/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220830.mbx C L A S S A C T I O N R E P O R T E R Tuesday, August 30, 2022, Vol. 24, No. 167 Headlines 106-108 CONVENT: Court Certifies Class of Tenants in Maddicks Suit 1GLOBE CAPITAL: Gestion Sues Over Control of Sinovac Shares 260 PARTNERS LP: Najera-Ordonez's Bid for Summary Judgment Granted 3M COMPANY: Graff Sues Over Exposure to Highly Toxic Chemicals 3M COMPANY: Happel Sues Over Exposure to Toxic Film-Forming Foams 3M COMPANY: Torres-Irizarry Sues Over Exposure to Toxic Chemicals 4 WHEEL PARTS: Fails to Pay Proper Wages, Estrada Alleges A CAB LLC: Court Affirms Class Settlement Approval in Dubric Suit AANIIIH NAKODA: Weidley Suit Removed to N.D. Alabama AARON CHRYSLER: Trovato Suit Removed to C.D. California AARON EQUIPMENT: Serrano Sues Over Illegal Collection of Biometrics ABBOTT LABORATORIES: Dodson Files Suit in S.D. Illinois ADAM J. RUBINSTEIN: Rivera Sues Over Unsolicited Text Messaging ADVANCED PHARMACY: Sandusky Files Placeholder Bid for Class Status AFLAC INCORPORATED: Valenzuela Sues Over Illegal Wiretapping AFNI INC: Powell Files Suit in C.D. Illinois ALLSTATE FIRE: Seeks Oral Argument in Keister Class Status Bid ALLSTATE PROPERTY: Limited Scheduling Order Entered in Cummings AMAZON.COM INC: Herbs and Spices Contain Heavy Metals, Pettis Says AMERICAN BEHAVIORAL: Lomedico Files Suit in S.D. New York AMERICAN HONDA: Class Cert Hearing Continued Until March 2, 2023 AMERICAN NATIONAL: Griggs Alleges Illegal Overdraft Fee Collection ANTHEM GLENVIEW: Misclassifies Dining Services Directors, Suit Says ASSURANCE IQ: Court Extends Deadline to File Class Cert Bid AYA HEALTHCARE: Faces O'Dell Suit Over "Bait-And-Switch" Practices BANK OF AMERICA: District of Maryland Tosses Mohamed's EFTA Claim BLANTON & SONS: Russo Seeks Unpaid Overtime Under FLSA BLENDTEC INC: Isaac Sues Over Blenders' Blade Assembly Defect BOB'S DISCOUNT: Court Dismisses Without Prejudice Glover's Claims BP EXPLORATION: Bids to Reschedule in Anderson, Related Suits Nixed BP EXPLORATION: Court Grants Summary Judgment in Pettaway Suit BWC HARVEY LLC: Terrell Suit Removed to E.D. Louisiana C.O.C. BAKERY: Fails to Pay Cashiers' Proper Wages, Garcia Claims CALIFORNIA STATE: Anders' Bid for Class Cert. Denied W/o Prejudice CANE BAY: Faces Lindenberger Class Suit Over Tribal Lending Schemes CAPIO PARTNERS: Vazquez Suit Removed to M.D. Florida CAPITAL PROJECTS: Has Made Unsolicited Calls, Charman Suit Claims CASEY'S GENERAL: Lewis Seeks Unpaid Overtime Pay Under FLSA CEDAR FAIR: Mahoney Sues Over Blind-Inaccessible Website CELLCO PARTNERSHIP: Corsi Files Suit in D. New Jersey CEREBRAL MEDICAL: Crossley Sues Over Unpaid Compensation CHEMTOOL INC: Court Denies Bids to Remand Mackey & Henderson Suits CHICAGO HOUSING AUTHORITY: Oliver Files Suit in N.D. Illinois CHILDREN'S HOME: Gonzalez Files Suit in Cal. Super. Ct. CLEAN HARBORS: Bush Suit Removed to W.D. Louisiana COINBASE GLOBAL: Faces Patel Securities Suit Over Common Stock Drop COMSTAR LLC: Basinas Files Suit in D. Massachusetts CONTRACT LAND: Weinmann Suit Seeks Unpaid OT Wages Under FLSA DALLAS JONES: Court Denies Bids to Dismiss 3rd Amended McClurg Suit DALTON POWER: Scheduling Order Entered in Bird Class Action DIRECT ENERGY: Isabella Geriatric Files Suit in S.D. New York EDUCATIONAL CREDIT: July 18 Amended Pretrial Sched Order Modified EMPRESAS BERRIOS: Court Grants Trinidad Leave to Amend Complaint EPIC SPORTS: Faces Montero Suit over Telephonic Sales Calls FFE TRANSPORTATION: Cronon Files Suit in Cal. Super. Ct. FOOD PYRAMID: Fails to Pay Proper Wages, Vera Suit Alleges FORD MOTOR: Pacheco Sues Over Sale of Defective Motor Engines FRANK'S PAINTING: Lopez Seeks Unpaid Overtime Under FLSA, NYLL FRANKLIN WIRELESS: Reschedule of Class Cert. Hearing Sought FRONTWAVE CREDIT: Ward-Howie Wins Bid to Remand Suit to State Court FULL SPECTRUM: Parties File Conditional Class Certification Bid GINNY'S INC: Bids for Summary Judgment, Class Status Due Dec. 15 GMRI INC: Rafferty Files Suit Over Failure to Pay Minimum Wages GQ SOLUTIONS: Ulery Seeks Leave to Conduct Class Certification HARTFORD FUNDING: Johnson Files TCPA Suit in E.D. New York HERE WE COME: Souza Seeks Overtime Pay Under FLSA, NYLL HONEYWELL INTERNATIONAL: Alencaster Suit Removed to C.D. California HSBC BANK: Palmer's Bid to Compel Further Written Discovery Denied IEC CORP: Court Refuses to Revisit Arbitration Order in Britt Suit IGNITE TEAM: Fails to Pay Proper Wages, Parker Suit Alleges ILLUMINATE EDUCATION: Cranor Files Suit in C.D. California IMPERIAL MOBILE: Ochoa Seeks OT Premium Pay Under NYLL, FLSA INFUCARE RX: Sharfman Files Bid for Class Certification INSIDER INC: Discloses Digital Users' Personal Info, Roby Says INTERSYSTEMS CORP: Fails to Properly Pay Manual Workers, Suit Says J.C. TOYS GROUP: Young Files ADA Suit in S.D. New York J.G. WENTWORTH COMPANY: Simpson Sues Over Pre-Recorded Calls JACKSON, MI: 903 West Class Cert. Bid Tossed w/o Prejudice JCCA: Krasnansky Seeks to Recover Unpaid Wages Under FLSA, NYLL KASHI SALES: Karney Files Suit in S.D. Florida KEVIN STATEN: Celluci Files Suit in S.D. Florida KIA AMERICA INC: Simmons Sues Over Undisclosed Vehicle Defect KINDER MORGAN: Wins Bid for Judgment on Pleadings in Pedersen Suit KING DR. HALAL: Neal Sues Over Unpaid Regular and Overtime Wages LENDINGPOINT LLC: Lynch Sues Over Unsolicited Text Messaging LIBERTY HEALTHCARE: Fails to Pay Overtime Pay, Adams Alleges LOANDEPOT.COM LLC: Smaling Suit Removed to S.D. Florida LUVATA APPLETON: Fails to Pay Proper Wages, Newman Suit Alleges LUXOTTICA OF AMERICA: Gabourel Must File Class Cert Bid by Nov. 18 M.A.G. ENTERPRISES: Wu Sues Over Unpaid Wages, Illegal Kickbacks MANKIN LAW: Denning Seeks to Certify FDCPA and State Law Class MARATHON OIL: Fails to Pay Inspectors' OT Wages, Walker Suit Says MAXIM HEALTHCARE: Miller Sues to Recover Pay Losses MDL 2824: Court Nixes Expert Testimony on Total Amount of Damages METRO AIR SERVICE: Gomez Suit Removed to C.D. California MICHIGAN AVENUE IMMEDIATE: Cornell Files Suit in N.D. Illinois MIDDLESEX SAVINGS BANK: O'Neil Sues Over Improper Fee Charges MINNEAPOLIS, MN: Goyette, et al., File Bid for Class Certification MP MANAGEMENT: Link Seeks Minimum & OT Wages for Delivery Drivers MURAD LLC: Faces Seger Suit Over Unsolicited Text Ads MURPHY WELL: Fails to Pay Flowback Operators' OT, Escalera Claims MYLIFE.COM INC: Stipulation to Stay Pending Mediation Nixed NEW PRIME: Parties Must Show Cause Why Class Cert Should Be Sealed NEW YORK, NY: Perez-Pedemonti Files Suit in S.D. New York NORTHSHORE UNIVERSITY: Ill. App. Affirms Dismissal of Kioutas Suit OAK VIEW GROUP: Bour Sues Over Unpaid Compensations OMEGA PROJECT: Fails to Pay Workers' OT Under FLSA, Vinson Says ONE SOURCE TECHNOLOGY: Savedra FCRA Suit Removed to N.D. California OUR DREAM: Fails to Pay Delivery Drivers' Adequate Wages, Suit Says PENNSYLVANIA: Court Awards Wallace $100-Mil. in Punitive Damages PEOPLECONNECT INC: Abraham, et al., Seek to Certify Class POPPIN CAR: Olvera Sues Over Workers' Unpaid Overtime Wages PORTFOLIO RECOVERY: Suxstorf Suit Moved to Milwaukee Circuit Court PRAIRIE VILLAGE: Church Mutual Wins Bid for Judgment on Pleadings PREMIER NUTRITION: Court to Award Montera & Class $8.3MM in Damages PRIMAL FLOWBACK: Misclassifies Flowback Operators, Sylvester Says PROGRESSIVE DIRECT: Alleges Improper Insurance Business Practices PROMISES BEHAVIORAL: Cody Alleges Wiretapping of Website Visitors PRUSSIAN INC: Wang Seeks Minimum & OT Wages Under FLSA, NYLL PUBLIX SUPERMARKETS: M.D. Florida Dismisses Amara Consumer Suit QUEST DIAGNOSTICS: Perlin Sues Over Illegal Medical Debt Collection QUONTIC BANK: Scheduling Order Entered in Sapan Class Action RAINBOW REALTY: Wins Cross-Motion for Summary Judgment in FHC Suit RAVALLI COUNTY, MT: Oral Argument on Pending Bids Set for Sept. 7 RECKITT BENCKISER: Digiacinto Sues Over Mislabeled Cough Products RECREONICS INC: Court Enters Consent Decree in Feliz Class Suit ROEHL TRANSPORT: Seeks Unpaid Wages for Truck Drivers Under FLSA ROUNDY'S ILLINOIS: Prgam Seeks Overtime Pay Under FLSA, NYLL ROUNDY'S ILLINOIS: Qazi Seeks Unpaid OT Wages Under FLSA, IMWL ROUNDY'S ILLINOIS: Underpays Store Managers, Larson Class Suit Says ROUNDY'S ILLINOIS: Weaver Seeks Overtime Pay Under FLSA, IMWL RUEY CHAI CORP: Fails to Pay Proper Wages, Olivar Suit Alleges SEA THAI HOSPITALITY: Fails to Pay Proper Wages, Banjong Alleges SEDGWICK CLAIMS: Gibbs Seeks to Certify FLSA Collective Action SERVE U BRANDS: Underpays General Workers, Gillis Suit Claims SILVER HEART: Faces Baxter Suit Over Failure to Pay Overtime Wages SOUTH DAKOTA: Scheduling Order Entered in Irvine Class Suit SPEEDWAY MOTORS: Walli Sues Over Unsolicited Text Messages STRATEGIC DELIVERY: Court Certifies FLSA Class in Zambrano Suit TELADOC HEALTH: Faces Schutter Class Suit Over Stock Price Drop TEXAS: 5th Circuit Affirms Dismissal of Angton v. Collier & TDCJ TRACY, CA: Vargas Files Suit in Cal. Super. Ct. TROY LAND: Rivas Seeks Unpaid Wages for OT Work Under FLSA, NYLL TRUMP FERRY: Faces Rodriguez Wage-and-Hour Suit in S.D.N.Y. UBER TECHNOLOGIES: Faces Cao Suit Over Drop in Share Price UNITED STATES: Hospital Wins Summary Judgment Bid on Fees & Costs UNITED STATES: Suit Seeks to Certify Health-Care Providers Class VALVE CORP: Interim Co-Lead Class Counsel Named in Antitrust Suit WALBRIDGE ALDINGER: Rice Seeks Unpaid Overtime Wages Under FLSA WESTERN WASHINGTON: Breaches Fiduciary Duties, Johnson Suit Says WHITING-TURNER/KOKOSING: Class Cert. Denial in Vance Suit Affirmed ********* 106-108 CONVENT: Court Certifies Class of Tenants in Maddicks Suit ------------------------------------------------------------------ In the case, THERESA MADDICKS, JOHN AMBROSIO, PAUL WILDER, SAMUEL WILDER, ALYSSA O'CONNELL, JOHANNA KARLIN, BRIAN WAGNER, TYLER STRICKLAND, DANIEL ROBLES, ELENA RICARDO, LIAM CUDMORE, JENNIFER MAK, JOSHUA BERG, ANISH JAIN, JOHN CURTIN, JONATHAN FIEWEGER, MARIA FUNCHEON, JORDANI SANCHEZ, MELLISA MICKENS, M.D. IVEY, DEVIN ELTING, SEMI PAK, KAITLIN CAMPBELL, SARAH NORRIS, MIKIALA JAMISON, SHERESA JENKINSRISTEKI, YANIRA GOMEZ, KRISTEN PIRO, Plaintiffs v. 106-108 CONVENT BCR, LLC, 110 CONVENT BCR, LLC, 408-412 PINEAPPLE, LLC, 510-512 PINEAPPLE, LLC, 535-539 WEST 155 BCR, LLC, 3750 BROADWAY BCR, LLC, 3660 BROADWAY BCR, LLC, 605 WEST 151 BCR, LLC, 545 EDGECOMBE BCR, LLC, Defendants, Docket No. Index No. 656345/2016 (N.Y. Sup.), Judge Sabrina Kraus of the New York Supreme Court, New York County, grants the Plaintiffs' motion for class certification. The Plaintiffs brought the lawsuit, on their own behalf and on behalf of a putative class of tenants to end the alleged illegal and fraudulent practices employed by the Defendants with respect to evasion of rent regulation as against tenants in the subject buildings. The Defendants are all single purpose entities (SPEs) that own and operate the following New York City buildings: 106 Convent Avenue; 110 Convent Avenue; 408 West 129th Street; 412 West 129th Street; 510 West 134th Street; 512 West 134th Street; 535 West 155th Street; 3750 Broadway; 555 West 151st Street (a/k/a 3660 Broadway); 605 West 151st Street; and 545 Edgecombe Avenue. These buildings are collectively referred to herein as the "Big City Portfolio." Each of the SPEs is owned by a single purpose LLC whose sole member is either Big City Realty, LLC, or Magnolia Holdings, LLC. Both Big City Realty and Magnolia Holdings have, at times, had identical managers and corporate addresses, and Chaim Katzman is listed as a member of both entities. Each property in the Big City Portfolio is managed by a management entity under the control of Kobi Zamir. The Plaintiffs allege the Defendants improperly used preferential rents as to three tenants: Theresa Maddicks in Apartment 14 at 106 Convent Avenue; John Ambrosio in Apartment 17 at 106 Convent Avenue; and Johanna S. Karlin lives in Apartment 4 at 408 W. 129th Street. The remaining Plaintiffs allege claims based on improper Individual Apartment Improvements (IAIs), failures to register or a combination of both: Paul and Samuel Wilder reside in Apartment 1 at 110 Convent Avenue; Alyssa O'Connell resided in Apartment 11 at 110 Convent Avenue; Brian Wagner lives in Apartment 14 at 408 W. 129th Street; Tyler Strickland and Daniel Robles lived in Apartment 15 at 408 W. 129th Street; Elena Ricardo lived in Apartment 20 at 408 W. 129th Street; Jennifer Mak lives in Apartment 4 at 412 W. 129th Street; Joshua Berg lives in Apartment 6 at 412 W. 129th Street; Anish Jain and John Curtin lived in Apartment 11 at 412 W. 129th Street; Jonathan Fieweger lives in Apartment 20 at 412 W. 129th Street; Jordani Sanchez lives in Apartment 25 at 412 W. 129th Street; Melissa Mickens lived in Apartment 33 at 510 W. 134th Street; M.D. Ivey lived in Apartment 53 at 510 W. 134th Street; and Devin Elting lives in Apartment 33 at 512 W. 134th Street. The Plaintiffs further allege that the Defendants appear to have created an illusory tenancy. Semi Pak lived in Apartment 42 at 512 W. 134th Street; Kaitlin Campbell lives in Apartment 41 at 535 W. 155th Street; Sarah Norris lives in Apartment 63 at 3750 Broadway; Mikiala Jamison lives in Apartment 3 at 555 W. 151St Street; Sheresa Jenkins-Risteki lived in Apartment 31 at 555 W. 151st Street; Yanira Gomez lives in Apartment 24 at 605 W. 151th Street; and Kristin Piro lives in Apartment 3A at 545 Edgecombe Avenue. On Nov. 16, 2017, the Supreme Court granted the Defendants' motion to dismiss pursuant to CPLR Section 3211 [2017 NY Slip Op 32385(U)]. On July 26, 2018, the Appellate Division modified holding the trial court's motion to dismiss was premature. On Nov. 18, 2019, the New York Court of Appeals affirmed the Appellate Division's ruling and remitted the matter to the Supreme Court. On May 14, 2021, the Plaintiffs moved for an order certifying a CPLR 906(1) class. The motion was fully submitted on June 22, 2021. Subsequently, the action was reassigned to the Supreme Court. On June 8, 2022, the motion was marked submitted and decision was reserved. The Plaintiffs seek class certification under CPLR Section 906(1) which provides that "an action may be brought or maintained as a class action with respect to particular issues." CPLR Section 906(1) is identical to FRCP 23(c)(4)(a). The Plaintiffs must demonstrate numerosity, typicality, adequacy, and superiority, under CPLR 901(a). Then, with respect to CPLR 906, they must identify a common issue, or issues, for certification on a class-wide basis, rendering remaining issues to be decided on an individual-by-individual basis. Judge Kraus finds that (i) there are 329 apartments at issue, so the Plaintiffs have established numerosity and this is not challenged by the Defendants; (ii) the proposed Lead Plaintiffs each allege they were harmed by the same "methodical attempt to illegally inflate rents," that harmed the proposed class, so typicality has been established; (iii) the proposed class representatives have no known conflicts of interest with the other class members; (iv) the law firm of Newman Ferrara LLP is competent, and the firm's attorneys have sufficient experience in both class action and landlord-tenant litigation; and (v) a class action is the superior method of adjudication of the matter. The Plaintiffs allege that the Defendants have engaged in a scheme designed to evade New York's rent-regulations, and that this scheme takes three forms: (a) failure to register apartments, in some instances, for a decade or more; (b) utilizing illegal first market rents on decontrolled apartments; and (c) taking credit for unperformed, or underperformed, IAI increases to justify increasing the legal regulated rent and/or deregulating units. Judge Kraus finds that CPLR 906 certification is appropriate on the issue of whether the Defendants engaged in a common scheme to evade rent regulation by: failing to register apartments; (b) utilizing illegal first market rents on decontrolled apartments; and (c) taking credit for unperformed, or underperformed, IAI increases to justify increasing the legal regulated rent and/or deregulating units. In addition to the factors set forth in CPLR Section 901, courts also consider the following factors in determining whether class certification is appropriate: the interest of the class members in individually controlling the prosecution or defense of the separate actions; the impracticability or inefficiency of prosecuting or defending separate actions; the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; the desirability or undesirability of concentrating the litigation of the claim in any particular forum; and the difficulties likely to be encountered in the management of a class action. Judge Kraus holds that the first two factors, the putative class members' interest in maintaining separate actions, and the feasibility thereof, demonstrate class certification is appropriate. Tenants with substantial claims retain the right to opt out, but may prefer not to have to retain, and pay, their own attorneys to litigate. The third and fourth factors listed in CPLR Section 902 are also met. No other pending litigation involving this controversy exists, other than the eviction proceeding. Finally, the types of computations required to ascertain damages are akin to analysis of claims in performing due diligence as part of the purchase of a portfolio of buildings in New York City. Having a special master, as the Plaintiffs suggested, and was employed in the Charron litigation, is a viable option to address this issue. Judge Kraus also holds that the Plaintiffs' proposed notice provides a clear, concise and balanced description of the claims in the case and the class members' rights and options. In order to identify class members and disseminate the Notice, they request that the Court compels the Defendants to promptly produce the names of Class members. For existing residents of the Building, a current rent roll is sought, to allow Plaintiffs to disseminate notice through a mailing. For former Building residents, the Plaintiffs seek full and complete names, and the last known work and home addresses of those Class members. There is sufficient precedent to grant these requests and the Court directs the Defendants to provide the requested discovery. Finally, in their moving papers, the Plaintiffs assert they will in the future move for the appointment of a Special Master or Referee pursuant to CPLR Sections 4201 and 4311. In their reply papers they imply that the Court should grant this relief on the pending motion. Judge Kraus declines to grant said relief at this juncture, as it was not sought in the moving papers and she deems it to be premature at this stage of the litigation. In light of the foregoing, Judge Kraus grants the motion for class certification. The issue certified is whether the Defendants engaged in a fraudulent scheme to evade rent regulation by: Failing to register apartments; utilizing illegal first market rents on decontrolled apartments; and taking credit for unperformed, or underperformed, IAI increases to justify increasing the legal regulated rent and/or deregulating units; and it is further The class will consist of all persons who were tenants in the buildings owned and operated by Defendants 106-108 Convent BCR, LLC, 110 Convent BCR, LLC, 408-412 Pineapple, LLC, 510-512 Pineapple, LLC, 535-339 West 155 BCR, LLC, 3750 Broadway BCR, LLC, 3660 Broadway BCR, LLC, 605 West 151 BCR, LLC, and 545 Edgecombe BCR, LLC between Dec. 6, 2012 and the present. The Sub-Class will consist of all current tenants of the Big City Portfolio who reside in rent-stabilized or de-regulated apartments. Kristin Piro, Elena Ricardo, and Theresa Maddicks are the lead plaintiffs and class representatives. Newman Ferrara LLP is appointed as class counsel. Within 30 days of this order, the Defendants will provide the Plaintiffs with copies of the rent rolls for the years in question, the rent roll for the current year, and a list of the names, phone numbers, email addresses, and last known work and home addresses of those class members who no longer reside in the Subject Buildings. Within 20 days of their receipt of this discovery, the Plaintiffs will serve notice of the class action in the form submitted as Exhibit 109 to the Sachar Affirmation, by first class mail to their current or last known addresses as well as by email, where this information is available. Within 20 days from entry of the Order, the Plaintiffs will serve a copy of the Order with notice of entry on the Defendants and the Clerk of the General Clerk's Office (60 Centre Street, Room 119). Such service upon the Clerk will be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the Court's website at the address www.nycourts.gov/supctmanh). Judge Kraus' Order constitutes the decision and order of the Court. A full-text copy of the Court's Aug. 12, 2022 Decision + Order is available at https://tinyurl.com/kx7nr7m4 from Leagle.com. 1GLOBE CAPITAL: Gestion Sues Over Control of Sinovac Shares ----------------------------------------------------------- MW GESTION, individually and on behalf of all others similarly situated, Plaintiff v. 1GLOBE CAPITAL LLC; JIAQIANG LI; CHIANG LI FAMILY; JEFF LI; and LINDA LI, Defendants, Case No. 1:22-cv-11315-NMG (D. Mass., Aug. 16, 2022) is a federal securities class action arises out of the Defendants' fraud in connection with their battle for control of Sinovac, a biopharmaceutical company that focuses on the research, development, manufacturing, and commercialization of vaccines. According to the complaint, since January 2016, competing sets of shareholders have been vying for control of Sinovac. The Defendants are individuals and entities associated with 1Globe Capital LLC ("1Globe"), a family investment office that is owned and controlled by the Defendant Jiaqiang Li. Li was Sinovac's largest shareholders when the Company's CEO made an offer in January 2016 to buy Sinovac for approximately $350 million. Li supported a competing group that sought to buy Sinovac for a higher price. Rather than provide this support in an open and transparent manner, Li and 1Globe used deceptive practices to advance their position. After Sinovac adopted a rights agreement on March 28, 2016 containing a "poison pill" that limited the amount of Sinovac stock that a shareholder could acquire (the "Rights Agreement"), the Defendants made many intentionally false and misleading statements, and violated their statutory disclosure obligations under the Securities Exchange Act of 1934, in order to conceal the extent and purpose of Li's and 1Globe's ownership of Sinovac stock, says the suit. 1GLOBE CAPITAL LLC engaged in private and public investments, specifically in the healthcare and high-tech sectors. [BN] The Plaintiff is represented by: Glen DeValerio, Esq. Daryl Andrews, Esq. ANDREWS DEVALERIO LLP P.O. Box 67101 Chestnut Hill, MA 02467 Telephone: (617) 999-6473 Email: daryl@andrewsdevalerio.com glen@andrewsdevalerio.com - and - Jeremy A. Lieberman, Esq. Michael Grunfeld, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (917) 463-1044 Email: jalieberman@pomlaw.com mgrunfeld@pomlaw.com ahood@pomlaw.com 260 PARTNERS LP: Najera-Ordonez's Bid for Summary Judgment Granted ------------------------------------------------------------------ Judge Lynn R. Kotler of the Supreme Court of the State of New York, New York County, grants the Plaintiffs' motion for summary judgment in the lawsuit captioned JORGE A NAJERA-ORDONEZ, et al. v. 260 PARTNERS L.P., et al., Index No. 160546/2017 (N.Y. Sup.). The lawsuit is a class action alleging Roberts v. Tishman Speyer Props., L.P. (13 N.Y.3d 270 [2009]) type J-51 rent overcharges. The Plaintiffs now move for summary judgment in their favor and to dismiss the Defendants' affirmative defenses and counterclaims. The Defendants oppose the motion and cross-move for an order: (a) granting them summary judgment; (b) permitting them to file and amend Division of Housing and Community Renewal ("DHCR") apartment registrations for 2013 through 2017 in accordance with the four-year rule; and (c) scheduling a hearing before a special referee to determine the apartments' current rents and the Plaintiffs' overcharge damages in accordance with the four-year rule. The Plaintiffs oppose the cross-motion. Issue has been joined and note of issue has not yet been filed. Therefore, summary judgment relief is available. In an interim order dated March 11, 2022, the Court directed the Plaintiff to refile each exhibit on NYSCEF and adjourned the motion for oral argument on April 19, 2022. Oral argument was held on that date. Subsequently, in an interim order dated July 19, 2022, the Court erroneously scheduled this motion for oral argument again. Since that order was issued in error, it is sua sponte vacated, as the Court advised via email to the parties on July 27, 2022. Plaintiffs Jorge A. Najera-Ordonez and E. Lopez, individually, and on behalf of all others similarly situated, tenants and former tenants at the building located at 260 Convent Avenue in Manhattan. Specifically, there are 37 apartments at issue. The Defendants are 260 Partners, L.P., which owns the apartment building and Beach Lane Management, the managing agent for the building. The undisputed facts are that following Roberts, which held that rent-regulated apartments could not be removed from rent stabilization while the building received J-51 benefits, the Defendants continued deregulating units in the building. Specifically, eight units were removed from the rent-stabilization rolls after Roberts was decided. Further, Mitchell Rothken, a manager of Beach Lane, admitted that he, and Beach Lane, knew of the Roberts decision in 2009. It is also undisputed that the Defendants did not promptly re-register units after the First Department's decision in Gersten v. 56 7th Ave. LLC, (88 A.D.2d 189 [1st Dept 2011]) decision, which required that apartments deregulated pre-Roberts, needed to be returned to the rent-stabilization rolls promptly. Finally, Judge Kotler notes, the Plaintiffs have shown that when the Defendants re-registered apartments for rent-stabilization, they utilized preferential rents in violation of guidance provided by DHCR vis-a-vis its J-51 FAQ. On this record, the Plaintiffs have, thus, shown that the Defendants engaged in fraud and not just because they deregulated apartments while receiving J-51 benefits, Judge Kotler holds. Contrary to the Defendants' contention, the Plaintiffs have shown more than merely allege the dates of the deregulations. Defense counsel asserts that indeed, other than apartment 105, these apartments were deregulated or last registered as rent stabilized prior to March 6, 2012, the date that the appeal from Gersten v. 56 7th Ave. LLC, 88 A.D.3d 189 (1st Dep't 2011), in which the Appellate Division first determined that Roberts applied retroactively, was withdrawn. This argument is unavailing in the face of the undisputed facts on this record, Judge Kotler points out. Mitchell Rothken, a manager of Beach Lane, the managing agent for the building testified in another J-51 action, that he, and Beach Lane, knew of the Roberts decision in 2009. In 2015, Beach Lane issued refunds and registered rent-stabilized units in a nearby building but took no action at 260 Convent. In 2016, the Division of Housing and Community Renewal ("DHCR"), issued a "J51 FAQ," which advised landlords to re-register their units, yet the Defendants waited an additional six months to register. When the Defendants did register, they used rents for some of the units that were higher than the rent being paid by tenants. Such acts were in contravention to the explicit guidance from DHCR in the J51 FAQ which advised that the legal regulated rent to be registered cannot exceed the actual rent being paid by the tenant, Judge Kotler opines. In total, Judge Kotler finds, the Defendants' conduct demonstrates a fraudulent scheme to deregulate the apartments at the building. The Defendants argue that the issue of whether they engaged in a fraudulent scheme cannot be answered on a building-wide basis but must be considered apartment by apartment. The Court disagrees. The Defendants' treatment of all of the apartments at the building should not be considered myopically in a vacuum. The Defendants contend that only eight apartments were deregulated after Roberts, but there is no dispute that the Defendants did not promptly attempt to register the 29 apartments improperly deregulated before Roberts. The Defendants' reliance on Gridley v. Turnbury Vil., LLC, (196 A.D.3d 95 [2d Dept 2021]) is misplaced, as the deregulation at issue was made in good faith, Judge Kotler explains. There is no evidence on this record that the Defendants' actions here were made in good faith. The Plaintiffs are also entitled to summary judgment dismissing the Defendants' affirmative defenses, Judge Kotler holds. Beach Lane is not immune to liability because as the Plaintiffs' counsel correctly points out, it participated in the fraudulent scheme and is, therefore, a proper party. Thus, the second and third affirmative defenses that Beach Lane has no privity with the Plaintiffs or is an agent for a disclosed principal are severed and dismissed. Judge Kotler also holds that the remaining defenses are either meritless (fraud with particularity, previous recovery, compliance with application regulations, primary residence, statute of limitations, unjust enrichment), conclusory (another adequate remedy at law, good faith reliance, waiver/release/estoppel, documentary evidence, failure to state a cause of action) or inapplicable (unconstitutional retroactive damages, the Plaintiffs do not seek treble damages in this class action, four-year defense). Since the Plaintiffs have established by clear and convincing evidence that the Defendants engaged in a fraudulent scheme to deregulate the subject apartments, the default formula under RSC Section 2522.6[b][3] must be applied, Judge Kotler holds. Accordingly, the issue of the proper calculations for base rent dates and legally regulated rent-stabilized rents utilizing the DHCR's default formula for each of the 37 apartments at issue is referred to a Special Referee or JHO to hear and report. After a motion to confirm or reject the Report of the JHO/Special Referee is decided, the Plaintiffs may move for the entry of money judgments for rent overcharges and legal fees, if any. In accordance therewith, it is ordered that the Court's interim order dated July 19, 2022, which erroneously scheduled this motion for oral argument on Aug. 2, 2022, is vacated. The Plaintiff's motion is granted to the extent that the Court finds that the Defendants engaged in a fraudulent scheme to deregulate the subject 37 apartments, the Defendants' affirmative defenses are dismissed and the issues of: (1) calculating the base rent date for each Plaintiff's apartment utilizing the DHCR's default formula; and (2) calculating the maximum legal regulated rent for each Plaintiff's apartment are referred to a Special Referee to hear and report. Judge Kotler directs the Plaintiffs to, within 60 days from entry of this decision/order, serve a copy of this Order with notice of entry, together with a complete Information Sheet, upon the Special Referee Clerk in the Motion Support Office (Room 119M), who is directed to place this matter on the calendar of the Special Referee's Part and/or assign this matter to a JHO for the earliest convenient date. Any motion to confirm or reject the Report of the JHO/Special Referee will be made within the time and in the manner specified in CPLR 4403 and section 202.44 of the Uniform Rules for the Trial Courts. The Defendants' cross-motion is denied. Any requested relief not expressly addressed here has nonetheless been considered and is hereby expressly rejected and this constitutes the decision and order of the Court. A full-text copy of the Court's Decision and Order dated Aug. 11, 2022, is available at https://tinyurl.com/yc6vn7ey from Leagle.com. 3M COMPANY: Graff Sues Over Exposure to Highly Toxic Chemicals -------------------------------------------------------------- Khalifah Graff, and other similarly situated v. 3M COMPANY fka MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.; CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC.; KIDDE FIRE FIGHTING, INC.; KIDDE PLC, INC.; NATIONAL FOAM, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS, LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100, INCLUSIVE; Case No. 2:22-cv-02268-RMG (D.S.C., July 14, 2022), is brought involving highly toxic chemicals which have earned the designation "the forever chemicals" because they do not breakdown and their insidious nature allows them to travel through soil and into groundwater while maintaining their deadly nature for decades. This action deals with Aqueous Film Forming Foams ("AFFF") that were designed, manufactured and sold as firefighting compounds. AFFF compounding includes Perfluoro octane Sulfonate (commonly known as "PFOS"), PerfluorooctanoicAcid (commonly known as "PFOA"), and/or other Per-and Polyfluoroalkyl substances (together, with PFOS and PFOA, commonly known as "PFAS") which are manmade organofluorine compounds (in this case commonly referred to as fluorinated surfactants/fluorocarbon surfactants). The compounds are designed to lower the surface tension of water so as to create a firefighting foam to quell/smother (cutting off oxygen), for example, jet fuel fires. AFFF is created by mixing fluorine-free hydrocarbon foaming substances (chemical agents designed for a particular purpose) with fluorinated surfactants and mixing that with water which creates an aqueous film, i.e.: Aqueous Film Forming Foams ("AFFF"). The manufacturing processes involved in this action are asserted to have used fluorocarbon surfactants which are believed to include PFOS and PFOA (and/or other per fluorinated compounds known as "PFC" are also believed to be in the mix. PFC's are posited to break down in PFOS and PFOA). The Plaintiff joined the US Army in 1994 and was subsequently assigned to Fort Hood, Texas (2002-2004). At all times relevant, Plaintiff lived/worked on Post at Fort Hood using and drinking the water. Fort Hood is suspected to have elevated PFAS environmental contamination levels. In 2016, Graff was diagnosed with thyroid disease and commenced on-going medical treatment inclusive of surgical intervention via a right thyroid lobectomy. As known by the Defendants, thyroid disease is a disease linked to PFAS contamination. The Plaintiff did not discover that PFAS was a cause of the harm until Summer 2020, when she saw internet information, says the complaint. The Plaintiff was a member of the U.S. Army, who during her service was stationed at Fort Hood, a military installation identified as being contaminated through use of the toxic chemicals which are the subject of this action. The Defendants are designers, marketers, developers, manufacturers, distributors, releasers, instructors, promotors and sellers of PFAS containing AFFF products or underlying PFAS containing chemicals used in AFFF production.[BN] The Plaintiff is represented by: Jeremy C. Shafer, Esq. BANNER LEGAL 445 Marine View Avenue, Suite 100 Del Mar, CA 92014 Phone: (760) 479-5404 Email: jshafer@bannerlegal.com - and - S. James Boumil, Esq. BOUMIL LAW OFFICES 120 Fairmount Street Lowell, MA, 01852 Phone: (978) 458-0507 Email: sjboumil@boumil-law.com - and - Konstantine Kyros, Esq. KYROS LAW 17 Miles Rd. Hingham, MA 02043 Phone: (800) 934-2921 Email: kon@kyroslaw.com 3M COMPANY: Happel Sues Over Exposure to Toxic Film-Forming Foams ----------------------------------------------------------------- Robert Happel, and other similarly situated v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS AMERICAS, INC., AMEREX CORPORATION, ARCHROMA MANAGEMENT, LLC, ARCHROMA U.S., INC., ARKEMA, INC., individually and as successor-in-interest to Atofina, S.A., BASF CORPORATION, individually and as successor-in-interest to Ciba, Inc., BUCKEYE FIRE EQUIPMENT CO., CARRIER GLOBAL CORPORATION, individually and as successor-interest to Kidde-Fenwal, Inc., CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC., CHEMICALS, INC., CHUBB FIRE, LTD., CLARIANT CORPORATION, CORTEVA, INC., individually and as successor-in-interest to DuPont Chemical Solutions Enterprise, DEEPWATER CHEMICALS, INC., DUPONT DE NEMOURS, INC., individually and as successor-in-interest to DuPont Chemical Solutions Enterprise, DYNAX CORPORATION, E.I. DUPONT DE NEMOURS & COMPANY, individually and as successor-in-interest to DuPont Chemical Solutions Enterprise, KIDDE-FENWAL, INC., individually and as successor-in-interest to Kidde Fire Fighting, Inc., KIDDE PLC, INC., NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE CHEMOURS COMPANY, individually and as successor-in-interest to DuPont Chemical Solutions Enterprise, THE CHEMOURS COMPANY FC, LLC, individually and as successor-in-interest to DuPont Chemical Solutions Enterprise, TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE Interlogix, Inc.), Case No. 2:22-cv-02273-RMG (D.S.C., July 14, 2022), is brought for damages for personal injury resulting from exposure to aqueous film-forming foams ("AFFF") containing the toxic chemicals collectively known as per and polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS") and related chemicals including those that degrade to PFOA and/or PFOS. AFFF is a specialized substance designed to extinguish petroleum-based fires. It has been used for decades by military and civilian firefighters to extinguish fires in training and in response to Class B fires. The Defendants collectively designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold, and/or otherwise released into the stream of commerce AFFF with knowledge that it contained highly toxic and bio persistent PFASs, which would expose end users of the product to the risks associated with PFAS. Further, the Defendants designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold and/or otherwise handled and/or used underlying chemicals and/or products added to AFFF which contained PFAS for use in firefighting. PFAS binds to proteins in the blood of humans exposed to the material and remains and persists over long periods of time. Due to their unique chemical structure, PFAS accumulates in the blood and body of exposed individuals. PFAS are highly toxic and carcinogenic chemicals. Defendants knew, or should have known, that PFAS remain in the human body while presenting significant health risks to humans. The Defendants' PFAS-containing AFFF products were used by the Plaintiff in their intended manner, without significant change in the products' condition. Plaintiff was unaware of the dangerous properties of the Defendants' AFFF products and relied on the Defendants' instructions as to the proper handling of the products. Plaintiff's consumption, inhalation and/or dermal absorption of PFAS from Defendant's AFFF products caused Plaintiff to develop the serious medical conditions and complications alleged herein. Through this action, the Plaintiff seeks to recover compensatory and punitive damages arising out of the permanent and significant damages sustained as a direct result of exposure to the Defendants' AFFF products at various locations during the course of Plaintiff's training and firefighting activities. Plaintiff further seeks injunctive, equitable, and declaratory relief arising from the same, says the complaint. The Plaintiff regularly used, and was thereby directly exposed to, AFFF in training and to extinguish fires during his working career as a military and/or civilian firefighter and was diagnosed with prostate cancer as a result of exposure to the Defendants' AFFF products. The Defendants are designers, marketers, developers, manufacturers, distributors, releasers, instructors, promotors and sellers of PFAS containing AFFF products or underlying PFAS containing chemicals used in AFFF production.[BN] The Plaintiff is represented by: Richard Zgoda, Jr. , Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Phone: 631-600-0000 Facsimile: 631-543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Phone: 205-328-9200 Facsimile: 205-328-9456 3M COMPANY: Torres-Irizarry Sues Over Exposure to Toxic Chemicals ----------------------------------------------------------------- Randi Torres-Irizarry, and other similarly situated v. 3M COMPANY fka MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.; CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC.; KIDDE FIRE FIGHTING, INC.; KIDDE PLC, INC.; NATIONAL FOAM, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS, LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100, INCLUSIVE; Case No. 2:22-cv-02265-RMG (D.S.C., July 14, 2022), is brought involving highly toxic chemicals which have earned the designation "the forever chemicals" because they do not breakdown and their insidious nature allows them to travel through soil and into groundwater while maintaining their deadly nature for decades. This action deals with Aqueous Film Forming Foams ("AFFF") that were designed, manufactured and sold as firefighting compounds. AFFF compounding includes Perfluoro octane Sulfonate (commonly known as "PFOS"), PerfluorooctanoicAcid (commonly known as "PFOA"), and/or other Per-and Polyfluoroalkyl substances (together, with PFOS and PFOA, commonly known as "PFAS") which are manmade organofluorine compounds (in this case commonly referred to as fluorinated surfactants/fluorocarbon surfactants). The compounds are designed to lower the surface tension of water so as to create a firefighting foam to quell/smother (cutting off oxygen), for example, jet fuel fires. AFFF is created by mixing fluorine-free hydrocarbon foaming substances (chemical agents designed for a particular purpose) with fluorinated surfactants and mixing that with water which creates an aqueous film, i.e.: Aqueous Film Forming Foams ("AFFF"). The manufacturing processes involved in this action are asserted to have used fluorocarbon surfactants which are believed to include PFOS and PFOA (and/or other per fluorinated compounds known as "PFC"' are also believed to be in the mix. PFC's are posited to break down in PFOS and PFOA). The Plaintiff joined the Army and was subsequently assigned to Fort Hood, TX (1996-1997). The Plaintiff lived/worked on Base at Fort Hood using and drinking the water. On information and belief, Fort Hood is believed to have elevated PFAS environmental contamination levels. In 2011, Pina was diagnosed with kidney cancer and commenced on-going medical treatment inclusive of surgical intervention via a right partial nephrectomy. As known by the Defendants, kidney cancer is a disease linked to PFAS contamination. The Plaintiff did not discover that PFAS was a cause of the harm until Summer 2020 when he saw internet information, says the complaint. The Plaintiff was a member of the U.S. Army, who during his service was stationed at Fort Hood, a military installation identified as being contaminated through use of the toxic chemicals which are the subject of this action. The Defendants are designers, marketers, developers, manufacturers, distributors, releasers, instructors, promotors and sellers of PFAS containing AFFF products or underlying PFAS-containing chemicals used in AFFF production.[BN] The Plaintiff is represented by: Jeremy C. Shafer, Esq. BANNER LEGAL 445 Marine View Avenue, Suite 100 Del Mar, CA 92014 Phone: (760) 479-5404 Email: jshafer@bannerlegal.com - and - S. James Boumil, Esq. BOUMIL LAW OFFICES 120 Fairmount Street Lowell, MA, 01852 Phone: (978) 458-0507 Email: sjboumil@boumil-law.com - and - Konstantine Kyros, Esq. KYROS LAW 17 Miles Rd. Hingham, MA 02043 Phone: (800) 934-2921 Email: kon@kyroslaw.com 4 WHEEL PARTS: Fails to Pay Proper Wages, Estrada Alleges --------------------------------------------------------- LEOBARDO ESTRADA, individually and on behalf of all others similarly situated, Plaintiff v. 4 WHEEL PARTS WHOLESALERS, LLC; TRANSAMERICAN AUTO PARTS COMPANY, LLC; POLARIS INDUSTRIES, INC.; SKILLSET GROUP, INC.; and DOES 1 TO 100, INCLUSIVE, Case No. 22STCV26601 (Cal. Super., Los Angeles Cty., Aug. 17, 2022) is an action against the Defendant for failure to pay minimum wages, overtime compensation, and provide accurate wage statements. Plaintiff Estrada was employed by the Defendants as staff. 4 WHEEL PARTS WHOLESALERS, LLC is engaged in providing truck, Jeep, SUV and off-road performance products. [BN] The Plaintiff is represented by: Joseph Lavi, Esq. Vincent C. Granberry, Esq. Danielle E. Montero, Esq. LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Blvd., Suite 200 Beverly Hills, CA 90211 Telephone: (310) 432-0000 Facsimile: (310) 432-0001 Email: jlavi@lelawfirm.com vgranberry@lelawfirm.com dmontero@lelawfirm.com whteam@lelawfirm.com A CAB LLC: Court Affirms Class Settlement Approval in Dubric Suit ----------------------------------------------------------------- In the lawsuit entitled MICHAEL MURRAY; MICHAEL RENO; MICHAEL SARGEANT, INDIVIDUALLY AND ON BEHALF OF A CLASS OF PERSONS SIMILARLY SITUATED; MARCO BAKHTIARI; MICHAEL BRAUCHLE; THOMAS COHOON; GARY GRAY; JORDAN HANSEN; ROGER KELLER; CHRIS D. NORVELL; POLLY RHOLAS; AND GERRIE WEAVER, Appellants v. JASMINKA DUBRIC, INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED; A CAB, LLC, A NEVADA LIMITED LIABILITY COMPANY; A CAB SERIES LLC; EMPLOYEE LEASING COMPANY, A NEVADA SERIES LIMITED LIABILITY COMPANY; AND CREIGHTON J. NADY, AN INDIVIDUAL, Respondents, Case No. 83492 (Nev.), the Supreme Court of Nevada affirms the judgment of the district court. Chief Justice Ronald David "Ron" Parraguirre, writing for the Panel, states that the matter is an appeal from a district court order approving a class action settlement (Judge Kathleen E. Delaney of the Eighth Judicial Distinct Court, Clark County.) The Appellants and Respondent Jasminka Dubric are taxi drivers, who allege that their employers, Respondents A Cab, LLC, and A Cab Series LLC, Employing Leasing Company (collectively, the A Cab Respondents) failed to pay them and other drivers minimum wage. The taxi drivers filed two separate class action suits against the A Cab Respondents: the underlying matter brought by Dubric (the Dubric Action) and another brought by Appellants Michael Murray, Michael Reno, and Michael Sargeant (collectively, the Murray Intervenors) (the Murray Action). The Murray Intervenors secured a judgment against the A Cab Respondents in the Murray Action, see A Cab, LLC v. Murray, 137 Nev., Adv. Op. 84, 501 P.3d 961 (2021), and then intervened in the Dubric Action, objecting to the proposed class action settlement because of its potential impact on the judgment in the Murray Action. The remaining Appellants are unnamed class members of both the Murray Action and the Dubric Action, who objected to the Dubric Settlement. The Murray Intervenors unsuccessfully sought to recuse or disqualify Judge Kathleen Delaney from presiding over the Dubric Action due to alleged bias toward their counsel. After sending notice to all potential class members, class counsel in the Dubric Action received nine objections to the proposed class settlement and only one member, in addition to the Murray Intervenors, opted out. Thereafter, the district court conducted a final fairness hearing and granted the Respondents' joint motion to approve their proposed settlement, finding that the settlement was fair, reasonable, and adequate and in the best interest of the class members. The Appellants now challenge the order granting final approval of the Dubric Settlement, as well as the order denying the Murray Intervenors' motion to disqualify Judge Delaney. As a preliminary matter, the Panel first rejects the A Cab Respondents' arguments that the Appellants lack standing to bring this appeal, as the Appellants are potentially aggrieved by the Dubric Settlement order in that it appears to release some of the class claims against the A Cab Respondents for less than the amount of the judgments obtained in the Murray Action. Although the Murray Intervenors cannot demonstrate that they are individually aggrieved because they were not included in the Dubric Settlement Class, Judge Parraguirre concludes that they have standing as class representatives to assert claims on behalf of those Murray class action members, who may be adversely affected by the Dubric Settlement. And this Court has previously recognized that unnamed class members, who objected to a proposed settlement, have standing to appeal that settlement. Next, the Panel rejects the Appellants' challenge to the order denying the motion to disqualify Judge Delaney. The Murray Intervenors' motion to intervene in the Dubric Class Action was still pending when they sought Judge Delaney's disqualification. Therefore, the Murray Intervenors were not yet parties to the Dubric Class Action, and thus lacked standing to move to disqualify Judge Delaney. As such, Judge Parraguirre concludes that the district court did not abuse its discretion when it denied the motion to disqualify. The Panel also rejects the Appellants' challenge to Dubric serving as the class representative because she is a judgment debtor of the A Cab Respondents in a related federal action. Judge Parraguirre opines that the judgment that forms the basis of Dubric's purported conflict of interest did not arise until after the Respondents reached a settlement in the Dubric Action and the record does not otherwise demonstrate that she had an injury or interest in the outcome of the litigation that differed from the other class members such that she could not fairly and adequately protect the interests of the class. Finally, while the Appellants advance several arguments contesting the Dubric Settlement terms, they fail to point to any Nevada caselaw or statute that would require reversal, Judge Parraguirre holds. And although the Court declines the Appellants' invitation to adopt the Ninth Circuit's eight-factor test for determining whether a proposed class action settlement is fair, adequate, and reasonable at this time, the Panel notes that the district court here appeared to consider many of those factors and the Dubric Settlement would likely satisfy that test if applied. Indeed, Judge Parraguirre discerns no abuse of discretion in the district court's decision to approve the Dubric Class Settlement. The record demonstrates that the Respondents reached the settlement as the result of lengthy negotiations after conducting a significant amount of discovery and with the assistance of both a jointly retained expert and an experienced judicial officer. And although there were objections to the settlement, the number of objections represented only a small fraction of the total class, and those objectors chose not to opt out of the settlement. Lastly, Judge Parraguirre notes that no Nevada caselaw or statute requires the district court to make specific findings regarding the individual objections to a proposed class settlement or its basis for approving such a settlement as the Appellants suggest. Based upon the foregoing, the Court affirms the judgment of the district court. A full-text copy of the Court's Opinion dated Aug. 11, 2022, is available at https://tinyurl.com/6e8s59zv from Leagle.com. AANIIIH NAKODA: Weidley Suit Removed to N.D. Alabama ---------------------------------------------------- Normajean Weidley, for herself and on behalf of a class of similarly situated v. AANIIIH NAKODA FINANCE LLC, d/b/a BRIGHT LENDING; BORROWWORKS, LLC; BENJAMIN E. GATZKE; and A through Z, being those individuals and entities whose names are unknown, but will be ascertained; and who are responsible, in their individual and/or official capacities, for the unlawful actions alleged herein,, Case No. 47-CV-2022-900674.00 was removed from the Circuit Court of Madison County, Alabama, to the United States District Court for the Northern District of Alabama on July 20, 2022, and assigned Case No. 5:22-cv-00905-HNJ. The State Court Action alleges that the Plaintiff and others in the putative statewide class executed loan contracts with Defendants that "imposed finance charges which exponentially exceeded Alabama's legal limit" and "made by entities not licensed in Alabama." The Plaintiff asserts that the Defendants used loan documents which select tribal law as the governing law to be applied to any dispute. the Plaintiff wrongly alleges that Defendants operated a "rent-a-tribe" scheme in order to evade state law, including the Alabama Small Loans Act ("ASLA"). Additionally, despite the fact that Aaniih Nakoda Finance's consumer loan agreement do not require or even offer arbitration, the Plaintiff makes numerous allegations regarding a "mandatory arbitration provision" and states this provision is unconscionable. These allegations appear to have been cut-and-pasted from some other complaint and are unconnected to the Plaintiff's Aaniiih Nakoda Finance loan.[BN] The Defendant is represented by: Brandon T. White, Esq. HOLLAND & KNIGHT LLP 701 Brickell Avenue, Suite 3300 Miami, FL 33131 Phone: (305) 374-8500 Facsimile: (305) 789-7799 Email: brandon.white@hklaw.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 formerly known as: Browing Dodge, Fiat Chrysler Automobiles FCA US, LLC, Does 1-50, inclusive, 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-JWH-ADS 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 No 5015 San Diego, CA 92122 Phone: (858) 529-2372 Email: dan@jmglawoffices.com - and - 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 - and - Scott H. Morgan, Esq. Stephen A. D'Aunoy, Esq. THOMPSON COBURN LLP One US Bank Plaza St. Louis, MO 63101 Phone: (314) 552-6000 Fax: (314) 552-7000 Email: smorgan@thompsoncoburn.com sdaunoy@thompsoncoburn.com AARON EQUIPMENT: Serrano Sues Over Illegal Collection of Biometrics ------------------------------------------------------------------- ALBERTO SERRANO, individually and on behalf of other persons similarly situated v. AARON EQUIPMENT COMPANY, INC., Case No. (Ill. Cir., Dupage Cty., Aug. 2, 2022) is a class action by Alberto Serrano to obtain statutory damages and other equitable relief under the Illinois Biometric Information Privacy Act. The Plaintiff and class members are subject to the unlawful biometric scanning and storage practices of Aaron Equipment. As past and present employees of Defendant, Plaintiff and class members were required to provide it with their personalized biometric identifiers and the biometric information derived therefrom (biometric data). Specifically, the Defendant collects and stores its employees’ fingerprints and requires all the employees to clock-in and clock-out by scanning their fingerprints into a fingerprint-scanning machine, the lawsuit says. Following the capture of their employees' biometric data, Defendant uses this data to compare the future scans of their employees’ fingerprints into a punch-clock device. The punch-clock device scans each fingerprint and confirms that the employee punching in to work is who they claim to be. The collection of the punch-clock fingerprint entries is then used to confirm employees’ presence, the lawsuit adds. Aaron Equipment specializes in chemical, food & beverage, pharmaceutical, plastics, cosmetic, paint and coatings, adhesive, waste water and related processing.