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/raid1/www/Hosts/bankrupt/CAR_Public/221110.mbx C L A S S A C T I O N R E P O R T E R Thursday, November 10, 2022, Vol. 24, No. 219 Headlines ALPHABET INC: Dream Big's Claims Dismissed With Leave to Amend ARKANSAS: DeWeese Ordered to Amend Suit v. White to Cure Defects ARKANSAS: McAllister Ordered to Amend Suit v. White to Cure Defects AUTO CLUB: Moore Suit Discovery Stayed Pending Summary Judgment Bid BROOKS RUN: Seeks Dismissal of Wage Payment Class Action Lawsuit CALIFORNIA STATE: Court Denies Anders' Bid for Participation Data CAROLINA LEASE: Bid to Dismiss Bland's Amended Complaint Granted CBS CORP: Laborers Pension Trust to Declare No. of Submitted Claims CLOUDERA INC: Judge Tosses Class Action Over Securities Violations COMPASS GROUP: Baldwin Balks at Vending Machines' Two-Tier Pricing COMPASS GROUP: Borrero Balks at Vending Machines' Two-Tier Pricing DAKOTA 2000: Knight's Bid to Certify Collective Action Partly OK'd DREAMFIELDS BRANDS: Faces Class Action Over TCH Content Mislabeling FACILITY SOLUTIONS: Denial of Arbitration Bid in Mills Suit Upheld FAT BRANDS: Awaits Initial Approval of $2.5M Securities Suit Deal HAUDENOSAUNEE DEVELOPMENT: Breach Suit Moves Towards Certification HEWLETT-PACKARD CO: Faces Class Action Over Laptop Battery Defects HINO MOTORS: GMP Law Enters Into Co-Counsel Arrangement with LCHB INNOCOLL HOLDINGS: $2.755M Securities Class Suit Deal Has Final Nod INNOCOLL HOLDINGS: Order & Final Judgment Issued in Securities Suit LABTOX LLC: Court Refuses to Approve Settlement in Johnson Suit LAS VEGAS SANDS: Bid to Dismiss Daniels Family Trust Suit Pending MARYLAND: Police Officers File Racial Discrimination Class Action MAZDA MOTOR: Final Pretrial Brief in Water Pump Suit Set March 2023 MICHIGAN: Grant of Summary Judgment in McCormick v. MSP Affirmed MORGAN STANLEY: Helfand Balks at Appeal Bond Imposition in Tillman NEW YORK: MTA Faces Class Action Over Human Rights' Law Violations ONTARIO: McMillan Discusses Appeal Court Ruling in Detention Suit REXEL USA: Court Vacates Recommendations to Dismiss Torres Suit ROCHE FREEDMAN: Seeks Dismissal of Class Action Suit Over Leaks SNAP INC: Faces Suit in Federal Court for Breach of Fiduciary Duty ST. LOUIS COUNTY, MO: Summary Judgment in Furlow Suit Partly Upheld SYNGENTA CROP: Croscut Sues Over Monopoly of Pesticides for Farmers TARGET CORP: Denial of Judgment on Pleadings in Bowen Suit Reversed TASKUS INC: Lozada Appointed as Lead Plaintiff in Securities Suit TEXAS: Unclaimed Property Law Unconstitutional, Ambriz Suit Says U.S. BANCORP: Bids for Lead Plaintiff Appointment Due Dec. 26 U.S. BANCORP: Deadline for Securities Claims Filing Set Dec. 26 UNCLE AL'S: Lehn Seeks to Certify Class of Restaurant Staff WHITE CASTLE: BIPA Case Pending Before Illinois Supreme Court YGRENE ENERGY: Dismissal Judgments in Morgan & Roberts Suits Upheld ********* ALPHABET INC: Dream Big's Claims Dismissed With Leave to Amend -------------------------------------------------------------- In the case, DREAM BIG MEDIA INC., et al., Plaintiffs v. ALPHABET INC., et al., Defendants, Case No. 22-cv-02314-JSW (N.D. Cal.), Judge Jeffrey S. White of the U.S. District Court for the Northern District of California grants Google and Alphabet's Motion to Dismiss and denies their Motion to Strike. Now before the Court for consideration are the motion to dismiss and motion strike filed by Google LLC and Alphabet (collectively, "Google"). Plaintiffs Dream Big Media, Getify Solutions, Inc., and Sprinter Supplier LLC are three businesses that allegedly use Google mapping services, including application programming interfaces ("APIs"), to display or use maps or maps-related information on their websites or mobile applications. The crux of the Plaintiffs' complaint is that Google unlawfully ties its Maps, Routes, and Places API services together by purportedly refusing to sell one API service unless the purchaser also agrees to purchase another Google mapping service or agrees to refrain from purchasing API services from other companies. The Plaintiffs allege that this conduct, combined with Google's alleged market power, allows Google to charge higher prices for its mapping API services. They allege Google's actions constitute unlawful tying, bundling, exclusive dealing, and monopoly leveraging in violation of the Sherman Act, the Clayton Act, and California's Unfair Competition Law. Dream Big Media is a digital-advertising business that has used and paid for Google's digital-mapping APIs. It has used Google Maps Route APIs to determine the distance between two zip codes. The Plaintiffs allege that Dream Big Media could not use competing providers' digital-mapping APIs and could not mix and combine Google's digital-mapping APIs with competitors' digital-mapping services. Getify developed a mobile web app called RestaurNote that allowed users to make notations about experiences related to their physical location. RestaurNote used credits offered by Google to utilize Google's web-based digital-mapping APIs. The Plaintiffs allege that after Google increased the price of its digital-mapping APIs, use of the services became "unworkable" for RestuarNote. They allege that Getify could not combine the use Google's digital-mapping APIs with APIs from other providers if any of the data interacted with Google's digital-mapping capabilities. Sprinter Supplier is an e-commerce automotive parts shop that wanted to use digital-mapping APIs to help local customers find its business. The Plaintiffs allege that Sprinter Supplier searched for providers to use as an alternative to or in combination with Google's digital-mapping APIs because of the high prices Google charged for its services. They allege, however, that because of Google's anticompetitive conduct, Sprinter Supplier could not use competing providers' digital-mapping APIs. As a result, it used Google's products and services, which depleted the free credits Google had offered. The Plaintiffs allege that the relevant product markets are Maps APIs, Routes APIs, and Places APIs. They assert each market is "global." They also allege that other relevant markets include "the market for internet search" and "the market for cloud computing." They allege Google engages in exclusionary tying to prohibit customers from using any competing tools. The Plaintiffs allege that the Terms of Services prohibit developers from using any component of the Google Maps Core Service with mapping services provided by non-Google firms. They further allege that if a customer requests a specific digital-mapping API, Google will unilaterally add on additional digital-mapping APIs and charge the customer for those APIs. Judge White grants Google's Motion to Dismiss. He dismisses all of the Plaintiffs' claims. However, because he cannot say amendment would be futile, he dismisses the complaint with leave to amend. Judge White finds that (i) the Plaintiffs' conclusory allegations are insufficient to establish coercion. Plaintiffs do not allege what Google products they were forced to purchase or what products they were unable to purchase because of Google's Terms of Service; (ii) because Getify and Sprinter Supplier fail to allege they purchased any Google mapping services, they fail to allege coercion; and (iii) the Plaintiffs' failure to allege facts showing the absence of economic substitutes for the products renders the alleged relevant markets legally insufficient and a motion to dismiss may be granted. Moreover, Judge White finds that the Plaintiffs fail to plausibly allege market power in the relevant market and to the extent they argue that they have adequately alleged "direct demonstrations" of market power, those conclusory allegations are insufficient to establish market power, even assuming they had sufficiently defined the relevant market, which they have not. Finally, because the Plaintiffs' UCL claim is governed by the same standard as their antitrust claims, Judge White dismisses it for the same reasons as the antitrust claim. Google has requested the Court takes judicial notice of certain documents in connection with the motion to dismiss. Judge White has not relied on these documents in deciding the instant motion and he denies Google's request as moot. A full-text copy of the Court's Nov. 1, 2022 Order is available at https://tinyurl.com/3hn3m94r from Leagle.com. ARKANSAS: DeWeese Ordered to Amend Suit v. White to Cure Defects ---------------------------------------------------------------- In the case, BRADLEY R. DEWEESE, ADC #552216, Plaintiff v. WHITE, et al., Defendants, Case No. 4:22CV01048-DPM-JTK (E.D. Ark.), Magistrate Judge Jerome T. Kearney of the U.S. District Court for the Eastern District of Arkansas, Central Division, orders the Plaintiff to amend his Complaint to cure the defects. Mr. DeWeese is confined in the Pulaski County Detention Center. He filed this pro se action under 42 U.S.C. Section 1983 against 10 Pulaski County Detention Center officers in their personal and official capacities alleging violations of his federally protected rights. The Plaintiff, a pretrial detainee, alleges that the Defendants denied inmates access to grievances, showers, mail, telephones -- including calls to attorneys -- and the law library on multiple dates in September and October 2022. He specifically identified Sept. 19, 2022, and the period of Sept. 22-29, 2022, as well as Oct. 1, 6, 8-9, 11, and 16-19, 2022. The Plaintiff complains of conditions common to multiple inmates. He believes the Defendants' behavior constituted cruel and unusual punishment. He seeks damages, among other relief. Judge Kearney explains that the PLRA requires federal courts to screen prisoner complaints seeking relief against a governmental entity, officer, or employee. The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. The Plaintiff brought suit under 42 U.S.C. Section 1983. Liability under Section 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights. Bare allegations void of factual enhancement are insufficient to state a claim for relief under Section 1983. Further, pro se litigants are not authorized to represent the rights, claims and interests of other parties in any cause of action, including a class action lawsuit. Judge Kearney finds that it is uncertain if all allegations are the Plaintiff's own experience. This is important because for a plaintiff to establish liability against a defendant, the plaintiff must have suffered some personal injury as a result of a defendant's unlawful actions. And without some injury to the plaintiff, there is no viable case or controversy. Judge Kearney then holds that the Plaintiff may amend his Complaint to cure the defects explained. The Plaintiff's Amended Complaint should: 1) name each party he believes deprived him of his constitutional rights and whom he wishes to sue in this action; 2) provide specific facts against each named Defendant in a simple, concise, and direct manner, including dates, times, and places if possible; 3) indicate whether he is suing each Defendant in his/her individual or official capacity, or in both capacities; 4) explain the reasons for an official capacity claim, if he makes one; 5) explain how each defendant's actions harmed him personally; 6) explain the relief he seeks; and 7) otherwise cure the defects explained above and set out viable claims. For these reasons, if the Plaintiff wishes to submit an Amended Complaint for the Court's review, he must file the Amended Complaint consistent with the instructions described within 30 days from the date of the Order. If he does not submit an Amended Complaint, Judge Kearney will recommend that his original Complaint, as amended, be dismissed. The Clerk of the Court is directed to mail the Plaintiff a blank 42 U.S.C. Section 1983 Complaint form. A full-text copy of the Court's Nov. 1, 2022 Order is available at https://tinyurl.com/8237rsa4 from Leagle.com. ARKANSAS: McAllister Ordered to Amend Suit v. White to Cure Defects ------------------------------------------------------------------- In the case, JOHN McALLISTER, ADC #263924, Plaintiff v. WHITE, et al., Defendants, Case No. 4:22CV01047-DPM-JTK (E.D. Ark.), Magistrate Judge Jerome T. Kearney of the U.S. District Court for the Eastern District of Arkansas, Central Division, orders the Plaintiff to amend his Complaint to cure the defects. Mr. McAllister is confined in the Pulaski County Detention Center. He filed this pro se action under 42 U.S.C. Section 1983 against 10 Pulaski County Detention Center officers in their personal and official capacities alleging violations of his federally protected rights. The Plaintiff, a pretrial detainee, alleges that the Defendants denied inmates access to grievances, showers, mail, telephones—including calls to attorneys—and the law library on multiple dates in September and October 2022. He specifically identified Sept. 19, 2022, and the period of Sept. 22-29, 2022, as well as Oct. 1, 6, 8-9, 11, and 16-19, 2022. The Plaintiff believes the Defendants' behavior constituted cruel and unusual punishment. He seeks damages, among other relief. Judge Kearney explains that the PLRA requires federal courts to screen prisoner complaints seeking relief against a governmental entity, officer, or employee. The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. The Plaintiff brought suit under 42 U.S.C. Section 1983. Liability under Section 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights. Bare allegations void of factual enhancement are insufficient to state a claim for relief under Section 1983. Further, pro se litigants are not authorized to represent the rights, claims and interests of other parties in any cause of action, including a class action lawsuit. Judge Kearney finds that it is uncertain if all allegations are the Plaintiff's own experience. This is important because for a plaintiff to establish liability against a defendant, the plaintiff must have suffered some personal injury as a result of a defendant's unlawful actions. And without some injury to the plaintiff, there is no viable case or controversy. Judge Kearney then holds that the Plaintiff may amend his Complaint to cure the defects explained. The Plaintiff's Amended Complaint should: 1) name each party he believes deprived him of his constitutional rights and whom he wishes to sue in this action; 2) provide specific facts against each named Defendant in a simple, concise, and direct manner, including dates, times, and places if possible; 3) indicate whether he is suing each Defendant in his/her individual or official capacity, or in both capacities; 4) explain the reasons for an official capacity claim, if he makes one; 5) explain how each defendant's actions harmed him personally; 6) explain the relief he seeks; and 7) otherwise cure the defects explained above and set out viable claims. For these reasons, if the Plaintiff wishes to submit an Amended Complaint for the Court's review, he must file the Amended Complaint consistent with the instructions described within 30 days from the date of the Order. If he does not submit an Amended Complaint, Judge Kearney will recommend that his original Complaint, as amended, be dismissed. The Clerk of the Court is directed to mail the Plaintiff a blank 42 U.S.C. Section 1983 Complaint form. A full-text copy of the Court's Nov. 1, 2022 Order is available at https://tinyurl.com/4dw3cmr3 from Leagle.com. AUTO CLUB: Moore Suit Discovery Stayed Pending Summary Judgment Bid ------------------------------------------------------------------- In the case, NANCY MOORE, et al., Plaintiffs v. AUTO CLUB SERVICES, et al., Defendants, Case No. 19-10403 (E.D. Mich.), Judge Denise Page Hood of the U.S. District Court for the Eastern District of Michigan, Southern Division, grants the Defendants' Motion for Stay of Discovery Pending Resolution of Defendants' Motion for Partial Summary Judgment. The Plaintiffs filed a 28 U.S.C. Section 1332(d)(2) Class Action Complaint on Feb. 8, 2019, alleging that the Defendants underpaid the proper amount of attendant care benefits owed to the members of the class under Subsection 3107(1)(a) of the Michigan Automobile No-Fault Insurance Act. Following the Court's orders on the Defendants' motions to dismiss, one claim for unjust enrichment (Count III) remains before the Court. The Plaintiffs currently have no-fault personal injury protection claims filed with the Defendants and are receiving attendant care benefits. They have been receiving these benefits at least since 2005. Each of the Plaintiffs' attendant care benefits are being used to pay for family provided attendant care. All allegations in the Complaint are based on the Defendants' alleged "systematic underpayment of family provided/non-agency provided attendant care benefits through the use of a series of reports [referred to as the "P&M Surveys"] that the Defendants falsely claimed were valid surveys of commercial agency payment rates for attendant care providers. The Plaintiffs filed this action on behalf of themselves and all others similarly situated, a number that is undefined at this time. On July 27, 2022, the Court issued a scheduling order. On Sept. 21, 2022, the Defendants filed a Motion for Partial Summary Judgment asking the Court to limit the Plaintiffs' claims to the period on Feb. 8, 2018 due to the statute of limitations. On Sept. 22, 2022, the Defendants filed its Motion to Stay Discovery. The Defendants contend that a one-year statute of limitations applies to the Plaintiffs unjust enrichment claim, such that any claims prior to Feb. 8, 2018 would be barred and discovery should be limited accordingly. The Plaintiffs counter that there is a six-year statute of limitations and has requested discovery back to Feb. 8, 2013. Judge Hood addresses the merits of the Motion for Partial Summary Judgment in the future, but at this time, he finds that the interests of justice weigh in favor of deciding the Motion to Stay Discovery. She finds that the case has been delayed for a period of time already, and it is approximately three years old. Although the case does need to move forward, she does not find that an additional two-month delay will unfairly prejudice the Plaintiffs. It is very unlikely that any evidence will be lost during that time or that memories will change much during that time. Although it is possible that a witness may become deceased or unavailable in that two months, she says it is also possible that unavailable witnesses now may become available in the future. Judge Hood believes that resolution of the Defendants' summary judgment motion will clarify, if not simplify, the issues before the Court. If the Defendants are correct, the scope of discovery and factfinding will be greatly reduced. Even if the Defendants are not correct, it will guide the parties' discovery efforts and reduce the number of discovery issues. At a minimum, the Court's determination of the Motion for Partial Summary Judgment will resolve an issue that would necessarily have to be addressed with respect to discovery anyway. For these reasons, Judge Hood concludes that a stay of discovery pending the resolution of the motion for summary judgment is warranted. Accordingly, the Defendants' Motion to Stay Discovery is granted. A full-text copy of the Court's Oct. 28, 2022 Order is available at https://tinyurl.com/yckr9wvz from Leagle.com. BROOKS RUN: Seeks Dismissal of Wage Payment Class Action Lawsuit ---------------------------------------------------------------- Kyla Asbury, writing for West Virginia Record, reports that Brooks Run Mining Company wants a class-action lawsuit alleging wage payment violations against it dismissed for lack of subject matter jurisdiction. The complaint clearly fails to invoke the subject matter jurisdiction of the Court pursuant to U.S. code, the Oct. 5 reply in support of the motion to dismiss states. The court document states that there is no diversity jurisdiction and, as a result, the court lacks the subject matter jurisdiction to hear the matter and the case must be dismissed. All the plaintiffs in the class-action complaint worked for Brooks Run and were not timely paid, according to a complaint filed earlier this year in U.S. District Court for the Northern District of West Virginia. The plaintiffs, who are Robert McClung, Rocky Moore, James Ray and Steve Williams, claim Brooks Run Mining and William Abraham failed to timely pay them. They filed the class action because there are more than 100 employees that could