/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/221019.mbx C L A S S A C T I O N R E P O R T E R Wednesday, October 19, 2022, Vol. 24, No. 203 Headlines A.O.L. LLC: Lancaster Sues Over Recover Unpaid Overtime Wages ACADEMIC SOLUTIONS: Lawrence Files FDCPA Suit in W.D. New York ADRIAN COLLEGE: Senior Files ADA Suit in S.D. New York ALIGN TECHNOLOGY: Snow Suit Transferred to N.D. California ANAGABAND 8430: Ordenana Sues Over Unpaid Regular, Overtime Wages ANTERO RESOURCES: Loses Bid to Bifurcate Claim & Stay McArdle Suit BATH AND BODY: Licea Sues Over Unlawful Secret Wiretapping BELMONT UNIVERSITY: Senior Files ADA Suit in S.D. New York BEST WESTERN: Fails to Pay Proper Wages, Mrkus Suit Alleges BETHUNE-COOKMAN UNIVERSITY: Senior Files ADA Suit in S.D. New York BITNILE HOLDINGS: J P Crown Sues Over Undisclosed Information BOASSO AMERICA: Polanco Seeks Final Approval of Class Settlement BOEING CO: $6.25MM Class Settlement to be Heard on Dec. 14 BOWMAR NUTRITION: Bass, et al., Seek Sched Order & Discovery Plan CALVERT'S EXPRESS: Manager Class Gets Conditional Certification CAPITAL ASSET: Esquivel Files FDCPA Suit in S.D. Florida CAPITOL SECURITY: Cadero Sues Over Unpaid Overtime Wages CARVANA LLC: Loses Arbitration and Dismissal Bid in Jennings Suit CELLULAR SALES: Court Grants Final Approval of Class Settlement CHR CORPORATION: Seeks Leave to File Sur-Reply to Class Cert Bid CIRCA 1886: Must Respond to Conditional Class Cert Bid by Oct. 26 CV SCIENCES: Court Sets Nov. 14 Settlement Fairness Hearing DAVID RANDALL: Court Grants Bid to Certify Class in Nationwide Suit DEL TORO: Court Modifies Class Cert. Bid Deadlines in Beasley DOLLAR BANK: Court Narrows Claims in Columbian Spot Class Suit DONALD J TRUMP FOR PRESIDENT: Denson Files Class Certification Bid EMPRESS AMBULANCE: Fails to Protect Data Breach, Normand Alleges EQUIFAX INC: Claims Administrator Provides Update on Settlement ETHOS-CALIFORNIA VETERINARY: Lopez Files Suit in Cal. Super. Ct. FINCH COMPANY: Taylor Files TCPA Suit in N.D. Ohio FITNESS EQUIPMENT: $3.65MM Class Deal in Bechtel Suit Wins Final OK FORD MOTOR COMPANY: Scott Files Suit in N.D. Illinois GENERAL MOTORS: Chevy Bolt Battery Class Action to Proceed GENERAL MOTORS: White Seeks to Certify Class of Purchasers GOOGLE LLC: Court Dismisses Taylor Complaint Without Leave to Amend GOSPEL LIGHT: Beers' Bid to Dismiss Glasgow Suit Granted in Part GREG LINDBERG: Seeks Stay of Jordan Bid to Certify Class GREYHOUND LINES: Bazabal Sues Over Failure to Pay Minimum Wages HENDRICK ROOFING: Avila Sues Over Unpaid Regular, Overtime Wages HIGHGATE HOTELS: Balderrama Sues to Recover Unpaid Wages HIREAPP TECH: Fails to Pay OT Wages Under FLSA, Sanchez Alleges HOOVESTOL INC: Customer Service Employees Win Class Status Bid HOUSTON BAPTIST: Senior Files ADA Suit in S.D. New York HUDSON VALLEY: 2nd Circuit Ruling in Overdraft Fees' Suit Discussed IG MARKETS: Faces Class Action Suit Over Marketing of CFDs INTERSECTIONS INC: Hearing of $9M Deal in Merger Suit Set Jan. 19 INVESTMENTS 41 LLC: Fails to Pay Proper Wages, Popova Alleges JOLO INC: Saad, et al., Win Partial Summary Judgment Bid KAV HEALTH: Prelim Pretrial Conference Order Entered in McLemore LAUNDRY FLAGLER: Garcia Sues Over Unpaid Regular, Overtime Wages LINKEDIN CORP: Seeks Dismissal of Subscription Renewal Class Action LUNDQUIST CONSULTING: Wins Judgment on Pleadings Bid in Petro Suit MATERIAL GOOD: Hwang Files ADA Suit in E.D. New York MEAT SHOP: Sued Over E. Coli Outbreak From Pork Contamination MEGA HOME: Fails to Pay Proper Wages, Jones Suit Alleges MERDEL GAME: Toro Files ADA Suit in S.D. New York MHM HEALTH: Court Enters Case Management Order in Lewis Suit MICHAEL STORES: Powell Sues Over Unsolicited Text Messages Calls MIDNIGHT EXPRESS: Petrea Seeks Conditional Cert. of Collective MIKIMOTO (AMERICA) CO: Hwang Files ADA Suit in E.D. New York MORNING FINANCIAL: Faces Ulery Class Suit Over Unwanted Robocalls MOUSEFLOW INC: Court Grants First Bid to Dismiss Sacco Class Suit NATIONSTAR MORTGAGE: Extension of Class Cert. Bid Seal Sought NESTLE USA: Court Dismisses Angeles' First Amended Class Complaint NEW YORK: Court Denies Bid to Certify Class in Bellin v. Zucker NISSAN NORTH: Court Narrows Claims in Class Suit Over Defective FEB OLIN CORP: Evidentiary Hearing on Class Certification Sought ONPOINT COMMUNITY: Parties Must File Case Mng't Plan by Oct. 18 OPTIMUM POINT: Gordillo Sues to Recover Unpaid Overtime Wages PATTERN ENERGY: Hearing on Pending Class Cert Bid Set for Dec. 13 POWER PARAGON: Burns Class Cert Hearing Continued to Feb. 6, 2023 QUEST DIAGNOSTICS: Court Certifies Class of Patient Service Reps RITE AID: Faces Prescott Suit Over Deceptive Lidocaine Patches SEALED AIR: $12.5MM Settlement to be Heard on Jan. 20, 2023 SELECT PORTFOLIO: Mendes Suit Removed to D. Massachusetts SESEN BIO: Nov. 8 Final Settlement Approval Hearing Set SHOE SHOW: Parties Seek Initial Approval of Settlement Class SIGNATURE LANDSCAPE: Response in Support of Class Cert Bid Extended SIGNIFY HEALTH: Faces Lifshitz Suit Over Proposed CVS Merger SINERGIA INC: Sarr Bid for Collective Certification Granted in Part SINGTEL OPTUS: Australian Regulators Open Probe Amid Suit Threats SPOKEO INC: Osuna Sues Over Deceptive and Fictitious Advertising STERLING INFOSYSTEMS: Forestal FCRA Suit Removed to S.D. Florida T-MOBILE US: Agrees to Settle Data Breach Class Action for $350-M T.E.M.P.S. INC: Brent Sues Over Failure to Pay Proper Wages TIKTOK INC: Frankel Sues Over Unlawful Use of Persona TRANSPERFECT TRANSLATIONS: Loses Bid to Dismiss Metcalf Labor Suit TRIBUCHA INC: Burke Sues Over Misleading and False Advertising TRUMBULL INSURANCE: Seeks to Certify Proposed Certified Questions VANDA PHARMACEUTICALS: $11.5MM Settlement to be Heard on Jan. 5 VEECO INSTRUMENTS: Court Sets Nov. 17 Settlement Approval Hearing VERIZON COMMUNICATIONS: Bid for Arbitration in Fritzco Suit Okayed VI-JON LLC: Court Refuses to Dismiss Loughlin's 2nd Amended Suit WALMART INC: Equate Product Won't Treat Cuts, Abrasions, Suit Says WALMART INC: Seeks Dismissal of Marijuana Screening Class Action XAVIER BECERRA: Johnson Files Suit in D. Columbia [*] Marijuana Financial Restatements May Prompt Class Actions ********* A.O.L. LLC: Lancaster Sues Over Recover Unpaid Overtime Wages ------------------------------------------------------------- Bradley T. Lancaster, and other similarly situated individuals v. A.O.L., LLC, d/b/a Almond Oil Company, Case No. 1:22-cv-00253-MW-MAF (N.D. Fla., Oct. 6, 2022), is brought to recover money damages for unpaid overtime wages and retaliation under the United States laws, pursuant to the Fair Labor Standards Act. The Plaintiff had a regular schedule, and he worked five days per week, from Monday to Friday or a total minimum of 50 hours weekly. The Plaintiff was paid for only 40 regular hours, but he was not paid for overtime hours, as required by law. The Plaintiff clocked in and out, and the Defendant was in absolute control of his schedule and activities. The Defendant knew the number of hours that Plaintiff and similarly situated individuals were working. Therefore, the Defendant willfully failed to pay the Plaintiff overtime wages, at the rate of time and a half his regular rate, for every hour that he worked in excess of 40, in violation of the FLSA, says the complaint. The Plaintiff was employed by the Defendant as a non-exempted, full-time, hourly employee from February 28, 2022, to August 04, 2022. Almond Oil Company is a petroleum oil products wholesaler.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com ACADEMIC SOLUTIONS: Lawrence Files FDCPA Suit in W.D. New York -------------------------------------------------------------- A class action lawsuit has been filed against Academic Solutions of New York, LLC, et al. The case is styled as Jamie Lawrence, individually and on behalf of others similarly situated v. Academic Solutions of New York, LLC doing business as: Recovery Solutions of New York, Brightwater Capital, LLC, Case No. 1:22-cv-00761-JLS (W.D.N.Y., Oct. 6, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Academic Solutions of New York -- https://www.academicgroup.com/academic-solutions -- is providing innovative management services to the professional medical liability insurance market.[BN] The Plaintiff is represented by: Tamir Saland, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601-2726 Phone: (201) 282-6500 Fax: (201) 282-6501 Email: tsaland@steinsakslegal.com ADRIAN COLLEGE: Senior Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Adrian College. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. Adrian College, Case No. 1:22-cv-08531 (S.D.N.Y., Oct. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Adrian College -- http://adrian.edu/-- is a private liberal arts college in Adrian, Michigan and offers bachelor's degrees in 40 academic majors and programs.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal ALIGN TECHNOLOGY: Snow Suit Transferred to N.D. California ---------------------------------------------------------- The case styled as Misty Snow, individually and on behalf of all others similarly situated v. Align Technology, Inc., Defendant; SmileDirectClub, Interested Party; Case No. 3:22-mc-00012 was transferred from the U.S. District Court for the Middle District of Tennessee, to the U.S. District Court for the Northern District of California on Oct. 6, 2022. The District Court Clerk assigned Case No. 3:22-mc-80258-SK to the proceeding. The nature of suit is stated as Other Fraud. Align Technology -- https://www.aligntech.com/ -- is an American manufacturer of 3D digital scanners and Invisalign clear aligners used in orthodontics.[BN] The Plaintiff is represented by: James Gerard Stranch, IV, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Phone: (615) 254-8801 Fax: (615) 255-5419 Email: gerards@bsjfirm.com - and - Rio S. Pierce, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Phone: (510) 725-3000 Fax: (510) 725-3001 Email: riop@hbsslaw.com - and - Steve W. Berman, Esq. Theodore Wojcik, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Phone: (206) 623-7292 Fax: (206) 623-0594 Email: steve@hbsslaw.com tedw@hbsslaw.com The Defendant is represented by: Jameson R. Jones, Esq. BARTLIT BECK LLP 1801 Wewatta Street, Suite 1200 Denver, CO 80202 Phone: (303) 592-3100 Fax: (303) 592-3140 Email: jameson.jones@bartlitbeck.com - and - Luke C. Beasley, Esq. Rebecca Weinstein Bacon, Esq. BARTLIT BECK LLP 54 W Hubbard Street, Suite 300 Chicago, IL 60654 Phone: (312) 494-4400 Email: luke.beasley@bartlitbeck.com rweinstein.bacon@bartlit-beck.com The Interested Party is represented by: James D. Dasso, Esq. Lauren M. Loew, Esq. FOLEY & LARDNER LLP 321 N. Clark Street, Ste. 3000 Chicago, IL 60654 Phone: (312) 832-4501 Email: jdasso@foley.com lloew@foley.com - and - Kendall Erin Waters, Esq. FOLEY & LARDNER LLP 555 South Flower Street, Suite 3300 Los Angeles, CA 90071 Phone: (213) 972-4899 Fax: (213) 486-0065 Email: kwaters@foley.com ANAGABAND 8430: Ordenana Sues Over Unpaid Regular, Overtime Wages ----------------------------------------------------------------- Cesar A. Ordenana, and other similarly situated individuals v. ANAGABAND 8430 LLC, and SILVIA DI MARCO, individually, Case No. 1:22-cv-23255-XXXX (S.D. Fla., Oct. 6, 2022), is brought to recover money damages for unpaid regular and overtime wages and under the laws of the United States, pursuant to the Fair Labor Standards Act. The Plaintiff worked regularly and consistently an average of 81 hours weekly, but he was not paid for overtime hours. The Plaintiff did not clock in and out, but Defendants were able to monitor the hours worked by the Plaintiff and other similarly situated individuals. The Defendants did not keep accurate records of hours worked each workday, hours worked each workweek, and earnings and wages paid. Therefore, the Defendants willfully failed to pay the Plaintiff for all his overtime hours at the rate of time and one-half his regular rate for every hour that he worked in excess of 40, in violation of the FLSA, says the complaint. The Plaintiff was hired as a non-exempted employee to perform non exempted work as a maintenance and repairing employee. ANAGABAND is a management and real estate company dedicated to the rent of residential units.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com ANTERO RESOURCES: Loses Bid to Bifurcate Claim & Stay McArdle Suit ------------------------------------------------------------------ In the case, McARDLE FAMILY PARTNERSHIP, Plaintiff v. ANTERO RESOURCES CORPORATION and KEY OIL COMPANY, Defendants, Civil No. 1:22-CV-1 (KLEEH) (N.D.W. Va.), Judge Thomas S. Kleeh of the U.S. District Court for the Northern District of West Virginia denies the Defendants' motion to bifurcate Count II and stay the remainder of the action, and refers discovery motions to Magistrate Judge Michael J. Aloi. The case involves allegations of underpayment, nonpayment, and untimely payment of oil and gas royalties by Defendants Antero and Key Oil. The Plaintiff brings individual and class action claims. The class allegations are only against Antero. The Plaintiff defines the class under Rule 23(b)(3) of the Federal Rules of Civil Procedure as follows: Persons and entities, including their respective successors and assigns, to whom Antero has paid overriding royalties (ORRI Royalties) on oil and natural gas, produced by Antero from wells located in West Virginia at any time since April 15, 2012, pursuant to overriding royalty agreements (the Royalty Agreements) which do not expressly allow deductions for costs and expenses (excluding taxes). The Plaintiff defines the permissive subclasses pursuant to Rule 23(d): a. The Gross Income Subclass: Persons and entities, including their respective successors and assigns, to whom Antero has paid ORRI Royalties on oil and natural gas, produced by Antero from wells located in West Virginia at any time since April 15, 2012, pursuant to the ORRI Agreements which do not expressly allow deductions for costs and expenses (excluding taxes) and expressly state that the ORRI Royalties should be paid on a gross income basis. b. The Free of Cost Subclass: Persons and entities, including their respective successors and assigns, to whom Antero has paid ORRI Royalties on oil and natural gas, produced by Antero from wells located in West Virginia at any time since April 15, 2012, pursuant to ORRI Agreements which do not expressly allow deductions for costs and expenses (excluding taxes) and expressly state that the ORRI Royalties should be paid free of costs. By Assignment recorded on May 9, 2008, the Plaintiff asserts that it became vested with a 1/16 (6.25%) gross income overriding royalty interest in portions of what is collectively referred to as the Corlis P. Hudson lease. This area is an approximately 491-acre mineral leasehold estate in Doddridge County, West Virginia. The overriding royalty interest was created by an Assignment - Agreement dated May 1, 1978. Pursuant to the overriding royalty payment language, the royalty is to be paid on 1/16 of the "gross income derived from the sale of oil and gas from the aforesaid leases and/or any and all wells which may be drilled thereupon, free from costs of exploration, operation, maintenance or abandonment. The Plaintiff asserts that it has received only partial payment associated with the Hudson gross overriding royalty interest because its payments have been on a "net" basis, after Antero took substantial and unwarranted deductions. Around the same time, the Plaintiff acquired additional overriding/profits interests that were previously held by James Drilling Corp. By Assignment recorded May 9, 2008, the Plaintiff became vested with additional, distinct interests previously held by James Drilling Corporation in the following leasehold estates: (1) the 491-acre Hudson lease; (2) the approximately 34-acre W.D. Towner lease situation in the Central District of Doddridge County; and (3) the approximately 97-acre Stone lease situate in the Central District of Doddridge County. Pursuant to Hudson corporate net profits interest, the Plaintiff is to be paid 1/64 "of the gross income from all oil and/or gas which may be produced and sold by virtue of said leases, free from costs of exploration, operation, maintenance or abandonment." It asserts that it has not received any payment from Antero or Key Oil for this interest. Pursuant to the Towner overriding royalty, the Plaintiff is to be paid "free of cost a one-thirty-second interest in all oil or gas produced from any and all wells drilled on the aforesaid tract of real estate, which interest is called or known as an over-ride, free and clear of all drilling, equipping and operating, and to pay to, or see that said income, if any, is paid direct to said first party." It asserts that she has not received any payment from Antero or Key Oil for this interest. Pursuant to the Stone overriding royalty, the Plaintiff is to be paid "free of cost a one-thirty-second interest in all oil or gas produced from any and all wells drilled on the aforesaid tract of real estate, which interest is called or known as an over-ride, free and clear of all drilling, equipping and operating, and to pay to, or see that said income, if any, is paid direct to said first party." It asserts that it has not received any payment from Antero or Key Oil for this interest. On March 28, 2013, Antero contacted the Plaintiff to advise that it "is the owner of record of an oil and gas interest" in the Stone lease. From 2013 until March 2020, however, the Plaintiff had no contact with Antero or Key Oil. Moreover, it was unaware that Antero and Key Oil were actively producing its assets. From late 2012 to September 2020, the Defendants were actively producing oil and gas assets in whichthe Plaintiff owned various interests, and no payments were made to Plaintiff for this approximately eight years of production. The Plaintiff alleges that for a reason unknown to it, the 1/16 personal Hudson overriding royalty was ultimately found to have been unilaterally placed in "suspense" by Antero for this approximately eight-year period. In late 2020, when the Plaintiff attempted to inquire into the amount, failure to make, and timing of payment, Antero failed to respond. It believes that the payment of the additional assets may be "suspended" now without justification or right. Antero ignored the Plaintiff's attempt to address these issues prior to litigation. The Plaintiff asserts that the Royalty Agreement language described in the definitions of the Class, Gross Income Subclass, and Free of Cost Subclass provides that Antero is to pay royalties on gross production, not on a net, unilateral basis defined by Antero. Further, it asserts, there is no language in the Royalty Agreement described in the Class definition that provides that Antero is permitted to deduct any of its costs/expenses in its calculation of royalties to be paid to the Class members. By the underpayment of the overriding royalties owed to the Plaintiff and the Class, Antero has breached its obligations to Plaintiff and the Class. As a result, the Plaintiff and the Class have sustained substantial damages. Based on these facts, the Plaintiff asserts the following: a. Individual Claims 1. Count One: Breach of Contract/Implied Duty to Market (against Antero - Improper Deductions) (Hudson Mineral Acreage - 1/16 Overriding Royalty); 2. Count Two: Breach of Contract (against Antero and Key Oil - Failure to Pay) (Towner, Stone and Hudson Mineral Acreage); 3. Count Three: Breach of Statutory Obligation to Pay Interest (against Antero); 4. Count Four: Accounting and Disgorgement (against Antero and Key Oil); 5. Count Five: Constructive Fraud (against Antero); b. Class Claims 6. Count Six: Breach of Contract/Implied Duty to Market (against Antero - Improper Deductions and Overriding Royalty Payments); 7. Count Seven: Constructive Fraud (against Antero); and 8. Count Eight: Breach of Statutory Obligation to Pay Interest (against Antero). The Defendants ask the Court to bifurcate Count II and stay the remainder of the action pending the following: a. The resolution of Count II; b. The certified questions in SWN Production Company, LLC v. Kellam, No. 21-0729, 2022 WL 2128335 (W. Va. June 14, 2022); and c. The appeal in Corder v. Antero Resources Corp., No. 21-1715 (4th Cir.). Since the motion was filed, the Supreme Court has issued a decision in Kellam. Therefore the only bases for the Defendants' requested stay are the resolution of Count II and the Corder appeal. The Defendants contest the overriding royalty interests at issue in Count II. The outcome of the title issues, they argue, may make the resolution of Counts III, IV, and V unnecessary. Further, they argue, Counts I and V raise issues that may be impacted by Corder and may make resolution of Counts II, IV, and V unnecessary in certain aspects. Defendants assert that they will be unduly prejudiced absent a stay and that Plaintiffs will not be harmed by a stay. In response, the Plaintiff argues that this is a delay tactic by the Defendants and that the royalty provisions in this matter are fundamentally different than the issues presented in Corder. In Corder, the Plaintiff argues, the primary issues relate to the application of Wellman and Tawney to market value royalty clauses/market enhancement royalty clauses -- not to royalty/payment provisions which expressly provide for payment on "gross income" or "free of costs," as is the case in this litigation. The Plaintiff argues that any effect of Corder on this case is purely speculative and therefore a stay is not warranted. It also argues it would be prejudiced by bifurcation and a stay. For eight years, not known at the time to it, Antero enjoyed the benefits of its oil and gas royalties, making partial payments and no payments at all. Further, it would force the Plaintiff to factually develop the same case twice. The Plaintiff argues that a stay is not warranted because Plaintiff's claims are interrelated. Finally, it argues, while constructive fraud is pled, Corder involves actual fraud. Judge Kleeh finds that the Defendants have not met their burden to show that a bifurcation of Count II will promote greater convenience to the parties, witnesses, jurors, and the court; be conducive to expedition and economy; and not result in undue prejudice to any party. As the Plaintiff points out, the Defendants are asserting a defense to a breach of contract claim by challenging the interest at issue in Count II. While the resolution Count II might resolve other counts, the Defendants are also free to file a summary judgment motion on other counts at the appropriate time. Considering the Plaintiff's allegation that it has gone without payments for eight years, it could result in undue prejudice if Count II is bifurcated. In addition, Judge Kleeh opines that the Plaintiff has not met its burden to show that a stay is warranted. While it is possible that judicial economy could be served by staying the case pending the outcome of Corder, he is not convinced that the lease provisions at issue in the cases are the same. The lease issues involve payments being made on a "net" basis instead of a "gross" basis. In Corder, on the other hand, the issues surround "market value" clauses, market enhancement clauses, and "proceeds" clauses. The leases here are even less likely than in Romeo to be affected by Corder. Thus, the Defendants have failed to show that the interests of judicial economy are served by a stay or that they would suffer hardship if the action is not stayed. As for the potential prejudice to the nonmoving party, because the Plaintiff alleges that it has gone without full payments for eight years, it would suffer prejudice if the Court stayed the action pending the Corder appeal. Pending before the Court are four discovery motions, some or all of which will be affected by Judge Kleeh's Memorandum Opinion and Order and the forthcoming Scheduling Order. Pursuant to 28 U.S.C. Sectio 636, he refers the motions to Magistrate Judge Aloi for disposition. In ruling on the motion, the Magistrate Judge is authorized to consider the record, conduct a hearing if necessary, and do all things proper to render a decision. For the reasons he discussed, Judge Kleeh denies the motion to bifurcate and stay and refers discovery motions to the Magistrate Judge [ECF Nos. 46, 54, 66, 71]. The Court will separately issue a Scheduling Order. The Clerk is directed to transmit copies of the Memorandum Opinion and Order to counsel of record and Magistrate Judge Aloi. A full-text copy of the Court's Sept. 30, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/24hdxctt from Leagle.com. BATH AND BODY: Licea Sues Over Unlawful Secret Wiretapping ---------------------------------------------------------- Jose Licea, individually and on behalf of all others similarly situated v. BATH AND BODY WORKS DIRECT INC., a Delaware Corporation; and DOES 1 through 25, inclusive, Case No. 3:22-cv-01528-BAS-DEB (S.D. Cal., Oct. 6, 2022), is brought against the Defendant for violations of the California Invasion of Privacy Act as a result of the Defendant who secretly wiretaps the private conversations on its Website without warning visitors or obtaining their consent. The Defendant secretly wiretaps the private conversations of everyone who communicates through the chat feature at www.bathandbodyworks.com (the "Website"); and allows at least one third party to eavesdrop on such communications in real time to harvest data for financial gain. The Defendant does not obtain visitors' consent to either the wiretapping or the eavesdropping. As a result, the Defendant has violated the CIPA in numerous ways. To enable the wiretapping, Defendant has covertly embedded code into its chat feature that automatically records and creates transcripts of all such conversations. To enable the eavesdropping, Defendant allows at least one independent third-party to secretly intercept in real time, eavesdrop upon, and store transcripts of the Defendant's chat communications with unsuspecting website visitors--even when such conversations are private and deeply personal. The Defendant neither informs visitors of this conduct nor obtains their consent to these intrusions, says the complaint. The Plaintiff is a resident and citizen of California. The Defendant is a Delaware limited liability company that owns, operates, and/or controls the www.bathandbodyworks.com website.[BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS A Professional Corporation 4100 Newport Place Drive, Ste. 800 Newport Beach, CA 92660 Phone: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com BELMONT UNIVERSITY: Senior Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Belmont University. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. Belmont University, Case No. 1:22-cv-08532 (S.D.N.Y., Oct. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Belmont University -- https://www.belmont.edu/ -- is a private Christian university in Nashville, Tennessee.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal BEST WESTERN: Fails to Pay Proper Wages, Mrkus Suit Alleges ----------------------------------------------------------- HELENA R. MRKUS, individually and on behalf of all others similarly situated, Plaintiff v. BEST WESTERN AKU TIKI INN, Defendant, Case No. 6:22-cv-01835 (M.D. Fla., Oct. 07, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Mrkus was employed by the Defendant as housekeeper. BEST WESTERN AKU TIKI INN is a hotel and resort located at Daytona Beach, Florida. [BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd. Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com BETHUNE-COOKMAN UNIVERSITY: Senior Files ADA Suit in S.D. New York ------------------------------------------------------------------ A class action lawsuit has been filed against Bethune-Cookman University Inc. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. Bethune-Cookman University Inc., Case No. 1:22-cv-08533 (S.D.N.Y., Oct. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bethune–Cookman University -- https://www.cookman.edu/ -- is a private historically black university in Daytona Beach, Florida.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal BITNILE HOLDINGS: J P Crown Sues Over Undisclosed Information ------------------------------------------------------------- J P Crown Trust, directly on behalf of itself and all other similarly situated stockholders of BITNILE HOLDINGS, INC. v. BITNILE HOLDINGS, INC., MILTON C. AULT, III, WILLIAM B. HORNE, HENRY C.W. NISSER, ROBERT O. SMITH, HOWARD ASH, JEFFREY A. BENTZ, and MORDECHAI ROSENBERG, Case No. 2022-0904- (Del. Chancery Ct., Oct. 6, 2022), is brought arising from the Board's failure to disclose patently material information in connection with the stockholder vote on severely outsized equity and option grants (the "Grants") to each of the Director Defendants. The Grants could provide the Director Defendants with more than one third of the Company's total outstanding shares of common stock, yet the Director Defendants have failed to provide stockholders with even the most basic information necessary to cast an informed vote on whether to approve the Grants. The Proxy omits patently material information necessary to allow stockholders to make an informed decision on whether to support the Grants, including: any description of the process and negotiations (if any) that led to the Grants, including who originated the idea for the Grants, what Board or committee meetings occurred to discuss the Grants, and which Director Defendants participated in any such meetings; whether any advisors, consultants, and/or outside counsel were consulted during the process culminating in the Grants and, if so, a fair summary of the (a) analysis and/or recommendation(s) provided by any such advisors or consultants, (b) fee arrangements with any such advisors or consultants or (c) potential conflicts regarding the Grants of any such advisors or consultants; whether there were any recusals or abstentions by any Director Defendants in light of their clear conflicts of interest as recipients of the Grants they approved; any information regarding the "milestones" purportedly established by the BitNile Compensation Committee (the "Compensation Committee") that must be achieved in order for 50% of the stock options granted in connection with Grants to vest, and specifically that BitNile predicted that the milestones were probable of achievement in the near term; the actual agreements (or even a description of the agreements) encompassing the Grants entered into between BitNile and each of the Director Defendants; and information sufficient for stockholders to glean any sense of the Grants' individual or collective expected value, including their grant date fair value and/or present value. The Plaintiff seeks an order preventing the Company from convening the stockholder vote on the Grants unless and until the Board discloses to public stockholders all information necessary to allow them to make an informed decision regarding whether to support the Grants, says the complaint. The Plaintiff is a stockholder of BitNile and has owned shares of BitNile common stock since March 2022. BitNile is a diversified holding company with operations conducted primarily through its wholly owned subsidiaries that span a variety of industries including but not limited to Bitcoin and cryptocurrency mining, electric vehicle charging, real estate investing, and defense and aerospace solutions.[BN] The Plaintiff is represented by: Ned Weinberger, Esq. LABATON SUCHAROW LLP 222 Delaware Ave., Suite 1510 Wilmington, DE 19801 Phone: (302) 573-2540 - and - Jeremy Friedman, Esq. David Tejtel, Esq. FRIEDMAN OSTER & TEJTEL PLLC 493 Bedford Center Road, Suite 2D Bedford Hills, NY 10507 Phone: (888) 529-1108 - and - D. Seamus Kaskela, Esq. Adrienne Bell, Esq. KASKELA LAW LLC 18 Campus Boulevard, Suite 100 Newtown Square, PA 19073 Phone: (484) 258-1585 BOASSO AMERICA: Polanco Seeks Final Approval of Class Settlement ---------------------------------------------------------------- In the class action lawsuit captioned as RAMON S. POLANCO, On behalf of himself and all other similarly situated persons, v. BOASSO AMERICA CORPORATION, Case No. 2:18-cv-13448-MAH (D.N.J.), the Plaintiff asks the Court to enter an order for final approval of class action settlement. The Plaintiff contends that the Motion is being filed with the assent of all parties and upon notice to the class. Boasso operates as a tank container and depot service provider. A copy of the Plaintiff's motion to certify class dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3Vl4rGs at no extra charge.[CC] The Plaintiff is represented by: Ravi Sattiraju, Esq. SATTIRAJU & THARNEY, LLP 50 Millstone Road Building 300, Suite 202 East Windsor, NJ 08520 Telephone: (609) 469-2110 E-mail: rsattiraju@s-tlawfirm.com BOEING CO: $6.25MM Class Settlement to be Heard on Dec. 14 ---------------------------------------------------------- The Boeing Company pursuant to Orders of the United States District Court for the Northern District of Illinois and the Court of Chancery of the State of Delaware issued the following release: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION SEAFARERS PENSION PLAN v. ROBERT A. BRADWAY, et al. and THE BOEING COMPANY as Nominal Defendant DOCKET NO. 1:19-cv-08095 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE SEAFARERS PENSION PLAN v. ROBERT A. BRADWAY, et al. C.A. No. 2020-0556-MTZ SUMMARY NOTICE OF PENDENCY OF DERIVATIVE AND CLASS ACTIONS, PROPOSED SETTLEMENTS OF THE ACTIONS, AND SETTLEMENT HEARINGS TO: ALL CURRENT STOCKHOLDERS OF THE BOEING COMPANY ("BOEING") ALL HOLDERS OF BOEING STOCK BETWEEN DECEMBER 11, 2019 AND AUGUST 10, 2022 PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS WILL BE AFFECTED BY THE LEGAL PROCEEDINGS IN THE ACTIONS. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23.1 of the Federal Rules of Civil Procedure and an order of the United States District Court for the Northern District of Illinois (the "Federal Court") of the pendency of the above-captioned stockholder derivative action titled Seafarers Pension Plan v. Robert A. Bradway, et al. (the "Federal Action"), which was brought by the Seafarers Pension Plan ("Seafarers" or "Plaintiff") on behalf of and for the benefit of Boeing and current Boeing stockholders. YOU ARE FURTHER NOTIFIED, pursuant to Rule 23 of the Rules of the Court of Chancery of the State of Delaware (the "Delaware Court") and a Scheduling Order of the Delaware Court, of the pendency of the above-captioned putative stockholder class action titled Seafarers Pension Plan v. Robert A. Bradway, et al., C.A. No. 2020-0556-MTZ (the "Delaware Action"), which was brought by Seafarers on behalf of a putative class of Boeing stockholders who held Boeing stock at any time between December 11, 2019 and August 10, 2022 (the "Delaware Settlement Class"). YOU ARE FURTHER NOTIFIED that, as provided in a Stipulation and Agreement of Compromise, Settlement, and Release (the "Stipulation") agreed upon by Plaintiff and Federal Defendants and Delaware Defendants (as defined in the Stipulation, collectively, "Defendants") to resolve the Federal Action and Delaware Action, dated August 10, 2022, Plaintiff and Defendants (collectively, the "Parties"), have reached proposed settlements in both the Federal Action and the Delaware Action, subject to approval of the Federal Court and the Delaware Court. Pursuant to the Stipulation, as consideration for the Federal Settlement, Defendants shall cause their insurers to make a monetary payment to Boeing of $6.25 million, less the amount of any attorneys' fee and expense award and service award awarded by the Federal Court. Also pursuant to the Stipulation, as consideration for the Federal and Delaware Settlements, Boeing shall modify the language of its by-law concerning forum selection to the agreed language set forth in Exhibit A to the Stipulation. Additional information concerning the terms of the Settlements, as well as a description of the history of both the Federal Action and Delaware Action and an explanation of stockholders' legal rights with respect to the Settlements, is provided in the full Notice of Pendency of Derivative and Class Actions, Proposed Settlements of the Actions, and Settlement Hearings (the "Notice"). The Notice is being sent by mail to record holders of Boeing stock as of the close of business on the date of the Stipulation and Delaware Settlement Class members who were record holders of Boeing stock, or, with respect to such holders who have elected to receive information from Boeing electronically, by electronic means. Boeing stockholders may also request a copy of the Stipulation and the Notice by contacting counsel listed below. A hearing regarding the settlement of the Federal Action will be held by the Federal Court (the "Federal Settlement Hearing") via Zoom on December 14, 2022 at 9:45 a.m. Videoconference and dial-in information is available on the Federal Court's docket or by contacting Plaintiff's Counsel. At the Federal Settlement Hearing, the Federal Court will be asked to: (a) determine whether the terms and conditions of the Settlement in the Federal Action, as set forth in the Stipulation, are fair, reasonable, adequate, and in the best interests of Boeing and its stockholders and should be approved by the Federal Court; (b) determine whether the Federal Order and Final Judgment should be entered, dismissing the Federal Action with prejudice, including as against the Federal Defendants, releasing the Released Federal Plaintiff Claims against the Released Defendant Parties, and barring and enjoining prosecution of any and all (i) Released Federal Plaintiff Claims against any and all Released Defendant Parties and (ii) Released Defendant Claims against any and all Released Plaintiff Parties (as such terms are defined in the Stipulation); (c) hear and determine any objections to the Federal Settlement; (d) consider Plaintiff's petition for an award of attorneys' fees and expenses and service award (the "Fee and Expense Application"); and (e) rule on other such matters as the Federal Court may deem appropriate. A hearing regarding the Delaware Action will also be held by the Delaware Court (the "Delaware Settlement Hearing"). The Delaware Settlement Hearing shall be held at the Leonard L. Williams Justice Center, 500 North King Street, Wilmington, Delaware 19801, on January 5, 2023 at 11:00 a.m. At the Delaware Settlement Hearing, the Delaware Court will be asked to: (a) determine whether the terms and conditions of the Settlement in the Delaware Action, as set forth in the Stipulation, are fair, reasonable, adequate, and in the best interests of the Delaware Settlement Class and should be approved by the Delaware Court; (b) determine whether the Delaware Order and Final Judgment should be entered, dismissing the Delaware Action with prejudice, including as against the Delaware Defendants, releasing the Released Delaware Plaintiff Claims against the Released Defendant Parties, and barring and enjoining prosecution of any and all Released Delaware Plaintiff Claims against any and all Released Defendant Parties (as such terms are defined in the Stipulation); (c) for settlement purposes only, certify, on a non-opt out basis, the Delaware Settlement Class, appoint Plaintiff as class representative for the Delaware Settlement Class, and appoint Plaintiff's Counsel as class counsel for the Delaware Settlement Class; (d) hear and determine any objections to the Settlement; and (e) rule on other such matters as the Delaware Court may deem appropriate. Stockholders may, but do not need to, attend either the Federal Settlement Hearing or the Delaware Settlement Hearing. Any objections to the proposed Settlement in the Federal Action must be filed with the Federal Court and delivered to counsel for Plaintiff and Defendants such that they are received no later than twenty (20) calendar days before the Federal Settlement Hearing, in accordance with the instructions set forth in the Notice. Any objections to the proposed Settlement in the Delaware Action must be filed with the Delaware Court and delivered to counsel for Plaintiff and Defendants such that they are received no later than twenty (20) calendar days before the Delaware Settlement Hearing, in accordance with the instructions set forth in the Notice. The Settlements will not become effective until both the Federal Order and Final Judgment and the Delaware Order and Final Judgment are entered by their respective Courts, and both Actions are dismissed. If approved, the Settlements will resolve all claims in the Federal and Delaware Actions. Please note: Because the Federal Action was brought as a derivative action, which means that it was brought on behalf of and for the benefit of Boeing, the benefits from the Federal Settlement will go to Boeing. Individual Boeing stockholders will not receive any direct payment from the Federal Settlement. Also, please note that there is no proof of claim form for stockholders to submit in connection with the Settlements, and stockholders are not required to take any action in response to this notice. DO NOT CALL OR WRITE TO THE FEDERAL COURT, THE OFFICE OF THE CLERK OF THE FEDERAL COURT, THE DELAWARE COURT, OR THE OFFICE OF THE REGISTER IN CHANCERY REGARDING THIS NOTICE. All questions regarding this notice and the Settlements should be made to the following counsel for Plaintiff: Carol V. Gilden, Esq COHEN MILSTEIN SELLERS & TOLL PLLC 190 S. LaSalle Street, Suite 1705 Chicago, Illinois 60603 cgilden@cohenmilstein.com Richard A. Speirs, Esq. Amy Miller, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 88 Pine Street, 14th Floor New York, New York 10005 rspeirs@cohenmilstein.com amiller@cohenmilstein.com Dated: September 1, 2022 BY ORDER OF THE COURT United States District Court for the Northern District of Illinois BY ORDER OF THE COURT Court of Chancery of the State of Delaware BOWMAR NUTRITION: Bass, et al., Seek Sched Order & Discovery Plan ----------------------------------------------------------------- In the class action lawsuit captioned as STACIE BASS, et al. v. BOWMAR NUTRITION LLC, Case No. 4:21-cv-00307-SHL-HCA (S.D. Iowa), the Parties ask the Court to enter a joint proposed scheduling order and discovery plan as follows: -- Deadline for motions to add parties: November 1, 2022 -- Deadline for motions to amend the December 1, 2022 pleadings: -- Class expert witnesses disclosed by: Plaintiff: February 24, 2023 Defendant: April 21, 2023 Plaintiff's Rebuttal: May 19, 2023 -- Deadline for completion of class June 2, 2023 discovery: -- Class Certification Deadline: July 14, 2023 A copy of the Parties' motion dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3SRfPbr at no extra charge.