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

              Thursday, October 20, 2022, Vol. 24, No. 204

                            Headlines

918 JAMES: Appeal From Class Certification in Farruggio Suit Tossed
ACCENTURE PLC: Appeals Class Cert. Ruling in Data Breach Suit
ALLIANCE COAL: Court Grants in Part Bids to Compel in Brewer Suit
ATLAS CAPITAL: Faces Class Action Suit for Defrauding Tenants
BED BATH: Says Si Securities Class Suit Without Merit

BIMBO BAKERIES: Illinois Court Dismisses Bartosiake Consumer Suit
BLACKBERRY LTD: Court Issues Final Judgment in Pearlstein Suit
BLOCK INC: Bragar Eagel Reminds Dec. 12 Lead Plaintiff Naming Due
BRADLEY CORP: Jackson Sues Over Assemblers' Unpaid OT Wages
BRITISH COLUMBIA: Ct. of Appeal Ruling in Fuel Spill Suit Discussed

CHICK-FIL-A INC: Loses Bid to Seal Ortega's 2nd Amended Complaint
CLEAN HARBORS: New Jersey Court Refuses to Stay/Transfer Fogg Suit
CONSOLIDATED EDISON: Court Grants Bid to Dismiss Moses FLSA Suit
COSTCO WHOLESALE: Cappadora Labor Suit Dismissed
COSTCO WHOLESALE: No Decision Issued on Canela Suit Bench Trial

CYTODYN INC: Securities Class Action in Wash. Still in Early Stage
EMPIRES X CORP: Class Settlement Fairness Hearing Set October 2022
EXXON MOBIL: Judge Dismisses Securities Class Action Lawsuit
FRUIT FUSION: State Auto Given Default Judgment Over Patt's Claims
GEORGETOWN MEMORIAL: Appeals Arbitration Bid Denial in Marshall

HALLEN CONSTRUCTION: Rosario Appeals Civil Action Suit in N.Y.
HALSTED FINANCIAL: Court Grants Bids to Dismiss Benhayun Class Suit
JACKSON, MI: Court Affirms Summary Disposition in Hofmeister Suit
JOLO INC: Court Certifies Class in Saad Suit and Appoints Counsel
JUUL LABS: Bay District Schools to Join Vaping Class Action Suit

JUUL LABS: Leon County Schools to Join Vaping Class Action
KIA AMERICA: Hellmuth & Johnson Files Car Theft Class Action
KOHL'S CORP: $450K Class Settlement in Mollett Suit Wins Approval
LABORATORY CORPORATION: Appeals Class Definitions Ruling in Davis
LIVE WELL: Shakespeare's Bid to Amend Complaint Granted in Part

LOOP INDUSTRIES: Appeals From Class Action Bid Dismissal Due Oct 26
LOOP INDUSTRIES: Court Sets Jan. 2023 Hearing on Tremblay Suit Deal
LTD FINANCIAL: Jenkins Suit Remanded to Gaston County Super. Court
MAUI JIM: Illinois Court Strikes Pecho's Bid to Remand Class Suit
MDL 2543: Disbursement of $889K to Counsel in GM Switch Suit Okayed

META PLATFORMS: Tracks Users' Online Activity, Hughes Suit Says
MONSANTO CO: Roundup Settlement Fairness Hearing Set Jan. 12, 2023
NEW YORK: Agreement in Peoples v. Annucci Gets One Year Extension
NEXTLEVEL ASSOCIATION: Court Grants Bids to Dismiss Carpenter Suit
OREGON: Loses Bid for Interlocutory Appeal in Wyatt B. v. Brown

PETE AND GERRY'S: Bursor & Fisher Named Interim Counsel in Mogull
PFIZER INC: Bids to Appeal Orders in Lipitor Antitrust Suit Denied
POLARIS INDUSTRIES: 9th Cir. Flips Summary Judgment in Guzman Suit
POLARIS INDUSTRIES: Judgment vs. Albright in Guzman Suit Flipped
PREMIER NUTRITION: Denial of Injunction in Sonner Suit Affirmed

PRINCESS CRUISE: Class Action Trial Over COVID-19 Outbreak Begins
QUEST DIAGNOSTICS: Rest Period Class Certified in Stewart Suit
RLX TECH: New York Judge Dismisses Securities Class Action
SKANA ALUMINUM: Underpays Oilers/Maintenance Staff, McWilliams Says
SOULBOUND STUDIOS: Chronicles of Elyria Class Action Dismissed

STATE FARM: Third Circuit Affirms Dismissal of Geist Class Suit
SYMETRA ASSIGNED: Appeals Class Certification Order in White Suit
TILRAY BRANDS: Faces Langevin Class Suit Over Cannabis Products
TIMESHARE HELP: Perrong Suit Moved to Eastern District of Missouri
TRUTHFINDER LLC: Bid to Compel Arbitration in Mejia Suit Granted

UNITED STATES: Biden Admin. Responds to Crump Breach Class Action
UNITED STATES: Lambro Appeals FLSA Suit Dismissal
VARIABLE ANNUITY: Court Grants Bid to Dismiss Markham ERISA Suit
WAITR HOLDINGS: Appeals Summary Judgment Ruling in Bobby's Suit
WAYNE COUNTY, MI: Appeals Preliminary Approval of Bowles Suit Deal

[*] 1st Annual Complex Litigation Ethics Conference This Saturday

                            *********

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

The order, among other things, granted in part the Plaintiffs'
motion for class action certification and denied the cross motion
of Defendant River Meadows, LLC for severance.

Upon reading and filing the stipulation of discontinuance signed by
the attorneys for the parties on Aug. 10, 2022, the Appellate
Division unanimously dismisses said appeal.

A full-text copy of the Court's Sept. 30, 2022 Order is available
at https://tinyurl.com/2kb2w5z4 from Leagle.com.

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

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


ACCENTURE PLC: Appeals Class Cert. Ruling in Data Breach Suit
-------------------------------------------------------------
Accenture plc disclosed in its Form 10-K Report for the fiscal year
ended August 31, 2022, filed with the Securities and Exchange
Commission on October 12, 2022, that in the class action lawsuit
filed by consumers of Marriott International, Inc., over a data
breach, the court issued an order granting in part the plaintiffs'
motion for class certification, which Accenture is appealing.

On July 24, 2019, Accenture was named in a putative class action
lawsuit filed by consumers of Marriott International, Inc.
("Marriott") in the U.S. District Court for the District of
Maryland. The complaint alleges negligence by the Company, and
seeks monetary damages, costs and attorneys' fees and other related
relief, relating to a data security incident involving unauthorized
access to the reservations database of Starwood Worldwide Resorts,
Inc. ("Starwood"), which was acquired by Marriott on September 23,
2016.

Since 2009, the Company has provided certain IT infrastructure
outsourcing services to Starwood.

On October 27, 2020, the court issued an order largely denying
Accenture's motion to dismiss the claims against the Company.

On May 3, 2022, the court issued an order granting in part the
plaintiffs' motion for class certification, which Accenture is
appealing.

The Company continues to believe the lawsuit is without merit and
the Company will vigorously defend it. At present, the Company does
not believe any losses from this matter will have a material effect
on Company's results of operations or financial condition.

Accenture plc is an Irish-American professional services company
based in Dublin, specializing in information technology (IT)
services and consulting. Since 2019, it has headquarters in Dublin,
Ireland. It was founded on 1989.

ALLIANCE COAL: Court Grants in Part Bids to Compel in Brewer Suit
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In the case, FREDDIE BREWER, on Behalf of Himself and All Others
Similarly Situated, Plaintiff v. ALLIANCE COAL, LLC, et al.,
Defendants, Civil Action No. 7:20-CV-00041-DLB-EBA (E.D. Ky.),
Judge Edward B. Atkins of the U.S. District Court for the Eastern
District of Kentucky, Southern Division, Pikeville, grants in part
Excel Mining, LLC's Motion to Compel and Brewer's Motion to
Compel.

The case was brought by Brewer as a collective action pursuant to
the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 201 et
seq., and a class action under the Kentucky Wages and Hours Act
("KWHA"), against Defendants Alliance Coal, Alliance Resource
Operating Parties, L.P. ("AROP"), Alliance Resource Partners, L.P.
("ARLP"), Alliance Resource Management GP, LLC ("ARM"), Excel, and
MC Mining, LLC, alleging that while employed as a coal miner for
the Defendants at the Excel Mine and the MC Mining Complex located
in Pike County, Kentucky, the Defendants engaged in various
wage/hour and overtime violations.

Specifically, Brewer alleges that the Defendants (1) required
Brewer and similarly situated employees to arrive at work prior to
their scheduled shifts but did not pay employees for off-the-clock
work including "donning" their uniforms and protective equipment;
(2) failed to pay Brewer and similarly-situated employees for time
spent working after the end of their shifts including time spent
"doffing" their protective equipment; and (3) failed to include
bonus compensation in Brewer's and similarly-situated employees'
overtime pay calculations.

After filing the Complaint, Brewer submitted several consent
documents from such employees and former employees who wished to
opt-in to the action as "Opt-In Plaintiffs." On July 20, 2021, the
presiding District Judge granted Brewer's Motion for Conditional
Certification, following the two-step approach defined in Comer v.
Wal-Mart Stores, Inc., 454 F3.d 544, 546 (6th Cir. 2006).

The Court found that Brewer "sufficiently demonstrated for purposes
of conditional certification that the proposed class members were
similarly situated by way of the Defendants' common policies"
regarding the requirement that miners "work prior to and after
their scheduled shifts without pay" and their "failure to include
bonuses in overtime pay calculations." Accordingly, it defined the
class as "all individuals who work or have worked as coal miners at
the Excel Mine/MC Mining Complex between May 26, 2017 and the
present."

Following conditional certification of the class, and the Court's
approval of an opt-in consent form, Brewer filed additional consent
forms into the record. As it stands, the class consists of 31
individuals.

In the course of discovery, the parties articulated several
disagreements regarding the scope of discovery to which each party
is entitled. In an effort to resolve their dispute, the parties
requested a telephonic conference with Judge Atkins consistent with
local practice and the Referral Order. The Court held a telephonic
conference, but the parties were at an impasse regarding the scope
and breadth of discovery as it related to depositions,
interrogatories, and requests for production from Opt-In Plaintiffs
and six individual Defendants. During the conference, the parties
requested that they be permitted to simultaneously file motions to
compel briefing the issues. The Court allowed the parties to file
their motions, and also set aside the discovery deadline pending
resolution of the motions.

Excel's motion concerns a "common topic of dispute in FLSA actions:
the appropriate scope of discovery regarding named plaintiffs and
opt-in class members." In essence, it seeks to compel
individualized discovery from all 31 Opt-In Plaintiffs and
individuals who have submitted, or will submit, declarations in
support of class certification ("Declarants"). The individualized
discovery includes obtaining depositions from all Opt-In Plaintiffs
and Declarants; and compelling responses to interrogatories and
requests for production of documents, without objections, from all
Opt-In Plaintiffs.

For clarity, the Court will enumerate the requested relief as
follows:

     (1) Authorize the parties to depose all individuals who submit
affidavits or declarations on Brewer's behalf (Declarants), with
depositions not to exceed three hours each and an option to attend
remotely; and

     (2) Authorize individualized discovery from all Opt-In
Plaintiffs, including: (a) Deposing the remaining 29 Opt-In
Plaintiffs, with depositions not to exceed three hours; and (b)
compelling production of 15 interrogatories 3 and 9 requests for
production of documents served upon all 31 Opt-In Plaintiffs on
Jan. 4, 2022 with no objections.

As to its first request to depose Declarants, including but not
limited to Gary Adams and Richard Osborne, Excel argues that it is
entitled to the depositions.

Given Brewer's lack of apparent objection to deposing Declarants,
or to Excel's proposed framework to exclude them from the total
count of allowed depositions, Judge Atkins follows the precedent
set by the court in Branson v. All. Coal, LLC, No.
4:19-CV-00155-JHM-HBB, 2022 U.S. Dist. LEXIS 123731, at *17 (W.D.
Ky. July 13, 2022), and permits the Defendant to depose all
Declarants, and will deem those depositions excluded from the total
number allowed by the Court, as discussed below. Moreover, he
imposes the limitations offered by Excel: depositions of the
Declarants will not exceed hours and deponents will have the option
to attend by remote means.

The next request in Excel's motion is for the Court to authorize
the propounding of individualized discovery upon all Opt-In
Plaintiffs. Judge Atkins does not see a compelling reason to ask
opt-ins to cull through years of electronic records to produce
policies that would be created or at least maintained by Excel.
Based upon representations made by Excel in the record, the
information sought by these requests would seem to be readily
available to, and likely more easily accessed by, Excel. The
remaining discovery requests are not rife with legal jargon, nor
are they particularly difficult to understand.

However, Judge Atkins states that while some requests for
production may require sorting through years of electronic
communications, Requests for Production Nos. 1 & 4-9, are tailored
to seek discoverable information under Rule 26 while limiting the
amount of work required of both the Opt-In Plaintiffs and their
counsel. Brewer has not advised the Court of any particular reason
why the Opt-Ins would not be able to understand the requests for
information and documents, such as a language barrier. Thus, all 31
Opt-In Plaintiffs will be required to respond to the Defendant's 15
Interrogatories and 7 Requests for Production.

Judge Atkins also permits the Defendant to depose 10 Opt-In
Plaintiffs, roughly one-third of the entire class and a quantity
suggested by Brewer. He says deposing this sample size will permit
the Defendant to test responses to written discovery and obtain
additional testimony so that it may be adequately prepared to move
for decertification without overly burdening Brewer's counsel or
the Opt-In Plaintiffs. As proposed by Excel, with no particularized
objection from Brewer, each deposition will be limited to three
hours and Opt-In Plaintiffs will have the option to attend their
depositions remotely. As stated, the 10 depositions permitted are
exclusive of the depositions of the Declarants.

Next, Brewer asks the Court to compel a considerable amount of
discovery from Defendants Alliance Coal, ARLP, AROP, ARM, Excel,
and MC Mining. By Brewer's own categorization, he asks the Court to
compel discovery that fall into the following three categories: (1)
electronic payroll and timekeeping records (together
Payroll/Timekeeping Records); (2) Matrix Minor and Equipment
Tracking System records (Matrix Records) for all Opt-In Plaintiffs;
(3) a 10% random sample of [Matrix Records] of non-Opt-In miners at
each mine; and (4) disciplinary records relating to attendance
and/or tardiness, documents reflecting complaints about work hours,
documents reflecting any agreement or contract between an Opt-In
Plaintiff and a Defendant, and sheets that record early-in/early
out entries, to the extent they exist for all Opt-In Plaintiffs
during the time period March 21, 2015 to the present ('Related
Records').

Later in his motion, Brewer offers a laundry list of
interrogatories and requests for production to which Defendants
provided deficient responses.

Judge Atkins opines that the Court is not in the position to
speculate how Brewer seeks to organize the individual discovery
requests with respect to the categories. Thus, he instead assesses
the discoverability of the broader categories enumerated by
Brewer.

First, he orders Excelto produce electronic paystubs for all Opt-In
Plaintiffs, from March 2015 to the present, or when employment was
terminated, since these documents are maintained electronically and
the burden of production of the allegedly duplicative paystubs is
far less than described in the context of the paper timesheet.
Second, he opines there has not been an adequate showing that the
METS data from March 2015 to the present is relevant for spoliation
purposes or under Rule 26. For this reason, he declines to
administer spoliation sanctions on Defendants and will not compel
Defendants to produce any METS data at this time. Finally, to the
extent that the "Related Records" exist, or that each Defendant is
the actual custodian of the records, all the Defendants will be
compelled to produce the information and documents responsive to
Brewer's written discovery requests for Related Records.

Having fully considered the record and the parties' briefing, and
being otherwise sufficiently advised, Judge grants in part Excel's
Motion to Compel, as follows:

     a. Excel is permitted to depose each individual who has
submitted, or will submit, and affidavit or declaration in support
of certification of the collective class (Declarants). Depositions
of Declarants will not exceed three hours and deponents will have
the option to attend the deposition by remote means to be
determined by parties' counsel.

     b. Each Opt-In Plaintiff will respond to Excel's written
discovery requests consistent with this Order, including Excel's
Interrogatories Nos. 1-10 & 13-17; and Excel's Request for
Production of Documents Nos. 1 & 4-9.

     c. Excel is permitted to depose 10 Opt-In Plaintiffs.
Depositions of the Declarants will not count toward this total
number. Depositions of Opt-In Plaintiffs will not exceed three
hours and deponents will have the option to attend the deposition
by remote means to be determined by parties' counsel.

Judge Atkins also grants in part Brewer's Motion to Compel, as
follows:

     a. Excel will respond to interrogatories and requests for
production related to specific electronic timekeeping and payroll
records, as to each Opt-In Plaintiff and 10% of members of the
class who have not opted into this action.

     b. All Defendants will respond to interrogatories and requests
for production which inquire about timekeeping or payroll policies
or practices—including guidance given from the Parent Defendants
to Excel or MC Mining.

     c. Excel will produce a sample of paper timesheets from 10
Opt-In Plaintiffs from two random months each year during the
Relevant Time Period (March 2015 to the present).

     d. Excel will produce electronic paystubs for all Opt-In
Plaintiffs during the Relevant Time Period, from March 2015 until
the present.

     e. To the extent that such records exist, or that each
individual Defendant is a custodian of such records, Defendants
will produce information and documents responsive to Brewer's
request for Related Records, including disciplinary records
relating to attendance and/or tardiness, documents reflecting
complaints about work hours, documents reflecting any agreement or
contract between an Opt-In Plaintiff and a Defendant, and sheets
that record 'early-in/early out' entries.

The discovery deadlines are reinstated. The Court's schedule as set
forth in is amended as follows:

     1. In accordance with the Federal Rules of Civil Procedure,
the parties will conduct fact discovery on the issue of final
collective certification. Such discovery, including compliance with
the directives of this Order, will be concluded 90 days following
entry of this Order; and

     2. Ninety days following entry of this Order, the parties will
file a joint status report, including the status of the case at the
conclusion of fact discovery, the possibility of settlement, and if
applicable, a proposed briefing schedule on the issue of final
collective certification for the Court's adjudication.

A full-text copy of the Court's Oct. 5, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/3s7jbk37 from
Leagle.com.


ATLAS CAPITAL: Faces Class Action Suit for Defrauding Tenants
-------------------------------------------------------------
Isabel Song Beer, writing for amNew York, reports that following an
investigation by national housing watchdog group the Housing Rights
Initiative (HRI), three class action lawsuits have been filed
against New York City real estate companies for allegedly
defrauding tenants by abusing the 412-a tax incentive program.

The 421-a program is a partial tax exemption that lowers property
taxes and is granted to property developers who construct units
that include affordable housing.

Atlas Capital Group, Heatherwood and Artimus Construction -- the
real estate companies being sued -- were apparently receiving tens
of millions of dollars worth of 421-a benefits for developing their
buildings. Conditionally under 421-a, 100% of the units developed
were required to be rent stabilized.

However, the landlords allegedly cheated NYC rent stabilization
laws by maximizing rent increases as well as falsely registering
rental rates of apartments at inflated and illegal prices.

"The 421-a program costs taxpayers $1.7 billion a year, which is
larger than the entire budget of the City of Denver," said Aaron
Carr, founder and executive director of Housing Rights Initiative
in a statement on Oct. 12. "The fact that the New York State
government continues to defer its tax enforcement obligations to an
organization that has a fraction of a fraction of a fraction of
their budget is not just an unmitigated tragedy, it is a full blown
scandal."

According to HRI, thousands of current and former tenants at 54
Noll Street, Brooklyn, NY, 27-03 42nd Road Long Island City, NY,
and 260 West 26th Street New York, NY -- the buildings affected by
the lawsuits -- may be entitled to tens of millions of dollars in
damages. Legally, tenants being overcharged on rent are entitled to
properly stabilized leases, rent refunds and rent reduction.

amNew York is awaiting comment from Newman Ferrara LLP, the law
firm that filed the three lawsuits. [GN]

BED BATH: Says Si Securities Class Suit Without Merit
-----------------------------------------------------
Bed Bath & Beyond Inc. disclosed in its Form 10-Q Report for the
quarterly period ended August 27, 2022, filed with the Securities
and Exchange Commission on September 29, 2022, that the Company
believes that the claims in a putative securities class action and
shareholder derivative action filed against the Company captioned
Si v. Bed Bath & Beyond Corp., et al., Case No. 2:22-cv-02541, is
without merit.

On August 23, 2022, a putative securities class action and
shareholder derivative action was filed against the Company,
Gustavo Arnal (the Company's former Chief Financial Officer), and
certain third parties in the United States District Court for the
District of Columbia. The case, which is captioned Si v. Bed Bath &
Beyond Corp., et al., Case No. 2:22-cv-02541, asserts claims of
breach of fiduciary duty, negligent misrepresentation, and
violations of Sections 10(b) and 20(a) of the Exchange Act on
behalf of a putative class of purchasers of our securities from
March 25, 2022 through August 18, 2022. The Complaint alleges that
certain of Bed Bath's disclosures about the Company's revenue and
proposed divestments, as well as other disclosures made by certain
of the Company's investors about their holdings, during the
putative class period were materially false or misleading.

The Company is in the early stages of evaluating the complaint, but
based on current knowledge the Company believes the claims are
without merit.

Bed Bath & Beyond Inc. is an American chain of domestic merchandise
retail stores. The chain operates many stores in the United States,
Canada, Mexico, and Puerto Rico. Bed Bath & Beyond was founded in
1971 and is based in Union, New Jersey.

BIMBO BAKERIES: Illinois Court Dismisses Bartosiake Consumer Suit
-----------------------------------------------------------------
Judge Mary M. Rowland of the U.S. District Court for the Northern
District of Illinois, Eastern Division, grants the Defendant's
motion to dismiss the lawsuit entitled WAYNE BARTOSIAKE,
individually situated and on behalf of all others similarly
situated, Plaintiffs v. BIMBO BAKERIES USA, Inc., Defendant, Case
No. 21-cv-04495 (N.D. Ill.).

Bartosiake brings the lawsuit against Bimbo Bakeries USA, Inc.,
individually and on behalf of putative classes of Illinois,
Arkansas, and Iowa consumers alleging they were deceived by the
word "fudge" on the front label of the Defendant's Chocolate Fudge
Iced Cake (the "Product"). The Plaintiff brings claims under the
Illinois Consumer Fraud and Deceptive Business Practice Act
("ICFA"); Arkansas and Iowa consumer fraud laws; state law breaches
of express and implied warranty of merchantability; the
Magnuson-Moss Warranty Act ("MMWA"); and common law claims for
negligent misrepresentation, fraud, and unjust enrichment. The
Plaintiff also requests class-wide injunctive relief.

The Defendant has moved to dismiss the claims under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim and under
Federal Rule of Civil Procedure 12(b)(1), arguing that the
Plaintiff lacks standing to assert injunctive relief.

The front packaging of the Defendant's Product, made under the
Entenmann's brand, states "Chocolate Fudge" in large letters and
"Iced Cake" directly below in slightly smaller letters. The
Plaintiff claims that the cake purports to be iced with chocolate
fudge, and that the term "fudge" is misleading because it gives
consumers the impression the Product contains a greater relative
and absolute amount of fudge than it does. The Plaintiff alleges
that a reasonable consumer expects the term "fudge" to contain a
non-de-minimis relative amount of dairy ingredients, like milk and
butter, instead of vegetable oils and whey.

The Plaintiff expects the "fudge" in the Product to be a
traditional fudge made from sugar, butter, milk or cream, and
chocolate. But the ingredients, listed on the back of the package,
are vegetable oil (soybean), vegetable shortening (palm, soybean),
and whey. According to him, fudge's essential ingredients, butter
and milk, are substituted by lower quality and lower-priced
vegetable oils and whey. He alleges that he would not have paid as
much for the Product if the front label were not false and
misleading. In this suit, he seeks to represent an Illinois class,
as well as a multi-state class of Iowa and Arkansas consumers.

The Defendant moves to dismiss, arguing that its label is not
deceptive as a matter of law.

The Plaintiff says he wanted to purchase a product that contained
fudge, understood as being comprised of a non-de minimis amount of
milk fat ingredients, instead of mostly vegetable oils. He alleges
that the Defendant's false and deceptive representations and
omissions are material in that they are likely to influence
consumer purchasing decisions.

Yet, the Plaintiff's own complaint alleges that fudge can contain
vegetable oils: "the quality of fudge depends on the amount and
type of fat-contributing ingredients," and "the fat ingredients are
typically from dairy or vegetable oils," Judge Rowland notes.

As the Defendant points out, at times the Plaintiff appears to
allege that the Product does not contain ("traditional") fudge, and
other times, he claims that the Product uses lower quality fudge.

As the Defendant argues, the label of this mass-produced product
does not make any explicit ingredient or recipe claim. Moreover,
the Plaintiff's complaint does not explain why a reasonable
consumer would believe the word "fudge" refers only to the icing,
not the entire cake. The front label does not say "Fudge Icing",
"Iced with Fudge", or "Coated with Fudge." The consumer is
purchasing a cake: "Chocolate Fudge Iced Cake."

The Plaintiff relies on Bell v. City of Chicago, 835 F.3d 736, 738
(7th Cir. 2016), but that case does not support his argument, Judge
Rowland holds. Bell involved cheese products prominently labeled on
the front "100% Grated Parmesan Cheese." The Seventh Circuit
concluded that a plausible reading is that "100%" applies to all
three words: it's all cheese; all the cheese is Parmesan, and it's
all grated.

In addition, unlike here, the Bell plaintiffs alleged that they had
conducted consumer surveys showing that consumers were misled by
the label and also provided affidavits from linguists, Judge
Rowland says. There is no "100%" (or any percentage) ingredient
claim in this case. The front label makes no specific ingredient
claim at all. It simply describes the entire product as "Chocolate
Fudge Iced Cake."

Judge Rowland finds the Plaintiff has not sufficiently pled that a
reasonable consumer would be misled by the label, requiring
dismissal of the ICFA claim. The Plaintiff's State Consumer Fraud
Acts claims and the stand-alone common law fraud claim similarly
are based on a legally unreasonable interpretation of the Product's
front label and do not survive the dismissal motion. Therefore, his
ICFA, fraud and state consumer fraud acts claims are dismissed.

The Defendant argues that the Plaintiff's remaining claims all
fail. The Court agrees.

The Plaintiff's warranty claims are based on the same theory of
deception as alleged in the ICFA claim. An express warranty claim
requires that a seller: "(1) made an affirmation of fact or
promise; (2) relating to the goods; (3) which was part of the basis
for the bargain; and (4) guaranteed that the goods would conform to
the affirmation or promise." A breach of implied warranty of
merchantability occurs if the product is not "fit for the ordinary
purposes for which such goods are used."

However, Judge Rowland finds that the Plaintiff does not
sufficiently identify an actionable "affirmation of fact or
promise." And the Plaintiff does not allege that the cake is unfit
to eat (its ordinary purpose).

The Court's finding that a reasonable consumer would not be misled
for purposes of the ICFA claim applies as well to the warranty
claims.

The negligent misrepresentation and unjust enrichment claims are
also based on the same theory, Judge Rowland notes. The Plaintiff
concedes that the Defendant is correct that his claim of unjust
enrichment is predicated on the same allegations of fraudulent
conduct that support an independent claim of fraud. Accordingly,
the warranty, MMWA, negligent misrepresentation and unjust
enrichment claims are dismissed.

For the stated reasons, the Defendant's Motion to Dismiss is
granted. The Plaintiff is given leave to file an amended complaint
by Oct. 24, 2022, if the Plaintiff has a good faith basis for doing
so. Otherwise the dismissal of this complaint will convert to
dismissal with prejudice.

A full-text copy of the Court's Memorandum Opinion and Order dated
Sept. 29, 2022, is available at https://tinyurl.com/3fwhmnef from
Leagle.com.


BLACKBERRY LTD: Court Issues Final Judgment in Pearlstein Suit
--------------------------------------------------------------
Judge Colleen McMahon of the U.S. District Court for the Southern
District of New York issued a final judgment and order of dismissal
with prejudice in the lawsuit entitled MARVIN PEARLSTEIN,
Individually and On Behalf of All Others Similarly Situated,
Plaintiff v. BLACKBERRY LIMITED (formerly known as RESEARCH IN
MOTION LIMITED), THORSTEN HEINS, BRIAN BIDULKA, and STEVE
ZIPPERSTEIN, Defendants, Case No. 1:13-CV-7060-CM (S.D.N.Y.).

The matter came before the Court for hearing on the application of
the Settling Parties for approval of the Settlement set forth in
the Stipulation of Settlement dated June 7, 2022. Due and adequate
notice have been given of the Settlement.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the
Court approves the Settlement and finds that said Settlement is, in
all respects, fair, reasonable, adequate to, and in the best
interests of the Lead Plaintiffs, the Released Plaintiffs' Parties,
and each of the Class Members. It further finds the Settlement is
the result of arm's-length negotiations between experienced counsel
representing the interests of the Lead Plaintiffs, the Released
Plaintiffs' Parties, the Class Members, and Defendant BlackBerry.
Accordingly, the Settlement is approved in all respects and will be
consummated in accordance with its terms and provisions. The
Settling Parties are directed to perform the Stipulation.

The Action and all claims contained therein, as well as all the
Settled Claims, are dismissed with prejudice as against each and
all of the Released Defendant Parties, including BlackBerry,
Thorsten Heins, Brian Bidulka, and Steve Zipperstein. The Lead
Plaintiffs, the Released Plaintiffs' Parties, and the Class will
not make applications against any of Released Defendant Parties,
and Defendant BlackBerry will not make applications against the
Lead Plaintiffs or the Released Plaintiffs' Parties for fees,
costs, or sanctions pursuant to Rule 11, Rule 37, Rule 45 or any
other court rule or statute, with respect to any claims or defenses
in this Action or to any aspect of the institution, prosecution, or
defense of this Action.

Upon the Effective Date, the Lead Plaintiffs, the Released
Plaintiffs' Parties, and each of the Class Members will be deemed
to have, and by operation of this Judgment will have, fully,
finally, and forever released, relinquished, and discharged all
Released Claims (including Unknown Claims) as against the Released
Defendant Parties, whether or not such Class Member executes and
delivers a Claim Form or participates in the Settlement Fund.

Upon the Effective Date, all Class Members (including the Lead
Plaintiffs) and anyone claiming through or on behalf of any of
them, except any Person who has validly and timely requested
exclusion from the Class, will be forever barred and enjoined from
commencing, instituting, intervening in or participating in,
prosecuting, or continuing to prosecute any action or other
proceeding in any court of law or equity, arbitration tribunal,
administrative forum, or other forum of any kind or character
(whether brought directly, in a representative capacity,
derivatively, or in any other capacity) asserting any of the
Released Claims against any of the Released Defendant Parties.

Upon the Effective Date, each of the Released Defendant Parties
will be deemed to have, and by operation of the Judgment will have,
fully, finally, and forever released, relinquished, and discharged
the Lead Plaintiffs, the Released Plaintiffs' Parties, each and all
of the Class Members, and the Plaintiffs' Counsel from all claims
whatsoever arising out of, relating to, or in connection with the
investigation, institution, prosecution, assertion, settlement, or
resolution of the Action or the Released Claims, except for those
claims brought to enforce the Settlement.

Neither any objection to the Court's approval of the Plan of
Allocation submitted by Lead Counsel nor to any portion of this
order regarding the Attorneys' Fee and Expense Application will in
any way disturb or affect the finality of this Judgment.

Without affecting the finality of this Judgment in any way, the
Court retains continuing jurisdiction over: (a) implementation of
this Settlement; (b) disposition of the Settlement Fund; and (c)
all Settling Parties hereto for the purpose of construing,
enforcing and administering the Stipulation and this Judgment.

After completion of the processing of all claims by the Claims
Administrator, the Escrow Agent will disburse the Net Settlement
Fund in accordance with the Stipulation and Plan of Allocation
without further order of the Court.

The Court finds and concludes that the requested fee award is
reasonable and awards attorneys' fees of 33-1/3% percent of the
Settlement Fund, plus reimbursement of expenses in the amount of
$4,278.824.37, both to be paid from the Settlement Fund pursuant to
the Stipulation, upon entry of this Order, and awards the Lead
Plaintiff and Class Representative Todd Cox a compensatory award of
$100,000, and the Lead Plaintiff and Class Representative Mary
Dinzik a compensatory award of $100,000, to be paid after the
Effective Date.

Pursuant to and in full compliance with Rule 23 of the Federal
Rules of Civil Procedure, the Court finds and concludes that due
and adequate notice was directed to all Class Members advising them
of the Plan of Allocation and of their right to object, and a full
and fair opportunity was given to all Class Members to be heard
with respect to the Plan of Allocation.

The Action is dismissed in its entirety with prejudice as to all
Defendants.

All agreements made and orders entered during the course of the
Action relating to the confidentiality of information will survive
this Order, pursuant to their terms.

In the event that the Settlement does not become Final in
accordance with the Stipulation, or the Effective Date does not
occur, this Judgment will be rendered null and void to the extent
provided by and in accordance with the Stipulation and will be
vacated. In such event, all orders entered and releases delivered
in connection herewith will also be null and void to the extent
provided by and in accordance with the Stipulation, and this
litigation will revert to the state at which it existed on April 6,
2022.

There is no just reason for delay in the entry of this Judgment and
immediate entry by the Clerk of the Court is expressly directed
pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.

A full-text copy of the Court's Final Judgment and Order dated
Sept. 29, 2022, is available at https://tinyurl.com/3c98z5xa from
Leagle.com.


BLOCK INC: Bragar Eagel Reminds Dec. 12 Lead Plaintiff Naming Due
-----------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized stockholder
rights law firm, disclosed that a class action lawsuit has been
filed against Block, Inc. ("Block" or the "Company") (NYSE: SQ) in
the United States District Court for the Southern District of New
York on behalf of all persons and entities who purchased or
otherwise acquired Block securities between November 4, 2021 and
April 4, 2022, both dates inclusive (the "Class Period"). Investors
have until December 12, 2022 to apply to the Court to be appointed
as lead plaintiff in the lawsuit.

Block, formerly known as Square, Inc., is a technology company that
creates financial service tools. Block's segments include Square,
which offers financial tools for sellers, and Cash App, which
provides financial tools for individuals.

On April 4, 2022, Block announced that a former employee had
improperly downloaded certain reports of Block's subsidiary, Cash
App Investing, on December 10, 2021. The information in the reports
included full customer names and brokerage account numbers, as well
as portfolio value, brokerage portfolio holdings, and/or stock
trading activity. As many as 8.2 million Cash App Investing
customers were affected. Prior to April 4, 2022, Block had not
disclosed this information to shareholders.

On this news, Block's stock price fell by more than 6%, damaging
investors.

The Block class action lawsuit alleges that defendants throughout
the Class Period failed to disclose that: (i) Block lacked adequate
protocols restricting access to customer sensitive information;
(ii) as a result, a former employee was able to download certain
reports of Block's subsidiary, Cash App investing, containing full
customer names and brokerage account numbers, as well as brokerage
portfolio value, brokerage portfolio holdings, and/or stock trading
activity; and (iii) consequently, Block was reasonably likely to
suffer significant damage including reputational harm.

If you purchased or otherwise acquired Block shares and suffered a
loss, are a long-term stockholder, have information, would like to
learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Brandon Walker or Melissa Fortunato by
email at investigations@bespc.com, telephone at (212) 355-4648, or
by filling out this contact form. There is no cost or obligation to
you.

About Bragar Eagel & Squire, P.C.:

Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.

Contacts

Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]

BRADLEY CORP: Jackson Sues Over Assemblers' Unpaid OT Wages
-----------------------------------------------------------
CRAIG JACKSON, on behalf of himself and all others similarly
situated, Plaintiff v. BRADLEY CORPORATION, Defendant, Case No.
2:22-cv-01185-LA (E.D. Wis., Oct. 5, 2022) is a class action
against the Defendant for unpaid overtime compensation, unpaid
straight time (regular) and/or agreed upon wages, liquidated
damages, costs, attorneys' fees, and declaratory and/or injunctive
relief pursuant to the Fair Labor Standards Act and  Wisconsin's
Wage Payment and Collection Laws.

The Plaintiff was hired by the Defendant as an hourly-paid,
non-exempt employee in the position of assembler working at
Defendant's Menomonee Falls, Wisconsin location from May 2020.