[BN] The Plaintiff is represented by: Roberto Luis Costales, Esq. William H. Beaumont, Esq. BEAUMONT COSTALES LLC 107 W. Van Buren, Suite 209 Chicago, IL 60605 Telephone: (773) 831-8000 E-mail: rlc@beaumontcostales.com whb@beaumontcostales.com ABBOTT LABORATORIES: Dodson Files Suit in S.D. Illinois ------------------------------------------------------- A class action lawsuit has been filed against Abbott Laboratories, et al. The case is styled as Demarco Dodson, individually, and on behalf of his minor child "D.D.", and all others similarly situated v. Abbott Laboratories doing business as: Abbott Nutrition, Abbott Laboratories, Inc., Case No. 3:22-cv-01627-RJD (S.D. Ill., July 21, 2022). The nature of suit is stated as Personal Injury: Health Care/Pharmaceutical Personal Injury Product Liability. Abbott Laboratories -- https://www.abbott.com/ -- is an American multinational medical devices and health care company with headquarters in Abbott Park, Illinois.[BN] The Plaintiff is represented by: Douglas R. Plymale, Esq. DUGAN LAW FIRM 365 Canal Street, Suite 1000 New Orleans, LA 70130 Phone: (504) 648-0180 Fax: (504) 648-0181 Email: dplymale@dugan-lawfirm.com ADAM J. RUBINSTEIN: Rivera Sues Over Unsolicited Text Messaging --------------------------------------------------------------- Misma Rivera, individually and on behalf of all others similarly situated v. ADAM J. RUBINSTEIN, M.D., P.A., Case No. 0:22-cv-61271-JEM (S.D. Fla., July 8, 2022), is brought pursuant to the Telephone Consumer Protection Act (the "TCPA"), and the Florida Telephone Solicitation Act ("FTSA") as a result of the Defendant's engagement in unsolicited text messaging. To promote its goods and services, the Defendant engages in unsolicited text messaging to those who have not provided Defendant with their prior express written consent as required by the FTSA and in violation of the National Do Not Call Registry. The Defendant's telephonic sales calls have caused Plaintiff and the Class members harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy. Through this action, Plaintiff seeks an injunction and statutory damages on behalf of Plaintiff and the Class members and any other available legal or equitable remedies resulting from the unlawful actions of Defendant, says the complaint. The Plaintiff is the regular user of the cellular telephone number that received the telephonic sales calls. The Defendant is a resident of Miami-Dade County, Florida with its business located in Aventura.[BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 East Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Phone: 954.400.4713 Email: mhiraldo@hiraldolaw.com - and - Michael Eisenband, Esq. EISENBAND LAW, P.A. 515 E. Las Olas Boulevard, Suite 120 Ft. Lauderdale, FL 33301 Phone: 954.533.4092 Email: MEisenband@Eisenbandlaw.com ADVANCED PHARMACY: Sandusky Files Placeholder Bid for Class Status ------------------------------------------------------------------ In the class action lawsuit captioned as SANDUSKY WELLNESS CENTER, LLC, an Ohio limited liability company, individually and as the representative of a class of similarly-situated persons, v. ADVANCED PHARMACY CONCEPTS, LLC, a Georgia limited liability company, a/k/a Manifest Pharmacy, Case No. 3:22-cv-01384-JZ (N.D. Ohio), Sandusky Wellness file a "placeholder" motion for class certification in order to prevent against a "buy-off" attempt, a tactic class-action defendants sometimes use to attempt to prevent a case from proceeding to a decision on class certification by attempting to "moot" the named plaintiff's claims by tendering the plaintiff individual (but not classwide) relief. In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the Supreme Court held "an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case," and "a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted." The Sixth Circuit applied Campbell-Ewald in an unreported opinion in Family Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508, 2016 WL 384823 (6th Cir. Feb. 2, 2016). In Wilson v. Gordon, 822 F.3d 934, 949-50 (6th Cir. 2016), the Sixth Circuit held that, even where "the parties did not dispute that all eleven named plaintiffs' individual claims became moot before the district court certified the class," the "picking-off" exception applied and allowed the named plaintiffs with moot individual claims to pursue class certification, which would "relate back" to the filing of the complaint, applying Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth Circuit held this ruling was consistent with Campbell-Ewald, 136 S. Ct. at 672, which refused to put defendants "in the driver's seat" on class certification. The named plaintiffs in Wilson had filed a "contemporaneous" motion for class certification the same day as the complaint. Id. The Sixth Circuit recognized that "the district court in Roper already had denied the motion for class certification when the defendant sought to pick off the named plaintiff," while the district court in Wilson ruled on class certification after the plaintiffs' claims became moot. Id. at 948. It held there was "no distinction" there because "[i]n both scenarios, the defendant is on notice that the named plaintiff wishes to proceed as a class, and the concern that the defendant therefore might strategically seek to avoid that possibility exists." The Plaintiff proposes the following class definition: "All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendant, (3) from whom Defendant did not obtain "prior express invitation or permission" to send fax advertisements, or (4) with whom Defendant did not have an established business relationship, and/or (5) where the fax advertisements did not include an opt-out notice compliant with 47 C.F.R. section 64.1200(a)(4)(iii)." Advanced Pharmacy was founded in 1997. The company's line of business includes providing management consulting services. A copy of the Plaintiff's motion dated Aug. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3PQAjPb at no extra charge.[CC] The Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: rkelly@andersonwanca.com AFLAC INCORPORATED: Valenzuela Sues Over Illegal Wiretapping ------------------------------------------------------------ Sonya Valenzuela, individually and on behalf of all others similarly situated v. AFLAC INCORPORATED, a Georgia corporation; and DOES 1 through 25, inclusive, Case No. 22STCV23742 (Cal. Super. Ct., July 22, 2022), is brought against the Defendant for its illegal wiretapping of their electronic communications with the Defendant's website, https://www.aflac.com. Unbeknownst to visitors to the Website, the Defendant has secretly deployed "keystroke monitoring" software that Defendant uses to surreptitiously intercept, monitor, and record the communications (including keystrokes and mouse clicks) of all visitors to its Website. The Defendant neither informs visitors nor seeks their express or implied consent prior to this wiretapping. The Defendant has violated and continues to violate the California Invasion of Privacy Act ("CIPA"), entitling the Plaintiff and Class Members to relief pursuant thereto, says the complaint. The Plaintiff visited Defendant's website within the past year. The Defendant is a Georgia corporation and does business and affects commerce within the state of California and with California residents.[BN] The Plaintiffs are represented by: Scott J. Ferrell, Esq. David W. Reid, Esq. Victoria C. Knowles, Esq. PACIFIC TRIAL ATTORNEYS A Professional Corporation 4100 Newport Place Drive, Ste. 800 Newport Beach, CA 92660 Phone: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com dreid@pacifictrialattorneys.com vknowles@pacifictrialattorneys.com AFNI INC: Powell Files Suit in C.D. Illinois -------------------------------------------- A class action lawsuit has been filed against Afni, Inc. The case is styled as Marian Caldwell Powell, individually, and on behalf of all others similarly situated v. Afni, Inc., Case No. 1:22-cv-01247-JBM-JEH (C.D. Ill., July 25, 2022). The nature of suit is stated as Other Contract. Afni -- https://afni.com/ -- is a global contact center company that is based in the US and has clients all over the world.[BN] The Plaintiff is represented by: Ben Barnow, Esq. Anthony Lee Parkhill, Esq. Riley W. Prince, Esq. BARNOW AND ASSOCIATES PC 205 West Randolph Street, Suite 1630 Chicago, IL 60606 Phone: (312) 621-2000 Fax: (312) 641-5504 Email: b.barnow@barnowlaw.com aparkhill@barnowlaw.com The Defendant is represented by: James J. Sipchen, Esq. PRETZEL & STOUFFER CHARTERED One S Wacker Dr., Ste 2500 Chicago, IL 60606-4673 Phone: (312) 346-1973 Email: jsipchen@pretzel-stouffer.com ALLSTATE FIRE: Seeks Oral Argument in Keister Class Status Bid -------------------------------------------------------------- In the class action lawsuit captioned as CHONG KEISTER and RUSSELL KEISTER, on behalf of themselves and all others similarly situated v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Case No. 4:20-cv-00953-FJG (W.D. Mo.), Allstate asks the Court to enter an order oral argument and set Plaintiff's Motion for hearing. On May 20, 2022, the Plaintiffs Chong and Russell Keister filed their Motion for Class Certification, and Suggestions in Support, seeking to certify two classes of policyholders, one requesting injunctive and declaratory relief and the other seeking damages. The Plaintiffs' claims arise from subrogation that defendant Allstate allegedly sought after making payments under the plaintiffs' automobile insurance policy for an accident that occurred out of state. Allstate filed its Suggestions in Opposition to Plaintiffs' Motion, on June 21, 2022, arguing that the proposed classes do not meet the requirements of Federal Rule of Civil Procedure 23, including due to the myriad of individualized inquiries that bear on their claims, including various states' laws, differing claims processes, and the personal attributes of the policyholders and circumstances surrounding their policies, accidents, and claims. Allstate operates as an insurance firm. A copy of the Defendant's motion dated Aug. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3PQfvHI at no extra charge.[CC] The Defendant is represented by: Dawn B. Williams, Esq. FAEGRE DRINKER BIDDLE & REATH LLP 1500 K Street NW, Suite 1100 Washington, DC 20005 Telephone: (202) 230-5226 Facsimile: (202) 842-8465 E-mail: dawn.williams@faegredrinker.com - and - Michael J. Carroll, Esq. 801 Grand Avenue, 33rd Floor Des Moines, IO 50309 Telephone: (515) 447-4737 Facsimile: (515) 248-9010 E-mail: michael.carroll@faegredrinker.com ALLSTATE PROPERTY: Limited Scheduling Order Entered in Cummings --------------------------------------------------------------- In the class action lawsuit captioned as PAGGIWA CUMMINGS v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Case No. 3:22-cv-00247-JWD-EWD (M.D. La.), the Hon. Judge Erin Wilder-Doomes entered a limited scheduling order as follows: 1. The deadline to join other parties or to file a motion for leave to amend the pleadings is September 30, 2022. 2. Discovery must be completed as follows: a. Exchanging initial disclosures required by F.R.C.P. 26(a)(1): August 12, 2022. b. Filing all discovery motions and completing all discovery except experts: June 14, 2023. c. Disclosure of identities and resumes of experts. Experts relevant to class certification are governed by this order; any further experts will be addressed after a ruling on class certification: -- Plaintiff(s): November 21, 2022 -- Defendant(s): December 21, 2022 d. Expert reports must be submitted to opposing parties as follows: -- Plaintiff(s): February 13, 2023 -- Defendant(s): March 15, 2023 -- Rebuttal experts: April 14, 2023 e. Discovery from experts must be completed by May 17, 2023. 3. Filing of Motion for Class Certification: June 21, 2023 Response to Motion for Class Certification: July 23, 2023 Reply in Support of Motion for Class Certification: August 21, 2023 4. Deadline to file dispositive motions and Daubert motions: September 27, 2023 No later than 14 days after a ruling on the Motion for Class Certification, the parties shall file a motion for a scheduling conference to set the remaining case-related deadlines. A copy of the Court's order dated Aug. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3PMKYuu at no extra charge.[CC] AMAZON.COM INC: Herbs and Spices Contain Heavy Metals, Pettis Says ------------------------------------------------------------------ SHERRI PETTIS, individually and on behalf of all others similarly situated, Plaintiff v. AMAZON.COM, INC., and WHOLE FOODS MARKET, INC., Defendants, Case No. 2:22-cv-01115 (W.D. Wash., Aug. 10, 2022) seeks to recover damages and injunctive relief for Defendants' continuing failure to disclose to consumers that certain Whole Foods herbs and spices, sold under its trade name of "365 By Whole Foods Market," including Defendants' Basil, Cumin, and Ground Ginger, contain (or risk containing) heavy metals like lead, arsenic, and cadmium. According to the complaint, consumers who purchase the products are injured by Defendants' acts and omissions concerning the presence (or risk) of heavy metals. No reasonable consumer would know, or have reason to know, that the products contain (or risk containing) such heavy metals. Worse, as companies across the industry have adopted methods to limit heavy metals in their herbs and spices, Defendants have stood idly by with a reckless disregard for their consumers' health and well‐being, alleges the suit. Plaintiff Pettis began purchasing the 365 by Whole Foods Market Ground Ginger in 2018 from a Whole Foods retail location in Pittsburgh, Pennsylvania. Amazon.com, Inc. is an American multinational technology company which focuses on e-commerce, cloud computing, digital streaming, and artificial intelligence. Whole Foods Market, Inc. manufactures, markets, and sells herbs and spices under the Whole Foods 365 brand name throughout the United States.[BN] The Plaintiff is represented by: Beth E. Terrell, Esq. Jennifer Rust Murray, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103 Telephone: (206) 816‐6603 Facsimile: (206) 319‐5450 E-mail: bterrell@terrellmarshall.com jmurray@terrellmarshall.com - and - Jonathan Shub, Esq. Kevin Laukaitis, Esq. SHUB LAW FIRM LLC 134 Kings Highway E., 2nd Floor Haddonfield, NJ 08033 Telephone: (856) 772‐7200 Facsimile: (856) 210‐9088 E-mail: jshub@shublawyers.com klaukaitis@shublawyers.com - and - Gary E. Mason, Esq. Danielle Perry, Esq. MASON LLP 5101 Wisconsin Avenue NW, Suite 305 Washington, DC 20016 Telephone: (202) 640‐1168 Facsimile: (202) 429‐2294 Email: gmason@masonllp.com dperry@masonllp.com - and - L. Timothy Fisher, Esq. Sean L. Litteral, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300‐4455 Facsimile: (925) 407‐2700 E-mail: ltfisher@bursor.com slliteral@bursor.com - and - Lori G. Feldman, Esq. GEORGE GESTEN MCDONALD, PLLC 102 Half Moon Bay Drive Croton‐on‐Hudson, NY 10520 Telephone: (833) 346‐3587 Facsimile: (888) 421‐4173 E-mail: lfeldman@4‐justice.com - and - David J. George, Esq. Brittany L. Brown, Esq. GEORGE GESTEN MCDONALD, PLLC 9897 Lake Worth Road, Suite #302 Lake Worth, FL 33467 Telephone: (561) 232‐6002 Facsimile: (888) 421‐4173 E-mail: dgeorge@4‐justice.com bbrown@4‐justice.com - and - Janine L. Pollack, Esq. CALCATERRA POLLACK LLP 1140 Avenue of the Americas, 9th Floor New York, NY 10036 Telephone: (212) 899‐1765 Facsimile: (332) 206‐2073 E-mail: jpollack@calcaterrapollack.com AMERICAN BEHAVIORAL: Lomedico Files Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against American Behavioral Research Institute LLC. The case is styled as Aimee Lomedico, on behalf of herself and all others similarly situated v. American Behavioral Research Institute LLC doing business as: Relaxium, Case No. 3:22-cv-04621-ZNQ-RLS (S.D.N.Y., July 18, 2022). The nature of suit is stated as Other Fraud for Deceptive Trade Practices. American Behavioral Research Institute LLC doing business as Relaxium -- https://www.relaxium.com/ -- is an all-natural sleep aid, developed by a clinical neurologist to help achieve best full night's rest.[BN] The Plaintiff is represented by: James Robert Denlea, Esq. Jeffrey I. Carton, Esq. Steven Russell Schoenfeld, Esq. Stanislav Sharovskiy, Esq. DENLEA & CARTON LLP 2 Westchester Park Dr, Suite 410 White Plains, NY 10604 Phone: (914) 331-0100 Fax: (914) 331-0105 Email: jdenlea@denleacarton.com jcarton@denleacarton.com sschoenfeld@denleacarton.com ssharovskiy@denleacarton.com AMERICAN HONDA: Class Cert Hearing Continued Until March 2, 2023 ---------------------------------------------------------------- In the class action lawsuit captioned as DAVID MACTAVISH, JOHNSON QU, MARGARET WEBB, PAUL TWOMEY, ELVIN GOMEZ, GERALD MORLOCK, and LARRY WALL, individually and on behalf of all others similarly situated, v. AMERICAN HONDA MOTOR CO., INC., Case No. 2:21-cv-04289-GW-JEM (C.D. Cal.), the Hon. Judge George H. Wu entered an order granting stipulation to continue hearing on motion for class certification and related deadlines: 1. the deadlines established under ECF No. 42, requiring Plaintiffs' reply brief in support of their motion for class certification to be filed by September 12, 2022 and setting a hearing on the motion for class certification for September 29, 2022, are vacated; and 2. the hearing on the motion for class certification is continued until March 2, 2023, with Plaintiffs' reply brief in support of their motion for class certification to be filed no later than February 15, 2023 at 8:30 a.m. American Honda develops and manufactures automobiles. A copy of the Court's order dated Aug. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3dVnGoI at no extra charge.[CC] AMERICAN NATIONAL: Griggs Alleges Illegal Overdraft Fee Collection ------------------------------------------------------------------ BRIAN GRIGGS, on behalf of himself and all others similarly situated v. AMERICAN NATIONAL BANK AND TRUST COMPANY, Case No. 7:22-cv-00450-MFU (W.D. Va. Aug. 4, 2022) is a class action on behalf of the Plaintiff and a class of similarly situated individuals against the Defendant over the improper assessment and collection of $36 Overdraft (OD) Fees on debit card transactions authorized on sufficient funds. According to the complaint, besides being deceptive, this practice breaches the Defendant's standardized adhesion contract. The practice also breaches Defendant's duty of good faith and fair dealing, and unjustly enriches Defendant to the detriment of its customers. Through the imposition of these fees, Defendant has made substantial revenue to the tune of millions of dollars, seeking to turn its customers' financial struggles into revenue. The Plaintiff, like thousands of others, has fallen victim to Defendant's fee revenue maximization schemes, the lawsuit says. The Plaintiff is a citizen of Ripplemead, Virginia and has maintained a checking account with Defendant at all times relevant hereto. The Defendant is a bank with more than $3 billion in assets and its principal place of business in Danville, Virginia. It does business in North Carolina and Virginia.[BN] The Plaintiff is represented by: Devon J. Munro, Esq. MUNRO LAW PC PO Box 7205 Roanoke, VA 24019 Telephone: (540) 900-4636 E-mail: dmunro@trialsva.com - and - J. Gerard Stranch, IV, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Telephone: (615) 254-8801 E-mail: gerards@bsjfirm.com - and - Lynn A. Toops, Esq. COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 Telephone: (317) 636-6481 E-mail: ltoops@cohenandmalad.com - and - Christopher D. Jennings, Esq. JOHNSON FIRM 610 President Clinton Avenue, Suite 300 Little Rock, AR 72201 Telephone: (501) 372-1300 E-mail: chris@yourattorney.com ANTHEM GLENVIEW: Misclassifies Dining Services Directors, Suit Says ------------------------------------------------------------------- The case, ROBERT BANASZAK, on behalf of himself and all other Plaintiffs similarly situated, known and unknown, Plaintiff v. ANTHEM GLENVIEW MANAGEMENT, LLC d/b/a EMERALD PLACE AND ANTHEM MEMORY GROUP, Defendants, Case No. 1:22-cv-04327 (N.D. Ill., August 16, 2022) arises from the Defendant's alleged illegal employment practice that violated the Fair Labor Standards Act and the Illinois Minimum Wage Law. The Plaintiff has worked for the Defendant from approximately June 2020 to April 2022. He was initially employed by the Defendant as a non-exempt Cook and later promoted to a salaried role as Dining Services Director (DSD). According to the complaint, the Plaintiff was improperly classified by the Defendant as salary-exempt employee when he was offered the job of DSD. Despite working over 40 hours in many work weeks, the Defendant denied him of overtime premiums at the applicable overtime rate in accordance with the FLSA. Accordingly, the Defendant also improperly classified all other similarly situated DSDs as salary-exempt employees and were denied of their lawfully earned overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek, says the suit. The Plaintiff brings this complaint on behalf of herself and all other similarly situated DSDs seeking to recover back pay equal to the amount of all unpaid compensation; prejudgment interest with respect to the amount of unpaid overtime compensation; reasonable attorneys' fees and court costs incurred; and the relief as the Court deems appropriate under the circumstances. Anthem Glenview Management, LLC is a full service nursing and assisted living facility located at 879 Chestnut Ave. in Glenview, Illinois. [BN] The Plaintiff is represented by: Samuel D. Engelson, Esq. John William Billhorn, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 1137 Chicago, IL 60604 Tel: (312) 853-1450 ASSURANCE IQ: Court Extends Deadline to File Class Cert Bid ----------------------------------------------------------- In the class action lawsuit captioned as JOSPEH ROGERS, DEBRA JONES STEVENSON, FRANK GARRIDO, TAYLOR ARMIGER, and GWENDOLYN THOMPSON, on behalf of themselves and all others similarly situated, v. ASSURANCE IQ, LLC and BOOMSOURCING LLC, Case No. 2:21-cv-00823-TL (W.D. Wash.), the Hon. Judge Tana Lin entered a Minute Order as follows: 1. In light of the partially assented motion to extend deadlines, the Court hereby extends the deadlines for completion of fact and expert discovery and for the Plaintiffs to file a motion for class certification, to be reset after the Court rules on the pending motions to dismiss. 2. The parties shall meet and confer and propose new deadlines within 7 days of the Court’s Order on the motions to dismiss. Assurance IQ is a digital insurance and financial company. A copy of the Court's order dated Aug. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3QThImO at no extra charge.[CC] AYA HEALTHCARE: Faces O'Dell Suit Over "Bait-And-Switch" Practices ------------------------------------------------------------------ LAURA O'DELL, HANNAH BAILEY, and HOLLY ZIMMERMAN, individually and on behalf of all others similarly situated v. AYA HEALTHCARE, INC., Case No. 3:22-cv-01151-BEN-BLM (S.D. Cal., Aug. 4, 2022) alleges that Aya's "bait-and-switch" practices are so widespread that it appears to be a core tenet of the company's business model. According to the complaint, hundreds if not thousands of nurses employed by Aya across the country have reported experiencing mid-contract pay reductions after starting an assignment with Aya, with many reporting that Aya reduced their pay multiple times within the same assignment orslashed their pay by 50% or more than what was originally promised. Many are afraid to speak out against the practice because they believe Aya will blacklist them from Aya's growing network of healthcare providers where it serves as the primary staffing agency, says the suit. Allegedly, Aya is knowingly engaging in these "bait-and-switch" practices to 25 maintain the significant profit margins it had become accustomed to during the COVID-19 pandemic and to gain a competitive advantage that will allow it to become the exclusive staffing agency for more hospitals and healthcare providers. Aya is offering contracts to travel nurses with a fixed-term assignment at an agreed-upon pay rate. After the nurse accepts the position and starts the assignment, Aya makes a "take-it-or-leave-it" demand to accept less pay or be terminated. Of course, most nurses have no choice but continue working the assignment at the lower rate because they have no reasonable alternatives for comparable employment: they have already incurred travel expenses, secured short-term housing, and uprooted their lives to accept the assignment, asserts the suit. The lawsuit seeks recovery for the pay losses Plaintiffs and other travelers experienced as the result of Aya's predatory business practices. Additionally, Aya is underpaying its travel employees for overtime hours worked. By law, employers must pay their employees one-and-a-half times their "regular rate" for all hours worked over forty in a workweek. But in determining this "regular rate", Aya has only included its employees' direct hourly cash wage among other items, and has excluded, in violation of the law, other parts of its employees' compensation packages, thereby resulting in an artificially low rate of pay for overtime hours worked, the suit further alleges. On its company website, Aya holds itself out as "an employer our team members are proud to work for" and declares that "we strive to provide the best service in the industry to our clinicians and clients." Aya's CEO has also stated that he "believes that treating clinicians well directly and positively impacts patient care.[BN] The Plaintiffs are represented by: Jason S. Hartley, Esq. Jason M. Lindner, Esq. HARTLEY LLP 101 West Broadway, Suite 820 San Diego, CA 92101 Telephone: (619) 400-5822 Facsimile: (619) 400-5832 E-mail: hartley@hartleyllp.com lindner@hartleyllp.com - and - George A. Hanson, Esq. J. Austin Moore, Esq. K. Ross Merrill, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: 816-714-7100 E-mail: hanson@stuevesiegel.com moore@stuevesiegel.com merrill@stuevesiegel.com BANK OF AMERICA: District of Maryland Tosses Mohamed's EFTA Claim ----------------------------------------------------------------- In the lawsuit entitled YAGOUB M. MOHAMED, Individually and on behalf of all others similarly situated v. BANK OF AMERICA, N.A., et al., Case No. CCB-21-1283 (D. Md.), Judge Catherine C. Blake of the U.S. District Court for the District of Maryland grants Bank of America's motion to dismiss as to Count One, which is for violation of the Electronic Fund Transfer Act. Plaintiff Mohamed was eligible for unemployment benefits during the COVID-19 pandemic, but he lost access to nearly $15,000 in those benefits when an unauthorized user fraudulently used the Bank of America prepaid debit card that was meant to deliver his funds. He brought claims against the Bank for violation of the federal Electronic Fund Transfer Act, violations of state privacy and consumer protection laws, and common-law breach of contract and negligence. He brought those claims individually and on behalf of a putative class of Maryland residents, who were issued Bank of America prepaid debit cards for unemployment benefits. Bank of America filed a motion to dismiss, which Mohamed opposed and Bank of America supported in its reply. The issues have been briefed, and oral argument was held June 9, 2022. Mohamed's Experience Mohamed was a mechanic and small business owner, who suddenly lost his business (and significant income) in July 2020 due to the COVID-19 pandemic. That month, he applied for unemployment benefits. While self-employed individuals might not normally have been eligible for state unemployment insurance, federal supplemental programs like Pandemic Unemployment Assistance (PUA) benefits also were administered by the Maryland state Division of Unemployment Insurance (DUI), an office of the state Department of Labor. Though Mohamed had the option to receive his disbursements via paper check, he signed up to receive his benefits on a Bank of America DUI Debit Card that was to be mailed to his Baltimore home address. The Complaint is silent as to Mohamed's decision calculus at the time. Between July and October 2020, Mohamed was entitled to receive $14,644 in benefits, but he had still not received his DUI Debit Card by the end of November 2020. He had called the DUI office regularly during those months, but DUI representatives advised him that he might experience a 45- or 90-day delay due to the high applicant volume. When he called in late November 2020, the representative advised that Mohamed should have already received the card, which would have been mailed by Bank of America, North America (BANA). He then called BANA, whose representative told him that the Bank had already mailed his card and that BANA would mail a new card. On Dec. 5, 2020, Mohamed received the DUI Debit Card. But when he tried to activate the card, the activation code did not work. He called the customer service line and learned the card had a $0 balance. He waited a few days to give the Bank an opportunity to finish setup, and he called back on Dec. 7, 2020; the Bank's representative told him that although the account had received the full $14,644 disbursement, the funds from his account had already been spent. A Claims Department representative read aloud each transaction to Mohamed, who confirmed that he had not made or authorized any of them. Between August 20 and October 1 of that year, an unauthorized user had bought goods and made withdrawals in a wide range of locations, from Towson, Maryland, to Hollywood, California. None of the transactions were familiar, nor did Mohamed know who had made them. After receiving a claim number from the Bank, Mohamed filed a police report and provided that information to BANA's Claims Department as requested. The Claims Department told him he would receive a letter from BANA within 45 days. From late December into January, Mohamed called the Bank weekly and then daily to inquire about his claim; representatives told him to call back, or he received messages stating the office was too busy to accept his call. Without any financial resources, Mohamed maxed out his business and personal credit cards. He incurred late fees, sending his credit score from 750 to 500, and he fell behind on his monthly payments. He struggled with depression, sleeplessness, and stress-induced vomiting. On Dec. 27, he experienced a panic attack exacerbated by exhaustion and dehydration, requiring an urgent care visit. On Jan. 5, 2021, Mohamed received a Freeze Letter from BANA, a letter BANA sent to Maryland DUI recipients, who had filed fraud claims. The letter observed that BANA had determined there might be unauthorized activities involved with his card, so his account had been frozen. When he logged into his account, he saw a new identification verification requirement, which he satisfied. About a month later, on Feb. 3, the Bank emailed him to notify him of a $1,050 deposit into his account. While his account had been frozen, the Bank had stopped processing his fraud claim. Mohamed and other similarly affected unemployment insurance claimants, who experienced fraud received confusing, conflicting messaging from the Bank and DUI about who was responsible for account freezes. Continued calls to the Bank through the rest of February yielded little meaningful assistance. On March 3, he received an Update Letter stating that the freeze had been lifted and his card was active once again. Again, he received mixed messages about his fraud claim and whether it remained active or was eligible for reconsideration. When Mohamed filed the lawsuit in late May of 2021, BANA had not given him either a provisional or permanent credit for his $14,644 in lost unemployment funds, though he had received notice from the State requiring him to pay taxes on the full amount. On June 25, 2021, the Bank informed Mohamed that it would credit him the full amount. The Bank filed its motion to dismiss on Aug. 2, 2021. Bank of America and the Maryland Division of Unemployment Insurance Well before the pandemic, Bank of America contracted with DUI to administer prepaid debit cards for electronic payment of unemployment insurance benefits. The 2013 Request for Proposal stated that it sought a disbursement solution to "ensure cardholders receive the UI benefits to which they are entitled, efficiently, timely, accurately, and securely." The RFP required the contractor to have in place reasonable security procedures and to make sure information about cardholders and their accounts is secured to ensure its confidentiality. It also included provisions that DOL would not indemnify the Contractor (eventually, the Bank) for any claims or losses arising out of the Contract and requiring that the Contractor indemnify and hold harmless DOL. In 2013, Bank of America accepted the contract with DUI, and Mohamed incorporates that state contract into the complaint by reference. The RFP and Contract also required information about fraud detection and prevention services. Bank of America also published a separate webpage tailored to Maryland UI debit cardholders. Cardholders were subject to a Bank of America Cardholder Agreement that contained several relevant provisions. First, it contained BANA's "Zero Liability" Policy for Unauthorized Transactions, a policy that limits a cardholder's liability for unauthorized transactions to the amount of the transaction, so long as the cardholder notifies BANA within a reasonable time. The policy specifies that even if the claim does not meet the Zero Liability conditions, the cardholder still retains their consumer rights under federal law. That federal law is the subject of the second relevant provision. The Zero Liability policy refers to Regulation E, a federal regulation that implements the Electronic Fund Transfer Act and is administered by the Consumer Finance Protection Bureau. This law and its regulation concern dispute resolution for certain accounts. The Account Agreement outlined Bank of America's dispute resolution services: BANA would determine whether there was an error within 10 days and correct it promptly. If they need more time, however, they could take up to 45 days to investigate, in which case they would provisionally credit the disputed amount within 10 days so the Cardholder would have the money during the investigation. BANA would reveal the results within three days of completing the investigation. The DUI announced in 2021 that it would move away from Bank of America prepaid debit cards in favor of a new contract for direct deposit through Wells Fargo. Card Technologies The nature of the Bank of America debit cards is particularly noteworthy here, Judge Blake notes. Mohamed's card -- like all other UI debit cardholders' but unlike the Bank's non-UI debit cardholders' -- featured a magnetic stripe and no EMV chip. EMV chips are an anti-fraud technology that have become more common over time as the industry standard for card security. Magnetic stripes encode user information, like the cardholder's name, card number, and card expiration date, but magnetic stripes are highly susceptible to fraud. While EMV chip cards also have a magnetic stripe, their stripes are two-way and are encoded in a more sophisticated fashion. Bank of America's website assures cardholders of their cards' security. The Class Action Mohamed was not the only Maryland unemployment claimant to experience fraud. In July 2020, the DOL uncovered a criminal enterprise involving 47,500 fraudulent employment claims using identity theft totaling over $501 million, where many claimants believe their debit cards were cloned. He brings his suit individually and as a proposed class action, seeking damages on behalf of a class defined as follows: All Maryland Residents who were issued or who used a Bank of America debit card for the purpose of accessing DUI benefits deposited into a Bank of America account, at any time within three years prior to the filing of this complaint through the present (Class Period). Violations of EFTA (Count I) Mohamed alleges that the Bank violated the Electric Fund Transfer Act, and this claim is the only federal claim in his lawsuit. The Electronic Fund Transfer Act (EFTA) is a consumer' protection statute that regulates the terms of certain transactions. BANA concedes that if Regulation E applies to the case; then Mohamed has a claim at least for statutory penalties, but according to BANA, Regulation E does not apply, primarily because Mohamed received pandemic unemployment assistance rather than traditional unemployment insurance. BANA argues that the EFTA's and Regulation E's definition of a covered "account" excludes various types of prepaid accounts, including those established by a bank and loaded with government disaster funds. BANA's argument hinges on step two, which excludes certain accounts from the definition of "prepaid account" under 12 C.F.R. Section 1005.2(b)(3)(ii)(B) -- specifically, accounts both established through a third party and loaded only with qualified disaster relief payments. The parties debate whether Mohamed's PUA account is a "prepaid account" covered under EFTA or whether it is carved out of the definition of "prepaid account" according to step two -- that is, Regulation E's exclusion of any "account that is directly or indirectly established through a third party and loaded only with qualified disaster relief payments." If the PUA payments are qualified disaster relief payments, then Mohamed's account is carved out of the definition of "prepaid account" under EFTA, and he cannot bring his federal EFTA claim. Mr. Mohamed argues that, while the pandemic was in March 2020 declared by President Trump a disaster warranting federal assistance under the Stafford Act, PUA payments were actually authorized by Congress in the CARES Act for the "COVID-19 public health emergency" rather than a disaster. Specifically, it was tied initially to the public health emergency declared by the Secretary of Health and Human Services in January 2020 rather than the March 2020 disaster declaration by President Trump. According to Mohamed, the CARES Act showed a Democratic House and Senate explicitly acting separately from President Trump and not tying their measures to his prospective declaration. The Internal Revenue Code, however, favors BANA's argument, Judge Blake says. Even if the CARES Act was tied initially to the January 2020 HHS declaration, the CARES Act nonetheless referred to the pandemic itself, which was subsequently declared a disaster warranting Stafford Act assistance. The pandemic is, therefore, a "federally qualified disaster" under 26 U.S.C. Section 165(i)(5)(A) and a "qualified disaster" under IRC Section 139(c)(2), meaning PUA payments were "qualified disaster relief payments" under IRC Section 139(b)(4), Judge Blake opines. The payments, therefore, satisfy the CFPB's official interpretation of Regulation E Section 1005.2(b)(3)(ii)(B) and are excluded from the definition of "prepaid account," therefore, falling outside of EFTA's definition of covered "accounts." Count I must, therefore, be dismissed, Judge Blake holds. State Law Claims To the extent Mohamed alleges BANA has violated state law in Counts II-VI, the Court declines to exercise supplemental jurisdiction and will dismiss the state claims without prejudice. For the reasons discussed, Bank of America, N.A.'s motion to dismiss will be granted. A separate Order follows. A full-text copy of the Court's Memorandum dated Aug. 11, 2022, is available at https://tinyurl.com/2kxzpm2m from Leagle.com. BLANTON & SONS: Russo Seeks Unpaid Overtime Under FLSA ------------------------------------------------------ Anthony Russo On Behalf of Himself and All Others Similarly Situated v. Blanton & Sons, Inc., Brandon Blanton, individually, Case No. 2:22-cv-02504-BHH (D.S.C., Aug. 2, 2022) is a class action for violations of unpaid overtime provisions of the Fair Labor Standards Act and the South Carolina Payment of Wages Act. The Plaintiff brings this action, individually and as an opt-in collective action pursuant to 29 U.S.C. section 216(b), on behalf of a class of all employees who worked in excess of 40 hours in any given work week, but who did not receive overtime compensation for such hours within the last three years. Blanton is a full-service HVAC company that provides installation, maintenance and repair of heating and air conditioning systems. Blanton also provides a range of other services such as plumbing, indoor air-quality products and duct system repairs.[BN] The Plaintiff is represented by: Marybeth Mullaney, Esq. 652 Rutledge Ave Suite 1A Charleston, SC 29403 Telephone: (843) 588-5587 E-mail: marybeth@mullaneylaw.net BLENDTEC INC: Isaac Sues Over Blenders' Blade Assembly Defect ------------------------------------------------------------- SHELLY ISAAC, ALEXANDER ZAMUDIO and STEVE OBERLY, individually and on behalf of all others similarly situated v. BLENDTEC, INC., Case No. 1:22-cv-11254-RGS (D. Mass, Aug. 4, 2022) arises from the Defendant's representations of its blenders which contain a uniform design and/or manufacturing defect in the blade assembly of the jars that causes leakage. According to the complaint, the inadequate and incompatible materials used in the Jar's Blade Assembly lead to friction and accelerated deterioration of the bearings, seals, and rubber ("Blade Assembly Defect"). The Defect results in leakage, smoking, vibrating, and/or loud grinding sounds while in use. The ultimate result of the Defect is premature total failure of the Jar's Blade Assembly, rendering the Blender useless, says the suit. As the Defect degrades the Blade Assembly, small pieces of rubber, silicone, and/or plastic contained within the Blade Assembly's components may also migrate to the Jar. This is a safety hazard to purchasers, who are at risk of unknowingly ingesting the deteriorated rubber, silicone, and/or plastic through food and beverages. Each of the Jars suffer from the uniform Defect, which, unknown to consumers but known to Blendtec, exists at the point of purchase. The Blenders are significantly more expensive than competing residential blenders. Given the price point of the Products and the Products representations, Plaintiffs and Class Members expected them to last at least 10-years. As the Blender base cannot operate without a Blendtec Jar, the Blenders are rendered completely unusable by the Blade Assembly Defect in the Jar. Blendtec has long known about the Defect, but has failed to disclose the Defect to consumers, instead waiting for consumers to complain that the Blenders leak, degrade, or otherwise fail to operate as a reasonable consumer would expect. When consumers do complain about the Defect, Blendtec replaces the Jar with an equally defective Jar, the suit asserts. The Plaintiffs and Class Members who have experienced the alleged defect have repeatedly put Blendtec on notice of the Defect, but Blendtec has nevertheless continued to sell its defective Blenders to consumers. Blendtec designs and manufactures high-speed commercial and residential blenders which are assembled at the company's Orem, Utah facility.[BN] The Plaintiffs are represented by: Alex R. Straus, Esq. Harper T. Segui, Esq. Erin J. Ruben, Esq. Rachel Soffin, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 280 South Beverly Drive, Penthouse Los Angeles, CA 90212 Telephone: (914) 471-1894 Facsimile: (919) 600-5035 E-mail: astraus@milberg.com hsegui@milberg.com eruben@milberg.com rsoffin@milberg.com BOB'S DISCOUNT: Court Dismisses Without Prejudice Glover's Claims ----------------------------------------------------------------- In the case, RENELL GLOVER, ET AL., Plaintiffs v. BOB'S DISCOUNT FURNITURE, LLC, ET AL., Defendants, Case No. 20-cv-10924 (JGK) (S.D.N.Y.), Judge John G. Koeltl of the U.S. District Court for the Southern District of New York issued a Memorandum Opinion and Order: a. granting the Defendants' motions to compel arbitration of Plaintiff Claudia Musella's claims; b. denying as moot their motions to dismiss Musella's claims; and c. granting their motions to dismiss Glover's claims without prejudice to Glover's ability to file an amended complaint. Plaintiffs Renell Glover and Claudia Musella brought the putative class action against Bob's and Guardian Protection Products, Inc., alleging breach of contract and related non-contract claims. The claims arise out of their purchase of furniture and of a protection plan for that furniture. The Defendants now move to dismiss the claims by Glover and to compel arbitration of or, in the alternative, to dismiss the claims by Musella. Bob's is a discount furniture store with several branches in New York. It offers a protection plan for its furniture called "Goof Proof." The plans are administered by Guardian. The complaint alleges that Guardian and Bob's worked in "partnership," that Guardian "collaborates with Bob's in drafting the language and marketing material for the Goof Proof plans," and that Guardian abetted Bob's misconduct. In February 2017, Glover purchased a sofa and a Goof Proof plan from a Bob's store. In September 2017, Musella purchased a recliner and a Goof Proof plan from a Bob's store. Upon completing their purchases, each plaintiff was given a receipt. Both receipts also included a signature line, which neither Plaintiff signed. The following page included several terms. Both receipts included a one-year warranty against factory defects. Glover's receipt further noted that the "complete Goof Proof Plan Terms and Conditions could be accessed at the" Bob's website. Both receipts also included a section headed "Resolution of Disputes." The section went on to provide some further information on what arbitration entailed. In November 2019, the frame of Glover's sofa "accidentally broke." Glover submitted a claim to Guardian. The Guardian representative asked that Glover submit further information, which Glover did. Guardian then denied Glover's claim. In December 2019, Musella noticed small tears in -- the fabric of her recliner. Musella contacted Bob's, which declined to compensate Musella, informing her that the factory-defect warranty had expired, and that the Goof Proof plan covered "one time damages that have resulted from a single incident." Plaintiffs Musella and Glover brought the putative class action, alleging breach of contract and related non-contract claims. Now before the Court are the Defendants' motions to dismiss the claims by Glover and to compel arbitration of or, in the alternative, to dismiss the claims by Musella. First, the back of Musella's receipt includes an arbitration provision. However, Musella argues that there is no agreement to arbitrate because Musella did not sign the receipt. This argument is without merit, Judge Koeltl opines. Musella's failure to repudiate the contract constitutes ratification. She had adequate notice of the arbitration clause. She was amply made aware that the reverse side contained terms that might affect Musella's rights, and one of the bolded, underlined headings on the reverse side was Resolution of Disputes," which referred to the arbitration procedure. Because Musella had adequate notice of the arbitration clause, Musella's failure to repudiate the contract constitutes acceptance of the arbitration clause. Moreover, Musella further ratified the contract by bringing a claim for breach of the contract. For these reasons, Musella ratified the arbitration clause, and is bound by it. Bob's and Guardian have therefore met their initial burden of showing that there was an agreement to arbitrate. Ms. Musella appears to argue in the Complaint that the arbitration provision is unconscionable. However, she abandons that argument by failing to repeat it in her opposition. In any event, Judge Koeltl finds this argument is without merit. The Plaintiff does not explain how the arbitration clause was either procedurally or substantively unconscionable. The cost of arbitration is not prohibitive. In any event, Guardian has agreed to pay Musella's filing fee. Musella has therefore not met its burden of showing that the arbitration clause is either procedurally or substantively unconscionable and thereby unenforceable. Because there is an agreement to arbitrate, because Musella has not shown that the agreement is unenforceable, and because the agreement covers "any and all claims and/or disputes between Musella and Bob's arising out of and/or related to this agreement, any products and/or services sold and/or purchased through Bob's, and/or any performance of any services related to this agreement," which language plainly covers this dispute, Bob's motion to compel arbitration of Musella's claims against Bob's is granted. Lastly, the arbitration clause was not signed by Guardian. Musella's claims against Guardian are intertwined with the contract between Musella and Bob's and it would be inequitable to allow Musella to escape the contract's obligation to arbitrate with respect to Guardian. Therefore, Guardian's motion to compel arbitration of Musella's claim is granted. Because Musella is required to arbitrate her claims against Bob's and Guardian, both the motions to dismiss Musella's claims are denied as moot. Next, Bob's and Guardian move to dismiss Glover's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. In deciding a motion to dismiss, the allegations in the complaint are accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. The Court may also consider documents that are integral to the complaint or incorporated by reference, such as contracts. Judge Koeltl opines that (i) Glover has not alleged that she was entitled to compensation under the Goof Proof plan or the one-year factory defect warranty, and therefore Glover has not alleged that the Defendants breached the contract by failing to compensate her; (ii) Glover has failed to state a claim against Guardian for the additional reason that Glover has not alleged adequately an agreement between Guardian and Glover; (iii) the claim for breach of express warranty also fails for the same reason as the breach of contract claim: Glover has not alleged any statement that suggested that the Goof Proof plans covered more than the plans in fact covered and Glover has not "set forth the terms of the warranty" that were allegedly breached; (iv) because Glover has not adequately alleged any state-law breach of warranty claims, Glover has not stated a claim under the Magnuson Moss Warranty Act. Judge Koeltl further opines that (i) Glover's allegation that Bob's sales representatives had incentives to misrepresent the scope of the Goof Proof coverage is entirely conclusory and does not meet the pleading standard required to survive a motion to dismiss under Rule 12(b)(6), let alone the heightened standard of Rule 9(b); (ii) because Glover fails specifically to allege any other deceptive practice, Glover's claims under sections 349 and 350 fail; (iii) Glover's claim under section 350 fails for the additional reason that the Plaintiff has not alleged any advertisement; and (iv) Glover's unjust enrichment claim merely repackages her defective contract and tort claims, and therefore fails for the same reasons: Glover has not identified any benefit that was conferred on the Defendants unfairly. Judge Koeltl has considered all of the arguments of the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the Defendants' motions to compel arbitration of Musella's claims are granted. Their motions to dismiss Musella's claims are denied as moot. Their motions to dismiss Glover's claims are granted without prejudice to Glover's ability to file an amended complaint. Glover may file a third amended complaint within 30 days of the date of the Memorandum Opinion and Order. The Clerk is directed to close all pending motions. A full-text copy of the Court's Aug. 12, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/yc8rbs84 from Leagle.com. BP EXPLORATION: Bids to Reschedule in Anderson, Related Suits Nixed ------------------------------------------------------------------- In the lawsuit styled LATONYA SHERELL ANDERSON v. BP EXPLORATION & PRODUCTION, INC., ET AL., SECTION: "H," Case No. 17-3022, Also filed in Case Nos. 17-3132, 17-3516, 17-3628, 17-3310, 17-3598, 17-3053, 17-3125, 17-3443, 17-3499, 17-3647, 17-3265, 17-4367, 17-4453 (E.D. La.), Judge Jane Triche Milazzo of the U.S. District Court for the Eastern District of Louisiana denies the Plaintiff's and other Plaintiffs' Motions to Continue All Scheduling Deadlines and to Refrain from Ruling on Dispositive Motions Pending the Completion of General Causation Discovery. Before the Court are identical motions from 14 different Plaintiffs. Each Plaintiff filed a Motion to Continue All Scheduling Deadlines and to Refrain from Ruling on Dispositive Motions Pending the Completion of General Causation Discovery. Defendants BP Exploration & Production, Inc.; BP America Production Company; and BP p.l.c. (collectively, "BP") oppose. These 14 Plaintiffs are among the "B3 bundle" of cases arising out of the Deepwater Horizon oil spill (In Re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, No. 10-md-02179, R. Doc. 26924 at 1 (E.D. La. Feb. 23, 2021)). This bundle comprises "claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant)." These cases were originally part of a multidistrict litigation ("MDL") pending in the Eastern District of Louisiana before Judge Carl J. Barbier. During this MDL, Judge Barbier approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but the B3 plaintiffs either opted out of this agreement or were excluded from its class definition. Subsequently, Judge Barbier severed the B3 cases from the MDL to be reallocated among the judges of this Court. The 14 cases were reassigned to Section H. The Plaintiffs ask the Court to continue all deadlines in their respective scheduling orders until their counsel has concluded discovery on BP's alleged failure to conduct dermal monitoring and biomonitoring on the oil spill response workers. Under Federal Rule of Civil Procedure 16(b), a scheduling order "may be modified only for good cause and with the judge's consent." The Court finds that the need for additional discovery does not constitute good cause for extending all deadlines in each scheduling order. The Plaintiffs' Motions also request that, in light of pending discovery issues in the case of Torres-Lugo v. BP Exploration & Production, Inc., No. 20-210, the Court should refrain from addressing any pending dispositive motions submitted by BP. However, the Court finds that the outcome of the additional discovery in Torres-Lugo does not affect the issues presented in many of BP's pending motions. Accordingly, the Court rules that the Motions to Continue All Scheduling Deadlines and to Refrain from Ruling on Dispositive Motions Pending the Completion of General Causation Discovery are denied in the following cases: Case No. Case Name Doc. # -------- --------- ------ 17-3132 Cotton v. BP Exploration & Production, Doc. 58 Inc., et al. 17-3516 Brown v. BP Exploration & Production, Doc. 79 Inc., et al. 17-3022 Anderson v. BP Exploration & Production, Doc. 60 Inc., et al. 17-3628 Aubert v. BP Exploration & Production, Doc. 50 Inc., et al. 17-3310 Joiner v. BP Exploration & Production, Doc. 52 Inc., et al. 17-3598 Peschlow v. BP Exploration & Production, Doc. 44 Inc., et al. 17-3053 Booth v. BP Exploration & Production, Doc. 82 Inc., et al. 17-3125 Charles v. BP Exploration & Production, Doc. 50 Inc., et al. 17-3443 Abdelfattah v. BP Exploration & Production, Doc. 48 Inc., et al. 17-3499 Boler v. BP Exploration & Production, Inc., Doc. 50 et al. 17-3647 Colbert v. BP Exploration & Production, Doc. 72 Inc., et al. 17-3265 Harris v. BP Exploration & Production, Doc. 47 Inc., et al. 17-4367 Jenkins v. BP Exploration & Production, Doc. 60 Inc., et al. 17-4453 Moore v. BP Exploration & Production, Doc. 51 Inc., et al. A full-text copy of the Court's Order and Reasons dated Aug. 11, 2022, is available at https://tinyurl.com/2sxd3pnc from Leagle.com. BP EXPLORATION: Court Grants Summary Judgment in Pettaway Suit -------------------------------------------------------------- In the case, JOHN B. PETTAWAY v. BP EXPLORATION & PRODUCTION, INC., ET AL., SECTION "R" (5), Civil Action No. 17-3599 (E.D. La.), Judge Sarah S. Vance of the U.S. District Court for the Eastern District of Louisiana grants 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 their motion for summary judgment. The case arises from the Plaintiff's alleged exposure to toxic chemicals following the Deepwater Horizon oil spill in the Gulf of Mexico. He alleges that he performed cleanup work after the Deepwater Horizon oil spill beginning on April 20, 2010. He asserts that, as part of this work, he was exposed to crude oil or dispersants. He also represents that this exposure has resulted in the following conditions: Cough, congestion, pharyngitis, facial pain or sinus pain, nasal discharge, diarrhea, dizziness, skin dryness/flaking, and itching. Mr. Pettaway's 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. He 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 the Plaintiff 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 May 31, 2022 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. As an initial matter, the BP parties assert that because the Plaintiff produced his expert reports almost a month after the deadline without leave of court, the Court should not consider the reports. In the alternative, they contend that Dr. Cook's expert report should be excluded, 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. Judge Vance explains that the Plaintiff has the burden of "proving that the legal cause of his claimed injury or illness is exposure to oil or other chemicals used during the response." At issue is whether he has produced admissible general causation evidence. To prove that exposure to the chemicals in oil and dispersants can cause the medical conditions he alleges, the Plaintiff offers the testimony of an environmental toxicologist, Dr. Cook. Dr. Cook asserts that his report is "based on the scientific methods used in the field of environmental toxicology." More specifically, he states that his "causation analysis regarding health effects of oil spill exposures draws on the process of evaluating epidemiology studies and the work from established expert groups similar to the Surgeon General's Advisory Committee to make a more likely than not conclusion." Judge Vance finds that 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. 