[CC] The Plaintiffs are represented by: Eric S. Mail, Esq. PURYEAR LAW P.C. 3719 Bridge Ave, Suite 6 Davenport, IA 52807 Telephone: (563) 265-8344 E-mail: mail@puryearlaw.com eric@puryearlaw.com - and - Charles C. Weller, Esq. CHARLES C. WELLER, APC 11412 Corley Court San Diego, CA 92126 Telephone: (858) 414-7465 E-mail: legal@cweller.com The Defendant is represented by Matthew R. Orr, Esq. William P. Cole, Esq. AMIN TALATI WASSERMAN LLP 515 S. Flower St. Los Angeles, CA 90071 E-mail: william@amintalati.com matt@amintalati.com - and - Samuel E. Jones, Esq. SHUTTLEWORTH & INGERSOLL P.L.C. 115 Third St., SE, Ste 500 Cedar Rapids, IA 52401 Telephone: (319) 365-9461 E-mail: sej@shuttleworthlaw.com CALVERT'S EXPRESS: Manager Class Gets Conditional Certification --------------------------------------------------------------- In the class action lawsuit captioned as JEREMY HEITZMAN, and on behalf of all others similarly situated, v. CALVERT'S EXPRESS AUTO SERVICE & TIRE, LLC, , Case No. 2:22-cv-02001-JAR-ADM (D. Kan.), the Hon. Judge Julie A. Robinson entered an order: 1. conditionally certifying a collective action for the following class of persons: "All current and former Shop Managers and District Managers who were paid a day rate while working for Calvert’s Express Auto Service & Tire anywhere in the United States, at any time from October 21, 2018, through the date the Court grants conditional certification;" 2. directing the Plaintiff to provide a new notice form, revised in accordance with this Order, to Defendant for review by October 11, 2022; 3. directing the Defendant ip provide Plaintiff with a list of putative class members' names, current or last known addresses, email addresses, and phone numbers to facilitate Plaintiff disseminating notice by mail, email, and text message; 4. denying the Plaintiff's request to post the notice at its places of business; and 5. granting the Plaintiff's request for a reminder notice halfway through the notice period. A copy of the Court's order dated Oct. 6, 2022 is available from PacerMonitor.com at https://bit.ly/3Mqp7ZK at no extra charge.[CC] CAPITAL ASSET: Esquivel Files FDCPA Suit in S.D. Florida -------------------------------------------------------- A class action lawsuit has been filed against Capital Asset Management, LLC. The case is styled as Evelinda Esquivel, on behalf of herself and others similarly situated v. Capital Asset Management, LLC, Case No. 1:22-cv-23248-XXXX (S.D. Fla., Oct. 6, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Capital Asset Management, Inc. -- https://www.capitalassetmanagement.com/ -- is a full service financial services firm.[BN] The Plaintiff is represented by: Jesse S Johnson, Esq. James Lee Davidson, Esq. GREENWALD DAVIDSON RADBIL PLLC 7601 N. Federal Hwy., Suite A-230 Boca Raton, FL 33487 Phone: (561) 826-5477 Fax: (561) 961-5684 Email: jjohnson@gdrlawfirm.com jdavidson@gdrlawfirm.com - and - Matisyahu H. Abarbanel, Esq. LOAN LAWYERS, LLC. 2150 South Andrews Avenue, 2nd Floor Fort Lauderdale, FL 33316 Phone: (954) 523-4357 Fax: (954) 581-2786 Email: matis@fight13.com - and - Matthew David Bavaro, Esq. LOAN LAWYERS 3201 Griffin Road, Suite 100 Fort Lauderdale, FL 33312 Phone: (954) 523-4357 Email: matthew@fight13.com CAPITOL SECURITY: Cadero Sues Over Unpaid Overtime Wages -------------------------------------------------------- Manuel Izquierdo Cadero, and all others similarly situated v. CAPITOL SECURITY SERVICES INC, a Florida profit corporation, SECURITY SERVICES OF AMERICA, INC., a Florida profit corporation, MANUEL LOPEZ, individually, and JORGE L. ONDINA, individually, Case No. 1:22-cv-23247-XXXX (S.D. Fla., Oct. 6, 2022), is brought against the Defendants for damages in connection to claims for unpaid overtime wages pursuant to the Fair Labor Standards Act. The Plaintiff regularly worked well over 40 hours a week for the Defendants. The Defendants, however, never paid the Plaintiff an overtime premium for his overtime hours worked as required by the FLSA. The Defendants, failed to compensate the Plaintiff, and those similarly situated, for his overtime hours worked at a rate of no less than one-and-one-half their regular rates of pay as required by the FLSA, says the complaint. The Plaintiff began working for the Defendants in April 2022. CSS is a Florida profit corporation that conducted business in Miami-Dade County, Florida.[BN] The Plaintiff is represented by: J. Freddy Perera, Esq. PERERA ALEMÁN, P.A. 12505 Orange Drive, Suite 908 Davie, FL 33330 Phone: 786.485.5232 Email: freddy@pba-law.com CARVANA LLC: Loses Arbitration and Dismissal Bid in Jennings Suit ----------------------------------------------------------------- In the case, DANA JENNINGS and JOSEPH A. FURLONG, Individually and on Behalf of All Others Similarly Situated, Plaintiffs v. CARVANA LLC, Defendant, Civil Action No. 21-5400 (E.D. Pa.), Judge Edward G. Smith of the U.S. District Court for the Eastern District of Pennsylvania denies the Defendant's Motion to Compel Arbitration and to Dismiss. Two Pennsylvania citizens have commenced a proposed class action against a national used car dealer in which they claim that the dealer breached its contract with them and violated Pennsylvania's Unfair Trade Practices and Consumer Protection Law when the dealer failed to timely transfer titles for purchased vehicles. This delay allegedly prevented the purchasers and other individuals in the proposed class from being able to legally drive the vehicles because they could not timely register the vehicles or purchase adequate insurance coverage. Plaintiffs Jennings and Furlong, who are both Pennsylvania citizens, commenced this consumer protection action by filing a putative class action complaint against Carvana in the Court of Common Pleas of Philadelphia County on Nov. 5, 2021. On Dec. 9, 2021, Carvana removed the matter to this Court under 28 U.S.C. Sections 1441, 1453, invoking federal jurisdiction under the general diversity statute, 28 U.S.C. Section 1332(a), and the Class Action Fairness Act ("CAFA"), 28 U.S.C. Sections 1332(d). Prior to Carvana filing a response to the complaint, the Plaintiffs filed an amended complaint on Jan. 13, 2022. In the amended complaint, the Plaintiffs allege they each purchased a vehicle online from Carvana, a national used car dealer incorporated in Georgia. As part of the transaction, they both agreed to pay, and did pay, inter alia, a $38 state registration fee, $16 license plate fee, and $55 state title fee. Despite paying these fees, the Plaintiffs claim that Carvana "failed to complete" the permanent registration of their vehicles. Instead, Carvana provided them with temporary license tags "without the legal right or authorization to do so." Specifically, Carvana gave Jennings six temporary license tags: two from the Arizona Department of Transportation, two from the Tennessee Department of Revenue, and one from the Commonwealth of Pennsylvania. Neither Arizona nor Tennessee had authorized Carvaa to issue these temporary registrations. Jennings allegedly relied upon Carvana's promise to properly register the vehicle in Pennsylvania, as her "trade-in of the prior vehicle and her payments on the purchased vehicle" demonstrate. As of the amended complaint's filing, however, Carvana still had not provided Jennings with a permanent registration. As to Furlong, Carvana first provided him with an Arizona temporary license tag. When that tag expired, it sent him a Tennessee temporary tag. Furlong, like Jennings, relied upon Carvana's promise to properly register the vehicle in Pennsylvania. Unlike its experience with Jennings, Carvana eventually provided Furlong with permanent registration in December 2021, approximately six months after he purchased his vehicle. Both Plaintiffs allege actual damages amounting to $93 (including the $38 state registration fee, $16 license plate fee, and $55 state title fee) "for licensing and registration for the vehicles which Carvana failed to complete." They set forth claims for breach of contract and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P.S. Sections 201-1-10 ("UTPCPL"). The Plaintiffs seek to represent a class of individuals defined as: All persons in the United States east of the Mississippi River who entered into contracts with CARVANA to purchase vehicles since Nov. 5, 2019, and CARVANA agreed to provide car registration services with non-temporary and permanent vehicle registrations in the state of their residence. They also seek to represent a subclass of "all persons from the Commonwealth of Pennsylvania who are members of the Nationwide Class." In response to the amended complaint, Carvana filed the instant motion to compel arbitration and, in the alternative, a motion to dismiss on Jan. 28, 2022. Regarding the motion to compel arbitration, the dealer contends that the respective RPAs include an arbitration provision that expressly incorporates an agreement to arbitrate the disputes at issue in this case. The purchasers counter that under the Pennsylvania Motor Vehicle Sales Finance Act ("MVSFA"), the retail installment sales contract ("RISC"), (which does not include an agreement to arbitrate) subsumes the retail purchase agreement and should govern the dispute. They argue that because the RISC makes no mention of an arbitration agreement, the court should deny the motion to compel arbitration. The Plaintiffs filed a response in opposition to the motion on Feb. 18, 2022. Carvana filed a reply brief on March 11, 2022. Shortly thereafter, on March 23, 2022, the Plaintiffs filed a sur-reply. On June 1, 2022, the Plaintiffs provided notice of supplemental authority, to which Carvana responded on June 3, 2022. The Court heard oral argument on the motion on June 7, 2022. Judge Smith explains that the Federal Arbitration Act ("FAA") provides as a matter of federal law that agreements to arbitrate disputes are enforceable to the same extent as other contracts. But the FAA provides no right to enforce an agreement to arbitrate, that may not be enforced under neutral principles of state contract law. Pennsylvania has a single-document rule applicable to the installment sales of motor vehicles that requires all agreements between buyers and sellers must be found in one document, the retail installment sales contract. As part of the transactions at issue, each Plaintiff executed a valid retail installment sales contract. The Defendant also had each Plaintiff sign an arbitration agreement which was incorporated into a third document, a retail purchase agreement ("RPA") but, inexplicably, failed to incorporate either the arbitration agreement or the RPA into the retail installment sales contract. Under Pennsylvania's single-document rule, the RPA and arbitration agreement are subsumed by the RISC and thus are not independently enforceable. The retail installment sales contracts at issue also specifically provide that the retail installment sales contract itself is the entire contract between the parties. The Defendant now asks the Court to bring to bear the preemption power of the FAA to compel arbitration despite the unenforceability of the arbitration agreement under state law. Notwithstanding the liberal federal policy favoring arbitration agreements, Judge Smith finds that federal preemption will not save the otherwise unenforceable arbitration agreements. After carefully considering the parties' arguments on the motion to compel arbitration, he agrees with the Plaintiffs that their dispute is not subject to compulsory arbitration because (1) the MVSFA requires "all the agreements between a buyer and an installment seller relating to the installment sale of the motor vehicle sold" to be included in the RISC; and (2) the RISC executed between the dealer and the Plaintiffs did not include an arbitration agreement nor did it incorporate the arbitration agreement by reference. In the alternative, the dealer argues that the Court should dismiss the amended complaint for failure to state a claim, but at this early stage of the litigation, the complaint is adequate to withstand the motion to dismiss. Count I of the Plaintiff's amended complaint alleges that the Defendant breached their contractual duties by failing to permanently license and register the vehicles despite collecting fees to do so. Further, the Plaintiffs allege that the Defendant improperly issued temporary plates, in violation of Arizona and Tennessee law, as well as their duty of good faith under contract. Under Pennsylvania law, to state a claim for breach of contract a plaintiff must plead (1) the existence of a contract, including its essential terms, (2) the defendant's breach of a duty imposed by those terms, and (3) actual loss or injury as a direct result of the breach. Count II of the Plaintiff's amended complaint alleges that the Defendant violated UTPCPL. To state a UTPCPL claim, a private plaintiff must allege (1) a deceptive act that is likely to deceive a consumer acting reasonably under the circumstances; (2) justifiable reliance; and (3) ascertainable loss caused by that justifiable reliance. In the Amended Complaint, the Plaintiff sufficiently alleges violations of both breach of contract and violations of the UTPCPL. For the foregoing reasons, the Defendant's Motion to Compel Arbitration and to Dismiss is denied. A full-text copy of the Court's Sept. 30, 2022 Memorandum Opinion is available at https://tinyurl.com/2petnrnt from Leagle.com. CELLULAR SALES: Court Grants Final Approval of Class Settlement --------------------------------------------------------------- In the class action lawsuit captioned as JAN P. HOLICK, JR., et al. v. CELLULAR SALES OF NEW YORK, LLC, and CELLULAR SALES OF KNOXVILLE, INC., Case No. 1:12-cv-00584-DJS (N.D.N.Y.), the Hon. Judge Daniel J. Stewart entered an order granting plaintiffs' motion for final approval of class settlement. This action was commenced alleging statutory and common law claims against the Defendants regarding the alleged failure to provide proper compensation to Plaintiffs. The statutory claims are brought pursuant to the federal Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). This action has an extensive and complicated procedural history, familiarity with which is assumed. The Plaintiffs Jan Holick, Steven Moffitt, Justin Moffitt, Gurwinder Singh, Jason Mack, William Burrell, and Timothy Pratt filed a collective and class action complaint against Cellular Sales of New York and Cellular Sales of Knoxville, Inc., asserting claims for alleged violations of FLSA and NYLL minimum wage and overtime requirements. A copy of the Court's order dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3Mmpl3T at no extra charge.[CC] CHR CORPORATION: Seeks Leave to File Sur-Reply to Class Cert Bid ---------------------------------------------------------------- In the class action lawsuit re Rutter's Inc. Data Security Breach Litigation, Case No. 1:20-cv-00382-CCC-KM (M.D. Pa.), the Defendant CHR Corporation seeks permission from the Court pursuant to Local Rule 7.7 to file a sur-reply brief to Plaintiff's reply in further support of his motion for class certification. In the reply brief, the Plaintiff relied on a Third Circuit decision released after the filing of Defendant's opposition brief that relates to standing in a data security class action and includes a citation to this Court's motion to dismiss decision. CHR Corporation, doing business Rutter's Farm Stores, provides dairy products. A copy of the Defendant's motion dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3EyyswO at no extra charge.[CC] The Defendant is represented by Carrie Dettmer Slye, Esq. Paul G. Karlsgodt, Esq. Tyson Y. Herrold, Esq. BAKER & HOSTETLER LLP 312 Walnut Street, Suite 3200 Cincinnati, OH 45202-4074 Telephone: (513) 929-3400 Facsimile: (513) 929-0303 E-mail: cdettmerslye@bakerlaw.com pkarlsgodt@bakerlaw.com therrold@bakerlaw.com CIRCA 1886: Must Respond to Conditional Class Cert Bid by Oct. 26 ----------------------------------------------------------------- In the class action lawsuit captioned as Littlefd v. Circa 1886, LLC, et al., Case No. 2:22-cv-02716 (D.S.C.), the Hon. Judge Bruce Howe Hendricks entered an order on motion for extension of time Defendants' response to Plaintiff's motion for conditional class certification and to authorize notice to putative class members is due by October 26, 2022. The nature of suit states Fair Labor Standards Act and Equal Pay Act.[CC] CV SCIENCES: Court Sets Nov. 14 Settlement Fairness Hearing ----------------------------------------------------------- DISTRICT COURT CLARK COUNTY, NEVADA GIRARD DEPOTI, Derivatively on Behalf of CV SCIENCES, INC., Plaintiff, vs. JOSEPH DOWLING, MICHAEL J. MONA, JR., MICHAEL J. MONA, III, GARY R. SLIGAR, and JAMES A. MCNULTY, Defendants, – and – CV SCIENCES, INC., Nominal Party. Case No. A-18-782513-C NOTICE OF PROPOSED SETTLEMENT TO: ALL CURRENT RECORD SHAREHOLDERS AND THE BENEFICIAL OWNERS OF THE COMMON STOCK OF CV SCIENCES, INC. ("CV SCIENCES" OR THE "COMPANY") AS OF JULY 28, 2022 (THE "RECORD DATE") ("CURRENT CV SCIENCES SHAREHOLDERS") PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. THIS NOTICE RELATES TO A PROPOSED SETTLEMENT AND DISMISSAL OF THE ABOVE-CAPTIONED CONSOLIDATED SHAREHOLDER DERIVATIVE ACTION (THE "ACTION") BY ENTRY OF THE JUDGMENT BY THE COURT AND CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS. YOUR RIGHTS MAY BE AFFECTED BY THESE LEGAL PROCEEDINGS. IF THE COURT APPROVES THE SETTLEMENT, YOU WILL BE FOREVER BARRED FROM CONTESTING THE APPROVAL OF THE PROPOSED SETTLEMENT AND FROM PURSUING THE RELEASED CLAIMS. IF YOU HOLD CV SCIENCES COMMON STOCK FOR THE BENEFIT OF ANOTHER, PLEASE PROMPTLY TRANSMIT THIS DOCUMENT TO SUCH BENEFICIAL OWNER. THE RECITATION OF THE BACKGROUND AND CIRCUMSTANCES OF THE SETTLEMENT CONTAINED HEREIN DOES NOT CONSTITUTE THE FINDINGS OF THE COURT. IT IS BASED ON REPRESENTATIONS MADE TO THE COURT BY COUNSEL FOR THE PARTIES. Notice is hereby provided to you of the proposed settlement (the "Settlement") of the abovereferenced shareholder derivative lawsuit as well as related suits. This Notice is provided by Order of the District Court of Clark County, Nevada (the "Court"). It is not an expression of any opinion by the Court. It is to notify you of the terms of the proposed Settlement, and your rights related thereto. WHY THE COMPANY HAS ISSUED THIS NOTICE Your rights may be affected by the Settlement of the following actions: * Depoti v. Dowiling, et al, Case No. A-18-782513-C (Nev. Dist. Ct.-Clark Cty.) * Radcliffe v. Dowling, et al., Case No. A-19-794377-B (Nev. Dist. Ct.-Clark Cty.) * Tarangelo v. Mona, Jr., et al., Case No. A-19-789153-B (Nev. Dist. Ct.-Clark Cty.) * Francis v. Mona, Jr., et al., Case No. 2:18-cv-02284-GMN-NJK (D. Nev.) * Berry v. Dowling, et al., Case No. 3:20-CV-01072-AJB-DEB (S.D. Cal.) * Menna v. Dowling, et al., Case No. 37-2021 -00019613-CU-SL-CTL (San Diego Sup. Ct.) Plaintiffs in these actions (the "Derivative Actions") Girard Depoti, Richard Tarangelo, John Radcliffe, David Francis, David Menna, and Phillip Berry (on behalf of themselves and derivatively on behalf of CV Sciences) (collectively "Plaintiffs"), individual defendants Joseph Dowling, Michael J. Mona, Jr., Michael J. Mona III, Gary R. Sligar, James A. McNulty, Stephen M. Schmitz, Bart P. Mackay, Larry Raskin, Edward A. Wilson, Beth Altman, Paul Blake, Terri Funk Graham, and Joseph Maroon ("Individual Defendants") and nominal defendant CV Sciences have agreed upon terms to settle the Action and have signed a written Stipulation of Settlement ("Stipulation") setting forth those settlement terms. Together, the Individual Defendants and nominal defendant CV Sciences are referred to as "Defendants." On November 14, 2022, at 1:30 p.m, Courtroom 16C, 200 Lewis Ave., Las Vegas, Nevada 89011, the Court will hold a hearing (the "Settlement Hearing") in the Action. The purpose of the Settlement Hearing is to determine, pursuant to Nevada Rule of Civil Procedure 23.1: (i) whether the terms of the Settlement are fair, reasonable, and adequate and should be approved; (ii) whether a final judgment should be entered; (iii) the amount of attorneys' fees and expenses to be awarded; and (iv) such other matters as may be necessary or proper under the circumstances. SUMMARY OF THE ACTION Description of the Derivative Actions and Settlement Plaintiffs, on behalf of CV Sciences, brought the respective Derivative Actions purportedly to remedy, among other things, alleged breaches of fiduciary duty against current and former directors and officers of CV Sciences. According to its public filings, CV Sciences has two business divisions: pharmaceuticals and consumer products. The pharmaceutical division develops "synthetically-formulated cannabidiolbased medicine," while the consumer products division "delivers botanical-based cannabidiol products that enhance quality of life." The Company's chief pharmaceutical product is or was at the relevant times identified as CVSI-007, a chewing gum product that combines cannabidiol and nicotine in treatment of smokeless tobacco use and addiction. The Company described CVSI-007 as its "lead drug candidate" with a market that has been estimated at "greater than $2 billion." The Derivative Actions allege that on May 16, 2016, certain of the Individual Defendants caused the Company to file a patent application with the US Patent Trademark Office ("USPTO") for CVSI-007, titled "Pharmaceutical Formulations Containing Cannabidiol and Nicotine For Treating Smokeless Tobacco Addiction." On February 7, 2017, the Individual Defendants caused the Company to file a continuing patent application under the same title, Patent #15/426,617 (the "Patent Application"). On April 27, 2017, the USPTO issued a non-final rejection on the Company's Patent Application and mailed CVSI a letter regarding the non-final rejection of the Patent Application on June 6, 2017. All of the Derivative Actions allege that on December 14, 2017, the USPTO issued a "final" rejection on the Company's Patent Application and mailed CVSI a letter regarding the final rejection of the Patent Application on December 20, 2017. On August 20, 2018, Citron Research published a tweet alleging that the Individual Defendants failed to disclose the December 14, 2017 "final" rejection of the Patent Application. The Derivative Actions allege that upon publication of the tweet, CV Sciences stock "plunged" over 63%, from $9.20 to $3.40. The Derivative Actions were filed between October 2018 and October 2020. PLAINTIFFS' COUNSEL'S ATTORNEYS' FEES AND EXPENSES After negotiating the principal terms of the Settlement, counsel for the Settling Parties, and the insurer, acting by and through their counsel, separately negotiated the attorneys' fees and expenses that the Individual Defendants would pay or cause to be paid to Plaintiffs' Counsel based on the substantial benefits conferred upon the Company by the Reforms. In consideration of the substantial benefits conferred upon the Company as a direct result of the Settlement and the efforts of Plaintiffs and Plaintiffs' Counsel in the Derivative Matters, the Individual Defendants shall pay or cause to be paid two hundred seventy-five thousand dollars ($275,000.00) to Plaintiffs' Counsel for their attorneys' fees and costs (the "Fee and Expense Award"), subject to Court approval. Additionally, Plaintiffs may apply to the Court for service awards not to exceed $1,000 per Plaintiff ("Service Awards"), to be paid out of such Fee and Expense Amount awarded by the Court. RIGHT TO OBJECT TO THE SETTLEMENT AND PROCEDURES FOR DOING SO You have the right to object to any aspect of the Settlement. You must object in writing, and you may request to be heard at the Settlement Hearing. If you choose to object, then you must follow these procedures. A. You Must Make Detailed Objections in Writing Any objections must be presented in writing and must contain the following information: 1. Your name, legal address, and telephone number; 2. The number of shares of CV Sciences stock you currently hold, together with thirdparty documentary evidence, such as the most recent account statement, showing such share ownership; and Proof of being a current CV Sciences shareholder as of July 28, 2022; and 3. A detailed statement of your objections to any matter before the Court and all grounds therefore, including any supporting documents to be considered by the Court. B. You Must Timely File Written Objections with the Court and Deliver to Counsel for Plaintiffs and the Defendants YOUR WRITTEN OBJECTIONS MUST BE ON FILE WITH THE CLERK OF THE COURT NO LATER THAN October 31, 2022. The Court Clerk's address is: CLERK OF COURT Regional Justice Center 200 Lewis Ave Las Vegas, Nevada 89011 YOU ALSO MUST DELIVER COPIES OF THE MATERIALS TO COUNSEL FOR PLAINTIFFS AND THE DEFENDANTS SO THEY ARE RECEIVED NO LATER THAN October 31, 2022. Counsel's addresses are: Counsel for Plaintiff: John P. Aldrich ALDRICH LAW FIRM, LTD. 1601 S. Rainbow Blvd., Suite 160 Las Vegas, Nevada 89146 Counsel for Defendants: Jeffery A. Garofalo PROCOPIO, CORY, HARGRAVES & SAVITCH, LLP 10000 W. Charleston Blvd., Suite 140 Las Vegas, Nevada 89135 PLEASE DO NOT CALL, WRITE, OR OTHERWISE DIRECT QUESTIONS TO EITHER THE COURT OR THE CLERK'S OFFICE. DATED: September 21, 2022 BY ORDER OF THE DISTRICT COURT OF CLARK COUNTY, NEVADA DAVID RANDALL: Court Grants Bid to Certify Class in Nationwide Suit ------------------------------------------------------------------- In the case, NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff v. DAVID RANDALL ASSOCIATES, INC., et al., Defendants, Civil Action No. 20-4972-JMY (E.D. Pa.), Judge John Milton Younge of the U.S. District Court for the Eastern District of Pennsylvania enters a Memorandum: 1. denying City Select Auto Sales, Inc.'s Motion to Dismiss for Lack of Jurisdiction or to Stay; 2. granting the Nationwide's Motion to Certify Class; 3. granting the Nationwide's Motion for Summary Judgment; and 4. denying City Select's Motion for Summary Judgment. On Oct. 7, 2020, Nationwide, an insurance provider, filed this declaratory judgment class action against the Defendants -- City Select and: All persons who were successfully sent one or more faxes during the period March 29, 2006, through May 16, 2006, stating, ROOF LEAKS??? REPAIRS AVAILABLE. Just give us a call and let our professional service technicians make the repairs! and CALL: David/Randall Associates, Inc. TODAY (collectively, the Class). Though David Randall Associates, Inc. ("DRA"), the insurance policyholder, is listed in the caption of the case and had sent the aforementioned faxes, DRA is now believed to be defunct and has only been named as a potentially interested party in the action. For context, this is not the first time that the Plaintiff has sought declaratory relief in the Eastern District of Pennsylvania. On Jan. 24, 2013, the Plaintiff brought a civil action against DRA, seeking a declaration that it did not have a duty -- under the insurance policy's "property damage" provisions -- to defend or indemnify DRA for transmitting thousands of unsolicited faxes in violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. Section 227 (the "TCPA") -- Nationwide Mut. Ins. Co. v. David Randall Assocs., Inc., No. 12-CV-4208, 2013 WL 271816 (E.D. Pa. Jan. 24, 2013), aff'd, 551 F. App'x 638 (3d Cir. 2014). Though arguments for insurance coverage for TCPA violations could have theoretically been made under both the Policy's "property damage" and "personal and advertising injury" provisions, the Plaintiff and DRA "agreed that no coverage existed under other provisions of the Policy which govern advertising injury and personal injury." Thus, in granting Nationwide's motion for summary judgment, the Eastern District declared that the "property damage" provisions did not impose upon Nationwide a duty to defend or indemnify DRA. On Jan. 9, 2014, the Third Circuit affirmed this decision. As a recipient of DRA's unsolicited faxes, City Select filed (and would later become the representative of) a class action lawsuit against DRA for violating the TCPA. On March 27, 2015, the U.S. District Court for the District of New Jersey entered a judgment in favor of City Select and against DRA for $22,405,000 -- whereby each one of the 44,810 identified violations (i.e., the sending of an unsolicited fax) incurred a $500 penalty -- City Select Auto Sales, Inc. v. David/Randall Assocs., Inc., 96 F.Supp.3d 403, 422, 428 (D.N.J. 2015). Although the Eastern District litigation involved the question of whether the Policy's "property damage" provisions were a source of insurance coverage for damages caused by DRA's numerous violations of the TPCA, there is no dispute that the controversy involved the very same facts as were involved in the New Jersey litigation. Thereafter, in a brazen attempt to find a source of funding to secure its judgment in the New Jersey action, City Select launched what could only be characterized as a collateral attack on the Eastern District decision. Deciding not to turn to the Eastern District to seek reconsideration of its prior determination, it instead, on Feb. 28, 2020, filed a declaratory judgment action against the Plaintiff, in an Ohio state court, seeking a declaration that it is obligated, pursuant to the same insurance policy at issue in the Eastern District litigation, to indemnify DRA pursuant to the Policy's "personal and advertising injury" provisions. Though both the Eastern District and the Third Circuit have thoughtfully considered the Plaintiff and DRA's arguments regarding the scope of the Policy's coverage as it relates to TCPA violations, City Select seeks to exploit the good-faith concession made by the Plaintiff and DRA that seemingly dissuaded the Eastern District from even analyzing the "personal and advertising injury" provisions. However, perhaps even more surprising and jarring, it attempts to place itself in the shoes of DRA, the actual policyholder, and to proffer what DRA reasonably expected, knew, or understood about the "personal and advertising injury" provisions during the policy renewal process -- almost as if DRA did not have the opportunity in the 2013 Eastern District litigation to raise (instead of conceding) these very arguments. As of now, the Plaintiff has filed a motion to certify the Class and a motion for summary judgment, seeking another declaration -- this time, under the "personal and advertising injury" provisions -- that it still does not have an obligation to indemnify DRA (or the fax recipients more broadly) in connection with the $22,405,000 judgment secured by Defendant City Select against DRA. In response, City Select argues that the Court does not have jurisdiction under the anti-aggregation principle or, in the alternative, that it should stay this litigation in light of the February 2020 Ohio action; though, that action has been stayed by the Court of Common Pleas of Franklin County, Ohio -- until Sept. 30, 2022 -- in order to gauge this Court's determination on the Plaintiff's jurisdictional arguments. Additionally, City Select has filed a motion for summary judgment, seeking a declaration that the Plaintiff is obligated to indemnify DRA under the "personal and advertising injury" provisions. As a threshold matter, City Select challenges the Court's jurisdiction over the declaratory judgment action -- as each individual claim or violation is only worth $500. Thus, the anti-aggregation rule would be violated as distinct claims of individual members of the Class would be aggregated to reach the $75,000 amount-in-controversy requirement for purposes of diversity jurisdiction. With the amount-in-controversy not running afoul of the anti-aggregation rule and totaling well over $75,000, and with the Plaintiff being a citizen of Ohio, City Select being a citizen of New Jersey, and DRA being a citizen of Pennsylvania, Judge Younge holds that the Court has the requisite diversity jurisdiction to preside over the action. Judge Young now addresses the Plaintiff's motion to certify the Class. After all, clarity on the full scope of the Defendants will be of great consequence for the declaratory relief that has been sought by and that will ultimately be granted to the Plaintiff. The Class encompasses: All persons or entities, with whom David Randall Associates did not have an established business relationship, who were successfully sent one or more unsolicited faxes during the period March 29, 2006, through May 16, 2006, stating, ROOF LEAKS??? REPAIRS AVAILABLE Just give us a call and let our professional service technicians make the repairs! and CALL David/Randall Associates, Inc. TODAY. Pursuant to Federal Rule of Civil Procedure 23(a), a class may be certified if the following four prerequisites are met: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Judge Younge determines that under prerequisite (1), the identification of 44,810 TCPA violations shows that any attempt to join all members would likely be impracticable. Under prerequisite (2), one common question of law that connects the Class is whether the "property and advertising injury" provisions extend to TCPA violations, which would be outcome-determinative in assessing whether Plaintiff is obligated to indemnify DRA. Under prerequisite (3), members of the Class (including its representative, Defendant City Select) all have the same claim and shared interest in DRA having coverage under the Policy. Relatedly, each member of the Class would likely proffer the same or nearly identical legal theories in the case -- whereby they could then recoup damages to cover as much of the $500 penalty that they are entitled to under the TCPA. Finally, under prerequisite (4), by keeping the Class identical to the class that had been certified in the previous action (i.e., the action where Defendant City Select secured the $22,405,000 judgment), it would ensure that everyone's interests are fairly protected in this current action -- —especially where there is the potential to obtain a declaration that Plaintiff has an obligation to indemnify DRA for its TCPA violations. Further, Federal Rule of Civil Procedure 23(b)(2) permits a class to be formed where declaratory relief would be appropriate for the class as a whole. In addition to satisfying the four prerequisites -- as outlined in Rule 23(a) -- and finding that declaratory relief would be appropriate for the class as a whole -- as contemplated under Rule 23(b)(2) -- it is also worth noting that City Select "does not oppose Nationwide's motion to recertify the class for the purpose of adjudicating the class' coverage claims." However, City Select only asks that the same counsel be certified in this matter. Judge Younge permits City Select's request to maintain the same counsel for the Class. As to the Plaintiff's Motion for Summary Judgment, the central issue is whether the Policy's "personal and advertising injury" provisions impose an obligation upon the Plaintiff to indemnify DRA for TCPA violations resulting in a $22,405,000 judgment secured by City Select against DRA. Judge Young finds that the Third Circuit and the Pennsylvania Superior Court's bar on "advertising injury" coverage for TCPA violations suggests that the "personal and advertising injury" provisions within the Policy in this case do not cover DRA's TCPA violations. Alternatively, even if the "personal and advertising injury" provisions had theoretically covered DRA's TCPA violations, the presence of the exclusion within the Policy should have placed a sophisticated, commercial party (and its broker) on notice regarding policy language that indicated a reduction in or change to coverage. However, such an inquiry into the understandings and expectations of DRA -- the actual policyholder and insured party -- is futile, as DRA never proffered these arguments in similar litigation involving this very same Policy and these very same provisions. For the foregoing reasons, Nationwide's motion for summary judgment is granted. Because Judge Younge grants the Plaintiff's motion for summary judgment, by extension, City Select's motion for summary judgment is denied. The denial of City Select's motion is based on the Third Circuit and Pennsylvania Superior Court's determination that "advertising injury" and subsection (e) do not apply to TCPA violations and the presence of a waiver within the Policy excluding coverage for TCPA violations. These precedents and the policy exclusion demonstrate that there is no genuine issue of material fact and that the Plaintiff's motion for summary judgment can and must be granted as a matter of law. For the reasons he stated, Judge Younge grants Nationwide's Motion to Certify Class and Motion for Summary Judgment; and denies City Select's Motion to Dismiss for Lack of Jurisdiction or to Stay and Motion for Summary Judgment. A full-text copy of the Court's Sept. 30, 2022 Memorandum is available at https://tinyurl.com/22v8xzf3 from Leagle.com. DEL TORO: Court Modifies Class Cert. Bid Deadlines in Beasley ------------------------------------------------------------- In the class action lawsuit captioned as BEASLEY, et al., v. DEL TORO et al., Case No. 1:22-cv-00667 (D. Colo.), the Hon. Judge Christopher R. Cooper entered an order granting motion to modify deadlines as follows: -- The Plaintiffs shall file their November 4, 2022 motion for class certification by: -- The Defendants shall file their December 5, 2022 opposition to Plaintiffs' class certification motion by: -- The Plaintiffs shall file any December 19, 2022 reply in support of their class certification motion by: The Court further enter an order that: -- the Defendants shall file their cross-motion for summary judgment and opposition to Plaintiffs' motion for summary judgment within 45 days after Plaintiffs' motion for summary judgment; -- the Plaintiffs shall file their reply in support of their motion for summary judgment and opposition to Defendants cross-motion within 30 days after Defendants' cross-motion for summary judgment; and the remaining summary judgment deadlines from the Court's June 3, 2022 Minute Order are unchanged. The nature of suit states Other Statutory Actions involving Judicial Review of Agency Decision.