/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230124.mbx C L A S S A C T I O N R E P O R T E R Tuesday, January 24, 2023, Vol. 25, No. 18 Headlines AMERIHOME MORTGAGE: Patton Sues Over COVID-19 Recovery Options ARC AUTOMOTIVE: Jophlin Suit Transferred to N.D. Ga. AUSTRALIAN SUN: Feliz Sues Over Blind-Inaccessible Website AZAZIE INC: Faces Feliz Suit Over Blind-Inaccessible Website BANCORP INC: Order Granting Bid to Dismiss Laske Class Suit Upheld BARE PERFORMANCE: Scheibe Sues Over Misbranded Dietary Supplements CENTENE MANAGEMENT: Mudahy Labor Suit Removed to C.D. Cal. CERTIFIED CREDIT: Gibson Seeks to Stay Deadlines for Class Cert Bid CERTIFIED TREE: Mrkvicka Sues Over Unpaid Overtime for Laborers CHUBB INSURANCE: Faces Class Action Suit Over Consumer Fraud CNC PRECISION: Faces Kurpan Wage-and-Hour Suit in N.D. Ohio CONNECTED INVESTORS: Class Action Settlement Gets Initial Nod DEVEREUX FOUNDATION: Court Denies Bid to Dismiss Title IX Claim DOLLAR GENERAL: Husar Suit Removed From to E.D. Ky. DRAFTKINGS INC: Judge Dismissed Putative Securities Class Action DRAFTKINGS INC: S.D. New York Tosses Stockholders' 2nd Amended Suit DRIVER PROVIDER: Wins Bid for Judgment on Pleadings DYNAMIC MANUFACTURING: Bamberg Sues Over Biometric Data Retention EDGEBANDING SERVICES: Arevalo Sues Over Unlawful Labor Practices ELECTRONIC INTERFACE: Fails to Pay Proper Wages, Arbelaez Claims FIRST SOLAR: Arizona Court Allows Pontiac GERS to Amend Complaint FLYNN RESTAURANT: Bailey Sues Over Drivers' Unreimbursed Expenses FOWLER PACKING: Class Action Settlement Gets Prelim Approval FREEWAY INSURANCE: Bid to Strike Class Claims Junked in Whittaker FTD LLC: Bids to Dismiss or for Arbitration in Virgilio Suit Denied GEICO GENERAL: FLSA Collective Conditional Certification Sought HASBROUCK HEIGHTS, NJ: Pietz Sues Over Coordinators' Unpaid Wages HSBC BANK: Kelly Ni Sues Over Unpaid Wages for Personal Bankers INTERFACE INC: Steamfitters Local Seeks to Certify Rule 23 Class JBT AEROTECH: Robinson Sues Over Technicians' Unpaid Minimum Wages JOHN HANCOCK: Court Modifies Class Cert Case Schedule in Kroetz JUBILANT HOLLISTERSTIER: Goddard Labor Suit Removed to E.D. Wash. KELLER WILLIAMS: Agreed to Settle TCPA Class Suit for $40-Million KRAFT HEINZ: Tatum Suit Transferred to N.D. Ill. LASERSHIP INC: Owusu Seeks Delivery Drivers' OT Wages Under FLSA LASTPASS US: Faces Class Action Lawsuit Over Alleged Data Breach LATCH INC: Faces Schwartz Class Suit Over Decline of Stock Price LATINO FARM: Cruz Labor Suit Removed to E.D. Cal. LOWES HOME: Azizpor Sues Over Failure to Provide Proper Wages MDL 3050: Seeley Suit Consolidated in Chantix Product Liability Row MENARD INC: Class Cert Scheduling Order Entered in Shoemaker MOODY'S CO-WORKER: Class Settlement in Purinton Gets Final OK NAUTILUS INSURANCE: Shalabi Case Remanded to Parish of Orleans Ct. NCR CORPORATION: Fails to Pay Timely Wages, Olubowale Suit Claims NEW ASIA: Minnesota Court Grants Li's Bid to Dismiss Counterclaim NEW YORK GYPSUM: Bray, et al., Seek Rule 23 Class Certification NEW YORK, NY: Court Junks Plaintiffs' Bid for Reconsideration NEW YORK, NY: Seeks Jan. 31 Extension to Class Cert Opposition NEWELL BRANDS: Discloses Personal Info to Facebook, Carroll Says NEXT STOP: Morales FLSA Suit Transferred to D.N.J. NORTHEAST WORK: Fails to Pay OT Wages Under FLSA, Obermeier Claims PFIZER INC: Houghton Suit Transferred to S.D.N.Y. PHILADELPHIA, PA: Faces Suit Over Towing of Legally Parked Vehicles RBC DOMINION: Vacation, Holiday Pay Class Suit Certified in Ontario REALPAGE INC: Parker Sues Over House Rental Price Fixing Conspiracy ROYAL BANK: Faces Class Suit Seeking $800-M Employees' Compensation SEEKING HEALTH: General Pretrial Management Entered in Donet Suit SHARP HEALTHCARE: Camus Suit Removed to S.D. Cal. SILVERGATE CAPITAL: Faces Class Suit Over Securities' Violations SITEL OPERATING: Court Dismisses Foster's 1st Amended Complaint SMILING CAMEL: Vasquez FLSA Class Suit Seeks Minimum & OT Wages SOUTHWEST AIRLINES: Bids for Lead Plaintiff Appointment Due Feb. 13 SSM HEALTH: Doe Privacy Suit Removed to E.D. Mo. STATOIL USA: $7MM Class Settlement in Rescigno Suit Gets Final OK STEM INC: Faces Investors' Suit Over Undisclosed Financial Info T & S ROOFING: Villeda Suit Removed to S.D. Fla. T-MOBILE US: Data Breach Settlement Claims Submission Set Jan. 23 THEKEY OF CALIFORNIA: Fails to Pay Care Givers' Minimum & OT Wages THOMAS EXCAVATING: Kise Suit Seeks Unpaid Wages for CDL Drivers TIC INT'L: S.D. Indiana Refuses to Dismiss Krupa Data Breach Suit TRADER JOE'S: Dark Chocolate Contains Heavy Metals, Brennessel Says UNITED STATES: Bran, et al., Seek to Certify Class Action VALENTINO LOPEZ: Plaintiffs Seek to Certify H-2A worker Class WALTER BERRY: Court Recommends Dismissal of Wells Suit WERNER ENTERPRISES: Court Denies Petrone's Bid for New Trial WISCONSIN: Seeks to Stay Briefing on Plaintiffs' Jan. 9 Motions WORLD WRESTLING: McMahon Sued by Shareholder Over Return to Company WYNN RESORTS: Court Tosses Ferris Bid to Seal Certain Exhibits XTO ENERGY: Brusamontis File Bid for Class Certification ********* AMERIHOME MORTGAGE: Patton Sues Over COVID-19 Recovery Options -------------------------------------------------------------- RICHIE H. PATTON, SR. and MONICA J. PATTON, individually and on behalf of all others similarly situated, v. AMERIHOME MORTGAGE COMPANY, LLC d.b.a. AMERIHOME MORTGAGE, Case No. 3:23-cv-00076 (N.D. Ohio, Jan. 14, 2023) alleges that AmeriHome has refused to review the Plaintiffs and the class' eligibility for COVID-19 Recovery Options. According to the complaint, AmeriHome's improper demand for the Plaintiffs and each Class member to submit a loss mitigation application based upon false pretenses constitute a failure to act in compliance with the regulations of the HUD Secretary and evidence a lack of reasonable skill, care, and diligence, as well as a failure to act good faith and with fair dealing with respect to each of the