/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/221221.mbx C L A S S A C T I O N R E P O R T E R Wednesday, December 21, 2022, Vol. 24, No. 248 Headlines 7-ELEVEN INC: Entry of Final Judgment in Haitayan Suit Affirmed ACTELION PHARMACEUTICALS: Sued Over Blood Pressure Meds' Price Hike BANCO POPULAR: Bid to Compel Lipsett to Arbitrate Claims Denied BESTCOMP INC: Louisiana Sup. Ct. Flips $5MM Award in Williams Suit BG RETAIL: Fails to Pay Proper Wages, Zachary Suit Alleges BUILDING SERVICES: Guiracocha Sues Over Unpaid Overtime Wages CALIFORNIA FARMS MEAT: Nava Sues Over Unpaid Overtime Wages CANADA BREAD: Appeals Court Lacks Jurisdiction to Hear Ruling CEREBRAL INC: Bilbao Sues Over Unsolicited Text Messages COMMONWEALTH OF MASSACHUSETTS: Bagni Files Suit in Mass. Super. Ct. CONSUMER REPORTS: Bid to Dismiss Wallen's First Amended Suit OK'd CVS PHARMACY INC: Krivca Sues Over False and Misleading Labeling D'ADDARIO & COMPANY: Tenzer-Fuchs Files ADA Suit in E.D. New York DARON WORLDWIDE: Fagnani Files ADA Suit in S.D. New York DELAWARE: Court Denies Bid Class Certification in Crichlow Suit DEMERT BRANDS: Evans Files Suit in N.D. Illinois DOWNER EDI: Class Action Lawyers Mull Suit Following Stock Plunge ECCO RETAIL: Amort Suit Remanded to San Mateo Superior Court EPIC GAMES: Fortnite Video Game Addictive for Children, Suit Claims EQUIFAX CANADA: Hoskin & Harcourt Discusses Data Breach Suit Ruling ETHEREUMMAX: Judge Tosses Fraud Class Suit Involving Celebrities EXTENDED STAY AMERICA: Brittian Sues Over Denied Refund FAIRFIELD COLLECTIBLES: Fagnani Files ADA Suit in S.D. New York FAMILY PRACTICE: Roberts Files Suit in N.D. Illinois FAMILY SOLUTIONS: Bid to Decertify Class in Stephenson Suit Denied FAMILY SOLUTIONS: Loses Bid to Exclude Testimony in Stephenson Suit FANJOY CO: Luis Files ADA Suit in S.D. New York FRANK & EILEEN: Fagnani Files ADA Suit in S.D. New York GAIA INC: Rosen Law Firm Investigates Potential Securities Claims GEICO INDEMNITY: Andrade Suit Removed to D. New Jersey GOLDWATER BANK: District of Arizona Narrows Claims in Feins Suit GONCHEZ REALTY CORP: Hanyzkiewicz Files ADA Suit in E.D. New York HENNEPIN COUNTY PROBATE: Vickerman Files Suit in D. Minnesota HERTZ CORP: Settles Consumers Lawsuits Over Stolen Vehicles IDEXX LABORATORIES: Yuen Suit Transferred to D. Maine JOHNSON & JOHNSON: Faces Class Action Over Neutrogena Sunscreen JOLIET, IL: Faces Class Suit Over Hefty Fines for Commercial Trucks JPMORGAN CHASE: Radabaugh FLSA Suit Transferred to S.D. Ohio KHAYLIE HAZEL: Class Certification Discovery in Martin Suit Denied KIA AMERICA: Browning Files Suit in D. Arizona KIK INT'L: Angeles Class Suit Remanded to Los Angeles Super. Court KIMBERLY-CLARK CORP: Diapers Caused Chemical Burns, Suit Claims LANGUAGE LINE: Boyce Sues Over Unpaid Minimum and Overtime Wages LET'S MEAT INC: Kim Sues Over Failure to Pay Minimum Wages LIZA LUCION: Faces Class Action Over Immigration Scam in Canada MASTERCARD INC: Merricks to Launch Campaign for GBP17-Bil. Claim MELVIN PETERSON: Wilson Files Suit in D. Minnesota META PLATFORMS: C.C. Suit Removed to M.D. North Carolina MILTON ADAIR TINGLING: Justin Files Suit in S.D. New York N.Y.C. BICYCLES: Rodriguez Files ADA Suit in E.D. New York NATIONAL VISION: Maisnier Suit Removed to N.D. California NEW YORK, NY: Court Dismisses Without Prejudice Goring v. Carter NEW YORK, NY: Olivierre Files Suit in N.Y. Cty. Clerk NEW YORK, NY: Taxi Drivers Sue Over Post-Arrest License Suspensions NEW YORK: Asks Permission to File Up to 30 Pages Memorandum NEW YORK: Bertrand Sues Over Unpaid Overtime Wages NEWAGE INC: Bids for Lead Plaintiff Appointment Due February 6 NORTH CAROLINA: Faces Class Action Over Foster Children Abuse NURSELOOP USA: Johnson Files Suit in Cal. Super. Ct. OAKHURST PARTNERS: Fagnani Files ADA Suit in S.D. New York PROVIDENT BANCORP: Rosen Law Firm Investigates Securities Claims R.J.D. WILLIAMS: Court Certifies Class Action Over School Abuse RACKSPACE TECHNOLOGY: Q Industries Sues Over Failure to Secure Data REALPAGE INC: Bohn Sues Over Conspiracy to Fix Housing Prices RELIABLE POULTRY: Canion Sues Over Failure to Pay Overtime Wages RINGCENTRAL: Aliav Sues Over Deceptive Advertising and Marketing SCHOLASTIC INC: Rodriguez Files ADA Suit in E.D. New York SHERWIN-WILLIAMS COMPANY: Bagley Suit Removed to C.D. California SINGULARITY FUTURE: Bids for Lead Plaintiff Appointment Due Feb. 7 SINGULARITY FUTURE: Crivellaro Sues Over Decline in Market Value SIRIUS XM: Stipulated Protective Order Entered in Potts Class Suit SKIPTHEDISHES: Osler Hoskin Attorneys Discuss Class Action Ruling SOMNIA INC: Harris Sues Over Data Breach SOVEREIGN LENDING: Protective Order in DeVivo Suit Granted in Part SPIRIT AIRLINES: Curd Sues Over Wiretapping of Communications STANDARD FIRE: Harrington Suit Removed to D. Massachusetts STATE BAGS: Fagnani Files ADA Suit in S.D. New York STIIZY LLC: Sued for Allegedly Overstating Cannabis THC Content STITCHER MEDIA: Luis Files ADA Suit in S.D. New York STOCKX INC: Court Grants Bid to Compel Arbitration in Valiente Suit SUKUT CONSTRUCTION: Remand of Rodriguez Suit to State Court Denied SYNGENTA CROP: Slovak Files Suit in M.D. North Carolina SYSCO SACRAMENTO: Bid to Compel Discovery in Fite Class Suit Denied TALIS BIOMEDICAL: Securities Class Suit Tossed With Leave to Amend TGI FRIDAY'S: Must Face Class Action Over Mozzarella Snack Sticks TRINKET SHOP: Fagnani Files ADA Suit in S.D. New York TSLCJ LLC: Fails to Pay Proper Wages, Viera Suit Alleges UBER TECHNOLOGIES: Holland & Knight Discusses Settlement Ruling UNITED STATES: Cheng Files Suit in S.D. New York UNITED STATES: Greene's Bid for Appointment of Counsel Denied UNIVERSITY OF ILLINOIS: Bid to Certify Class in Brown Suit Denied USA WASTE: Arellano Suit Removed to E.D. California VERDECO RECYCLING: Avila Sues Over Unpaid Minimum, Overtime Wages VILLAGE CAREGIVING: Butler Sues Over Failure to Pay Overtime Wages VIVERANT PT: Reed Files TCPA Suit in D. Minnesota VOLVO CAR USA: Smith Sues Over Wiretapping of Website Visitors WAKEFERN FOOD: Fails to Pay Proper Wages, Smith Suit Alleges WELLS FARGO & COMPANY: Price Files Suit in Cal. Super. Ct. YAZAM INC: Faces Class Suit Over Ridesharing Service Empower YUGA LABS: Celebrities Among Defendants in Bored Ape NFT Scheme [*] Four Business Interruption Class Suits Return to Court in 2023 [*] NZ Gov't Accepts Key Recommendations on Class Action Reform ********* 7-ELEVEN INC: Entry of Final Judgment in Haitayan Suit Affirmed --------------------------------------------------------------- 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 notes that 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. 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. 9, 2022 Memorandum is available at https://tinyurl.com/mnrek4d from Leagle.com. ACTELION PHARMACEUTICALS: Sued Over Blood Pressure Meds' Price Hike ------------------------------------------------------------------- Corrado Rizzi, writing for ClassAction.org, reports that Actelion Pharmaceuticals faces a proposed class action lawsuit that alleges the company has illegally schemed to raise the unit price and quantity dispersed of certain high blood pressure drugs, causing Medicare Advantage and Medicaid health plans -- and, consequently, their patients -- to pay artificially high prices for the life-saving treatments. The 84-page RICO complaint against Actelion, Caring Voice Coalition (CVC) and CVC successor Adira Foundation alleges the entities have worked together to circumvent congressionally mandated co-payment requirements designed to combat the ever-increasing prices of Actelion's pulmonary arterial hypertension drugs, including Tracleer, Opsumit, Veletri and Ventavis. According to the case, the defendants executed their scheme through "numerous overt acts" that effectively eliminated price sensitivity for Medicare Advantage and Medicaid patients by covering the cost of their co-payments. This allowed Actelion to spike prices "without concern of their product not being dispensed due to patient financial restrictions," leading to the over-dispensing of "supra-competitively priced drugs," the suit alleges. More specifically, Actelion and CVC "colluded and agreed" that the latter would "act as an illegal conduit, disguised as an independent charity," through whom Actelion could funnel "kickbacks" to pharmacies, the suit claims. Per the case, the two defendants allegedly agreed that CVC would create a pulmonary arterial hypertension fund that would cater exclusively or near-exclusively to patients taking Actelion's drugs, and that the company would be the fund's sole donor. Through the fund, CVC would pay the co-payment obligations for Medicare Advantage and Medicaid patients who otherwise may not have been able to afford their portion of the cost. With price sensitivity eliminated, pharmacies could dispense more of the drugs and Actelion could raise their prices while federal health care programs were left to foot the bill, the lawsuit alleges. Essentially, Actelion "bribed" CVC to serve as a middleman to funnel kickbacks to pharmacies, the lawsuit alleges. The filing claims Actelion's bribes to CVC and the defendants' essentially illegal payments to federal healthcare program beneficiaries are violations of the federal Anti-Kickback Statute, which "makes it a crime to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce a person to purchase or recommend any good, service, or item covered under a federal health care program." Further, the case says Actelion routinely obtained data from CVC detailing the number of patients who were taking its drugs, CVC's spending on those patients and how much it expected to spend on them in the future. This information was allegedly used to ensure that CVC used Actelion's donations for only the company's drugs while allowing Actelion to perform "return on investment calculations." The lawsuit also alleges the defendants funneled Medicare Advantage and Medicaid Plan patients away from Actelion's free drug program because they were "eligible for participation in federal health programs." "In other words," the case says, "Defendants treated customers differently based on eligibility for participation in the federal health programs." According to the suit, Actelion ensured that large sums of money would continuously be paid to CVC, improperly influencing the group's actions. Likewise, the lawsuit says, the defendant ensured that co-payment assistance grants, paid for and facilitated by Actelion and distributed by CVC, also improperly influenced patients' receipt of and/or pharmacies' dispensing of the Actelion blood pressure drugs. "In doing so, Defendants eliminated the effects of price sensitivity—because the patients (i.e., consumers) were no longer incurring any cost—thereby eliminat[ing] price considerations, thus artificially increasing the quantity dispensed by pharmacies, and the amount of claims paid by Assignors and Class Members for Actelion Drugs. Accordingly, with price sensitivity eliminated, the Co-Payment Scheme allowed Actelion to circumvent congressional safeguards and artificially increase the price of Actelion Drugs for all prescriptions to supra-competitive levels." The complaint relays that Actelion in December 2018 paid $360 million to settle federal claims that it violated the Anti-Kickback Statute and False Claims Act. The Department of Justice's allegations against the pharmaceutical company are related to the conduct alleged in the instant proposed class action, and Actelion did not address or settle damages allegedly sustained by the proposed class members, the case says. "The improper actions alleged here have allowed Actelion to maintain supra-competitive prices by eliminating price sensitivity that would have directly benefited consumers and the public at large," the lawsuit reads. "Price sensitivity counterbalances Actelion's desire to inflate prices for medically necessary drugs—which is why Congress relies on price sensitivity as a vital mechanism for combating supra-competitive pricing for Government payors." The plaintiffs behind the case are companies that obtained assignments from entities (assignors) who provide health insurance coverage pursuant to Medicare Part C and Part D and Medicaid on behalf of enrollees. The assignors ultimately became financially responsible for the cost of the "illegally inflated and excessively dispensed" Actelion drugs at issue, the filing claims. The lawsuit looks to cover: "All Medicare Advantage Organizations, Medicaid Managed Care Organizations, and at-risk, first-tier, and downstream entities in the United States and its territories that from at least January 1, 2014 through present, pursuant to Medicare and/or Medicaid contracts offering Medicare and Medicaid benefits, provided services, purchased Subject Actelion Drugs, provided reimbursement, or possess the recovery rights to reimbursement for some or all of the purchase price of the Actelion Drugs resulting from CVC's or Adira's co-payment assistance"; And: "All self-funded, third-party payors and related entities in the United States and its territories that from at least January 1, 2014 through present, provided services, purchased the subject pharmaceuticals, provided reimbursement, or possess the recovery rights to reimbursement for some or all of the purchase price of Actelion Drugs resulting from CVC's or Adira's co-payment assistance." [GN] BANCO POPULAR: Bid to Compel Lipsett to Arbitrate Claims Denied --------------------------------------------------------------- In the case, FRANKIE LIPSETT, on behalf of himself and all others similarly situated, Plaintiff v. BANCO POPULAR NORTH AMERICA d/b/a POPULAR COMMUNITY BANK, Defendant, Case No. 22 Civ. 3901 (VM) (S.D.N.Y.), Judge Victor Marrero of the U.S. District Court for the Southern District of New York denies the Defendant's motion to compel arbitration. Banco Popular N.A. ("BPNA") seeks an order compelling Lipsett to arbitrate his claims against it on an individual basis. On May 13, 2022, Lipsett brought the putative class action against BPNA seeking monetary damages arising from BNPA's alleged "assessment and collection of 'overdraft fees' on accounts that were never actually overdrawn." BPNA is a bank that provides retail banking services to consumers and is headquartered in New York, New York. Lipsett opened an account with BPNA on Aug. 9, 2004. Lipsett's use of his account is governed by BPNA's Personal Banking Disclosure and Agreement ("PBD&A"). In 2004, the then-effective version of the PBD&A was the one dated March 2002. The 2002 PBD&A did not contain any dispute resolution provision, let alone a provision requiring mandatory arbitration. BPNA amended the PBD&A in 2008. Unlike the March 2002 PBD&A, the 2008 version included an arbitration provision. The 2008 PBD&A's arbitration provision also contained an opt-out clause. About six years later, on Jan. 17, 2014, BPNA sent a notice to its customers, including Lipsett. The 2014 Notice advised customers that BPNA had made "modifications" to its customers' "initial account disclosures as a result of changes in federal regulations, state law and bank policy." The 2014 Notice also provided BPNA's customers an opportunity to reject the Amended Account Agreement in whole by closing their account. It enclosed the amended agreement that would control Lipsett's relationship with BPNA. In 2021, BPNA again amended its PBD&A. The 2021 PBD&A's arbitration provision included amended language defining "Claim" but otherwise substantively remained the same as the 2013-2014 PBD&A's provision, including with respect to how new and existing customers could opt out. On Jan. 27, 2022, before the action was commenced, Lipsett's attorney, Jeffrey D. Kaliel, mailed a letter to BPNA's Arbitration Administrator Customer Care Center, as designated in the 2021 PBD&A, purporting to opt Lipsett out of the arbitration provision. On May 17, 2022, after Lipsett filed the action, BPNA responded by "electing to arbitrate the claims made" by Lipsett. In that letter, BPNA disputed that Lipsett's Jan. 27, 2022 letter was timely and asserted its belief that Lipsett remained subject to the arbitration provision. BPNA filed its motion to compel arbitration and brief in support on Sept. 8, 2022. Lipsett opposed the motion on Oct. 13, 2022 and BPNA filed its reply on Nov. 3, 2022. After considering the arguments, the Court ordered the parties to submit supplemental briefing addressing two issues: whether the 2014 and 2021 versions of BPNA's deposit account agreements constituted a request to Lipsett to enter into a new agreement, and the extent to which a party subject to an agreement containing an arbitration provision with an opt-out clause has a continuing obligation or opportunity to opt-out of arbitration each time the contract is amended or whether the party is bound by their assent to or rejection of arbitration at the first instance the opt-out procedure is offered. The parties filed their joint supplemental letter brief on Nov. 21, 2022. BPNA argues that Lipsett is subject to the arbitration provision. It also contends that Lipsett's claims are covered by the arbitration provision, and, as a preliminary matter that the question of arbitrability itself should be decided by an arbitrator. Lipsett counters that no contract was formed with respect to the arbitration provision. He argues that the addition of the 2008 PBD&A's arbitration provision was non-binding because it exceeded the scope of the 2002 PBD&A's provision that allowed BPNA to "change" but not "add" terms to the PBD&A. BPNA responds that Lipsett's arguments have already been rejected by another court in this District, citing Valle v. ATM National, LLC, in which a court in this District assessed and rejected arguments similar to Lipsett's regarding the same change of terms and arbitration provisions included in BPNA's 2013-2014 PBD&A at issue. It asserts that Valle is controlling and that the Court should follow Valle in finding that Lipsett assented to the arbitration provision by continuing to use his account. Judge Marrero first assesses whether a valid and enforceable agreement to arbitrate exists between Lipsett and BPNA. He concludes that because Lipsett had no meaningful opportunity to opt out of arbitration in 2008, in other words to clearly manifest assent to arbitration at that time, no contract to arbitrate was formed. Accordingly, BPNA's addition of the arbitration provision is invalid and not binding as to Lipsett. Because heso concludes, Judge Marrero does not address the parties' remaining arguments regarding the scope and arbitrability of the arbitration provision. For the reasons he stated, Judge Marrero denies BPNA's motion to compel arbitration with Lipsett under the parties' bank deposit agreements. He directs the Clerk to terminate the motion pending at Dkt. No. 20. BPNA is directed to answer or otherwise respond to the complaint within 21 days from the date of the Order. A full-text copy of the Court's Dec. 9, 2022 Decision & Order is available at https://tinyurl.com/59k6c73s from Leagle.com. BESTCOMP INC: Louisiana Sup. Ct. Flips $5MM Award in Williams Suit ------------------------------------------------------------------ In the case, GEORGE RAYMOND WILLIAMS, M.D., ORTHOPAEDIC SURGERY, A PROFESSIONAL MEDICAL LLC, ET AL. v. BESTCOMP, INC., ET AL., Case No. 2022-C-00100, C/W No. 2022-C-00113 (La.), Judge Jay B. McCallum of the Supreme Court of Louisiana: a. reverses the court of appeal's judgment affirming the trial court's order granting the Plaintiffs' motion for summary judgment and awarding $5 million against both Chartis Specialty Insurance Co. and Landmark American Insurance Co.; b. vacates the judgments of the lower courts; and c. dismisses the case. The consolidated matter arises from a class action for damages filed by Louisiana health care providers for alleged violations of the Preferred Provider Organizations ("PPO") statute. La. R.S. 40:2201, et seq. The Supreme Court granted writs to interpret the statute and to determine whether Defendant Stratacare, Inc. is a "group purchaser" subject to penalties for violating the mandatory notice provision of the statute. In 1984, the Louisiana Legislature enacted Chapter 12 of Title 40 of the Louisiana Revised Statutes of 1950 to establish the PPO statute. The statute was passed in an attempt to reduce and contain health care costs without jeopardizing: (1) the quality of patient care and (2) the ability of health care providers to maintain, update, and expand their facilities to serve their patients and communities, and to meet federal and state standards and regulations. By the late 1990s, with the advent of computerized automated bill review, "silent" PPOs flourished, causing significant problems for providers. To address the lack of transparency posed by silent PPOs, the legislature amended the PPO statute in 1999 to enact La. R.S. 40:2203.1, effective for all PPOs on Jan. 1, 2001. The amended statute requires all group purchasers to provide notice to providers (through a benefit card or other written notice) informing the providers that they are parties to the provider's PPO network agreement. Non-silent PPOs are exempt from the notice requirement under La. R.S. 40:2203. The amended statute allows providers to institute an action to collect statutory damages and attorney fees from a group purchaser who fails to comply with the notice provisions. BestComp established a PPO network pursuant to the PPO statute. This network allows payors (including self-insureds, third party administrators, and insurers) to access the network and pay discounted rates for medical services performed by health care providers who contract with BestComp. The Plaintiffs, a certified class of health care providers4, filed a petition for damages alleging that BestComp, as a "group purchaser," failed to comply with the mandatory notice requirements of La. R.S. 40:2203.1 B because it failed to provide a benefit card at the time service was rendered or timely written notice. They sought damages pursuant to La. R.S. 40:2203.1 G, which provides that failure to follow the notice requirements "shall subject a group purchaser to damages payable to the provider of double the fair market value of the medical services provided, but in no event less than the greater of fifty dollars per day of noncompliance or two thousand dollars, together with attorney fees to be determined by the court." The Plaintiffs amended their petition to add Stratacare, a technology company who licenses medical billing software and provides bill review services, as an additional "group purchaser." They alleged Stratacare entered into PPO agreements for PPO discounts on its own behalf and on behalf of its clients. Subsequently, the Plaintiffs amended their petition again to add Defendants Chartis and Landmark, Stratacare's excess liability insurers. Chartis and Landmark filed motions for summary judgment, arguing Stratacare is not a "group purchaser" under La. R.S. 40:2202(3) and, thus, is not liable for damages. The Plaintiffs also filed a motion for summary judgment, claiming Stratacare is a "group purchaser" that applied PPO discounts to their medical bills by virtue of its contract with BestComp, and a third-party defendant, Rehab Review. Further, they contended the claims against Stratacare are within the scope of their excess liability insurance policies and liability exceeded the $5 million policy limits. The trial court found Stratacare to be a "group purchaser" and, thus, liable for damages for failing to provide mandatory notice pursuant to the statute. It further found that the Plaintiffs proved sufficient violations, with each violation supporting a damage award of $2,000 pursuant to Subsection G. The trial court relied upon an affidavit from the Plaintiffs' certified public accountant, Mr. Robert A. Ehlers, who averred that he reviewed Stratacare's corporate records and identified a total of 11,126 PPO discounts taken by Rehab Review. The number of discounts multiplied by 200 equaled $22,252,000, which exceeded the available $5 million coverage of each excess insurance policy. Therefore, the trial court granted the Plaintiffs' motion for summary judgment and awarded $5 million against both Chartis and Landmark. The court of appeal affirmed, specifically finding Stratacare served as "all intermediary" within the meaning of the statute. On the applications of Chartis and Landmark, the Supreme Court granted writs and held oral argument to review the court of appeal's judgment. Judge McCallum states that there is no dispute that the Plaintiffs qualify as "providers." It is also undisputed that Stratacare did not have a contract with the Plaintiffs. The Plaintiffs' argument that Stratacare is an additional "group purchaser" is premised on two grounds: (1) the statutory scheme contemplates more than one group purchaser and (2) the permissive part of the definition of "group purchaser" as set forth in subsection (b) includes "other intermediaries." Both observations are true; nevertheless, they ignore the additional statutory requirement that the contract or contracts be entered into for the purpose of establishing a PPO. Judge McCallum holds that the evidence in the record indicates that the contract between BestComp and Stratacare never obligated Stratacare to contact, negotiate, or contract with providers, nor did Stratacare tender payment to them. Moreover, Stratacare had neither the obligation, nor the ability, to issue benefit cards or provide advance 30-day written notice. Thus, the very nature of Stratacare's services is to generate recommendations regarding payments based on the BestComp PPO rates after the medical services have already been rendered and invoiced. It would lead to an absurd result to hold Stratacare, and by extension its insurers, liable for failing to provide notice before treatment was furnished. Hence, according to Judge McCallum, the lower courts erred in failing to give legal effect to the legislature's deliberate omission, in failing to narrowly construe a punitive provision, and in failing to apply a plain language interpretation of the statute. Therefore, he finds Stratacare is not a "group purchaser." Accordingly, Judge McCallum reverses the court of appeal, vacates the judgments of the lower courts, and dismisses the case, finding the statute not applicable to Stratacare or its insurers. All other issues raised by Chartis and Landmark in their peremptory exceptions are mooted by the instant decision. A full-text copy of the Court's Dec. 9, 2022 Order is available at https://tinyurl.com/y3k7zs69 from Leagle.com. BG RETAIL: Fails to Pay Proper Wages, Zachary Suit Alleges ---------------------------------------------------------- TOVA ZACHARY, individually and on behalf of all others similarly situated, Plaintiff v. BG RETAIL, LLC, Defendant, Case No. 7:22-cv-10521 (S.D.N.Y., Dec. 13, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs. Plaintiff Zachary was employed by the Defendant as staff. BG RETAIL, LLC is engaged in the retainer store services featuring footwear. [BN] The Plaintiff is represented by: Brett R. Cohen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 BUILDING SERVICES: Guiracocha Sues Over Unpaid Overtime Wages ------------------------------------------------------------- Maria Guiracocha, Benjamin Paredes, Hector Javier Santiago Lopez, Jose Santiago Hernandez, Scarlet Alexandra Moran Fernandez, and Deisy Lopez Gomez, individually and on behalf of others similarly situated v. BUILDING SERVICES, INC. (D/B/A BUILDING SERVICES, INC.), MICHAEL GOMEZ, and GUADALUPE CASTILLO, Case No. 1:22-cv-07533 (E.D.N.Y., Dec. 12, 2022), is brought for unpaid overtime wages pursuant to the Fair Labor Standards Act of 1938, and for violations of the New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. The Plaintiffs worked for the Defendants in excess of 40 hours per week, without appropriate overtime compensation for the hours that they worked. Furthermore, the Defendants failed to pay the Plaintiffs wages on a timely basis. In this regard, the Defendants have failed to provide timely wages to the Plaintiffs. The Defendants' conduct extended beyond the Plaintiffs to all other similarly situated employees. The Defendants maintained a policy and practice of requiring the Plaintiffs and other employees to work in excess of 40 hours per week without providing the overtime compensation required by federal and state law and regulations, says the complaint. The Plaintiffs were employed as housekeepers by the Defendants. The Defendants own, operate, or control a janitorial/housekeeping service located in Huntington, New York, under the name "Building Services, Inc."[BN] The Plaintiffs are represented by: Catalina Sojo, Esq. CSM LEGAL, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 Facsimile: (212) 317-1620 CALIFORNIA FARMS MEAT: Nava Sues Over Unpaid Overtime Wages ----------------------------------------------------------- Nubia Nava and Aida Ramos, as aggrieved employees, and on behalf of all other aggrieved employees under the Labor Code Private Attorneys' General Act of 2004 v. CALIFORNIA FARMS MEAT COMPANY, INC., a California corporation; CITISTAFF SOLUTIONS, INC., a California corporation; and DOES 1 through 100, inclusive, Case No. 22STCV38400 (Cal. Super. Ct., Santa Clara Cty., Dec. 9, 2022), is brought against the Defendants for violations of the California Labor Code by failing to pay the Plaintiff overtime wages. The Defendants had and have a policy or practice of failing to pay overtime wages to Plaintiffs and other Aggrieved Employees in the State of California in violation of California state wage and hour laws as a result of, without limitation, Plaintiffs and other Aggrieved Employees working over 8 hours per day, 40 hours per week, and/or 7straight workdays in a workweek without paying them proper overtime wages, as a result of, without limitation, failing to accurately track and/or pay for all minutes actually worked; engaging, suffering, or permitting employees to work off the clock, including, without limitation, by requiring employees: to go through COVID-19 screenings and/or temperature checks off the clock, to come early to work and leave late work without being able to clock in for all that time, to remain on-call, to suffer under Defendant's control due to long lines for clocking in and complete pre-shift tasks before clocking in and post-shift tasks after clocking out, to clock out for meal periods and continue working, to don and doff uniforms and/or safety equipment off the clock, to attend company meetings off the clock, to make phone calls or drive off the clock; failing to include all forms of remuneration, including non-discretionary bonuses, incentive pay, meal allowances, and other forms of remuneration into the regular rate of pay for the pay periods where overtime was worked and the additional compensation was earned for the purpose of calculating the overtime rate of pay; detrimental rounding of employee time entries, editing and/or manipulation of time entries to show less hours than actually worked, and for paying straight pay instead of overtime pay, to the detriment of the Plaintiffs and other Aggrieved Employees, says the complaint. The Plaintiffs were employed by Defendants as a non-exempt employee. California Farms is a corporation organized and existing under and by virtue of the laws of the State of California.[BN] The Plaintiff is represented by: David D. Bibiyan, Esq. Jeffrey C. Bils, Esq. Joshua Shirian, Esq. BIBIYAN LAW GROUP, P.C. 8484 Wilshire Boulevard, Suite 500 Beverly Hills, CA 90211 Phone: (310) 438-5555 Fax: (310) 300-1705 Email: david@tomorrawlaw.com jbils@tomorrowlaw.com josh@tomorrowlaw.com CANADA BREAD: Appeals Court Lacks Jurisdiction to Hear Ruling ------------------------------------------------------------- Bernise Carolino, writing for Law Times, reports that the Ontario Court of Appeal recently said that it lacked the jurisdiction to hear an appeal from a certification decision since it was a procedural order describing the constitution of the class for the purposes of a certified class proceeding. The plaintiffs filed a motion under s. 2(1) of Ontario's Class Proceedings Act, 1992 (CPA). The motion sought an order under s. 5 of the CPA to certify a class proceeding alleging a widespread price-fixing conspiracy by various producers and retailers of manufactured packaged bread. Justice Edward Morgan of the Ontario Superior Court of Justice certified the proceeding against most of the named defendants. He identified common issues relating to the plaintiff's various claims and defined the class as all non-excluded Canadian residents who directly or indirectly bought packaged bread from a defendant retailer within the class period. The plaintiffs wanted to appeal the motion judge's definition of the class for the class action's purposes. The proposed appeal argued that the class definition was inconsistent with the judge's earlier reasons and was legally wrong, given the plaintiffs' evidence. The moving parties, who were some of the defendants in the underlying action, moved to quash the plaintiffs' appeal of the certification order. They contended that the appellate court lacked the jurisdiction to hear the appeal. Certification order not final In David v. Loblaw Companies Limited, 2022 ONCA 833, the Ontario Court of Appeal quashed the appeal. First, the appellate court ruled that the CPA's appeal provisions governed. The certification order was not a final order since it did not expressly or impliedly decide the claims' ultimate merits, the court said. The motion judge never suggested that he was dismissing any part of the potential plaintiffs' claims, the Court of Appeal noted. Instead, he defined the class to reflect his understanding of the nature and scope of the plaintiffs' allegations, the court said. Counsel for Canada Bread Company, Limited, one of the defendants, stated that the company was not arguing that res judicata or abuse of process should bar anyone excluded from the defined class from raising their claims in a proceeding that described the conspiracy's nature and scope as including the excluded persons. Second, the Court of Appeal held that the appeal provisions as they existed before the CPA's 2020 amendments, including the former s. 30(2) of the CPA, were applicable to the appeal. The transitional provision in s. 39(1) clearly showed that the Legislature drew a line between class proceedings brought before the effectivity of the 2020 amendments and proceedings initiated after that date, the appellate court said. The language in s. 39(1) did not suggest that the section was inapplicable to the CPA's provisions governing rights of appeal, the court added. Thus, an appeal from the certification order lay to the Divisional Court with leave from a Superior Court judge, the Court of Appeal concluded. [GN] CEREBRAL INC: Bilbao Sues Over Unsolicited Text Messages -------------------------------------------------------- Axel Bilbao, individually on behalf of all others similarly situated v. CEREBRAL, INC., Case No. CACE-22-017977 (Fla. 17th Cir. Ct., Broward Cty., Dec. 9, 2022), is brought against the Defendant for the Defendant's violations of the Florida Telephone Solicitation Act by engaging in unsolicited text messages. The FTSA protects consumers from telemarketers who send them text message advertisements involving an automated system for the selection or dialing of telephone numbers ("Automated") without first obtaining Prior Express Written Consent ("PEWC"). In direct contravention of these protections, however, telemarketers such as the defendant routinely send text message advertisements to consumers while hiding behind telephone numbers that, when called back, result in no connection between consumer and telemarketer (or seller) whatsoever and send Automated Text Message Advertisement without first obtaining PEWC. In order to combat this predatory telemarketing behavior, the FTSA authorizes an award of damages whenever a violation occurs and provides a private right of action for statutory damages for each violation, says the complaint. The Plaintiff's Cell Phone has been sent Automated Cerebral Text Message Advertisements sporadically since July 1, 2021. Cerebral is registered as a Foreign Profit Corporation, which owns and operates an online platform, Cerebral.com, which services people throughout Florida and the rest of the country.[BN] The Plaintiff is represented by: Joshua A. Glickman, Esq. Shawn A. Heller, Esq. SOCIAL JUSTICE LAW COLLECTIVE, PL 974 Howard Ave. Dunedin, FL 34698 Phone: (202) 709-5744 Fax: (866) 893-0416 Email: josh@sjlawcollective.com shawn@sjlawcollective.com COMMONWEALTH OF MASSACHUSETTS: Bagni Files Suit in Mass. Super. Ct. ------------------------------------------------------------------- A class action lawsuit has been filed against Commonwealth of Massachusetts, et al. The case is styled as Allicia Bagni, on behalf of Herself and all others similarly situated v. Commonwealth of Massachusetts, Joseph D. McDonald, Jr., Sandra M Wright, Thomas J. O'Brien, Case No. 2283CV00912 (Mass. Super. Ct., Plymouth Cty., Dec. 8, 2022). The case type is stated as "Contract / Business Cases." Massachusetts -- https://www.mass.gov/ -- officially the Commonwealth of Massachusetts, is the most populous state in the New England region of the Northeastern United States.