Bradley Corporation manufactures commercial plumbing fixtures and
washroom accessories.[BN]

The Plaintiff is represented by:

          James A. Walcheske, Esq.
          Scott S. Luzi, Esq.
          David M. Potteiger, Esq.
          WALCHESKE & LUZI, LLC
          235 N. Executive Drive, Suite 240
          Brookfield, WI 53005
          Telephone: (262) 780-1953
          Facsimile: (262) 565-6469
          E-mail: jwalcheske@walcheskeluzi.com
                  sluzi@walcheskeluzi.com
                  dpotteiger@walcheskeluzi.com

BRITISH COLUMBIA: Ct. of Appeal Ruling in Fuel Spill Suit Discussed
-------------------------------------------------------------------
John Boivin, writing for Castlegar News, reports that a lawyer
representing victims of the 2013 fuel spill into Lemon Creek says
he's disappointed with the provincial government's response to
their class-action lawsuit.

"It is regrettable that the defendants, including British Columbia,
are playing such hardball with a class of fuel spill victims on the
mere procedural question of whether their claims can be heard
together under the Class Proceedings Act," says David Aaron.

Aaron was in court on Sept. 8, appearing before the B.C. Court of
Appeal for the second time on the question of whether the victims
of the fuel spill represented a class of people who can seek
damages as a whole. A judge had already ruled once that it could
proceed as a class action, but that was appealed to the higher
court. On that court's direction, the judge adjusted his ruling in
May 2021 and re-certified the class action -- only to have it
appealed by the defendants in the case again.

"Basically the Court of Appeal told the chamber judge to do
something, and he did it," explains Aaron. "And the second appeal
is whether he did it properly."

The original lawsuit stems from the July 2013 spill of 35,000
litres of jet fuel into Lemon Creek by a transport driver making a
delivery to a firefighting operation. The spill forced the
evacuation of thousands of people living up to 40 kilometres
downstream in the Slocan Valley.

The spill also killed fish and forced residents to get alternate
sources of drinking water for themselves and livestock for days.
Residents who were affected by the spill launched the suit for
damages. And since then, Aaron says the province and other
defendants have been using their deep pockets to delay justice for
residents seeking damages.

"It is all about access to justice and judicial economy, and the
province knows this," he told the Valley Voice. "It's disappointing
the province is creating such an uphill climb for the residents of
the Slocan Valley, who to this day, over nine years after the
spill, have not been compensated for their evacuation costs.

"You would think that at least the province would be more
supportive of class proceedings as a vehicle to advance public
interest litigation on behalf of an injured community."

He also says it's ironic because Kootenay West MLA Katrine Conroy
was a vocal advocate for timely compensation when in opposition.

"Now that she is in government, she has been reticent and has
ostensibly failed to see this matter through to settlement on
behalf of her constituents," he says.

Wheels turn slowly

The Court of Appeal could throw out the second application before
them, allowing the class action suit to move forward to trial. Or,
they could direct the lower-level court to take another crack at
determining if it is a proper class action. In either case,
however, the end result is more delays to the suit.

"The last appeal, the hearing date was Oct. 15 of 2018, and the
judgement was issued the following April of 2019," he says. "That
gives you a yardstick for how long the court might ruminate over
this matter before issuing judgement."

Aaron says they have already lost people who moved the case
forward, like Marilyn Burgoon, who launched the historic case in
the first place. The community activist died in December 2019.

"The wheels of justice turn slowly, lawyers are used to that, but I
don't expect the community to be accepting of that and I don't
think they should be." [GN]

CHICK-FIL-A INC: Loses Bid to Seal Ortega's 2nd Amended Complaint
-----------------------------------------------------------------
In the case, Ronald Ortega, Plaintiff v. Chick-fil-A, Inc.,
Defendant, Case No. 2:21-cv-00845-KJM-CKD (E.D. Cal.), Judge
Kimberly J. Mueller of the U.S. District Court for the Eastern
District of California denies the Defendant's request that the
unredacted Second Amended Complaint be sealed.

Mr. Ortega brings this proposed class action against Chick-fil-A.
He seeks to file an unredacted Second Amended Complaint (SAC),
which, Chick-fil-A claims, contains "commercially sensitive and
propriety information." Accordingly, Chick-fil-A requests the
unredacted SAC be sealed.

Judge Mueller explains that courts grant requests to seal records
in civil cases in only limited circumstances, such as to protect
against "gratification of private spite or promotion of public
scandal" or to preclude court dockets from being "reservoirs of
libelous statements" or "sources of business information that might
harm a litigant's competitive standing." When a party moves to seal
a record, the court determines whether the underlying filing is
"more than tangentially related to the merits of a case." If so,
then a party seeking to seal the record must satisfy the
"stringent" compelling-reasons standard.

Chick-fil-A asks to seal a complaint. A request to seal all or part
of a complaint must clearly meet the compelling reasons standard.
Applying this standard, "a court may seal records only when it
finds 'a compelling reason and articulates the factual basis for
its ruling, without relying on hypothesis or conjecture,'" and
"then 'conscientiously balances the competing interests of the
public and the party who seeks to keep certain judicial records
secret.'" The compelling-reasons standard applies even if the
contents were previously filed under seal or are covered by a
generalized protective order.

Chick-fil-A seeks to withhold two types of information from the
public: "(1) sources of confidential business information that if
publicized could harm Chick-fil-A's competitive standing; and (2)
internal business materials relating to its communications with
franchisees, employees, and customers about their personal
experiences with the Chick-fil-A brand and name." It explains that
these citations are confidential under the Stipulated Protective
Order.

But, Judge Mueller finds that Chick-fil-A does not provide
compelling reasons to overcome the "strong presumption in favor of
access" for either type of information.

First, Chick-fil-A seeks to prevent the disclosure of nine
statements quoted from documents produced in discovery. Each
concerns Chick-fil-A's alleged business plan to improve delivery
sales by increasing delivery menu prices while decreasing delivery
fees. They discuss the alleged plan, its benefits and drawbacks,
and findings from consumer research. In support of sealing,
Chick-fil-A offers the same generalized argument for each of the
nine quotations: they reveal internal e-mail discussions about
"consumer testing and research findings," which cost "considerable
resources and time," and as a result, their disclosure would allow
competitors to reap the rewards of Chick-fil-A's investment.

Broad claims that Chick-fil-A "expended considerable resources and
time" and that competitors will "reap" the benefits ring hollow,
Judge Mueller holds. The company's plan to reduce delivery fees and
increase delivery menu prices is disclosed on the first page of the
complaint. Chick-fil-A does not explain how these quotations reveal
information other than that which is already disclosed in the
complaint. And although some of the quoted language justifies
Chick-fil-A's plans, it is unclear how a competitor could profit
from information and explanations attributed to unnamed employees.
The closest call is the first challenged quotation, which
references information on average check amounts taking account of
price inflation as compared to competitors' prices. But Chick-fil-A
does not explain how any competitor could unfairly reap the benefit
of this information.

Second, Chick-fil-A seeks to seal four quotations from non-parties,
including Chick-fil-A's employees, franchisees, and customers. It
claims that sealing these quotations is necessary to preserve
franchisees' and customers' privacy.

That argument, according to Judge Mueller, would be more persuasive
if the Plaintiff had not already anonymized the quoted language.
Because the quoted language reveals no private or identifying
information, Chick-fil-A has not shown compelling reasons to seal.

Judge Mueller denies Chick-fil-A's request to seal. Ortega is
directed to file the unredacted Second Amended Complaint.

The Order resolves ECF Nos. 67, 72.

A full-text copy of the Court's Sept. 30, 2022 Order is available
at https://tinyurl.com/ywshmya6 from Leagle.com.


CLEAN HARBORS: New Jersey Court Refuses to Stay/Transfer Fogg Suit
------------------------------------------------------------------
Judge Kevin McNulty of the U.S. District Court for the District of
New Jersey denies the Defendant's motion to stay or transfer the
lawsuit captioned OREESE FOGG and KYLE WALKER, individually and on
behalf of all persons similarly situated, Plaintiffs, v. CLEAN
HARBORS ENVIRONMENTAL SERVICES, INC., Defendant, Case No. 21-7626
(KM) (JBC) (D.N.J.).

The matter comes before the Court on the Defendant's motion to stay
or, alternatively, transfer the action under the first-filed rule.

Plaintiffs Fogg and Walker filed this putative class action (the
"Fogg action") on March 31, 2021, for unpaid wages on behalf of
"current and former non-exempt, hourly employees of Clean Harbors
who worked at one of Clean Harbors' facilities."

Clean Harbors seeks to stay the Fogg action until the disposition
of an ongoing putative class action that it contends is
substantially similar: McMurtry v. Clean Harbors Environmental
Services, Inc., No. 20-cv-6774 (D.N.J.).

The McMurtry action was filed first-in-time in New Jersey state
court on April 21, 2020, and removed to the District of New Jersey
on June 2, 2020; the matter is currently before Judge Evelyn Padin.
It seeks to certify a class on behalf of "current and former
employees of the Clean Harbors Defendants who performed work at New
Jersey facilities owned by Public Service Electric & Gas."

The Fogg Plaintiffs allege that they performed substantial
off-the-clock work without being paid. Clean Harbors also allegedly
failed to accurately record the hours the Plaintiffs worked and
managers often did not turn in time sheets, resulting in employees
not being paid for their work. At times, the Plaintiffs were not
compensated for time spent in mandatory monthly training sessions,
which lasted approximately two to three hours.

As a result of Clean Harbors' alleged failure to pay the Fogg
Plaintiffs for all hours worked, they claim violations of the Fair
Labor Standards Act; the New Jersey Wage and Hour Law, for failure
to pay overtime wages; and the New Jersey Wage Payment Law, for
failure to pay timely wages.

The McMurtry complaint states that, in 2011 and 2012, New Jersey
was struck by multiple storms, which caused "severe damage" to the
State's utility infrastructure. As a result, the New Jersey Board
of Public Utilities issued an order in January 2013 requiring
electricity suppliers to "carefully examine their infrastructure
and determine how they could be better protected from flooding." In
response to that order, Public Service Electric & Gas ("PSE&G")
petitioned the Board of Public Utilities for approval of a program
aimed at restructuring its electric and gas infrastructure,
referred to as "Energy Strong I." Following various proceedings,
hearings, and meetings, the Board of Public Utilities approved
PSE&G's project.

Several years later, the Board of Public Utilities established a
regulatory mechanism supporting the implementation of an
Infrastructure Investment Program, which allowed a utility to
accelerate its investment in the construction, installation, and
rehabilitation of certain non-revenue producing utility plant and
facilities. Pursuant to the Infrastructure Investment Program
rules, PSE&G petitioned for another project aimed at improving,
modernizing, and rebuilding its systems in various ways, referred
to as "Energy Strong II." In September 2019, following a series of
hearings and meetings, the Board of Public Utilities approved the
project.

PSE&G contracted with Clean Harbors to provide services for Energy
Strong I and II. Clean Harbors in turn assigned the putative class
members to perform work in relation to those projects at the PSE&G
facilities. The McMurtry Plaintiffs' work included, among other
things, the use of equipment and machinery to remove oil, replace
pipelines, and assist with the installation of new transformer
structures. The McMurtry Plaintiffs assert that their work at the
PSE&G facilities qualified as "construction work on a public
utility," but Clean Harbors failed to pay them at the required
"prevailing wage" rate for such work. The Plaintiffs submitted time
sheets for hours worked and believe that those time sheets have
been maintained pursuant to legal requirements.

As a result, the McMurtry Plaintiffs allege that Clean Harbors
violated New Jersey's Public Utility Act and Financial Assistance
Act.

Under the "first-filed" rule, a district court may "enjoin the
subsequent prosecution of proceedings involving the same parties
and the same issues already before another district court,"
E.E.O.C. v. Univ. of Pa., 850 F.2d 969, 971 (3d Cir.1988).

In their briefs, the parties apply different standards for
application of the first-filed rule. Clean Harbors employs the
"substantial overlap" test, which applies when the parties and
issues in the two actions "substantially overlap," even if the
matters are not identical. In contrast, Fogg and Walker discuss
whether the two matters are "truly duplicative," i.e., involve the
same issues and same parties (Coyoy v. United States, 526 F.Supp.3d
30, 43 (D.N.J. 2021)).

In Coyoy, Judge McNulty recently rejected the use of the more
relaxed "substantial overlap" test and held that application of the
first-filed rule depends on whether the two actions involve the
"same issues" and "same parties," as set forth by the Third Circuit
in E.E.O.C. v. University of Pennsylvania.

Regardless, even if the "substantial overlap" test applied, Judge
McNulty finds Clean Harbors could not satisfy it. Clean Harbors
asserts that the putative classes in each case substantially
overlap because both actions are brought against Clean Harbors,
both putative classes consist of employees suing for unpaid wages,
and both cases involve discovery related to hours worked and rates
of pay. The similarities, however, end there.

While the McMurtry and Fogg actions are generally similar, Clean
Harbors' comparison ignores some significant distinctions between
the two, Judge McNulty observes. First, contrary to Clean Harbors'
position, the two putative plaintiff classes do not substantially
overlap. The Fogg action seeks to certify a class of employees "who
worked at one of Clean Harbors' facilities," while the McMurtry
action seeks to certify a class of employees, who were assigned to
perform work on PSE&G facilities. Although, as Clean Harbors
argues, it is conceivable that an employee could be part of both
classes, the proposed class definitions are not directed at similar
groups of employees.

Second, Judge McNulty finds the underlying factual circumstances
giving rise to the claims are entirely distinct. In the Fogg
action, the Plaintiffs assert that Clean Harbors failed to pay
employees at its own facilities for time spent working
off-the-clock or in mandatory meetings, and failed to pay overtime
wages for work in excess of 40 hours per week. In the McMurtry
action, the Plaintiffs allege that Clean Harbors failed to pay them
at the "prevailing wage" rate for work they conducted at PSE&G
facilities in relation to PSE&G projects that qualified as
construction work on a public utility.

The Fogg complaint makes no specific reference to work performed at
PSE&G facilities or an entitlement to be paid at the corresponding
"prevailing wage" rate. Likewise, the McMurtry complaint makes no
reference to unpaid wages for meetings, off-the-clock work, or
overtime. In essence, Clean Harbors is alleged to have committed
two distinct wrongs against two distinct groups of workers. These
distinctions suggest that it is unlikely that allowing these cases
to proceed at the same time would result in "conflicting
judgments," Judge McNulty points out.

Therefore, even applying the "substantial overlap" test for the
sake of argument, Judge McNulty says he would decline to apply the
first-filed rule. A fortiori, Judge McNulty would deny the motion
under the more rigorous test requiring that the issues and parties
in the two actions be the same. For similar reasons, he finds no
sufficient grounds to transfer the case to the docket of the judge
hearing the first-filed case.

For the reasons set forth, the motion to stay or transfer the
action is denied. A separate order will issue.

A full-text copy of the Court's Opinion dated Sept. 29, 2022, is
available at https://tinyurl.com/2fwbajny from Leagle.com.


CONSOLIDATED EDISON: Court Grants Bid to Dismiss Moses FLSA Suit
----------------------------------------------------------------
In the case, RAVEN MOSES, individually and on behalf of all others
similarly situated, et al., Plaintiffs v. CONSOLIDATED EDISON
COMPANY OF NEW YORK, INC., ET AL., Defendants, Case No. 18-cv-1200
(ALC) (S.D.N.Y.), Judge Andrew L. Carter, Jr. of the U.S. District
Court for the Southern District of New York grants Consolidated
Edison of New York's motion to dismiss.

The Plaintiffs, a group of workers employed as flagmen or flaggers,
brought this putative class action against a group of Defendants,
including Consolidated Edison of New York ("ConEd"). They allege
that Defendant Griffin Industries and Griffin Securities (together,
"Griffin") failed to pay their wages at the prevailing rates. They
bring suit against ConEd under a joint-employer theory. Magistrate
Judge Ona Wang previously granted the Plaintiffs motion to
conditionally certify a FLSA collective.

Defendant ConEd moves to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure to dismiss 116 of the opt-in FLSA
plaintiffs. It argues that FLSA claims of 116 opt-in plaintiffs
should be dismissed because their claims are time-barred.

The Plaintiff appears to argue that dismissal of these plaintiffs
would be premature because their class certification motion has not
yet been decided. One does not preclude the other. They also argue
that discovery is ongoing, but, notably, they do not argue that
further discovery would change the employment dates they provided
to the Defendant.

Judge Carter states that the FLSA imposes a two-year statute of
limitations period for actions brought under that statute unless
the defendants' violation was willful. That period may be extended
to three years for willful violations. Using the three-year statute
of limitations as the outward date, Judge Wang surmised that FLSA
claims for plaintiffs who worked for ConEd before July 20, 2017
were time barred.

Judge Carter sees no reason to contradict Judge Wang. Given this,
the FLSA claims for the Plaintiffs who either (i) ceased working
for Griffin before July 20, 2017 or (ii) although still employed by
Griffin, did not work on a ConEd project after July 20, 2017.

For these reasons, Judge Carter grants the Defendant's motion to
dismiss. The Clerk of the Court is respectfully directed to
terminate ECF No. 603.

A full-text copy of the Court's Sept. 30, 2022 Opinion & Order is
available at https://tinyurl.com/4dbr6mze from Leagle.com.


COSTCO WHOLESALE: Cappadora Labor Suit Dismissed
------------------------------------------------
Costco Wholesale Corp. disclosed in its Form 10-K Annual Report for
the fiscal year ended August 28, 2022 filed with the Securities and
Exchange Commission on October 4, 2022, that the court dismissed
the labor class action captioned Cappadora v. Costco Wholesale
Corp. (Case No. 1:20-cv-06067; E.D.N.Y.).

In December 2020, a former employee filed suit against the Company
asserting collective and class claims on behalf of non-exempt
employees under the Fair Labor Standards Act and New York Labor Law
for failure to pay for all hours worked, failure to pay certain
non-exempt employees on a weekly basis, and failure to provide
proper wage statements and notices. The plaintiff also asserted
individual retaliation claims. Cappadora v. Costco Wholesale Corp.
(Case No. 1:20-cv-06067; E.D.N.Y.).

An amended complaint was filed, and the Company denied the material
allegations of the amended complaint.

Based on an agreement in principle concerning settlement of the
matter, involving a proposed payment by the Company of an
immaterial amount, the federal action has been dismissed.

Costco Wholesale Corporation -- https://www.costco.com/ -- is an
American multinational corporation which operates a chain of
membership-only big-box retail stores.[BN]

COSTCO WHOLESALE: No Decision Issued on Canela Suit Bench Trial
---------------------------------------------------------------
Costco Wholesale Corp. disclosed in its Form 10-K Annual Report for
the fiscal year ended August 28, 2022 filed with the Securities and
Exchange Commission on October 4, 2022, that no decision has been
issued during the bench trial of Canela v. Costco Wholesale Corp.


The Company is a defendant in an action commenced in July 2013
under the California Labor Code Private Attorneys General Act
(PAGA) alleging violation of California Wage Order 7-2001 for
failing to provide seating to employees who work at entrance and
exit doors in California warehouses. Canela v. Costco Wholesale
Corp. (Case No. 2013-1-CV-248813; Santa Clara Superior Court). The
complaint seeks relief under the California Labor Code, including
civil penalties and attorneys' fees. The Company filed an answer
denying the material allegations of the complaint.

A bench trial was held in June and July; no decision has been
issued.

Costco Wholesale Corporation -- https://www.costco.com/ -- is an
American multinational corporation which operates a chain of
membership-only big-box retail stores.[BN]

CYTODYN INC: Securities Class Action in Wash. Still in Early Stage
------------------------------------------------------------------
CytoDyn Inc. disclosed in its Form 10-Q Report for the quarterly
period ended August 31, 2022, filed with the Securities and
Exchange Commission on October 11, 2022, that the putative
class-action lawsuit filed in Washington by a stockholder against
the Company and certain current and former officers is still in its
early stage, and the Company and the individual defendants deny all
allegations of wrongdoing in the complaint and intend to vigorously
defend the matter.

On March 17, 2021, a stockholder filed a putative class-action
lawsuit (the "March 17, 2021 lawsuit") in the U.S. District Court
for the Western District of Washington against the Company and
certain current and former officers. The complaint generally
alleges the defendants made false and misleading statements
regarding the viability of leronlimab as a potential treatment for
COVID-19.

On April 9, 2021, a second stockholder filed a similar putative
class action lawsuit in the same court, which the plaintiff
voluntarily dismissed without prejudice on July 23, 2021.

On August 9, 2021, the court appointed lead plaintiffs for the
March 17, 2021 lawsuit.

On December 21, 2021, lead plaintiffs filed an amended complaint,
which is brought on behalf of an alleged class of those who
purchased the Company's common stock between March 27, 2020 and May
17, 2021.  The amended complaint generally alleges that the Company
and certain current and former officers violated Sections 10(b)
and/or 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder by making purportedly false or misleading
statements concerning, among other things, the safety and efficacy
of leronlimab as a potential treatment for COVID-19, the Company's
CD10 and CD12 clinical trials, and its HIV BLA.  The amended
complaint also alleges that the individual defendants violated
Section 20A of the Exchange Act by selling shares of the Company's
common stock purportedly while in possession of material nonpublic
information.  The amended complaint seeks, among other relief, a
ruling that the case may proceed as a class action and unspecified
damages and attorneys' fees and costs.

On February 25, 2022, the defendants filed a motion to dismiss the
amended complaint.

On June 24, 2022, lead plaintiffs filed a second amended complaint.
The second amended complaint is brought on behalf of an alleged
class of those who purchased the Company's common stock between
March 27, 2020 and March 30, 2022, makes similar allegations, names
the same defendants, and asserts the same claims as the prior
complaint, adds a claim for alleged violation of Section 10(b) of
the Exchange Act and Rule 10b-5(a) and (c) promulgated thereunder,
and seeks the same relief as the prior complaint.

The Company and the individual defendants deny all allegations of
wrongdoing in the complaint and intend to vigorously defend the
matter. Since this case is in an early stage where the number of
plaintiffs is not known, and the claims do not specify an amount of
damages, the Company is unable to predict the ultimate outcome of
the lawsuit and cannot reasonably estimate the potential loss or
range of loss the Company may incur.

CytoDyn, Inc. is a clinical-stage biotechnology company, which
engages in the development of innovative treatments for multiple
therapeutic indications based on leronlimab. Its product include
HIV, Cancer, graft-versus-host disease (GVHD), and COVID-19. The
company was founded by Allen D. Allen on May 2, 2002 and is
headquartered in Vancouver, WA.

EMPIRES X CORP: Class Settlement Fairness Hearing Set October 2022
------------------------------------------------------------------
Patricia Patino, Esq., of Carlton Fields, in an article for
JDSupra, report that two plaintiffs in Miami-Dade County have filed
a class action complaint against cryptocurrency platform Empires X
Corp. and its founders based on an alleged Ponzi scheme. In
Villanueva v. Empires X Corp., pending in Florida's Eleventh
Judicial Circuit, the plaintiffs allege that they, as well as
several other damaged investors, provided millions of dollars to
Empires X Corp. based on extensive misrepresentations that Empires
X Corp. was a legitimate investment opportunity for trading
cryptocurrency. The plaintiffs claim, however, that Empires X Corp.
was nothing but a sham and that Empires X Corp. and its founders
converted the investment funds provided for their own personal use
without providing investors with any of the promised profits. The
plaintiffs are seeking to bring claims on their own behalf and for
all persons who used the Empires X platform to place cryptocurrency
investment orders based on the well-established requirements
detailed in Florida Rule of Civil Procedure 1.220: numerosity,
commonality, typicality, and adequate representation.

What makes this proposed class action different from the typical
class action is that one of the defendants, co-founder Joshua David
Nicholas, has agreed to help the proposed class recoup what they
can from Empires X Corp. and the other co-founders, who have
purportedly gone "on the run" with the stolen funds. Nicholas
claims to have no funds to make restitutionary payments to the
plaintiffs, but he does possess "detailed information regarding the
inner workings of the Empires X Ponzi scheme," information likely
to lead to additional evidence of the other defendants' liability,
and information of any assets remaining in the United States for
potential execution in the future. Accordingly, when the plaintiffs
moved for preliminary approval of the class action settlement and
certification, Nicholas did not oppose the motion.

On August 30, 2022, the court approved the unopposed motion and
preliminarily approved the class action settlement and
certification. The final approval hearing is set for late October
"to consider the fairness, reasonableness, and adequacy of the
proposed settlement and to determine whether the settlement should
be finally approved." Whether the settlement and reliance upon a
co-defendant will prove to be fruitful remains to be seen. However,
the case should prove to be interesting given the facts. Stay tuned
for updates. [GN]

EXXON MOBIL: Judge Dismisses Securities Class Action Lawsuit
------------------------------------------------------------
Shearman & Sterling disclosed that on September 29, 2022, Chief
Judge David C. Godbey of the United States District Court for the
Northern District of Texas dismissed a putative class action
asserting claims under the Securities Exchange Act of 1934 against
an oil company and certain of its officers. Yoshikawa v. Exxon
Mobil Corp., No. 3:21-CV-00194-N, 2022 WL 4677621 (N.D. Tex. Sept.
29, 2022). Plaintiffs alleged that the company made
misrepresentations in connection with the company's purchase of
certain oil and gas assets and its expected production from those
assets. The Court held that plaintiffs failed to adequately allege
scienter but granted plaintiffs' request for leave to amend with
respect to certain alleged misstatements as to which the Court held
plaintiffs had alleged a plausible theory of falsity and
materiality.

Concluding that dismissal was required because plaintiffs had not
adequately pleaded the necessary strong inference of scienter, the
Court explained that plaintiffs' scienter allegations were "largely
impermissible group pleading" because they failed to distinguish
each defendant and his or her specific connection to a challenged
statement. Id. at *3. The Court rejected plaintiffs' argument that
it was sufficient to make allegations as to "senior [company]
management," "corporate officials," or "executives"; rather, the
Court emphasized that "an officer's position on its own is
insufficient to support an inference of scienter." Id. Similarly,
the Court rejected as vague and conclusory the allegation that it
was "common knowledge throughout the company" that a particular
production goal was not attainable. Id. The Court also rejected the
argument that knowledge should be imputed to individual executives
under the "core operations" doctrine, which the Court emphasized
was only potentially applicable in "rare case[s]" and "special
circumstances" not alleged by plaintiffs. Id. at *4. And the Court
rejected plaintiffs' scienter arguments based on the company's
alleged use of nondisclosure agreements and the existence of an SEC
investigation -- which the Court noted had been closed. Id.

Having disposed of plaintiffs' "group pleading" allegations, the
Court also evaluated and rejected plaintiffs' remaining scienter
allegations that were directed to individual defendants. The Court
first considered and rejected plaintiffs' scienter arguments as to
the company's CEO, who allegedly signed a public letter and several
SEC filings and made public statements regarding the company's
success in the relevant geographical area while allegedly knowing
that "drilling times, production rates, and resource estimates were
worse than [the company] was indicating." Id. While plaintiffs
alleged that the CEO spoke about his knowledge of the relevant
geographical area, the Court found this statement to be vague and
insufficient to show that the CEO did not believe the challenged
statements. Id. at *5. The Court also explained that the allegation
that the CEO engaged in a site visit was not accompanied by any
detail showing that the CEO learned of the issues alleged by
plaintiffs. Id. The Court further concluded that plaintiffs'
allegation that the CEO communicated with "executives" was not
enough to show that the CEO had specific communications with one
particular executive regarding reserves calculations that
plaintiffs contended were falsified. Id. The Court similarly
rejected plaintiffs' argument that the CEO had access to reserves
and production data, which the Court emphasized failed to show that
the CEO actually had knowledge of information contradicting the
challenged statements, particularly given that plaintiffs also
alleged that certain records were inaccurate. Id. at *6. Finally,
the Court rejected arguments that the CEO was motivated by his
compensation package -- which the Court noted was a motive common
to nearly every corporate executive -- and signed Sarbanes-Oxley
certifications, which the Court determined were not alleged to have
contained "any issues glaring enough" to alert the CEO that
challenged statements were misleading. Id. The Court concluded that
these allegations, taken together, were insufficient to establish
scienter based either on actual knowledge or severe recklessness.
Id. at *7.

The Court rejected for similar reasons plaintiffs' scienter
allegations regarding other defendants that were based on their
alleged understanding of the geographical area, attendance on a
site visit, compensation structure, and position in "senior
management." Id. The Court also rejected plaintiffs' allegations
that certain executives engaged in suspicious stock sales; to the
contrary, the Court determined that their trades "were not
suspicious" either in size or amount, as they ranged from 8% to 25%
of the individuals' portfolios. Id. Moreover, the Court observed
that the allegation that only certain defendants engaged in
suspicious stock sales undermined an inference of scienter, as it
"seems implausible that some Defendants and not others would
profit" when all defendants were "allegedly acting in concert to
artificially inflate share prices." Id. Finally, the Court rejected
plaintiffs' allegation that scienter should be imputed based on the
alleged knowledge of one employee who was not an executive and was
not alleged to have had made any challenged statement. Id. at *9.

While emphasizing that plaintiffs' claims failed for failure to
establish scienter, the Court nevertheless addressed defendants'
remaining arguments "to provide guidance if Plaintiffs choose to
amend." Id. The Court determined that various statements were
forward-looking statements accompanied by meaningful cautionary
language and were therefore protected by the safe-harbor provision
in the Private Securities Litigation Reform Act ("PSLRA"). Id. at
*10-11. The Court explained that the company's risk disclosures
were not mere boilerplate but described the risks that actually
materialized, and plaintiffs had not sufficiently alleged that
those risks had already materialized at the time the challenged
statements were made. Id. at *11. However, while the Court
determined that statements that the company was "on track" to meet
production targets were forward-looking, the Court concluded that
certain statements were actionable to the extent they also
mentioned immediately measurable details, such as that "extensive
well inventory supports [the] production profile" and that the
company was exceeding its pace from the prior year by "about 20,000
barrels a day." Id. at *12-13.

Finally, the Court evaluated arguments regarding materiality and
falsity. The Court declined to dismiss allegations that the
company's estimates of "Proved Reserves" were inaccurate,
concluding that plaintiffs had sufficiently alleged falsity based
on testimony from several employees and that alleged errors in
accounting were sufficient to show materiality at the pleading
stage. Id. at *13-14. In addition, the Court determined that
various optimistic statements regarding the company's drilling
progress and "unique position" relative to competitors were
non-actionable puffery where they lacked connections to specific
facts. Id. at *15-16. However, the Court held that statements
regarding the company's process for estimating "Proved Reserves"
were actionable because "Proved Reserves" was a "term of art" in
the industry with a specific meaning for accounting purposes and
therefore "could affect a reasonable investor's decision-making."
Id. at *16. Last, the Court rejected plaintiffs' argument that an
investor presentation purporting to show the company's position
relative to certain competitors was misleading because other
companies allegedly outperformed the company in certain metrics.
The Court explained that the presentation did not claim that the
company was the number one performer in any category, and that to
find an omission claim actionable in this context would "render it
virtually impossible for corporations to present data to investors
without inundating every slide and document with likely irrelevant
and unhelpful information." Id. at *17. [GN]

FRUIT FUSION: State Auto Given Default Judgment Over Patt's Claims
------------------------------------------------------------------
Chief District Judge Nancy J. Rosenstengel of the U.S. District
Court for the Southern District of Illinois grants the Plaintiffs'
Motion for Default Declaratory Judgment in the lawsuit captioned
STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY and STATE
AUTOMOBILE MUTUAL INSURANCE COMPANY, Plaintiffs v. FRUIT FUSION,
INC., and TAYLOR PATT, individually and on behalf of all others
similarly situated, Defendants, Case No. 3:21-CV-1132-NJR (S.D.
Ill.).

Plaintiffs State Auto Property & Casualty Insurance Co. and State
Automobile Mutual Insurance Co. ("State Auto") seeks an order
declaring that it owes no duty to defend Fruit Fusion, for the
claims made by Taylor Patt in a case pending in the Circuit Court
of St. Clair County, Illinois.

Fruit Fusion is an Illinois corporation that operates ice cream and
frozen yogurt shops. State Auto issued Commercial General Liability
Insurance policies to Fruit Fusion for its Belleville and Fairview
Heights, Illinois, locations on April 16, 2016. The policies have
been renewed annually.

On June 21, 2021, a class action lawsuit was filed against Fruit
Fusion by Claimant Taylor Patt in the Circuit Court of St. Clair
County, Illinois, Case No. 21 L 570 ("the Underlying Action"). Patt
alleges that Fruit Fusion (1) caused the biometric data from
employees' fingerprints to be recorded, collected, and stored; (2)
did not inform employees of the specific purpose and length of term
their biometric data would be collected, stored and/or used; (3)
did not obtain written consent to "record, collect, obtain, and/or
store Plaintiff and class members' biometric data;" (4) did not
disclose its retention and destruction guidelines or for what
purpose and length it would be using the biometric data; and (5)
did not disclose to Plaintiff the identities of any third parties
with whom Defendant was directly or indirectly sharing, disclosing,
or otherwise disseminating class members' biometric information.

Ms. Patt alleges that every instance of Fruit Fusion "collecting,
capturing, storing, and/or sharing" Claimant's biometrics is a
violation of the Biometric Information Privacy Act ("BIPA") and
asks the Court to require Fruit Fusion to disclose to whom it has
disseminated, sold, or transferred the Plaintiff and class members'
biometric data.

Fruit Fusion tendered its defense to State Auto, and State Auto
accepted that tender subject to a reservation rights. On Sept. 14,
2021, State Auto filed a Complaint for Declaratory Judgment in this
Court seeking a declaration that it has no duty to defend Fruit
Fusion under either policy issued to the company. It joined Patt as
a defendant so that she may be bound by the judgment entered in
this case.

Both Fruit Fusion and Patt failed to answer the Complaint, and the
Clerk of Court entered default pursuant to Federal Rule of Civil
Procedure 55(a) as to both Defendants. State Auto then filed the
instant Motion for Default Declaratory Judgment.

The Court has subject matter jurisdiction pursuant to 28 U.S.C.
Section 1332(a). State Auto Property and Casualty Insurance Company
is an Iowa insurance corporation with its principal place of
business in Columbus, Ohio. State Automobile Mutual Insurance
Company is an Ohio insurance corporation with its principal place
of business in Columbus, Ohio. Fruit Fusion is an Illinois
corporation with its principal place of business in Illinois, and
Patt is a citizen of Illinois. Thus, the parties are completely
diverse.

In addition, the amount in controversy exceeds $75,000, exclusive
of interest and costs. Here, State Auto asserts the amount in
controversy exceeds $75,000, exclusive of interest and costs, which
is supported by the claims made in the Underlying Action. There,
Patt seeks statutory damages of $5,000 for each willful and/or
reckless violation of BIPA, statutory damages of $1,000 for each
negligent violation of the Act, punitive damages, attorneys' fees
and costs, and pre- and post-judgment interest. Given Patt's prayer
for relief and the fact that the Underlying Action was filed as a
class action, the Court finds State Auto could be subject to
liability well in excess of the jurisdictional minimum.

State Auto argues there are no allegations of "bodily injury,"
"property damage," or "personal and advertising injury" in the
Underlying Action as those terms are defined by State Auto's
policies. Thus, there is no applicable coverage.

The Court agrees that Patt does not allege any bodily injury or
property damage as those terms are defined in the State Auto
policies. With regard to personal and advertising injury, State
Auto owes a duty to defend Fruit Fusion if Patt has made
allegations of an "oral or written publication, in any manner, of
material that violates a person's right of privacy." The policies
do not define "publication."

Here, Patt alleges that employees were required to scan their
fingerprints to clock in and out, Fruit Fusion recorded and stored
employees' fingerprints, and Fruit Fusion did not disclose to the
Plaintiff the identities of any third parties with whom the
Defendant was directly or indirectly sharing, disclosing, or
otherwise disseminating class members' biometric information. She
also alleges that every instance of Fruit Fusion "collecting,
capturing, storing, and/or sharing" was a violation of BIPA.

State Auto argues that, unlike West Bend Mutual Insurance Company
v. Krishna Schaumburg Tan, Inc., Patt's complaint contains no
factual allegations that Fruit Fusion actually disclosed,
communicated, provided, or shared her fingerprint data with any
third party. She only alleges that, if Fruit Fusion did do this, it
did not inform her of the identities of the third parties. Without
any factual allegations that Fruit Fusion shared Patt's biometric
identifiers or information with a third party, State Auto argues,
the complaint does not allege "publication" and does not trigger
coverage under the "personal and advertising injury" provisions of
State Auto's policies.