loans. AmeriHome obtained servicing rights to the Plaintiffs' Loan effective June 1, 2022. At the time AmeriHome obtained servicing rights to the Plaintiffs' Loan, AmeriHome claimed that the Loan was in default for the payment due and owing for September 1, 2019 and thereafter. On August 26, 2022 and December 12, 2022, AmeriHome sent written correspondence in response to dispute through which AmeriHome apologized for "being unable to resolve the matter when the [Plaintiffs] called on August 11, 2022" and for "provid[ing] inaccurate information when the [Plaintiffs] contacted [AmeriHome]" but further continued to erroneously demand a full application and provided further disinformation, namely, that since "the loan was delinquent prior to [the] CARE Act, a complete Loss Mitigation Application is required to determine program eligibility based on investor guidelines today." Per the SF Handbook, AmeriHome was required to review the Plaintiffs for COVID-19 Recovery Options, including a Recovery Modification. Had AmeriHome offered such a modification, the Plaintiffs had the ability and desire to accept the same and fulfill their payment obligation thereunder which would have cured the default on the Plaintiffs' Loan. Due to AmeriHome's conduct, the Plaintiffs have not yet obtained a loan modification and remain at imminent risk of a foreclosure judgment and the sale of their home, the suit says. AmeriHome's alleged improper actions caused the Plaintiffs to suffer from actual and proximate damage, including (a) Legal fees, costs, and expenses to submit written disputes in an attempt to have AmeriHome mitigate the harm caused to the Plaintiffs to which they did not receive a proper response; (b) The lost opportunity to obtain a Recovery Modification at an interest rate of 5.22% the PMMS Rate for 30-year fixed rate conforming Mortgages (U.S. average) as of August 11, 2022, as such rate is now significantly higher; (c) Legal fees, costs, and expenses related to the continued defense of the Foreclosure; and (d) Significant delay in the loss mitigation process and rehabilitation of their credit. The Plaintiffs and Class members were either discouraged from obtaining a COVID-19 Recovery Option or otherwise delayed in their efforts to obtain a COVID-19 Recovery Option due to gathering and submitting a "fully documented" loss mitigation application, added the suit. Mr. and Mrs. Patton are each a natural person residing in Allen County, Ohio. AmeriHome is a mortgage servicer.[BN] The Plaintiffs are represented by: Marc E. Dann, Esq. Daniel M. Solar, Esq. Brian D. Flick, Esq. Michael A. Smith, Jr., Esq. DANN LAW 15000 Madison Avenue Lakewood, OH 44107 Telephone: (216)373-0539 Facsimile: (216)373-0536 E-mail: notices@dannlaw.com ARC AUTOMOTIVE: Jophlin Suit Transferred to N.D. Ga. ---------------------------------------------------- The case styled Aaron Jophlin, Ronald Wolf, Latricia Ford, Terre Bohman, Cortney Driggers, Whitney Harrelson, Patricia Mobley, individually and on behalf of all others similarly situated, Plaintiffs v. Arc Automotive, Inc., General Motors, LLC, Hyundai Motor Group, Hyundai Motor Company, Hyundai Motor America, Kia Corporation, Kia America, Inc., Hyundai Mobis Co., Ltd. Mobis Parts America, Defendants, Case No. 2:22-cv-02507, was transferred from the United States District Court for the District of South Carolina to the United States District Court for the Northern District of Georgia on January 6, 2023. The Clerk of Court for the Northern District of Georgia assigned Case No. 1:23-cv-00076-ELR to the proceeding. The suit is brought against the Defendants for alleged Motor Vehicle Product Liability claims. Arc Automotive, Inc. is a global manufacturer that produces a full complement of inflators for automotive airbag applications.[BN] The Plaintiffs are represented by: John David O'Neill, Esq. Joseph F. Rice, Esq. Kevin R. Dean, Esq. MOTLEY RICE, LLC-SC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 Telephone: (843) 216-9629 Facsimile: (843) 216-9450 E-mail: jdoneill@motleyrice.com The Defendants are represented by: Joel H. Smith, Esq. BOWMAN AND BROOKE, LLP-SC 1441 Main Street, Suite 1200 Columbia, SC 29201 Telephone: (803) 726-7422 E-mail: joel.smith@bowmanandbrooke.com - and - Matthew A. Goldberg, Esq. Timothy Paul Pfenninger, Esq. DLA PIPER LLP (US) One Liberty Place 1650 Market Street, Suite 5000 Philadelphia, PA 19103-7300 Telephone: (215) 656-3377 Facsimile: (215) 606-3377 E-mail: matthew.goldberg@dlapiper.com timothy.pfenninger@dlapiper.com - and - Christopher James Daniels, Esq. NELSON MULLINS RILEY AND SCARBOROUGH PO Box 11070 Columbia, SC 29211 Telephone: (803) 799-2000 Facsimile: (803) 256-7500 - and - Scott D. Maclatchie, Esq. WOMBLE BOND DICKINSON (US) LLP-CHARLOTTE 301 South College Street, Suite 3500 Charlotte, NC 28205 Telephone: (704) 331-4942 AUSTRALIAN SUN: Feliz Sues Over Blind-Inaccessible Website ---------------------------------------------------------- ROBERTA FELIZ, individually, and on behalf of all others similarly situated, Plaintiff v. AUSTRALIAN SUNPROTECTION, LLC, Defendant, Case No. 150219/2023 (N.Y. Sup., New York Cty., January 8, 2023) is a class-action lawsuit challenging Defendant's discriminatory business practices as its website solbari.com 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. According to the complaint, the Plaintiff was repeatedly denied full and equal access to Defendant's website as a result of the existence of these access barriers. These access barriers impede Plaintiff's ability to navigate the website and complete a purchase. As a result of the access barriers, the Plaintiff was repeatedly denied, on each of her visits, the opportunity to purchase and to obtain the full enjoyment of the long sleeve swimsuit and the other sun resistant hats, shirts, swimsuits and other clothes sold by Defendant. 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. Australian Sun Protection, LLC is an online retail company that sells apparel through its website.