be class members. "The common issues involved in this lawsuit predominate over any separate issues that may exist among individual Plaintiffs," the complaint states. The plaintiffs claim the defendants violated the West Virginia Wage Payment and Collection Act. State law requires that discharged employees be paid their wages in full no later than the next regular payday or within four business days from discharge, according to the suit. The plaintiffs were discharged on Oct. 9, 2019, and were not paid until Oct. 25, 2019. The plaintiffs claim they were damaged by the defendants' actions. The plaintiffs are seeking compensatory damages. They are represented by D. Adrian Hoosier II of Hoosier Law Firm in Charleston. The defendant is represented by Billy R. Shelton of Shelton Branham & Halbert in Lexington, Ky. U.S. District Court for the Northern District of West Virginia case number: 1:22-cv-00037 [GN] CALIFORNIA STATE: Court Denies Anders' Bid for Participation Data ----------------------------------------------------------------- In the case, TAYLOR ANDERS, et al., Plaintiffs v. CALIFORNIA STATE UNIVERSITY, FRESNO, et al., Defendants, Case No. 1:21-cv-00179-AWI-BAM (E.D. Cal.), Magistrate Judge Barbara A. McAuliffe of the U.S. District Court for the Eastern District of California denies the Plaintiffs' request for Title IX participation data for the 2021-22 academic year without prejudice as premature. Currently pending before the Court is an informal discovery dispute regarding the Plaintiffs' request for production of Title IX of the Education Amendments of 1972 participation data for the 2021-22 academic year. The parties filed informal discovery dispute letter briefs on Oct. 20, 2022, along with supplemental responses. Judge McAuliffe finds the matter suitable for decision without oral argument. Accordingly, the informal discovery dispute conference currently set for Nov. 2, 2022, is vacated. In October 2020, Fresno State announced that it would stop sponsoring women's lacrosse, men's wrestling and men's tennis at the end of the 2020-21 academic year. In February 2021, the Plaintiffs, members of Fresno State's women's lacrosse team during the 2020-21 academic year, filed a putative class action. The Plaintiffs alleged that the Defendants violated Title IX by failing to provide female students an equal opportunity to participate in varsity athletics, failing to provide female athletes with an equal allocation of financial aid, and failing to provide female athletes with benefits comparable to those provided to male athletes. They also filed a motion seeking a preliminary injunction barring Fresno State from cutting women's lacrosse or any other women's team and requiring Fresno State to treat the women's lacrosse team and its members fairly during the litigation. The Court granted the motion as to equal treatment of the lacrosse team but did not bar elimination of the women's lacrosse team. The Plaintiffs filed a first amended complaint on May 3, 2021, which included their effective accommodation claim, equal treatment claim and financial aid claim under Title IX. They alleged, among other things, that Fresno State has not provided females with opportunities to participate in intercollegiate athletics that are substantially proportionate to their undergraduate enrollment for years and that the condition will persist after the elimination of women's lacrosse, men's tennis and men's wrestling takes effect. The Defendants moved to dismiss the complaint in its entirety. On July 22, 2021, the Court denied their motion to dismiss as to the effective accommodation claim and the equal treatment claim and granted the motion, with leave to amend, as to the financial aid claim. Relevant in the instant motion, The Plaintiffs set forth four clusters of allegations relating to the question of substantial proportionality: (1) a cluster of allegations relating to Equity in Athletics Disclosure Act data; (ii) a cluster of allegations relating to Fresno State's claimed Titled IX counts for the 2019-20 academic year; (iii) a cluster of allegations relating to Fresno State's enrollment and participation projections for the 2021-22 academic year; and (iv) a cluster of allegations relating to counts prepared by the Board's expert, Timothy O'Brien, for the 2020-21 academic year. In ruling on the motion, Judge Ishii found that the first three clusters failed to state a cognizable effective accommodation claim. As to the fourth remaining cluster, he concluded that the Plaintiffs had adequately alleged an effective accommodation claim based on O'Brien's 2020-21 counts and participation gap calculation. The Plaintiffs filed a second amended complaint on Aug. 12, 2021, which again included an effective accommodation claim, equal treatment claim and financial aid claim under Title IX. The Defendants moved to dismiss the financial aid claim, which the Court granted with prejudice. In February 2022, the Plaintiffs moved for class certification of the following class: "All present and future women students and potential students at Fresno State who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics there." The Court denied the motion for class certification without prejudice, finding that the proposed class representatives did not satisfy the adequacy requirement under Federal Rule of Civil Procedure 23. The Plaintiffs filed a renewed motion for class certification on Aug. 30, 2022. For the effective accommodation claim, they seek certification of the following class: Current and future female Fresno State students who: (i) have lost membership on a women's varsity intercollegiate athletics team at Fresno State; (ii) have sought but not achieved membership on a women's varsity intercollegiate athletics team at Fresno State; and/or (iii) are able and ready to seek membership on a women's varsity intercollegiate athletics team at Fresno State but have not done so due to a perceived lack of opportunity. For the equal treatment claim, Plaintiffs seek certification of the following class: Current and future female Fresno State students who: (i) participate or have participated in women's varsity intercollegiate athletics at Fresno State; and/or (ii) are able and ready to participate in women's varsity intercollegiate athletics at Fresno State but have been deterred from doing so by the treatment received by female varsity intercollegiate student-athletes at Fresno State. The renewed motion is fully briefed and has been taken under submission by Judge Ishii. The Plaintiffs now request production of Title IX athletic participation data for the 2021-22 academic year. They argue that the requested discovery is (i) relevant, making their claims that Fresno State violated Title IX more likely to be true; (ii) proportional to the needs of the case; and (iii) is not unduly burdensome because Fresno State regularly maintains these records and has already produced the exact documents for the 2020-21 academic year. The Defendants object to production of a Title IX spreadsheet on two primary grounds. First, they assert that the Plaintiffs' effective accommodation claim based on the 2021-2022 academic year has been dismissed, referencing Judge Ishii's July 22, 2021 order, which found that the Plaintiffs' 2021-22 projections were insufficient to state an effective accommodation claim. Judge McAuliffe holds that the Defendants' assertion that the Plaintiffs' effective accommodation claim for the 2021-22 academic year has been dismissed is not wholly persuasive. In addition, he must construe the Second Amended Complaint liberally so as to do justice. The Plaintiffs' request for Title IX data for the 2021-22 year therefore appears relevant to the effective accommodation claim. Second, the Defendants argue that merits discovery is premature. Judge McAuliffe agrees that the Plaintiffs' request is premature while the Motion for Class Certification is pending. The Scheduling Order bifurcates discovery between class certification issues and merits discovery. While the parties may have engaged in some merits discovery during class certification, she says, the Defendants object to producing purely merits discovery at this procedural juncture. She sustains that objection and will deny the merits discovery based on the 2021-22 academic year at this time. For these reasons, the Plaintiffs' request for Title IX participation data for the 2021-22 academic year is denied without prejudice as premature. A full-text copy of the Court's Nov. 1, 2022 Order is available at https://tinyurl.com/4ebs95y5 from Leagle.com. CAROLINA LEASE: Bid to Dismiss Bland's Amended Complaint Granted ---------------------------------------------------------------- In the case, HANK BLAND, KENDELL JACKSON, and LUETTA INNISS, on behalf of themselves and all others similarly situated, Plaintiffs v. CAROLINA LEASE MANAGEMENT GROUP, LLC, CTH RENTALS, LLC, and OLD HICKORY BUILDINGS, LLC, Defendants, Case No. 4:22-CV-33-BO (E.D.N.C.), Judge Terrence W. Boyle of the U.S. District Court for the Eastern District of North Carolina, Eastern Division: a. denies as moot the Defendants' motion to dismiss the original complaint; b. grants the Defendants' motion to dismiss the amended complaint; and c. denies Defendant Old Hickory Buildings' motion to dismiss without prejudice. The Plaintiffs initiated the action by filing a complaint in the Superior Court for Craven County, North Carolina. The Defendants removed the action to this Court pursuant to its diversity jurisdiction and moved to dismiss the Plaintiffs' complaint. The Plaintiffs then filed an amended complaint, which the Defendants have also moved to dismiss. In their amended complaint, the Plaintiffs seek redress from purported "rent-to-own" transactions with defendants for storage sheds or portable buildings. They contend that these "lease" agreements are, in fact, "consumer credit sales" which include excessive finance charges in violation of North Carolina's Retail Installment Sales Act (NC RISA). The Plaintiffs, who filed the action as a putative class action, seek a declaratory judgment that the agreements at issue constitute consumer credit sales under NC RISA and that in using these agreements defendants have imposed, charged, or collected a finance charge in excess of what is permissible under the NC RISA; that the subject agreements are void under the NC RISA; that defendants imposed excessive finance charges. They further allege that the Defendants violated the North Carolina Unfair and Deceptive Trade Practices Act by using agreements that violate NC RISA; that the Defendants engaged in a civil conspiracy; that Defendant Carolina Lease Management Group engaged in unfair debt collection practices; and finally that the Defendants were engaged in a joint venture. The Defendants have moved to dismiss the Plaintiffs' amended complaint for failure to state a claim upon which relief can be granted because the claims are time-barred by the applicable statute of limitations. Defendant Old Hickory Buildings has also moved to dismiss the amended complaint, arguing that the Plaintiffs do not allege that it was a party to any of the rental agreements the Plaintiffs allege are void and unenforceable. At the outset, because the Plaintiffs have filed an amended complaint, Judge Boyle holds that the motion to dismiss the original complaint is moot. Turning to the Defendants' motion to dismiss the amended complaint, Judge Boyle concludes that the Plaintiffs' NC RISA claims are untimely as they were filed more than three years following their entry into the relevant agreements. Because the Plaintiffs' NC RISA claims are barred, their remaining claims fail as they are premised on the Defendants' alleged NC RISA violations. The amended complaint is therefore appropriately dismissed. Judge Boyle need not consider Old Hickory Buildings' separate Rule 12(b)(6) motion. He denies it without prejudice. The Clerk is directed to close the case. A full-text copy of the Court's Oct. 28, 2022 Order is available at https://tinyurl.com/4uje8kjf from Leagle.com. CBS CORP: Laborers Pension Trust to Declare No. of Submitted Claims ------------------------------------------------------------------- In the case, CONSTRUCTION LABORERS PENSION TRUST FOR SOUTHERN CALIFORNIA, GENE SAMIT and JOHN LANTZ, individually and on behalf of all others similarly situated, Plaintiffs v. CBS CORPORATION and LESLIE MOONVES, Defendants, Case No. 18-CV-7796 (VEC) (S.D.N.Y.), Judge Valerie Caproni of the U.S. District Court for the Southern District of New York ordered the Lead Plaintiff to submit a declaration setting forth the number of claims submitted to date. On Aug. 19, 2022, the Lead Plaintiff moved the Court for final approval of the class action settlement and plan of allocation but it did not indicate the number of claims submitted to date in its supporting memoranda or declarations. A full-text copy of the Court's Oct. 28, 2022 Order is available at https://tinyurl.com/4wyjbb6r from Leagle.com. CLOUDERA INC: Judge Tosses Class Action Over Securities Violations ------------------------------------------------------------------ Christina Tabacco, writing for Law Street, reports that in a 30-page opinion issued on Oct. 25, Judge Maxine M. Chesney dismissed the shareholders' securities law claims against Cloudera Inc. and its leaders and financial backers without leave to amend. The court said that the 42 statements proffered as proof of the company's misrepresentations about the viability of its data storage and processing platform were inactionable as either not misleading, puffery, or protected, forward-looking statements. Likewise, the plaintiffs' fraud claims failed to pass muster for inability to satisfy the securities laws' falsity requirement. The case dates to April 2017 when Cloudera announced an IPO. Later that year, it announced a secondary public offering. The plaintiffs note that in the latter offering, Cloudera's earliest venture capital backer and its co-founder and Chief Strategy Officer, collectively sold over $112 million of Cloudera stock at $15.79 per share. A year later, the company announced a merger with Hortonworks Inc., and touted it as a boon. According to plaintiffs, however, the merger was forced owing to insiders' knowledge that the company was facing stiff competition and customers were already moving their workloads to "actual cloud providers" like Amazon, Google and Microsoft. In early 2019, the merger closed. In June 2019, after announcing its "profoundly negative" first quarter financials, Cloudera's share price closed at $5.21 per share, a single day drop of approximately 40.8% on extraordinary trading volume. The shareholders claim the defendants knew the company was on thin ice, yet concealed material facts, causing them to lose money when the share price tumbled. In the opinion, Judge Chesney reviewed the statements alleged in the plaintiffs' second amended complaint as well as the findings of the previously assigned Judge Lucy H. Koh who dismissed the first complaint in 2021. Like the prior analysis, the opinion concluded that the statements were either forward-looking ones accompanied by meaningful cautionary language, and therefore immunized under the securities law's safe harbor provision, not actionable as statements of corporate optimism, or were not shown to have been false when made. For example, in assessing some of the 31 statements relating to cloud products, the court said the plaintiff's new argument about the meaning of certain product-specific terms, made without supporting facts, was unpersuasive. Conclusory allegations cannot lend support to the plaintiffs argument that to reasonable investors, "cloud-native" and "cloud architecture" would mean "that such offerings or capabilities had specific material attributes such as the use of containers, ease-of-use, seamless scalability, security and elasticity," the court explained. Additionally, the plaintiffs' fraud-based claims fell away for inability to satisfy the heightened pleading requirement, the opinion concluded. Citing the court's previous warning that failure to cure pleading deficiencies would result in dismissal with prejudice, the court denied leave to amend. The investors are represented by Kahn Swick & Foti LLP and Cloudera by Morrison & Foerster LLP and Munger, Tolles & Olson LLP. [GN] COMPASS GROUP: Baldwin Balks at Vending Machines' Two-Tier Pricing ------------------------------------------------------------------ Brian Baldwin, on behalf of himself and all others similarly situated, Plaintiff v. COMPASS GROUP USA, INC., D/B/A CANTEEN, Case No. 5:22-cv-03644-MGL (D.S.C., Oct. 20, 2022) is a class action brought by Plaintiff, individually and on behalf of a Class of similarly situated consumers, who have purchased items from Defendant's vending machines located in the State of South Carolina and been charged more than the amount displayed for those items, in violation of the South Carolina Unfair Trade Practices Act. The Defendant owns and operates vending machines which utilize a "two-tier" pricing structure for the products sold in the machines. A "two-tier" pricing structure means that a consumer is charged more for a product if the consumer elects to use a credit, debit or pre-paid card in lieu of paying cash for the product. Generally, the price for a credit, debit or prepaid card transaction is .10 cents higher than for a cash transaction, says the suit. By displaying the lower "Cash Price" on the machine and not informing the consumer that they will be charged the higher "Card Price" when paying with a card, Defendant deceives the consumer into paying a higher amount than listed. On information and belief, Defendant knew that many of its "two-tier" vending machines lacked labeling informing consumers that they would be charged a higher amount for purchases made with a card than the price listed on the machine, the suit asserts. Compass Group USA, Inc. retails prepared foods and drinks for on-premise consumption.[BN] The Plaintiff is represented by: Mark D. Chappell, Esq. Graham L. Newman, Esq. CHAPPELL, SMITH & ARDEN, P.A. 2801 Devine Street, Suite 300 Columbia, SC 29205 Telephone: (803) 929-3600 Facsimile: (803) 929-3604 E-mail: mchappell@csa-law.com gnewman@csa-law.com - and - Richard S. Cornfeld, Esq. Daniel S. Levy, Esq. LAW OFFICE OF RICHARD S. CORNFELD, LLC 1010 Market Street, Suite 1645 St. Louis, MO 63101 Telephone: (314) 241-5799 Facsimile: (314) 241-5788 E-mail: rcornfeld@cornfeldlegal.com dlevy@cornfeldlegal.com - and - Mike Arias, Esq. Robert Partain, Esq. Anthony Jenkins, Esq. ARIAS SANGUINETTI WANG & TORRIJOS, LLP 6701 Center Drive West, 14th Floor Los Angeles, CA 90045 Telephone: (310) 844-9696 Facsimile: (310) 861-0168 E-mail: robert@aswtlawyers.com mike@aswtlawyers.com anthony@aswtlawyers.com COMPASS GROUP: Borrero Balks at Vending Machines' Two-Tier Pricing ------------------------------------------------------------------ Andres Borrero, on behalf of himself and all others similarly situated, Plaintiff v. COMPASS GROUP USA, INC., D/B/A CANTEEN, Case No. 8:22-cv-02407-WFJ-MRM (M.D. Fla., Oct. 20, 2022) is a class action brought by the Plaintiff, individually and on behalf of a Class of similarly situated consumers, who have purchased items from the Defendant's vending machines located in the State of Florida and been charged more than the amount displayed for those items, in violation of the Florida Deceptive and Unfair Trade Practices Act. The Defendant owns and operates vending machines which utilize a "two-tier" pricing structure for the products sold in the machines. A "two-tier" pricing structure means that a consumer is charged more for a product if the consumer elects to use a credit, debit or pre-paid card in lieu of paying cash for the product. Generally, the price for a credit, debit or prepaid card transaction is .10 cents higher than for a cash transaction, says the suit. By displaying the lower "Cash Price" on the machine and not informing the consumer that they will be charged the higher "Card Price" when paying with a card, Defendant deceives the consumer into paying a higher amount than listed. On information and belief, Defendant knew that many of its "two-tier" vending machines lacked labeling informing consumers that they would be charged a higher amount for purchases made with a card than the price listed on the machine, the suit asserts. Compass Group USA, Inc. retails prepared foods and drinks for on-premise consumption.