/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220901.mbx C L A S S A C T I O N R E P O R T E R Thursday, September 1, 2022, Vol. 24, No. 169 Headlines 32ND STREET: Nethercutt Files FLSA Suit in E.D. Kentucky ABBOTT LABORATORIES: Mailhiot Suit Transferred to N.D. Illinois ABBOTT LABORATORIES: Whitmore Files Suit in C.D. California ABBOTT LABRATORIES: Andaluz Suit Transferred to N.D. Illinois AERO MANUFACTURING: Fails to Pay Overtime Wages, Gastineau Claims AEROPORTS DE MONTREAL: Faces Suit Over Late-Night Operating Hours AIRGAS USA: Chiesa Files Suit in Cal. Super. Ct. ALLEN COUNTY, IN: Atkins Has Until Sept. 15 to Amend Complaint AMERICAN FIRST: Court Denies Bid to Certify Class in Andrade Suit AMERICAN GAMING SUPPLY: Jones Files ADA Suit in S.D. New York AMPIO PHARMACEUTICALS: Kain Sues Over Decline in Stock Market Value ANTHEM COMPANIES: Fails to Pay Proper Wages, Burrus Alleges ANYWHERE REAL: California Court Certifies TCPA Class Action APPLE INC: Bartling Appeals Dismissal of Processor Defect Case ARDAGH METAL: Bid to Remand Diaz Suit to Solano Super. Ct. Denied ARDIAN CORP: Court Denies Bid to Certify Class in Avila Labor Suit AT&T PENSION: Grosso Appeals ERISA Suit Dismissal to 2nd Cir. B & P COMPANY: Bunting Files ADA Suit in E.D. New York BALL METAL: Discovery Allowed Before Final Okay of Westfall Deal BANK OF AMERICA: Park Sues Over Liability for Unauthorized Deals BAYER US: Averts Class Action Over Benzene in Spray Health Products BED BATH: Rosen Law Firm Investigates Potential Securities Claims BEVERLY HILLS: Fails to Pay Proper Wages, Catalano Suit Alleges BISCO INDUSTRIES: Faces Kirchwehm Class Suit Over Improper Wages BLOOMBERG LP: Graham Sues Over Unlawful Disclosure of Identities BLUE SKY: Faces Class Action Over Misleading Financial Statements BOYLAN BOTTLING: Martinez Files ADA Suit in E.D. New York BP EXPLORATION: Court Dismisses Cotton's Claims With Prejudice BP EXPLORATION: Court Refuse to Extend Deadlines in Gentry Suit BP EXPLORATION: Court Tosses All of Bryant's Claims With Prejudice BP EXPLORATION: Court Tosses All of Learn's Claims With Prejudice BRUCE'S PRIME RIBS: Valencia Sues Over Unpaid Compensation BUMBLE INC: Hearing Will Be Held on Naming of Lead Roles in UA Suit CALIFORNIA SEASHELL: Toro Files ADA Suit in S.D. New York CALIFORNIA: Cheng Appeals TCPA Suit Dismissal to 9th Circuit CANUS CORP: Bids for Judgment on Pleadings in Giles Suit Granted CBDMD INC: $300,000 Deal in Data Breach Class Suit Wins Final OK CEACO INC: Toro Files ADA Suit in S.D. New York CHRISTMAS IN PRESCOTT: Toro Files ADA Suit in S.D. New York CO-DIAGNOSTICS INC: Stadium Capital Hits Share Price Drop COINBASE GLOBAL: Faces Class Suit in Georgia Over Security Lapses COLLEGE CHEFS: Mayes Sues to Recover Unpaid Overtime Wages COMMONWEALTH EDISON: Judge Dismisses $150MM Bribery Scheme Suit COMMUNITY SURGICAL: Viruet Files Suit Over Data Breach CONOCOPHILLIPS COMPANY: Krempasky Sues Over Inspectors' Unpaid OT CONTROL GROUP: Appeals Denial of Bid to Dismiss Camacho Suit CONVERSE INC: Order in Campos Suit to Start No Earlier Than Nov. 13 COOK COUNTY, IL: Review of Class Cert. Denial in Elizarri Denied DEBTSY INC: Winter Files FDCPA Suit in S.D. Illinois DOMETIC CORPORATION: Slade Files ADA Suit in S.D. New York DUMBO MOVING: Brkic Files FLSA Suit in S.D. New York ENDLESS GAMES: Senior Files ADA Suit in S.D. New York ENERGY TRANSFER: Robbins Geller Named Lead Counsel in Vega Suit EVMO INC: Faces Greenberg Suit Over Unsolicited Telephone Calls EVOL NUTRITION: Court Dismisses Womack's First Amended Complaint FAIRHOLME FUNDS: Seeks More Time to File Writ of Certiorari FERMENTED SCIENCES: Allen Sues Over Mislabeled Alcoholic Beverages FIAT CHRYSLER: Bagley Suit Transferred to E.D. Michigan FLAG FABLES INC: Toro Files ADA Suit in S.D. New York FPI MANAGEMENT: Lewis Files Suit in Cal. Super. Ct. FRITO-LAY INC: Montgomery FLSA Suit Transferred to S.D. New York GAMESTOP INC: Collects Private Info Without Consent, Aldana Says GEICO CASUALTY: Purcell Appeals Insurance Suit Dismissal to 3rd Cir GEICO CHOICE: Jones Appeals Insurance Suit Dismissal to 3rd Cir. GOLDMAN SACHS: June 5 Trial Date Set for Gender-Bias Class Action GOODYEAR TIRE: Byars Sues Over Illegal Wiretapping GOYA FOODS: Morel's Bid for Leave to File 2nd Amended Suit Denied HDX WILL: Valdovinos Balks at Educational Specialists' Unpaid Wages HN & SONS LLC: Pagano Files Class Suit Over Alleged Tip Skimming I.J. BAYRAKDARIAN: Trujillo Sues Over Unpaid Overtime Wages ICE ROVER INC: Slade Files ADA Suit in S.D. New York KEEP HEALTHY INC: Senior Files ADA Suit in S.D. New York KHAYLIE HAZEL YEARNING: Martin Files TCPA Suit in N.D. Mississippi KIA CORP: Cincinnati Car Owners Sue Over Vehicles' Theft Risks KOFFEE KUP: Judge Certifies Class Action Over WARN Violations LEPRINO FOODS: Bid to Substitute Class Rep in Bates Suit Granted LLOYD J. AUSTIN: Schneider Files Suit in S.D. Texas LOTTERY.COM INC: Bids for Lead Plaintiff Appointment Due Oct. 18 LOTTERY.COM: Gainey McKenna Reminds of Oct. 18 Lead Plaintiff Due LYONS MAGNUS: Katen Sues Over Misleading Product Label MAJESTIC CARE STAFF: Joseph Files FLSA Suit in S.D. Indiana MALLINCKRODT ARD: MSP Granted Leave to File Third Amended Complaint MARMON HOLDINGS: Lard Sues for Breach of Fiduciary Duties MARYMOUNT MANHATTAN: Marano Sues Over Failure to Secure PII MCKENZIE BREW: Fails to Pay Proper Wages, Carrozza Suit Alleges MDL 2873: Rickey Suit Claims PFAS Exposure From AFFF Products MDL 2873: Savage Suit Claims PFAS Exposure From AFFF Products MDL 2873: Stevenson Suit Claims PFAS Exposure From AFFF Products MDL 2873: Suarez Alleges Injury From Exposure to Toxic PFAS MDL 2873: Watkins Suit Claims PFAS Exposure From AFFF Products MDL 2873: Weiss Alleges Injury From Exposure to Toxic PFAS MDL 2873: Woods Suit Claims PFAS Exposure From AFFF Products MEMPHIS, TN: DNA Rape Kits Class Action Hearing Set Oct. 20-21 MESOBLAST LIMITED: Court OK's Plan of Allocation in Kristal Suit METALTEK INTERNATIONAL: Herman Sues Over Unpaid Overtime Wages MICHIGAN STATE UNIVERSITY: Files Writ of Certiorari in Balow Suit MINISO GROUP: RM Law Reminds of Oct. 17 Lead Plaintiff Deadline MOBILE FIDELITY: Stiles Sues Over Unfair and Deceptive Practices MORGAN STANLEY: Bid to Intervene in Harvey Suit Affirmed in Part MVP EVENT: Holmes Sues Over Failure to Properly, Timely Pay Wages NATIONAL GENERAL: Gutierrez Suit Removed to S.D. California NATURES SUNSHINE: Maddy Files ADA Suit in S.D. New York NEMS INC: Cromitie Files ADA Suit in S.D. New York NEW JERSEY TRANSIT: Superior Court Affirms Alleyne Suit Dismissal NISSAN NORTH AMERICA: Graham FDCPA Suit Removed to E.D. New York NOMI HEALTH: Servidori Sues Over Unpaid OT & Unreimbursed Expenses NORTH CAROLINA: Bid for Class Cert. in Perez v. Huneycutt Denied OEI HOLDINGS: Alcazar's Bid for Prelim. OK of $397.5K Deal Denied ONLINE INFORMATION: Friedman FDCPA Suit Removed to E.D. New York ORACLE CORP: Faces Privacy Class Action Lawsuit in California ORIGINAL TIME CAPSULE: Jones Files ADA Suit in S.D. New York OWL CREEK: Seeks Extension of Time to File Writ of Certiorari PANERA BREAD: Faces Suit Over "Unlimited Sip Club" Subscriptions PEPPERIDGE FARM: Bid to Dismiss or Strike Hill's Class Claims Nixed PIG & HEN INC: Martinez Files ADA Suit in E.D. New York PJETRO JUNCAJ: Moina Sues Over Unpaid Overtime Compensation PLANNED LIFESTYLE: Tapia Files Suit in Cal. Super. Ct. POINTSBET USA: Sued Over Online Gambling's Risk-Free Bets, Refunds PORTFOLIO RECOVERY: Charles Appeals Suit Dismissal to 9th Cir. PRACTICEMAX INCORPORATED: Witkowski Files Suit in D. Arizona PROPETRO HOLDING: $30M Settlement in Shareholders' Suit Proposed RB HEALTH (US): Nacarino Sues Over False and Deceptive Marketing RELIANT PRO REHAB: Haggerty Sues Over Failure to Pay Overtime Wages RUBY & QUIRI: Cromitie Files ADA Suit in S.D. New York SACRAMENTO NATIVE: Will Files Suit in Cal. Super. Ct. SAM TUCKER: Senior Files ADA Suit in S.D. New York SCUDDER LAW FIRM: Stein Suit Transferred to E.D. Tennessee SHELLPOINT MORTGAGE: Perry Suit Removed to D. Massachusetts SINOVAC BIOTECH: Bids for Lead Plaintiff Appointment Due Oct. 17 SNAP INC: Settles Biometric Data Class Action for $35 Million SONY CORP: Faces $5.9BB Class Action Over PlayStation Digital Games SOUTHWEST AIRLINES: Bevacqua Sues Over Improper Security Fees STERLING JEWELERS: Byars Sues Over Alleged Illegal Wiretapping STERLING JEWELERS: Phillips Sues Over Employee Mistreatment SUGAR CREEK: Cordell Suit Stayed Pending Ruling on Cert. Process SUPER STORE INDUSTRIES: Alvarez Files Suit in Cal. Super. Ct. SYNCREON TECHNOLOGY: Faces Grant Wage-and-Hour Suit in California T-MOBILE USA: $350MM Data Breach Settlement Awaits Court Approval TANYA ZUCKERBROT: Slade Files ADA Suit in S.D. New York TEXAS: Class Action Mulled Over Uvalde School Mass Shooting TEXAS: Southern District of Texas Dismisses Bennett v. State Bar THERANOS INC: Faces Class Action Over Laboratory Testing Services THOMAS L. CARDELLA: Class in Munoz Suit Conditionally Certified TLC SOLUTIONS: Misclassifies Employees, Pineda et al. Claim TOYOTA MOTOR: Cardenas' Bid to Reject Butler's Expert Opinion Nixed TOYOTA MOTOR: Court Won't Exclude Wilcox Opinions in Cardenas Suit TRUSTCO BANK: New York Court Narrows Claims in Jenkins Class Suit TUYA INC: Wolf Haldenstein Reminds of Oct. 11 Lead Plaintiff Due UMG COMMERCIAL SERVICES: Maddy Files ADA Suit in S.D. New York UNITED NATURAL: Gonzalez Sues Over Failure to Timely Pay Wages VALVE CORP: Antitrust Suit Parties to File Joint Scheduling Order VIRGIN SCENT: Files 9th Cir Appeal Over Remand Order in Deans Suit WELLS FARGO: Stockholders Class Certified in Purple Mountain Suit WHOLESALE FURNITURE: Cromitie Files ADA Suit in S.D. New York WILLIAM DOUGLAS: Great Point Sues Over Breach of Fiduciary Duty WILLIAMS TANK LINES: Fleming Files Suit in Cal. Super. Ct. WYETH BIRCH: Cromitie Files ADA Suit in S.D. New York YUMA REGIONAL MEDICAL: Chacon Files Suit in D. Arizona ********* 32ND STREET: Nethercutt Files FLSA Suit in E.D. Kentucky -------------------------------------------------------- A class action lawsuit has been filed against 32nd Street Used Tires, Inc., et al. The case is styled as Carissa Nethercutt, individually and on behalf of all others similarly situated v. 32nd Street Used Tires, Inc., Steven M. Dalton, Case No. 0:22-cv-00066-DLB-EBA (E.D. Ky., Aug. 19, 2022). The lawsuit is brought over alleged violation of the Fair Labor Standards Act for Denial of Overtime Compensation. 32nd Street Used Tires, Inc. is a tire shop in Ashland, Kentucky.[BN] The Plaintiff is represented by: Mark N. Foster, Esq. LAW OFFICE OF MARK N. FOSTER P. O. Box 192 Rockwood, TN 37854 Phone: (865) 354-3333 Fax: (865) 354-4442 Email: mfoster@marknfoster.com ABBOTT LABORATORIES: Mailhiot Suit Transferred to N.D. Illinois --------------------------------------------------------------- The case is styled as Amy Mailhiot, individual, on behalf of herself, her minor child, P.M. and all others similarly situated on behalf of P.M. v. Abbott Laboratories, Inc. doing business as: Abbott Nutrition, Case No. 5:22-cv-00091 was transferred from the U.S. District Court for the District of Vermont, to the U.S. District Court for the Northern District of Illinois on Aug. 18, 2022. The District Court Clerk assigned Case No. 1:22-cv-04354 to the proceeding. 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, United States.[BN] The Plaintiff is represented by: Thomas C. Bixby, Esq. LAW OFFICES OF THOMAS C. BIXBY, LLC P.O. Box 6586 Rutland, VT 05702 Phone: (802) 775-3229 Fax: (802) 775-0238 Email: tcblawvt@gmail.com The Defendant is represented by: Matthew B. Byrne, Esq. GRAVEL & SHEA PC 76 St. Paul Street, 7th Floor P.O. Box 369 Burlington, VT 05402-0369 Phone: (802) 658-0220 Email: mbyrne@gravelshea.com ABBOTT LABORATORIES: Whitmore Files Suit in C.D. California ----------------------------------------------------------- A class action lawsuit has been filed against Abbott Laboratories Inc., et al. The case is styled as Carl Whitmore, Amanda Corvelli, Cherrell R Raymond, Michelle Mason, Nathalie Colombo, Catrice Grigsby, Victoria J. Deffebaugh, Adriana Garza, Jasmyn Menendez, Claresa Lyons, Cindy Lopez Bazemore, Kelsey McCord, Brittany Johnson, Jordan Boysen, Samandria Harkless; Cierra Walker, Individually and on Behalf of the Estate of S.H., a Minor; Israel Ephraim, individually, and as legal guardian of T.B., a minor child; Zelda Berger, individually, and as legal guardian of T.B., a minor child; Luis A Suarez, individually and as legal guardian of A.S., a minor child; Tyler Abbott, Ivan Omar Fonseca Munoz, Abigail Laciste, as legal guardian of K.L., a minor; Daniel Laciste, as legal guardian of K.L., a minor; Kelli Green, Nicole Joy, Individually, and as legal guardian of C.R., a minor child; Anna Langer, Individually, and as Next Friend of A.G., a Minor; Andriana Sanders, individually and on behalf of her minor child, A.J.; Amy Mailhiot, individual, on behalf of herself, her minor child, P.M. and all others similarly situated on behalf of P.M.; Trevor Stephens, Individually and as Next Friend of BS, a Minor; Arturo Andaluz, Cynthia Salinas, Individually and and personal representative of the Estate of A.Z, a minor, deceased; Clarissa Ornelas, Individually and as Next Friends of A.B., a Minor; Jane Hernandez, Individually and as Next Friend of A.R., A Minor; Paige Marceaux, individually and as natural tutrix of S S; Taylor Diebert, Individually and on behalf of her minor child B-D; and on behalf of all others similarly situated v. Abbott Laboratories Inc., Magdalena Maggie Mendoza, Individually and as Next Friend of K.S., a Minor; Anthony Bermudez, Individually and as Next Friends of A.B., a Minor; Case No. 2:22-cv-05521-SPG-MAR (C.D. Cal., Aug. 5, 2022). The nature of suit is stated as Other Contract for Breach of Contract. Abbott Laboratories -- https://www.abbott.com/ -- is an American multinational medical devices and health care company with headquarters in Abbott Park, Illinois, United States.[BN] The Plaintiffs are represented by: Lirit Ariella King, Esq. Kiley Lynn Grombacher, Esq. Marcus Bradley, Esq. BRADLEY GROMBACHER LLP 31365 Oak Crest Drive Suite 240 Westlake Village, CA 91361 Phone: (805) 270-7100 Email: lking@bradleygrombacher.com kgrombacher@bradleygrombacher.com mbradley@bradleygrombacher.com - and - Caitlyn P. Miller, Esq. Ephraim S. Geisler, Esq. Sin-Ting Mary Liu, Esq. AYLSTOCK WITKIN KREIS AND OVERHOLTZ PLLC 17 East Main Street, Suite 200 Pensacola, FL 32502 Phone: (850) 326-0180 Email: cmiller@awkolaw.com sgeisler@awkolaw.com mliu@awkolaw.com The Defendants are represented by: James F. Hurst, Esq. KIRKLAND AND ELLIS LLP 300 North LaSalle Chicago, IL 60601-9703 Phone: (312) 862-2000 Email: james.hurst@kirkland.com ABBOTT LABRATORIES: Andaluz Suit Transferred to N.D. Illinois ------------------------------------------------------------- The case styled as Arturo Andaluz, on behalf of themselves and all others similarly situated v. Abbott Labratories, Inc., Case No. 2:22-cv-02001 was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Northern District of Illinois on Aug. 19, 2022. The District Court Clerk assigned Case No. 1:22-cv-04157 to the proceeding. The nature of suit is stated as Real Property: Tort Product Liability. Abbott Laboratories -- http://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: Lirit Ariella King, Esq. Marcus Bradley, Esq. Kiley Lynn Grombacher, Esq. BRADLEY GROMBACHER LLP 31365 Oak Crest Drive Suite 240 Westlake Village, CA 91361 Phone: (805) 270-7100 Email: lking@bradleygrombacher.com mbradley@bradleygrombacher.com kgrombacher@bradleygrombacher.com - and - Sin-Ting Mary Liu, Esq. Caitlyn P. Miller, Esq. Ephraim S. Geisler, Esq. AYLSTOCK WITKIN KREIS AND OVERHOLTZ PLLC 17 East Main Street, Suite 200 Pensacola, FL 32502 Phone: (510) 698-9566 Email: mliu@awkolaw.com cmiller@awkolaw.com sgeisler@awkolaw.com The Plaintiff is represented by: Tammy Ann Tsoumas, Esq. KIRKLAND AND ELLIS LLP 2049 Century Park East Suite 3700 Los Angeles, CA 90067 Phone: (310) 552-4200 Fax: (310) 552-5900 Email: tammy.tsoumas@kirkland.com AERO MANUFACTURING: Fails to Pay Overtime Wages, Gastineau Claims ----------------------------------------------------------------- ROYCE LEE GASTINEAU, individually, and on behalf of himself and other similarly situated current and former employees, Plaintiff v. AERO MANUFACTURING CO. INC., a New Jersey Corporation, AEROCUSTOM, INC., a Tennessee Corporation, AEROCUSTOM INCORPORATED, a Texas Corporation, and AERO MILL WORK, LLC, a Tennessee Limited Liability Company, Defendants, Case No. 1:22-cv-01176-STA-jay (W.D. Tenn., August 18, 2022) is a collective action complaint brought by the Plaintiff alleging the Defendants of violations of the Fair Labor Standards Act. The Plaintiff was employed by the Defendants from approximately January 2020 until February 2022, as a non-exempt worker and primarily performed general maintenance and electrical installation duties at the Defendants' Savannah, Tennessee manufacturing facility. The Plaintiff claims that although the he and other similarly situated workers worked more than 40 hours per week, the Defendants did not pay them overtime compensation at the applicable FLSA overtime rates of pay. Because the Plaintiff complained about not receiving overtime and reported the Defendants to the Tennessee Department of Labor, the Defendants terminated his employment. On behalf of himself and all other similarly situated workers, the Plaintiff seeks to recover all unpaid overtime compensation against the Defendants, as well as liquidated damages, reasonable attorneys' fees and litigation costs, pre- and post-judgment interest, and other relief as the Court deems just and equitable. The Corporate Defendants own and operate a manufacturing facility that manufactures commercial and consumer stainless steel products, including cabinets, sinks, shelving and tables and custom fabrication. [BN] The Plaintiff is represented by: Gordon E. Jackson, Esq. J. Russ Bryant, Esq. Robert E. Turner, Esq. Robert E. Morelli, Esq. JACKSON SHIELDS YEISER HOLT OWEN & BRYANT 262 German Oak Drive Memphis, TN 38018 Tel: (901) 754-8001 Fax: (901) 754-8524 E-mail: gjackson@jsyc.com rbryant@jsyc.com rturner@jsyc.com rmorelli@jsyc.com AEROPORTS DE MONTREAL: Faces Suit Over Late-Night Operating Hours ----------------------------------------------------------------- cbc.ca reports that Dwight Faithful has been living in Dorval for more than two decades, so he was well aware of what it's like to have Montreal's Trudeau Airport as a neighbour before he bought his current home 14 years ago. He was willing to live with the noise of planes during normal operational hours, if it allowed him to stay in the area. "Dorval is a great place to live. It's a well-managed city with great residents," said Faithful, who works in the aviation industry and appreciates the important role airports play. He puts up with low-flying planes all day as they zoom over his house, but it's the night flights that are becoming too much to handle, he said. "There are too many flights at night," said Faithful. While he knows some exceptions are inevitable, he says there are far too many late-night flights. That's why he's the lead plaintiff in a class-action lawsuit against Aeroports de Montreal (ADM). "We understand: Take-offs and landings during regular hours, no problem whatsoever. That's part of life living in Dorval. We'd like some peace and quiet at night, as per the rules," said Faithful. The class action is demanding compensation for past disturbances and for the late-night flights to stop. "You get to the point where you can hear the dishes rattling in the kitchen cabinets," said Faithful. The class action was filed about a month ago and residents have been signing on, he said. Others are encouraged to join the suit, he said. The airport does have flight restrictions for heavy wide-body jets. Take offs aren't allowed between midnight and 7 a.m. Landings are also restricted between 1 a.m. and 7 a.m. with certain exceptions. But the proposed class action claims those aren't followed. Air Canada, NAV Canada and the airport authority are all named in the lawsuit. They all declined to comment on the case, but Eric Forest, a spokesperson for ADM, said "it will vigorously defend itself against the proceedings filed by the plaintiff." "ADM has always treated soundscape management as a priority and in a rigorous manner in collaboration with its partners in order to promote a balance between flight operations and community cohabitation," Forest said in an email. He said the airport's operating hours have not changed in the last two decades. The ADM offers tools for citizens to keep track of aircraft movements, noise measurements and flight paths and allows for citizens to easily file complaints, Forest said. He said a public consultation was held two years ago on the subject of noise. Law student Christopher Blakeney has been assisting on the case. He said people in the area just want some peace. "We're not trying to shut down the airport. We're not trying to say there can't be emergency flights. Flights get delayed, that's understood, it's to have it so that they're not regular," he said. [GN] AIRGAS USA: Chiesa Files Suit in Cal. Super. Ct. ------------------------------------------------ A class action lawsuit has been filed against Airgas USA, LLC, et al. The case is styled as Eugene Chiesa, as an individual and on behalf of all others similarly situated v. Airgas USA, LLC, Does 1-50, Case No. 34-2022-00325292-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Aug. 17, 2022). The case type is stated as "Other Employment - Civil Unlimited." Airgas USA -- https://www.airgas.com/ -- is a distributor of industrial, medical and specialty gases as well as a product line of safety products, welding equipment, specialty tools, and MRO products.[BN] The Plaintiff is represented by: Larry W. Lee, Esq. DIVERSITY LAW GROUP 515 S Figueroa St., Ste. 1250 Los Angeles, CA 90071-3316 Phone: 213-488-6555 Fax: 213-488-6554 Email: lwlee@diversitylaw.com ALLEN COUNTY, IN: Atkins Has Until Sept. 15 to Amend Complaint -------------------------------------------------------------- Judge Holly A. Brady of the U.S. District Court for the Northern District of Indiana, Fort Wayne Division, grants the Plaintiff until Sept. 15, 2022, to file an amended complaint in the lawsuit titled CASEY ATKINS, Plaintiff v. ALLEN COUNTY SHERIFF OF, Defendant, Case No. 1:22-CV-203-HAB-SLC (N.D. Ind.) Atkins, a prisoner without a lawyer, filed a complaint seeking damages stemming from overcrowded conditions in the Allen County Jail. Nevertheless, under 28 U.S.C. Section 1915A, the Court must review the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant, who is immune from such relief. In addition to the complaint, Atkins filed an unsigned motion for summary judgment, arguing that he is entitled to judgment based on the findings in the class action Morris v. Sheriff of Allen County, No. 1:20-CV-34-DRL, 2022 WL 971098 (N.D. Ind. Mar. 31, 2022). In that case, the court certified a class of "all persons currently confined, or who would in the future be confined, in the Allen County Jail" under Federal Rule of Civil Procedure 23(b)(2) for injunctive and declaratory relief. The court found at summary judgment that certain conditions of confinement at the jail violated the Eighth and Fourteenth Amendments to the Constitution: "The overcrowding problem at the jail--which in turn has spawned an increased risk of violence, unsanitary and dangerous conditions in cells, insufficient recreation, and classification difficulties--has deprived this class of inmates 'the minimal civilized measure of life's necessities.'" The court entered a permanent injunction to address the overcrowding, lack of sufficient staffing and recreation, and inadequate supervision of prisoners and continues to monitor the remediation of the unconstitutional conditions. Mr. Atkins' summary judgment motion must be denied because it is unsigned, Judge Brady holds. However, even if it were signed, it would still be denied. Although Atkins is a member of the class in Morris, that class action was for declaratory and injunctive relief only. This means Atkins is not automatically entitled to damages; to receive damages he must allege how he personally was injured by any constitutional violation, Judge Brady points out. Simply being in the presence of unconstitutional conditions at the jail is not enough to claim damages under 42 U.S.C. Section 1983, unless Atkins himself was injured by the conditions, Judge Brady explains. Here, it is too soon to determine what preclusive effect the class action might have on an individual suit for damages, so the summary judgment motion would be denied even if it were signed. Because Atkins was a pretrial detainee, his claims must be assessed under the Fourteenth Amendment, Judge Brady states, citing Mulvania v. Sheriff of Rock Island Cnty., 850 F.3d 849, 856 (7th Cir. 2017). Beyond this, a pretrial detainee must also plausibly allege a defendant's "response was objectively unreasonable under the circumstances" and that the defendant acted purposely, knowingly, or recklessly with respect to the consequences of his actions. Here, Judge Brady finds that Atkins' allegations about the conditions at the jail are insufficient to state a claim without additional supporting details about the severity and duration of those conditions and their effect on him. Turning to the allegations in the complaint, Atkins alleges that his cellblock has 20 rooms with a total of 40 beds, intended to house 36 to 38 people. But he says there are more than 50 people there daily. He has slept on the floor his entire time at the jail. At 6' 6" tall, he does not comfortably fit on a "boat," so he must put his mattress directly on the floor. His mattress is next to the toilet, and he finds it disgusting to be laying right next to the toilet when people are using it. He alleges it smells like urine no matter how much he cleans it, and people have to use the toilet with him next to it. He complains that he is woken up at night when his cellmates have to use the toilet, and he sometimes get splashed on when his cellmates are urinating. He also says that he gets kicked, tripped over, and sometimes gets things dropped on him. Judge Brady holds that an allegation of sleeping on the floor, alone, does not state a claim. Sleeping on the floor can contribute to a denial of the minimal civilized measure of life's necessities. But the complaint lacks details about the severity and duration of disruptions to his sleep and its effect on him. Mr. Atkins alleges that during the day, the cells are locked and all 50-plus inmates must crowd into the day room. He says that some of them must eat sitting on the floor. He alleges the food portions "are not right," the food is always cold and unhealthy, and the food is watered down to make it stretch for all the inmates. Atkins is entitled to adequate nutrition. But Mr. Atkins' vague allegations about the food portions do not suggest that he suffered any harm resulting from the food portions he received, Judge Brady holds. Nor is it clear whether he, himself, ate sitting on the floor or how that harmed him. Mr. Atkins also alleges that he has not been offered recreation during his time at the jail. He explains that the inmates cannot get away from each other, which leads to arguments and fights. Lack of access to exercise may violate the constitution in extreme and prolonged situations where movement is denied to the point that the inmate's health is threatened. However, restrictions on recreation must be analyzed in light of the other opportunities the inmates have for out-of-cell activities. The complaint here is silent on the details surrounding Atkins' daily activities, Judge Brady notes. Finally, Mr. Atkins complains that staff does not respond adequately to medical emergencies because there are no call button in the cells or on the block, the jail does not offer religious services, and that there are classification issues leading to people being housed in the same block as rivals or co-defendants. But he does not allege that he, himself, was personally affected by any of these situations, so these allegations cannot form the basis of a Section 1983 claim, Judge Brady finds. Judge Brady also finds that the complaint does not state a claim for which relief can be granted. If he believes he can state a claim based on (and consistent with) the events described in this complaint, Judge Brady says Atkins may file an amended complaint because the usual standard in civil cases is to allow defective pleadings to be corrected, especially in early stages, at least where amendment would not be futile. Judge Brady says that to file an amended complaint, the Plaintiff needs to write this cause number on a Pro Se 14 (INND Rev. 2/20) Prisoner Complaint form which is available from his law library. After he properly completes that form addressing the issues raised in this order, he needs to send it to the Court. For these reasons, the Court: (1) denies the motion for summary judgment; (2) grants Casey Atkins until Sept. 15, 2022, to file an amended complaint; and (3) cautions Casey Atkins if he does not respond by the deadline, this case will be dismissed under 28 U.S.C. Section 1915A without further notice because the current complaint does not state a claim for which relief can be granted. A full-text copy of the Court's Opinion and Order dated Aug. 15, 2022, is available at https://tinyurl.com/ycy7r6df from Leagle.com. AMERICAN FIRST: Court Denies Bid to Certify Class in Andrade Suit ----------------------------------------------------------------- In the case, MARIA ANDRADE, Plaintiff v. AMERICAN FIRST FINANCE, INC., et al., Defendants, Case No. 18-cv-06743-SK (N.D. Cal.), Magistrate Judge Sallie Kim of the U.S. District Court for the Northern District of California denies the Plaintiff's motion for class certification and grants AFF's motion to deny class certification. AFF provides "purchase money loans for the sale of consumer goods through retailers with whom AFF has a preexisting relationship." It interacts with customers, such as Andrade, through retailers. AFF provides its marketing materials, credit application and security agreement forms, and a hyperlink to its pre-approval process to the retailers. Andrade alleges that AFF's role is not disclosed to consumers and that the retailer then purports to assign to AFF the Security Agreements that individual customers sign. On Dec. 9, 2015, Andrade purchased several pieces of furniture from Elegant Furniture in Fresno California. She alleges that she signed a purchase order, but she was not informed that her sale was being financed with AFF. She had no interaction with AFF and only interacted with the retailer, Elegant Furniture. A salesman with Elegant Furniture told Andrade that the payments for the furniture would be about $100 every month and "that if she paid for the furniture in full within 90 days of purchase there would be no interest." Ms. Andrade also alleges that another person at Elegant Furniture asked her to "confirm her debit account number for payment deductions" and that he gave her "a computer mouse and asked her to click the mouse to verify the account number." She did not see the face of the computer and believed that she was "only authorizing an automatic payment." Andrade further alleges that, without her knowledge, AFF "electronically prepared" an eight-page Security Agreement that she never saw or received and that it contained an annual percentage rate of 120%. She attached to her Second Amended Complaint a copy of the Security Agreement with her electronic signature. Ms. Andrade brings claims against AFF based on the terms of the financing with AFF, and she alleges, inter alia, that the interest rates AFF charged to her and to the putative class members were unconscionable. She seeks to represent a class defined as "all California residents who purchased consumer goods from AFF affiliated businesses and who AFF claims are or were bound to the terms of its Security Agreement" from Nov. 7, 2014, to the present." The proposed class is comprised of approximately 180,000 people -- those individuals who have loans with AFF up through Sept. 29, 2021. The Security Agreement with Andrade's name contains the Arbitration Provision. AFF submits evidence that the Security Agreements during the proposed class period contained arbitration provisions and that all were signed. The Security Agreements in question contain an "opt out" provision which allows consumers to reject the arbitration provision by providing written notice within 30 days to AFF, but it is not aware of any putative class member who opted out of the arbitration provision. In another action brought by Andrade's counsel on behalf of a different plaintiff, the Court granted AFF's motion to compel arbitration under the Security Agreement. It determined that AFF satisfied its burden to demonstrate that the merchant effectively assigned the Security Agreement with the arbitration provision to AFF and, thus, that AFF had standing to enforce the arbitration provision. Additionally, the Court found that the plaintiff failed to show that the arbitration provision was unconscionable. The matter comes before the Court upon consideration of Andrade's motion for class certification and AFF's motion to deny class certification. Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. For certification of the proposed class, Andrade bears the burden of showing that she meets each of the four requirements of Rule 23(a) and at least one subsection of Rule 23(b). Rule 23(a) provides that a district court may certify a class only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. If all four prerequisites of Rule 23(a) are satisfied, Andrade must also "satisfy through evidentiary proof at least one of the provisions of Rule 23(b)." Relevant is Rule 23(b)(3), which permits certification if a court finds that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Judge Kim concurs with the overwhelming majority of cases finding that a plaintiff who is not subject to an arbitration provision lacks the standing to challenge its conscionability. Accordingly, she finds that Andrade cannot satisfy the requirements of typicality and adequacy to represent a class of persons who are subject to the arbitration provision in the Security Agreement. Moreover, to the extent there are sufficient numbers of individuals who would challenge whether they consented to the arbitration provision in the Security Agreement, it would not be practical or superior to address such contentions through a class action. Therefore, she denies Andrade's motion and grants AFF's motion regarding class certification. A full-text copy of the Court's Aug. 16, 2022 Order is available at https://tinyurl.com/8u27fdz9 from Leagle.com. AMERICAN GAMING SUPPLY: Jones Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against American Gaming Supply, Inc. The case is styled as Damon Jones, on behalf of himself and all others similarly situated v. American Gaming Supply, Inc., Case No. 1:22-cv-07009-AT (S.D.N.Y., Aug. 17, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. American Gaming Supply Inc. -- https://www.americangamingsupply.com/ -- offers a variety of casino/gaming products and supplies including custom poker tables, poker chips, custom layouts, and more.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com AMPIO PHARMACEUTICALS: Kain Sues Over Decline in Stock Market Value ------------------------------------------------------------------- Christopher Kain, Individually and on Behalf of All Others Similarly Situated v. AMPIO PHARMACEUTICALS, INC., MICHAEL A. MARTINO, MICHAEL MACALUSO, and HOLLI CHEREVKA, Case No. 1:22-cv-02105 (D. Colo., Aug. 17, 2022), is brought against Ampio and certain of the Company's senior executives, and arise the Securities Exchange Act of 1934 and SEC Rule 10b-5, promulgated thereunder as a result of the Defendants' wrongful acts and omissions, and precipitous declines in the market value of the Company's shares. Through various filings with the SEC, Ampio claims to have developed Ampion, its lead product with "unique immunomodulatory action and anti-inflammatory effects" used to treat individuals with inflammatory conditions including, but not limited to, severe osteoarthritis of the knee ("OAK"). The Company further asserts that "Ampion is currently in development as an intra-articular injection treatment for severe OAK, an intravenous and inhaled treatment for hospitalized severe and/or critical COVID-19 patients, and an at-home inhalation treatment for patients with prolonged respiratory symptoms due to COVID-19, commonly referred to as "Long-COVID." Beginning in 2010 and lasting through approximately March 2022, Ampio conducted numerous clinical trials and analyses to determine Ampion's efficacy. Despite confidently advertising on numerous occasions that Ampion demonstrated a statistically significant decrease in pain associated in symptomatic moderate-severe OAK, the Company failed to bring Ampion to market. After months of delay and analyst speculation of the effectiveness of Ampion, on May 16, 2022, the Company announced that it had formed a special committee of the Ampio Board of Directors (the "Board") was conducting internal investigations focusing specifically on the statistical analysis of Ampio's AP-013 clinical trial and unauthorized provision of Ampion which had not yet been approved by the U.S. Food and Drug Administration ("FDA"). Then, in premarket hours on August 3, 2022, Ampio issued a press release containing a letter to stockholders revealing that the Individual Defendants "and senior staff were aware, at the time of the per-protocol interim analysis in March 2020, that the AP-013 trial did not demonstrate efficacy for Ampion on its co-primary endpoints of pain and function; and that these persons did not fully report the results of the AP-013 trial and the timing of unblinding of data from the AP-013 trial." On this news, the Company's share price dropped $0.06, or 35.38%, from the previous day's close, on greater than usual trading volume. Due to the Defendants' wrongful acts and omissions, and the precipitous declines in the market value of the Company's shares, the Plaintiff and other Class members have suffered significant losses and damages, says the complaint. The Plaintiff Christopher Kain is a holder of Ampio common stock. Ampio is a pre-revenue stage biopharmaceutical company focused on the research, development, and advancement of immunomodulatory therapies for the treatment of pain from osteoarthritis.[BN] The Plaintiff is represented by: Brian J. Robbins, Esq. Craig W. Smith, Esq. Gregory E. Del Gaizo, Esq. Brian J. Robbins, Esq. ROBBINS LLP 5040 Shoreham Place San Diego, CA 92122 Phone: (619) 525-3990 Facsimile: (619) 525-3991 Email: brobbins@robbinsllp.com csmith@robbinsllp.com gdelgaizo@robbinsllp.com ANTHEM COMPANIES: Fails to Pay Proper Wages, Burrus Alleges ----------------------------------------------------------- KIKISHIA BURRUS, individually and on behalf of all others similarly situated, Plaintiff v. THE ANTHEM COMPANIES, INC.; ELEVANCE HEALTH, INC.; and DOES 1 through 50, inclusive, Defendants, Case No. 220V4021 14 (Cal. Super., Santa Clara Cty., Aug. 18, 2022) is an action against the Defendant for failure to pay minimum wages, overtime compensation, provide meals and rest periods, and provide accurate wage statements. Plaintiff Burrus was employed by the Defendants as referral specialist. THE ANTHEM COMPANIES, INC. is a motion pictures and film company. [BN] The Plaintiff is represented by: Shaun Setareh, Esq. Jose Maria D. Patino, Jr., Esq. Maxim Gorbunov, Esq. SETAREH LAW GROUP 9665 Wilshire Boulevard, Suite 430 Beverly Hills, CA 90212 Telephone (310) 888-7771 Facsimile (310) 888-0109 Email: shaun@setarehlaw.com jose@setarehlaw.com maxim@setarehlaw.com ANYWHERE REAL: California Court Certifies TCPA Class Action ----------------------------------------------------------- Eric J. Troutman, Esq., of Troutman Firm, in an article for The National Law Review, reports that a couple months back, a Court in California certified a TCPA class action against brokerage giant Realogy related to calls made by Coldwell Banker agents, amongst others. The classes have enough members to put at least $225MM at stake in the case (and it could be a lot more.) Well the Court just denied Reaolgy's request to seek reconsideration of the certification ruling. So Realogy appears to be stuck in a certified class action, which is barreling toward trial. In fact, the Court just issued an order setting a pretrial conference for November 10, 2022, and trial is set for November 28, 2022! In the meantime, the Court also just denied motions challenging the Plaintiff's expert Anya Verkhovskaya, meaning that she'll get to testify at trial. TCPAWorld hasn't seen a true mega trial–i.e. a trial of a certified class action with nine (or ten) figure exposure in some time. Will be extremely interesting to see where this goes. "And while Realogy has added new counsel recently, I don't see any true Czar-level 'monster trial lawyer' types on their side just yet. (Maybe I'm missing it.)," Mr. Troutman says. [GN] APPLE INC: Bartling Appeals Dismissal of Processor Defect Case --------------------------------------------------------------- ANTHONY BARTLING, et al., are taking an appeal from a court order dismissing their lawsuit in In Re Apple Processor Litigation, Case No. 5:18-cv-00147-EJD, in the U.S. District Court for the Northern District of California. The Plaintiffs, on behalf of themselves and similarly situated consumers who purchased or leased from Apple and/or its authorized retailer sellers, brought this class action suit against the Defendant for common law fraud, unfair competition, unjust enrichment, and violations of the California Consumers Legal Remedies Act, the New Hampshire Consumer Protection Act, and the New York General Business Law. The Plaintiffs allege that they paid more for their Apple devices than they were worth because of the devices' processor design defect. On August 31, 2021, the Defendants filed a motion to dismiss Plaintiffs' second consolidated amended complaint, which the Court granted through an Order entered by District Judge Edward J. Davila on June 8, 2022. The appellate case is captioned as Anthony Bartling, et al. v. Apple Inc., Case No. 22-16164, in the United States Court of Appeals for the Ninth Circuit, filed on August 3, 2022. The briefing schedule in the Appellate Case states that: -- Appellants Jennifer Abrams, Anthony Bartling, Robert Giraldi and Jacqueline N. Olson Mediation Questionnaire was due on August 10, 2022; -- Transcript is due on September 30, 2022; -- Appellants Jennifer Abrams, Anthony Bartling, Robert Giraldi and Jacqueline N. Olson opening brief is due on November 8, 2022; -- Appellee Apple Inc. answering brief is due on December 8, 2022. -- Appellant's optional reply brief is due 21 days after service of the answering brief. [BN] Plaintiffs-Appellants ANTHONY BARTLING, et al., on behalf of themselves and all others similarly situated, are represented by: Christian Levis, Esq. LOWEY DANNENBERG, PC 44 S Broadway, Suite 1100 White Plains, NY 10601 Telephone: (914) 997-0500 - and - Matt Pearson, Esq. Aidan Chowning Poppler, Esq. Todd A. Seaver, Esq. BERMAN TABACCO 425 California Street, Suite 2300 San Francisco, CA 94104 Telephone: (415) 433-3200 Defendant-Appellee APPLE INC. is represented by: Melanie Blunschi, Esq. LATHAM & WATKINS, LLP 355 S. Grand Avenue, Suite 100 Los Angeles, CA 90071-1560 Telephone: (213) 485-1234 - and - Kathleen P. Lally, Esq. LYNCH CARPENTER, LLP 111 W Washington Street, Suite 1240 Chicago, IL 60602 Telephone: (312) 750-1265 - and - Mark S. Mester, Esq. LATHAM & WATKINS, LLP 330 N Wabash Avenue, Suite 2800 Chicago, IL 60611 Telephone: (312) 876-7700 - and - Matthew Rawlinson, Esq. LATHAM & WATKINS LLP 140 Scott Drive Menlo Park, CA 94025 Telephone: (650) 328-4600 - and - Michael H. Rubin, Esq. LATHAM & WATKINS, LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111-6538 Telephone: (415) 391-0600 ARDAGH METAL: Bid to Remand Diaz Suit to Solano Super. Ct. Denied ----------------------------------------------------------------- Judge Troy L. Nunley of the U.S. District Court for the Eastern District of California denies the Plaintiff's motion to remand his lawsuit captioned GRANT DIAZ, on behalf of himself and all others similarly situated, Plaintiff v. ARDAGH METAL BEVERAGE USA, INC., a Delaware corporation; and DOES 1-50, inclusive, Defendants, Case No. 2:22-cv-00100-TLN-KJN (E.D. Cal.), to the Superior Court of the State of California for the County of Solano. The Defendant, a beverage can manufacturer, employed the Plaintiff as a non-exempt employee from approximately June 2012 until his termination on Nov. 24, 2021. On Dec. 6, 2021, the Plaintiff filed the instant class action against the Defendant alleging violations of the California Labor Code and California Business and Professions Code in the Superior Court of the State of California for the County of Solano. The Plaintiff alleges that the Defendant: (1) failed to pay all minimum wages; (2) failed to pay all overtime wages; (3) did not provide the requisite meal periods; (4) did not provide the requisite rest periods; (5) provided inaccurate wage statements; (6) failed to timely pay all compensation due and owing upon discharge; and (7) engaged in unfair competition. On Jan. 18, 2022, the Defendant removed the action to the Court pursuant to the Class Action Fairness Act of 2005 ("CAFA"). It claims the action meets the CAFA requirements of class size, minimal diversity, and the amount in controversy. On Feb. 16, 2022, the Plaintiff filed the instant motion to remand in which he only contests the Defendant's asserted amount in controversy. On March 10, 2022, the Defendant filed an opposition. The Plaintiff replied on March 15, 2022. The Plaintiff argues the Defendant has not proven the amount in controversy exceeds $5,000,000 by a preponderance of the evidence. Specifically, the Plaintiff contends the Defendant's removal notice did not contain any evidence, and he also challenges the assumptions underlying the Defendant's amount in controversy calculations. In the opposition, the Defendant asserts it was not required to submit evidence with its removal notice, the Plaintiff failed to produce any evidence to contest the Defendant's calculations, and the Defendant's evidence and reasonable assumptions show the amount in controversy requirement is met. With the opposition, the Defendant also submits the declarations of Amy Haney ("Haney Declaration"), Payroll Analyst for the Defendant's parent company, and Jennifer Kyle ("Kyle Declaration"), Kronos Analyst for the Defendant's parent company. In the reply, the Plaintiff contests the declarations and argues he was not required to submit evidence with his motion and the assumptions the Defendant uses are speculative. As a preliminary matter, Judge Nunley notes, the Defendant was not required to submit evidence with its notice of removal. Thus, to the extent the Plaintiff argues the Defendant's notice of removal is deficient because it did not contain any evidence, the Court disagrees. The Defendant argues CAFA requires both sides to submit proof. The Defendant asserts that because the Plaintiff failed to provide any evidence with his motion to remand, the motion should be denied. In the reply, the Plaintiff asserts the Defendant misinterprets Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014), and that the Plaintiff was not required to submit evidence with his motion. The Court agrees with the Plaintiff. Accordingly, Judge Nunley holds that the Plaintiff may factually attack the Defendant's amount in controversy allegations without submitting evidence and the Plaintiff's motion to remand is not defeated solely because it lacks evidentiary support. In the reply, the Plaintiff challenges the Haney Declaration and the Kyle Declaration and asserts they contain generalities and unfounded approximations. The Court disagrees. In the instant case, Judge Nunley finds the Haney Declaration and the Kyle Declaration establish the following for the putative class: (1) the average hourly pay rate; (2) the number of employees; (3) the pay period frequency; (4) the total pay periods worked; (5) the total shifts worked; and (6) the total numbers of shifts worked at different shift lengths. Haney and Kyle each declare that their respective declarations are based upon their personal knowledge and/or review of records prepared and maintained in the ordinary course of business. Based on the information in the Haney Declaration and the Kyle Declaration -- and in the absence of any evidence from the Plaintiff to the contrary -- the Court concludes that the two declarations lay a sufficient evidentiary foundation to determine the amount in controversy. Unpaid Minimum Wages Claim The Plaintiff argues the assumption underlying the Defendant's amount in controversy estimate of $1,548,050 for this claim lack an evidentiary basis. In its opposition, the Defendant revises its estimate to $1,587,550 based on the following calculation: ($100 initial penalty x 128 pay periods) + ($250 subsequent penalty x 6,299 pay periods). The Defendant argues the Plaintiff's broad allegations and the nature of civil penalties under California Labor Code Section 1197.1 make its estimate reasonable. In his Complaint, the Plaintiff alleges the Defendant had a "uniform and unlawful practice of rounding to the nearest 15-minute interval" resulting in employees not being paid for all hours worked. As relevant here, a civil penalty exists for each employee paid less than the minimum wage for each pay period in which the employee was underpaid -- $100 for an initial violation, and $250 each time thereafter. The Plaintiff seeks to recover these penalties. The Defendant claims an amount in controversy of $1,587,550 based entirely on civil penalties. In making its calculation, the Defendant assumes every employee experienced at least one minimum wage violation every pay period. The Plaintiff challenges this assumption but does not produce any rebuttal evidence or identify an alternative assumption. Because of the Plaintiff's broad allegations of a uniform and unlawful time rounding practice, it is reasonable to assume at least one violation occurred per employee per pay period, Judge Nunley notes. Accordingly, the Defendant has satisfactorily shown the unpaid minimum wages claim establishes an amount of controversy of $1,587,550. Unpaid Overtime Claim The Plaintiff challenges the assumption underlying the Defendant's amount in controversy figure of $915,543 for this claim. Specifically, the Plaintiff argues the Defendant's assumption that every employee worked one unpaid hour of overtime every workweek is arbitrary and not grounded in real evidence. In its opposition, the Defendant revises its estimate to $901,073 based on the following calculation: $32.30 average hourly rate x 1.5 x 1 unpaid overtime hour per week x 18,598 workweeks. The Defendant argues its assumption is justified based on the Plaintiff's allegations of a "uniform and unlawful policy/practice" of rounding time. The Defendant points to other cases where courts have found estimates of one to two hours of unpaid overtime per employee per week to be reasonable. However, Judge Nunley finds that the plaintiffs in the cited cases did not allege unpaid overtime due to time rounding. In contrast, the Defendant's unpaid overtime assumption is premised on the Plaintiff alleging unlawful time rounding. Therefore, the Defendant's cited cases are of limited relevance to the instant motion. Judge Nunley states that the factual allegations of this case suggest the Defendant's assumption of one hour of unpaid overtime per employee per week is excessive. The Plaintiff's Complaint alleges the Defendant's policy rounded time to the nearest quarter hour. The longest amount of time that can be lost from rounding a single time entry to the nearest quarter hour is seven minutes. Therefore, although it is possible that the Defendant's rounding policy could have resulted in the loss of one overtime hour in a week, it is unlikely this would have been the case every week because the Defendant's policy also rounded time up. Thus, the Court finds the Defendant's assumption in this regard unreasonable. For the purposes of this claim, the Court finds a reasonable assumption is that there were thirty minutes of unpaid overtime per employee per week. This reduces the Defendant's amount in controversy figure by half, to $450,537. Accordingly, the Defendant has satisfactorily shown the unpaid overtime claim establishes an adjusted amount in controversy of $450,537. Meal Period Violations Claim The Plaintiff contests the Defendant's assumption that all putative class members missed 30% of meal periods, a violation rate resulting in a $732,527 amount in controversy. In its opposition, the Defendant revises its figure to $657,350 based on the following calculation: $32.30 average hourly rate x 30% meal period violation rate x 67,838 shifts qualifying for at least one meal period. The Defendant argues its 30% assumption is reasonable due to the Plaintiff's allegation that employees were denied meal periods because of the "Defendant's uniform meal period policies and/or practices." The Plaintiff's Complaint alleges employees were "often" denied meal periods due to the Defendant's uniform meal period policies and/or practices. The Court does not find the Plaintiff's description of the meal period violation rate as "often" to be a limit that makes the Defendant's 30% violation rate unreasonable. Additionally, the Plaintiff did not provide an alternative violation rate or submit any rebuttal evidence. Thus, Judge Nunley holds, the 30% meal period violation rate is reasonable and the Defendant has satisfactorily shown the meal period violations claim establishes an amount in controversy of $657,350. Rest Period Violations Claim The Plaintiff contests the Defendant's assumption of a 60% rest period violation rate, which results in a $1,465,053 amount in controversy. In its opposition, the Defendant revises its figure to $1,325,011 based on the following calculation: $32.30 average hourly rate x 60% rest period violation rate x 68,370 shifts qualifying for at least one rest period. The Defendant argues its 60% assumption is reasonable because of the Plaintiff's allegations that it failed to provide any rest periods. The Plaintiff's Complaint alleges "Defendant failed to provide any 10-minute rest periods for every 4 hours or major fraction thereof." Moreover, the Defendant's calculations only take one rest period per shift into account when most shifts were eligible for three. Thus, the Court finds the Defendant's 60% rest period violation rate to be reasonable. Accordingly, the Defendant has satisfactorily shown the rest period violations claim establishes an amount of controversy of $1,325,011. Wage Statement Violations Claim The Plaintiff alleges the Defendant violated California Labor Code Section 226(a) with its wage statements, such as by failing to correctly state the name and address of the employer. In the notice of removal, the Defendant calculates the amount in controversy to be $2,010,650 for this claim. The Plaintiff contests the Defendant's figure and argues it has not established the number of employees