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              C L A S S   A C T I O N   R E P O R T E R

              Friday, October 14, 2022, Vol. 24, No. 200

                            Headlines

24 CARROTS: Siguenza's Appeal From Arbitration Order Dismissed
918 JAMES: Appeal From Class Certification in Farruggio Suit Nixed
AETNA HEALTH: California Court Dismisses Saloojas Class Complaint
ALAMO OILFIELD: Fails to Pay Proper OT Wages, Smith Suit Says
ALBUQUERQUE, NM: Summary Judgment in Prescott v. BOE Affirmed

ALLEN DISTRIBUTION: Strawser Labor Suit Removed to E.D. California
ALLIANCE COAL: Must Face FLSA Class Action, S.D. Ill. Rules
AMAZON.COM SERVICES: Bid to Dismiss Del Rio Suit Granted in Part
AMERICAN GENERAL: Judge Refuses to Certify Insurance Class Action
ANCESTRY.COM DNA: Court Denies Bid for Arbitration in Coatney Suit

APTDECO INC: Court Grants in Part Bids to Stay or Dismiss King Suit
AUSTRALIA: Banksia Hill Youth Detainees Set to Begin Class Action
B&G FOODS: Illinois Court Denies Bid to Dismiss Strow Class Suit
BALL STATE: Class Action Over COVID-Related Closures Can Proceed
BIG BISCUIT: Oakes Sues Over Servers' Unpaid Minimum, OT Wages

BOND PHARMACY: Fifth Circuit Affirms Dismissal of Denning's Claims
BP PLC: Judge Tosses Gas Price-Fixing Class Action Lawsuit
BRISTOL-MYERS SQUIBB: Bernstein Suit Remanded to State Court
CALIBER HOME: Faces Katz Class Suit Over Telemarketing Calls
CENTERPLATE INC: Dougan Labor Suit Removed to S.D. California

CHARLES SCHWAB: Laughead Sues Over Biometric Voice Print Recording
CHIN CHIN: Faces Guadalupe Wage-and-Hour Suit in California
COAST DENTAL: Faces Davis Suit Over Illegal Phone Calls
CONAGRA BRANDS: Court Grants Bid to Dismiss Huston Class Suit
COOK COUNTY, IL: Bid for Summary Judgment in Alicea v. Dart Granted

COOK COUNTY, IL: Court Decertifies Inmates Class in Bennett Suit
CYBEROPTICS CORP: M&A Probes Possible Securities Class Action
DR. DAVID BROADBENT: Judge Overturns Sexual Abuse Class Action
FREEDOM OF EXPRESSION: Exotic Dancers Class Certified in Washington
GOOGLE LLC: Among Large Companies Facing VPPA Class Action Suit

HARVEY WEINSTEIN: Oral Arguments in Sex Crimes Suit Set Oct. 24
HERNAN AND BROTHER: Faces Morocho Wage-and-Hour Suit in E.D.N.Y.
HILL INTERNATIONAL: M&A Probes Possible Securities Class Action
HOME BUYERS: Order Compelling Arbitration in Vitiello Suit Affirmed
HUMBOLDT COUNTY, CA: Faces Suit Over Cannabis Abatement Program

IFIT HEALTH: Faces Class Suit Over Defective Home Fitness Equipment
IROBOT CORP: M&A Law Firm Probes Possible Securities Class Action
KALITTA AIR: Faces Discrimination Suit From Unvaccinated Employees
L'OREAL USA: Raslavich Sues Over Unsolicited Telephonic Calls
LOANDEPOT INC: Faces Smith Suit Over Unsolicited Telephone Calls

MANHATTAN LUXURY: Troutman Firm Discusses Ruling in DNC Class Suit
MCDERMOTT INT'L: Edwards' Supplemental Class Complaint Dismissed
MDL 2913: Crawfordsville School Sues Over Youth E-Cigarette Crisis
MDL 3043: 18 Suits Consolidated in Acetaminophen Liability Row
MDL 3047: Court Transfers 28 Suits to N.D. Cal.

MG BILLING: Court Grants in Part Bid to Dismiss Vandiver Class Suit
MONTANA SKY: Court Denies Bid for Summary Judgment in Guy Suit
MUSHRUSH UTILITY: Conner Seeks Proper Overtime Wages
PALO ALTO, CA: Faces Class Action Over Utility Bills' Illegal Tax
PAPA JOHN'S: Kauffman Files Suit for Breach of Wiretap Act

POSHMARK INC: M&A Probes Possible Securities Class Action Suit
PRIMESOURCE BUILDING: Remand of Hodgens Suit to State Court Denied
RYANAIR HOLDINGS: Birmingham Can't Amend Complaint, Court Rules
SAC ADVISORY: Nanya Suit Dismissed Over Lack of Jurisdiction Issue
SENTARA RMH: Faces Class Suit for Improper Medical Services Billing

SNOW COSMETICS: New York Court Tosses False Ads Class Action
STATE FARM: Class Settlement in Arnold Suit Wins Final Approval
STATE FARM: Discriminates African-American Agents, Richardson Says
TRIBUCHA INC: Non-Alcoholic Kombucha Over the Limit, Suit Says
UNITED STATES: Court Approves Class Settlement in Calixto v. Army

UNITEDHEALTH GROUP: S.D. New York Dismisses Podiatric OR Suit
UNIVERSITY OF MONTANA: Judge Won't Certify Gender Bias Lawsuit Yet
UNIVERSITY OF NORTH CAROLINA: Retention of Lannan's Claims Upheld
UNIVERSITY OF SOUTH FLORIDA: Denial of Moore Suit Dismissal Upheld
VIVA ITALIA!: Healy Sues Over Unpaid Minimum and Overtime Wages

WALMART INC: Faces Suit Over Mislabeled Great Value Veggie Straws
WHITE SHEEP: Prate Seeks Tips, Minimum Wages for Restaurant Servers
[*] 11th Cir. Court May See Downturn in OD/NSF Fee Class Actions

                        Asbestos Litigation

ASBESTOS UPDATE: Colgate Palmolive Faces Exposure Lawsuits
ASBESTOS UPDATE: J&J Wins Bankruptcy Pause on States' Talc Suits


                            *********

24 CARROTS: Siguenza's Appeal From Arbitration Order Dismissed
--------------------------------------------------------------
In the case, PRISCILLA SIGUENZA, Plaintiff and Appellant v. 24
CARROTS, LLC, et al., Defendants and Respondents, Case No. G060388
(Cal. App.), the Court of Appeals of California for the Fourth
District, Division Three, dismisses Siguenza's appeal from the
trial court's order granting the Defendants' petition to compel
arbitration.

On April 24, 2019, Siguenza applied for a job as a pastry cook with
Defendants 24 Carrots, LLC, 24 Carrots Special Events, Inc., and 24
Carrots Catering and Events. Pastry chef Margeaux Aragon
interviewed Siguenza. In Aragon's presence, Siguenza reviewed,
completed, and signed an application packet containing an employee
hire sheet, an employment application, and a notice to employee.
Siguenza worked for the Defendants from April through November
2019.

In September 2020, Siguenza sued the Defendants, on behalf of
herself and a class of similarly situated individuals, for
violations of the Labor Code and violation of Business and
Professions Code section 17200 (the Class Action). In November
2020, Siguenza filed a complaint against the Defendants
individually and on behalf of other aggrieved employees under the
California Private Attorneys General Act (the PAGA Action). The
PAGA Action asserts the same alleged Labor Code violations against
the Defendants as those asserted in the Class Action.

The Defendants filed a petition to compel arbitration based on
Siguenza's written arbitration agreement. They also filed a motion
to dismiss Siguenza's class claims.

Before the petition to compel arbitration and the motion to dismiss
were heard, Siguenza filed a first amended complaint in the Class
Action which added a new named plaintiff, Luis Mendez Noyola. The
first amended complaint alleged all the same causes of action
against the Defendants. Noyola brought his claims as an individual
and as a representative of the putative class members.

In a minute order dated May 5, 2021, the trial court granted the
Defendants' petition to compel arbitration of Siguenza's individual
claims and motion to dismiss her class claims, stayed Noyola's
individual and class claims, and stayed the PAGA Action. Siguenza
filed a notice of appeal.

The Court of Appeals explains that the existence of an appealable
order or judgment is a jurisdictional prerequisite to an appeal. An
appeal from a judgment or order that is not appealable must be
dismissed. An order granting a petition to compel arbitration is
not an appealable order.

Ms. Siguenza does not dispute that the order is not appealable, but
argues that the Court of Appeals should nevertheless entertain
jurisdiction over it pursuant to the death knell doctrine, which
"provides that an order which allows a plaintiff to pursue
individual claims, but prevents the plaintiff from maintaining the
claims as a class action is immediately appealable because it
'effectively rings the death knell for the class claims.'" To be
appealable under the death knell doctrine (1) the order must be a
de facto final judgment for the absent plaintiffs, and (2) a formal
final judgment may never be entered because the Individual
Plaintiff's claims are viable but de minimis.

In the instant case, the PAGA claim is stayed awaiting resolution
of the individual arbitrable claims, and in neither has the death
knell rung on the representative claims. Further, because the
individual and representative class claims of a separate named
plaintiff are stayed, the claims themselves are not subject to the
death knell doctrine.

In the present case, the PAGA claim remains but is stayed.
Additionally, in the case, another named plaintiff has been added
to the case, and his individual and class claims remain stayed
before the trial court. Under these circumstances there is even
less likelihood that a formal final judgment will not be entered on
the class' claims.

The Court of Appeals concludes that while the class claims Siguenza
sought to represent have been dismissed, the PAGA claims and
Noyola's individual and class claims have all been stayed, not
dismissed. An order granting a petition to compel arbitration is
not an appealable order. The case does not come within the "death
knell" exception to the nonappealability rule. The order compelling
arbitration of Siguenza's individual claims and dismissal of her
class claims is not the death knell of the class' claims because
the class' PAGA claims and the newly named plaintiff's individual
and class claims are still pending. Hence, the appeal from a
nonappealable order must be dismissed.

For these reasons, the appeal is dismissed. The Respondents will
recover costs on appeal.

A full-text copy of the Court's Oct. 4, 2022 Opinion is available
at https://tinyurl.com/6k2kj7j from Leagle.com.

Protection Law Group, Heather Davis --
heather@protectionlawgroup.com -- Amir Nayebdadash --
amir@protectionlawgroup.com -- and Priscilla Gamino --
priscilla@protectionlawgroup.com -- for the Plaintiff and
Appellant.

Law Office of Brian R. Weilbacher, Brian R. Weilbacher; Ferguson
Case Orr Paterson and John A. Hribar -- jhribar@fcoplaw.com -- for
the Defendants and Respondents.


918 JAMES: Appeal From Class Certification in Farruggio Suit Nixed
------------------------------------------------------------------
In the case, MICHAEL FARRUGGIO, AS EXECUTOR OF THE ESTATE OF
THERESA FARRUGGIO, DECEASED, and SUSAN KARPEN, INDIVIDUALLY, AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Respondents v.
918 JAMES RECEIVER, LLC, ET AL., Defendants, and RIVER MEADOWS,
LLC, Defendant-Appellant, Case No. 995/19 CA 18-01595 (N.Y. App.
Div.), the Appellate Division of the Supreme Court of New York,
Fourth Department, unanimously dismissed without costs the appeal
from the order of Judge Anthony J. Paris of the Supreme Court,
Onondaga County, entered Aug. 21, 2018.

The order, among other things, granted in part the Plaintiffs'
motion for class action certification and denied the cross motion
of River Meadows for severance. Upon reading and filing the
stipulation of discontinuance signed by the attorneys for the
parties on Aug. 10, 2022, the Appellate Division unanimously
dismissed said appeal without costs upon stipulation.

A full-text copy of the Court's Sept. 30, 2022 Order is available
at https://tinyurl.com/aya2mwef from Leagle.com.

GOLDBERG SEGALLA, LLP, SYRACUSE (LISA M. ROBINSON --
lrobinson@goldbergsegalla.com -- OF COUNSEL), FOR THE
DEFENDANT-APPELLANT.

FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP, WHITE PLAINS
(JEREMIAH FREI-PEARSON OF COUNSEL), FOR THE
PLAINTIFFS-RESPONDENTS.


AETNA HEALTH: California Court Dismisses Saloojas Class Complaint
-----------------------------------------------------------------
In the case, SALOOJAS, INC., Plaintiff v. AETNA HEALTH OF
CALIFORNIA, INC., Defendant, Case No. 22-cv-02887-JSC (N.D. Cal.),
Judge Jacqueline Scott Corley of the U.S. District Court for the
Northern District of California grants the Defendant's motion to
dismiss.

The Plaintiff, a healthcare provider, brings a putative class
action against an insurer for underpaying for COVID tests provided
to its insureds. It has operated seven specimen collection sites to
provide COVID testing. The Plaintiff is outside the Defendant's
provider network. It alleges the Defendant has incorrectly
adjudicated and denied the majority of its claims for reimbursement
for providing COVID testing to members of the Defendant's insurance
plans and "Employer Plans" administered by it.

The Plaintiff asserts that under Sections 3201 and 3202(a)(2) of
the Coronavirus Aid, Relief, and Economic Security ("CARES") Act
and Section 6001 of the Families First Coronavirus Response Act
("FFCRA"), the Defendant must reimburse "an amount that equals the
cash price for such Covid Testing services as listed by the
out-of-network provider on its public internet website or to
negotiate a rate/amount to be paid that is less than the publicized
cash price," "without the imposition of cost-sharing, prior
authorization or other medical management requirements." Its billed
services include "the doctor COVID medical visit CPT Code 99203,"
"the additional urgent care walkin charge CPT CODE S9088," "the
patient optional Covid swab collection fee CPT Code G2023," and
"the patient optional fee for the emergency COVID protective
equipment CPT CODE 99072."

The Defendant has denied or underpaid the Plaintiff's claims for
arbitrary reasons, set up unfair administrative appeals procedures,
and fraudulently profited from the COVID public health emergency.
It has created a burdensome scheme of requesting medical records
from the Plaintiff for the purpose of denying as many claims as
possible, which amounts to improperly imposing medical management
requirements as a condition of reimbursement. Finally, the
Defendant has assessed co-pays and deductibles against its insureds
in violation of Section 3203 of the CARES Act, as indicated on
Explanations of Benefits received by the Plaintiff.

The Plaintiff brings claims under Section 3202(a)(2) of the CARES
Act and Section 6001 of the FFCRA; Section 502(a)(1)(B) of the
Employee Retirement Income Security Act ("ERISA"); the Racketeer
Influenced and Corrupt Organizations Act ("RICO"); promissory
estoppel; injunctive relief; and California's Unfair Competition
Law ("UCL").

The Plaintiff represents a putative nationwide class of "all
persons, businesses and entities who were and are out of network
providers of Covid testing services and covered by the CARES and
FFRCA ACTs for payment by Aetna of their posted prices for rendered
Covid Testing services to the Defendant Aetna's insured."

The case is related to five earlier-filed cases in which the
Plaintiff sought reimbursement from Defendant for COVID testing
five individual patients pursuant to the CARES Act. The Court
dismissed the five related cases because the CARES Act does not
provide an express or implied private right of action for the
Plaintiff to seek reimbursement of its posted cash price --
Saloojas, Inc. v. Aetna Health of Cal., Inc., Nos. 22-cv-01696-JSC,
22-cv-01702-JSC, 22-cv-01703-JSC, 22-cv-01704-JSC, 22-cv-01706-JSC,
2022 WL 2267786 (N.D. Cal. June 23, 2022), appeals docketed, Nos.
22-16035, 22-16036, 22-16037, 22-16038, 22-16034 (9th Cir. July 18,
2022). The Court granted leave to amend based on the Plaintiff's
argument that it could amend to state a claim under ERISA. However,
the Plaintiff did not file an amended complaint in any of the five
cases, and instead appealed them.

The Defendant moves to dismiss all claims for failure to state a
claim.

Judge Corley finds that the Plaintiff's first claim, CARES Act and
FFCRA, fails as a matter of law. There is no private right of
action to enforce Section 3202(a)(2) of the CARES Act or Section
6001 of the FFCRA by requiring the Defendant to pay the Plaintiff's
posted cash price. The Court incorporates the analysis from its
order granting motions to dismiss in the five related cases. The
Defendant's motion to dismiss is granted as to this claim. Because
the defect lies in the legal theory, the dismissal is without leave
to amend.

The Plaintiff's second claim cites ERISA Section 502(a)(1)(B). The
Defendant moves to dismiss for lack of statutory standing, for
failure to exhaust, and for failure to state a claim for benefits
or equitable reformation.

Judge Corley finds that (i) the complaint fails to allege that the
Plaintiff has statutory standing by virtue of assignment; (ii) the
Plaintiff points to no specific text in either statute purporting
to amend ERISA's requirements for statutory standing; and (iii)
there is no legal support for the Plaintiff's contention that the
CARES Act and FFCRA have obviated the need for a provider to obtain
assignment in order to seek reimbursement under ERISA.

Therefore, Judge Corley grants the Defendant's motion to dismiss as
to this claim. With respect to the argument that the Plaintiff need
not allege assignment, the defect lies in the legal theory and the
dismissal is without leave to amend. With respect to the
Plaintiff's failure to allege a valid assignment, it is not
absolutely clear that the defect could not be cured with additional
facts, so the dismissal is with leave to amend. The Court need not
address the Defendant's alternative bases to dismiss the
Plaintiff's ERISA claim.

The Plaintiff's third claim arises under the RICO Act, 18 U.S.C.
Section 1962(c). The Defendant moves to dismiss for failure to
comply with Federal Rule of Civil Procedure 9's heightened pleading
requirements.

Judge Corley determines that the Plaintiff's allegations are
fatally conclusory. The Plaintiff does not allege facts supporting
a reasonable inference that Defendant engaged in mail fraud, wire
fraud, or embezzlement, or facts sufficient to give the Defendant
fair notice of the basis for its RICO claim. Nor does the Plaintiff
"detail with particularity the time, place, and manner of each act
of fraud," "the role of each defendant in each scheme," and "why
the statement or omission complained of was false and misleading."
Thus, the RICO claim fails to comply with Rule 9(b). Accordingly,
the Defendant's motion to dismiss is granted as to this claim. It
is not absolutely clear that the defect could not be cured with
additional facts, so the dismissal is with leave to amend.

With respect to promissory estoppel claim, under California law,
the elements of promissory estoppel are: "(1) a promise clear and
unambiguous in its terms; (2) reliance by the party to whom the
promise is made; (3) the reliance must be both reasonable and
foreseeable; and (4) the party asserting the estoppel must be
injured by his reliance." The Plaintiff alleges the Defendant
"undertook conduct that conveyed to it that coverage for COVID
testing would be afforded to its members, but then arbitrarily
adjudicated claims and refused to issue proper reimbursements when
the claims were submitted."

That falls short of alleging a promise clear and unambiguous in its
terms, Judge Corley holds. She says the complaint does not allege
facts supporting a reasonable inference that Defendant made a clear
and unambiguous promise to pay the Plaintiff a certain amount for
COVID testing its insureds. Rather, the gist of the complaint is
that the Defendant was legally required to pay the posted cash
price, not that it ever promised the Plaintiff to do so. Because
the first element is lacking, the Plaintiff fails to state a claim
for promissory estoppel.

Accordingly, the Defendant's motion to dismiss is granted as to
this claim. It is not absolutely clear that the defect could not be
cured with additional facts, so the dismissal is with leave to
amend. The Court need not address the Defendant's alternative bases
to dismiss the Plaintiff's promissory estoppel claim.

The Plaintiff styles its fifth claim "injunctive relief
(non-ERISA)." An injunction is a form of relief, not a substantive
claim creating liability. It may properly appear in a complaint's
prayer for relief, not as a claim or cause of action. Accordingly,
the Defendant's motion to dismiss this claim is granted, without
leave to amend. To the extent injunctive relief appears in the
complaint's prayer for relief, it is not dismissed or stricken on
this basis.

With respect to the Plaintiff's claim under UCL, Judge Corley finds
that the Plaintiff fails to allege that damages would inadequately
redress the harms caused by the Defendant. The crux of the
complaint is that the Defendant has not reimbursed the Plaintiff
for its posted cash price of COVID testing. There are no factual
allegations supporting a reasonable inference that injunctive
relief is needed in addition to reimbursement.  To the extent the
Plaintiff asserts injunctive relief is necessary to stop the
Defendant's campaign to mislead the public, the complaint does not
allege facts supporting a reasonable inference of such a campaign
or facts sufficient to give Defendant fair notice of the basis for
the claim.

Accordingly, Judge Corley grants the Defendant's motion to dismiss
as to this claim. It is not absolutely clear that the defect could
not be cured with additional facts, so the dismissal is with leave
to amend. The Court need not address Defendant's alternative bases
to dismiss the Plaintiff's UCL claim.

In light of the foregoing, Judge Corley grants the Defendant's
motion to dismiss. The Plaintiff's claim under the CARES Act and
FFCRA and claim for injunctive relief are dismissed without leave
to amend. Its ERISA claim is dismissed without leave to amend
regarding the argument that it need not allege assignment as a
matter of law. The ERISA claim is dismissed with leave to amend to
add factual allegations, if there is a good faith basis for doing
so, regarding assignment. The Plaintiff's RICO claim, promissory
estoppel claim, and UCL claim are dismissed with leave to amend.

The Plaintiff may file an amended complaint by Oct. 31, 2022.

The Order disposes of Docket No. 25.

A full-text copy of the Court's Sept. 30, 2022 Order is available
at https://tinyurl.com/mvfwe8vu from Leagle.com.


ALAMO OILFIELD: Fails to Pay Proper OT Wages, Smith Suit Says
-------------------------------------------------------------
JIMMY L. SMITH III, individually and on behalf of similarly
situated individuals, Plaintiff v. ALAMO OILFIELD SERVICES LLC and
DAVID PENA, Defendants, Case No. 5:22-cv-01079 (W.D. Tex., Oct. 3,
2022) arises from the Defendants' failure to pay Plaintiff and the
FLSA Collective overtime wages at rates not less than one and
one-half times their regular rates pursuant to the Fair Labor
Standards Act.

The Plaintiff was employed by Defendants as a day rate employee.
Plaintiff is domiciled in Texas and performed work out of
Defendants' facility as a scan operator and tubing inspector.

Alamo Oilfield Services LLC is an independent oilfield services
contractor that provides well site services to help develop and
enhance the production of oil and natural gas for oil and natural
gas companies.[BN]

The Plaintiff is represented by:

          Trang Q. Tran, Esq.
          TRAN LAW FIRM
          2537 S. Gessner Road, Suite 104
          Houston, TX 77063
          Telephone: (713) 223-8855
          E-mail: trang@tranlf.com
                  service@tranlf.com

ALBUQUERQUE, NM: Summary Judgment in Prescott v. BOE Affirmed
-------------------------------------------------------------
In the lawsuit titled BETENA PRESCOTT, GEORGIA DAVIS, ANNIE HILL,
BILLIE NEFF, and PATSY STEINER, on behalf of themselves and others
similarly situated, Plaintiffs-Appellants v. BOARD OF EDUCATION OF
ALBUQUERQUE PUBLIC SCHOOLS, Defendant-Appellee, Case No.
A-1-CA-38986 (N.M. App.), the Court of Appeals of New Mexico
affirms the district court's order granting summary judgment in
favor of the Defendant.

The Plaintiffs, retirees of Albuquerque Public Schools (APS), filed
a class action complaint against the Defendant, alleging that its
termination of life insurance premium subsidy benefits for retirees
constituted a breach of contract. The Defendant filed a motion for
summary judgment arguing, in pertinent part, that the Bateman Act
(the Act), NMSA 1978, Section 6-6-11 (1968), rendered any
implied-in-fact contract between the Plaintiffs and the Defendant
regarding such subsidy benefits void as a matter of law.

The district court initially denied the Defendant's motion for
summary judgment on the basis that the Defendant failed to plead
the Act as an affirmative defense. The Defendant filed a motion for
reconsideration in which it demonstrated that it had, in fact,
adequately pled the Act as an affirmative defense, and the district
court subsequently granted the Defendant's motions for
reconsideration and summary judgment. The Plaintiffs appeal.

The Plaintiffs argue that the district court erroneously granted
summary judgment, specifically contending that the Act cannot
prohibit the type of indebtedness at issue here--that is, subsidies
for retirees' life insurance premiums paid during the life of each
individual retiree--because the existence of a "contingency fund"
available to "offset unexpected expenditures" renders the Act
inapplicable.

The Defendant answers that the district court properly granted
summary judgment in the Defendant's favor, arguing that the Act
bars the Plaintiffs' breach of contract claim as a matter of law,
and their contentions regarding the "contingency fund" are
unavailing because the fund in question was neither created for the
purpose of, nor identified as available for, funding the subsidized
life insurance premiums of retirees.

Chief Judge J. Miles Hanisee, writing for the Panel, notes that the
Court of Appeals reviews the district court's grant of summary
judgment de novo, citing All. Health of Santa Teresa, Inc. v. Nat'l
Presto Indus., Inc., 2007-NMCA-157, Paragraph 7, 143 N.M. 133, 173
P.3d 55. It likewise reviews issues of law de novo, citing Bank of
N.Y. Mellon v. Lopes, 2014-NMCA-097, Paragraph 6, 336 P.3d 443.
Summary judgment is appropriate where there is no evidence raising
a reasonable doubt that a genuine issue of material fact exists. An
issue of fact is material if the existence (or non-existence) of
the fact is of consequence under the substantive rules of law
governing the parties' dispute.

Under these standards, the Court of Appeals examines whether the
Plaintiffs have demonstrated the existence of any specific
evidentiary fact that is of consequence under the substantive rules
of law governing this appeal. While the Plaintiffs do not
explicitly frame their assertions regarding the existence of the
"contingency" fund as creating a genuine issue of material fact
warranting reversal, whether such a fund exists--and, crucially,
whether the fund was created for the purpose of, or identified as
available for, funding the subsidy benefits--are the only
discernible disputed facts in this case that could be of
consequence under the Act, which is the substantive law governing
this appeal, Judge Hanisee opines.

In its order granting the Defendant's motion for summary judgment,
the district court concluded that the Plaintiffs did not raise a
genuine issue of material fact with regard to creation of a special
fund in the present matter and did not provide authority for the
proposition that the Act could be waived due to an agreement
between the parties. The Court of Appeals must, therefore,
determine whether the existence of a general "contingency" fund
available to the Defendant as argued by the Plaintiffs is of
consequence under the Act.

Further, to the extent the Plaintiffs' arguments implicitly
challenge the broader applicability of the Act to the subsidy
benefits at issue, the Court of Appeals examines whether the
Plaintiffs persuade this Court of error in the district court's
conclusions regarding the Act's applicability.

Judge Hanisee opines that the purpose of the Act is to prevent
counties and municipalities from contracting debts that they are
not able to pay, citing Treloar v. Cnty. of Chaves, 2001-NMCA-074,
Paragraph 23, 130 N.M. 794, 32 P.3d 803. Plainly, the Act requires
that if a school board, such as the Defendant, contracts a debt
greater than what can "be paid out of the money actually collected
and belonging to that current year," then that debt is void, Judge
Hanisee holds.

The Court of Appeals has previously held that when a special fund
for a purpose is created, the Act is not applicable. The
Plaintiffs, however, argue that under Treloar a fund need not be
created or identified as available for the specific purpose of
funding a particular future cost in order to render the Act
inapplicable to an agreement creating a debt, and there existed a
general "contingency" fund that rendered the Act inapplicable. The
Plaintiffs' reading of Treloar, however, goes beyond what that case
holds.

In Treloar, the Court of Appeals rejected application of the Act to
a county's debt owed to a physician by virtue of the termination of
his employment contract, concluding that the debt could have been
paid from a fund created from the proceeds of the sale of a
hospital in anticipation of the specific need to eventually pay for
termination or severance packages.

In contrast, Judge Hanisee says, here there is no indication in the
record that the "contingency" fund identified by the Plaintiffs was
similarly created with the intention of funding a specific
anticipated need. Indeed, the record contains an affidavit of Tami
Coleman, the Chief Financial Officer for APS, in which Ms. Coleman
stated that there has never been a special fund created by APS for
payment of the Plaintiffs' subsidized life insurance premiums.

Following its own thorough review of the record, the Court of
Appeals remains unpersuaded by the Plaintiffs' contention that the
"contingency" fund in the instant case functions in the same way as
the special fund in Treloar to render the Act inapplicable.

Because the existence of a general contingency fund has no bearing
on the substantive law at issue in this case, such is an immaterial
fact and the Plaintiffs' assertion thereof does not demonstrate a
genuine issue of material fact sufficient to compel the Court of
Appeals' reversal of the district court's grant of summary
judgment. Moreover, Judge Hanisee finds the Plaintiffs fail to
demonstrate that the district court otherwise erred in its
conclusions regarding the Act's applicability to the subsidy
benefits here.

For the reasons stated, the Court of Appeals affirms.

JENNIFER L. ATTREP and SHAMMARA H. HENDERSON, Judges, concurs.

A full-text copy of the Court's Memorandum Opinion dated Sept. 22,
2022, is available at https://tinyurl.com/5n8y39v8 from
Leagle.com.

Youtz & Valdez, P.C., Shane C. Youtz -- shane@youtzvaldez.com --
Stephen Curtice -- stephen@youtzvaldez.com -- James A. Montalbano
-- james@youtzvaldez.com -- in Albuquerque, New Mexico, for the
Appellants.

Modrall, Sperling, Roehl, Harris & Sisk, P.A., Arthur D. Melendres
-- arthur.melendres@modrall.com -- Zachary L. McCormick --
zachary.mccormick@modrall.com -- Dominic A. Martinez --
Dominic.Martinez@modrall.com -- in Albuquerque, New Mexico, for the
Appellee.


ALLEN DISTRIBUTION: Strawser Labor Suit Removed to E.D. California
------------------------------------------------------------------
The case styled RONALD STRAWSER, on behalf of himself and others
similarly situated, Plaintiff v. ALLEN DISTRIBUTION; ALLEN
DISTRIBUTION, LP; ALLEN DISTRIBUTION, LLC; and DOES 1 TO 100,
inclusive, Defendant, Case No. STK-CV-UOE-2022-7321, was removed
from the Superior Court for the State of California, County of San
Joaquin, to the U.S. District Court for the Eastern District of
California on Oct. 3, 2022.

The Clerk of Court for the Eastern District of California assigned
Case No. 2:22-cv-01733-WBS-KJN to the proceeding.

In his complaint, the Plaintiff asserts the following causes of
action under the California Labor Code: (1) failure to pay minimum
wages for all hours worked; (2) failure to pay overtime wages for
daily overtime worked; (3) failure to authorize or permit meal
periods; (4) failure to authorize or permit rest periods; (5)
failure to indemnify employees for employment-related expenses; (6)
failure to timely pay wages during employment; (7) failure to
provide complete and accurate wage statements (8) failure to timely
pay wages owed upon separation; and (9) unfair business practices
in violation of California's Business and Professions Code.

Allen Distribution is a third-party logistics company.[BN]

The Defendants are represented by:

          Matthew B. Golper, Esq.
          Daniel J. Corbett, Esq.
          BALLARD ROSENBERG GOLPER & SAVITT, LLP
          15760 Ventura Boulevard, Eighteenth Floor
          Encino, CA 91436
          Telephone: (818) 508-3700
          Facsimile: (818) 506-4827
          E-mail: mgolper@brgslaw.com
                  dcorbett@brgslaw.com

ALLIANCE COAL: Must Face FLSA Class Action, S.D. Ill. Rules
-----------------------------------------------------------
Wilson Fay, writing for Law Street, reports that on Oct. 3, the
Southern District of Illinois issued an order denying Alliance Coal
and its subsidiaries motion to deny the coal miner plaintiffs'
complaint in Cates v. Alliance Coal, LLC et al.

According to the motion, Rickey Cates filed the class action
lawsuit against Alliance Coal, LLC, Alliance Resource Partners,
L.P., Alliance Resources Operating Partners, L.P., Alliance
Resource Management GP, LLC, (The Alliance Defendants) Hamilton
County Coal, LLC and White County Coal, LLC. Further, the complaint
states that the Alliance defendants own and control each of the
subsidiary defendants, Hamilton County Coal and White County Coal,
and established and directed their employment policies and
procedures.

On April 9, 2021, Cates filed the lawsuit on behalf of himself and
miners who worked in mine complexes owned and operated by Hamilton
County Coal and White County Coal. The complaint alleged that the
defendants violated of the Fair Labor Standards Act (FLSA),
Illinois Minimum Wage Law, and Illinois Wage Payment and Collection
Act.

Specifically, the plaintiffs allege that the defendants unlawfully
failed to pay its miners for off-the-clock work, overtime, and
non-discretionary bonuses despite the miners being non-exempt
employees. The order states that the off-the-clock work included
attending meetings, and dressing protective gear and the bonuses
included attendance incentive bonus and production and safety
bonus.

The Alliance Defendants responded by filing a motion to dismiss
arguing that the plaintiffs lacked personal jurisdiction and failed
to state a claim leading to the present order. In the order, the
court denied the defendants' motion regarding both their personal
jurisdiction and failure to state a claim argument.

The court held that it had personal jurisdiction over the Alliance
defendants due to their ownership and operation of Hamilton County
Coal and White County Coal which are located in Illinois. Further,
the court held that the plaintiffs adequately plead allegations
sufficient enough  to establish an employment agreement.

The plaintiffs are represented by Lynch Carpenter LLP, and the
defendants are represented by Seyfarth Shaw LLP and Stoll Keenon
Ogden PLLC. [GN]

AMAZON.COM SERVICES: Bid to Dismiss Del Rio Suit Granted in Part
----------------------------------------------------------------
In the case, DEL RIO, et al., Plaintiffs v. AMAZON.COM SERVICES,
LLC, et al., Defendants, Case No. 3:21-CV-01152 (KAD) (D. Conn.),
Judge Kari A. Dooley of the U.S. District Court for the District of
Connecticut enters a Memorandum of Decision:

   a. granting in part the Defendants' motion to dismiss the
      Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6); and

   b. denying the Plaintiffs' motion for leave to file a Second
      Amended Complaint.

Plaintiffs Javier Del Rio, Colin Meunier, and Aaron Delaroche,
bring this putative class action against Defendants Amazon.com
Services, LLC, Amazon.com.dedc, LLC, and Amazon.com, Inc. on behalf
of themselves and similarly situated warehouse workers employed by
Defendants. The Plaintiffs assert by way of an Amended Complaint
two causes of action against the Defendants: (1) a failure to pay
straight time wages in violation of Conn. Gen. Stat. Sections
31-72; 31-71b et seq. and Conn Agencies Regs. Section 31-60-11; and
(2) a failure to pay overtime wages in violation of Conn. Gen.
Stat. Sections 31-68; 31-76b(2)(A) et seq. The gravamen of their
Amended Complaint is that the Defendants required them to go
through a mandatory security screening process prior to leaving the
Defendants' Connecticut facilities but failed to pay them their
hourly wage for the time it took to do so.

Amazon.com Services, LLC is a limited liability company organized
and existing under the laws of the state of Delaware, headquartered
in Seattle, Washington. It is registered as a business with the
Connecticut Secretary of State. Amazon.com.dedc, LLC is a
corporation organized and existing under the laws of the state of
Delaware, headquartered in Seattle, Washington. Amazon.com, Inc. is
a corporation organized and existing under the laws of the state of
Delaware, headquartered in Seattle, Washington. The Defendants
collectively own and operate approximately 10 facilities in
Connecticut, to include "fulfillment centers," "delivery stations,"
and "sorting centers." They employ warehouse workers at their
Connecticut facilities, like Plaintiffs Del Rio, Meunier, and
Delaroche, who are not exempt from mandatory security screening
protocol.

Mr. Del Rio is an individual residing in New Haven, Connecticut. He
was employed by the Defendants as a Packer at their North Haven,
Connecticut facility from November of 2020 to April of 2021.
Meunier is an individual residing in Royal Oak, Michigan. He was
employed by the Defendants as a Stower and Picker Packer at their
Windsor, Connecticut facility from May 29, 2018 until July 10,
2019. Delaroche is an individual residing in Granby, Connecticut.
He was employed by the Defendants as a Stower, Packer, Line
Straightener, and Induct at their Windsor, Connecticut facility
from November of 2019 until April of 2021.

In conjunction with their employment, the Defendants required the
Plaintiffs and similarly situated non-exempt warehouse workers at
their Connecticut facilities to go through a mandatory security
screening process prior to leaving the facilities at the end of
their shift, or for their meal break. As part of this screening
process, they required them to wait in lines leading up to a
security screening area and to proceed through a metal detector. If
the metal detector's alarm sounds, the Defendants subjected the
Plaintiffs to individual searches conducted by a security guard.
They also required all bags and personal items carried by them to
be individually searched by security guards. They prohibited them
from leaving the facility until they have successfully completed
the security screening process, which routinely took between 10 and
20 minutes. Moreover, the Plaintiffs allege that the Defendants'
mandatory security screening process resulted in an automatic
30-minute deduction from their unpaid meal break.

The Plaintiffs allege that the Defendants agreed to compensate them
and similarly situated non-exempt warehouse workers at their
Connecticut facilities based on an hourly rate for their time at
work. Notwithstanding, they allege that the Defendants have not
paid them for the time elapsed between the conclusion of their
shifts and the conclusion of the mandatory security screening
process, or the time elapsed between the commencement of their
unpaid meal period and the conclusion of the mandatory security
screening process. They further allege that, for some putative
class members, a portion of the time spent in the Defendants'
mandatory security screening process qualified as overtime.

The Plaintiffs bring this class action on behalf of themselves and
all other putative class members, which they define as follows:
"All current and former employees of the Defendants who were
employed as hourly, non-exempt warehouse workers in Connecticut at
any time from April 16, 2018 through the date of final judgment in
this matter." They allege that the putative class members consist
of "over 10,000 warehouse workers" employed by Defendants at their
Connecticut facilities.

The Plaintiffs assert two causes of actions against the Defendants
based on their alleged failure to pay earned wages. Specifically,
they allege in support of both Counts that the Defendants violated
Connecticut's Minimum Wage Act by failing to compensate them and
the putative class members for time spent undergoing mandatory
security screening during their meal breaks and at the end of their
shifts. The Defendants have moved to dismiss Count One in its
entirety and Count Two with respect to Del Rio and Meunier.

In Count One of the Amended Complaint, the Plaintiffs claim that
the Defendants failed to pay their straight time wages "in
violation of Connecticut's Minimum Wage Act," Conn. Gen. Stat.
Sections 31-72; 31-71b et seq. and Conn Agencies Regs. Section
31-60-11. The Defendants argue that Count One must be dismissed in
its entirety because it is premised on a right to straight time pay
"that does not exist under Connecticut's Minimum Wage Act and
because the Connecticut Supreme Court has held that Section 31-72
is a mechanism to enforce existing wage obligations," and "does not
create a substantive right to wages." The crux of the Defendants'
argument is that the "Plaintiffs failed to allege an agreement
setting forth wage obligations and breach of that agreement."

In response, the Plaintiffs identify the allegations set forth in
their Amended Complaint which state that the Defendants "agreed to
pay them an hourly rate for the hours they work." They argue that
this allegation reasonably supports the inference that the
Defendants breached a wage agreement which entitles them to
straight time pay for non-overtime hours.

While Judge Dooley agrees with the Defendants that Section 31-72 is
a mechanism by which to enforce wage agreements, she agrees with
the Plaintiffs that the allegations plausibly allege such an
agreement and a breach of the agreement by the Defendants. In
addition to the allegation that the Defendants agreed to pay the
Plaintiffs an hourly wage for the hours worked, the Amended
Complaint alleges that the "Defendants did not pay the Plaintiffs
the compensable work time" involved in the mandatory security
screening process. The Defendants' narrow focus on the failure to
allege an agreement to compensate the Plaintiffs for the time spent
complying with the mandatory security screenings misses the point.
The Plaintiffs allege that insofar as the process was mandatory, it
falls within the agreement to pay them their hourly wage for
however long the process took.

