/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/221216.mbx C L A S S A C T I O N R E P O R T E R Friday, December 16, 2022, Vol. 24, No. 245 Headlines 1614 MADISON PARTNERS: Class of Tenants Certified in Wise Suit 7-ELEVEN INC: Ninth Cir. Affirms Final Judgment in Haitayan Suit AEGEAN MARINE: Utah Retirement Seeks to Certify Class Action AFFIRM HOLDING: Bids for Lead Plaintiff Appointment Due February 6 ALAMEDA COUNTY, CA: Male Prisoners Seek to Certify Inmate Class ALLIANZ LIFE: Small Seeks Leave to File Documents Under Seal ALLIANZ LIFE: Small Suit Seeks to Certify Rule 23 Class AMAZON.COM LLC: Amended Scheduling Order Entered in Chandler ANTHEM BLUE: Refuses to Allow Self-Funded Health Plans, Suit Says ANTHEM COS: Harris Case Stayed Pending Bankruptcy Filings Amendment APPLE INC: Faces Class Action Over Airtags Stalking Risks APPLE INC: Indiana Murder Case Cited in Class Action Lawsuit AVIS BUDGET: Munday Suit Alleges Illegal Website Wiretapping BLACKHAWK NETWORK: Faces Suit Over Failure to Secure Consumer Data BROCK PIERCE: Hearing for Class Cert. Reset for Jan. 24, 2023 BURGER KING: Coleman, et al., Seek More Time to File Class Cert. CAMPBELL SOUP: Yoshida Complaint Dismissed With Leave to Amend CHARLOTTE METRO: Denial of Arbitration Bid in Canteen Suit Reversed CHICAGO, IL: Bids to Dismiss Walker Class Suit Granted in Part COLGATE-PALMOLIVE: Faces Class Action Over EltaMD Sunscreens CONCENTRIX SOLUTIONS: Arizona Court Dismisses Barnett Class Suit CONDUENT EDUCATION: Class Settlement in Chery Suit Wins Final Nod CONNECTICUT: Bid for Class Certification in Quint v. Lamont Denied CVS PHARMACY: Ninth Cir. Affirms Verdict in Washington Class Suit DAO RESTAURANT: Thornton Files Suit Over Alleged Tip Skimming EASTERSEALS-GOODWILL: Faces Class Action Over Alleged Data Breach ECONO LODGE: Judge Certified Class Action Suit Over Fire Damages ELEVANCE INC: Faces Suit Over Mismanagement of Retirement Plans EPIC GAMES: Faces Class Suit in Quebec Over Addictive Video Game F45 TRAINING: Bragar Eagel Files Securities Class Action Lawsuit FTX TRADING: CEO Faces 7 Class Action Suits Since Bankruptcy GAP INC: Bids for Lead Plaintiff Appointment Due February 3, 2023 HONDA DEVELOPMENT: Fails to Pay Proper Wages, Scarbrough Alleges IRIS ENERGY: Bids for Lead Plaintiff Appointment Due January 14 JOHNSON CONTROLS: Fails to Pay Proper Wages, Wisniewski Alleges LASTPASS US: Faces Class Suit Over Unprotected Customers' Info LAUNDRESS NEW YORK: Issues Safety Notice Amid Class Action MAJOR ENERGY: Denial of Stay Pending Arbitration in Glikin Affirmed MALTA: Faces Class Action Lawsuit Over Overcharged Utility Bills MARINOSCI LAW: Parties Seeks to Modify Briefing Deadlines MASTERCARD INC: GBP600,000 Ads Campaign Class Action Suit Began MATCH GROUP: Sued Over Tinder's Photo Verification Features MDL 3010: Help Desk to Remove Redacted Doc in Google Antitrust Suit MEDICAL CITY: Court Terminates Bid for Leave & Class Cert. Bid META PLATFORMS: Bid to Dismiss Klein's Advertiser Class Suit Denied MONSANTO CO: Long Beach to Receive $7.5 Million in Settlement MONTCALM COUNTY, MI: Board Hears Update on Foreclosure Lawsuit MYLAN NV: Court Overrules Objections to Aug. 23 Order in KPH Suit NEOGENOMICS INC: Bid for Lead Plaintiff Appointment Due Feb. 6 NEWAGE INC: Rosen Law Firm Files Securities Class Action Lawsuit PARSEC INC: Remand of Johnson Class Suit to State Court Denied PHARMAGENICS LLC: Ibarra Sues Over Mislabeled Diet Pill Products PITTSBURGH, PA: Suit Claims Discriminatory COVID-19 Mandate PROCTER & GAMBLE: Settles Benzene Aerosol Class Action for $8-Mil. RACKSPACE TECHNOLOGY: Faces Class Action Over Ransomware Attack RACKSPACE TECHNOLOGY: Fails to Prevent Data Breach, Suit Alleges REAL CONCRETE: Court Certifies FLSA Collective Action in Snider RICE DRILLING: Class Certification Hearing Set for Jan. 12, 2023 SHI INTERNATIONAL: Fails to Protect Employees' Info, Suit Claims SILVERGATE CAPITAL: Bids for Lead Plaintiff Appointment Due Feb. 6 SILVERGATE CAPITAL: Glancy Prongay Files Securities Class Lawsuit SLEEPY'S LLC: N.J. Court Refuses to Certify Class in Gundell Suit SPECTRUM PHARMA: Bids for Lead Plaintiff Appointment Due Feb. 2 THOMAS SALOW: Must Respond to Class Cert Bid by Jan. 13, 2023 TICKETMASTER ENTERTAINMENT: Taylor Swift Fans File Antitrust Suit TOUR RESOURCE: Bid for Class Settlement Approval Partly Granted TOYOTA MOTOR: Class Certification Deadlines Entered in Squires TP APPAREL: Web Site Not Accessible to Blind, Pena Suit Alleges TRULIEVE INC: Faces Class Suit Over Mass Layoffs Without Notice TSCHETTER SULZER: Class Suit to Continue Despite Dismissal Bids UBER TECHNOLOGIES: McGuireWoods Attorneys Discuss 9th Cir. Ruling UNION SECURITY: Class Certification Deadlines Amended in Class Suit UNITED SERVICES: Fourth Amended Sched Order Entered in Tomczak UNITED STATES: Court Refuses to Certify Class in Fisher Suit VERU INC: Bids for Lead Plaintiff Appointment Due February 6 VITAMIN COTTAGE: Seeks to Decertify Class in Levine Suit WESTERN AUSTRALIA: Faces Suit on Behalf of Banksia Hill Detainees WINEDOWN INCORPORATED: Fails to Pay Proper Wages, Sorto Alleges ZILLOW GROUP: Court Narrows Claims in Jaeger Securities Class Suit Asbestos Litigation ASBESTOS UPDATE: Enviro-Safe Must Cease Operations to Settle Claims ASBESTOS UPDATE: Honeywell Agrees to $1.3BB Asbestos Trust Fund ********* 1614 MADISON PARTNERS: Class of Tenants Certified in Wise Suit -------------------------------------------------------------- In the case, Wise, Brett Plaintiff v. 1614 Madison Partners, LLC, Defendant, Index No. 154592/2022, Motion Seq. No. 002 (N.Y. Sup.), Judge Arlene P. Bluth of the Supreme Court of New York County grants the Plaintiff's motion for class certification. The putative class action involves the state tax abatement program available for new housing developments commonly known as the 421-a Program. The issue in the case is the initial rent set by the landlord once these new developments are ready for occupancy. The Plaintiff contends that the Defendant intentionally registered rents with the applicable governmental agency that were higher than permissible as part of an effort to extract higher rents under the applicable statutory scheme. According to him, the Defendant would offer rent concessions (such as a free month) but did not register the actual net amount paid by the tenants as required under law. In the instant motion, the Plaintiff moves to certify a class to include all current and former tenants of the building at issue who resided in the apartments after May 27, 2016. He claims that the proposed class meets all of the statutory requirements under CPLR Sections 901 and 902 to certify a class action. In opposition, the Defendant argues that class certification is inappropriate because the Plaintiff did not offer sufficient evidence to show it was misrepresenting that a construction project, which was used to grant concessions, was ongoing. Additionally, it argues he was not harmed by the rent charges because he received rent credits for the specified 2017-2018 rental year, which continued through the COVID-19 pandemic. The also Defendant argues that the Plaintiff cannot meet any of the factors a Court considers when evaluating whether class certification is appropriate, namely that the class requires individual analyses of the concessions offered and the rental amounts paid. Furthermore, it argues this matter is better suited for the Division of Housing and Community Renewal (DHCR) instead of this Court, as an administrative proceeding is cost-free and would be better equipped to handle the issues stated. Additionally, it contends the six-year statute of limitations does not apply because the claims accrued prior to 2019, the year the Housing Stability and Tenant Protection Act (HSTPA) expanded the statute of limitations from four years to six years. In reply, the Plaintiff insists that it need not prove the merits of its case to prevail on this motion. He claims that he has satisfied the factors required to certify a class and that the Defendant wishes to move the forum to DHCR so no members of the class would be notified. Additionally, the Plaintiff asserts that the Defendant's contention that the class members require individualized analyses of the facts is misguided, as many rent-stabilization matters have similar facts and are routinely certified as a class. Finally, he maintains that the six-year statute of limitations applies because the claim was ripe when the HSTPA was passed in 2019, making. Judge Bluth finds that the Plaintiff has satisfied the numerosity factor. Although the Plaintiff does not state a specific number, she observes that the building has over 40 residential units and there has undoubtedly been some turnover thereby increasing the total members of the purported class. She also finds that there is the requisite commonality between the class members. The issues in the case relate to the concessions offered as part of leases for residential units in the same residential building. Judge Bluth further finds that typicality factor is also satisfied. The Plaintiff's allegations are likely to be identical for all class members: that Defendant allegedly registered an initial rent higher than what was permissible under the 421-a program. As for adequacy of representation, she finds that the named Plaintiff here is an adequate representative as his affidavit demonstrates that his claims fall within those claimed by the class, he is competent and understands the issues in the case. She also finds that the class counsel is competent and experienced. Regarding superiority, Judge Bluth finds that a class action is the superior method of adjudicating this dispute rather than forcing every individual tenant (or former tenant) to bring an individual case about the permissible rent. With respect to CPLR 902 factors, she holds that maintaining the matter as a class action is in the best interest of the Plaintiffs, many of whom may not be aware this action is pending. Finally, Judge Bluth agrees with the Defendant that the applicable statute of limitations is four years and that the class period should commence on May 27, 2018. The Plaintiff alleges the Defendant's overcharging conduct occurred at or around 2016 and was evident when he first signed a lease in October 2017. Because the HSTPA was passed in 2019, well after certain overcharges in the case, the revised six-year statute of limitations is inapplicable to the class period. Therefore, the class is limited to those who were tenants on or after May 27, 2018. In view of the foregoing, Judge Bluth grants the motion for class certification. She certifies the proposed class and subclass with the class to compose of tenants who reside in or formerly resided in the subject premises on or after May 27, 2018. She appoints Wise is appointed as the Lead Plaintiff and Newman Ferrara LLP is appointed as the class counsel. Judge Bluth approves the proposed notice to the class members. The Defendant will provide the Plaintiff with a list of current tenants by Jan. 6, 2023. It will also provide the last known contact information for former tenants by Jan. 6, 2023. Conference is set for Jan. 18, 2023, at 11:30 a.m. By Jan. 11, 2022, the parties are directed to upload 1) a stipulation about discovery signed by all parties, 2) a stipulation of partial agreement or 3) letters explaining why no agreement about discovery could be reached. The Court will then assess whether the conference is necessary. The failure to upload anything by Jan. 11, 2022 will result in an adjournment of the conference. A full-text copy of the Court's Dec. 6, 2022 Decision + Order is available at https://tinyurl.com/y97hjd29 from Leagle.com. 7-ELEVEN INC: Ninth Cir. Affirms Final Judgment in Haitayan Suit ---------------------------------------------------------------- In the cases, SERGE HAITAYAN, et al., Plaintiffs-Appellants v. 7-ELEVEN, INC., a Texas corporation, Defendant-Appellee. SERGE HAITAYAN, et al., Plaintiffs-Appellants v. 7-ELEVEN, INC., a Texas corporation, Defendant-Appellee, Case Nos. 21-56144, 21-56145 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms the district court's entry of final judgment in favor of 7-Eleven. Four 7-Eleven franchisees brought the putative diversity class action, contending that they should be classified as employees rather than as independent contractors under California law. After a bench trial, the district court entered a final judgment in favor of 7-Eleven, and the Plaintiffs have timely appealed. On appeal, the Plaintiffs argue that the district court erred by applying the test enunciated in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 769 P.2d 399 (Cal. 1989), rather than the "ABC" test adopted for California wage order violations in Dynamex Operations West, Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018). The Ninth Circuit reviews legal issues de novo and factual findings for clear error. It says its recent decision in Bowerman v. Field Asset Services, Inc., 39 F.4th 652 (9th Cir. 2022), controls most of the legal issues. The expenses at issue, including employee compensation and advertising, are just as distinct from Wage Order 9's concept of "tools and equipment" as were the Bowerman plaintiffs' fuel and insurance costs. Bowerman also holds that Assembly Bill ("A.B.") 5, which extends the ABC test to govern all Labor Code claims, Cal. Lab. Code Section 2775(b), does not apply retroactively to claims not rooted in a wage order. The Ninth Circuit holds that the district court erred by refusing to consider the Plaintiffs' claims that accrued after 2020, which are governed by A.B. 5 and, therefore, are subject to the ABC test. But that error is harmless. It points out that the district court made extensive factual findings that all three parts of the ABC test are met. The three prongs of the ABC test are included within the Borello test. In particular, the district court properly found that the Plaintiffs are engaged in a different course of business than 7-Eleven and that they engaged in a distinct business and held themselves out to be business owners. A full-text copy of the Court's Dec. 7, 2022 Memorandum is available at https://tinyurl.com/mnrek4d from Leagle.com. AEGEAN MARINE: Utah Retirement Seeks to Certify Class Action ------------------------------------------------------------ In the class action lawsuit RE AEGEAN MARINE PETROLEUM NETWORK, INC. SECURITIES LITIGATION, Case No. 1:18-cv-04993-NRB (S.D.N.Y.), the Lead Plaintiff Utah Retirement Systems asks the Court to enter an order: 1. certifying this action as a class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3); 2. appointing Lead Plaintiff as Class Representative of the Class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3); and 3. appointing Berman Tabacco as Class Counsel pursuant to Fed. R. Civ. P. 23(g). Natural Grocers is your neighborhood organic grocer offering everything from organic produce to free range eggs to health coaching. A copy of the Plaintiff's motion dated Dec. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3FMtWLn at no extra charge.[CC] The Plaintiff is represented by: Patrick T. Egan, Esq. Joseph J. Tabacco, Jr., Esq. Nicole Lavallee, Esq. Christopher T. Heffelfinger, Esq. Kristin Moody, Esq. Jeffrey Rocha, Esq. BERMAN TABACCO One Liberty Square Boston, MA 02109 Telephone: (617) 542-8300 Facsimile: (617) 542-1194 E- mail: pegan@bermantabacco.com jtabacco@bermantabacco.com nlavallee@bermantabacco.com cheffelfinger@bermantabacco.com kmoody@bermantabacco.com jrocha@bermantabacco.com AFFIRM HOLDING: Bids for Lead Plaintiff Appointment Due February 6 ------------------------------------------------------------------ Pomerantz LLP announces that a class action lawsuit has been filed against Affirm Holding, Inc. (NASDAQ: AFRM), and certain officers. The class action, filed in the United States District Court for the Northern District of California, and docketed under 22-cv-07770, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Affirm securities between February 12, 2021 and December 15, 2021, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased or otherwise acquired Affirm securities during the Class Period, you have until February 6, 2023 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Affirm operates a platform for digital and mobile-first commerce in the United States and Canada. The Company's platform includes point-of-sale payment solutions for consumers, merchant commerce solutions, and a consumer-focused app. Particularly, Affirm offers a payment service known as "buy-now, pay-later" ("BNPL"), which allows consumers to purchase a product immediately and pay for it at a later time, usually over a series of installments. According to the Company, "[u]nlike legacy payment options and our competitors' product offerings, which charge deferred or compounding interest and unexpected costs, we disclose up-front to consumers exactly what they will owe - no hidden fees, no penalties." The complaint alleges that, throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations, and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Affirm's BNPL service facilitated excessive consumer debt, regulatory arbitrage, and data harvesting; (ii) the foregoing subjected Affirm to a heightened risk of regulatory scrutiny and enforcement action; and (iii) as a result, the Company's public statements were materially false and misleading at all relevant times. On December 16, 2021, the Consumer Financial Protection Bureau ("CFPB") announced that it had launched an inquiry into Affirm's BNPL payment service, along with four other companies offering BNPL. The CFPB indicated that it was concerned about how BNPL leads to "accumulating debt, regulatory arbitrage, and data harvesting," and is seeking data on the risks and benefits of the products. In a statement addressing BNPL services, the CFPB Director stated, "[t]he consumer gets the product immediately but gets the debt immediately too." On this news, Affirm's stock price fell $11.74 per share, or 10.58%, to close at $99.24 per share on December 16, 2021. Pomerantz LLP, with offices in New York, Chicago, Los Angeles, London, Paris, and Tel Aviv, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, Pomerantz pioneered the field of securities class actions. Today, more than 85 years later, Pomerantz continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. [GN] ALAMEDA COUNTY, CA: Male Prisoners Seek to Certify Inmate Class --------------------------------------------------------------- In the class action lawsuit captioned as ALAMEDA COUNTY MALE PRISONERS And Former Prisoners, DANIEL GONZALEZ, et al. on behalf of themselves and others similarly situated, as a Class, and Subclass v. ALAMEDA COUNTY SHERIFF'S OFFICE, et al, Case No. 3:19-cv-07423-JSC (N.D. Cal.), the Plaintiffs ask the Court to enter an order: 1. Certifying that the action is maintainable as a class action under Federal Rules of Civil Procedure 23(a) and 23(b)(2) as to each of Plaintiffs' causes of action; 2. Certifying a class of: "All adults who have been incarcerated anytime between November 19, 2017 and the final resolution of this lawsuit, in Santa Rita Jail;" and 3. Certifying three sub-classes are defined as: "All inmates who have been incarcerated for a period of time in Santa Rita Jail from November 19, 2017 through until the conclusion of this litigation," and while incarcerated at Santa Rita Jail: a. Insufficient Food Sub-Class: suffered injury due to insufficient or inedible food; b. Deficient Sanitation Sub-Class, suffered injury due to insufficient or deficient sanitation; and, c. Deprivation of Medical Care Sub-Class, suffered injury due to denial of adequate or appropriate medical attention and services; 7. Appointing the following individuals as representatives of the Inmate Class and sub-classes: a. Donald Corsetti, Darryl Geyer, James Mallett, David Misch, Timothy Phillips, Eric Rivera, Rasheed Tucker, and Eric Wayne to represent the inmate class. b. David Misch and James Mallett to represent the Insufficient Food sub-class; those inmates who suffered injury due to insufficient or inedible food; c. Darryl Geyer, James Mallett, Timothy Phillips, Eric Rivera, Rasheed Tucker, and Eric Wayne to represent the Deficient Sanitation; those inmates who have suffered injury due to insufficient or deficient sanitation; and, d. Donald Corsetti, Darryl Geyer, James Mallett, Timothy Phillips, Rasheed Tucker, Eric Rivera, and Eric Wayne to represent the Deprivation of Medical Care sub- class. Santa Rita Jail, the county jail for Alameda County Jail, and the largest county jail in the Bay Area, is a carceral institution based upon two basic operational policies. The first is a for-profit policy, which systemically works to extract as much money from inmates and their families as the system allows. Despite it's almost half a billion dollar publicly funded budget, the jail seeks extra income, ostensibly for inmate programs or activities from inmates and their families. The jail has resisted public auditing. The Defendant Alameda County Sheriff's Office charges inmate high fees for phone calls, use of the jail tablets, and commissary. In addition, the jail derives profits from inmate labor in food services. Because the jail has contracted with outside for-profit corporations, defendant Sheriff's contracts and policies and procedures have built in incentives to reduce costs of all services to inmates which results in severely limited, reduced and therefore inadequate and insufficient basic services in the areas of food, health care, sanitation (which includes laundry, personal sanitation and grooming) and inmate activities. The second operational policy is one oriented toward punishment and deprivations. The second basic policy, as publicly articulated by Defendant Ahern, is that Santa Rita Jail's prisoners, including all pretrial prisoners, who are 85% of the prisoner population, are criminals, who have lied their entire lives, are not to be believed and despite the constitutional presumption of innocence, all prisoners, including pretrial detainees, are deserving of punishment and deprivations and should receive punishment and deprivations during their incarceration in Santa Rita Jail. Due to Defendants' centralized policies and practices, this matter will necessarily involve umerous questions of fact and law that are common to the proposed class and subclasses. These questions, in turn, will generate common answers. A copy of the Plaintiffs' motion dated Dec. 8, 2022 is available from PacerMonitor.com at https://bit.ly/3FhoQVU at no extra charge.[CC] The Plaintiffs are represented by: Yolanda Huang, Esq. LAW OFFICES OF YOLANDA HUANG 2748 Adeline Street, Suite A Berkeley, CA 94703 Telephone: (510) 329-2140 Facsimile: (510) 580-9410 E-mail: yhuang.law@gmail.com ALLIANZ LIFE: Small Seeks Leave to File Documents Under Seal ------------------------------------------------------------ In the class action lawsuit captioned as LAWANDA D. SMALL, Individually, and on Behalf of the Class, v. ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA, a Minnesota Corporation, Case No. 2:20-cv-01944-TJH-KES (C.D. Cal.), Plaintiff Lawanda moves thers Court for leave to file under seal unredacted versions of exhibits to the Declaration of Craig Nicholas in support of Plaintiff's Motion for Class Certification, which contain information designated as confidential by Defendant Allianz pursuant to the Protective Order. The Unredacted Versions of Documents Proposed to be Filed Under Seal" will follow under a separate docket entry. The Plaintiff seeks leave to file under seal the following exhibits to the Declaration of Craig Nicholas in support of Plaintiff's Motion for Class Certification: Exhibit 1 -- excerpts from the transcript of the deposition of Defendant, via 30(b)(6) representative Shelley Kunde, dated August 12, 2022 Exhibit 5 -- exemplar of Defendant's sortable electronic Excel spreadsheet BATES labeled "ALZ_SMALL00015871.XLSX" wherein Defendant identified 1,843 policies issued or delivered in California before January 1, 2013, that lapsed on after January 1, 2013. Allianz contends that the information contained in the documents, is non-public, sensitive, confidential, proprietary, and/or contains third party private information and therefore needs to be treated as confidential under the Protective Order. The Plaintiff understands that, under Local Rules, Allianz will be required to further justify why these documents should be sealed in a separate filing. Plaintiff respectfully requests that this Court grant her Application for Leave to File Documents Under Seal. A copy of the Plaintiff's motion dated Dec. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3uygW5o at no extra charge.[CC] The Plaintiff is represented by: Craig M. Nicholas, Esq. Alex Tomasevic, Esq. NICHOLAS & TOMASEVIC, LLP 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 325-0492 Facsimile: (619) 325-0496 E-mail: cnicholas@nicholaslaw.org atomasevic@nicholaslaw.org - and - Jack B. Winters, Jr., Esq. Sarah Ball, Esq. WINTERS & ASSOCIATES 8489 La Mesa Boulevard La Mesa, CA 91942 Telephone: (619) 234-9000 Facsimile: (619) 750-0413 E-mail: jackbwinters@earthlink.net gcapielo@einsurelaw.com sball@einsurelaw.com ALLIANZ LIFE: Small Suit Seeks to Certify Rule 23 Class ------------------------------------------------------- In the class action lawsuit captioned as LAWANDA D. SMALL, Individually, and on Behalf of the Class, v. ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA, a Minnesota Corporation, Case No. 2:20-cv-01944-TJH-KES (C.D. Cal.), the Plaintiff asks the Court to enter an order: 1. certifying proposed Class under Federal Rule of Civil Procedure 23: "All owners, or beneficiaries upon a death of the insured, of the Defendant's individual life insurance policies issued in California before 2013 that Defendant lapsed or terminated for the non-payment of premium in or after 2013 without first complying with all the requirements of California Insurance Code Sections 10113.71 and 10113.72;" 2. Appointing her as the Class Representative; and 3. Appointing the law firms of Nicholas & Tomasevic, LLP and Winters & Associates as Class Counsel. In this action, the Plaintiff alleges that the Defendant failed to comply with California Insurance Code sections 10113.71 and 10113.72. The Plaintiff asserts that class certification is appropriate under Federal Rule of Civil Procedure 23(a) because the Class that Plaintiff seeks to certify is so numerous that joinder of all members is impracticable. The Plaintiff also asserts that class certification is appropriate under Federal Rule of Civil Procedure 23(b)(3) because the questions of law or fact common to class members predominate over any questions affecting only individual members. This Motion is based upon this Notice; the Memorandum of Points and Authorities in support thereof; the Declarations of Craig Nicholas, Jack Winters, and Lawanda D. Small, and their attached exhibits; the files and records of the Court in this action; the arguments of counsel to be presented at the hearing; and such other information as the Court may find appropriate to consider. A [Proposed] Order is submitted herewith. Allianz Life is a leading provider of retirement solutions including fixed and variable annuities, and life insurance for individuals. A copy of the Plaintiff's motion dated Dec. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3Y67eVr at no extra charge.[CC] The Plaintiff is represented by: Craig M. Nicholas, Esq. Alex Tomasevic, Esq. NICHOLAS & TOMASEVIC, LLP 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 325-0492 Facsimile: (619) 325-0496 E-mail: cnicholas@nicholaslaw.org atomasevic@nicholaslaw.org - and - Jack B. Winters, Jr., Esq. Sarah Ball, Esq. WINTERS & ASSOCIATES 8489 La Mesa Boulevard La Mesa, California 91942 Telephone: (619) 234-9000 Facsimile: (619) 750-0413 E-mail: jackbwinters@earthlink.net sball@einsurelaw.com AMAZON.COM LLC: Amended Scheduling Order Entered in Chandler ------------------------------------------------------------ In the class action lawsuit captioned as AMANDA CHANDLER, et al, on behalf of themselves and all others similarly situated v. Amazon.com LLC et al., Case No. 3:20-cv-00265-DWD (S.D. Ill.), the Hon. Judge David W. Dugan entered an amended scheduling order as follows: -- Plaintiff(s) depositions shall be April 7, 2023 taken by: -- The Defendant(s) depositions April 7, 2023 shall be taken by: -- Third Party actions must be July 7, 2023 commenced by: -- Expert witnesses for Class Certification, if any, shall be disclosed, along with a written report prepared and signed by the witness pursuant to Federal Rule ofCivil Procedure as follows: Plaintiff(s) expert(s): June 23, 2023 Defendant(s) expert(s): August 18, 2023 -- Depositions of Class Certification expert witnesses must be taken by: Plaintiff(s) expert(s): October 27, 2023 Defendant(s) expert(s): October 27, 2023. -- Plaintiff(s) Motion for Class October 31, 2023 Certification and Memorandum in Support shall be filed by: A copy of the Court's order dated Dec. 6, 2022 is available from PacerMonitor.com at https://bit.ly/3F8mnwR at no extra charge.[CC] The Plaintiff is represented by: Christopher Cueto, Esq. James E. Radcliffe, Esq. LAW OFFICE OF CHRISTOPHER CUETO, LTD. 7110 West Main Street Belleville, IL 62223 E-mail: ccueto@cuetolaw.com jradcliffe@cuetolaw.com - and - Lloyd M. Cueto, Esq. LAW OFFICE OF LLOYD M. CUETO, P.C. 7110 West Main Street Belleville, IL 62223 E-mail: cuetolm@cuetolaw.com - and - Gregory A. Cade, Esq. Kevin B. McKie, Esq. Gary Anderson, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Ave. S. Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 E-mail: GregC@elglaw.com kmckie@elglaw.com Gary@elglaw.com The Defendant is represented by: Natalie J. Kussart, Esq. Zachary S. Merkle, Esq. SANDBERG PHOENIX & von GONTARD P.C. 600 Washington Avenue - 15th Floor St. Louis, MO 63101-1313 Telephone: (314) 231-3332 Facsimile: (314) 241-7604 E-mail: nkussart@sandbergphoenix.com zmerkle@sandbergphoenix.com - and - Robert J. Katerberg, Esq. Douglas F. Curtis, Esq. James K. Lee, Esq. Andrew D. Bergman, Esq. ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave, NW Washington, DC 20001-3743 Telephone: (202) 942-5000 Facsimile: (202) 942-5444 E-mail: robert.katerberg@arnoldporter.com doug.curtis@arnoldporter.com james.lee@arnoldporter.com andrew.bergman@arnoldporter.com ANTHEM BLUE: Refuses to Allow Self-Funded Health Plans, Suit Says ----------------------------------------------------------------- Berger Montague announces that a class action complaint has been filed alleging that network access provider Anthem, recently rebranded as Elevance, unlawfully refuses to allow self-funded health plans with which it contracts to access their own plan claims data in violation of federal laws. Anthem allegedly does this as part of its efforts to conceal its improper repricing of health provider claims and its failure to pass on the full value of the discounts it has negotiated with providers to the self-funded plans that purchase access to the Anthem network at Anthem's negotiated rates. Berger Montague's clients, Bricklayers and Allied Craftworkers Local 1 Fund (BAC Local 1) and Sheet Metal Workers Local 40 Fund (SMW Local 40) operate self-funded health plans and contracted with Anthem for many years to have access to the Anthem network at Anthem's negotiated discounts when members receive medical care or services from an Anthem network provider. BAC Local 1 and SMW Local 40 separately negotiated with Anthem for months to attempt to gain access to their own health plan claims data which they are required to periodically review to fulfill their monitoring function imposed by the Employee Retirement Income Security Act of 1974 ("ERISA"). Their complaint alleges that Anthem acted unreasonably, engaging in protracted negotiations with both funds despite having no intention to provide access to the data being requested. The complaint further alleges that Anthem hid behind unlawful gag clauses in its administrative services agreements with BAC Local 1 and SMW Local 40 to deny the funds access to their own claims data, including the negotiated discounted rates with providers. Despite Anthem's refusal to give BAC Local 1 and SMW Local 40 access to their own health plan claims data, the Trustees of both funds obtained limited network claims data and compared the prices paid for services to health plan members to the Anthem negotiated rates posted on certain hospital websites. The Trustees found that the hospital's negotiated rates with Anthem posted on the hospital websites in machine-readable files did not match the amounts that Anthem caused BAC Local 1 and SMW Local 40 to pay for covered network services. The complaint alleges that Anthem failed to apply the promised discounts found in each health plan's administrative service agreement and failed to pass on the entire discount to which each plan was entitled based on the negotiated rates between Anthem and the providers in the Anthem network. In recent years, both health plans, like other employers and self-funded plans in America, have had to make difficult decisions in paying for their continuously rising health care costs. For example, the complaint alleges that in 2022, BAC Local 1 was forced to divert $2 per-employee-per-hour of employer contributions earmarked for its pension fund to its health fund to cover expected health fund shortfalls. In 2019, the Local 40 Fund was forced to switch from a zero deductible plan to a high deductible plan to keep the Local 40 Fund solvent. The complaint alleges that as a result, some Local 40 Fund participants have reported that they are avoiding going to the doctor and others are rationing or have stopped taking prescribed medications. BAC Local 1 and SMW Local 40 are represented by Shanon J. Carson, Julie S. Selesnick, Karen L. Handorf, and Abigail G. Gertner of Berger Montague PC. They are joined by Gregg D. Adler of Livingston, Adler, Pulda, Meiklejohn & Kelly. More information about the case, including a copy of the class action complaint, is available at: https://bergermontague.com/cases/class-action-litigation-filed-against-anthem/ Berger Montague is a national law firm headquartered in Philadelphia with additional offices in Minneapolis, Washington, D.C., San Diego, and San Francisco. The firm litigates complex civil cases and class actions in federal and state courts throughout the United States. Berger Montague has played lead roles in major cases for over 52 years and has recovered over $36 billion for its clients and the classes they have represented. The Berger Montague Healthcare & Benefits Law Group is a team of experienced healthcare attorneys and consultants without conflicts who serve self-funded health plans and service providers. The team has a long record of success dealing with carriers, TPAs, and hospital systems to address the outrageous behaviors, prohibited transactions, and self-dealing that have drastically increased healthcare costs. Berger Montague brings decades of experience from the U.S. Department of Labor, private law practice, and the insurance industry, as well as a deep bench of subject-matter experts, and is uniquely qualified to advise self-funded health plans on innovative ways to contain costs that are grounded in laws and regulations. [GN] ANTHEM COS: Harris Case Stayed Pending Bankruptcy Filings Amendment ------------------------------------------------------------------- In the case, ASHLEY HARRIS, on behalf of herself, Nationwide FLSA Collective Plaintiffs, and the Class, Plaintiff v. THE ANTHEM COMPANIES, INC., Defendant, Case No. 1:22-cv-00002-JMS-MJD (S.D. Ind.), Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana, Indianapolis Division: a. denies Anthem's Partial Motion to Dismiss; and b. grants in part Ms. Harris Motion to Stay this Case Pending the Amendment of Her Bankruptcy Filings. Ms. Harris, on behalf of herself and others similarly situated, initiated the lawsuit in January 2022 against her former employer, Anthem. In the operative Third Amended Complaint, Ms. Harris alleges violations of the federal Fair Labor Standards Act ("FLSA") (Count I) and of multiple state wage and hour laws (Counts II and III). The state law claims include alleged violations of the Virginia Minimum Wage Act, the state law applicable to Ms. Harris's employment at Anthem (Count II), and the laws of 23 other states where Anthem operates (Count III). Anthem is a healthcare enterprise that provides programs and services to uninsured and underinsured individuals. It is organized under the laws of Indiana but