[BN] The Plaintiff is represented by: Edward H. Zebersky, Esq. Kimberly A. Slaven, Esq. ZEBERSKY PAYNE SHAW LEWENZ, LLP 110 Southeast 6th Street, Suite 2900 Fort Lauderdale, FL 33301 Telephone: (954) 989-6333 Facsimile: (954) 989-7781 E-mail: ezebersky@zpllp.com nesponda@zpllp.com - and - Richard S. Cornfeld, Esq. Daniel S. Levy, Esq. LAW OFFICE OF RICHARD S. CORNFELD, LLC 1010 Market Street, Suite 1645 St. Louis, MO 63101 Telephone: (314) 241-5799 Facsimile: (314) 241-5788 E-mail: rcornfeld@cornfeldlegal.com dlevy@cornfeldlegal.com - and - Mike Arias, Esq. Robert Partain, Esq. Anthony Jenkins, Esq. ARIAS SANGUINETTI WANG & TORRIJOS, LLP 6701 Center Drive West, 14th Floor Los Angeles, CA Telephone: (310) 844-9696 Facsimile: (310) 861-0168 E-mail: robert@aswtlawyers.com mike@aswtlawyers.com anthony@aswtlawyers.com DAKOTA 2000: Knight's Bid to Certify Collective Action Partly OK'd ------------------------------------------------------------------ In the case, AUSTON KNIGHT, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff v. DAKOTA 2000 INC., Defendant, Case No. 3:21-CV-03025-RAL (D.S.D.), Chief District Judge Roberto A. Lange of the U.S. District Court for the District of South Dakota, Central Division, grants in part the Plaintiff's Motion to Conditionally Certify an FLSA Collective Action and to Issue Notice. The Fair Labor Standards Act (FLSA) permits employees to bring their FLSA claims through a collective action on behalf of themselves and other "similarly situated" employees. Employees wishing to participate in the collective action must opt in by filing written consent with the Court. Mr. Knight filed this proposed collective action against Dakota 2000, alleging that it violated the FLSA by failing to pay overtime wages to him and other similarly situated employees. Dakota 2000 is a construction company specializing in structured cabling, general contracting, and oilfield work. Knight worked as a production flow-back supervisor at Dakota 2000's gas and oil worksites in North Dakota from approximately August 2018 to September 2019. In early 2022, Plaintiff Rodney Smith consented to join the case. Smith worked as an oil and gas production flow watch at Dakota 2000's worksites in North Dakota from approximately June 2018 to September 2019. Like Knight, Smith alleges that he often worked more than 40 hours per week on the hitch schedule, that Dakota 2000 nevertheless paid him only a day rate with no increase for overtime, and that Dakota 2000 subjected his coworkers to this same policy. Mr. Knight now moves for conditional certification, asking the Court to certify the following collective action: "All current and former non-exempt manual laborer employees of Defendant who were paid on a day rate basis without receiving overtime premium pay for all hours worked over forty in a workweek at any time within the three years prior to the date of the entry of an order from the Court granting Plaintiff's motion to the present." Mr. Knight also asks the Court to direct that notice of the collective action be sent to the potential plaintiffs and that Dakota 2000 produce the names and contact information for these plaintiffs. Dakota 2000 objects to any conditional certification of the proposed collective action. Judge Lange explains that courts created their own procedures for handling FLSA collective actions. The most popular of these is a two-step procedure sometimes called the "Lusardi approach." The first step of the Lusardi approach involves an initial review of whether a collective action is appropriate such that notice should be sent to potential plaintiffs. The second step of the Lusardi approach "occurs after notice, time for opting-in, and discovery have taken place." Judge Lange applies the Lusardi approach in the case as neither party argues for a different approach, the Lusardi approach makes sense, and most federal courts use it. Mr. Knight argues that he is similarly situated to Smith and the potential plaintiffs because they are all victims of Dakota 2000's policy or practice of failing to pay its day-rate employees overtime when they work over forty hours in a workweek. He claims that this practice is a per se violation of the FLSA, that Dakota 2000 therefore violated the FLSA rights of every putative plaintiff regardless of their job, and that liability can be determined collectively without limiting the class to a particular job position. Judge Lange opines that Knight has made the modest factual showing necessary for conditional certification. He also has made a sufficient showing that other similarly situated employees want to opt in to the collective action; Smith has already opted in, and it is reasonable to assume that at least some of the other flow-back employees identified in the affidavits and class list would desire to join the lawsuit. Dakota 2000 may ultimately be able to show that Knight and the other putative collective action members are not similarly situated; that will have to await a motion to decertify, however, when Dakota 2000 should offer evidence to support its arguments and explain why the differences between members matter. Judge Lange wants to hear from the parties on whether Knight's proposed collective action is too broad. Knight wants the collective action to encompass "all current and former non-exempt manual laborer employees of Defendant who were paid on a day rate basis without receiving overtime premium pay for all hours worked over forty in a workweek." His evidence, however, focuses on Dakota 2000's flow-back employees. Meanwhile, his proposed notice is directed to "oilfield workers paid a day rate." In short, Judge Lange wants to hear from the parties on what distinctions among Dakota 2000 employees exist for flow-back, oilfield, and manual labor employees. Judge Lange also has no issue with the proposed consent form, the methods of notice Knight requests, and his requests for the prepaid envelope, to have Dakota 2000 post the notice, a 90-day opt-in period, and the sending of a reminder. Knight did not submit a proposed reminder, however, and should do so before the hearing. Finally, Judge Lange is disinclined to require Dakota 2000 to produce the social security numbers of the potential opt-in plaintiffs. If Knight has trouble reaching certain potential opt-in plaintiffs, he may file a motion identifying these individuals, explaining why he has been unable to effectuate notice, and requesting additional information. For the reasons he stated, Judge Lange grants in part Knight's Motion to Conditionally Certify an FLSA Collective Action and to Issue Notice, pending a hearing. The parties must cooperate to schedule a hearing to address the pending issues identified in his Opinion and Order with the Court proposing a hearing date of Nov. 22, 2022. A full-text copy of the Court's Oct. 28, 2022 Opinion & Order is available at https://tinyurl.com/mpdtmuwm from Leagle.com. DREAMFIELDS BRANDS: Faces Class Action Over TCH Content Mislabeling ------------------------------------------------------------------- Lauren Silver, writing for KRMG, reports that a class action lawsuit filed in California accuses a cannabis company of intentionally mislabeling products to suggest a higher THC content. The complaint, filed by Dovel & Luner on behalf of Jasper Centeno and Blake Wilson, accuses the makers of "Jeeter" products of overcharging customers and violating consumer protection laws by selling products with a lower THC content than listed. California law requires cannabis products to display the item's THC content. THC is the primary psychoactive substance in cannabis, and is the chemical responsible for making people feel high. In the complaint, attorneys argue that the THC declared on the label of Jeeter's products is higher than other competitors, citing pre-rolled cannabis cigarettes that are listed as having a THC content in excess of 35%, but that independent testing revealed the actual amount of THC in the product is "far greater than the 10% margin of error" allowed by California law. In a news release announcing the lawsuit, Dovel & Luner said Jeeter overstates the amount of THC in its products by as much as 70-100%, and that by labeling its products with "inflated" numbers, the company is overcharging customers who are willing to pay more for a product with more THC. The lawsuit cites testing done by WeedWeek that found seven brands of prerolls in California were guilty of "potency inflation." In a statement, Jeeter said, "The allegations regarding our THC levels are false. We take pride in our compliance and commitment to state mandated testing procedures, including independent, third-party testing. The product and our integrity is something we truly value as a company, and take all the proper and legal steps before our product hits the shelves. We built this company with a foundation of morals, values and culture, and our love for cannibis . . . However baseless and ridiculous these claims are, we take them very seriously and look forward to the truth coming to light." [GN] FACILITY SOLUTIONS: Denial of Arbitration Bid in Mills Suit Upheld ------------------------------------------------------------------ In the case, CHRIS MILLS, Plaintiff and Respondent v. FACILITY SOLUTIONS GROUP, INC., Defendant and Appellant, Case No. B313943 (Cal. App.), the Court of Appeals of California for the Second District, Division Seven, affirms the trial court's order denying the FSG's motion to compel arbitration. Mr. Mills was employed by Facility Solutions Group (FSG) as an apprentice electrician from Oct. 2, 2018 to Aug. 27, 2019. FSG required new employees to access, review, and electronically sign documents, including an arbitration agreement. Mills reviewed FSG's onboarding documents using a cellphone application. On Oct. 5, 2018, Mills electronically signed a two-page, single-spaced arbitration agreement in small print titled "Employee Arbitration Agreement." On Nov. 23, 2020, Mills filed a complaint against his former employer, FSG, for disability discrimination and related causes of action under the Fair Employment & Housing Act (FEHA; Gov. Code, Section 12900 et seq.) (Mills v. Facility Solutions Group, Inc. (Super. Ct. L.A. County, 2020, No. 20STCV44744) (Mills I). The same month Mills filed this class action, on behalf of himself and other former and current employees, against FSG for Labor Code violations, which also included a claim under the Private Attorneys General Act of 2004 (PAGA; Labor Code, Section 2698, et seq.). On Feb. 8, 2021, the trial court in Mills I (Judge Daniel S. Murphy) granted FSG's motion to compel arbitration, finding the substantively unconscionable terms in the arbitration agreement could be severed from the agreement. FSG then moved to compel arbitration in this action under the same arbitration agreement. The trial court in this action (Judge Amy D. Hogue) denied FSG's motion, finding unconscionability permeated the arbitration agreement because it had a low to moderate level of procedural unconscionability and at least six substantively unconscionable terms, making severance infeasible. FSG timely appealed. On appeal, FSG contends claim and issue preclusion required the trial court in this action to enforce the arbitration agreement. It argues Judge Murphy's order compelling arbitration in Mills I adjudicated Mills's right to bring his employment claims in state court; Mills I and this action involve the same parties; and the order in Mills I was a final adjudication on the merits. FSG's contention lacks merit because Judge Murphy's order was not a final adjudication. However, the Court of Appeals holds that Judge Murphy's order granting FSG's motion to compel arbitration is not a final adjudication on the merits because an order compelling arbitration "'is not appealable, but is reviewable on appeal from a subsequent judgment on the award.'" Therefore, claim and issue preclusion do not apply. FSG also argues the arbitration agreement is not unconscionable, or in the alternative, the trial court abused its discretion in not severing any unconscionable terms. Neither contention has merit. The Court of Appeals agrees with the trial court the arbitration agreement is permeated with unconscionability, and the court cannot simply sever the offending provisions. Rather, it would need to rewrite the agreement, creating a new agreement to which the parties never agreed. Moreover, the Court of Appeals determines that upholding this type of agreement with multiple unconscionable terms would create an incentive for an employer to draft a one-sided arbitration agreement in the hope employees would not challenge the unlawful provisions, but if they do, the court would simply modify the agreement to include the bilateral terms the employer should have included in the first place. Although California law favors arbitration as an efficient means of resolving disputes, the courts have an obligation to ensure that private arbitration systems resolve disputes not only with speed and economy but also with fairness. Given the unfairness that permeates FSG's one-sided arbitration agreement, the Court of Appeals rules that the trial court did not abuse its discretion in declining to sever the substantively unconscionable terms. Therefore, the Court of Appeals affirms the order denying the motion to compel arbitration. Mills will recover his costs on appeal. A full-text copy of the Court's Nov. 1, 2022 Order is available at https://tinyurl.com/mukj7tpm from Leagle.com. CDF Labor Law, Mark S. Spring -- mspring@cdflaborlaw.com -- and Lindsay A. Ayers -- layers@cdflaborlaw.com -- for the Defendant and Appellant. Berenjie Law Firm, Shadie L. Berenji -- berenji@employeejustice.law -- and David C. Hopper -- hopper@employeejustice.law -- for the Plaintiff and Respondent. FAT BRANDS: Awaits Initial Approval of $2.5M Securities Suit Deal ----------------------------------------------------------------- FAT Brands Inc. disclosed in its Form 10-Q Report for the quarterly period ended September 25, 2022, filed with the Securities and Exchange Commission on October 21, 2022, that it is awaiting results of the preliminary approval hearing of a $2.5 million settlement of the consolidated class action captioned In re FAT Brands Inc. Securities Litigation. On March 18, 2022, plaintiff Robert J. Matthews, a putative investor in the Company, filed a putative class action lawsuit against the Company, Andrew Wiederhorn, Ron Roe, Rebecca Hershinger and Ken Kuick, asserting claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), alleging that the defendants are responsible for false and misleading statements and omitted material facts in the Company's reports filed with the SEC under the 1934 Act related to the LA Times story published on February 19, 2022 about the company and its management. The plaintiff alleges that the Company's public statements wrongfully inflated the trading price of the Company's common stock, preferred stock and warrants. The plaintiff is seeking to certify the complaint as a class action and is seeking compensatory damages in an amount to be determined at trial. On April 25, 2022, Kerry Chipman, a putative investor in the Company, filed a putative class action lawsuit against the Company, Andrew Wiederhorn, Ron Roe, Rebecca Hershinger and Ken Kuick in the United States District Court for the Central Division of California, asserting substantially the same claims as those made by Matthews in the above-referenced lawsuit. On May 2, 2022, the Court entered an order consolidating the actions filed by Matthews and Chipman under the caption In re FAT Brands Inc. Securities Litigation. On June 13, 2022, the Court appointed plaintiff Robert Matthews as lead plaintiff and The Rosen Law Firm, P.A., as lead counsel in the consolidated action. Plaintiffs filed their Consolidated Amended Complaint on June 27, 2022. On July 19, 2022, the parties entered into a stipulation to stay the litigation so that they can engage in voluntary mediation. In August 2022, after mediation the Company reached an agreement in principle to settle this matter for a cash payment by the Company of $2.5 million and issuance of $0.5 million in Class A common stock. The Stipulation of Settlement and other documents pertinent to the settlement, along with a motion for preliminary approval thereof, were filed with the court on September 23, 2022. The hearing on the motion for preliminary approval is set for October 24, 2022, at 9:00 am PT. Upon final approved by the court, the settlement will provide a full release of all claims by the settlement class members against all defendants, including the Company and the named officers and directors, will expressly deny any liability, wrongdoing or responsibility by any of the defendants, and will result in the dismissal of the litigation with prejudice. FAT Brands is an American multi-brand restaurant operator headquartered in Beverly Hills, California. HAUDENOSAUNEE DEVELOPMENT: Breach Suit Moves Towards Certification ------------------------------------------------------------------ Two Row Times reports that a group of Six Nations members who filed a class action lawsuit on behalf of the Haudenosaunee people against the Haudenosaunee Development Institute say that after a pandemic delay through the courts, the case is now moving forward towards certification. In September 2016, Wilfred Davey and Bill Monture filed the class-action lawsuit against the Haudenosaunee Development Institite, its Directors Hazel Hill (who has since resigned her position), Brian Doolittle and Aaron Detlor; the HDI's numbered Ontario Corporation 2438543 Ontario Inc; it's financial management corporation Ogwawista Dedwahsnye Inc. and it's then Director Elvera Garlow. The case was put on hold through the pandemic and the retirement of the assigned judge, Ontario Justice R.A. Lococo, who was the only class-action justice in the region also prompted a delay. Now the courts are seeking a new judge and, once assigned, Davey says the case is expected to move into the next phase of examination. "We were notified two months ago that they were setting a new date to be heard," said Davey. "We're not deterring from the original plan." In 2018, Justice Lococo ruled the case has merit to hear arguments on four of the claims being made: breach of trust, breach of fiduciary duty, negligent or fraudulent misrepresentation and oppression. The claim alleges Detlor, Doolittle and Hill created the HDI to accept money from developers in exchange for consent -- and then subsequently created a numbered Ontario corporation to accept the funds and then "to purchase Haudenosaunee land and divert funds properly belonging to the Chiefs Council and the Haudenosaunee people." The claim alleges Detlor, Hill and Doolittle "breached their fiduciary duty to act honestly, loyally and in good faith" for funds they managed under 2438543 Ontario Inc.. Documents obtained by TRT show that numbered corporation was started in 2014 and was delegated the responsibility of the HCCC's 8 points of jurisdiction and the 50 chieftainship titles of the Haudenosaunee traditional governance system -- bringing both under Ontario's jurisdiction. It was that incorporation process itself that drew the most criticism from Six Nations members who follow the traditional governance system -- saying the chiefs titles and the 8 points of jurisdiction belong to the people, not HDI -- and that HCCC did not have the authority to direct HDI to bring those two traditional governance pieces under the jurisdiction of the province of Ontario or an Ontario corporation. According to HDI, the numbered Ontario corporation was to be considered a vehicle by which the HCCC could enter into contracts and receive money for agreeing to give consent to developers who are required to speak to them under Ontario's processes -- whenever anyone seeks to develop 1701 treaty lands, also known as the Dish with One Spoon territory. In at least one of those contracts, the language states the money the numbered company receives would be used for the benefit of the Haudenosaunee people. In exchange, the HDI agreed that the Haudensaunee Confederacy Chiefs Council would surrender the application of sovereign immunity regarding the project and would actively prevent Six Nations members from opposing the development for the duration of it's operations. Additional claims in the lawsuit allege a breach of fiduciary duty by Elvera Garlow as director of HDI's federal financial management corporation known as Ogwawista Dedwahsnye Inc. HCCC's lawyer