Accordingly, drawing all reasonable inferences in the Plaintiffs'
favor as the Court must, and all reasonable inferences that
Defendants are liable for the misconduct alleged, Judge Dooley
finds that the Amended Complaint reasonably supports the inference
that the Defendants violated Section 31-72 on the basis of their
breach of the agreement to pay hourly compensation to the
Plaintiffs for the hours they worked. Accordingly, the Defendants'
motion to dismiss Count One for failure to state a claim is
denied.

Alternatively, the Defendants assert an affirmative defense to
Counts One and Two with respect to Meunier, specifically, that
Meunier's claims are barred by a general release he signed over
seven months after the conclusion of his employment, while
represented by counsel in this case. Meunier previously sued
Defendant Amazon.com Services, LLC for disability discrimination.
In resolving the litigation, he signed the general release now
relied upon in the Defendants' affirmative defense. In response,
the Plaintiffs contest the legal and factual applicability of the
Release to the claims asserted in the Amended Complaint. As a
factual matter, Meunier submits that it was not the parties'
intention to release any wage claims at the time he settled his
disability discrimination claim.

Judge Dooley notes that the parties offer competing factual
narratives regarding the scope of the Release and its applicability
to Meunier's unpaid wage claims. On this record, she elects not to
accept these extraneous documents and affidavits, thus converting
the motion to one for summary judgment Galvin v. Lloyd, 663 F.Supp.
1572, 1575 (D. Conn. 1987). These issues are better addressed after
discovery has been completed and the facts fully developed.
Accordingly, limiting her analysis to the four corners of the
Amended Complaint and for the reasons she articulated, Judge Dooley
denies the motion to dismiss Meunier's unpaid wage claims in Counts
One and Two.

In Count Two of the Amended Complaint, the Plaintiffs claim that
the Defendants failed to pay their overtime wages in violation of
Conn. Gen. Stat. Sections 31-68; 31-76b(2)(A) et seq. The
Defendants argue that Count Two must be dismissed with respect to
Del Rio because he "fails to identify any workweek during which he
worked over 40 hours and passed through security while exiting the
Defendants' facility to support his claim for overtime wages." In
response, the Plaintiffs clarify that "Del Rio does not assert that
he is owed overtime wages." Any claim for unpaid overtime wages set
forth in Court Two by Del Rio is dismissed.

On Aug. 26, 2022, the Plaintiffs moved for leave to file a Second
Amended Complaint pursuant to Fed. R. Civ. P. 15(a)(2). The
Defendants oppose the Plaintiffs' motion. The Plaintiffs seek to
further amend their Amended Complaint to, inter alia, "clarify that
their lawsuit seeks back wages for "all" time the class was
required to remain on the premises from clock out to swipe out
(i.e., exit) to undergo security screening procedures." To the
contrary, the Defendants decry the Plaintiffs' untimely amendment
as an attempt to significantly alter the nature and scope of the
relief sought.

Judge Dooley agrees with the Defendants that the motion should be
denied because the Plaintiffs have not offered any sound reason for
the delay in asserting this expanded wage claim and to allow the
amendment would be unduly prejudicial to the Defendants. She
concludes that it would be unfairly prejudicial to permit the
proposed Second Amended Complaint and the Plaintiffs have not
established good cause for the same.

For the foregoing reasons, Judge Dooley grants in part the
Defendants' motion to dismiss. She denies the Plaintiffs' motion
for leave to amend.

A full-text copy of the Court's Sept. 30, 2022 Memorandum of
Decision is available at https://tinyurl.com/2p98b8ap from
Leagle.com.


AMERICAN GENERAL: Judge Refuses to Certify Insurance Class Action
-----------------------------------------------------------------
Daniel Fisher, writing for Legal Newsline, reports that a federal
judge refused to certify a class action that could have exposed
life insurers to billions of dollars in damages, saying the
proposed class was too broad and the lead plaintiff wasn't typical
of other claimants lawyers sought to bundle into one massive case.

The order by U.S. District Judge Ted Moskowitz ends one potentially
devastating threat to the industry but insurers still face more
potential class actions in state court in California. The
California Supreme Court propelled the litigation forward last year
with its decision in McHugh v. Protective Life, holding a state law
requiring life insurers to give notice to customers before
canceling their policies for nonpayment applied to every policy
sold in California, not just policies sold after the law went into
effect in 2013.

Lawyers for heirs of Heron D. Moriarty hoped to use that ruling to
justify a class action against American General, seeking injunctive
relief as well as money damages for any customers whose policies
were cancelled without required notice. Moriarty's life policy
expired in March, 2016. He died in May and American General refused
to pay a claim filed in June, saying it had been filed after a
60-day grace period had expired.

Judge Moskowitz denied class certification, however, saying the
Moriarty plaintiffs were seeking money damages while many of the
proposed class members would have received only injunctive relief,
since they either hadn't made claims or their policies hadn't been
canceled at all. The U.S. Supreme Court, in its landmark Walmart v.
Dukes decision, held that damages claims can't be certified as a
class action under the section of Rule 23 covering equitable
relief, or judicial orders requiring the defendant to comply with
certain conditions.

"Plaintiff's argument is creative, but certification would be
inconsistent with -- at the very least" Walmart v. Dukes, the judge
wrote. "Simply put, Plaintiff's proposed class action is
fundamentally flawed because she is seeking damages and has no
claim for equitable relief, whereas the proposed class members have
no damages and would be seeking equitable relief."

The judge also said the class would be too broad, because it would
cover policies that haven't been terminated as well as
policyholders who have known for years that their policies had been
canceled. Different state laws also might apply to some claimants,
the judge said. [GN]

ANCESTRY.COM DNA: Court Denies Bid for Arbitration in Coatney Suit
------------------------------------------------------------------
In the case, ALEX COATNEY, H.S. and B.H., by and through their
Guardian DONNA HILAND, and N.S., by and through her Guardian
JENNIFER PALLONE, individually and on behalf of similarly situated
individuals, Plaintiffs v. ANCESTRY.COM DNA, LLC, Defendant, Case
No. 21-cv-1368-DWD (S.D. Ill.), Judge David W. Dugan of the U.S.
District Court for the Southern District of Illinois denies the
Defendant's Motion to Compel Arbitration.

Plaintiffs Alex Coatney, and H.S., B.H., and N.S., by and through
their guardians, individually and on behalf of other similarly
situated individuals, bring this putative class action against
Ancestry, alleging violations of the Illinois Genetic Information
Privacy Act, 410 Ill. Comp. Stat. Ann. 513/1, et seq. ("GIPA").
They contend that Ancestry violated their privacy rights by
disclosing confidential genetic information to unauthorized third
parties without their written consent.

Ancestry is a genetic testing services company that sells genealogy
tools and DNA testing kits to customers around the world. The
Plaintiffs' DNA tests were registered, submitted, and processed by
Ancestry while they were minors. They do not have registered
accounts with Ancestry, however, each of their Guardians, Coatney,
Roberts, and Pallone (the "Guardians"), used their registered
Ancestry accounts to submit Plaintiffs' DNA tests to Ancestry. To
register their accounts, the Guardians provided their names and
email addresses, created passwords, and accepted Ancestry's Terms
and Conditions that were in effect at the time of their
registration.

Ancestry updated its Terms and Conditions no less than 10 times
from the time of Guardian Pallone's registration in 2006 until the
filing of the Plaintiffs' initial complaint. Each of those versions
of the Terms and Conditions contained a provision allowing Ancestry
to unilaterally modify the Terms and Conditions at any point and
provide notice to users via email or a banner on their website.
Continued use of Ancestry's product or services after being
notified of a change in the Terms would constitute acceptance of
the updated Terms. The parties do not argue that any of the
Guardians disaffirmed Ancestry's Terms or have deleted their
accounts. Thus, it is undisputed that the most recent Terms and
Conditions, the 2019 Terms, apply to the relationship between
Ancestry and the Guardians.

However, the parties dispute whether the 2019 Terms, or any version
of the Terms and Conditions, apply to the Plaintiffs. The
Plaintiffs maintain that no version of the Terms and Conditions can
apply to them. Whereas the Defendant appears to argue that the 2019
Terms, or some other version of the Terms and Conditions, do apply
to the Plaintiffs. For the most part, each version of the Terms and
Conditions contain similar provisions, and any differences are not
particularly relevant to the parties' dispute.

Alex Coatney's DNA test was registered on Dec. 29, 2017, H.S.' DNA
test was registered on Aug. 18, 2019, B.H.'s DNA test was
registered on Sept. 25, 2019, and N.S.' DNA test was registered on
Jan. 10, 2016. Thus, Judge Dugan reviews the March 2015, December
2017, and July 2019 Terms and Conditions. As is relevant to the
current Motion, these versions all contain a dispute resolution
clause requiring binding arbitration.

Further, all versions of the terms clarified that the Defendant's
services, including its DNA services, are intended for adults.
However, the terms contemplate minors using Defendant's services
through accounts managed by the minor's parent or legal guardian.
In addition to the requirements in the relevant Terms and
Conditions, to activate the Plaintiffs' DNA tests, the Guardians
had to complete consent forms for the minors.

The Defendant moves to compel arbitration under the Federal
Arbitration Act ("FAA"). The FAA mandates that courts enforce
valid, written arbitration agreements. This mandate reflects a
federal policy that favors arbitration and "places arbitration
agreements on equal footing with all other contracts." Arbitration
should be compelled under the FAA when "three elements are present:
(1) an enforceable written agreement to arbitrate, (2) a dispute
within the scope of the arbitration agreement, and (3) a refusal to
arbitrate."

The Defendant presents two general theories which purportedly bind
the Plaintiffs to the arbitration agreements in its Terms and
Conditions. First, it argues that the Plaintiffs assented to the
Terms and Conditions by either (a) agreeing to use its services to
submit their DNA tests through their Guardians' accounts, or (b)
because the Guardians executed the relevant consent forms on the
Plaintiffs' behalf. Alternatively, the Defendant maintains that
equitable principles bind yr Plaintiffs to the Terms and Conditions
because they received the benefit of using its services.

The Defendant argues that the Plaintiffs are bound to the
arbitration provisions in its Terms and Conditions because they
manifested an affirmative intent to be bound to the Terms either
(a) by consenting to use its services to submit their DNA tests or
(b) because they authorized their Guardians to execute the relevant
consent forms on their behalf. In response, the Plaintiffs
summarily refute that they agreed to use the Defendant's services
at all. Instead, they imply that their Guardians acted unilaterally
in submitting their DNA to the Defendant.

Judge Dugan finds that nothing in the plain language of the Terms
and Conditions or the consent forms indicate that the Guardians
were agreeing to the Terms or executing the consent forms on behalf
of the Plaintiffs, whether in addition to their Guardians or
independent of their Guardians. Nor did the Plaintiffs physically
sign the user agreements or register for an account separate from
their Guardians. Finally, nothing in the record indicates that the
Plaintiffs activated their own DNA tests or otherwise engaged
independently with the Defendant's services so to conclude that
they manifested an independent intent to be bound by its Terms and
Conditions when the Guardians completed the consent forms. Thus,
Judge Dugan declines to find that the Guardians executed the Terms
and Conditions or consent forms on behalf of the Plaintiffs.

Although the Plaintiffs did not assent to the specific terms of the
Terms and Conditions, the Plaintiffs, as non-signatories to their
Guardians' user agreements, may still be bound to the arbitration
clause in the Terms and Conditions. Illinois recognizes that
non-signatories may be bound to an arbitration agreement under
theories such as agency, estoppel and third-party beneficiary
status. Relevant in the case, the Defendant argues that the
Plaintiffs received the benefit of using its services which would
not have been possible without their Guardians' accounts, and those
accounts are subjected to its Terms and Conditions and arbitration
provisions.

The Plaintiffs refute the general allegation that they used he
Defendant's services. Instead, they argue that their Guardians
acted unilaterally -- and in purported violation of their user
agreements -- in submitting their DNA to the Defendant. They also
suggest that the Guardians never shared the results of the
Defendant's processing of their DNA tests with the Plaintiff.

Judge Dugan holds that although the minor Plaintiffs had
theoretical access to the Defendant's services through their
Guardians' accounts, and likely a right to access the results of
their DNA tests, there are no allegations that the Plaintiffs did
either. Instead, the allegations in the Amended Complaint indicate
the opposite. Thus, he declines to find that this amorphous access
to the benefit of the Defendant's services is enough to bind the
Plaintiffs to the agreement and its arbitration clause. Thus, he
declines to find that these other equitable principles somehow bind
the Plaintiffs to the arbitration clause.

For these reasons, Judge Dugan denies the Defendant's Motion. By
separate order, the Court will track the case and set the matter
for a scheduling conference.

A full-text copy of the Court's Sept. 30, 2022 Memorandum & Order
is available at https://tinyurl.com/3ta22zfz from Leagle.com.


APTDECO INC: Court Grants in Part Bids to Stay or Dismiss King Suit
-------------------------------------------------------------------
In the lawsuit titled ASHTON KING, ET AL., Plaintiffs v. APTDECO,
INC., ET AL., Defendants, Case No. 20-cv-9865 (JGK) (S.D.N.Y.),
Judge John G. Koeltl of the U.S. District Court for the Southern
District of New York grants in part and denies in part the
Defendants' motions to stay or dismiss the action pending
arbitration.

Plaintiffs Ashton King and Teashawn Smith, on behalf of themselves
and others similarly situated, sued their former employer, AptDeco;
its Chief Executive Officer and co-founder, Reham Fagiri; and its
other co-founder, Kalam Dennis, for violating the Fair Labor
Standards Act, 29 U.S.C. Section 201, et seq., and New York Labor
Law Section 215. The Plaintiffs allege that the Defendants failed
to pay them minimum wage and overtime compensation, failed to give
required notices and wage statements, and made illegal deductions
from their wages. King also alleges that the Defendants retaliated
against him in violation of New York state law.

AptDeco operates an online marketplace for customers to buy and
sell used household furniture. Individuals, who purchase items
through AptDeco's website, can retrieve the furniture directly from
the seller or use a delivery service provided by AptDeco. This
dispute arises from AptDeco's employment of King and Smith, mainly
as delivery drivers.

The terms of engagement for King and Smith were governed by a
Delivery Services Agreement. According to AptDeco, all delivery
drivers used by AptDeco are "required to enter into a Delivery
Services Agreement with AptDeco that contains the contractual terms
of the relationship, including payment terms." The Agreement refers
to delivery drivers as "contractors," and AptDeco attests that it
"would not permit a contractor to perform delivery services unless
that contractor signed an Agreement with" AptDeco.

Each Agreement also contains an arbitration clause providing in
relevant part that Household Goods Claims will be finally resolved
by one arbitrator in binding arbitration administered by the
American Moving and Storage Association in accordance with its AMSA
Household Goods Dispute Settlement Program.

AptDeco hired King in June 2018. From June 2018 until about August
2019, King worked as a driver's assistant for AptDeco. He then
worked as a delivery driver. In an email dated June 20, 2018,
AptDeco sent King an Agreement and informed him that the Agreement
"must be signed" before he could begin working for AptDeco. King's
electronic signature appears on the document. The Defendants attest
that King electronically signed the Agreement in December 2018.

King disputes that he signed the Agreement. He claims that, when
asked to sign the Agreement on two separate occasions, he
explicitly refused to do so. The first time was on receipt of the
June 20, 2018 email. He alleges that he did not sign the Agreement
because he "didn't understand what it said" and assumed it would be
better for his rights if he did not sign. Then, a few months into
King's employment, AptDeco again asked King to sign the Agreement.
King again did not sign because he assumed it would be better for
his rights if he did not sign, but he was now "even more adamant"
about not signing because he had already worked for several months
and was allowed to work without signing the Agreement. He was also
"suspicious" that he was not being paid properly and did not want
to sign anything that would impact his rights.

Around November 2018, AptDeco interviewed Smith for a job. At the
end of the interview, Smith was presented with the Agreement and
was told he had to sign it to be hired. Smith does not dispute that
he signed the Agreement. Instead, he alleges that he was not given
time to read and review the Agreement, and that the Agreement was
not explained to him in detail before he signed it. However, in an
email dated Nov. 27, 2018, AptDeco sent Smith a copy of the
Agreement to read and sign.

AptDeco attests that Smith "could take whatever time he wanted to
review the document" and that "there was no deadline given" for the
Agreement to be sent back, but the email only states that Smith
"can print out the last page sign it and bring it in on the day of
training," and that "if the contract is not signed you cannot start
working." Smith worked as a driver's assistant for AptDeco from
November 2018 through May 2019. He then worked for a few months as
a driver dispatcher for AptDeco.

On Nov. 23, 2020, King and Smith filed the putative class action
complaint in this action. The complaint alleges that, although the
Agreements classified the Plaintiffs as independent contractors,
the Plaintiffs were AptDeco employees and were entitled to the
legal protections owed to employees, including a minimum wage and
overtime compensation. King also claims that the Defendants
retaliated against him in violation of New York state law.

On April 30, 2021, the Defendants moved to stay or dismiss this
case pending arbitration pursuant to the Agreements with King and
Smith. On Oct. 28, 2021, the Court denied without prejudice the
Defendants' motions to compel arbitration.

Now before the Court are the Defendants' renewed motions to stay or
dismiss the case pending arbitration.

Judge Koeltl states that there is a material factual dispute as to
whether King agreed to the Agreement. Although King's electronic
signature appears on his Agreement, he submitted an affidavit
swearing that he did not sign the Agreement.

This affidavit is sufficient to entitle King to a trial under the
Federal Arbitration Act ("FAA"), Judge Koeltl opines, citing Sphere
Drake Ins. Ltd. v. Clarendon Nat'l Ins. Co., 263 F.3d 26, 32-33 (2d
Cir. 2001).

The Defendants argue that King's electronic signature demonstrates
his assent to the Agreement. But King denies he authorized his
electronic signature, and "courts must refuse to enforce
arbitration clauses contained in documents alleged to be
forgeries," Judge Koeltl explains, citing Firma Melodiya v. ZYX
Music GMBH, No. 92-cv-6798, 1995 WL 28493, at *4 n.3 (S.D.N.Y. Jan.
25, 1995). Under these circumstances, King's electronic signature
standing alone does not show his assent to the Agreement, Judge
Koeltl points out.

The Defendants also argue that King ratified the Agreement by
performing services for AptDeco. This argument is without merit,
Judge Koeltl holds. It is true that an agreement to arbitrate may
be formed by conduct that demonstrates the parties' mutual assent,
and that in some cases an employee may consent to a modification to
the terms of employment by continuing to work after receiving
notice of the modification. But where an employee expressly refuses
to agree to a contract and the employer continues to allow the
employee to work, the employee's continued work does not alone
constitute acceptance of the contract.

King alleges that he expressly objected to the Agreement and twice
refused to sign it. He further alleges that he continued working
for AptDeco after declining to sign the Agreement on the
understanding that his signature was not a necessary precondition
for working for the Defendants. Given these allegations, Judge
Koeltl holds that there is a material factual dispute as to whether
King agreed to arbitrate.

Thus, Judge Koeltl holds, a trial is necessary to determine whether
King agreed to arbitrate his claims against the Defendants. King
has requested that this trial be before a jury. Accordingly, the
Court will hold a jury trial on the issue of whether King agreed to
arbitrate his claims against the Defendants. The Defendants' motion
to compel arbitration of King's claims is, therefore, denied
without prejudice.

Smith does not dispute that he signed his Agreement with AptDeco,
but he asserts that he was not given enough time to review the
Agreement before he signed it. Judge Koeltl finds that the record
does not support this contention. Smith does not dispute that he
received the Agreement in advance of signing it. By signing the
Agreement, Smith agreed to be bound by its terms, including its
arbitration clause.

Smith argues that his claims against the Defendants are outside the
scope of the arbitration clause. He contends that the arbitration
clause covers only disputes between AptDeco and its customers, not
between AptDeco and those it allegedly employs. Smith also contends
that the arbitration clause does not cover the time Smith alleges
he was underpaid while working as an AptDeco dispatcher.

Pursuant to the Agreement, these issues of scope are for the
arbitrator, not the Court, to resolve, Judge Koeltl notes. The
Agreement's arbitration clause incorporates the AAA Commercial
Arbitration Rules. These rules empower the arbitrator to rule on
the scope of an arbitration agreement or the arbitrability of any
claim or counterclaim. The parties' incorporation of the AAA Rules
"serves as clear and unmistakable evidence of the parties' intent
to delegate such issues to the arbitrator."

In any event, the arbitration clause plainly covers Smith's claims
against the Defendants, Judge Koeltl finds. Smith focuses on the
arbitration clause's first two sentences, which provide for
arbitration of certain controversies "brought by a Customer against
Contractor or AptDeco," to be administered by the American Moving
and Storage Association.

Judge Koeltl holds that Smith is correct that this provision does
not encompass his claims against the Defendants. But Smith ignores
the arbitration clause's next provision: that any and all other
claims and disputes between the parties, which relate directly or
indirectly to this Agreement will be finally resolved by one
arbitrator in binding arbitration. This is a paradigmatic "broad"
arbitration clause.

The provision's plain language belies Smith's contention that the
provision covers disputes only between customers and AptDeco, Judge
Koeltl says. Rather, the arbitration clause encompasses Smith's
claims that he was misclassified as an independent contractor
instead of an employee throughout his employment with AptDeco.

Smith also argues that the Agreement is unconscionable because it
misclassifies employees as independent contractors, allowing the
workers to do all the delivery work for AptDeco in exchange for
less than minimum wage, and because the Agreement then negates any
possibility of workers seeking redress by forcing them to pay
exorbitant commercial arbitration fees and costs. Judge Koeltl
holds that Smith cannot avoid arbitration on these grounds.

Smith's first argument challenges the validity of the Agreement as
a whole, not the arbitration clause specifically. Judge Koeltl
holds that Smith must direct this argument to the arbitrator, not
the Court. He adds that Smith's speculative assertion that he would
be forced to pay the arbitrator's fee is insufficient at this stage
to avoid arbitration. If Smith is ultimately forced to incur the
projected arbitration fees, he may raise any issues of the
unenforceability of the arbitration award if it is sought to be
enforced.

Because there is a binding agreement to arbitrate, Judge Koeltl
holds that the Defendants' motion to compel arbitration of Smith's
claims against the Defendants is granted.

The Court has considered all of the parties' arguments. To the
extent not specifically addressed here, the arguments are either
moot or without merit. For these reasons, the Defendants' motion to
compel arbitration of King's claims is denied without prejudice.
The Defendants' motion to compel arbitration of Smith's claims is
granted. Smith's claims against the Defendants, including any
arbitration of those claims, are stayed pending the jury trial on
whether King should be required to arbitrate his claims against the
Defendants. At that trial, the parties may call any witnesses who
are relevant to the issue of whether King agreed to arbitrate. The
stay will permit a joint arbitration if King, like Smith, is
required to arbitrate his claims.

A full-text copy of the Court's Memorandum Opinion and Order dated
Sept. 22, 2022, is available at https://tinyurl.com/cwmzfwsj from
Leagle.com.


AUSTRALIA: Banksia Hill Youth Detainees Set to Begin Class Action
-----------------------------------------------------------------
Giovanni Torre, writing for National Indigenous Times, reports that
more than 600 current and former Banksia Hill Detention Centre
detainees will begin a class action in the Federal Court against
the West Australian Government within two weeks, Levitt Robinson
Solicitors announced on Oct. 6.

Stewart Levitt said the firm has also sought an urgent injunction
to prevent any further transfer of children from Banksia Hill to
Casuarina Prison's Unit 18, noting the high rate of self-harm
incidents in the unit.

Levitt Robinson is representing a number of current and former
detainees in a complaint to the Human Rights Commission and is
awaiting a termination of the complaint, because it appeared the WA
government would not pursue conciliation, to immediately commence
the class action.

"The intensification of the application of cruel and unusual
punishment over the weeks and months while we have been
foreshadowing a class action makes it appear the WA government
would be unlikely to engage in conciliation," Mr Levitt said.

Mr Levitt said he and his colleagues were also in Perth to
represent a Banksia Hill detainee who had been accused of
assaulting a prison officer, but the charge had been withdrawn
because security footage undermined the prosecution's case.

He said in a separate matter, the mother of a 14 year-old Banksia
Hill detainee asked the Corrective Services to investigate when her
son had a black eye and showed signs of self-harm when she visited
him.

The parent said the response from the Department of Justice
indicated an inquiry had been made but the outcome was
confidential.

"Secrecy and the use of suppression orders and repression by the WA
government is to suit their political interests… is it something
which clouds the impression that WA is committed… to the concept
of open justice," Mr Levitt said.

Mr Levitt said Banksia Hill detainees were overwhelmingly
Indigenous, many of whom were from the Kimberley, and many had
disabilities exacerbated by their treatment in custody.

The move comes one day after the WA Government revealed it would
review the WA Young Offenders Act to examine whether or not it was
achieving its objectives.

Teressa Mead, whose now-20-year-old son was sent to Banksia Hill
when he was 15, said he had been abused by prison guards during his
time there.

"As a mother I suffered a lot to see John go through that," she
said.

"He said there were a number of officers who put him down, knee in
the back, arms pinned behind him – they diagnosed him with
schizophrenia.

"At Bentley hospital the showers were cold, at Banksia there were
cold showers, there was cold food, because they were shouting for
help they were diagnosed with mental health issues."

Ms Mead said her son now suffered from claustrophobia and anxiety
and is on medication for his mental health.

Former Banksia Hill detainee Philip Herbert, now 27, said  the
prison failed to provide adequate mental health support during his
stints at Banksia Hill as a teenager.

Mr Herbert said six half-hour sessions with one psychologist was
the extent of the mental health care he received.

"I had anger management issues, which I understand fully now and
have control over myself and my life," he said.

"I would tell them when I was suicidal and they would not help.

"They would stick me in a cell with a foam cup, that's all I would
have.

"I spent 23 hours a day in observation, you were on concrete all
day, go into the cage for an hour, and if you had been helpful you
might get a phone credit."

Mr Herbert said little support had been provided to him to
reintegrate into society upon his release.

Megan Krakouer, who with Gerry Georgatos has worked to collect
hundreds of testimonies for the impending class action, said
nothing had changed in Banksia Hill since it opened in 1997.

"The atrocities and human rights abuse continue," she said.

"The class action and injunction will highlight the fails and shine
the light on the punitive treatment that children are being subject
to.

"The WA government need to be held to account for their repeated
failure to take action."

A spokesperson for the WA Department of Justice said "As these
matters appear to relate to current or proposed legal proceedings,
it would not be appropriate to comment at this time". [GN]

B&G FOODS: Illinois Court Denies Bid to Dismiss Strow Class Suit
----------------------------------------------------------------
In the case, CHARLES STROW, individually and on behalf of all
others similarly situated, Plaintiff V. B&G FOODS, INC., Defendant,
Case No. 21-cv-5104 (N.D. Ill.), Judge Steve C. Seeger of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, denies the Defendant's motion to dismiss.

Butter is magic on a stick. As this Court's grandmother used to
say, butter makes nothing worse, and makes almost everything
better. Spread on a fresh baguette, melted over mashed potatoes, or
baked into a flaky croissant, butter makes everything it touches
turn to golden goodness. It's the Midas of condiments.

Few words in the English language are more alluring than "butter,"
and for good reason. Most people have a hard time resisting
anything associated with butter. And, when it comes to promoting
food, marketers want to be on Team Butter. Sex sells, but butter is
a close second.

The case is about the allure of butter, and the deception of fake
butter products. Strow bought "Butter No-Stick Spray," sold under
the Crisco brand by B&G Foods. To his surprise, the product -- a
non-stick cooking spray -- did not contain any butter. He bought a
can of butterless butter spray.

The case involves artificial butter. B&G manufactures, labels,
markets, and sells a product called "Butter No-Stick Spray." Strow
bought a can of B&G's butter spray on more than one occasion
between July and August 2021. He paid at least $3.49 per 6 ounces.
He alleges that B&G's representations on the label are misleading
because the product contains no butter and instead uses artificial
butter ingredients.

B&G sells other no-stick sprays, like an olive oil spray. But
unlike its butterless butter spray, B&G's olive oil spray actually
contains its namesake ingredient. And competitor products (i.e.,
other butter-spray products) prominently feature "butter flavored"
identifications.

Mr. Strow alleges that he expected the "Butter No-Stick Spray" to
contain butter. He thought he was getting a can of sprayable butter
when he bought a can of butter spray.

Mr. Strow was disappointed to learn that it did not include butter.
He doesn't give the backstory about his disappointment. Maybe he
had heated up the waffle iron, and was ready and raring to go,
until he discovered the absence of butter in the can, and had to go
with Plan B for breakfast. In any event, Strow claims that the
product's packaging misled him and other consumers.

Mr. Strow claims that he never would have bought the product if he
had known the butterless truth -- or at least, he would have paid
less. According to the complaint, reasonable consumers rely on a
manufacturer to describe a product, especially when distinguishing
the product from alternatives. As Strow sees it, B&G used deceptive
practices to sell more of the spray than it otherwise would have
sold, and at a higher price. The complaint alleges that other
reasonable consumers would not have purchased the butterless butter
spray, either.

Mr. Strow alleges that he had a choice between B&G's spray and
other sprays that were lower-priced or that "did not misrepresent
their attributes." On multiple occasions, he chose B&G's spray.
Maybe the taste didn't bother him, because he kept buying it.

In the future, Strow hopes to purchase the product again. But he
wants assurances that the product's representations are consistent
with the fact that there is no real butter in the spray. So, he now
knows that the spray butter is butterless, but he wants the company
to tell him that it contains no butter.

Instead of going back to the grocery store and getting his money
back, Strow went to the federal courthouse. He sued B&G for
deceptive advertising. He later amended his complaint. He brings
this putative class action on behalf of himself and "all persons in
the State of Illinois who purchased the Product during the statute
of limitations for each cause of action alleged."

The Plaintiff's complaint contains six counts: (1) a violation of
the Illinois Consumer Fraud and Deceptive Business Practices Act;
(2) a violation of comparable statutes from other states; (3)
breaches of express and implied warranties of merchantability, and
a violation of the Magnuson Moss Warranty Act; (4) negligent
misrepresentation; (5) fraud; and (6) unjust enrichment. B&G, in
turn, moved to dismiss.

Mr. Strow claims that the labeling on B&G's spray was false and
intended to deceive consumers in violation of the ICFA and
comparable statutes from other states, state law express and
implied warranties of merchantability, and the Magnuson Moss
Warranty Act. He also claims that the labeling resulted in tortious
negligent misrepresentation, common-law fraud, and unjust
enrichment.

B&G makes one overarching argument that hovers over all of the
claims. The company argues that the complaint fails to adequately
allege that the product's label would deceive a reasonable
consumer. According to B&G, "because the Plaintiff's claims are all
based on the same facts, they all fail together." It raises no
alternative arguments to challenge the other claims. So the Court
will consider only whether the Plaintiff has plausibly alleged a
claim under the ICFA.

To state a claim under the ICFA, Strow must allege: (1) a deceptive
act or practice, (2) an intent for the consumer to rely on the
deception, (3) the occurrence of the deception in the course of
conduct involving trade or commerce, and (4) actual damage that was
(5) proximately caused by the deception. Alleging a fraud claim is
a tall order. Strow must identify the "who, what, when, where, and
how" of the alleged deception.

The basic issue is whether it is unreasonable as a matter of law to
believe that a can of butter spray contains butter. B&G argues that
the label on the butterless butter spray is not misleading, and no
reasonable consumer could think otherwise.

B&G basically argues that Strow is relying on an unreasonable
reading of the label on its can of spray butter. Boiling it down,
it thinks that it was unreasonable to read the word "Butter" to
mean butter. It points to the nature of butter itself, the
product's back label, and the product's front label.

Judge Seeger sees things differently, literally and figuratively.
If B&G didn't want consumers to think that the can contained
butter, one wonders why it said "Butter," front and center.

First, Judge Seeger opines that the debate about the transformative
abilities of butter can wait. Maybe butter cannot remain a liquid
at room temperature without the addition of some additive, such as
butteroil or anhydrous milk fat. But for now, Strow's reading of
the spray can is not so unreasonable that he must lose, here and
now. Reasonable consumers are not chemists. The law does not expect
consumers to be well-versed in butter's thermodynamic properties.
Reasonable consumers are not chemists. The law does not expect
consumers to be well-versed in butter's thermodynamic properties.

Second, Judge Seeger finds that only when inspecting the back label
would a consumer realize that "Butter" might not mean actual
butter. But again, the Seventh Circuit shies away from allowing
back-label disclaimers to exonerate front-label deceptions as a
matter of law. Product manufacturers should not say one thing to a
consumer on the front while crossing their fingers behind their
back (label).

Finally, B&G is trying to change "butter" to "buttery." But a noun
is a noun, and an adjective is an adjective. A noun is a thing, and
an adjective describes a thing. The spray can didn't say that the
contents were buttery. The spray can said that the thing inside was
butter. The plain language reading of the text was not implausible.
Later, B&G can offer evidence that the spray can would not mislead
a reasonable consumer. A jury can provide a definitive answer to
that question, but the Court will not. Strow's reading is not so
implausible that it fails to state a claim.

So, much like its spray, B&G's motion does not stick. The motion to
dismiss the complaint based on the argument that the complaint did
not meet the plausibility standard is denied.

A full-text copy of the Court's Sept. 30, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/5n7urssh from
Leagle.com.


BALL STATE: Class Action Over COVID-Related Closures Can Proceed
----------------------------------------------------------------
Katie Stancombe, writing for The Indiana Lawyer, reports that a
student's class-action lawsuit filed against Ball State University
for COVID-related closures can proceed, the Court of Appeals of
Indiana has ruled. The appellate court determined that a statute
prohibiting such lawsuits impermissibly conflicts with the Indiana
Trial Rules.

In May 2020, college student Keller Mellowitz filed a putative
class action complaint against Ball State and its board of trustees
in response to closures and remote instruction prompted by the
COVID-19 pandemic. Specifically, Mellowitz asserted claims for
breach of contract and unjust enrichment based on Ball State's
retention of tuition and fees after it canceled in-person classes
and closed campus facilities.

After the complaint was filed, however, the Indiana General
Assembly enacted Public Law 166-2021, part of which was later
codified as Indiana Code Chapter 34-12-5. Among the changes was
Indiana Code Sec. 34-12-5-7, known as Section 7, which bars class
actions against postsecondary educational institutions for claims
of breach of contract and unjust enrichment arising from COVID-19.

When Ball State filed a motion for relief based on Section 7, the
Marion Superior Court ordered Mellowitz to file an amended
complaint eliminating his class allegations.

Mellowitz appealed, arguing that Section 7 is a procedural statute
that impermissibly conflicts with Indiana Trial Rule 23, which
governs class-action procedures. As such, he argued that Section 7
is a nullity.

The Court of Appeals agreed, reversing the trial court's decision
in the interlocutory appeal of Keller J. Mellowitz, on behalf of
himself and all others similarly situated v. Ball State University
and Board of Trustees of Ball State University and State of
Indiana, 22A-PL-337.

In its decision, the COA noted that Trial Rule 23 is a "purely
procedural rule," and that the right to bring a class action is a
"purely procedural right."

"Section 7 is a purely procedural statute, in that it does not
affect a plaintiff's existing substantive right to sue a
postsecondary educational institution for breach of contract or
unjust enrichment," Judge Terry Crone wrote. "Instead of furthering
judicial administrative objectives, however, it frustrates them by
encouraging a multiplicity of lawsuits from similarly situated
plaintiffs."

The appellate panel further dismissed Ball State's suggestion that
mandating judicial inefficiency predominantly furthers public
policy objectives by protecting Indiana's postsecondary educational
institutions "from widespread legal liability arising out of their
efforts to combat and mitigate the spread of COVID-19."

"We find this reasoning unpersuasive because, as already mentioned,
Section 7 does not abrogate the existing substantive right to sue
those institutions for breach of contract or unjust enrichment, so
it does not reduce the institutions' potential legal liability in
the slightest," Crone wrote.

Finally, the COA concluded that the conflict between the rule and
the statute "could not be more stark", in that Trial Rule 23 says a
claimant "may" bring a class action, while Section 7 says a
claimant "may not."

"Ball State and the State attempt to harmonize the two by noting
that Trial Rule 23(D)(4) allows a court to require that pleadings
be amended to eliminate class allegations. But Section 7's blanket
prohibition of class actions effectively dictates that a pleading
with class allegations may not be filed in the first place," Crone
wrote.

"In sum, both Trial Rule 23 and Section 7 ‘could not apply in a
given situation,'" he concluded. "Accordingly, we conclude that
Section 7 is a nullity, and therefore we reverse and remand for
further proceedings consistent with this decision."

The case was remanded for further proceedings.

The Ball State decision comes after the COA in March affirmed the
denial of motions to dismiss COVID breach-of-contract lawsuits
brought by students against Indiana University and Purdue
University in the case of The Trustees of Indiana University v.
Justin Spiegel; The Trustees of Purdue University v. Elijah Seslar,
Zachary Church, Jordan Klebenow, and Luke McNally, 21A-CT-175.

There, students similarly alleged breaches of contract when their
respective schools moved to online learning because of the COVID-19
pandemic.

Indiana Supreme Court justices were recently divided in declining
to grant transfer to that consolidated case. [GN]

BIG BISCUIT: Oakes Sues Over Servers' Unpaid Minimum, OT Wages
--------------------------------------------------------------
DEANNA OAKES AND JINGER BAKER, on behalf of themselves and all
others similarly situated, Plaintiffs v. THE BIG BISCUIT COMPANY,
LLC and BBR OVERLAND PARK, LLC d/b/a THE BIG BISCUIT, Defendants,
Case No. 2:22-cv-02395-JAR-TJJ (D. Kan., Oct. 3, 2022) is an action
against the Defendants for unpaid minimum wage and overtime
compensation, and related penalties and damages pursuant to the
Fair Labor Standards Act and the Kansas Wage Payment Act.

The Plaintiffs were employed as servers for Defendants. They seek
compensation for unpaid straight time and overtime premiums for all
hours worked, required, suffered, or permitted by the Defendants;
compensation for such wages wrongfully withheld; liquidated and/or
other damages as permitted by applicable law; and attorneys' fees,
costs, and expenses incurred in this action.

The Big Biscuit Company, LLC owns and operates The Big Biscuit
restaurants in Kansas.[BN]

The Plaintiffs are represented by:

          Michael Hodgson, Esq.
          THE HODGSON LAW FIRM, LLC
          3609 SW Pryor Rd.
          Lee's Summit, MO 64082
          Telephone: (816) 600-0117
          Facsimile: (816) 600-0137
          E-mail: mike@thehodgsonlawfirm.com

BOND PHARMACY: Fifth Circuit Affirms Dismissal of Denning's Claims
------------------------------------------------------------------
In the case, Randy Denning, Plaintiff-Appellant v. Bond Pharmacy,
Incorporated, doing business as Advanced Infusion Care, doing
business as Advanced Infusion Solutions, doing business as AIS
Healthcare, Defendant-Appellee, Case No. 21-30534 (5th Cir.), the
U.S. Court of Appeals for the Fifth Circuit affirms the district
court's judgment dismissing Denning's claims for lack of standing,
however, it modifies the judgment to make it without prejudice and
affirms as modified.

