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/raid1/www/Hosts/bankrupt/CAR_Public/221018.mbx C L A S S A C T I O N R E P O R T E R Tuesday, October 18, 2022, Vol. 24, No. 202 Headlines ACADIA HEALTHCARE: Stockholders Class Certified in St. Clair Suit AMERICAN LANDMARK: Seeks Denial of Diez Class Certification Bid AT&T INC: Deadline to File Claim in Hidden Fees' Suit Set Oct. 29 ATLAS AIR: Monteverde Firm Probes Possible Securities Violations AURORA HEALTH: Settles Wage-and-Hour Class Action for $8.75MM BARCLAYS PLC: Pomerantz Law Firm Probes Securities Violations BHP GROUP: Appeal to Exclude Group Members From Australia Dismissed BLOCK INC: Bids for Lead Plaintiff Appointment Due December 12 BOKF NA: Walker Files Writ of Certiorari with Supreme Court CABELA'S INC: Website Illegally Tracks Florida Consumers' Info CANADA: Lawyer Seeks Certification in Missing Indigenous Women Suit CELLCO PARTNERSHIP: Adell Appeals Arbitration Award to Supreme Ct. CHARTER COMMUNICATIONS: Appeals Arbitration Bid Denial to 9th Cir. CHILD DEVELOPMENT: Gambill Files Suit Over Discriminatory Practices CO-OPTIONS INC: Court Denies Bids to Dismiss Urgent One TCPA Suit CORNELL UNIVERSITY: Faber, Rahman File Class Certification Bid COWEN INC: Monteverde Firm Probes Possible Securities Violations DENVER SHERIFFS DEPARTMENT: Bid for Class Certification Due Nov. 30 DFINITY USA: Seeks Disqualification of Freedman as Lead Plaintiff DOLLAR BANK: Court Narrows Claims in TCS Suit DUVAL COUNTY SCHOOL: Helm Loses Bid to Certify Class Action EBIX INC: S.D. New York Dismisses Saraf's Second Amended Complaint ENVIVA INC: Rosen Law Probes Possible Securities Class Action EQT CORPORATION: Asbury, et al., File Renewed Bid for Class Status FAST PACE: Hutchinson Suit Seeks to Certify FLSA Collective FINAL EXPENSE: Faces Suit Over Unsolicited Telemarketing Calls FORD MOTOR: Faces Class Action Suit Over Faulty Water Pumps FUNKO INC: Agrees to Settle Shareholder Class Action for $7 Million GOSSAMER BIO: Settlement in Kuhne Suit Approved GRAPEVINE OF NORTH CAROLINA: Filing for Class Cert Bid Extended HEATHER MUELLER: Court Certifies Class of Special Children HINO MOTOR: GMP Law Commences Emission Class Action Lawsuit HOOVESTOL INC: Hardwick's Bid to Certify Class Granted in Part INTERNATIONAL GAME: Bids for Lead Plaintiff Appointment Due Dec. 13 JOHNSON & JOHNSON: Edley Loses Class Certification Bid JOLO INC: Court Grants Rule 23 Class Certification in Saad Suit JUUL LABS: Bay District Schools Join E-Cigarette Class Action Suit JUUL LABS: Leon County Joins Other Districts in E-cigarette Suit KIM BIMESTEFER: G.A., et al., Lose Bid to Certify Class KIRK MILLER: Loses Bid for Partial Summary Judgment vs AP&CIC KOHL'S CORP: Court OKs Settlement Deal in Mollett Suit LAKE COUNTY, MT: Judge Certifies Class Lawsuit Over Jail Conditions LAS CRUCES: Faces Suit Over Illegal Debt Collection Practices LAUNDRY DEPOT: Leong Seeks to Certify Rule 23 Class Action LAWN ENFORCEMENT: Conditional Status of Collective Action Sought LAWPRACTICECLE LLC: Bid to Certify Class Tossed as Moot in Goren LENNAR CORP: Catenac Alleges Breach of Fiduciary Duties Under ERISA LINCOLN NATIONAL: Amended Scheduling Order Entered in Bharwani Suit LINCOLN NATIONAL: Amended Scheduling Order Entered in COI Rate Suit LINCOLN NATIONAL: Amended Scheduling Order Entered in EFG Bank Suit LLOYD AUSTIN: Military Chaplains Seek Class Certification LLOYD AUSTIN: Scheduling Order Entered in Alvarado Class Suit MARATHON OIL: Kunneman, et al., Seek to Certify Settlement Class MARYGOLD COMPANIES: Seeks Dismissal from Lucas Class Action MATTERPORT INC: Wins Bid to Strike Stemmelin Bid to Certify Class MDL 2151: Ye v. Toyota Motor Suit Transferred to C.D. Cal. MDL 2627: Stein v. LL Flooring Suit Transferred to E.D. Va. MDL 2846: Montalbano v. Honor Health Suit Transferred to S.D. Ohio MDL 2873: Court Vacates Transfer Order in Circle K v. Johnson MDL 2913: Northwest Allen Cty Schools Sues Over E-Cigarette Crisis MDL 3014: Newsome v. Philips Transferred to W.D. Pa. MDL 3026: George v. Children's National Transferred to N.D. Ill. MDL 3044: Court Consolidates 27 Suits in E.D.N.Y. MDL 3046: Panel Denies Centralization of 3 Actions in D.D.C. MDL 3048: Panel Denies Centralization of 7 River Rights Suits MONTANA UNIVERSITY: Cole Loses Class Certification Bid MOSQUITO SQUAD: Parties Seek to Certify Class in Lenorowitz Suit MRS. FIELDS: Unlawfully Disclosed Customer Info, Lawsuit Alleges NATIONAL EDUCATION: Wilford Brings Suit to U.S. Supreme Court ND PAPER: Faces Suit Over Facility's Offensive Odor Emissions NEW MEXICO: Valdez Appeals Vaccine Mandate Case Dismissal NEW YORK, NY: District Court Dismisses E.F. v. Dep't. of Education PACIFIC NW: Piece-Rate Employees Win Conditional Class Status PASCHALL TRUCK: Carter Original Bid to Certify Class Nixed as Moot PHILADELPHIA, PA: To Install Curb Ramps as Settlement in ADA Suit PRO CUSTOM: Bid to Dismiss and to Arbitrate in Venson Suit Denied PROGRESSIVE DIRECT: Freeman Files Bid for Class Certification PROGRESSIVE PALOVERDE: Class Certification Bid Due Feb. 3, 2023 RESOLUTE FOREST: Monteverde Firm Probes Possible Securities Suit ROYAL SEAS: McCurley Loses Renewed Bid to Certify Class RUST-OLEUM CORP: Bush File Bid for Class Certification SCHMITT INDUSTRIES: Bids for Lead Plaintiff Appointment Due Dec. 12 SHOE SHOW: Smith Bid for Class Cert Denied w/o Prejudice SILVERBACK THERAPEUTICS: Monteverde Firm Probes Securities Suit SOLARWINDS CORP: NYC District Council File Bid for Class Status SOULBOUND STUDIOS: Class Action Over Investment Refund Dismissed SSM HEALTH: Brashear Seeks to Certify Class of Hourly Employees STERIGENICS US: Scheduling Order Entered in Vallejo Class Suit SYNCHRONY BANK: Lucas Seeks to Certify Settlement Class TETHER LTD: Roche Freedman Removed From Manipulation Class Suit TRI-COUNTY TELEPHONE: Court Dismisses Fraud Class Action Lawsuit UNILEVER UNITED: Krause-Pettai Seek to Certify Class Action UNITED HEALTH: Settlement Final Approval Hearing Set Feb. 8, 2023 UNITED STATES: Civil Rights Lawyer Sues on Behalf of Black Farmers UNITED STATES: Defends Record Amid Lawsuit From Black Farmers UNITED STATES: XRP Holders Join Class Action Suit Over Huge Losses VALLEY BROOK, OK: Class Cert Bid Filing Due April 2, 2023 VENETIAN CASINO: Suit Seeks to Certify Rule 23 Class & Subclass WALGREEN CO: CMP & Scheduling Order Entered in Stevens Suit WALMART INC: Merck Loses Bid to Seal Settlement Deal Docs WELLS FARGO: Handelsbanken, et al., Seek to Certify Class Action WILLIAMS-SONOMA INC: Rushing Suit Seeks Class Certification WILLOWS INN: Agrees to Settle Wage Theft Class Suit for $1.37-M [*] 1st Annual Complex Litigation Ethics Conference This Saturday [*] Housing Rights Initiative Generates Three Fraud Class Suits [*] N.D. Illinois Enters $228M Judgment in BIPA Class Action [*] New Wiretapping Class Actions Target U.S. Technology Companies ********* ACADIA HEALTHCARE: Stockholders Class Certified in St. Clair Suit ----------------------------------------------------------------- In the case, ST. CLAIR COUNTY EMPLOYEES' RETIREMENT SYSTEM, Individually and on Behalf of All Others Similar, Plaintiff v. ACADIA HEALTHCARE COMPANY, INC., et al., Defendants, Case No. 3:18-cv-00988 (M.D. Tenn.), Judge William L. Campbell of the U.S. District Court for the Middle District of Tennessee, Nashville Division, enters a Memorandum: a. denying the Defendants' Motion for Evidentiary Hearing on Plaintiffs' Motion for Class Certification; b. granting the Defendants' Motion for Leave to File a Sur-Reply; c. granting the Plaintiffs' Motion for Leave to File a Sur-Reply; and d. granting the Motion for Class Certification. Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, the Plaintiffs seek certification of the following Class: All persons who purchased or otherwise acquired the common stock of Acadia Healthcare Company, Inc. (Acadia or the Company) between April 30, 2014 and Nov. 15, 2018, inclusive (the Class Period). The Plaintiffs also request that the Court appoint the Plaintiffs as the Class Representatives and appoint the law firm of Robbins Geller Rudman & Dowd LLP as the Class Counsel. To certify a class, the Court must be satisfied that the requirements of Federal Rule of Civil Procedure 23(a) and at least one of Rule 23(b)'s provisions are met. Rule 23(a) establishes four requirements for class certification: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of those of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Rule 23(b), in turn, provides in pertinent part that when the requirements of Rule 23(a) are met a class action may be maintained if "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." The party seeking class certification bears the burden of showing that the requirements for class certification are met. The decision whether to certify a class is committed to the sound discretion of the district judge and turns on the particular facts and circumstances of each individual case. Similarly, the Court has discretion to conduct an evidentiary hearing on a motion for class certification. The Plaintiffs submits that the four requisite elements of Rule 23(a) are readily established. Judge Campbell agrees. He holds that the Plaintiffs have met the numerosity requirement by demonstrating that the class is so numerous "that joinder of all members is impracticable." They have also shown that there are common questions of law and fact for purposes of Rule 23(a)(2), including whether the Defendants were engaged in a scheme to defraud, whether the Defendants misrepresented or omitted material facts about Acadia's U.S. and U.K. facilities, whether the alleged scheme, misstatements, or omissions caused the putative class to suffer damages, whether the Defendants acted with scienter, and whether Defendants were "control persons" within the meaning of Section 20(a) of the Exchange Act. The Plaintiffs have also met the typicality prerequisite of Rule 23(a)(3). They submit that their claims are typical of the proposed Class because they arise out of the same alleged course of conduct -- that the Defendants artificially inflated Acadia's share prices by engaging in a scheme to defraud and misrepresenting the true state of its U.S. and U.K. facilities. They assert that they and the putative Class have suffered from losses from the same course of conduct and share identical interests in holding the Defendants accountable and maximizing the recovery of the Class. As to the adequacy requirement, Judge Campbell holds that the Plaintiffs have met this prerequisite of Rule 23(a)(4). He says the interests and incentives of the Plaintiffs are representative and adequate of the class at large. He agrees that Robbins Geller will adequately represent the class in this action. Robbins Geller is experienced in litigating securities class actions and, through this litigation, has competently briefed the motion to dismiss, and has provided competent briefing on the present class certification motion. The Plaintiffs submit that the action also satisfies Rule 23(b)(3)'s requirements that: (1) common questions of law or fact predominate over individual questions; and (2) a class action is superior to alternative methods of resolving the dispute. As noted, the Defendants disagree only as to the predominance. Judge Campbell agrees that class action is superior to other available methods of fairly and efficiently adjudicating the controversy, and finds that the Plaintiffs satisfy Rule 23(b)(3)'s superiority requirement. Next, the Plaintiffs contend that the action meets the predominance requirement of Rule 23(b)(3) because the core elements of their Sections 10(b) and 20(a) claims are susceptible to common proof. They argue that the element of reliance can be presumed on a class-wide basis under Basic Inc. v. Levinson, 485 U.S. 224 (1988) and Affiliated Ute Citizens of Utah v. U.S., 406 U.S. 128 (1972), "each of which allows a plaintiff to establish a 'rebuttable presumption of reliance,' without the need for individual information about each plaintiff." The Defendants contend that predominance is not established as to reliance because they have rebutted the Basic presumption and because Affiliated Ute does not apply to the Plaintiffs' claims. Judge Campbell finds that under the Basic and Affiliated Ute presumptions, for purposes of class certification, reliance will be presumed as to the Plaintiffs' claims, including the scheme claims. With that, the Plaintiffs have carried their burden in establishing that their proposed class should be certified under Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure. The Defendants' request to shorten the class period is denied. An appropriate order will enter. A full-text copy of the Court's Sept. 30, 2022 Memorandum is available at https://tinyurl.com/2p8vjtpe from Leagle.com. AMERICAN LANDMARK: Seeks Denial of Diez Class Certification Bid --------------------------------------------------------------- In the class action lawsuit captioned as LARA DIEZ, individually and on behalf of all others similarly situated, v. AMERICAN LANDMARK LLC, Case No. 1:22-cv-20189-KMM (S.D. Fla.), the Defendant asks the Court to enter an order denying class certification. The Plaintiff lacks standing to pursue her claims in this action either individually or on behalf of the putative class. In the Corrected First Amended Class Action Complaint, the Plaintiff asserts a single cause of action against Defendant under the Telephone Consumer Protection Act (TCPA). Specifically, the Plaintiff alleges receipt of four text messages about available rentals from an apartment community -- Midtown -- delivered to a cell phone number registered on National Do-Not-Call Registry (the DNC laim). The Plaintiff does not allege the use of an autodialer. Pending before this Court are two motions which demonstrate that Plaintiff lacks standing to pursue a TCPA claim in this forum. As set forth in Defendant’s Motion to Compel Arbitration, the Plaintiff's DNC Claim must be resolved by mandatory arbitration pursuant to her assent to the Terms of Use for the Website she visited when she submitted her contact information, including an optional telephone number, in search of rental apartments available at Midtown 24. American Landmark is a national multifamily owner-operator specializing in multifamily acquisition, repositioning and property management. A copy of the Defendant's motion dated Oct. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3ytn7de at no extra charge.[CC] The Plaintiff is represented by: Manny S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Blvd. Suite 1400 Fort Lauderdale, FL 33301 E-mail: mhiraldo@hiraldolaw.com - and - Lara Diez, Esq. Rachel N. Dapeer, Esq. DAPEER LAW 20900 N.E. 30th Ave., Suite 417 Aventura, FL 33180 E-mail: rachel@dapeer.com The Defendant is represented by Garry W. O'Donnell, Esq. Sherine Marder, Esq. GREENSPOON MARDER LLP 2255 Glades Road, Suite 400-E Boca Raton, FL 33431 Telephone: (561) 994-2212 Facsimile: (561) 807-7527 E-mail: garry.odonnell@gmlaw.com elaine.hill@gmlaw.com sherine.marder@gmlaw.com AT&T INC: Deadline to File Claim in Hidden Fees' Suit Set Oct. 29 ----------------------------------------------------------------- Dan Avery at cnet.com reports that are you a current or former AT&T customer? You might be eligible for part of a $14 million settlement the carrier agreed to after a class-action lawsuit alleged it charged subscribers hidden fees for years. Plaintiffs in Vianu v. AT&T Mobility argue the telecom company failed to inform postpaid wireless customers they were being charged a monthly $1.99 administrative fee they say was really a way to increase the base rate "without having to advertise the higher prices." (Unlike prepaid subscribers, postpaid customers are billed based on usage after the fact.) AT&T denied the allegations. In an email to CNET, the company said it "clearly and prominently" discloses all fees. The carrier agreed to the settlement, it added, "to avoid lengthy, expensive litigation." Here's what you need to know about the AT&T hidden fee case, including who's eligible for a payment, when the deadline to file is, and how much qualified customers could get. Scroll down for more on how to file a claim. Want to find out about more class-action settlements? See if you qualify for payouts from T-Mobile's $350 million data-breach deal or Roundup weed killer's $45 million settlement. What is AT&T accused of in the class-action lawsuit? In the suit, filed in the US District Court for the Northern District of California, plaintiffs Ian Vianu, Elizabeth Blum and Dominic Gutierrez allege a monthly administrative fee attached to each wireless line in May 2013 is really a way for AT&T to increase its basic rate "without having to advertise the higher prices." The fee has been regularly raised since then -- it more than doubled in 2018 to $1.99 a month -- even though AT&T financial records allegedly show the company's administrative costs have actually been decreasing. According to the complaint, mention of the fee is intentionally buried in bill statements "to [make] it likely customers will not notice it." It's also phrased to suggest that it's akin to a tax or regulatory fee, the suit reads, "when in fact it is simply a way for AT&T to advertise and promise lower rates than it actually charges." Calling the practice a "bait-and-switch scheme," the plaintiffs maintain AT&T has "unfairly and improperly extracted hundreds of millions of dollars in ill-gotten gains from California consumers." Their complaint accuses the carrier of violating several California statutes regarding unfair, unlawful and fraudulent business practices, as well as "the implied covenant of good faith and fair dealing." Who is eligible for money from the AT&T settlement? While all postpaid customers were charged the fees, only California residents are eligible for payment in this case. That's because the California Consumers Legal Remedies Act protects residents against "false advertising, fraud, and other unfair business practices." AT&T customers in California who were charged administrative fees on their postpaid wireless service plans between June 20, 2015, and June 16, 2022, can file a claim for a one-time cash payment. It's not clear how many subscribers AT&T has in California, although, with more than 80 million postpaid customers across the country, it is the third-largest mobile carrier in the US. How much will eligible customers receive in the settlement? Class members who successfully file a claim will receive an equal share of the $14 million settlement. According to the settlement website that's currently estimated to be $20, but the final amount may be higher or lower depending on the number of claimants, as well as attorneys' fees. Current AT&T subscribers would receive their refund via an automatic credit to their account, while former customers would get a check mailed to them. The payments won't be a full reimbursement: According to AT&T records, the average customer has paid $180 in fees since 2015, The Verge reported, two years after the practice began. How do I file a claim for payment from the AT&T settlement? If you believe you're eligible for a portion of the settlement, you can submit a claim on this website or print out a physical form to mail in. You'll be asked for your name, mailing and email addresses and AT&T Wireless phone number or account number. Claims must be submitted by Oct. 29, 2022. Some class members received emails or postcards notifying them of the potential settlement with a Notice ID and Confirmation Code. If you received a notification, include the ID and code provided when you file. If you didn't receive a postcard or email -- or do not know where it is -- you can still file without them. The deadline to opt out of the settlement and retain the right to pursue your own lawsuit was Sept. 29, 2022. When will class members receive payment from the AT&T settlement? Any compensation will be disbursed after the final approval hearing for the deal, scheduled for Nov. 3. [GN] ATLAS AIR: Monteverde Firm Probes Possible Securities Violations ---------------------------------------------------------------- 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: Atlas Air Worldwide Holdings, Inc. (Nasdaq: AAWW), relating to its proposed acquisition by investors led by Apollo Global Management Inc. Under the terms of the agreement, AAWW shareholders are expected to receive $102.50 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/atlas-air-worldwide-holdings-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 over 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] AURORA HEALTH: Settles Wage-and-Hour Class Action for $8.75MM ------------------------------------------------------------- Top Class Actions reports that Aurora Health Care Inc. agreed to pay $8.75 million to resolve claims it failed to pay its hourly workers all overtime and regular wages they were owed. The settlement benefits individuals who worked as hourly employees for Aurora Health Care Inc. in Wisconsin between Aug. 14, 2017, and Dec. 31, 2021. Aurora Health Care provides medical services to communities in eastern Wisconsin and northern Illinois. The health-care system includes 16 hospitals, over 150 clinics and 70 pharmacies. According to a wage-and-hour class action lawsuit, Aurora Health Care violates employees' rights by failing to pay them for all the work they perform. Plaintiffs in the case say they are owed regular wages and overtime wages that were denied to them as a result of Aurora Health Care's policies. These actions allegedly violated the Fair Labor Standards Act (FLSA) and Wisconsin wage-and-hour statutes requiring payment of all hours worked by hourly employees. The class action lawsuit sought back wages and penalties as compensation. Aurora Health denies any wrongdoing but agreed to a $8.75 million class action settlement to resolve these allegations. Under the terms of the settlement, class members will receive a cash payment based on the number of workweeks they worked during the Class period. Class members will receive a proportional share of the net settlement fund based on the number of weeks worked, meaning that those who worked a larger number of workweeks during the class period will be eligible for a larger payment than those who worked only a handful of workweeks during the class period. Minimum payments under the settlement are $30. Unclaimed funds from the settlement will not revert back to Aurora Health. Any unclaimed checks will be voided and will escheat to the State of Wisconsin as unclaimed property. This settlement does not resolve similar claims against Aurora in a pending federal lawsuit under the FLSA. The plaintiff in this case claims Aurora automatically deducts 30-minute meal periods from employee work days despite regularly requiring employees to perform "off the clock" work through their meal periods. According to the FLSA class action lawsuit, this work should result in overtime pay. The deadline for objection and exclusion is Oct. 14, 2022. The final approval hearing for the settlement is scheduled for Nov. 17, 2022. No claim form is required to benefit from the settlement. Class members who do not submit an exclusion request will automatically receive their calculated settlement share. Who's Eligible The settlement benefits individuals who worked as hourly employees for Aurora Health Care Inc. in Wisconsin between Aug. 14, 2017, and Dec. 31, 2021. Potential Award Varies Proof of Purchase No proof of purchase applicable Objection and Exclusion Deadline 10/14/2022 Case Name Kenyona Eubanks v. Aurora Health Care, Inc., Case No. 2:20-cv-01253-JPS, in the U.S. District Court for the Eastern District of Wisconsin Final Hearing 11/17/2022 Settlement Website AuroraHealthSettlement.com Claims Administrator Aurora Health Settlement P.O. Box 2009 Chanhassen, MN 55317-2009 info@aurorahealthsettlement.com 844-453-1314 Class Counsel James X. Bormes Catherine P. Sons LAW OFFICE OF JAMES X BORMES PC Thomas M. Ryan LAW OFFICE OF THOMAS M RYAN PC Patrick J. Schott SCHOTT BUBLITZ & ENGEL SC Defense Counsel Jeffrey L. Rudd Julia S. Wolf JACKSON LEWIS PC Mitchell W. Quick MICHAEL BEST & FRIEDRICH LLP [GN] BARCLAYS PLC: Pomerantz Law Firm Probes Securities Violations ------------------------------------------------------------- Pomerantz LLP is investigating claims on behalf of investors of Barclays PLC (""Barclays" or the "Company") (NYSE: BCS). Such investors are advised to contact Robert S. Willoughby at newaction@pomlaw.com or 888-476-6529, ext. 7980. The investigation concerns whether Barclays and certain of its officers and/or directors have engaged in securities fraud or other unlawful business practices. On March 28, 2022, Barclays announced that Barclays Bank PLC ("BBPLC") had issued approximately $15.2 billion in unregistered securities under an August 2019 shelf registration statement, that BBPLC would commence a rescission offer for those unregistered securities, and that Barclays expected the rescission losses to be approximately GBP450m. On this news, Barclays' American Depositary Receipt ("ADR") price fell $0.96 per ADR, or 10.61%, to close at $8.09 per ADR on March 28, 2022. Then, on July 28, 2022, Barclays issued interim financial results for the quarter ending June 30, 2022 and announced for the first time that BBPLC had also over-issued unregistered securities under a second BBPLC shelf registration statement. The July 28, 2022 financial results announcement also informed investors that Barclays had provisioned "GBP1,592m [approximately $1.940 billion] (December 2021: GBP220m) related to the overissuance of structured notes and GBP165m [approximately $201 million] (December 2021: nil) related to liabilities that could be incurred arising out of ongoing discussions in respect of a potential SEC resolution." On this news, Barclays' ADR price fell $0.41 per ADR, or 5.2%, to close at $7.48 per ADR on July 28, 2022. Pomerantz LLP, with offices in New York, Chicago, Los Angeles, Paris, and Tel Aviv, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, Pomerantz pioneered the field of securities class actions. Today, more than 85 years later, Pomerantz continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomlaw.com. CONTACT: Robert S. Willoughby Pomerantz LLP rswilloughby@pomlaw.com 888-476-6529 ext. 7980 [GN] BHP GROUP: Appeal to Exclude Group Members From Australia Dismissed ------------------------------------------------------------------- natlawreview.com reports that on 12 October 2022, the Australian High Court dismissed an appeal brought by BHP Group Limited (BHP), which sought to exclude group members who were not residents in Australia from a class action.1 The court was unpersuaded by BHP's arguments and determined that Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA) (Part IVA), which governs representative proceedings, does not contain any limitation on the geographic or territorial qualifications that must be satisfied in order to qualify as a group member. BHP sought to appeal the decision of the Full Court of the Federal Court of Australia, seeking a determination on the scope and application of Part IVA. Proceedings were brought against BHP on behalf of persons who purchased shares in BHP on the Australian Stock Exchange (ASX), BHP Billiton PLC on the London Stock Exchange (LSE) and/or BHP PLC on the Johannesburg Stock Exchange (JSE) as a result of the failure of the Fundao Dam in Brazil in 2015 (Proceedings). The Proceedings are premised on a claim that group members have suffered loss as a result of BHP's contravention of its continuous disclosure obligations and engaging in misleading and deceptive conduct. The Proceedings remain on foot in the Federal Court. However, the appeal was brought arising out of an interlocutory application. BHP argued that Part IVA must be interpreted in a way to not include group members who are not residents of Australia within a representative proceeding. If upheld, that argument would have had the effect of refining the scope of the Proceedings and limiting potential group members to those who purchased shares in BHP on the ASX, LSE or JSE and were domiciled in Australia. The High Court determined that there was no basis within Part IVA to infer territorial limitations and considered any person who has a claim (in accordance with the FCA) could be included within a representative proceeding, irrespective of whether they are a resident of Australia. Implications for Key Stakeholders The decision carries potentially significant ramifications for litigation funders, class action proponents, and group members within a class action, both domestically and internationally. It also has implications for actual or prospective defendants, directors and officers, auditors and ASX listed entities who have related parties listed on foreign exchanges such as the LSE. Development of a potential class of group members has historically been limited to those who reside in Australia. Limited classes often cause complications in ensuring the viability of a claim and the economics of prosecution. Further, the costs associated with developing a class focused purely on domestic participants are often prohibitive and can adversely impact claim-size economics. The clarification on the scope and application of Part IVA of the FCA opens the door for overseas-based funds and institutional investors who may have a claim - or fall within a group member definition - to commence or participate in proceedings, with little to no downside. The court's decision has the real potential to significantly improve claim economics from funding and classproponent perspectives. Target defendants to representative proceedings, in particular directors and officers, auditors and ASX listed entities, will likely bear increased downside risks. With the potential inclusion of overseas-based group members in proceedings, claims are likely to become more complex, result in increasing defendant costs, and may lead to delays in the resolution of interlocutory and final court processes. In addition, with potentially larger pools of group members, the likely damages to be paid by unsuccessful defendants will likely increase, particularly if overseas-based funds or institutional investors opt in. On the Horizon Class action courts will need to adapt to the potential expansion of classes. Among other elements, they will need to consider, and resolve, potentially more complex opt-in and opt-out processes, notification mechanisms across borders - including in non-English speaking jurisdictions - and more involved settlement approval processes where the interests of foreign members will need to be weighed. Litigation funders and class proponents will naturally welcome the High Court's decision. Conversely, target defendants (and their insurers) will be concerned. The reality is, even before today's decision, litigation funding has been on the rise following the abandonment of the previous government's regulatory reforms. The High Court's decision has the potential to see representative proceedings in Australia increase and expand to include more foreign participants. In fact, it would not be surprising if some claims were recalibrated to specifically include institutional participants based offshore, particularly from Hong Kong, Singapore and the US. FOOTNOTES 1 BHP Group Limited v Impiombato & Anor [2022] HCA 33 [GN] BLOCK INC: Bids for Lead Plaintiff Appointment Due December 12 -------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized stockholder rights law firm, announces that a class action lawsuit has been filed against Block, Inc. ("Block" or the "Company") (NYSE: SQ) in the United States District Court for the Southern District of New York on behalf of all persons and entities who purchased or otherwise acquired Block securities between November 4, 2021 and April 4, 2022, both dates inclusive (the "Class Period"). Investors have until December 12, 2022 to apply to the Court to be appointed as lead plaintiff in the lawsuit. Block, formerly known as Square, Inc., is a technology company that creates financial service tools. Block's segments include Square, which offers financial tools for sellers, and Cash App, which provides financial tools for individuals. On April 4, 2022, Block announced that a former employee had improperly downloaded certain reports of Block's subsidiary, Cash App Investing, on December 10, 2021. The information in the reports included full customer names and brokerage account numbers, as well as portfolio value, brokerage portfolio holdings, and/or stock trading activity. As many as 8.2 million Cash App Investing customers were affected. Prior to April 4, 2022, Block had not disclosed this information to shareholders. On this news, Block's stock price fell by more than 6%, damaging investors. The Block class action lawsuit alleges that defendants throughout the Class Period failed to disclose that: (i) Block lacked adequate protocols restricting access to customer sensitive information; (ii) as a result, a former employee was able to download certain reports of Block's subsidiary, Cash App investing, containing full customer names and brokerage account numbers, as well as brokerage portfolio value, brokerage portfolio holdings, and/or stock trading activity; and (iii) consequently, Block was reasonably likely to suffer significant damage including reputational harm. If you purchased or otherwise acquired Block shares and suffered a loss, are a long-term stockholder, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. About Bragar Eagel Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] BOKF NA: Walker Files Writ of Certiorari with Supreme Court ----------------------------------------------------------- BERKLEY V. WALKER filed on September 16, 2022, a petition for writ of certiorari -- assigned Case No. 22-262 -- asking the U.S. Supreme Court to review the judgment of the United States Court of Appeals for the Tenth Circuit in the case captioned as Berkley V. Walker, Petitioner vs. BOKF, National Association, dba Bank of Albuquerque, N.A., Case No. 20-2046. As previously reported in the Class Action Reporter, the Plaintiff, individually and on behalf of all others similarly situated, brought a class action suit against the Defendants captioned Berkley V. Walker, Plaintiff, v. BOKF, National Association d/b/a Bank of Albuquerque, N.A., Defendant, Case No. 1:18-cv-00810-SCY-JHR, in the U.S. District Court for the District of New Mexico. The Plaintiff seeks to recover damages and other relief from BOKF for its usurious assessment and collection of interest charged on overdrawn bank accounts in the form of "Extended Overdraft Fees" in violation of the National Bank Act. On September 20, 2018, the Defendant filed a motion to dismiss the case, which the Court granted through an Order entered by Judge Judith C. Herrera on July 15, 2019. On August 12, 2019, the Plaintiff filed a motion for reconsideration, which the Court denied on March 20, 2020. On April 16, 2020, the Plaintiff appealed the district court's ruling to the Tenth Circuit. The Tenth Circuit affirmed the district court's order dismissing the putative class action lawsuit. The Tenth Circuit noted that the First Circuit in Fawcett v. Citizens Bank, N.A., 919 F.3d 133, 136 (1st Cir. 2019), addressed the same legal question of whether extended overdraft fees constituted interest under Section 85 and the Fifth Circuit in Johnson v. BOKF, N.A., 341 F.Supp.3d 675, 681 (N.D. Tex. 2018), addressed not only the same legal question but many of the same facts. Echoing Fawcett and Johnson, the Tenth Circuit determined that Section 7.4001(a) and Section 7.4002 are ambiguous regarding how it should categorize extended overdraft fees, and it therefore defers to the Office of the Comptroller of the Currency's ("OCC") interpretation in Interpretive Letter 1082 that extended overdraft fees are not "interest" within the meaning of the NBA. The Tenth Circuit concluded that Auer deference to Interpretive Letter 1082 is appropriate. Interpretive Letter 1082 represents OCC's reasonable interpretation of genuinely ambiguous regulations, and OCC's determination that fees like BOKF's Extended Overdraft Fees are "non-interest charges" is neither plainly erroneous nor inconsistent with the regulations it interprets. As "non-interest charges" under Section 7.4002, BOKF's Extended Overdraft Fees are not subject to the NBA's usury limits, and Walker fails to state a claim. The district court also did not abuse its discretion in denying Walker's motion for reconsideration, it added. [BN] Plaintiff-Petitioner BERKLEY V. WALKER, individually and on behalf of all others similarly situated, is represented by: Ryan David Andrews, Esq. EDELSON PC 350 North Lasalle, Suite 1400 Chicago, IL 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 E-mail: randrews@edelson.com CABELA'S INC: Website Illegally Tracks Florida Consumers' Info -------------------------------------------------------------- Erin Shaak at classaction.org reports that Cabela's faces a proposed class action that alleges the outdoor equipment retailer unlawfully tracks and records the electronic