class Cert Order in Abeyance Filed -------------------------------------------------------------- In the class action lawsuit captioned as CARLA WRIGHT, Individually and on behalf of others similarly situated, v. GEICO CASUALTY COMPANY, Case No. 3:20-cv-00823-BAJ-SDJ (M.D. La.), the Parties file a joint motion requesting that the Court hold in abeyance any orders on the Plaintiff's motion for class certification until August 31, 2022, as the Parties are presently engaged in substantive settlement negotiations. On December 12, 2021, the Plaintiff Wright filed a Motion for Class Certification, which was fully briefed on April 1, 2022. Geico Casualty operates as an insurance company. A copy of the Parties' motion dated July 14, 2022 is available from PacerMonitor.com at https://bit.ly/3PxTcau at no extra charge.[CC] The Plaintiff is represented by: Amy L. Judkins, Esq. Edmund A. Normand, Esq. NORMAND PLLC 3165 McCrory Place, Suite 175 Orlando, FL 32803 Telephone: (407) 603-6031 Facsimile: (888) 974-2175 E-mail: ed@ednormand.com amy.judkins@normandpllc.com ean@normandpllc.com - and - Stephen J. Herman, Esq. Soren E. Gisleson, Esq. John S. Creevy, Esq. Charles M. King, Esq. HERMAN & KATZ, LLC 820 O'Keefe Avenue New Orleans, LA 70113 Telephone: (504) 581-4892 Facsimile: (504) 561-6024 E-mail: sherman@hhklawfirm.com sgisleson@hhklawfirm.com jcreevy@hhklawfirm.com cking@hhklawfirm.com - and - Christopher B. Hall, Esq. HALL & LAMPROS, LLP 400 Galleria Parkway, Suite 1150 Atlanta, GA 30339 Telephone: (404) 876-8100 Facsimile: (404) 876-3477 E-mail: chall@hallandlampros.com The Defendant is represented by: Kymberly Kochis, Esq. Alexander P. Fuchs, Esq. EVERSHEDS SUTHERLAND (US) LLP 1114 Avenue of the Americas The Grace Building, 40th Floor New York, NY 10036 Telephone: (212) 389-5068 Facsimile: (212) 389-5099 E-mail: kymkochis@eversheds-sutherland.com - and - Stephen R. Barry, Esq. Daphne P. McNutt, Esq. W. Briggs Scott, Esq. BARRY & CO., LLC 612 Gravier Street New Orleans, LA 70130 Telephone: (504) 525-1101 Facsimile: (504) 525-1909 E-mail: sbarry@barrylawco.com dmcnutt@barrylawco.com bscott@barrylawco.com GETIR US: Fails to Pay Packers Proper Wages, Brooks Says -------------------------------------------------------- TYRE BROOKS, JOY KIASHA BELL and SAMUEL MACK, individually and on behalf of all others similarly situated, Plaintiffs v. GETIR US INC., Defendant, Case No. 1:22-cv-04020 (E.D.N.Y., July 8, 2022) arises from the Defendant's unlawful labor practices in violation of the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Representative Plaintiffs and the Class Members were denied minimum wage compensation, "gap time" compensation, and overtime premium compensation as a result of Defendant's policies and practices, including requiring the Representative Plaintiffs and Class Members to work "off-the-clock" during their unpaid meal breaks, applying an unlawful time rounding policy and failing to properly calculate regular rates of pay. The suit is also brought due to Defendant's failure to pay uniform maintenance pay, unlawful time rounding and unlawful practice of failing to keep accurate records of hours Plaintiffs actually worked and failing to provide Plaintiffs with wage notices and accurate wage statements reflecting all hours, including overtime hours worked, says the suit. Plaintiff Brooks was employed as a packer at Defendant's grocery store in Brooklyn, New York, from February 12, 2022 to May 23, 2022. Plaintiff Bell was employed as a packer at Defendant's grocery stores in Manhattan and Bushwick, New York, from December 7, 2021 to June 6, 2022. Plaintiff Mack was employed as a packer at Defendant's grocery store in Bushwick, New York, from December 2021 to March 2022. Getir US Inc. offers an on-demand delivery services for grocery items and a courier service for restaurant food deliveries.[BN] The Plaintiffs are represented by: Brendan Sweeney, Esq. Hajar Hasani, Esq. THE LAW OFFICE OF CHRISTOPHER Q. DAVIS, PLLC 80 Broad Street, Suite 703 New York, NY 10004 Telephone: (646) 430-7930 E-mail: bsweeney@workingsolutionsnyc.com hhasani@workingsolutionsnyc.com GIFTROCKET INC: Gracie Baked Sues Over Unauthorized Gift Cards -------------------------------------------------------------- GRACIE BAKED LLC and WECARE RG, INC., on behalf of themselves and all others similarly situated, Plaintiffs v. GIFTROCKET, INC., Defendant, Case No. 1:22-cv-04019 (E.D.N.Y., July 8, 2022) is a class action brought under Section 43 of the Lanham Act for false affiliation and false advertising, Sections 349 and 350 of New York General Business Law, and the common law of unfair competition after the Defendant profited from the unauthorized use of Plaintiffs' and the putative class members' trade names and good will. According to the complaint, Defendant GiftRocket operates a website that ostensibly sells gift cards to any business in the United States. GiftRocket lists many tens of thousands of businesses on GiftRocket.com without notifying these businesses or obtaining their consent. GiftRocket uses the names and goodwill of these businesses to sell what is an expensive money transfer service dressed up as a way to send "gift cards." The gift recipient does not receive an actual gift card that can be used at the business it is intended for. In other words, instead of an actual gift card that can be used at the business it was intended for, the gift recipient merely receives money. And the gift giver pays GiftRocket for the convenience, says the suit. To illustrate, GiftRocket's website offers consumers the option to purchase a GiftRocket Prepaid Gift for Plaintiff Gracie Baked. But this Prepaid Gift cannot be used at Plaintiffs' businesses. The Plaintiffs have no affiliation with GiftRocket and never agreed to be listed on GiftRocket's website or allowed GiftRocket to sell gift cards in their names, the suit asserts. Gracie Baked is a Brooklyn, New York City-based bakery that sells specialty desserts.[BN] The Plaintiffs are represented by: Raphael Janove, Esq. Adam Pollock, Esq. Alison Borochoff-Porte, Esq. POLLOCK COHEN LLP 111 Broadway, Suite 1804 New York, NY 10006 Telephone: (212) 337-5361 E-mail: Rafi@PollockCohen.com Adam@PollockCohen.com Alison@PollockCohen.com GLOBAL MOTIVATION: Muccio Sues Over Unsolicited Text Messages ------------------------------------------------------------- STEPHEN MUCCIO, individually and on behalf of all others similarly situated, Plaintiff v. GLOBAL MOTIVATION, INC., and JORDAN R. BELFORT, Defendants, Case No. 9:22-cv-81004 (S.D. Fla., July 11, 2022) is a putative class action pursuant to the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act, arising from the Defendants' engagement in unsolicited text messaging to Plaintiff and to those who have not provided Defendants with their prior express written consent. The complaint alleges that the purpose of Defendants' telephonic sales calls was to solicit the sale of Defendants' goods and/or services. The text message solicitations sent to Plaintiff and the putative class members were sent for the benefit of and to generate revenue for Defendants, says the suit. Through this action, the Plaintiff seeks an injunction and statutory damages on behalf of himself and the Class members, and any other available legal or equitable remedies resulting from the unlawful actions of Defendants, the suit added. Global Motivation, Inc. is, and at all times relevant hereto was, a foreign corporation and a "telephone solicitor" as defined by Fla. Stat. Section 501.059(f). Global Motivation maintains its primary place of business and headquarters in Beverly Hills, California.[BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com - and - Jibrael S. Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street Suite 1744 Ft. Lauderdale, FL 33301 GRAPEVINE OF NORTH CAROLINA: FLSA Collective Action Sought ---------------------------------------------------------- In the class action lawsuit captioned as AKARI H. GLYMPH-DOZIER and SOLOMON HILL, on behalf of themselves and all other similarly situated persons, v. GRAPEVINE OF NORTH CAROLINA, INC. d/b/a GRAPEVINE DISTRIBUTORS OF THE CAROLINAS, and SCOTT A. COHEN, Case No. 1:21-cv-00748-CCE-JEP (M.D.N.C.), the parties seek an order for conditional certification of a class action under the North Carolina Wage and Hour Act ("NCHWA") and overlapping Fair Labor Standards Act ("FLSA") collective action, a second separate class action under South Carolina Payment of Wages Act ("SCPWA") pursuant Rule 23(b)(3) of the Federal Rules of Civil Procedure, and conditionally certifying two separate collective actions under the FLSA, 29 U.S.C. section 216(b), for purposes of settlement of the class action and FLSA collective action claims between the two Plaintiffs, Class and Collective Action Members, and Defendants. In particular, the parties move the Court, pursuant to 29 U.S.C. section 216(b) and Federal Rule of Civil Procedure 23(b)(3), to certify a NCWHA class and to conditionally certify a FLSA collective action for those workers employed by Grapevine in North Carolina that is, with the exception of the consent requirement of 29 U.S.C. section 216(b), materially identical to the NCWHA class that the Plaintiffs seek to represent and is defined as follows: "All employees of Defendant Grapevine who performed hours worked of more than 40 hours in the same workweek in North Carolina (i) when that work included work as a delivery driver, transfer driver, driver's helper, loader, and/or mechanic as defined in 29 C.F.R. Part 782 in Grapevine's mixed vehicle fleet for any workweek ending in the two chronological years preceding September 25, 2021 or (ii) who were employed by Grapevine during that same time period to the Class Notice and/or employees during that same time frame who experienced unauthorized wage deductions for employer- required company uniforms or alleged breakage of wine products." Second, the parties move the Court, pursuant to Federal Rule of Civil Procedure 23(b)(3), to certify a SCPWA class represented by Plaintiff Solomon Hill for those workers employed by Grapevine in South Carolina that is defined as follows: "All employees of Defendant Grapevine who performed hours worked of more than 40 hours in the same workweek in South Carolina (i) when that work included work as a delivery driver, transfer driver, driver's helper, loader, and/or mechanic as defined in 29 C.F.R. Part 782 in Grapevine's mixed vehicle fleet for any workweek ending in the three chronological years preceding September 25, 2021 or (ii) who were employed by Grapevine during that same time period." Third, the parties also move the Court, pursuant to 29 U.S.C. section 216(b), to conditionally certify a proposed separate one year FLSA collective action for those employees who were employed by Grapevine in North Carolina as follows: "All employees of Defendant Grapevine who performed hours worked of more than 40 hours in the same workweek in North Carolina (i) when that work included work as a delivery driver, transfer driver, driver's helper, loader, and/or mechanic as defined in 29 C.F.R. Part 782 in Grapevine's mixed vehicle fleet for any workweek that occurred in whole or in part in the time period starting with September 25, 2018 and ending with September 24, 2019 or (ii) who were employed by Grapevine during that same time period." Fourth, the parties further move the Court, pursuant to 29 U.S.C. section 216(b), to conditionally certify a proposed separate three-year FLSA collective action for those employees who were employed by Grapevine in South Carolina as follows: "All employees of Defendant Grapevine who performed hours worked of more than 40 hours in the same workweek in South Carolina (i) when that work included work as a delivery driver, transfer driver, driver's helper, loader, and/or mechanic as defined in 29 C.F.R. Part 782 in Grapevine's mixed vehicle fleet for any workweek that occurred in whole or in part in the time period starting with September 25, 2018 and ending with September 25, 2021 or (ii) who were employed by Grapevine during that same time period." A copy of Parties' motion dated July 13, 2022 is available from PacerMonitor.com at https://bit.ly/3PwXcrM at no extra charge.[CC] The Plaintiffs are represented by: Robert J. Willis, Esq. LAW OFFICE OF ROBERT J. WILLIS, P.A. Pittsboro, NC 27312 Telephone: (919) 821-9031 Facsimile: (919) 821-1763 E-mail: rwillis@rjwillis-law.com - and - Chris W. Haaf, Esq. CHRIS HAAF LAW PLLC N.C. State Bar No. 46077 2806 Reynolda Road No. 123 Winston-Salem, NC 27106 Telephone: 336-354-7643 E-mail: chris@haaflegal.com The Defendants are represented by: J. Alexander S. Barrett, Esq. Kurt A. Seeber, Esq. HAGAN BARRETT PLLC 300 N. Greene Street, Suite 200 Greensboro, NC 27401 Telephone: (336) 232-0650 Facsimile: (336) 232-0651 E-mail: abarrett@haganbarrett.com kseeber@haganbarrett.com GREEN POGO: Third Circuit Reverses Order Dismissing Adam Class Suit ------------------------------------------------------------------- In the case, CINDY ADAM, individually and on behalf of all others similarly situated, Appellant v. FRANK V. BARONE; KIRILL CHUMENKO; GREEN POGO LLC (Delaware); GREEN POGO LLC (New Jersey); NATURAL BEAUTY LINE LLC; VEGAN BEAUTY LLC; IMPROVED NUTRACEUTICALS LLC; FORTERA NUTRA SOLUTIONS LLC; ADVANCED BEAUTY LLC, Case No. 21-2092 (3d Cir.), the U.S. Court of Appeals for the Third Circuit reversed the District Court's order dismissing Adam's complaint. I. Introduction Ms. Adam was charged nearly $100 for what she believed were free samples of beauty products. After complaining about the charge, she was offered the chance to return the items so that she might obtain a refund. Adam refused and eventually filed the lawsuit. The U.S. District Court for the District of New Jersey dismissed her complaint, concluding that she lacked standing because she refused Defendants' offer of a refund in the ordinary course of business. The Third Circuit disagrees. II. Background In August 2017, Adam came across an advertisement for free samples of "Nuvega Lash" beauty products. The advertisement implied that she need only pay shipping and handling. So Adam ordered two free samples and purchased a third item. She was consequently charged: $4.99 for the first sample's shipping; $4.95 for the second sample's shipping; and $14.99 for the purchased item. Adam does not take issue with any of these charges; she expected all of them. Soon thereafter, Adam was unexpectedly charged $94.97. That charge was reversed, but on that same day, Adam was also charged $92.94. That unexpected charge resulted in an overdraft of her checking account, leading to a $34 bank fee. It was only her entitlement to an annual overdraft-forgiveness opportunity that allowed her to avoid paying the fee. But the $92.94 charge remained. Ms. Adam called the company that marketed and sent her Nuvega Lash products, allegedly Defendant Fortera Nutra Solutions LLC. The customer service representative told Adam during that phone call that "she had agreed at the time of purchase to pay the full amount that she had been charged if she kept the 'free samples.'" Adam responded that she did not agree -- and would not have agreed -- to such an arrangement. She asked to speak to a manager during the phone call, but one was never made available to her. The representative told Adam that she would need to return the items before any refunds could be issued. But Adam, not trusting the company that she believed was trying to scam her out of nearly $100, refused to return the items. In the midst of this, Adam called her bank and contested the $92.94 charge as fraudulent. Her bank temporarily reversed the charge but ultimately reinstated it, concluding that it was legitimate. Adam contends that her bank was misled by Defendants' "false-front scheme" and that the charge would have been reversed but for their misrepresentations. Ms. Adam then filed a putative class-action suit in the U.S. District Court for the Northern District of California, which transferred the case to the District of New Jersey on the Defendants' motion. The operative complaint, filed in May 2020, alleges violations of (or conspiracy to violate or aiding and abetting violation of): multiple California laws; the Electronic Fund Transfer Act, 15 U.S.C. Sections 1693-1693r; the RICO Act, 18 U.S.C. Sections 1961-1968; and various consumer protection laws, all on behalf of a nationwide class. In October 2020, Defendants moved to dismiss Adam's claims pursuant to Federal Rule of Civil Procedure 12(b)(1) & (6). The District Court concluded the action was non-justiciable and granted Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). The timely appeal followed. III. Discussion The familiar inquiry into Adam's standing shows she had a basis for initiating her lawsuit. "To establish Article III standing, a plaintiff must have '(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.'" In this analysis, the Third Circuit is limited to "a screening for mere frivolity" -- "it must carefully 'separate its standing inquiry from any assessment of the merits of the plaintiff's claim.'" The Third Circuit holds that the District Court did not explicitly conduct such a screening, but Adam's complaint satisfies all three standing elements. First, Adam's allegations do establish that she has actually suffered the concrete and particularized harm of having nearly $100 taken from her. Consequently, Adam has alleged an injury in fact sufficient to satisfy the first element of standing. Second, while Adam will have to do more to establish causation at the merits stage, her allegations satisfy the traceability requirement of standing. Third and finally, the District Court could provide redress for Adam's financial harm by, for example, ordering Defendants to pay restitution, as requested in the complaint. For these reasons, Adam has shown all three elements of standing by alleging that the Defendants' actions caused her a financial harm of $92.94. Having done so, she has established that resolving the present action is within the federal courts' constitutional authority to adjudicate cases and controversies. And because the parties identify no intervening circumstance arising after the lawsuit was filed that would deprive Adam of a "personal stake in the outcome of the lawsuit," the claim should not have been dismissed as moot. The District Court thus erred in dismissing her claims. IV. Conclusion Cindy Adam had standing to bring her claims regardless of the Defendants' unaccepted offer to provide a refund before litigation commenced. Accordingly, the District Court's May 31, 2021 order is reversed and the matter is remanded for further proceedings consistent with the Opinion. A full-text copy of the Court's July 19, 2022 Opinion is available at https://tinyurl.com/2p95uafm from Leagle.com. Alexander C. Covey -- cyclone@kneuppercovey.com -- Kneupper & Covey, 4475 Peachtree Lakes Drive, in Berkeley Lake, Georgia 30096. Bruce D. Greenberg -- bgreenberg@litedepalma.com -- Lite DePalma Greenberg & Afanador, 570 Broad Street, Suite 1201, in Newark, New Jersey 07102, Counsel for the Appellant. Joshua S. Bauchner -- jb@ansellgrimm.com -- Anthony J. D'Artiglio -- ajd@ansellgrimm.com -- Ansell Grimm & Aaron, 365 Rifle Camp Road, in Woodland Park, New Jersey 07424, Counsel for the Appellees. GREENSKY MANAGEMENT: Wright Must File Class Cert Bid by Sept 19 --------------------------------------------------------------- In the class action lawsuit captioned as Wright v. GreenSky Management Company, LLC, et al., Case No. 0:20-cv-62441 (S.D. Fla.), the Hon. Judge Beth Bloom entered an order on motion for extension of time as follows: -- The deadline for completing class certification discovery and class expert reports is amended to September 5, 2022. -- The deadline for Plaintiffs to file a motion for class certification is amended to September 19, 2022. -- All other deadlines remain in place. The nature of suit states Contract -- Negotiable Instrument.[CC] GREENWICH HOTEL: Hanyzkiewicz Files ADA Suit in E.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Greenwich Hotel Management, LLC, et al. The case is styled as Marta Hanyzkiewicz, on behalf of herself and all others similarly situated v. Greenwich Hotel Management, LLC, Greenwich Hotel Restaurant, LLC, Case No. 1:22-cv-04213 (E.D.N.Y., July 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Greenwich Hotel Management -- https://www.thegreenwichhotel.com/ -- is a luxury 5 star New York wellness hotel in Tribeca in downtown Manhattan.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com GUDRUN SJODEN US: Iskhakova Files ADA Suit in E.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Gudrun Sjoden US, Inc. The case is styled as Marina Iskhakova, on behalf of herself and all others similarly situated v. Gudrun Sjoden US, Inc., Case No. 1:22-cv-04219 (E.D.N.Y., July 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Gudrun Sjoden -- https://www.gudrunsjoden.com/ -- creates fashion and home textiles in completely unique designs.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com HANDI-FOIL CORP: Osdoby Files Suit in E.D. New York --------------------------------------------------- A class action lawsuit has been filed against Handi-foil Corp. The case is styled as Merryl Osdoby, on behalf of herself and others similarly situated v. Handi-foil Corp., Case No. 2:22-cv-04199-NG-JMW (E.D.N.Y., July 18, 2022). The nature of suit is stated as Fraud or Truth-In-Lending. Handi-foil Corporation -- https://www.handi-foil.com/ -- is a privately owned manufacturer of recyclable aluminum products committed to quality, convenience and innovation.[BN] The Plaintiff is represented by: Robert L. Kraselnik, Esq. LAW OFFICES OF ROBERT L. KRASELNIK, PLLC 10 Byron Place, Ste. #402 Larchmont, NY 10538 Phone: (646) 342-2019 Email: robert@kraselnik.com HEALTH CARE: Bids for Summary Judgment in Homeland Suit Granted --------------------------------------------------------------- In the case, HOMELAND INSURANCE COMPANY OF NEW YORK, Plaintiff v. HEALTH CARE SERVICE CORP., d/b/a BLUE CROSS BLUE SHIELD OF ILLINOIS, d/b/a BLUE CROSS BLUE SHIELD OF NEW MEXICO, d/b/a BLUE CROSS BLUE SHIELD OF OKLAHOMA, d/b/a BLUE CROSS BLUE SHIELD OF TEXAS, Defendant, Case No. 18 C 6306 (ND. Ill.), Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order: a. granting HCSC's motion to take judicial notice; b. granting Homeland's summary judgment motion with respect to the Related Claims provision as to the MDL's Provider Track and denying as to the MDL's Subscriber Track with respect to the Related Claims provision; c. granting HCSC's summary judgment motion as to the Subscriber Track and denying as to the Provider Track; d. granting HCSC's summary judgment motion with respect to the Prior and Pending exclusion as to the Subscriber Track and denying as to the Provider Track; e. denying Homeland's summary judgment motions with respect to the Cooperation and Exhaustion provisions; and f. granting HCSC's summary judgment motions. I. Overview Homeland Insurance Co. of New York seeks in this diversity suit a declaratory judgment that Health Care Service Corp. ("HCSC"), its insured, is not entitled to coverage in several lawsuits consolidated for pretrial proceedings in the MDL styled In re Blue Cross Blue Shield Antitrust Litigation, MDL 2406, Master File No. 2:13-cv-20000-RDP (N.D. Ala.). The complaint alleges that coverage is barred under the Homeland policy's Related Claims, Cooperation, and Exhaustion provisions, and its Prior and Pending exclusion. With discovery complete, the parties cross-move for summary judgment as to the Related Claims, Cooperation, and Exhaustion provisions, and HCSC moves for summary judgment as to the Prior and Pending exclusion. And HCSC moves the court to take judicial notice of several publicly available court filings. HCSC's motion to take judicial notice is granted. With respect to the Related Claims provision, Homeland's summary judgment motion is granted as to the MDL's Provider Track and denied as to the MDL's Subscriber Track, and HCSC's summary judgment motion is granted as to the Subscriber Track and denied as to the Provider Track. With respect to the Prior and Pending exclusion, HCSC's summary judgment motion is granted as to the Subscriber Track and denied as to the Provider Track. With respect to the Cooperation and Exhaustion provisions, Homeland's summary judgment motions are denied, and HCSC's summary judgment motions are granted. All told, on summary judgment, the court declares that Homeland has no coverage obligation to HCSC as to the Provider Track, but makes no such declaration as to the Subscriber Track. II. Background A. The Love Litigation In 2003, healthcare providers sued the Blue Cross Blue Shield Association and several Blue Cross and/or Blue Shield entities, including HCSC, in Thomas v. Blue Cross & Blue Shield Association, Case No. 1:03-cv-21296 (S.D. Fla.), a class action alleging that the Blue Plans and the Association engaged in a "common scheme to systemically deny, delay and diminish the payments due to physicians," in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Section 1961 et seq. In 2007, HCSC settled the claims against it. Other Blue Plans remained as defendants, and the case later was restyled Love v. Blue Cross & Blue Shield Association. At the time HCSC settled, the operative complaint was the fifth amended complaint. That complaint alleged that the defendants engaged in a "common scheme" to "deny, delay and diminish" payments to providers, and that