/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230112.mbx C L A S S A C T I O N R E P O R T E R Thursday, January 12, 2023, Vol. 25, No. 10 Headlines ACE DATA GROUP: Rodriguez Files ADA Suit in E.D. New York AMICA MUTUAL: 1st Cir. Affirms Dismissal in Part of Gottlieb Suit BANK OF AMERICA: Choi Suit Removed to N.D. Illinois BLUE DEAL: Website Inaccessible to Blind Users, Genwright Claims BROSNAN RISK CONSULTANTS: Arcaina Files Suit in Cal. Super. Ct. C&S DELI GROCERY: Carbonel Sues Over Unpaid Overtime Wages CAPITAL PLUS: Seeks to Strike Plaintiffs' Class Certification Bid COREPOWER YOGA: Rodriguez Files ADA Suit in E.D. New York DELI MANAGEMENT: Seeks More Time to File Tolling Bid Response DEMANDBASE INC: Appeals Ruling in Gbeintor Suit to 9th Circuit DMG MORI: $825K Class Settlement in Arnold Suit Wins Final Approval DOLE PACKAGED: Bid to Dismiss Jackson Class Suit Granted in Part EVEREST GLOBAL: Adkins Files Suit in D. New Jersey FASTAFF LLC: Egan Sues Over Predatory Business Practices FLEETCOR TECH: Class Cert Bid Filing Extended in Lyle Class Suit FRANKLIN WIRELESS: Ali Wins Class Certification Bid HARBOR FITNESS CENTER: Rodriguez Files ADA Suit in E.D. New York HONDA MOTOR: Class Certification Bid Filing Due May 25 HOTEL COLLECTION: Petrova Sues Over Unlawful Advertising of Prices HOUSEKEEPING SERVICES: Lima Sues Over Unpaid Overtime Wages INTERSTATE MANAGEMENT: Class Cert Bid Filing Due Jan. 27, 2025 IU CREDIT UNION: Ind. App. Reverses Arbitration Order in Land Suit JACK SKEEN: Seeks More Time to File Class Cert Reply KIA AMERICA: Baker Files TCPA Suit in W.D. Michigan KIA AMERICA: Winston Suit Removed to C.D. California KRAFT HEINZ: Case Management, Sched Order Entered in Adams KRAFT HEINZ: Forbes Sues Over Mislabeled Apple Juice Products LASTPASS US: Sued Over Failure to Safeguard Sensitive Data MANTA SLEEP: Faces Fontanez Suit Over Blind-Inaccessible Website MARIA PAPPAS: Bell Files FDCPA Suit in N.D. Illinois MDL 2949: Parise Suit Consolidated in Hip Implant Product Row MDL 2973: Morrison Suit Consolidated in Elmiron Liability Row MDL 3014: 2 Suits Consolidated in Ventilator Product Liability Row MDL 3050: 8 Suits Consolidated in Chantix Product Liability Row MDL 3051: 6 Suits Consolidated in ARC Airbag Product Liability Row NARRAGANSETT ELECTRIC: 2nd Amended Stipulated Sched Order Entered NATIONAL RECOVERY: Grosse Files FDCPA Suit in M.D. Pennsylvania NYREV INC: Rodriguez Files ADA Suit in E.D. New York OLIVE GARDEN: Despres Sues Over Unpaid Minimum Wages PATTERN ENERGY: Judge Recommends Approval of Class Cert. Bid PELOTON INTERACTIVE: Oral Argument Hearing Set for Feb. 28 PROGRESSIVE DIRECT: Court Grants in Part Bid to Dismiss Watson Suit PURDUE FEDERAL: Grant of Arbitration Bid in Neal Suit Affirmed QUANTUMSCAPE CORP: Appeals Class Cert. Order in Malriat Suit RADIUS GLOBAL: Snyder Files FDCPA Suit in S.D. New York RAEL INC: Blansette Sues Over Deceptive and Misleading Marketing RAPID INVESTMENTS: Denial of Arbitration in Reichert Suit Affirmed REALPAGE INC: Kramer Sues Over Conspiracy to Fix Rental Prices REALPAGE INC: Sued Over Conspiracy to Fix Rental Housing Prices RECEIVABLES PERFORMANCE: Ramirez Suit Removed to N.D. Illinois REPUBLIC SERVICES: Augustine Files TCPA Suit in D. Arizona RESURGENT CAPITAL: Walsh Files FDCPA Suit in D. Connecticut RHODE ISLAND: District Court Grants Bid to Stay Liberty v. RIDOC RICKSHAW BAGWORKS: Genwright Files ADA Suit in S.D. New York SCANSTAT TECHNOLOGIES: Morton Suit Removed to D. South Carolina SEEMAN HOLTZ: $650K Class Deal in Millstein Suit Has Final Approval SENTINEL PROTECTION: Paul Sues Over Security Guards' Unpaid OT SKYWEST AIRLINES: Hearing on Summary Adjudication Bid Vacated SOULCYCLE INC: Rodriguez Files ADA Suit in E.D. New York TARGET CORP: Gouwens' Amended Complaint Dismissed With Prejudice THEATRE REFRESHMENT: Malcher Sues Over Bartenders' Unpaid Wages UNITED BEHAVIORAL: Discovery & Class Cert Deadlines Extended VISIONEER INC: Fontanez Sues Over Blind-Inaccessible Website ZAER LTD: Jackson Files ADA Suit in S.D. New York ********* ACE DATA GROUP: Rodriguez Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Ace Data Group, LLC. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. Ace Data Group, LLC, Case No. 1:23-cv-00014 (E.D.N.Y., Jan. 2, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. ACE Data Group, LLC -- https://www.datarecovery.net/ -- provides single-source data recovery, data processing, consulting, and forensic services for enterprise clients and consumers.[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 AMICA MUTUAL: 1st Cir. Affirms Dismissal in Part of Gottlieb Suit ----------------------------------------------------------------- In the case, PETER GOTTLIEB, individually and on behalf of all persons similarly situated, Plaintiff, Appellant v. AMICA MUTUAL INSURANCE COMPANY, Defendant, Appellee, Case No. 22-1074 (1st Cir.), the U.S. Court of Appeals for the First Circuit affirms the district court's dismissal in part of Gottlieb's complaint for failure to state a claim and its entry of summary judgment disposing of the remainder of Gottlieb's claim. Gottlieb claims that the price he agreed to pay Amica to insure his home was $16 too high because it was based on an excessive coverage limit. Claiming as well that other Amica insureds paid too much to insure their homes, he filed the putative class action. Gottlieb owns a home in Burlington, Massachusetts. In 2015, he purchased a homeowners insurance policy from Amica that covered him from March 10, 2015, through March 10, 2016. The coverage limit for replacing his house in the event of a loss was $311,000, for which Gottlieb paid a $730 premium. The policy also contained an endorsement providing additional coverage of up to 130% of the coverage limit if Gottlieb agreed to certain conditions. The policy contained no other language allowing Amica to increase coverage limits. No loss occurred during the one-year term of the policy. With the expiration of the policy term approaching, Amica sent Gottlieb a proposed renewal policy, which contained the same endorsement, along with a cover letter. The proposed premium for the renewal policy was $795 ($65 more than the premium for the original policy). Sixteen dollars of the increase was due to a higher coverage limit for Gottlieb's house ($321,000 versus $311,000). Amica arrived at that coverage limit based on a multiplier calculated by a company called E2Value, Inc., which projected costs for Gottlieb's zip code based on various data sources. The rest of the increase in the premium was due to changes in the base rate and other changes in Amica's public rate filing. The cover letter accompanying the renewal pointed out that the increased coverage limit was partially attributable to higher reconstruction costs. After calling Amica to clarify how much coverage he would get under the endorsement, Gottlieb accepted the 2016-2017 renewal policy, and Amica issued the policy. Gottlieb then sued Amica, claiming that the increased coverage limit on his house and premium in the 2016-17 violated the terms of his contract with Amica. He argues that the endorsement in his original policy limited how Amica could set the coverage limit in the renewal policy; namely, Amica could change the original limit only if it did a new home inspection, or accounted for an increase in inflation. Because Amica did not reinspect Gottlieb's home and because his coverage limit allegedly increased more than the rate of inflation, Gottlieb contends that Amica breached the policy. Gottlieb also argues that even if Amica did not explicitly breach the policy, it breached the implied covenant of good faith and fair dealing. In his view, Amica acted in bad faith by adjusting his coverage limit based on impermissible factors (including projected future inflation and reconstruction costs), attempting to rewrite the contract, and deceiving him about why the limit was increasing. As to the claimed deception, Gottlieb contends that Amica lied to him by stating in the cover letter that one reason for the proposed increase in his dwelling limit was a rise in reconstruction costs. Because Amica received the benefit of Gottlieb's additional premium but provided no additional practical benefit to Gottlieb, he argues, he is also entitled to relief for unjust enrichment, money had and received, and violation of Massachusetts law prohibiting deceptive business practices, Mass. Gen. L. c. 93A ("Chapter 93A"). Gottlieb filed his complaint in Middlesex Superior Court. Amica then removed the case to the U.S. District Court for the District of Massachusetts. The district court dismissed the breach of contract and implied covenant of good faith and fair dealing claims. Following discovery and an amendment to the complaint, the district court granted summary judgment for Amica on the unjust enrichment, money had and received, and Chapter 93A claims. It found that the equitable claims were unavailable because there was an adequate remedy at law and a valid contract. It also concluded that there was no Chapter 93A violation because although Gottlieb had been charged a higher premium, he had received the benefit of additional coverage. Gottlieb appeals from both the denial of the motion to dismiss and the grant of summary judgment for Amica. The First Circuit finds that because the original policy did not limit Amica's freedom in proposing a coverage limit for the renewal policy, Gottlieb's breach of contract claim fails. Gottlieb was not entitled under the initial contract to a proposed renewal coverage limit reflecting only inflation or a new property evaluation. Gottlieb's claim for breach of the implied covenant of good faith and fair dealing fares no better. The First Circuit holds that the limitation on Amica's changes to the dwelling limit during the term of the original policy did not apply to the setting of the initial coverage limit in the renewal policy. Given that conclusion, Gottlieb cannot claim to have had any reasonable expectation to the contrary. The covenant of good faith and fair dealing therefore does not secure this benefit that the contract never guaranteed in the first place. Nor did Amica do anything to deprive Gottlieb of the reasonably expected benefits of the policy. Gottlieb's equitable claims must fail as well, the First Circuit finds. It says despite Gottlieb's argument to the contrary, the policy plainly governs the relationship between the parties and the subject matter of the dispute (Gottlieb's premium), so Gottlieb's equitable claims are foreclosed. That leaves Gottlieb's Chapter 93A claim. The First Circuit finds that it is unable to conclude that Amica by deception sold Gottlieb coverage he could never use. Evidence that replacement costs may have increased less than Amica's estimate does not suffice to show that Gottlieb's coverage limit was so high as to provide illusory coverage. And, to the extent Gottlieb argues that he was fraudulently induced to renew the policy based on the deceptive statement that reconstruction costs had risen, he has not pointed to any evidence that he would have done anything differently, such as seeking alternative coverage or forgoing coverage altogether absent this statement. Gottlieb has thus not shown that he was injured as required for a 93A claim. For the foregoing reasons, the First Circuit affirms the orders of the district court. A full-text copy of the Court's Dec. 30, 2022 Order is available at https://tinyurl.com/yb68f7ne from Leagle.com. John Peter Zavez, with whom Noah Rosmarin, Brendan M. Bridgeland, and Adkins, Kelston & Zavez, P.C., were on brief, for the Appellant. Christopher Michael Reilly -- creilly@sloanewalsh.com -- with whom Laura Meyer Gregory -- lgregory@sloanewalsh.com -- Anthony Antonellis -- aantonellis@sloanewalsh.com -- and Sloane and Walsh, LLP, were on brief, for the Appellee. BANK OF AMERICA: Choi Suit Removed to N.D. Illinois --------------------------------------------------- The case styled as You Jin Choi, on behalf of herself and a class of similarly situated persons v. Bank of America Corporation, Case No. 2022-CH-11363 was removed from the Circuit Court of Cook County, to the U.S. District Court for the Northern District of Illinois on Jan. 3, 2023. The District Court Clerk assigned Case No. 1:23-cv-00021 to the proceeding. The nature suit is stated as Other Contract for Breach of Contract. The Bank of America Corporation -- http://www.bankofamerica.com/-- is an American multinational investment bank and financial services holding company headquartered at the Bank of America Corporate Center in Charlotte, North Carolina.[BN] The Plaintiff is represented by: William Edward Meyer, Jr., Esq. FUKSA KHORSHID LLC 200 W. Superior, Suite 410 Chicago, IL 60654 Phone: (312) 266-2221 Fax: (312) 266-2224 Email: william@fklawfirm.com The Defendant is represented by: Ross Jacob Corbett, Esq. Thomas More Leinenweber, Jr., Esq. WINSTON & STRAWN, LLP 35 W. Wacker Dr. Chicago, IL 60601 Phone: (312) 558-3760 Email: rcorbett@winston.com tleinenweber@winston.com BLUE DEAL: Website Inaccessible to Blind Users, Genwright Claims ---------------------------------------------------------------- THOMAS GENWRIGHT, individually, and on behalf of all others similarly situated, Plaintiff v. THE BLUE DEAL LLC, Defendant, Case No. 150039/2023 (N.Y. Sup., New York Cty., Jan. 2, 2023) is a class action challenging Defendant's discriminatory business practices as its Website thebluedeal.com allegedly contained access barriers that prevented Plaintiff and other visually impaired and/or legally blind individuals from purchasing products thereon, in violation of the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law. The Plaintiff and the Class seek, inter alia, a preliminary and permanent injunction, other declaratory relief, statutory damages, actual and punitive damages, pre-judgment and post-judgment interest, and reasonable attorneys' fees and expense. The Blue Deal specializes in providing USA-made and Union-printed material for Democratic campaigns and Progressive organizations.[BN] The Plaintiff is represented by: William J. Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, 39th Floor New York, NY 10007 Telephone: (212) 595-6200 Facsimile: (212) 595-9700 E-mail: wdownes@mizrahikroub.com BROSNAN RISK CONSULTANTS: Arcaina Files Suit in Cal. Super. Ct. --------------------------------------------------------------- A class action lawsuit has been filed against Brosnan Risk Consultants, LTD. The case is styled as Jocelyn Arcaina, individually and on behalf of all others similarly situated v. Brosnan Risk Consultants, LTD, Case No. STK-CV-UOE-2022-0011865 (Cal. Super. Ct., San Joaquin Cty., Dec. 21, 2022). The case type is stated as "Unlimited Civil Other Employment." Brosnan Risk Consultants, LTD -- https://brosnanrisk.com/ -- is a security and investigations company providing security and security system integration services.[BN] The Plaintiff is represented by: Gregory Mauro, Esq. JAMES HAWKINS APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Phone: (949) 387-7200 Fax: (949) 387-6676 Email: greg@jameshawkinsaplc.com C&S DELI GROCERY: Carbonel Sues Over Unpaid Overtime Wages ---------------------------------------------------------- Viviana Carbonel, on behalf of herself and all other similarly situated employees v. C & S DELI GROCERY INC. (DBA Chino's Corner Deli & Grill) Fermin Chino and Chris Chin, Case No. 1:23-cv-00032 (E.D.N.Y., Jan. 3, 2023), is brought for unpaid overtime wage orders pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), and for violations of the New York Labor Law (the "NYLL"), and overtime wage orders of the New York Commission of Labor. The Plaintiff worked for Defendants in excess of 40 hours per week, without appropriate compensation for the hours over 40 per week that she worked. Defendants failed to pay Plaintiff appropriately for any hours worked over 40 hours and paid her at straight time, which is against the appropriate Labor Laws. The Defendants maintain a policy and practice of requiring the Plaintiff 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 Plaintiff was employed by the Defendants from September 16, 2017, until March 10, 2022. The Defendants own, operate, or control a grocery located in Brooklyn, New York under the name of C & S DELI GROCERY INC.[BN] The Plaintiff is represented by: Lina Stillman, Esq. Toneille Raglan, Esq. STILLMAN LEGAL PC 42 Broadway, 12th Floor New York, NY 10004 Phone: 212-203-2417 Web: www.StillmanLegalPC.com CAPITAL PLUS: Seeks to Strike Plaintiffs' Class Certification Bid ----------------------------------------------------------------- In the class action lawsuit captioned as Eric Greathouse, et al., individually and on behalf of all others similarly situated, v. Capital Plus Financial, LLC, et al., Case No. 4:22-cv-00686-P (N.D. Tex.), the Defendants ask the Court to enter an order striking the Plaintiffs' motion for class certification for failure to include a certification of conference, or in the alternative granting them an extension to February 27, 2023 to respond to Plaintiffs' Motion for Class Certification. Capital Plus was founded in 1996. The Company's line of business includes originating mortgage loans and selling mortgage loans. A copy of the Defendants' motion dated Jan. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3GKZgus at no extra charge.[CC] The Defendant is represented by: Katherine G. Treistman, Esq. Andrew D. Bergman, Esq. Eric N. Whitney, Esq. ARNOLD & PORTER KAYE SCHOLER LLP 700 Louisiana Street, Suite 4000 Houston, TX 77002–2755 Telephone: (713) 576–2400 Facsimile: (713) 576–2499 E-mail: Katherine.Treistman@arnoldporter.com Andrew.Bergman@arnoldporter.com Whitney@arnoldporter.com - and - Michael P. Lynn, Esq. Christopher J. Schwegmann, Esq. LYNN PINKER HURST & SCHWEGMANN , LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 Telephone: (214) 981–3800 Facsimile: (214) 981–3839 E-mail: mlynn@lynnllp.com cschwegmann@lynnllp.com COREPOWER YOGA: Rodriguez Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against CorePower Yoga, LLC. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. CorePower Yoga, LLC, Case No. 1:23-cv-00012 (E.D.N.Y., Jan. 2, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. CorePower Yoga -- http://www.corepoweryoga.com/-- is the largest yoga studio chain in the United States with over 200 studios based in Denver, Colorado.[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 DELI MANAGEMENT: Seeks More Time to File Tolling Bid Response ------------------------------------------------------------- In the class action lawsuit captioned as MOHAMED HISHAM ELTAYEB, individually and on behalf of similarly situated persons, v. DELI MANAGEMENT, INC. d/b/a "Jason's Deli", Case No. 4:20-cv-00385-ALM (E.D. Tex.), the Defendant files an unopposed motion for a seven-day extension of time to file its responses to Plaintiff's Motion for Tolling of Fair Labor Standards Act (FLSA) Statute of Limitations and Plaintiff's Combined Second Renewed Motion for Notice to Potential Plaintiffs and in support. a. Defendant's Response to Plaintiff's Jan. 12, 2023 Motion for Tolling of FLSA Statute of Limitations filed by: b. Defendant's Response to Plaintiff's Jan. 16, 2023 Combined Second Renewed Motion for Notice to Potential Plaintiffs filed by: On December 22, 2022, the Plaintiff filed his Combined Second Renewed Motion for Notice to Potential Plaintiffs and Memorandum in Support ) and Motion for Tolling of FLSA Statute of Limitations According to the First Amended Scheduling Order and Local Rule 7(e) of the Eastern District of Texas, the Defendant's current deadline to file its response to Plaintiff's Motion for Tolling of FLSA Statute of Limitations is January 5, 2023, and Defendant's current deadline to respond to Plaintiff's Combined Second Renewed Motion for Notice to Potential Plaintiffs is January 9, 2023. The Defendant has been unable to complete its responses to these motions due to travel over the holiday season followed by other unanticipated matters that have required the immediate attention of defense counsel. The Defendant's Counsel has conferred with Plaintiff's Counsel, who has stated that Plaintiff does not oppose the relief sought. Deli Management. owns and operates a chain of restaurants. The Company provides salad bars, stuffed potatoes, sandwiches, desserts, meals, and wraps. A copy of the Defendant's motion dated Jan. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3ihYNGC at no extra charge.