In 2019, Denning began receiving prescription medication
administered through a pain pump and filled by AIS Healthcare
("AIS"). In 2021, she discovered that AIS was billing her insurer
at a rate of $120 per day for allegedly unauthorized services.
Denning filed suit in state court, seeking damages for contract,
tort, and unjust enrichment claims.

In October 2019, Denning began receiving outpatient care for
chronic pain with medication administered through an intrathecal
pain pump. This pump is implanted under the skin and filled with a
customized medication that it delivers through a catheter directly
to the spinal cord. It can deliver medication at scheduled
intervals for several months before requiring a refill, enabling a
patient to receive day-to-day pain treatment outside of an
in-patient healthcare facility.

According to Denning, her physician prescribed medication to be
filled by AIS which is a national compounding pharmacy that
provides specialized home infusion therapy using pain pumps. She
signed two agreements with AIS in October 2019. The first
authorized AIS to provide services to Denning pursuant to the
orders of her physician. The second assigned to AIS insurance
benefits payable for products or services provided by the
pharmacy.

In February 2021, Denning discovered that AIS had billed her
insurer at a daily rate of $120 for services that she alleges
neither she nor her physician had authorized. The following month,
she filed a petition in Louisiana state court seeking compensatory
and punitive damages, and alternatively, restitution. Denning's
petition included state law claims for breach of contract, unjust
enrichment, and fraudulent misrepresentation. She asserted her
claims individually and on behalf of a class of hundreds of
similarly situated Louisiana patients billed by AIS over the last
decade.s

AIS removed the suit to federal district court and filed a motion
to dismiss the petition or strike the class action allegations. In
doing so, it argued that (1) the case should be dismissed under
Rule 12(b)(1) for lack of standing; (2) the claims for unjust
enrichment and fraudulent misrepresentation should otherwise be
dismissed under 12(b)(6) for failure to state a claim; and (3) if
claims remain, Denning's class action allegations should be
stricken for failure to show a predominance of common issues among
a proposed class.

According to AIS, Denning lacked standing to assert her claims
because she suffered no injury. It reasoned that Denning had not
alleged that she paid any of the billed amounts or that it had
threatened collection proceedings against her. Rather, she had
alleged only that her insurer wrongfully paid for billed services.
Thus, AIS argued, Denning had suffered no financial loss and
allegedly could not show an injury for standing purposes.

In her opposition to AIS' motion, Denning conceded that she
suffered no financial loss but averred that the alleged billing
practices nevertheless resulted in a redressable injury. According
to Denning, "a party to a contract undoubtedly has standing to file
a suit for breach of that contract," and several violations of
Louisiana law arising from AIS' billing activities could serve as a
basis for standing.

In August 2021, the district court granted AIS' Rule 12(b)(1)
motion to dismiss on grounds that Denning had failed to establish
standing for her claims. In its reasons, the district court
observed that "courts in other circuits are wrestling with the
question of whether a breach of contract alone, without any further
harm or injury, constitutes an injury in fact for standing
purposes." After noting that the Fifth Circuit has not directly
addressed this question, the district court concluded that "it
appears Article III standing requires a concrete injury to
plaintiff such that a breach of contract alone is an insufficient
injury in fact."

In support, the district court cited the Supreme Court's reasoning
in Spokeo, Inc. v. Robins that standing requires a concrete injury,
"even in the context of a statutory violation." However, it did not
rest its disposition on an injury in fact analysis and ultimately
held that Denning could not satisfy standing's redressability
element. The district court reasoned that "if the Plaintiff has not
suffered any concrete losses there is nothing to compensate." It
explained that the disgorgement of funds paid by Denning's insurer
would only redress the insurer's injury, not hers. The district
court then dismissed Denning's claims with prejudice. This appeal
followed.

On appeal, Denning argues that the district court erred in holding
that she had failed to demonstrate a sufficient injury to support
Article III standing. She also advances an unjust enrichment claim
for the amounts improperly collected from her insurer by AIS. Last,
she contends that the district court erred in dismissing her case
with prejudice.

The Fifth Circuit first examines whether the breach as alleged in
Denning's contract and tort claims is an injury for standing
purposes. It concludes that it is. It says traditional and recent
precedent arising from both the Fifth Circuit and the Supreme Court
reflect that a breach of contract is a sufficient injury for
standing purposes.

In light of this applicable precedent, the Fifth Circuit holds that
Denning has shown an injury in fact through her breach of contract
claims. But its analysis does not end there. Although Denning has
established injury in fact, she cannot get past the redressability
prong required to establish standing. This is because her injury,
as she alleges it, is not redressable by the compensatory and
punitive damages that she seeks. Put another way, rendering an
award of damages in favor of Denning does not redress her insurer's
injury of being subjected to AIS' unauthorized billing practices.

For these reasons, the Fifth Circuit concludes that the district
court erred in holding that Denning failed to show an injury in
fact through her associated breach of contract and tort claims.
However, because it agrees with the district court that Denning's
claims are not redressable by the damages she seeks, it affirms its
dismissal of her claims for lack of standing.

Next, the Fifth Circuit turns to whether Denning's loss of
patrimony as alleged in her unjust enrichment claim is an injury
for standing purposes. Denning argues that, as a consequence of
AIS' unauthorized billing for services not rendered, the amount of
insurance coverage available to her for a particular term was
improperly depleted. In making this argument, she primarily relies
on Louisiana Civil Code article 2299, which sets out a cause of
action for obligation to restore payment or a thing not owed.

For purposes of its analysis, the Fifth Circuit assumes without
deciding that Denning has sufficiently pled an injury in fact for
standing purposes through her unjust enrichment claim. Again,
however, she cannot establish redressability. The text of Article
2299 provides that "a person who has received a payment or a thing
not owed to him is bound to restore it to the person from whom he
received it." Both parties acknowledge that AIS received payment
that it was allegedly not owed from Denning's insurer, not from
Denning. Thus, even if Denning prevailed on this claim and received
restitution from AIS, it would not restore her depleted insurance
coverage. Accordingly, Denning cannot show a "substantial
likelihood" that the restitution she seeks would remedy the injury
she alleges.

Because Denning has failed to satisfy the redressability element of
her unjust enrichment claim, the Fifth Circuit affirms the district
court's dismissal of this claim for lack of standing.

Finally, Denning argues that the district court erred when it
dismissed her claims with prejudice instead of without prejudice.
The Fifth Circuit agrees. Ordinarily, when a complaint is dismissed
for lack of jurisdiction, including lack of standing, it should be
without prejudice. As AIS observes, the district court's dismissal
with prejudice appears to be a "scrivener's" error. The Fifth
Circuit thus modifies the district court's judgment dismissing
Denning's claims with prejudice to make it without prejudice and
affirms the judgment as modified.

A full-text copy of the Court's Sept. 30, 2022 Order is available
at https://tinyurl.com/4bb3u3t7 from Leagle.com.


BP PLC: Judge Tosses Gas Price-Fixing Class Action Lawsuit
----------------------------------------------------------
Jeff McDonald, writing for The San Diego Union-Tribune, reports
that the news keeps getting worse for California drivers.

In a week when the price of a gallon of gas rose for the 18th
consecutive day, notching an all-time record, a federal judge in
San Diego has dismissed a class-action lawsuit that accused major
oil companies of colluding to keep fuel costs artificially high.

The decision was published by U.S. District Court Judge Jinsook
Ohta, seven months after lawyers representing the owners of a North
County gas station squared off in her courtroom against some of the
largest oil conglomerates in the world.

In short, the judge ruled the plaintiffs could not establish that
communications between traders from rival companies helped
executives raise the cost of gasoline for California consumers.

"While defendants would certainly have an economic motive to act in
the manner alleged by plaintiffs, that alone cannot establish an
antitrust violation," the judge wrote in her 103-page ruling.

"Antitrust wrongdoing consists of concerted action pursuant to an
illegal agreement, not independent profit-maximizing actions based
on market conditions," she said.

The decision, which affirmed a tentative ruling handed down ahead
of the February hearing, comes as the average fuel price in San
Diego has risen to a record $6.42 per gallon.

As of Oct. 4, the area's average cost for a gallon of gas was up
about 3 cents since Oct. 3, 52 cents over the past week and $1.18
in the past month, according to the running AAA analysis of
nationwide fuel costs.

In February, when dozens of attorneys crowded into Judge Ohta's
courtroom to argue their respective positions on allegations of
price-fixing, the average cost of a gallon of gas in San Diego was
$4.75.

Attorneys representing Persian Gulf Inc., the filling station in
Escondido that is serving as lead plaintiff in the class-action
litigation, did not immediately respond to a request for comment on
the judge's ruling.

However, the plaintiffs' counsel has waged the legal battle since
2015, so a request for review by the U.S. 9th Circuit Court of
Appeals would not be a surprise.

The defendants, entities that are owned by some of the richest
energy corporations on the planet, include BP, Chevron, Shell Oil,
ExxonMobil, Phillips 66, Alon USA and Tesoro.

In court filings, the plaintiffs' firm Robbins Geller Rudman & Dowd
argued that the oil companies coordinated their respective refinery
operating and maintenance schedules, which affected how much gas
was produced and ultimately cost consumers more than $20 billion in
recent years alone.

"They worked together to discourage imports, increase exports, keep
their refineries running under capacity and manipulate prices
through their trading activity," they wrote in a court filing last
year.

"Defendants have reaped billions of dollars in profits from their
scheme, and the massive price spike seen after the Torrance
explosion has never returned to normal," they added.

Several of the defendants reached declined to comment on the
ruling; others did not respond to requests for interviews. An
ExxonMobil official issued a brief statement on Oct. 4.

"We agree with the decision of the court," spokesperson Todd
Spitler said by email.

In a litany of court filings dating back years and during the
February hearing on the motion for summary judgment, oil company
attorneys denied each of the allegations put forward by Persian
Gulf Inc. and its lawyers.

"After years of costly discovery, plaintiffs have zero evidence of
this claimed agreement" between oil companies, they argued in
briefs filed in advance of the hearing last spring.

"Their attempts to infer a conspiracy . . . fall short of
satisfying the governing legal standard," the defense team said.
"The conduct they identify is entirely consistent with
non-conspiratorial, independent decision-making by individual
defendants."

The lawsuit alleged that, among other practices, the oil companies
signed "exchange agreements" between themselves that allowed the
firms to move gas back and forth in ways that kept prices higher
than they might be otherwise.

Oil companies rejected the assertion that the agreements were
designed to take advantage of pricing when refineries were down for
maintenance or otherwise out of service.

They said compacts were convenient and cost-saving for the
companies, and allowed the companies to expand their geographic
reach to promote competition.

The judge agreed with the oil companies.

"While these types of agreements can be misused as part of an
unlawful conspiracy, without more (evidence) this court cannot
conclude that exchange agreements, in and of themselves, raise a
reasonable inference of conspiracy," she wrote.

Over the course of the litigation, plaintiffs compiled evidence
that they said showed traders exchanging information with rival
companies -- actions they say undermine price competitiveness.

In one example from 2012, a BP trader allegedly disclosed
confidential information in asking a counterpart from Shell if
there was surplus gas available.

The BP refinery unit was running "at min rates until early May in
order to build … inventory back to safety stock level," the
trader conveyed, according to the judge's ruling.

Plaintiffs argued that it was improper to alert a business rival to
an operating practice with specific dates because they could use
the information to increase profits by limiting gas supplies.

But the judge rejected that claim.

"The court is satisfied that defendants produced plausible and
justified business reasons for traders to share information with
one another," she ruled. "Defendants provide evidence that traders
needed to buy and sell gas from each other to meet their
refineries' time-sensitive supply needs."

For years, California gas prices have remained stubbornly higher
than the national average. The $6.41 average cost in California
posted on Oct. 4 by AAA was nearly 70 percent higher than the $3.81
national average.

Analysts have historically blamed California's clean-air standards
for the high cost of fuel, but state elected officials and
consumers are growing increasingly frustrated with the status quo.

For example, Gov. Gavin Newsom accused oil companies of "extortion"
and announced that he would direct the Air Resources Board to
expedite the transition from the summer blend of fuel to the less
expensive winter blend.

State Senate President Toni Atkins, D-San Diego, issued a statement
with Assembly Speaker Anthony Rendon, D-Lakewood, pledging to
explore a windfall profit tax when the legislature convenes early
next year.

Many of the defendants in the class-action lawsuit have reported
record quarterly profits in recent months.

ExxonMobil told shareholders in July that it recorded $17.9 billion
in earnings during the second quarter of 2022, nearly four times
the $4.7 billion the company reported over the same quarter last
year and more than triple the $5.5 billion reported for the first
three months of this year.

Chevron reported second-quarter profits of $11.6 billion, almost
quadruple the $3.1 billion it earned in the same period in 2021.
[GN]

BRISTOL-MYERS SQUIBB: Bernstein Suit Remanded to State Court
------------------------------------------------------------
In the lawsuit captioned HOWARD BERNSTEIN, on behalf of himself and
all others similarly situated, Plaintiff v. BRISTOL-MYERS SQUIBB
CO., et al., Defendant, Case No. 21-20452 (KM) (CLW) (D.N.J.),
Judge Kevin McNulty of the U.S. District Court for the District of
New Jersey issued an Opinion:

   (1) denying the Defendants' motion to transfer venue; and

   (2) granting the Plaintiff's motion to remand the case to
       state court.

Bernstein, on behalf of himself and others similarly situated,
filed this putative class action against Defendants Bristol-Myers
Squibb Co. ("BMS") and several of its directors and officers in New
Jersey state court, alleging that the Form S-4 registration
statement BMS filed with the U.S. Securities and Exchange
Commission pertaining to certain Contingent Value Rights (the
"Registration Statement") was false and misleading, in violation of
the Securities Act of 1933, 15. U.S.C. Section 77a, et seq.

On Nov. 12, 2021, the Plaintiff filed the complaint in this action
in the Superior Court of New Jersey, Law Division, Union County.
The complaint is related to BMS's 2019 acquisition of Celgene
Corporation, the consummation of which included BMS issuing
approximately 714.9 million new shares of common stock and 714.9
Contingent Value Rights ("CVRs") to former holders of Celgene
stock. The Plaintiff alleges that the Registration Statement BMS
filed in connection with the acquisition was false and misleading,
in violation of the Securities Act of 1933 (the "'33 Act"), because
it failed to disclose actions BMS was taking that would delay
approval by the Food and Drug Administration of a blockbuster
cancer therapy Celgene had been developing, thereby preventing a
$6.4 billion payout promised to CVR holders.

On Dec. 10, 2021, BMS timely removed the case to this Court,
asserting federal subject matter jurisdiction pursuant to the Class
Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. Section 1332(d), et
seq. On the same day, the Defendants filed a motion to transfer the
case to the United States District Court for the Southern District
of New York, arguing that transfer is appropriate because three
substantially similar actions already were pending in the Southern
District of New York.

On Dec. 15, 2021, the Plaintiff filed a motion to remand the case
to state court pursuant to 28 U.S.C. Section 1447(c), arguing that
15 U.S.C. Section 77v(a), the "removal ban," prohibits the removal
of cases, such as this one, "arising under" the '33 Act. The
Plaintiff also seeks counsel fees and costs incurred as a result of
improper removal.

On Jan. 11, 2022, the Defendants filed a brief in opposition to the
Plaintiff's motion for remand, and the Plaintiff filed a brief in
opposition to the Defendants' motion to transfer venue. On Jan. 19,
the parties filed reply briefs in further support of their
motions.

The Court will take up Plaintiff's motion to remand first, as the
Defendants' motion to transfer need only be considered if the Court
determines that the case was properly removed to federal court in
the first instance.

                       a. Motion to Remand

Judge McNulty holds that CAFA does not provide federal subject
matter jurisdiction over this case. It is true, as the Defendants
point out, that the case meets the threshold jurisdictional
requirements of CAFA under Section 1332(d)(2), which provides for
removal of certain class actions. It is also true, however, that
CAFA provides that Section 1332(d)(2) will not apply to any class
action that solely involves a claim concerning a covered security
as defined under Section 16(f)(3) of the Securities Act of 1933 and
Section 28(f)(5)(E) of the Securities Exchange Act of 1934.

The CVRs at issue were publicly traded on the New York Stock
Exchange at the time of the alleged misrepresentation and,
therefore, fall under the plain definition of "covered security,"
Judge McNulty explains. Given that the "covered security" exception
applies, the Court does not have subject matter jurisdiction under
CAFA.

Unable to cite to any case in which a defendant successfully
removed an analogous class action that only involved claims
regarding a covered security under the '33 Act, the Defendants rely
primarily on legislative history and the purported underlying
purpose of CAFA. When Congress drafted Section 1332(d)(9)(A), say
the Defendants, it only intended to carve out claims concerning
covered securities brought under state law. But the Court need not
consider CAFA's legislative history or statutory purpose, as the
meaning of Section 1332(d)(9)(A) is clear and unambiguous.

Even if the Court did consider the Defendants' arguments from
legislative history, it would not lead to a different
interpretation, Judge McNulty holds. The Defendants assert that
according to the Senate Report on CAFA, the "covered security"
exception was "meant to apply to 'securities class actions covered
by the Securities Litigation Reform Act,' that is state law
securities class actions for a 'precipitous drop in the value of
its stock, based on fraud.'" But the words "state law" seem to have
originated with the Defendants themselves; they do not appear in
the legislative history with respect to Section 1332(d)(9)(A).

The Defendants' arguments from statutory purpose are similarly
unconvincing, Judge McNulty states. As the Plaintiff correctly
points out, Congress enacted CAFA to expand diversity jurisdiction,
not federal question jurisdiction, and it enacted certain express
exceptions so that it would "not to disturb the carefully crafted
framework for litigating in this context."

That framework, of course, refers to the '33 Act and the Securities
Exchange Act of 1934, and subsequent legislation that further built
upon these seminal securities laws, including the Private
Securities Litigation Reform Act of 1995 ("PSLRA"), Pub. L. 104-67,
and the Securities Litigation Uniform Standards Act of 1998
("SLUSA"), Pub. L. 105-33, Judge McNulty explains. And it is
settled law that part of that framework unquestionably includes a
bar to removal of class actions, such as this one, brought in state
court alleging only '33 Act violations.

The plain language of CAFA bars the Court from exercising subject
matter jurisdiction over this action. The case, therefore, must be
remanded to the state court from which it was removed.

                   b. Motion to Transfer Venue

In light of the Court's determination that it lacks subject matter
jurisdiction and that the case must be remanded to state court, the
Court need not consider the merits of the Defendants' motion to
transfer venue. That transfer motion must be denied.

For the reasons set forth, the Defendants' motion to transfer venue
is denied, and the Plaintiff's motion to remand is granted without
an award of fees and costs.

An appropriate order follows.

A full-text copy of the Court's Opinion dated Sept. 22, 2022, is
available at https://tinyurl.com/yckr5kj3 from Leagle.com.


CALIBER HOME: Faces Katz Class Suit Over Telemarketing Calls
------------------------------------------------------------
SAMUEL KATZ, individually and on behalf of all others similarly
situated, Plaintiff v. CALIBER HOME LOANS, INC. Defendant, Case No.
5:22-cv-05680-VKD (N.D. Cal., Oct. 3, 2022) arises from the
Defendant's violations of the Telephone Consumer Protection Act for
making illegal telemarketing calls to numbers on the National Do
Not Call Registry, including Plaintiff.

According to the complaint, the call offered the Defendant's
services from the Caliber Home Loan Mortgage Refinance Team. The
Plaintiff never provided his consent or requested these calls. The
Plaintiff and all members of the Class have been harmed by the
Defendant's acts because their privacy has been violated, and they
were annoyed and harassed. In addition, the calls occupied their
telephone lines, rendering them unavailable for legitimate
communication, says the suit.

Caliber Home Loans, Inc. provides commercial finance services. The
Company offers home loans, refinance, consultancy, and military
lending services.[BN]

The Plaintiff is represented by:

          Anthony I. Paronich, Esq.
          PARONICH LAW, P.C.
          350 Lincoln Street, Suite 2400
          Hingham, MA 02043
          Telephone: (617) 738-7080
          Facsimile: (617) 830-0327
          E-mail: anthony@paronichlaw.com

               - and -

          Andrew W. Heidarpour, Esq.
          HEIDARPOUR LAW FIRM, PPC
          1300 Pennsylvania Avenue NW, 190-318
          Washington, DC 20004
          Telephone: (202) 234-2727
          E-mail: aheidarpour@hlfirm.com

CENTERPLATE INC: Dougan Labor Suit Removed to S.D. California
-------------------------------------------------------------
The case styled KEVIN DOUGAN, as an individual and on behalf of all
others similarly situated, Plaintiff v. CENTERPLATE, INC., a
corporation; SODEXO, INC., a corporation; CENTERPLATE OF DELAWARE,
INC., a corporation; and DOES 1 through 50, inclusive, Defendants,
Case No. 37-2022-00030603-CU-OE-CTL, was removed from the Superior
Court of the State of California for the County of San Diego to the
U.S. District Court for the Southern District of California on Oct.
3, 2022.

The Clerk of Court for the Southern District of California assigned
Case No. 3:22-cv-01496-BEN-AGS to the proceeding.

The Plaintiff brought this case alleging six causes of action: (1)
meal period violations (2) rest period violations; (3) untimely
payment of wages; (4) wage statement violations; (5) waiting time
penalties; and (6) unfair competition.

Centerplate, Inc. is a food and beverage corporation serving
entertainment venues in North America, and the UK.[BN]

The Defendants are represented by:

          N Adam Y. Siegel, Esq.
          JACKSON LEWIS P.C.
          725 South Figueroa Street, Suite 2500
          Los Angeles, CA 90017  
          Telephone: (213) 689-0404
          Facsimile: (213) 689-0430
          E-mail: Adam.Siegel@jacksonlewis.com

               - and -

          John P. Nordlund, Esq.
          Annalyse E. Butler, Esq.
          JACKSON LEWIS P.C.
          225 Broadway, Suite 2000
          San Diego, CA 92101
          Telephone: (619) 573-4900
          Facsimile: (619) 573-4901
          E-mail: John.Nordlund@jacksonlewis.com
                  Annalyse.Butler@jacksonlewis.com

CHARLES SCHWAB: Laughead Sues Over Biometric Voice Print Recording
------------------------------------------------------------------
KIRK LAUGHEAD, individually and on behalf of others similarly
situated, Plaintiff v. THE CHARLES SCHWAB CORPORATION, Defendant,
Case No. 3:22-cv-01498-AJB-JLB (S.D. Cal., Oct. 3, 2022) seeks to
put an end to the Defendant's unlawful use, examination, and
recording of Plaintiff's and putative Class members' biometric
voice prints without express written consent in violation of the
California Invasion of Privacy Act.

According to the complaint, the Defendant utilizes a system that
enables it to examine the voice of anyone that calls it to
determine the truth or falsity of the callers' statements. The
software combines audio, voice, and artificial intelligence
technologies to compare the callers' voices to a comprehensive
database of recordings and metrics. The system Defendant uses
allows it to authenticate or refute the true identity of callers,
among other things, says the suit.

The Plaintiff alleges that Defendant was secretly using Schwab
voice ID Service technology for years prior to publishing its
existence and seeking enrollment. The Defendant does not obtain
"express written consent" from any callers before examining and
analyzing their voices, the Plaintiff asserts.

The Charles Schwab Corporation is an American multinational
financial services company.[BN]

The Plaintiff is represented by:

          Joshua B. Swigart, Esq.
          SWIGART LAW GROUP, APC
          2221 Camino del Rio S, Ste 308
          San Diego, CA 92108
          Telephone: (866) 219-3343
          E-mail: Josh@SwigartLawGroup.com

               - and -

          Daniel G. Shay, Esq.
          LAW OFFICE OF DANIEL G. SHAY
          2221 Camino del Rio S, Ste 308
          San Diego, CA 92108
          Telephone: (619) 222-7429
          E-mail: DanielShay@TCPAFDCPA.com

CHIN CHIN: Faces Guadalupe Wage-and-Hour Suit in California
-----------------------------------------------------------
MARCO GUADALUPE, as an individual and on behalf of all others
similarly situated, Plaintiff v. CHIN CHIN EL SEGUNDO, LLC, a
California corporation; CHIN CHIN BRENTWOOD, LTD., a California
corporation; CHIN CHIN STUDIO CITY, LTD., a California corporation;
CHIN CHIN ENCINO, LTD., a California corporation; CHIN CHIN
INTERNATIONAL, LTD., a California corporation; CHIN CHIN MARINA,
LTD., a California corporation; CHIN CHIN MISSION VIEJO, L.P., a
California corporation; and DOES 1 through 100, Defendants, Case
No. 22STCV32361 (Cal. Super., Los Angeles Cty., Oct. 3, 2022) seeks
to recover civil penalties under the California Labor Code arising
from the Defendants' alleged unlawful labor policies and
practices.

According to the complaint, the Labor Code violations of the
Defendants include failure to pay Plaintiff and other aggrieved
employees all earned overtime compensation, failure to pay the
statutory minimum wage for all hours worked, failure to provide all
legally required meal and rest periods, failure to furnish
complete, accurate, itemized wage statements, failure to pay all
final wages upon their separation of employment, failure to pay all
earned wages at least twice during each calendar month, and failure
to maintain accurate records.

The Plaintiff was employed by Defendants as a non-exempt "Lead
Cook" at the time of his initial hire in approximately November
2019, then promoted to "Lead Chef" as a salaried employee for
approximately six months, then returned to non-exempt status until
he was laid off in October 2021.

The Defendants operate a restaurant chain that specializes in
Chinese cuisine, with locations throughout Southern California and
Nevada.[BN]

The Plaintiff is represented by:

          Paul K. Haines, Esq.
          Fletcher W. Schmidt, Esq.
          Andrew J. Rowbotham, Esq.
          Susan J. Perez, Esq.
          HAINES LAW GROUP, APC
          2155 Campus Drive, Suite 180
          El Segundo, CA 90245
          Telephone: (424) 292-2350
          Facsimile: (424) 292-2355
          E-mail: phaines@haineslawgroup.com
                  fschmidt@haineslawgroup.com
                  arowbotham@haineslawgroup.com
                  sperez@haineslawgroup.com

COAST DENTAL: Faces Davis Suit Over Illegal Phone Calls
-------------------------------------------------------
AMANDA DAVIS, individually and on behalf of all others similarly
situated, Plaintiff v. COAST DENTAL SERVICES, LLC, Defendant, Case
No. 158482029 (Fla. Cir., 13th Judicial, Hillsborough Cty., Oct. 3,
2022) is a class action against the Defendant for alleged violation
of the Florida Telephone Solicitation Act by engaging in telephonic
sales calls to consumers to solicit the sale of consumer goods
and/or services without having secured prior express written
consent.

According to the complaint, the Defendant's telephonic sales calls
have caused Plaintiff and the Class members harm, including
violations of their statutory rights, statutory damages, annoyance,
nuisance, and invasion of their privacy. Through this action,
Plaintiff seeks an injunction and statutory damages on behalf of
herself and the Class members and any other available legal or
equitable remedies resulting from the unlawful actions of
Defendant, says the suit.

Coast Dental Services, LLC is a dental care services provider with
its primary place of business and headquarters in Tampa,
Florida.[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
          Telephone: (305) 479-2299
          E-mail: ashamis@shamisgentile.com
                  gberg@shamisgentile.com

               - and -

          Scott Edelsberg, Esq.
          Christopher Gold, Esq.
          EDELSBERG LAW, P.A.
          20900 NE 30th Ave., Suite 417
          Aventura, FL 33180
          Telephone: (786) 289-9471
          Facsimile: (786) 623-0915
          E-mail: scott@edelsberglaw.com
                  chris@edelsberglaw.com

               - and -

          Jacob Phillips, Esq.
          NORMAND PLLC
          3165 McCrory Place, Ste. 175
          Orlando, FL 32803
          Telephone: (407) 603-6031
          E-mail: Jacob.phillips@normandpllc.com
                  ean@normandpllc.com

CONAGRA BRANDS: Court Grants Bid to Dismiss Huston Class Suit
-------------------------------------------------------------
In the case, APRIL HUSTON, Plaintiff v. CONAGRA BRANDS, INC.,
Defendant, Case No. 4:21-cv-04147-SLD-JEH (C.D. Ill.), Judge Sara
Darrow of the U.S. District Court for the Central District of
Illinois, Rock Island Division, enters an order granting the
Defendant's motion to dismiss, motion for leave to file a reply
brief, first motion for leave to file a notice of supplemental
authority, and second motion for leave to file a notice of
supplemental authority.

The Defendant manufactures, labels, markets, and sells a "Chewy
Fudge Brownie Mix" under the Duncan Hines brand. The front of the
box depicts several baked brownies and describes the product as
"thick and fudgy."

Ms. Huston purchased the Brownie Mix on one or more occasions,
believing, based on the representations on the box, that "it would
contain fudge and/or ingredients essential to fudge." However, "due
to the relatively greater amount of vegetable oil" compared to
dairy fat ingredients, she did not have the experience she desired
of eating fudge.

This is because, the Plaintiff alleges, "milkfat is the central
component" of fudge. Fat is a necessary ingredient for fudge
because it affects its flavor and texture, and while "fat
ingredients are typically from dairy or vegetable oils," dairy
ingredients are preferred because they "impart a creamy, rich taste
to fudge." On the other hand, alternatives to milk fat, such as
vegetable oils, are less desirable because they "do not melt at
mouth temperature and leave a waxy mouthfeel." She points to a
variety of fudge recipes and dictionary definitions of fudge that
include dairy, generally butter, milk, or cream.

The Plaintiff initiated this class action suit on Sept. 4, 2021,
bringing claims for violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1-12, id.
at 13; violations of Iowa and Arkansas consumer fraud acts; breach
of express warranty, breach of the implied warranty of
merchantability, and violation of the Magnuson-Moss Warranty Act
("MMWA"), 15 U.S.C. Sections 2301-12; negligent misrepresentation;
common law fraud; and unjust enrichment.

The Plaintiff seeks to represent two classes: a class consisting of
all persons in the state of Illinois who purchased the Brownie Mix
during the relevant statute of limitations period, and a class
consisting of all persons in the states of Iowa and Arkansas who
purchased the Mix during the relevant statute of limitations
period. She asks for monetary damages, statutory and/or punitive
damages, and interest; preliminary and permanent injunctive relief
directing Defendant to correct the labeling on the Brownie Mix and
to refrain from similar practices in the future; and costs and
expenses.

The instant motions followed.

The Defendant moves for leave to file a reply brief in support of
its motion to dismiss, arguing that a reply is needed so that
Defendant can respond to the Plaintiff's citations to inapposite
case law and mischaracterizations of Defendant's arguments. The
Plaintiff has filed no response to the motion.

Judge Darrow states that for all motions not for summary judgment,
no reply to the response is permitted without leave of Court.
Typically, reply briefs are permitted if the party opposing a
motion has introduced new and unexpected issues in his response to
the motion, and the Court finds that a reply from the moving party
would be helpful to its disposition of the motion. Because the
proposed reply would be helpful to the Court and in the interest of
completeness, Judge Darrow grants the Defendant's motion for leave
to file a reply. The Clerk is directed to file the proposed reply,
ECF No. 12-1, on the docket.

The Defendant has also filed a motion for leave to file a notice
advising the Court of a recent Central District of Illinois
opinion, Reinitz v. Kellogg Sales Co., Case No. 21-cv-1239-JES-JEH,
2022 WL 1813891 (C.D. Ill. June 2, 2022), and a motion for leave to
file a notice advising the Court of four recent decisions from
other districts, namely, Burns v. Gen. Mills Sales, Inc., Case No.
3:21-cv-1099-DWD, 2022 WL 3908783 (S.D. Ill. Aug. 30, 2022); Rice
v. Dreyer's Grand Ice Cream, Inc., 21 C 3814, 2022 WL 3908665 (N.D.
Ill. Aug. 30, 2022); Lederman v. Hershey Co., Case No. 21-cv-4528,
2022 WL 3573034 (N.D. Ill. Aug. 19, 2022); and Spurck v. Demet's
Candy Co., 21 CV 05506 (NSR), 2022 WL 2971957 (S.D.N.Y. July 27,
2022). The Plaintiff has filed nothing to suggest it opposes either
motion.

Judge Darrow says the Court routinely grants motions for leave to
provide supplemental authority when considering motions to dismiss,
even where the party has already filed a motion or response. She
grants the Defendant's motions to file notices of supplementary
authority. The Clerk is directed to file the first notice of
supplementary authority, ECF No. 13-1, along with its exhibit, ECF
No. 13-2, and the second notice of supplementary authority, ECF No.
14-1, along with its exhibits, ECF Nos. 14-2, 14-3, 14-4, 14-5, on
the docket.

The Defendant moves to dismiss the complaint in its entirety
pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1).
First, it asserts that the Plaintiff has failed to allege a
deceptive act on its part because no reasonable consumer would be
misled by the "Chewy Fudge Brownie Mix" and "Thick and Fudgy"
statements on the box containing the mix, defeating her Illinois,
Iowa, and Arkansas consumer protection claims. It also maintains
that the lack of any actionable misrepresentation precludes her
common law claims. It contends that because the Plaintiff has not
alleged fraud on the part of Defendant with the particularity
required by Rule 9(b), the Court must dismiss all claims sounding
in fraud.

The Defendants additionally argues that the fraud and ICFA claims
must be dismissed because the Plaintiff has failed to allege
scienter; the negligent misrepresentation claim fails because she
does not claim she suffered physical injury or harm to property,
nor is the Defendant in the business of supplying information, as
would be required under Illinois law; her breach of warranty claims
(and therefore her MMWA claim) fail because of a lack of privity,
there is no actionable statement that could sustain such claims,
and she did not provide the requisite pre-suit notice; her unjust
enrichment claim must be dismissed because it does not constitute
an independent cause of action under Illinois law; and her Iowa and
Arkansas consumer protection claims fail because she did not abide
by those states' particular requirements for class action lawsuits,
id. at

Moreover, the Defendant believes that the Plaintiff lacks standing
to pursue injunctive relief and to pursue claims on behalf of Iowa
and Arkansas putative class members. It requests that the Court
dismisses the Plaintiff's complaint with prejudice.

Judge Darrow turns first to the Defendant's arguments as to whether
the Plaintiff has stated claims under the various causes of action.
She holds that even accepting these statements as true, the
Plaintiff has failed to adequately allege that a reasonable
consumer would be misled by the language on the Brownie Mix box.
First, she never alleges that these definitions and recipes are
reflective of a reasonable consumer's assumptions as to the
contents of fudge or that the reasonable consumer is even aware of
them. Second, her own allegations are inconsistent as to whether
fudge must contain milk fat to be worthy of the name.

The Plaintiff's concession within her complaint that fudge can be
made with vegetable oils instead of dairy ingredients forecloses
the inference that fudge cannot be made with vegetable oils instead
of dairy ingredients. Thus, she has not satisfactorily pleaded a
deceptive practice. Because the Plaintiff has failed to
sufficiently plead that a significant portion of the general
consuming public could be misled by the use of the words "fudge"
and "fudgy" on the box of Brownie Mix, her ICFA claim must be
dismissed.

The Plaintiff's claims pursuant to Iowa and Arkansas consumer fraud
acts fail for the same reason. As the Defendant notes,these claims
are governed by the same reasonable consumer standard articulated.
As Judge Darrow discussed, the Plaintiff did not adequately allege
that a reasonable consumer would find the Brownie Mix label
misleading. Thus, she has not alleged any deceptive act on the
Defendant's part. The Iowa and Arkansas state consumer fraud claims
are dismissed.

The Plaintiff predicates her breach of warranty and MMWA claims on
the assertion that the Defendant "expressly and impliedly warranted
to her that the Brownie Mix contained fudge made with the expected
dairy ingredients of butter and milk instead of substitutes for
these ingredients in the form of vegetable oils. The Defendant
argues that the Plaintiff has failed to point to an "actionable
statement" that could constitute an affirmation of fact or promise
that the Brownie Mix contains dairy ingredients.

Judge Darrow agrees. Nothing in the complaint suggests that the
Defendant expressly stated anywhere that the Mix incorporated dairy
ingredients, and, as indicated, it is not reasonable to interpret
the use of the word "fudge" or "fudgy" as a promise that a product
is made with dairy. Nor has she adequately alleged breach of the
implied warranty of merchantability. Because she has failed to
allege that a product with the label of "fudge" must contain dairy
products, she does not succeed in pleading here that the Brownie
Mix was not merchantable due simply to its lack of milk fat.
Therefore, because both her express and implied warranty claims
fail, the Plaintiff cannot sustain a claim under the MMWA.

Next, the Plaintiff asserts that the Defendant falsely represented
the Brownie Mix by labeling it as "fudge" and thus holding it out
as containing dairy ingredients when it did not. The Defendant
disputes that she has pled an actionable misrepresentation and
argues that the Brownie Mix label did not contain any false
statements.

Judge Darrow finds that the Plaintiff has not pled a false
statement of material fact, as the Brownie Mix label contains no
statement that the Mix has dairy ingredients, and it is not
reasonable to interpret the use of the word "fudge" as a
representation that a product contains dairy. Accordingly, the
negligent misrepresentation claim is dismissed.

As with the negligent misrepresentation claim, the Defendant argues
that the Plaintiff has not alleged a false statement of material
fact, and Judge Darrow agrees for the same reason she stated. The
Defendant also contends that the Plaintiff has failed to plead
scienter. Nowhere in the complaint does the Plaintiff provide any
non-conclusory allegations that the Defendant knew that its use of
the label "fudge" constituted a false statement or intended to
defraud her. The Plaintiff's common-law fraud claim is accordingly
dismissed.

The Plaintiff also alleges unjust enrichment due to the Defendant's
misrepresentation of the dairy content in the Brownie Mix; thus,
her unjust enrichment claim is premised on the conduct underlying
her claims for fraud and misrepresentation. The Seventh Circuit has
affirmed that "where the plaintiff's claim of unjust enrichment is
predicated on the same allegations of fraudulent conduct that
support an independent claim of fraud, resolution of the fraud
claim against the plaintiff is dispositive of the unjust enrichment
claim as well." As the Court has dismissed all other claims in this
suit, the unjust enrichment claim cannot stand. It is, accordingly,
dismissed.

Because Judge Darrow has dismissed all of the Plaintiff's claims,
she need not address the Defendant's argument that the Plaintiff
lacks standing to pursue injunctive relief or to represent Iowa and
Arkansas putative class members.

Finally, the Defendant requests that the Plaintiff's complaint be
dismissed with prejudice. The Seventh Circuit has stated that "a
plaintiff should be given at least one opportunity to try to amend
her complaint before the entire action is dismissed." The Plaintiff
has not yet had the opportunity to amend her complaint, and so the
Court will permit her to file an amended complaint to attempt to
remedy the deficiencies identified. As such, Judge Darrow declines
to dismiss the complaint with prejudice.

For the foregoing reasons, Judge Darrow grants the Defendants
motion to dismiss, motion for leave to file a reply brief, first
motion for leave to file a notice of supplemental authority, and
second motion for leave to file a notice of supplemental authority.
Huston may file an amended complaint within 14 days of entry of the
Order. If she does not file an amended complaint by that deadline,
the suit will be dismissed with prejudice.

A full-text copy of the Court's Sept. 30, 2022 Order is available
at https://tinyurl.com/3wperr4x from Leagle.com.


COOK COUNTY, IL: Bid for Summary Judgment in Alicea v. Dart Granted
-------------------------------------------------------------------
In the case, ELIZABETH ALICEA, MICHELLE URRUTIA, KATINA RAMOS, and
JACK ARTINIAN, individually, and on behalf of all others similarly
situated, Plaintiffs v. THOMAS J. DART, individually, and in his
capacity as Sheriff of Cook County, et al., Defendants, Case No.
18-cv-05381 (N.D. Ill.), Judge John F. Kness of the U.S. District
Court for the Northern District of Illinois, Eastern Division,
grants the Defendants' motion for summary judgment.