[CC] DOLLAR BANK: Court Narrows Claims in Columbian Spot Class Suit -------------------------------------------------------------- In the case, THE COLUMBIAN SPOT, LLC, and KITTY JOHNSON, individually and on behalf of all others similarly situated, Plaintiffs v. DOLLAR BANK, Defendant, Civil Action No. 21-1171 (W.D. Pa.), Judge Cathy Bissoon of the U.S. District Court for the Western District of Pennsylvania grants in part and denies in part the Defendant's Motion to Dismiss the Amended Complaint. Columbian Spot is a Pennsylvania limited liability company that had a Dollar Bank checking account during the class period. It is located in Pittsburgh, Pennsylvania, and its managing member is a citizen of Pittsburgh, Pennsylvania. Johnson is a citizen of Pennsylvania who had a checking account with Dollar Bank during the class period. Dollar Bank is a Federal Savings Bank and holds more than $10 billion in assets. It is headquartered in Pittsburgh, Pennsylvania and has branches in Ohio, Pennsylvania and Virginia. Jurisdiction is based on the Class Action Fairness Act of 2005, 28 U.S.C. Sections 1332(d)(2) & (6). 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. The Plaintiffs, and all members of the proposed Classes, contracted with Dollar Bank for checking account services, including debit card services. Examples of the challenged conduct include: unlawfully assessing two or more fees (Multiple Fees), including overdraft fees (OD Fees) and non-sufficient funds fees (NSF Fees), on a single Automated Clearing House (ACH) transaction debit or check; using a lesser balance than the money in the customer's account to determine when to assess an overdraft fee; setting aside money for a particular debit card transaction, and, although that money is then not counted by Dollar Bank towards other transactions, it nonetheless can result in overdraft fees; rejecting an item for which there supposedly was not enough money to cover a transaction, charging an NSF Fee for the rejected item, and nonetheless pretending the money in the account has been reduced by the amount of the transaction until the next day, when it is then credited to the account; and failing to comply with Regulation E (12 C.F.R. Section 1005.17) before being allowed to charge any overdraft fees at all on certain transactions. The Complaint asserts that these practices breach contractual promises made in Dollar Bank's "adhesion contracts," breach the covenant of good faith and fair dealing implicit in those contracts, and violate Pennsylvania consumer protection laws. It contains three counts arising out of the charged conduct. Count 1 asserts breach of contract, including the covenant of good faith and fair dealing. Count 2 asserts a violation of the Electronic Fund Transfers Act (Regulation E). Count 3 asserts a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"). In the instant Motion, Dollar Bank seeks dismissal of the Complaint in its entirety for failure to state a claim upon which relief can be granted. Count 1 of the Complaint asserts that Dollar Bank breached promises made to Plaintiffs and all members of the proposed class when, as described more fully in the Complaint, Dollar Bank charged: (a) Multiple Fees on a single ACH debit or check; (b) OD Fees and NSF Fees on items that did not overdraw their checking account; (c) OD Fees on APPSN Transactions; and (d) NSF Fees and OD Fees due to false deductions from the account balance for items returned for insufficient funds. Dollar Bank moves to dismiss the breach of contract claim, arguing that it charged fees in accordance with the unambiguous terms of the relevant Account Documents and did not otherwise breach any contractual terms. After careful review of the Complaint, the relevant Account Documents of record, the parties' submissions (including all supplemental authority), and the great weight of persuasive authority permitting similar lawsuits across the country to proceed to discovery, Judge Bissoon agrees with the Plaintiffs that the Account Documents at issue contain sufficient ambiguities to render dismissal of the breach of contract claim inappropriate at this early stage of the proceedings. Count 1 also asserts liability based on a breach of the implied covenant of good faith and fair dealing, averring, inter alia, that Dollar Bank should not have used its discretion to charge (a) multiple Fees on a single ACH debit or check OD Fees on APPSN Transactions; (b) OD Fees and NSF Fees on items that did not overdraw their checking account; (c) OD Fees on APPSN Transactions; and (d) NSF Fees and OD Fees caused by false deductions from the account balance for items returned for insufficient funds. The Plaintiffs contend that the relevant Account Documents do not permit OD Fees or NSF Fees on such transactions, and the contract is otherwise ambiguous as to any right for Dollar Bank to charge such fees. Dollar Bank responds that the good faith and fair dealing claim is not independently actionable, and, thus, like the breach of contract claim, must be dismissed. As set forth, however, the Plaintiffs' breach of contract claim has not failed. Accordingly, Dollar Bank's reasoning does not apply, and its motion to dismiss the good faith and fair dealing claim is denied. For all of these reasons, Dollar Bank's Motion to Dismiss Count 1 is denied. Count 2 of the Complaint asserts that the charges violate the "Opt In Rule" of Regulation E, 12 C.F.R. Section 1005.17, which requires financial institutions to obtain a customer's "affirmative consent" before charging overdraft fees on ATM or one-time debit card transactions. The Plaintiffs contend that Dollar Bank's opt-in method fails to satisfy Regulation E because it does not adequately convey how overdraft fees are assessed. Dollar Bank asserts that the EFTA's "safe-harbor provision," 15 U.S.C. Section 1693m(d), shields it from liability because its Opt-In Form is a "near verbatim copy" of the EFTA's Model Form A-9. After careful consideration, however, Judge Bissoon agrees with the wealth of courts across the United States that have addressed and rejected this same approach. Accepting the Plaintiffs' allegations as true, she finds that the Complaint plausibly pleads a Regulation E violation, and the Motion to Dismiss Count 2 is denied. The Plaintiffs concede that, at this juncture, they lack sufficient information to plead a proper UTPCPL claim. Because the Complaint admittedly fails to allege all of the elements required to state a UTPCPL claim, Dollar Bank's Motion to Dismiss Count 3 is granted. The UTPCPL claim is dismissed without prejudice. For these reasons, Judge Bissoon grants in part and denies in part the Motion to Dismiss. The Motion to Dismiss Count 3 is granted, and 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. A full-text copy of the Court's Sept. 30, 2022 Memorandum Order is available at https://tinyurl.com/45wphcja from Leagle.com. DONALD J TRUMP FOR PRESIDENT: Denson Files Class Certification Bid ------------------------------------------------------------------ In the class action lawsuit captioned as JESSICA DENSON, Individually and on Behalf of All Others Similarly Situated, v. DONALD J. TRUMP FOR PRESIDENT, INC., Case No. 1:20-cv-04737-PGG (S.D.N.Y.), the Lead Plaintiff Jessica Denson moves the Court granting class certification bid pursuant to Federal Rule of Civil Procedure 23. A copy of the Plaintiff's motion dated Oct. 6, 2022 is available from PacerMonitor.com at https://bit.ly/3EzpUFP at no extra charge.[CC] The Plaintiff is represented by: David A. Schulz, Esq. Joseph Slaughter, Esq. BALLARD SPAHR LLP 1675 Broadway, 19th Floor New York, NY 10019 Telephone: (212) 850-6103 Facsimile: (212) 223-1942 E-mail: schulzd@ballardspahr.com slaughterj@ballardspahr.com - and - David K. Bowles, Esq. BOWLES & JOHNSON PLLC 14 Wall Street, 20th Floor New York, New York 10005 Telephone: (212) 390-8842 Facsimile: (866) 844-8305 E-mail: David@BoJo.Law - and - John Langford, Esq. Brittany Williams, Esq. Anne Tindall, Esq. UNITED TO PROTECT DEMOCRACY 555 W. 5th St. Los Angeles, CA 90013 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 E-mail: john.langford@protectdemocracy.org brittany.williams@protectdemocracy.org anne.tindall@protectdemocracy.org EMPRESS AMBULANCE: Fails to Protect Data Breach, Normand Alleges ---------------------------------------------------------------- KARLI NORMAND, individually and on behalf of all others similarly situated, Plaintiff v. EMPRESS AMBULANCE SERVICES, INC., d/b/a EMPRESS EMS, Defendant, Case No. 7:22-cv-08590 (S.D.N.Y., Oct. 09, 2022) is an action alleges that the Defendant failed to implement and maintain reasonable safeguards and failed to comply with industry-standard data security practices. According to the complaint, the Plaintiff and other customers provided Empress with their Personal Health Information ("PHI") and personal identifiable information ("PII") in connection with receiving health care services from Empress. Unfortunately for the Plaintiff, Empress did not adequately safeguard that PII/PHI. As a result, the Plaintiff and hundreds of thousands of Empress' other customers ("Customers") are now the victims of a large-scale data breach that will impact them for years to come (the "Data Breach"), says the suit. Specifically, the Data Breach allegedly exposed Plaintiff's and Class members' (1) name, (2) Social Security number, (3) dates of service, and (4) the name of her insurer on file with Empress. EMPRESS AMBULANCE SERVICE, INC. provides ambulance services. The Company offers emergency medical response, life support transport, paramedic flycar systems, and event standbys services. [BN] The Plaintiff is represented by: Jason H. Alperstein, Esq. Jonathan M. Streisfeld, Esq. Kristen Cardoso, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT 1 W. Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 Facsimile: (954) 525-4300 Email: alperstein@kolawyers.com streisfeld@kolawyers.com cardoso@kolawyers.com EQUIFAX INC: Claims Administrator Provides Update on Settlement --------------------------------------------------------------- Christopher Zara, writing for Fast Company, reports that victims of the massive Equifax breach that rocked the consumer credit-scoring industry five years ago are finally beginning to receive updates about their forthcoming settlement payments. In emails sent to consumers, the claims administrator overseeing the class-action settlement notified recipients of their eligibility and let them know about their payment options. If you received one of these emails recently, here's what to know: TELL ME AGAIN WHAT THE HECK HAPPENED Way back in 2017, Equifax, one of the three major credit bureaus, revealed a substantial data breach. The personal information of an estimated 147 million consumers was exposed, some of it super sensitive. The U.S. Federal Trade Commission (FTC), the Consumer Financial Protection Bureau (CFPB), and individual states responded with a class-action lawsuit, which was settled in 2019. Equifax agreed to pay up to $425 million "to help people affected by the breach." THAT'S A LOT OF MONEY? HOW MUCH WILL I GET? Here's where it gets a little less exciting. Individual cash payments were capped at $125 each, but because of the large number of people who applied for claims, what you actually get is likely to be significantly less. ARE THESE RECENT EMAILS LEGIT? According to the FTC, if your email comes from info@equifaxbreachsettlement.com, it's the real thing. We've reached out to JND, the company overseeing the settlement claims, to confirm further details about the emails' contents. We'll update this post with additional information if we hear back. Not surprisingly, many recipients of the emails are expressing skepticism about their legitimacy. Discussions about the emails on Reddit forums and Twitter are rife with speculation about whether the emails are a scam. It's likely that some recipients filed to receive a claim so long ago that they just plain forgot about it. ALL OF THIS MAKES ME FEEL GROSS. CAN I JUST OPT OUT OF EQUIFAX? Ironically, no. Although credit bureaus collect and share sensitive data on millions of people, they mostly do it without your permission. Rather, they get your information from banks, loan issuers, public databases, and other sources of information. (You can learn more about the process here.) About the best you can do is put a freeze on your credit, which can prevent fraudsters from opening new accounts in your name. SO I'M A LIFELONG EQUIFAX CUSTOMER WHETHER I WANT TO BE OR NOT? No, you're the product. FINE. WHEN IS MY PAYMENT COMING? Unfortunately, that's still a bit unclear, too. According to the FTC, the settlement was finalized in January of this year, but its latest update in September did not include an estimated timeline for payments. We've asked JND for clarity on this and will update this post if we hear back. [GN] ETHOS-CALIFORNIA VETERINARY: Lopez Files Suit in Cal. Super. Ct. ---------------------------------------------------------------- A class action lawsuit has been filed against Ethos-California Veterinary Group, Inc., et al. The case is styled as Jessica Lopez, Charone Deshazier, on behalf of all persons similarly situated v. Ethos-California Veterinary Group, Inc., Ethos Veterinary Health LLC, Does 1-50, Case No. 34-2022-00327993-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Oct. 6, 2022). The case type is stated as "Other Employment – Civil Unlimited." Ethos -- https://www.ethosvet.com/ -- is a veterinary health organization with hospitals across the U.S. providing advanced medical care for pets.[BN] The Plaintiffs are represented by: Norman Blumenthal, Esq. BLUMENTHAL, NORDREHAUG & BHOWMIK 2255 Calle Clara La Jolla, CA 92037-3107 Phone: 858-551-1223 Fax: 858-551-1232 Email: norm@bamlawca.com FINCH COMPANY: Taylor Files TCPA Suit in N.D. Ohio -------------------------------------------------- A class action lawsuit has been filed against The Finch Company. The case is styled as Robert Taylor, individually and on behalf of all others similarly situated v. The Finch Company doing business as: Xhibition, Case No. 1:22-cv-01794-BMB (N.D. Ohio, Oct. 6, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act. FINCH -- https://finchcompany.com/ -- is a film production company. The company make documentaries, live experiences, TV commercials, feature films and digital content.[BN] The Plaintiff is represented by: Andrew Shamis, Esq. SHAMIS & GENTILE, PA 14 NE 1st Ave., Suite 705 Miami, FL 33132 Phone: (404) 797-9696 Fax: (786) 623-0915 Email: ashamis@shamisgentile.com FITNESS EQUIPMENT: $3.65MM Class Deal in Bechtel Suit Wins Final OK ------------------------------------------------------------------- In the case, LAURA BECHTEL, et al., Plaintiffs v. FITNESS EQUIPMENT SERVICES, LLC, Defendant, Case No. 1:19-cv-726 (S.D. Ohio), Magistrate Judge Karen L. Litkovitz of the U.S. District Court for the Southern District of Ohio, Western Division, grants the Plaintiffs' unopposed motion for final approval of a class action settlement and their unopposed motion for attorney fees, expenses, and class representatives' service awards. The Plaintiffs specifically request: 1) final approval of the class action settlement; 2) attorney fees and expenses; and 3) service awards for the class representatives, as detailed in the Jan. 24, 2022 class action settlement agreement and release entered into with Defendant Fitness, dba Sole Fitness. After granting preliminary approval of the class action settlement, the Court conducted a fairness hearing on Sept. 21, 2022. At the fairness hearing, it heard arguments from all interested parties, including the objector present. Attorney Jason Winter, a potential Class member, filed and orally presented a thorough and well-reasoned objection to the proposed Class action settlement. He initially raised four bases for objection. At the fairness hearing, Winter withdrew two of his four concerns, after receiving additional information and documentation from the class counsel. The remaining two issues involve the adequacy of the common fund and the inclusion of a $100 Sole gift card as part of Class compensation. With regard to the common fund's adequacy to address the Class members' actual damages, Winter correctly noted that each Class member will likely receive between $30 and $35 in damages from the common fund, even though the treadmills Class members purchased range in price from approximately $1,000 to $2,800. Judge Litkovitz overrules this objection for three reasons. First, the class members retain exclusive possession of their purchased treadmills, and there is no allegation that those treadmills fail to perform as required. Second, the meaningful recovery of $30 to $35 per treadmill at this early juncture represents reasonable compensation consistent with the risks and expenses associated with this type of litigation. Third, the counsel for both sides explained the difficulties class counsel experienced in obtaining the $3.65 million common fund, and no objector offered evidence or authority from other cases to support their claim that the common fund is inadequate. As to the inclusion of a $100 Sole gift card as part of Class compensation, this objection, too, is overruled. As the counsel explained at the fairness hearing, the $100 gift cards are completely transferable. Therefore, if the Class members do not wish to purchase another item from Sole, they are free to sell the gift cards in secondary markets to anyone who would like to purchase them. In addition, the $100 gift cards are supplemental to the compensation each Class member will receive from the common fund. Having thoroughly considered everything filed in the matter, the oral arguments presented, and the declarations attesting to the publication of the notice to class members, Judge Likovitz grants the Plaintiffs' unopposed motion for final approval of the class action settlement, consistent with her Order. Pursuant to Fed. R. Civ. P. 23(e), she approves the settlement and finds that it is, in all respects, fair, reasonable, and adequate to, and is in the best interests of, the Plaintiffs. Accordingly, the settlement is approved in all respects and will be consummated in accordance with its terms and conditions. The Plaintiffs and the Defendant are directed to perform the terms of the settlement, and the Clerk of the Court is directed to enter and docket this judgment in the action. Judge Litkovitz approves the allocation plan set forth in the notice as fair and equitable. She directs the class counsel and the Angeion Group, the claims administrator, to proceed with processing the monetary and gift card claims and the administration of the settlement and, upon completion of the claims processing procedure, to present to the Court a proposed final distribution order for the distribution of any remaining settlement funds. The Defendant will cease using the terminology Continuous Horsepower or CHP to market or sell its treadmills. It will remove such references from its website, from online manuals, and from any future distributed manuals or marketing materials. It will make a good faith effort to have retailers that sell its treadmills cease using these terms and will provide class counsel with evidence that they have done so. The Defendant will not make the claim that its horsepower representations reflect the maximum output a treadmill motor will actually sustain under variable conditions of rated user weight and at variable speeds/inclines (or something similar). Sole will not use the term horsepower with respect to the input to a motor. With respect to any future horsepower claim for its treadmills, the Defendant will provide information proximate to the claim to inform customers about the basis for the claim, such as, the stated horsepower is based on the motor manufacturer's horsepower rating, and/or, the stated horsepower is measured in laboratory testing using a dynamometer, which measures the mechanical power of the motor. It will make a good faith effort to have retailers that sell its treadmills similarly provide such information with respect to future horsepower claims. If the class counsel believes the Defendant is in breach of any provisions set forth in the Order, they must give Sole reasonable notice and opportunity to cure following a meet and confer conference before seeking any related relief. The Defendant is released and forever discharged from any and all of the released claims. All class members are bound by the settlement and are forever barred and enjoined from taking any action in violation of the settlement. Judge Litkovitz dismisses with prejudice the action and all of the Plaintiffs' claims against the Defendant. Subject to the terms of the settlement agreement and release, the Plaintiffs and the Defendant will bear their own fees and costs. Judge Litkovitz also grants the Plaintiffs' motion for attorney fees, expenses and class representative service awards. The class counsel's requested fee award equal to one-third of the common fund, or $1,216,666.67, is fair and reasonable for the work performed in this matter and may be deducted from the common fund and paid in accordance with the settlement. The class counsel's requested reimbursement of litigation expenses of $120,935.48, is fair and reasonable. In addition, the settlement administration expenses of Angeion, in the amount of $295,000, were reasonable and necessary in the prosecution of the action on behalf of the Class. Both sums may be deducted from the common fund and paid in accordance with the settlement. A service award of $5,000 to each of the two class representatives is fair, reasonable, and necessary to compensate the class representatives for their time and effort and the risk assumed in pursuing the action. This sum may be deducted from the common fund and paid in accordance with the settlement. Without affecting the finality of the Order in any way, the Court retains continuing jurisdiction over: (a) implementation and enforcement of any award or distribution from the common fund; (b) disposition of the common fund; (c) payment of taxes by the common fund; and (d) any other matters related to finalizing and implementing the settlement. The Order applies to all claims asserted in the action. Judge Litkovitz finds, for purposes of Fed. R. Civ. P. 54(b), that there is no just reason for delay and expressly directs entry of judgment as set forth in her Order. A full-text copy of the Court's Sept. 30, 2022 Order is available at https://tinyurl.com/yc87pz9y from Leagle.com. FORD MOTOR COMPANY: Scott Files Suit in N.D. Illinois ----------------------------------------------------- A class action lawsuit has been filed against Ford Motor Company. The case is styled as Ryan Scott, individually and on behalf of all others similarly situated v. Ford Motor Company, Case No. 3:22-cv-50352 (N.D. Ill., Oct. 6, 2022). The nature of suit is stated as P.I. for Motor Vehicle Product Liability. Ford Motor Company -- http://www.ford.com/-- is an American multinational automobile manufacturer headquartered in Dearborn, Michigan.[BN] The Plaintiff is represented by: Elizabeth A. Fegan, Esq. FEGAN SCOTT, LLC 150 S. Wacker Dr., 24th Floor Chicago, IL 60606 Phone: (312) 741-1019 Email: beth@feganscott.com GENERAL MOTORS: Chevy Bolt Battery Class Action to Proceed ---------------------------------------------------------- Trey Hawkins, writing for GM Authority, reports that the Chevy Bolt EV and Bolt EUV class action lawsuit related to battery concerns will be allowed to proceed in court, after being consolidated from eight individual class action lawsuits. According to a new report by Car Complaints, the lawsuit alleges that 2017-2022 Chevy Bolt EV and 2022 Bolt EUV vehicles are equipped with defective lithium-ion batteries and defective battery management systems. The lawsuit alleges that the battery pack in the Chevy Bolts catches fire if a single battery cell has a torn anode as well as a folded separator. As a stop-gap, GM released a software update to prevent the affected Chevy Bolt EV and EUV models from charging to full capacity. GM also advised owners to charge and park their vehicles outside and away from things that could catch fire, as well as warned them not to deplete the battery below certain charge levels. However, the lawsuit argues that these measures mean that customers aren't getting the full value of the vehicle they paid for. Chevy Bolt EV and EUV models with this update have a real-world range of 163 miles, which is only 63 percent of the full mileage advertised by GM. Plaintiffs have also cited anxiety and a lack of sleep over fire concerns, stating that they wouldn't have leased the vehicle to begin with if they were aware of the battery issues. GM has been hit by multiple class action lawsuits related to Chevy Bolt EV and EUV battery issues for the past two years, including the following: - Chimicles Schwartz Kriner & Donaldson-Smith, which accused GM of violating the Illinois Consumer Fraud and Deceptive Practices Act and the Magnuson-Moss Warranty Act, along with fraudulent concealment/fraud by omission. - Keller Rohrback L.L.P., Markovits, and Stock & DeMarco, LLC, which accused GM of concealing various defects with the 60 kWh lithium-ion battery pack found in the electric vehicles, which can allegedly cause the battery pack to overheat when the vehicle is nearly or fully charged. - Powell Miller, who represented 30 plaintiffs, said "(GM and LG) imposed limitations on consumers' use of their Bolts, those limitations dramatically reduced the value and usefulness of the Bolt, the resale value, restriction of driving range and when and where they can charge their vehicles – even where they can park them." - A California class action lawsuit, where the plaintiff was forced to make "unforeseen accommodations and take precautions that interfere," with their normal expected use of the vehicle. - A Canadian lawsuit, where the plaintiff, who owns both a 2017 and a 2018 Chevy Bolt EV, claims GM has been aware of potential defects with the Chevy Bolt EV's battery pack "since at least 2018," and knowingly marketed and sold affected vehicles anyways. [GN] GENERAL MOTORS: White Seeks to Certify Class of Purchasers ---------------------------------------------------------- In the class action lawsuit captioned as ROY WHITE, individually and on behalf of all others similarly situated, v. GENERAL MOTORS LLC, Case No. 1:21-CV-00410-CNS-MEH (D. Colo.), the Plaintiff asks the Court to enter an order pursuant to Rule 23(g) of the Federal Rules of Civil Procedure 1. certifying a class defined as follows: "All purchasers and lessees of a 2011-2014 Chevrolet Avalanche, 2011-2014 Chevrolet Silverado, 2011-2014 Chevrolet Suburban, 2011-2014 Chevrolet Tahoe, 2011-2014 GMC Sierra, 2011-2014 GMC Yukon, and 2011-2014 GMC Yukon XL manufactured on or after February 10, 2011 that was equipped with a Generation IV 5.3-liter V8 Vortec 5300 LC9 engine that was purchased or leased in the State of Colorado;" 2. appointing him as Class Representative; and 3. appointing DiCello Levitt LLC and Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. as Class Counsel. The General Motors Company is an American multinational automotive manufacturing company headquartered in Detroit, Michigan, United States. A copy of the Plaintiff's motion to certify class dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3EyV3cy at no extra charge.[CC] The Plaintiff is represented by: Adam J. Levitt, Esq. John E. Tangren, Esq. Daniel R. Ferri, Esq. DICELLO LEVITT LLC Ten North Dearborn Street, Sixth Floor Chicago, IL 60602 Telephone: 312-214-7900 E-mail: jtangren@dicellolevitt.com alevitt@dicellolevitt.com dferri@dicellolevitt.com - and - W. Daniel "Dee" Miles, III, Esq. H. Clay Barnett, III, Esq. J. Mitch Williams, Esq. Tyner D. Helms, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 272 Commerce Street Montgomery, AL 36104 Telephone: (334) 269-2343 E-mail: Dee.Miles@Beasleyallen.com Clay.Barnett@BeasleyAllen.com Mitch.Williams@Beasleyallen.com Tyner.helms@beasleyallen.com GOOGLE LLC: Court Dismisses Taylor Complaint Without Leave to Amend ------------------------------------------------------------------- In the case, JOSEPH TAYLOR, et al., Plaintiffs v. GOOGLE LLC, Defendant, Case No. 20-cv-07956-VKD (N.D. Cal.), Magistrate Judge Virginia K. DeMarchi of the U.S. District Court for the Northern District of California, San Jose Division, grants the Defendant's motion to dismiss without leave to amend. Defendant Google LLC moves pursuant to Rule 12(b)(6) to dismiss the Plaintiffs' first amended complaint ("FAC"). Plaintiffs Joseph Taylor, Edward Mlakar, Mick Cleary, and Eugene Alvis, each of whom are non-California residents and domiciliaries, filed this putative class action against Google, asserting claims for conversion and quantum meruit based on alleged "passive" data transfers performed by Google over its Android operating system. The alleged passive data transfers are made without the Plaintiffs' knowledge or consent, and at times when their mobile devices are idle, stationary, untouched and with all applications closed. The Plaintiffs assert their conversion and quantum meruit claims for themselves and on behalf of a putative class of "all natural persons in the United States (excluding citizens of the State of California) who have used mobile devices running the Android operating system to access the internet through cellular data networks operated by mobile carriers." They invoke federal jurisdiction under the Class Action Fairness Act, 28 U.S.C. Section 1332(d). On Oct. 1, 2021, the Court granted Google's motion to dismiss the original complaint, with limited leave to amend. Google moved to dismiss that complaint pursuant to Rule 12(b)(1), arguing that the Plaintiffs lack Article III standing to pursue their claims because they did not allege facts indicating that they have suffered any injury. Even if the Plaintiffs have standing, Google argued that dismissal was warranted under Rule 12(b)(6) because the complaint failed to allege sufficient facts supporting claims for conversion or quantum meruit. With respect to their Article III standing, the Court noted that no Plaintiff alleged any facts demonstrating injury, i.e., that he was charged an overage fee or experienced throttled connection speeds. It nonetheless addressed Google's Rule 12(b)(6) motion to dismiss the conversion and quantum meruit claims, finding that the issue of the Plaintiffs' Article III standing was intertwined with the parties' dispute about whether the complaint stated plausible claims for relief. The Court dismissed the conversion claim, finding that the Plaintiffs did not allege facts demonstrating that their "cellular data allowances" are personal property capable of exclusive possession or control. It dismissed the quantum meruit claim as merely derivative of the conversion claim. Although the Plaintiffs did not articulate any additional facts that could be alleged on amendment to support a plausible claim for conversion, the Court nonetheless granted leave to amend that claim. It also gave the Plaintiffs leave to amend their quantum meruit clam to the extent they believed they plausibly could assert such a claim based on their cellular data allowances. However, the Plaintiffs were not given leave to amend their quantum meruit claim based on the alleged use of "personal information," because they "not only failed to articulate additional facts that could be asserted on amendment, but have also not explained why they did not plead those allegations in their original complaint." The Plaintiffs' FAC names an additional plaintiff, Jennifer Nelson, identified as a resident and domiciliary of Wisconsin who has a data plan that requires her to pay a fixed price for up to one gigabyte of data per month, plus an additional charge for each additional gigabyte of data she uses in that month. The FAC reasserts a conversion claim, this time based on the theory that "cellular data" (rather than "cellular data allowances") is property subject to conversion. It also reasserts a quantum meruit claim, which the Plaintiffs contend is not a common count and is not derivative of their conversion claim. In their view, either cellular data is property subject to conversion, or it is a contractual right of access to a service subject to quantum meruit. It may even be both -- but it must at least be one or the other. Google contends that the FAC must be dismissed pursuant to Rule 12(b)(6) because the Plaintiffs still fail to state sufficient facts supporting a plausible claim for conversion or quantum meruit. Although Google does not directly challenge their standing, Google maintains that the Plaintiffs have not alleged any facts demonstrating that they personally suffered any concrete injury resulting from its alleged conduct. In their original complaint, the Plaintiffs' conversion claim asserted a property right in "their purchased data allowances" created by contract with their respective service providers. The Court dismissed the conversion claim because the Plaintiffs did not allege facts demonstrating exclusive possession of the "purchased data allowances" for which they contract. The FAC now bases the conversion claim on a purported property right in "cellular data," rather than "cellular data allowances," and alleges that "cellular data is property subject to conversion because, just like electricity or water, cellular data is capable of exclusive possession." Judge DeMarchi holds that the FAC still does not allege facts that any Plaintiff suffered any injury. While the FAC alleges that carriers have moved toward providing customers with unlimited data plans, she says it continues to assert that "users with limited data plans are typically charged an overage fee if they use more data than they have purchased in a given month" and that users with unlimited data plan may be "throttled" and experience reduced connection speeds and impaired or lost phone functions. Yet nowhere does the FAC allege that any Plaintiff had to pay more money for data or suffered a degradation in service because of Google's alleged passive data transfers. Indeed, at oral argument plaintiffs stated that they could not allege such facts because they do not know whether they have been negatively affected by Google's alleged conduct. Google's motion to dismiss the Plaintiffs' conversion claim is thus granted. The Plaintiffs maintain that if their cellular data plans provide a right of access to a service, and not property subject to conversion, then Google's alleged passive transfers necessarily must be subject to a claim for quantum meruit. The parties disagree whether the quantum meruit claim, as pled in the FAC, is merely derivative of the conversion claim. Google contends that the quantum meruit claim is a common count that falls with plaintiffs' conversion claim. The Plaintiffs argue that their quantum meruit claim is not pled as a common count. They further contend that the quantum meruit claim is sufficiently pled as a separate and independent claim for relief based on a theory that cellular data represents a right of access to a service. Even assuming that the FAC does not plead quantum meruit as a common count that is merely