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. In addition to finding Dr. Cook's general causation analysis unreliable, Judge Vance also finds that Dr. Cook's opinion is unhelpful because of his inability to link any specific chemical that Pettaway was allegedly exposed to, at the level to which he was exposed, to the conditions that he alleges in his complaint. 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. 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. Given that the Plaintiff cannot prove a necessary element of his claims against the Defendants, Judge Vance holds that his claims must be dismissed. Accordingly, she grants the Defendants' motion for summary judgment and dismisses the Plaintiff's claims with prejudice. A full-text copy of the Court's Aug. 16, 2022 Order & Reasons is available at https://tinyurl.com/73uabx4v from Leagle.com. BWC HARVEY LLC: Terrell Suit Removed to E.D. Louisiana ------------------------------------------------------ The case styled as Kimberly Terrell, Kelly Donahue, individually and on behalf of all others similarly situated v. BWC Harvey LLC formerly known as: Blackwater Harvey, LLC, Case No. 22-05104 J-15 was removed from the Civil District Court, Orleans Parish, to the U.S. District Court for the Eastern District of Louisiana on July 26, 2022. The District Court Clerk assigned Case No. 2:22-cv-02323-BWA-MBN to the proceeding. The nature of suit is stated as Other P.I. for Personal Injury. BWC Terminals -- https://www.bwcterminals.com/ -- is a premier provider of bulk liquid storage and related services in North America.[BN] The Plaintiffs are represented by: Scott R. Bickford, Esq. Jason Zachary Landry, Esq. Jeremy James Landry, Esq. Lawrence J. Centola, III, Esq. Neil Franz Nazareth, Esq. Spencer R. Doody, Esq. MARTZELL & BICKFORD 338 Lafayette St. New Orleans, LA 70130 Phone: (504) 581-9065 Email: srb@mbfirm.com jzl@mbfirm.com jjl@mbfirm.com lcentola@mbfirm.com nnazareth@mbfirm.com usdcedla@mbfirm.com The Defendant is represented by: Thomas A. Casey, Jr., Esq. Meghan Elizabeth Smith, Esq. JONES WALKER (NEW ORLEANS) 201 St. Charles Ave., Suite 5100 New Orleans, LA 70170 Phone: (504) 582-8294 Fax: (504) 589-8294 Email: tcaseyjr@joneswalker.com msmith@joneswalker.com - and - Alex Payton Prochaska, Esq. JONES WALKER (LAFAYETTE) 600 Jefferson St., Suite 1600 Lafayette, LA 70501 Phone: (337) 593-7600 Email: aprochaska@joneswalker.com C.O.C. BAKERY: Fails to Pay Cashiers' Proper Wages, Garcia Claims ----------------------------------------------------------------- MARISELA GARCIA, individually and on behalf of all others similarly situated, Plaintiff v. C.O.C. BAKERY CORP. (D/B/A LA VIENESA SPANISH AMERICAN BAKERY); CLARA MARTINEZ; and GUSTAVO MARTINEZ, Defendants, Case No. 1:22-cv-04817 (E.D.N.Y., Aug. 16, 2022) is an action against the Defendant for failure to pay minimum wages, overtime compensation, and provide accurate wage statements. Plaintiff Garcia was employed by the Defendants as cashier. BAKERY CORP. owns and operates a Colombian bakery, located at Sunnyside, NY 11104 under the name "La Vienesa Spanish American Bakery". [BN] The Plaintiff is represented by: Catalina Sojo, Esq. CSM LEGAL, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 CALIFORNIA STATE: Anders' Bid for Class Cert. Denied W/o Prejudice ------------------------------------------------------------------ In the case, TAYLOR ANDERS, et al., Plaintiffs v. CALIFORNIA STATE UNIVERSITY, FRESNO, et al., Defendants, Case No. 1:21-cv-00179-AWI-BAM (E.D. Cal.), Judge Anthony W. Ishii of the U.S. District Court for the Eastern District of California denies the Plaintiffs' motion for class certification without prejudice. Plaintiffs Taylor Anders, Hennessey Evans, Abbigayle Roberts, Megan Walaitis, Tara Weir and Courtney Walburger bring a motion for class certification under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. In the 2020-21 academic year, Fresno State sponsored eight varsity sports for men and 13 varsity sports for women. Each of these sports is segregated by sex. On Oct. 16, 2020, it announced it would stop offering men's wrestling, men's tennis and women's lacrosse at the end of the current 2020-21 academic year. On Feb. 12, 2021, Anders, Evans, Roberts, Walaitis and Weir filed this class action (as members of Fresno State's women's varsity lacrosse team) against Fresno State and certain Fresno State administrators (collectively, "Defendants") alleging that the Defendants violated Title IX of the Education Amendments of 1972, 20 U.S.C. Section 1681 et seq. and implementing regulations by failing to provide female students an equal opportunity to participate in varsity athletics (the "effective accommodation" claim); failing to provide female athletes with an equal allocation of financial aid (the "financial aid" claim); and failing to provide female athletes with benefits comparable to those provided to male athletes (the "equal treatment" claim). On Feb. 12, 2021, the Plaintiffs also filed a motion seeking a preliminary injunction barring Fresno State from cutting women's lacrosse -- or any other women's team -- and requiring Fresno State "to treat the women's lacrosse team and its members fairly" during the pendency of the litigation. The Court granted the motion as to equal treatment of the women's lacrosse team but did not bar elimination of the women's lacrosse team. On May 3, 2021, a First Amended Complaint ("FAC") was filed, adding Walburger as a sixth Plaintiff. On May 15, 2021, the Defendants filed a motion to dismiss the FAC in its entirety -- including the effective accommodation claim, the financial aid claim, and the equal treatment claim. The motion was granted, with leave to amend, as to the financial aid claim and denied as to the effective accommodation claim and the equal treatment claim. The Plaintiffs filed a Second Amended Complaint ("SAC") on Aug. 12, 2021 seeking to state a financial aid claim, and on Oct. 29, 2021, the Court granted, with prejudice, the Defendants' motion to dismiss the financial aid claim on a finding that, properly construed, data cited by the Plaintiffs showed that female student-athletes received a disproportionate share of athletic scholarships at Fresno State. The Defendants answered the SAC on Nov. 19, 2021, and on Feb. 25, 2022, the Plaintiffs brought the instant motion for class certification. In this motion, they seek certification under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil procedure of a class defined as follows: "All present and future women students and potential students at Fresno State who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics there. Further, they seek appointment of two Plaintiffs -- Anders and Walburger -- as class representatives and appointment of Bailey & Glasser, LLP as class counsel. The Plaintiffs argue, in the main, that class certification is warranted because the sex discrimination alleged is "inherently class-based" and that "the proposed class representatives will fairly, adequately, and vigorously represent the interests of the class." The Defendants argue that the proposed class is overbroad and that none of the four prerequisites for class certification under Rule 23(a) have been satisfied. Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure, which sets forth a two-part framework for deciding whether a class may be certified for representative litigation. First, Rule 23(a) asks whether a proposed class action satisfies each of the following four requirements: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Assuming all four of the Rule 23(a) prerequisites are satisfied, the second step of the analysis addresses whether the proposed class satisfies the requirements of Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3). Judge Ishii finds that the numerosity, typicality and commonality requirements of Rule 23(a) are satisfied as to the classes defined in the Order. As to the equal treatment claim, he defines the class as current and future female Fresno State students who: (i) participate or have participated in women's varsity intercollegiate athletics at Fresno State; and/or (ii) are able and ready to participate in women's varsity intercollegiate athletics at Fresno State but have been deterred from doing so by the treatment received by female varsity intercollegiate student-athletes at Fresno State. And as to the effective accommodation claim, he defines the class as current and future female Fresno State students who: (i) have lost membership on a women's varsity intercollegiate athletics team at Fresno State; (ii) have sought but not achieved membership on a women's varsity intercollegiate athletics team at Fresno State; and/or (iii) are able and ready to seek membership on a women's varsity intercollegiate athletics team at Fresno State but have not done so due to a perceived lack of opportunity. Judge Ishii further finds, however, that the proposed class representatives do not satisfy the Rule 23(a)(4) adequacy requirement because there are evidently conflicts between the interests of the class representatives, as former members of the women's varsity lacrosse team, and current and future female students at Fresno State who were not members of the women's varsity lacrosse team and who are not able and ready to play lacrosse. Similarly, the record plainly indicates that the principal purpose this action is to protect (or restore) women's varsity lacrosse and that other considerations are secondary to that. Judge Ishii, therefore, denies the motion for class certification without prejudice to another motion for certification consistent with the findings in his Order. A full-text copy of the Court's Aug. 16, 2022 Order is available at https://tinyurl.com/5xwxwcvf from Leagle.com. CANE BAY: Faces Lindenberger Class Suit Over Tribal Lending Schemes ------------------------------------------------------------------- Deborah Lindenberger, individually and on behalf of all others similarly v. Cane Bay Partners VI, LLLP, et al., Case No. 3:22-cv-00427 (W.D. Wisc., Aug. 4, 2022) is a case about a scheme to make online short-term loans that carry triple-digit interest rates, often exceeding 800%, and that are illegal in many states. In recent years, online lenders have concocted various schemes to make high-interest loans over the internet while avoiding state usury laws, including the "off-shore" scheme and the "tribal" or "sovereign" lending scheme. In the so-called "off-shore model," the lender is purportedly located off-shore, such as in Belize, but in reality, the lender operates in the United States. The purpose of the off-shore model is to attempt to evade the usury laws and discourage regulators by purportedly operating outside the United States. In 2013, the Department of Justice initiated "Operation Chokepoint" which investigated banks that did business with companies that the DOJ believed to be at high-risk for fraud and money laundering. As a result of Operation Chokepoint, the off-shore model of lending significantly declined as lenders could not find banks or payment processors willing to do business with a purportedly off-shore online lending business. Since Operation Chokepoint, online lenders have transitioned to tribal lending schemes. In a tribal lending scheme, the lender affiliates with a Native American tribe to attempt to enhance the appearance of tribal ownership and insulate the scheme from federal and state law by piggy-backing on the tribe’s sovereign legal status and the tribe’s general immunity from suit under federal and state laws. Defendant Strategic Link offers to provide "turnkey" "lending solutions" to payday lenders. It claims to be powered by "TranDotCom technology," including "marketing," "underwriting," "risk management," "auto payment and support," "rehabilitation of consumer debt," "financial reporting," "legal and compliance," "portfolio management," and a "contact center." http://www.slchq.com/turnkey-solution/(last accessed June 27, 2022). Rather than complying with state lending and licensing requirements, the Defendants entered into a tribal lending scheme with the Tribe, the lawsuit says. The Defendants include Dimension Credit (Cayman), L.P., Strategic Link Consulting, LP, Esoteric Ventures, LLC, InfoTel International Ltd., M. Mark High, Ltd., Kirk Chewning, David Johnson, Kim Anderson, Jay Clark, Does 1-20, Scott Soli, Chief Executive Officer of LCO Financial Services, in their official capacity, Lee Harden, Chief Operating Officer of LCO Financial Services, in their official capacity, Anoosh Motamedi, Chief Information Officer of LCO Financial Services, in their official capacity, Trina Starr, Director of Operations of LCO Financial Services, in their official capacity, Louis Taylor, Chairperson of the LCO Tribal Governing Board, in their official capacity, Lorraine Gouge, Vice-Chairperson of the LCO Tribal Governing Board, in their official capacity, Tweed Shuman, Secretary/Treasurer of the LCO Tribal Governing Board, in their official capacity, Glenda Barber, LCO Tribal Governing Board Council Member, in their official capacity, Don Carley, LCO Tribal Governing Board Council Member, in their official capacity, Gary "Little Guy" Clause, LCO Tribal Governing Board Council Member, in their official capacity, Michelle Beaudin, and LCO Tribal Governing Board Council Member, in their official capacity.[BN] The Plaintiff is represented by: E. Michelle Drake, Esq. John G. Albanese, Esq. BERGER MONTAGUE PC 1229 Tyler Street NE, Suite 205 Minneapolis, MN 55413 Telephone: (612) 594-5999 Facsimile: (612) 584-4470 E-mail: emdrake@bm.net jalbanese@bm.net - and - Sophia Rios, Esq. BERGER MONTAGUE PC 401 B Street, Suite 2000 San Diego, CA 92101 Telephone: (858) 252-6649 Facsimile: (215) 875-4604 E-mail: srios@bm.net CAPIO PARTNERS: Vazquez Suit Removed to M.D. Florida ---------------------------------------------------- The case styled as Teresa Vazquez, individually and on behalf of all others similarly situated v. Capio Partners LLC, Case No. 2022CA001535CAAXWS was removed from the Pasco County, to the U.S. District Court for the Middle District of Florida on July 18, 2022. The District Court Clerk assigned Case No. 8:22-cv-01629-SDM-JSS to the proceeding. The lawsuit is brought over alleged violation of the Fair Debt Collection Act. Capio Partners, LLC -- https://www.capiopartners.com/ -- is a third-party debt collection agency.[BN] The Plaintiff is represented by: Jason Tenenbaum, Esq. TENENBAUM LAW GROUP, PLLC 1600 Ponce de Leon Blvd., 10th Floor Suite 10th Floor Coral Gables, FL 11530 Phone: (305) 402-9529 Fax: (516) 414-2869 Email: Jason@jtnylaw.com The Defendants are represented by: Rachel Megan Fleishman, Esq. Dayle M. Van Hoose, Esq. Michael Schuette, Esq. SESSIONS, ISRAEL & SHARTLE, LLC 3350 Buschwood Park Drive, Suite 195 Tampa, FL 33618 Phone: (813) 775-2170 Email: rfleishman@sessions.legal mschuette@sessions.legal CAPITAL PROJECTS: Has Made Unsolicited Calls, Charman Suit Claims ----------------------------------------------------------------- THANE CHARMAN, individually and on behalf of all others similarly situated, Plaintiff v. CAPITAL PROJECTS LLC; CHRISTIAN REINARTSON; and JOHN DOE, Defendants, Case No. 3:22-cv-01201-JO-MSB (S.D. Cal., Aug. 16, 2022) seeks to stop the Defendants' practice of making unsolicited calls. CAPITAL PROJECTS LLC sell residential real estate. [BN] The Plaintiff is represented by: Mark L. Javitch, Esq. JAVITCH LAW OFFICE 3 East 3rd Ave. Ste. 200 San Mateo, CA 94401 Telephone: (650) 781-8000 Facsimile: (650) 648-0705 Email: mark@javitchlawoffice.com CASEY'S GENERAL: Lewis Seeks Unpaid Overtime Pay Under FLSA ----------------------------------------------------------- BEVERLY LEWIS, individually, and on behalf of herself and others similarly situated as a class v. CASEY'S GENERAL STORES, INC., Case No. 1:22-cv-01166-JDB-jay (W.D. Tenn., Aug. 4, 2022) is a collective action for violations of the Fair Labor Standards Act brought against Casey's by Plaintiff, individually, and on behalf of other similarly situated hourly-paid employees. The Plaintiff and the putative class seek damages for unpaid overtime compensation for the three years preceding the filing of this lawsuit. The Plaintiff and the putative class were employed by the Defendant during the three years preceding the filing of this Complaint. The Defendant is a chain of convenience stores in the Midwestern and Southern United States. Casey’s operates in 16 different states and has over 40,000 employees.[BN] The Plaintiff is represented by: J. Russ Bryant, Esq. Robert E. Turner, IV, Esq. Robert E. Morelli, III, Esq. JACKSON, SHIELDS, YEISER, HOLT OWEN & BRYANT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 754-8524 E-mail: rbryant@jsyc.com rturner@jsyc.com rmorelli@jsyc.com CEDAR FAIR: Mahoney Sues Over Blind-Inaccessible Website -------------------------------------------------------- John Mahoney, on behalf of himself and all others similarly situated v. Cedar Fair, L.P., Case No. 2:22-cv-02986 (E.D. Pa., July 29, 2022), is brought against the Defendant to enforce Title III of the Americans with Disabilities Act. By failing to make its Website available in a manner compatible with computer screen reader programs, the Defendant deprives blind and visually-impaired individuals the benefits of its goods, services, facilities, privileges, advantages, or accommodation of its places of public accommodation--all benefits it affords nondisabled individuals--thereby increasing the sense of isolation and stigma among these Americans that Title III was meant to redress, says the complaint. The Plaintiff is a blind, visually-impaired handicapped person and requires screen-reading software to read website content using his computer. The Defendant owns and operates a business in the State of Pennsylvania.[BN] The Plaintiff is represented by: David S. Glanzberg, Esq. GLANZBERG TOBIA LAW, P.C. 123 South Broad Street, Suite 1640 Philadelphia, PA 19109 Phone: (215) 981-5400 Fax: (267) 319-1993 Email: david.glanzberg@gtlawpc.com CELLCO PARTNERSHIP: Corsi Files Suit in D. New Jersey ----------------------------------------------------- A class action lawsuit has been filed against Cellco Partnership, et al. The case is styled as Cintia Corsi, Karyn Challender, Angela Green, Karen Hudson, Jerry Hunt, on behalf of themselves and all others similarly situated v. Cellco Partnership, Verizon Communications, Inc., Case No. 3:22-cv-04621-ZNQ-RLS (D.N.J., July 18, 2022). The nature of suit is stated as Other Fraud. Cellco Partnership, doing business as Verizon Wireless -- https://www.verizon.com/ -- provides wireless voice and data services.[BN] The Plaintiffs are represented by: Stephen Patrick Denittis, Esq. DENITTIS OSEFCHEN, PC 5 Greentree Centre 525 Route 73 North, Suite 410 Marlton, NJ 08053 Phone: (856) 797-9951 Fax: (856) 797-9978 Email: sdenittis@denittislaw.com CEREBRAL MEDICAL: Crossley Sues Over Unpaid Compensation -------------------------------------------------------- Kaycie Crossley, on behalf of the State of California, as a private attorney general v. CEREBRAL MEDICAL GROUP, P.A., a Professional Association; CEREBRAL MEDICAL GROUP, A PROFESSIONAL CORPORATION, a Professional Corporation; and DOES 1 through 50, inclusive, Case No. CGC-22-600627 (Cal. Super. Ct., San Francisco Cty., July 11, 2022), is brought on behalf of the Care Counselors, Therapists and other similar job titles for persons who worked for the Defendant in California and were classified as independent contractors, in order to collect the wages due them as employees of the Defendant, the cost of the employer's share of payments to the federal and state governments for income taxes, social security taxes, medicare insurance, unemployment insurance and payments for workers' compensation insurance, plus penalties and interest. The cost, as proscribed by law, of the personnel hired to work for the Defendant, includes not only the pay and overtime pay of these employees but the cost of the employer's share of tax payments to the federal and state governments for income taxes, social security taxes, medicare insurance, unemployment insurance and payments for workers' compensation insurance ("Business Related Expenses"). To avoid the payment of these legally proscribed Business-Related Expenses to the fullest extent possible, the Defendant devised a scheme to place the responsibility for the payment of these costs and expenses of the Defendant on the shoulders of the Plaintiff and other Counselors. As employer, the Defendant is legally responsible for the payment of all these Business-Related Expenses. Here, the Defendant has willfully misclassified the Plaintiff and other Care Counselors, Therapists and other similarly situated persons with similar job titles collectively referred herein as "Counselors" and further, that the Defendant has engaged in a "pattern or practice" of such violations as contemplated by the California Labor Code, says the complaint. The Plaintiff was employed by the Defendant as a Care Counselor from April of 2021 to August of 2021 and was classified by the Defendant as an independent contractor during her entire employment with the Defendant. The Defendant operates a business that connects individuals looking for mental health services on demand.[BN] The Plaintiff is represented by: Norman B. Blumenthal, Esq. Kyle R. Nordrehaug, Esq. Aparajit Bhowmik, Esq. Nicholas J. De Blouw, Esq. BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2255 Calle Clara La Jolla, CA 92037 Phone: (858)551-1223 Facsimile: (858) 551-1232 Website: www.bamlawca.com CHEMTOOL INC: Court Denies Bids to Remand Mackey & Henderson Suits ------------------------------------------------------------------ Judge Iain D. Johnston of the U.S. District Court for the Northern District of Illinois, Western Division denies the motions to remand the lawsuits entitled Stephanie Mackey, and Nick Migliore, Plaintiffs v. Chemtool Inc., and Lubrizol Corp., Defendants. Sara Henderson, Plaintiff v. Chemtool Inc., and Lubrizol Corp., Defendants, Case Nos. 3:21-cv-50283, 3:21-cv-50285 (N.D. Ill.). On June 14, 2021, an explosion and subsequent fire destroyed a chemical plant in Rockton, Illinois. Defendants Chemtool, and its parent company Lubrizol, operated the plant. Soon after, three class actions were filed against the Defendants claiming that they negligently operated the plant and caused toxic matter to be released into the air, which eventually fell on the Plaintiffs' property. The cases were originally filed in the Seventeenth Judicial Circuit Court, Winnebago County, Illinois. The first case filed was Grasley v. Chemtool Inc., No. 2021-L-0000162. That case was filed on June 17, 2021, and it remains in state court. The next day, additional plaintiffs filed Mackey v. Chemtool, Inc., 2021-L-0000165. Ten days later, still further plaintiffs filed Henderson v. Chemtool, Inc., 2021-L-0000175. Chemtool and Lubrizol then removed the Mackey and Henderson cases--which are the subject of this opinion--to this Court and asserted diversity jurisdiction under the Class Action Fairness Act (CAFA). The Plaintiffs in both federal cases have now moved the Court to remand back to the Seventeenth Judicial Circuit. Because the motions in both cases present the same narrow question based on the very similar circumstances, the Court consolidated the motions into this single order to be filed in both cases. In these two cases, the Defendants have asserted diversity jurisdiction under the CAFA. A defendant's notice of removal need only include a short and plain statement alleging a plausible basis for removal, including that the procedural requirements were met and that the federal court has statutory and constitutional jurisdiction. This requirement tracks the federal pleading standard for claims originally filed in federal court. Judge Johnston finds that neither set of Plaintiffs takes issue with the procedural requirements of removal. Nor do they contend that the Court lacks jurisdiction. Rather, they argue that an exception to CAFA applies, preventing the Court from exercising its jurisdiction over these actions. Three exceptions exist to the CAFA's grant of federal diversity jurisdiction: (1) the discretionary home-state exception, (2) the mandatory home-state exception, and (3) the local-controversy exception. The mandatory home-state exception requires the Court to decline federal jurisdiction over cases in which more than two-thirds of the putative class members and the primary defendants are all members of the State in which the case was originally filed. Because this exception appeared the most applicable, the Court required the parties to file position papers addressing whether it applied. Based on the filings and pleadings, the Court believed that Chemtool was the primary Defendant. The Court was under the impression that Lubrizol, the only out-of-state Defendant was merely a defendant in this case through indirect theories of liability. So, under this authority, Lubrizol would merely be a deep pocket, not a "primary defendant." Indeed, the Henderson complaint plainly alleges that Lubrizol is Chemtool's parent company. Nevertheless, all parties contend that the mandatory home-state exception is inapplicable. As the Plaintiffs in both cases point out, the original complaints filed in state court allege that both Chemtool and Lubrizol operated the chemical plant. Thus, because both Defendants allegedly operated the plant, the Plaintiffs' complaints allege a plausible basis for direct liability, which places Lubrizol within the understood definition of a primary defendant. Thus, the mandatory home-state exception does not apply. The Plaintiffs instead argue that the local-controversy exception applies in this case and requires that the Court decline federal jurisdiction and remand both of these cases back to the Seventeenth Judicial Circuit. Judge Johnston notes that the local controversy exception requires federal district judges to decline to exercise jurisdiction over cases that meet certain statutorily determined indicia that the controversy is merely local. The Court is required to decline jurisdiction when certain requirements are met, including the final requirement that during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or similar persons. Judge Johnston notes that all requirements but the last are undisputedly met. Nearly all members of the putative class are citizens of Illinois. Chemtool is a citizen of the State of Illinois. It is also allegedly responsible for a significant portion of the purported harm done in this case because it operated the plant at issue, notwithstanding that Lubrizol allegedly shared those duties. No one disputes that the alleged injuries occurred in Illinois, given that the chemical plant exploded in Rockton, Illinois, and the injuries occurred in the form of allegedly toxic ash and debris falling on the putative class members' Illinois properties. The only question at issue is whether the final requirement is met. Under the plain terms of the statute, the final requirement of the local controversy exception is not met in this case, Judge Johnston holds. The Grasley class action was filed one day before Mackey and 10 days before Henderson. And the parties do not dispute that Grasley asserts "the same or similar factual allegations against any of the defendants on behalf of the same or similar persons." So, the local controversy exception does not apply, Judge Johnston points out. To avoid the clear application of the facts to the statute, the Plaintiffs initially argue that the statute does not mean what it says based on the legislative history of CAFA. But that's a nonstarter, Judge Johnston notes. Courts do not consider legislative history when the statute is unambiguous. Ignoring this fundamental principle, the Plaintiffs contend that remand will facilitate the intent of Congress and allow the three class actions to proceed in a coordinated fashion. They contend that the "no other class action" clause was intended to ensure that the local controversy exception wouldn't apply to class actions filed in multiple states, but would if filed in the same state. They further contend that a motion to consolidate the Mackey and Henderson cases was already pending in state court, that the Plaintiffs' counsel across the cases had already agreed to work in a coordinated fashion, and the Plaintiffs' counsel in Mackey and Henderson have since filed appearances in Grasley in the Seventeenth Judicial Circuit. Given these circumstances, the Plaintiffs ask the Court to consider the three cases essentially the same "quintessentially local case" and declare that no other class action was filed in the three preceding years. But this legislative purpose argument cannot prevail in the face of unambiguous text, Judge Johnston opines. Plain text trumps purpose. Nothing in the Plaintiffs' motion to remand explains how the local controversy exception's text is ambiguous, Judge Johnston states. Instead, the argument proceeds directly to the purported intent and rationale of Congress in passing the statute. But the text is not ambiguous, Judge Johnston points out. The statutory text requires that "no other class action" be filed in the preceding three years. And it is undisputed that Grasley--a class action asserting the same factual allegations against the same defendants on behalf of the same or similar persons--was filed previously in the Seventeenth Judicial Circuit. In reply, the Plaintiffs contend for the first time that the definition of "other class action" is ambiguous. They contend that an "action" is not necessarily "a case filed under only one docket, case number, or caption" (3:21-cv-50293). The Plaintiffs' contention is wrong, Judge Johnston holds. The plain language of the Federal Rules of Civil Procedure--which have existed since 1938--establishes that an action is, indeed, a case filed under one docket, case number, and caption. Federal Rules of Civil Procedure 2 and 3 prove that point. Now, in the reply brief and ignoring both the plain text of CAFA and Rules 2 and 3, the Plaintiffs note that mass actions (rather than class actions) are treated the same as class actions under the statute. Judge Johnston holds that that does not render the text ambiguous. A mass action is suit "in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact," Judge Johnston opines, citing Koral v. Boeing Co., 628 F.3d 945, 946 (7th Cir. 2011) (quoting 28 U.S.C. Section 1332(d)(11)(B)(i). The Plaintiff's argument is based on Koral v. Boeing Co., 628 F.3d 945, 946 (7th Cir. 2011). In Kolar, the Seventh Circuit addressed a situation in which district courts were presented with 29 separate suits. The Court explained that all 29 cases were unlikely to go to trial because "in aviation disaster cases, several exemplar cases are routinely tried on one occasion at which time the issue of liability is determined for the remainder of the cases." On that theory, Boeing removed to federal court and argued that the 29 cases were really just one mass action. The Seventh Circuit explained that removal was premature and that any proposition to try cases jointly as a mass action must be made "to the court in which the suits are pending." The Plaintiffs contend that Koral stands for the proposition that "lawsuits filed under different dockets and with different captions can be treated collectively as a 'class action' under CAFA if plaintiffs propose to try them jointly." Judge Johnston holds that the Plaintiffs are correct that mass actions are treated as if they were class actions for the purposes of CAFA, but that does not help them in this case. First, the Plaintiffs have presented no evidence that they proposed to try the cases jointly as a mass action in the Seventeenth Judicial Circuit, as Koral plainly requires. Indeed, the Plaintiffs made clear that the three cases are not mass actions. Second, the concept of a mass action does not render the "no other class action" language ambiguous. Grasley is without question a class action within the meaning of CAFA, and the Plaintiffs do not argue to the contrary. Nevertheless, the Plaintiffs ask the Court to hold that Grasley is not truly an "other class action." What the Plaintiffs essentially ask the Court to do is graft additional language onto an already unambiguous statutory provision, Judge Johnston notes. The Plaintiffs argue that, because Grasley was filed "one day earlier" than Mackey, considering it an "other class action" fails to enforce the clear intent of Congress. The Plaintiffs ask the Court to deem all class actions filed in close temporal proximity in the same state to be the same class action for the purposes of the statute. But the statute already defines a class action, and this grafting of an additional temporal-based exception to the definition creates a clear problem, Judge Johnston opines. Indeed, Mackey and Henderson present a prime example of why the Court cannot read such a temporal-based exception into an otherwise unambiguous textual provision. Judge Johnston points out that the Plaintiffs ask the Court to create an unwritten statutory exception not only for Mackey--which was filed one day after Grasley--but also for Henderson--which was filed 10 days after Grasley. Where does the scope of this temporal exception end? Judge Johnston asks. Is it one day, or ten, or could a case filed two months prior be considered part of the same class action? That is a question for Congress to answer. Congress is fully capable of drafting statutory text that expands the definition of a class action, or that redefines the local controversy exception. Regardless of Congress' intent, it answered the question with a bright-line rule: "no other class action." The local controversy exception does not apply, and the motions to remand are denied, Judge Johnston rules. A full-text copy of the Court's Memorandum Opinion and Order dated Aug. 11, 2022, is available at https://tinyurl.com/5n7utca5 from Leagle.com. CHICAGO HOUSING AUTHORITY: Oliver Files Suit in N.D. Illinois ------------------------------------------------------------- A class action lawsuit has been filed against Chicago Housing Authority. The case is styled as Josette Oliver, Keona Montgomery, Taryn Travis, on behalf of themselves and all others similarly situated v. Chicago Housing Authority, Case No. 1:22-cv-03786 (N.D. Ill., July 21, 2022). The nature of suit is stated as Other Civil Rights. The Chicago Housing Authority -- http://www.thecha.org/-- offers affordable rental housing opportunities.[BN] The Plaintiffs are represented by: Daniel Ray Campbell, Esq. Michael Wesley Weaver, Esq. MCDERMOTT WILL & EMERY 444 West Lake Street, Suite 4000 Chicago, IL 60606 Phone: (312) 984-2167 Email: dcampbell@mwe.com mweaver@mwe.com - and - Daniel Joshua Schneider, Esq. John Mark Bouman, Esq. Lawrence Davis Wood, Esq. LEGAL ACTION CHICAGO 120 S. LaSalle St., Suite 900 Chicago, IL 60603 Phone: (312) 423-5941 Email: dschneider@legalactionchicago.org jbouman@legalactionchicago.org lwood@legalactionchicago.org - and - Katherine Elizabeth Walz, Esq. Marcos Segura, Esq. NATIONAL HOUSING LAW PROJECT 1663 Mission Street, #460 San Francisco, CA 94103 Phone: (415) 546-7000 Email: kwalz@nhlp.org msegura@nhlp.org The Defendant is represented by: William Tobias Eveland, Esq. Elizabeth Anne Thompson, Esq. SAUL EWING ARNSTEIN & LEHR LLP 161 North Clark Street, Suite 4200 Chicago, IL 60601 Phone: (312) 876-7100 Email: toby.eveland@saul.com elizabeth.thompson@saul.com CHILDREN'S HOME: Gonzalez Files Suit in Cal. Super. Ct. ------------------------------------------------------- A class action lawsuit has been filed against Children's Home of Stockton. The case is styled as Rita Gonzalez, individually, and on behalf of other members of the general public similarly situated v. Children's Home of Stockton, a California Corporation, Case No. STK-CV-UOE-2022-0006373 (Cal. Super. Ct., San Joaquin Cty., July 25, 2022). The case type is stated as "Unlimited Civil Other Employment." The Children's Home of Stockton -- https://www.chstockton.org/ -- gives at-risk youth an opportunity for a productive life through treatment and education in a safe, nurturing environment.[BN] The Plaintiff is represented by: Edwin Aiwazian, Esq. LAWYERS FOR JUSTICE, PC 410 Arden Avenue, Suite 203 Glendale, CA 91203 Phone: 818-265-1020 Fax: 818-265-1021 CLEAN HARBORS: Bush Suit Removed to W.D. Louisiana -------------------------------------------------- The case styled as Ricky Bush, individually & on behalf of a class of similarly situated persons v. Clean Harbors Colfax LLC, Case No. 27714 was removed from the 35th Judicial District Court, Parish of Grant, to the U.S. District Court for the Western District of Louisiana on July 8, 2022. The District Court Clerk assigned Case No. 1:22-cv-02026-DDD-JPM to the proceeding. The nature of suit is stated as Other Real Property. Clean Harbors Colfax LLC -- https://www.cleanharbors.com/ -- is a waste management service in Louisiana.[BN] The Plaintiff is represented by: Jason Z Landry, Esq. Jeremy James Landry, Esq. Lawrence J Centola, III, Esq. Neil Franz Nazareth, Esq. Scott R Bickford, Esq. MARTZELL & BICKFORD 338 Lafayette St New Orleans, LA 70130 Phone: (504) 581-9065 Fax: (504) 581-7635 Email: jzl@mbfirm.com jjl@mbfirm.com lcentola@mbfirm.com nfn@mbfirm.com srb@mbfirm.com - and - Stephen John Hecker, Esq. HECKER LAW FIRM 631 St Charles Ave Ste 2F New Orleans, LA 70130 Phone: (504) 491-8599 Fax: (504) 581-3305 Email: sjheckerlaw@gmail.com - and - Thomas B Wahlder, Esq. 1740 Jackson St Alexandria, LA 71301 Phone: (318) 442-9417 Fax: (318) 442-1333 Email: twahlder@aol.com The Defendant is represented by: Robert J Burvant, Esq. Eric E Jarrell, Esq. Marie Olga Luis, Esq. Michael J Cerniglia, Esq. Patrick T Isacks, Esq. KING & JURGENS 201 St Charles Ave Ste 4500 New Orleans, LA 70170-1034 Phone: (504) 582-3800 Fax: (504) 582-1233 Email: rburvant@kingjurgens.com ejarrell@kingjurgens.com mluis@kingjurgens.com mcerniglia@kingjurgens.com pisacks@kingjurgens.com COINBASE GLOBAL: Faces Patel Securities Suit Over Common Stock Drop ------------------------------------------------------------------- VIJAY PATEL, Individually and on Behalf of All Others Similarly Situated v. COINBASE GLOBAL, INC., BRIAN ARMSTRONG, and ALESIA J. HAAS, Case No. 1:22-cv-04915 (D.N.J., Aug. 4, 2022) is a federal securities class action on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Coinbase securities between April 14, 2021 and July 26, 2022, both dates inclusive, seeking to recover damages caused by the Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Coinbase provides financial infrastructure and technology products and services for the cryptocurrency economy in the U.S. and internationally. The Company purportedly offers the primary financial account in the cryptoeconomy for retailers, a marketplace with a pool of liquidity for transacting in crypto assets for institutions, and technology and services that enable ecosystem partners to build crypto-based applications and securely accept crypto assets as payment. Throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations, and compliance policies. Specifically, the Defendants made false and/or misleading statements and/or failed to disclose that Coinbase custodially held crypto assets on behalf of its customers, which assets Coinbase knew or recklessly disregarded could qualify as the property of a bankruptcy estate, making those assets potentially subject to bankruptcy proceedings in which Coinbase's customers would be treated as the Company's general unsecured creditors, says the suit. On May 10, 2022, in its quarterly report for the first quarter of 2022, released after the markets closed, Coinbase disclosed that: "Because custodially held crypto assets may be considered to be the property of a bankruptcy estate, in the event of a bankruptcy, the crypto assets we hold in custody on behalf of our customers could be subject to bankruptcy proceedings and such customers could be treated as our general unsecured creditors." Following this disclosure, the price of Coinbase's Class A common stock fell $19.27 per share, or 26.4%, to close at $53.72 per share on May 11, 2022. In a subsequent tweet commenting on the disclosure, Coinbase's Chief Executive Officer, Defendant Brian Armstrong, stated: "We should have updated our retail terms sooner, and we didn't communicate proactively when this risk disclosure was added. My deepest apologies, and a good learning moment for us as we make future changes." On May 12, 2022, Professor Adam J. Levitin, a professor of law, at Georgetown University Law Center, published a draft of an article entitled "Not Your Keys, Not Your Coins: Unpriced Credit Risk in Cryptocurrency," set to appear in the Texas Law Review, which argues that in the event a cryptocurrency exchange files for bankruptcy, bankruptcy courts are likely to deem custodial holdings of cryptocurrencies to be property of the bankrupt exchange, rather than the property of its customers. Then, on July 25, 2022, after the markets closed, Bloomberg reported that Coinbase is facing an SEC probe into whether it improperly let Americans trade digital assets that should have been registered as securities. On this news, the price of Coinbase's Class A common stock fell $14.14 per share, or 21.08%, to close at $52.93 per share on July 26, 2022, the suit alleges. As a result of the Defendants' alleged wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages. The Plaintiff acquired Coinbase securities at artificially inflated prices during the Class Period and was damaged upon the revelation of the alleged corrective disclosures. [BN] The Plaintiff is represented by: Thomas H. Przybylowski, Esq. Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (917) 463-1044 E-mail: tprzybylowski@pomlaw.com tprzybylowski@pomlaw.com jalieberman@pomlaw.com ahood@pomlaw.com - and - Joshua E. Fruchter, Esq. WOHL & FRUCHTER LLP 25 Robert Pitt Drive, Suite 209G Monsey, NY 10952 Telephone: (845) 290-6818 Facsimile: (718) 504-3773 E-mail: jfruchter@wohlfruchter.com COMSTAR LLC: Basinas Files Suit in D. Massachusetts --------------------------------------------------- A class action lawsuit has been filed against Comstar, LLC. The case is styled as Andrew Basinas, on behalf of himself and all others similarly situated v. Comstar, LLC, Case No. 1:22-cv-11122-RWZ (D. Mass., July 12, 2022). The nature of suit is stated as Other P.I. for Personal Injury. Comstar LLC -- https://comstar.biz/ -- provides mobile-friendly web design, website development, internet marketing, and hosting services.[BN] The Plaintiff is represented by: Kurt J. Hagstrom, Esq. HAGSTROM LAW GROUP 66 North Second Street New Bedford, MA 02740 Phone: (774) 202-5510 Email: Kurt@hagstromlawgroup.com CONTRACT LAND: Weinmann Suit Seeks Unpaid OT Wages Under FLSA ------------------------------------------------------------- GAYL WEINMANN, individually and for Others similarly situated v. CONTRACT LAND STAFF, LLC, Case No. 2:22-cv-01140-DSC (W.D. Pa., Aug. 4, 2022) seeks to recover unpaid overtime wages and other damages from CLS individually and on behalf of all others similarly situated under the under the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act, and the Illinois Minimum Wage Law. Plaintiff Weinmann worked for Defendant under a variety of job titles, including Right of Way Agent. Weinmann and the Class Members regularly worked more than 40 hours a week. But the Class Members never received overtime for hours worked in excess of 40 hours in a single workweek. Instead of receiving overtime as required by the FLSA, PMWA, and the IMWL, these workers received a flat amount for each day worked (a day rate) without overtime compensation, the lawsuit alleges. The Plaintiff and the Class Members never received a guaranteed salary while receiving a day rate. This class and collective action seeks to recover the unpaid overtime wages and other damages owed to these workers, added the suit.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Taylor S. Montgomery, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com tmontgomery@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com - and - Joshua P. Geist, Esq. GOODRICH & GEIST, P.C. 3634 California Avenue Pittsburgh, PA 15212 Telephone: (412) 766-1455 Facsimile: (412) 766-0300 E-mail: josh@goodrichandgeist.com DALLAS JONES: Court Denies Bids to Dismiss 3rd Amended McClurg Suit ------------------------------------------------------------------- In the case, JOHNNY MCCLURG, Plaintiff v. DALLAS JONES ENTERPRISES INC. d/b/a Clay's Trucking, et al., Defendants, Civil Action No. 4:20-CV-00201-JHM (W.D. Ky.), Judge Joseph H. McKinley, Jr., of the U.S. District Court for the Western District of Kentucky, Owensboro Division, denies the Motions to Dismiss the Third Amended Complaint by Defendants Dana Porter, Brock Porter, and Dallas Jones. Plaintiff McClurg is employed by Dallas Jones Enterprises. Throughout his employment, McClurg alleges that it paid him on a "per-ton basis" -- a flat fee for every ton of coal transported. But he would sometimes work more than 40 hours in a week, and it did not increase his fee on those deliveries. Believing he was entitled to overtime when he worked more than forty hours in a week, McClurg sued asserting two causes of action against Dallas Jones Enterprises: a federal claim for unpaid overtime under the Fair Labor Standards Act and a state law claim under the Kentucky Wage and Hour Act. In February of 2022, McClurg moved for leave to file a third amended complaint. The third amended complaint added allegations against new individual Defendants Dana Porter, Brock Porter, and Dallas Jones who own and control the company, as well as specifically referencing and attaching MCS-150 forms and adding allegations related to the failure of Dallas Jones Enterprises to correct its previously submitted Form MCS-150. Dallas Jones Enterprises did not oppose the motion, and it was granted. Prior to filing his third amended complaint, McClurg moved to conditionally certify a collective of truck drivers who worked for Dallas Jones Enterprises and were subject to the Fair Labor Standards Act. On Dec. 3, 2021, the Court granted McClurg's motion to conditionally certify the class of "all persons who were employed as a truck driver by Dallas Jones Enterprises, Inc. (which has done business as 'Clay's Trucking') and were not paid overtime compensation for work performed in excess of 40 hours in one or more workweeks [within the three years preceding this notice] (including both current and former employees)." The Court modified both the proposed notice and proposed consent form, and McClurg sent them to the potential collective members pursuant to the order of the Court. The newly added individual Defendants Dana Porter, Brock Porter, and Dallas Jones ("the individual Defendants") have moved to dismiss the third amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The individual Defendants move to dismiss the third amended complaint arguing that it fails to state a claim upon which relief can be granted because the FLSA claims against these individual Defendants were included in the third amended complaint after the Court's grant of conditional certification. Specifically, they complain that they were not afforded the opportunity to be heard on the certification motion and that it was procedurally improper to bring in these individual Defendants after the conditional certification had been granted because there were no findings relating to the conditional certification as to these individual Defendants. Further, they contend that questions would exist as to what exact case and against which defendants any potential or prospective plaintiff is being asked to "opt-in" against, as these individual Defendants were only recently added as named defendants. Accordingly, they argue that McClurg has failed to state a claim upon which relief can be granted. In response, McClurg argues that the motions to dismiss should be denied for three reasons: (1) the Court's conditional certification ruling did not have the consequence of preventing the three individuals from becoming defendants in this case or impose procedural barriers on McClurg amending his complaint; (2) it is entirely appropriate for the representative plaintiff in a FLSA to seek leave to amend to assert new claims against new defendants, including seeking leave to do so on behalf of the opt-in plaintiffs who have already joined the action, Prickett v. DeKalb Cty., 349 F.3d 1294, 1297 (11th Cir. 2003); and (3) alternatively, if the Court disagrees, McClurg's own claims can proceed against the individual Defendants and opt-in plaintiffs should be permitted to supplement their consents to proceed with respect to the claims against the individual Defendants. Judge McKinley finds that the third amended complaint states a FLSA claim against the individual Defendants under the Rule 12(b)(6) standard. McClurg alleges that the individual defendants are the corporate officers, had operational control over significant aspects of the corporation's day-to-day functions, and were McClurg's employer. The individual Defendants do not argue otherwise. Ultimately, the questions raised by the individual Defendants' motions are whether McClurg and the opt-in plaintiffs may amend the complaint to add additional defendants once the action has been conditionally certified and, if so, procedurally whether the Court must make a separate FLSA finding with respect to McClurg and the opt-in plaintiffs' claims against the individual Defendants. Judge McKinley holds that the Plaintiffs may amend a complaint to add additional defendants once an FLSA action has been conditionally certified. Neither the Court nor the parties have tendered any statutory or case law prohibiting such amendment after the grant of conditional certification in an FLSA action. In fact, courts have granted amendments under similar circumstances. In the case, the collective class has been defined, the class has been certified, a motion to amend the complaint to add individual defendants was granted, and the individual defendants are alleged to have operational control over the original corporate defendant. Judge McKinley holds that the addition of the individual corporate defendants does not alter the Court's grant of conditional certification -- the Plaintiffs were employed by Dallas Jones Enterprises, worked in excess of 40 hours a week some occasions, were paid on a percentage-of-load basis, and were not paid overtime wages. Additionally, the objections to conditional certification raised by Dallas Jones Enterprises were expansive incorporating the same arguments as other joint employers. Furthermore, Judge McKinley rejects the argument that new opt-in forms are required because of the amendment of the complaint after the conditional certification. Under 29 U.S.C. Section 216(b), an employee becomes a 'party plaintiff' to a FLSA action by giving 'consent in writing' and filing 'such consent in the court in which such action is brought.' Once employees opt in to a FLSA collective action, "these plaintiffs become 'party plaintiffs,' enjoying 'the same status in relation to the claims of the lawsuit as do the named plaintiffs.'" "Congressional intent would not be advanced by a requirement that new consents to join be submitted by opt-in plaintiffs, who may sometimes number in the hundreds, in order for them to remain as full-fledged plaintiffs" when amendments to the complaint are made. For these reasons, Judge McKinley denies the Motions to Dismiss. A full-text copy of the Court's Aug. 12, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/yuccbz28 from Leagle.com. DALTON POWER: Scheduling Order Entered in Bird Class Action ------------------------------------------------------------ In the class action lawsuit captioned as DANIEL BIRD v. DALTON POWER GROUP, INC., Case No. 2:22-cv-01270-JDW (E.D. Pa.), the Court entered a scheduling order as follows: 1. All motions to amend the Complaint August 19, 2022 and to join or add additional parties shall be filed on or before: 2. Affirmative expert reports, if any, November 4, 2022 are due by: 3. Rebuttal expert reports, if any, December 2, 2022 are due by: 4. The Parties shall complete all December 23, 2022 discovery by: 5. Motions for class certification, January 13, 2023 if any, shall be filed by: A copy of the Court's order dated Aug. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3QNVK4K at no extra charge.