provides its services nationwide in at least the following states: Arkansas, California, Colorado, Connecticut, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Puerto Rico, South Carolina, Tennessee, Texas, Virginia, Washington, West Virginia, and Wisconsin. Ms. Harris worked as a non-exempt Enrollment Specialist at Anthem in Virginia, where she resides. She asserts that Anthem forced enrollment specialists and salespersons to work overtime hours by implementing minimum productivity quotas that required overtime hours to meet. But if employees reported those overtime hours, Anthem would subject those employees to productivity reviews, reprimand, and even termination. Ms. Harris contends that this policy and practice compelled employees to underreport their working hours and work off the clock to maintain job security and avoid productivity reviews, reprimand, and termination. Ms. Harris' Third Amended Complaint alleges three counts. Count I alleges a violation of the FLSA and seeks the certification of a nationwide opt-in collective action, seeking relief on behalf of Ms. Harris and other Anthem employees throughout the United States. Count II alleges violations of Virginia wage and hours laws and seeks relief pursuant to Federal Rule of Civil Procedure 23 on behalf of Ms. Harris and a subclass of Anthem employees in Virginia. Count III alleges violations of 23 other state wage and hours laws, also in the form of a Rule 23 class action, on behalf of Anthem employees in those states and any other state not yet specifically identified (except New York) but in which Anthem may have employees. Ms. Harris defines the Rule 23 class for Count III as: "All non-managerial employees classified by Anthem as non-exempt who engaged or facilitated in the enrollment and/or recertification of Anthem's clients (including but not limited to all non-managerial, Customer Service Representatives, Membership Enrollers, and Sales Representatives, throughout the United States with the exception of New York State) employed by Anthem in the three (3) years, or the relevant statutory period of each state's applicable labor law if longer, prior to the filing of the Complaint in this case." Ms. Harris proposes to designate subclasses as to each proposed state where Anthem operates. Anthem has filed a Partial Motion to Dismiss, seeking dismissal of the 23 other state law violations (Count III) pursuant to Federal Rule of Civil Procedure 12(b)(6). In addition, it was recently discovered that Ms. Harris filed a Chapter 13 bankruptcy petition in July 2019, but she never disclosed the lawsuit or the existence of the claims at issue in it to the Bankruptcy Court. As a result, Anthem has filed a Motion for Judgment on the Pleadings Based on Failure to Disclose Lawsuit in Bankruptcy, arguing that judicial estoppel prevents Ms. Harris from pursuing claims that she failed to disclose to the Bankruptcy Court and that she lacks standing to bring claims that belong to the bankruptcy estate. In response to Anthem's Motion for Judgment on the Pleadings, Ms. Harris filed a Motion to Stay this Case Pending the Amendment of Her Bankruptcy Filings, asking the Court to stay the case for 90 days to allow her to amend the filings in her bankruptcy case. It its Motion to Dismiss, Anthem argues that Count III must be dismissed because it cannot proceed on a "class basis" under Rule 23 for two reasons: (1) a class action is not superior to other methods of adjudication for this dispute; and (2) Ms. Harris lacks standing to pursue relief on behalf of Anthem employees outside of Virginia and cannot serve as class representative for the proposed subclasses of employees in states other than Virginia. In response, Ms. Harris argues that Anthem is impermissibly attempting to argue a Rule 23 motion for class certification before the exchange of any discovery. In reply, Anthem argues that its Motion to Dismiss is timely because dismissal may sometimes be proper at the pleading stage when "it is clear from the complaint that certification is improper." Further, it reiterates its argument that because Ms. Harris resides only in Virginia, she lacks standing to bring Count III on behalf of the proposed class. After examining the Rule 23 arguments, Judge Magnus-Stinson finds that (i) the presence of a potentially complex class action does not affect the plausibility or legal sufficiency of a claim; (ii) while Anthem correctly asserts that several courts have refused to certify a class because multiple state laws render it unmanageable, Ms. Harris also correctly points out that those courts have made that determination on a Rule 23 motion for class certification, not a Rule 12(b)(6) motion to dismiss; (iii) to make an appropriate class certification ruling with the multiple requirements of Rule 23 in mind, she requires a record and briefing adequate to address all Rule 23 requirements. With respect to standing, Judge Magnus-Stinson follows the direction of both the Supreme Court and the Seventh Circuit in deferring the determination on Anthem's Article III standing challenges to the class certification stage. The same is true for a determination regarding the manageability of a potential Rule 23 class action. She expresses no opinion as to the merits of either of these issues, but merely finds that a motion to dismiss is not the proper vehicle to consider them. Accordingly, she denies Anthem's Motion to Dismiss. In support of its Motion for Judgment on the Pleadings, Anthem points out that, to date, Ms. Harris has not disclosed the lawsuit or the existence of the claims at issue in it to the Bankruptcy Court, despite her duty to truthfully disclose all assets. Instead of responding to Anthem's Motion for Judgment on the Pleadings, Ms. Harris filed her Motion to Stay. In response, Anthem agrees that the Court should stay proceedings in this matter, but only for the purpose of ruling on Anthem's pending, unopposed motion for judgment on the pleadings," because the Court's determination of that motion will end the case. Judge Magnus-Stinson finds that a stay of the litigation is appropriate to provide Ms. Harris an opportunity to amend her bankruptcy filings. However, she reserves ruling on Anthem's Motion for Judgment on the Pleadings until after the stay is lifted, to ensure that all of the impacts of the bankruptcy proceeding on the lawsuit are properly accounted for. In sum, Ms. Harris' Motion to Stay is granted in part except as set forth, and the case is stayed for 90 days from the date of the Order. Anthem's Motion for Judgment on the Pleadings remains under advisement. Ms. Harris will file a Motion to Lift the Stay at the close of those 90 days or sooner if she amends her bankruptcy filings before then. In her Motion to Lift the Stay, she will describe the amendments made to her bankruptcy filings and outline what, if any, impact those amendments have on the litigation and on the disposition of Anthem's Motion for Judgment on the Pleadings. Briefing on the Motion to Lift the Stay will proceed in accordance with Local Rule 7-1. Although the case will be stayed, Judge Magnus-Stinson exempts from the stay Ms. Harris' pending Motion to Compel. The Magistrate Judge may issue any orders necessary to facilitate the briefing and resolution of that motion. In addition, notwithstanding the stay, the parties will complete briefing on Ms. Harris' pending Motion for Conditional Collective Certification pursuant to the briefing schedule currently in place. Ruling on this motion, however, will be reserved until the stay is lifted. A full-text copy of the Court's Dec. 7, 2022 Order is available at https://tinyurl.com/2w86etbh from Leagle.com. APPLE INC: Faces Class Action Over Airtags Stalking Risks --------------------------------------------------------- Ashley Belanger, writing for Ars Technica, reports that when Apple released AirTags in 2021, the small electronic tracking devices were touted by top executives as being "stalker-proof." Since then, Vice reported a minimum of 150 police cases documenting stalkers using AirTags, and there have already been two severe stalking cases involving AirTags that ended in murder in Ohio and Indiana. Confronted by police reports and concerns from privacy advocates, Apple released updates in February, claiming that new features would mitigate reported stalking risks. Stalking reports kept coming, though, and it increasingly seemed to victims that Apple had not done enough to adequately secure AirTags. Now, Apple is being sued by two women who claim that the company is still marketing a "dangerous" product. In the complaint filed on Dec. 6 in a federal court in California, the women suing Apple say that AirTags have become "one of the most dangerous and frightening technologies employed by stalkers." It has become the "weapon of choice," they say, because the small size makes the devices hard to detect, the accuracy of Apple's location tracking is "unparalleled," and the $29 price is extremely affordable. Victims say that stalkers can effectively track them, and if the device gets deactivated, AirTags are easy to replace at the next opportunity. These AirTags are supposed to work by emitting Bluetooth signals to Apple's massive "Find My" network of connected devices, accurately reporting the location of a missing AirTag to the owner. The coat button-size tracking devices can be easily clipped to key rings or dropped in purses to help owners recover lost items. But the AirTags are also so small that they can easily go undetected, especially when stalkers alter the devices to make them harder to find. For one woman suing, Lauren Hughes, her ex-boyfriend allegedly used a Sharpie to color the AirTag and hide it inside the wheel well of her car. The other woman suing, who remains anonymous out of fear for her physical safety, found an AirTag that her "estranged husband" had allegedly planted in her child's backpack. When she removed the device from the backpack, it was soon replaced by another. Lawyers representing the women suing did not immediately respond to Ars' request for comment. Apple previously acknowledged "reports of bad actors attempting to misuse AirTag for malicious or criminal purposes," describing in a blog how the company had partnered with law enforcement to help trace AirTags back to the stalkers who owned them. They also said they worked with safety groups to take other steps to prevent unwanted tracking and promised to release a "series of updates" before the end of this year. So far, Apple has not made any mention on its blog of those updates and did not immediately respond to Ars' request to comment on whether those updates are still expected to be released in 2022. The lawsuit Apple now faces is not just about two women being harassed by stalkers using AirTags. It's a class-action lawsuit that represents all persons residing in the United States who own iOS and Android devices, as well as other sub-classes at risk of stalking. Plaintiffs suing represent various stalked classes. They are asking for a jury to assess whether, in addition to injunctive relief and damages, Apple should owe punitive damages for allegedly releasing a defective product with insufficient safeguards to prevent stalking, then profiting off sales after allegedly misleading the public to believe AirTags were "stalker-proof." "This is problematic for all Class members, as they are unlikely to learn of the dangers associated with AirTags until they have become victims of stalking," the complaint states. AirTag safeguards against stalking deemed deficient The complaint alleges that the Apple AirTag has "revolutionized" location-based stalking by creating a tool with the sole purpose of transmitting its location to its owner and then dismissing warnings from privacy experts to "consider its inevitable use in stalking." Electronic Frontier Foundation's director of cybersecurity, Eva Galperin, described AirTags as "uniquely harmful" and was quoted in the complaint as saying that "the network that Apple has access to is larger and more powerful than that used by the other trackers. It's more powerful for tracking and more dangerous for stalking." Quickly after releasing AirTags, the complaint says that immediately, Apple was inundated with "chilling" stalking reports, including stalkers sewing AirTags into clothing to evade discovery. Soon, Apple was "scrambling to address its failures in protecting people from unwanted, dangerous tracking," the complaint says. One of the earliest solutions from Apple was providing text-based notifications for iOS users, alerting them when there was an "AirTag Found Moving With You." However, users couldn't always trust this alert was accurate -- or referring to an AirTag device located near them in a crowd -- and they couldn't always find the tracking device, even if they knew it existed. For Android users, the situation was even bleaker because Apple had no way to send automatic alerts. Android users, thus, became "nearly defenseless to tracking/stalking using an AirTag," because the only way to find out was to proactively download an app called Tracker Detect and manually search for AirTags. "Any Android owner who downloads Tracker Detect must decide when and where to scan for AirTags—something a person being unknowingly tracked would be unlikely to do," the complaint states. Another solution that Apple has implemented is playing sound notifications when an AirTag is detected, chiming an alert at 60 decibels ("as loud as a normal conversation between two people," the complaint says). This is not an effective solution, the complaint says, for hearing-impaired people or anyone located in a loud environment when the warning sounds. It also doesn't help when stalkers cleverly place the device out of hearing range. In Hughes' case, with an AirTag hidden in the wheel well of her car, she'd likely never hear the warning chime, and when she attempted to engage the AirTag feature to chime when she was searching for the hidden device, the chime only rang once. Women suing say that even if the text and sound notifications were effective solutions for iOS users, stalkers have already found a way around the safeguard. "Silent AirTags" are sold on e-commerce sites like Etsy and eBay, the complaint says, disabling the speaker that is supposed to protect vulnerable targets of stalking. (A recent Ars review found "silent AirTags" for sale on Etsy, but not eBay.) In addition to these features, Apple also promised more updates yet to be announced in 2022. These include "precision finding" to help victims using iPhone 11, iPhone 12, and iPhone 13 to locate unwanted trackers, as well as syncing text alerts with sound alerts to "help in cases where the AirTag may be in a location where it is hard to hear, or if the AirTag speaker has been tampered with." They also promised "to use more of the loudest tones to make an unknown AirTag more easily findable." The most troublesome aspect of Apple relying on alerts like these to prevent stalking—rather than proactively designing a product that cannot be used by stalkers—is that these alerts are typically substantially delayed. Sometimes victims have been tracked for days before they received an alert, which would give a stalker plenty of time to note their new address or frequented locations. Apple has said that it will release an update "to notify users earlier that an unknown AirTag or 'Find My' network accessory may be traveling with them," but has not yet clarified if that ever happened. For now, victims like the women suing expect they will remain in danger of being unknowingly tracked as long as AirTags are sold as currently marketed. "The risks involved with a product like this being abused still seem like they far outweigh the convenience of finding a misplaced set of keys," the complaint says. [GN] APPLE INC: Indiana Murder Case Cited in Class Action Lawsuit ------------------------------------------------------------ wthr.com reports that Apple is facing a class action lawsuit over its AirTag devices allegedly being used to stalk people. An Indiana murder case is cited in the lawsuit. AirTags are supposed to be attached to personal property to help users locate items that are misplaced, but the class action federal lawsuit filed in San Francisco claims: "What separates the AirTag from any competitor product is its unparalleled accuracy, ease of use (it fits seamlessly into Apple's existing suite of products), and affordability. With a price point of just $29, it has become the weapon of choice of stalkers and abusers." The suit mentions an Indianapolis murder case from this summer. Gaylyn Morris admitted to police in court records that she put an AirTag in her boyfriend's car on June 3, tracked him to Tilly's Pub and Grill on the northeast side, caught him cheating and ran over him with her car, killing him. She is in jail awaiting a jury trial scheduled for Jan. 9. In Indiana, tracking someone with an electronic device without their consent is legal, as long as you don't trespass to plant the device. "Regardless of the legality or not, people will still use it for unintended purposes, for bad purposes," said Doug Kouns, CEO of Veracity Intelligence, Investigation, and Research. "I really think it would be a good idea to make it illegal by the general public to do these things." Kouns is a former FBI agent and is now a private investigator. He wants this kind of tracking limited to licensed private investigators and law enforcement, and people tracking their own property, not people. "As long as you have a permissible use, I think it's a valuable tool that can keep people safe," said Kouns. "They can keep things from being stolen." As safeguards, iPhone users receive a notification when an unknown AirTag is in their vicinity. And an AirTag will beep when away from its owner for an extended time. "The problem is when someone wants to use that for illegal purposes, to harass an ex or cause harm, or to steal things, it becomes a problem," said Kouns. Kouns would like to be involved in helping state lawmakers craft legislation for Indiana that already exists in other states limiting the use of tracking devices.[GN] AVIS BUDGET: Munday Suit Alleges Illegal Website Wiretapping ------------------------------------------------------------ JANICE MUNDAY, individually and on behalf of all others similarly situated, Plaintiff v. AVIS BUDGET GROUP, INC., Defendant, Case No. 2:22-cv-04807 (E.D. Pa., Dec. 02, 2022) is an action alleging the Defendant's unlawful interception of the Plaintiff's and Class members' electronic communications through the use of "session replay" spyware that allowed Defendant to watch and record Plaintiff's and the Class members' visits to its websites, in violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act. According to the complaint, the Defendant utilized "session replay" spyware, namely Quantum Metric and Microsoft Clarity, to intercept the Plaintiff's and the Class members' electronic computer-to-computer data communications with Defendant's websites, including how they interacted with the websites, their mouse movements and clicks, keystrokes, search terms, information inputted into the websites, and pages and content viewed while visiting the websites. The Defendant intercepted, stored, and recorded electronic communications regarding the webpages visited by the Plaintiff and the Class members, as well as everything the Plaintiff and the Class members did on those pages, says the suit. AVIS BUDGET GROUP, INC. operates as a vehicle rental and mobility solution service provider. The Company also participates in app-based and carsharing operations. [BN] The Plaintiff is represented by: Ari H. Marcus, Esq. MARCUS ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Telephone: (732) 695-3282 Fascimile: (732) 298-6256 Email: Ari@marcuszelman.com BLACKHAWK NETWORK: Faces Suit Over Failure to Secure Consumer Data ------------------------------------------------------------------ natlawreview.com reports that a 34-page class action was filed against Blackhawk Network for a data breach that occurred on MyPrepaidCenter.com in September 2022. The plaintiffs allege that Blackhawk Network's failure to prevent or detect this incident was "particularly egregious" since it operates a website where consumers can activate and manage prepaid gift cards, which requires collection of lots of sensitive and high-risk data. The incident involved unencrypted and unredacted names, email addresses, telephone numbers, and payment card data (such as card numbers, expiration dates, and CVV codes). The complaint states that Blackhawk had "blocked" the impacted prepaid cards, but did not address the data involved in the breach. The plaintiffs further allege that as a result of this incident and Blackhawk's failure to prevent or detect the incident, MyPrepaidCenter.com users have and will incur "real and imminent harm" such as unauthorized credit card charges, theft of their personal information, loss of use and access to financial accounts, loss of time, and future risks related to the unauthorized access to their data by cybercriminals. This incident comes shortly after Blackhawk Network announced a similar breach in August 2020, when it detected suspicious activity on GiftCards.com. The action identifies the class as all users who were impacted by the September 2022 breach, including all individuals who received notification from Blackhawk. [GN] BROCK PIERCE: Hearing for Class Cert. Reset for Jan. 24, 2023 ------------------------------------------------------------- In the class action lawsuit captioned as Nathan Rowan v. Brock Pierce, Case No. 3:20-cv-01648 (D.P.R.), the Hon. Judge Marshal D. Morgan entered an order resetting Oral Argument/Motion Hearing for Class Certification for Jan. 24, 2023 at 2:00 PM in VTC Bridge RAM before Judge Raul M. Arias-Marxuach. Hearing access credentials are available in the following URL link:[LINK:https://www.prd.uscourts.gov/video-teleconference-vtc-hearing-links]. The nature of suit states restrictions of use of telephone equipment.[CC] BURGER KING: Coleman, et al., Seek More Time to File Class Cert. ---------------------------------------------------------------- In the class action lawsuit captioned as Walter Coleman, Marco DiLeonardo, Matthew Fox, Madelyn Salzman, Richard Moore, Susan Kruegel, William Malfese, Abraham Barja, Andrew Lingoes, Sha Badgett, Stephen Fader, William Turner, Chris Sours, and Victor Castillo, on behalf of themselves and all others similarly situated, v. Burger King Corporation, Case No. 1:22-cv-20925-RKA (S.D. Fla.), the Plaintiffs ask the Court to enter an order extending the deadline date for them to file their motion for class certification and exchange expert reports by three months. On June 14, 2022, the Court issued the Order Setting Trial and Pre-Trial Schedule, Requiring Mediation, And Referring Certain Matters To Magistrate Judge. The Order set the class certification filing deadline date for December 7, 2022, and the deadline to exchange expert reports for February 7, 2022, among other deadlines. Burger King is an American-based multinational chain of hamburger fast food restaurants. A copy of the Plaintiffs' motion to dated Dec. 6, 2022 is available from PacerMonitor.com at https://bit.ly/3FyYRug at no extra charge.[CC] The Plaintiffs are represented by: Anthony J. Russo, Esq. ANTHONY J. RUSSO, JR., P.A. d/b/a The Russo Firm 301 West Atlantic Avenue, Suite 0-2 Delray Beach, FL 33444 Telephone: (844) 847-8300 E-mail: anthony@therussofirm.com Mark Anthony Panzavecchia, Esq. PANZAVECCHIA & ASSOCIATES, PLLC 1000 Franklin Ave., Suite 204 Garden City, NY 11530 Telephone: (516) 965-2854 E-mail: mark@panzavecchialaw.com - and - James C. Kelly, Esq. THE LAW OFFICE OF JAMES C. KELLY 244 5th Avenue, Suite K-278 New York, NY 10001 Telephone: (212) 920-5042 E-mail: jkelly@jckellylaw.com CAMPBELL SOUP: Yoshida Complaint Dismissed With Leave to Amend -------------------------------------------------------------- In the case, KYLE BANTA YOSHIDA, et al., Plaintiffs v. CAMPBELL SOUP COMPANY, Defendant, Case No. 3:21-cv-09458-JD (N.D. Cal.), Judge James Donato of the U.S. District Court for the Northern District of California grants Campbell's motion to dismiss the first amended complaint but gives the Plaintiffs one final opportunity to amend. This is a putative class action brought by consumers against Campbell for providing deceptive and misleading labeling on its V8 fruit and vegetable juices. The Court granted Campbell's prior motion to dismiss the complaint, and gave the Plaintiffs leave to amend. The Plaintiffs filed the FAC, and Campbell has asked again to dismiss. The initial complaint alleged that the sugars occurring naturally in the fruits and vegetables used in Campbell's V8 juices made label phrases such as "boost your morning nutrition" and "healthy greens" deceptive to consumers. In effect, the Plaintiffs suggested that fruit and vegetable juices with no sugar added during processing were inherently unsafe for people to drink. Dismissal was warranted as "no reasonable consumer would be misled by the challenged phrases because the actual sugar content is plainly stated on the labels, along with disclosures of beneficial vitamin and nutrient content." Judge Donato holds that the FAC did not materially improve this shortfall. As before the Plaintiffs take issue with the labels' promise that the V8 juices will "boost your morning nutrition," citing health risks said to be associated with the consumption of fruit juices. The new allegations suffer from the same concern that sank the initial complaint, namely that a reasonable consumer would not believe that a container of processed juice sold on a grocery's dry goods shelf would provide the same benefits as eating a fresh and unprocessed fruit or vegetable, Judge Donato holds. To say that Campbell misled consumers into thinking that its juices and fresh produce were equivalents goes too far in light of the information disclosed on the labels. Campbell's use of the phrase "boost your morning nutrition" does lead to a different conclusion. The phrase does not convey that it is as healthy as whole fruit. That is all the more true in that the phrase is next to the disclosures of the juice's vitamin and nutrient content, which plainly state exactly the nutritional values the consumer would get. While the question of consumer deception can be a factual matter unsuitable for resolution on a pleadings motion, Judge Donato also finds that the Plaintiffs have not alleged factual content that allows the Court to draw the reasonable inference that the Defendant is liable for the misconduct alleged as informed by "judicial experience and common sense." In light of the Plaintiffs' prior opportunities to amend, a dismissal of the case would be permissible at this time. Even so, Judge Donato allows the Plaintiffs one final opportunity to plausibly allege a claim against Campbell. There may be circumstances in which relevant survey data can "make plausible the allegation that reasonable consumers are misled by" a product's labels and representations. The FAC has not demonstrated that, but Judge Donato cannot say at this point that it is impossible for the Plaintiffs to do. The Plaintiffs may file an amended complaint by Jan. 3, 2022, that is consistent with the Order. A failure to meet this deadline will result in a dismissal of the case with prejudice under Federal Rule of Civil Procedure 41(b). As before, the Court declines to reach Campbell's contention that the Plaintiffs' claims are preempted. Campbell's request for judicial notice is denied. Campbell's request to stay discovery is granted. Pleadings motions typically do not stay discovery, and it is not the Court's usual practice to do so, but the circumstances warrant a stay until a plausible claim is stated. A full-text copy of the Court's Dec. 2, 2022 Order is available at https://tinyurl.com/3u9frz7j from Leagle.com. CHARLOTTE METRO: Denial of Arbitration Bid in Canteen Suit Reversed ------------------------------------------------------------------- In the case, LATOYA CANTEEN AND PAMELA PHILLIPS, Plaintiff-Appellees v. CHARLOTTE METRO CREDIT UNION, Defendant-Appellant, Case No. COA22-59 (N.C. App.), the Court of Appeals of North Carolina reverses the interlocutory order denying the Defendant's motion to compel arbitration. Phillips was a deposit customer of Defendant Charlotte Metro Credit Union ("CMCU"). He commenced this action alleging that CMCU charged her numerous overdraft and non-sufficient funds fees that were not authorized by the deposit agreement. In 2014, the Plaintiff opened a checking account with CMCU, signing the Agreement. This Agreement provided that CMCU reserved the right to "change the terms of the agreement" and contemporaneously notify customers of any such modification. From 2018 to 2020, CMCU allegedly charged the Plaintiff fees not authorized by the Agreement. In 2021, CMCU amended the Agreement to include provisions requiring any dispute thereunder to be decided through arbitration and waiving class actions. In March 2021, the Plaintiff commenced the class action against CMCU seeking monetary damages, restitution, and declaratory relief in connection with CMCU's unauthorized overdraft fees. CMCU answered with a motion to stay and to compel arbitration, claiming that Plaintiff was bound by the terms of the Amendment. The trial court entered an order denying CMCU's motion. CMCU timely appealed. The Court of Appeals finds that the Agreement executed by the Plaintiff in 2014 contained a provision which provided the choice of law and procedure, including the appropriate forum, to resolve any disputes thereunder. The signed Agreement also contained a provision allowing CMCU to change the terms of the Agreement by notifying the Plaintiff of any such change. The Agreement further provided that CMCU could provide said notice electronically. The Plaintiff assented to these provisions when she executed the Agreement in 2014. For three consecutive months in 2021, CMCU emailed the Plaintiff her statement along with a notice of "Changes to the Membership and Account Agreements." The Plaintiff states that she never noticed these emails. She did not notify CMCU that she was opting out of the arbitration provision and, otherwise, continued to use her checking account. The Court of Appeals states that these above facts are undisputed. It concludes that these facts show the existence of a binding arbitration agreement. The arbitration provision was a change to the forum selection procedure contained in the original Agreement. The Plaintiff agreed to be notified by email of any such change. She, in fact, was notified on three different occasions. And she assented to the amendment by her failure to opt-out and her continued use of her checking account. Her failure to read the provisions is no excuse. The Plaintiff argues, and the trial court held, CMCU's contractual right to change the terms of the Agreement did not authorize CMCU to add provisions addressing an entirely new subject, such as arbitration. However, the Agreement did contain a "Governing Law" provision, which outlined the appropriate choice of law and forum for settling disputes. The Plaintiff was therefore on notice that CMCU could change this provision to allow for disputes to be settled, not in the court where CMCU was located, but rather in another forum, including before an arbitrator. Moreover, the Court of Appeals notes the Plaintiff might not have read the email notifications. However, she agreed to be bound to amendments when notified of them by email. And the Court of Appeals has long held that "the law will not relieve one who can read and write from liability upon a written contract, upon the ground that he did not understand the purpose of the writing, or that he has made an improvident contract, when he could inform himself and has not done so." Although the Plaintiff may take issue with the method in which notice was provided, the notice was sufficient. The Court of Appeals further notes that the Plaintiff was given the right to opt out of the provisions in the amendment yet failed to do so. Plaintiff claims that an ambiguity in the opt-out provision made it impossible for her to decline arbitration. The Court of Appeals construes the provision as to allow the Plaintiff 30 days from the date she received notice to opt out. Yet she failed to do so. For these reasons, the Court of Appeals reverses the trial court's order denying CMCU's motion to compel arbitration. It remands this matter, directing the trial court to stay the action pending arbitration. A full-text copy of the Court's Dec. 6, 2022 Order is available at https://tinyurl.com/48ndn9vz from Leagle.com. Cohen & Malad, LLP, by Vess A. Miller -- VMILLER@COHENANDMALAD.COM -- pro hac vice, and Van Kampen Law, PC, by Josh Van Kampen, for the Plaintiff-Appellee. Cranfill Sumner, LLP, by Mica N. Worthy -- mworthy@cshlaw.com -- Steven A. Bader -- sbader@cshlaw.com -- & Ryan D. Bolick -- rbolick@cshlaw.com -- for the Defendant-Appellant. CHICAGO, IL: Bids to Dismiss Walker Class Suit Granted in Part -------------------------------------------------------------- In the case, DANYETTA WALKER, et al., Plaintiffs v. CITY OF CHICAGO, et al., Defendants, Case No. 20-cv-01379 (N.D. Ill.), Judge Andrea R. Wood of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants in part and denies in part the Defendants' motions to dismiss the Plaintiffs' claims. Plaintiffs Joseph Walawski and Danyetta Walker failed to pay traffic ticket fines each owed to the City of Chicago and, as a result, their respective vehicles were towed, impounded, and sold for well below market value. Moreover, they did not receive payment or credit against their debts as a result of the sales. The Plaintiffs believe the City's practice violates the Fifth and Fourth Amendments to the United States Constitution, as well as Illinois constitutional, state, and local law. And so they have brought this putative class action against the City and United Road Trucking ("URT") to obtain injunctive and declaratory relief as well as damages. The City towed 19,665 cars in 2017 because of unpaid ticket debt. Pursuant to the Municipal Code of Chicago ("MCC"), when vehicle owners have two tickets that are unpaid for more than a year or three tickets that are unpaid at any time, the owners are subject to a series of escalating enforcement actions. The Plaintiffs allege that the purpose of this enforcement scheme is to collect debts owed to the City. URT, a Delaware corporation headquartered in Mokena, Illinois, provides towing and auto pound management services to the City. As a contractor, it is responsible for every step of the process between the initial tow and disposal of unclaimed vehicles. When a vehicle's owner cannot afford to pay for its release or the vehicle otherwise goes unclaimed, the City sells it to URT at scrap value. In 2017, URT paid around $4 million to the City in exchange for 24,000 towed vehicles with an estimated value of more than $22 million. The Plaintiffs propose to represent two classes: (1) Class: All vehicle owners who had their vehicle impounded and disposed of by the City of Chicago pursuant to MCC Section 9-100-120. (2) Notice Class: All vehicle owners who had their vehicle towed by or through the Department of Streets and Sanitation pursuant to MCC Section 9-92 that were disposed of by the City. The Plaintiffs assert 12 claims in the First Amended Complaint, including four on behalf of the Class (Counts I-IV) and eight on behalf of the Notice Class (Counts V-XII). Count I seeks declaratory and injunctive relief on behalf of the Class for the alleged taking and disposal of vehicles in violation of the Takings Clause of the Fifth Amendment (and the corresponding provision of the Illinois Constitution). Count II seeks damages for the Class pursuant to 42 U.S.C. Section 1983 for the allegedly unlawful policy, custom, or practice of taking vehicles without just compensation. Counts III and IV assert Illinois state-law claims for unjust enrichment against the City and URT, respectively, based on the alleged takings that form the basis for Counts I and II. Count V seeks declaratory and injunctive relief on behalf of the Notice Class that would prevent Defendants from disposing of unclaimed vehicles without sending required notices pursuant to the MCC and the Illinois Vehicle Code. Counts VI and VII assert claims for unjust enrichment against the City and URT, respectively, based upon the alleged failures to provide notice. Count VIII seeks mandamus relief on behalf of the Notice Class against the City requiring the sending of additional