[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 AZAZIE INC: Faces Feliz Suit Over Blind-Inaccessible Website ------------------------------------------------------------ ROBERTA FELIZ, individually, and on behalf of all others similarly situated, Plaintiff v. AZAZIE, INC., Defendant, Case No. 150220/2023 (N.Y. Sup., New York Cty., January 8, 2023) is a class-action lawsuit challenging Defendant's discriminatory business practices as its website azazie.com 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. According to the complaint, the Plaintiff was repeatedly denied full and equal access to Defendant's website as a result of the existence of these access barriers. These access barriers impede Plaintiff's ability to navigate the website and complete a purchase. As a result of the access barriers, the Plaintiff was repeatedly denied, on each of her visits, the opportunity to purchase and to obtain the full enjoyment of a dress and/or other special event dresses. 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. Azazie, Inc. is an online retail company that sells special event dresses and accessories through its website.[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 BANCORP INC: Order Granting Bid to Dismiss Laske Class Suit Upheld ------------------------------------------------------------------ In the case, TIM LASKE, INDIVIDUALLY AND ON BEHALF OF OTHERS, Appellant v. MARK KRUEGER, WERNER SUBLETTE, RON PHILLIPS AND CHARLES ZEMAN, Respondents, Case No. WD85173 (Mo. App.), the Court of Appeals of Missouri for the Western District affirms the Circuit Court of Adair County's judgment granting the Respondents' motion to dismiss. Laske, individually and on behalf of others similarly situated, appeals the Circuit Court of Adair County's judgment granting the motion to dismiss filed by the Respondents. On appeal, Laske argues the trial court erred in dismissing his petition because Laske's claims against Respondents are direct claims, not derivative claims, in that the alleged breach by Respondents harmed the shareholders only, not the corporation, and only the shareholders will be entitled to recover as damages the difference between the price Respondents negotiated for their stock and what was available in the market. As alleged in the petition, Laske was a shareholder of Bancorp and owned 263 shares of Bancorp stock, representing 3.16% of the issued shares. In fall of 2016, the Bancorp Board of Directors began exploring a sale of Bancorp. Connections Bancshares, Inc. was the first potential buyer and made an initial offer to purchase all issued stock of Bancorp for $963 per share. On Sept. 13, 2016, the Respondents organized a meeting of Bancorp's top shareholders at which Connections presented a Letter of Intent ("LOI") to purchase all the outstanding stock of Bancorp. The proposal presented two choices for the shareholders: the shareholders could sell their stock outright for a purchase price of $1,025 per share, or the shareholders could opt to buy into Connections stock by exchanging their Bancorp stock at $910 per share for a minimum of 1,200 shares of Connections stock at the price of $115 per share. The LOI also contained a "no shop" provision, which stated that "Sellers agree that it will not negotiate or discuss the sale of the Bank assets with another party until" a purchase agreement has been executed. Connections gave Bancorp shareholders until Oct. 7, 2016, to accept the terms of the LOI. Bancorp's shareholder agreement contains a "Drag-Along Option," which states that if shareholders owning 70% or more of the outstanding shares of stock agree to sell their stock to a third party or merge with or into another entity, those wishing to sell or merge can require all shareholders to participate in the transaction and forfeit their option rights. The Respondents moved forward with Connections' offer and arranged meetings with shareholders to argue in favor of the offer. In doing so, Respondents withheld information from shareholders, including information about other interested buyers and other potential offers. They were aware of at least three other banks interested in submitting higher bids to Bancorp, but none of the other potential buyers was allowed to conduct due diligence. On Nov. 18, 2016, after Connections' LOI had expired, one potential buyer, Alliant Bank, offered to purchase Bancorp for $8.75 million, or $1,050 per share. Alliant Bank later increased its offer to $9.25 million, or $1,109 per share. Bancorp received legal advice that a formal process to explore the other offers would be advisable after Connections' LOI had expired. Bancorp's president, Sam Berendzen, called a special meeting of shareholders on Nov. 28, 2016, and explained that Bancorp's attorney had suggested starting the process over to consider other potential buyers. Berendzen explained that the organization and initial process utilized in the potential sale of Bancorp was unsatisfactory and legally unsound. However, the Respondents pressed the Connections offer on the shareholders by urging them to ignore potential buyers and commit to only dealing with Connections. Although the majority of shareholders present at the meeting voted in favor of starting the process over to consider other offers, the minutes of the meeting reflect that 54% of the shares allegedly represented at the meeting voted to continue to negotiate exclusively with Connections. This vote count was accomplished by adding a "yes" vote from the largest shareholder who was not present at the meeting, but no other absent shareholders' votes were sought or added to the count. Bancorp then focused exclusively on Connections' offer and did not solicit any other offers after the Nov. 28, 2016, meeting. Respondents withheld information from the shareholders regarding the other proposals made to purchase Bancorp. Respondents also excluded from meetings