While the Court agrees that Patt's allegations are not artfully
drafted, it must construe the complaint liberally in favor of the
insured. Patt essentially alleges that Fruit Fusion disclosed her
biometric information to a third party or parties, did not inform
her of the identity of those entities, and that by sharing her
information, Fruit Fusion violated BIPA. Thus, the Court cannot say
that it is clear from the face of the underlying complaint that the
case does not potentially fall within the policy's coverage.

State Auto next acknowledges that its policies issued for Fruit
Fusion's Fairview Heights location, with the exception of policy
No. 10069631CB (April 16, 2021 - April 16, 2022), contain an
endorsement titled "DATA COMPROMISE PLUS," which provides limited
coverage for a "personal data compromise." A "personal data
compromise" is defined as the loss, theft, accidental release or
accidental publication of personally identifying information or
personally sensitive information as respects one or more affected
individuals. This coverage is subject to certain conditions,
including that the Insured provide notifications and services to
affected individuals in consultation with State Auto pursuant to
Response Expenses coverage.

Ms. Patt, however, does not allege a "personal data compromise" as
that term is defined in the policy. She does not claim that Fruit
Fusion lost, stole, or accidentally released or published her
personal identifying information. Thus, the Court agrees that the
"DATA COMPROMISE PLUS" endorsement does not apply.

State Auto alternatively argues that, even if the complaint
contains sufficient allegations to support that Fruit Fusion
"published" biometric information, the policies contain exclusions
that bar coverage.

State Auto first argues that its policies expressly exclude
"personal and advertising injury" to a person that arises out of
employment-related practices. Because the plain and unambiguous
policy provisions clearly exclude employment-related practices,
which necessarily include Patt's alleged violations of BIPA, the
exclusion applies to bar coverage, Judge Rosenstengel holds.

State Auto next argues its "Recording and Distribution of Material
or Information in Violation of Law Exclusion" bars coverage. State
Auto argues that if the Court finds that Patt has alleged Fruit
Fusion published her protected information by disseminating it (and
thus has alleged a personal and advertising injury), then this
exclusion clearly applies to bar coverage. Finally, State Auto
argues, among other things, that the inclusion of the Fair Credit
Reporting Act (FCRA) within the exclusion shows that BIPA is
similarly excluded, as the FCRA and BIPA both are concerned with
the collection and transmittal of private information.

In Thermoflex Waukegan, LLC, No. 20-CV-05980, 2022 WL 602534, at *6
(N.D. Ill. Mar. 1, 2022), the court examined the same exact
exclusionary language contained in State Auto's policy, as well as
the same arguments made by State Auto here. The court agreed that
the differences between the language in Krishna and the policy at
hand broadened the scope of the exclusion. Other courts have come
to the same conclusion and found that the exclusion does not apply
to BIPA claims.

But not all, Judge Rosenstengel notes. In Cheese Merchants, No.
21-CV-1571, 2022 WL 4483886, at *16 (N.D. Ill. Sept. 27, 2022), the
court reviewed the same exclusionary language at issue here. After
a thorough analysis and applying the canons of construction, the
Cheese Merchants court found that the inclusion of the FCRA in the
exclusion made that case "meaningfully different" from Krishna. The
court ultimately predicted that "the Illinois Supreme Court would
recognize the material expansion of the text, and conclude that the
exclusion applies" to BIPA claims.

The Court agrees. Patt has arguably alleged that Fruit Fusion
"published" her personal information when it disclosed her
biometric information to a third party or parties and that it
violated BIPA by not informing her of the identities of these
parties. And BIPA is a state statute that "addresses, prohibits or
limits" the collection, retention, dissemination, and disposal of
information. Accordingly, the Court agrees that Patt's claim falls
within State Auto's exclusion.

For these reasons, the Motion for Default Declaratory Judgment is
granted. State Auto owes no duty to defend its Insured, Fruit
Fusion, in the Underlying Action.

A full-text copy of the Court's Memorandum and Order dated Sept.
29, 2022, is available at https://tinyurl.com/2p843v28 from
Leagle.com.


GEORGETOWN MEMORIAL: Appeals Arbitration Bid Denial in Marshall
---------------------------------------------------------------
GEORGETOWN MEMORIAL HOSPITAL is taking an appeal from a court order
denying its motion to compel arbitration in the lawsuit entitled
Loretta Sabrina Marshall, individually and on behalf of others
similarly situated, Plaintiff, v. Georgetown Memorial Hospital,
d/b/a Tidelands Health, Defendant, Case No. 2:21-cv-02733-RMG-JDA,
in the U.S. District Court for the District of South Carolina.

The Plaintiff filed this class action on August 24, 2021, alleging
that the Defendant discriminated against her in violation of the
Americans with Disabilities Act (the "ADA"), Title VII of the Civil
Rights Act of 1964 ("Title VII"), the Rehabilitation Act of 1973,
Sec. 510 of the Employee Retirement Income Security Act of 1974
("ERISA"), and wrongfully discharged her in violation of public
policy.

On September 16, 2021, the Defendant filed a motion to stay
litigation and compel arbitration or, alternatively, to dismiss the
action.

On December 29, 2021, the Magistrate Judge issued a Report &
Recommendation (R&R) recommending that the Defendant's motion be
denied.

The Court declined to adopt the December 29, 2021 R&R and
re-referred the matter to the Magistrate Judge for full briefing on
the issues raised in the Defendant's objections.

On July 7, 2022, the Magistrate Judge, after considering
supplemental briefing from the parties, issued an R&R recommending
that the Defendant's motion be denied.

The Defendant filed objections to the R&R, to which Plaintiff filed
a reply.

After a careful review of the record, the R&R, and the Defendant's
objections, Judge Richard Mark Gergel, on September 6, 2022, found
that the Magistrate Judge ably addressed the issues and correctly
concluded that the Defendant has not met its burden of showing the
existence of a binding contract to arbitrate the disputes in this
case. The Court adopted the R&R and denied the Defendant's motion
to stay litigation and compel arbitration or alternatively, to
dismiss.

The appellate case is captioned as Loretta Marshall v. Georgetown
Memorial Hospital, Case No. 22-2010, in the U.S. Court of Appeals
for the Fourth Circuit, filed on September 23, 2022. [BN]

Plaintiff-Appellee LORETTA SABRINA MARSHALL, individually and on
behalf of all others similarly situated, is represented by:

            David Alan Nauheim, Esq.
            NAUHEIM LAW OFFICE, LLC
            P.O. Box 31458
            Charleston, SC 29417
            Telephone: (843) 534-5084

Defendant-Appellant GEORGETOWN MEMORIAL HOSPITAL, d/b/a Tidelands
Health, is represented by:

            Thomas Alan Bright, Esq.
            OGLETREE DEAKINS NASH SMOAK & STEWART, PC
            P.O. Box 2757
            Greenville, SC 29602
            Telephone: (864) 240-8352

HALLEN CONSTRUCTION: Rosario Appeals Civil Action Suit in N.Y.
--------------------------------------------------------------
DANIEL ROSARIO, et al. are taking an appeal from a court order in
their lawsuit entitled Daniel Rosario, et al., individually and on
behalf of others similarly situated, Plaintiffs, v. The Hallen
Construction Co., Inc., Defendant, Case No. 157141/2021, in the
Appellate Division of New York, First Judicial Department.

The case type is stated as Civil Action - General.

The appellate case is captioned as Daniel Rosario, et al. vs. The
Hallen Construction Co., Inc., Case No. 22-04172, in the New York
Appellate Division, filed on September 21, 2022. [BN]

Plaintiffs-Petitioners DANIEL ROSARIO, et al., individually and on
behalf of all others similarly situated, are represented by:

          Jenny Sheva Brejt, Esq.
          VIRGINIA & AMBINDER, LLP
          40 Broad Street, 7th Floor
          New York, NY 10004
          Telephone: (212) 943-9080
          Facsimile: (212) 943-9082

HALSTED FINANCIAL: Court Grants Bids to Dismiss Benhayun Class Suit
-------------------------------------------------------------------
In the case, SAMI BENHAYUN, Plaintiff v. HALSTED FINANCIAL
SERVICES, LLC, et al., Defendants, Case No. 21-CV-4421 (WFK) (SIL)
(E.D.N.Y.), Judge Wiliam F. Kuntz, II, of the U.S. District Court
for the Eastern District of New York grants the Defendants' motions
to dismiss.

The Plaintiff brings the action under the Fair Debt Collections
Practices Act ("FDCPA"), 15 U.S.C. Section 1692e, et seq., alleging
a violation caused by a calculation error in a debt collection
letter.

At some point prior to Aug. 6, 2020, Benhayun allegedly incurred a
debt to Citibank NA, arising out of credit card transactions. The
debt was transferred to LVNV Funding, LLC, which, in turn, hired
Halsted Financial Services, LLC to collect the debt.

According to the Plaintiff, on Aug. 6, 2020, Halsted and LVNV
(collectively, "Defendants") sent a collection letter to Plaintiff
regarding the Debt. The letter, the Plaintiff alleges, contained a
calculation error, which allegedly "confused Plaintiff as to the
actual amount owed." The calculation error allegedly forced the
Plaintiff to "expend time and money in determining the proper
course of action in response," "affected and frustrated Plaintiff's
ability to intelligently respond" to Defendants, "created an
appreciable risk to the Plaintiff of being unable to properly
respond" to the Defendants, and diverted "funds the Plaintiff could
have used to pay" the Debt.

On Aug. 5, 2021, the Plaintiff filed a Complaint, styled as a class
action complaint, alleging Halsted and LVNV violated the FDCPA by
making false and misleading representations in their collection
efforts; falsely representing the character, amount, or legal
status of the Debt; and unfairly stating conflicting amounts for
the Debt and its component parts.

Before the Court are the Defendants' motions to dismiss.

To demonstrate standing, a plaintiff must show: "(1) an injury in
fact, which must be (a) concrete and particularized, and (b) actual
or imminent; (2) a causal connection between the injury and the
defendant's conduct; and (3) that the injury is likely to be
redressed by a favorable decision." A plaintiff who fails to
demonstrate injury-in-fact lacks standing, and federal courts lack
jurisdiction to consider their claims.

Judge Kuntz concludes that the Plaintiff has failed to demonstrate
an injury that bears a close relationship to the harm traditionally
recognized as providing a basis for standing. He says the
Plaintiff's conclusory allegations are of the same cloth as those
uniformly rejected by courts in this district. Because such
"threadbare" allegations fail to establish concrete injury, the
Plaintiff lacks Article III standing.

Therefore, Judge Kuntz dismisses the action for lack of subject
matter jurisdiction. The Clerk of Court is respectfully directed to
close the case.

A full-text copy of the Court's Sept. 30, 2022 Order is available
at https://tinyurl.com/fjene8jr from Leagle.com.


JACKSON, MI: Court Affirms Summary Disposition in Hofmeister Suit
-----------------------------------------------------------------
The Court of Appeals of Michigan affirms the trial court's order
granting summary disposition in the lawsuit styled PHILLIP
HOFMEISTER, Plaintiff-Appellant v. CITY OF JACKSON,
Defendant-Appellee, Case No. 358159 (Mich. App.).

The Plaintiff appeals as of right the trial court's order granting
summary disposition in favor of the Defendant under MCR
2.116(C)(8).

The case stems from the Defendant's collection of nonresident city
taxes. The Defendant assessed a city income tax under its Uniform
City Income Tax Ordinance, which adopted Michigan's City Income Tax
Act (CITA), MCL 141.501 et seq., by reference. It levied a 0.5%
city income tax on nonresidents.

In 2020, the Plaintiff started the year working at his regular,
assigned location at the Consumers Energy (Consumers) headquarters
in Jackson. After the COVID-19 pandemic caused employers to alter
their employees' physical worksites, Consumers authorized the
Plaintiff and other nonresident city employees to begin working
from home or telecommute in March 2020. Nonetheless, it continued
to withhold Jackson city taxes from him consistent with an
in-office work assignment.

The Plaintiff filed a three-count class action complaint on behalf
of himself and as a representative of similarly situated persons.
Because the Defendant filed a motion for summary disposition in
lieu of an answer to the class action complaint and the dispositive
motion was taken under advisement, the parties stipulated to delay
the request to certify the class.

The Plaintiff alleged that the Defendant demanded Consumers
continue withholding the city taxes for nonresident employees, who
were working from home, contrary to the Michigan Department of
Treasury's confirmation that nonresident telecommuters were not
subject to city taxation.

The Plaintiff's specific claims included (1) that the collection of
the nonresident tax from those working at home constituted an
unlawful exaction without due process, (2) that the collection of
taxes was an illegal taking of property without just compensation,
and (3) that the Defendant was unjustly enriched or an assumpsit.
The Plaintiff asserted that communications were exchanged between
Consumers and the Defendant about the inappropriateness of
continuing to demand the collection of city income taxes from
nonresident workers when they were reassigned to work outside the
Defendant city's territorial limits. It was submitted that the
Defendant continued to require, demand, and did in fact collect
city income taxes from non-residents, who were not working within
the territorial limits of the City of Jackson due to COVID-19.

In lieu of answering the complaint, the Defendant moved for summary
disposition under MCR 2.116(C)(4), lack of subject-matter
jurisdiction, and MCR 2.116(C)(8), failure to state a claim on
which relief can be granted. It asserted that, by statute,
employers were required to withhold applicable city income taxes,
and therefore, it could not have illegally exacted funds from the
Plaintiff or committed a taking. If the Plaintiff wanted to change
his withholding, he could have filed an amended withholding
certificate with Consumers. The Plaintiff did not specify whether
he had filed a 2019 or 2020 city income tax return and did not
allege the provisions of the CITA that were violated. It was
further alleged that the Plaintiff's remedy was to pursue relief
with the Income Tax Board of Review or the Michigan Tax Tribunal.

In response, the Plaintiff alleged that, in reality, it was not
possible for employees to amend their tax withholdings. He also
submitted that the city treasurer threatened Consumers with
penalties if it failed to "continue to withhold." Further, he
contended that if he filed a tax return and was entitled to a
refund, he would have lost, while the Defendant gained, the
interest from the refund amount.

After taking the matter under advisement following oral argument,
the trial court granted summary disposition in favor of the
Defendant under MCR 2.116(C)(8), failure to state a claim.

The Plaintiff moved for reconsideration or leave to amend his
complaint, alleging that the trial court erred by applying
standards for MCR 2.116(C)(10) rather than (C)(8) when it required
the Plaintiff to produce evidentiary support for his allegations
instead of accepting them as true. The trial court denied
reconsideration, concluding that the Plaintiff failed to show
palpable error by which the trial court or parties were misled.

The Plaintiff filed a renewed motion for leave to file a second
amended complaint. The trial court denied the motion.

Following these decisions, the Plaintiff appeals.

The Plaintiff contends that the trial court erred when it sua
sponte concluded that he failed to state a claim on which relief
could be granted because he was not subject to CITA when his work
location was transferred outside the city limits and because the
city illegally disallowed employers from changing exemption rates.
The Appellate Court disagrees.

Under the plain language of MCL 141.651, Consumers, as the
Plaintiff's employer, was required to withhold city taxes from the
Plaintiff's compensation in accordance with any requested
exemptions. The Legislature's use of the term "shall" denoted
mandatory action on the part of Consumers to withhold city taxes
from the compensation earned by their employee, the Plaintiff, even
as a nonresident, MCL 141.651(1)(b).8 Manuel, 481 Mich at 647. The
requirement on the employer was subject to any exemptions. MCL
141.651(1).

To calculate exemptions, the "estimated percentage of work" must be
examined. 141.651(1)(b). The manner in which an employee is to
designate his estimated withholding is described in Section 54 of
the CITA.

The Plaintiff's counsel faulted the trial court for locating the
JW-4 form that addressed allocation of work done, stating that it
was outside the scope of the record. But a court may take judicial
notice of a public record, Johnson v Dep't of Natural Resources,
310 Mich.App. 635, 648-649; 873 N.W.2d 842 (2015), at any stage of
the proceedings, whether requested or not, MRE 201(c), (d). The
directions and percentages on the JW-4 form were, in fact, in
accordance with and dictated by Section 54 of the CITA. Therefore,
the judge properly considered this information when ruling on the
motion for summary disposition, the Appellate Court holds.

Next, Section 54 of the CITA requires the employer to follow the
employee's withholding directions "unless directed by the city to
withhold on another basis." Again, the Plaintiff's complaint does
not allege that Section 54 is unconstitutional, only that the
Defendant acted unlawfully when it allegedly demanded that
Consumers continue to withhold city taxes at a full-year rate. This
statute authorized Consumers to withhold city taxes subject to the
submission of the appropriate exemptions and documentation; a
mandatory act placed on the Plaintiff as the employee in light of
the use of the term "shall." Because the Plaintiff did not file the
requisite form and revise his exemptions, the Defendant did not
direct the withholding of city income taxes occur on an alternate
ground.

Section 54 of the CITA also contemplates that employees and
employers may not know exactly how much work a nonresident will
complete in the city in a coming year. Because the estimated
percentage of time an employee expects to work in the city may
change, Section 55 of the CITA addresses the process when an
employee wishes to revise his withholding estimate for the coming
year.

The Defendant indicated that although the CITA appears to allow for
these changes once a year, the withholding process is strictly "by
and between the employer and the employee" and not an action
controlled by a city. The full impact of COVID-19 on workers or
workplaces when the virus was detected in Michigan in March 2020
was unknown; the need for or availability of telecommuting for the
remainder of the year and beyond was unpredictable. By statute,
however, the Plaintiff was given a remedy for overpayment of city
income tax by filing a revised withholding certificate with
Consumers, MCL 141.655(1), but there is no allegation that he did
so.

Finally, Section 58 of the CITA addresses what happens when too
much tax is withheld.

Like MCL 141.651(1)(b), this provision accounts for the fact that
determining precise tax amounts for a coming year is not usually
possible. Instead, taxes are withheld on the basis of estimates but
the final amount owed to the city can change in reality because of
various factors, namely, the percentage of work actually performed
by nonresidents within the city limits. In this instance, an
employer does not provide an offset for the excess withholding, but
rather, the employee's reconciliation occurs when he claims his
refund from the city on the annual return.

The Plaintiff's next option, therefore, was to file a tax return
for the year 2020. He did not claim to do that. Instead, he argued
that the wording on the 2020 tax form J-1040, working at home
counts as a day in the city, meant that the Defendant would not
honor a refund anyway. But the Plaintiff has no standing to bring a
claim arising from the possibility of nonpayment without actually
being denied a withholding change and accompanying refund from the
Defendant city. Accordingly, the Appellate Court finds that the
Plaintiff cannot show an injury in fact.

The Plaintiff also submits that even if he did file for a refund,
the Defendant's retention of the tax payments during the year
deprived him of the interest it could have generated in his own
possession. The CITA, however, does not provide for interest on tax
refunds unless the refund is made "beginning 45 days after the
claim is filed or 45 days after the date established under this
ordinance for the filing of the return, whichever is later."
Therefore, unless the Plaintiff made a valid claim for a tax refund
and the Defendant held that refund for longer than the CITA allows,
no interest payment would be required by law, according to the
Appellate Court.

The Appellate Court holds that the Plaintiff's contention that the
CITA does not apply to him because he transferred outside the city
limits is contrary to the statute's plain language that requires
employers to withhold city taxes, employees to provide exemptions
and estimates of where the work will be performed, and submission
of the appropriate documentation to reflect the work relationship.

In summary, the factual allegations raised in his first amended
complaint, even when construed as true, do not render the
Defendant's actions unlawful, the Appellate Court finds. Further,
because the CITA allows the city to require withholding "on another
basis," no factual development of these claims could justify a
recovery.

As a result, the Appellate Court holds the Plaintiff's factual
claims are not legally sufficient to state a claim on which relief
can be granted. The Plaintiff's own conclusions to the contrary are
both incorrect and insufficient to state a cause of action.
Regardless of whether the Defendant made oral or written
representations to the contrary, it also adopted the CITA that
created a mandatory process for collection of city taxes by
employers, a methodology for estimating and revising exemptions
that lowered the tax premised on residency and work location, and
the entitlement to a refund. There was no allegation that the
Plaintiff availed himself of the procedure established by the
Legislature.

Therefore, the trial court properly granted summary disposition
under MCR 2.116(C)(8) in favor of the Defendant.

Affirmed. As the prevailing party, the Defendant is entitled to
costs. MCR 7.219(A).

A full-text copy of the Court's Opinion dated Sept. 29, 2022, is
available at https://tinyurl.com/f8rzxvy9 from Leagle.com.


JOLO INC: Court Certifies Class in Saad Suit and Appoints Counsel
-----------------------------------------------------------------
Judge Timothy S. Hillman of the U.S. District Court for the
District of Massachusetts grants the Plaintiffs' Motion for Class
Certification in the case, LEAH SAAD, DEANNA GALLO, BRITANNY
DUCHAINE, and SANCHERE KELLY, on behalf of themselves and all
others similarly situated, Consolidated Plaintiffs v. JOLO, INC.
d/b/a HURRICANE BETTY'S, MYLES O'GRADY and JOSEPH O'GRADY,
Defendants, Civ. Action Nos. 20-11377-TSH, 21-40048-TSH (D. Mass.).


The matter comes before the Court on the Plaintiffs' Motion for
Class Certification Under Fed.R.Civ.P. 23 and for Appointment of
Class Counsel Under Fed. R. Civ. P. 23(g).

The Consolidated Plaintiffs, Leah Saad, Deanna Gallo, Brittany
Duchaine and Sanchere Kelly, have filed a Second Amended Complaint
against JOLO, Myles O'Grady and Joseph O'Grady, in their individual
capacities, alleging claims for: violation of the Massachusetts
Wage Act ("MWA"), Mass.Gen.L. ch. 149, Sections 148, 150 for
failure to pay them and other similarly situated individuals
minimum wage and overtime (Count I); violation of Mass.Gen. L. ch.
151, Sections 1 & 7 (minimum wage law), for failure to pay them and
other similarly situated individuals minimum wage and overtime
(Count II); violation of Mass.Gen.L. ch. 149, Section 152A (the
Massachusetts Tips Act), for failure to allow them and other
similarly situated individuals to retain their tips (Count III);
violation of Mass.Gen. L. ch. 149, Section 148B for improperly
classifying them and other similarly situated individuals as
independent contractors rather than employees (Count IV); unjust
enrichment and quantum meruit as the result of Defendants having
improperly received and required them and other similarly situated
individuals to pay house fees and tip out non-service employees in
violation of the Massachusetts Tips Act (Counts V and VI);
violation of the Fair Labor Standards Act, 29 U.S.C. s. 201 et seq.
("FLSA") for failure to pay them and other similarly situated
individuals minimum wage and overtime (Count VII); and violation of
26 U.S.C. Section 7434 for unlawful filing of IRS W-2 Tax
Information Returns.

The Plaintiffs, who performed services as exotic dancers for the
Defendants, have filed a motion seeking to certify the proposed
class pursuant to Fed.R.Civ. P. 23(a) and (b)(3); to appoint the
named Plaintiffs as the Class Representative pursuant to
Fed.R.Civ.P. 23; and to appoint their counsel as the Class Counsel.
More specifically, they seek class certification for their state
statutory wage claims under Mass. Gen. L. ch. 149, Sections 148 &
150 (Count I), Mass. Gen. L. ch. 151 Sections 1& 7 (Count II), and
Mass.Gen.L. ch. 149, Section 152A (Count III).

Judge Hillman states that a proposed class under Rule 23(a) must
meet the following four requirements: "(1) the class is so numerous
that joinder of all members is impracticable (numerosity); (2)
there are questions of law or fact common to the class
(commonality); (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class
(typicality); and (4) the representative parties will fairly and
adequately protect the interests of the class (adequacy). The
plaintiffs have the burden of showing that all the prerequisites
for a class action have been met."

The Defendants do not dispute that the Plaintiffs' have
substantially satisfied the prerequisites for class certification.
Their only grounds for opposing the Plaintiffs' motion are that:
(1) they do not believe that the amount of damages is readily
calculable for each alleged proposed class member; and (2) "within
the category of proposed class participants, the definition of the
proposed class is not finite."

Judge Hillman finds no merit to the Defendants' opposition on these
grounds as the amount of damages due individual class members is
readily calculable, and the proposed class is limited to
individuals who worked as exotic dancers for JOLO during the
defined period of July 22, 2017 to the present.

The Defendants also object to the proposed class certification on
the grounds that the Plaintiffs misstated the 3-year look back
period as beginning on May 1, 2019 (thus covering individuals
employed the Club as exotic dancers from May 1, 2016 to present).
The Plaintiffs acknowledge that the Defendants are correct and that
the 3-year look back period should commence on July 22, 2020, and
therefore, the certified class would include individuals employed
as exotic dancers by the Club during the period from July 22, 2017
through the present.

The Defendants having raised no other objections, with the
aforementioned modification, Judge Hillman grants the Plaintiffs
motion for class certification.

On Oct. 31, 2022, the Plaintiff will provide the Court with a
proposed class certification Order defining the class, the class
claims, issues, or defenses, and appointing class counsel under
Fed.R.Civ.P. 23(g). They will also file a proposed form of notice
in accordance with Fed.R.Civ.P. 23(c)(2)(B). If the Defendants
object to the proposed Order and/or form of notice, they will file
their own proposed Order/form of notice by Nov. 14, 2022.

The Plaintiffs' Motion For Class Certification Under Fed.R.Civ.P.
23 And For Appointment of Class Counsel Under Fed. R. Civ. P. 23(g)
is granted, as provided in the Order.

A full-text copy of the Court's Sept. 30, 2022 Order is available
at https://tinyurl.com/mr3bbueu from Leagle.com.


JUUL LABS: Bay District Schools to Join Vaping Class Action Suit
----------------------------------------------------------------
WMBB reports that Bay District Schools is joining more than 1300
other school districts in a class action lawsuit against Juul Labs
Inc.

They're accusing the e-cigarette manufacturer of creating a teenage
nicotine epidemic by designing, marketing and selling its products
to minors.

"This is your chance to sue the bad guys," Lawyer Joel Wright
said.

A number of school districts have been frustrated with vaping in
their schools for the last few years now, Bay District Schools
agreed to join the lawsuit against Juul during the Oct. 11 board
meeting.

Joel Wright, a lawyer involved in the litigation, spoke with board
members during the meeting.

"Our group of law firms connected with some of these larger school
districts and said this reminds us of the opioid epidemic they know
what they are doing they know they are causing tremendous harm and
they don't care cause they are making a lot of money from it, so
several school districts signed up, Los Angeles, San Francisco,
Seattle, Palm Beach Florida, and we filed this lawsuit," Wright
said.

Local doctor questions proposed Walton County sales tax
Not only is vaping a distraction in schools but, more importantly,
young kids are becoming addicted at a very young age.

"Juul took nicotine, took vaping and they invented basically what
they call the iPhone of vaping," Wright said. "They made it very
simple, they made it convenient and added a number of extraordinary
flavors, they were extremely popular with kids."

In 2018, Philip Morris bought a third of Juul for $13 billion.

Wright said the team of lawyers also filed a RICO claim, meaning
that everyone that has made a profit from Juul will be held
liable.

"It is an enormous problem in the schools," BDS Attorney Franklin
Harrison said. "It is something the administrators and teachers
have to deal with on a constant basis all over the nation. They can
go in the bathrooms, in the cars, in the hallways, anywhere and use
it and we have to control all of that and try to discipline them
and it is just besides that is an awful thing for our kids to get
involved in."

The trial is set to begin on November 4. [GN]

JUUL LABS: Leon County Schools to Join Vaping Class Action
----------------------------------------------------------
Ana Goñi-Lessan, writing for Tallahassee Democrat, reports that
Leon County Schools will join more than a thousand other school
districts in the fight against one of the most popular e-cigarette
makers.

The school board on Oct. 11 voted to join a class action lawsuit
with approximately 1,400 other school districts against Juul,
alleging the e-cigarette manufacturer used unfair marketing
practices to make youth addicted to vaping products.

"This is important for us to make a stand to our community that we
are against this, and that we don't appreciate these companies
seducing our children with banana-flavored nicotine," said school
board member Rosanne Wood. "If this lawsuit prevails, and we get an
award, we'll be able to educate our students."

Leon County Schools will join more than a thousand other school
districts in the fight against one of the most popular e-cigarette
makers.

The school board on Oct. 11 voted to join a class action lawsuit
with approximately 1,400 other school districts against Juul,
alleging the e-cigarette manufacturer used unfair marketing
practices to make youth addicted to vaping products.

"This is important for us to make a stand to our community that we
are against this, and that we don't appreciate these companies
seducing our children with banana-flavored nicotine," said school
board member Rosanne Wood. "If this lawsuit prevails, and we get an
award, we'll be able to educate our students." [GN]

KIA AMERICA: Hellmuth & Johnson Files Car Theft Class Action
------------------------------------------------------------
Hellmuth & Johnson disclosed that its clients have brought a class
action against Kia America, Inc. and Hyundai Motor America
following a nationwide rash of thefts that revealed a major defect
in certain Kia and Hyundai models.

According to the complaint, Kia and Hyundai did not install engine
immobilizers in many of their vehicles produced before November
2021. These vehicles are now sitting targets and continue to be
frequently stolen across the country.

Manufacturers have regularly installed engine immobilizers in
vehicles for decades as a common theft deterrent. Engine
immobilizers prevent the engine from starting without using the
vehicle's authorized key. The system is based on a unique key or
fob that contains a transponder chip that transmits a specific code
to start the engine. The engine control unit does not activate the
fuel system or the ignition circuit if the code in the key or fob
does not match.

Law enforcement acknowledges these thefts are part of a nationwide
trend, in part due to social media tutorials that show thieves how
to exploit the defect, allowing them to bypass the ignition by
breaking off the dash panels and simply using a USB port to start
the car. Despite knowing and being made aware of the threat these
vehicles pose, Kia and Hyundai have failed to provide any permanent
solutions to consumers. Their conduct violates consumer protection
laws and breaches the companies' warranty obligations.

For more information about the case, contact Hellmuth & Johnson
partner Anne T. Regan at (952) 460-9285.

The vehicle owners are represented by Anne T. Regan, Nathan D.
Prosser, and Lindsey L. Larson of Hellmuth & Johnson, Minneapolis,
Minnesota.

Hellmuth & Johnson

Hellmuth & Johnson, a Top 20 Minnesota law firm, represents clients
ranging from individuals and emerging start-ups to multinational
Fortune 500 companies. Focusing on transactional law, litigation
and appeals, Hellmuth & Johnson attorneys are leaders in their
fields. Founded in 1994, Hellmuth & Johnson has become one of
Minnesota's fastest growing law firms. Learn more at
www.hjlawfirm.com. [GN]

KOHL'S CORP: $450K Class Settlement in Mollett Suit Wins Approval
-----------------------------------------------------------------
In the case, MARIANNA MOLLETT, Plaintiff v. KOHL'S CORPORATION,
Defendant, Case No. 21-cv-707-pp (E.D. Wis.), Judge Pamela Pepper
of the U.S. District Court for the Eastern District of Wisconsin
grants the Plaintiff's unopposed motion for settlement approval.

On June 8, 2021, the named Plaintiff filed a complaint alleging
violations of the Fair Labor Standards Act (FLSA) and Texas common
law on behalf of call-center employees employed by the Defendant
since June 1, 2018. Since Aug. 20, 2021, the Plaintiff has filed
three notices of consents to join under 29 U.S.C. Section 216(b),
indicating that 33 additional individuals have consented to join
the collective action.

On Aug. 29, 2022, the parties filed a joint status report alerting
the court that they successfully reached settlement terms at a
mediation. On Sept. 12, 2022, the named Plaintiff, individually and
on behalf of all others similarly situated filed an unopposed
motion for settlement approval and dismissal with prejudice. The
unopposed motion seeks the court's approval of the parties'
proposed settlement agreement and dismissal of the case with
prejudice.

Under the proposed settlement agreement, the Defendant will
establish a gross settlement fund of $450,000. A $5,000 service fee
will be paid out from the settlement fund to the representative
Plaintiff and $160,000 will be paid from the fund to the collective
counsel. The gross settlement fund also will pay for the settlement
administrator's fees and expenses, including the costs of mailing
all notes and checks under the settlement agreement. The remaining
amount -- the "Net Settlement Fund" -- will be paid to "Settlement
Collective Members," which include the named Plaintiff, the opt-in
plaintiffs and the putative collective members who opt in to the
case by signing and timely returning a claim form.

The proposed settlement agreement describes the process for
distributing funds to the settlement collective members. Within 14
days of receiving the list of putative class members from the
defendant, the settlement administrator will mail each putative
class member the notice materials containing the settlement notice
and the claim form. During the "Notice Period," putative class
members will have 60 days after the settlement notice materials are
mailed to return their claim forms and become a settlement
collective member.

The settlement agreement outlines the method for calculating the
dollar amount to be paid to each settlement collective member. The
allocation formula provides: The Net Settlement Fund will be
divided into equal shares based on the total number of workweeks by
the Settlement Collective Members from the Collective Period, with
each workweek equal to one-share of the Net Settlement Fund (i.e.,
if the total work weeks worked by the Settlement Collective Members
for the Collective Period equaled 100 workweeks, each workweek
would represent 1/100 [i.e., 1-share] of the Net Settlement Fund).
If a Settlement Collective Member timely returns a Claim Form
during the Notice Period, they will receive a payment at the rate
calculated for one share from the Net Settlement Fund for each
share allocated to them based on the above formula. The Defendant's
records will determine the overall workweeks worked by the
Settlement Collective Members.

The Plaintiffs contend that under this formula, each settlement
collective member will receive no less than $25. In exchange, the
settlement collective members agree to dismiss their FLSA claims
against the Defendant.

Judge Pepper concludes that an agreement that will pay the
Plaintiff collective $450,000 is a reasonable compromise of the
disputed issues, assuming the costs of potential litigation.
Because the parties were at only the initial discovery phase when
they reached this agreement, it is reasonable to assume that much
more litigation lays ahead and that it would have been costly.

For these reasons, Judge Pepper grants the Plaintiffs' unopposed
motion for settlement approval. She approves the settlement
agreement, and approves awards of $160,000 in attorneys' fees and
$5,000 to the collective representative.

She certifies the following FLSA collective for settlement purposes
only: All current or former hourly call-center employees who worked
for the defendant in a position involved in customer
service/contact, anywhere in the United States, at any time from
Aug. 13, 2018 through July 13, 2022, who were identified in the
timekeeping and payroll data produced by the defendant for purposes
of facilitating the plaintiffs' and defendant's settlement
discussions and all hourly-call-center employees who have
previously filed a consent to join this lawsuit.

Judge Pepper approves the FLSA notice of collective action
settlement and the claim form. She dismisses with prejudice the
FLSA collective members' released FLSA claims. She dismisses the
case with prejudice.

The clerk will enter judgment accordingly.

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


LABORATORY CORPORATION: Appeals Class Definitions Ruling in Davis
-----------------------------------------------------------------
LABORATORY CORPORATION OF AMERICA HOLDINGS is taking an appeal from
a court order granting the Plaintiffs' motion to certify class in
the lawsuit entitled Luke Davis, et al., individually and on behalf
of others similarly situated, Plaintiffs, v. Laboratory Corporation
of America Holdings, Defendant, Case No. 2:20-cv-00893-FMO-KS, in
the U.S. District Court for the Central District of California.

The Plaintiffs assert claims for violations of: (1) the Americans
with Disabilities Act (ADA); (2) California's Unruh Civil Rights
Act; and (3) California's Disabled Persons Act (CDPA). The Unruh
Act and CDPA claims are brought by Julian Vargas on behalf of
himself and a putative California class, while the remaining
federal claims are brought by the Plaintiffs on behalf of the
Nationwide Injunctive Class.

The Plaintiffs allege that LabCorp discriminates against them and
other visually impaired individuals, "by refusing and failing to
provide auxiliary aids and services to the Plaintiffs, and by
requiring them to rely upon other means of communication that are
inadequate to provide equal opportunity to participate in and
benefit from the Defendant's health care services free from
discrimination."

On June 16, 2022, the Plaintiffs filed a motion for order for
refinement of class definitions, which the Defendant opposed on
June 30, 2022.

On August 4, 2022, the Court granted the Plaintiffs' motion to
refine class definitions through an Order entered by Judge Fernando
M. Olguin.

The appellate case is captioned as Luke Davis, et al. v. Laboratory
Corporation of America Holdings, Case No. 22-55873, in the U.S.
Court of Appeals for the Ninth Circuit, filed on September 23,
2022.