they effectuated that scheme by "covertly denying payments to physicians" based on cost rather than medical necessity, by "processing physicians' bills using automated programs which manipulate standard coding practices to artificially reduce the amount the physicians are paid, and by systematically delaying payments." It further alleged that the Blue Plans "controlled a large percentage of the subscribers and providers in the managed care market in most states and in some local areas," and that they perpetuated the scheme by "using their overwhelming economic power and market dominance to coerce physicians, at the risk of being denied patient referrals and/or 'black-listed' altogether, into providing care under Defendants' policies and practices on a 'take it or leave it' basis." After HCSC settled, the Love plaintiffs filed a sixth amended complaint. That complaint added the allegation that the Blue Plans "are not competitors; rather they are all licensees of the Association who operate in distinct geographical regions." The complaint further alleged that each Blue Plan was required to participate in the BlueCard program, through which members of any given Blue Plan -- the "home plan" -- could access the services of physicians providing care under Blue Plans in other States -- the "host plans" -- at the discounted rate negotiated by the host plan. As a result, the complaint alleged, the Blue Plans "collectively insured over 100 million patients, or about one in three Americans. Because this was such a large pool of patients, the Blue Plans were able to perpetuate the scheme through their combined economic power and market dominance," including by "coercing physicians, at the risk of being denied patient referrals and/or 'black-listed' altogether, into providing care under Defendants' policies." Neither the fifth amended complaint nor the sixth amended complaint in Love brought antitrust claims. B. The MDL Action In 2012, several antitrust class actions were filed against the Association, HCSC, and several other Blue Plans. The Judicial Panel on Multidistrict Litigation consolidated many of the suits in the Northern District of Alabama, creating the In re Blue Cross Blue Shield Antitrust Litigation MDL ("MDL Action"). The consolidated suits were divided into a Subscriber Track and a Provider Track. The Subscriber Track Plaintiffs are "individuals or entities that are covered under a health insurance plan issued by a Blue Plan," and the Provider Track Plaintiffs are "health care providers who render services to the Blue Plans' subscribers." The Subscriber and Provider Tracks have separate consolidated complaints; the operative complaint in each is the fourth amended complaint. Both the Subscriber and Provider complaints allege that the Blue Plans, in collaboration with the Association, conspired to restrain competition among themselves, in violation of federal antitrust law. Specifically, the complaints allege that the Blue Plans entered into licensing agreements in which each Blue Plan agreed not to compete with other Blue Plans outside of their exclusive service areas ("ESA"). The Provider complaint further alleges that the Blue Plans fix the prices they pay to providers and boycott providers outside their ESAs. According to the Provider complaint, the decreased competition resulting from the Blue Plans' ESA, price fixing, and boycotting conspiracies allows them to "leverage their collective market power to impose deep discounts on reimbursements to providers," resulting in reduced compensation for providers. The Provider complaint further alleges that the price-fixing and boycott conspiracy is enabled by each Blue Plan's participation in the BlueCard program. The Subscriber complaint alleges that the Blue Plans' ESA conspiracy -- that is, their agreement to "allocate markets" -- results in higher healthcare premium costs for subscribers. The Provider and Subscriber complaints are "related claims" under the Related Claims provisions of HCSC's Homeland policy and its policy (of which more in a moment) with a different insurer, Allied World Surplus Lines Insurance Company. HCSC reported to Allied World as a single claim all actions consolidated in the MDL and paid Allied World a single retention fee for those actions, and Allied World agreed to treat all of those actions as a single claim. C. The Musselman Litigation In 2013, in Musselman v. Blue Cross Blue Shield of Alabama, 1:13-cv-20050-FAM (S.D. Fla.), healthcare providers who had settled with HCSC in Love sued several Blue Plans, including HCSC, seeking a declaration that they could participate in the MDL's Provider Track despite being "releasing parties" in the Love settlement. The Love settlement included a release of "any and all causes of action that are, were, or could have been asserted against any of the defendants by reason of, arising out of, or in any way related to any of the facts, acts, events, transactions, occurrences, courses of conduct, business practices, representations, omissions, circumstances, or other matters referenced in the Love Action," and it prohibited the releasing parties from pursuing any such actions. The Blue Plans, including HCSC, moved to dismiss Musselman on the ground that the antitrust claims asserted in the MDL Action were "released claims" within the meaning of the Love settlement. The defendants cited both the fifth amended and sixth amended complaints in Love. The district court dismissed the suit, holding that the providers were precluded from joining the MDL Action because the Provider complaint's claims "arise out of and relate to the 'facts, acts, events or other matter' in Love," as "both complaints are based on allegations that Defendants, acting through the Association, conspired to reduce provider reimbursement." Defending the judgment on appeal, the Blue Plans, including HCSC, argued that the MDL Provider complaint asserted claims involving "numerous allegations" made in Love relating to "geographic limitations," "coercive use of market power," the Association, and the BlueCard program. In addition, the Blue Plans argued that the conspiracy alleged in the Provider complaint "involves the same mechanisms as the conspiracy alleged in Love," observing that both conspiracies were alleged to have been "implemented through the Association" and that the BlueCard program was alleged to play an "integral part" in both. As they had done in the district court, the Blue Plans on appeal cited in support both the fifth amended and sixth amended complaints in Love. D. HCSC's Insurance Policies HCSC holds three insurance policies, relevant to this coverage litigation, for the policy period Jan. 1, 2012 through Jan. 1, 2013: a primary Managed Care Errors & Omissions ("E&O") Liability Insurance Policy issued by Allied World; a first-layer excess E&O policy issued by Travelers Excess and Surplus Lines Company; and a second-layer excess E&O policy issued by Homeland. The Homeland policy is a "follow form excess policy," meaning that it incorporates, with certain exceptions, the Allied World and Travelers policies' terms and conditions. One key exception is that the Homeland policy does not follow form to the underlying policies "with respect to any provisions to the contrary contained in the Homeland Policy." None of the policies are "duty to defend" policies; rather, under all three, HCSC must defend itself against claims, and the insurer promises only to pay for any resulting "insured loss which HCSC is legally obligated to pay." The Allied World policy has a retention fee of $10 million and provides $20 million in coverage; the Travelers policy provides another $20 million in coverage; and the Homeland policy provides a further $20 million in coverage. E. Allied World Litigation and Settlement In 2017, Allied World filed Allied World Surplus Lines Insurance Co. v. Health Care Service Corporation, 17 C 2480 (N.D. Ill.), seeking a declaration that its policy provided no coverage to HCSC in the MDL Action. In April 2018, HCSC and Allied World attended a mediation session along with Homeland, which was not a party to that suit. Homeland was excluded from subsequent settlement negotiations. HCSC eventually entered into a settlement agreement with Allied World and Travelers. HCSC refuses to provide the settlement agreement to Homeland, whether in discovery in the present suit or otherwise. F. MDL Litigation Defense Updates Since 2017, Homeland has elected to "associate" in HCSC's defense of the MDL Action, as its policy entitles it to do. Between February 2014 and September 2020, Homeland sent HCSC numerous letters requesting information about the MDL Action, including defense costs and expenses, a "liability and damages analysis," an allocation of any proposed settlement among the Blue Plans and the Association, summaries of depositions, and a "Litigation Plan." HCSC has not provided Homeland with deposition summaries, full copies of its defense invoices, or an evaluation of its individual potential liability and exposure in the MDL Action. HCSC has, however, provided Homeland with, among others, litigation updates; access to mediation sessions, submissions, and term sheets. Almost all the information HCSC has provided Homeland is subject either to confidentiality agreements that allow only Homeland's outside counsel to view it or to the mediation privilege. G. Homeland's Agreement to Not Raise "Lack of Consent" Defense to Proposed MDL Subscriber Settlement In November 2020, the MDL court granted preliminary approval to a settlement in the Subscriber Track (the "Subscriber Settlement"). Under its policy, Homeland has no coverage obligation "with respect to any Claim that is settled without its written consent." Before making settlement offers or agreeing to the Subscriber Settlement, HCSC sought Homeland's agreement that it would not later raise its lack of consent to settle as a reason for denying coverage for the settlement. The requested waivers of Homeland's "lack of consent" defense were "subject to a full reservation of all of Homeland's other rights and coverage defenses, including the right to challenge the reasonableness of settlement." Before agreeing to the waivers, Homeland asked HCSC for information evaluating its individual liability and exposure in the MDL Action. HCSC refused to provide that information. Thomas Newman, an expert retained by Homeland, explained at his deposition that an insurer's waiver of its "lack of consent" defense solves a problem arising when there is "an opportunity for the policyholder to settle at a particular time and the policyholder wants to settle but the insurance carrier doesn't yet have enough information to make an informed decision on whether to consent to the settlement." Linda Unger -- Claims Counsel and Assistant Vice President at OneBeacon Insurance Group, of which Homeland is an indirect, wholly-owned subsidiary -- testified that Homeland has agreed to waive its "lack of consent" defense in other cases where it "had not been given sufficient information to make the determination as to the reasonableness of the settlement." Similarly, Virginia Troy -- Vice President for Managed Care Claims at OneBeacon -- testified that Homeland has agreed to waive its "lack of consent" defense in other cases where "the insured presents some need for immediacy in its settlement and Homeland has not been provided with complete information." HCSC has not asked Homeland to fund the Subscriber Settlement, to pay for any defense expenses in the MDL Action, or for a determination of whether there is coverage for the Subscriber Settlement under the Homeland policy. Indeed, HCSC has not asked for any payment under the Homeland policy for the MDL Action. Unger testified that "part of the reason Homeland brought this lawsuit" was because it "expected at some point in time we will be told that a settlement has been reached in principal and our insured, HCSC, will come to us and request payment. We currently do not have sufficient information to evaluate the reasonableness of any such settlement. And part of the reason we brought this lawsuit is to be able to get that information in advance of such an eventuality." The Subscriber Settlement is currently pending final approval by the MDL court. III. Discussion Homeland seeks a declaratory judgment that its policy does not provide coverage for HCSC in the MDL Action in light of: (a) the Related Claims provision and Prior and Pending exclusion, because the MDL Action is related to claims for which HCSC sought coverage in a prior policy period; (b) the Cooperation provision, because HCSC has refused to cooperate with Homeland's coverage investigation; and (c) the Exhaustion provision, because HCSC cannot establish that it properly exhausted its coverage under the Allied World and Travelers policies. The parties agree that Illinois law governs their dispute. A. Related Claims Provision and Prior and Pending Exclusion 1. Related Claims Provision First, Homeland argues that the Related Claims provision precludes coverage for the MDL Provider Track because it is a "related claim" to the Love litigation, which was "brought years before the 2012 Homeland Policy was issued." HCSC does not dispute that the Related Claims provision precludes coverage if the Provider Track is "related" to the Love litigation, but it contends that the two are not related. Judge Feinerman opines that judicial estoppel provides an independent reason for granting Homeland summary judgment on the Related Claims provision as to the Provider Track. HCSC is "prohibited from asserting" that Love and the Provider Track do not allege "essentially the same facts, conspiracy, allegations, and harm." And given the broad definition of "related claims" in the policy to mean "all claims based on, arising out of, resulting from, or in any way involving the same or related facts, circumstances, situations, transactions or events, whether related logically, causally or in any other way," there is no question that claims for two actions asserting "essentially the same facts, conspiracy, allegations, and harm" are related. Judge Feinerman further opines that while Homeland is entitled to summary judgment on the question whether the Related Claims provision precludes coverage for HCSC in the Provider Track, HCSC is entitled to summary judgment on the question whether the Related Claims provision precludes coverage for it in the Subscriber Track. He finds that Homeland offers no evidence regarding the relationship of the Subscriber Track to Love, and it is clear from the record that they are not related. As noted, the Love suit alleged a conspiracy among the Blue Plans and the Association to leverage their market dominance to underpay providers. By contrast, the Subscriber Track complaint alleges a conspiracy among the Blue Plans and the Association not to compete within defined geographic areas, resulting in higher healthcare premium costs for subscribers. Because Love and the Subscriber Track allege conspiracies with different goals, mechanisms, and effects, they are not "based on, arising out of, resulting from, or in any way involving the same or related facts." 2. Prior and Pending Exclusion Homeland claims that the Prior and Pending exclusion precludes coverage for HCSC in the MDL Action. HCSC seeks summary judgment on that claim. Judge Feinerman need not address whether the exclusion precludes coverage for the Provider Track, as coverage is already precluded by the Related Claims provision. He accordingly examines only the Subscriber Track. He finds that HCSC presents strong evidence that the Subscriber Track is not related to the Love litigation. Homeland does not adduce any evidence or provide any detail as to how the MDL Action is related to that "array" of other claims. Its vague and speculative assertions, unsupported by "definite, competent evidence," cannot forestall summary judgment. It does not offer any reason to conclude that there is a dispute concerning the reference to the Inception Date in the Prior and Pending exclusion. Accordingly, HCSC is entitled to summary judgment on the question whether the Prior and Pending exclusion bars coverage for the Subscriber Track, but not on whether the exclusion bars coverage for the Provider Track. B. Cooperation Provision Homeland also claims that coverage is barred because HCSC has not satisfied the Homeland policy's Cooperation provision. HCSC responds that it has not breached its cooperation obligations and that, even if it had, coverage is not barred because Homeland has not suffered "substantial prejudice" from any lack of cooperation. Judge Feinerman finds that there is no need to decide whether HCSC breached its cooperation obligations because, even if it did, Homeland has not suffered any prejudice. Accordingly, HCSC is entitled to summary judgment on Homeland's claim that HCSC's alleged lack of cooperation relieves Homeland of its coverage obligations. It necessarily follows that Homeland's motion for summary judgment on that claim is denied. C. Exhaustion Provision Finally, Homeland claims that HCSC cannot satisfy the Homeland policy's Exhaustion provision. Specifically, it contends that HCSC's "refusal to provide the terms of its settlement in the Allied World suit with underlying insurers Allied World and Travelers" bars coverage because HCSC "cannot now prove exhaustion of the underlying policies." Judge Feinerman holds that Homeland is not entitled on summary judgment to a declaration that "HCSC cannot prove exhaustion as a result of its failure to provide the settlement agreement with Allied World and Travelers and thus, cannot trigger coverage under Homeland's Policy." And as noted, HCSC is entitled to summary judgment on the narrower question whether Homeland's policy allows HCSC to contribute toward exhaustion of the underlying policies. The question whether HCSC can show that the Allied World and Travelers policies were or will be exhausted by payments for losses sustained by entities covered under the Homeland policy, without disclosing the Allied World settlement, remains undecided. IV. Conclusion Judge Feinerman concludes that Homeland's summary judgment motion as to the Related Claims provision is granted as to the Provider Track of the MDL Action and denied as to the Subscriber Track. HCSC's summary judgment motion as to the Related Claims provision and Prior and Pending exclusion is granted as to the Subscriber Track and denied as to the Provider Track. Homeland's summary judgment motion as to the Cooperation and Exhaustion provisions is denied, and HCSC's summary judgment motions as to those provisions are granted. Judge Feinerman declares that the Homeland policy's Related Claims provision precludes HCSC from obtaining coverage from Homeland for the Provider Track of the MDL Action. A full-text copy of the Court's July 19, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/35389x42 from Leagle.com. HOME DEPOT: Filing of Class Status Bids Extended to Oct. 21 ----------------------------------------------------------- In the class action lawsuit captioned as Barragan, et al., v. Home Depot U.S.A., Inc., et al., Case No. 3:19-cv-01766 (S.D. Cal.), the Hon. Judge Andrew G. Schopler entered an order granting the parties' joint motion to extend the class certification deadline. The deadline for class certification motions limited to the third cause of action is reset to October 21, 2022, for this case and the three related cases, Davey, Case 20cv2541 Sandoval, 21cv461 and Flores, 21cv462 Absent extraordinary circumstances, no further leave will be granted. The nature of suit states Labor -- Other Labor Litigation. The Home Depot is an American multinational home improvement retail corporation that sells tools, construction products, appliances, and services. Home Depot is the largest home improvement retailer in the United States.[CC] IQVIA INC: Revised Scheduling Order Entered in Lyngaas Suit ----------------------------------------------------------- In the class action lawsuit captioned as BRIAN J. LYNGAAS, D.D.S., P.L.L.C., v. IQVIA, INC., Case No. 2:20-cv-02370-NIQA (E.D. Pa.), the Hon. Judge Nitza I. Quinones Alejandro entered a revised scheduling order that the remaining case management deadlines are revised, as stipulated: 1. The Plaintiff's expert reports shall be due by September 9, 2022. 2. Rebuttal to the Plaintiff's expert reports are due by October 14, 2022. 3. Rebuttal to Defendant's expert reports shall be due by October 28, 2022. 4. All expert depositions shall be completed by December 2, 2022. 5. Any motion for class certification shall be filed by January 10, 2023, and any response thereto shall be filed by February 14, 2023. 6. Any dispositive motions shall be filed within 60 days of the issuance of this Court's ruling on any motion for class certification. 7. Any response to the dispositive motions shall be filed within 21 days of the filing of the motion. 8. Any failure to comply with this Order may result in sanctions. No further extensions will be granted absent good cause. IQVIA Inc. provides healthcare research services. A copy of the Court's order dated July 14, 2022 is available from PacerMonitor.com at https://bit.ly/3b3iWMV at no extra charge.[CC] JOHNSON & JOHNSON: More Time to File Class Cert Bid Sought ---------------------------------------------------------- In the class action lawsuit captioned as CHEMICAL TOXIN WORKING GROUP INC. DBA HEALTHYLIVING FOUNDATION INC., On behalf of themselves and all others similarly situated, v. JOHNSON & JOHNSON, et al., Case No. 1:22-cv-01259-RCL (D.D.C.), the Plaintiff asks the Court to enter an order extending the deadline for it to file a motion for class certification to 60 days after this Honorable Court has issued a decision on its Motion to Remand; and granting the Defendants 60 days thereafter to file any opposition to class certification. Johnson & Johnson is an American multinational corporation founded in 1886 that develops medical devices, pharmaceuticals, and consumer packaged goods. A copy of the Plaintiff's motion dated July 13, 2022 is available from PacerMonitor.com at https://bit.ly/3z14NIc at no extra charge.[CC] The Plaintiff is represented by: Julie T. Oliver-Zhang, Esq. OLIVER-ZHANG LAW, PLLC 810 New Hampshire Ave. NW Washington, DC 20037 Telephone: (202) 643-1110 Facsimile: (202) 643-1596 E-mail: julie@oliverzhanglaw.com KADENCE INTERNATIONAL: Scheduling Order Entered Brown Class Suit ---------------------------------------------------------------- In the class action lawsuit captioned as CODY BROWN, individually and on behalf of all others similarly situated, v. KADENCE INTERNATIONAL, INC., Case No. 2:22-cv-01097-KSM (E.D. Pa.), the Hon. Judge Karen Spencer Marston entered a scheduling order as follows: 1. All motions to amend the complaint November 11, 2022 and to join or add additional parties shall be filed no later than: 2. All discovery related to whether November 11, 2022 conditional certification of the proposed class of individuals is appropriate under Section 216(b) of the Fair Labor Standards Act ("FLSA") shall be completed no later than: 3. Any motion for conditional December 9, 2022 certification and notice shall be filed no later than: 4. Any response shall be filed no December 30, 2022 later than: Kadence International is a global boutique market research agency. A copy of the Court's order dated July 14, 2022 is available from PacerMonitor.com at https://bit.ly/3zvnJQC at no extra charge.[CC] KYODAI SUSHI: Sparks Seeks Initial Approval of Class Settlement --------------------------------------------------------------- In the class action lawsuit captioned as Madison Sparks, on behalf of herself and all others similarly situated, v. Kyodai Sushi Rock Cafe, Inc., Tae N. Oh, individually, and Kyung Eun Oh, individually, Case No. 3:22-cv-00205-MMH-PDB (M.D. Fla.), the Plaintiff files an agreed motion for preliminary approval of class settlement, conditional certification of the settlement class, appointment of the Plaintiff's counsel as Class Counsel, and approval of the proposed notice of settlement and class action settlement procedure and memorandum of law in support. The Plaintiff alleges that during periods within the past 5 years Defendants employed her and other restaurant servers and failed to compensate these Servers in accordance with the Florida Minimum Wage Act ("FMWA") and provisions of the Fair Labor Standards Act ("FLSA"). Subject to Court approval, the Plaintiff and Defendants have settled Plaintiff's claims on a class-wide common fund basis for significant monetary relief up to $312,500.00. The proposed settlement satisfies all of the criteria for preliminary approval under Rule 23 of the Federal Rules of Civil Procedure, as well as the criteria for approval under the FMWA vis-a-vis the FLSA. The Defendants have been operating in Orange Park, Florida since 1997. Including Plaintiff, there are approximately 144 current and former Servers who comprise the putative Rule 23 class. The Defendants operate Kyodai Sushi Rock Cafe and Hibachi restaurant in Orange Park, Florida. A copy of the Plaintiff's motion dated July 15, 2022 is available from PacerMonitor.com at https://bit.ly/3cM7oyd at no extra charge.