required notices of impending vehicle disposal consistent with the MCC and the Illinois Vehicle Code. Counts IX and X mirror Counts I and II in seeking declaratory and injunctive relief and damages from Defendants for the disposal of vehicles in violation of Takings Clause (and the corresponding provision of the Illinois Constitution), on the additional basis that the City failed to follow the MCC's requirements by not sending a second required notice. Finally, Counts XI and XII seek declaratory and injunctive relief as well as damages pursuant to 42 U.S.C. Section 1983 for alleged violations of the Fourth Amendment (and the corresponding provision of the Illinois Constitution) that occurred when the City unlawfully seized Plaintiffs' vehicles. The Defendants have moved to dismiss all the Plaintiffs' claims pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction and Rule 12(b)(6) for failure to state a claim. Judge Wood says that to survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. This pleading standard, she says, does not necessarily require a complaint to contain detailed factual allegations. Rather, a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The same plausibility standard applies under Rule 12(b)(1). First, Judge Wood finds that the Plaintiffs have alleged the unlawful acquisition and disposal of vehicles. They have also adequately pleaded a public purpose associated with the alleged takings. As there is no dispute that the Plaintiffs were not compensated for their lost vehicles -- the third element of a Takings Clause claim -- she finds that Counts IX and X state viable Takings Clause claims. Second, Judge Wood finds no reason to dismiss Counts V, VI, VII, and VIII on the ground that MCC Section 9-92-100 and 625 ILCS 5/4-208 provide no private right of action of their own. She opines that the Plaintiffs have adequately pleaded that the City was required to send two notices of the impoundment and pending disposal of their vehicles but only sent one. She also finds no conflict between the two-notice requirement of the state statute and the two-notice requirement of the City's ordinance. She does not reach the question of whether 625 ILCS 5/4-208(a) was specifically intended to limit the City's home rule power because she finds no intent in the ordinance to break from the state statute's notice requirements. Third, Judge Wood has dismissed the related claims in Counts I and II. Accordingly, she must dismiss as well the corresponding unjust enrichment claims in Counts III and IV. Counts VI and VII, however, assert claims for unjust enrichment based on the allegedly unlawful taking of vehicles without first satisfying the two-notice requirement. As discussed, those claims are adequately pleaded in Counts V, IX, and X. Accordingly, the related unjust enrichment claims also survive: the Plaintiffs have adequately pleaded that the Defendants unjustly (due to unconstitutional takings and two-notice requirement violations) retained a benefit (the proceeds from the sales of vehicles) to their detriment (Plaintiffs lost their vehicles and the benefit of the value of those vehicles without any corresponding reduction in their debts), and the Defendants' retention of the benefit allegedly violate fundamental principles of justice, equity, and good conscience. For these reasons, Counts VI and VII survive. Fourth, Judge Wood dismisses Counts XI and XII. She says the Plaintiffs do not contest the City's right to tow and impound their cars for ticket debt, which is the point at which they were meaningfully dispossessed of their vehicles. Thus, their Fourth Amendment claims find no footing. The seizures were complete when the vehicles were towed and impounded; the subsequent sale, auction, or destruction of the vehicles was not a further seizure. Fifth, Walker has standing to pursue injunctive and declaratory relief, Judge Wood holds. She also declines to hold at this early stage that injunctive and declaratory relief is not appropriate as to Walker because money damages can adequately remedy her harms. The Plaintiffs have not, however, offered a compelling theory for why Walawski is likewise subject to an immediate threat of future injury. They have not alleged that Walawski is unable to pay his tickets, that he lives in any particular zip code, that he earns a low income, or that he is likely to suffer the same harm again. Thus, Judge Wood dismisses Counts I, IX, and XI as to Walawski to the extent that he seeks declaratory and injunctive relief. Sixth, Judge Wood finds that URT is implicated only in the towing and impoundment of the vehicles, and the Plaintiffs do not adequately allege that the towing and impoundment, standing alone, violated the Takings Clause. The parties debate whether URT's actions were "under color of law," but Judge Wood need not reach this issue because the Plaintiffs have no plausibly alleged that URT was the moving force of the violations. She therefore dismisses the Plaintiffs' claims against URT in Count X. Finally, Judge Wood finds no reason to conclude that the immunity clause exempts tow companies from liability even when they, for example, charge more money than allowed for by statute or fail to wait for the required period before disposing of vehicles. She declines to dismiss Counts V and VII against URT on these grounds. For the described reasons, the Defendants' motions to dismiss are granted in part and denied in part. Judge Wood dismisses Counts I, II, III, IV, XI, and XII in their entireties; dismisses Count X with respect to URT only; and dismisses the request for declaratory and injunctive relief in Count IX with respect to Walawski only. She otherwise denies the motions. A full-text copy of the Court's Dec. 6, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/yvh2e7xd from Leagle.com. COLGATE-PALMOLIVE: Faces Class Action Over EltaMD Sunscreens ------------------------------------------------------------ Kelly Mehorter, writing for ClassAction.org, reports that a proposed class action alleges nine varieties of EltaMD "Transparent Zinc Oxide" sunscreens are misleadingly advertised in that they contain harmful active ingredients in addition to zinc oxide, a premium mineral ingredient. According to the 37-page lawsuit, the front labels of certain EltaMD sunscreens deceptively list zinc oxide as the product's only active ingredient despite the fact that the products contain substantial levels of less-desirable active chemical ingredients such as octinoxate, octisalate and octocrylene. Advertisements that describe the products as "Mineral Based" on online retail platforms like Amazon are likely to deceive consumers since nearly half of the sunscreens at issue contain a higher concentration of chemical ingredients than zinc oxide, the filing argues. The lawsuit alleges that defendants Colgate-Palmolive Company and CP Skin Health Group have used false labels to sell their sunscreens, which reportedly retail for $30 to $40 per bottle, at a premium price, capitalizing on consumers' willingness to pay more for products that use "physical" or "mineral" sunscreen ingredients. Per the complaint, these sunscreens offer numerous health and environmental advantages over chemical sunscreens. "As opposed to chemical-based sunscreen ingredients . . . which are absorbed into the skin, mineral sunscreen ingredients sit on the surface of the skin as an invisible 'physical' layer, therefore stopping most UV rays before they have a chance to penetrate the body," the case explains. Because active chemical ingredients in sunscreen can penetrate the skin and enter the bloodstream, these products may irritate sensitive or acne-prone skin, cause hormonal disruption and produce dangerous free radicals, the filing argues. The suit further relays that chemical sunscreen ingredients are detrimental to reefs and marine life, such that Hawaii has prohibited the sale of sunscreen products containing octinoxate. The case claims consumers would not have purchased the products, or would not have paid as much for them, had they known the sunscreen contained significant levels of chemical ingredients. The nine varieties of EltaMD sunscreens at issue in the lawsuit include: EltaMD UV Daily Broad-Spectrum SPF 40 Transparent Zinc Oxide; EltaMD UV Daily Broad-Spectrum SPF 40 Transparent Zinc Oxide, Tinted; EltaMD UV Clear Broad-Spectrum SPF 46 Transparent Zinc Oxide; EltaMD UV Clear Broad-Spectrum SPF 46 Transparent Zinc Oxide, Tinted; EltaMD UV Sport Broad-Spectrum SPF 50 Transparent Zinc Oxide; EltaMD UV Sheer Broad-Spectrum SPF 50+ Transparent Zinc Oxide; EltaMD UV Lotion Broad-Spectrum SPF 30+ Transparent Zinc Oxide; EltaMD UV Facial Broad-Spectrum SPF 30+ Transparent Zinc Oxide; and EltaMD UV Lip Balm Broad-Spectrum SPF 36 Transparent Zinc Oxide. The lawsuit looks to represent anyone in the United States who purchased any of the above-listed EltaMD "Transparent Zinc Oxide" sunscreens during the applicable statute of limitations period. [GN] CONCENTRIX SOLUTIONS: Arizona Court Dismisses Barnett Class Suit ---------------------------------------------------------------- In the case, Adam Barnett, Plaintiff v. Concentrix Solutions Corporation, et al., Defendants, Case No. CV-22-00266-PHX-DJH (D. Ariz.), Judge Diane J. Humetewa of the U.S. District Court for the District of Arizona grants the Motion to Dismiss Plaintiff's Collective and Class Action Complaint filed by Concentrix Solutions Corp. and Concentrix CVG Customer Management Group Inc. The Plaintiff seeks to lead a collective class action against Concentrix for allegedly violating Federal and Arizona State labor laws. Concentrix Solutions, a New York for-profit corporation, and Concentrix CVG, an Ohio for-profit corporation, jointly provide marketing services through technology solutions for customers throughout the United States. On Oct. 1, 2021, the Plaintiff submitted an electronic application to work as a Senior Advisor II for Sales at Concentrix's Tempe, Arizona facility. The position provides telephone sales and services to Arizona customers. He was hired on Oct. 4, 2021 at an hourly wage rate of $20 per hour. Concentrix employees, such as the Plaintiff, are eligible for various types of incentive pay if they meet certain metrics set by Concentrix. When submitting his employment application, the Plaintiff signed an acknowledgment that set forth the terms and conditions of employment with Concentrix. In accepting employment at Concentrix, the Plaintiff signed a "Reaffirmation of Application Acknowledgment." In the Collective and Class Action Complaint, the Plaintiff alleges Concentrix failed to pay him all wages due -- including regular time, overtime, and Paid Sick Time -- with factored incentive pay. He brings the following three causes of action: Count I for failure to pay overtime wages and preserve accurate time records under the Fair Labor Standards Act (FLSA) 29 U.S.C. Section 207 et seq.; Count II for failure to pay timely wages due under the Arizona Wage Statute A.R.S. Section 23-350 et seq.; and Count III for failure to pay paid sick time under the Arizona Paid Sick Time Statute A.R.S. Section 23-371 et seq. The Plaintiff seeks to bring Count I as a collective action under the FLSA on behalf of himself and all similarly situated current and former employees employed by Concentrix within the last three years prior to his filing of his Complaint. He further seeks to bring Counts II and III as a class action under the Federal Rules of Civil Procedure 23(a) and (b)(3 on behalf of himself and all similarly situated current and former Concentrix employees employed by Concentrix in Arizona from Feb. 18, 2019, to present. Concentrix moves to dismiss the Plaintiff's collective and class action claims from the Complaint pursuant to the waiver contained in the Application Acknowledgment signed by the Plaintiff. Though not explicitly stated, Judge Humetewa construes Concentrix's Motion to Dismiss as a Federal Rules of Civil Procedure 12(b)(6) motion for failure to state a claim alleging Plaintiff voluntarily and contractually waived his right to lead or participate in a collective or class action upon signing the Application Acknowledgment. In ruling on the Motion, she considers the Application Acknowledgement attached to both Concentrix's Motion and the Plaintiff's under the incorporation by reference doctrine. Because the plain language of the waiver is clear and unambiguous, the central issue in deciding the Motion is whether the class action wavier in the Acknowledgement is enforceable against the Plaintiff. It appears the parties agree that Arizona contract law applies to the present dispute. Concentrix maintains the Acknowledgement is a valid, binding contract under Arizona law, and such waivers have been upheld as enforceable by other courts despite the absence of an arbitration agreement. The Plaintiff argues the Acknowledgment should not be enforced against him because (1) certain terms therein are substantively and procedurally unconscionable; (2) the unconscionable terms cannot be severed from the rest of the Acknowledgment; and (3) public policy supports this case proceeding collectively instead of individually. Judge Humetewa first discusses the validity of the Acknowledgment under Arizona law. She then examines the parties' respective arguments regarding the enforceability of the provisions of the Acknowledgement. She concludes the portion of the Acknowledgement containing the class action waiver is enforceable. The Plaintiff may proceed with his claims individually but not as a class. As to the validity of the Application Acknowledgement as a binding contract, Judge Humetewa agrees with Concentrix that the Acknowledgement constitutes a valid agreement between the parties. Concentrix represents the Plaintiff assented to the Acknowledgement terms as conditions of his employment when he accepted Concentrix's employment offer. The Plaintiff does not argue otherwise. Regarding enforceability, Judge Humetewa holds that (i) FLSA class action waivers are enforceable outside of the arbitration context; (ii) the Application Acknowledgement is not procedurally unenforceable; (iii) the Application Acknowledgement is unconscionable and unenforceable because the Application Acknowledgement's provision shortening the applicable SOL under the FLSA, 29 U.S.C. Section 255, from two-three years to six months is substantively unconscionable as it abridges the Plaintiff's rights under the FLSA; and (iv) severs the unconscionable SOL provision and enforce the remainder of the Application Acknowledgement, which includes the enforceable class action wavier. For these reasons, Judge Humetewa grants Concentrix's Motion to Dismiss. She concludes the Application Acknowledgement signed by the Plaintiff constitutes a valid, binding contract, and the class action waiver therein is enforceable. She severs the unconscionable statute of limitation provision in the Acknowledgement and enforces the remainder of the Acknowledgement against the Plaintiff. Therefore, the Plaintiff must bring his three causes of action as an individual, but not as a class. Judge Humetewa denies as moot (i) the Plaintiff's Motion to Certify Class, to Authorize Notice, and for Expedited Discovery and (ii) the Plaintiff's Motion for Leave to File Under Seal. A full-text copy of the Court's Dec. 7, 2022 Order is available at https://tinyurl.com/5d26cdce from Leagle.com. CONDUENT EDUCATION: Class Settlement in Chery Suit Wins Final Nod ----------------------------------------------------------------- In the case, JEFFREY CHERY, on behalf of himself and all others similarly situated, Plaintiff v. CONDUENT EDUCATION SERVICES, LLC, formerly known as ACS, ACCESS GROUP, INC., and ACCESS FUNDING 2015-1, LLC, Defendants, Case No. 1:18-CV-75 (N.D.N.Y.), Judge David N. Hurd of the U.S. District Court for the Northern District of New York enters a Final Order approving the class action settlement. On Jan. 18, 2018, Chery filed the class action against Conduent, Access Group, Access Funding (collectively "Conduent"), three entities that held or serviced Federal Family Education Loan Program ("FFELP") loans. According to the complaint, Conduent interfered with borrowers' rights to prepay or consolidate their FFELP loans in accordance with guarantees set out in the written loan agreements and federal law. On April 24, 2018, Conduent moved to dismiss Chery's complaint. That motion was denied. Thereafter, the parties engaged in some contested discovery before U.S. Magistrate Judge Christian F. Hummel. On Jan. 15, 2021, Chery moved under Federal Rule of Civil Procedure 23 to certify a class of student loan borrowers whose right to prepay their FFELP loans was thwarted because Conduent failed to provide them with a timely Loan Verification Certificate ("LVC"). On May 5, 2021, Chery's motion for class certification was granted over Conduent's opposition. The Court appointed Chery as representative and certified the following Class: All student loan borrowers who submitted an application to consolidate one or more FFELP Loans into a Direct Consolidated Loan between Jan. 18, 2012, and the date of the Order certifying the Class, for which the Defendants failed to provide an LVC within 10 days of receiving the request therefor. On Aug. 13, 2021, the parties cross-moved for summary judgment. Chery sought judgment in favor of the Class on the General Business Law Section 349 claim. Conduent sought to dismiss the action in its entirety. It also moved to preclude Chery's expert on damages. Chery's motion was granted and the Defendants' motions were denied. Thereafter, the parties reached a settlement. The matter was stayed until the agreement could be finalized. On July 22, 2022, Chery moved for preliminary approval of the settlement and, inter alia, an Order directing notice to the proposed settlement class. That motion was granted. The Court scheduled a Settlement Fairness Hearing to determine whether final approval of the Settlement is warranted. Chery has since moved for final approval. Upon review of Chery's memorandum of law and the supporting documentation in light of the governing law, and after hearing from the parties at the Settlement Fairness Hearing held in open court at the scheduled date and time, Judge Hurd grants the motion for final approval, finding the settlement is fair, reasonable, and adequate, and in the best interests of the Class. He approves the Stipulation and Settlement. The Settlement will be consummated in accordance with the terms and provisions of the Stipulation. The Plaintiff, all the Class Members, and the Defendants are bound by the terms of the Settlement as set forth in the Stipulation. The Action and all claims that are or have ever been contained therein, as well as all of the Released Claims, are dismissed with prejudice to the Plaintiff, the Class Members, and all other Releasing Parties. The parties are to bear their own costs except as otherwise provided in the Stipulation. All Released Defendants as defined in the Stipulation are released in accordance with, and as defined in, the Stipulation. Class Members who have not made timely objections to the Settlement or Motion for Attorneys' Fees, Expenses, and Class Representative Service Award in the manner provided for in the Notices are deemed to have waived any objections by appeal, collateral attack, or otherwise. All Class Members who did not timely exclude themselves from the Class are bound by the terms and conditions of the Stipulation and this Final Judgment and release and forever discharge the Released Defendants from all Released Claims as provided for in the Stipulation and te Order. The Plaintiff's Counsel are awarded attorneys' fees in the amount of $1,083,333.33 and are awarded reimbursement of expenses in the amount of $72,667.11, both of which sums will be paid from the Settlement Amount. The Plaintiff, all Class Members, and all other Releasing Parties are barred and permanently enjoined from instituting, commencing, maintaining, or prosecuting in any court or tribunal any of the Released Claims against any of the Released Defendants. The Defendants and their successors or assigns are barred and permanently enjoined from instituting, commencing, maintaining, or prosecuting any claims relating to the institution, prosecution, or settlement of: (a) the Action or (b) the Released Claims against the Plaintiff, the Class Members, or the Plaintiff's Counsel. The Plan of Allocation as set forth in the Notices is approved as fair and reasonable. The Plaintiff's Counsel is directed to arrange for the administration of the Settlement and payments to Eligible Class Members in accordance with its terms and conditions. The Action is dismissed with prejudice. The Court retains jurisdiction over compliance with the Stipulation and the Final Judgment. The Clerk of Court is directed to enter a Final Judgment accordingly, terminate the pending motions, and close the file. A full-text copy of the Court's Dec. 2, 2022 Final Order is available at https://tinyurl.com/2j4py53v from Leagle.com. CONNECTICUT: Bid for Class Certification in Quint v. Lamont Denied ------------------------------------------------------------------ In the case, RICHARD R. QUINT, Plaintiff v. LAMONT, et al., Defendants, Case No. 3:22-cv-1263 (VAB) (D. Conn.), Judge Victor A. Bolden of the U.S. District Court for the District of Connecticut: a. dismisses all federal law claims in the Amended Complaint without prejudice; b. declines to exercise supplemental jurisdiction over Mr. Quint's state law claims; c. denies Mr. Quint's Motion for Class Certification; and d. denies as moot Mr. Quint's Motion for Preliminary Injunction Motion to Appoint Counsel, and Ex Parte Motion for Injunction. Mr. Quint, currently confined at Corrigan-Radgowski Correctional Center in Uncasville, Connecticut, has filed an Amended Complaint pro se under 42 U.S.C. Section 1983. He names five individuals as defendants, Governor Ned Lamont, Commissioner Angel Quiros, Warden Robert Martin, Deputy Warden Foote, and Deputy Warden Oles. He also includes, as a sixth defendant, all correctional officers at Corrigan. In addition, Mr. Quint has filed four motions: a motion for preliminary injunction, a motion for class certification, a motion for appointment of counsel, and an ex parte motion for injunction. The Individual Defendants are named in individual and official capacities. Mr. Quint seeks damages and injunctive relief. He has styled his Amended Complaint as a class action. Mr. Quint allegedly was transferred to Corrigan on March 18, 2021. On June 11, 2021, he allegedly wrote to warden operations about being a pretrial detainee, being punished 13 times due to lock downs. Mr. Quint considers being confined to quarters during each lockdown to be punishment that cannot be imposed without due process. On June 30, 2021, Governor Lamont issued Executive Order No. 21-1 relating to treatment of incarcerated persons. Inmates at Corrigan allegedly have been confined to isolated confinement 118 times since Mr. Quint arrived. Mr. Quint alleges that Executive Order 21-1 created a liberty interest for inmates not to be confined in their cells for more than 20 hours per day. The majority of the lockdowns allegedly were caused by staff shortages. For example, when staff allegedly were called from their duties to take an inmate to the hospital, the facility allegedly went on lockdown. Many of the lockdowns allegedly caused inmates to be confined in their cells for over 22, if not 24, hours per day. Mr. Quint allegedly has kept a log of the days the facility was on lockdown and alleges that he was held in isolated confinement for 72 days in 20211 and 59 days in 2022. As support for his claim, he attached to the Amended Complaint an unsworn "affidavit" from Inmate Charles Richmond listing the lockdown dates and times between May 14, 2022, and Sept. 5, 2022. Some of inmate Richmond's dates differ from Mr. Quint's dates. Mr. Quint alleges that Defendants Martin, Foote, and Oles have violated departmental directives by failing to enforce rules regarding employee responsibility and have circumvented Executive Order 21-1 by instituting a lockdown for "every little thing" instead of "extraordinary circumstances." As a preliminary matter, Mr. Quint seeks to file a class action. Judge Bolden explains that class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. Specifically, Rule 23(a) identifies four prerequisites which must be met before a class action can be certified. The party seeking to certify a class bears the burden of demonstrating that the requirements of Rule 23 have been met. Specifically, Rule 23(a) identifies four prerequisites which must be met before a class action can be certified. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. As an unrepresented litigant, Mr. Quint can represent only himself. He cannot adequately represent a class of prisoners. As Mr. Quint cannot adequately represent a class of inmates, Judge Bolden need not address the remaining factors. He denies the request for class certification. Judge Bolden therefore considers the Amended Complaint as asserting Mr. Quint's claims only. Mr. Quint states that he brings the action for violation of his rights to liberty, to substantive due process, and to not be punished without due process of law under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution and Article first, sections 8 and 9 of the Connecticut Constitution. Within the body of the Amended Complaint, however, he lists his claims as violations of Executive Order 21-1 and prison directives: (1) Warden Martin, Deputy Warden Foote, and Deputy Warden Oles are allegedly in violation of Directive 2.17(5)(A) for failing to comply with Executive Order 21-1 and failing to enforce all prison rules, regulations, and directives; (2) Warden Martin, Deputy Warden Foote, and Deputy Warden Oles are allegedly in violation of Directive 2.17(5)(B) for failing to supervise correctional staff; (3) Warden Martin, Deputy Warden Foote, and Deputy Warden Oles have allegedly failed to enforce Executive Order 21-1; and (4) Commissioner Quiros has allegedly violated all of the above. Judge Bolden holds that (i) Mr. Quint's claims that the Defendants have violated Executive Order 21-1 or prison directives are not cognizable in this action and are dismissed under 28 U.S.C. Section 1915A(b)(1); (ii) as a pretrial detainee in a state facility, Mr. Quint cannot state a cognizable claim under the Fifth or Eighth Amendment; (iii) all of Mr. Quint's Fourteenth Amendment claims will be dismissed under 28 U.S.C. Section 1915A(b)(1) because his Complaint has not pled enough facts to state a claim to relief that is plausible on its face and Mr. Quint fails to state a plausible claim for denial of his right to procedural due process; and (iv) given that these are novel and undeveloped issues of state law -- and out of deference to the State as the final arbiter of its own constitution -- the Court declines to exercise supplemental jurisdiction over Mr. Quint's state constitutional claims. For the foregoing reasons, Judge Bolden dismisses Mr. Quint's federal law claims in the Amended Complaint without prejudice under 28 U.S.C. Section 1915A(b)(1). He declines to exercise supplemental jurisdiction over Mr. Quint's state law claims. If Mr. Quint believes he can state a plausible Fourteenth Amendment claim by addressing the deficiencies discussed, he may file a second Amended Complaint by Jan. 6, 2022. Failure to file a second Amended Complaint by that date will result in dismissal of the action with prejudice. Any new Amended Complaint must contain specific factual allegations showing how the alleged lockdowns have resulted in sufficiently serious deprivations of a basic human need or life necessity. Judge Bolden denies Mr. Quint's Motion for Class Certification. As this action is dismissed, his Motion for Preliminary Injunction, Motion to Appoint Counsel, and Ex Parte Motion for Injunction are denied as moot. If Mr. Quint files a second Amended Complaint that addresses the deficiencies identified in the Order, Judge Bolden will consider Mr. Quint's motions for injunctions and motion to appoint counsel to be renewed without the necessity of filing new motions on the docket. A full-text copy of the Court's Dec. 6, 2022 Initial Review Order is available at https://tinyurl.com/2wvvc3ne from Leagle.com. CVS PHARMACY: Ninth Cir. Affirms Verdict in Washington Class Suit ----------------------------------------------------------------- In the case, CARL WASHINGTON; ROBERT GARBER; STEPHEN SULLIVAN; DEBBIE BARRETT; DARLENE McAFEE; ROBERT JENKS; TYLER CLARK, Plaintiffs-Appellants v. CVS PHARMACY, INC., Defendant-Appellee, Case No. 21-16162 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms the district court's verdict in favor of CVS. The Appellants filed a putative class action against CVS, alleging violations of several state consumer protection statutes prohibiting deceptive trade practices. A jury returned a verdict in favor of CVS. The Appellants argue that the district court committed instructional error and erroneously excluded evidence. The Ninth Circuit reviews the district court's evidentiary rulings for an abuse of discretion. The Appellants assert that the district court erred by instructing the jury that CVS had no duty to disclose how copayments on generic prescriptions were calculated and by failing to give an instruction that its omission of information to its customers about how the copayment was calculated could give rise to liability under the relevant state statutes. The Ninth Circuit disagrees. It notes that a party is entitled to a jury instruction on a particular theory if the trial evidence provides a sufficient factual basis for invoking that theory. But if, as the Appellants contended, CVS violated the state statutes by providing incorrect information to pharmacy benefit managers that led to incorrect copayments, it would have been liable wholly apart from any omissions at the point of sale or from any duty to disclose. The district court committed no instructional error. The Appellants also challenge the third-party beneficiary instruction given by the district court. However, a prior panel of the Ninth Circuit determined that the Appellants' status as third-party beneficiaries presented a material issue of fact to be decided by the jury. Thus, the district court did not abuse its discretion in instructing the jury to consider, as a factor, the Appellants' status as third-party beneficiaries of the contracts between CVS and the various pharmacy benefit managers. Finally, the Appellants challenge the district court's exclusion of evidence of other litigation challenging CVS' failure to report discount program prices as usual and customary pricing. The district court reasoned that the other litigation was highly prejudicial, and that the case before the court needed "to be decided on its own merits." The district court's ruling was not "illogical, implausible, or without support in inferences that may be drawn from the facts in the record," the Ninth Circuit holds. A full-text copy of the Court's Dec. 6, 2022 Memorandum is available at https://tinyurl.com/ytr9es34 from Leagle.com. DAO RESTAURANT: Thornton Files Suit Over Alleged Tip Skimming ------------------------------------------------------------- JARED THORNTON; MALINI DHANARAJAN; and BLAIRE BENNETT, individually and on behalf of all others similarly situated, Plaintiffs v. DAO RESTAURANT, LLC, Defendant, Case No. 4:22-cv-00429-AW-MAF (N.D. Fla., Dec. 5, 2022) seeks to recover all tips kept by the Defendants, liquidated damages, interest, and attorneys' fees and costs. Plaintiff also seeks to recover the return of all kickbacks that caused their payments to go below the minimum wage. The Plaintiffs were employed by the Defendant as servers. DAO RESTAURANT, LLC owns and operates a restaurant located in Tallahassee, Leon County, Florida. [BN] The Plaintiffs are represented by: Kimberly De Arcangelis, Esq. Jolie Pavlos, Esq. MORGAN & MORGAN, P.A. 20 N. Orange Avenue, 15th Floor Orlando, Florida 32801 Telephone: (407) 420-1414 Facsimile: (407) 245-3383 Email: kimd@forthepeople.com jpavlos@forthepeople.com EASTERSEALS-GOODWILL: Faces Class Action Over Alleged Data Breach ----------------------------------------------------------------- Kelly Mehorter at classaction.org reports that a proposed class action alleges Easterseals-Goodwill Northern Rocky Mountain (ESGW) failed to prevent a month-long data breach in 2021 that compromised the personal information of potentially thousands of current and former employees and clients. According to the 35-page case, the job skill training nonprofit's failure to implement adequate cybersecurity measures allowed unauthorized actors to hack certain employee emails between October 12 and November 11 of last year. The breach, which ESGW reportedly discovered on July 20, 2022, exposed confidential employee and client information, including their names and Social Security and driver's license numbers, the filing relays. The complaint states that ESGW notified affected individuals of the incident on September 16, months after it discovered the breach. The company's failure to timely detect and report the data breach left victims "vulnerable to identify theft without any warnings to monitor their financial accounts or credit reports to prevent unauthorized use of their [personally identifiable information]," the case contends. The filing argues that ESGW's delayed notice "deliberately underplayed" the severity of the breach, stating that the company was unaware of any reports of misuse of personal information stored in the infiltrated system. It also offered affected individuals limited identity theft protection services and instructions to place a fraud alert on their credit files, the case says. Per the complaint, these measures will not sufficiently protect breach victims from the long-term threats associated with the exposure of private data, which may be traded on the dark web for months or even years. One plaintiff, a former ESGW employee, claims to have experienced since the incident fraudulent attempts to use her PayPal account to purchase firearms. Another plaintiff, a pseudonymous individual who is currently employed by ESGW, says that an unauthorized actor behind the breach has attempted to use his Visa card and Costco membership to make purchases in the wake of the incident. Both plaintiffs suffered an increase in spam and phishing attempts via phone, text and email, the suit asserts. As the case tells it, ESGW used outdated computer systems that are "easy to hack" and do not comply with reasonable industry standards for cybersecurity, including the NIST Cybersecurity Framework and the Center for Internet Security's Critical Security Control. ESGW also overlooked the Federal Trade Commission's cyber-security guidelines for businesses, the filing claims. The non-profit's negligence "demonstrates a willful and conscious disregard for privacy," the case charges. The lawsuit seeks to cover anyone in the United States whose personal information was compromised in the data breach disclosed by Easterseals-Goodwill Northern Rocky Mountain in September 2022.