communications of Cabelas.com visitors through "session replay" software embedded on the website. According to the 36-page lawsuit, Cabela's fails to notify or obtain consent from consumers who visit its website before recording their interactions with the site, including mouse movements, clicks, keystrokes, information entered into text fields, and pages and content viewed. The session replay code used by Cabela's is more robust than a traditional website cookie or other analytics tool given that it records in real time each website visitors' "entire visit" to Cabelas.com, the suit says. "Defendant's procurement of the Session Replay Providers to secretly deploy the Session Replay Code results is the electronic equivalent of 'looking over the shoulder' of each visitor to the www.cabelas.com website for the entire duration of their website interaction." The case claims Cabela's has violated a Florida privacy law by intercepting website visitors' online communications without consent and against their reasonable expectation of privacy. Although session replay software, which allows a website operator to essentially record and play back a user's entire session, is purportedly deployed to identify broken website features and improve user experience, Cabela's uses the tool for a much broader purpose, the case claims. According to the suit, the extent of consumer data collected by Cabela's "far exceeds" website visitors' expectations and allows the retailer to assemble detailed profiles of each person who visits its site. Per the case, Cabela's uses the collected information "for its own financial gain" in that the data allows the retailer to learn consumers' preferences and market its goods and services to them. The case says consumers "reasonably believed" upon visiting Cabelas.com that they were interacting with the site privately and not being "watched and recorded," especially since the defendant provided no warning that it was using session replay software to track their interactions with the site. According to the case, Cabela's use of Microsoft's Clarity session replay code and similar technology is an illegal wiretap in violation of Florida law. The suit looks to represent anyone in Florida who visited Cabelas.com and whose website communications were watched and captured in the state without their consent through the use of session replay code embedded in the defendant's website. [GN] CANADA: Lawyer Seeks Certification in Missing Indigenous Women Suit ------------------------------------------------------------------- Kathleen Martens at aptnnews.ca reports that as Manitoba recorded another killing of an Indigenous woman, a Saskatchewan lawyer said his national class-action lawsuit could help stem the violence. Tony Merchant is fighting to certify a class-action on behalf of family and community members of some missing and murdered Indigenous women and girls (MMIWG). If approved, the class-action would force the federal government to act on recommendations from the National Inquiry into Missing and Murdered Indigenous Women and Girls instead of leaving the country waiting for action, he said. "It would order the government to do it - not have them talk about ways to protect missing and murdered but never seem to do them." Merchant originally filed the claim in 2018. It alleges the federal government and its national police force - the RCMP - failed to properly investigate and prosecute cases involving MMIWG as well as members of the 2SLGBTQQIA community. The claim lists 43 victims whose disappearances and deaths occurred in Canada between 1968 and 2016. It would seek "monetary damages" for their families and community members. Merchant first argued the motion in September 2020. His attempt was quashed by Federal Court Justice Glennys McVeigh in June 2021. The issues "span far more issues than the common issues," McVeigh wrote in her decision. "This is an overly broad claim that when the Pleading(s) were reviewed had no material facts to support a rational connection to the arguments made." Notice of appeal Merchant filed a notice of appeal and is expected back in a Regina courtroom to argue it on Oct. 24. "We've had hundreds and hundreds of people contact us," he said in a telephone interview. "In part, we're trying to get compensation for those families. I view that to be very important. "But I also view getting action out of the government to be an important part of what we are doing." Taking race- and gender-based violence to civil court in this way is unique, added Merchant. "Oftentimes, a class action is just about money. . . .this is far beyond money. It impacts families and (their) happiness, and (the loss) just goes on hurting." Members of the class Merchant said some members of the class haven't received an update on their loved one from police for years, while others blame police for failing to respond quickly in the early days of the reported disappearances. The RCMP apologized during the inquiry for their failings when it came to MMIWG cases. The inquiry, which ran between 2016 and 2018, was unable to tally the number of MMIWG in Canada due to lack of reporting, poor record-keeping and inconsistent data over the years. While some advocates put the figure at more than 4,000 between 1980 and 2012, the RCMP estimate the number at 1,200. Yet the figure keeps growing. Seven Indigenous women Winnipeg, with the highest urban Indigenous population in Canada, has seen seven Indigenous women die under suspicious circumstances in 2022 alone. Outside Winnipeg, Manitoba RCMP said four Indigenous women have been killed this year, including Geraldine Miranda Chubb, 33, whose suspected homicide was announced. Chubb, of Bunibonibee Cree Nation, was found dead in an apartment in Thompson, Man., where police said a 25-year-old man was taken into custody. No charges have yet been laid. "In Manitoba, the amount of women and girls who have been taken though violence - it's too many," said Heidi Spence, director of the MMIWG Liaison Unit at Manitoba Keewatinowi Okimakanak. "It's too many - and as a community we can't allow this to be normalized. The numbers are so high and it keeps happening." After proclaiming the epidemic of violence a genocide, the inquiry concluded "persistent and deliberate human and Indigenous rights violations and abuses were the root cause behind Canada's staggering rates of violence against Indigenous women, girls and 2SLGBTQQIA people." It called for "transformative legal and social changes to resolve the crisis that has devastated Indigenous communities across the country." But only a fraction of its 231 recommendations or calls to justice have been implemented. And the Trudeau government, which initiated and funded the inquiry, has announced millions of dollars for programs but not a national action plan.[GN] CELLCO PARTNERSHIP: Adell Appeals Arbitration Award to Supreme Ct. ------------------------------------------------------------------ LORRAINE ADELL filed on September 14, 2022, a petition for writ of certiorari -- assigned Case No. 22-257 -- asking the U.S. Supreme Court to review the judgment of the United States Court of Appeals for the Sixth Circuit in the case captioned Lorraine Adell, Petitioner vs. Cellco Partnership, dba Verizon Wireless, Case No. 21-3570. On March 19, 2018, the Plaintiff filed her Class Action Complaint. She asserted a Breach of Contract Claim on behalf of a class of Verizon Wireless customers, seeking damages arising from the Defendant's practices in connection with the imposition of an "administrative charge." The Plaintiff also asserted a claim for Declaratory Relief on behalf of all Verizon Wireless telephone customers. She contended that the waiver of an Article III adjudication of her class-wide Breach of Contract Claim against Defendant is not "voluntary" because of the inability to refuse Federal Arbitration Association ("FAA") arbitration and still receive the Verizon equipment and services. She also argued that the arbitration provision in the wireless phone agreement is not enforceable because of the "inherent conflict" between arbitration under the FAA and the express purposes of the Class Action Fairness Act of 2005 ("CAFA"). The Defendant filed a Motion to Compel Arbitration and to Stay Proceedings and the Plaintiff moved for Partial Summary Judgment on her individual Declaratory Judgment claims. On March 5, 2019, the Court issued an Opinion and Order holding that: (1) the Plaintiff's consent to arbitrate disputes pursuant to the Verizon Customer Agreement was knowing and voluntary; (2) to allow the Plaintiff to refuse to arbitrate disputes on an individual basis but still retain the Verizon equipment and services would necessarily deprive the Defendant of its rights and force Defendant to accept contractual terms without its voluntary consent; and (3) the arbitration provision is enforceable because if Congress had wanted to override the FAA and ban arbitration class action waivers, it could have done so manifestly and expressly in the CAFA statute. Accordingly, the Court granted the Motion to Compel Arbitration and Stay Proceedings and denied the Plaintiff's Motion for Partial Summary Judgment. On October 16, 2020, the Plaintiff filed a motion to vacate a July 22, 2020 Arbitration Award entered in the case. In response, the Defendant filed an alternative request to confirm the Arbitration Award. On May 24, 2021, the Court denied the Plaintiff's motion to vacate July 22, 2020 Arbitration Award and granted the Defendant's alternative request to confirm the Arbitration Award through an Order entered by Judge Christopher A. Boyko. On June 22, 2021, the Plaintiff appealed the district court's ruling to the Sixth Circuit. The Sixth Circuit affirmed the district court's March 2019 opinion and order compelling arbitration and the opinion and order denying the Plaintiff's motion to vacate the arbitration award. According to the Sixth Circuit Panel, "Adell has not pointed to evidence that could overcome the high barrier for displacement of the FAA, and no other argument she makes in support of her reading requires a different outcome. CAFA undoubtedly discusses class actions, but it neither mentions arbitration nor offers the "clear and manifest congressional intention" signaling FAA displacement. Ultimately, the jurisdictional changes wrought through CAFA do not show an obvious conflict with the FAA that would make Adell's arbitration agreement with Verizon unenforceable. The Court can, and the district court did, give effect to both. The district court had jurisdiction over Adell's case through CAFA and exercised that jurisdiction when compelling arbitration and enforcing the arbitration award." [BN] Plaintiff-Petitioner LORRAINE ADELL, individually and on behalf of all others similarly situated, is represented by: William Robert Weinstein, Esq. LAW OFFICES OF WILLIAM R. WEINSTEIN 199 Main Street, 4th Floor White Plains, NY 10601 Telephone: (914) 997-2205 E-mail: wrw@wweinsteinlaw.com CHARTER COMMUNICATIONS: Appeals Arbitration Bid Denial to 9th Cir. ------------------------------------------------------------------ CHARTER COMMUNICATIONS, LLC is taking an appeal from a court order denying its motion to compel arbitration in the lawsuit entitled Lionel Harper, et al., individually and on behalf of others similarly situated, Plaintiffs, v. Charter Communications, LLC, Defendant, Case No. 2:19-cv-00902-WBS-DMC, in the U.S. District Court for the Eastern District of California. The Plaintiffs brought this putative class action against the Defendant alleging various violations of the California Labor Code's Private Attorney General Act ("PAGA") and California's Business and Professions Code. The Court previously ruled on a motion by Charter to compel arbitration of all claims brought by the Plaintiffs, except for Harper's PAGA claims, deciding the motion in Charter's favor. It subsequently stayed the action in its entirety, in part because of a case that was then pending before the U.S. Supreme Court, Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906, 1914 (2022), which had the potential to impact the PAGA claims in this action. On August 2, 2022, the Defendant filed a motion to compel Harper to arbitrate his "individual" PAGA claims, as distinct from his "representative" PAGA claims, which the Court denied through an Order entered by Judge William B. Shubb on September 7, 2022. The question before the Court was whether the Solution Channel Agreement provides for the splitting of PAGA claims into "individual" and "non-individual" claims, as discussed in Viking River Cruises, such that the individual PAGA claims may be compelled to arbitration and the non-individual claims dismissed. Judge Shubb held that the Solution Channel Agreement includes a similar waiver of representative claims, although it does not reference PAGA by name. Like the arbitration agreement in Viking River Cruises, it also contains a severability clause. The Solution Channel Agreement's waiver of representative actions, like the "representative PAGA" action waiver in the arbitration agreement in Viking River Cruises, is ambiguous as to the meaning of "representative" as it applies to PAGA actions. Accordingly, Judge Shubb concluded that the Solution Channel Agreement does not bar any portion of Harper's PAGA claims or require arbitration thereof. Charter's motion to compel arbitration of Harper's PAGA claims is, therefore, denied. The appellate case is captioned as Lionel Harper, et al. v. Charter Communications, LLC, Case No. 22-16429, in the United States Court of Appeals for the Ninth Circuit, filed on September 20, 2022. The briefing schedule in the Appellate Case states that: -- Appellant Charter Communications, LLC Mediation Questionnaire was due on September 27, 2022; -- Transcript is due on November 18, 2022; -- Appellant Charter Communications, LLC opening brief is due on December 29, 2022; -- Appellees Pedro Abascal, Lionel Harper, Daniel Sinclair, Hassan Turner and Luis Vazquez answering brief is due on January 30, 2023; and -- Appellant's optional reply brief is due 21 days after service of the answering brief. [BN] Plaintiffs-Appellees LIONEL HARPER, et al., individually and on behalf of all others similarly situated, are represented by: Jamin S. Soderstrom, Esq. SODERSTROM LAW PC 1 Park Plaza, Suite 600 Irvine, CA 92614 Telephone: (949) 667-4700 Defendant-Appellant CHARTER COMMUNICATIONS, LLC is represented by: Joseph Scott Carr, Esq. KABAT CHAPMAN & OZMER LLP 515 S. Flower Street, 36th Floor Los Angeles, CA 90071 Telephone: (404) 213-3987 - and - Joseph W. Ozmer, II, Esq. KABAT CHAPMAN & OZMER LLP 171 17th Street NW, Suite 1550 Atlanta, GA 30363 Telephone: (470) 447-0603 CHILD DEVELOPMENT: Gambill Files Suit Over Discriminatory Practices ------------------------------------------------------------------- DEBORAH GAMBILL, SUPRENA HAWKINS, NENA HUDSON-ESTRELLA, ROYAL JOHNSON, VERONICA MCCALLUM, DEASIA MOORE, MILTON ORTIZ, MARTHA TATE, AND GARRY WILLIAMS, Plaintiffs v. Child Development Centers, Inc., Defendant, Case No. 1:22-cv-00286-SPB (W.D. Pa., Oct. 5, 2022) is a class action against the Defendant for violations of the Title VII of the Civil Rights Act of 1964. The Plaintiffs are initiating this action to address Defendant's deliberate misstatements and the concealment of evidence which demonstrate that the company's application of facially neutral policies during the COVID-19 pandemic had the effect of "whitewashing" the racial composition of its workforce. Indeed, as of April 8, 2020, Defendant received at least $662,500 in pandemic relief funds while business operations were interrupted due to mandated quarantine and alleged decreased enrollment. Thereafter, the Defendant utilized these circumstances to terminate the vast majority of its minority employees, including Plaintiffs, and replaced them with white employees. The Defendant continues to represent that the termination of any employees following the onset of the COVID-19 pandemic was based on legitimate and nondiscriminatory business reasons, says the suit. The Plaintiffs are seeking to hold Defendant accountable for its actions which have disproportionately impacted the company's non-white employees for years. Child Development Centers, Inc. is a private, non-profit organization that provides child care and early childhood education.[BN] The Plaintiffs are represented by: Joshua P. Ward, Esq. Sammy Y. Sugiura, Esq. J.P. WARD & ASSOCIATES, LLC 201 South Highland Ave Suite 201 Pittsburgh, PA 15206 Telephone: (412) 545-3016 Facsimile: (412) 540-3399 E-mail: jward@jpward.com sammys@jpward.com CO-OPTIONS INC: Court Denies Bids to Dismiss Urgent One TCPA Suit ----------------------------------------------------------------- In the case, URGENT ONE MEDICAL CARE, PC, doing business as DAVID E. SIMAI PEDIATRICS, individually and on behalf of the class defined herein, Plaintiff v. CO-OPTIONS, INC., doing business as THE SAMPLING STORE; KRAFT HEINZ FOODS COMPANY; and KRAFT FOOD BRANDS LLC, Defendants, Case No. 21-CV-4180 (JS) (SIL) (E.D.N.Y.), Judge Joanna Seybert of the U.S. District Court for the Eastern District of New York denies the Dismissal Motions filed by Defendants Co-Options, Kraft Heinz Foods Co., and Kraft Foods Group Brands LLC. Urgent One, individually and on behalf of all others similarly situated, commenced this junk-fax advertising action, pursuant to the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Section 227, against Defendants Co-Options and the Kraft Defendants. Because the Plaintiff contends the Faxes violate the TCPA's express prohibition on unsolicited fax advertising, Dr. David Simai, as Urgent One's owner, initiated this putative class action on July 26, 2021. More particularly, he alleged the "Plaintiff and each class member suffered damages as a result of receipt of the unsolicited faxes, in the form of time, paper and ink or toner consumed as a result. Furthermore, the Plaintiff's statutory right of privacy was invaded." The Plaintiff brought his TCPA claim: on behalf of a class, consisting of (a) all persons (b) who, on or after a date four years prior to the filing of this action (28 U.S.C. Section 1658), (c) were sent faxes by or on behalf of Defendant Co-Options Inc., (d) promoting commercially available goods or services (d) where the Defendants do not have evidence of consent or an established business relationship prior to the sending of the faxes. The Plaintiff also defines a subclass, consisting of class members sent a fax on behalf of the Kraft Defendants. After timely amending the Complaint solely to "substitute Urgent One as Plaintiff in place of Dr. Simai," Co-Options and the Kraft Defendants each moved to dismiss the Plaintiff's First Amended Complaint ("FAC") or, alternatively, to strike the class allegations; the Plaintiff opposed the Dismissal Motions. On April 7, 2022, the Court referred the fully-briefed Dismissal Motions to Magistrate Judge Locke. On June 1, 2022, the Magistrate Judge issued his R&R, recommending: (1) disregarding the declarations of four putative class members submitted by the Defendants; (2) rejecting the Defendants' Rule 12(b)(1) arguments regarding lack of standing since "Urgent One specifically alleges that it, and each class member suffered a 'concrete injury' in the form of 'time, paper and ink or toner consumed as a result' of receiving the Faxes"; (3) rejecting the Defendants' Rule 12(b)(6) arguments, which rely heavily upon a not-yet-final declaratory ruling issued by the Federal Communication Commission's Consumer & Governmental Affairs Bureau, known as the "AmeriFactors Ruling," since "the Second Circuit has not yet addressed the AmeriFactors Ruling" and the AmeriFactors Ruling is inconsistent with binding Second Circuit precedent, i.e., Gorss Motels, Inc. v. Lands' End, Inc., 997 F.3d 470 (2d Cir. 2021); and (4) rejecting the Defendants' Rule 12 (f) arguments finding they "have failed to carry their burden on their motions to strike" in light of the Plaintiff having "established the existence of legal and factual issues which, if permitted to be borne out by the discovery process, might allow the Class Claim to succeed" and, alternatively, finding the Defendants "have failed to demonstrate that the Class Claim definition would include members who lack Article III standing." In sum, Magistrate Judge Locke recommends the Court denies the Defendants' Dismissal Motions in their entireties. Co-Options first contends that the Magistrate Judge erred by misallocating the burden of proof regarding jurisdiction from the Plaintiff to the Defendants and improperly concluding "that Co-Options has failed to prove a lack of jurisdiction." In a similar vein, relying upon the receipt-of-Faxes-by-email distinction, it argues the R&R errs by not addressing whether putative class members have suffered an injury sufficient to trigger Article III standing, since receipt of faxes by email does not entail the waste of paper and ink or the occupation of fax machines and fax lines. Relatedly, Co-Options would have the Court finds error in the Report's failure to consider whether businesses have privacy interests to assert as a basis for Article III standing. It further alleges error in the Report on the basis that it "failed to consider Denney v. Deutsche Bank, AG, 443 F.3d 253 (2d Cir. 2006), in its jurisdictional analysis," arguing it "is central to the question of whether the Court has subject jurisdiction over the putative class claim in this case." Regarding its Rule 12(b)(6) motion to dismiss, i.e., that putative class members who receive faxes as emails do not have TCPA claims to assert, Co-Options asserts the Magistrate Judge erred in concluding the AmeriFactors Ruling is not binding on this Court. Finally, it contends the R&R is erroneous because it ignores an overly broad class "that reaches four years of business conduct completely unrelated to the facts the Plaintiff alleged regarding the Defendants' July 2020 'Creative Roots' ad campaign.'" As a preliminary matter, the Kraft Defendants assert that it was error for Magistrate Judge Locke to refuse to consider the Declarations in determining that the Plaintiff has plausibly alleged the suffering of a concrete injury by each putative class member. As to their Rule 12(b)(1) Motion seeking dismissal for lack of standing, they would similarly fault the Magistrate Judge for not considering their proffered 2017 International Data Corp. Survey in the context of their Rule 12(b)(1) motion as "authority" that businesses are transitioning from phone-line faxes to digital-based fax services and (again, implicitly,) therefore, that the Plaintiff cannot show the purported class members have suffered any concrete injury warranting a showing of Article III standing. As to their Rule 12(b)(6) Motion, the Kraft Defendants content Magistrate Judge Locke erred in relying upon the Second Circuit's Gorss decision and not the AmeriFactors Ruling. As to their Rule 12(f) Motion to Strike, they assert that the R&R "largely ignores" their arguments that: (1) "the class should not include those who received the Faxes through online fax services"; (2) "the alleged class definition encompasses a class broader than the facts pleaded" in the FAC; and (3) the Plaintiff "improperly alleges a 'fail-safe' class." Finally, they claim the R&R incorrectly asserts that certain factual issues have been conceded when no such concessions have been made. As an initial matter, the Plaintiff asserts that in raising objections to the R&R, the "Defendants largely restate the arguments previously presented," thereby implying that the appropriate standard of review is clear error. As to the Defendants' Rule 12(b)(6) Dismissal Motions, he would have the Court overrules the Defendants' objections to the Magistrate Judge's rejection of the AmeriFactors Ruling, highlighting that the "R&R makes a considered and in depth analysis of the AmeriFactors Ruling -- which is currently on appeal and pending review by the full FCC," and "explains in detail how a review of binding precedent in fact weighs against adherence to the AmeriFactors decision." As to the Defendants' motion to strike the class allegations, unsurprisingly, the Plaintiffs maintain the Report got it right; Defendants have failed to carry their burden and the "Plaintiff has established the existence of legal and factual issues which, if permitted to be borne out by the discovery process, might allow the Class Claim to succeed." As a preliminary matter, Judge Seybert has reviewed the underlying Dismissal Motions and agrees with the Plaintiff's contention that the Defendants' Objections are largely reiterations of the arguments they advanced in support of those Dismissal Motions. Hence, she reviews the R&R for clear error. To the extent the Defendants argue it was erroneous for the Magistrate Judge not to consider Co-Options' proffered Declarations in ruling on the Dismissal Motions, Judge Seybert overrules all objections on that basis. Indeed, by averring to having "agreed to receive fax offers like this one from the Sampling Store," each declarant also establishes exclusion from the proposed class. In turn, any distinction regarding the method of receipt of those faxes has no relevance. To the extent the Defendants would assign error to the Report because, in ruling on their Dismissal Motions, the Magistrate Judge would not consider other proffered evidence regarding the receipt of faxes via emails and/or cloud servers, e.g., the 2017 Survey, those objections are also overruled. Judge Seybert says at this nascent stage of the case, such proffered evidence is immaterial because it does not contradict plausible allegations that are themselves sufficient to show standing. Based upon his plausible allegations, the Plaintiff has stated an injury in fact, which is: (1) concrete, particularized, and actual; (2) fairly traceable to the Defendants' challenged actions; and (3) likely to be redressed by a favorable decision, thereby establishing standing. To the extent Defendants object to the Magistrate Judge's recommendation that the Defendants' Rule 12(b)(6) Dismissal Motions be denied based upon his refusal to apply the AmeriFactors Ruling, those objections are overruled. As the Report correctly observes, the Second Circuit has not specifically addressed the AmeriFactors Ruling, which is currently on appeal and pending review by the full FCC. To the extent the Defendants rely upon Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006), in their alternative bid to strike the class allegations, and assert the Magistrate Judge erred by disregarding same, Judge Seybert overrules that objection. She holds that Denney was decided in the context of a fairness hearing on a final class action settlement, which included certifying the class, and not on a motion to dismiss before discovery and before any motion for class certification has been made. There is relevant significance in these different procedural postures. For now, the "Plaintiff has established the existence of legal and factual issues which, if permitted to be borne out by the discovery process, might allow the Class Claim to succeed." Therefore, the Defendants are unable to meet their burden in moving to strike. To the extent not specifically addressed, Judge Seybert has considered the Defendants remaining objections, but finds them unpersuasive. Rather, finding no clear error in Magistrate Judge Locke's thorough and well-reasoned Report, she overrules all of the Defendants' objections. Accordingly, in the absence of clear error, the Defendants' Objections are overruled, the R&R is adopted in its entirety, and Defendant Co-Options' Dismissal Motion and the Kraft Defendants' Dismissal Motion are each denied in their entirety. A full-text copy of the Court's Sept. 30, 2022 Adoption Order is available at https://tinyurl.com/ms9ywbna from Leagle.com. Adam J. Fishbein, Esq. -- fishbeinadamj@gmail.com -- ADAM J. FISHBEIN, P.C., Woodmere, New York. Daniel A. Edelman, Esq., Dulijaza (Julie) Clark, Esq., EDELMAN, COMBS, LATTURNER & GOODWIN, LLC Chicago, Illinois, for Plaintiff. Stephen R. Markman, Esq. -- stephen@markmanlaw.com -- LAW OFFICES OF STEPEHN R. MARKMAN, New York, New York C. Sanders McNew, Esq. -- mcnew@mcnew.net -- McNEW P.A., Boca Raton, Florida, for Defendant Co-Options. Tara Pehush, Esq. -- tara.pehush@klgates.com -- Justin Roeber, Esq., David R. Osipovich, Esq. -- david.osipovich@klgates.com -- K&L GATES LLP New York, New York. Molly K. McGinley, Esq. -- mmcginley@honigman.com -- HONIGMAN LLP Chicago, Illinois, for the Kraft Defendants. CORNELL UNIVERSITY: Faber, Rahman File Class Certification Bid -------------------------------------------------------------- In the class action lawsuit captioned as ALEC FABER, individually and on behalf of all others similarly situated; and AHNAF RAHMAN, individually and on behalf of others similarly situated, v. Cornell University, Case No. 3:20-cv-00467-MAD-ML (N.D.N.Y.), the Plaintiffs ask the Court to enter an order granting their motion for class certification and appointment of class representatives and counsel. The Plaintiffs contend that their move for class certification is based on the requirements of Federal Rules of Civil Procedure 23(a), as well as pursuant to Rule 23(b)(2) and (3) and (c)(4), for a class defined as: "All students who enrolled at Cornell University and paid a Student Health Fee and/or Student Activity Fee for the Spring 2020 semester." The Plaintiffs also move to certify each named Plaintiff as class representative and Plaintiffs' counsel, Poulin | Willey | Anastopoulo and Lynch Carpenter, LLP, as co-class counsel. Cornell University is a private research university that provides an exceptional education for undergraduates and graduate and professional students. A copy of the Plaintiffs' motion dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3Ex3XqO at no extra charge.[CC] The Plaintiffs are represented by: (Eddie) Jae K. Kim, Esq. LYNCH CARPENTER LLP 117 East Colorado Blvd., Suite 600 Pasadena, CA 91105 Telephone: (626) 550-1250 E-mail: ekim@lcllp.com - and - Blake G. Abbott, Esq. Paul J. Doolittle, Esq. Eric M. Poulin, Esq. Roy T. Willey, IV, Esq. POULIN | WILLEY | ANASTOPOULO, LLC 32 Ann Street Charleston, SC 29403 Telephone: (843) 614-8888 Facsimile: (843) 494-5536 E-mail: eric@akimlawfirm.com roy@akimlawfirm.com blake@akimlawfirm.com pauld@akimlawfirm.com - and - John C. Cherundolo, Esq. CHERUNDOLO LAW FIRM, PLLC AXA Tower One 15th Floor 100 Madison Street Syracuse, NY 13202 - and - Gary F. Lynch, Esq. Edward W. Ciolko, Esq. LYNCH CARPENTER LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Telephone: (412) 322-9243 E-mail: gary@lcllp.com eciolko@lcllp.com - and - Edward Toptani, Esq. TOPTANI LAW OFFICES 375 Pearl St Ste 1410 New York, NY 10038 Telephone: 212-699-8930 Facsimile: 212-699-8939 E-mail: edward@toptanilaw.com COWEN INC: Monteverde Firm Probes Possible Securities Violations ---------------------------------------------------------------- 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: Cowen Inc. (Nasdaq: COWN), relating to its proposed acquisition by TD Bank Group. Under the terms of the merger, COWN shareholders are expected to receive $39.00 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/cowen-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 over 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] DENVER SHERIFFS DEPARTMENT: Bid for Class Certification Due Nov. 30 ------------------------------------------------------------------- In the class action lawsuit captioned as Johnson v. Denver Sheriffs Department, Case No. 1:20-cv-01795 (D. Colo.), the Hon. Judge John L. Kane entered an order granting joint motion of the Parties to modify amended stipulated scheduling and discovery order in connection with deadlines for class discovery and motion for class certification: -- The Amended Stipulated Scheduling and Discovery Order is amended again to reflect: Discovery Cutoff, Class Phase, is extended to November 15, 2022; -- The Deadline for 30(b)(6) Deposition of Defendant Denver for purposes of Class Discovery is November 15, 2022; -- Motion for Class Certification is due on or before November 30, 2022; -- Response to Motion for Class Certification is January 4, 2023; -- Reply in Support of Class Certification is January 18, 2023. The nature of suit states Prisoner Petitions -- Habeas Corpus -- Civil Rights. The Denver Sheriff Department is a criminal justice agency based in Denver, Colorado, United States. The department is responsible for the care and custody of inmates within Denver's jail system, for the city's court services, and other responsibilities assigned by the executive director of safety.[CC] DFINITY USA: Seeks Disqualification of Freedman as Lead Plaintiff ----------------------------------------------------------------- In the class action lawsuit captioned as DANIEL VALENTI, Individually and on Behalf of All Others Similarly Situated, v. DFINITY USA RESEARCH LLC, DFINITY FOUNDATION and DOMINIC WILLIAMS, Case No. 3:21-cv-06118-JD (N.D. Cal.), the Defendants ask the Court to enter an order that Roche Freedman be disqualified from representing Lead Plaintiff and the putative class in this Action. The Defendants contend that Mr. Roche details his misuse of the legal system to advance the commercial interests of Ava Labs, a cryptocurrency client in which he owns substantial equity. Mr. Roche boasts that he uses litigation as a tool for competition" by: (1) filing lawsuits against Ava Labs' competitors on behalf of purported classes he refers to as "10,000 idiots," (2) obtaining confidential information by "su[ing] half the companies in this space" in order to "seethe insides" of other blockchain companies to advise Ava Labs, (3) "making sure the SEC and the CFTC have other magnets to go after" to deflect attention from Ava Labs, and (4) enforcing the personal vendettas of Ava Labs' CEO. DFINITY Foundation is a not-for-profit organisation developing the Internet Computer. The Internet Computer is a public blockchain platform which is based on a network of sub-blockchains governed by an ownerless master blockchain. A copy of the Defendants' motion dated Oct. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3EzL9qW at no extra charge.[CC] The Defendants are represented by Antony L. Ryan, Esq. Kevin J. Orsini, Esq. Lauren M. Rosenberg, Esq. CRAVATH, SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, New York 10019 Telephone: (212) 474-1000 Facsimile: (212) 474-3700 E-mail: aryan@cravath.com korsini@cravath.com lrosenberg@cravath.com - and - Michael E. Liftik, Esq. Emily C. Kapur, Esq. QUINN EMANUEL URQUHART & SULLIVAN LLP 1300 I Street, Suite 900 Washington, D.C. 20005 Telephone: (202) 538-8000 E-mail: michaelliftik@quinnemanuel.com emilykapur@quinnemanuel.com DOLLAR BANK: Court Narrows Claims in TCS Suit --------------------------------------------- In the class action lawsuit captioned as THE COLUMBIAN SPOT, LLC, and KITTY JOHNSON, individually and on behalf of all others similarly situated, v. DOLLAR BANK, Case No. 2:21-cv-01171-CB (W.D. Pa.), the Hon. Judge Cathy Bissoon entered an order granting in part and denying in part motion to dismiss filed by the Defendant Dollar Bank: -- The Motion to Dismiss Count 3 is granted . -- Count 3 is dismissed without prejudice. -- The Motion is denied in all other respects. -- Once Dollar Bank answers, the Court will enter an order setting an initial case management conference. The Plaintiffs have brought this putative class action challenging Dollar Bank's alleged policy and practice of charging its customers improper fees in violation of federal law and in a manner not contracted for. Columbian Spot is a Pennsylvania limited liability company that had a Dollar Bank checking account during the class period. Dollar Bank is a Federal Savings Bank. It is headquartered in Pittsburgh, Pennsylvania and has branches in Ohio, Pennsylvania and Virginia. The Plaintiffs, and all members of the proposed Classes, contracted with Dollar Bank for checking account services, including debit card services. A copy of the Court's order dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3SMvngP at no extra charge.[CC] DUVAL COUNTY SCHOOL: Helm Loses Bid to Certify Class Action ----------------------------------------------------------- In the class action lawsuit captioned as KYLE HELM, et al., v. DUVAL COUNTY SCHOOL BOARD (DCSB), Case No. 3:21-cv-00900-TJC-LLL (M.D. Fla.), the Hon. Judge Timothy J. Corrigan entered an order denying the Plaintiffs' motion for class action certification without prejudice: "Parents or legal guardians, who are residents of Duval County, Florida, with children between the ages of five and 18, who attend or previously attended a Duval County Public School between August and December 2021, and were subject to the Emergency Rule adopted August 23, 2021 (Mask Mandate); but would have chosen to have their children attend school unmasked without any pre-conditions if given the option." The parties shall confer and file a Case Management Report no later than October 20, 2022. In sum, the Plaintiffs have not affirmatively demonstrated their compliance with all the Rule 23 requirements, the Court says. This case is again before the Court, this time in the context of a motion for class certification. The Plaintiffs, a group of parents and children challenging DCSB mask policy, filed their Motion for Class Action Certification, to which DCSB responded. The Plaintiffs' Second Amended Complaint alleges that DCSB’s mask policy violated Plaintiffs' constitutional rights. A copy of the Court's order dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3fPSrfY at no extra charge.