[CC] The Plaintiff is represented by: Jordan Richards, Esq. USA EMPLOYMENT LAWYERS - JORDAN RICHARDS, PLLC 1800 SE 10th Ave. Suite 205 Fort Lauderdale, FL 33316 Telephone: (954) 871-0050 E-mail: jordan@jordanrichardspllc.com jake@jordanrichardspllc.com The Defendants are represented by: P. Daniel Williams, Esq. Leonard S. Magid, Esq. MAGID & WILLIAMS, P.A. 3100 University Blvd., Suite 115 Jacksonville, FL 32216 Telephone: (904) 725-6161 E-mail: dan@magidwilliams.com Len@magidwilliams.com LEWIS & CLARK COUNTY, MT: Class Cert. Order in Rogers Suit Affirmed ------------------------------------------------------------------- In the case, WILLIAM SCOTT ROGERS, individually and on behalf of all other similarly situated, Plaintiffs and Appellees v. LEWIS & CLARK COUNTY, Defendant and Appellant, Case No. DA 21-0442 (Mont.), the Supreme Court of Montana affirms the District Court's the class certification order. I. Overview The County appeals from the class certification order entered by the First Judicial District Court, Lewis and Clark County, on August 5, 2021. In the order, the court certified a class action suit against the County related to the County's policy or practice of conducting strip searches of detainees arrested for non-felony offenses because they are eligible for housing in the general population of the Lewis and Clark County Detention Center. The restated issues on appeal are: 1. Did the District Court certify an overly broad class? 2. Did the District Court abuse its discretion by finding the proposed class met the requirements of M. R. Civ. P. 23(a)? 3. Did the District Court abuse its discretion by certifying a class action lawsuit under M. R. Civ. P. 23(b)? The District Court is affirmed. II. Background Rogers and 95 other named individuals (collectively, the Plaintiffs) allege they were each arrested for a misdemeanor or traffic offense after Oct. 31, 2015. The Plaintiffs allege each of them were subjected to a strip search as part of the booking process at the Detention Center without reasonable suspicion to believe they were concealing a weapon, contraband, or evidence of the commission of a crime. On Oct. 31, 2018, the Plaintiffs filed the suit, alleging statutory and constitutional violations and common law tort claims. The County admits the Detention Center has a policy and practice of strip searching every detainee eligible for housing in the general population of the Detention Center. The County does not concede the absence of reasonable suspicion to conduct strip searches of the individual Plaintiffs but concedes the Plaintiffs would have been strip searched whether or not reasonable suspicion existed. Detention Center employees acknowledged in their depositions the Detention Center has an unwritten policy and practice of strip searching every detainee eligible for housing in the general population of the Detention Center. Based on a list of all bookings completed at the Detention Center since Oct. 31, 2015, provided by the County to the Plaintiffs in discovery, the Plaintiffs allege the Detention Center may have conducted over 3,500 strip searches of persons detained for non-felony offenses pursuant to its uniform policy and practice in the three years preceding the lawsuit and the Detention Center continues to perform strip searches of non-felony offenders under this policy and practice since the date of filing the suit. The Plaintiffs first moved for class certification on Aug. 23, 2019. The District Court stayed proceedings on the class certification motion pending the Court's review of the District Court's order dismissing all but four Plaintiffs from the action. On interlocutory appeal, the Court reversed the District Court's dismissal of the Plaintiffs' claims brought under Section 46-5-105, MCA, and remanded the case to the District Court for further proceedings. The Plaintiffs renewed their motion to certify a class on Jan. 27, 2021. They alleged the County has a policy or practice of conducting suspicionless strip searches of all arrestees who enter the general population of the Detention Center and proposed a class of all non-felony arrestees strip-searched "without suspicion to believe that the person was concealing a weapon, contraband, or evidence of commission of a crime." The Plaintiffs assert that the Detention Center officers fill out an "Intake Form" when booking detainees into the jail. On appeal, the Plaintiffs contend these Intake Forms should establish prima facie membership in the class, as the form requires the officer to check the reason for the strip search. The form lists nine reasons for the strip search, including "probation/parole," "commitment," "drug offense," "violent crime," "past history," "weapons charges," "reasonable suspicion," "other," and "being placed into population, unclothed search completed for facility security." The Plaintiffs maintain each misdemeanor arrestee or traffic offense arrestee whose Intake Form shows only a check in the last box -- "being placed into population, unclothed search completed for facility security" -- should be deemed a class member. They sought certification under M. R. Civ. P. 23(b)(2) and (b)(3). The District Court granted the motion to certify a class but altered the Plaintiffs' proposed class definition to expressly focus on the County's "policy or practice of conducting strip searches or visual body cavity searches of detainees who may be placed into general custody." The District Court defined the certified class as: Each person arrested or detained for a non-felony offense from Oct. 31, 2015, to the present who has been subjected to a strip search or visual body cavity search by a law enforcement officer or employee of the Lewis and Clark County Detention Center pursuant to a Detention Center policy or practice of conducting strip searches or visual body cavity searches of detainees who may be placed into general custody. The court defined the certified claims as "the Plaintiffs' cause of action under Mont. Code Ann. Section 46-5-105, and any defenses lodged by the County thereto." In its analysis, the court, quoting from Jacobsen v. Allstate Ins. Co., 2013 MT 244, ¶ 40, 371 Mont. 393, 310 P.3d 452, explained "a finding that the Detention Center engaged in a policy or practice that violated Section 45-5-105 will 'efficiently drive the resolution of the litigation.'" The County appeals from the order certifying a class. III. Discussion A. Did the District Court certify an overly broad class? The County first challenges the class definition certified by the District Court. It alleges the District Court defined a class that includes "all misdemeanants booked over a three-year period, regardless of whether the person was searched and regardless of whether reasonable suspicion was indicated." The County contends the class definition includes class members who have no standing to bring a claim because they have no injury under Section 46-5-105, MCA. A review of the class definition certified by the District Court shows the class is not nearly as broad as the County claims, the Supreme Court opines. The definition limits class membership to detainees arrested for non-felony offenses who were strip searched and requires the class members to have been strip searched pursuant to the policy or practice of strip-searching detainees because they are eligible to be placed into general custody. These limitations clearly exclude detainees who were not searched and those whose Intake Forms indicate they were searched for a reason other than "being placed into population, unclothed search completed for facility security." Based on the record evidence before it, the Supreme Court holds that the District Court did not abuse its discretion in defining the class based on the County's policy or practice as indicated on the Intake Forms. As such, the class as certified by the District Court includes each person arrested or detained for a non-felony offense from Oct. 31, 2015, to the present who, as identified on his/her jail Intake Form, has been subjected to a strip search or visual body cavity search by a law enforcement officer or employee of the Lewis and Clark County Detention Center solely pursuant to the Detention Center's policy or practice of conducting strip searches or visual body cavity searches of detainees who may be placed into general custody without delineated reasonable suspicion specified by Section 46-5-105, MCA. Should this class definition prove unworkable as discovery proceeds, the District Court retains the ability to alter or amend the class and class claims. B. Did the District Court abuse its discretion by finding the proposed class met the requirements of M. R. Civ. P. 23(a)? A class action claim is "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." A class action suit conserves the judiciary's and similarly situated parties' resources by permitting the litigation of common issues of fact and law in a single case. In order for a class action to proceed, the class representative must demonstrate the four prerequisites of M. R. Civ. P. 23(a) are met and satisfy at least one of the three subsections of Rule 23(b). These prerequisites are respectively known as numerosity, commonality, typicality, and adequacy of representation. The County challenges the District Court's findings on numerosity, commonality, and typicality. The Supreme Court finds that (i) sufficient evidence supported the District Court's determination the size of the potential class is so numerous joinder of all members is impracticable; (ii) the District Court did not abuse its discretion in finding the Plaintiffs met the commonality requirement; and (iii) the claims are typical of all class members. C. Did the District Court abuse its discretion by certifying a class action lawsuit under M. R. Civ. P. 23(b)? In addition to satisfying the prerequisites of Rule 23(a), the class must satisfy at least one of the provisions of Rule 23(b). The District Court certified the class under Rule 23(b)(2) and 23(b)(3). To certify a class under Rule 23(b)(3), the court must find "questions of law or fact common to the class members predominate over any questions affecting only individual members." The County contends the class cannot meet the predominance or superiority requirements of Rule 23(b)(3) because there is no common question susceptible to class-wide resolution and resolution of the Plaintiffs' claims will require individualized determinations from the District Court whether reasonable or particularized suspicion supported each strip search. The Supreme Court opines that the District Court did not err in concluding common questions predominate over class members' individual questions. In the case, the common question is whether the policy or practice of the County to conduct strip searches of detainees arrested for non-felony offenses simply because they are eligible for housing in the general population of the Detention Center violates the rights of those detainees under Section 46-5-105, MCA. The District Court fashioned the class around the County's own recorded reasoning for conducting each strip search—the reason provided on the Intake Form. IV. Conclusion The District Court's order certifying a class action is affirmed. A full-text copy of the Court's July 19, 2022 Opinion is available at https://tinyurl.com/m4pajstb from Leagle.com. Nicholas J. Lofing -- njlofing@GARLINGTON.COM -- Jason M. Collins, Garlington, Lohn & Robinson, PLLP, in Missoula, Montana, Mitchell A. Young -- myoung@mtcounties.org -- MACo Defense Services, in Helena, Montana, for the Appellant. Keif A. Storrar, Doubek, Pyfer & Storrar, PLLP, Helena, Montana, Lawrence A. Anderson, Attorney at Law, P.C., in Great Falls, Montana, for the Appellees. LEXINGTON LAW: Moore TCPA Suit Seeks to Certify Class ----------------------------------------------------- In the class action lawsuit captioned as JENNIFER MOORE, individually and on behalf of all others similarly situated, v. JOHN C. HEATH, et al., Case No. 2:21-cv-00027-TC-CMR (D. Utah), the Plaintiff asks the Court to enter an order: 1. certifying a class with respect to her claims against the Defendants John C. Heath, Attorney at Law, PLLC, d/b/a Lexington Law Firm, Progrexion Marketing, Inc., and Efolks, LLC, for violations of the Telephone Consumer Protection Act, 47 U.S.C. section 227 ("TCPA"); 2. designating her as class representative; and 3. designating her counsel as Class Counsel. The Plaintiff moves to certify the following proposed Class: "All persons in the United States, for the time period beginning four years prior to the filing of this lawsuit through the date of final approval, whose telephone was acquired by Defendants through the downpaymentsurvey.com and/or autoratetrust.com websites, and who were transmitted a prerecorded voice call containing the following message: "Hi, this is Lexington Law firm. Recently you requested a free credit consultation, and I was calling to follow-up. Lexington Law has helped hundreds of thousands of people work to repair their credit, and we would like to see if we can help you too. Call us back at 602- 474-2454. That's 602-474-2454"." According to the complaint, the Defendants have been harassing consumers with robocalls to solicit business for Lexington Law. The Defendants obtain consumer lead information through marketing affiliates that operate deceptive and misleading websites, so the Defendants can then attempt to claim that the consumer consented to be called. They did not. The United States' Consumer Financial Protection Bureau agrees: "Progrexion's marketing affiliates have used deceptive, bait advertising to generate referrals to Lexington Law's credit repair service." SuitedConnector is a marketing affiliate utilized by the Defendant Progrexion. SuitedConnector collects consumer contact information through one of its websites and then sells that information to a consumer data purchaser. Consumer leads from SuitedConnector are sold for a few cents and up to $30. The companies to whom SuitedConnector sells consumer leads have no correlation to the services being advertised on SuitedConnector's websites, the lawsuit adds. A copy of the Plaintiff's motion dated July 13, 2022 is available from PacerMonitor.com at https://bit.ly/3Pv50KL at no extra charge.[CC] The Plaintiff is represented by: Manuel S. 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 - and - Thomas Alvord, Esq. LAWHQ LLC 299 S Main St., Ste. 1300 Salt Lake City, UT 84111 Telephone: (801) 735-1968 E-mail: thomas@lawhq.com - and - Ignacio Hiraldo, Esq. IJH LAW 1200 Brickell Ave., Suite 1950 Miami, FL 33131 Telephone: (786) 496-4469 E-mail: IJhiraldo@IJhlaw.com LIBERTY ONE: Ramirez Sues Over Unpaid Wages, Discrimination ----------------------------------------------------------- IVELISSE RAMIREZ, on behalf of herself, FLSA Collective Plaintiffs, and the Class, Plaintiff v. LIBERTY ONE GROUP LLC, and LIBERTY ONE BROOKLYN LLC, Defendants, Case No. 1:22-cv-05892 (S.D.N.Y., July 11, 2022) seeks to recover from the Defendants unpaid wages, including overtime, due to time shaving; statutory penalties; liquidated damages; and attorneys' fees and costs, pursuant to the Fair Labor Standards Act and the New York Labor Law, and to recover back pay, front pay, compensatory damages, punitive damages, and attorneys' fees and costs after Plaintiff was discriminated on the basis of her pregnancy in violation of the New York State Human Rights Law and the New York City Human Rights Law. Plaintiff RAMIREZ started working for Defendants in June 2021 at the job site located in Brooklyn, New York. She filled in at various other locations throughout New York City for her co-workers on an as needed basis. Plaintiff was terminated in March 2022. Liberty One Group LLC is a real estate agency in New York City, New York.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 MARICOPA COUNTY, AZ: Houston Seeks to Certify Class Action ---------------------------------------------------------- In the class action lawsuit captioned as Brian Houston, a married man; and other persons similarly situated (the Class), v. Maricopa County, Arizona; Paul Penzone, Sheriff of Maricopa County, Arizona and Jane Doe Penzone, Case No. 2:22-cv-00875-SPL-MTM (D. Ariz.), the Plaintiff asks the Court to enter an order that this action may be maintained as a class action, pursuant to Federal Rule of Civil Procedure 23. Maricopa County is in the south-central part of the U.S. state of Arizona. A copy of the Plaintiff's motion dated July 13, 2022 is available from PacerMonitor.com at https://bit.ly/3RWBXRN at no extra charge.[CC] The Plaintiff is represented by: Andrew Ivchenko, Esq. ANDREW IVCHENKO, PLLC 4960 South Gilbert Road, #1-226 Chandler, AZ 85249 Telephone: (480) 250-4514 E-mail: aivchenkopllc@gmail.com - and - Daniel L. Kloberdanz, Esq. KOZUB KLOBERDANZ 7537 East McDonald Drive Scottsdale, AZ 85250 Telephone: (480) 624-2700 E-mail: dkloberdanz@bkl-az.com MATRIX ABSENCE: Samantha Seeks to Certify Rule 23 Class ------------------------------------------------------- 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 Plaintiff Samantha asks the Court to enter an order certifying a class under Rule 23(a) and 23(b)(3) consisting of: "All individuals employed by Matrix as "Telephone Claims Examiners" based out of Matrix’s Portland, Oregon office (whether in-person or remotely) 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)." The Plaintiff also moves the Court for an Order appointing their undersigned counsel for Plaintiff to serve as Class Counsel. Matrix provides absence management services. A copy of the Plaintiff's motion to certify class dated July 12, 2022 is available from PacerMonitor.com at https://bit.ly/3onh4BE at no extra charge.[CC] The Plaintiff is represented by: Jack Siegel, Esq. SIEGEL LAW GROUP PLLC 4925 Greenville, Suite 600 Dallas, TX 75206 Telephone: (214) 790-4454 E-mail: Jack@siegellawgroup.biz MD NIGERIA: Calicdan Appeals FLSA Case Dismissal Ruling ------------------------------------------------------- Plaintiff Servando Paraon Calicdan filed an appeal from a court ruling entered in the lawsuit entitled SERVANDO PARAON CALICDAN, Plaintiff v. M D NIGERIA, LLC; MEGADRILL SERVICES LIMITED; ANJALEX INVESTMENTS, LLC; M & D MANAGEMENT, LLC; MICHAEL A. TOPHAM; WENDY DUNN, DAN TOPHAM, IAN DUNN, JUDY M. DUNN, and ROBERT P. DUNN, Defendants, Case No. 6:21-cv-03283, in the U.S. District Court for the Western District of Louisiana, Lafayette. As reported in the Class Action Reporter on Sep. 24, 2021, the lawsuit arises from the Defendants' alleged violations of the Fair Labor Standards Act by failing to pay Plaintiff and other similarly-situated workers the required minimum and overtime wages. On January 21, 2022, the Defendants filed a motion to dismiss and motion to compel arbitration. On March 29, 2022, the Plaintiff filed a motion to take limited early discovery on issues of arbitrability. On April 19, 2022, the Defendants filed a motion to strike regarding the Plaintiff's motion for discovery. On June 15, 2022, Judge Terry A. Doughty entered judgment adopting a May 17, 2022 Report and Recommendation entered by Magistrate Judge Carol B. Whitehurst granting Defendants' motion to dismiss and compel arbitration; denying Plaintiff's motion for discovery; and denying Defendants' motion to strike. The Plaintiff seeks a review of this ruling. The appellate case is captioned as Calicdan v. M D Nigeria, Case No. 22-30412, in the U.S. Court of Appeals for the Fifth Circuit, filed on July 11, 2022.[BN] Plaintiff-Appellant Servando Paraon Calicdan, individually, and on behalf of those similarly situated, is represented by: Kenneth C. Bordes, Esq. 4224 Canal Street New Orleans, LA 70119-0000 Telephone: (504) 588-2700 - and - Daniel Werner, Esq. RADFORD & KEEBAUGH, L.L.C. 315 W. Ponce de Leon Avenue Decatur, GA 30030 Telephone: (678) 271-0304 Defendants-Appellees M D Nigeria, L.L.C., et al., is represented by: Jennifer Faroldi Kogos, Esq. JONES WALKER, L.L.P. 201 Saint Charles Avenue New Orleans, LA 70170-5100 Telephone: (504) 582-8154 MOUNTAIN WEST: Pretrial Preparation & Trial Vacated in Drange ------------------------------------------------------------- In the class action lawsuit captioned as JODIE AND ANDY DRANGE, each individually and on behalf of other persons similarly situated, v. Mountain West Farm Bureau Mutual Insurance Company and DOES 1-100, Case No. 1:20-cv-00030-SPW (D. Mont), the Hon. Judge Susan P. Watters entered an order: 1. granting the joint motion to vacate pretrial preparation and trial schedule pending resolution of the class certification motions; 2. vacating the pretrial preparation deadlines outlined in the Court's Order; and 3. vacating the final pretrial conference set for Aug. 31, 2022 and the trial set for Sept. 12, 2022. Mountain West operates as an insurance company. A copy of the Court's order dated July 14, 2022 is available from PacerMonitor.com at https://bit.ly/3PSODam at no extra charge.[CC] NASONCARE LLC: Anderson Seeks to Certify FLSA Collective Action --------------------------------------------------------------- In the class action lawsuit captioned as Wendy Anderson, On Behalf of Herself and Others Similarly Situated, v. NasonCare LLC, and Barron S. Nason, Case No. 2:21-cv-04132-RMG (D.S.C.), the Plaintiff asks the Court to enter an order authorizing this action against Defendants, NasonCare LLC. and Barron S. Nason to proceed conditionally as a collective action and facilitating the collective action through discovery of and notice to potential parties to the action. The Plaintiff is a former employee of the Defendants who files this action against the Defendants for claims for unpaid overtime compensation pursuant to the Fair Labor Standards Act ("FLSA"). The Plaintiff is a former radiologic technologist employed by the Defendants and is "similarly situated" in her job duties and manner of compensation to all other current and former non-exempt employees, the lawsuit says. The Defendant paid all its non-exempt employees using the same compensation plan. The Plaintiff and other non-exempt employees worked more than 40 hours in some workweeks without receiving overtime compensation at the rate of one and one-half times their regular rate of pay, the lawsuit adds. As a result of Defendants' compensation plan, Defendants did not pay Plaintiff and similarly situated non-exempt employees overtime compensation during certain workweeks when they worked more than 40 hours. NasonCare provides medications, laboratory studies, x-rays, and CT scans. A copy of the Plaintiff's motion to certify class dated July 14, 2022 is available from PacerMonitor.com at https://bit.ly/3vAnzVZ at no extra charge.