derivative of the Plaintiffs' conversion claim, Judge DeMarchi agrees that the Plaintiffs have not sufficiently pled an independent claim for relief. The fact remains that the FAC does not allege that all the Plaintiffs, who each have separate data plans with various cellular carriers, were affected alike -- or at all. As with the conversion claim, the lack of allegations of injury dooms their claim for quantum meruit. Because the FAC does not allege facts from which it may be inferred that the Plaintiffs provided services to Google that were not provided gratuitously and for which compensation was expected to be made, Judge DeMarchi finds that the Plaintiffs fail to state a claim for quantum meruit. The Plaintiffs have already been given leave to amend and have provided no basis for the Court to conclude that there are additional facts that could be alleged on a further amendment that would state a plausible claim for relief. Accordingly, Judge DeMarchi finds that amendment would be futile and therefore dismisses the FAC without leave to amend. Based on the foregoing, she grants Google's motion to dismiss the FAC without leave to amend. The Clerk will enter judgment accordingly and close the file. A full-text copy of the Court's Sept. 30, 2022 Order is available at https://tinyurl.com/36uw5x2r from Leagle.com. GOSPEL LIGHT: Beers' Bid to Dismiss Glasgow Suit Granted in Part ---------------------------------------------------------------- In the case, ROCHELLE GLASGOW, et al., Plaintiffs v. RONALD BEERS, et al., Defendants, Case No. 5:21-cv-2001 (N.D. Ohio), Judge David A. Ruiz of the U.S. District Court for the Northern District of Ohio, Eastern Division, enters an order: a. granting in part and denying in part the motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) filed by Benjamin Beers and Rachel Beers. b. granting the motion to dismiss pursuant to 12(b)(6) filed by Matt Bellis and Pamela K. Johnson; and c. denies the Rule 12(e) motion for more definite statement filed by Douglas D. Behrens. On Oct. 21, 2021, the Plaintiffs filed their Complaint against Defendants Gospel Light Mennonite Church Medical Aid Plan Inc. doing business as Liberty Healthshare, Medical Cost Savings Solution LTD (MCS), Cost Sharing Solutions LLC (CSS), Savnet International LLC, Ronald Beers, Daniel J. Beers, Daniel Beers Jr., Benjamin Beers, Rachel Beers, Druzilla J. Abel, Pamela K. Johnson, Thomas Fabris, Brandon Fabris, Douglas D. Behrens, Dale E. Bellis, and Matt Bellis. The Complaint alleges the following eight counts: (1) breach of contract and covenant of good faith and fair dealing against defendant Liberty; (2) money had and received against all defendants; (3) unjust enrichment against defendant Liberty; (4) civil RICO [Racketeer Influenced and Corrupt Organizations Act] action against defendants Liberty, CSS, MCS, and SavNet; (5) conversion against all defendants; (6) breach of fiduciary duty against all defendants; (7) intentional, or alternatively, negligent misrepresentation against all defendants; and (8) an accounting against all defendants. On Jan. 21, 2022, Defendant Douglas Behrens filed a Motion for More Definite Statement pursuant to Fed. R. Civ. P. 12(e). On Jan. 25, 2021, Benjamin and Rachel Beers filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to set forth direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory. On the same date, Defendants Matt Bellis and Pamela K. Johnson ("Johnson") raised a similar Rule 12(b)(6) argument in their motion to dismiss. Alternatively, they move the Court for a More Definite Statement pursuant to Fed. R. Civ. P. 12(e). As to the Motions to Dismiss for failure to State a Claim, the Defendants argue that the paucity of allegations against them are insufficient to satisfy Twombly's requirement that a claim must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. In their reply, Defendants Bellis and Johnson assert that "to meet notice pleading requirements, allegations against a defendant must at least set forth minimal facts as to who did what to whom, when, where, and why." The Plaintiffs contend that they provided fair notice of the claims against these defendants pursuant to Fed, R. Civ. P. 8(a). They assert that their "255-paragraph Complaint alleges specific facts regarding how Liberty was conceived, how it operates in conjunction with its affiliated enterprises, how it is a sham HCSM, the roles of each Defendant according to their respective relationships and roles, and the claims against them." Judge Ruiz disagrees that the Plaintiffs have satisfied the pleading standards against Defendants Matt Bellis, Pamela Johnson, Benjamin Beers, and Rachel Beers. He says while the Plaintiffs have indeed alleged a rather wide-ranging scheme by various Defendants, notably absent is any real allegation that these Defendants had any role in the alleged scheme. The volume of the allegations does not obscure the fact that the only allegation against Benjamin Beers and Rachel Beers is that they have a family relationship with other individually named Defendants who were officers, directors, or owners of various Defendant entities. With respect to Defendant Johnson, aside from the allegation of familial relationships with other Defendants, Judge Ruiz holds that the Complaint's only allegations beyond those asserted against Benjamin Beers and Rachel Beers are that Johnson was listed on a Form 990 and the subject of a verified complaint by the OAG in an unrelated case. As to Defendant Matt Bellis, the only allegations are that he was also listed on a Form 990 and there is a vague allegation that he is a "member" of the "affiliated enterprises." Because the pleadings against Defendants Matt Bellis, Pamela Johnson, Benjamin Beers, and Rachel Beers are deficient, Judge Ruiz dismisses these Defendants without prejudice. He does not find that there are no facts that the Plaintiffs could allege, as a matter of law, to state a cause of action against these defendants. Rather, the Plaintiffs have simply failed to allege any claims against these Defendants with the requisite level of specificity, and the vague allegations fail to give defendants adequate notice. Judge Ruiz, however, observes that the parties' Report of Planning contemplated an amendment cut-off date be set at least 120 days after the Court's rulings on the Defendants' pending Rule 12 motions. Therefore, he grants the Plaintiffs leave to file an Amended Complaint within 30 days of today's order. The Amended Complaint will either attempt to cure the identified pleading deficiencies against the aforementioned defendants or, alternatively, the Amended Complaint should remove these Defendants. Judge Ruiz notes that the leave to file an Amended Complaint is not limited in scope to altering the allegations against the aforementioned defendants (or Defendant Behrens). Because the Court prefers to avoid piecemeal amendments, the Plaintiffs may amend the complaint without limitation. Judge Ruiz now turns to the Motion for More Definite Statement. With respect to Defendant Behrens, it is alleged that he is one of Liberty's founders, and that he also founded SavNet -- a for-profit LLC whose telephone number is identical to Liberty's phone number. It is alleged that he is "a former Director of LHS, Defendant Dale Bellis' former business partner," and the owner of defendant SavNet, an affiliated company to Liberty. It is further alleged that "as such, he owed Liberty, its members, the Plaintiffs, and the putative Class Members a fiduciary duty of care and loyalty at all relevant times. Defendant Behrens takes issue with the Complaint's general failure to delineate the Defendants with any specificity. Despite the Plaintiffs' failure to delineate the various groupings of Defendants, Judge Ruiz finds that the allegations against Behrens are not so vague as to be unintelligible or to prejudice his ability to formulate an answer. Put simply, the Complaint sufficiently alleges that Behrens, among others, founded Defendant Liberty HealthShare, which, according to the Complaint, was a sham faith-based healthcare sharing ministry that failed to direct funds toward the payment of members' medical costs but rather illegally diverted premiums received from members to purposes other than the payment of benefits. Therefore, the motion for a more definite statement is not well taken and it will be denied. Nevertheless, as stated, the Plaintiffs are granted leave to file an Amended Complaint. In so doing, they will clearly delineate and define the various groupings of the Defendants when making their averments, and clarify the named Defendant(s) in Counts VI, VII, and VIII. For the foregoing reasons, Judge Ruiz grants in part and denies in part the motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) filed by Benjamin Beers and Rachel Beers. He grants the motion to the extent it moves for dismissal based on Rule 12(b)(6), and dismisses these Defendants without prejudice. The motion is denied without prejudice as moot to the extent it moves for dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. Judge Ruiz also grants the Rule 12(b)(6) motion filed by Matt Bellis and Pamela K. Johnson, and dismisses these Defendants without prejudice. Because the motion is granted, the Order need not address the alternative relief sought by the motion (i.e. motion for more definite statement). The Rule 12(e) motion for more definite statement filed by Behrens is denied. Finally, Judge Ruiz denies the remaining motions to dismiss without prejudice as moot in anticipation of the Plaintiffs filing an Amended Complaint. In light of the anticipated amended complaint, he denies the Defendants' motion to dismiss without prejudice. The Plaintiffs will have 30 days to file their Amended Complaint. A full-text copy of the Court's Sept. 30, 2022 Order is available at https://tinyurl.com/ywmtf54s from Leagle.com. GREG LINDBERG: Seeks Stay of Jordan Bid to Certify Class -------------------------------------------------------- In the class action lawsuit captioned as JAMES JORDAN, et al., on behalf of themselves and all others similarly situated, v. GREG E. LINDBERG, Case No. 1:22-cv-483 (M.D.N.C.), the Defendant ask the Court to enter an order staying the Plaintiffs' motion to certify class action pending a ruling on Lindberg's motion to Dismiss. The Plaintiffs are JAMES JORDAN, CBS INSURANCE, INC., EMPLOYERS FIRST CHOICE INSURANCE SERVICES INC., JAMES HELBIG, BRET FIELDS, TARGET, INC., LENNY MILLER, CHRIS BENKENDORF, NATIONAL BENEFITS GROUP MIDWEST LLC, MICHAEL TOLOMEI, THOMAS FLETCHER, CERTIFIED FINANCIAL SERVICES INC. f/k/a FLETCHER & ASSOCIATES LTD., AMERICA'S HEALTH CARE/RX PLAN AGENCY, INC., MICHAEL NORDQUIST, CONSOLIDATED FINANCIAL GROUP, LLC, BENEFITS FOR AMERICA INSURANCE SERVICES, INC., and PLAN AMERICA FINANCIAL SERVICES, INC. A copy of the Court's order Plaintiffs' motion dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3CKn4MN at no extra charge.[CC] The Defendant is represented by Aaron Z. Tobin, Esq. CONDON TOBIN SLADEK THORNTON NERENBERG, PLLC 8080 Park Lane, Ste. 700 Dallas, Texas 75231 Telephone: (214) 265-3800 Facsimile: (214) 691-6311 E-mail: atobin@condontobin.com - and - Matthew Nis Leerberg FOX ROTHSCHILD LLP 434 Fayetteville St., Ste. 2800 Raleigh, NC 27601 Telephone: (919) 755-8700 Facsimile: (919) 755-8800 E-mail: mleerberg@foxrothschild.com GREYHOUND LINES: Bazabal Sues Over Failure to Pay Minimum Wages --------------------------------------------------------------- Juan Bazabal, Keinard Simpson, as individuals, on behalf of themselves and all others similarly situated v. GREYHOUND LINES, INC., a Delaware corporation; and DOES 1 through 10, Inclusive, Case No. 3:22-cv-01520-JLS-AHG (S.D. Cal., Oct. 6, 2022), is brought against the Defendants' violations of the California Labor Code and IWC Wage Order 9, including: failure to pay all minimum wages; failure to pay proper reporting time pay; failure to provide accurate wage statements in violation of Labor Code; failure to timely pay wages when due at termination in violation of Labor Code; and violation of the Unfair Competition Law ("UCL") pursuant to Business & Professions Code. The Defendants underpay their employees in violation of California law, by failing to pay them for all time worked, by paying them less than minimum wage for hours that they are not driving, and by underpaying them for reporting time. As a result, the Defendants also failed to provide their employees with accurate wage statements and maintain adequate records and failed to pay all wages owed upon termination of employment, says the complaint. The Plaintiff was employed by the Defendants as a driver for from in October 2018 through mid-2020. Greyhound is the largest provider of intercity bus transportation.[BN] The Plaintiffs are represented by: Justin Hewgill, Esq. Efaon Cobb, Esq. HEWGILL COBB & LOCKARD, APC 1620 5th Avenue, Suite 325 San Diego, CA 92101 Phone: (619) 432-2520; Fax: (619) 377-6026 Email: contact@hcl-lawfirm.com - and - Ben Travis, Esq. BEN TRAVIS LAW, APC 4660 La Jolla Village Drive, Suite 100 San Diego, CA 92122 Phone: (619) 353-7966 Email: ben@bentravislaw.com HENDRICK ROOFING: Avila Sues Over Unpaid Regular, Overtime Wages ---------------------------------------------------------------- Juan C. Avila, and other similarly situated individuals v. Hendrick Roofing, Inc., Randy D. Hendrick, and David R. Hendrick, individually, Case No. 8:22-cv-02305 (M.D. Fla., Oct. 6, 2022), is brought to recover money damages for unpaid regular and overtime wages under the laws of the United States, pursuant to the Fair Labor Standards Act. The Plaintiff worked a total of 8 weeks with 57.5 working hours and 8 weeks with 69 working hours. The Plaintiff was paid weekly for all his hours, but he was not paid for overtime hours, as required by law. The Plaintiff did not clock in and out, but the Defendants were in absolute control of his schedule and activities. The Defendants knew the number of hours that the Plaintiff and others similarly situated individuals were working. Therefore, the Defendant willfully failed to pay the Plaintiff overtime wages, at the rate of time and a half his regular rate, for every hour that he worked in excess of 40, in violation of the FLSA, says the complaint. The Plaintiff was employed by the Defendants as a non-exempted, full-time roof installer. Hendrick Roofing is a roofing company specializing in commercial and residential roof installations, maintenance, and repairs.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com HIGHGATE HOTELS: Balderrama Sues to Recover Unpaid Wages -------------------------------------------------------- Bonnie Balderrama, Bonnie L. Balderrama, and other similarly situated individuals v. HIGHGATE HOTELS LP a/k/a YVE HOTEL MIAMI, Case No. 1:22-cv-23256-XXXX (S.D. Fla., Oct. 6, 2022), is brought to recover money damages for unpaid regular wages and under the laws of the United States, pursuant to the Fair Labor Standards Act. The Plaintiffs clocked in and out through a time-keeping system. Thus, the Defendant was in complete control of the Plaintiffs' schedule. They knew about the actual number of hours worked by Plaintiffs and other similarly situated individuals. Therefore, the Defendant willfully failed to pay the Plaintiffs minimum wages in violation of the FLSA, says the complaint. The Plaintiffs were employed by the Defendants as a non-exempted employees. The Defendant is a hotel operating a restaurant/bar.[BN] The Plaintiffs are represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com HIREAPP TECH: Fails to Pay OT Wages Under FLSA, Sanchez Alleges --------------------------------------------------------------- YANCEY SANCHEZ and other similarly situated individuals v. HIREAPP TECHNOLOGIES, Case No. 1:22-cv-23254 (S.D. Fla., Oct. 6, 2022) seeks to recover unpaid overtime compensation, liquidated damages, and attorneys' fees and costs pursuant to the provisions of the Fair Labor Standards Act. HIREAPP employed the Plaintiff as a non-exempted, full-time, hourly employee from March 22, 2022 to June 15, 2022. The Plaintiff worked an average of 55 hours weekly. The Plaintiff was paid for all his working hours at his regular rate. Additionally, every week the Defendant deducted 3 hours as lunchtime, regardless of the fact that Plaintiff was unable to take bonafide lunchtime. These deducted lunch hours, constitute overtime hours that were not paid to Plaintiff at any rate, not even at the minimum wage rate, the suit says. Accordingly, the Defendant did not maintain accurate and complete time records of hours worked by Plaintiff and other employees in the asserted class and violated the record-keeping requirements of FLSA. The total amount of alleged unpaid wages is $2,880.00. HIREAPP is a hospitality industry staffing company. The Defendant uses telephonic transmissions going over state lines to do its business, and transmits funds outside of the State of Florida, alleges the suit.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com HOOVESTOL INC: Customer Service Employees Win Class Status Bid -------------------------------------------------------------- In the class action lawsuit captioned as Thomas Hardwick v. Hoovestol, Inc., et al., Case No. 2:21-cv-05472-EAS-KAJ (S.D. Ohio), the Hon. Judge Edmund A. Sargus, Jr. entered an order: 1. granting conditional class certification to the Plaintiff's proposed class; and 2. approving expedited discovery and opt-in notice be sent as delineated in this decision. The Plaintiff requests conditional certification of the following class: "All current and former hourly, non-exempt telephone-based customer service employees employed by Defendant at any time in the three years preceding the date of the filing of this Action to the present, who worked 40 or more hours in any workweek and in the same workweek booted up their computer, logged into software programs, or reviewed emails prior to the start of their shift, or monitored or responded to messages on Slack. The Defendant Candid Care Company is a manufacturer of clear aligners and provider of support and administrative services to dental practitioners. The Defendant sells its products either directly to the consumer or through a network of orthodontists. To provide its aligners and related services, Candid employs a number of individuals in various capacities, including dentistry, sales, engineering and product design, marketing, operations, management, and customer and patient support. The Plaintiff Kevin Thomas, in addition to five individuals who have opted in to the putative class action, 1 are all former telephone-based customer service employees employed by the Defendant at some point during the three years preceding the filing of this civil action. The Plaintiff was employed by Candid as an "Active Care Specialist" from May 2019 to September 2021, and during that time, he avers that he routinely worked 40 hours or more per workweek and was not paid overtime. The Plaintiff alleges that he and those he seeks to represent were hourly, non-exempt telephone-based customer service employees who performed compensable work outside of their scheduled shift, for which they were not paid in violation of the Fair Labor Standards Act (FLSA). Hoovestol offers postal service contracting services. A copy of the Court's order dated Sept. 28, 2022 is available from PacerMonitor.com at https://bit.ly/3SIjmZw at no extra charge.[CC] HOUSTON BAPTIST: Senior Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Houston Baptist University. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. Houston Baptist University, Case No. 1:22-cv-08534 (S.D.N.Y., Oct. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Houston Christian University -- https://hbu.edu/ -- formerly known as Houston Baptist University, is a private Christian university in Houston, Texas.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal HUDSON VALLEY: 2nd Circuit Ruling in Overdraft Fees' Suit Discussed ------------------------------------------------------------------- Sheila Raftery Wiggins, Esq., of Duane Morris LLP, in an article for Lexology, reports that the Second Circuit ruled that a "buried" hyperlink is not, alone, fatal to enforcing arbitration and class action waiver provisions contained in an agreement that is incorporated by cross-reference via a web-based contract. Design, layout, and content of the webpage are significant factors to determining whether the contract terms were available and conspicuous, and thus enforceable. Zachman v. Hudson Valley Federal Credit Union, No. 21-999 (2nd Cir. Sept. 14, 2022). Clickwrap Agreement and Plaintiff's Class Action Claims In 2012, Plaintiff opened her bank account and received an Account Agreement. In 2019, Plaintiff agreed to an Internet Banking Agreement ("IB-Agreement") that incorporates by reference the revised Account Agreement. The IB-Agreement requires the customer to click a button of the Agreement stating "I agree to the above terms and conditions." Plaintiff filed a class action complaint alleging that Defendant-Bank HVCU's practice of collecting overdraft or insufficient funds on accounts that were not actually overdrawn violated: (1) New York General Business Law Section 349 and (2) the Electronic Fund Transfer Act, 15 U.S.C. Section 1693, et seq. . Clickwrap Agreement and Customers' Access to Revised Account Agreement HVCU filed a motion to dismiss and to compel arbitration, asserting: - the revised Account Agreement containing the arbitration agreement and class action waiver was published to its website which can be accessed via a hyperlink or via a "Resources" tab on HVCU's website - a physical copy of the Account Agreement may be obtained by the customer requesting a copy be mailed or going to a brick-and-mortar HVCU branch. HVCU did not: - implement a "banner" notification on the webpage - provide a summary of any changes to the Account Agreement on the webpage where the agreement is hyperlinked - otherwise indicate any changes had been made to the Account Agreement. District Court: Did Plaintiff Have "Inquiry Notice" of the Provisions? First, the District Court ruled that the district court, not an arbitrator, determines whether a valid arbitration agreement exists. Second, the District Court ruled that HVCU did not establish that Plaintiff had actual notice or inquiry notice of the arbitration and class action waiver provisions. The District Court concluded that the hyperlink to the revised Account Agreement appeared to be buried in the IB-Agreement and thus concluded that HVCU failed to establish that Plaintiff was put on inquiry notice of the arbitration and class action waiver provisions. HVCU appealed. Second Circuit: Website's Layout, Content, and Design The Second Circuit stated that the enforceability of a web-based agreement is a fact-intensive inquiry, which includes an evaluation of the visual evidence demonstrating "whether the website user has actual or constructive notice of the conditions" which often turns on "whether the design and content of th[e] webpage rendered the existence of terms reasonably conspicuous." Based on the evidence provided in support of the motion, the Second Circuit was unable to assess whether the relevant language and hyperlink are clear and conspicuous. The Second Circuit ruled that the District Court's conclusion that the provisions were "buried" in the IB-Agreement was inconsistent with the lack of evidence presented regarding the website's layout and design. The Second Circuit ruled that the District Court's ruling was premature . Significantly, the Second Circuit stated: - agreements may be incorporated by cross-reference via web-based contracts - as long as the layout and language of the website give the user reasonable notice that a click will manifest assent to an agreement, then clicking "I agree to the above terms and conditions" would bind Plaintiff to the IB-Agreement, along with the Account Agreements incorporated by reference - screenshots -- of the webpage(s) used to register HVCU customers for online banking -- will show the design and content of the IB-Agreement as presented to users and thus are relevant to whether Plaintiff assented to the agreement's terms In sum, a picture -- or here, screenshots -- is worth a thousand words and will help demonstrate that the parties mutually agreed to a clickwrap agreement. [GN] IG MARKETS: Faces Class Action Suit Over Marketing of CFDs ---------------------------------------------------------- Lucy Dean, writing for Australian Financial Review, reports that equity market broker IG Markets faces a proposed class action representing as many as 20,000 investors over its marketing of contracts for difference (CFD). Commercial law firm Piper Alderman and litigating funding firm Omni Bridgeway announced the proposed class action on Oct. 11, saying the UK-backed IG Markets consistently marketed CFDs to "inexperienced" investors. The lawyers said the total losses of investors with IG Markets exceed $800 million. The proposed class action will also claim investors were able to trade CFDs without IG Markets applying adequate checks and balances. CFDs are leveraged products that allow investors to bet on whether an underlying asset such as a share, currency or commodity will rise or fall. The investor pays a fraction of what the underlying asset is worth, and while a correct bet can generate significant profits, incorrect bets can trigger equally large losses. IG Markets describes itself as Australia's "No.1 CFD provider", and a banner at the top of its webpage warns investors that CFDs are "complex instruments" and have a "high risk of losing money rapidly". Announcing the proposed action, Piper Alderman and Omni Bridgeway referenced ASIC data finding 72 per cent of retail investors who traded CFDs lost money, with an average loss of $9000 a year between 2016 and 2021 of approximately $9000 a year. The class action will say investors suffered losses where risks were not appropriately disclosed and where their financial situations, needs and objectives were not adequately assessed. "There [is] now overwhelming evidence that highly leveraged CFDs should never have been marketed to everyday Australian investors who had little or no experience in trading such complex products," said Piper Alderman partner Martin del Gallego. Two investors lodged a statement of claim with the Federal Court against fellow major CFD investment provider, CMC Markets, in May. The applicants alleged CMC Markets sold "highly risky and unsuitable" CFDs to retail investors between November 2011 and April 2021. One applicant claimed to have become "consumed" with CFD trading and ultimately lost $226,000 in four years, while the second applicant claimed to have lost $270,000. The Australian Securities and Investments Commission (ASIC) in April extended limits on the amount of leverage available to retail investors trading CFDs to May 2027, following successive reviews in 2017, 2019 and 2020 finding most retail clients lose money trading CFDs. ASIC introduced the limit in March 2021 to strengthen consumer protections. It recorded a 91 per cent reduction in aggregate net retail client losses in the first six months of the limit, falling to $33 million from $372 million per quarter. The US and Hong Kong have banned the sale of CFDs to retail investors. Federal Court Justice Jonathan Beach described CFDs as "financial heroin hits" in 2020, while handing three firms a $75 million penalty following ASIC regulatory action. "CFDs are little more than a form of gambling which has left tens of thousands of Australians out of pocket," said Mr del Gallego. "Our proposed class action will seek to recover these losses for investors who should never have been exposed to trading in such complex, high-risk products." The class action is now taking registrations interest from investors. [GN] INTERSECTIONS INC: Hearing of $9M Deal in Merger Suit Set Jan. 19 ----------------------------------------------------------------- IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE LANCE SALLADAY, On Behalf of Himself and All Others Similarly Situated Former Stockholders of INTERSECTIONS, INC., Plaintiff, C.A. No. 2019-0048-SG JOHN ALBERTINE, THOMAS AMATO, AURA SUB, LLC, INTERSECTIONS, LLC, INTERSECTIONS HOLDINGS LLC, BRUCE L. LEV, DAVID A. MCGOUGH, MELVIN R. SEILER, MICHAEL R. STANFIELD, WC SACD ONE, LLC, WC SACD ONE PARENT, LLC, and WC SACD HOLDINGS, INC., Defendants. SUMMARY NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF STOCKHOLDER CLASS ACTION, SETTLEMENT HEARING, AND RIGHT TO APPEAR TO: All holders of Intersections, Inc. ("Intersections") common stock as of January 11, 2019, the date of the consummation of the merger of Intersections and WC SACD One, Inc. (the "Merger") (the "Settlement Class").1 PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS WILL BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the Court of Chancery of the State of Delaware (the "Court"), that the above-captioned stockholder class action (the "Action") is pending in the Court. YOU ARE ALSO NOTIFIED that Plaintiff in the Action, on behalf of himself and the Settlement Class, has reached a proposed settlement of the Action for $9,000,000 in cash (the "Settlement"). If approved by the Court, the Settlement will resolve all claims in the Action. A hearing (the "Settlement Hearing") will be held on January 19, 2023 at 9:30 a.m., before The Honorable Sam Glasscock III, Vice Chancellor, either in person at the Court of Chancery of the State of Delaware, Sussex County, Court of Chancery Courthouse, 34 The Circle, Georgetown, DE 19947, or by telephone or videoconference (in the discretion of the Court), to determine, among other things: (i) whether the Action may be permanently maintained as a non-opt out class action and whether the Settlement Class should be certified permanently, for purposes of the Settlement, pursuant to Court of Chancery Rules 23(a), 23(b)(1), and 23(b)(2); (ii) whether Plaintiff may be permanently designated as representative for the Settlement Class and Plaintiff's Lead Counsel as counsel for the Settlement Class, and whether Plaintiff and Plaintiff's Lead Counsel have adequately represented the interests of the Settlement Class in the Action; (iii) whether the proposed Settlement on the terms and conditions provided for in the Stipulation and Agreement of Settlement, Compromise, and Release dated September 7, 2022 (the "Stipulation") is fair, reasonable, and adequate to the Settlement Class, and should be approved by the Court; (iv) whether a Judgment, substantially in the form attached as Exhibit D to the Stipulation, should be entered dismissing the Action with prejudice against Defendants; (v) whether the proposed Plan of Allocation of the Net Settlement Fund is fair and reasonable, and should therefore be approved; (vi) whether the application by Plaintiff's Counsel for an award of attorneys' fees and Litigation Expenses and incentive award in connection with the benefits achieved under the Settlement should be approved; and (vii) to consider any objections received by the Court and other matters that may properly be brought before the Court in connection with the Settlement. The Court may decide to conduct the Settlement Hearing by video or telephonic conference, or otherwise allow Class Members to appear at the hearing by phone or video, without further written notice to Class Members. In order to determine whether the date and time of the Settlement Hearing have changed, or whether Class Members must or may participate by phone or video, it is important that you monitor the Court's docket and the Settlement website, www.intersectionsstocklitigation.com, before making any plans to attend the Settlement Hearing. Any updates regarding the Settlement Hearing, including any changes to the date or time of the hearing or updates regarding in-person or telephonic appearances at the hearing, will be posted to the Settlement website, www.intersectionsstocklitigation.com. If you are a member of the Settlement Class, your rights will be affected by the pending Action and the Settlement, and you may be entitled to share in the Net Settlement Fund. If you have not yet received the Notice, you may obtain a copy of the Notice by contacting the Settlement Administrator at Intersections Inc. Stockholder Litigation, c/o A.B. Data, Ltd., P.O. Box 173078, Milwaukee, WI 53217, (866) 905-8103, info@intersectionsstocklitigation.com. A copy of the Notice can also be downloaded from the Settlement website, www.intersectionsstocklitigation.com. If the Settlement is approved by the Court and the Effective Date occurs, the Net Settlement Fund will be distributed on a pro rata basis to "Eligible Class Members" in accordance with the proposed Plan of Allocation stated in the Notice or such other plan of allocation as is approved by the Court. Under the proposed Plan of Allocation, "Eligible Class Members" consist of Class Members who held shares of Intersections common stock at the Merger's Closing and therefore received or were entitled to receive the Merger Consideration for their Eligible Shares. Pursuant to the proposed Plan of Allocation, each Eligible Class Member will be eligible to receive a pro rata payment from the Net Settlement Fund equal to the product of (i) the number of Eligible Shares held by the Eligible Class Member and (ii) the "Per-Share Recovery" for the Settlement, which will be determined by dividing the total amount of the Net Settlement Fund by the total number of Eligible Shares. Eligible Class Members do not have to submit a claim form to receive a payment from the Settlement. Any objections to the proposed Settlement, the proposed Plan of Allocation, or Plaintiff's Counsel's application for an award of attorneys' fees and Litigation Expenses and incentive award in connection with the Settlement must be filed with the Register in Chancery in the Court of Chancery of the State of Delaware and delivered to Plaintiff's Lead Counsel and Defendants' Counsel such that they are received no later than January 4, 2023, in accordance with the instructions set forth in the Notice. Please do not contact the Court or the Office of the Register in Chancery regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to the Settlement Administrator or Plaintiff's Lead Counsel. Requests for the Notice should be made to the Settlement Administrator: A.B. Data, Ltd. P.O. Box 173078, Milwaukee, WI 53217 (866) 905-8103 info@intersectionsstocklitigation.com Inquiries, other than requests for the Notice, should be made to Plaintiff's Lead Counsel: Jeremy S. Friedman, Esq. Friedman Oster & Tejtel PLLC 493 Bedford Center Road, Suite 2D Bedford Hills, NY 10507 (888) 529-1108 jfriedman@fotpllc.com Peter B. Andrews, Esq. Andrews & Springer LLC 4001 Kennett Pike, Suite 250 Wilmington, DE 19807 (302) 504-4957 pandrews@andrewsspringer.com BY ORDER OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE Dated: October 10, 2022 Register in Chancery [GN] INVESTMENTS 41 LLC: Fails to Pay Proper Wages, Popova Alleges ------------------------------------------------------------- VIKTORIIA POPOVA, individually and on behalf of all others similarly situated, Plaintiff v. INVESTMENTS 41 LLC d/b/a BLACK MARKET MIAMI; and ERICK PASSO, Defendants, Case No. 1:22-cv-23260-CMA (S.D. Fla., Oct. 07, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Popova was employed by the Defendants as server. INVESTMENTS 41 LLC d/b/a BLACK MARKET MIAMI owns and operates a restaurant located in Miami, FL, known as Black Market Miami. [BN] The Plaintiff is represented by: Jordan Richards, Esq. USA EMPLOYMENT LAWYERS- JORDAN RICHARDS, PLLC 1800 SE 10th Ave, Suite 205 Fort Lauderdale, FL 33316 Telephone: (954) 871-0050 Email: Jordan@jordanrichardspllc.com JOLO INC: Saad, et al., Win Partial Summary Judgment Bid -------------------------------------------------------- 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 partial summary judgment; and -- granting the Plaintiffs' motion to strike and disregard the Defendants' opposition to the Plaintiffs' Statement of Material Facts. Accordingly, summary judgment shall enter in favor of the Plaintiffs on Counts I-III to the following extent: the Court finds as a matter of law that Defendants required Plaintiffs to share their tips with non "service employees", that is, persons who have supervisory or managerial responsibility, including Barrow and Morgan, and the Defendants unlawfully retained a portion or "split" of the tips Plaintiffs' received from customers for performing private and/or semi-private dances, thereby, violating the Mass.Gen.L. ch. 149, sections 148 & 150, Mass. Gen. L. ch. 151 sections 1& 7, and Mass.Gen.L. ch. 149, section 152A and entitling them to unpaid wages, and statutory damages in an amount to be determined. A copy of the Court's order dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3SIrj0U at no extra charge.[CC] KAV HEALTH: Prelim Pretrial Conference Order Entered in McLemore ---------------------------------------------------------------- In the class action lawsuit captioned as JORDYN MCLEMORE, et al., v. KAV HEALTH GROUP, LLC, Case No. 3:22-cv-00155-TMR-CHG (S.D. Ohio), the Court entered a preliminary pretrial conference order as follows: 1. Required disclosures under Completed Fed. R. Civ. P. 26(a)(1): 2. Cut-off date for motions to December 2, 2022 amend the pleadings and to add parties: 3. Cut-off date for filing motion November 30, 2022 to certify class: (a) Defendant's opposition to December 21, 2022 motion for conditional certification to be filed by: (b) Plaintiff's reply in support January 6, 2023 of motion for conditional certification: (c) Defendant's motion for summary June 16, 2023 judgment on Plaintiff's claims: (d) Plaintiff's opposition to July 14, 2023 Defendant's motion for summary judgment: (e) Defendant's reply in support August 14, 2023 of summary judgment: 4. Telephone status conference November 9, 2023 following discovery to discuss possible alternative dispute resolution mechanisms: 5. Discovery cut-off related to January 12, 2024 putative members of the class and collective action: 6. Plaintiff's Rule 23 motion to certify class and Defendant's motion to de-certify FLSA collective action: (a) Responses to Rule 23 motion March 8, 2024 to certify class and, if necessary, motion to de-certify FLSA collective action: (b) Replies in support: April 12, 2024 Kav Health is a drug rehab facility in Blue Ash, Ohio. A copy of the Court's order dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3ehbC20 at no extra charge.