the one director who objected to proceeding exclusively with Connections. On February 2, 2017, the Board announced that 70% of shareholders had signed a stock purchase agreement with Connections, and, pursuant to the "Drag-Along Option," all shareholders would be forced to accept Connections' terms. Respondents personally benefitted from the agreement with Connections, and several members of the Board secured positions on the Connections board of directors. The structure of the agreement allowed Respondents to benefit from the stock-exchange option, but many shareholders did not own enough stock to participate in the exchange option without adding additional funds. In the final agreement, Connections purchased Bancorp's stock for $1,050 per share. The last proposal from Alliant Bank offered to buy Bancorp's stock for $1,109 per share. Laske filed a class action petition on behalf of all Bancorp stockholders who sold their Bancorp stock to Connections. In the petition, Laske alleged Respondents breached their fiduciary duties of care and loyalty to act in the best interest of the shareholders by securing a transaction that offered the best value available to the shareholders, and Respondents breached their fiduciary duties through self-dealing by securing substantial compensation as members of the Connections board of directors. Laske alleged that he and the class were directly harmed by Respondents' actions. The Respondents filed a motion to dismiss, which was granted by the trial court, because Laske lacked standing to bring a direct action against them. The trial court held that Laske must bring a derivative action against Respondents on behalf of the corporation. The trial court issued an order granting the Respondents' motion to dismiss on Oct. 27, 2021, and issued its judgment on Jan. 31, 2022. Laske filed another civil action in the trial court asserting the same claims against the Respondents as a derivative action (Laske II) on Nov. 21, 2021. Laske voluntarily dismissed his petition in Laske II on Sept. 12, 2022. On appeal, Laske argues the trial court erred in granting the Respondents' motion to dismiss for lack of standing because Laske had standing to bring a direct suit against the Respondents because only the shareholders, not the corporation, were harmed by the Respondents' breaches of fiduciary duties. The Respondents filed a motion to dismiss Laske's appeal for lack of appellate jurisdiction. As an initial matter, the Court of Appeals must first determine whether it has jurisdiction to decide the merits of Laske's appeal. The Respondents argue that, although the trial court issued a judgment, it did not meet the requirements of a final judgment for purposes of appeal. The Court of Appeals disagrees. It opines that the trial court dismissed Laske's petition due to Laske's lack of standing to bring a direct claim on behalf of himself and the putative class and found that Laske's claim must be brought as a derivative claim on behalf the corporation instead. Although the trial court's judgment did not state that the petition was dismissed with prejudice, the dismissal has the practical effect of terminating the litigation in the form presented by Laske. That is, Laske individually would be barred from filing another direct claim against the Respondents. He filed Laske II as a derivative action against the Respondents, meaning that Laske was merely a nominal plaintiff suing the Respondents on behalf of the corporation. Laske's direct action against the Respondents on behalf of himself and the putative class, however, was terminated by the trial court's judgment dismissing the petition. Accordingly, the Court of Appeals has jurisdiction to determine the merits of the trial court's judgment. The Respondents' motion to dismiss for lack of appellate jurisdiction is denied. On appeal, Laske argues the trial court erred in dismissing his petition, which asserted direct claims against the Respondents on behalf of himself and all Bancorp stockholders who sold their Bancorp stock to Connections. The trial court found that Laske's petition alleged derivative rather than individual claims and thus dismissed the petition. The Court of Appeals agrees with the trial court. It holds that Bancorp as a corporation would necessarily be harmed by the diminished value of the stock owned by all its shareholders if the allegations in the petition are proven. Accordingly, the trial court did not err in granting the Respondents' motion to dismiss for failure to state a claim based on Laske's lack of standing to bring the allegations in the petition as a direct action. Hence, point denied. For the foregoing reasons, the Respondents' motion to dismiss for lack of appellate jurisdiction is denied, and the judgment of the trial court is affirmed. A full-text copy of the Court's Jan. 10, 2023 Opinion is available at https://tinyurl.com/sec8eae9 from Leagle.com. BARE PERFORMANCE: Scheibe Sues Over Misbranded Dietary Supplements ------------------------------------------------------------------ JACOB SCHEIBE, individually and on behalf of all those similarly situated v. BARE PERFORMANCE NUTRITION, LLC, a Texas limited liability company, Case No. 3:23-cv-00047-AJB-MDD (S.D. Cal., Jan. 11, 2023) alleges that "Intra Flight Branch-Chained Amino Acids" powder, a dietary supplement manufactured, packaged, labeled, advertised, distributed, and sold by the Defendant, is misbranded and falsely advertised. According to the complaint, these powders are marketed as supporting improved workout recovery and muscle protein synthesis; hydration levels; and increased blood flow and nutrient delivery. These dietary supplements come in three different flavors: watermelon, blackberry lime, and lemonade. However, the Products differ only in flavoring; the base formulation for each flavor is the same, and they are offered for sale for an identical price. The front label of all flavors of the Products state that