Mr. Dart operates courthouse holding cells in Cook County,
Illinois, which hold detainees before and after they are sent to
court. The holding cells are arranged in various sizes and
configurations, but each contains a toilet which individuals may
use when held in the cell. A detainee's placement in a particular
cell is based on a few factors, including the detainee's sex and
the courtroom in which they are to appear.

The Sheriff's office places cameras in and around the Cook County
Department of Corrections, County courthouses, and other Sheriff's
office facilities. The stated purpose of those cameras is to
enhance security. To that end, the procedures for requesting,
viewing, downloading, storing, and retaining video surveillance
footage from the cameras are subject to the Sheriff's Office Video
Policy. That policy provides that video surveillance will be
captured and maintained for 30 days, and if any incidents are
captured on video, that the "video should be copied and retained
according to established state or federal law." The video policy
allows recordings to be viewed only by the "Video Monitoring
Unit."

Video monitors in designated locations in the Courthouses allow
certain officers to view live video feeds, as needed. Videos will
only be preserved in certain limited circumstances and may be
viewed only if requested by authorized personnel. Improper use of
video may result in termination of employment or criminal
prosecution. The Video Policy explicitly prohibits officers from
"viewing an individual's private underclothing, buttock's,
genitalia, or female breasts while that individual is showering,
performing bodily functions or changing clothes, unless he/she
otherwise qualifies for a strip search."

In the Skokie courthouse, video monitors displaying the live video
feeds can be viewed from two control rooms or the office of
Superintendent Eric Mills. The video monitors in the Skokie and
other courthouses display multiple video feeds (as many as 16) on
one monitor at a time. Live video feeds from at least six of the
over 250 cameras in all courthouses capture some part of the toilet
in the cell, including one camera in the Skokie Courthouse, one in
the Leighton Courthouse, and one in the Rolling Meadows
Courthouse.

Ms. Alicea was arrested and placed in a holding cell in the Skokie
Courthouse in early June 2018. That small cell had a bench, toilet,
sink, and a privacy wall that separated the toilet area from the
rest of the cell but did not extend to the ceiling. When Alicea was
in the cell, she saw the camera but did not know it could capture
the toilet area and did not know whether anyone watched her use the
toilet.

Ms. Urrutia was held in a holding cell in the Rolling Meadows
Courthouse in 2018. She too saw cameras when she was in the holding
cell but did not know which direction the cameras were angled or if
anyone saw her use the toilet.

Ms. Ramos was held in a holding cell in the Skokie Courthouse
approximately nine times between October 2017 and February 2018.
She was held in multiple cells, likely on the lower level of the
courthouse. Each of the cells had a toilet, a partition separating
the toilet from the rest of the cell, and a camera. Ramos could not
say whether anyone viewed her while she used the toilet.

Mr. Artinian was placed in at least one holding cell in the
Leighton Criminal Courthouse in April 2017 and twice in the Skokie
Courthouse in June and August 2017. He was aware that there were
cameras in each of those cells but was not sure whether they could
see him in the toilet areas. In June, there were other detainees in
the holding cell with Artinian. Artinian is not sure whether anyone
observed him use the toilet.

Three of the Plaintiffs, Alicea, Urrutia, and Ramos, claim that
they feel embarrassed or humiliated by the potential for someone to
have seen them use the toilet in their respective holding cells.
None of them alleges to have seen a doctor or psychiatrist, nor to
have made any lifestyle changes because of the potential toilet
viewing.

The Plaintiffs filed their class action lawsuit on Aug. 8, 2018.
They allege that the video surveillance of pretrial detainees that
includes toilets violates the Fourth Amendment. Moreover, the
Plaintiffs allege the surveillance is an intrusion on their
seclusion under Illinois state law. By the previously-assigned
judge, the Court initially opened class certification discovery for
a four-month period to close in January 2019 before extending that
deadline to March 2019. Then the Court denied class certification
twice without prejudice. In June 2020, the Defendants moved for
summary judgment.

With respect to the Plaintiffs' Fourth Amendment claim, Judge Kness
opines that although the Plaintiffs' concerns are superficially
attractive, courts "must accord substantial deference to the
professional judgment of prison administrators, who bear a
significant responsibility for defining the legitimate goals of a
corrections system and for determining the most appropriate means
to accomplish them." The Defendants have implemented valid security
measures that redound to the benefit of Sheriff's employees,
corrections officers, and (potentially) detainees. Accordingly,
even if the Plaintiffs enjoyed a right to privacy, the Defendants
had a legitimate reason to use the video surveillance system. Judge
Kness thus grants summary judgment in favor of the Defendants on
the Plaintiffs' Fourth Amendment claim.

To prevail on an intrusion upon seclusion claim under Illinois law,
the Plaintiffs must establish "(1) the Defendant committed an
unauthorized intrusion or prying into the plaintiff's seclusion;
(2) the intrusion would be highly offensive or objectionable to a
reasonable person; (3) the matter intruded on was private; and (4)
the intrusion caused them anguish and suffering."

As he explained, Judge Kness states that prisoners are entitled "to
no reasonable expectation of privacy in their prison cells insuring
them of Fourth Amendment Protection against unreasonable searches
and seizures." Indeed, the "Fourth Amendment proscription against
unreasonable searches does not apply within the confines of the
prison cell." The Plaintiffs offer no binding precedent
establishing a reasonable expectation of privacy in their cells,
particularly given their knowledge that cameras were in their
cells. As a result, Judge Kness grants summary judgment for the
Defendants on the Plaintiffs' intrusion upon seclusion claim.

In sum, Judge Kness concludes that the Plaintiffs fail to create a
genuine issue of material fact, and their claims fail as a matter
of law. The Defendants are, therefore, granted summary judgment on
both counts.

A full-text copy of the Court's Sept. 30, 2022 Opinion & Order is
available at https://tinyurl.com/2p95t67x from Leagle.com.


COOK COUNTY, IL: Court Decertifies Inmates Class in Bennett Suit
----------------------------------------------------------------
Judge John Robert Blakey of the U.S. District Court for the
Northern District of Illinois, Eastern Division, grants the
Defendants' motion and decertifies the Plaintiffs' class in the
lawsuit styled Preston Bennett, Plaintiff v. Thomas Dart, et al.,
Defendants, Case No. 18-cv-04268 (N.D. Ill.).

Bennett brought the lawsuit against Cook County and its sheriff
alleging violations of their rights under the Americans with
Disabilities Act and the Rehabilitation Act. By prior order, the
Court certified Bennett's proposed class under Federal Rule of
Civil Procedure 23(b)(3), and the Defendants have moved for
decertification.

The Plaintiff alleges that the Defendants' failure to provide grab
bars in shower and toilet facilities at Division 10 of the Cook
County Department of Corrections (Division 10), as well as the
Defendants' failure to provide a fixed bench in Division 10's
shower facilities, deprived the Plaintiff and other inmates of
rights guaranteed under Section 202 of the Americans with
Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.

The Court denied the Plaintiff's initial motion for class
certification on the grounds that the proposed class lacked
commonality and that certification would run afoul of the rule
against one-way intervention because, as a prerequisite for
certification, the Court would first need to find that the ADA and
Rehabilitation Acts' Structural Standards controlled. The Plaintiff
then moved to certify a new class defined as: "All inmates assigned
to Division 10 at the Cook County Department of Corrections from
June 27, 2016 to the date of entry of judgment, prescribed a cane,
crutch, or walker by a jail medical provider."

The Court denied the Plaintiff's renewed motion on the grounds that
certification of the new class would still violate the rule against
one-way intervention.

The Plaintiff appealed this denial and the Seventh Circuit reversed
and remanded. Although the Seventh Circuit determined that the
Plaintiff's new class definition now avoided "all person-specific
questions by contending that Division 10, which was constructed in
1992, violates" the Structural Standards, the Seventh Circuit did
not direct this Court to certify the class. On remand, the Court
initially granted the Plaintiff's renewed motion for class
certification.

The Defendants now move for decertification, however, offering
additional evidence concerning the class members.

In their motion to decertify, the Defendants argue that: (1) the
Structural Standards do not control; and (2) the class fails to
satisfy Rule 23(a)'s commonality and typicality requirements and
Rule 23(b)(3)'s predominance requirement. In connection with their
motion, the Defendants offer new evidence to the Court. Notably,
the Defendants provide an updated list of detainees in Division 10
assigned assistive devices, which lays bare each class member's
unique circumstances and entitlement to relief under the ADA and
Rehabilitation Act. In light of this new evidence, the record
warrants reconsideration of the issue of predominance.

To certify a class under Rule 23(b)(3), a court must find that the
questions of law or fact common to class members predominate over
any questions affecting only individual members.

Judge Blakey explains that this predominance analysis "begins, of
course, with the elements of the underlying cause of action,"
citing Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804,
809 (2011). The Plaintiffs allege violations of Section 202 of the
ADA, under which "no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such
entity," and Section 504 of the Rehabilitation Act, under which no
otherwise qualified individual with a disability in the United
States will, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving
Federal financial assistance.

Whether the Structural Standards control is undoubtedly a common
legal question because the class members need not present varying
evidence to generate a common answer, Judge Blakey notes. But the
resolution of this litigation will also turn on two other critical
questions: (1) whether the class members qualify as "disabled"
within the meaning of the ADA and Rehabilitation Act; and (2)
whether the defendants violated the Structural Standards (to the
extent they do control) to the plaintiffs' detriment. As the Court
discusses, neither question can generate common answers.

Given the Plaintiff's class definition, Judge Blakey finds the
question of whether class members have qualifying disabilities
cannot generate common answers. The Plaintiffs' class comprises all
"inmates assigned to Division 10 at the Cook County Department of
Corrections prescribed a cane, crutch, or walker by a jail medical
provider." But the fact that an inmate is prescribed such an
assistive device does not mean such inmate qualifies as disabled
under the ADA and Rehabilitation Act.

In addition to establishing that class members have qualifying
disabilities under the ADA and Rehabilitation Acts and that the
Structural Standards apply to Division 10, the Plaintiffs must
establish that the Defendants violated the Structural Standards to
their detriment. This is yet another highly individualized inquiry,
one incapable of generating common answers, Judge Blakey holds.

As the Defendants' new evidence reflects, the class here consists
of over 350 inmates prescribed different assistive devices,
presumably to address different medical needs. Even if some of
those class members are ultimately disabled within the meaning of
the ADA and Rehabilitation Act, given the varied nature of the
Plaintiffs' conditions, the Court would need to conduct
person-specific evaluations to determine what, if any, injuries
these class members suffered due to violations of the Structural
Standards.

The Court must also decide whether common questions predominate
over the individual questions highlighted. Courts do not assess
predominance by simply counting up the number of common and
individual questions, nor by measuring the amount of time it will
take to litigate common versus individual questions. Instead, the
Court must ask "whether the common, aggregation-enabling, issues in
the case are more prevalent or important than the non-common,
aggregation-defeating, individual issues."

In many respects, Judge Blakey notes, the class here resembles the
class denied certification in McFields v. Sheriff of Cook County.
There, the plaintiffs alleged that the Cook County Jail's failure
"to provide detainees complaining of dental pain with a
face-to-face assessment by a registered nurse or higher-level
practitioner violates the Fourteenth Amendment" because it was
"unreasonable and reflects a deliberate indifference to pain." The
plaintiffs sought to certify a class consisting of all "persons
who, while detained at the Cook County Jail between Nov. 1, 2013
and April 30, 2018, submitted a written 'Health Service Request
Form' complaining of dental pain and did not receive a face-to-face
assessment by a registered nurse or higher-level practitioner after
submitting the request" under Rule 23(b)(3).

Like this case, the McFields plaintiffs' class definition presented
a common question: whether the Cook County Jail failed to provide
face-to-face assessments. But that single common question did not
predominate over individual questions because whether the "failure
to provide a face-to-face assessment was objectively unreasonable,"
and thus unconstitutional, necessarily depended upon facts and
circumstances specific to each class member, Judge Blakey opines.
As a result, the Court denied certification, in part because "the
proffered common question" did not appreciably advance resolution
of the Plaintiffs' claims and individual issues--the facts and
circumstances of each individual detainee's claim--predominated.

So too here, Judge Blakey points out. In this case, the only common
question is whether the Structural Standards apply. That question,
however, does not predominate over the individual, fact-specific
questions of whether class members have qualifying disabilities and
whether the Defendants violated the Structural Standards, if
applicable, in a way that injured each class member. Indeed,
determining that the Structural Standards do (or do not) apply will
be of no moment to those class members, who were never entitled to
the protections of the ADA and Rehabilitation Act in the first
place.

The identification of class members, who fall within the scope of
those Acts, can take place only through a series of individualized
inquiries at trial, not a single, class-wide determination. This
alone requires decertification, Judge Blakey points out.

And even after making individual determinations as to each class
member's entitlement to protection under the Acts, the Court would
be required to undergo another round of individualized,
fact-specific assessments as to whether they were injured by the
Defendants' violations of the Structural Standards, to the extent
they apply. In short, the narrow common question of whether the
Structural Standards apply has limited value; its resolution does
not significantly advance class-wide resolution of this case
because the Court must also determine at the outset each individual
class member's entitlement to protection under the Acts, as well as
whether any violation of the Structural Standards harmed each class
member based upon his individual circumstances. For these reasons,
Judge Blakey finds individual questions clearly predominate over
the common question, requiring decertification under Rule
23(b)(3).

For the reasons explained, and in light of the new evidence
presented by the Defendants, the Court grants the Defendants'
motion for decertification. The parties are directed to meet and
confer concerning next steps to advance the case. The parties were
to file a joint status report by Oct. 6, 2022.

A full-text copy of the Court's Memorandum Opinion and Order dated
Sept. 22, 2022, is available at https://tinyurl.com/ss859mvf from
Leagle.com.


CYBEROPTICS CORP: M&A Probes Possible Securities Class Action
-------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating:

CyberOptics Corp. (CYBE), relating to its proposed acquisition by
Nordson Corp. Under the terms of the agreement, CYBE shareholders
are expected to receive $54.00 in cash per share they own. Click
here for more information:
https://www.monteverdelaw.com/case/cyberoptics-corp. It is free and
there is no cost or obligation to you.


              About Monteverde & Associates PC

We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers in 2013 and 2017-2019 as a Rising Star
and in 2022 as a Super Lawyer in Securities Litigation. He has also
been selected by Martindale-Hubbell as a 2017-2021 Top Rated
Lawyer. Our firm's recent successes include changing the law in a
significant victory that lowered the standard of liability under
Section 14(e) of the Exchange Act in the Ninth Circuit. Thereafter,
our firm successfully preserved this victory by obtaining dismissal
of a writ of certiorari as improvidently granted at the United
States Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407
(2019). Also, we have recovered or secured a dozen cash common
funds for shareholders in mergers & acquisitions class action
cases.

If you own common stock in any of the above listed companies and
wish to obtain additional information and protect your investments
free of charge, please visit our website or contact Juan E.
Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com
or by telephone at (212) 971-1341. [GN]

DR. DAVID BROADBENT: Judge Overturns Sexual Abuse Class Action
--------------------------------------------------------------
Genelle Pugmire, writing for Daily Herald, reports that Fourth
District Court Judge Robert Lunnen overturned a class action
lawsuit against Dr. David Broadbent, a Provo obstetrics and
gynecology specialist, accused of sexual abuse and sexual battery
of female patients.

According to Adam Sorenson of Gross & Rooney, attorney for the
plaintiffs, an appeal will be filed with the Utah Supreme Court.

If the court upholds Lunnen's decision, Sorenson said he will then
seek a malpractice option. If the court sides with the plaintiffs,
then the abuse case will be refiled.

"The process takes about a year from filing notice of appeal to
getting a decision," Sorenson said.

Since January, nearly 100 women have made accusations against
Broadbent of sexual battery, sexual assault and intentional
infliction of emotional distress.

Intermountain Healthcare (Utah Valley Hospital) and MountainStar
Healthcare (Timpanogos Regional Hospital) were also involved in the
lawsuit.

All three defendants gave slightly varying arguments that the case
should be dismissed, because they consider the charges to be
medical malpractice claims and pre-litigation procedures were not
done correctly.

On Oct. 4, Judge Lunnen concurred with the argument, saying charges
against Broadbent should be for malpractice.

David Jordan, representing Intermountain Healthcare, said the main
issue was whether the procedures performed by Broadbent constituted
health care. He said they did and quoted the Utah Healthcare
Malpractice Act's definition of health care as "any act or
treatment performed or furnished, or which should have been
performed or furnished, by any health care provider for, to, or on
behalf of a patient during the patient's medical care, treatment,
or confinement."

Karra Porter, representing Broadbent, discussed the delicate nature
of a gynecologist, saying that patients recognize there would be
contact of sensitive parts of the body as part of the treatment.

Lawyers for the plaintiffs argued that this wasn't a matter of
health care, but sexual abuse and throughout the summer continued
to question why the accusations of sexual abuse were being labeled
as health care. It was also argued the actions of Broadbent were
not on behalf of his patients.

Some of Broadbent's actions were so heinous, according to Sorenson,
that they had to tone down the sum of the case.

While charges were first filed Feb. 15, one of the victims first
told her story on a podcast in December 2021. According to previous
reporting, awareness of the podcast and lawsuit have influenced
numerous other women to come forward to share their alleged
interactions with Broadbent.

All of the women have claimed their experiences happened at
Broadbent's office in Provo or at the two involved hospitals.
Broadbent no longer has privileges as a physician in either
hospital.

Sorenson, on behalf of the claimants, had filed for a jury trial,
noting in court documents the difference between malpractice and
sex abuse.

In his filing, Sorenson added, "For forty years, Broadbent sexually
abused women and concealed that abuse under the guise of medical
care. Those acts do not fall under the definition of ‘health
care."

If the plaintiffs continue with a claim of malpractice, only those
who have been seen by Broadbent in the past four years may seek
damages due to the statute of limitations.

In documents filed earlier this year, attorneys David and Scott
Epperson of Epperson & Owens law offices, representing Broadbent,
noted that, "As a mandatory condition-precedent to commencing
litigation, Utah law requires those seeking to bring suit against a
healthcare provider to file a notice of intent and participate in a
non-binding pre-litigation hearing before the Division of
Occupational and Professional Licensing. Because Plaintiffs have
not completed these steps, they are precluded from filling suit."

The documents state, "the claims asserted in Plaintiffs against
Defendant Dr. Broadbent constitute ‘a malpractice action against
a healthcare provider' as set forth in the Utah Healthcare
Malpractice Act 78B-3-403(17) which states: ‘Malpractice action
against a health care provider' means any action against a health
care provider, whether in contract, tort, breach of warranty,
wrongful death, or otherwise, based upon alleged personal injuries
relating to or arising out of health care rendered or which should
have been rendered by the health care provider." [GN]

FREEDOM OF EXPRESSION: Exotic Dancers Class Certified in Washington
-------------------------------------------------------------------
In the case, Malaika Washington, et al., Plaintiffs v. Freedom of
Expression LLC, et al., Defendants, Case No. CV-21-01318-PHX-MTL
(D. Ariz.), Judge Michael T. Liburdi of the U.S. District Court for
the District of Arizona grants in part the Plaintiff's Motion for
Conditional Certification.

Freedom of Expression, LLC d/b/a Bones Cabaret, Wisnowski Inc.
d/b/a Skin Cabaret, Skin Cabaret LLC, and Todd Borowsky
(collectively, "Defendants") own and operate the adult
entertainment clubs of Bones Cabaret and Skin Cabaret in
Scottsdale, Arizona. Washington brings suit under the Fair Labor
Standards Act ("FLSA"), individually and on behalf of all other
similarly situated, against Defendants seeking to recover unpaid
wages. She contends that she formerly worked for Defendants as an
exotic dancer at Bones and Skin, and that she and putative
collective action members were not paid the minimum wages owed to
them in violation of 29 U.S.C. Section 207(a).

The matter is before the Court on the Plaintiff's Motion for
Conditional Certification. She requests that the Court
conditionally certifies the following FLSA collective 29 U.S.C.
Section 216(b): "All current and former exotic dancers who worked
for Defendants at any time starting three years before this lawsuit
was filed up to the present."

The Plaintiff's Motion also requests approval of a proposed notice
and consent procedure a well as an order from the Court directing
the Defendants to provide the names, known addresses, phone
numbers, dates of birth, email addresses, driver's license numbers,
social security numbers, and dates of employment of the putative
collective members.

The Defendants maintain that the putative collective members are
not similarly situated to Plaintiff by virtue of a mandatory
arbitration agreement. They also object to some of the Plaintiff's
proposed notice procedures and disclosure requests.

The Plaintiff's proposed collective of all current and former
exotic dancers who worked for the Defendants at any time since July
29, 2021 satisfies the requirement that collective members be
similarly situated with one another. According to the Plaintiff,
she and the putative collective members "are similarly if not
identically, situated with respect to their job requirements and
compensation scheme."

Specifically, the Plaintiff alleges that she shared the same job
title and duties with the putative collective, that the Defendants
misclassified Plaintiff and the putative collective as independent
contractors, and that the Defendants' pay practices were the same
as to all putative collective members.

Judge Liburdi holds that these allegations provide material factual
and legal similarity among the putative collective. Namely, whether
the Defendants' polices or practices resulted in the Plaintiff and
the putative collective being misclassified as independent
contractors and thus underpaid.

The Defendants object to finding the proposed collective similarly
situated on the grounds that many of the collective members have
purportedly entered into a premise use license agreement containing
a mandatory arbitration clause. They maintain that this would
render many collective members ineligible for the collective
action. Their concerns highlight that "neither the remedial purpose
of the FLSA, nor the interests of judicial economy, would be
advanced if the Court were to overlook facts which generally
suggest that a collective action is improper."

But given the evidence at this stage, Judge Liburdi cannot conclude
that the mandatory arbitration agreements are enforceable let alone
that they predominate the putative collective members. In fact, the
Defendants concede that they cannot find any documentation or
paperwork demonstrating that the Plaintiff signed the relevant
premise use license agreement. There is nothing to suggest that
other putative collective members are not in the same position as
the Plaintiff with respect to the existence of their premise use
license agreements. Nonetheless, Judge Liburdi will only certify a
conditional class of those putative class members who are found to
not be bound by an enforceable arbitration clause.

The Plaintiff next moves for the Court to approve of a
comprehensive notice and consent plan. In sum, she requests that
the Court: [i] "approves of the Notice of Rights and Consent form";
[ii] approves "that the notice and consent forms be mailed by first
class mail, text message and by electronic mail to all current and
former dancers employed by Defendants at any time from three years
prior to the granting of this Motion to present"; [iii] allows the
Plaintiff's counsel to "hire a third-party class action
administration company to oversee the mailing of the notice and
forms"; [iv] allows her "to send text message notifications to the
putative class with a link to a website containing the notice
form"; [v] allows the putative collective the option "to exercise
their consent forms online through an electronic signature
service"; [vi] permits notice to be twice sent to the putative
class members -- "first within 14 days of receiving the class list
and a second time 30 days after, but only to class members who have
not joined"; and [vii] orders the Defendants to produce, in a
computer-readable format, the "names, known addresses, phone
numbers, dates of birth, email addresses, driver's license numbers,
social security numbers, and dates of employment for" all putative
collective members.

Judge Liburdi explains that in exercising the discretionary
authority to oversee the notice-giving process, courts must be
scrupulous to respect judicial neutrality. To that end, trial
courts must take care to avoid even the appearance of judicial
endorsement of the merits of the action." Courts must carefully
avoid authorizing a notice procedure that amounts to "the
solicitation of claims." In the case, because none of the language
threatens the appearance of a judicial endorsement of the merits,
Judge Liburdi approves of the Plaintiff's proposed collective
action Notice and the Consent to Join form  as fair and accurate.

Notice by regular mail is a standard form of notice for putative
FLSA collective action members. Notice by email is also warranted.
Email has become a reliable method of business communication and is
acceptable. Reminder notice is likewise a standard notice procedure
in collective action cases, given that the FLSA requires putative
collective members to opt-in. Judge Liburdi will permit the
Plaintiff to send a reminder notice to putative collective members
who do not respond to the initial notice.

Judge Liburdi also agrees with the Plaintiff in finding that
notification via text message is warranted given the transient
nature of many of the putative class members. As the Plaintiff
points outs, the Defendants claim not to have email addresses for
all the putative collective members, thus text notification is
neither duplicative nor overly intrusive. He will also allow the
putative collective members to exercise their consent forms online
via an electronic signature service. In his discretion, Jude
Liburdi finds that the hiring of a third-party class action
administration company to oversee the notice and consent mailing is
not unreasonable. Thus, the Plaintiff will be permitted to do so.

While he will order the Defendants to disclose some of the
Plaintiff's requested identifying information, Judge Liburdi says
much of the Plaintiff's request is overly broad and unnecessarily
seeks sensitive information. He agrees with the Defendants that
there is no legitimate reason for the Plaintiff to obtain the
social security numbers, dates of birth, or driver's license
numbers for any of the putative collective members.

Accordingly, Judge Liburdi grants the Plaintiff's Motion for
Conditional Certification to the extent that the following FLSA
collective action is certified: All current and former exotic
dancers who worked for Freedom of Expression, LLC d/b/a Bones
Cabaret, Wisnowski Inc. d/b/a Skin Cabaret, Skin Cabaret LLC, and
Todd Borowsky on or after July 29, 2018. He grants in part and
denies in part the Plaintiff's Motion, to the extent it seeks
approval of the proposed notice and consent procedures.

The Defendants shall, within 14 days of th3 Order, provide to the
Plaintiff's counsel, in Excel format (.xlxs), the names, known
addresses, phone numbers, email addresses, and dates of employment
of all putative collective members so that the Plaintiff may notify
them of the collective action.

The Plaintiff's counsel may, within 14 days of receiving the
Defendants' disclosure, send, by U.S. Mail, email message, and text
message a copy of the Court-approved Notice and Consent Form to all
the putative collective members.

The putative collective members will have 90 days from the date of
the Order to return their signed Consent forms for filing with the
Court.

The Plaintiff's counsel may, within 30 days of receiving the
Defendants' disclosure, send a follow-up email, postcard, or text
message to those putative collective members who did not respond to
the initial notice.

All other motions remain pending.

A full-text copy of the Court's Sept. 30, 2022 Order is available
at https://tinyurl.com/mr2sh998 from Leagle.com.


GOOGLE LLC: Among Large Companies Facing VPPA Class Action Suit
---------------------------------------------------------------
Mark McCreary, Esq., and Carly Nixon, Esq., of Fox Rothschild LLP,
in an article for JDSupra, report that a recent string of lawsuits
filed against large companies including a major movie studio, a
professional sports league, CNN, HuffingtonPost.com, ESPN and
Buzzfeed have returned the federal Video Privacy Protection Act
(VPPA) -- enacted in 1988 to protect video tape rental histories --
to the spotlight.

Plaintiffs in these new actions allege that these companies
violated the law when their websites tracked their online video
viewing habits and reported the data to companies such as Meta or
Google for analytical purposes without their consent.

This emerging litigation trend should prompt companies that use
Meta's tracking Pixel, Google Analytics or other technologies that
monitor website traffic, to review their policies and procedures.

Background on the Video Privacy Protection Act
In 1987, amid U.S. Supreme Court nominee Judge Robert H. Bork's
confirmation hearings, a journalist published Bork's video tape
rental history. In response, Congress swiftly passed the Video
Privacy Protection Act (VPPA). Enacted in 1988, the VPPA prohibits
the knowing disclosure by a video tape service provider of
information identifying a person having requested or obtained
specific video materials or services.

The law did not generate much attention until 2008-2011, when a
series of lawsuits were filed against online video streaming
services such as Hulu and Netflix alleging breaches of VPPA. These
streaming services lobbied Congress for an amendment to VPPA to
provide an exception so that they could obtain consent that would
enable the user to opt in to share their video content viewing on
third-party social networks.

In response to the lobbying, Congress amended the VPPA in 2013 to
allow disclosure to third parties if the consumer elects to give
"informed, written consent (including through an electronic means
using the internet)" for such disclosure and "the user has to be
given the opportunity, in a clear and conspicuous manner, to elect
to withdraw on a case-by-case basis from ongoing disclosures."

What Are the Details of the New Complaints?
This recent string of lawsuits targets major companies with
websites that contain videos to be viewed by visitors, as well as
Google Analytics and/or Meta Pixel code (Meta is commonly known as
Facebook). The plaintiffs' viewing of those videos on the websites
was reported to Google and/or Meta for analytical purposes, which
can be very useful for determining videos' effectiveness.

The plaintiffs allege that their personal information was
improperly shared with third parties, namely Google and Meta,
without their consent, when their video watching activity was
reported. The complaints also allege a violation of state wiretap
laws through the interception of communications without appropriate
disclosure to, and approval by, the consumer.

In the case of the professional sports league, the allegations
include sending user data to the Google-affiliated video platform
Anvato. The league's app forwards Android users' "advertising ID"
associated with their device, their geolocation down to the "street
level" and an ID associated with the videos they watch.

The allegations against the movie studio, BuzzFeed and ESPN include
that they targeted advertising and other content on their websites,
gathered personally identifiable information, including the video
viewing activities of subscribers who watched videos on their
websites, and shared that data with Meta without their consent via
a tracking pixel. This pixel reveals to Meta what videos individual
account holders watched on those websites.

You Aren't ESPN or BuzzFeed … Why Should You Care?
Almost any company with an online platform uses advertising and
marketing pixels, cookies and similar tools. If you think your
company uses Meta's tracking Pixel or Google Analytics, you may be
unknowingly violating the VPPA. Fines amount to $2,500 for every
individual.

The available options are not desirable for companies that have
videos, chat features or cookies that track the browsing activity
of users (to name some affected technologies), or use Meta Pixel
code or Google Analytics. To be clear, case law remains undecided
and this wave of lawsuits is just the beginning. But it seems safe
to say that the plaintiffs have a novel and possibly compelling
argument. It is also clear that if the plaintiffs are correct, a
passive agreement buried in online terms of use is insufficient to
satisfy the standard of "informed, written consent (including
through an electronic means using the internet)" for such
disclosure and that "the user has to be given the opportunity, in a
clear and conspicuous manner, to elect to withdraw on a
case-by-case basis from ongoing disclosures."

This should not be entirely new territory for marketing departments
and web designers, which have grown increasingly accustomed to
consulting with privacy-focused attorneys when it comes to data
collection, usage and disclosure in privacy policies. The same goes
for complying with American with Disabilities Act (ADA)
requirements for website accessibility, which has been a hotbed of
plaintiff class action cases for years.

Add another area to the list. It is quickly becoming clear that
companies face legal and financial exposure if their compliance
with the VPPA and state wiretap laws is not properly considered and
addressed. [GN]

HARVEY WEINSTEIN: Oral Arguments in Sex Crimes Suit Set Oct. 24
---------------------------------------------------------------
nytimes.com reports that Harvey Weinstein's second sex crimes
trial, which begins in Los Angeles, was once seen as largely
symbolic. After all, the former movie mogul, who is 70 and in poor
health, still has 21 years to serve in prison following his 2020
conviction in New York for rape and criminal sexual assault.

But a late-summer surprise from New York's highest court - one that
gave Mr. Weinstein a glimmer of hope of walking free - has
heightened the West Coast stakes. Should Mr. Weinstein win his
appeal, the Los Angeles case would determine his fate.

"It is disturbing and shocking that Harvey was allowed to continue
his New York appeal, and so we - survivors, supporters - are paying
very, very close attention to the Los Angeles trial," said Caitlin
Dulany, an actress who has accused Mr. Weinstein of sexually
harassing and assaulting her in the mid-1990s. Ms. Dulany, who is
not involved in the Los Angeles trial, was a plaintiff in a
class-action civil suit against Mr. Weinstein in 2018 that a
federal judge ultimately rejected.

Supporters of the #MeToo movement are also looking to the trial as
a signal of the movement's vitality in the entertainment industry,
where there have been setbacks, like the implosion of Time's Up,
the anti-harassment organization. It was founded by powerful
Hollywood women in 2017 to make sure Mr. Weinstein's behavior would
never be repeated.

If Mr. Weinstein is acquitted by Hollywood's hometown legal system,
it could have a chilling effect, some #MeToo supporters worry. Los
Angeles courts already have a reputation for being soft on show
business figures.

"There's obviously a lot at stake for the women who are testifying,
but there is also a lot at stake for all of us," Ms. Dulany said.
"If it goes the wrong way, it will be a step backwards. I think it
will make it harder for women to come forward in the future."

Others caution against using these trials as a measuring stick of
#MeToo's endurance or its waning influence. The court cases involve
relatively few women, whose claims must meet the strict standards
that criminal law requires for conviction.

"We've never measured the success or the power of #MeToo by
high-profile individuals being held accountable," Fatima Goss
Graves, the president and chief executive of the National Women's
Law Center, said.

Mr. Weinstein, who has been accused by more than 90 women of sexual
misconduct, faces 11 charges in his Los Angeles trial, which is
expected to last six to eight weeks - long enough to overlap with
the Nov. 18 theatrical release of "She Said," a $30 million drama
about the Pulitzer Prize-winning New York Times investigation that
exposed Mr. Weinstein's behavior. The charges include four counts
each of rape and forcible oral copulation involving five women
between 2004 and 2013 in Los Angeles and Beverly Hills. They
represent a more expansive set of accusations than in the New York
trial.

Mr. Weinstein also faces one count of sexual penetration with a
foreign object by force and two counts of sexual battery by
restraint, according to the March 2021 indictment, which identified
the accusers as Jane Does 1 through 5. They will be identified as
such throughout the trial; even if the public is able to determine
their identities, the law forbids that they be named during the
proceeding.

Only one of the women has been publicly identified: Lauren Young, a
model and actress who was allowed to testify at Mr. Weinstein's New
York trial as a pattern-of-abuse witness. She testified that Mr.
Weinstein trapped her in a hotel bathroom in 2013 and masturbated
while gripping and pinching her breast before she fled.

A second Los Angeles accuser is an Italian model and actress who
told The Los Angeles Times in 2017 that Mr. Weinstein "grabbed me
by the hair and forced me to do something I did not want to do."
According to a criminal complaint, Mr. Weinstein forced oral sex on
her, then intercourse, at a Beverly Hills hotel in 2013.

If convicted in California, Mr. Weinstein faces a life sentence,
regardless of the outcome of his New York appeal.

George Gascon, the progressive district attorney in Los Angeles
County who has been blamed by critics for rising crime rates,
declined to comment on the Weinstein case, as did Marlene Martinez
and Paul Thompson, the deputy district attorneys assigned to the
trial.

"The notion of getting justice obviously means a great deal to a
great many people," said Robert Weisberg, a Stanford University law
professor and co-director of the Stanford Criminal Justice Center.
"Losing in California would be bad for the victims, bad for the
#MeToo movement and bad for Gascon."

As in New York, Mr. Weinstein has denied any wrongdoing, saying
that he only engaged in consensual sex. Mark Werksman, Mr.
Weinstein's Los Angeles lawyer, said by phone that Mr. Weinstein
was the innocent victim of a "massive pile-on," and that the
charges against him were "weak and unbelievable and would never
have been brought if he were not at the epicenter of the #MeToo
Movement." Mr. Werksman declined to say whether his client would
testify or who might be called to testify on his behalf.

In hearings, Mr. Werksman has indicated that he will attack the
credibility of his client's accusers. In December 2021, for
instance, he said in court that one accuser gave inconsistent
statements to the police and that another faked an orgasm during
the alleged assault. At a hearing, Mr. Weinstein's lawyers pointed
to a photo that one accuser posted online of herself with Al Pacino
and the caption "beautiful evening" hours after the incident in
question, and argued that couldn't possibly be victim behavior.

Jury selection is expected to take two weeks. Opening arguments
will likely begin on Oct. 24. Cameras will not be allowed inside
the courtroom.

The trial is taking place at the Clara Shortridge Foltz Criminal
Justice Center in downtown Los Angeles. Since being extradited from
New York in July 2021, Mr. Weinstein has been held at the nearby
Twin Towers jail. He has arrived at hearings in a wheelchair while
clad in a brown prison jumpsuit. He usually carries a book, echoing
his practice from the New York proceedings; recently it was the
novel "All the Light We Cannot See."

Lisa B. Lench, the Los Angeles County Superior Court judge
presiding over the case, has sometimes ruled in favor of Mr.
Weinstein during pretrial hearings. For instance, she dismissed one
count of sexual battery by restraint from the original indictment,
agreeing with a defense motion that the statute of limitations had
expired. (It was subsequently reinstated after prosecutors provided
additional testimony to a grand jury.)

Judge Lench granted a defense request to allow Mr. Weinstein to
wear civilian clothes while in court and said she would see what
she could do when asked if Mr. Weinstein could be fitted with false
teeth. "We don't want the jurors to conclude that he's in custody
and he's a mess," Mr. Werksman said in court.

Judge Lench also ruled that prosecutors could call only five female
witnesses to testify about uncharged "prior bad acts" by Mr.
Weinstein; prosecutors had asked to call another 11, including the
actress Daryl Hannah and the activist and former actress Rose
McGowan. Later, Judge Lench further limited these contextual
witnesses to four, citing accounts that were too similar.

Those four women will testify under a law known in California as
1108, which allows prosecutors to introduce evidence of a
defendant's uncharged misconduct, in an effort to show that Mr.
Weinstein had a standard mode of operating in such situations. Only
one of the women has been publicly identified. She is Ambra
Battilana Gutierrez, an Italian model who told New York police in
2015 that Mr. Weinstein had groped her breasts and tried to force
his hand up her skirt during a work meeting at his office.

"We fear that the government is basically trying to blow Mr.
Weinstein away with a fire hose of allegations which are false and
uncredible," Mr. Werksman said. "The challenge for the defense is
to get the jury to look at each and every allegation against him
and weigh the evidence of each and every accuser."

Manhattan prosecutors used the law's New York equivalent in Mr.
Weinstein's 2020 trial, calling on three additional witnesses to
help the jury understand the movie producer's pattern of behavior
with his victims.

In other pretrial matters in Los Angeles, Judge Lench has sided
with prosecutors. In August, for instance, she rejected a defense
request to delay the trial until after "She Said" debuts in
theaters. Mr. Werksman had argued that ads for the film could
"dramatically prejudice" the jury. Universal Pictures is expected
to spend an at least $25 million to promote the film's domestic
release.

"We'll just have to deal with it," Judge Lench said from the
bench.

One important trial-related question is what jurors will be told,
if anything, about Mr. Weinstein's New York conviction. Los Angeles
prosecutors had won the right to include information about part of
it. But when the New York Court of Appeals accepted Mr. Weinstein's
case in late August, the matter became complicated: If the Los
Angeles jury finds Mr. Weinstein guilty and bases its decision in
part on the information about the New York verdict - and that
verdict is subsequently reversed - it could become fodder for an
appeal in California.

"We have not decided whether we will present evidence of it," Greg
Risling, a spokesman for the Los Angeles County district attorney,
said in an email.

The Court of Appeals decision in New York surprised some in the
legal community. The lower-level appeals court had affirmed his
conviction in June, finding that Manhattan prosecutors' use of the
three "prior bad acts" witnesses was appropriate, and that it
helped prosecutors convince the jury that the movie producer
engaged in a pattern of conduct in which he would lure women with
the promise of career advancement and then assault them.

The lower appeals court in New York did pay special attention to an
argument from Mr. Weinstein's lawyers, who said it was unfair that
a trial judge had ruled that, if the movie producer were to
testify, prosecutors could ask him questions about 28 incidents of
past behavior, including acts of violence against people who worked
for him. The lawyers said that ruling had prevented Mr. Weinstein
from testifying in his own defense. Though it ultimately rejected
the argument, the appeals court acknowledged that the number of
incidents permitted could appear "troublingly" large.