that received wage statements. In the opposition, the Defendant revises its figure to $2,054,650 based on the following calculation: (($50 initial penalty x 128 pay periods) + ($100 subsequent penalty x 6,299 pay periods) and capped at $4,000 per employee) + ($250 penalty x 6,427 pay periods). The Defendant asserts the alleged employer name and address error would make every wage statement a violation. Because of the alleged employer name and address error on the wage statements, the Court finds the 100% wage statement violation rate to be reasonable. Accordingly, the Defendant has satisfactorily shown the wage statement violations claim establishes an amount of controversy of $2,054,650. In sum, the Defendant's calculations reasonably and appropriately yield an amount in controversy of $6,075,098 for the Plaintiff's claims of unpaid minimum wages, unpaid overtime, meal period violations, rest period violations, and wage statement violations. This calculated amount in controversy does not account for waiting time penalties or attorneys' fees -- amounts that, if included, would bring the amount in controversy in greater excess of $5 million. Therefore, the Court finds the Defendant has shown by a preponderance of the evidence that the amount in controversy in the case exceeds $5 million as required by CAFA. For these reasons, the Court denies the Plaintiff's Motion to Remand. A full-text copy of the Court's Order dated Aug. 15, 2022, is available at https://tinyurl.com/akbc7bpu from Leagle.com. ARDIAN CORP: Court Denies Bid to Certify Class in Avila Labor Suit ------------------------------------------------------------------ In the case, GREGORIO VELASCO AVILA, on behalf of himself, FLSA Collective Plaintiffs and the Class, Plaintiff v. ARDIAN CORP. d/b/a TAVERNA KYCLADES, MACCG LLC d/b/a TAVERNA KYCLADES, TK BELL LLC d/b/a TAVERNA KYCLADES, ARDIAN SKENDERI, and CATERINA SKENDERI, Defendants, Case No. 18-CV-4795-FB-TAM (E.D.N.Y.), Judge Frederic Block of the U.S. District Court for the Eastern District of New York denies the Plaintiff's motion for class certification. Mr. Avila worked at the Taverna Kyclades restaurant in Astoria, Queens ("TK-Astoria"). He alleges that his former employer failed to pay him in accordance with the federal Fair Labor Standards Act and the New York Labor Law. Mr. Avila was hired as a busboy in 2009. For the next seven years, he typically worked six days a week. On Tuesdays, he worked a single, 8.5-hour shift from 5 p.m. to 12:30 a.m. On Mondays, Wednesdays, Thursdays, Saturdays and Sundays, he worked a double shift of 14.5 hours -- 11 a.m. to 1:30 a.m. -- with a one-hour break between shifts. During this period, he was not required to clock in or out; he was paid in cash at the tipped minimum wage. TK-Astoria began using a time clock in June 2016. From then until the end of his employment in May 2017, Avila worked five or six days a week. He worked shifts of seven to nine hours, but would occasionally work more than ten hours a day. During this period, he earned between $7.50 and $11.00 an hour, which was equal to or greater than the tipped minimum wage. While conceding that he received at least the tipped minimum wage throughout his employment, Avila claims that TK-Astoria violated the New York Labor Law in five ways. First, he claims that he was not paid for all hours worked because TK-Astoria systematically rounded down his hours. Second, he claims that he never received a spread-of-hours premium when he worked more than ten hours in a day. Third, he claims that he never received wage statements (i.e., paystubs). Fourth, he claims that never received wage notices. Fifth, he claims that he was entitled to be paid at the regular minimum wage -- as opposed to the tipped minimum wage -- because TK-Astoria did not give him proper wage notices and because he spent more than 20% of his time on non-tipped activities. With respect to the state-law claims, Avila seeks to represent a class consisting of "all former and current non-exempt workers (including, but not limited to, cooks, line-cooks, food preparers, dishwashers, porters, counter attendants, cashiers, servers, bussers, hosts, baristas, and delivery workers) employed at any of the Defendants' three Taverna Kyclades locations at any time between Aug. 23, 2012, and the certification of this class," as well as a subclass consisting of "all tipped employees employed at any of the Defendants' three Taverna Kyclades locations at any time between Aug. 23, 2012, and the certification of this class." Accordingly, he moves to certify that proposed class and subclass pursuant to Federal Rule of Civil Procedure 23. In determining whether class certification is appropriate, a district court must first ascertain whether the claims meet the preconditions of Federal Rule of Civil Procedure 23(a) of numerosity, commonality, typicality, and adequacy. It may then consider granting class certification where it finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Judge Block concludes that Avila has failed to satisfy the numerosity requirement of Rule 23(a)(1) with respect to his wage statement and wage notice claims, and that he has failed to satisfy the predominance requirement of Rule 23(b)(3) with respect to his remaining claims. As to numerosity, he finds that the evidence of numerosity is insufficient on Avila's wage statement and wage notice claims. For those claims, the records provided by the Defendants reflect that many employees did receive the required documents. Avila has no personal knowledge of facts to dispute those records. As to predominance, although he has identified issues common to both Avila and the proposed class, Judge Block holds that those issues pale in comparison to the individual issues that would arise were the case to proceed as a class action. As a result, the class-action mechanism is not a superior means of adjudicating the case. Accordingly, Judge Block denies Avila's motion for class certification is denied. This decision has no bearing on any of Avila's individual claims, or on ability to pursue his claims under the FLSA as a collective action. A full-text copy of the Court's Aug. 16, 2022 Memorandum & Order is available at https://tinyurl.com/ycktauj2 from Leagle.com. C.K. LEE, ANNE SEELIG, Lee Litigation Group, PLLC, in New York City, for the Plaintiff. VINCENT AVERY -- VAvery@fordharrison.com -- FordHarrison, LLP, in New York City, for the Defendants. AT&T PENSION: Grosso Appeals ERISA Suit Dismissal to 2nd Cir. ------------------------------------------------------------- VINCENT C. GROSSO, et al., are taking an appeal from a court ruling dismissing their lawsuit entitled Vincent C. Grosso, on behalf of themselves and all others similarly situated, Plaintiffs, v. AT&T Pension Benefit Plan, et al., Defendants, Case No. 1:18-cv-06448-LGS, in the U.S. District Court for the Southern District of New York. The Plaintiffs, on behalf of themselves and all others similarly situated, brought this class action suit against the Defendants for alleged breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA) by failing to inform them about the requirement of filing a written application to trigger their entitlement to receive benefits between ages 55 and 65. As a result, the Plan Administrator denied their retroactive pension benefits on the ground that they had not filed a written application. On January 14, 2022, the Defendants filed a motion for summary judgment, which the Court granted through an Order entered by District Judge Lorna G. Schofield on July 7, 2022. The Court ruled that the Plaintiffs' ERISA claim is time barred because this case was filed more than six years after the latest date on which the alleged breach could have been cured; therefore, the case is deemed closed. The appellate case is captioned as Grosso v. AT&T Pension Benefit Plan, Case No. 22-1701, in the United States Court of Appeals for the Second Circuit, filed on August 4, 2022. [BN] Plaintiffs-Appellants VINCENT C. GROSSO, et al., on behalf of themselves and all others similarly situated, are represented by: Robert Lawrence Liebross, Esq. LAW OFFICE OF ROBERT L. LIEBROSS 259-27 148th Drive Rosedale, NY 11422 Telephone: (212) 566-2151 - and - Edgar Pauk, Esq. LAW OFFICES OF EDGAR PAUK 1066 Union Street Brooklyn, NY 11225 Telephone: (718) 399-2023 Defendants-Appellees AT&T PENSION BENEFIT PLAN, et al., are represented by: Patrick William Shea, Esq. PAUL HASTINGS LLP 200 Park Avenue New York, NY 10166 Telephone: (212) 318-6405 - and - Kenneth W. Gage, Esq. PAUL HASTINGS LLP 200 Park Avenue New York, NY 10166 Telephone: (212) 318-6046 - and - Alex J. Maturi, Esq. PAUL HASTINGS LLP 71 South Wacker Drive, Suite 4500 Chicago, IL 60606 Telephone: (312) 499-6076 B & P COMPANY: Bunting Files ADA Suit in E.D. New York ------------------------------------------------------ A class action lawsuit has been filed against B & P Company, Inc. The case is styled as Rasheta Bunting, individually and as the representative of a class of similarly situated persons v. B & P Company, Inc., Case No. 1:22-cv-04818-ENV-TAM (E.D.N.Y., Aug. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. B&P -- https://bandppropertygroup.com/ -- is an advertising and marketing company.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com BALL METAL: Discovery Allowed Before Final Okay of Westfall Deal ---------------------------------------------------------------- In the case, Robert Westfall, et al., Plaintiffs v. Ball Metal Beverage Container Corporation, Defendant, Case No. 2:16-cv-02632-KJM-CKD (E.D. Cal.), Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California grants Objectors Andre Bernstein and Richard Martin's request for discovery before the Court finally approves the parties' settlement agreement. The parties settled the wage-and-hour class action lawsuit on Aug. 7, 2020. The Court preliminarily approved the settlement on Sept. 16, 2021. Two days before the final approval hearing, Bernstein and Martin filed objections with the Court. They provided evidence of their timely submitted objections, which the settlement administrator did not report to the Court. The objectors also express concern that the settlement would waive valuable claims without appropriate consideration. They thus request discovery before the Court finally approves the parties' settlement agreement. After careful consideration, Judge Mueller grants the objectors' request. There have been numerous problems since the Court preliminarily approved the settlement agreement, the most concerning of which involve the settlement administrator. As noted, the administrator reported that he "received no requests for opt-outs/objections" as of May 17, 2022. But the objectors have presented evidence that they submitted timely objections and that the administrator received those objections in early April 2022. The administrator now submits he received the objections on May 24, 2022 -- the day before objectors filed objections with the Court. The administrator implicitly suggests the delay was the courier's fault. The administrator's errors are not limited to his representations to the Court, as there have been other issues since preliminary approval. First, the administrator mailed notice packets that provided only 22 days to opt out or object to the settlement. Second, when the administrator mailed a revised notice packet, he once again failed to give class members 45 ays to object or opt out. Third, Objector Martin submits the administrator sent his notice packet to the wrong address for Martin despite having his correct address on file. Fourth, the administrator did not submit his declaration to this court until four days before the final approval hearing; the s counsel therefore relied solely on information in the administrator's "dashboard" in moving for final approval. On a separate note, Judge Mueller holds that the failure to notify the Court of Objector Martin's seemingly related case against defendant Ball Metal Beverage Container Corporation also raises concerns. Despite Martin's conspicuousness as a potential objector, the parties did not notify the court of Martin's lawsuit. The Court now will relate that separate case, in the interests of judicial efficiency, issuing a separate order to that effect. Given the issues described, Judge Mueller finds the Court does not have sufficient facts to intelligently approve the settlement agreement; she thus grants the objectors' request for discovery. The objectors are entitled to discovery related to (1) why objections and opt-outs were not reported to the Court, (2) why the Martin lawsuit was not reported to the court as a related case, (3) whether notices were mailed properly, (4) whether there are other unreported objections and/or opt-outs, and (5) whether the settlement waives valuable claims unfairly or without adequate consideration. Discovery will be completed by Oct. 7, 2022. Objectors will file their response to the Plaintiffs' renewed motion for final approval by Oct. 21, 2022. The Plaintiffs will file their reply by Oct. 28, 2022. The final approval hearing is continued to Nov. 4, 2022. The Order resolves ECF No. 121. A full-text copy of the Court's Aug. 16, 2022 Order is available at https://tinyurl.com/5abrv43f from Leagle.com. BANK OF AMERICA: Park Sues Over Liability for Unauthorized Deals ---------------------------------------------------------------- Ji-Hye Park, on behalf of herself and all similarly situated individuals v. BANK OF AMERICA, N.A., Case No. 1:22-cv-00382-JAO-WRP (D. Haw., Aug. 18, 2022), is brought against Defendant who held its cardholders liable for unauthorized transactions even when it is apparent that the charge was unauthorized is violation of the Truth in Lending Act ("TILA"). Because TILA protects cardholders in the event of card-not-present fraud, card issuers face a dilemma and must sustain the loss itself. Bank of America, however, appears to refuse to shoulder this burden as it would cost it millions of dollars each year. The cardholder is then left with no recourse other than to file suit, pay the unauthorized charge, or face interest, fees, and other negative consequences, like negative credit reporting. The Plaintiff alerted Bank of America to two unauthorized transactions involving a company purportedly named "Axus LLC." Bank of America denied the Plaintiff's unauthorized use claims even though the merchant's so-called "evidence" of the transactions in no way established that Plaintiff authorized them. To the contrary, the merchant's documents showed that the transactions were performed using an IP address in Taipei, Taiwan. Even worse, Bank of America ignored that "Axus LLC"--a purported Delaware limited liability company--is not and has never been registered to do business in Delaware. Put simply, in the absence of any scrutiny, Bank of America blindly relied on the merchant's "proof" and correspondingly denied the Plaintiff's valid unauthorized use claims, says the complaint. The Plaintiff is a natural person. Bank of America is a national association doing business in Hawaii through its registered office in Honolulu.[BN] The Plaintiff is represented by: Andrew J. Guzzo, Esq. KELLY GUZZO, PLC 7 Waterfront Plaza 500 Ala Moana Blvd., Suite 7400 Honolulu, HI 96813 Phone: 808-664-8641 Email: aguzzo@kellyguzzo.com BAYER US: Averts Class Action Over Benzene in Spray Health Products ------------------------------------------------------------------- Bernie Pazanowski, writing for Bloomberg Law, reports that Bayer US LLC will avoid for now a possible class action over spray health products that were recalled because benzene was found in some samples, after a federal district court in New Jersey said the plaintiffs failed to show they have standing to sue. Juan Huertas used Lotrimin and Eva Mistretta used Tinactin to treat athlete's foot prior to Bayer issuing a recall for the two products. They sued Bayer, stating that benzene is a carcinogen and alleging that as a result of it being in the products they used they "suffered cellular and genetic injury that creates and/or increases the risk" that they'll develop cancer. They also claimed economic harm in the loss of the purchase price of the products, which they said were "worthless." Huertas and Mistretta didn't sufficiently allege an injury in fact, the unpublished opinion by Judge Susan D. Wigenton of the US District Court for the District of New Jersey said Aug. 19. Addressing the alleged economic harm, the court said that Huertas and Mistretta only put forth a conclusory assertion that the products were worthless do to possible benzene contamination. They didn't present a "particularized account of the actual harm caused," it said. Nor did Huertas and Mistretta discuss the applicable Food and Drug Administration guidelines or note the acceptable amount of benzene in a given product, the court said. Neither did they allege that they had to stop using the product or that it didn't work as intended, it said. Huertas and Mistretta also gave only a conclusory statement that they suffered cellular or genetic harm without demonstrating that concrete injuries actually exist, the court said. They only rely on the risk of future harm, it said. The court gave Huertas and Mistretta 30 days to file an amended complaint to try to address these deficiencies. Bursor & Fisher PA represented the plaintiffs. McCarter & English LLP represented Bayer. The case is Huertas v. Bayer US LLC, 2022 BL 290694, D.N.J., No. 2:21-cv-20021, unpublished 8/19/22. [GN] BED BATH: Rosen Law Firm Investigates Potential Securities Claims ----------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, announces an investigation of potential securities claims on behalf of shareholders of Bed Bath & Beyond Inc. (NASDAQ: BBBY) resulting from allegations that Ryan Cohen, his investment firm RC Ventures LLC, and/or the Company may have issued materially misleading business information to the investing public. SO WHAT: If you purchased or sold Bed Bath & Beyond securities between August 15, 2022 and August 19, 2022, both dates inclusive, you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. The Rosen Law Firm is preparing a class action seeking recovery of investor losses. WHAT TO DO NEXT: To join the prospective class action, go to https://rosenlegal.com/submit-form/?case_id=8240 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. WHAT IS THIS ABOUT: On March 6, 2022, through his investment firm RC Ventures LLC, Ryan Cohen, the billionaire co-founder of Chewy Inc. who also serves as chairman of GameStop Corp., sent a letter to Bed Bath & Beyond's board which announced that he owned a 9.8% stake in Bed Bath & Beyond and in which he criticized the Company's management. On this news Bed Bath & Beyond stock to closed 34% higher on March 7, 2022 compared to its close on March 4, 2022, the previous trading day, on extremely heavy trading volume. On March 25, 2022, Bed Bath & Beyond added three new directors appointed by Ryan Cohen's investment firm, RC Ventures LLC. On August 15, 2022, Ryan Cohen, through his investment firm RC Ventures LLC, announced in an SEC filing purchases of over one million January 2023 call options with exercise prices at $60, $75, and $80—significantly higher than Bed Bath & Beyond shares were trading. On this news, Bed Bath & Beyond stock closed 29% higher on August 16, 2022 compared to its close on August 15, 2022, on extremely heavy trading volume. Then, on August 18, 2022, Ryan Cohen, through his investment firm RC Ventures LLC, announced that he would sell his entire stake in Bed Bath & Beyond. Also on August 18, 2022, Bloomberg published an article entitled "Bed Bath & Beyond Taps Kirkland & Ellis for Help Addressing Debt Load" which revealed the Company hired a law firm for help with its debt. On this news, Bed Bath & Beyond shares fell $4.53 per share, or 19%, to close at $18.55 per share on August 18, 2022, on extremely heavy trading volume. Bed Bath & Beyond shares continued to drop on August 19, 2022, falling $7.52 per share, or 40%, from its August 18, 2022 close, to close at $11.03 per share, on extremely heavy trading volume. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources, or any meaningful peer recognition. Many of these firms do not actually litigate securities class actions. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. Attorney Advertising. Prior results do not guarantee a similar outcome. Contacts Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com cases@rosenlegal.com pkim@rosenlegal.com www.rosenlegal.com [GN] BEVERLY HILLS: Fails to Pay Proper Wages, Catalano Suit Alleges --------------------------------------------------------------- CRISTINA CATALANO, individually and on behalf of all others similarly situated, Plaintiff v. BEVERLY HILLS HOTEL MANAGEMENT LLC; MR. C MANAGER, LLC; BHR TRS BEVERLY HILLS LLC; BRAEMAR HOTELS & RESORTS, INC.; REMINGTON LODGING & HOSPITALITY, LLC; ASHFORD TRS BEVERLY HILLS LLC; and DOES 1-100, inclusive, Case No. 22STCV26949 (Cal. Super., Los Angeles Cty., Aug. 18, 2022) is an action against the Defendant for failure to pay minimum wages, overtime compensation, provide meals and rest periods, and provide accurate wage statements. Plaintiff Catalano was employed by the Defendants as server. BEVERLY HILLS HOTEL MANAGEMENT LLC owns and operates hotels. [BN] The Plaintiff is represented by: Michael R. Crosner, Esq. Zachary M. Crosner, Esq. Blake R. Jones, Esq. Sepideh Ardestani, Esq. CROSNER LEGAL, PC 9440 Santa Monica Blvd. Suite 301 Beverly Hills, CA 90210 Telephone: (310) 496-5818 Facsimile: (310) 510-6429 Email: mike@crosnerlegal.com zach@crosnerlegal.com blake@crosnerlegal.com sepideh@crosnerlegal.com BISCO INDUSTRIES: Faces Kirchwehm Class Suit Over Improper Wages ---------------------------------------------------------------- The case, KURT KIRCHWEHM and ROSELIA CONTRERAS, individually and on behalf of all others similarly situated, Plaintiffs v. BISCO INDUSTRIES, INC., Defendant, Case No. 1:22-cv-04398 (N.D. Ill., August 18, 2022) arises from the Defendant's alleged illegal employment policies and practices that violated the Fair Labor Standards Act and the Illinois Minimum Wage Law. Plaintiff Kirchwehm has worked for the Defendant as a Chicago Warehouse Assistant Manager from in or about October 2020 through on or about May 16, 2022. Plaintiff Contreras has also worked for the Defendant as Warehouse Associate from in or about November 2020 through on or about April 29, 2022. Throughout their employment with the Defendant, the Plaintiffs consistently worked more than 40 hours per week. However, no matter how many hours they actually worked, the timekeeping system only registered that they worked 40 hours and always required them to affirm that they had only worked 40 hours. As a result, the Defendant failed to properly and timely compensate them at the proper overtime compensation rate for all hours they have worked in excess of 40 per workweek. In addition, the Defendant improperly classified Plaintiff Kirchwehm and all other individuals employed as Assistant Managers as exempt from the maximum hours provisions of the FLSA and IMWL, says the suit. Bisco Industries, Inc. distributes electronic components and fasteners used in production for multiple industries. [BN] The Plaintiffs are represented by: Alexis D. Martin, Esq. Katherine E. Stryker, Esq. CAFFARELLI & ASSOCIATES LTD. 224 S. Michigan Ave., Suite 300 Chicago, IL 60604 Tel: (312) 763-6880 E-mail: amartin@caffarelli.com kstryker@caffarelli.com BLOOMBERG LP: Graham Sues Over Unlawful Disclosure of Identities ---------------------------------------------------------------- Justin Graham, on behalf of himself and all others similarly situated v. BLOOMBERG L.P., Case No. 1:22-cv-07015 (S.D.N.Y., Aug. 17, 2022), is brought against the Defendant as the owner of Bloomberg.com, for violating the federal Video Privacy Protection Act ("VPPA") by disclosing its digital subscribers' identities and Video Media to Facebook without the proper consent. The VPPA prohibits "video tape service providers," such as Bloomberg.com, from knowingly disclosing consumers' personally identifiable information, including "information which identifies a person as having requested or obtained specific video materials or services from a video tape provider," without express consent in a stand-alone consent form. The Defendant collects and shares the personal information of visitors to its website and mobile application ("App") with third parties. Defendant does this through cookies, software development kits ("SDK"), and pixels. In other words, digital subscribers to Bloomberg.com have their personal information disclosed to Defendant's third-party business partners. The Facebook pixel is a code Defendant installed on the Bloomberg.com website allowing it to collect users' data. More specifically, it tracks when digital subscribers enter the Bloomberg.com website or App and view Video Media. The Bloomberg.com website tracks and discloses to Facebook the digital subscribers' viewed Video Media, and most notably, the digital subscribers' FID. This occurs even when the digital subscriber has not shared (nor consented to share) such information. Thus, without telling its digital subscribers, Defendant profits handsomely from its unauthorized disclosure of its digital subscribers' Personal Viewing Information to Facebook. It does so at the expense of its digital subscribers' privacy and their statutory rights under the VPPA. Because Bloomberg.com digital subscribers are not informed about this dissemination of their Personal Viewing Information--indeed, it is automatic and invisible--they cannot exercise reasonable judgment to defend themselves against the highly personal ways Bloomberg.com has used and continues to use data it has about them to make money for itself. The Defendant chose to disregard Plaintiff's and hundreds of thousands of other Bloomberg.com digital subscribers' statutorily protected privacy rights by releasing their sensitive data to Facebook. Accordingly, Plaintiff brings this class action for legal and equitable remedies to redress and put a stop to Defendant's practices of intentionally disclosing its digital subscribers' Personal Viewing Information to Facebook in knowing violation of VPPA, says the complaint. The Plaintiff began his paid digital subscription to Bloomberg.com in February of 2021 and maintained his subscription until May 2021. Bloomberg is a privately held financial, software, data, and media company headquartered in Midtown Manhattan, New York City.[BN] The Plaintiff is represented by: Joshua D. Arisohn Philip L. Fraietta, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Phone: (646) 837-7150 Fax: (212) 989-9163 Email: arisohn@bursor.com pfraietta@bursor.com - and - Christopher R. Reilly, Esq. BURSOR & FISHER, P.A. 701 Brickell Avenue, Suite 1420 Miami, FL 33131 Phone: (305) 330-5512 Fax: (305) 679-9006 Email: creilly@bursor.com - and - Gary M. Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 227 W. Monroe Street, Suite 2100 Chicago, IL 60606 Phone: 866.252.0878 Email: gklinger@milberg.com - and - Nick Suciu III, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 6905 Telegraph Rd., Suite 115 Bloomfield Hills, MI 48301 Phone: 313-303-3472 Email: nsuciu@milberg.com BLUE SKY: Faces Class Action Over Misleading Financial Statements ----------------------------------------------------------------- AAP Newswire reports that Blue Sky Alternative Investments' overstated, distorted financial reports duped investors into dumping money into the fund manager before it spectacularly collapsed, a class action claims. The Brisbane-based investment firm was worth over $1 billion in market capitalisation at its peak in 2017 but this plummeted after short-seller Glaucus reported on "wildly exaggerated" assets in the company in March 2018. By May 2019, the firm's market capitalisation was just $14 million when receivers were brought in. On Aug. 19, investors filed a Federal Court class action against Blue Sky Alternative Investments seeking compensation and damages for what they say were hyped-up financial statements that portrayed a false, overly rosy view of what was happening at the company before it imploded. Melissa Morgan, partner at class action law firm Banton Group, said investors suffered loss by relying on information in Blue Sky's financial reports for the 2016, 2017 and 2018 financial years. This information materially overstated Blue Sky's actual position, she told AAP. "In particular, the assets of the various funds managed by Blue Sky were overstated, resulting in it improperly recognising performance fees that were subject to material risk and that under its accounting policies and the Accounting Standards ought not to have been recognised." As well as Blue Sky, the class action also targets former directors John Kain, Timothy Wilson, Nicholas Dignam, Michael Gordon, Philip Hennessy, Alexander McNab, Kim Morison, Robert Shand, Elaine Stead and Mark Sowerby. They are all accused of knowing that the financial reports were inaccurate and untrue, but doing nothing to correct any misleading or false statements before publishing the reports on the Australian Stock Exchange. Ernst & Young and auditors Michael Reid and Paula McLuskie have also been sued for allegedly breaching accounting standards and their duty of care by falsely claiming the reports described Blue Sky's "true and fair position". "The information in the financial reports was distorted so as to present Blue Sky as being in a more favourable financial position than it actually was," investors say in documents filed with the court. "This appearance caused the price at which Blue Sky's shares traded on the ASX to be higher than the price otherwise would have been." Investors eligible to take part in the class action purchased shares in the firm between August 19, 2016 and May 20, 2019. Banton Group declined to say exactly how much investors claimed they had lost due to Blue Sky's alleged misconduct, saying this information was privileged. In January 2021, Ms Stead successfully sued for defamation over a series of Australian Financial Review articles regarding her time at Blue Sky. The Federal Court awarded her $280,000 in damages after AFR journalist Joe Aston referred to her as a "feminist cretin", a "stupid person" and a "prodigious destroyer of capital" in a number of Rear Window columns published in 2018 and 2019. In his defamation judgment, Justice Michael Lee said he had not made findings on why Blue Sky collapsed or on the legal or moral appropriateness of the directors' actions. Blue Sky Alternatives Access Fund, which broke away prior to the collapse and was purchased by Wilson Asset Management, is still trading and is not involved in the class action proceedings. [GN] BOYLAN BOTTLING: Martinez Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Boylan Bottling Co. The case is styled as Pedro Martinez, individually and as the representative of a class of similarly situated persons v. Boylan Bottling Co., Case No. 1:22-cv-04822 (E.D.N.Y., Aug. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Boylan Bottling Company -- https://boylanbottling.com/ -- is an American gourmet soft drink manufacturer located in New York City.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com BP EXPLORATION: Court Dismisses Cotton's Claims With Prejudice -------------------------------------------------------------- In the case, CILLO COTTON, JR. v. BP EXPLORATION & PRODUCTION, INC., ET AL., SECTION: H(4), Civil Action No. 17-3132 (E.D. La.), Judge Jane Triche Milazzo of the U.S. District Court for the Eastern District of Louisiana grants the Motion in Limine to Exclude the General Causation Opinions of Plaintiff's Expert, Dr. Jerald Cook and a Motion for Summary Judgment Due to Plaintiff's Inability to Prove Medical Causation. The motions are both filed by Defendants BP Exploration & Production, Inc.; BP America Production Co.; BP p.l.c.; Transocean Holdings, LLC; Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.; and Halliburton Energy Services, Inc. The case is one among the "B3 bundle" of cases arising out of the Deepwater Horizon oil spill. 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 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 the Court. The case was eventually reassigned to Section H. Plaintiff Cotton alleges continuous exposure to oil and dispersants starting in May 2010 during his work as a boat captain and recovery technician engaged in cleanup efforts along the Gulf coast. He claims to suffer from a host of medical conditions because of the exposure, including headache, back pain, acne, boils, dryness, inflammation, itching, lesions, sinus pain, congestion, dizziness, lethargy, tremors, nausea, and more. He asserts claims under the general maritime law of negligence, negligence per se, and gross negligence with respect to the spill and its cleanup. Now before the Court are the Defendants' Motion in Limine to Exclude the General Causation Opinions Testimony of Plaintiff's Expert and their Motion for Summary Judgment Due to Plaintiff's Inability to Prove Medical Causation. In the Motion in Limine, they argue that the Plaintiff's expert on medical causation, Dr. Cook, fails to satisfy the Fifth Circuit requirements for an admissible general causation opinion in toxic tort cases and should therefore be excluded as unreliable. In the Motion for Summary Judgment, the Defendants argue that assuming their Motion in Limine is granted, the Plaintiff lacks expert testimony on general causation and therefore fails to present a genuine issue of material fact as to whether his injuries were caused by exposure to oil and dispersants. The Plaintiff opposes. B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response." "The plaintiff's burden with respect to causation in a toxic tort case involves proof of both general causation and specific causation." "General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury." Dr. Cook is listed as the Plaintiff's only expert witness on causation. On this topic, Dr. Cook produced a report dated March 14, 2022 and entitled "Health Effects Among Deepwater Horizon Oil Spill Response and Cleanup Workers: A Cause and Effect Analysis." This report is not unique to the case; another judge of the Court has described it as "an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs." Five other sections of the Eastern District of Louisiana have excluded Dr. Cook based on this same report before the Court. After carefully and thoroughly reviewing those decisions, and for the same reasons articulated by Judges Ashe, Vance, Barbier, Morgan, and Zainey, Judge Milazzo grants the Defendants' Motion in Limine. Accordingly, she also grants their Motion for Summary Judgment. The Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's Aug. 16, 2022 Order & Reasons is available at https://tinyurl.com/mryj3byr from Leagle.com. BP EXPLORATION: Court Refuse to Extend Deadlines in Gentry Suit --------------------------------------------------------------- Judge Lance M. Africk of the U.S. District Court for the Eastern District of Louisiana denies Gentry's motion for extension of all scheduling deadlines in the case, BRANDON WATSON GENTRY v. BP EXPLORATION & PRODUCTION, INC., ET AL, SECTION I, Civil Action No. 17-3995 (E.D. La.). Before the Court is a motion by Plaintiff Gentry for extension of deadlines seeking to delay the Court's ruling on any dispositive motions and continue all scheduling deadlines until his counsel concludes B3 docket-wide discovery on the alleged failure by defendants, BP Exploration & Production, Inc.; BP America Production Co.; and BP p.l.c. (collectively, "BP"), to conduct dermal monitoring and biomonitoring of oil-spill workers. Also before the Court is BP's opposition to the motion. The lawsuit is a "B3" case arising out of the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. B3 cases involve "claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant)." In the course of the In re Oil Spill by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *9 (E.D. La. Apr. 1, 2021) (Barbier, J.), proceedings, Judge Barbier approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement, which included a Back-End Litigation Option ("BELO") permitting certain class members to sue the defendants for later-manifested physical conditions. The B3 plaintiffs, by contrast, either opted out of the class action settlement agreement or were excluded from its class definition. To prevail on their claims, the "B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response." Mr. Gentry was employed in the response to the Deepwater Horizon ("DWH") oil spill. He alleges that exposure to crude oil and chemical dispersants caused him to develop a multitude of adverse medical conditions, including "dizziness, nausea, headaches, sinus problems, eye irritation, rashes, skin lesions and various pulmonary issues." B3 plaintiffs like Gentry have sought to support their claims that exposure to oil and dispersants caused health problems by introducing medical causation analysis by Dr. Jerald Cook. BP has responded with motions in limine arguing that Cook's testimony is scientifically unreliable and therefore inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). It has not filed a motion to exclude Dr. Cook's testimony. Mr. Gentry argues that the Court should continue all scheduling deadlines to "allow factual discovery aimed at individual plaintiffs to be put on hold while discovery proceeds on what has become the defining legal issue -- general causation and the acceptance of Plaintiff's causation expert," Dr. Cook. He also requests that submission deadlines for motions for summary judgment and motions in limine be continued to "allow time for the discovery disputes to be resolved, and discovery relating to BP and biomonitoring to be completed" in Torres-Lugo v. BP Exploration & Production, Inc., No. 20-210 (E.D. La. June 3, 2022), a case pending before another section of the Court. At issue in Torres-Lugo is a motion for sanctions filed by another B3 plaintiff against BP, alleging that David Dutton, BP's 30(b)(6) witness, "failed to properly respond to questions and seek information necessary to be a corporate representative witness" as to the issue of BP's dermal monitoring and biomonitoring of cleanup workers. However, Judge Africk finds that the issue of BP's alleged failure to collect biomonitoring data does not address the question of whether Cook's report is sufficient to establish general causation. Whether the Torres-Lugo court decides that sanctions are warranted and whether these potential sanctions would result in more discovery pertaining to BP's collection of biomonitoring data is irrelevant. Sanctions and more discovery on BP's internal decision-making regarding collecting data have no effect on the data actually available to Cook to prove general causation and, as another section of the Court has noted, are therefore not outcome determinative of "the defining legal issue" of general causation. Moreover, Cook's general causation analysis was not limited to data from BP or derived from the Deepwater Horizon spill; Cook had other data available to him to support his analysis. Additionally, as noted by another section of the Court, Cook could also have buttressed his analysis with epidemiological studies of the health effects on responders from prior oil spills, not just from data on the Deepwater Horizon spill. The dispute at issue in the Torres-Lugo case has no effect on the data available to Cook, and therefore has no effect on the Court's analysis regarding general causation. Considering the foregoing, Judge Africk finds that continuing all scheduling deadlines and submission deadlines is not warranted and that good cause for delay has not been demonstrated. Accordingly, he denies the Plaintiff's motion to continue all scheduling deadlines in the case. A full-text copy of the Court's Aug. 16, 2022 Order & Reasons is available at https://tinyurl.com/3zup8a9k from Leagle.com. BP EXPLORATION: Court Tosses All of Bryant's Claims With Prejudice ------------------------------------------------------------------ In the case, JAMES W. BRYANT v. BP EXPLORATION & PRODUCTION, INC. ET AL., SECTION: H(5), Civil Action No. 19-11664 (E.D. La.), Judge Jane Triche Milazzo of the U.S. District Court for the Eastern District of Louisiana grants the Motion in Limine to Exclude the General Causation Opinions of Plaintiff's Expert, Dr. Jerald Cook and a Motion for Summary Judgment Due to Plaintiff's Inability to Prove Medical Causation. Both motions are filed by Defendants BP Exploration & Production, Inc.; BP America Production Co.; BP p.l.c.; Transocean Holdings, LLC; Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.; and Halliburton Energy Services, Inc. The case is one among the "B3 bundle" of cases arising out of the Deepwater Horizon oil spill. 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 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 the Court. The case was reassigned to Section H. Mr. Bryant alleges continuous exposure to oil and dispersants starting in May 2010 during his time as a beach cleanup worker picking up tar balls in Fort Pickens and Santa Rosa Island, Florida. He claims to suffer from a host of medical conditions because of the exposure, including "blindness, optic atrophy, coughing, respiratory complications, esophagus deterioration, fear of cancer, and vomiting." He asserts claims under negligence, negligence per se, gross negligence, and more. Now before the Court are the Defendants' Motion in Limine to Exclude the General Causation Opinions Testimony of Plaintiff's Expert and their Motion for Summary Judgment Due to Plaintiff's Inability to Prove Medical Causation. In the Motion in Limine, they argue that the Plaintiff's expert on medical causation, Dr. Cook, fails to satisfy the Fifth Circuit requirements for an admissible general causation opinion in toxic tort cases and should therefore be excluded as unreliable. In the Motion for Summary Judgment, they argue that assuming their Motion in Limine is granted, the Plaintiff lacks expert testimony on general causation and therefore fails to present a genuine issue of material fact as to whether his injuries were caused by exposure to oil and dispersants. The Plaintiff opposes. B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response. The plaintiff's burden with respect to causation in a toxic tort case involves proof of both general causation and specific causation. General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury." Dr. Cook is listed as the Plaintiff's only expert witness on causation. On this topic, Dr. Cook produced a report dated March 14, 2022 and entitled "Health Effects Among Deepwater Horizon Oil Spill Response and Cleanup Workers: A Cause and Effect Analysis." This report is not unique to this case; another judge of the Court has described it as "an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs." Five other sections of the Eastern District of Louisiana have excluded Dr. Cook based on this same report before the Court. After carefully and thoroughly reviewing those decisions, and for the same reasons articulated by Judges Ashe, Vance, Barbier, Morgan, and Zainey, Judge Milazzo grants the Defendants' Motion in Limine. Accordingly, she also grants their Motion for Summary Judgment. All of the Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's Aug. 16, 2022 Order & Reasons is available at https://tinyurl.com/mppv3mk3 from Leagle.com. BP EXPLORATION: Court Tosses All of Learn's Claims With Prejudice ----------------------------------------------------------------- In the case, MICHAEL HARRISON LEARN v. BP EXPLORATION & PRODUCTION, INC. ET AL., SECTION: H(1), Civil Action No. 17-3322, c/w No. 17-332 (E.D. La.), Judge Jane Triche Milazzo of the U.S. District Court for the Eastern District of Louisiana grants the Motion in Limine to Exclude the General Causation Opinions of Plaintiff's Expert, Dr. Jerald Cook and a Motion for Summary Judgment Due to Plaintiff's Inability to Prove Medical Causation. The motions are both filed by Defendants BP Exploration & Production, Inc.; BP America Production Co.; BP p.l.c.; Transocean Holdings, LLC; Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.; and Halliburton Energy Services, Inc. The case is one among the "B3 bundle" of cases arising out of the Deepwater Horizon oil spill. 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 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 the Court. The case was reassigned to Section H. Mr. Learn alleges continuous exposure to oil and dispersants starting in April 2010 during his time as a foreman performing cleanup work on the beaches near Biloxi, Gulfport, and Harrison County, Mississippi. He claims to suffer from a host of medical conditions because of the exposure, including bilateral pneumonia, burning and tearing of eyes, chronic bronchitis, chronic tonsillitis, confusion, congestion, COPD, cough, dizziness, headaches, sinusitis, memory loss, shortness of breath, treamors, and more. He asserts claims under the general maritime law of negligence, negligence per se, and gross negligence with respect to the spill and its cleanup. Now before the Court are the Defendants' Motion in Limine to Exclude the General Causation Opinions Testimony of Plaintiff's Expert and their Motion for Summary Judgment Due to Plaintiff's Inability to Prove Medical Causation. In the Motion in Limine, they argue that the Plaintiff's expert on medical causation, Dr. Cook, fails to satisfy the Fifth Circuit requirements for an admissible general causation opinion in toxic tort cases and should therefore be excluded as unreliable. In the Motion for Summary Judgment, they argue that assuming their Motion in Limine is granted, the Plaintiff lacks expert testimony on general causation and therefore fails to present a genuine issue of material fact as to whether his injuries were caused by exposure to oil and dispersants. The Plaintiff opposes. B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response." "The plaintiff's burden with respect to causation in a toxic tort case involves proof of both general causation and specific causation." "General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury." Dr. Cook appears to be Plaintiff's only expert on causation. On this topic, Dr. Cook produced a report dated March 14, 2022 and entitled "Health Effects Among Deepwater Horizon Oil Spill Response and Cleanup Workers: A Cause and Effect Analysis." This report is not unique to this case; another judge of the Court has described it as "an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs." Five other sections of the Eastern District of Louisiana have excluded Dr. Cook based on this same report before the Court. After carefully and thoroughly reviewing those decisions, and for the same reasons articulated by Judges Ashe, Vance, Barbier, Morgan, and Zainey, Judge Milazzo grants the Defendants' Motion in Limine. Accordingly, she also grants their Motion for Summary Judgment. All of the Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's Aug. 16, 2022 Order & Reasons is available at https://tinyurl.com/3t8bphbm from Leagle.com. BRUCE'S PRIME RIBS: Valencia Sues Over Unpaid Compensation ---------------------------------------------------------- Hector Valencia, on behalf of himself and all aggrieved California-based non-exempt employees v. Bruce's Prime Ribs & Spirits, Inc.; and Does 1 to 100, inclusive, Case No. 22STCV26952 (Cal. Super. Ct., July 18, 2022), is brought against the Defendants for violations of the Labor Code and/or the Industrial Welfare Commission by failing to pay minimum and overtime wages. The Defendants failed to pay the Plaintiff or aggrieved employees all wages at the minimum wage rate; pay the Plaintiff or aggrieved employees all overtime wages at the overtime rate; provide the Plaintiff or aggrieved employees with either meal/rest periods that comply with California law or provide premium payments for the meal/rest periods that did not comply with California law; provide Plaintiff or aggrieved employees accurate wage statements; or timely pay the Plaintiff or aggrieved employees all wages due upon separation of employment, says the complaint. The Plaintiff was employed by the Defendants as hourly non-exempt employee. BRUCE'S PRIME RIBS & SPIRITS, INC. is authorized to do business within the State of California.[BN] The Plaintiff is represented by: Michael J. Jaurigue, Esq. S. Sean Shahabi, Esq. Barbara DuVan-Clarke, Esq. JAURIGUE LAW GROUP 300 W. Glenoaks Boulevard, Suite 300 Glendale, CA 91202 Phone: (818) 630-7280 Facsimile: (888)879-1697 Email: service@jlglawyers.com michael@jlglawyers.com sean@jlglawyers.com barbara@jlglawyers.com BUMBLE INC: Hearing Will Be Held on Naming of Lead Roles in UA Suit ------------------------------------------------------------------- In the case, UA LOCAL 12 PENSION FUND, individually and on behalf of all others similarly situated, Plaintiff v. BUMBLE INC., et al., Defendants, Case No. 22cv624 (DLC) (S.D.N.Y.), Judge Denise Cote of the U.S. District Court for the Southern District of New York rules that oral argument will be held to consider the motions for appointment of lead plaintiff and lead counsel and for consolidation. On April 15, 2022, the Plaintiff filed a class action lawsuit on behalf of all those who purchased Class A common stock of Bumble directly in the secondary public stock offering that took place on Sept. 10, 2021. The complaint alleges violations of Sections 11, 12(a)(2), and 15 of the Securities Exchange Act of 1933. Section 77z-1 of the Private Securities Litigation Reform Act, 15 U.S.C. Section 77z-1(a)(3)(A)(i), requires that: Not later than 20 days after the date on which the complaint is filed, the plaintiff or plaintiffs will cause to be published, in a widely circulated national business-oriented publication or wire service, a notice advising members of the purported plaintiff class -- (I) of the pendency of the action, the claims asserted therein, and the purported class period; and (II) that, not later than 60 days after the date on which the notice is published, any member of the purported class may move the court to serve as lead plaintiff of the purported class. The PSLRA also requires that not later than 90 days after the date on which notice is published, the Court will consider any motion made by a purported class member in response to the notice, and will appoint as lead plaintiff the member or members of the purported plaintiff class that the Court determines to be most capable of adequately representing the interests of class members. Judge Cote holds that the Plaintiff's counsel appears to have published the required notice on Jan. 24, 2022. Members of the purported class were therefore required by March 25, 2022 to move to serve as lead plaintiffs. On March 25, 2022, the Teamsters Local 710 Pension Fund and the Louisiana Sheriffs' Pension and Relief Fund both moved to serve as lead plaintiffs. The motions were fully submitted on April 15, 2022. The case was reassigned to Judge Cote on Aug. 16, 2022. Accordingly, oral argument will be held to consider the motions for appointment of lead plaintiff and lead counsel and for consolidation. The hearing will be held in Courtroom 18B, 500 Pearl Street, New York, NY 10007. The named Plaintiffs will promptly serve a copy of the Order on each of the Defendants. A full-text copy of the Court's Aug. 16, 2022 Order is available at https://tinyurl.com/9h3urh4j from Leagle.com. CALIFORNIA SEASHELL: Toro Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against California Seashell Company, Inc. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. California Seashell Company, Inc., Case No. 1:22-cv-07039 (S.D.N.Y., Aug. 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. California Seashell Company, Inc. -- https://www.caseashells.com/ -- offers low prices for seashells, starfish, sage & crystals, beach & coastal decor, wedding favors, based in Huntington Beach, California.