[CC] The Plaintiff is represented by: Marybeth Mullaney, Esq. 652 Rutledge Ave, Suite A Charleston, SC 29403 Telephone (843) 588-5587 Facsimile (843) 593-9334 E-mail: marybeth@mullaneylaw.net NAT'L ASSOCIATION: Court Denies Arbitration Bids in Burnett Suit ---------------------------------------------------------------- In the case, SCOTT AND RHONDA BURNETT, RYAN HENDRICKSON, JEROD BREIT, SCOTT TRUPIANO, AND JEREMY KEEL, on behalf of themselves and all others similarly situated, Plaintiffs v. THE NATIONAL ASSOCIATION OF REALTORS, REALOGY HOLDINGS CORP., HOMESERVICES OF AMERICA, INC., BHH AFFILIATES, LLC, HSF AFFILIATES, LLC, RE/MAX LLC, and KELLER WILLIAMS REALTY, INC., Defendants, Case No. 4:19-cv-00332-SRB (W.D. Mo.), Judge Stephen R. Bough of the U.S. District Court for the Western District of Missouri, Western Division, issued an order denying: a. the Motion to Compel Arbitration filed by Defendant HomeServices; and b. the Motion to Compel Arbitration or, in the Alternative, to Stay Proceedings Pending Arbitration filed by the Remaining Defendants, RE/MAX, LLC, National Association of Realtors, Realogy Holdings Corp., and Keller Williams Realty, Inc. I. Background Plaintiffs Rhonda Burnett, Scott Burnett, Ryan Hendrickson, Jerod Breit, Scott Trupiano, and Jeremy Keel in the class action allege that all the Defendants enforce anticompetitive rules which require home sellers to compensate the home buyer's broker. On April 22, 2022, the Court granted the Plaintiffs' motion for class certification, certifying classes of home sellers who listed their homes for sale on one of several regional real estate listing marketplaces (the "Subject MLSs") through an agent affiliated with one of the defendants. On June 6, 2022, the U.S. Court of Appeals for the Eighth Circuit denied the Defendants' petition for permission to appeal the class certification order. Defendant National Association of Realtors ("NAR") is a national trade association of real estate brokers and agents. HomeServices, Realogy Holdings Corp., and Keller Williams Realty, Inc. are national real estate broker franchisors that operate brokerage subsidiaries, franchisees, or affiliates within the geographic regions covered by the Subject MLSs. According to the Plaintiffs, NAR created and implemented the anticompetitive rules, and the other defendants enforce those rules through anticompetitive practices. Some of the class members, including class representatives Rhonda Burnett and Scott Burnett (the "Burnetts"), used the brokerage services of Reece & Nichols Realtors, Inc. ("ReeceNichols") to sell their home. Another group of class members used the brokerage services of BHH KC Real Estate, LLC d/b/a Berkshire Hathaway HomeServices Kansas City Realty, to sell their home. Both ReeceNichols and BHH KC are wholly owned subsidiaries of HomeServices of MOKAN, LLC. HomeServices of MOKAN, LLC, is a wholly owned subsidiary of HomeServices of America, Inc. Since at least 2014, ReeceNichols and BHH KC agents executed form listing agreements with home sellers which include varying versions of arbitration agreements. The 2014-2017 Listing Agreements, the 2018 Listing Agreements, and the 2019-2022 Listing Agreements contain Arbitration Agreements. HomeServices and the Remaining Defendants now move to (1) compel the unnamed class members who signed a Listing Agreement to arbitrate their claims, (2) amend the class definitions to exclude those individuals, and (3) stay all proceedings with respect to claims asserted by those individuals until arbitration is completed. The Plaintiffs oppose the motions. II. Discussion A. HomeServices HomeServices argues that the Court should compel arbitration because (1) threshold issues of arbitrability must be resolved by an arbitrator, not the Court; (2) even if the Court may resolve threshold issues of arbitrability, HomeServices can enforce the Arbitration Agreements under the FAA. Plaintiffs disagree on each point, and also argue that HomeServices has waived its arbitration rights. Judge Bough first addresses the issue of wavier, and then addresses the parties' remaining arguments. He finds that HomeServices has actively litigated the case since May 2019 (at the time of the Order there are 842 ECF entries), twice filed interlocutory appeals on class certification and arbitration, and now, almost three years into the litigation, raises for the first time arbitration of absent class members' claims. Consequently, HomeServices has waived its right to compel arbitration. Even assuming HomeServices did not waive its right to compel arbitration, Judge Bough finds that HomeServices cannot enforce the Arbitration Agreements. HomeServices is not a party or intended third-party beneficiary to the delegation provisions. The Court -- not an arbitrator -- must address whether HomeServices can enforce the Arbitration Agreements. Judge Bough also finds that HomeServices is not a party to the Listing Agreements and therefore cannot enforce the narrow, party-specific Arbitration Agreements. He holds that HomeServices does not have a sufficiently close relationship with ReeceNichols or BHH KC to enforce the Arbitration Agreements. Also, because the Arbitration Agreements narrowly cover disputes between the parties, failure to allow HomeServices to compel arbitration will not eviscerate the underlying agreements. Lastly, the Arbitration Agreements themselves prevent nonsignatories from being treated jointly for arbitration purposes. Even if Plaintiffs had joined ReeceNichols and BHH KC to the lawsuit and asserted claims against them, the Arbitration Agreements do not allow ReeceNichols, BHH KC, or the Plaintiffs to "join or consolidate disputes against" HomeServices "in any arbitration." Judge Bough concludes that HomeServices cannot compel the unnamed class members to arbitrate their claims against it, and thus a stay and amendment of the class definitions is not warranted. Accordingly, HomeServices motion is denied. B. Remaining Defendants The remaining Defendants rely on the same arguments asserted by HomeServices. For the reasons Judge Bough denies HomeServices' motion, he denies the Remaining Defendants' motion. III. Conclusion Accordingly, Judge Bough denies (i) HomeServices' Motion to Compel Arbitration, and (ii) Defendants RE/MAX, LLC, National Association of Realtors, Realogy Holdings Corp., and Keller Williams Realty, Inc.'s Motion to Compel Arbitration or, in the Alternative, to Stay Proceedings Pending Arbitration. A full-text copy of the Court's July 19, 2022 Order is available at https://tinyurl.com/mr9cm26t from Leagle.com. NATIONAL MENTOR: Hagans, et al., Seek to Certify Collective Action ------------------------------------------------------------------ In the class action lawsuit captioned as JOHN HAGANS AND VIVIAN HAGANS, individually and on behalf of those similarly situated, v. NATIONAL MENTOR HEALTHCARE, INC., and NATIONAL MENTOR HEALTHCARE, LLC, Case No. 1:22-cv-00128-KMW-SAK (D.N.J.), the Plaintiffs, John Hagans and Vivian Hagans will move the Court, on August 15, 2022, for an order granting their request to conditionally certify collective action and to facilitate notice to potential class members pursuant to 29 U.S.C. section 216(b). National Mentor operates as a holding company. A copy of the Plaintiffs' motion dated July 13, 2022 is available from PacerMonitor.com at https://bit.ly/3RWVxxj at no extra charge.[CC] The Plaintiffs are represented by: Andrew R. Frisch, Esq. Chanelle Ventura, Esq. MORGAN & MORGAN, P.A. 8151 Peters Road, Suite 4000 Plantation, FL 33324 Telephone: (954) WORKERS Facsimile: (954) 327-3013 E-mail: afrisch@forthepeople.com cventura@forthepeople.com NORDICTRACK INC: Larsen Sues Over Cancelled Fitness Live Classes ---------------------------------------------------------------- KURT LARSEN, on behalf of himself and all others similarly situated, Plaintiff v. NORDICTRACK, INC., iFIT Inc., and iFIT HEALTH & FITNESS, INC., Defendants, Case No. 2:22-cv-04492 (D.N.J., July 8, 2022) is a class action brought by the Plaintiff against the Defendant for breaches of warranty under the Magnuson-Moss Warranty Act. iFIT Inc. and iFIT Health & Fitness Inc. are health and fitness technology companies that sell NordicTrack fitness equipment, including stationary bikes, treadmills, ellipticals, and rowers, that is paired with "iFIT" exercise software. The Plaintiff challenges the conduct of NordicTrack, which abruptly, and without warning, cancelled all live classes offered, through Defendants' iFIT software, on NordicTrack bikes and treadmills. Despite marketing iFIT and describing live classes as a key functional feature of this exercise equipment, Defendants ceased offering all live classes on May 27, 2022, says the suit. Moreover, the Defendants have not offered consumers any compensation or discounts for the removal of this key feature of NordicTrack bikes and treadmills. To the contrary, the Defendants expect consumers to continue to pay full price for iFIT subscriptions despite the removal of live classes, the suit alleges. The Plaintiff, who purchased a NordicTrack bike and used to regularly take live classes, wrote Defendants asking them to fix the issue or otherwise compensate Plaintiff. The Defendants have not responded to Plaintiff, adds the suit.[BN] The Plaintiff is represented by: Adam Pollock, Esq. Raphael Janove, Esq. POLLOCK COHEN LLP 111 Broadway, Suite 1804 New York, NY 10006 Telephone: (212) 337-5361 E-mail: Adam@PollockCohen.com Rafi@PollockCohen.com NVIDIA CORP: Production of Docs in Westland Suit Upheld in Part --------------------------------------------------------------- In the case, NVIDIA CORPORATION, Defendant, Appellant v. CITY OF WESTLAND POLICE AND FIRE RETIREMENT SYSTEM, DENNIS HORANIC, ELLEN HOKE, KALLESTAD TRUST, and STEPHEN P. FARKAS, Plaintiffs, Appellees, Case No. 259, 2021 (Del.), the Supreme Court of Delaware issued an Opinion affirming in part and reversing in part the Court of Chancery's order directing the production of two sets of documents -- certain communications with the CEO and certain specific sets of emails. I. Introduction The appeal arises from a final judgment of the Court of Chancery that ordered NVIDIA to produce books and records to certain NVIDIA stockholders under Section 220 of the Delaware General Corporation Law. In the underlying action, the stockholders alleged that certain NVIDIA executives knowingly made false or misleading statements during Company earnings calls that artificially inflated NVIDIA's stock price, and then those same executives sold their stock at inflated prices. As such, the stockholders sought to inspect books and records to investigate possible wrongdoing and mismanagement at the Company, to assess the ability of the board to consider a demand for action, to determine whether the Company's board members are fit to serve on the board, and to take the appropriate action in response to the investigation. NVIDIA argued that the stockholders were not entitled to the relief they sought because (1) the scope of the original demands failed to satisfy the form and manner requirements; (2) the documents sought at the trial were not requested in the original demands; (3) the stockholders failed to show a proper purpose; (4) the stockholders failed to show a credible basis to infer wrongdoing; and (5) the requests were overbroad and not tailored to the stockholders' stated purpose. The Court of Chancery rejected these arguments and ordered the production of two sets of documents -- certain communications with the CEO and certain specific sets of emails. NVIDIA has appealed and challenges each of the Court of Chancery's rulings. Having reviewed the parties' briefs and the record on appeal, and after oral argument, the Delaware Supreme Court holds that: (1) the stockholders' original demands did not violate Section 220's form and manner requirements; (2) the stockholders did not expand their requests throughout litigation; (3) the Court of Chancery did not err in holding that sufficiently reliable hearsay evidence may be used to show proper purpose in a Section 220 litigation, but did err in allowing the stockholders in this case to rely on hearsay evidence because the stockholders' actions deprived NVIDIA of the opportunity to test the stockholders' stated purpose; (4) the Court of Chancery did not err in holding that the stockholders proved a credible basis to infer wrongdoing; and (5) the documents ordered to be produced by the Court of Chancery are essential and sufficient to the stockholders' stated purpose. II. Background NVIDIA is a California-based technology company that designs, manufactures, and markets, among other things, graphics processing units ("GPUs"). GPUs are computer chips that perform rapid mathematical calculations. Traditionally, NVIDIA sold its GPUs for video gaming; these GPUs are marketed under the name "GeForce" ("Gaming GPU"). NVIDIA's gaming segment generates the vast majority of its revenue. In early 2017, NVIDIA experienced an increase in Gaming GPU sales as consumers began purchasing the product for use in cryptocurrency mining. In response, NVIDIA created a new GPU specifically for mining that does not contain graphics capabilities ("Crypto GPU"). NVIDIA's goal in producing the Crypto GPU was to protect the Gaming GPU supply for gaming customers. This strategy, however, did not appear to work; crypto miners continued to purchase Gaming GPUs for mining purposes. During the increase in purchases of Gaming GPUs by crypto miners, Gaming GPUs were scarce and prices increased. This had the effect of pricing gamers out of the market. From mid-2017 to late-2018, NVIDIA executives made a series of statements in various earnings calls about the effect of crypto mining on the channel and NVIDIA's revenue and about its ability to manage the increasing demand for Gaming GPUs. These statements are the basis for various lawsuits against NVIDIA, including the instant action. On an Aug. 10, 2017 earnings call, NVIDIA executives discussed an increase in GPU sales driven by a spike in cryptocurrency prices. During the call, Jensen Huang, NVIDIA's CEO, stated, "There's still small miners that buy Gaming GPUs here and there, and that probably also increased the demand of Gaming GPUs. There's still cryptocurrency mining demand that we know is out there." Collette Kress, NVIDIA's CFO, agreed that GPU sales "were lifted by demand from increasing mining activity" and noted that NVIDIA's "strategy is to stay alert to this fast-changing market." On Nov. 9, 2017, during an earnings call, Kress suggested that NVIDIA "remains nimble in its approach to the cryptocurrency market. During earnings calls on May 10, 2018, and Aug. 16, 2018, Huang and Kress expressed optimism that "the gaming demand is strong" because there was still pent-up demand for Gaming GPUs from gamers. Between Aug. 11, 2017, and Sept. 28, 2018, NVIDIA's stock price rose from $155.96 to $281.02 per share. On Sept. 6, 2017, Huang sold 110,000 shares of NVIDIA for $18.2 million. And, pursuant to a 10b-5 plan, Kress sold 36,333 shares for $7.7 million between October 2017 and September 2018. On Nov. 15, 2018, NVIDIA announced that the pent-up gaming demand it predicted had not materialized, leading to excess inventory in the channel and a revenue miss. NVIDIA's stock price declined 28.5% in the days following the call. On Nov. 19, 2018, NVIDIA closed at $144.70 per share. On Jan. 28, 2019, NVIDIA lowered its earnings estimate for the fourth quarter of 2019. On Feb. 14, 2019, NVIDIA announced that Gaming GPU revenue for the fourth quarter was down 45% year-over-year and forty-six percent quarter-over-quarter. By November 2019, NVIDIA's stock price returned to over $200 per share. On June 21, 2019, certain NVIDIA stockholders filed a consolidated class action complaint (the "Securities Complaint") in the U.S. District Court for the Northern District of California (the "Securities Class Action"). The Securities Class Action, which named NVIDIA and several of its directors as defendants, including Huang and Kress, alleged that the defendants violated federal securities laws by making false or misleading statements about the effect of crypto mining on NVIDIA's revenue and the demand for Gaming GPUs. The Securities Complaint supported its allegations with public filings, NVIDIA transcripts and presentations, testimony from relevant experts, and information from former NVIDIA employees, among other things. On March 16, 2020, the U.S. District Court for the Northern District of California dismissed in part the Securities Class Action, holding that the plaintiffs failed to meet the standard of proof for falsity and raise a strong inference of scienter with respect to any of the individual defendants. The court dismissed the motion with leave to amend. The plaintiffs then filed an amended securities complaint (the "Amended Securities Complaint"). The Amended Securities Complaint added anonymous testimony from a former NVIDIA employee, named FE 1, alleging that Huang and other executives had specific knowledge of the impact of cryptocurrency on the channel. Relevant to this appeal, the Amended Securities Complaint alleged that during a March 2017 meeting, FE 1 warned Senior Vice President and Head of Gaming, Jeff Fisher, and other executives that NVIDIA had to "take care" given the growing reliance on crypto miners in China, which Fisher called "dangerous" during the meeting. The Amended Securities Complaint also alleged a close relationship between Fisher and Huang, noting that "Fisher reported directly to Huang," that Fisher was one of NVIDIA's oldest employees, and that Fisher met with Huang weekly. It also alleged that weekly sales reports quantifying the impact of crypto-mining demand on Gaming GPU sales was sent to Fisher and other executives throughout 2017. NVIDIA filed a motion to dismiss the Amended Securities Complaint, which the court granted. Between Feb. 22, 2019, and April 16, 2019, City of Westland Police and Fire Retirement System, Dennis Horanic, Ellen Hoke, Kallestad Trust, and Stephen P. Farkas, all NVIDIA stockholders, (collectively, the "Stockholders"), separately served Section 220 demands to NVIDIA (the "Original Demands"). Although these demands contained a variety of requests, City of Westland's first demand was for "all documents forming the basis, if any, for NVIDIA's public statements about its ability to manage the inventory, supply chain and sales channel concerns around the cryptocurrency boom experienced by NVIDIA during the time period from 2017 to 2019." The Stockholders eventually served NVIDIA with consolidated requests (the "Consolidated Demands"), which sought, among other things, "all documents and/or communications used by NVIDIA's CEO, CFO and/or other executives with direct reporting responsibilities to the Board concerning the demand for the Company's GPUs, GPU inventory levels, sales channel conditions and other key business metrics monitored by the NVIDIA Board during the time period from 2017 to 2019." On Feb. 10, 2020, the Stockholders filed an action in the Court of Chancery seeking inspection of various NVIDIA books and records. In their complaint, the Stockholders alleged that NVIDIA executives and Board members, including Huang and Kress, "knowingly made, or allowed to be made, false and misleading public statements concerning the Company's internal controls, prospects, and earnings, while contemporaneously selling $147 million of Company stock at artificially inflated prices." In particular, the Stockholders alleged that 12 public statements made by either Huang or Kress during earnings calls were false or misleading (collectively, the "Public Statements"). They also alleged that the NVIDIA insiders materially benefited by selling their stock when stock prices were artificially high. On Feb. 10, 2021, the Court of Chancery issued a transcript ruling. It started its analysis by determining whether the Stockholders had established a proper purpose. For purposes of the ruling, the court treated these purposes as a single purpose to "investigated potential wrongdoing" and found that "the investigation of mismanagement is a proper purpose under Delaware law." The court next tackled the question of whether the Stockholders had established a credible basis for inspection with respect to wrongdoing. In finding a credible basis for demand, it stated that "viewed collectively, the categories support a finding that there is a credible basis to infer that an insider trading scheme existed." Finally, the court determined the scope of relief to be granted and ultimately required NVIDIA to produce: (i) communications about the statements Fisher is alleged in the Amended Securities Complaint to have made to Huang, if any, regardless of where they are found, be it in email, or in written notes taken by Fisher, Huang, or others present for conversations between them; (ii) the Top 5 emails sent to or by Huang or Kress during the Relevant Period to the extent they relate to the Responsive Topics. III. Analysis NVIDIA challenges whether the Stockholders have satisfied each of these requirements. First, NVIDIA argues that the Stockholders' demand for all documents forming the basis of the Public Statements is overbroad, in violation of the statute's form and manner requirements. The Company also contends that the Stockholders constantly changed their requests throughout litigation, adding entirely new categories of documents in violation of the statute's form and manner requirements. Second, NVIDIA argues that the Stockholders' reliance on impermissible hearsay evidence to establish a proper purpose failed to meet the burden of proof required by the statute. Third, NVIDIA argues that the Stockholders did not show a credible basis from which the court could infer wrongdoing or mismanagement. Fourth, the Company alleges that the court's order of production is not essential and sufficient to the stockholders' stated purpose. A. The Stockholders' Request Does Not Violate Section 220's Form and Manner Requirements NVIDIA argues that the Stockholders' request for documents that formed the basis of the Public Statements violates Section 220's form and manner requirements because it is impermissibly broad. The Company also contends that the Stockholders expanded their document requests throughout litigation in violation of Section 220's form and manner requirements. The Delaware Supreme Court disagrees. It holds that the scope of the Stockholders' requests, even if they were initially overbroad, and changes to the Stockholders' requests throughout litigation, do not violate Section 220's form and manner requirements. It says, a determination of the appropriateness of the scope of a stockholder's requests, or any change to the stockholder's requests, has no bearing on whether the plaintiff has satisfied the statute's form and manner requirements. To be sure, a Company can challenge the appropriateness of the scope of document requests and changes to the document requests, but we do not view those challenges as form and manner requirement challenges. The Delaware Supreme Court further holds that there is no blanket rule that requires the Court of Chancery to outright deny those demands that it finds to be overbroad. The Court of Chancery did not abuse its discretion by refusing to deny the demand outright due to its breadth. In other words, it was not an abuse of discretion for the Court of Chancery to choose to craft a production order circumscribed with rifled precision. The Plaintiffs in Section 220 proceedings, however, should take heed that the deference we afford the Court of Chancery in these instances means that a Chancellor's or Vice Chancellor's denial of a demand as impermissibly overbroad will also be subject to an abuse of discretion standard and deference from this Court. B. The Stockholders Did Not Improperly Change Their Requests Throughout Litigation NVIDIA next argues that the Stockholders improperly changed their requests throughout litigation. The Delaware Supreme Court finds that the Court of Chancery was not confused by the Stockholders' request and did not err in determining that the Stockholders' Five Topics request narrowed their original request. Essentially, the Amended Securities Complaint stops a hair short of alleging that Fisher told Huang about the "dangerous" effect of crypto mining on the channel. Given the allegations in the Amended Securities Complaint, it was reasonable for the Court of Chancery to infer that Fisher and Huang communicated about topics detailed in the Five Requests. Moreover, it is likely because the court makes this inference that the court's order only requires the production of communications between Huang and Fisher to the extent they exist: "communications about the statements Fisher is alleged in the Amended Securities Complaint to have made to Huang, if any." C. Although Sufficiently Reliable Hearsay Is Admissible in a Section 220 Action, the Court of Chancery Erred by Allowing Stockholders to Establish Their Purpose with Hearsay Evidence in This Case In its opinion, the Court of Chancery held that that the Stockholders could establish a proper purpose through hearsay statements contained in their demand letters and interrogatory responses. The Company argues that the Court of Chancery erred in allowing the Stockholders to establish a proper purpose with their demand letters and interrogatory responses because those pieces of evidence are inadmissible hearsay. And because the Delaware Uniform Rules of Evidence apply in all actions and proceedings in Delaware courts, without an exception for Section 220 proceedings, the court erred in accepting inadmissible hearsay as competent evidence of a proper purpose. In response, the Stockholders argue that Delaware case law permits the use of hearsay in a Section 220 proceeding so long as the hearsay is sufficiently reliable. They add that Delaware case law "imposes no limitation on the ways sufficiently reliable hearsay may be used in a books and records proceeding." The Delaware Supreme Court holds that holds that a stockholder cannot hide its intent to rely on demands in what appears to be an effort to deprive the company of its right to examine the stockholder through depositions or otherwise. Therefore, the Delaware Supreme Court reverses the Court of Chancery's holding that the Stockholders could show a proper purpose by relying on the Original Demands and interrogatories -- not because sufficiently reliable hearsay may not be used to show a proper purpose but because the Stockholders deprived the Company of its ability to test that purpose through depositions or otherwise -- and remand for further proceedings consistent with this opinion. Because the Delaware Supreme Court has found that the Stockholders deprived the Company of its ability to test the Stockholders' purpose, requiring a remand, it need not address the remaining arguments. Nonetheless, it does so in the interest of efficiency on remand. D. The Court of Chancery Did Not Err by Concluding That the Stockholders Proved a Credible Basis to Infer Wrongdoing The Stockholders relied on the following evidence to show a credible basis from which to infer wrongdoing: (1) NVIDIA's response to the cryptocurrency demand, (2) the Public Statements, (3) the sale of personally held stock by Huang, Kress, and other NVIDIA insiders, (4) NVIDIA's revision of its revenue guidelines, and (5) the Securities Class Action. The Court of Chancery grouped the evidence into the following three categories: (1) false or misleading public statements, (2) the securities litigation, and (3) insider stock sales. The Company argues that the Court of Chancery erred in holding that the Stockholders established a credible basis to suspect wrongdoing because none of the Stockholders' evidence, individually or collectively, is enough to infer an insider trading scheme. As it relates to the stock sales, NVIDIA argues that the sales were not suspicious given the small amount of stock sold and the fact that the sales were made pursuant to 10b-5 plans. As to the Securities Class Action, the Company alleges that it cannot be used to infer wrongdoing because it did not contain allegations about insider trading. And as to the Public Statements, the Company contends that they do not give rise to an inference of wrongdoing because they are either forward-looking, objectively accurate, or immaterial. The Delaware Supreme Court affirms the Court of Chancery's holding that the Stockholders properly demonstrated a credible basis for inspection. As an initial matter, it disagrees with the Company that the Court of Chancery should have determined whether Stockholders showed a credible basis solely on the grounds of