That issue is among those that could be taken up by the New York
Court of Appeals, which will likely hear oral arguments on the case
late in the spring of 2023, and make a final decision later in the
year. By that time, Mr. Weinstein is likely to be back in New York
in prison. If his New York conviction is upheld by the court, he
will serve out that sentence regardless of what happens in the Los
Angeles trial.

But in the event that his New York conviction is overturned, his
future will be decided by a jury that lawyers will begin the
process of choosing.

Lauren Herstik contributed reporting. [GN]

HERNAN AND BROTHER: Faces Morocho Wage-and-Hour Suit in E.D.N.Y.
----------------------------------------------------------------
WILMER MOROCHO, individually and on behalf of all others similarly
situated, Plaintiff v. HERNAN AND BROTHER CORP., and HERNAN
CHINCHILIMA, as an individual, Defendants, Case No. 1:22-cv-05891
(E.D.N.Y., Oct. 3, 2022) seeks to recover damages from Defendants'
egregious violations of the Fair Labor Standards Act and the New
York Labor Law due to alleged unlawful labor policies and
practices.

The Plaintiff asserts that he worked approximately 63 or more hours
per week during the relevant statutory period but Defendants did
not pay him time and a half for hours worked over 40, which is a
blatant violation of the overtime provisions contained in the FLSA
and NYLL. He also alleges that Defendants willfully failed to post
notices of the minimum wage and overtime wage requirements in a
conspicuous place at the location of their employment.

Mr. Morocho was employed by Defendants from May 2013 until June
2020 with duties include installing ceramic and performing other
miscellaneous work.

Hernan and Brother Corp. is a corporation organized under the laws
of New York.[BN]

The Plaintiff is represented by:

          Roman Avshalumov, Esq.
          HELEN F. DALTON & ASSOCIATES, PC
          Kew Gardens Road, Suite 601
          Kew Gardens, NY 11415
          Telephone: (718) 263-9591
          Facsimile: (718) 263-9598

HILL INTERNATIONAL: M&A Probes Possible Securities Class Action
---------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating:

Hill International, Inc. (HIL), relating to its proposed merger
with Global Infrastructure Solutions Inc. Under the terms of the
tender offer, HIL shareholders are expected to receive $2.85 in
cash per share they own. Click here for more information:
http://monteverdelaw.com/case/hill-international-inc.It is free
and there is no cost or obligation to you.

               About Monteverde & Associates PC

We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers in 2013 and 2017-2019 as a Rising Star
and in 2022 as a Super Lawyer in Securities Litigation. He has also
been selected by Martindale-Hubbell as a 2017-2021 Top Rated
Lawyer. Our firm's recent successes include changing the law in a
significant victory that lowered the standard of liability under
Section 14(e) of the Exchange Act in the Ninth Circuit. Thereafter,
our firm successfully preserved this victory by obtaining dismissal
of a writ of certiorari as improvidently granted at the United
States Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407
(2019). Also, we have recovered or secured a dozen cash common
funds for shareholders in mergers & acquisitions class action
cases.

If you own common stock in any of the above listed companies and
wish to obtain additional information and protect your investments
free of charge, please visit our website or contact Juan E.
Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com
or by telephone at (212) 971-1341. [GN]

HOME BUYERS: Order Compelling Arbitration in Vitiello Suit Affirmed
-------------------------------------------------------------------
In the lawsuit styled Lisa Vitiello, Individually and on Behalf of
Others Similarly Situated, Appellant v. Home Buyers Resale Warranty
Corp., et al., Respondents, Case No. 533464 (N.Y. App. Div.), the
Appellate Division of the Supreme Court of New York, Third
Department, affirms the order granting, among other things, the
Defendants' motion to compel arbitration.

The Plaintiff-Appellant appeals from an order of the Supreme Court
(Dianne N. Freestone, J.), entered May 7, 2021, in Saratoga County,
which, among other things, granted the Defendants' motion to stay
the action, compel arbitration and dismiss the class action claim.

In February 2017, the Plaintiff and LNAA Construction, LLC, entered
into a contract for the construction and sale of a new home located
in the City of Saratoga Springs, Saratoga County. The contract
incorporated a limited warranty purchased by LNAA that disclaimed
any express or implied warranties in favor of a warranty
administered by Defendant Home Buyers Warranty Corp. (HBWC).

In May 2017, both the Plaintiff and LNAA executed an application to
enroll the Property in HBWC's warranty program. As relevant here,
section IV of the limited warranty contained an arbitration
agreement, which provided that "any and all claims, disputes and
controversies by or between" the Plaintiff, LNAA and HBWC arising
from or related to the warranty will be settled by binding
arbitration. The arbitration agreement also expressly stated that
it "involves and concerns interstate commerce" and will be governed
by the Federal Arbitration Act (9 USC Section 1, et seq.), to the
exclusion of any different or inconsistent state or local law,
ordinance or judicial rule. Pursuant to the terms of the
arbitration agreement, the costs of arbitration were to be
allocated amongst the parties at the discretion of the arbitrator.

Upon encountering various defects in the Property, the Plaintiff
commenced an arbitration proceeding against LNAA seeking to have
the repairs covered under the warranty. The arbitrator determined
that several of the defects were not covered under the warranty
and, at the conclusion of the proceeding, directed the Plaintiff to
pay $625 of the total costs of arbitration. Dissatisfied with the
arbitrator's determination, the Plaintiff commenced an action in
Supreme Court against LNAA for, among other things, breach of
contract and warranty.

Following joinder of issue, the Plaintiff moved, in relevant part,
for summary judgment seeking a declaration that the warranty was
void and unenforceable. The Supreme Court denied the Plaintiff's
motion, determining that there were issues of material fact
precluding summary judgment; however, it also found that the
Plaintiff had a viable claim and that "the provision of the
warranty which required the Plaintiff to submit to binding
arbitration and to pay the fee associated therewith was void."

Approximately two years later, the Plaintiff commenced this
separate action on behalf of herself and others similarly situated
against the Defendants seeking the return of the fees charged in
connection with arbitration and for payments made due to the
Defendants' alleged deceptive business practices in violation of
General Business Law Sections 349 and 777-b.

Specifically, the Plaintiff alleged that the Defendants had
improperly compelled consumers, who purchased its warranties, to
participate in arbitration for disputes that arose under the
warranty, improperly charged fees to participate in such
arbitration and that the Defendants marketed a defective warranty
that failed to meet the standards for a minimum housing merchant
implied warranty.

After an unsuccessful motion to remove the matter to federal court,
the Defendants moved to compel arbitration, stay the action and
dismiss the class action claim or, alternatively, to dismiss the
action entirely. The Supreme Court granted the Defendants' motion
to the extent that it compelled arbitration, dismissed the class
action claim and stayed the action.

Relevant to this appeal, the Supreme Court determined that the FAA
preempted state law since the Defendants were engaged in interstate
commerce, that the arbitration agreement contained in the warranty
compelled arbitration and that the Plaintiff had waived her right
to seek class action status. The Plaintiff appeals.

The Court of Appeals affirms.

Judge Eddie McShan, writing for the Panel, notes that it is well
established that the FAA applies to any contracts involving
interstate commerce (Matter of Ayco Co. Walton, 3 A.D.3d 635, 636
3d Dept 2004, appeal dismissed and denied 2 N.Y.3d 786 2004). The
FAA evinces Congress's intent to establish an emphatic national
policy favoring arbitration which is binding on all courts, state
and federal, such that any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration. In
this respect, the FAA provides that binding arbitration agreements
concerning those transactions involving commerce will be valid,
irrevocable, and enforceable, save upon such grounds as exist at
law or in equity for the revocation of any contract.

The Plaintiff maintains that the FAA is inapplicable to the dispute
with the Defendants because the underlying contract with LNAA is
entirely local in nature. However, while the construction contract
between the Plaintiff and LNAA may have encompassed activity that
took place exclusively in New York, the dispute between the
Plaintiff and the Defendants concerns the terms of the warranty and
its administration. Accordingly, as HBWC is a party to the warranty
as its administrator, any determination as to the applicability of
the FAA must necessarily consider HBWC's economic activity and
whether it "affects interstate commerce."

To this end, Judge McShan says, the record establishes that HBWC
conducts business from its headquarters in Colorado and has a
nationwide presence as evidenced by the fact that it offers
warranties to builders and homeowners in 48 different states. In
the Panel's view, it is clear that HBWC's business practices
pertaining to its warranties, when viewed in the aggregate, have a
substantial effect on interstate commerce, rendering the FAA
applicable.

The Court of Appeals also rejects the Plaintiff's alternate
contention that General Business Law Section 777-b(4)(h) requires
that this Court strikes the arbitration agreement on public policy
grounds. Judge McShan explains that it is well established that
when state law prohibits outright the arbitration of a particular
type of claim, the analysis is straightforward: the conflicting
rule is displaced by the FAA. Thus, the FAA displaces the
restriction on arbitration contained in General Business Law
Section 777-b(4)(h) and requires that the dispute between the
Plaintiff and the Defendants be arbitrated pursuant to the terms of
the arbitration agreement.

To the extent that the Plaintiff raises public policy contentions
concerning the minimum protections afforded by the warranty, owing
to the broad language of the arbitration agreement encompassing all
disputes arising from the warranty, the Court of Appeals finds that
the Plaintiff acquiesced to the arbitrability of those issues.
Finally, the Court of Appeals rejects the Plaintiff's contention
that, in light of the prior arbitration decision in her dispute
with LNAA, any arbitrator that is ultimately selected to hear this
dispute would be incapable of being impartial and would be
incentivized to disregard state law. Pursuant to the terms of the
arbitration agreement, the arbitrator would be required to render
an award in accord with the laws of the state in which the home is
located, and an award outside of that scope could potentially be
considered on a subsequent motion to vacate.

To the extent that the Plaintiff's remaining contentions are not
expressly addressed here, Judge McShan holds that they have been
considered and found to be without merit.

Egan Jr., J.P., Clark, Pritzker and Reynolds Fitzgerald, JJ.,
concur.

Ordered that the order is affirmed, with costs.

A full-text copy of the Court's Opinion dated Sept. 22, 2022, is
available at https://tinyurl.com/ycky22jh from Leagle.com.


HUMBOLDT COUNTY, CA: Faces Suit Over Cannabis Abatement Program
---------------------------------------------------------------
Nichole Norris, writing for Kym Kepm, reports that this morning,
The Institute for Justice (IJ) in partnership with abated local
landowners (featured earlier in articles on Redheaded Blackbelt)
filed a class-action lawsuit against Humboldt County. The
nationally acclaimed, non profit, human rights law firm filed the
suit on behalf of all 1219 Humboldt County cannabis abatement
recipients, which they claim have been the victim of "The County's
code enforcement policy [that] is designed to squeeze every dollar
it can from legalized marijuana, often at the expense of innocent
people."

The plaintiffs call the satellite cannabis abatement program "a
coercive land grab," "a maximum pressure campaign," and "an
extortive death blow" to property owners. Innocent landowners, nuns
growing vegetables, personal medical cultivators, low income
housing developers, lavender farmers, fire departments and
volunteers have all been rolled up in what the plaintiffs term a
"regulation-for-profit racket."

The Humboldt Environmental Harm Reduction (HEIR) program, better
known as the satellite cannabis abatement program, is overseen by
the Planning and Building Department's Code Enforcement Unit (CEU)
which now dominates the enforcement of cannabis laws, and has
extracted millions in fines and penalties primarily from rural
residents in Southern Humboldt's District Two (70%), Northern
Humboldt's District Five (17%), and Mid-West's District One (10%).


The lawsuit reads in part,

The County's conduct toward the Plaintiffs is part of a broader
policy and practice, pursuant to which the County cites landowners
for enhanced cannabis-related code violations without regard to
probable cause, fails to schedule administrative hearings at a
meaningful time and in a meaningful manner, imposes
unconstitutional conditions on permits for those properties,
imposes unconstitutionally excessive fines and fees, and denies
accused landowners the right to a jury of their peers to decide
factual questions that determine whether the Plaintiffs owe
hundreds of thousands, if not millions, of dollars in fines.

Only months after legalization in June 2017, the cannabis abatement
code changes were made by County staff, okayed by County Counsel,
and voted on by the Board of Supervisors at the time; Mike Wilson,
Estelle Fennel, Rex Bohn, Virginia Bass, and Ryan Sunberg. These
code changes that took effect in 2018, allowed for $6,000-10,000 in
daily fines, per violation for unpermitted commercial cannabis
cultivation and affiliated charges, such as structures without
permits, grading of more than fifty cubic yards, or developments
within streamside management areas, with smaller penalties for
unapproved septic systems, junk cars, living in RVs, and more.

The lawsuit describes the program's inconsistency, stating, "By
alleging that code violations relate to illegal cannabis
cultivation, the County exponentially increases the fines for those
violations, regardless of whether the violation poses any harm to
the community."

The program itself has changed the community as well.
Pre-Proposition 64 there was an estimated 15,000 black market
cannabis farms, also known as the traditional market. Since
cannabis became legal, the number of traditional market farms has
dwindled to 3,000-5,000 according to Humboldt County Sheriff Billy
Honsal when he spoke to us in an interview earlier this year. In
addition, Sheriff Honsal explained that of the approximately 1,000
permitted farms, only 75% were operating this year. That means an
estimated 32% of the original farms are left since legalization.
However many of our permitted farms are new, so that means less
than 32% of legacy operations remain today.

"We filed this class action to put an end to Humboldt's abusive
code-enforcement regime. The County issues life-ruining fines to
innocent people without proof or process," says Jared McClain,
lawyer at IJ heading the suit.

Attorneys Joshua House, Jared McClain, Rob Johnson, of IJ, are
filing the federal class action lawsuit on behalf of all cannabis
abatement victims, in addition to Thomas V. Loran III, and Derek M.
Mayor of Pillsbury Winthrop Shaw Pitmann in San Francisco and
Sacramento. The attorneys claim that what Humboldt County has been
doing to property owners is unconstitutional according to the
Fifth, Seventh, Eighth and Fourteenth Amendments, that in short
ensures the right to trial by a jury of your peers, due process of
law, and the right to prohibit government's excessive fines, fees
and forfeitures.

The suit reads in part:

Humboldt County fines landowners hundreds of thousands of dollars
for things they never did because it doesn't investigate the
charges it files. The accused rarely ever get the chance to defend
themselves . . . While the County makes accused landowners wait
indefinitely for an administrative hearing, fines continue to
accumulate and the County denies them permits to develop their
property. The only way out is to pay the County, one way or
another.

Type of Class Action Suit

The Institute for Justice is renowned for their work advocating for
residents across the country who are experiencing heavy handed,
unconstitutional government actions, which they coin "policing for
profit" and "regulation for profit."

This particular lawsuit is a class-action suit, which is a civil
lawsuit brought on behalf of a group, in this case who have
suffered common injuries as a result of the county's conduct, with
Plaintiffs acting to represent the whole group of abatement
recipients.

Essentially this case is not-for-profit, where the plaintiffs
represent all abatement recipients, they do not have to pay for
IJ's counsel and the attorneys are not monetarily compensated by
them. The named plaintiffs say they view it as "a community
service" that they are proud to participate in on behalf of the
whole county and beyond.

One of the leading attorneys on the suit Mr. McClain explains this
suit is a

23(b)(2), [which] means we're only seeking forward-looking
injunctive and declaratory relief on behalf of the class. No
damages. Injunction is ordering the county to do something or not
do something. Declaration is saying that they've violated the law.
So we're asking the court to say the county violated the rights of
everyone in the class and to enjoin/stop them from doing so
anymore. Basically we're asking the court to say the county's
cannabis-abatement program is unconstitutional and order them to
stop enforcing their laws in ways that violate the rights of our
clients and the class.

The plaintiff's reward for a win is policy changes that could
positively impact all HEIR cannabis abatement recipients, and may
even potentially ripple out to help revive the struggling Humboldt
economy. If they win, it will make it easier for other abated
property owners who feel wronged by Code Enforcement, to bring
their cases forward thereafter. Given the case is being filed in
Federal Court, the effects could potentially impact residents
nationwide as well who are enduring similar regulatory tactics by
state and local governments.

McClain details the Humboldt County Clients are, "Four examples of
the innocent people who the County's indiscriminate enforcement
policy has harmed."

The Humboldt County property owners leading the class action
federal suit, have all been featured in stories by this reporter on
the RHBB news site. The plaintiffs are District Five's Rhonda
Olson, and District Two's Corrinne and Doug Thomas, in addition to
Blu Graham, who was the very first abatement victim to speak out
publicly in 2020 on RHBB (anonymously at the time) about his case.
Today, Graham goes public with his story and explains why he
volunteered to participate in the class action lawsuit against the
County.

Blu Graham, a hardworking family man, now a grandfather, owns and
operates two small businesses including a hiking tourism company
Lost Coast Adventure Tours, where he escorts travelers through the
breathtaking Lost Coast Trail and expansive CA redwoods. He also
owns a restaurant with his wife called Mi Mochima that overlooks
the stunning Shelter Cove coast and dishes up their Humboldt
homegrown, Venezuelan recipes Friday-Sunday.

In May 2018, the same day seven of his neighbors received an
abatement, Graham also received a notice citing three alleged
violations, grading for the purpose of cultivating cannabis,
cultivation itself, and unpermitted structures, or hoop houses in
this case. The abatement initially came with a $30,000 daily fine
for 90 days, or 2.7 million dollars.

His hoop houses were empty, and Graham did not "grade for the
purpose of cannabis cultivation," as stated on the notice, so he
assumed the mistake could be easily resolved with a visit to the
Planning and Building Department.

Graham was incorrect.

Graham explained that he went to Code Enforcement immediately to
declare his innocence detailing, "I got abated on Thursday, I went
into Code Enforcement the following Monday."

Graham said he met in the main office of the Planning Dept. in
public with permitted farmers, "who were going through hell."
Graham added, "I was going through hell right alongside them, with
all these moms and grandmas who were coming in crying about their
abatements."

In order to prove he had no cannabis in his hoophouses or on his
property, Graham paid for his own satellite photos during the week
the abatement notice was posted, but Code Enforcement Officers John
Meredo, Warren Black, Brian Bowes and later Bob Russell continued
to deny his innocence and he was unable to get a meeting with
Director Ford for years.

Graham said, "I told the county I have nothing on my property. . .
I invited them to come inspect it that day to see for themselves,
which they refused. . . .they said I had to sign a compliance
agreement."

The suit describes Graham's three options given by the county,
stating, "Settle, appeal, or lose his land. They tried to persuade
Blu to take the first option--enter a settlement agreement under
which he'd admit guilt and pay a $30,000 fine to the County."

Graham said the initial "compliance agreement," which more
accurately should be called a "settlement agreement" according to
the Institute for Justice, also required him to hire an engineer,
tear his hoop houses down, and fill in his rain catchment pond used
for livestock, wildlife and in case of fire.

This was unacceptable to Graham because he said he was innocent.

Graham actually used the hoophouse to cultivate fresh produce for
his restaurant and had both a nursery and producers certificate to
do so. When he applied for the greenhouse structures in 2014 he
claims no one in the Planning Department told him he needed a $150
agricultural exempt permit, which may be due to the policy changing
after that with no notice to him.

Graham asked Code Enforcement Officer Brian Bowes for proof he was
cultivating cannabis, Bowes allegedly told Graham, "We don't have
any proof, but you weren't just growing asparagus in there."

Attorney McClain explains the county's policy has no regard for
probable cause. McClain said, "The County accuses anyone with a
greenhouse or garden plot of growing marijuana without a permit and
forces them to prove their innocence at a hearing the County never
provides. People have a right to grow food on their land without
having to prove to the government that they aren't growing
marijuana."

The suit also detailed, "The County then imposes ruinous daily
fines for things like the failure to get a permit before building a
greenhouse if the County thinks a landowner might have marijuana
inside the greenhouse."

"We are entitled to have greenhouses and to grow our own
vegetables, but according to [Code Enforcement], if you have a
greenhouse, you are a criminal, and I don't agree with that,"
Graham argued.

Although a large number of abatement recipients were cited for
growing cannabis commercially as a direct result of satellite
photos showing only a hoophouse, Humboldt County Superior Judge
Kelly Neal ruled in 2021 that a greenhouse is not "actual evidence"
of cannabis cultivation.

(A screenshot of a 2021 appeal of an appeal hearing at the Humboldt
County Superior Court, where Judge Kelly Neal ruled greenhouses are
not "actual evidence" of cannabis. Note: This case is not related
to the plaintiffs or IJ lawsuit.)
(A screenshot of a 2021 appeal of an appeal hearing at the Humboldt
County Superior Court, where Judge Kelly Neal ruled greenhouses are
not "actual evidence" of cannabis. Note: This case is not related
to the plaintiffs or IJ lawsuit.)

Similarly, logging legacies, and fire fuel breaks do not constitute
grading violations, as was also alleged in Graham's case.

Graham is highly aware of fire dangers in Northern California
because he has been a volunteer firefighter since he was nineteen
years old. He was the Whale Gulch Volunteer Fire Company Chief for
four years and he remains a Captain there today.

Graham's ridgetop was used as a fire fuel break to stop the Finley
Creek Fire that took out Shelter Cove in 1973 and threatened the
forest before stopping on his ridge. Graham's "grading" allegation
was for his fire prevention efforts including the fuel break
maintenance, brush clearing on an old logging flat, and his
installing of a rain catchment pond, which he had inspected and
approved by the environmental organization Sanctuary Forest. This
is technically a grading violation with a maximum penalty of 1,000
per day when not connected to cannabis cultivation, and in some
cases it can be resolved with a retroactive permit.

Currently the County offers low cost agricultural permits for ponds
such as his, however, Graham said that no one in Code Enforcement
mentioned this as a resolution to Graham in the over four years his
case was left unresolved.

Graham said, "The state of California is burning down, we need as
much water storage as we can get . . . .so I basically got abated
for being ahead of the game."

Right to a Jury and Due Process of Law

One of the issues in this lawsuit is the lack of a jury trial, in
addition to the demanding timeline, which IJ deems is
unconstitutional, for it violates one's right to due process of
law. When property owners receive an abatement notice, they are
given only ten calendar days to resolve the violations where
applicable, and apply for an appeal hearing with Code Enforcement.
The initial fines threatened to be applied daily, almost always
exceeding the value of the property if applied for 90 days, so
tensions are high.

"The Planning and Building Department has run wild with its new
fine-driven mandate and adopted a policy and practice of charging
cannabis-related code violations without proof or process," The
lawsuit says.

Some abatement recipients wait for years without due process after
they file for an appeal hearing, while worried they will lose all
they have.

Cannabis Attorney Eugene Denson, who specializes in abatement
cases, questions the validity of the appeal hearings which he calls
a "kangaroo court."

Denson says, "The hearing officer is an out of town lawyer who acts
as a judge, and is contracted by the Director of the Planning Dept.
John Ford."

Denson points out that Ford oversees the abatement program
afterall, and who wants to upset their boss?

McClain added, "County officials brag that the administrative
judges they hire have never ruled against the County. That's why
every American has a right to a jury of their peers."

Of the approximately 6% of appeal hearings held so far in four
years, all decisions have gone in favor of the county, though a
handful or 1% have been appealed to the Humboldt Superior Court
(Note: This may not include appeal hearings that were labeled
"historic" prior to a system update in the summer of 2019).

Given Code Enforcement's "data migration to new dept. software in
the summer of 2019" there are 313 cases labeled "closed historic"
without other case status details. Percentages listed will reflect
the 906 abatements remaining, instead of 1219, which have status
details listed, to get a more accurate picture of current case
status.

(Notices distributed until Jan 2020, chart created by UC Berkeley
Cannabis Research Center)
(Notices distributed until August 2022 Jan 2020, For more
information on how the information was compiled, click here. [Chart
created by Nichole Norris. Data analyzed by UC Berkeley Cannabis
Research Center]

New cases continue to add up, with 10% of abatement recipients
listed as just receiving a notice or are in various initial phases
of the process. While property owners have extreme fines and strict
timelines, the county does not have any timelines set for
themselves to resolve cases or bring them to an appeal hearing.
Subsequently, Code Enforcement is at a virtual standstill at moving
through requests for appeal hearings, with about 6% in limbo,
sometimes for years, such as Graham.
Despite his having applied for an abatement appeal hearing in the
ten day window that recipients are allowed when they are given an
abatement, for over four years Graham was denied his right to his
appeal hearing, and left worrying he could potentially owe $30,000
a day, every day since May 2018. This has not only been financially
devastating but caused his family immeasurable stress.

Graham compared the abatement program to a "mob shakedown," and
added, "I feel like they are strong-arming people. [At $30,000 a
day ] I must owe them, a billion dollars by now . . . and so what
are they going to do, take my home? Do they want people who work
hard for this community sleeping under bridges?"

Graham said even though he was innocent and complied with the
county's demands, nothing he did could convince Code Enforcement to
resolve his case or get him the appeal hearing he requested, that
is until last month, a couple of weeks before the lawsuit was
filed. Graham finally received a notice declaring his appeal
hearing was scheduled for Oct 14. Because he accepted a settlement
offer (detailed later), the hearing is being canceled, and, Graham
said after negotiations with Warren Black, he felt it was more
likely another tool used by Code Enforcement to get him to sign a
settlement agreement.

This wasn't the first time he felt forced to sign. Since 2020, Code
Enforcement held up Graham's Safe Homes permit approval "as ransom"
he felt, in exchange for his signing the settlement agreement,
despite his applying and paying for the retroactive house permit
years ago, meaning his home was at stake.

Additionally, the suit details how the County bypassed Graham's
legal counsel throughout the negotiation process, stating,

Mr. Black encouraged Blu to submit public-records requests to see
the County's perfect win-rate in administrative hearings. . . Blu
interpreted this email as telling him he should settle his case
because Code Enforcement does not lose at its administrative
hearings. . . Mr. Black emailed Blu again on August 4, 2020, and
confirmed that he would only "release the hold on [Blu's] safe
homes project" if Blu settled his abatement case.

The suit continues, "Shortly after the County served the notice of
administrative hearing, Mr. Black once again contacted Blu directly
to pressure him to settle."

The negotiations were ongoing for over four years. After Code
Enforcement demanded $30,000 a day from Graham in penalties, a
$30,000 flat fine was later offered, then $20,000, then $10,000,
and finally a no-penalty settlement agreement. After that, the word
cannabis was removed from the agreement, and only the rain
catchment agricultural pond was cited, indicating Code Enforcement
acknowledged they had no evidence of cannabis cultivation.

The lawsuit details more about how County residents found
themselves in this situation, explaining,

Once marijuana became legal, a newly constituted Code Enforcement
Unit was in place to aggressively enforce code violations in
Humboldt County. . . . The County knew there were plenty of code
violations due to its underenforcement of the code for decades.
Indeed, just as the County implemented its cannabis-driven code
enforcement, it also created a "Safe Home Program," under which
gave landowners from October 2017 through the end of 2022 to come
forward and apply for as-built permits for their property without
facing penalties. . . So, while the County dangled the carrot of
amnesty for building code violations, its Code Enforcement unit
began blindly swinging the stick of ruinous fines at any violation
with a perceived nexus to cannabis.

Graham kept professing his innocence and working to comply, and
said, "At what point is this just a fear tactic? They are basically
saying, pay us money or we're going to hammer you."

The suit details how Graham's case violates his rights, stating,
"The County's refusal to schedule a timely administrative hearing
forces an accused landowner to endure years under the threat of
fines, fees, abatement costs, and leaves the landowner unable to
develop their land with no guarantee that the County will ever
schedule their hearing. . . Fully aware of the financial and
psychological costs brought to bear by its abatement regime, the
County routinely checks in with landowners to ask if they still
want a hearing while pressuring them into settling their case
instead."

The lawsuit aspires to bring relief for cases like Graham's. It
requests the court to,

"Declare that the County's cannabis-related code-enforcement
policies and practices violate the procedural due process
guaranteed by the Fourteenth Amendment. . . Plaintiffs respectfully
request that this Court: Certify a class under Rule 23(b)(2)
consisting of: "All persons who are currently facing penalties for
cannabis-related Category 4 violations that were levied after
January 1, 2018, who filed an ‘Attachment C' to request an
administrative hearing within 10 days of the County effecting
service, and who have still not received a hearing for their
appeal."

This means people who have requested appeal hearings but have not
received them yet and who have not settled yet are part of this
class action. IJ reports they are happy to speak with anyone who
has an active abatement against them.

On September 26, Graham's abatement finally came to a close he felt
because District Two Supervisor Michele Bushnell arranged to meet
with him, Director John Ford, and Code Enforcement officer Bob
Russell.

The meeting aimed to retroactively resolve Graham's unpermitted
rain catchment agriculture pond, the basis for his pending
abatement in order to avoid the appeal hearing. An appeal hearing
would not only have been costly and time consuming for the county,
but for Graham, it would have added more years of stress and legal
fees, in addition to possible penalties of $1,000 a day for 90
days, or $90,000.

The suit details Graham's resolution stating, "Director Ford agreed
to drop Blu's case without a signed settlement agreement if Blu
paid over $3,700 in administrative fees and got the permit for the
pond that Blu had been requesting since spring 2018 . . . Director
Ford accepted the engineering report Blu had submitted back in
January 2019 to support his permit application. . . Blu completed
the permitting process on Monday, October 3, 2022, and the County
closed its case against him."

The lawsuit adds, "Plaintiff Blu Graham was planning to be a class
representative until the County suddenly agreed to dismiss his
abatement order the week before filing."

IJ's Past Constitutional Lawsuit Regarding Excessive Fines, Fees,
and Forfeitures

Founded over thirty years ago in 1991, The Institute for Justice
has an expansive outreach with seven headquarters nationwide, and
attorneys working in offices in most states.

Screengrab from Institute of Justice's website.
Screengrab from Institute of Justice's website.

Going head to head with the government isn't the easiest area of
law to practice, and win at least. Still, IJ's case track record
speaks for itself, having three in four wins of their more than 300
cases litigated, ten of which were before the Supreme Court.

In 2019 their Timbs v Indiana Supreme Court case unanimous ruling
was authored in part by Justice Ruth Bader Ginsburg (RBG) about a
year before she passed. In her ruling RBG wrote about excessive
fines, fees and forfeitures, and the long history of their being
used to eradicate certain groups of people by penalizing them for
normal conduct.

RBG wrote in her decision,

"Exorbitant tolls undermine other constitutional liberties. . .
Excessive fines can be used, for example, to retaliate against or
chill the speech of political enemies. . . Even absent a political
motive, fines may be employed ‘in a measure out of accord with
the penal goals of retribution and deterrence,' for ‘fines are a
source of revenue,' while other forms of punishment ‘cost a State
money.'

In 2019, thanks to the Institute for Justice, The Supreme Court
ruled unanimously the Eighth Amendment applied to not just the
Federal governments, but also states, counties, and local
municipalities, deeming excessive fines unconstitutional at all
levels of government.

In her 2019 ruling, RBG detailed part of the history of excessive
fines post slavery and it's importance in maintaining our civil
liberties.

RBG wrote,

Following the Civil War, Southern States enacted Black Codes to
subjugate newly freed slaves and maintain the prewar racial
hierarchy. Among these laws' provisions were draconian fines for
violating broad proscriptions on "vagrancy" and other dubious
offenses. . . When newly freed slaves were unable to pay imposed
fines, States often demanded involuntary labor instead.

Over the past five years rural Humboldt residents say they too feel
unduly burdened by excessive fines for dubious offenses, extreme
demands, heavy-handed enforcement, and even cite feeling targeted
due to a prejudice against their community at a time when
legalization promised to deliver liberation and legitimacy.

Rhonda Olson, another plaintiff featured in a recent RHBB series
that got the attention of the IJ team, said, "It's ironic that
after legalization the fines threatened for cannabis allegations,
even if you are innocent, leave property owners dreaming of the
days when you'd just go to jail vs face a fine of, in my case over
7 million-- and for what, the crime of buying property, and trying
to provide low income housing?"

After Olson purchased three properties to develop affordable
housing she got an abatement notice on all parcels in the previous
owners name for cultivation years prior to her purchase. Code
Enforcement abated and red tagged her barn threatening $104,000 in
daily fines, or $9.36 million total and demanded she sign a
settlement agreement.
The new set of abatements given in her name reduced the daily
penalties to $83,000, or $7,470,000.

Olson explained, "The county said they were going to work with me,
and instead slapped me with a red tag on my barn and $83,000 in
daily fines. . . They keep trying to get me to sign a settlement
agreement and pay fines under duress-- I refuse."

The IJ suit states Olson faces daily fines that are nearly double
her total purchase price of 60,000 and adds, "The County has also
prohibited her from developing her property--the very reason she
bought it--while her case is pending. She's been waiting over two
years for a hearing."

The plaintiffs feel their concerns have largely been "met with
crickets" by policy makers over the years. Olson explains she
experienced "high pressure," "bullying tactics," but, "when we
asked policy makers for help for years, no one helped us."

Olson adds, "The stress of dealing with Humboldt county for almost
two years made me physically sick [with shingles]. I think the
abatement program was set up to do exactly that: bleed us of every
dollar we have and make us go away. Well I'm here to stay, I've
been lucky enough to get support from the Institute for Justice."

The Scope: Farm Sizes, Violations Cited and Compliance Agreement
Penalties

According to the 2020 Census, Humboldt County has a population of
136,101, and 54,140 households. When considering the 1,219
abatements in total, that's a rough estimate of 1/45 households
impacted by the HEIR program countywide.

That figure becomes more dire when considering that 70% of
abatements were given to District Two, with a population of 26,778
according to the county's district rezoning data featured on the
Lost Coast Outpost. If household v. populations are applied evenly
countywide (which they may or may not be), that equates to 10,652
households in District Two, meaning approximately 1/13 households
have been directly impacted by this "unconstitutional" program in
Southern Humboldt. This does not account for affiliated workers,
family, friends who have been directly impacted either, not to
mention the local economy.

UC Berkeley Cannabis Research Center Associates helped us analyze a
records request response pertaining to abatements from Code
Enforcement last month, to get an idea of settlement agreements
signed, the scope of the fines paid, violations cited and size of
the farms at issue.

Of the 1,219 abatement notices in total, the average farm size*
alleged is 10,227 sq. ft. (*of the 59.77% of owners that have their
square footage noted in the records request), with an average of
2.7865 violations cited each.

Farm Size
*The following are based on the 59.77% that note their sq ft
cultivated

Average Violations Cited
*Avg # for farms 20k sq ft  4.115385 violations
Chart created by Nichole Norris from information analyzed by UC
Berkeley.

Since legalization, medical cannabis laws have also been unclear
within enforcement agencies (as discussed in a previous article).
There is no way to know for certain how many of these abatement
recipients signed compliance agreements and paid fines based on
Code Enforcement's inconsistent medical cannabis law understanding.
So for example, some of the abatements under 5,000 sq.ft. with an
average of 2.05 violations cited, could be hoophouses and medical
gardens and/or vegetables.

"The crude satellite images that the County relies on reveal plenty
of activity wholly unrelated to cannabis growth--let alone illegal
growth in a state that allows residents to grow cannabis for
medical and recreational use," the lawsuit filing details.

Many notice recipients were terrified of the daily penalties
threatened and so they followed the instruction of Code Enforcement
and signed a settlement agreement, under duress, and paid a
penalty, often for the amount of the daily fine proposed,
$6,000-$10,000 for each alleged violation.

The lawsuit describes the HEIR program as a "pressure campaign. . .
with the ruinous fines. . . designed to generate revenue for the
County. . . Once a landowner receives an [abatement], they are
trapped unless they pay the County to let them out."

About 33% of noticed property owners have agreed to sign settlement
agreements, and pay an average penalty of $15,509.05 for all farm
sizes. In total, $3,858,000 in penalties have been contracted to be
paid, with $3,513,503.56 of that collected so far, in addition to
millions more in costs (unquantifiable) and administrative fees
(not listed in the public records request).

Size of Farm Average Penalty*
Farms >10k sq ft $19,327.01
Farms

IFIT HEALTH: Faces Class Suit Over Defective Home Fitness Equipment
-------------------------------------------------------------------
Erin Shaak, writing for ClassAction.org, reports that a proposed
class action claims home fitness equipment made by iFIT Health and
Fitness, Inc. is defective in that the machines' workout-streaming
capabilities are hampered by severe connectivity problems.

The 54-page case says that although iFIT has advertised its
NordicTrack-, ProForm-, Freemotion- and Matrix-brand equipment as
able to "function seamlessly" with the company's on-demand workout
streaming service, which purportedly allows users to stream "a wide
variety" of fitness classes directly to their video-equipped
machines, the products frequently experience connectivity and
performance problems, including audio and video lag, buffering,
freezing, poor picture quality, and even total failure.

The connectivity issues apparently occur so frequently that some
users have found that they're unable to complete most workouts
without experiencing a problem, the filing relays.

Be sure to scroll down to see which iFit NordicTrack, ProForm,
Freemotion and Matrix products are covered by the lawsuit.

As the lawsuit tells it, it's only after paying a "substantial
premium," sometimes thousands of dollars, for iFIT's treadmills,
stationary bikes, elliptical machines, rowers and other
streaming-capable home training equipment that consumers come to
learn of the pervasive connectivity and streaming issues, which the
case says render the products essentially useless.

The suit contends that the various "fixes" iFIT has recommended to
users—such as restarting their equipment, placing a wireless
router next to their machine, asking other household members to
stop using the internet during a workout, purchasing a dual band
router or mesh network, or using a cell phone as a hotspot—have
failed to consistently solve the connectivity problems at issue. As
a result, the case says, consumers have paid a premium price for
fitness equipment that fails to stream video as expected and
intended.

"Absent these performance properties, iFIT equipment is nothing
more than outdated fitness equipment sold at inflated prices," the
complaint reads.

iFIT equipment far from "connected," suit says
The lawsuit charges that although iFIT describes itself as a
"health and fitness subscription technology company" that provides
"connected fitness products" in a market dominated by giants such
as Peloton, these representations are a far cry from customers'
experiences with the company's at-home machines and streaming
service. According to the suit, online forums are filled with
consumer complaints about connectivity problems with their iFIT
devices, including buffering, freezing, poor audio/video quality,
and complete video failure.

One plaintiff, for example, says he experiences total video failure
during 75 to 80 percent of the workouts he performs on his $850
NordicTrack s22i Studio Bike. When a video doesn't completely fail,
the man otherwise experiences audio and video lag, buffering, and
poor picture quality about 20 to 25 percent of the time, according
to the complaint.

The other plaintiff in case reports having experienced similar
issues with his $1,999 s22i Studio Bike, claiming that "a
substantial percentage of his workouts have resulted in the workout
dropping and the bike having to reboot and/or total video
failure."

Although consumers have attempted to address the streaming
connectivity problems—including by moving their router, adding a
WiFi extender or mesh networking device (such as Google mesh),
stopping other streaming activities while someone is exercising,
purchasing a dual band router, and using their cell phone's hot
spot instead of their home internet network—these efforts have
all failed to fix the underlying defect, the lawsuit alleges.

According to the suit, iFIT "knew or should have known" that its
fitness equipment and streaming service are defective yet "made no
effort" to resolve the problem before selling the devices to the
public.

Per the suit, iFIT has attempted to avoid performing warranty
repairs by placing the onus on consumers to attempt to fix the
connectivity problems, commonly by blaming their WiFi networks.
Even when the company determines that a warranty repair is needed,
customers are often required to pay a handling charge for
replacement parts, or a trip charge for in-home service, according
to the case.

Meanwhile, iFIT has failed to disclose the apparent defect to
consumers or come up with a permanent fix "despite knowing the
Defect persists today," the lawsuit contends.