[CC] The Defendant is represented by: J. Thad Heartfield, Esq . M. Dru Montgomery, Esq. THE HEARTFIELD LAW FIRM 2195 Dowlen Road Beaumont, TX 77706 Telephone: (409) 866-3318 Facsimile: (409) 866-5789 E-mail: thad@heartfieldlawfirm.com dru@heartfieldlawfirm.com - and - Kevin D. Johnson, Esq. Christopher M. Bentley, Esq. Colby J. Ellis, Esq. JOHNSON JACKSON PLLC 100 N. Tampa St., Suite 2310 Tampa, FL 33602 Telephone: (813) 580-8400 Facsimile: (813) 580-8407 E-mail:kjohnson@johnsonjackson.com cbentley@johnsonjackson.com cellis@johnsonjackson.com DEMANDBASE INC: Appeals Ruling in Gbeintor Suit to 9th Circuit -------------------------------------------------------------- Demandbase, Inc., et al., filed an appeal from the District Court's December 5, 2022 ruling entered in the lawsuit styled Amos Gbeintor, on behalf of himself and all others similarly situated v. Demandbase, Inc., InsideView Technologies, Inc., Case No. 4:21-cv-09470-KAW, in the U.S. District Court for the Northern District of California, San Francisco. The suit, filed December 8, 2021, alleges that the Defendants impermissibly use Class Members' names and personal information to advertise paid subscriptions to a product called "InsideView Pro." By using Plaintiff's and Class Members' names, likenesses, photographs, and personas in advertisements for website subscriptions without consent, InsideView has violated their intellectual property and privacy rights. The Plaintiff and Class Members have the right not to have their personas exploited to promote a product with which they have no relationship and no interest in supporting, says the suit. By these actions, InsideView has allegedly violated the California Right of Publicity, codified in Cal. Civ. Code Section 3344, California common law prohibiting misappropriation of a name or likeness, and California's Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200 et seq. On December 5, 2022, Judge Trina L. Thompson entered an Order GRANTING Plantiff's Motion to Stay. The Court VACATED Defendants' motion to dismiss and motion to stay hearings. The appellate case is captioned as Amos Gbeintor, et al. v. Demandbase, Inc., et al., Case No. 23-15001, in the United States Court of Appeals for the Ninth Circuit, filed on Jan. 3, 2023. The briefing schedule in the Appellate Case states that: -- Appellants Demandbase, Inc. and InsideView Technologies, Inc. Mediation Questionnaire was due January 10, 2023; -- Transcript shall be ordered by January 30, 2023; -- Transcript is due on February 28, 2023; -- Appellants Demandbase, Inc. and InsideView Technologies, Inc. opening brief is due on April 10, 2023; -- Appellees Wilton Alderman, Dru Dominci and Amos Gbeintor answering brief is due on May 10, 2023; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Defendants-Appellants DEMANDBASE, INC. and INSIDEVIEW TECHNOLOGIES, INC. are represented by: Julia L. Allen, Esq. Cody Gray, Esq. Ian A. Kanig, Esq. Robert Adam Lauridsen, Esq. KEKER, VAN NEST & PETERS, LLP 633 Battery Street San Francisco, CA 94111 Telephone: (415) 391-5400 Plaintiffs-Appellees AMOS GBEINTOR, WILTON ALDERMAN, and DRU DOMINCI, on behalf of themselves and all others similarly situated, are represented by: Marie Noel Appel, Esq. Michael Ram, Esq. MORGAN & MORGAN 711 Van Ness Avenue, Suite 500 San Francisco, CA 94102 Telephone: (415) 358-7155 - and - Ben R. Osborn, Esq. LAW OFFICE OF BENJAMIN R. OSBORN 102 Bergen Street, Suite 4 Brooklyn, NY 11201 Telephone: (347) 645-0464 - and - Samuel J. Strauss, Esq. TURKE & STRAUSS, LLP 613 Williamson Street, Suite 201 Madison, WI 53703 Telephone: (608) 237-1775 DMG MORI: $825K Class Settlement in Arnold Suit Wins Final Approval ------------------------------------------------------------------- In the case, STEVEN ARNOLD, et al., Plaintiffs v. DMG MORI USA, INC., Defendant, Case No. 18-cv-02373-JD (N.D. Cal.), Judge James Donato of the U.S. District Court for the Northern District of California grants the motion for final approval, the motions for attorneys' fees and costs, and the request for an incentive award for Arnold. The lawsuit is a consumer class action alleging that DMG accessed the consumer reports of prospective employees using an authorization form that violated the Fair Credit Reporting Act (FCRA). After more than three years of litigation, which included class certification and summary judgment for the Plaintiffs on DMG's liability under the FCRA, the parties signed a settlement agreement in July 2021. The Court approved the proposed class settlement on a preliminary basis after holding a hearing. The conditionally certified settlement class consists of "all persons residing in the United States for whom DMG procured or caused to be procured a customer report for employment purposes on or after April 19, 2016, to May 21, 2021." The Court appointed named Plaintiff Arnold as the class representative, and Aashish Desai and Adrianne De Castro of Desai Law Firm, P.C., as the class counsel. The settlement agreement provides for a settlement of $825,000 to be funded by DMG. The parties have agreed to divide the $825,000 into two separate funds: a class distribution fund of $375,000, and an attorneys fees' fund of $450,000. Attorneys' costs, administration costs, and incentive awards will be paid from the class distribution fund. Any reduction of the attorneys' fees will be paid into the class distribution fund. Id. After attorneys' fees, costs, and the incentive award are paid, the remaining class distribution funds will be distributed to the settlement class pro rata. With attorneys' fees of $450,000, litigation costs of $13,011.56, administration costs of approximately $13,500, and an incentive award of $1,500, each class member will receive approximately $469.54. The Plaintiffs are entitled to statutory damages of $100 to $1,000 under the FCRA. The Plaintiffs filed a motion for final approval of the class settlement and a motion for attorneys' fees and costs. The Court denied the motion for attorneys' fees and costs, and deferred consideration of the motion for final approval. The Plaintiffs filed a renewed motion for attorneys' fees and costs. The motions are unopposed. Judge Donato's order resolves the motion for final approval, the motions for attorneys' fees and costs, and the request for an incentive award for Arnold. First, he holds that the relief provided by the settlement is adequate and fair. He finds no issues with the proposed treatment of class members relative to each other, subject to the incentive award modification discussed below. The settlement funds will be distributed on a pro rata basis to the 739 settlement class members who did not opt out of the settlement, and any unclaimed settlement funds will be redistributed pro rata to the settlement class members who cashed their checks. The reaction of the class members also favors final approval. Next, Judge Donato holds that the renewed motion for attorneys' fees and costs provided adequate evidence to support the reasonableness of the claimed attorney billing rates. The fees requested are lower than the lodestar. Consequently, Judge Donato will not deny final approval of the settlement or the fees request because of the lack of proportionality with the class recovery. This too is a case-specific determination that is not necessarily relevant to other cases. Litigation expenses in the amount of $13,011.56 were reasonably explained in the declaration of counsel, Judge Donato finds. The requested reimbursement is granted, and the settlement administrator's requested costs of up to $13,500 are also granted. Finally, Judge Donato awards $1,500 to Arnold. The Plaintiffs initially asked for a $5,000 incentive award for Arnold, which they reduced to $3,000 in the renewed application. It may be that Arnold put some work into the case, but the record does not demonstrate that he is entitled to a payment more than six times larger than the estimated payment to every other class member. Based on the foregoing, Judge Donato grants final approval of the class action settlement. He orders that the single opt-out is excluded from the settlement. Judge Donato awards the class counsel $450,000 in attorneys' fees to be paid from the attorneys' fees fund. The cClass counsel is ordered reimbursed $13,011.56 in litigation expenses to be paid from the class distribution fund. The settlement administrator is awarded additional costs of up to $13,500. The named class representative, Arnold, is awarded a $1,500 incentive payment. The case will remain closed, but the counsel must file the post-distribution accounting document on the ECF docket when the time comes, as required by the Northern District's Procedural Guidance for Class Action Settlements. A full-text copy of the Court's Dec. 30, 2022 Order is available at https://tinyurl.com/563x62sj from Leagle.com. DOLE PACKAGED: Bid to Dismiss Jackson Class Suit Granted in Part ---------------------------------------------------------------- In the case, JAMIE JACKSON, individually and on behalf of all similarly-situated citizens of Illinois and the United States, Plaintiffs v. DOLE PACKAGED FOODS, LLC, Defendant, Case No. 3:22-cv-1448-DWD (S.D. Ill.), Judge David W. Dugan of the U.S. District Court for the Southern District of Illinois: a. grants in part and denies in part Dole's Motion to Dismiss; and b. denies the Motion to Stay Discovery. Jackson brings this putative class action against Dole, alleging that Dole deceptively labeled one of its food products. She claims that the labeling was false and intended to deceive the consumer in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1, et seq. and common law express and implied warranties of merchantability, and resulted in unjust enrichment. Dole manufactures and sells Fruit Bowl products. Although the Plaintiff purchased only a single Dole product, she takes issue with nine of Dole's Fruit bowls: Cherry Mixed Fruit, Diced Apples, Diced Pears, Mandarin Oranges, Mixed Fruit, Pineapple Tidbits, Red Grapefruit Sunrise, Tropical Fruit, and Yellow Cling Diced Peaches. The Products are labeled "in 100% fruit juice." Jackson alleges that the "in 100% fruit juice" label is deceptive, unfair, misleading, and false, because it leads Illinois and United States customers to believe that the juice in the container is in fact 100% fruit juice and contains no other added ingredients. According to her, the claim is not true because, as revealed by the list of ingredients, the Products also contain ascorbic acid and citric acid, which she describes as added ingredients. According to the Plaintiff, the presence of ascorbic acid and citric acid in the Products contravenes Dole's representations that the Products contain fruit "in 100% fruit juice." She alleges that she was damaged because she paid a premium for the product, believing it contained only fruit and fruit juice. Dole contends that the 100% fruit juice label does not indicate to the reasonable consumer that the product will not contain added ascorbic acid or citric acid. Rather, reasonable consumers understand this statement to mean that the medium in which the fruit is packed is "100% fruit juice" as opposed to water, syrup, gelatin, or some other substance -- as is common in alternative products that are typically present on the same grocery store shelves. Dole also argues that he Plaintiff failed to allege any facts plausibly suggesting that the presence of minute amounts of ascorbic acid and citric acid would be material to reasonable consumers. Dole filed a motion to dismiss the complaint. It contends that the Complaint should be dismissed with prejudice under Rule 12(b)(6) because it fails to plausibly allege facts to support an ICFA claim under the "reasonable consumer" standard. It also contends that the Plaintiff's claims relating to products she did not purchase, as well as her request for injunctive relief, must be dismissed for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1). First, Judge Dugan holds that the Plaintiff lacks standing and, consequently, the Court lacks subject matter jurisdiction to consider the Plaintiff's claims as to the following Dole Fruit Bowls(R): Cherry Mixed Fruit, Diced Apples, Diced Pears, Mandarin Oranges, Pineapple Tidbits, Red Grapefruit Sunrise, Tropical Fruit and Yellow Cling Diced Peaches. He finds that Jackson's allegations do not clear the irreducible constitutional minimum of Article III. And, he is unwilling to read into the "case and controversy" requirement of Section 2 of Article III to the United States Constitution a substantially similar exception so as to allow the Plaintiff to maintain claims when she has no "injury in fact" that are traceable to representations made on Fruit Bowls she did not purchase. Next, Judge Dugan holds that even if Jackson intends to purchase the Products again, she does not face an imminent threat of future harm. Merely purchasing one of the Products does not trigger Jackson's injury. Her injury lies in purchasing one of the Products under the influence of a deceptive label. There is no chance she will be misled again because she now knows a quick look at the ingredients label will reveal the Product's true composition. Therefore, the complaint fails to allege a real and immediate threat of future violations of her rights. Jackson's claims are due to be dismissed to the extent they seek injunctive relief. As for the ICFA claim, the parties primary dispute is whether Dole engaged in deceptive or unfair acts or practices. Accordingly, the question is whether the allegedly false and misleading statements can be read to create a likelihood of deception or to have the capacity to deceive a reasonable consumer. Judge Dugan cannot say as a matter of law that a substantial portion of reasonable consumers are not deceived by the claim made by the Defendant in its labeling of the product. The added ingredients are ascorbic acid and citric acid, both of which naturally occur in fruits albeit in allegedly different concentrations. Citric acid is also a commercially manufactured food additive in processed foods as a pH adjuster and flavor agent. Much can be said about whether increasing or changing the concentrations of naturally occurring components of a fruit product renders it something other than 100%, but whether the Plaintiff has pleaded her claim sufficiently does not turn on linguistics or theoretical pontifications of the meaning of the phrase used. Rather, what matters here is how consumers behave -- how they perceive advertising and how they make decisions. The Plaintiff brings claims for common law express and implied warranties. Judge Dugan finds that the Defendant moves to dismiss the Plaintiff's breach of warranty claims with little argument such that its contention is largely undeveloped. The Defendant makes little argument for its proposition that the unjust enrichment claim should be dismissed, except to say that since the Plaintiff's ICFA claims fail, so must her unjust enrichment claim. But since the Plaintiff has plausibly pled her ICFA claims, her unjust enrichment claim also survives the motion to dismiss. For these reasons, and having given consideration to the parties' arguments, Judge Dugan grants in part and denies in part Dole's Motion to Dismiss. He grants Dole's motion with regard to Jackson's Claim for injunctive relief and her claims relative to Dole Fruit Bowls(R): Cherry Mixed Fruit, Diced Apples, Diced Pears, Mandarin Oranges, Pineapple Tidbits, Red Grapefruit Sunrise, Tropical Fruit and Yellow Cling Diced Peaches. He otherwise denies Dole's motion as to her claims relative to the Dole Fruit Bowl - Mixed Fruit. In light of his ruling, Judge Dugan denies the Motion to Stay Discovery. A full-text copy of the Court's Dec. 30, 2022 Memorandum & Order is available at https://tinyurl.com/ft3w5f53 from Leagle.com. EVEREST GLOBAL: Adkins Files Suit in D. New Jersey -------------------------------------------------- A class action lawsuit has been filed against Everest Global Services, Inc. The case is styled as Angela Adkins, on behalf of herself and all others similarly situated v. Everest Global Services, Inc., Case No. 3:23-cv-00004 (D.N.J., Jan. 3, 2023). The nature of suit is stated as Other P.I. for Personal Injury Everest -- https://www.everestre.com/ -- is a leading global reinsurance and insurance organization with extensive product and distribution capabilities, a strong balance sheet and an innovative culture.[BN] The Plaintiff is represented by: Victoria Maniatis, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (866) 252-0878 Fax: (212) 868-1229 Email: vmaniatis@milberg.com FASTAFF LLC: Egan Sues Over Predatory Business Practices -------------------------------------------------------- Theresa Egan, Brian Barker, and Sabrina Budden-Wright, individually and on behalf of all others similarly situated v. FASTAFF, LLC and U.S. NURSING CORPORATION, Case No. 1:22-cv-03364-MEH (D. Colo., Dec. 30, 2022), is brought seeks recovery for the pay losses the Plaintiffs and other travelers experienced as the result of Fastaff's predatory business practices, which Fastaff blame on the facilities it staffs. Travel nurses serve a valuable role in our nation's healthcare system. Hospitals, clinics, and other healthcare facilities rely on skilled travel employees to fill short-term nursing employment gaps on a temporary basis. To fill these roles, healthcare facilities use intermediary staffing agencies to employ the travelers, negotiate pay rates, and schedule assignments. Traveling nurses have played an especially critical role since the start of the COVID-19 pandemic, as many facilities experienced severe staffing shortages that required temporary assistance to continue providing quality healthcare. But a troubling practice has emerged. Fastaff is offering contracts to travel nurses with a fixed-term assignment at an agreed-upon pay rate. After the nurse accepts the position and starts the assignment, Fastaff makes a "take-it-or-leave-it" demand to accept less pay or be terminated. Of course, most nurses have no choice but to continue working the assignment at the lower rate because they have no reasonable alternatives for comparable employment: they have already incurred travel expenses, secured short-term housing, and uprooted their lives to accept the assignment. Fastaff is knowingly engaging in these "bait-and-switch" practices to maintain the significant profit margins it had become accustomed to during the COVID-19 pandemic. Additionally, Fastaff is underpaying its travel employees for overtime hours worked. By law, employers must pay their employees one-and-a-half times their "regular rate" for all hours worked over forty in a workweek. But in determining this "regular rate," Fastaff has only included its employees' direct hourly cash wage among other items and has excluded, in violation of the law, other parts of its employees' compensation packages, thereby resulting in an artificially low rate of pay for overtime hours worked, says the complaint. The Plaintiffs were jointly employed by Fastaff and U.S. Nursing as travel nurses. Fastaff, LLC is a Colorado limited liability company.[BN] The Plaintiffs are represented by: George A. Hanson J. Austin Moore Alexander T. Ricke Crystal Cook Leftridge STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Phone: 816-714-7100 Email: hanson@stuevesiegel.com moore@stuevesiegel.com ricke@stuevesiegel.com cook@stuevesiegel.com FLEETCOR TECH: Class Cert Bid Filing Extended in Lyle Class Suit ---------------------------------------------------------------- In the class action lawsuit captioned as Lyle v. Fleetcor Technologies, Inc., Case No. 1:22-cv-04831 (N.D. Ga.), the Hon. Judge Michael L Brown entered an order granting the Plaintiff's motion for extension of time to file motion for class certification. The Court directs the parties to propose an agreed upon deadline in their forthcoming Joint Preliminary Report and Discovery Plan. The suit alleges violation of the Telephone Consumer Protection Act. FleetCor is an American company that provides fuel cards and workforce payment products and services.