insider trading. When showing a credible basis for possible wrongdoing, Section 220 plaintiffs are not confined to a single theory and "need not identify the particular course of action the stockholder will take." Further, while each category of evidence individually might not be sufficient to establish a credible basis to suspect wrongdoing, when viewed collectively, the Delaware Supreme Court cannot conclude that the Court of Chancery abused its discretion in determining that the Stockholders established a credible basis for inspection. It did not abuse its discretion in determining that the Stockholders sufficiently showed that Huang and Kress were informed that there would be a lack of demand for Gaming GPUs after the crypto mining boost and used that information to bolster NVIDIA stock prices by making false or misleading statements about the demand for Gaming GPUs before selling stock at the bolstered stock price. While this evidence likely would fall far short of that necessary to support an actual claim, the Delaware Supreme Court cannot say that it is insufficient to meet the lowest possible burden of proof -- a credible basis from which the Court of Chancery can infer there is possible mismanagement that would warrant further investigation. E. The Court of Chancery Did Not Err in Determining That the Records Ordered to Be Produced Are Essential and Sufficient to the Stockholders' Stated Purpose NVIDIA argues that even if the Stockholders have properly narrowed the scope of their requests, "there is no evidentiary basis for finding that the court's ordered documents are 'necessary, essential and sufficient' for Stockholders' stated purpose." The Delaware Supreme Court holds that because both categories of the ordered documents derive from the evidence presented by the Stockholders and directly relate to the topics detailed in the Five Requests, the record does not support NVIDIA's assertion that the production order fails to satisfy the "essential and sufficient" standard. "Whether any Informal Board Materials or Officer-Level Materials or emails are necessary and essential awaits the Court of Chancery's 'fact specific' determination, which is committed to the court's sound discretion." As such, the Delaware Supreme Court cannot hold that the court erred in ordering the production of those records. Thus, it affirms the judgment of the Court of Chancery on this issue. IV. Conclusion For the foregoing reasons, the Delaware Supreme Court affirms in part, reverses in part, and remands for further proceedings consistent with its Opinion. A full-text copy of the Court's July 19, 2022 Opinion is available at https://tinyurl.com/t62u2ucu from Leagle.com. Gregory P. Williams, Esquire -- williams@rlf.com -- Brock E. Czeschin, Esquire -- czeschin@rlf.com -- Christian C.F. Roberts, Esquire, RICHARDS, LAYTON, & FINGER, P.A., in Wilmington, Delaware; John C. Dwyer, Esquire (argued), Patrick E. Gibbs, Esquire, Claire A. McCormack, Esquire, COOLEY LLP, in Palo Alto, California; for Appellant NVIDIA Corporation. Seth D. Rigrodsky, Esquire (argued) -- sdr@rl-legal.com -- Gina M. Serra, Esquire -- gms@rl-legal.com -- Herbert W. Mondros, Esquire -- hwm@rl-legal.com -- RIGRODSKY LAW, P.A., Wilmington, Delaware; Frank R. Schirripa, Esquire, Hillary Nappi, Esquire, HACH ROSE SCHIRRIPA & CHEVERIE LLP, New York, New York; Gregory Mark Nespole, Esquire, Daniel Tepper, Esquire, LEVI & KORSINSKY, LLP, in New York City; Travis E. Downs III, Esquire, Erik W. Luedeke, Esquire, ROBBINS GELLER RUDMAN & DOWD LLP, in San Diego, California; Thomas J. McKenna, Esquire, Gregory M. Egleston, GAINEY McKENNA & EGLESTON, in New York City; Beth A. Keller, MONTEVERDE & ASSOCIATES PC, in New York City; for Appellees City of Westland Police and Fire Retirement System, Dennis Horanic, Ellen Hoke, Kallestad Trust, and Stephen P. Farkas. PAPA JOHN'S: Fischer Seeks to Certify Class of Delivery Drivers --------------------------------------------------------------- In the class action lawsuit captioned as Blake Fischer, On behalf of him and those similarly situated, v. JohnCol, et al., Case No. 2:22-cv-02779-SDM-EPD (S.D. Ohio), 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, the Plaintiff seeks conditional certification of the following employees: "All current and former delivery drivers employed at Defendants' Papa John'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 Defendants' Papa John's franchise stores. The Plaintiff Fischer alleges that Defendants' pizza delivery drivers are all employed according to the same terms: they receive minimum wage minus a tip credit for all hours worked while completing deliveries, they drive their own cars to deliver Defendants' pizzas, and they are not properly reimbursed for their delivery related expenses. The Plaintiff claims that these employment terms result in a violation of the Fair Labor Standards Act. To operate its business, the Defendants need automobiles to deliver their pizzas. Instead of maintaining a fleet of cars themselves, Defendants require their minimum-wage delivery drivers to supply safe, functioning, insured cars to use at work, the lawsuit says. A copy of Plaintiff's motion to certify class dated July 14, 2022 is available from PacerMonitor.com at https://bit.ly/3orbtu9 at no extra charge.[CC] The Plaintiff is represented by: Riley Kane, Esq. Andrew R. Biller, Esq. Andrew P. Kimble, Esq. BILLER & KIMBLE, LLC www.billerkimble.com 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 PERDUE FARMS: Court Denies in Part Bids to Dismiss Jien Class Suit ------------------------------------------------------------------ In the case, JUDY JIEN, et al., Plaintiffs v. PERDUE FARMS, INC., et al., Defendants, Civil Case No. 1:19-CV-2521-SAG (D. Md.), Judge Stephanie A. Gallagher of the U.S. District Court for the District of Maryland denies the Defendants' motions to dismiss the Third Amended Complaint, except that the motions filed by Jennie-O Turkey Store Inc. and Mountaire Farms, Inc., are granted as to Count I only. I. Introduction Plaintiffs Judy Jien, Kieo Jibidi, Elaisa Clement, Glenda Robinson, Emily Earnest, and Kevin West, on behalf of themselves individually and on behalf of a class of former and current employees, bring suit against 20 poultry processors and several of their subsidiaries or parents ("Defendant Processors"), plus two data consulting companies (collectively "Defendants"). The Third Amended Complaint ("TAC") alleges two violations of Section One of the Sherman Antitrust Act. Specifically, the Plaintiffs allege: (1) a conspiracy among the Defendants, except Peco Foods, Inc. and Agri Stats, Inc. to fix and depress poultry workers' compensation; and (2) a conspiracy among all Defendants for the unlawful exchange of compensation data. Presently pending are five motions to dismiss the TAC. The Plaintiffs filed oppositions; and the Defendants filed replies. II. Background The Plaintiffs filed the action in August, 2019, alleging a conspiracy from January, 2009, onward to fix and depress wages of hourly workers at chicken processing plants. In their consolidated First Amended Complaint ("FAC"), the Plaintiffs asserted the same claims on behalf of an expanded class of hourly and salaried workers at Defendant Processors' poultry (not merely chicken) processing plants. The Defendants filed a series of motions to dismiss, which the Court granted in part and denied in part through a Memorandum Opinion and Order. That Opinion enumerated four holdings relevant to the resolution of the instant motions. First, the FAC provided direct evidence for its per se claim—namely statements by the Defendants' executives fretting about the propriety of wage discussions at secret meetings -- but that the claim could only be sustained against the Defendants who were explicitly linked to the evidence through attendance at such meetings. Second, the Plaintiffs' alleged product market, defined as the poultry processing labor market, was plausible in light of those workers' industry-specific expertise, limited education and language skills, and the fact that Defendants themselves appeared to perceive themselves as a distinct, nationwide unit. Third, the Plaintiffs had plausibly alleged the relevant geographic market to be the continental United States, particularly because Defendants' arguments regarding overbreadth did not warrant dismissal. Fourth, the FAC plausibly alleged anticompetitive effects in the relevant market through secret meetings, the exchange of survey data compiled by Webber, Meng, Sahl and Company, Inc. ("WMS"), and the use of Agri Stats to monitor adherence to the conspiracy. The Plaintiffs subsequently filed a Second Amended Complaint ("SAC") restating its allegations against previously-dismissed Defendants, which the Defendants sought to dismiss on multiple grounds. In its Memorandum Opinion and Order ("MTD Op. II"), the Court denied the motions in their entirety based in part on three key findings. First, the Court found that under the "class certification" approach, the named Plaintiffs (chicken processing workers paid hourly) had standing to pursue claims on behalf of salaried and turkey processing workers because the named Plaintiffs' interests did not differ significantly from the salaried and turkey employees they sought to represent. Second, it held that the SAC adequately stated its per se claim against Jennie-O, Mountaire, and Sanderson Farms Inc., by alleging that they attended at least some secret meetings, thereby linking them to direct evidence of the alleged conspiracy. Third, with regards to the rule of reason claim in Count II, the Court rejected Jennie-O's argument that the SAC failed to allege anticompetitive effects against it because it operated in the Upper Midwest rather than the South. In January 2022, the Plaintiffs sought and obtained leave to file a TAC. The TAC expanded the scope of the action in four material ways. First, the TAC broadened its putative class beyond employees at poultry processing plants to also include workers at Defendant Processors' poultry hatcheries and poultry feed mills (collectively, "poultry workers"). Second, the TAC expanded the class period to extend from January, 2000 until July, 2021. Third, the TAC named seven additional Defendants -- Foster Poultry Farms; Case Foods, Inc.; Case Farms, LLC; O.K. Foods, Inc.; Allen Harim Foods, LLC; Amick Farms, LLC; and Mar-Jac GA. Fourth, the TAC added a new named Plaintiff, Kevin West. The TAC also attributed additional nomenclature and labels to various portions of the alleged conspiracy. Specifically, the annual survey administered by WMS is now referred to as the Poultry Industry Compensation Survey; participants in the Compensation Survey referred to themselves as the Poultry Industry Survey Group. The TAC alleges that the Compensation Survey and Survey Group were "governed and operated by a 'Steering Committee' that consisted of between three and five executives of different Defendant Processors." Likewise, the "annual 'off the books' meetings" at which compensation rates were set are alleged to be called Poultry Industry Compensation Meetings. Five motions to dismiss are currently pending. First, several Defendants challenge the Plaintiffs' standing to pursue claims related to persons employed at the Defendant Processors' hatcheries and feed mills. Second, Foster filed a motion to dismiss for lack of personal jurisdiction and for failure to state a claim. Finally, three individual defendants, Sanderson, Jennie-O, and Mountaire, filed motions challenging the sufficiency of the claims against them. III. Analysis A. Standing In the Rule 12(b)(1) motion, the Defendants insist that the named Plaintiffs, as poultry processing plant employees, lack standing with regards to claims brought on behalf of workers at poultry hatcheries and feed mills. Judge Gallagher disagrees. She opines that the Court already determined that the Plaintiffs adequately alleged their own injuries for purposes of standing. The key inquiry, then, is whether the Plaintiffs' injuries are "shared in common with others who have been similarly harmed by the same defendant's actions." Put differently, the relevant question is not whether there are differences between the named Plaintiffs and workers at hatcheries and feed mills, but rather: whether those differences create divergent interests such that "the class representatives have an insufficient personal stake in the adjudication of the class members' claims?" The Court previously answered that question in the negative, and does so again now. The TAC adequately alleges that workers at the Defendant Processors' poultry processing plants, hatcheries, and feed mills were similarly injured by the Defendants' anticompetitive conduct effectuated through Compensation Meetings, Compensation Surveys, plant-to-plant communications, executive-to-executive communications, and extensive data sharing. The TAC makes clear that the Defendants' conduct was targeted with equal force against workers at processing plants, feed mills, and hatcheries alike. The Defendants' emphasis on the potential dissimilarities among these workers' jobs, skills, and employment alternatives does not change this conclusion. The Plaintiffs have alleged that the Defendants' anticompetitive conduct inflicted the same injuries across all categories of workers. The technical and legalistic concerns are precisely the type of issues that the "class certification" approach reserves for the Rule 23(a) analysis. Judge Gallagher accordingly denies the Defendants' motion under 12(b)(1). To the extent that the Defendants dispute that the Plaintiffs are competent to represent the claims of persons employed at the Defendant Processors' hatcheries and feed mills, they may raise such challenges in the context of a class certification motion pursuant to Fed. R. Civ. P. 23. B. Personal Jurisdiction Judge Gallagher considers the portion of Foster's motion that challenges the Court's exercise of personal jurisdiction to adjudicate the Plaintiffs' claims against it. Foster argues that the Court does not have general or specific jurisdiction over it for purposes of this action. The Plaintiffs do not appear to dispute a lack of general jurisdiction. Instead, they offer two bases for the exercise of specific personal jurisdiction over Foster: (1) Maryland's long-arm statute, which has been interpreted to include the conspiracy theory of personal jurisdiction, and (2) Section 12 of the Clayton Act, 15 U.S.C. Section 22. Judge Gallagher finds that the Plaintiffs' first argument to be both persuasive and dispositive. She finds that the Plaintiffs have alleged that Foster and several Maryland entities conspired to artificially depress the wages of persons employed at poultry processing complexes, including ones located in this State. The Court does not purport to exercise personal jurisdiction based exclusively on Foster's contacts with the Plaintiffs, but rather based on Foster's contacts and relationships with its co-conspirators, and the actions Foster effectuated in this State through those co-conspirators. Accordingly, the Plaintiffs have met their burden of presenting a prima facie showing of personal jurisdiction over Foster under the conspiracy theory of jurisdiction. Having established a basis for personal jurisdiction under Maryland's long-arm statute, the Court must also ensure that the exercise of personal jurisdiction comports with federal due process. The relevant question is whether an out of state defendant has "certain minimum contacts" with the forum state, "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" As stated, Judge Gallagher is satisfied that the Plaintiffs have established a prima facie case that Foster has the requisite minimum contacts with Maryland to comport with due process. The Plaintiffs have alleged that Defendant conspired with several Maryland entities to suppress wages of Defendant Processors' workers in Maryland. Accordingly, under the prima facie standard, the exercise of personal jurisdiction over Foster is constitutionally reasonable and comports with federal due process. Finally, the Plaintiffs may be unable to show that Foster's conduct suffices to establish personal jurisdiction over it in Maryland. C. Legal Sufficiency Next, Judge Gallagher considers the Individual Defendants' various motions to dismiss for failure to state a claim under Rule 12(b)(6). First, Foster objects to the TAC's alleged geographic market for purposes of its rule of reason claim. Judge Gallagher concludes, as the Court did previously, that "at this early stage in the proceeding where the bar to avoid dismissal is low, the geographic market has been plausibly alleged, despite its breadth." She denies Foster's motion. Next, the Court addresses Sanderson's motion seeking dismissal of Count I insofar as it relates to any conduct occurring after Feb. 14, 2012, the date that it claims to have withdrawn from the alleged wage-fixing conspiracy. Judge Gallagher holds that although the TAC contains allegations consistent with a theory that Sanderson withdrew from the alleged conspiracy, it did not adduce facts establishing such withdrawal as a matter of law. Whether and when a defendant withdrew from an alleged conspiracy are fact-intensive inquiries that may rarely be resolved on a motion to dismiss. She expresses no view on whether Sanderson's 2012 email stating that it could no longer participate in the Survey Group was sufficient to effectuate its withdrawal from the alleged wage-fixing conspiracy. However, Sanderson's assertion that the TAC's partial quotation of a single email provided all the facts necessary to conduct an analysis of its withdrawal defense runs contrary to the fact-intensive nature of that inquiry. A fuller evidentiary record is required to determine the applicability of Sanderson's withdrawal defense. Sanderson is accordingly free to reraise its defense at a more appropriate juncture. Finally, Judge Gallagher turns to Mountaire's and Jennie-O's respective motions to dismiss. In their motions, Mountaire and Jennie-O contend that the TAC so thoroughly whittled down the allegations against them such that it no longer states a claim. In opposition, the Plaintiffs argue that the TAC still contains adequate factual matter to connect Mountaire and Jennie-O to both its per se and rule of reason conspiracy claims. The Plaintiffs are correct as to only the latter contention, Judge Gallagher finds. First, she finds that the TAC presents both Mountaire and Jennie-O as one-time attendees to the Compensation Meetings that formed the backbone of the per se wage-fixing conspiracy. It adduces no facts illuminating what actions that Mountaire or Jennie-O undertook at those respective meetings, and does not otherwise allege conduct that connects either of them specifically to direct evidence of the conspiracy to suppress wages. Having failed to do so, the TAC fails to state a per se claim against either Jennie-O or Mountaire. Second, given these specified allegations of information sharing, the Plaintiffs' rule of reason claims against Mountaire and Jennie-O survive even absent allegations of consistent participation in Compensation Meetings or plant-to-plant communications. As the Court has already twice determined, the Plaintiffs have plausibly pled that the Defendants' information sharing had anticompetitive effects. Moreover, because the TAC sufficiently links Mountaire and Jennie-O to the information exchanges -- principally through their use of Agri Stats -- there is a factual predicate to support the inference that their use of exchanged data had anticompetitive effects. Accordingly, Mountaire's and Jennie-O's motions is be denied as to Count II. IV. Conclusion For the reasons set forth, Judge Gallagher denies the Defendants' Motion to Dismiss for lack of standing; denies Defendant Foster's Motion to Dismiss; denies Defendant Sanderson's Motion to Dismiss; grants Defendant Jennie-O's Motion to Dismiss as to Count I and denies as to Count II; and grants Defendant Mountaire's Motion to Dismiss as to Count I and denies as to Count II. A separate Order follows. A full-text copy of the Court's July 19, 2022 Memorandum Opinion is available at https://tinyurl.com/yxemntbk from Leagle.com. PHARMAVITE LLC: Whitaker Sues Over Mislabeled Vitamin C Products ---------------------------------------------------------------- MARIA MENDEZ WHITAKER, on behalf of herself and all others similarly situated, Plaintiff v. PHARMAVITE LLC, Defendant, Case No. 2:22-cv-04732 (C.D. Cal., July 11, 2022) seeks to challenge Defendant's alleged false and deceptive practices in the marketing and sale of its Nature Made(R) Extra Strength Chewable Vitamin C products in violation of the California's Consumers Legal Remedies Act, the California's False Advertising Law, and the California's Unfair Competition Law. According to the complaint, the Defendant has falsely and deceptively labeled the products as being "Extra Strength." Based on this representation, reasonable consumers are led to believe that each tablet contained in the products has a higher dose of Vitamin C than each tablet contained in Defendant's Nature Made(R) regular strength chewable Vitamin C products. Unbeknownst to consumers, the products do not have a higher dose of Vitamin C per tablet than the Regular Strength products. As such, the products are not "Extra Strength" and are therefore falsely and deceptively labeled, says the suit. The Plaintiff purchased the products and paid a premium price based upon her reliance on Defendant's "Extra Strength" representation. Had Plaintiff and Class members been aware that the products were not in fact "Extra Strength," Plaintiff and Class members would not have purchased the products or would have paid significantly less for them. Accordingly, Plaintiff and Class members have been injured by Defendant's deceptive business practices, the suit asserts. Pharmavite LLC is an American dietary supplements company.[BN] The Plaintiff is represented by: Robert Abiri, Esq. CUSTODIO & DUBEY, LLP 445 S. Figueroa Street, Suite 2520 Los Angeles, CA 90071 Telephone: (213) 593-9095 Facsimile: (213) 785-2899 E-mail: abiri@cd-lawyers.com PHARMAVITE LLC: Wittman Sues Over Mislabeled Vitamin C Products --------------------------------------------------------------- DAVID WITTMAN, on behalf of herself and all others similarly situated, Plaintiff v. PHARMAVITE LLC, Defendant, Case No. 2:22-cv-04061 (E.D.N.Y., July 11, 2022) seeks to challenge Defendant's alleged false and deceptive practices in the marketing and sale of its Nature Made(R) Extra Strength Chewable Vitamin C products in violation of the California's Consumers Legal Remedies Act, the California's False Advertising Law, and the California's Unfair Competition Law. According to the complaint, the Defendant has falsely and deceptively labeled the products as being "Extra Strength." Based on this representation, reasonable consumers are led to believe that each tablet contained in the products has a higher dose of Vitamin C than each tablet contained in Defendant's Nature Made(R) regular strength chewable Vitamin C products. Unbeknownst to consumers, the products do not have a higher dose of Vitamin C per tablet than the Regular Strength products. As such, the products are not "Extra Strength" and are therefore falsely and deceptively labeled, says the suit. The Plaintiff purchased the products and paid a premium price based upon her reliance on Defendant's "Extra Strength" representation. Had Plaintiff and Class members been aware that the products were not in fact "Extra Strength," Plaintiff and Class members would not have purchased the products or would have paid significantly less for them. Accordingly, Plaintiff and Class members have been injured by Defendant's deceptive business practices, the suit asserts. Pharmavite LLC is an American dietary supplements company.