[BN] The Plaintiff is represented by: Harold Lichten, Esq. Matthew D. Patton, Esq. LICHTEN AND LISS-RIORDAN P.C. 729 Boylston St., Suite 2000 Boston, MA 02116 CONSUMER REPORTS: Bid to Dismiss Wallen's First Amended Suit OK'd ----------------------------------------------------------------- In the case, JAMES WALLEN, ROYCE LADER, RITA FAHRNER, LEEANN BIDDIX, FRANK HIGHSMITH, JERRY HILL, HELEN KASSAMANIAN, and ERNEST BRANIGH, individually and on behalf of all others similarly situated, Plaintiffs v. CONSUMER REPORTS, INC., Defendant, Case No. 21 CV 8624 (VB) (S.D.N.Y.), Judge Vincent L. Briccetti of the U.S. District Court for the Southern District of New York grants the Defendant's motion to dismiss the first amended complaint. The Plaintiffs bring the putative class action against the Defendant, arising out of the Defendant's practice of renting or exchanging data about its subscribers to third parties for profit, including subscribers' names, titles of publications subscribed to, and home addresses. They claim this practice misappropriates subscribers' names, identities, or likenesses in violation of the right of publicity statutes of Alabama, California, Hawaii, Indiana, Nevada, Ohio, and Washington (together, the "Misappropriation Statutes"). The Plaintiffs are residents of Alabama, California, Hawaii, Indiana, Nevada, Ohio, and Washington and subscribers to the Defendant's Consumer Reports magazines. They allege the Defendant provides information about subscribers, including their names, titles of publications subscribed to, and home addresses, to other companies that aggregate this information with data about the subscribers from other sources, such as sex, age, race, and political party. The aggregated data is then returned to defendant (the "Subscriber Lists"), which the Defendant sells, licenses, exchanges, or rents to third parties for a "significant" profit. The Defendant allegedly does not seek its subscribers' consent before providing their names and identities on the Subscriber Lists; thus, "customers remain unaware their identities are being" disclosed. Now pending is the Defendant's motion to dismiss the first amended complaint. First, the Defendant argues the alleged disclosure of the Subscriber Lists is not a prohibited commercial use under the Misappropriation Statutes. Judge Briccetti agrees. He says each of the Misappropriation Statutes prohibits certain commercial uses of names or likenesses on or in a product, without consent. Thus, the Plaintiffs have not stated a claim for relief under any of the Misappropriation Statutes. The Defendant then advances four reasons why its alleged disclosures are not a proscribed commercial use under the Misappropriation Statutes: (i) the subscribers' names are not used to sell, endorse, or draw attention to anything; (ii) the subscribers' names were not used "on or in" a product that is separate or distinct from the names themselves; (iii) selling the Subscriber Lists does not infringe on plaintiffs' property rights in their identities; and (iv) the names were never used publicly. Although he finds the Defendant's first three arguments unpersuasive, Judge Briccetti agrees that the Plaintiffs have not plausibly alleged their names were publicly used, as required by each Misappropriation Statute at issue; thus, their claims must be dismissed. He finds that (i) the Plaintiffs' allegations fit within the plain meaning of the Misappropriation Statutes in that their names appear on or in a product sold by the Defendant; (ii) including the Plaintiffs' names on the Subscriber Lists is enough under the Misappropriation Statute; (iii) the Plaintiffs plausibly allege the infringement of property rights in their identities, which are protected by the Misappropriation Statutes; and (iv) private disclosure only to the third parties who purchase the Subscriber Lists as publicity would transform the Misappropriation Statutes into sweeping data privacy laws. Drawing all reasonable inferences in the Plaintiffs' favor, Judge Briccetti finds that Plaintiffs have not plausibly alleged the Subscriber Lists publicly used their names and information. Accordingly, he grants the motion to dismiss and dismissed the Plaintiffs' claims. The Clerk is instructed terminate the motion (Doc. #28) and close the case. A full-text copy of the Court's Dec. 9, 2022 Order is available at https://tinyurl.com/42yhwx5y from Leagle.com. CVS PHARMACY INC: Krivca Sues Over False and Misleading Labeling ---------------------------------------------------------------- Erzen Krivca, individually and on behalf of all others similarly situated v. CVS Pharmacy, Inc., Case No. 1:22-cv-10468 (S.D.N.Y., Dec. 12, 2022), is brought seeking damages and an injunction to stop the Defendant's false and misleading labeling practices with regard to its toothpaste promoted as "Fluoride Free" and "Antiplaque & Whitening" that is "Certified Natural" under the CVS Health brand ("Product"). Based on the statements, "Fluoride Free" and "Antiplaque," consumers like the Plaintiff expected the Product would contain fluoride alternative ingredients to remove or reduce plaque to affect gingivitis. While the ingredients do not include fluoride, they do not contain any comparable active ingredients which remove or reduce plaque, thereby preventing gingivitis, by non-mechanical means. Though the first ingredient, dicalcium phosphate dihydrate, has been shown to reduce supragingival plaque and gingivitis more significantly than when brushing only with water, this was due to its function as an abrasive to assist plaque removal. The FDA has concluded that dicalcium phosphate dihydrate is not effective for use as an antigingivitis agent because there is no evidence that it chemically interferes with plaque formation or removal. The eighth ingredient, sodium bicarbonate, has been shown to exert an antibacterial action on several oral microorganisms, but only in high dosages and with extended exposure time. When used in toothpaste, sodium bicarbonate is not effective at reducing plaque or gingivitis. Consumers buying the Product expect it will contain non-fluoride ingredients that have a therapeutically significant effect in reducing plaque and acting against gingivitis. While the label is permitted to describe the Product's antiplaque ability, related to its abrasive ingredient, the "fluoride free" claim tells consumers that its antiplaque qualities will be based on fluoride alternatives, when this is false. The Product's ingredients are not capable of achieving a clinically significant reduction in gingivitis. Consumers are misled to expect not only will the Product be "antiplaque," but that it will effect gingivitis when this is false. The Product is promoted as "Certified Natural" by the Natural Products Association ("NPA"), whose standard requires "The Product must be made up of 95 percent truly natural ingredients or ingredients that are derived from natural sources, excluding water." The representation that the Product is "natural" is misleading. Consumers understand the front label statement of "Certified Natural" to mean all the ingredients are natural. Only if they turn around the package will they see the NPA definition that is inconsistent with their expectations. This is because it allows for five percent non-natural ingredients and considers ingredients derived from natural sources as natural. Consumers expect that natural ingredients will not just be derived from natural sources, but subject to minimal processing. The front label picture of peppermint is misleading because the ingredient list does not indicate peppermint oil or peppermint extract. To the extent the Product contains any peppermint, the amount is de minimis or negligible as part of the "Flavor" ingredient. The Product contains other representations and omissions which are false and misleading. As a result of the false and misleading representations, the Product is sold at a premium price, approximately no less than $4.99 for 5.5 oz, excluding tax and sales, says the complaint. The Plaintiff purchased the Product at CVS locations in New York City. CVS Pharmacy, Inc. manufactures, labels and sells toothpaste.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck NY 11021 Phone: (516) 268-7080 Email: spencer@spencersheehan.com D'ADDARIO & COMPANY: Tenzer-Fuchs Files ADA Suit in E.D. New York ----------------------------------------------------------------- A class action lawsuit has been filed against D'addario & Company, Inc. The case is styled as Michelle Tenzer-Fuchs, on behalf of herself and all others similarly situated v. D'addario & Company, Inc., Case No. 2:22-cv-07490 (E.D.N.Y., Dec. 9, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. D'Addario -- https://www.daddario.com/ -- is a family-owned and operated American multinational company that specializes in musical instrument accessories headquartered in Farmingdale, Long Island, New York.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. SHALOM LAW, PLLC 105-13 Metropolitan Avenue Forest Hills, NY 11375 Phone: (718) 971-9474 Email: jonathan@shalomlawny.com DARON WORLDWIDE: Fagnani Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Daron Worldwide Trading, Inc. The case is styled as Mykayla Fagnani, on behalf of herself and all other persons similarly situated v. Daron Worldwide Trading, Inc., Case No. 1:22-cv-10463 (S.D.N.Y., Dec. 9, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Daron Worldwide Trading, Inc. -- https://www.daronwwt.com/ -- is America's largest source of aviation related collectibles and transportation themed toys.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal DELAWARE: Court Denies Bid Class Certification in Crichlow Suit --------------------------------------------------------------- In the case, KENIO CRICHLOW, Plaintiff v. DELAWARE DEPARTMENT OF CORRECTION, et al., Defendants, Civil Action No. 22-272-RGA (D. Del.), Judge Richard G. Andrews of the U.S. District Court for the District of Delaware: a. denies Crichlow's request for counsel without prejudice to renew; and b. denies Crichlow's motion for class certification. Crichlow requests counsel on the grounds that he is unable to afford counsel, he has been unsuccessful in his attempts to retain pro bono counsel, the case is complex, he has filed a motion for class certification, he has limited access to legal materials and no ability to investigate, the case will require discovery and expert medical testimony, and he is hampered by medical problems arising from his contraction of COVID-19 in April 2020. Judge Andrews states that a pro se litigant proceeding in forma pauperis has no constitutional or statutory right to representation by counsel. However, representation by counsel may be appropriate under certain circumstances, after a finding that a plaintiff's claim has arguable merit in fact and law. After passing this threshold inquiry, courts should consider a number of factors when assessing a request for counsel. The factors to be considered by a court in deciding whether to request a lawyer to represent an indigent plaintiff include: (1) the merits of the plaintiff's claim; (2) the plaintiff's ability to present his or her case considering his or her education, literacy, experience, and the restraints placed upon him or her by incarceration; (3) the complexity of the legal issues; (4) the degree to which factual investigation is required and the plaintiff's ability to pursue such investigation; (5) the plaintiff's capacity to retain counsel on his or her own behalf; and (6) the degree to which the case turns on credibility determinations or expert testimony. Assuming, solely for the purpose of deciding this motion, that Crichlow's claims have merit in fact and law, Judge Andrews finds that several of the Tabron factors militate against granting his request for counsel at this time. Based on his review of the complaint, which centers on a two block march by 21 inmates, who had tested positive for COVID-19, in the pouring rain on April 30, 2020, the case is not complex, and Crichlow appears to have the ability to present his claims. In addition, he says the case is in its very early stages. As noted, Crichlow alleges that he was among a group of 21 inmates who were forced in April 2020 to walk in the rain after testing positive for COVID-19. In his motion, Crichlow seeks to certify a "class composed of 21 inmates who currently or were required to walk a distance of about two blocks in drenching rain pushing carts containing their personals," after testing positive for COVID-19, with many being severely ill. Four prerequisites must be met to obtain certification of a class: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Judge Andrews concludes that joinder would not be impracticable, noting in particular that judicial economy and Crichlow's 20 fellow inmates' ability and motivation to litigate as joined plaintiffs would not be impediments, that there is little to no geographic dispersion of the inmates, that there is no need to identify future claimants, and that Crichlow's complaint seeks damages in addition to injunctive relief. Furthermore, regarding the fourth and final prerequisite for certifying a class, adequacy of representation, Judge Andrews notes that Crichlow is an incarcerated individual and he appears pro se. Crichlow may not represent other Plaintiffs or proceed as the class representative. He denies Andrews' request for counsel. Inasmuch as Crichlow proceeds pro se, he concludes that class certification is inappropriate for this additional reason. A full-text copy of the Court's Dec. 9, 2022 Memorandum Order is available at https://tinyurl.com/yc2bezr9 from Leagle.com. DEMERT BRANDS: Evans Files Suit in N.D. Illinois ------------------------------------------------ A class action lawsuit has been filed against DeMert Brands, LLC. The case is styled as Emily Evans, individually and on behalf of all others similarly situated v. DeMert Brands, LLC, Case No. 1:22-cv-06300 (N.D. Ill., Nov. 10, 2022). The nature of suit is stated as Other Fraud. DeMert Brands, Inc. -- https://www.demertbrands.com/ -- manufactures and distributes cosmetic products. The Company provides beauty and cosmetic products for men and women.[BN] The Plaintiff is represented by: Carl V. Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 111 W. Jackson Blvd., Suite 2122, Ste. 1700 Chicago, IL 60604 Phone: (312) 984-0000 Fax: (212) 686-0114 Email: malmstrom@whafh.com DOWNER EDI: Class Action Lawyers Mull Suit Following Stock Plunge ----------------------------------------------------------------- Jenny Wiggins, writing for Australian Financial Review, reports that class action lawyers are investigating whether they can pursue cases against Downer EDI after the contractor's stock plummeted following revelations of accounting discrepancies and a profit warning. Slater and Gordon class actions associate Eleanor Toohey said Downer's disclosure that pre-tax earnings had been overstated by $30 million to $40 million was concerning for shareholders, who were "entitled to assume that a public company's financial statements are accurate." "Slater and Gordon is considering whether Downer EDI's conduct gives rise to an actionable case on behalf of investors and will continue to monitor developments closely," Ms. Toohey said. Maurice Blackburn said it was also reviewing developments linked to Downer's announcement, which included the company cutting its full-year profits guidance. "While those efforts are at an early stage, this includes investigating whether those impacted may be entitled to compensation," a spokeswoman for Maurice Blackburn Lawyers said. A third law firm said it was analysing the fall in Downer's share price and examining how the accounting irregularities were related to the company's earnings downgrade. Downer's biggest investors in the most recent financial year were Aware Super, which held 6.5 per cent of the company as of June 30, and Tyndall Asset Management, which held a similar amount. Both Aware Super and Tyndall declined to comment. Downer did not reveal its accounting issues immediately after discovering them a week ago because the information it was given was "insufficiently definite," the company has told the Australian Securities Exchange. The services group's share price tumbled almost 25 per cent on Dec. 8 and Dec. 9 after it revealed on Dec. 8 that pre-tax earnings had been overstated over the past four financial years due to misreporting of revenues and work-in-progress (which reflects the costs of completing a contract.) Downer's shares rebounded only slightly on Dec. 12, rising 1¢ to close at $3.71. Downer's senior management team was informed on the evening of Monday December 5 that the company's utilities business was carrying an amount of work in progress (WIP) on a particular contract that had "likely been overstated," the company told the ASX in response to questions about its share price plunge. But at the time, the information was "confidential, comprised supposition, and was insufficiently definite," Downer said. The amount of overstated WIP was "difficult to assess" on work orders that were not yet completed and the company needed to investigate the reasons for and extent of any overstatement, Downer said. Downer did detailed investigations on Dec. 6 and Dec. 7, and on Dec. 7 also analysed its trading results for October and November and forecast for December. "As a result of this investigation and analysis, after the close of the market on Wednesday, 7 December 2022 and based on the information currently available, it was concluded that there were accounting irregularities in Downer's Australian utilities business of the kind described in the announcement and a need to give the trading update contained in the announcement," Downer said. The company is doing a detailed internal investigation with the support of an external accounting specialist, including examining whether there was any fraud. Downer has diversified away from big construction projects in recent years to focus on more stable urban services contracts, which require the company to invest less capital and provide more reliable revenue streams. But on Dec. 8, Downer cut its full-year earnings guidance for underlying net profit after tax and amortisation to between $210 million and $230 million, blaming "difficult weather conditions and elevated cost to serve issues". The guidance includes an $8 million to $10 million impact from the accounting issues in the current financial year, but does not include the financial impact of the irregularities in previous years. [GN] ECCO RETAIL: Amort Suit Remanded to San Mateo Superior Court ------------------------------------------------------------ In the case, WILLIAM M. AMORT, Plaintiff v. ECCO RETAIL, LLC, et al., Defendants, Case No. 22-cv-05812-DMR (N.D. Cal.), Judge Donna M. Ryu of the U.S. District Court for the Northern District of California grants the Plaintiff's motion to remand to the Superior Court of the State of California for the County of San Mateo. Amort filed the putative wage and hour class action in San Mateo County Superior Court against ECCO Retail; ECCO USA, Inc.; and ECCO. The Defendants subsequently removed the case to federal court, invoking the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. Section 1332(d). The Plaintiff now moves to remand. The Defendants move pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) to dismiss the complaint. The Plaintiff filed the class action in San Mateo County Superior Court on July 27, 2022, alleging violations of the California Labor Code. He seeks damages for unpaid compensation, statutory penalties, and injunctive relief, among other forms of relief, on behalf of a putative class of the Defendants' current and former non-exempt employees in California. The Plaintiff defines the putative class as follows: "all California citizens currently or formerly employed by the Defendants as non-exempt employees in the State of California at any time between Jan. 23, 2018 and the date of class certification." He also defines a "Waiting Time Subclass" as "all members of the Class who separated their employment with Defendant at any time between Jan. 23, 2019 and the date of class certification." The Plaintiff asserts nine claims for relief: (1) failure to pay minimum wage in violation of California Labor Code sections 1194, 1194.2, and 1197; 2) failure to pay overtime in violation of Labor Code sections 510, 1194, and 1198; (3) failure to provide meal periods in violation of Labor Code sections 226.7 and 512; (4) failure to permit rest breaks in violation of Labor Code section 226.7; (5) failure to reimburse for business expenses in violation of Labor Code sections 2800 and 2802; (6) failure to provide accurate and itemized wage statements in violation of Labor Code section 226(a); (7) failure to timely pay wages in violation of Labor Code sections 204 and 210; (8) failure to pay all wages due at termination in violation of Labor Code sections 201, 202, and 203; and (9) violation of California Business and Professions Code sections 17200 et seq. The Defendants timely removed the complaint, invoking the CAFA jurisdiction. In support of removal, it submitted a declaration by Stacy Holtzclaw. Holtzclaw is ECCO Retail's Human Resources Manager - Retail Division. Holtzclaw made certain assertions about the size of the putative class, the average regular rate of pay for non-exempt employees in California during the relevant time period, and the number of workweeks and pay periods during the relevant time period. Based on this evidence, the Defendants originally estimated that the value of certain class claims is at least $7,001,708.60, which exceeds the $5 million jurisdictional minimum under CAFA. The Plaintiff moves to remand the action, arguing that the Defendant has failed to establish that the amount in controversy exceeds the $5,000,000 jurisdictional minimum. The Defendants move pursuant to Rules 12(b)(2) and 12(b)(6) to dismiss the complaint. Judge Ryu concludes that the Defendants have not supported their estimates of the amounts in controversy pertaining to the meal period and rest break claims or the waiting time penalties claim. Moreover, the parties agree that the amount in controversy for attorneys' fees is 25% of the overall claimed amount in controversy. Therefore, the Defendants have established only the following amounts: unpaid minimum wages and liquidated damages of $716,134 and wage statement penalties of $906,150, for a total of $1,622,284. An award of attorneys' fees equivalent to 25% of the supported amount in controversy (25% of $1,622,284) equals $405,571, for a total supported amount in controversy of $2,027,855, which is far short of the $5 million threshold required by CAFA. As the Defendants have failed to prove by a preponderance of the evidence that the amount in controversy exceeds $5 million, the Court lacks jurisdiction over this case under CAFA. Judge Ryu grants the Plaintiff's motion to remand and denies as moot the Defendants' motion to dismiss. The case is remanded to San Mateo County Superior Court. A full-text copy of the Court's Dec. 9, 2022 Order is available at https://tinyurl.com/ye9jc8da from Leagle.com. EPIC GAMES: Fortnite Video Game Addictive for Children, Suit Claims ------------------------------------------------------------------- Stephen Fenech, writing for TechGuide, reports that Epic Games, the company behind the wildly successful Fortnite game, is being sued in the Canadian Supreme Court by group of parents who say the game is too addictive for their children. Justice Sylvain Lussier has agreed to allow the class action to proceed after hearing from three parents who described their children's symptoms of dependence after they played the game. "The court concludes that there is a serious issue to be argued, supported by sufficient and specific allegations as to the existence of risks or even dangers arising from the use of Fortnite," the judge ruled. The judge also said the action "does not appear frivolous or manifestly ill-founded". There are more than 250 million registered users playing Fortnite around the world since its release in 2017 and it is rated as suitable for teenage players. One of the parents involved in the suit said their son had played 6,923 games and became enraged when his parents tried to restrict his screen time. Another child reportedly played more than 7,700 times in two years for a minimum of three hours a day. Both children were reported to now have behavioural issues. The lawsuit is alleging Epic Games deliberately designed Fortnite to create a dependency among users to continue to play but without providing warnings about the risks of addiction. Epic Games legal representatives said the evidence provided by parents was insufficient while also pointing out that video game dependence is not a condition recognised in Quebec where the matter is being heard. The American Psychiatric Association also says there is insufficient evidence to put this in the same category as a mental disorder. According to CTV News, attorney Alessandra Esposito Chartrand says Epic games created Fortnite after years of development and even hired psychologists to make the game as addictive as possible. "These games are created with algorithms and dark patterns that are made to addict you," she said. "And once the pattern starts it's very, very, very hard to get out of it." "There's something about Fortnite that is completely unique. There are no other games that have therapy centres dedicated to players of that game." The World Health Organisation has recognised video game addiction as a mental health disorder. Epic Games has vowed to fight the lawsuit in court and said in a statement: "We have industry leading parental controls that empower parents to supervise their child's digital experience." [GN] EQUIFAX CANADA: Hoskin & Harcourt Discusses Data Breach Suit Ruling ------------------------------------------------------------------- Robert Carson and Simon Cameron, Esq., of Osler, Hoskin & Harcourt LLP, in an article for Mondaq, report that in 2021, the law firm reported that courts across the country exercised their gatekeeping role to bring an end to data breach class actions that lacked evidence of harm to the proposed class members. Ontario courts also confirmed significant limitations on the intrusion upon seclusion tort, holding that it does not apply where a defendant merely failed to prevent a hacking incident. In 2022, in a significant victory for "database defendants," the Court of Appeal for Ontario upheld this reasoning. Many plaintiffs' lawyers now appear to be shifting their focus, at least in part, away from traditional data breach claims. Common allegations in new class action filings ranged from misuse of information to a lack of protections for children and teenagers who use online services. Canadian courts are also continuing to consider and grapple with potential new privacy torts. The Court's decision is a significant vindication of the rights of database defendants. Wither intrusion upon seclusion? In 2021, the Ontario Divisional Court decided in Owsianik v. Equifax Canada Co. (Owsianik) that the tort of intrusion upon seclusion was not available in data breach cases where the information at issue was hacked by a malicious third party and the defendant merely failed to prevent the intrusion. In November 2022, the Court of Appeal for Ontario decided the appeals in Owsianik and other cases involving the tort. The Court's decision is a significant vindication of the rights of database defendants. It is also an important articulation of the limits of the tort of intrusion upon seclusion and any other novel privacy torts. The Court reasoned that there are three components to the tort of intrusion upon seclusion. First there is a conduct component, which requires the defendant to have invaded or intruded upon the plaintiff's private affairs or concerns without lawful excuse. Second, there is a state of mind requirement, which stipulates that the intrusion must have been done intentionally or recklessly. Finally, there must be consequences from the intrusion. This requires that a reasonable person would regard the intrusion as highly offensive, causing distress, humiliation or anguish. The Court found that, where information in the possession of a database defendant is accessed by a third-party hacker, the conduct component of the tort is not fulfilled for the database defendant as the database defendant cannot be said to have "invaded or intruded." The decision is a notable victory for defendants. The plaintiffs had argued that the tort of intrusion upon seclusion was necessary for privacy class actions because "the remedies available in contract and negligence require proof of pecuniary loss." The Court expressly rejected this logic, holding that "[it] is true that the inability to claim moral damages may have a negative impact on the plaintiffs' ability to certify the claim as a class proceeding. In my view, that procedural consequence does not constitute the absence of a remedy. Procedural advantages are not remedies." Earlier this year – before the release of the Owsianik decision – several courts had grappled with the nature and limits of the tort of intrusion upon seclusion. For example, in Stewart v. Demme, the Ontario Divisional Court overturned an earlier decision certifying a class proceeding based on the tort of intrusion upon seclusion. The Divisional Court held that the case should not have been certified where a hospital employee had only "fleeting and incidental" access to health information in the course of another allegedly wrongful act. In a separate decision, the Court of Appeal for Ontario rejected the same employee's appeal from a denial of insurance coverage. In so doing, the Court found that the insurance policy's intentional act exclusion applied to the claims that the employee had committed the tort of intrusion upon seclusion. The Court found that the exclusion applied regardless of whether the pleading was of an "intentional" or "intentional or reckless" intrusion. In Campbell v. Capital One Financial Corporation, the B.C. Supreme Court certified a class action arising from a data breach. Despite certifying the action, the court declined the plaintiff's request to revisit B.C. jurisprudence that held that the tort of intrusion upon seclusion had been ousted by the provincial Privacy Act. We previously reported on the parallel Ontario action, which was dismissed. In Sweet v. Canada, the Federal Court certified a privacy class action brought against the Government of Canada by taxpayers whose CRA MyAccount pages were accessed in attacks by a third party. The Federal Court found that the plaintiffs' allegations of recklessness in that case were sufficient to certify an intrusion upon seclusion claim, finding the application of the tort to database defendants was not "bound to fail." Employer vicarious liability Class actions in which the plaintiffs allege that an employer-defendant is liable for the wrongdoing of an employee are becoming increasingly common. These cases may become even more prominent given the Ontario jurisprudence limiting the application of the tort of intrusion upon seclusion. For example, in Ari v. ICBC, the B.C. Supreme Court granted summary judgment on certain certified legal issues in a factually remarkable privacy class action. The defendant, the Insurance Company of British Columbia (ICBC), operates B.C.'s public vehicle insurance scheme. The ICBC had employed an adjuster who, for pay, looked up and provided address information associated with licence plates provided by a third party. Unbeknownst to the adjuster, the third party was acting on behalf of a fourth party who had a drug-induced paranoid belief that he was being targeted by the Justice Institute of British Columbia and had observed the licence plate numbers in the Justice Institute parking lot. The fourth party subsequently carried out arson and shooting attacks on certain of the addresses. He was sentenced to a substantial prison term. This interesting fact pattern resulted in a class action proceeding against the ICBC. In its decision, the B.C. Supreme Court found that the plaintiff had established that the adjuster had breached the Privacy Act. The Court also found that, although the ICBC itself was innocent, it was vicariously responsible for the adjuster's misconduct because her conduct fell within an area of risk that was created by the ICBC's collection of information. The Court further rejected the ICBC's argument that the attacks by the fourth party were unforeseeable or a novus actus interveniens. The certification requirement of 'some basis in fact' remains a meaningful hurdle in privacy class actions Courts across the country continue to confirm that plaintiffs in privacy actions cannot obtain certification without evidence that the proposed class was actually affected by the alleged breach of privacy. Two examples involve claims against Facebook, Inc. In the first case, Simpson v. Facebook, Inc., the plaintiff alleged that a third party named Cambridge Analytica had obtained information about Facebook users from a third-party application developer. The Ontario Superior Court of Justice dismissed the plaintiff's certification motion on the basis that there was no evidence that any Canadian user data was shared with Cambridge Analytica. As a result, there was no justification for a class proceeding. In upholding this decision on appeal, the Divisional Court emphasized that the plaintiffs bore an evidentiary burden to show "that a common issue exists beyond a bare assertion in the pleadings." Osler defended Facebook in this action. In Chow v. Facebook, Inc., the B.C. Supreme Court declined to certify a case in which the plaintiffs alleged that Facebook misused call and text log data from users of its Messenger application on Android phones. The Court found that plaintiffs had failed to establish any basis in fact for their allegations that Facebook "collected, used, retained and commercialized call and text data and profited from that collection at users' expense." Absent a basis for the allegations there was similarly no justification for a class proceeding. Osler also defended Facebook in this action. A pivot away from data breach claims We have previously reported that plaintiffs are increasingly bringing class actions alleging that the defendants misused or improperly collected data, rather than claims that they were victims of a data breach. Numerous misuse of data cases were commenced in 2022. These include a series of class actions alleging improper sharing of information regarding new mothers by the provincial governments. We also saw a number of prominent data-misuse settlements in 2022, including settlements concerning the allegedly improper collection and use of geolocation information. The Owsianik decision will likely contribute to this trend. Conclusion Despite the proliferation of privacy class action filings, courts across Canada continue to make it clear that certification is not a rubber stamp and that it will not automatically follow from a data breach or incident. Courts expect plaintiffs to show that they were actually affected by the incident. While it remains critical for businesses to respond quickly and effectively when data incidents occur, defendants have a variety of tools to defend privacy claims or to resolve them early on. It can be valuable to seek early advice on how best to implement such tools in circumstances where there is a risk of a class action or where a claim is commenced. [GN] ETHEREUMMAX: Judge Tosses Fraud Class Suit Involving Celebrities ---------------------------------------------------------------- Brayden Lindrea, writing for Coin Telegraph, reports that a federal judge in California has dismissed a class action lawsuit against reality TV star Kim Kardashian, boxing champ Floyd Mayweather and the founders of EthereumMax, explaining that the submissions failed to meet the "heightened pleading standards" for fraud claims. The judge has, however, left room for the plaintiffs to refile the lawsuit if certain provisions are amended. In the original Jan. 7 court filing by Scott+Scott Attorneys At Law, the plaintiffs argued that Kardashian, Mayweather and former NBA superstar Paul Pierce didn't disclose they were being paid to promote EthereumMax (EMAX). The plaintiffs alleged that they used "false or misleading statements" to "artificially inflate the price of the token." Kardashian promoted EMAX in a June 2021 post on Instagram, while Mayweather wore the EMAX logo on his boxing trunks in a match against YouTube star Logan Paul that same month. According to reports, Judge Michael Fitzgerald dismissed the lawsuit Dec. 7 on the grounds that the fraud allegations lacked merit and that investors at the end of the day have a responsibility to conduct due diligence on their investments: "But, while the law certainly places limits on those advertisers, it also expects investors to act reasonably before basing their bets on the zeitgeist of the moment." However, Judge Fitzgerald acknowledged in his dismissal the power that celebrities have been afforded by new technologies and social media platforms in establishing potentially fraudulent promotional schemes. "This action demonstrates that just about anyone with the technical skills and/or connections can mint a new currency and create their own digital market overnight," Fitzgerald reportedly wrote in his dismissal. Celebrities now have the ability to "readily persuade millions of undiscerning followers to buy snake oil with unprecedented ease and reach," he added. Despite the dismissal, the investors' fight may not be over. Fitzgerald reportedly stated that he'd allow the plaintiffs to refile the lawsuit if their legal team amended a few provisions from its original filing, with the judge making reference to a provision of the Racketeer Influenced and Corrupt Organizations Act (RICO). Kardashian has already been bitten once before over her promotion of EthereumMax on her social media account. On Oct. 3, Kardashian reached a $1.26 million settlement with the U.S. Securities Exchange Commission after allegedly failing to disclose she was paid $250,000 to promote EthereumMax. Mayweather's legal team has long denied any affiliation with the EthereumMax, with his attorneys stating that the filing did not "identify a single statement made by Mayweather about eMax tokens or EthereumMax." [GN] EXTENDED STAY AMERICA: Brittian Sues Over Denied Refund ------------------------------------------------------- Latreass ("Lisa") Brittian, individually, and on behalf of all others similarly situated v. EXTENDED STAY AMERICA, INC.; ESA MANAGEMENT, LLC; EXTENDED STAY AMERICA SUITES – TWC NORCROSS LLC; THREE WALL CAPITAL, LLC; and AIMBRIDGE HOSPITALITY, LLC, Case No. 3:22-cv-00663-MOC-DCK (W.D.N.C., Dec. 12, 2022), is brought of similarly situated individuals who prepaid for a reservation at an Extended Stay America hotel, were denied accommodation in the prepaid hotel room, and whose prepayment was not refunded. Extended Stay America guests have the option of guaranteeing a room with a credit card or prepaying for a reservation. If a guest guarantees a room with a credit card, the reservation is cancelable up until 6 pm of the first night of the reservation. Prepaid reservations are nonrefundable. Extended Stay America hotels utilize a central reservation system. The central reservation system automatically deems a reservation a "no show" and cancels the reservation if a guest who has not canceled the reservation by 6 pm is not checked in on the first day of the reservation. If the reservation was guaranteed by a credit card, the credit card is charged a no-show fee of one night's stay. If a guest who has prepaid for a reservation is not checked in on the first day of their prepaid reservation, the reservation system also automatically deems the prepaid reservation a no-show and cancels the reservation. If the guest attempts to check-in to their prepaid hotel room after the reservation system has automatically deemed their reservation a no-show and cancelled the reservation, the guest is denied accommodation at the hotel. Since the prepaid reservation is also nonrefundable, the guest is not refunded the prepaid amount. Similarly, if the guest is already staying at the hotel and extends their stay by prepaying for another reservation but is not checked-in to the prepaid reservation in the reservation system on the first day of the prepaid reservation, the reservation system automatically deems the reservation a no show and cancels the reservation. The guest is asked to vacate the room and is denied a refund because the prepaid reservation is nonrefundable. The Plaintiff extended her stay by prepaying $1,777.50 for a second reservation from January 11, 2022 through February 8, 2022. The Plaintiff was designated a "no show" for her second reservation by the ESA computer system, was told her reservation could not be accommodated because she was a "no show" and was told to vacate the hotel room. Although the Extended Stay America hotel denied the Plaintiff accommodation at the hotel, the Extended Stay Hotel retained the Plaintiff's prepaid lodging fee of $1,777.50 and refused to refund the prepaid reservation, says the complaint. The Plaintiff was a guest at the Extended Stay America hotel located in Norcross, Georgia from December 14, 2021 through January 11, 2022. Extended Stay America is the largest integrated owner/operator of company-branded hotels in North America.