Aaron Detlor is also being sued for breach of contract and breach of fiduciary duty. Lococo writes the plaintiffs claim Detlor was retained by the HCCC to act as their lawyer with respect to development projects on Haudenosaunee land and that Detlor had a responsibility to act in good faith. The plaintiffs say they suffered damages as a result of Detlor breeching that contract. Additional claims against the HDI and its officials allege the numbered company, Ogwawista and the individual directors engaged in fraudulent misrepresentation of the Haudenosaunee people and have added an additional claim of Oppression. The relief from oppression claim is specifically against 2438543 Ontario Inc. under the Ontario Business Corporations Act -- which protects an entities shareholders against prejudice and prevents corporations from disregarding their interests. The plaintiffs say all of the Haudenosaunee people are shareholders according to the corporations construction, and that they relied on the defendants to "protect the rights of the class but instead, the defendants misappropriated the funds." HDI's lawyers sought to have all of the mentioned claims tossed but were unsuccessful. Lococo disagreed writing in his judgement that he does not agree "that it is plain and obvious that the plaintiffs' claim has no reasonable chance for success". None of the claims have been proven in court, however it is now seeking certification as a class action. In his decision from 2018, Justice Lococo writes that the plaintiffs are seeking $50 million in damages for the proposed class members, referred to in the claim as "the Haudenosaunee People". In 2019, HDI and defendants were ordered to pay the costs of the trial expenses to date -- coming up to a total of $15,500, which they did in March 2019. [GN] HEWLETT-PACKARD CO: Faces Class Action Over Laptop Battery Defects ------------------------------------------------------------------ Corrado Rizzi, writing for ClassAction.org, reports that a proposed class action alleges the tests HP uses for its lithium-ion laptop batteries overlook key failure precursors and certain defects introduced during manufacturing. The 11-page complaint claims that although HP represents that the component parts of its Pavilion 15 Series laptops are adequate and will function reliably for a reasonable period of time, the company fails to test its lithium-ion batteries, comprised of two electrodes, two current collectors, an electrolyte and a separator, for structural cell defects, electrode overhang, tab burrs, morphological defects, high electrical current drain rates, and other problems that can slash a machine's lifespan. Ultimately, the value of HP's Pavilion 15 Series laptops equipped with lithium-ion batteries is materially less than the company represents, the case alleges. The plaintiff, a Florida consumer, alleges the lithium-ion battery in his HP laptop failed prematurely and degraded after only "several months of normal usage." More specifically, the lawsuit says that HP's battery testing methods are limited to electrochemical characterization, with a focus on macroscopic battery performance, and not "the occurrence of other defects which could and did cause battery failures." These tests, the suit argues, overlook failure precursors and defects introduced during the manufacturing process, including "raw electrode material processing, cell grading and battery pack assembling." Per the complaint, structural battery cell defects from manufacturing can cause "acute failure, chronic degradation, inferior electrochemical performance and overheating." The electrode preparation process, for instance, can produce non-uniform coating of an electrode on a current collector, pinhole defects, and blisters or agglomerates, which can lead to substandard battery capacity, increased impedance, higher degradation rate, and reduced useful life, the lawsuit states. Similarly, electrode overhang will lead to dendrite growth and eventual short circuits, and a tab burr could occur if the welding on a battery is not exact, the filing says. "Though material impurities and contaminants introduced during manufacturing may not cause failure, they can provoke catastrophic cell damage during cycling and can affect the battery's resistance, reducing its usable lifespan," the case reads. According to the suit, high electrical current drain rates can increase battery temperature, which in turn causes the electrolyte to decompose, leading to more rapid consumption of active lithium and a reduction in cathode performance. "By failing to utilize available testing procedures to focus on the above issues, users have a greater chance of buying laptops with battery performance issues, unconnected to their usage patterns," the complaint argues. The lawsuit looks to cover consumers in Florida, Georgia, South Carolina, New Mexico, Alaska, Iowa, Tennessee and Virginia who bought an HP Pavilion 15 Series laptop equipped with a lithium-ion battery during the applicable statute of limitations period. [GN] HINO MOTORS: GMP Law Enters Into Co-Counsel Arrangement with LCHB ----------------------------------------------------------------- Lauren Croft, writing for LawyersWeekly, reports that a major US plaintiff firm has joined forces with Gerard Malouf & Partners as part of the ongoing Hino class action case. Gerard Malouf & Partners (GMP Law) has entered a co-counsel arrangement with Lieff Cabraser Heimann & Bernstein LLP (LCHB) in relation to the action against Toyota subsidiary Hino Motors Australia and parent company Hino Motors Limited. The claim, which seeks compensation for purchasers of Hino vehicles over a 20-year period, represents all purchasers or lessees of affected Hino vehicles in Australia, which were the subject of misconduct in relation to the certification in Japan from as early as 2003. The law firm began investigating the class action in August, following reports that parent company Hino Motors Japan falsified emissions and fuel economy data -- affecting at least 115,526 trucks sold since 2016. LCHB is currently running parallel legal proceedings against Hino USA and Hino Japan in Federal Court in the US, in the Southern District of Florida. The misconduct has now been admitted by the companies in respect to numerous Hino vehicles. GMP Law claims that the misconduct in relation to emissions and fuel economy of Hino vehicles has caused not only financial loss to consumers of these vehicles but also environmental damage and damage to human health through excess emissions. David Cossalter, managing partner of GMP Law, said that the two firms would work together on the US and Australian proceedings. "This is a significant win for consumers affected by Hino," he said. "The two firms with parallel proceedings against Hino working together will create synergies that better support both cases and achieve better outcomes for all those affected by Hino's appalling misconduct, in Australia and the US." Additionally, proceedings have been filed in the Supreme Court of Victoria against Toyota Motor Corporation Australia Limited for alleged tampering with emissions control systems to improve the performance of diesel engines. That class action, dubbed "one of the biggest claims in Australia's legal history" could result in up to half a million eligible vehicle owners receiving tens of thousands of dollars in compensation, according to the law firm running the case, Maddens. [GN] INNOCOLL HOLDINGS: $2.755M Securities Class Suit Deal Has Final Nod ------------------------------------------------------------------- In the case, IN RE INNOCOLL HOLDINGS PUBLIC LTD. CO. SEC. LITIG., Civil Action No. 17-341 (E.D. Pa.), Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania grants Lead Plaintiffs Russel Bleiler and Carl Bayney's unopposed motion for final approval of the class action settlement and plan of allocation under Federal Rule of Civil Procedure 23(e), and their unopposed motion for an award of attorneys' fees, reimbursement of litigation expenses, and compensatory awards to the Lead Plaintiffs. Over the course of its five-year lifetime, the class action litigation has absorbed thousands of attorney hours and likely demanded considerable litigation costs, but, finally, a conclusion is in sight. Shareholders sued pharmaceutical company Innocoll in 2017, claiming that it had misrepresented a new product's chances of success in the Food and Drug Administration's approval process. Innocoll is a pharmaceutical company that specializes in collagen technologies, making its initial public offering ("IPO") in July 2014. In its amended registration statement for its IPO, Innocoll described the progress of clinical trials for XaraColl, a collagen sponge implant that contains pain medicine and is placed in surgical sites to relieve post-surgery pain. In November 2016, Innocoll announced that it had submitted the NDA for XaraColl. On Dec. 29, 2016, Innocoll issued a press release explaining that the FDA had issued a "Refusal to File" letter for XaraColl. Over four years later, the parties reached a settlement agreement in principle: Innocoll would pay $2.755 million to the shareholders, and, in exchange, the shareholders would release all claims against Innocoll relating to the alleged misrepresentations. Under the Settlement notice program, claims administrator Strategic Claims Services ("SCS") established a webpage, accessible at all times, which provided information relevant to the Settlement, including the current status of the Settlement, case deadlines, the online claim filing link, and the exclusion request form. SCS also maintained a toll-free telephone number through which potential settlement class members could seek further information or request the notice and claim form. The deadlines for settlement class members to submit claims, request exclusion from the Settlement, and object to the Settlement were June 6, 2022, June 15, 2022, and June 22, 2022 respectively. Potential Settlement class members submitted 682 claim forms, of which 123 claims were valid. No member of the settlement class objected to final approval, attorneys' fees, reimbursement of out-of-pocket expenses, or compensatory awards to the lead plaintiffs. Under the Settlement's plan of allocation, which was formulated by lead counsel with the assistance of an experienced financial consultant, SCS will calculate class members' recognized loss based on the time the Innocoll securities were purchased and sold, the purchase and sale price of the securities, and the estimated inflation of the price of the securities at the of purchase and sale. The Settlement amount will then be allocated to approved claimants on a pro rata basis, accounting for each class member's recognized loss. The Court preliminarily approved the settlement on March 10, 2022, pending a final approval hearing that took place on July 6, 2022. The Lead Plaintiffs filed a motion for an award of attorneys' fees, reimbursement of litigation expenses, and compensatory awards. The Lead Counsel seek an award of one third of the Settlement, or $918,333. The Lead counsel also seek reimbursement of $296,111.74 in litigation expenses, most of which was incurred in retaining an expert who provided evidence in support of the Plaintiffs' motion for class certification. Finally, Mr. Bleiler and Mr. Bayney seek compensatory awards of $10,000 each for their dedication to pursuing this claim on behalf of the class. Judge Pratter finds that (i) final class certification for settlement is appropriate; (ii) the notice program provided Settlement class members the best notice that is practicable under the circumstances; (iii) the settlement and the plan of allocation are fair, reasonable, and adequate; (iv) the requests for attorneys' fees and reimbursement are reasonable; and (v) both Mr. Bleiler and Mr. Bayney have adequately and diligently attended to this litigation since it began over five years ago. For these reasons, Judge Pratter finally approves the Settlement and the plan of allocation. She awards attorneys' fees of one-third of the Settlement, reimbursement of litigation expenses of $296,111.74, and compensatory awards of $10,000 to both Lead Plaintiffs. An appropriate order follows. A full-text copy of the Court's Oct. 28, 2022 Memorandum is available at https://tinyurl.com/4zkhsku8 from Leagle.com. INNOCOLL HOLDINGS: Order & Final Judgment Issued in Securities Suit ------------------------------------------------------------------- Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania enters Order and Final Judgment in the case, IN RE INNOCOLL HOLDINGS PUBLIC LTD. CO. SEC. LITIG., Civil Action No. 17-341 (E.D. Pa.). The Court has considered the Lead Plaintiffs' Motion for Final Approval of the Class Action Settlement and Plan of Allocation and any supplements thereto; the Lead Plaintiffs' Motion for an Award of Attorneys' Fees, Reimbursement of Litigation Expenses, and Compensatory Awards to Lead Plaintiffs and any supplements thereto; the Stipulation of Settlement dated Nov. 24, 2021, and the Court's March 10, 2022 Memorandum and Order granting preliminary settlement class certification and preliminary approval of the class settlement, as well as the July 6, 2022 fairness hearing and the supplemental brief of the Lead Plaintiffs. The Settlement Class is being certified for settlement purposes only. Judge Pratter finally certifies the action as a class action for purposes of the Settlement, pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, on behalf of all persons and entities who purchased or otherwise acquired Innocoll securities between July 25, 2014, and Dec. 29, 2016, both dates inclusive (Settlement Class Period), and were damaged thereby. The Lead Plaintiffs are certified as the class representatives and the Class Counsel previously selected by the Lead Plaintiffs and appointed by the Court are appointed as the Class Counsel. The Settlement is approved as fair, reasonable and adequate under Rule 23 of the Federal Rules of Civil Procedure, and in the best interests of the Settlement Class. The Action and all claims contained therein, as well as all of the Released Claims, are dismissed with prejudice as against Defendants and the Released Parties. The Settling Parties are to bear their own fees and costs, except as otherwise provided in the Settlement Stipulation. The Clerk of Court is directed to mark the case closed for all purposes, including statistics. The Releasing Parties, on behalf of themselves, their successors and assigns, and any other Person claiming (now or in the future) through or on behalf of them, will be deemed to have, and by operation of the Order and Final Judgment will have, fully, finally, and forever released, relinquished, and discharged all Released Claims against the Released Parties. The Class Counsel is awarded attorneys' fees in the amount of $918,333, and expenses in the amount of $296,111.74, such amounts to be paid out of the Settlement Fund five Business Days following entry of the Order. The Class Counsel will thereafter be solely responsible for allocating the attorneys' fees and expenses among other Plaintiffs counsel in the manner in which the Class Counsel in good faith believes reflects the contributions of such counsel to the initiation, prosecution, and resolution of the Action. In the event that this Judgment does not become Final, and any portion of the Fee and Expense Award has already been paid from the Settlement Fund, the Class Counsel and all other plaintiffs' counsel to whom the Class Counsel has distributed payments will within 10 Business Days of entry of the order or notice rejecting the Settlement and/or Judgment, terminating the Settlement, or precluding the Effective Date from occurring, refund the Settlement Fund the Fee and Expense Award paid to Class Counsel and, if applicable, distributed to other counsel. The Lead Plaintiffs are awarded in total $20,000 or $10,000 each, as a Compensatory Award for reasonable costs and expenses directly relating to the representation of the Settlement Class, such amounts to be paid from the Settlement Fund upon the Effective Date of the Settlement. The Class Counsel and the Claims Administrator are directed to administer the Plan of Allocation in accordance with its terms and the terms of the Settlement Stipulation. Except as otherwise provided in the Order and Final Judgment or in the Settlement Stipulation, all funds held by the Escrow Agent will be deemed to be in custodia legis and will remain subject to the jurisdiction of the Court until such time as the funds are distributed or returned pursuant to the Settlement Stipulation and/or further order of the Court. Without affecting the finality of the Order and Judgment in any way, the Court retains continuing exclusive jurisdiction over the Settling Parties and the Settlement Class Members for all matters relating to the Action. There is no just reason for delay in the entry of this Order and Final Judgment and immediate entry by the Clerk of the Court is expressly directed. A full-text copy of the Court's Oct. 28, 2022 Order & Final Judgment is available at https://tinyurl.com/bddadmxy from Leagle.com. LABTOX LLC: Court Refuses to Approve Settlement in Johnson Suit --------------------------------------------------------------- In the case, ANGEL JOHNSON, Plaintiff v. LABTOX, LLC, et al., Defendants, Civil Action No. 5:22-019-DCR (E.D. Ky.), Chief District Judge Danny C. Reeves of the U.S. District Court for the Eastern District of Kentucky, Central Division, Lexington, denies the parties' joint motion for approval of their settlement agreement. Ms. Johnson filed the action on Jan. 27, 2022, alleging that the Defendants failed to properly compensate her and other hourly employees for all the time they worked in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sections 201, et seq., and the Kentucky Wage and Hour Act ("KWHA"). LabTox is a toxicology and molecular laboratory that performs urine drug screens and diagnostic testing. In 2018, Mountain Comprehensive Care Center, Inc. ("MCCC") and LabTox entered into a business relationship whereby LabTox agreed to provide and administer drug screens for individuals participating in substance abuse programs at MCCC's outpatient clinic in Owensboro. Johnson applied for and was awarded a position to collect urine samples and administer drug screens ("collector position") at LabTox in January 2019. Ms. Johnson spent her workweeks in her positions as a collector for LabTox and mental health associate for MCCC. The parties appear to agree that Johnson can prevail on her wage and hour claims only if MCCC and LabTox are deemed to be her joint employers. The Defendants maintain that they were not joint employers based on the following facts: they exercised independent discretion with respect to personnel actions; they maintained separate payroll systems; they had separate supervisory staff; and they did not share any common ownership. Accordingly, the parties have sufficiently demonstrated that a bona fide dispute exists in the case. On April 29, 2022, MCCC and Kenneth Stein filed a motion to strike Johnson's collective/class action claims, arguing that only Johnson and one other individual worked for both Defendants during the relevant period. LabTox filed a separate motion joining MCCC and Stein's motion to strike. Subsequent settlement discussions were fruitful, and the parties tendered a notice of settlement on Sept. 8, 2022. The parties have now filed a joint motion for approval of their agreement to settle Johnson's claims for $9,494.08, plus $10,505.92 in attorneys' fees and expenses, for a total of $20,000. The Sixth Circuit has identified seven factors that should assist a court in determining whether settlement is fair, reasonable, and adequate: (1) the risk of fraud or collusion; (2) the complexity, expense, and likely duration of litigation; (3) the amount of discovery the parties have engaged in; (4) the likelihood of success on the merits; (5) the opinions of class counsel and representatives; (6) the reaction of absent class members; and (7) the public interest. It has recognized that the most important factor to be weighed is the likelihood of success on the merits. Judge Reeves finds that settlement amount is reasonable, particularly in light of the Defendants' unrebutted factual assertions indicating they did not act as Johnson's joint employers. He also finds that the requested hourly rate ($146.79), as well as the total amount of