The briefing schedule in the Appellate Case states that:

   -- Appellant Laboratory Corporation of America Holdings
Mediation Questionnaire was due on September 30, 2022;

   -- Appellant Laboratory Corporation of America Holdings opening
brief is due on November 28, 2022;

   -- Appellees American Council of the Blind, Luke Davis and
Julian Vargas answering brief is due on December 28, 2022; and

   -- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]

Plaintiffs-Appellees LUKE DAVIS, et al., individually and on behalf
of all others similarly situated, are represented by:

            Alison Marie Bernal, Esq.
            Jonathan Miller, Esq.
            NYE, PEABODY, STIRLING, HALE & MILLER, LLP
            33 West Mission Street
            Santa Barbara, CA 93101
            Telephone: (805) 963-2345

                   - and -

            Matthew Keith Handley, Esq.
            HANDLEY FARAH & ANDERSON, PLLC
            200 Massachusetts Avenue, NW, 7th Floor
            Washington, DC 20001
            Telephone: (202) 559-2411

                   - and -

            Benjamin Sweet, Esq.
            NYE STIRLING HALE, MILLER & SWEET, LLP
            1145 Bower Hill Road, Suite 104
            Pittsburgh, PA 15243
            Telephone: (412) 857-5350

Defendant-Appellant LABORATORY CORPORATION OF AMERICA HOLDINGS,
doing business as Labcorp, is represented by:

            Robert Steiner, Esq.
            KELLEY DRYE & WARREN, LLP
            3 World Trade Center
            175 Greenwich Street
            New York, NY 10007
            Telephone: (212) 808-7965

                   - and -

            Becca Wahlquist, Esq.
            KELLEY DRYE & WARREN, LLP
            350 S. Grand Avenue, Suite 3800
            Los Angeles, CA 90071
            Telephone: (213) 547-4916

LIVE WELL: Shakespeare's Bid to Amend Complaint Granted in Part
---------------------------------------------------------------
In the case, MARGARET SHAKESPEARE, on behalf of herself and all
others similarly situated, Plaintiff v. LIVE WELL FINANCIAL, INC.,
COMPU-LINK CORP., doing business as CELINK, and REVERSE MORTGAGE
FUNDING, INC., Defendants, Case No. 18-CV-7299
(JMA)(AYS)(E.D.N.Y.), Magistrate Judge Anne Y. Shields of the U.S.
District Court for the Eastern District of New York grants in part
and denies in part the Plaintiff's motion to amend the complaint.

Ms. Shakespeare commenced this action on Dec. 21, 2018, against
Live Well, Celink, and Reverse Mortgage Funding ("RMF") as
Defendants. Live Well is presently in bankruptcy, in an unvoluntary
proceeding pending in the District of Delaware. The matter
continues against the remaining the Defendants.

Ms. Shakespeare owns property upon which she obtained a home equity
conversion loan and, in connection therewith, entered into a Home
Equity Conversion Mortgage (the "HECM"). The HECM is a mortgage
instrument akin to those commonly referred to as a "reverse"
mortgage. Such mortgages generally, require no re-payment until
either the death of the borrower, or transfer of the mortgaged
property. As a home equity instrument, Shakespeare was permitted to
draw funds up to an amount authorized by the Loan. Shakespeare's
claims are based upon the alleged improper and unlawful payment of
property taxes on her home in 2015. Briefly stated, the Plaintiff
alleges that the payment of her taxes took place without
justification or notice, and that such payment resulted in the
unlawful assessment of fees, adding to the total of her loan.

Styling this action as a class action pursuant to Rule 23(a)(b)(2)
and (b)(3) of the Federal Rules of Civil Procedure, Shakespeare
alleged a "policy and practice of improperly paying the property
taxes of homeowners" with HECM's "before those taxes are due
without contractual or other legal authority to so and without
providing notice to homeowners." She also alleged claims for breach
of contract, breach of implied covenants and duties or good faith
and fair dealing, unjust enrichment, and violation of Section 349
of the General Business Law of the State of New York, N.Y. Gen.
Bus. L. Section 349.

Live Well answered the Complaint and filed a cross-claim against
Celink. On May 3, 2019, RMF and Celink filed motions to dismiss the
Complaint. RMF alternatively sought to be severed from the action.

Following a hearing on RMF's motion, the Court recommended that
RMF's motion to dismiss for failure to state a claim be granted. As
for Celink, it recommended that Celink's Rule 12(b)(1) motion be
denied, but recommended that the Plaintiff's Section 349 claim and
unjust enrichment claims be dismissed.

On Sept. 15, 2020, following objections by the Plaintiff, the
District Court adopted the Report and Recommendations in their
entirety and closed the case. On Sept. 29, 2020, the Plaintiff
sought leave to amend her complaint. The Court denied the motion on
Oct. 7, 2020. The Plaintiff objected to the denial and on Oct. 13,
2020, the District Court overruled her objection and affirmed Judge
Shield's denial.

The Plaintiff appealed the adverse rulings to the Second Circuit.
On May 26, 2021, the Second Circuit issued a Summary Order,
affirming in part and vacating in part the District Court's Orders.
It affirmed RMF's dismissal and vacated the dismissal ruling
against Celink. It held that the Plaintiff has "raised sufficiently
plausible claims under Section 349 to survive the motion to dismiss
and proceed to summary judgment." The Second Circuit also vacated
dismissal of Plaintiff's unjust enrichment claim. It declined to
reach the merits of Shakespeare's appeal of the denial of her
motion to amend as procedurally improper. Mandate was issued on
Aug. 16, 2021, and the case was reassigned to the Honorable Joan M.
Azrack.

The Plaintiff seeks to amend the complaint to join two new proposed
plaintiffs. She alleges that like her HECM, the Proposed
Plaintiffs' HECM is held and serviced by RMF and subserviced by
Celink. She further asserts that the homes securing both
Shakespeare's and the Proposed Plaintiffs' HECM loans are located
in New York. As such, she alleges that the same federal and New
York laws and regulations are incorporated into the Plaintiffs'
loan agreements. Both Shakespeare and the Proposed Plaintiffs were
sued in foreclosure in New York, where the lawsuits were eventually
dismissed.

The Plaintiff alleges that as a result of the Defendants' unlawful
conduct she and the Proposed Plaintiffs had improper fees, costs
and charges added to their HECMs. The Proposed Amended Complaint
("PAC") asserts systemic servicing violations perpetrated by the
Defendants on seniors who are borrowers of HECM loans. The PAC
alleges that the Defendants' servicing violations breach the
standard HECM loan agreements, the implied duties of good faith and
fair dealing, violate New York GBL Section 349, and result in
unjust enrichment.

Additionally, the Plaintiff seeks to amend the complaint to
reinstate the Section 349 claim (Count VI) and unjust enrichment
claims (Count VII). She also seeks to plead four new claims for
breach of contract (Counts I-IV) and breach of the duties of fair
dealing and good faith (Count V).

The Plaintiff seeks to add Celink as a defendant on the breach of
contract claims and good faith and fair dealing claim (in addition
to the originally pled Section 349 and unjust enrichment claims).
She also seeks to add allegations concerning RMF's liability
resulting: (1) from RMF's alleged directly unlawful acts; (2) as a
successor lender, mortgagee and servicer to LWF; (3) as the
assignee of the Plaintiffs' HECM loan portfolio; (4) from having
allegedly ratified LWF's and Celink's conduct since RMF's
acquisition of LWF's loans and servicing rights; and (5) from RMF's
alleged principal/agent relationship with Celink.

RMF opposes the motion to amend. It asserts that the PAC should be
denied because it was brought with the improper purpose of, inter
alia, attempting to bolster the class construct alleged in the
initial complaint. It further contends that the new claims are
futile.

Celink also opposes the instant motion. It argues that the motion
to add the Proposed Plaintiffs is procedurally improper, as
permissive joinder is governed by Rule 20(a) of the Federal Rules
of Civil Procedure. It asserts that Shakespeare and the Proposed
Plaintiffs do not satisfy the requirements proscribed by Rule
(20)(a) and thus, cannot be joined as Plaintiffs. Celink also
contends that the proposed amendment would unduly prejudice Celink
and that the proposed amendment is futile.

Judge Shields holds that the claims asserted by the Proposed
Plaintiffs and Shakespeare do not arise out of the same transaction
or occurrence. Their allegations arise out of separate loans,
obtained at different times from different lenders, and secured by
separate properties. Further, their loans went into default for
different reasons at different times, while their loans were in
different statuses.

In an effort to join Shakespeare's and the Proposed Plaintiffs'
claims, the PAC seeks to adjust the class definition to include
borrowers whose loans were serviced or subserviced by the
Defendants and were charged fees, costs, charges, penalties,
interest, or mortgage insurance premiums for a variety of reasons.
The essential facts of the claims alleged by Shakespeare and the
Proposed Plaintiffs are separate and distinct.

As such, Judge Shields holds that the Plaintiffs have failed to
plead facts sufficient to support a finding that the Plaintiffs'
claims against these three defendants are "so logically connected"
to dictate that they be resolved together. While she takes no
position as to the merits of the Proposed Plaintiffs' claims, Judge
Shields says the Proposed Plaintiffs are free to pursue their
claims in a separate action. However, she notes that if the
Proposed Plaintiffs do elect to file a new complaint in the Eastern
District of New York, such case may not be properly designated as
related to the instant action. Accordingly, Shakespeare's motion to
join Sheila Dancy-Wilkins and Sheila Dancy-Wilkins as Power of
Attorney for Flora Mayweathers is denied.

As the Court has determined that the Proposed Plaintiffs would be
improperly joined, the remainder of the instant motion is analyzed
solely with respect to Shakespeare's allegations.

First, Judge Shields finds that the premise of the Defendants'
undue delay argument is that amendment would effectively restart
the case from square one, nearly four years after its commencement,
as Plaintiff seeks to change the scope of the action. However, the
Plaintiff has offered plausible explanations for the timing of the
instant motion. Specifically, she clarifies that the motion was
filed immediately following remand from the Second Circuit, before
the commencement of discovery. Because the Defendants have not
shown that the Plaintiff unduly delayed or acted with a dilatory
motive, they must show prejudice in connection with the delay to
warrant denial of the motion to amend.

Second, Celink indicates that allowing amendment will necessitate
discovery on claims unrelated to the claims in the initial
complaint. Judge Shields holds that this alleged prejudice does not
rise to a level that justifies denying leave to amend. She finds
that (i) the Plaintiff filed her motion before discovery has even
begun; (ii) the Defendants' protestations that allowing the
proposed amendment will impose an undue burden on the Defendants by
expanding the scope of discovery are also insufficient; and (iii)
whether a party had prior notice of a claim and whether the new
claim arises from the same transaction as the claims in the
original pleading are central to the undue prejudice analysis.

Therefore, although the amendment expands the claims, the new
claims it asserts are related to the Plaintiff's existing claims.
Accordingly, the Defendants have not carried their burden of
demonstrating they will be unduly prejudiced by the proposed
amendment.

Third, the Defendants oppose the motion on the ground that
amendment is futile. They offer extensive argument on the merits of
each cause of action. In reply, the Plaintiff offers significant
legal argument in support of her legal theories attempting to argue
that the claims are not futile.

Judge Shields finds that (i) whether Celink is or was RMF's agent,
and whether RMF ratified the alleged improper conduct of Celink and
Live Well, are factual disputes which are premature to decide; (ii)
the Plaintiff has adequately alleged a breach of contract claim;
(iii) Celink's argument the breach of duties of good faith and fair
dealing (Count V) as well as the Section 349 claim (Count VI) fail
to state a claim fail because they are based on alleged violations
of state and federal law that lack any private right of action
fails to demonstrate futility; (iii) amendment to include Counts I
and II would be futile; and (iv) the Plaintiff has adequately pled
a plausible claim for unjust enrichment.

For the foregoing reasons, Judge Shields grants in part and denies
in part the Plaintiff's motion to amend the complaint, appearing as
Docket Entry No. 165. The motion is granted to the extent that
Shakespeare may amend to include Counts III-VI against the
Defendants. The motion is denied on futility grounds as to Counts I
and II. To the extent the Plaintiff seeks join the Proposed
Plaintiffs, the motion is denied.

As such, the Plaintiff is directed to file an amended complaint
which includes proposed Counts III-VI, pled solely by Shakespeare.

A full-text copy of the Court's Sept. 30, 2022 Memorandum & Order
is available at https://tinyurl.com/29fkmpwe from Leagle.com.


LOOP INDUSTRIES: Appeals From Class Action Bid Dismissal Due Oct 26
-------------------------------------------------------------------
Loop Industries, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended August 31, 2022, filed with the Securities
and Exchange Commission on October 12, 2022, that the period to
appeal the judgment dated July 29, 2022, by the Superior Court of
Quebec dismissing a shareholder's Application for authorization of
a class action and for authorization to bring an action pursuant to
section 225.4 of the Quebec Securities Act, ends on October 26,
2022.

On October 13, 2020, the Company, Loop Canada Inc. and certain of
their officers and directors were named as defendants in a proposed
securities class action filed in the Superior Court of Quebec
(District of Terrebonne, Province of Quebec, Canada), in file no.
700-06-000012-205. The Application for authorization of a class
action and for authorization to bring an action pursuant to section
225.4 of the Quebec Securities Act ("the Application") was filed by
an individual shareholder on behalf of himself and a class of
buyers who purchased the Company's securities during the "Class
Period" (not defined).

Plaintiff alleged that throughout the Class Period, the defendants
allegedly made false and/or misleading statements and allegedly
failed to disclose material adverse facts concerning the Company's
technology, business model, operations and prospects, thus causing
the Company's stock price to be artificially inflated and thereby
causing plaintiff to suffer damages. Plaintiff sought unspecified
damages stemming from losses he claimed to have suffered as a
result of the foregoing.

On December 13, 2020, the Application was amended in order to add
allegations regarding specific misrepresentations. The
authorization hearing was held on February 24, 2022.

In a judgment dated July 29, 2022, the Superior Court of Quebec
dismissed the Application for authorization of a class action and
for authorization to bring an action pursuant to section 225.4 of
the Quebec Securities Act. The period to appeal the judgment ends
on October 26, 2022.

Loop Industries, Inc. is a technology company that owns patented
and proprietary technology that depolymerizes no and low-value
waste PET plastic and polyester fiber to its base building blocks
(monomers).


LOOP INDUSTRIES: Court Sets Jan. 2023 Hearing on Tremblay Suit Deal
-------------------------------------------------------------------
Loop Industries, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended August 31, 2022, filed with the Securities
and Exchange Commission on October 12, 2022, that the court has set
January 5, 2023 as the settlement hearing in the class-action
lawsuit captioned Olivier Tremblay, Individually and on Behalf of
All Other Similarly Situated v. Loop Industries, Inc., Daniel
Solomita, and Nelson Gentiletti, Case No. 7:20-cv-0838-NSR.

On October 13, 2020, the Company and certain of its officers were
named as defendants in a proposed class-action lawsuit filed in the
United States District Court for the Southern District of New York,
captioned Olivier Tremblay, Individually and on Behalf of All Other
Similarly Situated v. Loop Industries, Inc., Daniel Solomita, and
Nelson Gentiletti, Case No. 7:20-cv-0838-NSR ("Tremblay Class
Action"). The complaint alleges that the defendants violated
Sections 10(b) and 20(a) and Rule 10b-5 of the Securities Exchange
Act of 1934 by allegedly making materially false and/or misleading
statements, as well as allegedly failing to disclose material
adverse facts about the Company's business, operations, and
prospects, which caused the Company's securities to trade at
artificially inflated prices. The complaint seeks unspecified
damages on behalf of a class of purchasers of Loop's securities
between September 24, 2018 and October 12, 2020.

On October 28, 2020, the Company and certain of its officers were
named as defendants in a second proposed class-action lawsuit filed
in the United States District Court for the Southern District of
New York, captioned Michelle Bazzini, Individually and on Behalf of
All Other Similarly Situated v. Loop Industries, Inc., Daniel
Solomita, and Nelson Gentiletti, Case No. 7:20-cv-09031-NSR. The
complaint allegations are similar in nature to those in the
Tremblay Class Action.

On January 4, 2021, the United States District Court for the
Southern District of New York consolidated the two proposed
class-action lawsuits as In re Loop Industries, Inc. Securities
Litigation, Master File No. 7:20-cv-08538-NSR. Sakari Johansson and
John Jay Cappa were appointed as Co-Lead Plaintiffs and Glancy
Prongay & Murray LLP and Pomerantz LLP were appointed as Co-Lead
Counsel for the class.

Plaintiffs served a consolidated amended complaint on February 18,
2021, which alleges that the defendants violated Sections 10(b) and
20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 by
allegedly making materially false and/or misleading statements, as
well as allegedly failing to disclose material adverse facts about
the Company's business, operations, and prospects, which caused the
Company's securities to trade at artificially inflated prices. The
consolidated amended complaint relies on the October 13, 2020
report published by a third party regarding the Company to support
their allegations. Defendants served a motion to dismiss the
consolidated amended complaint on April 27, 2021. Plaintiffs'
opposition to the motion to dismiss was served on May 27, 2021 and
Defendants' reply in support of the motion to dismiss was served on
June 11, 2021.

On March 1, 2022, the Company and the current and former officer
defendants entered into an agreement for the settlement of the
Tremblay Class Action, and, on March 4, 2022, advised the Court of
the agreement to settle.  The agreement, which is subject to
certain conditions, including court approval, requires the Company
to pay $3.1 million to the plaintiff class.  The Company's total
cash contribution to the settlement and outstanding legal fees
related to the lawsuit, combined, will be approximately $2.52
million.  The remainder of the settlement will be paid by the
Company's D&O insurance carriers. As a result, the Company recorded
a contingency loss of $2,519,220 which was included in accounts
payable and accrued liabilities at February 28, 2022. As at August
31, 2022, the amount included in accounts payable and accrued
liabilities related to the settlement was $2,231,606. The accrued
loss contingency for legal settlement was reduced by legal costs
incurred in the six-month period ended August 31, 2022 of
$287,614.

On May 24, 2022, Lead Plaintiffs filed their motion for preliminary
approval of the proposed class action settlement.  

On September 19, 2022, the Court entered an order preliminarily
approving the settlement and providing for notice.   

The Court scheduled the settlement hearing for January 5, 2023.

The settlement agreement does not constitute an admission,
concession, or finding of any fault, liability, or wrongdoing by
the Company or any defendant.

Loop Industries, Inc. is a technology company that owns patented
and proprietary technology that depolymerizes no and low-value
waste PET plastic and polyester fiber to its base building blocks
(monomers).

LTD FINANCIAL: Jenkins Suit Remanded to Gaston County Super. Court
------------------------------------------------------------------
In the case, MICHAEL S. JENKINS, on behalf of himself and others
similarly situated, Plaintiff v. LTD FINANCIAL SERVICES, L.P.,
Defendant, Case No. 3:21-cv-00407-RJC-DCK (W.D.N.C.), Judge Robert
J. Conrad, Jr., of the U.S. District Court for the Western District
of North Carolina, Charlotte Division, grants the Plaintiff's
Motion to Remand and denies as moot the Defendant's Motion to
Dismiss.

Mr. Jenkins claims that LTD violated state and federal law when it
transmitted information about his credit-card debt to a
letter-mailing vendor. LTD, a debt collector, received the right to
collect Jenkins's debt, which was in default. To collect the debt,
LTD hired a vendor to mail a letter to Jenkins. After LTD
transmitted information about Jenkins's debt to the vendor, the
vendor "populated" the information into a "prewritten template" and
mailed the letter to Jenkins.

Mr. Jenkins brought this putative class action to challenge LTD's
use of a letter-mailing vendor. He claims that LTD violated the
Fair Debt Collection Practices Act ("FDCPA"), which generally
prohibits debt collectors from "communicating" with third parties
"in connection with the collection of any debt," 15 U.S.C. Section
1692c(b). His Amended Complaint also alleges that LTD violated the
FDCPA's prohibition on "unfair" and "unconscionable"
debt-collection practices, 15 U.S.C. Section 1692f. And it asserts
claims under the North Carolina Debt Collection Act, N.C. Gen.
Stat. Section 75-53, the North Carolina Collection Agency Act, N.C.
Gen. Stat. Section 58-70-105, and the North Carolina Unfair and
Deceptive Trade Practices Act, N.C. Gen. Stat. Section 75-1.1.

Jenkins filed his initial complaint in the Superior Court of Gaston
County, North Carolina. LTD removed the case to this Court on the
grounds that this Court has federal-question jurisdiction over
Jenkins's FDCPA claims. After the parties briefed LTD's Motion to
Dismiss, Jenkins moved to remand the case to state court, arguing
that he lacks Article III standing to assert an FDCPA claim in
federal court.

Judge Conrad holds that the Amended Complaint does not satisfy
Article III's standing requirements. Specifically, it fails to
allege a "concrete" injury in fact. To satisfy the concreteness
requirement, a plaintiff must show that his alleged injury "has a
'close relationship' to a harm 'traditionally' recognized as
providing a basis for a lawsuit in American courts." The Plaintiffs
make that showing by identifying "a close historical or common-law
analogue for their asserted injury."

LTD, which "bears the burden of demonstrating that removal
jurisdiction is proper," identifies one arguably comparable
common-law harm: the public disclosure of private information. Mem.
But Jenkins' Amended Complaint does not plead that kind of harm.

The public-disclosure tort allows a plaintiff to sue when someone
"gives publicity to a matter concerning his private life."
"Publicity" means that "the matter is made public, by communicating
it to the public at large, or to so many persons that the matter
must be regarded as substantially certain to become one of public
knowledge." Such publicity causes the plaintiff to suffer an
"invasion of his privacy." In the case, Jenkins fails to allege
that his private information was given any publicity, so he does
not plead the kind of harm caused by the public-disclosure tort: an
"invasion of privacy."

Mr. Jenkins alleges that the letter-mailing vendor "populated" his
private information "into a prewritten template," "printed" the
letter, and "mailed" it to him. But he does not allege that the
information "was actually read and not merely processed."

Judge Conrad holds that unread information does not inflict a
traditionally recognized harm. Given the possibility that printing
vendors "merely process" the information they receive, the Supreme
Court has doubted whether "disclosures to printing vendors were
actionable publications" at common law, and the Court has rejected
the argument that information is "published" when it is sent to
vendors who "print" it and "mail" it to the owners of the
information.

Because Jenkins does not allege that anyone read his private
information, he does not plead an "invasion of his privacy" -- the
kind of harm that the public-disclosure tort is aimed at
redressing. Rather, he alleges a "bare procedural violation,
divorced from any concrete harm." He thus lacks Article III
standing to assert his FDCPA claim. He asserts no other federal
claims, and LTD does not invoke diversity jurisdiction, so the
Court lacks subject-matter jurisdiction over the case. And because
the Court declines to exercise supplemental jurisdiction over
Jenkins's state-law claims, the case will be remanded.

In view of the foregoing, Judge Conrad grants the Motion to Remand
and denies as moot the Motion. He remanded the case to the Superior
Court of Gaston County, North Carolina, Case No. 21-CVS-2680.

The Clerk of Court is directed to close the case.

A full-text copy of the Court's Sept. 30, 2022 Order is available
at https://tinyurl.com/yc4j667k from Leagle.com.


MAUI JIM: Illinois Court Strikes Pecho's Bid to Remand Class Suit
-----------------------------------------------------------------
Judge Rebecca R. Pallmeyer of the U.S. District Court for the
Northern District of Illinois, Eastern Division, strikes the
Plaintiff's motion to remand without prejudice in the lawsuit
styled CHRISTOPHER PECHO, individually and on behalf of similarly
situated individuals, Plaintiffs v. MAUI JIM, INC., an Illinois
Corporation; and MAUI JIM USA, INC., an Illinois Corporation,
Defendants, Case No. 21-cv-06202 (N.D. Ill.)

Pecho, on behalf of a putative class of plaintiffs, filed suit in
state court against two Illinois companies, Maui Jim, Inc. and Maui
Jim USA, Inc. (collectively, "Maui Jim" or "Defendants") and one
Delaware corporation, Fittingbox, Inc., for alleged violations of
the Illinois Biometric Information Privacy Act ("BIPA"). The
Plaintiff alleges that the Defendants unlawfully collected his
facial geometry when he used Fittingbox's Virtual Try-On software
to superimpose eyewear on his face on Maui Jim's website.
Fittingbox removed the case to federal court pursuant to the Class
Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. Section 1332(d).

Following removal, the Plaintiff moved to remand. He contends that
CAFA's mandatory "local controversy" exception applies because more
than two-thirds of the proposed class are likely citizens of
Illinois. In the alternative, he asks for leave to conduct
jurisdictional discovery to assess the applicability of CAFA's
local controversy exception.

The Defendants oppose remand, arguing that nothing filed after
removal should affect the Court's jurisdictional analysis. After
the parties briefed this issue, the Plaintiff filed a Second
Amended Complaint ("SAC"), dropping his claims against Fittingbox.
Fittingbox and Maui Jim also have moved the Court to dismiss the
Plaintiff's complaint for failure to state a claim. Since
submission of the briefs on these motions, the Defendants have
submitted additional authority in support of their argument for
dismissal.

At this stage of the proceedings, the Court accepts the allegations
in the Plaintiff's complaint as true. Maui Jim is an Illinois
company that sells luxury sunglasses and apparel. In September
2021, the Plaintiff, a resident of Cook County, visited Maui Jim's
website. The Plaintiff used Maui Jim's "Virtual Try-On"
software--which scans shoppers' facial geometry--to digitally
superimpose various pairs of sunglasses on his face.

The Plaintiff alleges that Maui Jim's use of the Virtual Try-On
software violates provisions of BIPA, which regulates companies
that collect and store Illinois citizens' biometric data.

The Plaintiff pursues this litigation as a class action under 735
ILCS 5/2-801. He asserts that, by operating its website, Maui Jim
captured, collected, received through trade, or otherwise obtained,
and store thousands of templates of facial geometry--highly
detailed geometric maps of the face--from thousands of Illinois
individuals. He seeks to represent a class of all individuals whose
biometrics were captured, collected, received through trade, or
otherwise obtained, and/or disseminated through the use of Maui
Jim's 'Virtual Try-On' software within the state of Illinois any
time within the applicable limitations period.

When the Plaintiff initially filed the case in state Court, he
named Fittingbox--a Delaware corporation that licensed the Virtual
Try-On software to Maui Jim--as a Defendant. Fittingbox removed the
case to this Court pursuant to CAFA. 28 U.S.C. Section 1332(d).
That provision authorizes removal so long as there is "minimal
diversity of citizenship" between the parties and the amount in
controversy exceeds $5 million. The parties agree that these
requirements were satisfied at the time of removal.

After the case was removed, the Plaintiff moved to remand under an
exception to CAFA that obligates the Court to decline to exercise
jurisdiction over local controversies. In the alternative, he moved
to sever and remand claims for which he argues he lacks federal
standing, and, for the remaining claims, to permit jurisdictional
discovery in order to assess the applicability of CAFA's local
controversy exception. Fittingbox opposed the Plaintiff's motion,
arguing that the local controversy exception does not apply, that
the Plaintiff does have standing to pursue these claims in federal
Court, and that jurisdictional discovery would be futile. Maui Jim
adopted Fittingbox's response.

Soon after Fittingbox and Maui Jim filed these motions, the
Plaintiff amended his complaint, removing Fittingbox as a
Defendant. With only the Maui Jim Defendants, both Illinois
citizens, remaining, he argues that CAFA's location controversy
exception squarely applies, mandating remand. Maui Jim responds
that the Court cannot consider post-removal amendments when
assessing the applicability of CAFA's local controversy exception.
Additionally, it urges the Court to dismiss the Plaintiff's SAC.

Judge Pallmeyer states that the case presents a number of
jurisdictional issues, including the question of whether the
Plaintiff has Article III standing to pursue claims under Sections
15(a) and (c) of BIPA. As to that issue, the parties are in an
unusual posture, in that the Plaintiff, who seeks remand, argues
that he does not have standing to pursue these claims, while the
Defendants, resisting remand, insist that he does.

There is, for now, no challenge to the Plaintiff's standing to
proceed on Section 15(b), but he urges that the Court should
decline to exercise jurisdiction over his Section 15(b) claim and
remand the claim (along with the rest of the case) due to CAFA's
local controversy exception. Because binding precedent requires
"evidence" to resolve that question--and the Plaintiff relies only
on logical deduction from his proposed class definition--the Court
orders jurisdictional discovery.

Even when the basic requirements of subject matter jurisdiction
under CAFA exist, the "local controversy" exception may require the
Court to remand the case, if the elements of that exception are
present, Judge Pallmeyer notes. The Defendants assert that the
local controversy exception would not apply as a matter of law if
the Court were to analyze the Plaintiff's first amended complaint
("FAC"). The Plaintiff contends that the exception would require
remand even on his original complaint. But for the reasons
explained here, the Court will consider the operative Second
Amended Complaint ("SAC") in assessing the "local controversy"
exception.

The Court finds McInnis v. SureStaff, LLC, No. 21 C 0309, 2021 WL
4034072 (N.D. Ill. Sept. 3, 2021), more persuasive because it
demonstrates closer allegiance to the Seventh Circuit's recognition
that whether the Court has CAFA jurisdiction and whether it must
decline to exercise it are two distinct inquiries. It will, thus,
consider the Plaintiff's post-removal SAC.

The local controversy exception requires that (a) two-thirds of the
members of the putative class and sub class be citizens of a state
where the action was filed, 28 U.S.C. Section 1332(d)(4)(A)(i)(I);
(b) at least one defendant--from whom significant relief is sought
and whose conduct forms a significant basis for the claim--must be
a citizen of the filing state, 28 U.S.C. Section
1332(d)(4)(A)(i)(II); (c) plaintiff's principal injuries must have
occurred in the filing state, 28 U.S.C. Section
1332(d)(4)(A)(i)(III); and (d) no other class action filed against
the defendant on behalf of same or other person may have been filed
in the three years leading up to the present action.

Only requirement (a)--that two-thirds of the class be citizens of
Illinois--is meaningfully disputed here, Judge Pallmeyer notes.
Though the Court is sympathetic to the Plaintiff's assumption that,
logically, a class limited to individuals harmed in Illinois would
likely produce a class of mostly Illinois citizens, his argument
that the Court may simply adopt this assumption has been explicitly
rejected by the Seventh Circuit.

Under binding precedent, Judge Pallmeyer holds that the Plaintiff
bears the burden of establishing by a preponderance of the evidence
that two-thirds of his proposed class members are Illinois
citizens, citing In re Sprint Nextel Corp., 593 F.3d 669, 673 (7th
Cir. 2010). In other words, the Plaintiff must produce some
evidence that would allow the Court to determine the class members'
citizenships on the date the case was removed.

Judge Pallmeyer finds that the Plaintiff's appeal to logic--i.e.,
"guesswork"--while persuasive, is insufficient. Because he offers
no evidence beyond his own citizenship, the Plaintiff cannot meet
his burden to show that two-thirds of the putative class are
citizens of Illinois.

Accordingly, the Court exercises its discretion to order
jurisdictional discovery. The Court does so while acknowledging
that the home state exception likely applies here, given that the
class is defined to include only people who were harmed in
Illinois--in other words, people who used the Virtual Try-On
software in Illinois. The Court finds it difficult to imagine that
more than one-third of those putative plaintiffs were not also
citizens at the time this case was filed.

On the other hand, Maui Jim has not asserted that jurisdictional
discovery would be futile--unlike Fittingbox, which argued that it
did not collect or retain users' identifying information. The
principal injuries occurred in Illinois, where BIPA is in force.
See 28 U.S.C. Section 1332(d)(4)(A)(ii). Judge Pallmeyer finds
there has been no action in the preceding three years that would
implicate Section 1332(d)(4)(A)(ii).

The Court reminds the parties that they need not determine the
citizenship of every putative class member individually to present
evidence on this question. In other cases, class action plaintiffs
have taken a random sample of the class members to determine
citizenship, citing Keltner v. SunCoke Energy, Inc., No.
3:14-CV-01374-DRHPMF, 2015 WL 3400234, at *6 (S.D. Ill. May 26,
2015).

The Court expects the parties to develop an approach to clarify
class member citizenship to the degree necessary for the Court to
resolve whether the local controversy exception applies.

For these reasons, the Court strikes Plaintiff Pecho's motion to
remand without prejudice and grants his request in the alternative
for leave to conduct jurisdictional discovery. The Court terminates
Fittingbox's motion to dismiss as moot. The Court strikes Maui
Jim's motion to dismiss without prejudice. The parties are directed
to submit a written status report on or before Oct. 28, 2022.

A full-text copy of the Court's Memorandum Order dated Sept. 29,
2022, is available at https://tinyurl.com/2s37zfyh from
Leagle.com.


MDL 2543: Disbursement of $889K to Counsel in GM Switch Suit Okayed
-------------------------------------------------------------------
In the case, IN RE: GENERAL MOTORS LLC IGNITION SWITCH LITIGATION.
This Document Relates To All Actions, Case Nos. 14-MD-2543 (JMF),
14-MC-2543 (JMF) (S.D.N.Y.), Judge Jesse M. Furman of the U.S.
District Court for the Southern District of New York orders to
disburse $888,822 from the Common Benefit Order Fund to the
Participating Counsel.

Orders No. 13 and No. 42 establish procedures for the collection,
expenditure, and disbursement of funds for the common benefit of
the Plaintiffs in this multi-district litigation.

In accordance with the Court's Orders dated May 28, 2021, July 16,
2021, and Dec. 15, 2021, the Participating Counsel were paid and/or
reimbursed for certain fees and costs, including certain of the
lodestar incurred in connection with the Economic Loss Class
Action, expenses incurred with the litigation and not previously
reimbursed, and Held Costs and certain other costs likewise not
previously reimbursed.

The Co-Lead Counsel has identified previously unreimbursed costs in
the amount of $432,354.84. Additional funds have become available
in the Common Benefit Order Fund, which total $456,467.84 after
payment of costs described.

The Co-Lead Counsel has proposed distributions in the same ratios
as in the Court's prior fee distribution Order of Dec. 15, 2021,
for previously unreimbursed fees for common benefit work that are
appropriately reimbursable from the Common Benefit Order Fund.

The Plaintiffs seek reimbursement of the referenced amounts.

Finding that there are sufficient funds for the reimbursement in
the Common Benefit Order Fund, Judge Furman orders that $888,822
will be disbursed from the Common Benefit Order Fund to the
Participating Counsel.

A full-text copy of the Court's Sept. 30, 2022 Order is available
at https://tinyurl.com/3th5pxsn from Leagle.com.


META PLATFORMS: Tracks Users' Online Activity, Hughes Suit Says
---------------------------------------------------------------
LAURENCE HUGHES, individually and on behalf of all others similarly
situated, Plaintiff v. META PLATFORMS, INC., Defendant, Case No.
3:22-cv-05747-TSH (S.D. Cal., Oct. 5, 2022) is a class action
seeking relief for all persons who used Meta's Facebook or
Messenger app and whose private browsing activity and
communications were surreptitiously intercepted, monitored and
recorded by Meta's in-app internet browsers in violation of the
U.S. Wiretap Act, the California's Invasion of Privacy Act, and the
Unfair Competition Law.

Beginning in April 2021, Apple's iOS 14 update required Meta to
obtain its users' informed consent before tracking their internet
activity on apps and third-party websites. As a result, Meta lost
access to its primary stream of revenue, derived from the user data
it obtained from this tracking. Now, even when users do not consent
to being tracked, Meta tracks Facebook users' online activity and
communications with external third-party websites by injecting
JavaScript code into those sites, says the suit.

Meta's undisclosed tracking of citizens' browsing activity and
communications violates federal and state wiretap laws and other
laws, entitling Plaintiff and Class members to damages. The
Plaintiff and Class members also seek injunctive relief and
equitable remedies to stop Meta's undisclosed and nonconsensual
tracking practices, the suit alleges.

Meta Platforms, Inc., doing business as Meta and formerly named
Facebook, Inc., and The Facebook, Inc., is an American
multinational technology conglomerate based in Menlo Park,
California.[BN]

The Plaintiff is represented by:

          Todd D. Carpenter, Esq.
          LYNCH CARPENTER, LLP
          1350 Columbia Street, Suite 603
          San Diego, CA 92101
          Telephone: (619) 762-1910
          Facsimile: (412) 231-0246
          E-mail: todd@lcllp.com

MONSANTO CO: Roundup Settlement Fairness Hearing Set Jan. 12, 2023
------------------------------------------------------------------
Dan Avery, writing for CNET, reports that if you've purchased
Roundup, HDX or Ace weed and grass killer in recent years, you
could be eligible for a multimillion-dollar payout -- but the
deadline to file a claim is just days away.