[BN] The Plaintiff is represented by: Scott C. Harris, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 900 W. Morgan Street Raleigh, NC 27603 Phone: (919) 600-5000 Facsimile: (919)600-5035 Email: sharris@milberg.com - and - James M. Evangelista, Esq. Kristi Stahnke McGregor, Esq. EVANGELISTA WORLEY, LLC 500 Sugar Mill Road, Suite 245A Atlanta, GA 30350 Phone: (404) 205-8400 Facsimile: (404) 205-8395 Email: jim@ewlawllc.com kristi@ewlawllc.com FAIRFIELD COLLECTIBLES: Fagnani Files ADA Suit in S.D. New York --------------------------------------------------------------- A class action lawsuit has been filed against Fairfield Collectibles Of Georgia, LLC. The case is styled as Mykayla Fagnani, on behalf of herself and all other persons similarly situated v. Fairfield Collectibles Of Georgia, LLC, Case No. 1:22-cv-10464 (S.D.N.Y., Dec. 9, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Fairfield Collectibles Of Georgia -- https://fairfieldcollectibles.com/ -- offers 1000s of diecast model cars & diecast trucks.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal FAMILY PRACTICE: Roberts Files Suit in N.D. Illinois ---------------------------------------------------- A class action lawsuit has been filed against Family Practice Center, PC. The case is styled as Mark Roberts, individually and on behalf of all others similarly situated v. Family Practice Center, PC, Case No. 4:22-cv-01804-MWB (N.D. Ill., Nov. 10, 2022). The nature of suit is stated as Other P.I. for Data Breach. Family Practice Center, PC -- https://www.fpcdoctors.com/ -- is a large group of primary care physicians in Central Pennsylvania.[BN] The Plaintiff is represented by: Alex J. Dravillas, Esq. Seth A Meyer, Esq. KELLER POSTMAN LLC 150 N. Riverside, Suite 4100 Chicago, IL 60606 Phone: (312) 741-5220 Email: sam@kellerlenkner.com - and - Andrew White, Esq. Todd S. Garber, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP One North Broadway, Suite 900 White Plains, NY 10601 Phone: (914) 298-3281 Email: tgarber@fbfglaw.com - and - James Barry, Esq. Joshua M. Neuman, Esq. POGUST GOODHEAD, LLC 161 Washington Street Suite 250 Conshohocken, PA 19428 Phone: (610) 941-4204 Fax: (610) 941-4245 Email: jneuman@pogustgoodhead.com FAMILY SOLUTIONS: Bid to Decertify Class in Stephenson Suit Denied ------------------------------------------------------------------ In the case, Jamal Stephenson, et al., On behalf of himself and All others similarly situated, Plaintiffs v. Family Solutions of Ohio, Inc., et al., Defendants, Case No. 1:18cv2017 (N.D. Ohio), Judge Pamela A. Barker of the U.S. District Court for the Northern District of Ohio denies Defendants Family Solutions of Ohio, Inc., Prostar Management, Inc., John Hopkins, and Dawn Smith's Motion to Decertify the Class Conditionally Certified under 29 U.S.C. Section 216(b). Family Solutions is a non-profit organization that provides mental and behavioral healthcare services for children and families throughout Ohio. Smith was highly involved in the development of Family Solutions and currently serves as its Vice President of Strategic Planning and Program Management. During the Class Period, Family Solutions had locations in Cleveland, Bedford Heights, Lorain, Columbus, and Cincinnati. At each location, it employs a Program Director or Assistant Program Director, as well as a Clinical Supervisor. Each site's Clinical Supervisor is the direct supervisor of certain employees based out of that particular site. Qualified Mental Health Specialists ("QMHSs") are one of the categories of employees at Family Solutions that work with patients in the field. (Decl. of Dawn Smith dated Aug. 31, 2020. The parties dispute the precise scope and nature of the QMHSs' job duties. However, in general terms, the parties agree that QMHSs provide behavioral health services, including counseling services, to Family Solutions' Medicaid-eligible patients. They also agree that, as part of their duties, QMHSs schedule appointments with clients and visit them at various locations, including in schools and homes. Because they visit clients in the field, virtually all QMHSs travel between clients during the course of the workday. In addition, it is undisputed that QMHSs are required to create progress notes regarding their clients and enter documentation into their client's files using the "ICANotes" electronic medical record system. Representative Plaintiffs Melanie Vilk Baron and Jamal Stephenson were QMHSs. Baron worked in Family Solutions' Cleveland location between Aug. 1, 2016 and Oct. 7, 2016. According to the Defendants, Baron was still in her probationary period at the time she resigned from Family Solutions. Stephenson worked in Family Solutions' Cincinnati location from August 2016 to May 2017. ( Representative Plaintiffs Baron and Stephenson testified that they were paid for whatever time they put on their time sheets. They testified, however, that QMHSs were not paid for certain categories of time for which there was no corresponding Medicaid billing code. Specifically, they testified that they were not paid for time spent (1) traveling between clients; (2) entering documentation into clients' electronic health records; and (3) dealing with no-show appointments. Rose Marie Pryor, Julie Winston, Sereena Creamer, and Valerie White (each of whom were employed as Clinical Supervisors at different Family Solutions office locations) submitted Declarations in this action. Therein, they aver that one of their jobs was to evaluate and approve or deny time logged by QMHSs on billing and time sheets. They each state that, throughout their tenures with Family Solutions, the company had a uniform policy for timekeeping and compensation of hourly QMHSs with respect to time spent writing and reviewing client notes and documentation, on work-related travel, or for waiting and notating files regarding client no-shows. On Sept. 4, 2018, Plaintiff Alicia Arends filed a Complaint in the Court on behalf of herself and all others similarly situated against Defendants Family Solutions of Ohio, Inc., Prostar Management, Inc., John Hopkins, and Dawn Smith. Therein, she asserted that she and the putative class members were employed by the Defendants as QMHSs and that the Defendants had failed to pay them for time worked that was not billable to Medicaid or other health insurance. The Plaintiff alleged the following six claims for relief: (1) violations of the minimum wage and overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 216(b) (Count One); (2) violations of the Ohio Fair Minimum Wage Amendment ("OFMWA"), Ohio Constitution, Art. II, Section 34a (Count Two); (3) violations of Ohio's overtime compensation statute, Ohio Rev. Code Section 4111.03 (Count Three); (4) violations of the OFMWA's record-keeping requirement (Count Four); (5) breach of contract (Count Five); and (6) unjust enrichment (Count Six). The Plaintiff sought conditional certification as a FLSA collective action; certification of the state law claims under Fed. R. Civ. P. 23; compensatory and punitive damages; and attorney fees and costs. Jamal Stephenson subsequently filed an Opt-In and Consent Form. On Feb. 28, 2019, the Plaintiffs filed a Motion for Conditional Certification and Court-Authorized Notice with respect to their FLSA claims. On Sept. 16, 2019, the Court issued a Memorandum Opinion & Order granting the Plaintiffs' Motion for Conditional Certification with respect to all current and former employees who worked as QMHSs between Sept. 16, 2016 and Sept. 16, 2019. On June 2, 2022, the Defendants filed Motions to Decertify the FLSA and Rule 23 Classes and to Exclude the Testimony of Dr. Thompson. The Plaintiffs filed Briefs in Opposition to each of the Defendants' Motions, and Defendants thereafter filed Reply Briefs. Several months later, on Dec. 5, 2022, the Defendants filed a Notice of Supplemental Authority to Support their Motion for Decertify the Rule 23 Class and Request for Supplemental Briefing. The Plaintiffs have been ordered to file a response by no later than Dec. 16, 2022. In a separate Opinion & Order issued this date, the Court denied the Defendants' Motion to Exclude the Testimony of Dr. Thompson. The Defendants argue that the FLSA conditional class should be decertified for several reasons. First, they maintain that the Plaintiffs cannot show that they are similarly situated to the Opt-Ins because "discovery has confirmed that the evidence is highly individualized" with respect to each Opt-Ins' "alleged hours worked, but not paid," as well as Defendants' actual or constructive notice of the same. Second, they assert that they will rely upon individualized defenses, including questioning each Opt-In regarding their time sheets; their training regarding whether they were permitted to report time spent on documentation, intra-day travel, and no-show appointments; and their respective patient visits, patient loads, and travel schedules. Third, they maintain that "judicial fairness dictates decertification" because, if this matter proceeds as a class action, they will need to call all of the Opt-Ins, resulting in "twenty-three separate mini-trials." And, lastly, the Defendants argue that decertification is warranted because, with only 23 members, the FLSA conditional class is "not sufficiently numerous." In response, the Plaintiffs argue substantial evidence demonstrates that the lead Plaintiffs and the Opt-Ins are similarly situated. They maintain that they share a common theory of liability with the Opt-Ins (i.e., that the Defendants improperly failed to pay them for intraday travel, documentation time, and no-shows) and that this is sufficient to defeat decertification under Sixth Circuit precedent. They further assert that, even if there are differences among the individual Opt-ins regarding their travel schedules and patient loads, any such differences would only affect the amount of each Opt-Ins' damages, which is not a basis for decertification. Lastly, the Plaintiffs argue that the Defendants have failed to identify any individual defenses that would defeat certification and, further, that fairness and procedural efficiency dictates that this matter proceed as a collective action. Judge Barker explains that although the FLSA does not provide a definition of what it means for plaintiffs to be similarly situated, courts in the Sixth Circuit look to three "non-exhaustive" factors to determine whether members of the collective action are similarly situated: (1) the "factual and employment settings of the individual[ ] plaintiffs;"(2) "the different defenses to which the plaintiffs may be subject on an individual basis;" and (3) "the degree of fairness and procedural impact of certifying the action as a collective action, citing O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 583 (6th Cir. 2009). Judge Barker opines that each of the three O'Brien factors weigh against decertification of the FLSA Collective Action. Among other things, she finds that (i) the Plaintiffs have sufficiently demonstrated a common theory of one or more FLSA violations and, further, that any differences among the Plaintiffs' factual and employment settings do not outweigh the similarities; (ii) a collective action would allow the Defendants adequate opportunity to defend themselves against the Plaintiffs' FLSA claims; and (iii) the Plaintiffs and the Opt-Ins have come forward with substantial evidence that the Defendants improperly implemented a company-wide policy of failing to pay QMHSs for the three categories of time at issue. Accordingly, and for all the foregoing reasons, Judge Barker denies the Defendants' Motion to Decertify the Class. A full-text copy of the Court's Dec. 9, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/2tt4y675 from Leagle.com. FAMILY SOLUTIONS: Loses Bid to Exclude Testimony in Stephenson Suit ------------------------------------------------------------------- In the case, Jamal Stephenson, et al., On behalf of himself and All others similarly situated, Plaintiffs v. Family Solutions of Ohio, Inc., et al., Defendants, Case No. 1:18cv2017 (N.D. Ohio), Judge Pamela A. Barker of the U.S. District Court for the Northern District of Ohio denies Defendants Family Solutions of Ohio, Inc., Prostar Management, Inc., John Hopkins, and Dawn Smith's Daubert Motion to Exclude the Testimony of Plaintiffs' Expert. On Sept. 4, 2018, Plaintiff Alicia Arends filed a Complaint in the Court on behalf of herself and all others similarly situated against Defendants Family Solutions of Ohio, Inc., Prostar Management, Inc., John Hopkins, and Dawn Smith. Therein, the Plaintiff asserted that she and the putative class members were employed by the Defendants as Qualified Mental Health Specialists ("QMHSs") and that the Defendants had failed to pay them for time worked that was not billable to Medicaid or other health insurance. The Plaintiff alleged the following six claims for relief: (1) violations of the minimum wage and overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 216(b) (Count One); (2) violations of the Ohio Fair Minimum Wage Amendment ("OFMWA"), Ohio Constitution, Art. II, Section 34a (Count Two); (3) violations of Ohio's overtime compensation statute, Ohio Rev. Code Section 4111.03 (Count Three); (4) violations of the OFMWA's record-keeping requirement (Count Four); (5) breach of contract (Count Five); and (6) unjust enrichment (Count Six). She sought conditional certification as a FLSA collective action; certification of the state law claims under Fed. R. Civ. P. 23; compensatory and punitive damages; and attorney fees and costs. (Id.) Jamal Stephenson subsequently filed an Opt-In and Consent Form. On Feb. 28, 2019, the Plaintiffs filed a Motion for Conditional Certification and Court-Authorized Notice with respect to their FLSA claims. Therein, they argued that the Defendants violated the overtime provisions of the FLSA by failing to pay potential class members for documentation time, intra-day travel between clients, and time spent for client appointments and no-shows. On Sept. 16, 2019, the Court issued a Memorandum Opinion & Order granting the Plaintiffs' Motion for Conditional Certification with respect to all current and former employees who worked as QMHSs between Sept. 16, 2016 and Sept. 16, 2019. On May 5, 2020, the Plaintiffs filed an Amended Class and Collective Action Complaint, designating Plaintiffs Stephenson and Baron as the representative plaintiffs. The Amended Complaint raises the same factual and class allegations and asserts the same six grounds for relief set forth in the original Complaint. The Defendants filed an Answer on May 19, 2020. The Plaintiffs then filed their Motion for Rule 23 Class Certification on July 31, 2020 and the Defendants filed Motions for Summary Judgment with respect to all claims asserted by the Plaintiffs Baron and Stephenson on Sept. 1, 2020. Shortly thereafter, on Sept. 30, 2020, the Plaintiffs produced the report of their damages expert, forensic labor economist Shane Thompson, Ph.D. Therein, Dr. Thompson concluded that, between Sept. 4, 2015 and Sept. 29, 2019, 23 Opt-Ins accrued a total of 16,965 hours of unpaid work derived from the following three activities: (1) documentation time in clients' electronic health records, (2) travel time intraday from client to client, and (3) time spent on no-show appointments. Using the hourly rates and unpaid hours specific to each of the 23 Opt-Ins, Dr. Thompson calculated the total value of unpaid wages to be $472,591. On Oct. 7, 2020, Dr. Thompson supplemented his Expert Report based on newly submitted information relating to several Opt-Ins. Therein, he revised his Opinion to find that the 23 Opt-Ins had a total of 18,055.6 hours of unpaid work derived from these same three activities. He calculated the total value of unpaid wages for the 23 Opt-Ins to be $496, 248.27. The Plaintiffs' counsel produced Dr. Thompson's "expert file" to the Defendants on Nov. 23, 2020. Several months later, the Plaintiffs supplemented Dr. Thompson's expert file with 14 Declarations of certain Opt-Ins. The Court conducted a telephonic status conference with lead counsel on Jan. 8, 2021. On March 2, 2021, it issued a Memorandum Opinion & Order in which it denied the Defendants' Motions for Summary Judgment as to the Plaintiff Baron's and Stephenson's FLSA and state law wage-and-hour claims. It denied the Defendants' Motion for Summary Judgment with respect to the issue of damages without prejudice subject to refiling after the close of expert discovery. On April 5, 2021, the Court issued a Memorandum Opinion & Order granting in part and denying in part the Plaintiffs' Motion for Rule 23 Certification of a state law class. It granted the Plaintiffs' Motion to the extent it sought certification of the following Rule 23 class: "All employees who worked in Ohio as QMHSs for Family Solutions during the period three years preceding the commencement of this action to the present." It denied the Plaintiffs' Motion, however, to the extent it included hourly Therapists in the state-law class, and a class-action breach of contract claim. On April 19, 2021, the Defendants filed a Notice of Interlocutory Appeal to the Sixth Circuit from this Court's Rule 23 Certification decision. They thereafter filed, in this Court, a Motion for Certification to File Interlocutory Appeal pursuant to 28 U.S.C. Section 1292(b). They also filed a Motion for Sanctions, arguing that Plaintiffs' failure to provide evidence of damages and timely supplement expert discovery violated Fed. Rules of Civ. Proc. 26 and 33. Lastly, on Feb. 4, 2022, the Defendants filed a Motion to Compel Discovery of Absent Class Members. The Plaintiffs opposed the Defendants' Motions. In a series of Memorandum Opinions & Orders issued in January and February 2022, the Court denied each of the Defendants' Motions. The Sixth Circuit Court of Appeals subsequently denied the Defendants' Petition for Interlocutory Appeal. The Rule 23 Class consists of 178 Class Members. On March 23, 2022, Dr. Thompson supplemented his Expert Report to calculate damages for the Rule 23 Class Members with respect to unpaid work derived from documentation time, travel time, and time spent dealing with no-show appointments from September 2015 to March 18, 2022. On June 2, 2022, the Defendants filed the instant Motion to Exclude the Testimony of Dr. Thompson. The Plaintiffs filed a Brief in Opposition on June 16, 2022, to which the Defendants responded on June 23, 2022. The Defendants argue that Dr. Thompson should not be permitted to testify because his expert opinions do not satisfy the requirements of Fed. R. Evid. 702. While they do not dispute that Dr Thompson is qualified to serve as an expert, they maintain that his testimony should be excluded because he "did not follow a proper method in reaching his opinion" in this particular case. In response, the Plaintiffs emphasize that Dr. Thompson had no choice but to estimate damages in this case because the Defendants failed to keep records of employees' time or to produce certain documents in discovery that would have assisted him in calculating time spent in the three categories at issue. They maintain that Dr. Thompson used reliable principles and methods in calculating damages, both for the 23 Opt-Ins and the 178 Rule 23 Class Members. Judge Barker finds that the Defendants have failed (i) to demonstrate that Dr. Thompson's testimony regarding unpaid hours and wages relating to documentation time is based on mere speculation; (ii) to show that Dr. Thompson's testimony regarding to travel time is inadmissible under Rule 702; and (iii) to demonstrate that Dr. Thompson's expert testimony is not the product of reliable principles and methods, or that he failed to reliably apply those principles and methods to the facts of the instant case. For these reasons, Judge Barker concludes that the Defendants have failed to establish that Dr. Thompson's testimony is based on speculation or that his methodology is otherwise not reliable, with respect to any of the three categories of allegedly unpaid work at issue. She opines the Defendants' arguments go to the factual sufficiency of Dr. Thompson's analysis and not to the reliability of his underlying methodology. So long as the expert witness testimony is not based on speculation, the methodology may be deemed reliable. Next, Judge Barker is not persuaded that Dr. Thompson failed to apply his own expertise or standards with regard to his expert opinions. She opines that (i) Dr. Thompson's expert testimony is inadmissible because the Plaintiffs' counsel identified the three categories of damages; (ii) the Defendants' argument that counsel told Dr. Thompson how to calculate damages is simply unsupported by the record and without merit; (iii) there is nothing in Dr. Thompson's testimony to suggest that the counsel prepared Dr. Thompson's reports from whole cloth and then asked him to sign them; and (iv) the Defendants have not directed the Court's attention to any evidence or legal authority suggesting that the counsel's procurement of Declarations from the Opt-Ins renders Dr. Thompson's expert testimony inadmissible. Hence, Judge Barker denies the Defendants' argument to the contrary as without merit. Judge Barker also rejects the Defendants' argument that Dr. Thompson's testimony would not be helpful to the jury because it consists of only basic math. To the contrary, she finds that Dr. Thompson's statistical expertise will be helpful to the jury in evaluating the data and understanding how it can be used to calculate damages not only for the Opt-Ins, but for the larger Rule 23 Class. Finally, Judge Barker opines that the Court already considered and rejected the Defendants' arguments that the Plaintiffs should be sanctioned for failing to timely respond to the Defendants' discovery requests regarding damages. The Defendants have not identified any basis to "reconsider" this ruling at this time. This argument is rejected. Accordingly, the Defendants' discovery-related arguments are without merit and rejected. For all the foregoing reasons, Judge Barker denies the Defendants' Daubert Motion to Exclude the Testimony of Plaintiffs' Expert. A full-text copy of the Court's Dec. 9, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/y4b5epk3 from Leagle.com. FANJOY CO: Luis Files ADA Suit in S.D. New York ----------------------------------------------- A class action lawsuit has been filed against Fanjoy Co. The case is styled as Kevin Yan Luis, individually and on behalf of all others similarly situated v. Fanjoy Co., Case No. 1:22-cv-10499 (S.D.N.Y., Dec. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Fanjoy -- https://fanjoy.co/ -- allows anyone with a fanbase to create unique merchandise experiences for their fans.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com FRANK & EILEEN: Fagnani Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Frank & Eileen LLC. The case is styled as Mykayla Fagnani, on behalf of herself and all other persons similarly situated v. Frank & Eileen LLC, Case No. 1:22-cv-10465 (S.D.N.Y., Dec. 9, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Frank & Eileen -- https://www.frankandeileen.com/ -- offers classic women's shirts, skirts, dresses, and women's pants made with love in sunny California.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal GAIA INC: Rosen Law Firm Investigates Potential Securities Claims ----------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, continues to investigate potential securities claims on behalf of shareholders of Gaia, Inc. GAIA resulting from allegations that Gaia may have issued materially misleading business information to the investing public. SO WHAT: If you purchased Gaia securities you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. The Rosen Law Firm is preparing a class action seeking recovery of investor losses. WHAT TO DO NEXT: To join the prospective class action, go to https://rosenlegal.com/submit-form/?case_id=9917 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. WHAT IS THIS ABOUT: On November 7, 2022, Gaia revealed "an investigation by the staff of the Denver Regional Office (the 'Staff') of the U.S. Securities and Exchange Commission (the 'SEC')" which began in June 2020. According to Gaia, "[i]n September 2022, Gaia and Gaia's Chief Financial Officer ('CFO') reached an agreement in principle with the Staff on a framework for a complete resolution of the investigation." Further, according to the Company, "[t]he agreement in principle contemplates that Gaia would consent, without admitting or denying any findings, to the entry of an administrative order: (1) finding that Gaia (a) misstated in its April 29, 2019 earnings release and earnings call the number of paying subscribers for the period ending March 31, 2019, … and (b) failed to comply with SEC whistleblower protection requirements with respect to the termination of one employee and the language used in severance agreements for other employees; and (2) requiring Gaia to pay a total civil monetary penalty of $2,000[,000] over a one-year period for these violations. At the same time, the CFO would consent, without admitting or denying any findings, to the entry of an administrative order: (1) finding that the CFO caused Gaia's misstatements in the April 29, 2019 earnings release and earnings call that is described above; and (2) requiring the CFO to pay a civil monetary penalty of $50[,000]." Gaia also stated "[t]here can be no assurance that the contemplated settlement will be finalized and approved." WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources, or any meaningful peer recognition. Many of these firms do not actually litigate securities class actions. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] GEICO INDEMNITY: Andrade Suit Removed to D. New Jersey ------------------------------------------------------ The case styled as Catherine Basantes Andrade, individually, and on behalf of all others similarly situated v. GEICO INDEMNITY, GEICO, ABC Corporations 1-10, John Does 1-10, Case No. BER L 5251 22 was removed from the Superior Court of Bergen County New Jersey, to the U.S. District Court for the District of New Jersey on Nov. 8, 2022. The District Court Clerk assigned Case No. 2:22-cv-06516-MCA-ESK to the proceeding. The nature of suit is stated as Insurance for Breach of Contract. GEICO Indemnity Company -- https://www.geico.com/ -- operates as an insurance company. The Company provides vehicle, property, business, and life insurance services.[BN] The Plaintiff is represented by: Barry J. Gainey, Esq. GAINEY McKENNA & EGLESTON 375 Abbott Road Paramus, NJ 07652 Phone: (201) 225-9001 Fax: (201) 225-9002 Email: bgainey@gme-law.com The Defendant is represented by: Curtis J. Turpan, Esq. HARWOOD LLOYD LLC 130 Main St. Hackensack, NJ 07601 Phone: (201) 359-3675 Fax: (201) 487-4758 Email: cturpan@harwoodlloyd.com GOLDWATER BANK: District of Arizona Narrows Claims in Feins Suit ---------------------------------------------------------------- In the case, John Feins, Plaintiff v. Goldwater Bank NA, Defendant, Case No. CV-22-00932-PHX-JJT (D. Ariz.), Judge John J. Tuchi of the U.S. District Court for the District of Arizona grants in part and denies in part the Defendant's Motion to Dismiss Plaintiff's Amended Complaint. In the Amended Class Action Complaint for Damages, Injunctive, and Equitable Relief, the Plaintiff, a citizen and resident of New Mexico, alleges that he was a customer of the Defendant, a bank with its principal office in Arizona. In May 2021, the Defendant experienced "an attempted ransomware attack" by hackers, and, around November 2021, it notified customers, including the Plaintiff, who were potentially affected by the incident. The Defendant acknowledged the compromise of sensitive consumer information in the Data Breach. Specifically, the hackers accessed information containing customers' Personally Identifiable Information ("PII"), including names, addresses, telephone numbers, Social Security numbers, account numbers, and tax identification numbers. After an investigation, the Defendant reported that the Data Breach compromised the PII of 11,376 individuals. In the November 2021 notification letter, it offered 12 months of identity monitoring services to its customers. In December 2021, Wells Fargo Bank notified the Plaintiff that a fraudulent account was opened in his name, which he links to the compromise of his PII in the Data Breach suffered by the Defendant. The Plaintiff claims he has experienced an increase in phishing attempts on his email, has spent considerable time on issues related to the Data Breach, and anticipates spending more time and money to mitigate and address harms caused by the Data Breach. On behalf of himself and a putative nationwide class, the Plaintiff now raises four state law claims against the Defendant as a result of the Data Breach: (1) negligence; (2) invasion of privacy; (3) breach of implied contract; (4) unjust enrichment. He also raises a fifth claim on behalf of a putative subclass of New Mexico plaintiffs: violations of the New Mexico Unfair Trade Practices Act. The Defendant has now filed a Motion to Dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). First, Judge Tuchi agrees with the Plaintiff that, at this early stage, the allegations point to the application of Arizona law to both the Plaintiff's tort and contract-based claims. He thus applies Arizona law to the extent possible, using out-of-state sources as persuasive authority in the absence of on-point Arizona law. Next, taking the Plaintiff's allegations as true for the purpose of resolving the Defendant's Motion to Dismiss, Judge Tuchi says he need only find it plausible that the Plaintiff's alleged injury was proximately caused by the Data Breach. The Plaintiff's factual allegations are sufficient for the Court plausibly infer a connection between the Data Breach and the Plaintiff's alleged two incidents. Accordingly, Judge Tuchi denies the Defendant's request to dismiss the negligence claim (Count 1) based on insufficient allegations of proximate cause. Regarding Count 2, Judge Tuchi holds that the Plaintiff does not allege non-conclusory facts showing the Defendant intended any PII disclosure; indeed, the Plaintiff alleges that his PII "was contained, stored, and managed electronically by the Defendant's records, computers, and databases that was intended to be secured from unauthorized access to third-parties." He says the "central narrative" of the Plaintiff's allegations is that the Defendant failed "to adequately secure and safeguard" Plaintiff's PII from hackers. This is not sufficient to show the Defendant intentionally intruded upon the Plaintiff's private affairs when, as the Plaintiff alleges, the Plaintiff's PII was stolen. As a result, he dismisses the Plaintiff's invasion of privacy claim (Count 2). Judge Tuchi agrees with the Defendant's arguments regarding the Plaintiff's breach of implied contract claim, that the Amended Complaint contains no nonconclusory allegations regarding what the supposed implied contract terms were and that the policy is simply a promise to do what the law requires and could not have created a separate implied agreement between the Defendant and the Plaintiff. Relatedly, to the extent the Plaintiff contends that the Defendant breached some implied contract by not complying with its own written policies, the allegations do not suffice to show that any such non-compliance was beyond what was legally mandated. For these reasons, the Plaintiff's breach of implied contract claim (Count 3) fails, and will be dismissed. To the extent the Defendant derived an enrichment for its privacy policy, Judge Tuchi holds that it was not unjust because it was subject to terms and conditions set forth in the service agreement. The Plaintiff does not allege any facts to show that the Defendant failed to take reasonable steps to protect PII. The Plaintiff thus fails to state a claim for unjust enrichment (Count 4) and Judge Tuchi dismisses it. As Judge Tuchi finds, the Amended Complaint contains no non-conclusory allegations regarding how any of those terms are false or misleading other than the fact that the Data Breach occurred. As the Defendant argues, the fact of a data breach is not sufficient by itself to show that it made false or misleading statements in its privacy policy. Without more, the claim fails, and Judge Tuchi dismisses Count 5. The remaining question is whether the Plaintiff has adequately alleged damages for its sole remaining claim of negligence. Judge Tuchi explains that courts have recognized the diminished value of PII as a cognizable injury resulting from a data breach, as small as that value may be. The Plaintiff alleges there is a high demand on the market for PII that includes Social Security numbers and he has plausibly been deprived of the ability to sell his personal data by the Data Breach. As a result, the Plaintiff's prayer for the diminished value of his PII also survives the Defendant's Rule 12(b)(6) challenge. Because he finds the defects in the Plaintiffs' dismissed claims cannot be cured by amendment when considering the context and thoroughness of their allegations in the Amended Complaint, Judge Tuchi dismisses Counts 2 through 5 without leave to amend. He grants in part and denies in part the Defendant's Motion to Dismiss Plaintiff's Amended Complaint. The Defendant will file an Answer to Count 1 of the Amended Complaint within the time specified in the Federal Rules of Civil Procedure. The Court will set a case management conference by separate Order. A full-text copy of the Court's Dec. 9, 2022 Order is available at https://tinyurl.com/4d3ztdtz from Leagle.com. GONCHEZ REALTY CORP: Hanyzkiewicz Files ADA Suit in E.D. New York ----------------------------------------------------------------- A class action lawsuit has been filed against Gonchez Realty Corp. The case is styled as Marta Hanyzkiewicz, on behalf of herself and all others similarly situated v. Gonchez Realty Corp., Case No. 1:22-cv-07514-KAM-RER (E.D.N.Y., Dec. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Gonchez Realty Corp was the owner of the properties.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com HENNEPIN COUNTY PROBATE: Vickerman Files Suit in D. Minnesota ------------------------------------------------------------- A class action lawsuit has been filed against Hennepin County Probate Court, et al. The case is styled as M. D. Vickerman, on behalf of himself and all others similarly situated v. Hennepin County Probate Court, John Derus, Chairperson, Hennepin County Board of Commissioners; Honorable Melvin Peterson, Hennepin County Probate Judge, and their successors in office; Hennepin County Board of Commissioners; Arthur Noot, individually and in his capacity as Commissioner of the Department of Public Welfare of the State of Minnesota, and their successors in office; Case No. 4:78-cv-00376-KMM (D. Minn., Dec. 12, 2022). The nature of suit is stated as Other Civil Rights for the Civil Rights Act. Hennepin County -- https://www.hennepin.us/ -- is a county in the U.S. state of Minnesota.[BN] The Defendants are represented by: Kelly K. Pierce, Esq. HENNEPIN COUNTY ATTORNEY'S OFFICE 300 South 6th Street, Suite A2000 Minneapolis, MN 55487 Phone: (612) 348-5488 Fax: (612) 348-8299 Email: kelly.pierce@hennepin.us HERTZ CORP: Settles Consumers Lawsuits Over Stolen Vehicles ----------------------------------------------------------- Rhiannon Ally, writing for ABC7, reports that Hertz settled hundreds of lawsuits from customers who were falsely accused of stealing vehicles. The rental car company said it will pay approximately $168 million by the end of 2022 to settle the majority of the 364 pending claims -- some made by customers that were arrested at gunpoint. "All of them were pointing guns literally to the back of our head," said customer Kelly Grady of Pennsylvania. In April, CEO Stephen Scherr said that he was working to fix a glitch in the company's systems that resulted in vehicles being listed as "stolen" or incorrectly indicating that a customer had not paid. Hertz also blamed the computer glitch for not properly recording rental extensions. Grady said she was arrested a month after she had returned a Hertz vehicle because it was reported stolen. She spent 12 days in jail prior to the incident being cleared up. "They yelled and screamed, 'Get out of the car, put my hands up'" said Jonathan Olivares, who was pulled over in Louisiana after his vehicle was reported stolen. He said he tried to contact his employer who set up the rental but was unable to do so. Officers proceeded to charge him with felony auto-theft. "I was in a cell the size of a bathroom with two other inmates," he said. The company anticipates recovering a "meaningful portion" of the settlement through its insurance carriers. Hertz does not expect the resolution of these claims to impact its capital allocation plans for the remainder of the year, nor for the 2023 year. [GN] IDEXX LABORATORIES: Yuen Suit Transferred to D. Maine ----------------------------------------------------- The case styled as Cam Yuen, Arrianna Garcia, Kathryn Heberling, Susan McVinney, Sunny Stimson, Ellen Berman, Neil Murphy, Dennis Wild, Andrea Bury, Miranda Smelcer, Marcia Potts, Sheryl Emerson, Chrysta Cataldo, Marlena Giga, Gina Giorgio, Michelle Carpenter, Valerie Hitz, Shavonna Armstrong, Hilary Allred, Melissa Marshall, Joseph Duncan, and Dawn Reynosa, on behalf of themselves and all others similarly situated v. IDEXX LABORATORIES, INC. and IDEXX DISTRIBUTION, INC., Case No. 3:22-cv-04297 was transferred from the U.S. District Court for the Northern District of California, to the U.S. District Court for the District of Maine on Dec. 12, 2022. The District Court Clerk assigned Case No. 2:22-cv-00392-JDL to the proceeding. The nature of suit is stated as Anti-Trust for Antitrust Litigation. IDEXX Laboratories, Inc. -- http://www.idexx.com/-- is an American multinational corporation engaged in the development, manufacture, and distribution of products and services for the companion animal veterinary, livestock and poultry, water testing, and dairy markets.