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com CALIFORNIA: Cheng Appeals TCPA Suit Dismissal to 9th Circuit ------------------------------------------------------------ CLYDE CHENG is taking an appeal from a court order dismissing his lawsuit entitled Clyde Cheng, on behalf of himself and all others similarly situated, Plaintiff, v. Congresswoman Jackie Speier, Defendant, Case No. 3:22-cv-00083-SI, in the U.S. District Court for the Northern District of California. The Plaintiff, on behalf of himself and all others similarly situated, brought this class action suit against the Defendant for violations of the Telephone Consumer Protection Act, the Unlawful Prong of the California Unfair Competition Law, and the Unfair Prong of the California Unfair Competition Law by placing telephone calls on the Plaintiff's cellular telephone number using a prerecorded voice without first obtaining permission. On April 14, 2022, the Defendant filed a motion to dismiss Plaintiff's complaint, which the Court granted through an Order entered by District Judge Susan Illston on July 4, 2022. The Court granted the Defendant's motion to dismiss Cheng's TCPA claim against Congresswoman Speier in her official capacity on the basis of sovereign immunity. The Court concluded that the federal government is the real party-in-interest and therefore the individual capacity claim is barred by sovereign immunity and dismissed without leave to amend. The Court declined to exercise jurisdiction over the remaining causes of action brought under California state law because it already ruled to dismiss the federal cause of action. The appellate case is captioned as Clyde Cheng v. Jackie Speier, Case No. 22-16170, in the United States Court of Appeals for the Ninth Circuit, filed on August 4, 2022. The briefing schedule in the Appellate Case states that: -- Appellant Clyde Cheng Mediation Questionnaire was due on August 11, 2022; -- Transcript is due on October 3, 2022; -- Appellant Clyde Cheng opening brief is due on November 10, 2022; -- Appellee Jackie Speier answering brief is due on December 12, 2022. -- Appellant's optional reply brief is due 21 days after service of the answering brief. [BN] Plaintiff-Appellant CLYDE CHENG, on behalf of himself and all others similarly situated, is represented by: Mark Javitch, Esq. JAVITCH LAW OFFICE 3 E. 3rd Avenue, Suite 200 San Mateo, CA 94401 Telephone: (650) 781-8000 Defendant-Appellee JACKIE SPEIER, Congresswoman, in her official and individual capacities, is represented by: Michael Keough, Esq. DOJ-USAO 450 Golden Gate Avenue San Francisco, CA 94102 Telephone: (415) 436-6878 CANUS CORP: Bids for Judgment on Pleadings in Giles Suit Granted ---------------------------------------------------------------- In the case, MARTINEZ ANDRE GILES, Plaintiff v. CANUS CORPORATION, et al., Defendants, Case Nos. 22-cv-03097-MMC, 22-cv-03098-MMC (N.D. Cal.), Judge Maxine M. Chesney of the U.S. District Court for the Northern District of California issues an order: (1) denying Giles' Motions to Remand Case to State Court; and (2) granting Canus' Motions for Judgment on the Pleadings. Mr. Giles, who was employed by Canus as a "non-exempt employee" from January 2015 to May 2021, alleges Canus "regularly failed" to pay him his "correct wages," including "minimum and overtime wages," failed to provide him with legally required "off-duty meal and rest breaks," and failed to issue him "complete and accurate wage statements." He further alleges that, in April 2021, he complained to Canus about its employment practices, and that, as a result, Canus "retaliaed" against him by terminating his employment. Based on these allegations, Giles, on Feb. 23, 2022, filed a complaint in the Superior Court of California, in and for the County of Contra Costa ("Class Action Complaint"), asserting, on behalf of himself and a putative class, the following eight Causes of Action: (1) "Unlawful Business Practices," (2) "Failure to Pay Minimum Wages," (3) "Failure to Pay Overtime Compensation," (4) "Failure to Provide Required Meal Periods," (5) "Failure to Provide Required Rest Periods," (6) "Failure to Provide Accurate Itemized Statements," (7) "Failure to Pay Wages When Due," and (8) "Wrongful Termination in Violation of Public Policy." The following day, Giles filed another complaint in the Superior Court of California, in and for the County of Contra Costa, asserting a claim under the Private Attorneys General Act of 2004, which claim is predicated on the Defendants' alleged violations of "California Labor Code Sections 201, 202, 203, 204 et seq., 210, 221, 226(a), 226.7, 351, 510, 512, 558(a)(1)(2), 1194, 1197.1, 1198, 1198.5, 2802, California Code of Regulations, Title 8, Section 11040, Subdivision 5(A)-(B), and the applicable Wage Order(s)." On May 12, 2022, Giles filed, in the Class Action, his First Amended Class Action Complaint, reasserting the referenced eight claims alleged in his initial Class Action Complaint. On May 26, 2022, Canus removed both actions to federal court, on the ground that the asserted Causes of Action are completely preempted by federal labor law, specifically, Section 301 of the Labor Management Relations Act ("LMRA"), 28 U.S.C. Section 185. Before the Court are four motions, each filed June 23, 2022: (1) Giles' Motion to Remand Case to State Court in Case No. 22-cv-03097-MMC ("Class Action"); (2) Canus' Motion for Judgment on the Pleadings in Case No. 22-cv-03098-MMC ("PAGA Action"); (3) Giles' Motion to Remand Case to State Court in the Class Action; and (4) Canus' Motion for Judgment on the Pleadings in the PAGA Action. The motions have been fully briefed. By his motions to remand, Giles seeks an order remanding both of the titled actions to state court, on the ground that the Court lacks subject matter jurisdiction over his claims. By its motions for judgment on the pleadings, Canus seeks an order granting entry of judgment in his favor with respect to Giles' minimum wage, overtime, and meal period claims in their entirety, as well as on his wage statement, waiting time, wrongful termination, and UCL claims to the extent those claims are derivative of the minimum wage, overtime, and meal period claims. In his motions to remand, Giles argues Canus "has failed to establish federal jurisdiction under Section 301 of the LMRA." In opposition to remand, Canus offers undisputed evidence that Giles, during the course of his employment with Canus, was subject to the terms of two CBAs between Canus and the International Brotherhood of Electrical Workers Local Union 1245. Based thereon, it contends (1) Giles' overtime and meal period claims are preempted by Section 301 at the first step of the referenced analysis, (2) his minimum wage claims are preempted by Section 301 at the second step of the analysis, and (3) his remaining claims either are derivative of the foregoing claims or warrant the Court's exercise of supplemental jurisdiction. Judge Chesney is not persuaded by Giles' argument that the actions are subject to remand for the asserted reason that neither his FCAC nor his PAGA Complaint "mentions the CBAs and that his claims, as pleaded, are based on alleged violations of state law. Although, under the "well-pleaded complaint rule," federal question jurisdiction generally exists only when a federal question is presented on the face of a complaint, where, as in the present, the asserted ground for removal is complete preemption by the LMRA, a court may "properly loo beyond the face of the complaint to determine whether the claim is in fact a section 301 claim for breach of a collective bargaining agreement 'artfully pleaded' to avoid federal jurisdiction. It is undisputed that the subject CBAs meet the requirements of section 514, and, consequently, Giles' right to overtime exists solely as a result thereof. Accordingly, his overtime claims are preempted by Section 301 of the LMRA. In addition, Canus has submitted undisputed evidence that Giles was employed in a construction occupation, and it is further undisputed that the subject CBAs meet the quoted requirements under subsection (e) of section 512. Consequently, Giles' right to meal periods exists solely as a result of the CBAs. Accordingly, his meal period claims are preempted by Section 301 of the LMRA as well. With respect to Giles' minimum wage claims, Judge Chesney agrees with Canus contention that resolution of said claims "substantially depends on an analysis of the CBAs," specifically, an interpretation of the terms "actual time worked" and "show-up pay," as used in the CBAs. Accordingly, Giles' minimum wage claims are preempted by Section 301 of the LMRA. As to Giles' remaining causes of action, Canus argues such claims either are derivative of the claims over which the Court has original jurisdiction or warrant the Court's exercise of supplemental jurisdiction. Specifically, it contends (1) Giles' wage statement, waiting time, wrongful termination, and UCL claims are, in part, derivative of the claims that are preempted, and (2) the Court should exercise supplemental jurisdiction over Giles' rest period claims in their entirety, as well as the wage statement, waiting time, wrongful termination, and UCL claims to the extent they are not derivative of the preempted claims. As discusses, Giles' minimum wage, overtime, and meal period claims are preempted by the LMRA; consequently, to the extent his wage statement, waiting time, wrongful termination, and UCL claims are derivative thereof, those claims likewise are preempted by the LMRA. As to his rest period claims, as well as his wage statement, waiting time, wrongful termination, and UCL claims to the extent they are not derivative of the preempted claims, said claims and the above-referenced preempted claims "derive from a common nucleus of operative fact," and, consequently, Judge Chesney finds it appropriate to exercise supplemental jurisdiction over them. In sum, to the extent Giles seeks an order remanding the titled cases to state court, the motions to remand are denied for the reasons she stated. Giles' minimum wage, overtime, and meal period claims are dismissed in their entirety. His wage statement, waiting time, wrongful termination, and UCL claims are dismissed to the extent said claims are derivative of the minimum wage, overtime, and meal period claims. Mr. Giles is afforded leave to amend for the purpose of pleading any or all of the dismissed claims as LMRA claims. Any such amended pleading will be filed no later than Sept. 13, 2022. In its motions for judgment on the pleadings, Canus contends it is entitled to entry of judgment in its favor with respect to Giles's minimum wage, overtime, and meal periods claims in their entirety, on the ground that said claims are statutorily barred and completely preempted by the LMRA, as well as with respect to Giles's wage statement, waiting time, wrongful termination, and UCL claims to the extent they are derivative of the preempted claims. As set forth, Judge Chesney agrees that Giles' minimum wage, overtime, and meal periods claims, as well as his wage statement, waiting time, wrongful termination, and UCL claims to the extent they are derivative thereof, are completely preempted by the LMRA. Accordingly, Canus' motions are granted. Rather than entering judgment, however, she dismisses said claims with leave to amend. A full-text copy of the Court's Aug. 16, 2022 Order is available at https://tinyurl.com/yfzdd5jd from Leagle.com. CBDMD INC: $300,000 Deal in Data Breach Class Suit Wins Final OK ---------------------------------------------------------------- A settlement has been reached between online retail giant cbdMD Inc. and customers who claim the company's negligence resulted in two data breaches of its website in spring 2020. On Aug. 15, a North Carolina federal judge approved the $300,000 settlement in the class action lawsuit brought by customers who purchased cannabidiol products from cbdMD Inc. and who claimed the breach caused their personal and financial information to fall into the possession of malicious actors. The settlement, which was approved by U.S. District Judge Robert J. Conrad Jr., allows class members to receive as much as $210 for out-of-pocket expenses such as card replacement fees, overdraft fees, interest and up to $80 in costs for obtaining credit monitoring and identity theft protection. It is estimated about 44,000 consumers had their private information exposed in the data breach. Customers who purchased cannabidiol products from the online retail giant cbdMD Inc. claim the company's negligence resulted in two data breaches of its website this spring, causing customers' personal and financial information to fall into the possession of malicious actors. Sensitive information -- including customers' credit card numbers, email addresses, billing addresses and bank account numbers -- was obtained by hackers and is likely for sale on the dark web, putting customers at a "substantially increased risk of financial fraud," the class action lawsuit claims. Plaintiffs Michael Warshawsky of Florida, and Michael Steinhauser of California, are among thousands of customers affected by the data breaches that occurred between late March and mid-May of this year, according to the class action lawsuit. In late September, cbdMD, the parent company of CBD Industries LLC, notified the U.S. Securities and Exchange Commission (SEC) and attorneys general in California, Maine, New Hampshire and Vermont, among other states, as well as the affected customers, of the data breaches. That notice triggered plaintiffs to file suit on behalf of themselves and the entire affected Class. The Charlotte, North Carolina-based company was founded in 2015; it manufactures and distributes hemp-based products including cannabidiol oils used for pain relief and general health for both humans and animals. All members of the proposed Class used cbdMD's e-commerce platform to make purchases, according to the class action lawsuit. In Warshawsky's case, a $67.48 debit card purchase from the CBD site on April 27 led to a fraudulent transfer of $1,369 from his checking account a month later. To perpetrate the fraud, an unauthorized third-party used the same debit card number Warshawsky had used on the cbdMD website. The fraudster used a mobile phone app to transfer the funds from Warshawsky's checking account to an account set up by the hacker in Warshawsky's name, the lawsuit alleges. Similarly, in Steinhauser's case, his $65.68 debit card purchase from the site April 25 led to a fraudulent charge of $452.54 at a Best Buy store in another city about two and a half months later. In both cases, the men spent time and energy tracking and resolving the fraudulent charges with their respective banks -- time they otherwise would have spent working or enjoying leisure activities, according to the class action lawsuit. They both continue to be greatly concerned about credit card theft and financial fraud in the future, given that their personal and financial information may still be available to cyber criminals, the class action lawsuit alleges. CBD oil bottles - data breach Adding insult to injury, the plaintiffs note, not long after the data breaches occurred, the company's revenue rose during the summer of 2020 as a result of "a significant shift in online sales as an overall percentage of net sales," according to the lawsuit. The publicly traded company claims to have estimated annual revenue of more than $25 million. Plaintiffs accuse cbdMD of negligence and failure to protect their data, lambasting the company for allowing hackers to repeatedly penetrate its networks and steal customers' financial and personal information. Especially in light of the facts that these sorts of web-scraping hacks have been "surging" since 2016, the company knew or should have known about the importance of maintaining secure systems, and it knew or should have known its security practices did not adequately safeguard plaintiffs' information, the class action lawsuit alleges. Indeed, these types of data breaches are so common that the Federal Bureau of Investigation (FBI) issued a warning to companies about it in October 2019, according to the class action lawsuit, and advised companies of specific steps they should take to properly protect e-commerce systems from cyber criminals. But cbdMD "apparently did not take this advice," the class action lawsuit alleges, claiming the company did not use "reasonable security procedures and practices appropriate to the nature of the sensitive information they were collecting." In addition to failing to prevent the data breaches in the first place, the company also failed to detect the breaches for almost six months, according to the class action lawsuit. What's more, when cbdMD did finally discover the breaches, it allegedly informed shareholders days before it informed the affected consumers, "depriving their customers of precious time to put a stop to financial fraud as soon as possible," the plaintiffs contend. The company's conduct amounts to negligence and violates federal and state statutes, the lawsuit claims. The plaintiffs are demanding a jury trial as well as a declaratory judgment that the company's existing security measures do not comply with its "explicit or implicit contractual obligations to provide reasonable security procedures and practices appropriate to the nature of the information to protect customers' personal information." In addition, plaintiffs are demanding an order that the company comply with those obligations by "implementing and maintaining reasonable security measures," including purchasing credit monitoring services for the plaintiffs for 10 years. Have you purchased any products from cbdMD? Are you worried your data may have been compromised? Let us know in the comments. The plaintiffs are represented by Jean Martin, John A. Yanchunis and Ryan J. McGee of Morgan & Morgan Complex Litigation Group, and M. Anderson Berry and Leslie Guillon of Clayeo C. Arnold, A Professional Law Corp. The cbdMD Data Breach Class Action Lawsuit is Michael Warshawsky, et al. v. cbdMD Inc., et al., Case No. 3:20-cv-00562, in the U.S. District Court for the Western District of North Carolina, Charlotte Division. [GN] CEACO INC: Toro Files ADA Suit in S.D. New York ----------------------------------------------- A class action lawsuit has been filed against Ceaco, Inc. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. Ceaco, Inc., Case No. 1:22-cv-07006 (S.D.N.Y., Aug. 17, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ceaco -- https://ceaco.com/ -- offers the manufacture of Gamewright card games and Ceaco jigsaw puzzles to retail stores.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com CHRISTMAS IN PRESCOTT: Toro Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Christmas In Prescott, Inc. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. Christmas In Prescott, Inc., Case No 1:22-cv-06998 (S.D.N.Y., Aug. 17, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Christmas In Prescott, Inc. -- https://www.christmasinprescott.com/ -- creates over 4500 glass ornaments, resin, feathered Christmas ornaments.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com CO-DIAGNOSTICS INC: Stadium Capital Hits Share Price Drop --------------------------------------------------------- STADIUM CAPITAL LLC, on behalf of itself and all others similarly situated, Plaintiff v. CO-DIAGNOSTICS, INC., DWIGHT H. EGAN, and BRIAN L. BROWN, Defendants, Case No. 1:22-cv-06978 (S.D.N.Y., Aug. 16, 2022) is a securities action under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission, brought by Plaintiff on behalf of a class of all persons and entities who purchased the publicly traded securities of the Defendant (Co-Dx) during the period May 12, 2022 through the close of the market on August 11, 2022, inclusive. On April 6, 2020, Co-Dx announced that it had received an Emergency Use Authorization for its Logix Smart(TM) COVID-19 detection test from the Food and Drug Administration, allowing it to commence sales of the test to laboratories certified by the Center for Medicare and Medicaid Services under the Clinical Laboratories Improvements Act to accept human samples for diagnostics testing throughout the United States. During the Class Period, the Defendants repeatedly touted its Logix Smart(TM) COVID-19 Test, reassuring investors about the demand for the product. At the same time, Defendants failed to disclose that: (1) demand for its Logix Smart(TM) COVID-19 Test had plummeted throughout the quarter ended June 30, 2022, and (2) as a result, Defendants' positive statements about the demand for its Logix Smart(TM) COVID-19 Test lacked a reasonable basis, says the suit. On August 11, 2022, Co-Dx shocked investors when, after the market closed, the Company issued a press release and filed a report with the SEC on Form 8-K that disclosed its financial results for the quarter ended June 30, 2022, in which the Company disclosed revenue of $5.0 million for the quarter ended June 30, 2022, down from $27.4 million during the prior year period, a decline of almost 82%. The Company primarily attributed the decrease to lower demand of the Logix Smart(TM) COVID-19 Test, the suit asserts. On this news, the price of Co-Dx's common stock allegedly declined $1.98, or 30.65%, from a closing price of $6.46 per share on August 11, 2022, to close at $4.48 per share on August 12, 2022. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common stock, Plaintiff and other Class members have suffered significant losses and damages, the suit further alleges. Co-Diagnostics, Inc. operates as a molecular diagnostics company.[BN] The Plaintiff is represented by: Frederic S. Fox, Esq. Jason A. Uris, Esq. KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY 10022 Telephone: (212) 687-1980 Facsimile: (212) 687-7714 E-mail: ffox@kaplanfox.com juris@kaplanfox.com COINBASE GLOBAL: Faces Class Suit in Georgia Over Security Lapses ----------------------------------------------------------------- Sandali Handagama, writing for CoinDesk, reports that Coinbase (COIN) failed to properly secure customers' accounts, leaving them vulnerable to theft and unauthorized transfers, a putative class action lawsuit filed against the crypto exchange alleges. The complaint, filed in the U.S. District Court for the Northern District of Georgia, also accuses the company of causing financial harm to users by locking them out of their accounts permanently or for long periods of time, as well as violating federal law by listing securities on its trading platform. Coinbase, which last year became the first cryptocurrency exchange to go public in the U.S., is facing a string of lawsuits from unhappy investors. In addition to another aspiring class action lawsuit filed in New Jersey alleging the company allowed U.S. persons to trade unregistered securities, earlier this month, a Coinbase shareholder accused the company of misleading investors about last year's public listing. The platform is also trying to settle two separate lawsuits filed by investors through arbitration. Coinbase (COIN) failed to properly secure customers' accounts, leaving them vulnerable to theft and unauthorized transfers, a putative class action lawsuit filed against the crypto exchange alleges. The complaint, filed in the U.S. District Court for the Northern District of Georgia, also accuses the company of causing financial harm to users by locking them out of their accounts permanently or for long periods of time, as well as violating federal law by listing securities on its trading platform. Coinbase, which last year became the first cryptocurrency exchange to go public in the U.S., is facing a string of lawsuits from unhappy investors. In addition to another aspiring class action lawsuit filed in New Jersey alleging the company allowed U.S. persons to trade unregistered securities, earlier this month, a Coinbase shareholder accused the company of misleading investors about last year's public listing. The platform is also trying to settle two separate lawsuits filed by investors through arbitration. The lawsuits began piling up this year after the SEC said it was investigating Coinbase over the alleged sale of crypto securities in July. "Coinbase's user growth has outpaced its ability to provide the account services and protections it promises to consumers," Kattula's complaint said. The suit alleges Coinbase's failure to "establish and maintain adequate cybersecurity measures" caused investors to lose their "wallet and account access, the assets and investments in those accounts" as well as "sensitive personally identifiable information stored in their Coinbase accounts, and, among other things, their investment opportunities." Kattula's suit is seeking damages exceeding $5 million (excluding his legal costs and fees), a binding judgement, and injunctive relief, which is an order to prohibit involved parties from carrying out certain activities. Coinbase did not respond to a request for comment by press time. Nikhilesh De contributed reporting. [GN] COLLEGE CHEFS: Mayes Sues to Recover Unpaid Overtime Wages ---------------------------------------------------------- Tanisha Mayes, individually, and on behalf of all others similarly situated v. COLLEGE CHEFS, LLC, Case No. 2:22-cv-02168-CSB-EIL (C.D. Ill., Aug. 17, 2022), is brought to recover unpaid overtime wages, liquidated damages, and reasonable attorneys' fees and costs as a result of Defendant's willful violations of the Fair Labor Standards Act and attendant regulations, and the Wisconsin's Wage Payment and Collection Laws. The Plaintiff and other hourly-paid employees are victims of the Defendant's common policy of failing to incorporate their non-base compensation (such as weekly guarantee wages) into their regular rates of pay, for purposes of calculating their hourly overtime rates. As a result, there were many weeks throughout the statutory period in which the Plaintiff and other hourly-paid employees received an hourly rate of overtime hours of less than "one and one-half times their regular rate," in violation of the FLSA, says the complaint. The Plaintiff worked at the Defendant's client, Gamma Phi Beta house, located at the University of Wisconsin located in Madison, Wisconsin. The Defendant provides meal service to college student residences, typically sororities and fraternities.[BN] The Plaintiff is a represented by: Jason T. Brown, Esq. Nicholas Conlon, Esq. Edmund C. Celiesius, Esq. BROWN, LLC 205 North Michigan Avenue, Suite 810 Chicago, Ill 60601 Email: jtb@jtblawgroup.com nicholasconlon@jtblawgroup.com ed.celiesius@jtblawgroup.com COMMONWEALTH EDISON: Judge Dismisses $150MM Bribery Scheme Suit --------------------------------------------------------------- John Clark, writing for WTVO, reports that a federal appellate court judge has dismissed a $150 million class action lawsuit against Illinois energy company ComEd and its parent company, Exelon, over a bribery scandal involving former House Speaker Michael Madigan. According to Bloomberg, the Racketeer Influenced and Corrupt Organizations (RICO) Act class action suit was filed by nine Illinois consumers in hopes of reimbursing Illinois residents for electricity rates that ComEd raised following its participation in the bribery scheme. ComEd admitted that it arranged jobs, subcontracted work, and monetary payments related to those jobs to Madigan in order "to influence and reward the official's efforts to assist ComEd with respect to legislation concerning ComEd and its business," prosecutors said. The judge ruled that paying a state's required utility rate was not a recognizable injury for a damage claim. ComEd paid a $200 million fine in 2020. The suit was dismissed in 2021, with a judge citing that the suit did not establish a firm link between bribery and the passage of the bills that allowed it to raise its rates. The plaintiffs appealed the decision, which was dismissed on Aug. 22. [GN] COMMUNITY SURGICAL: Viruet Files Suit Over Data Breach ------------------------------------------------------ DIANA VIRUET, on behalf of herself and all others similarly situated, Plaintiff v. COMMUNITY SURGICAL SUPPLY, INC., Defendant, Case No. 3:22-cv-05063 (D.N.J., Aug. 15, 2022) arises from the Defendant's failure to properly secure, safeguard, and adequately destroy the sensitive personal identifiable information that was entrusted to it by Plaintiff and Class Members during the course of its business operations in violation of the New Jersey Consumer Fraud Act. On July 29, 2022, the Defendant notified state attorneys general and many customers and other persons about a widespread data breach involving sensitive personal identifiable information of certain individuals. As a result of the data breach, the Plaintiff and the Class Members are at an imminent risk of identity theft, says the suit. The suit further alleges that the Plaintiff and Class Members have suffered numerous actual and concrete injuries as a direct result of the data breach, including: (a) invasion of privacy; (b) financial costs incurred mitigating the mitigating the materialized risk and imminent threat of identity theft; (c) loss of time and loss of productivity incurred mitigating the mitigating the materialized risk and imminent threat of identity theft; (d) financial costs incurred due to actual identity theft; (e) loss of time incurred due to actual identity theft; (f) loss of time heeding Defendant's warnings and following its instructions in the Notice Letter; (g) the loss of benefit of the bargain (price premium damages), to the extent Class Members paid CSS for services; (h) deprivation of value of their PII; and (i) the continued risk to their Sensitive Information, which remains in the possession of Defendant, and which is subject to further breaches, so long as Defendant fails to undertake appropriate and adequate measures to protect Plaintiff's and Class Members' sensitive information. Community Surgical Supply, Inc. is a clinically-focused home care equipment and service provider that works with medical professionals to provide medical care solutions in the home.[BN] The Plaintiff is represented by: Victoria Maniatis, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 741-5600 E-mail: VManiatis@milberg.com - and - Gary M. Klinger, Esq. David K. Lietz, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 227 W. Monroe Street, Suite 2100 Chicago, IL 60606 Telephone: (866) 252-0878 E-mail: gklinger@milberg.com - and - Terence R. Coates, Esq. Justin C. Walker, Esq. Jonathan T. Deters, Esq. MARKOVITS, STOCK & DEMARCO, LLC 119 E. Court Street, Suite 530 Cincinnati, OH 45202 Telephone: (513) 651-3700 Facsimile: (513) 665-0219 E-mail: tcoates@msdlegal.com jwalker@msdlegal.com jdeters@msdlegal.com CONOCOPHILLIPS COMPANY: Krempasky Sues Over Inspectors' Unpaid OT ----------------------------------------------------------------- GREG KREMPASKY, individually and on behalf of others similarly situated, Plaintiff v. CONOCOPHILLIPS COMPANY, Defendant, Case No. 4:2-cv-02800 (S.D. Tex., August 18, 2022) is a class and collective action complaint brought against the Defendant to recover unpaid overtime wages and other damages pursuant to the Fair Labor Standards Act and the Alaska Wage and Hour Act. The Plaintiff was employed by the Defendant as an Inspector from approximately February 2020 until June 2021. According to the complaint, the Plaintiff and other similarly situated Inspectors were treated by the Defendant as independent contractors. Despite regularly working more than 40 hours per week, 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 of paying them overtime, the Defendant paid them a flat day-rate, says the suit. ConocoPhillips is an oil and natural gas exploration and production company operating worldwide and throughout the United States. [BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Taylor Montgomery, Esq. JOSEPHSON DUNLAP, LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Tel: (713) 352-1100 Fax: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com tmontgomery@mybackwages.com - and – Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 E-mail: rburch@brucknerburch.com CONTROL GROUP: Appeals Denial of Bid to Dismiss Camacho Suit ------------------------------------------------------------ CONTROL GROUP MEDIA COMPANY, LLC, et al., are taking an appeal from a court ruling denying their motion to dismiss the consolidated action entitled Jose Medina Camacho, et al., Plaintiffs, v. Control Group Media Company, LLC, et al., Defendants, Case No. 3:21-cv-01954, in the U.S. District Court for the Southern District of California. The Plaintiffs, on behalf of themselves and all others similarly situated, brought this class action suit against the Defendants for their alleged unlawful practice of using the names and identities of Alabama and California residents without their consent in order to promote Defendants' services in violation of the Alabama Right of Publicity Act and the California Right of Publicity Statute. On January 31, 2022, the Defendants filed a motion to dismiss the Plaintiffs' complaint and a motion consolidating actions. On July 18, 2022, District Judge Michael M. Anello consolidated the actions filed against the Defendant, but denied denied the Defendants' motion to dismiss. The appellate case is captioned as Jose Medina Camacho, et al., v. Control Group Media Company, LLC, et al., Case No. 22-55735, in the United States Court of Appeals for the Ninth Circuit, filed on August 3, 2022. The briefing schedule in the Appellate Case states that: -- Appellants Control Group Media Company, LLC and Instant Checkmate, LLC Mediation Questionnaire was due on August 10, 2022; -- Appellants Control Group Media Company, LLC and Instant Checkmate, LLC opening brief is due on October 4, 2022. -- Appellees Jose Medina Camacho and Rhonda Cotta answering brief is due on November 4, 2022. -- Appellants' optional reply brief is due 21 days after service of the answering brief. [BN] Plaintiffs-Appellees JOSE MEDINA CAMACHO, et al., on behalf of themselves and all others similarly situated, are represented by: Lily Hough, Esq. EDELSON PC 150 California Street, 18th Floor San Francisco, CA 94111 Telephone: (415) 212.9300 Facsimile: (415) 373.9435 E-mail: lhough@edelson.com - and - Benjamin Thomassen, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 E-mail: bthomassen@edelson.com - and - Philip L. Fraietta, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: pfraietta@bursor.com Defendants-Appellants Control Group Media Company, LLC, et al., are represented by: Wade Andrew Thomson, Esq. Debbie L. Berman, Esq. JENNER & BLOCK LLP 353 N. Clark St. Chicago, IL 60654 Telephone: (312) 222-9350 E-mail: wthomson@jenner.com dberman@jenner.com - and - Clifford Warren Berlow, Esq. JENNER & BLOCK LLP 353 N. Clark St. Chicago, IL 60654 Telephone: (312) 840-7366 E-mail: cberlow@jenner.com - and - Kate Spelman, Esq. JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071-2054 Telephone: (213) 239-2246 E-mail: kspelman@jenner.com CONVERSE INC: Order in Campos Suit to Start No Earlier Than Nov. 13 ------------------------------------------------------------------- Judge Jesus G. Bernal of the U.S. District Court for the Central District of California ruled that judgment will take effect in the lawsuit entitled ANDRES CAMPOS, individually and on behalf of all others similarly situated, Plaintiff v. CONVERSE, INC.; and DOES 1-10, inclusive, Defendants, Case No. 5:20-cv-01576-JGB (SPx) (C.D. Cal.), no earlier than Nov. 13, 2022. After reviewing Plaintiff Andres Campos's unopposed motion for final approval of class action settlement, attorneys' fees, and costs, the Court orders that judgment will take effect no earlier than Nov. 13, 2022, on the terms set forth in the Court's Order Granting-In-Part and Denying-In-Part Plaintiff's Motion for Final Approval of Class Action Settlement, Attorneys' Fees, and Costs (the "Order"). Judge Bernal ordered that the Motion is granted-in-part and denied-in-part as follows: 1. Because Converse failed to comply with CAFA's notice requirements, this Order will take effect no earlier than 90 days from today's date (i.e., Nov. 13, 2022), based on the understanding that Converse will provide the appropriate CAFA notice today; 2. The Court grants final approval to the parties' Settlement Agreement. The parties will perform their obligations pursuant to the terms of the Agreement and this Order; 3. The Plaintiff's request for $150,000 in attorneys' fees and $14,323.53 in costs is granted; 4. The Plaintiff's request for an incentive award of $8,500 is denied. He will instead be paid an incentive award of $6,000 in accordance with this Order; 5. The Plaintiff's request for $8,000 in settlement administration costs is granted; 6. The following classes are certified under Federal Rule of Civil Procedure 23(c) for settlement purposes: Class 1 -- Unpaid Wages Class: All non-exempt employees employed by Converse, Inc. at any of Converse, Inc.'s two warehouse facilities in California at any time during the period beginning four years prior to the date of the filing of this action and ending on the date of preliminary approval or as otherwise determined by the Court; and Class 2 -- Section 203 Class: All members of any of Class 1 who, during the period beginning three years prior to the date of the filing of this action and ending on the date of preliminary approval or as otherwise determined by the Court, were either voluntarily or involuntarily separated from their employment; 7. All Class Members, who did not validly and timely request exclusion from the Settlement have released their claims, as set forth in the Agreement, against any of the released parties, as defined in the Agreement; 8. Except as to any Class Members who have validly and timely requested exclusion, this action is dismissed with prejudice, with all parties to bear their own fees and costs, except as set forth herein and in the prior orders of the Court; and 9. Without affecting the finality of the Order, the Court retains jurisdiction over the parties, including Class Members, for the purposes of construing, enforcing, and administering the Order and Judgment, as well as the Agreement itself. The Clerk is directed to enter this Judgment pursuant to Federal Rule of Civil Procedure 58. A full-text copy of the Court's Judgment dated Aug. 15, 2022, is available at https://tinyurl.com/5x9s2fd4 from Leagle.com. COOK COUNTY, IL: Review of Class Cert. Denial in Elizarri Denied ---------------------------------------------------------------- In the case, LEONCIO ELIZARRI, by his Special Administrator LETICIA PEREZ, GREGORY L. JORDAN, and TED VELLEFF, individually and on behalf of all other similarly situated, Plaintiffs v. SHERIFF OF COOK COUNTY and COOK COUNTY, ILLINOIS, Defendants, Case No. 17-cv-8120 (N.D. Ill.), Judge Steven C. Seeger of the U.S. District Court for the Northern District of Illinois, Eastern Division, denies the Plaintiffs' motion for reconsideration of the Court's denial of their motion for class certification. The case is about the handling of detainees' property, including government IDs, at the Cook County Jail. In 2017, Elizarri filed a putative class action against the Sheriff of Cook County and the County itself for their handling of property -- including detainees' government ID cards -- at the Jail. An amended complaint added Gregory Jordan as a named plaintiff. Both Elizarri and Jordan entered the Cook County Jail with government IDs, among other personal property, and claimed that they never got their property back. Two years later, the case was reassigned from Judge Durkin to this Court. At the initial status hearing after reassignment, defense counsel revealed that the Defendants had located the property of the two named plaintiffs (Elizarri and Jordan), and wanted to return it. So the Court facilitated the property exchange, and by October 2020, the "Defendants returned all the property belonging to the named plaintiffs." The return of the property called into question whether Elizarri and Jordan could serve as adequate class representatives, especially for injunctive relief. Soon after, the Plaintiffs requested and received leave to amend the complaint yet again, adding Ted Velleff as a class representative. They expressly did so because of the concern about the adequacy of representation after the return of the property. The Second Amended Complaint includes three claims. One of the claims is about detainees' clothing. The Plaintiffs claim that the Defendants took detainees' clothing and gave it away in violation of the Takings Clause of the Fifth Amendment. The other two claims are about detainees' government identification cards. The Plaintiffs claim that the Defendants took, stored, and destroyed property -- including identification cards -- in violation of the Fourteenth Amendment. And they claim that the Defendants failed to give notice to the detainees that their property was available for pickup, in violation of the Due Process Clause of the Fourteenth Amendment. The Plaintiffs later moved for class certification. They originally sought to certify four subclasses. They sought certification of a "clothing" subclass, called the "Fifth Amendment Takings Subclass." The Plaintiffs also requested certification of three "Fourteenth Amendment Damages Subclasses." The first Fourteenth Amendment subclass was a "government identification" subclass. Another Fourteenth Amendment subclass involved property that was sold, destroyed, or lost after Nov. 9, 2015. Id. The final Fourteenth Amendment subclass involved property that remains in the custody of the Sheriff. The Plaintiffs then backtracked and narrowed their request for class certification. In their supporting memorandum, they requested certification of two subclasses, not four. The first subclass included "persons whose clothing was taken by the Sheriff to be used by detainees upon release from the Cook County Jail (Fifth Amendment Takings Subclass)." The second subclass included "persons whose government issued identification remained in the custody of the Sheriff of Cook County (Fifth and Fourteenth Amendment Damages Subclass)." The Plaintiffs "withdrew their request for certification of the 'clothing' subclass." They requested certification of a "government identification" subclass, only. Specifically, theyasked the Court to certify a class of "all persons who left the Cook County Jail to serve a sentence in the Illinois Department of Corrections on and after Nov. 9, 2015 and whose government issued identification remained in the custody of the Sheriff of Cook County." The Defendants opposed the motion for class certification on a number of grounds, including numerosity. For some reason, the Plaintiffs declared victory in their reply when it came to numerosity. They represented that the "Defendants do not challenge numerosity," even though the Defendants had, in fact, argued against numerosity. Meanwhile, the Defendants located property belonging to Velleff (from his detention in 2013) and returned those items on June 16, 2021. Velleff questioned whether the Jail has more property from his detentions in 2009, 2010, or 2016. But the Defendants could not locate any such property. And Velleff isn't sure if any such property exists. Velleff does not know if the Defendants have returned all of his property. So no one knows if Defendants continue to possess any property belonging to Velleff. The Court ultimately denied the Plaintiffs' motion for class certification. It Court concluded that they had failed to satisfy the numerosity requirement of Rule 23. Id. The record was thin, if not barren. "There is almost nothing in the record about how many detainees entered the Jail with IDs, but later exited the Jail and entered the IDOC without them during the class period." The Plaintiffs offered 42 declarations, but 40 of the 42 declarants were not members of the putative class. The Court also expressed doubt about whether the Plaintiffs could satisfy the other requirements for class certification, including adequacy of representation. But it did not reach those issues given that the Plaintiffs fell short on numerosity. The Plaintiffs moved for reconsideration. According to them, the Defendants "did not contest that the number of persons in the proposed class satisfies the numerosity requirement." They then attempted to fill the gaps and mend the hold. They announced that they "would have submitted the evidence described" if they had known that numerosity was at issue. They attempted to backfill the record, offering (1) a "Shipment Donation/Designation Form;" (2) the Plaintiffs' interrogatory answers; and (3) a "prisoner's handbook" to support their position. Basically, the Plaintiffs moved for reconsideration on two grounds. First, they argue that the Defendants did not challenge numerosity, so the Court "may have departed from the principle of party presentation in its analysis of numerosity." Second, they argue that if they had known that the Defendants contested numerosity, they would have supported their motion for class certification with more evidence. Judge Seeger opines that the Plaintiffs cannot establish numerosity simply based on the assumption that lots of people entered Cook County Jail with government IDs, and based on a policy that gave detainees options. Before the detainees went to the IDOC, the Jail asked the detainees if they still wanted their personal property. If so, the Jail gave detainees the opportunity to have someone pick it up. Detainees who abandoned their property, or who had friends or relatives pick it up, are not in the proposed class. The putative class covers detainees who entered the Jail with IDs, but "whose government issued identification remained in the custody of the Sheriff of Cook County." There is nothing in the record about how often detainees completed the form and asked for friends or relatives to retrieve their property. And there is nothing in the record about how often detainees abandoned their personal property altogether. Maybe it happened often, or maybe not. It is anyone's guess. Making assumptions has its place, but at some point, indulging assumptions comes to an end. The Plaintiffs ask the Court to stack assumption upon assumption. The assumptions include how many detainees entered the Jail, and went to the IDOC, without their IDs, and without having someone else pick them up. A plaintiff who wants class certification must offer more than a tower of assumptions. Judge Seeger holds that class certification cannot rest on speculation, guesswork, or conclusory assurances that a putative class satisfies Rule 23. The Plaintiffs gave the Court little else to go on, despite plenty of time to gather the evidence. The Federal Rules demand a rigorous analysis, but their motion for class certification lacked rigor. For these reasons, their motion for reconsideration is denied. A full-text copy of the Court's Aug. 16, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/5n6nzbd5 from Leagle.com. DEBTSY INC: Winter Files FDCPA Suit in S.D. Illinois ---------------------------------------------------- A class action lawsuit has been filed against Debtsy, Inc. The case is styled as Brenda Winter, individually and on behalf of all others similarly situated v. Debtsy, Inc., Crown Asset Management, LLC, Case No. 3:22-cv-01893 (S.D. Ill., Aug. 17, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Debtsy, Inc. is a collection agency located in New York City.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601-2726 Phone: (201) 282-6500 Email: ysaks@steinsakslegal.com DOMETIC CORPORATION: Slade Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Dometic Corporation. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Dometic Corporation, Case No. 1:22-cv-06972 (S.D.N.Y., Aug. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Dometic Group -- https://www.dometic.com/en-us/outdoor -- is a Swedish company that manufactures a variety of products, notably for the recreational vehicle, marine, and hospitality industries in the areas of Food & Beverage, Climate, Power & Control, and other applications.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com DUMBO MOVING: Brkic Files FLSA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Dumbo Moving & Storage, Inc., et al. The case is styled as Milija Brkic, individually and on behalf of others similarly situated v. Dumbo Moving & Storage, Inc., Lior Rachmany, Case No. 1:22-cv-07029 (S.D.N.Y., Aug. 17, 2022). The lawsuit is brought over alleged violation of the Fair Labor Standards Act. Dumbo Moving and Storage -- https://dumbomoving.com/ -- is an American moving company.[BN] The Plaintiff appears pro se. ENDLESS GAMES: Senior Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Endless Games, Incorporated. The case is styled as Frank Senior, on behalf of himself and all other persons similarly situated v. Endless Games, Incorporated, Case No. 1:22-cv-07062-AT (S.D.N.Y., Aug. 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Endless Games -- https://endlessgames.com/ -- offers card games, dice games, party games, and word games.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal ENERGY TRANSFER: Robbins Geller Named Lead Counsel in Vega Suit --------------------------------------------------------------- In the case, MIKE VEGA, on behalf of all others similarly situated, Plaintiff v. ENERGY TRANSFER LP, KELCY L. WARREN, THOMAS E. LONG, MARSHALL S. McCREA III, BRADFORD DICERKSON WHITEHURST, and JOHN W. McREYNOLDS, Defendants, Case No. 22 Civ. 4614 (AKH) (S.D.N.Y.), Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York appoints the New Mexico State Investment Council and Public Employees Retirement Association of New Mexico as the Lead Plaintiff and Robbins Geller Rudman & Dowd LLP as the Lead Counsel. On Aug. 10, 2022, Judge Hellerstein issued an order appointing New Mexico Funds as lead plaintiff and Robbins Geller Rudman & Dowd LLP as lead counsel. In the conclusion, he directed the New Mexico Funds to file an amended complaint to conform the caption, the Defendants to answer or otherwise respond, and the parties to appear for an initial pre-trial conference, but failed to specify the dates for these events. Now, his Amended Order corrects those omissions. The class action alleges that Defendant Energy Transfer, a company engaged in natural gas and propane pipeline transport whose shares trade on the NYSE, and its directors and officers, made materially false and misleading statements, and also failed to disclose, that (i) Energy Transfer had inadequate internal controls and procedures to prevent contractors from engaging in illegal conduct with respect to drilling activities, or failed to mitigate properly known issues; (ii) Energy Transfer, through its subsidiary hired third-party contractors whose conduct caused severe pollution; and (iii) Energy Transfer continually downplayed its potential civil liabilities while the Federal Energy Regulatory Commission was actively investigating Energy Transfer's wrongdoing. The Complaint seeks relief on behalf of all those who purchased or otherwise acquired common shares of Energy Transfer between April 13, 2017 and Dec. 20, 2021, under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995, 15 U.S.C. Sections 78j(b) and 78t(a), and Rule 10b-5 promulgated thereunder, 17 C.F.R. Section 240.10b-5. On Aug. 2, 2022, four potential class members disclosed their financial interest and moved to be appointed as lead plaintiff and for their respective counsel to be appointed lead counsel -- Police and Fire Retirement System of the City of Detroit claiming $7.3 million loss; Mike Vega claiming $3,699.36 loss; Josephine Dameyer claiming $276,639.72 loss; and New Mexico Funds claiming $55.2 million. In light of the disclosures, the parties stipulated that the New Mexico Funds are the presumptive lead plaintiffs and ask me to appoint them as lead plaintiffs and their counsel, Robbins Geller Rudman & Dowd LLP, as lead counsel. First, Judge Hellerstein finds that the New Mexico Funds have the greatest financial interest, making them the presumptive lead plaintiff under the PSLRA. Second, and most importantly, the New Mexico Funds have the greatest financial interest, as they claim losses of greater than $55.2 million. The losses far exceed those claimed by any other movant, rendering the New Mexico Funds the "presumptive lead plaintiff" under the PSLRA. Finally, they satisfy the typicality and adequacy requirements of Fed. R. Civ. P. 23. The New Mexico Funds also are adequate plaintiffs because they have retained class counsel that is qualified, experienced, and generally able to conduct the litigation; there is no conflict between the New Mexico Funds and the members of the class; and, they have a sufficient interest in the outcome of the case to ensure vigorous advocacy. And, they have retained counsel that is experienced, qualified, and capable. Accordingly, because the New Mexico Funds moved timely, have the greatest financial interest in the litigation, and satisfy the typicality and adequacy requirements of Rule 23, Judge Hellerstein appoints the New Mexico Funds as lead plaintiffs. In addition, he sees no reason to disturb the New Mexico Funds's reasonable choice of lead counsel, Robbins Geller Rudman & Dowd LLP. The case will proceed under the name In re Energy Transfer Securities Litigation. The New Mexico Funds will file an amended complaint, conforming the caption. The Defendants will answer or otherwise respond by Sept. 15, 2022. The parties will appear for an initial pre-trial conference on Oct. 14, 2022, at 10:00 a.m. The Clerk of Court will terminate the open motions. A full-text copy of the Court's Aug. 16, 2022 Amended Order is available at https://tinyurl.com/3bu3jdyn from Leagle.com. EVMO INC: Faces Greenberg Suit Over Unsolicited Telephone Calls --------------------------------------------------------------- CHARLES GREENBERG, individually and on behalf of all others similarly situated, Plaintiff v. EVMO, INC. d/b/a RIDESHARE RENTAL, Defendant, Case No. CACE-22-012222 (Fla. 17th Jud. Cir. Ct., August 18, 2022) is a class action complaint brought against the Defendant for its alleged violations of the Florida Telephone Solicitation Act. According to the complaint, the Plaintiff received telephonic sales call from the Defendant to his cellular telephone number on or about June 7, 2022. The Defendant allegedly engages in telephonic sales calls to consumers without obtaining their prior express written consent in an attempt to promote its goods and services. The Plaintiff asserts that he never signed any type of authorization permitting or allowing the placement of a telephonic sales call by text message using an automated system for the selection and dialing of telephone numbers. As a result of the Defendant's alleged unsolicited telephonic sales calls, the Plaintiff and other similarly situated individuals were harmed in the form of invasion of privacy, aggravation, annoyance, inconvenience, and statutory damages. Thus, on behalf of himself and all other similarly situated individuals, the Plaintiff seeks an injunction requiring the Defendant to cease all telephonic sales calls made without express written consent, as well as statutory damages, and other relief as the Court deems necessary. EVMO, Inc. d/b/a Rideshare Rental is a California technology-enabled fleet management and delivery vehicle rental company. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE P.A. 14 NE 1st Ave., Suite 705 Miami, FL 33132 Tel: 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 Office: (786) 289-9471 Direct: (305) 975-3320 Fax: (786) 623-0915 E-mail: scott@edelsberglaw.com chris@edelsberglaw.com EVOL NUTRITION: Court Dismisses Womack's First Amended Complaint ---------------------------------------------------------------- In the case, DUANE WOMACK, individually and on behalf of all others similarly situated, Plaintiff v. EVOL NUTRITION ASSOCIATES, INC., d/b/a Red Dawn Energy, a Georgia Corporation, Defendant, Case No. 6:21-cv-00332 (BKS/TWD) (N.D.N.Y.), Judge Brenda K. Sannes of the U.S. District Court for the Northern District of New York grants the Defendant's motion to dismiss the Plaintiff's First Amended Complaint. Mr. Womack commenced this proposed class action against the Defendant seeking damages, restitution, injunctive relief, costs, and attorney's fees for its allegedly unfair and deceptive trade practices in the marketing, distribution, and retail of its "Sleep Walker" and "Red Dawn" Products (the "Products"), which contain a drug known as Phenibut. He asserted his claim on behalf of himself and others similarly situated who purchased the Products, alleging violation of the Unfair and Deceptive Trade Practices Act, New York General Business Law ("NYGBL") Section 349 et. seq. The Plaintiff alleges that the Defendant "knew that the Products were unsafe and addictive"; he "is informed and believes that Defendant received numerous consumer complaints regarding the safety of its Products," based on "user complaints" that were "posted elsewhere." He alleges that the only method of submitting a complaint to the Defendant regarding the Products is "through non-public means." It does not share complaints regarding the Products with customers. The Plaintiff alleges that the Defendant "attempted to obscure the exact nature of the presence of Phenibut in its Products" by using the terms "Proprietary Blend" or "Proprietary Focus/Mood Blend" on the Products' labels. By using the term "Proprietary Blend," or "Proprietary Focus/Mood Blend" the Defendant "is able to hide the amount of Phenibut in its Products by aggregating the Phenibut contents with other ingredients." The Plaintiff alleges that the Defendant has "exclusive knowledge regarding the amount of Phenibut in the Products and the corresponding research and consumer complaints regarding whether this amount of Phenibut is safe or addictive," and yet, "failed to provide this information, or any warning regarding the Phenibut contained within the Products, to consumers." On Dec. 14, 2021, the Court granted the Defendant's motion to dismiss the Complaint for failure to allege an omission-based claim under NYGBL Section 349, finding that the Complaint "failed to allege that information regarding Phenibut's health risks and addictive nature was exclusively in the Defendant's possession, or even that it had knowledge that the Product was causing health problems to consumers." The Court granted leave to replead and the Plaintiff has filed the FAC. Presently before the Court is the Defendant's motion to dismiss the FAC under Fed. R. Civ. P. 12(b)(6) for failure to state a claim and, in the alternative, to strike irrelevant and impertinent materials under Fed. R. Civ. P. 12(f). The motion is fully briefed, with a response from the Plaintiff and a reply from the Defendant. The Defendant moves to dismiss the FAC for failure to plead that Defendant had exclusive knowledge of the alleged side effects and safety concerns associated with Phenibut. It notes that the petition containing safety and health complaints, cited in the FAC, is online and available to the public. The Plaintiff counters that he has alleged that it failed to disclose that its Products contained an unapproved food additive. Judge Sannes finds that the Plaintiff has failed to plausibly allege an NYGBL Section 349 claim based on (1) the failure to disclose that Phenibut was not approved by the FDA, (2) the use of the chemical name for Phenibut on the Products' packaging, or (3) the failure to disclose the dosage of Phenibut in the Products. First, Judge Sannes finds that the Plaintiff's allegations that the Defendant failed to disclose that the Products contained an unapproved food additive in violation of the FDCA, unaccompanied by allegations that the Products' labeling was false or implied FDA approval, is not sufficient to state a claim under NYGBL Section 349. Second, she finds that the Plaintiff fails to plausibly allege that consumers could not have reasonably discovered that the Products contained Phenibut or that the existence of Phenibut in the Products was exclusively within the Defendant's knowledge. Lastly, nor does she finds that the Plaintiff has plausibly alleged an omission-based GBL claim based upon the omission of the dosage of Phenibut. Accordingly, the Defendant's motion to dismiss the FAC for failure to allege a plausible claim for relief under NYGBL Section 349 is granted. The FAC is accordingly dismissed. The Clerk of the Court is directed to close the case. A full-text copy of the Court's Aug. 16, 2022 Memorandum-Decision & Order is available at https://tinyurl.com/y85avhb3 from Leagle.com. Trenton R. Kashima -- tkashima@sommerspc.com -- Sommers Schwartz, P.C., San Diego, CA, Jan M. Smolak -- smolak@michaels-smolak.com -- Michaels & Smolak, P.C., in Auburn, New York, for the Plaintiff. Phillip A. Oswald -- oswald@ruppbaase.com -- Rupp Baase Pfalzgraf Cunningham LLC, Saratoga Springs, NY, Kevin J. Federation -- federation@ruppbaase.com -- Rupp Baase Pfalzgraf Cunningham LLC, in Rochester, New York, for the Defendant. FAIRHOLME FUNDS: Seeks More Time to File Writ of Certiorari ----------------------------------------------------------- FAIRHOLME FUNDS, INC., et al., filed a request with the Supreme Court of United States for an extension of time within which to file a petition for a writ of certiorari in the lawsuit styled Fairholme Funds, Inc., et al., Plaintiffs v. UNITED STATES, Defendant, Case No. 1:13-cv-00465-MMS. The judgment for which review is sought is the decision of the United States Court of Appeals for the Federal Circuit in the case captioned as Fairholme Funds, Inc., et al., Petitioners vs. United States, et al., Case Nos. 20-1912 and 20-1914. The Plaintiffs, on behalf of themselves and similarly situated shareholders who owned stock in Fannie Mae and Freddie Mac (collectively, the Enterprises), filed complaints with the United States Court of Federal Claims, alleging the following direct claims: (1) the net worth sweep violated the Fifth Amendment for taking (or, alternatively, illegally exacting) the shareholders' equity in the Enterprises without just compensation; (2) the Federal Housing Finance Agency (FHFA) breached its fiduciary duties by entering into the net worth sweep; and (3) the FHFA and the Enterprises breached an implied-in-fact contract (with shareholders as the intended third-party beneficiaries) by agreeing to the net worth sweep. The government moved to dismiss the claims in every case before the Claims Court in a single, omnibus motion. The Claims Court dismissed the shareholders' direct Fifth Amendment takings and illegal exaction claims for lack of standing because it found them to be substantively derivative in nature. The Claims Court also dismissed for lack of subject matter jurisdiction the shareholders' direct claims for breach of fiduciary duty and breach of implied-in-fact contract. The Claims Court, however, found that Andrew Barrett, an individual shareholder of the Enterprises, had standing to bring his derivative claims. The United States Court of Appeals for the Federal Circuit affirmed the Claims Court's ruling in part saying the Claims Court did not err in dismissing shareholders' direct claims; but reversed in part, saying the Claims Court improperly failed to dismiss the remaining derivative claims. [BN] Plaintiffs-Petitioners FAIRHOLME FUNDS, INC., et al., are represented by: David H. Thompson, Esq. Cooper & Kirk, PLLC 1523 New Hampshire Avenue, N.W. Washington, DC 20036 E-mail: dthompson@cooperkirk.com Defendant-Respondent UNITED STATES, is represented by: Elizabeth B. Prelogar, Esq. Solicitor General UNITED STATES DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 E-mail: SupremeCtBriefs@USDOJ.gov FERMENTED SCIENCES: Allen Sues Over Mislabeled Alcoholic Beverages ------------------------------------------------------------------ Christina Van Allen, individually and on behalf of all others similarly situated, Plaintiff v. Fermented Sciences, Inc., Defendant, Case No. 8:22-cv-01867-MSS-MRM (M.D. Fla., Aug. 15, 2022) arises from the Defendant's misleading representations of its alcoholic beverages in violation of the Florida Deceptive and Unfair Trade Practices Act and State Consumer Fraud Acts. The Defendant manufactures, labels, markets, and sells "Hard Seltzer" and "Hard Kombucha," promoted as containing "Antioxidant Vit[amin] C," "Antioxidants," "Real Botanicals," and "Crafted With Live Probiotics," among other attributes, under the Flying Embers brand. According to the complaint, the emphasis on "antioxidant Vit C" suggests the products are "a healthful source of nutrients, obscuring the fact that alcoholic beverages provide empty calories, are associated with serious health conditions, and can impair the body's metabolism of nutrients," like vitamin C. The claims that the products contain "live probiotics" are misleading nutrient content claims. Even outside of the context of alcoholic beverages, the promotion of a food or beverage as containing probiotics would be misleading, says the suit. By labeling the products in this manner, Defendant gained an advantage against other companies, and against consumers, including Plaintiff, seeking to purchase products which contained ingredients whose positive effects outweighed the negative effects from consuming alcohol, the suit added.[BN] The Plaintiff is represented by: Will Wright, Esq. THE WRIGHT LAW OFFICE, P.A. 515 N Flagler Dr Ste P-300 West Palm Beach, FL 33401 Telephone: (561) 514-0904 E-mail: willwright@wrightlawoffice.com - and - Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck, NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com FIAT CHRYSLER: Bagley Suit Transferred to E.D. Michigan ------------------------------------------------------- The case styled as Erika Bagley, James Bagley, individuals, on behalf of themselves and all others similarly situated v. Fiat Chrysler Automobiles (FCA) US, LLC, Case No. 5:22-cv-01797 was transferred from the U.S. District Court for the Eastern District of Pennsylvania, to the U.S. District Court for the Eastern District of Michigan on Aug. 17, 2022. The District Court Clerk assigned Case No. 2:22-cv-11894-DML to the proceeding. The nature of suit is stated as Prop. Damage Prod. Liability. Fiat Chrysler Automobiles N.V. (FCA) -- https://fcagroup-me.com/ -- was an Italian-American multinational corporation primarily known as a manufacturer of automobiles, commercial vehicles, auto parts and production systems.[BN] The Plaintiff is represented by: Charles E Schaffer, Esq. LEVIN SEDRAN & BERMAN 510 Walnut Street, Ste. 500 Philadelphia, PA 19106 Phone: (215) 592-1500 Fax: (215) 592-4663 Email: cschaffer@lfsblaw.com FLAG FABLES INC: Toro Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Flag Fables, Inc. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. Flag Fables, Inc., Case No. 1:22-cv-07036 (S.D.N.Y., Aug. 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Flag Fables -- https://www.flagfables.com/ -- offers an ever expanding collection of unique gifts and indoor/outdoor home decorative products.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com FPI MANAGEMENT: Lewis Files Suit in Cal. Super. Ct. --------------------------------------------------- A class action lawsuit has been filed against FPI Management, Inc. The case is styled as Kelly Lewis, individually and on behalf of all others similarly situated v. FPI Management, Inc., Case No. 34-2022-00325335-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Aug. 17, 2022). The case type is stated as "Other Employment - Civil Unlimited." FPI Management -- https://fpimgt.com/ -- is a privately owned, third-party, multifamily property management firm.[BN] The Plaintiff is represented by: Caleb Marker, Esq. ZIMMERMAN REED, LLP 6420 Wilshire Blvd., Ste. 1080 Los Angeles, CA 90048-5539 Phone: 877-500-8780 Fax: 877-500-8781 Email: caleb.marker@zimmreed.com FRITO-LAY INC: Montgomery FLSA Suit Transferred to S.D. New York ---------------------------------------------------------------- The case styled as STARR MONTGOMERY, and others similarly situated, Plaintiffs v. FRITO-LAY, INC., Defendant, Case No. 3:22-cv-00185, was transferred from the U.S. District Court for the Northern District of Texas to the U.S. District Court for the Southern District of New York on Aug. 16, 2022. The Clerk of Court for the Southern District of New York assigned Case No. 7:22-cv-06982-UA to the proceeding. The suit is a collective action by Plaintiff, and others similarly situated, against the Defendant pursuant to the Fair Labor Standards Act, seeking damages for unpaid overtime, unpaid minimum wage, liquidated damages, and a reasonable attorney's fee and costs. Frito-Lay, Inc. manufactures, markets, and sells corn chips, potato chips, and other snack foods throughout the U.S.[BN] The Plaintiff is represented by: Charles Leonard Scalise, Esq. Daniel Bret Ross, Esq. ROSS SCALISE LAW GROUP 1104 San Antonio Street Austin, TX 78701 Telephone: (512) 474-7677 Facsimile: (512) 474-5306 - and - Michele R. Fisher, Esq. NICHOLS KASTER PLLP 4700 IDS Center 80 S 8th St Minneapolis, MN 55402 Telephone: (612) 256-3200 Facsimile: (612) 338-4878 - and - Steven Robert Samples, Esq. SAMPLES AMES PLLC 460 West Harwood Road Hurst, TX 76054 Telephone: (807) 605-1505 Facsimile: (855) 605-1505 The Defendant is represented by: Alison R. Ashmore, Esq. Elizabeth Anne Voss, Esq. DYKEMA GOSSETT PLLC 1717 Main St Suite 4200 Dallas, TX 75201 Telephone: (214) 462-6454 Facsimile: (866) 781-2975 GAMESTOP INC: Collects Private Info Without Consent, Aldana Says ---------------------------------------------------------------- ALEJANDRO ALDANA; and SCOTT GALLIE, individually and on behalf of all others similarly situated, Plaintiffs v. GAMESTOP, INC., Defendant, Case No. 1:22-cv-07063 (N.D.N.Y., Aug. 18, 2022) alleges that the Defendant violated the Video Privacy Protection Act by knowingly transmitting the Plaintiffs' and the putative class's personally identifiable information to unrelated third parties. According to the complaint, to solicit additional purchases, the Defendant knowingly collects and discloses its purchasers' personally identifiable information, including a record of every video game they purchase, to Facebook without consent. GAMESTOP, INC. operates specialty electronic game and PC entertainment software stores. The Company stores sell new and used video game hardware and software, as well as accessories. [BN] The Plaintiff is represented by: Joshua D. Arisohn, Esq. Philip L. Fraietta, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 Email: jarisohn@bursor.com pfraietta@bursor.com -and- Christopher R. Reilly, Esq. BURSOR & FISHER, P.A. 701 Brickell Avenue, Suite 1420 Miami, FL 33131 Telephone: (305) 330-5512 Facsimile: (305) 679-9006 Email: creilly@bursor.com GEICO CASUALTY: Purcell Appeals Insurance Suit Dismissal to 3rd Cir ------------------------------------------------------------------- MICHAEL PURCELL, Jr. is taking an appeal from a court ruling dismissing his lawsuit entitled Michael Purcell, Jr., individually and on behalf of all others similarly situated, Plaintiff, v. Geico Casualty Co., Defendant, Case No. 2-22-cv-00825, in the U.S. District Court for the Eastern District of Pennsylvania. The Plaintiff, individually and on behalf of all others similarly situated, filed a class action suit against the Defendant for allegedly offering illusory automobile insurance coverage under a single-vehicle policy. The Plaintiff brought claims for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, unjust enrichment, fraud, return of premiums, declaratory relief, and injunctive relief. On March 24, 2022, the Defendant filed a motion to dismiss Purcell's complaint for failure to state a claim. On May 20, 2022, the Court ordered the consolidation of Purcell's Case No. 2-22-cv-00825 to another lawsuit captioned as Isiah A. Jones, III, Plaintiff, v. Geico Choice Insurance Co., Defendant, Case No. 2-22-cv-00558. On July 27, 2022, District Gene E.K. Pratter granted a motion to dismiss filed by the Defendants. The Court dismissed the case without prejudice and ruled that the coverage was not illusory. Under Pennsylvania law, said the Court, the insurer must both provide stacking and the chance to waive that stacking coverage, even on single-vehicle policies. The appellate case is captioned as Michael Purcell, Jr. v. Geico Casualty Co., Case No. 22-2415, in the United States Court of Appeals for the Third Circuit, filed on August 4, 2022. [BN] Plaintiff-Appellant MICHAEL PURCELL, Jr., individually and on behalf of all others similarly situated, is represented by: Scott B. Cooper, Esq. SCHMIDT KRAMER 209 State Street Harrisburg, PA 17101 Telephone: (717) 232-6300 - and - Jack Goodrich, Esq. GOODRICH & ASSOCIATES 429 Fourth Avenue, Suite 900 Pittsburgh, PA 15219 Telephone: (412) 261-4663 - and - James C. Haggerty, Esq. HAGGERTY GOLDBERG SCHLEIFER & KUPERSMITH 1801 Market Street, Suite 100 Philadelphia, PA 19103 Telephone: (267) 350-6633 - and - Jonathan Shub, Esq. SHUB LAW 134 Kings Highway East, 2nd Floor Haddonfield, NJ 08033 Telephone: (856) 772-7200 Defendant-Appellee GEICO CASUALTY CO. is represented by: Kymberly Kochis, Esq. EVERSHEDS SUTHERLAND 1114 Avenue of the Americas The Grace Building, 40th Floor New York, NY 10036 Telephone: (212) 389-5000 GEICO CHOICE: Jones Appeals Insurance Suit Dismissal to 3rd Cir. ---------------------------------------------------------------- ISIAH A. JONES, III, et al., are taking an appeal from a court ruling dismissing their lawsuit entitled Isiah A. Jones, III and Michael Purcell, Jr., on behalf of themselves and all others similarly situated, Plaintiffs, v. Geico Choice Insurance Co. and Geico Casualty Co., Defendants, Case No. 2-22-cv-00558, in the U.S. District Court for the Eastern District of Pennsylvania. Plaintiffs Isiah A. Jones, III and Michael Purcell, Jr. filed separate complaints against Defendants Geico Choice Insurance Co. and Geico Casualty Co., Case Nos. 2-22-cv-00558 and 2-22-cv-00825, on February 11, 2022 and March 4, 2022, respectively, for allegedly offering illusory automobile insurance coverage under a single-vehicle policy. The Plaintiffs brought claims for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, unjust enrichment, fraud, return of premiums, declaratory relief, and injunctive relief. On March 2, 2022, and March 24, 2022, Defendants Geico Choice Insurance Co. and Geico Casualty Co. filed a motion to dismiss Plaintiffs Jones and Purcell's complaints, respectively, for failure to state a claim. On May 20, 2022, the Court ordered the consolidation of Case No. 2-22-cv-00825 to Case No. 2-22-cv-00558. On July 27, 2022, the Court granted the Defendants' motion to dismiss through an Order entered by District Gene E.K. Pratter. The Court dismissed the case without prejudice and ruled that the coverage was not illusory. Under Pennsylvania law, said the Court, the insurer must both provide stacking and the chance to waive that stacking coverage, even on single-vehicle policies. The appellate case is captioned as Isiah Jones, III, et al. v. Geico Choice Insurance Co., et al., Case No. 22-2414, in the United States Court of Appeals for the Third Circuit, filed on August 4, 2022. [BN] Plaintiffs-Appellants ISIAH A. JONES, III, et al., on behalf of themselves and all others similarly situated, are represented by: Scott B. Cooper, Esq. SCHMIDT KRAMER 209 State Street Harrisburg, PA 17101 Telephone: (717) 232-6300 - and - Jack Goodrich, Esq. GOODRICH & ASSOCIATES 429 Fourth Avenue, Suite 900 Pittsburgh, PA 15219 Telephone: (412) 261-4663 - and - James C. Haggerty, Esq. HAGGERTY GOLDBERG SCHLEIFER & KUPERSMITH 1801 Market Street, Suite 100 Philadelphia, PA 19103 Telephone: (267) 350-6633 - and - Jonathan Shub, Esq. SHUB LAW 134 Kings Highway East, 2nd Floor Haddonfield, NJ 08033 Telephone: (856) 772-7200 Defendants-Appellees GEICO CHOICE INSURANCE CO., et al., are represented by: Kymberly Kochis, Esq. EVERSHEDS SUTHERLAND 1114 Avenue of the Americas The Grace Building, 40th Floor New York, NY 10036 Telephone: (212) 389-5000 - and - Zachariah W. Lindsey, Esq. EVERSHEDS SUTHERLAND 700 Sixth Street, N.W., Suite 700 Washington, DC 20001 Telephone: (202) 383-0292 GOLDMAN SACHS: June 5 Trial Date Set for Gender-Bias Class Action ----------------------------------------------------------------- Anthony Lin, writing for Bloomberg Law, reports that Goldman Sachs Group Inc. faces a June 5 trial in a long-simmering gender-bias class action alleging the bank discriminated against thousands of women in pay and promotion. US District Judge Analisa Torres in Manhattan set the 2023 date in an order on Aug. 22. If the trial goes ahead as scheduled, it would be 13 years after the closely watched suit was filed and 18 years after the lead plaintiff first complained about discrimination at the bank to the Equal Employment Opportunity Commission. But the judge in her order on Aug. 22 narrowed the class in the case, agreeing with Goldman Sachs. [GN] GOODYEAR TIRE: Byars Sues Over Illegal Wiretapping --------------------------------------------------- Arisha Byars, individually and on behalf of all others similarly situated v. THE GOODYEAR TIRE AND RUBBER CO., an Ohio corporation; and DOES 1 through 25, inclusive, Case No. 5:22-cv-01358 (C.D. Cal., Aug. 1, 2022), is brought against the Defendant for its illegal wiretapping of all communications with the Defendant's website, www.goodyear.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, entitling the Plaintiff and Class Members to relief pursuant thereto, says the complaint. The Plaintiff is an adult citizen of California. The Defendant is an Ohio corporation who does business and affects commerce within the state of California and with California residents.[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 Phone: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com GOYA FOODS: Morel's Bid for Leave to File 2nd Amended Suit Denied ----------------------------------------------------------------- In the case, ANNERIS MOREL and HUGO MOREL TAVEAREZ, individually and on behalf of all others similarly situated, Plaintiffs v. GOYA FOODS, INC., and A.N.E. SERVICES, INC., Defendants, Civil Action No. 2:20-cv-05551-ES-CLW (D.N.J.), Magistrate Judge Cathy L. Waldor of the U.S. District Court for the Western District of New Jersey denies the Plaintiffs' motion for leave to file a second amended complaint to add two plaintiffs as class representatives. The Plaintiffs brought the putative class action in May 2020 and filed an amended complaint shortly thereafter. As alleged therein, the Plaintiffs work as sales representatives for the Defendants pursuant to employment contracts (entitled "Broker Agreements") which define them as independent contractors. They assert, however, that they are in fact employees of the Defendants, and accordingly, are protected by the New York Labor Law, certain provisions of which they allege that the Defendants have violated. Earlier this year, Judge Salas granted the Defendants' partial motion to dismiss the Amended Complaint. The Defendants deposed the Plaintiffs in November of 2021. The Plaintiffs' testimony revealed a lack of knowledge as to certain matters relating to the lawsuit and their roles as class representatives. After inferring that the Defendants would, accordingly, "plan to attack their adequacy to serve as class representatives" under FED. R. CIV. P. 23(a)(4), the Plaintiffs advised the Defendants of a desire to substitute new class representatives. Shortly thereafter, the Plaintiffs requested the Defendants' consent to their proposed addition of Danny Almonte and Gregory Brea (employees of Defendants) as class representatives; or alternatively, to stipulate that they meet Rule 23(a)(4)'s adequacy requirement. After the Defendants refused to consent, the Plaintiffs filed the instant motion, seeking to add Messrs. Almonte and Brea as representatives of the class. Importantly, the Court has entered a scheduling order setting a Nov. 24, 2020 deadline for motions to add parties or amend pleadings. The Plaintiffs filed the instant motion over 14 months after this date. Judge Waldor explains that Rule 16(b)(4) states that "a schedule may be modified only for good cause and with the judge's consent." For purposes of Rule 16, "a finding of good cause depends on the diligence of the moving party. In other words, the movant must show that the deadlines cannot be reasonably met despite its diligence." If good cause is shown, the Court proceeds to Rule 15(a)(2), under which "a party may amend its pleading only with the opposing party's written consent or the court's leave. It should freely give leave when justice so requires." The Plaintiffs' motion fails under Rule 16's diligence requirement, Judge Waldor opines. Her conclusion grows from the settled fact that Rule 16 diligence is lacking when a party fails to timely move to amend notwithstanding that, before the amendment deadline, it knew, or should have known, of the facts giving rise the proposed amendment. As applied in the case, this principle dictates that the Plaintiffs could, and should, have uncovered at the outset of this matter any issues with their capacity to serve as class representatives, and that their failure to do so renders them non-diligent for Rule 16 purposes. The crux of the Plaintiffs' Rule 16 argument is that the need to add additional class representatives became clear after the current plaintiffs were deposed and the counsel for the Defendants .informed them that they would not agree to the amendment." This argument fails, Judge Waldor holds. The failure to timely discover and address a possible pleading deficiency despite actual or constructive knowledge of it constitutes a lack of diligence under Rule 16. The Plaintiffs' argument that they have good cause to file an amended pleading because the Defendants pointed out a deficiency in the operative complaint is entirely misguided. Judge Waldor concludes by addressing two additional matters raised in the Plaintiffs' briefs. One is a collection of cases from "numerous courts in this Circuit and around the country that routinely allow pre-certification substitution of lead plaintiffs in a variety of circumstances." As the Defendants correctly note, most of these cases did not involve Rule 16(b)(4) analyses and instead proceeded only under the more lenient Rule 15(a)(2) standard. And those cited cases that did invoke Rule 16 are distinguishable on the grounds discussed. The Plaintiffs also argue that the motion should be granted in the interest of not "wasting judicial time and resources." While these are laudable goals, "judicial economy alone does not meet Rule 16(b)(4)'s 'good cause' standard." Judge Waldor therefore cannot grant the Plaintiffs' motion on judicial economy grounds. For the reasons she stated in her accompanying Opinion, Judge Waldor concludes that the Plaintiffs have failed to satisfy Rule 16(b)(4), and accordingly, their motion must be denied. An appropriate Order follows. A full-text copy of the Court's Aug. 16, 2022 Opinion & Order is available at https://tinyurl.com/5yth6tyc from Leagle.com. HDX WILL: Valdovinos Balks at Educational Specialists' Unpaid Wages ------------------------------------------------------------------- Esther Valdovinos, individually, and on behalf of all others similarly situated, Plaintiff v. HDX WILL, INC., a California Corporation doing business as HDX WILL NORTH AMERICA; WONG JUNG, an Individual, and DOES 1 through 100, inclusive, Defendants, Case No. 22STCV26573 (Cal. Super., Los Angeles Cty., Aug. 16, 2022) arises from the Defendants' systematic scheme of wage abuse and unlawful employment practices against Plaintiff in violation of the California Labor Code, the California Business and Professions Code, and the California Fair Employment and Housing Act. The complaint alleges that the Defendants failed to pay all minimum, regular wages and overtime wages, provide rest and meal periods, furnish accurate wage statements, pay wages on termination, and reimburse all necessary expenditures or losses. The Defendants also violated the laws as they engaged in unfair business practices, discrimination, and harassment based upon sex, says the complaint. The Plaintiff became employed by Defendant HDX as one of "Educational Specialist," a full-time, FLSA exempt position from September 24, 2018. HDX Will, Inc. is a manufacturing company for dental imaging equipment.[BN] The Plaintiff is represented by: Samy Harmoush, Esq. WORKERS ADVOCATE LAW GROUP 1230 Rosecrans Avenue Suite 300 Manhattan Beach, CA 90266 Telephone: (844) 400-7269 Facsimile: (213) 737-1070 E-mail: samy@workersadvocate.law HN & SONS LLC: Pagano Files Class Suit Over Alleged Tip Skimming ---------------------------------------------------------------- BENJAMIN PAGANO; PAIGE ACEVEDO; and MAGGIE MCNEIL, individually and on behalf of all others similarly situated, Plaintiffs v. HN & SONS LLC d/b/a BUSHWICK PUBLIC HOUSE; DERIHU 18 LLC a/k/a CHISPA; HOOMAN ENAYATIAN; DAVID LARODA; JOSH BECKETT; JOHN DOE and/or JANE DOE #1-10, Defendants, Case No. 1:22-cv-04897 (E.D.N.Y., Aug. 18, 2022) seeks to recover the stolen tips, failure to pay minimum wages, and failure to provide wage statement or paystubs to the Plaintiffs, as well as attorneys' fees, costs, liquidated damages, and injunctive and declaratory relief against Defendants' unlawful actions. The Plaintiffs were employed by the Defendants as food service employees. HN & SONS LLC d/b/a BUSHWICK PUBLIC HOUSE is a music venue, cafe, and bar located in New York. [BN] The Plaintiffs are represented by: William Li, Esq. WILLIAM K. LI LAW, PLLC 535 Fifth Avenue, 4th Floor New York, NY 10017 Telephone: (212) 380-8198 Email: wli@wlilaw.com I.J. BAYRAKDARIAN: Trujillo Sues Over Unpaid Overtime Wages ----------------------------------------------------------- Angie Trujillo, individually and on behalf of all others similarly situated v. I.J. BAYRAKDARIAN, D.M.D. A PROFESSIONAL CORPORATION, a California Corporation; and DOES 1-10, inclusive, Case No. 1:22-at-00627 (E.D. Cal., Aug. 18, 2022), is brought for unpaid overtime pursuant to the Fair Labor Standards Act of 1948. The Defendant violated the FLSA by failing to pay overtime wages at the proper rate; failing to provide compliant meal periods; failing to provide compliant rest periods; failing to provide complete wage statements to its current and former employees in California within the one year prior to the filing of this Complaint; waiting time penalties; failing to pay timely wages to employees based on the foregoing; unfair business practices based on the foregoing; and PAGA and other penalties based on the foregoing, says the complaint. The Plaintiff is a California resident who worked for the Defendants in Fresno, California. The Defendant operates orthodontics practices in California's Central Valley.[BN] The Plaintiff is represented by: Craig J. Ackermann, Esq. ACKERMANN & TILAJEF, P.C. 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Phone: (310) 277-0614 Facsimile: (310) 277-0635 Email: cja@ackermanntilajef.com - and - David S. Winston, Esq. WINSTON LAW GROUP, P.C. 1880 Century Park East, Suite 511 Los Angeles, CA 90067 Phone: (424) 288-4568 Facsimile: (424) 532-4062 Email: david@employmentlitigators.com ICE ROVER INC: Slade Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Ice Rover, Inc. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Ice Rover, Inc., Case No. 1:22-cv-06973 (S.D.N.Y., Aug. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ice Rover Inc. doing business as RovR Products -- https://www.rovrproducts.com/ -- innovates premium outdoor products and coolers that make gathering in the outdoors fun and getting there easier.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com KEEP HEALTHY INC: Senior Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Keep Healthy, Inc. The case is styled as Frank Senior, on behalf of himself and all other persons similarly situated v. Keep Healthy, Inc., Case No. 1:22-cv-07064 (S.D.N.Y., Aug. 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Keep Healthy -- https://keephealthyinc.com/ -- is an online marketplace for fruit and nut snack bars.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal KHAYLIE HAZEL YEARNING: Martin Files TCPA Suit in N.D. Mississippi ------------------------------------------------------------------ A class action lawsuit has been filed against Khaylie Hazel Yearning LLC. The case is styled as Andrew Martin, on behalf of himself and all others similarly situated v. Khaylie Hazel Yearning LLC, Case No. 3:22-cv-00176-SA-JMV (N.D. Miss., Aug. 18, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Khaylie Hazel Yearning LLC is a Mississippi Limited-Liability Company.[BN] The Plaintiff is represented by: Michael T. Ramsey, Esq. SHEEHAN AND RAMSEY, PLLC 429 Porter Ave Ocean Springs, MS 39564 Phone: (228) 875-05724 Email: mike@sheehanramsey.com KIA CORP: Cincinnati Car Owners Sue Over Vehicles' Theft Risks -------------------------------------------------------------- Brook Endale, writing for Enquirer, reports that at 3 a.m. July 14, a police officer knocked on Sherry Mason's front door in Pleasant Ridge. "Is your car supposed to be parked out front?" the officer asked her. Mason was confused. She had parked her car outside her building that Thursday night, as she does every night. Unfortunately, early that Friday morning, her 2020 Kia Sorento was waiting for her at an impound lot. The car was littered with trash, the steering column peeled off, and the dome lights removed, the Cincinnati Enquirer reports. Mason said other things missing from the car were its manual and her friend's dog's ashes she was supposed to deliver the next day. "I don't know why they would do that. It makes no sense. There was loose change and other things they didn't touch," Mason said. Mason said the theft has made her life difficult for the past month, and she's not alone. Numerous people have reached out to her on social media sharing their experiences having their Kia or Hyundai vehicle stolen. Mason is among those joining a lawsuit filed on Aug. 19 against the automakers aiming to have them fix or replace these vehicles and compensate impacted car owners. According to the Enquirer, Cincinnati attorney Jeffrey Goldenberg with Goldenberg Schneider, LPA filed a class action lawsuit against the automakers in the U.S. District Court for the Central District of California, where the companies are based. "Kia and Hyundai chose not to include what almost every other manufacturer includes in any model of their cars called an immobilizer device, and these vehicles can easily be started without a key," Goldenberg said. An immobilizer prevents the engine from starting unless the correct key is present. Goldenberg believes the automakers chose not to include an immobilizer device in these vehicles to cut costs. California lawsuit seeks compensation, fixes for Kia and Hyundai cars The lawsuit argues the plaintiffs overpaid for these vehicles because they were not aware they lacked engine immobilizers, making them more susceptible to thieves, and thus are owed financial compensation. The lawsuit also seeks the carmakers to take responsibility and install appropriate equipment to make them less susceptible to theft. According to the lawsuit, the impacted vehicles are Kia models from 2011-2021 and all Hyundai models from 2015-2021. The firm said individuals can still join the class action lawsuit. Participation is not limited to only those who have had their cars stolen but any Kia and Hyundai owner whose vehicle is susceptible to the theft demonstrated in the viral videos. Several lawsuits have been filed in recent weeks, including in federal courts in Ohio. In a statement to The Enquirer, Kia America said it is concerned about the increase in auto thefts of a subset of Kia vehicles. "It is unfortunate that criminals are using social media to target vehicles without engine immobilizers in a coordinated effort. All of our vehicles meet or exceed Federal Motor Vehicle Safety Standards. While no car can be made theft-proof, criminals are seeking vehicles solely equipped with a steel key and 'turn-to-start' ignition system. The majority of Kia vehicles in the United States are equipped with a key fob and 'push-button-to-start' system, making them more difficult to steal," the company said. The automaker said all 2022 Kia models and trims have an immobilizer applied either at the beginning of the model year or as a running change. Hyundai, Kia thefts happening nationwide Mason's Sorento was found abandoned about two miles away from her Pleasant Ridge home. Officers explained that based on how her vehicle was stolen, it was probably part of a TikTok trend targeting Hyundai and Kia vehicles. Detective Joseph Ruwe with the Delhi Township Police Department said what happened to Mason is all too common locally and across the country. Videos on social media show car thieves how to peel off the steering column of a Hyundai or Kia vehicle and use a USB cable to start the cars. When Mason's Kia was stolen, the thieves used a USB cable that was already inside her car. Ruwe said that most of the thefts are being carried out by teenagers between the ages of 14 and 19, and they'll even steal multiple cars a night in some cases. "They'll drive over in a stolen car, and then if they find another one, they'll park that one and then drive the new stolen car. Or if there are multiple people in the car, they'll take another, so each person has one," Ruwe said. Mason's Kia was in the shop for about 30 days. The parts needed to fix it were on back order due to the frequency of these thefts. Her insurance is helping with expenses, but it cost her a $1,000 deductible. She is still waiting for a new cover for her steering column, which may take weeks to get due to the high demand, so in the meantime, she'll have to drive with the wires hanging out. "It's heartbreaking because it's just a game to them. It's a challenge to see how many cars they can steal in one night. So they had a game at my expense," Mason said. "And it's still not over. I'm terrified it's just going to get stolen again. It could get stolen tomorrow, and I have no way to protect it." [GN] KOFFEE KUP: Judge Certifies Class Action Over WARN Violations ------------------------------------------------------------- Bob Audette, writing for Brattleboro Reformer, reports that a federal judge certified as a class action an employee lawsuit against the corporation that purchased the majority of the assets of Koffee Kup Bakery and then abruptly shuttered it and its affiliates in April 2021. "Plaintiffs Matthew Chaney, Nadine Miller, and Arthur Gustafson bring this action on behalf of themselves and a putative class alleging violations of the Worker Adjustment and Retraining Notification Act of 1988," wrote Judge William K. Sessions in a decision issued Aug. 17. "The WARN Act requires that before executing a plant closing or mass layoff, a covered employer [with more than 100 employees] must provide 60 days' written notice to employees. Plaintiffs allege that Defendants failed to provide the required notice." On April 26, 2021, Vermont Bread Company in Brattleboro, Superior Bakery in North Grosvenordale, Conn., and Koffee Kup Bakery in Burlington ceased operations. As a result, over 400 people lost their jobs, half of whom were employed in Vermont. "It is undisputed that at the time of the alleged WARN Act violations, those entities were wholly-owned subsidiaries of Kup Co.," wrote Sessions. "Plaintiffs claim that in the weeks prior to April 1, 2021, in anticipation of purchasing 80 percent of the [three companies] American Industrial Acquisition Corp. formed Koffee Kup Bakery Investment Company, LLC and Koffee Kup Bakery Holding Acquisition Company to hold its stock interests." The defendants argued that there was no single employer for all three companies and that they were not involved in the decision to close the bakeries, and therefore the suit should be brought by individual employees. The judge noted to be classified as a class action, a civil suit must meet four requirements -- there are too many employees to be named, the laws and facts of the case are common to all members, the claims are also common to all members and the plaintiffs are represented "fairly and adequately" by counsel. Reviewing all the facts before him, Sessions ruled that the lawsuit satisfied the four-factor test. "Whether Plaintiffs were employed by a single employer or by separate entities will be determined after discovery . . ." wrote Sessions. "For present purposes, the single employer question is a commonality that favors class certification. . . . While Defendants urge the Court to delay class certification, such a delay could give rise to due process concerns. Assuming a class is ultimately certified, members of the class are entitled to notice in the early stages of the proceeding." Sessions also acknowledged the contention from the dissolution receiver, Linda Joy Sullivan of Dorset, that a joint damages award "will complicate her task of determining the various corporate liabilities . . ." "It appears from the parties' briefing, however, that AIAC is the entity most likely to satisfy a judgment, thus alleviating concerns about conflicts of interest among workers from the three different bakery sites," noted Sessions. [GN] LEPRINO FOODS: Bid to Substitute Class Rep in Bates Suit Granted ---------------------------------------------------------------- In the case, CHARLES BATES, an individual, on behalf of himself and all members of the putative class, Plaintiff v. LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-100, inclusive, Defendants, Case No. 2:20-CV-00700-AWI-BAM (E.D. Cal.), Judge Anthony W. Ishii of the U.S. District Court for the Eastern District of California grants the Plaintiff's Motion to Substitute Class Representative and Amend the First Amended Complaint and denies the Defendants' Motion for Leave to File a Sur-reply. The Plaintiff initiated the underlying action by filing a Class Action Complaint in San Joaquin County Superior Court on Feb. 28, 2020. Defendants Leprino Foods Co. and Leprino Foods Dairy Products Co. (collectively, "Leprino") removed the matter to the Court, and filed a Motion to Dismiss the Complaint. The Plaintiff thereafter filed a First Amended Complaint which narrowed the scope of the lawsuit to the Defendants' facility in Tracy, California. After the Defendants filed a Motion to Dismiss Plaintiff's First Amended Complaint, the Court dismissed the Plaintiff's request for statutory penalties and restitution based on violations of California Labor Code Section 226. On Dec. 16, 2020, it issued a Preliminary Scheduling Order stating "All stipulated amendments or motions to amend will be filed by July 1, 2021." On Feb. 4, 2022, the Plaintiff filed a Motion for Class Certification naming Bates as the putative Class representative. Shortly thereafter the parties began discussions to schedule Bates' deposition. Bates was unable to provide an available deposition date because he allegedly "secured new employment with a strict schedule." On April 4, 2022, the Plaintiff filed the instant Motion to Substitute Class Representative, seeking to substitute Fred Walter in place of Bates and to amend the scheduling order by extending the Defendants' deadline to file an Opposition to the Plaintiff's class certification motion and, in turn, the Plaintiff's deadline to file a Reply to the Defendants' Opposition. On April 8, 2022, the Court found good cause to modify the Preliminary Scheduling Order and set the Defendants' Opposition deadline to 45 days from service of a ruling on the Plaintiff's Motion to Substitute Class Representatives, and the Plaintiff's Reply deadline to 90 days from the date of filing of the Defendants' Opposition. The Plaintiff argues that good cause exists to substitute Walter for Bates because Bates diligently sought substitution after he secured new employment and realized that his strict work schedule significantly limited his ability to serve as the putative class representative. Additionally, he contends that the substitution will not prejudice the Defendants, given that Walter's claims are identical to those of Bates and that Walter is willing to sit for another deposition to discuss his role as putative class representative. The Plaintiff also asserts he did not unduly delay his motion or file it in bad faith because the circumstances impeding his ability to represent the class were not apparent until a few weeks before he filed his motion. Furthermore, he contends that substitution would not be futile because Walter is a similarly situated class member as Bates and is equally capable of representing the class. Finally, he argues that judicial economy weighs in favor of granting substitution because if the Court denies substitution, then Walter will file a new class action involving the same claims, facts, and pleadings as the case, costing the Court and parties significant time, work, and money. The Defendants argue that substitution should be denied because the Plaintiff presented no evidence that substitution of a putative class representative is allowed before the class is certified and while a class certification motion is pending. Additionally, they assert that he failed to demonstrate good cause under Rule 16 because he did not act diligently in seeking the substitution and modification of the preliminary scheduling order. Furthermore, theys argue that they would be prejudiced if substitution is granted because they invested substantial time and effort preparing for issues particular to Bates and would have to undertake additional discovery and litigation costs to examine Walter as a putative class representative. The Defendants further contend that should the Court grant the Plaintiff's motion, the Court should (1) require him to pay for their reasonable expenses incurred in discovery relating to Bates and his deposition; (2) allow them to further depose Walter without it counting as an additional deposition against their 10 deposition limit under Rule 30(a)(2)(A)(i); (3) allow them up to an additional seven hours to take Walter's further deposition as to the claims and theories in the amended complaint, as well as his potential role as class representative; (4) require the Plaintiff to pay for their reasonable costs for the further deposition of Walter; and (5) if the Court grants class certification, determine that the class certification period ends on Aug. 29, 2022. To the extent the Defendants claim that courts in the Ninth Circuit generally deny motions to substitute a class representative when filed before the putative class is certified, Judge Ishii disagrees. Several courts in the Ninth Circuit have granted pre-certification motions to substitute putative class representatives. Therefore, to evaluate the merits of the Plaintiff's motion to substitute, he analyzes the motion under the Rule 15 and Rule 16 standards established by the Ninth Circuit. Judge Ishii finds that good cause exists under Rule 16 for Plaintiff to amend the operative complaint because the Plaintiff was diligent in bringing his motion to substitute. The record indicates that he filed his motion to substitute only several weeks after it became apparent that his new employment "significantly limited his time, including the time he can spend further pursuing this case." Furthermore, the record shows that he attempted for several weeks to secure a full day off of work so that he could testify in a deposition but was unable to do so without potential repercussions from his new employer. In light of these "reasons for seeking modification," the Plaintiff was diligent in bringing his instant motion to substitute. Given Rule 15's "very liberal" standard and purpose of "facilitating decision on the merits, rather than on the pleadings or technicalities," Judge Ishii grants the Plaintiff leave to amend the operative complaint to substitute Walter in for Bates. However, he also allows the Defendants to depose Walter up to an additional seven hours regarding his role as putative class representative without it counting as an additional deposition against their 10 deposition limit under Rule 30(a)(2)(A)(i). He also sets the class certification end period to Aug. 29, 2022, as agreed to by the Plaintiff, if the Court grants class certification. Accordingly, the Plaintiff's Motion to Substitute is granted and the Defendants' Motion for Leave to File a Sur-reply is denied. The Defendants' deadline to file an Opposition to Plaintiff's Motion for Class Certification is set to 45 days from the date of the Order. The Plaintiff's deadline to file a Reply to Defendants' Opposition is set to 90 days from the date of filing of the Defendants' Opposition. The Defendants may depose Walter up to an additional seven hours regarding his role as putative class representative and this deposition will not count as an additional deposition against their 10 deposition limit under Rule 30(a)(2)(A)(i). A full-text copy of the Court's Aug. 16, 2022 Order is available at https://tinyurl.com/rhsr83zx from Leagle.com. LLOYD J. AUSTIN: Schneider Files Suit in S.D. Texas --------------------------------------------------- A class action lawsuit has been filed against Lloyd J. Austin, III. The case is styled as Jason C. Schneider, Joseph F. Irwin, James Friedlein, Jason Weaver, Sean Hicks, Michael Robinson, James Armstrong, Michael Gaydeski, David R. Mendoza, James Walls, John Morris Pritchard, III, Connor Penn, Zachary Wales, Cameron Davies, individually and on behalf of all others similarly situated v. Lloyd J. Austin, III, in his official capacity as United States Secretary of Defense; United States Department Of Defense; Carlos Del Toro, in his official capacity as United States Secretary of the Navy; David H. Berger, Commandant of the United States Marine Corps; Case No. 3:22-cv-00293 (S.D. Tex., Aug. 18, 2022). The nature of suit is stated as Other Civil Rights. Lloyd James Austin III is a retired United States Army four-star general who, since his appointment on January 22, 2021, has served as the 28th United States secretary of defense.[BN] The Plaintiff is represented by: Kenneth Alan Klukowski, Esq. SCHAERR JAFFE LLP 1717 K St. NW, Suite 900 Washington, DC 20006 Phone: (202) 787-1060 Email: kklukowski@schaerr-jaffe.com LOTTERY.COM INC: Bids for Lead Plaintiff Appointment Due Oct. 18 ---------------------------------------------------------------- The law firm of Kirby McInerney LLP on Aug. 22 disclosed that a class action lawsuit has been filed in the U.S. District Court for the Southern District of New York on behalf of those who acquired Lottery.com, Inc. ("Lottery.com" or the "Company") (NASDAQ: LTRY) securities from November 15, 2021 through July 29, 2022, both dates inclusive (the "Class Period"). Investors have until October 18, 2022 to apply to the Court to be appointed as lead plaintiff in the lawsuit. Lottery.com operates as a lottery service company. As an independent third-party lottery game service, it develops and operates a platform which enables the remote purchase of legally sanctioned lottery games. On July 29, 2022, in a Form 8-K filed with the SEC, the Company informed the market that it did not have "sufficient financial resources to fund its operations or pay certain existing obligations," and that it therefore intended to furlough certain employees effective July 29, 2022. Moreover, because Lottery.com's resources were not sufficient to fund its operations for a twelve-month period, "there is substantial doubt about the Company's ability to continue as a going concern," and the Company may be forced to wind down its operations or pursue liquidation of the Company's assets. On this news, the price of Lottery.com shares declined by $0.52 per share, or approximately 64.2%, from $0.81 per share to close at $0.29 on July 29, 2022. The lawsuit alleges that, throughout the Class Period, Defendants made false and/or misleading statements and/or failed to disclose that, inter alia: (1) the Company lacked adequate internal accounting controls; (2) the Company lacked adequate internal controls over financial reporting, including but not limited to those pertaining to revenue recognition and the reporting of cash; (3) the Company was not in compliance with state and federal laws governing the sale of lottery tickets; and (4) as a result, the Company's public statements were materially false and misleading at all relevant times. If you purchased or otherwise acquired Lottery.com securities, have information, or would like to learn more about these claims, please contact Thomas W. Elrod of Kirby McInerney LLP by email at investigations@kmllp.com, or by filling out this contact form, to discuss your rights or interests with respect to these matters without any cost to you. Kirby McInerney LLP is a New York-based plaintiffs' law firm concentrating in securities, antitrust, whistleblower, and consumer litigation. The firm's efforts on behalf of shareholders in securities litigation have resulted in recoveries totaling billions of dollars. Additional information about the firm can be found at Kirby McInerney LLP's website: http://www.kmllp.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts: Kirby McInerney LLP Thomas W. Elrod, Esq. 212-371-6600 https://www.kmllp.com investigations@kmllp.com [GN] LOTTERY.COM: Gainey McKenna Reminds of Oct. 18 Lead Plaintiff Due ----------------------------------------------------------------- Gainey McKenna & Egleston on Aug. 23 disclosed that a class action lawsuit has been filed against Lottery.com, Inc. ("Lottery.com" or the "Company") (NASDAQ: LTRY, LTRYW) in the United States District Court for the Southern District of New York on behalf of investors who purchased or otherwise acquired Lottery.com common stock between November 15, 2021 and July 29, 2022, both dates inclusive (the "Class Period"). The Complaint allege that Defendants made false and/or misleading statements and/or failed to disclose material adverse facts about the Company's business operations and prospects. Specifically, defendants: (1) the Company lacked adequate internal accounting controls; (2) the Company lacked adequate internal controls over financial reporting, including but not limited to those pertaining to revenue recognition and the reporting of cash; (3) the Company was not in compliance with state and federal laws governing the sale of lottery tickets; and (4) as a result, the Company's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. Investors who purchased or otherwise acquired shares of Lottery.com should contact the Firm prior to the October 18, 2022 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com. Please visit our website at http://www.gme-law.comfor more information about the firm. [GN] LYONS MAGNUS: Katen Sues Over Misleading Product Label ------------------------------------------------------ Robert Katen, on behalf of himself and all others similarly situated, v. Lyons Magnus, LLC, Case No. 2:22-cv-14293-DMM (S.D. Fla., Aug. 17, 2022), is brought against the Defendant for the Defendant's failure to disclose in the products' label the presence of Cronobacter sakazakii and Clostridium botulinum. The Defendant's packaging notes that these products contain safe, quality ingredients that are suitable for consumption by vulnerable populations including young, old, and ill people. On July 28, 2022, the Defendant recalled a list of 53 of its products due to possible contamination with Cronobacter sakazakii. While infection related to Cronobacter is rare, the common symptoms of illness could include fever, vomiting and urinary tract infection." The Defendant manufactured, sold and distributed Recalled Products, including: Lyons Ready Care, Lyons Barista Style, Pirq, Glucerna, Aloha Protein Powder, Intelligentsia, Kate Farms, Oatly, Premier Protein, MRE, Stumptown Cold Brew Coffee, Imperial, and Thick/Nectar Consistency Dairy Drink. Several of the Defendant's Recalled Products have been shown to be adulterated with Cronobacter sakazakii and Clostridium botulinum. The presence of Cronobacter sakazakii and Clostridium botulinum in Defendant's Recalled Products was not disclosed in the products' label, in violation of state and federal law. The Defendant failed to take adequate, reasonable measures to protect the health and lives of people consuming its products, says the complaint. The Plaintiff purchased Defendant's Recalled Products. Lyons Magnus, LLC is a food service corporation.[BN] The Plaintiff is represented by: Bryan F. Aylstock, Esq. E. Samuel Geisler, Esq. Caitlyn Prichard Miller, Esq. AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC 17 East Main Street, Suite 200 Pensacola, FL 32502 Phone: (850) 202-1010 Email: baylstock@awkolaw.com sgeisler@awkolaw.com cmiller@awkolaw.com - and - Kiley Grombacher, Esq. Marcus J. Bradley, Esq. Lirit A. King, Esq. BRADLEY/GROMBACHER LLP 31365 Oak Crest Dr., Suite 240 Westlake Village, CA 9136 Phone: (805) 270-7100 Facsimile: (805) 270-7589 Email: kgrombacher@bradleygrombacher.com mbradely@bradleygrombacher.com lking@bradleygrombacher.com MAJESTIC CARE STAFF: Joseph Files FLSA Suit in S.D. Indiana ----------------------------------------------------------- A class action lawsuit has been filed against Majestic Care Staff LLC, et al. The case is styled as Teresa Joseph, on behalf of herself and those similarly situated v. Majestic Care Staff LLC, Majestic Care Staff Holdings LLC, Case No. 1:22-cv-01631-TWP-TAB (S.D. Ind., Aug. 17, 2022). The lawsuit is brought over alleged violation of the Fair Labor Standards Act. Majestic Care -- https://www.majesticcare.com/ -- provides community-based senior care throughout Indiana, Ohio and Michigan.