[BN] The Plaintiff is represented by: Robert Abiri, Esq. CUSTODIO & DUBEY, LLP 445 S. Figueroa Street, Suite 2520 Los Angeles, CA 90071 Telephone: (213) 593-9095 Facsimile: (213) 785-2899 E-mail: abiri@cd-lawyers.com PROAMPAC INTERMEDIATE: Parties Seek to Certify FLSA Collective -------------------------------------------------------------- In the class action lawsuit captioned as AARON MAGALHAES and BETH KIMMEL, on behalf of themselves and all others similarly situated, v. PROAMPAC INTERMEDIATE, INC., et. al., Case No. 20-cv-1333 (E.D. Wisc.), the Parties ask the Court to enter an order: 1. Preliminarily approving the Settlement Agreement as fair, reasonable, and adequate; 2. Certifying, for settlement purposes only, this case as a collective action under 29 U.S.C. section 216(b) and a class action under FED. R. CIV. P. 23; 3. Appointing Aaron Magalhaes and Beth Kimmel as Class Representatives; 4. Appointing Walcheske & Luzi, LLC as Class Counsel; 5. Approving the Notice Packet and Consent to Join Form of the Settlement Agreement for distribution to all members of the putative Settlement Class; 6. Finding that the Notice Packet to be given constitutes the best notice practicable under the circumstances, including individual notices to all putative Settlement Class members who can be identified with reasonable effort, and constitutes valid, due, and sufficient notice to putative Settlement Class members, in full compliance with the requirements of applicable law, including the Due Process Clause of the United States Constitution; 7. Directing that each member of the Putative Settlement Classes who wishes to be excluded from the Settlement Class must exclude him or herself no later than 30 calendar days after the mailing of the Notice Packet, per the instructions set forth in the Notice Packet and that such exclusion must be received by the dates set forth in the Court's Preliminary Approval Order; 8. Directing that any member of the putative Fair Labor Standards Act (FLSA) Collective who wishes to participate in the Settlement and to receive compensation under the terms of this Agreement must submit a Consent to Join Form during the Notice Period; 9. Directing that any member of the putative FLSA Collective who timely submits a Consent to Join Form during the Notice Period and who becomes part of the FLSA Collective will be bound by this Agreement and shall release all FLSA claims in the event the Court issues a Final Order approving the Settlement; 10. Directing that any member of the WWPCL Class who does not exclude himself or herself during the Notice Period per the instructions set forth in the Notice Packet will be bound by this Agreement and shall release all wage-hour claims against the Defendants, including WWPCL claims, in the event the Court issues a Final Order approving the Settlement; 11. Scheduling a Fairness Hearing approximately 75 days after the conclusion of the Notice Period to determine whether the Settlement Agreement should be finally approved as fair, reasonable, and adequate, and whether the proposed Final Order Approving the Settlement should be entered; 12. Directing that Class Counsel shall file any remaining Motions -- including a Motion for Attorneys' Fees and Costs, a Motion for Plaintiffs' Service Payment, and a Motion for Final Settlement Approval -- at least 21 calendar days prior to the Fairness Hearing and that the Court shall determine at the Fairness Hearing the amount of attorneys' fees, costs and administration-related fees and costs that shall be awarded to Class Counsel; and 13. Directing that any member of the putative Settlement Class who wishes to object to the Motion for Attorneys' Fees and Costs, Motion for Plaintiff's Service Payment, and/or Motion for Final Settlement Approval -- file the same at least 14 calendar days prior to the Fairness Hearing in accordance with the instructions set forth in the Notice Packet. ProAmpac is a global flexible packaging company. A copy of the Court's order dated July 14, 2022 is available from PacerMonitor.com at https://bit.ly/3Bapcgxv at no extra charge.[CC] The Plaintiffs are represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Telephone: (262) 780-1953 E-mail: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com The Defendants are represented by: Tony H. McGrath, Esq. JACKSON LEWIS P.C. 22 East Mifflin Street, Suite 800 Madison, WI 53703 Telephone: (608) 807-5274 E-mail: Tony.McGrath@jacksonlewis.com PRUDENT FIDUCIARY: Second Scheduling Order Entered in Ahrendsen --------------------------------------------------------------- In the class action lawsuit captioned as SHARI AHRENDSEN, et al., v. PRUDENT FIDUCIARY SERVICES, LLC, et al., Case No. 2:21-cv-02157-HB (E.D. Pa.), the Hon. Judge Harvey Bartle III entered a second scheduling order as follows: 1. The First Scheduling Order dated February 7, 2022 is vacated. 2. All class certification and merit discovery shall proceed forthwith and continue in such a manner as will assure that all requests for, and responses to, discovery will be served, noticed, and completed by January 31, 2023. 3. The Plaintiffs shall file any motion for class certification on or before October 5, 2022. 4. The Defendants shall file any briefs in opposition to plaintiffs' motion for class certification on or before November 4, 2022. 5. The Plaintiffs shall file any reply briefs in support of class certification on or before November 19, 2022. 6. The Plaintiffs shall serve, on or before March 17, 2023, any reports of expert witnesses. 7. The Defendants shall serve, on or before May 1, 2023, any reports of expert witnesses. 8. The Plaintiffs shall serve, on or before May 22, 2023, any reports of rebuttal expert witnesses responding only to those issues raised for the first time in the reports of defendants' experts. 9. Parties shall conduct any depositions of expert witnesses on or before July 6, 2023. Prudent Fiduciary Services provides professional Independent Fiduciary, Employee Retirement Income Security Act of 1974 (ERISA) Consulting, and Expert Witness services related to ESOPs and other employees. A copy of the Court's order dated July 13, 2022 is available from PacerMonitor.com at https://bit.ly/3b3OkLi at no extra charge.[CC] RADICALMEDIA LLC: Fails to Pay Proper Wages, Shinjo Suit Says ------------------------------------------------------------- D. SHINJO, individually and on behalf of all others similarly situated, Plaintiff v. RADICALMEDIA, LLC, and DOE 1 through and including DOE 10, Defendants, Case No. 2:22-cv-04738 (C.D. Cal., July 11, 2022) is a class action brought pursuant to the California Labor Code and the Fair Labor Standards Act arising from the Defendants' unlawful labor practices and policies. According to the complaint, the Defendants violate state and federal laws by failing to timely pay Plaintiff all wages accrued upon separation from employment, failing to provide compliant wage statements or pay stubs, failing to provide rest breaks, and engaging in unfair business practices. Mr. Shinjo was employed by the Defendants on April 16, 2022, to provide them with services on a location shoot for an Acura commercial. When he ceased working for Defendants, the Plaintiff asserts that he was not timely paid all wages accrued, including minimum wages or overtime, a violation of the FLSA giving rise to a right for liquidated damages. RadicalMedia, LLC is a fully integrated and independent global media and communications company.[BN] The Plaintiff is represented by: Alan Harris, Esq. Priya Mohan, Esq. HARRIS & RUBLE 655 North Central Avenue 17th Floor Glendale, CA 91203 Telephone: (323) 962-3777 Facsimile: (323) 962-3004 E-mail: harrisa@harrisandruble.com pmohan@harrisandruble.com RECON OILFIELD: Filing of Response to Conditional Cert Extended --------------------------------------------------------------- In the class action lawsuit captioned as Klees v. Recon Oilfield Services, Inc., et al., Case No. 2:22-cv-01895 (S.D. Ohio), the Hon. Judge Chelsey M. Vascura entered an order granting motion for extension of time to file response as to motion to certify class conditional certification and court-authorized notice to Potential Opt-In Plaintiffs Pursuant to 29 U.S.C. section 216(b) Responses are due by Aug. 3, 2022, Judge Vascura says. The suit alleges violates Fair Labor Standards Act.[CC] RECOVCO MORTGAGE: Agudelo Sues Over Unlawful Labor Practices ------------------------------------------------------------ NATHANIEL AGUDELO and HELEN OWENS, on behalf of themselves and others similarly situated, Plaintiff, and Lead Plaintiff for the Proposed Class v. RECOVCO MORTGAGE MANAGEMENT LLC, SPROUT MORTGAGE LLC, and MICHAEL STRAUSS, Defendants, Case No. 1:22-cv-04004 (E.D.N.Y, July 8, 2022) is a class action by Plaintiffs and other similarly situated for recovery of damages by reason of all of Defendants' violation of the Fair Labor Standards Act, the New York Labor Law, and Plaintiffs' rights under the federal Worker Adjustment and Retraining Notification Act. This action is brought to recover unpaid minimum wages and withheld regular wages owed to Plaintiffs and other similarly situated employees of Defendants, in addition to damages for Corporate Defendants' alleged failure to provide required advance notice of mass layoffs under the WARN Act, as well as injunctive and declaratory relief against Defendants' unlawful actions, and attorney fees' and costs. Plaintiffs Agudelo and Owens worked for the Defendants as closing disclosure specialists from November 1, 2020 and from December 1, 2020, respectively, until they were both terminated without cause on July 6, 2022. Recovco Mortgage Management LLC is a financial services institution headquartered in New York, Texas, and Florida.[BN] The Plaintiffs are represented by: Brenna Rabinowitz, Esq. Jason Rozger, Esq. MENKEN SIMPSON & ROZGER LLP 80 Pine St., 33rd Fl. New York, NY 1005 Telephone: (212) 509-1616 E-mail: brabinowitz@nyemployeelaw.com jrozger@nyemployeelaw.com SHIELDS HEALTH: Komar Balks at Unprotected Patients' Personal Info ------------------------------------------------------------------ TENNIE KOMAR, on behalf of herself and all others similarly situated, Plaintiff v. SHIELDS HEALTH CARE GROUP, INC., Defendant, Case No. 1:22-cv-11109-JCB (D. Mass., July 8, 2022) is brought by the Plaintiff alleging claims for negligence, negligence per se, breach of fiduciary duty, and declaratory judgment, seeking actual and putative damages, with attorneys' fees, costs, and expenses, and appropriate injunctive and declaratory relief, as a direct and proximate result of Shields' alleged inadequate data security. The Plaintiff brings this class action on behalf of individual patients who used Shields' services whose personally identifying information (PII) or protected health information (PHI) were allegedly accessed and exposed to unauthorized third parties during a data breach of Shields' system, which Shields states occurred between March 7, 2022, and March 28, 2022 and involved the "managing and imaging services" Shields provides for approximately 56 distinct "facility partners." Based on the public statements of Shields to date, a wide variety of PII and PHI was implicated in the breach, including full name, Social Security number, date of birth, home address, provider information, diagnosis, billing information, insurance number and information, medical record number, patient ID, and other medial or treatment information, the suit says. Despite the fact that Shields became aware of the data breach by March 28, 2022, it failed to notify Plaintiff and the putative Class members within 60 days as required by law. Notably, Shields failed to notify Plaintiff of the data breach for more than two months from its discovery of the same, asserts the suit. The Plaintiff and Class Members are now at a significantly increased risk of fraud, identity theft, misappropriation of health insurance benefits, intrusion of their health privacy, and similar forms of criminal mischief, which risk may last for the rest of their lives. Consequently, the Plaintiff and Class Members must devote substantially more time, money, and energy to protect themselves, to the extent possible, from these crimes, the suit added. Shields Health Care Group, Inc. provides imaging equipment and technologies. The Company offers medical imaging, radiation oncology, MRI, pet and CT scans, and other related products. Shields Health Care Group serves customers in the State of Massachusetts.[BN] The Plaintiff is represented by: Jason M. Leviton, Esq. BLOCK & LEVITON LLP 260 Franklin Street, Suite 1860 Boston, MA 02110 Telephone: (617) 398-5600 E-mail: jason@blockleviton.com - and - Gary F. Lynch, Esq. Jamisen A. Etzel, Esq. LYNCH CARPENTER, LLP 1133 Penn Ave., Fl. 5 Pittsburgh, PA 15222 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: gary@lcllp.com jamisen@lcllp.com SYNCHRONY FINANCIAL: Court Affirms Dismissal of Securities Suit --------------------------------------------------------------- Synchrony Financial disclosed in its Form 10-Q, filed with the Securities and Exchange Commission on July 21, 2022, that in February 16, 2021, the Court of Appeals affirmed the dismissal of the Securities Act claim filed in the US District Court for the District of Connecticut over a putative class action lawsuit filed in November 2, 2018 captioned "Retail Wholesale Department Store Union Local 338 Retirement Fund v. Synchrony Financial, et al." The lawsuit asserts violations of the Exchange Act for allegedly making materially misleading statements and/or omitting material information concerning the company's underwriting practices and private-label card business, and was filed on behalf of a putative class of persons who purchased or otherwise acquired its common stock between October 21, 2016 and November 1, 2018. The complaint seeks an award of unspecified compensatory damages, costs and expenses. In February 5, 2019, the court appointed Stichting Depositary APG Developed Markets Equity Pool as lead plaintiff for the putative class. In April 5, 2019, an amended complaint was filed, asserting a new claim for violations of the Securities Act in connection with statements in the offering materials for the company's December 1, 2017 note offering. The Securities Act claims are filed on behalf of persons who purchased or otherwise acquired Company bonds in or traceable to the December 1, 2017 note offering between December 1, 2017 and November 1, 2018. The amended complaint names as additional defendants two additional company officers, the company's board of directors, and the underwriters of the December 1, 2017 note offering. The amended complaint is captioned "Stichting Depositary APG Developed Markets Equity Pool and Stichting Depositary APG Fixed Income Credit Pool v. Synchrony Financial et al." On March 26, 2020, the District Court re-captioned the case "In re Synchrony Financial Securities Litigation" and on March 31, 2020, the District Court granted the defendants' motion to dismiss the complaint with prejudice. In April 20, 2020, plaintiffs filed a notice to appeal the decision to the United States Court of Appeals for the Second Circuit. In February 16, 2021, the Court of Appeals affirmed the District Court's dismissal of the Securities Act claims and all of the claims under the Exchange Act with the exception of a claim relating to a single statement on January 19, 2018 regarding whether Synchrony was receiving pushback on credit from its retail partners. Synchrony provides a range of credit products through programs established with a diverse group of national and regional retailers, local merchants, manufacturers, buying groups, industry associations and healthcare service providers. TAKEDA PHARMACEUTICALS: Parties Seeks Class Cert Briefing Order --------------------------------------------------------------- In the class action lawsuit captioned as ROBERT FORD, et al., v. TAKEDA PHARMACEUTICALS U.S.A., INC., et al., Case No. 1:21-cv-10090-WGY (D. Mass.), the Parties ask the Court to grant their motion regarding class certification briefing and directing the Defendants' response to the Plaintiffs' motion be due on August 19, 2022, and Plaintiffs' reply in support of their Motion be due on August 26, 2022. Takeda provides pharmaceutical services. A copy of Parties' motion dated July 13, 2022 is available from PacerMonitor.com at https://bit.ly/3PMRwJW at no extra charge.[CC] The Plaintiffs are represented by: Jerome J. Schlichter, Esq. Troy A. Doles, Esq. Heather Lea, Esq. Sean E. Soyars, Esq. SCHLICHTER BOGARD & DENTON LLP 100 South Fourth Street, Suite 1200 St. Louis, MO, 63102 Telephone: (314) 621-6115 Facsimile: (314) 621-5934 E-mail: jschlichter@uselaws.com tdoles@uselaws.com hlea@uselaws.com ssoyars@uselaws.com - and - Robert T. Naumes, Esq. Christopher Naumes, Esq. NAUMES LAW GROUP 2 Granite Ave, #425 Milton, MA 02186 Telephone: (617) 227-8444 Facsimile: (617) 696-2437 E-mail: robert@naumeslaw.com christopher@naumeslaw.com The Defendants are represented by: Sari M. Alamuddin, Esq. MORGAN, LEWIS & BOCKIUS LLP Sari M. Alamuddin (pro hac vice) 77 West Wacker Drive, Fifth Floor Chicago, IL 60601-5094 Telephone: (312) 324-1000 E-mail: sari.alamuddin@morganlewis.com - and - Melissa D. Hill, Esq. 101 Park Avenue New York, NY 10178-0060 Telephone: (212) 309-6000 E-mail: melissa.hill@morganlewis.com - and - Abbey M. Glenn, Esq. 1111 Pennsylvania Avenue, NW Washington, DC 20004-2541 Telephone: (202) 739-3000 E-mail: abbey.glenn@morganlewis.com - and - Keri L. Engelman, Esq. One Federal Street Boston, MA 02110-1726 Telephone: (617) 341-7700 E-mail: keri.engelman@morganlewis.com TARGET CORP: Sexton Suit Remanded to Milwaukee County Circuit Court ------------------------------------------------------------------- In the case, TAMARA SEXTON, individually and on behalf of all others similarly situated, Plaintiff v. TARGET CORPORATE SERVICES, INC. and TD BANK USA, N.A., Defendants, Case No. 21-CV-1492 (E.D. Wis.), Magistrate Judge Nancy Joseph of the U.S. District Court for the Eastern District of Wisconsin grants the Plaintiff's motion to remand the case back to state court. I. Introduction On Nov. 26, 2021, Sexton filed a class action complaint in Milwaukee County Circuit Court against the Defendants, alleging violations of the Wisconsin Consumer Act ("WCA"). The Defendants removed the action to the Court under the Class Action Fairness Act ("CAFA") on Dec. 31, 2021. Sexton now moves to remand the case back to state court for lack of subject matter jurisdiction and for an award of costs and fees for the improper removal. II. Background According to Sexton's complaint, on Jan. 13, 2020, the Defendants sent her a letter regarding a debt she allegedly owed to TD Bank, an issuer of Target store branded credit cards. The letter allegedly represented that Sexton had an account balance of $1,964.49, with a payment of $208 due by Jan. 28, 2020. Sexton alleges that pursuant to the WCA, a merchant must provide a customer with notice of default and the customer's right to cure default before a lender may accelerate the balance of a consumer credit transaction. Ms. Sexton alleges that the Defendants' letter is misleading, deceptive, and unconscionable; does not fairly provide consumers with notice of their right to cure default; and does not satisfy the defendants' statutory or contractual obligations. Specifically, she alleges that the letter purports to accelerate the installment payment due on Jan. 28, 2020 and describes the installment as late and placing Sexton's account into default, even though the letter was mailed on Jan. 13, 2020, two weeks before the payment was actually due. Sexton alleges that an unsophisticated consumer would understand the letter to mean that she could not cure the default without paying $208, when, pursuant to Wisconsin law, a consumer could avoid acceleration and bring the account current by tendering the previous month's payment balance by Jan. 27, 2020. She further alleges that she was "confused and misled" by the letter. III. Analysis Ms. Sexton argues that the case should be remanded to state court for lack of subject matter jurisdiction because she lacks Article III standing to pursue her WCA claims in federal court. Under 28 U.S.C. Section 1447(c), a case removed from state court must be remanded if it appears, at any time before final judgment is entered, that the district court lacks subject matter jurisdiction. Additionally, an order remanding a case "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." Judge Joseph considers the issues of Article III standing and fees and costs in turn. A. Article III Standing Ms. Sexton asserts that her complaint fails to allege that she suffered a concrete injury in fact. For the purposes of Article III standing, an injury is concrete if it is "real, and not abstract." Concrete injuries include both "traditional tangible harms, such as physical harms and monetary harms," and intangible harms, including "reputational harms, disclosure of private information, and intrusion upon seclusion." Furthermore, the Supreme Court has rejected the notion that a plaintiff "automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right." Instead, "Article III standing requires a concrete injury even in the context of a statutory violation." Ms. Sexton asserts that her allegations regarding the Defendants' alleged violations of the WCA are indistinguishable from those rejected as insufficient by the Seventh Circuit to allege a concrete injury for Article III standing in the context of the Fair Debt Collection Practices Act ("FDCPA"). The FDCPA is a federal statute that seeks to eliminate abusive debt collection practices by debt collectors. Judge Joseph holds that the analysis of whether Sexton meets federal standing requirements for her WCA claims is informed by the Seventh Circuit's interpretation of the WCA's federal counterpart. She finds that (i) Sexton's allegation that the Defendants deprived her of accurate information regarding her alleged debt does not translate into a concrete injury in fact for the purposes of Article III standing; (ii) the allegation that Sexton was misled by the letter, without more, is insufficient to establish a concrete injury in fact; (iii) Sexton's allegation that the Defendants deprived her of accurate information regarding her alleged debt does not translate into a concrete injury in fact for the purposes of Article III standing; and (iv) the Defendants provide no support for the conclusion that a conclusory allegation, without any explanation of resulting harm, is sufficient for Article III standing. For these reasons, Judge Joseph finds that Sexton lacks Article III standing and as a result, the Court lacks subject matter jurisdiction. She remands the case back to state court. B. Fees and Costs Ms. Sexton contends that the Defendants' removal of the case to federal court was objectively unreasonable and warrants an award of the fees and costs incurred in connection with the improper removal. The Defendants seemingly contend that an award of fees and costs is unjustified because Sexton's attorney did not mention Article III standing as a basis for remand in response to the Defendants' notice of removal. Again, the removal statute provides that an order remanding a case to state court "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." The Supreme Court has stated that "[a]bsent unusual circumstances, courts may award attorney's fees under Section 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal." Judge Joseph holds that the Defendants' removal of the case to federal court was objectively unreasonable. As explained, at the time of removal, several Seventh Circuit decisions made clear its position on standing for alleged FDCPA violations, particularly with respect to deceptive or misleading debt collection letters. Considering these circumstances, the Defendants did not reasonably remove Sexton's WCA action to federal court. As such, Sexton is entitled to the costs and fees incurred as a result of the improper removal. IV. Conclusion In light of the foregoing, Judge Joseph grants the Plaintiff's motion to remand and for an award of costs and fees. The Clerk of Court is directed to remand the case, number 21-CV-1492 in the U.S. District Court for the Eastern District of Wisconsin, to Milwaukee County Circuit Court. The Plaintiff must submit an affidavit or other certification detailing the reasonable costs and fees incurred as a result of the removal within 10 days of the date of the Order. The Defendants will have 10 days from the date of the Plaintiff's affidavit to respond. A full-text copy of the Court's July 19, 2022 Decision & Order is available at https://tinyurl.com/4vp5epu3 from Leagle.com. TENANTREPORTS.COM LLC: Scheduling Order Entered in McKey Suit ------------------------------------------------------------- In the class action lawsuit captioned as BENJAMIN MCKEY, individually and as a representative of the Class, v. TENANTREPORTS.COM, LLC, Case No. 2:22-cv-01908-GJP (E.D. Pa.), the Hon. Judge Gerald J. Pappert entered a scheduling order as follows: 1. Fact discovery shall be completed January 30, 2023 on or before: 2. The Plaintiff shall produce his January 30, 2023 expert report(s) on or before: 3. The Defendant shall produce its February 21, 2023 expert report(s) on or before: 4. Rebuttal disclosures shall be March 7, 2023 produced on or before: 5. All expert discovery, including March 28, 2023. depositions, shall be completed on or before: 6. The Plaintiff shall file his April 27, 2023 motion for class certification on or before: 7. The Defendant shall file its May 26, 2023 response on or before: 8. The Plaintiff's reply, if any, June 9, 2023 shall be filed on or before: TenantReports.com is a website that provides comprehensive tenant screening solutions to prospective landlords and property managers. A copy of the Court's order dated July 13, 2022 is available from PacerMonitor.com at https://bit.ly/3Be3SH8 at no extra charge.