expenses and fees, is fair and reasonable. However, Judge Reeves finds that the parties' proposed settlement agreement includes a confidentiality clause. The confidentiality provision states explicitly that it is a "material term" of the Settlement Agreement. Therefore, because the parties have not provided factual or legal justification for what appears to be an impermissible term, the Agreement will be rejected in its entirety. Based on the foregoing, the joint motion for settlement approval is denied. Within 14 days the parties are directed to tender a status report or a renewed joint motion for settlement approval consistent with the Memorandum Opinion and Order. A full-text copy of the Court's Nov. 1, 2022 Memorandum Order & Opinion is available at https://tinyurl.com/bdevmv5z from Leagle.com. LAS VEGAS SANDS: Bid to Dismiss Daniels Family Trust Suit Pending ----------------------------------------------------------------- Las Vegas Sands Corp. (LVSC) disclosed in its Form 10-Q for the quarterly period ended September 30, 2022, filed with the Securities and Exchange Commission on October 21, 2022, that its motion to dismiss a second amended complaint filed in the case captioned The Daniels Family 2001 Revocable Trust v. LVSC, et al., remains pending. On October 22, 2020, The Daniels Family 2001 Revocable Trust, a putative purchaser of the Company's shares, filed a purported class action complaint in the U.S. District Court against LVSC, Sheldon G. Adelson and Patrick Dumont. The complaint asserts violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and alleges that LVSC made materially false or misleading statements, or failed to disclose material facts, from February 27, 2016 through September 15, 2020, with respect to its operations at the Marina Bay Sands, its compliance with Singapore laws and regulations, and its disclosure controls and procedures. On January 5, 2021, the U.S. District Court entered an order appointing Carl S. Ciaccio and Donald M. DeSalvo as lead plaintiffs ("Lead Plaintiffs"). On March 8, 2021, Lead Plaintiffs filed a purported class action amended complaint against LVSC, Sheldon G. Adelson, Patrick Dumont, and Robert G. Goldstein, alleging similar violations of Sections 10(b) and 20(a) of the Exchange Act over the same time period of February 27, 2016 through September 15, 2020. On March 22, 2021, the U.S. District Court granted Lead Plaintiffs' motion to substitute Dr. Miriam Adelson, in her capacity as the Special Administrator for the estate of Sheldon G. Adelson, for Sheldon G. Adelson as a defendant in this action. On May 7, 2021, the defendants filed a motion to dismiss the amended complaint. Lead Plaintiffs filed an opposition to the motion to dismiss on July 6, 2021, and the defendants filed their reply on August 5, 2021. On March 28, 2022, the U.S. District Court entered an order dismissing the amended complaint in its entirety. The U.S. District Court dismissed certain claims with prejudice but granted Lead Plaintiffs leave to amend the complaint with respect to the other claims by April 18, 2022. On April 8, 2022, Lead Plaintiffs filed a Motion for Reconsideration and to Extend Time to File the Amended Complaint, requesting the U.S. District Court reconsider certain aspects of its March 28, 2022 order, and to extend the deadline for Lead Plaintiffs to file an amended complaint. The defendants filed an opposition to the motion on April 22, 2022. On April 18, 2022, Lead Plaintiffs filed a second amended complaint. On May 18, 2022, the defendants filed a motion to dismiss the second amended complaint. Lead Plaintiffs filed an opposition to the motion to dismiss on June 17, 2022, and the defendants filed their reply on July 8, 2022. This action is in a preliminary stage and management has determined that based on proceedings to date, it is currently unable to determine the probability of the outcome of this matter or the range of reasonably possible loss, if any. The Company intends to defend this matter vigorously. Las Vegas Sands Corporation is an American casino and resort company with corporate headquarters in Paradise, Nevada, United States. MARYLAND: Police Officers File Racial Discrimination Class Action ----------------------------------------------------------------- The Associated Press reports that three Maryland State Police officers have filed a proposed federal class-action lawsuit against the department, alleging widespread racial discrimination in the agency. The lawsuit, filed on Oct. 24 in U.S. District Court in Greenbelt, alleges that the state police disciplines officers of color more harshly than white officers. The 36-page complaint alleges that the state police agency, or MSP, also denied promotions and retaliated against officers of color who spoke out against how they are treated. It also alleges that the agency maintained a hostile work environment by subjecting officers of color to "racist comments and symbols such as using a paper training dummy at a MSP shooting range with a black face and 'Afro wig' for officers to shoot at." The force is currently under investigation. The U.S. Department of Justice announced in July that it was conducting a probe of whether the agency's hiring and promotion practices are racially discriminatory. The lawsuit proposes a class made up of officers of color who were disciplined, denied promotions or otherwise discriminated against from October 2019 to the present day. A judge would have to approve the group before the lawsuit could move forward as class action litigation. The plaintiffs are Byron Tribue and Matin Dunlap, Black men who are currently officers with the agency, and Analisse Diaz, a Black Puerto Rican woman who was terminated by the department in 2019. In a statement, the police agency said the complaint is under legal review and the department cannot share information about the allegations in the lawsuit. "The Maryland Department of State Police remains committed to providing the highest quality of law enforcement services to the people of Maryland, while ensuring the fair and equitable treatment of all employees. Significant actions have been taken and are continuing to address even the perception of racism or unfair treatment of any kind. "The complaint was received late last night and is currently under legal review. The department is unable to share information pertaining to the allegations in the complaint at this time. "The dedicated troopers and civilian employees of the department will continue to serve and protect the people of our state with the highest integrity, fairness and selfless service." The complaint alleges that Tribue has been subjected to discrimination and retaliation by the department, including being suspended for 301 days for an alleged one-hour error in recording his time card, and being denied promotions during the course of his employment with the agency. The court filing also alleges that the department retaliated against Dunlap after he complained that a white corporal placed a banana on his work vehicle. The corporal was not disciplined and has been repeatedly promoted, according to the complaint. The complaint alleges that Diaz has been subjected to discrimination, including her termination after eight years as a state trooper. "Throughout her time at MSP, Officer Diaz faced a work environment permeated with racism," the complaint said. "For example, Officer Diaz's first sergeant told her that he did not think it was a 'big deal' to say the 'n-word' or words to that effect." The complaint cited another occasion when Diaz was cleaning something in a barrack, when she was told that the state police "should hire her as the cleaning staff." The Maryland U.S. Attorney's Office announced in July that the Justice Department opened a civil pattern or practice investigation into the Maryland State Police to assess whether the department has engaged in racially discriminatory hiring and promotion practices.[GN] MAZDA MOTOR: Final Pretrial Brief in Water Pump Suit Set March 2023 ------------------------------------------------------------------- John Hanson, Esq., in an article for LegalScoops, reports that consumers certified a class action lawsuit against Mazda in federal district court in the Central District of California on behalf of individuals who purchased, owned, or leased a Mazda CX-9 (2007-2016) and Mazda 6 (2009-2013) and who reside in certain states. The complaint alleges that hundreds of thousands of Mazda vehicles, with the MZI Cyclone engine, have a defect that causes the internal water pump to suddenly and prematurely fail well-before the end of the useful life of the engine, leading to catastrophic engine failure or a costly replacement. The complaint alleges that despite knowing of this defect, Mazda continued selling defective vehicles, failed to disclose the defect to owners and lessees, has not issued a water pump recall, and has not remedied the issue or compensated owners and lessees of the defective vehicles. Current or former owners of these vehicles should be aware that the California lemon law and other state and federal laws, including in the states referenced above, may force Mazda to either "buy the vehicle back," or provide other important compensation for those experiencing the water pump engine defect. Under California's lemon law, qualifying "lemons" must be bought back, and that can mean a large cash refund and payoff of your loan or lease. The refund could be as much as everything you paid for the vehicle and everything you owe: monthly payments, down payments, tax, finance charges, license, and registration. You could even qualify for two-times your money back, depending on the circumstances. What Mazda would have to buy it for has nothing to do with how much the vehicle is currently worth. There is a formula in the law, that starts with you getting all your money back, and then taking certain deductions and exclusions away from your payment. Those refunds and exclusions are difficult to understand and can be fought against by knowledgeable consumer attorneys. Watch the mail, watch your email, and contact a consumer lawyer for advice when and if the case settles. You have the option of bringing your own claim and opting out of the class action lawsuit. We are available to help you sort through these questions and make an informed decision. For a free lemon law consultation fill out the form below or call us at 1-855-OPT-OUT1 (1-855-678-6881). Status of Mazda Water Pump Class Action Lawsuit A class action lawsuit over this issue was filed the United States District Court for the Central District of California on June 28, 2019, titled Sonneveldt et al v. Mazda Motor of America, Inc. et al, 8:19-cv-01298-JLS-KES. The class action complaint was filed on behalf of on behalf of all persons in the United States who purchased, own, owned, lease or leased a Mazda CX-9 (2007-2016) and Mazda 6 (2009-2013) ("Class Vehicles"). A Second Amended Complaint was filed on January 26, 2021. Mazda filed an Answer to the Second Amended Complaint on August 27, 2021. On March 12, 2022, plaintiffs moved for class certification, which was granted in part by Judge Josephine L. Staton on October 21, 2022, for residents who purchased Class Vehicles in California, Michigan, Texas, Virginia, Ohio, Missouri, and Massachusetts. The claims of residents of other states are not proceeding at this time. On October 21, 2022, the Court certified this lawsuit to proceed as a class action on behalf of the following eight Classes: The California Class: All persons who purchased a Class Vehicle from an authorized Mazda dealership in the State of California for personal, family, or household purposes. The Song-Beverly Class: All persons who purchased a new Class Vehicle from an authorized Mazda dealership in the State of California for personal, family, or household purposes. The Massachusetts Class: All persons who purchased a Class Vehicle from an authorized Mazda dealership in the State of Massachusetts for personal, family, or household purposes. The Michigan Class: All persons who purchased a Class Vehicle in the State of Michigan for personal, family, or household purposes. The Missouri Class: All persons who purchased a Class Vehicle in the State of Missouri for personal, family, or household purposes. The Ohio Class: All persons who purchased a Class Vehicle from an authorized Mazda dealership in the State of Ohio. The Texas Class: All persons who purchased a Class Vehicle from an authorized Mazda dealership in the State of Texas. The Virginia Class: All persons who purchased a Class Vehicle in the State of Virginia for personal, family, or household purposes. The Final Pretrial Conference was also recently reset for March 24, 2023. No trial date has been set. Mazda Class Action and Lemon Law Legal Options In a class action lawsuit, if the class is certified by the Court the lawyers who bring the class action represent you. You will receive notice if the case is certified by the Court to proceed as a class action and of your right to opt out of the class by a certain deadline. If plaintiffs prevail at trial, you receive whatever relief is awarded by the judge or jury. But if they lose, you may not be able to litigate claims over the issues raised in the case. As with most lawsuits, the vast majority of class action cases settle. If the class action settles, and the court preliminarily approves the settlement, you will receive a class notice describing your options. Those options will be: (a) do nothing, in which case you may get nothing but be bound by the settlement, (b) submit a claim form if requested and get whatever relief is provided and you are also bound by the settlement, or (c) opt out and pursue your own claims, in which case you are not bound by the settlement but cannot participate in the relief being offered to class members. For many people, a class action settlement may provide significant benefits and requires little effort to participate. It also comes with little to no risk, as the claims have been resolved. But for others, particularly where they may have had significant damages, opting out and pursuing individual claims may provide them an opportunity to receive a better recovery, in a shorter period, but with no guarantee they will get anything in settlement. With vehicle claims what to do can be a complicated decision, as it can depend on many factors. These factors include: how old is your car? has the defect occurred in your car? have you taken it in for repairs on more than one occasion? do you still own the car? is the car still under warranty? Where do you live? Are you willing to consider the opportunity of getting a greater recovery as compared to taking what is offered in settlement? For a free lemon law consultation fill out the form below or call us at 1-855-OPT-OUT1 (1-855-678-6881). Frequently Asked Questions About the Mazda Water Pump Class Action What is the Mazda class action lawsuit name and case number? Sonneveldt et al v. Mazda Motor of America, Inc. et al, 8:19-cv-01298-JLS-KES When and where was the Mazda class action lawsuit filed? The case was filed in the United States District Court for the Central District of California on June 28, 2019. What is alleged in the Mazda water pump class action lawsuit? The second amended complaint alleges that, beginning in 2007 and continuing through the 2016 model year, Mazda has incorporated into hundreds of thousands of vehicles an MZI Cyclone engine, which contains a defect in design, manufacturing, materials, or workmanship that causes its internal water pump to suddenly and prematurely fail well-before the end of the useful life of the engine, leading to catastrophic engine failure or a costly replacement. Despite knowing of this defect, Mazda continued selling defective vehicles, failed to disclose the defect to owners and lessees, has not issued a recall, and has not remedied the issue or compensated owners and lessees of the defective vehicles.mazda-cx9-2014 What vehicle models are included in the Mazda class action lawsuit? 2007-2016 Mazda CX-9 2009-2013 Mazda 6 How many Mazda vehicles are affected by the water pump defect? According to publicly available data, the total number of these vehicles sold in the United States is approximately 428,101 vehicles. The number of Class Vehicles is less than that amount, but that amount is not yet publicly available. What does the Mazda class action lawsuit claim is the defect? According to the class action complaint, beginning in 2007 and continuing through the 2016 model year, Mazda has incorporated into hundreds of thousands of vehicles an MZI Cyclone engine, which contains a defect that causes its internal water pump to fail suddenly and prematurely well-before the end of the useful life of the engine, leading to catastrophic engine failure or a costly replacement. According to the complaint, the alleged defect in the Class Vehicles' water pumps is that a key component of the mechanical seal, the elastomer bellows, is made of hydrogenated acrylonitrile butadiene rubber, which degrades when exposed to coolant that reaches high temperatures during vehicle operation. Because the "Cyclone Engine has an internal water pump connected to the crankshaft by the timing chain and positioned directly above the crankshaft[,] … coolant from a failed or failing water pump [leaks] into engine parts, including, inter alia, the timing chain, crankcase and/or oil pan." (complaint ¶¶ 61, 64.) After leaking into the engine, coolant mixes with the engine oil, which can then spread throughout the entire engine and cause "immediate catastrophic engine failure, without the operator of the vehicle having any prior notice of the problem or of the imminent failure." (complaint ¶ 64.) The complaint alleges that despite knowing of this defect with the water pump, Mazda continued selling defective vehicles, failed to disclose the defect to owners and lessees, has not issued a recall, and has not remedied the issue or compensated owners and lessees of the defective vehicles. For free information on your legal right to seek compensation, fill out the form below or call us at 1-855-OPT-OUT1 (1-855-678-6881). How does the water pump defect violate Mazda's warranty? According to the complaint, Mazda impliedly warranted that the Class Vehicles were in merchantable condition and fit for the ordinary purpose for which vehicles are used. The Class Vehicles contain an inherent defect with the water pump and present an undisclosed safety risk to drivers and occupants. Thus, Mazda breached the implied warranty of merchantability. And Mazda cannot disclaim their implied warranty as it knowingly sold or leased a defective product. Mazda provided these vehicles with a 60 month or 60,000-mile warranty against defects in materials or workmanship for the water pump and gaskets. The complaint also alleges the vast majority of water pump failures in the vehicles occurred well before the end of the useful service life of these vehicles or before they reach 120,000 to 150,000 miles, breaching the implied warranty of merchantability. And if Mazda had not concealed the defect from consumers within the express warranty period, the water pump defect would have been repaired without cost to purchasers as promised under the original warranty. Has Mazda offered consumers anything to resolve the water pump defect? According to the complaint, Mazda has failed to fix the alleged defect or issue a water pump recall and continues to uniformly breach the warranty. What is the status of the Mazda class action lawsuit? A second amended complaint was filed on January 26, 2021. Mazda filed an answer to the second amended complaint on August 27, 2021. On March 12, 2022, plaintiffs moved for class certification, which was granted in part on October 21, 2022, on behalf residents of these states that purchased or leased the Class Vehicles: California, Michigan, Texas, Virginia, Ohio, Missouri, and Massachusetts. The Final Pretrial Conference was recently reset for March 24, 2023. No trial date has been set. Has the Mazda class action lawsuit been settled? Not at this time. Is there anything I need to do at this time? At this point the case has not settled. There is also not a deadline to opt out of the action before trial. If you want to bring your own lemon law claim, you can do so now or opt out when you receive notice. Or the class will be defined as those people who have not sued or settled their claims, and you will be automatically opted out of the