Who does the lawsuit look to cover?
The lawsuit aims to cover any person or entity in the United States
who purchased an iFIT-enabled fitness device, including those
mentioned above.

How do I join the lawsuit?
There's usually nothing you need to do to join or be considered
part of a class action lawsuit when it's first filed. The time to
take action is typically if and when a lawsuit settles, which could
take months or years. If the case settles, those who are covered,
called "class members," should receive notice of the settlement
(often by mail or email) with instructions on how to file a claim
for their share.

In the meantime, one of the best things you can do is stay
informed. We'll update this page with any notable news.

If you own a NordicTrack, ProForm, Freemotion or Matrix fitness
machine, or just want to stay in the loop on class action lawsuit
and settlement news, sign up for ClassAction.org's free weekly
newsletter. [GN]

IROBOT CORP: M&A Law Firm Probes Possible Securities Class Action
-----------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating:

iRobot Corp. (IRBT), relating to its proposed acquisition by
Amazon.com, Inc. Under the terms of the agreement, IRBT
shareholders are expected to receive $61.00 in cash per share they
own. Click here for more information:
https://www.monteverdelaw.com/case/irobot-corp. It is free and
there is no cost or obligation to you.

                About Monteverde & Associates PC

We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers in 2013 and 2017-2019 as a Rising Star
and in 2022 as a Super Lawyer in Securities Litigation. He has also
been selected by Martindale-Hubbell as a 2017-2021 Top Rated
Lawyer. Our firm's recent successes include changing the law in a
significant victory that lowered the standard of liability under
Section 14(e) of the Exchange Act in the Ninth Circuit. Thereafter,
our firm successfully preserved this victory by obtaining dismissal
of a writ of certiorari as improvidently granted at the United
States Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407
(2019). Also, we have recovered or secured a dozen cash common
funds for shareholders in mergers & acquisitions class action
cases.

If you own common stock in any of the above listed companies and
wish to obtain additional information and protect your investments
free of charge, please visit our website or contact Juan E.
Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com
or by telephone at (212) 971-1341. [GN]

KALITTA AIR: Faces Discrimination Suit From Unvaccinated Employees
------------------------------------------------------------------
thealpenanews.com reports that an Alpena-area employer faces a
federal lawsuit after employees say they weren't given proper
accommodations when they would not get vaccinated for COVID-19.

Kalitta Air, based in Ypsilanti with a facility in Oscoda, was
named in a lawsuit filed in the U.S. District Court for the Eastern
District of Michigan by 11 of its employees.

The plaintiffs say the airline discriminated against them by not
accommodating their religious and medical exemptions from a company
mandate ordering all employees to receive the vaccination.

The airline has not yet filed a response to the complaint.

According to the class action suit, the airline put anyone who was
not fully vaccinated against the sickness on unpaid leave,
terminating after three months employees who argued an exemption
from the vaccine on religious grounds and after one year those who
claimed a medical exemption.

Even employees who worked entirely remotely had to take the vaccine
or be terminated, according to the lawsuit.

Kalitta should have provided other accommodations for people who
said they were unable to receive the vaccine, the lawsuit said.

The suit contends that Kalitta retaliated against employees who
refused vaccination by not bringing them back from unpaid leave
when, the plaintiffs believe, the vaccine mandate was proven
unnecessary.

The 99-page complaint asked that the federal court award back pay
and other damages to employees who lost their jobs because of their
vaccination status. [GN]

L'OREAL USA: Raslavich Sues Over Unsolicited Telephonic Calls
-------------------------------------------------------------
Anna Raslavich, individually and on behalf of all others similarly
situated v. L'OREAL USA S/D, INC., Case No. 157600107 (Fla. Cir.,
13th Judicial, Hillsborough Cty., Sept. 19, 2022), is brought
against the Defendant for the Defendant's violations of the Florida
Telephone Solicitation Act by engaging in unsolicited telephonic
sales calls.

To promote its goods and services, the Defendant engages in
telephonic sales calls to consumers without having secured prior
express written consent as required by the FTSA. The Plaintiff and
the Class members have been aggrieved by the Defendant's unlawful
conduct, which adversely affected and infringed upon their legal
rights not to be subjected to the illegal acts at issue. Through
this action, the Plaintiff seeks an injunction and statutory
damages on behalf of the Plaintiff individually and the Class
members and any other available legal or equitable remedies
resulting from the unlawful actions of the Defendant, says the
complaint.

The Plaintiff is an individual and a "called party."

The Defendant is a consumer goods retailer.[BN]

The Plaintiff is represented by:

          Benjamin W. Raslavich, Esq.
          KUHN RASLAVICH, P.A.
          2110 West Platt Street
          Tampa, FL 33606
          Telephone: (813) 422–7782
          Facsimile: (813) 422–7783
          Email: ben@theKRfirm.com

LOANDEPOT INC: Faces Smith Suit Over Unsolicited Telephone Calls
----------------------------------------------------------------
Jonathan Smith, on behalf of himself and others similarly situated,
Plaintiff v. LoanDepot, Inc., Defendant, Case No. 2:22-cv-01674-GMS
(D. Ariz., Oct. 3, 2022) arises from the Defendant's violation of
the Telephone Consumer Protection Act by using an artificial or
prerecorded voice in connection with non-emergency calls it places
to telephone numbers assigned to a cellular telephone service,
without prior express consent.

According to the complaint, the Defendant routinely uses an
artificial or prerecorded voice in connection with non-emergency
calls it places to wrong or reassigned cellular telephone numbers.
The Plaintiff suffered actual harm in that he suffered an invasion
of privacy, an intrusion into his life, and a private nuisance,
says the suit.

LoanDepot, Inc. is a publicly traded company that sells mortgage
and non-mortgage lending products.[BN]

The Plaintiff is represented by:

          Aaron D. Radbil, Esq.
          James L. Davidson, Esq.
          GREENWALD DAVIDSON RADBIL PLLC
          5550 Glades Road, Suite 500
          Boca Raton, FL 33431
          Telephone: (561) 826-5477
          E-mail: aradbil@gdrlawfirm.com
                  jdavidson@gdrlawfirm.com

MANHATTAN LUXURY: Troutman Firm Discusses Ruling in DNC Class Suit
------------------------------------------------------------------
Eric J. Troutman, Esq., of Troutman Firm, in an article for The
National Review, reports that so one of my favorite cases of the
year so far was Rombough v. State Farm.

There it was held that a Plaintiff cannot sue for DNC violations
unless they personally registered their number on the national DNC
list.

I love that rule because it makes certifying a NDNCR class
basically impossible–there is no way to know which folks on the
DNC actually registered their numbers and which simply inherited
numbers that were already registered. Really good class action
killer.

Well in Watson v. Manhattan Luxury Automobiles, 2022 WL 4586407
(S.D.N.Y. Sept. 29, 2022)the court decided class actions must not
be killed.

In Watson an auto dealership closed down and basically sold its
customer list to another dealership that decided to call and text
the previous dealership's customers. Probably not a good idea.
Rather obviously the EBR with the first dealership does not
transfer to the second dealership. So second dealership is in a
heap of trouble with regard to numbers on the national DNC list.

This is where Rombough could have come in handy. But it didn't. The
Court REJECTED the argument that class members had to register
their own numbers on the DNC. Instead it found that everyone on the
NDNCR could bring suit.

Matters get worse.

Since the Dealership had no real basis to claim any form of consent
or an EBR the court elected to CERTIFY the case. Eesh.

One interesting side note in this one–how the court dealt with
experts.

The Defendants challenged the expert reports from "our friends"
Snyder and Anya. The Court overruled the objections to Anya's
report but sustained the objections to Snyder's "Defendant used an
ATDS" opinion. On the other hand the Court also struck Sponslor's
opinions that Defendant didn't use an ATDS and that no database
exists to determine whether a text was opened (court found the
latter opinion didn't matter.) [GN]

MCDERMOTT INT'L: Edwards' Supplemental Class Complaint Dismissed
----------------------------------------------------------------
Judge George C. Hanks, Jr., of the U.S. District Court for the
Southern District of Texas, Houston Division, adopts the Magistrate
Judge's memorandum and recommendation dismissing the Plaintiff's
supplemental class action complaint in the lawsuit titled MIRIAM
EDWARDS, et al., Plaintiffs v. McDERMOTT INTERNATIONAL, INC., et
al., Defendants, Case No. 4:18-cv-04330 (S.D. Tex.).

On Oct. 19, 2021, the case was referred to Magistrate Judge Andrew
M. Edison for all pretrial matters under 28 U.S.C. Section
636(b)(1)(B). Judge Edison filed a Memorandum and Recommendation on
Aug. 30, 2022, recommending that the Defendants' Motion to Dismiss
Plaintiff's Section 10(b) Supplemental Class Action Complaint be
granted.

On Sept. 20, 2022, Lead Plaintiff Nova Scotia Health Employees'
Pension Plan filed its Objections. In accordance with 28 U.S.C.
Section 636(b)(1)(C), the Court is required to make a de novo
determination of those portions of the magistrate judge's report or
specified proposed findings or recommendations to which objection
has been made. After conducting this de novo review, the Court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.

The Court has carefully considered the Objections; the Memorandum
and Recommendation; the pleadings; and the record. The Court
accepts Judge Edison's Memorandum and Recommendation and adopts it
as the opinion of the Court.

The Court, therefore, ordered that:

   (1) Judge Edison's Memorandum and Recommendation is approved
       and adopted in its entirety as the holding of the Court;
       and

   (2) Defendants' Motion to Dismiss Plaintiff's Section 10(b)
       Supplemental Class Action Complaint is granted.

A full-text copy of the Court's Order dated Sept. 22, 2022, is
available at https://tinyurl.com/4pczddnm from Leagle.com.


MDL 2913: Crawfordsville School Sues Over Youth E-Cigarette Crisis
------------------------------------------------------------------
Crawfordsville Community School Corporation, on behalf of itself
and all others similarly situated, Plaintiff v. JUUL Labs, Inc.
F/K/A PAX Labs, Inc.; James Monsees; Adam Bowen; Nicholas Pritzker;
Hoyoung Huh; Riaz Valani; Altria Group, Inc.; Altria Client
Services LLC; Altria Group Distribution Company; AND Philip Morris
USA, Inc. Defendants, Case No. 3:22-cv-05688 (N.D. Cal., Oct. 3,
2022) is a class action against the Defendants for negligence,
gross negligence, and violations of the Indiana Public Nuisance Law
and the Racketeer Influenced and Corrupt Organizations Act.

According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.

The Crawfordsville Community School case has been consolidated in
MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES,
AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.

Crawfordsville Community School Corporation is a public school
district serving more than 1,400 students.[BN]

The Plaintiff is represented by:

          Thomas P. Cartmell, Esq.
          Jonathan P. Kieffer, Esq.
          Tyler W. Hudson, Esq.
          WAGSTAFF & CARTMELL LLP
          4740 Grand Ave., Ste. 300
          Kansas City, MO 64112
          Telephone: (816) 701-1100
          Facsimile: (816) 531-2372
          E-mail: tcartmell@wcllp.com
                  jpkieffer@wcllp.com
                  thudson@wcllp.com

               - and -

          Rahul Ravipudi, Esq.
          PANISH SHEA & BOYLE LLP
          11111 Santa Monica Boulevard, Suite 700
          Los Angeles, California 90025
          Telephone: (310) 477-1700
          Facsimile: (310) 477-1699

               - and -

          Khaldoun Baghdadi, Esq.
          WALKUP MELODIA KELLY & SCHOENBERGER, P.C.
          650 California Street, 26th Floor
          San Francisco, CA 94108  
          Telephone: (415) 617-1269
          E-mail: kbaghdadi@walkuplawoffice.com

               - and -

          Andy D. Birchfield, Jr., Esq.
          Joseph G. VanZandt, Esq.
          BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
          234 Commerce Street
          Montgomery, AL 36103
          Telephone: (334) 269-2343
          E-mail: Andy.Birchfield@BeasleyAllen.com
                  Joseph.VanZandt@BeasleyAllen.com

               - and -

          John P. Fiske, Esq.
          BARON & BUDD, P.C.
          11440 West Bernardo Court Suite 265
          San Diego, CA 92127
          Telephone: (858) 251-7424  
          Facsimile: (214) 520-1181
          E-mail: jfiske@baronbudd.com

MDL 3043: 18 Suits Consolidated in Acetaminophen Liability Row
--------------------------------------------------------------
In the multi-district litigation captioned IN RE: ACETAMINOPHEN -
ASD/ADHD PRODUCTS LIABILITY LITIGATION, MDL No. 3043, Judge Karen
K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation transfers two cases each from the U.S.
District Court for the Western District of Arkansas, Central
District of California, District of Nevada and Western District of
Washington; six cases from the Western District of Missouri; three
cases from the Northern District of California and one from the
District of Minnesota, all to the Southern District of New York
and, with the consent of that court, assigned to Judge Denise L.
Cote for coordinated or consolidated pretrial proceedings.

This litigation involves defendants Walmart Inc., CVS Pharmacy,
Inc., Walgreen Co., Costco Wholesale Corporation, Rite-Aid
Corporation, Safeway, Inc., Target Corporation, Family Dollar Inc.
and Dollar Tree Inc.

All actions present common factual questions arising from the
allegation that plaintiffs used over-the-counter generic
acetaminophen products while pregnant and, as a result of prenatal
exposure to acetaminophen, their children developed autism spectrum
disorder (ASD), attention deficit hyperactivity disorder (ADHD), or
both.

The common factual questions include whether prenatal exposure to
acetaminophen can cause ASD and ADHD, whether and when defendants
knew or should have known of the risk based on studies allegedly
linking acetaminophen to ASD and ADHD and the alleged role and
potential responsibility of common suppliers of the acetaminophen
products at issue. Thus, the issues concerning general causation,
the background science, and regulatory history will be
substantially the same in all actions. Additionally, all defendants
are likely to assert the same preemption defense in each action.

In opposing centralization, defendants principally argue that
common factual questions are lacking, centralization is premature,
centralization of competing defendants in an industrywide
litigation will be inefficient and alternatives to centralization
are practicable. Defendants assert that factual differences across
the actions undercut any common factual questions (i.e. each
retailer sells different acetaminophen products sourced from
different suppliers), the alleged ASD and ADHD injuries allegedly
are different medical conditions with distinct causes and risk
factors, and plaintiff-specific causation issues pertaining to each
mother's usage of acetaminophen will be at issue.

The Panel held that the common factual core in these nearly
identical actions far outweighs the plaintiff-specific differences
(whether prenatal exposure to acetaminophen caused plaintiffs'
children to develop ASD or ADHD). Although defendants sell
different store brands of acetaminophen products, the active
ingredient at issue is the same in all actions is acetaminophen. As
to differences in the claimed injuries, plaintiffs commonly allege
that ASD and ADHD are both neurodevelopmental disorders caused by
acetaminophen's in utero impact on brain development. These common
factual allegations, which are central to all actions, are
sufficient to warrant centralization, and almost all personal
injury litigation involves questions of causation that are
plaintiff specific. Those differences are not an impediment to
centralization where common questions of fact predominate.

Additionally, the panel noted that information about the interested
parties has been developed in these circumstances, the question of
centralization may be decided even though all potential defendants
have not been named. A single MDL encompassing all defendants is
necessary to ensure the just and efficient conduct of this
litigation. The panel is persuaded that the Southern District of
New York is the appropriate transferee district for this litigation
considering that many of the manufacturers supplying the retailer
defendants are based in or near New York, and thus significant
common evidence is expected to be located in this area.

A full-text copy of the Court's October 5, 2022 order is available
at https://bit.ly/3Ve0djR

MDL 3047: Court Transfers 28 Suits to N.D. Cal.
-----------------------------------------------
Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation issued a ruling in the multi-district
litigation captioned IN RE: SOCIAL MEDIA ADOLESCENT
ADDICTION/PERSONAL INJURY PRODUCTS LIABILITY LITIGATION, MDL No.
3047, transferring one case each from the U.S. District Court for
the Southern District of Alabama, District of Delaware, Southern
District of Florida, Northern District of Georgia, Southern
District of Illinois, Eastern and Western Districts of Kentucky,
Western District of Louisiana, Western District of Missouri,
District of Oregon, Middle District of Tennessee, Northern and
Southern Districts of Texas and the Eastern District of Wisconsin;
eight cases from the Northern District of California; and three
cases each from the District of Colorado and Northern District of
Illinois all to the Northern District of California and, with the
consent of that court, assigned to Judge Yvonne Gonzalez Rogers for
coordinated or consolidated pretrial proceedings.

This litigation involves Meta platforms' (Facebook and Instagram)
alleged encouragement of addictive behavior, failure to verify
users' ages, encouragement of adolescents to bypass parental
controls and inadequately safeguarding against harmful content
and/or intentionally amplifying harmful and exploitive content.

The panel held that the Northern District of California is an
appropriate transferee district for this litigation. Several
defendants are headquartered in or near this district, and
centralization will facilitate coordination with the state court
cases pending in California. The panel said that centralization
will also eliminate duplicative discovery, prevent inconsistent
pretrial rulings, including with respect to motions to dismiss and
conserve the resources of the parties, their counsel and the
judiciary. Responding plaintiffs largely favor centralization,
though their stance on whether to include claims against defendants
other than Meta varies. The Meta defendants support centralization
of all actions in the Eastern or Western District of Kentucky or,
alternatively, in the Middle District of Florida or the Northern
District of Georgia.

A full-text copy of the Court's October 6, 2022 order is available
at https://bit.ly/3yn2aAR

MG BILLING: Court Grants in Part Bid to Dismiss Vandiver Class Suit
-------------------------------------------------------------------
In the case, JAMES VANDIVER, on behalf of himself and all others
similarly situated, Plaintiff v. MG BILLING LIMITED d/b/a
Probiller, and Does 1-50, Defendants, Civil Action No.
1:21-cv-02960-CNS-MDB (D. Colo.), Judge Charlotte N. Sweeney of the
U.S. District Court for the District of Colorado grants in part and
denies in part Probiller's Motion to Dismiss.

Before the Court is Mr. Vandiver's Objection to the Magistrate
Judge's Recommendation to grant in part and deny in part
Probiller's Motion to Dismiss.

The allegations in Mr. Vandiver's Complaint are summarized in the
Magistrate Judge's Recommendation. After summarizing the
Complaint's allegations, the Magistrate Judge discussed the three
grounds on which Probiller sought dismissal: (1) Mr. Vandiver
failed to state a claim for breach of contract because Probiller's
Customer Terms and Conditions ("CTC") authorized charging him for a
second membership; (2) he could not state an unjust enrichment
claim because a contract governed the parties' relationship; and
(3) his Colorado Consumer Protection Act ("CCPA") claim failed
because he did not allege any deceptive trade practice, as well as
that CCPA claims cannot be brought on a class-wide basis.

The Magistrate Judge recommended granting Probiller's Motion to
Dismiss to the extent it sought dismissal of Mr. Vandiver's breach
of contract claim "based on a theory that the CTC prohibited
Probiller" from charging Mr. Vandiver for more than one membership
and on the theory that Probiller violated the duty of good faith
and fair dealing, but recommended denying the Motion insofar as
Probiller sought dismissal based on the theory the CTC did not
permit Probiller to continue charging Mr. Vandiver after he
cancelled his membership. The Magistrate Judge recommended denying
dismissal of the unjust enrichment claim. Further, the Magistrate
Judge recommended denying Probiller's Motion insofar as it sought
dismissal of Mr. Vandiver's individual CCPA claim, but recommended
granting dismissal of his class-wide CCPA claim.

Mr. Vandiver timely filed his Objection to the Magistrate Judge's
Recommendation. Probiller timely filed its Response.

Judge Sweeney has reviewed the Complaint, the Magistrate Judge's
Recommendation, Mr. Vandiver's Objection, Probiller's Response, and
the relevant legal authority. He addresses the arguments in Mr.
Vandiver's Objection in turn, sustaining the Objection in part and
overruling the Objection in part.

First, Mr. Vandiver argues the Magistrate Judge erred in
recommending his breach of contract claim be dismissed to the
extent the claim is premised on Probiller allegedly charging him
for more than one Brazzers membership. The Magistrate Judge erred,
Mr. Vandiver contends, because she did not properly apply the
elements for a breach of contract claim. Probiller urges affirmance
on the grounds that the Magistrate Judge correctly understood Mr.
Vandiver's claim and the governing law.

Judge Sweeney agrees with Mr. Vandiver. As Mr. Vandiver argues,
Probiller allegedly breached the parties' agreement by charging
more than the cost of the two-day trial membership he selected. As
such, Mr. Vandiver argues has identified a "specific provision" in
the parties' agreement -- the price of membership -- that Probiller
breached by allegedly charging him for two memberships. Construing
the Complaint's allegations in the light most favorable to Mr.
Vandiver, the Magistrate Judge erred in recommending dismissal of
Mr. Vandiver's breach of contract claim based on this theory.

Next, Mr. Vandiver argues the Magistrate Judge erred in
recommending that his class-wide CCPA claim be dismissed because
the CCPA permits plaintiffs to bring claims on a class-wide basis.
Probiller contends the Magistrate Judge correctly dismissed Mr.
Vandiver's class-wide CCPA claim because the CCPA precludes class
action claims.

Judge Sweeney agrees with Probiller. Numerous courts have concluded
the CCPA precludes private class-wide claims. Moreover -- and
contrary to Mr. Vandiver's contention -- the Magistrate Judge
properly applied Justice Steven's concurrence in Shady Grove
Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 416
(2010), which the Tenth Circuit had adopted in determining whether
a federal rule or state law controls. Mr. Vandiver's citation to
other cases fails to persuade otherwise. Accordingly, the
Magistrate Judge did not err in recommending dismissal of Mr.
Vandiver's class-wide CCPA claim.

Consistent with her analysis, Judge Sweeney sustains in part and
overruled in part Mr. Vandiver's Objection to the Magistrate
Judge's Recommendation. Therefore, the Magistrate Judge's
Recommendation is affirmed in part, denied in part, and adopted in
part. Accordingly, Probiller's Motion to Dismiss is granted in part
and denied in part.

A full-text copy of the Court's Oct. 4, 2022 Order is available at
https://tinyurl.com/3xmm6a2p from Leagle.com.


MONTANA SKY: Court Denies Bid for Summary Judgment in Guy Suit
--------------------------------------------------------------
In the lawsuit entitled DOROTHY GUY, et al., Plaintiffs v. MONTANA
SKY, LLC, et al., Defendants, Case No. 2:21-cv-00381 (S.D.W. Va.),
Judge Joseph R. Goodwin of the U.S. District Court for the Southern
District of West Virginia, Charleston Division, denies the motion
for summary judgment filed by Defendants Montana Sky, LLC, and Rock
Wilson.

Plaintiffs Dorothy Guy and her daughter Cristal Miller brought the
lawsuit after the Defendants allegedly deprived them of title to
their real property through a tax sale without giving the
Plaintiffs notice of their right to redeem. The subject property is
a 39-acre residential parcel located in Griffithsville, Lincoln
County, West Virginia. In 2004, Ms. Guy deeded Ms. Miller--whose
name at the time was Cristal Graham--a remainder interest in the
property, reserving a life estate interest for herself.

Ms. Guy has a homestead exemption on the property, which she
believed alleviated her from paying any taxes on it. However, in
2017, the Lincoln County Sheriff assessed $7.24 in taxes on the
property. The Plaintiffs allege they never received notice of the
assessment, so the taxes went unpaid and became delinquent.

Accordingly, on Oct. 26, 2018, the Lincoln County Sheriff sold a
tax lien on the property to Defendant Montana Sky, LLC, for $300.
The Plaintiffs allege that Rock Wilson is the incorporator and
principal of Montana Sky, and it is undisputed that he performed
certain functions attendant to the tax lien purchase and subsequent
deed transfer.

On Oct. 15, 2019, Mr. Wilson, as manager of Mountain State Land
Title Company, PLLC, conducted a title examination and issued a
report to the Deputy Commissioner of Delinquent and Nonentered
Lands of Lincoln County, West Virginia, G. Russell Rollyson, Jr.
The report identified Ms. Guy and Ms. Miller as being entitled to
be served with notice of the right to redeem and provided addresses
to which to send the notice. However, Mr. Wilson erroneously
identified Ms. Guy and Ms. Miller as joint tenants with the right
of survivorship.

Additionally, neither Ms. Guy nor Ms. Miller resided at either of
the addresses Mr. Wilson provided, and they allege that notice was
not mailed in Ms. Guy's name or to the current address of the
property at issue. Consequently, although Mr. Rollyson mailed out
the notices of right to redeem, neither Ms. Guy nor Ms. Miller ever
received them, and they were all returned marked "return to
sender."

On Feb. 7, 2020, Mr. Rollyson informed Montana Sky that the notices
went unclaimed and directed it to pay for personal service of the
notices. Thereafter, Mr. Rollyson hired a process server,
DocuServe, to deliver Ms. Guy and Ms. Miller their notice of the
right to redeem, which gave them until April 20, 2020, to redeem.
However, he provided DocuServe with the same information that
previously resulted in the notices being undelivered and marked
"return to sender." As a result, notice was posted at two addresses
where neither individual entitled to receive notice of the right to
redeem resided, and notice was not posted at the address of the
property at issue.

Subsequently, Mr. Wilson presented Mr. Rollyson with the
undelivered notices and DocuServe's affidavits of service, seeking
title of the property. On April 1, 2020, Mr. Rollyson signed a tax
deed granting title to Montana Sky, which was recorded by the
Lincoln County Clerk on July 7, 2020.

The Plaintiffs claim that they only learned of the preceding events
when agents of Montana Sky arrived on the property at issue in late
July 2020 and informed Ms. Guy that they had purchased it. The
Plaintiffs then retained counsel and wrote to Montana Sky and Mr.
Wilson asserting that the "tax deed is legally invalid because
neither Ms. Guy nor Ms. Miller received adequate notice of their
right to redeem the property." The Plaintiffs offered to resolve
their potential claims by reimbursing Montana Sky of its expenses
incurred in acquiring the tax deed, in exchange for Montana Sky
signing a quitclaim deed that acknowledged the invalidity of the
tax deed and restored record title to the Plaintiffs.

Receiving no response from Montana Sky or Rock Wilson, on July 2,
2021, the Plaintiffs filed a class action complaint pursuant to
Federal Rule of Civil Procedure 23(b)(2) and (b)(3) against Montana
Sky, Mr. Wilson, and Mr. Rollyson, claiming violations of 42 U.S.C.
Section 1983 for deprivation of property without due process of law
(Count I) and violations of West Virginia Code Sections 11A-3-54,
-55 (Count II).

Ms. Guy and Ms. Miller, the named Plaintiffs, also brought
individual claims for violation of 42 U.S.C. Section 1983 (Count
III), slander to title (Count IV), and violation of West Virginia
Code Sections 11A-3-54, -55 (Count V). The Plaintiffs claim that
all the Defendants worked in concert, "invoking state power to
deprive the Plaintiffs of property without due process of law," by
proceeding with real property tax sales in which the original
property owners had not received legally required notice of their
right to redeem.

Ms. Guy passed away on Aug. 26, 2021, and counsel filed a notice of
her death on the docket on Nov. 15, 2021. On Oct. 21, 2021, Montana
Sky drafted a quitclaim deed conveying a life estate to the
property to Ms. Guy, with a remainder interest to "Cristal
Graham"--Ms. Miller's former name--because it was "inadvertently
conveyed to the Grantor by G. Russell Rollyson Jr.," and upon
further review, not all of the interested parties were served with
a notice of the redemption and, as a result, the tax deed is void
ab initio. The deed was recorded by the Lincoln County Clerk on
Nov. 29, 2021. Ms. Miller states that she did not learn about the
quitclaim deed until late February 2022, when the Defendants
responded to her discovery requests.

Ms. Miller alleges that after Montana Sky obtained title to the
property in April 2020, it did not pay real estate taxes, and the
Lincoln County Sherriff sold another tax lien for the property on
Oct. 23, 2020. The tax lien purchaser issued a notice of the right
to redeem, which Ms. Miller received in February 2022, that
required her to pay $2,240.38 to redeem the property by March 31,
2022. Ms. Miller states that she paid $2,240.38 to redeem the
property.

Defendants Montana Sky and Mr. Wilson moved for summary judgment.
Their sole argument in support of summary judgment is that because
they executed a quitclaim deed conveying the property back to the
Plaintiffs, the Plaintiffs' damages attributable to them are
extinguished, and thus, the Plaintiffs fail to state a claim upon
which relief can be granted.

In response, as to the alleged violations of Section 1983, Ms.
Miller argues that if she prevailed on her claim, she would be
entitled to compensatory and punitive damages, attorneys' fees, and
declaratory relief. As to Count IV, she argues if she demonstrates
all the elements of the claim of Slander of Title, she would be
entitled to compensatory, punitive damages and attorneys' fees
incurred to remove the cloud on her title. Finally, as to violation
of West Virginia Code Sections 11A-3-54, -55, the Plaintiff argues
that if the claim is successful, she would be entitled to an order
from the Court setting aside the April 1, 2020 tax deed because it
is not clear whether the Defendants' Quitclaim Deed is sufficient
to remove the cloud on title.

The Defendants argue that they are entitled to judgment as a matter
of law because the Plaintiffs' alleged damage has been
extinguished, and in cases where a court finds that there are no
actual damages, dismissal is appropriate. They do not argue that
Ms. Miller's claims are insufficient in any other respect. As such,
Judge Goodwin only examines whether the damages available to Ms.
Miller under her claims have been extinguished by the execution of
the quitclaim deed, such that the claims should be dismissed.

When viewing the evidence in the light most favorable to Ms.
Miller--the nonmoving party--at least one measure of damages
remains available to her under each claim should she prevail, Judge
Goodwin finds. Thus, Mr. Wilson and Montana Sky's motion for
summary judgment is denied.

Ms. Miller claims that Mr. Wilson and Montana Sky violated 42
U.S.C. Section 1983 by depriving her of real property without due
process of law, and she argues that the quitclaim deed executed by
Defendants did not extinguish her claim. Judge Goodwin agrees.

If Ms. Miller's federal rights were violated as she claims, she is
entitled to a recognition of that violation, even if she suffered
no actual injury, Judge Goodwin notes. Moreover, Ms. Miller has
shown that the Defendants were the record titleholders of her
property from April 2020 until October 2021 and that she paid
$2,240.38 to redeem the property, which could be compensable
through her Section 1983 action. Thus, the Defendants' execution of
the quitclaim deed transferring the property back to Ms. Miller
does not defeat her Section 1983 claim.

Ms. Miller pleads a claim for slander of title against Mr. Wilson
and Montana Sky. Attorneys' fees are not ordinarily considered
damages, but the Supreme Court of Appeals of West Virginia has held
that "attorneys' fees incurred in removing spurious clouds from a
title qualify as special damages in an action for slander of
title," Judge Goodwin notes. Moreover, the Supreme Court of the
United States has acknowledged that punitive damages are available
in slander of title cases.

Thus, the execution of a quitclaim deed is not dispositive to Ms.
Miller's slander of title claim because her attorneys' fees for
litigating the instant action would satisfy the special damages
element and she may recover punitive damages, Judge Goodwin holds.

West Virginia law requires tax lien purchasers, through the deputy
commissioner, to notify individuals of their right to redeem
property before title is transferred. The law provides that a
person may "institute a civil action to set aside the deed" if they
were entitled to receive notice of their right to redeem but were
not properly served with notice through the requisite statutory
process. As such, Ms. Miller argues that the relief she is entitled
to if she prevails on this claim is an order from the Court setting
aside the April 1, 2020 tax deed. Judge Goodwin agrees.

Judge Goodwin explains, an order from the court declaring the tax
deed null and void is different from any relief provided by the
Defendants' quitclaim deed because, as noted by Ms. Miller, it is
unclear whether the Quitclaim Deed, which purports to convey a life
interest to a deceased person, does not use Ms. Miller's current
name, and which does not warrant title, would be sufficient to
clear the cloud on title. Especially when considering these
deficiencies, the quitclaim deed is not a substitute for a court
order setting aside the tax deed, which is the relief called for by
statute should Ms. Miller prevail on her claim. The Defendants'
motion is-, accordingly, denied.

Because Ms. Miller could be entitled to additional measures of
damages under her claims as pleaded, Judge Goodwin finds the
Defendants are not entitled to judgment as a matter of law on that
basis, and their motion is denied. The Court directs the Clerk to
send a copy of this Order to counsel of record and any
unrepresented party.

A full-text copy of the Court's Memorandum Opinion and Order dated
Sept. 22, 2022, is available at https://tinyurl.com/579t4v22 from
Leagle.com.


MUSHRUSH UTILITY: Conner Seeks Proper Overtime Wages
----------------------------------------------------
DAVID CONNER, on behalf of himself and others similarly situated,
Plaintiff v. MUSHRUSH UTILITY CONTRACTING, INC., Defendant, Case
No. 5:22-cv-01759 (N.D. Ohio, Oct. 3, 2022) challenges Defendant's
policies and practices that violate the Fair Labor Standards Act as
well as the Ohio overtime compensation statute.

According to the complaint, the Plaintiff and others similarly
situated were employed by Defendant as non-exempt employees who
were paid on an hourly basis. They were not paid overtime
compensation for all of the hours they worked in excess of 40 each
workweek. The unpaid overtime compensation to which Plaintiff and
other similarly situated employees are entitled to has remained
unpaid, says the suit.

Mushrush Utility Contracting, Inc. provides contracting services,
such as gas line installation and repair, to utilities.[BN]

The Plaintiff is represented by:

          Jeffrey J. Moyle, Esq.
          1360 E. 9th Street, Suite 808
          Cleveland, OH 44114
          Telephone: (216) 230-2955
          Facsimile: (330) 754-1430
          E-mail: jmoyle@ohlaborlaw.com

               - and -

          Hans A. Nilges, Esq.
          7034 Braucher Street, N.W., Suite B
          North Canton, OH 44720
          Telephone: (330) 470-4428
          Facsimile: (330) 754-1430
          E-mail: hans@ohlaborlaw.com

PALO ALTO, CA: Faces Class Action Over Utility Bills' Illegal Tax
-----------------------------------------------------------------
Elaine Goodman at Daily Post reports that should the city of Palo
Alto be able to take money it receives from customers paying their
utility bills and use the funds to pay for other city services,
such as police or libraries?

That's a question that Palo Altans will answer when they vote on
Measure L on the Nov. 8 ballot.

The city, which runs its own utilities, uses the money from
customer bills to cover the costs of providing the utility service.
But the amount from bill payments is sometimes more than the amount
the city needs to cover its costs.

So the city transfers some of the surplus into the city's general
fund, which pays for things such as roads, parks, libraries, and
the police and fire departments.

The city has been doing this for years. In the case of the city's
natural gas utility, about $7 million is transferred each year to
the general fund to pay for the other services.

But a lawsuit filed against the city in 2016 has called the
practice into question. Palo Alto resident Miriam Green sued the
city, saying that the city was charging an illegal tax through its
utility bills because it was collecting more than the cost to
provide the utility service. The city would need voter approval to
collect the additional funds, the lawsuit claimed.

The lawsuit, which became a class-action case, produced two
results. A Santa Clara County Superior Court judge ordered the city
to refund $12.6 million to natural gas customers whom the court
said had been overcharged.

                            Settlement

The two sides took the decision to California's Sixth District
Court of Appeal. But last month, they reached a settlement in which
the city will pay $17.3 million to natural gas customers and
Green's lawyers.

The second result of the Green case is that the city placed Measure
L on the ballot to see whether voters approve of transferring funds
from the natural gas utility to the general fund to pay for general
city services.

The measure would approve the city's transfer to the general fund
of up to 18% of its natural gas utility revenue, starting in 2023.
This measure needs majority approval from voters to pass.

If voters reject Measure L, the general fund will no longer receive
the approximately $7 million a year from the natural gas utility.

"If this measure is not approved, the city will lose a key funding
source for basic services and reductions will be required,"
proponents said in their argument in favor of Measure L.

In addition, because the city's natural gas rates already include
the cost of the transfer, approval of Measure L won't increase gas
bills, supporters said.

                           Opposition

Measure L opponents said mixing funds collected for two different
purposes is a bad practice.

"Even though this is a long-standing practice in the case of gas
service in Palo Alto, that doesn't make it a good idea," opponents
said in their ballot argument against Measure L. The opposition
ballot argument was signed by Joe Dehn, chair of the Libertarian
Party of Santa Clara County, and Palo Alto resident Alan Kaiser.

The city has argued that voters approved the transfer of utility
money to the general fund in 1950. In addition, the transfer is a
way for the city to get a return on its investment into the utility
system, the city said.

In his decision in Miriam Green's case, Superior Court Judge Brian
Walsh wasn't convinced by those arguments. The city has raised its
utility rates several times since Proposition 26 passed in
California in 2010, he noted. Prop 26 says that if a government fee
is more than the amount needed to cover reasonable costs of the
government service, that fee is actually a tax, requiring voter
approval.

"To the extent the GFT (Palo Alto's general fund transfer) is
passed on to ratepayers, it is a tax," Walsh wrote in his
decision.

A Committee in Support of Measure L has raised $6,514 and spent
$1,265, according to a campaign finance document filed with the
city of Palo Alto. The filing covers activity through Sept. 24.

Among those who contributed to the Measure L campaign are council
members Eric Filseth, who gave $500, and Alison Cormack, who
donated $515.

Lisa Forssell, a member of the city's Utilities Advisory Commission
who is running for City Council, donated $258 to support Measure
L.

City records show that no committee has been formed to oppose
Measure L. [GN]

PAPA JOHN'S: Kauffman Files Suit for Breach of Wiretap Act
-----------------------------------------------------------
DAVID KAUFFMAN, individually and on behalf of others similarly
situated, Plaintiff v. PAPA JOHN'S INTERNATIONAL, INC., Defendant,
Case No. 3:22-cv-01492-BEN-MSB (S.D. Cal., Oct. 3, 2022) arises
from the Defendant's violations of the Federal Wiretap Act and the
California Invasion of Privacy Act, in relation to the unauthorized
interception, collection, recording, and dissemination of
Plaintiff's and Class Members' communications and data.

This case stems from Defendant's alleged unauthorized interception
and connection to Plaintiff's and Class Members' electronic
communications through the use of "session replay" spyware that
allowed Defendant to read, learn the contents of, and make reports
on Plaintiff's and Class Members' interactions on Defendant's
website. The Defendant made these unauthorized interceptions and
connections without the knowledge or prior consent of Plaintiff or
Class Members, says the suit.

The Plaintiff and Class Members did not have a reasonable
opportunity to discover Defendant's alleged unlawful and
unauthorized connections because Defendant did not disclose its
actions nor seek consent from Plaintiff or Class Members prior to
making the unauthorized connections to the electronic
communications through the "session replay" spyware, the suit
asserts.

Papa John's International, Inc. is an American pizza restaurant
chain that owns and operates the website, www.papajohns.com.[BN]

The Plaintiff is represented by:

          Joshua B. Swigart, Esq.
          SWIGART LAW GROUP, APC
          2221 Camino del Rio S, Ste 308
          San Diego, CA 92108
          Telephone: (866) 219-3343
          E-mail: Josh@SwigartLawGroup.com

               - and -

          Daniel G. Shay, Esq.
          LAW OFFICE OF DANIEL G. SHAY
          2221 Camino del Rio S, Ste 308
          San Diego, CA 92108
          Telephone: (619) 222-7429
          E-mail: DanielShay@TCPAFDCPA.com

POSHMARK INC: M&A Probes Possible Securities Class Action Suit
--------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating:

Poshmark, Inc. (POSH), relating to its proposed acquisition by
NAVER Corp. Under the terms of the agreement, POSH shareholders
will receive $17.90 in cash per share they own. Click here for more
information: https://www.monteverdelaw.com/case/poshmark-inc. It is
free and there is no cost or obligation to you.