[CC] DIRECT ENERGY: Isabella Geriatric Files Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Direct Energy Business, LLC. The case is styled as Isabella Geriatric Center, Inc., individually and on behalf of all others similarly situated v. Direct Energy Business, LLC, Case No. 1:22-cv-05822-AKH (S.D.N.Y., July 8, 2022). The nature of suit is stated as Other Contract for Contract Dispute. Direct Energy Business -- https://business.directenergy.com/ -- is a full-service electricity and natural gas provider, offering premier customer service to support your business.[BN] The Plaintiff is represented by: James DeMay, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 900 W. Morgan Street Raleigh, NC 27603 Phone: (704) 941-4648 Fax: (919) 600-5035 Email: jdemay@milberg.com - and - Victoria Jennings Maniatis, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 100 Garden City Plaza, Ste. 500 Garden City, NY 11530 Phone: (866) 252-0878 Fax: (212) 868-1229 Email: vmaniatis@milberg.com EDUCATIONAL CREDIT: July 18 Amended Pretrial Sched Order Modified ----------------------------------------------------------------- In the class action lawsuit captioned as SHEILA KINCAID, individually, and on behalf of other members of the general public similarly situated, v. EDUCATIONAL CREDIT MANAGEMENT CORPORATION, an unknown business entity; ECMC GROUP, an unknown business entity; and DOES 1 100, inclusive, Case No. 2:21-cv-00863-TLN-JDP (E.D. Cal.), the Hon. Judge Troy L. Nunley entered an order that the Court's July 18, 2022 Amended Pretrial Scheduling Order shall be modified to reflect the following deadlines: 1. The deadline for the Defendants to file their opposition to Plaintiff’s motion for class certification shall be 30 days after service of the motion. 2. The deadline for Plaintiff to file her reply in support of her motion for class certification shall be 21 days after service of Defendants' opposition. 3. The deadline for taking the depositions of any person submitting a declaration in support of or opposition to the Plaintiff's motion for class certification shall be the same as the deadline for plaintiff to file her reply. Educational Credit is a nonprofit corporation based in Minnesota. Since 1994, ECMC has operated in the areas of student loan bankruptcy management and loan collection. A copy of the Court's order dated Aug. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3zXuYzH at no extra charge.[CC] The Plaintiff is represented by: Edwin Aiwazian, Esq. Arby Aiwazian, Esq. Tara Zabehi, Esq. LAWYERS FOR JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265-1020 Facsimile: (818) 265-1021 E-mail: edwin@calljustice.com arby@calljustice.com tara@calljustice.com The Defendant is represented by: Carla J. Hartley, Esq. Cynthia C. Cheung, Esq. DILLINGHAM & MURPHY, LLP 155 Sansome Street, Suite 700 San Francisco, CA 94104 Telephone: (415) 397-2700 Facsimile: (415) 397-3300 E-mail: cjh@dillinghammurphy.com ccc@dillinghammurphy.com EMPRESAS BERRIOS: Court Grants Trinidad Leave to Amend Complaint ---------------------------------------------------------------- In the case, IN RE: CLARISEL FELICIANO TRINIDAD, Chapter 13 Debtor. CLARISEL FELICIANO TRINIDAD Plaintiff v. EMPRESAS BERRIOS, INC., Defendant, Case No. 21-03022 (ESL), Adv. Proc. 22-00002 (D.P.R.), Judge Enrique S. Lamoutte of the U.S. Bankruptcy Court for the District of Puerto Rico denies the Defendant's motion to dismiss and grants the Plaintiff's motion for leave to amend the complaint. The instant adversary proceeding is before the Court upon the motion to dismiss, as amended, filed by Berrios, the Plaintiff's oppositions to the motion to dismiss, her motion for leave to file an amended complaint, and Berrios' opposition to her request to amend complaint. The case came before the Court on June 17, 2022, for a preliminary pretrial on the complaint filed by the Debtor/Plaintiff on Jan. 19, 2022, alleging that actions by Berrios to collect a debt discharged in a prior bankruptcy case constituted a violation of the discharge injunction pursuant to 11 U.S.C. Section 524. The parties were granted 14 days to file a settlement agreement and, if no agreement was reached, then the pending matters referred to above would be deemed submitted. They have not reached an agreement. Thus, Judge Lamoutte proceeds to address the Defendant's motion to dismiss and the Plaintiff's motion for leave to amend the complaint. Berrios moved to dismiss the complaint on March 28, 2022, and amended the request for dismissal on June 1, 2022. On May 11, 2022, the Plaintiff filed an opposition to the motion to dismiss, and on May 12, 2022, filed an amended motion for leave to file an amended complaint to add a class action pursuant to Fed. R. Civ. P. 23. On June 9, 2022, Berrios filed an opposition to the motion for leave to amend the complaint. To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter that, accepted as true, "states a claim to relief that is plausible on its face." Allegations in a complaint cannot be speculative and must cross "the line between the conclusory and the factual." "An adequate complaint must provide fair notice to the defendants and state a facially plausible legal claim." The Court in Hotel Airport, Inc. v. Best W. Int'l Inc., Nos. 11-2014 Bankr. LEXIS 3990, at *51-54 (Bankr. D.P.R. Sep. 18, 2014) held that it would not dismiss an adversary proceeding based solely on procedural grounds alone because that would elevate form over substance and increase the cost of litigation without benefitting either party. To dismiss on procedural grounds alone would be to elevate form over substance. This is particularly true wherean adversary proceeding provides more procedural protection for the defendant than does a contested matter brought by way of motion. Therefore, Berrios' Motion to Dismiss fails the Rule 12(b)(6) standard. As noted by the Plaintiff, the Court has already determined in In re Hotel Airport, Inc., that violations of a discharge order may be brought through an adversary proceeding, which is the Defendant's principal argument seeking dismissal. The Debtor/Plaintiff moves the Court to file an amended complaint pursuant to Fed. R. Civ. P. 15, made applicable to Bankruptcy Proceedings by Fed. R. Bankr. P. 7015, to add a class action under Fed. R. Civ. P. 23, made applicable to Bankruptcy Proceedings by Fed. R. Bankr. P. 23, because in its motion to dismiss "the Defendant alleges that its practice of continuing to collect discharged debts is part of the 'guidelines Berrios had established.'" Defendant Berrios opposes the request alleging that the Court must first decide the motion to dismiss and that the proposed class action does not meet the requirements of Rule 23 for class certification. After considering the reasons and the timing leading the Plaintiff to file a request for leave to amend the complaint to add a class action, that is, the statements in the initial motion to dismiss filed by Berrios regarding its practice and guidelines, Judge Lamoutte finds no improper purpose for the request. Therefore, he grants the Plaintiff's request for leave to amend the complaint. Notwithstanding, he is conscious of the decision in In re Golden, 630 B.R. 896 (Bankr. E.D. N.Y. 2021), and intends to follow his analysis regarding motions to strike class action allegations and class action certifications. The granting of leave to file the amended complaint to add a class action does not mean that the allegations cannot be questioned and that the class certification may be opposed. The Court may award damages resulting from a willful violation of the discharge injunction. However, the award of damages for violation of the discharge injunction, as in the case of a violation of the automatic stay, must be founded on concrete, nonspeculative evidence and cannot be based on mere speculation, guess or conjecture. A damage award for emotional distress is generally nominal when the behavior is associated with transmission of collection correspondence. Subjective feelings are not per se sufficient. The emotional harm must be significant. "Fleeting or trivial anxiety or distress is not sufficient." Generally, the application of the American Rule calls for each party to bear their own litigation costs. There are exceptions to the American Rule in fee shifting statutes and for the willful violation of court orders. However, there is no statutory provision for the award of attorney's fees for a violation of the discharge injunction under 11 U.S.C. Section 524. Such an award is subject to the Court's discretion. The Debtors have a duty to mitigate damages when faced with violations of the discharge injunction, and must establish that any attorney fees requested are reasonable. In view of the foregoing, Judge Lamoutte denies the motion to dismiss, as amended, and grants the Plaintiff's motion to amend the complaint. The parties are granted 60 days to conclude discovery. A pretrial on the amended complaint is scheduled for Dec. 9, 2022, at 10:00 a.m. A full-text copy of the Court's Aug. 12, 2022 Opinion & Order is available at https://tinyurl.com/2pmpnvc8 from Leagle.com. EPIC SPORTS: Faces Montero Suit over Telephonic Sales Calls ----------------------------------------------------------- NIKO MONTERO, individually and on behalf of all others similarly situated v. EPIC SPORTS, INC., Case No. 1:22-cv-22464-BB (S.D. Fla., Aug. 4, 2022) Contends that the Defendant promotes and markets its merchandise, in part, by sending unsolicited text messages to wireless phone users, in violation of the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act. The Defendant is a sporting goods retailer. To promote its goods and services, Defendant engages in aggressive telephonic sales calls to consumers without having secured prior express written consent as required under the FTSA and with no regard to consumer rights under the TCPA, says the suit. The Plaintiff seeks an injunction and statutory damages on behalf of herself and the Class members, as defined below, and any other available legal or equitable remedies resulting from the unlawful actions of Defendant.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett Berg, Esq. SHAMIS & GENTILE P.A. 14 NE 1st Ave., Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. Christopher Gold, Esq. EDELSBERG LAW, P.A. 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Telephone: (786) 289-9471 Facsimile: (786) 623-0915 E-mail: scott@edelsberglaw.com chris@edelsberglaw.com FFE TRANSPORTATION: Cronon Files Suit in Cal. Super. Ct. -------------------------------------------------------- A class action lawsuit has been filed against FFE Transportation Services, Inc. The case is styled as Dylon W. Cronon, individually and on behalf of all others similarly situated v. FFE Transportation Services, Inc. dba Frozen Food Express, a Delaware Corporation, Case No. STK-CV-UOE-2022-0006572 (Cal. Super. Ct., San Joaquin Cty., July 29, 2022). The case type is stated as "Unlimited Civil Other Employment." FFE -- https://www.ffeinc.com/ -- is the largest nationwide asset-based temperature-controlled LTL transportation & warehousing provider.[BN] FOOD PYRAMID: Fails to Pay Proper Wages, Vera Suit Alleges ---------------------------------------------------------- SEGUNDO EUDORO LAZO VERA, individually and on behalf of all others similarly situated, Plaintiff v. THE FOOD PYRAMID CORP.; and MARTIN BASCH, Defendants, Case No. 1:22-cv-04860 (E.D.N.Y., Aug. 17, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Vera was employed by the Defendants as delivery worker. THE FOOD PYRAMID CORP. is a New York domestic business corporation, organized under the laws of the State of New York. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. Helen F. Dalton & Associates, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 FORD MOTOR: Pacheco Sues Over Sale of Defective Motor Engines ------------------------------------------------------------- ANTHONY PACHECO, individually and on behalf of all others similarly situated, Plaintiff v. FORD MOTOR COMPANY, Defendant, Case 2:22-cv-11927-GCS-DRG ECF (E.D. Mich., Aug. 17, 2022) alleges violation of the Magnuson-Moss Warranty, California Unfair Competition Law, California False Advertising Law, and Song-Beverly Consumer Warranty Act. According to the complaint, the Defendant failed to provide consumers with a safe car, and promptly warn consumers and fix or replace a car where the manufacturer learns of a defect that implicates serious safety issues. The Defendant manufactures and sells Ford Escapes, Ford Mavericks, and Lincoln Corsairs that were dangerously defective and prone to catching fire while in operation. Then, though Ford knew or should have known of the fire risk prior to launching the vehicles, it did nothing to promptly warn owners and lessees, instead waiting over a year to announce a safety recall. And while Ford now is implementing a "fix" to prevent these vehicles from catching on fire, it has chosen not to design or issue a bona fide fix that addresses the leaking engine blocks, but rather to maintain the risk of engine block leaks while only mitigating the risk that engine fluids and vapors will ignite, says the suit. Ford Motor Company designs, manufactures, and services cars and trucks. The Company also provides vehicle-related financing, leasing, and insurance through its subsidiary. [BN] The Plaintiff is represented by: Steve W. Berman, Esq. Thomas E. Loeser, Esq. Abigail D. Pershing, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 Email: steve@hbsslaw.com toml@hbsslaw.com - and - E. Powell Miller, Esq. Sharon S. Almonrode Dennis A. Lienhardt (P81118) THE MILLER LAW FIRM PC 950 W. University Drive, Suite 300 Rochester, MI 48307 Telephone: (248) 841-2200 Email: epm@millerlawpc.com ssa@millerlawpc.com dal@millerlawpc.com FRANK'S PAINTING: Lopez Seeks Unpaid Overtime Under FLSA, NYLL -------------------------------------------------------------- SERGIO LOPEZ, individually and on behalf of all others similarly situated v. FRANK'S PAINTING OF LI, LLC, FRANCO OLIVARIO, individually and in his official capacity, and any other related persons and/or entities, Case No. 2:22-cv-04541 (E.D.N.Y., Aug. 2, 2022) seeks to recover unpaid overtime which the Defendants failed to pay in violation of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff's claims under the FLSA are brought as a collective action, pursuant to 29 U.S.C. section 216(b), on behalf of himself and on behalf of all other similarly situated persons who were/are employed by the Defendants as painters, laborers, and other similar non-exempt positions, who were/are not paid overtime at a rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 hours per workweek for the period of three years prior to the date of the filing of this complaint to the date of the final disposition of this action. The Plaintiff worked as a painter and laborer for the Defendants from 2010 through December 2021. The Plaintiff regularly worked over 40 hours per week, typically around 56 hours per week, throughout his employment. Frank's painting of LI, LLC is a specialty contractor that serves the Levittown, New York area and specializes in finishes.[BN] The Plaintiff is represented by: Laura R. Reznick, Esq. BELL LAW GROUP, PLLC 116 Jackson Ave. Syosset, NY 11791 Telephone: (516) 280-3008 E-mail: lr@belllg.com FRANKLIN WIRELESS: Reschedule of Class Cert. Hearing Sought ----------------------------------------------------------- In the class action lawsuit captioned as MOHAMMED USMAN ALI, Individually and on Behalf of All Others Similarly Situated, v. FRANKLIN WIRELESS CORP., et al., Case No. 3:21-cv-00687-AJB-MSB (S.D. Cal.), the Parties ask the Court to enter an order rescheduling the hearing on Lead Plaintiff's motion for class certification for a later date at the Court's convenience. Franklin Wireless is engaged in the design, manufacture and sale of broadband wireless data communication products. A copy of the Parties' motion dated Aug. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3SZH2cw at no extra charge.[CC] The Lead Counsel for the Class is represented by: Jennifer Pafiti, Esq. Jeremy A. Lieberman, Esq. Austin P. Van, Esq. POMERANTZ LLP 1100 Glendon Avenue, 15th Floor Los Angeles, CA 90024 Telephone: (310) 405-7190 E-mail: jpafiti@pomlaw.com jalieberman@pomlaw.com avan@pomlaw.com - and - Lesley F. Portnoy, Esq. THE PORTNOY LAW FIRM 1800 Century Park East, Suite 600 Los Angeles, CA 90067 Tel: (310) 692-8883 Facsimile: (212) 697-7296 E-mail: lesley@portnoylaw.com The Counsel for the Defendants, are: Stephen M. Lobbin, Esq. SML AVVOCATI P.C. POMERANTZ LLP 888 Prospect Street, Suite 200 La Jolla, CA 92037 Telephone: (949) 636-1391 E-mail: sml@smlavvocati.com FRONTWAVE CREDIT: Ward-Howie Wins Bid to Remand Suit to State Court ------------------------------------------------------------------- Judge Cathy Ann Bencivengo of the U.S. District Court for the Southern District of California grants the Plaintiff's motion to remand to state court the lawsuit titled ELAINE WARD-HOWIE, on behalf of herself and all others similarly situated, Plaintiff v. FRONTWAVE CREDIT UNION, Defendant, Case No. 22-CV-890-CAB-JLB (S.D. Cal.). Plaintiff Ward-Howie filed the putative class action lawsuit in the Superior Court of the State of California for the County of San Diego on April 29, 2022. On June 17, 2022, Defendant Frontwave removed the action to this Court on the grounds that subject matter jurisdiction exists under the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section 1332(d). Ten days later, Frontwave filed a motion to dismiss for failure to state a claim, and ten days after that, Plaintiff filed a motion to remand on the grounds that Frontwave had not satisfied its burden to establish that the amount in controversy exceeds CAFA's jurisdictional threshold. Separately, the Court ordered the parties to show cause why the case should not be remanded for lack of diversity or under CAFA's local controversy exception. For the reasons set forth in this Order, the Plaintiff's motion to remand is granted, rendering it unnecessary to decide whether the local controversy exception also requires or permits remand. The Plaintiff, who has a checking account with Frontwave, alleges in the complaint that in certain circumstances, Frontwave charges overdraft fees in violation of the account agreement. Specifically, the complaint alleges that Frontwave charges an overdraft fee for transactions made with a debit card at a time when sufficient funds were available in the account because in the time between when the debit card transaction is made and when it settles, an intervening transaction on the checking account reduces the amount of funds to less than the amount of the prior debit card transaction. The complaint calls these transactions "Authorize Positive, Purportedly Settle Negative Transactions" or "APPSN Transactions." The complaint asserts claims for breach of contract and violation of California's unfair competition law, California Business and Professions Code ("UCL"), arising out of the overdraft fees charged for these APPSN Transactions. The Plaintiff seeks certification of a class consisting of all Frontwave checking accountholders, who were charged overdraft fees on APPSN Transactions during the applicable statute of limitations. The complaint prays for relief in the form of restitution of the allegedly wrongful overdraft fees, disgorgement of ill-gotten gains, actual, statutory, punitive and exemplary damages, as permitted by law, and attorney's fees. Notably, Judge Bencivengo observes, notwithstanding extensive argument by both sides concerning the valuation of injunctive relief as part of the amount in controversy for CAFA jurisdiction, the complaint does not seek injunctive relief. The words "enjoin," "injunction" or "injunctive" do not appear in the complaint. Although the complaint is silent as to the amount of damages sought by the putative plaintiff class, Frontwave contends in its notice of removal that over $5 million is in controversy. Frontwave's estimate of the amount in controversy has four categories: (1) the amount of APPSN fees it had charged during the class period as of the date the complaint was filed; (2) the amount of APPSN fees it purportedly intends to continue charging through class certification in this case; (3) future APPSN fees for the next four years; and (4) attorney's fees. For the first category, the notice of removal alleges that Frontwave's AAPSN overdraft fee revenue for the four years preceding the filing of the complaint "could be $2.27 million." For the second category, Frontwave estimates that if a class is not certified until a year from now, that could mean an additional approximately $500,000 in damages. For the third category, in seeming disregard of the complaint itself, Frontwave contends that the complaint seeks injunctive relief preventing Frontwave from charging AAPSN fees in the future and claims that the cost of this injunction would be the value of such fees for the next four years, which Frontwave estimates to be $2.77 million. Finally, Frontwave contends that the amount of the Plaintiff's potential attorney's fees through trial should be included in the calculation and argues that such fees will be at least $1 million. In her motion to remand, the Plaintiff disputes Frontwave's allegations as to the amount in controversy and argues that Frontwave's estimates are speculative, not supported by any evidence, and implausible. The majority of Frontwave's opposition, meanwhile, focuses on whether the Plaintiff is making a facial or a factual attack on Frontwave's jurisdictional allegations, arguing that she is making only a facial attack, and that Frontwave need not provide any evidence to support its allegations concerning the amount in controversy. Although the Court finds that the Plaintiff is challenging the truth of the Defendant's jurisdictional allegations by making a reasoned argument as to why any assumptions on which they are based are not supported by evidence, her motion to remand succeeds regardless of whether it is deemed a facial or factual attack. Specifically, assuming the truth of Frontwave's calculations, Judge Bencivengo finds they are insufficient to invoke federal jurisdiction because they include the valuation of an injunction prohibiting Frontwave from charging overdraft fees for APPSN Transactions. As stated, the complaint does not ask for such an injunction, nor indeed any injunctive relief. Frontwave appears to rely on the complaint's prayer for a declaration that Frontwave's assessment of overdraft fees on APPSN Transactions is a breach of contract and unfair, fraudulent, and unlawful, for its argument about the existence of injunctive relief. Frontwave argues that the only way for it to comply with that kind of judicial declaration would be to stop charging APPSN fees. The Court is not persuaded. In other words, Judge Bencivengo opines, the Plaintiff does not, and by its own admission, cannot, seek to enjoin Frontwave from charging overdraft fees for APPSN Transactions. Although the outcome of this case might lead Frontwave to make the business decision to change its current procedures for assessing overdraft fees on APPSN Transactions going forward or to amend its contracts to avoid future lawsuits like this one, the complaint does not seek any injunctive relief that would require Frontwave to make any changes to its disclosures or to cease assessing overdraft fees on APPSN Transactions. In sum, Frontwave alleges that it would cost Frontwave $2.77 million in foregone future overdraft fees for APPSN Transactions if the Court enters an injunction prohibiting the recovery of such fees. The complaint, however, does not seek such an injunction. Accordingly, the $2.77 million in future overdraft fees that such an injunction might cost Frontwave is not in controversy in this case. Without this $2.77 million attributable to injunctive relief that is not sought in this case, Frontwave's calculation of the amount in controversy consists of (1) $2.27 million for past overdraft fees on APPSN Transactions as of the date the complaints was filed; (2) $500,000 for overdraft fees Frontwave expects to assess on APPSN Transactions up to the date of class certification; and (3) at least $1 million in attorney's fees. Assuming that these allegations are plausible and based on reasonable assumptions, and even doubling the amount of attorney's fees estimated by Frontwave, the total does not exceed $5 million. Because Frontwave's estimate of the amount in controversy based on the relief actually sought by the Plaintiff class in this case does not exceed $5 million, Frontwave's allegations are insufficient on their face to establish federal jurisdiction, Judge Bencivengo holds. For these reasons, Judge Bencivengo grants the Plaintiff's motion to remand, and the case is remanded to the Superior Court of the State of California for the County of San Diego. A full-text copy of the Court's Order dated Aug. 11, 2022, is available at https://tinyurl.com/4h25wsrm from Leagle.com. FULL SPECTRUM: Parties File Conditional Class Certification Bid --------------------------------------------------------------- In the class action lawsuit captioned as HAYLEY CROZIER, individually and on behalf of all other similarly situated individuals, v. FULL SPECTRUM PEDIATRIC THERAPY, INC. and LANA K. BROOME, Case No. 3:22-cv-00106 (M.D.Tenn.), the Parties jointly move the Court for an order conditionally certifying a class of individuals and authorizing the notice and consent forms to be sent to these individuals in accordance with Section 16(b) of the Fair Labor Standards Act (FLSA). On February 16, 2022, the Plaintiff Crozier initiated this action by filing a Collective Action Complaint under the FLSA seeking unpaid minimum and overtime wages and liquidated damages for hourly employees employed by one or more of the Defendants. Since the filing of the initial Collective Action Complaint, the Parties have come to a mutually agreeable method of dissemination and form of notice in an effort to compromise to avoid the need for a Court determination. Full Spectrum is a medicare certified physical therapy, speech pathology, and/or occupational therapy provider. A copy of the Parties' motion dated Aug. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3Tcupel at no extra charge.[CC] The Plaintiff is represented by: Curt M. Masker, Esq. THE MASKER FIRM 810 Dominican Drive, Suite 314 Nashville, TN 37228 Telephone: (615) 823-1737 E-mail: curt@maskerfirm.com The Defendants are represented by: Suzanne G. Marsh, Esq. BATSON NOLAN PLC 121 S. Third Street Clarksville, TN 37040 Telephone: (931) 647-1501 E-mail: sgmarsh@batsonnolan.com GINNY'S INC: Bids for Summary Judgment, Class Status Due Dec. 15 ---------------------------------------------------------------- In the class action lawsuit captioned as Loadholt v. Ginny's, Inc., Case No. 1:22-cv-03980 (S.D.N.Y.), the Hon. Judge Lewis J. Liman entered an order that any motions for summary judgment or class certification are due by December 15, 2022. Third-party discovery is stayed pending application to the Court by Plaintiff. The suit alleges violation of the The Americans with Disabilities Act of 1990 (ADA). Ginny's, Inc. specializes in kitchen, bedding, and bath merchandise.[CC] GMRI INC: Rafferty Files Suit Over Failure to Pay Minimum Wages --------------------------------------------------------------- RACQUEL RAFFERTY, on behalf of herself and all others similarly situated, Plaintiff v. GMRI, INC., and DARDEN RESTAURANTS, INC., Defendants, Case No. 2:22-cv-00342-RAJ-LRL (E.D. Va., August 16, 2022) is a collective action complaint brought against the Defendant to recover unpaid wages and other relief as a result of the Defendant's alleged violations of the Fair Labor Standards Act and the Virginia Wage Payment Act. The Plaintiff has worked for the Defendants as a bartender from 2008. According to the complaint, although the Plaintiff and other similarly situated employees routinely worked hours in dual jobs, the Defendant did not pay them all of the wages they were due on the regularly scheduled payday because of the Defendant's improper application of a tip credit against wages due. As a result of the Defendants' alleged failure to pay the minimum wages required by law, the Plaintiff and other similarly situated employees suffered damages. Thus, on behalf of herself and all other similarly situated restaurant workers, the Plaintiff seeks to recover unpaid minimum wages, liquidated damages, prejudgment interest, attorney fees, and other relief by reason of the Defendants' violations of the Virginia Wage Payments Act. GMRI, Inc. and Darden Restaurants, Inc. operate steak house restaurants. [BN] The Plaintiff is represented by: James R. Theuer, Esq. JAMES R. THEUER, PLLC 555 E. Main St., Suite 801 Norfolk, VA 23510 Tel: (757) 446-8047 Fax: (757) 446-8048 E-mail: jim@theuerlaw.com GQ SOLUTIONS: Ulery Seeks Leave to Conduct Class Certification -------------------------------------------------------------- In the class action lawsuit captioned as DAVID ULERY, individually and on behalf of all others similarly situated, v. GQ SOLUTIONS, LLC, Case No. 1:22-cv-01581 (D. Colo.), the Plaintiff requests that the Court enter an Order as follows: 1. That Leave of Court be granted to conduct Class Certification and damages related discovery from GQ, including third-party discovery as necessary, in support of Class Certification and final damages judgment; 2. That the Court reserve jurisdiction on the issue of damages against GQ and to otherwise reserve ruling on a final damages determination against GQ until the completion of discovery and a ruling on Class Certification; and 3. That Plaintiff be permitted to seek a final default judgment against GQ, both as to the individual Plaintiff and the putative Class, upon completion of Class Certification and damages discovery from GQ and the Court’s ruling on Class Certification. A copy of the Plaintiff's motion to certify class dated Aug. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3ChaqVB at no extra charge.[CC] The Plaintiff is represented by: Joshua H. Eggnatz., Esq. EGGNATZ | PASCUCCI 7450 Griffin Road, Suite 230 Davie, FL 33314 Telephone: (954) 889-3359 E-mail: JEggnatz@JusticeEarned.com - and - Jordan Richards, Esq. 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 HARTFORD FUNDING: Johnson Files TCPA Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Hartford Funding LTD. The case is styled as Antwane Johnson, individually and on behalf of all others similarly situated v. Hartford Funding LTD., Case No. 2:22-cv-04322-GRB-ST (E.D.N.Y., July 22, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Hartford Funding Ltd. -- https://hartfordfunding.com/ -- is a full service mortgage banker licensed by the NYS Department of Financial Services.[BN] The Plaintiff is represented by: Yitzchak Kopel, Esq. BURSOR & FISHER, P.A. 888 Seventh Ave New York, NY 10019 Phone: (646) 837-7127 Fax: (212) 989-9163 Email: ykopel@bursor.com HERE WE COME: Souza Seeks Overtime Pay Under FLSA, NYLL ------------------------------------------------------- INOCENTE SOUZA, individually and on behalf of all others similarly situated v. HERE WE COME INC. d/b/a JOHN ANTHONY'S PIZZERIA and ANGELO GENOVA, as an individual, Case No. 2:22-cv-04535 (E.D.N.Y., Aug. 2, 2022) seeks to recover compensatory damages and liquidated damages for the Defendants' egregious violations of both the New York Labor Law and the Fair Labor Standards Act arising out of the the Plaintiff's employment with the Defendants. According to the complaint, the Defendants did not pay the Plaintiff an extra hour at the legally prescribed minimum wage for each day worked over (0) hours, a blatant violation of the spread of hours provisions contained in the NYLL. The Plaintiff is a a food preparer, cook and dishwasher while performing related miscellaneous duties for the Defendants, from March 2019 until May 2022.[BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 Facsimile: (718) 263-9598 HONEYWELL INTERNATIONAL: Alencaster Suit Removed to C.D. California ------------------------------------------------------------------- The case styled as Fernando Alencaster, on behalf of himself and all others similarly situated v. Honeywell International, Inc., Does 1 through 50, inclusive, Case No. 22STCV18534 was removed from the Los Angeles Superior Court, to the U.S. District Court for the Central District of California on July 20, 2022. The District Court Clerk assigned Case No. 2:22-cv-05014-SPG-JEM to the proceeding. The nature of suit is stated as Other Labor. Honeywell International Inc. -- https://www.honeywell.com/us/en -- is an American publicly traded, multinational conglomerate corporation headquartered in Charlotte, North Carolina.[BN] The Plaintiff is represented by: Marcus Bradley, Esq. Kiley Lynn Grombacher, Esq. Lirit Ariella King, Esq. BRADLEY GROMBACHER LLP 31365 Oak Crest Drive Suite 240 Westlake Village, CA 91361 Phone: (805) 270-7100 Fax: (805) 618-2939 Email: mbradley@bradleygrombacher.com kgrombacher@bradleygrombacher.com lking@bradleygrombacher.com The Defendants are represented by: Tyler Mark Paetkau, Esq. Olga Savage, Esq. HUSCH BLACKWELL LLP 1999 Harrison Street Suite 700 Oakland, CA 94612 Phone: (510) 768-0660 Fax: (510) 768-0651 Email: tyler.paetkau@huschblackwell.com HSBC BANK: Palmer's Bid to Compel Further Written Discovery Denied ------------------------------------------------------------------ In the case, LAWRENCE PALMER, et al., Plaintiffs v. HSBC BANK, USA, N.A., Defendant, Case No. 22-cv-02178-VC (LB) (N.D. Cal.), Magistrate Judge Laurel Beeler of the U.S. District Court for the Northern District of California, San Francisco Division, denies the Plaintiff's request to compel further written discovery responses. The case began as a putative class action against financial institutions where the Plaintiff asserted claims under state and federal law. The operative Third Amended Complaint includes the following claims: (1) FCRA violations (negligent and intentional); (2) California Bus. & Prof. Code Section 17200 (UCL) violations; (3) California Consumer Credit Reporting Agencies Act (Civil Code Section 1785 et seq.) violations; (4) California Invasion of Privacy Act, Cal. Penal Code Sections 630, violations; (5) Comprehensive Computer Data Access and Fraud Act, Cal. Penal Code Section 502, violations; (6) Intrusion Upon Seclusion; and (7) Public Disclosure of Private Facts. The original named Plaintiff and proposed class representative, Lawrence Palmer, died in September 2021. The Plaintiff moved to substitute Mr. Palmer's spouse, Jeanie Palmer, for Mr. Palmer. The Court found that Jeannie Palmer was not an adequate representative of the class and was not properly substituted for purposes of the state-law claims and that joinder of the defendants named in the original case was not proper. In April 2022, the Court severed the original case (3:20-cv-06309-VC) into four separate actions (3:22-cv-02177-VC, 3:22-cv-02178-VC, 3:22-cv-02179-VC, 3:22-cv-02180-VC). It also struck the class allegations and dismissed all of the claims except Ms. Palmer's individual federal claim. Given the trial court's recent orders, the only pending claim is for alleged violations of the FCRA. The Defendant has moved for summary judgment on this claim on grounds that it did not violate the FCRA because it gave the Plaintiff's husband, Lawrence Palmer, a "firm offer of credit." In this regard, 15 U.S.C. Section 1681b(c)(1)(B)(i) provides that a consumer reporting agency may furnish a consumer report relating to any consumer pursuant to subparagraph (A) or (C) of subsection (a)(3) in connection with any credit or insurance transaction that is not initiated by the consumer only if the transaction consists of a firm offer of credit or insurance." In opposition to the Defendant's motion for summary judgment, the Plaintiff states: "The issue in this case is whether the Defendant had a 'permissible purpose' to procure his credit reports on an inquiry basis." In sum, the live claims and defenses are narrow and involve only whether the Defendant violated the FCRA by obtaining Mr. Palmer's credit report. The parties dispute whether the Defendant must serve supplemental responses to the Plaintiff's written discovery requests. The Plaintiff argues that the Defendant's responses to his (1) Requests for Production Nos. 1-11, 13-26, 29-38 and (2) Interrogatories Nos. 1-33 are improper or incomplete. He also challenges the Defendant's failure to (1) provide a privilege log, (2) verify the responses to the interrogatories "under oath," and (3) produce unredacted copies of responsive documents. The Defendant counters that the material the Plaintiff's seeks is beyond the scope of permissible discovery because (1) the only remaining claims are his individual claims under the Fair Credit Reporting Act and (2) it has produced all the documents it has relating to his "FCRA claims, including the firm offer of credit that was mailed to him, a copy of the contract it entered into with Equifax to pull the credit of individuals who met a set of preselection criteria, its internal policies regarding FCRA compliance, and evidence confirming that a majority of those consumers who were sent the same firm offer of credit as the Plaintiff were able to open credit cards with the Defendant." Judge Beeler first determines whether the information sought is relevant. She finds that the Plaintiff's request to compel the Defendant to provide further responses to Requests for Production Nos. 1-11, 13-26, 29-38 and Interrogatories Nos. 1-33 is unjustified because most of the material and information sought is not within the scope of permissible discovery. Therefore, the Plaintiff's request to compel supplemental discovery responses is denied without prejudice. In any further discovery letter, the parties must (1) specifically identify each disputed request for production or interrogatory and (2) provide each party's view on why the information sought in each request is or is not discoverable. The Plaintiff raised several other issues: (1) the lack of a privilege log, (2) verification "on information and belief," and (3) relevancy redactions. Regarding the privilege log, if the Defendant is withholding any documents based solely on a claim of privilege, it should "produce a privilege log that is sufficiently detailed for the opposing party to assess whether the assertion of privilege is justified." Because the Defendant appears to primarily rely on other objections to its discovery requests (e.g., relevancy, proportionality), it need not produce a privilege log at this time. On the verification issue, Judge Beeler finds that it is not necessarily improper to include "information and belief" language in the verification of interrogatory responses. Because the individual interrogatory responses are not made on information and belief, the Defendant's verification statement complies with the oath requirement in Rule 33(b)(3). Concerning relevancy redactions, so-called relevancy redactions are not prohibited but are generally disfavored outside of certain limited circumstances. Finally, the Plaintiff argues that the Defendant "has improperly produced documents that are wholly redacted," but has not provided any other details to help the court evaluate whether the redactions are justified or not. Judge Beeler declines to order the Defendant to produce unredacted versions of all documents it has produced. She denies the Plaintiff's request to compel supplemental responses to its interrogatories and requests for production without prejudice. Most of the material and information sought in his interrogatories and requests for production is not relevant and proportional to the needs of the case, which now involves a single claim for an individual FCRA violation. A full-text copy of the Court's Aug. 12, 2022 Discovery Order is available at https://tinyurl.com/2p96y24w from Leagle.com. IEC CORP: Court Refuses to Revisit Arbitration Order in Britt Suit ------------------------------------------------------------------ In the case, KAREEM BRITT, et al., Plaintiffs v. IEC CORP., et al., Defendants, Case No. 20-cv-60814-ALTMAN (S.D. Fla.), Judge Roy K. Altman of the U.S. District Court for the Southern District of Florida denies the Plaintiffs': (1) Motion for Reconsideration under Rule 59(e); and (2) Motion to Certify the Order Compelling Arbitration for Interlocutory Review. The Plaintiffs, Kareem Britt and Sharon Henry, are former students at the Florida Career College ("FCC"). When they enrolled, both Britt and Henry agreed to arbitrate any claims they might later have against the school. In 2016, the Department of Education ("DOE") promulgated several regulations that required schools participating in a federal student-loan program to refrain from enforcing any pre-dispute arbitration agreements or class-action waivers they'd signed with their students (the "Old Regulations"). To comply with the Old Regulations, FCC sent its students a notice updating their enrollment agreements. In the Notice, FCC waived its right to arbitrate -- and made clear that its waiver would "apply to your arbitration agreement with FCC for any period of time during which these regulations are in effect." In July 2020, while the case was pending, a new set of regulations took effect (the "New Regulations"). The New Regulations removed the Old Regulations' requirement that participating schools waive their arbitration agreements and class-action bans. On this crucial issue, it provided as follows: "Under final Section 685.300, paragraphs (d) through (i) finalized in the 2016 final regulations covering class action bans and pre-dispute arbitration agreements are removed from the regulations." When the New Regulations came into effect, the Court allowed FCC to re-brief its then-pending motion to compel arbitration. In that second round of motions practice, FCC argued that, because the Notice's arbitration waiver was expressly limited to "any period of time during which the Old Regulations are in effect," FCC was no longer precluded from enforcing the arbitration agreements Britt and Henry had signed in 2018 and 2016, respectively. Finding this argument persuasive, the Court granted FCC's Motion to Compel Arbitration. Since then, the parties agree, neither the facts nor the law has changed. Unhappy with the ruling, the Plaintiffs have now filed both a Motion for Reconsideration and a Motion to Certify. The Plaintiffs' Motion for Reconsideration turns on their view that the Court's Order resulted in four "clear errors" and a not-insignificant helping of "manifest injustice." In the main, they contend as follows: (1) "the Court failed to acknowledge that arbitration is a question of venue determined at the time of filing"; (2) "the Court's decision rests on an argument not advanced by the Parties"; (3) "the Court's decision misinterprets and misapplies a condition subsequent"; (4) "the Court did not construe ambiguity in the Supplement against FCC"; and (5) "the Court's decision is patently unfair and contravenes public policy." In their first argument for reconsideration, the Plaintiffs contend that the Court's Order was "clearly erroneous" because it "failed to acknowledge" that arbitration clauses implicate questions of venue, which (the Plaintiffs say) must be determined on the facts as they existed at the time the complaint was filed. But, as the Defendant points out, this (purported) connection between arbitration clauses and the law of venue, appeared nowhere in the Plaintiffs' briefing on the Motion to Compel. With the Plaintiffs' venue distraction out of the way, Judge Altman holds that the Court can focus on what courts in the Circuit have actually said about "timing" in the context of orders to compel arbitration: "When enforcing an arbitration provision," one of our wiser colleagues has written, "a court may direct the case to arbitration at any time before trial." As the Eleventh Circuit has explained, a litigant's right to compel arbitration is revived when there's an intervening change in the controlling law or a factual development that unexpectedly changes the scope or theory of the case. Since arbitration clauses don't implicate the laws of venue -- and because the Court properly considered, in adjudicating the Motion to Compel, the sea change the New Regulations effected in the parties' relationship -- the Plaintiffs' first argument for reconsideration is denied. In their second argument for reconsideration, the Plaintiffs say that the Court's decision "rested on arguments not advanced by the parties." They advance along two fronts. First, they insist that the Court "picked up" an argument FCC "failed to make: that when the occurrence of the condition subsequent caused the Defendants' waiver to 'expir,' the Defendants became entitled to reverse the performance that they had rendered under the waiver." Second, they fault the Court for deciding the case "outside the adversarial issues presented to it by the parties." Judge Altman finds both arguments unavailing. He denies the Plaintiffs' second ground for reconsideration. He finds that the Plaintiffs are correct that neither party "took up" FCC's right to reverse a past performance. But they're wrong to suggest that the Court's Order had anything to do with past performance. On the contrary, the Order had everything to do with absolving FCC, in light of the triggering of a condition subsequent, of its obligation to perform going forward. And the Plaintiffs concede -- as they must -- that the triggering of that condition did (in fact) absolve FCC of all future obligations. Moreover, FCC claimed that the Old Regulations -- affecting only the relationship between the DOE and the schools -- had no effect, separate and apart from any written waiver by the school, on the agreements the schools had entered into with their students. The Court then found a district court case that said exactly that and set out three reasons (none of which the Plaintiffs even try to assail here) for its view that FCC's reading of the relevant regulatory scheme was the right one. All of this was squarely presented by the parties. In their third argument for reconsideration, the Plaintiffs insist that the Court misapplied the law of conditions subsequent. In support of this claim, they point to the Notice, which (all agree) included the following statement: "We FCC agree not to use any predisputed arbitration agreement to stop you from bringing a lawsuit." But, Judge Altman finds two dispositive problems with the Plaintiffs' position. One, they never presented this "bringing a lawsuit" argument in their briefing on the Motion to Compel. Two, when the condition subsequent finally kicked in -- i.e., when the Old Regulations were no longer "in effect" -- FCC was absolved of its promise to perform in the future. The Plaintiffs agree with this. As a result, long before the Court issued its Order -- and, indeed, before FCC filed its Motion to Compel -- FCC had been absolved of fulfilling its promise. FCC was no longer obligated to perform in the future. So, the Plaintiffs' third argument for reconsideration is denied. In their fourth argument for reconsideration, the Plaintiffs say that the Court "did not construe ambiguity in the Notice against FCC." And they've found "ambiguity" in two places: in the meaning of the phrase "bringing a lawsuit" and on the "effect of a condition subsequent." Two problems with this, Judge Altman finds. One, the Plaintiffs said precisely the opposite in their briefing on the Motion to Compel -- where they referred to the wording of the Notice as "clear and unambiguous." Again, this isn't the time for new arguments the Plaintiffs haven't thought of before. Two, the Court has already thought long and hard about the case and have agreed with the Plaintiffs that the Notice is unambiguous -- just not in the way they hoped. Judge Altman thus denies the Plaintiffs' fourth ground for reconsideration. The Plaintiffs' fifth contention -- that this result is "unfair" and that the Court's decision will result in "manifest injustice" -- fares no better, Judge Altman finds. They advance six arguments, all of which are unpersuasive. Among other things, they say that it's "unfair" for us to send them to arbitration without their consent. But they did consent to arbitration -- in express and unambiguous agreements they signed with FCC. They also think it's "unfair" that their lawyers did all this work -- filing a lawsuit, trading motions practice, collecting discovery -- only to be sent to arbitration. But that's true of any plaintiff who "loses." So, the Plaintiffs' fifth argument for reconsideration is denied. In their Motion to Certify, the Plaintiffs identify six questions that (they say) are controlling questions of law: (1) Does the Court's decision conflict with the Eleventh Circuit's decision in Young v. Grand Canyon University, Inc., 980 F.3d 814 (11th Cir. 2020)? (2) At what point should a district court consider the applicability of an arbitration waiver? (3) Can the occurrence of a condition subsequent affect a party's past duty to perform? (4) Can a contractual waiver be illusory? (5) Can an ambiguous contract be interpreted to squarely conflict with its stated purpose? (6) Can a district court compel arbitration on grounds not advanced by the moving party? Judge Altman holds that each question fails, for one reason or another, to justify an immediate appeal. The first question isn't a "pure" (or "controlling") question of law at all. The Plaintiffs' second question does present a "pure question of law," but it fails to justify an immediate appeal because they do "not meet the second factor": that there be "'substantial ground for difference of opinion. Their third, fourth, fifth, and sixth questions fail to justify an immediate appeal because, among other things, they're not "controlling of at least a substantial part of the case," because the Court did not "identify these questions in its Order," and because there aren't "substantial grounds for differences of opinion on these questions." For these reasons, the Plaintiffs have failed to identify a "controlling question of law" about which there is "substantial ground for difference of opinion" -- the first two elements of Section 1292(b). Because the statute's standard is "conjunctive," Judge Altman needn't reach the third element -- whether an immediate appeal would materially advance the ultimate termination of the litigation. Since the Plaintiffs have thus failed to meet their "high burden under section 1292(b)," their Motion to Certify is denied. The case will remain stayed and closed pending arbitration. Every 90 days from the date of the Order, the parties will jointly file a report on the status of their arbitration proceedings. Within 15 days of the arbitration's conclusion, the parties will jointly file a notice briefly describing the outcome of that arbitration. A full-text copy of the Court's Aug. 16, 2022 Omnibus Order is available at https://tinyurl.com/mry4zxze from Leagle.com. IGNITE TEAM: Fails to Pay Proper Wages, Parker Suit Alleges ----------------------------------------------------------- MARANDA PARKER, individually and on behalf of all others similarly situated, Plaintiff v. IGNITE TEAM PARTNERS, LLC; IMR OAK CREEK OPCO LLC; and SHAKENBAKE INVESTMENTS, LLC, Defendants, Case No. 2:22-cv-00943-JPS (E.D. Mich., Aug. 17, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Parker was employed by the Defendants as staff. IGNITE TEAM PARTNERS, LLC is a consulting agency that offers professional consulting services to small and medium-sized enterprises (SMEs) in the Bay Area. The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 ILLUMINATE EDUCATION: Cranor Files Suit in C.D. California ---------------------------------------------------------- A class action lawsuit has been filed against Illuminate Education, Inc. The case is styled as Lucas Cranor, individually and on Behalf of All Others Similarly Situated v. Illuminate Education, Inc., Case No. 8:22-cv-01404-JVS-ADS (C.D. Cal., July 28, 2022). The nature of suit is stated as Other P.I. for Contract Dispute. Illuminate Education -- https://www.illuminateed.com/ -- provides innovative tools that educators can use to promote student and educator success.[BN] The Plaintiff is represented by: Laurence D King, Esq. Blair Elizabeth Reed, Esq. KAPLAN FOX AND KILSHEIMER LLP 1999 Harrison Street Suite 1560 Oakland, CA 94612 Phone: (415) 772-4700 Fax: (415) 772-4707 Email: lking@kaplanfox.com breed@kaplanfox.com - and - Justin B. Farar, Esq. KAPLAN FOX AND KILSHEIMER LLP 12400 Wilshire Boulevard Suite 8460 Los Angeles, CA 90025 Phone: (310) 614-7260 Fax: (310) 614-7260 Email: jfarar@kaplanfox.com IMPERIAL MOBILE: Ochoa Seeks OT Premium Pay Under NYLL, FLSA ------------------------------------------------------------ ADRIAN PADILLA OCHOA, individually and on behalf of all other persons similarly situated, v. IMPERIAL MOBILE CAR WASH INC. d/b/a "IMPERIAL HAND CAR WASH" and JOHN DOE a/k/a "DOMINO," Jointly and Severally, Case No. 1:22-cv-04579 (E.D.N.Y., Aug. 3, 2022) seeks to recover overtime premium pay under the New York Labor Law and the Fair Labor Standards Act. Plaintiff Ochoa worked as car wash attendant for the Defendants from 2013 to February 2022. Imperial Car Wash is a car wash located at 69-03 Woodhaven Boulevard, Rego Park, New York. Imperial Car Wash provides car washing and detailing services and services anywhere from 450 to 800 cars per day.[BN] The Plaintiff is represented by: Douglas B. Lipsky, Esq. Milana Dostanitch, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170-1830 Telephone: (212) 392-4772 E-mail: doug@lipskylowe.com milana@lipskylowe.com INFUCARE RX: Sharfman Files Bid for Class Certification ------------------------------------------------------- In the class action lawsuit captioned as MARC IRWIN SHARFMAN, M.D., P.A., a Florida corporation, individually and as the representative of a class of similarly-situated persons, v. INFUCARE RX LLC, a Pennsylvania limited liability company, and INFUCARE RX PENNSYLVANIA INC., a Pennsylvania corporation, Case No. 6:21-cv-00525-WWB-DCI(M.D. Fla.), the Plaintiff asks the Court to enter an order certifying the following Class A: "All persons or entities who were successfully sent a Fax, on or about March 10, 2021, March 11, 2021, or March 18, 2021, that states: "Infucare Rx is now a Preferred Provider," and/or "Selected by Cigna's eviCore healthcare for Specialty and Non-Specialty Infusions Services," and/or "Selected by Cigna's eviCore healthcare for Specialty Pharmacy and Infusion Therapy Services." In the alternative, if the Court finds it necessary to distinguish between Faxes successfully sent to "stand-alone" fax machines versus Faxes that were successfullyCase 6:21-cv-00525-WWB-DCI Document 50 Filed 08/05/22 Page 10 of 39 PageID 264 sent to an "online fax service," Plaintiff seeks to certify the following class: Class B "All persons or entities who were successfully sent a Fax to their stand-alone fax machine, on or about March 10, 2021, March 11, 2021, or March 18, 2021, that states: "Infucare Rx is now a Preferred Provider," and/or "Selected by Cigna's eviCore healthcare for Specialty and Non-Specialty Infusions Services," and/or "Selected by Cigna's eviCore healthcare for Specialty Pharmacy and Infusion Therapy Services." Excluded from the proposed Classes are practices/physicians with whom Infucare claims to "have a relationship," including those that have signed declarations regarding permission. Plaintiff also seeks an Order from the Court appointing Plaintiff as class representative and appointing the law firm of Anderson + Wanca as class counsel. In violation of the Telephone Consumer Protection Act of 1991 (TCPA), the Defendant successfully sent 11,417 unsolicited fax advertisements (the Faxes) to 8,990 unique fax numbers in broadcasts conducted on March 10, 2021 and March 11, 2021, and on March 18, 2021, advertising their Immunoglobulin Therapy and Infusion Therapy services. Infucare utilized third-party fax broadcaster Concord III, LLC to transmit the Faxes to a list of recipients Infucare purchased from third-party data provider Definitive Healthcare. Infucare did not have prior express permission to send the Faxes. InfuCare provides healthcare services. The Company offers infusion therapy and specialty pharmacy services to patients in the homecare setting. A copy of the Plaintiff's motion to certify class dated Aug. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3PTKoeA at no extra charge.[CC] The Plaintiff is represented by: Ryan M. Kelly, Esq. Ross M. Good, Esq. Wallace C. Solberg, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: rkelly@andersonwanca.com rgood@andersonwanca.com wsolberg@andersonwanca.com INSIDER INC: Discloses Digital Users' Personal Info, Roby Says -------------------------------------------------------------- DARMEL ROBY, JENNIFER JUENKE, JAMIE SPRITZER, and TIMOTHY STOKES, individually and on behalf of all others similarly situated, Plaintiffs v. INSIDER, INC., Defendant, Case No. 1:22-cv-06834 (S.D.N.Y., Aug. 10, 2022) is a consumer privacy class action against Insider, Inc. for allegedly violating the Video Privacy Protection Act by disclosing its digital users' identities and video-viewing preferences to Meta Platforms, Inc., the owner of popular social media platforms Facebook and Instagram, without proper consent. According to the complaint, Insider, through its website, www.businessinsider.com, collects and shares users' personal information with Meta using a "Meta Pixel." A Meta Pixel is a snippet of programming code that tracks users as they navigate through a website, including what searches they performed and which items they have clicked on or viewed. Insider shared with Meta personal identifiable information, including at least the user's Facebook Profile ID, and the title of the video that the user watched. A user's Facebook Profile ID is linked to their Facebook profile, which generally contains a wide range of demographic and other information about the user, including pictures, personal interests, work history, relationship status, and other details. Insider discloses the user's Facebook Profile ID and viewing content to Meta together in a single, unencrypted transmission, in violation of the VPPA, alleges the suit. The Plaintiffs are Insider subscribers and provided Insider with their personal identifiable information, including their names and email addresses when subscribing to its services. Insider, Inc., originally called Business Insider Inc., is an American online media company known for publishing the financial news website Insider and other news and media websites.[BN] The Plaintiffs are represented by: Christian Levis, Esq. Amanda Fiorilla, Esq. LOWEY DANNENBERG, P.C. 44 South Broadway, Suite 1100 White Plains, NY 10601 Telephone: (914) 997-0500 Facsimile: (914) 997-0035 E-mail: clevis@lowey.com afiorilla@lowey.com - and - Adam E. Polk, Esq. Simon Grille, Esq. Jessica Cook, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Telephone: (415) 981-4800 E-mail: apolk@girardsharp.com sgrille@girardsharp.com jcook@girardsharp.com INTERSYSTEMS CORP: Fails to Properly Pay Manual Workers, Suit Says ------------------------------------------------------------------ EDGAR NAJERA, individually and on behalf of all others similarly situated v. INTERSYSTEMS CORPORATION and PRATT CONSTRUCTION & RESTORATION INC., and SERAFIN, as an individual, Case No. 1:22-cv-04530 (E.D.N.Y., Aug. 2, 2022) seeks to recover compensatory damages and liquidated damages for the Defendants' egregious violations of the Fair Labor Standards Act and the New York Labor Law arising out of the Plaintiff's employment with the Defendants. According to the complaint, despite being a manual worker, the Defendants failed to properly pay the Plaintiff his wages within seven calendar days after the end of the week in which these wages were earned. The Defendants willfully failed to post notices of the minimum wage and overtime wage requirements in a conspicuous place at the location of their employment as required by both the NYLL and the FLSA, says the suit. The Plaintiff was employed by Intersystems Corporation, as a construction worker and scaffolder while performing related miscellaneous duties for the Defendants, from 2007 until July 2022. InterSystems is a privately held vendor of software systems and technology for high-performance database management, rapid application development, integration, and healthcare information systems.[BN] The Plaintiff is represented by: HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 Facsimile: (718) 263-9598 J.C. TOYS GROUP: Young Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against J.C. Toys Group, Inc. The case is styled as Lawrence Young, on behalf of himself and all other persons similarly situated v. J.C. Toys Group, Inc., Case No. 1:22-cv-06250-VEC (S.D.N.Y., July 22, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. JC Toys Group, Inc. -- https://www.jctoys.com/ -- is the worldwide designer and manufacturer of a wide range of collectible dolls, specialty play items and play dolls and accessories.[BN] The Plaintiff is represented by: Bradly G. Marks, Esq. THE MARKS LAW FIRM, PC 155 East 55th St., Ste. 6a New York, NY 10022 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: brad@markslawpc.com J.G. WENTWORTH COMPANY: Simpson Sues Over Pre-Recorded Calls ------------------------------------------------------------ Douglas Simpson, on behalf of himself and others similarly situated v. THE J.G. WENTWORTH COMPANY, Case No. 2:22-cv-02911-KSM (E.D. Pa., July 25, 2022), is brought involving a campaign by the Defendants to market its services through the use of pre-recorded telemarketing calls in violation of the Telephone Consumer Protection Act ("TCPA"). The Plaintiff also alleges that the Defendants uses automated systems to make telemarketing calls into Florida as well as to Florida residents that have placed themselves on the National Do Not Call Registry, and that by doing so, the Defendants has violated the provisions of the Florida Telephone Solicitations Act. Because these calls were transmitted using technology capable of generating thousands of similar calls per day, the Plaintiff sues on behalf of a proposed nationwide class of other persons who received similar calls. A class action is the best means of obtaining redress for the Defendant's illegal telemarketing and is consistent both with the private right of action afforded by the TCPA, says the complaint. The Plaintiff is a Florida resident who was located in Florida at the time of the call. The J.G. Wentworth Company is a corporation with its principal place of business in this District.[BN] The Plaintiff is represented by: Jeremy C. Jackson, Esq. BOWER LAW ASSOCIATES, PLLC 403 S. Allen St., Suite 210 State College, PA 16801 Phone: 814-234-2626 Email: jjackson@bower-law.com - and - Anthony I. Paronich, Esq. PARONICH LAW, P.C. 350 Lincoln Street, Suite 2400 Hingham, MA 02043 Phone: (508) 221-1510 Email: anthony@paronichlaw.com JACKSON, MI: 903 West Class Cert. Bid Tossed w/o Prejudice ----------------------------------------------------------- In the class action lawsuit captioned 903 WEST WASHINGTON LLC, et al., v. CITY OF JACKSON, et al., Case No. 2:22-cv-11110-SJM-APP (E.D. Mich.), the Hon. Judge Stephen J. Murphy, III entered an order that the motion for class certification is denied without prejudice as premature. The Plaintiffs may move for class certification after Court-sanctioned discovery is completed, the Court says. Jackson is the only city and county seat of Jackson County in the U.S. state of Michigan. A copy of the Court's order dated Aug. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3QOxDD4 at no extra charge.[CC] JCCA: Krasnansky Seeks to Recover Unpaid Wages Under FLSA, NYLL --------------------------------------------------------------- MICHAEL KRASNANSKY, on behalf of himself, FLSA Collective Plaintiffs, and the Class, v. JCCA f/k/a JEWISH CHILDCARE ASSOCIATION, Case No. 7:22-cv-06577 (S.D.N.Y., Aug. 2, 2022) seeks to recover unpaid wages, including overtime wages, due to time shaving, liquidated damages, and attorneys' fees and costs pursuant to the Fair Labor Standards Act and the New York Labor Law. JCCA operates as a non-profit organization. The Association provides philanthropic programs[BN] The Plaintiff is represented by: Jeffrey D. Pollack, Esq. Ryan W. Lawler, Esq. Adam K. Brody, Esq. MINTZ & GOLD LLP 600 Third Ave., 25th Floor New York, NY 10016 Telephone: (212) 696-4848 E-mail: pollack@mintzandgold.com lawler@mintzandgold.com brody@mintzandgold.com KASHI SALES: Karney Files Suit in S.D. Florida ---------------------------------------------- A class action lawsuit has been filed against Kashi Sales, LLC. The case is styled as Stacey Karney, individually and on behalf of all others similarly situated v. Kashi Sales, LLC, Case No. 1:22-cv-22325-JEM (S.D. Fla., July 25, 2022). The nature of suit is stated as Other Fraud. Kashi -- https://www.kashi.com/en_US/home.html -- is a maker of whole grain cereals and other plant-based foods sourced from regular farming practices.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Road, Ste. 412 Great Neck, NY 11021 Phone: (516) 268-7080 Fax: (516) 234-7800 Email: spencer@spencersheehan.com - and - William Charles Wright, Esq. THE WRIGHT LAW OFFICE, P.A. 515 N. Flagler Drive Suite P-300 West Palm Beach, FL 33401 Phone: (561) 514-0904 Email: willwright@wrightlawoffice.com KEVIN STATEN: Celluci Files Suit in S.D. Florida ------------------------------------------------ A class action lawsuit has been filed against Kevin Staten, et al. The case is styled as Anthony Celluci, putative class representative and those similarly situated v. Kevin Staten, Priority Payment, Corp., Edwin Gonzalez, Natala Yenatska, Thomas A. Wells, Case No. 1:22-cv-22083-RNS (S.D. Fla., July 8, 2022). The nature of suit is stated as Other Fraud for Action to Recover Money. Priority -- https://www.pps.io/ -- is one of the fastest growing payments companies in the U.S.[BN] The Plaintiff is represented by: Adriana Contartese, Esq. LAW OFFICE OF ADRIANA CONTARTESE 368 West Broadway, 2nd Floor Boston, MA 02127 Phone: (617) 268-3557 Fax: (617) 464-6490 Email: Adriana911@juno.com KIA AMERICA INC: Simmons Sues Over Undisclosed Vehicle Defect ------------------------------------------------------------- Charles W. Simmons, Dale Denney, and Charles Cole on behalf of themselves and all others similarly situated v. Kia America, Inc., Hyundai Motor America, Hyundai Kia America Technical Center, Inc., Case No. 2:22-cv-02288-HLT-RES (D. Kan., July 25, 2022), is brought arising from a defect in Defendants' vehicles which make them easy to steal, unsafe, and worth less than they should be, if they did not have the defect, and to recover damages for violations of the Kansas Consumer Protection Act ("KCPA") the Magnuson Moss Warranty Act. The Defendants manufacture, design, produce, distribute and sell the "Defective Vehicles," which are hereby defined as: "all Kia models from 2011-2021, and all Hyundai models from 2015-2021." The Defendants concealed or otherwise failed to disclose, reveal, or provide notice to customers, including Plaintiffs, in Defendants' advertising, labeling or otherwise that these vehicles are defective and are not fit for the ordinary purposes for which the vehicles are used in that they are easy to steal, unsafe, and worth less than they should be, if they were not defective. The vehicles are defective in that, among other things, the Defendants manufactured and designed them without engine immobilizers, an electronic security device that make it more difficult to start a vehicle without a key. Additionally, some of the Defective Vehicles' windows are not connected to the security system which thus allows a thief to break the window without the alarm being triggered. This means that all a thief needs to do is strip the ignition column, exposing a piece that pops off and they can then can stick a USB drive, a knife, or something like that to start the vehicle without a key or code. Considering how many people charge their cell phones in their cars, the necessary instrument needed to steal a Defective Vehicle is usually readily available to any thief. The Defendants did not disclose this defect, which is a material fact, and a fact that a reasonable person would rely on when purchasing a vehicle. The Defendants sold these Defective Vehicles at multiple locations throughout the state of Kansas and the United States. The Defendants sold the Defective Vehicles to the Plaintiffs and other reasonable consumers without disclosing the fact that these vehicles had a defect which made them easy to steal, unsafe, and worth less than they should be, if they did not have the defect, says the complaint. The Plaintiff purchased the Defective Vehicles for personal, family, or household purposes. Kia America, Inc. is engaged in the business of testing, developing, manufacturing, labeling, marketing, distributing, promoting, supplying and/or selling, either directly or indirectly, through third parties and/or related entities, the Defective Vehicles.[BN] The Plaintiffs are represented by: Paul D. Anderson, Esq. Kenneth B. McClain, Esq. Jonathan M. Soper, Esq. Kevin D. Stanley, Esq. HUMPHREY, FARRINGTON & MCCLAIN, P.C. 221 West Lexington Ave., Ste. 400 Independence, MO 64051 Phone: (816) 836-5050 Fax: (816) 836-8966 Email: pda@hfmlegal.com kbm@hfmlegal.com jms@hfmlegal.com kds@hfmlegal.com KINDER MORGAN: Wins Bid for Judgment on Pleadings in Pedersen Suit ------------------------------------------------------------------ In the case, CURTIS T. PEDERSEN, et al., Plaintiffs v. KINDER MORGAN INC, et al., Defendants, Civil Action No. 4:21-CV-03590 (S.D. Tex.), Judge Keith P. Ellison of the U.S. District Court for the Southern District of Texas, Houston Division, grants in part and denies in part the Defendant's Motion for Judgment on the Pleadings. The matter concerns a retirement benefit plan controversy that came about because a series of corporate mergers resulted in now-contested changes to the Plaintiffs' retirement benefits. Named Plaintiffs Curtis T. Pedersen and Beverly Leutloff are both participants in the Kinder Morgan Retirement Plan A who worked for the ANR Co. starting in 1979 and 1978, respectively. The ANR is a natural gas pipeline owner and operator, founded in the 19th century. Mr. Pedersen retired from ANR in November 2019 and commenced his retirement benefits under Plan A on Dec. 1, 2019. Ms. Leutloff still works for ANR and has not commenced her retirement benefits under Plan A even though she has reached the retirement age of 62 because Kinder Morgan's Claims Administrator denied that she was eligible for "unreduced" retirement benefits at age 62. In March of 1985, the Coastal Corp. acquired the ANR. When the Coastal acquired ANR in 1985, it amended the Coastal pension plan to provide for a "grandfather" of the ANR benefit formula and for participants to earn benefits under the Coastal Plan's benefit formula and receive the higher of the two. In January 2001, the El Paso Corp. acquired the Coastal, including its ANR subsidiary, and merged them both into the El Paso Corporation. After El Paso acquired Coastal, the Coastal Pension Plan and the El Paso Pension Plan were merged effective March 31, 2001. On Feb. 22, 2007, the El Paso sold the ANR subsidiary to TransCanada American Investments LTD which is a wholly-owned subsidiary of the TransCanada Corp. After TransCanada acquired the ANR subsidiary from El Paso in 2007, the benefits that ANR employees had previously accrued under the El Paso Plan continued to be governed by El Paso's Pension Plan even after the ANR subsidiary was acquired by TransCanada. On May 2012, the El Paso was acquired by Kinder Morgan; as a result of that acquisition, El Paso was merged into Kinder Morgan. When the El Paso was acquired by Kinder Morgan in 2012, Kinder Morgan merged El Paso's Pension Plan into Kinder Morgan's with Appendix X ("Coastal Appendix") to reflect special rules for employees of the Coastal and its subsidiaries, including the ANR employees. The Kinder Morgan Merger resulted in another controversial change to the Pension Plan. The fraction used to calculate beneficiaries' post retirement monthly benefits was changed in a crucial way. One gets a significantly lower monthly benefit when Kinder Morgan's fraction is used. In Claim I, the Plaintiffs argue that by applying a "fraction" that uses 43.4167 years in the "denominator" rather than the maximum of 30 years used in the normal retirement benefit formula, Kinder Morgan "backloaded" Mr. Pedersen's "Part 1" retirement benefit of $4,127.08 to later years of service. Mr. Pedersen could not accrue the full $4,127.08 unless he worked for an additional 13.4167 years beyond the 30 years on which the $4,127.08 is calculated. The Plaintiffs' Claim II is based on the same set of facts as Claim I except that in Claim II Plaintiffs focus on the Plan language describing the denominator. The new Plan language removed the denominator's 30-year limit. Therefore, the Plaintiffs claim that the amendment to the Plan violates ERISA's "anti-cutback" protection, which provides that the "accrued benefit" of an employee participating in a company retirement plan like El Paso's "may not be decreased by an amendment of the plan." In Claim III, the Plaintiffs allege that Kinder Morgan's Summary Plan Descriptions failed to alert beneficiaries of the fact that Kinder Morgan's larger denominator would likely decrease their monthly benefits if they started working at ANR before they turned 35 (because the denominator is calculated by counting the years between the beneficiary's age when hired and the year the beneficiary turns 65). Therefore, they claim the Defendants ran afoul of ERISA Section 102(a), 29 U.S.C. 1022(a), which requires disclosures of the plan's terms "written in a manner calculated to be understood by the average plan participant." In Claim IV, the Plaintiffs allege that the mentioned 2007 Notice of the Ninth Amendment -- which ended the Plan's policy granting early retirement eligibility to employees who had turned 55 and completed 10 years of service, but allowed employees who were already 53 to keep their early retirement benefits -- also violated ERISA's anti-cutback" protection. In Claim V, the Plaintiffs argue in the alternative, that even if Plaintiffs Pedersen and Leutloff (who were not 53 years old when the 2007 Notice came out) are not entitled to early retirement benefits, the language of the Plan still provides that they are eligible for an unreduced retirement benefit at age 62. Kinder Morgan asserts that those unreduced benefits were the result of a calculation error; Kinder Morgan's interpretation of the Section 15 Plan language is that the only portion of the monthly payment that is unreduced is the 0.3% of Final Average Monthly Earnings multiplied by years of credited service under the ANR Plan prior to 1986. The rest of the monthly earnings, Kinder Morgan insists, are subject to a "Vested Termination Reduction Factor" of 0.7142 -- which means that beneficiaries will only receive 71.42%. The Plaintiffs claim that Kinder Morgan's interpretation of the Plan language is incorrect, and is a violation of fiduciary duties. And finally, Claim VI takes issue with the methods Kinder Morgan uses to calculate the just-mentioned "Vested Termination Reduction Factor" of 0.7142. They argue that the GAM83 mortality table and 8% interest rate are outdated and that continued use of this "outdated mortality table and old interest rate (when interest rates are currently below 4%)" produces a retirement benefit for Mr. Pedersen at age 62 that is equal to only 71.4% of the benefit at age 65. They argue that use of those actuarial assumptions violates ERISA Section 204(c)(3)'s requirement that early retirement benefits provide at least "actuarially equivalent" benefits to those offered at normal retirement age. The Plaintiffs bring claims on behalf of themselves and on behalf of a proposed class (encapsulating more than 10,000 members) defined as "any and all persons who have participated in the Kinder Morgan Retirement Plan A or Plan B who: (1) Are current or former employees of the ANR Company, or for Claims I - III the Coastal Corporation, and (2) Participated in the El Paso Pension Plan after El Paso acquired the Coastal Corporation in 2001." They ask the Court to render the following forms of relief: a. Declare that in accordance with ERISA's statutory rules and the terms of the Kinder Morgan Retirement Plan and its Appendices, Curtis Pedersen and Beverly Leutloff and all others similarly-situated are entitled to retirement benefits calculated with a fraction where the denominator is no more than the maximum of 30 years that can be attained under the Plan. b. Declare that ERISA and the terms of the Plan require that the named Plaintiffs and all others similarly-situated have the right to the early retirement benefits provided under the El Paso Plan including that benefits are unreduced for commencement after they reach age 62. c. Enjoin the Defendants to calculate the amount of participants' retirement benefits and their benefits at age 62 and earlier retirement ages in accordance with those declarations and take all necessary steps to give full effect to those declarations and injunctions and fully account for the provision of that relief to Pedersen, Leutloff and all others similarly-situated, including providing past due benefits. d. Order the Defendants to pay interest on past due back payments at no less than the rates of return realized on the Defendant Kinder Morgan, Inc. and the Defendant Kinder Morgan Retirement Plan's equity investments over the same period. e. Order the Defendants to pay attorneys' fees and expenses. f. Award such other equitable and remedial relief as the Court deems appropriate to ensure receipt of all retirement benefits required to give full effect to the Court's declarations and injunction. Judge Ellison held a hearing on the Defendant's Motion for Judgment on the Pleadings on July 21, 2022. Initially, the Defendants argue that to the extent the Plaintiffs are bringing their claims under ERISA Section 502(a)(3) instead of 502(a)(1)(B), their claims must be dismissed. Judge Ellison grants the Defendants' motion for judgment on the pleadings as to Claim I and denies as to Claims II to V. He finds that (i) the Plaintiffs have "an adequate mechanism for redress under" ERISA Section 502(a)(1)(B) for "failure to compensate the Plaintiff] under the terms of the plan (Claim I; (ii) El Paso's amendment to the fraction cannot be fixed by changing the denominator back to the original provision, but making other changes to the fraction to achieve similar results (Claim II); (iii) the Plaintiffs' claim is not asking the Court to deal with the terms of the Plan at all (Claim III); (iv) interpretation and enforcement of the Kinder Morgan Plan's Ninth Amendment would not address the Plaintiffs' claimed injury (Claim IV); (v) since the Plaintiffs' requested relief clearly asks the Court to interpret and enforce the Plan, Claim V must be brought under 502(a)(1)(B); and (vi) the Plaintiffs ask the Court to force the Defendants to amend the Kinder Morgan Pension Plan, using a 4% interest rate instead of an 8% interest rate, and using the mortality table currently prescribed by ERISA Section 205(g)(3) (Claim VI). Next, Judge Ellison examines whether Claims III, IV, and VI should be dismissed notwithstanding 502(a)(3). He finds that the conflicting communications and performances by Kinder Morgan in the months and years following the 2007 Notice delayed claim accrual until mid-2018, when defendants unequivocally stopped giving out unreduced benefits. Therefore, he denies the Defendants' motion for judgment on the pleadings as to the untimeliness of Claims VI and IV. Judge Ellison also finds that the Plaintiffs have pled a plausible violation of ERISA Section 102(a). El Paso and Kinder Morgan failed to identify circumstances which may result in denial or loss of benefits that the average plan participant might otherwise reasonably expect the plan to provide based on the description of a benefit formula of 2% of pay for up to 30 years. Therefore, the Defendants' motion for judgment on the pleadings as to Claim III is denied. Judge Ellison further finds that ERISA Section 204(c)(3)'s actuarial equivalence requirement would be completely undermined if the Defendants were free to use whatever actuarial assumptions they want when calculating benefits. Therefore, he denies the Defendants' motion for judgment on the pleadings as to Claim VI. Lastly, Judge Ellison determines whether Kinder Morgan, the Individual Fiduciaries, and Plan B are proper Defendants. First, he finds that Kinder Morgan cannot be sued under 502(a)(1)(B) because the company did not control administration of the Plan. So he grants the Defendants' motion for judgment on the pleadings as to Section 502(a)(1)(B) claims against Kinder Morgan, Inc. However, he finds no meaningful distinction between the Committee as an entity and the committee members in their individual capacity. Therefore, he denies the Defendants' motion for judgment on the pleadings insofar as to 502(a)(1)(B) claims against individual committee members. Second, Judge Ellison holds that Kinder Morgan cannot be sued as a fiduciary because the company did not exercise any discretionary authority or discretionary control respecting management of the Plan. It remains the case that benefit determinations were indisputably delegated to the Committee. So, he grants the Defendants' motion for judgment on the pleadings as to Kinder Morgan, Inc., being sued as a fiduciary. However, he again finds that where fiduciary status is concerned, there is no meaningful distinction between the Committee as an entity and the committee members in their individual capacity. Therefore, he denies the Defendants' motion for judgment on the pleadings insofar as to individual committee members being sued as fiduciaries. Third, Judge Ellison holds that the participants who were spun off into Kinder Morgan's Plan B are subject to the same general practices and suffer from the same alleged injuries as those whom Kinder Morgan left in Plan A. Therefore, he denies the Defendants' motion for judgment on the pleadings as to the Plaintiffs' Article III standing to represent Plan B participants. Finally, Judge Ellison denies the Defendants' motion for judgment on the pleadings as to improper group pleading. Their group pleading allegations fall flat for three reasons: (1) it is undisputed that the Committee had the sole authority and responsibility for administration of the plan; (2) the group pleading allegation appear to be a motion for a "more definite statement," which the Defendants should have filed under Rule 12(e) before the responsive pleading; and (3) the Defendants' citation to the Court's ruling in Del Castillo is unpersuasive because Del Castillo is about "lumping together distinct corporate entities"; it does not bear on the fiduciary responsibilities of the officers of a single company who are all serve as members of a Fiduciary Committee. For the reasons he described and as stated on the record at the July 21, 2022 hearing, Judge Ellison grants the Defendants' Motion for Judgment on the Pleadings as to Claim I and Claim V to the extent the Plaintiff seeks to bring them under 502(a)(3); grants the Defendants' Motion as to Section 502(a)(1)(B) claims brought against Kinder Morgan, In.; grants its Motion as to Kinder Morgan being sued as a fiduciary; and denies their Motion in all other respects. A full-text copy of the Court's Aug. 12, 2022 Memorandum & Order is available at https://tinyurl.com/45ujnnfp from Leagle.com. KING DR. HALAL: Neal Sues Over Unpaid Regular and Overtime Wages ---------------------------------------------------------------- Donna Neal, on behalf of herself and all other plaintiffs similarly situated, known and unknown v. KING DR. HALAL, INC., ILLINOIS AN CORPORATION D/B/A BABA'S HALAL, D/B/A BABA'S HALAL FAMOUS STEAK & LEMONADE, D/B/A BABA'S FAMOUS STEAKS & LEMONADE, FAWZI F. AYED, INDIVIDUALLY, Case No. 1:22-cv-03825 (N.D. Ill., July 25, 2022), is brought under the Fair Labor Standards Act ("FLSA"), the Illinois Minimum Wage Law ("IMWL"), and the Chicago Minimum Wage Ordinance ("CMWO") of the Municipal Code of Chicago as a result of the Defendants' failure to pay regular and overtime wages. The Plaintiff was consistently required to work more than 40 hours each week and was not paid overtime premiums of one and one-half her regular rate of pay for such hours. The Plaintiff was paid a flat, per day rate of pay of approximately $70 for a purported workday of 7 hours. However, the Plaintiff almost always worked far in excess of hours which the per-diem compensation plan was based and intended to compensate. As such the Plaintiff did not receive any compensation for hours worked in excess of 7 per day or 40 per week. Additionally, the Plaintiff worked far in excess of the hours included in her per-diem compensation structure that was not recorded by the Defendants--or work off the clock. The Plaintiff was not compensated for work performed "off the clock" in excess of the seven-hour day which her compensation covered. Plaintiff was required to perform pre- and post-shift duties, such as cleaning and closing duties that she was not paid for outside of her per-diem wages. Lastly, as a result of Defendants' illegal per-diem wage scheme, Plaintiff was paid below the minimum wage prescribed by the IMWL and CMWO. At times, the Plaintiff's regular hourly rate also fell below the federal minimum wage set forth by the FLSA, says the complaint. The Plaintiff is a former employee of Defendants who performed a number of restaurant cashier, food preparer, food service and janitorial duties. The Defendants operates a counter service, fast food restaurant located in Chicago, Illinois.[BN] The Plaintiff is represented by: Samuel D. Engelson, Esq. John William Billhorn, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 1137 Chicago, IL 60604 Phone: (312) 853-1450 LENDINGPOINT LLC: Lynch Sues Over Unsolicited Text Messaging ------------------------------------------------------------ Alva Lynch, individually and on behalf of all others similarly situated v. LENDINGPOINT LLC, Case No. 8:22-cv-01654-KKM-JSS (July 21, 2022), is brought pursuant to the Telephone Consumer Protection Act (the "TCPA"), and the Florida Telephone Solicitation Act ("FTSA"), as a result of the Defendant's engagement in unsolicited text messaging. To promote its goods and services, the Defendant engages in unsolicited text messaging to those who have not provided the Defendant with their prior express written consent as required by the FTSA. The Defendant also engages in telemarketing without the requisite policies and procedures and training required under the TCPA and its implementing regulations. The Defendant's telephonic sales calls have caused the Plaintiff and the Class members harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy. Through this action, the Plaintiff seeks an injunction and statutory damages on behalf of Plaintiff and the Class members, and any other available legal or equitable remedies resulting from the unlawful actions of the Defendant, says the complaint. The Plaintiff is a citizen and resident of Hillsborough County, Florida. The Defendant is a foreign corporation and a "telephone solicitor."[BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 East Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Phone: 954.400.4713 Email: mhiraldo@hiraldolaw.com - and - Rachel N. Dapeer, Esq. DAPEER LAW, P.A. 20900 NE 30th Avenue, Ste. 417 Aventura, FL 333180 Phone: 305-610-5223 Email: rachel@dapeer.com LIBERTY HEALTHCARE: Fails to Pay Overtime Pay, Adams Alleges ------------------------------------------------------------ MISTI ADAMS, individually and on behalf of all others similarly situated, Plaintiff v. LIBERTY HEALTHCARE SERVICES, LLC; LIBERTY HEALTHCARE SERVICES, LLC PLUS; CHANTHOU PHAY; and GAIL BOUNEMANY, Defendants, Case No. 2:22-cv-03132-MHW-KAJ (S.D. Ohio, Aug. 16, 2022) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. Plaintiff Adams was employed by the Defendants as staff. LIBERTY HEALTHCARE SERVICES, LLC provides health care services. The Company offers personal care, homemaker, companion, physical therapy, medications, medical social, and counseling services. [BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. Kelsie N. Hendren, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Road Suite 126 Columbus, OH 43220 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 Email: mcoffman@mcoffmanlegal.com khendren@mcoffmanlegal.com - and - Peter Contreras, Esq. CONTRERAS LAW, LLC 1550 Old Henderson Road Suite 126 Columbus, Ohio 43220 Telephone: (614) 787-4878 Facsimile: (614) 957-7515 Email: peter.contreras@contrerasfirm.com LOANDEPOT.COM LLC: Smaling Suit Removed to S.D. Florida ------------------------------------------------------- The case styled as Ashley Smaling, individually and on behalf of all others similarly situated v. LoanDepot.com, LLC, Case No. CACE-22-008672 was removed from the 17th Judicial Circuit Broward County, Florida, to the U.S. District Court for the Southern District of Florida on July 26, 2022. The District Court Clerk assigned Case No. 0:22-cv-61394-KMM to the proceeding. The nature of suit is stated as Consumer Credit. LoanDepot -- https://www.loandepot.com/ -- sometimes stylized as loanDepot, is a Lake Forest, California-based nonbank holding company which sells mortgage and non-mortgage lending products.[BN] The Plaintiff is represented by: Jeremy Phillip Dover, Esq. DEMESMIN AND DOVER, PLLC 1650 Southeast 17th Street, Suite 100 Fort Lauderdale, FL 33316 Phone: (866) 954-6673 Email: jdover@dd-legal.com The Defendant is represented by: Joseph Andrew Apatov, Esq. MCGLINCHEY STAFFORD, PLLC 1 E. Broward Blvd., Suite 1400 Fort Lauderdale, FL 33301 Phone: (954) 356-2501 Fax: (954) 252-3808 Email: japatov@mcglinchey.com LUVATA APPLETON: Fails to Pay Proper Wages, Newman Suit Alleges --------------------------------------------------------------- WAYMAN NEWMAN, individually and on behalf of all others similarly situated, Plaintiff v. LUVATA APPLETON LLC; and MITSUBISHI MATERIALS USA CORPORATION, Defendants, Case No. 1:22-cv-00942-WCG (E.D. Wis., Aug. 17, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plantiff Newman was employed by the Defendants as staff. LUVATA APPLETON LLC provides fabricated copper products. The Company manufactures copper and metal products, as well as casting, billet and continuous extruding, drawing, annealing, and machining enabling services. [BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WN 53005 Telephone: (262) 780-1953 Facsimile: (262) 565-6469 Email: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com LUXOTTICA OF AMERICA: Gabourel Must File Class Cert Bid by Nov. 18 ------------------------------------------------------------------ In the class action lawsuit captioned as PASSION GABOUREL, individually and on behalf of all others similarly situated, v. LUXOTTICA OF AMERICA INC. d/b/a LENSCRAFTERS, an Ohio corporation; LUXOTTICA RETAIL NORTH AMERICA, INC., a business entity of unknown form; and DOES 1 through 50, inclusive, Case No. 2:22-cv-00471-FWS-MAA (C.D. Cal.), the Hon. Judge Hon. Fred W. Slaughter entered an order granting joint stipulation to extend deadline for plaintiff to file her motion for class certification. 1. The Plaintiff shall file her motion for class certification no later than November 18, 2022. 2. The Defendant shall file its opposition to Plaintiff's motion for class certification no later than January 23, 2023. 3. The Plaintiff shall her reply in support of her motion for class certification no later than February 17, 2023. Luxottica offers prescription glasses and sunglasses. A copy of the Court's order dated Aug. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3T1xwph at no extra charge.[CC] M.A.G. ENTERPRISES: Wu Sues Over Unpaid Wages, Illegal Kickbacks ---------------------------------------------------------------- LISHA WU, individually and on behalf of all others similarly situated v. M.A.G. ENTERPRISES, INC. dba THE OASIS GENTLEMEN'S CLUB, a Corporation; JOHN A. MEEHAN, an individual; and DOES 1 through 10, inclusive, Case No. 2:22-cv-03069 (E.D. Pa., Aug. 3, 2022) alleges that Oasis evades the mandatory minimum wage provisions of the Fair Labor Standards Act and illegally absconds with Plaintiff's tips and demands illegal kickbacks including in the form of "house fees." The causes of action arise from Defendants' willful actions while the Plaintiff was employed by the Defendants from 2011 to November 2020. During her time being employed by the Defendants, the Plaintiff was denied minimum wage payments as part of Defendants' scheme to classify Plaintiff and other dancers/entertainers as "independent contractors," says the suit. The Plaintiff worked at the Defendants' adult entertainment facility, The Oasis Gentlemen's Club, located at 6798 Essington Ave, Philadelphia, Pennsylvania.[BN] The Plaintiff is represented by: Daniel J. Sherry, Jr., Esq. EISENBERG, ROTHWEILER, WINKLER, EISENBERG & JECK, P.C. 1634 Spruce Street Philadelphia, PA 19106 Telephone: (215) 546-6636 Facsimile: (215) 546-0118 E-mail: daniel@erlegal.com - and - John P. Kristensen, Esq. CARPENTER & ZUCKERMAN 8827 W. Olympic Boulevard Beverly Hills, CA 90211 Telephone: (310) 273-1230 Facsimile: (310) 858-1063 E-mail: kristensen@cz.law MANKIN LAW: Denning Seeks to Certify FDCPA and State Law Class -------------------------------------------------------------- In the class action lawsuit captioned as DOUGLAS A. DENNING, on behalf of himself and others similarly situated, v. MANKIN LAW GROUP, P.A., Case No. 8:21-cv-02822-MSS-MRM (M.D. Fla.), the Plaintiff asks the Court to enter an order certifying the following two classes: -- Fair Debt Collection Practices Act (FDCPA) "All persons (a) with a Florida address (b) to whom Mankin Law Group, P.A. mailed a debt collection communication not known to be returned as undeliverable, (c) in connection with the collection of a consumer debt, (d) between December 4, 2020 and December 3, 2021, (e) that attempted to collect (i) assessments owed to Countryside North Community Association, Inc. in the amount of $125 for 2020 and/or 2021, and/or (ii) interest on such assessments. -- State Law Class "All persons (a) with a Florida address (b) to whom Mankin Law Group, P.A. mailed a debt collection communication not known to be returned as undeliverable, (c) in connection with the collection of a consumer debt, (d) between December 4, 2019 and December 3, 2021, (e) that attempted to collect (i) assessments owed to Countryside North Community Association, Inc. in the amount of $125 for 2019, 2020, and/or 2021, and/or (ii) interest on such assessments." The Plaintiff additionally requests that this Court appoint him as the representative for both proposed classes and appoint Greenwald Davidson Radbil PLLC as counsel for both proposed classes. Mankin Law is a Clearwater-based law firm that engages in debt collection activity on behalf of its condominium and homeowners' association clients. One such client is Countryside North Community Association, Inc. The Association cares for communal property surrounding several subdivisions of homes, townhomes, and condominiums, whose owners are members of the Association. By letter dated May 7, 2021, the Defendant demanded that Plaintiff pay $634.36 in delinquent Association assessments and added collection charges. In addition to demanding money, the Defendant threatened a claim of lien on the Plaintiff's home absent payment. The fear of the lien prompted the Plaintiff to pay Defendant the full amount requested within weeks of receiving the letter -- albeit under protest. Th e Plaintiff's payment to the Defendant included $250 in annual Association assessments, $125 for each of 2020 and 2021. The Defendant's collection of these assessments for the Association, however, violated state and federal law. The reason, while ultimately not germane to this Court's Rule 23 analysis, is simple: the Association hiked its annual assessments beyond its own authority. A copy of the Plaintiff's motion dated Aug. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3dSC8Oi at no extra charge.[CC] The Plaintiff is represented by: James L. Davidson, Esq. Jesse S. Johnson, Esq. GREENWALD DAVIDSON RADBIL PLLC 5550 Glades Road, Suite 500 Boca Raton, FL 33431 Telephone: (561) 826-5477 E-mail: jdavidson@gdrlawfirm.com jjohnson@gdrlawfirm.com MARATHON OIL: Fails to Pay Inspectors' OT Wages, Walker Suit Says ----------------------------------------------------------------- WILLIAM WALKER, individually and on behalf of others similarly situated v. MARATHON OIL COMPANY, Case No. 4:22-cv-02581 (S.D. Tex., Aug. 3, 2022) alleges that Marathon does not pay its inspectors as required by the Fair Labor Standards Act. According to the complaint, Marathon pays its Inspectors a flat daily rate for all hours worked in a workweek, including those in excess of 40 in a workweek. Marathon's day rate plan violates the FLSA because the Inspectors are owed overtime for hours worked in excess of 40 in a week at the rate of one-and-one-half times their regular rates, says the suit. Mr. Walker worked for Marathon as an Environmental Inspector. He brings this action to recover the unpaid overtime and other damages owed to Marathon's Inspectors. Marathon is an independent exploration and production company headquartered in Houston, Texas.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Richard M. Schreiber, Esq. JOSEPHSON DUNLAP, LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com - and - Richard J. (Rex) Burch, Esq. 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065e E-mail: rburch@brucknerburch.com MAXIM HEALTHCARE: Miller Sues to Recover Pay Losses --------------------------------------------------- Carolyn Miller, Teayl Miller, and Jennifer Reents, individually and on behalf of all others similarly situated v. MAXIM HEALTHCARE SERVICES, INC., Case No. 1:22-cv-01782-JRR (D. Md., July 20, 2022), is brought to seek recovery for the pay losses the Plaintiffs and other travelers experienced as the result of the Defendnat's predatory business practices. Travel nurses serve a valuable role in our country's healthcare system. Hospitals, clinics, and other healthcare facilities rely on skilled travel employees to fill short-term nursing employment gaps on a temporary basis. To fill these roles, healthcare facilities utilize intermediary staffing agencies to employ the travelers, negotiate pay rates, and schedule assignments. Traveling nurses have played an especially critical role since the start of the COVID-19 pandemic, as many facilities experienced severe staffing shortages that required temporary assistance in order to continue providing quality healthcare. But a troubling practice has emerged. Maxim is offering contracts to travel nurses with a fixed-term assignment at an agreed-upon pay rate. After the nurse accepts the position and starts the assignment, Maxim makes a "take-it-or-leave-it" demand to accept less pay or be terminated. Of course, most nurses have no choice but continue working the assignment at the lower rate because they have no reasonable alternatives for comparable employment: they have already incurred travel expenses, secured short-term housing, and uprooted their lives to accept the assignment. Maxim is knowingly engaging in these "bait-and-switch" practices to maintain the significant profit margins it had become accustomed to during the COVID-19 pandemic. Each Plaintiff relied on the material terms of their employment agreements including: the fixed assignment term, the payment package, and the guaranteed hours or days in accepting the offer; as the assignment had to be worth foregoing other employment, relocating, and incurring the associated professional and personal costs of accepting the travel assignment. In addition, each Plaintiff relied on the fact the foregoing material terms could not be changed without additional consideration and the reasonable expectation that Defendant would act in good faith and fair dealing and honor its promises or representations. The Plaintiffs would not have accepted the agreements had they known that Maxim would violate the terms and spirit of their agreements, says the complaint. The Plaintiffs accepted a travel assignment from Maxim to work at the Defendant's healthcare facility. Maxim is one of the leading healthcare staffing agencies in the United States.[BN] The Plaintiff is represented by: Veronica B. Nannis, Esq. JOSEPH GREENWALD & LAAKE, P.A. 6404 Ivy Lane, Ste. 400 Greenbelt, MD 20770-1417 Phone: (240) 553-1209 Facsimile: (240) 553-1748 Email: VNannis@JGLLAW.COM - and - George A. Hanson, Esq. J. Austin Moore, Esq. K. Ross Merrill, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Phone: (816) 714-7100 Facsimile: (816) 714-7101 Email: hanson@stuevesiegel.com moore@stuevesiegel.com merrill@stuevesiegel.com MDL 2824: Court Nixes Expert Testimony on Total Amount of Damages ----------------------------------------------------------------- In the case, IN RE: GOLD KING MINE RELEASE IN SAN JUAN COUNTY, COLORADO, ON AUGUST 5, 2015. This Document Relates to: No. 1:18-cv-00744-WJ-KK, Case No. 1:18-md-02824-WJ (D.N.M.), Judge William P. Johnson of the U.S. District Court for the District of New Mexico grants in part and denies in part United States' Motion to Exclude the Expert Testimony of Allen Plaintiffs' Experts Robert Unsworth and Adam Stack. The Allen Plaintiffs' experts Robert Unsworth and Adam Stack prepared an expert report, the purpose of which "is to assess the financial and economic losses that Navajo farmers and ranchers incurred" due to the release from the Gold King Mine. The United States moves the Court to exclude the testimony of Mr. Unsworth and Dr. Stack because: (i) They opine only as to the damages of the Allen Plaintiffs as a group, not the damages of any individual Allen Plaintiff; (ii) They calculated the Allen Plaintiffs' damages using simple arithmetic without assessing the reasonableness of claimed losses; (iii) They failed to consider key sources of facts and data; (iv) They failed to apply their own methodology; and (v) Their damage calculations are subject to a wide margin of error. To perform its gatekeeping function, the Court generally takes two steps. First, it determines whether the expert is qualified by "knowledge, skill, experience, training, or education" to render an opinion. The United States does not dispute Mr. Unsworth or Dr. Stack's qualifications, so Judge Johnson turns to the second step which is to decide whether their opinions are sufficiently reliable. First, the United States contends that the "pertinent inquiry here is: what is the monetary relief to which each Allen Plaintiff may be entitled as damages." It argues that Mr. Unsworth and Dr. Stack's testimony will not be helpful to the trier of fact because "they propose to testify only as to the total damage to the Allen Plaintiffs as a group. They provide no opinion as to the damage of any individual Allen Plaintiff." Mr. Unsworth and Dr. Stack "estimate that the Allen Plaintiffs' total damages, as a group, is 'between $7,348,000 and $11,891,000.'" The Allen Plaintiffs contend that "the United States' Motion inaccurately asserts that Mr. Unsworth and Dr. Stack did not calculate individualized damages." They state that Mr. Unsworth and Dr. Stack's Report contain a "very detailed damages spreadsheet" and that Mr. Unsworth and Dr. Stack calculated the damages for each Allen Plaintiff. Judge Johnson understands the Allen Plaintiffs' statement that the assessment of total damages "is the sum of their assessment of damages for each individual Allen Plaintiff, which are based on the information uniquely pertinent to each Allen plaintiff." However, their statement that the assessment of damages for each individual Allen Plaintiff is also based on "information derived from their expert assessment as a group" appears to be somewhat circular reasoning: The total damages is the sum of the individual damages which are determined in part by the total damages. If the Allen Plaintiffs mean that for some individual Allen Plaintiffs who did not have information regarding some of their damages, Mr. Unsworth and Dr. Stack estimated that information based on similar information reported by other Allen Plaintiffs, then Mr. Unsworth and Dr. Stack may testify as to how they estimated the missing information. They have not shown that their total damages as a group is relevant to each individual Allen Plaintiff's damages. Judge Johnson grants the United States' Motion to exclude Mr. Unsworth and Dr. Stack's testimony regarding the total amount of damages to the Allen Plaintiffs as a group. Second, the United States argues that Mr. Unsworth and Dr. Stack calculated the Allen Plaintiffs' damages using simple arithmetic without assessing the reasonableness of claimed losses. Mr. Unsworth and Dr. Stack's calculations of the Allen Plaintiffs' damages involved more than "using simple arithmetic." They "consulted a range of data sources to supplement information provided by the Plaintiffs." Judge Johnson opines that Mr. Unsworth and Dr. Stack's opinions will be helpful because they are based on calculations and information that most untrained laymen are not familiar with. Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute. Third, the United States contends that "Mr. Unsworth and Dr. Stack failed to consider key sources of facts and data" because they did not review the Standard Form 952 for every Allen Plaintiff, failed to speak with any of the Allen Plaintiffs and failed to consider their deposition transcripts. Mr. Unsworth and Dr. Stack based their calculations on data "primarily taken from the Court-approved questionnaires and the Standard Form 95 submitted by each Plaintiff." Judge Johnson opines that Mr. Unsworth and Dr. Stack's opinions, which are based on the information in the Plaintiff Questionnaires, are based on sufficient facts and data. Rule 702 requires that an expert's testimony be based on "sufficient facts or data;" it does not require that the testimony be based on all available facts or data. The Plaintiff Questionnaire was designed, with the participation and agreement of the United States, to obtain information that would normally be learned through discovery. Fourth, the United States asserts that Mr. Unsworth and Dr. Stack failed to apply their own methodology. Judge Johnson finds that neither Mr. Unsworth nor Dr. Stack assessed whether the Plaintiffs who provided quantified data are representative of them who did not. He does not exclude Mr. Unsworth and Dr. Stack's testimony regarding their calculation of the individual Allen Plaintiffs' damages. The United States appears to challenge the data used in the calculations, i.e. using the median values to calculate damages for individuals who reported quantitative data, not the methodology. Reliability is primarily a question of the validity of the methodology employed by an expert, not the quality of the data used in applying the methodology or the conclusions produced. Accordingly, a district court must admit expert testimony as long as it is based on a reliable methodology. It is then for the jury to evaluate the reliability of the underlying data, assumptions, and conclusions. Fifth, the United States asserts that Mr. Unsworth and Dr. Stack's damage calculations are subject to a wide margin of error. It contends that Mr. Unsworth and Dr. Stack's calculations of the Allen Plaintiffs' total damages are subject to a wide margin of error. The Court has excluded Mr. Unsworth and Dr. Stack's testimony regarding the total amount of damages to the Allen Plaintiffs as a group. Sixth, the Allen Plaintiffs contend that the United States does not address or challenge the testimony and opinions from Mr. Unsworth and Dr. Stack unrelated to economic damages that will assist the trier of fact. The United States did challenge Mr. Unsworth and Dr. Stack's opinions related to noneconomic damages. It included a quote, underlined in the preceding paragraph, from the Allen Plaintiffs' response to a motion for summary judgment. Judge Johnson grants the United States' motion to exclude Mr. Unsworth and Dr. Stack's opinions regarding noneconomic damages because those opinions will not be helpful to the jury. A jury is capable of understanding testimony regarding issues such as physical discomfort, irritation and inconvenience without an expert's help. The Allen Plaintiffs request a Daubert hearing prior to a ruling on the United States' Motion to exclude Mr. Unsworth and Dr. Stack's testimony. Because the Court is allowing the testimony of Mr. Unsworth and Dr. Stack regarding each individual Allen Plaintiff's economic damages, Judge Johnson denies the Allen Plaintiffs' request for a Daubert hearing. Judge Johnson grants in part and denies in part the United States' Motion to Exclude the Expert Testimony of Allen Plaintiffs' Experts Robert Unsworth and Adam Stack as follows: he grants regarding the total amount of damages to the Allen Plaintiffs as a group; he denies regarding the economic damages of the individual Allen Plaintiffs; and denies regarding non-economic damages. A full-text copy of the Court's Aug. 12, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/ne3m49wa from Leagle.com. METRO AIR SERVICE: Gomez Suit Removed to C.D. California -------------------------------------------------------- The case styled as Adam Gomez, an individual, on behalf of himself and on behalf of all persons similarly situated v. Metro Air Service Inc., Does 1 through 50, inclusive, Case No. 22STCV14964 was removed from the Los Angeles Superior Court, to the U.S. District Court for the Central District of California on July 20, 2022. The District Court Clerk assigned Case No. 2:22-cv-04979-SB-AS to the proceeding. The nature of suit is stated as Other Labor. Metro Air Service Inc. -- http://www.metroairservices.net/-- is a freight forwarding service in Nashville, Tennessee.