[BN] The Plaintiff is represented by: Robert Peter Kondras, Jr., Esq. HASSLER KONDRAS MILLER LLP 100 Cherry Street Terre Haute, IN 47807 Phone: (812) 232-9691 Fax: (812) 234-2881 Email: kondras@hkmlawfirm.com MALLINCKRODT ARD: MSP Granted Leave to File Third Amended Complaint ------------------------------------------------------------------- In the case, MSP Recovery Claims, Series LLC, et al., Plaintiffs v. Mallinckrodt ARD, Inc., et al., Defendants, Case No. 3:20-cv-50056 (N.D. Ill.), Magistrate Judge Lisa A. Jensen of the U.S. District Court for the Northern District of Illinois, Western Division, grants the Plaintiffs' motion for leave to file a third amended complaint and to substitute plaintiffs. The instant action arises out of allegations by Plaintiffs MSP Recovery Claims, Series LLC; MAO-MSO Recovery, II, LLC, Series PMPI; and MSPA Claims 1, LLC that Mallinckrodt ARD, Inc. and Mallinckrodt PLC ("Mallinckrodt Defendants") and Express Scripts, Inc.; Express Scripts Holding Company; Curascript, Inc.; and United Biosource Corp. have violated various federal and state antitrust statutes and consumer protection laws by artificially inflating the price of the drug Acthar. As a result, the Plaintiffs allege that certain third-party payors that provide Medicare benefits to their beneficiaries were forced to pay inflated prices for Acthar. Various of these third-party payors have assigned their rights to recover for this alleged overpayment to them. The Plaintiffs initially filed the class action in the Central District of California on Oct. 30, 2017. The case was transferred to the Northern District of Illinois on Jan. 18, 2018. The case was consolidated for discovery purposes with City of Rockford v. Mallinckrodt ARD, Inc., No. 3:17-cv-50107 (N.D. Ill.). On Jan. 25, 2019, the District Court (Judge Frederick J. Kapala) dismissed the Plaintiffs' initial complaint without prejudice for failing to adequately plead prudential standing and antitrust standing (MSP Recovery Claims I). The Plaintiffs filed their First Amended Complaint ("FAC") on April 10, 2019. The District Court (Judge John Z. Lee) dismissed the FAC without prejudice on March 23, 2020, finding that the Plaintiffs had adequately pled prudential standing but not antitrust standing (MSP Recovery Claims II). The Plaintiffs filed their Second Amended Complaint ("SAC"), currently the operative complaint, on July 2, 2020. All Defendants moved to dismiss the SAC on Aug. 14, 2020, and the motions were fully briefed. Two days before briefing was completed, however, the Mallinckrodt Defendants filed a suggestion of bankruptcy. The motions to dismiss were stricken and the case against all Defendants was stayed pending resolution of the Mallinckrodt Defendants' bankruptcy proceedings. The Plaintiffs filed the instant motion to amend their complaint the same day the stay was lifted. The Proposed Third Amended Complaint ("TAC") would, among other things, replace the named Plaintiffs with different series of unnamed class members ("Substitute Plaintiffs"), withdraw all claims against the Mallinckrodt Defendants, and add a new defendant, Accredo Health Group, Inc. The Defendants oppose the motion on several grounds. The Plaintiffs filed a reply brief, and the Defendants filed a sur-reply with the Court's leave. The Defendants raise concerns of undue delay, undue prejudice, and futility. They also argue that the TAC inappropriately attempts to "cure a standing defect by substituting unnamed putative class members as named representatives before the court certifies a class." According to them, it is black-letter law in the Seventh Circuit that substitution is not permitted to breathe life into a lawsuit where a plaintiff never had standing to bring his lawsuit in the first place, citing Walters v. Edgar, 163 F.3d 430, 432-33 (7th Cir. 1998). Because this issue potentially implicates subject matter jurisdiction, Judge Jensen addresses it first. Judge Jensen finds that the Defendants challenged the Plaintiffs' constitutional standing under both the initial complaint and the FAC, but neither Judge Kapala nor Judge Lee held that the Plaintiffs lacked constitutional standing. Judge Lee found that the FAC cured this pleading deficiency and thus the Plaintiffs had adequately pled prudential standing. In finding that the Plaintiffs had adequately pled prudential standing, Judge Lee necessarily found they had adequately pled constitutional standing. The Plaintiffs argue that unlike Walter, they had standing when the suit was filed, and more specifically that Walters does not apply to antitrust standing. The Plaintiffs have the better of this argument, Judge Jensen opines. Viewed as a whole, Walters clearly addresses constitutional standing, speaking only in terms of jurisdiction. Judge Lee did not rule that the Plaintiffs had no constitutional or prudential standing, but rather that their FAC failed to plead antitrust standing. Because antitrust standing is not jurisdictional, this is not a case where the Court lacked jurisdiction over the Plaintiffs' claims when they filed suit. In short, Walters does not apply. Because there is no jurisdictional hurdle to this "routine" request to substitute plaintiffs, Judge Jensen addresses the Defendants' remaining contentions. The Defendants raise concerns that the Plaintiffs unduly delayed in filing the TAC, specifically arguing that the information contained in the TAC was known to the Plaintiffs much earlier. The Plaintiffs counter that they filed their TAC the same day this Court lifted the bankruptcy stay so there is no undue delay. Their argument ignores the fact that prior to the bankruptcy stay, they had over seven months after Judge Lee dismissed the FAC in which to raise the factual matter and new parties contained in the TAC, Judge Jensen holds. She says, their explanation seems to be that additional information was acquired during the bankruptcy stay and that one of the new assignors, AvMed, did not assign its claims until 2022 and thus the TAC could not be filed before that time. Recent discovery of new information generally negates a contention of undue delay. Moreover, because the Defendants' Motion to Dismiss the SAC was stricken in light of the bankruptcy stay, it is not clear the case would be any further along even if the new facts had been included in the SAC. Nonetheless, delay, in the absence of prejudice is not enough to warrant denial of a motion to amend. Thus, Judge Jensen proceeds to analyze whether allowing the TAC unduly prejudices the Defendants. The Defendants argue that allowing the filing of the TAC will unduly prejudice their case by forcing them to address new allegations and engage in further costly discovery. They also note that only two months of discovery remained when the case was stayed in 2020. Judge Jensen finds that there is no operative fact discovery cutoff and thus any undue prejudice based on an impending fact discovery cutoff does not apply. The Defendants' argument that any required additional discovery will be "expensive and time-consuming" are conclusory, especially given that consolidated discovery is proceeding against them and Accredo in the City of Rockford case. Moreover, while the Defendants identify several new topics of discovery that will be required if the TAC is allowed, the Plaintiffs point out that most if not all of those topics of discovery have already been pursued in this or the consolidated case. For these reasons, Judge Jensen does not find that allowing the filing of the TAC will be unduly prejudicial to the Defendants. Finally, the Defendants argue that the TAC suffers from the same fatal flaws as the Plaintiffs' previous complaints, so amendment and substitution are futile. They ask the Court to deny the Plaintiffs leave to file the TAC and reinstate their fully briefed Motion to Dismiss the SAC. Thus, if the Court rules on their futility arguments, which they argue raise the same issues as in the fully briefed Motion to Dismiss the SAC, there could well be two separate opinions by two separate judges on what Defendants claim are the same issues. Judge Jensen says courts around the country have routinely held that it is within the court's discretion to decline to engage in a futility analysis in the context of a motion to amend, particularly when the futility arguments are duplicative of arguments raised in a motion to dismiss. Likewise, the present Court, in the interest of judicial economy, declines to engage in a futility analysis. If it were to deny leave to amend based on futility and reinstate the Defendants' Motion to Dismiss the SAC (as the Defendants request), the District Judge would still have to rule on the same arguments presented. It would be a better use of judicial resources for all arguments concerning the dismissal of the Plaintiffs' claims to be presented to the District Judge at the same time. In light of the foregoing, Judge Jensen grants the Plaintiffs' motion. A full-text copy of the Court's Aug. 16, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/2rc8tvx4 from Leagle.com. MARMON HOLDINGS: Lard Sues for Breach of Fiduciary Duties --------------------------------------------------------- JENNIFER R. LARD, JOHN G. JUERGENS, GERALD L. ROBINSON, SCOTT W. ANDERSON, THOMAS A. PITERA, SHARON BRADLEY-SMITH and TORANZ J. PLUMMER, individually and on behalf of all others similarly situated, Plaintiffs v. MARMON HOLDINGS, INC., THE BOARD OF DIRECTORS OF MARMON HOLDINGS, INC., MARMON RETIREMENT ADMINISTRATIVE COMMITTEE and JOHN DOES 1-30, Defendants, Case No. 1:22-cv-04332 (N.D. Ill., Aug. 16, 2022) is a class action brought pursuant to the Employee Retirement Income Security Act against the Marmon Employees' Retirement Plan's fiduciaries, which include Marmon Holdings, Inc., the Board of Directors of Marmon Holdings, Inc., and its members during the Class Period, and the Marmon Retirement Administrative Committee and its members during the Class Period for breaches of their fiduciary duties. The Plaintiffs allege that during the putative Class Period, Defendants, as "fiduciaries" of the Marmon Employees' Retirement Plan, as that term is defined under ERISA, breached the duties they owed to the Plan, to Plaintiffs, and to the other participants of the Plan by, inter alia, (1) failing to objectively and adequately review the Plan's investment portfolio with due care to ensure that each investment option was prudent, in terms of cost; and (2) maintaining certain funds in the Plan despite the availability of identical or similar investment options with lower costs and/or better performance histories; and (3) failing to control the Plan's administrative and recordkeeping costs. The Defendants' mismanagement of the Plan, to the detriment of participants and beneficiaries, constitutes a breach of the fiduciary duty of prudence, in violation of 29 U.S.C. Section 1104. Their actions were contrary to actions of a reasonable fiduciary and cost the Plan and its participants millions of dollars, the suit alleges. The Plaintiffs participated in the Plan investing in the options offered by the Plan during their employment and were subject to the excessive recordkeeping costs alleged herein. Marmon Holdings, Inc. is the sponsor of the Plan and a named fiduciary of the Plan with a principal place of business in Chicago, Illinois.[BN] The Plaintiffs are represented by: Donald R. Reavey, Esq. CAPOZZI ADLER, P.C. 2933 North Front Street Harrisburg, PA 17110 Telephone: (717) 233-4101 Facsimile: (717) 233-4103 E-mail: donr@capozziadler.com - and - Mark K. Gyandoh, Esq. Gabrielle Kelerchian, Esq. CAPOZZI ADLER, P.C. 312 Old Lancaster Road Merion Station, PA 19066 Telephone: (610) 890-0200 Facsimile: (717) 233-4103 E-mail: markg@capozziadler.com gabriellek@capozziadler.com MARYMOUNT MANHATTAN: Marano Sues Over Failure to Secure PII ----------------------------------------------------------- Lucia Marano, on behalf of herself and all others similarly situated v. MARYMOUNT MANHATTAN COLLEGE, Case No. 1:22-cv-07027 (S.D.N.Y., Aug. 17, 2022), is brought against the Defendant for its failure to properly secure and safeguard personal identifiable information ("PII") for past and current students, employees, parents, and applicants to Defendant, including, but not limited to, student ID, date of birth, Social Security Number, employee ID, payment and credit card information, and some other types of information. On November 12, 2021, Defendant learned of a network disruption on its network (the "Data Breach"). On August 3, 2022, the Defendant began notifying various states Attorneys General of the Data Breach. On August 3, 2022, the Defendant began notifying the Plaintiff and Class Members of the Data Breach. By obtaining, collecting, using, and deriving a benefit from the PII of Plaintiff and Class Members, Defendant assumed legal and equitable duties to those individuals to protect and safeguard that information from unauthorized access and intrusion. The Defendant admits that the unencrypted PII obtained by an unknown actor included student ID, date of birth, Social Security Number, employee ID, payment and credit card information, and some other types of information. The exposed PII of the Plaintiff and Class Members can be sold on the dark web. Hackers can access and then offer for sale the unencrypted, unredacted PII to criminals. The Plaintiff and Class Members now face a lifetime risk of (i) identity theft, which is heightened here by the loss of Social Security numbers, and (ii) the sharing and detrimental use of their sensitive information. The PII was compromised due to the Defendant's negligent and/or careless acts and omissions and the failure to protect the PII of the Plaintiff and Class Members. In addition to the Defendant's failure to prevent the Data Breach, the Defendant waited several months after the Data Breach occurred to report it to the states' Attorneys General and affected individuals. The Defendant has also purposefully maintained secret the specific vulnerabilities and root causes of the breach and has not informed Plaintiff and Class Members of that information. As a result of this delayed response, the Plaintiff had no idea their PII had been compromised, and that they were, and continue to be, at significant risk of identity theft and various other forms of personal, social, and financial harm, including the sharing and detrimental use of their sensitive information. The risk will remain for their respective lifetimes, says the complaint. The Plaintiff was a student at Defendant from 1995 to 2000. The Defendant is a New York Education Corporation.[BN] The Plaintiff is a represented by: Jonathan M. Sedgh, Esq. MORGAN & MORGAN 850 3rd Ave, Suite 402 Brooklyn, NY 11232 Phone: (212) 738-6839 Fax: (813) 222-2439 Email: jsedgh@forthepeople.com - and - John A. Yanchunis, Esq. Ryan D. Maxey, Esq. MORGAN & MORGAN COMPLEX BUSINESS DIVISION 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Phone: (813) 223-5505 Email: jyanchunis@ForThePeople.com rmaxey@ForThePeople.com MCKENZIE BREW: Fails to Pay Proper Wages, Carrozza Suit Alleges --------------------------------------------------------------- CHANTAL CARROZZA, individually and on behalf of all others similarly situated, Plaintiff v. MCKENZIE BREW HOUSE, INC.; MCKBH, INC.; BKBC, INC.; WILLIAM MANGAN; and DOE DEFENDANTS 1-10, Defendants, Case No. 2:22-cv-03291-HB (E.D. Pa., Aug. 18, 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 Carrozza was employed by the Defendants as bartender. MCKENZIE BREW HOUSE, INC. is a restaurant, brewery and night spot serving up fresh, upscale cuisine; creative, hand-crafted brews; and fun at its three locations in Pennsylvania. [BN] The Plaintiff is represented by: Gerald D. Wells, III, Esq. Robert J. Gray, Esq. CONNOLLY WELLS & GRAY, LLP 101 Lindenwood Drive, Suite 225 Malvern, PA 19355 Telephone: (610) 822-3700 Facsimile: (610) 822-3800 Email: gwells@cwglaw.com rgray@cwglaw.com MDL 2873: Rickey Suit Claims PFAS Exposure From AFFF Products ------------------------------------------------------------- SCOTT RICKEY, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA USS. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.,; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-02739-RMG (D.S.C., Aug. 16, 2022) is a class action brought by the Plaintiff and those similarly situated individuals seeking 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). According to the complaint, the Defendants have failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of AFFF products containing synthetic, toxic PFAS. The Defendants' AFFF products are dangerous to human health because PFAS are highly toxic and carcinogenic chemicals and can accumulate in the blood and body of exposed individuals. The Defendants have also failed to warn public entities and firefighter trainees who they knew would foreseeably come into contact with their AFFF products. The Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition due to inadequate warning about the products' danger. He relied on the Defendants' instructions as to the proper handling of the products, says the suit. As a result of the alleged exposure to the Defendants' AFFF products, the Plaintiff was diagnosed with prostate cancer, alleges the suit. The Rickey case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul, Minnesota.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Telephone: (631) 600-0000 Facsimile: (631) 543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 MDL 2873: Savage Suit Claims PFAS Exposure From AFFF Products ------------------------------------------------------------- BURTON SAVAGE, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA USS. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.,; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-02733-RMG (D.S.C., Aug. 15, 2022) is a class action brought by the Plaintiff and those similarly situated individuals seeking 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). According to the complaint, the Defendants have failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of AFFF products containing synthetic, toxic PFAS. The Defendants' AFFF products are dangerous to human health because PFAS are highly toxic and carcinogenic chemicals and can accumulate in the blood and body of exposed individuals. The Defendants have also failed to warn public entities and firefighter trainees who they knew would foreseeably come into contact with their AFFF products. The Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition due to inadequate warning about the products' danger. He relied on the Defendants' instructions as to the proper handling of the products, says the suit. As a result of the alleged exposure to the Defendants' AFFF products, the Plaintiff was diagnosed with prostate cancer, alleges the suit. The Savage case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul, Minnesota.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Telephone: (631) 600-0000 Facsimile: (631) 543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 MDL 2873: Stevenson Suit Claims PFAS Exposure From AFFF Products ---------------------------------------------------------------- TYRONE STEVENSON, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA USS. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.,; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-02738-RMG (D.S.C., Aug. 16, 2022) is a class action brought by the Plaintiff and those similarly situated individuals seeking 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). According to the complaint, the Defendants have failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of AFFF products containing synthetic, toxic PFAS. The Defendants' AFFF products are dangerous to human health because PFAS are highly toxic and carcinogenic chemicals and can accumulate in the blood and body of exposed individuals. The Defendants have also failed to warn public entities and firefighter trainees who they knew would foreseeably come into contact with their AFFF products. The Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition due to inadequate warning about the products' danger. He relied on the Defendants' instructions as to the proper handling of the products, says the suit. As a result of the alleged exposure to the Defendants' AFFF products, the Plaintiff was diagnosed with prostate cancer, alleges the suit. The Stevenson case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul, Minnesota.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Telephone: (631) 600-0000 Facsimile: (631) 543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 MDL 2873: Suarez Alleges Injury From Exposure to Toxic PFAS ----------------------------------------------------------- ALEXIS SUAREZ and IRENE OLIVEROS, his wife, Plaintiffs v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS INC,; AMEREX CORPORATION; ARCHROMA USS., INC.; ARKEMA, INC.; BUCK EYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC,.; CHEMGUARD, INC,; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC. DEEPWATER CHEMICALS INC,; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC,;) DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDIE-FENWAL, INC.; KIDDIE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC,; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as Successor-in-interest to the Ansul Company; UNITED TECHNOLOGIES CORPORATION UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.); and ABC CORPORATIONS (1-50), Defendants, Case No. 2:22-cv-02730-RMG (D.S.C., Aug. 15, 2022) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, and wantonness. The case arises from severe personal injuries sustained by the Plaintiff as a result of his exposure to the Defendants' aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of their PFAS-containing AFFF products and also failed to warn public entities and civilian firefighters, including the Plaintiff, who they knew would foreseeably come into contact with their AFFF products that use of and/or exposure to the products would pose a danger to human health. Plaintiff Suarez was diagnosed with Non-Hodgkin's lymphoma and/or other medical conditions as a result of exposure to Defendants' AFFF products, the suit alleges. The Suarez case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul, Minnesota.[BN] The Plaintiff is represented by: Stephen T. Sullivan, Jr., Esq. John E. Keefe, Jr., Esq. WILENTZ, GOLDMAN & SPITZER P.A. 125 Half Mile Road, Suite 100 Red Bank, NJ 07701 Telephone: (732) 855-6060 Facsimile: (732) 726-4860 MDL 2873: Watkins Suit Claims PFAS Exposure From AFFF Products -------------------------------------------------------------- MARK WATKINS, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA USS. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.,; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-02737-RMG (D.S.C., Aug. 16, 2022) is a class action brought by the Plaintiff and those similarly situated individuals seeking 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). According to the complaint, the Defendants have failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of AFFF products containing synthetic, toxic PFAS. The Defendants' AFFF products are dangerous to human health because PFAS are highly toxic and carcinogenic chemicals and can accumulate in the blood and body of exposed individuals. The Defendants have also failed to warn public entities and firefighter trainees who they knew would foreseeably come into contact with their AFFF products. The Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition due to inadequate warning about the products' danger. He relied on the Defendants' instructions as to the proper handling of the products, says the suit. As a result of the alleged exposure to the Defendants' AFFF products, the Plaintiff was diagnosed with prostate cancer, alleges the suit. The Watkins case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul, Minnesota.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Telephone: (631) 600-0000 Facsimile: (631) 543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 MDL 2873: Weiss Alleges Injury From Exposure to Toxic PFAS ---------------------------------------------------------- HANNS WEISS, Plaintiffs v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS INC,; AMEREX CORPORATION; ARCHROMA USS., INC.; ARKEMA, INC.; BUCK EYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC,.; CHEMGUARD, INC,; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC. DEEPWATER CHEMICALS INC,; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC,;) DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDIE-FENWAL, INC.; KIDDIE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC,; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as Successor-in-interest to the Ansul Company; UNITED TECHNOLOGIES CORPORATION UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.); and ABC CORPORATIONS (1-50), Defendants, Case No. 2:22-cv-02731-RMG (D.S.C., Aug. 15, 2022) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, and wantonness. The case arises from severe personal injuries sustained by the Plaintiff as a result of his exposure to the Defendants' aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of their PFAS-containing AFFF products and also failed to warn public entities and civilian firefighters, including the Plaintiff, who they knew would foreseeably come into contact with their AFFF products that use of and/or exposure to the products would pose a danger to human health. The Plaintiff was diagnosed with prostate cancer, and/or other medical conditions, as a result of exposure to Defendants' AFFF products, the suit alleges. The Weiss case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul, Minnesota.[BN] The Plaintiff is represented by: Stephen T. Sullivan, Jr., Esq. John E. Keefe, Jr., Esq. WILENTZ, GOLDMAN & SPITZER P.A. 125 Half Mile Road, Suite 100 Red Bank, NJ 07701 Telephone: (732) 855-6060 Facsimile: (732) 726-4860 MDL 2873: Woods Suit Claims PFAS Exposure From AFFF Products ------------------------------------------------------------ WILLIAM WOODS, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA USS. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.,; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-02735-RMG (D.S.C., Aug. 15, 2022) is a class action brought by the Plaintiff and those similarly situated individuals seeking 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). According to the complaint, the Defendants have failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of AFFF products containing synthetic, toxic PFAS. The Defendants' AFFF products are dangerous to human health because PFAS are highly toxic and carcinogenic chemicals and can accumulate in the blood and body of exposed individuals. The Defendants have also failed to warn public entities and firefighter trainees who they knew would foreseeably come into contact with their AFFF products. The Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition due to inadequate warning about the products' danger. He relied on the Defendants' instructions as to the proper handling of the products, says the suit. As a result of the alleged exposure to the Defendants' AFFF products, the Plaintiff was diagnosed with colorectal cancer, alleges the suit. The Woods case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul, Minnesota.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Telephone: (631) 600-0000 Facsimile: (631) 543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 MEMPHIS, TN: DNA Rape Kits Class Action Hearing Set Oct. 20-21 -------------------------------------------------------------- Shyra Sherfield, writing for Action News 5, reports that a Shelby County Circuit Court judge will hold the final hearing for a years-long fight between rape victims and the City of Memphis. Judge Gina Higgins, the presiding judge over Janet Doe v. The City of Memphis, was originally scheduled for its last hearing on Aug. 25-26, but is postponed to Oct. 20-21. Attorney Gary Smith's jury trial has run over, and the court allowed parties to reschedule. Janet Doe v. The City of Memphis is a class action lawsuit to determine if the city is liable for failing to test over 12,000 DNA rape kits. Lawyers Daniel Lofton and Gary K. Smith announced on Aug. 22 they plan to ask the court to enter an order determining the city is liable ahead of the trial. Their release says this is, "due to the uncontradicted evidence that the Tenn. Bureau of Investigation mandated the testing of no-suspect rape kits in 2003 and the city failed to act accordingly." The announcement goes on to say the county argues there was no protocol for testing DNA rape kits for evidence until 2016 leaving the survivors waiting for years on a ruling. The hearings will start at 9:30 a.m. [GN] MESOBLAST LIMITED: Court OK's Plan of Allocation in Kristal Suit ---------------------------------------------------------------- Judge Philip M. Halpern of the U.S. District Court for the Southern District of New York approves the Plan of Allocation relating to the settlement of the lawsuit captioned IRENE KRISTAL, Individually and on behalf of all others similarly situated, Plaintiff v. MESOBLAST LIMITED, SILVIU ITESCU, JOSH MUNTNER, and FRED GROSSMAN, Defendants, Case No. 7:20-CV-08430-PMH (S.D.N.Y.). Lead Plaintiff Frank Fayz and Named Plaintiff David Caudle, on behalf of themselves and the Settlement Class, and Defendant Mesoblast Limited, and Individual Defendants Silviu Itescu, Josh Muntner, and Fred Grossman, have entered into a Stipulation and Agreement of Settlement dated March 28, 2022, that provides for a complete dismissal with prejudice of the claims asserted against the Defendants in the Action on the terms and conditions set forth in the Stipulation, subject to the approval of the Court. Judge Halpern notes that the Order Approving Plan of Allocation incorporates by reference the definitions in the Stipulation, and, unless otherwise defined, all capitalized terms used, but not defined, will have the same meanings as in the Stipulation; and the Court's April 8, 2022 Order Preliminarily Approving Proposed Settlement. Due and adequate notice has been provided to the Settlement Class. The Court conducted a hearing on Aug. 15, 2022 (the "Final Approval Hearing") to consider, among other things, whether to approve the Plan of Allocation. The Court finds that it has jurisdiction: (i) to enter the Order approving Plan of Allocation; and (ii) over the subject matter of the Action, all matters relating to the Settlement, and over all parties to the Action, including all Settlement Class Members. The Court also finds and concludes that the formula for the calculation of the claims of Authorized Claimants which is set forth in the Notice of: (I) Pendency of Class Action and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses (the Long Notice) disseminated to Settlement Class Members, provides a fair and reasonable basis upon which to allocate the proceeds of the Net Settlement Fund established by the Stipulation among Settlement Class Members, with due consideration having been given to administrative convenience and necessity. The Court further finds and concludes that the Plan of Allocation set forth in the Long Notice is, in all respects, fair, reasonable and adequate, and the Court approves the Plan of Allocation. A full-text copy of the Court's Order dated Aug. 15, 2022, is available at https://tinyurl.com/3vdb7p63 from Leagle.com. METALTEK INTERNATIONAL: Herman Sues Over Unpaid Overtime Wages -------------------------------------------------------------- Keith Herman, on behalf of himself and those similarly situated v. METALTEK INTERNATIONAL, INC., Case No. 3:22-cv-01476 (N.D. Ohio, Aug. 17, 2022), is brought against the Defendant for its failure to pay employees all overtime wages, seeking all available relief under the Fair Labor Standards Act of 1938 ("FLSA"), the Ohio Minimum Fair Wage Standards Act ("the Ohio Wage Act"), and the Ohio Prompt Pay Act ("OPPA"). The Defendant applied or caused to be applied substantially the same employment policies, practices, and procedures to all employees at all of its locations, including policies, practices, and procedures relating to the payment of wages, overtime, and timekeeping. The Defendant maintained control, oversight, and direction over the Plaintiff, including the promulgation and enforcement of policies affecting the payment of wages and overtime, says the complaint. The Plaintiff was employed by MetalTek as a machine operator. MetalTek is a metal products enterprise that manufactures, develops, and fabricates metal castings, combining metal casting, heat treatment, metal machining, and/or metal fabrication, for wear, high temperature, and corrosive applications.[BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. Kelsie N. Hendren, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Rd., Suite #126 Columbus, OH 43220 Phone: (614) 949-1181 Facsimile: (614) 386-9964 Email: mcoffman@mcoffmanlegal.com khendren@mcoffmanlegal.com - and - Daniel I. Bryant, Esq. BRYANT LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Phone: (614) 704-0546 Facsimile: (614) 573-9826 Email: dbryant@bryantlegalllc.com - and - Matthew B. Bryant, Esq. 3450 W Central Ave., Suite 370 Toledo, OH 43606 Phone: (419) 824-4439 Facsimile: (419) 932-6719 Email: Mbryant@bryantlegalllc.com MICHIGAN STATE UNIVERSITY: Files Writ of Certiorari in Balow Suit ----------------------------------------------------------------- MICHIGAN STATE UNIVERSITY filed on July 29, 2022, a petition for writ of certiorari -- which was assigned case number 22-93 -- asking the U.S. Supreme Court to review the judgment of the United States Court of Appeals for the Sixth Circuit in the case captioned Michigan State University, et al., Petitioners vs. Sophia Balow, et al., Case No. 21-1183. The Plaintiffs, on behalf of themselves and similarly situated members of Michigan State University's women's swimming-and-diving team, brought this class action suit against the Defendants for alleged violation of Title IX of the Education Amendments of 1972 by the university's elimination of its men's and women's swimming-and diving teams. The case is styled Sophia Balow, et al., Plaintiffs, v. Michigan State University, et al., Defendants, Case No. 1:21-cv-44. The U.S. District Court for the Western District of Michigan denied the Plaintiffs' motion for a preliminary injunction preventing the elimination of the women's swimming-and-diving team after finding that the Plaintiffs had not established a likelihood of success on the merits. On February 1, 2022, the United States Court of Appeals for the Sixth Circuit issued its decision reversing the district court's denial of a preliminary injunction. The Sixth Circuit held that the district court erred by reasoning that participation gaps that are lower than two percent satisfy substantial proportionality. According to the Sixth Circuit, the ultimate focus of the inquiry should be on the numerical participation gap, rather than a percentage-based inquiry. Thus, a school may fail to achieve substantial proportionality even if its participation gap is only a small percentage of the size of its athletic program. The Sixth Circuit further determined that athletic opportunities are substantially proportionate under Title IX only when the participation gap at a school is so small that the number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team. The Defendants filed a petition for rehearing en banc, which the Sixth Circuit denied on March 31, 2022. [BN] Defendants-Petitioners Michigan State University, et al., are represented by: Gregory George Garre, Esq. LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 E-mail: gregory.garre@lw.com MINISO GROUP: RM Law Reminds of Oct. 17 Lead Plaintiff Deadline --------------------------------------------------------------- RM LAW, P.C. on Aug. 23 that a class action lawsuit has been filed on behalf of all persons or entities that purchased MINISO Group Holding Limited. ("MINISO" or the "Company") (NYSE: MNSO) pursuant or traceable to the Company's October 2020 initial public offering ("IPO"). MINISO shareholders may, no later than October 17, 2022, move the Court for appointment as a lead plaintiff of the Class. If you purchased shares of MINISO and would like to learn more about these claims or if you wish to discuss these matters and have any questions concerning this announcement or your rights, contact Richard A. Maniskas, Esquire toll-free at (844) 291-9299 or to sign up online, click here. The class action lawsuit alleges that the IPO's Registration Statement was false and/or misleading and/or failed to disclose that: (i) defendants and other undisclosed related parties owned and controlled a much larger amount of MINISO stores than previously stated; (ii) as a result, MINISO concealed its true costs; (iii) MINISO did not represent its true business model; (iv) defendants, including MINISO and its Chairman, engaged in planned unusual and unclear transactions; (v) as a result of at least one of these transactions, MINISO is at risk of breaching contracts with PRC authorities; and (vi) MINISO would imminently and drastically drop its franchise fees. On July 26, 2022, market researcher Blue Orca Capital published a report on MINISO, which alleged several issues with the Company, including that (i) MINISO's stores are secretly owned by Company executives or insiders closely connected to the chairman, and (ii) overwhelming evidence shows that MINISO misleads the market about its core business. Blue Orca explained, "[o]ur suspicion is that MINISO realized early in the pre-IPO process that a brick-and-mortar retailer would be far less attractive to investors than an asset-light franchise business, so we think that [MINISO] simply lied about these stores." Blue Orca added its belief "that the chairman siphoned hundreds of millions from the public company through opaque Caribbean jurisdictions as the middleman in a crooked headquarters deal." Blue Orca further concluded that "[i]ndependent evidence, including archived disclosures on MINISO's Chinese website, reports in Chinese media and interviews with former employees, indicate that MINISO is a brand in serious peril," noting that "MINISO lowered its franchising fee by 63% over the past two years in a desperate effort to attract franchisees." On this news, MINISO's ADS price fell nearly 15%. As of July 27, 2022, MINISO ADSs closed at $5.66 per ADS, representing more than a 70% decline from the $20.00 IPO price. If you are a member of the class, you may, no later than October 17, 2022, request that the Court appoint you as lead plaintiff of the class. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as "lead plaintiff." Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain RM LAW, P.C. or other counsel of your choice, to serve as your counsel in this action. For more information regarding this, please contact RM LAW, P.C. (Richard A. Maniskas, Esquire) toll-free at (844) 291-9299 or by email at rm@maniskas.com or click here. For more information about class action cases in general or to learn more about RM LAW, P.C. please visit our website by clicking here. RM LAW, P.C. is a national shareholder litigation firm. RM LAW, P.C. is devoted to protecting the interests of individual and institutional investors in shareholder actions in state and federal courts nationwide. CONTACT: RM LAW, P.C. Richard A. Maniskas, Esquire 1055 Westlakes Dr., Ste. 300 Berwyn, PA 19312 484-324-6800 844-291-9299 rm@maniskas.com [GN] MOBILE FIDELITY: Stiles Sues Over Unfair and Deceptive Practices ---------------------------------------------------------------- Adam Stiles, individually and on behalf of all others similarly situated v. MOBILE FIDELITY SOUND LAB, INC., Case No. 1:22-cv-04405 (N.D. Ill., Aug. 18, 2022), is brought against the Defendant for the misrepresentation of production and sale of vinyl records labeled as "Original Master Recording" or records sold as part of the "Ultradisc One Step" series (the "Records"), and to recover damages and restitution for: breach of express warranty; breach of implied warranty, violation of the Magnuson-Moss Warranty Act, fraud, unjust enrichment, violation of the North Carolina Unfair and Deceptive Trade Practices Act, and violation of state consumer fraud acts. The Defendant advertised the Records as being purely analog recordings--i.e., directly from the master recording or original analog tapes--without any sort of digital mastering process. Defendant also charged a price premium for the Records based on the same. And indeed, these representations used to be true. However, since 2011, the Defendant has been using digital mastering or digital files--specifically, Direct Stream Digital ("DSD") technology--in its production chain. Worse still, the Defendant continued to misrepresent to consumers that it did not use digital mastering, or otherwise failed to disclose the use of digital mastering, while still charging the same price premium for the Records as if they were entirely analog recordings. Analog records are coveted not only for their superior sound quality, but also for their collectability. Original recording tapes age, so only a limited number of analog recordings can be produced. Thus, when the Defendant began using a digital mastering process in its Records as opposed to purely analog, it inherently produced less valuable records--because the records were no longer of limited quantity and were not as close to the studio recording--yet still charged the higher price it proscribed to the allegedly all-analog recording process. Had the Defendant not misrepresented that the Records were purely analog recordings, or otherwise disclosed that the Records included digital mastering in their production chain, the Plaintiff and putative Class Members would not have purchased the Records or would have paid less for the Records than they did, says the complaint. The Plaintiff has purchased various records from the Defendant over the years. The Defendant produced and sold the Records to consumers throughout the United States, including in the state of North Carolina.[BN] The Plaintiff is represented by: Carl V. Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 111 W. Jackson Blvd., Suite 1700 Chicago, IL 60604 Phone: (312) 984-0000 Facsimile: (212) 686-0114 Email: malmstrom@whafh.com - and - Philip L. Fraietta, Esq. Max S. Roberts, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Phone: (646) 837-7150 Facsimile: (212) 989-9163 Email: pfraietta@bursor.com mroberts@bursor.com MORGAN STANLEY: Bid to Intervene in Harvey Suit Affirmed in Part ---------------------------------------------------------------- In the lawsuits titled BRANDON HARVEY, individually and on behalf of all others similarly situated, Plaintiff-Appellee v. MORGAN STANLEY SMITH BARNEY LLC, Defendant-Appellee v. MATHEW LUCADANO; TRACY CHEN, Proposed Intervenor-Plaintiffs, Movants-Appellants. BRANDON HARVEY, individually and on behalf of all others similarly situated, Plaintiff-Appellee v. MATHEW LUCADANO, Objector-Appellant v. MORGAN STANLEY SMITH BARNEY LLC, Defendant-Appellee. BRANDON HARVEY, individually and on behalf of all others similarly situated, Plaintiff-Appellee v. TRACY CHEN, Objector-Appellant v. MORGAN STANLEY SMITH BARNEY LLC, Defendant-Appellee. BRANDON HARVEY, individually and on behalf of all others similarly situated, Plaintiff-Appellant, MATHEW LUCADANO; TRACY CHEN, Objectors-Appellees v. MORGAN STANLEY SMITH BARNEY LLC, Defendant-Appellee, Case Nos. 19-16955, 20-15509, 20-15510, 20-15548 (9th Cir.), the United States Court of Appeals for the Ninth Circuit affirms in part, dismisses in part, vacates in part, and remands the matter for further proceedings. Intervenors Tracy Chen and Mathew Lucadano appeal from the district court's order denying their motion to intervene as a matter of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure. Lucadano and Chen also filed individual appeals challenging the district court's final approval of a settlement agreement between Brandon Harvey and Morgan Stanley Smith Barney LLC and the district court's allocation of attorneys' fees and costs. Harvey cross-appeals the district court's award of attorneys' fees, costs, and incentive awards to the Intervenors. The Court of Appeals rejects the Intervenors' collective and individual challenges to the district court's subject matter jurisdiction over Harvey's claim under California's Private Attorneys General Act ("PAGA"), Cal. Labor Code Sections 2698-2699.8, and holds that the district court had subject matter jurisdiction over the PAGA claim. The district court had supplemental jurisdiction over the PAGA claim. Harvey's failure to cite 28 U.S.C. Section 1367 in his complaint as the basis for the district court's jurisdiction over the PAGA claim did not deprive the district court of subject matter jurisdiction, the Court of Appeals holds. The allegations in the operative complaint establish that the PAGA claim and the class claims arise out of a common nucleus of operative fact--here, Morgan Stanley's alleged violations of the Labor Code through its practice of, e.g., requiring employees to incur business expenses without reimbursement. The Intervenors did not challenge the district court's exercise of supplemental jurisdiction in their motion to intervene, so they have waived the argument that the district court abused its discretion in doing so, the Court of Appeals finds. Moreover, the district court's subsequent analysis in connection with the final approval order is not properly before the Court of Appeals for purposes of the Intervenors' appeal. Because review of the discretionary aspect to supplemental jurisdiction" is not jurisdictional, the Court of Appeals declines to reach Chen's separate arguments that the district court abused its discretion in exercising supplemental jurisdiction. The Court of Appeals notes that Harvey has Article III standing to bring the PAGA claim, citing Magadia v. Wal-Mart Assocs., Inc., 999 F.3d 668, 678 & nn. 6-7 (9th Cir. 2021). The Intervenors do not dispute that Harvey's injury is sufficient to confer Article III standing for his "individual and classwide Labor Code claims for damages," and it is undisputed that Harvey has suffered an injury from the alleged Labor Code violations. The Court of Appeals, thus, concludes that the district court had subject matter jurisdiction over the lawsuit. Intervention The Court of Appeals affirms the district court's denial of the Intervenors' motion to intervene as a matter of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure because the Intervenors have not shown that they have a significantly protectable interest related to the subject of the action or that they will not be adequately represented by existing parties. The Intervenors do not have a significant legally protectable interest, the Court of Appeals holds. Nor have they made the necessary compelling showing to demonstrate inadequacy of representation. Appellate Standing The Court of Appeals dismisses Chen's appeal for lack of appellate standing. Because the Court of Appeals affirms the district court's denial of intervention as a matter of right, Chen remains a non-party to the litigation, and her status as a parallel PAGA plaintiff or aggrieved employee does not make her a party to the litigation. Nor does Chen explain why her limited party status for the purpose of receiving attorneys' fees, costs, and incentive awards permits her to appeal unrelated aspects of the district court's approval of the settlement. The Court of Appeals, thus, holds that Chen lacks standing to appeal the district court's approval of the settlement. Moreover, although it has recognized an exception to the general rule that non-parties lack standing to appeal, the Court of Appeals finds that the equities do not weigh in favor of hearing her appeal. Class Certification The Court of Appeals agrees with Lucadano that the district court, in approving the settlement, may have certified a class in which not all class members suffered an injury sufficient to confer Article III standing. The certified class was not limited to those Morgan Stanley employees, who had incurred unreimbursed business expenses or who had contributed money to the challenged AFG program, and there is evidence in the record indicating that that there were class members, who had not suffered injury through Morgan Stanley's AFG program. And the district court did not make a factual finding that every class member suffered some injury through the AFG program or otherwise incurred unreimbursed business expenses. The Court of Appeals lacks assurance that every class member, who would receive damages under the settlement suffered an actual injury from Morgan Stanley's alleged Labor Code violations. The Court of Appeals, therefore, vacates the district court's approval of the settlement agreement and remands for the district court to assess Article III standing of the class members in the first instance. The parties also challenge various other parts of the district court's approval of the settlement. Specifically, the Intervenors argue that the district court erred in approving the class action settlement and abused its discretion in allocating attorneys' fees, and Harvey argues that the district court abused its discretion in allocating attorneys' fees and in awarding service fees to the Intervenors. Because it vacates the district court's approval of the settlement, the Court of Appeals does not address these arguments. Affirmed in part, dismissed in part, vacated in part, and remanded. Each party will bear its own costs on appeal. A full-text copy of the Court's Memorandum dated Aug. 15, 2022, is available at https://tinyurl.com/b9z99y9m from Leagle.com. MVP EVENT: Holmes Sues Over Failure to Properly, Timely Pay Wages ----------------------------------------------------------------- LATOYA HOLMES, individually and on behalf of all those similarly situated, Plaintiff v. MVP EVENT PRODUCTIONS, LLC, Defendant, Case No. 2:22-cv-00952 (E.D. Wis., August 18, 2022) is a collective and class action complaint brought against the Defendant for its alleged violations of the Fair Labor Standards Act, the Wisconsin Minimum Wage Act and the Wisconsin Overtime Wage Act. The Plaintiff and members of the FLSA Minimum Wage Class and Overtime Class have worked for the Defendant preparing and working with food and beverage at American Family Field games at times since August 18, 2019. Also, the Plaintiff and members of the Wisconsin Minimum Wage Class and Overtime Wage Class have worked for the Defendant at American Family Field games at times since August 18, 2020. According to the complaint, the Plaintiff and members of the FLSA Overtime Class and Wisconsin Overtime Class worked more than 40 hours in a workweek. However, the Defendant failed to compensate them for all work performed by them and failed to pay them overtime premium wage for all hours they have worked at the applicable overtime rate in accordance with the FLSA & Wisconsin law. At times, the Defendant did not pay them on time. Instead, the Defendant paid them beyond 31 days of when their wages were earned. Because of the Defendant's alleged violations, the Plaintiff and other similarly situated workers have suffered and continue to suffer wage loss. Thus, on behalf of herself and all other similarly situated workers, the Plaintiff seeks judgment against the Defendant in the amount equal to unpaid back wages at the applicable minimum, agreed upon, and overtime rates, as well as liquidated damages and penalties, litigation costs and attorneys' fees, and other relief as the Court deems just and equitable. MVP Event Productions, LLC provides food and beverage staffing for stadium, arenas, music festivals, and convention centers. [BN] The Plaintiff is represented by: Larry A. Johnson, Esq. Connor J. Clegg, Esq. Timothy P. Maynard, Esq. Summer H. Murshid, Esq. HAWKINS QUINDEL, S.C. 5150 North Port Washington Road, Suite 243 Milwaukee, WI 53217 Tel: (414) 271-8650 Fax: (414) 207-6079 E-mail: ljohnson@hq-law.com tmaynard@hq-law.com cclegg@hq-law.com smurshid@hq-law.com NATIONAL GENERAL: Gutierrez Suit Removed to S.D. California ----------------------------------------------------------- The case styled as Issac Gutierrez, and all others similarly situated v. National General Insurance Company, Integon National Insurance Company, Does 1-10 inclusive, Case No. 37-02022-00027831-CU-IC-CTL was removed from the Superior Court, San Diego County, to the U.S. District Court for the Southern District of California on Aug. 18, 2022. The District Court Clerk assigned Case No. 3:22-cv-01209-L-BGS to the proceeding. The nature of suit is stated as Insurance for Breach of Contract. National General Insurance -- https://nationalgeneral.com/ -- formerly the GMAC Insurance Group is a Winston-Salem, North Carolina-based property and casualty insurance company.[BN] The Plaintiff is represented by: Daniel Saul Levinson, Esq. LAW OFFICE OF DANIEL S LEVINSON APC 990 Highland Drive, Suite 206 Solana Beach, CA 92075 Phone: (858) 792-1100 Fax: (858) 792-1106 Email: dan@levinsonstocktonllp.com The Defendants are represented by: Stephen Michael Hayes, Esq. Tyler R. Austin, Esq. HAYES SCOTT BONINO ELLINGSON GUSLANI SIMONSON & CLAUSE LLP 999 Skyway Road, Suite 310 San Carlos, CA 94070 Phone: (650) 637-9100 Fax: (650) 637-8071 Email: shayes@hayesscott.com taustin@hayesscott.com NATURES SUNSHINE: Maddy Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Natures Sunshine Products, Inc. The case is styled as Veronica Maddy, on behalf of herself and all others similarly situated v. Natures Sunshine Products, Inc., Case No. 1:22-cv-07048 (S.D.N.Y., Aug. 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Nature's Sunshine Products, Inc. -- http://www.naturessunshine.com/ -- is a manufacturer and multi-level marketer of dietary supplements, including herbs, vitamins, minerals, and personal care products.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com NEMS INC: Cromitie Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against NEMS, Inc. The case is styled as Seana Cromitie, on behalf of herself and all others similarly situated v. NEMS, Inc. a/k/a Xtreme Discount Mattress, Inc., Case No. 1:22-cv-06959 (S.D.N.Y., Aug. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. NEMS, Inc. also known as Xtreme Discount Mattress -- https://www.xtrememattress.com/ -- is a company that operates in the Furniture industry.