settlement. As a settlement or other favorable outcome has not been reached there is nothing you need to do at this time. However, if you would like to discuss your options with a lemon law attorney fill out the form below or call us at 1-855-OPT-OUT1 (1-855-678-6881). What Happens If I Don't Opt-Out of the Mazda Class Action Lawsuit? It depends on how the class action settlement is structured, but in general if you do not opt out of the settlement you will be bound by its terms. You will receive any benefits offered in the settlement, either automatically or by submitting a claim form. However, you may not bring any individual claim for damages caused by the denial of a warranty claim, except possibly for personal injury claims. Should I Opt-Out of Any Certified Class or Settlement? For many people a class action provides them significant benefits without the need to spend any money or do much other than complete a claim form. If the Court approves the settlement, you will get the relief described in the class notice. However, other people may decide that the relief offered as part of the class action settlement is not adequate, that they do not want to wait to get relief or that they think they will get more if they do not participate in the class action settlement. This depends on a variety of factors, such as how old is your car, can you document the defect occurred in your car, have you taken it in for repairs on more than one occasion, do you still own the car, is it still under warranty and where do you live. Depending on the answers to those questions, while there is no guarantee you will receive any recovery if you opt out you may have the opportunity to receive significant relief, including a vehicle repurchase and penalties. What is the Song Beverly Warranty Act? The Song-Beverly Warranty Act, California Civil Code Section 1793.2(d)(1), is a California state law that requires manufacturers to repair defects after a reasonable number of repair attempts. What is "reasonable" is not part of hard and fast rules - safety defects should be fixed immediately, for example. The defects must be important, and must "substantially impair the vehicle's use, value, or safety." Civil Code Section 1793.22(e)(2). Under Civil Code Section 1793.2(d)(1), manufacturers must promptly offer repurchase or replacement of the vehicle they cannot fix in a reasonable time frame. In addition, Civil Code Section 1794(c) and Section 1793.2(d) provides that customers may receive a civil penalty up to two times actual damages if manufacturers acted "willfully" (meaning knowingly, but not necessarily with wrongful or malicious intent) in ignoring or failing its obligation under the Song-Beverly Act. Finally, under Civil Code Section 1794(d), manufacturers must pay plaintiff's attorney's fees and costs as part of the settlement, as the Song-Beverly Act is a pro-consumer fee-shifting statute. What Could I Get If I Opt Out and Bring a Lemon Law Lawsuit? Current or former owners should be aware that the California lemon law and other state and federal laws may force Mazda to either "buy the vehicle back," or provide other important compensation if they wrongfully denied warranty coverage. For free information on your legal right to seek compensation, fill out the form below or call us at 1-855-OPT-OUT1 (1-855-678-6881). Under California's lemon law, qualifying "lemons" must be bought back, and that can mean a large cash refund and payoff of your loan or lease. The refund could be as much as everything you paid for the vehicle and everything you owe: monthly payments, down payments, tax, finance charges, license, and registration, etc. You could even qualify for 2x your money back, depending on the circumstances. What Mazda would have to buy it for has nothing to do with how much the vehicle is currently worth. There is a formula in the law, that starts with you getting all your money back, and then taking certain deductions and exclusions away from your payment. Those refunds and exclusions are difficult to understand and can be fought against by knowledgeable lemon law attorneys. Don't settle for small dollar payments or more possible fixes without speaking to a qualified consumer attorney who has your individual best interest in mind. handing keys over after lemon law buyback Watch the mail and your email for an important legal notice if the class action settles, and contact a lemon law consumer lawyer for advice. Get a free lemon law case review There are a lot of factors to consider in deciding whether to opt out of a class action settlement and pursue individual lemon law claims. [GN] MICHIGAN: Grant of Summary Judgment in McCormick v. MSP Affirmed ---------------------------------------------------------------- In the case, MICHAEL McCORMICK, Plaintiff-Appellant v. JOSEPH M. GASPER, in his individual and representative capacities; MICHIGAN STATE POLICE, an agency of the State of Michigan, Defendants-Appellees, Case No. 22-1033 (6th Cir.), the U.S. Court of Appeals for the Sixth Circuit affirms the district court's order granting the Defendants' motion for summary judgment. Mr. McCormick appeals the district court's order granting Defendants Joseph Gasper's and the Michigan State Police (MSP)'s motion for summary judgment on his Title VII and 28 U.S.C. Section 1983 discrimination and retaliation claims. Mr. McCormick began his career with the MSP in 1990. He was not promoted to a position that he desired to obtain. In response, he filed suit in federal court alleging that MSP discriminated against him because he is a white male and retaliated against him because he had previously voiced his concern that he had been passed over for a different promotion in favor of a younger Black female. In August 2020, McCormick filed suit against the MSP and Director Gasper alleging that the Defendants violated federal law by unlawfully discriminating and retaliating against him on account of his race and gender. He amended his complaint to assert discrimination and retaliation claims against both Gasper and the MSP pursuant to 28 U.S.C. Section 1983 and Title VII of the Civil Rights Act. The parties stipulated to a dismissal of the Section 1983 retaliation claim against Gasper. After a full briefing and oral argument, the district court granted the Defendants' motion for summary judgment on all remaining claims. The Plaintiff thereafter filed this timely appeal. On appeal, he argues that the district court erred by granting Defendants' motion for summary judgment on the discrimination claims against Gasper and MSP, and on the retaliation claim against MSP. The Sixth Circuit holds that the Plaintiff has not provided any direct evidence of discrimination. Because none of the hearsay exceptions apply, there was not admissible evidence to demonstrate that Gasper was involved in ensuring his diversity policy would be carried out through this hiring process. Accordingly, the Sixth Circuit analyzes whether any of the circumstantial evidence presented by McCormick meets the standard to survive summary judgment. It finds that the Plaintiff fails to make out a prima facie case of employment discrimination because he withdrew his application and there is not sufficient evidence of pervasive discrimination to excuse the withdrawal of his application. Even if the Plaintiff could demonstrate a prima facie case, he has not brought forward evidence to demonstrate that the Defendants' hesitance to promote him was pretextual. Hence, the Sixth Circuit affirms the district court's grant of summary judgment on the Plaintiff's discrimination claims. Turning to the Title VII retaliation claims against MSP, the Sixth Circuit holds that because an inference must be drawn that Captain Thomas Deasy's remarks were motivated by McCormick's claims of discrimination in the worksite survey responses, the recommendation cannot serve as direct evidence of retaliation. And because the Plaintiff offers no other evidence of retaliatory conduct in his case, he cannot show a causal connection between his protected activity and any alleged adverse action. Therefore, the Sixth Circuit affirms the district court's order granting the motion for summary judgment on the Plaintiff's retaliation claims. A full-text copy of the Court's Nov. 1, 2022 Order is available at https://tinyurl.com/4jmcxmdu from Leagle.com. MORGAN STANLEY: Helfand Balks at Appeal Bond Imposition in Tillman ------------------------------------------------------------------ STEVEN F. HELFAND, a non-party member of the Class, appealed a court order granting Plaintiffs' motion for imposition of an appeal bond in the lawsuit entitled Sylvia Tillman, et al., Plaintiffs, v. Morgan Stanley Smith Barney LLC, Defendant, Case No. 1:20-cv-05914, the U.S. District Court for the Southern District of New York. As previously reported in the Class Action Reporter, this lawsuit is brought against the Defendant for its failure to properly secure and safeguard personal identifiable information (PII), including names, Social Security numbers, passport numbers, addresses, telephone numbers, email addresses, account numbers, dates of birth, income, asset value and holding information. The Plaintiffs also allege that the Defendant failed to provide timely, accurate, and adequate notice to them and similarly situated Morgan Stanley current and former customers that their PII had been lost and precisely what types of information was unencrypted and in the possession of unknown third parties. This case does not involve a breach of a computer system by a third party, but rather an unauthorized disclosure of the PII of the Plaintiffs and the class by the Defendant to unknown third parties. On November 4, 2021, the Court was advised that all claims asserted have been settled in principle. On November 10, 2021, the Court was further advised that the settlement in principle is class wide. Accordingly, the Clerk of Court was directed to reopen the case. On Jan. 18, 2022, the Court entered an Order granting Plaintiffs' unopposed motion for preliminary approval of class action settlement. The Settlement Agreement provides for a Settlement Class defined as follows: All Individuals with existing or closed Morgan Stanley accounts established in the United States who received the Notice Letters regarding the Data Security Incidents. On April 19, 2022, Mr. Helfand, a non-party member of class, filed an objection to the proposed settlement/proof standing. On August 5, 2022, the Court entered judgment and final approval of the class action settlement. The Court also awarded attorneys' fees, reimbursement of litigation expenses, and service awards to the named Plaintiffs in the amount of $253,994.53. On August 17, 2022, Mr. Helfand filed a notice of appeal from the court's ruling. On September 2, the Plaintiffs filed a motion for imposition of an appeal bond. On September 28, 2022, Judge Paul A. Engelmayer granted the Plaintiffs' motion for imposition of an appeal bond in the amount of $25,000. The Court held that Objector/ Appellant Mr. Helfand, as a condition of proceeding with his appeal, must file a bond in the amount of $25,000 or deposit into the Court registry cash in the amount of $25,000. He was further ordered to file with the Clerk of Court and serve on Settlement Class Counsel and counsel for Defendant Morgan Stanley proof of satisfaction of the bond requirement within 20 days. The appellate case is captioned In re: Morgan Stanley Data Security Litigation, Case No. 22-2670, in the United States Court of Appeals for the Second Circuit, filed on October 19, 2022. On November 7, 2022, Judge Engelmayer, having considered the parties' Joint Motion for Return of the Appeal Bond, granted the motion and ordered that the $25,000 appeal bond paid to the Court Registry by Mr. Helfand on October 25, 2022, be returned to him.[BN] Plaintiffs-Appellees SYLVIA TILLMAN, et al., on behalf of themselves and all others similarly situated, are represented by: John A. Yanchunis, Esq. MORGAN & MORGAN, P.A. 201 North Franklin Street Tampa, FL 33602 Telephone: (813) 221-6583 - and - Linda Phyllis Nussbaum, Esq. NUSSBAUM LAW GROUP, P.C. 1211 Avenue of the Americas New York, NY 10036 Telephone: (917) 438-9189 - and - James E. Cecchi, Esq. CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, PC 5 Becker Farm Road Roseland, NJ 07068 Telephone: (973) 994-1700 - and - Jean Sutton Martin, Esq. MORGAN & MORGAN, P.A. 201 North Franklin Street Tampa, FL 33602 Telephone: (813) 559-4908 Defendant-Appellee MORGAN STANLEY SMITH BARNEY LLC is represented by: Susanna M. Buergel, Esq. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3000 Objector-Appellant STEVEN F. HELFAND appears pro se. NEW YORK: MTA Faces Class Action Over Human Rights' Law Violations ------------------------------------------------------------------ WABC reports that three New Yorkers with disabilities have filed a class-action lawsuit against the MTA. They're demanding that the MTA fix the gaps between subway trains and station platforms that can challenge riders who are blind or use a wheelchair. The suit accuses the agency of violating the city's human rights law by not eliminating vertical and horizontal gaps of several inches. An MTA spokesperson released a statement responding to the pending litigation. "I'm not going to comment on the specifics of this lawsuit, however I will say no agency has ever made a stronger commitment when it comes to focusing on making the transit system accessible for all riders," MTA Chief Accessibility and Senior Advisor Quemuel Arroyo said. "This is reflected in the 15 accessibility projects completed during COVID, the $5.2 billion investment for accessibility upgrades in the 2020-2024 capital plan, and the historic settlement reached with disability advocates that provide a roadmap for making the subway system accessible." [GN] ONTARIO: McMillan Discusses Appeal Court Ruling in Detention Suit ----------------------------------------------------------------- Samantha Gordon, Esq., of mcmillan, disclosed that the Ontario Court of Appeal decision in Johnson v. Ontario ("Johnson")[ provides novel appellate consideration of a court's discretion to extend the opt-out period for class members in a class action. In Johnson, the Court of Appeal concluded that to obtain an extension, a class member must show that their "neglect in complying with the court-imposed deadline is excusable and that an extension will not result in prejudice to the class, the defendant or the administration of justice". Facts The class action sought damages for negligence and Charter violations arising from the operation and management of an Ontario detention facility. Class members included any person incarcerated at the facility between January 2010 and May 2017. The 2017 certification order approved two forms of notice to the class advising the class of their opt-out rights. A short form notice was published in two local newspapers and a long form notice was posted on class counsel's website and sent to the last known address of each class member. The appellant was a class member due to his incarceration from July 2016 to August 2017 at the facility. Direct notice was mailed to his last known address in March 2018. The appellant remained incarcerated at a federal institution until 2019. The appellant's father still resided at the last known address, but the appellant did not receive the direct notice. The appellant missed the deadline to opt-out of the class proceedings. The appellant first learned of the class action in June 2020, after commencing his own action for an overlapping proceeding against the facility. The appellant sought an extension of the opt-out deadline in order to continue to pursue his own legal action. Legal Test The Court of Appeal found that extensions to an opt-out period should only be granted where: The delay in opting out is a result of excusable neglect, in good faith and on a reasonable basis; and The court has considered if prejudice will result to participating class members, the defendant or the integrity of class proceedings if the extension is granted. The excusable neglect/no prejudice test was previously outlined by the Ontario Superior Court in Young v. London Life Insurance Co. and adopted from the federal U.S. decision Re PaineWebber Limited Partnerships Litigation. The Court recognized the importance of preserving an opt-out right for class members (a fundamental component of the class proceedings scheme) as well as maintaining a deadline (to promote certainty and respect for court orders). The Court reiterated that the judicial power to extend time to opt-out will rarely be exercised. Application in Johnson In Johnson, the Court found that the motion judge had erred in denying an extension of the opt-out period. The Court of Appeal found that the appellant's neglect to opt-out was excusable, as the appellant did not receive the notices, was incarcerated at the time of the notice publication and mailing, and there was no evidence to suggest that the appellant should have implemented a mail monitoring system. A notice plan can be adequate and notice can be sent in compliance with the notice plan, but that is not dispositive of whether a class member had a reasonable basis in good faith for the opt-out delay. There was no assertion of delay in requesting an extension once the appellant became aware of the class proceeding. Notably, the Court found that evidence of what the class member would have done had he received the notices was not a relevant consideration. Based on the evidence, it was unlikely that the appellant would have opted out, as he became aware of his cause of action after the opt-out deadline. The Court found that it is not necessary for a class member to prove that they would have opted out by the deadline. The question is whether, given the fact they did not opt-out, there was an excusable neglect. In considering prejudice, the Court noted that a motion to extend the opt-out deadline after judgment or a settlement will most likely cause prejudice and be denied. The Court saw class counsel's lack of opposition of the appeal as a strong indicator that an extension of time would cause no prejudice to the class. The respondent also did not identify any prejudice which would occur due to the extension. Finally, the appellant's behaviour was determined to be not strategic, or "cavalier" to the initial deadline. As a result, the Court found that granting an extension would not cause prejudice to the administration of justice or integrity of the process. Key Takeaways Johnson provides novel appellate consideration of the test to grant an extension of a court ordered opt-out period in class proceedings. Parties to class proceedings should be aware that prior to a judgment or settlement of a class action, there is a limited possibility that class members can successfully extend the opt-out deadline. After a judgment or settlement, it will be very unlikely that a class member will be granted an extension, offering certainty and finality to defendants. The case could open the door to dubious opt-out extension requests -- will we see a rise in "my dog ate my opt-out form" excuses? However, the Court was clear in articulating that only in rare circumstances will the test in Johnson be met. Further, courts will not be receptive to extension requests where the class member is cavalierly ignoring the deadline, is acting strategically or is implementing a "wait-and-see" approach. [GN] REXEL USA: Court Vacates Recommendations to Dismiss Torres Suit --------------------------------------------------------------- In the case, GERARDO TORRES and TAWNI VANDAGRIFF, individually, and on behalf of other members of the general public similarly situated, Plaintiffs v. REXEL USA, INC., a Delaware corporation; and DOES 1 through 10, inclusive, Defendants, Case No. 1:20-cv-01697-ADA-BAM (E.D. Cal.), Magistrate Judge Barbara A. McAuliffe of the U.S. District Court for the Eastern District of California vacates the findings and recommendations regarding dismissal of action for failure to obey court orders issued on Oct. 13, 2022. Plaintiffs Torres and Vandagriff, individually and on behalf of a putative class, filed the instant wage-and-hour action in the Superior Court for the County of Stanislaus on Oct. 29, 2020. Rexel removed the matter to this Court on Dec. 2, 2020. In July 2022, the parties reported that they had settled the matter in principle and intended to stipulate to remand this matter back to the Superior Court