Agricultural giant Monsanto, which produces all three products,
agreed to a $45 million settlement this year in response to a
class-action suit accusing it of failing to warn customers that a
herbicide in its weed killers can potentially cause cancer or other
adverse health effects.

Monsanto and its parent company, Bayer, have faced tens of
thousands of personal injury claims filed by people diagnosed with
cancer after using Roundup. This suit is unrelated -- it instead
alleges Monsanto was negligent in not warning all customers of the
potential danger.

In a statement shared with CNET, Bayer said the US Environmental
Protection Agency "has repeatedly concluded that glyphosate is not
carcinogenic; therefore, a cancer warning label on Monsanto's
glyphosate-based products would be illegal misbranding."

Last year, however, Bayer announced it would remove glyphosate from
its retail lawn care products to "manage litigation risk in the
US."

Read on to find out what the Roundup case is about, who can file a
claim, how much they can expect to receive and when the deadline to
file is. For more class action cases, see if you qualify for
T-Mobile's $350 million payout or AT&T's $14 million hidden fee
settlement.  

What is Monsanto accused of in the class-action lawsuit?
The suit, filed in US District Court in Oregon in 2019, claims
Monsanto promoted and sold various weed and grass killers without
disclosing their potential cancer risks. All the cited products
contain glyphosate, one of the most common herbicides in the
world.

While the World Health Organization's International Agency for
Research on Cancer (IARC) in 2015 classified glyphosate as
"probably carcinogenic to humans," the EPA has determined there is
"no evidence that glyphosate causes cancer in humans."  

Monsanto denies any wrongdoing but in 2021 agreed to pay between
$23 million and $45 million to resolve the case. On June 21, 2022,
US District Judge Vince Chhabria provisionally approved the maximum
payout.

Bayer, Monsanto's parent company, said in a statement that its
support for a settlement "is not due to any safety concerns, as the
weight of scientific evidence and the conclusions of all expert
regulators worldwide continue to support the safety of
glyphosate-based herbicides."

Which Monsanto weed killer brands are included in the settlement?
The settlement includes 19 Monsanto products containing glyphosate,
including Roundup Ready-to-Use Weed & Grass Killer, HDX Weed &
Grass Killer Ready-to-Use and Ace Weed & Grass Killer Concentrate.

You can find a complete list of products here.

Who is eligible to file a claim in the Monsanto settlement?
Anyone in the US who purchased one of the varieties of Roundup, HDX
or Ace weed and grass killer covered by the suit for any other
reason than resale or distribution is eligible for a cash payment.

The relevant time period depends on the state in which a product
was bought. You can locate the specific time frame for your state
here (PDF).

Do I need to have a Roundup receipt to file a claim?
According to the provisional settlement, no.

"Recognizing that many consumers will not have receipts or will not
wish to go through the effort of locating them, proof of purchase
will not be required to claim up to one Product for each year of
the class period," the settlement said.

The only exception is for the largest and highest-priced
concentrated products, which will require valid proof of purchase.

How much money could I get in the Monsanto settlement?
The agreement compensates class members without proof of purchase
ffor up to 20% of the average retail price of up to 11 Roundup
products, according to Courthouse News, paying anywhere between 50
cents and $33 per bottle, depending on the size and state purchased
in.

With the exception of the three largest concentrated products,
claims without proof of purchase are limited to one item a year
within the period covered by the settlement.

If the class member has proof of purchase, there is no limit to the
number of units they can claim.

How do I file a claim to be part of the Roundup class-action
settlement?
To participate in the settlement, you need to file a claim that
includes your contact information, proof of purchase or information
about the product you purchased, the retail location of the
purchase including city and state, and the approximate date of
purchase.

You can file a claim here.

When is the deadline to file a claim?
The deadline to submit a claim or opt out of the settlement is Oct.
19, 2022. The deadline to object to the settlement is Dec. 5,
2022.

When will class members receive their money?

A final hearing to determine the fairness of the settlement is
slated for Jan. 12, 2023. If approved, payments would begin to be
issued at some point after that.

Does accepting the settlement mean I can't sue if I develop cancer
later?
The settlement does not relate to personal injury -- it only covers
false advertising, consumer fraud, breach of warranty and other
economic claims, according to the Top Class Actions website.

The settlement language "needs to scream from the mountaintops that
if you participate in this settlement and later get sick from
non-Hodgkin lymphoma your participation in this settlement does not
preclude you from suing Monsanto," Chhabria, the district court
judge, said in an April hearing, Courthouse News Service reported.

There have been at least three high-profile civil suits involving
the potential links between Monsanto's weed killers and cancer: In
2018, a San Francisco jury awarded $289 million to a groundskeeper
who used Roundup products and developed late-stage non-Hodgkin
lymphoma.    

In March 2019, a federal jury awarded $80 million to another
California man after determining Roundup was "a substantial factor"
in causing his lymphoma. In May of that same year, another jury
awarded more than $2 billion to a California couple in their 70s
who had both been diagnosed with the same illness after using
Roundup for decades.

Courts, including the Supreme Court, have rejected Bayer's appeals
and, in 2020, the company agreed to pay $10.9 billion to settle
nearly 100,000 more lawsuits from individuals claiming glyphosate
in Roundup and other Monsanto weed killers caused them to develop
cancer. [GN]

NEW YORK: Agreement in Peoples v. Annucci Gets One Year Extension
-----------------------------------------------------------------
In the case, LEROY PEOPLES, ET AL., Plaintiffs v. ANTHONY ANNUCCI,
ET AL., Defendants, Case No. 11-CV-2694 (ALC) (S.D.N.Y.), Judge
Andrew L. Carter of the U.S. District Court for the Southern
District of New York grants the Plaintiffs' motion for relief from
judgment seeking a one-year extension of the Settlement Agreement.

Plaintiffs Leroy Peoples, Tonja Fenton, and Dewayne Richardson, on
behalf of themselves and the class, bring their motion for relief
from judgment pursuant to Rules 60(b)(5) and (b)(6) of the Federal
Rules of Civil Procedure, seeking a one-year extension of the
Settlement Agreement.

The class action challenged solitary confinement practices in New
York State Department of Corrections and Community Supervision
("DOCCS") facilities. In 2016, the parties entered into the
Settlement Agreement, which provided that the Plaintiffs would
monitor DOCCS' compliance with the settlement through various
measures, including four-day facility tours held twice each
calendar year, attended by the Plaintiffs' expert, as well as an
annual meeting. The tours and meetings proceeded as planned until
the COVID-19 pandemic. The first tour to be held since the onset of
the COVID-19 occurred in September 2021.

The Plaintiffs first approached DOCCS in March 2021 with the
proposal to extend the Agreement by one year. On April 21, 2021,
DOCCS wrote that it did "not believe an extension is warranted." It
offered to schedule additional tours during the current year
instead. The Plaintiffs renewed their request on July 26, 2021, and
the Defendants' counsel agreed to propose the extension to the
Defendants. The Plaintiffs' counsel followed up on Aug. 16, 2021,
Aug. 27, 2021, and Sept. 8, 2021. On Sept. 10, 2021, the Defendants
responded that the matter of extension could be addressed at the
Sept. 28, 2021 and Sept. 30, 2021 tours. The Plaintiffs requested
that the Defendants instead respond by Sept. 20, 2021 because
further delay would prevent them from bringing this issue to the
Court's attention should the parties fail to reach consensus on an
appropriate extension. Having received no response, the Plaintiffs
filed their pre-motion conference letter regarding the instant
motion on Sept. 29, 2021.

While Judge Carter acknowledges that the Plaintiff's pre-motion
letter regarding this motion was filed shortly before the Agreement
was to expire, he finds that the motion was timely given the
circumstances. For approximately six months prior to their
pre-motion letter, the Plaintiffs made multiple good faith efforts
to resolve the issue of extension consensually before bringing it
to the Court. The Defendants did not respond to the Plaintiffs'
various attempts despite knowing that the Agreement was soon
terminating.

Judge Carter opines that the interests of finality do not pose a
barrier -- the Plaintiffs brought this motion before -- albeit
close in time to -- the termination of the settlement's monitoring
period and have made clear that they are requesting a limited
one-year extension to account for the time lost due to COVID-19.
Thus, there is no significant encroachment of the "tangible
interest in avoiding the costs, uncertainty, and even disrespect
reflected by repeated and otherwise unfounded challenges to the
Court's judgments."

Similarly, Judge Carter declines to hold that the Defendants will
be prejudiced such that any prejudice should outweigh the reasons
for granting the motion. Based on the clear terms of the Agreement
and the already-established practice of facility visits and annual
meetings, the Defendants anticipated a certain number of visits,
occurring in a certain format (in-person), at certain times of the
calendar year. COVID-19 necessarily changed that expectation
temporarily. Requiring the Defendants to partake in the same
process to which they had previously agreed for the commensurate
period of time that was missed (one year) does not significantly
prejudice them.

Rule 60(b)(5) may be invoked when there are "changes in
circumstances that were beyond the defendants' control and were not
contemplated by the court or the parties when the decree was
entered." The Second Circuit has not spoken directly on this issue
but has implied that a party can only prevail under Rule 60(b)(5)
if it points to a "material, relevant change in fact or law."

In the case, COVID-19 was, of course, not contemplated at the time
of the Settlement Agreement, and the change in fact and
circumstances resulting in the cancelled visits were beyond the
parties' control. Further, COVID-19 materially affected the
Plaintiffs' ability to monitor the Defendants' compliance with the
Settlement Agreement as they could not partake in the crucial
in-person visits and meetings, without which they could not carry
out their duties under the Agreement.

The Defendants' remaining arguments are without merit.

Accordingly, the motion for relief from the order of settlement is
granted. Judge Carter extends the Settlement Agreement for a period
of one year, to begin at the date of his Order.

The Clerk of Court is respectfully directed to terminate the motion
at ECF No. 538.

A full-text copy of the Court's Sept. 30, 2022 Opinion & Order is
available at https://tinyurl.com/2kmh6hy4 from Leagle.com.


NEXTLEVEL ASSOCIATION: Court Grants Bids to Dismiss Carpenter Suit
------------------------------------------------------------------
Judge Robert J. Conrad, Jr., of the U.S. District Court for the
Western District of North Carolina, Charlotte Division, grants two
motions to dismiss the Plaintiff's amended complaint in the lawsuit
styled SUSAN K. CARPENTER, on behalf of itself and all others
similarly situated trustee for H. Joe King, Jr. Revocable Trust,
Plaintiff v. NEXTLEVEL ASSOCIATION SOLUTIONS, INC., and WILLIAM
DOUGLAS MANAGEMENT, INC., Defendants, Case No.
3:21-cv-00019-RJC-DCK (W.D.N.C.).

The matter comes before the Court on Defendant Nextlevel
Association Solutions, Inc., doing business as HomeWiseDocs.com's
Motion to Dismiss Plaintiff's Amended Complaint, and Defendant
William Douglas' Motion to Dismiss Amended Complaint.

According to the Amended Complaint, the Plaintiff is the trustee of
the H. Joe King, Jr. Revocable Trust, and acted in her capacity as
the trustee in the events related to this case. William Douglas is
a property management firm, that offers property management
services to home owners associations ("HOAs") and condo owners
associations ("COAs") (collectively, "OAs"). HomeWise provides
internet-accessible software to property management companies that
enables the companies to, among other things, track the collection
of OA assessments. William Douglas utilizes HomeWise's software for
this service, but William Douglas does not pay HomeWise for its
use; instead, HomeWise charges consumers directly for the
services.

Together, the Defendants provide statements containing any unpaid
OA assessments in connection with the sale, gift, conveyance,
assignment, inheritance, or other transfer of an ownership interest
in real property (referred as "statement(s) of unpaid
assessments"). When providing these statements, a requestor makes a
request for a statement of unpaid assessments initially through
HomeWise. Then, a William Douglas employee receives the request,
determines whether the homeowner has any unpaid OA assessments,
documents the amount owed or a zero balance in the HomeWise system,
and sends a form document titled "Closing Letter" which is the
statement of unpaid assessments.

The process to generate these statements requires a handful of
keystrokes and approximately five minutes or less of the William
Douglas employee's time. Closing attorneys, title insurance
companies, and lenders require statements of unpaid assessments;
therefore, "for practical purposes" a homeowner cannot sell a home
that is part of an OA without a statement of unpaid assessments.

The Defendants charge fees for these statements of unpaid
assessments, invoiced to homeowners together, but as separate line
items. The fees are paid as part of the real estate closing. The
fees are charged without regard to individual circumstances,
without performing an analysis regarding the actual cost to provide
the statements, and the vast majority of the fees represent "pure
profit" for the Defendants. Neither Defendant contracts with
homeowners in the managed OAs. Homeowners cannot negotiate with the
Defendants regarding the fees charged for providing the statements
of unpaid assessments.

On April 2, 2020, the Plaintiff sold a home located at 1236
Archdale Drive, Unit D, in Charlotte, North Carolina. The Archdale
Property is located in an OA that contracts with William Douglas
for property management responsibilities. When the Plaintiff sold
the Archdale Property, William Douglas charged her a $150 fee for a
statement of unpaid assessments and other services. The closing
attorney for the transaction reflected the fee on the closing
statement for the property as "HOA Transfer Fee to William Douglas
Property Management." HomeWise also charged the Plaintiff a $25 fee
for preparation of the statement of unpaid assessments and other
services.

The next day, on April 3, 2020, the Plaintiff sold a home located
at 8917 Hunter Ridge Drive, in Charlotte, North Carolina. The
Hunter Ridge Property is located in an OA that contracts with
William Douglas for property management responsibilities. When the
Plaintiff sold the Hunter Ridge Property, William Douglas charged
her a $215 fee, comprised of a $150 "Closing Letter and Documents
Package (Includes Transfer Fee)" fee, a $40 "rush fee," and a $25
"Closing Letter Update" fee. Additionally, HomeWise charged the
Plaintiff a $40 "Closing Letter and Documents Package (Includes
Transfer Fee)" fee.

Therefore, in total the Defendants charged the Plaintiff $255 for
providing the initial Closing Letter and Documents Package and an
updated Closing Letter and Documents Package to reconfirm that the
Plaintiff was current on her assessment payments when the closing
of the Hunter Ridge Property was delayed by two weeks.

On June 23, 2020, the Plaintiff filed a class action Complaint in
the Superior Court of Mecklenburg County against Defendant William
Douglas, and soon after, she filed a class action Amended Complaint
adding HomeWise as a Defendant. Thereafter, on Jan. 13, 2021,
HomeWise removed the action to this Court pursuant to 28 U.S.C.
Section 1332(d).

The Amended Complaint brings the following individual and class
claims against Defendants: (1) violation of N.C. Gen. Stat. Section
39A-1, et seq. (the "North Carolina Transfer Fee Covenant
Prohibition Act"); (2) violation of the North Carolina Unfair and
Deceptive Trade Practices Act, N.C. Gen. Stat. Section 75-1.1, et
seq. (the "UDTPA"); (3) negligent misrepresentation; (4) violation
of the North Carolina Debt Collection Act, N.C. Gen. Stat. Section
75-50, et seq. (the "NCDCA"); (5) unjust enrichment; (6)
declaratory judgment; and (7) civil conspiracy.

After the action was removed to the Court, the Defendants each
filed a motion to dismiss and the Plaintiff filed a motion to
remand the case to state court. The Court denied the Plaintiff's
motion to remand, denied the Defendants' motions to dismiss without
prejudice, and stayed the action pending a ruling by the North
Carolina Court of Appeals in Joseph Fleming, et al. v. Cedar
Management Group, LLC, because the Fleming case would "likely have
a direct impact on this case." The Court lifted the stay after the
North Carolina Court of Appeals issued its decision in Fleming.
Thereafter, the Defendants filed the Motions to Dismiss.

                 A. North Carolina Transfer Fee
                 Covenant Prohibition Act Claim

The Defendants argue the Plaintiff's claim for violation of the
North Carolina Transfer Fee Covenant Prohibition Act should be
dismissed because (1) the statute prohibits transfer fee covenants,
not transfer fees; (2) the fees charged in this case are not
transfer fees within the meaning of the statute; and (3) the
transfer fees Defendants charged here are presumptively reasonable.
For purposes of the Motions, the Court need only address the second
issue, whether the fees here were "transfer fees" as defined by the
statute. Whether the fees the Defendants charged were transfer fees
under the statute is a matter of statutory interpretation.

Under the plain language of the statute, Judge Conrad notes that
payable describes the fee or charge, and the fee or charge is
"payable" when it gains the attribute that it is "to be paid."
Thus, the time at which the fee or charge is actually due or paid
is not relevant to when the fee or charge is payable. Here, the
fees gained the attribute of "to be paid" upon the preparation of
the statements of unpaid assessments, not upon the transfer of real
property.

Indeed, the documents attached to the Amended Complaint show that
an amount of money was owed to the Defendants for preparing the
statements before closing. In other words, the documents attached
to the Plaintiff's Complaint demonstrate that the fees became a sum
of money to be paid, or "payable," when the statements were
prepared, before the properties were transferred, Judge Conrad
states.

While the Plaintiff ultimately paid the fees at closing, that is
not relevant to when the fees became "payable," Judge Conrad
opines. Certainly, the Defendants could have required the Plaintiff
to pay the fees prior to closing because the fees were payable
before the transfer of real property. Therefore, under the plain
language of the statute, the fees at issue were payable at the time
the Defendants prepared the statements of unpaid assessments, not
"upon the transfer of real property." Similarly, the fees here were
not "payable for the right to make or accept such transfer."
Instead, as noted, the fees were to be paid for Defendants'
preparation of the statements of unpaid assessments. The fact that
certain third parties in some real estate transactions, such as
lenders and closing attorneys, might require these statements does
not make the fee for such statement payable "upon the transfer of
real property" or "for the right to make or accept such transfer,"
Judge Conrad holds.

This conclusion is consistent with a similar recent unpublished
opinion from the North Carolina Court of Appeals on this issue of
first impression, Fleming v. Cedar Management Group, LLC, 866
S.E.2d 919 (N.C. Ct. App. 2022) (table), Judge Conrad explains. In
Fleming, in connection with plaintiffs' sale of their home, their
HOA provided a statement of unpaid assessments certifying that
plaintiffs were current on HOA dues. The HOA charged the plaintiffs
a $395 certification fee "due and payable" to the HOA's property
management company. Thereafter, the plaintiffs brought a class
action suit against the property management company asserting a
claim for violation of the North Carolina Transfer Fee Covenant
Prohibition Act. The court rejected plaintiffs' argument that a
statement of unpaid assessments "is often a prerequisite to
obtaining title insurance of financing the purchase of real estate"
because neither of those instances "constitutes the transfer of an
interest in real property."

While Fleming is not binding on this Court, it does provide some
predictive value for the Court's application of North Carolina law,
Judge Conrad says. However, the Plaintiff argues the Court should
reach a different conclusion than the Fleming court. The Plaintiff
argues, among other things, that the fees were payable upon the
transfer of real property because the fees were paid at closing and
the statements indicated the fees were paid at closing. However,
the Court must consider the plain language of the statute, and this
argument puts "the cart before the horse" by raising exceptions
before demonstrating the fees were "transfer fees" at all under the
plain language of the statute. And, in any event, the reasoning in
Fleming is consistent with the Court's interpretation of the
statute.

Accordingly, Judge Conrad holds that the fees here are not
"transfer fees" as defined by the North Carolina Transfer Fee
Covenant Prohibition Act, and the Plaintiff's claim is dismissed.

                  B. North Carolina Unfair and
               Deceptive Trade Practices Act Claim

In North Carolina, to state a claim for violation of the UDTPA, "a
plaintiff must show: (i) that the defendant engaged in an unfair or
deceptive act or practice; (ii) the act or practice was in or
affecting commerce; and (iii) the act proximately caused injury to
the plaintiff," Tasz, Inc. v. Indus. Thermo Polymers, Ltd., 80
F.Supp.3d 671, 685 (W.D.N.C. 2015).

The Plaintiff alleges the Defendants acts or practices were unfair
or deceptive because they charged unreasonable fees for the
statements of unpaid assessments, "under penalty of a cancelled or
delayed closing," and as a result the Plaintiff made gross
overpayment for services rendered by the Defendants. She alleges
the fees were unreasonable for various reasons including, that the
fees were excessive, the fees bore no relation to the actual cost
of providing the statements, the Defendants had no legal basis to
claim she owed the fees, the Defendants both charged her a fee for
the statements, and that the fees were used to fund post-sale
services that exclusively benefitted the buyer.

As an initial matter, Judge Conrad says, the Plaintiff's reliance
on the North Carolina Transfer Fee Covenant Prohibition Act to
support her UDTPA claim fails since the Court concludes the fees
are not "transfer fees" under the statute. Next, in North Carolina
excessive fees alone do not support a UDTPA claim. Particularly
here, where the fees are less than those in Fleming where the court
dismissed the UDTPA claim on an excessive fee theory, and where the
fees are within the reasonableness range set by the recently
amended North Carolina statute.

Next, Judge Conrad finds the Plaintiff's Complaint does not
sufficiently allege how the remaining acts or practices were unfair
or deceptive. The Plaintiff alleges it was unfair or deceptive for
each Defendant to charge her a fee for the statements; however,
each Defendant provided a different service or value to her in
order to obtain the statements. Further, it is not clear why it was
unfair or deceptive for the Defendants to use the fees or profits
to provide benefit to the buyer, except to assert that the fees
were excessive and resulted in too much profit to the Defendants.

In addition, Judge Conrad notes, the Plaintiff's alleged injury,
that she made gross overpayment for services rendered by the
Defendants supports the conclusion that the claim is really one
based on excessive fees. Therefore, the Plaintiff's Amended
Complaint fails to state a claim for violation of the UDTPA.

                       C. Remaining Claims

The Plaintiff's remaining claims rest on her theory that the North
Carolina Transfer Fee Covenant Prohibition Act prohibited the fees
the Defendants charged for preparing the statements of unpaid
assessments, or that the fees were otherwise unlawful. First, the
Plaintiff's negligent misrepresentation claim alleges the
Defendants made material misrepresentations to her in closing
documents that the fees charged for preparation of the statements
of unpaid assessments were lawfully owed and due.

Next, the Plaintiff alleges the Defendants violated the NCDCA by
assessing and collecting fees for statements of unpaid assessments
without a legal justification. Additionally, the Plaintiff's unjust
enrichment claim alleges it was unjust for the Defendants to retain
the alleged transfer fees. The Plaintiff's declaratory judgment
claim is also based on her theory that the Defendants violated the
North Carolina Transfer Fee Covenant Prohibition Act.

However, Judge Conrad finds the Plaintiff's Complaint does not
demonstrate that the fees were not actually lawfully owed and due.
For these reasons, the Plaintiff's remaining claims are dismissed.

                           Conclusion

Judge Conrad, therefore, ordered that:

   1. Defendant Nextlevel Association Solutions, Inc.,
      d/b/a HomeWiseDocs.com's Motion to Dismiss Plaintiff's
      Amended Complaint is granted; and

   2. Defendant William Douglas Management, Inc.'s Motion to
      Dismiss Amended Complaint is granted.

The Clerk of Court is directed to close this case.

A full-text copy of the Court's Order dated Sept. 29, 2022, is
available at https://tinyurl.com/2vxfefn8 from Leagle.com.


OREGON: Loses Bid for Interlocutory Appeal in Wyatt B. v. Brown
---------------------------------------------------------------
Judge Ann Aiken of the U.S. District Court for the District of
Oregon, Eugene Division, denies the Defendants' Motion to Certify
Order for Interlocutory Appeal in the lawsuit entitled WYATT B., et
al., Plaintiffs v. KATE BROWN, et al., Defendants, Case No.
6:19-cv-00556-AA (D. Or.).

In this class action, the Defendants request certification to
pursue interlocutory appeal of the Court's Order denying the
Defendants' motion to dismiss. The Defendants argue that the
Court's ruling concerning the application of abstention principles
consistent with O'Shea v. Littleton, 414 U.S. 488 (1974) warrant
interlocutory appeal.

A "question of law" is "controlling" under Section 1292(b) if
resolving it on appeal could materially affect the outcome of
litigation in the district court. The Defendants assert that this
case involves a controlling question of law--namely, whether the
Court should abstain from consideration of the claims presented by
the Plaintiffs based on O'Shea principles.

As courts within this District have noted in ruling on motions to
certify for interlocutory appeal, the Ninth Circuit restricts its
review to pure questions of law, not mixed questions of law and
fact, because pure questions of law are ones that can be decided
quickly and cleanly without having to study the record, Judge Aiken
states.

The Plaintiffs contend that the question for interlocutory appeal,
as presented by the Defendants, implicates a mixed question of law
or fact, precluding interlocutory review. However, in Steering
Committee v. United States, 6 F.3d 572 (9th Cir. 1993), the Ninth
Circuit held that "the presence of a pure legal question permits
the court to resolve all questions material to the order," and so
the exercise of interlocutory appeal was proper when "a pure legal
question is identifiable" in the case, Judge Aiken opines.

Here, such a pure legal question is identifiable in whether O'Shea
abstention should apply. The Court, therefore, concludes that the
Defendants have shown the presence of a controlling question of
law.

The Defendants assert that there is a division of opinion among
circuits about the application of O'Shea abstention and that the
Ninth Circuit has "inconsistently" analyzed and resolved cases
related to the subject. In particular, they assert that there is an
inconsistency between the what they characterize as a "bright line
rule" adopted by the Ninth Circuit in Courthouse News Serv. v.
Planet, 750 F.3d 776 (9th Cir. 2014) and the subsequent decision in
Miles v. Wesley, 801 F.3d 1060 (9th Cir. 2015).

The Court notes that Miles and Courthouse News Serv. are easily
harmonized and Miles in fact repeatedly cites to Courthouse News
Serv. with approval. The nature of the relief sought, as discussed
in Courthouse News Serv., is one of the facts upon which the
outcome of the O'Shea analysis would be "heavily" dependent, as
noted in Miles. This includes the potential for future litigation
related to potential relief and the nature of that potential future
litigation. The Court concludes that the Ninth Circuit has provided
clear and consistent guidance on the question of O'Shea
abstention.

The Defendants clearly disagree with the Court's conclusion in
denying their motion to dismiss, but that disagreement does not
justify the extraordinary step of certifying the Court's decision
for interlocutory appeal, Judge Aiken holds.

Because the Defendants have failed to meet their burden of
establishing substantial grounds for difference of opinion, the
Court need not reach the question of whether granting certification
would materially advance termination of the litigation.

In sum, the Court concludes that certification for interlocutory
appeal is not warranted and the Defendants' Motion is denied.

For the reasons set forth, the Defendants' Motion to Certify Order
for Interlocutory Appeal is denied.

A full-text copy of the Court's Opinion & Order dated Sept. 29,
2022, is available at https://tinyurl.com/2p86yccc from
Leagle.com.


PETE AND GERRY'S: Bursor & Fisher Named Interim Counsel in Mogull
-----------------------------------------------------------------
In the case, CONSTANCE MOGULL, individually and on behalf of all
others similarly situated, Plaintiff v. PETE AND GERRY'S ORGANICS,
LLC, Defendant, Case No. 21 CV 3521 (VB) (S.D.N.Y.), Judge Vincent
L. Briccetti of the U.S. District Court for the Southern District
of New York grants the Plaintiff's motion to appoint her counsel,
Bursor & Fisher, P.A., as the interim class counsel pursuant to
Rule 23(g)(3).

Judge Briccetti explains that the Court may designate interim
counsel to act on behalf of a putative class before determining
whether to certify the action as a class action. The decision to
appoint interim class counsel is committed to the district judge's
discretion. If the Court determines it is necessary to appoint
interim class counsel, it must then determine whether the proposed
interim counsel will fairly and adequately represent the putative
class's interests. To do so, courts generally look to the same
factors used in determining the adequacy of class counsel under
Rule 23(g)(1)(A)."

Accordingly, courts consider: (i) the work counsel has done in
identifying or investigating potential claims in the action; (ii)
the counsel's experience in handling class actions, other complex
litigation, and the types of claims asserted in the action; (iii)
the counsel's knowledge of the applicable law; and (iv) the
resources that the counsel will commit to representing the class.

Judge Briccetti finds appointing interim class counsel is necessary
at this time and the Plaintiff's counsel will fairly and adequately
represent the putative class.

The Defendant "neither supports nor opposes the motion." However,
it contends appointing interim class counsel at this time is
premature.

Judge Briccetti disagrees. He opines that the Plaintiff has
identified a substantially similar class action filed outside this
District, in which the plaintiff is represented by different
counsel, citing Dean v. Pete & Gerry's Organics, LLC, No. 22-cv-806
(CEM) (M.D. Fla. filed Apr. 27, 2022) (dismissed and re-filed on
August 2, 2022, No. 22-cv-1361 (WWB) (M.D. Fla.)). Moreover, as the
Defendant acknowledges, "consolidated class counsel would
facilitate discovery, negotiation, and other interactions with the
class," which benefits the putative class as well as defendant.
Accordingly, Judge Briccetti will appoint interim class counsel.

Judge Briccetti also finds that Bursor & Fisher will fairly and
adequately represent the interests of the putative class as interim
class counsel. Bursor & Fisher has experience in class actions as
well as knowledge of the applicable law in the case. It has 22
attorneys and additional support staff, and therefore has
sufficient resources and personnel to represent the proposed class.
Accordingly, Judge Briccetti finds Bursor & Fisher satisfies the
factors under Rule 23(g)(1)(A) and appoints it as the interim class
counsel.

In light of the foregoing, Judge Briccetti grants the motion to
appoint Bursor & Fisher as the interim class counsel.

The Clerk is instructed to terminate the motion.

A full-text copy of the Court's Sept. 30, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/yudjv6d7 from
Leagle.com.


PFIZER INC: Bids to Appeal Orders in Lipitor Antitrust Suit Denied
------------------------------------------------------------------
Judge Peter G. Sheridan of the U.S. District Court for the District
of New Jersey denies the Plaintiff's two separate Motions to Appeal
the Magistrate Judge's Orders in the lawsuit titled IN RE LIPITOR
ANTITRUST LITIGATION, Case No. 3:12-cv-2389-PGS-DEA (D.N.J.).

The case is before the Court on appeal of discovery orders issued
by Hon. Douglas E. Arpert, U.S.M.J., on June 23, 2022, and Aug. 15,
2022. The Court declines oral argument pursuant to Local Rule
78.1.

On March 2, 2020, the parties were ordered to participate in
mediation. On March 12, 2020, the case was referred to the
Honorable Faith Hochberg, U.S.D.J. (Ret.) for mediation and
discovery was stayed. The parties participated in a two-year
mediation process, during which five major issues were briefed and
argued, including class certification and causation. Discovery
remained stayed as the Mediator determined the parties had
sufficient information to mediate substantively and completely.

During a Dec. 7, 2021 status conference, the Court lifted the stay
and directed the parties to continue discovery pursuant to the
specific issues of causation and class certification and other
issues as it would benefit the mediation process to resume a
targeted approach in an effort to bring motions to the Court's
attention at a faster pace and narrow the scope of issues
remaining. The matter was directed to Judge Arpert to use his
discretion to enter a schedule order.

Beginning in January of 2022, parties submitted their proposals
regarding a targeted discovery approach, with the Defendants
suggesting the remaining issues are causation and class
certification. The Plaintiffs have maintained a position against
limiting discovery.

Having received and considered the parties proposals, Judge Arpert
entered the June 23, 2022 Order. The Order at issue limited
discovery to issues of causation and class certification; set dates
related to discovery on the issue of causation (service dates for
expert disclosures and reports by all parties); set dates related
to discovery on the issue of class certification (deposition
deadlines as well as service dates for expert disclosures and
reports by all parties); and filing deadlines for motions for
summary judgment and class certification.

The Aug. 15, 2022 Order addressed a request raised by the proposed
class of Direct Purchaser Plaintiffs, the proposed class of End
Payor Plaintiffs, and the Retailer Plaintiffs to extend the
deadline for discovery by five (5) months on the issue of causation
in light of voluminous discovery received from Defendant Ranbaxy.
Judge Arpert considered the request and opposition by the
Defendants, and granted a ninety (90)-day extension of the
deadlines set forth in the June 23, 2022 Order.

On Sept. 1, 2022, the Direct Purchaser Class Plaintiffs and
Retailer Plaintiffs ("Plaintiffs") submitted an appeal of the June
23, 2022 Scheduling Order. The Plaintiffs argue the limitation on
discovery deprives them of their right to develop the record. They
present the deadlines to complete discovery (all of which were
extended by 90-days per the Aug. 15, 2022 order) provides
insufficient time to allow time for further inquiry into: (a)
Ranbaxy (beyond FDA approval), (b) causation or (c) class
certification; denies ability to respond to dispositive motions;
leaves their experts unprepared (arguing completion of expert
discovery is crucial to class certification motions and experts
rely on causation theories and evidence) and creates further
delays. The Plaintiffs request discovery to resume similarly to the
previously entered Further Amended Scheduling Orders at ECF Nos.
899 and 902, with an extension of the timeframes.

On Sept. 2, 2022, the End-Payor Plaintiffs ("EPP") submitted an
appeal of the Aug. 15, 2022 Order joining the Plaintiffs' request
to lift the discovery stay but writing separately to request the
Court sever and stay EPPs' class certification-related proceedings.
EPP argues the request for class certification will likely be
impacted by the pending appeal before the Third Circuit, In re
Niaspan Antitrust Litigation, No. 21-2895, and seek to extend
discovery to account for time for the decision to be rendered.

The Court notes the appeals to Judge Arpert's Orders dated June 23,
2022, and Aug. 15, 2022, were filed beyond 14 days after the
electronic service of the Orders and can be denied as untimely.
However, in light of the magnitude of this litigation denial is not
a reasonable course, Judge Sheridan says. The Court, in its
discretion, reviews the appeals as follows.

The Plaintiffs' primary argument regarding prejudice related to the
June 23, 2022 Order presents a lack of time and restraint
(narrowing to causation and class certification) which impairs
their ability to further develop the record and prepare to address
dispositive motions. They argue establishing their "no payment
settlement" causation with expert opinions is unlikely in eight
weeks. Further, they argue the Defendants have not produced
complete transaction data or documents related to class
certification.

Judge Sheridan finds the Plaintiffs have not established that
obtaining the necessary discovery is impossible. He opines that it
is within Judge Arpert's discretion to manage discovery. Judge
Arpert has been the Magistrate Judge managing this case since 2012
and has, thus, developed significant knowledge to make proper
deadlines in deference to the needs of the parties and judicial
economy. Judge Arpert has broad discretion to manage discovery
issues related to this matter.

Additionally, Judge Sheridan notes, the Defendants stipulate in
their opposition papers that discovery sought by the Plaintiffs,
relevant to class certification and regulatory causation, has been
produced. Ranbaxy produced over 90,000 documents; Pfizer produced
1.7 million documents. Further, the Defendants' maintain document
productions on regulatory-based causation issues were complete on
July 22, 2022.

This indicates the Plaintiffs have already had significant time to
review discovery and narrow their approach for any further fact and
expert discovery in addition to the nearly three months since the
June 23, 2022 Order, Judge Sheridan points out.

As to the Aug. 15, 2022 Order, the EPP argues class action
discovery cannot proceed as a pending case may impact discovery to
be sought to satisfy the ascertainability standard and would, thus,
be inefficient to proceed. EPP is, therefore, asking for a
discovery stay pursuant to its forecast that the appeal will render
an outcome that will substantially alter the class certification
standard and impact discovery.

Judge Sheridan notes that EPP is asking to rely on their prediction
that they will need to change their discovery plan stemming from a
pending appeal. He holds that such a stay will create further
delays impacting the Defendants and judicial economy. Judge
Sheridan, therefore, does not consider this a sufficient claim for
hardship or inequity. Sure a change in law may require further
discovery in certain instances. Such a request is more appropriate
at a time where the scope and limits can be determined.

Judge Sheridan ordered that the Plaintiff's Motion to Appeal the
Magistrate Judge's Orders (ECF No. 1114) is denied.

He also ordered that the Plaintiff's Motion to Appeal the
Magistrate Judge's Orders (ECF No. 1115) is denied.

A full-text copy of the Court's Memorandum and Order dated Sept.
29, 2022, is available at https://tinyurl.com/muaehhes from
Leagle.com.