[GN] ECONO LODGE: Judge Certified Class Action Suit Over Fire Damages ---------------------------------------------------------------- Mark Nielsen at princegeorgecitizen.com reports that in a decision issued, B.C. Supreme Court Justice Marguerite Church found that the lawsuit filed by Leonard Hay in the month that followed the July 8, 2020 blaze at the Econo Lodge Motel met the standard. Three people were killed in the fire. "I find that the plaintiff has established that the pleadings disclose a cause of action, there is an objectively identifiable class, the claims of the class members raise common issues, a class proceeding is the preferable procedure, and that he is a suitable representative plaintiff," Church wrote. Hay, one of the motels occupants at the time of the fire, is seeking damages on behalf of those injured or who lost property in the blaze. Hay maintains he did not hear any fire alarms or see motel staff assisting in the evacuation and that he suffered second-degree and third-degree burns as well as psychological injuries and all of his possessions were destroyed. The development is a step in a longer process in which the plaintiffs must still prove various allegations on balance of probabilities and, if that succeeds, argue for damages. Mundi 910 Victoria Enterprises Ltd., Choice Hotels Canada Inc., City of Prince George and All Points Fire Protection Ltd. are named as defendants. Aztech Fire Safety Planning was dropped as a defendant in July 2021. Mundi and Choice Hotels are the motel's registered owner and franchisee, the city regulates building construction and maintenance, and is responsible for fire inspections and enforcing compliance with the BC Fire Code and the BC Building Code and All Points reviewed, tested, repaired and inspected the motel's fire safety systems prior to the fire. Prince George-based Dick Byl Law Corp. and Vancouver-based Camp Fiorante Matthews Mogerman LLP are listed as the plaintiff's lawyers. In her decision, Church said an investigator determined the fire was largely contained to one side of the motel and affected a limited number of rooms, that the fire originated in the vicinity of some old flooring material placed near the southeast stairwell as part of a renovation the motel had been undergoing and that the fire had been deliberately set. Prince George RCMP later found evidence of gasoline near the stairway, Church also noted in the decision and added that the plaintiff asserts that the arson was "only possible due to the negligence of the defendants, including inadequate security, lack of control of third parties on the premises, and unsafe conditions at the Motel." In a separate criminal proceeding, Justin Kyle Aster faces three counts of criminal negligence causing death, one count of arson in relation to an inhabited property and one count of arson damaging property in relation to the fire. That matter also remains before the court. [GN] ELEVANCE INC: Faces Suit Over Mismanagement of Retirement Plans --------------------------------------------------------------- TRUSTEES OF INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS LOCAL 1 CONNECTICUT HEALTH FUND; and TRUSTEES OF SHEET METAL WORKERS' LOCAL NO. 40 HEALTH FUND, individually and on behalf of all others similarly situated, Plaintiffs v. ELEVANCE, INC. F/K/A ANTHEM, INC.; ANTHEM HEALTH PLANS, INC. D/B/A ANTHEM BLUE CROSS AND BLUE SHIELD; ANTHEM BLUE CROSS; EMPIRE BLUE CROSS BLUE SHIELD; and EMPIRE BLUE CROSS, Defendants, Case No. 3:22-cv-01541-VLB (D. Conn., Dec. 5, 2022) alleges violation of the Employee Retirement Income Security Act of 1974 ("ERISA"). The Plaintiff alleges in the complain that Anthem is refusing to give Plaintiffs access to their Plan claims data because Anthem is disregarding the contractual provisions governing its claims administration duties performed on behalf of the Funds -- specifically, it is not uniformly applying its negotiated discount to the claims it processes under the Funds' Plans -- instead, Anthem is either unlawfully retaining the improperly discounted amounts for itself, or it is imprudently overpaying providers. Either way, Anthem is in breach of its fiduciary obligations to the Plans and the Plan participants and beneficiaries. Without access to plan information and participant claims data from Anthem, Plaintiffs are at risk of bearing co-fiduciary liability for Anthem's fiduciary breaches. To the extent that Anthem is paying network providers more than the contracted rate, it is breaching its fiduciary duties of loyalty and prudence and is not acting in accordance with the Plan documents and the ASOs governing the Plans. To the extent that Anthem is diverting plan assets designated for the payment of network claims for its own use, Anthem is violating the same requirements and is also receiving unreasonable compensation and is self-dealing in violation of ERISA's prohibited transaction rules, says the suit. ELEVANCE, INC. F/K/A ANTHEM, INC. is a health insurance provider. The company's services include medical, pharmaceutical, dental, behavioral health, long-term care, and disability plans through affiliated companies. [BN] The Plaintiff is represented by: Gregg D. Adler, Esq. LIVINGSTON, ADLER, PULDA, MEIKLEJOHN & KELLY, PC 557 Prospect Avenue Hartford, CT 06105 Telephone: (860) 233-9821 Facsimile: (860) 232-7818 Email: gdadler@lapmk.org - and - Karen L. Handorf, Esq. Julie S. Selesnick, Esq. BERGER MONTAGUE PC 2001 Pennsylvania Ave., NW, Suite 300 Washington, D.C. 20006 Telephone: (202) 559-9740 Facsimile: (215) 875-4604 Email: khandorf@bm.net jselesnick@bm.net - and - Shanon J. Carson, Esq. Abigail J. Gertner, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 Email: scarson@bm.net agertner@bm.net EPIC GAMES: Faces Class Suit in Quebec Over Addictive Video Game ---------------------------------------------------------------- Laura Marchand at CBC News reports that a Quebec Superior Court judge has authorized a class action lawsuit against Epic Games, the developers of the popular video game Fortnite. The suit was first brought to the courts in 2019 by three Quebec parents who claimed that Fortnite was designed to addict its users, many of them children, to the game. According to the original filing, the plaintiffs say their children exhibited troubling behaviors, including not sleeping, not eating, not showering and no longer socializing with their peers. According to the filing, one of the children was diagnosed with an addiction by an on-call doctor at a Quebec clinic, or CLSC, in the Lower St. Lawrence region. It also notes that the World Health Organization (WHO) recognized addictive gaming disorder as a disease in 2018. Jean-Philippe Caron, one of the CaLex Legal lawyers working on the suit, said the case isn't unlike a 2015 Quebec Superior Court ruling that found tobacco companies didn't warn their customers about the dangers of smoking. "[The game] has design patterns that make sure to always encourage player engagement. You have to understand that children's prefrontal cortices are still developing . . . so that could be part of the explanation for why this game is particularly harmful," he said. The class action will also discuss in-game purchases, namely cosmetic items - known as skins - and the game's Battle Pass system, which offers expanded rewards as players level up. Excessive spending on V-Bucks The children allegedly spent excessive amounts of money on V-Bucks - an in-game currency users buy with real money - which can be exchanged for skins or used to unlock the Battle Pass. One of the children reportedly spent over $6,000 on skins, while another spent $600 on V-Bucks - items Superior Court Judge Sylvain Lussier described as "without any tangible value." That may run afoul of Article 1406 of Quebec's civil code, where "serious disproportion between the prestations of the parties" - meaning, the obligation to provide something in turn - "creates a presumption of exploitation." "What we are saying is that basically young people spend their pocket money to buy something that basically does absolutely nothing, i.e. skins or a Battle Pass," said Caron. Caron said they're encouraging others whose lives have been negatively affected by Fortnite to get in touch, as they could possibly be eligible to join the class action. "Whether it's in their grades in school, an increase in aggression, the fact that they no longer have social contact - so any impact Fortnite had, personally, on the family, on social and educational or professional activities - we invite you to contact us." Developer plans to fight case In a statement to CBC, Natalie Muñoz, the communications director for Epic Games, said the company is prepared to argue its case. "We plan to fight this in court. This recent decision only allows the case to proceed," Muñoz wrote. "We believe the evidence will show that this case is meritless." She said that Fortnite has parental controls that allow parents to regulate how their child interacts with the game. The game can be set so that it needs approval to make a purchase, and a weekly report on play time can be sent to parents if they choose, she said. Muñoz said Epic has also recently put in place a daily spending limit for players 13 and under. [GN] F45 TRAINING: Bragar Eagel Files Securities Class Action Lawsuit ---------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized stockholder rights law firm, announces that a class action lawsuit has been filed against F45 Training Holdings, Inc. ("F45" or the "Company") (NYSE: FXLV) in the United States District Court Western District of Texas Austin Division on behalf of all persons and entities who purchased or otherwise acquired F45 securities pursuant to the F45's July 2021 IPO, both dates inclusive (the "Class Period"). Investors have until February 6, 2023 to apply to the Court to be appointed as lead plaintiff in the lawsuit. F45 is a fitness franchisor with a business model based on rapid growth through the franchising of low-overhead fitness facilities. The Company was founded in Sydney, Australia in 2013 and, by the time of the Company's July 16, 2021 initial public offering more fully described below, maintained 2,801 franchises in 68 countries. Plaintiff brings this class action on behalf of all persons and entities that purchased or otherwise acquired the common stock ("stock" or "shares") of F45 pursuant and/or traceable to the Company's false and/or misleading Form S-1 Registration Statement and accompanying Prospectus and Supplemental Prospectus (collectively, the "Registration Statement") issued in connection with the Company's July 16, 2021 initial public offering of 18.75 million shares of common stock, priced at $16 per share (the "July 2021 IPO" or the "Offering"), to pursue remedies under Sections 11 and 15 of the Securities Act of 1933 (the "Securities Act"). As set forth in the Prospectus issued in support of the July 2021 IPO, the Company asserted that the proceeds would be used, inter alia, to repay indebtedness, to complete the purchase of Flywheel indoor cycling studio, to pay bonuses to certain employees, to pay expenses related to the offering, and for working capital and general corporate purposes. In support of the July 2021 IPO F45's Registration Statement professed and represented its advantage over traditional owner-operated fitness facilities both because the franchise model "has enabled us to open new studios at an accelerated pace versus the owner-operator model" and because it generated quick revenue for the Company because "[f]or the majority of franchises that we sell, we receive an upfront payment from the franchisee." However, due to the material misstatements and omissions contained therein, Defendants' Registration Statement was false and misleading regarding the Company's revenue stream and its ability to maintain its rapid expansion business model. In its Prospectus, the Company noted that it intended to emphasize the growth of multi-unit franchisees over single-unit franchisees, stating that as of March 31, 2021,"[a]pproximately 49% of Total Franchises Sold are owned by single-unit franchisee owners, with the other 51% owned by multi-unit franchisees." The Company stated that "[a]s we pursue opportunities to develop multi-unit franchise systems with financial partners, we expect the percentage of multi-unit franchisees to increase over time." However, at the time, the Registration Statement did not disclose that F45 could not maintain new franchise growth because it was offering more favorable payment terms to multi-unit franchisees. The Registration Statement merely represented that "[t]he upfront establishment fee is payable by the franchisee upon signing a new franchise agreement . . . ." In truth, as of the July 2021 IPO and as the Company would later acknowledge, F45 provided for "modified" payment terms for "large multiunit deals." This would and did ultimately result in material increases to accounts receivable and lower cash flow for the Company. F45's approach to starting new franchises was not sustainable over the long term as the Company was not being, and would not be, repaid by multi-unit franchise owners quickly enough to maintain significant franchise growth. Indeed, in the first and second quarters of 2022, F45reported just 117 and 92 new franchise openings, respectively, compared to 96 studio openings in the first quarter of 2020, when the COVID-19 pandemic began. This lackluster pace of growth was accompanied by a massive and unsustainable increase in F45's accounts receivable and a similar, and equally unsustainable, decrease in its cash and cash equivalents. These practices were not sustainable at the time of the IPO. When the Company could no longer sustain this defective business model, its growth rate and revenue plummeted. Then, on July 26, 2022, just a year after the IPO, and just a little more than two months after reiterating its growth targets, F45 issued a press release titled "F45 Training Announces Strategic Update." The press release described "strategic updates to align the Company more closely with macroeconomic conditions and current business trends and prepare for the next phase of studio and membership growth." According to the press release, the Company's "strategic updates" informed the market: (1) of a significant reduction in its financial guidance, from a range of $255 to $275 million to a new range of $120 to $130 million; (2) of a dramatic cut in the number of new exercise studios that it would open in 2022- down approximately 60% (or 350 to 450 new studios, versus 1,000); (3) that a $250 million credit line "will not be available"; (4) that it was letting go of about 110 employees, equaling approximately 45% of its workforce; and (5) that CEO, Adam Gilchrist, had resigned his position as CEO, effective July 24, 2022. Importantly, more adverse news was disclosed in the July 26, 2022, "Strategic Updates." The Company disclosed that for the full-year net franchises sold would be between 350 and 450, a fraction of the prior guidance of 1,500, and that full-year net initial studio openings would be between 350 and 450, compared to the prior guidance of 1,000. As a consequence of its infirm business model and condition, existing at the time of the July 2021 IPO, F45 was also forced to substantially slash guidance for the full-year 2022 revenue to just between $120 million and $130 million, compared to the prior guidance of $255 million to $275 million, and full-year Adjusted EBITDA between $25 million and $30 million, compared to the prior guidance of $90 million to $100 million, signaling a dramatic decrease in its business and momentum. The July 26, 2022 adverse disclosures caused the trading price of F45 to plunge over 60%, from a close at $3.51 on July 26 to close at $1.35 on July 27, 2022 and representing more than a 78% decline from its offering price of $16 per share on July 16, 2021 - just slightly more than a year earlier. If you purchased or otherwise acquired F45 shares and suffered a loss, are a long-term stockholder, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. About Bragar Eagel & Squire Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] FTX TRADING: CEO Faces 7 Class Action Suits Since Bankruptcy ------------------------------------------------------------ cointelegraph.com reports that the number of lawsuits against former FTX CEO Sam Bankman-Fried has been racking up since the fall of his crypto empire, with the former "white knight" of crypto finding himself a defendant in seven class action lawsuits filed since FTX's bankruptcy. These lawsuits are separate from the numerous probes and investigations examining FTX and Sam Bankman-Fried, such as a reported market manipulation probe by federal prosecutors and the Federal Election Commission's likely investigation into Bankman-Frieds dark money donations to the Republican Party. Below is a summary of the class-action lawsuits brought against Sam Bankman-Fried since Nov. 11. Dec. 7: Podalsky et al. v. Bankman-Fried et al. In this class-action lawsuit brought by Gregg Podalsky and four other individuals, the former FTX customers accused Golden State Warriors, Bankman-Fried and numerous other celebrities and FTX executives of fraudulently inducing "unsophisticated investors" into purchasing unregistered securities in the form of yield-bearing accounts, resulting in customers losing billions of dollars. Other public figures also named in the lawsuit are Tom Brady, Kevin O'Leary, Stephen Curry, Trevor Lawrence and Shaquille O'Neal, with Podalsky demanding that the case have a jury trial. Dec. 5: Jessup v. Bankman-Fried et al. FTX customer Michael Elliott Jessup has brought a class-action lawsuit against Bankman-Fried, former Alameda CEO Caroline Ellison and other FTX executives, accusing them of fraud, unjust enrichment and conversion. Unjust enrichment in legal cases refers to situations where one person is enriched at the expense of another, in circumstances which the law sees as unjust, while conversion refers to situations where one person 'converts' another person's property for themselves. Jessup, who has also demanded the case have a jury, alleges that customers who held funds on FTX had rightful possession of their crypto assets and that the defendants transferred these assets to Alameda Research without the authority to do so - which constitutes conversion in the eyes of Jessup's lawyers. Dec. 2: Hawkins v Bankman-Fried et al. Filed in California, this lawsuit is a class action brought by Russell Hawkins - an FTX customer who held funds on the exchange - on behalf of all those similarly situated and alleges that customers were misled by unfair and deceptive practices. The defendants include Bankman Fried and other FTX executives, as well as accounting firms Armanino and Prager Metis, who had issued certified reports deeming FTX to be in good financial health, with the filing noting: "As set forth herein, the Individual Defendants made statements regarding YBAs [Yield-bearing accounts] and the FTX Entities that were untrue or misleading. They publicly represented that the FTX Entities and YBAs were a viable and safe way to invest in crypto, a statement designed to deceive consumers into investing with the FTX Entities." Nov. 23: Pierce v. Bankman-Fried et al. With the same defendants as the Hawkins case, FTX customer Stephen Pierce filed a class-action lawsuit in California accusing Bankman-Fried of being "one of the great frauds of history," and that he "and his inner circle treated those assets as a slush fund to fund their own proprietary investments and a variety of personal boondoggles." A jury has once again been demanded by the plaintiff (Pierce), who alleges that the Racketeering Influenced and Corrupt Organizations Act (RICO) has been violated. Racketeering is a type of organized crime in which an illegal coordinated scheme or operation is set up which enables the perpetrators to consistently collect a profit. Nov. 21: Kavuri v. Bankman-Fried et al. FTX customer Sunil Kavuri has filed a class-action lawsuit in Florida similar to Podalsky v Bankman-Fried, in that the defendants listed include celebrities or public figures that have endorsed or otherwise promoted FTX allegedly without disclosing their payment or stake in the company. It is also a case that the Securities and Exchange Commission may be keeping a close eye on, with Kavuri alleging that FTX was promoting unregistered securities which were fraudulently presented as securities in an effort to attract customers and generate interest. Nov. 20: Lam v. Bankman-Fried Hong Kong resident and FTX customer Elliot Lam is the plaintiff in another class-action lawsuit filed in California, who alleges that Bankman-Fried, Ellison and the Golden State Warriors have violated California's false advertising and unfair competition laws and have also committed fraudulent concealment and civil conspiracy. Lam claims that the defendants sold and marketed to the public who could not have known the "true nature of FTX and YBAs," and that had the public had the same information as the defendants, they would not have chosen to use FTX's products - thus constituting fraudulent concealment. Nov. 15: Garrison v. Bankman-Fried et al. This lawsuit once again includes the full suite of celebrity actors and public figures who are understood to have endorsed or been involved in marketing campaigns for FTX, the class-action lawsuit filed by Edwin Garrison in Florida alleges that FTX's YBAs were illegally offered securities. Garrison also accuses FTX of having engaged in deceptive and unfair business practices, and was engaged in a "fraudulent scheme" that intentionally took advantage of "unsophisticated investors." Once these complaints and the necessary documents were filed, they were given a docket number and immediately assigned to a judge. From there, each of the defendants is served with a summons and complaint, and the judge will set out a schedule outlining the next steps. [GN] GAP INC: Bids for Lead Plaintiff Appointment Due February 3, 2023 ------------------------------------------------------------------ Bernstein Liebhard LLP on Dec. 6 disclosed that a securities class action lawsuit has been filed on behalf of investors who purchased or acquired the securities of The Gap, Inc. ("Gap" or the "Company") (NYSE: GPS) between November 24, 2021 and July 11, 2022, inclusive (the "Class Period"). The lawsuit was filed in the United States District Court for the Eastern District of New York and alleges violations of the Securities Exchange Act of 1934. Gap operates as a global apparel retail company. The Company offers apparel, accessories, and personal care products for men, women, and children under the Old Navy, Gap, Banana Republic, and Athleta brands. In the second half of 2021 the Company introduced BODEQUALITY, a size-inclusivity campaign which introduced up to size 28 in all Old Navy stores. In an August 26, 2021 press release, defendant Sonia Syngal ("Syngal") touted the importance of BODEQUALITY as one of the Company's key drivers of long-term sustainable growth. Plaintiff alleges that Defendants made materially false and misleading statements throughout the Class Period. Specifically, Plaintiff alleges that Defendants failed to disclose that: (1) there were execution missteps in size and assortment at Old Navy related to BODEQUALITY which were adversely impacting Old Navy's margins and financial results; (2) contrary to the Company's statements, there were inventory risks relating to BODEQUALITY that were adversely affecting the Company's operations; and as a result (3) the Company's statements during the Class Period about the historical financial and operational metrics and purported market opportunities did not accurately reflect the actual business, operations, and financial results of the Company, and were materially false and misleading, and lacked a factual basis. On April 21, 2022, after market hours, the Company announced that Nancy Green, CEO of Old Navy, had stepped down. On this news, Gap's stock price fell $2.57 per share, or 17%, to close at $11.72 per share on April 22, 2022. Then, on May 20, 2022, during market hours, The Wall Street Journal published an article revealing that the Company had improperly managed its inventory of plus size clothing at its Old Navy stores, causing material declines in margins and business results. On this news, the Company's stock fell 7% to close at $10.93 per share on May 20, 2022. Further, in its form 10-Q filed with the SEC on May 27, 2022, the Company admitted that execution missteps in size and assortment of inventory at Old Navy adversely impacted the Company's financial results. On this news, Gap's stock price fell 4.9% to close at $11.03 per share on May 31, 2022. Finally, on July 11, 2022, after market hours, the Company announced that Syngal was stepping down from her position as President and CEO of the Company and resigned from the Board of Directors. On this news, Gap's stock price fell 5% to close at $8.32 per share on July 12, 2022. If you wish to serve as lead plaintiff, you must move the Court no later than February 3, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased or acquired Gap securities, and/or would like to discuss your legal rights and options please visit The Gap, Inc. Shareholder Class Action Lawsuit or contact Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. Contact Information: Peter Allocco Bernstein Liebhard LLP https://www.bernlieb.com (212) 951-2030 pallocco@bernlieb.com [GN] HONDA DEVELOPMENT: Fails to Pay Proper Wages, Scarbrough Alleges ---------------------------------------------------------------- MELISSA SCARBROUGH, individually and on behalf of all others similarly, Plaintiff v. HONDA DEVELOPMENT & MANUFACTURING OF AMERICA, LLC, Defendant, Case No. 2:22-cv-04277-MHW-CMV (S.D. Ohio, Dec. 02, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Scarbrough was employed by the Defendant as staff. HONDA DEVELOPMENT & MANUFACTURING OF AMERICA, LLC manufactures motor vehicles and parts. The Company provides product engineering and development, shipping and export, painting, assembly, and quality assurance services. [BN] The Plaintiff is represented by: J. Corey Asay, Esq. MORGAN & MORGAN, P.A. 333 W. Vine St., Ste. 1200 Lexington, KY 40507 Telephone: (859) 286-8368 Facsimile: (859) 286-8384 Email: casay@forthepeople.com - and - Matthew S. Parmet, Esq. PARMET PC 3 Riverway, Ste. 1910 Houston, TX 77056 Telephone: (713) 999-5228 Email: matt@parmet.law IRIS ENERGY: Bids for Lead Plaintiff Appointment Due January 14 --------------------------------------------------------------- Robbins LLP informs investors that a shareholder filed a class action on behalf of all persons and entities that purchased or otherwise acquired Iris Energy Limited (NASDAQ: IREN) shares pursuant to the Company's initial public offering ("IPO") or between November 17, 2021 and November 1, 2022. The complaint alleges violations under the Securities Act of 1933 and Securities Exchange Act of 1934. Iris touts itself as a leading owner and operator of institutional-grade, highly efficient, proprietary Bitcoin mining data centers powered by 100% renewable energy. What Now: Similarly situated shareholders may be eligible to participate in the class action against Iris Energy Limited. Shareholders who want to be appointed lead plaintiff for the class must file their papers by January 14, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. You do not have to participate in the case to be eligible for a recovery. For more information, click here. All representation is on a contingency fee basis. Shareholders pay no fees or expenses. What is this Case About: Iris Energy Limited (IREN) Issued a Materially False and Misleading Registration Statement in Support of its IPO According to the complaint, Iris conducted its IPO on November 17, 2021, issuing approximately 8.27 million shares at $28.00 per share. However, the Offering Documents in support of the IPO were misleading. Specifically, the Offering Documents failed to disclose that certain of Iris's Bitcoin miners, owned through wholly-owned special purpose vehicles, were unlikely to produce sufficient cash flow to service their respective debt financing obligations. Accordingly, Iris's use of equipment financing agreements to procure Bitcoin miners was not as sustainable as defendants had represented and was likely to have a material negative impact on the Company's business, operations, and financial condition. On November 2, 2022, Iris issued a press release disclosing, among other things, that "[c]ertain equipment (i.e., Bitcoin miners) owned by [Non-Recourse SPV 2 and Non-Recourse SPV 3] currently produce insufficient cash flow to service their respective debt financing obligations, and have a current market value well below the principal amount of the relevant loans" and that "[r]estructuring discussions with the lender remain ongoing." On this news, Iris's ordinary share price fell $0.51 per share, or 15.04%, to close at $2.88 per share on November 2, 2022-a nearly 90% decline from the IPO price. About Robbins LLP: A recognized leader in shareholder rights litigation, the attorneys and staff of Robbins LLP have been dedicated to helping shareholders recover losses, improve corporate governance structures, and hold company executives accountable for their wrongdoing since 2002. To be notified if a class action against Iris Energy Limited settles or to receive free alerts when corporate executives engage in wrongdoing, sign up for Stock Watch. [GN] JOHNSON CONTROLS: Fails to Pay Proper Wages, Wisniewski Alleges --------------------------------------------------------------- FRANK WISNIEWSKI; JOHN FILARDI; PETER CORNALE; PAUL ROGERS; DAVID LATKOWSKI; ROBERT GRANT; and ROBERT RUMPF, individually and on behalf of all others similarly situated, Plaintiffs v. JOHNSON CONTROLS, INC., Defendant, Case No. 1:22-cv-10287 (S.D.N.Y., Dec. 5, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiffs were employed by the Defendant as steamfitter. JOHNSON CONTROLS, INC. produces electronics and HVAC equipment. The Company offers HVAC equipment, building automation, security, fire detection, batteries, and other related products, as well as building control systems, energy management, and integrated facility management services. [BN] The Plaintiffs are represented by: Jason J. Rozger, Esq. MENKEN SIMPSON & ROZGER LLP 80 Pine Street, 33nd Floor New York, NY 10005 Telephone: (212) 509-1616 Cellular: (973) 432-1122 LASTPASS US: Faces Class Suit Over Unprotected Customers' Info -------------------------------------------------------------- Kelly Mehorter, writing for ClassAction.org, reports that LastPass US LP and affiliate GoTo Technologies USA face a proposed class action that claims the companies' inadequate cybersecurity practices resulted in a data breach in August 2022, compromising customers' financial and personal information. The 31-page case alleges the defendants have falsely advertised that LastPass's password management service utilizes "robust" data security procedures. Based on these promotions, the plaintiff, Debt Cleanse Group Legal Services, purchased an enterprise subscription to LastPass in 2018 so its employees could use the program to store passwords, the filing claims. Although the service purports to offer superior data protection, the defendants employed "deficient and unreasonable" cybersecurity practices, such that an unauthorized third party infiltrated LastPass and GoTo's shared network in August of this year, the complaint contends. Per the suit, the system contains sensitive customer data, including financial account information, names, addresses, contact information and account passwords, that has likely been copied, sold and used for criminal activity such as identity theft or fraud. According to the case, LastPass discovered the data breach in August and released public statements on August 25 and September 15, relaying that no customer information was under threat. However, in an "unreasonably" delayed notification published on November 30, LastPass admitted that "the criminals accessed certain elements" of customer information, the suit says. The notice also stated that consumers' passwords were still secure, which is a report based on LastPass's "incomplete and ongoing" investigation, the filing charges. "Each new notice revealed that the Data Breach was worse than before, while continuing to falsely allay reasonable concerns that Customer Information was taken or the Data Breach was serious," the case states. The case relays that the plaintiff would not have purchased LastPass's service had it known that the defendants would not properly safeguard their network. The lawsuit looks to cover anyone whose customer information was accessed in the LastPass and GoTo data breach discovered in August 2022. [GN] LAUNDRESS NEW YORK: Issues Safety Notice Amid Class Action ---------------------------------------------------------- Danya Issawi, writing for The Cut, reports on November 17, the Laundress New York, the all-natural detergent and home-goods brand with a cult-like following, posted an infographic to its Instagram with its logo and the phrase "Safety Notice." In the caption, the company warned its customers to stop using all the Laundress products "immediately," as the brand had "identified the potential presence of elevated levels of bacteria in some of our products that present a safety concern." The post went on to say the team was so far unaware of any adverse health impacts and would let consumers know which products were impacted and how to get reimbursed "as soon as possible." The company also sent an email blast. The U.S. Consumer Product Safety Commission has since issued a recall spanning over 8 million units of Laundress products made between January 2021 and September 2022 that may contain bacteria typically found in soil and water. The commission warns that those with "weakened immune systems, external medical devices, and underlying lung condition" who might become exposed "face a risk of serious infection that may require medical treatment." At least one class-action lawsuit has been filed against the detergent company, according to Insider. The named plaintiff in the case, Margaret Murphy, claimed her family became sick after using the Laundress's products. The brand, which sells a $50 Le Labo Santal detergent and touts an entire line of products for babies, has since marked all merchandise as out of stock on its site and created a section for its safety notice. Some customers, like Rachel Handler, a writer at Vulture, reached out to the company via email after being unable to reach someone at the Laundress's flagship store in Soho (which is flagged as "temporarily closed" on Google) for clarification, only to be met with an email as vague as the brand's statement. Handler, who noted she'd essentially been rationing one bottle of the brand's detergent for years, emailed the Laundress's team asking if anyone could provide more specifics about the bacteria and which products were affected. In response, she received an email stating that the company is "experiencing a high volume of inquiries" that may lead to a delayed response time and mentioning that customers with questions about their health are recommended to "please contact your doctor." According to the Business of Home, prior to public notice, the company sent a note to retailers that carry the Laundress cleaning products in which interim CFO Tohfe Beidas asked them to "immediately cease all sales and distribution" of the brand's products as a result of "concerns that have arisen." Beidas also asked vendors to "quarantine" products in stock. In a statement to the Cut via email, the company directed me to its website and social-media posts for more information. A representative also wrote that the Laundress is "working with the CPSC," the United States Consumer Product Safety Commission, "on this issue, and in the meantime decided it would be best to issue a stop-sale notice to our retailers and wholesalers and a safety notice to our consumers. At this time we do not have more information to provide, but will share more information as soon as we are able to do so." Confused customers flooded the Laundress's Instagram comments with questions and concerns after the initial safety notice. "Y'all. How far back? I have about 6 gallon sized bottles purchased last year," one comment read. "Please provide more detail, this is beyond vague. I use this product on my whole family including babies." Some customers began mobilizing in the comments section. Shelbey Wilson, a digital creator who said she has been using the Laundress products for years, said she had been "struggling with serious skin reactions for the past six months" in comments under the Laundress's post. "While I know I cannot say for certain if my detergents and home sprays are the root cause, I recently stopped using them because they were the last link in my dermatitis. Each time I would wash my clothes and put a fresh pair of sweats/sweater on, I would start breaking out in horrible red blotches and intense itching. This has lasted for well over six months," she wrote. Wilson, a mom who uses the No. 10 detergent and the Isle Signature detergent to wash her own clothes, said she also buys the No. 10 detergent and softener to wash her 20-month-old son's clothes. "Unfortunately, this all makes sense now. If anyone else can attest to a similar experience please let me know so I don't feel crazy." Dozens of fellow customers came forward with similar complaints of sudden and inexplicable rashes, and while it's unclear whether these were caused by the Laundress's products, some consumers seemed to find, at the very least, a sense of validation. One commenter complained of rashes they began getting in the spring, which they originally thought to be eczema though they found no relief in the creams doctors prescribed. They claim they only improved once they stopped using the Laundress's detergent. "I am so glad you posted this. Now I am confirmed it was the detergent," they