the Products are "Naturally Flavored." These natural flavoring claims are false. The Products are flavored using an artificial flavoring, DL malic acid, that is derived from petrochemicals. The DL malic acid is not used as a sweetener, says the suit. The Defendant uses the petrochemical-derived DL malic acid in its Products to create, simulate, or reinforce the fruit flavors but pretends otherwise, conflating natural and artificial flavorings, misbranding the Products and deceiving consumers, the Plaintiff contends. Accordingly, the ingredients on the Products' label are declared in a way that is misleading and contrary to law, because the Defendant designates the ingredient by its generic name, "malic acid," instead of by its specific name, "DL malic acid," the suit alleges. Mr. Scheibe is a college student who has recently sought to lose weight and add muscle mass, and to do so has begun to eat with intentionality and take dietary supplements. Bare Performance formulates, manufactures, and sells the dietary supplement called Intra Flight Branch-Chained Amino Acids powder.[BN] The Plaintiff is represented by: Charles C. Weller, Esq. CHARLES C. WELLER, APC 11412 Corley Court San Diego, CA 92126 Telephone: (858) 414-7465 Facsimile: (858) 300-5137 E-mail: legal@cweller.com CENTENE MANAGEMENT: Mudahy Labor Suit Removed to C.D. Cal. ---------------------------------------------------------- The case styled NAJUAH MUDAHY, on behalf of herself and others similarly situated, Plaintiff v. CENTENE MANAGEMENT COMPANY, LLC; HEALTH NET, LLC; and DOES 1 to 100, inclusive, Defendants, Case No. 22STCV37387, was removed from the Superior Court of the State of California, County of Los Angeles, to the United States District Court, Central District of California on January 5, 2023. The Clerk of Court for the Central District of California assigned Case No. 2:23-cv-00055 to the proceeding. Plaintiff filed this class action complaint against Defendants on November 29, 2022, asserting causes of action pursuant to the California Labor Code for: (1) failure to pay wages for all hours worked at minimum wage; (2) failure to pay overtime wages for daily overtime worked; (3) failure to indemnify employees for employment-related losses/expenditures; (4) failure to timely pay earned wages during employment; (5) failure to provide complete and accurate wage statements; (6) failure to timely pay all earned wages and final paychecks due at time of separation of employment; and (7) unfair business practices, in violation of Business and Professions Code. Centene Management Company, LLC provides healthcare plans and services to its customers.[BN] The Defendants are represented by: Stacey F. Blank, Esq. LITTLER MENDELSON, P.C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067-3107 Telephone: (310) 553-0308 Facsimile: (310) 553-5583 E-mail: sblank@littler.com CERTIFIED CREDIT: Gibson Seeks to Stay Deadlines for Class Cert Bid ------------------------------------------------------------------- In the class action lawsuit captioned as BRITTNEY GIBSON, individually and as a representative of the Classes, v. CERTIFIED CREDIT REPORTING, INC., and CERTIFIED CREDIT REPORTING OF FLORIDA, INC., Case No. 8:22-cv-01014-CEH-MRM (M.D. Fla.), the Plaintiff asks the Court to enter an order staying the deadline for her to file her Motion for Class Certification. On June 23, 2022, the Court entered the Case Management and Scheduling Order, which set the deadline for both parties to disclose their expert reports on February 15, 2023. On November 4, 2022, the Plaintiff filed a motion to compel the Defendants to produce class member data necessary to progress in expert discovery and preparation of her class certification motion. The Plaintiff additionally moved the Court on November 4, 2022, to suspend the expert disclosure deadline in light of the lack of data produced by the Defendants, which the Court granted. Given that the Court has not yet ruled on the Motion to Compel, and Plaintiff continues to be without the class member data, Plaintiff does not have the information necessary to file a fulsome Motion for Class Certification in time for the February 15, 2023 deadline. The Defendants do not oppose the requested stay. All parties agree that the stay of the Motion for Class Certification deadline does not affect the dispositive motions deadline and trial date. Certified Credit provides mercantile and consumer credit reporting services. A copy of the Plaintiff's motion dated Jan. 12, 2022 is available from PacerMonitor.com at http://bit.ly/3ZDPC3Zat no extra charge.[CC] The Plaintiff is represented by: Joseph C. Hashmall, Esq. BERGER MONTAGUE PC 1229 Tyler Street NE, Suite 205 Minneapolis, MN 55413 Telephone: (612) 594-5999 Facsimile: (612) 584-4470 E-mail: jhashmall@bm.net - and - Philip R. Goldberg, Esq. Bryan J. Geiger, Esq. SERAPH LEGAL, P.A. 1614 N. 19th Street Tampa, FL 33605 Telephone: (813) 567-1230 Facsimile: (855) 500-0705 E-mail: pgoldberg@seraphlegal.com bgeiger@seraphlegal.com CERTIFIED TREE: Mrkvicka Sues Over Unpaid Overtime for Laborers --------------------------------------------------------------- BRADLEY MRKVICKA, individually and on behalf of all others similarly situated, Plaintiff v. CERTIFIED TREE CARE LLC, CERTIFIED TREE CARE GROUP LLC, CERTIFIED TREE CARE FORT WORTH LLC, and BRIAN HISEY, Defendants, Case No. 1:23-cv-00047 (W.D. Tex., January 13, 2023) is a class action against the Defendants for failure to compensate the Plaintiff and similarly situated manual laborers overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. The Plaintiff worked as a manual laborer for the Defendants from approximately July 2022 until approximately December 2022. Certified Tree Care LLC is a full-service tree care company based in Texas. Certified Tree Care Group LLC is a full-service tree care company based in Texas. Certified Tree Care Fort Worth LLC is a full-service tree care company based in Texas. [BN] The