[CC] LAUNDRY FLAGLER: Garcia Sues Over Unpaid Regular, Overtime Wages ---------------------------------------------------------------- Barbara A. Garcia, and other similarly situated individuals v. Laundry Flagler LLC, a/k/a Soaphia Laundry Centers Tanguy Letalaer, and Phillippe Erb, individually, Case No. 1:22-cv-23257-XXXX (S.D. Fla., Oct. 6, 2022), is brought to recover money damages for regular and overtime unpaid wages under the United States laws, pursuant to the Fair Labor Standards Act. The Plaintiff estimates that during her employment with Defendants, she worked 33 weeks with a minimum of 50 hours and 34 weeks with a minimum of 60 hours weekly. The Plaintiff worked a substantial amount of overtime hours every week. However, the Plaintiff was paid for less than 40 regular hours with checks, and she was paid in cash for an average of 5 overtime hours, but at her regular rate. The remaining overtime hours were not paid to the Plaintiff at any rate, not even at the minimum wage rate. The Plaintiff was not paid for overtime hours as required by the FLSA. The Plaintiff clocked in and out, and the Defendants could track the hours worked by Plaintiff and other similarly situated employees. Therefore, the Defendants willfully failed to pay the Plaintiff for overtime hours at the rate of time and a half her regular rate for every hour that he worked in excess of 40, in violation the FLSA, says the complaint. The Plaintiff was hired as a non-exempted, full-time, hourly laundry attendant. Laundry Flagler LLC, a/k/a Soaphia Laundry Center is a Florida corporation having a business in Dade County, Florida.[BN] The Plaintiffs are represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com LINKEDIN CORP: Seeks Dismissal of Subscription Renewal Class Action ------------------------------------------------------------------- Christina Tabacco, writing for Law Street, reports that LinkedIn Corporation has moved to dismiss a suit brought by a member who argued that the platform made it unduly difficult for her to end her "Premium" subscription after taking advantage of a free trial period. In its defense, LinkedIn said that the problems complained of do not rise to an Oregon Automatic Renewal Law (ARL), Free Offer Law (FOL), or unfair trade practices law violation, and instead "seek[] to impose hyper-technical requirements." The plaintiff filed the putative class action in late July, alleging that LinkedIn failed to comply with the ARL in several ways, like failing to present automatic renewal offer terms clearly and conspicuously and charging the plaintiff's payment method without first obtaining her affirmative consent, among other alleged stumbles. The FOL claim contended that LinkedIn failed to make disclosures sufficient to inform consumers of the free offer and its terms. The motion to dismiss says that LinkedIn "complied with both the letter and spirit of the ARL and the FOL when it offered automatically renewing memberships to its subscription service, LinkedIn Premium." The filing contains numerous screenshots of LinkedIn web pages, purportedly depicting overt disclosures concerning how much consumers would be charged and when, that their subscription would be automatically renewed if they did not cancel, and cancellation instructions. In turn, LinkedIn argues that the complainant relied on "conclusory allegations and implausible inferences contradicted by those detailed disclosures." Because the complaint fails to allege viable claims under either the ARL or FOL, the plaintiff's appended Unlawful Trade Practices Act (UTPA) claims fail on the merits, the motion says. LinkedIn adds that the UTPA claims are time-barred and that the services LinkedIn offers are not "consumer services" within the meaning of the law. The case is before Judge Michael J. McShane. The plaintiff is represented by Markowitz Herbold PC and Bursor & Fisher P.A. and LinkedIn by Stoel Rives LLP. [GN] LUNDQUIST CONSULTING: Wins Judgment on Pleadings Bid in Petro Suit ------------------------------------------------------------------ In the case, ROBERT V. PETRO, individually and on behalf of all others similarly situated, Plaintiff v. LUNDQUIST CONSULTING, INC., Defendant, Case No. 2:21-cv-1187-NR (W.D. Pa.), Judge J. Nicholas Ranjan of the U.S. District Court, for the Western District of Pennsylvania grants the Defendant's motion for judgment on the pleadings. In this putative class action, Mr. Petro alleges that Lundquist Consulting illegally attempted to collect a debt from him when it lacked the authority to do so. He sues Lundquist under the Fair Debt Collection and Practices Act (FDCPA), based on its purported violation of Pennsylvania's Consumer Discount Company Act (CDCA). Under this latter statute, a licensed entity may not sell a debt to an unlicensed entity, unless the state's Department of Banking has approved. Mr. Petro argues that Lundquist never obtained approval to purchase the license from the lender. Mr. Petro received a personal loan from Lendmark Financial Services, LLC. He owed about $3,000, including interest at an APR of approximately 25.02%. Lendmark sold his loan to Plaza Services, LLC, and Plaza Services in turn sold it to Tea Olive, LLC. But neither purchaser obtained approval from Pennsylvania's Department of Banking, and neither holds a CDCA license. Tea Olive hired Lundquist to collect the debt, and Lundquist attempted to collect the full balance -- including unpaid interest -- by filing a proof of claim in a bankruptcy proceeding related to Mr. Petro. Mr. Petro is contesting Lundquist's right to collect both in the Court and in ongoing bankruptcy proceedings. He claims that its actions "constitute false, deceptive, or misleading representations or means in connection with the collection of a debt, in violation of 15 U.S.C. Section 1692e, and/or unfair or unconscionable means to collect or attempt to collect a debt, in violation of 15 U.S.C. Section 1692f. Pending before the Court is Lundquist's motion for judgment on the pleadings. Lundquist originally argued that the federal bankruptcy code preempts Pennsylvania's CDCA here; that res judicata bars Mr. Petro's claims; that the Noerr-Pennington doctrine confers immunity because Lundquist was petitioning to collect money it was owed; and that Mr. Petro did not allege sufficiently separate conduct to establish unfair or unconscionable means to collect or attempt to collect a debt, in violation of 15 U.S.C. Section 1692f. After the Court invited supplemental briefing Son the issue, Lundquist additionally argued that the CDCA is inapplicable because Lundquist is a debt collector and the money at issue was a "charged-off" debt. Mr. Petro disagrees on all counts. The threshold question this motion presents is a purely legal one. If the CDCA does not apply, Mr. Petro's FDCPA claims collapse, because they are predicated on an underlying CDCA violation, citing Lutz v. Portfolio Recovery Assocs., LLC, No. 21-1656, 2022 WL 4295631, at *8 (3d Cir. Sept. 19, 2022). That is precisely the result in the case, Judge Ranjan opines. He finds that Mr. Petro's claim isn't singularly a Section 6214 claim; it depends also on Lundquist being subject to Section 6203 of the CDCA, which it indisputably now is not. In short, the Third Circuit's decision in Lutz makes clear that the CDCA does not apply to an entity like Lundquist -- an entity that is a debt collector collecting on an "unlicensed" debt. Judge Ranjan further finds that Mr. Petro alleges that Lundquist attempted to collect unpaid interest that Lendmark, a CDCA licensee, had already charged. He does not allege that unlicensed purchasers were attempting to charge additional interest after the debt was charged-off -- let alone that they were charging interest at usurious rates. Therefore, because the loan here was charged off, the CDCA's broader anti-usury regulatory framework is not implicated, and does not apply. For these reasons, Lundquist's motion for judgment on the pleadings is granted. An appropriate judgment follows. A full-text copy of the Court's Sept. 30, 2022 Memorandum Opinion is available at https://tinyurl.com/2p856rfz from Leagle.com. MATERIAL GOOD: Hwang Files ADA Suit in E.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Material Good, LLC. The case is styled as Jenny Hwang, on behalf of herself and all others similarly situated v. Material Good, LLC, Case No. 1:22-cv-05978 (E.D.N.Y., Oct. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Material Good -- https://materialgood.com/ -- is a place to discover & shop beautiful objects, timepieces, & jewelry in the warmth of a livable space.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 14749 71st Ave. Flushing, NY 11367 Phone: (917) 915-7415 Email: mars@khaimovlaw.com MEAT SHOP: Sued Over E. Coli Outbreak From Pork Contamination ------------------------------------------------------------- Food Safety News reports that about 45 people are involved in a class action lawsuit against an Alberta, Canada, Hutterite colony related to contaminated pork that led to an E. coli O157:H7 outbreak. A judge certified the case in recent days. It seeks compensation for people who were sickened after consuming pork products from The Meat Shop at Pine Haven, which is a meat packing and retail store at the Pine Haven Hutterite colony near Wetaskiwin. One person died and 42 others were sickened in the outbreak during the spring of 2018. The cases were linked to pork products contaminated with E. coli O157:H7. Fourteen of the patients had to be hospitalized and five developed a kind of kidney infection known as hemolytic uremic syndrome (HUS), which frequently causes lifelong injuries and sometimes death. About half of the cases involved people who had eaten at Mama Nita's, a Filipino restaurant in southeast Edmonton that has since closed. The Canadian Food Inspection Agency traced the pork products to The Meat Shop at Pine Haven, according to court documents. "The defendants owed a duty of care to the plaintiff and other class members to ensure that its products were safe for consumption and that ingestion of those products would not cause illness or injury," the plaintiffs say in their complaint. In total, the plaintiffs seek $15 million in damages and another $1 million in special damages. Edmonton lawyer Rick Mallett represents the plaintiffs. He expects the case could take up to two years to reach trial. About E. coli infections Anyone who has developed symptoms of E. coli infection should seek medical attention and tell their doctor about their possible exposure to the bacteria. Specific tests are required to diagnose the infections, which can mimic other illnesses. The symptoms of E. coli infections vary for each person but often include severe stomach cramps and diarrhea, which is often bloody. Some patients may also have a fever. Most patients recover within five to seven days. Others can develop severe or life-threatening symptoms and complications, according to the U.S. Centers for Disease Control and Prevention (CDC). About 5 to 10 percent of those diagnosed with E. coli infections develop a potentially life-threatening kidney failure complication, known as a hemolytic uremic syndrome (HUS). Symptoms of HUS include fever, abdominal pain, feeling very tired, decreased frequency of urination, small unexplained bruises or bleeding, and pallor. Many people with HUS recover within a few weeks, but some suffer permanent injuries or death. This condition can occur among people of any age but is most common in children younger than five years old because of their immature immune systems, older adults because of deteriorating immune systems, and people with compromised immune systems such as cancer patients. People who experience HUS symptoms should immediately seek emergency medical care. People with HUS will likely be hospitalized because the condition can cause other serious and ongoing problems such as hypertension, chronic kidney disease, brain damage, and neurologic problems. [GN] MEGA HOME: Fails to Pay Proper Wages, Jones Suit Alleges -------------------------------------------------------- LEROY JONES, individually and on behalf of all other similarly situated, Plaintiff v. MEGA HOME & LINEN, INC.; and SHAUN ZAKARIA, Defendants, Case No. 1:22-cv-06010 (E.D.N.Y., Oct. 7, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Jones was employed by the Defendants as delivery worker. MEGA HOME & LINEN, INC. owns and operates a furniture store located at Brooklyn, NY. [BN] The Plaintiff is represented by: Jason Mizrahi, Esq. Joshua Levin-Epstein, Esq. LEVIN-EPSTEIN & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4700 New York, NY 10165 Telephone: (212) 792-0048 Email: Jason@levinepstein.com MERDEL GAME: Toro Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against Merdel Game Manufacturing Co. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. Merdel Game Manufacturing Co., Case No. 1:22-cv-08505-JPC (S.D.N.Y., Oct. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Merdel Game Manufacturing Co. was founded in 1961. The company's line of business includes the manufacturing of games and game sets for adults and children.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com MHM HEALTH: Court Enters Case Management Order in Lewis Suit ------------------------------------------------------------ In the class action lawsuit captioned as PENNY LEWIS v. MHM HEALTH PROFESSIONALS, LLC, Case No.4:22-cv-00228-SEP (E.D. Mo.), the Hon. Judge entered a case management order --class certification issues as follows: -- The parties shall complete all January 20, 2023 discovery relating to conditional class certification issues no later than: -- This case shall be referred to October 28, 2022 alternative dispute resolution on: -- Briefs supporting or opposing February 10, 2023 conditional class certification must be filed no later than: -- Any response shall be filed no March 10, 2023 later than: -- Any reply shall be filed no March 24, 2023 later than: MHM Health is a healthcare company. It offers medical, dental, and forensic. The company is located at Vienna, Virginia. A copy of the Court's order dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3Cmgdb3 at no extra charge.[CC] MICHAEL STORES: Powell Sues Over Unsolicited Text Messages Calls ---------------------------------------------------------------- Kristen Powell, individually and on behalf of all others similarly situated v. MICHAEL STORES, INC., Case No. CACE-22-014913 (Fla. 17th Judicial Cir. Ct., Broward Cty., Oct. 6, 2022), is brought against the Defendant for the Defendant's violations of the Florida Telephone Solicitation Act by engaging in unsolicited telephonic sales text messages calls. To promote its goods and services, the Defendant engages in telephonic sales text messages calls to consumers without having secured prior express written consent as required by the FTSA. The Defendant's telephonic sales calls have caused the Plaintiff harm, including violations under statutory rights and legally protected interests, statutory damages, annoyance, nuisance, and invasion of their privacy. Through this action, the Plaintiff seek an injunction and statutory damages on behalf of the Plaintiff individually and the Class members and any other available legal or equitable remedies resulting from the unlawful actions of the Defendant, says the complaint. The Plaintiff is a natural person who was a resident of Broward Country, Florida. The Defendant directs, markets, and provides business activities throughout the State of Florida and the United States.[BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 East Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Phone: 954.400.4713 Email: mhiraldo@hiraldolaw.com - and - Jibrael S. Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 MIDNIGHT EXPRESS: Petrea Seeks Conditional Cert. of Collective -------------------------------------------------------------- In the class action lawsuit captioned as KRISTIE PETREA, individually and on behalf of all others similarly situated, v. MIDNIGHT EXPRESS AUTO RECOVERY, INC., STACEY WILLETTE, and TONY WILLETTE, Case No. 3:22-cv-00415-JAG (E.D. Va.), the Defendant asks the Court to enter an order: 1. conditionally certifying the case as a collective action; 2. mandating dissemination of notice to all putative Plaintiffs comprising the collective: 3. equitably tolling the applicable Fair Labor Standards Act (FLSA) statute of limitations pursuant to Cruz v. Maypa, 773 F.3d 138, 145-47 (4th Cir. 2014) for Plaintiff and the FLSA Collective due to the Defendant's failure to post the required notice of FLSA rights at any time during the Plaintiff's employment, so that notice of this action may be sent to all those meeting the definition of the FLSA Collective at any time since the beginning of Plaintiff's employment in March 2010. The collective is defined as follows: FLSA Collective "All persons who have been employed by or worked for the Defendants as Office Staff, including Case Workers, Receptionists, Office Assistants, and Transport Coordinators, or in positions having substantially similar job duties, within three years prior to this action's filing (or since March 1, 2010 if equitable tolling is granted), to the trial of this action." VOWA Collective Subclass "All members of the FLSA Collective who were employed by or worked for Defendants at any time between July 1, 2021 and June 30, 2022." Midnight Express is located in Stafford, Virginia. The organization primarily operates in the general automotive repair shops business. A copy of the Plaintiff's motion to certify class dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3RSOvZ5 at no extra charge.[CC] The Plaintiff is represented by: Timothy Coffield, Esq. COFFIELD PLC 106-F Melbourne Park Circle Charlottesville, VA 22901 Telephone: (434) 218-3133 Facsimile: (434) 321-1636 E-mail: tc@coffieldlaw.com MIKIMOTO (AMERICA) CO: Hwang Files ADA Suit in E.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Mikimoto (America) Co., Ltd. The case is styled as Jenny Hwang, on behalf of herself and all others similarly situated v. Mikimoto (America) Co., Ltd., Case No. 1:22-cv-05982 (E.D.N.Y., Oct. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. MIKIMOTO -- https://mikimotoamerica.com/ -- is Japan's representative jeweler who distributes and supplies jewelry products.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 14749 71st Ave. Flushing, NY 11367 Phone: (917) 915-7415 Email: mars@khaimovlaw.com MORNING FINANCIAL: Faces Ulery Class Suit Over Unwanted Robocalls ----------------------------------------------------------------- DAVID ULERY, individually and on behalf of all others similarly situated v. MORNING FINANCIAL, Case No. 1:22-cv-02617 (D. Colo., Oct. 6, 2022) contends that the Defendant promotes and markets its merchandise, in part, by placing unwanted phone calls to wireless phone users, in violation of the Telephone Consumer Protection Act. The Plaintiff seeks to recover damages, injunctive relief, and any other available legal or equitable remedies, in violation of TCPA. The Plaintiff asserts that he and each Class Member received unwanted telephone robocalls without proper regard to the TCPA or the Do-Not-Call Rules, and in disregard for individual privacy. He further contends that their phone numbers were registered with the National Do-Not-Call Registry. This lawsuit challenges all calls that were sent by the Defendants to the Plaintiff and Class Members from September 2018, through the date of preliminary approval of class certification. Morning Financial engages in the telemarketing, promotion, and sale, of debt relief and resolution services to consumers across the country.[BN] The Plaintiff is represented by: Joshua H. Eggnatz, Esq. Michael J. Pascucci, Esq. Steven N. Saul, Esq. Joshua H. Eggnatz, Esq. EGGNATZ | PASCUCCI 7450 Griffin Road, Suite 230 Davie, FL 33314 Telephone: (954) 889-3359 Facsimile: (954) 889-5913 E-mail: MPascucci@JusticeEarned.com JEggnatz@JusticeEarned.com SSaul@JusticeEarned.com SGizzie@JusticeEarned.com - and - Jordan Richards, Esq. JORDAN RICHARDS, PLLC 1800 Southeast 10th Ave., Suite 205 Fort Lauderdale, FL 33316 Telephone: (954) 871-0050 E-mail: Jordan@jordanrichardspllc.com - and - Seth M. Lehrman, Esq. EDWARDS POTTINGER LLC 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: (954) 524-2820 Facsimile: (954) 524-2822 E-mail: seth@epllc.com MOUSEFLOW INC: Court Grants First Bid to Dismiss Sacco Class Suit ----------------------------------------------------------------- In the case, BRIAN SACCO individually and on behalf of all others similarly situated, Plaintiff v. MOUSEFLOW, INC., Defendant, Case No. 2:20-cv-02330-TLN-KJN (E.D. Cal.), Judge Troy L. Nunley of the U.S. District Court for the Eastern District of California grants the Defendant's first motion dismiss. The Defendant is a Texas corporation with its headquarters in Austin, Texas. Its business model includes entering into voluntary partnerships with various companies where Defendant licenses the use of its software technology, Mouseflow. Mouseflow is a tool used to record, in real time, a website visitor's interactions on the website, including a user's keystrokes, mouse clicks, mouse movement, scrolls, and other interactions with the website. The Mouseflow software also tracks device information, location information, and more. The Plaintiff alleges the Mouseflow software functions in the following way: a company installs the Mouseflow JavaScript on its website, which then records visitor's information as outlined, and transfers the recorded information to the Defendant's servers that host the platform. The Plaintiff, a California resident, contends Blizzard Entertainment, Inc. voluntarily embedded the Mouseflow JavaScript code on worldofwarcraft.com pursuant to an agreement with the Defendant. While in California around March and April of 2020, he visited the website worldofwarcraft.com two to three times. During his visits to the website, the Plaintiff engaged in typical browsing activities, "such as clicking on links to webpages of interest, scrolling through pages, using dropdown menus, and using the website search tool." He was unaware that his "keystrokes, mouse clicks, and other electronic communications, including the information described, were being intercepted in real-time and disclosed to Mouseflow, while the website communications between the Plaintiff and worldofwarcraft.com were being transmitted." He alleges the Mouseflow software "functions as a wiretap" and Defendant is a "eavesdropper" who surreptitiously obtains user information. On Nov. 20, 2020, the Plaintiff filed a purported class action against Blizzard and Mouseflow. The complaint alleged violations of the California Invasion of Privacy Act ("CIPA"), codified at California Penal Code Sections 631 and 635. On Feb. 16, 2021, the Plaintiff voluntarily dismissed Blizzard from this action. On Feb. 17, 2021, he filed the operative First Amended Complaint ("FAC") with substantially the same allegations contained in the original complaint. The FAC alleged the same violations of California Penal Code Sections 631 and 635 and added a claim of invasion of privacy under the California Constitution. On March 17, 2021, Mouseflow filed two motions to dismiss -- one asserting a lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) and the second asserting a lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and failure to state a claim pursuant to Rule 12(b)(6). After attempting to distinguish between the allegations that relate to the Defendant from the allegations that relate to the software, Judge Nunley finds that it becomes clear the FAC is riddled with contradictory and inconsistent allegations. The Defendant does not use the Mouseflow technology, it provides it to other companies, like Blizzard. Indeed, paragraph 15 of the complaint concedes the Defendant's "business model involves entering into voluntary partnerships with various companies and providing its software to those partners." Because the Defendant only provided the software, rather than used the software, it cannot be said that the Defendant "read or attempted to read or learn the contents" of any communications. Because these allegations are inherently contradictory, the Court need not accept them as true. Turning to the issue of personal jurisdiction, the Defendant argues the Court should dismiss the FAC because there is neither general nor specific jurisdiction as it is not "at home" in California and it lacks sufficient minimum contacts within the state. In opposition, the Plaintiff does not argue the Court has general jurisdiction over the Defendant and instead asserts the Defendant is subject to specific jurisdiction based on its forum-related activities. Thus, the Court looks to the Ninth Circuit's three-part test to determine whether to exercise specific personal jurisdiction over the Defendant. For a defendant to have purposefully directed their conduct at or to a forum the defendant must have "(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state. Judge Nunley holds that the Plaintiff fails to establish the three prongs of the effects test. He finds that while the FAC does allege the Defendant contracted with Blizzard to use the Mouseflow software, the Plaintiff does not argue this contract amounts to an intentional act for purposes of establishing personal jurisdiction. Even if they did, this act alone is far too attenuated to support personal jurisdiction. Because the FAC fails to allege an intentional act by Defendant there can be no personal jurisdiction. Even if he were to accept the intentional act put forth bythe Plaintiff that Defendant intentionally wiretapped California visitors of worldofwarcraft.com, Judge Nunley holds that the Plaintiff still fails to establish the second element of the effects test -- that the act was directly aimed at California. The alleged harm -- the recording of Plaintiff's visit to the worldofwarcraft.com website and the collection of his personal data -- would have occurred no matter the state Plaintiff was in. Defendant did nothing specifically directed at California or California residents to tether it to this forum. Because the Plaintiff fails to establish the three prongs of the effects test, it necessarily follows that he has failed to establish the Defendant purposefully directed its conduct at or to the forum state. As such, the Plaintiff fails step one of the specific personal jurisdiction test, and the Court need not and does not address Defendant's remaining grounds for dismissal. For the foregoing reasons, Judge Nunley grants the Defendant's first Motion to Dismiss and denies its second Motion to Dismiss as moot. Although he has serious doubts about the Plaintiff's ability to cure the deficiencies in the FAC, Judge Nunley gives the Plaintiff an opportunity to amend based on the liberal standard in favor of granting leave to amend. He cautions, however, that any amendment the Plaintiff files must cure the outlined deficiencies "without contradicting any of the allegations of the FAC." In other words, any subsequently amended complaint must not allege facts inconsistent with the challenged pleading. The Plaintiff may file an amended complaint not later than 30 days from the electronic filing date of the Order. The Defendant will file a responsive pleading not later than 21 days from the electronic filing date of the Plaintiff's amended complaint. If the Plaintiff opts not to file an amended complaint, the Court will dismiss the action and close the case. A full-text copy of the Court's Sept. 30, 2022 Order is available at https://tinyurl.com/bdfjkjus from Leagle.com. NATIONSTAR MORTGAGE: Extension of Class Cert. Bid Seal Sought ------------------------------------------------------------- In the class action lawsuit captioned as EUGENIO AND ROSA CONTRERAS, WILLIAM PHILLIPS, TERESA BARNEY, KEITH AND TERESA MARCEL, SHERLIE CHARLOT, and JENNIE MILLER, on behalf of themselves and all others similarly situated, v. NATIONSTAR MORTGAGE LLC, a Delaware Limited Liability Company; SOLUTIONSTAR HOLDINGS LLC (N/K/A XOME HOLDINGS LLC), a Delaware Limited Liability Company; and SOLUTIONSTAR FIELD SERVICES LLC, a Delaware Limited Liability Company, Case No. 2:16-cv-00302-MCE-JDP (E.D. Cal.), the Plaintiffs ask the Court to enter an order extending the seal of certain portions of the Plaintiffs' Motion for Class Certification, indefinitely, such that the sealed documents may be viewed only by this Court, Defendants, and their counsel. On August 1, 2019, this Court entered an Amended Stipulated Protective Order for the Treatment of Confidential Information (“Protective Order) to safeguard the confidential nature of certain documents and information produced by the parties in this matter. The Plaintiffs seek to file under seal documents and information protected under the terms of the Protective Order, including information designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" by the Defendants. On September 30, 2021, the Court entered an Order Granting Plaintiffs’ Request to File Certain Portions of Plaintiffs’ Motion for Class Certification Under Seal. The Plaintiffs seek to extend the seal on unredacted copies of the following documents, previously filed under seal as ECF No. 133, (total page count: 372). Nationstar, doing business as Mr. Cooper, offers mortgage services. A copy of the Plaintiffs' motion dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3TfvEsv at no extra charge.[CC] The Plaintiffs are represented by: Laura R. Gerber, Esq. Dean Kawamoto, Esq. Derek W. Loeser, Esq. KELLER ROHRBACK L.L.P. 1201 Third Ave, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 E-mail: lgerber@kellerrohrback.com dkawamoto@kellerrohrback.com dloeser@kellerrohrback.com - and - Thomas E. Loeser, Esq. HAGENS BERMAN SOBOL SHAPIRO L.L.P. 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 E-mail: toml@hbsslaw.com NESTLE USA: Court Dismisses Angeles' First Amended Class Complaint ------------------------------------------------------------------ In the case, MARITZA ANGELES, individually and on behalf of all others similarly situated, Plaintiff v. NESTLE USA, INC., Defendant, Case No. 21-CV-7255 (RA) (S.D.N.Y.), Judge Ronnie Abrams of the U.S. District Court for the Southern District of New York grants the Defendant's motion to dismiss the Plaintiff's first amended complaint. Ms. Angeles brings the putative class action against the Defendant asserting that its San Pellegrino Essenza Lemon & Lemon Zest sparkling mineral water is labeled in such a way that is misleading to consumers, in violation of New York General Business Law and several other common law and statutory protections. Based on its labeling, the Plaintiff alleges that she expected that the sparkling water would contain more lemon ingredients than it actually did. Ms. Angeles initiated suit against Nestle, which "manufactures, imports, packages, labels, markets, and sells sparkling mineral water with added carbon dioxide" under the San Pellegrino brand called "S. Pellegrino Essenza - Lemon & Lemon Zest." She alleges that she bought the Product because "she expected it would contain more lemon ingredients than it did, instead of a natural flavor that simulated lemon taste."In particular, she claims that she was deceived into thinking that there was more real lemon in the Product than there actually is because the "Defendant's packaging and labeling misleads consumers as to the relative amount and quantity of lemon ingredients." Based on the labeling and packaging, the Plaintiff alleges that "consumers will expect the Product's lemon taste is provided by lemon ingredients and have an appreciable amount of lemon" -- "an amount sufficient so that all the lemon taste comes from lemons." Specifically, she asserts that the "packaging and labeling are misleading because they give consumers the impression it contains a greater amount of lemon ingredients than it does." Additionally, given that the Product is sold under the esteemed San Pellegrino brand, and imported from Italy, she had no reason to expect the Product lacked the relative amount and type of lemon ingredients. The Plaintiff asserts that the value of the Product was "materially less" than that represented. Had she known that the Product did not have an appreciable amount of lemon ingredient, she claims, she would not have bought the Product or would have paid less for it. The Plaintiff brings claims against Nestle for (1) violations of Sections 349 and 350 of the New York General Business Law ("GBL"), which prohibit deceptive business practices and false advertising, (2) violations of the consumer fraud acts of Iowa and Arkansas on behalf of a purported multi-state class, (3) negligent misrepresentation, (4) breaches of express warranty, the implied warranty of merchantability, and the Magnuson Moss Warranty Act, 15 U.S.C. Sections 2301, et seq., (4) fraud, and (5) unjust enrichment. She seeks both monetary damages and injunctive relief that would require the Defendant to correct its allegedly misleading labeling. Now before the Court is the Defendant's motion to dismiss the Plaintiff's amended complaint. The Plaintiffs' first cause of action arises under Sections 349 and 350 of the New York General Business Law. To successfully assert a claim under either section, "a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice. The Plaintiff argues that the Product is misleading because the bottle's "packaging and labeling give consumers the impression it contains a greater amount of lemon ingredients than it does." Judge Abrams disagrees, and finds that the Plaintiff has failed to plausibly allege that a reasonable consumer would conclude from the Product's label and packaging that it contained an appreciable amount of real lemon ingredients, such that it would be misleading. The label's use of the phrase "Lemon & Lemon Zest" merely represents that the Product is lemon flavored. The Product does not use language such as "made with lemon," "made with lemon zest," or any other similar message that would convey to a reasonable consumer that the Product includes those ingredients. As described, the Product contains no language -- as contrasted with the "large bold type" in Mantikas -- suggesting that it is "made with" lemons. And, the Nutrition Facts are consistent with the representations elsewhere on the packaging -- namely, that this is a lemon-flavored mineral water. Accordingly, Judge Abrams finds that the Plaintiff has failed to state a claim that the Product's labeling and packaging is misleading. The Plaintiff further asserts claims for negligent misrepresentation, breach of express warranty, breach of implied warranty of merchantability, breach of the Magnuson-Moss Warranty Act, fraud, and unjust enrichment. These claims, which largely hinge on the same theory of misleading business practices rejected by the Court above, all fail as a matter of law. To state a claim for negligent misrepresentation under New York law, a plaintiff must plead "(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information." As discussed, Judge Abrams finds that the Plaintiff has not plausibly alleged that the Defendant's product label imparted incorrect information. This claim fails for the additional reason that the Plaintiff has not plausibly alleged the existence of a special relationship or a privity-like relationship. The negligent representation claim thus fails. The Plaintiff's claim for breach of express warranty fails for similar reasons, Judge Abrams notes. Because the Plaintiff has failed to plausibly allege that the Product does not comport with the statements contained on the label, this claim fails. Even assuming that the statements on the label amounted to a warranty of sorts, the Plaintiff has not plausibly alleged a breach of that warranty. Her claim for breach of implied warranty fails for the additional reason that there is no allegation that the lemon-flavored sparkling water was unfit for human consumption. The Plaintiff's claim of fraud under New York law also fails. Putting aside the question as to whether the Plaintiff has alleged fraud with the requisite level of specificity under Rule 9(b) of the Federal Rules of Civil Procedure, Judge Abrams finds that she has failed to allege a material misrepresentation of fact or omission since a reasonable consumer would not conclude that the Product's labeling communicates that it contains an "appreciable amount" of lemon. Finally, the Plaintiff's unjust enrichment claim similarly fails because the Plaintiff has not plausibly alleged any misleading or incorrect statements by the Defendant thus making the enrichment unjust. In light of the Product's packaging, ingredients list, and reasoning set forth, Judge Abrams points out that any amendment would be futile. Accordingly, she denies the Plaintiff's request for leave to amend. For the reasons he set forth, Judge Abrams grants the Defendant's motion to dismiss. The Clerk of Court is respectfully directed to terminate the motion pending at docket 14 and close the case. A full-text copy of the Court's Sept. 30, 2022 Opinion & Order is available at https://tinyurl.com/y8be53tf from Leagle.com. NEW YORK: Court Denies Bid to Certify Class in Bellin v. Zucker --------------------------------------------------------------- In the case, ROSALIND BELLIN, et al., Plaintiffs v. HOWARD ZUCKER, et al., Defendants, Case No. 19 Civ. 5694 (AKH) (S.D.N.Y.), Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York denies the Plaintiff's motion for class certification. The lawsuit is a putative class action against the State of New York and Elderserve Health, Inc. d.b.a. RiverSpring at Home. RiverSpring is a third-party contractor that provides personal care services to combination Medicare and Medicaid recipients. It does so through Managed Long Term Care Plans ("MLTCs"). Plaintiff Bellin alleges that RiverSpring and other similarly-situated MLTCs' failure to provide an appeals process for new enrollees to challenge the MLTCs' initial determination as to how many hours of care the enrollees are entitled to receive. She alleges that the absence of a right to immediate appeal violates the Due Process Clause of the Fourteenth Amendment. Under New York's statutory regime, individuals deemed eligible by New York State to receive personal care services must apply to and enroll in a MLTCs to receive care. Would-be beneficiaries may apply to as many or as few MLTCs as they desire. Upon request, MLTCs evaluate the beneficiary and determine how many hours of care they would provide if the beneficiary were to enroll in their plan. If a beneficiary disagrees with an MLTC's initial pre-enrollment determination and believes she needs more hours than offered, however, she cannot appeal that decision under the current administrative regime. Instead, she must enroll in the plan and, at least initially, receive care at an inadequate level (perhaps supplementing