[BN] The Plaintiffs are represented by: Brent W. Johnson, Esq. Richard A. Koffman, Esq. Daniel McCuaig, Esq. Daniel H. Silverman, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave., NW, Fifth Floor Washington, DC 20005 Phone: (202) 408-4600 Email: bjohnson@cohenmilstein.com rkoffman@cohenmilstein.com dmccuaig@cohenmilstein.com dsilverman@cohenmilstein.com - and - Joshua P. Davis, Esq. BERGER MONTAGUE PC 59A Montford Avenue Mill Valley, CA 94941 Phone: (800) 424-6690 Email: jdavis@bm.net - and - Eric L. Cramer, Esq. Michael J. Kane, Esq. Andrew C. Curley, Esq. Najah A. Jacobs, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Phone: (215) 875-3000 Email: ecramer@bm.net mkane@bm.net acurley@bm.net njacobs@bm.net - and - Daniel Walker, Esq. BERGER MONTAGUE PC 2001 Pennsylvania Avenue, NW, Suite 300 Washington, DC 20006 Phone: (202) 559-9745 Email: dwalker@bm.net - and - Jennie Lee Anderson, Esq. Lori E. Andrus, Esq. ANDRUS ANDERSON LLP 155 Montgomery Street, Suite 900 San Francisco, CA 94104 Phone: (415) 986-1400 Facsimile: (415) 986-1474 Email: jennie@andrusanderson.com lori.andrus@andrusanderson.com The Defendants are represented by: Glenn D. Pomerantz, Esq. Stuart N. Senator, Esq. Adam R. Lawton, Esq. MUNGER, TOLLES & OLSON LLP 350 S. Grand Avenue, Ste 50th Floor Los Angeles, CA 90071-3426 Phone: (213) 683-9100 Email: glenn.pomerantz@mto.com stuart.senator@mto.com adam.lawton@mto.com - and - Adrianne E. Fouts, Esq. James T. Kilbreth, Esq. DRUMMOND WOODSUM & MACMAHON 84 Marginal Way, Suite 600 Portland, ME 04101 Phone: (207) 772-1941 Email: afouts@dwmlaw.com jkilbreth@dwmlaw.com - and - Stephen A. Hylas, Esq. MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Phone: (415) 512-4053 Fax: (415) 644-6953 Email: stephen.hylas@mto.com JOHNSON & JOHNSON: Faces Class Action Over Neutrogena Sunscreen --------------------------------------------------------------- Medtruth reports that a sunscreen marketed for children and sold by the Neutrogena Corporation, a Johnson & Johnson brand, is at the center of a proposed class action lawsuit over allegations that the product costs more than a virtually identical adult-marketed Neutrogena sunscreen. Neutrogena Pure & Free baby zinc oxide SPF 50, a sunscreen stick, costs almost twice as much as Neutrogena Mineral Ultra Sheer sunscreen stick, despite the fact that both products contain the same amount of the active ultraviolet light-blocking active ingredient, zinc oxide. In addition, 12 of the 13 inactive ingredients contained in both products are found in near-identical quantities, a 12-page lawsuit alleges, according to a class action news site. The only difference in the formulation between the two products, according to the lawsuit, is that the thirteenth and least-predominant ingredient is oat kernel oil in the baby sunscreen, while the adult version uses tocopheryl acetate, a form of vitamin E. The difference between the thirteenth ingredient in the respective formulas does not account for the price discrepancy, the lawsuit alleges, adding that parents who purchase Neutrogena's Pure & Free baby zinc oxide are misled into believing that the product is a superior product for their infant's needs in comparison to the adult version of the sunscreen. Neutrogena's Pure & Free baby zinc oxide sunscreen stick costs $16.96 on a per-ounce basis while Mineral Ultra Sheer costs $8.65. "This price discrepancy confirms to parents they are buying different products, because they will not, at the point-of-purchase, theorize as to other explanations," reads the complaint. The complaint also alleges that Johnson & Johnson's marketing practices in selling Neutrogena Pure & Free baby sunscreen amount to a "kid tax," which is similar to the so-called "pink tax" allegation against companies who sell products geared to women at a higher price than a virtually-identical product sold to men. "The 'kids' tax' exists because studies have shown that demand for children's versions of personal care products is inelastic, since parents are less sensitive to paying higher prices when they believe they are buying products specifically formulated for their children," the lawsuit contends. [GN] JOLIET, IL: Faces Class Suit Over Hefty Fines for Commercial Trucks ------------------------------------------------------------------- John Ferak, writing for Patch, reports that long-time Joliet attorney Frank Andreano intends to move ahead with a class action lawsuit against City Hall, accusing Joliet officials of "an illegal scheme" to generate millions of dollars of extra revenue for itself by targeting commercial truckers passing through Joliet. "Joliet put itself in the position of being the fox guarding the henhouse," Andreano's class action lawsuit against Joliet states. "Because the fines due under those tickets are hefty, Joliet uses this scheme to generate millions of dollars for itself." According to the civil lawsuit at the Will County Courthouse, Joliet is known as the Crossroads of Mid-America because of the intersection of Interstate 55 and Interstate 80 as well as major railways and a series of canals. Joliet is one of the most heavily trafficked area for commercial trucks in the entire United States. The main legal issue, according to Andreano, is that Joliet's municipal ordinances for commercial truck moving violations and offenses reportable to the Illinois Secretary of State are instead being handled by Joliet City Hall as "administrative adjudications of tickets for violating Joliet's over length or overweight truck ordinances" in violation of state law. "Joliet's administrative adjudication scheme is motivated by financial gain," Andreano argues in his class action lawsuit In 2017, Joliet established its Joliet Police Department commercial truck enforcement to issue more tickets to truckers. "In the first 14 months after this new unit was created, Joliet issued tickets totaling over $2.2 million," Andreano revealed. "Joliet retains all of the funds generated through its scheme. If these tickets were adjudicated in an Illinois court, Joliet would have to share the proceeds from the fines with other units of government." Joliet Patch visited the city's legal department on Dec. 7, leaving a message seeking comment from Joliet Corporation Counsel Sabrina Spano, but she did not call back. A city employee told Patch the office is well aware of Andreano's class action lawsuit involving the truck traffic enforcement. "To bypass the distribution of fines paid for alleged violations of the ordinances to other units of government, Joliet established for itself an in-house administrative traffic court system that allowed the city of Joliet to keep traffic court monies for itself," Andreano's lawsuit stated. "In gaming terms, Joliet stacks the deck in its favor and then keep all of the winnings." Incidentally, Andreano, along with Chicago attorney Karl Leinberger of Markoff Leinberger LLC filed their lawsuit Nov. 29 —just three days before the Illinois Court of Appeals for the Third District issued an important legal opinion in a totally separate case called Cammacho versus City of Joliet. "Plaintiffs, Robert Cammacho Jr., James A. Jones, Bruce D. Oliver, David B. Speer, and Jorge Urbina, were cited for violating the defendant City of Joliet's ordinance, which imposed weight limits for vehicles on designated roads. The citations were adjudicated through the City's administrative process. The administrative hearing officer imposed fines against plaintiffs. The trial court affirmed the decision of an administrative officer. Plaintiffs appeal, contending that the City lacked jurisdiction to administratively adjudicate the violations in question. We reverse," the Court of Appeals announced in its ruling. The plaintiff's lawyer in the Cammacho case against Joliet? Frank Andreano of Andreano Law, 58 North Chicago St. As for the losing side, Joliet was represented by assistant corporation counsel Todd Lenzie. You can read the entire Cammacho case eight-page Illinois Appeals Court opinion against Joliet here. As it stands, Andreano is now representing four professional truck drivers, three from the U.S. and one from Canada, who were busted by Joliet Police between 2019 and 2022 and all four men quickly paid their fines to the city of Joliet to avoid further escalating fines for failing to do so. According to the class action lawsuit: Iuri Culev resides in California and on Jan. 6, 2021, Joliet police "pulled Iuri's truck over near the intersection of Millsdale Road and Holland drive in Joliet. The Iuri ticket stated that Iuri owed a $500 municipal fine . . . in violation of the Overlength Ordinance." On March 9, 2021, Iuri paid $500 to Joliet for his allegedly over length vehicle. Richard Bagley resides in Missouri and this past Sept. 17, Joliet police gave him a $250 ticket for driving an over length vehicle on a non-designated city street at North Joliet Street and West Jefferson Street in downtown Joliet. He paid the $250 ticket to Joliet on Oct. 6 and "Joliet administratively adjudicated the Richard ticket, which provided no method for adjudicating the Richard ticket in an Illinois court." Vasan Tharamalingham resides in Ontario, Canada and this past June 2, Joliet police gave him a $250 municipal fine for an overweight vehicle at Millsdale Road and Bridge Road in Joliet. On June 13, he paid $250 to Joliet. Maciej Gasienica Sobczak resides in Illinois and on Nov. 4, 2019, he drove a Volvo semi-truck near Millsdale Road and Holland Drive where Joliet police gave him a $500 municipal ticket for driving on a non-designated city street. He paid the $500 fine to Joliet on Dec. 10, 2019. "Even though Joliet illegally used its administrative adjudication system, plaintiffs had no choice but to pay the fines by their tickets," Andreano's lawsuit argued. "Joliet had no right to collect any of those monies . . . Joliet's wrongful conduct inflicted damage upon plaintiffs Class Members by causing them to pay illegal fines ranging from $250 to over $1,000 per ticket." If the plaintiffs did not pay their fines in quick fashion, they faced higher fines for payments made after certain deadlines, collection agency proceedings, garnished wages, payment of Joliet's fees and expenses incurred in collecting the fines, interest payments, negative reporting to credit bureaus and more, Andreano noted. "Joliet's ticket scheme strong-armed plaintiffs and Class Members into paying their fines by making threats to plaintiff's pocketbooks," his lawsuit noted. "Most commercial truck drivers do not receive significant compensation for being a truck driver. Joliet's fines, in contrast, are significant amounts of money." Andreano believes that if his class action lawsuit gets a judge's permission to proceed, the number of plaintiffs may climb into the thousands against the city of Joliet. "Plaintiffs do not know the exact number of members of the Class because that is information under the exclusive control of the Defendant, but on information and belief, there (are) thousands of members in the Class," the lawsuit states. "Joliet is the third-largest city in Illinois and contains hundreds of businesses that involve commercial trucking." [GN] JPMORGAN CHASE: Radabaugh FLSA Suit Transferred to S.D. Ohio ------------------------------------------------------------ The case styled as Jodi Radabaugh and Barbara J. Vernon, individually and on behalf of all others similarly situated v. JPMORGAN CHASE & CO. and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Case No. 1:22-cv-08336 was transferred from the U.S. District Court for the Southern District of New York, to the U.S. District Court for the Southern District of Ohio on Dec. 12, 2022. The District Court Clerk assigned Case No. 2:22-cv-04356-MHW-CMV to the proceeding. The lawsuit is brought over alleged violation of the Fair Labor Standards Act. JPMorgan Chase & Co. -- https://www.jpmorganchase.com/ -- is an American multinational investment bank and financial services holding company headquartered in New York City and incorporated in Delaware.[BN] The Plaintiff is represented by: Jason T. Brown, Esq. Nicholas Conlon, Esq. BROWN, LLC 111 Town Square Pl Suite 400 Jersey City, NJ 07310 Phone: (877) 561-0000 Fax: (855) 582-5297 Email: jtb@jtblawgroup.com nicholasconlon@jtblawgroup.com The Defendants are represented by: Stephanie R Reiss, Esq. MORGAN LEWIS & BOCKIUS, LLP One Oxford Centre, 32nd Floor Pittsburgh, PA 15219-6401 Phone: (412) 560-3378 Fax: (412) 560-7001 Email: stephanie.reiss@morganlewis.com - and - Samuel S. Shaulson, Esq. MORGAN, LEWIS & BOCKIUS LLP 101 Park Avenue New York, NY 10178-0060 Phone: (212) 309-6718 Fax: (212) 309-6001 Email: sam.shaulson@morganlewis.com - and - Thomas Anton Linthorst, Esq. MORGAN LEWIS & BOCKIUS, LLP (NJ) 502 Carnegie Center Princeton, NJ 08540 Phone: (609) 919-6642 Email: thomas.linthorst@morganlewis.com KHAYLIE HAZEL: Class Certification Discovery in Martin Suit Denied ------------------------------------------------------------------ In the case, ANDREW MARTIN ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff v. KHAYLIE HAZEL YEARNING LLC, Defendant, Civil Action No. 3:22-CV-176-SA-JMV (N.D. Miss.), Magistrate Judge Jane M. Virden of the U.S. District Court for the Northern District of Mississippi, Oxford Division, grants in part and denies in part the Plaintiff's motion for leave to conduct class certification discovery. The lawsuit is a Fed. R. Civ. P. 23 putative class action under the TCPA. In particular, the Plaintiff seeks to have certified two nationwide classes certified. He brings the action under Fed. R. Civ. P. 23 on behalf of the DNC Class and Time Class: a. DNC Class: Plaintiff and all persons within the United States (1) to whose telephone number Defendant placed (or had placed on its behalf) two or more text messages, (2) from four years prior to the filing of the Compliant to the date of certification, (3) for the purpose of encouraging the purchase of Defendant's CBD Oil Products (4) in a 12-month period (5) when the telephone number to which the text messages were sent was on the National Do-Not-Call Registry at the time of the messages. b. Time Class: Plaintiff and all persons within the United States (1) to whose telephone number Defendant placed (or had placed on its behalf) two or more text messages, (2) from four years prior to the filing of the Compliant to the date of certification, (3) between the hours of 9:00 pm and 8:00 am local time, (4) for the purpose of encouraging the purchase of Defendant's CBD Oil Products (5) in a 12-month period. The complaint was served on Sept. 19, 2022, and was unanswered. Accordingly, entry of default was made on Oct. 19, 2022. Entry of default, however, does not cut off the Plaintiff's right to pursue certification of a class(es) under Fed. R. Civ. P. 23. Plaintiffs seeking to certify a class must make certain showings under Rule 23(a): (1) numerosity, (2) commonality of issues, (3) typicality of the class representatives' claims in relation to the class, and (4) adequacy of the class representatives and their counsel to represent the class. In addition to Rule 23(a)'s four requirements, a plaintiff must also satisfy the requirements of Rule 23(b)(1), (2), or (3). In the instant case, according to the Plaintiff, for purposes of having the proposed classes certified, factual development, and therefore, discovery, is needed only as concerns one of the four factors listed in Rule 23(a), namely, numerosity. Judge Virden explains that in light of Rule 23's mandate to determine class certification at "an early practicable time," the district court must be permitted to limit precertification discovery to "evidence that, in its sound judgment, would be helpful or necessary to the certification decision." Nevertheless, she finds that the Plaintiff seeks discovery beyond that relevant and proportional to the issues pertinent to a decision on class certification. To begin, unless and until a class has been certified, Judge Virden holds that discovery as to the damages such class might be entitled to is premature. Accordingly, the Plaintiff is not permitted leave to conduct such discovery (except as might be relevant to his own individual claim for damages). Secondly, according to the Plaintiff, for purposes of having the proposed classes certified, factual development, and therefore, discovery, is needed only as concerns one of the four factors listed in Rule 23(a), namely numerosity, and on the subject, generally, of "administrative feasibility." Therefore, no discovery except as to these factors will be permitted at this juncture. On the other hand, as concerns the need for discovery on numerosity and administrative feasibility, each relevant to the class certification analysis, Judge Virden permits delineated discovery as follows: As to the Defendant, a 30(b)(6) deposition pursuant to subpoena of Keisha Merrit, which lists in the subpoena the documents and topics requested, for the limited purpose of a) producing any call logs in her possession or that of the Defendant covering a two-year period prior to today, provided such call logs are related to the solicitation of sales or promotion of the Defendants' CBD Oil products; b) discovering the identity and contact information of any 3rd party engaged on behalf of Defendant to solicit or promote sales of its CBD Oil products via telephone in the past two years; and c) the types of information maintained by Defendant which could be reviewed to ascertain the identity and contact information of putative class members (for the past two years) and/or whether a person otherwise meets a purported class definition. As to third parties engaged by the Defendant to promote by phone its CBD Oil products in the last two years, Judge Virden allows at this juncture up to five subpoenas for production of a) their respective call logs as described above; and b) seeking an exemplar(s) or sample(s) of such information, if any, maintained by such third party that could be reviewed to ascertain whether a person meets a purported class definition and their identity. For the reasons she explained, Judge Virden grants in part and denies in part the Plaintiff's motion for leave to conduct class certification discovery. The Plaintiff will have 90 days from the date of the Order to conduct the discovery outlined. The Plaintiff will have 30 days after expiration of the discovery period to file a motion for class certification. A full-text copy of the Court's Dec. 9, 2022 Order is available at https://tinyurl.com/43rc7f9f from Leagle.com. KIA AMERICA: Browning Files Suit in D. Arizona ---------------------------------------------- A class action lawsuit has been filed against Kia America, Inc., et al. The case is styled as Patricia Browning, Melvin Essomba, individually and on behalf of all similarly situated individuals v. Kia America, Inc., Hyundai Motor America Incorporated, Case No. 2:22-cv-02074-JJT (D. Ariz., Dec. 8, 2022). The nature of suit is stated as Personal Injury: Motor Vehicle Prod. Liability for the Magnuson-Moss Warranty Act. Kia America, Inc. -- http://www.kiamedia.com/-- provides a wide range of cars that meet your lifestyle. Browse our luxury or sports sedans, hybrids, electric cars, SUVs & hatchbacks.[BN] The Plaintiffs are represented by: Richard Phillip Traulsen, Esq. BEGAM MARKS & TRAULSEN PA 11201 N Tatum Blvd., Ste. 110 Phoenix, AZ 85028 Phone: (602) 254-6071 Fax: (602) 252-0042 Email: rtraulsen@BMT-law.com KIK INT'L: Angeles Class Suit Remanded to Los Angeles Super. Court ------------------------------------------------------------------ Judge Stanley Blumenfeld, Jr., of the U.S. District Court for the Central District of California remands the case, CARMEN ANGELES, Plaintiff v. KIK INTERNATIONAL LLC et al., Defendants, Case No. 2:22-cv-07342-SB-AFM (C.D. Cal.), to the Superior Court of the State of California for the County of Los Angeles. Angeles brought the wage and hour case in state court, and KIK removed it to federal court. In the notice of removal, KIK asserts that the Court has federal question jurisdiction because Angeles is subject to collective bargaining agreements (CBAs) and therefore Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sections 141-197, completely preempts Angeles's claims. It also claims that the Court has diversity jurisdiction. Angeles moved to remand and KIK opposes. Angeles filed the case in state court as a putative class action. Another class action involving similar claims and parties was pending in state court. The other class action settled, and Angeles opted out of that settlement. With Angeles' consent, the state court dismissed her class action allegations, leaving Angeles as the sole Plaintiff in this case. KIK removed on Oct. 7, 2022. Angeles does not contest the timeliness of KIK's removal. In the complaint, Angeles brings the following claims: (1) failure to pay overtime wages in violation of Cal. Lab. Code Section 510, (2) failure to pay the minimum wage in violation of Cal. Lab. Code Section 1197, (3) failure to pay sick leave in violation of Cal. Lab. Code Section 246, (4) failure to provide meal periods in violation of Cal. Lab. Code Section 512, (5) failure to pay all wages upon termination in violation of Cal. Lab. Code Sections 201-02, (6) failure to provide accurate wage statements in violation of Cal. Lab. Code Section 226, and (7) unfair competition in violation of Cal. Bus. and Prof. Code Section 17200-17210 (UCL). To determine whether the LMRA preempts a cause of action, courts in the Ninth Circuit employ a two-part test cited in Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007). First, a court determines "whether the asserted cause of action involves a right conferred upon an employee by virtue of state law, not by a CBA. Second, a court interprets the CBAs in adjudicating claims. Judge Blumenfeld begins by analyzing whether any of Angeles' claims arise solely from the CBAs. He finds that Angeles' complaint does not refer to the CBAs but rather invokes various provisions of the California Labor Code and California Business & Professions Code. Angeles' claims therefore arise under state law. Accordingly, KIK has not shown that any of Angeles' claims arise solely under the CBAs. Rather, her claims arise under California law. He proceeds to assess the second Burnside element, which asks whether the Court will be required to interpret the CBAs in adjudicating Angeles' claims. The parties dispute whether the Court will be required to interpret the CBAs' provisions. Judge Blumenfeld states that when the meaning of contract terms is not the subject of dispute, the bare fact that a CBA will be consulted in the course of state-law litigation does not result in preemption. He finds that none of Angeles' claims requires anything more than such consultation. In short, since Angeles' claims will at most require a court to apply or "look to," rather than interpret, the CBAs, Section 301 does not completely preempt these claims. Therefore, Section 301 does not confer federal question jurisdiction. Judge Blumenfeld now considers whether the Court has diversity jurisdiction, which requires complete diversity among the parties and an amount in controversy that exceeds $75,000. Angeles does not dispute that there is complete diversity among the parties but challenges KIK's showing that the amount in controversy exceeds the statutory minimum. A removing defendant must prove the amount in controversy by a preponderance of the evidence. Relying on conclusory allegations without support is insufficient. Judge Blumenfeld finds that KIK fails to carry its burden. KIK has not provided relevant evidence of the likely fees to be incurred in this action. The probative value of rates charged and hours expended in other lawsuits depends on the similarity of the compared cases. KIK has not made a proper apples-to-apples comparison, and there are reasons to believe that the circumstances of the case are meaningfully different. Thus, KIK has not demonstrated that the Court has diversity jurisdiction. Since KIK has not met its burden of showing that the Court has federal question or diversity jurisdiction over any of Angeles' claims, removal was improper, especially in light of the maxim that "any doubt about the right of removal requires remand." Judge Blumenfeld grants Angeles' motion to remand and remands the case to the Los Angeles Superior Court. A full-text copy of the Court's Dec. 9, 2022 Order is available at https://tinyurl.com/39x7e3sb from Leagle.com. KIMBERLY-CLARK CORP: Diapers Caused Chemical Burns, Suit Claims --------------------------------------------------------------- New York Attorney C.K. Lee and the Lee Litigation Group have filed a federal class action complaint bringing consumer fraud and personal injury claims against the Kimberly-Clark Corporation, the manufacturer of Huggies diapers and a wide range of other hygiene products. The named plaintiffs -- four parents along with their minor children -- allege that Huggies diapers caused severe chemical burns to their infants, which in one case involved a life-threatening ulcer. The complaint was lodged in the United States District Court for the Northern District of Texas (3:22-cv-02717-N), where Kimberly-Clark is headquartered, but the plaintiffs hail from four different states and seek to represent a nationwide class of consumers defrauded by Kimberly-Clark. As detailed in the class action complaint, concerns about the safety of Huggies diapers have been proliferating for years. Kimberly-Clark's response to parents' concerns about the safety of Huggies has always been to dismiss these as about run-of-the-mill diaper rashes. The company has stated, "We can assure you our Huggies products can't cause a chemical burn because they're made of materials which do not create any chemical reaction, nor will they react with stool and urine." Relying on the insider knowledge of a whistleblower, former Kimberly-Clark quality assurance specialist Frank Fritz Kromenaker, the class action complaint alleges that these assurances are a bald-faced lie. Mr. Kromenaker explains that Huggies diapers rely on a proprietary chemical known as Ahcovel, which reacts with an infant's urine to make it absorbable by the diaper. Ahcovel is a known skin irritant that can cause serious injury when present in sufficient quantities. Mr. Kromenaker alleges that Kimberly-Clark fails to rigorously inspect and maintain the machinery that dispenses Ahcovel on Huggies diapers, frequently causing excessive amounts to be dispensed. The complaint alleges that the disproportionate number of serious injuries reported by parents using Huggies is the result of Kimberly-Clark's persistent negligence on this front. The complaint includes records showing that Kimberly-Clark was aware of both Ahcovel's potential dangers and its own failure to properly regulate how much of it is dispensed on diapers. Additional information about the complaint can be found at www.huggiesinvestigation.com, or contact C.K. Lee, Esq., at the following details: C.K. Lee Lee Litigation Group, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Tel./Text: 1-909-LAWYERS (1-909-529-9377) Email: info@leelitigation.com [GN] LANGUAGE LINE: Boyce Sues Over Unpaid Minimum and Overtime Wages ---------------------------------------------------------------- Simone Franco de Andrade Boyce, individually and on behalf of herself and all others similarly situated v. Language Line Services, Inc., a Delaware corporation, On Line Interpreters, Inc., a Delaware corporation, and DOES 1 through 10, inclusive, Case No. 5:22-cv-08076 (N.D. Cal., Dec. 12, 2022), is brought under the Fair Labor Standards Act, California Labor Code, and applicable Industrial Welfare Commission Order ("Wage Order"); and California Business & Profession ("UCL"), premised on the Defendants' failure to pay Plaintiff and other similarly-situated employees all earned minimum and overtime wages, failure to provide compliant meal-and-rest periods, failure to furnish accurate wage statements, failure to reimburse reasonable and necessary business expenses, failure to pay all earned wages due upon separation, and violations of the UCL. Under the FLSA and California law, employers must pay all non-exempt employees an overtime wage premium of pay one and one-half times their regular rates of pay for all time they spend working over 40 hours in a workweek. The Defendants failed to pay the Plaintiff, the Collective Members and the Class Members one and one-half times their regular rate of pay for all time they spent working over 40 hours in a workweek. In addition to the minimum protections of the FLSA, California law requires employers to pay non-exempt employees an overtime wage premium of pay one and on-half times their regular rate of pay for all time they spend working over 8 hours in a day, says the complaint. The Plaintiff was a full-time employee of the Defendants, who worked as an Interpreter within the state of California from March 8, 2020 through December 17, 2021. Language Line Services, Inc. and OLI provide remote translation and interpretation services to its clients worldwide.[BN] The Plaintiff is represented by: Brian S. Kabateck, Esq. Shant Karnikian, Esq. Jerusalem F. Beligan, Esq. KABATECK LLP 633 W. Fifth Street, Suite 3200 Los Angeles, CA 90071 Phone: (213) 217-5000 Email: bsk@kbklawyers.com sk@kbklawyers.com jfb@kbklawyers.com - and - James L. Simon, Esq. THE LAW OFFICES OF SIMON & SIMON 5000 Rockside Road Liberty Plaza – Suite 520 Independence, OH 44131 Phone: (216) 525-8890 Email: james@bswages.com - and - Michael L. Fradin, Esq. 8401 Crawford Ave., Ste. 104 Skokie, IL 60076 Phone: (847) 986-5889 Email: mike@fradinlaw.com LET'S MEAT INC: Kim Sues Over Failure to Pay Minimum Wages ---------------------------------------------------------- Katie Kim and Miguelina Ortega on behalf of themselves and all others similarly situated v. Let's Meat Inc. d/b/a Let's Meat and Jung H. Lee aka Jayden, Case No. 1:22-cv-10481 (S.D.N.Y., Dec. 12, 2022), is brought against the Defendants' violations of the Fair Labor Standards Act and the New York Labor Law, including failure to pay minimum wages, failure to pay overtime wages in violation of the FLSA and NYLL; illegal retention of employee gratuities in violation of FLSA and NYLL; failure to pay for all hours worked in violation of NYLL; failure to provide accurate wage notices in violation of NYLL. The Defendants were/are permitted, under the FLSA and NYLL, to pay certain tipped employees at a statutory hourly rate that is less than the standard hourly minimum wage rate so long as the "tips" or "gratuities" that such tipped employee is expected to receive, when added to the hourly wages, meet or exceed the standard hourly minimum wage, and so long as all tips received by the employees are retained by the employee, and no portion of the tips are retained by Defendants or given to employees in non-tipped positions. However, the Defendants have not entitled to avail themselves of the reduced minimum wage by applying the tip credit allowance for the Plaintiffs because the Defendants would retain tips and would pay a portion of the tips earned by Plaintiffs to managerial staff. The Defendants also siphoned off a portion of the tips earned by the Plaintiffs to pay the salaries of other staff, including the salaries of the Restaurant's other employees who were not tipped employees and did not participate in the tip pool. As such, the Defendants were obligated to pay the Plaintiffs the standard hourly minimum wage rate, and not any reduced minimum wage through the application of a tip credit, says the complaint. The Plaintiffs were employed by the Defendants as hostesses, servers, and assistant managers at Let's Meat. Let's Meat is a Korean BBQ restaurant located in New York City.[BN] The Plaintiffs are represented by: Ryan J. Kim, Esq. RYAN KIM LAW, P.C. 222 Bruce Reynolds Blvd. Suite 490 Fort Lee, NJ 07024 Email: ryan@RyanKimLaw.com LIZA LUCION: Faces Class Action Over Immigration Scam in Canada --------------------------------------------------------------- Zak Vescera, writing for The Mirror, reports that Andres Medellin thought he had struck gold. In 2021, Medellin says a Vancouver immigration consultant pitched him and a room full of other Latin American workers on a wunderkind Canadian immigration program that could allow anyone to legally remain and work in the country. Instead, Medellin is back home in Mexico, his dreams of studying in Canada on hold and his immigration file full of red flags that will cause future problems. Medellin and dozens of other migrant workers, mostly Mexicans, are suing that consultant, Liza Lucion, alleging she collected thousands in fees to apply for a Canadian immigration program that never existed. The proposed class action lawsuit against Lucion, which is not yet certified, alleges the consultant's actions deprived clients of their chance to apply for other, legitimate ways of staying in the country. The lawsuit has been filed with the B.C. Supreme Court and Lucion has filed a statement of defence. The next step is a hearing on whether the class action lawsuit can proceed. Some of the clients, like Medellin, have since either chosen or been forced to leave. Lucion's licence to work as an immigration consultant has since been indefinitely suspended by the College of Immigration and Citizenship Consultants. Lucion categorically denies the allegations against her, which have yet to be tested in a court of law. In a statement sent by her lawyer, Lucion said she "made her best efforts to honestly and in good faith provide foreign nationals in Canada during the COVID-19 pandemic with information regarding the options available to maintain legal status in Canada based on relevant government policies." She said complainants "likely misunderstood what she told them and have been encouraged by others to make this vicious attack on her business and reputation." Susanna Quail, co-counsel for the proposed class action lawsuit against Lucion, says the case highlights deep flaws in Canada's immigration system. The system is "so prone to exploitation and preying on vulnerable people," Quail said. Medellin says he met Lucion at a time of uncertainly. He arrived in Vancouver in August 2019 on a visitor visa. Medellin had visited the city when he was 15 and was staying with friends in town. Then the COVID-19 pandemic began. Medellin said he had apprehensions about returning home, fearful he would spread the virus to his mother and family. "I considered myself a visitor that was stranded in Canada," Medellin said in a phone interview from Mexico City. Over time, Medellin said, he began working construction jobs to make ends meet, getting paid in cash. He knew it was illegal, he said, and felt ashamed for going around the law. "I know I was doing that illegally. I don't want people in Canada to get me wrong. We are proud of working very hard, but shameful at the same time because of being illegal. It's a sentiment that is not very easy to communicate," Medellin said. "We feel ashamed because we really respect the country. It could sound a little contradictory." Medellin said a job site supervisor recommended he see Lucion. He remembers sitting in the waiting room of her consulting firm with between 10 and 12 other people, mostly Latin American. He said they received a presentation -- translated by an interpreter into Spanish -- about a new program, which Lucion said had been opened to all migrants in response to the COVID-19 pandemic regardless of their legal status in the country. Medellin said Lucion told them she had special knowledge of the program, which is why it was not publicly advertised. In her filed court response, Lucion said those meetings happened but argued she had only promoted existing and legitimate immigration programs into Canada. In the chaos of the early COVID-19 pandemic, the federal government had implemented policy changes aimed at helping migrant workers stay in the country, including temporary measures giving migrant workers more time to restore temporary residence status. Her statement of defence says she had an "honestly held belief" that applicants would be legally eligible for the programs they applied for. Medellin said Lucion told the crowd the process cost $7,000 -- half to start, and the other half upon completion. He says she urged them to apply soon, since spots were limited. Medellin was suspicious but desperate. He had a dream of getting legal status in Canada and eventually going to graduate school at the University of British Columbia to study art history. "My impression was, if something good comes out from this, I do not want to be out of it," Medellin said. He described himself as holding out the money with one hand while using the other to cover his eyes and turn his head away. Quail says the roughly 50 other migrant workers who have come forward describe a similar pattern: an information session of eight to 12 people, a request for cash, then silence. "For some people, it appears she took their money and did nothing. And then for some people she took their money and did other kinds of applications they weren't actually eligible for," Quail said. Medellin alleges Lucion had promised she could secure a visa in as little as two weeks. But his messages to her went largely unanswered. At one point, he said Lucion told him she could not explain the delay because he did not speak English, a language he commanded well enough to conduct a 45-minute interview with The Tyee. Concerns about the promises began to spread through the Mexican community in the Lower Mainland. Medellin said he hosted information sessions with workers in Stanley Park and the issue was discussed on social media. Court filings show Lucion sued two separate people she alleged had defamed her in a Facebook group. She also sued three other people after a tense office meeting, where one of the defendants claimed Lucion had threatened to have the three of them deported. None of those cases appear to have moved forward in the court system beyond statements of defence. It is not the first time Lucion took court action against a critic. In 2017, she sued a fellow member of a Filipino volleyball team for, among other things, "purposely hitting the ball aiming to the plaintiff." Word about the allegations reached Berenice Díaz Ceballos, Mexico's consul general in Vancouver, who said the consulate began to direct affected migrants towards Quail's legal team. "Some had to leave