POLARIS INDUSTRIES: 9th Cir. Flips Summary Judgment in Guzman Suit
------------------------------------------------------------------
In the lawsuit captioned PAUL GUZMAN and JEREMY ALBRIGHT,
individually and on behalf of all others similarly situated,
Plaintiffs-Appellants v. POLARIS INDUSTRIES, INC., a Delaware
corporation, et al., Defendants-Appellees, Case No. 21-55520 (9th
Cir.), the United States Court of Appeals for the Ninth Circuit
reverses the district court's entry of summary judgment in favor of
Polaris.

Guzman appeals the district court's grant of summary judgment in
favor of Polaris Industries. Polaris sells off-road vehicles that
have roll cages, or rollover protective structures ("ROPS"). Guzman
and Albright (whose claims are the subject of a separate opinion
filed concurrently with this memorandum disposition) filed a class
action alleging that the labels on their Polaris vehicles, which
state that the ROPS complied with OSHA standards, are false and
misleading and that Guzman, Albright, and the putative class
members relied on the false labels when purchasing the vehicles.

The Plaintiffs brought their action pursuant to: (1) the California
Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code Section 1750;
(2) the California Unfair Competition Law ("UCL"); and (3) the
California False Advertising Law ("FAL").

In its order granting summary judgment in favor of Polaris and
against Guzman, the district court concluded that Guzman had failed
to show reliance on the representation at issue and, thus, could
not maintain his claims. It relied heavily on Guzman's deposition
testimony that he could only recall seeing the words "OSHA" and
"Polaris" on the ROPS label but that because of his experience with
tools used in construction work, he understood anything that was
"OSHA approved" to be safe and reliable. The court concluded that
Guzman admitted he did not fully read the sticker and, thus, could
not have relied on the specific statement that the ROPS itself met
an OSHA standard.

In order to succeed on his claims, Guzman must establish, inter
alia, that he actually relied on the alleged misrepresentation that
the ROPS met the OSHA standard.

While Guzman did testify that he recalled reading only the words
"OSHA" and "Polaris" on the label, he also testified that he saw
the label on the ROPS, "checked if it was OSHA-approved for like
the cage," and that he understood the language on the label meant
that the ROPS met federal safety standards, was safe to use, and
would protect the occupants in the event of an accident.

The Court of Appeals concludes that, viewing all evidence and
inferences in the light most favorable to Guzman, a reasonable jury
could find that he relied on the ROPS label. Thus, it will reverse
the district court's order of summary judgment against him.

The Court of Appeals concludes that, under these specific facts, a
reasonable jury could find that Guzman relied on the label's
representation that the ROPS met an OSHA standard.

As a result, the Court of Appeals reverses the district court's
entry of summary judgment in favor of Polaris and against Guzman
based on its finding that Guzman did not adequately show reliance
on the ROPS label.

Reversed and remanded.

A full-text copy of the Court's Memorandum dated Sept. 29, 2022, is
available at https://tinyurl.com/d4bmptzs from Leagle.com.


POLARIS INDUSTRIES: Judgment vs. Albright in Guzman Suit Flipped
----------------------------------------------------------------
In the lawsuit styled PAUL GUZMAN; JEREMY ALBRIGHT, individually on
behalf of themselves and all others similarly situated,
Plaintiffs-Appellants v. POLARIS INDUSTRIES INC., a Delaware
corporation; POLARIS SALES, INC., a Minnesota corporation; POLARIS
INDUSTRIES INC., a Minnesota corporation; DOES, 1 through 10,
inclusive, Defendants-Appellees, Case No. 21-55520 (9th Cir.), the
United States Court of Appeals for the Ninth Circuit reverses the
summary judgment against Plaintiff Albright and remands his action
with instructions.

The Honorable Eduardo C. Robreno wrote the Opinion of the Court.
Judge Robreno, United States District Judge for the Eastern
District of Pennsylvania, was sitting by designation.

Albright appeals the district court's grant of summary judgment in
favor of Polaris Industries. Polaris sells off-road vehicles that
have roll cages, or rollover protective structures ("ROPS").
Albright and Guzman (whose claims are the subject of a separate
memorandum disposition filed concurrently with this opinion) filed
a class action alleging that the labels on their Polaris vehicles,
which state that the ROPS complied with Occupational Safety and
Health Administration ("OSHA") standards, are false and misleading
and that Albright, Guzman and the putative class members relied on
the false labels when purchasing the vehicles. Albright brought his
action pursuant to: (1) the California Consumers Legal Remedies Act
("CLRA"); (2) the California Unfair Competition Law ("UCL"); and
(3) the California False Advertising Law ("FAL").

In February 2016, Albright purchased a Polaris vehicle that had a
label on the roll cage that read "Polaris" and "this ROPS structure
meets OSHA requirements of 29 CFR Section 1928.53." Albright
alleges that he saw and read the ROPS label prior to purchase and
understood the label to mean that the ROPS met OSHA safety
standards. He alleges that he would not have purchased the vehicle
if the label had not been present.

Albright filed his complaint on Aug. 8, 2019, alleging violations
of the CLRA, UCL, and FAL. He contends that the ROPS label is false
and misleading because Polaris tests the vehicles in a manner
inconsistent with the Section 1928.53 standard.

On Feb. 13, 2020, the district court dismissed Albright's CLRA and
FAL claims as time-barred, which Albright does not challenge on
appeal, leaving Albright with only his UCL claim. Then, on May 12,
2021, the district court granted summary judgment in favor of
Polaris and entered judgment on Albright's remaining UCL claim.

In its summary judgment order, the district court relied on Sonner
v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), and
concluded that federal courts must apply equitable principles
derived from federal common law to claims for equitable restitution
under the UCL and the CLRA. It continued that, under Sonner,
plaintiffs can seek equitable remedies only if they lack an
adequate legal remedy. Therefore, Albright could maintain his
equitable UCL claim only if his CLRA claim was not an adequate
remedy.

The district court concluded, however, that Albright still had an
adequate legal remedy under the CLRA, even though his CLRA claim
for damages had been dismissed as time-barred. It explained that "a
plaintiff's failure to timely comply with the requirements to
obtain a remedy at law does not make the remedy inadequate, so as
to require the district court to exercise its equitable
jurisdiction" (citing United States v. Elias, 921 F.2d 870, 874
(9th Cir. 1990)). As a result, the court granted summary judgment
in favor of Polaris on Albright's UCL claim.

Albright asserts that, by granting summary judgment in favor of
Polaris, the district court disposed of his UCL claim with
prejudice. He timely appealed the district court's summary judgment
order arguing that: (1) the district court erred in finding that
his equitable UCL claim was barred because he had an adequate
remedy at law through his previously dismissed CLRA claim; and (2)
if he did have an adequate legal remedy, the district court erred
by disposing of his UCL claim with prejudice, which could preclude
him from refiling the claim in state court.

            A. Albright Had an Adequate Remedy at Law

The Court of Appeals agrees with the district court that Albright
could not bring his equitable UCL claim in federal court because he
had an adequate legal remedy in his time-barred CLRA claim.

In Sonner v. Premier Nutrition Corp., the plaintiff initially
brought claims for equitable relief under the UCL and CLRA and for
damages under the CLRA, but later strategically dismissed her CLRA
damages claim to avoid a jury trial. The Court of Appeals concluded
that federal courts must apply equitable principles derived from
federal common law to claims for equitable restitution under
California's UCL and CLRA, including the principle precluding
courts from awarding equitable relief when an adequate legal remedy
exists. As a result, having concluded that the plaintiff had an
adequate legal remedy in the CLRA, the Court of Appeals affirmed
the dismissal of the plaintiff's equitable UCL and CLRA claims.

Under those federal equitable principles, the Court of Appeals has
held that equitable relief must be withheld when an equivalent
legal claim would have been available but for a time bar. In United
States v. Elias, it affirmed the district court's decision not to
exercise equitable jurisdiction where the plaintiff failed to
timely follow the procedures to obtain a legal remedy in connection
with his claim for a return of seized property. It explained that a
failure to comply with a remedy at law does not make it inadequate
so as to require the district court to exercise its equitable
jurisdiction.

Reading Sonner and Elias together, the Court of Appeals concludes
that Albright had an adequate remedy at law through his CLRA claim
for damages, even though he could no longer pursue it, and that the
district court was therefore required to dismiss his equitable UCL
claim. Under Sonner, Albright could not pursue his equitable UCL
claim in federal court while his CLRA claim was timely. Albright's
failure to have timely pursued his CLRA claim cannot confer
equitable jurisdiction on a federal court to entertain his UCL
claim.

In other words, Judge Robreno notes, Albright cannot have neglected
his opportunity to pursue his CLRA damages claim, which was an
adequate remedy at law, and then be rewarded for that neglect with
the opportunity to pursue his equitable UCL claim in federal
court.

Judge Robreno says that it may be that this case would have come
out differently had it been brought in California state court. The
California Supreme Court has held that the UCL's four-year statute
of limitations applies even when an equivalent claim for damages
would have been available under a state law with a shorter statute
of limitations had the plaintiff brought the claim earlier, citing
Cortez v. Purolator Air Filtration Prods. Co., 999 P.2d 706, 716
(Cal. 2000). But Sonner requires that the Court of Appeals consider
federal equitable principles even when doing so causes the Court's
disposition of the case to diverge from state law.

The Court of Appeals rejects Albright's attempt to distinguish
Sonner on the ground that the plaintiff in that case was attempting
to avoid a jury trial by voluntarily dismissing her CLRA damages
claim, while Albright's claim was dismissed involuntarily and
involved no attempts at gamesmanship. Sonner's holding applies to
equitable UCL claims when there is a viable CLRA damages claim,
regardless of whether the plaintiff has tried to avoid the bar to
equitable jurisdiction through gamesmanship.

Judge Robreno explains that nothing in Sonner's reasoning suggested
that its holding was limited to cases in which a party had
voluntarily dismissed a damages claim to avoid a jury trial.
Indeed, Sonner relies on Guaranty Trust Co. of New York v. York, in
which the Supreme Court noted the generally applicable rule that
equitable relief is not available in federal court in a diversity
action unless a plain, adequate and complete remedy at law is
wanting. As noted by Polaris, the facts in York did not reveal any
ulterior motives by the party against which the equitable principle
was applied.

The Court of Appeals concludes that, because Albright had an
adequate legal remedy in his time-barred CLRA claim, the district
court lacked equitable jurisdiction to hear Albright's UCL claim.
Therefore, the Court of Appeals affirms the district court's order
to that effect. However, the Court of Appeals must still reverse
the entry of summary judgment against Albright because no decision
was reached on the merits of the claim. Because the district court
lacked equitable jurisdiction, which it recognized, it should have
denied Polaris' motion for summary judgment and dismissed
Albright's UCL claim without prejudice for lack of equitable
jurisdiction.

           B. The District Court Should Have Dismissed
           Albright's Claim Without Prejudice Because
                It Lacked Equitable Jurisdiction

Mr. Albright argues that, if he did have an adequate remedy at law
that barred his UCL claim, the district court erred in disposing of
his UCL claim with prejudice by entering summary judgment in favor
of Polaris. Albright acknowledges that the district court concluded
that, pursuant to federal common law, it lacked equitable
jurisdiction to hear his UCL claim because he had an adequate
remedy at law. Albright argues, however, that a jurisdictional
dismissal is necessarily without prejudice because the court does
not reach the merits of the claims.

On this issue, the Court of Appeals agrees with Albright.

As argued by Polaris, the district court had subject matter
jurisdiction. However, Judge Robreno opines that that is not
dispositive of whether the court could exercise equitable
jurisdiction over Albright's UCL claim. As discussed, the district
court lacked equitable jurisdiction because Albright had an
adequate remedy at law in his time-barred CLRA claim.

Because the district court lacked equitable jurisdiction over
Albright's UCL claim, it could not, and did not, make a merits
determination as to liability and should not have granted summary
judgment in favor of Polaris on this claim, Judge Robreno holds. As
is the case when federal courts decline to exercise jurisdiction
under abstention principles or the doctrine of forum non
conveniens, a federal court that dismisses a claim for lack of
equitable jurisdiction necessarily declines to assume the
jurisdiction and decide the cause. Thus, Judge Robreno states that
a federal court's pre-merits determination to withhold relief is
binding on other federal courts, but not on courts outside the
federal system that might properly exercise their own jurisdiction
over the claim.

In accordance with this general rule, Judge Robreno holds that the
district court should have dismissed Albright's UCL claim without
prejudice to refiling the same claim in state court. He explains
that the import of this rule is particularly apparent in this case
because, for the reasons noted, a California court might allow
Albright to pursue his UCL claim.

The possibility that federal and state courts would reach different
results on the same claim is itself a consequence of Sonner's rule
that federal courts sitting in diversity may exercise equitable
jurisdiction only to the extent federal equitable principles allow
them to do so, Judge Robreno says. But where federal law bars it
from considering the merits of state-law claims, the Court of
Appeals also lacks authority to prevent state courts from doing
so.

                           Conclusion

The district court correctly concluded that Albright had an
adequate legal remedy in his CLRA claim which, pursuant to the
federal inadequate-remedy-at-law principle, meant that the court
lacked equitable jurisdiction to entertain Albright's UCL claim.
However, the district court erred in granting summary judgment in
favor of Polaris on that claim, which could prevent Albright from
attempting to raise his UCL claim in state court. Instead, the
district court should have denied summary judgment on the UCL claim
and dismissed it without prejudice for lack of equitable
jurisdiction.

The grant of summary judgment in favor of Polaris is reversed and
the case is remanded with instructions to dismiss Albright's UCL
claim without prejudice.

A full-text copy of the Court's Opinion dated Sept. 29, 2022, is
available at https://tinyurl.com/mudun9bz from Leagle.com.

Adrian R. Bacon -- abacon@toddflaw.com -- Todd M. Friedman --
tfriedman@toddflaw.com -- and Thomas E. Wheeler --
twheeler@toddflaw.com -- Law Offices of Todd M. Friedman, in
Woodland Hills, California; John P. Kristensen -- kristensen@cz.law
-- Carpenter & Zuckerman, in Beverly Hills, California, for the
Plaintiffs-Appellants.

Richard C. Godfrey -- richard.godfrey@kirkland.com -- Andrew
Bloomer -- andrew.bloomer@kirkland.com -- and Paul Collier --
paul.collier@kirkland.com -- Kirkland & Ellis LLP, in Chicago,
Illinois; David A. Klein -- david.klein@kirkland.com -- Kirkland &
Ellis LLP, in Los Angeles, California, for the
Defendants-Appellees.


PREMIER NUTRITION: Denial of Injunction in Sonner Suit Affirmed
---------------------------------------------------------------
In the lawsuit entitled KATHLEEN SONNER, on behalf of herself and
all others similarly situated, Plaintiff-Appellee v. PREMIER
NUTRITION CORPORATION, FKA Joint Juice, Inc., Defendant-Appellant,
Case No. 21-15526 (9th Cir.), the United States Court of Appeals
for the Ninth Circuit affirms district court's denial of the
Defendant's request for permanent injunction.

In Sonner v. Premier Nutrition Corp. (Sonner I), 971 F.3d 834 (9th
Cir. 2020), the Court of Appeals affirmed the district court's
dismissal, without leave to amend, of Plaintiff-Appellee Kathleen
Sonner's class-action complaint. It held that federal courts
sitting in diversity must apply federal equitable principles to
claims for equitable restitution brought under California law and
that, under such principles, dismissal was appropriate because
Sonner could not show that she lacked an adequate remedy at law.

Immediately after the Sonner I opinion was issued and her federal
case was terminated, Sonner filed a virtually identical complaint
in California state court. Defendant-Appellant Premier Nutrition
responded to Sonner's new complaint by returning to the district
court and seeking a permanent injunction against the state court
action under the "relitigation exception" of the Anti-Injunction
Act, 28 U.S.C. Section 2283. The district court denied the
injunction, expressing uncertainty about whether the Court of
Appeals' holding in Sonner I barred relitigation of Sonner's claims
under principles of res judicata, also known as claim preclusion.

The Court of Appeals is now asked to determine the preclusive
effect of its opinion in Sonner I, and to decide whether the
district court abused its discretion in denying the permanent
injunction. Because the district court did not abuse its discretion
in denying the injunction regardless of Sonner I's preclusive
effect, the Court of Appeals decides only the second of these
issues, and it affirms.

As the Court of Appeals' opinion in Sonner I explains, this case
has a long history. The original complaint was filed in 2013.
Sonner and a putative class sought relief under California's Unfair
Competition Law ("UCL") and Consumers Legal Remedies Act ("CLRA")
for Premier's alleged false advertising of its "Joint Juice"
product. Premier markets Joint Juice as supporting healthy joints;
Sonner alleges it fails to provide the advertised benefits.

In 2017, shortly before trial was scheduled to begin, and after
over four years of discovery and extensive motions
practice--including the certification of a class and Sonner's
prevailing on Premier's motion for summary judgment--Sonner sought
leave to file a second amended complaint. Her then-operative
complaint requested injunctive relief, restitution, and damages,
and demanded a jury trial. But Sonner sought leave to file an
amended complaint dropping her damages claim so that she could
proceed to a bench trial rather than a jury trial.

Premier opposed the motion for leave to amend, arguing that
amendment would be futile because the proposed second amended
complaint, with no damages claim, would be subject to dismissal for
failure to allege the lack of an adequate remedy at law. During a
hearing on the issue, the district court explained that Sonner was
taking a "chance" in amending the complaint, warning that, if
Premier filed a motion to dismiss, it would be "open season" on the
amended complaint in light of the inadequate-remedy-at-law issue.
Sonner's counsel responded that he understood that his client was
"taking that chance."

The district court then warned Sonner "that if it granted the
motion and she dropped the damages claim, 'we are never going to
hear again anything about a damage claim under the CLRA'" and
advised Sonner not to 'put a lot of money' on a future motion to
amend to re-allege the damages claim. Sonner's counsel responded
that he completely agreed with the district court and that he
understood that Sonner would maybe not be granted further leave to
amend to put back in the CLRA damages claim. The district court
granted leave to file the second amended complaint.

Ms. Sonner filed the second amended complaint and, unsurprisingly,
Premier moved to dismiss under Federal Rule of Civil Procedure
12(b)(6), which provides for dismissal for "failure to state a
claim upon which relief can be granted." Consistent with its
admonitions, the district court granted the motion to dismiss,
concluding that California law required Sonner to show that her
remedy at law was inadequate, and she had not done so.

During a hearing on the motion to dismiss, the district court
explained that, given its prior warnings, it would not grant leave
to amend the complaint to re-allege the damages claim. The district
court added that allowing a further amendment to cure the
inadequate-remedy-at-law defect would amount to "total prejudice to
the court system," "an abuse of the court system," and would be
"totally unfair."

On appeal, the Court of Appeals affirmed the district court's Rule
12(b)(6) dismissal (Sonner I, 971 F.3d at 839, 844). Reviewing the
dismissal de novo, the Court of Appeals concluded that federal
common law, not California law, governed whether dismissal was
proper. It further held that federal common law required Sonner to
establish the lack of an adequate remedy at law before she could
secure equitable restitution in federal court for past harm under
the California causes of action alleged in her complaint.

In reaching this result, the Court of Appeals characterized the
choice-of-law issue as a "threshold jurisdictional question" under
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). But it did not
indicate that Sonner's failure to plead an inadequate remedy at law
deprived the district court of jurisdiction over her complaint;
instead it affirmed that "the district court did not err in
dismissing Sonner's claims" under Rule 12(b)(6).

Reviewing the district court's denial of leave to amend to
re-allege a damages claim, the Court of Appeals concluded that the
district court did not abuse its discretion given Sonner's
strategic choice to amend the complaint on the eve of trial and the
district court's explicit warnings that further leave would not be
granted if she dropped her damages claim. Accordingly, it affirmed
the district court's Rule 12(b)(6) dismissal of Sonner's complaint,
with prejudice.

One day after the mandate in Sonner I issued, Sonner, on behalf of
a putative class, filed a complaint asserting the same claims in a
California trial court.

Premier then filed a motion for a permanent injunction in the
district court under the All Writs Act, 28 U.S.C. Section 1651, and
the "relitigation exception" to the Anti-Injunction Act, seeking to
enjoin Sonner's state-court proceedings on the theory that res
judicata barred relitigation of her claims. After full briefing and
a hearing, the district court denied the motion.

The district court considered whether to grant an injunction to
prevent relitigation of Sonner's claims in state court under res
judicata principles. It observed that there was no dispute about
the existence of two of the three elements of res judicata--an
identity of claims and privity of parties--because Sonner's state
court complaint was virtually identical to her prior complaint and
the parties were the same. The court, therefore, focused on the
final element--"whether there was a final judgment on the
merits"--and determined that the answer remained unclear. It
observed that although it dismissed Sonner I under Rule 12(b)(6),
the Court of Appeals' opinion affirming that dismissal may not have
been a resolution "on the merits," noting the Court of Appeals'
single use of the phrase "threshold jurisdictional question."

As the district court described it, the parties' dispute over the
res judicata effect of Sonner I centered on whether the opinion
"used the word 'jurisdictional' in its doctrinal sense or as an
adjective describing its choice among various jurisdictions' laws."
And even though the district court concluded that the Sonner I
opinion seemed to use 'jurisdictional' only in the descriptive
sense, it nonetheless equivocated and noted that "the decision's
legacy may be jurisdictional in nature." The district court
ultimately decided that it could not resolve "these open questions"
and, in light of "the sensitive nature of interfering with an
ongoing state action," denied the injunction.

Circuit Judge Bridget S. Bade, writing for the Panel, opines that
in doing so, the district court correctly recognized that it "is
usually the bailiwick of the second court" to determine the
preclusive effect of a prior judgment, and that when deciding
whether an injunction should issue under the Anti-Injunction Act,
every benefit of the doubt goes toward the state court determining
whether a subsequent action is precluded. Sonner's state court
action remains pending in Alameda County Superior Court and has
been stayed pending of the outcome of this appeal.

To start, and to dispel any confusion, Judge Bade states that there
is no doubt that the Court of Appeals' dismissal was not for lack
of subject matter jurisdiction. Instead, the Court of Appeals
affirmed the district court's dismissal of Sonner's claims for
failure to state a claim under Rule 12(b)(6), but on the basis of
federal, rather than state, law.

Judge Bade explains that the Court of Appeals' characterization of
the choice-of-law analysis between California and federal law as a
"threshold jurisdictional question" does not mean that the Court of
Appeals transformed Sonner's dismissal for failure to state a claim
into one based on lack of subject matter jurisdiction. As the
remainder of Sonner I makes clear, the "jurisdictional" question
the Court of Appeals decided was which forum's laws applied, not
whether jurisdiction was lacking.

Judge Bade notes that it is also significant that the Court of
Appeals affirmed the dismissal of Sonner's claims under Rule
12(b)(6), which "requires a judgment on the merits and cannot be
decided before the court assumes jurisdiction," citing Cook v.
Peter Kiewit Sons Co., 775 F.2d 1030, 1035-36 (9th Cir. 1985).
Thus, if the Court of Appeals had lacked subject matter
jurisdiction due to Sonner's failure to show an inadequate remedy
at law, it would have been improper for the Court of Appeals to
affirm on the ground that Sonner had failed to state a claim upon
which relief could be granted. If it thought dismissal should have
been for lack of subject matter jurisdiction, the Court of Appeals
would have vacated and remanded with instructions to that effect.

What is more, the district court dismissed Sonner's claims with
prejudice and without leave to amend, Judge Bade says. The Court of
Appeals concluded that the district court acted within its
discretion in doing so, given that "Sonner strategically chose to
amend her complaint on the eve of trial to drop her damages claim"
and was warned several times that this strategic choice could
result in a dismissal without leave to amend.

Finally, although the parties agree that a dismissal for failure to
plead an inadequate remedy at law (and therefore to state an
actionable claim for equitable relief in federal court) is not a
dismissal for lack of subject matter jurisdiction, they dispute
whether such a dismissal is "on the merits" and, thus, precludes
relitigation in another forum. As the Court of Appeals explains
next, the district court did not abuse its discretion in denying
Premier's motion for a permanent injunction, and, therefore, the
Court of Appeals does not address this dispute.

Under federal law, res judicata applies when the earlier action
"(1) involved the same 'claim' or cause of action as the later
suit, (2) reached a final judgment on the merits, and (3) involved
identical parties or privies," Mpoyo v. Litton Electro-Optical
Sys., 430 F.3d 985, 987 (9th Cir. 2005) (quoting Sidhu v. Flecto
Co., 279 F.3d 896, 900 (9th Cir. 2002)). The elements of res
judicata are similar under California law: "Claim preclusion arises
if a second suit involves: (1) the same cause of action (2) between
the same parties (3) after a final judgment on the merits in the
first suit," DKN Holdings LLC v. Faerber, 352 P.3d 378, 386 (Cal.
2015).

Ms. Sonner does not contest that two out of three elements of res
judicata are met: there is an identity of claims and parties.
Therefore, the only question about whether res judicata should
apply is whether the Court of Appeals' affirmance of the dismissal
of Sonner's claims was "on the merits" for res judicata purposes.

Premier urges the Court of Appeals to answer this question in the
affirmative, arguing that under well-established federal law the
Court of Appeals' affirmance was on the merits. The parties'
briefing, however, does not make it clear whether the federal or
state definition of "on the merits" applies under these
circumstances. Premier states that federal law controls, while
acknowledging potential "uncertainty on this choice-of-law
question." Sonner does not articulate whether she thinks the Court
of Appeals should look to federal or state law but seems to have
conceded in the district court and on appeal that federal law
applies.

Although the parties' briefing and the district court's order
suggest otherwise, California courts look to their own law to judge
the preclusive effect of a federal court judgment when the federal
court sat in diversity. Were Sonner's action based on federal
question instead of diversity jurisdiction, the answer might well
be different, Judge Bade says.

But the Court of Appeals need not resolve whether federal or state
law applies because even if res judicata applied, it would hold
that the district court did not abuse its discretion in denying the
injunction. It will, therefore, be for the state court to resolve
this California-law question, and the ultimate question of whether
res judicata bars relitigation of Sonner's claim.

Moreover, enjoining a state court judgment "is not justified even
where a state court mistakenly rejects the res judicata effect of a
prior federal judgment," Judge Bade says, citing Sandpiper Vill.
Condo. Ass'n v. Louisiana-Pacific Corp., 428 F.3d 831, 850 (9th
Cir. 2005). After all, even if a state court action should be
barred by res judicata, a state trial court's erroneous refusal to
give preclusive effect to a federal judgment may be corrected by
state appellate courts and ultimately the Supreme Court, Judge Bade
opines, among other things. This consideration also weighs against
issuing an injunction.

Premier argues that an error in the district court's legal
reasoning suggests the Court of Appeals should reverse, or at least
vacate and remand. But the district court carefully grounded its
decision on respect for the state court, and the strong presumption
against issuing an injunction. This was not an abuse of discretion,
Judge Bade holds.

The Court of Appeals holds that the district court did not abuse
its discretion in denying the injunction. As is generally proper,
it will be for the state court to decide whether res judicata
applies.

Affirmed.

A full-text copy of the Court's Opinion dated Sept. 29, 2022, is
available at https://tinyurl.com/nfcmeay6 from Leagle.com.

James R. Sigel -- jsigel@mofo.com -- and Jessica Grant --
jgrant@mofo.com -- Morrison & Foerster LLP, in San Francisco,
California; Angel A. Garganta -- aagarganta@Venable.com -- Steven
E. Swaney -- seswaney@venable.com -- Amit Rana -- arana@Venable.com
-- and Antonia I. Stabile -- aistabile@Venable.com -- Venable LLP,
in San Francisco, California, for the Defendant-Appellant.

Leslie E. Hurst -- lhurst@bholaw.com -- Timothy G. Blood --
tblood@bholaw.com -- Thomas J. O'Reardon II -- toreardon@bholaw.com
-- and Paula R. Brown -- pbrown@bholaw.com -- Blood Hurst &
O'Reardon LLP, in San Diego, California; Todd D. Carpenter --
Todd@lcllp.com -- Lynch Carpenter LLP, in San Diego, California;
Craig M. Peters, Altair Law, in San Francisco, California, for the
Plaintiff-Appellee.


PRINCESS CRUISE: Class Action Trial Over COVID-19 Outbreak Begins
-----------------------------------------------------------------
Tallis Boerne Marcus, writing for Cruise Passenger, reports that
the Federal Court trial for the Ruby Princess Class Action suit has
begun, with the court set to determine whether Princess and
Carnival Cruises could have known they were putting passengers at
risk when they allowed the Ruby Princess to sail at the start of
the pandemic, and whether or not they owed the passengers a duty of
care.

Some 2,600 passengers joined the ship on March 8, 2020, before the
vessel returned to Sydney amid an outbreak of illness. Twenty-eight
people died and over 660 people tested positive for COVID-19 in
subsequent weeks, according to a previous inquiry into the matter.

The Ruby Princess Class Action is being litigated by Shine Lawyers,
whose Class Actions Practice Leader Vicky Antzoulatos on Oct. 12
made a statement outside the Federal Court.

"The Ruby Princess sailed two and a half years ago on its fateful
journey in the early days of the pandemic. We're here today to seek
justice for the thousands of passengers who were on board the
ship.

"To seek justice for the people who lost their lives to the
outbreak. And the families whose lives were torn apart as a
result."

Ms Antzoulatos also explained the core issues being ruled on in the
case. "The claim involves whether Princess and Carnival breached
the Australia consumer law and breached its duty of care to the
passengers."

According to ABC reports of the case, the lawyer representing
Carnival and Princess David McLure SC maintained that when a person
decides to go on a cruise ship, they make a choice to have some
close encounter with other people.

He was reported as saying: "It's not correct to say that when a
person is on a cruise ship, they are then removed from the ability
to take themselves out of any particular setting where they feel
uncomfortable because, for example, there are too many people there
or people who they think are ill."

He maintained they could "isolate themselves in their stateroom
with their open-air balcony".

In court documents, Carnival argues several defences, including
that the risk of a passenger contracting a contagious disease was
"an obvious risk" to a reasonable person in the circumstances.

It claims the passengers knew or were presumed to have known that
risk and, by going on the voyage, they "voluntarily accepted" that
risk.

The trial will run for some four weeks. An attempt at meditation
between Carnival Corporation and Shine Lawyers last December.

Both Carnival and Princess have both since resumed sailing in
Australian waters.

According to Shine Lawyers' website, the case boils down to whether
Carnival and Princess breached their duty of care by allowing
passengers to sail knowing there was a heightened risk of catching
the virus while aboard, as well as failed to properly protect them
during the sailing, and whether Australian consumer law was
breached by Princess promising customers a "safe, relaxing and
pleasurable" holiday experience. [GN]

QUEST DIAGNOSTICS: Rest Period Class Certified in Stewart Suit
--------------------------------------------------------------
In the case, PAMELA STEWART and ZULEKHA ABDUL, individually and on
behalf of all similarly situated employees of Defendants in the
State of California, Plaintiffs v. QUEST DIAGNOSTICS CLINICAL
LABORATORIES, INC., and DOES 1 THROUGH 50, inclusive, Defendants,
Case No. 3:19-cv-02043-RBM-KSC (S.D. Cal.), Judge Ruth Bermudez
Montenegro of the U.S. District Court for the Southern District of
California enters an order:

   a. denying Quest's motion to strike the expert declarations of
      David Neumark and Jon Krosnick;

   b. granting Quest's request for judicial notice;

   c. granting in part and denying in part the Plaintiff's motion
      for class certification; and

   d. denying Quest's motion to strike the representative
      allegations filed by Stewart and Abdul pursuant to the
      Private Attorneys General Act.

Quest is a clinical laboratory company and the world's leading
provider of diagnostic information services. It 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. At
its PSCs, Quest offers phlebotomy services, drug testing, and
specialized testing, such as for the COVID-19 virus.

Quest employs Patient Services Representatives ("PSR" or "PSRs") at
each of its PSCs. PSRs are responsible for drawing blood samples
from patients and preparing the specimens for lab testing, among
other things. PSRs work in one of four levels. While PSR Level 1
"have no leadership responsibilities," PSR Level 4, which are also
called "Group Leads," "are at the top of the nonexempt PSR spectrum
and assist the supervisors to run multiple locations at a time
while still performing phlebotomy services." PSR Levels 2 and 3
have varying degrees of leadership responsibilities. "There are
more than 2,400 current and former non-exempt PSRs who worked in
various positions and at more than 430 locations throughout
California during the limitations periods."

Ms. Stewart has worked for Quest in San Diego, California as a
part-time PSR Level 1 since 2011. She had 25 years of phlebotomy
experience at the time she was hired, but did not have a college
degree. She has remained a PSR Level 1 since the time she was
hired.

Quest removed this putative class action from San Diego County
Superior Court on Oct. 23, 2019. The Plaintiffs filed their first
amended complaint on Feb. 12, 2020.

In her motion for class certification, Stewart's claims against
Quest are two-fold. First, she alleges the "Defendant's staffing
policies and patient service goals impede its Patient Service
Representatives from taking rest periods" in violation of the
California Labor Code and applicable Industrial Welfare Commission
("IWC") Wage Orders. In addition to her rest period claims, Stewart
also alleges race-based claims against Quest. She alleges "Black
Patient Service Representatives are underpaid and/under-promoted"
compared to white PSRs in violation of the Fair Employment and
Housing Act ("FEHA"). She also alleges Quest has a "policy and
practice of compensating its Class Members at a higher hourly rate
if they have college degrees" which has a "discriminatory impact on
its Black Patient Service Representatives," such as Stewart
herself.

Ms. Stewart seeks to certify two classes as follows: (1) "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 Sept.
13, 2015, and the date of judgment" (the "Rest Period Class"); and
(2) "all current and former Black Patient Service Representatives
of Defendant who were employed at any time in the State of
California September 12, 2016, through the date of judgment" (the
"Black PSR Class").

Throughout the entirety of the class period, Quest maintained a
written rest break policy which applied to all PSRs working in
California. Quest maintains productivity requirements for its PSRs.
PSRs are expected to see walk-in patients within 20 minutes of
arrival, and patients with appointments are expected to be seen
within 10 minutes of arrival.

In addition to alleging Quest's written rest period policy fails to
comply with the applicable IWC Wage Order, Stewart also alleges
Quest's unwritten rest period policies and practices present common
questions suitable for certification, such as: (1) whether Quest's
staffing practices and its productivity and urgency goals impeded
or discouraged its PSRs from taking rest periods; (2) whether Quest
violated California law by failing to inform its employees that
they are entitled to duty-free rest periods; (3) whether Quest
violated California law by failing to inform its employees that
they are entitled to penalty payments for any missed rest periods;
(4) whether Quest violated California law by failing to inform its
employees how to request a rest break penalty payment; and (5)
whether Quest violated California law by failing to pay rest break
penalties for any missed rest periods.

Relevant to Stewart's motion for class certification are the
related, but distinct, concepts of progression and promotion at
Quest. Progression occurs when a PSR moves "up" a level, such as
from PSR Level 1 to PSR Level 2. "Supervisors and Managers select
PSRs who have demonstrated excellent customer-facing skills,
leadership, desire and ability to coach and train others, ability
to work independently as well as on a team, and willingness to take
on additional responsibilities" when deciding to progress a PSR.
Progressions are "highly discretionary" and are "dependent upon a
supervisor's subjective view of the PSR's qualifications."

A promotion, on the other hand, occurs when a PSR elevates in
position, such as to a supervisor. Earning a promotion requires a
more formal procedure: a PSR must apply for an open position and go
through an interview process. Promotions are "dependent on
vacancies, the applicant pool, and whether a PSR actually applied
for a position." Part-time employees (such as Stewart) are
ineligible for promotions.

Ms. Stewart alleges two of Quest's policies have a discriminatory
impact on Black PSRs such as Stewart and Abdul. Specifically, she
argues that Black PSR Level 1s are progressed to PSR Level 2 at a
slower rate than White PSRs. She also alleges Quest "maintains a
policy and practice of compensating its Class Members at a higher
hourly rate if they have college degrees" which has a
discriminatory impact on Black PSRs.