with additional care at her own expense). Only then can she begin the process of obtaining the additional care she believes she needs. This requires that she first seek an initial (post-enrollment) determination and wait for the MLTC to rule on the request. If successful, she will begin to receive care at the adjusted level. If the adjustment is denied, she may internally appeal to the MLTC, and if that appeal fails, she has recourse to appeal in the form of a New York State "fair hearing" under the State's Medicaid regulations. The rub with this system, and of which the Plaintiff complains, is that she is forced to accept care at an inadequate level, or to supplement with private care and pay out of pocket, between the time she enrolls in the MLTC and the time of the MLTC's decision on her "initial determination." Although a beneficiary has a right to appeal the initial determination, a successful appeal will apply retroactively only to the date of the initial (post-enrollment) determination. She has no recourse to recover monies expended during the period between her enrollment and the initial (post-enrollment) determination. Such was the case with the Plaintiff. In April 2019, she applied for care with RiverSpring. It offered to provide her with 8 hours of care, 7 days a week, a number she felt was too low. Nevertheless, the Plaintiff formally requested enrollment on May 15, 2019 and began receiving care, 8 hours per day, on June 1, 2019. She believed that she needed 24-hour care but could not appeal the initial (pre-enrollment) determination. Instead, RiverSpring required that she submit a request for increased hours, and upon RiverSpring's initial (post-enrollment) determination, if dissatisfied, Plaintiff then would have the right to an appeal, and relatedly, the right to have notice of her right to appeal. The Plaintiff did as instructed. She accepted and receiving the 8 hours of care per day that RiverSpring offered, and while awaiting RiverSpring's determination as to her request for increased hours, supplemented that care, at her expense, to obtain the additional 16 hours per day that she needed. Although she was ultimately successful in securing 24-hour care, the benefits applied retroactively only to the date of RiverSpring's initial (post-enrollment) determination on her request for increased hours, leaving her out-of-pocket for the monies expended to supplement her care between the date of enrollment and the initial (post-enrollment) determination. On July 18, 2019, the Plaintiff filed this putative class action alleging a violation of her rights under the Due Process Clause of the Fourteenth Amendment, as well as under various federal statutes governing Medicaid beneficiaries' right to appeal. She sought declaratory and injunctive relief on behalf of herself and a class of "current and future New York State Medicaid recipients who have applied or will apply for Medicaid-funded personal care services from MLTCs." She sought to enforce the class members' rights to appeal MLTCs' initial personal care hour determinations and to receive notice of those appeal rights, and to obtain an order that RiverSpring provide notice of the right to appeal and to process any such appeals. The Plaintiff now moves for class certification, proposing one main class and three subclasses as follows. Main Class: new applicants for MLTC enrollment, meant to encompass those that have been or will be affected by the challenged policy. Subclass A: New applicants to RiverSpring. Subclass B: Individuals who would have wanted, want, or will want to appeal MLTC's preenrollment initial personal care services authorizations given the opportunity to do so. Subclass C: Individuals that would have wanted, want, or will want to appeal RiverSpring's preenrollment initial personal care service authorizations given the opportunity to do so. The Plaintiff moves for certification under Rule 23(b)(2) and identifies three common legal questions. (1) whether the members of the main class and subclasses have a property right in the amount of Medicaid-funded personal care services they were, are, or will be awarded by MTLC's; (2) whether they have a right under the Due Process Clause of the Fourteenth Amendment to appeal the MLTCs' determinations of the amount of personal care services they have been awarded; and (3) whether they have a Due Process right to receive notice of a right to appeal those determinations. The Plaintiff's motion for class certification under Fed R. Civ. P. 23(b)(2) will address the common questions of whether she and proposed class members (1) have a property interest in the initial number of care service hours awarded; (2) a Due Process right to appeal that initial determination; and (3) right to notice of the right to appeal. She proposes one main class, comprised of new applicants for MLTC enrollment, meant to encompass those that have been or will be affected by the challenged policy, and three subclasses, (1) new applicants to RiverSpring; (2) individuals who would have wanted, want, or will want to appeal MLTC's preenrollment initial personal care services authorizations given the opportunity to do so; and (3) individuals that would have wanted, want, or will want to appeal RiverSpring's preenrollment initial personal care service authorizations given the opportunity to do so. The Defendants oppose certification on a number of grounds. First, they contend that the Plaintiff and the class members lack Article III standing for want of a cognizable injury. Next, they attack the proposed classes, arguing that they are substantively overbroad and fail for want of ascertainability. Finally, they argue that the Plaintiff has failed to establish that the requirements of Rule 23(a) or Rule 23(b)(2) are satisfied. Judge Hellerstein holds that the Plaintiff has Article III standing because the denial of a Due Process right, if established, is a legally cognizable injury. However, he agrees with the Defendants that the proposed classes are overbroad, and even though he may exercise his discretion to narrow the class, a class cannot be defined to satisfy the implied requirement of ascertainability. The class is not ascertainable because the potential class is defined based on subjective criteria and because identifying class members would require a mini-hearing on the merits of potential class member's claim. For the reasons he provided, Judge Hellerstein denies the motion for class certification. The parties will appear for a status conference, as scheduled, on Oct. 21, 2022, at 10:00 a.m., to discuss how the case will proceed. In advance of the conference, the parties jointly will submit an agenda and proposed schedule, noting any differences in view and stating the parties' respective positions. The Clerk of Court will terminate ECF No. 94. A full-text copy of the Court's Sept. 30, 2022 Order & Opinion is available at https://tinyurl.com/2p9an7np from Leagle.com. NISSAN NORTH: Court Narrows Claims in Class Suit Over Defective FEB ------------------------------------------------------------------- In the case, IN RE: NISSAN NORTH AMERICA, INC. LITIGATION, Case No. 3:19-cv-00843 (M.D. Tenn.), Judge William L. Campbell, Jr., of the U.S. District Court for the Middle District of Tennessee, Nashville Division, grants in part and denies in part Nissan N.A.'s Motion to Dismiss Portions of the First Amended Class Action Complaint. The case arises out of an alleged defect in certain Nissan Vehicles. The Plaintiffs allege that these vehicles contain a defect in their Forward Emergency Braking system ("FEB") which causes the vehicles "to stop without warning during normal and intended vehicle operation, thereby posing an unreasonable safety hazard to drivers, passengers, other motorists, and pedestrians." The Plaintiffs allege that the Defendants knew of the defect and yet continued to market their vehicles as "safe and reliable." They state that the Defendants failed to recall vehicles or otherwise take appropriate action to remedy the defect after being made aware of the issue through multiple channels, including consumer complaints, product testing, and dealership repair orders. The Plaintiffs bring a class action complaint on behalf of putative class members in 13 states alleging fraudulent omission (Count 1), breach of express warranty (Count 2), breach of implied warranty (Count 3), violation of the Magnuson-Moss Warranty Act (Count 4), unjust enrichment (Count 5), and violations of consumer protection and trade practice statutes in California (Counts 6 and 7), Florida (Count 8), Georgia (Count 9), Illinois (Count 10), Massachusetts (Count 11), Michigan (Count 12), Missouri (Count 13), North Carolina (Count 14), New Jersey (Count 15), New York (Count 16), Ohio (Count 17), Pennsylvania (Count 18), and Texas (Count 19). Nissan N.A. moves to dismiss certain claims by the Plaintiffs from California, Florida, Georgia, Illinois, Michigan, North Carolina, New Jersey, New York, Ohio, Pennsylvania, Mississippi, and Texas. Nissan Motor Co., Ltd. filed a separate motion to dismiss which adopted Nissan N.A.'s motion and presented additional grounds for relief. As an initial matter, the Court notes that Michigan Plaintiff Roger Brueckman and Mississippi Plaintiff Marry Danner voluntarily dismissed their claims. Accordingly, the portions of the motion to dismiss relative to Danner and Brueckman's claims are moot. Judge Campbell grants in part and denies in part the Defendants' Motions to Dismiss. He dismisses (i) the express warranty claims (Count 2) of all the Plaintiffs are dismissed as to Nissan M.C.; (ii) the implied warranty claims (Count 3) of the Plaintiffs from Florida, Georgia, Illinois, North Carolina, New York, and Ohio; (iii) Plaintiff Wright's claim under the Georgia's Fair Business Practices Act (Count 9); (iv) the fraudulent omission claims (Count 1) of Plaintiff Garneau (California) and the Florida Plaintiffs; and (v) Plaintiff Fowler's claim under the North Carolina Unfair and Deceptive Trade Practices Act (Count 14). He denies the Defendants' motions as to all other claims. Among other things, Judge Campbell finds that (i) the Plaintiffs did not respond to Nissan M.C.'s motion to dismiss all express warranty claims against it on grounds that only Nissan N.A. warranted the vehicles; (ii) absent opposition to the Defendants' motion to dismiss the implied warranty claims of the Plaintiffs from California, Florida, Georgia, Illinois, North Carolina, New York, and Ohio on grounds that they have not established vertical privity with the Defendants, the motion should be granted; (iii) within the Sixth Circuit, several district courts have rejected Plaintiff Wright's argument that Fed. R. Civ. P. 23 preempts the statutory language and permits the filing of class actions in federal court and enforced the statutory bars; (iv) the common law fraud claim of Plaintiff Garneau is barred by the economic loss doctrine under California law; and (v) the economic loss doctrine bars Plaintiff Fowler's NCUDTPA claim. A full-text copy of the Court's Sept. 30, 2022 Memorandum is available at https://tinyurl.com/ya5ndcsa from Leagle.com. OLIN CORP: Evidentiary Hearing on Class Certification Sought ------------------------------------------------------------ In the class action lawsuit captioned as Miami Products & Chemical Co. v. Olin Corporation, et al., Case No. 1:19-cv-00385-EAW-MJR D (W.D.N.Y.), the Defendants Occidental Chemical Corp., Westlake Chemical Corp., Shintech Incorporated, K.A. Steel Chemicals, Inc., Olin Corp., and Formosa Plastics Corp., USA ask the Court to enter an order for an evidentiary hearing on Direct Purchaser Plaintiffs' motion for class certification to be held at a time and place convenient for the Court. Olin is an American manufacturer of ammunition, chlorine, and sodium hydroxide. A copy of Defendants' motion dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3Ez1Y5p at no extra charge.[CC] The Counsel for the Defendant Westlake Chemical Corp., are: William R.H. Merrill, Esq. James T. Southwick, Esq. Elizabeth B. Hadaway, Esq. Justin C. Kenney, Esq. SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, TX 77002-5096 Telephone: (713) 651-9366 E-mail: bmerrill@susmangodfrey.com jsouthwick@susmangodfrey.com ehadaway@susmangodfrey.com jkenney@susmangodfrey.com - and - Terrance P. Flynn, Esq. HARRIS BEACH PLLC Larkin at Exchange 726 Exchange Street, Suite 1000 Buffalo, NY 14210 Telephone: (716) 200-5050 E-mail: tflynn@harrisbeach.com The Counsel for Defendant Occidental Chemical Corp., are: Steven E. Bizar, Esq. George G. Gordon, Esq. Julia Chapman, Esq. John McClam, Esq. David Costigan, Esq. Agnese Nadalini, Esq. DECHERT LLP 2929 Arch Street Philadelphia, PA 19104 Telephone: (215) 994-4000 E-mail: steven.bizar@dechert.com george.gordon@dechert.com julia.chapman@dechert.com john.mcclam@dechert.com david.costigan@dechert.com agnese.nadalini@dechert.com - and - Timothy J. Graber, Esq. Brian P. Crosby, Esq. Melissa M. Morton, Esq. GIBSON, MCASKILL & CROSBY, LLP 69 Delaware Avenue, Suite 900 Buffalo, NY 14202 Telephone: (716) 856-4200 E-mail: tgraber@gmclaw.com bcrosby@gmclaw.com mmorton@gmclaw.com The Counsel for Defendant Formosa Plastics Corp., USA, are: Alan M. Unger, Esq. Tom A. Paskowitz, Esq. Peter J. Mardian, Esq. Melissa R. Verne, Esq. SIDLEY AUSTIN LLP 787 Seventh Ave. New York, NY 10019 Telephone: (212) 839-5300 E-mail: aunger@sidley.com tpaskowitz@sidley.com pmardian@sidley.com mverne@sidley.com The Counsel for Defendant Shintech Incorporated, are: John DeQ. Briggs, Esq. Richard B. Dagen, Esq. Evan R. Johnson, Esq. AXINN, VELTROP & HARKRIDER LLP 1901 L Street NW Washington, DC 20036 Telephone: (202) 912-4700 E-mail: jbriggs@axinn.com rdagen@axinn.com ejohnson@axinn.com - and - Angela M. Farren, Esq. AXINN, VELTROP & HARKRIDER LLP 114 West 47th Street New York, NY 10036 Telephone: (212) 728-2204 E-mail: afarren@axinn.com - and - Randall D. White, Esq. CONNORS LLP 1000 Liberty Building 424 Main Street Buffalo, NY 14202 Telephone: (716) 852-5533 E-mail: rdw@connorsllp.com ONPOINT COMMUNITY: Parties Must File Case Mng't Plan by Oct. 18 --------------------------------------------------------------- In the class action lawsuit captioned as Granados v. OnPoint Community Credit Union, Case No. 3:21-cv-00847 (D. Or.), the Hon. Judge Michael H. Simon entered an order that the parties are directed to confer and not later than October 18, 2022 jointly file a proposed case management plan, including deadlines for: (1) the filing of a motion for class certification, (2) the close of fact discovery, and (3) the filing of dispositive motions if any, among other things. If the parties cannot reach agreement after a thorough conferral process, each side may include in the joint filing their own respective proposed deadlines and a brief explanation of why the opposing side's proposal is unacceptable, says Judge Simon. The nature of suit states Other Statutes - Preauthorized transfers.[CC] OPTIMUM POINT: Gordillo Sues to Recover Unpaid Overtime Wages ------------------------------------------------------------- Juana V. Gordillo, and other similarly situated individuals v. Optimum Point of Care Physicians Group, LLC, Lloyd Leiva, and Nilsa Leiva, individually, Case No. 8:22-cv-02304 (M.D. Fla., Oct. 6, 2022), is brought to recover money damages for unpaid overtime wages under the laws of the United States, pursuant to the Fair Labor Standards Act. The Plaintiff always worked more than 40 hours weekly, but she was paid for only 40 regular hours. The Plaintiff was not paid for overtime hours. The Defendants did not maintain a time-keeping method. The Plaintiff did not clock in and out, but the Defendants were able to track the Plaintiff's hours. Therefore, the Defendants willfully failed to pay the Plaintiff overtime hours at the rate of time and one-half her regular rate for every hour that she worked over 40, in violation of the FLSA, says the complaint. The Plaintiff was employed by the Defendant as a patient and referral coordinator from May 04, 2020, through April 29, 2022. Optimum Point of Care is a private health care clinic providing primary care to the community in Bradenton, Florida.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com PATTERN ENERGY: Hearing on Pending Class Cert Bid Set for Dec. 13 ----------------------------------------------------------------- In the lawsuit re Pattern Energy Group Inc. Securities Class Action, Case No. 1:20-cv-00275 (D. Del.), the Hon. Judge Jennifer L. Hall entered an order a hearing on the pending motion for class certification is scheduled for December 13, 2022. The suit alleges violation of the Securities Exchange Act. Pattern Energy is an American company that develops, owns and operates utility scale wind and solar power facilities in the United States, Canada, and Japan.[CC] POWER PARAGON: Burns Class Cert Hearing Continued to Feb. 6, 2023 ----------------------------------------------------------------- In the class action lawsuit captioned as PATRICK BURNS, in his individual and representative capacities, v. POWER PARAGON, INC. and DOES 1 through 10, inclusive, Case No. 8:21-cv-01452-CJC-JDE (C.D. Cal.), the Hon. Judge Cormac J. Carney entered a further order continuing hearing on motion for class certification: The hearing on Plaintiff's motion for class certification presently set for January 30, 2023 at 1:30 p.m. is continued to February 6, 2023 at 1:30 p.m. Power Paragon provides engineering, development, manufacture, and integration of power conversion and distribution systems. A copy of the Court's order dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3Cw6Wxk at no extra charge.[CC] QUEST DIAGNOSTICS: Court Certifies Class of Patient Service Reps ---------------------------------------------------------------- In the class action lawsuit captioned as PAMELA STEWART and ZULEKHA ABDUL, individually and on behalf of all similarly situated employees of in the State of California, v. QUEST DIAGNOSTICS CLINICAL LABORATORIES, INC. and DOES 1 THROUGH 50, inclusive, Case No. 3:19-cv-02043-RBM-DDL (S.D. Cal.), the Hon. Judge entered an order: 1. granting Quest's request for judicial notice; 2. denying Quest's motion to strike the expert declarations of David Neumark and Jon Krosnick; and 3. granting in part and denying in part the Plaintiff's motion for class certification: The Court certifies the following class: "All of Defendant's non-exempt California Patient Service Representatives who were not compensated with one hour of pay for all instances where they did not receive a duty- free and uninterrupted 10 minute rest period consistent with California law, any time between September 13, 2015, and the date of judgment." The Court further appoints Plaintiff Pamela Stewart as class representative and GrahamHollis APC as class counsel; and 4. denying Quest's motion to strike Plaintiffs' PAGA allegations . Quest is a clinical laboratory company and the world's leading provider of diagnostic information services. Quest employs phlebotomists in "thousands of patient access points" across the country, both in physician offices operated by Quest's clients, and in Patient Service Centers ("PSC") owned and operated by Quest. A copy of the Court's order dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3Cpb5mr at no extra charge.[CC] RITE AID: Faces Prescott Suit Over Deceptive Lidocaine Patches -------------------------------------------------------------- STEVEN PRESCOTT, individually and on behalf of all others similarly situated v. RITE AID CORPORATION, Case No. 5:22-cv-05798-VKD (N.D. Cal., Oct. 6, 2022) alleges that Rite Aid mislabels "Maximum Strength" Lidocaine Patches in violation of California's False Advertising Law, California's Unfair Competition Law, and California's Consumers Legal Remedies Act. The Defendant's "Maximum Strength" front-label representation is uniform among the Products regardless of composition. The Defendant mislabels the Products to deceive all reasonable consumers, including him, to purchase the Products, the Plaintiff contends. The Plaintiff purchased 6-count packages of Rite Aid Maximum Strength Pain Relief Lidocaine Patches for approximately $12.90 plus tax. The Defendant sells, markets, and distributes Rite Aid Maximum Strength Pain Relief Lidocaine Patch in five-count packages and six-count packages. Lidocaine belongs to the family of medicines called local anesthetics. This medicine prevents pain by blocking the signals at the nerve endings in the skin.[BN] The Plaintiff is represented by: Jonathan Shub, Esq. Kevin Laukaitis, Esq. SHUB LAW FIRM LLC 134 Kings Highway E, 2nd Floor Haddonfield, NJ 08033 Telephone: (856) 772-7200 Facsimile: (856) 210-9088 E-mail: jshub@shublawyers.com klaukaitis@shublawyers.com - and - Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd, Ste 409 Great Neck, NY 11021-3104 Telephone: (516) 268-7080 Facsimile: (516) 234-7800 E-mail: spencer@spencersheehan.com - and - Nick Suciu III, Esq. BARBAT MANSOUR SUCIU & TOMINA PLLC 6905 Telegraph Rd., Suite 115 Bloomfield Hills, MH 48301 Telephone: (313) 303-3472 E-mail: nicksuciu@bmslawyers.com - and – Trenton R. Kashima, ESq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 401 West C St., Suite 1760 San Diego, CA 92101 Telephone: (714) 651-8845 E-mail: tkashima@milberg.com - and – Charles E. Schaffer, Esq. David C. Magagna Jr. Esq. LEVIN, SEDRAN & BERMAN, LLP 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 Facsimile: (215) 592-4663 E-mail: cschaffer@lfsblaw.com dmagagna@lfsblaw.com SEALED AIR: $12.5MM Settlement to be Heard on Jan. 20, 2023 ----------------------------------------------------------- Robbins Geller Rudman & Dowd LLP issued a statement regarding the Sealed Air Securities Litigation: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UA LOCAL 13 & EMPLOYERS GROUP INSURANCE FUND, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. SEALED AIR CORPORATION and WILLIAM G. STIEHL, Defendants. Civil Action No. 1:19-cv-10161-LLS-RWL CLASS ACTION SUMMARY NOTICE TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR ACQUIRED THE COMMON STOCK OF SEALED AIR CORPORATION ("SEALED AIR") DURING THE PERIOD FROM NOVEMBER 17, 2014 TO JUNE 20, 2019, INCLUSIVE YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Southern District of New York, that a hearing will be held on January 20, 2023, at 2:00 p.m., before the Honorable Louis L. Stanton, United States District Judge, at the United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10007, for the purpose of determining: (1) whether the proposed Settlement of the above-captioned Action, as set forth in the settlement agreement reached between the parties, consisting of Twelve Million Five Hundred Thousand Dollars ($12,500,000.00) in cash, should be approved as fair reasonable, and adequate to the Members of the Class; (2) whether the release by Class Members of claims as set forth in the settlement agreement should be authorized; (3) whether the proposed plan to distribute the settlement proceeds (the "Plan of Allocation") is fair, reasonable, and adequate; (4) whether the application by Plaintiffs' counsel for an award of attorneys' fees and expenses and any awards to Plaintiffs pursuant to 15 U.S.C. §78u-4(a)(4) should be approved; and (5) whether the Judgment, in the form attached to the settlement agreement, should be entered. Please note that the date, time and location of the settlement hearing are subject to change without further notice. If you plan to attend the hearing, you should check the docket or contact Lead Counsel (identified below) to be sure that no change to the date, time or location of the hearing has been made. IF YOU PURCHASED OR ACQUIRED ANY OF THE COMMON STOCK OF SEALED AIR DURING THE PERIOD FROM NOVEMBER 17, 2014 TO JUNE 20, 2019, INCLUSIVE, YOUR RIGHTS WILL BE AFFECTED BY THE SETTLEMENT OF THIS LITIGATION. If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action ("Notice") and a copy of the Proof of Claim and Release form ("Proof of Claim"), you may obtain copies by writing to Sealed Air Securities Litigation, Claims Administrator, c/o Gilardi & Co. LLC, P.O. Box 6181, Novato, CA 94948-6181, or on the internet at www.SealedAirSecuritiesLitigation.com. If you are a Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim by mail (postmarked no later than December 27, 2022) or submitted electronically (received no later than December 27, 2022), establishing that you are entitled to recovery. Unless the deadline is extended, your failure to submit your Proof of Claim by the above deadline will preclude you from receiving any payment from the Settlement. If you are a Class Member and you desire to be excluded from the Class, you must submit a request for exclusion such that it is postmarked no later than December 30, 2022, in the manner and form explained in the detailed Notice, referred to above. All Members of the Class who do not timely and validly request exclusion from the Class will be bound by any judgment entered in the Action pursuant to the Stipulation and Agreement of Settlement. Any objection to the Settlement, the Plan of Allocation, or the fee and expense application must be mailed to each of the following recipients, such that it is received no later than December 30, 2022: CLERK OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DANIEL PATRICK MOYNIHAN UNITED STATES COURTHOUSE 500 Pearl Street New York, NY 10007 Lead Counsel: ROBBINS GELLER RUDMAN & DOWD LLP ROBERT M. ROTHMAN 58 South Service Road, Suite 200 Melville, NY 11747 Defendants' Counsel: HOLWELL SHUSTER & GOLDBERG LLP VINCENT G. LEVY 425 Lexington Avenue New York, NY 10017 COOLEY LLP WILLIAM SCHWARTZ 55 Hudson Yards New York, NY 10001 PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE OR DEFENDANTS REGARDING THIS NOTICE. If you have any questions about the Settlement, you may contact Lead Counsel at the address listed above or by an e-mail to Lead Counsel at settlementinfo@rgrdlaw.com. Copies of certain pleadings and other documents filed in the Action can also be found at www.SealedAirSecuritiesLitigation.com. DATED: September 14, 2022 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SELECT PORTFOLIO: Mendes Suit Removed to D. Massachusetts --------------------------------------------------------- The case styled as Lynn M. Mendes, Jason P. Mendes, on behalf of themselves and all others so similarly situated v. Select Portfolio Servicing, U.S. Bank Trust National Association, not in its individual capacity but solely as Collatreal Trust Trustee of First Key Master Funding 2021-A Collateral Trust, Case No. 2282cv0092, was removed to the U.S. District Court for the District of Massachusetts on Oct. 6, 2022. The District Court Clerk assigned Case No. 1:22-cv-11704-PGL to the proceeding. The nature of suit is stated as Real Property: Foreclosure. Select Portfolio Servicing, Inc. -- https://www.spservicing.com/ -- is a loan servicing company founded in 1989 as Fairbanks Capital Corp. with operations in Salt Lake City, Utah and Jacksonville, Florida.[BN] The Plaintiffs are represented by: Todd S. Dion, Esq. LAW OFFICE OF TODD S. DION 15 Cottage Avenue, Suite 202 Quincy, MA 02169 Phone: (401) 965-4131 Fax: (401) 535-1231 Email: toddsdion@msn.com The Defendants are represented by: Samuel C. Bodurtha, Esq. Donald W. Seeley, Jr., Esq. HINSHAW & CULBERTSON LLP 53 State Street, 27th Floor Boston, MA 02109 Phone: (617) 213-7000 Fax: (617) 213-7001 Email: sbodurtha@hinshawlaw.com dseeley@hinshawlaw.com SESEN BIO: Nov. 8 Final Settlement Approval Hearing Set ------------------------------------------------------- Sesen Bio, Inc. (the "Company"), on Sept. 6, 2022, announced that the U.S. District Court for the District of Massachusetts issued an order on September 2, 2022 granting preliminary approval of the proposed settlement of the previously disclosed consolidated derivative lawsuits captioned In re Sesen Bio, Inc. Derivative Litigation, Lead Case No. 1:21-cv-11538, the derivative lawsuit captioned Tang v. Sesen Bio, Inc., et al., Case No. 2281-cv-00135 and other potential related derivative claims (collectively, the "Derivative Litigation"), in accordance with the Stipulation of Settlement that the Company disclosed in a Current Report on Form 8-K dated August 30, 2022. The court has set a final settlement approval hearing for November 8, 2022 at 2:00 p.m. local time. Copies of (i) the Notice of Pendency and Proposed Settlement of Stockholder Derivative Actions and (ii) the Stipulation of Settlement related to the Derivative Litigation are filed with this Current Report on Form 8-K, attached as Exhibit 99.1 and 99.2, respectively, and incorporated herein by reference. The terms of the proposed settlement are more fully described in the Company's Current Report on Form 8-K dated August 30, 2022. As disclosed on August 17, 2022, the Company has also filed a Stipulation and Agreement of Settlement to settle the previously disclosed consolidated shareholder class action captioned In re Sesen Bio, Inc. Securities Litigation, Master File No. 1:21-cv-07025-AKH (the "Securities Litigation"), which is also subject to court approval. A hearing on the motion for preliminary approval is scheduled in the U.S. District Court for the Southern District of New York on October 4, 2022 at 2:00 p.m. local time. In May 2022, the Company initiated a process to review potential strategic alternatives with the goal of maximizing shareholder value. The Company believes that the settlements of the Derivative Litigation and the Securities Litigation, if approved, have the potential to enable a favorable strategic transaction by increasing the range and attractiveness of strategic alternatives that the Company is able to consider. SHOE SHOW: Parties Seek Initial Approval of Settlement Class ------------------------------------------------------------ In the class action lawsuit captioned as SARAH SMITH, MICHAEL CRISCO, and 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 Parties ask the Court to enter an order: 1. preliminarily approving the Settlement Class: "All persons who participated in the Plan at any time during the Class Period, including any Beneficiary of a deceased person who participated in the Plan at any time during the Class Period, and any Alternate Payee of a person subject to a Qualified Domestic Relations Order who participated in the Plan at any time during the Class Period;" Excluded from the Settlement Class are Defendants and their Beneficiaries; 2. preliminarily appointing the Named Plaintiffs as Class Representatives for the Settlement Class and appointing Fitzgerald, Hanna & Sullivan, PLLC as Class Counsel for the Settlement Class; and 3. preliminarily approving the proposed Settlement Agreement and establish a Qualified Settlement Fund; This litigation was commenced on September 3, 2020. It alleges that the Defendants breached their duties under ERISA by offering unreasonably priced investment options and allowing excessive compensation to be paid to service providers in connection with the Shoe Show, Inc. Retirement Savings Plan. The parties mediated this case with Brent Powell, an experienced attorney and mediator. After a full day of mediation and then further discussions, the case was resolved in principle on August 3, 2022. The Defendants join in the relief requested but deny the averments, allegations, and claims made by the Plaintiffs. As is set forth in the Settlement Agreement: -- the Plaintiffs counsel will receive a 30% for their work on this matter, which totals $90,000. -- the Plaintiffs will be reimbursed for expert costs of $20,000. Additionally -- the Plaintiffs will cause to be paid from the $330,000 a fee for the settlement administration to Angeion Group, the Settlement Administrator, in a total of $24,990. -- Each of the named Plaintiffs will receive a Case Contribution Award of $2,500 each. Any additional costs, including the filing fee from this matter and any cost overruns, will be borne by the Plaintiffs’ counsel and not by the Settlement Class. 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 Plaintiffs' motion to certify class dated Sept. 29, 2022 is available from PacerMonitor.com at https://bit.ly/3fT42uU at no extra charge.[CC] The Plaintiffs are represented by: Andrew L. Fitzgerald, Esq. FITZGERALD HANNA & SULLIVAN, PLLC 119 Brookstown Ave., Suite 402 Winston Salem, NC 27101 E-mail: andy@fhslitigation.com SIGNATURE LANDSCAPE: Response in Support of Class Cert Bid Extended ------------------------------------------------------------------- In the class action lawsuit captioned as Garcia Valdez v. Signature Landscape, LLC, Case No. 2:22-cv-02276 (D. Kan.), the Hon. Judge Toby Crouse entered an order granting consent motion for extension of time to file Response as to memorandum in support of class certification motion. The Response deadline is Oct. 31, 2022, says Judge Crouse. The suit alleges violation of the Fair Labor Standards Act. Signature Landscapes is a family-owned landscaping and snow removal service provider located in Valders, Wisconsin.[CC] SIGNIFY HEALTH: Faces Lifshitz Suit Over Proposed CVS Merger ------------------------------------------------------------ PHIL LIFSHITZ, individually and on behalf of all others similarly situated, Plaintiff v. SIGNIFY HEALTH, INC.; MATTHEW S. HOLT; KYLE B. PETERSON; BRANDON H. HULL; KEVIN M. MCNAMARA; ALBERT A. NOTINI; ARNOLD GOLDBERG; KYLE ARMBRESTER; TAJ J. CLAYTON; VIVIAN E. RIEFBERG; and HEATHER DIXON, Defendants, Case No. 1:22-cv-08564 (S.D.N.Y., Oct. 07, 2022) alleges violation of the Securities Exchange Act of 1934, arising out of the Defendants' attempt to sell the Company to CVS Pharmacy, Inc. ("CVS") through CVS's subsidiary Noah Merger Sub, Inc. ("Merger Sub") (the "Proposed Transaction"). According to the complaint, on September 5, 2022, Signify announced that it had entered into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which, each Signify stockholder will receive $30.50 in cash for each share of Signify common stock they own. On September 30, 2022, Signify filed a Schedule 14A Definitive Proxy Statement (the "Proxy") with the SEC. The Proxy is materially deficient and misleading because, inter alia, it fails to disclose material information regarding Signify management's financial projections and the financial analyses that support the fairness opinions provided by the Company's financial advisors Goldman Sachs & Co. LLC ("Goldman Sachs") and Deutsche Bank Securities Inc. ("Deutsche Bank"). Without additional information, the Proxy is materially misleading in violation of the federal securities laws, says the suit. Signify Health, Inc. operates as a health care technology company. The Company offers healthcare platform that leverages advanced analytics, technology, and nationwide healthcare provider networks to create and power value-based payment programs. [BN] The Plaintiff is represented by: Michael Rogovin, Esq. WEISS LAW 476 Hardendorf Ave. NE Atlanta, GA 30307 Telephone: (404) 692-7910 Facsimile: (212) 682-3010 Email: mrogovin@weisslawllp.com -and- Michael McKay, Esq. MCKAY LAW 5635 N. Scottsdale Road Suite 170 Scottsdale, AZ 85250 Telephone: (480) 681-7000 Facsimile: (480) 348-3999 Email: mmckay@mckaylaw.us SINERGIA INC: Sarr Bid for Collective Certification Granted in Part ------------------------------------------------------------------- In the class action lawsuit captioned as ADAM SARR, on behalf of himself, FLSA Collective Plaintiffs, and the Class, v. SINERGIA, INC., and DONALD LASH, Case No. 1:22-cv-03610-VEC (S.D.N.Y.), the Hon. Judge Valerie Caproni entered an order granting in part the Plaintiff's motion for collective certification. The Court conditionally certifies a collective of direct support professionals who worked at Sinergia at any time on or after May 4, 2019. The Clerk of Court is respectfully to terminate the open motion at docket entry 26. This is an action brought by the Plaintiff alleged violations of the Fair Labor Standards Act (FLSA), and New York Labor Law (NYLL). The Plaintiff Adam Sarr was employed as a direct support professional by Sinergia, a nonprofit organization dedicated to helping "people with disabilities and underserved people with various limitations" in New York City, from September 2020 to November 2021. Sinergia operates as a non-profit organization. A copy of the Court's order dated Oct. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3fX1qMs at no extra charge.