[CC] TRANS UNION: $9MM Class Settlement in Ramirez Suit Wins Prelim. OK ------------------------------------------------------------------ In the case, SERGIO L. RAMIREZ, Plaintiff v. TRANS UNION, LLC, Defendant, Case No. 12-cv-00632-JSC (N.D. Cal.), Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California grants the Plaintiff's motion for preliminary approval of the class action settlement. I. Overview Plaintiff Ramirez filed the class action alleging that Defendant Trans Union violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. Section 1681 et seq., through its OFAC Name Screen Alert. The OFAC Name Screen Alert or OFAC Alert is a service Trans Union provides to its customers which identifies persons whose names match individuals (known as Specially Designated Nationals or SDNs) on the United States government's list of terrorists, drug traffickers, and others with whom Americans are prohibited from doing business. After a jury returned a verdict in the Plaintiff's favor, Trans Union appealed and the Ninth Circuit Court of Appeals affirmed the verdict except for the amount of punitive damages. The Supreme Court subsequently reversed the Ninth Circuit's finding that all class members had Article III standing and remanded the action to the Court. Following remand, the parties' participated in a mediation and reached a class-wide settlement. The Plaintiff now moves for preliminary approval of the class action settlement. Having considered the Plaintiff's motion, his supplemental submission in response to the Court's order, and the relevant legal authority, Judge Corley concludes that oral argument is unnecessary, vacates the July 28, 2022 hearing, and grants the motion for preliminary approval. II. Background Mr. Ramirez brought the action on behalf of himself and a putative class alleging that over a six-month period in 2011 Trans Union violated three FCRA requirements: (1) that credit reporting agencies establish "reasonable procedures" to ensure the "maximum possible accuracy" of information provided about consumers under 15 U.S.C. Section 1681e(b); (2) that credit reporting agencies "clearly and accurately" disclose "all information in the consumers file at the time of a request" under Section 1681g(a), and (3) that credit reporting agencies provide a statement of consumer rights with each such disclosure under Section 1681g(c). In July 2014, the Court certified a Rule 23(b)(3) class of "all natural persons in the United States and its Territories to whom Trans Union sent a letter similar in form to the March 1, 2011 letter Trans Union sent to Plaintiff regarding 'OFAC (Office of Foreign Assets Control) Database' from Jan. 1, 2011 - July 26, 2011." Before trial, the parties stipulated that the class contained 8,185 individuals, 1,853 of whom had their credit reports requested by a third-party creditor during the class period. Following a weeklong trial, the jury reached a verdict in favor of the Plaintiff and the class and awarded over $60 million in statutory and punitive damages. Trans Union appealed and the Ninth Circuit Court of Appeals affirmed the jury's verdict, except as to punitive damages which it reduced to $3,936.88 per class member (from $6,353.08 per class member). The Supreme Court then granted Trans Union's petition for certiorari and reversed in part. In particular, the Supreme Court held that "the 6,332 class members whose credit reports were not provided to third-party businesses did not suffer a concrete harm and thus do not have standing as to the reasonable-procedures claim" and that none of the class members had standing to pursue the disclosure claims because they had not "suffered a concrete harm." The Ninth Circuit remanded the case to the Court for further proceedings consistent with the Supreme Court's decision. On remand, the parties agreed to participate in mediation and with the assistance of the Honorable Morton Denlow (Ret.) reached a class-wide resolution of the action. The Settlement Class is composed the two categories of individuals: (1) the 1,853 class members Trans Union identified in its pre-trial stipulation as individuals for whom Trans Union had delivered a credit report containing OFAC data to a third-party, and (2) class members from the remaining group of 6,332 individuals not identified in the stipulation who submit a claim demonstrating publication of OFAC data to a third-party during the class period. The Settlement Agreement requires Trans Union to establish a Settlement Fund of $9 million. An initial deposit of $30,000 will be paid to the Settlement Administrator within 15 business days following the entry of the preliminary approval order, and the balance of $8.97 million will be paid to the Settlement Administrator following Final Approval. From the Settlement Fund, the parties have agreed that payments will be made as set forth: Class Counsel may request an award of attorneys' fees and costs not to exceed $4.5 million and an individual settlement and service award for Mr. Ramirez of $75,000; the costs of notice and settlement administration, which are estimated at $70,000; and each Settlement Class member will be entitled to a pro rata share of all the funds remaining in the Settlement Fund after payments of the above amounts. If these amounts are approved by the Court, the counsel estimates that based on a 5% claim rate for those Settlement Class Members required to submit a claim, Settlement Class Members would receive approximately $2,000 each. Each Settlement Class Member who receives a payment under the Settlement Agreement will release any and all claims for actual, statutory, and punitive damages under the FCRA as set forth in 15 U.S.C. Sections 1681e(b), 1681g(a)(1), and 1681g(a)(3), and for actual, statutory, and punitive damages and injunctive relief under the CCRAA as set forth in Cal. Civ. Code Sections 1785.10, 1785.14(b), and 1785.31. Mr. Ramirez will provide a general release of any and all claims known and unknown that would have been asserted or which may arise in the future. In addition, Mr. Ramirez and Settlement Class Members waive "any and all rights" under California Civil Code Section 1542 which excludes from release those claims which are unknown at the time of the release. After a competitive bidding process, the Plaintiff selected Continental DataLogix, LLC as the Settlement Administrator. The team at Continental DataLogix is the same team that previously provided Court-approved litigation notice in the action. Within five days of the Order, Trans Union will provide the Settlement Administrator with updated mailing address information for all 8,185 individuals identified in the parties' pre-trial stipulation. Within 30 days of entry of the Preliminary Approval Order, the Settlement Administrator will mail and email notice to each of these individuals. The Settlement Administrator will use Accurint, a batch service offered by LexisNexis "to identify an email address for each Settlement Class Member" and send copies of the notices by email. For any notices returned by mail as undeliverable, the Settlement Administrator will do address tracing with USPS and with a commercial search form if no address exists with the USPS, and then remail notice. In addition, the Settlement Administrator will create a website: www.RamirezTUSettlment.com and toll-free number. The toll-free number will be staffed by live operators and "shall be capable of providing general information, in English and in Spanish, concerning deadlines for objecting to the Settlement, and the dates of relevant Court proceedings, including the Final Approval Hearing." The parties have revised the form notice to provide different forms of notice to those class members who do not need to submit a claim form, and those that do. Any member of the Settlement Class can object to the Settlement or the Fee Petition. III. Discussion The approval of a settlement is a multi-step process. At the preliminary approval stage, the court should grant such approval only if it is justified by the parties' showing that the court will likely be able to (1) "certify the class for purposes of judgment on the proposal" and (2) "approve the proposal under Rule 23(e)(2)." If the court preliminarily certifies the class and finds the settlement appropriate after "a preliminary fairness evaluation," then the class will be notified, and a final fairness hearing scheduled to determine if the settlement is fair, adequate, and reasonable pursuant to Rule 23. A. Class Certification The Settlement Agreement narrows the class to those individuals whom Trans Union either concedes had OFAC data provided about them to a third-party or those who submit a claim form and demonstrate that they had OFAC data provided to a third-party. These modifications are directly in response to the Supreme Court's order which held that only "class members whose credit reports were provided to third-party businesses suffered a concrete harm and thus have standing as to the reasonable-procedures claim" and that no "class members other than the named plaintiff Ramirez suffered a concrete harm" for purposes of the disclosure claims. Accordingly, Judge Corley grants preliminary approval of the Settlement Class. B. Preliminary Approval of the Settlement Agreement In determining whether a class action settlement agreement is fair, adequate, and reasonable to all concerned, courts generally consider the following factors: (1) the strength of the plaintiff's case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members of the proposed settlement. Judge Corley finds that (i) the Settlement Agreement appears to be the product of serious, informed, non-collusive negotiations; (ii) she finds no obvious deficiencies on the face of the Settlement Agreement that would preclude preliminary approval; (iii) given the unique posture of the action, there is no indication that the service award in general constitutes "preferential treatment" such that it would defeat preliminary approval; and (iv) on balance, the risks and costs of continued litigation balanced against the substantial monetary relief here, warrant preliminary approval and comment from class members. Accordingly, consideration of the fairness factors warrants preliminary approval of the Settlement Agreement. With respect to the Class Notice Plan, Judge Corley holds that the procedures appear sufficient to ensure that the class members receive adequate notice of the settlement and an opportunity to object. Accordingly, the Revised Notices and notice plan support preliminary approval. Regarding the attorneys' fees, Judge Corley finds that the Settlement Agreement provides for a maximum award of $4.5 million to the Class Counsel in fees (one-half of the Settlement Amount). Given the unique posture of the case, she finds that while this amount is high, it does not preclude preliminary approval of the settlement. Further, the amount is well-below the Class Counsel's lodestar, which as of May 2022 was at least $6,089,850.75. Accordingly, the Plaintiff will submit a motion for attorneys' fees including declarations and detailed billing records so that the Court may determine an appropriate lodestar figure, and to allow the class members the opportunity to object to the requested fees. Finally, with respect to the costs, the Settlement Agreement provides that the Plaintiff's litigation expenses can also be recovered out of the $4.5 milllion allocated for attorneys' fees and that the costs of settlement administration will be deducted from the total Settlement Amount. The Plaintiff's counsel is instructed to submit an itemized summary of each category of costs with its motion for attorneys' fees so that the Court can determine whether such costs are reasonable expenses incurred for the benefit of the class. IV. Conclusion For the reasons she set forth, Judge Corley grants the Plaintiffs' motion for preliminary approval of the class action settlement as follows: 1. The Court modifies the class definition as follows: The Settlement Class includes (a) the 1,853 class members Trans Union identified in its pre-trial stipulation as individuals for whom Trans Union had delivered a credit report containing OFAC data to a third-party, and (b) any class members from the remaining group of 6,332 individuals not identified in the stipulation who submit a claim demonstrating publication of OFAC data to a third-party during the class period. 2. The Court appoints Continental DataLogix, LLC as the Settlement Administrator for providing Class Notice and otherwise assisting in administration of the Settlement. 3. Within 5 days of the Order, Trans Union will provide the Settlement Administrator with updated mailing address information for class members. 4. Within 15 days of the date of the Order, Trans Union will transfer $30,000 to the Settlement Administrator to establish the Settlement Fund. 5. Within 30 days of the date of the Order, the Settlement Administrator will provide notice to the class in accordance with the Notice Plan. 6. Within 30 days of the mailing of Notice, the Settlement Administrator will file a declaration attaching a copy of the notices ultimately sent to the class and describing the notice process. 7. The Class Counsel will file a motion for attorneys' fees and costs by Oct. 20, 2022. 8. The deadline for class members to object to the Settlement Agreement and/or the Class Counsel's motion for attorneys' fees and costs is Nov. 18, 2022. 9. The Plaintiff will file his Motion for Final Approval by Dec. 1, 2022. The motion will include the information suggested by the Northern District of California Procedural Guidance for Class Action Settlements. 10. The parties will appear before the Court for a final approval hearing on Dec. 15, 2022 at 9:00 a.m. in Courtroom 8, 450 Golden Gate Ave., San Francisco, California. The Order disposes of Docket No. 404. A full-text copy of the Court's July 19, 2022 Order is available at https://tinyurl.com/yynmtz8z from Leagle.com. TREK RETAIL: Joint Stipulation to Continue Discovery Resubmitted ---------------------------------------------------------------- In the class action lawsuit captioned as SCOTT GREEN, individually and on behalf of himself and all others similarly situated, v. TREK RETAIL CORPORATION, a Wisconsin Corporation; and DOES 1-50, inclusive, Case No. 4:21-cv-07004-HSG (N.D. Cal.), the Parties resubmit a revised Joint Stipulation to Continue Discovery and Class Certification -- Related Dates. a. Fact discovery cut-off for certification-related issues will be continued to March 31, 2023 (currently set for October 14, 2022). b. Expert Disclosure cut-off for certification related issues will be continued to April 10, 2023 (currently set for October 21, 2022). c. Last day for Rebuttal Disclosures for certification will be continued to April 24, 2023 (currently set for November 4, 2022). d. The Plaintiff's motion for class certification will be filed by May 15, 2023 (currently set for November 14, 2022). e. The Defendant's Opposition due by June 14, 2023 (currently set for December 5, 2022). f. The Plaintiff's Reply due by June 28, 2023 (currently set for December 19, 2022). g. Hearing on Motion for Class Certification on or about July 13, 2023 (currently set for January 12, 2023 at 2:00 p.m.) or a date and time thereafter that is convenient for the Court. A copy of the Parties' motion dated July 13, 2022 is available from PacerMonitor.com at https://bit.ly/3z666pd at no extra charge.[CC] The Plaintiff is represented by: 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: james@Jameshawkinsaplc.com christina@Jameshawkinsaplc.com The Defendant is represented by: Jennifer N. Lutz, Esq. Rio F. Schwarting, Esq. PETTIT KOHN INGRASSIA LUTZ & DOLIN PC 11622 El Camino Real, Suite 300 San Diego, CA 92130 Telephone: (858) 755-8500 Facsimile: (858) 755-8504 E-mail: jlutz@pettitkohn.com rschwarting@pettitkohn.com UNITED STATES: Court Denies Cross-Bid for Judgment in Lohmann Suit ------------------------------------------------------------------ In the case, PAUL LOHMANN, et al., Plaintiffs v. THE UNITED STATES, Defendant, Case No. 19-cv-994C (Fed. Cl.), Judge Kathryn C. Davis of the U.S. Court of Federal Claims issued an Opinion and Order: a. granting in part the Plaintiffs' Motion for Judgment; b. denying the Government's Cross-Motion for Judgment. I. Introduction The Plaintiffs are nine reserve component ("RC") soldiers of the United States Army, who challenge decisions of the Army Board for Correction of Military Records ("ABCMR" or "Board") denying them per diem payments for fiscal year ("FY") 2015. The Plaintiffs contend they are entitled to these payments pursuant to 37 U.S.C. Section 474 and the applicable Joint Travel Regulations because they served on temporary duty at Fort Hood, Texas, in FY 2015 under temporary change of station orders authorizing per diem. They claim the ABCMR's denials were arbitrary and capricious because the Board ignored evidence demonstrating that Plaintiffs had the requisite one-day break in service before starting their temporary duty tours and mischaracterized the amendments of Plaintiffs' FY 2015 orders as improper attempts to create a "false break in service." The matter is before the Court on the parties' Cross-Motions for Judgment on the Administrative Record. Judge Davis finds that the ABCMR's decisions were arbitrary and capricious, as well as unsupported by substantial evidence. She further finds that a remand is appropriate for the Board to address the deficiencies in the decisions. II. Background The Secretary of Defense may order RC soldiers to active duty under permanent change of station ("PCS") or temporary change of station ("TCS") orders. Pursuant to the Department of Defense's ("DoD") travel regulations, RC soldiers are entitled to various travel and transportation allowances when serving under these orders, depending on which type of order they receive. The JTR authorized the Secretary of the Army to provide per diem to certain service members, including RC soldiers, assigned on temporary duty ("TDY") to support a contingency operation. Orders that direct service members to a TDY location are referred to as TCS orders -- in contrast with PCS orders. Service members who were given TCS orders assigning them TDY to a contingency operation for more than 180 consecutive days at one location were entitled to a per diem rate of 55 percent of the locality per diem rate. Under the JTR, a TDY location can be changed to a Permanent Duty Station ("PDS"); however, a PDS cannot be changed to a TDY station once travel to the PDS is complete. The parties do not dispute that, to qualify for the contingency operation per diem under a TCS order, a service member must have a break in service of at least one calendar day between his or her PCS and TCS orders. Further, the JTR prohibits the revocation or modification of a travel order "retroactively to create, deny, or change an allowance except to correct/complete an order to show the original intent." The Plaintiffs are MSG David Carpenter, MAJ Joseph Fields, COL Paul Lohmann, SSG Miguel Lopez, MAJ (Ret.) Nancy Patrick, SSG Miles Samuel, SGM Lucio Valdez, SFC Thomas E. Vaughn, and LTC Mark Williford. The relevant facts of each Plaintiffs' claim are substantially the same. Each was serving on active duty at Fort Hood, Texas, from 2013 to 2014 under PCS orders issued pursuant to 10 U.S.C. Section 12301(d). These PCS orders directed Plaintiffs, upon the completion of duty, to return to their homes of record ("HOR") "and upon arrival be released from active duty." With a few exceptions, the Plaintiffs received an order dated Sept. 23, 2014, expressly releasing them from active duty effective Sept. 26, 2014 ("September 23 Orders"). The central facts at issue concern what occurred in relation to the Plaintiffs' next active duty assignment in FY 2015 -- specifically, whether the Army originally intended the Plaintiffs to have a break in service between their PCS and TCS orders. The relevant materials reviewed by the Board generally fell into three categories: (1) the Plaintiffs' TCS orders, (2) other military records, and (3) the Plaintiffs' account of their actions as set forth in legal briefs and the pleadings. After attempting for several years to press their claims for per diem reimbursement both within and outside the Army, the Plaintiffs filed the instant action on July 11, 2019, on behalf of themselves and a proposed class of similarly situated RC soldiers. The Plaintiffs' Complaint alleged that the Army's denial of per diem payments violated 37 U.S.C. Section 474(a)(4) and the JTR, and sought back pay for the per diem entitlements the Army allegedly owes. The Complaint asserted these claims with respect to the Army's denial of per diem related not only to the Plaintiffs' FY 2015 orders, but also their orders for FYs 2016 and 2017. On July 18, 2019, one week after initiating the suit, the Principal Deputy Assistant Secretary of the Army for Manpower and Reserve Affairs ("PDASA") sent a letter to the Plaintiffs' counsel responding to the counsel's March 2018 letter requesting per diem payments. After reviewing the materials submitted by the Plaintiffs, the PDASA determined that the Plaintiffs are not authorized per diem entitlements for their active duty period in FY 2015. However, because the Plaintiffs' TCS orders for FYs 2016 and 2017 did demonstrate the requisite break in service, the PDASA concluded the Plaintiffs are entitled per diem allowances for those periods. On March 9, 2020, the Government moved pursuant to Rule 52.2(a) of the Rules of the United States Court of Federal Claims ("RCFC") for an order remanding the matter to the Secretary of the Army with instructions to submit the Plaintiffs' claims to the ABCMR and staying further proceedings pending the remand decisions. Over Plaintiffs' objection, on March 26, 2020, the Court entered an order staying proceedings, including the Plaintiffs' then-pending motion for class certification, and remanding the case to the ABCMR. In November 2020, the ABCMR issued decisions in the Plaintiffs' remand proceedings. In each case, the Board agreed with the PDASA's determination that the Plaintiffs are not entitled to per diem payments for FY 2015 but are entitled to per diem payments for FYs 2016 and 2017. The ABCMR found "the start date of the orders for FY 2015 failed to create a break in service relative to the Plaintiffs' orders that covered FY 2014," and thus they did not meet the JTR's break-in-service requirement. It found that, "upon denial of the Plaintiffs' payments," the FY 2015 TCS orders "were retroactively amended to create a false break in service," which "was clearly undertaken to 'create a change in allowance.'" The Board described the retroactive amendment as "extraordinary" and found that it violated the JTR's prohibition on retroactive revocation and/or modification of orders. Accordingly, the Board recommended denial of the Plaintiffs' applications as to their FY 2015 claims and recommended correction of the Plaintiffs' military records to reflect their entitlement to per diem for FYs 2016 and 2017. Following the ABCMR's remand decisions, the Plaintiffs filed an Amended Motion for Class Certification and Appointment of Class Counsel, renewing their request that the Court certify the proposed class. After conducting a hearing, the Court denied the Plaintiffs' motion on June 29, 2021, holding that the Plaintiffs' FYs 2016 and 2017 claims (and any class action with respect to those claims) were moot and that their FY 2015 claims did not meet RCFC 23's requirements for class certification. Accordingly, the issues remaining in this case relate only to the FY 2015 per diem payments sought by individually named plaintiffs. Following the Court's decision, the Plaintiffs amended their Complaint. In their First Amended Complaint, the Plaintiffs dismissed the claims of Plaintiff LTC Joe Duckworth and added SGM Lucio Valdez as a plaintiff. On Sept. 16, 2021, the Plaintiffs moved for judgment on the Administrative Record. They argue that the Board's decisions were arbitrary and capricious because the Board disregarded the fact that Plaintiffs had an actual one-day break in service, as shown by the evidence before the Board, and failed to consider whether the TCS orders were amended to reflect the original intent (i.e., what actually occurred). The Government cross-moved for judgment on October 28, 2021, arguing that the Board's decisions were supported by substantial evidence and neither arbitrary nor capricious. The Court held oral argument on April 14, 2022. III. Discussion A. Jurisdiction The parties do not dispute the Court's jurisdiction over the Plaintiffs' claims. It is well established that the Military Pay Act is a money-mandating statute and that claims for back pay based on the Act are within the jurisdiction of the Court of Federal Claims. Indeed, like the Act's basic pay provision, 37 U.S.C. Section 204, the provision invoked by the Plaintiffs -- Section 474 -- entitles uniformed service members to certain travel and transportation allowances when away from home to perform duty for which they are entitled to pay under Title 37. The Plaintiffs' claims thus fall comfortably within the Court's Tucker Act jurisdiction. B. The ABCMR's Decisions Were Both Arbitrary and Capricious and Unsupported by Substantial Evidence There are two fatal deficiencies with the ABCMR's decisions. First, the Board failed to consider an important aspect of the Plaintiffs' claims -- i.e., whether their initial FY 2015 TCS orders were retroactively amended to reflect the original intent. And, even if the Court infers that the Board impliedly rejected the Plaintiffs' original intent argument, the Board failed to adequately articulate the basis of that conclusion. Second, the Board's "false break in service" finding was unsupported by substantial evidence in the factual record. Judge Davis holds that by not addressing the Plaintiffs' original intent argument or the evidence supporting their claims, the Board arbitrarily and capriciously ignored an important aspect of the issue before it and failed to adequately explain its decisions. And because the first basis of the Board's determination is not supported in the record and the second basis does not relate directly to the Plaintiffs or the pertinent issue in the case, the Board's "false break in service" finding is not supported by substantial evidence. In sum, the ABCMR's decisions cannot be sustained. The Board did not determine, consistent with JTR Section 4950.A.4, whether the Army's original intent was for Plaintiffs to return to Fort Hood on September 28, 2014, as the subsequent amendments to their TCS orders ultimately indicated. It thus failed to address an important aspect of the Plaintiffs' claim and to provide a reasoned explanation of its decision. Moreover, its determination that the Plaintiffs' amended orders provided a "false break in service" to support a per diem allowance was not supported by substantial evidence. Because the Board's decisions are inadequately explained and because the Board failed to make necessary factual findings on the issue of original intent, Judge Davis cannot say that the Plaintiffs are entitled to FY 2015 per diem payments as a matter of law on the basis of the record before her. Rather, a remand to the Board for it to issue new decisions is appropriate. IV. Conclusion For the reasons set forth, Judge Davis grants in part the Plaintiffs' motion, and denies the Government's motion. She remanded the matter to the ABCMR for a proper evaluation of the Plaintiffs' FY 2015 claim consistent with the Opinion. Pursuant to RCFC 52.2(b), Judge Davis provides the following directions to the parties on remand: 1. The ABCMR will: a. Directly address the Plaintiffs' original intent argument and make all necessary factual findings to support its conclusions, to include determining based on all the facts and circumstances: i. whether the Plaintiffs have demonstrated by a preponderance of evidence that the September 25 Orders contained an erroneous report date and/or report location; ii. whether the Plaintiffs have demonstrated by a preponderance of evidence that they returned or attempted to return to their homes upon receiving an order releasing them from active duty under their PCS orders and before reporting for active duty under their FY 2015 TCS orders; iii. whether the Plaintiffs have demonstrated by a preponderance of evidence that they were not in an active duty status on Sept. 27, 2014, as shown by, for example, their DD214s and LESs; iv. whether the Plaintiffs have demonstrated by a preponderance of evidence that their September 25 Orders were modified retroactively to correct/complete the orders to show the original intent; and v. any other facts necessary to support the Board's decisions; b. Determine based on a proper and complete evaluation of the record, consistent with the Opinion, whether the Plaintiffs are entitled to per diem payments relative to their FY 2015 TCS orders; and c. Ensure that its written decisions articulate the reasons for its judgment with sufficient detail. 