[CC] EBIX INC: S.D. New York Dismisses Saraf's Second Amended Complaint ------------------------------------------------------------------ In the case, RAHUL SARAF, individually and on behalf of all other similarly situated, Plaintiff v. EBIX, INC., et al., Defendants, Case No. 21-CV-1589 (JMF) (S.D.N.Y.), Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York grants the Defendants' Motion to Dismiss the Second Amended Complaint. In this putative class action, Lead Plaintiff Saraf brings securities fraud claims against Ebix and two Ebix executives, Robin Raina and Steven Hamil (the "Individual Defendants"). The operative Second Amended Complaint alleges that, between Nov. 9, 2020, and Feb. 19, 2021, the Defendants made material misstatements regarding Ebix's internal control over its financial reporting, in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. Sections 78j(b), 78t(a); and Securities and Exchange Commission ("SEC") Rule 10b-5 ("Rule 10b-5"), 17 C.F.R. Section 240.10b-5. Ebix is a Delaware corporation headquartered in Georgia; its common stock trades on the NASDAQ exchange. It provides "software and e-commerce services" to a variety of industries worldwide. Raina is Ebix's CEO and Chairman of the Board. Hamil was, during the class period, its Chief Financial Officer. In 2017, Ebix acquired an 80% stake in ItzCash, an Indian digital payment company subsequently renamed EbixCash. In its press release announcing the acquisition, Ebix noted that ItzCash was "India's leading payment solutions Exchange" and emphasized that ItzCash was "the only profitable payment solutions provider out of all its peers." According to the Second Amended Complaint, EbixCash's portfolio includes "domestic and international money remittance, foreign exchange (Forex), travel, prepaid and gift cards, utility payments, software solutions for lending and wealth management in India and other markets." EbixCash's revenues are derived "primarily from the sales of prepaid gift cards and consideration paid by customers for financial transaction services, including services like transferring or exchanging money." On Nov. 9, 2020, the first day of the class period, Raina informed investors during Ebix's third quarter 2020 earnings call that "EbixCash revenues grew 268% in the third quarter of 2020 versus the third quarter of 2019," and grew 82% compared to the second quarter of 2020. He advised investors that EbixCash was outperforming its "key competitors," which "delivered much less top line growth than EbixCash." In its Form 10-Q for the third quarter of 2020, Ebix further noted that the "$98 million increase in payment solutions revenue, primarily in India, reflects the strong demand for prepaid cards and other electronic payment solutions since the COVID-19 pandemic arose." Throughout this period, the Individual Defendants planed an IPO for EbixCash. According to a confidential witness, Ebix was "betting the ranch on EbixCash." The statements at the heart of Saraf's claims are certifications in Ebix's Form 10-Q for the third quarter of 2020. Additionally, Raina and Hamil attested in their Sarbanes-Oxley ("SOX") certifications that, based on their knowledge, the Form 10-Q "did not contain any untrue statement of a material fact." Further, they both confirmed that they were responsible for designing the Company's internal control procedures, designed such procedures "to provide reasonable assurance regarding the reliability of financial reporting," evaluated the internal control procedures, and disclosed to the Company's auditors "all significant deficiencies and material weaknesses in the design or operation of" the internal control procedures. In November 2020, Ebix's external auditor, RSM US LLP ("RSM"), began an audit of the Company's 2020 financials. On Feb. 15, 2021, however, RSM resigned without having completed the audit. RSM informed the Company that it was resigning due to its inability, "despite repeated inquiries, to obtain sufficient appropriate audit evidence that would allow it to evaluate the business purpose of significant unusual transactions that occurred in the fourth quarter of 2020." Moreover, it informed Ebix in writing that the Company's "internal control over financial reporting was not effective as of Dec. 31, 2020 due to the identification of a material weakness." The weakness, according to RSM, was Ebix's failure to "design or implement the necessary procedures and controls over the gift or prepaid card revenue transaction cycle sufficient to prevent or detect a material misstatement." Following disclosure of RSM's resignation, Ebix's stock price fell approximately 40%. After RSM resigned, Ebix hired a new auditor -- K.G. Somani & Co. ("KGS"). Ebix authorized RSM to respond to any inquiries from KGS. On April 27, 2021, KGS issued a "clean, unqualified audit opinion" and did not identify any material weaknesses in the Company's internal control. Ebix also engaged outside an outside law firm and consulting firm to look into the issues raised by RSM's resignation. Based on their review, Ebix determined that "no steps were necessary with respect to any gift card business issues raised by RSM." A complaint alleging securities fraud will survive "only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged." In this Circuit, a plaintiff may satisfy the scienter pleading requirement in either of two ways: "by alleging facts (1) showing that the defendants had both motive and opportunity to commit the fraud or (2) constituting strong circumstantial evidence of conscious misbehavior or recklessness." The former requires a plaintiff to allege that the defendant "benefitted in some concrete and personal way from the purported fraud." The latter requires allegations of either actual intent or "conscious recklessness -- i.e., a state of mind approximating actual intent, and not merely a heightened form of negligence." More specifically, a plaintiff must allege conduct by a defendant that is, "at the least, conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it." As a general matter, courts have approved of claims when plaintiffs "have specifically alleged defendants' knowledge of facts or access to information contradicting their public statements. Under such circumstances, defendants knew or, more importantly, should have known that they were misrepresenting material facts related to the corporation." Applying the foregoing standards, Judge Furman concludes that Saraf's claims must be and are dismissed for failure to adequately allege that any Defendant acted with the requisite state of mind. For starters, Saraf's "motive and opportunity" arguments -- which he makes only as to Raina -- are easily rejected. He does not allege that Raina sold shares during the class period. Put simply, Saraf fails to allege that any Defendant received a "concrete and personal" benefit from the alleged scheme. Accordingly, his motive and opportunity arguments fail. Mr. Saraf's "conscious misbehavior or recklessness" arguments require more discussion, but they too ultimately fall short. Judge Furman opines that Saraf does not allege that EbixCash constituted "nearly all" of Ebix's business. Moreover, core-operations allegations are "supplementary"; that is, they are not "independently sufficient means to plead scienter." And in the case, Saraf does not allege other supporting facts sufficient to establish scienter. Indeed, Saraf makes no non-conclusory showing that Raina or Hamil had access to "specific contradictory information at the same time" that they signed the Form 10-Q. The Second Amended Complaint contains no non-conclusory allegations that RSM informed the Individual Defendants prior to its resignation in February 2021, let alone in or before November 2020, that it had identified a material weakness in Ebix's internal control. Nor does Saraf allege that any of the confidential witnesses brought their concerns about Ebix's accounting to either Raina or Hamil before they issued the Form 10-Q. And, without any showing that Raina or Hamil had access to information suggesting material weaknesses in Ebix's internal control, the fact that they were "continually monitoring" the effects of COVID-19 on their internal controls does not suggest that they were aware of facts contradicting their Form 10-Q statements. Put simply, Saraf fails to allege that Raina or Hamil knew that the Form 10-Q statements were false or otherwise misleading. Nor, absent evidence of contemporaneous knowledge of falsity, do Raina's and Hamil's SOX certifications support a finding of scienter. Saraf fails to point to any document, report, or oral statement showing that the Individual Defendants knew at the time that their statements regarding the effectiveness of Ebix's internal control were false or misleading. Accordingly, he does not adequately plead scienter on that basis, the Court holds. Mr. Saraf's other effort to establish conscious misbehavior or recklessness -- on the ground that the Defendants recklessly disregarded red flags regarding the Company's insufficient internal control -- fares no better. Judge Furman holds that Saraf makes no allegations at all about a reduction in the size of the EbixCash accounting team. His allegations regarding Ebix's growth do not support an inference of scienter that is at least as cogent as a non-fraudulent inference. More broadly, he does not describe the types of red flags that could support an inference of recklessness. As such, Saraf fails to show that Raina or Hamil "should have known that they were misrepresenting" the strength of the company's internal control in their SOX certifications. Judge Furman further opines that Saraf's allegations about other actions or wrongs do not support an inference that the Individual Defendants knew about or recklessly disregarded material weaknesses in internal control. Saraf "does not explain how any of these actions or offenses are tied" to the allegedly misleading Form 10-Q statements. Nor does he allege that Ebix has either admitted to weakness in its internal controls or restated its 2020 financials. Finally, Saraf points to the resignation of RSM to support his scienter arguments. But RSM's resignation in February 2021 says nothing about the knowledge (or lack thereof) of Raina and Hamil three months earlier, in November 2020. That is, there is no evidence or allegation that RSM advised Defendants of weaknesses in Ebix's internal control in or before November 2020. To the contrary: RSM's audit began, at the earliest, in November 2020. For these reasons, the cases cited by Saraf are inapposite. In addition to the resignation of an independent auditor, each of these cases also included well-pleaded facts showing that the defendant company was aware of weak internal controls over their financial reporting. In sum, Judge Furman holds that Saraf does not adequately plead scienter with respect to either Raina or Hamil. It follows that no scienter can be "imputed to Ebix." Accordingly, his claims all fail as a matter of law. For the reasons he stated, Judge Furman dismisses Saraf's claims under the Exchange Act and SEC Rule 10b-5. That leaves only the question of whether Saraf should be granted leave to amend his complaint, which he has requested. Notably, Saraf already had two opportunities to amend, and he does not identify facts in his possession that would cure the defects discussed above. That said, mindful that leave to amend a complaint should be freely given "when justice so requires," and that "complaints dismissed under Rule 9(b)" or the PSLRA "are almost always dismissed with leave to amend," Judge Furman grants Saraf one final chance to amend. Saraf will file any Third Amended Complaint within 30 days of the date of the Opinion and Order. The Clerk of Court is directed to terminate ECF No. 64. A full-text copy of the Court's Sept. 30, 2022 Opinion & Order is available at https://tinyurl.com/mvahjahd from Leagle.com. ENVIVA INC: Rosen Law Probes Possible Securities Class Action ------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, continues to investigate potential securities claims on behalf of shareholders of Enviva Inc. (NYSE: EVA) resulting from allegations that Enviva may have issued materially misleading business information to the investing public. SO WHAT: If you purchased Enviva securities you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. The Rosen Law Firm is preparing a class action seeking recovery of investor losses. WHAT TO DO NEXT: To join the prospective class action, go to https://rosenlegal.com/submit-form/?case_id=9162 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. WHAT IS THIS ABOUT: On October 12, 2022, before markets opened, market researcher Blue Orca Capital published a report alleging issues with Enviva. In relevant part, the Blue Orca report alleged that, contrary to Enviva's public representations, Enviva was purchasing wood from clear-cut forests. This, according to the report, would disincentivize large numbers of Enviva customers from purchasing wood pellets from Enviva. Wood pellets produced from clear-cut forests would not qualify for an important 'renewable energy' classification. Furthermore, the Blue Orca report alleged that Enviva was engaging in an equipment-lease scheme to inflate its EBITDA, wherein Enviva would purchase and capitalize equipment, then lease the equipment to loggers who would sell wood pellets to Enviva for a reduced price. This allowed Enviva to lower the cost of materials, allowing Enviva to report artificially boosted EBITDA numbers. On this news, Enviva's share price dropped by $7.74 per share, or approximately 13%, to close at $51.23 per share on October 12, 2022. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources, or any meaningful peer recognition. Many of these firms do not actually litigate securities class actions. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. [GN] EQT CORPORATION: Asbury, et al., File Renewed Bid for Class Status ------------------------------------------------------------------ In the class action lawsuit captioned as PATRICIA ASBURY, ET AL., v. EQT CORPORATION, EQUITRANS, L.P., EQT PRODUCTION COMPANY, and EQT MIDSTREAM PARTNERS, L.P., Case No. 2:18-cv-01005-CB (W.D. Pa.), the Plaintiff asks the Court to enter an order that: 1. The class as defined in the Brief be certified under Rule 23; 2. Domenic Laudato, Jr., be appointed class representative; 3. Any and all issues described in the Brief be certified under Rule 23(c)(4); 4. If necessary, this proceeding and proposed class (or sub- classes), be bifurcated, modified, or amended to the extent necessary by this Court to achieve class certification; 5. Identified counsel be appointed class counsel; and 6. Any and all relief this Court finds just and proper. EQT is an American energy company engaged in hydrocarbon exploration and pipeline transport. It is headquartered in EQT Plaza in Pittsburgh, Pennsylvania. A copy of the Plaintiffs' motion to certify class dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3yoEsUZ at no extra charge.[CC] The Plaintiff is represented by: Jordan H. Walker, Esq. SEVER STOREY, LLP 881 3rd Ave. SW, Suite 101 Carmel, IN 46032 Telephone: (317) 575-9942 - and - Elizabeth M. Tarasi, Esq. Louis M. Tarasi, Jr., Esq. TARASI & TARASI P.C. 510 Third Avenue Pittsburgh, PA 15219 FAST PACE: Hutchinson Suit Seeks to Certify FLSA Collective ----------------------------------------------------------- In the class action lawsuit captioned as CHRISTY HUTCHINSON, CHRISTINA COURTNEY, and KAREN HARRIS, Individually and On Behalf of All Others Similarly Situated, v. FAST PACE MEDICAL CLINIC PLLC d/b/a FAST PACE HEALTH, Case No. 3:22-cv-511 (M.D. Tenn.), the Plaintiffs asks the Court to enter an order: 1. Conditionally certifying an FLSA Collective, defined as: "All persons who are or were, at any time within the period of 3 years preceding the commencement of this action through the date of judgment, employed by Defendant in any of its healthcare centers in the United States as hourly-paid, non-exempt healthcare workers, who held job positions including but not limited to Clinical Technician, Medical Assistant, Certified Medical Assistant, Licensed Practical Nurse, Medical Receptionist, and X-ray Technician, and are/were subject to Defendant’s automatic meal-break deduction policy, and/or received quarterly bonuses that were not included in their overtime rates"; 2. Directing the Defendants to identify all putative members of the Collective by providing their names, last known addresses, dates, and locations of employment, job titles, phone numbers, and e-mail addresses, in an electronic and importable format such as an unrestricted Excel spreadsheet, within 14 calendar days of the entry of this Order; 3. Approving the Plaintiffs' proposed "Notice of Right to Join Lawsuit" and "Consent to Join Lawsuit" Form and proposed language of the email and text message to be sent to the putative members of the Collective; 4. Authorizing the Plaintiffs' Counsel to direct a claims administrator to maintain a case website displaying the text of the approved "Notice of Right to Join Lawsuit" and "Consent to Join Lawsuit" forms, through which members of the Collective may sign their Consent to Join forms electronically; 5. Authorizing Plaintiffs' counsel to disseminate the approved notice to the putative members of the Collective via U.S. Mail, e-mail and text message, and to send a reminder notice via e-mail and text message halfway through the notice period; and 6. Affording the putative members of the Collective 60 days from the date the notice is issued to join this case by completing either paper or electronic consent forms. Fast Pace provides medical services. The Hospital offers treatment for a wide range of illnesses, injuries, and common conditions. A copy of the Plaintiffs' motion dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3e9epu5 at no extra charge.[CC] The Plaintiff is represented by: Jason T. Brown, Esq. Nicholas Conlon, Esq. BROWN, LLC 111 Town Square, Suite 400 Jersey City, NJ 07310 Telephone: (877) 561-0000 Facsimile: (855) 582-5297 E-mail: jtb@jtblawgroup.com nicholasconlon@jtblawgroup.com - and - Justin G. Day, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC First Tennessee Plaza 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (856) 247-0080 Facsimile: (865) 522-0049 E-mail: jday@milberg.com FINAL EXPENSE: Faces Suit Over Unsolicited Telemarketing Calls -------------------------------------------------------------- Kelly Mehorter at classaction.org reports that a proposed class action alleges Final Expense Assistant and TZ Insurance Solutions have illegally placed unsolicited telemarketing calls to phone numbers they supposedly obtained through the ruse of a sweepstakes. According to the 19-page case, telemarketer Final Expense and insurance broker TZ "inundated" a Florida woman's cell phone with unwanted telemarketing calls throughout the early months of 2020, even though her number had been registered on the National Do Not Call registry. The lawsuit contends that the companies obtained the plaintiff's phone number in January 2020 after her name and phone number were entered into Super-Sweepstakes.com for the chance to "win $50,000," although the consumer claims to not recall entering the contest. Shortly after entering the sweepstakes, the plaintiff began to receive an onslaught of calls from Final Expense on behalf of TZ, the case alleges. The calls apparently solicited burial and "final expense" insurance, which the plaintiff found to be "morbid and unsettling," the complaint states. "Rather than winning money, Plaintiff and the putative class member received disruptive and unwanted telemarketing calls regarding the unsettling topic of burial insurance," the filing scathes. The suit alleges the companies have violated the Telephone Consumer Protection Act (TCPA) by illegally contacting phone numbers registered on the Do Not Call Registry without securing consent through a "clear and conspicuous disclosure." Per the complaint, Final Expense tried to persuade the plaintiff that she had provided express written consent to receive the telemarketing calls. The telemarketer showed the plaintiff a "Trusted Form" document, which the company claimed indicated that her information was used to "opt-in" to the sweepstakes, the case asserts. As the filing tells it, the "opt-in" page contained "a hyperlink on the camouflaged words 'marketing partners,' which directs a visitor who clicks the hyperlink to a webpage listing hundreds of companies, including Final Expense." The suit contests that the "sweepstakes" website exists merely to obtain consumer data. "The Super-Sweepstakes website was designed to present a loud, clear and conspicuous promotion of a 'sweepstakes' to win $50,000 with a conspicuous [sic], overshadowed and camouflaged disclosure as to the true purpose of the website: obtaining consumer data for telemarketing purposes- including facilitating the sale of 'burial insurance.'" The suit argues that camouflaged "marketing partners" disclosure is not a valid form of consent under the TCPA because it is not apparent to a reasonable consumer. Instead, Final Expense's disclosure is "deliberately deceptive," the complaint alleges. The lawsuit looks to represent the following class: "For the period from four years prior to the filing of this suit until the date a class is certified, all persons in the United States whose: (1) phone numbers in Defendants' records that purportedly show the numbers were submitted through the 'Super-Sweepstakes.com' website; (2), where such person received more than one telephone call on behalf of TZ or from Final Expense (or someone acting on its behalf) during a 12-month period; (3) that person's number was registered on the Do Not Call Registry for more than 31 days at the time the calls were received; and (4) the person's phone number was either a landline or a cell phone, for which the subscriber was an individual, rather than a business." [GN] FORD MOTOR: Faces Class Action Suit Over Faulty Water Pumps ----------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Ford water pump class action lawsuit alleges New York customers are driving faulty Ford and Lincoln vehicles equipped with Cyclone (Duratec) engines. Ford has allegedly refused to issue a water pump recall and has not fixed the vehicles or compensated owners. According to the plaintiff who filed the Ford water pump class action lawsuit, the automaker has known for more than 10 years the Duratec engines are equipped with faulty water pumps. The internal chain-driven water pump allegedly fails prematurely before the end of the useful life of the Ford vehicle. The lawsuit alleges the Ford water pump should last at least 150,000 miles. "Plaintiff and members of the New York Class relied on Ford's representation and had a reasonable expectation that the Internal Water Pump in the Class Vehicles did not require costly maintenance, service, repair, or replacement before the vehicles were driven at least 150,000 miles." -- Ford water pump class action lawsuit The lawsuit says since 2007 through at least 2020, Ford installed the Cyclone engines with the allegedly defective water pumps in thousands of these models. * Ford Edge * Ford Explorer * Ford Flex * Ford Fusion * Ford Taurus * Lincoln MKT * Lincoln MKX * Lincoln MKZ The Ford class action lawsuit was filed by the New York owner of a 2016 Ford Explorer. "Plaintiff Mark Militello ("Plaintiff") brings this class action against Ford, individually and on behalf of all persons in New York who purchased a Class Vehicle from an authorized Ford dealer." Ford Water Pump Replacement Cost Plaintiff Militello bought the 2016 Ford Explorer in March 2019 but in September 2019 the Ford water pump failed from a coolant leak when the Explorer had about 61,300 miles on it. The plaintiff asserts he had to pay about $2,000 to replace the water pump. The water pump class action alleges a Cyclone engine water pump costs about $200, but an owner can easily pay $1,500 for a water pump replacement due to labor costs. The high replacement cost is allegedly caused by the location of the Ford water pump behind the timing cover of the Duratec engine. The plaintiff contends a mechanic must remove the passenger front wheel fender liner, coolant reservoir, air filter box, throttle body, intake manifold, ignition coils, valve covers, engine mount and bracket, AC compressor belt, AC drive tensioner, power steering pump, crank shaft pulley and timing cover. A simple inspection of the Ford water pump can allegedly cost about $1,000, and replacing the water pump can allegedly require about 12-14 hours of work and the replacement of several gaskets and seals. Additionally, the location of the water pump in the Cyclone engine is in line with the crankshaft and over the main body of the engine, allowing coolant to leak from the water pump into the oil pan. This causes oil and coolant to mix and circulate through the Duratec engine, forcing an owner to pay up to $9,000 to replace the engine. The water pump lawsuit also alleges the Ford vehicles contain defective unreinforced bearing oil seals which allow coolant to leak across the mechanical seals to penetrate the bearing seals which contaminate and washes out the bearing lubricant. The Ford water pump class action lawsuit alleges the vehicle warranties are "unconscionable" and the Ford vehicles are allegedly "defective, unsafe, and unfit for their intended use and purpose." The Ford water pump class action lawsuit was filed in the U.S. District Court for the Western District of New York: Mark Militello v. Ford Motor Company. The plaintiff is represented by Robbins Geller Rudman & Dowd LLP, Kessler Topaz Meltzer & Check, LLP, The Miller Law Firm, P.C., Keil & Goodson, P.A., and The Edwards Firm, PLLC. [GN] FUNKO INC: Agrees to Settle Shareholder Class Action for $7 Million ------------------------------------------------------------------- Abraham Jewett, writing for Top Class Actions, reports that Funko Inc. agreed to pay $7 million as part of a settlement made to resolve claims the company misled its investors about its inventory and sales projections. Shareholders argued that Funko misled its investors by saying it accumulated a large amount of inventory that was actually obsolete, Law360 reports. The shareholders claimed further that executives for Funko sold off their shares at an inflated price prior to the company announcing an inventory write-down due to underperforming sales. The Funko class action settlement will allow shareholders to recover 8.7% of the maximum $80 million in estimated damages, according to a motion for final settlement approval. Funko class action alleges CEO engaged in 'illegal insider trading' The Funko class action alleges the company withheld the inventory write-down from its shareholders when it made a statement to them in October 2019, Law360 reports. It also claims Funko's then-CEO Brian Mariotti sold off 400,000 company shares during its secondary public offering. The shareholders argue that Mariotti's move to sell shares was akin to illegal insider trading since it was done with information that was not available to the public, Law360 reports. A consumer filed a similar class action lawsuit against Twitter last month, arguing that the company and its top executives failed to disclose security concerns to the public. The plaintiffs are represented by Michael J. Wernke, Jeremy A. Lieberman and Jennifer Pafiti of Pomerantz LLP; Stephanie M. Beige and Stanley D. Bernstein of Bernstein Liebhard LLP; and Peretz Bronstein of Bronstein Gewirtz & Grossman LLC. The Funko class action lawsuit is Ferreira v. Funko Inc., et al., Case No. 2:20-cv-02319, in the U.S. District Court for the Central District of California. [GN] GOSSAMER BIO: Settlement in Kuhne Suit Approved ----------------------------------------------- In the class action lawsuit captioned as SCOTT KUHNE, individually and on behalf of all others similarly situated, v. GOSSAMER BIO, INC., SHEILA GUJRATHI, M.D., BRYAN GIRAUDO, FAHEEM HASNAIN, JOSHUA H. BILENKER, M.D., KRISTINA BUROW, RUSSELL COX, THOMAS DANIEL, M.D., RENEE GALA, OTELLO STAMPACCHIA, Ph.D., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, SVB LEERINK LLC, BARCLAYS CAPITAL INC., and EVERCORE GROUP L.L.C., Case No. (), the Hon. Judge Dana M. Sabraw entered judgment approving class action settlement as follows: -- Certification of the Class for Purposes of Settlement Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court certifies, solely for purposes of effectuating the Settlement, this Action as a class action on behalf of the Class defined as: "all Persons who purchased Gossamer common stock between February 8, 2019 and December 13, 2019, inclusive, and/or who acquired Gossamer shares pursuant or traceable to Gossamer's Registration Statement and Prospectus in connection with the IPO;" Excluded from the Class are Defendants and their families, the officers, directors, and affiliates, and their legal 6 representatives, heirs, successors or assigns, and any entity in which Defendants have or had a controlling interest. The foregoing exclusion shall not cover Investment Vehicles. Also excluded from the Class are the Persons who timely and validly submitted a request for exclusion from the Class that was accepted by the Court. Lead Plaintiff is hereby appointed, for purposes of effectuating the Settlement only, as representative for the Class for purposes of Federal Rule of Civil Procedure 23. Block & Leviton LLP, who was appointed by the Court to serve as Lead Counsel, is hereby appointed, for settlement purposes only, as counsel for the Class pursuant to Rules 23(c)(1)(B) and (g) of the Federal Rules of Civil Procedure. -- Final Settlement Approval and Dismissal of Claims Pursuant to, and in accordance with, Rule 23 of the Federal Rules of Civil Procedure, this Court hereby fully and finally approves the Settlement set forth in the Stipulation in all respects (including, without limitation: the amount of the Settlement; the Releases provided for therein; and the dismissal with prejudice of the claims asserted against Defendants in the Action), and finds that the Settlement is, in all respects, fair, reasonable and adequate to the Class. Gossamer Bio is a clinical-stage biopharmaceutical company focused on discovering, acquiring, developing and commercializing therapeutics in the disease areas of immunology, inflammation and oncology. A copy of the Court's order dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3RIlcsm at no extra charge.[CC] GRAPEVINE OF NORTH CAROLINA: Filing for Class Cert Bid Extended --------------------------------------------------------------- In the class action lawsuit captioned as GLYMPH-DOZIER et al., v. GRAPEVINE OF NORTH CAROLINA, INC. et al., Case No. 1:21-cv-748-CCE-JEP (M.D.N.C.), the Court entered an order granting joint motion for extension of time. The Court grants the parties' bid for more time within which the parties may file revised Motions for Class Certification and for Preliminary Approval of the Settlement Agreement, supporting memorandums, and Exhibits to the Joint Motion for Preliminary Approval so that the motion can take into account the Court's preferences about the form of the notices. The Court advises the parties that it prefers separate notices to the North Carolina class and the South Carolina class. Grapevine of North Carolina, Inc. operates as a distributor of alcoholic beverages. The Company offers beer, cider, and wine products. A copy of the Court's order dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3yauUNd at no extra charge.[CC] HEATHER MUELLER: Court Certifies Class of Special Children ----------------------------------------------------------- In the class action lawsuit captioned as K.O., et al., v. Heather Mueller, Case No. 0:21-cv-01837-PJS-DJF (D. Minn,), the Hon. Judge Patrick J. Schiltz entered an order: 1. certifying a class of: "All children (a) who are receiving or received special instruction and services pursuant to the Individuals with Disabilities Education Act and Minnesota Special Instruction laws from a local educational agency in Minnesota, (b) who became 21 years old after July 1, 2019, or will become 21 during the pendency of this action, (c) whose special instruction and services ended, or will end, on July 1 after their 21st birthday pursuant to Minn. Stat. section 125A.03(b), (d) whose special instruction and services ended, or will end, before they complete the graduation requirements to receive a regular high school diploma as defined in 34 C.F.R. 300.102(a)(3)(iv)." 2. appointing Plaintiffs K.O. (suing through his parent J.O.) and A.C. (suing through her parents D.C. and J.C.) as class representatives; and 3. appointing Jason H. Kim of Schneider Wallace Cottrell Konecky and Sonja Peterson of the Minnesota Disability Law Center as class counsel pursuant to Federal Rule of Civil Procedure 23(g). A copy of the Court's order dated Sept. 29, 2022 is available from PacerMonitor.com at https://bit.ly/3Eo2fI9 at no extra charge.[CC] HINO MOTOR: GMP Law Commences Emission Class Action Lawsuit ----------------------------------------------------------- Gerard Malouf & Partners (GMP Law) has commenced a Class Action proceeding against Hino Motor Sales Australia Pty Ltd and Hino Motors Limited in the Supreme Court of Victoria on 30 September 2022. The proceeding seeks compensation on behalf of all purchasers or lessees of affected Hino Vehicles in Australia which were the subject of misconduct in relation to the certification in Japan in respect of emissions and fuel economy from as early as 2003. Such misconduct has now been admitted by the companies in respect of numerous Hino vehicles. Compensatory damages are being claimed against both companies with an additional claim for exemplary or punitive damages against the Japanese parent company. It is claimed that the misconduct in relation to emissions and fuel economy of Hino vehicles has caused not only financial loss to consumers of these vehicles but also environmental damage and damage to human health through excess emissions. To learn more and to register please visit our website: www.hinoclassaction.com.au [GN] HOOVESTOL INC: Hardwick's Bid to Certify Class Granted in Part -------------------------------------------------------------- In the class action lawsuit captioned as Thomas Hardwick, as an individual and on behalf of all others similarly situated, v. HOOVESTOL, INC., a Minnesota corporation; 10 ROADS EXPRESS, LLC, and DOES 1 through 10, inclusive, v. Case No. CV 20-7505-DMG-MAAx (C.D. Cal.), the Hon. Judge Dolly M. Gee entered an order granting in part and denying in part Hardwick's motion to certify class as follows: 1. The Court certifies the following Class: "All current and former hourly drivers employed by the Defendants in the State of California at any time from May 22, 2017 through the present, who are not members of the Terry class or who performed work after December 7, 2018." 2. The Court certifies the following subclasses: a. Wage Statement Subclass: "All Class Members employed by the Defendants in the State of California at any time from May 22, 2019 to the present;" b. Waiting Time Penalty Subclass: "All former hourly drivers employed by the Defendants in the State of California at any time from 22, 2017 through the present, who are not members of the Terry class or who performed work after December 7, 2018, and who received hourly fringe pay and sick pay during the same pay period. 3. The Court appoints Thomas Hardwick as the representative of the Class. 4. The Court appoints James R. Hawkins, Christina M. Lucio, and Mitchell J. Murray of James Hawkins APLC as Class Counsel. A copy of the Court's order dated Sept. 28, 2022 is available from PacerMonitor.com at https://bit.ly/3ViEsj8 at no extra charge.