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com NEW JERSEY TRANSIT: Superior Court Affirms Alleyne Suit Dismissal ----------------------------------------------------------------- In the lawsuit styled ANTHONY ALLEYNE, individually and on behalf of all others similarly situated, Plaintiff-Appellant v. NEW JERSEY TRANSIT CORPORATION, Defendant-Respondent, Case No. A-0753-20 (N.J. Super. App. Div.), the Superior Court of New Jersey, Appellate Division, affirms the dismissal of the Plaintiff's complaint. Alleyne, individually, and on behalf of others similarly situated, appeals from an Oct. 8, 2020 Law Division order granting NJ Transit summary judgment and dismissing his second amended class action complaint. The two-count complaint alleged NJ Transit's sleep apnea policy was discriminatorily applied to the Plaintiff and the class members, thereby, violating the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to-50 (count one), and N.J.S.A. 34:11-24.1 of the Workers' Compensation Act (count two). Because the Panel concludes, as did the motion judge, that NJ Transit must prevail as a matter of law, the Superior Court affirms. But the Superior Court does so for different reasons than those articulated by the judge in his oral decision. The genesis of NJ Transit's sleep apnea policy was the September 2016 train crash at Hoboken Terminal that left one person dead and more than 100 people injured. The train's engineer fell asleep at the controls as the train neared the station. He suffered from undiagnosed sleep apnea. The following year, NJ Transit implemented an "Obstructive Sleep Apnea [(OSA)] Policy-Rail Operations," effective April 20, 2017. The Policy expresses NJ Transit's commitment to providing and maintaining a safe environment for all its employees, customers, and the general public. To implement that mission, the Defendant requires screening for OSA in an effort to identify and diagnose this medical condition that may affect alertness or fatigue in covered and safety sensitive rail operations employees. As a locomotive engineer, the Plaintiff meets the definition of a safety sensitive employee. OSA screening occurs during routine physical examinations mandated by the Defendant and at other times not relevant here. The Plaintiff was a member of the Brotherhood of Locomotive Engineers and Trainmen (BLET). Pursuant to Rule 29 of the BLET's collective bargaining agreement (CBA), employees were "required to take and pass examinations connected with their duties." Those examinations included "physical examinations." The medical department employs a "Sleep Assessment Monitoring Procedure" during the physical examination of a covered and safety sensitive employee. This procedure includes measurement of the employee's height and weight, body mass index (BMI), and neck circumference, and review of the employee's Epworth Sleepiness Scale questionnaire. Relevant here, a BMI measurement of thirty-five or more is considered a high-risk factor for sleep apnea. At deposition, Dr. Homer L. Nelson, an NJ Transit doctor, testified he also considers an employee's medical history, including diabetes, hypertension, and possibly cardiac arrhythmia as risk factors for sleep apnea. According to Dr. Nelson, "There's no set number of criteria." NJ Transit considers sleep apnea a medical condition. Accordingly, an employee removed from service for sleep apnea testing is not reimbursed for costs associated with testing or medical consultations. Similar to other medical conditions, these costs are covered by the employee's medical insurance; co-payments and deductibles are the employee's responsibility. These employees may use available sick time or other accumulated leave time when removed from service. If all the employee's time is exhausted, the employee may apply for sick benefits through the Railroad Retirement Board (RRB). Employees, who are removed from service and not diagnosed with sleep apnea, are reimbursed for that time, but not for their out-of-pocket expenses. During the Plaintiff's Oct. 5, 2016 annual physical examination, NJ Transit's medical department determined his BMI was greater than thirty-five. The Plaintiff was removed from service, pending completion of a sleep study. When deposed, the Plaintiff claimed he was removed from service based solely on his BMI. The Plaintiff's sleep study was performed at a testing center through Trinitas Hospital. He testified he picked Trinitas because he was informed that that would be the quickest place to get him in for a sleep study. NJ Transit's medical department provided the Plaintiff a list of medical centers entitled, "Accredited Sleep Center with Expedited Services Available for NJ Transit Employees." The medical department did not give him a "script" for a sleep study. Instead, the Plaintiff was instructed to obtain the prescription from his "personal physician." On Oct. 11, 2016, the Plaintiff completed an overnight sleep study and shortly thereafter was diagnosed with OSA. He complied with the required treatment and was cleared for return to his position on Nov. 9, 2016. The RRB compensated the Plaintiff for the time during which he was removed from service; he was not reimbursed for the costs associated with testing and treatment. On appeal, the Plaintiff raises four challenges to the motion judge's oral decision on summary judgment. In sum, the Plaintiff argues the judge erroneously: (1) determined sleep apnea is not a disability by incorrectly applying the ADA standard, and further finding NJ Transit did not perceive the Plaintiff to have a disability; (2) applied the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), and incorrectly concluded the Plaintiff failed to establish the Policy was discriminatory; (3) found NJ Transit's sleep apnea reimbursement policy is "inextricably intertwined" with the CBA and, as such, preempted by the Labor Management Relations Act, notwithstanding defendant's concession otherwise; and (4) concluded the Plaintiff was not required to treat with a specific sleep apnea doctor, barring recovery of unreimbursed medical expenses under N.J.S.A. 34:11-24.1. Discrimination based on an employee's disability, or perceived disability, is illegal under the LAD. N.J.S.A. 10:5-4. "Disability," as defined under the LAD, includes a "physical or sensory disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, or illness." N.J.S.A. 10:5-5(q). Sleep apnea has been defined as a disorder characterized by brief interruptions of breathing during sleep, which can cause job impairment and motor vehicle accidents. The LAD does not, however, prohibit the establishment and maintenance of bona fide occupational qualifications or prevent the termination or change of the employment of any person who in the opinion of the employer, reasonably arrived at, is unable to perform adequately the duties of employment. Accordingly, the LAD must be applied sensibly with due consideration to the interests of the employer, employee, and the public. Initially, the Superior Court agrees the motion judge applied the wrong standard when finding the Plaintiff's sleep apnea condition was not a disability under the Americans with Disabilities Act (ADA). The Plaintiff did not assert an ADA claim. However, the parties have not cited -- and the Superior Court's research has not disclosed -- any binding authority as to whether sleep apnea is considered a disability under the LAD. Nor has the Plaintiff presented any evidence his sleep apnea was caused by "bodily injury, birth defect, or illness" as required under N.J.S.A. 10:5-5(q). Indeed, the Plaintiff maintains his BMI measurement was the sole reason NJ Transit removed him from service. More importantly, the Plaintiff presented no expert evidence on causation. Moreover, the Superior Court notes, the Plaintiff does not claim the Defendant failed to accommodate his sleep apnea condition. The reason for that omission is obvious, the Superior Court points out. An employer is not required to accommodate an employee, who cannot perform his or her essential job functions even with an accommodation. No accommodation would have permitted the Plaintiff to perform his job safely. Rather, after he successfully completed treatment, the Plaintiff was returned to service in the same position he held prior to testing for, and diagnosis of, sleep apnea. Even assuming the Plaintiff's sleep apnea diagnosis satisfied the definition of disability under the LAD, NJ Transit did not remove the Plaintiff from service based on his physical impairment or perceived impairment, as he maintains on appeal, the Superior Court notes. Instead, the Plaintiff was removed from service for a medical condition that posed a serious threat of injury to the health and safety of himself and others. Notably, the Plaintiff does not dispute the validity of the Policy, having testified at deposition that NJ Transit had a "valid reason" for attempting to prevent accidents through its screening procedure, the Superior Court says. Having considered the undisputed facts in the light most favorable to the Plaintiff, the Superior Court is satisfied summary judgment was properly granted to NJ Transit. Because the Plaintiff has not established a prima facie case of discrimination, the Superior Court says it need not consider his claim under the McDonnell Douglas framework. Simply put, the Plaintiff has failed to demonstrate he was qualified to perform the essential functions of the job between the date of his physical examination and his return to service following completion of his sleep apnea treatment. Moreover, although NJ Transit did not raise preemption under the CBA, having concluded NJ Transit's Policy did not violate the LAD, the Superior Court is satisfied the Policy's reimbursement procedure is consistent with Rules 29 and 30 of the CBA. The Plaintiff's "misgivings" concerning the procedures stated in the CBA should be directed toward the parties that negotiated the agreement. Lastly, the Superior Court is not persuaded by the Plaintiff's argument that NJ Transit was required to pay for his sleep apnea examination under N.J.S.A. 34:11-24.1. In pertinent part, the statute requires an employer to pay the costs associated with medical examinations requested by employers, when the examination is made at the request or direction of the employer, by a physician designated by said employer. The Plaintiff maintains because NJ Transit gave him a list of sleep centers entitled, "Accredited Sleep Centers with Expedited Services Available for NJ Transit Employees," there exist material issues of fact "as to whether NJ Transit 'designated' certain physicians or sleep centers for purposes of the statute." The motion judge rejected the Plaintiff's argument. The record evidence supports the judge's decision, the Superior Court points out. To the extent the Superior Court has not addressed a particular argument, it is because either the Superior Court's disposition makes it unnecessary, or the argument was without sufficient merit to warrant discussion in a written opinion. Affirmed. A full-text copy of the Court's Opinion dated Aug. 15, 2022, is available at https://tinyurl.com/yc3p9hmk from Leagle.com. Matthew H. Morgan -- morgan@nka.com -- (Nichols Kaster, PLLP) of the Minnesota bar, admitted pro hac vice, argued the cause for the Appellant (Schall & Barasch, LLC, Matthew H. Morgan and Robert Schug -- schug@nka.com -- (Nichols Kaster, PLLP) of the Minnesota bar, admitted pro hac vice, attorneys; Patricia Ann Barasch -- pbarasch@schallandbarasch.com -- Matthew H. Morgan and Robert Schug , on the briefs). Domenick Carmagnola argued the cause for the Respondent (Carmagnola & Ritardi, LLC, attorneys; Domenick Carmagnola, of counsel and on the brief; Sean P. Joyce and Jessica A. Merejo, on the brief). NISSAN NORTH AMERICA: Graham FDCPA Suit Removed to E.D. New York ---------------------------------------------------------------- The case styled as James Graham, on behalf of himself and other individuals similarly situated v. Nissan North America Inc., Nissan Motor Acceptance Corp., Nissan Motor Acceptance Company LLC, Nissan-Infiniti LT LLC, Nissan of Garden City, Case No. 607116/2022 was removed from the Supreme Court State of New York, Nassau County, to the U.S. District Court for the Eastern District of New York on Aug. 18, 2022. The District Court Clerk assigned Case No. 2:22-cv-04896-GRB-JMW to the proceeding. The nature of suit is stated as Other Contract. Nissan North America Inc. -- https://www.nissanusa.com/ -- operates in the automotive industry.[BN] The Plaintiff is represented by: Michael Alexander Tompkins, Esq. LEEDS BROWN LAW, P.C. 1 Old Country Road Carles Place, NY 11514 Phone: (516) 873-9550 Fax: (516) 747-5024 Email: mtompkins@leedsbrownlaw.com The Defendants are represented by: Jacob D. Alderdice, Esq. JENNER & BLOCK LLP 1155 Avenue of the Americas New York, NY 10036 Phone: (212) 891-1625 Fax: (212) 891-1699 Email: jalderdice@jenner.com - and - Peter Justin Brennan, Esq. JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL 60654 Phone: (312) 923-2614 Email: pbrennan@jenner.com - and - Russell J. Shanks, Esq. Jeffrey C. Ruderman, Esq. CYRULI SHANKS HART & ZIZMOR 420 Lexington Avenue, Suite 2320 New York, NY 10170 Phone: (212) 661-6800 Fax: (212) 661-5350 Email: rshanks@cshzlaw.com jruderman@cszlaw.com NOMI HEALTH: Servidori Sues Over Unpaid OT & Unreimbursed Expenses ------------------------------------------------------------------ JAMES SERVIDORI, and all others similarly situated under 29 U.S.C. Section 216(b), Plaintiff v. NOMI HEALTH, INC., Defendant, Case No. 6:22-cv-01475-WWB-DCI (M.D. Fla., August 18, 2022) files this collective action complaint against the Defendant for its alleged unlawful policies that violated of the Fair Labor Standards Act. The Plaintiff has worked for the Defendant as a non-exempt hourly-paid Courier from October 18, 2021 through August 15, 2022. The Plaintiff claims that he and other similarly situated Couriers were required by the Defendant to incur significant expense for gasoline, automobile insurance, mileage, and tolls while performing duties for the benefit of the Defendant. However, the Defendant failed to reimburse them for the expenses in weeks they incurred where they also worked in excess of 40 hours per week. The Plaintiff alleges that the Defendant intentionally and willfully refused to pay him and other similarly situated Couriers overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek, the Plaintiff asserts. The Plaintiff seeks to recover unliquidated damages payable by the Defendant, for himself and all other similarly situated Couriers, as well as liquidated damages, reasonable attorney's fees and costs, and any other relief as may be deemed just and reasonable under the circumstances. Nomi Health, Inc. owns and operates a direct healthcare company. [BN] The Plaintiff is represented by: Jordan Richards, Esq. Jake Blumstein, Esq. USA EMPLOYMENT LAWYERS- JORDAN RICHARDS, PLLC 1800 SE 10th Ave., Suite 205 Fort Lauderdale, FL 33316 Tel: (954) 871-0050 E-mail: Jordan@jordanrichardspllc.com Jake@jordanrichardspllc.com NORTH CAROLINA: Bid for Class Cert. in Perez v. Huneycutt Denied ---------------------------------------------------------------- In the case, OSCAR PEREZ, Plaintiff v. FNU HUNEYCUTT, et al., Defendants, Civil Case No. 5:22-cv-00076-MR (W.D.N.C.), Judge Martin Reidinger of the U.S. District Court for the Western District of North Carolina, Statesville Division, denies the Plaintiff's Motion Requesting Class Action Certification and gives him 30 days to amend the Complaint. The pro se incarcerated Plaintiff filed the civil rights action pursuant to 42 U.S.C. Section 1983 addressing incidents that allegedly occurred at the Alexander Correctional Institution, where he is presently incarcerated. He names as Defendants: FNU Huneycutt, the warden; FNU Dye and FNU Duncan, assistant wardens; and John Doe, the captain of Green Unit. The Plaintiff alleges that the Defendants were deliberately indifferent to his need to exercise, which they denied him without due process and, as a result he has gained 12-15 pounds; he developed high blood pressure and high cholesterol; he has experienced increased anxiety and depression; he has constant headaches; and his life expectancy has decreased. He seeks compensatory, nominal and punitive damages, a declaratory judgment, injunctive relief, and a jury trial. The Plaintiff has also filed a Motion asking the Court to certify as a class "all inmates confined at Alexander Correctional Institution, past, current, and future, who have a mental health Code 3 diagnosis, high blood pressure, high cholesterol, overweight, diabetes, and cardiac issues." To state a claim under Section 1983, a plaintiff must allege that he was "deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." The Plaintiff claims that Defendant Huneycutt made a "direct order" not to allow outdoor exercise; that Defendants Dye and Duncan made decisions about inmates' exercise schedule, which was very restricted; that Duncan reviewed grievances "about inmates not being given the opportunity to properly exercise," and failed to correct the situation; and that Defendant John Doe would have known that inmates were not given the opportunity to exercise had he reviewed video and logs. As a result of the foregoing, the Plaintiff claims that he was only able to exercise for 10-15 hours during all of 2021, and that his ability to exercise improved somewhat in 2022 but is still very limited. He claims that his physical and mental health have deteriorated as a result of the Defendants' deliberate indifference Taking his allegations as true for the purposes of initial review and drawing all reasonable inferences in his favor, Judge Reidinger holds that the Plaintiff has made sufficient allegations to allow a claim against Defendants Huneycutt, Dye, and Duncan for exposing him to unconstitutional conditions of confinement to proceed to discovery. However, the Plaintiff's claim against Defendants John Doe appears to be based on respondeat superior and is dismissed. The Plaintiff claims that the Defendants are deliberately indifferent to his serious mental health and medical needs by restricting his movement, exercise, and outdoor recreation. He claims that he is a Code 3 mental health inmate who takes medication, and that the conditions at Alexander CI have increased his anxiety and depression. He further claims that the inability to exercise has caused him to gain weight, that he now has high cholesterol and blood pressure, that he experiences daily headaches, and that all this has decreased his life expectancy. According to the Plaintiff, the Defendants "are aware that they have a very high percentage of mental health inmates and chronic ill inmates at the facility." Judge Reidinger holds that the Plaintiff has failed to adequately allege that the Defendants, who are all non-medical personnel, were subjectively aware of his serious mental health and/or physical health need to which they were deliberately indifferent. Therefore, this claim will be dismissed without prejudice. The Plaintiff claims that the Defendants violated his constitutional rights "by creating practices that deprived the Plaintiff of life expectancy without due process." Assuming arguendo that the conditions at issue are adequately harsh and atypical, Judge Reidinger holds that the Plaintiff has failed to adequately allege that a law or procedure created a liberty interest in their avoidance, or that any Defendant failed to provide him with the required process before those conditions were imposed. Therefore, his due process claim is dismissed without prejudice. Finally, the Plaintiff has filed a Motion asking the Court to certify a class of past, present, and future inmates at Alexander CI. As a pro se inmate, Judge Reidinger holds that the Plaintiff is not qualified to prosecute a class action or assert a claim on behalf of others. Accordingly, his Motion asking the Court to certify a class is denied. In sum, Judge Reidinger finds that the Plaintiff's Section 1983 claims against Defendants Huneycutt, Dye, and Duncan for subjecting him to inhumane conditions of confinement have passed initial review. The remaining claims are dismissed without prejudice. Judge Reidinger allows the Plaintiff 30 days to amend his Complaint, if he so chooses, to correct the deficiencies identified, and to otherwise properly state a claim upon which relief can be granted. Any Amended Complaint will be subject to all timeliness and procedural requirements and will supersede the Complaint. Piecemeal amendment will not be permitted. Should the Plaintiff fail to timely amend his Complaint in accordance with the Order, the matter will proceed only on the claims described in the Order. The Plaintiff's Motion Requesting Class Action Certification is denied. The Clerk of Court is respectfully instructed to mail the Plaintiff a blank Section 1983 prisoner complaint form, an Opt-In/Opt-Out form pursuant to the Standing Order in Misc. Case No. 3:19-mc-00060-FDW, and a copy of the Order. A full-text copy of the Court's Aug. 16, 2022 Order is available at https://tinyurl.com/jkkuz8pv from Leagle.com. OEI HOLDINGS: Alcazar's Bid for Prelim. OK of $397.5K Deal Denied ----------------------------------------------------------------- Chief District Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California denies without prejudice the Plaintiffs' motion to preliminarily approve the proposed settlement in the lawsuit styled Angela Alcazar, et al., Plaintiffs v. OEI Holdings, LLC, et al., Defendants, Case No. 2:19-cv-01209-KJM-AC (E.D. Cal.). The Plaintiffs brought the wage-and-hour lawsuit on behalf of the Defendants' non-exempt employees, alleging the Defendants violated the Fair Labor Standards Act (FLSA), the Private Attorney General Act (PAGA), and other California labor laws. The Plaintiffs allege the Defendants did not pay overtime wages, minimum wages or for meal breaks, among other things. The Named Plaintiffs--Angela Alcazar, Rosa Cazarez, America Duarte, Maria Teresa Valdovinos, Maria Juana Zaragoza, and Lilian Anguiano--are non-exempt employees of the Defendants, who handled, sorted, and packed produce. The lawsuit is styled as a putative Rule 23 class action, FLSA collective action, and PAGA action. The complaint defines the Rule 23 class as "all non-exempt persons who are or have been employed by DEFENDANT EMPLOYERS in the State of California at any time within four (4) years of the filing of the Initial Complaint in this action." The FLSA collective is defined as "all non-exempt persons who are or have been employed by DEFENDANT EMPLOYERS in the State of California within three (3) years of the filing of this Complaint through the date of final disposition of this action." Since the Plaintiffs' initial filing of this lawsuit, six employees have opted in to the FLSA collective. The parties reached a settlement in June 2021. For settlement purposes, class members number approximately 539 agricultural packing workers, who were employed by the Defendants between June 28, 2015, and June 1, 2018. The settlement does not define the members of the proposed FLSA Collective. The Plaintiffs estimate the total value of their claims to be $815,477. The parties' settlement agreement provides a Gross Settlement Amount (GSA) of $397,500--roughly 49 percent of the Plaintiffs' estimated value--with an escalator provision providing that the GSA may be increased based on the total number of workweeks. Out of the GSA, the parties agree $132,500, or one-third, will cover attorneys' fees, $20,000 will cover litigation costs, and $7,500 will be paid to each of the six Named Plaintiffs as service awards. The parties further allocate $9,000 to administer the settlement, and $50,000 toward the PAGA action. They do not allocate any payments toward an FLSA collective action. Overall, the settlement provides a net settlement amount of approximately $153,500. The net settlement amount will be distributed to class members on a pro rata basis based on the number of workweeks worked by each class member. The average distribution to class members will be approximately $285. Any unclaimed funds will be paid cy pres to Legal Aid at Work. If the settlement is approved, class members will release all their FLSA and state labor law claims. Members of the putative class may opt out or object. Membership in the PAGA subclass is automatic under California law. The parties' proposed notice of settlement, however, does not inform the recipient about an FLSA collective action or explain how the recipient may opt in to such a collective. The Plaintiff moves the Court to preliminarily approve the settlement. The Plaintiffs request preliminary certification of their class under Rule 23 now, and seek preliminary approval of a class settlement, which would resolve the class members' FLSA claims. While some factors support preliminary approval of the settlement here, there are obvious deficiencies that prevent approval at this time, Judge Mueller holds. Specifically, the Court identifies three problems with the settlement's release of FLSA claims. First, Judge Mueller states, the Plaintiffs neither specify what FLSA claims are subject to the release nor discuss the value of these claims. With none of the settlement payments allocated toward the FLSA collective action, the only reasonable inference the Court can draw is that the settlement assigns the FLSA claims no value. Judge Mueller opines that the parties must address the absence of a proposed FLSA settlement before the Court can consider whether to preliminarily approve the settlement agreement. Second, Even if the settlement provided adequate value for released FLSA claims, the Plaintiffs have not explained this Court's authority to approve a settlement that releases FLSA claims without first certifying a collective action, Judge Mueller holds. The Court agrees that collective certification is a required first step. Third, Judge Mueller notes that even if an FLSA collective action could be certified, the proposed notice of settlement does not explain the hybrid nature of the settlement, how the recipient can participate or not participate in the FLSA collective action, or the consequences of opting-in to the FLSA collective action. The proposed notice is, thus, defective and must be cured before the Court can properly evaluate it. For these reasons, the Court denies the Plaintiffs' motion without prejudice to a renewed motion addressing the Court's concerns. A full-text copy of the Court's Order dated Aug. 15, 2022, is available at https://tinyurl.com/3fwtf2vt from Leagle.com. ONLINE INFORMATION: Friedman FDCPA Suit Removed to E.D. New York ---------------------------------------------------------------- The case styled as Leopold Friedman, individually and on behalf of all others similarly situated v. Online Information Services, Inc., Case No. 519377/2022 was removed from the Supreme Court of the State of New York, Kings County, to the U.S. District Court for the Eastern District of New York on Aug. 17, 2022. The District Court Clerk assigned Case No. 1:22-cv-04869-DG-SJB to the proceeding. The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. ONLINE Information Services, Inc. -- https://www.onlineis.com/ -- is the nation's leading developer of credit risk assessment and debt recovery solutions.[BN] The Plaintiff is represented by: Robert Thomas Yusko, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: ryusko@steinsakslegal.com The Defendant is represented by: Matthew K. Flanagan, Esq. Jenna Lyn Fierstein, Esq. CATALANO, GALLARDO & PETROPOULOS, LLP 100 Jericho Quadrangle-Suite 214 Jericho, NY 11753 Phone: (516) 931-1800 Fax: (516) 931-1033 Email: mflanagan@cgpllp.com jfierstein@cgpllp.com ORACLE CORP: Faces Privacy Class Action Lawsuit in California ------------------------------------------------------------- Natasha Lomas, writing for TechCrunch, reports that enterprise giant Oracle is facing a fresh privacy class action claim in the U.S. The suit, which was filed on Aug. 19 as a 66-page complaint in the Northern District of California, alleges the tech giant's "worldwide surveillance machine" has amassed detailed dossiers on some five billion people, accusing the company and its adtech and advertising subsidiaries of violating the privacy of the majority of the people on Earth. The suit has three class representatives: Dr Johnny Ryan, senior fellow of the Irish Council for Civil Liberties (ICCL); Michael Katz-Lacabe, director of research at The Center for Human Rights and Privacy; and Dr Jennifer Golbeck, a professor of computer science at the University of Maryland -- who say they are "acting on behalf of worldwide Internet users who have been subject to Oracle's privacy violations". The litigants are represented by the San Francisco-headquartered law firm, Lieff Cabraser, which they note has run significant privacy cases against Big Tech. The key point here is there is no comprehensive federal privacy law in the U.S. -- so the litigation is certainly facing a hostile environment to make a privacy case -- hence the complaint references multiple federal, constitutional, tort and state laws, alleging violations of the Federal Electronic Communications Privacy Act, the Constitution of the State of California, the California Invasion of Privacy Act, as well as competition law, and the common law. It remains to be seen whether this "patchwork" approach to a tricky legal environment will prevail -- for an expert snap analysis of the complaint and some key challenges this whole thread is highly recommended. But the substance of the complaint hinges on allegations that Oracle collects vast amounts of data from unwitting Internet users, i.e. without their consent, and uses this surveillance intelligence to profile individuals, further enriching profiles via its data marketplace and threatening people's privacy on a vast scale — including, per the allegations, by the use of proxies for sensitive data to circumvent privacy controls. Commenting on the suit in a statement, Ryan said: "Oracle has violated the privacy of billions of people across the globe. This is a Fortune 500 company on a dangerous mission to track where every person in the world goes, and what they do. We are taking this action to stop Oracle's surveillance machine." A spokesman for Oracle declined to comment on the litigation. A couple of years ago the firm was facing class action suits, along with Salesforce, via a legal challenge to its tracking in Europe -- which intended to focus on the legality of their consent to track web users, citing the region's (contrastingly) comprehensive data protection/privacy laws. However the European legal challenges, which were filed in the Netherlands and the U.K., have faced tough going -- with a Dutch court ruling the suit inadmissible last year, because (per reports) it judged that the not-for-profit pursing the class action had failed to demonstrate it represented the alleged injured parties and so did not have legal standing. (Although earlier this year the organization behind the suit, the Privacy Collective, said it would appeal.) The U.K. branch of the legal action, meanwhile, was stayed pending the outcome of an earlier class-action style privacy suit against Google -- but last year the U.K. Supreme Court sided with the tech giant, blocking that representative action and dealing a blow to the prospects of other similar suits. In the Lloyd v Google case, the court found that damage/loss must be suffered in order to claim compensation -- and therefore that the need to prove damage/loss on an individual basis cannot be skipped -- derailing the litigation's push for a uniform "loss of control" of personal data for each member of the claimed representative class to stand in its stead. The ruling was considered a hammer blow to opt-out class actions for privacy claims at the time -- clearly throwing another spanner in the works of the Oracle-Salesforce class action's ability to proceed in the U.K. The challenges of litigating privacy class actions in Europe likely explain the push by digital rights experts to test similar claims in the U.S. [GN] ORIGINAL TIME CAPSULE: Jones Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Original Time Capsule LLC. The case is styled as Damon Jones, on behalf of himself and all others similarly situated v. Original Time Capsule LLC, Case No. 1:22-cv-07018 (S.D.N.Y., Aug. 17, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Original Time Capsule LLC is in the Gift Shop business.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com OWL CREEK: Seeks Extension of Time to File Writ of Certiorari ------------------------------------------------------------- OWL CREEK ASIA I, L.P., et al., filed a request with the Supreme Court of United States for an extension of time within which to file a petition for a writ of certiorari in the lawsuit styled Owl Creek Asia I, L.P., et al., Plaintiffs v. UNITED STATES, Defendant, Case No. 1:18-cv-00281-MMS. The judgment for which review is sought is the decision of the United States Court of Appeals for the Federal Circuit in the case captioned as Owl Creek Asia I, L.P., et al., Petitioners vs. United States, et al., Case No. 20-1934. The Plaintiffs, on behalf of themselves and similarly situated shareholders who owned stock in Fannie Mae and Freddie Mac (collectively, the Enterprises), filed complaints with the United States Court of Federal Claims, alleging the following direct claims: (1) the net worth sweep violated the Fifth Amendment for taking (or, alternatively, illegally exacting) the shareholders' equity in the Enterprises without just compensation; (2) the Federal Housing Finance Agency (FHFA) breached its fiduciary duties by entering into the net worth sweep; and (3) the FHFA and the Enterprises breached an implied-in-fact contract (with shareholders as the intended third-party beneficiaries) by agreeing to the net worth sweep. The government moved to dismiss the claims in every case before the Claims Court in a single, omnibus motion. The Claims Court dismissed the shareholders' direct Fifth Amendment takings and illegal exaction claims for lack of standing because it found them to be substantively derivative in nature. The Claims Court also dismissed for lack of subject matter jurisdiction the shareholders' direct claims for breach of fiduciary duty and breach of implied-in-fact contract. The Claims Court, however, found that Andrew Barrett, an individual shareholder of the Enterprises, had standing to bring his derivative claims. The United States Court of Appeals for the Federal Circuit affirmed the Claims Court's ruling in part saying the Claims Court did not err in dismissing shareholders' direct claims; but reversed in part, saying the Claims Court improperly failed to dismiss the remaining derivative claims. [BN] Plaintiffs-Petitioners OWL CREEK ASIA I, L.P., et al., are represented by: David Rosenberg, Esq. JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001 E-mail: ldrosenberg@jonesday.com Defendant-Respondent UNITED STATES, is represented by: Elizabeth B. Prelogar, Esq. Solicitor General UNITED STATES DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 E-mail: SupremeCtBriefs@USDOJ.gov PANERA BREAD: Faces Suit Over "Unlimited Sip Club" Subscriptions ---------------------------------------------------------------- Corrado Rizzi, writing for ClassAction.org, reports that Panera Bread Company faces a proposed class action that alleges the fast-casual cafe chain has limited how often a member of its "Unlimited Sip Club" can refill their beverage. The 16-page case says that although an Unlimited Sip Club subscription purports to provide a member with "endless" access to lemonade, coffee, tea and soda at Panera, the "fine print" reveals that "unlimited" refills of "any size" drink at "any time" means only once every two hours. Further, the lawsuit contends that Panera has deceptively enticed consumers to join its roughly $11-per-month Unlimited Sip Club by dangling a "free trial" after which customers are actually charged immediately for their first month. Essentially, Panera customers must remember to cancel their "free" month of Unlimited Sip Club membership, which automatically renews each month, before the month is out in order to actually enjoy a free trial period, the suit relays. "Even where a 'free trial' would not result in an immediate charge, tethering a free trial to enrollment in an auto-renewing subscription is a deceptive practice," the complaint alleges. By adopting this auto-renewal-by-default policy for its Unlimited Sip Club, Panera "takes advantage of consumer inertia," as auto-renewal users are "seven times more likely" to continue, or not cancel, their subscriptions following an initial trial period, according to the suit. Panera customers who look to cancel their Unlimited Sip Club subscriptions run up against "obstacles" that include having to click through multiple webpages and navigate small font before reaching the page where they can actually cancel their subscription, the lawsuit adds. Once a customer gets there, Panera "interferes with their choice by attempting to prevent their cancellation by a discounted monthly rate," the suit states, claiming such tactics are harmful to consumers. Moreover, the case says, Panera has effectively taken advantage of subscribers by failing to send reminders to customers prior to their automatic subscription renewals each month. Overall, the value of an Unlimited Sip Club subscription is materially less than represented by Panera, the case claims. The lawsuit looks to represent consumers in Michigan, Iowa, Kansas, Montana, Alaska, Arkansas, Wyoming, West Virginia, Kentucky, South Carolina, North Dakota and Utah who subscribed to Panera's Unlimited Sip Club within the applicable statute of limitations period. [GN] PEPPERIDGE FARM: Bid to Dismiss or Strike Hill's Class Claims Nixed ------------------------------------------------------------------- In the case, CHAD HILL, on behalf of himself and others similarly situated, Plaintiffs v. PEPPERIDGE FARM, INC., Defendant, Civil Action No. 3:22-cv-97-HEH (E.D. Va.), Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia, Richmond Division, denies Pepperidge Farm's Motion to Dismiss Amended Complaint and to Strike Class Allegations, filed on June 23, 2022. The Defendant previously filed a Motion to Dismiss and Strike Class Allegations as to the original Complaint on April 18, 2022. At a hearing before the Court on that original Motion to Dismiss, the Court gave Hill leave to file an Amended Complaint. The Plaintiff filed an Amended Complaint on June 9, 2022 and the Court denied the Defendant's original Motion to Dismiss as moot. The Defendant then filed the instant Motion. Pepperidge Farm is a corporation that manufactures and distributes packaged food for retail sale. The Plaintiff is a distributor or "Consignee" of the Defendant who distributes the packaged food to the retail stores. Consignees purchase their right to deliver and distribute the Defendant's products within a specified territory and enter into a Consignment Agreement with it. In the Consignment Agreement, Consignees are referred to as "independent businessmen" with "independent contractor relationships" with the Defendant. The Plaintiff alleges that, despite Consignees being classified as independent contractors, the Defendant maintains all "meaningful and actual control over the product and territory." This level of control, he asserts, means that Consignees are actually employees as that term is defined under the Fair Labor Standards Act. Accordingly, he brings four Counts based on the Consignees' alleged misclassification as independent contractors: Violation of the FLSA -- Failure to Pay Overtime Compensation (Count I); Violation of Virginia Code Section 40.1-28.7:7 -- State Law Misclassification Class Action (Count II); Violation of Virginia Code Section 40.1-29.2 --Virginia Overtime Wage Act ("VOWA") Class Action (Count III); and Violation of Virginia Code Section 40.1-29 -- Unpaid Wage Class Action (Count IV). The Plaintiff brings his FLSA claim (Count I) as a collective action and seeks to bring his remaining state law claims as class actions. The Defendant's Motion rests on three main points. First, it asserts that the Plaintiff's Complaint is legally and factually deficient and fails to sufficiently plead threshold requirements of an employment relationship between them. It claims that he mostly includes conclusory allegations with no factual support. Second, it states that, even if the Court found he had alleged sufficient facts to show he was an employee, he has not alleged plausible overtime claims. Finally, it alleges that he improperly asserts class action claims because the applicable Virginia statutory provisions can "only be asserted under the collective action procedure of the FLSA." Thus, the Defendant seeks to strike the class allegations in Counts III and IV. The Defendant alleges that the Plaintiff has not pled an employer-employee relationship with Pepperidge Farm and the Plaintiff fails to demonstrate that he is not an independent contractor as described in the Consignment Agreement. The tests the relationship between the worker and their employer to determine if "the worker is economically dependent on the business to which he renders services or is, as a matter of economic reality, in business for himself." The economic realities test consists of six factors: (1) the degree of control that the putative employer has over the manner in which the work is performed; (2) the worker's opportunities for profit or loss dependent on his managerial skill; (3) the worker's investment in equipment or material, or his employment of other workers; (4) the degree of skill required for the work; (5) the permanence of the working relationship; and (6) the degree to which the services rendered are an integral part of the putative employer's business. Judge Hudson opines that the Plaintiff has alleged sufficient facts to state at least a plausible claim that he is an employee and not an independent contractor. The Plaintiff has alleged facts that Pepperidge Farm exercises significant control and oversight over him, that control causes him to have virtually no opportunity for profit and loss, that the job requires no special skill, that, while Consignees were responsible for some equipment, the Defendant helped fund Consignees' purchases of territory and handheld devices, that the job is typically a long-term relationship, and that Consignees provide an important service to the Defendant's operation. As such, the Plaintiff's claims will not be dismissed for failure to plead an employment relationship. Next, the Defendant argues that the Plaintiff has not plausibly alleged overtime claims. Judge Hudson finds that the in the Amended Complaint, the Plaintiff estimated the length of his average work week, described the payment scheme, and alleged that he was not paid overtime when he worked over 40 hours in a week. Taking all the allegations in the Amended Complaint as true, he has alleged sufficient facts to "nudge his claim from conceivable to plausible" and "permit the Court to find plausibility." Thus, his overtime wage claims, will not be dismissed. Finally, the Defendant asks the Court to strike the class allegations in Counts III and IV. It asserts that, by bringing the VOWA claims as class actions, the Plaintiff is attempting to "expand the remedies the Virginia General Assembly established for violation of Virginia Code Sections 40.1-29 and 40.1-29.2." It argues, the Virginia General Assembly expressly chose to allow a representative private right of action only under the opt-in collective action procedure outlined in the FLSA. Judge Hudson does not believe that a Rule 12(f) Motion to Strike is the proper method for what the Defendant is trying to achieve. Without ruling on this issue, he does not agree that a Rule 12(f) Motion to Strike is the proper method for handling this matter. As stated above, the movant must show prejudice and that the matter is of the type envisioned by Rule 12(f). Not only has the Defendant failed to show how the class allegations cause any prejudice to them, but they have also not demonstrated that the class allegation is "redundant, immaterial, impertinent, or scandalous matter." Consequently, the 12(f) Motion to Strike is denied. Judge Hudson concludes that the Plaintiff's Amended Complaint provides sufficient factual allegations that, if accepted as true, state a claim for relief against the Defendant. He also finds that a Rule 12(f) Motion to Strike is inappropriate under the circumstances to strike the class allegations in Counts III and IV. Thus, the Defendant's Motion will be denied. An appropriate Order accompanies the Memorandum Opinion. A full-text copy of the Court's Aug. 16, 2022 Memorandum Opinion is available at https://tinyurl.com/ycxy3334 from Leagle.com. PIG & HEN INC: Martinez Files ADA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Pig & Hen Inc. The case is styled as Pedro Martinez, individually and as the representative of a class of similarly situated persons v. Pig & Hen Inc., Case No. 1:22-cv-04819 (E.D.N.Y., Aug. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Pig & Hen -- https://www.pighen.com/ -- are the coolest bracelets for men which are handmade in Amsterdam using paracord, ship rope & stainless steel.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com PJETRO JUNCAJ: Moina Sues Over Unpaid Overtime Compensation ----------------------------------------------------------- Jaime Moina, individually and on behalf of others similarly situated v. PJETRO JUNCAJ HOME IMPROVEMENT INC. and PJETRO JUNCAJ, Case No. 1:22-cv-07014 (S.D.N.Y., Aug. 17, 2022), is brought to challenge the Defendants' practice of disability discrimination in the terms, conditions, and privileges of Plaintiff's employment in violation of the Fair Labor Standards Act ("FLSA"), New York State Labor Law ("NYLL"), and the New York City Human Rights Law by failing to pay proper overtime compensation. Although the Plaintiff regularly worked more than 40 hours each week, the Defendants never paid him at an overtime premium of 150% of his regular rate. The Defendants' failed to pay proper overtime compensation required by federal and state law and regulations to Plaintiff, who worked in excess of 40 hours per week; and the Defendants' failed to provide the Plaintiff with a wage notice and proper paystubs as required by NYLL. The Defendants have knowingly and willfully engaged in a policy, pattern or practice of violating the FLSA and NYLL, says the complaint. The Plaintiff has been employed by the Defendants to work as a mechanic within the last 6 years. The Defendants are a construction company and its owner.[BN] The Plaintiff is a represented by: Michael Taubenfeld, Esq. FISHER TAUBENFELD LLP 225 Broadway, Suite 1700 New York, NY 10007 Phone: (212) 571-0700 Facsimile: (212) 505-2001 PLANNED LIFESTYLE: Tapia Files Suit in Cal. Super. Ct. ------------------------------------------------------ A class action lawsuit has been filed against Planned Lifestyle Services Inc., et al. The case is styled as Bradley Tapia, on behalf of himself and all others similarly situated v. Planned Lifestyle Services Inc., Does 1-50, Case No. 34-2022-00325412-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Aug. 18, 2022). The case type is stated as "Other Employment - Civil Unlimited." Planned Companies -- https://www.plannedcompanies.com/ -- provides industry leading janitorial, maintenance, concierge/front desk and security services throughout the Northeast, Mid-Atlantic, San Francisco and now North Carolina, South Carolina and Atlanta regions.[BN] The Plaintiff is represented by: Mehrdad Bokhour, Esq. BOKHOUR LAW GROUP, PC 1901 Avenue Of The Stars, Ste. 450 Los Angeles, CA 90067-6006 Phone: 310-975-1493 Fax: 310-675-0861 Email: mehrdad@bokhourlaw.com POINTSBET USA: Sued Over Online Gambling's Risk-Free Bets, Refunds ------------------------------------------------------------------ Corrado Rizzi, writing for ClassAction.org, reports that a proposed class action alleges PointsBet USA's promotional promises of "risk-free" bets and "refunds" for unsuccessful wagers ring hollow given the online gambling company offers only limited-duration vouchers good for merely a second round of bets. According to the 43-page case out of Colorado, these vouchers cannot be exchanged for cash or withdrawn and expire after only 30 days. The suit says that a user can only recoup their initial losses should they win a second round of bets at "disfavored odds," making PointsBet's offer "anything but 'risk-free.'" Filed against PointsBet USA and its New York, Indiana, Iowa, Michigan, New Jersey, Colorado, Illinois, West Virginia, Virginia and Pennsylvania subsidiaries, the lawsuit relays that the parent defendant enjoyed "meteoric growth" in the U.S. from 2019 through 2021—success bolstered by partnerships with CBS Sports and all four major national North American sports leagues. Per the case, PointsBet claims to be the fastest-growing sports betting company in the country despite an increasingly crowded market. This increased competition led PointsBet's share of the total bets placed nationwide to take a dip in the third quarter of 2021, the complaint relays. After realizing that it was losing market share, PointsBet needed to not only draw in more customers but "needed a way to make they stay," the lawsuit states. "PointsBet therefore had a problem: it needed to not only attract customers, but find a way to retain them on its platform so that they would not simply take advantage of its promotions and then leave to a competitor. It needed a plan to keep users tied to its platform." To address this quandary, PointsBet embarked on an "aggressive" campaign centered on a promised promotional offer "specifically designed to force [customers] to stay on its platform and place additional bets, or else forfeit the promotion entirely," the lawsuit says. Those who remained did not receive the benefit they were promised, and fell victim to a marketing strategy designed to "capitalize on the addictive nature of gambling" and the susceptibility of online sports bettors, the suit claims. Per the lawsuit, PointsBet, amid its marketing blitz, was well aware of research on the effects of misleading advertisements on the high-risk demographic of online sports bettors yet continued to tout its promotional offers as "risk-free"—and without clearly disclosed terms and conditions. According to the case, the terms and conditions for PointsBets's "risk-free" promotional offers appear "[i]n nearly microscopic print." The truth about PointsBet's "risk-free" and supposedly refundable promos, the lawsuit alleges, is that a user who signed up for one of these promotions and placed an unsuccessful bet would not receive a refund but instead "free bets"—which are subject to a number of restrictions, are non-transferable, expire after 30 days and cannot be redeemed for cash—for up to the amount they initially lost. Further, the complaint says that there are "significant differences" in the payouts for bets placed with free bet credits as opposed to ordinary bets. For an ordinary bet, for instance, a user who wins will receive back the amount of money they bet plus the payout for their winnings, the filing explains. The same is not true for bets placed with free bet credits, as a user receives only their amount in winnings, and not the initial amount wagered, the suit says. "In other words, a user who places a bet for $500 on a bet that pays out $300 will receive $800 if he wins: $500 as reimbursement for the amount wagered, plus $300 in winnings. However, if a user were to place the same $500 bet using PointsBet's free bet credits, and won, that user would receive back only the $300 in winnings." At no point are PointsBet promo users informed prior to placing their initial bets that their "refunds" would come in the form of non-redeemable vouchers subject to a 30-day expiration limit, or that they would need to place a second round of bets in order to receive the promised "refunds," the lawsuit alleges. "These were all material omissions, in that they significantly altered the perceived value of the offer PointsBet advertised," the suit argues. The case looks to cover all persons who created a PointsBet account, whether via its website, mobile app or third-party platform, signed up for a PointsBet account and placed bets on the platform using codes for promotional offers. [GN] PORTFOLIO RECOVERY: Charles Appeals Suit Dismissal to 9th Cir. -------------------------------------------------------------- BENJAMIN CHARLES is taking an appeal from a court ruling dismissing his lawsuit entitled Benjamin Charles, Plaintiff, v. Portfolio Recovery Associates, LLC, Defendant, Case No. 3:17-cv-00955-YY, in the U.S. District Court for the District of Oregon. The Plaintiff, on behalf of himself and all others similarly situated, brought this class action suit against the Defendant for alleged violation of the Fair Debt Collection Practices Act (FDCPA). On December 20 2017, the Defendant filed a motion to compel arbitration. Magistrate Judge Youlee Yim You issued a findings and recommendation on August 1, 2018, in which she recommended that the Court grant the Defendant's motion to compel arbitration. The Plaintiff filed objections to the Magistrate Judge's findings and recommendation to the Court. On February 20, 2019, the Court adopted Magistrate Judge You's findings and recommendation and the Defendant's motion to compel arbitration was granted. The case was then stayed pending individual arbitration of the FDCPA claim alleged by Plaintiff in this case. On June 9, 2022, the Court dismissed the case without prejudice, through an Order entered by District Judge Marco A. Hernandez, due to Plaintiff's failure to respond to the Court's order to show cause why this case should not be dismissed. The appellate case is captioned as Benjamin Charles v. Portfolio Recovery Associates, LLC, Case No. 22-35613, in the United States Court of Appeals for the Ninth Circuit, filed on August 3, 2022. The briefing schedule in the Appellate Case states that: -- Appellant Benjamin Charles Mediation Questionnaire was due on August 10, 2022; -- Transcript is due on October 3, 2022; -- Appellant Benjamin Charles opening brief is due on November 10, 2022. -- Appellee Portfolio Recovery Associates, LLC answering brief is due on December 12, 2022. -- Appellant's optional reply brief is due 21 days after service of the answering brief. [BN] Plaintiff-Appellant BENJAMIN CHARLES, on behalf of himself and all others similarly situated, is represented by: Bret Knewtson, Esq. LAW OFFICE OF BRET KNEWTSON 3000 NE Stucki Avenue, Suite 230-M Hillsboro, OR 97124 Telephone: (503) 846-1160 Defendant-Appellee PORTFOLIO RECOVERY ASSOCIATES, LLC is represented by: Liana Mayilyan, Esq. KAUFHOLD GASKIN LLP 388 Market Street, Suite 1300 San Francisco, CA 94111 Telephone: (415) 642-8188 - and - Tomio Buck Narita, Esq. SIMMONDS & NARITA, LLP 44 Montgomery Street, Suite 3010 San Francisco, CA 94104 Telephone: (415) 283-1010 - and - Robert E. Sabido, Esq. COSGRAVE VERGEER KESTER LLP 900 SW Fifth Avenue, 24th Floor Portland, OR 97204 Telephone: (503) 323-9000 - and - Jeffrey Topor, Esq. SIMMONDS & NARITA, LLP 44 Montgomery Street, Suite 3010 San Francisco, CA 94104 Telephone: (415) 283-1000 PRACTICEMAX INCORPORATED: Witkowski Files Suit in D. Arizona ------------------------------------------------------------ A class action lawsuit has been filed against PracticeMax Incorporated. The case is styled as Katherine Witkowski, on behalf of herself and all others similarly situated v. PracticeMax Incorporated, Case No. 2:22-cv-01387-MTM (D. Ariz., Aug. 17, 2022). The nature of suit is stated as Other Personal Property for Breach of Contract. PracticeMax -- https://practicemax.com/locations/ -- offers business management and information technology solutions for over 31 years.