2. The remand period will terminate in 90 days on Oct. 17, 2022. 3. Proceedings in the case will not be stayed pending the remand, and the Court intends to address the Plaintiffs' Motion for Reconsideration of Order Denying Class Certification (ECF No. 60) once it is fully briefed. 4. The Government will file a status report on Sept. 2, 2022, indicating the status of the matter on remand. 5. The Government will notify the Court and the Plaintiffs of the final decisions of the ABCMR within 14 days of the issuance of the decisions. 6. Within 30 days of the filing of the ABCMR's decisions, the parties will file the notices required by RCFC 52.2(e)(1). The Clerk's office will serve a copy of the Order on the ABCMR at: Army Board for Correction of Military Records 251 18th Street South Suite 385 Arlington, VA 22202-3531 A full-text copy of the Court's July 19, 2022 Opinion & Order is available at https://tinyurl.com/bddjue3h from Leagle.com. USA: Steele Can't Compel Answer to Third Set of Interrogatories --------------------------------------------------------------- In the case, ADAM STEELE, et al., Plaintiffs v. UNITED STATES OF AMERICA, Defendant, Case No. 1:14-cv-01523-RCL (D.D.C.), Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia issued a Memorandum Opinion denying: a. the Plaintiffs' motion to compel information withheld by the government under deliberative process privilege; and b. their motion to compel the government to fully answer their third set of interrogatories. I. Background The case involves a class action against the United States of America regarding purportedly excessive tax identification number ("PTIN") fees. The Plaintiffs -- a group of individuals who have paid these fees -- move the Court to compel the government to produce two sets of discovery materials: A set of over 1,300 documents withheld based on the deliberative process privilege, and more specific answers to certain interrogatories. Between 2000 and 2010, the Internal Revenue Service ("IRS") issued over one million voluntary PTINs to tax return preparers for free. These PTINs were unrequired and largely unregulated before 2010. In 2009, the IRS began regulating tax return preparers in earnest to solve the issue of "incompetent and unscrupulous preparers." This new program was funded by PTIN fees. The Plaintiffs in the case are a certified class of "individuals and entities who have paid an initial and/or renewal fee for a PTIN." In 2014, they filed a class action alleging that the Department of the Treasury and the IRS lacked statutory authority to charge a fee for PTIN issuance and renewal. They claimed that even if charging a fee is lawful, the amount charged is excessive. The Plaintiffs sought declaratory relief, injunctive relief, and restitution. They amended their complaint after it was consolidated with another related action. Both parties moved for partial summary judgment on the issue of whether the IRS had statutory authority to charge a fee for PTIN issuance and renewal. The Court ultimately determined that although the IRS could lawfully require the exclusive use of PTINs by tax preparers, they are not authorized to charge a fee for their issuance or renewal. Consequently, the Court issued a permanent injunction against the IRS, prohibiting them from charging PTIN fees, and ordered them to refund class members for PTIN fees already paid. On appeal, the D.C. Circuit in Montrois v. United States, 916 F.3d 1056, 1058 (D.C. Cir. 2019) held that the IRS was within its authority to charge the PTIN fees. Accordingly, the Circuit vacated and remanded the Court's judgment. The remaining issue before the Court is whether the amount charged for PTINs is excessive. The Plaintiffs have now filed two motions to compel discovery. The first is a motion to compel information that the IRS withheld under a claim of deliberative process privilege. They argue that the government has failed to meet the requirements for invoking the deliberative process privilege. The government responded, and the Plaintiffs replied. The second motion asks the Court to compel the government to fully respond to the Plaintiffs' third set of interrogatories pursuant to Fed. R. Civ. P. 37(a)(3)(B). The Plaintiffs argue that the government failed to sufficiently respond to their third set of interrogatories that were sent to the government via email. The government argues that (1) the third set of interrogatories are not relevant, and (2) the government has sufficiently responded to plaintiffs' interrogatories. The Plaintiffs replied. These motions are now ripe. II. Discussion A. Plaintiffs' First Motion To Compel The Plaintiffs first move to compel documents that the government withholds based on the deliberative process privilege. To begin, Judge Lamberth rejects the government's argument that materials the Plaintiffs seek are not relevant. The Plaintiffs seek documents related to the IRS' considerations in implementing the PTIN program, including discussions of charging potential fees from before the PTIN program was implemented. Judge Lamberth opines that the Plaintiffs' request for relief is far too broad and ill-defined: They fail to identify the entries where the government did not properly invoke its privilege and instead ask the Court to compel all documents withheld under the deliberate process privilege. Because it is unclear which documents the Plaintiffs even seek, he denies the Plaintiffs' first motion to compel. Next, the government withheld 1,362 documents on the basis of the deliberative process privilege, as identified in their privilege log. The Plaintiffs claim that the Defendants have not properly asserted the privilege for a single one of the documents. Judge Lamberth cannot agree. He finds that the Plaintiffs' compact motion shuns individual analysis of the documents in question, instead taking a blanket approach where one bad privilege log entry spoils the bunch. Furthermore, it is insincere of the Plaintiffs to argue that the government has failed to meet its burden in asserting the privilege for every privilege log entry, given the declaration by Deputy Associate Chief Counsel Richard Goldman that details why 26 of the log entries were withheld. And even a cursory review of the government's privilege logs illustrates that many entries are properly constructed and do support the government's claim of deliberative process privilege. Accordingly, the Plaintiffs' first motion to compel is denied. B. Plaintiffs' Second Motion The Plaintiffs next move the Court to compel the government to supply "complete" answers to the questions included in their third set of interrogatories. The interrogatories in question ask what percentage of "work time" certain employees spent dedicated to specific PTIN-related tasks. The government argues that the information is irrelevant and, more importantly, that the specific information does not exist—not all IRS employees keep contemporaneous time records. Judge Lamberth denies the Plaintiffs' second motion to compel. First, he has no doubt that the information the Plaintiffs seek meets the standard for relevance. The Plaintiffs request documents related to the time allocated by IRS employees on PTIN-related tasks. Because reasonableness in the case involves whether the fees unreasonably exceed the costs to the IRS for PTIN issuance and maintenance, the time allocated by IRS employees on PTIN-related tasks (and so the relevant portions of their salaries) absolutely bears on figuring out whether this cost to the IRS is exceeded by the PTIN fee. Second, although the information sought by the Plaintiffs is relevant, he denies the Plaintiffs' motion to compel the government to answer their third set of interrogatories because the government does not have the requested information. While the Plaintiffs assert that the government's responses to its third set of interrogatories are insufficient, the government is correct in their observation that the Plaintiffs are not looking for a response; they are looking for a different response. III. Conclusion For the foregoing reasons, Judge Lamberth denies the Plaintiffs' motion to compel information withheld by the government under deliberative process privilege and denies their motion to compel the government to fully answer their third set of interrogatories. A full-text copy of the Court's July 19, 2022 Memorandum Opinion is available at https://tinyurl.com/53jcpp7x from Leagle.com. VERIZON WIRELESS: Can Compel Arbitration in Brady Class Suit ------------------------------------------------------------ In the case, JOSHUA J. BRADY, Plaintiff v. VERIZON WIRELESS (VAW) LLC, Defendant, Case No. 22-cv-0187-bhl (E.D. Wis.), Judge Brett H. Ludwig of the U.S. District Court for the Eastern District of Wisconsin grants Verizon's motion to compel arbitration and for a stay of the case pending completion of the arbitration. I. Introduction On Jan. 19, 2022, Plaintiff Brady, representing himself, filed a putative class-action complaint in state court claiming that Defendant Verizon failed to open a fraud investigation or credit him for costs he incurred after he notified Verizon that an unauthorized device had been issued to his account. Verizon removed the case to federal court and filed an answer. It then moved to compel arbitration and for a stay of the case pending completion of the arbitration. Brady opposes the stay, insisting that Verizon waived its right to arbitrate and that the dispute falls outside the scope of the arbitration agreement. II. Background Mr. Brady alleges that on Jan. 31, 2019, at the same time his cell phone service was temporarily interrupted, his carrier, Verizon, issued an unknown party a cell phone under his account. He made a fraud claim with Verizon, which responded by restoring his service and telling him no charges would be added to his account. According to Brady, this proved false as overcharges nevertheless appeared on a later invoice. Id. Verizon credited him only part of the overcharge and refused to credit a $31.09 remainder. It also never opened a fraud investigation. Mr. Brady does not dispute that his relationship with Verizon is governed by written contractual documents. These documents show that Brady established his Verizon account on Dec. 2, 2013, purchased a mobile device in July 2017, and executed retail installment contracts in connection with purchases of other mobile devices. These contracts include language by which Brady assented to Verizon's Customer Agreement. The agreement contains an Arbitration Agreement. In February 2019, Brady converted his account to a business account, executing a Major Account Agreement that similarly states, "We both agree to arbitrate any dispute that arises under or relates to this Agreement." Mr. Brady filed his complaint in state court on Jan. 19, 2022. Verizon removed the action to federal court on February 14. After removal, Verizon repeatedly asserted its right to compel arbitration of the parties' dispute. In its February 22 answer and March 15 amended answer, Verizon pleaded as its first affirmative defense that it was "reserving the right to compel contractual arbitration." Similarly, in the parties' April 8 jointly filed Rule 26(f) report, Verizon included language concerning its arbitration rights. The report also stated, "Plaintiff opposes any Motion to Compel Arbitration as waived by the Plaintiff when removing this case from Milwaukee County Circuit Court to this court's jurisdiction." The report refers to Verizon's "impending" motion to compel throughout and includes Verizon's "assertions that all discovery should be stayed pending the ruling on the motion." At an April 15, 2022 scheduling conference, Verizon's counsel confirmed the Defendant still intended to file a motion to compel but had experienced delays in producing a declaration to support the motion. The Court ordered Verizon to file the motion by May 2, 2022. Verizon finally filed its motion to compel arbitration on April 29. The motion has been fully briefed since June 3. III. Analysis Mr. Brady does not dispute that the parties agreed to a valid arbitration agreement in Verizon's Customer Agreement and Major Account Agreement. Nor does he dispute the terms of the agreement. But he nevertheless opposes Verizon's motion, primarily on grounds that Verizon has waived or forfeited its right to arbitrate. He also argues his claims fall outside the scope of the agreement. Because both arguments fail, Verizon's motion will be granted. A. Verizon Has Not Waived Its Right to Arbitrate Mr. Brady argues Verizon has waived its right to arbitrate through the steps it has taken to litigate this case in federal court. He points out that Verizon filed a notice of removal, which he contends was an intentional waiver of its right to arbitrate and an election to proceed before a non-arbitral tribunal. Brady further contends that Verizon thereafter, over the course of three months, continued to act inconsistently with a right to arbitrate. It filed an answer, an amended answer, and a corporate disclosure; met and conferred with Brady; responded to an order to show cause; participated in creating a joint Rule 26(f) report; attended the telephonic scheduling conference; and served Brady with initial disclosures. Under the totality of the circumstances of the case, Brady argues, these actions constitute an implicit waiver of the right to arbitrate. Verizon disputes any waiver. It argues that even if its removal of the complaint to federal court could be construed as a presumptive waiver under Seventh Circuit caselaw, it rebutted that presumption by expressly reserving its right to arbitrate at every step in the litigation process thereafter -- in its answer, in its amended answer, in the joint Rule 26(f) report, and at the scheduling conference. Verizon points out it has not taken or participated in any deposition, propounded any discovery against any party, or brought any motions beyond this pending motion to compel arbitration filed a mere three months after removal. This, Verizon insists, is not the conduct of a party seeking to litigate rather than arbitrate. Judge Ludwig holds that the record does not show that Verizon intentionally relinquished or abandoned its right to arbitrate. The circumstances demonstrate quite clearly that Verizon did not intend to waive its arbitration rights and no reasonable person would have thought otherwise. At every other step in the litigation, Verizon has clearly stated its intent to arbitrate. And it filed its motion by the deadline set by the Court -- before making discovery requests or filing dispositive motions. Verizon's conduct stands in marked contrast to the conduct from which courts have inferred a waiver. B. Verizon Did Not Forfeit Its Right to Arbitrate by Answering the Complaint Rather Than Moving to Dismiss Mr. Brady also insists that Verizon forfeited its right to arbitrate by answering the complaint. A motion to compel arbitration, he argues, is effectively a motion for improper venue under Fed. R. Civ. P. 12(b)(3), and a defense of improper venue must be raised before pleading. This argument can be dismissed outright, Judge Ludwig holds. He explains, the Seventh Circuit has confirmed that "nothing prevents a defendant who is seeking to compel arbitration from filing an answer that demands arbitration and offers other reasons why plaintiffs should not receive judicial relief." C. Brady's Asserted Claims Fall Within the Broad Scope of the Arbitration Agreement Mr. Brady finally argues that his claims fall outside of the scope of the arbitration agreement because the overcharge made on his account was caused by some third person not a party to the contracts between Brady and Verizon. This too is a non-starter, Judge Ludwig holds. He explains, in Wisconsin, courts "give contract terms their plain or ordinary meaning." The arbitration agreement in the Major Account Agreement covers "any dispute that arises under or relates to the Major Account Agreement." A dispute about an alleged overcharge on an account governed by the Major Account Agreement is a dispute relating to the Major Account Agreement. Moreover, where it is clear that "the parties have a contract that provides for arbitration of some issues between them, any doubt concerning the scope of the arbitration clause is resolved in favor of arbitration as a matter of federal law." "Such a presumption is particularly applicable where the clause is broad." The Seventh Circuit "reads both 'arising out of' and 'relating to' language broadly," interpreting "arising out of" to "reach all disputes having their origin or genesis in the contract, whether or not they implicate interpretation or performance of the contract per se." IV. Conclusion For the reasons given, Judge Ludwig grants the motion to compel arbitration and stays case. The parties are ordered to arbitrate the dispute. All dates and deadlines are stayed. A full-text copy of the Court's July 19, 2022 Order is available at https://tinyurl.com/9urpvhz3 from Leagle.com. WEST CORPORATION: Settlement Class in Ramsey Initially Certified ---------------------------------------------------------------- In the class action lawsuit captioned as COURTLESS RAMPEY, et al., v. WEST CORPORATION, et al., Case No. 1:19-cv-00220-JB-B (S.D. Ala.), the Hon. Judge Jeffrey U. Beaverstock entered an order granting preliminary certification of Settlement Class: "All persons who participated in the West Corporation Employee 401(k) Retirement Plan at any time between May 7, 2013 through the date of this Order ("Class Period"), including any Beneficiary of a deceased person who participated in the Plan at any time during the Class Period, and/or Alternate Payee, in the case of a person subject to a Qualified Domestic Relations Order who participated in the Plan at any time during the Class Period, except for past and present members of the Retirement Plan Committee of the West Corporation Employee 401(k) Retirement Plan." The Court also appoints Jordan Lewis of Jordan Lewis, P.A., Charles Crueger of Crueger Dickinson LLC, Arthur Stock of Milberg Coleman Bryson Phillips Grossman, PLLC, Mark J. Tamblyn of Wexler Boley & Elgersma LLP, and Charles J. Potts of Briskman & Binion, P.C. as counsel for the Settlement Class. Further, the Court appoints Courtless Rampey and Bridget Cunningham as Class Representatives for the Settlement Class. This litigation arose out of claims of alleged breaches of fiduciary duty in violation of the Employee Retirement Income Security Act of 1974 ("ERISA") with respect to the West Corporation Employee 401(k) Retirement Plan (the "Plan"). West Corporation is a leading provider of technology-driven, voice-oriented solutions. A copy of the Court's order dated July 13, 2022 is available from PacerMonitor.com at https://bit.ly/3zud74w at no extra charge.[CC] WEST VIRGINIA UNIVERSITY: Faces Ware Labor Suit Over Kronos Hack ---------------------------------------------------------------- Tammy Ware et al., individually and on behalf of all others similarly situated, Plaintiff v. West Virginia University Medical Corporation, Defendant, Case No. 1:22-cv-00054-TSK (N.D.W. Va., July 11, 2022) seeks to recover compensation, liquidated damages, and attorneys' fees and costs pursuant to the provisions of the Fair Labor Standards Act and the West Virginia Wage Payment and Collection Act. According to the complaint, WVU Medical's timekeeping and payroll systems were affected by the Kronos ransomware hack occurring in December of 2021. The hack led to problems in timekeeping and payroll throughout WVU Medical's organization. Specifically, WVU Medical was unable to track its employees' hours through the Kronos system for purposes of calculating pay, overtime, and the proper overtime rate, says the suit. As a result, WVU Medical's hourly employees were not paid for all hours worked, and/or were not paid the proper overtime premium after the onset of the Kronos hack. Additionally, although WVU Medical eventually paid its employees after it reviewed the hours they manually entered, this delay resulted in late and/or insufficient payment of wages owed in violation of the FLSA and West Virginia's Wage Payment and Collection Act, the suit adds. Plaintiff Ware was employed as an Administrative Assistant/Behavioral Health Technician in Weston, West Virginia at WVU Medical's United Summit Center facility from October of 2010 to March 1, 2022. West Virginia University Medical Corporation provides medical and surgical hospital services.[BN] The Plaintiff is represented by: Clif Alexander, Esq. Austin W. Anderson, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com - and - Kirk Auvil, Esq. Walt Auvil, Esq. THE EMPLOYMENT LAW CENTER PLLC 1208 Market St. Parkersburg, WV 26101 Telephone: (304) 485-3058 Facsimile: (304) 485-6344 WHOLE FOODS: Revised Case Scheduling Order Entered in Kellman ------------------------------------------------------------- In the class action lawsuit captioned as SHOSHA KELLMAN, on behalf of herself and all others similarly situated, v. WHOLE FOODS MARKET, INC., WHOLE FOODS MARKET CALIFORNIA, INC., WHOLE FOODS MARKET SERVICES, INC., and WHOLE FOODS MARKET DISTRIBUTION, INC., Case No. 3:17-cv-06584-LB (N.D. Cal.), the Hon. Judge Laurel Beeler entered an order granting the parties' proposes revised case schedule as: -- Completion of depositions of September 15, 2022 previously noticed witnesses: -- Class Certification opening October 17, 2022 expert reports: -- Class Certification rebuttal November 17, 2022 expert reports: -- Class Certification expert December 9, 2022 depositions: -- Motions for class December 15, 2022 certification: -- Oppositions to motions for January 27, 2023 class certification: -- Replies to motions for February 24, 2023 class certification: -- Hearing date for motions March 9, 2023 for class certification: -- Further case-management April 27, 2023 conference: -- Last hearing date for June 22, 2023 dispositive motions and/or further case-management conference: Whole Foods is an American multinational supermarket chain headquartered in Austin, Texas, which sells products free from hydrogenated fats and artificial colors, flavors, and preservatives. A copy of the Court's order dated July 13, 2022 is available from PacerMonitor.com at https://bit.ly/3Bm1nSO at no extra charge.[CC] XEROX CORP: Filing of Class Status Bid Extended to Nov. 28 ---------------------------------------------------------- In the class action lawsuit captioned as Carrigan, et al., v. Xerox Corp., et al., Case No. 3:21-cv-01085 (D. Conn.), the Hon. Judge Sarala V. Nagala entered an order that the deadline for the Plaintiffs to move for class certification is extended to November 28, 2022. Finally, the parties shall file a joint status report by October 18, 2022, indicating whether the private mediation resulted in a settlement. Xerox is an American corporation that sells print and digital document products and services in more than 160 countries. The nature of suit Employee Retirement Income Security Act.[CC] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2022. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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