[CC] FRANKLIN WIRELESS: Ali Wins Class Certification Bid --------------------------------------------------- In the class action lawsuit captioned as MOHAMMED USMAN ALI, individually and on behalf of all others similarly situated, v. FRANKLIN WIRELESS CORP., OC KIM, and DAVID BROWN, Case No. 3:21-cv-00687-AJB-MSB (S.D. Cal.), the Hon. Judge Anthony J. Battaglia entered an order: 1. granting motion for class certification: "All persons and entities other than defendants who purchased or otherwise acquired Franklin Wireless Corporation ("Franklin" or the "Company") common stock between September 17, 2020 and April 8, 2021 (the "Class Period"), inclusive;" Excluded from the Class are any parties who are or have been Defendants in this litigation, the present and former officers and directors of Franklin and any subsidiary thereof, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which any current or former Defendant has or had a controlling interest; and 2. appointing Gergely Csaba as class representative, and Pomerantz LLP as class counsel. On April 16, 2021, Mohammed Usman Ali filed a class action complaint against the Defendants for violations of the Securities Exchange Act of 1934. On September 15, 2021, the Court appointed Gergely Csaba as Lead Plaintiff and Pomerantz LLP as Lead Counsel pursuant to section 21D(a)(3)(B) of the Exchange Act. The operative pleading in this case is the Amended Complaint ("FAC"). The FAC details that Franklin is a provider of wireless solutions, including mobile hotspots, routers and modems, and markets and sells its products directly to wireless operators, as well as indirectly through partners and distributors. According to the FAC, Defendants violated Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder by misleading the market to believe that the Company had no knowledge that its mobile hotspot devices were manufactured with defective lithium-ion batteries. The FAC alleges that during the class period, Franklin knew, but did not disclose that the hotspot devices were manufactured with defective lithium-ion batteries that posed a serious safety hazard because the batteries could overheat and cause severe 13 burns and, in some cases, catch fire. According to Lead Plaintiff, "a total of 2,172,392 million shares of Franklin Wireless Common Stock was traded by investors" on the NASDAQ during the class period. Because Franklin has millions of shares trading on a national exchange, Lead Plaintiff argues, the Court may infer that numerosity is met. Lead Plaintiff further 16 there are thousands of geographically dispersed members of the proposed class, whose identities can be readily ascertained from securities brokerage and nominee firms' books and records. The Defendants contend that numerosity is not met because "Franklin knows of fewer than 1000 beneficial shareholders in the public market" and that such number "is a far cry" from the thousands of class members Lead Plaintiff believes exist. A copy of the Court's order dated Jan. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3jT9fEF at no extra charge.[CC] HARBOR FITNESS CENTER: Rodriguez Files ADA Suit in E.D. New York ---------------------------------------------------------------- A class action lawsuit has been filed against Harbor Fitness Center, Inc. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. Harbor Fitness Center, Inc., Case No. 1:23-cv-00008 (E.D.N.Y., Jan. 2, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Harbor Fitness -- http://www.harborfitness.com/-- is Brooklyn's premiere, privately owned and operated heath club chain boasting seven locations across the borough.[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 HONDA MOTOR: Class Certification Bid Filing Due May 25 ------------------------------------------------------ In the class action lawsuit captioned as Spencer v. Honda Motor Corp., Ltd. et al., Case No. 2:21-cv-00988 (E.D. Cal.), the Hon. Judge Troy L. Nunley entered an order setting the deadline for May 25, 2023, for Plaintiff to file their Motion for Class Certification. The Court will file a Supplemental Scheduling Order after it issues a ruling on Plaintiff's motion. The nature of suit states contract product liability. Honda Motor is a Japanese public multinational conglomerate manufacturer of automobiles, motorcycles, and power equipment.[CC] HOTEL COLLECTION: Petrova Sues Over Unlawful Advertising of Prices ------------------------------------------------------------------ Adelina Petrova, individually and on behalf of all others similarly situated v. HOTEL COLLECTION LLC, a Florida limited liability company; and DOES 1 to 10, inclusive, Case No. 2:22-cv-09231-SB-JPR (C.D. Cal., Dec. 20, 2022), is brought for its unlawful, unfair, and fraudulent business practice of advertising fictitious prices and corresponding phantom discounts on its scent diffusers and many other items sold through its website (https://www.hotelcollection.com/), in violation of California's Unfair Competition Law (the "UCL"); California's False Advertising Law (the "FAL"); the California Consumer Legal Remedies Act (the "CLRA"); and the Federal Trade Commission Act ("FTCA"). This practice of false reference pricing occurs when a retailer fabricates a fake regular, original, and/or former reference price, and then offers an item for sale at a deeply "discounted" price. The result is a sham price disparity that misleads consumers into believing they are receiving a good deal and induces them into making a purchase. Companies like Hotel Collection drastically benefit from employing a false reference pricing scheme and experience increased sales. The California legislature prohibits this misleading practice. The law recognizes the reality that consumers often purchase merchandise marketed as being "on sale" purely because the proffered discount seemed too good to pass up. Accordingly, retailers, including Hotel Collection, have an incentive to lie to customers and advertise false sales. The resulting harm is tangible—the bargain hunter's expectations about the product he or she purchased is that it has a higher perceived value and she may not have purchased the product but for the false savings. The advertised discounts are fictitious because the reference price does not represent a bona fide price at which Hotel Collection previously sold a substantial quantity of the merchandise for a reasonable period of time (or at all) as required by the Federal Trade Commission ("FTC"). In addition, the represented reference price was not the prevailing market retail price within the three months immediately preceding the publication of the advertised former reference price, as required by California law. The deception is magnified for these products, because the representation of the false reference price leads consumers like Plaintiff to believe they are purchasing a product of substantially higher quality and that they are purchasing a product that was previously offered for sale at the significantly higher reference price. Through its false and misleading marketing, advertising, and pricing scheme, Hotel Collection violated and continues to violate California law, which prohibits advertising goods for sale as discounted from former prices that are false, and misleading statements about the existence and amount of price reductions. The Plaintiff brings this action on behalf of herself and other similarly situated consumers who have purchased one or more scent diffusers, and other items, from Hotel Collection's online store that were deceptively represented as discounted from false former reference prices in order to halt the dissemination of this false, misleading, and deceptive pricing scheme, to correct the false and misleading perception it has created in the minds of consumers, and obtain redress for those who have purchased merchandise tainted by this deceptive pricing scheme, says the complaint. The Plaintiff, in reliance on Hotel Collection's false and deceptive pricing, purchased a "Hotel Collection Studio Scent Diffuser" (the "Product") on November 22, 2022 from Hotel Collection's website (https://www.hotelcollection.com/) for $119.97. Hotel Collection, through its website, offers a number of scent diffusers, scent collections, candles, wines, room sprays, and many other items, to California consumers.[BN] The Plaintiff is represented by: Kevin J. Cole, Esq. KJC LAW GROUP, A.P.C. 9701 Wilshire Blvd., Suite 1000 Beverly Hills, CA 90212 Phone: (310) 861-7797 Email: kevin@kjclawgroup.com - and - Robert Tauler, Esq. TAULER SMITH, LLP 626 Wilshire Blvd., Suite 510 Los Angeles, CA 90017 Phone: (310) 590-3927 Email: rtauler@taulersmith.com HOUSEKEEPING SERVICES: Lima Sues Over Unpaid Overtime Wages ----------------------------------------------------------- Josefa D. Cordova Lima, on behalf of herself and all others similarly situated v. HOUSEKEEPING SERVICES OF HILTON HEAD, LLC., DMS LLC, D/B/A DELKO ENTERPRISE INC., DAVID L. MYERS, and CARLOS DANTE ACOSTA Individually, Case No. 9:22-cv-04490-BHH (D.S.C., Dec. 12, 2022), is brought for overtime violations under the Fair Labor Standards Act and unpaid wages, treble damages, and other relief under the South Carolina Payment of Wages Act. During the summer, the Plaintiff and similarly situated Undocumented Laundry Workers regularly worked 7 seven days a week between 75 to 85 hours a work. In fact, on a few occasions the Plaintiff worked 24 hours straight. Sometimes the Plaintiff worked so many hours that she slept in her car between shifts. The Plaintiff and similarly situated Undocumented Laundry Workers had no choice but work these hours. They were not allowed to take a day off or leave early. Myers and HSHH told them they would be fired if they did not work the hours they were instructed to work. The Defendants did not pay the Plaintiff and the other undocumented laundry workers time and half of their regular hourly wage when they worked in excess of 40 hours during a work week, says the complaint. The Plaintiff was jointly employed by the Defendants from April of 2019 until March 30, 2022. HSHH is an industrial laundering business that along with the other Defendants.[BN] The Plaintiff is represented by: Marybeth Mullaney, Esq. MULLANEY LAW 652 Rutledge Ave Ste A Charleston, SC 29403 Phone (843) 588-5587 Email: marybeth@mullaneylaw.net INTERSTATE MANAGEMENT: Class Cert Bid Filing Due Jan. 27, 2025 -------------------------------------------------------------- In the class action lawsuit captioned as DARCEL CELESTE NAVARRETTE, et al., v. INTERSTATE MANAGEMENT COMPANY, LLC, et al., Case No. 1:22-cv-01402-JLT-SAB (E.D. Cal.), the Hon. Judge Stanley A. Boone entered a scheduling order as follows: -- Class Certification Motion Filing Jan. 27, 2025 Deadline: -- Non-Expert Discovery: Aug. 31, 2024 -- The parties shall exchange the Feb. 1, 2023 initial disclosures required by Fed. R. Civ. P. 26(a)(1) on or: before: -- Any motions or stipulations March 9, 2023 requesting leave to amend the pleadings must be filed by no later than: -- The parties are ordered to Aug. 31, 2024 complete all non-expert discovery on or before: A copy of the Court's order dated Jan. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3GIoCZW at no extra charge.[CC] IU CREDIT UNION: Ind. App. Reverses Arbitration Order in Land Suit ------------------------------------------------------------------ In the case, Tonia Land, individually and on behalf of all others similarly situated, Appellant-Plaintiff v. IU Credit Union, Appellee-Defendant, Court of Appeals Case No. 22A-CP-382 (Ind. App.), the Court of Appeals of Indiana reverses the trial court's order granting IUCU's motion to compel arbitration. Land sued IUCU on behalf of a putative class, claiming IUCU had wrongfully assessed overdraft fees against her and other customers. Land has several accounts with IUCU, including a checking account with a debit card. When she became an IUCU customer, she received a "Membership & Account Agreement." Among other provisions, the Agreement discusses IUCU's methods for processing Land's expenditures from her account, as well as overdraft policies. Land later registered for online banking. IUCU sent to Land via electronic means an "Online Banking, Mobile Banking and Text (SMS) Message Banking Agreement and Disclosure." According to the Disclosure, Land agreed that IUCU could send notices to her electronically. Further, the Disclosure stated, IUCU may modify the terms and conditions applicable to the Services from time to time. We may send any notice to you via email, and you will be deemed to have received it three days after it is sent. Finally, the Disclosure provided that Land would accept the terms and conditions by clicking an "Accept" button. In 2019, IUCU sought to require its members to arbitrate any claims they may have against IUCU and to waive their right to participate in class actions against IUCU. It prepared a one-page document entitled "ADDENDUM TO THE MEMBERSHIP & ACCOUNT AGREEMENT." In summary, the Addendum provides: (1) either party may require any dispute to be resolved by arbitration without the other party's consent; and (2) Land and other customers cannot initiate or join a class action in any arbitration or court proceeding between the parties. IUCU attempted to mail the Addendum to each member, enclosed at the end of their July 2019 account statements. As for IUCU members who had enrolled in electronic banking services, IUCU attempted to email them to inform them about the Addendum. With respect to Land in particular, IUCU mailed the Addendum to the address she had given the credit union, along with an account statement, but: (1) the Addendum was included in an account statement for an account other than Land's checking account; and (2) Land does not recall receiving the new terms. Land did not send IUCU a notice that she chose to opt out of the Addendum's arbitration requirement. On March 18, 2021, Land filed a Class Action Complaint, alleging IUCU had wrongfully assessed overdraft fees on accounts that were not overdrawn. In particular, she claimed that on October 3, 2018, IUCU wrongfully assessed a $30 overdraft fee against her on a $4.31 debit card transaction, even though IUCU had previously authorized the transaction on sufficient funds. Land further claimed that IUCU's actions amounted to breach of contract, breach of a duty of good faith and fair dealing, unjust enrichment, and violation of Indiana's Deceptive Consumer Sales Act. On June 15, 2021, IUCU filed a Motion to Compel Arbitration, claiming the Addendum required that Land's claims be submitted to arbitration. Land responded to the motion, and IUCU filed a reply in support of its motion. The trial court held a hearing on the motion and later granted it, concluding an enforceable agreement to arbitrate exists between the parties. Next, Land requested and received permission from the trial court and this Court to pursue an interlocutory appeal, and this appeal followed. Land argues the trial court erred in determining her claim against IUCU was subject to mandatory arbitration, claiming the alleged contract was invalid due to lack of reasonable notice and, in addition, she never accepted the offer. In response, IUCU argues the parties validly contracted to submit all claims to arbitration. The parties agree that this appeal raises questions of law, which the Court of Appeals reviews de novo. Regarding Land's first argument, the Court of Appeals concludes IUCU failed to provide reasonable notice to Land of the arbitration contract, and as a result there was no meeting of the minds. It says fulfilling contractual notice obligations, that IUCU alone drafted, is not the same as establishing reasonable notice under the law. Although that conclusion is a sufficient basis to reverse the trial court's judgment, the Court of Appeals also examines Land's claim that she did not validly accept IUCU's contract offer. It concludes Land's silence did not constitute acceptance, and lack of acceptance is another ground for invalidating the Addendum's arbitration requirement. IUCU did not state that her use of IUCU's banking services would constitute acceptance of the Addendum. To the contrary, IUCU, the drafter of the Addendum, stated only that Land's silence would constitute acceptance. The Court of Appeals will not read terms into the Addendum's plain language. For the reasons stated, the Court of Appeals reverses the trial court's grant of IUCU's motion to compel arbitration and remands for further proceedings not inconsistent with its Opinion. A full-text copy of the Court's Dec. 30, 2022 Opinion is available at https://tinyurl.com/2apsjvbr from Leagle.com. Lynn A. Toops -- LTOOPS@COHENANDMALAD.COM -- Vess A. Miller -- VMILLER@COHENANDMALAD.COM -- Lisa M. LaFornara -- LLAFORNARA@COHENANDMALAD.COM -- Tyler B. Ewigleben, Cohen & Malad, LLP, Indianapolis, Indiana, John Steinkamp, John Steinkamp & Associates, P.C., Indianapolis, Indiana, Attorneys for the Appellant. James R. Branit -- Branit@LitchfieldCavo.com -- Phillip G. Litchfield -- LitchfieldP@LitchfieldCavo.com -- Litchfield Cavo LLP, Chicago, Illinois, Attorneys for the Appellee. JACK SKEEN: Seeks More Time to File Class Cert Reply ---------------------------------------------------- In the class action lawsuit captioned as CHRISTINE REULE, et. al., v. THE HONORABLE JUDGE JACK SKEEN, et. al., Case No. 6:22-cv-00367-JDK (E.D. Tex.), the Defendants ask the Court to enter an order granting an extension of time to file a reply in support of their Joint Opposed Motion for Extension of Time to Respond to Plaintiffs' Opposed Motion to Certify a Defendant Class of Texas Local Administrative Judges and a Defendant Class of Texas Court Clerks. -- The Defendants request an extension to, and including, January 17, 2023. The Plaintiffs filed a First Complaint on September 19, 2022. The Defendants, Megan LaVoie, and Honorable Judge Jack Skeen filed a Motion to Dismiss Plaintiffs' Original Complaint on October 18, 2022 raising sovereign immunity, judicial immunity, and the Younger and Rooker-Feldman abstention doctrines. The Defendants Judge Skeen and Director LaVoie subsequently filed a Motion to Stay Pre-Trial Proceedings and Protective Order on November 9, 2022. The Defendants sought a stay and protective order because immunity includes immunity from suit. Pre-trial proceedings and discovery should be stayed until the issues of sovereign immunity, judicial immunity, and abstention are resolved. Id. Defendants seek an extension to respond to Plaintiff's Motion to Certify for those same reasons. The Plaintiffs filed a response to Defendants' Motion for Extension on December 28, 2022. Counsel for Defendant LaVoie and Judge Skeen is currently out of the office and requests an extension to file a reply in support of the Motion for Extension. Plaintiffs are unopposed to the extension. The extension is not sought for delay. A copy of the Defendants' motion dated Jan. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3GHYA8U at no extra charge.[CC] The Attorneys for the Defendants Director Lavoie and Judge Skeen, are: Ken Paxton, Esq. Brent Webster, Esq. Grant Dorfman, Esq. Shawn Cowles, Esq. Christopher D. Hilton, Esq. Caroline A. Merideth, Esq. GENERAL LITIGATION DIVISION P.O. Box 12548, Capitol Station, MC-019 Austin, TX 78711-2548 Telephone: (512) 463-2120 Facsimile: (512) 320-0667 E-mail: caroline.merideth@oag.texas.gov The counsel for the Defendant, Smith County District Clerk Penny Clarkston, are: David Iglesias, Esq. James A. Evans III, Esq. Stephanie Ernst, Esq. IGLESIAS LAW FIRM, PLLC 605 Chase Drive, Suite 8 Tyler, TX 75701 Telephone: (903) 944-7185 Facsimile: (903) 630-5338 E-mail: david@iglesiaslawfirm.com jim@iglesiaslawfirm.com stephanie@iglesiaslawfirm.com KIA AMERICA: Baker Files TCPA Suit in W.D. Michigan --------------------------------------------------- A class action lawsuit has been filed against Kia America, Inc., et al. The case is styled as Brenda Baker, on behalf of herself and all others similarly situated v. Kia America, Inc., Hyundai Motor America, Case No. 1:22-cv-01239-JMB-PJG (W.D. Mich., Dec. 29, 2022). The nature of suit is stated as Motor Vehicle Prod. Liability for Magnuson-Moss Warranty Act. Kia America, Inc. -- http://www.kiamedia.com/-- provides a wide range of cars that meet your lifestyle.[BN] The Plaintiff is represented by: Carl Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 111 W Jackson Blvd., Ste. 1700 Chicago, IL 60605 Phone: (312) 984-0000 Fax: (212) 686-0114 Email: malmstrom@whafh.com KIA AMERICA: Winston Suit Removed to C.D. California ---------------------------------------------------- The case styled as Marchae Winston, individually and on behalf of all others similarly situated v. Kia America, Inc., Case No. 30-02022-01289406-CU-BT-CXC was removed from the Orange County Superior Court, to the U.S. District Court for the Central District of California on Dec. 29, 2022. The District Court Clerk assigned Case No. 8:22-cv-02329-FWS-KES to the proceeding. The nature suit is stated as Other Fraud for Fraud. Kia America, Inc. -- http://www.kiamedia.com/-- provides a wide range of cars that meet your lifestyle.