Plaintiff is represented by: Drew N. Herrmann, Esq. Pamela G. Herrmann, Esq. HERRMANN LAW, PLLC 801 Cherry St., Suite 2365 Fort Worth, TX 76102 Telephone: (817) 479-9229 Facsimile: (817) 840-5102 E-mail: drew@herrmannlaw.com pamela@herrmannlaw.com CHUBB INSURANCE: Faces Class Action Suit Over Consumer Fraud ------------------------------------------------------------ Andrew G. Simpson of Insurance Journal that Insurer Chubb is being accused of misleading consumers in the way it offers insurance premium discounts to homeowners as percentages without specifying the actual dollar amounts that insureds can save, and allegedly not applying all of the promised discounts. A California customer of Chubb has filed a proposed class action suit in federal court in New Jersey alleging violations of that state's consumer fraud act and unjust enrichment. Plaintiff Gilbert Purcell alleges that Chubb subsidiary Federal Insurance did not apply all of the promised discounts to the undiscounted $60,078 premium for his Chubb Masterpiece homeowners insurance policy renewal. Purcell claims he was told that the aggregate discounted price of the policy was $35,849 after receiving the various discounts. However, he maintains that had Chubb applied the discounts at the percentages promised, his renewal premium would have cost no more than $30,616, and possibly even less, as opposed to $35,849. Specifically, according to the complaint, the renewal offers listed discounts by the following percentage amounts, in addition to other discounts not associated with any percentage amount: -- 14% "for taking steps toward superior protection" -- 10% "because you also insure your automobile(s) with Chubb" -- 10% "since your owned residence has no mortgage or lien" -- 10% "for having a residential sprinkler system" -- 7.5% "because you also insure your valuable articles with Chubb" -- 7.5% "for being a long-time customer along with your loss history" and -- 5% "for personally paying your premium in full, in one initial payment, at least once in the past five years." According to the complaint, the renewal neither gave the dollar amounts by which each discount reduced the price nor gave any other indication how these percentage discounts were applied. Purcell says he sought clarification from Chubb through his insurance agent but "after repeated communications with Chubb, the agent did not know, and could not explain, the pricing and discount application." Purcell states he paid the $35,849 premium as presented on the advice of his agent in order to avoid a lapse in insurance coverage, while his agent continued to communicate with Chubb regarding the actual dollar value of the discounts. Purcell claims he expected to be refunded any overpayment but Chubb never provided any explanation or clarity. According to the court document, Purcell has insured his home with Chubb since 2011. The complaint alleges that the dealings were misleading in that either the undiscounted premium values Chubb offered were higher than they actually were, or Chubb promised discounts that it did not in fact apply to the undiscounted premiums, or both. "Such conduct constituted unlawful, unfair, and fraudulent business practices. These practices were likely to deceive a reasonable consumer," the complaint concludes, citing New Jersey's consumer fraud act. The complaint further criticizes Chubb for allegedly not providing a complete copy of the entire policy at renewal, sending only "a scattershot gathering of non-consecutively paginated documents." The suit does not name Purcell's insurance agent. The suit seeks class action status for other Chubb homeowners' insurance customers. It also seeks compensatory damages and a requirement that Chubb provide "full complete policies with all renewals, consecutively and comprehensively paginated, including a calculation of discounts applied, unless a customer opts out of such provision." [GN] CNC PRECISION: Faces Kurpan Wage-and-Hour Suit in N.D. Ohio ----------------------------------------------------------- PAUL KURPAN, individually and on behalf of all others similarly situated, Plaintiff v. CNC PRECISION MACHINE, INC., Defendant, Case No. 5:23-cv-00070-JRA (N.D. Ohio, January 13, 2023) is a class action against the Defendant for unpaid overtime wages and untimely payment of wages in violation of the Fair Labor Standards Act of 1938 and Ohio Law, Civil Violations for Criminal Acts, and unjust enrichment. Mr. Kurpan was employed by the Defendant as an hourly machine operator from approximately November 2020 to October 2022. CNC Precision Machine, Inc. is a fully integrated hydraulic fittings manufacturer doing business in Ohio. [BN] The Plaintiff is represented by: Joseph F. Scott, Esq. Ryan A. Winters, Esq. SCOTT & WINTERS LAW FIRM, LLC Telephone: (216) 912-2221 Facsimile: (440) 846-1625 50 Public Square, Suite 1900 Cleveland, OH 44113 E-mail: jscott@ohiowagelawyers.com rwinters@ohiowagelawyers.com - and - Kevin M. McDermott II, Esq. SCOTT & WINTERS LAW FIRM, LLC 11925 Pearl Rd., Suite 310 Strongsville, OH 44136 Telephone: (216) 912-2221 Facsimile: (440) 846-1625 E-mail: kmcdermott@ohiowagelawyers.com CONNECTED INVESTORS: Class Action Settlement Gets Initial Nod ------------------------------------------------------------- In the class action lawsuit captioned as JO ANNE SILVA, Individually and on behalf of all others similarly situated, v. CONNECTED INVESTORS, INC., Case No. 7:21-cv-00074-D (E.D.N.C.), the Hon. Judge James C. Dever III entered an order preliminarily approving class action settlement and certifying the settlement class as follows: Event Date Timeline Deadline for Completion 45 days after of Notice entry of the Preliminary Approval Order Deadline for filing 80 days after Motion for Final Approval entry of the of the Settlement Class Preliminary Counsel's Fee Application Approval Order and expenses, and for a Service Award Deadline for opting-out 30 days before of the Settlement