wrote. "I thought it was all in my head but I am glad I trusted my gut." "I have had a severe face rash for months now," another wrote. "Of course I can't be 100 percent positive, but it's starting to make sense." A fellow Isle scent lover wrote they'd been using the detergent for about six months, saying both they and their husband had been complaining of "severe itchy skin -- especially in the more sensitive areas of our bodies." They went on to express how disappointed they were in their experience and had "bought a ton when they were on sale too." The team has since responded in the comments of their own post as well, where they wrote, "Thank you for your understanding, we hear and appreciate your concerns and questions. We are working hard on an update for our community soon, in the meantime please visit our Safety Notice for the latest information. This link can be found in our bio." [GN] MAJOR ENERGY: Denial of Stay Pending Arbitration in Glikin Affirmed ------------------------------------------------------------------- In the case, ANGELA GLIKIN, on behalf of herself and all others similarly situated, Plaintiff-Appellee v. MAJOR ENERGY ELECTRIC SERVICES LLC, Defendant-Appellant, Case No. 21-3097-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirms the district court's order denying Major's motion to stay the action pending arbitration. Glikin brought the putative class action alleging that Defendant-Appellant Major deceived its customers and overcharged them for electricity. Major now appeals the district court's order denying its motion to stay the action pending arbitration under the Federal Arbitration Act ("FAA"), 9 U.S.C. Section 3. The Second Circuit applies de novo review to a district court's denial of a motion to stay an action pending arbitration. Section 3 of the FAA requires a district court to stay proceedings when all of the claims in an action have been referred to arbitration and a stay requested. To determine whether a valid agreement to arbitrate exists, courts look to ordinary state-law principles. The parties and the district court agree that Maryland law applies. Major argues that the district court erred in concluding that Glikin did not receive sufficient and effective notice of a purported contractual modification, which included an arbitration provision and class action waiver. We disagree. Glikin's original contract stated that she would receive "written notification of the renewal terms at least 45 days prior to the renewal date" and "30 days advance written notice of any material change to the Agreement." The July 21, 2016 mailing, which Major claims modified Glikin's original contract, consisted of a letter stating that Glikin's contract would expire on Sept. 7, 2016, and informing her that she could (1) choose a new electricity rate online, (2) select a new plan by phone, or (3) "Do Nothing!" -- in which case her account would "automatically renew on a month to month variable rate plan." The mailing also included a four-page, fine-print document titled "Maryland Residential and Small Commercial Disclosure Statement and Terms of Service," which included an arbitration provision and class action waiver. The letter made no reference to those enclosed terms of service. The Second Circuit explains that under Maryland law, where a party voluntarily included a notice of changes provision in a customer agreement it authored and had unilateral authority to amend, the authoring party's failure to comply with the notice provision cannot establish a valid contractual modification, citing DIRECTV, Inc. v. Mattingly, 829 A.2d 626, 636-37 (Md. 2003). In DIRECTV, Maryland's highest court specifically rejected the argument advanced by Major that merely enclosing a copy of the text of the new agreement was sufficient to comply with the notice provision. Major argues that DIRECTV is distinguishable because the contract in DIRECTV required "written notice describing the change," whereas Glikin's contract required simply "written notice of any material chang." The Second Circuit need not address whether Major was required to provide a detailed description of the changes in the contract because Major failed to provide any notice of a material change in the first place. Relying on the dictionary definitions of "notice" and "describe," the DIRECTV court agreed to let the customer "know when a change occurred and what that changed entailed." Major's letter neither informed Glikin that the attached contract was modified nor warned her to review the contract for changes. Regardless of any potential need for a detailed description, Major failed to let Glikin "know when a changed occurred." Because the Maryland Court of Appeals has explained that merely attaching a contract is insufficient written notice, accepting Major's position "would be the practical equivalent of writing the notice of any material change provision out of the customer agreement." Since the July 21, 2016 mailing did not effect a valid contractual modification so as to subject Glikin to the mandatory arbitration clause or class waiver provision, the Second Circuit concludes that the district court did not err in denying Major's motion to stay the action pending arbitration. It has considered Major's remaining arguments and finds them to be without merit. Accordingly, it affirms the order of the district court. A full-text copy of the Court's Dec. 2, 2022 Summary Order is available at https://tinyurl.com/28k4ahf7 from Leagle.com. D. GREGORY BLANKINSHIP -- gblankinship@fbfglaw.com -- Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, White Plains, New York ( J. Burkett McInturff -- jbm@wittelslaw.com -- Wittels McInturff Palikovic, Armonk, New York, on the brief), for the Plaintiff-Appellee. Kevin P. Allen -- KPAllen@duanemorris.com -- and Thomas E. Sanchez -- TESanchez@duanemorris.com -- on the brief, Duane Morris LLP, Pittsburgh, Pennsylvania, for the Defendant-Appellant. MALTA: Faces Class Action Lawsuit Over Overcharged Utility Bills ---------------------------------------------------------------- Jurgen Balzan, writing for Newsbook, reports that the Nationalist Party will go ahead with its class action lawsuit against government on overcharged utility bills after the Opposition's motion was defeated in parliament on Dec. 5. The Nationalist Party proposed a new utility billing system that ensures consumers benefit fully from unutilised cheap units should be backdated to January 2014. The PN said that it had been left with no choice but to seek legal action, after a parliament motion to force a refund for consumers was shot down by the government. In November, Opposition MPs presented a parliamentary motion seeking to amend the legal notice introduced the previous month so that its effects are backdated to January 2014 rather than January 2022. However, after seeing its motion defeated in parliament the PN said on Dec. 6 that in light of government's decision to ostensibly vote against the Opposition's proposal it will be proceeding with the class action case in court, which was announced a few weeks ago. In a press conference on Dec. 6, Nationalist MP Mark Anthony Sammut said that people wishing to join the lawsuit had until Friday, Dec. 9, to register their interest. In October, energy minister Miriam Dalli announced changes to the 2009 legal notice regulating how utility bills are calculated. The legal notice introduced last month would save household consumers up to €8 per year. However, government brushed off suggestions that consumers should be compensated for being overcharged in the previous eight years. The Auditor General found overbilling by ARMS -- the company that bills consumers for water and electricity -- was costing consumers EUR6.5 million in "extra charges" every year since 2014. Earlier this year, a court ruled that ARMS, the company that bills consumers for water and electricity, breached the law when it issued bills for two men on a pro-rata basis rather than on an annual cumulative consumption basis. The court ordered the utility company to revise their account from 2017 and refund the men the amount they have overpaid since. However, government has appealed the decision. Since 2010, ARMS has been issuing bi-monthly bills using a staggered calculation system. The first 2,000 units of electricity are charged at one rate and further consumption at higher rates. However, ARMS splits up this allocation pro rata according to the number of bills a consumer receives in the same year. This means that if a residence is billed every two months, the first 2,000 units are split between six bills, amounting to an allocation of 333 units per bill at 10.47c per unit. [GN] MARINOSCI LAW: Parties Seeks to Modify Briefing Deadlines --------------------------------------------------------- In the class action lawsuit captioned as ROY M. BURKE, on behalf of himself and others similarly situated, v. MARINOSCI LAW GROUP, P.C., P.A., Case No. 9:22-cv-80725-AMC (S.D. Fla.), the Parties ask the Court to enter an order briefly extending the deadlines for the Defendant to file its opposing memorandum to Plaintiff's Motion for Class Certification and for Plaintiff to file his reply memorandum in compliance with Local Rule 7.1(c)(1). The Plaintiff timely filed his Motion for Class Certification and Appointment of Class Counsel on December 2, 2022. Pursuant to Local Rule 7.1(c)(1) Defendant's filing deadline for its opposing memorandum is December 16, 2022 and Plaintiff's filing deadline for his reply memorandum is December 23, 2022. Mr. Kohlmyer, Counsel for Defendant is largely unavailable over the next week and a half due to prior commitments in other cases and because of deadlines for exams and papers in courses he is taking in pursuit of an advanced degree. Mr. Davidson, Counsel for Plaintiff will be out of the office and is unavailable the week of December 26, 2022 due to a pre-planned vacation. Accordingly, the Parties jointly request an extension of the filing deadline for Defendant's opposing memorandum to December 23, 2022 and corresponding extension of the filing deadline for Plaintiff's reply memorandum to January 6, 2023. Marinosci Law offers legal services. A copy of the Parties' motion dated Dec. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3HkXIaW at no extra charge.[CC] The Plaintiff is represented by: James L. Davidson, Esq. GREENWALD DAVIDSON RADBIL PLLC 5550 Glades Road, Suite 500 Boca Raton, FL 33431 Telephone: 561-826-5477 E-mail: jdavidson@gdrlawfirm.com The Defendant is represented by: Ernest H. Kohlmyer, III, Esq. SHEPARD, SMITH, KOHLMYER & HAND, P.A. 2300 Maitland Center Parkway, Suite 100 Maitland, FL 32751 Telephone (407) 622-1772 E-mail: skohlmyer@shepardfirm.com MASTERCARD INC: GBP600,000 Ads Campaign Class Action Suit Began --------------------------------------------------------------- Neil Rose at legalfutures.co.uk reports that a GBP600,000 print and digital advertising campaign to draw public attention to the landmark GBP17bn Mastercard class action began. It follows the Court of Appeal's dismissal of Mastercard's final challenge to certification of the action in a case - the first collective proceedings started under the 2015 Consumer Rights Act - that has also been to the Supreme Court. The campaign informs consumers of their rights under the claim, with 46 million people in line for a pay-out of up to GBP300 each. The claim is a follow-on action after Mastercard was found to have infringed EU law by imposing charges (known as 'interchange' fees) on the use of Mastercard debit and credit cards. It is claimed that this increased costs for retailers and consumers. Eligibility extends to any individual who purchased goods and/or services from businesses selling in the UK that accepted Mastercard cards between 22 May 1992 and 21 June 2008, so long as they were resident in the UK for a continuous period of at least three months, and were aged 16 years or over. UK consumers - or the person whose estate they represent - who were living in the UK on 6 September 2016 and satisfy the class definition are included in the class. People who were not living here but meet the criteria have to opt in. The personal/authorised representatives of the estates of people who meet the criteria and were alive on 6 September 2016, but subsequently died, are also included in the class. The class representative, solicitor Walter Merricks, has funding for GBP45m of his own costs and disbursements, and a further GBP15m for Mastercard's in the event it wins. His costs budget in August 2021, at the time the Competition Appeal Tribunal approved the collective proceedings order, was GBP32.5m. The tribunal has at times since been critical of the costs run up by both parties. The terms of the backing from third-party funder Innsworth Capital means it could exit should it look like a return of at least GBP179m on its investment was unlikely. Mr Merricks, a one-time Law Society official, said: "People are waking up to consumer rip-offs by big international companies like Mastercard. In this case all UK adult shoppers lost out by paying higher prices than we should have done because of an 'invisible tax' that Mastercard was responsible for." He observed that "Mastercard have been trying slow up the case ever since I started it six years ago. Its attempts to stop the case from proceeding have all failed. It'll still take a while yet, but today is a key milestone." Advertising for large group actions has been pioneered by specialist firm Pogust Goodhead, which in January 2021 became what was thought to be the first law firm in the UK to advertise on TV for claimants to join specific cases - in that instance, a claim against British Airways over its 2018 customer data breach. The High Court subsequently ruled that the GBP1m the firm was spending on the advertising could not recover it from the airline in the event of winning. Pogust Goodhead's adverts encouraging people to join the diesel emissions litigation have been prominent during ITV's World Cup coverage in recent weeks.[GN] MATCH GROUP: Sued Over Tinder's Photo Verification Features ----------------------------------------------------------- Kelly Mehorter, writing for ClassAction.org, reports that a proposed class action claims Tinder's photo verification features illegally collect and store Illinois consumers' biometric facial data without consent. The 19-page case alleges Match Group, the owner of popular online dating services such as Tinder, Match.com, Meetic, OKCupid, Hinge and PlentyOfFish, among others, has violated the Illinois Biometric Information Privacy Act (BIPA) by failing to obtain express written permission before retaining Tinder users' facial scans in the state. The complaint relays that the dating app introduced in 2020 a two-step "photo verification" process for which users take a video selfie to confirm that their face matches their profile photos. Tinder's "liveness check" then scans the user's face to determine if a "real, live person took the video, and that it was not digitally altered or manipulated," the suit explains. Then, the case continues, Tinder's "3D face authentication" tool uses facial recognition technology to extract a user's facial geometry. Profiles that pass both steps receive a "photo verified" status along with a blue checkmark, the filing relays. These features allow Tinder to capture and stores consumers' biometric facial scans, which the app does without informing consumers or obtaining their written permission, the lawsuit alleges. The BIPA stipulates that companies like Tinder, in order to lawfully obtain and retain consumers' biometric data, must disclose the "specific purpose and length of term for which such biometric identifiers or information are being collected, stored, and used," the case explains. The complaint relays that, under the BIPA, private entities must also publish written retention schedules for permanently destroying biometric data. "[The] BIPA provides individuals with a private right of action, protecting their right to privacy regarding their biometrics as well as protecting their rights to know the precise nature for which their biometrics are used and how they are being stored and ultimately destroyed," the case expands. However, Tinder neither informs users of the purpose for its biometric data retention or reveals how long it stores the sensitive, unchangeable data, the suit alleges. The lawsuit looks to cover all Illinois residents who directly or indirectly used Tinder's biometric authentication products and subsequently had his or her biometric facial scan captured, collected, stored, or otherwise obtained by the dating app during the applicable statute of limitations period. [GN] MDL 3010: Help Desk to Remove Redacted Doc in Google Antitrust Suit ------------------------------------------------------------------- In the case, IN RE: GOOGLE DIGITAL ADVERTISING ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO: SPX Total Body Fitness LLC, d/b/a The Studio Empower, on behalf of itself and all others similarly situated, Plaintiff, and SKINNYSCHOOL LLC d/b/a MARIA MARQUES FITNESS and MINT ROSE DAY SPA LLC, on behalf of themselves and all others similarly situated, Plaintiffs v. GOOGLE LLC, Defendant, Case Nos. 21-md-3010 (PKC), 1:21-cv-06870-PKC, 1:21-cv-07045-PKC (S.D.N.Y.), Judge P. Kevin Castel of the U.S. District Court for the Southern District of New York directs the Southern District of New York ECF Help Desk to remove a redacted document filed in error and currently under temporary seal. Plaintiffs SPX Total Body Fitness LLC, d/b/a The Studio Empower, Mint Rose Day Spa LLC and SkinnySchool LLC., d/b/a Maria Marques Fitness requested that the Court enters an Order directing the Southern District of New York ECF Help Desk remove a redacted document filed in error and currently under temporary seal. The Plaintiffs filed the Consolidated Amended Class Action Complaint on Dec. 2, 2022, pursuant to the Court's Order of Nov. 18, 2022. Because the complaint contained quotes from documents produced in discovery and designated confidential or higher by Google pursuant to the governing protective order, the Plaintiffs filed a motion to seal portions of the complaint and then filed redacted and under seal versions of the complaint. After filing, still on Dec. 2, 2022, the Plaintiffs received correspondence from the counsel for Meta Platforms, Inc. f/k/a Facebook, Inc., that certain names of Meta employees should also have been redacted. Specifically, they reference two Meta employees in paragraph 215 of the Consolidated Amended Class Action Complaint that the Court previously ordered remain under seal in prior complaints. As a result, the undersigned counsel immediately contacted the Help Desk and the ECF Error email account for the Southern District of New York pursuant to sections 13.26 and 21.7 of the SDNY Electronic Case Filing Rules and Instructions to request that ECF No. 404 be removed as incorrectly filed, or sealed pending a Court order permitting removal. That email was sent the evening of Dec. 2, 2022; the ECF Help Desk confirmed that the entry had been placed under emergency seal immediately after opening on Dec. 5, 2022. In addition, the Plaintiffs immediately filed a corrected redacted complaint on the public docket that redacts the information produced and designated confidential by Google LLC pursuant to the operative protective order as well as the redaction of the two names requested by Meta, such that an appropriately redacted complaint is currently present on the public docket. The Plaintiffs believe that the incorrectly redacted version of their Consolidated Amended Class Action Complaint should thus be removed from the docket or remain under permanent seal given the Court's prior order. As a result, they respectfully request that the Court order such relief. Judge Castel so ordered. Doc 404 will remain sealed. The new redacted Consolidated Amended Complaint will be filed within seven days. A full-text copy of the Court's Dec. 6, 2022 Order is available at https://tinyurl.com/82e3thsp from Leagle.com. Kate Baxter-Kauf -- KMBAXTER-KAUF@LOCKLAW.COM -- LOCKRIDGE GRINDAL NAUEN, P.L.L.P, Minneapolis, MN. Fred T. Isquith, Sr., Robert S. Schachter -- rschachter@zsz.com -- Jessica Hermes -- jhermes@zsz.com -- ZWERLING, SCHACHTER, & ZWERLING, LLP, New York, NY. Fred T. Isquith, Jr., ISQUITH LAW, New York, NY. Solomon B. Cera -- scera@cerallp.com -- (admitted pro hac), Pamela A. Markert -- pmarkert@cerallp.com -- (admitted pro hac), CERA LLP, San Francisco, CA. Kate Baxter-Kauf, (admitted pro hac), Heidi M. Silton -- HMSILTON@LOCKLAW.COM -- (admitted pro hac), LOCKRIDGE GRINDAL NAUEN, P.L.L.P, Minneapolis, MN. Richard Vita -- rjv@vitalaw.com -- VITA LAW OFFICES, P.C., Boston, MA, Attorneys for the Plaintiffs and the Class. MEDICAL CITY: Court Terminates Bid for Leave & Class Cert. Bid -------------------------------------------------------------- In the class action lawsuit captioned as WENHUAI LANG, ET AL., V. MEDICAL CITY CHILDREN'S HOSPITAL, Case No. cv-02320-X-BN (N.D. Tex.), the Hon. Judge David L. Horan entered an order terminating the motion for leave as unnecessary. The Clerk shall also terminate the "motion to certify class" and correct the docket to reflect that Dkt. No. 9 is a summons. The Plaintiffs, who appear to be Massachusetts citizens, filed a pro se complaint against the Defendant Medical City Children's Hospital concerning the death of their daughter at the hospital on October 21, 2020. United States District Judge Brantley Starr referred their complaint to the undersigned United States Magistrate Judge for pretrial management under 28 U.S.C. section 636(b) and a standing order of reference. And, because Plaintiffs paid the $402 filing fee, the Court entered an order on October 20, 2022 advising them of their obligations regarding service of the complaint. The Plaintiffs have now filed a motion for leave to amend their complaint, and a "motion to certify class." Medical City offers specialties including pediatric emergency care, congenital heart, pediatric cancer, transplant, craniofacial surgery, and pediatric orthopedic care. A copy of the Court's order dated Dec. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3YabdQY at no extra charge.[CC] META PLATFORMS: Bid to Dismiss Klein's Advertiser Class Suit Denied ------------------------------------------------------------------- In the case, MAXIMILIAN KLEIN, et al., Plaintiffs v. META PLATFORMS, INC., Defendant, Case No. 3:20-cv-08570-JD (N.D. Cal.), Judge James Donato of the U.S. District Court for the Northern District of California denies the Defendant's motion to dismiss the first amended consolidated advertiser class action. The case features two groups of plaintiffs who allege antitrust injuries caused by Meta, which was rebranded from Facebook, Inc. The allegations in the complaints are directed at the Facebook social networking service. One plaintiff group consists of Facebook users, who call themselves "consumers." They allege that Facebook illegally acquired and maintained a stranglehold on the Social Network and Social Media Markets. The consumer complaint is not an issue for present purposes. The focus in the present is on the other plaintiff group, namely individuals and entities who bought advertising on Facebook. They allege that they paid artificially inflated ad prices as a result of Facebook's illegal monopolization of "the market for social advertising." The first amended consolidated advertiser class action (FAC) complaint alleges three claims: monopolization and attempted monopolization in violation of Section 2 of the Sherman Act, 15 U.S.C. Section 2, and unlawful restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. Section 1. A prior district judge who presided over this litigation granted and denied in part Facebook's motion to dismiss the advertiser and consumer complaints under the Federal Rule of Civil Procedure 12(b)(6). Each plaintiff group was granted leave to amend. Only the advertiser group elected to file an amended complaint, which is the FAC. Facebook asks to dismiss the FAC under Rule 12(b)(6). The parties have resolved most of Facebook's objections to the timeliness of the Section 2 claims. Facebook read the FAC to continue to challenge: (1) the acquisitions of Instagram and WhatsApp in 2012 and 2014, respectively; (2) the use of Onavo starting in 2011; and (3) changes to Facebook's Platform policies in 2015, along with data sharing agreements that followed those policy changes. It suggested that conduct preceding December 2016 would be untimely under the applicable four-year statute of limitations, 15 U.S.C. Section 15b, given that the advertisers' original complaint was filed on Dec. 18, 2020. In response, the advertisers stated that they will not seek damages for, or otherwise base their Section 2 claims on, any pre-limitations period conduct. Facebook has no substantive concerns about this representation, and the advertisers will be held to it. The sole remaining timeliness question relates to the filing of the amended complaint. Facebook says that the FAC, which was filed on Feb. 28, 2022, presents new allegations that "do not relate back to the conduct, transaction, or occurrence set out" in the initial complaint. Consequently, Facebook suggests that Feb. 28, 2018, forward is the relevant time period, and that conduct preceding this date should be disregarded and the FAC trimmed or dismissed. Judge Donato says the point is not well taken. The amended complaint responded to the shortfalls identified in the order of dismissal. If anything, the new allegations simply add detail to the prior ones; they are not radical changes or entirely new topics. The new allegations arise out of the same conduct stated in the original complaint, and Facebook has not demonstrated that a relation back will unfairly prejudice it in any way. Consequently, they relate back to the date of the original complaint for limitations purposes. Facebook also challenges the Section 2 claims as failing to plausibly allege any cognizable anticompetitive effect from the challenged conduct, let alone one that caused them antitrust injury. These are elements of a Section 2 claim. This too is unavailing, Judge Donato holds. He says the FAC describes a "monopoly broth" of anticompetitive conduct, which the prior district judge sustained as a plausible approach. The ingredients of the broth are said to be: (1) the targeting of competitors for whitelist and data sharing agreements "on pain of denial of access to Facebook's Platform and APIs"; (2) entering into unlawful data and market division agreements with Netflix, eBay, and Foursquare; (3) using data that was deceptively obtained through the Onavo app to surveil and target competition; (4) integrating artificial intelligence and machine learning models from Facebook, Instagram, and WhatsApp; and (5) entering into an agreement with Google to reinforce Facebook's position in the social advertising market. According to Judge Donato, this is enough to go forward. The advertisers have plausibly alleged "predatory and exclusionary conduct" that caused the social advertising market to be less competitive. This is said to have "resulted in fewer Social Advertising choices for advertisers and left only Facebook's monopoly rents as available prices in the" market. Facebook's contentions to the contrary raise factual disputes that are not amenable to resolution in a motion to dismiss. As a closing point, Facebook says that Plaintiffs Affilious, Inc., Jessyca Frederick, and 406 Property Services, PLLC, lack Article III standing to bring the Section 1 claim alleged in Count III. The claim is based on an agreement Facebook entered with Google, codenamed "Jedi Blue," in September 2018. By the advertisers' own class definition, Jedi Blue could not have injured the pre-2018 named plaintiffs, "who purchased advertising from Facebook between Dec. 1, 2016, and April 3, 2018, but not after April 3, 2018." Judge Donato declines to resolve the question at this stage of the case. Facebook may ask to revisit it if a fully developed record so warrants. The same goes for Plaintiff Mark Young. A full-text copy of the Court's Dec. 6, 2022 Order is available at https://tinyurl.com/mpwzasne from Leagle.com. MONSANTO CO: Long Beach to Receive $7.5 Million in Settlement ------------------------------------------------------------- Jason Ruiz, writing for Long Beach Post News, reports that the city of Long Beach will receive $7.5 million after a California judge finalized a $537.5 million settlement in a class action lawsuit that cities, counties and state governments across the country had filed against Bayer AG's Monsanto Company, the city said on Dec. 6. The suit accused the former agrochemical giant of polluting waterways with its products. In March, when officials announced a preliminary agreement, the city said that it expected to receive up to $7.5 million once the settlement was approved. Long Beach originally filed a lawsuit against Monsanto in 2016, but that suit was dismissed by a U.S. District judge later that year. The city later Long Beach joined other agencies like Oakland, San Francisco, San Diego and Los Angeles County in the class action lawsuit, which argued that polychlorinated biphenyls (PCBs) made by Monsanto were being introduced into local ecosystems, which can affect the immune, reproductive, nervous and endocrine systems of humans and are known to cause cancer. PCBs were used in paint, ink, hydraulic fluids, plastics and industrial equipment. They were outlawed by Congress in 1979. "This settlement affirms the decades-long damage the Monsanto Company has caused to our environment and our communities," Mayor Robert Garcia said in a statement. "This is an important step in holding them accountable for their actions." In total, over 2,500 agencies across the country were expected to get settlements from Bayer AG Monsanto Company and its subsidiaries. Long Beach officials said that the city is expected to receive the largest allocation of any party to the class action. Under the settlement, three funds were created to address the main harms created by PCBs: a Monitoring Fund ($42.9 million), a Total Maximum Daily Load Fund ($250 million) and a Sediments Site Fund ($137.5 million). However, because Long Beach allocated additional resources to investigate water quality, it could receive additional funds from a fourth Special Needs Fund ($107 million), the city said. The bodies of water that were found to have been contaminated by PCBs were the Port of Long Beach, Colorado Lagoon and the Dominguez Watershed. Funds received by the city from the class action will be allocated by the City Council, the city said in March. The settlement doesn't require agencies to spend money on specific projects or remediation. [GN] MONTCALM COUNTY, MI: Board Hears Update on Foreclosure Lawsuit -------------------------------------------------------------- Elisabeth Waldon, writing for Daily News, reports that the Montcalm County Board of Commissioners went into closed session for nearly 45 minutes on Dec. 5 to hear an update about a class action lawsuit regarding alleged foreclosure profits throughout the state of Michigan. The federal class action lawsuit was filed in U.S. District Court of the Western District of Michigan this past March against 44 counties, including Montcalm County and its Treasurer JoAnne Vukin, and Ionia County and its Treasurer Judith Clark (the Daily News first wrote about some of the local lawsuits in July 2019). The lawsuit alleges that multiple counties illegally profited from residents' inability to pay property taxes by foreclosing on homes for outstanding taxes and then auctioning off the properties. The class action portion of the lawsuit came after the Michigan Supreme Court ruled in July 2020 (Rafaeli vs Oakland County) that counties may sell foreclosed properties but they can't profit -- they may only recoup money for unpaid taxes, interest, costs and fees. Montcalm County commissioners went into closed session at a special meeting on Dec. 5 for nearly 45 minutes with Vukin, as well as Ted Seitz, an attorney with the Dykema Gossett law firm. When commissioners returned to open session, they voted 9-0 to refer a resolution to the county's law firm Mika Meyers for review, "and hopefully to forward to the full board agenda in two weeks," added Chairman Patrick Q. Carr of Cato Township. Montcalm County is being represented in the lawsuit by its insurance company, the Michigan Municipal Risk Management Authority (MMRMA). Near the end of the Dec. 5 regular Board of Commissioners committee meeting, which followed the special meeting, Commissioner Jeremy Miller of Greenville questioned how much fund balance was in Vukin's delinquent tax revolving fund (DTRF) as he wondered how much was possibly available. Controller-Administrator Brenda Taeter said there was nearly $8.5 million in the DTRF balance as of the most recent audit, but she noted that some of that money is used for settlements. "My guess is if we didn't have this lawsuit looming where there's a potential to pay back some of that, we'd be at the point where we could consider a transfer again, but now with that on the horizon we probably ought to wait for the dust to settle on that," Carr said. Ionia County appears to have settled its portion of the foreclosure lawsuit, according to "stipulations and orders disbursing remaining proceeds" filed in court. The orders, signed by Ionia County Circuit Court Judge Suzanne Kreeger, ordered the Ionia County Treasurer's Office to pay $50,393 to a claimant for a foreclosed Lake Odessa property, $29,788 to a claimant for a property (location unknown) and $16,828 to a claimant for a foreclosed Belding property. Clark did not return a message from the Daily News on Dec. 6 seeking comment/clarification for this story. [GN] MYLAN NV: Court Overrules Objections to Aug. 23 Order in KPH Suit ----------------------------------------------------------------- In the case, KPH HEALTHCARE SERVICES, INC., a/k/a KINNEY DRUGS INC., FWK HOLDINGS, LLC, and CESAR CASTILLO, LLC, individually and on behalf of all those similarly situated, Plaintiffs v. MYLAN N.V., et al., Defendants, Case No. 20-2065-DDC-TJJ (D. Kan.), Judge Daniel D. Crabtree of the U.S. District Court for the District of Kansas denies Mylan's Objections to and Motion to Review Judge Teresa J. James' Aug. 23, 2022 Order. On Aug. 3, 2022, Magistrate Judge James issued a Memorandum and Order that, among other things, granted a portion of the Motion to Compel filed by the Plaintiffs against the Mylan Defendants ("Mylan"). Specifically, Judge James' Order compelled Mylan to produce about 115 documents created before July 2013, and shared between Mylan and Pfizer. The documents appear on Mylan's privilege log in a multi-district litigation proceeding -- In re EpiPen (Epinephrine Injection USP) Marketing, Sales Practices & Antitrust Litigation, No. 17-MD-2785-DDC-TJJ (D. Kan.). The lawsuit alleges Sherman Antitrust Act claims against entities who manufacture and sell EpiPens. EpiPens are disposable, prefilled, FDA-approved epinephrine auto injectors that deliver epinephrine to treat severe allergic reactions known as anaphylaxis. The Plaintiffs are purchasers (or assignees of a purchaser) of EpiPens. Mylan markets, sells, and distributes EpiPens in the United States. Pfizer manufactures EpiPens, holds EpiPen patents, and supplies EpiPens to Mylan. The lawsuit alleges that Mylan and Pfizer, through their manufacture and sale of the EpiPen, engaged in an "anticompetitive and unlawful conspiracy" and entered "agreements in restraint of trade to substantially delay the onset of generic competition for the EpiPen. Specifically, they allege, on April 26, 2012, the Defendants entered into a series of unlawful and anticompetitive agreements with generic drug manufacturer, Teva and those agreements agreed to delay entry of Teva's AB-rated generic EpiPen until June 22, 2015 (subject to FDA approval) and settle patent litigation related to Teva's ANDA [Abbreviated New Drug Application] to manufacture and market an AB-rated generic EpiPen. In February 2020, Plaintiff KPH filed the lawsuit on behalf of itself and a class of direct purchasers of the EpiPen. The case currently is in the discovery phase. As part of discovery, Mylan produced to the Plaintiffs documents that Mylan and Pfizer had produced in the In re EpiPen MDL. The documents that Mylan produced included its privilege log from the MDL. The Plaintiffs challenged certain entries on Mylan's MDL privilege log, arguing that Mylan couldn't protect the documents from disclosure by