[BN] The Plaintiff is represented by: Seyed Abbas Kazerounian, Esq. Gil Melili, Esq. Pamela Erin Prescott, Esq. KAZEROUNI LAW GROUP APC 245 Fischer Avenue Suite D1 Costa Mesa, CA 92626 Phone: (800) 400-6808 Fax: (800) 520-5523 Email: ak@kazlg.com gil@kazlg.com - and - Jason A Ibey, Esq. KAZEROUNI LAW GROUP APC 321 N Mall Drive Suite R108 St. George, UT 84790 Phone: (800) 400-6808 Fax: (800) 520-5523 Email: jason@kazlg.com pamela@kazlg.com - and - Seyed Masih Kazerouni, Esq. PRO INJURY ATTORNEYS, APC 245 Fischer Avenue Suite D1 Costa Mesa, CA 92626 Phone: (949) 751-9322 Email: mk@proinjuryattorneys.com - and - Sina Rezvanpour, Esq. SINA REZ LAW PC 401 Wilshire Boulevard Floor 12 Santa Monica, CA 90401 Phone: (818) 784-0100 Fax: (818) 574-4049 Email: sina.rez@sinarezlaw.com The Defendant is represented by: Kate Spelman, Esq. Alice S. Kim, Esq. JENNER AND BLOCK LLP 515 South Flower Street Suite 3300 Los Angeles, CA 90071-2246 Phone: (213) 239-5100 Fax: (213) 239-5199 Email: KSpelman@jenner.com akim@jenner.com KRAFT HEINZ: Case Management, Sched Order Entered in Adams ---------------------------------------------------------- In the class action lawsuit captioned as SANDRA ADAMS, v. THE KRAFT HEINZ COMPANY, Case No. 5:22-cv-00290-GAP-PRL (M.D. Fla.), the Hon. Judge Gregory A. Presnell entered a case management and scheduling order as follows: -- Class Discovery Deadline July 3, 2023 -- Plaintiff's Motion for Class August 16, 2023 Certification -- Defendant's Response October 16, 2023 -- Plaintiff's Rebuttal November 14, 2023 The Court will issue a subsequent Case Management and Scheduling Order once the class certification issue is resolved. Kraft Heinz is an American multinational food company formed by the merger of Kraft Foods and Heinz co-headquartered in Chicago and Pittsburgh. A copy of the Court's order dated Jan. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3jTHr3j at no extra charge.[CC] KRAFT HEINZ: Forbes Sues Over Mislabeled Apple Juice Products ------------------------------------------------------------- Eboni Forbes, individually and on behalf of all others similarly situated, Plaintiff v. Kraft Heinz Foods Company, Defendant, Case No. 1:23-cv-00007 (S.D.N.Y., Jan. 2, 2023) is a class action against the Defendant for fraud; unjust enrichment; breaches of express warranty, implied warranty of merchantability/fitness for a particular purpose and Magnuson Moss Warranty; and for violations of the New York General Business Law and the State Consumer Fraud Acts. Kraft Heinz Foods Company manufactures, markets, and sells apple juice with "All Natural Ingredients" and "No Artificial Colors, Flavors or Preservatives" under the Capri-Sun brand. According to the complaint, the Plaintiff and others similarly situated consumers are misled because the label states, "No Artificial Colors, Flavors or Preservatives," even though the product contains citric acid, an artificial ingredient which fulfills numerous preservative functions. Instead of identifying citric acid's function as a preservative or any of the other examples provided, Defendant's parenthetical declaration that it is used "FOR TARTNESS" is misleading and contrary to law, says the suit. As a result of the false and misleading representations, the product is sold at a premium price, $4.99 for ten six ounce pouches, excluding tax and sales, the suit alleges.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck, NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com LASTPASS US: Sued Over Failure to Safeguard Sensitive Data ---------------------------------------------------------- John Doe, individually and on behalf of all others similarly situated v. LASTPASS US LP Case No. 1:23-cv-10004-PBS (D. Mass., Jan. 3, 2023), is brought for damages against Defendant for its failure to exercise reasonable care in securing and safeguarding highly sensitive consumer data in connection with a massive, months-long data breach that began in August 2022 (the "Data Breach") and impacted the highly sensitive data of potentially millions of LastPass users, including Plaintiff and putative Class members, resulting in the unauthorized public release and subsequent misuse of their names, end-user names, billing addresses, email addresses, telephone numbers, IP addresses from which customers were accessing the LastPass service, and customer vault data where certain unencrypted data was stored, including website usernames and passwords, secure notes, and form-filled data (collectively, the "Private Information"). To the world of cybercriminals, LastPass users' Private Information, including the vault data that was in LastPass's possession at the time of the Data Breach, is extremely valuable. By accessing Plaintiff's and Class members' Private Information, hackers can simply unlock the stolen vaults using the victims' respective master passwords, which were likely stored by LastPass and ultimately accessed by the bad actors and wreak financial havoc on the lives of LastPass users like Plaintiff. The security of LastPass customers' Private Information is, therefore, of the utmost importance. LastPass understood and appreciated the value of this Information yet chose to ignore it by failing to invest in adequate data security measures that would protect Plaintiff and the Class from the unauthorized access to, and copying of, their Private Information. With their Private Information now in the hands of cybercriminals looking to profit from the theft, Plaintiff's and Class members' Private Information is no longer secure and has already been fraudulently misused, causing Plaintiff and members of the Class to suffer (and continue to suffer) economic and non-economic harms, as well as a substantial and imminent risk of future economic and non-economic harms. LastPass understands the serious nature of data breaches and the potential theft and misuse of customers' highly sensitive information resulting therefrom, and purports to address these issues. However, even with this knowledge, LastPass's lax data security measures led to the Data Breach and, as a result, Plaintiff and Class members are no longer in possession of a secure customer vault. Their Private Information is no longer hidden but is, instead, in the hands of cybercriminals who have already fraudulently misused such data. While the exact reason(s) for the Data Breach remain unclear, there is no doubt that Defendant failed to adequately protect Plaintiff's and Class members' Private Information and incorporate the tools necessary to keep such Private Information safe; such negligent failures resulted in the injuries. Had Plaintiff and the Class known that the Private Information they entrusted to Defendant in exchange for the services offered would not be adequately protected, they would not have entrusted their valuable Private Information to Defendant in order to use its product. Thus, on behalf of the Class of victims also impacted by the Data Breach, Plaintiff seeks, under state common law and consumer protection statutes, to redress Defendant's misconduct, says the complaint. The Plaintiff Doe signed up to use LastPass in or around early May of 2016. LastPass is a global password and identity management solutions company.[BN] The Plaintiff is represented by: David Pastor, Esq. PASTOR LAW OFFICE, PC 63 Atlantic Avenue, 3rd Floor Boston, MA 02110 Phone: 617-742-9700 Fax: 617-742-9701 Email: dpastor@pastorlawoffice.com - and - Nicholas A. Migliaccio, Esq. Jason S. Rathod, Esq. Tyler J. Bean, Esq. MIGLIACCIO & RATHOD, LLP 412 H Street, NE, Suite 302 Washington, DC 20002 Phone: 202-470-520 Fax: 202-800-2730 Email: nmigliaccio@classlawdc.com jrathod@classlawdc.com tbean@classlawdc.com MANTA SLEEP: Faces Fontanez Suit Over Blind-Inaccessible Website ---------------------------------------------------------------- RAMON FONTANEZ, individually, and on behalf of all others similarly situated, Plaintiff v. MANTA SLEEP, LLC, Defendant, Case No. 150038/2023 (N.Y. Sup., New York Cty., Jan. 2, 2023) is a class-action lawsuit challenging Defendant's discriminatory business practices as its Website, mantasleep.com, allegedly contained access barriers that prevented Plaintiff and other visually impaired and/or legally blind individuals from purchasing products thereon, in violation of the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law. The Plaintiff and the Class seek, inter alia, a preliminary and permanent injunction, other declaratory relief, statutory damages, actual and punitive damages, pre-judgment and post-judgment interest, and reasonable attorneys' fees and expense. The Defendant is an online retail company, who owns and/or operates mantasleep.com. Through the Website, Defendant sells its products, such as sleep masks and related sleep aid products.[BN] The Plaintiff is represented by: William J. Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, 39th Floor New York, NY 10007 Telephone: (212) 595-6200 Facsimile: (212) 595-9700 E-mail: wdownes@mizrahikroub.com MARIA PAPPAS: Bell Files FDCPA Suit in N.D. Illinois ---------------------------------------------------- A class action lawsuit has been filed against Maria Pappas. The case is styled as Michael Bell, Michelle Kidd, Southwest Organizing Project, Palenque Lsna, individually and on behalf of themselves and all others similarly situated v. Maria Pappas, in her capacity as Treasurer of Cook County, Illinois, and Trustee of the Indemnity Fund, Cook County, Illinois, Case No. 1:22-cv-07061 (N.D. Ill., Dec. 15, 2022). The nature of suit Accommodations Civil Rights for the Civil Rights Act. Maria Pappas -- https://www.mariapappas.net/ -- is an American attorney, Greek American, and politician who has served as the Cook County Treasurer since 1998.[BN] The Plaintiffs are represented by: Brian D. Roche, Esq. William Seth Weltman, Esq. REED SMITH LLP 10 South Wacker Drive, 40th Floor Chicago, IL 60606 Phone: (312) 207-1000 Email: broche@reedsmith.com wweltman@reedsmith.com - and - Charles Robert Watkins, Esq. GUIN, STOKES & EVANS, LLC 805 Lake Street, #226 Oak Park, IL 60301 Phone: (312) 878-8391 Fax: (205) 226-2357 Email: charlesw@gseattorneys.com - and - Daniel Joshua Schneider, Esq. John Mark Bouman, Esq. Lawrence Davis Wood, Esq. LEGAL ACTION CHICAGO 120 S. LaSalle St., Suite 900 Chicago, IL 60603 Phone: (312) 423-5941 Email: dschneider@legalactionchicago.org jbouman@legalactionchicago.org lwood@legalactionchicago.org MDL 2949: Parise Suit Consolidated in Hip Implant Product Row ------------------------------------------------------------- Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the case captioned Parise v. Wright Medical Technology, Inc., et al., C.A. No. 3:22-00324 (June 9, 2022, W.D. Wis.) to U.S. District Court for the the Eastern District of Arkansas and, with the consent of that court, assigned it to Judge Kristine G. Baker for coordinated or consolidated pretrial proceedings in IN RE: PROFEMUR HIP IMPLANT PRODUCTS LIABILITY LITIGATION, MDL No. 2949. Parise moved to vacate the panel's order conditionally transferring her action to MDL No. 2949 while defendants Microport Orthopedics, Inc. and Wright Medical Technology, Inc., opposed the motion. This action alleges that the design, marketing and performance of the "Profemur" line of modular hip implants, including both titanium femoral necks and those made of cobalt chromium, are prone to micro-movements that lead to fluid ingress into the bore, which leads to fretting and corrosion in the stem-neck junction, which in turn leads to metallosis and increased blood metal levels and, at times, fracture of the devices. The panel contends that Parise's action falls within the MDL's ambit because it involves injuries arising from the corrosion at the stem-neck junction of an allegedly defective Profemur hip implant. The plaintiff's primary argument against transfer was that defendants do not intend to settle her claims because they arise from an index surgery over ten years ago. The panel said that there is undisputed factual overlap between Parise and the MDL actions and do not typically condition transfer upon a plaintiff's predicted participation in a settlement. A full-text copy of the Court's December 13, 2022 Transfer Order is available at bit.ly/3ZfTS9R MDL 2973: Morrison Suit Consolidated in Elmiron Liability Row ------------------------------------------------------------- Judge Karen K. Caldwel, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the case captioned Morrison, et al. V. Teva Branded Pharmaceutical Products R&D, Inc., et al. (C.A. NO. 3:22−01074) from the U.S. District Court for the Southern District of California to the U.S. District Court for the District of New Jersey, with the consent of that court, assigned to Judge Brian R. Martinotti for coordinated or consolidated pretrial proceedings in IN RE: ELMIRON (PENTOSAN POLYSULFATE SODIUM) PRODUCTS LIABILITY LITIGATION, MDL No. 2973. Morrison moved to vacate the panel's order conditionally transferring the action to MDL No. 2973 while defendants opposed the motion. Plaintiff argued principally that federal jurisdiction is lacking over their case, however, such jurisdictional objections generally do not present an impediment to transfer and can be presented to the transferee judge. This action involves allegations concerning the propensity of the drug "Elmiron," which is used to treat interstitial cystitis, a chronic bladder condition where individuals experience a range of symptoms from discomfort to debilitating pain, to cause retinal injuries, notably atypical or pigmentary maculopathy. The panel concludes that Morrison falls within the MDL's ambit because it involves injuries arising from retinal injuries arising from the use of Elmiron, as well as allegations that defendants failed to warn of the risk of such injuries. Plaintiffs have argued that their putative class claims under California law are sufficiently unique to warrant exclusion from the MDL, yet the panel held that several putative classes are alleged in the over 1,700 Elmiron cases filed to date, and efficiencies can be achieved by adding the putative California class to their number. The transfer will help streamline such discovery and the transferee judge can structure pretrial proceedings to accommodate any unique challenges that the Morrison action presents, rules the panel. A full-text copy of the Court's December 13, 2022 Transfer Order is available at bit.ly/3ZdoNTX MDL 3014: 2 Suits Consolidated in Ventilator Product Liability Row ------------------------------------------------------------------ In the multi-district litigation captioned "In Re: Philips Recalled CPAP, Bi-Level PAP and Mechanical Ventilator Products Liability Litigation," MDL No. 3014, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transferred one case each from the U.S. District Court for the Northern District of Illinois and the District of Massachusetts to the U.S. District Court for the Western District of Pennsylvania and, with the consent of that court, assigned to the Honorable Joy Flowers Conti for coordinated or consolidated pretrial proceedings. Plaintiffs moved to vacate the transfer order while defendants opposed this motion. The actions here asserts overlapping claims for violations of state consumer protection statutes, breach of warranties and unjust enrichment arising from recalled ventilators and the potential harm that can be caused by their alleged inherent defect. Plaintiffs argued that federal subject matter jurisdiction over said case is lacking and the transferor court should decide their pending remand motion before any transfer. But the panel held that this is not an impediment to transfer. The panel found that the two actions involve common questions of fact with the actions transferred to MDL No. 3014, and that the transfer will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. A full-text copy of the court's December 13, 2022 order is available at bit.ly/3VN9XAE MDL 3050: 8 Suits Consolidated in Chantix Product Liability Row ---------------------------------------------------------------- In litigations involving carcinogenic effects of smoking cessation medications, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation transfers two cases from the U.S. District Court for the Southern District of New York and one case each from the Northern District of California, Southern District of Florida, Southern District of Illinois, District of New Jersey, Eastern District of Pennsylvania and Western District of Pennsylvania all to the U.S. District Court for the Northern District of Georgia and, with the consent of that court, assigned to Judge Katherine Polk Failla for coordinated or consolidated pretrial proceedings in IN RE: CHANTIX (VARENICLINE) MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION (No. II), MDL No. 3050. These putative class actions present common factual questions arising from allegations that Pfizer voluntarily recalled the smoking cessation drug "Chantix" in 2021 after discovering that the product contained a nitrosamine impurity known as N-nitroso-varenicline, a probable human carcinogen. Plaintiffs in all actions allege that they purchased or ingested Chantix containing the impurities and, as a result, suffered economic losses and require medical monitoring. The common factual questions include: (1) the duration and levels of the alleged contamination (2) whether the nitrosamine levels posed a safety risk to consumers or made the products unfit for sale (3) whether Pfizer knew or should have known that the products contained nitrosamines (4) whether Pfizer was negligent in labeling, marketing, advertising, manufacturing and selling the affected products and (5) the events pertaining to the Pfizer recalls of Chantix and (6) the appropriate measure of any damages. The panel held that centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings, including with respect to class certification, and conserve the resources of the parties, their counsel and the judiciary. The panel concluded that the Southern District of New York is the appropriate transferee district for this litigation. Defendant Pfizer has its headquarters in this district, and represents that common evidence and witnesses are located there. Three actions are pending in or near this district. A full-text copy of the Court's December 22, 2022 order is available at https://bit.ly/3Im8dLG MDL 3051: 6 Suits Consolidated in ARC Airbag Product Liability Row ------------------------------------------------------------------ In litigations involving defective airbag inflators, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation transfers two cases from the U.S. District Court for the Northern District of Alabama and one case each from the Northern District of California, Northern District of Georgia, District of South Carolina and the Western District of Tennessee all to the U.S. District Court for the Northern District of Georgia and, with the consent of that court, assigned to Judge Eleanor L. Ross for coordinated or consolidated pretrial proceedings in IN RE: ARC AIRBAG INFLATORS PRODUCTS LIABILITY LITIGATION, MDL No. 3051. Plaintiffs in MANN, ET AL. v. ARC AUTOMOTIVE, INC., ET AL., C.A. No. 1:22−03285, moved to centralize this litigation in the Northern District of Georgia or, alternatively, the District of South Carolina. This litigation consists of six actions pending in five districts. Since the filing of the motion, the panel has been notified of eleven related actions in 10 districts. Plaintiffs in seven actions and potential tag-along actions support the motion. Plaintiffs in two potential tag-along actions support centralization in the Northern District of Illinois or the Northern District of California. Common defendant ARC Automotive, Inc. and General Motors LLC, which is a defendant in twelve actions and potential tag-along actions, support centralization. All remaining responding defendants except FCA US LLC take no position or do not oppose centralization. These putative class actions present common factual questions arising from the allegation that ARC airbag inflators have a defect that can cause them to rupture, dispersing shrapnel, and injuring or killing vehicle occupants. Plaintiffs allege the remaining defendants knew or should have known of the defect, and the recalls issued to date by various vehicle manufacturer defendants have been inadequate. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings, including with respect to class certification and conserve the resources of the parties, their counsel and the judiciary. The panel concluded that the Northern District of Georgia is the appropriate transferee district. Many parties support centralization in this district, where three actions already are pending. It is relatively close to ARC's headquarters and in an easily accessible, metropolitan location for this nationwide litigation, it added. A full-text copy of the Court's December 15, 2022 order is available at bit.ly/3Ch4afZ NARRAGANSETT ELECTRIC: 2nd Amended Stipulated Sched Order Entered ----------------------------------------------------------------- In the class action lawsuit captioned as BHK REALTY, LLC; THE PALE, LLC d/b/a Buskers Pub; and THE BODHI SPA, LLC (Class Representatives) v. THE NARRAGANSETT ELECTRIC COMPANY d/b/a NATIONAL GRID; NATIONAL GRID LNG LLC; NATIONAL GRID USA SERVICE COMPANY, INC; and ALGONQUIN GAS TRANSMISSION LLC, Case No. 1:19-cv-00642-JJM-LDA (D.R.I.), the Court entered a second amended stipulated scheduling order for class certification phase as follows: Event Track 1 Deadline Track 2 Deadline Plaintiffs' Expert N/A January 6, 2023 Disclosures Defendants' Expert N/A February 3, 2023 Disclosures Close of Expert N/A March 10, 2023 Discovery Plaintiffs' Deadline January 13, 2023 April 7, 2023 to file Class Certification Motion Defendants' Deadline February 17, 2023 June 16, 2023 for Opposition to Class Certification Motion Plaintiffs' Deadline March 3, 2023 June 30, 2023 for Reply in Support of Class Certification Motion The Plaintiffs and Defendants The Narragansett Electric Company d/b/a National Grid, National Grid LNG LLC, and Algonquin Gas Transmission, LLC conferred on July 12, 2021, and the Court held a scheduling conference on July 13, 2021. This Scheduling Order establishes that this matter will proceed with respect to determining class certification only at this time and establishes the time periods and deadlines for the completion of discovery and briefing on the question of class certification. During this time, discovery will be limited to class certification issues only, including expert discovery on class certification related issues. The parties shall be permitted to amend or alter any of the deadlines set forth in this Scheduling Order upon agreement, without prior approval by the Court. In the event any of these deadlines are altered or amended, the parties shall submit a stipulation notifying the Court of the change. -- Deadline for completion of fact discovery related to class certification/deadline to determine whether parties will introduce class certification experts -- December 10, 2022; -- The parties will inform one another whether they will introduce any expert witnesses on the class certification issues. If there will not be any class certification experts, the Class Certification Phase will proceed on Track 1 below. If there will be class certification experts, the Class Certification Phase will proceed on Track 2 below. A copy of the Court's order dated Jan. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3XophFp at no extra charge.[CC] The Plaintiffs are represented by: Brian R. Cunha, Esq. BRIAN CUNHA & ASSOCIATES, P.C. 311 Pine Street Fall River, MA 02720 Telephone: (508) 675-9500 Facsimile: (508) 679-6360 E-mail: brian@briancunha.com The Defendants are represented by: Gerald J. Petros, Esq. David A. Wollin, Esq. Adam M. Ramos, Esq. Amanda A. Garganese, Esq. HINCKLEY ALLEN & SNYDER LLP 100 Westminster Street, Suite 1500 Providence, RI 02903-2319 Telephone: (401) 274-2000 Facsimile: (401) 277-9600 E-mail: gpetros@hinckleyallen.com aramos@hinckleyallen.com - and - Robert M. Duffy, Esq. Nicole J. Martucci, Esq. DUFFY & SWEENEY, LTD. 321 South Main Street, Suite 400 Providence, RI 02903 Telephone: (401) 455-0700 Facsimile: (401) 457-1802 E-mail: rduffy@duffysweeney.com nmartucci@duffysweeney.com NATIONAL RECOVERY: Grosse Files FDCPA Suit in M.D. Pennsylvania --------------------------------------------------------------- A class action lawsuit has been filed against National Recovery Agency. The case is styled as William Grosse, individually and on behalf of all others similarly situated v. National Recovery Agency doing business as: NRA Group, LLC, Case No. 1:22-cv-02083-JPW (M.D. Pa., Dec. 31, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. National Recovery Agency -- https://www.nationalrecovery.com/ -- is a nationwide provider of accounts receivable management.[BN] The Plaintiff is represented by: Scott H. Bernstein, Esq. LAW OFFICES OF SCOTT H. BERNSTEIN, LLC 103 Eisenhower Parkway, Ste. 300 Roseland, NJ 07068 Phone: (203) 246-2887 Email: scott@scottbernsteinlaw.com NYREV INC: Rodriguez Files ADA Suit in E.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Nyrev, Inc. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. Nyrev, Inc., Case No. 1:23-cv-00003 (E.D.N.Y., Jan. 1, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Nyrev, Inc. specializes in manufacturing - magazines.[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 OLIVE GARDEN: Despres Sues Over Unpaid Minimum Wages ---------------------------------------------------- Chloe Despres and Lacey Mitchell, on behalf of themselves and on behalf of all others similarly situated v. OLIVE GARDEN HOLDINGS, LLC and DARDEN CORPORATION, Case No. 1:23-cv-10013 (D. Mass., Jan. 3, 2023), is brought implicating the Defendants' violations of the Fair Labor Standards Act's ("FLSA") tip credit requirements and the subsequent underpayment of their employees at the federally mandated minimum wage rate, as well as Defendants' violations of the Massachusetts Minimum Fair Wages Law. The Defendants failed to pay the Plaintiffs and all similarly situated workers their earned minimum wages. The Defendants pay their tipped employees, including servers and bartenders, below the minimum wage rate by taking advantage of the tip-credit provisions of the FLSA and, in Massachusetts, the MFWL. The Defendants failed to correctly inform the Plaintiffs of the desire to rely on the tip credit to meet their minimum wage obligations. Defendants failed to properly inform Plaintiffs of the following: the amount of the cash wage that is to be paid to the tipped employee; the amount by which the wages of the tipped employee are increased on account of the tip credit; that all tips received by the employee must be retained by the employee; and that the tip credit shall not apply to any employee who does not receive the notice. The Plaintiffs were required to purchase certain clothing to work for Defendants, which reduced their wages below the minimum hourly wage required for tipped employees. The Plaintiffs were required to perform improper types, and excessive amounts, of non-tipped work. The Plaintiffs were required to perform greater than 20% of their time or for more than 30 consecutive minutes in a shift performing non-tip producing side work. As a result of these violations, the Defendants have lost the ability to use the tip credit and therefore must compensate the Plaintiffs and all similarly situated workers at the full minimum wage rate, unencumbered by the tip credit, and for all hours worked. In other words, the Defendants must account for the difference between the wages paid to the Plaintiffs and all similarly situated workers and the minimum wage rate, says the complaint. The Plaintiffs worked for the Defendants at the Olive Garden. The Defendants own and operate a chain of restaurants under the trade name "Olive Garden" throughout the United States.[BN] The Plaintiff is represented by: Arnold. J. Lizana, III, Esq. LAW OFFICE OF ARNOLD J. LIZANA III, P.C. 1350 Main Street, Suite 302 Springfield, MA 01103 Phone: (877) 443-0999 Email: alizana@attorneylizana.com - and - Don J. Foty, Esq. William M. Hogg, Esq. HODGES & FOTY, LLP 4409 Montrose Blvd., Suite 200 Houston, TX 77006 Phone: (713) 523-0001 Email: dfoty@hftrialfirm.com whogg@hftrialfirm.com PATTERN ENERGY: Judge Recommends Approval of Class Cert. Bid ------------------------------------------------------------ In the class action lawsuit RE PATTERN ENERGY GROUP INC. SECURITIES LITIGATION, Case No. 1:20-cv-00275-MN-JLH (D. Del.), the Hon. Judge Jennifer L. Hall recommends granting the motion to certify class: "all persons and entities who held Class A common stock of Pattern Energy Group Inc. as of the January 31, 2020 record date for the merger with Canada Pension Plan Investment Board ("Merger"), were entitled to vote on the Merger, and received the Merger consideration; excluding Defendants, their immediate families and trusts and investment vehicles operated by them or for their benefit, and excluding Riverstone Holdings LLC and its affiliates, CBRE Caledon Capital Management and its affiliates, the Public Sector Pension Investment Board and its affiliates, and any person or entity that received a legal or beneficial ownership interest in the surviving new entity that emerged from the Merger." -- Class Findings The Water Island Funds satisfy the prerequisites for a class action under Federal Rule of Civil Procedure 23(a), (b) (3), and Defendants' challenges to adequacy and predominance of common issues over potential individual issues do not preclude certification at this stage. -- Class Representatives Under Federal Rule of Civil Procedure 23, the Water Island Funds adequately represent the class, and they should be certified as the class representatives. -- Class Counsel The Water Island Funds' counsel Entwistle & Cappucci LLP is authorized to act as lead class counsel on behalf of the Class, along with liaison class counsel Farnan LLP and additional counsel Susman Godfrey L.L.P., with respect to all acts required by, or necessary to be taken under, the Federal Rules of Civil Procedure and this Court's Orders. -- Class Notice Counsel shall meet and confer regarding appropriate notice to the class. A copy of the Court's recommendation dated Jan. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3ZcZpO9 at no extra charge.[CC] PELOTON INTERACTIVE: Oral Argument Hearing Set for Feb. 28 ---------------------------------------------------------- In the class action lawsuit captioned as ERIC FISHON, et al., v. PELOTON INTERACTIVE, INC., Case No. 1:19-cv-11711-LJL (S.D.N.Y.), the Hon. Judge Lewis J. Liman entered an order seeting oral argument hearing from the parties regarding Plaintiffs' pending motion for class certification and Defendant's pending motion to exclude the reports and testimony of Plaintiffs' experts on February 28, 2023 at 2:00 P.M. The hearing will be held in-person in Courtroom 15C, 500 Pearl Street, New York, New York. Peloton is an American exercise equipment and media company based in New York City. A copy of the Court's order dated Jan. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3VN70A7 at no extra charge.[CC] PROGRESSIVE DIRECT: Court Grants in Part Bid to Dismiss Watson Suit ------------------------------------------------------------------- In the case, MELISSA WATSON, Plaintiff v. PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant, Civil Action No. 5:22-203-DCR (E.D. Ky.), Judge Danny C. Reeves of the U.S. District Court for the Eastern District of Kentucky, Central Division, Lexington, grants in part and denies in part Progressive's motion to dismiss Watson's Complaint. Watson totaled her car in May 2021. She then filed a claim seeking to recover her losses with her insurer, Progressive. Progressive deemed her car to be a total loss and paid her $7,228.73 to settle the claim. But Watson sued, claiming that Progressive paid her less than what she was owed, violating both her insurance policy and Kentucky law. Watson crashed her 2013 Volkswagen Beetle on May 26, 2021. She filed a claim with Progressive the following day, reporting that the car suffered damage from the collision. Progressive determined that Watson's car was a "total loss" under her insurance policy. Progressive contracts with Mitchell International, Inc., to calculate the ACV of a vehicle that is determined to be a total loss. It calculated the ACV of Watson's vehicle pursuant to the policy and sent Watson a "Vehicle Valuation Report" on June 2, 2021, explaining the amount that she was owed. Applying Mitchell's five-step process, the report first identifies three comparable Volkswagen Beetles with list prices of $12,000 (Vehicle 1), $11,975 (Vehicle 2), and $15,428.00 (Vehicle 3). After averaging the adjusted values of the three comparable vehicles, the report states that the base vehicle value of Watson's car was $8,309.28. Finally, after subtracting $80.55 for fees related to the condition of her vehicle and $1,000 for her deductible from the base vehicle value, the report concluded that Progressive owed Watson a settlement of $7,228.73. Without the Projected Sold Adjustment ("PSA") deductions, Watson would have received an ACV payment that was $904.33 higher than the payment that she received. Watson accepted the settlement. Watson filed a purported class action Complaint on Aug. 4, 2022. She asserts four counts for relief against Progressive in her Amended Complaint, all involving Progressive's application of the PSA in her Vehicle Valuation Report. In Count 1, she claims that Progressive violated the Kentucky Consumer Protection Act ("KCPA") by "failing to disclose material facts regarding its application of an arbitrary PSA to comparable vehicles in order to reduce their market value" and "misrepresenting material facts regarding its application of an arbitrary PSA." She also asserts a breach of contract claim (Count 2), contending that Progressive violated her insurance policy by applying the PSA which resulted in the defendant's paying her "less than her vehicle's ACV required by the insurance contract." Watson also claims that Progressive breached the covenant of good faith and fair dealing by unreasonably exercising its discretion in calculating the ACV of her vehicle when it "intentionally invented and applied PSA's to undervalue comparable vehicles" (Count 3). Finally, in Count 4 of the Amended Complaint Watson seeks a declaratory judgment that Progressive's application of unfounded PSA's results in a valuation of less than the ACV Progressive is required under its insurance contracts to pay insureds. Progressive has filed a motion to dismiss Watson's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Watson first claims that Progressive violated her rights under the KCPA by engaging in one or more deceptive business practices. Progressive argues that Watson's KCPA claim should be dismissed because it does not meet the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure. Judge Reeves opines that Watson has sufficiently pleaded a misrepresentation claim under the KCPA. He says Watson has pleaded a violation of the KCPA with sufficient specificity. Progressive's claim that it cannot be held liable under the KCPA because it fully disclosed the PSA in Watson's policy fails. However, Judge Reeves agrees with Progressive that Watson has failed to state a claim under the KCPA for unfair business practices. Watson has failed to allege that Progressive's calculation and application of the PSA are unconscionable. Because Watson remained "perfectly capable" of challenging her settlement offer, she cannot claim that Progressive's actions regarding the offer were unconscionable. Progressive next argues that Watson's breach of contract claim (Count 2) should be dismissed. In Count 2, Watson claims that Progressive breached her insurance contract by paying her "less than the vehicle's ACV" after applying "improper and unfounded PSA's in Mitchell vehicle valuation reports." Judge Reeves holds that Progressive's arguments to dismiss this claim are unavailing. First, Progressive's reliance on Kentucky's Total-Loss Regulation is misplaced. Relatedly, its claim that Watson agreed to the use of a third-party software system to calculate the ACV in her insurance contract is irrelevant. Finally, Progressive's argument that Watson is precluded from asserting a breach of contract claim because she did not challenge her settlement offer either under the terms of her insurance policy or under Kentucky's Total Loss Regulation fails. In short, Watson has sufficiently pleaded that Progressive breached her insurance policy when it paid her less than her vehicle's ACV. Watson alleges in Count 3 that Progressive violated the implied covenant of good faith and fair dealing by exercising its discretion unreasonably and in a manner that was arbitrary and capricious through its calculation of the ACV of her vehicle. JUdge Reeves finds that Watson did not specify in her Complaint whether her claim sounds in tort or in contract. Hence, her claim will be dismissed to the extent that it sounds in tort law. Moreover, all but one of Watson's claims under Count 3 are duplicative of her breach of contract claim. Watson has plausibly alleged that Progressive abused its discretion in calculating the ACV by failing to investigate the PSA. Finally, in Count 4, Watson seeks a declaration that Progressive breaches the terms of its insurance policy by baing the valuation and payment of claims on values of comparable vehicles that have been reduced by factually erroneous PSA's. Progressive argues that the Plaintiff's declaratory judgment claim should be dismissed for lack of standing. Judge Reeves opines that Watson's claim fails because she has not pleaded a request for prospective relief. And even if Watson could demonstrate an injury in fact, Progressive correctly notes that her claim for declaratory relief should be dismissed as duplicative of her breach of contract claim. For these reasons, Judge Reeves grants in part and denies in part Progressive's motion to dismiss for failure to state a claim. Watson has sufficiently pleaded a claim for relief under the KCPA (Count 1) by alleging that Progressive deceived consumers by misrepresenting and failing to disclose the nature and application of the PSA. Watson has also sufficiently pleaded a breach of contract claim (Count 2) by stating that Progressive violated the terms of its insurance policy when it paid her $904.33 less than the ACV of her vehicle. Her claim that Progressive violated the implied covenant of good faith and fair dealing (Count 3) is barred as duplicative of her breach of contract claim, except for her allegation that Progressive failed to properly research the PSA. Finally, Watson's claim for a declaratory judgment (Count 4) fails and will be dismissed because Watson lacks standing to seek prospective relief. A full-text copy of the Court's Dec. 30, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/yjy7se97 from Leagle.com. PURDUE FEDERAL: Grant of Arbitration Bid in Neal Suit Affirmed -------------------------------------------------------------- In the case, Jeffery Neal, on behalf of himself and all others similarly situated, Appellant-Plaintiff v. Purdue Federal Credit Union, Appellee-Defendant, Court of Appeals Case No. 22A-PL-762 (Ind. App.), the Court of Appeals of Indiana affirms the trial court's order granting the Appellee-Defendant's motion to compel arbitration. A member of Purdue Federal Credit Union (PFCU) filed a proposed class-action complaint against PFCU regarding overdraft fees. Neal later replaced that member as the Plaintiff and filed his own complaint. Purdue Federal Credit Union (PFCU) is a member-owned, not-for-profit cooperative and financial institution, which provides account and loan services to its members. In September 2019, PFCU member Noah Shoaf filed a proposed class-action complaint alleging that PFCU improperly assessed and collected overdraft fees on its deposit accounts. In his amended complaint, which was filed in January 2020, Shoaf acknowledged that his checking account with PFCU was governed by a membership and account agreement. In January 2020, PFCU mailed o its members their respective December 2019 month and quarterly end statements. Included with the statement was the Arbitration Provision. In March 2020, PFCU filed an answer to Shoaf's amended complaint, in which PFCU did not invoke the Arbitration Provision. On Dec. 18, 2020, Neal, who is also a PFCU member, filed a motion to intervene as a substitute class representative and for leave to amend the complaint. The motion stated that Shoaf, who never filed a motion to certify a class, wished to withdraw as class representative. On Dec. 22, 2020, the trial court gave PFCU 30 days to object to Neal's motion. On Jan. 21, 2021, PFCU filed a notice that it had no objection. On Feb. 1, 2021, Neal filed his complaint, designated as a second amended complaint, in which he acknowledged that his checking account with PFCU was governed by the Account Agreement; he did not (and does not) claim that he was unaware of any of its terms. On March 10, 2021, PFCU filed a motion to compel arbitration, asserting that Neal