[CC] INTERNATIONAL GAME: Bids for Lead Plaintiff Appointment Due Dec. 13 ------------------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against International Game Technology PLC ("IGT" or the "Company") (NYSE: IGT) and certain of its officers. The class action, filed in the United States District Court for the District of New Jersey, and docketed under 22-cv-06094, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired IGT securities between March 16, 2018 and August 29, 2022, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased or otherwise acquired IGT securities during the Class Period, you have until December 13, 2022 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. IGT describes itself as "a global leader in gaming that delivers entertaining and responsible gaming experiences for players across all channels and regulated segments, from gaming machines and lotteries to sports betting and digital." In June 2017, IGT completed the sale of DoubleDown Interactive LLC ("DDI"), the operator of an online casino called DoubleDown Casino, to DoubleU Diamond LLC ("DoubleU"). The Complaint alleges that, throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations, and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) IGT overstated its compliance with gaming and lottery laws and applicable regulations; (ii) IGT and/or one or more of its current and/or former subsidiaries engaged in illegal gambling operations; (iii) the foregoing conduct subjected the Company and/or its current and/or former subsidiaries to a heightened risk of litigation and significant related costs; (iv) the Company downplayed the full scope and severity of its financial exposure to, and/or liabilities in connection with, the Benson Action (defined below); and (v) as a result, the Company's public statements were materially false and misleading at all relevant times. On April 9, 2018, a putative class action was filed in federal court against DDI and a wholly-owned subsidiary of the Company called International Game Technology ("IGT Subsidiary"), styled Benson v. Double Down Interactive, LLC et al., No. 2:18-cv-00525 (W.D. Wash.) (the "Benson Action"). The Benson Action alleges, among other things, that IGT Subsidiary and DDI illegally profited from tens of thousands of consumers in violation of Washington law in connection with their operation of DoubleDown Casino. On May 10, 2018, DDI and DoubleU sent a claim notice (the "DDI Claim Notice") to IGT Subsidiary seeking indemnification and reimbursement of defense costs for all claims against DoubleU and its affiliates in the Benson Action pursuant to the terms of certain agreements with DoubleU. On August 29, 2022, IGT and DDI issued a joint press release "announc[ing] an agreement in principle to settle the Benson v. DoubleDown Interactive LLC, et. al. lawsuit and associated proceedings (the 'Benson Matters')." The press release stated that, pursuant to the settlement, "[a] total of $415 million will be paid into a settlement fund of which IGT's subsidiaries will contribute $269.75 million" and that "[a]s a result of the settlement agreement, IGT will accrue a $119.75 million non-operating expense in the third quarter related to the incremental loss associated with the Benson Matters and related claims between IGT and DoubleDown and their respective subsidiaries and affiliates ($150 million was accrued in the second quarter)." On this news, IGT's ordinary share price fell $0.46 per share, or 2.45%, to close at $18.28 per share on August 30, 2022. Pomerantz LLP, with offices in New York, Chicago, Los Angeles, London, Paris, and Tel Aviv, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, Pomerantz pioneered the field of securities class actions. Today, more than 85 years later, Pomerantz continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. [GN] JOHNSON & JOHNSON: Edley Loses Class Certification Bid ------------------------------------------------------ In the class action lawsuit captioned as DANIEL EDLEY and ROGER EDLEY individually; as personal representatives of the Estate of Laszlo "Louis" Edley, deceased on behalf of said estate; and as representative of others similarly situated, v. JOHNSON & JOHNSON; John/Jane Doe Attorneys 1-1000; and John/Jane Doe J&J Corporate Members 1-1000, Case No. 3:22-cv-02970-FLW-TJB (D.N.J.), the Defendant asks the Court to enter an order denying class certification and/or striking the Complaint's class allegations with prejudice. Johnson & Johnson is an American multinational corporation founded in 1886 that develops medical devices, pharmaceuticals, and consumer packaged goods. A copy of the Defendant's motion dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3fFcoWE at no extra charge.[CC] The Defendant Johnson & Johnson is represented by Peter C. Harvey, Esq. Jonah M. Knobler, Esq. Thomas P. Kurland, Esq. PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036 Telephone: (212) 336-2000 E-mail: pcharvey@pbwt.com jknobler@pbwt.com tkurland@pbwt.com - and - John C. Garde, Esq. Penelope M. Taylor, Esq. McCARTER & ENGLISH, LLP Four Gateway Center 100 Mulberry Street Newark, NJ 07102 Telephone: (973) 622-4444 E-mail: jgarde@mccarter.com ptaylor@mccarter.com JOLO INC: Court Grants Rule 23 Class Certification in Saad Suit --------------------------------------------------------------- In the class action lawsuit captioned as LEAH SAAD, DEANNA GALLO, BRITTANY DUCHAINE AND SANCHERE KELLY, on behalf of themselves and all other similarly situated, v. JOLO, INC. d/b/a HURRICANE BETTY'S, Case No. 4:20-cv-11377-TSH (D. Mass.), the Hon. Judge Timothy S. Hillman entered an order granting the Plaintiffs' motion for class certification under Fed.R.Civ.P. 23 and appointment of class counsel Under Fed. R. Civ. P. 23(g). On October 31, 2022, the Plaintiff shall provide the Court with a proposed class certification Order defining the class, the class claims, issues, or defenses, and appointing class counsel under Fed.R.Civ.P. 23(g). The Plaintiffs shall also file a proposed form of notice in accordance with Fed.R.Civ.P. 23(c)(2)(B). If Defendants object to the proposed Order and/or form of notice, they shall file their own proposed Order/form of notice by November 14, 2022. A copy of the Court's order dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3efwkzc at no extra charge.[CC] JUUL LABS: Bay District Schools Join E-Cigarette Class Action Suit ------------------------------------------------------------------ Emma Riley at mypanhandle.com reports that Bay District Schools is joining more than 1300 other school districts in a class action lawsuit against Juul Labs Inc. They're accusing the e-cigarette manufacturer of creating a teenage nicotine epidemic by designing, marketing and selling its products to minors. "This is your chance to sue the bad guys," Lawyer Joel Wright said. A number of school districts have been frustrated with vaping in their schools for the last few years now, Bay District Schools agreed to join the lawsuit against Juul during board meeting. Joel Wright, a lawyer involved in the litigation, spoke with board members during the meeting. "Our group of law firms connected with some of these larger school districts and said this reminds us of the opioid epidemic they know what they are doing they know they are causing tremendous harm and they don't care cause they are making a lot of money from it, so several school districts signed up, Los Angeles, San Francisco, Seattle, Palm Beach Florida, and we filed this lawsuit," Wright said. Local doctor questions proposed Walton County sales tax Not only is vaping a distraction in schools but, more importantly, young kids are becoming addicted at a very young age. "Juul took nicotine, took vaping and they invented basically what they call the iPhone of vaping," Wright said. "They made it very simple, they made it convenient and added a number of extraordinary flavors, they were extremely popular with kids." In 2018, Philip Morris bought a third of Juul for $13 billion. Wright said the team of lawyers also filed a RICO claim, meaning that everyone that has made a profit from Juul will be held liable. "It is an enormous problem in the schools," BDS Attorney Franklin Harrison said. "It is something the administrators and teachers have to deal with on a constant basis all over the nation. They can go in the bathrooms, in the cars, in the hallways, anywhere and use it and we have to control all of that and try to discipline them and it is just besides that is an awful thing for our kids to get involved in." The trial is set to begin on November 4. [GN] JUUL LABS: Leon County Joins Other Districts in E-cigarette Suit ---------------------------------------------------------------- tallahassee.com reports that Leon County Schools will join more than a thousand other school districts in the fight against one of the most popular e-cigarette makers. The school board voted to join a class action lawsuit with approximately 1,400 other school districts against Juul, alleging the e-cigarette manufacturer used unfair marketing practices to make youth addicted to vaping products. "This is important for us to make a stand to our community that we are against this, and that we don't appreciate these companies seducing our children with banana-flavored nicotine," said school board member Rosanne Wood. "If this lawsuit prevails, and we get an award, we'll be able to educate our students." Juul settlement:Juul to pay nearly $440M to settle states' probe into marketing of vaping products for teens As of early September, 14 other school districts in Florida had joined the lawsuit. Leon County Schools will be represented by Kirton McConkie PC, a law firm based out of Salt Lake City, Utah. According to the contract, the district will owe 25% of the settlement and 25% of any non-monetary settlement to attorneys if the case closes by June 1, 2023. If the case closes after, that payment increases to 30% each. Youth vaping:36% of Santa Rosa high schoolers have tried vaping. The school district may sue over it Superintendent Rocky Hanna supported joining the lawsuit and said he's spoken to students about vaping during his sit-down lunches at middle and high schools. "After visiting with our kids, there's there's no doubt we're doing the right thing," Hanna said. Juul recently agreed to pay nearly $440 million to 34 states and territories to settle an investigation into the company's vaping products. The investigation found that Juul marketed its e-cigarettes to underage teens with launch parties, giveaways and ads and social media posts using youthful models, according to a statement from the Connecticut's Attorney General William Tong. Connecticut will receive a minimum of $16.2 million through the settlement. [GN] KIM BIMESTEFER: G.A., et al., Lose Bid to Certify Class ------------------------------------------------------- In the class action lawsuit captioned as G.A. et al., v. Kim Bimestefer, Case No. 1:21-cv-02381 (D. Colo.), the Hon. Judge Regina M. Rodriguez entered an order denying without prejudice motion to certify class. The the Court denies without prejudice the Plaintiffs' motion for class certification, with leave to re-file. Without commenting on the merits of any such motion, should Plaintiffs successfully move to amend the Complaint, the Plaintiffs may re-file their motion for class certification within 30 days of the Court's order granting leave to amend, the Court adds. The suit alleges violation of the Americans With Disabilities Act.[CC] KIRK MILLER: Loses Bid for Partial Summary Judgment vs AP&CIC ------------------------------------------------------------- In the class action lawsuit captioned as ALPS PROPERTY & CASUALTY INSURANCE COMPANY, a foreign insurer, v. KIRK D. MILLER, an individual, KIRK D. MILLER, P.S., a Washington Professional Service corporation, BRIAN CAMERON, an individual, SHAYNE SUTHERLAND, an individual, and CAMERON SUTHERLAND PLLC, a Washington Professional Limited Liability Company, Case No. 2:22-cv-00064-TOR (E.D. Wash.), the Hon. Judge Thomas O. Rice entered an order granting the plaintiff's motion for partial summary judgment and denying the defendants' motion for partial summary judgment. This case concerns a legal malpractice insurance dispute. On April 7, 2022, the Plaintiff ALPS filed the present complaint seeking declaratory relief regarding insurance coverage. The Defendants filed counterclaims for cross-declaratory relief, breach of contract, promissory estoppel, and the breach of duty of good faith and fair dealing. The parties filed motions for partial summary judgment regarding insurance coverage and Plaintiff's alleged duty to defend. The parties filed their respective response and reply to each motion. Except where noted, the following facts are not in dispute. A copy of the Court's order dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3rDo7YB at no extra charge.[CC] KOHL'S CORP: Court OKs Settlement Deal in Mollett Suit ------------------------------------------------------ In the class action lawsuit captioned as MARIANNA MOLLETT, v. KOHL'S CORPORATION, Case No. 2:21-cv-00707-PP (E.D. Wisc.), the Hon. Judge Pamela Pepper entered an order: 1. granting the plaintiffs' unopposed motion for settlement approval; 2. approving the settlement agreement; 3. approving awards of $160,000 in attorneys' fees and $5,000 to the collective representative; 4. certifying the following Fair Labor Standards Act (FLSA) collective for settlement purposes only: "All current or former hourly call-center employees who worked for the defendant in a position involved in customer service/contact, anywhere in the United States, at any time from August 13, 2018 through July 13, 2022, who were identified in the timekeeping and payroll data produced by the defendant for purposes of facilitating the plaintiffs' and defendant's settlement discussions and all hourly-call-center employees who have previously filed a consent to join this lawsuit. 5. approving the FLSA notice of collective action settlement, and the claim form; 6. dismissing with prejudice the FLSA collective members' released FLSA claims; and 7. dismissing with prejudice the Mollet case. Kohl's is an American department store retail chain, operated by Kohl's Corporation. A copy of the Court's order dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3fEgVIT at no extra charge.[CC] LAKE COUNTY, MT: Judge Certifies Class Lawsuit Over Jail Conditions ------------------------------------------------------------------- Seaborn Larson at ravallirepublic.com reports that a lawsuit filed against Lake County and the Montana governor will proceed as a class action case on behalf of all current and future inmates of the county jail, a federal judge ruled. The lawsuit aimed at improving conditions at the jail began gathering steam earlier this year, when 38 inmates saw their complaints - hanging largely on dangerous and unsanitary conditions, lack of health care access and refusal of religious practices - consolidated into one case. The case now bears 54 individual plaintiffs, several of them members of the Confederated Salish and Kootenai Tribes, whose reservation overlaps with much of Lake County. Constance Van Kley, one of the attorneys representing the plaintiffs, said the class certification ensures any benefit awarded in the lawsuit will benefit all inmates. "If the plaintiffs succeed on their constitutional claims, all inmates will be entitled to constitutionally adequate conditions of confinement," Van Kley said in an email. "And if the plaintiffs succeed but the conditions at the Lake County Jail do not improve, all inmates will be able to enforce the judgment." Lake County meanwhile is playing both offense and defense in the legal arena over the conditions at its jail. Just because the inmates' case took hold, Lake County made its own public plea to the state for funding toward a 60-year-old arrangement called Public Law 280, in which tribal police coordinate with state and local law enforcement in their jurisdiction, rather than federal law enforcement. The state, the county argues, has not paid into the resources for that arrangement, leaving Lake County on the $4 million hook for expenses outside its taxable population and pushing conditions at the jail to what local officials described as a "breaking point." In that dispute, Lake County first sought to negotiate funding from the state. After that approach met an impasse, the county sued the state in July in District Court to recover the costs going back to 1963, when Public Law 280 was enacted. In the case at hand, Lake County also filed a crossclaim against Gov. Greg Gianforte, arguing he is responsible for the ultimate funding and administration of the costs associated with Public Law 280. U.S. District Court Judge Donald Molloy noted the defense argument that many of the inmates who had filed complaints were no longer housed at the jail, and that some of those complaints had been varied. However, the judge noted the conditions at the jail are suffered equally by those currently incarcerated there, as well as those who will be housed there in the future. "Each inmate might have a slightly different concern on a different day, but they are all subject to living in the same conditions and suffering the same harms," Molloy wrote. [GN] LAS CRUCES: Faces Suit Over Illegal Debt Collection Practices ------------------------------------------------------------- Olivier Uyttebrouck at abqjournal.com reports that a woman sued by a Las Cruces hospital filed a counterclaim alleging that Mountain View Regional Medical Center violated a state law that protects low-income patients from collection actions for medical debt. The class action counterclaim alleges that the hospital has illegally sued more than 200 patients without first verifying whether their income protects them from debt collection actions under a 2021 law. Mountain View responded in a written statement that it has policies in place to ensure compliance with the law. The action was filed by the New Mexico Center on Law and Poverty on behalf of a Las Cruces woman who was sued by the hospital in July for nonpayment of about $6,000. "If they want to sue someone - if they want to send someone to collections - their burden is to first check that person's income," said Nicolas Cordova, an attorney at the New Mexico Center on Law and Poverty who filed the claim. "Basically, they have to do their homework and make sure that they legally can sue that person," he said. Lawmakers in 2021 approved the Patient's Debt Collection Protection Act, which prohibits collection actions against patients with a household income less than 200% of the federal poverty level, or $55,500 for a family of four. Gov. Michelle Lujan Grisham signed the bill into law in April 2021. The law also prohibits hospitals from hiring "third parties" to perform collection actions from indigent patients. Cordova said the counterclaim marks the first attempt to use the law to represent a class of patients. Mountain View Regional Medical Center responded that it has taken steps to comply with the law. "MountainView Regional Medical Center is aware of the requirements of the state law regarding medical debt collection and previously implemented policies and procedures to ensure compliance with the law," the hospital said in a written statement. "We are not aware of any departure from those policies and procedures," the statement said. "We will review the allegations in the lawsuit and work with the New Mexico Center on Law and Poverty if the review identifies mistakes or departures from the hospital's policies and procedures." Mountain View Regional Medical Center is owned by Tennessee-based Community Health Systems Inc., according to the firm's website. Mountain View filed a lawsuit in July against Ruby Ramirez of Las Cruces demanding payment of $6,205 for unspecified services. The counterclaim was filed in response to that lawsuit. "Ms. Ramirez has a qualifying income that should protect her from this exact type of lawsuit," Cordova said. "But as with so many other patients in New Mexico, Mountain View did not check Ms. Ramirez's income before filing this lawsuit." The suit against Ramirez was filed by the Missouri-based law firm Faber & Brand, which is also named as a defendant in the counterclaim. The law firm unlawfully files debt collection suits on behalf of Mountain View "without first inquiring of the hospital whether the patients had been determined to be indigent patients," the counterclaim alleges. Faber & Brand did not immediately respond to email messages seeking comment. Efforts to reach the firm by phone were not successful. The counterclaim was filed in 3rd Judicial District Court against Las Cruces Medical Center LLC, doing business as the Mountain View Regional Medical Center. It also names the Missouri law firm Faber & Brand as a defendant, alleging the firm acts as the hospital's debt collector. The claim asks a 3rd Judicial District Court judge to certify the case as a class action on behalf of at least 200 indigent patients sued by Mountain View since the law took effect on July 1, 2021. It also asks the judge to order the hospital to stop filing lawsuits without checking patients' income status, to dismiss pending lawsuits against indigent patients, and return money it received by garnishing patients' wages. [GN] LAUNDRY DEPOT: Leong Seeks to Certify Rule 23 Class Action ---------------------------------------------------------- In the class action lawsuit captioned as NYOK MOY LEONG, on behalf of herself and others similarly situated, v. LAUNDRY DEPOT, LLC, et al., Case No. 2:19-cv-03545-HG-PK (E.D.N.Y.), the Plaintiff asks the Court to enter an order: 1. certifying this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure; 2. appointing him as class representative; 3. appointing Troy Law, PLLC and its attorneys John Troy, Aaron B. Schweitzer, and Tiffany as class counsel; 4. permitting him to circulate a notice of class action by direct mail to class members and by publication; and 5. granting such other and further relief as the Court shall deem just and proper. The Defendants include d/b/a Laundry Depot Four, LAUNDRY DEPOT No. IV, LLC d/b/a Laundry Depot, LAUNDRY DEPOT No. V, LLC d/b/a Laundry Depot, FA SUPER LAUNDROMAT CORP. d/b/a Laundry Depot Fifth Avenue, LAUNDRY DEPOT II LLC d/b/a Laundry Depot Fifth Avenue d/b/a Laundry Depot, EAST ISLIP SUPER LAUNDROMAT CORP. d/b/a Laundry Depot, ITP LAUNDROMAT CORP d/b/a I.T.P. Laundromat, LAUNDRY DEPOT, III LLC d/b/a Laundry Depot, BAYSHORE LAUNDRY, LLC d/b/a Laundry Depot d/b/a/ South Shore Laundromat, NGAI LAU a/k/a Tommy Lau a/k/a Ngai Lau, JENNY QIANJUN LAU a/k/a Jenny Lau a/k/a Qianjun Lau, EILEEN ZHANG, and SING OI LAU a/k/a Oi Sing Lau. A copy of the Plaintiff's motion to certify class dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3T9EqIe at no extra charge.[CC] The Plaintiff is represented by: Aaron B. Schweitzer, Esq. John Troy, Esq. Tiffany Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard, Suite 103 Flushing, NY 11355 Telephone: (718) 762-1324 E-mail: troylaw@troypllc.com LAWN ENFORCEMENT: Conditional Status of Collective Action Sought ---------------------------------------------------------------- In the class action lawsuit captioned as Alfredo Teran, Eliberto Perez Ambrosio, Baltazar Calderon, Jr., Ismael Guel, Patricio Martinez, Ricardo Teran, Trinidad Teran, Xavier Teran, on behalf of themselves and all others similarly situated, v. Lawn Enforcement, Inc., Jamie Walker, individually, and Jason Braden, individually, Case No. 2:22-cv-02338-JTF-tmp (W.D. Tenn.), the Plaintiffs ask the Court to enter an order: 1. granting authorization to proceed case as a collective action for overtime violations under the Fair Labor Standards Act (FLSA), on behalf of themselves and similarly-situated past and present Lawn Enforcement, Inc. employees, with the collective to be defined as follows: "all individuals employed by Lawn Enforcement from June 8, 2019 to present and compensated on an hourly basis who were denied the statutorily required overtime premium for all hours worked in excess of forty hours in a work week;" 2. directing the Defendants to produce to the Plaintiffs' counsel within 10 days of the Order granting this Motion a list containing the names, the last known addresses, last known email addresses, and phone numbers for hourly-paid personnel employed by Defendants from June 8, 2019 to present; 3. granting authorization to send notice and consent to join, to all individuals whose names appear on the list produced by the Defendants' counsel by first-class mail and email so that they can assert their claims on a timely basis as part of this litigation; and 4. tolling the statute of limitations for the putative class as of the date this action was filed. Lawn Enforcement is a professional full service local lawn care / landscaping, skid steer, company in Martinsburg, West Virginia, Charles Town. A copy of the Plaintiffs' motion dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3SG60gu at no extra charge.[CC] The Plaintiffs are represented by: Philip Oliphant, Esq. Alan G. Crone, Esq. THE CRONE LAW FIRM, PLC 88 Union Avenue, 14 th Floor Memphis, TN 38103 Telephone: (901) 737-7740 Facsimile: (901) 474-7926 E-mail: acrone@cronelawfirmplc.com poliphant@cronelawfirmplc.com LAWPRACTICECLE LLC: Bid to Certify Class Tossed as Moot in Goren ---------------------------------------------------------------- In the class action lawsuit captioned as Goren v. LawPracticeCLE, L.L.C., Case No. 8:21-cv-01503 (M.D. Fla.), the Hon. Judge William F. Jung entered an endorsed order denying as moot motion to certify class. The suit alleges violation of the Americans with Disabilities Act. LawPracticeCLE is a national continuing legal education company.[CC] LENNAR CORP: Catenac Alleges Breach of Fiduciary Duties Under ERISA ------------------------------------------------------------------- GARY CATENAC and AYANA KNOWLES, individually and as representatives of a class of participants and beneficiaries on behalf of the Lennar Corporation 401(K) Plan, Plaintiffs v. LENNAR CORPORATION, Defendant, Case No. 1:22-cv-23232-KMW (S.D. Fla., Oct. 5, 2022) is a class action against the Defendant for breaching its fiduciary duties of prudence in violation of the Employee Retirement Income Security Act. According to the complaint, the Defendant's Lennar Corporation 401(K) Plan has tremendous leverage to secure low fees and excellent investment options for Plan participants and beneficiaries including Plaintiffs. However, instead of leveraging the Plan's tremendous bargaining power to benefit participants and beneficiaries, the Defendant caused the Plan to pay excessive fees and compensation to Prudential Retirement Insurance and Annuity Company. The complaint asserts that the Defendant violated its ERISA's duty of prudence in three important ways. First, Defendant caused the Plan and its participants to pay Prudential excessive and unreasonable fees for administrative services. The Defendant caused the Plan and its participants to pay Prudential more than triple the market rate for administrative services. Second, the Defendant selected and retained on the Plan investment menu the Prudential Stable Value Fund. As a result, there is more Plan participant money in the imprudent Prudential Stable Value Fund than in any other investment offered by the Plan. Third, whenever a Plan participant deposits or withdraws money from his/her Plan account, the money is transferred to a clearing account owned by Prudential. The money is in Prudential's possession, usually for several days while, until eventually the money is directed to wherever Plan participants initially requested. The Plaintiffs allege that Defendant never monitored, tracked, negotiated, or factored the amount of float income that Prudential was receiving from Plan participants when assessing Prudential's compensation from the Plan. Lennar Corporation is a home construction company based in the census-designated place of Fontainebleau, Florida. Lennar is the Plan sponsor and a statutory fiduciary of the Plan within the meaning of ERISA.[BN] The Plaintiffs are represented by: Brandon J. Hill, Esq. Luis A. Cabassa, Esq. Amanda E. Heystek, Esq. WENZEL FENTON CABASSA, P.A. 1110 N. Florida Avenue, Suite 300 Tampa, FL 33602 Telephone: (813) 224-0431 Facsimile: (813) 229-8712 E-mail: bhill@wfclaw.com lcabassa@wfclaw.com aheystek@wfclaw.com gnichols@wfclaw.com - and - Marc R. Edelman, Esq. MORGAN & MORGAN, P.A. 201 N. Franklin Street, Suite 700 Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 257-0572 E-mail: medelman@forthepeople.com LINCOLN NATIONAL: Amended Scheduling Order Entered in Bharwani Suit ------------------------------------------------------------------- In the class action lawsuit captioned as BHARWANI, et al v. LINCOLN NATIONAL CORP. et al., Case No. 2:16-cv-06605-GJP (E.D. Pa.), the Hon. Judge Gerald J. Pappert Jr., entered an amended scheduling order as follows: 1. Class Plaintiffs' New Motion December 21, 2022 for Class Certification shall be filed on or before: 2. Opening expert reports on December 21, 2022 issues where parties have the burden of proof due on or before: 3. The parties' shall produce December 23, 2022 materials relied on by experts in opening reports on or before: 4. Rebuttal expert reports due February 10, 2023 on or before: 5. The parties' shall produce February 14, 2023. materials relied on by experts in rebuttal reports on or before: 6. Expert Discovery shall be May 3, 2023 completed on or before: 7. Defendants' opposition to May 24, 2023. New Motion for Class Certification, and any Daubert Motion relating to expert opinions relied upon by Class Plaintiffs in connection with class certification shall be filed on or before: 8. Class Plaintiffs' Reply in June 9, 2023 Support of New Motion for Class Certification, and Opposition to Defendants' Daubert Motion(s) shall be filed on or before: 9. Class Plaintiffs' Daubert June 9, 2023 Motion(s) relating to expert opinions relied upon by the Defendants in connection with class certification shall be filed on or before: 10. Defendants' Reply in support June 23, 2023 of any Daubert Motion and Opposition to any Daubert Motion Plaintiffs file shall be filed on or before: 11. The Plaintiffs' Reply in July 7, 2023 Support of any Daubert Motion shall be filed on or before: A copy of the Court's order dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3SNxeBZ at no extra charge.[CC] LINCOLN NATIONAL: Amended Scheduling Order Entered in COI Rate Suit ------------------------------------------------------------------- In the class action lawsuit re: LINCOLN NATIONAL 2017 COI RATE LITIGATION, Case No. 2:17-cv-04150-GJP (E.D. Pa.), the Hon. Judge Gerald J. Pappert Jr., entered an amended scheduling order as follows: 1. Class Plaintiffs' New Motion December 21, 2022 for Class Certification shall be filed on or before: 2. Opening expert reports on December 21, 2022 issues where parties have the burden of proof due on or before: 3. The parties' shall produce December 23, 2022 materials relied on by experts in opening reports on or before: 4. Rebuttal expert reports due February 10, 2023 on or before: 5. The parties' shall produce February 14, 2023. materials relied on by experts in rebuttal reports on or before: 6. Expert Discovery shall be May 3, 2023 completed on or before: 7. Defendants' opposition to May 24, 2023. New Motion for Class Certification, and any Daubert Motion relating to expert opinions relied upon by Class Plaintiffs in connection with class certification shall be filed on or before: 8. Class Plaintiffs' Reply in June 9, 2023 Support of New Motion for Class Certification, and Opposition to Defendants' Daubert Motion(s) shall be filed on or before: 9. Class Plaintiffs' Daubert June 9, 2023 Motion(s) relating to expert opinions relied upon by the Defendants in connection with class certification shall be filed on or before: 10. Defendants' Reply in support June 23, 2023 of any Daubert Motion and Opposition to any Daubert Motion Plaintiffs file shall be filed on or before: 11. The Plaintiffs' Reply in July 7, 2023 Support of any Daubert Motion shall be filed on or before: A copy of the Court's order dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3Vc0jsl at no extra charge.[CC] LINCOLN NATIONAL: Amended Scheduling Order Entered in EFG Bank Suit ------------------------------------------------------------------- In the class action lawsuit captioned as EFG BANK AG, CAYMAN BRANCH, et al., v. THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, Case No. 2:17-cv-02592-GJP (E.D. Pa.), the Hon. Judge Gerald J. Pappert Jr., entered an amended scheduling order as follows: 1. Class Plaintiffs' New Motion December 21, 2022 for Class Certification shall be filed on or before: 2. Opening expert reports on December 21, 2022 issues where parties have the burden of proof due on or before: 3. The parties' shall produce December 23, 2022 materials relied on by experts in opening reports on or before: 4. Rebuttal expert reports due February 10, 2023 on or before: 5. The parties' shall produce February 14, 2023. materials relied on by experts in rebuttal reports on or before: 6. Expert Discovery shall be May 3, 2023 completed on or before: 7. Defendants' opposition to May 24, 2023. New Motion for Class Certification, and any Daubert Motion relating to expert opinions relied upon by Class Plaintiffs in connection with class certification shall be filed on or before: 8. Class Plaintiffs' Reply in June 9, 2023 Support of New Motion for Class Certification, and Opposition to Defendants' Daubert Motion(s) shall be filed on or before: 9. Class Plaintiffs' Daubert June 9, 2023 Motion(s) relating to expert opinions relied upon by the Defendants in connection with class certification shall be filed on or before: 10. Defendants' Reply in support June 23, 2023 of any Daubert Motion and Opposition to any Daubert Motion Plaintiffs file shall be filed on or before: 11. The Plaintiffs' Reply in July 7, 2023 Support of any Daubert Motion shall be filed on or before: A copy of the Court's order dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3fUzQiX at no extra charge.[CC] LLOYD AUSTIN: Military Chaplains Seek Class Certification --------------------------------------------------------- In the class action lawsuit captioned as ISRAEL ALVARADO, et al., v. LLOYD AUSTIN, III, et al., Case No. 1:22-cv-00876-AJT-JFA (E.D. Va.), the 42 military chaplain Plaintiffs, on behalf of themselves and similarly situated class members, respectfully move the Court to enter an order certifying the following class and subclasses under Rule 23(b)(2) of the Federal Rules of Civil Procedure: -- Military Chaplain Class "the class of all military chaplains who are subject to the Department of Defense's (DOD) COVID-19 vaccine mandate and who have submitted a Religious Accommodation Request (RAR);" -- Constructively Discharged Subclass "a subclass of the Military Chaplain Class who have sufficient time in service to retire and who do not wish to retire, but are faced with the draconian threat either to retire or face disciplinary actions and forfeit everything they have worked for their entire careers" -- Sanctuary Subclass "a subclass of the Military Chaplain Class who have reached or almost reached 18 years of service, entitling them to "sanctuary" status until they reach 20 years of service and are eligible for retirement;" and -- Natural Immunity Subclass "a subclass of the Military Chaplain Class who have natural immunity from a previous documented COVID-19 infection and should be eligible either for religious accommodation or a medical exemption." The Plaintiffs further request that the Court enter an order: 1. appointing Plaintiffs' counsel as class counsel under Rule 23(g) of the Federal Rules of Civil Procedure, and 2. designating twelve specific identified plaintiffs as Class and subclass Representatives. A copy of the Plaintiffs' motion dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3ecTvtX at no extra charge.[CC] The Plaintiff is represented by: Arthur A. Schulcz, Sr. CHAPLAINS COUNSEL, PLLC 21043 Honeycreeper Place Leesburg, VA 20175 Telephone: (703) 645-4010 E-mail: art@chaplainscounsel.com - and - Brandon Johnson, Esq. DEFENDING THE REPUBLIC 2911 Turtle Creek Blvd., Suite 300 Telephone: (214) 707-1775 E-mail: bcj@defendingtherepublic.org - and - J. Andrew Meyer, Esq. FINN LAW GROUP, P.A. 8380 Bay Pines Blvd St. Petersburg, Florida 33709 Telephone.: (727) 709-7668 E-mail: ameyer@finnlawgroup.com LLOYD AUSTIN: Scheduling Order Entered in Alvarado Class Suit ------------------------------------------------------------- In the class action lawsuit captioned as ISRAEL ALVARADO, et al., v. LLOYD AUSTIN, III, et al., Case No. 1:22-cv-00876-AJT-JFA (E.D. Va.), the Hon. Judge Anthony J. Trenga entered an order granting the Consent Motion to Grant Scheduling Order: -- The Defendants shall file their Opposition on or before October 21, 2022; and -- The Plaintiffs shall file a Reply on or before October 31, 2022. A copy of the Court's order dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3s0l3WR at no extra charge.