asserting the attorney-client privilege because Mylan had shared them with a third party -- Pfizer. After the parties failed to resolve their discovery dispute by meet and confer efforts, the Plaintiffs filed a Motion to Compel Defendants' Responses to Plaintiffs' First Request for Production of Documents. Judge James ordered Mylan to produce the documents after concluding that: (1) Mylan had waived the attorney-client privilege by sharing the documents with Pfizer; and (2) Mylan hadn't shown that the common interest doctrine protected the documents from disclosure. Mylan has filed "Objections to and a Motion to Review Magistrate Judge's Order of August 23, 2022." Its filing asks the Court to review just the portion of Judge James's Order that compels Mylan to produce the documents shared between Mylan and Pfizer. Also, Pfizer has filed a "Notice of Joinder in Mylan's Objections to and a Motion to Review Magistrate Judge's Order of August 23, 2022." Although Pfizer no longer is a party to the case, it asserts that it qualifies as an interested party to this dispute because it had a reasonable expectation that the attorney-client privilege protected the documents shared between Pfizer and Mylan. As a consequence, Pfizer contends, the documents aren't subject to disclosure. The Plaintiffs have filed an Opposition to Mylan's Objections and a Response to Pfizer's Notice of Joinder. Mylan has submitted a Reply. And Pfizer has filed a "Response to Plaintiffs' Opposition." Mylan makes two principal arguments supporting its Objections to Judge James's Memorandum and Order. First, Mylan argues that Judge James' decision was contrary to law because she applied the wrong legal standard governing the common interest doctrine. Second, Mylan contends, Judge James' decision was clearly erroneous because she concluded that Mylan and Pfizer didn't share a community of interests sufficient to avoid waiving the attorney-client privilege. Judge Crabtree has reviewed the parties' submissions and considered their arguments directed at Judge James' Aug. 23, 2022 Memorandum and Order. He doesn't find either argument persuasive. First, he says none of Mylan's arguments establish that Judge James' decision to apply the "identical" legal interest standard for the common interest doctrine was contrary to law. After applying a de novo review to this question of law, Judge Crabtree affirms this portion of Judge James' reasoning. Judge James also finds that Judge James did not err by holding that Mylan failed to show that it shared an identical legal interest with Pfizer sufficient to invoke the common interest doctrine and shield the disputed documents from disclosure. The "undisputed facts" led Judge James "to conclude that while Mylan and Pfizer had a shared desire to prevail in any potential litigation regarding the patents before July 2013, they did not have an identical legal interest until the transfer was effectuated." As explained, Judge James concludes that Judge James' decision is neither clearly erroneous nor contrary to law. He thus denies Mylan's Objections to and Motion to Review Magistrate Judge's Order of August 23, 2022 and overrules Mylan's objections to Judge James's August 23, 2022 Memorandum and Order. A full-text copy of the Court's Dec. 6, 2022 Memorandum & Order is available at https://tinyurl.com/mpscrzxx from Leagle.com. NEOGENOMICS INC: Bid for Lead Plaintiff Appointment Due Feb. 6 -------------------------------------------------------------- Shareholder rights law firm Johnson Fistel, LLP on Dec. 6 disclosed that a class action lawsuit has commenced on behalf of investors of NeoGenomics Inc. (NASDAQ: NEO). The class action is on behalf of shareholders who purchased NeoGenomics Inc. securities between February 27, 2020 and April 26, 2022, both dates inclusive (the "Class Period"). Investors are hereby notified that they have until February 6, 2023, 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/neogenomics-class-action-lawsuit There is no cost or obligation to you. According to the lawsuit, during the class period, Defendants made false and misleading statements or failed to disclose the following: Defendants represented to investors that it had a "comprehensive menu" of cancer tests with "every kind of testing modality that you can use for cancer, including some of the fast-growing new ones, like next-generation sequencing," which positioned the Company as a "one-stop-shop" for pathologists and gave NeoGenomics "a competitive advantage" as a "go-to reference lab with a comprehensive menu for just about any kind of tests that you want to have done in cancer." Defendants represented that NeoGenomics could "leverage" the supposedly "fixed cost" structure of its business to improve profitability as revenue increased and touted the Company's "robust Compliance Program . . . to ensure compliance with the myriad of . . . laws, regulations and governmental guidance applicable to our business." A lead plaintiff will act on behalf of all other class members in directing the NeoGenomics 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 NeoGenomics 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] NEWAGE INC: Rosen Law Firm Files Securities Class Action Lawsuit ---------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, announces it has filed a class action lawsuit on behalf of purchasers of the securities of NewAge, Inc. (NASDAQ: NBEV) (OTC: NBEVQ) between January 18, 2018 and October 18, 2022, both dates inclusive (the "Class Period"). The lawsuit seeks to recover damages for NewAge investors under the federal securities laws. To join the NewAge class action, go to https://rosenlegal.com/submit-form/?case_id=10143 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose, among other things, that: (1) NewAge never entered into a "distribution agreement" or "initiative in partnership" with the military and never had plans to sell its products at all commissaries and exchanges around the world; (2) NewAge did not have adequate inventory of its products to fulfill this reported agreement; (3) NewAge did not actually expand its product lines or distribution agreements as represented; (4) the Company lacked adequate internal controls; (5) as a result the Company had a heightened risk of regularly scrutiny and ultimately subject to an SEC investigation and action; and (6) as a result of the foregoing, defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than February 6, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to https://rosenlegal.com/submit-form/?case_id=10143 or to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors.[GN] PARSEC INC: Remand of Johnson Class Suit to State Court Denied -------------------------------------------------------------- Judge Dale S. Fischer of the U.S. District Court for the Central District of California denies the Plaintiffs' motion to remand their case, TYRONE JOHNSON, et al., Plaintiffs v. PARSEC, INC., Defendant, Case No. CV 22-6930 DSF (MARx) (C.D. Cal.), to state court. Plaintiffs Tyrone Johnson and Terrence Kennedy move to remand the wage-and-hour class action to state court, claiming that the amount in controversy requirement has not been met. Judge Fischer explains that under the Class Action Fairness Act, a removing defendant is required to demonstrate by the preponderance of the evidence that the amount in controversy exceeds $5 million. The Plaintiffs first challenge the competence of the evidence presented by the Defendant in support of removal, specifically two declarations by the Defendant's Director of Human Resources, Jessica Fouse. Fouse relies on the various payroll records maintained in the normal course of business to provide data on the number of employees, days worked, pay periods worked, start and termination dates, and hourly rates, among other things. Judge Fischer holds that this is the type of information commonly relied on when ruling on a motion to remand, and he rejects the Plaintiffs' suggestion that the Defendant was required to produce the excessively voluminous detailed records that Fouse has summarized for the purposes of this motion. Based on the information provided by the Defendant, Judge Fischer has little trouble concluding that the amount in controversy exceeds $5 million. In several places, the Plaintiffs argue that the Defendant has assumed a 100% violation rate, but this is generally not the case. This might arguably be the case for the waiting time penalty claim and the wage statement claim, but a 100% violation rate for these claims follows logically from the Plaintiffs' allegations. In fact, given the widespread violations alleged by the Plaintiffs, the wage statement and waiting time penalty claims alone cause the amount in controversy to exceed $5 million, even without any precise calculation of the number of breaks that were not provided. Any reasonable estimate of the breaks missed would further add to this amount. The Defendant's use of one missed meal break and one missed rest break per employee every two weeks is a very conservative estimate given the Plaintiffs' allegations and the calculations further bolster the Court's conclusion that the amount in controversy requirement is met. The motion to remand is, thus, denied. A full-text copy of the Court's Dec. 2, 2022 Order is available at https://tinyurl.com/2p9647n2 from Leagle.com. PHARMAGENICS LLC: Ibarra Sues Over Mislabeled Diet Pill Products ---------------------------------------------------------------- PEDRO IBARRA, individually and on behalf of all others similarly situated, Plaintiff v. PHARMAGENICS LLC, Case No. 30-2022-01294748-CU-CR-CXC (Cal. Super., Orange Cty., Dec. 2, 2022) alleges that the Defendant mislabeled its diet pill known as "Dr. Stephanie's Carb & Sugar Blocker" (the "Product"). According to the complaint, the Defendant sells the Product by falsely claiming that it will cause meaningful and sustainable weight loss by disrupting the digestion of certain foods. The Defendant's claim is false. Instead, the United States Food and Drug Administration has warned that the efficacy claims related to the ingredients of the Product "are not supported by competent and reliable scientific evidence", "lacks substantiation", and an "false and misleading," says the suit. PHARMAGENICS LLC develops, manufactures, promotes, markets, distributes, and sells diet pills in California. The Plaintiff is represented by: Scott J. Ferrell, Esq. Victoria C. Knowles, Esq. PACIFIC TRIAL ATTORNEYS 4100 Newport Place Drive, Ste. 800 Newport Beach, CA 92660 Telephone: (949) 706-6464 Facsimile: (949) 706-6469 PITTSBURGH, PA: Suit Claims Discriminatory COVID-19 Mandate ----------------------------------------------------------- Megan Guza at Pittsburgh Post-Gazette reprots that a class action lawsuit filed on behalf of dozens of current and former Pittsburgh Regional Transit employees alleges the authority's COVID-19 vaccine mandate amounted to religious discrimination and, for some, ended in wrongful termination. The lawsuit, filed, claims the mandate was discriminatory against employees' religious beliefs for refusing religious exemptions and violated the Americans with Disabilities Act by denying medical exemptions. Pittsburgh Regional Transit leaders in January announced vaccination would be required of all employees. Employees had until March 15 to get vaccinated or face termination. Days before the mandate was set to go into effect, an Allegheny County Common Pleas judge ruled against an injunction sought by the Amalgamated Transit Union Local 85, the union representing roughly 2,300 PRT employees. Since then, 43 bus operators and 44 other PRT employees have been terminated for violating the mandate. In the first years of the pandemic, seven employees died from the virus or virus-related complications, said spokesman Adam Brandolph. None have died since the mandate went into effect. Employees were permitted to ask for a medical or religious exemption, which the lawsuit called "nothing more than a sham . . . to attempt to comply with federal and state law." The lawsuit alleged that around 75 employees who had valid religious or medical exemptions were wrongfully terminated. One example cited in the lawsuit claims a bus operator was advised by a doctor to avoid the vaccine because of pre-exisiting anaphylaxis. According to the lawsuit, his exemption was denied. He said a pharmacy chain later refused to vaccinate him given his condition. "[He] went from hero to zero for following the advice of his doctor," the lawsuit claimed. It also alleges the committee convened to evaluate exemption requests were told to "deny all medical and religious exemptions unless a particular employee fell into a designated group of employees who were essential to [PRT's] continued operations." The lawsuit claimed every exemption request was denied and "the decision to rid its workforce of the unvaccinated was the predetermined plan." Mr. Brandolph said the notion that PRT denied all requests for exemptions is "patently false." He declined further comment on the lawsuit. The lawsuit alleges that "hundreds of employees with either valid religious and/or medical exemptions that were summarily denied" were coerced into getting the vaccine. Beyond the fired PRT employees, the lawsuit is seeking to represent the "well over 350 employees" who sought an exemption but were denied, as well as the "hundreds of employees" that got vaccinated because they believed "they had no choice but to get it or get fired." The lawsuit is seeking an injunction against the vaccine mandate, reinstatement of fired employees, back pay and attorney's fees.[GN] PROCTER & GAMBLE: Settles Benzene Aerosol Class Action for $8-Mil. ------------------------------------------------------------------ Top Class Actions reports that Procter & Gamble (P&G) agreed to pay $8 million as part of a settlement to resolve claims its aerosolized products contain benzene, a known carcinogen. Consumers do not need to provide proof of purchase in order to benefit. The Procter & Gamble settlement benefits consumers who purchased Secret, Old Spice, Pantene, Waterless, Aussie, Herbal Essences or Hair Food aerosol antiperspirant, deodorant, body spray, dry shampoo or dry conditioner products between Nov. 4, 2015, and Dec. 31, 2021. According to a class action lawsuit against P&G, aerosol products sold by the company's brands were contaminated with benzene. Benzene is formed both naturally in volcanoes and forest fires and through synthetic products such as the production of crude oil and gasoline, according to the U.S. Centers for Disease Control and Prevention. Although the chemical is used to make plastics and other synthetics, benzene is a carcinogen associated with leukemia. P&G recalled several of its aerosol products in December 2021 due to benzene contamination, the plaintiffs note. Several class action lawsuits followed these recalls, claiming that consumers wouldn't have purchased the products if they knew the aerosol items would expose them to a known carcinogen. Plaintiffs in the consolidated case sought refunds for purchased P&G aerosol products and compensation for false advertising. P&G hasn't admitted any wrongdoing but agreed to an $8 million class action settlement to resolve these allegations. Under the terms of the Procter & Gamble settlement, class members can receive a cash payment based on the number of products they purchased and whether they provide proof of purchase. Each eligible product will result in either $3.50 in cash or a voucher for the same product purchased. Voucher value varies depending on brand and type, as follows: $5 for Old Spice Hair; $6 for Aussie; $7 for Old Spice, Secret or Herbal Essences; $9 for Pantene or Waterless; and $10 for Hair Food. Class members can claim up to three eligible products without proof of purchase for a maximum payment of $10.50 or applicable vouchers. With proof of purchase, class members can receive compensation for each eligible product they purchased. In addition to monetary payments, the Procter & Gamble settlement provides non-monetary relief. The company has agreed to implement material testing, finished product testing and other measures to monitor for benzene contamination in the future. The deadline for exclusion and objection is Jan. 26, 2023. The final approval hearing for the Procter & Gamble benzene products settlement is scheduled for May 30, 2023. In order to receive benefits under the P&G settlement, class members must submit a valid claim form by Jan. 26, 2023. Who's Eligible Consumers who purchased Secret, Old Spice, Pantene, Waterless, Aussie, Herbal Essences or Hair Food aerosol antiperspirant, deodorant, body spray, dry shampoo or dry conditioner products between Nov. 4, 2015, and Dec. 31, 2021 Potential Award Varies Proof of Purchase Class members can claim up to three eligible products without proof of purchase for a maximum payment of $10.50 or applicable vouchers. With proof of purchase, class members can receive compensation for each eligible product they purchased. A dated receipt or other document evidencing the class member's actual purchase of one or more of the P&G aerosol products between Nov. 4, 2015, and Dec. 31, 2021. Claim Form NOTE: If you do not qualify for this settlement do NOT file a claim. Remember: you are submitting your claim under penalty of perjury. You are also harming other eligible Class Members by submitting a fraudulent claim. If you're unsure if you qualify, please read the FAQ section of the Settlement Administrator's website to ensure you meet all standards (Top Class Actions is not a Settlement Administrator). If you don't qualify for this settlement, check out our database of other open class action settlements you may be eligible for. Claim Form Deadline 01/26/2023 Case Name In re: Procter & Gamble Aerosol Products Marketing & Sales Practices Litigation, Case No. 2:22-MD-03025, in the U.S. District Court for the Southern District of Ohio Final Hearing 05/30/2023 Settlement Website AerosolSpraySettlement.com Claims Administrator Procter & Gamble Aerosol c/o Kroll Settlement Administration LLC PO Box 5324 New York, NY 10150-5324 833-709-0662 Class Counsel Gary Klinger MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN Kevin Laukaitis SHUB LAW FIRM Steven Bloch SILVER GOLUB & TEITELL LLP Mark S Reich LEVI & KORSINSKY LLP Richard S Wayne STRAUSS TROY CO LPA Rick Paul PAUL LLP Paul Doolittle POULIN WILLEY ANASTOPOULO LLC Bryan Aylstock AYLSTOCK WITKIN KREIS & OVERHOLTZ PLLC Jonathan Jagher FREED KANNER LONDON & MILLEN LLC Michael Reese REESE LLP Terence R Coates MARKOVITS STOCK & DEMARCO LLC Noah M Schubert SCHUBERT JONCKHEER & KOLBE LLP Defense Counsel Andrew Soukup COVINGTON & BURLING LLP [GN] RACKSPACE TECHNOLOGY: Faces Class Action Over Ransomware Attack --------------------------------------------------------------- Sebastian Moss at datacenterdynamics.com reports that the Rackspace Hosted Exchange outage has yet to be resolved, but that hasn't stopped the lawsuits from beginning. California-based Cole & Van Note has announced a class action lawsuit against Rackspace Technology for the email outage that began a week ago. Rackspace confirmed this week that the outage was due to a ransomware attack, but it has yet to detail how much, if any, data has been lost. It has also not said if it will pay the hackers to return data, nor given any indication of when it expects services to resume. "That Rackspace offered opaque updates for days, then admitted to a ransomware event without further customer assistance is outrageous," Scott Cole, the principal attorney on the case, said. "Despite hundreds of data breaches every year in this country, I am receiving reports of vulnerabilities in Rackspace's hosting environment that go back over a year. That, and a seeming lack of backup protocols is why a lawsuit like this is critical." The company is seeking monetary restitution, and a promise from Rackspace to implement and maintain sufficient security protocols going forward. Rackspace is currently trying to transition its customers to Microsoft 365. It said that its investigation into the attack is in its "early stages." The incident has seen the company's market cap drop from around $1 billion to around $670 million. The company was valued at more than $5 billion last year.[GN] RACKSPACE TECHNOLOGY: Fails to Prevent Data Breach, Suit Alleges ---------------------------------------------------------------- GARRETT STEPHENSON; and GATEWAY RECRUITING, LLC, individually and on behalf of all others similarly situated, Plaintiffs v. RACKSPACE TECHNOLOGY, INC., Defendant, Case No. 5:22-cv-01296 (W.D. Tex., Dec. 5, 2022) is an action against the Defendant for its failure to properly secure and safeguard the Plaintiffs' and Class Members' personally identifiable information ("PII") and/or other proprietary and highly confidential data stored within the Defendant's information network. The Plaintiff alleges in the complaint that the Defendant is responsible for the harms it caused, and will continue to cause, the Plaintiffs and thousands of others similarly situated persons in the massive and preventable security incident purportedly discovered by Defendant on or about December 2, 2022 (the "Security Incident"). As a result, the sensitive data of the Plaintiffs and Class Members were compromised through disclosure to an unknown and unauthorized third party, an undoubtedly nefarious third party that seeks to profit by defrauding the Plaintiffs and Class Members in the future, says the suit. RACKSPACE TECHNOLOGY, INC. provides information technology services. The Company offers colocation, managed cloud and hosting, compliance assistance, enterprise security, and data protection services. [BN] The Plaintiff is represented by: Scott Edward Cole, Esq. COLE & VAN NOTE 555 12th Street, Suite 1725 Oakland, CA 94607 Telephone: (510) 891-9800 Facsimile: (510) 891-7030 Email: sec@colevannote.com - and - Ronald W. Armstrong, II, Esq. THE ARMSTRONG FIRM, PLLC 310 S. Saint Mary's, Suite 2700 San Antonio, TX 78205 Telephone: (210) 277-0542 Facsimile: (210) 277-0548 Email: rwaii@tafpllc.com REAL CONCRETE: Court Certifies FLSA Collective Action in Snider --------------------------------------------------------------- In the class action lawsuit captioned as THOMAS SNIDER, on behalf of himself, and all other plaintiffs similarly situated, known and unknown, v. RICK GONZALEZ, individually, and REAL CONCRETE AND CORING, INC., d/b/a Colorado Coring & Cutting Inc., Case No. 1:22-cv-01289-RMR-SKC (D. Colo.), the Hon. Judge Regina M. Rodriguez entered an order: 1. granting the Plaintiff's unopposed motion and stipulation for conditional certification of Fair Labor Standards Act (FLSA) collective action and notice to members of the plaintiff class, and the Defendant's stipulation regarding pending motions; 2. denying as moot the Plaintiff's amended motion for stage- one conditional under fed. r. civ. p. 23, and plaintiff's amended motion to enter and continue plaintiff's amended motion for stage-one conditional certification of collective action pursuant to 29 u.s.c. section 216(b) and motion for class certification under fed. r. civ. p. 23; 3. conditionally certifying a Plaintiff Class defined as: "All past and present workers who, since February 2021, worked for one or more of the Defendants and were paid on an hourly basis"; 4. approving the proposed Notice and Consent forms and electronic Notice scripts; 5. directing the Defendants to provide Plaintiff's counsel with a list of the Putative Class members, with personal contact information, within 14 days of this Court's Order; 6. directing ther Defendants to, concurrently with the production of the list of Putative Class members, provide a certification, via declaration, as to the accuracy and completeness of said list; 7. approving the proposed Opt-In schedule; and 8. approving theStipulated Protective Order, which shall be entered as a separate Order. 9. directing the Plaintiff to meet and confer with Defendant regarding exact dates and times that the parties would be available for any desired status conference and contact the Court via email to request the setting of such a status conference. On May 24, 2022, Plaintiff Thomas Snider filed a Complaint bringing claims against Defendants Colorado Coring & Cutting Inc. and Rick Gonzalez for: (I) Violation of Fair Labor Standards Act, (II) Willful Violation of the Fair Labor Standards Act, (III) Liquidated Damages Under the Fair Labor Standards Act, and (IV) Supplemental State Law Claim Violation of the Colorado Overtime and Minimum Pay Standards Order. On May 26, 2022, the Plaintiff moved for stage-one conditional certification of collective action pursuant to 29 U.S.C. section 216(b) and for class certification under Federal Rule of Civil Procedure 23. ECF No. 9. On June 7, 2022, Plaintiff filed his First Amended Complaint to include REAL Concrete and Coring, Inc. as a Defendant. The First Amended Complaint remains the operative Complaint. Defendants Rick Gonzalez and REAL Concrete and Coring, Inc. answered the Amended Complaint on July 29, 2022. On June 8, 2022, Plaintiff filed his Amended Motion for Stage-One Conditional Certification of Collective Action Pursuant to 29 U.S.C. section 216(b) and Motion for Class Certification under Fed. R. Civ. P. 23. The Court addresses the request for conditional certification, approval of the notice plan, and a status conference, followed by the request for entry of the Stipulated Protective Order, below. A copy of the Court's order dated Dec. 6, 2022 is available from PacerMonitor.com at https://bit.ly/3F7yhal at no extra charge.[CC] RICE DRILLING: Class Certification Hearing Set for Jan. 12, 2023 ---------------------------------------------------------------- In the class action lawsuit captioned as J&R PASSMORE, LLC, et al., LLC et al v. RICE DRILLING D, LLC, et al., Case No. 2:18-cv-01587-ALM-KAJ (S.D. Ohio), the Hon. Judge Algenon L. Marbley entered an order setting date for class certification hearing on January 12, 2023 at 10:00 a.m. in Court Room 1, Room 331 of the U. S. Courthouse located at 85 Marconi Boulevard, Columbus, Ohio. The Class Certification Hearing in this case may not be continued by stipulation of the parties or counsel, but only by an order of the Court on good cause shown. Any request for a continuance should be made promptly after the reason for seeking the continuance becomes known. Counsel should prepare for this hearing with the knowledge that this Court has already studied the memoranda related to class certification. Counsel should be prepared to answer questions raised by the Court. A copy of the Court's order dated Dec. 8, 2022 is available from PacerMonitor.com at https://bit.ly/3uFvDDH at no extra charge.[CC] SHI INTERNATIONAL: Fails to Protect Employees' Info, Suit Claims ---------------------------------------------------------------- Kelly Mehorter at classaction.org reports that SHI International faces a proposed class action over its alleged failure to properly safeguard employees' and job applicants' sensitive information from a "foreseeable" data breach detected in July 2022. The 43-page case claims that SHI, an international IT provider and employer, discovered on July 4 of this year that cybercriminals had gained access to its computer systems. The incident compromised the personal data of at least 11,000 current and former employees and applicants, including their full names; Social Security numbers; home addresses; job titles; dates of employment; salaries; tax, banking and loan information; COVID-19 vaccination status and dates of COVID-19 illness, the lawsuit says. Per the complaint, the malware attack that sparked the incident was a direct result of SHI's failure to implement adequate cybersecurity measures. The case charges that SHI did not properly encrypt its employees' data and failed to comply with Federal Trade Commission guidelines and industry best practices for maintaining sensitive information. Instead, the company chose to retain employees' private data in a "reckless manner," the suit alleges. The case further contends that SHI could have detected the cyberattack sooner, or prevented it entirely, had it properly monitored its computer network. SHI's alleged negligence runs contrary to promises made on its website that it offers "expert services" to protect employees "as cybersecurity threats and the regulatory landscape change," the lawsuit relays. ". . . SHI made these promises in, among other things, its privacy notices that are made available to employee candidates in the course of their employment enrollment process," the case says. "Plaintiffs and the Class Members, as former and current SHI employees and employee candidates, relied on these implicit and express promises and on this sophisticated business entity to keep their sensitive Private Information confidential and securely maintained." According to the filing, SHI notified affected individuals of the incident in a delayed, "misleading and incomplete" letter dated July 27. The suit says that the company informed victims that cybercriminals "may" have accessed their information, even though it knew that the data had been compromised. The notice also failed to mention the nature of the compromised data, how malicious third parties were able to infiltrate SHI's system and whether the information is still in the hands of the attackers, the complaint asserts. The company has offered data breach victims two years of credit monitoring, which the lawsuit argues is "inadequate" given that affected individuals must guard against a lifelong risk of identity theft and other fraudulent uses of their personal information. One plaintiff, a former SHI employee, claims that their credit card information was used to make fraudulent charges in the wake of the data breach. The second plaintiff, also a former employee, says that they have experienced an increase in spam phone calls, emails and texts. As the case tells it, SHI should have known that its electronic records would be targeted by cybercriminals based on warnings issued by the FBI and U.S. Secret Service, as well as recent high-profile ransomware attacks against other major companies. The lawsuit looks to represent anyone whose private information was maintained on SHI's computer systems that were compromised in the 2022 data breach and who were sent a notice of the incident [GN] SILVERGATE CAPITAL: Bids for Lead Plaintiff Appointment Due Feb. 6 ------------------------------------------------------------------ The law firm of Kirby McInerney LLP announces that a class action lawsuit has been filed in the U.S. District Court for the Southern District of California on behalf of those who acquired Silvergate Capital Corporation ("Silvergate") (NYSE: SI) securities between November 9, 2021 through November 17, 2022 (the "Class Period"). Investors have until February 6, 2023 to apply to the Court to be appointed as lead plaintiff in the lawsuit. Silvergate, through its subsidiary Silvergate Bank, provides a banking platform for innovators, especially in the digital currency industry, as well as developing product and service solutions addressing the needs of entrepreneurs. On November 15, 2022, Marcus Aurelius Research tweeted that "[r]ecently subpoenaed Silvergate bank records reveal $425 million in transfers from $SI crypto bank accounts to South American money launderers." On this news, the price of Silvergate shares declined by $6.13 per share, or approximately 17.27%, from $35.49 per share to close at $29.36 on November 15, 2022. On November 17, 2022, The Bear Cave newsletter released an article about several companies with potential exposure to recently collapsed cryptocurrency exchange FTX, including Silvergate. The article highlighted the connection linking Silvergate to a money laundering operation that transferred $425 million off cryptocurrency trading platforms. On this news, the price of Silvergate shares declined by $3.00 per share, or approximately 10.75%, from $27.90 per share to close at $24.90 on November 18, 2022. The lawsuit alleges that, throughout the Class Period, Defendants made false and/or misleading statements and/or failed to disclose that: (1) the Company's platform lacked sufficient controls and procedures to detect instances of money laundering; (2) Silvergate's customers had engaged in money laundering in amounts exceeding $425 million; and (3) as a result of the foregoing, the Company was reasonably likely to receive regulatory scrutiny and face damages, including penalties and reputational harm. If you purchased or otherwise acquired Silvergate securities, have information, or would like to learn more about this investigation, please contact Thomas W. Elrod of Kirby McInerney LLP by email at investigations@kmllp.com, or by filling out this contact form, to discuss your rights or interests with respect to these matters without any cost to you. Kirby McInerney LLP is a New York-based plaintiffs' law firm concentrating in securities, antitrust, whistleblower, and consumer litigation. The firm's efforts on behalf of shareholders in securities litigation have resulted in recoveries totaling billions of dollars. Additional information about the firm can be found at Kirby McInerney LLP's website: http://www.kmllp.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. [GN] SILVERGATE CAPITAL: Glancy Prongay Files Securities Class Lawsuit ----------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM"), announces that it has filed a class action lawsuit in the United States District Court for the Southern District of California, captioned Rosa v. Silvergate Capital Corporation, et al., on behalf of persons and entities that purchased or otherwise acquired Silvergate Capital Corporation ("Silvergate" or the "Company") (NYSE: SI) securities between November 9, 2021 and November 17, 2022, inclusive (the "Class Period"). Plaintiff pursues claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"). "Recently subpoenaed Silvergate bank records reveal $425 million in transfers from $SI crypto bank accounts to South American money launderers. Affadavit from investigation into crypto crime ring linked to smugglers/drug traffickers." If you suffered a loss on your Silvergate investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at www.glancylaw.com/cases/silvergate-capital-corporation/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com or visit our website at www.glancylaw.com to learn more about your rights. On November 15, 2022, Marcus Aurelius Research tweeted that "Recently subpoenaed Silvergate bank records reveal $425 million in transfers from $SI crypto bank accounts to South American money launderers. Affadavit from investigation into crypto crime ring linked to smugglers/drug traffickers." On this news, the Company's Class A common stock price fell $6.13, or 17%, to close at $29.36 per share on November 15, 2022, on unusually heavy trading volume. On November 17, 2022, The Bear Cave newsletter released an article about several companies with potential exposure to recently collapsed cryptocurrency exchange FTX, including Silvergate. The article highlighted the connection linking Silvergate to a money laundering operation that transferred $425 million off cryptocurrency trading platforms. On this news, the Company's Class A common stock price fell $3.00, or 10.7%, to close at $24.90 per share on November 18, 2022, on unusually heavy trading volume. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the Company's platform lacked sufficient controls and procedures to detect instances of money laundering; (2) that Silvergate's customers had engaged in money laundering in amounts exceeding $425 million; (3) that, as a result of the foregoing, the Company was reasonably likely to receive regulatory scrutiny and face damages, including penalties and reputational harm; and (4) that, as a result of the foregoing, Defendant's positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you purchased or otherwise acquired Silvergate securities during the Class Period, you may move the Court no later than 60 days from this notice to ask the Court to appoint you as lead plaintiff. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules.[GN] SLEEPY'S LLC: N.J. Court Refuses to Certify Class in Gundell Suit ----------------------------------------------------------------- In the case, JEFFREY GUNDELL, on behalf of himself and others similarly situated, Plaintiff v. SLEEPY'S, LLC, et al., Defendants, Civil Action No. 15-7365 (ZNQ) (DEA) (D.N.J.), Judge Zahid N. Quraishi of the U.S. District Court for the District of New Jersey denies the Plaintiff's Motion to Certify Class. The Plaintiff brings the putative class action lawsuit on behalf of himself and others similarly situated, alleging violations of New Jersey's Truth-in-Consumer Contract, Warranty, and Notice Act ("TCCWNA"), the New Jersey Furniture Delivery Regulations ("FDR"), and the New Jersey Consumer Fraud Act ("CFA"). The action was removed to the Court on Oct. 8, 2015, from the Superior Court of New Jersey, Middlesex County. The Plaintiff's operative pleading, the Third Amended Complaint, was filed on March 18, 2019. The Complaint alleges that the Defendants' refusal to provide a refund for a non-conforming product and further unlawful contractual language in its invoices to that effect violates the TCCWNA, FDR, and CFA, and further seeks declaratory judgment that the limitation of liability provision in the sales order invoice is null and void. Specifically, the Third Amended Complaint arises out of a transaction between Gundell and Defendant mattress retailer Sleepy's. On Feb. 16, 2013, the Plaintiff placed an order for a Tempur-Pedic mattress at a Sleepy's location in East Brunswick, New Jersey, and scheduled delivery for March 2, 2013. Thereafter, on May 24, 2015, he placed an order for a new mattress base that allowed for newer features than his original mattress base. The delivery was scheduled for May 31, 2015. The Plaintiff conducted his own due diligence in buying the mattress, including speaking with Sears and Sleepy's employees to confirm the type of mattress base he was looking for.The specific and exact base that was selected and ordered by him was the "Tempur-Pedic Ergo Plus Adjustable Base." The mattress base was timely delivered. The Plaintiff was provided a customer invoice and sales order receipt in conjunction with his order that enumerated both his and Sleepy's rights and obligations. After the mattress base was delivered, the Plaintiff alleged that it was not compatible with his mattress. In November 2015, he settled his claim with Tempur-Pedic. Sleepy's asserts that the Plaintiff received a payment four times the purchase price. The Plaintiff acknowledges that he received a settlement payment and discloses the dollar amount, but asserts that it does not fully compensate him for the violation under the CFA, leaving Sleepy's liable for the remainder. Based on the foregoing facts, the Plaintiff now seeks certification of a class defined as follows: All consumers who were residents of New Jersey on Sept. 1, 2015, and who purchased household furniture or furnishings for future delivery to an address in New Jersey at any time on or after Sept. 1, 2009 who received the same or similar sales documents as those received by the Plaintiff in February 2013 and May 2015. The Plaintiff argues in his Motion that the proposed class satisfies Fed. R. Civ. P. 23(a) because the class is numerous, there are questions of law and fact common to the class, the class representative's claims are typical of the class, and Plaintiff and counsel will adequately represent the class. He also argues that the proposed class has satisfied Fed. R. Civ. P. 23(b)(2) because Defendants' conduct of containing unlawful provisions in its sales agreements is generally applicable to the class. Lastly, he submits that alternatively, partial certification under Rule 23(c)(4) should be granted with respect to particular issues if the claim as a whole cannot be certified. In their Opposition, the Defendants argue that the class cannot be certified because the Plaintiff lacks standing as there is neither an injury in fact nor causation. They further argue that class certification should be denied because it does not satisfy the requirements of Rule 23(a). Namely, the class is unascertainable and the Plaintiff himself lacks standing so he does not satisfy the typicality, commonality, and particularity requirements of Rule 23(a). Furthermore, the Plaintiff mistakenly reads 23(b)(2) to include class members who may receive damages, attorney fees, and other relief as "cohesive" when the purpose of 23(b)(2) is to address class claims that seek the same exact relief, such as reframing of the provisions at issue. In the Plaintiff's Reply, he rebuts the Defendants' arguments by asserting that he does in fact have standing because he has suffered an injury: the Defendants' enforcement of their unlawful sale term with respect to refunds deprived him of his right to a refund. Moreover, the class is ascertainable from the records as per the Declaration of Vanessa Guevara and the Plaintiff meets the requirements established by Rule 23(a). In response to the Defendants' allegation that the Plaintiff did not suffer the same harm as class members, the Plaintiff explains that the harm is the inclusion of the offending language in the Refund and Limitation of Liability provisions used in their transaction with the Defendants. Moreover, the Plaintiff satisfies commonality and typicality such that his claims are grounded in a contractual relationship where the agreements are virtually identical across the whole class. Lastly, the class satisfies the requirements of Rule 23(b)(2) because the Plaintiff is not asking for monetary damages on behalf of the class, he is asking that putative class members be provided Notice that the waiver of rights as contained in the Defendants' Sales Documents has been declared null and void under the TCCWNA and the Declaratory Judgment Act. In the Court's recent decision on a Motion for Summary Judgment filed by the Defendants, it dismissed all but Count Two of the Third Amended Complaint. Count Two seeks a declaratory judgment that the limitation of liability and the refund provisions in the sales order invoice are null and/or void as against statutes and public policy. Judge Quraishi, therefore, now considers whether certification of the Plaintiff's proposed class for that sole remaining claim is appropriate. He opines that the only conclusion that can be drawn from the evidence presented to the Court is that the number of class members would be equal-to-or-less-than 1,537,886 and equal-to-or-greater-than zero. Within that range, he can only speculate as to the number of class members. He therefore finds that the Plaintiff did not fulfill his burden of supplying circumstantial evidence specific to the disputed contract terms involved in the litigation because he premises his argument for numerosity on improper speculation. Because the Plaintiff has failed to demonstrate that the class is sufficiently numerous, the Plaintiff fails to carry his burden under Rule 23(a) and Rule 23(b)(2). Given this deficiency, Judge Quraishi need not consider whether there are questions of law and fact common to the class, whether the claims or defenses of the class representative are typical of the claims or defenses of the class, or whether class counsel is adequate. Lastly, he denies the Plaintiff's attempt to certify class under Fed. R. Civ. P. 23(C)(4) because he has failed to satisfy all of Rule 23(a)'s requirements. For the reasons, Judge Quraishi denies the Plaintiff's Motion to Certify Class. An appropriate Order will follow. A full-text copy of the Court's Dec. 6, 2022 Opinion is available at https://tinyurl.com/4ezvm2bv from Leagle.com. SPECTRUM PHARMA: Bids for Lead Plaintiff Appointment Due Feb. 2 --------------------------------------------------------------- The Class: Robbins LLP informs investors that a shareholder filed a class action on behalf of all purchasers of Spectrum Pharmaceuticals, Inc. (NASDAQ: SPPI) common stock between December 6, 2021 and September 22, 2022, for violations of the Securities Exchange Act of 1934. Spectrum purports to be a biopharmaceutical company focused on acquiring, developing, and commercializing novel and targeted oncology therapies. What Now: Similarly situated shareholders may be eligible to participate in the class action against Spectrum Pharmaceuticals. Shareholders who want to act as lead plaintiff for the class must file their papers by February 2, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. You do not have to participate in the case to be eligible for a recovery. All representation is on a contingency fee basis. Shareholders pay no fees or expenses. What is this Case About: Spectrum Pharmaceuticals Inc. Misled Investors Regarding the Viability and Efficacy of its New Drug According to the complaint, before the class period, defendants were conducting a Phase 2 clinical trial called ZENITH20 to evaluate the safety and tolerability of poziotinib in patients with locally advanced or metastatic non-small cell lung cancer that have certain mutations and were previously treated with the standard of care. On December 6, 2021, Spectrum issued a press release announcing it submitted a New Drug Application ("NDA") to the U.S. Food and Drug Administration ("FDA") for poziotinib's use in patients with previously treated locally advanced or metastatic NSCLC with HER2 exon 20 insertion mutations. The NDA submission was based on purportedly "positive results of Cohort 2 from the ZENITH20 clinical trial, which assessed the safety and efficacy of poziotinib." During the class period, defendants represented the safety and efficacy data from the ZENITH20 trial were positive and that they had initiated the required confirmatory phase 3 study. However, unknown to investors, this was not true. On September 20, 2022, the FDA released a briefing document ahead of its scheduled September 22, 2022 Oncologic Drugs Advisory Committee ("ODAC") meeting regarding poziotinib. In sharp contrast to defendants' representations that the ZENITH20 data was positive and that the required confirmatory Phase 3 trial was initiated and patients were being randomized, the briefing document identified material negative concerns about the efficacy and safety data supporting the poziotinib NDA, and revealed that defendants' Phase 3 confirmatory trial had not enrolled a single patient. On this news, shares of Spectrum common stock declined from a closing price of $1.06 per share on September 19, 2022, to a close at $0.66 per share on September 20, 2022, a decline of $0.40 per share, or over 37%. Analysts began reporting negatively regarding the ODAC meeting. Then, according to Reuters, on September 22, 2022, before the opening of the market, trading in Spectrum shares was halted at $0.63 per share pending the outcome of the FDA ODAC meeting. That same day, ODAC voted 9-4 not to recommend poziotinib for Accelerated Approval. On September 23, 2022, when trading in Spectrum common stock resumed, shares declined from a closing price of $0.63 per share on September 21, 2022 before trading was halted, to a close at $0.43 per share on September 23, 2022, a decline of $0.20 per share, or over 31%. On November 25, 2022, defendants caused Spectrum to issue a press release disclosing that the Company received a CRL from the FDA indicating the poziotinib NDA cannot be approved in its present form. Contact us to learn more: Aaron Dumas (800) 350-6003 adumas@robbinsllp.com About Robbins LLP: A recognized leader in shareholder rights litigation, the attorneys and staff of Robbins LLP have been dedicated to helping shareholders recover losses, improve corporate governance structures, and hold company executives accountable for their wrongdoing since 2002. To be notified if a class action against Spectrum Pharmaceuticals, Inc. settles or to receive free alerts when corporate executives engage in wrongdoing, sign up for Stock Watch today. Attorney Advertising. Past results do not guarantee a similar outcome. CONTACT: Aaron Dumas Robbins LLP 5060 Shoreham Pl., Ste. 300 San Diego, CA 92122 adumas@robbinsllp.com (800) 350-6003 www.robbinsllp.com [GN] THOMAS SALOW: Must Respond to Class Cert Bid by Jan. 13, 2023 ------------------------------------------------------------- In the class action lawsuit captioned as Lizette Trujillo, et al., v. Thomas Salow, et al., Case No. 4:20-cv-00484-JAS (D. Ariz.), the Hon. Judge James A. Soto entered an order regarding class certification related deadlines: -- The Defendant's motion is granted inasmuch as the time to respond to the motion for class certification is extended until Jan. 13, 2023. -- The Plaintiffs' reply as to the motion for class certification shall be due by Feb. 24, 2023. -- If the parties agree to a different briefing schedule, they are free to submit a stipulation and proposed order which will likely be approved. Dated this 8th day of December, 2022. On Dec. 8, 2022, Defendant filed a motion to extend the deadline to respond to the motion for class certification. As the current deadline is Dec. 12, 21 2022, and in light of the upcoming holidays, the Court will not await a response and reply which would not be due until after the deadline and in the midst of the holidays. A copy of the Court's order dated Dec. 8, 2022 is available from PacerMonitor.com at https://bit.ly/3UN3m8T at no extra charge.[CC] TICKETMASTER ENTERTAINMENT: Taylor Swift Fans File Antitrust Suit ----------------------------------------------------------------- Rachel Treisman, writing for NPR, reports that Taylor Swift fans are dressing for revenge -- or at least legal damages. More than two dozen disappointed Swifties have filed a class-action lawsuit accusing Ticketmaster and its parent company, Live Nation, of fraud, misrepresentation and antitrust violations over its botched Eras Tour ticket sale. Lawyers for the 26 plaintiffs, who live in 13 states across the U.S., filed the complaint in L.A. County Superior Court on Dec. 2. It alleges that the ticketing platform has a monopoly on primary and secondary markets and accuses it of engaging in fraudulent practices and various antitrust violations, including price discrimination and price fixing. "Defendant's anticompetitive behavior has substantially harmed and will continue to substantially harm Taylor Swift fans, as well as competition in the ticket sales marker and the Secondary Ticket Services Market," it reads. It seeks $2,500 for every violation of California's Unfair Competition Law, which prohibits false advertising and illegal business practices. Ticketmaster and Live Nation Entertainment have not responded to NPR's request for comment. Jennifer Kinder, one of the lawyers for the plaintiffs, told NPR over email that almost 400 people have expressed interest in joining the case since the complaint was first filed and will be added as plaintiffs, most likely before the end of the week. She expects the interest will continue to surge. "Until transparency and fairness is won in live entertainment ticket purchases, the Great War continues," she wrote, referencing a song from Swift's latest album, Midnights. Kinder sent NPR an updated complaint on Dec. 5 that names 50 plaintiffs (almost double the original number). A quick refresher on the Swift debacle When sales opened in mid-November, scores of loyal fans persisted through hours or even days of long waits, website crashes and fluctuating prices only to end up without tickets. They -- and numerous Democratic lawmakers -- blame those issues on Ticketmaster being poorly prepared for the heavy demand for Swift's upcoming tour, which will be her first since 2018. First, many of the 3.5 million registered "verified fans" were sent to waitlists, while those who did receive the coveted codes logged into a website that quickly crashed under what Ticketmaster called "unprecedented traffic" from both bot attacks and fans without codes. After a second day of presale tickets -- for Capital One card-holders -- went similarly, Ticketmaster canceled sales to the general public a day before they were supposed to open, citing "extraordinarily high demands on ticketing systems and insufficient remaining ticket inventory to meet that demand." Swift eventually issued a statement in which, without naming Ticketmaster, she called the situation "excruciating" and said her team had been assured multiple times that "they could handle this kind of demand." Ticketmaster has apologized to Swift and her fans. In a statement explaining what happened, it said that it had sold 2.4 million tickets (including a record 2 million in a single day), but acknowledged there had been issues with the process and said it is "working to shore up our tech for the new bar that has been set by demand" for Swift tickets. The concert chaos also prompted consumer protection investigations from multiple state attorneys general and calls from prominent Democratic lawmakers to break up the company. Critics say it is behaving like a monopoly, especially in the years since the controversial 2010 merger of Ticketmaster and event promoter Live Nation. The lawsuit is by, and for, live music fans After Kinder, a lawyer based in Dallas, tried unsuccessfully on multiple days to get tickets for herself and her preteen daughter, she turned to social media and saw thousands of frenzied fans expressing similar frustrations. She and her associate put out a Google form for people to submit details about their own experiences and gauge interest in a possible class action lawsuit, as she told the Washington Post and D Magazine (their legal team now also includes a lawyer from California). Julie Barfuss, the lead plaintiff, told the Post that she had taken the day off work to buy tickets, and tried to check out some 41 times -- so many times, in fact, that a customer service agent she chatted with told her the website had identified her as a bot. Barfuss didn't manage to get any of the tickets in her cart, though her card did get charged thousands of dollars for all 41 attempts (the charges were later scrubbed). "Ticketmaster's service is not superior or reliable; the massive disaster of the Taylor Swift presale is evidence enough of this," the lawsuit reads. "Ticketmaster does not charge high prices to give a better service, it charges higher prices because it has no real competition and wants to take every dollar it can from buyers." The plaintiffs are far from the only die-hard fans who ended up empty-handed. In Ticketmaster's memo explaining what had transpired, it estimated that 15% of interactions across its site experienced issues. Even if there hadn't been tech problems, it added, the demand for Swift tickets was simply too high to satisfy everyone. "For example: based on the volume of traffic to our site, Taylor would need to perform over 900 stadium shows (almost 20x the number of shows she is doing) . . . that's a stadium show every single night for the next 2.5 years," it said. "While it's impossible for everyone to get tickets to these shows, we know we can do more to improve the experience and that's what we're focused on." Ticketmaster's practices have taken center stage The lawsuit is one of several efforts to hold the ticketing giant accountable, as the Swift fiasco has renewed scrutiny of its dominant position in the market and the merger that put it there. The attorneys general of Tennessee, North Carolina, Pennsylvania and Nevada have launched investigations into the situation, while a number of Democratic lawmakers -- including Reps. Alexandria Ocasio-Cortez (D-N.Y.) and Bill Pascrell (D-N.J.) -- have publicly called for the company to be broken up. And the U.S. Department of Justice is pursuing a broader antitrust investigation into Ticketmaster's parent company that predates the Swift snafu, the New York Times has reported. Live Nation Entertainment defended its practices in a statement posted to its website last month, saying Ticketmaster complies with the consent decree that accompanied the merger, does not set or control ticket prices and only holds such a significant share of the market "because of the large gap that exists between the quality of the Ticketmaster system and the next best primary ticketing system." "Live Nation takes its responsibilities under the antitrust laws seriously and does not engage in behaviors that could justify antitrust litigation, let alone orders that would require it to alter fundamental business practices," it said. But not everyone is convinced. In the immediate aftermath of the incident, Sen. Amy Klobuchar, the chair of the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights, sent a letter to Ticketmaster's CEO expressing her longstanding concerns about lack of competition in the ticketing industry and asking about specific business practices. She and Sen. Mike Lee (R-U.T.) later announced that they will hold a hearing -- the date of which has yet to be announced -- to examine "how consolidation in the live entertainment and ticketing industry harms customers and artists alike." Klobuchar told NPR's All Things Considered that while the Swift incident may put Ticketmaster in the spotlight, the problem with the "vertically-integrated giant" is much bigger than any one superstar tour. "A lot of these hidden fees, high fees, are going on because there is no incentive for fair prices and superior offerings and innovation if you're the only company in town," she explained. What could a Congressional hearing do that a Justice Department investigation could not? Witness testimony could create a helpful record and potentially pave the way for legislation, Klobuchar said -- she said there are bipartisan efforts underway specifically related to the ticket industry but did not elaborate. This isn't the first high-profile attempt to challenge Ticketmaster's dominance -- Pearl Jam famously tried and failed to do so in the early 1990s, for example. But Klobuchar thinks things could play out differently this time around, in part because "a whole bunch of Swift fans is something that no one's ever dealt with in Congress." Klobuchar said throughout the history of monopolies, federal action tends to come only when public anger reaches a certain level -- and she sees that happening now. "There becomes this pitch point where there's so much anger from the public, and now it might be online," she added. "Before, it was on street corners and in farmers' halls. But when it gets to that point, that's when something gets done." [GN] TOUR RESOURCE: Bid for Class Settlement Approval Partly Granted --------------------------------------------------------------- In the class action lawsuit captioned as ANTHONY DELCAVO, individually and on behalf of all others similarly situated, v. TOUR RESOURCE CONSULTANTS, LLC, Case No. 2:21-cv-02137-JWL (D. Kan.), the Hon. Judge John W. Lungstrum entered an order that the parties' joint motion for approval of their settlement is granted in part and otherwise remains pending subject to final approval of the settlement. The Court preliminarily approves the settlement and proposed attorney fee award, approves the proposed procedures, appoints a settlement and notice administrator, and authorizes notice to the class (upon revision of the proposed notice); and the motion is therefore granted in part to that extent. The Defendant provides travel services for groups, and in 2019 a music group, the Bach Festival Society ("Bach"), arranged for defendant to provide services for a June 2020 tour to Italy. The Plaintiff's son was a member of the group, and in November 2019 plaintiff paid defendant $400 as an initial deposit for the trip. In March 2020, when travel to Italy became impossible in light of the COVID-19 pandemic, Bach's trip and plaintiff's booking were canceled. Payments by plaintiff and other participants in the Bach trip were refunded by defendant with the exception that defendant retained $400 as a cancellation fee for each participant. In March 2021, plaintiff filed this putative class action, in which plaintiff asserted common-law claims for unjust enrichment, conversion, and breach of contract, and claims under the Kansas Consumer Protection Act (KCPA), K.S.A. sections 50-626, -627. In November 2021, the Court granted in part plaintiff's motion for class certification, and it certified a class, limited to the participants in the Bach tour, for the assertion of all of plaintiff's claims except his claims under the KCPA based on affirmative misrepresentations by defendant. Subsequently, plaintiff and the class abandoned all claims other than the class claims, i.e., the claims under the KCPA based on alleged omissions. For its part, defendant has asserted a counterclaim for defamation, based on its allegation that the named plaintiff falsely accused it of having canceled the Bach tour. In November 2022, shortly before the scheduled trial date, the parties reached a settlement of their claims. The principal terms of the settlement agreement are as follows: -- defendant agrees to pay $400 to each of the 48 class members, for a total payment of $19,200; defendant agrees to pay $50,000 in attorney fees to class counsel, with half of that amount paid in flight and hotel benefits; and the parties agree to release each other for all liability relating to the claims asserted in this action. On November 21, 2022, the parties jointly filed the instant motion seeking approval of the settlement and other relief. No response to the motion has been filed. The Court hereby sets the final settlement approval hearing for February 28, 2023, at 1:30 p.m. CST, in Courtroom 440 in the federal courthouse in Kansas City, Kansas. A copy of the Court's order dated Dec. 8, 2022 is available from PacerMonitor.com at https://bit.ly/3Bk66Uv at no extra charge.[CC] TOYOTA MOTOR: Class Certification Deadlines Entered in Squires -------------------------------------------------------------- In the class action lawsuit captioned as WILLIAM SQUIRES, JESSE BADKE, AHMED KHALIL, MICHELLE NIDEVER, JOHN MURPHY, KEVIN NEUER, NICHOLAS WILLIAMS and DONNA SUE SCOTT, on behalf of themselves and all others similarly situated, v. TOYOTA MOTOR CORP, TOYOTA MOTOR NORTH AMERICA, INC. and TOYOTA MOTOR SALES, U.S.A., INC., Case No. 4:18-cv-00138-ALM (E.D. Tex.), the Hon. Judge Amos L. Mazzant entered an order that the Parties shall abide by the following deadlines in the remaining briefing on Plaintiffs' motion for class certification: -- Reply in Support of Motion for December 21, 2022 Class Certification: -- Plaintiffs' rebuttal expert December 21, 2022 reports due -- Close of Expert Discovery January 9, 2023 -- Daubert Motions: January 12, 2023 -- Defendants' Sur-Reply January 18, 2023 Toyota Motor is a Japanese multinational automotive manufacturer headquartered in Toyota City, Aichi, Japan. A copy of the Court's order dated Dec. 6, 2022 is available from PacerMonitor.com at https://bit.ly/3BkVEw2 at no extra charge.[CC] TP APPAREL: Web Site Not Accessible to Blind, Pena Suit Alleges --------------------------------------------------------------- WALESKA PENA, individually, and on behalf of all others similarly situated, Plaintiff v. TP APPAREL, LLC, Defendant, Case No. 725415/2022 (N.Y. Sup., Queens Cty., Dec. 12, 2022) is an action alleging that the Defendant's Web site, teepublic.com is not fully or equally accessible to blind and visually-impaired consumers, including the Plaintiff. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Web site will become and remain accessible to blind and visually-impaired consumers. TP APPAREL, LLC doing buisness as TeePublic, provides e-commerce services. The Company offers t-shirts, hoodies, tank tops, sweatshirts, stickers, phone cases, mugs, notebooks, pillows, tote bags, tapestries, and magnets. [BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. Daniela Mendes, Esq. MIZRAHI KROUB LLP 225 Broadway, 39th Floor New York, NY 10007 Telephone: (212) 595-6200 Facsimile: (212) 595-9700 Email: ekroub@mizrahikroub.com dmendes@mizrahikroub.com TRULIEVE INC: Faces Class Suit Over Mass Layoffs Without Notice --------------------------------------------------------------- wfsu.org reports that workers laid off by Trulieve, Inc., the state's largest medical-marijuana operator, have filed a potential class-action lawsuit alleging the Tallahassee-based company failed to give adequate notice before letting them go. Trulieve, which operates in nine states including Florida, laid off an unspecified number of workers over the past few weeks at facilities in North Florida, where its grow operations are based. The lawsuit alleges Trulieve failed to comply with the federal Worker Adjustment and Retraining Notification Act, which requires advance notice before plant closings or mass layoffs. Tallahassee attorney Tiffany Cruz filed the lawsuit on behalf of Ranjill O'Neil, who worked at the company's Quincy location. The lawsuit said workers at Trulieve operations in Quincy, Monticello and Midway were laid off. It said federal law requires Trulieve to give employees at least 60 days notice before termination but did not do so. The lawsuit seeks certification as a class action. Trulieve disputed the allegations. Trulieve "has complied with all state and federal laws with regards to reductions in force," Tallahassee attorney Glenn Burhans, Jr., a partner in the Stearns Weaver Miller firm, said in a statement. "Where possible, Trulieve offered impacted employees new positions at the same site or at other sites in the area. Where transfers were not feasible or accepted, employees were offered severance packages," the statement said. In a separate statement, a Trulieve spokesman attributed the layoffs to a "combination of factors." The company also was "consolidating redundant positions" after a merger last year, according to the statement. Trulieve said it is "committed to Northwest Florida," pointing to a new 750,000 square-foot facility in Jefferson County. The cannabis operator employs nearly 9,000 workers across the country and is hiring "for new positions in other areas," according to the statement. Trulieve in October 2021 finalized a merger with Harvest Health & Recreation Inc., making it the "largest and most profitable" marijuana operator in the nation, a press release announcing the deal said. The lawsuit seeks monetary damages equal to the sum of unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay and other benefits for 60 days following the date of the workers' termination. [GN] TSCHETTER SULZER: Class Suit to Continue Despite Dismissal Bids --------------------------------------------------------------- Catie Cheshire at westword.com reports that a class-action lawsuit against the Tschetter Sulzer law firm, which calls itself "#1 in Colorado Evictions" on its website, can continue despite the firm's attempts to have the case dismissed. In a December 5 order, Judge Charlotte N. Sweeney of the United States District Court ruled that contrary to what Tschetter Sulzer had argued, the federal court has jurisdiction over the case because Tschetter Sulzer's actions regarding a Stipulation and Advisement form qualify as debt-collection practices under the Fair Debt Collections Practices Act, adopted by Congress in 1977 and last amended in 2010. Shawnte Warden is the class representative whose experience is discussed in detail in the lawsuit, originally filed on January 31. 9to5 Colorado, which promotes equity issues in the state including affordable housing, helped Warden file the lawsuit; Jason Legg of Cadiz Law and state representative Steven Woodrow are the attorneys on the case. According to the lawsuit, when Warden lived at Mint Urban Infinity - whose tenants filed a class-action suit against the management company for poor conditions last fall - she received a notice on January 26, 2021, that she would have to appear in court on February 1 for an eviction notice. Tschetter Sulzer sent her a packet on January 31 that included a link to its website asking her to verify her identity; once she did that, the company sent her a link to the stipulation agreement, which she then signed. Along with implying that she would have more time to relocate by signing the agreement than if she lost in court, the firm "also led her to believe that if she moved out of her home and surrendered her keys before February 11, 2021, Tschetter would move the Denver County Court to vacate the judgment for possession entered against her and dismiss the eviction collection lawsuit without prejudice," the original filing noted. Warden moved out by February 4, 2021, but Tschetter Sulzer did not dismiss the eviction collection lawsuit until after Warden filed the class-action lawsuit over a year later. As a result, Warden's rental application at another property in August 2021 was denied because of her past eviction. "That's a problem that, in mass, affects Colorado renters," Legg says. "We'll find out through discovery, but it seems like they don't really follow up, and what that means is that eviction case records can haunt tenants - the thousands that they evict every year." Legg describes Tschetter Sulzer's attempt to convince the court to dismiss the case as an attempt to escape accountability, calling its argument that its actions don't relate to debt collections activity "somewhat silly." Attorneys can fall under the category of debt collector if a high volume of their business relates to collecting consumer debt; Tschetter Sulzer's argument was that the stipulation agreement at the center of Warden's suit is specifically not related to debt collection. But the court disagreed, ruling that Warden could have interpreted the action as debt collection and that document would free her from monetary and eviction claims. "Applying the reasonable consumer standard," the order says, "it finds that Plaintiff has sufficiently alleged facts that she interpreted the representations in the Stipulation and Advisement to mean that she could stay within her rental residence for additional time and that any money claims against her would be dismissed upon vacating the unit." Now the case will continue with discovery and class certification before trial. The plaintiffs in this class-action case include over 100 people who signed the stipulation agreement and still had an eviction noted on their record; they also had to relocate more quickly than if they had gone through the entire legal process, according to the original filing. "We can get a really big win for Colorado renters," Legg says, adding that he thinks Tschetter Sulzer "acknowledged, in the documents that we referenced in our complaint, that they're aware that their stipulation and the practice of presenting it to tenants is misleading."