accepted PFCU's offer to arbitrate by failing to opt out of the Arbitration Provision. Neal filed a response in opposition, asserting that no enforceable arbitration agreement existed and that PFCU had "waived its right to arbitrate by continuing to litigate in court for over a year and by consenting to" the filing of his complaint. The trial court held a hearing on the motion, during which Neal's counsel stated that the fact that Neal received the notice of the Arbitration Provision was "undisputed," but that the effectiveness of that notice was in dispute. In February 2022, the trial court issued an order granting PFCU's motion to compel and staying the proceedings. Neal now appeals. First, he asserts that PFCU affirmatively waived any right to compel arbitration by litigating the case for more than a year and affirmatively consenting to the filing of his complaint. The Court of Appeals disagrees. PFCU litigated the case for more than a year against Shoaf, but PFCU filed its motion to compel arbitration less than six weeks after Neal replaced Shoaf as the plaintiff and filed his own complaint. The Court of Appeals concurs with PFCU's assertion that while Shoaf was the plaintiff, only his individual rights and obligations were at issue, and not Neal's. Therefore, nothing that actually happened before Neal became a plaintiff would serve as evidence of any waiver of PFCU's right to arbitrate against Neal. Moreover, neither Shoaf nor Neal ever sought to certify a class, and Neal cites no authority for the proposition that consenting to the substitution of a plaintiff constitutes a waiver of any potential defenses against the new plaintiff. In sum, even if PFCU acted inconsistently with any right it might have had to compel arbitration with Shoaf, the same cannot be said about Neal. The Court of Appeals now addresses Neal's argument that PFCU failed to meet its burden of proving a valid agreement to arbitrate in the first place. It disagrees with Neal. PFCU and Neal had previous dealings that resulted in the execution of the Account Agreement, which provided that its terms were subject to change at any time, that PFCU would notify Neal of any changes, and that any disputes regarding the agreement would be resolved by legal action in Tippecanoe County. PFCU's offer to change the dispute-resolution portion of the agreement explicitly stated that assent to the Arbitration Provision may be manifested by silence or inaction, and that Neal could opt out of the provision by giving written notice within 30 days without having to close his account. Under these circumstances, the Court of Appeals concludes that it was reasonable that Neal should have notified PFCU if he did not intend to accept the offer, and that Neal accepted the offer by remaining silent and inactive past the deadline. Finally, the Court of Appeals addresses Neal's claim that PFCU's proposal to amend the Account Agreement with the Arbitration Provision violated a duty of good faith and fair dealing. It rejects Neal's characterization of the Arbitration Provision as "unilateral," given that he could have opted out of it without closing his account. Neal also cites no binding precedent for the proposition that Indiana credit unions owe potential or existing members a duty of good faith and fair dealing in forming a contract. Nor does he cite any binding precedent for the related assertion that PFCU had a duty to inform him and its other members of Shoaf's proposed class action, for which no class was ever certified. Based on the foregoing, the Court of Appeals affirms the trial court's grant of PFCU's motion to compel arbitration. A full-text copy of the Court's Dec. 30, 2022 Order is available at https://tinyurl.com/33rvs6cd from Leagle.com. Lynn A. Toops -- LTOOPS@COHENANDMALAD.COM -- Vess A. Miller -- VMILLER@COHENANDMALAD.COM -- Lisa LaFornara -- LLAFORNARA@COHENANDMALAD.COM -- Tyler Ewigleben, Cohen & Malad, LLP, Indianapolis, Indiana, Attorneys for the Appellant. James R. Branit -- Branit@LitchfieldCavo.com -- Phillip G. Litchfield -- LitchfieldP@LitchfieldCavo.com -- Litchfield Cavo LLP, Chicago, Illinois, Attorneys for the Appellee. QUANTUMSCAPE CORP: Appeals Class Cert. Order in Malriat Suit ------------------------------------------------------------ QuantumScape Corporation, et al., filed an appeal from the District Court's Order dated December 19, 2022 entered in the lawsuit entitled JOSEPH MALRIAT, individually and on behalf of all others similarly situated v. QUANTUMSCAPE CORPORATION F/K/A KENSINGTON CAPITAL ACQUISITION CORP., and JAGDEEP SINGH, Case No. 3:21-cv-00058, in the United States District Court for the Northern District of California. The lawsuit is a class action on behalf of the Plaintiff and other persons and entities that purchased or otherwise acquired QuantumScape securities between December 8, 2020 and December 31, 2020, inclusive, seeking to recover compensable damages under the Securities Exchange Act of 1934 arising from the Defendants' issuance of false and misleading statements resulting to the precipitous decline in the market value of the Company's securities. As reported in the Class Action Reporter, the Hon. Judge William H. Orrick entered an order on December 19, 2022, certifying a class defined as "investors that purchased QuantumScape stock during the class period and who say they were injured based on the alleged misrepresentations and subsequent fall in stock prices. The Court further appointed class representatives and class counsel. Judge Orrick ruled that the Plaintiffs meet the predominance requirements of Fed. R. Civ. Proc. 23(b). The Defendants do not contest whether a class action is superior to other available methods of litigation. Here, the Class Members' interests in individually controlling the prosecution or defense of separate action, the extent that other similar litigation has begun, the desirability of concentrating the litigation in this forum, and the likely difficulties in managing a class action all favor class litigation, the court added. The appellate case is captioned as Joseph Malriat, et al. v. QuantumScape Corporation, et al., Case No. 23-80000, in the United States Court of Appeals for the Ninth Circuit, filed on Jan. 3, 2023.[BN] Defendants-Petitioners QuantumScape Corporation, Jagdeep Singh, Timothy Holme, and Kevin Hettrich are represented by: Ignacio E. Salceda, Esq. Dale R. Bish, Esq. Rebecca L. Epstein, Esq. Andrew Frantela, Esq. WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 Page Mill Road Palo Alto, CA 94304 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 E-mail: isalceda@wsgr.com dbish@wsgr.com bepstein@wsgr.com afrantela@wsgr.com - and - Paul N. Harold, Esq. WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 1700 K Street, NW Washington, DC 20006 Telephone: (202) 973-8800 Facsimile: (202) 973-8899 E-mail: pharold@wsgr.com Plaintiffs-Respondents JOSEPH MALRIAT, individually and on behalf of all others similarly situated, et al., are represented by: Nicholas Ian Porritt, Esq. LEVI & KORSINSKY, LLP 1101 30th Street NW Suite 115 Washington, DC 20007 Telephone: (202) 524-4290 E-mail: nporritt@zlk.com - and - Adam Marc Apton, Esq. Adam Christopher McCall, Esq. LEVI & KORSINSKY, LLP 75 Broadway, Suite 202 San Francisco, CA 94111 Telephone: (415) 373-1671 Email: aapton@zlk.com amccall@zlk.com - and - Gregory M. Potrepka, Esq. LEVI & KORSINSKY, LLP 1111 Summer Street Suite 403 Stamford, CT 06905 Telephone: (203) 992-4523 E-mail: gpotrepka@zlk.com - and - Shannon L. Hopkins Max Edward Weiss, Esq. LEVI & KORSINSKY, LLP 55 Broadway 10th Floor New York, NY 10006 Telephone: (917) 923-4004 E-mail: mweiss@zlk.com shopkins@zlk.com RADIUS GLOBAL: Snyder Files FDCPA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Radius Global Solutions LLC. The case is styled as Heather Snyder, individually and on behalf of all others similarly situated v. Radius Global Solutions LLC, Case No. 7:22-cv-11009 (S.D.N.Y., Dec. 31, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Radius Global Solutions -- https://www.radiusgs.com/ -- is a leading provider of accounts receivable, customer relations and revenue cycle management solutions.[BN] The Plaintiff is represented by: Robert Thomas Yusko, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: ryusko@steinsakslegal.com RAEL INC: Blansette Sues Over Deceptive and Misleading Marketing ---------------------------------------------------------------- Sarah Blansette, individually, and on behalf of those similarly situated v. RAEL, INC., Case No. 4:23-cv-00006-DMR (N.D. Cal., Jan. 3, 2023), is brought arising from the Defendant's deceptive and misleading practices with respect to its marketing and sale of its cosmetic, hygiene, and beauty products (collectively, the "Product" or "Products"). The Defendant manufactures, markets, and sells its Products throughout the United States including the State of California. Rael was launched in 2017 with the goal of providing "natural and organic feminine care products." Despite the representations made on the Products' labels, marketing, and advertising which lead reasonable consumers to believe that the Products are "natural," they are not. The brand has grown significantly, and this growth was not by accident. Rather, it developed from specifically targeting the "natural" market with intense focus. The Defendant's marketing efforts stress the purported "natural" composition of their Products. Notably, the principal display panel of all of the Products states "Natural." The word "Natural" is a representation to a reasonable consumer that the Product contains only natural ingredients. This represents that the Product is "natural" to consumers. Reasonable consumers, including Plaintiff, interpret "natural" to mean that the product does not include synthetic ingredients. Despite this representation, the Products are not natural because they include multiple synthetic ingredients. Specifically, the Products contain the following synthetic ingredients: Phenoxyethanol, Polysorbate 20, Sodium Benzoate, Citric Acid, Caprylyl Glycol, Ethylhexylglycerin, 1,2-Hexanediol, and Butylene Glycol. The Plaintiff and those similarly situated relied on Defendant's misrepresentations that the Products are "natural" when purchasing the Products. This deception is not limited to the Products' labels, and rather, it is omnipresent throughout Defendant's marketing efforts, says the complaint. The Plaintiff is a citizen of California who purchased the Products. The Defendant produces, markets and distributes the Products in retail stores across the United States including stores physically located in the State of California and this District.[BN] The Plaintiff is represented by: J. Ryan Gustafson, Esq. GOOD GUSTAFSON AUMAIS LLP 2330 Westwood Blvd., No. 103 Los Angeles, CA 90064 Phone: (310) 274-4663 Email: jrg@ggallp.com - and - Amir Shenaq, Esq. SHENAQ PC 3500 Lenox Road, Ste. 1500 Atlanta GA 30326 Phone: (888) 909-9993 Email: amir@shenaqpc.com - and - Steffan T. Keeton, Esq. THE KEETON FIRM LLC 100 S Commons, Ste 102 Pittsburgh PA 15212 Phone: (888) 412-5291 Email: stkeeton@keetonfirm.com RAPID INVESTMENTS: Denial of Arbitration in Reichert Suit Affirmed ------------------------------------------------------------------ In the case, JEFFREY REICHERT; GARY MOYER, individually and on behalf of all others similarly situated, Plaintiffs-Appellees v. RAPID INVESTMENTS, INC., DBA Access Freedom, DBA Rapid Financial Solutions; CACHE VALLEY BANK, Defendants-Appellants, and KEEFE COMMISSARY NETWORK, LLC, DBA Access Corrections, Defendant, Case No. 21-35530 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms the district court's order denying Rapid's motion to compel arbitration. Moyer was incarcerated in the Kitsap County, Washington jail in May and December 2017 and February 2018. In accord with Washington law, his cash was confiscated by jail officers each time he was booked. Upon his release, Moyer received a debit card, known as a "release card," issued and serviced, respectively, by Defendants Cache Valley Bank and Rapid Investments, Inc. (collectively, "Rapid"), with a balance of $14.62 in May 2017, $40 in December 2017, and $95.26 in February 2018. Moyer was not provided an option to receive his money in any other form. In February 2018, a guard specifically instructed Moyer that if he wanted his money back, he needed to take the card. Moyer received the Account Agreement for the February 2018 card; whether he also read it on the earlier occasions is not clear. Rapid entered two substantially similar cardholder agreements into evidence -- one in use as of June 2016 and one that went into effect in February 2018. The record is not conclusive as to which of these agreements Moyer received with his February 2018 card. Both agreements also have a section governing "Cancellation and Suspension," but with slightly different provisions. The later (February 2018) Agreement contains identical language as to cancellation, but the fee for closing the account with check disbursement is $0. Both versions of the Agreement contain arbitration provisions. The cards, which Moyer did not request and to which no alternative was offered, were delivered to Moyer pre-activated, and in two of the three instances began to charge maintenance fees before Moyer conducted a single transaction. After his third release, Moyer used the release card the day it was issued to him to withdraw the bulk of his balance from an ATM machine. The lawsuit leading to this appeal was filed as a putative class action by Reichert. Like Moyer, Reichert received a Rapid debit card upon his release from the Kitsap County Jail. Unlike Moyer, he denied having received any cardmember agreement with his card. Moyer represents both a Washington class and a national class. He claims that Rapid's debit cards carry fees that violate the federal Electronic Funds Transfer Act and Washington state law. Rapid moved to compel arbitration because the classwide damages requested exceed the $15,000 threshold contained in the arbitration agreement. Noting that Reichert claimed not to have received the Agreement containing the arbitration clause, the district court denied the motion. Reichert then moved to certify a class. The district court granted the motion but conditioned class certification on the addition of a plaintiff who had received the Agreement. Moyer was added as a named plaintiff to satisfy that condition. Rapid moved to compel arbitration of Moyer's claims. The district court denied the motion for the reasons recited in the Court's prior Order Denying Motion to Compel Arbitration. The court found that Moyer's claims were identical to Reichert's "in all material respects." Rapid appealed, and another panel of the Ninth Circuit held that it was unclear whether the district court properly considered all relevant facts and circumstances specific to Moyer -- particularly because there was no declaration from Moyer in the record. It vacated the district court's order denying the motion to compel arbitration and remanded the case, declining to express any views on whether a valid, enforceable agreement exists. On remand, the district court focused on whether Moyer had accepted an offer to enter into the Agreement, concluding that Moyer's use of the card did not constitute assent to the contract. It court reasoned that under Washington law, neither Moyer's silence nor his failure to cancel the card according to the terms of the Agreement could be considered an acceptance. Based on that reasoning, the district court denied the motion to compel arbitration. Rapid timely appealed. The Ninth Circuit concentrates on the February 2018 transaction because in only that instance is it undisputed that Moyer received an Agreement with the release card. Rapid argues that the district court erred in determining that Moyer's retention and use of the release cards did not demonstrate, as a matter of law, his intent to accept the terms of the Agreement, including the arbitration clause. The Ninth Circuit disagrees. It opines that Moyer's retention of the release card, prior to use, cannot constitute assent to the Agreement. Nor was Moyer under a duty to act -- the "exceptional" circumstance in which silence or inaction may constitute acceptance. Because Moyer's receipt and retention of the release card did not objectively manifest assent, no contract was formed at the time Moyer exited the jail with the card or when he retained the card prior to use. The Ninth Circuit next considers whether Moyer's subsequent use of the card to withdraw funds, while remaining silent, constituted assent to those terms, including the arbitration provisions. It holds that because the money Moyer withdrew was his own, because the card he was issued came pre-activated and there was no other way to obtain immediate use of his own funds, and because Rapid structured its fees to begin deducting after three days regardless of use, Moyer's decision to withdraw his own money cannot reasonably be understood to manifest assent to the contract. Because Moyer did not assent to the Agreement through either his receipt or his use of the release card, no contract was formed. The Nin th Circuit does not consider whether the contract fails for lack of consideration. In sum, the Ninth Circuit holds that Moyer did not agree to the cardholder agreement or its mandatory arbitration clause. Because acceptance is an issue of contract formation, it requires judicial resolution. Accordingly, the Ninth Circuit affirms the district court's order denying Rapid's motion to compel arbitration. A full-text copy of the Court's Dec. 30, 2022 Opinion is available at https://tinyurl.com/fpr2cn2w from Leagle.com. George F. Verschelden (argued) -- george.verschelden@stinson.com -- Stinson LLP, Kansas City, Missouri; Emily J. Harris -- eharris@corrcronin.com -- Corr Cronin Michelson Baumgardner Fogg & Moore LLP, Seattle, Washington, for the Defendants-Appellants. Chris R. Youtz (argued) -- info@sylaw.com -- Richard E. Spoonemore, and Eleanor Hamburger, Sirianni Youtz Spoonemore Hamburger PLLC, Seattle, Washington; Masimba Mutamba, Palm Beach County Attorney's Office, West Palm Beach, Florida, for the Plaintiffs-Appellees. REALPAGE INC: Kramer Sues Over Conspiracy to Fix Rental Prices -------------------------------------------------------------- Kate Kramer, individually and on behalf of all others similarly situated v. REALPAGE, INC.; ALLIED ORION GROUP, LLC; AVALONBAY COMMUNITIES, INC.; AVENUE5 RESIDENTIAL, LLC; BELL PARTNERS, INC.; BOZZUTO MANAGEMENT COMPANY; CAMDEN PROPERTY TRUST; CUSHMAN & WAKEFIELD, INC.; EQUITY RESIDENTIAL; GREYSTAR REAL ESTATE PARTNERS, LLC; HIGHMARK RESIDENTIAL, LLC; and UDR, INC., Case No. 1:22-cv-03835 (D.D.C., Dec. 29, 2022), is brought arising from the Defendants' conspiracy to fix, raise, maintain, and stabilize rental housing prices in the Greater Washington, D.C. Metro Area and to recover treble damages, injunctive relief, and other relief as appropriate, based on the Defendants' violations of federal antitrust laws. The 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, in the Greater Washington, D.C. Metro Area. 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 that drives rent. This data is fed into an algorithm, along with additional data collected from Defendant RealPage's myriad of other data-analytics and rental-management software products. RealPage's algorithm uses that data to generate 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% of the time, and RealPage's "Revenue Management Advisors" monitor clients' compliance with that recommendation. 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 their competitors are setting Washington, D.C. rental prices using the same algorithm, each Defendant property manager could allow a larger share of their units to remain vacant while maintaining higher rental prices across their properties. This increased their revenue at the expense of renters. The Defendants' strategy only succeeded because of the pricing coordination among competing property managers enabled by this cartel. Knowing this, Defendant RealPage repeatedly and explicitly emphasizes that for the software to work properly, everyone needs to accept its suggested price at least 80%-90% of the time. 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. In the words of an executive at one of RealPage's major clients: "The beauty of YieldStar is that it pushes you to go places that you wouldn't have gone if you weren't using it. Second, Defendant RealPage polices cartel members by applying heavy pressure on them to accept the algorithm's suggested price at least 80%-90% 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 Defendant 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, Defendant 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%"--was the means by which to do it. 