[CC] MARATHON OIL: Kunneman, et al., Seek to Certify Settlement Class ---------------------------------------------------------------- In the class action lawsuit captioned as Kunneman Properties, LLC, et al., on behalf of themselves and all others similarly situated, v. Marathon Oil Company, Case No. 6:22-cv-00274-KEW (E.D. Okla.), the Plaintiff asks the Court to enter an order: 1. certifying the Settlement Class for settlement purposes; 2. preliminarily approving the Settlement; 3. appointing the Plaintiffs as Class Representatives for the Settlement Class; 4. appointing Reagan E. Bradford and Ryan K. Wilson, of Bradford & Wilson PLLC, and Rex A. Sharp, of Sharp Law, LLP, as Co-Lead Class Counsel for the Settlement Class; 5. approving the form and manner of the proposed Notices; 6. appointing a Settlement Administrator; 7. appoint an Escrow Agent; and 8. setting a hearing date for final approval of the Settlement and application for an award of Plaintiffs' Attorneys' Fees, Litigation Expenses and Administration, Notice, and Distribution Costs, and a Case Contribution Award to Plaintiffs. This case has been fiercely litigated for five years, as reflected by the attached docket sheet from the Northern District of Oklahoma. Rather than closely detail each and every development -- all of which are reflected on Exhibit 2—Plaintiffs provide a high-level summary of the major events in the litigation to date. The Plaintiffs initiated this case in on August 7, 2017, in the Northern District of Oklahoma, alleging that the Defendant underpaid royalty under Oklahoma law by improperly deducting costs necessary to place natural gas in marketable condition. On September 11, 2017, the Defendant filed a combined motion to dismiss or motion to transfer venue. On January 9, 2018, the Court denied Defendant’s motion to transfer venue. The parties then began engaging in discovery, and Plaintiffs filed their First Motion to Compel on July 9, 2019, and the motion was fully briefed by August 27. The Settlement consists of a cash payment of $35 million as well as a go-forward agreement that delineates, for a period of 10 years, the costs that Defendant can and cannot deduct from the Settlement Class's royalty payments. The Plaintiffs and their counsel submit that this agreement presents an outstanding recovery for the Settlement Class, both in terms of the upfront cash and the go-forward benefits and clarity. A copy of the Plaintiff's motion dated Oct. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3EucRW4 at no extra charge.[CC] The Plaintiff is represented by: Reagan E. Bradford, Esq. Ryan K. Wilson, Esq. BRADFORD & WILSON PLLC 431 W. Main Street, Suite D Oklahoma City, OK 73102 Telephone: (405) 698-2770 E-mail: reagan@bradwil.com ryan@bradwil.com – and – Rex A. Sharp, Esq. Ryan C. Hudson, Esq. Scott B. Goodger, Esq. HARP LAW, LLP 5301 W. 75th Street Prairie Village, KS 66208 Telephone: (913) 901-0505 Facsimile: (913) 901-0419 E-mail: rsharp@midwest-law.com rhudson@midwest-law.com sgoodger@midwest-law.com MARYGOLD COMPANIES: Seeks Dismissal from Lucas Class Action ----------------------------------------------------------- The Marygold Companies Inc. disclosed in its Form 10-K Report for the fiscal year ended June 30, 2022 filed with the Securities and Exchange Commission on September 28, 2022, that the defendants moved for their dismissal in the "Amended Lucas Class Complaint." On June 19, 2020, USCF, USO, John P. Love, and Stuart P. Crumbaugh were named as defendants in a putative class action filed by purported shareholder Robert Lucas (the "Lucas Class Action"). The Court thereafter consolidated the Lucas Class Action with two related putative class actions filed on July 31, 2020 and August 13, 2020, and appointed a lead plaintiff. The consolidated class action is pending in the U.S. District Court for the Southern District of New York under the caption In re: United States Oil Fund, LP Securities Litigation, Civil Action No. 1:20-cv-04740. On November 30, 2020, the lead plaintiff filed an amended complaint (the "Amended Lucas Class Complaint"). The Amended Lucas Class Complaint asserts claims under the 1933 Act, the 1934 Act, and Rule 10b-5. The Amended Lucas Class Complaint challenges statements in registration statements that became effective on February 25, 2020 and March 23, 2020 as well as subsequent public statements through April 2020 concerning certain extraordinary market conditions and the attendant risks that caused the demand for oil to fall precipitously, including the COVID-19 global pandemic and the Saudi Arabia-Russia oil price war. The Amended Lucas Class Complaint purports to have been brought by an investor in USO on behalf of a class of similarly-situated shareholders who purchased USO securities between February 25, 2020 and April 28, 2020 and pursuant to the challenged registration statements. The Amended Lucas Class Complaint seeks to certify a class and to award the class compensatory damages at an amount to be determined at trial as well as costs and attorney's fees. The Amended Lucas Class Complaint named as defendants USCF, USO, John P. Love, Stuart P. Crumbaugh, Nicholas D. Gerber, Andrew F Ngim, Robert L. Nguyen, Peter M. Robinson, Gordon L. Ellis, and Malcolm R. Fobes III, as well as the marketing agent, ALPS Distributors, Inc., and the Authorized Participants: ABN Amro, BNP Paribas Securities Corporation, Citadel Securities LLC, Citigroup Global Markets, Inc., Credit Suisse Securities USA LLC, Deutsche Bank Securities Inc., Goldman Sachs & Company, J.P. Morgan Securities Inc., Merrill Lynch Professional Clearing Corporation, Morgan Stanley & Company Inc., Nomura Securities International Inc., RBC Capital Markets LLC, SG Americas Securities LLC, UBS Securities LLC, and Virtu Financial BD LLC. The lead plaintiff has filed a notice of voluntary dismissal of its claims against BNP Paribas Securities Corporation, Citadel Securities LLC, Citigroup Global Markets Inc., Credit Suisse Securities USA LLC, Deutsche Bank Securities Inc., Morgan Stanley & Company, Inc., Nomura Securities International, Inc., RBC Capital Markets, LLC, SG Americas Securities LLC, and UBS Securities LLC. USCF, USO, and the individual defendants in In re: United States Oil Fund, LP Securities Litigation intend to vigorously contest such claims and have moved for their dismissal. MATTERPORT INC: Wins Bid to Strike Stemmelin Bid to Certify Class ----------------------------------------------------------------- In the class action lawsuit captioned as JOHN STEMMELIN v. MATTERPORT, INC., et al., Case No. 3:20-cv-04168-WHA (N.D. Cal.), the Hon. Judge William Alsup entered an order that: -- the motion to strike is granted, and -- the second class certification motion is stricken. In this false and deceptive advertising action, the plaintiff seeks a second opportunity to certify a national class of those who enrolled in the defendant's 3D camera partner program, this time under Rule 23(b)(2). The Defendant moves to strike plaintiff's motion. To the following extent, the motion to strike is granted. In brief, the plaintiff John Stemmelin brought this lawsuit against Matterport and its officers as a putative class action in June 2020, alleging violations of unfair and false advertising laws as well as numerous states' business opportunity laws connected to Matterport's 3D camera business. Matterport operates as a software company. A copy of the Court's order dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3Vhd5FS at no extra charge.[CC] MDL 2151: Ye v. Toyota Motor Suit Transferred to C.D. Cal. ---------------------------------------------------------- In the products liability litigation captioned IN RE: TOYOTA MOTOR CORP. UNINTENDED ACCELERATION MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, MDL No. 2151, Chairperson Karen K. Caldwell of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the case captioned "Ye v. Toyota Motor North America," C.A. No. 7:22−00695, to the U.S. District Court for the Central District of California and assigned to Judge James V. Selna for inclusion in the coordinated or consolidated pretrial proceedings. The actions in this litigation involve allegations of a defect in certain Toyota vehicles that causes sudden, unintended acceleration. Ye moved to vacate the order that conditionally transferred her action to the Central District of California for inclusion in MDL No. 2151. Defendant Toyota Motor North America opposed the motion to vacate. Ye argued "health reasons," and that the transferee district is too far from her state of residence. The panel held repeatedly that transfer of a particular action often is necessary to further the expeditious resolution of the litigation taken as a whole, even if it might inconvenience some parties to that action and added that the transfer may benefit the Plaintiff by providing her access to the common discovery already produced in the litigation. A full-text copy of the court's October 7, 2021 transfer order is available at https://bit.ly/3TfKrTT MDL 2627: Stein v. LL Flooring Suit Transferred to E.D. Va. ----------------------------------------------------------- In the products liability litigation captioned IN RE: LUMBER LIQUIDATORS CHINESE-MANUFACTURED FLOORING PRODUCTS MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, MDL No. 2627, Chairperson Karen K. Caldwell of the U.S. Judicial Panel on Multidistrict Litigation entered an order transferring the case captioned "Stein v. LL Flooring, Inc., et al.," C.A. No. 2:22−04736 to the U.S. District Court for the Eastern District of Virginia and assigned to Judge Anthony J. Trenga for inclusion in the coordinated or consolidated pretrial proceedings. The Actions in this litigation involve allegations that the defendants' laminate flooring emits illegal and unsafe levels of formaldehyde, a known carcinogen, despite being marketed as compliant with regulations of the California Air Resources Board and other applicable regulations. Stein brings wrongful death claims in connection with alleged injuries her daughter suffered arising from Lumber Liquidators' Chinese-manufactured laminate flooring, which plaintiff alleges emitted excessive levels of formaldehyde. Plaintiff opposed transfer for three reasons. First, she stresses that she does not bring claims on behalf of her late daughter's estate, so the transferee judge's previous dismissal order does not apply to her claims. Second, she argued that she does not seek recovery for personal injuries to the decedent but instead for her own loss of relations with the decedent. Finally, plaintiff argued that transfer of her California-based case is inconvenient to all parties except defendant, which prefers litigating in its home district. The panel held that the underlying facts of the current Stein action are without doubt related to the core controversy of the MDL. The Stein personal injury action proceeded from its filing in September 2016 through expert discovery until plaintiff died in October 2018, which suggests that the transferee judge will be familiar with the allegations in the current wrongful death action. In his order dismissing the personal injury claims, the transferee judge clearly expressed his concern that LL Flooring would suffer prejudice and placed limits on future actions brought by or on behalf of plaintiff's estate to prevent such prejudice. That the current wrongful death action is brought by decedent's mother, a surviving heir (who was not a party to the initial action and was not before the court), and not the decedent's estate is an irrelevant distinction, given the extensive factual overlap with the MDL cases. A full-text copy of the court's October 7, 2021 transfer order is available at https://bit.ly/3RT1REU MDL 2846: Montalbano v. Honor Health Suit Transferred to S.D. Ohio ------------------------------------------------------------------ In the products liability litigation captioned IN RE: DAVOL, INC./C.R. BARD, INC., POLYPROPYLENE HERNIA MESH PRODUCTS LIABILITY LITIGATION, MDL No. 2846, Chairperson Karen K. Caldwell of the U.S. Judicial Panel on Multidistrict Litigation, entered an order transferring the case captioned "Montalbano v. Honor Health, et al.," C.A. No. 2:22−01112 to the Southern District of Ohio and assigned to Judge Edmund A. Sargus, Jr. for inclusion in the coordinated or consolidated pretrial proceedings. The Actions in this litigation involve factual questions arising out of allegations that defects in defendants' polypropylene hernia mesh products can lead to complications when implanted in patients including, inter alia, adhesions, damage to organs and infections. Montalbano moved to vacate said order that conditionally transferred his action to the Southern District of Ohio for inclusion in MDL No. 2846. Defendant C.R. Bard, Inc. (Bard) opposed the motion. The panel established that this action involves common questions of fact with the actions transferred to MDL No. 2846, and that transfer will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. In support of the motion to vacate, Plaintiff argued that removal of the action was improper and the transferor court should decide his motion for remand to state court. However, the Panel held that jurisdictional objections generally do not present an impediment to transfer. A full-text copy of the court's October 6, 2021 transfer order is available at https://bit.ly/3eqgvpq MDL 2873: Court Vacates Transfer Order in Circle K v. Johnson ------------------------------------------------------------- In the product liability litigation captioned "In Re: Aqueous Film-Forming Foams Products Liability Litigation," MDL No. 2873, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation has entered an order vacating a conditional transfer order. Plaintiff Circle K Terminal Alabama, LLC, moved to vacate the order that conditionally transferred Circle K Terminal Alabama LLC v. Johnson Controls, Inc., C.A. No. 2:22—00583 (Northern District of Alabama) to the District of South Carolina for inclusion in MDL No. 2873. Defendant Johnson Controls, Inc. (JCI), and non-parties Tyco Fire Products LC and Chemguard, Inc., opposed the motion. MDL No. 2873 involves allegations that aqueous film-forming foams (AFFFs) used at airports, military bases, or other locations to extinguish liquid fuel fires caused the release of perfluorooctane sulfonate (PFOS) and/or perfluorooctanoic acid (PFOA; collectively, these and other per- or polyfluoroalkyl substances are referred to as PFAS) into local groundwater and contaminated drinking water supplies. Circle K Terminal, however, alleges that a JCI employee, either negligently or recklessly, activated the fire suppression system at plaintiff's fuel terminal while conducting a routine inspection of the system, that it had to engage an environmental services company to contain the spread of the foam, which caused a suspension of terminal operations. Circle K seeks to recover damages to the terminal, the costs of the clean-up, and lost sales. Unlike other actions transferred to the MDL and involving a single release of AFFF, Circle K does not allege that groundwater at or near the site was contaminated, nor does it allege that first responders were injured by exposure to AFFF. This action appears primarily to be about the alleged negligence of JCI in its operation of the fire suppression at the terminal, not the potential environmental or individual harm posed by the AFFF itself. The opposing parties argued that Circle K Terminal will share common questions of fact with the cases in the MDL, such as questions relating to the toxicity, health effects, and chemical properties of PFAS. It is true that the complaint makes passing mention of plaintiff's potential liability if the AFFF release is later found to have caused groundwater contamination. But the complaint, as currently presented, is overwhelmingly directed at JCI's allegedly negligent or reckless actions that caused the release of the foam and the immediate damages this caused to the operation of the fuel terminal. There is no allegation that the toxicity of the foam is the cause of plaintiff's damages, except to the extent that it made the clean-up more expensive. It thus appears unlikely that Circle K Terminal will entail significant overlap in discovery or pretrial proceedings with the actions in the MDL. Both the MDL and Circle K Terminal will proceed more efficiently if Circle K Terminal remains outside the MDL, says the Panel. Accordingly, after considering the parties' arguments, the Panel finds that transfer of the action will not serve the convenience of the parties and witnesses or promote the just and efficient conduct of the litigation without foreclosing the possibility that discovery and pleading practice in Circle K Terminal may demonstrate that transfer of this action to the MDL ultimately is warranted. But, based upon consideration of the pleadings, it must appear that transfer to the MDL will enhance efficiency and convenience of the litigation. Should Circle K Terminal evolve into a more typical AFFF action, the parties or the court at that time can re-notice the action for transfer to MDL No. 2873 as a potential tag-along. A full-text copy of the court's October 5, 2022 order to vacate is available at https://bit.ly/3CNNHR1 MDL 2913: Northwest Allen Cty Schools Sues Over E-Cigarette Crisis ------------------------------------------------------------------ Northwest Allen County Schools, 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-05699 (N.D. Cal., Oct. 4, 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 Northwest Allen County Schools 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. Northwest Allen County Schools is a public school district serving approximately 8,100 students. The Plaintiff's administrative offices are in Fort Wayne, Indiana. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California.[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 3014: Newsome v. Philips Transferred to W.D. Pa. ---------------------------------------------------- Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, ordered the consolidation of case captioned "Newsome et al. v. Philips North America LLC, et al.," C.A. No. 4:22−04101 to the multi-district action captioned "In Re: Philips Recalled CPAP, Bi-Level PAP and Mechanical Ventilator Products Liability Litigation," MDL No. 3014, in U.S. District Court for the Western District of Pennsylvania. Plaintiffs moved to vacate the transfer order to the Western District of Pennsylvania for inclusion in MDL No. 3014 while defendants opposed this motion. The actions in the MDL assert overlapping claims for violations of state consumer protection statutes, breach of warranties and unjust enrichment arising from recalled ventilators and the potential harm that can be caused by their alleged inherent defect. Plaintiffs argued that federal subject matter jurisdiction over said case is lacking and the transferor court should decide their pending remand motion before any transfer, but the Panel held that this is not an impediment to transfer. A full-text copy of the court's October 5, 2022 order is available at https://bit.ly/3VaWkfA MDL 3026: George v. Children's National Transferred to N.D. Ill. ---------------------------------------------------------------- In the multi-district litigation captioned IN RE: ABBOTT LABORATORIES, ET AL., PRETERM INFANT NUTRITION PRODUCTS LIABILITY LITIGATION, MDL No. 3026, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation transfers "George, et al. v. Children's National Medical Center," C.A. No. 1:20−03108 to the Northern District of Illinois and, with the consent of that court, assigned it to Judge Rebecca R. Pallmeyer for coordinated or consolidated pretrial proceedings. The action is brought solely against Children's National Medical Center, where plaintiffs' infant was administered a cow's milk-based human milk fortifier marketed under the "Similac" and "Enfamil" brand names. Said infant formula products have allegedly a higher propensity to cause necrotizing enterocolitis (NEC) in infants born prematurely than other, allegedly safer alternatives. The George action falls within the MDL's ambit because it involves injuries arising from an infant's ingestion of cow's milk-based preterm infant formulas manufactured by Abbott Laboratories and/or Mead Johnson. Although some cases are slightly advanced, the Panel is of the opinion that the parties can obtain significant efficiencies by placing all actions before a single judge. Centralization offers substantial opportunity to streamline pretrial proceedings, reduce duplicative discovery and conflicting pretrial obligations, prevent inconsistent rulings and summary judgment motions and conserve the resources of the parties, their counsel and the judiciary. A full-text copy of the court's October 7, 2022 Transfer Order is available at https://bit.ly/3Tf4HF1 MDL 3044: Court Consolidates 27 Suits in E.D.N.Y. ------------------------------------------------- In the product litigation regarding knee/hip replacement devices' premature failure captioned IN RE: EXACTECH POLYETHYLENE ORTHOPEDIC PRODUCTS LIABILITY LITIGATION, MDL No. 3044, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers seven cases from the U.S. District Court for the Eastern District of New York, six from the Southern District of New York, four from the District of Maryland, two each from the District of New Jersey and South Carolina, and one each from the Eastern District of Arkansas, District of Colorado, District of Connecticut, Eastern District of Missouri, Northern District of Texas and Eastern District of Louisiana all to the Eastern District of New York and, with the consent of that court, assigned to Judge Nicholas G. Garaufis for coordinated or consolidated pretrial proceedings. This litigation concerns two events concerning polyethylene components of Exactech medical devices. On June 28, 2021, Exactech issued a product safety alert regarding the clinical performance of the polyethylene liner used in its Connexion GXL hip systems. On August 31, 2021, Exactech initiated a recall related to polyethylene inserts used in its knee and ankle devices because such devices were packaged in out-of-specification vacuum bags that are oxygen resistant but do not contain a secondary oxygen barrier of ethylene vinyl alcohol. In August 2022, Exactech expanded its June 2021 recall to include additional Connexion GXL hip liners and other polyethylene liners. Plaintiffs in the actions allege that their knee or hip replacement devices (Optetrak and Truliant and Connexion GXL, respectively) failed prematurely because of degradation of the device's polyethylene component, which resulted in the premature removal (or planned removal) of the prosthesis at issue. All actions are expected to share factual questions concerning the design, manufacture, testing, marketing, packaging and performance of the polyethylene components of their Exactech devices. Plaintiffs allege that oxidation of the moderately cross-linked polyethylene used in the Exactech hip, knee and ankle devices causes inflammatory responses when implanted, generates polyethylene debris, crack, and loosen the device, all of which in turn requires revision surgery. According to the Panel, centralization offers substantial opportunity to streamline pretrial proceedings, reduce duplicative discovery and conflicting pretrial obligations, as well as prevent inconsistent rulings on common Daubert challenges and other issues. While any number of proposed transferee districts could ably handle this litigation, the Eastern District of New York is the appropriate transferee district for these cases, where 26 cases are pending (over a third of the 75 total actions and potential tag-along actions), and is a relatively underutilized transferee district, the Panel adds. A full-text copy of the Court's October 7, 2022 order is available at https://bit.ly/3EshPTk MDL 3046: Panel Denies Centralization of 3 Actions in D.D.C. ------------------------------------------------------------ In the case captioned "In re: U.S. Postal Services Next Generation Delivery Vehicle Acquisitions Program - Record Of Decision Litigation," MDL No. 3046, Chairperson Karen K. Caldwell of the U.S. Judicial Panel on Multidistrict Litigation, has entered an order denying the transfer of three actions, two of which are pending in the Northern District of California and one in the Southern District of New York, to the District of Columbia. These actions involve challenges under the National Environmental Policy Act (NEPA) to the February 23, 2022 record of decision in which the U.S. Postal Service (USPS) announced its plans for purchasing up to 165,000 new delivery vehicles, of which at least 10 percent were to have battery electric powertrains rather than internal combustion engines. The record of decision incorporates a final environmental impact statement (EIS) issued by USPS in January 2022. In June 2022, USPS issued a notice of intent to prepare a supplemental EIS to address the impacts of potential changes in its delivery operations and routes that may warrant increasing the minimum number of electric vehicles to be procured. And, in July 2022, USPS announced that the supplemental EIS would take into account additional proposed operational and other changes. As a result of these changes, USPS stated, it now expects that at least 40 percent of the total quantity of vehicles to be procured will be electric-powered. It also stated that additional vehicle procurements beyond those being analyzed in the forthcoming supplemental EIS will be assessed in subsequent supplements to the EIS, based on then-current market and operational conditions. Because of these changes in USPS's vehicle acquisition plans and the impending issuance of a supplemental EIS, USPS states that it intends to move to stay the three involved actions. Consequently, it is not clear when pretrial proceedings in the actions will commence. Moreover, if the actions are not stayed, or after any stays are lifted, plaintiffs likely will amend their complaints in response to USPS's altered plans and the new EIS. Given these uncertainties about when and how the litigation may progress, the panel concluded that centralization at this time would not be appropriate. A full-text copy of the court's October 7, 2022 order is available at https://bit.ly/3EAVJ0S MDL 3048: Panel Denies Centralization of 7 River Rights Suits ------------------------------------------------------------- In the multi-district litigation captioned IN RE: KLAMATH RIVER BASIN LITIGATION, MDL No. 3048, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation denied a move to centralize five actions from the U.S. District Court for the District of Oregon and two actions from the Northern District of California to the District of Oregon or, alternatively, in the District of Nevada or the District of New Mexico. This litigation involves different aspects of the operation of the Klamath Project, a federal reclamation project that provides water for irrigation in southern Oregon and northern California, and in particular releases of water from Upper Klamath Lake in Oregon to the Klamath River downstream of the Project. One action is brought on behalf of the Yurok Tribe seeking to protect endangered salmon that live or spawn in the Klamath River. Another is brought by the Yurok Tribe seeking the release of water for the Tribe's Boat Dance ceremony. The Klamath Tribes bring two actions seeking to protect the Lost River and short-nose suckers, endangered species of fish that live in Upper Klamath Basin and nearby waters. Plaintiffs sued the Bureau of Reclamation seeking to protect their alleged rights to water from the project for agricultural purposes and to assert the water rights in an Oregon state proceeding known as the Klamath Basin Adjudication. The United States, in turn, seeks a declaration that its obligations under the Endangered Species Act supersede the water rights of agricultural interests. The United States also sued Klamath Drainage District for breach of contract based on water releases used for agricultural purposes. While these actions involve the same bodies of water and many of the same parties, the panel contended that these actions will not entail significant discovery or particularly complex pretrial proceedings. These actions primarily involve legal questions, in particular the determination of the Bureau of Reclamation's obligations under the Endangered Species Act to protect certain species of fish in Upper Klamath Lake and the Klamath River, the Bureau's obligations to release water for tribal religious ceremonies and the Bureau's obligation under the Reclamation Act, to abide by the declaration of water rights in the Klamath Basin Adjudication. Many, if not most, of the actions will be decided on an administrative record, such that discovery will be minimal and summary judgment motion practice likely will resolve the parties' disputes. For this reason, centralization of record-review cases is often inappropriate. Plaintiffs have argued that centralization is necessary because of the potential for inconsistent rulings regarding a limited resource--the water in Upper Klamath Lake. Notably, however, the procedural posture of this litigation also differs from those prior litigations and weighs against centralization, notes the Pane;. These actions already are being conducted in a coordinated fashion, such that many of the most important legal questions will be resolved in short order. Centralization at this juncture would only delay these adjudications and increase the procedural complexity of an already complex litigation. The panel, hence, concluded that these cases can be more effectively and efficiently advanced and resolution achieved more quickly, without centralization. A full-text copy of the Court's October 4, 2022 order is available at https://bit.ly/3V8HG8H MONTANA UNIVERSITY: Cole Loses Class Certification Bid ------------------------------------------------------ In the class action lawsuit captioned as CATHERINE COLE, BARBARA KOOSTRA, MARY-ANN SONTAG BOWMAN, RHONDIE VOORHEES, COURTNEY BABCOCK, LAURA BERKHOUSE, RUTH ANN BURGAD, JANE DOE 1, JENNIFER COOPER, CINDY FERGUSON, FRIEDA HOUSER, SHERRIE LINDBO, JENNIFER MCNULTY, KATHLEEN REEVES, JANE DOE 2, and VIDA WILKINSON, individually and on behalf of all others similarly situated, v. MONTANA UNIVERSITY SYSTEM, UNIVERSITY OF MONTANA–MISSOULA, and JOHN DOE DEFENDANTS 1-50, Case No. 9:21-cv-00088-BMM (D. Mont.), the Hon. Judge Brian Morris entered an order: -- granting the Defendants' motion to deny class certification; and -- denying without prejudice the Plaintiffs' motion for class certification. 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. The Court will deny without prejudice Plaintiffs’ Motion for Class Certification. The University of Montana is a public research university in Missoula, Montana. A copy of the Court's order dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3MhzsXI at no extra charge.[CC] MOSQUITO SQUAD: Parties Seek to Certify Class in Lenorowitz Suit ---------------------------------------------------------------- In the class action lawsuit captioned as SAMUEL LENOROWITZ, individually, And on behalf of all other similarly situated, v. MOSQUITO SQUAD OF FAIRFILED AND WESTCHESTER COUNTY, Case No. 3:20-cv-01922-JBA (D. Conn.), the Parties ask the Court to enter an order: -- granting a 21-day extension to comply with the Court's September 21, 2022 Order; -- granting the Plaintiff's Motion for Class Certification and directing the parties to submit a proposed class notice and a class notice plan. On Thursday, September 21, 2022, the Court issued its Order granting the Plaintiff's Motion for Class Certification and directing the parties to submit a proposed class notice and a class notice plan within 14 days. On Friday, September 23, counsel for the Plaintiff reached out to the Defendant's counsel to set up a time to discuss the class notice and discovery plan. Because of Plaintiff’s counsel’s observance of the intervening Rosh Hashanah holiday (September 26 and 27) and Defendant's counsel’s availability, that conference did not happen until September 29. A copy of the Parties' motion dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3SP4zwo at no extra charge.[CC] The Plaintiff is represented by: Yitzchak Zelman, Esq. 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Telephone: (732) 695-3282 Facsimile: (732) 298-6256 E-mail: yzelman@marcuszelman.com The Defendant is represented by Christopher Sovak, Esq. BUSHELL, SOVAK & KANE LLP 274 Madison Avenue, Suite 901 New York, NY 10016 Telephone: (212) 949-4700 Facsimile: (212) 286-0573 E-mail: csovak@bushellsovak.com - and - Joseph Patrick Sargent, Esq. 1595 Black Rock Turnpike Fairfield, CT 06824 Telephone: 203-325-2323 Facsimile: 203-659-7360 E-mail: josephpsargent@yahoo.com - and - Shannon Z. Petersen, Esq. Sheppard Mullin, Esq. 12275 El Camino Real, Suite 200 San Diego, CA 92130-4092 TelephoneL (858) 720-7483 E-mail: spetersen@sheppardmullin.com MRS. FIELDS: Unlawfully Disclosed Customer Info, Lawsuit Alleges ---------------------------------------------------------------- Kelly Mehorter at classaction.org reports that Mrs. Fields Gifts faces a proposed class action for allegedly failing to notify its catalog customers before disclosing their personal information to third parties for compensation. The 32-page case more specifically alleges Mrs. Fields has violated Utah's Notice of Intent to Sell Nonpublic Personal Information Act (NISNPIA) by failing to notify people who purchased products through the company's catalog that it rents and sells their information to list brokers and data aggregators, appenders and cooperatives. Under the NISNPIA, a business must inform customers in writing or orally that it "may choose to disclose nonpublic personal information" about them for compensation, or provide a "substantially" similar notice, before sharing the data with a third party for profit, the suit relays. According to the complaint, the snack-food company has compiled data about its customers into mailing lists-including their full names, home addresses, status as Mrs. Fields customers, and myriad demographic details-to sell or rent to third-party data aggregators or appenders. Mrs. Fields also sells its mailing lists to "aggressive advertisers, political organizations, and non-profit companies," all without warning consumers, the case contends. The filing argues that Mrs. Fields' "intentional, systematic, and unlawful" practice allows it to "profit handsomely" at the expense of its customers' privacy rights. As a result of Mrs. Fields' alleged misconduct, direct-mail advertisers have sent catalog customers excessive amounts of unwanted junk mail, which can be dangerous to unsuspecting consumers who may fall victim to scammers, the case asserts. Per the complaint, the sensitive information of 284,780 Mrs. Fields consumers is available for 11 cents apiece through list broker Nextmark. The lawsuit looks to cover anyone in the United States who, during the applicable statutory period, had their private purchase information obtained by Mrs. Fields on or after January 1, 2004 as a result of a consumer transaction.