In its request for judicial notice, Quest requests the Court takes
judicial notice of documents filed in support of its motion to
strike the expert declarations of David Neumark and Jon Krosnick.
Specifically, it asks the Court to take judicial notice of:

      (1) the Declaration of David Neumark in Support of
Plaintiffs' Motion for Class Certification, dated July 23, 2020, of
the Superior Court of the State of California, County of San
Francisco in the matter entitled Kelly Ellis et al v. Google, Inc.,
Super Ct. Case No. CGC-17-561299;

      (2) the Declaration of David Neumark in Support of
Plaintiffs' Reply in Support of Motion for Class Certification,
dated June 7, 2019, of the Superior Court of the State of
California, County of San Mateo in the matter entitled Jewett et
al. v. Oracle America, Inc., Super Ct. Case No. 17CIV02669;

      (3) the Expert Report of David Neumark, dated Dec. 21, 2017,
of the U.S. District Court for the Northern District of California
in the matter entitled Rabin et al. v. PricewaterhouseCoopers,
LLP., N.D. Cal. Case No. 4:16-cv-02276;

      (4) the Expert Report of David Neumark, dated Aug. 2, 2017,
of the U.S. District Court for the Southern District of Florida
Miami Division in the matter entitled Equal Employment Opportunity
Commission v. Darden Restaurants, Inc. et al., Case No.
15-cv-20561;

      (5) the Expert Report of David Neumark, dated Feb. 21, 2017,
of the U.S. District Court for the Northern District of California
in the matter entitled Heldt et al. v. Tata Consultancy Services,
Ltd., N.D. Cal. Case No. 4:15-cv-01696-YGR;

      (6) the Report of Dr. Jon A. Krosnick, dated June 22, 2020,
of the U.S. District Court of Appeals for the Ninth Circuit in the
matter entitled Le et al. v. Walgreen Co. et al., D.C. Case No.
8:18-cv-01548-DOC-ADS;

      (7) the Report of Dr. Jon A Krosnick, dated Aug. 2, 2019, of
the U.S. District Court for the Northern District of Illinois,
Eastern Division in the matter of Smith-Brown et al. v. Ulta
Beauty, Inc., et al., Case No. 1:18-cv-610;

      (8) the Sixth Report of Dr. Jon A. Krosnick, dated June 9,
2017, of the U.S. District Court for the Central District of
California in the matter entitled Jimenez v. Allstate Insurance
Company, C.D. Cal. Case No. CIV10-8486 JAK (FFMx);

      (9) the Expert Reports and Declarations in Support of
Plaintiff's Motion for Class Certification: Report of Dr. Jon A.
Krosnick, dated Aug. 8, 2011, of the U.S. District Court for the
Central District of California in the matter entitled Jimenez v.
Allstate Insurance Company, C.D. Cal. Case No. CIV10-8486 JAK
(FFMx);

      (10) the First Report of Dr. Jon A. Krosnick, dated Dec. 18,
2015, of the U.S. District Court for the Southern District of
California in the matter entitled Lucas et al. v. Breg, Inc. et
al., S.D. Cal. Case No. 3:15-cv-00258-BAS-KSC;

      (11) the Declaration and Report of Jon A. Krosnick Ph.D., in
Support of Plaintiffs' Opposition to CVS' Motion for
Decertification of the Class, dated March 11, 2015, of the Superior
Court of the State of California, County of Los Angeles in the
matter entitled Murphy v. CVS Caremark Corp., Super Ct. Case No.
BC464785;

      (12) the Declaration and Expert Report of Dr. Jon A. Krosnick
in Support of Plaintiff Trinidad Lopez' Motion for Class
Certification, dated Oct. 10, 2014, of the Superior Court of the
U.S. District Court for the Central District of California in the
matter entitled Lopez v. Liberty Mutual Insurance Company, C.D.
Cal. Case No. BC 2:14-cv-05576;

      (13) the Declaration of Plaintiffs' Expert Dr. Jon A.
Krosnick, in Support of Plaintiffs' Reply in Support of Motions for
Class Certification, dated Jan. 28, 2014, of the Superior Court of
the State of California, County of Los Angeles in the matter
entitled McCleery et al. v. Allstate Insurance Company, et al.,
Super Ct. Case No. BC 410865; and

      (14) an Order Affirming Denial of Class Certification, dated
May 17, 2017, of the Superior Court of the State of California,
County of Los Angeles in the matter of Espinoza v. East West Bank,
Super Ct. Case No. BC502166.

Judge Montenegro states that Federal Rule of Evidence Rule 201
provides that a court may take judicial notice of adjudicative
facts that are "not subject to reasonable dispute." A court may
take judicial notice of "matters of public record" and of the
existence of another court's opinion or of the filing of pleadings
in related proceedings."

In the case, Quest's request is limited to (1) expert reports or
declarations filed by David Neumark and Jon Krosnick in other court
proceedings; and (2) an order of the Superior Court of the State of
California, County of Los Angeles. Because these documents are
matters of public record and are readily verifiable, Judge
Montenegro grants Quest's request for judicial notice.

Before addressing the merits of Stewart's motion for class
certification, Judge Montenegro first considers Quest's challenges
to the declarations filed by Stewart's experts, David Neumark and
Dr. Jon Krosnick. It argues both declarations should be stricken
because each "lacks sufficient probative value to be useful in
evaluating whether class certification requirements have been met,
are improperly based on assumptions and guesswork, and lack
foundation and requisite expert qualifications." Stewart argues
both expert declarations contain admissible expert testimony and
that Quest's motion to strike is improper at the class
certification stage.

Ms. Stewart submitted the declaration of David Neumark in support
of her motion for class certification. Neumark, a professor of
economics at the University of California, Irvine, was "retained by
the Plaintiffs as a statistical expert to analyze data."
Specifically, his declaration states that he considered two
questions: (1) Do black/African American employees at Quest remain
in PS 1 (the lowest phlebotomy services position) longer than white
employees? and (2) How does education of black/African American
phlebotomists in California compare to education of white
phlebotomists in California?

Regarding question 1, Neumark concludes "black/African American
employees spend more time in PS 1 than do white employees."
Regarding question 2, he "used data from the American Community
Survey (ACS) from 2012-2018, on California residents" which
"indicates that black/African American phlebotomists in California
are more highly educated than are white phlebotomists, whereas this
is not true in the California workforce as a whole." He states he
"was not provided with other data on Quest employees that could, in
principle, be incorporated into this analysis or into an analysis
of race differences in pay, including education, work experience
prior to hire at Quest, or starting pay information.

Judge Montenegro denies Quest's motion to strike the Neumark
declaration. She finds that (i) the Court's instant task is to
evaluate the admissibility of the Neumark and Krosnick declarations
under Daubert, and examine whether the expert declarations "tend to
support class certification; (ii) objections to a study's
completeness generally go to the weight, not the admissibility of
the statistical evidence and should be addressed by rebuttal, not
exclusion; (iii) the use of 1.65 standard deviations in Neumark's
declaration appears to depart from the approach he has taken in
other declarations filed in separate actions; and (iv) even if the
ACS data suggests Black PSRs at Quest are more highly educated than
White PSRs -- and Neumark himself admits he has not studied the
educational background of Quest's actual employees -- such a
conclusion appears to cut against Stewart's college differential
theory.

Ms. Stewart also submitted the declaration of Krosnick in support
of her motion for class certification. Krosnick, a professor of
communication and political science at Stanford University, was
retained by Stewart "to provide opinions relating to whether a
reliable survey can be conducted of some employees of Quest
Diagnostics." He has yet to conduct a survey relevant to the issues
in this action, but instead opines on "whether survey research
methodology can be used to acquire reliable data on the experiences
of employees who worked for Quest Diagnostics." He concludes "that
a survey can be feasibly administered using best practices for
application in this case." Much of Krosnick's 81-page declaration
discusses the usefulness of surveys generally, including "the logic
and theory underlying survey research methods" and "the uses of
surveys in court and the valuable roles they can play in general."

Quest argues that the Krosnick declaration is useless to the trier
of fact because Dr. Krosnick failed to actually conduct his
proposed survey, making his declaration speculative. Stewart argues
"Krosnick's declaration describes in a very thorough fashion the
methodology he would use to implement a survey," and that
"Krosnick's methodology has been accepted in numerous cases.

Judge Montenegro agrees with Quest that the portions of Krosnick's
report addressing the merits of surveys generally and the use of
surveys in courts are irrelevant to any issue in this case.
However, she disagrees that Krosnick's declaration is useless
solely because the survey Krosnick designed has not yet been
completed. Other courts in this district, examining a proposed
survey designed by Krosnick at the class certification stage, have
both declined to strike Krosnick's expert report and certified a
class based in part on such a survey design.

Additionally, courts throughout this District have denied motions
to strike at the class certification stage, even where the survey
had not yet been completed, where the expert's testimony was
otherwise reliable and relevant to a plaintiff's claims. Krosnick
is clearly highly qualified in his field, and has ample experience
designing surveys used in wage and hour class actions. Quest's
other arguments regarding Krosnick's survey design and reliability
go to the weight of the evidence, not its admissibility.

For these reasons, Judge Montenegro denies Quest's motion to strike
the Krosnick declaration.

Judge Montenegro now turns to the Plaintiffs' motion for class
certification. She explains that class certification is governed by
Federal Rule of Civil Procedure 23. A district court may certify a
class only if: "(1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of law or fact
common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the
class; and (4) the representative parties will fairly and
adequately protect the interests of the class."

If the plaintiff satisfies the requirements of Rule 23(a), the
district court must also find that at least one of the several
requirements set forth in Rule 23(b) is met. Stewart seeks class
certification pursuant to Rule 23(b)(3). Rule 23(b)(3) requires
"that the questions of law or fact common to class members
predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy."

Quest argues that neither the proposed Black PSR Class nor the
proposed Rest Period Class are entitled to class treatment.
Specifically, it argues: (1) Stewart has failed to demonstrate
commonality; (2) Stewart has failed to demonstrate manageability
requirements of Rule 23(b)(3), including predominance and
superiority; and (3) Stewart's claims are atypical of the class.

Judge Montenegro finds that (i) Stewart's motion states the Black
PSR class consists of approximately 183 members, and the Rest
Period Class consists of approximately 2,493 members; (ii) there is
no apparent conflicts of interest between Stewart, her counsel, and
the proposed class members and Stewart and her counsel have
demonstrated that they will prosecute the action vigorously on the
class's behalf; (iii) Stewart has failed to satisfy her burden of
establishing commonality on her Black PSR claims to satisfy Rule
23(a)(2); (iv) Stewart has met her burden regarding both
commonality under Rule 23(a)(2) and predominance under Rule
23(b)(3) for the Rest Period Class; (v) all of Quest's PSRs,
regardless of level and regardless of scope of duty, are entitled
to lawful rest periods under California law and the applicable IWC
Wage Order; and (vi) class treatment is superior to an individual
treatment of Stewart's claims.

For these reasons, Judge Montenegro grants in part and denies in
part the Plaintiff's motion for class certification.

In its motion to strike PAGA allegations, Stewart Quest argues the
Court should strike the Plaintiffs' PAGA claims because "the
individualized inquiries and fact-intensive analysis required to
assess the Plaintiffs' claims will render any trial unmanageable as
a PAGA representative trial." The Plaintiffs oppose Quest's PAGA
Motion, arguing manageability is not required under PAGA.

Judge Montenegro finds that the parties finished briefing Quest's
PAGA Motion in January 2022. Five months later, on June 30, 2022,
the Ninth Circuit issued its decision in Hamilton v. Wal-Mart
Stores, Inc., 39 F.4th 575, 580 (9th Cir. 2022). In Hamilton, the
Ninth Circuit considered the "split among both district courts and
California courts regarding whether it is permissible for a court
to dismiss a PAGA action on similar 'manageability' grounds" and
held that "application of the Rule 23(b)(3) manageability
requirement in PAGA cases would be 'inconsistent with PAGA's
purpose and statutory scheme'." It found "the manageability
requirement cannot be imposed in PAGA actions under the guise of a
court's inherent powers" in part due to the "structural
differences" between Rule 23(b)(3) class actions and PAGA actions.

Hamilton is directly on point and controls Judge Montenegro's
ruling in the matter. Accordingly, she denies Quest's PAGA Motion.

For the reasons she discussed, Judge Montenegro grants Quest's
request for judicial notice; denies Quest's motion to strike the
expert declarations of Neumark and Krosnick; denies Quest's motion
to strike the Plaintiffs' PAGA allegations; and grants in part and
denies in part the Plaintiff's motion for class certification.

Judge Montenegro 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 Sept. 13, 2015,
and the date of judgment."

Judge Montenegro further appoints Stewart as the class
representative and GrahamHollis APC as the class counsel.

A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/mvw7dwvb from Leagle.com.


RLX TECH: New York Judge Dismisses Securities Class Action
----------------------------------------------------------
Shearman & Sterling LLP disclosed that on September 30, 2022, Judge
Paul A. Engelmayer of the United States District Court for the
Southern District of New York dismissed with prejudice a putative
class action asserting claims under the Securities Act of 1933
against an e-cigarette manufacturer, certain of its officers and
directors, and the underwriters of the company's initial public
offering in the United States. Garnett v. RLX Tech., Inc., No.
21-cv-5125, 2022 WL 4632323 (S.D.N.Y. Sept. 30, 2022). Plaintiffs
alleged that the China-based company failed to disclose the
likelihood of increased e-cigarette regulations in China that would
harm the company's financial prospects. The Court held that
plaintiffs failed to adequately allege any actionable
misrepresentation.

The Court first explained that the disclosures in the offering
documents, "taken together and in context," did not misrepresent
any facts relating to the likelihood of increased regulation. Id.
at *18. The Court emphasized that the offering materials contained
extensive disclosures regarding existing regulations in China
relating to e-cigarettes, the prospect that additional regulatory
measures could be adopted -- including potentially a total
prohibition on e-cigarettes -- and the risks to investors from such
measures. Id. at *19. The Court rejected plaintiffs' argument that
the company should have disclosed that it was "inevitable" that
authorities in China would subject e-cigarettes to regulatory
scrutiny similar to traditional tobacco products, as regulators
ultimately proposed two months after the IPO. To the contrary, the
Court determined that plaintiffs' allegations were conclusory and
that prior to the IPO Chinese regulators had indicated uncertainty
as to future regulations. Id.

The Court further held that the challenged statements were not
actionable because the information allegedly omitted was "already
in the mix of public information" at the time of the IPO and the
company's cautionary statements were protected under the "bespeaks
caution" doctrine. Id. at *22. While the Court emphasized that
"[c]ontext matters" in evaluating whether publicly available
information might nevertheless need to be disclosed, the Court
rejected plaintiffs' argument that regulatory efforts in China were
inherently difficult for investors in the United States to uncover.
The Court observed that English-language articles in the New York
Times and Wall Street Journal prior to the IPO had "revealed, to
varying degrees, the state of e-cigarette regulations in China" and
"put a member of the public with an interest in investing in [the
company] on clear notice that tightened regulations were under
active consideration and worth investigating before investing." Id.
at *23. Moreover, the Court concluded that the IPO offering
materials "repeatedly warn[ed] of the specific contingency that
lies at the heart of the alleged misrepresentation" -- the
likelihood of future regulation of e-cigarettes in China -- and
therefore the challenged forward-looking statements were protected
under the "bespeaks caution" doctrine even if, as plaintiffs
asserted, they lacked certain details. Id. at *24.

The Court separately rejected plaintiffs' allegations that the
company presented financial information that was "inaccurate" and
"not indicative of [the company's] future financial performance"
because it did not capture the financial impact of regulations that
Chinese regulators were "actively preparing" at the time of the
IPO. Id. at *24. The Court concluded that these financial-related
allegations were "derivative" of plaintiffs' primary argument that
the regulations ultimately adopted were a "foregone conclusion" and
failed for the same reason. Id. at *25. The Court further noted
that a company's "presenting an unduly optimistic view of its
financial outlook" is typically mere puffery and not actionable,
and the Court emphasized that the IPO offering documents here did
not contain any actionable misstatement or omission, particularly
in light of their extensive risk disclosures. Id.

The Court similarly rejected as "redundant" plaintiffs' argument
that the company had an independent duty to disclose material
information under Item 105 of SEC Regulation S-K and a duty to
disclose known trends and uncertainties under Item 5(D) of Form
20-F. The Court explained that Item 105 and Item 5(D) "required
nothing further" than the risk disclosures contained in the
company's offering materials. Id. at *26.

Finally, the Court evaluated "[i]n the interest of completeness"
defendants' arguments regarding plaintiffs' standing to bring a
claim under Section 12(a)(2) of the Securities Act. The Court
concluded that plaintiffs lacked standing to do so because their
certifications showed that none of them purchased their shares at
the IPO price and two had purchased after the IPO, and therefore
they did not buy their shares directly in the IPO. Id. at *28.
However, the Court rejected the argument that certain defendants --
the company's designated U.S. representative and its employee --
were not "statutory sellers" for purposes of Section 12; rather,
the Court determined that there were sufficient allegations at the
pleading stage that they solicited the purchase of securities in
the IPO and did not "merely sign a registration statement." Id.

The Court dismissed the action with prejudice because plaintiffs
had already amended their complaint twice, plaintiffs had not
requested further leave to amend, and it did not appear that the
deficiencies identified by the Court could be remedied. Id. at
*29.

Garnett v. RLX Tech., Inc. [GN]

SKANA ALUMINUM: Underpays Oilers/Maintenance Staff, McWilliams Says
-------------------------------------------------------------------
JONATHAN MCWILLIAMS, on behalf of himself and all others similarly
situated, Plaintiff v. SKANA ALUMINUM COMPANY, Defendant, Case No.
1:22-cv-01179 (E.D. Wis., Oct. 5, 2022) is a collective and class
action brought against the Defendant pursuant to the Fair Labor
Standards Act and Wisconsin's Wage Payment and Collection Laws for
purposes of obtaining relief under the FLSA and WWPCL for
Plaintiff's unpaid overtime compensation, unpaid straight time
(regular) and/or agreed upon wages, liquidated damages, costs,
attorneys' fees, and declaratory and/or injunctive relief.

The Plaintiff was hired by the Defendant as an hourly-paid,
non-exempt employee in the position of oiler/maintenance working at
Defendant's Manitowoc, Wisconsin location from approximately 2010
until September 2022.

Skana Aluminum Company is an aluminum manufacturer based in
Manitowoc, Wisconsin.[BN]

The Plaintiff is represented by:

          James A. Walcheske, Esq.
          Scott S. Luzi, Esq.
          David M. Potteiger, Esq.
          WALCHESKE & LUZI, LLC
          235 N. Executive Drive, Suite 240
          Brookfield, WI 53005
          Telephone: (262) 780-1953
          Facsimile: (262) 565-6469
          E-mail: jwalcheske@walcheskeluzi.com
                  sluzi@walcheskeluzi.com
                  dpotteiger@walcheskeluzi.com

SOULBOUND STUDIOS: Chronicles of Elyria Class Action Dismissed
--------------------------------------------------------------
Joseph Bradford, writing for mmorpg, reports that for those who
have been wondering about the status of the ongoing class action
lawsuit against Chronicles of Elyria developer Soulbound Studios,
it looks as though that lawsuit has been dismissed in court. As
such, Elyria founder Jeromy Walsh took to the quarterly update to
do a victory lap of sorts over the news.

The lawsuit, which was filed in response to Chronicles of Elyria
abruptly shutting down after delivering not more than a basic
parkour demo in 2020, was filed by backers who were demanding
refunds of their investment in Elyria. This is because Elyria, a
Kickstarted MMORPG, failed to deliver on the promises made by Walsh
when the funding began.

Walsh a few weeks later rolled this back, claiming that he
effectively misspoke and that the studio hadn't shuttered. However,
a few weeks later, backers who were filing suit had already started
to hear from the Washington State Attorney General on the case.

The lawsuit has progressed since then, with updates over the last
two years such as the fact the California suit was merged with the
Washington lawsuit as well as the news that the suit against SBS
had to conclude before the Xsolla fight could be taken up coming in
slowly. However, in an update to the Elyria website, Walsh himself
is stating that the lawsuit itself has been dismissed. And the fact
that he's publicly talking about it lends weight to the claim, as
legally speaking most companies will not speak directly on ongoing
litigation.

However, discussion in the ongoing COE Lawsuit Discord channel
where many of those who have filed suit against SBS have gathered
started to talk around the 6th of October about the possibility the
lawsuit itself was dismissed. The official court document, filed on
the 3rd of October, confirms this.

As such, Walsh took to the most recent quarterly update to give
readers an update on the studio, Kingdoms of Elyria, and do a weird
victory lap regarding the lawsuit's dismissal.

"The United States District Court for the Western District of
Washington dismissed the class action lawsuit which was filed
against Soulbound Studios. As a matter of law.

(Sidebar: I considered ending that sentence with an exclamation
mark, emojis, and even an excited expletive. But the fact is,
there's no punctuation or emoji that adequately conveys how
relieved I am by this decision. So, I just went with the classic,
informational period.)"

Walsh goes on to spin this as a victory for those companies who are
looking at crowdsource funding as their primary way to make a game
happen, stating that those who raise the funds to build the game
need to feel "secure" in that they won't be required to pay back
funds in the result of a failed project.

"But for crowdfunding to encourage innovation, companies need to
feel secure in the use of the funds they've received. If a failure
(or even just delays) means they'll have to repay the money, then
the obvious question, "how do you repay money you no longer have?"
quickly negates one of the key benefits of crowdfunding."

Weirdly, while this is an obvious victory for Walsh himself, he
extends that victory to the backers of Chronicles of Elyria as
well, spinning it as a way for the team to now focus all its
efforts on making CoE finally come to fruition. This is also before
Walsh admits that there hasn't been any meaningful work done on
Kingdoms of Elyria, the stand-alone sim that is meant to fuel the
development of the MMO that was actually promised, from an
engineering standpoint, in months.

Instead, Walsh has been working as a software engineer outside of
Chronicles of Elyria to keep the studio afloat, and in line with
the previous Quarterly update where he basically claimed he had no
more money, Walsh talks about how he's effectively mortgaged his
future on this game in order to fund the studio.

Claiming to be $500K in debt without any actual income coming in
for two years (as well as taking out over $250K of taxpayer dollars
in Covid-19 PPP Loans), Walsh acknowledges too that the dream of
being picked up by an investor or publisher is likely out of the
window thanks to the lawsuit. He also blames "the current sentiment
and misinformation" that exists about SBS on the internet as not
being an attractive candidate to be acquired.

Walsh also states that he hopes that this prompts the most
"cynical" of backers to give this another try, though if future
tests try to throw shady NDA language at them as has been done in
the past, they might not.

As it stands now, the decision can likely be appealed in court,
though whether those will be willing to move forward on appeals
remains to be seen. What also remains to be seen is whether Walsh
can hit the updated timeline of 2024 for the release of Chronicles
of Elyria. [GN]

STATE FARM: Third Circuit Affirms Dismissal of Geist Class Suit
---------------------------------------------------------------
In the lawsuit titled MIRANDA GEIST, individually and on behalf of
a class of similarly situated persons, Appellant v. STATE FARM
MUTUAL AUTOMOBILE INSURANCE COMPANY, Case No. 21-3315 (3rd Cir.),
the United States Court of Appeals for the Third Circuit affirms
the district court's order dismissing the complaint with
prejudice.

Appellant Geist was injured in an automobile accident. After
discovering that the driver's insurance coverage could not
compensate her for her injuries, she sought to recover underinsured
motorist ("UIM") benefits under her parents' automobile insurance
policy. Her parents' insurer, State Farm Mutual Automobile
Insurance Co., offered her up to $100,000 in benefits, but Geist
maintains that she is entitled to up to $200,000 in benefits
because State Farm failed to seek a waiver to provide a
UIM-coverage limit below the bodily injury-coverage limit when her
father added a new vehicle to the policy.

Ms. Geist sued State Farm seeking a declaration to this effect. The
District Court dismissed her complaint with prejudice, concluding
that Pennsylvania's Motor Vehicle Financial Responsibility Law, Pa.
Cons. Stat. Sections 1701-99.7 ("MVFRL") does not require insurers
to seek such elections of UIM coverage-limits when policyholders
add vehicles to their existing policies.

After sustaining serious injuries from the accident and seeking
compensation for her injuries, Geist asserted and later settled a
tort claim against the driver and his insurer. Because this
settlement did not fully compensate her, she made a claim to
recover UIM benefits from State Farm under a Pennsylvania Personal
Auto Policy issued to her parents, Kevin and Karen Iwanski.

When State Farm issued the Policy in 2010, it insured two vehicles
and provided liability coverage of $100,000 per person/$300,000 per
accident for bodily injuries. Kevin Iwanski also elected for the
Policy to provide UIM benefits of up to $50,000 per person/$100,000
per accident. From then until the date of Geist's accident, he made
only two changes to the Policy: (1) he removed the second vehicle
in January 2011; and (2) added a third vehicle in February 2013. As
is relevant here, at the time Iwanski added the third vehicle to
the Policy, he did not execute an acknowledgment for UIM-coverage
limits below the bodily injury-coverage limits.

Because her father never executed this acknowledgment when he added
the third vehicle to the Policy, Geist believed that, under the
Policy, she could recover up to $200,000 in UIM benefits, the
stacked total of the $100,000 UIM coverage for each insured
vehicle. State Farm, however, paid her only $100,000 in benefits,
maintaining that the Policy provided only up to $50,000 in UIM
coverage per vehicle--the lower amount Iwanski elected. Geist, in
turn, sued State Farm in Pennsylvania state court. In her putative
class action, she seeks a declaration that State Farm must provide
a stacked total of $200,000 in UIM coverage under the Policy.

State Farm removed Geist's suit to federal court and, soon
thereafter, moved to dismiss her complaint. The District Court
granted State Farm's motion and dismissed her complaint with
prejudice. It held that, under the MVFRL, an insurer must seek an
election of UIM-coverage limits that are less than the bodily
injury-coverage limits only when it issues a new policy, and, as
long as the insurer obtains such an election, the UIM-coverage
limits remain in effect as long as the policy does.

Because Iwanski executed a written election for such lower limits
when State Farm issued the Policy, and he never sought a new
policy, the Court concluded that State Farm, consistent with
Iwanski's election, need only provide up to $100,000 in stacked UIM
benefits to Geist under the Policy. It, therefore, determined that
Geist had failed to state a claim and that further amendment would
be futile. Geist timely appealed.

Circuit Judge Marjorie Rendell, writing for the Panel, notes that
UIM coverage "is designed to help defray the cost of an accident
with an uninsured or underinsured motorist," citing Gibson v. State
Farm Mut. Auto. Ins. Co., 994 F.3d 182, 184 (3d Cir. 2021).
Sections 1731 and 1734 of the MVFRL govern the provision of this
coverage in Pennsylvania.

On appeal, Geist contends that the District Court misinterpreted
sections 1731 and 1734. She argues that, contrary to the District
Court's conclusion, these statutes require an insurer to obtain a
written election to provide UIM-coverage limits lower than bodily
injury-coverage limits when a policyholder adds a new vehicle to an
existing automobile insurance policy, and, if the insurer fails to
do so, it must provide UIM-coverage limits equal to the bodily
injury-coverage limits.

The Court of Appeals disagrees.

The Court of Appeals' inquiry begins and ends with the statutory
text. Both the Court of Appeals and the Supreme Court of
Pennsylvania have recognized that sections 1731 and 1734 mean no
more than what they state.

State Farm discharged its statutorily imposed duty in 2010. That
year, Geist's parents sought an automobile insurance policy that
included UIM coverage, and State Farm issued the Policy with
UIM-coverage limits of $50,000 per person/$100,000 per accident
after it received an executed written document that requested these
limits. And no events in the years before Geist's accident
triggered sections 1731 and 1734's obligations because, as Geist
concedes, State Farm never issued a new policy to her parents. So
the MVFRL never required State Farm to seek a new written election
for lower UIM-coverage limits under the Policy.

Ms. Geist insists otherwise, but she cannot overcome the MVFRL's
plain text, Judge Rendell holds. She contends that section 1734
requires an insurer to seek a new written election whenever the
insured seeks to purchase additional UIM coverage whether or not
the insurer would provide that coverage as part of a new or
existing policy. Sections 1731's and 1734's text, however,
forecloses her reading because these provisions establish that the
issuance of a policy, not the purchase of coverage, triggers the
duty to seek an election of UIM-coverage limits, Judge Rendell
opines.

Ms. Geist's recourse to the Supreme Court of Pennsylvania's
decision in Barnard v. Travelers Home & Marine Insurance Co., 216
A.3d 1045 (Pa. 2019), proves similarly unpersuasive, Judge Rendell
holds. In that case, relying on the provision's plain meaning, the
court held that, under 75 Pa. Cons. Stat. Section 1738(c), "an
insurance company must offer an insured the opportunity to waive
stacking any time she acquires UIM coverage for more than one
vehicle, regardless of whether this acquisition occurs when she
initially applies for an insurance policy or when she subsequently
increases her UIM coverage limits for multiple vehicles."

Though Geist invites it to do so, the Court of Appeals cannot
ignore the legislature's decision to tie the duty to seek an
election of UIM-coverage limits to the issuance of a policy rather
than the purchase of coverage, Judge Rendell points out.

At bottom, the Court of Appeals says it must adhere to the MVFRL's
text. Neither section 1731 nor section 1734 of the MVFRL required
State Farm to seek a new written election of UIM-coverage limits
when her parents insured a new vehicle, so Geist has failed to
state a claim under Federal Rule of Civil Procedure 12(b)(6).

The MVFRL requires insurers to seek elections of lower UIM-coverage
limits only when they issue policies. State Farm discharged this
duty, and, as her father elected a UIM-coverage limit of $50,000,
Geist may not recover any amount in excess of this limit. For this
reason, the Court of Appeals will affirm the District Court's
order.

A full-text copy of the Court's Opinion dated Sept. 29, 2022, is
available at https://tinyurl.com/74w2hm3u from Leagle.com.

James C. Haggerty -- jhaggerty@hgsklawyers.com -- Haggerty Goldberg
Schleifer & Kupersmith P.C., in Philadelphia, Pennsylvania.

Scott B. Cooper -- scooper@schmidtkramer.com -- Schmidt Kramer
P.C., in Harrisburg, Pennsylvania.

Jonathan Shub -- shublaw@gmail.com -- Shub Law Firm, in
Haddonfield, New Jersey, Counsel for the Appellant.

Joseph A. Cancila, Jr. -- jcancila@rshc-law.com -- Sondra A.
Hemeryck -- shemeryck@rshc-law.com -- Riley Safer Holmes & Cancila
LLP, in Chicago, Illinois.

John J. McGrath, Palmer & Barr P.C., in Philadelphia, Pennsylvania,
Counsel for the Appellee.


SYMETRA ASSIGNED: Appeals Class Certification Order in White Suit
-----------------------------------------------------------------
SYMETRA ASSIGNED BENEFITS SERVICE COMPANY, et al. are taking an
appeal from a court order granting in part and denying in part the
Plaintiffs' motion to certify class in the lawsuit entitled Renaldo
White, et al., individually and on behalf of others similarly
situated, Plaintiffs, v. Symetra Assigned Benefits Service Company,
et al., Defendants, Case No. 2:20-cv-01866-MJP, in the U.S.
District Court for the Western District of Washington.

This case involves Defendant Symetra Assigned Benefits Service
Company's and Defendant Symetra Life Insurance Company's purchase
of future payments under structured settlement annuities (SSAs)
they administered. The Plaintiffs are two individuals who settled
personal-injury lawsuits for lump sum and periodic payments. The
tortfeasors in those settlements assigned their obligations to make
periodic payments to SABSCO. SABSCO then purchased an SSA from its
affiliate Symetra to fund and administer the future payments. The
Plaintiffs later sold their rights to future payments to SABSCO in
exchange for 9 immediate lump sum payments at a significant
discount.

The Plaintiffs allege that Defendants' solicitation of their rights
to the future payments under the SSAs was predatory and the result
of an illegal business scheme designed to induce annuitants into
selling their future payments at a steep discount. They pursue the
following claims: (1) Violations of the Racketeer Influenced and
Corrupt Organizations Act; (2) Violations of the Washington
Consumer Protection Act; (3) Violation of the duty of good faith
and fair dealing; (4) Breach of fiduciary duty against Symetra; (5)
Breach of fiduciary duty against SABSCO; (6) Breach of contract;
(7) Tortious interference with contract; (8) Civil conspiracy; and
(9) Unjust enrichment. They bring the action individually and on
behalf of others who similarly sold their right to future payments
to the Defendants.

On February 18, 2022, the Plaintiffs filed a motion to certify
class.

On August 3, 2022, the Court concluded that the Plaintiffs have
provided sufficient evidence to establish by a preponderance that
class certification is appropriate and proper for their claims
under RICO, Washington CPA, civil conspiracy, unjust enrichment and
contract claims under Rule 23(a) and 23(b)(3). However, the Court
denied the Plaintiffs' motion to certify a class as to their breach
of fiduciary duty claims. Judge Marsha J. Pechman found that
commonality and predominance are absent for the breach of fiduciary
duty claim.

The appellate case is captioned as Renaldo White, et al. v. Symetra
Assigned Benefits Service Company, et al., Case No. 22-35748, in
the U.S. Court of Appeals for the Ninth Circuit, filed on September
23, 2022.

The briefing schedule in the Appellate Case states that:

   -- Appellants Symetra Assigned Benefits Service Company and
Symetra Life Insurance Company Mediation Questionnaire was due on
September 30, 2022;

   -- Transcript is due on November 23, 2022;

   -- Appellants Symetra Assigned Benefits Service Company and
Symetra Life Insurance Company opening brief is due on January 4,
2023;

   -- Appellees Randolph Nadeau and Renaldo White answering brief
is due on February 6, 2023; and

   -- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]

Plaintiffs-Appellees RENALDO WHITE, et al., individually and on
behalf of all others similarly situated, are represented by:

            Gretchen Freeman Cappio, Esq.
            Adele Daniel, Esq.
            Lynn Lincoln Sarko, Esq.
            KELLER ROHRBACK, LLP
            1201 3rd Avenue, Suite 3200
            Seattle, WA 98101
            Telephone: (206) 623-2143

                   - and -

            Alison Elizabeth Chase, Esq.
            KELLER ROHRBACK, LLP
            801 Garden Street, Suite 301
            Santa Barbara, CA 93101
            Telephone: (805) 456-1496

                   - and -

            Daniel C. Simons, Esq.
            BERGER & MONTAGUE, P.C.
            1622 Locust Street
            Philadelphia, PA 19103
            Telephone: (215) 875-3000

                   - and -

            Edward S. Stone, Esq.
            175 W. Putnam Avenue, 2nd Floor
            Greenwich, CT 06830
            Telephone: (203) 550-0738

                   - and -

            Sydney Read, Esq.
            KELLER ROHRBACK, LLP
            1201 3rd Avenue, Suite 3200
            Seattle, WA 98101
            Telephone: (206) 623-1900

Defendants-Appellants SYMETRA ASSIGNED BENEFITS SERVICE COMPANY, et
al., are represented by:

            Medora A. Marisseau, Esq.
            KARR TUTTLE CAMPBELL
            701 5th Avenue, Suite 3300
            Seattle, WA 98104
            
                   - and -

            Maeve Louise O'Connor, Esq.
            DEBEVOISE & PLIMPTON, LLP
            919 3rd Avenue
            New York, NY 10022
            Telephone: (212) 909-6000

TILRAY BRANDS: Faces Langevin Class Suit Over Cannabis Products
---------------------------------------------------------------
Tilray Brands Inc. disclosed in its Form 10-K/A Amendment No. 1
Report for the fiscal year ended May 31, 2022 filed with the
Securities and Exchange Commission on October 7, 2022, that on June
16, 2020, Lisa Langevin commenced a purported class action against
Tilray, Aphria, and Broken Coast Cannabis Ltd. (a subsidiary of
Aphria) in the Alberta Court of Queen's Bench, on her behalf and on
behalf of a proposed class of all medicinal and recreational users
in Canada of the defendants' cannabis products.

The plaintiff alleges that the defendants marketed medicinal and
recreational cannabis products in circumstances where the
defendants misrepresented the amount of Tetrahydrocannabinol or
Cannabidiol in certain of their respective products.

The plaintiff claims that as a result of the alleged mislabeling,
the plaintiff and proposed class members did not receive and
consume the product that they believed they had purchased causing
them loss, risk of injury and actual injury.

The plaintiff seeks $500,000,000 in damages and restitution and
$5,000,000 in punitive damages plus interest and costs collectively
from the defendants.

On July 20, 2020, plaintiff filed an Amended Statement of Claim,
and on December 4, 2020 filed a Third Amended Statement of Claim.
The application by the defendants to be relieved from the
obligation to file a Statement of Defense was argued before the
case management justice on June 1, 2021, and a decision is under
reserve.

The Company believes the claims are without merit, and intends to
vigorously defend against them, but there can be no assurances as
to the outcome.