for the County of Stanislaus to seek approval of their class action settlement. On Oct. 13, 2022, the Court issued findings and recommendations to dismiss the action based on the parties' repeated failures to obey court orders to file the necessary documents to conclude this matter. The findings and recommendations were served on the parties and contained notice that any objections thereto should be filed within 14 days following service. On Oct. 20, 2022, the parties filed a stipulation to remand the action to the Superior Court of California for the County of Stanislaus. The stipulation remains pending. Thereafter, on Oct. 27, 2022, the Plaintiffs filed objections to the findings and recommendations. Having considered the objections, and in light of the stipulation to remand filed by the parties, Judge McAuliffe vacates the findings and recommendations. A full-text copy of the Court's Oct. 28, 2022 Order is available at https://tinyurl.com/5fd6ach2 from Leagle.com. ROCHE FREEDMAN: Seeks Dismissal of Class Action Suit Over Leaks --------------------------------------------------------------- Jordan Atkins, writing for Coingeek, reports that another of the former Roche Freedman's many legal opponents has reacted to August's bombshell leaks, this time filing a motion demanding that the case be thrown out in its entirety over concerns that the firm is using discovery for 'inappropriate purposes.' The motion is filed by Nexo, a digital asset lender being sued over its delisting of XRP, the beleaguered digital asset of Ripple exchange. The suit was brought as a class action by Nexo customer Junhan Jeong, with Roche Freedman serving as lead counsel. Nexo now argues that the August leaks -- which showed Roche Freedman co-founder Kyle Roche bragging about, among other things suing competitors of one of the firm's clients (Ava Labs) in order to use the discovery process to gain insight into the inner workings of 'crypto' companies -- are one of a number of reasons the case should be thrown out entirely. "Nexo should not be forced into extensive, invasive, and expensive class action discovery when Jeong has no right to proceed in a class action lawsuit and when its counsel appears to use discovery for inappropriate purposes," reads the motion. "[They] have a strong pecuniary interest in damaging Nexo to benefit Ava Labs, in tailoring document requests to obtain documents relevant to Nexo's inner-workings, and developing the case as a tool to further the interests of Ava Labs, even if this may not align with advancing class interests." Since the August leaks, Roche Freedman has scrambled to stay ahead of an ever-growing cloud of fallout which threatens to contaminate the firm's many current and former lawsuits against companies and individuals in the 'crypto' space. The firm initially took Roche off its class action practice, but this soon proved insufficient as the firm was removed from a class action lawsuit against Tether by Judge Failla in New York. With similar motions being filed by opponents in the Roche Freedman's other cases, Kyle Roche was fired, and the firm was forced to rebrand to Freedman Normand Friedland. Predictably, however, even those extreme measures seem unlikely to allay the fears of anyone locked in a legal fight with the firm. It was Kyle Roche who happened to be filmed saying the words, but court documents show that all of Roche Freedman's partners have a financial stake in Ava Labs. Even with Roche gone, questions linger over whether his admissions implicate the entire firm. Nexo certainly thinks so: "As Judge Failla recognized, the problem was not contained to Roche; the entire Roche Freedman firm is tainted by the conduct . . . In fact, the six founding partners of Roche Freedman were all recipients of Ava Labs tokens and would share Roche's same conflicted financial motivations." Nexo has requested that the court hear its motion in February. [GN] SNAP INC: Faces Suit in Federal Court for Breach of Fiduciary Duty ------------------------------------------------------------------ Snap Inc. disclosed in its Form 10-Q Report for the quarterly period ended September 30, 2022, filed with the Securities and Exchange Commission on October 20, 2022, that in August 2022, the Company, and certain of the Company's directors, were named as defendants in a class action lawsuit in federal court purportedly brought on behalf of Class A stockholders, alleging that a transaction between the Company's co-founders and the Company, in which the Company's co-founders agreed to employment agreements and the Company agreed to amend its certificate of incorporation and issue a stock dividend if certain conditions were met, was not advantageous to the stockholders and constituted a breach of fiduciary duty. Snap Inc. is an American camera and social media company headquartered in Santa Monica, California. The company developed and maintains technological products and services, namely Snapchat, Spectacles, and Bitmoji. ST. LOUIS COUNTY, MO: Summary Judgment in Furlow Suit Partly Upheld ------------------------------------------------------------------- In the case, Dwayne Furlow, individually and on behalf of all others similarly situated; Ralph Torres, Plaintiffs-Appellants, Michael Gunn, Personal Representative of the Estate of Howard Liner, Deceased, Plaintiff v. Jon Belmar; County of St. Louis, Missouri; Kevin Walsh, St. Louis County Police Officer, Badge #4068; Christopher Partin; Laura Clements, Detective, St. Louis County Police Department, Defendants-Appellees, Ed Schlueter, St. Louis County Police Department; John Does, 1-20, St. Louis County Police Department, Defendants, Case No. 21-2640 (8th Cir.), the U.S. Court of Appeals for the Eighth Circuit enters an Opinion: a. affirming the district court's grant of qualified immunity as to Officers Partin and Walsh and its dismissal of the municipal liability claim and Count Three; and b. reversing the district court's grant of qualified immunity to Detective Clements. The St. Louis County Police Department ("SLCPD") in Missouri utilizes what it calls a "Wanteds System." This system allows officers to issue electronic notices ("Wanteds") authorizing any other officer to seize a person and take him into custody for questioning without any review by a neutral magistrate before issuance. The Wanteds may pend for days, months, or, in some cases, indefinitely. From February 2011 until December 2016, the SLCPD issued approximately 15,000 Wanteds but only made about 2,500 formal arrests (i.e., roughly 17% of Wanteds resulted in arrests). The record does not reflect how many of those Wanteds resulted in arrest warrants or criminal convictions. Nor does it allow the Court of Appeals to determine how many people were "informally" arrested or detained pursuant to Wanteds. Mr. Furlow's circumstances are straightforward. When Officer Walsh first encountered Latoya, Furlow's wife, she was "angry, fearful, afraid, and nervous." By her own account, Furlow had just "smacked her in the cheek," "knocked her to the ground," "stomped on her legs," and "grabbed her by her hair." Even though she recanted her statement the next day, Officer Walsh still had probable cause to believe that Furlow committed domestic assault the day before. And under the collective-knowledge doctrine, so did the officers who later arrested him. Mr. Torres's situation is a different story. Although Detective Clements initially had probable cause to believe that he had sexually assaulted his daughter, it had gone away by the time another officer arrested him. A parallel investigation had failed to uncover evidence supporting the sex-abuse allegation. And once probable cause was gone for Detective Clements, who had personal knowledge of the investigation, it was gone for the officer who eventually arrested Torres too. On Feb. 24, 2016, Furlow commenced the putative class action under 42 U.S.C. Section 1983 on behalf of himself and all others similarly situated. Furlow's First Amended Class Action Complaint added Torres and Howard Liner as individual plaintiffs and putative class representatives. The operative complaint alleges that SLCPD Chief of Police Jon Belmar, in his official capacity, the County of St. Louis, Missouri, and Officer Christopher Partin, Officer Kevin Walsh, and Detective Laura Clements, in their individual capacities, violated the plaintiffs' Fourth, Fifth, and Fourteenth Amendment rights. The Defendants (collectively, the "Officers") moved for summary judgment and Furlow and Torres cross-moved for partial summary judgment. The district court granted the Officers' motion, denied the Plaintiffs' motions, and denied the Plaintiffs' motion for class certification. Furlow and Torres appeal. While Furlow and Torres raise several issues on appeal, The Eighth Circuit says the case primarily turns on a single question: does the SLCPD's Wanteds System violate the Constitution? It concludes that it depends on the circumstances. Because circumstances may exist under which the Wanteds System does not run afoul of the Constitution, the Plaintiffs' facial challenge to the system fails. At this point, two principles are clear. First, the longstanding common-law rule is that officers can arrest suspected felons if they have probable cause, regardless of whether they have a warrant. And second, an officer can rely on a wanted poster, bulletin, or flyer if another officer had probable cause to issue it. Applying those principles to this case, the Eighth Circuit explains that the concern seems to be that most officers will just bypass warrants in favor of a quicker and easier solution: wanteds. Even aside from the fact that warrantless felony arrests have been a regular part of police practice for hundreds of years, the Eighth Circuit's slippery-slope concern is unlikely to be a serious problem for two reasons. First, as Torres' circumstances show, officers can face lawsuits when they are wrong about probable cause. With arrest warrants, money damages are typically unavailable. Second, an absence of probable cause generally requires the suppression of any evidence found during a search incident to the arrest. But if the officers have an arrest warrant, the evidence may still be admissible under the good-faith exception. The point is that officers still have every incentive to get an arrest warrant, especially when probable cause is a close call. But in the ordinary case, nothing -- not the common law nor the Fourth Amendment -- prevents them from making a warrantless arrest. A full-text copy of the Court's Nov. 1, 2022 Opinion is available at https://tinyurl.com/2eeczeev from Leagle.com. SYNGENTA CROP: Croscut Sues Over Monopoly of Pesticides for Farmers ------------------------------------------------------------------- FREDERICK C. CROSCUT, on behalf of himself and all others similarly situated, Plaintiff v. SYNGENTA CROP PROTECTION AG, SYNGENTA CORPORATION, SYNGENTA CROP PROTECTION, LLC, and CORTEVA, INC., Defendants, Case No. 1:22-cv-00899 (M.D.N.C., Oct. 20, 2022) arises from the Defendants' scheme to take advantage of farmers in the United States through the implementation of special "loyalty programs" in connection with key active ingredients that are incorporated into products that farmers use to protect crops from damage caused by insects, weeds, and fungi, in violation of the Sherman Act, various state antitrust laws, and various state consumer protection laws. According to the complaint, under these loyalty programs, the Defendants provide payments to distributors in exchange for selling certain amounts of Defendants' pesticides and restricting sales of generic pesticides made by competing manufacturers. The Defendants implement and enforce these loyalty programs to ensure that manufacturers of generic pesticides are unable to effectively distribute their products, which preserves Defendants' control of the market and prevents price competition. As a result of Defendants' conduct, Defendants have restrained competition, maintained unlawful monopolies, and harmed America's farmers including Plaintiff, reducing choices for these farmers and costing them millions of dollars in overcharges, asserts the complaint. The Plaintiff and the Class bring this antitrust suit under federal antitrust laws, state antitrust and consumer protections laws, and for unjust enrichment to redress that wrongful conduct. Syngenta Crop Protection AG is a chemical manufacturing company.[BN] The Plaintiff is represented by: Gagan Gupta, Esq. Stuart M. Paynter, Esq. Sara C. Willingham, Esq. PAYNTER LAW, PLLC 106 S. Churton Street, Suite 200 Hillsborough, NC 27278 Telephone: (919) 729-2149 E-mail: ggupta@paynterlaw.com stuart@paynterlaw.com swillingham@paynterlaw.com - and - Roberta D. Liebenberg, Esq. Gerard A. Dever, Esq. Rachel K. Sommer, Esq. FINE, KAPLAN AND BLACK, R.P.C. One South Broad Street, 23rd Floor Philadelphia, PA 19107 Telephone: (215) 567-6565 E-mail: rliebenberg@finekaplan.com gdever@finekaplan.com rsommer@finekaplan.com - and - Linda P. Nussbaum, Esq. Susan R. Schwaiger, Esq. NUSSBAUM LAW GROUP, P.C. 1211 Avenue of the Americas, 40th Floor New York, NY 10036 Telephone: (917) 438-9189 E-mail: lnussbaum@nussbaumpc.com schwaiger@nussbaumpc.com TARGET CORP: Denial of Judgment on Pleadings in Bowen Suit Reversed ------------------------------------------------------------------- In the case, AISHA BOWEN, an individual, on behalf of herself of all others similarly situated; STACEY WILLIAMS, an individual on behalf of herself and all others similarly situated, Plaintiffs-Appellees v. TARGET CORPORATION, a Minnesota corporation, Defendant-Appellant, Case No. 21-56136 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit reverses the district court's order denying Target's Rule 12(c) motion for judgment on the pleadings. Target employees brought this class action lawsuit challenging the company's method of calculating overtime pay for workers "who were paid a shift differential and/or holiday premium pay." The Plaintiffs claim that Target violates California law in two ways: First, its method of calculating employees' regular rate of pay (RROP) -- which uses total hours worked rather than only non-overtime hours -- allegedly conflicts with the California Supreme Court's holding in Alvarado v. Dart Container Corp., 411 P.3d 528 (Cal. 2018). Second, Target's payment of an overtime premium of one-half RROP supposedly runs afoul of California's requirement that it be calculated "at the rate of no less than one and one-half times the regular rate of pay for an employee." The district court denied Target's Rule 12(c) motion for judgment on the pleadings, which the Ninth Circuit reviews de novo. Target asked the district court to certify two questions under Section 1292(b) -- the Alvarado theory and the 1.5 overtime theory. The district court certified only the Alvarado theory, and the Plaintiffs contend that the Ninth Circuit's jurisdiction extends to that issue alone. It is well settled, however, that "appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court." The Ninth Circuit therefore concludes that it has jurisdiction over this entire appeal. It reverses the district court and holds that Target is entitled to judgment as a matter of law. The Ninth Circuit holds that the district court erred in ruling that Target's method of calculating RROP using both overtime and non-overtime hours conflicts with the California Supreme Court's Alvarado decision. The district court also erred in ruling that Target violates California's requirement that employees' overtime hours be paid at a rate of "no less than one and one-half times the regular rate of pay." Ultimately, the Ninth Circuit finds that the Plaintiffs' complaint is that Target should have adopted a payment methodology that maximizes their overtime pay. But California law does not require that outcome, and Target has complied with California's overtime requirement. A full-text copy of the Court's Nov. 1, 2022 Memorandum is available at https://tinyurl.com/356zkbcm from Leagle.com. TASKUS INC: Lozada Appointed as Lead Plaintiff in Securities Suit ----------------------------------------------------------------- Judge John P. Cronan of the U.S. District Court for the Southern District of New York appoints the Plaintiff as Lead Plaintiff in the lawsuit entitled HUMBERTO LOZADA, individually and on behalf of all others similarly situated, Plaintiff v. TASKUS, INC. et al., Defendants, Case No. 22 Civ. 1479 (JPC) (S.D.N.Y.). The Complaint in this class action, initially filed Feb. 23, 2022, alleges that a publicly traded corporation, TaskUs, and three of its executives defrauded members of the public, who purchased TaskUs securities. On the same date, the law firm of Bleichmar Fonti & Auld LLP, which serves as counsel to Humberto Lozada, a member of the purported class seeking compensation in this action, issued a press release through the newswire service ACCESSWIRE announcing that the action had been commenced and describing the allegations made therein. As explained in the press release, any member of the purported class could move the Court for appointment as Lead Plaintiff by the first business day after sixty days from the publication of the press release--in this case, by April 25, 2022. Only one such motion was filed by that date, which sought the appointment of Lozada as Lead Plaintiff and Bleichmar as Lead Counsel. Judge Cronan finds that Lozada satisfies the conditions for the most adequate lead plaintiff. He also satisfies the relevant requirements of Rule 23 of the Federal Rules of Civil Procedure. The Court is aware of no condition that would give rise to a conflict between Lozada's interests and the interests of other class members: all seek to maximize the recovery paid to owners of TaskUs securities by the Defendants for their alleged misrepresentations concerning TaskUs's business and financial prospects. Furthermore, Lozada's alleged losses of over $300,000, easily constitute a sufficient interest in the outcome of this case to secure his vigorous advocacy on behalf of the class. Finally, Bleichmar is an experienced plaintiffs' firm with an active securities practice. Consequently, the Court finds that Lozada is the most adequate plaintiff and, therefore, appoints him Lead Plaintiff, as required by law. The Court grants approval for Lozada's choice of Lead Counsel. The Court, therefore, appoints Lozada as Lead Plaintiff and Bleichmar as Lead Counsel in this case. The Clerk of Court is respectfully directed to close the motion pending at Dkt. 13. A full-text copy of the Court's Order dated Oct. 20, 2022, is available at https://tinyurl.com/zavf4ys7 from Leagle.com. TEXAS: Unclaimed Property Law Unconstitutional, Ambriz Suit Says ---------------------------------------------------------------- ROLANDO AMBRIZ, individually and on behalf of all others similarly situated, Plaintiff v. GLENN HEGAR, in his official capacity as Texas Comptroller of Public Accounts, Defendant, Case No. 1:22-cv-01067-LY (W.D. Tex., Oct. 20, 2022) is a class action brought by the Plaintiff challenging the constitutionality under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 17 of the Texas Constitution of provisions of the Texas Unclaimed Property Law. The TUPL requires the State of Texas, acting through the Controller, to make public use of, without payment of just compensation to its owners, private property that the State classifies as "presumed abandoned." This Complaint seeks declaratory and further necessary or proper relief, including an injunction, under 42 U.S.C. Section 1983, 22 U.S.C. Sections 2201 & 2202, and the United States and Texas Constitutions on behalf of all current owners of Unclaimed Property held by the Comptroller in the form of money who will reclaim their property in the future. The Plaintiff seeks a declaration that the TUPL is unconstitutional because it requires the Comptroller to appropriate private Unclaimed Property for public purposes without any payment of just compensation, which constitutes a taking of Plaintiff's and the Class' property in violation of the Fifth Amendment and Article 1, Section 17. Those constitutional provisions provide a mandatory, self-executing remedy of just compensation for such appropriation by the State of private property for public use. The Plaintiff additionally seeks further relief, including injunctive relief to require the Comptroller to pay just compensation to Unclaimed Property claimants, in accordance with the declaratory relief requested. The Plaintiff is an owner of property that is currently held in custody pursuant to the TUPL by the State. Defendant Glenn Hegar is the Texas Comptroller of Public Accounts. In that position, pursuant to the TUPL, Defendant is and has been in charge of supervising and administering the TUPL. The Plaintiff sues Defendant Hegar in his official capacity.