Canada, because there were no options and they were in a risky situation. They didn't have status anymore," Ceballos said in a November interview. She worries some people may not know about the lawsuit. "Here you are deciding or obstructing the opportunities of real people, of real families," Ceballos said. "When humans are involved, it's a very sensitive issue." Quail believes the case highlights longstanding problems with the Canadian immigration system that place desperate, vulnerable workers at risk. Many economic migrant workers coming to the country are on strict closed permits, allowing them to work only for a specific employer in a specific location at a specific time. Getting an open work permit is considerably more difficult. "At each step of this process, we have people who are very vulnerable to being scammed by consultants, because people are really desperate for a way to get status in Canada. They hear it and they want to believe it. If you can get status in Canada, it's life-changing," Quail said. Immigration consultants in Canada do have a regulatory college. In July, its disciplinary council passed a decision to indefinitely suspend Lucion's right to practise after it received 11 complaints about her in the span of two years. But Quail believes oversight of consultants is lax compared to other professions, like lawyers. On the other hand, expectations of would-be immigrants are strict. Amanda Aziz is Quail's co-counsel on the lawsuit and a lawyer at the Migrant Workers Centre. She says many of her clients are often stuck untangling themselves from legal trouble after an issue with an immigration application or being misrepresented by a consultant. "For the most part, people aren't coming to Canada and enjoying living here without status and just being flagrant about the immigration system," Aziz said. "For the most part, people are trying very hard to make sure their status is legal, working very hard to make sure they can get their next status. We make it difficult, and when a mistake is made, we make it very hard for them to fix." In October 2021, months after he met Liza Lucion, Medellin got a visit from immigration officials. He was not deported, he said, but was told he had to leave the country, an order he complied with. He is now back in Mexico City. He is currently appealing a rejected application for a student visa in Canada. He hopes the lawsuit, if it is certified and successful, will help clear his name with Canada's immigration officials. "We know that we could get money out of the class action, but we're not really concerned about this… Money is not important to us," Medellin said. "We want justice." [GN] MASTERCARD INC: Merricks to Launch Campaign for GBP17-Bil. Claim ---------------------------------------------------------------- John Hyde, writing for The Law Society Gazette, reports that representatives leading the GBP17bn consumer claim against Mastercard will launch an 'unprecedented' marketing campaign to attract millions of people to join the action. Following his success in the Court of Appeal, lead claimant Walter Merricks said this will represent the 'largest public noticing campaign in UK legal history'. Funders will pump GBP600,000 into the print and digital advertising push targeting national, regional and social media channels. The claim relies on a finding by the European Commission that Mastercard imposed unlawful fees on transactions processed through its network. The Competition Appeal Tribunal ruled earlier this year that anyone living in the UK when the claim form was filed in 2016 should be part of the class action. The Court of Appeal dismissed an appeal against the landmark decision to allow about three million now-dead people to be included. Merricks said some 46 million people are in line for a pay-out of up to GBP300 each and he stressed that no-one will have to pay anything or risk anything to join. He added: 'Totalling up to GBP17bn, it's the biggest claim in UK legal history. Not surprisingly 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.' Merricks is being advised on the case by litigation firm Willkie Farr & Gallagher. Its team is led by partners Boris Bronfentrinker and Nicola Chesaites. Competition silks Marie Demetriou KC and Victoria Wakefield KC of Brick Court Chambers are instructed to represent the class of UK consumers. The 'noticing campaign' has been undertaken by class action administrators Epiq and its global noticing arm Hilsoft Notifications. The case is the first mass consumer claim brought under the collective action regime introduced by parliament in the Consumer Rights Act 2015. The legislation was designed to enable collective actions to be brought by a class that has suffered loss due to competition law breaches. A Mastercard spokesperson said: 'This case isn't about helping consumers. This flawed claim is being pushed by lawyers and their financial backers trying to make money for themselves and is likely to take years to conclude. We'll continue to fight it and are confident that, once the facts are presented in court, the case will be thrown out.' [GN] MELVIN PETERSON: Wilson Files Suit in D. Minnesota -------------------------------------------------- A class action lawsuit has been filed against Melvin Peterson, et al. The case is styled as Edward William Wilson, Linnea Gatton, on behalf of themselves and all others similarly situated v. Honorable Melvin Peterson, Hennepin County Probate Judge, and their successors in office; Chris Stange, William Dorsey, Jeff Spartz, Thomas Ticen, Richard Kremer, John Derus, E. R. Robb, Sam Sivanich, Nancy Olkon, Golden Valley Health Center, Inc., Hennepin County Probate Court, Hennepin County Board of Commissioners, Hennepin County, Arthur Noot, individually and in his capacity as Commissioner of the Department of Public Welfare of the State of Minnesota, and their successors in office, Case No. 4:78-cv-00153-WMW (D. Minn., Dec. 12, 2022). The nature of suit is stated as Other Civil Rights for the Civil Rights Act. Hennepin County -- https://www.hennepin.us/ -- is a county in the U.S. state of Minnesota.[BN] The Defendants are represented by: Kelly K. Pierce, Esq. HENNEPIN COUNTY ATTORNEY'S OFFICE 300 South 6th Street, Suite A2000 Minneapolis, MN 55487 Phone: (612) 348-5488 Fax: (612) 348-8299 Email: kelly.pierce@hennepin.us META PLATFORMS: C.C. Suit Removed to M.D. North Carolina -------------------------------------------------------- The case styled as C.C., individually and on behalf of similarly situated persons v. Meta Platforms, Inc. formerly known as: Facebook, Inc., Novant Health, Inc., Case No. 22-CVS-4687 was removed from the Forsyth County Superior Court, to the U.S. District Court for the Middle District of North Carolina on Nov. 10, 2022. The District Court Clerk assigned Case No. 1:22-cv-00970-UA-JEP to the proceeding. The nature of suit is stated as Other P.I. Meta Platforms, Inc. -- https://investor.fb.com/home/default.aspx -- doing business as Meta and formerly named Facebook, Inc., and TheFacebook, Inc., is an American multinational technology conglomerate based in Menlo Park, California.[BN] The Defendant is represented by: Gabriel G. Snyder, Esq. Janet Ward Black, Esq. WARD BLACK LAW 208 W. Wendover Ave. Greensboro, NC 27401 Phone: (336) 510-2152 Fax: (336) 510-2169 Email: gsnyder@wardblacklaw.com jwblack@wardblacklaw.com The Defendant is represented by: Lauren R Goldman, Esq. GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, NY 10166-0193 Phone: (212) 351-4000 Email: lgoldman@gibsondunn.com - and - Matthew T. Martens, Esq. WILMER CUTLER PICKERING HALE AND DORR, LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 Phone: (202) 663-6921 Email: matthew.martens@wilmerhale.com - and - Trenton James Van Oss, Esq. GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 Phone: (202) 887-3716 Email: tvanoss@gibsondunn.com - and - Jennifer K. Van Zant, Esq. Jim W Phillips, Jr. BROOKS PIERCE MCLENDON HUMPHREY LEONARD P.O. BOX 26000 230 N. ELM ST., STE 2000 Greensboro, NC 27420 Phone: (336) 373-8850 Email: jvanzant@brookspierce.com jphillips@brookspierce.com - and - David Balser, Esq. KING & SPALDING 1180 Peachtree St. NE, Suite 1700 Atlanta, GA 30309 Phone: (404) 572-5109 Email: dbalser@kslaw.com - and - Marisa Maleck, Esq. KING & SPALDING 1700 Pennsylvania Ave., NW Washington, DC 20006 Phone: (202) 626-9117 Email: mmaleck@kslaw.com - and - Robert Griest, Esq. KING & SPALDING 1180 Peachtree Street Atlanta, GA 30309 Phone: (404) 572-2824 Email: rgriest@kslaw.com - and - Steven Wilson Quick, Esq. BROOKS PIERCE MCLENDON HUMPHREY & LEONARD, LLP POB 1800 Raleigh, NC 27602 Phone: (919) 839-0300 Email: wquick@brookspierce.com MILTON ADAIR TINGLING: Justin Files Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Milton Adair Tingling. The case is styled as Mr. Daudi Justin, and all others similarly situated, Community Service Society v. Milton Adair Tingling, in his official capacity as County Clerk of New York County and Commissioner of, Case No. 1:22-cv-10370 (S.D.N.Y., Dec. 8, 2022). The nature of suit is stated as Other Civil Rights for the Civil Rights Act. Milton Adair Tingling was Clerk of County of New York in the State of New York.[BN] The Plaintiffs are represented by: Perry Grossman, Esq. NEW YORK CIVIL LIBERTIES UNION 125 Broad St. 19th Floor New York, NY 10004 Phone: (212) 607-3300 Fax: (212) 607-3318 Email: pgrossman@nyclu.org N.Y.C. BICYCLES: Rodriguez Files ADA Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against N.Y.C. Bicycles, Inc. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. N.Y.C. Bicycles, Inc., Case No. 1:22-cv-07510 (E.D.N.Y., Dec. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. NYC Bicycles -- https://www.bicyclesnyc.com/ -- is a bikes, electric bike shop serving New York City.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com NATIONAL VISION: Maisnier Suit Removed to N.D. California --------------------------------------------------------- The case captioned as Paul F. Maisnier, individually and on behalf of all others similarly situated v. NATIONAL VISION, INC. dba AMERICA'S BEST CONTACTS AND EYEGLASSES; and DOES 1-50, inclusive, Case No. 22CV018224 was removed from the Superior Court of the State of California for the County of Alameda, to the United States District Court for the Northern District of California on Dec. 9, 2022, and assigned Case No. 3:22-cv-07859. The Complaint alleged causes of action for: failure to pay wages including overtime as required by Labor Code; failure to provide meal periods as required by Labor Code and IWC Wage Orders; failure to provide rest periods as required by Labor Code; failure to pay timely wages required by Labor Code; failure to provide accurate itemized wage statements as required by Labor Code; failure to indemnify necessary business expenses as required by Labor Code; Unlawful Deductions from Wages; Violation of Business & Professions Code.[BN] The Defendants are represented by: Coby M. Turner, Esq. Phillip J. Ebsworth, Esq. SEYFARTH SHAW LLP 400 Capitol Mall, Suite 2300 Sacramento, CA 95814-4428 Phone: (916) 448-0159 Facsimile: (916) 558-483 Email: cturner@seyfarth.com pebsworth@seyfarth.com NEW YORK, NY: Court Dismisses Without Prejudice Goring v. Carter ---------------------------------------------------------------- Judge Ronnie Abrams of the U.S. District Court for the Southern District of New York dismisses the case, LASALLE GORING, Plaintiff v. N.Y.C./D.O.C./V.C.B.C. WARDEN CARTER; N.Y.C./D.O.C./V.C.B.C. CAPTAIN GUERRA; 3-AA HOUSING UNIT CAPTAIN; N.Y.C./D.O.C./V.C.B.C. CAPTAIN JOHN DOE INTAKE SUPERVISING CAPTAIN; N.Y.C./D.O.C./V.C.B.C. CAPTAIN HORTON, Defendants, Case No. 21-CV-8989 (RA) (S.D.N.Y.), without prejudice. Goring, proceeding pro se, filed the action alleging that his constitutional rights were violated while in the custody of the New York City Department of Correction. On Oct. 19, 2021, Goring, along with lead pro se Plaintiff Michael Lee and several other Individual Plaintiffs, filed a putative class action complaint alleging that his constitutional rights were violated while he was in custody at the Vernon C. Bain Center ("VCB Center") on Rikers Island. On Nov. 1, 2021, Chief Judge Swain severed the original action into individual cases, including Goring's. On Dec. 9, 2021, the Court directed the New York City Law Department to identify the Defendant "Captain John Doe" on duty during the day of the complained of conduct, and ordered the Plaintiff to file an amended complaint, naming the newly identified individual as a defendant, within 30 days of receiving that information. On March 7, 2022, the defense counsel notified the Court that three captains had been identified and that she had served Plaintiff with their names by mail at the VCB Center. The next day, defense counsel informed the Court that the Plaintiff was no longer in custody of the Department of Correction. On March 10, 2022, the Plaintiff failed to appear for an initial case management conference with Magistrate Judge Parker. That same day, Judge Parker issued a briefing schedule on the Defendants' motion to dismiss, and instructed the Defendants to obtain Plaintiff's updated contact information from the Department of Correction and mail him a copy of the order. On March 23, 2022, an order from the Court dated Feb. 9, 2022 and mailed to the Plaintiff's VCB Center address, was returned as undeliverable with no forwarding address. On April 22, 2022, the defense counsel notified the Court that she had communicated with the Plaintiff by phone and email "for the first time" and had informed the Plaintiff that he was ordered to amend the complaint and to update the Court with his address. On April 29, 2022, the Defendants filed their motion to dismiss. On Aug. 8, 2022, after the Plaintiff failed to amend his complaint or otherwise respond, the Court directed him to submit his opposition by Aug. 30, 2022, and reminded him of his obligation to notify the Court of any change of address -- and that the Court may dismiss the action if he fails to do so. On Sept. 1, 2022, the Court again issued an order directing the Plaintiff to file an opposition, or a letter indicating that he intends to pursue the action, and warned that failure to do so could result in dismissal. After receiving no communication from the Plaintiff, on Oct. 17, 2022, the Court issued a final order, warning that if the Plaintiff fails to respond to the Court's Sept. 1, 2022 order by Nov. 11, 2022, the Court will dismiss the action for failure to prosecute. The Plaintiff did not comply with that order; indeed, he has not responded or communicated with the Court since the complaint was filed. Judge Abrams finds that the Plaintiff's non-compliance warrants dismissal. On balance, however, and in light of the Plaintiff's pro se status, he concludes that a "less drastic" sanction than dismissal with prejudice is appropriate. Any prejudice to the Defendants has been minor: the case is at an early stage, and based on the record, it does not appear that the delay "caused any particular, or specially burdensome, prejudice to defendants beyond the delay itself." Moreover, the action has not substantially burdened the Court's docket: the Court has not decided any substantive motions, presided over any discovery, or scheduled trial. Under these circumstances, Judge Abrams finds that dismissal without prejudice is a less harsh, and more appropriate, sanction for the Plaintiffs' failure to communicate with the Court or to comply with the Court's orders. Accordingly, the action is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of Court is respectfully directed to terminate all pending motions and to close the case. A full-text copy of the Court's Dec. 9, 2022 Order is available at https://tinyurl.com/2fxb6pea from Leagle.com. NEW YORK, NY: Olivierre Files Suit in N.Y. Cty. Clerk ----------------------------------------------------- A class action lawsuit has been filed against The Board of Education of The City School District. The case is styled as Mawuli M. Olivierre, and similarly situated employee v. The Board of Education of The City School District, Case No. 101178/2022 (N.Y. Cty. Clerk., Dec. 12, 2022). The case type is stated as "Supreme Court General Index Reg. (General)."[BN] The Plaintiff appears pro se. NEW YORK, NY: Taxi Drivers Sue Over Post-Arrest License Suspensions ------------------------------------------------------------------- David Meyer, writing for New York Post, reports that more than 5,600 taxi and for-hire vehicle drivers with arrests on their records claim the Taxi and Limousine Commission unjustly suspended their licenses as their criminal cases played out in court -- and are now seeking damages, advocates told The Post. The drivers' suspensions -- which occurred between 2003 and 2020 -- were ultimately resolved, but only after months out of work and an arduous legal process, according to the impacted cabbies. A federal judge ruled in 2019 that the TLC's process for appealing license suspensions was unconstitutional because the agency declined to consider "evidence of a driver's ongoing danger to health and public safety." Such evidence must now be considered as a result. Since then, the portion of suspensions that get reversed has increased from virtually none to 65%, said Daniel Ackman, the lead attorney on the class-action suit. "The suspensions have all been resolved by other means by now, but what they do have to do is pay damages to people that should not have been suspended at all, which to my mind is almost all of them," Ackman said, referring to TLC officials. "The TLC has no process for making anyone whole." For-hire advocates estimate over 20,000 drivers could be eligible for damages, which the judge, Richard Sullivan, now of the New York City-based Second Circuit Court of Appeals, has ordered to be adjudicated separately from the main lawsuit. At least 5,600 plaintiffs in the class-action have signed up for hearings in Manhattan federal court to determine what if any monetary damages they are owed, advocates said. Among them is Eddison Damian, 36, who said he spent three weeks out of work in 2018 after TLC suspended his license and vehicle plate over an arrest in a case that was quickly dismissed. It's unclear what Damian, of Astoria, Queens, was charged with, but he said he was taken into custody after a man robbed and assaulted him at a convenience store -- and then released a day later when a judge heard the case. "The next day they said, 'Apologies, Mr. Damian. This should have never happened. Go home,'" he recalled. "TLC, right away they suspended my license. My wife was getting her bachelor's degree. I was the only income in the house." Other drivers seeking to sign onto the effort have until Jan. 13, said New York Taxi Workers Alliance Director Bhairavi Desai. "These hearings, they were just a sham," Desai said. "The TLC did not conduct proper hearings to determine whether or not someone actually met the criteria under the rule to have suspension." The TLC did not comment. [GN] NEW YORK: Asks Permission to File Up to 30 Pages Memorandum ----------------------------------------------------------- In the class action lawsuit captioned as Disability Rights New York (DRNY ), et al. v. New York State, et al., Case No. 1:17-cv-06965-RRM-MMH (E.D.N.Y.), the Defendants ask permission to serve and later file with the Court a memorandum up to 30 pages in length. Counsel for DRNY have consented to this request. Defendants thank the Court for its consideration. Pursuant to the Court's Scheduling Order dated September 19, 2022, the Defendants will be serving their memorandum in opposition to the Plaintiff's motion for class certification on Monday, December 12, 2022. Due to the number and complexity of the issues presented by the motion, Defendants' opposition is expected to be 30 pages, which is five pages more than the presumptive limit of 25. A copy of the Defendants' motion dated Dec. 9, 2022 is available from PacerMonitor.com at https://bit.ly/3UNnE21 at no extra charge.[CC] The Defendants are represented by: Letitia James, Esq. James Miro, Esq. STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL WWW.AG.NY.GOV 28 Liberty Street NEW YORK, NY 10005 Telephone: (212) 416-8610 E-mail: James.Mirro@ag.ny.gov NEW YORK: Bertrand Sues Over Unpaid Overtime Wages -------------------------------------------------- Troy D. Bertrand, individually and on behalf of all other similarly situated employees v. DEPARTMENT OF EDUCATION, ARCHDIOCESE OF NEW YORK, CATHOLIC COMMUNCAL FUND OF THE ARCHDIOCESE OF NY, INC., CATHOLIC CHARITIES OF THE ARCHDIOCESE OF NEW YORK, CATHOLIC CHARITIES COMMUNITY SERVICES, ARCHDIOCESE OF NEW YORK, and OUR LADY OF ANGELS CHURCH, Case No. 1:22-cv-10445 (S.D.N.Y., Dec. 9, 2022), is brought seeking damages and other appropriate relief for their claims, including violations of the Fair Labor Standards Act, New York Labor Law, as well as the supporting New York State Department of Labor Regulations for the Defendants' failure to pay the Plaintiff and Class Members overtime compensation, straight-time minimum wage compensation, and comply with timeliness of pay, notice, and record keeping requirements. During his workday, the Plaintiff was allotted 1 hour for breaks and meals, which was supposed to result in a standard 8 hour workday. However, due to the administrative requirements of the Plaintiff's employment following his promotion, the Plaintiff consistently worked in excess of 40 hours per week throughout his employment with the Defendants. As a result of working from home in addition to his regular on-site work hours, the Plaintiff worked an additional of 10 to 21 hours overtime each week, depending on the week. The Defendants failed to pay the Plaintiff any straight-time or overtime compensation for all hours worked in excess of 40 hours per week. The Plaintiff was a non-exempt employee entitled to overtime compensation for all hours worked in excess of 40 hours per week, says the complaint. The Plaintiff was employed by the Defendants as a maintenance worker, custodian, and porter. ADNY DOE is a not-for-profit organization with a principal place of business located in Bronx, New York.[BN] The Plaintiff is represented by: Gregory A. Nahas, Esq. PARDALIS & NOHAVICKA, LLP 950 Third Avenue, 11th Floor New York, NY 10022 Phone: (212) 213-8511 Fax: (347) 897-0094 Email: Greg@pnlawyers.com NEWAGE INC: Bids for Lead Plaintiff Appointment Due February 6 -------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Dec. 7 disclosed that 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. Attorney Advertising. Prior results do not guarantee a similar outcome. CONTACT: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40thFloor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] NORTH CAROLINA: Faces Class Action Over Foster Children Abuse ------------------------------------------------------------- Matthew Prensky, writing for Wilmington StarNews, reports that Crystal Klunk's daughter suffers inside one of North Carolina's psychiatric residential treatment facilities -- a place that resembles solitary prison confinement more than a care facility meant to help kids with mental health issues, the mom says. Spotty supervision, sporadic treatment and only occasional schooling have been part of the girl's experience, Klunk said. They have not seen their daughter, who first tried to kill herself at age 10, in months. The staff at their daughter Alexis' center reportedly has not updated Klunk on the teen's status. "She needs to be in a place that is able to keep eyes on her and needs to know what's going on, and they don't," said the mother from Canton, North Carolina. "That's consistent with any PRTF. I can't tell you that any PRTF has been good, because if they were, our kid wouldn't still be in one." A six-month investigation in 2021 by North Carolina and Virginia journalists in the USA TODAY Network featured Klunk and other families, plus shocking details of neglect and abuse inside these locked centers. Now, citing the "Locked Away" reporting series, a potentially landmark class-action lawsuit has been filed in federal court against the state of North Carolina. The lawsuit aims to reduce North Carolina's focus on these institutions and to shift many children to more appropriate support services based in their home communities. The Middle District Court filing by Disability Rights North Carolina, the state NAACP and children themselves cites gruesome allegations of kids subjected to physical, psychological and sexual abuse at these psychiatric centers -- reports that were brought to light in the multi-part Locked Away investigation. Plaintiffs claim there is a systemic effort by North Carolina health and human services officials to warehouse foster children with mental health disabilities in these locked wards. The state's decisions have failed vulnerable children and wasted taxpayer money on what is a punishing and expensive system of centers, the filing says. The plaintiffs, which include four children and their guardians, want North Carolina to provide adequate and appropriate services in the community for foster kids who need mental health care. It will take an investment in a web of services at multiple stages of a kid's mental health journey -- and could be financed in part with ample dollars the state is currently sending to PRTFs. The lawsuit alleges children inside PRTFs are confined to prison-like settings "under the care of a poorly trained and understaffed workforce, where they are subject to broken bones, sprains, bruises, and dangerous physical and chemical restraints; withstand sexual and physical abuse, bullying, and hate speech by both youth and staff; and face mental health deterioration and cocktails of strong psychotropic medications." "DHHS is failing hundreds of children with disabilities in foster care, warehousing them in dangerous, expensive, damaging institutions," said Virginia Knowlton Marcus, chief executive officer of Disability Rights North Carolina. "These children deserve and have the right to a family and place in our communities where they can meet their full potential. Instead, they receive institutionalization and irreparable harm to their childhood and wellbeing." The state Department of Health and Human Services said it is reviewing the suit, but that beyond this filing, North Carolina government is aware it needs to improve help for these children with complex mental health issues. The head of DHHS is the named defendant in the lawsuit, representing the state. An emailed response from DHHS said it was undertaking a few planning steps and making a new division in the department. Also, it listed some future needed action, from the state's perspective: "More quality placement options for children with complex behavioral health needs. The number of kinship and foster families, acute care options, and high-quality, therapeutic residential facility placements is not enough to meet demand." "Access to quality community-based crisis, treatment, and prevention services in all 100 counties." "More staff and better pay for workers who serve these children via local and state DSS agencies, service providers, and facilities." Locked away investigation:Punching, predators, neglect: Kids suffer inside dismal North Carolina psychiatric centers Failing children:Psychiatric centers fail many children. North Carolina keeps spending gobs of money on them. Lawsuit targets horrifying reports of abuse in state system The new lawsuit alleges state officials are aware of the dangers children face inside these centers, yet they've more than doubled North Carolina's use of the facilities since 2010. At one PRTF in Brunswick County, Carolina Dunes Behavioral Health, a 12-year-old boy had his wrist fractured during an encounter when the staffer forced the child up against a door. The facility didn't report the child's injury initially. The boy only was taken to the hospital after four days had passed, according to investigative reports. A child at another PRTF threw milk, provoking a staff member to throw it back and take away the child's food as punishment for her behavior, according to allegations in the lawsuit. The confrontation upset the child, and the staff dealt with that dangerously. "The staff pulled the child's head down by her braids and shoved her face into a pillow, even though this type of life-threatening prone restraint was forbidden by DHHS over ten years ago," according to the lawsuit. As of November 2021, more than 500 children involved in the state's child welfare system had been placed in a PRTF during the previous 12 months, according to the lawsuit. PRTFs are designed to provide intensive, temporary treatment of a child's mental health. However, the state of North Carolina uses the facilities "as a long-term 'place to live,'" where children stay for extended periods of time. In the case of the Klunks' daughter, Alexis, she first went to a PRTF in 2015. The Klunks took Alexis in as a therapeutic foster child when she was 3. At 6, they adopted her. Klunk and her husband had no plans of adopting a child, but when they met Alexis, it felt as though she belonged in the family. She's bounced around PRTFs both in North Carolina and elsewhere consistently since 2019. Alexis is still at a center, which says it works tirelessly to ensure all children are healthy and that families are thriving. Alexis would not be eligible for the class-action because she was adopted by the family and is not in state custody, but her story was one that helped USA TODAY Network bring realities of these psychiatric centers to light. The USA TODAY Network's North Carolina newsrooms also reached out in 2021 to competitor McClatchy newspapers in Charlotte and Raleigh so that the series could support even more statewide reporting. Those newsrooms advanced the reporting on PRTFs in 2021 with added local interviews and storytelling. News outlets have continued to follow the statewide health crisis first fully documented by Locked Away and its reporting team featuring veteran investigator Fred Clasen-Kelly. We contacted an expert not associated with the class-action lawsuit for context about these types of legal filings. Jessica Feierman, senior managing director of the Juvenile Law Center, said similar litigation can help force an issue and prevent harm that is happening. "Young people tend to have a really hard time having their voices heard, and they're uniquely vulnerable when they're placed under state custody," she said. "The law can play a really important role in discovering what's happening to young people behind closed doors, lifting up their voices and having them heard, and of course creating legal protections to protect their rights." Feierman said it takes more than a court action to fashion a successful environment -- it's a community decision about caring for children. "In the justice system and the child welfare system, what we see is that having young people in large locked facilities is a failed model, and what they really need is comprehensive supports in their homes and communities," she said. 'Locked Away' investigation cited in lawsuit Using dozens of expert interviews, an extensive review of investigative reports and discussions with survivors and families, the USA TODAY Network' s Locked Away series highlighted a flawed system of public care that repeatedly fails children. The investigation revealed that North Carolina spends more than $100 million each year to send children to psychiatric residential treatment facilities with no proof that these centers work. The investigation found that center workers used physical restraints, seclusion and other inventions hundreds of times, despite experts saying those tactics should be used sparingly to avoid traumatizing children. In some cases, PRTF staff used methods that were banned, or used chemical interventions that DHHS staff admitted it didn't monitor. The Locked Away investigation also discovered children spent 184 days in PRTFs on average, more than twice the stated goal, and that at least 227 kids were sent to facilities in other states, including centers with histories of alleged abuse and/or mistreatment. "It feels like they get these kids in there, and instead of providing treatment, they're just housing kids," Klunk said. "That's not what these children need. They don't need to be in housing. They need treatment." [GN] NURSELOOP USA: Johnson Files Suit in Cal. Super. Ct. ---------------------------------------------------- A class action lawsuit has been filed against Nurseloop USA, et al. The case is styled as Keaishi Johnson, on behalf of herself and others similarly situated v. Nurseloop USA, Nurseloop, Inc., Pierre Martin Reyes, Does 1-20, Case No. 34-2022-00331126-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Dec. 8, 2022). The nature of suit is stated as "Other Employment - Civil Unlimited." Nurseloop -- https://www.nurseloopusa.com/ -- is a mobile application based healthcare staffing medium that helps both nurses and facilities.[BN] The Plaintiff is represented by: Ashkan Shakouri, Esq. SHAKOURI LAW FIRM 11601 Wilshire Blvd Fl 5 Los Angeles, CA 90025 Phone: (310) 575-1827 OAKHURST PARTNERS: Fagnani Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Oakhurst Partners, LLC. The case is styled as Mykayla Fagnani, on behalf of herself and all other persons similarly situated v. Oakhurst Partners, LLC, Case No. 1:22-cv-10491 (S.D.N.Y., Dec. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Oakhurst Partners, LLC was founded in 2003. The Company's line of business includes manufacturing textile products.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal PROVIDENT BANCORP: Rosen Law Firm Investigates Securities Claims ---------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, continues to investigate potential securities claims on behalf of shareholders of Provident Bancorp, Inc. (NASDAQ:PVBC) resulting from allegations that Provident may have issued materially misleading business information to the investing public. SO WHAT: If you purchased Provident securities you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. The Rosen Law Firm is preparing a class action seeking recovery of investor losses. WHAT TO DO NEXT: To join the prospective class action, go to https://rosenlegal.com/submit-form/?case_id=10252 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. WHAT IS THIS ABOUT: On November 15, 2022, Provident filed a Form NT 10-Q Notification of inability to timely file Form 10-Q for the quarter ended September 30, 2022. The Form NT 10-Q stated the delay was due to "estimates that [Provident] will report net loss of approximately $27.5 million for the quarter ended September 30, 2022, compared to net income of $5.1 million for the quarter ended September 30, 2021." On this news, Provident's stock price fell $2.20, or over 21%, to close on November 16, 2022 at $7.90 on unusually high trading volume. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources, or any meaningful peer recognition. Many of these firms do not actually litigate securities class actions. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] R.J.D. WILLIAMS: Court Certifies Class Action Over School Abuse --------------------------------------------------------------- Jessie Anton, writing for CBC News, reports that after more than a decade, a class-action lawsuit against the now-closed R.J.D. Williams Provincial School for the Deaf in Saskatoon has been certified. In 2009, more than 50 former students formally signed on to the suit, alleging they were physically, sexually and psychologically abused at the school between 1955 and 1991. Last month, a Saskatchewan Court of King's Bench judge certified the class action with three plaintiffs -- referred to only by initials -- now listed on the court documents. "A class proceeding would be a fair, efficient and manageable method of advancing the claim of the class members in a meaningful way and the relative advantages of a class action outweigh the other alternatives," said Saskatchewan Chief Justice Martel Popescul in the Nov. 9 decision. Tony Merchant, the plaintiff's lead counsel on the case, said this certification is a long time coming for many of his clients. With many students having lived at the school, often throughout holidays, Merchant said the institution had complete control over their lives, making it especially difficult for them to raise concern. "The students really were the perfect victims in a sense. They couldn't pick up a telephone and complain to their families because they couldn't talk," he said in an interview with CBC News "It was really hard for them." Despite only a trio of plaintiffs listed on the current court documents, Merchant said his office has received hundreds of calls over the years from former students alleging abuse at the school -- both at the hands of staff and other students -- and he expects more people to come forward. According to court documents, a revised litigation plan is to be served to the defendant -- the Government of Saskatchewan, which ran the school -- within 60 days of the certification for comment. The compensation the complainants are seeking will be on an individual basis, Merchant noted. However, it's his hope the province will come forward with a proposal. "It would be beneficial for [former students] to have the government recognize the wrong and put the hurt behind them, but the compensation is late in their lives in many instances," he said, adding it's possible some initial plaintiffs have died since the suit was filed. In an email to CBC News on Dec. 5, a spokesperson for the Ministry of Justice said the province has "no further comment at this time," as the matter remains before the courts. [GN] RACKSPACE TECHNOLOGY: Q Industries Sues Over Failure to Secure Data ------------------------------------------------------------------- Q Industries, Inc., John Moser, and Dana Moser Wilkinson, individually and on behalf of all others similarly situated v. RACKSPACE TECHNOLOGY, INC., Case No. 5:22-cv-01322-JKP (W.D. Tex., Dec. 12, 2022), is brought for damages brought by the Plaintiffs against the Defendant, for its failure to exercise reasonable care in securing and safeguarding the sensitive, proprietary data of its customers, and its failure to exercise reasonable care to maintain the stable, reliable cloud computing services its customers rely on in conducting their respective businesses. Rackspace's business is predicated on provision of secure and resilient email and cloud storage services because of the sensitivity of the information stored within its hosted Exchange environment, as well as the messaging and calendaring features that make up its core business functions. The Plaintiffs and Class members relied on these services to conduct their business and other related matters. On December 2, 2022, unauthorized parties gained access to Rackspace's servers, disrupting its cloud services and exfiltrating sensitive customer data, including sensitive proprietary information belonging to Plaintiffs (the "Data Breach"). As of the filing of this Complaint, the Plaintiffs and Class members are still unable to access their business email account or propriety data stored on Rackspace's servers, nor do they know when they will be able to access their email or data. Moreover, there has been no assurance offered from Rackspace that the compromised Private Information has been recovered or destroyed. Rackspace only offered its impacted customers free access to Microsoft Exchange Plan 1 licenses on Microsoft 365 for the duration of the Data Breach, which does not guarantee security of the Plaintiffs' Private Information and, as Rackspace itself warned, would make it difficult to preserve data for those with hybrid environments as archives would not be available. Accordingly, the Plaintiffs assert claims for negligence, gross negligence, negligent misrepresentation, breach of express contract, breach of implied contract, breach of confidence, breach of implied covenant of good faith and fair dealing, unfair and deceptive trade practices, breach of implied warranty of merchantability, breach of express warranty of merchantability, unjust enrichment, and declaratory relief, says the complaint. The Plaintiff Q Industries is a Rackspace customer and uses Rackspace services in the usual course of its business. Rackspace Technology, Inc. is a San Antonio, Texas based cloud computing company, with a principal place of business located in SanAntonio, Texas.