[GN] NATIONAL EDUCATION: Wilford Brings Suit to U.S. Supreme Court ------------------------------------------------------------- SCOTT WILFORD, et al. filed on September 15, 2022, a petition for writ of certiorari -- assigned Case No. 22-255 -- asking the U.S. Supreme Court to review the judgment of the United States Court of Appeals for the Ninth Circuit in the case captioned as Scott Wilford, et al., Petitioners vs. National Education Association, et al., Case No. 19-55712. As previously reported in the Class Action Reporter, the Plaintiffs, on behalf of themselves and all other similarly situated non-member public school and community college employees in California, brought a class action suit against the Defendants alleging First Amendment and state law claims arising out of compulsory agency fees. The case is captioned Scott Wilford, et al., individually and on behalf of others similarly situated, Plaintiffs, v. National Education Association, et al., Defendants, Case No. 8:18-cv-01169-JLS-DFM, in the U.S. District Court for the Central District of California. On November 15, 2018, the Defendants filed a motion to dismiss the case, which the Court granted through an Order entered by Judge Josephine L. Staton on May 8, 2019. On June 19, 2019, the Plaintiffs appealed the district court's ruling to the Ninth Circuit. The Ninth Circuit affirmed the district court's judgment dismissing the Plaintiffs' 42 U.S.C. Section 1983 putative class action. The Ninth Circuit panel held that the district court properly dismissed the Plaintiffs' claim for retrospective monetary relief because a public sector union can, as a matter of law, "invoke an affirmative defense of good faith to retrospective monetary liability under section 1983 for the agency fees it collected" prior to the Supreme Court's decision in Janus v. American Federation of State, County & Municipal Employees, Council 31, 138 S.Ct. 2448, 2486 (2018). The Ninth Circuit also held that the district court properly dismissed as moot the Plaintiffs' claims for prospective relief because the Defendants stopped deducting and receiving agency fees after the Supreme Court's decision in Janus disallowed the deduction or receipt of agency fees in their collective bargaining agreements, stopped enforcing statutes permitting the deduction of agency fees, and demonstrated that they are unlikely to rescind the policy changes. Lastly, the Panel found that the district court properly dismissed the Plaintiffs' state law claims because they failed to allege facts sufficient to state a plausible claim. A petition for panel rehearing and petition for rehearing en banc were denied. [BN] Plaintiffs-Petitioners SCOTT WILFORD, et al., individually and on behalf of all others similarly situated, are represented by: John J. Bursch, Esq. BURSCH LAW PLLC 9339 Cherry Valley SE, Ste. 78 Caledonia, MI 49316 Telephone: (616) 450-4235 E-mail: jbursch@burschlaw.com Defendants-Respondents NATIONAL EDUCATION ASSOCIATION OF THE UNITED STATES, et al., are represented by: Scott A. Kronland, Esq. ALTSHULER BERZON, LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 E-mail: skronland@altshulerberzon.com ND PAPER: Faces Suit Over Facility's Offensive Odor Emissions ------------------------------------------------------------- Kelly Mehorter at classaction.org reports that a proposed class action claims that "noxious odors" emanating from Old Town, Maine's ND Paper facility have negatively impacted roughly 5,900 nearby private residences. The 15-page case alleges a "harsh rotten-egg" smell originating from the paper pulp manufacturing mill has invaded nearby private properties on "frequent, recurrent, and intermittent occasions too numerous to list individually." Per the complaint, more than 120 neighboring residents have contacted the plaintiff's counsel to report that the offensive odor emissions have interfered with their ability "to use and enjoy their homes and property." According to one resident's account, the odor is so strong that they can no longer open the windows or go for walks. Another citizen stated that the smell makes having guests over "embarrassing," the suit relays. The lawsuit contends that ND Paper, who bought the Old Town paper pulp mill in 2018 and resumed operations after the facility had been idle since 2015, is liable for the "objectionable" odor due to its failure to adequately maintain its facilities. ND Paper's pulp production process, which involves breaking down wood chips into wood pulp using heat, chemical treatment and water, creates as a byproduct a waste sludge that gets treated in an aerated lagoon, the case relays. Per the suit, the "rotten egg" smell comes from the chemicals used to break down wood fibers, a process that produces gas emissions in the form of total rotten egg-smelling total reduced sulfur and sulfur dioxide. "If the lagoon is not properly maintained," the complaint explains, "the waste sludge can produce noxious odor emissions." The filing states that the Maine Department of Environmental Protection (DEP) Non-Compliance Board has received a high volume of complaints from community members concerning the odor diffusing from the facility. The DEP Bureau of Air Quality has also received at least 50 similar complaints since 2020, the suit asserts. ND Paper now has a link on its website for submitting grievances due to the influx of complaints received by the DEP. [GN] NEW MEXICO: Valdez Appeals Vaccine Mandate Case Dismissal --------------------------------------------------------- TALISHA VALDEZ, et al. are taking an appeal from a court order dismissing their lawsuit entitled Talisha Valdez, et al., individually and on behalf of others similarly situated, Plaintiffs, v. Michelle Lujan Grisham, officially and individually, Acting Under the Color of Law, et al., Defendants, Case No. 1:21-CV-00783-MV-JHR, in the U.S. District Court for the District of New Mexico. As reported in the Class Action Reporter, the original lawsuit was filed two days after Gov. Grisham and the New Mexico Department of Health ("DOH") issued a public health order (the "August 2021 PHO") mandating that certain individuals, including health care and congregate care workers, receive booster COVID-19 vaccines. The Plaintiffs claim that the August 2021 PHO's vaccine requirements violate the Federal Food, Drug, and Cosmetic Act ("FDCA"), their federal constitutional rights to equal protection, substantive due process, and procedural due process, their rights under Article 1, Section 10 of the United States Constitution, and their rights under the New Mexico Constitution. As a result of these alleged violations, they request declaratory relief, "a temporary restraining order to prohibit the Defendants from enforcing public health orders against them and the other putative class members that are similarly situated," a preliminary injunction "to prohibit the Defendants from enforcing public health orders in the arbitrary and capricious manner and fashion engaged by the Defendants," and actual and punitive damages. On September 2, 2021, the Defendants filed a motion to dismiss the Plaintiffs' complaint for failure to state a claim, which the Court granted through an Order entered by Judge Martha Vazquez on August 19, 2022. Judge Vazquez concluded that the Plaintiffs have failed to state a claim upon which relief can be granted on any of their claims allegedly arising under federal law, namely, their FDCA claims, their substantive due process claims, their equal protection claims, their procedural due process claims, and their contractual impairment claims. As a result, those claims will be dismissed with prejudice, and the Court need not reach the issue of qualified immunity. Judge Vazquez declined to exercise supplemental jurisdiction over the Plaintiffs' state law claims and, accordingly, those claims were dismissed without prejudice. The appellate case is captioned as Valdez, et al v. Lujan Grisham, et al., Case No. 22-2112, in the United States Court of Appeals for the Tenth Circuit, filed on September 20, 2022. The briefing schedule in the Appellate Case states that: -- Appellants Jennifer Blackford and Talisha Valdez docketing statement and transcript order form were due on October 4, 2022; and -- Appellants Jennifer Blackford, Michelle Lujan Grisham, David Scrase, and Talisha Valdez notice of appearance was due on October 4, 2022. [BN] Plaintiffs-Appellants TALISHA VALDEZ, et al., individually and on behalf of all others similarly situated, are represented by: A. Blair Dunn, Esq. WARBA 400 Gold Ave SW, Suite 1000 Albuquerque, NM 87102 Defendants-Appellees MICHELLE LUJAN GRISHAM, et al., officially and individually, Acting Under the Color of Law, are represented by: Holly Agajanian, Esq. OFFICE OF THE GOVERNOR 490 Old Santa Fe Trail, Suite 400 Santa Fe, NM 87501 - and - Maria Dudley, Esq. Kyle P. Duffy, Esq. STATE OF NEW MEXICO 490 Old Santa Fe Trail, Suite 400 Santa Fe, NM 87501 Telephone: (505) 476-2200 NEW YORK, NY: District Court Dismisses E.F. v. Dep't. of Education ------------------------------------------------------------------ In the case, E.F., a minor, by and through her parent and natural guardian, Marie Farrell; A.S., a minor, by and through his parent and natural guardian, Mariya Pustovalova; L.P., a minor, by and through his parent and natural guardian, Jennifer Petri, on behalf of themselves and a class of those similarly situated, and Disability Rights New York, Plaintiffs v. THE NEW YORK CITY DEPARTMENT OF EDUCATION; THE CITY OF NEW YORK; RICHARD CARRANZA, in his official capacity as Chancellor of the New York City Department of Education, Defendants, Case No. 21-cv-419 (LDH) (E.D.N.Y.), Judge Lashann Dearcy Hall of the U.S. District Court for the Eastern District of New York grants the Defendants' motion to dismiss the Complaint. Minors E.F., A.S., and L.P. (the "Individual Plaintiffs"), and Disability Rights New York ("DRNY") (collectively, "Plaintiffs") bring this putative class action on behalf of themselves and similarly situated students, against the New York City Department of Education ("DOE"), the City of New York, and Richard Carranza, in his capacity as Chancellor of the DOE, for violations of the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act, the Individuals with Disabilities Education Act ("IDEA"), and the New York City Human Rights Law ("NYCHRL"). The DOE operates the public school system in all five boroughs of New York City. In total, it provides educational programs and services to well over one million students in 1,866 schools. Approximately 227,000 students, nearly one quarter of the entire New York student population, receive special education under the IDEA. The system is divided into 32 community school districts, which provide educational services largely based on geographic criteria. District 31 is the only community school district on Staten Island. It is comprised of over 75 different schools and serves approximately 62,000 students. In addition to the community school districts, the DOE operates District 75 to serve as a citywide school district for students with autism spectrum disorders, significant cognitive delays, sensory impairments, emotional disturbances, and other disabilities. On Staten Island, District 75 is comprised of four schools with roughly 2,000 students. Some of the Staten Island District 75 schools are standalone campuses, while other District 75 schools are co-located on the same campuses as District 31 schools. Additionally, while many students with disabilities attend a District 75 school, some disabled students attend community schools in District 31. The Plaintiffs allege that students with disabilities at standalone District 75 campuses spend each school day "totally segregated" from students without disabilities. Even disabled students at co-located campuses "spend all or almost all of their school day segregated from students without disabilities." The Plaintiffs also allege that many of District 75's "segregated campuses lack essential educational facilities such as libraries, cafeterias, gymnasiums, or playgrounds." According to the Complaint, most District 75 students are "denied the opportunity to be educated in the community schools, magnet or specialized schools, public charter schools, and other schools available to their non-disabled peers." The Plaintiffs also allege that many District 75 students "have no or minimal access to after-school or extracurricular activities, such as clubs, sports teams, or other non-academic enrichment opportunities, as compared to their peers in DOE community schools, thereby denying them the opportunity to develop ties to a local neighborhood and community." Finally, they allege that the academic achievement data that the DOE provides indicates that many District 75 students "fail to achieve basic learning standards." Ultimately, the Plaintiffs maintain that the DOE "continues to maintain a segregated system of education for the students" instead of developing and investing resources to serve students with disabilities in District 31 community schools. E.F. is an 18-year-old student, who has had an individual education plan ("IEP") since she was four years old. She then transferred to a co-located District 75 school, following concerns from her mother that she was not receiving appropriate academic support at her District 31 school. E.F. currently attends a Staten Island District 75 school at its co-located site on the campus of a community high school. She has had limited interaction with her peers without disabilities. As a result, E.F. is shy and socially awkward around students her age. A.S. is a nine-year-old student with ADHD. He has had an IEP since he was three years old. A.S. began kindergarten at a District 31 school. According to the complaint, A.S. was not challenged academically at his District 75 school. Because only students with disabilities attended A.S.'s District 75 school, A.S. had no opportunity to be educated with students without disabilities. In December of 2019, A.S. had a classroom observation at his District 75 school. As a result of his observation, it was determined that A.S. did not require an education in a District 75 school. Thus, in March 2020, A.S. was enrolled in a District 31 community school near his home. L.P. is a 14-year-old student with ADHD. He has had an IEP since he was three years old. L.P. has attended District 31 schools since kindergarten. In sixth grade, he was placed in an integrated transition assistance program ("TAP") with students without disabilities. L.P. was subsequently removed from TAP. L.P. is currently a freshman at a District 31 school. He remains at risk for transfer to a District 75 school because of the DOE's "failure to provide him with appropriate services and supports." DRNY is a non-profit Protection and Advocacy system (P&A system). As a P&A system, they are defined under the Developmental Disabilities Assistance and Bill of Rights Act, the Protection and Advocacy for Individuals with Mental Illness Act of 1986, and the Protection and Advocacy of Individual Rights Act. As a P&A system, DRNY is expressly authorized to pursue legal, administrative, and other remedies to ensure the protection of, and advocacy for, the rights of individuals with disabilities. The Plaintiffs purport to bring three independent federal claims; one under each the ADA, Section 504, and the IDEA. The Defendants maintain that notwithstanding the Plaintiffs' characterization of the claims, the gravamen of this suit relates to the Defendants' failure to provide a FAPE, which is subject to the IDEA's exhaustion requirement and which Plaintiffs have failed to meet. Judge Hall agrees. Admittedly, she finds the Plaintiffs' complaint to be confusing, at best. It purports to bring claims on behalf of "students with disabilities who receive education in a Staten Island District 75 School or classroom or are at a significant risk of being placed in a Staten Island District 75 School or classroom." Yet, of the three named Plaintiffs, only one, E.F., actually attends a District 75 school. That said, even a consideration of those allegations only related to E.F., does not save the Plaintiffs from the IDEA's exhaustion requirement. The Plaintiffs also allege that "E.F. could be educated in a District 31 school." Judge Hall is at a loss as to how their allegations would permit E.F. to pursue a claim under the ADA, the IDEA, or Section 504 if this conduct occurred in another public setting. Indeed, she cannot see how that conduct could even occur elsewhere. Likewise, there is no basis to conclude that any adult could advance the claims raised on these facts. The Plaintiffs' generalized allegations concerning the structure and programming at District 75 schools fare no better. In sum, the Plaintiffs complain that the Defendants deny District 75 students "the many positive benefits of being educated in classrooms with their peers without disabilities, including access to a curriculum that meets the requirements of a regular high school diploma, higher educational expectations set by both teachers and peers, and learning appropriate social skills and behaviors modeled by classmates without disabilities." Judge Hall sees no meaningful distinction between this hypothetical and the Plaintiffs' complaints concerning District 75's curriculum, provision of educational tools, access to extracurricular activities, and the type of diploma awarded. Although the complaint pleaded disability-based discrimination by unnecessarily segregating students with disabilities in separate and unequal educational programs, the "crux of the complaint was that the Defendants failed to provide the educational instruction and related services that the class Plaintiffs need to access an appropriate education in an appropriate environment. Ultimately, on the facts alleged in the case, the exhaustion requirement is similarly triggered. Certainly, as the Plaintiffs note, the exhaustion requirement can be excused under certain circumstances, including where exhaustion would be futile. This is so where a plaintiff alleges a systemic violation. As ably put by one court, where a complaint alleges a systemic violation rooted in DOE policies or practices, hearing officers "have no power to alter the City's policies or general practices and cannot issue prospective relief," citing M.G. v. New York City Dep't of Educ., 15 F.Supp.3d 296, 305 (S.D.N.Y. 2014). Hence, in such a case, exhaustion must be excused. The Plaintiffs maintain, consistent with this principle, they can avoid the exhaustion requirement because they complain of a systemic unlawful practice: "namely, that 'by unnecessarily segregating students with disabilities from their peers without disabilities, the Defendants violate the ADA, Section 504, the IDEA and the NYCHRL, which all require public school districts to provide programs, services, and activities to students with disabilities in the most integrated setting appropriate." Judge Hall does not disagree that the law demands as much. However, absent from the Plaintiffs' complaint are any allegations that support the existence of a policy or practice to the contrary. The Plaintiffs urge the Court not to focus on E.F. alone, but rather the totality of their allegations. Yet, she still cannot discern any alleged practice or policy to "unnecessarily segregate" students with disabilities. None of the generalized allegations concerning District 75 suggest as much. And the Individual Plaintiffs allegations do violence to any such claim. Absent from these allegations is any suggestion that E.F.'s ultimate placement was based on a system or practice employed by the DOE rather than an individualized assessment of E.F. Absent any identifiable system or practice to segregate students with disabilities, Judge Hall is left with a challenge to an individualized placement. Of course, such challenges can and must first be brought before a hearing officer. Contrary to the Plaintiffs' assertion under these circumstances, a hearing officer has the power and authority to issue relief. For the foregoing reasons, Judge Hall grants the Defendants' motion to dismiss the Complaint. A full-text copy of the Court's Sept. 30, 2022 Memorandum & Order is available at https://tinyurl.com/ycxh8kk4 from Leagle.com. PACIFIC NW: Piece-Rate Employees Win Conditional Class Status ------------------------------------------------------------- In the class action lawsuit captioned as Jack Daniel v. Pacific NW LLC, Case No. 2:21-cv-02187-MTL (D. Ariz.), the Hon. Judge Michael T. Liburdi entered an order: 1. granting the Plaintiff's motion for conditional certification, for approval and distribution of notice and for disclosure of contact information to the extent that the following FLSA collective action is certified: "All piece-rate employees who were employed by Pacific NW, LLC, on or after December 21, 2018;" and 2. granting the Plaintiff's Motion, to the extent that it seeks approval for notice and consent procedures; Pacific NW LLC, doing business as Hilton Cabinets, operates as a building products manufacturing company. A copy of the Court's order dated Sept. 28, 2022 is available from PacerMonitor.com at https://bit.ly/3rBv6RI at no extra charge.[CC] PASCHALL TRUCK: Carter Original Bid to Certify Class Nixed as Moot ------------------------------------------------------------------ In the class action lawsuit captioned as Carter, et al., v. Paschall Truck Lines, Inc., et al., Case No. 5:18-cv-00041 (W.D. Ky.), the Hon. Judge Benjamin Beaton entered an order denying the original motion to certify class as moot. The Plaintiff previously filed a motion to certify a class, which was then superseded by an amended motion for class certification. In light of the Plaintiff's decision to amend the original motion, and the Court's subsequent decision to deny that amended motion, the Court denies the original motion to certify as moot. The suit alleges violation of the Fair Labor Standards Act.[CC] PHILADELPHIA, PA: To Install Curb Ramps as Settlement in ADA Suit ----------------------------------------------------------------- Danielle McLean at smartcitiesdive.com reports that Dive Brief: Philadelphia has agreed to build, install or remediate at least 10,000 curb ramps over the next 15 years - hitting 2,000-ramp milestones every three years - in a lawsuit settlement with a class of disabled city residents, according to disability rights groups in a press release. If approved by the court, the settlement would require city officials to install accessible curb ramps where they are missing or whenever it is feasible during roadway construction projects involving pedestrian walkways and to fix existing inaccessible ramps. The city also agreed to establish a system for residents to request new curb ramps or repairs to existing ramps and post progress reports on the required work on the city's website. "Activists and advocates fighting for disability rights in Philadelphia, like myself, now have a victory here in our city that we've wanted for a long time," said Tony Brooks, a plaintiff in the lawsuit, in a statement. "I'm very happy that, with this settlement, we're going to have safer and more accessible sidewalks." Dive Insight: People with disabilities have often turned to the courts to make U.S. cities accessible and compliant with the federal Americans with Disabilities Act and Rehabilitation Act standards. In 2019, New York City, for instance, settled with disability rights groups to address the city's inaccessible curb cuts, potholes, sloped ramps, and lack of detectable warnings for blind pedestrians. Last year, a class of wheelchair users sued the city of Baltimore, claiming the city's sidewalks failed to meet ADA requirements. And Uber reached a multimillion-dollar settlement with U.S. Justice Department in July over its practice of imposing wait time fees for passengers who need more time to board vehicles due to their disability. In Philadelphia, the plaintiffs, represented by the nonprofit legal center Disability Rights Advocates and Philadelphia attorney David Ferleger, filed a class-action lawsuit in 2020, claiming the city failed to install, remediate and maintain curb ramps in violation of the ADA. In the settlement agreement, the city did not admit that it violated or failed to comply with the ADA or admit any liability to the plaintiffs or the settlement class. Latoya Maddox, president of Disabled in Action of Pennsylvania, said in a statement that thousands of people with disabilities in Philadelphia would benefit from the settlement agreement. "Having a plan to make curb ramps more accessible will benefit many members of the disability community including people like myself, who use wheelchairs, people who use other mobility devices, and people who are blind or have low vision for years to come," Maddox said. [GN] PRO CUSTOM: Bid to Dismiss and to Arbitrate in Venson Suit Denied ----------------------------------------------------------------- In the case, MARK VENSON, ALISSA WINFREY, AHMED SUNKINS, O'NEIL HALL, and BASIL OGUEKWE, Plaintiffs v. PRO CUSTOM SOLAR LLC d/b/a MOMENTUM SOLAR, JEFFREY ANCLIEN and BRIAN ALPER, Defendants, Civil Action No. 19-19227 (ES) (MAH) (D.N.J.), Judge Esther Salas of the U.S. District Court for the District of New Jersey denies the Defendants' motion to dismiss the Second Amended Complaint and to compel arbitration against Plaintiffs Sunkins, Hall, and Oguekwe only without prejudice pending limited fact discovery on the issue of arbitrability. The Plaintiffs filed this putative class action on behalf of themselves and all other similarly situated employees against the Defendants for alleged violations of the Civil Rights Act of 1866, 42 U.S.C. Section 1981, the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. Section 10:5-12, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e. The Plaintiffs are former Momentum employees who worked in Momentum's New Jersey call center at various times from 2018 to 2020. According to the SAC, the Defendants regularly subjected the Plaintiffs and other "Black call center employees who worked for Momentum" to racial hostility and discrimination, including "highly offensive and patently racist comments;" lower pay than "similarly-situated white employees;" and retaliation for reporting or complaining "about Defendants' discriminatory conduct." The Plaintiffs allege that "discrimination and retaliation are not unusual at Momentum" but are "part and parcel to its standard operating patterns." Mr. Venson initiated this action on Oct. 22, 2019, alleging five causes of action against the Defendants on behalf of himself and "all Black call center employees who worked for Momentum out of its New Jersey call center during the full statutory period." The initial complaint raised claims for discrimination and retaliation under Section 1981 and the NJLAD. On April 2, 2021, Venson filed an amended complaint which raised two additional claims under Title VII against Momentum. On Aug. 30, 2021, Venson filed a motion for leave to amend the amended complaint to add four putative class members, those being Winfrey, Sunkins, Hall, and Oguekwe. The Defendants opposed, arguing in part that the claims of Sunkins, Hall, and Oguekwe would be futile because they are subject to binding arbitration. Magistrate Judge Hammer granted in part Venson's motion for leave to amend and rejected Defendants' argument "without prejudice to their right to later file a motion to compel arbitration or to dismiss the SAC." Mr. Venson filed the SAC on Nov. 30, 2021, adding Winfrey, Sunkins, Hall, and Oguekwe as plaintiffs. As permitted by Judge Hammer, the SAC asserts the following claims: (i) discrimination in violation of Section 1981 against all Defendants by all Plaintiffs; (ii) retaliation in violation of Section 1981 against all Defendants by Venson and Oguekwe; (iii) discrimination in violation of NJLAD against Momentum by all Plaintiffs; (iv) retaliation in violation of NJLAD against Momentum by Venson and Oguekwe; (v) aiding and abetting violations of the NJLAD against Defendants Anclien and Alper by all Plaintiffs; (vi) discrimination in violation of Title VII against Momentum by Venson; and (vii) retaliation in violation of Title VII against Momentum by Venson. On Dec. 8, 2021, the Defendants moved to dismiss the SAC and to compel Plaintiffs Sunkins, Hall, and Oguekwe to arbitrate their claims pursuant to Federal Rule of Civil Procedure 12(b)(1), or, alternatively, to dismiss the SAC pursuant to Rule 12(b)(6). The Motion is fully briefed. In their moving brief, the Defendants assert, and the NJLAD. The Plaintiffs do not dispute, that Oguekwe, Sunkins, and Hall executed individual arbitration agreements with Momentum on Aug. 2, 2019, Sept. 9, 2019, and Oct. 19, 2019, respectively. The Defendants first assert pursuant to Rule 12(b)(1) that the Court lacks subject matter jurisdiction over Sunkins, Hall, and Oguekwe's claims in light of the Arbitration Agreements. Alternatively, they request that the Court dismisses these Plaintiffs' claims and order them to arbitrate pursuant to Rule 12(b)(6). The Plaintiffs oppose, arguing that the Arbitration Agreements should be set aside because they were obtained with the intention of diminishing the putative class action brought by Venson and the conditions surrounding the signing of the Arbitration Agreements were coercive. As an initial matter, Judge Salas must determine which standard of review governs the Defendants' Motion -- Rule 12(b)(1) or Rule 12(b)(6). The Defendants contend that the Court lacks subject matter jurisdiction under Rule 12(b)(1), which "provides for the efficient disposal of litigation that is barred from the courts by an arbitration agreement." The Plaintiffs oppose, asserting that "Rule 12(b)(1) is not the appropriate mechanism to seek to compel arbitration because a motion to compel arbitration is not jurisdictional in nature." Judge Salas declines to consider the Motion under Rule 12(b)(1). She holds that with no clear authority on whether Rule 12(b)(1) is the proper vehicle for dismissing a suit based on an arbitration agreement within this Circuit, an examination of the FAA is instructive. If the presence of an arbitration agreement between the parties divested the court of its subject matter jurisdiction, the Court would have no power to stay the case and would be required to dismiss it instead. Further, Section 4 of the FAA states that "upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court will make an order directing the parties to proceed to arbitration." This language suggests that a court at least "retains jurisdiction to determine the threshold question of whether there is a valid arbitration agreement between the parties." Accordingly, given the lack of clear authority on this issue, Judge Salas "is of the view that the better course is to address the Defendants' motion under Rule 12(b)(6)" rather than under Rule 12(b)(1). She now turns to the Defendants' motion to compel arbitration pursuant to Rule 12(b)(6). The Defendants argue that the claims of Sunkins, Hall, and Oguekwe can be properly dismissed under Rule 12(b)(6) because the Arbitration Agreements prohibit them from pursuing their claims in Court. In response, the Plaintiffs argue that resolution of the motion under Rule 12(b)(6) is inappropriate because "the Complaint says nothing about arbitration or the arbitration agreements at issue." Because (i) the affirmative defense of arbitrability is not apparent on the face of the SAC or documents integral to or relied upon therein, and (ii) the Plaintiffs have come forth with additional facts to place their Arbitration Agreements at issue, Judge Salas declines to consider the Motion under Rule 12(b)(6). She opines that the Plaintiffs' SAC makes no explicit reference to the Arbitration Agreements, nor are the Arbitration Agreements attached to the SAC as exhibits. Further, the Arbitration Agreements are not integral to or relied upon in the SAC nor are they incorporated by reference in the SAC. In addition, Judge Salas opines that the Plaintiffs' claims do not arise under the Arbitration Agreements. Nor do their allegations "turn on the 'terms and conditions' of the Agreement that contains the subject arbitration provision." Similarly, the SAC never mentions, much less discusses Sunkins, Hall, or Oguekwe's Arbitration Agreements, or any documents that contain or incorporate the Arbitration Agreements. Even if the SAC does reference terms of the Plaintiffs' employment, as the Defendants argue, it does not reference the Arbitration Agreements purportedly entered into by Sunkins, Hall, and Oguekwe. Finally, the Plaintiffs raise facts that place the Arbitration Agreements at issue. Therefore, evaluating the motion under Rule 56, rather than 12(b)(6), is proper. Accordingly, Judge Salas will not evaluate the Defendants' Motion pursuant to Rule 12(b)(6). The Defendants maintain that in the event the Court declines to apply Rule 12, it should decide the Motion under Rule 56 without further discovery. The Plaintiffs contend that there are significant questions of fact regarding the enforceability of their Arbitration Agreements that require additional discovery. Judge Salas opines that courts routinely deny motions to compel arbitration and allow limited discovery where the complaint is unclear regarding the parties' agreement to arbitrate, and the asserted claims do not arise under the parties' arbitration agreement at issue. Further, she is mindful of the fact that "'a party may, in an effort to avoid arbitration, contend that it did not intend to enter into the agreement which contained an arbitration clause.'" At the same time, there may be legitimate disputes over an alleged agreement to arbitrate and limited discovery is appropriate where, as in the case, the "parties have come forth with facts that put the formation of the arbitration agreement at issue," such as whether coercive tactics were employed, the sophistication of the Plaintiffs, and whether there was a disparity in bargaining power Accordingly, limited discovery on the issue of arbitrability is appropriate because the Motion requires the Court to examine documents extraneous to the pleading and because the Plaintiffs have put the formation of the Arbitration Agreements at issue. After the necessary discovery is complete, the Defendants may renew their arbitrability arguments in a motion for summary judgment pursuant to Rule 56. Finally, the Defendants argue that should the Court determines the Motion requires resolution as a Rule 56 Motion with the need for discovery on the issue of arbitrability, it should stay all other discovery and pleadings pending its decision on the Motion. The Plaintiffs also ask the Court to stay discovery pending a decision on the Motion. Courts consider a number of factors when determining whether a request to stay is appropriate, including "(1) whether a stay would unduly prejudice or present a clear tactical disadvantage to the non-moving party; (2) whether denial of the stay would create a clear case of hardship or inequity for the moving party; (3) whether a stay would simplify the issues and the trial of the case; and (4) whether discovery is complete and/or a trial date has been set." Judge Salas holds that the balance of the factors weighs against a stay of discovery. First, prejudice to the nonmoving party does not weigh heavily in the Court's analysis because the Plaintiffs make the same request. Second, fact discovery is nearly complete and has been ongoing with respect to the newly added putative class members for nearly a year. Third, granting a stay when fact discovery is nearly complete and has been ongoing for almost a year would not simplify the issues and trial of the case but would rather create case management problems and unnecessary delay. Fourth, discovery in the matter is nearly complete. Accordingly, Judge Salas declines to stay discovery. For the same reasons, she declines the Defendants' request to stay the pleadings. Since the Plaintiffs have not opposed the request to stay the pleadings, the first factor does not weigh heavily in the Court's analysis. On the one hand, Judge Salas finds that denying a stay of the pleadings could create a hardship for the Defendants, because they would be required to file a responsive pleading with respect to the claims of Sunkins, Hall, and Oguekwe regardless of whether those plaintiffs' claims proceed to arbitration. However, staying the pleadings altogether will not simplify the trial of the case, but will rather unnecessarily delay its progression with respect to the claims of Venson and Winfrey, who the Defendants do not contend are subject to arbitration. Alternatively, if Judge Salas were to stay the pleadings as to Sunkins, Hall, and Oguekwe only, she says the Defendants would still be required to file a responsive pleading as to Venson and Winfrey. This could potentially require the Defendants to file multiple answers for allegations that are overlapping -- which would burden both the Defendants and the Court. Thus, the third factor weighs against a stay. The fourth factor also weighs against a stay of the pleadings because discovery is nearly complete. Accordingly, on balance, Judge Salas declines the Defendants' request to stay the pleadings. For the reasons she stated, Judge Salas denies the Defendants' Motion without prejudice to their ability to renew their arbitrability arguments in a motion for summary judgment pursuant to Rule 56, pending limited fact discovery on the issue of arbitrability. The Defendants may file a renewed motion to compel arbitration under Rule 56 within 30 days of the close of discovery. Judge Salas denies the Defendants' and the Plaintiffs' requests to stay discovery and the Defendants' request to stay the pleadings. An appropriate Order accompanies Judge Salas' Opinion. A full-text copy of the Court's Sept. 30, 2022 Opinion is available at https://tinyurl.com/muxzn4ry from Leagle.com. PROGRESSIVE DIRECT: Freeman Files Bid for Class Certification ------------------------------------------------------------- In the class action lawsuit captioned as Lynn Freeman, on behalf of herself and all others similarly situated, v. Progressive Direct Insurance Company, Case No. 1:21-cv-03798-DCC (D.S.C.), the Plaintiff asks the Court to enter an order certifying the following class of individuals: "All persons who made a first-party claim on a policy of insurance issued by Progressive Direct Insurance Company to a South Carolina resident who, from October 15, 2018 through the date an order granting class certification is entered, received compensation for the total loss of a covered vehicle, where that compensation was based on an Instant Report prepared by Mitchell and the actual cash value was decreased based upon Projected Sold Adjustments to the comparable vehicles used to determine actual cash value." Progressive Direct Insurance Company has implemented a systemic and uniform practice of undervaluing the amount owed to its insureds when their vehicle is totaled. It is undisputed that when insureds suffer a total loss to their vehicles, Progressive's form insurance policy calls for payment of the vehicle’s actual cash value (ACV), less any deductible. Progressive, through its vendor, Mitchell, calculates ACV by using the comparable, or "comp," methodology, which involves taking the price of comparable vehicles listed for sale and then making standard adjustments based on differences between the comparable vehicles and the totaled vehicle for options, mileage, and condition, which is an appropriate method to determine ACV. For the entirety of the Class Period, Progressive used form insurance policies with materially identical language for Plaintiff and all Class members. The Policy explains that ACV will be calculated based on the "market value, age, and condition" of the vehicle. The Plaintiff and all Class members experienced what Progressive determined to be a total loss of their insured vehicles. A total loss occurs where Progressive determines it is impossible or uneconomical to repair the vehicle. Consistent with its Policy terms, Progressive’s uniform practice is to base the total-loss payment on the vehicle's ACV. A copy of the Plaintiff's motion to certify class dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3McFCbH at no extra charge.