               About Monteverde & Associates PC

We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers in 2013 and 2017-2019 as a Rising Star
and in 2022 as a Super Lawyer in Securities Litigation. He has also
been selected by Martindale-Hubbell as a 2017-2021 Top Rated
Lawyer. Our firm's recent successes include changing the law in a
significant victory that lowered the standard of liability under
Section 14(e) of the Exchange Act in the Ninth Circuit. Thereafter,
our firm successfully preserved this victory by obtaining dismissal
of a writ of certiorari as improvidently granted at the United
States Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407
(2019). Also, we have recovered or secured a dozen cash common
funds for shareholders in mergers & acquisitions class action
cases.

If you own common stock in any of the above listed companies and
wish to obtain additional information and protect your investments
free of charge, please visit our website or contact Juan E.
Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com
or by telephone at (212) 971-1341. [GN]

PRIMESOURCE BUILDING: Remand of Hodgens Suit to State Court Denied
------------------------------------------------------------------
In the case, Ricky Hodgens, Plaintiffs v. PrimeSource Building
Products, et al., Defendants, Case No. 2:21-cv-00716-KJM-JDP (E.D.
Cal.), Chief District Judge Kimberly J. Mueller of the U.S.
District Court for the Eastern District of California denies
without prejudice the parties' request to remand the action to the
state court and to revert the action to the present Court if the
state court does not approve their settlement agreement.

More than a year ago, PrimeSource removed the action to the Court
based on its allegation that the Court has jurisdiction under the
Class Action Fairness Act. The parties recently reported that they
have reached an agreement to settle the case and a related case
currently pending in California Superior Court. They "agree that it
would be proper" to remand the action to the state court "for
purposes of seeking a single settlement approval." They also ask
the Court to order that if the state court does not approve their
settlement agreement, then the action will "revert" to the Court.

Judge Mueller finds that the parties cite no authority under which
a federal district court may remand an action, removed long ago,
over which the district court has subject matter jurisdiction. Nor
do they cite authority showing a federal district court may retain
jurisdiction over a remanded action conditionally or partially such
that the action may "revert" to federal court.

For these reasons, Judge Mueller denies the parties' stipulated
request without prejudice to renewal with authority, if any exists,
showing the Court may remand the action conditionally as
stipulated.

A full-text copy of the Court's Oct. 4, 2022 Order is available at
https://tinyurl.com/2p84hk7z from Leagle.com.


RYANAIR HOLDINGS: Birmingham Can't Amend Complaint, Court Rules
---------------------------------------------------------------
Judge J. Paul Oetken of the U.S. District Court for the Southern
District of New York denies the Lead Plaintiff's motion to further
amend its complaint in the lawsuit captioned CITY OF BIRMINGHAM
FIREMEN'S AND POLICEMEN'S SUPPLEMENTAL PENSION SYSTEM, Plaintiff v.
RYANAIR HOLDINGS PLC, et al., Defendants, Case No. 18-CV-10330
(JPO) (S.D.N.Y.).

In this putative securities class action, Lead Plaintiff City of
Birmingham Firemen's and Policemen's Supplemental Pension System
sues Ryanair Holdings plc and Ryanair CEO Michael O'Leary under
Section 10(b) and Section 20(a) of the Securities Exchange Act of
1934 ("Exchange Act"), and Rule 10b-5 promulgated thereunder. The
Court previously dismissed the first amended complaint in part for
failure to state a claim. The Lead Plaintiff moves to further amend
the complaint.

Judge Oetken holds that denial is appropriate because the motion
for leave to amend imposes undue prejudice, evinces bad faith, and
would be futile.

Judge Oetken explains that granting leave here would require the
Defendants to expend significant additional resources to conduct
discovery and significantly delay the resolution of the disputes in
this matter. First, granting leave would negate prior work, waste
prior efforts, and largely send the parties back to the discovery
drawing board. Second, granting leave to amend would effectively
overrule the Court's rulings, excluding a host of topics from the
scope of permitted discovery.

In addition, the Lead Plaintiff's motion for leave to amend evinces
bad faith, Judge Oetken holds. Bad faith exists where counsel
conveyed a misleading impression that claims were fixed, Judge
Oetken says, citing In re Int. Rate Swaps Antitrust Litig., No.
16-MC-2704, 2018 WL 2332069, at *19. That is the case here, Judge
Oetken states. For almost a year, in the operative case management
and scheduling orders, the Lead Plaintiff has consistently stated
that it did "not intend to amend the operative complaint pursuant
to the Court's June 1, 2020 Order."

Lastly, to the extent that Lead Plaintiff seeks to revive
previously dismissed claims, the proposed second amended complaint
is futile, Judge Oetken holds. The proposed second amended
complaint asserts that the Defendants violated Section 10(b) of the
Exchange Act. It further asserts that the Defendants violated
Section 20(a) of the Exchange Act, as controlling persons of
Ryanair. The proposed amendment attempts to revive claims relating
to statements concerning Ryanair's labor relations in general;
Ryanair's profitability; and Ryanair's ability to meet its growth
targets.

Judge Oetken also holds that the proposed amendments still would
not withstand a motion to dismiss. Even assuming that the Lead
Plaintiff has now adequately pleaded falsity and materiality, as
before, the proposed amendments still do not adequately allege
scienter. Judge Oetken adds, among other things, that the proposed
second amended complaint still does not adequately allege that
Defendants had a "motive and opportunity" to commit fraud.

Therefore, the Lead Plaintiff's motion for leave to further amend
the complaint is denied.

The parties are directed to file a joint letter addressing the
status of discovery and proposed next steps within 14 days after
the date of this opinion and order.

A full-text copy of the Court's Opinion and Order dated Sept. 22,
2022, is available at https://tinyurl.com/2p9km432 from
Leagle.com.


SAC ADVISORY: Nanya Suit Dismissed Over Lack of Jurisdiction Issue
------------------------------------------------------------------
In the case, SAC ADVISORY GROUP, LLC, et al., Petitioners v. KAZVO
NANYA, Respondent, Case No. 22-cv-04327-JSC (N.D. Cal.), Judge
Jacqueline Scott Corley of the U.S. District Court for the Northern
District of California dismisses the action for lack of subject
matter jurisdiction.

Petitioners SAC Advisory Group, LLC, Fortune Film Fund I, LLC,
Fortune Film Fund II, LLC, Jeffrey Spiegel, Ryan Spiegel and
Spiegel Accountancy Corp. filed a petition to compel individual
arbitration against Mr. Nanya. Mr. Nanya was one of several
investors in a series of funds operated by the Petitioners.
Pursuant to an arbitration clause in the parties' operating
agreement, Mr. Nanya initiated arbitration proceedings through the
American Arbitration Association against Petitioners on an
individual and class basis. Another investor, Jocelyn Carter, who
likewise invested money through the Petitioners, previously filed a
civil case against Petitioners alleging claims for securities
fraud, negligent misrepresentation, and unjust enrichment arising
out of the same factual predicate -- Carter v. Spiegel, No.
21-3990, Dkt. No. 1 (N.D. Cal. May 26, 2021).

The court there granted the Petitioners' motion to compel
arbitration of Ms. Carter's claims based on the same arbitration
agreement at issue. In doing so, it found that Ms. Carter could
only proceed on her claims on an individual, not class basis
because the arbitration agreement was silent as to class actions.

Six months after that order, the same counsel who represented Ms.
Carter filed the at-issue arbitration claim with the American
Arbitration Association on behalf of Mr. Nanya on an individual and
class basis. Two weeks later, the Petitioners filed this petition
to compel arbitration seeking an order that Ms. Nanya's arbitration
claim proceed on an individual basis only. They thereafter filed a
motion to compel arbitration, and after an arbitrator was appointed
on Aug. 31, 2022, a motion for a temporary restraining order
seeking the same relief which the Court denied.

Because the Petitioners had not identified an independent basis for
federal jurisdiction, the Court ordered them to show cause as to
how it had jurisdiction over their petition. In response, the
Petitioners argue that the Court has "ancillary" jurisdiction over
the petition because the Respondent and his counsel are "in clear
violation of the Order issued by the Court in the related Carter
matter."

Judge Corley holds that this is not how ancillary jurisdiction
works. She says ancillary jurisdiction may extend to claims having
a factual and logical dependence on the primary lawsuit, but that
primary lawsuit must contain an independent basis for federal
jurisdiction. The court must have jurisdiction over a case or
controversy before it may assert jurisdiction over ancillary
claims.

The Petitioners appear to argue that because the court in the
Carter action had subject matter jurisdiction under the Class
Action Fairness Act, 28 U.S.C. Section 1332(d), this Court likewise
has subject matter jurisdiction to enforce an order entered in the
Carter action against a different plaintiff. Not so, Judge Corley
holds. The Petitioners bring a petition to compel arbitration --
not a motion in the Carter action requesting relief with respect to
that court's order. They must have an independent basis for this
Court's subject matter jurisdiction over this petition to compel
arbitration. The Petitioners have not identified any independent
basis for this Court's jurisdiction.

Accordingly, Judge Corley finds that subject matter jurisdiction is
lacking and dismisses the action.

The Clerk will close the action.

A full-text copy of the Court's Sept. 30, 2022 Order is available
at https://tinyurl.com/mr2m3xf5 from Leagle.com.


SENTARA RMH: Faces Class Suit for Improper Medical Services Billing
-------------------------------------------------------------------
vKellen Stepler, writing for Daily News-Record, reports that a
Harrisonburg man is accusing Sentara RMH Medical Center of engaging
in a racketeering scheme by improperly billing for medical
services, resulting in an overcharge.

Michael J. Swartzendruber filed the federal class-action lawsuit in
U.S. District Court for the Western District of Virginia in
Harrisonburg.

A Sentara spokesperson said the Norfolk-based health care provider
does not comment on pending litigation.

In the complaint, Swartzendruber alleges "systematic overcharging"
for medical services provided by RMH Medical Group to people who
have insurance through United Healthcare Insurance Co. Sentara RMH
Medical Center, RMH Medical Group LLC, United Healthcare Insurance
Co. and United Healthcare of the Mid-Atlantic Inc. are named as
defendants.

"Instead of billing those services as provided by RMH Medical
Group, LLC at its many outpatient centers, Sentara RMH Medical
Center bills them as if they were provided at the main Sentara RMH
hospital," which results in an overcharge, the complaint states. It
also states that the United Healthcare Insurance Co. does not
correct the bills.

The claims also include that the defendants violated the federal
Racketeer Influenced and Corrupt Organizations Act, the Employee
Retirement Income Security Act of 1974 and the Virginia Consumer
Protection Act.

The lawsuit alleges that when some medical services are performed
at RMH Medical outpatient centers to individuals insured by United
Healthcare, Sentara bills those services as though they were
performed at the main hospital.

"United Healthcare then processes those services under the agreed
rates for care provided at the main hospital by Sentara, rather
than the lower agreed rate for services provided by RMH Medical at
the outpatient centers," the lawsuit states. "The result is that
people are overcharged for the medical services they receive at the
outpatient centers."

Swartzendruber alleges he was overcharged for services at the
Sentara East Market Street Health Center. In 2019, he had bloodwork
done at the outpatient location and alleges that Sentara reported
to United Healthcare that the services were performed at the main
hospital.

The lawsuit states that Sentara billed Swartzendruber $152.64 for
the bloodwork -- far greater than the rate if the medical services
had been billed as provided at the East Market Street location, the
suit alleges.

Sentara insisted to Swartzendruber that the amount charged was
correct, the lawsuit states. Swartzendruber objected and tried to
have United Healthcare require Sentara to lower it, but the cost
remained the same.

The lawsuit states that because Swartzendruber had not yet
satisfied his deductible with United Healthcare, he was billed for
this amount, and he paid it to keep the charge from harming his
credit score.

Before he paid the charge, the lawsuit alleges, Swartzendruber
repeatedly contacted United Healthcare, cited its website for the
estimated charge at an outpatient location, and asked United
Healthcare to provide the details about how Sentara billed the
services, "because he reasonably thought some mistake had occurred
in how Sentara had billed it."

United Healthcare told Swartzendruber it had processed his claim
properly, the lawsuit states. Swartzendruber also asked Sentara to
provide specific details of how it billed the services, but Sentara
never responded.

The lawsuit states that Swartzendruber filed an action against
Sentara in general district court regarding the overbilling, and
Sentara insisted that the services were billed correctly. In court,
Sentara said "only one contract with a set of negotiated rates
existed with United Healthcare that covered services whether they
were provided at the Sentara RMH main hospital or at any of the
related outpatient centers," the lawsuit states.

Relying on that statement, Swartzendruber dropped his case against
Sentara, and then filed a general district court charge against
United Healthcare for displaying lower amounts for medical services
at the Sentara East Market Health Center than he would actually be
charged, the lawsuit states.

"In that lawsuit, United Healthcare ultimately provided a
declaration that stated in pertinent part: ‘[t]here are two
contracts between United and Sentara that are relevant to this case
for Sentara RMH East Market Health Center, the outpatient center,
and one for Sentara RMH Medical Center, a health center,'" the
lawsuit alleges.

Because Swartzendruber did not bring an Employee Retirement Income
Security Act claim and his claims were based on the proven false
premise that only one contract existed, Swartzendruber dropped the
suit against United Healthcare, the lawsuit said.

The lawsuit also cites a similar incident in 2021, where the
defendants overcharged Swartzendruber for medical services at the
Sentara South Main Health Center.

Swartzendruber's lawsuit seeks for United Healthcare and Sentara to
stop processing outpatient center medical bills as if they were
charged at Sentara RMH Medical Center.

He also wants the defendants to recalculate the charges for
services provided the outpatient center and give the plaintiffs
back the amount they were overcharged.

He asks the court to award treble the damages under federal and
state code, and for attorney's fees and costs under the federal
Racketeer Influenced and Corrupt Organizations Act, Employee
Retirement Income Security Act of 1974 and the Virginia Consumer
Protection Act. [GN]

SNOW COSMETICS: New York Court Tosses False Ads Class Action
------------------------------------------------------------
Aegis Dental Network reports that in a major victory for Snow
Cosmetics LLC, with implications for advertising and sponsorship
agreements and consumer class actions generally, a New York federal
court dismissed in full a lawsuit targeting the start-up
teeth-whitening company for supposedly misleading advertising.

This initial suit also named Snow's celebrity endorsers, NFL star
receiver Rob Gronkowski and Boxing Champion Floyd Mayweather, in a
bid to generate as much press coverage as possible. Both have since
been dismissed from the suit.

BraunHagey & Borden represented Snow in the lawsuit, with partner
Douglas Curran serving as lead counsel.

The court ruled that the plaintiff did not have standing to bring
the claims because he could not show that he had ever actually
relied on any of the supposedly false ads. The court also called
the decision to bring the lawsuit troubling, and strongly implied
that the plaintiff's attorneys never had any good-faith basis for
it.

The suit, filed in the Eastern District of New York, claimed that
Snow's flagship product, a whitening system that incorporates an
LED light in a mouthpiece, was ineffective and purchased based on
misleading advertising. However, at deposition, the Plaintiff
admitted that he made his purchase only after his lawyers, one of
whom is a longtime friend and neighbor of the named plaintiff, had
already drafted the complaint and sent a demand letter to Snow
seeking a multimillion-dollar settlement.

The plaintiff also admitted in his deposition that he could not
recall actually seeing, much less relying on, any of the allegedly
misleading advertising that formed the basis of the lawsuit. The
judge also noted in the decision that the plaintiff admitted that
he didn't think he could pick out Mayweather by sight.

In dismissing the case, the court noted:

"Given . . . the strong circumstantial evidence Defendants have
presented suggesting that Plaintiff only purchased the product in
order to generate this lawsuit, the complete lack of any connection
between the Plaintiff's testimony and the allegations in the
Complaint is even more troubling. This is particularly true since
the Complaint appears to have been drafted before Plaintiff
purchased the product and seemingly without any attempt to conform
the allegations in the Complaint to Plaintiff's actual experience."
[GN]

STATE FARM: Class Settlement in Arnold Suit Wins Final Approval
---------------------------------------------------------------
In the case, ANNIE ARNOLD, individually, and on behalf of all
others similarly situated, Plaintiff v. STATE FARM FIRE AND
CASUALTY COMPANY, Defendant, Civ. Act. No. 2:17-cv-148-TFM-C (S.D.
Ala.), Judge Terry F. Moorer of the U.S. District Court for the
Southern District of Alabama, Northern Division, enters a
Memorandum Opinion and Order:

   a. granting the Plaintiffs' Unopposed Motion for Final
      Approval of Class Settlement as modified;

   b. denying the Class Counsel's request for service awards for
      the Named Plaintiff and the Additional Class
      Representatives;

   c. granting in part and denying in part the Class Counsel's
      Motion for Attorneys' Fees and Litigation Costs and Request
      for Service Awards.

Before the Court is the Plaintiffs' Unopposed Motion for Final
Approval accompanied by the brief in support and evidentiary
support. Also before the Court is the Class Counsel's Motion for
Attorneys' Fees, Litigation Costs, and Request for Service Awards
pursuant to Federal Rule of Civil Procedure 23(e)(2).

Named Plaintiff Arnold, Additional Class Representatives Bobby
Abney, Tina Daniel, and Kenneth Scruggs, individually and on behalf
of themselves and the Class, and Defendant State Farm, have agreed,
subject to Court approval, to settle the litigation pursuant to the
terms and conditions stated in the Stipulation of Settlement filed
with the Court on Feb. 9, 2022.

On April 25, 2022, the Court granted preliminary approval of the
Agreement pursuant to Rule 23(e)(1)(B). Class Notice was issued in
accordance with the preliminary approval order, and on Sept. 23,
2022, the Court held a final approval hearing on the motions.

Arnold initiated the action on March 8, 2017, asserting a single
claim for breach of contract on behalf of herself and a putative
class of State Farm policyholders who made structural damage
insurance claims for damage to Alabama properties. State Farm
timely removed the action to the Court on April 7, 2017. Arnold
claims that State Farm improperly applied depreciation to the
estimated cost of labor and other non-material costs necessary to
complete repairs to insured property when it calculated and issued
actual cash value ("ACV") claim payments to her and other class
members for structural damage losses incurred under their property
insurance policies. State Farm has denied, and still denies, any
liability, wrongdoing, and damages with respect to the matters
alleged in the Complaint.

After litigation between the Parties and arms-length negotiations
between the Class Counsel and State Farm's counsel, the Parties
reached a settlement that provides substantial benefits to the
Settlement Class, in return for a release and dismissal with
prejudice of all claims against State Farm. The Settlement was
reached after the Parties had engaged in extensive and lengthy
negotiations and four mediation sessions before a neutral
third-party mediator, George M. Van Tassel, Jr., of Upchurch Watson
White & Max. During the negotiations, and in accordance with the
highest ethical standards for class action settlement negotiations,
settlement relief to the class members was agreed to prior to
negotiations concerning any potential award of attorneys' fees,
litigation expenses, or service awards. At the time of settlement
negotiations, and after years of litigation, the Class Counsel was
therefore well positioned to evaluate the benefits of the
Settlement, taking into account the expense, risk, and uncertainty
of trial and protracted appeal thereafter with respect to numerous
difficult questions of law and fact.

The Named Plaintiff, the Additional Class Representatives, and
State Farm executed the Stipulation of Settlement and exhibits
thereto on Jan. 20, 2022.

On April 25, 2022, the Court entered its Order Preliminary
Approving Class Settlement, preliminarily approving the
Stipulation, preliminarily certifying the settlement Class for
settlement purposes, and scheduling a hearing for Sept. 23, 2022,
at 9:30 a.m. to consider final approval of the Proposed Settlement
and other actions described in the Preliminary Approval Order and
the Stipulation.

The Court previously certified a litigation class of policyholders.
As part of its Preliminary Approval Order, it conditionally
certified the same defined class for settlement purposes, again
defined as follows: All persons and entities insured under a State
Farm structural damage policy who made: (1) a structural damage
claim for property located in the State of Alabama with a date of
loss on or after March 8, 2011, but before Aug. 3, 2017; and (2)
which resulted in an actual cash value payment during the class
period from which non-material depreciation was withheld from the
policyholder; or which would have resulted in an actual cash value
payment but for the withholding of non-material depreciation
causing the loss to drop below the applicable deductible.

On Sept. 16, 2022, the Named Plaintiff and the Additional Class
Representatives moved the Court for Final Approval of the terms of
the Proposed Settlement and for the entry of a final order and
judgment. In support of the Motion for Final Approval, they
submitted a Brief in Support, setting forth extensive argument and
authority along with various exhibits attached thereto.

In addition, on Aug. 10, 2022, the Class Counsel submitted their
Unopposed Motion for Attorneys' Fees and Litigation Costs and
Request for Service Award. The Class Counsel noted their opinion
that the state of the law on service awards was unsettled and cited
Johnson v. NPAS Sols. LLC, 975 F.3d 1244 (11th Cir. 2020), reh'g en
banc denied 43 F.4th 1138 (11th Cir. Aug. 3, 2022). The Settlement
Agreement contemplates service awards to the Named Plaintiff and
the Additional Class Representatives, but is separate from the
relief made to available to the Class.

On Sept. 16, 2022, State Farm filed its Memorandum of Law in
Support of Final Approval of Class Action Settlement.

Judge Moorer finds that approval of the Stipulation and the
Proposed Settlement embodied therein will result in substantial
savings in time and resources to the Court and the litigants and
will further the interests of justice. Further, he finds that the
Stipulation is fair, reasonable, adequate to, and in the best
interests of, members of the Settlement Class, based on discovery,
due diligence, and the absence of material objections sufficient to
deny approval.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, final
certification of the Settlement Class is confirmed for the purpose
of the Settlement, in accordance with the Stipulation.

Timely requests for exclusion were submitted by 10 potential
members of the Settlement Class and those potential Class Members
are excluded from the Settlement Class. All other potential members
of the Settlement Class are adjudged to be members of the
Settlement Class and are bound by the Memorandum Opinion and Order
and by the Stipulation, including the releases provided for in the
Stipulation and the Memorandum Opinion and Order.

The Plaintiff's Motion for Final Approval is granted as modified
and all provisions and terms of the Stipulation are finally
approved in all respects, except as discussed in the Memorandum
Opinion and Order. The Parties to the Stipulation are directed to
consummate the terms of the Stipulation in accordance with its
terms, as may be modified by subsequent orders of the Court.

Except as set forth expressly therein, the Memorandum Opinion and
Order along with a separate Partial Judgment under Fed. R. Civ. P.
54(b) will be immediately entered as to all claims in the Action
between the Named Plaintiff, the Additional Class Representatives
and the Class Members, and State Farm, and Final Judgment is
entered approving and adopting all terms and conditions of the
Settlement and the Stipulation, fully and finally terminating all
claims of the Named Plaintiff, the Additional Class
Representatives, and the Settlement Class in the Action against
State Farm in accordance with the terms and conditions of the
Settlement, on the merits and with prejudice without leave to
amend.

The Class Counsel's request for service awards for the Named
Plaintiff and the Additional Class Representatives is denied
without prejudice and leave to refile if appropriate after the
final outcome of Johnson. The "final outcome" means the date upon
which all appellate courts with jurisdiction have ruled upon such
appeal, or denied any such appeal or petition for certiorari, such
that no future appeal is possible. The Court will retain
jurisdiction to address any such renewed request.

After the entry of the Memorandum Opinion and Partial Judgment, the
case will remain on the administratively closed docket until such
time. In the meantime, the parties are directed to file a joint
status report on the first of every quarter (beginning Jan. 1,
2023) indicating the status of the appeal in Johnson. Within 15
days of the final outcome of Johnson, the parties will notify the
Court of the renewed request for service awards and/or motion for
entry of final judgment pursuant to Fed. R. Civ. P. 58 to bring the
case to its final conclusion.

Pursuant to Rule 23(a) and (g) of the Federal Rules of Civil
Procedure, Arnold is appointed as the Representative Plaintiff for
the Settlement Class, and the Additional Class Representatives are
appointed asthe  Additional Class Representatives, and the
following counsel are appointed as counsel for the settlement
Class: Erik D. Peterson T. Joseph Snodgrass MEHR, FAIRBANKS &
PETERSON TRIAL SNODGRASS LAW LLC LAWYERS, PLLC 100 South Fifth
Street, Suite 800 201 West Short Street, Suite 800 Minneapolis, MN
55402 Lexington, KY 40507 Tel: (651) 448-2600 Telephone:
859-225-3731 J. Brandon McWherter David Martin, Esq. McWHERTER
SCOTT BOBBITT THE MARTIN LAW GROUP, LLC 341 Cool Springs Blvd,
Suite 230 2117 Jack Warner Parkway, Suite 1 Franklin, TN 37067
Tuscaloosa, AL 35401 Tel: (615) 354-1144 Telephone: (205) 343-1771

Confidential Information of State Farm will be protected from
disclosure and handled in accordance with the terms of the
Stipulation, and the Class Counsel and any other attorneys for the
Named Plaintiff and the Additional Class Representatives in the
Lawsuit will destroy or return to State Farm's Counsel all
Confidential Information in their possession, custody, or control
as set forth in the Stipulation.

The Class Counsel's Motion for Attorneys' Fees and Litigation Costs
and Request for Service Awards is granted in part and denied part.
It is granted as to the request for attorneys' fees and litigations
costs. It is denied without prejudice as to the Request for Service
Awards. Pursuant to Rule 23(h), Judge Moorer awards the Class
Counsel $8,595,000 in attorneys' fees, litigation expenses, and
costs. He finds that these amounts are fair and reasonable and
directs that State Farm will pay such amounts pursuant to the terms
of the Stipulation. State Farm will not be responsible for and will
not be liable with respect to the allocation among Class Counsel or
any other person who may assert a claim thereto, of attorneys' fees
and expenses awarded by the Court.

Claim Settlement Payments to the Class Members who timely file a
completed Claim Form will be made in the amounts, within the time
period, subject to the terms and in the manner described in the
Stipulation.

Judge Moorer appoints George M. Van Tassel, Jr., of Upchurch Watson
White & Max as the Neutral Evaluator to carry out the duties and
responsibilities set forth in the Stipulation. The Named Plaintiff,
the Additional Class Representatives, the Class Counsel, State
Farm, and State Farm's Counsel will not be liable for any act or
omission of the Neutral Evaluator.

Without further order of the Court, the Parties may agree to
reasonably necessary extensions of time to implement any of the
provisions of the Stipulation.

With the exception of the Class Counsel's request for service
awards for Named Plaintiff and Additional Class Representatives, as
to which the Court has denied without prejudice and will permit the
Class Counsel to renew the request as set forth, the Action is
dismissed with prejudice in its entirety on the merits, without any
other fees or costs to any party except as otherwise provided.

Without in any way affecting the finality of the Memorandum Opinion
and the accompanying Partial Judgment, the Court will retain
exclusive continuing jurisdiction over the Action for purposes of
enforcing the Stipulation and the Settlement; ruling upon any
renewed request for service awards for the Named Plaintiff and the
Additional Class Representatives, pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure; and any other matters related or
ancillary to any of the foregoing.

A full-text copy of the Court's Oct. 4, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2txps9j3 from
Leagle.com.


STATE FARM: Discriminates African-American Agents, Richardson Says
------------------------------------------------------------------
VVONAKA RICHARDSON, on behalf of herself and all others similarly
situated, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., STATE FARM
LIFE INSURANCE CO., STATE FARM FIRE AND CASUALTY CO., STATE FARM
GENERAL INSURANCE CO., and STATE FARM BANK, F.S.B., Case No.
1:22-cv-05495 (N.D. Ill., Oct. 6, 2022) is a class complaint
holding State Farm accountable for its unlawful treatment of
African American Agents.

This lawsuit is brought by the Plaintiffs on behalf of themselves
and other African American State Farm Agents subjected to and
harmed by the Firm's company-wide pattern or practice of race
discrimination and discriminatory policies and practices. This
action seeks class-wide injunctive relief to end State Farm's
entrenched race discrimination and make-whole relief for class
members.

According to the complaint, State Farm maintains a racially biased
corporate culture replete with harmful stereotypes regarding its
African American employees and customers that infects its policies
and decision-making, including its racial steering and
race-matching of  Agents, territories, and clients. Plaintiffs, and
the class they seek to represent in this lawsuit, challenge State
Farm's company-wide policies and practices that result in higher
rates of discipline and lower pay for African Americans.

Ms. Richardson competently discharged all duties assigned to her
and enjoyed an excellent reputation with regard to the high quality
of her work and her devotion to her job, throughout her employment.
Pursuant to its discriminatory policies and practices, however,
State Farm subjected her to race and sex discrimination and
retaliation for challenging the Firm's discriminatory practices,
the Plaintiff contends.

Plaintiff Richardson is African American and worked for State Farm
as a Term Independent Contractor Agent from June 2019 until she was
unlawfully terminated in July 2020.

State Farm Mutual Automobile Insurance Company is the parent
company of State Farm Life Insurance Company, State Farm Fire and
Casualty Company, State Farm General Insurance Company, and State
Farm Bank. State Farm is an auto and home insurer in the United
States.[BN]

The Plaintiff is represented by:

          Linda D. Friedman, Esq.
          Suzanne E. Bish, Esq.
          George S. Robot, Esq.
          Mark S. Current, Esq.
          STOWELL & FRIEDMAN, LTD
          303 W. Madison St., Suite 2600
          Chicago, IL 60606
          Telephone: (312) 431-0888
          E-mail: Lfriedman@sfltd.com
                  Sbish@sfltd.com
                  Grobot@sfltd.com
                  Mcurrent@sfltd.com

               - and -

          Justin L. Leinenweber, Esq.
          LEINENWEBER BARONI & DAFFADA , LLC
          120 N. LaSalle Street, Suite 2000
          Chicago, IL 60602
          Telephone: (312) 380-6635
          E-mail: justin@ilesq.com

               - and -

          Benjamin L. Crump, Esq.
          Nabeha Shaer, Esq.
          BEN CRUMP LAW, PLLC
          122 S. Calhoun St.
          Tallahassee, FL 32301
          Telephone: (800) 713-1222
          E-mail: court@bencrump.com
                  nabeha@bencrump.com

TRIBUCHA INC: Non-Alcoholic Kombucha Over the Limit, Suit Says
--------------------------------------------------------------
bloomberglaw.com reports that Three underage consumers who didn't
want to make illegal purchases, and an adult who avoids alcoholic
drinks for health reasons allege Tribucha Inc., misled them into
buying supposed non-alcoholic kombucha drinks that contain more
than the legal limit.

Products with more than 0.5% alcohol by volume are subject to
federal alcoholic beverage regulation, including disclosure and
warning requirements.

Testing by a federally certified lab showed that Tribucha's
unpasteurized products exceeded that level, Sean Burke and others
allege in a proposed class action filed in the US District Court
for the Eastern District of North Carolina. [GN]


UNITED STATES: Court Approves Class Settlement in Calixto v. Army
-----------------------------------------------------------------
The U.S. District Court for the District of Columbia grants the
parties' Joint Motion for Certification of Class, Appointment of
Class Counsel, and Approval of Settlement Agreement in the lawsuit
entitled LUCAS CALIXTO, et al., Plaintiffs v. UNITED STATES
DEPARTMENT OF THE ARMY, et al., Defendants, Case No. 18-1551 (PLF)
(D.D.C.).

On Sept. 1, 2022, as a result of mediation overseen by U.S.
Bankruptcy Judge S. Martin Teel, Jr., the parties informed the
Court that they had reached and executed a settlement agreement in
this case and are finalizing a joint motion that will request the
Court's certification of a class and approval of the settlement
agreement. Thereafter, on Sept. 7, 2022, the parties filed their
Joint Motion for Certification of Class, Appointment of Class
Counsel, and Approval of Settlement Agreement.

On Sept. 9, 2022, the Court held a status conference to address the
parties' motion, and on Sept. 10, 2022, the Court scheduled a
fairness hearing in this matter and ordered the parties to provide
adequate notice to class members, concluding that doing so would be
fair and appropriate so that the Court may consider any objections
to the proposed settlement that may be raised by class members.

Pursuant to that order, the parties prepared a notice of the
proposed settlement that set forth the manner and means by which
class members could raise any objections to the proposed
settlement. On Sept. 12, 2022, the class counsel provided the
Notice to the class members by posting it on the class action
website maintained by the class counsel and causing it to be posted
on the Facebook Group page maintained by certain class members.

On Sept. 20, 2022, the class counsel informed the Court that
although it had received numerous comments in support of the
proposed settlement from class members and their immigration
counsel, it had received no objections since the Notice was
provided. On Sept. 21, 2022, the Court convened a fairness hearing
in this matter at which counsel for the parties explained the terms
of the proposed settlement, described the Notice provided to class
members, discussed the mediation process before Bankruptcy Judge
Teel, and summarized the written responses received from class
members. No class members appeared to object to the proposed
settlement.

Having considered the parties' motion, the proposed settlement
agreement, the lack of any objections from class members in
response to the Notice, the matters discussed at the Sept. 9, 2022
status conference and the Sept. 21, 2022 fairness hearing, and the
entire record, the Court concludes that the proposed class meets
the requirements for certification set out in Rules 23(a) and
(b)(2) of the Federal Rules of Civil Procedure; the proposed
settlement is fair, reasonable, and adequate under Rule 23(e)(2);
and the award of attorneys' fees and costs is reasonable under Rule
23(h).

The Court finds that the class representatives and the class
counsel have adequately represented the class through years of
litigation and negotiation, and that the proposed settlement was
negotiated and finalized at arm's length before Bankruptcy Judge
Teel, who exercised both great patience and persistence in
mediating between the parties. Finally, the relief provided to the
class is exceptional and equitable, enabling all class members to
receive significant relief as relates to their ability to become
citizens of the United States under 8 U.S.C. Section 1440.

Accordingly, it is ordered that the parties' Joint Motion for
Certification of Class, Appointment of Class Counsel, and Approval
of Settlement Agreement is granted.

The Court certified this class under Rule 23(b)(2) of the Federal
Rules of Civil Procedure:

   a. All soldiers who enlisted in the U.S. Army (including
      Selected Reserve of the Ready Reserve/Delayed Training
      Program (DTP) and Regular Army/Delayed Entry Program (DEP)
      soldiers) through the Military Accessions Vital to the
      National Interest (MAVNI) program, and did so on or prior
      to September 30, 2017, and

   b. have not been discharged, or

   c. have been discharged by the U.S. Army (including the U.S.
      Army Recruiting Command and/or the U.S. Army Reserve
      Command, collectively, the Army), where such discharge or
      separation was not characterized as Honorable, General
      (under honorable conditions), Under Other Than Honorable
      Conditions, Bad Conduct, or Dishonorable.

Pursuant to Rule 23(g) of the Federal Rules of Civil Procedure, the
Plaintiffs' counsel of record at Morgan, Lewis & Bockius LLP are
appointed as class counsel.

The Settlement Agreement and U.S. Army Certification ("Settlement
Agreement"), being fair, reasonable, and adequate under Rule
23(e)(2), is approved.

As described in the parties' motion, the parties will (1) within 14
days of the filing of this Memorandum Opinion and Order, post the
Settlement Agreement and instructions regarding utilizing the
relief provided therein to the separate websites maintained by the
Army and class counsel, and (2) maintain those posts through at
least Sept. 30, 2024.

Pursuant to the parties' stipulation and Rule 41(a)(1)(A)(ii) of
the Federal Rules of Civil Procedure, the naturalization-related
allegations in the Third Amended Class Action Complaint are
dismissed with prejudice and the claims concerning U.S. Army
service that are independent of rights to naturalization are
dismissed without prejudice.

The Plaintiffs' Renewed Motion for Class Certification and
Appointment of Class Counsel is denied as moot.

A full-text copy of the Court's Memorandum Opinion and Order dated
Sept. 22, 2022, is available at https://tinyurl.com/5n8393tr from
Leagle.com.


UNITEDHEALTH GROUP: S.D. New York Dismisses Podiatric OR Suit
-------------------------------------------------------------
The U.S. District Court for the Southern District of New York
grants the Defendants' motion to dismiss the lawsuit styled
PODIATRIC OR OF MIDTOWN MANHATTAN, P.C., et al., Plaintiffs v.
UNITEDHEALTH GROUP, INC., et al., Defendants, Case No. 20-CV-9333
(JPO) (S.D.N.Y.).

On July 1, 2016, Plaintiff Podiatric OR of Midtown Manhattan, P.C.
("Podiatric OR"), along with other parties, filed a class action
complaint against Defendants UnitedHealth Group Inc., United
HealthCare Services, Inc., United HealthCare Insurance Company,
United HealthCare Service LLC, Optum Group, LLC, Optum, Inc., and
Oxford Health Plans LLC (collectively, "United").

The Court dismissed Podiatric OR from the suit based on the
presence of anti-assignment clauses in the relevant plans (Medical
Soc'y of N.Y. v. UnitedHealth Grp. Inc., No. 16 Civ. 5265, 2017 WL
4023350, at *7 (S.D.N.Y. Sept. 11, 2017)). The remaining plaintiffs
continued the suit and obtained class certification, and the case
eventually proceeded to trial.

After a five-day bench trial, the Court found in favor of United on
both counts in the suit.

Based on the findings and conclusions of the Court in the Medical
Society class action, the Plaintiffs' ERISA claims necessarily
fail. The Court declines to exercise supplemental jurisdiction over
the state law claims, which are dismissed without prejudice to
filing in state court.

Accordingly, the Defendants' motion to dismiss is granted.

The Clerk of Court is directed to terminate the motion at Docket
Number 30 and to close this case.

A full-text copy of the Court's Order dated Sept. 22, 2022, is
available at https://tinyurl.com/2fcust33 from Leagle.com.


UNIVERSITY OF MONTANA: Judge Won't Certify Gender Bias Lawsuit Yet
------------------------------------------------------------------
Keila Szpaller, writing for Daily Montanan, reports that federal
District Judge Brian Morris won't certify a lawsuit by plaintiffs
alleging gender discrimination at the University of Montana as a
class-action case just yet because he said their claims are too
broad, but he left the door open to the possibility in the future.

In a ruling, Morris said the women may petition the court again if
they identify more evidence.

"The Court believes it appropriate to permit Plaintiffs' 'a second
bite at the class certification apple,' given the importance of the
issues in this case and the previously discussed evidentiary
difficulties discrimination cases present," wrote Morris, with the
U.S. District Court of Montana in Great Falls.

The judge has said, and repeated in the Oct. 3 order, that
discrimination cases rarely uncover "smoking gun evidence." But so
far, he said plaintiffs "have not provided 'significant proof' that
Defendants acted under a general policy of discrimination," and the
women also make only an "overarching allegation of discrimination,"
where the court requires common specific facts.

In August 2021, three former high-ranking UM officials and one
current faculty member sued the university and Montana University
System alleging discrimination based on gender — in violation of
federal civil rights law.

Since the four women filed the lawsuit alleging a "good ol' boy"
mentality that hurt women at UM, 12 additional women joined the
case. In court filings, the plaintiffs have said as many as 76
women in all have contacted them or their lawyers with claims of
gender discrimination.

Courts generally allow similar allegations by different plaintiffs
to be bundled together under specific circumstances to save time
and money. According to the order on Oct. 3, bundling cases into a
"class" means a judge can resolve common allegations "in one
stroke" if people have suffered "the same injury."

But the circumstances for finding allegations similar enough are
specific, and the facts available in this case aren't enough at
this point, according to the order. In the order, Morris noted the
U.S. Supreme Court said so it's no longer enough for possible
members of the class to have been injured under the same law:
"Broad allegations of discrimination prove insufficient."