and for the Final submission of Objections Approval Hearing Deadline for Responses to 15 days before Objections the Final Approval Hearing Final Approval Hearing Jun. 2, 2023 Last day Class Claimants may 15 days after submit a Claim the Final Approval Hearing The Court finds, for settlement purposes, that the Federal Rule of Civil Procedure factors are present and that certification of the proposed Settlement Class is appropriate under Rule 23. The Court provisionally certifies the following Settlement Class: "All persons within the United States who (1) were sent one or more prerecorded voice messages; (2) between April 28, 2017 and S_eptember 26, 2022; (3) regarding Defendant's goods and/or services." Excluded from the Settlement Class are: (1) anyone who only received non-telemarketing-messages that they agreed to receive or were otherwise permissible under the law; (2) the trial judge and magistrate judge presiding over this case; (3) Defendant, as well as any parent, subsidiary, affiliate, and the officers, directors, agents, members, managers, servants, or employees of Defendant; ( 4) any of the Released Parties; (5) the immediate family of any such person(s); and (6) Plaintiffs Counsel, their employees, and their immediate family. The Court appoints Plaintiff, Jo Anne Silva, as Class Representative. The Court appoints the following people and firms as Class Counsel: Manuel S. Hiraldo of Hiraldo P.A; Ignacio J. Hiraldo ofIJH Law; and Michael Eisenband ofEisenband Law, P.A. The Court recognizes that Defendant reserves all of its defenses and objections against and rights to oppose any request for class certification in the event that the proposed Settlement does not become Final for any reason. The Defendant also reserves its defenses to the merits of the claims asserted in the event the Settlement does not become Final for any reason. Connected Investors provides real estate investors with free access to off-market deals and funding. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3IS4nKM at no extra charge.[CC] DEVEREUX FOUNDATION: Court Denies Bid to Dismiss Title IX Claim --------------------------------------------------------------- In the class action lawsuit captioned as RICHARD ROE W.M., et al., v. THE DEVEREUX FOUNDATION (d/b/a DEVEREUX ADVANCED BEHAVIORAL HEALTH), et al., Case No. (E.D. Pa.), the Hon. Judge Anita B. Brody entered an order denying the Devereux's motion to dismiss the plaintiffs' Title IX claim (Count XI of the FAC) because plaintiffs impermissibly seek emotional distress and punitive damages. Devereux argues that "Plaintiffs cannot plausibly allege a right to relief that is legally unavailable, so they fail to state a claim under Title IX." Because referencing the wrong remedy is not grounds for dismissal of an entire claim, the motion will be denied. Finally, Devereux moves to dismiss or strike plaintiffs' Rule 23(b)(2) class claims from the FAC. While Rule 23 is "is silent about" when courts should dispose of class claims, Devereux argues that striking these claims now "is in keeping with the Rule's practical, case-specific approach to resolution of class status." Because this motion is premature, it will be denied, the Court says. This court declines to stray from the general practice in this circuit based on a few short pages of briefing, particularly when the parties vigorously dispute the validity of plaintiffs' class claims. Devereux operates residential facilities for children with psychiatric, behavioral, developmental, or intellectual disabilities. For decades, Devereux has allegedly failed to protect the children in its care, instead subjecting them to an environment rife with sexual and physical abuse at the hands of staff and residents. The Plaintiffs, three current or former residents of Devereux facilities, seek damages and injunctive relief on behalf of themselves and a putative class of Devereux patients. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3kj9g5h at no extra charge.[CC] DOLLAR GENERAL: Husar Suit Removed From to E.D. Ky. --------------------------------------------------- The case styled NORMAN HUSAR, individually and on behalf of all others similarly situated, Plaintiff v. DOLLAR GENERAL CORPORATION and DOLGENCORP, LLP, Defendants, Case No. 22-CI-01419, was removed from the Circuit Court of Boone County, Kentucky, to the United States District Court for the Eastern District of Kentucky, Northern Division at Covington, on January 5, 2023. The Clerk of Court for the Eastern District of Kentucky assigned Case No. 2:23-cv-00002-DLB-CJS to the proceeding. The Plaintiff alleges he was charged "a higher price at the register than the price of merchandise advertised on the shelves" at Dollar General stores in Kentucky. He brought an individual and putative class's Kentucky's Consumer Protection Act claim, a putative class unjust enrichment claim, and he references the Ohio Consumer Protection Act. Among other things, the Plaintiff seeks, on behalf of himself and the putative class, actual damages, statutory damages, statutory non-economic damages, punitive damages, and reasonable attorneys' fees and costs. Dollar General Corporation is an American chain of variety stores headquartered in Goodlettsville, Tennessee.