[BN] The Plaintiffs are represented by: Jorge A. Herrera, Esq. Javier L. Herrera, Esq. Laura E. Gutierrez Tamez, Esq. Frank Herrera, Jr., Esq. THE HERRERA LAW FIRM, INC. 1800 W. Commerce Street San Antonio, Texas 78207 Phone: (210) 224-1054 Facsimile: (210) 228-0887 Email: jherrera@herreralaw.com javier@herreralaw.com ltamez@herreralaw.com fherrera@herreralaw.com - and - Jason S Rathod, Esq. Nicholas A Migliaccio, Esq. MIGLIACCIO & RATHOD LLP 412 H Street NE Washington, DC 20002 Phone: (202) 470-3520 Fax: (202) 800-2730 Email: jrathod@classlawdc.com nmigliaccio@classlawdc.com - and - Robert Mackey, Esq. LAW OFFICES OF ROBERT MACKEY P.O. Box 279 Sewickley PA 15143 Phone: 412-370-9110 Email: bobmackeyesq@aol.com REALPAGE INC: Bohn Sues Over Conspiracy to Fix Housing Prices ------------------------------------------------------------- Christopher Bohn, Cameron Pond, and Destinee Sanders, individually and on behalf of all others similarly situated v. REALPAGE, INC.; GREYSTAR REAL ESTATE PARTNERS, LLC; LINCOLN PROPERTY CO.; FPI MANAGEMENT, INC.; MID-AMERICA APARTMENT COMMUNITIES, INC.; AVENUE5 RESIDENTIAL, LLC; EQUITY RESIDENTIAL; CAMDEN PROPERTY TRUST; ESSEX PROPERTY TRUST, INC.; THRIVE COMMUNITIES MANAGEMENT, LLC; SECURITY PROPERTIES INC.; B/T WASHINGTON, LLC d/b/a BLANTON TURNER; and INDEPENDENCE REALTY TRUST, INC., Case No. 2:22-cv-01743 (W.D. Wash., Dec. 9, 2022), is brought arising from the Defendants' conspiracy to fix, raise, maintain, and stabilize rental housing prices. Defendants are RealPage, Inc., the developer of a software platform called "AI Revenue Management" (previously known as "YieldStar"), and several managers of large-scale residential apartment buildings that used RealPage's software platform to coordinate and agree upon rental housing pricing, among other things, throughout the United States. AI Revenue Management works by collecting vast amounts of non-public data from its client property managers regarding lease transactions, rent prices, occupancy levels, and virtually every other possible data point relevant to rent prices. This data is fed into an algorithm, along with additional data collected from RealPage's myriad other data analytics and rental management software products. The algorithm then generates a rental price for each of RealPage's client's available units, which is updated daily. RealPage makes sure all of its clients know that to maximize revenues, they must accept the software's rental price at least 80-90 percent of the time, and RealPage's "Revenue Management Advisors" monitor clients to ensure compliance. As the allegations and evidence set forth below demonstrate, RealPage and the property managers who use its revenue management services constitute a price-fixing cartel, and the revenue growth they have achieved is possible only through coordinated price setting. With the assurance that other cartel members are setting prices using the same algorithm, property managers can allow a larger share of their units to remain vacant while maintaining higher rental prices across their properties, and thereby obtain greater revenue. This strategy is only effective because of the pricing coordination among competing property managers enabled by this cartel, which is why RealPage repeatedly and explicitly emphasizes that for the software to work properly, everyone needs to accept its suggested price at least 80-90 percent of the time. Beyond the anticompetitive exchange of nonpublic and competitively sensitive information among competing property managers, RealPage uses additional mechanisms to facilitate coordination among cartel members and prevent cheating by conspiracy participants. First, by allowing property managers to outsource their rent-setting process, RealPage causes them to consider higher rent prices than they ever would have before. Second, RealPage polices cartel members by applying heavy pressure on them to accept the algorithm's suggested price at least 80-90 percent of the time. The AI Revenue Management service includes more than its rent-setting algorithm. Third, the software also recommends lease renewal dates for its clients' properties. Using RealPage's vast store of data on lease transactions, the algorithm suggests dates that are staggered to avoid temporary periods of oversupply resulting from the natural ebb and flow of the market. This further reduces the incentive for property managers to undercut would-be competitors, which is the strongest during these temporary oversupply periods. Fourth, RealPage facilitates direct information exchanges between competitors and provides opportunities for direct coordination of prices. It hosts online forums, organizes in-person events for its clients, and maintains standing committees of cartel members to advise on pricing strategy. As the property managers acknowledge, they are competitors. Yet, RealPage's clients shared a common goal of increasing rent prices across the board and understood that RealPage—which has been explicit that its aim is to help its clients "outperform the market by 3% to 7%"6—was the means by which to do it. RealPage's clients include many of the nation's largest property managers who often control a majority of rental units in desirable neighborhoods of major cities. The Defendants' price fixing conspiracy is a per se unlawful restraint of trade under Section 1 of the Sherman Act. It has resulted in artificially inflated rent prices and a diminished supply of affordable rental units. Plaintiffs and the Class, who rent in residential markets throughout the United States from property managers that use RealPage's software, paid significant overcharges on rent and suffered harm from the reduced availability of rental units they could reasonably afford, says the complaint. The Plaintiffs paid higher rental prices by reason of the Defendants' violation. RealPage provides software and services to managers of residential rental apartments, including the YieldStar/AI Revenue Management software.[BN] The Plaintiffs are represented by: Steve W. Berman, Esq. Breanna Van Engelen, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Phone: (206) 623-7292 Email: steve@hbsslaw.com breannav@hbsslaw.com - and - Gregory S. Asciolla, Esq. Karin E. Garvey, Esq. Veronica M. Bosco, Esq. Johnny M. Shaw, Esq. DICELLO LEVITT, LLC 485 Lexington Avenue, Suite 1001 New York, NY 10017 Phone: (646) 933-1000 Email: gasciolla@dicellolevitt.com kgarvey@dicellolevitt.com vbosco@dicellolevitt.com jshaw@dicellolevitt.com - and - Brian M. Hogan, Esq. DICELLO LEVITT, LLC Ten North Dearborn Street, Sixth Floor Chicago, IL 60602 Phone: (312) 214-7900 Email: bhogan@dicellolevitt.com RELIABLE POULTRY: Canion Sues Over Failure to Pay Overtime Wages ---------------------------------------------------------------- Jeffery Canion, individually and on behalf of all others similarly situated v. RELIABLE POULTRY LLC, Case No. 5:22-cv-05236-TLB (W.D. Ark., Dec. 12, 2022), is brought under the Fair Labor Standards Act and the Arkansas Minimum Wage Act, for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorneys' fees, as a result of the Defendant's failure to pay Plaintiff and other hourly-paid employees lawful overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff and other hourly-paid employees regularly worked in excess of 40 hours per week throughout their tenure with Defendant. Plaintiff and other hourly-paid employees were not paid one-and-one-half times their base hourly rate for each hour they worked over 40 in a workweek. Instead, the Defendant calculated the overtime rate for the Plaintiff and other hourly-paid employees as beginning at forty-five or fifty hours a week, based on their position. The Defendant violated the FLSA and AMWA by not paying the Plaintiff and other hourly paid employees an overtime rate of one-and-one-half times their regular rate for all hours worked over 40 in a workweek, says the complaint. The Plaintiff was employed as a generator technician from August 2017 until May 2021. Reliable Poultry LLC is a manufacturer and supplier of poultry farm buildings, supplies, and equipment.[BN] The Plaintiff is represented by: Chris Burks, Esq. WH LAW | WE HELP 1 Riverfront Pl. – Suite 745 North Little Rock, AR 72114 Phone: (501) 891-6000 Email: chris@wh.law RINGCENTRAL: Aliav Sues Over Deceptive Advertising and Marketing ---------------------------------------------------------------- Alon Aliav, on behalf of himself and all others similarly situated v. RINGCENTRAL, INC., a, California Corporation; and DOES 1 through 50, Inclusive, Case No. 22STCV38543 (Cal. Super. Ct., Dec. 12, 2022), is brought arising out of the the Defendant's deceptive advertising and marketing of its "Unlimited Services Package" (the "Challenged Service"), in violation of the California's False Advertising Law; as well as California's Unfair Competition Law and the California Legal Remedies Act; and to seek redress for the Defendant's contractual breaches, and for the Defendant's unjust enrichment. The Defendant advertised and marketed, the Challenged Service to consumers and profited from the Challenged Service throughout California and the United States based on the misrepresentations about the Challenged Service's purported advantages, quality, and characteristics. Furthermore, the Defendant owns, controls and oversees the distribution of the Challenged Service. The Challenged Service is purchased by consumers to communicate with others through unlimited phone and SMS texting mediums. Through its uniform marketing and advertising claims, the Defendant falsely advertises the Challenged Service as unlimited. When a consumer sees the Defendant's advertising scheme for the Challenged Service, s/he reasonable relied on the term "unlimited" and believes that purchasing the Defendant's services will include unlimited SMS texting. However, the Defendant's "unlimited services" are not actually unlimited. In reality, the Defendant places restrictions on buyers' SMS texts and constricts consumers to one hundred text messages. Moreover, the Defendant's deceptive advertising is further perpetuated by the fact that the Defendant fails to disclose any notice to consumers that the so-called unlimited service actually entails limits on SMS texts. Hence, the Defendant has made, and continue to make, false, deceptive, and misleading claims and promises to consumers about the characteristics quality and advantages of the Challenged Service in a pervasive, statewide, and nationwide marketing scheme that falsely touts the benefits of the Challenged Service and pricing. Based on the fact that the Defendant's advertising misled the Plaintiff and all others like him, the Plaintiff brings this class action against the Defendant to seek reimbursement of the monetary damages he and the Class Members incurred due to the Defendant's false and deceptive representations about the benefits and value of the Challenged Service. The Plaintiff seeks relief in this action individually and on behalf of all persons statewide in California who used the Defendant's services for common law fraud, intentional misrepresentation, and negligent misrepresentation, says the complaint. The Plaintiff initially purchased the Challenged Service in May 2022. RingCentral is a corporation that provides cloud-based communication and collaboration products and services, including SMS texting.[BN] The Plaintiff is represented by: Shalini Dogra, Esq. DOGRA LAW GROUP PC 2219 Main Street, Unit 239 Santa Monica, CA 90405 Phone: (747) 234-6673 Fax: (310) 868-0170 SCHOLASTIC INC: Rodriguez Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Scholastic, Inc. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. Scholastic, Inc., Case No. 1:22-cv-07508 (E.D.N.Y., Dec. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Scholastic Corporation -- https://www.scholastic.com/home -- is an American multinational publishing, education and media company that publishes and distributes books, comics, and educational materials for schools, parents, and children.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com SHERWIN-WILLIAMS COMPANY: Bagley Suit Removed to C.D. California ---------------------------------------------------------------- The case styled as Brandi Bagley, on behalf of herself and all others similarly situated v. The Sherwin-Williams Company, Case No. 30-02022-01279963-CU-FR-CXC was removed from the Superior Court of California, County of Orange, to the U.S. District Court for the Central District of California on Nov. 10, 2022. The District Court Clerk assigned Case No. 8:22-cv-02061-JVS-ADS to the proceeding. The nature of suit is stated as Other Fraud. Sherwin-Williams Company -- http://www.sherwin-williams.com/-- is an American Cleveland, Ohio–based company in the paint and coating manufacturing industry.[BN] The Plaintiff is represented by: Jeffrey Douglas Kaliel, Esq. KALIELGOLD PLLC 1100 15th Street NW 4th Floor Washington, DC 20005 Phone: (202) 350-4783 Email: jkaliel@kalielpllc.com - and - Sophia Goren Gold, Esq. KALIEL GOLD PLLC 950 Gilman Street Suite 200 Berkeley, CA 94710 Phone: (202) 350-4783 Email: sgold@kalielgold.com The Defendant is represented by: Darren K Cottriel, Esq. JONES DAY 3161 Michelson Drive Suite 800 Irvine, CA 92612 Phone: (949) 851-3939 Fax: (949) 553-7539 Email: dcottriel@jonesday.com - and - Louis A. Chaiten, Esq. JONES DAY 901 Lakeside Avenue Cleveland, OH 44114 Phone: (216) 586-3939 Fax: (216) 579-0212 Email: lachaiten@jonesday.com - and - Sharyl A. Reisman, Esq. JONES DAY 250 Vesey Street New York, NY 10281 Phone: (212) 326-3405 Fax: (212) 755-7306 Email: sareisman@JonesDay.com SINGULARITY FUTURE: Bids for Lead Plaintiff Appointment Due Feb. 7 ------------------------------------------------------------------ WHY: Rosen Law Firm, a global investor rights law firm, on Dec. 11 disclosed that it has filed a class action lawsuit on behalf of purchasers of the securities of Singularity Future Technology Ltd. f/k/a Sino-Global Shipping America Ltd. (NASDAQ: SGLY) between February 12, 2021 and November 17, 2022, both dates inclusive (the "Class Period"). A class action has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than February 7, 2023. SO WHAT: If you purchased Singularity securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the Singularity class action, go to https://rosenlegal.com/submit-form/?case_id=9855 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. 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 7, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources, or any meaningful peer recognition. Many of these firms do not actually litigate securities class actions. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, throughout the Class Period, Defendants made materially false and/or misleading statements and/or failed to disclose: (1) the Company's former Chief Executive Officer ("CEO") Yang Jie's true educational background, that he had an outstanding arrest warrant in China, committed forgery, was the largest shareholder and Vice President of Finance, for a Nasdaq-listed lending company, China Commercial Credit ("CCC"), which failed after reporting massive losses; (2) material related party transactions with SOS Information Technology New York Inc. ("SOS") (where Jie's wife was Vice President) and Rich Trading Co. Ltd USA ("Rich Trading") ; (3) independent director John Levy's long tenure as a director of CCC; (4) the Company lacked adequate internal controls and as a result had a heightened risk of scrutiny and ultimately was subject to a United States Attorney's Office for the Southern District of New York and SEC investigation and action as well as a potential delisting by NASDAQ; and as a result (5) 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 and trajectory of the Company, and were materially false and misleading, and lacked a factual basis. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the Singularity class action, go to https://rosenlegal.com/submit-form/?case_id=9855 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. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select 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. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] SINGULARITY FUTURE: Crivellaro Sues Over Decline in Market Value ---------------------------------------------------------------- Piero Crivellaro, Individually and on behalf of all others similarly situated v. SINGULARITY FUTURE TECHNOLOGY, LTD. F/K/A SINO-GLOBAL SHIPPING AMERICA LTD., YANG JIE, LEI CAO, ZHIKANG HUANG, TUO PAN, XIAOHUAN HUANG, JING SHAN, TIELING LIU, JING WANG, and LEI NIE, Case No. 1:22-cv-07499 (E.D.N.Y., Dec. 9, 2022), is brought on behalf of persons or entities who purchased or otherwise acquired publicly traded Singularity securities between February 12, 2021 and November 17, 2022, inclusive (the "Class Period"), seeking to recover compensable damages caused by the Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934 as a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common shares. Singularity represented itself during the Class Period as global logistics company that pivoted to develop a presence in the blockchain supply management area and distribute, sell and market crypto mining equipment. During the Class Period, Singularity and the Individual Defendants, failed to disclose to investors (a) the CEO's true adverse background; (b) related party transactions; and (3) inadequate internal controls which resulted in United States Attorney's Office for the Southern District of New York and SEC investigations as well as a potential delisting by NASDAQ. As a result of this adverse information, Plaintiffs and the Class were damaged. The statements were materially false and/or misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operations, and prospects, which were known to Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or misleading statements and/or failed to disclose, among other things: (1) Jie's true educational background, that he had an outstanding arrest warrant in China, committed forgery, and was the largest shareholder and VP of Finance for a Nasdaq-listed lending company, CCC, which failed after reporting massive losses; (2) material related party transactions with SOS and Rich Trading; (3) Director John Levy's prior tenure from January 2013 through December 2016 as a director of CCC which failed amidst detailed allegations that Jie, when he was an executive and shareholder in CCC, misappropriated assets; and (4) the Company lacked adequate internal controls and as a result had a heightened risk of scrutiny and ultimately was subject to a United States Attorney's Office for the Southern District of New York and SEC investigation and action as well as a potential delisting by NASDAQ. On May 5, 2022, Hindenburg Research issued its Report about Singularity entitled "Singularity Future Technology: This Nasdaq Listed Company's CEO Is A Fugitive, On The Run For Allegedly Operating A Massive Ponzi Scheme". On this news, Singularity's stock fell 40.63% to close at $4.80 per share on May 5, 2022 on unusually heavy trading volume, damaging investors. It fell further on May 6, 2022 13.21% to close at $4.24 per share. On November 16, 2022, Singularity filed with the SEC its Form 8-K signed by Shan. The November 16, 2022 Form 8-K disclosed governmental investigations of Singularity related to the claims raised by Hindenburg Research on May 5, 2022 and other related matters. On this news, on November 16, 2022, Singularity's stock fell 22.97% to close at $2.09 per share on unusually heavy trading volume, damaging investors. It fell further on November 17, 2022 84.96% to close at $1.13 per share. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common shares, Plaintiff and other Class members have suffered significant losses and damages, says the complaint. The Plaintiff purchased Singularity securities during the Class Period. Singularity is incorporated in Virginia and its head office is located in Great Neck Plaza, New York.[BN] The Plaintiff is represented by: Philip Kim, Esq. Laurence Rosen, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Phone: (212) 686-1060 Fax: (212) 202-3827 Email: pkim@rosenlegal.com lrosen@rosenlegal.com SIRIUS XM: Stipulated Protective Order Entered in Potts Class Suit ------------------------------------------------------------------ In the case, JESSICA POTTS, an individual, on behalf of herself, the State of California, as a private attorney general, and on behalf of all others similarly situated, Plaintiff v. SIRIUS XM RADIO INC., a Delaware Corporation; PANDORA MEDIA, LLC, a Delaware Limited Liability Company; and DOES 1 to 50, Defendants, Case No. 2:21-cv-09755 DMG (KSx) (C.D. Cal.), Magistrate Judge Karen L. Stevenson of the U.S. District Court for the Central District of California, Western Division, enters the Parties' Stipulated Protective Order. The Defendants maintain that discovery in the Action is likely to involve the production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting the litigation may be warranted. Accordingly, the Parties stipulate to and petition the Court to enter the Stipulated Protective Order. The Parties acknowledge that the Stipulated Protective Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. They further acknowledge that the Stipulated Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied when a Party seeks permission from the court to file material under seal. The protections conferred by the Stipulated Protective Order cover not only Protected Material, but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial will be governed by the orders of the trial judge. This Stipulated Protective Order does not govern the use of Protected Material at trial. Even after final disposition of the litigation, the confidentiality obligations imposed by this Stipulated Protective Order will remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition will be deemed to be the later of (1) dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of the Action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. Any Party or Non-Party may challenge a designation of confidentiality at any time that is consistent with the Court's Scheduling Order. If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of the Stipulated Protective Order, and (d) request such person or persons to execute the "Acknowledgment and Agreement to Be Bound." After the final disposition of the Action, within 60 days of a written request by the Designating Party, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. Any violation of this Stipulated Protective Order may be punished by any and all appropriate measures including, without limitation, contempt proceedings and/or monetary sanctions. A full-text copy of the Court's Dec. 9, 2022 Stipulated Protective Order is available at https://tinyurl.com/bdh6wtbe from Leagle.com. Amanda C. Sommerfeld -- asommerfeld@jonesday.com - Donna C. Saadati-Soto -- dsaadatisoto@jonesday.com -- JONES DAY, Los Angeles, CA. Aileen H. Kim -- aileenkim@jonesday.com -- JONES DAY, Irvine, CA, Attorneys for DEFENDANTS SIRIUS XM RADIO INC. and PANDORA MEDIA, LLC. Jonathan Melmed -- jm@melmedlaw.com -- Kyle D. Smith -- ks@melmedlaw.com -- Joanne Kim -- joanne@melmedlaw.com -- MELMED LAW GROUP P.C., Los Angeles, California. Daniel B. Swerdlin -- daniel@allbridgeslegal.com -- ALL BRIDGES LEGAL, P.C., San Francisco, CA, Attorneys for the PLAINTIFF, the PUTATIVE CLASS, and the AGGRIEVED EMPLOYEES. SKIPTHEDISHES: Osler Hoskin Attorneys Discuss Class Action Ruling ----------------------------------------------------------------- Laura Fric, Mary Angela Rowe and Sarah Firestone, of Osler, Hoskin & Harcourt LLP, in an article for Mondaq, report that when can parties unilaterally implement arbitration clauses "after the fact" to cover existing claims? Earlier this year, a class action was certified against Uber despite a late-breaking amendment to the underlying agreement that would have included an arbitration clause. In that case, the court left the effect of the arbitration clause to the common issues judge. More recently, a Manitoba court concluded that part of the "specific purpose" of such an arbitration clause was to prevent putative class action proceedings, and the defendant company "would obtain an unfair advantage" if the arbitration clause was enforced to terminate the plaintiff's proposed class action: Pokornik v. SkipTheDishes Restaurant Services Inc., 2022 MBKB 178. Justice Chartier specifically noted the arbitration provision did not permit class arbitration. Pokornik illustrates that courts will permit class actions to proceed in the face of arbitration clauses if those clauses are unconscionable. Pokornik follows in the wake of a 2020 Supreme Court of Canada decision which found that an arbitration clause that would have required a proposed class of Uber drivers to dispute their claims at great cost (and seemingly in the Hague) was unconscionable and unenforceable: Uber Technologies Inc. v. Heller, 2020 SCC 16 (Uber). (Osler reviewed that decision here and the certification decision, mentioned above, here.) Factual background The plaintiff started working as a courier for SkipTheDishes (Skip), a restaurant delivery service, in 2014. Her original courier agreement did not contain an arbitration clause. In July 2018, the plaintiff was notified by email that Skip was implementing a new courier agreement which, for the first time, contained a mandatory arbitration clause. The new agreement was to take effect a week later, and couriers had to agree to keep driving for Skip. One day before the new agreement took effect, the plaintiff filed her class action claim. Analysis The Court of King's Bench of Manitoba held that the original courier agreement governed the relationship between the parties. Even though the new agreement said it governed disputes arising under "any previous agreement", the plaintiff brought her claim before the new agreement came into effect, and the arbitration clause did not expressly cover an existing court action (paras 28–29). Moreover, and in any event, Justice Chartier concluded that the plaintiff had not agreed to the terms of the new agreement. The plaintiff informed Skip that she did not agree to the terms of the agreement and was doing so only under protest to continue to work — and so advised before clicking "I Agree". Because Skip never responded or objected to her email, the court considered the defendant to have acquiesced to the plaintiff's position (paras 30–31). Justice Chartier, applying the framework in Uber, held in the alternative that the arbitration agreement was invalid on the grounds of unconscionability due to the absence of consideration (para 32). Justice Chartier was satisfied that there was a clear inequality of bargaining power, and that, under the circumstances, the arbitration agreement constituted an improvident bargain (paras 34 and 39). (This is in tension with the Court's earlier finding that the arbitration clause in the new agreement would not have barred Ms. Pokornik's class proceeding.) Interestingly, factoring into this analysis was that Justice Chartier inferred that part of the "specific purpose" of the arbitration agreement was to prevent putative class action proceedings. Justice Chartier looked to Skip's 2020 Annual Report, which stated that the arbitration clause could " . . . significantly reduc[e] the size of any class action and the related risks" (para 40). As such, Justice Chartier held that "the defendant would obtain an unfair advantage if the arbitration provisions were found to be valid" (para 40). Justice Chartier noted that, while arbitration should be respected as a cost-effective and efficient method of dispute resolution, clauses that preclude the possibility of class arbitration -- such as the one in Skip's new agreement -- "undermine that principle of efficient adjudication of claims on a class basis" (para 41). Finally, Justice Chartier considered the arbitration clause invalid under Section 7(2) of the Act because there was no consideration to the plaintiff for entering the new courier agreement. The removal of a class action would benefit the defendant rather than the plaintiff, and the mandatory arbitration provision precludes class arbitration. Additionally, there was particular detriment in this instance, given the plaintiff had already filed an action. Takeaways Courts have emphasized respect for arbitration clauses because parties may have a legitimate interest in arbitrating disputes. However, Pokornik suggests that courts will carefully consider arbitration clauses in the class action context. Standalone class action waivers have been sharply criticized, and Pokornik suggests arbitration clauses may be less likely to be enforced where there is specific evidence the clauses were intended to circumvent class proceedings. Pokornik also suggests courts may be reluctant to enforce arbitration clauses that apply retroactively. This may have factored into the Uber certification decision. Pokornik continues to develop case law following the Uber decision in the class action context, and when arbitration agreements are contained in contracts of adhesion specifically. Following Uber, Pokornik suggests that arbitration clauses may not be enforced on the basis of unconscionability when there is unequal bargaining power and when the bargain was improvident. Requiring the parties to arbitrate would -- as the court held in this case -- disadvantage one party by prohibiting class arbitrations. While post-Uber case law is still developing, parties may wish to keep this analysis in mind when drafting arbitration provisions. [GN] SOMNIA INC: Harris Sues Over Data Breach ---------------------------------------- Thomas Booth Harris, on behalf of himself and all others similarly situated v. SOMNIA, INC. and PALM SPRINGS ANESTHESIA SERVICES, P.C., Case No. 7:22-cv-09550-PMH (S.D.N.Y., Nov. 8, 2022), is brought seeking to remedy these harms on behalf of himself and all similarly situated individuals whose personally identifiable information ("PII") and protected health information ("PHI") was accessed during the Data Breach. The Defendant lost control over highly sensitive personal information stored in its computer system in a July 2022 data breach by cybercriminals ("Data Breach"). The Defendant Palm Springs Anesthesia Services, P.C. ("PSAS"), a provider of anesthetic services with an office in Palm Springs, California, contracts with Somnia to manage PSAS' business and gives Somnia access to PSAS' highly sensitive patient information. On July 11, 2022, Somnia detected suspicious activity in its computer systems. Cybercriminals were able to pilfer the sensitive and confidential PII and PHI belonging to over 386,000 consumers. The stolen PII and PHI included names, Social Security numbers, dates of birth, driver's license numbers, financial account information, health insurance policy number, medical record numbers, Medicaid and Medicare identification numbers and health information such as treatment and diagnosis information. PSAS's patient information was among the PII and PHI that was stolen in the Data Breach. After discovering the Data Breach in July 2022, Somnia and PSAS waited more than 3 months to alert the victims about the Data Breach. The unreasonable delay between detection of the Data Breach and providing notice left impacted patients in the dark, with no means to prevent or stop cybercriminals from using their PII and PHI. By entrusting its patient PII and PHI with Somnia, PSAS had a duty to ensure Somnia was appropriately safeguarding this highly sensitive patient information. PSAS failed in that regard. PSAS acknowledges in the Data Breach Notice that Somnia's security measures were not sufficient. The Defendants failed in their respective duties to protect PII and PHI from unauthorized disclosure because Somnia did not implement or adhere to cybersecurity measures that would have prevented or stopped cybercriminals from accessing PII and PHI, and PSAS failed to ensure such measures were followed. The Defendants' negligent conduct puts the Plaintiff and other current and former patients at risk. As a result of the Data Breach, the Defendants' current and former patients have been exposed to a heightened and imminent risk of fraud and identity theft. They must now and in the future closely monitor their financial accounts to guard against identity theft, says the complaint. The Plaintiff is a Data Breach victim and received electronic notice of the Breach Notice on October 28, 2022. Somnia is a practice management company for anesthesia providers and clinics across the country.[BN] The Plaintiff is represented by: James J. Bilsborrow, Esq. WEITZ & LUXENBERG, PC 700 Broadway New York, NY 10003 Phone: (212) 558-5500 Fax: (212) 344-5461 Email: jbilsborrow@weitzlux.com - and - Samuel J. Strauss, Esq. Raina C. Borrelli, Esq. TURKE & STRAUSS LLP 613 Williamson St., Suite 201 Madison, WI 53703 Phone: (608) 237-1775 Fax: (608) 509-4423 Email: sam@turkestrauss.com raina@turkestrauss.com SOVEREIGN LENDING: Protective Order in DeVivo Suit Granted in Part ------------------------------------------------------------------ In the case, ANDREW DeVIVO, on behalf of himself and all others similarly situated, Plaintiffs v. SOVEREIGN LENDING GROUP INCORPORATED, Defendant, Case No. C22-5254RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, grants in part the Defendant's Motion for a Protective Order and to Quash Third Party Subpoenas. The lawsuit is a putative class action alleging SLG violated the Telephone Consumer Protection Act ("TCPA") by calling (1) members of the National Do Not Call Registry without consent; and (2) individuals that had previously made "do-not-call" requests. SLG moves to quash subpoenas issued by DeVivo seeking documents from two non-party Better Business Bureau ("BBB") locations, "BBB Great West + Pacific" in Tacoma, Washington, and "Better Business Bureau Serving the Pacific Southwest" in Newport Beach, California. Both subpoenas seek "all documents related to complaints regarding Sovereign Lending Group, Incorporated," from Jan. 1, 2018, to the present. In the alternative, SLG moves to limit responses to the Subpoenas "to complaints involving (1) calls to individuals who claimed they were on the National Do Not Call Registry and were called without consent; and (2) calls to individuals who claimed they were called after they had made a 'do-not-call' request to SLG." It also moves to block BBB from providing identifying information for consumers who submitted complaints. SLG does not claim any privilege or protectable interest in the subpoenaed material and that it has no standing to quash the subpoenas under Rule 45. It argues that BBB complaints are publicly available and that subpoenas are unnecessary. The Plaintiff concedes he is essentially seeking the contact information for complainants, which is not public information. SLG speculates, without evidence, that the BBB offices would be burdened by these subpoenas. To be clear, neither BBB location has filed anything with the Court. SLG also argues that the Plaintiff is on a fishing expedition for a replacement named Plaintiff to represent the class. These arguments are not persuasive, Judge Martinez finds. He says the issue of the viability of this named Plaintiff's claims is not properly before the Court. Judge Martinez also finds that the Plaintiff's requested information is relevant and generally proportional to the needs of the case under the Rule 26(b) standard. However, SLG arguably has an interest in the production of complaints made to the BBB, and he agrees that these requests are overly broad. He imposes SLG's proposed limitation, argued in the alternative. Any BBB complaint against SLG that includes the words "Do Not Call," "Do Not Call Registry," or the like would be relevant, and Judge Martinez trusts the Plaintiff to properly word the subpoenas to capture only such complaints. He say requesting records that contain a limited number of specific search terms will reduce the burden on the two BBB offices. SLG's request to prevent the Plaintiff from obtaining contact information is meritless. The Plaintiff has presented at least some basis for obtaining the information other than identifying new or replacement class members: to substantiate class allegations, and to discover whether the putative class suffered the same alleged injury in order to establish commonality and typicality. Judge Martinez holds that courts routinely allow the collection of this kind of information in putative class actions. Accordingly, having reviewed the relevant briefing and the remainder of the record, Judge Martinez grants in part the Defendants' Motion for Protective Order as stated. He directs the Plaintiffs to immediately send revised subpoenas to the two BBB locations consistent with the above. Neither party is entitled to costs given the split nature of the Court's ruling. The parties are directed to attempt to resolve any issues related to these subpoenas in good faith and consistent with the Order prior to seeking further assistance from the Court. A full-text copy of the Court's Dec. 9, 2022 Order is available at https://tinyurl.com/mr2234pz from Leagle.com. SPIRIT AIRLINES: Curd Sues Over Wiretapping of Communications ------------------------------------------------------------- Frances Curd, individually and on behalf of all others similarly situated v. SPIRIT AIRLINES, INC., Case No. 1:22-cv-03174-GLR (D. Md., Dec. 8, 2022), is brought against the Defendant for wiretapping the electronic communications of visitors to its website, www.spirit.com in violation of the Maryland Wiretapping and Electronic Surveillance Act, and constitutes an invasion of the privacy rights of website visitors. The Defendant procures third-party vendors, such as FullStory, to embed snippets of JavaScript computer code ("Session Replay Code") on the Defendant's website, which then deploys on each website visitor's internet browser for the purpose of intercepting and recording the website visitor's electronic communications with the Defendant's website, including their mouse movements, clicks, keystrokes (such as text being entered into an information field or text box), URLs of web pages visited, and/or other electronic communications in real-time ("Website Communications"). These third-party vendors (collectively, "Session Replay Providers") create and deploy the Session Replay Code at the Defendant's request. After intercepting and capturing the Website Communications, the Defendant and the Session Replay Providers use those Website Communications to recreate website visitors' entire visit to www.spirit.com. The Session Replay Providers create a video replay of the user's behavior on the website and provide it to the Defendant for analysis. The Defendant's procurement of the Session Replay Providers to secretly deploy the Session Replay Code results in the electronic equivalent of "looking over the shoulder" of each visitor to the Defendant's website for the entire duration of their website interaction. The Plaintiff brings this action individually and on behalf of a class of all Maryland citizens whose Website Communications were intercepted through the Defendant's procurement and use of Session Replay Code embedded on the webpages of www.spirit.com and seeks all civil remedies provided under the causes of action, including but not limited to compensatory, statutory, and/or punitive damages, and attorneys' fees and costs, says the complaint. The Plaintiff has visited www.spirit.com on her computer while in Maryland. Spirit is an airline serving more than ninety destinations across the country, including Baltimore/Washington International Thurgood Marshall Airport (BWI).