[CC] The Plaintiff is represented by: Beattie B. Ashmore, Esq. BEATTIE B. ASHMORE, P.A. 650 E. Washington Street Greenville, SC 29601 Telephone: (864) 467-1001 Facsimile: (864) 672-1406 E-mail: beattie@beattieashmore.com - and - Jeffrey S. Cashdan, Esq. Zachary A. McEntyre, Esq. J. Matthew Brigman, Esq. Allison Hill White, Esq. Julia C. Barrett, Esq. KING & SPALDING LLP 1180 Peachtree Street, N.E. Atlanta, Georgia 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100 E-mail: jcashdan@kslaw.com zmcentyre@kslaw.com mbrigman@kslaw.com awhite@kslaw.com jbarrett@kslaw.com PROGRESSIVE PALOVERDE: Class Certification Bid Due Feb. 3, 2023 --------------------------------------------------------------- In the class action lawsuit captioned as ROBIE KINSLEY, individually and on behalf of others similarly situated, v. PROGRESSIVE PALOVERDE INSURANCE COMPANY, Case No. 3:22-cv-00048-SDD-RLB (M.D. La.), the Hon. Judge Richard L. Bourgeois, Jr. entered an order that the joint motion to amend scheduling order is granted, and the scheduling order is amended as follows: 1. Exchanging initial disclosures Expired required by F.R.C.P. 26(a)(1) is: 2. The deadline to join other Expired. parties or to amend the pleadings is: 3. Disclosure of identities and resumes of experts for class certification: Plaintiff(s): December 5, 2022 Defendant(s): January 11, 2023 4. Class certification motion and exchange expert reports: Plaintiffs' motion for class February 3, 2023 certification: Plaintiffs' class certification February 3, 2023 expert report: Defendant's opposition to motion April 7, 2023 for class certification: Defendant's class certification April 7, 2023 expert report: Plaintiffs' reply in support of May 8, 2023 class certification: A copy of the Court's order dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3T5QDOf at no extra charge.[CC] RESOLUTE FOREST: Monteverde Firm Probes Possible Securities 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: Resolute Forest Products Inc. (NYSE: RFP), relating to its proposed acquisition by The Paper Excellence Group, via Domtar Corp. Under the terms of the agreement, RFP shareholders will receive $20.50 in cash plus one Contingent Value Right per share they own. Click here for more information: https://www.monteverdelaw.com/case/resolute-forest-products-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 over 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] ROYAL SEAS: McCurley Loses Renewed Bid to Certify Class -------------------------------------------------------- In the class action lawsuit captioned as JOHN McCURLEY, individually and on behalf of all other similarly situated, v. ROYAL SEAS CRUISES, INC., Case No. 3:17-cv-00986-RSH-AGS (S.D. Cal.), the Hon. Judge Robert S. Huie entered an order denying the defendant's renewed motion to certify class and provisionally granting defendant's motions to exclude reports and testimony, as follows: 1. The Defendant's renewed motion to decertify class is denied. 2. The Parties' objections filed in connection with the above-mentioned motion, are overruled as moot. 3. The Defendant's Second Renewed Motion to Exclude Testimony and Reports of Wesley Weeks is granted as to the witness's reports on the grounds of hearsay, and is provisionally granted as to the witness's testimony on grounds of 9 relevance, without prejudice to Plaintiff seeking leave to present such testimony. 4. The Defendant's Second Renewed Motion to Exclude Testimony and Reports of Christina Peters-Stasiewicz is granted as to the witness's reports on the grounds of hearsay; and is provisionally granted as to the witness's testimony on grounds of relevance, without prejudice to Plaintiff seeking leave to present such testimony. 5. The Defendant's Renewed Motion to Exclude Testimony and Reports of Nathan Bacon is granted as to the witness's report on the grounds of hearsay and is provisionally granted as to the witness's testimony on grounds of relevance, without prejudice to Plaintiff seeking leave to present such testimony. On the basis of relevance, the Court provisionally grants the Bacon Motion and excludes any testimony to be offered by Bacon at trial. The Plaintiffs must seek and obtain leave of Court before presenting such testimony. Such a request must: 1. be tailored to the testimony that Plaintiffs actually seek to present, 2. establish admissibility under Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and 3. identify how the testimony is consistent with the disclosure requirements of Fed. R. Civ. P. 26. On July 30, 2018, Plaintiffs filed a Motion to Certify Class. On March 17, 2020, the Defendant filed a Motion to Decertify Class. On March 23, 2020, the Defendant filed a motion to exclude the testimony and report of Bacon. On March 27, 2020, both the Defendant and Plaintiffs moved for summary judgment. A copy of the Court's order dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3Cb5TCC at no extra charge.[CC] RUST-OLEUM CORP: Bush File Bid for Class Certification ------------------------------------------------------ In the class action lawsuit captioned as ANTHONY BUSH, individually and on behalf of all others similarly situated, v. RUST-OLEUM CORPORATION, Case No. 3:20-cv-03268-LB (N.D. Cal.), the Plaintiff asks the Court to enter an order: 1. certifying a California Subclass of: "All residents of California who, within four years prior to the filing of this Complaint, purchased the Products;" Excluded from the Class are: (i) Defendant, its assigns, successors, and legal representatives; (ii) any entities in which Defendant has controlling interests; (iii) federal, state, and/or local governments, including, but not limited to, their departments, agencies, divisions, bureaus, boards, sections, groups, counsels, and/or subdivisions; and (iv) any judicial officer presiding over this matter and person within the third degree of consanguinity to such judicial officer; 2. appointing him as Class Representative; and 3. appoinitng Ryan J. Clarkson, Katherine A. Bruce, and Kelsey J. Elling of Clarkson Law Firm, P.C., and Christopher D. Moon and Kevin O. Moon of Moon Law APC as Class Counsel pursuant to Rule 23(g). Rust-Oleum is a manufacturer of protective paints and coatings for home and industrial use. A copy of the Plaintiff's motion to certify class dated Sept. 28, 2022 is available from PacerMonitor.com at https://bit.ly/3V7Zgtp at no extra charge.[CC] The Plaintiff is represented by: Ryan J. Clarkson, Esq. Shireen M. Clarkson, Esq. Katherine A. Bruce, Esq. Kelsey J. Elling, Esq. CLARKSON LAW FIRM, P.C. 22525 Pacific Coast Highway Malibu, CA 90265 Telephone: (213) 788-4050 Facsimile: (213) 788-4070 E-mail: rclarkson@clarksonlawfirm.com sclarkson@clarksonlawfirm.com kbruce@clarksonlawfirm.com kelling@clarksonlawfirm.com - and - Christopher D. Moon, Esq. Kevin O. Moon, Esq. MOON LAW APC 228 Hamilton Ave., 3 rd Fl Palo Alto, CA 94301 Telephone: (619) 915-9432 Facsimile: (650) 618-0478 E-mail: chris@moonlawapc.com kevin@moonlawapc.com SCHMITT INDUSTRIES: Bids for Lead Plaintiff Appointment Due Dec. 12 ------------------------------------------------------------------- The Class: Robbins LLP informs investors that a shareholder filed a class action on behalf of all persons who acquired shares of Schmitt Industries, Inc. SMIT securities between September 1, 2020 and September 20, 2022, for violations of the Securities Exchange Act of 1934. What Now: Similarly situated shareholders may be eligible to participate in the class action against Schmitt. Shareholders who want to be appointed lead plaintiff for the class must file their papers by December 12, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. You do not have to participate in the case to be eligible for a recovery. For more information, click here. All representation is on a contingency fee basis. Shareholders pay no fees or expenses. What is this Case About: Schmitt Industries, Inc. (SMIT) Had Deficient Internal Controls Over Financial Reporting According to the complaint, defendants failed to disclose that: (1) Schmitt continuously downplayed it serious issues with internal controls; (2) Schmitt's financial statements from August 31, 2021 to the present included "certain errors"; and (3) as a result, Schmitt would have to restate its previously filed financial statements for certain periods. On September 20, 2022, Schmitt announced it would restate its financial statements from August 31, 2021 to the present, and expected to report at least one material weakness. Further, the Company's financial statements from August 31, 2021 through February 28, 2022, should no longer be relied upon due to errors in the treatment of certain general and administrative expenses that were excluded from the statement of operations. On this news, Schmitt's stock fell 17% to close at $3.12 per share on September 21, 2022. [GN] SHOE SHOW: Smith Bid for Class Cert Denied w/o Prejudice --------------------------------------------------------- In the class action lawsuit captioned as SARAH SMITH, MICHAEL CRISCO, JEFFREY MORROW, Individually and as representatives of a class of similarly situated persons, v. SHOE SHOW, INC., BOARD OF TRUSTEES OF SHOE SHOW RETIREMENT SAVINGS PLAN; JOHN VAN DER POEL, ROBERT TUCKER, LISA TUCKER, and SPENCER NORTHCUTT, Case No. 1:20-cv-00813-WO-JEP (M.D.N.C.), the Court entered an order denying without prejudice motion for class certification and motion for appointment of Fitzgerald Law as Class Counsel. The Court said, "On September 29, 2022, the Plaintiffs filed their Motion for preliminary approval of class Action settlement, preliminarily certifying a class for settlement purposes, approving form and manner of settlement notice, preliminarily approving plan of allocation and scheduling a date for a fairness hearing. In that motion, Plaintiffs move for appointment of Class Representatives and Class Counsel. Shoe Show is an American footwear retailer based in Concord, North Carolina. It operates shoe stores throughout the United States under the brands Shoe Show, The Shoe Dept., The Shoe Dept. Encore, Shoebilee!, Burlington Shoes, and Shoe Show Mega. A copy of the Court's order dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3VdqE9B at no extra charge.[CC] SILVERBACK THERAPEUTICS: Monteverde Firm Probes Securities 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: Silverback Therapeutics, Inc. (Nasdaq: SBTX), relating to its proposed merger with ARS Pharmaceuticals, Inc. Under the terms of the agreement, SBTX equity holders are expected to own approximately 37% of the combined company. Click here for more information: https://www.monteverdelaw.com/case/silverback-therapeutics-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 over 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] SOLARWINDS CORP: NYC District Council File Bid for Class Status --------------------------------------------------------------- In the class action lawsuit re SolarWinds Corporation Securities Litigation, Case No. 1:21-cv-00138-RP (W.D. Tex.), the Lead New York City District Council of Carpenters Pension Fund asks the Court to enter an order: 1. certifying this action as a class action under Federal Rule of Civil Procedure 23; 2. appointing Lead Plaintiff as the Class Representative; and 3. approving Lead Plaintiff'’s selection of Bernstein Litowitz as Class Counsel. The action asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act against SolarWinds, two of its top executives, and the Private Equity companies that control it. Like most securities-fraud actions, this case is ideally suited for class certification because it arises from common public misrepresentations and omissions that harmed tens-of-thousands of investors in SolarWinds stock in a like manner during the Class Period, the lawsuit says. A copy of the Plaintiff's motion dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3SUBZcC at no extra charge.[CC] The Plaintiff is represented by: Gerald T. Drought, Esq. Frank B. Burney, Esq. MARTIN & DROUGHT, P.C. Weston Centre 112 E. Pecan Street, Suite 1616 San Antonio, TX 78205 Telephone: (210) 227-7591 Facsimile: (210) 227-7924 E-mail: gdrought@mdtlaw.com - and - Jonathan D. Uslaner, Esq. John J. Rizio-Hamilton, Esq. Benjamin W. Horowitz, Esq. Thomas Z. Sperber, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 554-1400 Facsimile: (212) 554-1444 E-mail: JonathanU@blbglaw.com Johnr@blbglaw.com Benjamin.Horowitz@blbglaw.com Thomas.Sperber@blbglaw.com SOULBOUND STUDIOS: Class Action Over Investment Refund Dismissed ---------------------------------------------------------------- Joseph Bradford at mmorpg.com reports that for those who have been wondering about the status of the ongoing class action lawsuit against Chronicles of Elyria developer Soulbound Studios, it looks as though that lawsuit has been dismissed in court. As such, Elyria founder Jeromy Walsh took to the quarterly update to do a victory lap of sorts over the news. The lawsuit, which was filed in response to Chronicles of Elyria abruptly shutting down after delivering not more than a basic parkour demo in 2020, was filed by backers who were demanding refunds of their investment in Elyria. This is because Elyria, a Kickstarted MMORPG, failed to deliver on the promises made by Walsh when the funding began. Walsh a few weeks later rolled this back, claiming that he effectively misspoke and that the studio hadn't shuttered. However, a few weeks later, backers who were filing suit had already started to hear from the Washington State Attorney General on the case. The lawsuit has progressed since then, with updates over the last two years such as the fact the California suit was merged with the Washington lawsuit as well as the news that the suit against SBS had to conclude before the Xsolla fight could be taken up coming in slowly. However, in an update to the Elyria website, Walsh himself is stating that the lawsuit itself has been dismissed. And the fact that he's publicly talking about it lends weight to the claim, as legally speaking most companies will not speak directly on ongoing litigation. However, discussion in the ongoing COE Lawsuit Discord channel where many of those who have filed suit against SBS have gathered started to talk around the 6th of October about the possibility the lawsuit itself was dismissed. The official court document, filed on the 3rd of October, confirms this. As such, Walsh took to the most recent quarterly update to give readers an update on the studio, Kingdoms of Elyria, and do a weird victory lap regarding the lawsuit's dismissal. Walsh goes on to spin this as a victory for those companies who are looking at crowdsource funding as their primary way to make a game happen, stating that those who raise the funds to build the game need to feel "secure" in that they won't be required to pay back funds in the result of a failed project. Weirdly, while this is an obvious victory for Walsh himself, he extends that victory to the backers of Chronicles of Elyria as well, spinning it as a way for the team to now focus all its efforts on making CoE finally come to fruition. This is also before Walsh admits that there hasn't been any meaningful work done on Kingdoms of Elyria, the stand-alone sim that is meant to fuel the development of the MMO that was actually promised, from an engineering standpoint, in months. Instead, Walsh has been working as a software engineer outside of Chronicles of Elyria to keep the studio afloat, and in line with the previous Quarterly update where he basically claimed he had no more money, Walsh talks about how he's effectively mortgaged his future on this game in order to fund the studio. Claiming to be $500K in debt without any actual income coming in for two years (as well as taking out over $250K of taxpayer dollars in Covid-19 PPP Loans), Walsh acknowledges too that the dream of being picked up by an investor or publisher is likely out of the window thanks to the lawsuit. He also blames "the current sentiment and misinformation" that exists about SBS on the internet as not being an attractive candidate to be acquired. Walsh also states that he hopes that this prompts the most "cynical" of backers to give this another try, though if future tests try to throw shady NDA language at them as has been done in the past, they might not. As it stands now, the decision can likely be appealed in court, though whether those will be willing to move forward on appeals remains to be seen. What also remains to be seen is whether Walsh can hit the updated timeline of 2024 for the release of Chronicles of Elyria. [GN] SSM HEALTH: Brashear Seeks to Certify Class of Hourly Employees --------------------------------------------------------------- In the class action lawsuit captioned as SARAH J. BRASHEAR, Individually and on behalf of all others similarly situated, v. SSM HEALTH CARE CORPORATION, Case No. 4:22-cv-00569-SRC (E.D. Mo.), the Plaintiff asks the Court to enter an order: 1. conditionally certifying a class of: "all hourly employees who worked for SSM Health Care Corporation, or any of its subsidiaries, anywhere in the United States, at any time from May 24, 2019 through the final disposition of this matter, and were subject to an automatic meal break pay deduction pursuant to the Fair Labor Standards Act (FLSA;" 2. approving the form of Plaintiffs' proposed Notice; 3 setting a 60 day notice period; 4. authorizing Plaintiffs' counsel to mail, e-mail, and text- message the Notice at the beginning of the 60 day notice period; 5. authorizing the Plaintiffs' counsel to send a reminder Notice 30 days prior to the notice deadline; 6. directing SSM to post the Court-approved Notice in a conspicuous location next to the time clocks at all SSM worksites for the duration of the 60-day opt-in period; 7. directing SSM to produce a list of all Putative Class Members, in a computer readable format (such as Excel), who worked for SSM at any time from May 24, 2019 through the final disposition of this matter and were subject to an automatic meal break pay deduction, including each Putative Class Members' contact information; SSM Health is a Catholic, not-for-profit United States health care system with 11,000 providers and nearly 39,000 employees in four states, including Wisconsin, Oklahoma, Illinois, and Missouri. A copy of the Plaintiff's motion to certify class dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3ebSQJ6 at no extra charge.[CC] The Plaintiff is represented by: Sarah Jane Hunt, Esq. LAW OFFICES OF KENNEDY HUNT, P.C. 906 Olive Street, Suite 200 St. Louis, MO 63101 Telephone: (314) 872-9041 Facsimile: (314) 872-9043 E-mail: sarahjane@kennedyhuntlaw.com - and - Clif Alexander, Esq. Carter T. Hastings, Esq. ANDERSON ALEXANDER , PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com carter@a2xlaw.com STERIGENICS US: Scheduling Order Entered in Vallejo Class Suit -------------------------------------------------------------- In the class action lawsuit captioned as ALEXANDER VALLEJO, individually and on behalf of others similarly situated, v. STERIGENICS U.S., LLC, et al., Case No. 3:20-cv-01788-AJB-AHG (S.D. Cal.), the Hon. Judge Allison H. Goddard entered a scheduling order setting discovery deadlines and class certification motion deadline as follows: 1. Any motion to join other parties, November 21, 2022 amend the pleadings, or file additional pleadings shall be filed by: 2. Fact and class discovery are not February 3, 2023 bifurcated, but class discovery must be completed by: 3. The Plaintiff must file a motion March 17, 2023 for class certification by: Sterigenics provides bio-technological services. The Company offers medical and pharmaceutical sterilization, laboratory testing, and food safety. A copy of the Court's order dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3Miu86w at no extra charge.[CC] SYNCHRONY BANK: Lucas Seeks to Certify Settlement Class ------------------------------------------------------- In the class action lawsuit captioned as DIANNE BEAR KING LUCAS, on behalf of herself and others similarly situated, v. SYNCHRONY BANK, Case No. 4:21-cv-00070-PPS-JEM (N.D. Ind.), the Plaintiff asks the Court for an order preliminarily approving the settlement she reached with Synchrony, on behalf of herself and the following settlement class: "All persons and entities throughout the United States (1) to whom Synchrony Bank placed, or caused to be placed (either by one of its own employees or by an agent or vendor), a call, (2) directed to a telephone number assigned to a cellular telephone service, (3) in connection with which Synchrony Bank or one of its agents or vendors used an artificial or prerecorded voice, (4) from October 16, 2020 through the date of the preliminary approval order, (5) where the subject of the call was a Synchrony Bank account that did not belong to the recipient of the call, and (6) where the recipient of the call did not provide Synchrony Bank the telephone number to which it placed, or caused to be placed, the call." The settlement requires Synchrony to create a non-reversionary cash settlement fund of $2,600,000. Each participating member of the class will be entitled to his or her pro rata share of the settlement fund, less the costs of notice and claims administration, and any attorneys' fees, litigation costs, expenses, and service award that this Court approves. Ms. Lucas and her counsel -- whose qualifications include substantial experience with Telephone Consumer Protection Act (TCPA) class actions -- believe the settlement is fair, reasonable, and adequate under Federal Rule of Civil Procedure 23(e), and in the best interests of the members of the class. A copy of the Plaintiff's motion to certify class dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3fOXvBc at no extra charge.[CC] The Plaintiff is represented by: Max S. Morgan, Esq. THE WEITZ FIRM, LLC 1515 Market Street, #1100 Philadelphia, PA 19102 Telephone: (267) 587-6240 E-mail: max.morgan@theweitzfirm.com - and - Aaron Radbil, Esq. Michael Greenwald, Esq. GREENWALD DAVIDSON RADBIL PLLC 5550 Glades Road, Suite 500 Boca Raton, FL 33431 Telephone: (512) 803-1578 E-mail: aradbil@gdrlawfirm.com mgreenwald@gdrlawfirm.com - and - Anthony I. Paronich PARONICH LAW, P.C. 350 Lincoln Street, Suite 2400 Hingham, MA 02043 Telephone: (617) 485-0018 E-mail: anthony@paronichlaw.com TETHER LTD: Roche Freedman Removed From Manipulation Class Suit --------------------------------------------------------------- Jamie Redman at bitcoin.com reports that after a Manhattan federal judge blasted Roche Freedman LLP founding partner Kyle Roche's public statements, the judge has removed the crypto boutique law firm from the market manipulation lawsuit against Tether and Bitfinex. The recent hearing has shown that U.S. district judge, Katherine Polk Failla, believes the litigation process could be derailed. She further stressed that "the metaphorical baggage" Roche Freedman carries "is not in the best interests of the class." Judge Boots Roche Freedman From Class Action Lawsuit Against Tether and Bitfinex At the end of August, the Roche Freedman LLP founding partner Kyle Roche found himself amid a lot of controversies, as a series of videos published by Crypto Leaks saw him discussing specific relationships with certain crypto businesses. On August 31, Roche removed himself from a number of crypto-related class action lawsuits and he further addressed the Crypto Leaks videos. He said that the leaked videos contained "numerous unsourced false statements" that were "illegally obtained." Roche added: [The] highly edited video clips [are] not presented with accurate context. However, following the leaks, Tether's legal representation, Elliot Greenfield of Debevoise & Plimpton LLP, asked the court to remove the law firm Roche Freedman from the class-action lawsuit. Tether's lawyer Elliot Greenfield said that the leaks and Roche's involvement with the class-action lawsuit raises "grave concerns for the defendants regarding the motivations behind the lawsuit." Furthermore, the crypto exchange companies Bittrex and Poloniex sent a request to the judge as well, asking her to remove Kyle Roche's law firm from the court proceedings. Following the requests from Tether, Poloniex, and Bittrex, law360.com reported that the "Manhattan federal judge blasted Roche Freedman LLP founding partner Kyle Roche's 'uniquely stupid' comments." Then, both Bloomberg Law and law360.com published reports that indicate U.S. district judge Katherine Polk Failla has removed Roche Freedman from the lawsuit. Failla explained that Roche's public comments were "too detailed to dismiss out of hand." The law firms Selendy Gay Elsberg and Schneider Wallace will take the reins in the class action lawsuit, after Roche Freedman's official disqualification. Failla said that the law firm could still serve as counsel, but she stressed that "the metaphorical baggage" Roche Freedman carries "is not in the best interests of the class." Bloomberg Law contributor Justin Wise further adds that "Roche Freedman faces disqualification motions in at least four other cases, according to federal court filings." [GN] TRI-COUNTY TELEPHONE: Court Dismisses Fraud Class Action Lawsuit ---------------------------------------------------------------- Caleb Nelson at mybighornbasin.com reports that on October 11th, 2022, the Fifth Judicial District Court, Park County, Wyoming, entered summary judgment in favor of Neil Schlenker, Chris Davidson, Steve Harper, Dalin Winters, Clifford Alexander, J.O. Sutherland, Daniel Greet, John K. Johnson, and Tri-County Telephone Association, together with its affiliated companies, dismissing the class action lawsuit filed against those defendants and pursued by Joe Campbell, Barbara Campbell, and William (Bill) Loveland. In their lawsuit, the Campbells and Loveland make the accusations that TCT was acquired through a grand scheme of fraud, deceit, and collusion. Through their filings with the court and through various statements previously made on the Plaintiffs' behalf to news outlets, without factual support, the Plaintiffs disparaged the character of the former officers and directors of TCT and the parties to the transaction. While noting the repeated arguments of Plaintiffs filled with what was characterized in the order as "vitriolic assertions, beliefs, and opinions regarding the issue of fraud," the Court determined that the Plaintiffs had failed to show any evidence that fraud or other wrongful conduct occurred. The Court's order, which dismisses the class action lawsuit, states, "Plaintiffs have failed to present specific facts demonstrating that a genuine issue of material fact exists as to intentional torts or illegal acts." The Court's order states that the "Plaintiffs must do more than loudly and repeatedly state their allegations and opinions. They must provide some measure of proof, evidentiary facts to support their position and overcome the business judgment rule, which they have failed to do." TCT, together with its parent company, BHT, is "pleased with the court's ruling." Having intimate knowledge of the extraordinary and honest efforts of all involved in the transaction, TCT has vigorously defended this litigation with the expectation of receiving an order dismissing the claims, which were brought by the Plaintiffs without factual support. The court's recent order is seen as a full vindication of the honest and diligent efforts of the former officers and directors to negotiate and present to the cooperative members, for their approval, a transaction in the interests of those members, the company, and our community. TCT looks forward to rediverting resources, which have for many years been spent on unnecessary litigation defending against false accusations, to the core function of providing state-of-the-art telecommunications services to our customers and community.[GN] UNILEVER UNITED: Krause-Pettai Seek to Certify Class Action ----------------------------------------------------------- In the class action lawsuit captioned as NICOLE KRAUSE-PETTAI, KEVIN BOLDEN, ERROL CARREON, CHRISTY STEVENS, individually and on behalf of all others similarly situated, v. UNILEVER UNITED STATES, INC., a corporation; and DOES 1-10, inclusive, Case No. 3:20-cv-01672-LL-BLM (S.D. Cal.), the Plaintiff asks the Court to enter an order: 1. Certifying this case as a class action; 2. Appointing the above-named Plaintiffs as class representatives; 3. Appointing Marlin & Saltzman, LLP as Class Counsel. This class action is brought on behalf of California consumers of top-selling deodorant and antiperspirant products manufactured by Unilever. For more than a half-century, Congress has recognized the inherently deceptive nature of some packaging to consumers. Unilever manufactures personal care products. A copy of the Plaintiffs' motion dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3rBPbr5 at no extra charge.[CC] The Plaintiff is represented by: Stanley D. Saltzman, Esq. Joel M. Gordon, Esq. MARLIN & SALTZMAN, LLP 29800 Agoura Road, Suite 210 Agoura Hills, CA 91301 Telephone: (818) 991-8080 Facsimile: (818) 991-8081 E-mail: ssaltzman@marlinsaltzman.com jgordon@marlinsaltzman.com UNITED HEALTH: Settlement Final Approval Hearing Set Feb. 8, 2023 ----------------------------------------------------------------- You are a person who was potentially impacted by a Data Security Incident in the United States affecting United Health Centers of the San Joaquin Valley's computer network that occurred on or around August 28, 2021. A State Court authorized this notice. This is not a solicitation from a lawyer. Why Did I Get This Notice? A class action Settlement agreement and release ("Settlement Agreement") has been reached in a lawsuit entitled Avetisyan v. United Health Centers of the San Joaquin Valley, No. 22-CEG-285, pending in the California Superior Court, Fresno County. The lawsuit alleges that as the result of a cyberattack by an unauthorized third party to certain computer systems of United Health Centers of the San Joaquin Valley ("UHC"), personal information and protected health information stored by UHC, including names, Social Security Numbers, dates of birth, medical treatment information, health insurance information, and other information may have been compromised on or about August 28, 2021 (the "Data Security Incident"). UHC maintains that it had meritorious defenses, and it was prepared to vigorously defend the lawsuit but encourages all persons who qualify as members of the Settlement Class to participate in the Settlement. Who Is Included? UHC's records indicate you are included in the Settlement as a Settlement Class Member because your information may have been involved in the Data Security Incident. What Are The Settlement Benefits? -- All persons potentially affected by the Data Security Incident, including Settlement Class Members, shall have the option to sign-up for the Settlement Offering and are being provided with three years of free credit monitoring and identity restoration services regardless of whether they otherwise exclude themselves from the Settlement. -- Any Settlement Class Member may submit a Claim for reimbursement for documented Economic Losses related to the Data Security Incident that have not been reimbursed by other third parties, up to an aggregate total of $2,500.00 per Settlement Class Member. Economic Losses shall be deemed fairly traceable to the Data Security Incident if (i) the alleged wrongdoing occurred on August 28, 2021 or thereafter, (ii) the Settlement Class Member executes a statement signed under penalty of perjury indicating that the Economic Losses claimed are fairly traceable to the Data Security Incident, (iii) the alleged wrongdoing involved misuse of the type of personal information impacted by the Data Security Incident (i.e., name, address, Social Security Number, date of birth, medical treatment information, health insurance information, etc.), and (iv) the Settlement Administrator determines by a preponderance of evidence that it is fairly traceable to the Data Security Incident. -- Any Settlement Class Member may submit a Claim for Non-Economic Losses fairly traceable to the Data Security Incident, up to $500.00 per Settlement Class Member. How Do I Receive Settlement Benefits? To enroll in the credit monitoring and identity restoration services, utilize the code and instructions indicated on the correspondence within this package. To receive the other Settlement Benefits, Settlement Class Members must submit a Claim Form to the Settlement Administrator by November 19, 2022. The forms are available at www.UHCofSJVdatabreach.com by calling 1-877-354-3821, or by writing to the Settlement Administrator at Avetisyan v. United Health Centers of the San Joaquin Valley, c/o A.B. Data, Ltd., P.O. Box 173005, Milwaukee, WI 53217. Both forms may be submitted through the Settlement Website or by mail to the Settlement Administrator. What Are My Options? You can do nothing, enroll in the three years of free credit monitoring and identity restoration services, submit a Claim Form or a Reimbursement Form, or exclude yourself from the Settlement. If you do nothing or submit a Claim or Reimbursement Form, your rights will be affected. You will not be able to sue UHC in a future lawsuit about the claims addressed in the Settlement. If you exclude yourself, you will not receive the listed Settlement Benefits (except you may still enroll in the three years of credit monitoring and identity restoration services) -- but you will keep your right to sue UHC in a separate lawsuit on the issues covered by the Settlement. You must contact the Settlement Administrator by mail to exclude yourself. If you do not exclude yourself, you can object to the Settlement, Class Counsel's request for fees and expenses, or the Settlement Class Representative's requests for service awards. All Requests for Exclusion and Objections must be postmarked or filed in person by November 19, 2022. The Final Approval Hearing. The Court will hold a Final Approval Hearing at 3:30 p.m. Pacific Time, on February 8, 2023, at the Fresno County Superior Court, 1100 Van Ness Ave., Fresno, CA 93724. At the Final Approval Hearing, the Court will consider whether the proposed Settlement is fair, reasonable, and adequate. The Court may also consider Settlement Class Counsel's request for attorneys' fees and costs of up to $562,674.78 and a service award of $5,000 to the Settlement Class Representative that filed this lawsuit. If there are objections, the Court will consider them. Getting More Information. More information, including the Settlement Agreement and other related documents, is available at www.UHCofSJVdatabreach.com. Source: Meyer Wilson Co., LPA [GN] UNITED STATES: Civil Rights Lawyer Sues on Behalf of Black Farmers ------------------------------------------------------------------ Stacy M. Brown at washingtoninformer.com reports that renowned civil rights attorney Ben Crump, informally known as "Black America's Attorney General," announced a class-action suit against the U.S. government on behalf of the National Black Farmers Association. The lawsuit comes amid findings that Black farmers lost about $326 billion of land in America because of discrimination during the 20th century. During the announcement of the suit on the National Mall in Washington, Crump and the farmers claimed the federal government breached its contract with socially disadvantaged farmers under the American Rescue Plan Act. Farmers contend that the law included provisions to pay off USDA loans held by 15,000 African Americans, Native Americans, Alaskan Natives, Asian Americans, Pacific Islanders, and Hispanics and Latinos in the farming industry. In August, Congress repealed section 1005 of the American Rescue Plan Act of 2021, which provided funding and authorization for the federal government to pay up to 120% of direct and guaranteed loan outstanding balances as of Jan. 1, 2021, for socially disadvantaged farmers and ranchers, breaking the government's promise and leaving farmers in foreclosure. Black farmers said they relied on the federal government to keep its promise to fund $5 billion to the farmers when it passed the American Rescue Plan Act. "Black and other farmers of color did exactly what the government asked them to do - they maintained or expanded their operations to strengthen America's food supply during the COVID-19 crisis," Crump said. "They believed the U.S. government's promises. They took Congress and the [Biden] administration at their word, expecting that the government would pay off their debt, as the USDA promised in writing. "Instead, it was 40 acres and a mule all over again, 150 years later - broken promises that doomed generations of Black farmers to become sharecroppers and robbed Black families of billions in intergenerational wealth," he said. With Crump at the helm, Black farmers across the country said they're prepared to fight for the money promised. "I'm very disappointed in this legislative action," said John Wesley Boyd Jr., founder and president of the National Black Farmer's Association, a nonprofit representing African American farmers and their families. "I'm prepared to fight for debt relief for Black, Native American, and other farmers of color all the way to the Supreme Court. I'm not going to stop fighting this." A 2019 report highlighted how many federal agencies have systemically discriminated against Black farmers, including the USDA. "If you are Black and you're born south of the Mason-Dixon Line, and you tried to farm, you've been discriminated against," Lloyd Wright, director of the USDA Office of Civil Rights under Bill Clinton and Barack Obama, and a Black Virginia farmer, said in the report. The report noted that the debts Black farmers consequently accrued "cost them millions of acres, which white buyers then snapped up." In 1920, Black farmers peaked at nearly 1 million, constituting 14% of all farmers. But between 1910 and 1997, they lost 90% of their property. By contrast, white farmers lost only 2% in the same period. As of 2017, there were just 35,470 Black-owned farms, representing 1.7% of all farms. Black farmers lost some 16 million acres, Conservatively estimated to be worth between $250 billion and $350 billion in current dollars. Lawrence Lucas, president emeritus of the USDA Coalition of Minority Employees and representative of the Justice for Black Farmers Group, said USDA Secretary Thomas Vilsack had done nothing to help Black farmers. "The amount of wealth loss could be in the trillions of dollars," Lucas said. "We've had administration after administration, president after president, and Congress after Congress does nothing. Secretary Vilsack was a disaster even when he worked under President Obama, who wasn't good to us." In a letter to the agriculture secretary, Lucas expressed his disappointment. "We have watched with disbelief and discouragement as a sequence of events played out in a self-fulfilling prophesy: a Vilsack agriculture transition team member declared that what we wanted, debt relief for Black farmers, was unconstitutional," Lucas wrote. "We contend that there was an unnecessary length of time spent on Senator Warnock's two bills, voted into the American Rescue Plan Act of 2021, and the decision by a Florida judge to issue a temporary restraining order against you, which stopped relief for Black farmers." "We contend that you slow-walked the processing of these claims with a process that went beyond 100 days," Lucas continued. "With the stroke of your pen, we are fully aware that you could have removed the debt these farmers have suffered because of USDA's long history of discrimination, not a process but debt relief. "Instead, we have white privilege that continues to be a part of the USDA landscape at the pain and suffering of Black farmers and others. "[Former President Donald] Trump paid out $16 billion in allotments to white farmers quickly, and Black farmers received only a small fraction of those funds," he wrote. "Why for them and not us?"