[CC] SINGTEL OPTUS: Australian Regulators Open Probe Amid Suit Threats ----------------------------------------------------------------- Byron Kaye, writing for Reuters, reports that two Australian regulators said on Oct. 11 they have opened investigations into Optus, the country's No. 2 telecoms provider, after a breach of its systems resulted in the theft of personal data from up to 10 million accounts. The probes only add to headaches for Optus, which disclosed the breach on Sept. 22 and has since come under heavy fire from the government and the public for not preventing the massive cyberattack. The Office of the Australian Information Commissioner (OAIC) said it was investigating whether the Singapore Telecommunications Ltd-owned (STEL.SI) company took reasonable steps to protect customer data and comply with privacy laws. The Australian Communications and Media Authority (ACMA) said it was investigating whether Optus met its industry obligations as a telecommunications provider in terms of the keeping and disposing of personal data. Amid the widening fallout, the federal government has flagged it will overhaul data security laws to force firms which have had a cyberattack to notify banks about customers who may be compromised. Several law firms are also considering filing class action lawsuits. The OAIC said in a statement if it finds that "interference with the privacy of one or more individuals has occurred", it may force Optus to take steps to ensure the breach cannot be repeated. The agency added that it finds there was a breach of Australian privacy law, it can seek civil penalties of up to A$2.2 million ($1.4 million) per contravention. ACMA Chair Nerida O'Loughlin said in a statement that failure by telecommunications providers to safeguard customer information "has significant consequences for all involved". Australian Competition and Consumer Commission Chair Gina Cass-Gottlieb told a parliamentary hearing the regulator was receiving 600 calls a day from people concerned about the Optus breach, although few had been scammed as a result. Optus said in a statement that it had received formal notices of investigation from both regulators and that it would fully engage with them. [GN] SPOKEO INC: Osuna Sues Over Deceptive and Fictitious Advertising ---------------------------------------------------------------- Jesus Osuna and Dana Flory, on behalf of themselves and all others similarly situated v. SPOKEO INC., a Delaware Corporation, and DOES 1- 50, inclusive, Case No. 2:22-cv-07310 (C.D. Cal., Oct. 6, 2022), is brought to seeks monetary damages, restitution, declaratory and injunctive relief from the Defendant arising from its own deceptive business practice of advertising fictitious "original" prices and corresponding phantom discounts on its website, spokeo.com, where it sells electronic reports of personal information (such as an individual's contact information and job history) via its search and reverse lookup service. False reference pricing occurs when a seller fabricates a false "original" price for a product and then offers that product at a substantially lower price under the guise of a sale. The resulting artificial price disparity misleads consumers into believing the product they are buying has a higher market value, and it induces them into purchasing the product. This practice artificially inflates the true market price for these products by raising consumers' internal reference price and in turn the value consumers ascribe to these products (i.e., demand). Consequently, false reference pricing schemes enable retailers, like Defendant, to sell products above their true market price and value--and consumers are left to pay the price. The following example of a hypothetical DVD seller, which is parallel to Defendant's deceptive business practice, illustrates the illegal false reference pricing scheme and its attendant harm to consumers. A seller knows it can sell a particular DVD at $5.00, which represents both the market price and the price at which the seller could regularly offer the DVD and make a profit. Instead, however, the seller creates an inflated "original" price for the DVD of $100.00 and advertises the DVD as "on sale" at 90% off rendering the "sale" price of the DVD $10.00. When a consumer purchases the DVD, he presumes he got a "good deal" on a DVD previously sold--i.e., valued by others in the market--at an "original" price of $100.00. The consumer's presumption and purchase stem directly from the seller's purposeful deception. It is well-established that false reference pricing violates state and federal law. Even so, sellers, including the Defendant, continue to use the tactic because they know they will be able to increase sales and profits by tricking consumers into making purchasing decisions based on the advertised reference prices. The information available to consumers varies for different types of products; nonetheless, consumers frequently lack full information about products and as a result often use information from sellers to make purchase decisions. Through its false and misleading marketing, advertising, and pricing scheme, the Defendant violated, and continues to violate, California and Federal law, which prohibit the advertisement of goods for sale discounted from false former prices. California and Federal law also prohibit the dissemination of misleading statements about the existence and amount of price reductions. Specifically, Defendant violated and continues to violate: California's Unfair Competition Law, California's False Advertising Law, California Consumer Legal Remedies Act. The Plaintiffs bring this action on behalf of themselves and other similarly situated consumers who have purchased one or more products through spokeo.com that were deceptively represented as discounted from a false reference price, says the complaint. The Plaintiffs purchased one or more products through spokeo.com. The Defendant operates the spokeo.com website, and advertises, markets, distributes, and/or sells electronic reports in California and throughout the United States.[BN] The Plaintiff is represented by: Todd D. Carpenter, Esq. Scott G. Braden, Esq. LYNCH CARPENTER LLP 1350 Columbia Street, Ste. 603 San Diego, CA 92101 Phone: 619.762.1910 Facsimile: 619.756.6991 Email: todd@lcllp.com scott@lcllp.com STERLING INFOSYSTEMS: Forestal FCRA Suit Removed to S.D. Florida ---------------------------------------------------------------- The case styled as Fernandez Forestal, on behalf of himself and on behalf of others similarly situated v. Sterling Infosystems, Inc., was removed to the U.S. District Court for the Southern District of Florida on Oct. 6, 2022. The District Court Clerk assigned Case No. 1:22-cv-23250-XXXX to the proceeding. The lawsuit is brought over alleged violation of the Fair Credit Reporting Act. Sterling Infosystems Inc, doing business as Sterling -- https://www.sterlingcheck.com/ -- provides human resource services.[BN] The Plaintiff appears pro se. The Defendant is represented by: Kimberly A. Carabotta, Esq. SEYFARTH 1075 Peachtree St. N.E., Suite 2500 Atlanta, GA 30309 Phone: (404) 704-9690 Fax: (404) 724-1739 Email: kcarabotta@seyfarth.com T-MOBILE US: Agrees to Settle Data Breach Class Action for $350-M ------------------------------------------------------------------ Abraham Jewett, writing for Top Class Actions, reports that several companies recently agreed to pay settlements made to resolve claims they mishandled or failed to safeguard their customers' information during data breach events. Last month, T-Mobile agreed to pay $350 million in a settlement resolving claims the company failed to prevent a data breach that exposed the sensitive information of 76 million Americans. The T-Mobile data breach reportedly did not expose financial data but still compromised personally identifying information such as names, addresses, birthdates and Social Security numbers. Also last month, investment platform Robinhood agreed to a settlement that resolved allegations it failed to stop a data breach that resulted in an unauthorized party taking control of some of the customer accounts, resulting in millions of lost dollars. The plaintiffs accused Robinhood of failing to adequately respond to the data breach or set up a customer care phone number. They claim they could only contact Robinhood by email and then had to wait days or weeks to receive any response from the company. LifeBridge Health pays nearly $9.5 million to end claims it failed to protect patient information Earlier this month, LifeBridge Health agreed to pay almost $9.5 million to end allegations it failed to protect patient information during a data breach that began in September 2016 and continued for 18 months. LifeBridge disclosed in May 2018 that it had been the victim of a data breach that it says impacted 530,000 of its patients by compromising personal data such as names, Social Security numbers, and health information, among other things. PrimoHoagies settlement resolves claims that sandwich shop enabled months-long data breach In September, PrimoHoagie agreed to a settlement made to resolve claims it failed to protect its customers' data during a data breach that occurred between July 2019 and February 2020. The sandwich shop announced it had been the victim of a months-long data breach in April 2020 that enabled hackers to access private information such as names, addresses, and payment card information. At the time, PrimoHoagies offered to provide identity protection and credit monitoring services to customers who may have been affected by the data breach. SN Servicing, Mediant Communications, Presidio agree to data breach settlements Also last month, SN Servicing Corp. agreed to pay $900,000 to end claims that an October 2020 data breach against the company was due to its allegedly relaxed cybersecurity procedures. SN Servicing announced that it had been a victim of the data breach in July 2021 that led to a third party gaining unauthorized access to its customers' names, contact information and Social Security numbers, among other things. Mediant Communications, meanwhile, agreed to a class action settlement last month that resolved claims revolving around a 2019 data breach against the company. The data breach allegedly happened through the company's business email accounts and exposed sensitive investor information that Mediant Communications had gathered while working with clients. Also in September, Presidio agreed to a settlement that ended claims it negligently failed to protect the information of its current and former employees during a 2020 data breach. Tech company Presidio notified its affected current and former employees in March 2020 that it experienced a data breach after an unauthorized third party gained access to its systems. The data breach against Presidio exposed personal information provided to the company as a way for workers to verify their identities and get paid, including names and Social Security numbers. ClearBalance, Bricker & Eckler, SeaMar Community Health Centers resolve data management claims ClearBalance agreed to a class action settlement worth $2.65 million to resolve claims it mismanaged a data breach against it last year. Also known as CSI Financial Services, the company says it learned of the data breach in April 2021 after it detected and prevented an unauthorized wire transfer from a ClearBalance account. An investigation determined that the data breach occurred after an unauthorized third party accessed ClearBalance email accounts in both March and April 2021. Also in September, law company Bricker & Eckler agreed to pay $1.95 million to resolve claims revolving around a 2021 data breach that exposed the personal health information of its health system patients. The settlement benefits health system patients whose medical, personal or financial information was exposed in the data breach, which occurred in January 2021. Meanwhile, Sea Mar Community Health Centers agreed to a class action settlement worth $4.4 million in September that ends allegations surrounding a data breach between December 2020 and March 2021. The community-based health organization announced a data breach that exposed sensitive patient data such as health insurance info and Social Security numbers in October 2021. Aeries Software, Bansley & Kiener, DuPage Medical, Magellan Health settle data breach claims Also last month, Aeries Software agreed to pay $1.75 million to resolve allegations revolving around a 2019 data breach that compromised students' personal information at San Dieguito Union High School. Aeries announced that it had suffered a data breach in November 2019 that exposed the personal information of both students and parents at many California school districts, including San Diego County's San Dieguito Union High School District. Bansley & Kiener, on the other hand, agreed to pay $900,000 last month to end claims it mismanaged a 2020 data breach by allegedly waiting more than a year to inform the authorities. Also last month, DuPage Medical came to a settlement agreement worth $3 million that will put to bed allegations it failed to protect the information of its patients from being compromised during a data breach last year. Additionally, Magellan Health agreed to pay $1.43 million to resolve claims revolving around a 2019 phishing attack that exposed 273,000 patients' data. [GN] T.E.M.P.S. INC: Brent Sues Over Failure to Pay Proper Wages ----------------------------------------------------------- Kim Brent, on behalf of herself and all others similarly situated, and on behalf of the general public v. T.E.M.P.S. INC., and DOES 1 through 10, inclusive, Case No. 22STCV32766 (Cal. Super. Ct., Oct. 6, 2022), is brought against the Defendant for failure to pay proper wages in violation of the California Labor Codes. The Plaintiff claims that the Defendant failed to pay premium wages to our client and its non-exempt California employees who were denied off-duty meal and rest breaks, in violation of Labor Codes. The Plaintiff also claims that Defendant has failed to pay all overtime wages due to nonexempt employees. As a result, employees are not properly compensated for work performance in excess of 8 hours in a workday and work performed in excess of 40 hours in a workweek at a rate of no less than one and one-half times the regular rate of pay. Employees of the Defendant regularly work in excess of 8 hours in a day or more than 40 hours per week and do not receive overtime compensation at a rate of one and one half of their regular rate. The Plaintiff and the Defendant's California employees were forced to work overtime and were not paid for all hours worked including all straight time wages, and overtime wages. These failures to pay all overtime wages constitute violations of Labor Code. The Defendants failed to issue the Plaintiff and the Defendant's California employees accurately itemized wage statements, says the complaint. The Plaintiff was employed by the Defendants as a non-exempt, hourly employee in California. T.E.M.P.S. INC., is doing business in Cerritos, California and operates within the State of California.[BN] The Plaintiff is represented by: Roman Otkupman, Esq. Nidah Farishta, Esq. OTKUPMAN LAW FIRM, ALC 5743 Corsa Ave., Suite 123 Westlake Village, CA 91362 Phone: (818) 293-5623 Fax: (888) 850-1310 Email: roman@OLFLA.com Nidah@OLFLA.com TIKTOK INC: Frankel Sues Over Unlawful Use of Persona ----------------------------------------------------- Bethenny Frankel, on behalf of herself and all others similarly situated v. TIKTOK, INC., Case No. 1:22-cv-08503 (S.D.N.Y., Oct. 6, 2022), is brought against the Defendant for allowing the use of Ms. Frankel's persona, voice, content, and likeness and those of putative Class Members, in connection with the promotion of counterfeit goods. For some time, unscrupulous companies and individuals have purloined the images, voices, and content of Ms. Frankel and Class Members to sell counterfeit items through the use of TikTok's platform. Despite demands on TikTok to remove and police this corrupt conduct, TikTok has ignored such demands, and even taken countervailing positions. Aside from not being compensated, the reputation and brand of Ms. Frankel and Class Members are being damaged and tarnished through unauthorized associations with counterfeit goods and other products that they do not support. In one instance when Ms. Frankel posted a video warning consumer of the unauthorized and illegal use of her persona to sell counterfeit goods—with the intent to inform consumers of the deception—TikTok, ironically, removed Ms. Frankel's content as "abusive." Ms. Frankel never gave permission to the counterfeiters or to TikTok to unlawfully use her persona, voice, content, and/or likeness to market counterfeit products, nor was Ms. Frankel compensated in any manner for the use of her persona, voice, content, and/or likeness. The same is true for putative Class Members who have had their personas, voices, content, and likenesses used to market counterfeit products without permission or compensation. TikTok has unlawfully allowed the use of Ms. Frankel's persona, voice, content, and likeness and those of putative Class Members, in connection with the promotion of counterfeit goods resulting in irreparable harm to Ms. Frankel and Class Members. TikTok's conduct ignores Ms. Frankel's and Class Members' right of publicity and constitutes unfair competition and deceptive trade practices. Unless TikTok is enjoined, Ms. Frankel and putative Class Members will continue to suffer irreparable and permanent harm, says the complaint. The Plaintiff is a well-known American businesswoman, television personality, entrepreneur, philanthropist, and five-time best-selling author. TikTok is a major social media platform and was the most downloaded app globally in 2020 with the highest social media engagement rate per post.[BN] The Plaintiff is represented by: Jonathan M. Sedgh, Esq. MORGAN & MORGAN 850 3rd Ave, Suite 402 Brooklyn, NY 11232 Phone: (212) 738-6839 Fax: (813) 222-2439 Email: jsedgh@forthepeople.com - and - John A. Yanchunis, Esq. Jean Sutton Martin, Esq. Ryan J. McGee, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, Florida 33602 Phone: (813) 223-5505 Email: jyanchunis@forthepeople.com jeanmartin@forthepeople.com rmcgee@forthepeople.com TRANSPERFECT TRANSLATIONS: Loses Bid to Dismiss Metcalf Labor Suit ------------------------------------------------------------------ In the case, MICHELE METCALF and HANNAH LAWSON, individually and on behalf of all others similarly situated, Plaintiffs v. TRANSPERFECT TRANSLATIONS INTERNATIONAL, INC., Defendant, Case No. 19 Civ. 10104 (ER) (S.D.N.Y.), Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York enters an Opinion and Order: (1) denying the Defendant's motion to dismiss under the Class Action Fairness Act of 2005 ("CAFA"); and (2) dismissing the Plaintiffs' New York Labor Law ("NYLL") Section 195(3) claims for failure to adequately plead standing without prejudice. Plaintiffs Metcalf and Lawson brought the putative class action alleging that TransPerfect violated various provisions of the NYLL. In brief, the claims concern overtime pay that TransPerfect allegedly failed to pay the Plaintiffs. The Plaintiffs brought the action on behalf of themselves and all of TransPerfect's "salaried employees being compensated at less than $1,125 per week" who worked overtime in its New York City office between Dec. 31, 2018, and Jan. 13, 2020. Metcalf and Lawson each worked at that office for various months during 2019. Both earned a weekly salary of less than $1,125, and regularly worked more than forty hours a week. Metcalf is a citizen of California who worked for TransPerfect from approximately November 2015 to September 2019. She held various roles during that period. In January 2018, Metcalf transferred to TransPerfect's New York office where she earned an annual salary of $51,000, which amounted to approximately $980 per week. Later that year, in November 2018, she was promoted to Senior Client Services Executive with an annual salary of $56,000, which was approximately $1,077 per week. Metcalf held that position until June 2019. During her time working in TransPerfect's New York office, she generally worked over 50 to 55 hours per week. Lawson is a resident of Brooklyn, New York. She worked in TransPerfect's New York office from approximately June 18, 2018, to Oct. 9, 2019. While she initially started as a Project Coordinator earning $43,000 per year, she was promoted in December 2018, at which point she began earning $980 per week. Lawson maintained her role as Project Manager until at least April 7, 2019. During this time period, she worked an average of 45 hours weekly. In addition to Metcalf and Lawson, TransPerfect, a translation services company that is citizen of Delaware and New York, employed at least one hundred other salaried employees in its New York office. They each worked overtime and earned less than $1,125 per week during the proposed class period. On Aug. 18, 2019, Metcalf initiated the action by filing a complaint in the District Court for the Central District of California. She asserted diversity, pursuant to 28 U.S.C. Section 1332(a), as the basis for subject matter jurisdiction. On Oct. 23, 2019, the parties submitted a joint stipulation to transfer the case to the Southern District of New York pursuant to 28 U.S.C. Section 1404(a). The federal court in California granted that and the case was transferred to this District. On Nov. 15, 2019, TransPerfect filed a motion to dismiss the Complaint on the grounds that there was no subject matter jurisdiction because Metcalf had not sufficiently alleged the amount in controversy exceeded $75,000. Metcalf subsequently amended her Complaint on Dec. 19, 2019. The First Amended Complaint ("FAC") added Lawson as a named Plaintiff and additional TransPerfect entities as Defendants. It otherwise asserted substantially the same claims and once again asserted diversity jurisdiction. On Dec. 10, 2019, TransPerfect filed a letter with the Court arguing that the addition of Lawson to Metcalf's FAC divested the Court of diversity jurisdiction because both Lawson and TransPerfect are New York citizens. The Plaintiffs then filed the SAC on Jan. 13, 2020, asserting jurisdiction based on CAFA. The SAC alleges that the amount in controversy exceeds $5 million, including the individual claims of a proposed class of more than 100 individuals. On Jan. 27, 2020, TransPerfect moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim. In that motion, it did not contest that the amount in controversy threshold for CAFA jurisdiction was met. Rather, it argued that exceptions to the exercise of CAFA jurisdiction applied to the case. On Nov. 30, 2020, the Court denied TransPerfect's motion to dismiss for lack of subject matter jurisdiction and granted its motion to dismiss for failure to state a claim against any "joint employers." Accordingly, all corporate entities besides TransPerfect Translations, Inc., were dismissed. Following a period of discovery and settlement discussions, TransPerfect subsequently filed the instant motion to dismiss on Feb. 25, 2022, this time alleging that there is no factual basis to support the contention that the amount in controversy exceeds the $5 million threshold required by CAFA. On July 11, 2022, Judge Parker issued the R & R. It recommended that TransPerfect's motion to dismiss be denied, and that the Plaintiffs' NYLL Section 195(3) wage statement claims be dismissed without prejudice due to the Plaintiffs' failure to adequately plead standing to bring those claims. Thereafter on July 25, 2022, TransPerfect filed its objection to the Report and Recommendation ("R & R") dated July 11, 2022, of Magistrate Judge Katharine H. Parker, recommending that its motion to dismiss be denied. It did not object to the recommendation regarding the Plaintiffs' NYLL Section 195(3) wage statement claims. The Plaintiffs responded on Aug. 8, 2022. They did not object to either recommendation. In its objections to the R & R, TransPerfect raised three reasons why the Plaintiffs allegedly fail to meet the $5 million threshold to a legal certainty. First, it claims that Judge Parker erroneously failed to extrapolate the Plaintiffs' damages across the class to determine the amount in controversy. Second, it alleges that Judge Parker applied a higher number of overtime hours than was supported by the evidence while simultaneously incorporating "an unsupported assertion" that Plaintiffs' attorney's fees could amount to or exceed $2 million. Finally, it asserts that Judge Parker applied the incorrect rate of compensation for determining CAFA jurisdiction -- erroneously using the employees' regular rate rather than the minimum wage. Judge Ramos has reviewed Judge Parker's thorough R & R and finds no error, clear or otherwise. He opines that Judge Parker reached her determinations after a careful review of the parties' submissions and arguments, and appropriately relied on pertinent assumptions to determine that the CAFA threshold was met. First, contrary to TransPerfect's objection, Judge Parker's calculation was not "inconsistent with applicable law." That the R & R later mentioned various methods that the Court may subsequently use to calculate attorneys' fees does not call into question its application of the broadly accepted "one-third" method to estimate attorneys' fees for the purpose of the amount in controversy determination at this stage. Second, the Plaintiffs revised their calculations after receiving employer records from TransPerfect that provided a more complete picture of their actual payment history -- not merely after realizing that they simply forgot to add overtime hours to their initial calculations. Judge Ramos sees no reason why it should not consider the revised damages calculations. This renders TransPerfect's extrapolation argument futile. As Judge Parker noted in her R & R, TransPerfect acknowledges that there are at least 235 class members. Applying TransPerfect's logic, if the putative class members all have damages comparable to Metcalf's, the total damages in controversy would be more than $4 million, exclusive of attorneys' fees. The Plaintiffs thus easily clear the $5 million threshold even under TransPerfect's extrapolation theory. At minimum, this theory fails to demonstrate "to a legal certainty" that the Plaintiffs' claims do not meet the $5 million CAFA threshold. Third, in the R & R, Judge Parker concluded that the Plaintiffs failed to sufficiently plead standing to bring claims pursuant to NYLL Section 195(3) for TransPerfect's alleged failure to furnish its employees with accurate wage statements. Neither party challenged this portion of the R & R. Having reviewed the NYLL Section 195(3) standing analysis for clear error, Judge Ramos adopts Judge Parker's recommendation that such claims be dismissed without prejudice. For these reasons, Judge Ramos adopts Judge Parker's recommendations and (1) denies the Defendant's motion to dismiss under CAFA and (2) dismisses the Plaintiffs' NYLL Section 195(3) claims for failure to adequately plead standing without prejudice. The Clerk of the Court is respectfully directed to terminate the motion. A full-text copy of the Court's Sept. 30, 2022 Opinion & Order is available at https://tinyurl.com/yn6hcd9n from Leagle.com. TRIBUCHA INC: Burke Sues Over Misleading and False Advertising -------------------------------------------------------------- Sean Burke, Huy Tran, Nadia Ali, and Darryl Maultsby, on behalf of themselves and all others similarly situated v. TRIBUCHA, INC., Case No. 5:22-cv-00406-M-KS (E.D.N.C., Oct. 6, 2022), is brought against the Defendant's misleading and false advertising and labeling with regards to its kombucha beverages (the "Products" or "Tribucha Kombucha"). The Defendant has passed off its Tribucha Kombucha as non-alcoholic, when, in fact, the beverages contain more than twice the alcohol allowed for non-alcoholic beverages. These alcoholic beverages are sold to unsuspecting children, pregnant women, persons suffering with alcohol dependence issues, and a host of other people for whom alcoholic consumption may pose a grave and immediate safety and/or health risk. The Plaintiffs purchased numerous bottles of Tribucha Kombucha based on the Defendant's misleading and false advertising and labeling of its Products. The Plaintiffs seek relief in this action on behalf of themselves and on behalf of purchasers of Tribucha Kombucha beverages, for the Defendant's violations of state consumer fraud acts, breach of implied and express warranties, fraud, and unjust enrichment, says the complaint. The Plaintiffs frequently purchased Tribucha Kombucha beverages. The Defendant manufactures, advertises, sells, distributes, and markets Tribucha Kombucha beverages.[BN] The Plaintiff is represented by: Daniel K. Bryson, Esq. J. Hunter Bryson, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 900 W. Morgan Street Raleigh, NC 27603 Phone: (202) 640-1167 Email: hbryson@milberg.com - and - Yeremey O. Krivoshey, Esq. BURSOR & FISHER, P.A. 1990 North California Boulevard, Suite 940 Walnut Creek, CA 94596 Phone: (925) 300-4455 Facsimile: (925) 407-2700 Email: ykrivoshey@bursor.com - and - Stephen A. Beck, Esq. BURSOR & FISHER, P.A. 701 Brickell Avenue, Suite 1420 Miami, FL 33131 Phone: (305) 330-5512 Facsimile: (305) 679-9006 Email: sbeck@bursor.com TRUMBULL INSURANCE: Seeks to Certify Proposed Certified Questions ----------------------------------------------------------------- In the class action lawsuit captioned as Charles Miller v. Trumbull Insurance Company, Case No. 2:22-cv-01545-JJT (D. Ariz.), the Defendant asks the Court to enter an order granting its motion to certify the Proposed Certified Questions to the Arizona Supreme Court. When Plaintiff Miller purchased his auto insurance policy, he selected a $50,000 limit for uninsured motorist (UM) coverage. This was the maximum limit he could legally select under Arizona's Uninsured and Underinsured Motorist Act (UMA), as it equaled his bodily injury liability limit. His policy stated that this limit would be applied "regardless of the number of vehicles" insured. Nevertheless, the Plaintiff claims that Trumbull is required to pay him quadruple his limit ($200,000) because his policy insured four vehicles. Under Plaintiff's theory, the clear limitation of liability provision in his policy is insufficient. Instead, the Plaintiff contends it would be perfectly permissible for Trumbull to pay only the $50,000 UM coverage limit if Trumbull had sent Plaintiff an after-the-fact letter allowing him to pointlessly select one of the four vehicles (all subject to the same $50,000 per person limit) to cover his accident. The Plaintiff argues that Subsection H of the UMA requires this absurd result. It does not. Because this putative class action raises multiple important questions of law concerning the interpretation and application of the UMA, Trumbull moves this Court, pursuant to A.R.S. section 12-1861 and Ariz. Sup. Ct. Rule 27, to certify the two questions below to the Arizona Supreme Court. While the first question has been addressed in part -- and incorrectly answered -- by the recent federal court decision Heaton v. Metro. Grp. Prop. & Cas. Ins. Co., 2021 WL 6805629 (D. Ariz. Oct. 19, 2021) (unpublished), neither has been definitively answered by the Arizona Supreme Court or the Arizona Court of Appeals. A copy of the Defendant's motion dated Oct. 5, 2022 is available from PacerMonitor.com at https://bit.ly/3el8thz at no extra charge.[CC] The Attorneys for Plaintiff, are: Brett L. Slavicek, Esq. Justin Henry, Esq. THE SLAVICEK LAW FIRM 5500 N. 24th Street Phoenix, AZ 85016 Telephone: (602) 285-4435 Facsimile: (602) 287-9184 E-mail: brett@slaviceklaw.com justin@slaviceklaw.com The Defendant is represented by Josh M. Snell, Esq. Patrick C. Gorman, Esq. JONES, SKELTON & HOCHULI P.L.C. 40 N. Central Avenue, Suite 2700 Phoenix, AZ 85004 Telephone: (602) 263-1790 Facsimile: (602) 200-7815 E-mail: jsnell@jshfirm.com pgorman@jshfirm.com VANDA PHARMACEUTICALS: $11.5MM Settlement to be Heard on Jan. 5 --------------------------------------------------------------- UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK KENNETH GORDON, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. VANDA PHARMACEUTICALS, INC., and MIHAEL H. POLYMEROPOULOS, Defendants. Civil Action No. 1:19-cv-01108-FB-LB CLASS ACTION SUMMARY NOTICE TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR ACQUIRED THE COMMON STOCK OF VANDA PHARMACEUTICALS, INC. ("VANDA") DURING THE PERIOD FROM NOVEMBER 4, 2015 TO FEBRUARY 11, 2019, INCLUSIVE THIS NOTICE WAS AUTHORIZED BY THE COURT. IT IS NOT A LAWYER SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Eastern District of New York, that a hearing will be held on January 5, 2023 at 10:00 a.m., before the Honorable Lois Bloom, United States Magistrate Judge, at the United States District Court for the Eastern District of New York, United States Courthouse, 225 Cadman Plaza East, Brooklyn, NY 11201, for the purpose of determining: (1) whether the proposed Settlement of the above-captioned Action, as set forth in the settlement agreement reached between the parties, consisting of Eleven Million Five Hundred Thousand Dollars ($11,500,000.00) in cash, should be approved as fair, reasonable, and adequate to the Members of the Class; (2) whether the release by Class Members of claims as set forth in the settlement agreement should be authorized; (3) whether the proposed plan to distribute the settlement proceeds (the "Plan of Allocation") is fair, reasonable, and adequate; (4) whether the application by Lead Plaintiff's counsel for an award of attorneys' fees and expenses and award to Lead Plaintiff should be approved; and (5) whether the Judgment, in the form attached to the settlement agreement, should be entered. Remote access to the final settlement approval hearing shall be afforded to the public by telephone: (888) 363-4734, access code 4444221. This telephone number is afforded for people to listen but not to speak. Please note that the date, time and location of the settlement hearing are subject to change without further notice. If you plan to attend the hearing, you should check the docket or contact Lead Counsel (identified below) to be sure that no change to the date, time or location of the hearing has been made. IF YOU PURCHASED OR ACQUIRED ANY OF THE COMMON STOCK OF VANDA DURING THE PERIOD FROM NOVEMBER 4, 2015 THROUGH FEBRUARY 11, 2019, INCLUSIVE, YOUR RIGHTS WILL BE AFFECTED BY THE SETTLEMENT OF THIS LITIGATION. If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action ("Notice") and a copy of the Proof of Claim and Release form ("Proof of Claim"), you may obtain copies by writing to Vanda Securities Litigation, Claims Administrator, P.O. Box 4419, Portland, OR 97208-4419, or on the internet at www.VandaSecuritiesLitigation.com. If you are a Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim by mail (postmarked no later than December 28, 2022) or submitted electronically (received no later than December 28, 2022), establishing that you are entitled to recovery. Unless the deadline is extended, your failure to submit your Proof of Claim by the above deadline will preclude you from receiving any payment from the Settlement. If you are a Class Member and you desire to be excluded from the Class, you must submit a request for exclusion such that it is received no later than December 15, 2022, in the manner and form explained in the detailed Notice, referred to above. All Members of the Class who do not timely and validly request exclusion from the Class will be bound by the Settlement and any judgment and release entered in the Action pursuant to the Stipulation and Agreement of Settlement, whether or not you submit a Proof of Claim. If you are a Class Member, you have the right to object to the Settlement, the Plan of Allocation, and/or the request by Lead Counsel for an award of attorneys' fees and expenses. Any objection to the Settlement, the Plan of Allocation, or the fee and expense application must be made in the manner and form explained in the Notice and must be mailed to each of the following recipients, so that it is received no later than December 15, 2022: CLERK OF THE COURT UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK UNITED STATES COURTHOUSE 225 Cadman Plaza East Brooklyn, NY 11201 Lead Counsel: ROBBINS GELLER RUDMAN & DOWD LLP MICHAEL G. CAPECI 58 South Service Road, Suite 200 Melville, NY 11747 Counsel for Defendants: PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP AUDRA J. SOLOWAY 1285 Avenue of the Americas New York, NY 10019 PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE OR DEFENDANTS REGARDING THIS NOTICE. If you have any questions about the Settlement, you may contact Lead Counsel at the address listed above or by an email to Lead Counsel at settlementinfo@rgrdlaw.com. DATED: September 15, 2022 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK VEECO INSTRUMENTS: Court Sets Nov. 17 Settlement Approval Hearing ----------------------------------------------------------------- VLADIMIR GUSINSKY REVOCABLE TRUST, Derivatively on Behalf of VEECO INSTRUMENTS INC., Plaintiff, v. JOHN R. PEELER, JOHN P. KIERNAN, SHUBHAM MAHESHWARI, RICHARD A. D'AMORE, PETER J. SIMONE, GORDON HUNTER, KEITH D. JACKSON, THOMAS ST. DENNIS, KATHLEEN A. BAYLESS, and DOES 1- 25, Inclusive, Defendants. -andVEECO INSTRUMENTS INC., a Delaware corporation, Nominal Defendant. AMENDED NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF SHAREHOLDER DERIVATIVE ACTION TO: ALL OWNERS OF THE COMMON STOCK OF VEECO INSTRUMENTS, INC. ("VEECO" OR THE "COMPANY") CURRENTLY AND AS OF AUGUST 16, 2022 ("CURRENT SHAREHOLDERS"): THIS NOTICE RELATES TO THE PENDENCY AND PROPOSED SETTLEMENT OF SHAREHOLDER DERIVATIVE LITIGATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. IF YOU ARE A VEECO SHAREHOLDER, THIS NOTICE CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS. THIS ACTION IS NOT A "CLASS ACTION." THUS, THERE IS NO COMMON FUND UPON WHICH YOU CAN MAKE A CLAIM FOR MONETARY PAYMENT. IF YOU DO NOT OBJECT TO THE TERMS OF THE PROPOSED SETTLEMENT OR THE AMOUNT OF ATTORNEYS' FEES AND EXPENSES DESCRIBED IN THIS NOTICE, YOU ARE NOT OBLIGATED TO TAKE ANY ACTION. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the Superior Court of the State of California, County of Santa Clara (the "Court"), that a proposed settlement (the "Settlement")1 has been reached by the parties to the above-captioned shareholder derivative action (the "Action"). As explained below, a hearing will be held on November 17, 2022 at 1:30 p.m. before the Honorable Sunil R. Kulkarni, at the Superior Court of the State of California, County of Santa Clara, Downtown Superior Court, 191 North First Street, San Jose, California 95113 (the "Settlement Hearing"), at which the Court will determine whether to approve the Settlement. You have an opportunity to be heard at this hearing. The terms of the Settlement are set forth in the Stipulation and summarized in this Notice. If approved by the Court, the Settlement will fully resolve the Action, including the dismissal of the Action with prejudice. For a more detailed statement of the matters involved in the Action, the Settlement, and the terms discussed in this Notice, the Stipulation may be inspected (a) online on the Superior Court of California, County of Santa Clara's Electronic Filing and Service Website at www.scefiling.org, or (b) in person at Records, Superior Court of California, County of Santa Clara, 191 N. First Street, San Jose, California 95113, between the hours of 8:30 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays and closures. The Stipulation is also available for viewing on the website of Plaintiff's Counsel, Robbins LLP (https://robbinsllp.com/veeco-instruments-incsettlement/). This Notice is NOT an expression of any opinion by the Court with respect to the merits of the claims or defenses asserted in the Action or whether Defendants engaged in any wrongdoing. The Notice is merely intended to advise you of the pendency and settlement of the Action. THERE IS NO CLAIMS PROCEDURE. The Settlement will result in certain changes to the Company's corporate governance reforms, not in payment to individuals, and accordingly, there will be no claims procedure. THE ACTION Brief Factual and Procedural Summary Plaintiff alleges that it brought this Action on behalf of and for the benefit of Veeco and against the Individual Defendants. On December 21, 2018, Plaintiff filed a derivative complaint on behalf of Veeco, pleading claims against the Individual Defendants for breach of fiduciary duty, unjust enrichment, and waste of corporate assets (the "Complaint"). Specifically, Plaintiff alleges that the Individual Defendants made false and misleading statements in connection with the Company's acquisition of Ultratech, Inc. in 2017. The Individual Defendants have denied, and continue to deny, all of Plaintiff's allegations and that there was any violation of law. Defendants filed a demurrer to the Complaint on September 20, 2019, arguing that Plaintiff had failed to adequately plead demand futility and had failed to adequately plead any of its underlying derivative claims. Plaintiff filed an opposition to the demurrer on November 13, 2019, and Defendants filed a reply brief in support of their demurrer on December 16, 2019. The Court heard argument from the parties on June 5, 2020, and, following the hearing, issued an order sustaining the demurrer for failure to adequately plead demand futility, holding that the Offering Documents "did disclose 'continu[ing]' risks in the Asia-Pacific region bearing on increased competition" and that Plaintiff's allegations failed to establish demand futility because the "allegations regarding the defendants' knowledge are conclusory and are not specific to each director." Order Sustaining Demurrer at 5. The Court gave Plaintiff sixty (60) days to amend. On June 12, 2020, Plaintiff served on the Company a request for the production of certain documents relevant to demand futility, as well as a demand to inspect the documents pursuant to the applicable inspection demand statutes under Delaware and California law. The Company served its responses and objections to Plaintiff's request for production of documents on July 14, 2020. The parties thereafter met and conferred and, notwithstanding their dispute concerning Plaintiff's entitlement to discovery at the pleading stage reached an agreement pursuant to which the Company would produce certain documents responsive to Plaintiff's requests and extend Plaintiff's time to file an amended complaint pending the production and review of those documents. On July 28, 2020, subject to the Stipulation and Protective Order Regarding Confidential Information that was entered by the Court on July 24, 2020 and Veeco's reservation of rights regarding Plaintiff's entitlement to discovery, Defendants produced the documents -- which included all board books and records from board meetings (including minutes, resolutions, reports, presentations, or memoranda made, reviewed by, or provided to the Board) between July 1, 2016, and December 31, 2017 -- to Plaintiff. Following a review of those documents, on August 24, 2020, Plaintiff filed its amended complaint (the "Amended Complaint"). The Amended Complaint contained additional allegations from the document production that Plaintiff believes were sufficient to support a finding that a majority of the members of Veeco's Board faced a substantial likelihood of liability and, therefore, that demand was futile. Defendants filed a demurrer directed at the Amended Complaint on September 23, 2020, again arguing that Plaintiff had failed to adequately plead demand futility and had failed to adequately plead any of its underlying derivative claims. Plaintiff filed an opposition to the demurrer to the Amended Complaint on November 19, 2020, and defendants filed a reply brief in support of their demurrer to the Amended Complaint on December 23, 2020. The Court heard argument from the parties on the demurrer to the Amended Complaint on January 13, 2021. On January 25, 2021, the Court issued an order sustaining Defendants' demurrer with prejudice for failure to adequately plead demand futility (the "Dismissal Order"). The Court held that Plaintiff's "allegations fall short of establishing an inference of scienter [and] Plaintiff fails to explain specifically how Veeco's financial projections were misleading in light of the information known to the board . . ." Dismissal Order at 11. The Court further held that Plaintiff "does not adequately plead facts supporting an inference that directors knew positive statements" were "false or misleading," or "explain exactly how these statements are false or misleading." Id. at 12. The Court denied Plaintiff's request for leave to amend. On March 26, 2021, Plaintiff filed a notice of appeal of the Dismissal Order. After the parties agreed to settle the Action, on June 3, 2022, Plaintiff requested dismissal of its appeal in the Sixth Appellate District of the California Court of Appeal (the "Court of Appeal") and immediate issuance of remittitur of record so that jurisdiction would be reinstated in the Court and the parties could seek settlement approval pursuant to California Rules of Court 8.272(c) and 8.244(c)(2). The Court of Appeal, thus, dismissed Plaintiff's appeal on June 7, 2022. On June 9, 2022, the Court of Appeal issued a remittitur reinstating jurisdiction in the Court, and the remittitur was filed in the Court on June 10, 2022. On July 7, 2022, the parties filed a stipulation requesting that the Court vacate the Dismissal Order for the limited purpose of permitting the Court to consider and approve the agreed-to settlement. The Court signed an order vacating the Dismissal Order for that limited purpose the same day. The Parties' Settlement Negotiations Following the Dismissal Order and the filing of Plaintiff's notice of appeal, Plaintiff and Defendants actively engaged in discussions aimed at a possible resolution of the Action. In the fall of 2021, Plaintiff served the Company with a letter setting forth a detailed framework for a potential settlement of the Derivative Action ("Settlement Demand"), which included a slate of proposed corporate reforms. Over the next several months, counsel for the Settling Parties engaged in goodfaith negotiations regarding a potential resolution of the Action, which included participating in a number of telephonic conferences and exchanging multiple drafts of corporate governance reforms that the Settling Parties believed could possibly form the basis for a settlement. The Settling Parties' extensive negotiations culminated in the settlement agreement set forth in the Stipulation. Subject to approval of the Court, the Settling Parties agree that Plaintiff's Action and the Released Claims shall be resolved as set forth in the Stipulation. PLAINTIFFS' ATTORNEYS' FEES AND EXPENSES After negotiating the substantive terms of the settlement, the Settling Parties separately negotiated the attorneys' fees and expenses the Defendants would pay or cause to be paid to Plaintiff's Counsel. As a result of those negotiations, Defendants have agreed, subject to Court approval, to pay or cause to be paid to Plaintiff's counsel $300,000 in attorneys' fees and expenses, in recognition of the substantial benefits conferred upon Veeco as a result of the Action and the Settlement (the "Fee and Expense Amount"). The independent non-defendant directors of the Company's Board, in the good faith exercise of their business judgment, have approved the agreed-to Fee and Expense Amount. To date, Plaintiff's Counsel have neither received any payment for their services in conducting the Action, nor have counsel been reimbursed for their out-of-pocket expenses incurred. Except as otherwise provided herein, each of the Settling Parties shall bear his, her, or its own fees and costs, and neither the Company nor any other Released Person shall have any obligations with respect to Plaintiff's Counsel's fees and/or expenses beyond the Fee and Expense Amount. Veeco shareholders are not personally liable for the payment of any award of attorneys' fees and expenses. The Settlement is not contingent on the allowance or disallowance by the Court of the Fee and Expense Amount or any minimum or specific amount of attorneys' fees or litigation expenses. Notwithstanding any other terms of the Settlement, the Fee and Expense Amount shall be considered by the Court separate and apart from its consideration of the fairness, reasonableness, and adequacy of the Settlement, and any order or proceeding pertaining solely to the Fee and Expense Amount, or any appeal of any order pertaining solely thereto or reversal or modification thereof, shall not operate to, or be grounds to, terminate or cancel the Settlement of this Action, or affect or delay the finality of the Judgment approving this Settlement. THE SETTLEMENT HEARING The Settlement Hearing will be held on November 17, 2022, at 1:30 p.m., before the Honorable Sunil R. Kulkarni, at the Superior Court of the State of California, County of Santa Clara, Downtown Superior Court, 191 North First Street, San Jose, California 95113, at which the Court will determine: (i) whether the terms of the Stipulation should be approved as fair, reasonable, and adequate; (ii) whether the Judgment finally approving the Settlement, substantially in the form of Exhibit E attached to the Stipulation, should be entered, dismissing the Action with prejudice and releasing and enjoining the prosecution of any and all Released Claims against the Released Persons; (iii) whether the agreed-to Fee and Expense Amount should be approved; and (iv) such other matters as the Court may deem appropriate. The Settlement Hearing may be continued by the Court at the Settlement Hearing, or at any adjourned session thereof without further written notice to Current Shareholders. THE RIGHT TO OBJECT AND/OR BE HEARD AT THE HEARING Any Current Shareholder may object and/or appear and show cause, if he, she, or it has any concern, why the Settlement should not be approved as fair, reasonable, and adequate, or why the Judgment should not be entered thereon, or why the amount of attorneys' fees and reimbursement of expenses should not be approved. Hearings before the judge overseeing this case will be conducted remotely. (As of August 15, 2022, the Court's remote platform is Microsoft Teams.) Shareholders who wish to appear should contact Plaintiff's counsel at least three days before the hearing if possible. Instructions for appearing remotely are provided at https://www.scscourt.org/general_ info/ra_teams/video_hearings_teams.shtml and should be reviewed in advance. Shareholders may appear remotely using the Microsoft Teams link for Department 1 (Afternoon Session) or by calling the toll free conference call number for Department 1, which is 669-245-6247 (access code 399 396 192#). In addition, any Current Shareholder may file with the Court, at least fourteen (14) calendar days prior to the Settlement Hearing, a written notice of objection containing the following information: 1. Your name, legal address, and telephone number; 2. The case name and number (Vladimir Gusinsky Revocable Trust v. Peeler, et al., No. 18CV339925); 3. Proof of being a Veeco shareholder currently and as of August 16, 2022; 4. The date(s) you acquired your Veeco shares; 5. A statement of each of each objection being made; 6. Notice of whether you intend to appear at the Settlement Hearing (you are not required to appear); and 7. Copies of any papers you intend to submit to the Court, along with the names of any witness(es) you intend to call to testify at the Settlement Hearing and the subject(s) of their testimony. All written objections and supporting papers must be filed on or before November 3, 2022, with the Clerk of the Court, Superior Court of the State of California, County of Santa Clara, Downtown Superior Court, 191 North First Street, San Jose, California 95113 and serve such materials by that date, to each of the following Settling Parties' counsel: Counsel for Plaintiff: Shane P. Sanders ROBBINS LLP 5040 Shoreham Place San Diego, CA 92122 Telephone: (619) 525-3990 Facsimile: (619) 525-3991 ssanders@robbinsllp.com Counsel for Defendants: Matthew W. Close Jonathan B. Waxman O'MELVENY & MYERS LLP 400 South Hope Street, 18th Floor Los Angeles, CA 90071 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 mclose@omm.com jwaxman@omm.com Any Current Shareholder may appear and object at the Settlement Hearing without submitting a written objection. Unless otherwise ordered by the Court, any Current Shareholder who does not make his, her, or its objection in the manner provided herein, whether by filing a written objection and/or appearing at the Settlement Hearing, shall be deemed to have waived such objection (including the right to appeal) and shall forever be barred and foreclosed, in this proceeding or in any other proceeding, from making any objection to the fairness, reasonableness, or adequacy of the Settlement, or to otherwise be heard, and shall otherwise be bound by the Judgment to be entered and the releases to be given. EXAMINATION OF PAPERS AND INQUIRIES There is additional information concerning the Settlement available in the Stipulation, which is available for viewing on the website of Plaintiff's Counsel, Robbins LLP (https://robbinsllp.com/veeco-instruments-inc-settlement/). You may also inspect the Stipulation during business hours at the office of the Clerk of the Court, Superior Court of the State of California, County of Santa Clara, Downtown Superior Court, 191 North First Street, San Jose, California 95113. Or you can call Robbins LLP, 5040 Shoreham Place, San Diego, California 92122, telephone: (619) 525-3990, for additional information concerning the Settlement. PLEASE DO NOT CONTACT THE COURT, VEECO, OR VEECO'S COUNSEL REGARDING THIS NOTICE OR THE SETTLEMENT. DATED: HONORABLE SUNIL R. KULKARNI SUPERIOR COURT JUDGE VERIZON COMMUNICATIONS: Bid for Arbitration in Fritzco Suit Okayed ------------------------------------------------------------------ In the case, FRITZCO LLC, et al., Plaintiffs v. VERIZON COMMUNICATIONS INC., et al., Defendants, Case No. 21-CV-10432 (JPO) (S.D.N.Y.), Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York grants Verizon's motion to compel FritzCo and the Law Office of Samuel M. Smith to pursue their claims in arbitration and stays the litigation pending the outcome of the arbitration process. Plaintiffs FritzCo, Los Gatos-Saratoga Community Education and Recreation, and the Smith firm bring suit against Verizon and Cellco Partnership (doing business as Verizon Wireless) (jointly, "Verizon") alleging negligence, negligence per se, breach of implied contract, and unjust enrichment stemming from a 2020 data breach affecting Verizon Wireless business accounts. The Plaintiffs seek to certify a nationwide class on their common law tort claims and to certify subclasses based on claims deriving from data protection statutes in California, Indiana, and Texas. During the events in question, the Plaintiffs each had a business account with Verizon for the provision of cell phone service and devices. Before activating their Verizon services, FritzCo and the Smith firm signed a Verizon Wireless Retail Major Account Agreement, which governed the terms of the business relationship between the parties. Each Agreement contained a Dispute Resolution provision stating that the parties would "both agree to arbitrate any dispute that arises under or relates to this Agreement." As part of each Agreement, the Plaintiffs designated a person or persons within their organization to serve as a Point of Contact for Verizon, providing their email address and phone number. On Dec. 1, 2020, FritzCo experienced an "email bomb" attack: An unknown party began sending tens of thousands of emails per hour to the company's primary business account. The apparent purpose of the attack was to hide legitimate emails in a deluge of spam. As a result, FritzCo was late to discover a receipt from Verizon reflecting the fraudulent purchase of an Apple iPhone 12 using its account. It later discovered more fraudulent purchases and determined that the unknown third parties had not been thwarted by Verizon's security features, including multi-factor authentication. In late 2020, the Smith firm experienced an identical email bomb attack, which also led to unauthorized purchases on its account. It alleges similar data security lapses by Verizon. Los Gatos experienced a similar chain of events, beginning in November 2020. While it contracted with Verizon for business services, the parties are unable to locate an executed version of the Major Account Agreement between it and Verizon. The Plaintiffs allege that the email bombings and subsequent fraud were the direct result of a breach of Verizon's business server and Verizon's failure to guard their confidential information, including email addresses. They further allege that thousands of other businesses have been similarly injured by Verizon and that similar data breaches "may be ongoing." Verizon moves to compel FritzCo and the Smith firm to pursue their claims in arbitration and to stay litigation pending the outcome of the arbitration process. The threshold issue -- whether FritzCo and the Smith firm agreed with Verizon to arbitrate -- is a question of state contract law. To be valid under New York law, a contract must contain manifestations of mutual assent. In the case, there is no dispute that the parties mutually agreed to arbitrate at least some types of claims. Under paragraph 25 ("Dispute Resolution") of the Major Account Agreement, the parties stated -- subject to certain exceptions -- that "we both agree to arbitrate any dispute that arises under or relates to this Agreement." That language, according to Judge Oetken, "clearly manifests an intention by the parties to submit certain disputes to a specified third party for binding resolution." Having concluded that the Dispute Resolution provision in the Major Account Agreement is an enforceable arbitration clause, Judge Oetken must next decide whether the Plaintiffs' claims come within its scope. He holds that (i) the Plaintiffs' claims arising from the data breach are not collateral to the Major Account Agreement; (ii) the Plaintiffs cannot rely on theoretical claims of potential class members to sidestep the express terms of the arbitration agreement; (iii) the Plaintiffs' reliance on the express arbitration carve-out is unavailing; (iv) Verizon's decision to avoid arbitration in other factual and legal circumstances has little relevance, and hardly rises to the level of the "forceful evidence" that the Court would need to find to overcome the presumption in favor of arbitration; (v) the Plaintiffs do not raise any federal statutory claims -- their claims all sound in common law tort or certain state consumer protection statutes; and (vi) the remaining claims must be stayed pending arbitration. Judge Oetken concludes that Plaintiffs FritzCo and the Smith firm have not rebutted the presumption of arbitrability flowing from their arbitration agreements with Verizon. They are therefore compelled to arbitrate the relevant claims. The Defendants argue that, under the Major Account Agreement, the arbitration the Plaintiffs must be compelled to arbitrate on an individual, rather than class, basis. Courts must place arbitration agreements on an equal footing with other contracts and enforce them according to their terms. The Major Account Agreement is crystal clear: "No arbitration can be on a class basis or be joined or consolidated with another arbitration." The Plaintiffs do not contest this reading of the text. FritzCo and the Smith firm are required to pursue their arbitration claims individually. For the foregoing reasons, Verizon's motion to compel arbitration as to the claims by FritzCo and the Smith firm and otherwise stay the litigation is granted. The Clerk of Court is directed to close the motion at Docket Number 31. The Clerk is also directed to mark the case as stayed. A full-text copy of the Court's Sept. 30, 2022 Opinion & Order is available at https://tinyurl.com/bdh6k62f from Leagle.com. VI-JON LLC: Court Refuses to Dismiss Loughlin's 2nd Amended Suit ---------------------------------------------------------------- In the case, KRISTINA LOUGHLIN, Plaintiff v. VI-JON, LLC, Defendant, Case No. C.A. No. 20-11555-MLW (D. Mass.), Judge Mark K. Wolf of the U.S. District Court for the District of Massachusetts denies Vi-Jon's Motion to Dismiss the Plaintiff's Second Amended Complaint. In this putative class action, Loughlin alleges that Vi-Jon, which manufactures hand sanitizer products, engaged in unfair and deceptive trade practices in violation of Mass. Gen. Laws ch. 93A, Section 2. Specifically, she alleges that Vi-Jon's products advertising that each product "kills 99.99% of germs" are false and misleading because the products are ineffective against more than 0.01% of germs that can be found on hands. This language, which appears on the front of each bottle of hand sanitizer, is followed by an asterisk directing consumers to smaller text on the back of the bottle explaining that the sanitizer is "effective at eliminating more than 99.99% of many common harmful germs & bacteria in as little as 15 seconds." On Nov. 5, 2020, Loughlin filed the First Amended Complaint ("FAC"), alleging claims for unfair and deceptive trade practices in violation of Mass. Gen. Laws ch. 93A, Section 2 and unjust enrichment. On Jan. 18, 2021,1 Vi-Jon filed a motion to dismiss the FAC. It argued that Loughlin lacked Article III standing because she had not sufficiently alleged an injury in fact. It also argued that the FAC failed to state a claim, that Loughlin's claims were barred by preemption and primary jurisdiction, and that she was not entitled to equitable relief for her unjust enrichment claim because she had an adequate remedy at law. Loughlin filed an opposition, Vi-Jon filed a reply, and both parties filed supplemental authority. The Court held a hearing on the motion to dismiss on Sept. 22, 2021. At the hearing, it denied Vi-Jon's motion to dismiss with respect to Loughlin's claim of unfair and deceptive conduct and allowed the motion with respect to Loughlin's claim for unjust enrichment. The Court also ordered Loughlin to file a Second Amended Complaint ("SAC") that conforms to the reasoning explained at the hearing. Specifically, it ordered Loughlin to narrow the complaint to align with its finding that "a reasonable consumer would read the label in question as addressing germs that might be found on hands and not other germs that are not found on hands." The SAC was filed on Oct. 10, 2021. The SAC includes most of the allegations in the FAC but is different in several material aspects. First, the SAC omits discussion of several diseases discussed in the FAC, including polio and hepatitis A. Second, the SAC is reframed to focus on germs that can be found on hands. In particular, Loughlin added additional language throughout the SAC to clarify that she was referring to germs on hands. Finally, the SAC includes multiple factual allegations concerning the efficacy of hand sanitizers in real world conditions that were not included in the FAC. On Oct. 26, 2021, Vi-Jon filed the Motion, again arguing that Loughlin lacks Article III standing because she has not alleged an injury in fact. In doing so, it again relies on In re Fruit Juice Products Marketing, and argues that this case is "remarkably different from Dumont." It further asserts that Loughlin's claims "are purely hypothetical or conjectural." It argues that Loughlin has not alleged that she used the hand sanitizer(s), that they failed to sanitize her hands, or that she was exposed to germs because of alleged inefficacy. Instead, Vi-Jon argues that Loughlin received the benefit of her bargain, receiving the alcohol-based hand sanitizer that she paid for. Vi-Jon filed a notice of supplemental authority, Moreno v. Vi-Jon, 2021 WL 5771229 (S.D. Cal. Dec. 6, 2021), a decision in the Moreno case previously brought to the court's attention. See Dkt. No. 66. There, the court granted a motion to dismiss the second amended complaint, this time with prejudice, because it again found that the plaintiff lacked standing and had failed to state a claim. See id. Finally, Vi-Jon argues that Loughlin failed to address the court's concerns in amending her complaint and only "broadly" alleges that the products are "ineffective at killing germs on consumers' hands in general." It argues that the SAC is insufficient because it does not allege what germs a reasonable consumer would expect to be on the hands or whether a reasonable consumer would expect hand sanitizer to be effective on dirty or greasy hands. It argues that to comport with the court's findings at the Sept. 22, 2021 hearing, Loughlin was required to "specifically state that the hand sanitizer did not kill 99.9% of the germs on her hands," which she did not do in the SAC. Judge Wolf holds that his analysis does not change the Court's view that the type of economic injury alleged by Loughlin is sufficient in the First Circuit. He also finds that Loughlin sufficiently amended her complaint to conform to the court's analysis at the Sept. 22, 2021 hearing. The SAC narrows the case to germs found on hands by including qualifying language and providing additional information about the transmission of diseases by hand or touch. It also alleges that hand sanitizers have lower efficacy rates based on the conditions of the hands they are applied to and the manner in which they are applied. These changes to the SAC sufficiently address the concerns raised at the Sept. 22, 2021 hearing. In drawing inferences in favor of Loughlin, Judge Wolf infers that Loughlin has plausibly alleged that she bought the hand sanitizer with the expectation that it would kill 99.99% of germs on her hands. While the Court expected Vi-Jon would answer the SAC, the Defendant filed a motion to dismiss that is, in essence, a motion to reconsider the Court's earlier ruling. The implicit request to reconsider is not meritorious. In largely repeating previously rejected arguments, Judge Wolf says the Defendant has not identified any intervening change in the applicable law or persuaded the Court that it made a manifest error of law. Therefore, except as amplified in his Memorandum, Judge Wolf is not altering the Court's analysis or order at the Sept. 22, 2021 hearing. In view of the foregoing, Judge Wolf denies the Defendant's Motion to Dismiss. Vi-Jon will, by Nov. 1, 2022, file an answer to the SAC. The case is referred to the Magistrate Judge for pretrial purposes. A full-text copy of the Court's Sept. 30, 2022 Memorandum & Order is available at https://tinyurl.com/mu2z6sbe from Leagle.com. WALMART INC: Equate Product Won't Treat Cuts, Abrasions, Suit Says ------------------------------------------------------------------ APRIL WRIGHT, individually and on behalf of all others similarly situated v. WALMART INC. Case 3:22-cv-02311 (S.D. Ill., Oct. 6, 2022) alleges that the representation of Equate Hydrogen Peroxide Product for treatment of minor cuts and abrasions is false and misleading. According to the complaint, the Defendant makes other representations and omissions with respect to the Product which are false and misleading. The Defendant sold more of the Product and at higher prices than it would have in the absence of this misconduct, resulting in additional profits at the expense of consumers. The Plaintiff paid more for the Product than she would have had she known the representations with respect to "treatment of minor cuts and abrasions" were false and misleading, and she would not have bought it or would have paid less. As a result of the false and misleading representations, the Product is sold at a premium price, no less than $1.00 for 32 fl oz, excluding tax and sales, higher than similar products represented in a non-misleading way, and higher than it would be sold for absent the misleading representations and omissions, says the suit. Walmart is an American multinational retail corporation that operates a chain of over 5,000 supercenters throughout the nation, selling everything from furniture to groceries.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAB & ASSOCIATES P.C. 60 Cuttermill Rd Ste 412 Great Neck NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com WALMART INC: Seeks Dismissal of Marijuana Screening Class Action ---------------------------------------------------------------- Daniel Wiessner, writing for Reuters, reports that Walmart Inc has asked a federal judge in New Jersey to rule that the state's law barring employers from refusing to hire job applicants because of their off-duty marijuana use can only be enforced by the state, and not individual workers. Walmart on Oct. 7 asked the judge to toss a proposed class action filed in June, arguing that a New Jersey law legalizing recreational marijuana use gives a state commission exclusive enforcement powers and does not authorize private lawsuits. The lawsuit accuses Walmart and subsidiary Sam's Club of violating the law, which took effect in April, by using positive marijuana tests to screen job applicants. Walmart's motion comes as an increasing number of states legalize recreational marijuana use and employers grapple with balancing new legal protections for workers with concerns about workplace safety. President Joe Biden pardoned thousands of people convicted of marijuana possession under federal law and launched a review of how the drug is classified. A lawyer for lead plaintiff Erick Zanetich did not immediately respond to a request for comment on Oct. 10. Zanetich claims he was offered a security job by Walmart earlier this year, but the offer was pulled after he tested positive for marijuana during a mandatory screening. Voters in New Jersey approved a ballot initiative to legalize recreational marijuana in 2020, and a state law authorizing marijuana sales took effect in April. A provision of the law prohibits employers from firing workers or refusing to hire job applicants because they use marijuana on their own time. The law does allow for workers to be fired if they are impaired on the job. Walmart in the Oct. 7 motion said the state Cannabis Regulatory Commission, which was created by the state law, was given exclusive powers to enforce it. Since the law does not also explicitly allow for private lawsuits, Walmart said, individual workers do not have the ability to sue for violations. State and federal judges in Pennsylvania, Connecticut, Delaware, Arizona and other states have said that medical marijuana laws allow workers to sue for discrimination, even when they do not explicitly authorize it. The case is Zanetich v. Wal-mart Stores East Inc, U.S. District Court for the District of New Jersey, No. 1:22-cv-05387. For Zanetich: Justin Swidler of Swartz Swidler For Walmart: Tracey Diamond of Troutman Pepper [GN] XAVIER BECERRA: Johnson Files Suit in D. Columbia ------------------------------------------------- A class action lawsuit has been filed against Xavier Becerra. The case is styled as Catherine Johnson, Katherine Vaczi, Cara Bunnell, on behalf of themselves and all others similarly situated, and National Multiple Sclerosis Society, Team Gleason v. Xavier Becerra, in his official capacity as Secretary of Health and Human Services, Case No. 1:22-cv-03024-TNM (D.D.C., Oct. 6, 2022). The nature of suit is stated as Social Security: HIA. Xavier Becerra -- https://www.hhs.gov/about/leadership/xavier-becerra.html -- is an American lawyer and politician serving as the 25th United States secretary of health and human services since March 2021.[BN] The Plaintiffs are represented by: Alice Bers, Esq. CENTER OF MEDICARE ADVOCACY PO Box 350 Willimantic, CT 06226 Phone: (860) 456-7790 Fax: (860) 456-2614 Email: abers@medicareadvocacy.org [*] Marijuana Financial Restatements May Prompt Class Actions ------------------------------------------------------------- Kate Robertston, writing for MJBizDaily, reports that the marijuana industry has an accounting problem, with a number of companies correcting errors in financial statements in recent years through restatements. Restating financial results is a rare occurrence for most public companies: 2020 had the lowest number of financial restatements by public companies in the past 20 years with only 364, according to a report by Massachusetts-based Audit Analytics. But a disproportionate number of them have come from the cannabis industry over the past few years, making it harder for investors to gauge the financial health of a company. Restatements also can lead to potentially costly class action lawsuits. In the case of the marijuana industry, the restatements have included high-profile companies: - Florida-based multistate operator Jushi Holdings in September said it filed restated financial results for this year's first quarter. - Chicago-headquartered MSO Verano Holdings announced in July it would restate five quarters of financial results. - KushCo Holdings, a California-based packaging company now known as Greenlane Holdings, announced in 2019 it was restating results from fiscal 2018 and 2017 to reflect accounting errors stemming from previous acquisitions. - Canadian cultivator and processor Cronos Group, headquartered in Toronto, said in November 2021 it would restate financials for the three- and six-month periods ending June 30 of that year. Matt Karnes, founder of New York-based cannabis financial consultancy GreenWave Advisors, attributes the problem largely to the U.S. government's marijuana prohibition. That has prevented major accounting firms such as the Big Four -- Deloitte, EY (formerly Ernst & Young), KPMG and PricewaterhouseCoopers -- from servicing the marijuana industry. He also chalks it up to inexperienced and/or understaffed in-house accounting departments at public cannabis companies. "Financial reporting is definitely an area that many people overlook," he said. Accounting for errors Jushi announced on Sept. 9 it filed restated first-quarter 2022 results. The company identified two errors: Right-of-use assets associated with finance leases, accrued expenses and other liabilities. Operating, investing and financing activity cash flow. "These errors did not impact the cash balance as of March 31, 2022, and there was no net change in cash flows during the three months then ended," according to a Jushi news release. Verano said in July that it would be restating five quarterly financial statements dating to March 31, 2021, and that all of its disclosures and investor presentations since then "should therefore no longer be relied upon." Stock-based compensation had been understated, according to a news release, affecting the stated tax expenses. "In this particular case, it seems like it was an error that was overlooked," Karnes said, "and it seems like a very simple matter that should have been identified. "And so it really brings home the point that I've been expressing for a long time now, that many cannabis companies lack the in-house accounting expertise that other industries have." Common pitfalls John Pelliterri, a partner at New York-headquartered Grassi Advisors and Accountants, said the issues Verano and Jushi have grappled with are common in the marijuana industry, where accounting for the cash-based sector is particularly challenging and equity-based compensation is common. In addition, he said common pitfalls include: Inventory, which moves quickly in cannabis. State taxes combined with issues related to Section 280E of the federal tax code, which prohibits marijuana businesses from taking traditional business deductions. Convoluted ownership structures. Some management teams might choose to invest more in the company's brand rather than key areas such as accounting. But, Pelliterri said, with time and, perhaps, by learning the hard way, restatements will become less common. "We're getting there," he said. "Once you get in a year, two years, you start to understand the nuances and then you get a handle on a lot of the issues. "But there's not that many people that have been doing it that long." Legal risks Toronto-based Cronos Group announced in November 2021 it would restate financials for the three and six months ending June 30, 2021, after failing to report more than $220 million in impairment charges. "As we move forward, we are committed to improving our internal controls and financial reporting practices, maintaining the highest standards of transparency and accountability, and enhancing our capabilities and resources across functions to support our strategy," President and CEO Kurt Schmidt said in a statement this past February. In the meantime, a number of law firms launched investigations to determine whether there were grounds for -- and shareholder interest in -- filing a class action lawsuit. "Cronos stock was down more than 15% during intraday trading on Nov. 9, 2021, thereby injuring investors," according to a November 2021 news release, issued by Philadelphia-based Kehoe Law, soliciting investors who lost more than $25,000 to contact the firm. "The restating of a public company's financial statements is like ringing the alarm bell for class action lawyers," Robert Cohen, a litigation partner at the Cassels law firm in Toronto, told MJBizDaily via email. "It doesn't necessarily mean that a class action will ensue or be successful, but it typically means that there is smoke to be investigated, and often when there is smoke, there is fire." In another instance, Cronos Group restated its first-, second- and third-quarter financial statements in 2019 after reviewing sales of bulk resin and wholesale products. That spurred one shareholder to attempt to file a class action lawsuit on behalf of other individuals, arguing that the company had "orchestrated a scheme to inflate its reported revenue figures" and that the errors had ultimately negatively affected the share price. According to the Ontario Court Appeal's Sept. 26 decision to allow the class action regarding the 2019 restatements to move ahead, the defendants dispute that the share price drop is attributed to the restatements but, rather, to the COVID-19 pandemic and delayed distribution of a new product in the United States. Cronos Group did not respond to a request for comment from MJBizDaily. The Court of Appeal's decision shows that class actions are the most common way to take action against public companies for alleged misrepresentations that come to light from the restatement of financial statements, Cohen said. "Starting a class action, obtaining leave of the court to proceed and getting it across the finish lines of both a trial and an appeal is rare in Canada, as many class actions settle along the way," Cohen said. "Having said that, just the commencement of a class action which has various badges of merit can prove to be very damaging to a public company, including to its ability to raise funds at critical times." Considering the risks and costs associated with restatements of financial statements, both Karnes and Pelliterri advise marijuana companies to invest in accounting and make an effort to stay on top of the latest developments. The industry is still new. "A lot of the rules are still being written," Pelliterri said. "As more people get into the industry and it becomes more mainstream, a larger group will gravitate (toward cannabis) from a financial perspective." [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. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***