[BN] The Plaintiff is represented by: James J. Pizzirusso, Esq. HAUSFELD LLP 888 16th Street N.W., Suite 300 Washington, D.C. 20006 Phone: 202.540.7200 Email: jpizzirusso@hausfeld.com - and - Steven M. Nathan, Esq. HAUSFELD LLP 33 Whitehall Street Fourteenth Floor New York, NY 10004 Phone: 646.357.1100 Email: snathan@hausfeld.com - and - Katrina Carroll, Esq. LYNCH CARPENTER, LLP 111 W. Washington St., Suite 1240 Chicago IL 60602 Phone: 312.750.1265 Email: katrina@lcllp.com - and - Jonathan M. Jagher, Esq. FREED KANNER LONDON & MILLEN LLC 923 Fayette Street Conshohocken, PA 19428 Phone: 610.234.6486 Email: jjagher@fklmlaw.com STANDARD FIRE: Harrington Suit Removed to D. Massachusetts ---------------------------------------------------------- The case styled as Mary Harrington, on behalf of herself and all others similarly situated v. The Standard Fire Insurance Company d/b/a Travelers of Massachusetts, Case No. ESX-L-006509-22 was removed to the U.S. District Court for the District of Massachusetts on Dec. 12, 2022. The District Court Clerk assigned Case No. 1:22-cv-12095-ADB to the proceeding. The nature of suit is stated as Insurance for Insurance Contract. The Standard Fire Insurance Company doing business as Travelers of Massachusetts -- https://www.travelers.com/ -- offers Massachusetts car insurance information and coverage limits.[BN] The Plaintiff appears pro se. The Defendant is represented by: Kevin P. Daly, Esq. Wystan M. Ackerman, Esq. ROBINSON & COLE LLP 280 Trumbull Street Hartford, CT 06103 Phone: (860) 275-8200 Email: kdaly@rc.com wackerman@rc.com STATE BAGS: Fagnani Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against State Bags, LLC. The case is styled as Mykayla Fagnani, on behalf of herself and all other persons similarly situated v. State Bags, LLC, Case No. 1:22-cv-10492 (S.D.N.Y., Dec. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. STATE -- https://statebags.com/ -- designs fashionable bags for work, travel, gym, & play.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal STIIZY LLC: Sued for Allegedly Overstating Cannabis THC Content --------------------------------------------------------------- Holly Barker, writing for Bloomberg Law, reports that Stiizy LLC and Ironworks Collective Inc. have been hit with a proposed class action alleging they overcharged millions of California consumers by grossly overstating the THC content of "Stiizy" brand cannabis products. THC, or tetrahydrocannabinol, is the psychoactive ingredient in cannabis that gets people high, and products with a higher THC content fetch a much higher price than low-THC products, according to the lawsuit. "Like other consumer products, cannabis must be truthfully and accurately labeled," plaintiff Shanti Gallard says. According to Gallard, independent laboratory testing of Stiizy products revealed that the THC content was overstated by as much as 33%. [GN] STITCHER MEDIA: Luis Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Stitcher Media LLC. The case is styled as Kevin Yan Luis, individually and on behalf of all others similarly situated v. Stitcher Media LLC, Case No. 1:22-cv-10498 (S.D.N.Y., Dec. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Stitcher -- https://www.stitcher.com/ -- is a media company that specializes in the creation, distribution, and monetization of podcasts.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com STOCKX INC: Court Grants Bid to Compel Arbitration in Valiente Suit ------------------------------------------------------------------- In the case, HERIBERTO VALIENTE, Plaintiff v. STOCKX, INC., Defendant, Case No. 22-cv-22432-BLOOM/Otazo-Reyes (S.D. Fla.), Judge Beth Bloom of the U.S. District Court for the Southern District of Florida grants StockX's Motion to Compel Individual Arbitration and Dismiss Litigation. The Plaintiff initiated the class action against the Defendant on Aug. 2, 2022, by filing his Complaint. He alleges the Defendant: (1) violated Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"); (2) violated State Consumer Fraud Acts; (3) breached an express warranty, an implied warranty of merchantability/fitness for a particular purpose, and Magnuson Moss Warranty Act; (4) made negligent misrepresentations; (5) committed fraud; and (6) was unjustly enriched. In the instant Motion, the Defendant requests that the Court compels the parties to arbitration and dismiss the case. It argues that the Plaintiff agreed to the StockX Terms of Service when he created a Stock X account, which includes an arbitration provision directing the parties to resolve any and all disputes exclusively through arbitration. It further contends that the Plaintiff acknowledged his agreement to the Terms each time he logged into his account. The Plaintiff responds that (1) Florida law must be applied; (2) the Arbitration Provision is not valid because the agreement constituted an improper browsewrap agreement which did not put him on notice of the Terms; (3) unconscionability bars compelling arbitration; and (4) the issue of arbitrability should be decided by the Court. Initially, Judge Bloom finds that the Terms provide that "except to the extent inconsistent with the Federal Arbitration Act ("FAA") or preempted by federal law, the laws of the State of Michigan, without regard to principles of conflict of laws will govern these Terms and any claim or dispute that has arisen or may arise between you and StockX." Because there is a threshold issue of whether the Plaintiff assented to the Terms, which includes the choice of law clause therein, Florida's law of contract formation applies to first determine the existence of a contract. According to the Plaintiff there was no agreement to arbitrate and, although the Defendant contends the Terms were presented as a clickwrap agreement, he contends the agreement is more properly considered a browsewrap agreement. Judge Bloom agrees with the Defendant that the website, depicted in relevant part below, required the Plaintiff to click a box acknowledging that he read the terms and conditions prior to creating his account, constituting a clickwrap agreement. She finds that there was a valid and enforceable clickwrap agreement containing the Terms and Arbitration Provision. Judge Bloom need not address the Plaintiff's argument that the subsequent times he logged in he did not assent to the browsewrap agreement contained on the login page because she has already determined that the Plaintiff agreed to be bound by the terms at the time he created his StockX account. The Plaintiff then argues that unconscionability bars compelling arbitration because the Arbitration Provision was procedurally and substantively unconscionable. Judge Bloom holds that the Plaintiff fails to demonstrate that the Arbitration Provision was procedurally unconscionable because it presented a take-it-or-leave-it dilemma. She also determines that the Arbitration Provision was not minimized or hidden so as to make it procedurally unconscionable. Because the Plaintiff has not met his burden of demonstrating procedural unconscionability a requisite for finding unconscionability under Florida law, Judge Bloom declines to address the Plaintiff's argument that the Arbitration Provision is substantively unconscionable. The Defendant argues that the Plaintiff agreed to delegate gateway issues of arbitrability to the arbitrator. The Plaintiff contends that the Court must retain jurisdiction to decide arbitrability because the validity of the Arbitration Provision is in dispute. Judge Bloom states that the question of arbitrability is expressly delegated to the arbitrator and she declines to retain jurisdiction to determine the question of arbitrability. As a final matter, the Defendant requests that the Court dismisses the case as all claims are subject to arbitration. The Plaintiff does not address the Defendant's request for dismissal in his Response. Because the Plaintiff's claims are subject to arbitration, Judge Bloom finds that dismissal of the action is appropriate. Accordingly, the Defendant's Motion is granted. The parties will proceed to arbitration pursuant to the Arbitration Provision. Judge Bloom dismisses the Plaintiff's claims against the Defendant without prejudice. The Clerk of Court will close the case. To the extent not otherwise disposed of, any scheduled hearings are cancelled, all pending motions are denied as moot, and all deadlines are terminated. A full-text copy of the Court's Dec. 9, 2022 Order is available at https://tinyurl.com/mppshrn5 from Leagle.com. SUKUT CONSTRUCTION: Remand of Rodriguez Suit to State Court Denied ------------------------------------------------------------------ In the case, JIMMY RODRIGUEZ, individually and on behalf of all others similarly situated, Plaintiff v. SUKUT CONSTRUCTION, INC. d/b/a Sukut, a JV, a California corporation; DRAGADOS USA INC d/b/a/Dragados, a Delaware corporation; FLATIRON CONSTRUCTION CORPORATION d/b/a/Flatiron, a Delaware Construction Corporation and Does 1-50 inclusive, Defendants, Case No. 1:22-cv-01181-CDB (E.D. Cal.), Magistrate Judge Christopher D. Baker of the U.S. District Court for the Eastern District of California denies the Plaintiffs' Motion to Remand. The lawsuit is a labor and employment action in which Rodriguez alleges that his former employers -- the three named Defendant construction/contracting companies -- failed to remit to him numerous types of compensation and other benefits that he was entitled to receive during the approximate two-year period he worked for the Defendants (between May 2019 and June 2021). Specifically, he alleges that the Defendants failed to: (1) pay overtime wages; (2) provide meal periods; (3) authorize and permit rest periods; (4) pay all wages owed timely upon the Plaintiff's separation from employment; (5) provide accurate itemized wage statements; (6) pay reporting time pay; (7) indemnify necessary business expenses; and (8) accurately record and pay sick leave. The Plaintiff also alleges Defendants committed unfair business practices. On June 27, 2022, the Plaintiff filed a class action complaint on behalf of himself and all others similarly situated against Defendants in the Superior Court of California, in Kern County on June 27, 2022. In the complaint, he seeks to recover, among other things, unpaid wages, liquidated damages, premium pay, statutory penalties, restitution, attorneys' fees, interest, and costs. On Sept. 16, 2022, Defendant Flatiron timely filed a Notice of Removal. In the Notice, it asserted that removal from state court was appropriate on two separate and independent grounds. First, that this Court has jurisdiction pursuant to the Class Action Fairness Act ("CAFA"). 28 U.S.C. Sections 1332(d)(3), 1441, and 1446. Second, that there is federal question jurisdiction under Section 301 of the Labor Management Relations Act of 1947 ("LMRA"). 29 U.S.C. Section 152(2), 28 U.S.C. Sections 1331, 1441, and 1446. Attached to Flatiron's Notice of Removal is a "Declaration of Shawn Golden" which contains a copy of the Plaintiffs' Collective Bargaining Agreement (CBA). In his motion, the Plaintiff argues that the Defendants "improperly and erroneously" removed the action and that remand to state court is required. First, as to CAFA-conferred jurisdiction under 28 U.S.C. Section 1332(d)(2), he argues that the Defendants fail to satisfy the $5 million dollar amount in controversy threshold. He complains that the calculations set forth in the Defendants' Notice of Removal are speculative, conclusory, and not sufficiently supported with evidence such that the Defendants fail to carry their burden of proving amount in controversy by a preponderance of evidence. Second, as to federal question jurisdiction under 28 U.S.C. Section 1331, he argues that the Defendants are incorrect in asserting that his claims are preempted by the LMRA. The Defendants' opposition maintains that removal is appropriate under both CAFA and federal question jurisdiction. In support of satisfying the amount in controversy threshold, they proffer the declaration of Christine Denio, a Payroll and Accounts Payable Shared Services Director for Flatiron. Ms. Denio attests to having reviewed the Defendant's business information and records relevant to the time associated with the Plaintiff's claims. Based on Ms. Denio's calculations, the Defendants conclude that the damages and other relief the Plaintiff seeks exceeds $5 million dollars. They also argue that the Court maintains original jurisdiction of the action because the Plaintiff's principal claims are preempted under Section 301 of the LMRA and any remaining non-preempted claims are derivative of the preempted claims (and, thus, properly removed). Based only on amounts in controversy relating to allegedly withheld rest breaks and meal periods, along with waiting time and wage statements penalties, Judge Baker holds that a preponderance of the evidence demonstrates the Plaintiff's complaint conservatively puts far more than $5 million dollars at issue. As such, he declines to address other amounts that potentially could increase the amount in controversy (i.e., attorney's fees). Next, Judge Barker states that Cal. Labor Code Section 514's exemption clause provides that Sections 510 and 511 do not apply to an employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. So, if the CBA at issue meets the requirements set forth in Section 514, then the Plaintiff's overtime compensation claim is preempted by Section 301 of the LMRA as it exists "solely as a result of the CBA." Judge Baker agrees with the Defendants that the CBA provides for wages, hours of work, working conditions, as well as premium wages to be paid, and an hourly rate above the statutory threshold. Accordingly, the Plaintiff's overtime claim is preempted, and the Court has federal question jurisdiction over this cause of action. In addition, if the CBA at issue meets the requirements set forth in Section 514, then the Plaintiff's overtime compensation claim is preempted by Section 301 of the LMRA as it exists "solely as a result of the CBA." Accordingly, the Plaintiff's meal break claim is preempted, and the Court has federal question jurisdiction over this cause of action. Finally, because the Plaintiff's remaining claims largely are derivate from the preempted overtime and meal break claims, Judge Baker will exercise supplemental jurisdiction over the claims pursuant to 28 U.S.C. Section 1367(a) to avoid needless expense of judicial resources and the potential for inconsistent judgments due to parallel proceedings. For these reasons, Judge Baker denies the Plaintiffs' motion for remand. A full-text copy of the Court's Dec. 9, 2022 Order is available at https://tinyurl.com/34r3szrd from Leagle.com. SYNGENTA CROP: Slovak Files Suit in M.D. North Carolina ------------------------------------------------------- A class action lawsuit has been filed against Syngenta Crop Protection AG, et al. The case is styled as Richard J. Slovak, on behalf of himself and all other similarly situated persons and entities v. Syngenta Crop Protection AG, Syngenta Crop Protection, LLC, Syngenta Corporation, Corteva, Inc., Case No. 1:22-cv-01059 (M.D.N.C., Dec. 8, 2022). The nature of suit is stated as Anti-Trust for the Sherman-Clayton Act. Syngenta Crop Protection -- https://www.syngenta.com/en -- is a world leader in protecting crops, with a complete range of high-quality, sustainable solutions.[BN] The Plaintiff is represented by: Kevin Guy Williams, Esq. BELL DAVIS & PITT, P.A. POB 21029 Winston-Salem, NC 27120-1029 Phone: (336) 714-4150 Fax: (336) 722-8153 Email: kwilliams@belldavispitt.com SYSCO SACRAMENTO: Bid to Compel Discovery in Fite Class Suit Denied ------------------------------------------------------------------- In the case, GLENN FITE, Plaintiff v. SYSCO SACRAMENTO, INC., Defendant, Case No. 2:21-cv-01633 DAD AC (E.D. Cal.), Magistrate Judge Allison Claire of the U.S. District Court for the Eastern District of California denies the Plaintiff's motion to compel discovery. The discovery dispute was referred to Judge Claire pursuant to E.D. Cal. R. 302(c)(1). The motion was initially set for hearing on the papers on Oct. 19, 2022. On Oct. 19, 2022, the Court vacated the hearing and ordered the parties to engage in additional meet and confer efforts, as it was clear from the joint statement that the meet and confer process had not been exhausted. The parties filed a revised joint statement on Nov. 30, 2022. On Dec. 6, 2022, the Defendant filed a motion for judgment on the pleadings. That motion is set to be heard before the District Judge on Jan. 17, 2023. The lawsuit is a putative class action alleging a single claim for relief: Violation of Unfair Competition Law, California Business & Professions Code Sections 17200, et seq. The discovery cutoff is currently set for June 15, 2023. At issue in the pending motion for judgment on the pleadings are several matters that directly impact the scope of discovery, including the Plaintiff's standing and the scope of the putative class. In light of the procedural posture of the case, Judge Claire has determined that it would be premature to rule on the pending discovery motion at this time. In the interest of judicial economy, she denies the motion to compel without prejudice to re-filing after a ruling has been issued on the pending motion for judgment on the pleadings. She orders the parties to meet and confer following a ruling on the pending motion for judgment on the pleadings to determine whether a new motion to compel is necessary. A full-text copy of the Court's Dec. 9, 2022 Order is available at https://tinyurl.com/2hnt8zw5 from Leagle.com. TALIS BIOMEDICAL: Securities Class Suit Tossed With Leave to Amend ------------------------------------------------------------------ In the case, IN RE: TALIS BIOMEDICAL CORPORATION SECURITIES LITIGATION, Case No. 22-cv-00105-SI (N.D. Cal.), Judge Susan Illston of the U.S. District Court for the Northern District of California grants the Defendants' motion to dismiss the consolidated complaint with leave to amend. Co-Lead Plaintiffs Martin Dugan, Leon Yu, and Max Wisdom Technology Ltd., on behalf of a putative class of shareholders, allege that Talis and various current and former Talis officers and board members misled the investing public about Talis' ability to bring its first product -- a molecular diagnostic platform for COVID-19 tests called the "Talis One" -- to market. The Plaintiffs allege that the Defendants misled investors about Talis' initial application for an Emergency Use Authorization ("EUA") from the Food and Drug Administration ("FDA"); the accuracy and functionality of the Talis One; and about Talis' ability to manufacture the Talis One on a commercial scale on projected timelines. They allege that the Defendants made numerous false and misleading statements and omissions in connection with Talis' February 2021 initial public offering ("IPO") and in post-IPO filings with the Securities and Exchange Commission ("SEC") and during quarterly investor calls from March 2021 until March 2022. Talis is a biotechnology company that was founded in 2010 to develop point-of-care ("POC") diagnostic tests for infectious diseases. It developed the Talis One System, a diagnostic platform comprised of (1) single-use test cartridges that prepare and store patient samples, (2) a box-shaped instrument that analyzes the samples, and (3) software. In 2018, Talis was developing rapid POC diagnostic tests for sexually transmitted infection such as chlamydia and gonorrhea. After the onset of the COVID-19 pandemic in early 2020, Talis abandoned its original focus on STI testing, and by summer 2020 started to develop a molecular test for COVID-19. Talis' COVID-19 test was slated to be the source of substantially all of its initial revenue. In January and February of 2022, two putative class actions were filed against Talis and the Individual Defendants. In June 2022, those cases were consolidated into the present action, and on July 1, 2022, the Plaintiffs filed the consolidated complaint ("CC"). They bring claims under: (1) the Securities Act of 1933, 15 U.S.C. Section 77 et seq, on behalf of all persons and entities that purchased or otherwise acquired common stock issued by Talis pursuant and/or traceable to the Registration Statement issued in connection with the Company's February 2021 initial public offering; and (2) the Securities Exchange Act of 1934, 15 U.S.C. Section 78 et seq., on behalf of all persons and entities who purchased or otherwise acquired Talis common stock between March 30, 2021 and March 15, 2022, both inclusive. The Plaintiffs allege violations of Sections 11 and 15 of the Securities Act, 15 U.S.C. Section 77k, against Talis and nine individuals who signed the Registration Statement: Brian Coe (co-founder, former CEO, President and member of the Board); CFO Roger Moody; and current and former members of the Board of Directors (Rustem Ismagliov, Felix Baker, Raymond Cheong, Melissa Gilliam, Kimberly Popovits, Matthew Posard, Randal Scott) ("Securities Act Defendants"). They allege that Talis, as the issuer, is strictly liable under the Securities Act, and that the Individual Defendants — who are experienced medical diagnostics investors, executives, and scientists -- are liable because they acted negligently and failed to perform any reasonable investigation before the offering. The Plaintiffs allege that the Securities Act Defendants are liable for issuing materially false or misleading statements and/or failing to disclose material facts concerning the testing performed on the Talis One and the data submitted to the FDA; Talis' ability to manufacture the Talis One at commercial scale, including a false claim that Talis had ordered 5,000 instruments before the IPO; and the performance, reliability, safety, and convenience of the Talis One. In addition, they allege that the Registration Statement omitted material information about known uncertainties and specific risks in violation of Items 105 and 303 of SEC Regulation S-K. They further allege violations of Section 15 of the Securities Act, 15 U.S.C. Section 77o, against the Individual Securities Act Defendants in their roles as control persons of Talis. The Plaintiffs allege violations of Section 10(b) of the Exchange Act, 15 U.S.C. Section 78j(b), against Talis, Coe, Moody and current CEO Rob Kelley. They allege that these Defendants acted knowingly or were deliberately reckless in making false and misleading statements regarding the progress, production levels, and validation of the Talis One cartridge manufacturing lines; Talis' ability to ship the Talis One promptly following FDA approval; the quality of results; the reasons for Talis adopting a "phased approach" to launching the Talis One; and Talis' purported order of 5,000 Talis One "instruments." They also allege violations of Section 20(a) of the Exchange Act, 15 U.S.C. Section 78t(a), against Defendants Coe, Moody and Kelley by virtue of their role as control persons of Talis. The Defendants move to dismiss the CC, asserting that Talis consistently disclosed to investors that it faced extraordinary circumstances bringing its first product to market, including supply-chain and other manufacturing challenges arising from the COVID-19 pandemic; uncertainty about receiving approval for an EUA from the FDA; challenges related to launching a new instrument system and COVID-19 test at the same time; and building and scaling complex manufacturing processes operated by third party contractors. They contend, inter alia, that none of the statements challenged by the Plaintiffs were false or misleading when made, that they have not pled fraud with particularity, and that many of the challenged statements are inactionable corporate optimism, forward-looking, or opinions. First, the Defendants request consideration of 20 documents consisting of SEC filings, earnings call transcripts, analyst reports, and press releases. Judge Illston finds it is appropriate to consider the SEC filings and the earnings call transcripts, as the CC quotes extensively from all of these materials and because the Plaintiffs challenge various statements within these documents as false or misleading, but the CC often does not contain the surrounding context of the statements at issue and/or omits cautionary language contained in those materials. Accordingly, she grants the Defendants' request for consideration of Exhibits B, C, D, E, F, G, H, I, J, L, M, O, P, and Q on the ground that those documents have been incorporated by reference in the CC. Judge Illston denies the requests for consideration of the balance of the Defendants' exhibits. These documents are only briefly referenced in the CC, consideration of the documents would not add anything to the Court's review of the present motion, and/or the Court cannot consider the documents for the reasons sought by the Defendants. To the extent the Defendants wish to make the point that the press release stated that Coe "stepped down" and not "terminated," that language is quoted in Paragraph 101. Judge Illston also denies the Plaintiffs' request for judicial notice. She says the asserted relevancy of some of the documents has been mooted by the Court's denial of the Defendants' request for judicial notice of certain documents. She adds it is difficult to understand how documents not referenced in a complaint and on which the allegations of the complaint do not necessarily rely can be relevant to the Court's determination." Next the parties disagree on whether the Plaintiffs' Section 11 claims sound in fraud, and thus whether a heightened pleading standard applies. Although section 11 does not contain an element of fraud, a plaintiff may nonetheless be subject to Rule 9(b)'s particularity mandate if his complaint sounds in fraud. The Defendants argue that the Section 11 claim sounds in fraud because the Section 11 and Section 10(b) claims rely on the same factual allegations and the Plaintiffs describe the entire course of conduct in fraudulent terms, such as "adverse facts were concealed in the Registration Statement." The Plaintiffs counter that Section 11 imposes liability for material omissions and "misleading" statements, and they argue that the Section 11 claims are based on different statements made at different times than the Section 10(b) claims. Judge Illston finds it unnecessary to resolve this issue at this time because she agrees with the Defendants that the Plaintiffs' Section 11 allegations do not meet Rule 8 as explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the most part, she finds that the allegations in support of falsity are based on FE allegations that are conclusory, state opinions without factual support, sometimes based on vague hearsay and rumors, and are often vague or silent as to time period, and thus plaintiffs have not alleged facts showing that the challenged statements were false or misleading at the time of the IPO. In addition, Judge Illston holds that many of the challenged statements appear to be protected by the bespeaks caution doctrine, as the Registration Statement contained fulsome risk disclosures. When amending, she encourages the Plaintiffs to add as much specificity as possible to cure the defects identified in this order and to show that the challenged statements were false or misleading when made (particularly since plaintiffs rely on the same FE allegations for both the Section 11 and 10(b) claims). For the reasons she set forth, Judge Illston concludes that the Plaintiffs have not alleged facts showing that Talis "knew" or had reason to believe that its EUA submission was deficient and that the FDA would likely not approve it, or that there were high invalid rates at the time of the IPO. Accordingly, she grants the Defendants' motion to dismiss the Section 11 claims with leave to amend. Because she has found that the Plaintiffs have not adequately alleged a Section 11 claim, she says the Plaintiffs have also failed to state any claims under Section 15. Finally, Defendants Talis, Coe, Kelley, and Moody move to dismiss the Plaintiffs' Section 10(b) claim against them on the basis that the CC fails to adequately allege any actionable misstatements or omissions and fails to plead scienter. They also argue that a number of the challenged statements are protected by the "safe harbor" provision of the PSLRA, are inactionable opinions and/or corporate optimism. They also move to dismiss the Plaintiffs' Section 20(a) claim on the grounds that the complaint fails to adequately allege a primary violation under Section 10(b). Judge Illston finds that the Plaintiffs have failed to allege with particularity why the August 2021 statement about being in the "final stages of validation for the first set of automated production lines" was false or misleading. Because she concludes that the Plaintiffs have failed to allege with particularity that any of the challenged statements were false or misleading when made, Judge Illston finds it unnecessary to reach the parties' additional arguments about scienter. In addition, because the Plaintiffs have failed to state a claim under Section 10(b), they have failed to state a claim under Section 20. In light of the foregoing, Judge Illston concludes that Plaintiffs have failed to state a claim under Sections 11 or 10(b). Further, as the Plaintiffs have failed to allege primary liability, they have failed to state a claim under Sections 15 or 20. She grants the Defendants' motion to dismiss. The Plaintiffs are granted leave to amend, and may file the amended complaint by Jan. 13, 2023. A full-text copy of the Court's Dec. 9, 2022 Order is available at https://tinyurl.com/3uxzer78 from Leagle.com. TGI FRIDAY'S: Must Face Class Action Over Mozzarella Snack Sticks ----------------------------------------------------------------- Zachary Rogers, writing for NBC Montana, reports that a federal judge in Chicago has ruled that a potential nationwide class action lawsuit can proceed against the makers of "TGI Friday's Mozzarella Snack Sticks," but not against the restaurant chain that shares the same name. The lawsuit claims that TGI Friday's packaged cheese snacks found in grocery store frozen food sections are labeled "mozzarella sticks," but they actually only contain cheddar cheese. Only fine print on the back of the product package reportedly reveals the truth about the cheese. Plaintiff Amy Joseph accused both TGI Friday's Inc. and the makers of the cheese sticks, Inventure Foods Inc., of misleading customers with the packaging label. Customers would not pay as much or buy as much of the product if it was accurately labeled, Joseph said in her lawsuit. This Monday, U.S. District Judge Robert M. Dow Jr. denied a motion from Inventure Foods to dismiss the lawsuit, according to Reuters. Judge Dow Jr. did, however, reportedly grant TGI Friday's request to be removed as a defendant in the case, as he found the chain restaurant's only involvement in the "mozzarella sticks" product to be as a licensor. While Plaintiff makes wide-ranging allegations in her complaint about TGIF's role in the creation of the Product, the Product's packaging - and the complaint - show that TGI Fridays is only the licensor of the mark," Judge Dow Jr. wrote in a memorandum on Monday, according to USA Today. Simply having a company's label on a product does not make it liable for misleading or false advertisement, the judge reportedly ruled. Inventure reportedly argued that it never really said the product contained mozzarella cheese, adding that no "reasonable" customer would think a "shelf-stable, crunchy snack product" actually contained mozzarella. The snack maker also questioned Joseph's "motives for purchasing the product," Reuters reports, adding that Inventure Foods said that Joseph has filed multiple consumer class action lawsuits with at least eight being in the last decade. Joseph's lead attorney, Thomas Zimmerman Jr. of Zimmerman Law Offices, celebrated the ruling, telling USA Today that the class action against Inventure Foods will proceed. We are pleased with the judge's ruling. The judge agreed with us that the claims in the lawsuit have merit, the case should not be dismissed," Zimmerman Jr. reportedly said in a statement. "We intend to proceed against Inventure Foods on behalf of the nationwide class of purchasers of TGI Fridays mozzarella sticks." The official name of the case is "Joseph v. TGI Friday's Inc, U.S. District Court for the Northern District of Illinois No. 21-cv-1340." Following Judge Dow Jr.'s ruling, attorneys were instructed to participate in a "preliminary settlement discussion" on December 5, according to Reuters. [GN] TRINKET SHOP: Fagnani Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Trinket Shop, LLC. The case is styled as Mykayla Fagnani, on behalf of herself and all other persons similarly situated v. Trinket Shop, LLC, Case No. 1:22-cv-10493 (S.D.N.Y., Dec. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Trinket Shop, LLC is a specialty retailer of premium holiday and lifestyle products.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal TSLCJ LLC: Fails to Pay Proper Wages, Viera Suit Alleges -------------------------------------------------------- JOSE MAGDALENO VIERA; SANTOS MINGLEY MORALES RODRIGUEZ; and BARTOLA RODRIGUEZ GALO, individually and on behalf of all others similarly situated, Plaintiffs v. TSLCJ LLC d/b/a JEWEL AUTO SPA; LAURENCE LYNCH; and STEFAN LYNCH, Defendants, Case No. 2:22-cv-07558 (E.D.N.Y., Dec. 13, 2022) is an action against the Defendant for failure to pay minimum wages, overtime compensation, and provide accurate wage statements. The Plaintiffs were employed by the Defendants as car cleaner. TSLCJ LLC d/b/a JEWEL AUTO SPA provides auto detailing services. [BN] The Plaintiffs are represented by: Roman Avshalumov, Esq. Helen F. Dalton & Associates, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 Facsimile: 718) 263-9598 UBER TECHNOLOGIES: Holland & Knight Discusses Settlement Ruling --------------------------------------------------------------- Ariel Simone Wossene and Travis A. Sabalewski, Esq., of Holland & Knight LLP, in an article for Lexology, report that the U.S. Court of Appeals for the Ninth Circuit recently rendered a decision on whether a class action settlement is a "coupon settlement" and therefore subject to the restrictions on the award of attorneys' fees to class counsel imposed by the Class Action Fairness Act (CAFA). 28 U.S.C. Section 1712. In rendering its decision in McKnight v. Hinojosa, the Ninth Circuit affirmed the district court's application of the Online DVD factors from a 2015 case, in concluding that the class action settlement (the Settlement) was not a coupon settlement subject to the restrictions on attorneys' fees awards to class counsel under CAFA by reasoning that two of the three factors weighed against determining that the Settlement was a "coupon settlement." The U.S. Court of Appeals for the Ninth Circuit in McKnight v. Hinojosa, No. 21-16623, 2022 WL 17333820 (9th Cir. Nov. 30, 2022) considered whether the proposed class action settlement was a "coupon settlement" and therefore subject to the restrictions on the award of attorneys' fees to class counsel imposed by the Class Action Fairness Act (CAFA). 