[GN] UNITED STATES: Defends Record Amid Lawsuit From Black Farmers ------------------------------------------------------------- April Ryan at thegrio.com reports that the White House on touted its efforts to provide relief for Black American farmers on the same day that the federal government was hit with a class action lawsuit by said farmers, who say the government broke its promise to keep their farms afloat throughout and after the COVID-19 pandemic. The Biden administration reacted to the lawsuit with a statement from the United States Department of Agriculture (USDA) that does not explicitly mention the lawsuit that was announced and filed in the United States Court of Federal Claims on Oct. 7. However, the government sought to clarify its position after lawsuits filed by white farmers, who claimed they were discriminated against, led to court injunctions that froze the $5 billion intended to relieve Black and minority farmers. The funding was earmarked in the American Rescue Plan, which was signed into law by President Joe Biden in March 2021. It quickly drew outrage from Republicans like Sen. Lindsey Graham, R-S.C., who called the policy "reparations," while others claimed it was reverse discrimination. A group of Black farmers, represented by famed civil rights attorney Ben Crump, says the U.S. government breached its "contractual rights" when it repealed the provision in ARP that would've provided the federal funding for "socially disadvantaged" farmers, particularly Black farmers who had been historically discriminated against by USDA. Crump compared the "breached contract" to the 40 acres and a mule that was promised to enslaved African Americans during the American Civil War - a pledge of land that never came to fruition. The civil rights attorney is calling for the exact amount of funding ($5 billion) initially included in ARP to be awarded to the plaintiffs. He told theGrio the objective of the lawsuit is to "make the federal government live up to the promise that the Black farmers and the brown farmers relied on when they passed the American Rescue Plan." "The powers that be, for whatever reason, started to scream reverse discrimination. And then the government broke their promise," said Crump. "They did not stand up and fight for the Black farmers to get equal justice and equal opportunity after it was clear that so many times Black farmers and brown farmers, Asian farmers and native farmers have been discriminated against." Crump also noted that Black and minority farmers relied on the promise of debt relief by the federal government, so much so that they invested in new equipment and land. The plaintiffs say they are now in jeopardy of losing their farms and livelihood. Leon W. Russell, chair of the National Board of Directors at NAACP, told theGrio that Crump's lawsuit on behalf of Black and brown farmers is an "excellent strategy," noting that Black farmers have been promised relief for decades. "Promises have not been kept," he said. While the administration says it is adamant about fighting for Black farmers, it defended its decision to repeal the ARP provision. In a statement, USDA said had they not, the legal battle "would likely have not been resolved for years." The Biden-Harris administration noted that in the Inflation Reduction Act, Democratic senators provided $3.1 billion for "distressed borrowers" and an additional $2.2 billion to provide financial assistance for farmers who "have suffered discrimination by USDA farm loan programs." However, the bill's language no longer mentioned race as a specific criterion. In a previous statement at the time of the IRA's passage on Capitol Hill, Sen. Cory Booker, D-N.J., who co-sponsored the new provisions, said "those farmers, particularly Black farmers, who have suffered USDA discrimination, this legislation sets in motion a process to right those wrongs." In the early 20th century, there were many Black farmers in the United States. In a previous interview with theGrio, Black farmers advocate and former USDA state director, Shirley Sherrod, estimated that there were "almost a million Black farmers somewhere around 1910 or so," who she said, "owned about 15 million acres of farmland." Today, the number of Black farmers is said to be dismal, as many of them had to shut down their businesses due to a lack of capital. Additionally, many were denied loans from the Department of Agriculture because of alleged discrimination. A settlement was eventually reached during the Obama administration to the tune of $1.25 billion. [GN] UNITED STATES: XRP Holders Join Class Action Suit Over Huge Losses ------------------------------------------------------------------ Lele Jima at thecryptobasic.com reports that the number of Ripple (XRP) holders represented by attorney John Deaton in a class action against the Securities and Exchange Commission has continued to increase. Over 75,000 XRP holders have joined Deaton's class action against the SEC. A few weeks after, attorney Deaton disclosed that the number of XRP holders in the suit had surpassed 71,000. As the lawsuit between the SEC and Ripple enters the summary judgment phases, more XRP holders see the need to join Deaton's class action. The class action is due to the huge losses XRP investors suffered following a lawsuit filed by the SEC against Ripple. The Securities and Exchange Commission claims that XRP is a security, adding that Ripple breached U.S. securities laws by conducting an unregistered offering for the cryptocurrency in 2013. After the SEC filed the lawsuit, several United States-based crypto exchanges like Coinbase were prompted to discontinue support for XRP. These cryptocurrency exchanges fear that the SEC could probe them for facilitating the trading of XRP, which it claims to be a security. Following the de-listing of XRP from various U.S.-based exchanges, the value of XRP crashed tremendously, plunging many investors into huge losses. Ripple General Counsel Stuart Alderoty described the SEC lawsuit against the SEC as a rug pull on XRP investors. Attorney Deaton's Push for Justice Meanwhile, attorney Deaton is determined to get justice for XRP victims of the SEC lawsuit, and the process has continued to gain momentum. In a recent tweet, the Crypto Law founder called on the XRP community to provide info about Ripple, Bitcoin, and Ethereum's market capitalization as of January 3, 2018. "I need help with something. How can I determine how much of the total market cap Bitcoin, ETH, and XRP made up in January 2018?. . . " Deaton requested. The official Crypto Law Twitter account also echoed Attorney Deaton's request, asking community members to engage with Deaton for the required information as he continues to work on behalf of 75K XRP holders. [GN] VALLEY BROOK, OK: Class Cert Bid Filing Due April 2, 2023 --------------------------------------------------------- In the class action lawsuit captioned as KIMIESHA HILL, et al., on behalf of themselves and all others similarly situated, v. TOWN OF VALLEY BROOK, et al., Case No. 5:21-cv-00097-SLP (W.D. Okla.), the Hon. Judge Scott L. Palk entered an order that the Plaintiffs shall file a motion for class certification on or before March 2, 2023. Any response(s) to that motion shall be filed on or before April 17, 2023. The filing of any reply in support of the class certification motion shall be governed by the Local Civil Rules of this Court. Further deadlines may be established in a Phase II Specialized Scheduling Order after the Court's ruling on the motion for class certification. Valley Brook is a town in Oklahoma County, Oklahoma, United States and is part of the Oklahoma City Metropolitan Area. A copy of the Court's order dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3elSIac at no extra charge.[CC] VENETIAN CASINO: Suit Seeks to Certify Rule 23 Class & Subclass --------------------------------------------------------------- In the class action lawsuit captioned as MUSTAFA YOUSIF and SHARONE WALKER on behalf of themselves and all others similarly situated, v. The Venetian Casino Resort, LLC, et al., Case No. 2:16-cv-02941-RFB-NJK (D. Nev.), the Plaintiff asks the Court to enter an order: 1. granting certification of the following class and subclass of persons pursuant to Rule 23 of the Federal Rules of Civil Procedure: -- Nevada Class "All current and former non-exempt hourly paid employees employed as housekeepers by Defendant The Venetian Casino Resort, LLC, at any time from October 27, 2014, to the present;" -- Wages Due and Owing Subclass "All members of the Nevada Class who, at any time during the Class Period, were terminated or otherwise separated from employment." 2. appointing them as Class Representatives of the Class and Subclass; 3. appointing Joshua D. Buck, Mark R. Thierman, Leah L. Jones, and Joshua R. Hendrickson, of Thierman Buck LLP as Counsel for the Class and Subclass; 4. approving the proposed notice to the Class and Subclass; and 5. directing the Class Notice be sent to all Class and Subclass members as soon as practicable. Venetian Casino owns and operates casinos to provide recreational services. A copy of the Plaintiff's motion to certify class dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3ysaq2r at no extra charge.[CC] The Plaintiffs are represented by: Mark R. Thierman, Esq. Joshua D. Buck, Esq. Leah L. Jones, Esq. Joshua R. Hendrickson, Esq. THIERMAN BUCK LLP 7287 Lakeside Drive Reno, NE 89511 Telephone: (775) 284-1500 Facsimile: (775) 703-5027 E-mail: mark@thiermanbuck.com josh@thiermanbuck.com leah@thiermanbuck.com joshh@thiermanbuck.com WALGREEN CO: CMP & Scheduling Order Entered in Stevens Suit ----------------------------------------------------------- In the class action lawsuit captioned as Delenator Stevens v. Walgreen, Co., Case No. 1:21-cv-10603-JPO (S.D.N.Y.), the Hon. Judge Paul Oetken entered a civil case management plan and scheduling order as follows: -- All fact discovery shall be May 24, 2023 completed no later than: -- Initial requests for production Oct. 14, 2022 of documents shall be served by: -- All expert discovery, including Sept. 29, 2023 expert depositions, shall be completed no later: A copy of the Court's order dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3MgIN2b at no extra charge.[CC] WALMART INC: Merck Loses Bid to Seal Settlement Deal Docs --------------------------------------------------------- In the class action lawsuit captioned as Merck v. Walmart Inc., Case No. 2:20-cv-02908-SDM-EPD (S.D. Ohio), the Hon. Judge Elizabeth A. Preston Deavers entered an order denying Walmart's motion to seal. However, given the alleged nature of certain information, this denial is without prejudice to Walmart's ability to re-file a properly supported motion, the Court says. The Court further entered an order that: -- The Plaintiff's motion to seal is granted, in part. The Plaintiff's motion as it relates to references and quotations in the briefing that are the subject of Walmart's motion to seal is denied, in part, without prejudice to refiling. -- Plaintiff's motion to seal as it relates to the Settlement Agreement is denied. -- Walmart's motion to seal is denied without prejudice. Any renewed motions to seal should be filed within 14 days of the date of this Order. If renewed motions to seal are not filed, on the 15th day unredacted versions of the documents currently remaining at issue shall be filed on the public docket. A copy of the Court's order dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3efRn4y at no extra charge.[CC] WELLS FARGO: Handelsbanken, et al., Seek to Certify Class Action ---------------------------------------------------------------- In the class action lawsuit captioned as IN RE WELLS FARGO & COMPANY SECURITIES LITIGATION, Case No. 1:20-cv-04494-GHW (S.D.N.Y.), the Lead Plaintiffs Handelsbanken Fonder AB, the Public Employees' Retirement System of Mississippi, State of Rhode Island, Office of the General Treasurer, on behalf of the Employees' Retirement System of Rhode Island, and the Louisiana Sheriffs' Pension & Relief Fund move the Court for an Order: 1. certifying case as a class action pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure; 2. certifying them as Class Representatives; and 3. appointing Cohen Milstein Sellers & Toll PLLC and Bernstein Litowitz Berger & Grossmann LLP as Class Counsel. Wells Fargo is an American multinational financial services company with corporate headquarters in San Francisco, California; operational headquarters in Manhattan; and managerial offices throughout the United States and internationally. Handelsbanken is a mutual fund management company that manages approximately 100 funds. A copy of the Lead Plaintiff's motion dated Oct. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3EKt61B at no extra charge.[CC] The Counsel for Lead Plaintiffs Public Employees;' Retirement System of Mississippi, State of Rhode Island, Office of the General Treasurer, on behalf of the Employees' Retirement System of Rhode Island, and Lead Counsel for the Class, are: Steven J. Toll, Esq. S. Douglas Bunch, Esq. Molly J. Bowen, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, N.W., Suite 500 Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: stoll@cohenmilstein.com dbunch@cohenmilstein.com mbowen@cohenmilstein.com - and - Laura H. Posner, Esq. 88 Pine Street, Fourteenth Floor New York, NY 10005 Telephone: (212) 220-2925 Facsimile: (212) 838-7745 E-mail: lposner@cohenmilstein.com The Counsel for Lead Plaintiffs Handelsbanken Fonder AB and Louisiana Sheriffs’ Pension & Relief Fund, and Lead Counsel for the Class, are: John C. Browne, Esq. Jeroen van Kwawegen, Esq. Michael D. Blatchley, Esq. Benjamin W. Horowitz, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 554-1400 Facsimile: (212) 554-1444 E-mail: johnb@blbglaw.com jeroen@blbglaw.com michaelb@blbglaw.com will.horowitz@blbglaw.com - and - Jonathan D. Uslaner, Esq. Lauren M. Cruz, Esq. 2121 Avenue of the Stars Los Angeles, CA 90067 Telephone: (310) 819-3470 E-mail: jonathanu@blbglaw.com lauren.cruz@blbglaw.com The Additional Counsel for Louisiana Sheriffs' Pension & Relief Fund, are: Robert D. Klausner, Esq. KLAUSNER, KAUFMAN, JENSEN & LEVINSON 7080 NW 4th Street Plantation, FL 33317 Telephone: (954) 916-1202 Facsimile: (954) 916-1232 E-mail: bob@robertdklausner.com WILLIAMS-SONOMA INC: Rushing Suit Seeks Class Certification ----------------------------------------------------------- In the class action lawsuit captioned as WILLIAM RUSHING and ELIZABETH PERLIN, individually and on behalf of all others similarly situated, v. WILLIAMS-SONOMA, INC., et al., Case No. 3:16-cv-01421-WHO (N.D. Cal.), the Plaintiff asks the Court to enter an order: 1. certifying a nationwide injunctive relief Class under Rule 23(b)(2) for all causes of action seeking injunctive relief in Plaintiff's Eighth Amended Complaint defined as: "All persons 1 in the United States who from January 19, 2007, to the present who purchased 2 bedding, including sheets, sheet sets, pillowcases, duvet covers, and/or shams, directly from Williams-Sonoma, Inc. 3 from any of the following seven lines of bedding: 1) Williams-Sonoma Home Signature 600-Thread-Count Sateen Bedding (n/k/a Chambers 600TC Sateen Bedding) 2) Williams-Sonoma Home Greek Key Jacquard 600-Thread- Count Bedding 3) Williams-Sonoma Home Suzani Jacquard Bedding (500 TC) 4) Pottery Barn Foundations Hotel Sateen Bedding (600 TC) 5) Pottery Barn Morgan 400-Thread-Count Bedding 6) Pottery Barn PB Organic 400-Thread-Count Bedding 7) Pottery Barn PB Classic 400-Thread-Count Bedding; and 2. certifying a California Subclass under Rule 23(b)(3) for all causes of action in the Complaint seeking monetary relief defined as: "All persons in California who from January 19, 2007, to the present who purchased bedding, including sheets, sheet sets, pillowcases, duvet covers, and/or shams, directly from Williams-Sonoma, Inc. from any of the following seven lines of bedding: . 1) Williams-Sonoma Home Signature 600-Thread-Count Sateen Bedding (n/k/a Chambers 600TC Sateen Bedding) 2) Williams-Sonoma Home Greek Key Jacquard 600-Thread- Count Bedding 3) Williams-Sonoma Home Suzani Jacquard Bedding (500 TC) 4) Pottery Barn Foundations Hotel Sateen Bedding (600 TC) 5) Pottery Barn Morgan 400-Thread-Count Bedding 6) Pottery Barn PB Organic 400-Thread-Count Bedding 7) Pottery Barn PB Classic 400-Thread-Count Bedding The Injunctive Relief Class seeks injunctive relief under the Unfair Competition Law (UCL); False Advertising Law (FAL), Business and Professions Code; and Consumer Legal Remedies Act (CLRA). The California Subclass seeks monetary relief, and all other available relief, under the UCL, FAL, CLRA, and common law unjust enrichment. The Plaintiff further requests that the Court appoint: (1) Plaintiff Perlin as class representative forall claims, and (2) Hagens Berman Sobol Shapiro LLP and Haeggquist & Eck, LLP as class counsel. A copy of the Plaintiff's motion to certify class dated Sept. 28, 2022 is available from PacerMonitor.com at https://bit.ly/3EiWMT6 at no extra charge.[CC] The Plaintiffs are represented by: Amber L. Eck, Esq. HAEGGQUIST & ECK, LLP 225 Broadway, Suite 2050 San Diego, CA 92101 Telephone: (619) 342-8000 E-mail: ambere@haelaw.com - and - Robert B. Carey, Esq. Leonard W. Aragon, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 11 West Jefferson Street, Suite 1000 Phoenix, AZ 85003 Telephone: (602) 840-5900 E-mail: rob@hbsslaw.com leonard@hbsslaw.com WILLOWS INN: Agrees to Settle Wage Theft Class Suit for $1.37-M --------------------------------------------------------------- Jackie Varriano at Seattle Times reports that The Willows Inn, a nationally acclaimed restaurant on Lummi Island, has agreed to pay more than $1.37 million to settle a class-action lawsuit over accusations of wage theft involving 137 employees. This settlement comes a year after the restaurant, owned by two-time James Beard award-winning chef Blaine Wetzel and his business partner Tim McEvoy, paid $600,000 to settle a similar wage theft lawsuit, in which employees claimed they weren't provided adequate rest breaks and were not paid for all hours worked. Filed in Whatcom County Superior Court on March 10, the most recent suit is considered an amendment to the earlier class-action lawsuit, filed in July 2017. The earlier suit was settled last year and encompassed nonsupervisory employees who had worked at the restaurant from July 2014 to December 2017. However, when checks began going out to the claimants, the attorney for the plaintiffs, Greg Wolk, said he started hearing from multiple employees who had worked at the Willows Inn from June 2018 to February 2022 and who alleged that they, too, had not been paid for all hours worked, had not been granted adequate meal and rest breaks and were not paid automatic service charges that were due to them. Wetzel and his attorney did not respond to repeated requests for comment. The Willows Inn is the latest in a string of Washington or Seattle-area restaurants that have settled significant wage theft cases since Seattle made it illegal in 2011. The list includes Tom Douglas Restaurants, the Queen Anne location of the national chain Melting Pot, Pagliacci Pizza and Lowell's in Pike Place Market. Wage theft has long been a problem in the restaurant industry - in 2018, the U.S. Department of Labor found that 84% of more than 9,000 restaurants investigated had violated wage laws. In an interview, Julia Olmos, a cook at Willows Inn from June 2018 to December 2019, said she was often expected to work outside of paid hours. She said she was frequently asked to run errands for the restaurant before her shift and was not paid for the time it took to complete those tasks, nor reimbursed for the money she spent to purchase the items she was asked to obtain. Olmos, who now works in the food industry in New York City, says that since she left The Willows Inn she has never again been asked to work off the clock. At the time however, it didn't feel wrong to forage or grab ingredients from the grocery store before clocking in. Instead, that was the accepted culture of the restaurant where the kitchen staff "went into it being like, 'foraging is a part of our job,' " she said. But in hindsight, "It definitely was not cool for being out for 18 hours to forage ingredients for the restaurant that they could've paid foragers to get for them," Olmos said. The Willows Inn has come under fire for a number of issues in recent years, and has been accused of wage theft in several instances. The posh 30-seat restaurant and adjoining hotel has cultivated a strong reputation under Wetzel and the restaurant has been highly regarded internationally for its unique menu that, Wetzel has claimed, relied exclusively on ingredients found or grown on the island. However, in April 2021, The New York Times reported that many of the ingredients that the Willows Inn had advertised as locally sourced often came from global distributors and grocery store chains. The story also accused Wetzel and his management staff of an array of toxic workplace behaviors, including racism and sexual harassment. (According to The New York Times, Wetzel denied most of the allegations, though he admitted to sourcing some ingredients off-island.) In 2017, the U.S. Department of Labor fined The Willows Inn $149,624 for illegally requiring some entry-level kitchen staffers to work a one-month trial period for free, and then afterward, for wages as low as $50 per day. The Willows Inn said at the time that they had operated a staging/internship program - in which entry-level kitchen workers work for free in hope of a resume boost - but that once the Justice Department informed them that the practice was illegal, they ended the program. The wage theft lawsuit filed by Wolk that resulted in the $600,000 settlement in 2021 included several employees who were affected by the Department of Labor case. Under that settlement, 99 nonsupervisory employees recovered about 75% of unpaid wage claims. Wetzel denied those allegations in a phone interview with The Seattle Times in March 2021, saying his attorneys advised him to settle or risk a long, expensive court battle. Wolk said he determined the class date range in that initial lawsuit after The Willows Inn's attorneys told him that the restaurant had ended its controversial stage program and was making sure employees were clocking in and out for all work. But more employees who'd worked at The Willows Inn after the December 2017 end date started coming to him to say they, too, had not been adequately paid for labor. The Willows Inn also currently faces three civil cases in state and federal courts. All three were brought against the restaurant by former employees. This $1,375,000 settlement was finalized on July 8. According to Wolk, The Willows Inn chose not to appeal the settlement and checks were distributed to the 137 members of the claimant class in September. Under the settlement, the class will recover about 75% of unpaid wage claims. "[The Willows Inn] has the capacity to do great things, the food is fantastic. If they would just treat their employees fairly, none of this would be happening," Wolk said.[GN] [*] 1st Annual Complex Litigation Ethics Conference This Saturday ----------------------------------------------------------------- The Center For Litigation and Courts, UC Hastings Law, and Huntington National Bank invite you to the first annual Complex Litigation Ethics Conference. This program will bring together luminaries in the field -- judges, scholars, lawyers, and others -- to discuss a cutting-edge topic that is of critical importance to our justice system. The event will be held on campus and virtually on Saturday, October 22, 2022, from 8:45 a.m. to 4:45 p.m. Pacific Time at UC Hastings College of the Law in San Francisco. 7.0 Ethics CLE Credits are available. Expert panelists will discuss important industry topics including: * Adapting Ethics to Complex Litigation * Ethics in Funding Complex Litigation * Diversity, Equity, and Inclusivity in Complex Litigation * Communications with Absent Class Members The program will also include a special presentation of an inaugural Annual Award for Excellence in Ethics in Complex Litigation. The honoree will be recognized for accomplishments in promoting ethics in class actions, MDLs, or other complex litigation. Capacity is limited, so please register today at https://bit.ly/3rpycs7 View the agenda at https://bit.ly/3Cv2tMv [*] Housing Rights Initiative Generates Three Fraud Class Suits --------------------------------------------------------------- Isabel Song Beer at amny.com reports that following an investigation by national housing watchdog group the Housing Rights Initiative (HRI), three class action lawsuits have been filed against New York City real estate companies for allegedly defrauding tenants by abusing the 412-a tax incentive program. The 421-a program is a partial tax exemption that lowers property taxes and is granted to property developers who construct units that include affordable housing. Atlas Capital Group, Heatherwood and Artimus Construction - the real estate companies being sued - were apparently receiving tens of millions of dollars worth of 421-a benefits for developing their buildings. Conditionally under 421-a, 100% of the units developed were required to be rent stabilized. However, the landlords allegedly cheated NYC rent stabilization laws by maximizing rent increases as well as falsely registering rental rates of apartments at inflated and illegal prices. "The 421-a program costs taxpayers $1.7 billion a year, which is larger than the entire budget of the City of Denver," said Aaron Carr, founder and executive director of Housing Rights Initiative in a statement on Oct. 12. "The fact that the New York State government continues to defer its tax enforcement obligations to an organization that has a fraction of a fraction of a fraction of their budget is not just an unmitigated tragedy, it is a full blown scandal." According to HRI, thousands of current and former tenants at 54 Noll Street, Brooklyn, NY, 27-03 42nd Road Long Island City, NY, and 260 West 26th Street New York, NY - the buildings affected by the lawsuits - may be entitled to tens of millions of dollars in damages. Legally, tenants being overcharged on rent are entitled to properly stabilized leases, rent refunds and rent reduction. [GN] [*] N.D. Illinois Enters $228M Judgment in BIPA Class Action ------------------------------------------------------------ buckleyfirm.com reports that on October 12, the U.S. District Court for the Northern District of Illinois entered a judgment for $228 million after a jury found that a defendant railway company committed 45,600 reckless or intentional violations of the Illinois Biometric Information Privacy Act (BIPA). The jury's judgment, which does not include pre-judgment interest, was entered against the defendant in the amount of $228 million (BIPA provides for statutory damages of $5,000 for every willful or reckless violation and $1,000 for every negligent violation). Class members consisting of more than 44,000 truck drivers alleged in their second amended complaint that the defendant violated BIPA when it collected, captured, and stored their biometric identifiers and biometric information without obtaining their informed written consent or providing written disclosures explaining the purpose and duration of such use. The defendant countered that it should not be held liable for biometric data collection conducted on its behalf by a third-party contractor because BIPA does not impose liability for the acts of a third party. The court disagreed, ruling, among other things, that BIPA's language "makes clear that [the defendant] need not have 'collected' the data itself to be liable," and that there is evidence that the defendant "ultimately called the shots on whether and how biometric information is collected."[GN] [*] New Wiretapping Class Actions Target U.S. Technology Companies ------------------------------------------------------------------ Duane Morris disclosed that a new wave of class action lawsuits filed in California, Pennsylvania and Florida target companies that use technologies to track user activity on their websites, alleging such practices, when done without obtaining a user's consent, violate electronic interception provisions of various state laws. The two technologies at issue are: 1) session replay software and 2) coding tools embedded in chat features. Session replay software tracks a user's interactions with the website -- their clicking, scrolling, swiping, hovering and typing -- and creates a stylized recording of those interactions and inputs. Coding tools create and store transcripts of the conversations users have in a website's chat feature. The plaintiffs in this new string of class actions allege that recording their interactions with a website and sending that recording to a third party for analysis without their consent is an illegal invasion of their privacy. State Wiretapping Statutes Plaintiffs ground their claims in the electronic interception provisions of state laws—for example, the California Invasion of Privacy Act, the Pennsylvania Wiretapping and Electronic Surveillance Act and the Florida Security of Communications Act. Generally, these wiretap statutes prohibit the unauthorized interception or disclosure of communications transmitted electronically. At least 15 states require mutual consent to any recording, meaning the interception is "unauthorized" if the intercepting party has not obtained the consent of all parties to the communication.[1] It is in these two-party consent states that the plaintiffs behind this new litigation trend allege that a company's recording or storing their interactions with a website (e.g., their clicks, scrolls and chat inputs) and sending those recordings to a third party for analysis without their prior consent is illegal. Recent Decisions from the Ninth and Third Circuits Recent decisions from the Ninth and Third Circuits are fueling the swell of lawsuits alleging violations of state wiretap statutes. In May, the Ninth Circuit held in Javier v. Assurance IQ, LLC that the California Invasion of Privacy Act requires prior consent, and explicitly rejected the argument that this wiretap statute allows a business to obtain consent to the use of session replay software after the recording has already begun. However, the Ninth Circuit did not comment on what would amount to effective consent to the websites' use of session reply software under the wiretap statute. A few months later, the Third Circuit in Popa v. Harriet Carter Gifts ruled that an electronic interception violating the Pennsylvania Wiretapping and Electronic Surveillance Act occurred when the plaintiff visited a website to purchase a pet product and her interactions on that site were recorded and transmitted to a third-party marketing firm. The Third Circuit further concluded that the location of the interception was the plaintiff's browser, rejecting the defendants' argument that the wiretap statute did not apply because the third-party marketing firm's servers -- where the information was sent -- were located in Virginia. Thus, if other circuits follow the Third Circuit's approach, companies could be subject to liability under a state wiretap statute each time a user accesses their website from that state. The Risks Posed by the Lawsuits This new wave of suits alleging wiretap violations threatens to subject businesses to a substantial amount in penalties. Fines range from $1,000 to $50,000 per violation, depending on the state. Since a violation arguably occurs every time a user accesses a website in one of these states, the amount of penalties to which a company may be subject can balloon quickly. For example, in each of the three lawsuits brought thus far in Pennsylvania, the class consisted of allegedly more than 5,000 plaintiffs. What Safeguards Businesses Can Employ Companies can employ several proactive measures to protect them from exposure to a class action lawsuit or potentially incurring fines under state wiretap statutes. -- First, because user consent is a defense under state wiretap statutes, companies should review their websites' terms of use and privacy policies and consider whether they provide substantive disclosures of how a user's interactions with the website is recorded and shared with service providers. -- Companies should ensure that the disclosure of those terms is conspicuous enough to make users' consent to them enforceable. Given that there is not yet a clear standard as to what constitutes enforceable consent to the use of these technologies, obtaining affirmative consent from website users before starting any recordings or chat transcriptions may be the strongest safeguard against lawsuits alleging violations of state wiretap statutes. -- Additionally, companies can negotiate for indemnification rights when selecting a provider of the software that tracks users' website interactions. Second, companies should seek counsel to consider what defenses exist under the relevant statutes. The case law in this area is still developing, and each state wiretapping statute provides a set of defenses, from showing that a user expressly or impliedly consented to the use of the technology, to establishing that the party accused of intercepting or disclosing an electronic communication was a direct party to the communication. About Duane Morris Duane Morris attorneys assist clients both in implementing safeguards that will prevent them from facing a lawsuit alleging a wiretapping violation and in defending any wiretapping lawsuit brought against them. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2022. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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