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 rental units in the Greater Washington, D.C. Metro Area. Plaintiff and the Class, who rent in the Greater Washington, D.C. Metro Area 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 Plaintiff rented a residential unit in a property managed by Lessor Defendant AvalonBay, Inc., named Avalon First and M in the District of Columbia, beginning in 2019 through 2021. RealPage provides software and services to managers of residential rental apartments, including the YieldStar/AI Revenue Management software.[BN] The Plaintiff is represented by: Christian P. Levis, Esq. Vincent Briganti, Esq. Peter Demato, Esq. Radhika Gupta, Esq. LOWEY DANNENBERG, P.C. 44 South Broadway, Suite 1100 White Plains, NY 10601 Phone: (914) 997-0500 Fax: (914) 997-0035 Email: vbriganti@lowey.com clevis@lowey.com pdemato@lowey.com rgupta@lowey.com - and - David R. Scott, Esq. Patrick McGahan, Esq. Michael Srodoski, Esq. G. Dustin Foster, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP 156 South Main Street P.O. Box 192 Colchester, CT 06145 Phone: (860) 537-5537 Facsimile: (860) 537-4432 Email: david.scott@scott-scott.com pmcgahan@scott-scott.com msrodoski@scott-scott.com gfoster@scott-scott.com - and - Thomas J. Undlin, Esq. Stacey Slaughter, Esq. Geoffrey H. Kozen, Esq. J. Austin Hurt, Esq. ROBINS KAPLAN LLP 800 LaSalle Avenue, Suite 2800 Minneapolis, MN 55402 Phone: (612) 349-8500 Facsimile: (612) 339-4181 Email: tundlin@robinskaplan.com sslaughter@robinskaplan.com gkozen@robinskaplan.com ahurt@robinskaplan.com REALPAGE INC: Sued Over Conspiracy to Fix Rental Housing Prices --------------------------------------------------------------- David Precht, individually and on behalf of all others similarly situated v. REALPAGE, INC.; GREYSTAR REAL ESTATE PARTNERS, LLC; CUSHMAN & WAKEFIELD, INC.: LINCOLN PROPERTY COMPANY; PEABODY PROPERTIES, INC.; WINNCOMPANIES LLC AND WINNRESIDENTIAL MANAGER CORP.; UDR, INC.; SHP MANAGEMENT CORP.; THE RELATED COMPANIES, INC.; and SIMPSON PROPERTY GROUP, LLLP, Case No. 1:22-cv-12230 (D. Mass., Dec. 29, 2022), is brought arising from the Defendants' conspiracy to fix, raise, maintain, and stabilize rental housing prices in the Greater Boston Metro Area and to recover treble damages, injunctive relief, and other relief as appropriate, based on the Defendants' violations of federal and state antitrust laws. The 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, in the Greater Boston Metro Area. 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 that drives rent. This data is fed into an algorithm, along with additional data collected from Defendant RealPage's myriad of other data-analytics and rental-management software products. RealPage's algorithm uses that data to generate 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% of the time, and RealPage's "Revenue Management Advisors" monitor clients' compliance with that recommendation. 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 their competitors are setting Washington, D.C. rental prices using the same algorithm, each Defendant property manager could allow a larger share of their units to remain vacant while maintaining higher rental prices across their properties. This increased their revenue at the expense of renters. The Defendants' strategy only succeeded because of the pricing coordination among competing property managers enabled by this cartel. Knowing this, Defendant RealPage repeatedly and explicitly emphasizes that for the software to work properly, everyone needs to accept its suggested price at least 80%-90% of the time. 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. In the words of an executive at one of RealPage's major clients: "The beauty of YieldStar is that it pushes you to go places that you wouldn't have gone if you weren't using it." Second, Defendant RealPage polices cartel members by applying heavy pressure on them to accept the algorithm's suggested price at least 80%-90% 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 Defendant 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, Defendant 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%"--was the means by which to do it. 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 rental units in the Greater Boston Metro Area. The Plaintiff and the Class, who rent in the Greater Boston Metro Area 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 Plaintiff has rented a residential unit in a property known as Avalon Acton in Acton, Massachusetts from 2019 through the date of this filing. RealPage provides software and services to managers of residential rental apartments, including the YieldStar/AI Revenue Management software.[BN] The Plaintiff is represented by: Anthony A. Orlandi, Esq. Tricia R. Herzfeld, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN, 37203 Phone: (615) 254-8801 Facsimile: (615) 255-5419 Email: aorlandi@bsjfirm.com triciah@bsjfirm.com RECEIVABLES PERFORMANCE: Ramirez Suit Removed to N.D. Illinois -------------------------------------------------------------- The case styled as Emmanuel Ramirez, individually and on behalf of all others similarly situated v. Receivables Performance Management, LLC, Case No. 2022CH12126 was removed from the Circuit Court of Cook County Illinois, to the U.S. District Court for the Northern District of Illinois on Jan. 3, 2023. The District Court Clerk assigned Case No. 1:23-cv-00031 to the proceeding. The nature suit is stated as Contract Product Liability. Receivables Performance Managements -- http://www.receivablesperformance.com/-- is a one of the nation's leading debt collection agencies.[BN] The Plaintiff appears pro se. REPUBLIC SERVICES: Augustine Files TCPA Suit in D. Arizona ---------------------------------------------------------- A class action lawsuit has been filed against Republic Services Incorporated. The case is styled as Michael Augustine, on behalf of himself and others similarly situated v. Republic Services Incorporated, Case No. 2:22-cv-02195-GMS (D. Ariz., Dec. 29, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Republic Services -- https://www.republicservices.com/ -- is an American waste disposal company whose services include non-hazardous solid waste collection, waste transfer, waste disposal, recycling, and energy services.[BN] The Plaintiff is represented by: Eric H. Weitz, Esq. Max S. Morgan, Esq. WEITZ FIRM LLC 1515 Market St., Ste. 1100 Philadelphia, PA 19102 Phone: (267) 587-6240 Fax: (215) 689-0875 Email: max.morgan@theweitzfirm.com RESURGENT CAPITAL: Walsh Files FDCPA Suit in D. Connecticut ----------------------------------------------------------- A class action lawsuit has been filed against Resurgent Capital Services L.P., et al. The case is styled as Kathy Walsh, individually and on behalf of all others similarly situated v. Resurgent Capital Services L.P., LVNV Funding LLC, Case No. 3:22-cv-01660 (D. Conn., Dec. 31, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Resurgent Capital Services, LP -- https://www.resurgent.com/ -- provides financial services. The Company manages debt portfolios for credit grantors and debt buyers.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: ysaks@steinsakslegal.com RHODE ISLAND: District Court Grants Bid to Stay Liberty v. RIDOC ---------------------------------------------------------------- In the case, CHARLENE LIBERTY; JOHN DAPONTE; JOHN DAVIS; DUANE GOMES; ADAM HANRAHAN; and CHARLES KENNER, on behalf of themselves and all others similarly situated; and DISABILITY RIGHTS RHODE ISLAND, on behalf of its constituents, Plaintiffs v. RHODE ISLAND DEPARTMENT OF CORRECTIONS; PATRICIA COYNE-FAGUE, in her official capacity as the Director of the Rhode Island Department of Corrections; MATTHEW KETTLE, in his official capacity as the Assistant Director of Institutions and Operations at the Rhode Island Department of Corrections; and BARRY WEINER, in his official capacity as the Assistant Director of Rehabilitation Services at the Rhode Island Department of Corrections, Defendants, C.A. No. 19-573-JJM-PAS (D.R.I.), Magistrate Judge Patricia A. Sullivan of the U.S. District Court for the District of Rhode Island grants Rhode Island Department of Corrections' motion for stay. Filed on Oct. 25, 2019, this putative class action seeks injunctive and declaratory relief to ameliorate alleged violations of constitutional and federal statutory limitations on the use of restrictive housing by Rhode Island Department of Corrections ("RIDOC") to sanction and manage prisoners who have been identified as suffering from serious and persistent mental illness ("SPMI"). The Liberty complaint is narrowly focused on a "limited issue": whether RIDOC has systemically placed inmates known to be suffering from SPMI in restrictive housing in violation of the Eighth and Fourteenth Amendments of the United States Constitution. As pertinent to the stay motion, this issue is also before the Court in three cases that preceded Liberty: Morris v. Travisono, 69-cv-4192-JJM ; Paiva v. RIDOC, 17-mc-14-JJM; and Diaz v. Wall, 17-cv-94-JJM. Ongoing court-annexed mediation proceedings in these three cases is a critical part of the foundation underpinning the Court's exercise of its discretion to enter a time-limited stay of all proceedings in Liberty, and not just a limited discovery stay. Morris is a 1969 class action in which the Court certified the class of all current and future inmates of the Adult Correction Institutions with a subclass of inmates at the Behavioral Correctional Unit. In 1972, the Morris Court entered an injunction that has come to be known as the Morris Rules, which broadly addressed, inter alia, inmate classification and the use and indicia of restrictive housing for all inmates, including those suffering from what has since come to be called SPMI, as well as any mental illness. The Morris Rules fell into disuse and the injunction was not enforced for many years until Jan. 16, 2017, when Mr. Richard Paiva, proceeding pro se, initiated Paiva. After protracted activity involving several appeals, on Dec. 21, 2018, the First Circuit found that the injunction remained in full force and effect and vacated the District Court's rejection of Mr. Paiva's attempt to revive the Morris Rules. Paiva was remanded for further proceedings. On Dec. 18, 2019, the Court granted Mr. Paiva's motion to intervene in Morris and to be designated as successor class representative. The Court appointed successor class counsel and, on Feb. 7, 2020, ordered that all proceedings then pending in Morris be stayed pending further order of the Court. On Sept. 18, 2020, Morris/Paiva was referred to Judge Sullivan for court-annexed mediation. After eight mediation sessions, and with substantial input from all parties, she appointed a Rule 706 expert to be paid for by RIDOC for the purpose of obtaining expert opinions for guidance in connection with the ongoing mediation proceedings. Since the appointment of this Rule 706 expert, all parties in Morris/Paiva have engaged in court-annexed mediation in good faith. On Dec. 8, 2022, in the interest of judicial efficiency, in furtherance of the Court's goal to facilitate RIDOC's good faith commitment to address all Morris/Paiva issues and following consultation with the Morris/Paiva parties and the previously appointed Morris/Paiva Rule 706 expert, the Court appointed the same independent mental health expert who had been vetted and chosen as the Rule 706 Expert in Liberty. On March 7, 2017, Mr. Samuel Diaz, proceeding pro se, filed a case with two loosely connected claims. While no formal stay has entered, Diaz has not been actively litigated at all while the mediation has been pending. The pace of the Diaz mediation slowed in 2021, after the Court and RIDOC had begun to invest substantial resources in the Morris/Paiva mediation. Mr. Diaz has been, and continues to be, a member of the Morris/Paiva class. With the Diaz mediation ongoing, and with Morris/Paiva reactivated as a class action by the First Circuit with a new class representative and newly court-appointed class counsel, Liberty was filed on Oct. 25, 2019. Cast as a putative class action, Liberty seeks only injunctive and declaratory relief. All of the putative class members in Liberty are members of the certified class in Morris/Paiva. The Liberty claims are narrower than, but substantially overlap with the injunctive relief claims in Diaz; further, they fall within the broad scope of what is in issue in Morris/Paiva. On July 6, 2020, the Court referred Liberty to Judge Sullivan for court-annexed mediation. However, despite this mediation referral, the Plaintiffs did not agree to any respite from aggressive discovery and litigation. In June 2022, at the Plaintiffs' request, the Court discussed with the parties the possibility of resuming mediation. On July 21, 2022, the Plaintiffs indicated that they would agree to the Court's engagement of a Rule 706 mental health expert similar to the engagement in Morris/Paiva, with a time-limited stay of discovery. RIDOC indicated its agreement to a Rule 706 expert that it would pay for, provided that the time-limited stay would stop all proceedings, including discovery, to allow it to focus on the mediation. On Nov. 16, 2022, the Plaintiffs advised the Court in mediation that they would agree to a 90-day discovery stay, finite but renewable, provided that RIDOC would complete production of certain documents (to which RIDOC had agreed) and that Plaintiffs could proceed with a discovery motion to define "restrictive housing" as used in their complaint. Plaintiffs did not advise the Court (or RIDOC) that they planned to use the stay-based hiatus to file their motion for class certification. On Nov. 29, 2022, RIDOC filed the instant motion for a stay. On Dec. 8, 2022, the Court appointed the same mental health Rule 706 Expert in both Morris/Paiva and Liberty. On the same day, the Plaintiffs filed their opposition to the stay motion. Judge Sullivan states that in these four cases -- Liberty, Morris/Paiva and Diaz -- with the good-faith participation of RIDOC, the Court has invested substantial judicial resources in ongoing mediation. That effort is now supported by two Rule 706 experts in Morris/Paiva, the case with a certified class and class counsel, one of whom is also the independent mental health Rule 706 Expert in Liberty. The Court appointed its Liberty Rule 706 Expert with the understanding that there would be a halt to aggressive and time-consuming litigation to facilitate mediation similar to what has been ongoing since 2020 in Morris/Paiva and consistent with DRRI's statutory obligation. Because the parties in Liberty have been unable to agree on the precise scope of the stay, the Court now exercises its discretion to adopt a stay that is based on the parties' agreement (as far as it went), but that, considering all of the equities, is framed to protect the integrity of the court-annexed mediation in all four cases and to facilitate the work of the court-appointed Rule 706 Expert not just in Liberty but also in Morris/Paiva. In exercising this discretion, Judge Sullivan points out that the Court has considered the substantial burden that litigation of the class certification motion in Liberty will impose on the Court and the parties because of the factually and legally difficult issues that it will present. Further, while it is true that, over the more than three years that Liberty has been pending, the Court had repeatedly (as the Plaintiffs acknowledge) inquired of the Plaintiffs about class certification, the Court did not -- and would never -- suggest that the right timing for class certification would be during a time-limited stay entered to facilitate court-annexed mediation, particularly where the Court has appointed a Rule 706 Expert (paid for by RIDOC) to support the mediation. Based on the foregoing, Judge Sullivan finds that litigation of class certification during this first phase of Rule 706 Expert's appointment would significantly and potentially catastrophically interfere with the ongoing mediations and the work of the Rule 706 Expert in both Morris/Paiva and Liberty. She further finds that a delay of a few months will inflict no prejudice on the putative Liberty class, especially where all of the Liberty putative class members are already members of a certified class in Morris/Paiva, in which the same Rule 706 Expert is also appointed. Relatedly, tJudg Sullivan finds that the limited stay as advocated for by the Plaintiffs' counsel would likely be more harmful to the true interests of the putative Liberty class because it would further delay solutions that RIDOC was already working toward before Liberty was filed. Mindful of RIDOC's willingness to mediate, as demonstrated in Diaz and Morris/Paiva, she also finds that the stay is consistent with DRRI's statutory obligation to mediate and to litigate as a last resort. As to timing, as cabined by the Court's further instructions to the Rule 706 Expert, entered under seal in both Liberty and Morris/Paiva, the first phase of the Rule 706 Expert's work will be completed by April 7, 2023. Accordingly, instead of 90 days as the parties agreed, this stay will remain in full force and effect until April 21, 2023, to allow Rule 706 Expert's work in both Morris/Paiva and Liberty to proceed unimpeded. On April 21, 2023, the Court will determine whether (and, if necessary, with what limitations) the stay should continue. The parties will provide the Court with their positions regarding any such continuation in filings that are due no later than April 11, 2023. Regarding RIDOC's obligation to continue litigation-based document production, Judge Sullivan orders that RIDOC will comply with its agreement to complete production of certain documents during the stay, provided that RIDOC's duty to cooperate with the Rule 706 Expert and to focus on the mediation in both Liberty and Morris/Paiva will have priority during the period of the stay. Finally, prior to the appointment of the Liberty Rule 706 Expert, when the Court was focused on the Liberty mediation only, and with the parties seemingly near agreement regarding the scope of the stay, she indicated that a motion for clarification of the term "restrictive housing," as it is used in the Liberty complaint, could be filed during the stay. Because the Court now is considering not just Liberty, but also Morris/Paiva, as well as because the now-entered Order of appointment of the Court's Rule 706 Expert provides that her access to information is not limited by any such definition, Judge Sullivan finds that it is not necessary for this term to be defined during the period of the stay. Therefore, she further orders that the stay bars the Plaintiffs from filing their "restrictive housing" discovery motion. Based on the foregoing, Judge Sullivan grants RIDOC's motion for stay. Acting pursuant to her inherent power, she orders that the matter is stayed for all purposes until April 21, 2023, with the exception of the ongoing completion of certain discovery as outlined. Relatedly, Judge Sullivan cancels the Court's previously scheduled quarterly discovery status conferences and vacates its Orders requiring the parties to file status conference reports, pending further Order of the Court. A full-text copy of the Court's Dec. 30, 2022 Memorandum & Order is available at https://tinyurl.com/42wa68z6 from Leagle.com. RICKSHAW BAGWORKS: Genwright Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Rickshaw Bagworks, Inc. The case is styled as Thomas Genwright, individually, and on behalf of all others similarly situated v. Rickshaw Bagworks, Inc., Case No. 1:22-cv-10981 (S.D.N.Y., Dec. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Rickshaw Bagworks -- https://www.rickshawbags.com/ -- is a custom bag design and manufacturing company, specializing in messenger bags, backpacks, computer carrying cases, iPad and Kindle sleeves, laptop computer sleeves, tote bags and related accessories.