28 U.S.C. Section 1712. Congress enacted CAFA in part out of "concern about settlements when class members receive little or no value, including settlements in which counsel are awarded large fees, while leaving class members with coupons or other awards of little or no value." CAFA, Pub. L. No. 109-2, Section 2, 119 Stat. 4 (2005). Section 1712 only applies if the settlement is a "coupon settlement" and addresses this concern in two ways. First, under Section 1712(e), courts must apply "heightened scrutiny" when approving settlement agreements awarding coupon relief. Id. at 949. Second, courts must apply "a series of specific rules" to attorneys' fees awards in coupon settlements under Section 1712(a)–(c). In re HP Inkjet Printer Litig., 716 F.3d 1173, 1178 (9th Cir. 2013). The Ninth Circuit affirmed the district court's judgment awarding attorneys' fees by holding that the parties' settlement was not a coupon settlement and affirmed the district court's application of the percentage-of-fund method, reducing the requested award of $8.125 million to $5,689,440, representing 17.5% of the value of the fund and 2.9 times the lodestar, which represents the value of the work performed based on the number of hours reasonable spent and reasonable hourly rates for that work. Case Background In McKnight v. Hinojosa, the Ninth Circuit heard the consolidated appeal of the Plaintiff-Appellees who represented a class that brought breach of contract and consumer law claims against Uber Technologies Inc. and Raiser LLC (Uber) alleging the misrepresentation of "Safe Rides Fees" and the safety measures, background checks and other efforts taken to provide safety for customers. The parties reached an initial settlement in 2016, and the district court approved a revised settlement in August 2019 (the Settlement). The district court then approved and certified a settlement class of approximately 22.4 million members. The class included anyone who used Uber ridesharing services in the United States between Jan. 1, 2013, and Jan. 31, 2016, and was charged a Safe Rides Fee. The Settlement provided both monetary and injunctive relief, including $32.5 million into a "non-reversionary settlement fund" with class members receiving $0.25 each for the first Safe Ride Fee and $0.05 for each subsequent fee, with the average class member receiving $1.07. Settlement funds were to be paid in three stages: first, through the submission of a claim form and payments through cash, PayPal or eCheck; second as credits to the Uber account; and third, after one year, Uber would make a one-time attempt to remit any unused credit to the class member's payment account with Uber. For injunctive relief, the Settlement prohibited Uber from charging a Safe Rides Fee and limited representations that Uber can make as to its driver background check policies and the safety of its services. The district court approved the settlement and reasoned the CAFA's attorney fee restrictions applicable to coupon settlements did not apply. Accordingly, the district court applied the percentage-of-fund method, granting fees but reducing the award because the settlement amount fell near the bottom of the "range of possible approval" and because on a lodestar cross-check, "even the reduced fee award granted a healthy multiplier of the fees actually incurred." Three objectors appealed by contending the district court erred by not applying CAFA's attorney fee provisions and abused its discretion when calculating the award. The Ninth Circuit affirmed. Ninth Circuit's Decision On appeal, the Ninth Circuit addressed the applicability of CAFA's coupon provisions to the class action settlement agreement. The court applied the three factors identified in In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 950-951 (9th Cir. 2015) to determine whether a particular instance of class relief qualifies as a coupon settlement including: "(1) whether class members have 'to hand over more of their own money before they can take advantage of' a credit, (2) whether the credit is valid only 'for select products or services,' and (3) how much flexibility the credit provides, including whether it expires or is freely transferrable." Applying the first of these factors, the court reasoned the class payouts provided the number of "Safe Rides Fees" incurred by each class member valued at approximately $1.07. The court reasoned the first factor weighed against defining the credits as coupons because class members could claim their reward upfront in cash and also receive cash if they do not use their credit. The second Online DVD factor weighed in favor of construing the Settlement as a coupon settlement because the credit is valid for Uber services. The court determined the third factor weighed against holding the Settlement was a coupon settlement because, while the credits were not transferable and expire after one year, the credits still become cash without requiring further action and there were no blackout dates. However, relying on precedent, the court reasoned no one factor was dispositive. Ultimately, the Ninth Circuit reasoned that the district court did not err in concluding that the Settlement was not a coupon settlement because two of the three Online DVD factors favored characterizing the Settlement as a non-coupon settlement within the meaning of the CAFA. The court acknowledged that the amounts to be distributed were "modest, even minuscule, " but did not find this dispositive. The Ninth Circuit noted the amount paid in settlement is properly the subject of a fairness hearing — unless the amount is disproportionate to the actual value but is still not determinative of whether the Settlement is a coupon settlement or not. As such, the Court affirmed the district court's attorneys' fees award and held that the district court did not err in awarding fees for hours spent pursuing unsuccessful settlements. Since the final Settlement only amended the first settlement, the hours spent in negotiation were not held to be redundant or unnecessary. Thus, the Court held it was reasonable in comparison with other awards to reduce the fee award below the 25 percent benchmark because of the modest degree of success and because awarding the 25 percent benchmark would have overcompensated class counsel compared to their lodestar. Attorneys' Fees and Additional Clarification CAFA's attorney fee restrictions were reduced from the requested $8.125 million in fees (25% of the face value of the fund and a 4.14 multiplier on the lodestar of $1,961,905) to $5,689,440, or 15.5% of the face value of the fund and 2.9 times the lodestar. The Ninth Circuit held that the district court did not abuse its discretion in calculating the fee award: "While recognizing that 25% of the fund is a 'presumptively reasonable amount,' the district court reduced the award because the Settlement amount fell near the bottom of the 'range of possible approval,' and because on a lodestar cross-check, even the reduced fee award granted a healthy multiplier on the fees actually incurred." It is important to analyze class action fee awards for their reasonableness by reviewing the standards outlined by the Ninth Circuit's decision. [GN] UNITED STATES: Cheng Files Suit in S.D. New York ------------------------------------------------ A class action lawsuit has been filed against United States of America. The case is styled as Sheng-Wen Cheng, individually and on behalf of a class of all others similarly situated v. United States of America, Case No. 1:22-cv-10536-UA (S.D.N.Y., Dec. 12, 2022). The nature of suit is stated as Prisoner Civil Rights. The U.S. -- https://www.usa.gov/ -- is a country of 50 states covering a vast swath of North America, with Alaska in the northwest and Hawaii extending the nation's presence into the Pacific Ocean.[BN] The Plaintiff appears pro se. UNITED STATES: Greene's Bid for Appointment of Counsel Denied ------------------------------------------------------------- In the case, TONY LAMONTE GREENE, et al., Plaintiffs v. THE UNITED STATES, Defendant, Case No. 22-1064 (Fed. Cl.), Judge Kathryn C. Davis of the U.S. Court of Federal Claims denies the Plaintiff's Motion for Appointment of Counsel and all relief requested therein, including the Plaintiff's request for class certification. The Plaintiffs, who are incarcerated at the James Crabtree Correctional Center in Oklahoma and are proceeding pro se, filed the Complaint in the case on Aug. 19, 2022. According to the Complaint, the Plaintiffs claim to be "members/descendants of the Cherokee Nation and/or those freedmen subject to treaties between the Cherokee Nation and the United States," and they allege that their incarceration under Oklahoma state law constitutes unlawful violations of Cherokee treaty rights. They seek $300,000 plus $100 per day of their detention in compensatory damages and $1,000,000 in punitive damages for their allegedly wrongful incarceration. They also requested through the Complaint appointment of counsel and class certification. On Oct. 25, 2022, the Court granted the requests of Plaintiffs Greene, Byrd, Jackson, Smallen, Wilson, and Day to proceed in forma pauperis. On Nov. 23, 2022, Greene filed a Motion for Appointment of Counsel, which is now before the Court. The Defendant did not file a response to the Motion by the Dec. 7, 2022, deadline. By his Motion, the Plaintiff requests both appointment of counsel and class certification. First, the Plaintiff requests that the Court appoints counsel pursuant to 25 U.S.C. Section 175 and Maclin v. Freake, 650 F.2d 885, 886 (7th Cir. 1981), which held that a district court's denial of an indigent, incarcerated pro se plaintiff's request for appointment of counsel was an abuse of discretion under 28 U.S.C. Section 1915. Judge Davis holds that neither source of law provides a basis for appointment of counsel in the case. The present case, in which the Plaintiff seeks monetary damages from the United States for the actions of officials and individuals in his criminal proceedings, involves neither the type of extraordinary circumstances nor extreme hardship warranting the exercise of the Court's power under Section 1915(e)(1). Because the Plaintiff only seeks monetary compensation, there is no risk that the outcome of the case will prolong his incarceration or otherwise further divest him of personal liberty. Even if he were to follow the Maclin standard, Judge Davis would conclude counsel should not be appointed to represent the Plaintiff in the case. The Court's holding in Maclin rested in significant part on the fact that the plaintiff faced severe medical complications that prevented him from prosecuting his case. The Plaintiff does not allege that he faces the same physical restraints, and the Plaintiff's concerns regarding fact-finding and fact witnesses have relatively less pertinence here where adjudication of the Plaintiff's claims will likely focus more on legal arguments. Accordingly, while the Plaintiff may have no professional legal training, that fact alone would not warrant appointment of counsel even under the balancing test of Maclin. Because the Plaintiff's suit seeks monetary damages, the outcome of the case will not prolong the Plaintiff's incarceration and will not otherwise implicate his personal liberty. The absence of "extreme circumstances," such as a threat to the Plaintiff's liberty, belies any call for the Court to appoint counsel in the case. Accordingly, Judge Davies denies the Plaintiff's request for appointment of counsel. In addition to appointment of counsel, the Plaintiff requests "certification of class status." His proposed class includes "members and descendants of members of the Cherokee Nation and those freedmen and their descendants subject to treaties between the Cherokee Nation and the United States." Because all the Plaintiffs in the case are proceeding pro se, the adequacy requirement of RCFC 23 is not met. The Plaintiff is acting pro se and lacks formal legal training, and thus has not demonstrated that he can fairly represent the alleged rights of a class of individuals. For the foregoing reasons, Judge Davis denies the Plaintiff's Motion for Appointment of Counsel and all relief requested therein, including his request for class certification. A full-text copy of the Court's Dec. 9, 2022 Memorandum & Order is available at https://tinyurl.com/4y2p3yf3 from Leagle.com. UNIVERSITY OF ILLINOIS: Bid to Certify Class in Brown Suit Denied ----------------------------------------------------------------- In the case, DERICK BROWN, ATIBA FLEMONS, & JEFFREY TAYLOR, on behalf of themselves and others similarly situated, Plaintiffs v. THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Defendant, Case No. 2:19-cv-02020 (C.D. Ill.), Judge Joe Billy McDade of the U.S. District Court for the Central District of Illinois, Peoria Division, denies the Plaintiffs' Motion to Certify Class. The Plaintiffs are three Black employees who currently work at Defendant's Urbana-Champaign campus (UIUC). They charge the Defendant with discrimination against Black employees in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq., and have filed this putative class action lawsuit on behalf of themselves and their colleagues to seek redress. According to the Plaintiffs, the University's Nondiscrimination Policy (NDP) is discriminatory and the University's Office of Access and Equity (OAE) -- the unit tasked with investigating alleged violations of the NDP -- has engaged in a pattern and practice of discrimination by systematically failing to promptly evaluate and ameliorate NDP complaints arising from alleged race-based misconduct. Regarding the former claim, the Plaintiffs allege the NDP creates a more demanding standard of proof than is appropriate under Title VII in addressing complaints of race-based misconduct without the protections and benefits afforded to litigants formally pursuing a Title VII claim in court. And regarding the latter, they allege the "OAE's standard operating procedure is to guarantee a finding that a violation of the NDP has not occurred, thus perpetuating racial hostility." To maintain this "inexorable zero," the Plaintiffs claim OAE staff members "refer draft investigatory findings for Legal Review only where there is a preliminary recommendation that a violation of the NDP is indicated, ensuring that UIUC's legal department will override the preliminary determination." They further claim the OAE maintains a practice of nonenforcement by purposefully disregarding provisions of the NDP aimed at preventing harassment, and by taking no measures to mete out discipline, mandate reporting of racial harassment, or mandate training on the NDP for all employees. To remedy these claims, the Plaintiffs seek injunctive relief directing Defendant to overhaul the NDP and its complaint procedure. The Plaintiffs now seek certification of a class comprising "all individuals identifying as Black and/or African American who are currently employed at UIUC, or who have been employed by UIUC at any point since Jan. 1, 2014, and who have not held a supervisory position within System Human Resources, Illinois Human Resources, campus unit offices for human resources, or the Office of Access and Equity at any point since Jan. 1, 2014." Of the Rule 23(a) requirements, the Defendant only challenges commonality and typicality. Judge McDade accepts the implicit concession that the Plaintiffs' proposal meets the requirements of numerosity and fair and adequate representation by the named parties and finds the Plaintiffs' Memorandum in support of their Motion for Class Certification demonstrates by a preponderance of the evidence that these elements are satisfied. The same cannot be said for the requirements of commonality and typicality. Judge McDade holds that the Plaintiffs have not demonstrated the OAE's NDP complaint procedure is the only avenue to avoid the application of that defense. If, as he suspects, employees can and do report race-based misconduct directly to University officials or units other than the OAE, the propriety and efficacy of the NDP and its complaint procedure do not present issues common to such individuals. For these reasons, Judge McDade finds that the Plaintiffs have failed to meet their burden to prove commonality such that the answers to their putative common questions will resolve an issue that is central to the validity of each one of the claims in one stroke. The Plaintiffs' claims are not typical of the putative class members' claims as well, Judge McDade opines. He says the named Plaintiffs and the two class exemplars represent five of the approximately 60 NDP complaints asserting race-based misconduct evaluated by the OAE during the class period. As stated, the number of NDP complaints filed in the relevant time period represents an infinitesimal fraction of the putative class, meaning the vast majority of the putative class members were not subject to the same practice or conduct that comprises the gravamen of the Plaintiffs' and the class exemplars' claims: the OAE's NDP and complaint procedure. As these experiences vary wildly it cannot be said that the Plaintiffs' experience is typical of the entire class; rather, it appears the Plaintiffs' and the exemplars' experiences are an extreme minority. For these reasons and those discussed in the commonality analysis, the Plaintiffs have failed to adequately prove typicality. Because the Plaintiffs have failed to meet their burden to prove commonality and typicality, Judge McDade does not consider the parties' arguments relating to Rule 23(b)(2) or (c)(4). The Plaintiffs' Motion for Class Certification id denied. The matter is referred to Magistrate Judge Long for a case management hearing to establish the procedures moving forward. A full-text copy of the Court's Dec. 9, 2022 Order & Opinion is available at https://tinyurl.com/5n8er3pm from Leagle.com. USA WASTE: Arellano Suit Removed to E.D. California --------------------------------------------------- The case captioned as Lori Arellano, as an individual and on behalf of all others similarly situated v. USA WASTE OF CALIFORNIA, INC., a Delaware corporation; and DOES 1 through 50, inclusive, Case No. 200801 was removed from the Superior Court for the State of California, in and for the County of Shasta, to the United States District Court for the Eastern District of California on Dec. 9, 2022, and assigned Case No. 2:22-at-01246. The Complaint asserts a single cause of action for violation of California Labor Code for alleged failure to issue accurate wage statements.[BN] The Defendants are represented by: David J. Dow, Esq. LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, Ca 92101.3577 Phone: 619.232.0441 Fax: 619.232.4302 Email: ddow@littler.com VERDECO RECYCLING: Avila Sues Over Unpaid Minimum, Overtime Wages ----------------------------------------------------------------- Alfonso Avila, on behalf of himself and others similarly situated v. VERDECO RECYCLING, INC.; and DOES 1 to 100, inclusive, Case No. 22STCV38384 (Cal. Super. Ct., Los Angeles, Cty., Dec. 9, 2022), is brought seeking unpaid wages and interest thereon for failure to pay wages for all hours worked at minimum wage; overtime wages for overtime hours worked; overtime hours at the proper overtime rate of pay; failure to authorize or permit all legally required and/or compliant meal periods or pay meal period premium wages; failure to authorize or permit all legally required and/or compliant rest periods or pay rest period premium wages; statutory penalties for failure to timely pay earned wages during employment; statutory penalties for failure to provide accurate wage statements; statutory waiting time penalties in the form of continuation wages for failure to timely pay employees all wages due upon separation of employment; injunctive relief and other equitable relief; reasonable attorneys' fees pursuant to the Labor Code. The Plaintiff and similarly situated hourly non-exempt employees worked more minutes per shift than Defendants credited them with having worked. The Defendants failed to pay Plaintiff and similarly situated employees all wages at the applicable minimum wage for all hours worked due to Defendants' policies, practices, and/or procedures including, but not limited to: Requiring Plaintiff and similarly situated employees to routinely remain on-duty during off-the-clock meal breaks. The Defendants failed to pay Plaintiff and similarly situated employees all wages at the applicable minimum wage for all hours worked due to Defendants' policies, practices, and/or procedures including, but not limited to: Requiring Plaintiff and similarly situated employees to routinely remain on-duty during off-the-clock meal breaks. The Plaintiff was not paid for this time. To the extent the employees had already worked 8 hours in the day and on workweeks they had already worked 40 hours in a workweek, the employees should have been paid overtime for this unpaid time, says the complaint. The Plaintiff was employed by the Defendants as an hourly non-exempt employee from August 2021 until May 30, 2022. VERDECO RECYCLING, INC. is authorized to do business within the State of California.[BN] The Plaintiff is represented by: Joseph Lavi, Esq. Vincent C. Granberry, Esq. Pooja V. Patel, Esq. LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Boulevard, Suite 200 Beverly Hills, CA 90211 Phone: (310) 432-0000 Facsimile: (310) 432-0001 Email: jlavi@lelawfirm.com vgranberry@lelawfirm.com ppatel@lelawfirm.com WHT1@lelawfirm.com VILLAGE CAREGIVING: Butler Sues Over Failure to Pay Overtime Wages ------------------------------------------------------------------ Jennifer Butler, on behalf of herself and others similarly situated v. VILLAGE CAREGIVING, LLC, Case No. 2:22-cv-04359-ALM-EPD (S.D. Ohio, Dec. 12, 2022), is brought against the Defendant for its failure to pay employees overtime wages, seeking all available relief under the Fair Labor Standards Act of 1938; the Ohio Minimum Fair Wage Standards Act; and the Ohio Prompt Pay Act. The Plaintiff regularly worked more than 40 hours in a workweek. During her employment with the Defendant, the Plaintiff worked as an HHA and provided companionship services, domestic services, home care, and other in-home services for the Defendant's clients/patients. During her employment with the Defendant, the Plaintiff regularly performed overtime work without compensation. The Plaintiff cared for multiple patients (i.e., clients) throughout the day, and, as such, they were required to drive between patients' homes. However, the Defendant did not pay the Plaintiff for their travel time between patients' homes. As a result of the Defendant's failure to compensate the Plaintiff for their travel time between the Defendant's patients' homes, the Plaintiff was not paid one-and-one-half times their regular rates of pay for all hours worked over 40 in a workweek, says the complaint. The Plaintiff primarily worked as an hourly, non-exempt employee of the Defendants. The Defendant is a provider of in-home healthcare services and is the largest privately owned home care agency in the United States.[BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. Kelsie N. Hendren, Esq. Tristan T. Akers, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Rd., Suite 126 Columbus, OH 43220 Phone: 614-949-1181 Fax: 614-386-9964 Email: mcoffman@mcoffmanlegal.com agedling@mcoffmanlegal.com khendren@mcoffmanlegal.com takers@mcoffmanlegal.com VIVERANT PT: Reed Files TCPA Suit in D. Minnesota ------------------------------------------------- A class action lawsuit has been filed against Viverant PT LLC. The case is styled as Mitchell Reed, on behalf of himself and all others similarly situated v. Viverant PT LLC, Case No. 0:22-cv-03043-WMW-JFD (D. Minn., Dec. 8, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Viverant -- https://viverant.com/ -- provides physical therapy services such as general orthopedics, pelvic health, dry cupping and pilates.[BN] The Plaintiff is represented by: Carter B Lyons, Esq. Thomas J. Lyons, Jr., Esq. CONSUMER JUSTICE CENTER P.A. 367 Commerce Court Vadnais Heights, MN 55127 Phone: (612) 770-4221 Fax: (651) 704-0907 Email: carter@consumerjusticecenter.com tommy@consumerjusticecenter.com VOLVO CAR USA: Smith Sues Over Wiretapping of Website Visitors -------------------------------------------------------------- RUSSELL SMITH, individually and on behalf of others similarly situated, Plaintiff v. VOLVO CAR USA, LLC, Defendant, Case No. 3:22-cv-01965-AJB-AGS (S.D. Cal., Dec. 13, 2022) alleges violation of the Federal Wiretap Act and the California Invasion of Privacy Act in relation to the Defendant's unauthorized interception, collection, recording, and dissemination to the Plaintiff's and Class Members' communications and data. The Plaintiff alleges in the complaint that the Defendant made unauthorized interception and connection to the Plaintiff's and Class Members' electronic communications through the use of "session replay" spyware that allowed Defendant to read, learn the contents of, and make reports on the Plaintiff's and Class Members' interactions on Defendant's website. The Defendant utilized "session replay" spyware to intercept the Plaintiff's and the Class Members' electronic computer-to-computer data communications, including how the Plaintiff and Class Members interacted with the website, mouse movements and clicks, keystrokes, search items, information inputted into the website, and pages and content viewed while visiting the website. Defendant intentionally tapped and made unauthorized interceptions and connections to Plaintiff and Class Members' electronic communications to read and understand movement on the website. The Defendant never sought consent and the Plaintiff and Class Members never provided consent the for Defendant's unauthorized access to their electronic communications, says the suit. VOLVO CAR USA, LLC manufactures, markets, and sells automobiles. The Company offers wholesale distribution of new and used passenger automobiles, trucks, trailers, and components. [BN] The Plaintiff is represented by: Joshua B. Swigart, Esq. SWIGART LAW GROUP, APC 2221 Camino del Rio S, Ste 308 San Diego, CA 92108 Telephone: (866) 219-3343 Email: Josh@SwigartLawGroup.com - and - Daniel G. Shay, Esq. LAW OFFICE OF DANIEL G. SHAY 2221 Camino del Rio S, Ste 308 San Diego, CA 92108 Telephone: (619) 222-7429 Email: DanielShay@TCPAFDCPA.com WAKEFERN FOOD: Fails to Pay Proper Wages, Smith Suit Alleges ------------------------------------------------------------ BENJAMIN SMITH, individually and on behalf of all others similarly situated, Plaintiff v. WAKEFERN FOOD CORP.; ABC CORPS. 1-55; XYZ COMPANIES 1-55; and JANE & JOHN DOES 1-50, Defendants, Case No. 3:22-cv-07247 (D.N.Y., Dec. 13, 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 Smith was employed by the Defendants as warehouseman. WAKEFERN FOOD CORP. supplies food and consumer products. The Company offers grocery, meat, frozen food, and dairy products, as well as provides private label brand development, advertising support, and category management services. [BN] The Plaintiff is represented by: Ravi Sattiraju, Esq. SATTIRAJU & THARNEY, LLP 50 Millstone Road Building 300, Suite 202 East Windsor, NJ 08520 Telephone: (609) 469-2110 Facsiimile: (609) 228-5649 Email: rsattiraju@s-tlawfirm.com - and - Harold I. Lichten, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, #2000 Boston, MA 02114 Telehone: (617) 994-5800 Facsimile: (617) 994-5801 Email: hlichten@llrlaw.com WELLS FARGO & COMPANY: Price Files Suit in Cal. Super. Ct. ---------------------------------------------------------- A class action lawsuit has been filed against Wells Fargo & Company, et al. The case is styled as Janisha Lee Price, Carmen Zamarippa, and on behalf of all employees similarly situated v. Gonchez Realty Corp., Case No. 34-2022-00331236-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Dec. 12, 2022). The case type is stated as "Other Employment - Civil Unlimited." Wells Fargo & Company -- https://www.wellsfargo.com/ -- is an American multinational financial services company with corporate headquarters in San Francisco, California.[BN] The Plaintiff is represented by: Christina A. Humphrey, Esq. CHRISTINA HUMPHREY LAW, P.C. 1117 State St Santa Barbara, CA 93101 Phone: (805) 618-2924 - and - Richard E. Quintilone, II, Esq. QUINTILONE & ASSOCIATES El Toro Road, Suite 100 Lake Forest, CA 92630 Phone: (949) 458-9675 YAZAM INC: Faces Class Suit Over Ridesharing Service Empower ------------------------------------------------------------ Regan Zambri Long PLLC filed a class action lawsuit on behalf of consumers who used new ridesharing service Empower, alleging that the service violates the District of Columbia Consumer Protection Procedures Act. The complaint alleges that Empower's business model is designed to underprice market leaders Uber and Lyft. According to the complaint, Empower is consciously violating District of Columbia consumer protection laws requiring that it perform background checks of its drivers and that it maintain $1 million of liability insurance to protect passengers, drivers, and other people on the road in the event of an auto accident. According to the complaint, the plaintiff, Alicia Woodford, requested a ride through the Empower app on August 6, 2022. While driving Ms. Woodford to her destination, the driver collided with a concrete median, resulting in injuries to Ms. Woodford. It was later discovered that neither Empower nor the driver had any insurance to cover her injuries. The complaint further states: "By, in violation of District of Columbia law, choosing not to obtain the required insurance coverage, not to require its Drivers to obtain the required insurance coverage, not to disclose the insurance requirements on its website, and to remain willfully blind as to whether or not its Drivers are in fact carrying any insurance coverage, Defendant Empower not only fraudulently misleads its passenger-consumers; it also exposes them, other road users, and even its own drivers to the risk of financial ruin in the event of a crash." In addition to failing to provide the required liability insurance, the complaint also alleges that Empower does not perform background checks on its drivers. District of Columbia law requires that rideshare companies retain an accredited third party to conduct a background check on each driver, which includes a local and national criminal background check, a full driving record check, and a national sex offender database background check. However, the complaint alleges Empower does not perform these checks on its drivers. The plaintiff is represented by Regan Zambri Long personal injury attorneys Patrick Regan, Christopher Regan, and Emily Lagan. For more information about the complaint, visit reganfirm.com. About Regan Zambri Long PLLC Washington, DC personal injury law firm Regan Zambri Long PLLC strives to provide legal representation of the highest caliber to our clients. Focusing primarily on personal injury law, we passionately advocate for those who have been negligently injured. For more information, visit rhllaw.com. Contact Information: Name: Sue Vester Email: sue@bobdigitalmarketing.com Job Title: Marketing Representative [GN] YUGA LABS: Celebrities Among Defendants in Bored Ape NFT Scheme --------------------------------------------------------------- Shirley Halperin, writing for Variety, reports that a class-action lawsuit contends that stakeholders in Yuga Labs, the parent company of NFT series Bored Ape Yacht Club and its affiliated digital products, engaged in a conspiracy with celebrities to defraud potential investors. In the complaint, filed Dec. 8 in federal district court in L.A., Yuga partners -- including veteran music manager Guy Oseary -- are named among the 37 defendants, who include Kevin Hart, Gwyneth Paltrow, Madonna, Justin Bieber, Serena Williams, Jimmy Fallon, Paris Hilton, Snoop Dogg, The Weeknd, Post Malone and NBA star Steph Curry. Also named is Amy Wu, who recently exited troubled cyptocurrency exchange FTX and served as a consultant and board member of the ApeDAO. The lawsuit seeks monetary damages of at least $5 million on behalf of the plaintiffs and the putative class of "all others similarly situated." Reached by Variety, a Yuga Labs spokesperson said, "In our view, these claims are opportunistic and parasitic. We strongly believe that they are without merit, and look forward to proving as much." Plaintiffs Adonis Real and Adam Titcher claim that in promoting or endorsing the Bored Ape community through social media and other mediums, these entertainers and athletes caused the value of non-fungible tokens (NFTs) to balloon to "artificially inflated and distorted prices" and engaged in misleading promotions that did not disclose alleged financial compensation. The two also allege that the "scheme" involved MoonPay, which facilitated transfers of ownership to the celebrities named, some of whom were backers of the service. One such investor named is Fallon, whose on-air name-check of MoonPay as "the PayPal of crypto" on a Nov. 11, 2021, episode featuring Mike Winkelmann, the digital artist known as Beeple, is cited, as is a Jan. 24, 2022, appearance on "The Tonight Show" by Hilton. Another prominent piece of promotion came by way of an FTX teaser commercial featuring Steph Curry carving an ice sculpture of a Bored Ape with the tagline, "When learning about crypto, you'll be anything but bored." The complaint states that there exist more than 103,000 unique account holders of Yuga securities -- which includes the Bored Ape offshoot Mutant Ape Club; the metaverse "Otherside," which offered virtual land sales; and the token ApeCoin -- of which Yuga receives a 2.5% royalty rate "every time one of its NFTs is resold on the secondary market." The period specified in the class action is from April 24, 2021, to present. At its portfolio height in early 2022, Bored Ape NFTs were fetching in the hundreds of thousands of dollars with what were deemed rare characteristics. Plaintiff Titcher purchased a Mutant Ape and an Otherdeed for the Bored Ape metaverse Otherside, and Real purchased ApeCoin tokens, according to the lawsuit. Investing in NFTs is not without risk, particularly as the trade of such assets remains unregulated. Also affecting the market is the crypto crash which began in early summer and saw another blow in November with the collapse of FTX. A class-action lawsuit filed Nov. 15 accused FTX celebrity "brand ambassadors" including Larry David, Tom Brady, Giselle Bündchen, Shaquille O'Neal and Steph Curry of deceptively encouraging consumers to invest in the company. The lawsuit against Yuga Labs and others was filed in the U.S. District Court for the Central District of California, Western Division. The case is docket no. 2:22-CV-08909-FMO-PLA. The plaintiffs are represented by San Diego firm Scott & Scott, which went public with its intention to form a class action in July. In November, the firm also targeted, via a series of "investigation alerts," Warner Music Group, Live Nation, Beyond Meat and Poshmark, among others, for breach of fiduciary duties. A class action lawsuit against Kim Kardashian, Floyd Mayweather and other celebrity promoters of EthereumMax, was dismissed by a federal judge. Per a CNBC report, judge Michael Fitzgerald of the Central District of California noted in his dismissal, "While the law certainly places limits on those advertisers, it also expects investors to act reasonably before basing their bets on the zeitgeist of the moment." [GN] [*] Four Business Interruption Class Suits Return to Court in 2023 ------------------------------------------------------------------ InsuranceNEWS.com.au reports that four business interruption class actions will return to the Federal Court next year, after a preliminary hearing was held. Lawyers for the insureds have been asked to file amended applications and statements of claims following outcomes from the Insurance Council of Australia second test case. Insurers maintain the matters shouldn't proceed as class actions. Chief Justice James Allsop ordered at a hearing in Sydney that the proceedings be stood over for a case management hearing before Justice Michael Lee on a date to be fixed. Separately, a preliminary Federal Court hearing was also held for a dispute filed by Shine Lawyers on behalf of Joyo-Kin Pty Ltd, the operator of Jetts Fitness Ocean Gove, which is contesting a claim denial by Hollard. Shine National Practice Leader - Commercial Disputes Bree Smith says the number of policies that may respond has narrowed significantly since the ICA test case decisions, but the firm believes the gym's policy is one of those that's valid. "The problem we are facing is that the onus is actually on the policyholder to prove that there were people within 20 kilometres of their business who were infected with Covid-19 at the time they were forced into lockdown," she told insuranceNEWS.com.au. Ms Bree says the firm is having to make freedom of information requests to obtain more specific data around community transmission, and that generally insurers are making it challenging for businesses that may have valid claims. "They are making it really difficult to get these ones over the line," she said. "We are nearly three years down the track and these small business owners are still out of pocket." Chief Justice Allsop ordered both sides in the Jetts policy dispute to next year provide evidence they are seeking to rely on, ahead of a further case management hearing. [GN] [*] NZ Gov't Accepts Key Recommendations on Class Action Reform --------------------------------------------------------------- Simpson Grierson disclosed that the New Zealand Government has accepted in principle the key recommendations of Te Aka Matua o te Ture | Law Commission on class action and litigation funding law reform, with policy work set to start in 2023. But don't expect to see changes coming into effect anytime soon. The Law Commission tabled its report in late June 2022 after a substantial review of the law relating to class actions and litigation funding, which took over two years. A summary of its key recommendations can be found here. Government's response While the report contained 121 recommendations, it is not clear at this stage to what extent these will be adopted. The Government has said it accepts the following key recommendations 'in principle': a statutory regime for class actions (via a new Class Actions Act) will provide clarity and could enhance access to justice; abolishing the torts of maintenance and champerty would clarify the permissibility of litigation funding; and court oversight of litigation funding agreements in class actions should aid in ensuring the terms of agreements are fair and reasonable. However, the Government noted that some areas would require further work, including policy and implementation considerations of the Law Commission's more controversial recommendation in relation to the introduction of a public fund for public interest class actions. Additional work is also needed on whether litigation funding oversight should be restricted only to class actions, and the impacts of both class actions and court oversight of litigation funding agreements on court resources and processes (when weighed against the increase in the number of active cases currently before the High Court). Where to next? The Government intends to undertake policy work to advance the principles of the Law Commission's recommendations. However, this is expected to take some time with the Government stating: Due to the technical nature of the issues and the need for legislative reform to give effect to the recommendations, advancing these reforms will take a period of time and resourcing this work will need to be balanced against other Government priorities. Given other priorities currently facing the Government, it seems unlikely we will see any real progress ahead of the next election. 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