"Plaintiffs' claims all point to the same cultural infirmity
allegedly present within UM and MUS," the judge said. "Plaintiffs'
claims appear too disparate, however, to be resolved in one stroke.
Plaintiffs have failed to identify an employment practice that ties
together the putative class members to satisfy the U.S. Supreme
Court's reasoning."

The original four plaintiffs are Mary-Ann Sontag Bowman, faculty
member in social work, and former UM officials Catherine Cole,
Barbara Koostra and Rhondie Voorhees. The lawsuit names as
defendants UM, MUS, and John Does 1-50.

Currently, the judge said, plaintiffs allege different injuries
under Title IX, which prohibits discrimination based on sex. For
example, Cole, the former vice president of enrollment, alleges
"disparate treatment" forced her to resign, but faculty member
Sontag Bowman alleges her own advocacy against discrimination on
campus has led to "retaliation."

The order noted "retaliation" is a different theory of
discrimination under Title IX than "disparate treatment."

The judge also noted the "uniquely harsh nature of the standard" to
have to provide significant proof upfront in a discrimination case
because discrimination is usually "'hidden under a veil of
self-declared innocence.'" But he also wrote about ways a class
might emerge going forward.

To certify the class, the judge said the court would need
additional specific information that ties the cases together, and
he said subgroups of plaintiffs also are possible. But the
plaintiffs haven't provided adequate details so far.

"Plaintiffs have failed to identify specific facts the Court could
use to unite either the actions of Defendants as to each class
member or the injuries class members have suffered," the judge
said.

Statement from UM, Defendant

"The University of Montana is pleased that the Court agreed with
the University and has denied class certification of these claims.
UM reiterates that these accusations are not supported by fact.
Even after a year of litigation, there continues to be no evidence
that supports the Plaintiffs' class claims. This holds true despite
the months of discovery and litigation that Plaintiffs have
pursued. The University continues to be committed to empowering its
employees and creating opportunity for all. This includes the
proactive diversity, equity and inclusion work embraced by the
University. Looking forward, the University remains confident that
the allegations are not supported by facts, that class
certification will not be granted in the future, and that the
claims themselves lack merit." -Dave Kuntz, Director of Strategic
Communications

Statement from Plaintiffs' Lawyers

"On behalf of our 16 clients, we look forward to their day in
court.  Regarding the Court's recent order discussing the women who
are not named plaintiffs in this case, we are pleased that the
Court has given us clear guidance in the early stages of this
litigation on the evidence needed and the path to advocating for
these absent women if and when we request class certification in
the future." - Sherine Blackford and Hillary Carls of Bozeman [GN]

UNIVERSITY OF NORTH CAROLINA: Retention of Lannan's Claims Upheld
-----------------------------------------------------------------
In the case, JOSEPH LANNAN, AND LANDRY KUEHN, on behalf of
themselves and others similarly situated, Plaintiffs v. BOARD OF
GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA, known and
distinguished by the name of "THE UNIVERSITY OF NORTH CAROLINA," a
body politic and corporate, Defendant, Case No. COA21-554 (N.C.
App.), the Court of Appeals of North Carolina enters an Opinion
affirming:

   a. the order denying the Defendant's Motion to Dismiss
      Plaintiffs Lannan and Kuehn's breach of contract claims;
      and

   b. the same order granting the Defendant's Motion to Dismiss
      the Plaintiffs' state constitutional claim under Corum v.
      University of North Carolina Through Bd. of Governors, 330
      N.C. 761, 413 S.E.2d 276 (1992).

Since the case is at the pleading stage, the Court of Appeals
relies upon the facts as alleged in yjr Plaintiffs' Amended
Complaint. The Defendant is the Board of Governors for the
University of North Carolina at Chapel Hill ("UNC-CH") and North
Carolina State University at Raleigh ("NCSU"), two constituent
institutions of the University of North Carolina. Before the Fall
2020 Term, the Defendant required students planning to attend the
Universities to pay certain student fees. These students included
Kuehn, an undergraduate student at UNC-CH, and Lannan, a graduate
student at NCSU. The Universities required students to pay these
fees to register as a student, "remain in good standing," receive
"scholastic credit," and "obtain a transcript" for the Fall 2020
term.

The student fees were also "earmarked for specific categories of
services and benefits" that Fall 2020 students at the Universities
"were entitled to receive" from the Universities. The Universities
"represented in writing on their respective websites and in written
communications to each student" through emails to students, account
statements, and an itemized bill, "each component Student Fee would
be used for the purposes described for that component fee."

In addition to the student fees, the Plaintiffs and some other
students purchased from the Universities "optional motor vehicle
parking permits which permitted the purchasers to park their motor
vehicle on NCSU's and UNC-CH's convenient on-campus parking lots
for the Fall 2020 Terms." For Lannan, this fee covered only the
Fall 2020 Term, but for Kuehn, the parking permit included both the
Fall 2020 and Spring 2021 Terms.

In August 2020, both NCSU and UNC-CH took measures to switch from
in-person to online learning and shut down their campuses for the
Fall 2020 Term. The original Complaint indicated this shut down was
due to the COVID-19 pandemic, but the Amended Complaint includes no
explanation for the shutdown.

As a result of the shutdown, the constituent Universities: "evicted
all students from on-campus housing"; cancelled "all in-person,
on-campus instruction"; restricted "campus transportation service
to the point that service was of extremely limited value"; barred
students from accessing "on-campus student athletic, recreation
facilities," and student activity venues; "shut down on-campus
libraries workshops, laboratories, studios, museums, arboretums,"
the student unions, and dining halls; "stopped live art
performances on campus"; prohibited students from attending
intercollegiate sports; "discontinued student organization activity
and other in-person student activity"; and "curtailed student
health services and advised Fall 2020 Term students that they
should obtain health services" elsewhere.

Based on these alleged facts, the Plaintiffs eventually filed an
Amended Complaint on Feb. 3, 2021. The Amended Complaint includes
claims for breach of contract, "or, in the alternative, if it is
determined that the Plaintiffs cannot assert a claim for breach of
contract, a 'Corum claim'" against Defendant for its constituent
Universities UNC-CH and NCSU's decisions to "improperly" assess and
retain student fees and on-campus parking permit fees "after
on-campus classes, activities, and student services at the"
Universities "were stopped or curtailed in and after August 2020."

The Amended Complaint states the suit is a class action "on behalf
of students who registered and paid student fees for the Fall 2020
academic semester" at the constituent Universities of the
University of North Carolina, with a separate class for those who
paid for on-campus parking. As a result, the Amended Complaint
includes "Class Action Allegations," (capitalization altered) but
the class action component of the lawsuit is not at issue in this
appeal.

Focusing on the relevant portions of the lawsuit, the breach of
contract claims cover both student fees and parking permit fees. As
to the student fees contract claim, the Amended Complaint alleges
the Universities "offered to Plaintiffs and other prospective Fall
2020 Term students that if the prospective students registered for
the Fall 2020 Terms and promised to pay" student fees they "would,
in turn, receive the services, benefits, and opportunities"
described in the student fees. The Plaintiffs and the other
students then "accepted the offers" when they paid their student
fees and thus "expected to receive, and were entitled to receive
all of the services, benefits, and opportunities" described.
According to the Amended Complaint, this constituted "a meeting of
the minds," thereby, creating a contract.

While the Plaintiffs and the other students in the class "fully
performed their duties" by paying the student fees, the
Universities breached the contract when they shut down their
campuses, because they either stopped providing the services or
"rendered" them "of no value whatsoever." The Amended Complaint
alleges "but for the unnecessary decisions" to shut down the
campuses, the Plaintiffs and the other students in the proposed
class "would have regularly gone on their respective campuses" and
thus taken advantage of the services and benefits provided for by
the student fees, as they and others had done in the past. Finally,
the Amended Complaint alleges the Plaintiffs and the other students
suffered damages because they did not receive "the services,
benefits, and opportunities" they paid for with the student fees
and the fees "were not adjusted, pro-rated, or rebated in any way"
following the campus shutdowns.

As to the parking fees contract claim, the Universities "offered to
sell optional parking permits" to the Plaintiffs and other students
"which would permit the purchaser to park a motor vehicle in an
on-campus parking lot during the Fall 2020" Term. The Plaintiffs
and some other students "accepted the offers" by buying the parking
passes, thereby forming a contract. The Amended Complaint alleges
all relevant students performed by paying their parking fees fully
and expected and were entitled to receive "the full benefit of
their parking permits for the duration of the Fall 2020 Term." But
the Universities breached the contract by shutting down their
campuses, which meant the on-campus parking passes were "rendered
worthless." While the Plaintiffs and other students received
partial refunds, the refunds did not cover the full cost of the
parking passes and thus the full damages suffered.

For both contract claims, the Amended Complaint also alleges
Defendant waived sovereign immunity. It first alleges Defendant is
a State agency. Then, it alleges when the State or its agencies,
such as Defendant, enter into a contract, it "implicitly consents
to be sued for the breach of that contract and the doctrine of
sovereign immunity is not a defense," citing Smith v. State, 289
N.C. 303, 320, 222 S.E.2d. 412, 423-24 (1976). The Amended
Complaint finally alleges Defendant waived "any defense based on
sovereign immunity when it entered into the contracts" for student
fees and parking permits as already described.

Finally, the Amended Complaint includes a Corum claim "in the
alternative" to its breach of contract claims if those are barred
by sovereign immunity. The Amended Complaint alleges a Corum claim
allows a direct claim under the Constitution for a violation of a
right protected by the Constitution when a plaintiff lacks access
to other statutory or common law remedies.

Specifically, the Plaintiffs allege the contracts with the
Universities -- wherein they paid money for certain services and
benefits -- created a "vested property interest" in those service
and benefits such that they would either receive those things or
"receive a timely and proportionate refund" for what the
Universities "promised, but failed, to provide." The Amended
Complaint explains under the Constitution's Article I, Section 19
"Law of the Land" Clause, such private property could not be "taken
for public use" unless "just compensation" was paid. According to
the Amended Complaint's allegations, when the Universities shut
down and denied the Plaintiffs and other students those benefits,
they took the vested property interest, and they did not provide
appropriate refunds as just compensation.

The Amended Complaint also states "If the claims for breach of
contract fail, then the Plaintiffs" and other students in the
proposed classes "lack any sort of state remedy." As part of this
paragraph, the Amended Complaint states, "But for the doctrine of
sovereign immunity, the Plaintiffs and the other students would
have claims against the Defendant" or its constituent institutions
"for the intentional tort of conversion or for unjust enrichment."
Finally, as to the Corum claim, the Plaintiffs allege they are
"entitled to" money damages.

On March 2, 2021, the Defendant filed a "Motion to Dismiss the
Amended Complaint" based on North Carolina Rules of Civil Procedure
12(b)(1), 12(b)(2), and 12(b)(6). First, it argued the "Plaintiffs'
claims are barred by sovereign immunity." Next, it contended the
Amended Complaint failed to state claims for relief for breach of
contract and for a state constitutional violation. Finally, its
Motion to Dismiss claimed the Plaintiffs "lack standing to assert
the claims in the Amended Complaint on behalf of other students"
and fail to show "its alleged conduct proximately caused their
alleged damages."

Following a hearing on May 10, 2021, the trial court entered an
order on the Defendant's Motion to Dismiss on June 18, 2021. The
order granted the Motion to Dismiss the Plaintiffs' Corum claim,
but it denied the Motion to Dismiss the Plaintiffs' contract
claims. On June 23, 2021, the Defendant filed a notice of appeal
from that order.

On June 29, 2021, the Plaintiffs filed a "Motion to Amend the
Order." They requested the trial court amend its order on the
Defendant's Motion to Dismiss to make clear the Corum claim was
"properly pled" in general and only failed because they "had an
adequate state-law remedy" via the contract claims such that "the
court of appeals would have jurisdiction to review the dismissal of
the Corum claim as an alternative basis for denying the Motion to
Dismiss." They also requested, "in the alternative," the order be
amended "to certify the dismissal of the Corum claim as a final
judgment and that there is no just reason for delaying the appeal
of that dismissal."

The trial court entered an "Amended Order" on June 30, 2021. It
still granted the Defendant's Motion to Dismiss as to the Corum
claim and denied it as to the contract claims. It then added
language "concluding that there is no just reason to delay the
appeal of the dismissal of the Corum claim and that Order is
certified for immediate appeal," as the Plaintiffs had requested.
On July 1, 2021, the Plaintiffs filed written notice of appeal from
the Amended Order's dismissal of their Corum claim. The Defendant
filed a notice of appeal from the Amended Order's denial of its
Motion to Dismiss the contract claims on July 6, 2021.

The case presents three issues for the Court of Appeals' review
arising from the Defendant's appeal and the Plaintiffs'
cross-appeal of the Amended Order. First, the Defendant argues "the
doctrine of sovereign immunity bars the Plaintiffs' claims," so the
trial court should have dismissed Plaintiffs' contract claims.
Second, it argues the trial court should have dismissed the
contract claims "pursuant to Rule of Civil Procedure 12(b)(6) for
failure to plead a claim for breach of contract upon which relief
may be granted." Third, in their cross-appeal, the Plaintiffs argue
to the extent they "have no remedy for breach of contract, then, in
the alternative, their Corum claims state claims for relief" such
that the trial court erred by dismissing that claim.

The Defendant argues "the doctrine of sovereign immunity bars the
Plaintiffs' claims." Specifically, it contends the "Plaintiffs have
not adequately pled waiver of sovereign immunity" because they have
not pled a "valid and express contract" as required. Within this
argument, it has two points. First, it argues the Plaintiffs fail
to plead an express contract. On this point, the Plaintiffs respond
an express contract is not required because "an implied-in-fact
contract overcomes sovereign immunity" too. Second, the Defendant
asserts the Plaintiffs failed "to allege a valid contract." The
Plaintiffs respond they "pleaded a valid contract
implied-in-fact."

Thus, the Defendant's sovereign immunity argument presents the
Court of Appeals with two issues. As both parties agree, a valid
contract can waive sovereign immunity. First, the Court of Appeals
must decide if a valid implied-in-fact contract, as opposed to an
express contract, can waive sovereign immunity. Then, if an
implied-in-fact contract can waive sovereign immunity, it considers
whether the Plaintiffs pled a valid implied-in-fact contract
sufficient to effect such a waiver. After addressing the standard
of review, it discusses each issue in turn.

The Court of Appeals concludes that a contract implied can waive
sovereign immunity under the contractual waiver holding in Smith.
Smith spoke of the waiver of sovereign immunity in broad terms,
only requiring a valid contract, in a case where the employment
contract was based on statute. In the decades since Smith, the
appellate courts have continued to refine the contours of Smith's
sovereign immunity waiver, explaining how it applies, or does not
apply, to the "three variations of contract theory: express
contract, contract implied in fact, and contract implied in law."
The courts have first applied the waiver in cases where there are
express, written contracts.

In the educational context, as alleged by the Plaintiffs' Amended
Complaint, the educational institutions agreed to accept and enroll
the students, and the students have agreed to pay certain fees for
particular services to be provided as part of the educational
program. The parameters of the alleged implied contract are quite
clear, and the State may, with a fair degree of accuracy, estimate
the extent of its liability for a breach of contract. And one of
the most basic forms of contract is an agreement for one party to
pay money to another party in return for some form of goods or
services.

As a result, the Court of Appeals must determine whether the
Plaintiffs, who rely on such a contract, sufficiently pled such
waiver. It concludes the Plaintiffs adequately pled a valid
contract implied in fact. Among other things, it finds that the
specific billing statements, lists of fees, etc. do not need to be
specifically incorporated into a contract because Plaintiffs allege
they are the contract. While the fees do not specifically say the
Defendant or the constituent Universities promise to do anything,
the Plaintiffs' contention is, in essence, the circumstances and
relationship they had with the institutions meant a contract could
be implied. That is a contract implied in fact, and the Plaintiffs
did not need to plead an ything further.

Because a valid contract implied in fact waives sovereign immunity,
it holds, after its de novo review, the Plaintiffs properly pled
such a waiver and the trial court did not err in denying the
Defendant's motion to dismiss on the grounds of sovereign
immunity.

In its final argument in its appeal from the Amended Order, the
Defendant contends the trial court erred by not dismissing the
contract claims "pursuant to Rule of Civil Procedure 12(b)(6) for
failure to plead a claim for breach of contract upon which relief
may be granted." Specifically, it argues the "Plaintiffs do not
allege that any of the services for which the fees were purportedly
charged stopped when the institutions changed the mode of
instruction" and they "failed to identify any instance where they
requested a service and were denied" such that their claims "are
speculative at best."

Since it has already determined the Plaintiffs pled a valid
contract, te Court of Appeals only need to address whether the
Plaintiffs adequately pled breach to address the trial court's Rule
12(b)(6) ruling. It determines the Plaintiffs properly pled breach
of the contract.

As to the student fees claim, the Plaintiffs pled the Universities
"voluntarily and permanently stopped, or severely curtailed
providing many of the services, benefits, and opportunities" that
they allege were promised in return for many of the student fees
and those conditions "persisted for the duration of the Fall 2020
Term." Turning to the parking fees claim, the Plaintiffs have pled
they paid for a service and the constituent institutions took
actions that prevented them from using those services, at least the
same way they would have had campus been open as normal. After its
de novo review, the Court of Appeals opines that the trial court
did not err in denying the Defendant's motion to dismiss the
Plaintiffs' contract claims for failure to state a claim under Rule
12(b)(6).

Turning to the Plaintiffs' cross-appeal, they argue "to the extent"
they "have no remedy for breach of contract to recover student fees
or parking fees, then, in the alternative, their Corum claims state
claims for relief." Specifically, they argue they properly pled a
constitutional claim under the Law of the Land Clause in Article I,
Section 19 of the Constitution because they allege a vested
property interest arising from the contract with the Defendant and
that the constituent institutions took that interest when they
accepted the Plaintiffs' money but did not provide services or a
refund. The Plaintiffs acknowledge their Corum claim and contract
claims "are mutually exclusive -- the Corum claim exists only if
the contract claims are not viable."

The Court of Appeals opines that the Plaintiffs fail to state a
Corum claim because they do not lack an adequate state remedy; they
have the contract claims. Since it found sovereign immunity did not
bar the Plaintiffs' contract claims, they can "enter the courthouse
doors and present their claim." Further, the remedy for those
contract claims, namely money damages, is identical to the
Plaintiffs' requested remedy for the alleged constitutional
violation as part of the Corum claim, so the contract claims
redress "the alleged constitutional injury.

Determining sovereign immunity does not bar the Plaintiffs'
contract claims, the Court of Appeals similarly holds the
Plaintiffs have an "adequate alternative remedy under state law" so
their Corum claim based on Article I, Section 19 of the
Constitution should be dismissed. Therefore, after the Court of
Appeals' de novo review, it holds that the trial court did not err
by dismissing the Plaintiffs' Corum claim.

Having reviewed both the appeal and cross-appeal, the Court of
Appeals affirms. It first determines it has appellate jurisdiction
over the sovereign immunity issue related to the contract claims
because it affects a substantial right, over the Corum issue
because of the trial court's Rule of Civil Procedure 54(b)
certification, and over the Rule 12(b)(6) issue related to the
contract claims because it grants the Defendant's Petition for Writ
of Certiorari as to that issue.

Turning to the merits, the Court of Appeals holds that the trial
court properly denied the Defendant's Motion to Dismiss the
contract claims on sovereign immunity grounds because the
Plaintiffs adequately pled a valid implied-in-fact contract and
such a contract can waive sovereign immunity. The trial court also
properly denied the Motion as to the contract claims on 12(b)(6)
grounds because the Plaintiffs' Amended Complaint properly pleads
breach of contract claims. Finally, the trial court correctly
granted the Motion to Dismiss the Plaintiffs' Corum claim because
the Plaintiffs' contract claims are an adequate alternative
remedy.

Judges Dillon and Jackson concur.

A full-text copy of the Court's Oct. 4, 2022 Opinion is available
at https://tinyurl.com/cxwu947f from Leagle.com.

White & Stradley, PLLC, by J. David Stradley and Robert P. Holmes,
IV, and Law Office of Brian D. Westrom, by Brian D. Westrom, for
the Plaintiffs-Appellees/Cross-Appellants.

Attorney General Joshua H. Stein, by Special Deputy Attorneys
General Laura McHenry and Kari R. Johnson, and Brooks, Pierce,
McLendon, Humphrey & Leonard, LLP, by Jim W. Phillips, Jr. --
jphillips@brookspierce.com -- and Jennifer K. Van Zant --
jvanzant@brookspierce.com -- for the
Defendant-Appellant/Cross-Appellee.


UNIVERSITY OF SOUTH FLORIDA: Denial of Moore Suit Dismissal Upheld
------------------------------------------------------------------
In the case, THE UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES,
Appellant v. VALERIEMARIE MOORE, Appellee, Case No. 2D21-2685 (Fla.
Dist. App.), the District Court of Appeal of Florida for the Second
District affirms the trial court's order denying The University of
South Florida Board of Trustees' motion to dismiss.

The University of South Florida Board of Trustees (USF) appeals a
trial court order denying its motion to dismiss in which it
asserted the defense of sovereign immunity. Ms. Moore filed the
underlying class action complaint against USF alleging claims for
breach of contract and unjust enrichment based on the collection of
student fees for on-campus services that were not offered due to
COVID-19.

Ms. Moore filed a class action complaint alleging that during all
semesters in 2020 and the Spring 2021 semester, USF collected fees
for on-campus services that were not offered due to COVID-19. She
alleged, "USF has improperly retained funds for services it did not
provide, in violation of its express contracts with students which
allow it to collect fees only for certain statutorily specified
purposes."

In its motion to dismiss, USF argued that the breach of contract
claim is barred by the doctrine of sovereign immunity. It alleged
that the complaint's assertion that Ms. Moore entered into an
express written contract with USF is a legal conclusion, which is
insufficient to establish a cause of action for breach of contract.
USF argued that two account statements attached to the complaint
were not student invoices, and it argued that even if an invoice
were attached, it would at most constitute a claim for breach of an
implied contract.

At the hearing on the motion to dismiss, USF argued that it only
waives sovereign immunity when it enters into an express, written
contract, and if there is a contract in the case, it is an implied
contract. Florida Defense Lawyers Association filed an amicus brief
in support of USF. The National Association of Consumer Advocates
filed an amicus brief in support of Ms. Moore.

The order at issue granted USF's motion to dismiss Ms. Moore's
breach of contract claim for the limited purpose of allowing her to
attach her registration agreement to her amended complaint, but it
otherwise denied USF's motion to dismiss on the merits of its
sovereign immunity defense. The order also dismissed Ms. Moore's
unjust enrichment claim without prejudice to her ability to add
allegations to support her claim.

The issue raised in this appeal is whether the trial court erred in
denying USF's motion to dismiss the breach of contract claim based
on sovereign immunity.

USF argued at the hearing on its motion to dismiss that, even
assuming the registration agreement is an express written contract,
it does not set forth a promise by USF to provide any specific
services in exchange for student fees. Therefore, it contends, Ms.
Moore cannot establish that USF breached a provision of the
contract.

The District Court of Appeal concludes that the trial court
correctly rejected this argument at this stage of the pleadings. It
notes that this argument was not raised in USF's motion to dismiss.
Further, a determination regarding whether the parties' "legal,
binding contract" included a promise to provide on-campus services
in exchange for fees is more appropriate at the summary judgment
stage. Although Ms. Moore has sufficiently pleaded the existence of
a contract, this is not necessarily "a typical contract situation
where there is an express document with delineated terms that a
plaintiff can reference."

The "terms and conditions" of the registration agreement along with
any associated registration policies must be examined to determine
whether they contain a promise by USF to provide any specific
services in exchange for the fees it charged students.
Additionally, Ms. Moore agreed to "USF policies" when she clicked
"Submit Changes" on the website and, therefore, USF policies must
be examined to determine if USF promised to provide any specific
services in exchange for student fees. Although USF argues in its
brief that the "Registration Agreement and the USF policies make no
promises to Moore regarding any specific services in return for her
payment of student fees," USF's policies are not included in USF's
appendix and the transcript does not reflect that the policies were
provided to the trial court.

For these reasons, the District Court of Appeal affirms the trial
court order denying USF's motion to dismiss based on the defense of
sovereign immunity without prejudice to USF's right to assert the
defense in a motion for summary judgment.

Judge Villanti and Labrit concur. The Opinion subject to revision
prior to official publication.

A full-text copy of the Court's Sept. 30, 2022 Opinion is available
at https://tinyurl.com/mv28ephw from Leagle.com.

Richard C. McCrea, Jr. -- mccrear@gtlaw.com -- and Cayla M. Page --
pagec@gtlaw.com -- of Greenberg Traurig, P.A., Tampa, for the
Appellant.

Adam A. Schwartzbaum -- adams@moskowitz-law.com -- Adam Moskowitz
-- adam@moskowitz-law.com -- Howard M. Bushman --
howard@moskowitz-law.com -- and Barbara C. Lewis --
barbara@moskowitz-law.com -- of The Moskowitz Law Firm, PLLC, Coral
Gables, for the Appellee.

Kansas R. Gooden -- kgooden@boydjen.com -- of Boyd & Jenerette,
P.A., Miami; and Robert J. Sniffen and Jeffrey D. Slanker --
jslanker@sniffenlaw.com -- of Sniffen & Spellman, P.A.,
Tallahassee, for Amicus Curiae Florida Defense Lawyers
Association.

Janet R. Varnell -- Info@vandwlaw.com  -- of Varnell & Warwick,
P.A., Tampa, for Amicus Curiae The National Association of Consumer
Advocates.


VIVA ITALIA!: Healy Sues Over Unpaid Minimum and Overtime Wages
---------------------------------------------------------------
MAURA HEALY, JOHN LUONGO, SCOTT RIGGS and all those similarly
situated, Plaintiffs v. VIVA ITALIA! LLC d/b/a VA BENE, Defendant,
Case No. 2:22-cv-02397 (D. Kan., Oct. 3, 2022) arises from the
Defendant's policies and practices of denying minimum wages and
overtime pay to Plaintiff and all others similarly situated in
violation of the Fair Labor Standards Act.

Plaintiffs Healy, Luongo, and Riggs were employed by the Defendant
as servers/bartenders at its restaurants from approximately January
2021 until August 2021, from the time it opened until approximately
April 2021, and from March 2020 until approximately September 2020,
respectively.

Viva Italia! LLC, d/b/a Va Bene, is an Italian eatery located in
Prairie Village, Kansas.[BN]

The Plaintiffs are represented by:

          John J. Ziegelmeyer, Esq.
          Brad K. Thoenen, Esq.
          Kevin Todd, Esq.
          HKM EMPLOYMENT ATTORNEYS LLP
          1501 Westport Road  
          Kansas City, MO 64111  
          Telephone: (816) 875-3332
          E-mail: jziegelmeyer@hkm.com
                  bthoenen@hkm.com
                  ktodd@hkm.com

WALMART INC: Faces Suit Over Mislabeled Great Value Veggie Straws
-----------------------------------------------------------------
Kelly Mehorter at classaction.org reports that a proposed class
action alleges Walmart has falsely labeled its Great Value Veggie
Straws as free of artificial flavoring and preservatives.

According to the 25-page case, Walmart has deceptively labeled the
snack as having "No Artificial Flavors or Preservatives," even
though it contains the chemical preservative citric acid and
synthetic flavoring ingredient malic acid.

The Food and Drug Administration (FDA) classifies citric acid as a
preservative in its Overview of Food Ingredients, Additives, and
Colors, the suit states. The lawsuit also relays that FDA
regulations categorize malic acid as a "flavor enhancer,"
"flavoring agent," and an ingredient used to control the pH of
food.

Even if Walmart intended to use malic acid as a pH control agent,
"its presence in the Products nonetheless impacts, affects, or
enhances the flavor" of the zesty ranch-flavored veggie straws, and
consumers thus must be informed that the item contains artificial
flavoring, the case argues.

"As a direct result of Defendant's deceptive statements concerning
the nature of its Products, Plaintiff and Class Members paid a
premium for the Products over other comparable products that do not
make the same representations," the lawsuit claims.

Per the complaint, Walmart's "false, deceptive, and misleading"
advertising of the Veggie Straws violates Florida's Deceptive and
Unfair Trade Practices Act. The case alleges the product's
mislabeling also fails to satisfy federal labeling requirements:

"Federal regulations declare that if a food contains artificial
flavor which simulates, resembles or reinforces the characterizing
flavor, the name of the food on the principal display panel or
panels of the label shall be accompanied by the common or usual
name(s) of the characterizing flavor [which] shall be accompanied
by the word(s) 'artificial' or 'artificially flavored'. . ., e.g.,
'artificial vanilla,' 'artificially flavored strawberry,' or 'grape
artificially flavored.'"

The complaint argues that Walmart has used false labels to
capitalize on consumer health trends as buyers are willing to pay
more for products free of artificial additives. A 2015 survey by
Nielsen found that 88% of those polled are willing to pay more for
healthier foods, including products that have no artificial
coloring and are deemed all-natural, the filing relays.

The lawsuit looks to represent anyone in the United States who
purchased one or more of the Great Value Veggie Straws containing
citric acid or malic acid ingredients within the last four years.
[GN]

WHITE SHEEP: Prate Seeks Tips, Minimum Wages for Restaurant Servers
-------------------------------------------------------------------
KATELYN PRATE, individually, and on behalf of all others similarly
situated v. THE WHITE SHEEP, INC., an Illinois corporation, Case
No. 1:22-cv-05478 (N.D. Ill., Oct. 6, 2022) seeks to recover
applicable tips and minimum wages for certain hours worked for the
Plaintiff and all restaurant servers who worked within the past 3
years for the Defendant in Orland Park, Illinois under the Fair
Labor Standards Act and the Illinois Minimum Wage Act.

Allegedly, the Defendant violated the FLSA by allowing certain
ineligible individuals (including dishwashers and cooks) to receive
a portion of the tip share to which the Plaintiff and members of
the putative class were required to contribute.

Ms. Prate and Class Members are/were servers who worked for White
Sheep. The Plaintiff worked for the Defendant from June 2022 to
September 2022.

The Plaintiff seeks certification of the following collective as
follows:

   -- Tip Share Collective:

      "All Servers who worked for Defendant at The White Sheep in
      Orland Park, Illinois during the past 3 years, who were
      required to share any portions of their tips with
      dishwashers, cooks, or other back of the house workers."

   -- Tip Share Class:

      "All Servers who worked for Defendant at The White
      Sheep in Orland Park, Illinois, during the past 3 years,
      who were required to share any portions of their tips
      with dishwashers, cooks, or other back of the house
      workers."

The Defendant operates The White Sheep restaurant in Orland Park,
Illinois.[BN]

The Plaintiff is represented by:

          Jordan Richards, Esq.
          USA EMPLOYMENT LAWYERS-JORDAN RICHARDS, PLLC
          1800 SE 10th Ave. Suite 205
          Fort Lauderdale, FL 33301
          E-mail: Jordan@jordanrichardspllc.com
                  Jake@jordanrichardspllc.com
                  Catherine@usaemploymentlawyers.com

[*] 11th Cir. Court May See Downturn in OD/NSF Fee Class Actions
----------------------------------------------------------------
Howard Jay Harrington and Christian George, writing for
Jacksonville Daily Record, report that overdraft and nonsufficient
funds fees have been the subject of some controversy and scrutiny
in recent years.

This month, CEOs of some of the nation's biggest banks appeared for
hearings before the U.S. House Financial Services Committee and the
U.S. Senate Banking Committee on the subject, "Holding Megabanks
Accountable: Oversight of America's Largest Consumer Facing Banks,"
where they were questioned on, among other things, OD and NSF fees.


Such fees have become a significant source of income for financial
institutions (in dollar figures, if not as a percentage of total
revenue), generating an estimated $15.47 billion in 2019, according
to the Consumer Financial Protection Bureau.

As might be expected, OD/NSF fees also have become a significant
source of income for plaintiffs' attorneys, by way of class action
litigation against financial institutions.

In the past decade, there have been numerous lawsuits filed in
state and federal courts regarding financial institutions' alleged
failure to adequately disclose in their account documents how and
when OD/NSF fees will be imposed, as plaintiffs' attorneys claim is
required by the Electronic Fund Transfer Act (and its implementing
regulations, perhaps most prominently, Regulation E).

These lawsuits often attempt to bring claims on behalf of class
members without regard to whether or not they actually read (or, in
turn, relied upon) their governing account documents before
incurring a fee.

In addition to the usual failure to state a claim challenges, these
types of claims, at least in the 11th U.S. Circuit Court of
Appeals, may face significant additional hurdles in the form of
scrutiny on Article III standing.

The U.S. Supreme Court issued the opinion in TransUnion LLC v.
Ramirez, 141 S. Ct. 2190 (2021), explaining what a plaintiff must
show to establish that an alleged harm is a concrete injury for
standing purposes, with the punchline being: "No concrete harm, no
standing."

Since then, the 11th Circuit issued a series of opinions drilling
down on the "concrete" requirement for claims arising out of
statutory violations.

As noted by Circuit Judge Newsom at the outset of Laufer v. Arpan
LLC, 29 F.4th 1268, 1270 (11th Cir. 2022): "Another day, another
[11th Circuit] standing case."

Most recently, the 11th Circuit issued its en banc decision in
Hunstein v. Preferred Collection & Mgmt. Services, Inc., 19-14434
(11th Cir. Sept. 8, 2022), citing TransUnion and explaining that in
"opinion after opinion, one standing issue continues to arise—
what it takes to show concrete harm. But for this case and others
like it, where the plaintiff alleges no harm besides the violation
of a statute, the Supreme Court has cut a straightforward path.
Like it or not, that path is ours to follow."

Hunstein did not involve OD/NSF fees, but the analysis of what is
necessary for establishing a concrete injury for Article III
standing applies equally to such claims: "A ‘bare statutory
violation' is not enough, no matter how beneficial we may think the
statute to be."  

An industry shift in financial institutions' policies regarding
OD/NSF is arguably already underway.

As recognized in a memo released by the House Financial Services
Committee in advance of its hearing, a number of big banks have
started to take steps to reduce overdraft fees for consumers
following concerns raised about the excessive fee amounts being
charged.

In the interim, what will come of the putative class actions
arising from allegedly-statutorily-deficient OD/NSF disclosures,
brought on behalf of those consumer accountholders who never read
the disclosures in the first place?

After the series of 11th Circuit opinions on Article III standing
issued in the wake of TransUnion, it may well be that such claims -
often based on bare statutory violations - may no longer pass
muster in this circuit.

Time will tell, but the courts within the 11th Circuit may see a
downturn in consumer OD/NSF fee class actions.

In the age of electronic banking, many financial institutions --
and not just the top megabanks -- have customers across the
country. Savvy plaintiffs' attorneys likely will seek to institute
their actions in jurisdictions they perceive to be more favorable
on the threshold issue of standing. [GN]

                        Asbestos Litigation

ASBESTOS UPDATE: Colgate Palmolive Faces Exposure Lawsuits
----------------------------------------------------------
JEFFREY T. RICE and TEREE RICE, H/W, individually and on behalf of
all others similarly situated, Plaintiffs v. COLGATE PALMOLIVE
COMPANY (for Mennen); MINERAL AND PIGMENT SOLUTIONS, INC., f/k/a
WHITTAKER, CLARK & DANIELS, INC.; WHITTAKER, CLARK & DANIELS, INC.;
JOHN DOE CORPORATIONS 1-50; JOHN DOE CORPORATIONS 51-75,
Defendants, Case No. MID-L-004720-22 (N.J. Super., Middlesex Cty.,
September 20, 2022) is a class action against the Defendants for
negligence, breach of express and implied warranties, strict
liability in tort, intentional conspiracy, and violation of New
Jersey Products Liability Act.

The case arises from the Defendants' manufacturing, distribution,
and marketing of asbestos-containing and/or asbestos contaminated
Mennen Baby Magic talcum powder. As a result, the Plaintiff and
similarly situated consumers were exposed to respirable asbestos
fibers. The Plaintiff contracted mesothelioma and suffered from
various diverse injuries and attendant complications, says the
suit.

Colgate Palmolive Company is a manufacturer of consumer products,
with its principal place of business in New Jersey.

Mineral and Pigment Solutions, Inc., formerly known as Whittaker,
Clark & Daniels, Inc., is a supplier of industrial and specialty
chemicals, with its principal place of business in New Jersey.

Whittaker, Clark & Daniels, Inc. is a manufacturer, supplier or
distributor of talc, with its principal place of business in New
Jersey.

The Plaintiffs are represented by:                
     
         Perry L. Shusterman, Esq.
         MEIROWITZ & WASSERBERG, LLP
         1040 6th Avenue, Suite 12B
         New York, NY 10018
         Telephone: (212) 897-1988


ASBESTOS UPDATE: J&J Wins Bankruptcy Pause on States' Talc Suits
----------------------------------------------------------------
James Nani, from news.bloomberglaw.com, reports that New Mexico and
Mississippi must pause from proceeding with their asbestos-related
consumer protection lawsuits against Johnson & Johnson because
allowing them to continue while other creditors are on hold is
unfair, a New Jersey bankruptcy court judge ruled.

Judge Michael Kaplan's Tuesday ruling means Johnson & Johnson
notches another procedural win as the healthcare giant uses a
controversial bankruptcy of a subsidiary to limit its liability
stemming from creditors' claims over allegedly tainted baby powder
products.

Attorneys general from Mexico and Mississippi have filed state
court cases that allege J&J and its bankrupt unit, LTL Management
LLC, violated state laws by knowingly selling baby powder and other
products that contained asbestos and other carcinogens without
warning labels.

Allowing the states to move forward "seems patently unfair" while
"those who allege more direct, personal harm—must wait," Kaplan
said, granting LTL's motion to stop the state lawsuits.

"Given the circumstances of the instant case, fairness demands
that—for the time being—the States experience a similar impact
from injunctive relief as other creditors," Kaplan said.

Kaplan said he plans to revisit in December the issue of continued
automatic stay of litigation in LTL's bankruptcy case.

J&J created LTL last year and placed it into bankruptcy after more
than 38,000 lawsuits were filed by consumers who say they developed
ovarian cancer or mesothelioma after using the talc products in
questions.

J&J has maintained that its baby powder is safe and doesn’t
contain asbestos or cause cancer. Its goal for the bankruptcy is to
resolve the company's talc litigation claims, the company said.

The Mississippi and New Mexico cases were paused when LTL filed
bankruptcy last year. The states sought to continue their cases
against J&J since the company hasn't itself declared bankruptcy.

LTL argued that the states' claims are "inherently intertwined"
with the talc claims in the bankruptcy court. Allowing the states'
litigation to proceed would hurt the company's ability to resolve
the talc claims and hinder its reorganization prospects, LTL
argued.

The states argued that their cases should proceed because they're
sovereign entities exercising "police and regulatory powers."

States seeking to deter misrepresentative marketing is important,
the judge said. But "those considerations are not paramount to the
interests of the public in addressing the needs of the talc
claimants at this juncture," he said.

The state litigation also could disrupt J&J’s agreement to fund
LTL's bankruptcy and a potential larger resolution with claimants,
he said.

Kaplan's ruling is "ripe for immediate appellate review," said
attorney Clay Thompson, whose firm Maune Raichle Hartley French &
Mudd LLC represents mesothelioma victims.

"It's another example of this bankruptcy court exercising power it
does not have, and all to protect a $450 billion company that has
not actually filed for bankruptcy," Thompson wrote in an email.

The states' actions are meant to "prevent disease by warning the
public about asbestos contaminated baby powder they already have in
their homes," he wrote.

The case is In re LTL Mgmt. LLC, Bankr. D.N.J., No. 21-30589,
opinion issued 10/4/22.


                            *********

S U B S C R I P T I O N   I N F O R M A T I O N

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Copyright 2022. All rights reserved. ISSN 1525-2272.

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