[BN] The Plaintiff is represented by: Roger L. Mandel, Esq. JEEVES MANDEL LAW GROUP, P.C. 2833 Crockett St Suite 135 Fort Worth, TX 76107 Telephone: (214) 253-8300 E-mail: rmandel@jeevesmandellawgroup.com - and - Felipe B. Link, Esq. LINK & ASSOCIATES 10440 North Central Expy., Ste. 950 Dallas, TX 75231 Telephone: (214) 214-3001 E-mail: flink@linklawpc.com - and - Scott R. Jeeves, Esq. Kyle W. Woodford, Esq. JEEVES LAW GROUP, P.A. 2132 Central Avenue St. Petersburg, FL 33712 Telephone: (727) 894-2929 E-mail: sjeeves@jeeveslawgroup.com kwoodford@jeeveslawgroup.com - and - Craig E. Rothburd, Esq. CRAIG E. ROTHBURD, P.A. 320 W. Kennedy Blvd., #700 Tampa, FL 33606 Telephone: (813) 251-8800 Facsimile: (813) 251-5042 E-mail: craig@rothburdpa.com maria@rothburdpa.com - and - Michael C. Wagner, Esq. Julie M. O'Dell, Esq. SMITH, KATZENSTEIN & JENKINS, LLP 1000 N. West Street, Suite 1501 Wilmington, DE 19801 Telephone: (302) 652-8400 E-mail: mcw@skjlaw.com jmo@skjlaw.com - and - Arthur Susman, Esq. THE LAW OFFICE OF ARTHUR SUSMAN 1540 N. Lake Shore Drive Chicago, IL 60610 Telephone: (847) 800-2351 E-mail: arthur@susman-law.com U.S. BANCORP: Bids for Lead Plaintiff Appointment Due Dec. 26 ------------------------------------------------------------- Shareholder rights law firm Johnson Fistel, LLP on Oct. 26 disclosed that a class action lawsuit has commenced on behalf of investors of U.S. Bancorp. ("U.S. Bancorp" or the "Company") (NYSE: USB). The class action is on behalf of shareholders who purchased U.S. Bancorp securities between August 1, 2019 to July 28, 2022, both dates inclusive (the "Class Period"). Investors are hereby notified that they have until December 26, 2022 to move the Court to serve as lead plaintiff in this action. What actions may I take at this time? If you suffered a loss and are interested in learning more about being a lead plaintiff, please contact Jim Baker (jimb@johnsonfistel.com) by email or phone at 619-814-4471. If emailing, please include a phone number. To join this action, you can click or copy and paste the link below into a browser: https://www.johnsonfistel.com/investigations/us-bancorp-usb-class-action There is no cost or obligation to you. The Complaint alleges that U.S. Bancorp made false and misleading statements to the public throughout the Class Period regarding the Company's business, operational, and compliance policies. Specifically, Defendants made false and misleading statements and/or failed to disclose that: (a) U.S. Bank created sales pressure on its employees that led them to open credit cards, lines of credit, and deposit accounts without consumers' knowledge and consent; (b) since at least 2015, U.S. Bank and by extension, U.S. Bancorp, was aware of such unauthorized conduct that it was violating relevant regulations and laws aimed at protecting its consumers; (c) U.S. Bancorp failed to properly monitor its employees from engaging in such unlawful conduct, detect and stop the misconduct, and identify and remediate harmed consumers; (d) all the foregoing subjected the Company to a foreseeable risk of heightened regulatory scrutiny or investigation; (e) U.S. Bancorp's revenues were in part the product of unlawful conduct and thus unsustainable; and (f) as a result, the Company's public statements were materially false and misleading at all relevant times. A lead plaintiff will act on behalf of all other class members in directing the U.S. Bancorp class-action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the class-action lawsuit. An investor's ability to share any potential future recovery of the U.S. Bancorp class action lawsuit is not dependent upon serving as lead plaintiff. For more information regarding the lead plaintiff process please refer to https://www.johnsonfistel.com/lead-plaintiff-deadlines. About Johnson Fistel, LLP: Johnson Fistel, LLP is a nationally recognized shareholder rights law firm with offices in California, New York and Georgia. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. Johnson Fistel seeks to recover losses incurred due to violations of federal securities laws. For more information about the firm and its attorneys, please visit http://www.johnsonfistel.com.Attorney advertising. Past results do not guarantee future outcomes. Contact: Johnson Fistel, LLP Jim Baker, 619-814-4471 Investor Relations jimb@johnsonfistel.com [GN] U.S. BANCORP: Deadline for Securities Claims Filing Set Dec. 26 --------------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, reminds investors of a class action lawsuit against U.S. Bancorp ("U.S. Bank" or "the Company") (NYSE: USB) for violations of §§10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's securities between August 1, 2019 and July 28, 2022, inclusive (the "Class Period"), are encouraged to contact the firm before December 26, 2022. We also encourage you to contact Brian Schall of the Schall Law Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at 310-301-3335, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at bschall@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. U.S. Bank placed sales pressure on employees that resulted in credit cards and other accounts being opened without the knowledge or consent of consumers. The Company was aware of unauthorized conduct that violated consumer protection laws. The Company failed monitor its employees' conduct to prevent such improper and unlawful conduct from occurring. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about U.S. Bank, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and rules of ethics. Contacts The Schall Law Firm Brian Schall, Esq. www.schallfirm.com Office: 310-301-3335 info@schallfirm.com [GN] UNCLE AL'S: Lehn Seeks to Certify Class of Restaurant Staff ----------------------------------------------------------- In the class action lawsuit captioned as TORI VAN LEHN, on behalf of herself and all others similarly situated, v. UNCLE AL'S SPORTS CAFE SUNRISE, INC.d/b/a LUV'N OVEN ALE HOUSE, et. al., Case No. 0:22-cv-61628-AHS (S.D. Fla.), the Plaintiff asks the Court to enter an order conditionally certifying the following collectives of similarly situated Servers and Bartenders: -- 80/20 Collective: "All restaurant Servers and Bartenders who worked for the Defendants in Sunrise, Florida, during the three (3) years preceding this lawsuit who were required to spend more than 20% of any workweek performing "non-tipped" duties and side work and did not receive the full applicable minimum wage;" -- Substantial Side Work Collective: "All restaurant Servers and Bartenders who worked for Defendants in Sunrise, Florida, who were required to spend 30 or more continuous minutes on non-duties and side work during any shift after December 28, 2021;" and -- Overtime Collective: "All restaurant Servers and Bartenders who worked for Defendants in Sunrise, Florida, during the three years preceding this lawsuit who worked more than 40 hours in any workweek." Accordingly, the Defendants implemented and enforced a common and widespread policy of requiring all Servers and Bartenders to spend more than 20% of their workweeks performing non-tipped duties and side work during the past 3 years. The Plaintiffs assert identical federal overtime wage violations as the Plaintiff in Adams. Instead of calculating overtime wages for Servers and Bartenders at one-and-one-half times the full applicable minimum wage rate, Defendants computed federal overtime rates by multiplying the subminimum wage by one-and-one-half, the Plaintiff adds. The Defendants operate a restaurant and sports bar. A copy of the Plaintiff's motion to certify class dated Oct. 24, 2022 is available from PacerMonitor.com at https://bit.ly/3FNpI6m at no extra charge.[CC] The Plaintiff is represented by: Jordan Richards, Esq. USA EMPLOYMENT LAWYERS -JORDAN RICHARDS, PLLC 1800 SE 10 th Ave. Suite 205 Fort Lauderdale, FL 33316 Telephone: (954) 871-0050 E-mail: jordan@jordanrichardspllc.com jake@jordanrichardspllc.com catherine@USAEmploymentLawyers.com - and - Brian Keith Oblow, Esq. Gregory Jolly, Esq. Benjamin S. Briggs, Esq. ADAMS AND REESE LLP 100 N. Tampa St., Suite 4000 Tampa, FL 33602 Telephone: (813) 402-2880 E-mail: Brian.oblow@arlaw.com Greg.jolly@arlaw.com Ben.briggs@arlaw.com Elaine.glotz@arlaw.com WHITE CASTLE: BIPA Case Pending Before Illinois Supreme Court ------------------------------------------------------------- Anne E. Larson, Esq., Harry J. Secaras, Esq., and Zachary A. Pestine, Esq., of Ogltree Deakins, in an article for SHRM, report that federal jury in the U.S. District Court for the Northern District of Illinois recently concluded that a company violated the Illinois Biometric Information Privacy Act (BIPA) 45,600 times over six years by collecting truck drivers' fingerprints without the informed, written consent the law requires. This is the first jury verdict rendered under BIPA, following a spike in class-action filings under the statute. The jury determined the company's violation of the statute was intentional or reckless and that it violated BIPA 45,600 times, a figure consistent with the class of truck drivers whose fingerprints were scanned between April 4, 2014, and Jan. 25, 2020, applying a five-year statute of limitations from the date the complaint was filed on April 4, 2019. The jury did not differentiate between pre-complaint violations and post-complaint violations. Thus, the jury seemingly based its finding on the drivers' last fingerprint scan, which presumably occurred after the initial complaint was filed on April 4, 2019, rather than the date on which the company initially collected the drivers' fingerprints. The federal judge assigned to the case awarded $5,000 in liquidated damages for each intentional or reckless violation. Hence, the plaintiff-class received a judgment totaling $228 million. What Is BIPA? BIPA is an Illinois law enacted in 2008 that governs the use, collection and storage of biometric data, including retina or iris scans, fingerprints, voiceprints, and scans of hand or face geometry. The law requires private entities that use, collect, or store biometric data to: -- Receive written, informed consent prior to obtaining biometric data. -- Develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric data. -- Refrain from selling, leasing, trading or otherwise profiting from biometric data. -- Refrain from disclosing or disseminating biometric data. -- Store, transmit and protect from disclosure all biometric data in a manner at least as protective as it stores, transmits, and protects other confidential and sensitive information. Under BIPA, individuals may recover actual damages or liquidated damages of $1,000 per negligent violation or $5,000 per intentional or reckless violation, whichever is greater, in addition to injunctive relief, attorneys' fees, expert witness fees and other litigation expenses. State Supreme Court Cases Beyond the above case, there are two significant BIPA cases pending before the Illinois Supreme Court that will drive the outcome of pending and future actions. In Cothron v. White Castle System, Inc., the court will decide whether BIPA section 15(b) and (d) claims accrue when biometric data is first collected or disclosed, or with each subsequent scan or disclosure. The questions of when a BIPA violation occurs, or whether each scan is an individual violation, will have substantial impact on the damages plaintiffs may claim. For instance, if the jury in the above case had found the defendant violated section 15(b) as to each class member with each scan, the verdict could have been in excess of $100 billion, given the multiple scans of each class member during the relevant time. Likewise, if the court concludes in Cothron that a section 15(b) violation accrues with an individual's first scan, some class members in the above case may have their claims nullified as untimely, if they first provided biometric data to the company prior to April 4, 2014. In Tims v. Black Horse Carriers, Inc., the Illinois Supreme Court will review an appellate court's holding that claims related to BIPA sections 15(a), (b), and (e) have a five-year statute of limitations, and claims related to BIPA section (c) and (d) have a one-year statute of limitations. If the court holds that a lesser statute of limitations applies, the overall number of potential class members in pending and future claims will be reduced substantially. Key Takeaways One significant issue unanswered by the above verdict is what constitutes biometric data under BIPA. In that case, the defendant collected, used, and stored actual fingerprint images to identify drivers. BIPA includes fingerprints in the definition of protected biometric identifiers. The case did not address systems that encrypt or convert stored fingerprints into a mathematical representation or string of numbers. This technology question remains an important, viable defense in pending BIPA cases. The above verdict is a wakeup call for employers that collect, use, or store biometric data, as it demonstrates the potential exposure for failing to follow the statute's consent requirements. The jury's finding that the company's conduct was intentional or reckless may be subject to review, depending on the evidence elicited at trial. A reversal of that finding to reduce the company's conduct to negligent may reduce the penalty assessed to $1,000 per incident or $45.6 million, an incredibly hefty, but less jaw-dropping sum. Companies should be mindful that the Illinois Supreme Court in Cothron could hold that entities violate the statute each time a person scans their biometric data, rather than only upon collection. That would change when BIPA claims accrue for purposes of the applicable statute of limitations. James Zouras, the plaintiff's attorney who argued Cothron, rejected a "per scan" damages approach, due to the anticipated constitutional due process problems that would ensue. For example, if an employee using a biometric time clock scans four times a day (to start and end the day and for meal breaks), BIPA arguably would be violated 20 times per week or 1,040 times per year. The liquidated damages in this circumstance quickly accrue to more than $1 million per employee per year. That makes little sense when the Illinois General Assembly contemplated $1,000 for a negligent violation and $5,000 at most for an intentional or reckless violation. To avoid potential BIPA violations and lawsuits, companies may want to ensure receipt of informed, written consent prior to collection of biometric data and comply with all other statutory requirements. [GN] YGRENE ENERGY: Dismissal Judgments in Morgan & Roberts Suits Upheld ------------------------------------------------------------------- In the cases, BARBARA MORGAN, et al., Plaintiffs and Appellants v. YGRENE ENERGY FUND, INC., et al., Defendants and Respondents. JANET ROBERTS, et al., Plaintiffs and Appellants v. RENEW FINANCIAL GROUP, LLC, et al., Defendants and Respondents, Case Nos. D079364, D079369 (Cal. App.), the Court of Appeals of California for the Fourth District, Division One, affirms the trial court's order sustaining the Defendants' demurrers without leave to amend, and entering a judgment of dismissal in each case. The issue in these consolidated appeals is whether the Plaintiffs were required to first exhaust administrative tax remedies before filing the lawsuit. The issue arises in a novel context where property tax and home improvement financing intersect. In 2008, California enacted a Property Assessed Clean Energy program (PACE) as a method for homeowners to finance energy and water conservation improvements. Like an ordinary home equity loan, a PACE debt is created by contract and secured by the improved property. But like a tax, the installment payments are billed and paid as a special assessment on the improved property, resulting in a first-priority tax lien in the event of default. The named Plaintiffs in these putative class actions are over 65 years old and entered into PACE contracts. Morgan, for example, borrowed over $100,000 for "reflective coating" and "energy efficient" windows. Her resulting 20-year special tax assessment bears 8.49% interest, increasing her property taxes by nearly $15,000 annually. Similarly, John Brown borrowed over $100,000 for a new air conditioner, a "cool roof," and "permeable ground cover," a fancy name for concrete pavers. The annual percentage rate on his PACE loan is 9.29 percent. His property taxes increased by over $11,400 annually for 20 years. The Defendants are private companies who either made PACE loans to the Plaintiffs, were assigned rights to payment, and/or administered PACE programs for municipalities. The gravamen of the complaint in each case is that PACE financing is actually, and should be treated as, a secured home improvement loan. The Plaintiffs allege that the Defendants engaged in unfair and deceptive business practices by violating consumer protection laws, including Civil Code section 1804.1 subdivision (j), which prohibits taking a security interest in a senior citizen's residence to secure a home improvement loan. The Defendants demurred to the complaints on the sole ground that the Plaintiffs failed to allege they first exhausted administrative remedies. The trial court agreed, sustained the demurrers without leave to amend, and entered a judgment of dismissal in each case. On appeal, the Plaintiffs primarily contend they were not required to pursue administrative remedies because they have sued only private companies and do not challenge "any aspect of the municipal tax process involved." But, the Court of Appeals holds that the complaints seek tax refunds, an injunction against future tax assessments, and removal of tax liens. Despite their assertions to the contrary, the Plaintiffs do challenge their property tax assessments. And although they have not sued any government entity, the consumer protection statutes under which they brought their action cannot be employed to avoid the limitations and procedures set out by the Revenue and Taxation Code." The Plaintiffs also contend that the exhaustion rule should not apply because their liability theories involve legal issues that an assessor's board lacks expertise to resolve. The Legislature, however, has given such boards "'jurisdiction over nonvaluation issues,'" the Court of Appeals explains. Thus, it concludes that the Plaintiffs were required to submit their claims through the administrative appeals process in the first instance. Their failure to do so requires the judgments to be affirmed. Hence, the judgments are affirmed. The Respondents are entitled to costs on appeal. A full-text copy of the Court's Nov. 1, 2022 Order is available at https://tinyurl.com/2dsn5pyd from Leagle.com. James Swiderski -- law@whatisthelaw.com -- for the Plaintiffs and Appellants. Buckley, Fredrick S. Levin -- flevin@buckleyfirm.com -- and Ali M. Abugheida -- aabugheida@buckleyfirm.com -- for Defendants and Respondents Ygrene Energy Fund, Inc., GoodGreen 2016-1, GoodGreen 2017-1, GoodGreen 2017-2, GoodGreen 2018-1, GoodGreen 2019-1, GoodGreen 2015 LLC, GoodGreen 2016-1 LLC, GoodGreen 2016-1 Trust, GoodGreen Holdings 2016-A Trust, GoodGreen 2017-1 Trust, GoodGreen Funding 2016-1 LLC, GoodGreen Funding 2017-1 LLC, GoodGreen 2017-2 LLC, GoodGreen Funding 2017-R1 LLC, GoodGreen Funding 2018-1 LLC, GoodGreen Holdings 2016-A Trust, Renew Financial Group LLC, Renew 2017-1, Renew 2017-2, and Renew 2018-1. Reed Smith, Jesse L. Miller -- jessemiller@reedsmith.com -- David J. de Jesus -- ddejesus@reedsmith.com -- and Emily F. Lynch -- elynch@reedsmith.com -- for Defendants and Respondents Wilmington Trust, N.A., as Trustee of Hero Funding Trust 2015-2, Hero Funding Trust 2015-3, Hero Funding Trust 2016-1, Hero Funding Trust 2016-2, Hero Funding Trust 2017-1, Hero Funding Trust 2017-3, and Hero Funding Trust 2018-1. Akin Gump Strauss Hauer Feld and Neal R. Marder -- nmarder@akingump.com -- for Defendants and Respondents Golden Bear 2016-1, LLC, Golden Bear 2016-2, LLC, and Golden Bear 2016-R, LLC. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2022. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***