[BN] The Plaintiff is represented by: Cristina Perez Hesano, Esq. PEREZ LAW GROUP PLLC 7508 N 59th Ave. Glendale, AZ 85301 Phone: (623) 826-5593 Email: cperez@perezlawgroup.com - and - Gary M Klinger, Esq. MASON LIETZ & KLINGER LLP - CHICAGO, IL 227 W Monroe St., Ste. 2100 Chicago, IL 60606 Phone: (312) 283-3814 Fax: (773) 496-8617 Email: gklinger@milberg.com - and - Jonathan Tehan Deters, Esq. Terence Coates, Esq. MARKOVITS STOCK & DEMARCO LLC 119 E Court Street Ste., 530 Cincinnati, OH 45202 Phone: (513) 651-3700 Fax: (513) 665-0219 Email: jdeters@msdlegal.com tcoates@msdlegal.com PROPETRO HOLDING: $30M Settlement in Shareholders' Suit Proposed ---------------------------------------------------------------- ProPetro Holding Corp. ("ProPetro" or the "Company") (NYSE: PUMP) on Aug. 23 disclosed that it has entered into a binding term sheet (the "Term Sheet") to fully resolve the previously disclosed putative class action litigation referred to by the Company as the Logan Lawsuit and captioned Nykredit Portefølje Administration A/S, et al. v. ProPetro Holding Corp. et al., Case No. MO:7:19-CV-00217-DC, which was filed in the United States District Court for the Western District of Texas (the "Logan Lawsuit"). The Term Sheet provides for a settlement payment of $30 million in exchange for the complete dismissal with prejudice of the Logan Lawsuit and a release of all claims against the defendants, without any admission of fault or wrongdoing by the defendants. Sam Sledge, Chief Executive Officer, commented, "This resolution is in the best interest of ProPetro and all of our valued stakeholders, and we are working diligently to obtain the necessary court approvals to put this matter behind us. Moving forward, we are focused on operating safely, delivering quality service to our customers, advancing our strategic priorities and driving value for shareholders." The proposed settlement is subject to court approval and will be fully paid by the Company's directors' and officers' insurance providers under its insurance policies. About ProPetro ProPetro Holding Corp. is a Midland, Texas-based oilfield services company providing pressure pumping and other complementary services to leading upstream oil and gas companies engaged in the exploration and production of North American unconventional oil and natural gas resources. For more information visit www.propetroservices.com. [GN] RB HEALTH (US): Nacarino Sues Over False and Deceptive Marketing ---------------------------------------------------------------- Elena Nacarino, on behalf of herself and all others similarly situated v. RB Health (US) LLC, Case No. 3:22-cv-04721-TSH (N.D. Cal., Aug. 17, 2022), is brought to challenge Defendant's false and deceptive practices in the marketing and sale of its Cepacol Extra Strength Sore Throat Honey Lemon Lozenges (the "Product"). The front label of the Product--which is a cough drop meant to soothe the throat--leads reasonable consumers to believe the Product contains honey and lemon. Specifically, the words "Honey Lemon" appear on the Product's front label without any qualification, as well as an image of a honey dipper with honey oozing down from the dipper, alongside a cut lemon wedge. Unbeknownst to consumers however, the Product does not contain honey or lemon. The Plaintiff and other consumers purchased the Product and paid a premium price based upon their reliance on Defendant's front label representations about honey and lemon. Had the Plaintiff and other consumers been aware that the Product does not contain honey or lemon, they would not have purchased the Product or would have paid significantly less for it. Accordingly, the Plaintiff and Class members have been injured by Defendant's deceptive business practices, says the complaint. The Plaintiff purchased the Product from a Target in Daly City, California. The Defendant is a multinational corporation, and one of the largest producers of nutritional and medicinal products.[BN] The Plaintiff is a represented by: Robert Abiri, Esq. CUSTODIO & DUBEY, LLP 445 S. Figueroa Street, Suite 2520 Los Angeles, CA 90071 Phone: (213) 593-9095 Facsimile: (213) 785-2899 Email: abiri@cd-lawyers.com RELIANT PRO REHAB: Haggerty Sues Over Failure to Pay Overtime Wages ------------------------------------------------------------------- Kristina Haggerty, Individually and on behalf of all others similarly situated v. RELIANT PRO REHAB LLC, d/b/a RELIANT REHAB, Case No. 1:22-cv-11329-WGY (D. Mass., Aug. 17, 2022), is brought for violations of the Fair Labor Standards Act ("FLSA") and Massachusetts State Wage and Hour Laws for failing to pay all wages and overtime wages due to the Plaintiff. The Defendant has maintained an unlawful scheme to avoid its overtime pay obligations to a collective of many thousands of its employees working as Therapists in order to increase profits to the tune of millions of dollars each year at the expense of the Therapists. As part of this scheme, the Defendant maintained a de facto policy of commanding and pressuring Therapists to underreport, and submit inaccurate time sheets, including the reporting of 30-minute meal breaks from Therapists that were interrupted or not taken at all due to work obligations. Due to the Defendant's productivity requirements placed upon Therapists which limited the number of hours they could report, the Defendant pressured Therapists to work overtime hours off the clock, placing them in fear of disciplinary action and termination of their employment if recorded all the overtime hours they actually worked which were necessary to complete their job duties. The Plaintiff seeks recovery of wages and damages Therapists have not received to which they are entitled and time-and-a-half pay for overtime wages, says the complaint. The Plaintiff worked for the Defendant as a Speech and Language Pathologist (SLP) providing speech and language therapy to patients at the Defendant's facilities. The Defendant has routinely and consistently conducted business in the State of Massachusetts through its fixed long term health care and nursing home facilities or locations, including in this District.[BN] The Plaintiff is represented by: Hillary Schwab, Esq. FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 Phone: (617) 607-3260 Email: hillary@fairworklaw.com - and - Mitchell L. Feldman, Esq. FELDMAN LEGAL GROUP 6916 West Linebaugh Avenue, # 101 Tampa, Florida 33625 Phone: (813) 639-9366 Fax: (813) 639-9376 Email: Mfeldman@flandgatrialattorneys.com Mail@feldmanlegal.us - and - Michael J. Palitz, Esq. SHAVITZ LAW GROUP, P.A. 477 Madison Avenue, 6th Floor New York, New York 10022 Phone: (800) 616-4000 Fax: (561) 447-8831 Email: mpalitz@shavitzlaw.com - and - Gregg I. Shavitz, Esq. SHAVITZ LAW GROUP, P.A. 951 Yamato Road, Suite 285 Boca Raton, Florida 33431 Phone: (561) 447-8888 Fax: (561) 447-8831 Email: gshavitz@shavitzlaw.com RUBY & QUIRI: Cromitie Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Ruby & Quiri, Inc. The case is styled as Seana Cromitie, on behalf of herself and all others similarly situated v. Ruby & Quiri, Inc., Case No. 1:22-cv-06966 (S.D.N.Y., Aug. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ruby & Quiri -- https://www.randq.com/ -- is a family owned furniture, mattresses, bedding, flooring, appliances, electronics, lighting, and more store located in johnstown, New York.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com SACRAMENTO NATIVE: Will Files Suit in Cal. Super. Ct. ----------------------------------------------------- A class action lawsuit has been filed against Sacramento Native American Health Center Inc., et al. The case is styled as Marlo Will, individually and on behalf of all others similarly situated v. Sacramento Native American Health Center Inc., Does 1-20, Case No. 34-2022-00325298-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Aug. 17, 2022). The case type is stated as "Other Non-Exempt Complaints." Sacramento Native American Health Center Inc. (SNAHC) -- https://www.snahc.org/ -- is a non-profit 501 (c)(3) Federally Qualified Health Center, located in Midtown Sacramento.[BN] The Plaintiff is represented by: Jessica L. Campbell, Esq. AEGIS LAW FIRM 9811 Irvine Center Dr., Ste. 100 Irvine, CA 92618 Phone: 949-379-6250 SAM TUCKER: Senior Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Sam Tucker, LLC. The case is styled as Frank Senior, on behalf of himself and all other persons similarly situated v. Sam Tucker, LLC, Case No. 1:22-cv-07065 (S.D.N.Y., Aug. 18, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Sam Tucker LLC -- https://samtuckerllc.com/ -- is a global ecommerce and manufacturing company.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal SCUDDER LAW FIRM: Stein Suit Transferred to E.D. Tennessee ---------------------------------------------------------- The case is styled as Lewis Stein, individually and on behalf of all others similarly situated v. Scudder Law Firm, Case No. 4:22-cv-03163 was transferred from the U.S. District Court for the District of Nebraska, to the U.S. District Court for the Eastern District of Tennessee on Aug. 18, 2022. The District Court Clerk assigned Case No. 1:22-cv-00207 to the proceeding. The nature of suit is stated as Other Statutory Actions. Abbott Laboratories -- https://www.abbott.com/ -- is an American multinational medical devices and health care company with headquarters in Abbott Park, Illinois, United States.[BN] The Plaintiff is represented by: Michael G. Burnett, Esq. SCOTT, SCOTT LAW FIRM - CONNECTICUT 156 South Main Street P.O. Box 192 Colchester, CT 06415 Phone: (860) 531-2663 The Defendant is represented by: Kenneth W. Hartman, Esq. BAIRD, HOLM LAW FIRM 1700 Farnam Street, Suite 1500 Omaha, NE 68102-2068 Phone: (402) 344-0500 Fax: (402) 344-0588 SHELLPOINT MORTGAGE: Perry Suit Removed to D. Massachusetts ----------------------------------------------------------- The case styled as Dianna Perry, Robert Perry, individually and on behalf of all others similarly situated v. Shellpoint Mortgage Servicing, PHH Mortgage Services, Case No. 2279CV00381 was removed from the Hampden Superior Court, to the U.S. District Court for the District of Massachusetts on Aug. 18, 2022. The District Court Clerk assigned Case No. 3:22-cv-30109 to the proceeding. The nature of suit is stated as Other Real Property. Shellpoint Mortgage Servicing -- https://www.shellpointmtg.com/ -- provides mortgage loan servicing for institutional clients investing in portfolios of non-performing, re-performing and sub-performing residential mortgage loan.[BN] The Plaintiffs appear pro se. The Defendants are represented by: Kevin W. Manganaro, Esq. HINSHAW & CULBERTSON LLP 53 State Street, 27th Floor Boston, MA 02109 Phone: (516) 241-5521 Email: kmanganaro@hinshawlaw.com SINOVAC BIOTECH: Bids for Lead Plaintiff Appointment Due Oct. 17 ---------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized stockholder rights law firm, announces that a class action lawsuit has been filed against Sinovac Biotech Ltd. ("Sinovac" or the "Company") in the United States District Court for the Southern District of New York on behalf of all persons and entities who purchased or otherwise acquired Sinovac securities between April 11, 2016 and February 22, 2019, both dates inclusive (the "Class Period"). Investors have until October 17, 2022 to apply to the Court to be appointed as lead plaintiff in the lawsuit. Since January 2016, competing sets of shareholders have been vying for control of Sinovac. Defendants are individuals and entities associated with 1Globe, a family investment office that is owned and controlled by Defendant Jiaqiang Li ("Li"). Li was Sinovac's largest shareholder when 1Globe's Chief Executive Officer 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 the Rights Agreement on March 28, 2016, which contained a "poison pill" that limited the amount of Sinovac stock that a shareholder could acquire, Defendants made many intentionally false and misleading statements and violated their statutory disclosure obligations under Section 13(d) of the Securities Exchange Act of 1934 ("Section 13(d)"), in order to conceal the extent and purpose of Li's and 1Globe's ownership of Sinovac stock. In addition to misrepresenting the amount of Sinovac stock that Li and 1Globe owned, Defendants misrepresented their secret plan to act in concert with other shareholders to try to take control of the Company. While Sinovac knew that Li and 1Globe were acting in concert based on the Company's private communications with them during the battle for control of the Company, this information was not known to public shareholders. Plaintiff and the Class are Sinovac shareholders that have been caught in the middle of this battle between Sinovac's management and 1Globe for control of the Company. While Plaintiff and the Class also seek to receive fair value if Sinovac is taken private, Defendants' behind-the-scenes scheming impeded this effort. Instead, Defendants have caused Plaintiff and the Class substantial harm by making them lose their ability to collect at least millions of shares they would have otherwise been entitled to under the Rights Agreement. Even the purchase of a single share of Sinovac stock above the rights Agreement's 15% thresholder constitutes a trigger event under the Rights Agreement. All of Li's and 1Globe's purchases of Sinovac stock that they made - or directed to be made on their behalf - after March 28, 2016, therefore triggered Sinovac's poison pill. Defendant's intentionally false statements and omissions concerning the true nature of Li's and 1Globe's ownership of Sinovac stock caused the exchange ("Exchange") under the Rights Agreement to be delayed by several years. If Li had fully disclosed his ownership of Sinovac stock, as he was required to do under Section 13(d), it would have been clear as day that the Rights Agreement was triggered by May 2016, at the latest. While Sinovac knew enough information starting in 2016, largely based on private correspondence, to determine that 1Globe and Li triggered the rights Agreement, Defendants hid the full extent of their ownership of Sinovac stock and their agreements in connection with the battle for control of the Company. Defendants therefore also tortiously interfered with Sinovac's contractual obligations to its shareholders under the Rights Agreement. If 1Globe and Li's actions were disclosed publicly, as they were required to be under Section 13(d), Plaintiff's rights would have been exercisable based on that disclosure, and an Exchange would have occurred based on that date. By misrepresenting the true nature of their ownership of Sinovac stock, Defendants caused that date to be delayed almost three years, until February 22, 2019, resulting in Plaintiff and the Class losing their rights to acquire additional shares of Sinovac stock for all of their shares that they sold in the interim. While Sinovac should have implemented the Rights Agreement in 2016 based on the information available to it at the time, 1Globe and Li exacerbated the problem by violating their disclosure obligations under Section 13(d). Moreover, Defendants caused the value of Sinovac stock to be artificially depressed by preventing the public from accounting for the value of Defendants' stake in Sinovac and their efforts to take control of the Company. If you purchased or otherwise acquired Sinovac shares and suffered a loss, are a long-term stockholder, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. [GN] SNAP INC: Settles Biometric Data Class Action for $35 Million ------------------------------------------------------------- Graeme Massie, writing for Independent, reports that Snapchat has reached a $35m class action lawsuit deal over claims it used lenses and filters to collect the biometric data of users. The social media platform denies any wrongdoing in the case brought against it in Illinois but decided to settle the litigation before it went to trial. People qualify if they were a Snapchat user in Illinois who used the app features "Lenses" and "Filters" between 17 November 2015, and the present. Individual settlement amounts will depend on how many people submit a claim and are approved to receive settlement money out of the $35 million pot. People must submit a claim form by 5 November 2022 to qualify for a payment, which must be approved by the Settlement Administrator. The form can be submitted online, or be downloaded and mailed to the Settlement Administrator. Snapchat was accused of violating the Illinois Biometric Information Privacy Act by allegedly collecting voiceprints and scans of facial geometry. The case was filed in May in the US District Court for the Northern District of Illinois. The state's Biometric Privacy Act bans private sector companies and institutions from collecting biometric data from unsuspecting citizens in the state or online, no matter where the company is based. In another case, more than one million Facebook users in Illinois received checks following a $650m class action settlement that alleged the company collected and stored digital scans of faces without permission. [GN] SONY CORP: Faces $5.9BB Class Action Over PlayStation Digital Games ------------------------------------------------------------------- Jeff Yeung, writing for Yahoo!Sports, reports that Sony is now facing a lawsuit claiming $5.9 billion USD from the company for allegedly "ripping people off" through its PlayStation digital game sales. According to a new report from Sky News, the Japanese gaming giant is being sued by a consumer rights organization in the U.K. led by Alex Neill which accuses the company of predatory and anti-competitive pricing for the digital versions of its games. The filing says that Sony puts a commission of 30 percent on all games sold as well as microtransactions via its online store, resulting in higher prices for consumers. In total, up to nine million customers could receive a payout from the lawsuit, ranging anywhere from $79 and 61 USD. "The game is up for Sony PlayStation," said Neill. "With this legal action, I am standing up for the millions of U.K. people who have been unwittingly overcharged. We believe Sony has abused its position and ripped off its customers." PlayStation isn't the only company to charge a 30 percent commission either. Back in 2021, Epic Games filed a similar lawsuit against Apple for charging the same amount for transactions made through the latter's App Store and obtained a partial victory. Apple was forced to allow Epic Games to steer players to third-party payment options, although the court also ruled that the tech giant did not hold a monopoly over mobile gaming transactions. Elsewhere in gaming, the Star Wars: Knights of the Old Republic remake has reportedly landed at another developer. [GN] SOUTHWEST AIRLINES: Bevacqua Sues Over Improper Security Fees ------------------------------------------------------------- AIDAN BEVACQUA, individually and on behalf of others similarly situated, Plaintiff v. SOUTHWEST AIRLINES, CO., Defendant, Case No. 3:22-cv-01837-L (N.D. Tex., Aug. 18, 2022) seeks to obtain refunds of improperly withheld Security Fees ("TSA Fees") for passengers who either cancelled their reservations with Southwest prior to travel or otherwise did not travel and received a Travel Credit instead of the promised refund. According to the Plaintiff in the complaint, in its standard contract with passengers, Southwest promised to refund collected TSA Fees if passengers did not use the travel tickets they purchased. But when passengers did not use their travel tickets and thus, any TSA security services, Southwest systematically failed to refund the TSA Fees as promised and even refused when passengers specifically so requested, says the suit. Instead of providing its promised refund of TSA Fees to the original form of payment to these many passengers who did not or could not travel, Southwest improperly converted those funds into a Travel Credit, which restricted such funds to Southwest travel limited only to the originally ticketed passenger and expired one year after the date of issuance of the cancelled ticket, the suit alleges. SOUTHWEST AIRLINES CO. is a domestic airline that provides primarily short-haul, high-frequency, and point-to-point services. [BN] The Plaintiff is represented by: Stephen T. Blackburn, Esq. STEPHEN T. BLACKBURN 2626 Cole Avenue, Suite 300 Dallas, TX 75204 Telephone: (214) 540-4537 Facsimile: (214) 594-8986 Email: Stephen.T.Blackburn@gmail.com -and- Laura L. Ho, Esq. James Kan, Esq. Byron Goldstein, Esq. Mengfei Sun, Esq. GOLDSTEIN BORGEN DARDARIAN & HO 155 Grand Avenue, Suite 900 Oakland, CA 94612 Telephone: (510) 763-9800 Facsimile: (510) 835-1417 Email: lho@gbdhlegal.com jkan@gbdhlegal.com brgoldstein@gbdhlegal.com msun@gbdhlegal.com STERLING JEWELERS: Byars Sues Over Alleged Illegal Wiretapping -------------------------------------------------------------- ARISHA BYARS, individually and on behalf of all others similarly situated, Plaintiff v. STERLING JEWELERS, INC.; and DOES 1 through 25, inclusive, Defendants, Case No. 5:22-cv-01456 (C.D. Cal., Aug. 18, 2022) is an action against the Defendant for illegal wiretapping of communications through the website www.banter.com in violation of the California Invasion of Privacy Act. According to the Plaintiff in the complaint, unknown to visitors to the Website, the Defendant has secretly deployed "keystroke monitoring" software that the 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. The Defendant then shares the intercepted communications with at least one third party and harvests personal data from the secret transcripts, says the Plaintiff. STERLING JEWELERS INC. retails jewelry. The Company sells gold, silver, diamond, and gemstone jewelry, watches, and gifts. Sterling Jewelers offers rings, necklaces, bracelets, and earrings. [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 Tel: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com STERLING JEWELERS: Phillips Sues Over Employee Mistreatment ----------------------------------------------------------- Helena Phillips, Celeste Giron, Spencer Maki, Jules Santos, and Diane White, individuals and on behalf of themselves and all others similarly situated v. STERLING JEWELERS, INC, a Delaware corporation; SIGNET JEWELERS LIMITED, a foreign corporation; and DOES 1 through 10, Inclusive, Case No. 3:22-cv-01214-AJB-BLM (S.D. Cal., Aug. 18, 2022), is brought because of the Defendants' systematic mistreatment of their employees, in violation of California's wage and hour laws. The Defendants' employees at the retail stores are compensated through the payment of both hourly wages and commissions. However, while employees regularly receive commissions, Defendants did not include those amounts in their regular rate of pay when calculating overtime pay, sick and vacation pay, as well as meal and rest period premiums when such premiums were actually paid. Further, Defendants regularly failed to provide employees with meal breaks, failed to authorize and permit rest breaks, and failed to provide meal and rest break premiums in lieu of such breaks. Additionally, employees were required to work off-the-clock and were also not reimbursed for required business expenses. Finally, Defendants failed to provide accurate wage statements and maintain adequate records and failed to pay all wages owed upon termination of employment, says the complaint. The Plaintiff worked as a non-exempt employee at a Jared The Galleria of Jewelry retail store in National City, California, which is operated by Defendant Sterling. The Defendants operate retail jewelry stores under a number of names in the State of California, including Jared The Galleria of Jewelry and Kay Jewelers and employ numerous employees in those retail stores.[BN] The Plaintiff is represented by: Justin Hewgill, Esq. Efaon Cobb, Esq. HEWGILL COBB & LOCKARD, APC 1620 5th Avenue, Suite 325 San Diego, CA 92101 Phone: (619) 432-2520; Fax: (619) 377-6026 Email: contact@hcl-lawfirm.com - and - Ben Travis, Esq. BEN TRAVIS LAW, APC 4660 La Jolla Village Drive, Suite 100 San Diego, CA 92122 Phone: (619) 353-7966 Email: ben@bentravislaw.com SUGAR CREEK: Cordell Suit Stayed Pending Ruling on Cert. Process ---------------------------------------------------------------- In the case, SARA CORDELL, on behalf of herself and all others similarly situated, Plaintiff v. SUGAR CREEK PACKING CO., Defendant, Case No. 2:21-cv-755 (S.D. Ohio), Judge Algenon L. Marbley of the U.S. District Court for the Southern District of Ohio, Eastern Division, denies without prejudice the Plaintiff's Motion to Certify Class Conditionally Under the Fair Labor Standards Act and grants the Defendant's Motion to Stay. Ms. Cordell worked as an hourly, non-exempt employee for Sugar Creek for approximately two years, processing, packaging, and/or handling food. In addition to the work that Cordell and others similarly situated engaged, Sugar Creek also provides cooking and food safety solutions for retail and food services companies. Sugar Creek, which operates facilities in Ohio, Indiana, and Kansas, required employees that processed, packaged, and otherwise handled food to sanitize themselves and don protective clothing and equipment prior to engaging in their work. This pre-shift preparation also occurred during unpaid meal periods. Ms. Cordell and others similarly situated routinely worked over 40 hours per week. Because Sugar Creek did not compensate employees for this work preparation, Cordell asserts that she and others similarly situated did not receive full overtime pay. Shortly thereafter, Cordell filed suit. On Feb. 22, 2021, Cordell brought the action on behalf of herself and all similarly situated employees for alleged violations of the Fair Labor Standards Act, 29 U.S.C. Sections 201, et seq., and Ohio Revised Code Sections 4113.03(D), 4113.15, and 2307.60. She filed her Amended Complaint on May 27, 2021, reducing her claims under Ohio law to O.R.C. Section 4113.03(D). The Defendant timely answered. On Sept. 7, 2021, the Plaintiff filed her Motion to Certify Class Conditionally Under the Fair Labor Standards Act. The Defendant timely Responded, and the Plaintiff timely Replied. On March 09, 2022, the Defendant filed a Motion to Stay, the Plaintiff filed a timely Response, and the Defendant timely Replied. In its Motion to Stay, the Defendant argues that the Court should stay the case until the Sixth Circuit decides In re: A&L Home Care And Training Center, LLC, et al. (No. 21-0305); In re: Larry Holder, et al. (No. 21-0306) (6th Cir. 2022). There, the Sixth Circuit is considering the propriety of the two-step certification process in FLSA cases. The Defendant contends that because the single issue before the Court is whether the Plaintiff's case should be conditionally certified as a collective action under FLSA, issuing a stay is the more prudent alternative. It also contends that a stay will yield benefits of judicial economy, less briefing by the parties, uniformity of law, and avoid prejudicing the Defendant by not requiring it to send notices under a certification process that is currently being challenged. It also argues that a stay will not cause harm to any party. Finally, it observes that several pending decisions seeking conditional certification in the Southern District have been stayed for these very reasons. The Plaintiff argues that each of the Defendant's offered reasons is deficient. First, in a similar case -- a purported FLSA collective action and Ohio Rule 23 class -- the Court denied a motion to stay because it found that the presence of the Rule 23 class outweighed any gains in judicial economy, citing Kleinhans v. Greater Cincinnati Behav. Health Servs., No. 1:21-CV-00070, 2022 WL 682664, at *1 (S.D. Ohio Mar. 8, 2022). Second, she asserts that there would be no prejudice to the Defendant because if conditional certification were granted, lead Plaintiff would coordinate and pay for the notices sent to potential opt-in Plaintiffs. Third, she argues that the Court need not wait for the Sixth Circuit to rule on the case because until that court changes the law, the two-step certification process is binding. Fourth, she argues that she would be prejudiced because the statute of limitations for her FLSA claims would continue to run, potentially leading to the expiration of such claims before the Sixth Circuit rules. In the event the stay is granted, the Plaintiff requests that the Court equitably tolls the statute, just as other decisions in the Southern District have decided. Judge Marbley finds that the factors weigh in favor of a stay. The need for the stay implicates the legal issue the Plaintiff seeks to resolve; the case is in the early stages of litigation; a stay will simplify the issues that must be resolved; it reduces the burden on the parties and the Court; and considered together, outweighs the risk of prejudice the Plaintiff claims. Moreover, at this stage of litigation -- part one of the current conditional certification process -- the parties and the Court will benefit from the Sixth Circuit clarifying the role such analytical framework should play, if any, in the FLSA collective context. This clarification will reduce the danger of having to consider this issue twice should the Sixth Circuit decide that the two-step certification process is no longer viable, which would redound to the benefit of the parties as well as the Court. The Plaintiff's claims of prejudice, on the other hand, are either mitigated or otherwise not well supported. Though the Plaintiff argues prejudice flowing from the FLSA's continuously running statute of limitations, this issue can be easily avoided via equitable tolling. And while the Plaintiff also argues that FLSA collective actions with a Rule 23 component should not be stayed, she provides little authority to support this proposition. Finally, time -- though not immaterial -- is an issue in every motion to stay that is opposed. Thus, on its own, this factor bears little weight in differentiating those cases more suited for a stay. Taken together, each of the Plaintiff's claims of prejudice are either mitigated or unsupported. Accordingly, the factors in aggregate militate toward a stay. Hence, the Defendant's Motion to Stay is granted. Because he grants the Defendant's Motion to Stay, Judge Marbley denies the Plaintiff's Motion to Certify Class Conditionally Under the Fair Labor Standards Act without prejudice. He also grants the Plaintiff's request for Equitable Tolling of the statute of limitations for the FLSA claims. The parties will jointly schedule a status conference with the Court within 14 days of the final disposition of that matter. A full-text copy of the Court's Aug. 16, 2022 Opinion & Order is available at https://tinyurl.com/444aw632 from Leagle.com. SUPER STORE INDUSTRIES: Alvarez Files Suit in Cal. Super. Ct. ------------------------------------------------------------- A class action lawsuit has been filed against Super Store Industries. The case is styled as Rudy J. Alvarez, individually and on behalf of himself and all others similarly situated v. Super Store Industries, Case No. STK-CV-UOE-2022-0007254 (Cal. Super. Ct., San Joaquin Cty., Aug. 18, 2022). The case type is stated as "Unlimited Civil Other Employment." Shellpoint Mortgage Servicing -- https://www.shellpointmtg.com/ -- is committed to working with each of our customers to provide the highest level of service possible.[BN] The Plaintiff is represented by: Christina M. Lucio, Esq. FARNAES & LUCIO, APC 2235 Encinitas Blvd., Ste. 210 Encinitas, CA 92024-4357 Phone: 760-942-9433 Fax: 760-452-4421 Email: clucio@farnaeslaw.com SYNCREON TECHNOLOGY: Faces Grant Wage-and-Hour Suit in California ----------------------------------------------------------------- KELVIN LAMAR GRANT, an individual and class representative on behalf of himself and all other similarly situated non-exempt former and current employees, Plaintiff v. SYNCREON TECHNOLOGY (USA) LLC., a Delaware Limited Liability Company; SYNCREON HOLDINGS, LTD, a Delaware Limited Partnership; ARROW WORKFORCE SOLUTIONS INC., a California Corporation; AWS, INC., a California Corporation; CANADIAN EXECUTIVE SEARCH GROUP, INC, a California Corporation; CANADIAN EXECUTIVE SEARCH GROUP (USA) INC., a California Corporation; EMPLOYBRIDGE, LLC, a California Corporation; EMPLOYBRIDGE HOLDING COMPANY, a Delaware Corporation ; PROLOGISTIX EXPRESS INC., a California Corporation; REAL TIME STAFFING SERVICES, LLC, a California Corporation; and DOES 1 through 100, inclusive, Defendants, Case No. 22STCV26567 (Cal. Super., Los Angeles Cty., Aug. 16, 2022) seeks to recover from the Defendants wages and penalties from unpaid wages earned and due, including but not limited to unpaid minimum wages and unpaid wages, unpaid and illegally calculated overtime compensation, illegal meal and rest period policies, failure to timely pay wages, failure to pay all wages due to discharged or quitting employees, failure to maintain required records, failure to provide accurate itemized wage statements, failure to indemnify employees for necessary expenditures and/or losses incurred in discharging their duties, and interest, attorneys' fees, costs, and expenses pursuant to the California Labor Code and the applicable Industrial Welfare Commission Wage Order. Grant is a resident of the State of California who was employed by the Defendants as a non-exempt employee at all times relevant to this complaint. Syncreon Technology (USA) LLC provides logistics services. The Company offers coordination, storage and handling, configuration and assembly, kitting and packing, and distribution services. Syncreon Technology operates worldwide.[BN] The Plaintiff is represented by: Shoham J. Solouki, Esq. Grant Joseph Savoy, Esq. SOLOUKI | SAVOY, LLP 316 W. 2nd Street, Suite 1200 Los Angeles, CA 90012 Telephone: (213) 814-4940 Facsimile: (213) 814-2550 T-MOBILE USA: $350MM Data Breach Settlement Awaits Court Approval ----------------------------------------------------------------- Dan Avery, writing for CNET, reports that a cybercriminal hacked T-Mobile in 2021, exposing millions of users' personal information. As a result of the massive data breach, current and past customers may be owed money from the settlement of a multimillion-dollar class-action lawsuit. The mobile carrier has agreed to a $350 million payout to settle litigation over the break-in. T-Mobile hasn't acknowledged any wrongdoing, but in a statement shared with CNET, said it was "pleased to have resolved this consumer class action filing." T-Mobile "Customers are first in everything we do and protecting their information is a top priority," T-Mobile said. "Like every company, we are not immune to these criminal attacks." If given final approval, the agreement will be the second-largest data breach settlement in US history, following Equifax's $700 million settlement in 2019. We'll explain what you need to know about the T-Mobile data-breach settlement, including who is eligible for a check, how much they might get and when the money could arrive. For more on class-action suits, find out if you qualify for a payout from Facebook's $90 million settlement, the $190 million Capital One data breach case or AT&T's $14 million hidden-fees payout. What happened in the T-Mobile data breach case? On Aug. 15, 2021, T-Mobile reported a cyberattack had led to the theft of millions of people's personal information -- including names, addresses, birth dates, Social Security numbers, driver's license details and unique codes that identify individual phones. Exactly how many people were hacked and how they were impacted is unclear: According to court filings, approximately 76.6 million people had their data exposed, but T-Mobile has claimed only about 850,000 people's names, addresses and PINs were "compromised." An individual selling the information on the dark web for 6 bitcoin (approximately $277,000 at the time) told Vice they had data relating to over 100 million people, all compiled from T-Mobile servers. John Binns, a 21-year-old living in Turkey, eventually took responsibility for the cyberattack, the fifth such attack that has hit T-Mobile since 2015. "I was panicking because I had access to something big," Binns told The Wall Street Journal. "Their security is awful." The July 24 settlement, filed in the US District Court for the Western District of Missouri, merges at least 44 class-action suits that claimed T-Mobile was lax with its cybersecurity. It also stipulates that T-Mobile invest $150 million in improving data security. Cyberattacks aside, T-Mobile still expects to add 6 million to 6.3 million new customers this year -- making it the industry leader in subscriber growth over rivals AT&T and Verizon. How much money could I receive from the settlement? Class members -- in this case, people who were T-Mobile customers in August 2021 -- could receive cash payments of $25, Reuters reported, or $100 if they are California residents. It could also be substantially less, depending on how many people respond. In addition to paying out claims, the $350 million has to go toward settling legal fees and administrative costs. The plaintiffs' lawyers may charge up to 30% of the settlement, according to court filings. Separately, some people could receive as much as $25,000 to cover losses they suffered as a direct result of the breach. T-Mobile is also offering two free years of McAfee's ID Theft Protection Service to anyone who believes they may have been a victim of the hack. How do I find out if I qualify for a payment from T-Mobile? T-Mobile has not released the full details of its payment plan. Typically class members are notified they are eligible by mail. (Full disclosure: This reporter was a T-Mobile customer at that time.) Read more: How to Protect Your Personal Data After a Security Breach Once customers are notified, they are then given 90 days to submit claim forms or request to opt out of the settlement and reserve the right to pursue their own separate legal claims, according to court papers. It could be several months before individuals find out if they will receive money from the settlement, TechCrunch reported. When will payments go out? Qualified class members likely won't see any money until at least 2023. T-Mobile has 30 days to provide the court with a list of class members, along with their phone numbers and mailing and email addresses, "to the extent available." Once eligible parties are notified, claims can be submitted. Legal fees are deducted and the remaining money is divvied up among class members who sent back claims. That could take months. In addition, the $350 million payout has only received preliminary approval. It still requires final sign-off from a judge, which T-Mobile said would come by December at the earliest. What is T-Mobile doing to protect against future security breaches? T-Mobile has "doubled-down" on fighting hackers, the company said in its July 22 statement, by boosting employee training, collaborating with industry experts like Mandiant and Accenture on new protocols and creating a cybersecurity office that reports directly to the company's chief executive officer, Mike Sievert. Security journalist Brian Krebs reported in April 2022 that T-Mobile was a victim of the hacking group Lapsus$. The hackers accessed employee accounts and attempted to find T-Mobile accounts associated with the Department of Defense and FBI, TechCrunch reported. They were thwarted by secondary authentication checks. [GN] TANYA ZUCKERBROT: Slade Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Tanya Zuckerbrot Nutrition, LLC. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Tanya Zuckerbrot Nutrition, LLC, Case No. 1:22-cv-06969 (S.D.N.Y., Aug. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Tanya Zuckerbrot Nutrition doing business as F-Factor -- https://www.ffactor.com/ -- is a dietitian created program for weight loss and optimal health based on fiber-rich nutrition.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com TEXAS: Class Action Mulled Over Uvalde School Mass Shooting ----------------------------------------------------------- KSAT reports that a massive lawsuit was announced on behalf of those affected by the Robb Elementary School shooting. The class-action suit is going after several law enforcement agencies as well as a gun manufacturer. The lead attorney filing the suit, Charles Bonner, said they are fighting for justice and accountability. "What we intend to do to help serve this community and that is to file a $27 billion civil rights lawsuit under our United States Constitution, one-of-a-kind in the whole world," he said. Bonner, a civil rights attorney, said he intends to file a class action lawsuit against anyone who can be held responsible for what happened inside of Robb Elementary on May 24. "We have the school police, OK, out of Redondo. We have the city police, and we have the sheriff and we have the Texas Rangers, the DPS, and we have the Border Patrol," he said, as well as gun manufacturer Daniel Defense and Oasis Outback, where the gunman bought the weapon used. "There will be some institutional defendants, including the school board or the city council," Bonner said. He and his associate have been traveling to Uvalde from their California office for weeks - meeting with families at Pastor Daniel Myers' church, Tabernacle of Worship. "Up to right now, there's been no accountability, there's no justice for those 19 children and the two teachers," Myers said. The suit is being filed on constitutionality. Bonner said the victims, survivors and their families had their 14th Amendment rights violated. "And what we've seen here is that the law enforcement agencies have shown a deliberate, conscious disregards of those lives," he said. Bonner's law firm is taking on this class-action suit with a team of other firms, including a local Uvalde law office. It's a big undertaking, one he said he believes is necessary to save lives. "Everyone in this world (is) hurting and bleeding about what is happening here in Uvalde. And it's up to us to make sure it doesn't happen again," Bonner said. The lawsuit is still being drafted. Bonner said it'll be filed in September when the investigation into the shooting is done. [GN] TEXAS: Southern District of Texas Dismisses Bennett v. State Bar ---------------------------------------------------------------- Judge Alfred H. Bennett of the U.S. District Court for the Southern District of Texas, Houston Division, grants the Defendant's motion to dismiss the lawsuit titled ROBERT S. BENNETT, et al., Plaintiffs v. STATE BAR OF TEXAS, Defendant, Case No. 4:21-CV-02829 (S.D. Tex.). The Plaintiffs also requested an extension of time to file their Response, which the Court grants. Plaintiffs Robert S. Bennett, Nachael Foster, and Andrew Bayley, three active members of Defendant State Bar of Texas, assert class action claims against the Defendant for First Amendment violations pursuant to 42 U.S.C. Section 1983, money had and received, and unjust enrichment. The Defendant moves to dismiss all claims made against it under Rule 12(b)(1) of the Federal Rules of Civil Procedure on the basis of sovereign immunity and under Rule 12(b)(6) for failure to state a claim. Because the Court finds that it lacks subject matter jurisdiction, it need not address the Defendant's Rule 12(b)(6) arguments. The Plaintiffs concede that "Texas's State Bar Act expressly provides that the State Bar of Texas is 'an administrative agency of the judicial department of government.'" Yet the Plaintiffs offer no authority stating that the Defendant's sovereign immunity as to claims for unjust enrichment, money had and received, or Section 1983 violations has been abrogated by Congress or waived by the Texas Legislature, Judge Bennett notes. The Plaintiffs argue that "sovereign immunity does not bar suits for specific, nonmonetary relief against government officers sued in their official capacities" or "for prospective relief when it is alleged that the state officials acted in violation of federal law." While it is true that "the Eleventh Amendment does not bar a private party from suing a state officer in his official capacity for injunctive relief," Judge Bennett points out that the Plaintiffs have not served process on any state officers. As such, the Court finds that the Plaintiffs have failed to carry their burden of proving that the Court has subject matter jurisdiction over the only Defendant before the Court, an undisputed agency of the State of Texas. Accordingly, the Defendant's Motion is granted and the case is dismissed. The Defendant's Motion to Transfer Case and the Plaintiffs' Motion to Certify Class are denied as moot. A full-text copy of the Court's Order dated Aug. 15, 2022, is available at https://tinyurl.com/5dvbeeda from Leagle.com. THERANOS INC: Faces Class Action Over Laboratory Testing Services ----------------------------------------------------------------- Andrea Downing Peck, writing for Dark Daily, reports that Theranos founder and ex-CEO Elizabeth Holmes and ex-COO/President Ramesh "Sunny" Balwani have been found guilty on multiple counts of fraud and now await sentencing in federal criminal court. But the pair's legal entanglements are not yet over. A class-action lawsuit filed on behalf of patients who purchased Theranos clinical laboratory testing services between November 2013 and June 2016 is weaving its way through the legal system. Defendants in the civil case include Holmes and Balwani as well as Theranos, Inc., Walgreens Boots Alliance (NASDAQ:WBA) and Walgreens Arizona Drug Company. According to JND Legal Administration, a class action administration services provider with offices in Los Angeles, Minneapolis, New York, and Seattle, the class-action lawsuit has been filed in the US District Court for the District of Arizona in Phoenix. While no court date has been set, the trial is expected to occur in 2023, a news release states. "The lawsuit claims, among other things, that these blood testing services were not capable of producing reliable results, that the defendants concealed the blood testing services' unreliability, that Walgreens knew that the blood testing services were unreliable and not market-ready, that the defendants conspired to commit fraud on consumers, that Theranos' 'tiny' blood testing technology (blood drawn with finger pricks) was still in development, and that the customers who were subject to 'tiny' Theranos blood draws by Walgreens employees gave their consent to those blood draws under false pretenses," the news release notes. If the defendants are found liable, plaintiffs, who could number in the hundreds of thousands, could receive money or benefits. The Mercury News reported that Arizona's attorney general had identified 175,000 consumers who purchased tests from Theranos/Walgreens at an average cost of $60 per test. Elizabeth Holmes and Ramesh Balwani A class-action lawsuit filed on behalf of patients who purchased Theranos blood testing services at a Walgreens or Theranos location includes as defendants company founder/CEO Elizabeth Holmes (left), ex-Theranos President/COO Ramesh "Sunny" Balwani (right), as well as Theranos, Inc., Walgreens Boots Alliance, and Walgreens Arizona Drug Company. The trial is expected to begin in 2023. It will no doubt draw the attention of clinical laboratory directors and pathologists who followed the Holmes/Balwani fraud cases very closely. (Photo copyright: The Wall Street Journal.) Federal Court Upholds Class Certification The Top Class Actions news site notes that in 2021 Walgreens and Balwani unsuccessfully appealed to get the class-action lawsuit against them decertified. According to the Arizona Theranos, Inc. Litigation website, the court has certified one Class and three Subclasses: Class: All purchasers of Theranos testing services, including consumers who paid out-of-pocket, through health insurance, or through any other collateral source between November 2013 and June 2016. Arizona Subclass: All purchasers of Theranos testing services in Arizona between November 2013 and June 2016. California Subclass: All purchasers of Theranos testing services in California, between September 2013 and June 2016. Walgreens Edison Subclass: All purchasers of Theranos testing services who were subjected to "tiny" blood draws (finger pricks) by a Walgreens employee between November 2013 and March 2015. Lieff Cabraser Heimann and Bernstein LLP—one of two law firms serving as "Class Counsel" in the litigation—states on its website that, in October 2016, US District Judge H. Russel Holland consolidated four proposed consumer class action fraud lawsuits against Theranos and appointed the San Francisco-based firm as co-lead counsel. Seattle-based Keller Rohrback LLP is co-lead counsel. 