Tilray Brands, Inc., and its wholly owned subsidiaries is a global
cannabis-lifestyle and consumer packaged goods company
headquartered in Leamington, Ontario, Canada, with operations in
Canada, the United States, Europe, Australia, New Zealand and Latin
America.

TIMESHARE HELP: Perrong Suit Moved to Eastern District of Missouri
------------------------------------------------------------------
Judge Chad F. Kenney of the U.S. District Court for the Eastern
District of Pennsylvania transfers the case, PERRONG, Plaintiff v.
TIMESHARE HELP SOURCE, LLC, et al., Defendants, Case No. 22-1085
(E.D. Pa.), to the U.S. District Court for the Eastern District of
Missouri.

Plaintiff Andrew Perrong brings the class action against Timeshare
Help, and Eduardo Balderas, as well as Dan Human. In his initial
Complaint, Perrong brought the instant class action against only
Timeshare Help alleging violations of the Telephone Consumer
Protection Act ("TCPA"), 47 U.S.C. Section 227, for allegedly
placing telemarketing calls to him and the putative class members
whose telephone numbers were listed on the National Do Not Call
Registry.

After the Plaintiff was confronted with an implacable and opaque
blocking approach to discovery by the defense, he filed an Amended
Complaint in which he added as defendants Human and Balderas,
persons the defense identified as operative decision makers in the
Timeshare Help operation.

In the Amended Complaint, Perrong alleges that on March 10, 2022,
Timeshare Help, at the direction, supervision, and control of Human
(alleged Director of Operations) and Balderas (alleged Marketing
Director), placed unsolicited telemarketing calls to his telephone
number which has been continuously listed on the National Do Not
Call Registry since 2005. During one of these calls, Perrong was
allegedly invited to attend a presentation in Pennsylvania on the
impact of COVID-19 on the timeshare industry.

Mr. Perrong alleges that the telephone calls violated his privacy
because he did not provide consent to receive such calls.
Additionally, he alleges that because telemarketing technology is
"capable of generating thousands of similar calls per day,"
Timeshare Help also violated the privacy of a nationwide putative
class. Indeed, Perrong identified nearly two million telephone
calls allegedly placed by Timeshare Help to Pennsylvania telephone
numbers.

This Amended Complaint, however, significantly altered the venue
considerations that the Court previously found favored keeping the
case in the Eastern District of Pennsylvania. Human now a party,
moves, inter alia, to transfer the action pursuant to 28 U.S.C.
Section 1404(a). He asserts that the case should be transferred to
the Eastern District of Missouri.

Judge Kenney agrees that such a transfer is appropriate. He
explains that under 28 U.S.C. Section 1404(a), for the convenience
of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district in which
the case might have been brought. The burden is on the movant to
show that transfer is warranted and "the plaintiff's choice of
venue should not be lightly disturbed." The Court must make two
findings: (1) "both the original venue and the requested venue must
be proper"; and (2) balancing the public and private interests of
justice warrants transfer.

The private interests to be balanced include: (1) the plaintiff's
preference; (2) the defendant's preference; (3) whether the claim
arose elsewhere; (4) the convenience of the parties as indicated by
their relative physical and financial condition; (5) the
convenience of the witnesses, to the extent that witnesses may be
unavailable for trial in one of the fora; and (6) the location of
books and records, to the extent that the files could not be
produced in the alternative venue. The public interests include:
(1) practical considerations that make trial easy, expeditious, or
inexpensive; (2) the local interest in deciding local
controversies; (3) the relative administrative difficulty between
the two due to court congestion; (4) the enforceability of the
judgment; (5) the public policies of the fora; and (6) the
familiarity of the trial judge with the applicable state law in
diversity cases.

Though none of the Defendants are residents in this District, Judge
Kenney agrees that venue is proper in the Eastern District of
Pennsylvania because a substantial part of the alleged events,
i.e., conducting business via telephone calls and luncheons,
occurred here. However, for the same reason, he says venue is also
proper in the Eastern District of Missouri. Timeshare Help's
principal place of business is St. Louis, Missouri and Human is
also a resident of Missouri. For the alleged corporate officers to
have "directed and supervised Timeshare Help's business
operations," substantial events or omissions took place in the
district where Timeshare Help is headquartered: the Eastern
District of Missouri. Importantly, Perrong does not challenge
whether the Eastern District of Missouri is a proper venue where
his suit could have been originally brought.

Therefore, venue is proper in the Eastern District of Pennsylvania
and the Eastern District of Missouri.

Regarding the private interest factors, Judge Kenney he says they
weigh in favor of transfer. First, as to the parties' preferences,
Perrong wishes to litigate in this District and Defendants
Timeshare Helpand Human prefer to litigate in the Eastern District
of Missouri. The third factor - whether the claim arose elsewhere
-- weighs slightly against transfer. The parties do not dispute
that Perrong received the alleged phone calls while in this
District. Nor do they dispute that Timeshare Help's business
operations were based elsewhere. Perrong cites non-binding
precedent for the position that a TCPA claim "arises" where the
phone call was received.

The fourth and fifth factors -- convenience of the parties and
witnesses -- weigh overwhelmingly in favor of transfer, Judge Kenny
says. Perrong's Amended Complaint in which he sued individual
defendants tips the scale. There is ample evidence to suggest that
travel to Missouri, even if it would be slightly inconvenient,
would not be prohibitive to Perrong. Human provides that all former
Timeshare Help employees, who are likely to be called as witnesses,
reside near Timeshare Help's former headquarters and do not reside
within 100 miles of this District. But the Court cannot likely
order attendance of all former employees, which would require
showing that each witness "regularly transacts business" in
Pennsylvania and that attendance would not require the witness to
"incur substantial expense."

The final factor -- the location of books and records -- weighs
slightly in favor of transfer. To the extent that the factor is
relevant, Human asserts, and Perrong does not refute, that all
documents and records related to the case were physically
maintained in Timeshare Help's former headquarters, including in
the Eastern District of Missouri.

With respect to the public interest factors, Judge Kenney holds
that they likewise weigh in favor of transferring the case. As to
the practical considerations of trial, several witnesses and
relevant documents are likely located in the Eastern District of
Missouri. Additionally, the Eastern District of Missouri also has a
local interest in the case because it concerns allegedly illegal
activity committed by an entity with its principal place of
business located therein.

The final four factors -- court congestion, the enforceability of
the judgment, the public policies of the districts, and the
familiarity of the trial judge with the applicable state law --
were not addressed by the parties and the Court considers them
considered neutral between the districts.

For the reasons he stated, Judge Kenney grants in part the
Defendant's Motion to Dismiss or Transfer. He transfers the case to
the Eastern District of Missouri accordingly.

A full-text copy of the Court's Oct. 5, 2022 Memorandum is
available at https://tinyurl.com/24uh3zw9 from Leagle.com.


TRUTHFINDER LLC: Bid to Compel Arbitration in Mejia Suit Granted
----------------------------------------------------------------
In the case, ABRAHAM MEJIA, on behalf of himself and all similarly
situated, Plaintiff v. TRUTHFINDER, LLC, Defendant, Case No.
22-cv-1010-CAB-AGS (S.D. Cal.), Judge Cathy Ann Bencivengo of the
U.S. District Court for the Southern District of California grants
TruthFinder's motion for an order compelling arbitration and
dismissing the action.

The Defendant is a limited liability company that acquires
information about consumers from publicly available sources (i.e.,
"criminal and traffic records, social security number information,
sex offender registries, etc."), compiles that information into a
report, and offers those reports for purchase on its website. Mejia
contends that his former employer, Security Solutions Unlimited,
purchased a report on him -- which contained inaccurate criminal
records -- from the Defendant on June 17, 2020, and then relied on
the information in that report to terminate the Plaintiff's
employment. The Defendant did not notify the Plaintiff
contemporaneously that it was providing the report to his employer.
The Plaintiff alleges that because of the Defendant's actions, he
was left without a job, salary, or health benefits. On Aug. 31,
2020, he wrote to the Defendant requesting his Section 1681g file
disclosure, but the Defendant "ignored and/or never responded to
his letter."

On June 10, 2022, the Plaintiff filed a putative class action
complaint against the Defendant in state court alleging various
violations of the Fair Credit Reporting Act. On July 12, 2022, the
Defendant removed the matter to this Court based on federal
question jurisdiction under 28 U.S.C. Sections 1331, 1441 and 1446.
On Sept. 8, 2022, the Plaintiff filed an amended complaint
("FAC").

The Plaintiff brings three causes of action against the Defendant
on behalf of himself and three proposed nationwide classes. He
first claims that Defendant failed to provide him and class members
with their full file disclosure after they requested it, in
violation of 15 U.S.C. Section 1681g. He next alleges that the
Defendant provided consumer reports about him and class members,
which were used for employment purposes, without the employer's
certification of compliance with the disclosure, authorization and
notification requirements set forth in 15 U.S.C. Sections
1681b(b)(2) and (b)(3). Finally, he alleges that the Defendant
wrongfully failed to provide him and class members with
contemporaneous notice that it was furnishing a consumer report
about them containing criminal information likely to adversely
affect their ability to obtain employment, in violation of 15
U.S.C. Section 1681k(a)(1).

On Aug. 18, 2022, the Defendant filed a motion to compel
arbitration and dismiss the Plaintiff's case. The Defendant
attached the declaration of Andrew Johnson to its motion. Johnson
states that he is the Business Operations Manager for The Control
Group Media Co., LLC, which provides operational support to the
Defendant, and that he specifically works on "monitoring and
analyzing users' interactions with truthfinder.com." Johnson states
that approximately two years prior to the Plaintiff's employer
purchasing a report from the Defendant, the Plaintiff himself
purchased a TruthFinder subscription on May 31, 2018. On June 4,
2018, the Plaintiff retrieved a report about himself from the
Defendant's website. He then canceled his TruthFinder account the
next day.

Mr. Johnson states that prior to purchasing a TruthFinder
subscription, the "Plaintiff must have agreed to TruthFinder's
Terms of Use & Conditions of Sale two separate times" and could not
have purchased a TruthFinder subscription without doing so. He also
states that the footer of every page of TruthFinder's website
displayed its hyperlinked "Terms of Use." The Defendant's "Terms of
Use & Conditions of Sale" are attached to Johnson's declaration.

Relevant to the Court's analysis are the portions of the Terms that
refer to arbitration. First is in the introduction to the Terms.
Second, is the third section of the Terms titled "Arbitration And
Class Action Waiver." The section also states that arbitration
between the parties "will be governed by the Commercial Dispute
Resolution Procedures and the Supplementary Procedures for Consumer
Related Disputes (collectively, 'AAA Rules') of the American
Arbitration Association and will be administered by the AAA."
Finally, is the end of the section.

The Defendant contends that the Terms agreed to by the parties
encompass the present dispute and therefore, the parties should be
compelled to arbitration. It also contends that the Terms delegate
threshold questions of arbitrability to an arbitrator. Thus, it
argues that the arbitrator should determine whether the Plaintiff's
claims are subject to arbitration in the first instance.

The Defendant contends that the present dispute is encompassed by
the Terms, which the Plaintiff agreed to when he purchased a
TruthFinder subscription on May 31, 2018. It argues that the Court
should therefore enforce the Terms, including the provision
delegating the determination of arbitrability to an arbitrator, and
compel the Plaintiff to individually arbitrate his claims. The
Plaintiff contends that he does not remember agreeing to the Terms,
but even if he did, he later opted out of the agreement by
canceling his TruthFinder subscription. He also argues that his
current claims against Defendant fall outside the scope of the
Terms' arbitration agreement.

Under the FAA, a party seeking to compel arbitration has the burden
of showing that a valid, written agreement to arbitrate exists
between the parties. To determine whether the parties formed an
agreement to arbitrate, courts apply ordinary state-law principles
that govern the formation of contracts. Under California law, the
moving party must prove by a preponderance of the evidence that an
agreement to arbitrate exists.

The Plaintiff argues that the Defendant has failed to meet its
burden because it has not shown that he "actually agreed to the
arbitration provision in the Terms or the overall Terms itself,"
just that he "must have" when he purchased a copy of his report
from TruthFinder. He next argues that even if he agreed to the
Terms when he purchased his TruthFinder subscription, he
"effectively opted out of" the agreement when he canceled his
subscription on June 5, 2018.

Judge Bencivengo finds that Johnson's sworn statements constitute
sufficient evidence to demonstrate that the Plaintiff agreed to the
Terms when he purchased a TruthFinder subscription on May 31, 2018.
He also provides no evidence that he opted out of the Terms'
arbitration agreement by contacting the Defendant in writing or
evidence suggesting that termination ever occurred. Without
evidence to support the Plaintiff's contention that he opted out of
the Agreement or that it was terminated, the Defendant has met its
burden of establishing that a valid, written agreement to arbitrate
exists between the parties.

The Plaintiff next argues that even if a valid agreement to
arbitrate exists between the parties, his present claims against
the Defendant are outside the scope of the Terms' arbitration
provision.

Judge Bencivengo finds that the Terms' contractual delegation of
the arbitrability question to the arbitrator is clear and explicit.
Section 3 of the Terms provides: "ANY CONTROVERSY CONCERNING
WHETHER A DISPUTE IS ARBITRABLE will BE DETERMINED BY THE
ARBITRATOR AND NOT BY THE COURT." It also states that "THE ISSUE OF
ARBITRABILITY, will BE RESOLVED BY THE FINAL AND BINDING
ARBITRATION PROCEDURES SET BELOW." The Terms then provide that the
arbitration will be governed by the AAA Rules, which the Ninth
Circuit has found to be "clear and unmistakable evidence that
contracting parties agreed to arbitrate arbitrability," citing
Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015).

In light of the parties' clear agreement, Judge Bencivengo says the
Court "possesses no power to decide the arbitrability issue."
Therefore, the arbitrator must decide whether the Plaintiff's
present claims against the Defendant fall within the scope of the
Terms' arbitration provision.

For the foregoing reasons, Judge Bencivengo grants the Defendant's
motion to compel arbitration. She orders the parties to proceed to
arbitration in the manner provided for in the Terms. Accordingly,
she denies as moot and without prejudice the Defendant's motion to
dismiss the FAC.

In addition, Judge Bencivengo stays the action and directs the
Clerk of Court to administratively close the case. The decision to
administratively close the case pending resolution of the
arbitration does not have any jurisdictional effect.

A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/4t7s8scc from Leagle.com.


UNITED STATES: Biden Admin. Responds to Crump Breach Class Action
-----------------------------------------------------------------
April Ryan, writing for Yahoo!Sports, reports that the lawsuit,
filed by civil rights attorney Ben Crump, accuses the U.S.
government of breaching its "contractual rights" with "socially
disadvantaged" Black farmers who had been historically
discriminated against by the Department of Agriculture.

The White House on Oct. 12 touted its efforts to provide relief for
Black American farmers on the same day that the federal government
was hit with a class action lawsuit by said farmers, who say the
government broke its promise to keep their farms afloat throughout
and after the COVID-19 pandemic.

The Biden administration reacted to the lawsuit with a statement
from the United States Department of Agriculture (USDA) that does
not explicitly mention the lawsuit that was announced on Oct. 12
and filed in the United States Court of Federal Claims on Oct. 7.
However, the government sought to clarify its position after
lawsuits filed by white farmers, who claimed they were
discriminated against, led to court injunctions that froze the $5
billion intended to relieve Black and minority farmers.

The funding was earmarked in the American Rescue Plan, which was
signed into law by President Joe Biden in March 2021. It quickly
drew outrage from Republicans like Sen. Lindsey Graham, R-S.C., who
called the policy "reparations," while others claimed it was
reverse discrimination.

A group of Black farmers, represented by famed civil rights
attorney Ben Crump, says the U.S. government breached its
"contractual rights" when it repealed the provision in ARP that
would've provided the federal funding for "socially disadvantaged"
farmers, particularly Black farmers who had been historically
discriminated against by USDA.

Crump compared the "breached contract" to the 40 acres and a mule
that was promised to enslaved African Americans during the American
Civil War -- a pledge of land that never came to fruition. The
civil rights attorney is calling for the exact amount of funding
($5 billion) initially included in ARP to be awarded to the
plaintiffs.

He told theGrio the objective of the lawsuit is to "make the
federal government live up to the promise that the Black farmers
and the brown farmers relied on when they passed the American
Rescue Plan."

"The powers that be, for whatever reason, started to scream reverse
discrimination. And then the government broke their promise," said
Crump. "They did not stand up and fight for the Black farmers to
get equal justice and equal opportunity after it was clear that so
many times Black farmers and brown farmers, Asian farmers and
native farmers have been discriminated against."

Crump also noted that Black and minority farmers relied on the
promise of debt relief by the federal government, so much so that
they invested in new equipment and land. The plaintiffs say they
are now in jeopardy of losing their farms and livelihood.

Leon W. Russell, chair of the National Board of Directors at NAACP,
told theGrio that Crump's lawsuit on behalf of Black and brown
farmers is an "excellent strategy," noting that Black farmers have
been promised relief for decades. "Promises have not been kept," he
said.

While the administration says it is adamant about fighting for
Black farmers, it defended its decision to repeal the ARP
provision. In a statement, USDA said had they not, the legal battle
"would likely have not been resolved for years."

The Biden-Harris administration noted that in the Inflation
Reduction Act, Democratic senators provided $3.1 billion for
"distressed borrowers" and an additional $2.2 billion to provide
financial assistance for farmers who "have suffered discrimination
by USDA farm loan programs." However, the bill's language no longer
mentioned race as a specific criterion.

In a previous statement at the time of the IRA's passage on Capitol
Hill, Sen. Cory Booker, D-N.J., who co-sponsored the new
provisions, said "those farmers, particularly Black farmers, who
have suffered USDA discrimination, this legislation sets in motion
a process to right those wrongs."

In the early 20th century, there were many Black farmers in the
United States. In a previous interview with theGrio, Black farmers
advocate and former USDA state director, Shirley Sherrod, estimated
that there were "almost a million Black farmers somewhere around
1910 or so," who she said, "owned about 15 million acres of
farmland."

Today, the number of Black farmers is said to be dismal, as many of
them had to shut down their businesses due to a lack of capital.
Additionally, many were denied loans from the Department of
Agriculture because of alleged discrimination. A settlement was
eventually reached during the Obama administration to the tune of
$1.25 billion. [GN]

UNITED STATES: Lambro Appeals FLSA Suit Dismissal
-------------------------------------------------
JASON LAMBRO is taking an appeal from a court order dismissing his
lawsuit entitled Jason Lambro, individually and on behalf of others
similarly situated, Plaintiff, v. The United States, Defendant,
Case No. 1:21-cv-01447-ZNS, in the U.S. Court of Federal Claims.

The Plaintiff brought a class action suit against the Defendant for
alleged violation of the Fair Labor Standards Act. According to the
complaint, U.S. Agency for Global Media's (USAGM's) misclassified
the Plaintiff and the Class members as independent contractors
rather than employees.

As a result of USAGM's actions, the Plaintiff and the Class members
are entitled to unpaid wages for work performed for which they did
not receive any compensation, overtime work for which they did not
receive any overtime premium pay as required by law, and are
entitled to liquidated damages under the FLSA, contends the suit.

In response, the Defendant moved to dismiss all claims that accrued
prior to January 28, 2018, as well as the Plaintiff's claim for
declaratory relief, for lack of subject matter jurisdiction. In
addition, the Defendant moved to dismiss the remainder of the
Plaintiff's complaint for failure to state a claim upon which
relief may be granted because the Plaintiff cannot establish that
he is a federal employee entitled to the FLSA's protections. The
Defendant's motion to dismiss has been fully briefed, and the Court
held oral argument on June 15, 2022.

On September 20, 2022, Judge Zachary N. Somers granted the
Defendant's motion to dismiss for failure to state a claim and for
lack of jurisdiction to grant the declaratory relief.

The appellate case is captioned as Lambro v. U.S., Case No.
22-2249, in the U.S. Court of Appeals for the Federal Circuit,
filed on September 23, 2022.

The briefing schedule in the Appellate Case states that:

   -- Entry of Appearance and Certificate of Interest were due on
October 7, 2022;

   -- Docketing Statement is due on October 24, 2022; and

   -- Appellant's brief is due on November 22, 2022. [BN]

Plaintiff-Appellant JASON LAMBRO, individually and on behalf of all
others similarly situated, is represented by:

            Joseph Anthony Whitcomb, Esq.
            WHITCOMB, SELINSKY, PC
            2000 South Colorado Boulevard
            Tower One
            Denver, CO 80222
            Telephone: (303) 534-1958

Defendant-Appellee UNITED STATES is represented by:

            Matthew Jude Carhart, Esq.
            DEPARTMENT OF JUSTICE
            Commercial Litigation Branch
            1100 L. Street NW
            Washington, DC 20530
            Telephone: (202) 307-0313

VARIABLE ANNUITY: Court Grants Bid to Dismiss Markham ERISA Suit
----------------------------------------------------------------
In the case, D.L. MARKHAM, DDS, MSD, INC., 401(K) PLAN and D.L.
MARKHAM, DDS, MSD, INC., as plan administrator, Plaintiffs v. THE
VARIABLE ANNUITY LIFE INSURANCE COMPANY, VALIC FINANCIAL ADVISORS,
INC., and VALIC RETIREMENT SERVICES COMPANY, Defendants, Civil
Action No. H-22-0974 (S.D. Tex.), Judge Sim Lake of the U.S.
District Court for the Southern District of Texas, Houston
Division, enters a Memorandum Opinion and Order:

   a. granting the Motion to Dismiss and/or Motion to Strike
      filed by The Variable Annuity Life Insurance Co.; and

   b. denying as moot the Motion to Dismiss filed by VALIC
      Financial Advisors, Inc.

Plaintiffs, the D.L. Markham, DDS, MSD, Inc. 401(k) Plan ("Markham
Plan" or "the Plan") and D.L. Markham, DDS, MSD, Inc. ("Markham"),
filed this action in the U.S. District Court for the Eastern
District of California, against Defendants The Variable Annuity
Life Insurance Co. ("VALIC"), VALIC Financial, and VALIC Retirement
on Jan. 4, 2021. The Plaintiffs challenge a surrender fee that
VALIC assessed against the Plan's assets. They seek recovery of the
fee under the Employee Retirement Income Security Act ("ERISA").
They also seek to represent the class of similarly situated persons
whose contracts authorized VALIC to collect a surrender fee.

Markham is a dental practice located in Auburn, California. The
Markham Plan is an employee pension benefit plan within the meaning
of ERISA. Markham, the Plan's sponsor, established the Plan on Jan.
1, 2017, to provide pension benefits to its employees. Markham is
also the Plan's "administrator" and the Plan's "named fiduciary" as
those terms are defined in ERISA. VALIC is an insurance company
that offers tax-qualified retirement plans. VALIC Financial is a
subsidiary of VALIC.

On May 18, 2018, Markham entered an agreement with VALIC to
maintain the Plan on VALIC's retirement platform. Markham selected
the Portfolio Director Group Fixed and Variable Deferred Annuity
Contract ("the PD Contract") as the Plan's annuity contract.
VALIC's "Annual Administrative Service Fee" was between $2,500 and
$12,000. The PD Contract also provided for a 5% surrender charge on
transfers out of the contract on amounts contributed in the
previous 60 months.

In January of 2020, Markham, dissatisfied with VALIC's investment
returns and quality of services, informed VALIC that it intended to
terminate the PD Contract and select a new service provider.
Markham submitted a request asking VALIC to allow it to withdraw
the Plan's assets without triggering a surrender fee. VALIC's
Executive Review Committee reviewed the request, and VALIC
ultimately informed Markham that it had decided to impose the
surrender fee. Markham transferred all Plan assets from VALIC's
platform to Markham's new service provider. VALIC retained $20,703
of the assets as a surrender fee, approximately 4.5% of the Plan's
assets.

VALIC Financial Statements from 2019 indicate "that it held
$3,945,000,000 in group annuities that include a surrender charge
of five percent or more. Based on that figure, Plaintiffs estimate
that there were over 8,000 persons with VALIC contracts that
include a surrender charge.

On Jan. 4, 2021, Markham and the Plan brought this action in the
Eastern District of California against VALIC, VALIC Financial, and
VALIC Retirement. The Plaintiffs allege that collecting the
surrender fee was a breach of VALIC's fiduciary duty to the Plan
under ERISA Section 1104(a) and that the PD Contract's term
authorizing the surrender fee made the PD Contract a prohibited
transaction within the meaning of ERISA Section 1106(a).

The Plaintiffs seek to represent a class of similarly situated
persons, described in the Complaint as: All ERISA covered plan
administrators/plans that entered an agreement with VALIC in which
VALIC had discretion to impose a surrender charge on outgoing
transfers and which paid VALIC a fee of any kind since Jan. 4,
2018.

They also seek to represent a "Self-Dealing Subclass," defined as:
All ERISA covered plan administrators/plans that entered an
agreement with VALIC in which VALIC imposed the surrender charge on
outgoing transfers since Jan. 4, 2018.

The Plaintiffs seek an accounting by VALIC and disgorgement of "all
losses caused to Class Members' plans -- including all fees
retained -- as a result of their knowing participation in a
prohibited transaction" and restoration of "all losses caused to
the Subclass Members' plans as a result of their self-dealing
prohibited transaction as a fiduciary in imposing the surrender
fee." They also seek attorneys' fees.

On March 25, 2022, the U.S. District Court for the Eastern District
of California transferred the case to this court under 28 U.S.C.
Section 1404(a). VALIC filed its Motion to Dismiss on April 22,
2022. It argues that both counts fail to state a legally cognizable
claim.

Regarding Markham's fiduciary breach claim under ERISA Section
1104(a), Markham argues that it is not a fiduciary act to collect
predetermined fees that are stated in the contract, and therefore
it could not be a fiduciary breach to do so.

As to the prohibited transaction claim, VALIC argues that ERISA's
prohibited transaction provision only applies to transactions with
a "party in interest" and that VALIC does not meet the
party-in-interest definition. In the alternative, it requests that
the court strike portions of the class action allegations regarding
administrative fees. On May 23, 2022, the Plaintiffs filed The
Markham Plaintiffs' Opposition to Defendant VALIC's Motion to
Dismiss and/or Motion to Strike. On June 6, 2022, VALIC filed its
Reply in Support of Motion to Dismiss and/or Motion to Strike of
Defendant The Variable Annuity Life Insurance Company ("VALIC's
Reply").

On April 22, 2022, VALIC Financial filed its separate Motion to
Dismiss of Defendant VALIC Financial Advisors, Inc. requesting that
the Complaint be dismissed as to it. VALIC Financial argues that
the Plaintiffs cannot state a legally cognizable claim against it
because it was not a party to the PD Contract, never provided
services to the Plaintiffs, and never received fees from the
Plaintiffs.

On May 23, 2022, the Plaintiffs filed The Markham Plaintiffs'
Opposition to Defendant VALIC Financial Advisors' Motion to
Dismiss. On June 6, 2022, VALIC Financial filed its Reply in
Support of Motion to Dismiss.

Judge Lake examines VALIC's Motion to Dismiss. The Complaint
alleges that VALIC violated its Section 1104(a) fiduciary duty by
collecting the fee. It also alleges that the Plan's contract with
VALIC was a Section 1106(a) prohibited transaction because VALIC
was a party in interest and because no Section 1108 exemption
applies, due to the impermissible surrender fee. VALIC argues that
the fiduciary-duty claim fails because collecting the fee was not a
fiduciary act, and that the prohibited-transaction claim fails
because VALIC was not a party in interest when it entered the
contract.

Judge Lake grants VALIC's Motion to Dismiss. He opines that because
VALIC's surrender fee was a predetermined fee established in the
parties' contract, VALIC did not act as a fiduciary within the
meaning of 29 U.S.C. Section 1002(21)(A) by collecting the fee. The
Plaintiffs have therefore failed to state a legally cognizable
claim that collecting the surrender fee breached VALIC's fiduciary
duty under ERISA. He also opines that because VALIC was not a party
in interest when it entered the contract, the contract is not a
Section 1106(a) prohibited transaction. Last, he opines that the
payment of the contractual fees could always subject the agreement
to scrutiny. But when a service provider collects a predetermined
fee in accordance with the initial contract's terms, that
collection is not a separate transaction that triggers Section
1106(a) scrutiny.

For the reasons he explained, Judge Lake concludes that the
Plaintiffs' ERISA Sections 1104(a) and 1106(a) claims fail as a
matter of law. In light of the ample opportunity the Plaintiffs
have had to add these allegations and their undue delay in doing
so, it would not be an efficient use of the Court's or the parties'
resources to grant leave to amend. Judge Lake, therefore, denies
the Plaintiffs' request for leave to amend. Because he concludes
that the Plaintiffs have failed to state a claim against either
Defendant, Judge Lake denies as moot VALIC Financial's Motion to
Dismiss as moot.

A full-text copy of the Court's Oct. 5, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/3me5ucbn from
Leagle.com.


WAITR HOLDINGS: Appeals Summary Judgment Ruling in Bobby's Suit
---------------------------------------------------------------
WAITR HOLDINGS, INCORPORATED is taking an appeal from a court order
granting in part and denying in part its motion for reconsideration
of a summary judgment ruling in the lawsuit entitled Bobby's
Country Cookin', L.L.C., et al., individually and on behalf of
others similarly situated, Plaintiff, v. Waitr Holdings,
Incorporated, Defendant, Case No. 2:19-CV-552, in the U.S. District
Court for the Western District of Louisiana.

As previously reported in the Class Action Reporter, on April 30,
2019, Bobby's filed a Class Action Complaint individually, and on
behalf of all persons or entities nationwide who are similarly
situated. Bobby's Complaint alleged breach of contract (Count I),
violation of the duty of good faith and fair dealing in the breach
of contract (Count II); and unjust enrichment (Count III).

On March 19, 2020, a First Amended and Supplemental Class Action
Complaint was filed by Bobby's, which added Casa Manana, Que Pasa
and Casa Tu. In this amended complaint, Plaintiffs proposed two
classes: (1) The Service Transaction Fee Increase Class, and (2)
The Agreement Termination Class. In addition to the previous three
counts, Plaintiffs added Count IV and Count V, alleging breach of
duty and good faith and unjust enrichment on behalf of The
Agreement Termination Class.

On December 14, 2020, the Defendant filed a motion for partial
summary judgment, which the Court granted in part and denied in
part through an Order entered by Judge Terry A. Doughty on
September 24, 2021.

On October 22, 2021, the Defendant filed a motion for
reconsideration of the Court's ruling on its motion for partial
summary judgment. This motion was granted in part and denied in
part on September 12, 2022.

The appellate case is captioned Bobby's Country Cookin' v. Waitr,
Case No. 22-90052, in the United States Court of Appeals for the
Fifth Circuit, filed on September 23, 2022. [BN]

Plaintiffs-Respondents BOBBY'S COUNTRY COOKIN', L.L.C, et al., are
represented by:

            Nicholas W. Armstrong, Esq.
            PRICE ARMSTRONG
            1919 Cahaba Road
            Birmingham, AL 35223
            Telephone: (205) 706-7517

                   - and -

            Adras Paul LaBorde, III, Esq.
            DUDLEY DEBOSIER INJURY LAWYERS
            1075 Government Street
            Baton Rouge, LA 70802
            Telephone: (225) 478-4122

                   - and -

            John M. Rainwater, Esq.
            RAINWATER HOLT
            P.O. Box 17250
            Little Rock, AR 72222
            Telephone: (501) 868-2500

Defendant-Petitioner WAITR HOLDINGS, INCORPORATED is represented
by:

            Amelia Williams Koch, Esq.
            BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C.
            201 Saint Charles Avenue
            New Orleans, LA 70170
            Telephone: (504) 566-5222

                   - and -

            Erin E. Pelleteri, Esq.
            BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C.
            201 Saint Charles Avenue
            New Orleans, LA 70170
            Telephone: (504) 566-5287

WAYNE COUNTY, MI: Appeals Preliminary Approval of Bowles Suit Deal
------------------------------------------------------------------
ERIC R. SABREE, et al. are taking an appeal from court orders in
the lawsuit entitled Tonya Bowles, et al., individually and on
behalf of others similarly situated, Plaintiffs, v. Eric R. Sabree,
in his official and personal capacity, et al., Defendants, Case No.
2:20-cv-12838, in the U.S. District Court for the Eastern District
of Michigan.

The action arises out of property tax foreclosures in Wayne and
Oakland counties. Plaintiffs Tonya Bowles and Bruce Taylor, former
real property owners, allege violations of their constitutional
rights and Michigan law in connection with the tax foreclosure
process. The Plaintiffs filed a putative class action Complaint on
behalf of themselves and other similarly situated individuals
against the following Defendants: (i) County of Wayne by its Board
of Commissioners, also sometimes known as Charter County of Wayne
by its Board of Commissioners; (ii) County of Oakland; (iii) Wayne
Treasurer, Eric Sabree; and (iv) Oakland Treasurer, Andrew
Meisner.

In their pleading, the Plaintiffs do not challenge the foreclosure
of their property; instead, they assert violations of their rights
under the Fifth, Eighth, and Fourteenth Amendments of the United
States and Michigan Constitutions and state law in connection with
the tax auction sales. Specifically, they claim that the Defendants
wrongfully retained the sales proceeds exceeding the taxes they
owed on the properties and seek unpaid "just compensation" and
other monetary damages. The Plaintiffs are suing Sabree and Meisner
in their individual and official capacities.

The Defendants filed motions to dismiss, which the Court granted in
part and denied in part on January 14, 2022. The Court also granted
class certification.

On January 28, 2022, the Defendants filed a motion for
reconsideration.

On July 26, 2022, Defendant County of Oakland filed a joint motion
for approval of notice plan and appointment of claims administrator
and a joint motion for preliminary approval of settlement.
Plaintiff Bruce Taylor also filed a petition for attorneys' fees.

On August 11, 2022, Defendant County of Oakland filed a motion to
strike.

On September 6, 2022, Judge Linda V. Parker denied the Defendants'
motions for reconsideration and Oakland's motion to strike, and
granted Oakland's joint motion for approval of notice of plan and
appointment of claims administrator, and joint motion for
preliminary approval of settlement, as well as Taylor's petition
for attorneys' fees.

The Court said it finds no mistake in its January 14, 2022 decision
that, when corrected, changes the outcome of that decision. Nor
does "a need to correct a clear error or prevent manifest
injustice" warrant reconsideration of the decision.

The appellate case is captioned In re: Eric Sabree, et al., Case
No. 22-0111, in the United States Court of Appeals for the Sixth
Circuit, filed on September 21, 2022. [BN]

Defendants-Petitioners ERIC R. SABREE, et al., individually and on
behalf of all others similarly situated, are represented by:

            Theodore W. Seitz, Esq.
            DYKEMA
            201 Townsend Street, Suite 900
            Lansing, MI 48933
            Telephone: (517) 374-9100

Plaintiffs-Respondents TONYA BOWLES, et al., individually and on
behalf of all others similarly situated, are represented by:

            Aaron D. Cox, Esq.
            Law Office
            23820 Eureka Road
            Taylor, MI 48180
            Telephone: (734) 287-3664

                   - and -

            Mark K. Wasvary, Esq.
            Law Office
            645 Griswold, Suite 4300
            Penobscot Building
            Detroit, MI 48226
            Telephone: (248) 649-5667

[*] 1st Annual Complex Litigation Ethics Conference This Saturday
-----------------------------------------------------------------
The Center For Litigation and Courts, UC Hastings Law, and
Huntington National Bank invite you to the first annual Complex
Litigation Ethics Conference. This program will bring together
luminaries in the field -- judges, scholars, lawyers, and others --
to discuss a cutting-edge topic that is of critical importance to
our justice system.

The event will be held on campus and virtually on Saturday, October
22, 2022, from 8:45 a.m. to 4:45 p.m. Pacific Time at UC Hastings
College of the Law in San Francisco. 7.0 Ethics CLE Credits are
available.

Expert panelists will discuss important industry topics including:

     * Adapting Ethics to Complex Litigation
     * Ethics in Funding Complex Litigation
     * Diversity, Equity, and Inclusivity in Complex Litigation
     * Communications with Absent Class Members

The program will also include a special presentation of an
inaugural Annual Award for Excellence in Ethics in Complex
Litigation. The honoree will be recognized for accomplishments in
promoting ethics in class actions, MDLs, or other complex
litigation.

Capacity is limited, so please register today at
https://bit.ly/3rpycs7

View the agenda at https://bit.ly/3Cv2tMv



                            *********

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
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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.

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                   *** End of Transmission ***