[BN] The Plaintiff is represented by: Nicholas J De Blouw, Esq. Aparajit Bhowmik, Esq. Charlotte James, Esq. Kyle R. Nordrehaug, Esq. Norman B Blumenthal, Esq. Ruchira Piya Mukherjee, Esq. BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2255 Calle Clara La Jolla, CA 92037 Phone: (858) 551-1223 Fax: (858) 551-1232 Email: nick@bamlawca.com aj@bamlawca.com charlotte@bamlawca.com Kyle@bamlawca.com norm@bamlawca.com piya@bamlawca.com The Defendants are represented by: Shannon Bettis Nakabayashi, Esq. Gonzalo Morales, Esq. Julie Y. Zong, Esq. JACKSON LEWIS PC 50 California Street 9th Floor San Francisco, CA 94111-4615 Phone: (415) 394-9400 Fax: (415) 394-9401 Email: shannon.nakabayashi@jacksonlewis.com gonzalo.morales@jacksonlewis.com julie.zong@jacksonlewis.com MICHIGAN AVENUE IMMEDIATE: Cornell Files Suit in N.D. Illinois -------------------------------------------------------------- A class action lawsuit has been filed against Michigan Avenue Immediate Care, S.C. The case is styled as Richard Delano Cornell, individually, and on behalf of all others similarly situated v. Michigan Avenue Immediate Care, S.C., Case No. 1:22-cv-03885 (N.D. Ill., July 27, 2022). The nature of suit is stated as Other P.I. for Other Contract. Michigan Avenue Immediate Care, S.C. -- https://www.michiganavenueprimarycare.com/ -- is an urgent care clinic located on Michigan Avenue in Chicago, Illinois.[BN] The Plaintiff is represented by: Gary M. Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 227 West Monroe Street, Suite 2100 Chicago, IL 60606 Phone: (847) 208-4585 Email: gklinger@milberg.com - and - Nickolas J. Hagman, Esq. Daniel O. Herrera, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 135 South LaSalle Street, Suite 3210 Chicago, IL 60603 Phone: (312) 782-4880 Email: nhagman@caffertyclobes.com dherrera@caffertyclobes.com MIDDLESEX SAVINGS BANK: O'Neil Sues Over Improper Fee Charges ------------------------------------------------------------- Stephen O'Neil, on behalf of himself and all others similarly situated v. MIDDLESEX SAVINGS BANK, Case No. 22-1579 (Mass. Super. Ct., Suffolk Cty., July 12, 2022), is brought arising from its routine practices of assessing more than one insufficient funds fee ("NSF Fee") on the same transaction. The Defendant's Account Documents allow The Defendant to charge a single $35 NSF Fee when a transaction is returned for insufficient funds or paid despite insufficient funds. The Defendant breaches its Account Documents by charging more than one $35 NSF Fee on the same transaction, since the contract explicitly states--and reasonable consumers understand--that the same transaction can only incur a single NSF Fee. The Defendant's customers have been injured by the bank's improper practices to the tune of millions of dollars bilked from their accounts in violation the Defendant's clear contractual commitments. The Plaintiff seeks to end the Defendant's abusive and predatory practices and force it to refund all of these improper charges. The Plaintiff asserts a claim for breach of contract, including breach of the covenant of good faith and fair dealing, and seeks damages, restitution, and injunctive relief, says the complaint. The Plaintiff is a citizen and resident of Concord, Massachusetts. MSB is engaged in the business of providing retail banking services to Consumers.[BN] The Plaintiff is represented by: Patrick J. Sheehan, Esq. WHATLEY KALLAS, LLP 101 Federal Street, 19th Floor Boston, MA 02110 Phone: (617) 573-5118 Fax: (800)922-4851 Email: psheehan@whatleykallas.com - and - Jeffrey D. Kaliel, Esq. Sophia G. Gold, Esq. KALIELGOLD PLLC 1100 15th Street N W, 4th Floor Washington, D.C. 20005 Phone: (202) 350-4783 Email: jkaliel@kalielpllc.com sgold@kalielpllc.com MINNEAPOLIS, MN: Goyette, et al., File Bid for Class Certification ------------------------------------------------------------------ In the class action lawsuit captioned as Goyette, et al., v. City of Minneapolis et al., Case No. 0:20-cv-01302-WMW-DTS (D. Minn.), the Plaintiffs ask the Court to enter an order certifying a class inclusive of Plaintiffs and all other similarly situated journalists against the Defendants the City of Minneapolis and the Minneapolis Chief of Police in her official capacity. The Plaintiffs include Jared Goyette, Craig Lassig, Katie Nelson, Tannen Maury, Stephen Maturen, Edward Ou, Timothy Evans, Chris Tuite, and The Communications Workers of America, On behalf of themselves and other similarly situated individuals. The Defendant includes City of Minneapolis; Minneapolis Chief of Police Medaria Arradondo in his individual and official capacity; Minneapolis Police Lieutenant Robert Kroll, in his individual and official capacity; Minnesota Department of Public Safety Commissioner John Harrington, in his individual and official capacity, Minnesota State Patrol Colonel Matthew Langer, in his individual and official capacity; and John Does 1-10, in their individual and official capacities. Minneapolis is a major city in Minnesota that forms "Twin Cities" with the neighboring state capital of St. Paul. Bisected by the Mississippi River, it's known for its parks and lakes. Minneapolis is also home to many cultural landmarks like the Walker Art Center, a contemporary art museum, and the adjacent Minneapolis Sculpture Garden, famed for Claes Oldenburg's "Spoonbridge and Cherry" sculpture. A copy of the Plaintiffs' motion to certify class dated Aug. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3cbXohz at no extra charge.[CC] The Plaintiffs are represented by: Adam W. Hansen, Esq. Colin Reeves, Esq. APOLLO LAW LLC 333 Washington Avenue North, Suite 300 Minneapolis, MN 55401 Telephone: (612) 927-2969 Facsimile: (419) 793-1804 E-mail: adam@apollo-law.com - and - Karen G. Schanfield, Esq. Pari I. McGarraugh, Esq. FREDRIKSON & BYRON, P.A. 200 South Sixth Street, Suite 4000 Minneapolis, MN 55402-1425 Telephone: (612) 492-7000 E-mail: kschanfield@fredlaw.com pmcgarraugh@fredlaw.com - and - Kevin C. Riach., Esq. THE LAW OFFICE OF KEVIN C. RIACH, PLLC P.O. Box 270815 Vadnais Heights, MN 55127 Telephone: (612) 203-8555 E-mail: kevin@riachdefense.com - and - Teresa Nelson,Esq. AMERICAN CIVIL LIBERTIES UNION OF MINNESOTA P.O. Box 14720 Minneapolis, MN 55414 Telephone: (651) 529-1692 E-mail: tnelson@aclu-mn.org MP MANAGEMENT: Link Seeks Minimum & OT Wages for Delivery Drivers ----------------------------------------------------------------- Megan Link, On behalf of herself and others similarly situated v. MP Management No. 2, LLC.; MP Management No. 3, LLC; and Todd J. Kuhn, Case No. 1:22-cv-01365 (N.D. Ohio, Aug. 2, 2022) seeks appropriate monetary, declaratory, and equitable relief based on the Defendants' willful failure to compensate the Plaintiff and similarly-situated individuals with minimum and overtime wages as required by the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. The Plaintiff brings this action on behalf of herself and similarly situated current and former delivery drivers who worked for the Defendants at any point in the past three years and who elect to opt in pursuant to FLSA, to remedy violations of the FLSA wage and hour provisions by the Defendants. Plaintiff Megan Link resides in Lakewood, Ohio. She worked as a delivery driver for the Defendants' Marco's Pizza store located at 435 W Bagley Rd, Berea, Ohio from April 1, 2022 through July 15, 2022.[BN] The Plaintiff is represented by: James L. Simon, Esq. LAW OFFICES OF SIMON & SIMON 5000 Rockside Road Liberty Plaza -- Suite 520 Independence, Ohio Telephone: (216) 525-8890 E-mail: james@simonsayspay.com - and - Michael L. Fradin, Esq. THE LAW OFFICE OF MICHAEL L. FRADIN 8401 Crawford Ave. Ste. 104 Skokie, IL 60076 Telephone: (847) 644-3425 Facsimile: (847) 673-1228 E-mail: mike@fradinlaw.com MURAD LLC: Faces Seger Suit Over Unsolicited Text Ads ----------------------------------------------------- TIAGO SEGER, individually and on behalf of all others similarly situated, Plaintiff v. MURAD, LLC, Defendant, Case No. 1:22-cv-22527 (S.D. Fla., Aug. 10, 2022) is a putative class action brought against the Defendant pursuant to the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act. According to the complaint, the Defendant engages in unsolicited text messaging to promote its goods and services to those who have not provided Defendant with their prior express written consent as required by the FTSA. The Defendant also engages in telemarketing without the requisite policies and procedures and training required under the TCPA and its implementing regulations, says the suit. The Defendant's alleged telephonic sales calls have caused Plaintiff and the Class members harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy. Through this action, 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 Defendant, the suit asserts. Murad, LLC is a skincare company based in 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 MURPHY WELL: Fails to Pay Flowback Operators' OT, Escalera Claims ----------------------------------------------------------------- JOSE EXCALERA, individually and on behalf of all others similarly situated, Plaintiff v. MURPHY WELL CONTROL, LLC, Defendant, Case No. 7:22-cv-00176 (W.D. Tex., August 16, 2022) brings this collective action complaint against the Defendant for its alleged violations of the Fair Labor Standards Act. The Plaintiff was employed by the Defendant as a flowback operator from approximately July 2018 until July 2022. The Plaintiff asserts that he and other similarly situated were misclassified by the Defendant as independent contractors. Although they worked more than 40 hours per workweek, the Defendant paid them on a flat daily basis without overtime regardless of the number of hours worked per week. The Defendant failed to pay them their lawfully earned overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek, says the Plaintiff. The Plaintiff seeks unpaid overtime compensation, for himself and all other similarly situated flowback operators, against the Defendant as well as liquidated damages, reasonable attorney's fees, litigation costs and expenses, and other relief to which they may be entitled at law or in equity. Murphy Well Control, LLC provides oil and gas well monitoring services to energy companies nationwide. [BN] The Plaintiff is represented by: Beatriz Sosa-Morris, Esq. SOSA-MORRIS NEUMAN, PLLC 5612 Chaucer Drive Houston, TX 77005 Tel: (281) 885-8844 Fax: (281) 885-8813 E-mail: BSosaMorris@smnlawfirm.com MYLIFE.COM INC: Stipulation to Stay Pending Mediation Nixed ----------------------------------------------------------- In the class action lawsuit captioned as JAMES UHARRIET, et al., v. MYLIFE.COM, INC., Case No. 3:21-cv-08229-VC (N.D. Cal.), the Hon. Judge Vince Chhabria entered an order denying stipulation to stay pending mediation. The Court said,"Less than a month before the close of fact discovery, and less than two months before the motion for class certification is due, the parties filed a stipulated request to vacate all litigation deadlines because they just scheduled a mediation to take place two months from now. That request is denied. The named plaintiffs and their counsel have a responsibility to diligently pursue the case on behalf of the absent class members they hope to represent. The plaintiffs and their counsel have not shown why they could not have scheduled a mediation earlier, to take place before the close of discovery. If the parties wish to attempt to reach a settlement before the close of discovery, they are free to do so on their own or with the assistance of a mediator who might currently be available to help them." MyLife is an American information brokerage firm founded by Jeffrey Tinsley in 2002 as Reunion.com. A copy of the Court's order dated Aug. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3Az3lie at no extra charge.[CC] NEW PRIME: Parties Must Show Cause Why Class Cert Should Be Sealed ------------------------------------------------------------------ In the class action lawsuit captioned as PETER NYACHIRA, on behalf of himself and all other similarly situated persons, v. NEW PRIME, INC., Case No. 21-03211-CV-S-BP (W.D. Mo.), the Hon. Judge Beth Phillips entered an order directing the parties to show cause why suggestion in support of motion to certify class should remain sealed. The Court said,"The fact that a party marked a document as "Confidential" pursuant to the Protective Order does not, alone, justify sealing a document in derogation of that right. Judicial records may be sealed to protect privacy interests and various categories of information, including personal information, financial information, trade secrets, and confidential information where disclosure might put a party at a competitive disadvantage. However, the Court's review reveals nothing that apparently fits these categories. Most if not all the information that has been redacted and sealed consists of information that would be known to each and every driver/trainee of the Defendant, and there is no indication that those individuals are pledged to secrecy with a confidentiality agreement. The information is also extremely general and obvious. And there is no obvious explanation as to why every exhibit must be completely sealed." On July 28, 2022, and with the Court's permission, the Plaintiff filed his Suggestion in Support of Motion to Certify Class under seal, with a redacted version filed publicly. The Plaintiff also filed all thirty-seven exhibits under seal. A copy of the Court's order dated Aug. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3AvU6z1 at no extra charge.[CC] NEW YORK, NY: Perez-Pedemonti Files Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against The City of New York, et al. The case is styled as Martha Perez-Pedemonti, individually, and on behalf of all others similarly situated v. The City of New York, Joni Kletter, Sosimo Fabian, Michael Levario, in their individual capacities, Case No. 1:22-cv-06180-NRB (S.D.N.Y., July 20, 2022). The nature of suit is stated as Other Civil Rights. New York -- https://www.nyc.gov/ -- often called New York City (NYC) to distinguish it from the State of New York, is the most populous city in the United States.[BN] The Plaintiff is represented by: Cyrus E. Dugger, Esq. THE DUGGER LAW FIRM, PLLC Gotham Center 28-07 Jackson Ave., 5th Fl. Long Island City, NY 11101 Phone: (646) 560-3208 Email: cd@theduggerlawfirm.com NORTHSHORE UNIVERSITY: Ill. App. Affirms Dismissal of Kioutas Suit ------------------------------------------------------------------ In the case, ANNA KIOUTAS, individually and on behalf of all others similarly situated, Plaintiff-Appellant v. NORTHSHORE UNIVERSITY HEALTHSYSTEM, an Illinois not-for-profit corporation, individually and d/b/a NORTHSHORE HOSPITAL, Defendant-Appellee, Case No. 1-21-0438 (Ill. App.), the Appellate Court of Illinois, First District, Fifth Division, affirms the trial court's judgment granting the Defendant's motion to dismiss. On Nov. 18, 2016, Ms. Kioutas was involved in an automobile accident, where there is third-party liability. She went to NorthShore for treatment of her injuries. NorthShore placed a medical lien for Ms. Kioutas' medical expenses against any settlement she might recover from the third-party's insurer. As a result of NorthShore's action, on May 22, 2019, Ms. Kioutas filed a class action seven-count complaint in the circuit court of Cook County against NorthShore. In the complaint, she alleged that NorthShore refused to bill Medicare and her supplemental insurance carrier but instead placed medical provider liens with the third-party tortfeasor and their liability insurance carrier. She asserted that NorthShore's actions: violated the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2018)); were a breach of written contract; were a breach of implied contract and constituted unjust enrichment; and were an intentional interference with her contractual relationship with her health insurance providers. She attached to her complaint the "Agreements and Authorizations" form she signed at NorthShore, which forms the basis for her claim under the Act. In response to Ms. Kioutas' complaint, NorthShore filed a motion to strike the class allegations, as well as a motion to dismiss the complaint in its entirety, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2018)). Ms. Kioutas requested leave to file an amended complaint, which the trial court granted. In the amended complaint, she referenced exhibit A, a medical invoice which formed the basis for the medical provider lien, and exhibit B, which was the "Agreements and Authorizations" form. Both exhibits were attached to the amended complaint. Exhibit A shows that NorthShore attempted to bill Medicare, but Medicare rejected the invoice. NorthShore withdrew its original motion to dismiss and filed a new motion to dismiss pursuant to section 2-615 based on the amended complaint. In its motion to dismiss, NorthShore asserted, inter alia, that it did attempt to bill Medicare first, despite Ms. Kioutas' claims to the contrary. The trial court allowed the parties to file briefs on the motion to dismiss and held oral arguments. On Feb. 4, 2021, the trial court entered a detailed written order on the motion to dismiss. In its order, the court found that "the invoices attached to the Complaint show that NorthShore billed Medicare. Accordingly, the invoices contradict the allegations in the Complaint that NorthShore failed to bill Medicare as an asserted ground for Ms. Kioutas' claims." Despite, this finding, the court still analyzed the arguments in each of the complaint's counts on their face, assuming the veracity of each of the allegations within the counts. To address count I, the claim based on the Act, the court analyzed the Illinois Lien Act (Lien Act) (770 ILCS 23/10(a) (2018)) and relevant case law to determine that NorthShore was not required to bill Medicare before pursuing a lien against the third-party tortfeasor. Additionally, the court reviewed federal law and stated that a medical provider, "who is seeking payment from Medicare, is able to proceed against the 'primary payor,' here the tortfeasor's insurer, which is liable for the injury to the medical provider's patient. The regulations do not require the medical provider to seek payment from Medicare before proceeding against the tortfeasor's insurer." As such, the court dismissed count I of Ms. Kioutas' complaint. At the same time, the court also dismissed the remaining counts of the complaint on various grounds. The trial court continued the case for status on a final order until March 2021. On March 22, 2021, after Ms. Kioutas informed the court that she was not going to file a motion to reconsider or seek leave to amend the complaint, the court entered its final order dismissing the entire complaint with prejudice. On April 19, 2021, Ms. Kioutas filed her notice of appeal. On appeal, Ms. Kioutas argues that the trial court erred in dismissing her complaint by: (1) basing its decision on an issue not contained in the complaint; and (2) failing to consider NorthShore's "Agreements and Authorizations" form. Initially, the Court of Appeals notes, as the trial court did, that Ms. Kioutas' allegations that NorthShore did not bill Medicare first cannot be taken as true because the exhibit attached to her complaint shows otherwise. In that attached invoice, NorthShore attempted to bill Medicare, but Medicare rejected it. As such, Ms. Kioutas' claims fail to state a claim on their face because they are all based on the false allegation that Medicare was not billed initially. In other words, count I of her complaint did not state a claim since the invoice attached to the complaint directly disputed the claim made in the complaint. The court did not err in dismissing count I on the basis that her allegations were factually inaccurate and insufficient to state a claim. However, the Court of Appeals nonetheless addresses the merits of each argument raised by Ms. Kioutas, assuming her allegations could be taken as true. Ms. Kioutas argues that the trial court based its decision on an issue that was not alleged in the complaint. Specifically, she claims the trial court examined the validity of the medical lien placed on the third-party tortfeasor and the tortfeasor's liability insurance carriers. The Court of Appeals also examined whether Northshore had authority to do so. It initially notes that Ms. Kioutas did not allege in her complaint that NorthShore did not have the authority to place a medical lien on the third-party tortfeasor's liability insurance carrier and a potential settlement; rather, she alleged that NorthShore was required to bill her health insurance or Medicare first. However, despite Ms. Kioutas' argument that she now presents, the trial court did not simply overlook the issue of whether Ms. Kioutas stated a claim under the Act. Instead, it analyzed whether, when taking the allegations as true, Ms. Kioutas' complaint stated a claim. The court found that she did not based on state and federal law. Assuming arguendo that Northshore placed a medical lien against a future settlement or the tortfeasor's liability insurance before billing Ms. Kioutas' health insurance or Medicare, it would not have been a violation of the Act. Accordingly, even under those circumstances as alleged by Ms. Kioutas, she cannot state a claim under the Act on these facts. As such, the trial court did not err in dismissing count I of the complaint. Ms. Kioutas further argues that the trial court erred when making its determination by not reviewing the "Agreements and Authorizations" form that she signed. As the Court of Appeals noted, it was impossible for NorthShore to violate the Act if it complied with Illinois law. If the factual allegations in the complaint are taken as true, they still could not amount to a violation of the Act, and consequently, the court did not need to look at the "Agreements and Authorizations" form. Thus, the trial court did not err by dismissing the complaint pursuant to section 2-615, specifically as to count I, without looking at the "Agreements and Authorizations" form. The Court of Appeals, therefore, affirms the trial court's judgment dismissing Ms. Kioutas' complaint. A full-text copy of the Court's Aug. 12, 2022 Order is available at https://tinyurl.com/nhdnh23a from Leagle.com. OAK VIEW GROUP: Bour Sues Over Unpaid Compensations --------------------------------------------------- Kirstinn Bour, individually and on behalf of all others similarly situated v. Global Spectrum, L.P., Oak View Group, LLC, and Does 1 through 20, inclusive, Case No. 21CV400275 (Cal. Super. Ct., Santa Clara Cty., July 12, 2022), is brought to seek monetary relief against Defendants on behalf of herself and all others similarly situated in California to recover, among other things, unpaid wages and benefits, interest, attorneys' fees, costs and expenses. The Plaintiff alleges that Defendants have engaged in a systematic pattern of wage and hour violations unfair the California Labor Code and Industrial Welfare Commission ("IWC") Wage Orders, all of which contribute to Defendants' deliberate unfair competition. The Plaintiff is informed and believes, and thereon alleges, that the Defendants have increased their profits by violating state wages and hour laws by, among other things: failing to pay all wages (including minimum wages and overtime wages); failing to provide lawful meal periods or compensation in lieu thereof; failing to authorize or permit lawful rest breaks or provide compensation in lieu thereof; failing to provides accurate itemized wage statements; failing to pay wages timely during employment; and failing to provide all wages due upon separation of employments, says the complaint. The Plaintiff was employed by the Defendants in California during the Class Period. The Defendant provides services or goods throughout California.[BN] The Plaintiff is represented by: Samuela Wong, Esq. Kashif Haque, Esq. Jessica L. Campbell, Esq. AEGIS LAWFIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, CA 92618 Phone: (949) 379-6250 Facsimile: (949) 379-6251 Email: icampbell@aegislawfirm.com OMEGA PROJECT: Fails to Pay Workers' OT Under FLSA, Vinson Says --------------------------------------------------------------- JAMES VINSON, individually and for others similarly situated v. OMEGA PROJECT SOLUTIONS, INC., Case No. 4:22-cv-02582 (S.D. Tex., Aug. 3, 2022) is a class action seeking to recover unpaid overtime wages and other damages owed under the Fair Labor Standards Act. Omega allegedly failed to pay Mr. Vinson and other workers like him, overtime as required by the FLSA. Instead, Omega paid Vinson and other workers like him the same hourly rate for all hours worked, including those in excess of 40 in a workweek, says the suit. Throughout his employment with Omega, Vinson was paid the same hourly rate for all hours worked (including those hours in excess of 40 hours in a single workweek) with no overtime compensation, the suit added. Omega provides staffing solutions to projects ranging from engineering, power industry, oil and gas, and infrastructure and buildings.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Richard M. Schreiber, Esq. JOSEPHSON DUNLAP, LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com rschreiber@mybackwages.com - and - Richard J. (Rex) Burch, Esq. 11 Greenway Plaza, Suite 3025 Houston, Texas 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com ONE SOURCE TECHNOLOGY: Savedra FCRA Suit Removed to N.D. California ------------------------------------------------------------------- The case styled as Josephine Savedra, individually and on behalf of all others similarly situated v. One Source Technology, LLC, d/b/a Asurint, Albertsons Companies, Inc., Case No. 22-CV-398710 was removed from the Superior Court of California, County of Santa Clara, to the U.S. District Court for the Northern District of California on July 8, 2022. The District Court Clerk assigned Case No. 5:22-cv-04001-EJD to the proceeding. The lawsuit is brought over alleged violation of the Fair Credit Reporting Act. One Source Technology, LLC, doing business as Asurint -- https://www.asurint.com/ -- provides web-based employment background screening solutions.[BN] The Plaintiff is represented by: Mark Dee Potter, Esq. CENTER FOR DISABILITY ACCESS 100 Pine Street, Suite 1250 San Francisco, CA 94111 Phone: (858) 375-7385 Fax: (888) 422-5191 Email: mark@potterhandy.com - and - James Michael Treglio, Esq. POTTER HANDY, LLP 100 Pine St., Ste 1250, San Francisco, CA 94111 Phone: (619) 933-3598 Email: jtreglio@tregliolaw.com The Defendant is represented by: Mary Catherine Kamka, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP Three Embarcadero Center, Suite 800 San Francisco, CA 94111 Phone: (415) 477-5751 Fax: (415) 477-5710 Email: marykate.kamka@troutman.com - and - Rod M. Fliegel, Esq. LITTLER MENDELSON P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Phone: (415) 433-1940 Fax: (415) 399-8490 Email: rfliegel@littler.com OUR DREAM: Fails to Pay Delivery Drivers' Adequate Wages, Suit Says ------------------------------------------------------------------- RUSSELL POWELL, individually and on behalf of all others similarly situated v. OUR DREAM PIZZA, INC., Case No. 8:22-cv-02542-TMC (D.S.C., Aug. 3, 2022) seeks declaratory judgment, monetary damages, liquidated damages, costs, and a reasonable attorneys' fee, as a result of the Defendant's policy and practice of failing to pay the Plaintiff sufficient wages under the Fair Labor Standards Act and the South Carolina Payment of Wages Act. The Defendant employed Plaintiff as an hourly-paid delivery driver from July of 2016 until September of 2020. The Defendant owns and operates Domino's Pizza restaurants in South Carolina.[BN] The Plaintiff is represented by: Jacob J. Modla, Esq. THE LAW OFFICES OF JASON E. TAYLOR, P.C. 115 Elk Avenue Rock Hill, SC 29730 Telephone: (803) 328-0898 E-mail: jmodla@jasonetaylor.com - and - Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com PENNSYLVANIA: Court Awards Wallace $100-Mil. in Punitive Damages ---------------------------------------------------------------- In the case, FLORENCE WALLACE, et al., Plaintiffs v. ROBERT J. POWELL, et al., Defendants, Civil Action No. 3:09-CV-286 (M.D. Pa.), Judge Christopher C. Conner of the U.S. District Court for the Middle District of Pennsylvania awards the Plaintiffs both compensatory and punitive damages, including $100 million in punitive damages against Defendants Mark A. Ciavarella and Michael T. Conahan. Although most memories fade over the years, certain events are so punctuated by overwhelming circumstances and emotions that no amount of time can erase their mark. Tragically, for many young citizens of the Commonwealth, the day they were adjudicated delinquent by former judge, now convicted felon, Mark A. Ciavarella, is such an event. Last fall, the Court received testimony from over 300 witnesses, who testified for the very first time about their experiences between January 2003 and May 2008 in Luzerne County juvenile court. Their collective testimony paints the portrait of justice derailed by a presiding judge who ruled with breathtaking arrogance and an unfathomable disregard of due process. Mr. Ciavarella, along with his co-defendant, former judge and fellow convicted felon, Michael T. Conahan, orchestrated the shutdown of Luzerne County juvenile facilities in 2002 to make way for new detention centers. Unbeknownst to the public, however, both Ciavarella and Conahan received massive payouts for their assistance in the construction and eventual filling of the new detention centers. After these misdeeds came to light, the Plaintiffs initiated suit against various individuals and entities responsible for this scheme. The Plaintiffs filed suit in 2009 against numerous Defendants, including Ciavarella and Conahan. The operative complaints allege constitutional violations pursuant to 42 U.S.C. Section 1983, violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Section 1962, et seq., civil conspiracy, and false imprisonment. In October 2013, the clerk entered default against Conahan for failure to plead or otherwise defend. In December 2013, the Court granted the Plaintiffs' application for default judgment against Conahan on all issues of liability for which he had not been afforded judicial immunity. In January 2014, it granted their motion for partial summary judgment against Ciavarella, also on all issues for which he was not protected by judicial immunity. The Court determined Ciavarella and Conahan were both liable under Section 1983 for violating the Plaintiffs' right to an impartial tribunal as well as conspiracy to violate their right to an impartial tribunal. Judge A. Richard Caputo deferred his determination on damages for both Defendants. Between 2012 and 2015, the Court approved three sets of settlements between the Plaintiffs and many of the Defendants, except Ciavarella and Conahan, including: Robert Mericle and Mericle Construction, Inc.; Mid-Atlantic Youth Services Corp., PA Child Care, LLC, and Western Child Care, LLC; and Robert J. Powell, Vision Holdings, LLC, and Powell Law Group, P.C. In June 2020, the Plaintiffs moved for a hearing to assess damages against Ciavarella and Conahan. After several delays due to the ongoing COVID-19 pandemic, the Court received testimony in September and October 2021, to determine the Plaintiffs' damages resulting from their now-vacated juvenile adjudications by Ciavarella between Jan. 1, 2003 and May 31, 2008 in Luzerne County. In separate correspondence filed to the docket, Ciavarella and Conahan waived their right to participate at trial. The only matter pending before the Court is the issue of damages. Judge Conner now sets forth the Court's decision on damages pursuant to Federal Rules of Civil Procedure 52(a) and 55(b)(2)(B). The Court previously granted summary judgment in favor of the Plaintiffs on their claims against Defendants Ciavarella and Conahan on all issues of liability for which the Defendants were not protected by immunity. This determination of liability included, inter alia, defendants' violations of the right to an impartial tribunal as well as conspiracy to violate the Plaintiffs' right to an impartial tribunal as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. The Plaintiffs seek both compensatory and punitive damages. As to the compensatory damages, Judge Conner concludes that the Plaintiffs are entitled to compensatory damages at an initial base rate of $1,000 per day of wrongful detention. The Court has prepared a Damages Appendix which sets forth the number of days that each Plaintiff was wrongfully detained. For certain individuals who could not recall the precise length of their placements, it has estimated the number of days in detention based upon the testimony, record evidence, and the submissions of the Plaintiffs' counsel. Thereafter, Judge Conner calculated the Plaintiffs' initial aggregate awards by multiplying the number of days in detention times the base rate of $1,000. Having determined the initial aggregate award, he adjusted these awards in a final step to meaningfully reflect the unique circumstances and experiences of each Plaintiff. He emphasizes that he has carefully considered all record evidence, including multiple reviews of testimony received at trial, and he has varied the initial aggregate award to reflect his necessarily subjective view of the appropriate amount of compensatory damages for each participating Plaintiff. As to the punitive damages, Judge Conner finds that children and adolescents suffered unspeakable physical and emotional trauma at the hands of two judicial officers who swore by solemn oath to uphold the law. Instead, Ciavarella and Conahan abandoned their oath and breached the public trust. They conspired to close existing detention facilities and construct new ones in exchange for millions of dollars and the steady placement of Luzerne County youths. Their cruel and despicable actions victimized a vulnerable population of young people, many of whom were suffering from emotional issues and mental health concerns. These wrongful acts warrant punitive damages in order to achieve the objectives of deterrence and retribution. Furthermore, the circumstances of the case far exceed "a bare violation" of the Plaintiffs' constitutional right to an impartial tribunal. And due to Ciavarella and Conahan's status as former state officials, Judge Conner concludes punitive damages assist in vindicating "the public interest in preventing violations of civil rights." In arriving at an appropriate dollar amount, he is mindful of the remaining guideposts for reasonableness, namely: the disparity of the harm suffered by the Plaintiffs and the punitive damage award, and the difference between the punitive damages award and the civil penalties authorized or imposed in comparable cases. In light of the Supreme Court's specific observations that substantial compensatory awards should result in a smaller ratio between punitive and compensatory damages, he concludes that a ratio slightly less than 1:1 satisfies the strictures of due process in the instant case. Judge Conner concludes that the Plaintiffs are the tragic human casualties of a scandal of epic proportions. The law is powerless to restore to them the weeks, months, and years lost because of the actions of the Defendants. But he hopes that by listening to their experiences and acknowledging the depth of the damage done to their lives, he can provide them with a measure of closure and, with the Memorandum Opinion, ensure that their stories are never forgotten. Based on the individualized review of the record evidence, Judge Conner awards the Plaintiffs compensatory damages as set forth in the Damages Appendix. He further awards $100 million in punitive damages against Defendants Ciavarella and Conahan. An appropriate order will be issued. A full-text copy of the Court's Aug. 16, 2022 Memorandum is available at https://tinyurl.com/55bbmy8z from Leagle.com. PEOPLECONNECT INC: Abraham, et al., Seek to Certify Class --------------------------------------------------------- In the class action lawsuit captioned as LAWRENCE GEOFFREY ABRAHAM, ALICE ZHANG, WAYNE TSENG, and JAMAAL CARNEY, on behalf of themselves and all others similarly situated, v. PEOPLECONNECT, INC., a Delaware Corporation, Case No. 3:20-cv-09203-EMC (N.D. Cal.), the Plaintiffs ask the Court to enter an order: 1. certifying the following Class pursuant to Rule 23(a), Rule 23(b)(2), and Rule 23(b)(3): "All persons residing in the State of California who are not registered users of Classmates.com and whose names and yearbook photographs were searchable on the Classmates.com website at any time between December 18, 2018, and the present;" 2. appointing them as Class Representatives; and 3. appointing Morgan & Morgan LLP, Turke & Strauss LLP, and the Law Office of Benjamin R. Osborn as Class Counsel. PeopleConnect, which owns and operates the website www.classmates.com, is in the business of selling individual's names, childhood photographs, and personal information without their consent. PeopleConnect uses California residents' names and childhood photographs in advertisements promoting paid subscriptions to Classmates, the lawsuit says. The Plaintiffs' and Class members' claims arise from PeopleConnect's use of their names and yearbook photographs in public webpages designed to advertise subscriptions to Classmates.com. digital copies of yearbooks containing the names and photographs of minors belonging to millions of Californians. On December 18, 2020, Plaintiff Abraham filed a class action complaint in the United States District Court for the Northern District of California asserting claims under California's Right of Publicity Statute On December 19, 2021, at PeopleConnect's request, the Plaintiff Abraham filed an unopposed motion to stay the district court case pending resolution of PeopleConnect's arbitration appeal. On March 18, 2022, a three-judge panel of the Ninth Circuit unanimously affirmed this Court's decision denying PeopleConnect's motion to compel arbitration. On August 4, 2022, pursuant to a stipulated agreement with PeopleConnect, Plaintiffs filed a First Amended Complaint (FAC) adding Alice Zhang, Wayne Tseng, and Jamaal Carney as 15 additional named Plaintiffs and proposed Class Representatives. A copy of the Plaintiffs' motion dated Aug. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3CqXU62 at no extra charge.[CC] The Plaintiffs are represented by: Michael F. Ram, Esq. Marie N. Appel, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 711 Van Ness Avenue, Suite 500 San Francisco, CA 94102 Telephone: (415) 358-6913 Telephone: (415) 358-6293 E-mail: mram@forthepeople.com mappel@forthepeople.com - and - Raina Borrelli, Esq. Sam Strauss, Esq. TURKE & STRAUSS LLP 613 Williamson St., Suite 201 Madison, Wisconsin 53703-3515 Telephone: (608) 237-1775 Facsimile: (608) 509-4423 Michael F. Ram (SBN 104805) E-mail: raina@turkestrauss.com sam@turkestrauss.com - and - Benjamin R. Osborn, Esq. LAW OFFICE OF BENJAMIN R. OSBORN 102 Bergen St. Brooklyn, NY 11201 Telephone: (347) 645-0464 E-mail: ben@benosbornlaw.com POPPIN CAR: Olvera Sues Over Workers' Unpaid Overtime Wages ----------------------------------------------------------- DOMINGO OLVERA and EGBERTO SABANDO, on behalf of themselves and all other persons similarly situated, Plaintiffs v. POPPIN CAR WASH OF NEW JERSEY, CORP. a/k/a VAN HOUTEN CAR WASH, and DANIEL ALVAREZ, individually Defendants, Case No. 2:22-cv-04990 (D.N.J., Aug. 10, 2022) arises from the Defendants engagement in a policy and practice of requiring Plaintiffs and members of the putative collective to regularly work in excess of 40 hours per week, without providing overtime compensation as required by the Fair Labor Standards Act and the New Jersey State Wage and Hour Law. Plaintiff Olvera was employed by Defendants as a laborer, performing car washing and detailing duties from August 2019 until mid-March 2022. Plaintiff Sabando was employed by Defendants as a laborer, performing car washing, detailing, and mechanical duties from 2010 until September 2021. Poppin Car Wash of New Jersey, Corp. is a local car wash service provider based in Passaic, New Jersey.[BN] The Plaintiffs are represented by: Andrew Glenn, Esq. Jodi J. Jaffe, Esq. JAFFE GLENN LAW GROUP, P.A. 300 Carnegie Center, Suite 150 Princeton, NJ 08540 Telephone: (201) 687-9977 Facsimile: (201) 595-0308 E-mail: aglenn@jaffeglenn.com jjaffe@jaffeglenn.com PORTFOLIO RECOVERY: Suxstorf Suit Moved to Milwaukee Circuit Court ------------------------------------------------------------------ In the case, TOMAS SUXSTORF, Plaintiff v. PORTFOLIO RECOVERY ASSOCIATES LLC (E.D. Wis.), Judge Pamela Pepper of the U.S. District Court for the Eastern District of Wisconsin grants the Plaintiff's motion to remand the lawsuit to the Milwaukee County Circuit Court and his request for costs and fees incurred as a result of the removal. The Plaintiff is a resident of Milwaukee County. He says that the Defendant is a debt collection agency with its principal place of business in Norfolk, Virginia. He alleges that he received a debt collection letter from the Defendant on June 16, 2020, "regarding an alleged debt owed to it with an 'Original Creditor' listed as 'U.S. BANK NATIONAL ASSOCIATION D/B/A ELAN FINANCIAL SERVICES.'" The Defendant filed a copy of the letter. The Plaintiff says he believes the debt referred to in the letter was incurred from his use of a personal credit card. He also believes that the letter is a computer-generated form letter with information specific to him, and that the Defendant used such letters to collect alleged debts. According to the Plaintiff, the Defendant purchased his account for "as little as 4 cents per dollar, and at most 10 cents per dollar, of the face value of the account." He says he was confused and misled by the letter and that an unsophisticated consumer also would be confused and misled by the letter. He says that he was required to spend time and money investigating the letter and the consequences of his response. The Defendant has answered the complaint. It has asserted as an affirmative defense that the "Plaintiff has not incurred an injury in fact, and he does not therefore have standing under Article III of the United States Constitution to bring the instant claims." Count I of the complaint alleges that the defendant violated the FDCPA - 15 U.S.C. Sections 1692e and 1692e(10), by soliciting personal financial information for the purported purpose of determining whether he qualifies for suspended collections based on a financial hardship where the primary purpose of such information would be used for the purposes of assessing whether or not to bring a lawsuit against the Plaintiff, the letter includes representations which are false, deceptive, and misleading and communicate with the Plaintiff in a deceptive manner. Count II alleges that the Defendant violated the WCA, Wis. Stat. Section 426.110, in the same way. On Sept. 1, 2021, the Defendant removed the case from Milwaukee County Circuit Court. The Plaintiff had sued, individually and on behalf of others, for violations of the Fair Debt Collection Practices Act, 15 U.S.C. Sections 1692(a)-(e), and the Wisconsin Consumer Act, Wis. Stat. Section 421.102(2). On Sept. 16, 2021, the Plaintiff filed a motion to remand to state court, arguing that the Court lacks subject matter jurisdiction. He argued that the complaint did not allege a "concrete injury" sufficient to assert Article III standing. He also asked to award him fees incurred due to the Defendant's improper removal. The Defendant responds that the Plaintiff's claims for actual damages satisfy the concrete injury prong for Article III standing. It next argues that remand would be improper as to the class claims. Judge Pepper holds that the natural consequence of keeping this case in federal court would be that a plaintiff who lacked a concrete injury of his own would be seeking to act as the representative of a class plaintiffs who may have suffered a concrete injury. It is unlikely that a federal court would find an uninjured plaintiff adequate under Rule 23 to represent injured class members. Because the Defendant has failed to satisfy its burden of demonstrating that the Plaintiff has Article III standing to proceed in federal court, she grants the Plaintiff's motion and remands the case to Milwaukee County Circuit Court. That means Judge Pepper must consider the Plaintiff's request for fees and expenses. The Plaintiff asserts that the Defendant's choice to remove the case was objectively unreasonable given Seventh Circuit case law on Article III standing. He points out that the Defendant removed this case to federal court after the Seventh Circuit had issued numerous decisions indicating that claims like his did not state concrete injuries in fact sufficient to confer Article III standing. Judge Pepper grants the Plaintiff's request to award fees and costs. The Defendant's arguments that the Plaintiff suffered a concrete injury are curious given the third affirmative defense asserted in the answer: "PRA asserts that the Plaintiff has not incurred an injury in fact, and the Plaintiff does not therefore have standing under Article III of the United States Constitution to bring the instant claims." Its assertion that he could have crafted his complaint to avoid federal court is not persuasive or relevant. Its argument that an allegation of damages coupled with an intent to pursue those damages constitutes concrete injury is unsupported. Its failure to address any of the Seventh Circuit's decisions finding no concrete injury is troubling. Judge Pepper notes that it was objectively unreasonable for the Defendant to remove the case to federal court, because established case law was clear at the time of removal that the Plaintiff had not alleged a concrete injury sufficient to confer Article III standing. Judge Pepper orders the Defendant to pay attorneys' fees and costs under 28 U.S.C. Section 1447(c). By the end of the day on Aug. 26, 2022, the Plaintiff was to file an accounting of costs and fees. Judge Pepper orders that if the Defendant wishes to object to that accounting, it must file its objection by the end of the day on Sept. 2, 2022. A full-text copy of the Court's Aug. 12, 2022 Order is available at https://tinyurl.com/54s6dayw from Leagle.com. PRAIRIE VILLAGE: Church Mutual Wins Bid for Judgment on Pleadings ----------------------------------------------------------------- Judge Charles P. Kocoras of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants the Plaintiff's motion for judgment on the pleadings in the lawsuit styled CHURCH MUTUAL INSURANCE COMPANY, now known as CHURCH MUTUAL INSURANCE COMPANY, S.I., Plaintiff v. PRAIRIE VILLAGE SUPPORTIVE LIVING, LLC, a/k/a EAGLE's VIEW SUPPORTIVE LIVING; and BRIAN FIELD, Defendants, Case No. 21 C 3752 (N.D. Ill.). The case concerns an insurance coverage dispute between Plaintiff Church Mutual, and its insured, Defendant Prairie Village, relative to an underlying putative class action lawsuit commenced against it by its former employee, Brian Field. Mr. Field, asserting claims on behalf of himself and a yet-to-be-certified class, alleges Prairie Village unlawfully collected, used, and disseminated biometric identifiers in violation of the Biometric Information Privacy Act ("BIPA"). Church Mutual seeks a declaration that it has no duty to defend or indemnify Prairie Village with respect to Field's lawsuit and moves for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Church Mutual issued four policies to Prairie Village between April 2018 and April 2022, which included Employment Practices Liability ("EPL") Coverage and General Liability ("GL") Coverage. Church Mutual argues Field's allegations establish it does not owe Prairie Village a defense or indemnification under the following exclusions: (1) the exclusion for "violations of laws applicable to employers" within the EPL policy; (2) the "employment related practices" exclusion within the GL policy; and (3) the Cyber Liability Exclusion in the GL policy. The EPL Coverage under the Policies provide that Church Mutual will pay for "'loss' arising from any claim of injury arising out of a 'wrongful employment practice' to which this insurance applies," but has "no duty to defendant the insured against any 'suit' seeking payment for 'loss' to which this insurance does not apply." "Wrongful employment practice" is defined, in relevant part, as "any actual or alleged . . . [e]mployment related false arrest, wrongful detention or imprisonment, malicious prosecution, libel, slander, defamation of character, or invasion of privacy." The EPL policy contains an exclusion for "Violations of Laws Applicable to Employers." Church Mutual also relies on the Employment Related Practices (ERP) Exclusion to GL coverage, which states that this insurance does not apply to personal injury that arises out of any refusal to employ; termination of employment; coercion, demotion, et al.; or consequential personal injury as a result of the above. The exclusion applies where the insured is liable either as an employer or in any other capacity. The GL policy defines "personal injury" to include oral or written publication of material that violates a person's right of privacy. Finally, the Cyber Liability Exclusion of the GL coverage provides that the insurance does not apply to "3. Recording and Distribution of Material or Information in Violation of Law." "Bodily injury, property damage, personal injury, or advertising injury arising directly or indirectly out of any action or omission that violates or is alleged to violate:" a. The Telephone Consumer Protection Act (TCPA); b. The CAN-SPAM Act of 2003; c. The Fair Credit Reporting Act (FCRA), including the fair and Accurate Credit Transactions Act (FACTA); or d. Any federal, state, or local statute, ordinance, or regulation, other than the TCPA, CAN-SPAM Act of 2003, or FCRA and their amendments and additions, that addresses, prohibits, or limits the printing, dissemination, disposal, collecting, recording, sending, transmitting, communicating, or distribution of material or information. Church Mutual now moves for judgment on the pleadings under Rule 12(c), arguing it has no duty to defend or indemnify Prairie Village in the Field lawsuit based on three separate exclusions in the EPL and GL policies. Prairie Village argues that even if the exclusions under the GL policy apply, Church Mutual would still owe a duty to defend under the EPL policy. Church Mutual also moves to dismiss the counterclaims asserted against it by Field and Prairie Village. Judge Kocoras notes that in Illinois, the duty to defend is broader than the duty to indemnify, citing Am. Bankers Ins. Co. of Fla. v. Shockley, 3 F.4th 322, 327 (7th Cir. 2021). When determining whether an insurer must defend an insured, Illinois courts compare the allegations of the underlying complaint to the relevant policy provisions. If any of the complaint's allegations even potentially fall within a policy's coverage, the insurer is obligated to defend its insured. However, if the complaint does not state facts bringing the case within or potentially within coverage, there is no duty to defend. In denying Prairie Village's request for coverage, Church Mutual relies on multiple exclusions: the Violation of Laws Applicable to Employers Exclusion of the EPL policy and the ERP Exclusion and Cyber Liability Exclusion in the GL policy. The primary focus of Church Mutual's motion is on the EPL coverage. The EPL coverage provides that Church Mutual will pay for "'loss' arising from any claim of injury arising out of a 'wrongful employment practice' to which this insurance applies," but has "no duty to defendant the insured against any 'suit' seeking payment for 'loss' to which this insurance does not apply." For purposes of its motion, Church Mutual concedes Field's BIPA claim alleges a privacy-based "wrongful employment practice" as defined in the EPL coverage part. Importantly, Church Mutual argues that the EPL coverage part clearly provides that if the at-issue loss arises solely from a claim of injury constituting a "wrongful employment practice"--as Church Mutual says is the case here--only EPL coverage is relevant and no other coverage part applies. This is because the EPL coverage form provides that "Except for the insurance provided by this coverage form, the policy to which this coverage form is attached does not apply to any claim or 'suit' seeking damages arising out of any 'wrongful employment practice.'" The Defendants do not directly address Church Mutual's argument on this point, Judge Kocoras says. Nor do the Defendants argue that Field's claims do not arise from a "wrongful employment practice" as defined under the EPL coverage part. The Court agrees with Church Mutual that the EPL coverage is the only coverage that matters for purposes of this motion. Church Mutual contends Field's allegations of a wrongful employment practice trigger the Violation of Laws Applicable to Employers exclusion within the EPL coverage part. This exclusion exempts from coverage any claim arising out of ERISA or similar statute, as well as any claim based on, attributable to, or arising out of any violation of any insured's responsibilities or duties required by any other federal, state, or local statutes, rules, or regulations. Church Mutual contends BIPA is one of those statutes because it imposes responsibilities on Prairie Village. The exclusion does not apply, however, to claims under Title VII, the ADA, the ADEA, the FMLA, the Equal Pay Act, the Pregnancy Discrimination Act, the Immigration and Reform and Control Act, the Genetic Information Nondiscrimination Act, "or to any rules or regulations promulgated under any of the foregoing and amendments thereto or any similar provisions of any federal, state, or local law." The Defendants argue BIPA is "similar" to the specifically identified exempted laws because it "protects employee rights" and is thus "aligned" with those laws. Judge Kocoras points out that no other BIPA case out of this District (or any other) has construed either EPL coverage in this context, or this exclusion specifically. If someone were to add BIPA to the list of exempted statutes, "it would stick out like a sore thumb." The enumerated laws proscribe discrimination in one form or another and are applicable to (although not limited to) employers. The Court agrees with Church Mutual that the provisions of BIPA are not "similar" to any of the enumerated laws, as BIPA has nothing to do with discrimination. Rather, BIPA imposes responsibilities on all "private entities"--including employers--and "regulates the collection, use, storage, and retention of biometric identifiers and information." In other words, BIPA is categorically different than the enumerated exempted statutes, Judge Kocoras holds. The Defendants contend Church Mutual's reading of the exclusion would render EPL coverage "nearly worthless, because every potential statutory claim that conceivably could be covered as an employment practice would also be excluded as based on a law applicable to an employer." "Surely," the Defendants say, "that cannot be what the parties intended." But the Defendants' contention is belied by the plain language of exclusion, which explicitly provides that certain statutory claims are covered under the policy, Judge Kocoras points out. The underlying facts related to this case are directly related to Prairie Village's alleged violation of the responsibilities, obligations, or duties imposed by BIPA. The Court concludes that the Violation of Laws Applicable to Employers exclusion under the EPL coverage bars coverage for the underlying Field