[GN] UBER TECHNOLOGIES: McGuireWoods Attorneys Discuss 9th Cir. Ruling ----------------------------------------------------------------- Diane Flannery, Esq., R. Trent Taylor, Esq., Sapir C. Shoshan, Esq., and Andrew F. Gann Jr, Esq., of McGuireWoods LLP, in an article for Lexology, report that on November 30, 2022, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court's finding that a settlement was not a coupon settlement when applying the three factors outlined in In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 950 (9th Cir. 2015). This case, McKnight v. Hinojosa, No. 21-16623, 2022 WL 17333820 (9th Cir. Nov. 30, 2022), concerned a class action for claims against Uber Technologies, Inc. and Rasier, LLC (collectively "Uber"). The allegations against Uber revolved around a fee, called the ‘Safe Rides Fee,' which was allegedly misrepresented by Uber. As a result of these allegations, Uber agreed to settle by providing relief to anyone who used Uber in the United States between January 1, 2013, and January 31, 2016, and was charged this fee. The terms of the settlement required Uber to pay $32.5 million into a settlement fund, which would then be used to distribute settlement payments to class members. Class members will first be able to submit a form claiming their payment in cash, through PayPal, or via eCheck. Class members who do not submit a form, will receive their share via credit on their Uber account. After 362 days, Uber will email class members who did not redeem this credit to update their payment method on file. Three days later, at the one-year mark, Uber will seek to return any unused credit to the class member's form of payment on file, minus a $0.07 transaction fee. Funds unable to be distributed through any of these methods "will be distributed cy pres to the National Consumer Law Center." The Ninth Circuit reviewed whether this arrangement should be classified as a coupon settlement de novo. The Ninth Circuit affirmed the district court's decision and held that this was not a coupon settlement. Section 1712 of the Class Action Fairness Act (CAFA) requires courts to apply "heightened scrutiny when approving settlement agreements awarding coupon relief." §1712(e). This statute, however, applies only if the settlement is a coupon settlement. Given that §1712 does not define a coupon settlement, three non-dispositive factors outlined in Online DVD are used to help define the term ‘coupon' and make this determination in the Ninth Circuit. The first factor, as outlined in Online DVD, is whether class members must use additional money before they can use the credit provided. In this case, the Ninth Circuit found this factor weighed against Uber's settlement being a coupon settlement. The Court found that even though "most class members' settlement awards are too small to purchase an Uber ride without paying more out of pocket," class members could claim their reward in cash, in which case no additional money would be needed to utilize the reward. The Court cited In re Easysaver Rewards Litig. as precedent to claim that those who accepted credit must have valued it as equivalently useful to cash. 906 F.3d 747, 759 (9th Cir. 2018). Online DVD's second factor is whether the credit is only valid for select products or services. Since the credit option here can only be used through the Uber app for Uber services, the Ninth Circuit court found this "factor favors construction of the [s]ettlement as a coupon settlement." Finally, the third factor asks whether the credit expires or is freely transferrable. In this case the credits are not transferable. While they do technically expire after a year, the Court found this situation to be unique because at that point, the credit is refunded onto the class member's method of payment. The Ninth Circuit found that these specific facts warrant a finding that this was not a coupon settlement. This case is an important reminder that parties in class action settlements must remain diligent on whether the proposed settlement falls within the parameters of Section 1712. [GN] UNION SECURITY: Class Certification Deadlines Amended in Class Suit ------------------------------------------------------------------- In the class action lawsuit captioned as ANTOINETTE LEWIS-ABDULHAADI v. UNION SECURITY INSURANCE CO., et al., Case No. 2:21-cv-03805-WB (E.D. Pa.), the Hon. Judge Wendy Beetlestone entered an order granting the Parties' stipulation that the class certification deadlines in the Third Amended Scheduling Order be amended as follows: Current New Deadline Deadline -- The Plaintiff's motion for Dec. 15, 2022 Jan. 27, 2023 Class Certification: -- Any Opposition to motion Jan. 16, 2033 Feb. 28, 2023 for class certification: -- Reply Memorandum in Feb. 6, 2023 March 21, 2023 Support of Class Certification: Union Security is a national provider of Medicare Supplement insurance solutions. A copy of the Parties' motion dated Dec. 6, 2022 is available from PacerMonitor.com at https://bit.ly/3UEFrsc at no extra charge.[CC] The Plaintiff is represented by: Adam Harrison Garner,Esq. Melanie J. Garner,Esq. THE GARNER FIRM ,LTD. 1617 John F. Kennedy Blvd., Suite 550 Philadelphia, PA 19103 Telephone: (215) 645 5955 Facsimile: (215) 645 5960 E-mail: adam@garnerltd.com melanie@garnerltd.com - and - R. Joseph Barton, Esq. Vincent Cheng, Esq. BLOCK & LEVITON LLP 1633 Connecticut Avenue NW, Suite 200 Washington, DC 20009 Telephone: (202) 734 7064 Facsimile: (617) 507 6020 E-mail: jbarton@blockleviton.com vincent@blockleviton.com - and - Jonathan M. Feigenbaum, Esq. ERISA ATTORNEYS 184 High Street, Suit 503 Boston, MA 02110 Telephone: (617) 357 9700 Facsimile: (617) 227 2834 E-mail: jonathan@erisaattorneys.com The Attorneys for the Defendants Union Security Insurance Co. & Sun Life Assurance Company of Canada, are: Mark E. Schmidtke, Esq. Mann-Martha Andrews, Esq. Byrne J. Decker, Esq. Robert C. Perryman, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 56 S. Washington St., Suite 302 Valparaiso, IN 46383 Telephone: (219) 242 8668 E-mail: mark.scmidtke@ogletree.com ann.andrews@ogletree.com Robert.Perrymans@ogletree.com The Attorneys for the Defendant Merakey USA, are: Marjorie M. Obod, Esq. Katherine Enright, Esq. Dilworth Paxson LLP 1500 Market Street, Suite 3500E Philadelphia, PA 19102 Telephone: (215) 575 7000 Facsimile: (215) 575 7200 E-mail: mobod@dilworthlaw.com kenright@dilworthlaw.com UNITED SERVICES: Fourth Amended Sched Order Entered in Tomczak -------------------------------------------------------------- In the class action lawsuit captioned as MALLOREY TOMCZAK, LUIS RIVERA-SOLIS, KALITHA HEAD, JOSEPHINE WALKER, AND LESLIE WYATT, on behalf of themselves and all others similarly situated, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, USAA CASUALTY INSURANCE COMPANY, USAA GENERAL INDEMNITY COMPANY, AND GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Case No. 5:21-cv-01564-MGL (D.S.C.), the Hon. Judge Mary Geiger Lewis entered a fourth amended scheduling order as follows: 1. The Plaintiffs shall file their May 31, 2023 motion for class certification no later than: 2. The Defendants shall file their September 15, 2023 brief in opposition to Plaintiffs' Motion for Class Certification no later than: 3. The Plaintiffs shall file their November 13, 2023 reply brief in support of their Motion for Class Certification no later than: 4. Motions to join other parties May 22, 2023 and amend the pleadings shall be filed no later than: 5. The Plaintiff(s) shall file and September 11, 2023 serve a document identifying by full name, address, and telephone number each person whom Plaintiff(s) expects to call as an expert at trial and certifying that a written report prepared and signed by the expert including all information required by Fed. R. Civ. P. 26(a)(2)(B) has been disclosed to other parties by: 6. The Defendant(s) shall file and November 13, 2023 serve a document identifying by full name, address, and telephone number each person whom Defendant(s) expects to call as an expert at trial and certifying that a written report prepared and signed by the expert including all information required by Fed. R. Civ. P. 26(a)(2)(B) has been disclosed to other parties by: 6. Counsel shall file and serve June 26, 2023 affidavits of records custodian witnesses proposed to be presented by affidavit at trial no later than: 7. Fact discovery shall be completed November 27, 2023 no later than: 8. Expert discovery, including expert December 11, 2023 depositions, shall be completed no later than: 9. The parties shall file a joint December 27, 2023 status report with the Court by: 10. Motions in limine must be filed March 11, 2024 no later than: 11. Mediation shall be completed in January 10, 2024 this case on or before: 12. The parties shall file and February 26, 2024 exchange Fed.R.Civ.P. 26(a)(3) pretrial disclosures no later than: USAA offers competitive auto rates, no-monthly service fee banking and retirement options to all branches of the military and their family. A copy of the Court's order dated Dec. 8, 2022 is available from PacerMonitor.com at https://bit.ly/3FJbWkZ at no extra charge.[CC] UNITED STATES: Court Refuses to Certify Class in Fisher Suit ------------------------------------------------------------ In the case, BRYNDON FISHER, Plaintiff v. THE UNITED STATES, Defendant, Case No. 15-1575 (Fed. Cl.), Judge Thomas M. Dietz the U.S. Court of Federal Claims denies Mr. Fisher's motion for class certification. Mr. Fisher brings a putative class action against the United States alleging claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and illegal exaction. He claims that the government overcharged users of the Public Access to Court Electronic Records ("PACER") system for accessing federal court dockets online because of a systemic flaw in PACER's billing code. PACER is an online portal that provides public access to court filings and case activity "at more than 200 federal courts." It is funded entirely through user fees set by the Judicial Conference of the United States and published in the Electronic Public Access Fee Schedule. The PACER search engine retrieves information such as the parties to a case, the parties' counsel, terminated parties, notices of electronic filing, and more, and provides this information in the form of a customized docket report. The information retrieved for each user is determined by their selection of up to 12 unique search variations. PACER provides that users are charged for these docket reports based upon the amount of "bytes extracted" when running a particular search. Mr. Fisher opened a PACER account in late 2013. Over the following year, he requested access to 164 court dockets. He contends that, due to a systemic flaw in the PACER billing code, he was overcharged for his access to these docket reports by approximately $30. He asserts that the PACER billing system is inconsistent with the terms of the PACER User Manual because, in its calculation of bytes extracted, it charges users for the number of bytes extracted immediately after a user runs a search, rather than the number of bytes contained in the final data set provided to users after PACER has truncated specific portions of the data. On Dec. 4, 2020, Mr. Fisher filed the motion for class certification under Rule 23 of the Rules of the United States Court of Federal Claims ("RCFC") presently before the Court. He seeks class certification for his claims on behalf of "all PACER users who, from December 28, 2009 through class certification, accessed a U.S. District Court, Bankruptcy Court, or the U.S. Court of Federal Claims and were charged for at least one docket report." Mr. Fisher's motion is fully briefed, and the Court heard oral argument on Nov. 2, 2022. RCFC 23 governs class action suits brought in the United States Court of Federal Claims. Under RCFC 23(a) one or more members of a class may sue as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. A class action may be maintained if RCFC 23(a) is satisfied and if: (1) not used; (2) the United States has acted or refused to act on grounds generally applicable to the class; and (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The requirements of RCFC 23(a) and RCFC 23(b) are in the conjunctive; thus, a failure to satisfy any one of them is fatal to class certification. The party seeking certification bears the burden of establishing that the requirements of RCFC 23 have been met by a preponderance of the evidence. Mr. Fisher's case turns on whether RCFC 23(b)'s requirements of predominance and superiority are met. The government does not dispute that the requirements of numerosity, commonality, typicality, and adequacy under RCFC 23(a) are met. Upon review, Judge Dietz finds that Mr. Fisher satisfies these requirements. he government contends, however, that Mr. Fisher has not met the burden of establishing predominance and superiority. Judge Dietz finds that Mr. Fisher has not demonstrated that the questions of law or fact common to the members of his proposed class predominate over questions affecting only individual members because the individualized questions of harm and damages overwhelm the common questions in this case. Further, he also finds that Mr. Fisher has not established that a class action would be superior to other available methods for adjudication because the likely difficulties in managing this case as a class action due to the individualized questions of harm and damages far outweigh the other RCFC 23(b)(3) factors. Because Mr. Fisher has failed to satisfy the predominance and superiority requirements of RCFC 23(b), Judge Dietz denies the Plaintiff's motion for class certification. The parties will file a joint status report by Dec. 23, 2022, with proposed further proceedings. A full-text copy of the Court's Dec. 7, 2022 Opinion & Order is available at https://tinyurl.com/4ehyk68e from Leagle.com. Amber L. Schubert -- aschubert@sjk.law -- Schubert, Jonckheer & Kolbe, LLP, San Francisco, CA, counsel for the Plaintiff. Meen G. Oh -- osec@doj.gov.p -- U.S. Department of Justice, Civil Division, Washington, DC, counsel for the Defendant. VERU INC: Bids for Lead Plaintiff Appointment Due February 6 ------------------------------------------------------------ The law firm of Robbins Geller Rudman & Dowd LLP announces that purchasers or acquirers of Veru Inc. (NASDAQ: VERU) common stock between May 11, 2022 and November 9, 2022, inclusive (the "Class Period") have until February 6, 2023 to seek appointment as lead plaintiff in the Veru class action lawsuit. Captioned Ewing v. Veru Inc., No. 22-cv-23960 (S.D. Fla.), the Veru class action lawsuit charges Veru and certain of its top executives with violations of the Securities Exchange Act of 1934. If you suffered substantial losses and wish to serve as lead plaintiff of the Veru class action lawsuit, please provide your information here: https://www.rgrdlaw.com/cases-veru-inc-class-action-lawsuit-veru.html You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. CASE ALLEGATIONS: Veru is primarily an oncology-based biopharmaceutical company that develops drugs for the management of breast and prostate cancers. Veru "opportunistically" developed sabizabulin (VERU-111), an orally administered "microtubule disruptor" for the treatment of COVID-19 in hospitalized patients at high risk for acute respiratory distress syndrome. The Veru class action lawsuit alleges that throughout the Class Period, defendants made false and/or misleading statements and/or failed to disclose material adverse facts about the data from the sabizabulin Phase 3 trial and Veru's interactions with the U.S. Food & Drug Administration ("FDA"). Specifically, Veru misled shareholders to believe the data from the Phase 3 trial was sufficient to support Emergency Use Authorization ("EUA") and the submission of a New Drug Application without any further studies. Veru's filings therefore concealed the true risks faced by Veru in gaining approval for its EUA request. On November 9, 2022, the FDA's Pulmonary-Allergy Drugs Advisory Committee ("AdCom") voted against granting Veru's EUA request by an 8-5 margin. One AdCom member who voted against EUA approval explained that there was "no direct evidence to support [sabizabulin's] antiviral activity." On this news, Veru's stock price fell approximately 54%, damaging investors. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased or acquired Veru common stock during the Class Period to seek appointment as lead plaintiff in the Veru class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the Veru class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the Veru class action lawsuit. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff of the Veru class action lawsuit. ABOUT ROBBINS GELLER: Robbins Geller is one of the world's leading complex class action firms representing plaintiffs in securities fraud cases. The Firm is ranked #1 on the 2021 ISS Securities Class Action Services Top 50 Report for recovering nearly $2 billion for investors last year alone - more than triple the amount recovered by any other plaintiffs' firm. With 200 lawyers in 9 offices, Robbins Geller is one of the largest plaintiffs' firms in the world and the Firm's attorneys have obtained many of the largest securities class action recoveries in history, including the largest securities class action recovery ever - $7.2 billion - in In re Enron Corp. Sec. Litig. Please visit the following page for more information: [GN] VITAMIN COTTAGE: Seeks to Decertify Class in Levine Suit -------------------------------------------------------- In the class action lawsuit captioned as MICHAEL LEVINE, individually and on behalf of all others similarly situated, v. VITAMIN COTTAGE NATURAL FOOD MARKETS, INC. d/b/a NATURAL GROCERS, Case No. 1:20-cv-00261-STV (D. Colo.), the Defendant asks the Court to enter an order decertifying the conditionally certified collective action pursuant to the Fair Labor Standards Act ("FLSA"). Discovery has revealed that the Opt-Ins' claims and Natural Grocers' defenses are so highly individualized that decertification is required as a matter of law. While cross-examination of 101 individual Opt-Ins at trial is a necessity as a matter of due process, such effort is simply not feasible and would destroy the very efficiencies Section 216(b) of the FLSA is designed to promote. This is a wage and hour putative class and collective action in which the Plaintiff, Michael Levine, asserts on behalf of himself and those similarly situated, that Natural Grocers misclassified Assistant Store Managers ("ASMs") as salaried, exempt employees under the FLSA and Colorado law, and should have paid them overtime. The Court granted conditional certification of the FLSA claims in this case on November 6, 2020. The Plaintiff has not moved for class certification of the Colorado claims, though the deadline for such motion passed nearly 11 months ago. Natural Grocers operates more than 150 stores in 20 states. A copy of the Court's order dated Dec. 7, 2022 is available from PacerMonitor.com at https://bit.ly/3uCTJio at no extra charge.[CC] The Plaintiff is represented by: Jason J. Conway, Esq. CONWAY LEGAL, LLC 1700 Market Street Suite 1005 Philadelphia, PA 19103 Telephone: (215) 278-4807 E-mail:jconway@conwaylegalpa.com - and - Brian David Gonzales, Esq. BRIAN D. GONZALES, PLLC 2580 East Harmony Road Suite 201 Fort Collins, CO 80528 Telephone: (970) 214-0562 E-mail: bgonzales@coloradowagelaw.com The Defendant is represented by: Steven M. Gutierrez, Esq. Austin W. Jensen, Esq. Jeremy B. Merkelson, Esq. HOLLAND & HART LLP 555 17th Street, Suite 3200 Denver, CO 80202 Telephone: (303) 295-8000 E-mail: sgutierrez@hollandhart.com awjensen@hollandhart.com jbmerkelson@hollandhart.com WESTERN AUSTRALIA: Faces Suit on Behalf of Banksia Hill Detainees ----------------------------------------------------------------- Rhiannon Shine, writing for ABC News, reports that lawyers representing hundreds of current and former detainees of Western Australia's notorious youth detention centre have filed a class-action lawsuit against the state government. Sydney-based lawyer Stewart Levitt, who is leading the case, said the claim had been filed and accepted in the Federal Court. He said the claim included testimonies from around 600 people who claimed they were mistreated while detained at either the state's only youth detention centre, Banksia Hill, or its predecessor facility, Rangeview. "It alleges effectively . . . physical abuse, restriction, restraint, breaches of the Disability Discrimination Act and inhumane treatment," Mr Levitt said. Banksia Hill was condemned by state Children's Court President Hylton Quail on multiple occasions this year in relation to the treatment of detained children. Judge Quail has also criticised the ongoing detention of a group of juveniles inside one of Perth's adult prisons. The facility was recently the subject of an ABC Four Corners report that exposed the use of a dangerous restraint technique the WA government subsequently announced would be banned. Mr Levitt said claimants ranged from current detainees to adults who had spent time in the state's youth detention system as far back as 1997. He said the case was "potentially worth hundreds of millions of dollars because there are so many people involved". "We've been directly instructed by about 600 [people]," he said. "The vast majority [are] Indigenous." Mr Levitt said the group was seeking financial redress. He said there were two lead complainants who were both 18 years old. "A boy who has a mental illness and a girl who has autism," he said. In the face of mounting pressure over the state's youth detention system, the West Australian government recently announced work was underway on a proposed on-country rehabilitation facility for at-risk youth in Western Australia's Kimberley. That was part of a $40 million package announced in May to "tackle juvenile crime in the Kimberley". That plan also included funding to expand the government's Target 120 early intervention program, which supports young people who are at risk of becoming repeat offenders. Following the Four Corners report last month, the government held a meeting to address concerns in the state's youth justice system. After the meeting, the WA government pledged an additional $63 million to improve Banksia Hill. Mr Levitt said the next step of the class action process would be a directions hearing in the Federal Court. He said the class action could take two to three years to complete. A spokeswoman for the WA government said as the matter was before the court, it would be inappropriate to comment. [GN] WINEDOWN INCORPORATED: Fails to Pay Proper Wages, Sorto Alleges --------------------------------------------------------------- CELSO REYES SORTO, individually and on behalf of all others similarly situated, Plaintiff v. WINEDOWN INCORPORATED d/b/a DON POLLO; SAUL B. SALAZAR; and FRANCISCO SALAZAR, Defendants, Case No. 1:22-cv-07350 (E.D.N.Y., Dec. 5, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Sorto was employed by the Defendants as kitchen staff. WINEDOWN INCORPORATED d/b/a DON POLLO owns and operates a restaurant doing business as "Don Pollo," located at Astoria, New York 11106. [BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 60 East 42nd Street - 40th Floor New York, NY 10165 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 Email: info@jcpclaw.com ZILLOW GROUP: Court Narrows Claims in Jaeger Securities Class Suit ------------------------------------------------------------------ In the case, JEREMY JAEGER, on behalf of himself and all others similarly situated, Plaintiff v. ZILLOW GROUP, INC., et al., Defendants, Case No. C21-1551 TSZ (W.D. Wash.), Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington, Seattle, grants in part and denies in part the Defendants' motion to dismiss the Corrected Consolidated Class Action Complaint for failure to state a claim. Jaeger brings the action on behalf of a putative class of persons who purchased or otherwise acquired shares of Class A or Class C common stock in Zillow between Aug. 5, 2021, and Nov. 2, 2021. He sues all the Defendants under Section 10(b) of the Securities Exchange Act of 1934, 5 U.S.C. Section 78j(b), and Rule 10b-5 promulgated by the Securities and Exchange Commission ("SEC"), 17 C.F.R. Section 240.10b-5. The Plaintiff also sues Executive Defendants Richard Barton, Jeremy Wacksman, and Allen Parker as control persons of Zillow under Section 20(a) of the Exchange Act, 15 U.S.C. Section 78t(a). Zillow is a Washington corporation. It is alleged to operate the most visited real estate website in the United States, "zillow.com," and other real estate websites, such as "trulia.com" and "streeteasy.com." Until 2018, Zillow generated most of its revenue from advertising and from referral fees received when it matched prospective buyers and sellers with real estate agents and brokers. According to the operative pleading, in April 2018, in response to slow growth in Zillow's core business and stagnating stock price, Zillow entered the "iBuyer" or "Instant Buyer" market. In the iBuyer market, companies use algorithms and technology to buy and resell homes quickly. Zillow's new iBuyer business was called Zillow Offers. The Defendants are alleged to have touted the accuracy of the algorithms used to price homes. On Feb. 25, 2021, Zillow announced that it had launched in certain markets a new program, Zestimate offer, which would provide an initial purchase offer from Zillow Offers to homeowners. Behind the scenes, Zillow was not meeting its home-purchasing goals. As a result, it initiated Project Ketchup, under which it applied systematic 'overlays' to drive up offers well above the pricing indicated by its algorithm and pricing analysts. These overlays are alleged to have caused Zillow to significantly overpay for thousands of homes. The backlog also increased Zillow's holding and interest rate costs, exposing it to additional risks from broader market movements. The Plaintiff alleges that the Defendants made several false and/or misleading statements to the market on two dates: (i) on Aug. 5, 2021, in a shareholder letter and earnings call, and (ii) on Sept. 13, 2021, at a Piper Sandler investment conference. These allegedly false or misleading statements fall into three categories: (i) statements about Zillow's reliance on and improvements to its algorithms; (ii) statements concerning the durability of operational, unit economic, and/or renovation process improvements; and (iii) statements attributing Zillow's inventory growth to consumer demand. Between Oct. 18, 2021, and Nov. 3, 2021, the Defendants made a series of corrective disclosures to the market. According to the operative pleading, these disclosures shocked market analysts. Each disclosure coincided with a decline in both Zillow's common and capital stock price. The Defendants now move to dismiss all of the Plaintiff's causes of action. Initially, Judge Zilly examines the Plaintiff's Section 10(b) Claim. To prevail on a Section 10(b) claim, a plaintiff must prove six elements: (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation." The Defendants move to dismiss the Plaintiff's Section 10(b) and Rule 10b-5 claim with respect to the first, second, and sixth elements, arguing that the Corrected Consolidated Class Action Complaint ("CAC") does not adequately allege an actionable misrepresentation or omission, scienter, or loss causation. Except as to two statements, which are forward looking, Judge Zilly denies the Defendants' motion. First, regarding safe harbor, he finds that except for CAC's paragraph 192, all other statements are not protected by the PSLRA safe harbor provision. In Paragraph 192, the CAC recounts the interaction between Piper Sandler analyst Thomas Steven Champion and Zillow's Chief Operating Officer Jeremy Wacksman. With respect to the PSLRA defense, he grants the Defendants' motion is as to CAC Paragraph 192, and dismisses the Plaintiff's claims related to the statements in CAC Paragraph 19 without prejudice and with leave to amend, although he is skeptical that the Plaintiff can cure the deficiency. To the extent premised on the PSLRA, he otherwise denies the Defendants' motion. Second, regarding false and misleading statements, Judge Zilly finds that the Plaintiff has plausibly pleaded that the challenged statements would have been misleading to a reasonable investor. The Plaintiff is entitled to the reasonable inferences to be drawn from the factual allegations of the CAC, and in light of those favorable inferences, the Plaintiff has plausibly pleaded that Zillow's statements about consumer demand were misleading. Third, with respect to the Defendants' failure to discloe Project Ketchup and the pricing overlays and the truth about reduced payments to contractors, Judge Zilly says the Plaintiff has alleged more than reduced payments to Zillow's contractors, and the disclosures cited by the Defendants do not mention that contractors were refusing, stopping, or delaying jobs as a result of the reductions or that the lower renovation costs might not be sustainable or were likely not durable. Fourth, Judge Zilly holds that contrary to the Defendants' contention, CAC Paragraphs 182-184 contain statements of fact and conclusions or projections drawn from facts; they are not puffery. Paragraph 191 describes what "we've learned" and what "we're still seeing," which concern the past and the present, respectively, and the Defendants' assertion that these statements are analogous to expressions about a promising outlook lack merit. Sixth, after evaluating scienter, Judge Zilly rules that (i) the Plaintiff quotes multiple former Zillow employees as indicating that Zillow's senior executives knew of Project Ketchup well before the Class Period; and (ii) the accounts of former employees and the core operations doctrine provide at least as compelling an inference of scienter as any opposing inference. Finally, Judge Zilly holds that the Plaintiff sufficiently alleges that the "truth became known" as a result of the various partial disclosures. A resultant stock drop accompanied each of these disclosures. Judge Zilly now turns to the Plaintiff's Section 20(a) Claims. Section 20(a) of the Exchange Act establishes joint and several liability for control persons who aid and abet securities violations. Judge Zilly states that courts have found general allegations concerning an individual's title and responsibilities to be sufficient to establish control at the motion to dismiss stage. The Plaintiff's allegations that, as corporate officers, the Executive Defendants exercised control over Zillow are adequate to survive the Defendants' Rule 12(b)(6) motion. For the foregoing reasons, Judge Zilly grants in part and denies in part the Defendants' motion to dismiss. He dismisses the Plaintiff's Section 10(b)/Rule 10b-5 and Section 20(a) claims relating to the statements set forth in CAC Paragraph 192 without prejudice and with leave to amend within 14 days of the date of his Order. He otherwise denies the Defendants' motion. The Clerk is directed to send a copy of the Order to all counsel of record. A full-text copy of the Court's Dec. 7, 2022 Order is available at https://tinyurl.com/5n8fnctw from Leagle.com. Asbestos Litigation ASBESTOS UPDATE: Enviro-Safe Must Cease Operations to Settle Claims ------------------------------------------------------------------- Chloe Gotsis, writing for mass.gov, reports that a Brockton asbestos consulting company will pay $52,000 in penalties and cease all operations to settle claims of illegal asbestos work during the 2020 redevelopment of a multi-building site that included multiple homes and an apartment building in a densely populated environmental justice neighborhood in Everett, Attorney General Maura Healey announced. This is the third case the AG's Office has brought against the same company in two years for illegal asbestos work at projects in Rockland, Arlington, Malden, Waltham, Boston, and Everett. The consent judgment, entered in Suffolk Superior Court, settles a lawsuit brought by the AG's Office against Enviro-Safe Engineering, the asbestos consulting company hired to survey the buildings set for demolition, including a former church, a parish hall, two single-family homes, and an apartment building for the presence of asbestos. The AG's lawsuit alleges that the company violated the state's clean air law and regulations by failing to properly inspect and sample areas that commonly contain materials potentially contaminated with asbestos and by failing to properly sample the areas that Enviro-Safe did inspect. The complaint further alleges that, as a result of these violations, the demolition of the buildings caused a release of asbestos at the work site, endangering workers, residents, and others in the community. "Contractors who work with asbestos have an obligation to abide by our state's critical workplace safety regulations and environmental laws," AG Healey said. "This company repeatedly put the health and safety of its workers and the public at risk with their reckless and dangerous work practices, and today's settlement stops them from doing it again." "The Massachusetts Department of Environmental Protection (MassDEP) has a team of analysts, scientists, investigators and attorneys who are expert in and dedicated to enforcing the Commonwealth's asbestos regulations," said Eric Worrall, director of MassDEP's Northeast Regional Office in Wilmington. "These laws are on the books to protect the environment and the public health, and the Department will continue to partner with the Attorney General's Office to refer the most egregious cases, including consultants who repeat serious violations for appropriate prosecution and resolution." Under the terms of the consent judgment with Enviro-Safe Engineering, in addition to paying $52,000 in civil penalties, the company must cease all business operations, including all asbestos-related work. This settlement comes after the AG's Office resolved two previous cases with Enviro-Safe Engineering by consent judgment for asbestos violations over the last two years. Under a 2021 settlement with the AG's Office, the company was required to pay $165,000 in penalties, retrain its employees on asbestos safety, and implement a detailed document management system to ensure accurate documentation of its asbestos work in the future to settle allegations of illegal asbestos work at homes in Boston, Malden, Arlington, and Waltham. In 2020, the AG's Office reached a settlement with Enviro-Safe, requiring the company to pay $10,000 in civil penalties for its involvement in illegal asbestos work at a large-scale renovation project at a low-income housing complex in an environmental justice neighborhood in Rockland. AG Healey has made asbestos safety a priority, as part of her office's "Healthy Buildings, Healthy Air" Initiative that was announced in March 2017 to better protect the health of children, families, and workers in Massachusetts from health risks posed by asbestos. Since September 2016, the AG's Office, with the assistance of MassDEP, has successfully brought asbestos enforcement cases that together have resulted in more than $6.2 million in civil penalties. ASBESTOS UPDATE: Honeywell Agrees to $1.3BB Asbestos Trust Fund --------------------------------------------------------------- Tim Povtak, writing for Asbestos.com, reports that to eliminate future funding obligations, Honeywell International Inc. has agreed to a one-time, lump sum payment of $1.325 billion to the asbestos trust fund it first established in 2013. If approved by the U.S. Bankruptcy Court for the Western District of Pennsylvania, the buyout agreement would likely end any additional asbestos-related liabilities for Honeywell. The payment is a significant investment toward future financial stability for the industrial giant, which is based in Charlotte, North Carolina. Honeywell's costly asbestos trust fund obligation stems from North American Refractories Company, which it owned from 1979 to 1986. NARCO was once one of America's largest manufacturers of asbestos refractory materials. It created heat-resistant products for Honeywell that were used to line high-temperature equipment. Although asbestos was once used widely for its strength and heat resistance, its toxicity led to serious health problems – including mesothelioma cancer – for those who worked with the products. It has led to decades of costly legal ramifications. Asbestos litigation drove NARCO into bankruptcy in 2002, leaving Honeywell responsible for future damages. The North American Refractories Asbestos Personal Injury Settlement Trust was created in 2013. It has paid out an estimated $523 million, periodically funded by Honeywell, to those harmed by NARCO asbestos products. The harm caused by NARCO asbestos products went well beyond what was used by Honeywell. In the 1970s, for example, NARCO was manufacturing automobile brake pads, also contaminated by asbestos. Workers in shipyards, power plants, rubber factories, paper mills and railyards also were harmed by NARCO products. In 2021, Honeywell sued the trust, claiming it was making undeserved payouts to too many claimants. The trust filed its own lawsuit against Honeywell, claiming the company was trying to evade its original obligation, which was estimated at $150 million annually. This one-time payout is expected to resolve the legal issues between the trust and Honeywell and end future obligations for the company. The current NARCO reserve of $695 million – once projected to cover asbestos-related claims through 2059 – would be removed from Honeywell's balance sheet. "Honeywell is hopeful that the bankruptcy court will approve the buyout so that we can permanently extinguish the liability on our books," the company said in a statement first published by Bloomberg News. According to the recent regulatory filing with the U.S. Securities and Exchange Commission, Honeywell will still have the right to collect proceeds from its insurance policies related to NARCO. The trust reported legal fees alone at $21 million for 2021. "Should the Buyout Agreement be approved by the Bankruptcy Court, the Buyout Closing would resolve all outstanding litigation currently ongoing between Honeywell and the trust," according to the regulatory filing. The NARCO trust fund is just one of 60 asbestos-related trust funds, worth a combined $30 billion, that exist today. Other companies with asbestos trust funds include Owens Corning Corporation, United States Gypsum, W.R. Grace and Company, Armstrong World Industries, Western MacArthur and Johns-Manville Corporation. Since the 1980s, they have paid out an estimated $20 billion to claimants. They were created by bankrupt companies, often overwhelmed by the thousands of lawsuits sparked by asbestos contamination. Trust claim payouts often range from $7,000 to $1.2 million, with a median value estimated at $180,000. Claimants often seek money from more than one trust in a lawsuit. ********* 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 ***