'There Is No Money' "The lawsuit seeks damages, including reimbursement of the amounts paid by consumers for the voided tests, as well as an injunction to prevent Theranos and Walgreens from engaging in further misrepresentations and unfair conduct," the Lieff Cabraser website states. In its notice to potential members of the class action, JND Legal Administration states the "defendants contend that they did not do anything wrong, and they are not liable for any harm alleged by the plaintiffs." In addition, the notice points out, "There is no money available now, and there is no guarantee that there will be." Where could money come from to pay plaintiffs? Likely not from Theranos or Holmes. Though Theranos reached a peak valuation of $9 billion in 2014, it owed at least $60 million to unsecured creditors when the company was dissolved in 2018, USA Today reported. After turning over its assets and intellectual property, Theranos anticipated having only $5 million to distribute to creditors. And Forbes reported that Holmes' net worth dropped from $3.6 billion to $0 in 2016. However, Balwani, who netted nearly $40 million in 2000 when he sold shares of software company Commerce One, has an estimated net worth of $90 million, according to Wealthypipo. As of 2022, Walgreens Boots Alliance is ranked number 18 on the Fortune 500 rankings of the largest United States corporations by total revenue. The Arizona Theranos Litigation website points out that the suit does not seek damages or other relief for personal injury, emotional distress, retesting costs, or medical care costs. Any Theranos/Walgreens customer intent on pursuing such legal action would need to exclude themselves from the class action case and proceed with separate litigation. The deadline to opt out of the class-action lawsuit is September 12, 2022. And so, though clinical laboratory directors and pathologists may have thought the saga of Theranos ended following Balwani's conviction, it apparently continues. It is anyone's guess what is to come. [GN] THOMAS L. CARDELLA: Class in Munoz Suit Conditionally Certified --------------------------------------------------------------- In the case, GABRIELA MUNOZ, Plaintiff v. THOMAS L. CARDELLA & ASSOCIATES, INC., Defendant, Case No. 2:21-cv-00558 MIS/KRS (D.N.M.), Judge Margaret Strickland of the U.S. District Court for the District of New Mexico grants the Plaintiff's Opposed Motion for Conditional Certification and Notice to the Putative Class Members. The case concerns claims brought by Munoz against the Defendant for violation of the Fair Labor Standards Act and the New Mexico Minimum Wage Act. The Plaintiff, who was formerly employed by the Defendant as a Customer Service Representative ("CSR"), asserts that it improperly required her and its other hourly call-center employees to perform work without pay prior to their official start times, as well as unpaid overtime. The Defendant operates numerous call centers which provide customer service, technical support services, and sales and marketing support for its clients. She was hired as a CSR in October of 2018, and left her employment with the Defendant in May of 2019. During that period, she asserts that she was regularly required to perform work without pay prior to her official start time, and that she was improperly denied overtime pay. She also alleges that "several hundred" other CSRs at the call center where she worked "all followed the same policies and procedures." There is already a similar conditionally certified collective action pending against Defendant in the Northern District of Iowa, Enger, et al. v. Thomas L. Cardella & Associates, Inc., No.1:20-cv-00078 CJW/KEM, 2021 WL 5035045 (N.D. Iowa Jan. 26, 2021), and three of the declarations submitted in support of the Plaintiff's Motion were initially filed in support of that case. In her Motion, the Plaintiff asks that the Court authorizes notice to the other call center employees impacted by the Defendant's alleged misconduct "who were employed by Defendant in New Mexico, at any time from June 16, 2018 through the final disposition of this matter." In support of her Motion, she has submitted her own sworn declaration, the sworn declarations of six coworkers, a proposed notice schedule, proposed notice and consent forms, and the notice and consent forms from Enger, et al. v. Thomas L. Cardella & Associates, Inc., No. 1:20-cv-00078 CJW/KEM, 2021 WL 5035045 (N.D. Iowa Jan. 26, 2021). The Plaintiff has modified the proposed collective definition since filing the Amended Complaint, and now seeks conditional certification of the following collective: "All hourly call-center employees who were employed by Thomas L. Cardella & Associates, Inc., in New Mexico, at any time from June 16, 2018 through the final disposition of this matter." The Plaintiff clarifies that an "hourly call-center employee" includes "any hourly employee who worked for the Defendant either in a call center or remotely from home, who clocked in through the computer, and whose job duties included taking some outbound and/or inbound phone calls, emailing with customers, and/or handling internet chat services on behalf of TLC and/or its customers." She has included six sworn declarations of coworkers in support of her allegations. She contends that her substantial allegations, her declaration, and the declarations of her coworkers show that the Defendant subjected its employees to a company-wide policy or plan which denied them proper overtime pay and pay for pre-shift work, in violation of the FLSA. She therefore asks that the Court authorizes notice to the other call-center employees employed by the Defendant after June 16, 2018. Judge Strickland finds that the allegations in the Amended Complaint, supported by the arguments and evidence in the Motion, constitute substantial allegations that the putative collective members were, as a group, the victims of a single decision, policy, or plan resulting in violations of the FLSA. For the purpose of the Plaintiff's FLSA claim, the case is conditionally certified as a collective action on behalf of the following FLSA collective members: "All hourly call-center employees who were employed by Thomas L. Cardella & Associates, Inc., in New Mexico, at any time from June 16, 2018 through the final disposition of this matter." Judge Strickland grants the Plaintiff's Opposed Motion for Conditional Certification and Notice to the Putative Class Members. She approves the requested notice methods. The Defendant is directed to post the notice and consent forms at its call centers in plain view within five days of an order finalizing said forms. It will disclose to the Plaintiff's counsel the names, job title, start and end dates, last known addresses, email addresses, and telephone numbers of the potential plaintiffs in a computer-readable format. The Plaintiff will meet and confer with the Defendant, and file an updated Proposed Notice. The Plaintiff will indicate in a cover page whether the Defendant opposes the updated wording of the Proposed Notice. The Defendant will file its objections, if any, to the Proposed Notice by Sept. 9, 2022. A full-text copy of the Court's Aug. 16, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/5n6upk4t from Leagle.com. TLC SOLUTIONS: Misclassifies Employees, Pineda et al. Claim ----------------------------------------------------------- DICTER PINEDA and MILAGROS LOPEZ FARINAS, on behalf of themselves and all similarly situated employees, Plaintiffs v. TLC SOLUTIONS OF FLORIDA, INC., a Florida corporation; and MELODY MEZA, individually, Defendants, Case No. 9:22-cv-81284-XXXX (S.D. Fla., August 18, 2022) bring this complaint seeking to recover unpaid overtime compensation and other damages against the Defendant as a result of its alleged willful and intentional violations of the Fair Labor Standards Act and the Florida Unfair and Deceptive Trade Practices Act. The Plaintiffs were employed by the Defendant approximately from January 19, 2022 through June 1, 2022 as hourly-paid employees. The Plaintiffs claim that they and other similarly situated employees have been improperly classified as independent contractors by the Defendant. Although they worked more than 40 hours per week on many occasions throughout their employment with the Defendant, the Defendant did not pay them the required overtime premium for any hours worked beyond 40 per week. The Plaintiffs also allege that the Defendant has breached the terms of the Agreement by not paying them all agreed to wages earned, allege the Plaintiffs. TLC Solutions of Florida, Inc. provides wireless network solutions designed specifically for portability, ease-of-use and tactical applications. [BN] The Plaintiffs are represented by: Christopher C. Copeland, Esq. CHRISTOPHER C. COPELAND, P.A. 1003 W. Indiantown Road, Suite 208 Jupiter, FL 33458 Tel: (561) 691-9048 Fax: (866) 259-0719 Primary E-mail: Chris@CopelandPA.com Secondary E-mail: Carla@CopelandPA.com TOYOTA MOTOR: Cardenas' Bid to Reject Butler's Expert Opinion Nixed ------------------------------------------------------------------- In the lawsuit styled JAVIER CARDENAS and RODNEY BAKER, individually and on behalf of all others similarly situated, Plaintiffs v. TOYOTA MOTOR CORPORATION; TOYOTA MOTOR SALES, U.S.A., INC.; TOYOTA MOTOR ENGINEERING & MANUFACTURING, INC.; and SOUTHEAST TOYOTA DISTRIBUTORS, LLC, Defendants, Case No. 18-22798-CIV-MORENO (S.D. Fla.), Judge Federico A. Moreno of the U.S. District Court for the Southern District of Florida, Miami Division, denies the Plaintiffs' Renewed Motion to Exclude Defendants' Expert Sarah Butler. Plaintiffs Javier Cardenas and Rodney Baker (referred throughout just as Cardenas) are the representatives in this class action against Toyota about how the company produced cars that stink and then concealed that fact from purchasers. The Order concerns Cardenas' renewed motion to strike the expert opinions, report, and testimony of Toyota's expert named Sarah Butler. Butler is a managing director of a firm that provides expert statistical, survey, economic, and financial research analysis. The so-called "Butler report" attempts to evaluate how potential purchasers would respond to a disclosure from Toyota regarding the potential for odor from an HVAC design defect. Butler surveyed 412 respondents. In the "non-disclosure group," 207 individuals were shown Kelley Blue Book reviews of certain 2020 model Toyota Camry vehicles. In the "disclosure group," 205 individuals were shown a modified version of the same review that contained an additional disclosure: "Toyota has disclosed that the HVAC system in the [class vehicles] may emit a musty, damp, and/or sour odor. HVAC system odor has many causes, and may be caused by a design that allows condensing water to accumulate and for naturally occurring organic materials to be trapped in the system." Based on this survey, Butler concluded that potential purchasers would have cared little about the disclosure and the possible defect. The Plaintiffs' first argument is that the Butler survey does nothing more than confirm that most respondents did not notice the disclosure about HVAC odor because it was buried in a lengthy product review. The survey, therefore, does not, as Butler suggests, test the importance of the HVAC disclosure to the respondents. To support this argument, Cardenas points out that the product review, when printed, is over ten feet long; and the disclosure itself occupied only a small portion of the review. Further, Cardenas explains that zero out of 205 respondents clicked the hyperlink that provided more information about the disclosure. The Court agrees with Toyota that this argument is weak. First, the disclosure was presented to respondents in a real-world format that permitted them to attach whatever significance that they deemed appropriate to the disclosure. That no respondents clicked the hyperlink to additional information is consistent with (but not irrefutable evidence of) Butler's conclusion that respondents did not find the disclosure important. Second, Cardenas' characterization of the disclosure as only occupying a small part of a ten-foot-long review is misleading: the disclosure was not shown on paper, but rather on a survey presented on a computer, where it occupied a reasonable portion of the screen. Finally, Judge Moreno finds Cardenas has not identified an actual survey principle or method that was violated. On the contrary, Butler designed the survey to avoid "focalism bias," consistent with a well-accepted survey principle that counsels against asking leading questions that "prime" or "focus" respondents on the particular feature being tested. Mr. Cardenas disagrees, of course, explaining that the survey is flawed because Butler "failed to rule out a highly likely alternative cause for the effects observed; namely, that only a small minority of the respondents likely noticed or read the HVAC disclosure." Cardenas and his experts may have--in their view--a better or more plausible interpretation of the data collected by the Butler survey. But these objections go to weight, not admissibility, Judge Moreno holds. Mr. Cardenas next argues that Butler did not test a legitimate disclosure about the defect because the disclosure language in the survey more closely tracked Toyota's defense than his theory of the case. The language in issue said: "HVAC system odor has many causes" and "may be caused by a design that allows for naturally occurring organic materials to be trapped in the system." This phrasing, according to Cardenas, is similar to the language that Toyota used in its technical service bulletins, which, he says, were misleading. The Courts finds this argument similarly unpersuasive. First, this language tracks the language that Cardenas' own expert used in his report: "musty, damp, or sour odor may be emitted from the HVAC system of some of the vehicles." But either way, the sufficiency of the language used in a survey is again the type of objection that goes to weight and not admissibility, Judge Moreno points out. Mr. Cardenas' last argument stands on the shoulders of his first two: because the Butler survey does not answer what weight respondents accorded the disclosure but instead whether they noticed it, the survey will not assist the jury in this case and should thus be excluded. Judge Moreno finds that this argument is a re-branded iteration of the first two. Because the first two arguments do not provide sufficient grounds for exclusion, this argument similarly fails. The motion to exclude is, thus, denied. A full-text copy of the Court's Order dated Aug. 15, 2022, is available at https://tinyurl.com/3usxy9md from Leagle.com. TOYOTA MOTOR: Court Won't Exclude Wilcox Opinions in Cardenas Suit ------------------------------------------------------------------ In the case, JAVIER CARDENAS and RODNEY BAKER, individually and on behalf of all others similarly situated, Plaintiffs v. TOYOTA MOTOR CORPORATION; TOYOTA MOTOR SALES, U.S.A., INC.; TOYOTA MOTOR ENGINEERING & MANUFACTURING, INC.; and SOUTHEAST TOYOTA DISTRIBUTORS, LLC, Defendants, Case No. 18-22798-CIV-MORENO (S.D. Fla.), Judge Frederico A. Moreno of the U.S. District Court for the Southern District of Florida, Miami Division, denies the Plaintiffs' Renewed Motion to Exclude Defendants' Expert Ronald Wilcox, filed on April 8, 2022. The lawsuit is a class action case brought under Florida's Deceptive and Unfair Trade Practices Act. The named Plaintiffs allege that various Toyota entities concealed a defect in the Heating, Ventilation, and Air Conditioning units of 2012-2014 Toyota Camry vehicles. Toyota offers Professor Wilcox as an expert in consumer behavior. In general, he seeks to testify that even if Toyota disclosed the alleged defect, consumer purchasing decisions would not have changed. Cardenas seeks to exclude Wilcox under Federal Rule of Evidence 702 and Daubert. Mr. Wilcox is a professor of business administration at the University of Virginia's Darden Graduate School of Business Administration. There, he conducts research and teaches classes related to marketing and consumer behavior. Toyota asserts, and Cardenas does not dispute, that Professor Wilcox has extensive expertise in consumer behavior, surveys, and statistical modeling of consumer choice. Toyota retained Wilcox to demonstrate that Cardenas's "core contention" is wrong: it is not the case that class members either would not have purchased their class vehicles or would have paid significantly less if Toyota had disclosed the alleged defect. To that end, Wilcox provides three main opinions, which are elaborated upon in his report: 1. Consumers vary in how they make vehicle purchase decisions, and, as a result, any additional disclosure from Toyota would have affected each class member's purchase decision differently. 2. Consumers vary in whether they would have received or reviewed an additional disclosure from Toyota about the potential for HVAC odor. 3. Even if received and reviewed, an additional disclosure about the potential for HVAC odor likely would not have mattered to many consumers for multiple reasons, including: (1) consumers value information sources differently; (2) consumers value vehicle features differently; (3) the incidence of HVAC odor is low; (4) HVAC odor is an industry-wide issue, making it an unlikely differentiator in the vehicle purchase decision; (5) the potential for HVAC odor is known prior to purchase by some consumers; (6) the vast majority of consumers were satisfied with their Class Vehicles; and (7) consumers vary in the perception of HVAC odor and would vary in their response to a disclosure as a result. As Cardenas points out, much of the data underlying Wilcox's opinions is from surveys completed by Toyota and third-party companies. Those surveys include Maritz's New Vehicle Customer Survey, J.D. Power's Initial Quality Survey, Toyota's 30-Day Product Quality Survey, Toyota's 90-Day Product Quality Survey, and Toyota's Durability and Product Quality Survey. Wilcox also consults and includes academic literature on consumer behavior and related topics. This is all, of course, in addition to relying on his own expertise in the area. Mr. Cardenas moved to exclude Wilcox's opinions, reports, and testimony in January 2021. In September 2021, the Court denied the motion with leave to refile after the Court's ruling on class certification. In April 2022, Cardenas renewed the motion. Mr. Cardenas first argues that the Court should exclude what he defines as Wilcox's opinion 1 -- that even if Toyota had provided a disclosure of the defect, many consumers may not have received. He offers three bases for exclusion: (1) the opinion in effect says that consumers would not have "relied" on the disclosure, but "reliance" is not an element of a claim under Florida's Deceptive and Unfair Trade Practices Act; (2) the opinion is based only on unsupported speculation because Wilcox did not do any of his own surveys, nor did he otherwise communicate with consumers; and (3) the opinion will confuse the jury because Wilcox defines "receive" as meaning both to physically receive the disclosure from Toyota, not from any other source, and to mentally comprehend the disclosure's contents. These are not adequate bases for exclusion, Judge Moreno finds. First, while Cardenas is correct that he needn't prove actual reliance for each class member, he still needs to prove causation. Next, it is not the case, as Cardenas asserts, that Wilcox only supports opinion 1 with his own say so. Neither has he suggested that the underlying data is unreliable. Finally, Cardenas may disagree with the definition of "receive" that Wilcox uses in his opinion, but it isn't that confusing -- it makes sense that "receive" in the context of a defect disclosure would mean to both physically receive and to understand the defect. Mr. Cardenas seeks to exclude what he deems Wilcox's opinion 2 -- that even if consumers did receive a disclosure, it likely would not have mattered to many of them -- on two separate grounds. First, he argues that the opinion should be excluded because it does not "fit" his claims: this case is about a design defect, not merely HVAC odor, yet Wilcox assumed that the disclosure would relate to the potential for HVAC odor instead of a defect specifically. Second, he argues that opinion 2 is unreliable because Wilcox did not base his conclusions on any specific disclosure language, he only assumed that the disclosure would relate to HVAC odor. Neither is a sufficient ground to exclude him, Judge Moreno holds. Among other things, he dfinds that Cardenas himself has not offered any specific disclosure language; although Toyota has offered another expert, Sarah Butler, that opines on the effect of specific language. To the extent Cardenas disagrees with these principles or conclusions, he is free to offer his own expert or cross examine Wilcox. The testimony nevertheless fits within the Wilcox's opinions and is relevant to the issues. Mr. Cardenas next argues that Wilcox should be precluded from testifying that some consumers were aware of the potential for HVAC odor before they purchased the vehicle and that class members consulted a variety of sources of information when deciding to purchase their vehicle. These arguments are unpersuasive, according to Judge Moreno. He says Wilcox merely points to evidence like internet websites, prior lawsuits, and Toyota's own technical service bulletins to suggest that some consumers had knowledge of the HVAC issue before they purchased the vehicles. And in view of the sources and data relied upon by Wilcox, it is obvious that a lay juror could not simply review them on their own and reach similarly sophisticated conclusions. Also, the threshold to qualify as an expert is not particularly high. Finally, Wilcox cites the academic literature in that field. For these reasons, Judge Moreno concludes that Cardenas has not provided any solid ground to exclude Professor Wilcox's opinions, testimony, or report. Hence, his motion to exclude is denied. A full-text copy of the Court's Aug. 16, 2022 Order is available at https://tinyurl.com/ymu67uth from Leagle.com. TRUSTCO BANK: New York Court Narrows Claims in Jenkins Class Suit ----------------------------------------------------------------- In the case, THOMAS JENKINS, Plaintiff v. TRUSTCO BANK, Defendant, Case No. 1:21-cv-238 (GLS/ATB) (N.D.N.Y.), Judge Gary L. Sharpe of the U.S. District Court for the Northern District of New York grants in part and denies in part Trustco's motion to dismiss the amended complaint. Mr. Jenkins brings the putative class action against Defendant Trustco, asserting claims for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and violations of New York General Business Law (NYGBL) Section 349 arising out of Trustco's "improper assessment and collection of multiple $36 fees." Now pending is Trustco's motion to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6). Mr. Jenkins is a citizen of Florida and maintains a checking account with Trustco. Trustco "is a bank registered to do business in New York and with its principal place of business in Schenectady, New York" and maintains 145 branches in New York, Florida, Massachusetts, New Jersey, and Vermont. Jenkins claims that Trustco violated New York State law and the contractual agreements governing his account by assessing multiple thirty-six dollar insufficient fund fees "on the same item." Trustco first asserts that the language of the agreement between Trustco and Jenkins unambiguously authorizes it to charge multiple NSF fees for re-presented payments because each time a payment is re-presented it is considered a new item. With respect to Jenkins' claim for the breach of the covenant of good faith and fair dealing, it argues that this claim should be dismissed because it is duplicative of Jenkins' breach of contract claim. Truscto also contends that Jenkins' claim for unjust enrichment must be dismissed because such a claim cannot survive if there is an enforceable contract and Jenkins has not challenged the validity of the contract in place. Finally, it seeks dismissal of Jenkins' claim under NYGBL Section 349 because Jenkins has failed to allege that he was harmed in New York and because this claim is duplicative of his breach of contract claim. Mr. Jenkins counters that the agreement with Trustco unambiguously does not allow for multiple fees to be charged for re-presented payments because the term "item" includes the original request for payment and all subsequent re-presentments. In the alternative, Jenkins argues that the language of the agreement is ambiguous, and, thus, this claim cannot be dismissed at this stage. (Id. at 12-14.) Next, he asserts that his claim for the breach of the covenant of good faith and fair dealing should not be dismissed because "a party may be in breach of the covenant, even if it is not in breach of the express contractual obligations." Jenkins also contends that his claim for unjust enrichment should survive because "plaintiffs are permitted to pursue alternative theories at this early stage in the litigation." Finally, he argues that his allegations are sufficient to support the notion that deception occurred in New York, making NYGBL Section 349 applicable to the case. Another court in this district recently ruled on a motion to dismiss in a putative class action lawsuit against Trustco, in which the plaintiffs alleged the same breach to an identical contract -- Lamoureux v. Trustco Bank, 1:21-CV-0336, 2022 WL 798339 (N.D.N.Y. Mar. 16, 2022). In the present case, Trustco is represented by the same counsel and cites to the same portions of the contract to support its position as it did in that case. With respect to the breach of contract claim, the court in Lamoureux found that the terms of the contract were ambiguous, both interpretations of the contract were reasonable, and dismissal of the breach of contract claim was not proper. Following the reasoning in Lamoureux, both interpretations are reasonable in the present case, thus, the contract is ambiguous, and Trustco's motion to dismiss is denied on this issue. Mr. Jenkins' claim for the breach of the implied covenant of good faith and fair dealing must be dismissed. Although Jenkins argues that "a party may be in breach of this covenant, even if it is not in breach of its express contractual obligations," he relies on the same factual allegations for his claim for breach of contract and his claim for breach of the implied covenant of good faith and fair dealing. Accordingly, Judge Sharpe agrees with Trustco that this claim must be dismissed because Jenkins does not allege any facts independent from his breach of contract claim. Further, following the reasoning in Lamoureux, Jenkins' claim for unjust enrichment must also be dismissed. Trustco seeks dismissal of this claim on the grounds that a claim for unjust enrichment can only remain if there is a dispute as to whether there was a valid and enforceable contract between the parties, which no party disputes in this case. In the amended complaint, Jenkins states that the claim for unjust enrichment "is brought solely in the alternative to his breach of contract claim." Jenkins argues that at the early stages of litigation such alternative theories are permitted. Although a plaintiff may plead alternative causes of action, Jenkins' claim for unjust enrichment must be dismissed because he does not challenge the validity of his agreement with Trustco and has failed to allege facts sufficient to support his claim. With respect to Jenkins' claim under NYGBL Section 349, Judge Sharpe holds that this too must be dismissed. Trustco asserts that Jenkins' allegations that its headquarters are in New York, has its principal place of business in New York, hatched a deceptive scheme in New York, and that the contract is governed by New York law are insufficient to invoke New York GBL Section 349. Jenkins counters that this claim should stand because the court in Cruz v. FXDirect Dealer, LLC did not focus on the residency of the parties but rather analyzed the strength of the connection between the transaction and New York. He further explains that the court in Cruz found that the plaintiff satisfied the territorial requirement to invoke NYGBL Section 349 "in part because the agreement was governed by New York law." Judge Sharpe agrees with Trustco. Jenkins has not satisfied the territorial requirement to invoke NYGBL Section 349. Jenkins' reliance on Cruz is misplaced because the court in Cruz relied on the fact that the agreement was governed by New York law and such additional facts are not pleaded. The only connections to New York alleged in the amended complaint are Trustco's headquarters, its principal place of business, and Jenkins' allegation that Trustco formulated a deceptive scheme in New York. These allegations are insufficient to invoke NYGBL Section 349. Accordingly, Judge Sharpe grants in part and denies in part Truscto's motion to dismiss. He denies with respect to the breach of contract claim, and grants in all other respects. The parties will contact Magistrate Judge Andrew T. Baxter to schedule further proceedings. The Clerk provide a copy of the Summary Order to the parties. A full-text copy of the Court's Aug. 16, 2022 Summary Order is available at https://tinyurl.com/thnhafyr from Leagle.com. TUYA INC: Wolf Haldenstein Reminds of Oct. 11 Lead Plaintiff Due ---------------------------------------------------------------- Wolf Haldenstein Adler Freeman & Herz LLP on Aug. 23 disclosed that a federal securities class action lawsuit has been filed in the United States District Court for the Southern District of New York on behalf of investors who purchased or otherwise acquired the American Depositary Receipts ("ADR's) of Tuya Inc. ("Tuya" or the "Company") (NYSE: TUYA) pursuant and/or traceable to the Company's March 2021 initial public offering (the "IPO"). All investors who purchased the ADR's of Tuya Inc. and incurred losses are urged to contact the firm immediately at classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may obtain additional information concerning the action or join the case on our website, www.whafh.com. If you have incurred losses in the ADR's of Tuya Inc., you may, no later than October 11, 2022, request that the Court appoint you lead plaintiff of the proposed class. Please contact Wolf Haldenstein to learn more about your rights as an investor in the ADR's of Tuya Inc. Tuya offers a purpose-built "Internet of Things" cloud platform that delivers a suite of offerings including Platform-as-a-Service, or PaaS, and Software-as-a-Service, or SaaS, to business and developers. The Company's proprietary products and services enable "smart devices," e.g., household items and appliances connected to the internet, to communicate and interact with end users and online information and services. Approximately 20% of Tuya's customers sell products online through e-commerce marketplaces such as Amazon.com. In order to maintain the integrity of its platform, Amazon.com has long prohibited the practice of sellers compensating review writers for their reviews in most instances. Despite this prohibition, in April 2019, the consumer website Which? published a report claiming that Amazon had been "flooded by fake five-star reviews," and that sellers were listing products that carried tens of thousands of unverified reviews. In August 2020, a USC/UCLA research paper analyzed the market for fake reviewed products on Amazon.com. The paper found that the "vast majority" (84%) of sellers benefitting from fake reviews were located in China. In September 2020, The Financial Times published an article entitled "Amazon deletes 20,000 reviews after evidence of profits for posts." The article stated that Amazon had deleted 20,000 product reviews written by 7 of its top 10 UK reviewers. On March 1, 2021, a data security organization, Safety Detectives, obtained access to a data server located in China that contained 7GB of data and over 13 million records appearing to be linked to a widespread fake review scam. Leading up to the IPO, Tuya claimed to be experiencing phenomenal growth. In 2020, the Company claimed that its technology powered over 116.5 million smart devices in more than 1,100 product categories sold in over 220 countries and regions globally. Tuya claimed to be the "largest IoT PaaS business in the global market of IoT PaaS in terms of the volume of smart devices powered" and stated that its "business ha[d] scaled rapidly in recent periods," growing revenue by 70% YOY to $179.9 million in 2020. On February 26, 2021, Tuya filed a registration statement on Form F-1, which after amendments on March 12 and 16, 2021, was declared effective on March 17, 2021. On March 19, 2021, the Company filed a prospectus for the Initial Public Offering ("IPO") on Form 424B4, which incorporated and formed part of the Registration Statement. The Registration Statement was used to sell over 45 million Tuya ADR's at $21 per ADR, generating over $946 million in proceeds. On May 11, 2021, an article on techcrunch.com revealed that "several top Chinese sellers disappeared from Amazon." The report stated that over 13.1 million records documenting a massive fake review scam had been uncovered involving more than 200,000 Amazon accounts. Two months later, on July 9, 2021, verdict.co.uk reported that Amazon had "closed 340 online stores of one of its largest Chinese retailers in the first half of this year" as it cracked down against paid reviews and other violations of Amazon terms of service. According to the report, Amazon banned hundreds of Chinese brands across thousands of sellers' account, many of which were clients of Tuya, citing repeated and significant violations. Then on August 18, 2021, Tuya issued a press release announcing the Company's financial results for 2Q 2021. The release guided the Company's outlook for 3Q 2021, which stated Tuya expects revenue to be in a range of just $83 million to $86 million, which surprised and disappointed analysts and investors. During the earnings call on that same day, management revealed that the reason for the low 3Q revenue forecast was that "our customers face a series of challenges, including Amazon's strict execution of the seller policy." By August 2022, Tuya ADR had declined below $2 per ADR - 90% below where Tuya ADR's were sold to the investing public in the IPO. Wolf Haldenstein has extensive experience in the prosecution of securities class actions and derivative litigation in state and federal trial and appellate courts across the country. The firm has attorneys in various practice areas; and offices in New York, Chicago and San Diego. The reputation and expertise of this firm in shareholder and other class litigation has been repeatedly recognized by the courts, which have appointed it to major positions in complex securities multi-district and consolidated litigation. If you wish to discuss this action or have any questions regarding your rights and interests in this case, please immediately contact Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at classmember@whafh.com, or visit our website at www.whafh.com. Contact: Wolf Haldenstein Adler Freeman & Herz LLP Patrick Donovan, Esq. Gregory Stone, Director of Case and Financial Analysis Email: gstone@whafh.com, donovan@whafh.com or classmember@whafh.com Tel: (800) 575-0735 or (212) 545-4774 This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. [GN] UMG COMMERCIAL SERVICES: Maddy Files ADA Suit in S.D. New York -------------------------------------------------------------- A class action lawsuit has been filed against UMG Commercial Services, Inc. The case is styled as Veronica Maddy, on behalf of herself and all others similarly situated v. UMG Commercial Services, Inc., Case No. 1:22-cv-07003 (S.D.N.Y., Aug. 17, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. UMG Commercial Services, Inc. -- https://www.universalmusic.com/ -- is a music management and promotion in Santa Monica, California.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com UNITED NATURAL: Gonzalez Sues Over Failure to Timely Pay Wages -------------------------------------------------------------- DAJEAN GONZALEZ, individually and on behalf of all others similarly situated, Plaintiff v. UNITED NATURAL FOODS, INC., Defendant, Case No. 7:22-cv-07067 (S.D.N.Y., August 18, 2022) brings this complaint as a class action against the Defendant for its alleged violation of the New York Labor Law. The Plaintiff was employed by the Defendant from approximately 2015 to 2018 as a Cross Dock Associate and then as an Inventory Analyst at an UNFI distribution center in Montgomery, New York. The Plaintiff asserts that the Defendant failed to pay her and other similarly situated manual workers on a timely basis. Instead of paying them weekly, the Defendant paid them every other week or on a bi-weekly basis. As a result of the Defendant's unlawful pay practice, the Plaintiff and other similarly situated manual workers were injured in that they were temporarily deprived of money owed to them, and they could not invest, earn interest on, or otherwise use these monies that were rightfully theirs. On behalf of herself and all other similarly situated employees, the Plaintiff seeks judgment against the Defendant for liquidated damages, prejudgment interest on all amounts awarded, reasonable attorneys' fees, expenses, and litigation costs, and an order declaring the Defendant's conduct violates the law. United Natural Foods, Inc. is a natural and organic food company. [BN] The Plaintiff is represented by: Yitzchak Kopel, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Tel: (646) 837-7150 Fax: (212) 989-9163 E-mail: ykopel@bursor.com aleslie@bursor.com VALVE CORP: Antitrust Suit Parties to File Joint Scheduling Order ----------------------------------------------------------------- In the case, In re VALVE ANTITRUST LITIGATION, 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, orders the parties to meet and confer and provide the Court with a joint proposed scheduling order for the matter through summary judgment briefing. The matter comes before the Court on the parties' LCR 37(a)(2)(I) submission. They seek expedited rulings on the anticipated case schedule and what, if any, limitations should apply to the submission of dispositive motions. The parties first debate whether class certification expert reports are best exchanged concurrent or prior to class certification briefing, and whether the Plaintiffs may submit a certification expert rebuttal report supporting their reply brief. Judge Coughenour concludes that it would be most efficient, and consistent with comparable actions, for the parties to submit expert certification reports concurrent to their briefing. Moreover, given the Plaintiffs' burden on certification, they should be permitted to submit an expert certification rebuttal along with their reply brief. The parties next debate whether the Defendant should be prohibited from (a) again moving to dismiss the Plaintiffs' anticipated consolidated class action complaint, so long as it contains no new substantive allegations, and (b) filing successive summary judgment motions. The Plaintiffs contend these limitations are necessary and in the interest of efficiency. Judge Coughenour disagrees, holding that neither would be consistent with the Local Rules nor necessary to fairly and expeditiously move the matter forward. With this guidance in mind, he orders the parties to meet and confer and provide the Court with a joint proposed scheduling order for the matter through summary judgment briefing within 10 days of the Order. If the parties are unable to do so, they may submit a renewed LCR 37(a)(2)(I) filing regarding the remaining disputed issues associated with a case management schedule. A full-text copy of the Court's Aug. 16, 2022 Order is available at https://tinyurl.com/58dma7te from Leagle.com. VIRGIN SCENT: Files 9th Cir Appeal Over Remand Order in Deans Suit ------------------------------------------------------------------ VIRGIN SCENT, INC., et al., are appealing a remand order in the lawsuit captioned as Pamela Deans, individually and on behalf of all others similarly situated, Plaintiff, v. Virgin Scent, Inc., et al., Defendants, Case No. 3:22-cv-00164-BTM-BGS, in the U.S. District Court for the Southern District of California. As previously reported in the Class Action Reporter, this lawsuit, removed from the Superior Court of the State of California, County of San Diego, to the U.S. District Court of the Southern District of California on February 2, 2022, claims that the Defendants violated state consumer protection and public safety laws by failing to disclose to consumers that their hand sanitizer products contain a high level of benzene. On July 25, 2022, District Judge Barry Ted Moskowitz ordered the remand of the case to state court. The appellate case is captioned as Pamela Deans v. Virgin Scent, Inc., et al., Case No. 22-80074, in the United States Court of Appeals for the Ninth Circuit, filed on August 4, 2022. [BN] Plaintiff-Respondent PAMELA DEANS, individually and on behalf of all others similarly situated, is represented by: Kas Gallucci, Esq. Michael Houchin, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Defendants-Petitioners VIRGIN SCENT, INC., et al., are represented by: D. Matthew Allen, Esq. CARLTON FIELDS, LLP 4221 West Boy Scout Boulevard Tampa, FL 33607 Telephone: (813) 223-7000 - and - Stephanie G. Chau, Esq. CARLTON FIELDS, LLP 2029 Century Park East, Suite 1200 Los Angeles, CA 90067-2913 Telephone: (310) 843-6300 - and - Nathaniel Garrett Foell, Esq. CARLTON FIELDS, PA 4221 W. Boy Scout Boulevard, Suite 1000 Tampa, FL 33607-5780 Telephone: (813) 229-4188 WELLS FARGO: Stockholders Class Certified in Purple Mountain Suit ----------------------------------------------------------------- Judge James Donato of the U.S. District Court for the Northern District of California grants the motion to certify class filed by the Lead Plaintiff in the lawsuit entitled PURPLE MOUNTAIN TRUST, Plaintiff v. WELLS FARGO & COMPANY, et al., Defendants, Case No. 18-cv-03948-JD (N.D. Cal.). The lawsuit is a putative securities class action against Defendants Wells Fargo and its former CEO, Timothy Sloan (together, Wells Fargo). Purple Mountain Trust is out of the case, and the Construction Laborers Pension Trust for Southern California (Construction Laborers) is now the Lead Plaintiff on behalf of persons, who purchased or acquired Wells Fargo common stock between Nov. 3, 2016, and Aug. 3, 2017. The operative complaint alleges claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5. The Court sustained the Section 10(b) and Rule 10b-5 claims based on two alleged misstatements, and dismissed all other claims. Construction Laborers asks to certify a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. Wells Fargo opposes certification on the grounds that common questions do not predominate for reliance and damages. Rule 23(a)(1) requires that a putative class be so numerous that joinder of all members is impracticable. Construction Laborers states, with evidentiary support, that there were approximately 5 billion shares of Wells Fargo common stock outstanding as of July 2016, and that the total trading volume for Wells Fargo common stock was over 3.8 billion shares during the class period. The Court infers that the proposed class of stockholders is sufficiently numerous when a corporation has millions of shares trading on a national exchange. Wells Fargo does not contest numerosity, and the Court finds that the requirement is satisfied. Wells Fargo also does not contest typicality or adequacy, and the Court finds the requirements are met. Construction Laborers seeks certification under Rule 23(b)(3), which sets out the related but nonetheless distinct requirement that common questions of law or fact predominate over individual ones. Construction Laborers says that commonality exists because all putative class members were injured by the same misstatements over the same time period. Wells Fargo does not contest commonality, and the Court finds that the requirement is met. Wells Fargo's only objection to certification is lack of predominance under Rule 23(b)(3). The Court's predominance analysis begins, of course, with the elements of the underlying cause of action. To establish liability under Section 10(b) and Rule 10b-5, Construction Laborers must show (1) a material misrepresentation or omission by Wells Fargo (falsity); (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance on the misrepresentation or omission; (5) economic loss (damages); and (6) loss causation. Construction Laborers says that it is entitled to a presumption of classwide reliance under Basic, Inc. v. Levinson, 485 U.S. 224, 245-47 (1988). The Basic presumption is essential to a securities class action because individual questions of reliance would predominate otherwise. Judge Donato notes that to trigger the presumption, Construction Laborers must demonstrate that: (1) the alleged misrepresentations were publicly known; (2) Wells Fargo's common stock traded in an efficient market; and (3) the relevant transaction took place between the time the misrepresentations were made and the time the truthful disclosures were made. The first and third elements are not in dispute, Judge Donato states. The record demonstrates that the misrepresentations were public, and that Construction Laborers purchased Wells Fargo stock between the dates of the misrepresentations and corrective disclosures. Wells Fargo challenges only the second element, and says that Construction Laborers has not proven that Wells Fargo stock traded in an efficient market and consequently is not entitled to the Basic presumption. In an efficient market, stock prices reflect public information. Judge Donato notes that many courts, including the Ninth Circuit, use the five-factor test in Cammer v. Bloom, 711 F.Supp. 1264 (D.N.J. 1989), to assess market efficiency. The Cammer factors are: "first, whether the stock trades at a high weekly volume; second, whether securities analysts follow and report on the stock; third, whether the stock has market makers and arbitrageurs; fourth, whether the company is eligible to file a short form registration statement with the SEC; and fifth, whether there are 'empirical facts showing a cause and effect relationship between unexpected corporate events or financial releases and an immediate response in the stock price.'" The Cammer factors set a high bar and demand rigorous analysis. Wells Fargo does not dispute the first four Cammer factors, and Construction Laborers and its expert, Bjorn Steinholt, have presented a good evidentiary basis for concluding that Wells Fargo stock traded in an efficient market during the class period. For factor one, Steinholt determined that Wells Fargo stock traded at an average weekly volume of approximately 2% of total shares outstanding -- a volume that supports a strong presumption of market efficiency. For factor two, Steinholt determined that Wells Fargo was covered by more than 30 analyst firms and was the subject of at least 250 analyst reports during the class period. This broad level of coverage indicates that the market would rapidly and fully incorporate information into the stock price because analyst reports would likely be closely reviewed by investors. Steinholt also found that Cammer factors three and four evidenced market efficiency. Wells Fargo stock was subject to designated market makers as it traded on the NYSE, and the company was eligible to file a short form registration statement during the class period. Wells Fargo challenges only Steinholt's analysis of Cammer factor five: whether there is a cause-and-effect relationship between company news days and movement in the stock price. To satisfy this factor, Steinholt conducted an event study in which he used a regression analysis to determine the statistical relationship between the returns of Wells Fargo stock and the returns of the S&P 500 and KB Nasdaq Bank indices. He then assessed Wells Fargo's stock price reactions following selected event days to calculate the return not attributable to market or industry factors. Specifically, Steinholt analyzed the stock price reactions following eight of Wells Fargo's quarterly earnings announcements during fiscal 2016 and 2017 and found statistically significant stock price movements on five dates. He also analyzed the stock price reactions following the two alleged corrective disclosures on July 27, 2017, and Aug. 4, 2017, and found statistically significant price declines on both dates. Steinholt concluded that Cammer factor five was satisfied and supported a conclusion that Wells Fargo stock traded in an efficient market. Wells Fargo objects to the event study on multiple grounds. To start, it says that the analysis of earnings announcements cannot support an inference that the market reacted efficiently to the misstatements. The earnings announcements are uniquely "informationally dense," regularly scheduled, "highly publicized," and "closely scrutinized" by the market, and Steinholt "failed to analyze a single news date comparable to those at issue here -- i.e., dates on which oral statements were made to analysts at a conference or dates on which written responses to questions from Congress were submitted." Wells Fargo also suggests that Steinholt's analysis of the corrective disclosure dates proves nothing because he knew those days were highly likely to have statistically significant price movement based on the allegations in the amended complaint. None of these points is well taken, Judge Donato says. He finds that Wells Fargo does not offer any evidence to demonstrate market inefficiency, nor does it identify any days that, had they been tested, would undermine Steinholt's findings. Overall, it simply snipes at Steinholt's work, without taking the step of proffering any evidence that might show that the market was inefficient in any way. So too for Wells Fargo's complaint that Steinholt did not test enough event days. Wells Fargo says that he analyzed only three earnings announcements during the class period, and found statistically significant price movement on just one date. This argument glosses over the fact that Steinholt found statistically significant price movement at the one percent level on that date, Judge Donato points out. The cumulative probability for such a finding is well below Steinholt's five percent benchmark for statistical significance. In addition, a similar number of event days is typically accepted as sufficient proof of a cause-and-effect relationship. Wells Fargo's closing objection is that Steinholt did not hypothesize about the direction the stock price would move on each event day. Judge Donato opines that the problem for Wells Fargo is that it did not identify any decision or rule demanding such a hypothesis. It may be that Steinholt's analysis would have taken on a little extra heft if he had theorized about the direction of the price movements, or said more about how the news disclosed on each event day was consistent with the price movement. But Wells Fargo did not show that this additional commentary would have changed the outcome of Steinholt's findings in a meaningful way, and certainly did not demonstrate that his work should be thrown out for this reason. On that score, it is worth noting that Wells Fargo does not seek to exclude Steinholt's testimony. Nor does Wells Fargo dispute Steinholt's other analyses that suggest the market was efficient, Judge Donato holds. Steinholt found that, throughout the class period, Wells Fargo common stock had a large market capitalization of more than $220 billion, a small bid-ask spread of approximately $0.01 per share, and a large public float of more than $200 billion, and consequently satisfied the three additional market efficiency factors outlined in Krogman v. Sterritt, 202 F.R.D. 467, 478 (N.D. Tex. 2001). And while not dispositive of market efficiency, the fact that Wells Fargo stock is listed on the NYSE, a highly regarded and well-regulated exchange, strongly indicates that it trades in an efficient market. Consequently, Judge Donato finds that Construction Laborers has established market efficiency by a preponderance of the evidence. It is entitled to the presumption of classwide reliance afforded by the fraud-on-the-market theory. Construction Laborers must demonstrate that "damages are capable of measurement on a classwide basis" to satisfy predominance. Construction Laborers and Steinholt say that "out of pocket" damages can be measured on a classwide basis by using an event study to quantify the per share price decline that occurred upon the disclosure of Wells Fargo's alleged fraud. Judge Donato finds that Construction Laborers has shown by a preponderance of the evidence that damages are capable of measurement on a classwide basis consistent with its theory of liability. Wells Fargo objects that the proposed damages methodology is a "nearly verbatim copy" of the methodology Steinholt has described for other securities cases and that Steinholt's report does not adequately explain how an event study will isolate damages related to the theory of liability in this case. Why Wells Fargo believes these to be fatal flaws is left unsaid, Judge Donato notes. Event studies along the lines prepared by Steinholt are widely accepted, and the fact that he did one in other cases does not detract from that in any way. Judge Donato points out that Wells Fargo's suggestion that Steinholt has not described how his methodology will disaggregate the effects of dismissed claims, confounding information, or changing knowledge or circumstances, is not a bar to certification. Construction Laborers has consequently established predominance under Rule 23(b)(3). The final certification question is whether certification will serve the ends of justice and efficiency. Rule 23(b)(3) requires a finding that proceeding as a class is superior to other means of adjudication, which in this case would mean individual actions by each putative class member. That is the situation here, Judge Donato holds. The putative class likely consists of thousands of investors, and resolving the dispute in a single class action would be far more efficient than litigating thousands of individual cases. Wells Fargo does not dispute superiority, and the Court finds that Rule 23(b)(3) is satisfied. The Court, therefore, certifies a class of all persons and entities who purchased or otherwise acquired the common stock of Wells Fargo & Co. during the period from Nov. 2, 2016, through Aug. 3, 2017, inclusive and were damaged thereby. Excluded from the Class are the Defendants, present or former executive officers of Wells Fargo and their immediate family members. Construction Laborers Pension Trust for Southern California is appointed class representative, and Robbins Geller Rudman & Dowd LLP is appointed class counsel. Construction Laborers is directed to submit by Sept. 1, 2022, a proposed plan for dissemination of notice to the class. The parties are directed to meet and confer in advance of submitting the plan so that the proposal can be submitted on a joint basis. A full-text copy of the Court's Order dated Aug. 15, 2022, is available at https://tinyurl.com/3s5szh6d from Leagle.com. WHOLESALE FURNITURE: Cromitie Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Wholesale Furniture and Mattress, Inc. The case is styled as Seana Cromitie, on behalf of herself and all others similarly situated v. Wholesale Furniture and Mattress, Inc., Case No. 1:22-cv-07026-KPF (S.D.N.Y., Aug. 17, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Wholesale Furniture and Mattress, Inc. -- https://www.wholesalefurniturenow.com/ -- offers flexsteel, lane furniture and restonic mattresses in Winthrop, New York.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com WILLIAM DOUGLAS: Great Point Sues Over Breach of Fiduciary Duty --------------------------------------------------------------- Great Point Capital, LLC, individually and on behalf of all others similarly situated v. WILLIAM DOUGLAS JACOB, SANDY BEALL, KEVIN REDDY, MICHAEL LASTORIA, RAMIN ARANI, ALICE ELLIOT, SANJAY CHADDA, STEVE KASSIN, FAST SPONSOR, LLC, and FAST ACQUISITION CORP., Case No. 2022-0726- (Del. Chancery Ct., Aug. 17, 2022), is brought against FAST Acquisition Corp. ("FAST" or the "Company"), FAST Sponsor, LLC (the "Sponsor"), the founder of FAST, William Douglas Jacob, and the members of FAST's board of directors: Sandy Beall, Kevin Reddy, Michael Lastoria, Ramin Arani, Alice Elliot, Sanjay Chadda, and Steve Kassin (the "Director Defendants") to assert claims for breach of fiduciary duty and unjust enrichment and seeks an accounting of the $7 million in funds that FAST received as a result of the termination of the Fertitta transaction. On February 1, 2021, the Company entered into an agreement and plan of merger ("Merger Agreement") with Fertitta Entertainment, Inc. Inexplicably, the Merger Agreement did not include a termination fee clause that is standard in similar merger agreements. On November 24, 2021, FAST filed a definitive proxy statement in connection with a special meeting, to be held on December 14, 2021, at which the Company's stockholders would vote on the proposed merger. Two weeks prior to the stockholders' vote on the proposed merger, Fertitta aborted the deal. As a result of the failed merger, Fertitta paid FAST a $6 million termination fee and a $1 million loan. Fertitta also agreed to pay an additional $26 million in the event FAST failed to "consummate an initial business combination and determines to redeem its public shares and liquidate and dissolve." On August 10, 2022, FAST issued a press release announcing that FAST would redeem all of the outstanding shares of Class A common stock from the funds in the Trust Account. The press release further stated that none of FAST's remaining net assets--approximately $23.7 million would be distributed to holders of the Class A stockholders. Rather, all of those assets would be diverted to the Sponsor (and then to the Defendants as owners of the Sponsor) would take the $23.7 million for itself through a distribution to the Sponsor Shares after the Public Shares are redeemed. The right to the termination payments was required to be for the benefit of all stockholders. The Defendants were required to negotiate the Merger Agreement and Settlement in the best interests of all FAST stockholders, as fiduciaries, owed the duties of care and loyalty to FAST and its stockholders and at all times were required to act in the best interests of all FAST stockholders. The Defendants had full power and authority to distribute FAST's assets equitably, including through a special dividend or in connection with the redemption of Public Shares. Instead, they chose to take the assets for themselves at the expense of stockholders to whom they owed fiduciary duties. The Defendants' decision to eliminate FAST's Class A stockholders and take the assets for themselves is contrary to Delaware law. FAST has repeatedly referred to the Amended and Restated Certificate of Incorporation of FAST Acquisition Corp. (the "Certificate") to suggest that holders of Public Shares are not entitled to distribution of FAST's assets other than the principal of the Trust Account and interest accrued thereon. However, once the Company begins the winding up process, the Defendants' fiduciary duties require that they maximize the value of Public Shares by distributing (i) the assets in the Trust Account, to which the holders balance of the Company's assets, including proceeds realized from the Settlement Agreement. Using their fiduciary positions of control to redeem the Public Shares before ceasing operations to wind up the Company's business to take for themselves $26 million of Company assets constitutes unfair self-dealing in breach of Defendants' fiduciary duties. The fact that the redemption mechanism is controlled by Defendants and would leave only Defendants as stockholders in a liquidation does not avoid Defendants' fiduciary duties and breaches in doing so, says the complaint. The Plaintiff Great Point Capital, LLC is a current stockholder of FAST. FAST is a special purpose acquisition corporation incorporated in Delaware by FAST Sponsor, LLC on June 4, 2020.[BN] The Plaintiff is represented by: Robert J. Kriner, Jr., Esq. Scott M. Tucker, Esq. CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH LLP 2711 Centerville Rd., Suite 201 Wilmington, DE 19808 Phone: (302) 656-2500 - and - Nicholas E. Chimicles, Esq. Kimberly M. Donaldson Smith, Esq. CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH LLP 361 West Lancaster Avenue One Haverford Centre Haverford, PA 19041 Phone: 610-642-8500 Email: nec@chimicles.com kds@chimicles.com WILLIAMS TANK LINES: Fleming Files Suit in Cal. Super. Ct. ---------------------------------------------------------- A class action lawsuit has been filed against Williams Tank Lines. The case is styled as Terry Fleming, individually and on behalf of all others similarly situated v. Williams Tank Lines, Case No. STK-CV-UOE-2022-0006642 (Cal. Super. Ct., San Joaquin Cty., Aug. 1, 2022). The case type is stated as "Unlimited Civil Other Employment." Williams Tank Lines -- http://williamstanklines.com/-- is a trucking company in Stockton, California.[BN] The Plaintiff is represented by: Craig Ackermann, Esq. ACKERMANN AND TILAJEF PC 1180 S Beverly Drive, Suite 610 LOS ANGELES, CA 90035 Phone: (310) 277-0614 Email: cja@ackermanntilajef.com WYETH BIRCH: Cromitie Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Wyeth Birch, LLC. The case is styled as Seana Cromitie, on behalf of herself and all others similarly situated v. Wyeth Birch, LLC, Case No. 1:22-cv-07019-PAE-JLC (S.D.N.Y., Aug. 17, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Wyeth Birch -- https://wyeth.nyc/ -- is a furniture stores in New York City offering home furniture, furnishings and equipment.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com YUMA REGIONAL MEDICAL: Chacon Files Suit in D. Arizona ------------------------------------------------------ A class action lawsuit has been filed against Yuma Regional Medical Center. The case is styled as Charles Chacon, an individual, and on behalf of classes of similarly situated individuals v. Yuma Regional Medical Center, Case No. 2:22-cv-01392-SRB (D. Ariz., Aug. 17, 2022). The nature of suit is stated as Other Personal Property. Yuma Regional Medical Center -- https://www.yumaregional.org/Home -- is a 406-bed, not-for-profit hospital dedicated to providing outstanding medical care to the residents of Yuma and the surrounding communities.[BN] The Plaintiff is represented by: C Lincoln Combs, Esq. O'STEEN & HARRISON PLC 300 W Clarendon Ave., Ste. 400 Phoenix, AZ 85013-3424 Phone: (602) 252-8888 Fax: (602) 274-1209 Email: lcombs@vanosteen.com - and - Kiley L Grombacher Marcus J Bradley BRADLEY GROMBACHER LLP 31365 Oak Crest Dr., Ste. 240 Westlake Village, CA 91361 Phone: (805) 270-7100 Fax: (805) 270-7589 ********* 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 ***