lawsuit. Because Church Mutual owes no duty to defend, it also owes no duty to indemnify. For these reasons, the Court grants Church Mutual's Motion for Judgment on the Pleadings. Church Mutual owes no duty to defend or indemnify Prairie Village in connection with the underlying lawsuit. The Defendants' Counterclaims are also dismissed. Civil case terminated. A full-text copy of the Court's Memorandum Opinion dated Aug. 11, 2022, is available at https://tinyurl.com/467zhvc6 from Leagle.com. PREMIER NUTRITION: Court to Award Montera & Class $8.3MM in Damages ------------------------------------------------------------------- In the case, MARY BETH MONTERA, Plaintiff v. PREMIER NUTRITION CORPORATION, Defendant, Case No. 16-cv-06980-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California grants the Plaintiff's motion for entry of final judgment, and concludes that the Plaintiff and the class are entitled to $8,312,450 in statutory damages and $4,583,004.90 in prejudgment interest. Plaintiff Montera brought the lawsuit on behalf of New York consumers who had purchased Joint Juice, a beverage containing glucosamine and chondroitin that is sold by Defendant Premier Nutrition. The case is one of numerous certified class actions pending before this Court alleging false advertising and other claims arising from Premier Nutrition's promotion of Joint Juice, a line of joint health dietary supplements. Each class action concerns a set of plaintiffs in a different state; this action focuses on consumers in New York. In November 2021, the Court set the case for trial on May 23, 2022, the first of these related cases to proceed to trial. A recurring issue in pretrial litigation was the availability of statutory damages for a violation of GBL Sections 349 and 350, and how statutory damages would be imposed if the jury found for the Plaintiff and the class. The first arose in the context of a Daubert motion concerning the expert testimony of Colin Weir, the Plaintiff's damages expert. The Defendant moved to exclude Weir's testimony, arguing that his calculations of statutory damages were irrelevant. It argued that the calculations were irrelevant because Weir's calculations were done on a per unit basis, and it argued that New York law only permitted statutory damages on a per person basis. While recognizing the diverging views of courts across the country on this question, the Court concluded that statutory damages were available on a per unit basis. Next, the parties disputed whether the Plaintiff had to present evidence of actual damages, since he argued statutory damages would be imposed automatically if liability were found. The relevant statutes allow a plaintiff to recover the greater of actual damages or statutory damages. They further disagreed as to whether the imposition of statutory damages was a question that needed to be put to the jury. The jury was also asked to determine the number of units sold in New York during the Class Period such that statutory damages could be calculated. After a nine-day trial, the jury reached a verdict two and half hours after the case was submitted to them for deliberation. The jury determined both that Premier Nutrition engaged in deceptive acts and practices in violation of GBL Section 349 and engaged in deceptive or misleading advertising in violation of GBL Section 350. The jury further determined that it had sold 166,249 units of Joint Juice in New York during the Class Period and that the Plaintiff and the Class should be awarded $1,488,078.49 in actual damages. The Plaintiff now brings a motion for entry of judgment, asking the Court to impose statutory damages in the amount of $50 per unit sold for violations of GBL Section 349 and $500 per unit sold for violations of GBL Section 350, as well as prejudgment interest. Premier Nutrition argues that if statutory damages are available, the Court should only award statutory damages in the amount of $50 per person. It also argues that under New York law, prejudgment interest does not apply to statutory damages. Judge Seeborg holds that the factors relevant for the consideration of whether an award of punitive damages is unconstitutionally excessive do not map perfectly onto the consideration of whether the award of statutory damages here is excessive. They are, however, a useful guide, and the award of $91,436,950 in this case is "so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable, and thus violative of the Due Process Clause. Given the mixed evidence on reprehensibility, a more appropriate award of statutory damages is $8,312,450, which would be the amount of statutory damages owed under GBL Section 349(h), $50 per unit sold. This award of statutory damages is approximately 5.59 times greater than the amount of actual damages. The parties also dispute whether prejudgment interest is available for statutory damages, and if so, when the interest should begin to accrue. The Plaintiff proposes a calculation from their damages expert, Colin Weir, using sales data. Weir calculated prejudgment interest from the purchase date (where available), and from the end of a reporting period if a retailer did not report sales on a daily basis. Considering the limited authority on this issue, Judge Seeborg holds that the imposition of prejudgment interest for the adjusted award of statutory damages in this case is appropriate. The next question is when the interest starts to accrue. The Defendant argues that interest does not accrue until the end of the class period, citing a long list of federal securities cases. The end of a class period in a securities case, however, is when the "inflation of the stock price returns to zero," and thus when the claim accrued. Here, most claims in the class accrued earlier than the last day of the class period, because the claims accrued at the time of purchase. Weir's methodology is appropriate in this situation, and notably Defendant does not challenge the reliability of his calculation other than his choice of when to begin the calculation of prejudgment interest. Further, other courts have approved similar calculations of prejudgment interest under Section 5001. The prejudgment interest is therefore awarded in the amount of $4,583,004.90. The only new argument presented in the motion to decertify is the superiority argument. The Defendant argues that a class action is not a superior method for resolving this dispute because of the amount of statutory damages available when using a per transaction calculation. For the Plaintiff to prove her case in this trial, she had to present significant amounts of scientific evidence and retain numerous experts. It is unclear how an individual plaintiff would be incentivized to undertake those costs, even if the possible recovery was in the tens of thousands of dollars. Further, the Defendant's concerns are lessened given that statutory damages will only be awarded in the amount of $50 per transaction. In short, a class action remains a superior method of adjudicating this controversy, and the motion to decertify the class is denied. For all the foregoing reasons, Judge Seeborg concludes that the Plaintiff and the class are entitled to $8,312,450 in statutory damages and $4,583,004.90 in prejudgment interest. The Defendant's motion for judgment as a matter of law is denied. Its motion to decertify the class is denied. A full-text copy of the Court's Aug. 12, 2022 Order is available at https://tinyurl.com/mr3txp68 from Leagle.com. PRIMAL FLOWBACK: Misclassifies Flowback Operators, Sylvester Says ----------------------------------------------------------------- BRANDON SYLVESTER, individually and on behalf of all others similarly situated, Plaintiff v. PRIMAL FLOWBACK & RENTALS, LLC, Defendant, Case No. 1:22-cv-00122-H (N.D. Tex., Aug. 10, 2022) arises from the Defendant's conduct of misclassifying Plaintiff as an independent contractor and as such paying him a flat daily rate for his substantial regular and overtime hours in violation of the Fair Labor Standards Act. Plaintiff Sylvester worked for the Defendant from approximately February to May of 2022 as flowback operator. He asserts that the Defendant paid him and FLSA Class Members on a flat daily basis without overtime regardless of the number of hours worked per week, despite scheduling and requiring work well in excess of 40 hours per week. Primal Flowback & Rentals, LLC provides oil and gas well monitoring services to energy companies across the U.S.[BN] The Plaintiff is represented by: Beatriz-Sosa Morris, Esq. SOSA-MORRIS NEUMAN, PLLC 5612 Chaucer Drive Houston, TX 77005 Telephone: (281) 885-8844 Facsimile: (281) 885-8813 E-mail: BSosaMorris@smnlawfirm.com PROGRESSIVE DIRECT: Alleges Improper Insurance Business Practices ----------------------------------------------------------------- GARY YAGHYAZARIAN, individually and on behalf of all others similarly situated, Plaintiff v. PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant, Case No. 2:22-cv-01339 (D. Nev., Aug. 17, 2022) is a class action on behalf of the Plaintiff and all other similarly situated claimants in Nevada who received a payment for the loss of a totaled vehicle from Defendant, where the Defendant used valuation reports prepared by Mitchell International, Inc. ("Mitchell") to determine the actual cash value ("ACV") of the loss vehicles. The Plaintiff alleges in the complaint that through Mitchell's valuation, Defendant systemically thumbs the scale when calculating the ACV of claimants' loss vehicles by applying so-called "Projected Sold Adjustments" that are: (a) arbitrary; (b) contrary to appraisal standards and methodologies; (c) not based in fact, as they are contrary to the used car industry's market pricing and inventory management practices; (d) not applied by the major competitor of Defendant's vendor Mitchell; and (e) not applied by the Defendant and Mitchell to insureds in other states like California and Washington. In the event of a "total loss" to an insured vehicle, i.e., where repair of the vehicle is impossible or uneconomical, the Defendant's uniform insurance policies with the Plaintiff and all putative Class members promises to pay for the loss, limited to the ACV of the vehicle. When valuing total loss claims for vehicles, it is improper for an automobile insurance company, such as Progressive, to undervalue and underpay the claims by manipulating the data used to determine the ACV of the vehicles, says the suit. Progressive Direct Insurance Company operates as an insurance company. The Company underwrites auto, fire, marine, and casualty insurance. [BN] The Plaintiff is represented by: Gustavo Ponce, Esq. Mona Amini, Esq. KAZEROUNI LAW GROUP, APC 6069 South Fort Apache Road, Suite 100 Las Vegas, NV 89148 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 Email: gustavo@kazlg.com mona@kazlg.com -and- Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 Email: ashamis@shamisgentile.com -and- Scott Edelsberg, Esq. Christopher Gold, Esq. EDELSBERG LAW, P.A. 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Telephone: (786) 289-9471 Facsimile: (786) 623-0915 Email: scott@edelsberglaw.com chris@edelsberglaw.com PROMISES BEHAVIORAL: Cody Alleges Wiretapping of Website Visitors ----------------------------------------------------------------- ANNETTE CODY, individually and on behalf of all others similarly situated, Plaintiff v. PROMISES BEHAVIORAL HEALTH, LLC; and DOES 1 THROUGH 25, INCLUSIVE, Defendants, Case No. 8:22-cv-01529-FWS-JDE (C.D. Cal., Aug. 16, 2022) is an action against the Defendants for illegal wiretapping of electronic communications through the Defendant's website, www.recoveryranchpa.com (the "Website") in violation of California Invasion of Privacy Act ("CIPA"). The Plaintiff alleges in the complaint that unknown to visitors to the Website, the Defendant has secretly deployed "keystroke monitoring" software that Defendant uses to surreptitiously intercept, monitor, and record communications made through the chat feature on the Website. The Defendant neither informs visitors nor obtains their express consent prior to this wiretapping. Defendant then shares the intercepted communications with at least one third party, says the Plaintiff. PROMISES BEHAVIORAL HEALTH, LLC provides addiction and mental health treatment. [BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS A Professional Corporation 4100 Newport Place Drive, Ste. 800 Newport Beach, CA 92660 Telephone: (949) 706-6464 Facsimile: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com PRUSSIAN INC: Wang Seeks Minimum & OT Wages Under FLSA, NYLL ------------------------------------------------------------ ZHIHENG WANG, individually and on behalf of all others similarly situated v. PRUSSIAN, INC. and MIKE YIN LIANG, Case No. 1:22-cv-04576 (E.D.N.Y., Aug. 3, 2022) seeks relief from all Defendants for unlawful actions, including compensation for unpaid minimum wages, overtime wages, spread-of-hours pay, liquidated damages, pre-judgment and post-judgment interest, statutory damages for wage notice and pay statement violations, and attorneys' fees and costs, pursuant to the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Defendants allegedly maintained a pattern and practice of failing to pay Plaintiff Wang and other similarly situated non-exempt employees the minimum wage rate for all hours worked, the overtime rate of one-and-one half times the regular hourly rate/applicable minimum wage rate for all hours worked in excess of forty per week and spread-of-hours pay for each workday their shift or shifts exceeded 10 hours per day. From December 22, 2021 to June 6, 2022, the Plaintiff Wang was employed by Defendant Prussian. Plaintiff Wang worked for Prussian as a remote employee working out of Brooklyn, New York.[BN] The Plaintiff is represented by: Robert D. Salaman, Esq. AKIN LAW GROUP PLLC 45 Broadway, Suite 1420 New York, NY 10006 Telephone: (212) 825-1400 Facsimile: (212) 825-1440 E-mail: rob@akinlaws.com PUBLIX SUPERMARKETS: M.D. Florida Dismisses Amara Consumer Suit --------------------------------------------------------------- In the case, PHILIP AMARA, Plaintiff v. PUBLIX SUPERMARKETS, INC., Defendants, Case No. 8:22-cv-367-VMC-JSS (M.D. Fla.), Judge Virginia M. Hernandez Covington of the U.S. District Court for the Middle District of Florida, Tampa Division, grants Publix's Motion to Dismiss. Publix manufactures, labels, markets, and sells an antitussive drug product (a cough suppressant) promoted and labeled as "non-drowsy." According to the complaint, despite being labeled as "non-drowsy," the Product contains an ingredient (dextromethorphan hydrobromide ("DXM")), that Amara alleges is well known for causing drowsiness. Amara purchased the Product, relying on its "non-drowsy" labeling. He claims that he would not have bought the Product, or would paid less for it, had he known it contained an ingredient that caused drowsiness. Based on these allegations, Amara brings the putative class action lawsuit, alleging the following causes of action: (1) violation of the Florida Deceptive and Unfair Trade Practices Act; (2) violation of various other states' consumer fraud laws; (3) breach of contract; (4) breach of express warranty; (5) breach of the implied warranty of merchantability/fitness for a particular purpose; (6) violation of the Magnuson Moss Warranty Act; (7) negligent misrepresentation; (8) fraud; and (9) unjust enrichment. Publix now seeks dismissal of all counts with prejudice. It argues that the complaint should be dismissed for three independent reasons. First, pursuant to Rule 12(b)(1), it argues that the complaint should be dismissed because Amara has not sustained an injury-in-fact and therefore lacks standing. Second, Publix maintains that Amara's claims are expressly preempted by federal law. Finally, it argues that Amara has failed to plead facts demonstrating that the "non-drowsy" statement on the label is false, deceptive, or misleading. Mr. Amara has responded. As to standing, Judge Covington holds that while Publix argues that Amara needed to plead an actual price differential, it does not point to any binding authority on this point. Thus, for standing purposes, Amara has adequately pled a concrete economic injury in fact. Accordingly, Publix's Motion is denied on this ground. Judge Covington further holds that Amara has not alleged any future harm to himself that is real and immediate and/or certainly impending. Instead, he offers only a speculative and conjectural statement that he intends to purchase the Product at some uncertain future date. As Amara fails to allege any threat of imminent future injury to himself, he lacks standing to pursue injunctive relief. As a result, Publix's Motion is granted with respect to Amara's requests for injunctive relief. As to federal preemption, Judge Covington finds that the Monograph does not require a disclosure of "drowsiness" as a side effect for products that contain DXM. In light of the Monograph, contained within the federal regulations, he holds that the federal government has established requirements applicable to the Product at issue, which guidance includes the potential drowsiness side effects of certain antitussive medications. Judge Covington also finds that Lawson-Ross v. Great Lakes Higher Education Corp., 955 F.3d 908 (11th Cir. 2020). (Id.) is readily distinguishable -- it dealt with an entirely different statute (the Higher Education Act), which merely preempted state laws requiring student loan servicers to make additional disclosures beyond what the federal statute required. Because the plaintiff there sought to attack affirmative misrepresentations made by loan servicers, the claims fell outside of the statute's preemption language. The case law that is more on point, dealing with the FDCA, leads to the conclusion that Amara's state-law claims are preempted. Moreover, the main thrust of Amara's complaint, and every count within that complaint, is that the Product's labeling as "non-drowsy" is false and misleading. Amara would have this Court hold Publix liable for labeling the product "non-drowsy" when such labeling complies with the FDA's Monograph. All of Amara's state-law claims are preempted by the FDCA because they seek to impose a labeling requirement that is "different from or in addition to, or that is otherwise not identical with, a requirement" for OTC drugs in the applicable regulations. Judge Covington also holds that Amara brought only one claim under federal law -- his MMWA claim. But a breach of warranty claim under the MMWA is dependent upon a viable underlying state breach of warranty claim. As the underlying state-law warranty claims are due to be dismissed, the MMWA claim will be dismissed as well. Additionally, Amara fails to meet the requirement under the MMWA that the amount in controversy for any individual claim exceeds $25, 15 U.S.C. Section 2310(d)(3)(A), since he claims he purchased the product for approximately $4.99. Finally, because federal preemption cannot be cured by amendment, Judge Covington grants dismissal of the case with prejudice. Accordingly, the Motion to Dismiss is granted. The Plaintiff's claims are dismissed with prejudice. The Clerk is directed to terminate any pending motions or deadlines and thereafter close the case. A full-text copy of the Court's Aug. 12, 2022 Order is available at https://tinyurl.com/2n3892t8 from Leagle.com. QUEST DIAGNOSTICS: Perlin Sues Over Illegal Medical Debt Collection ------------------------------------------------------------------- JULIA PERLIN, on behalf of herself and all others similarly situated, Plaintiff v. QUEST DIAGNOSTICS, a foreign corporation, and CCS GLOBAL HOLDINGS, INC., a foreign corporation, Defendants, Case No. CACE-22-011811 (Fla. Cir., 17th Judicial, Broward Cty., Aug. 10, 2022) is a class action for damages and other legal and equitable remedies resulting from the Defendants' violations of the Florida Consumer Collection Practices Act. The case arises from the Defendants' abusive and illegal medical-debt collection practices. The Defendants allegedly billed Plaintiff for medical services rendered in contravention of Florida's Workers' Compensation statute and therefore in violation of the FCCPA, says the suit. Quest Diagnostics is a conglomerate clinical company that provide laboratory services to consumers across the U.S., Mexico, and Brazil. CCS Global Holdings is a debt collector.[BN] The Plaintiff is represented by: Evan M. Rosen, Esq. LAW OFFICES OF EVAN M. ROSEN, P.A. 2719 Hollywood Boulevard, B-224 Hollywood, FL 33020 Telephone: (754) 400-5150 Facsimile: (954) 400-5260 E-mail: erosen@evanmrosen.com - and - J. Dennis Card, Jr. Esq. CONSUMER LAW ORGANIZATION, P.A. 721 US Highway 1, Suite 201 North Palm Beach, FL 33408 Telephone: (561) 822-3446 Facsimile: (305) 574-0132 E-mail: dennis@cloorg.com - and - Jordan A. Shaw, Esq. Kimberly A. Slaven-Hauth, Esq. ZEBERSKY PAYNE SHAW LEWENZ, LLP 110 SE 6th Street, Suite 2900 Fort Lauderdale, FL 33301 Telephone: (954) 989-6333 Facsimile: (954) 989-7781 E-mail: jshaw@zpllp.com kslaven@zpllp.com QUONTIC BANK: Scheduling Order Entered in Sapan Class Action ------------------------------------------------------------- In the class action lawsuit captioned as Paul Sapan v. Quontic Bank, et al., Case No. 8:22-cv-00849-CJC-ADS (C.D. Cal.), the Hon. Judge Cormac J. Carney entered a scheduling order as follows: 1. All discovery, including discovery motions, shall be completed by December 28, 2023. Discovery motions must be filed and heard prior to this date. 2. The parties shall have until February 26, 2024 to file and have heard all other motions, including motions to join or amend the pleadings. 3. A pretrial conference will be held on Monday, April 29, 2024 at 03:00 PM. 4. The case is set for a jury trial, Tuesday, May 7, 2024 at 08:30 AM. 5. The parties are referred to ADR Procedure No. 2 – Court Mediation Panel. The parties shall have until January 11, 2024 to conduct settlement proceedings. The parties shall file with the Court a Joint Status Report no later than five days after the ADR proceeding is completed advising the Court of their settlement 5 and status. 6. The Plaintiff shall have until July 31, 2023 to file and have heard any class certification motion. Quontic is a U.S.-based bank headquartered in Manhattan, New York City. Quontic has additional locations in Astoria, New York; Melville, New York; Flushing, New York; and Miami, Florida. A copy of the Court's order dated Aug. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3dJeOTn at no extra charge.[CC] RAINBOW REALTY: Wins Cross-Motion for Summary Judgment in FHC Suit ------------------------------------------------------------------ In the case, FAIR HOUSING CENTER OF CENTRAL INDIANA, INC., MORY KAMANO, NORMA TEJEDA, CORDELL SPENCER, MARIA GASPAR, and FRANKLIN PAZ, Plaintiffs v. RAINBOW REALTY GROUP, INC., EMPIRE HOLDING CORP., JAMES R. HOTKA, SUNSHINE TRUST, REDSKINS TRUST, SPORTING TRUST, ALLEY CAT TRUST, SHORE WATERS DEVELOPMENT, LLC, and SUNFLOWER TRUST, Defendants, Case No. 1:17-cv-01782-JMS-TAB (S.D. Ind.), Judge James Magnus-Stinson of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, denies the Plaintiffs' Motion for Partial Summary Judgment and grants the Defendants' Cross-Motion for Summary Judgment. The Named Plaintiffs all entered into agreements with Rainbow and various other entities (collectively, "the Defendant Entities") to rent to buy properties in Indianapolis, Indiana ("the RTB Agreements"). Plaintiff Fair Housing Center of Central Indiana, Inc. ("FHC") and the Named Plaintiffs allege that the RTB Program was designed to entice vulnerable consumers living in predominantly Black and Latino neighborhoods to enter into the RTB Agreements, which represented overpriced transactions, by promising them homeownership. They allege that most of the rent-to-buy transactions failed within the first two years and the consumers were evicted. On behalf of themselves and a class consisting of all individuals who "entered a rent-to-buy agreement with Rainbow for a residential property since the beginning of 2009, excluding those who successfully paid off their agreement," the Plaintiffs assert various claims under the Equal Credit Opportunity Act, 15 U.S.C. Section 1691, et seq., the Fair Housing Act, 42 U.S.C. Section 3601, et seq., the Truth in Lending Act, 15 U.S.C. Section 1639, and Indiana statutes. Rainbow is a corporation that buys, sells, and manages real estate. When properties are purchased for the RTB Program, Defendant Hotka, who is the principal actor in connection with all of the Defendant entities, creates land trusts to which he deeds the newly-purchased properties ("the Individual Land Trusts"). Each Individual Land Trust is generally assigned one house. Each Named Plaintiff purchased a house through the RTB Program that Mr. Hotka had deeded to a different Individual Land Trust - Clifton Trust owned the house that is the subject of Ms. Gaspar's RTB Agreement; Musial Trust owned the house that is the subject of Ms. Tejeda's RTB Agreement; Degraff Trust owned the house that is the subject of Mr. Paz's RTB Agreement; Chief Trust owned the house that is the subject of Mr. Kamano's RTB Agreement; and Hanway Trust owned the house that is the subject of Mr. Spencer's RTB Agreement. The Plaintiffs have not named Clifton Trust, Musial Trust, Degraff Trust, Chief Trust, or Hanway Trust as Defendants. Defendant Empire is the trustee for Defendants Sunshine Trust, Redskins Trust, Sporting Trust, Alley Cat Trust, and Sunflower Trust (collectively, "the Family Trusts") and for the Individual Land Trusts, and also has a bank account which is used for holding money when properties are bought and sold. Defendant Shore Waters is the beneficiary of the Individual Land Trusts. Mr. Hotka's four children are the sole members of Shore Waters. Prior to the establishment of Shore Waters, the five Family Trusts performed the function that Shore Waters currently performs and the Family Trusts were beneficiaries of the Individual Land Trusts. Mr. Hotka is the sole shareholder, final decision-maker, and holder of every director-level position for both Rainbow and Empire. The Plaintiffs initiated the lawsuit on May 30, 2017, and filed the operative Third Amended Class Action Complaint on March 8, 2019. After the Court granted summary judgment dismissing some of the Plaintiffs' claims and ruled on their Motion for Class Certification, remaining are: (1) individual and class claims for violation of the ECOA, 15 U.S.C. Section 1691(a)(1); (2) individual and class claims for disparate treatment and disparate impact under the FHA, 42 U.S.C. Section 3604(a) and (b) and Section 3605; (3) individual claims for violation of TILA (ability to repay), 15 U.S.C. Section 1639c(a); (4) individual and class claims for violation of TILA (pre-loan counseling), 15 U.S.C. Section 1639(u); (5) individual and class claims for violation of TILA (mandatory disclosure), 15 U.S.C. Section 1639(a); (6) individual and class claims for violation of TILA (appraisal), 15 U.S.C. Section 1639h; and (7) individual claims for violations of various Indiana Code provisions. Plaintiffs Gaspar, Tejeda, and Paz move for summary judgment on their TILA claims. The Defendants move for summary judgment on all of the Plaintiffs' federal claims, except their FHA disparate treatment claim. As for their TILA claims, the Plaintiffs set forth the following: (1) failure to comply with Section 1639c(a)'s ability-to-repay provision on behalf of Ms. Gaspar, Ms. Tejeda, and Mr. Paz; (2) violation of Section 1639(u)'s pre-loan counseling requirement on behalf of Ms. Gaspar and Ms. Tejeda; (3) violation of Section 1639(a)'s mandatory disclosure requirement on behalf of Ms. Gaspar and Ms. Tejeda; and (4) violation of Section 1639h's appraisal requirement on behalf of Ms. Tejeda and Mr. Paz. Judge Magnus-Stinson finds that the RTB Agreements are lease agreements for the first two years and, consequently, TILA does not apply to them during that time period and Ms. Tejeda's TILA claims fail as a matter of law because her relationship with Defendants did not last past that two-year mark. Further, he finds -- assuming without deciding that TILA applies to the RTB Agreements after the initial two-year period -- that Rainbow is not a "creditor" subject to TILA and the doctrine of piercing the corporate veil does not apply to the circumstances of the case, so the Plaintiffs lack standing to assert their TILA claims because they have not sued the entities who could potentially be held liable under TILA. Accordingly, JUdge Magnus-Stinson denies the Plaintiffs' Motion for Partial Summary Judgment and grants the Defendants' Cross-Motion for Summary Judgment on the Plaintiffs' individual and class TILA claims. As for their ECOA claims, the Plaintiffs allege that the Defendants have violated the ECOA because the Plaintiffs are "applicants" and Defendants are "creditors" within the meaning of the ECOA, and the Defendants' "acts, policies, and practices are intentionally discriminatory on the basis of race, color, and/or national origin with respect to aspects of credit transactions, and constitute reverse redlining," and "have a disparate impact on the basis of race, color, and/or national origin." The Defendants move for summary judgment on this claim, but the Plaintiffs do not. They argue in support of their Cross-Motion for Summary Judgment that the ECOA does not apply to them because the RTB Agreements are leases until a land contract is executed. They point to Rainbow Realty Grp., Inc. v. Carter, 131 N.E.3d 168 (Ind. 2019), making the same arguments they make in connection with the Plaintiffs' TILA claims, and assert that, in any event, the Plaintiffs are not "applicants" and Defendants are not "creditors" under the ECOA. Similar to their TILA claims, Judge Magnus-Stinson holds that any claims the Plaintiffs assert under the ECOA fail as a matter of law because Rainbow is not a creditor and Plaintiffs have not named the only entities who could potentially be considered creditors. Rainbow is the landlord during the first two years of the RTB Agreements, when the Agreements are residential leases, and Rainbow's involvement in the RTB transactions ends at the conclusion of that two-year period. Assuming without deciding that the ECOA would apply to the RTB transactions when the two years is up and the consumers sign Conditional Sales Contracts, the only entities that could arguably be considered creditors are the Individual Land Trusts as the sellers and parties to the Conditional Sales Contracts. As discussed, the Plaintiffs have not named the Individual Land Trusts as the Defendants and have not met their burden of showing that it would be appropriate for the Court to pierce the corporate veil to somehow hold the named Defendants liable for the non-party Individual Land Trusts' actions. Accordingly, their ECOA claims fails as a matter of law because they have not named the parties who have caused their alleged harm and Judge Magnus-Stinson grants the Defendants' Cross-Motion for Summary Judgment on the Plaintiffs' individual and class ECOA claims. In their Cross-Motion for Summary Judgment, the Defendants argue that the Plaintiffs' FHA claims fail as a matter of law because, although the U.S. Supreme Court has recognized disparate impact claims under the FHA, the racial disparity must have been created by the defendant. They assert that "despite their over-the-top allegations and despite all of their bluster, the Plaintiffs cannot escape the simple, unavoidable fact that the Defendants do not control which of their offers to purchase homes for the RTB Program are accepted." They argue that they "make offers on all properties that are listed for under $30,000, offer one-third of the asking price, do little to no negotiation, and if those offers are accepted the property is purchased. They cannot control which offers are accepted or where." In response, the Plaintiffs argue that the Defendants do not address their disparate treatment claim under the FHA, but focus only on their disparate impact claim. They contend that the Defendants "have provided no evidence suggesting that the observed disproportionate effect is caused by sellers in communities of color being more likely to accept their undervalued bids as compared to sellers in white communities." Because the Defendants did not create the statistical disparity upon which the Plaintiffs rely, and since the Defendants' business goal of purchasing homes below a certain threshold is a valid, non-discriminatory interest, Judge Magnus-Stinson grants the Defendants' Cross-Motion for Summary Judgment on the Plaintiffs' individual and class FHA disparate impact claims. Finally, several motions and an objection remain pending, including the Defendants' Preliminary Objections to Plaintiffs' Potential Expert Testimony; the Plaintiffs' Combined Motion in Limine to Exclude Certain Evidence From Admission at Trial; the Defendants' Motions in Limine; and the Plaintiffs' Motion for Leave to Amend Plaintiffs' Trial Witness List and Case-Specific Jury Instructions. Judge Magnus-Stinson is mindful that his Order significantly changes the landscape of the case, and that these remaining motions may or may not be relevant in that new landscape. Accordingly, he denies the remaining motions and overrules the objection, without prejudice to re-file them. If a party wishes to re-file the motions or objection, it must do so no later than Sept. 10, 2022. Any responses are due no later than Sept. 17, 2022. No replies are necessary. For the foregoing reasons, Judge Magnus-Stinson denies the Plaintiffs' Motion for Partial Summary Judgment, and grants the Defendants' Cross-Motion Motion for Summary Judgment, to the extent it finds that summary judgment in favor of the Defendants is appropriate on the Plaintiffs' individual and class TILA claims, their individual and class ECOA claims, and their individual and class FHA disparate impact claims. No partial final judgment will issue. Judge Magnus-Stinson denies the Plaintiffs' Combined Motion in Limine to Exclude Certain Evidence From Admission at Trial; the Defendants' Motions in Limine; and the Plaintiffs' Motion for Leave to Amend Plaintiffs' Trial Witness List and Case-Specific Jury Instructions, and overrules the Defendants' Preliminary Objections to Plaintiffs' Potential Expert Testimony, without prejudice to re-file them by Sept. 10, 2022. Any responses must be filed by Sept. 17, 2022 and no replies are necessary. Based on this ruling, the March 27, 2020 Opinion and Order on the Plaintiffs' Motion for Class Certification, and the March 10, 2021 Opinion and Order on the Defendants' Motion for Partial Summary Judgment, the following claims will proceed: a. The Plaintiffs' individual claims for disparate treatment under the FHA seeking declaratory, injunctive, and compensatory relief; b. The Plaintiffs' class claims for disparate treatment under the FHA seeking declaratory and injunctive relief; c. The Plaintiffs' individual claims under Ind. Code Section 32-31-8-5 for failing to deliver homes in habitable conditions seeking declaratory, injunctive, and compensatory relief; and d. The Plaintiffs' individual claims under Ind. Code Section 24-9-3-7(c) for declaratory, injunctive, and compensatory relief related to: e. Misrepresentations regarding the condition of homes in the RTB Program; f. The standard contract terms being confusing, contradictory, and reviewed quickly at the time of signing the RTB Agreements so buyers did not understand the major provisions of the RTB Agreements; and g. The provision regarding the rent-to-buy nature of the RTB Agreement being deceptive. Judge Magnus-Stinson requests that the Magistrate Judge confers with the parties as soon as practicable regarding the resolution of these remaining claims short of the Oct. 17, 2022 trial in the matter. A full-text copy of the Court's Aug. 12, 2022 Order is available at https://tinyurl.com/yfuk982n from Leagle.com. RAVALLI COUNTY, MT: Oral Argument on Pending Bids Set for Sept. 7 ----------------------------------------------------------------- In the class action lawsuit captioned as TERI LEA EVENSON-CHILDS, DANIEL O'TOOLE, RICHARD CHURCHILL, and KEITH LEONARD, individually and on behalf of all others similarly situated, v. RAVALLI COUNTY; STEPHEN HOLTON, in his official capacity as RAVALLI COUNTY SHERIFF; JENNIFER RAY, in her official capacity as RAVALLI COUNTY JUSTICE OF THE PEACE; JIM BAILEY, in his official capacity as RAVALLI COUNTY JUSTICE OF THE PEACE; HOWARD RECHT, in his official capacity as DISTRICT JUDGE FOR THE 21ST JUDICIAL DISTRICT; and JENNIFER LINT, in her official capacity as DISTRICT JUDGE FOR THE 21ST JUDICIAL DISTRICT, Case No. 9:21-cv-00089-DLC-KLD (D. Mont.), the Hon. Judge Kathleen L. DeSoto entered an order that the oral argument on all pending motions is scheduled for September 7, 2022 at 9:00 a.m. at the Russell Smith Courthouse, 201 E. Broadway, in Missoula. Ravalli County is a county in the southwestern part of the U.S. state of Montana. As of the 2020 census, the population was 44,174. Its county seat is Hamilton. Ravalli County is part of a north–south mountain valley bordered by the Sapphire Mountains on the East and the Bitterroot Mountains on the West. A copy of the Court's order dated Aug. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3weSZkT at no extra charge.[CC] RECKITT BENCKISER: Digiacinto Sues Over Mislabeled Cough Products ----------------------------------------------------------------- JOSEPH DIGIACINTO, individually and on behalf of all others similarly situated, Plaintiff v. RECKITT BENCKISER, LLC, Defendant, Case No. 3:22-cv-04690-DMR (N.D. Cal., Aug. 16, 2022) alleges Defendant's violation of the California Consumer Legal Remedies ("CLRA"), Unfair Competition Law ("UCL"), and False Advertising Law ("FAL"). According to the complaint the Defendant makes, distributes, sells, and markets "Children's Delsym Cough Relief." The Defendant sells two separate Delsym Cough Relief products: one advertised for adults, and one advertised for children. The Delsym product marketed for children has an image of a cartoon child and the word "children" written on the front label of the product, while the one marketed for adults does not contain an image of a child or the word "children" anywhere on the label, says the suit. These representations lead reasonable consumers to believe that the cough relief product advertised for adults is suitable only for adults and the cough relief product advertised for children is suitable for children. Based on this reasonable belief, consumers are willing to pay more for the children's product. Reasonable consumers are willing to pay more for the Children's Delsym Cough Relief product because they want a product that is specifically formulated for children and is guaranteed to be safe for children to consume. The truth, however, is that the adult's Delsym Cough Relief product has the exact same formula and ingredients as the Children's Delsym Cough Relief product. Defendant puts the same cough syrup into two different products with different labels. Consumers are being deceived and overcharged, the suit asserts. The Plaintiff read and relied upon Defendant's advertising when purchasing the Product and was allegedly damaged as a result. RECKITT BENCKISER, LLC manufactures cleaning products. The Company produces cleaners, disinfectants, and deodorizers for household use. Reckitt Benckiser's products serve the chemical and household products industries. The Plaintiff is represented by: Ronald A. Marron, Esq. Michael T. Houchin, Esq. Lilach Halperin, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Email: ron@consumersadvocates.com mike@consumersadvocates.com lilach@consumersadvocates.com RECREONICS INC: Court Enters Consent Decree in Feliz Class Suit --------------------------------------------------------------- Judge Valerie Caproni of the U.S. District Court for the Southern District of New York approves the Parties' Consent Decree in the case, ROBERTA FELIZ, Individually, and on Behalf of All Others Similarly Situated, Plaintiff v. RECREONICS, INC., Defendant, Case No. 1:22-CV-03979-VEC (S.D.N.Y.). The Plaintiff filed the lawsuit, alleging that the Defendant's website: https://Recreonics.com/ is not fully accessible to individuals with disabilities in violation of Title III of the Americans with Disabilities Act of 1990, and the New York City Human Rights Law. The Defendant expressly denies that the Website violates any federal, state or local law, including the ADA, NYSHRL, and the NYCHRL, and any other wrongdoing or liability whatsoever. The Plaintiff alleges that the Defendant is a private entity that owns and/or operates the Website which is available through the internet to personal computers, laptops, mobile devices, tablets, and other similar technology. She contends that its Website is a service, privilege, or advantage of the Defendant's physical location, thus rendering it a public accommodation subject to Title III of the ADA. The Defendant denies that its Website is a public accommodation or a place of public accommodation or is otherwise subject to Title III of the ADA. By entry into the Consent Decree, the Defendant does not admit any wrongdoing. The Plaintiff and the Defendant agree that it is in the Parties' best interest to resolve the Action on mutually agreeable terms without further litigation. Accordingly, they agree to the entry of the Consent Decree without trial or further adjudication of any issues of fact or law raised in the Plaintiff's Complaint. The Consent Decree resolves, settles, and compromises all issues between the Parties in the Action. It is entered into by the Plaintiff, individually. The Parties agree that for purposes of the Action and the Consent Decree venue is appropriate. The term of the Consent Decree will commence as of the Effective Date and remain in effect for the earlier of: (1) 24 months from the Effective Date; or (2) the date, if any, that the regulations are adopted in the Department of Justice's anticipated proposed regulations for websites under Title III of the ADA. Pursuant to the terms of the Consent Decree, the Defendant: a. will not deny persons with a disability (as defined under the ADA), including the Plaintiff, the opportunity to participate in and benefit from the goods, services, privileges, advantages, and accommodations through the Website as set forth therein. b. will use Reasonable Efforts to provide persons with a disability (as defined under the ADA), including the Plaintiff, an equal opportunity to participate in or benefit from the goods, services, privileges, advantages, and accommodations provided through the Website as set forth therein. c. will use Reasonable Efforts to ensure that persons with a disability (as defined under the ADA), including the Plaintiff, are not excluded, denied services, segregated, or otherwise treated differently because of the absence of auxiliary aids and services, through the Website as set forth therein. The Defendant will ensure full and equal enjoyment of the goods, services, privileges, advantages, and accommodations provided by and through the Website according to the following timeline and requirements provided that the following dates will be extended in the instance that the Department of Justice releases regulations for websites under Title III of the ADA while the Consent Decree is in effect and which contain compliance dates and/or deadlines further in the future than the dates set forth therein. The Plaintiff and the Defendant have agreed to settle all matters relating to costs, damages, attorneys' fees, experts' fees, other financial matters, relating to any alleged inaccessibility of the Website through a separate agreement which is not incorporated into the Consent Decree. If a party believes that the other party hereto has not complied in all material respects with any provision of the Consent Decree that party will provide the other party with written notice of non-compliance. Within 60 days of either Party receiving notice, the other Party will respond in writing to the notice. Within 15 days of receipt of the response, the Parties will meet by telephone, or in person, in an attempt to informally resolve the issue. If the issue remains unresolved within 30 days of the meeting referenced, the Parties will each have an additional 30 days to select an expert and the two experts will mutually select an independent accessibility consultant with substantial experience in accessible website design who will evaluate the particular item(s) raised based on whether a person can adequately utilize the Website. Any notice or communication required or permitted to be given to the Parties will be given in writing by e-mail and by overnight express mail or United States first class mail, addressed as follows: For Plaintiff: Edward Y. Kroub, Esq. Mizrahi Kroub LLP 200 Vesey Street, 24th Floor/Mailroom New York, New York 10281 Tel: (212) 595-6200 EKroub@MizrahiKroub.com For Defendant: Joseph J. DiPalma, Esq. Jackson Lewis P.C. 44 South Broadway, 14th Floor White Plains, New York 10601 Tel: (914) 872-6920 Joseph.DiPalma@JacksonLewis.com Judge Caproni orders that the provisions of the Consent Decree will be binding upon the Parties. Entry of the Consent Decree is in the public interest. Consent Decree is for settlement purposes only and does not constitute an admission by the Defendant of any of the allegations contained in the Complaint or any other pleading in this lawsuit, nor does it constitute any finding of liability against it. The Plaintiff is acting as a private attorney general in bringing this lawsuit and enforcing the ADA. The Consent Decree will be deemed as adjudicating, once and for all, the merits of each and every claim, matter, and issue that was alleged, or could have been alleged by the Plaintiff based on, or arising out of, or in connection with, the allegations in the Complaint. Judge Caproni approves the Consent Decree and in doing so specifically adopts it and makes it an Order of the Court. The Court is not retaining jurisdiction to enforce this contract. A full-text copy of the Court's Aug. 12, 2022 Consent Decree is available at https://tinyurl.com/ezmrbp7p from Leagle.com. ROEHL TRANSPORT: Seeks Unpaid Wages for Truck Drivers Under FLSA ---------------------------------------------------------------- WILLIAM MILFORD, on behalf of himself and all others similarly situated v. ROEHL TRANSPORT, INC., Case No. 2:22-cv-00879-BHL (E.D. Wisc., Aug. 3, 2022) is a class action brought on behalf of individuals who have worked for Roehl Transport as drivers and have not been paid all the wages they are owed and have had unlawful deductions taken from the wages they earned, in violation of the federal Fair Labor Standards Act and wage and hour laws in the state of Wisconsin. The Plaintiff seeks recovery of all unpaid minimum wages. The Plaintiff seeks liquidated damages, interest, costs and attorneys' fees, and all other relief to which the class and he are entitled. Plaintiff William Milford is an adult resident of Fond du Lac, Wisconsin. He worked as a truck driver for Defendant from September to October 2020. Roehl is an American trucking company based in Marshfield, Wisconsin. The company provides national transportation and logistics services.[BN] The Plaintiff is represented by: Brook S. Lane, Esq. Hillary Schwab, Esq. Brook S. Lane, Esq. FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 607-3260 E-mail: hillary@fairworklaw.com brook@fairworklaw.com ROUNDY'S ILLINOIS: Prgam Seeks Overtime Pay Under FLSA, NYLL ------------------------------------------------------------ NIHRIEN PRGAM v. ROUNDY'S ILLINOIS, LLC., D/B/A MARIANO'S, Case No. 1:22-cv-04034 (N.D. Ill.,Aug. 2, 2022) is a class action brought under the Fair Labor Standards Act and the Illinois Minimum Wage Law. The Defendant operates a chain of grocery stores within Illinois and throughout the greater Chicagoland area, that sells food, prepared food, beverages, including alcoholic beverages and other consumer products to the general public. According to the complaint, the Plaintiff was improperly classified as salary exempt and denied overtime for work in excess of 40 hours in a work week. The Plaintiff worked over 40 hours most, if not all work weeks she worked for the Defendants and was not paid her overtime rate of pay of one and one-half her regular rate, says the suit. The Defendant compensated Plaintiff on a salary basis but failed to pay one-and one-half times the regular hourly rates of pay for all hours worked, including hours over 40 in individual work weeks, alleges the suit. Mariano's is a Midwestern grocery store chain that opened its doors in 2010. Mariano's is owned by Kroger.[BN] The Plaintiff is represented by: John W. Billhorn, Esq. Samuel D. Engelson, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 1137 Chicago, IL 60604 Telephone: (312) 853-1450 ROUNDY'S ILLINOIS: Qazi Seeks Unpaid OT Wages Under FLSA, IMWL -------------------------------------------------------------- MARIA QAZI v. ROUNDY'S ILLINOIS, LLC., D/B/A MARIANO'S, Case No. 1:22-cv-04058 (N.D. Ill., Aug. 4, 2022) is a class action suit brought under the Fair Labor Standards Act and the Illinois Minimum Wage Law seeking to recover unpaid overtime wages earned on or before the date three years prior to the filing of this action. The Plaintiff Qazi worked for the Defendant as a PSM from November 2016 to August 2017. Throughout all times pertinent to the Plaintiff's claims, the Defendant applied a common policy to Plaintiff in her role as a PSM, in that the Defendant classified Plaintiff as "salary exempt," says the suit. The Defendant operates a chain of grocery stores within Illinois and throughout the greater Chicagoland area, that sells food, prepared food, beverages, including alcoholic beverages and other consumer products to the general public.[BN] The Plaintiff is represented by: John W. Billhorn, Esq. Samuel D. Engelson, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 1137 Chicago, IL 60604 Telephone: (312) 853-1450 ROUNDY'S ILLINOIS: Underpays Store Managers, Larson Class Suit Says ------------------------------------------------------------------- JANEL LARSON v. ROUNDY'S ILLINOIS, LLC., D/B/A MARIANO'S, Case No. (Aug. 2, 2022) is a class action seeking from the Defendant unpaid minimum and overtime wages and for (a) an additional statutory interest penalty of 2% amount of the amount of such underpayments for each month following the date such underpayments that remain unpaid through February 18, 2019 and (b) treble the amount of the underpayments and a statutory interest penalty in the amount of 5% of the underpayments each month for damages incurred thereafter under the Fair Labor Standards Act and the Illinois Minimum Wage Law. Plaintiff Larson worked for the Defendant as a Store Manager from January 2017 to September 2017. The Defendant operates a chain of grocery stores within Illinois and throughout the greater Chicagoland area, that sells food, prepared food, beverages, including alcoholic beverages and other consumer products to the general public.[BN] The Plaintiff is represented by: John W. Billhorn, Esq. Samuel D. Engelson, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 1137 Chicago, IL 60604 Telephone: (312) 853-1450 ROUNDY'S ILLINOIS: Weaver Seeks Overtime Pay Under FLSA, IMWL ------------------------------------------------------------- CARRIE R. WEAVER v. ROUNDY'S ILLINOIS, LLC., D/B/A MARIANO'S, Case No. 1:22-cv-04033 (N.D. Ill., Aug. 2, 2022) is a class action brought under the Fair Labor Standards Act and the Illinois Minimum Wage Law. According to the complaint, all Plaintiff worked in excess of her minimum schedule because the Defendant's store managers required Plaintiff to arrive early or stay late before or after scheduled shifts, because Defendant's business demands required it, or for other reasons required by the Defendant. The Plaintiff worked or work in excess of 40 hours in a workweek without pay for hours worked over 40 at a rate of time and one-half her regular hourly rate of pay, pursuant to the requirements of the federal and state statutes. The Defendant has, both in the past and presently, willfully employed the Plaintiff without pay at a rate of one and one-half times their rates of pay for hours worked in excess of 40 in a workweek, says the suit. The Defendant operates a chain of grocery stores within Illinois and throughout the greater Chicagoland area, that sells food, prepared food, beverages, including alcoholic beverages and other consumer products to the general public.[BN] The Plaintiff is represented by: John W. Billhorn, Esq. Samuel D. Engelson, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 1137 Chicago, IL 60604 Telephone: (312) 853-1450 RUEY CHAI CORP: Fails to Pay Proper Wages, Olivar Suit Alleges -------------------------------------------------------------- ESTEBAN BRAVO OLIVAR, individually and on behalf of all others similarly situated, Plaintiff v. RUEY CHAI CORP. d/b/a THAI CHIC BISTRO; JANPEN PHUPEERASUPONG; and JITLADA SOIPETCH, Defendants, Case No. 2:22-cv-04864 (E.D.N.Y., Aug. 17, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Olivar was employed by the Defendants as kitchen staff. RUEY CHAI CORP. owns and operates a restaurant in New York known as Thai Chic Bistro. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 SEA THAI HOSPITALITY: Fails to Pay Proper Wages, Banjong Alleges ---------------------------------------------------------------- JAKAPAN BANJONG; THAMMARAK RAKSA; SIRINART NONTHAWONG; PORNTHIWA BOONKWANG; and TAWHID KABIR, individually and on behalf of all others similarly situated, Plaintiffs v. SEA THAI HOSPITALITY, INC.; and YONGYUT LIMLEART-VATE, Defendants, Case No. 1:22-cv-04849-BMC (E.D.N.Y., Aug. 17, 2022) is an action against the Defendant for failure to pay minimum wages, overtime compensation, and provide accurate wage statements. Plaintiffs Banjong, Raksa, and Kabir was employed by the Defendants as busser. Plaintiff Nonthawong was employed as food runner. Plaintiff Boonkwang was employed as server. SEA THAI HOSPITALITY, INC. is a restaurant in Brooklyn that serves primarily Thai food. [BN] The Plaintiffs are represented by: Robert Halpern, Esq. HALPERN LEGAL CLINIC, INC. 18 W. Gowen Avenue Philadelphia, PA 19119 Telephone: (646) 288-4372 Email: rnh17@verizon.net SEDGWICK CLAIMS: Gibbs Seeks to Certify FLSA Collective Action -------------------------------------------------------------- In the class action lawsuit captioned as CONNIE GIBBS, on behalf of herself and others similarly situated, v. SEDGWICK CLAIMS MANAGEMENT SERVICES INC., a Foreign for Profit Corporation, Case No. 2:21-cv-02153-SHM-cgc (W.D. Tenn,), the Plaintiff asks the Court to enter an order granting conditional certification of a collective action, the issuance of court-authorized notice, and for approving conditional certification, and approving court-authorized notice under Section 216(b) of the Fair Labor Standards Act of 1938 (FLSA). Since the filing of the initial Complaint, in addition to Plaintiff Gibbs, at the time of the filing of this Unopposed Motion, 122 Opt-In Plaintiffs have joined this lawsuit. The Opt-Ins included individuals that held the title Absence Management Care Team Representative ("ACT Rep.") The Act Rep position at times does similar work to Disability Rep Srs., but in a different manner, the lawsuit says. The Plaintiff and Opt-In Plaintiffs work(ed) for Sedgwick in the positions of "Disability Representative Senior" and/or "Absence Management Care Team Representative." In these roles, the Plaintiff and Opt-In Plaintiffs at times were classified as exempt from the FLSA's requirement to pay overtime compensation, were paid a salary, and were not paid overtime for hours worked in excess of 40 hours per week. Sedgwick Claims provides claims and productivity management services. A copy of the Plaintiff's motion dated Aug. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3pvtrMC at no extra charge.[CC] The Plaintiff is represented by: Mary E. Lytle, Esq. David V. Barszcz, Esq. LYTLE & BARSZCZ, P.A. 533 Versailles Drive, 2 nd Floor Maitland, FL 32751 Telephone: (407) 622-6544 Facsimile: (407) 622-6545 E-mail: mlytle@lblaw.attorney dbarszcz@lblaw.attorney The Defendant is represented by: Robin A. Wofford, Esq. Lois M. Kosch, Esq. Meryl C. Maneker, Esq. Leticia C. Butler, Esq. WILSON TURNER KOSMO LLP 402 West Broadway, Suite 1600 San Diego, CA 92101 Facsimile: (619) 236-9669; E-mail: rwofford@wilsonturnerkosmo.com lkosch@wilsonturnerkosmo.com mmaneker@wilsonturnerkosmo.com lbutler@wilsonturnerkosmo.com - and - Thomas L. Henderson, Esq., OGLETREE DEAKINS NASH SMOAK & STEWART, P.C. 6410 Poplar Avenue, Suite 300 Memphis TN 38119 Facsimile: (901) 767-7411 E-mail: Thomas.henderson@ogletreedeakins.com SERVE U BRANDS: Underpays General Workers, Gillis Suit Claims ------------------------------------------------------------- The case, TERRIE GILLIS, on behalf of herself and others similarly situated in the proposed FLSA Collective Action, Plaintiff v. SERVE U BRANDS INC. d/b/a INSOMNIA COOKIES, Defendant, Case No. 1:22-cv-04830 (E.D.N.Y., August 16, 2022) is brought by the Plaintiff to recover damages against the Defendant's willful and intentional violations of the Fair Labor Standards Act, the New York Labor Law, and their supporting New York State Department of Labor Regulations. The Plaintiff has worked as a general worker at the Defendant's Insomnia Cookies from on or around May 19, 2021 through and including December 31, 2022. The Plaintiff alleges that the Defendant has maintained a policy and practice commonly known as "time shaving" and manually input its general workers' end times. Specifically, the Defendant's manager would typically adjust the Plaintiff and other similarly situated general workers' end times by 2 hours each day from August 1, 2021 through and including December 31, 2022. As a result, they were forced to work of the clock without being compensated. Despite working more than 40 hours per week, they were not paid overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek, says the Plaintiff. The Plaintiff also claims that the Defendant failed to keep track of its employees' time that accurately reflected their actual hours worked, and failed to provide them with wage statements and with notice of their rate of pay, regular pay day, and such other information. Serve U Brands Inc. d/b/a Insomnia Cookies owns, operates and/or controls a cookie shop known as "Insomnia Cookies" located at 32 5th Avenue, Brooklyn, NY 11217. [BN] The Plaintiff is represented by: Joshua Levin-Epstein, Esq. Jason Mizrahi, Esq. LEVIN-EPSTEIN & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4700 New York, NY 10165 Tel: (212) 792-0046 E-mail: Joshua@levinepstein.com SILVER HEART: Faces Baxter Suit Over Failure to Pay Overtime Wages ------------------------------------------------------------------ SAMIRAH BAXTER, individually and on behalf of all persons similarly situated, Plaintiff v. SILVER HEART HEALTHCARE AGENCY, LLC, Defendant, Case No. 2:22-cv-03262 (E.D. Penn., August 16, 2022) is a class and collective action complaint brought by the Plaintiff against the Defendant seeking all available relief pursuant to the Fair Labor Standards Act and Pennsylvania state law. The Plaintiff has worked for the Defendant as a home health aide performing home care support and services in Pennsylvania from May 2018 through May 2022. According to the complaint, the Plaintiff and other similarly situated home health aide routinely worked more than 40 hours per week. However, the Defendant did not pay them overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek. Instead, they were only paid straight time without any overtime compensation, says the suit. Silver Heart Healthcare Agency, LLC provides integrated healthcare services. [BN] The Plaintiff is represented by: Sarah R. Schalman-Bergen, Esq. Krysten Connon, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston St., Suite 2000 Boston, MA 02116 Tel: (267) 256-9973 E-mail: ssb@llrlaw.com kconnon@llrlaw.com SOUTH DAKOTA: Scheduling Order Entered in Irvine Class Suit ----------------------------------------------------------- In the class action lawsuit captioned as JULIE IRVINE, guardian ad litem of Juan Alvarez, Aubrey Archambeau, and Joseph Baker, as named plaintiffs on behalf of a class; JUAN ALVAREZ, on behalf of a class; AUBREY ARCHAMBEAU, on behalf of a class; and JOSEPH BAKER, on behalf of a class; Plaintiffs, v. JEREMY JOHNSON, Administrator, South Dakota Human Services Center, in his official capacity, Case No. 4:21-cv-04224-KES (D.N.D.), the Hon. Judge Karen E. Schreier entered an order granting motion and scheduling order as follows: 1. All prediscovery disclosures required by Rule 26(a)(1) will be exchanged by the parties, but not filed with the court, on or before September 5, 2022. 2. The parties will have until October 3, 2022, to move to join additional parties and to amend the pleadings. 3. All discovery, including expert discovery, will be commenced in time to be completed by February 6, 2023. 4. Motions to compel discovery should be filed within 14 days after the subject matter of the motion arises. 5. There will be a maximum of 20 depositions for each party, excluding depositions relevant to class certification, for which there can be no more than 5, and depositions of experts. Depositions will be limited to seven hours. 6. The identity of and reports from retained experts under Rule 26(a)(2) will be due from plaintiff by December 5, 2022, and from defendant by January 5, 2023 The Human Services Center in Yankton, South Dakota is a psychiatric hospital that was built in 1882. A copy of the Court's order dated Aug. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3c3mAa2 at no extra charge.[CC] SPEEDWAY MOTORS: Walli Sues Over Unsolicited Text Messages ---------------------------------------------------------- ASHER WALLI, LLC Plaintiff v. SPEEDWAY MOTORS, INC., Defendant, Case No. 155418712 (Fla. 6th Jud. Cir. Ct., August 16, 2022) brings this complaint alleging the Defendant of violations of the Florida Telephone Solicitation Act. The Plaintiff alleges that the Defendant engages in an elaborate text marketing campaign by using various approaches to attempt to drive business to its website for online automotive parts sales. More specifically, the Defendant maintains website inducements that allow individuals to sign up for "order messages and/or promotional messages" by providing both an email address and a phone number. Consequently, after it provided its phone number when it visited the Defendant's website during the summer of 2022, the Plaintiff claims that its cellphone has received numerous text messages advertisements from the Defendant without the Plaintiff's prior express written consent to receive such text messages, says the Plaintiff. On behalf of itself and on behalf of all others similarly situated, the Plaintiff seeks statutory damages, and an injunction requiring the Defendant to cease from sending of all text message advertisements involving an automated system for the selection or dialing of telephone numbers. The Plaintiff also seeks a judgment for the total amount of statutory penalties plus pre-judgment interest and allowable costs, and other relief as may be appropriate. Speedway Motors, Inc. is a retailer of automotive parts. [BN] The Plaintiff is represented by: Joshua A. Gickman, Esq. Shawn A. Heller, Esq. SOCIAL JUSTICE LAW COLLECTIVE, PL 974 Howard Ave. Dunedin, FL 34698 Tel: (202) 709-5744 Fax: (202) 893-0416 E-mail: josh@sjlawcollective.com shawn@sjlawcollective.com STRATEGIC DELIVERY: Court Certifies FLSA Class in Zambrano Suit --------------------------------------------------------------- In the case, CHRISTIAN ZAMBRANO, LUZ DURANGO, MOIRA RIVEROS, and RIGOBERTO ROMERO, on behalf of themselves and all others similarly situated, Plaintiffs, v. STRATEGIC DELIVERY SOLUTIONS, LLC, DAVID KRONICK, ANDREW KRONICK, and MIKE RUCCIO, Defendants, Case No. 15 Civ. 8410 (ER) (S.D.N.Y.), Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York grants Blanca Alulema and Maria Tacoaman's motion to conditionally certify a collective action under the Fair Labor Standards Act. Lead Plaintiffs Zambrano, Durango, Riveros, and Romero, bring the putative collective and class action against the Defendants, alleging that the latter improperly classified them as independent contractors and denied them wages in violation of the FLSA and the New York Labor Law. Between March and April of 2016,23 other plaintiffs opted into the litigation. Presently, Moving Plaintiffs Alulema and Tacoaman petition the Court to: (1) conditionally certify a collective action under the FLSA, 29 U.S.C. Section 216(b); (2) equitably toll the statute of limitations for the period in which the case was stayed; (3) order disclosure of contact information of similarly situated individuals; and (4) approve notice to be sent to those similarly situated. From 2010 to 2020, the Moving Plaintiffs were delivery drivers for SDS, a company that delivers pharmaceutical products to pharmacies and other entities in New York and New Jersey. SDS operates facilities in Elizabeth (New Jersey), Farmingdale (New York), Brooklyn, the Bronx, and other locations. David Kronick is an owner and CEO of SDS; Andrew Kronick is an owner and managing partner of SDS; and Ruccio is the COO of SDS. The Moving Plaintiffs allege that these individual defendants exercised sufficient control over the day-to-day operations of SDS to qualify as their employers. According to them, the Defendants dictated the manner with which the drivers were to handle goods, required drivers to obtain a specific type of insurance coverage, set drivers' delivery routes, determined the order and timing of drivers' stops, and established per-stop compensation. They therefore allege that the Defendants unilaterally misclassified its delivery drivers as independent contractors. Over the course of their time with SDS, the Moving Plaintiffs worked out of SDS' locations in Elizabeth and Farmingdale. Their duties involved making pharmaceutical deliveries in New Jersey and New York. During their time at the Elizabeth facility, they claim to have worked alongside more than 50 other delivery drivers who, like them, delivered products throughout New Jersey and New York. During their time at Farmingdale, they claim to have worked alongside approximately 20 other delivery drivers who made deliveries in New York. The Moving Plaintiffs claim that, in general, they and the other delivery drivers were paid on a per-stop, as opposed to hourly, basis. They allege that they and the other delivery drivers often worked more than 40 hours per week, but were never paid overtime premiums for additional hours worked. Moreover, SDS regularly made deductions from the weekly paychecks of the Moving Plaintiffs, ranging from $75.63 to $90.75 per week, which included fees described as "cargo waiver," "manifest," and "CMS Fee." Other drivers making deliveries in New York and New Jersey were purportedly subject to similar deductions. They further contend that they and the other drivers were required to pay out-of-pocket for the necessary expenses of doing their jobs. SDS did not reimburse any of those expenses. As a result of SDS' pay practices, the Moving Plaintiffs argue that they and the other New York and New Jersey drivers routinely received pay for overtime hours falling below the legally required overtime rate. The Named Plaintiffs, who made deliveries in New York's Bronx, Dutchess New York, Orange, and Westchester counties, also assert that the same common policy of misclassification and resulting FLSA violations affected them. On Oct 26, 2015, the Lead Plaintiffs initiated the action, on behalf of themselves and all others similarly situated, against the Defendants. On Jan. 29, 2016, before any of the approximately 20 Opt-in Plaintiffs had joined, the Defendants moved to dismiss the Complaint and compel arbitration with respect to the Lead Plaintiffs. On Sept. 22, 2016, the Court granted their motion to compel arbitration and stayed the case. Approximately four years later, on Oct. 23, 2020, the Moving Plaintiffs moved to lift the stay and amend the Complaint to add claims under New York and New Jersey law, which the Court granted in part and denied in part on Sept. 28, 2021. Specifically, it found that "the existence of alleged arbitration agreements, not yet properly before the Court, did not prevent them from amending the Complaint and seeking to advance Litigation -- even if they will ultimately be required to arbitrate." The Court also noted that the "weight of the law in this Circuit holds that a collective may be conditionally certified, and notice given, notwithstanding that some or all of the prospective members of the collective may have signed arbitration agreements." Between March and April of 2016, the Opt-in Plaintiffs joined the litigation. On Oct. 8, 2021, the Moving Plaintiffs requested a pre-motion conference to seek permission to file the instant motion for conditional certification, which the Court granted. On Oct. 19, 2021, they filed an amended complaint. On Nov. 2, 2021, the Defendants requested a pre-motion conference to seek leave to file a motion to dismiss and compel arbitration against the Moving Plaintiffs, which the latter opposed on Nov. 3, 2021, arguing that the Court should instead permit them first to file a motion for conditional certification and to conduct limited discovery concerning the alleged formation of the arbitration provisions. After a Nov. 4, 2021 telephone conference with the parties, the Court granted the Moving Plaintiffs' request, denying the Defendants permission to file their proposed motion, and permitting limited discovery into the arbitration provisions. The Moving Plaintiffs now seek conditional certification of the action under the FLSA, pursuant to 29 U.S.C. Section 216(b) for the following class of potential opt-in plaintiffs: "All current and former delivery drivers (or those in comparable roles with different titles) who worked and/or performed services for Strategic Delivery Solutions, LLC delivering pharmaceutical products to pharmacies and other locations in New York and/or New Jersey between September 2013 and the present" (the "Potential Opt-in Plaintiffs" or the "Proposed Class"). The Moving Plaintiffs also ask the Court to equitably toll the statute of limitations for the period in which the case was stayed (i.e., from Sept. 23, 2016 until Sept. 28, 2021) as to themselves and as to the Potential Opt-in Plaintiffs. Lastly, they ask that the Court approves the proposed notice. As to the conditional certification of a FLSA collective action, Judge Ramos finds that the Moving Plaintiffs have made the requisite "modest factual showing" that individuals who delivered pharmaceutical products for SDS in New York or New Jersey between September 2013 and the present "together were victims of a common policy or plan that violated the law." He therefore grants their motion for conditional certification. The Moving Plaintiffs request that the Defendants produce the aforementioned information for Potential Opt-in Plaintiffs within 15 days of the order. Judge Ramos grants their request. In light of this Opinion, Judge Ramos directs the parties to meet and confer, per the Defendants' request, to resolve any outstanding issues that the Defendants may still take with respect to the proposed notice attached to the Moving Plaintiffs' reply brief. He directs them to submit a mutually agreed upon notice within 30 days of his Order, subject to the Court's approval. If the parties cannot agree, parties should submit their separate proposal for the Court's decision. For the reasons set forth, Judge Ramos grants the Moving Plaintiffs' motion to conditionally certify a collective action under the FSLA for the Proposed Class and orders disclosure of contact information for the Proposed Class. As stipulated, he withholds adjudication on the Moving Plaintiffs' proposed notice, and directs parties to submit a mutually agreed upon proposal within 30 days. The Clerk of Court is respectfully directed to terminate the motion at Doc. 127. A full-text copy of the Court's Aug. 16, 2022 Opinion & Order is available at https://tinyurl.com/ytez75v3 from Leagle.com. TELADOC HEALTH: Faces Schutter Class Suit Over Stock Price Drop --------------------------------------------------------------- WALTER DE SCHUTTER, individually and on behalf of all others similarly situated v. TELADOC HEALTH, INC., JASON GOREVIC, and MALA MURTHY, Case No. 1:22-cv-04525 (E.D.N.Y., Aug. 2, 2022) is a class action on behalf of persons or entities who purchased or otherwise acquired publicly traded Teladoc securities between October 28, 2021 and April 27, 2022, inclusive seeking to recover compensable damages caused by the Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. Teladoc provides virtual healthcare services in the U.S. and internationally through B2B and D2C distribution channels, serving employers, health plans, hospitals and health systems, insurance and financial services companies, and individual members. The Company offers its customers various virtual products and services addressing, among other medical issues, mental health through its BetterHelp D2C product, and chronic conditions. Teladoc touts itself as "the first and only company to provide a comprehensive and integrated whole person virtual healthcare solution that both provides and enables care for a full spectrum of clinical conditions." Despite recent market concerns over new entrants to the telehealth field, such Amazon and Walmart, the Company has continued to assure investors of the Company's dominant market position in the industry. On October 28, 2021, the day after Teladoc held a conference call with investors and analysts to discuss the Company's third quarter 2021 results (the "Q3 2021 Earnings Call"). On that call, Defendant Gorevic provided preliminary FY 2022 revenue guidance of $2.6 billion, while simultaneously downplaying anticipated headwinds to the Company's chronic care business. On April 27, 2022, post-market, Teladoc issued a press release announcing its Q1 2022 financial results, including revenue of $565.4 million, which missed consensus estimates by $3.23 million, and "net loss per share of $41.58, primarily driven by a non-cash goodwill impairment charge of $6.6 billion or $41.11 per share." On April 28, 2022, investor news resource Seeking Alpha published an article entitled "Teladoc draws downgrades after 1Q revenue miss[,]" noting that the Company's "shares have lost more than a third of value to reach a 52-week low on Thursday after the telehealth company missed Street forecasts for its 1Q 2022 revenue prompting many analysts to downgrade the stock," while citing analysts from Citi, Credit Suisse, and Wells Fargo. On this news, the Company's stock price fell $22.48 per share, or 40%, to close at $33.51 per share on April 28, 2022, damaging investors. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the suit. Teladoc provides virtual healthcare services in the U.S. and internationally through Business-to-Business (B2B) and Direct-to-Consumer (D2C) distribution channels. The Company offers its customers various virtual products and services addressing, among other medical issues, mental health through its BetterHelp D2C product, and chronic conditions. The Individual Defendants are officers of the company.[BN] The Plaintiff is represented by: Phillip Kim, Esq. Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Ave., 40th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: pkim@rosenlegal.com lrosen@rosenlegal.com TEXAS: 5th Circuit Affirms Dismissal of Angton v. Collier & TDCJ ---------------------------------------------------------------- In the lawsuit titled RELL ANGTON, JR., Plaintiff-Appellant v. BRYAN COLLIER, Executive Director, Texas Department of Criminal Justice; TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Defendants-Appellees, Case No. 21-40428 (5th Cir.), the United States Court of Appeals for the Fifth Circuit affirms the dismissal of the Plaintiff-Appellant's lawsuit. Rell Angton, Jr., former Texas prisoner # 799563, appeals the dismissal of his 42 U.S.C. Section 1983 suit based upon immunity under 28 U.S.C. Section 1915(e)(2)(B)(iii) and for failure to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6). In that suit, he alleged that the Texas Department of Criminal Justice (TDCJ) and Brian Collier, the TDCJ Executive Director, exposed Angton to excessive heat in violation of the terms of a settlement agreement from a separate class action. The settlement agreement provided that all class members, including Angton, be housed in air-conditioned facilities for the remainder of their incarceration. Angton does not challenge the district court's reasoning that the TDCJ was entitled to Eleventh Amendment immunity against his suit for money damages. Because Angton fails to contest or address the district court's reasons for dismissing his claims against the TDCJ under Section 1915(e)(2)(B)(iii), he has abandoned any argument in that regard on appeal, the Court of Appeals opines. Additionally, the Court of Appeals finds that Angton has not stated a plausible claim for relief against Collier under Section 1983. Angton did not allege any personal involvement by Collier in an act or omission that resulted in Angton's alleged exposure to extreme heat. Nor did Angton allege any policy implemented by Collier that was "the moving force" behind such exposure. Moreover, Angton does not state a facially plausible claim that Collier is liable for violating the terms of the settlement agreement because a remedial court order, standing alone, does not serve as a basis for section 1983 liability. Finally, the Court of Appeals notes that Angton attempts to raise claims of money damages against the State of Texas and civil rights violations against various prison employees. Because he did not raise those claims in the district court, the Court of Appeals says it will not consider them in the first instance on appeal. Accordingly, the judgment of the district court is affirmed. Mr. Angton's motions for appointment of counsel are denied. A full-text copy of the Court's Opinion dated Aug. 11, 2022, is available at https://tinyurl.com/2wb332b3 from Leagle.com. TRACY, CA: Vargas Files Suit in Cal. Super. Ct. ----------------------------------------------- A class action lawsuit has been filed against City of Tracy, et al. The case is styled as Patrick Vargas, individually, and on behalf of others similarly situated v. City of Tracy, Randall Bradley, in his official capacity as Fire Chief of the South San Joaquin County Fire Authority; South an Joaquin County Fire Authority, Case No. STK-CV-UWT-2022-0005692 (Cal. Super. Ct., San Joaquin Cty., July 8, 2022). The case type is stated as "Unlimited Civil Wrongful Termination." City of Tracy -- https://www.cityoftracy.org/ -- is the second most populated city in San Joaquin County, California, United States.[BN] The Plaintiff is represented by: Ardalan Raghian, Esq. WYLIE, MCBRIDE, PLATTEN & RENNER 2025 Gateway Pl., Ste. 430 San Jose, CA 95110-3727 Phone: 408-979-2920 Email: araghian@wmprlaw.com TROY LAND: Rivas Seeks Unpaid Wages for OT Work Under FLSA, NYLL ---------------------------------------------------------------- RONALD RIVAS and JUAN RAMIREZ on behalf of themselves and others similarly situated v. MICHAEL GOELLER, TROY LAND DEVELOPMENT CORP. and TROY LAND DEVELOPERS, INC., Case No. 2:22-cv-04586-ENV-ST (E.D.N.Y., Aug. 3, 2022) seeks unpaid wages for overtime work performed, liquidated damages, attorneys' fees, interest, and all costs and disbursements associated with this action under the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Defendants had a policy and practice of refusing to pay compensation to the Plaintiff for those hours worked in excess of forty 40 per workweek. The Defendants has and operated under a decision, policy and plan, and under common policies, programs, practices, procedures, protocols, routines and rules of willfully failing and refusing to pay the Plaintiffs and FLSA Collective Plaintiffs at one and one half times the minimum wage for work in excess of 40 hours per workweek, and willfully failing to keep records required by the FLSA even though the FLSA Collective Plaintiffs have been and are entitled to overtime, says the suit. Troy is a freight shipping Trucking Company.[BN] The Plaintiff is represented by: Marcus Monteiro, Esq. MONTEIRO & FISHMAN LLP 91 N. Franklin Street, Suite 108 Hempstead, NY 11550 Telephone: (516) 280-4600 Facsimile: (516) 280-4530 E-mail: mmonteiro@mflawny.com TRUMP FERRY: Faces Rodriguez Wage-and-Hour Suit in S.D.N.Y. ----------------------------------------------------------- AILEEN RODRIGUEZ, on behalf of herself and others similarly situated, Plaintiff v. TRUMP FERRY POINT LLC d/b/a TRUMP GOLD LINKS AT FERRY POINT and THE WATERFRONT NYC, and JOE ROEDIGER, Defendants, Case No. 1:22-cv-06836 (S.D.N.Y., Aug. 10, 2022) is brought pursuant to the Fair Labor Standards Act and the New York Labor Law seeking from Defendants unpaid regular and overtime wages due to off the clock work, unpaid minimum wage due to invalid tip credit, misappropriated tips, unreimbursed uniform maintenance pay, unpaid spread-of-hours pay, statutory penalties, liquidated damages, and attorneys' fees and costs. The Plaintiff was employed by Defendants as a server at The Waterfront NYC, a restaurant located on the grounds of the Trump Golf Links at Ferry Point in Bronx, New York, from August 1, 2020, until June 8, 2021. Trump Ferry Point LLC operates the Trump Golf Links at Ferry Point which includes The Waterfront NYC, an upscale seafood restaurant.[BN] The Plaintiff is represented by: William Brown, Esq. BROWN KWON & LAM LLP 521 Fifth Avenue, 17th Floor New York, NY 10175 Telephone: (212) 295-5828 Facsimile: (718) 795-1642 E-mail: wbrown@bkllawyers.com UBER TECHNOLOGIES: Faces Cao Suit Over Drop in Share Price ---------------------------------------------------------- DONGPING CAO, individually and on behalf of all others similarly situated, Plaintiff v. UBER TECHNOLOGIES, INC.; DARA KHOSROWSHAHI; and NELSON CHAI, Defendants, Case No. 3:22-cv-04688 (N.D. Cal., Aug. 16, 2022) is a federal securities class action on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Uber common stock between May 31, 2019 and July 8, 2022, both dates inclusive (the "Class Period"), seeking to recover damages caused by the Defendants' violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934 (the "Exchange Act"). The Plaintiff alleges in the complaint that throughout the Class Period, the Defendants made materially false and misleading statements regarding Uber's business, operations, and compliance policies. Specifically, the Defendants made false and misleading statements and failed to disclose that: (i) Uber had defective disclosure controls and procedures; (ii) Uber concealed and downplayed the full scope and severity of its prior misconduct, including, inter alia, the extent to which it secretly lobbied government officials and politicians to bypass legal and regulatory requirements, as well as knowingly risked the safety of Uber drivers, to fuel the Company's global growth; (iii) as a result, Uber's present global footprint and market share is in significant part the byproduct of previously undisclosed, unsustainable, and illegal business practices; (iv) all the foregoing, once revealed, was likely to negatively impact Uber's reputation, as well as subject the Company to a heightened risk of governmental and regulatory scrutiny and enforcement action; and (v) as a result, the Company's public statements were materially false and misleading at all relevant times, says the suit. On Sunday, July 10, 2022, news reports emerged regarding a cache of 124,000 internal Uber records, dubbed the "Uber Files" by media outlets, spanning from 2013 to 2017, that were leaked to The Guardian and subsequently shared with the International Consortium of Investigative Journalists ("ICIJ") and other news outlets. These files revealed, among other things, how Uber secretly met with various government officials and politicians to skirt laws and regulations around the world, as well as risked Uber drivers' safety, to advance the Company's growth, and how all the foregoing conduct was known to, and in fact encouraged by, the Company's top management. On this news, Uber's stock price fell $1.15 per share, or 5.15%, to close at $21.19 per share on July 11, 2022. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common stock, the Plaintiff and other Class members have suffered significant losses and damages, the suit alleges. Uber Technologies Inc provides ride hailing services. The Company develops applications for road transportation, navigation, ride sharing, and payment processing solutions. [BN] The Plaintiff is represented by: Jennifer Pafiti, Esq. POMERANTZ LLP 1100 Glendon Avenue, 15th Floor Los Angeles, CA 90024 Telephone: (310) 405-7190 Email: jpafiti@pomlaw.com UNITED STATES: Hospital Wins Summary Judgment Bid on Fees & Costs ----------------------------------------------------------------- In the case, THE NEW YORK AND PRESBYTERIAN HOSPITAL, Plaintiff v. THE UNITED STATES, Defendant, Case No. 16-cv-00496 (Fed. Cl.), Judge Eleni M. Roumel of the U.S. Court of Federal Claims grants the Plaintiff's Motion for Partial Summary Judgment on Attorneys' Fees and Costs. The case has a lengthy litigation history, familiarity with which is presumed. A condensed summary follows. The Hospital and its predecessor by merger employed medical residents and fellows (collectively, the Residents) enrolled in Accreditation Council for Graduate Medical Education at a medical college currently known as the Hospital's Weill Cornell Campus, N.Y. & Presbyterian Hosp. v. United States, 152 Fed. Cl. 507, 510 (2021). In August 2013, two groups of Residents filed class action lawsuits against the Hospital in the United States District Court for the Southern District of New York, alleging (i) the Hospital failed to file refund claims with the IRS to allow the Residents to recover FICA taxes collected and paid by the Hospital on their behalf for tax periods before April 1, 2005; and (ii) had the Hospital filed such refund claims for the Residents, the Residents would have received refunds of such FICA taxes collected and paid to the Government during the class period. "As relief, the Residents sought damages in the amount of the FICA tax withheld by the Hospital for the period at issue." The District Court consolidated the class actions for pretrial purposes. The Residents eventually entered into a settlement agreement with the Hospital to resolve the consolidated class actions. Under the settlement, the Hospital agreed to pay $6,632,000 to settle the Residents' claims. The District Court approved the class action settlement and dismissed the two consolidated cases. Following settlement of the class actions, the Hospital filed suit in this Court seeking indemnification from the Government for, inter alia, the "full amount of any money paid by the Hospital stemming from the claims and demands made in the Class Actions" and "attorneys' fees, costs, and other expenses incurred by the Hospital in defending against the 'claims and demands' of the Residents for 'the amount of' FICA taxes demanded in the Class Actions." The Government filed a motion to dismiss, and the Honorable Nancy B. Firestone granted the Government's motion, "holding that section 3102(b) is not a money-mandating source of substantive law, as is required for the Court of Federal Claims to have jurisdiction pursuant to the Tucker Act." The Hospital appealed, and the United States Court of Appeals for the Federal Circuit reversed. The Federal Circuit "held that section 3102(b) was reasonably amenable to a money-mandating reading for Tucker Act jurisdiction." Relevant to the present Motion, in reaching its holding the Federal Circuit examined several dictionaries published around the time of section 3102's enactment and concluded "that indemnified means 'reimburse.'" The Government unsuccessfully petitioned for rehearing en banc, and the case was remanded to the Court for further proceedings. On remand, the parties filed cross-motions for summary judgment on the Hospital's entitlement to indemnification under Internal Revenue Code Section 3102(b) for the Residents' claims in the settled class action suits. After the action was transferred to the undersigned judge, the Court granted the Hospital's motion for summary judgment and denied the Government's cross-motion for summary judgment. In doing so, it held "that the Residents' suit was a suit for a FICA tax refund; therefore, the Hospital is entitled to indemnification under section 3102(b)." The parties' motions left for a later date resolution of how much the Government would owe the Hospital. On June 2, 2021, the parties filed a joint status report with this Court indicating that they were discussing two categories of damages under section 3102(b): (1) the amount the Hospital paid to settle the claims asserted in the class actions; and (2) the attorneys' fees and costs the Hospital incurred in defending the class actions. The parties jointly expressed a belief that the latter category of damages presented a unique question of law and accordingly requested the opportunity to present briefing concerning whether attorneys' fees and costs the Hospital incurred in defending against the class actions are recoverable under section 3102(b). Accordingly, the Court ordered the Hospital to file a motion for partial summary judgment "concerning whether attorneys' fees and costs incurred in the class actions are recoverable in this action." The Hospital timely filed its Motion for Partial Summary Judgment, and the Court conducted oral argument on the pending Motion. The Hospital contends "that, as a matter of law, the Government's obligation to indemnify the Hospital pursuant to I.R.C. section 3102(b) includes reimbursing it for attorneys' fees and costs it incurred in defending the claims and demands asserted against it in the class actions." The Government argues that the statute's "unambiguous language" limits the Hospital's reimbursement to "the FICA tax it withheld, and no more." It further argues, inter alia, that the Hospital's interpretation is inconsistent with broad legal principles related to payment of attorneys' fees, the Federal Circuit's previous decision in this case, and section 7430 of the Internal Revenue Code. Judge Roumel agrees with the Hospital that the plain text of section 3102(b) includes reimbursement of its attorneys' fees and costs as part of the Government's indemnity obligation. First, the Hospital argues that (i) the plain meaning of "indemnified" in section 3102(b) covers attorneys' fees and costs, and (ii) "there is a presumption that indemnification encompasses attorneys' fees and costs" absent express language to the contrary, which section 3102(b) lacks. The Government contends that the statute's plain language limits the Government's indemnity obligation "to reimbursement for the employer's payment of the FICA tax imposed on the employee." Judge Roumel agrees with the Hospital that the plain meaning of the statute encompasses indemnity of both the settlement amount and the costs and fees incurred in defending against the claims and demands asserted in the underlying cases. Indeed, section 3102(b) unambiguously enumerates the type of claims for which the Government must indemnify employers, and "indemnity" was understood to include attorneys' fees and costs when Congress enacted the predecessor to section 3102(b). Notwithstanding the plain and ordinary meaning of the term "indemnify," the Government argues that interpreting section 3102(b) to include attorneys' fees and costs conflicts with several bodies of law. The Government contends that awarding the Hospital attorneys' fees and costs under section 3102(b) violates the American Rule regarding attorneys' fees. It further argues that the Hospital's interpretation of section 3102(b) conflicts with the Internal Revenue Code's mechanism for awarding litigation costs and with the Federal Circuit's interpretation of section 3102(b). Finally, the Government argues that Congress would not have adopted a statute that would permit "open-ended" liability, as it asserts the Hospital's interpretation might permit. The Government's concerns are misplaced, Judge Roumel holds. He finds that the legislative history reflects that Congress sought to place a monetary cap on the Government's indemnity obligation. A monetary cap does not "provide an 'extraordinary showing of contrary intentions'" that would lead this Court to conclude that section 3102(b) excludes attorneys' fees and costs. He also finds that indemnity obligations, such as the Government's under section 3102(b), are distinct from laws authorizing fee shifting of "attorneys' fees qua attorneys' fees." Accordingly, section 7430 does not alter the Government's stand-alone indemnity obligation under section 3102(b). Moreover, the Hospital does not seek to shift fees to the Government because the Hospital prevailed over the Government; it merely seeks to enforce the indemnity provision to the full extent enacted by Congress. Accordingly, the case does not implicate the American Rule. The it is also ultimately the Court's responsibility to ensure that the Government "renders prompt justice against itself" where appropriate. Justice means enforcing the plain text of Internal Revenue Code section 3102(b); the Government's indemnity obligation includes the Hospital's attorneys' fees and costs. Finally, the Hospital seeks indemnity for a sum far less than the amount of FICA taxes it withheld. It withheld from the Residents, and paid to the Government, approximately $9.1 million. However, it only seeks indemnification for approximately $8.3 million -- approximately $6.6 million for the settlement funds paid to the Residents and approximately $1.7 million in attorneys' fees and costs incurred in litigating the claims and defenses in the consolidated class actions. Thus, as the Hospital is seeking nearly $800,000 less than any such monetary cap that the Government contends exists, it does not seek "more than the correct amount." For the reasons discussed, Judge Roumel grants the Plaintiff's Motion for Partial Summary Judgment. The parties are ordered to (1) file a Joint Notice, attaching a proposed public version of the Sealed Memorandum and Order, with any competition-sensitive or otherwise protected information redacted; and (2) file within 30 days of the Sealed Memorandum and Order a Joint Status Report indicating whether they consent to a value of judgment or, if the parties do not reach agreement, providing a schedule for future proceedings. A full-text copy of the Court's Aug. 12, 2022 Memorandum & Order is available at https://tinyurl.com/u423beus from Leagle.com. Boris Bershteyn -- boris.bershteyn@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York for the Plaintiff. With him on the briefs are Mollie Kornreich -- mollie.kornreich@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York; Fred T. Goldberg, Jr. -- fred.goldberg@skadden.com -- and Sylvia O. Tsakos -- sylvia.tsakos@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, Washington, District of Columbia. Matthew D. Lucey, United States Department of Justice, Tax Division, Court of Federal Claims Section, Washington, District of Columbia for the Defendant. With him on the briefs are David I. Pincus, Chief, Court of Federal Claims Section; and David A. Hubber, Deputy Assistant Attorney General, Tax Division. UNITED STATES: Suit Seeks to Certify Health-Care Providers Class ---------------------------------------------------------------- In the class action lawsuit captioned as Susan Neese, M.D and James Hurly, M.D., on behalf of themselves and others similarly situated, v. Xavier Becerra, in his official capacity as Secretary of Health and Human Services; United States of America, Case No. 2:21-cv-00163-Z (N.D. Tex.), the Plaintiffs Susan Neese and James Hurly moves the Court to certify the following class under Rule 23(b)(2) of the federal rules of civil procedure: "All health-care providers subject to section 1557 of the Affordable Care Act." Health and Human Services is an agency of the federal government and a description of a wide range of careers within the medical and mental health fields. A copy of the Plaintiffs' motion to certify class dated Aug. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3CsQ4c3 at no extra charge.[CC] The Plaintiffs are represented by: Jonathan F. Mitchell, Esq. MITCHELL LAW PLLC 111 Congress Avenue, Suite 400 Austin, TX 78701 Telephone: (512) 686-3940 Facsimile: (512) 686-3941 E-mail: jonathan@mitchell.law - and - Gene P. Hamilton, Esq. Vice-President and General Counsel America First Legal Foundation 300 Independence Avenue SE Washington, DC 20003 Telephone: (202) 964-3721 (phone) E-mail: gene.hamilton@aflegal.org The Defendants are represented by: Jeremy S.B. Newman, Esq. UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 1100 L Street N.W. Washington, DC 20005 Telephone: (202) 532-3114 Facsimile: (202) 616-8460 E-mail: jeremy.s.newman@usdoj.gov VALVE CORP: Interim Co-Lead Class Counsel Named in Antitrust Suit ----------------------------------------------------------------- In the case, In re VALVE ANTITRUST LITIGATION, Lead Case No. C21-0563-JCC (W.D. Wash.), Judge John C. Coughenour of the U.S. District Court for the Western District of Washington, Seattle, grants the Plaintiffs' unopposed motion to appoint interim co-lead class counsel. Following the Court's most recent order consolidating actions, the Plaintiffs jointly move for the appointment of interim co-lead class counsel. According to their motion, they seek to designate Vorys, Sater, Seymour and Pease LLP to serve as an Executive Committee, with Quinn Emanuel Urquhart & Sullivan, LLP, Constantine Cannon LLP, Lockridge Grindal Nauen P.L.L.P. ("Lockridge"), and Wilson Sonsini Goodrich & Rosati, P.C. ("WSGR") to serve as Co-Lead Class Counsel. They assert this structure provides an efficient and productive way to move the consolidated matter forward. The Plaintiffs assert that Vorsys, Quinn Emanuel, Constantine Cannon, Lockridge, and WSGR, collectively and individually, have (a) spent significant time investigating and challenging Defendant's alleged anticompetitive conduct and (b) possess the requisite experience, legal knowledge, and resources to reach a favorable resolution of the matter for the named Plaintiffs and the putative class. They also contend that a co-leadership structure, such as the one proposed here, is common for complicated putative class actions. Moreover, they contend that the proposed structure adequately and fairly represents all class interests. In support, they provide evidence of the firms' experience and credentials, along with legal citation to similar structures in comparable actions. Absent opposition from the Defendant, and there is none, Judge Coughnour sees no reason to doubt these contentions. For the foregoing reasons, the motion for appointment of interim co-lead class counsel is granted. The leadership structure for the class action, and for any other subsequently-filed class action consolidated into the action, will consist of the following: Vorys will serve as an Executive Committee, while Quinn Emanuel, Constantine Cannon, Lockridge, and WSGR will serve as Interim Co-Lead Class Counsel. A full-text copy of the Court's Aug. 12, 2022 Order is available at https://tinyurl.com/57zhwp3c from Leagle.com. WALBRIDGE ALDINGER: Rice Seeks Unpaid Overtime Wages Under FLSA --------------------------------------------------------------- COLIN RICE, individually and for others similarly situated v. WALBRIDGE ALDINGER LLC, Case No. 2:22-cv-11790-DPH-JJCG (E.D. Mich., Aug. 3, 2022) seeks to recover unpaid overtime wages and other damages from WALLC under the Fair Labor Standards Act. Mr. Rice brings this lawsuit individually and on behalf of all current and former hourly workers who worked for WALLC and were paid straight time for overtime -- that is, paid the same hourly rate for all hours worked each week, including those over 40. The Plaintiff and the Putative Class Members regularly worked for the Defendant in excess of 40 hours each week. But WALLC did not pay them overtime of at least one and one-half their regular rates for all hours worked in excess of 40 hours per workweek. Instead of paying overtime as required by the FLSA, WALLC improperly classified Plaintiff and the Putative Class Members as independent contractors ineligible for overtime, and paid them the same hourly rate for all hours worked, including those in excess of 40 in a workweek. This practice violates the overtime requirements of the FLSA, the Plaintiff contends. The Plaintiff worked for the Defendant from March 2021 until November 2021 as an Inspector in Spring Hill, Tennessee. WALBRIDGE ALDINGER LLC is engaged in providing construction services and support across a variety of industries, including in manufacturing.[BN] The Plaintiff is represented by: Jennifer L. McManus, Esq. FAGAN MCMANUS, PC 25892 Woodward Avenue Royal Oak, MI 58067-0910 Telephone: (248) 542-6300 E-mail: jmcmanus@faganlawpc.com - and - Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Alyssa White, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com awhite@mybackwages.com - and - Richard J. (Rex) Burch. Esq. BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com WESTERN WASHINGTON: Breaches Fiduciary Duties, Johnson Suit Says ---------------------------------------------------------------- Terrance Johnson, Brent Yahraus, and Jacy Purkiss, individually and as the representatives of a class of similarly situated persons, and on behalf of the Carpenters of Western Washington Individual Account Pension Plan and the Carpenters Retirement Plan of Western Washington v. Carpenters of Western Washington Board of Trustees, et al., Case No. 2:22-cv-01079 (W.D. Wash., Aug. 2, 2022) alleges that the Defendants have breached their fiduciary duties with respect to the Plans in violation of the Employee Retirement Income Security Act of 1974 (ERISA), to the detriment of the Plans and their participants and beneficiaries. The Plaintiffs bring this action to remedy the Defendants' unlawful conduct, prevent further mismanagement of the Plans, and obtain equitable relief as provided by ERISA. The Defendants in this case were responsible for investing the savings of over 15,000 carpenters. These carpenters counted on the Defendants to make prudent investments that would allow them to retire when the time came. Instead, the Defendants put a huge chunk of the carpenters' retirement savings into speculative investments that were inappropriate for these participants. As a result, the plans lost over $250 million. Now, these carpenters must work years longer before they can retire, and live more modest lifestyles once they belatedly retire, says the suit. The Plaintiffs are participants in two retirement plans: the DC Plan and Pension Plan. These are collectively bargained retirement plans that make up the entirety of retirement benefits for union carpenters in Washington, Idaho, Montana, and Wyoming. All union carpenters in these states are automatically enrolled in both Plans. The Pension Plan is a cash balance defined benefit plan that provides periodic payments to retired participants and includes a variable feature not typically associated with pension plans. In other words, like the DC Plan, the Pension Plan's investment outcomes impact the amount of benefits participants receive. Over 21,000 union carpenters were enrolled in the Pension Plan as of the end of 2020, including 6,300 carpenters currently receiving benefits, 4,600 retired or separated carpenters entitled to future benefits, 1,700 beneficiaries of 19 participants, and 8,400 active participants. The Defendants include Callan LLC, Gerald Auvil, Randy Boettcher, Dee Burch, Tony Edwards, Ken , Jeff Foushee, James Gleason, Heath Hansen, Jeff Harms, Kurt Hildebrand, Steve Hoffmann, Martin Holberg, Dan Hutchins, Jeremiah Johnson, Eric Jones, Andrew Ledbetter, Gayland Looney, Marlo Martinez, Jim Osborne, Anthony Pena, Doug Peterson, Rick Poitras, Scott Schaefer, Evelyn Shapiro, Frank Spencer, Bob Susee, Doug Tweedy, Clancy Welsh, Wilf Wainhouse, and Does 1-20.[BN] The Plaintiff is represented by: Marie E. Casciari, Esq. DEBOFSKY LAW, LTD. 111 Queen Anne Ave North, Suite 201 Seattle, WA 98109 Telephone: (206) 333-2696 E-mail: mcasciari@debofsky.com - and - Carl F. Engstrom, Esq. ENGSTROM LEE MCDONOUGH THOMPSON & THOMSON LLC 1330 Lagoon Ave, Fl 4 Minneapolis, MN 55408 Telephone: (612) 293-8488 E-mail: cengstrom@engstromlee.com mthomson@engstromlee.com - and - Paul B. Derby, Esq. Hajir Ardebili, Esq. SKIERMONT DERBY LLP 633 West Fifth Avenue, Suite 5800 Los Angeles, CA 90071 Telephone: (213) 788-4500 E-mail: pderby@skiermontderby.com hardebili@skiermontderby.com WHITING-TURNER/KOKOSING: Class Cert. Denial in Vance Suit Affirmed ------------------------------------------------------------------ In the case, ANDREW VANCE, Appellant v. WHITING-TURNER/KOKOSING JOINT VENTURE, Appellee, Case No. 2021-CA-1394-ME (Ky. App.), the Court of Appeals of Kentucky affirms the Boone Circuit Court's order, entered Nov. 24, 2021, denying Vance's motion for class certification. Appellee Whiting-Turner/Kokosing Joint Venture ("WTK"), is the general contractor overseeing the construction of a new Amazon Distribution Center in Boone County, Kentucky. As part of the construction process, dynamite blasting commenced in August 2019 and lasted for approximately two years. In May 2020, Vance, a residential homeowner who lives near the construction site, filed a petition seeking damages based on allegations that the blasting, which was conducted under WTK's supervision, constituted a temporary nuisance. The petition was later amended to include a claim for permanent diminution in value, also known as stigma damages. Thereafter, Vance moved to certify a proposed class consisting of all residential property owners within a one-mile radius of the construction project who acquired their property on or before Aug. 14, 2019. In support, he included 22 disclosures from residents living in or near the proposed class boundaries detailing their experiences of the blasting and the ascribed damages, emails from various individuals discussing complaints from local businesses and residents and WTK's responses thereto, and a declaration from a licensed realtor who opined that the blasting has created reputational damage to the class members' properties resulting in a 10-15% reduction in fair market value. After arguments and extensive briefing, the circuit court denied certification, and the interlocutory appeal followed. Mr. Vance asserts the court misinterpreted the requirements for proving stigma damages. First, regarding the cost of repairs, Vance argues the Court of Appeals held, in Mountain Water District v. Smith, 314 S.W.3d 312 (Ky. App. 2010), that Kentucky law does not require a claimant to establish the cost of repair when diminution in value is the only damage sought. Accordingly, he opines that the court erred in denying certification based on the erroneous conclusion such evidence was necessary. The Court of Appeals disagrees with Vance's reading of Smith. The case does not hold that cost of repair evidence is never required in diminution actions but, rather, the Smith Court held as an exception to the general rule that such evidence was not necessary when the claimants expressly plead irreparable injury and present evidence to that effect. Since Vance has not made a similar claim or presentation of evidence, the exception is not applicable. Clearly, the cost of repair is necessary evidence for a claim for stigma damages; therefore, the Court of Appeals disagrees that the court erred in considering the need for individualized evidence on the issue. The Court of Appeal's review is not complete however, as the need for individual damages determinations does not wholly bar class certification. It is, nevertheless, an important factor to its ultimate determination of whether common issues and facts predominate. It turns now to Vance's remaining argument. As to proof of an actual injury, Vance concedes it is an essential element for stigma damages and seemingly acknowledges that claims based on physical harm to the property would require evidence on a property-by-property basis. Nevertheless, he maintains that the court erred in finding that individualized proof would be required where he has presented ample evidence that the class as a whole was deprived the use and enjoyment of their property. The Court of Appeals again disagrees. It says, while Vance is correct that the unreasonable interference of an owner's use and enjoyment of a property can satisfy the requirement of an actual injury, the nature of the injury does not impact the burden of proof. The interplay between the proof necessary to establish an actual injury and the preponderance requirement for class certification was considered. The Court of Appeals cannot say the court erred by denying certification. The blasting occurred in different locations over a two-year period, and Vance has cited multiple types of injuries -- excessive vibrations, loud noises, personal items moving or falling, cracks in surfaces, sinking foundations, separation of porches, dust, and family pets being disturbed. The complete lack of uniformity regarding causation and injury underscores the glaring need for individualized proof in this matter which extends beyond the issue of determining damages. Accordingly, the Court of Appeals concludes that Vance has failed to satisfy the predominance requirement of CR 23.02(c) and, thus, the court did not abuse its discretion in denying the proposed class certification. Therefore, the order of the Boone Circuit Court is affirmed. All concur. A full-text copy of the Court's Aug. 12, 2022 Opinion is available at https://tinyurl.com/mr3hectt from Leagle.com. Ronald R. Parry -- rrparry@strausstroy.com -- Cincinnati, Ohio, Philip Taliaferro, III, Erlanger, Kentucky, Alexander F. Edmondson -- aedmondson@edmondsonlaw.com -- Covington, Kentucky, Christopher Wiest -- chris@cwiestlaw.com -- Crestview Hills, Kentucky, BRIEFS FOR THE APPELLANT. Edward H. Stopher -- estopher@bsg-law.com -- Earl L. Martin III -- emartin@bsg-law.com -- Louisville, Kentucky, BRIEF FOR THE APPELLEE. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2022. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***