[BN] The Plaintiff is represented by: William Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, Ste. 39th Floor New York, NY 10007 Phone: (212) 595-6200 Email: wdownes@mizrahikroub.com SCANSTAT TECHNOLOGIES: Morton Suit Removed to D. South Carolina --------------------------------------------------------------- The case styled as Peggy Morton, individually and on behalf of all others similarly situated v. Scanstat Technologies Inc. McLeod Regional Medical Center doing business as: McLeod Orthopaedics, Travis Novinger, MD, Case No. 2022-CP-13-00841 was removed from the Chesterfield Court of Common Pleas, to the U.S. District Court for the District of South Carolina on Jan. 3, 2023. The District Court Clerk assigned Case No. 4:22-cv-04713-BHH to the proceeding. The nature suit is stated as Other P.I. for Personal Injury. ScanSTAT -- https://www.scanstat.com/ -- is focused on providing healthcare professionals with efficient, reliable health information management solutions.[BN] The Plaintiff is represented by: Blake Garrett Abbott, Esq. ANASTOPOULO LAW FIRM (CHA) 32 Ann Street, Unit B Charleston, SC 29403 Phone: (843) 614-8888 Email: blake@akimlawfirm.com - and - Paul J Doolittle, Esq. POULIN WILLEY ANASTOPOULO LLC 32 Ann Street Charleston, SC 29403 Phone: (843) 834-4712 Email: pauld@akimlawfirm.com The Defendants are represented by: A. Victor Rawl, Jr., Esq. GORDON AND REES LLP 40 Calhoun Street, Suite 350 Charleston, SC 29401 Phone: (843) 714-2501 Fax: (843) 804-4691 Email: vrawl@grsm.com SEEMAN HOLTZ: $650K Class Deal in Millstein Suit Has Final Approval ------------------------------------------------------------------- In the case, FANNY B. MILLSTEIN, Plaintiff v. ERIC HOLTZ, et al., Defendants, Case No. 21-CV-61179-RAR (S.D. Fla.), Judge Rodolfo A. Ruiz, II, of the U.S. District Court for the Southern District of Florida grants the Class's Unopposed Motions for Final Approval of Class Settlement and for Attorneys' Fees and Expenses. The Plaintiff brought the lawsuit seeking monetary damages based on its claim that SHPC was an instrumentality of, or participated in, a RICO enterprise executed by SH&S. Plaintiff alleged that as a result of this participation, the SH Enterprise transferred more than $5 million away from the SH Enterprise to SHPC, whose ownership was transferred from the control of the SH Enterprise to a third party. SHPC vigorously denied the Class's allegations of wrongdoing in discussions with Plaintiff's counsel, claiming that its owners foreclosed on SHPC as pledged collateral for certain extensions of credit made to SH&S for the acquisition of insurance companies by SHPC Holdings I, LLC, which owned SHPC. The Parties agreed to the material terms of a Settlement on June 20, 2022, and they finalized and executed the Settlement Agreement on Aug. 5, 2022. The Class filed its Unopposed Motion for Preliminary Approval of Class Settlement, for Certification of Settlement Class and Notice to the Settlement Class on Sept. 6, 2022. The Court held a hearing on the Class's Motion for Preliminary Approval of the Settlement on Sept. 19, 2022, and granted preliminary approval of the Settlement the same day. The Class filed its Unopposed Motion for Attorneys' Fees and Costs on Oct. 17, 2022, and its Motion for Final Approval of the Class Settlement on December 13. The Parties engaged in direct negotiation, including an in-person meeting with counsel for SHPC and other Defendants prior to filing the Complaint in the action. Subsequently, the Plaintiff and SHPC had numerous discussions on issues concerning liability and the amount of damages, based on the amount transferred to SHPC. The Plaintiff consented to extend deadlines for SHPC to respond to the Complaint in order to try and reach a settlement. On July 20, 2022, the Plaintiff and SHPC agreed to basic terms of a settlement on behalf of the Plaintiff and the Class and executed the proposed Settlement Agreement. The Settlement Class is an opt-out class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. The Settlement Class is defined as: "All persons who purchased or held a beneficial interest in one or more of the Notes within the applicable limitations period. Excluded from the Class are Defendants, any entity in which any Defendant had a controlling interest, Defendants' officers, directors, legal representatives, successors, and assigns, and Defendants' immediate family members." The Settlement creates a common fund of $650,000 for the Settlement Class. The Settlement Fund will be used to pay the Settlement Class Members' damages in individual Settlement Awards, the Class's costs and attorneys' fees, and the costs of notice and claims administration. All Settlement Class Members had until Oct. 31, 2022, to object to, or opt out of, the Settlement. Thus, all Settlement Class Members who did not opt out of the Settlement will be eligible to receive a distribution from the Settlement Fund. The Court authorizes distributing net settlement funds through the Settlement Administrator, Daniel J. Stermer, who is the Corporate Monitor in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida in Case No. 50-2021-CA-008718-XXX-MB ("Settlement Administrator" or "Corporate Monitor") pro rata, based on principal losses in the Notes, of the net settlement proceeds from this action, which will be added to any funds for distribution from the Corporate Monitorship. Each Settlement Class Members' Settlement Award will be determined by the Settlement Administrator who will be responsible to approve claims and distribute proceeds from the Settlement along with all amounts recovered by the Corporate Monitor. In exchange for the benefits conferred by the Settlement, all Settlement Class Members who do not opt out will release the Defendant and its past, current and future owners, directors, officers, affiliates, independent contractors, secured lenders, Lender Parties, and professionals, and their employees, officers, directors, independent contractors, and professionals of any and all past, present or future claims, liabilities, demands, causes of action, obligations, controversies, executions, or lawsuits of the Settlement Class Members as of the date of Final Approval, whether legal, statutory, equitable, or of any other type or form, whether under federal, state, or local law, whether known or unknown, whether brought or could have been brought in the Litigation, and whether brought in an individual, representative, or any other capacity. The Released Parties do not include Marshal Seeman, Eric Holtz and the Estate of Eric Holtz, or Brian Schwartz, and this Settlement Agreement and Release provides no benefits to them. Pursuant to the Preliminary Approval Order, the Settlement Administrator implemented the Notice Program using contact information the Corporate Monitor already had for the Settlement Class Members. The Settlement Administrator sent the E-Mailed Notices and Mailed Notices on Sept. 22, 2022. Settlement Class Members were given until Oct. 31, 2022 to either opt out or object to the Settlement. No Settlement Class Member objected to the Settlement, and 22 Settlement Class members opted out. The Class Counsel filed their Unopposed Motion for Attorneys' Fees on Oct. 17, 2022, requesting 30% of the Settlement Fund or $195,000. SHPC does not object to this fee request nor does SHPC object to the Class Counsel's request for reimbursement of $3,663.23 in documented litigation expenses. The Parties negotiated attorneys' fees and costs only after reaching agreement on all other material terms of the Settlement. Judge Ruiz finds that the Settlement Agreement fair, adequate and reasonable and is not the product of collusion between the parties. He also finds that the Class Counsel's request for fees of 30% of the $650,000 Settlement Fund is reasonable and appropriate and that all of the out-of-pocket expenses were reasonably and necessarily incurred in furtherance of the prosecution of the lawsuit. For these reasons, Judge Ruiz grants the Class's Unopposed Motion for Final Approval and approves the Settlement. He also grants the Class's Unopposed Motion for Attorneys' Fees and Costs and approves an award of attorneys' fees to the Class Counsel in the amount of $195,000, and approves reimbursement of the Class Counsel's litigation expenses in the amount of $3,663.23, all to be paid out of the Common Fund. A full-text copy of the Court's Dec. 30, 2022 Order is available at https://tinyurl.com/p3ma5mt5 from Leagle.com. SENTINEL PROTECTION: Paul Sues Over Security Guards' Unpaid OT -------------------------------------------------------------- DANIEL PAUL, on his own behalf and others similarly situated, Plaintiff v. SENTINEL PROTECTION, LLC, Florida Limited Liability Company, WATCHDOG SECURITY, LLC, Florida Limited Liability Company, MARC A. MILLER, an Individual, and CANDY PARTEE, an Individual, Defendants, Case No. 0:23-cv-60002 (S.D. Fla., Jan. 2, 2023) is a class action brought by the Plaintiff, on behalf of himself and other current and former employees of Defendants similarly situated to him, for unpaid overtime compensation and inapplicable minimum wages under the Fair Labor Standards Act. The Plaintiff worked as a security guard for Defendant during the period of approximately 2020 through 2022. Sentinel Protection, LLC provides and maintains security protection to commercial and residential properties.[BN] The Plaintiff is represented by: Maguene D. Cadet, Esq., LAW OFFICE OF DIEUDONNE CADET, P.A. 2500 Quantum Lakes Drive, Suite 203 Boynton Beach, FL 33426 Telephone: (561) 853-2212 Facsimile: (561) 853-2213 E-mail: Maguene@DieudonneLaw.com SKYWEST AIRLINES: Hearing on Summary Adjudication Bid Vacated ------------------------------------------------------------- In the class action lawsuit captioned as GREGORY HOROWITZ, v. SKYWEST AIRLINES, INC., Case No. 3:21-cv-04674-MMC (N.D. Cal.), the Hon. Judge Maxine M. Chesney entered an order: 1. vacating hearing on defendant's motion for summary adjudication; and 2. deferring ruling on the plaintiff's motion for class certification. Before the Court is defendant's motion for summary adjudication, filed December 2, 2022. The Plaintiff has filed opposition, to which defendant has replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court deems the matter appropriate for determination on the parties' respective written submissions, and hereby vacates the hearing scheduled for January 6, 2023. In light of the above, the Court defers ruling on plaintiff's Motion for Class Certification, and the hearing on said motion, presently scheduled for January 6, 2023, will be reset, as appropriate, upon resolution of defendant's Motion for Summary Adjudication. SkyWest Airlines is an American regional airline headquartered in St. George, Utah, United States. A copy of the Court's order dated Jan. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3ZbiOz6 at no extra charge.[CC] SOULCYCLE INC: Rodriguez Files ADA Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against SoulCycle, Inc. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. SoulCycle, Inc., Case No. 1:23-cv-00010 (E.D.N.Y., Jan. 2, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. SoulCycle -- http://www.soul-cycle.com/-- is a fitness company owned by Equinox Group which offers indoor cycling and spinning workout classes.[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 TARGET CORP: Gouwens' Amended Complaint Dismissed With Prejudice ---------------------------------------------------------------- In the case, JESSICA GOUWENS, individually and on behalf of all others similarly situated, Plaintiff v. TARGET CORPORATION, Defendant, Case No. 3:22-cv-50016 (N.D. Ill.), Judge Iain D. Johnston of the U.S. District Court for the Northern District of Illinois, Western Division, grants Target's motion to dismiss and dismisses the Plaintiff's Amended Complaint with prejudice. Target manufactures, labels, markets, and sells a "fruit punch" flavored concentrated liquid water enhancer under its brand, Market Pantry. At some point between December 2020 and June 2021, Gouwens purchased one of these products, expecting that the fruit punch flavor was only from natural flavoring ingredients and not from artificial flavoring ingredients. The Plaintiff claims that laboratory analysis shows that the malic acid in the Product, is artificial dl-malic acid. She claims that because of the concentration of dl-malic acid, the Product is not naturally flavored, and the front label should disclose the presence of not only natural but also artificial flavor. The Plaintiff also states that the ingredient list is misleading because it only identifies the generic "malic acid" instead of identifying the ingredient as "dl-malic acid". She claims that had she known the Product contained dl-malic acid instead of natural d-malic acid, she would not have bought the Product or would have paid less. The Plaintiff brings this putative class action complaint against Target. She brings three claims under Illinois Law: (1) a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA); (2) breach of express warranty; and (3) common law fraud. She also brings claims under the consumer protection laws of Michigan, Texas, Arkansas, Delaware, Wyoming, Virginia, and Oklahoma. Plaintiff seeks both injunctive relief and money damages. Target now moves to dismiss the Amended Complaint in its entirety under Rule 12(b)(6), arguing that the Plaintiff's claims are preempted, implausible, and inadequately pled. First, Judge Johnston agrees with Target that it is not misleading for it to disclose that its products contain natural flavors or to use an accurate regulatory disclosure that is mandated by federal law." Accordingly, the Plaintiff's ICFA claim is based on a fanciful and unreasonable interpretation of the Product's label. Because the Plaintiff has not stated a plausible claim for relief under the ICFA, her ICFA claim is dismissed with prejudice. Next, the Plaintiff does not argue waiver in her response to the motion to dismiss. However, the table of contents of her response contains a line-item that purportedly seeks to argue waiver of Target's footnote argument, but curiously she does not raise the argument in the body of her response. The table of contents line-item makes clear that Plaintiff contemplated and had the opportunity to develop the argument in the motion but failed to do so, and as a result the Plaintiff has "waived waiver" by not challenging Target's footnote argument. Absent any argument to the contrary, because the other state's consumer fraud statutes apply the same reasonable consumer standard which the Plaintiff failed to show in her ICFA claim, Judge Johnston finds that this claim must fail too. Target's motion to dismiss the consumer fraud claims under the laws of Michigan, Texas, Arkansas, Delaware, Wyoming, Virginia, and Oklahoma, is granted. Finally, because the Plaintiff has not plausibly alleged deception, her claims for breach of express warranty and common-law fraud are dismissed. Judge Johnston reasons that these claims are premised on the Plaintiff's assertion that Target's labeling is deceptive or misleading based on the same allegations discussed in connection with her ICFA claims. Without a plausible allegation of deception, these remaining claims must also suffer the same fate for the reasons already stated. For these reasons, Judge Johnston grants Target's motion to dismiss and dismisses the Plaintiff's Amended Complaint with prejudice. A full-text copy of the Court's Dec. 30, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/yu6xzw2e from Leagle.com. THEATRE REFRESHMENT: Malcher Sues Over Bartenders' Unpaid Wages --------------------------------------------------------------- OLAF MALCHER, individually and on behalf of all other persons similarly situated, Plaintiff v. THEATRE REFRESHMENT CO. OF NEW YORK AND LENNY LOWENGRUB, Jointly and severally, Defendants, Case No. 150046/2023 (N.Y. Sup., New York Cty., Jan. 2, 2023) arises from the Defendants' violation of the New York Labor Law by failing to pay the minimum wage, failing to provide an accurate wage, unlawfully retaining gratuities, and engaging in retaliatory conduct. Plaintiff Malcher worked for the Defendants as a bartender from April 2003 to 2007 and again from December 2012 to the present. Theatre Refreshment Co. of New York operates the concession stands at the 18 Broadway theatres that the Shubert Organization owns, with many theatres having multiple concession stands. Defendant Lowengrub is the chief executive officer of Defendant Theatre Refreshment Co. of New York.[BN] The Plaintiff is represented by: Douglas B. Lipsky, Esq. Milana Dostanitch, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10017-6705 Telephone: (212) 392-4772 E-mail: doug@lipskylowe.com milana@lipskylowe.com UNITED BEHAVIORAL: Discovery & Class Cert Deadlines Extended ------------------------------------------------------------ In the class action lawsuit captioned as DESERT COVE RECOVERY, LLC, et al., v. UNITED BEHAVIORAL HEALTH, Case No. 4:19-cv-05721-JSW (N.D. Cal.), the Hon. Judge Jeffrey S. White entered an order granting in part plaintiffs' motion to extend discovery and class certification deadlines as follows: Accordingly, the Court extends the deadlines as follows: -- The Court maintains January 4, 2023 as a deadline to complete fact discovery, other than depositions, necessary for class certification. -- The deposition deadlines imposed by Judge Spero shall not be modified. -- The Plaintiffs' motion for class certification shall now be due on March 6, 2023. -- The Defendant's opposition to Plaintiffs' motion shall now be due on April 17, 2023. -- The Plaintiffs' reply shall now be due on May 8, 2023. -- The Court will hear Plaintiffs' motion for class certification on June 9, 2023 at 9:00 a.m. On December 8, 2022, the Court extended fact discovery until January 4, 2022, pending resolution of this motion. The Defendant argue that the Plaintiffs' concerns could be addressed by a more limited extension. The Court previously denied Plaintiffs' request to extend the deadline to file an amended complaint because they failed to comply with the Court's Order requiring requests for extensions to be filed a week before deadlines expired. The Court also concluded that the Plaintiffs did not act with diligence to finalize the protective order. The Court concludes that Plaintiffs have not established good cause to extend the deadline to propound new fact discovery, and it will not extend the remaining deadlines by 90 days. However, the Court does find good cause to grant a partial extension to permit the parties' depositions to be completed, and it will continue the briefing schedule and hearing date on the motion for class certification to allow for briefing to incorporate any information developed during those depositions. A copy of the Court's order dated Jan. 3, 2022 is available from PacerMonitor.com at https://bit.ly/3jTbvMa at no extra charge.[CC] VISIONEER INC: Fontanez Sues Over Blind-Inaccessible Website ------------------------------------------------------------ RAMON FONTANEZ, individually, and on behalf of all others similarly situated, Plaintiff v. Visioneer, Inc., Defendant, Case No. 150037/2023 (N.Y. Sup., New York Cty., Jan. 2, 2023) is a class-action lawsuit challenging Defendant's discriminatory business practices as its Website, visioneer.com, allegedly contained access barriers that prevented Plaintiff and other visually impaired and/or legally blind individuals from purchasing products thereon, in violation of the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law. The Plaintiff and the Class seek, inter alia, a preliminary and permanent injunction, other declaratory relief, statutory damages, actual and punitive damages, pre-judgment and post-judgment interest, and reasonable attorneys' fees and expense. The Defendant is an online retail company, that owns and/or operates visioneer.com. Through the Website, Defendant sells its products, such as as printers and documents scanners for personal computers.[BN] The Plaintiff is represented by: William J. Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, 39th Floor New York, NY 10007 Telephone: (212) 595-6200 Facsimile: (212) 595-9700 E-mail: wdownes@mizrahikroub.com ZAER LTD: Jackson Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against Zaer Ltd. The case is styled as Sylinia Jackson, on behalf of herself and all other persons similarly situated v. Zaer Ltd., Case No. 1:23-cv-00030 (S.D.N.Y., Jan. 3, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Zaer Ltd. -- https://www.zaerltd.com/193/homepage.htm -- is a leading manufacturing and wholesale corporation founded in 1995.[BN] The Plaintiff is represented by: Dana Lauren Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (917) 796-7437 Fax: (212) 982-6284 Email: danalgottlieb@aol.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2023. All rights reserved. ISSN 1525-2272. 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