[BN] The Defendants are represented by: Kimberly E. Ramundo, Esq. THOMPSON HINE LLP 312 Walnut Street, Suite 2000 Cincinnati, OH 45202 Telephone: (513) 352-6656 Facsimile: (513) 241-4771 E-mail: Kim.Ramundo@ThompsonHine.com DRAFTKINGS INC: Judge Dismissed Putative Securities Class Action ---------------------------------------------------------------- Meghan Newcomer of Steptoe & Johnson reports that Judge Engelmayer dismissed with prejudice a putative securities class action filed against DraftKings, Inc., and denied Plaintiffs' leave to replead. Plaintiffs' Second Amended Complaint alleged that a company that DraftKings had acquired in the course of going public, SBTech (Global) Limited ("SBTech"), had secretly operated in "black-market" jurisdictions, thereby exposing DraftKings to regulatory and criminal risks. It further alleged that DraftKings made materially false and misleading statements about, and failed to disclose, SBTech's violations of foreign law and their potential consequences. Plaintiffs argued that DraftKings's shares traded at artificially inflated prices until June 15, 2021, when a short seller, Hindenburg Research published a report that revealed SBTech's ostensible operations in black market jurisdictions and the risks to which the merger with SBTech allegedly exposed DraftKings. That day, DraftKings's shares fell 4.17%. In dismissing the Second Amended Complaint, the Court focused on Plaintiffs' reliance on the Hindenburg report without having verified the information contained in the report: The SAC's claims as to SBTech's business practices are virtually entirely based on the Hindenburg Report, which in turn was largely based on unsourced or anonymously sourced allegations. The SAC's threadbare sourcing and the conclusory quality of these factual allegations and attributions are ultimately fatal to all of its Sub-section 10(b) or Sub-section 20(a) claims, whether based on DraftKings's statements about its compliance with law or its failure to disclose SBTech's ostensible black-market activity and revenues. Judge Engelmayer found that the Hindenberg report had "two features that are problematic in compounding ways." First, the report was authored by a short seller who had an economic interest in driving down the stock's price. Judge Engelmayer cited cases holding that adverse factual allegations from short sellers "must be considered with caution." Second, the report was based on unidentified and unspecified sources. Judge Engelmayer noted that while a confidential source need not be identified to have statements credited on a motion to dismiss, "such a source must be 'described in the complaint with sufficient particularity to support the probability that a person in the position occupied by the source would possess the information alleged.'" (citing Emps.' Ret. Sys. of Gov't of the V.I. v. Blanford, 794 F.3d 297, 305 (2d Cir. 2015)). Judge Engelmayer noted that where independent facts corroborate anonymous sources, courts will sustain complaints. He contrasted that with what Plaintiffs had put forward in their Second Amended Complaint. But when plaintiffs' counsel has not interacted with the unidentified source-and does not even know the source's name, position, or other attributes tending to bear on the source's credibility-and instead extracted and pled as true statements from a report by a short seller attributing adverse facts to unidentified persons, these aspects of the complaint, if not corroborated, are fairly discounted or put aside altogether as ill-pled. Other SDNY judges have expressed similar wariness about relying on unknown or confidential sources as the basis for complaints.[GN] DRAFTKINGS INC: S.D. New York Tosses Stockholders' 2nd Amended Suit ------------------------------------------------------------------- In the case, IN RE DRAFTKINGS INC. SECURITIES LITIGATION. This Document Relates to All Actions, Case No. 21 Civ. 5739 (PAE) (S.D.N.Y.), Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York grants the Defendants' motion to dismiss the Plaintiffs' Second Amended Complaint and dismisses the SAC with prejudice. The decision resolves a motion to dismiss a putative securities class action brought against the fantasy sports, sports entertainment, and sports betting company DraftKings, formerly known as Diamond Eagle Acquisition Corp., and affiliated persons. The putative class consists of purchasers of DraftKings securities between Dec. 23, 2019, and June 15, 2021, inclusive. DraftKings is a U.S.-based digital sports entertainment and gaming company incorporated in Nevada. Through its business-to-consumer ("B2C") segment, DraftKings provides users with daily sports, sports betting, and iGaming opportunities. Through its business-to-business ("B2B") segment, DraftKings designs, develops, and licenses its sports-betting and casino-gaming platform software for online and retail sportsbook and casino gaming products. It distributes its offerings through websites, direct app downloads, and direct-to-consumer digital platforms. Id. DraftKings's common stock trades on the NASDAQ under the ticker symbol "DKNG." The Plaintiffs' SAC centrally alleges that a company that DraftKings had acquired in the course of going public, SBTech (Global) Limited ("SBTech"), had secretly operated in "black-market" jurisdictions -- that is, ones in which gambling was illegal. The SAC alleges that SBTech's having done so, and its continuing practice of doing so, exposed DraftKings to regulatory and criminal risks and made some of its revenue the fruit of illegal conduct. It alleges that DraftKings made materially false and misleading statements about, and failed to disclose, SBTech's violations of foreign law and their potential consequences. As a result, the SAC argues, DraftKings's shares traded at artificially inflated prices until June 15, 2021, when a short seller, Hindenburg Research, published a report that revealed SBTech's ostensible operations in black-market jurisdictions and the risks to which the merger with SBTech allegedly exposed DraftKings. That day -- the final day of the class period -- DraftKings's shares fell 4.17%. The SAC brings claims under Section 10(b) of the Securities Exchange Act of 1934, codified at 15 U.S.C. Section 78j(b), and Rule 10b-5 promulgated thereunder, as to all Defendants, and violations of Section 20(a) of the Exchange Act, codified at 15 U.S.C. Section 78t(a), as to the Individual Defendants. Pending now is the Defendants' motion to dismiss the SAC for failure to state a claim under Federal Rules of Civil Procedure 12(b)(6) and 9(b), and the Private Securities Litigation Reform Act (the "PSLRA"), 15 U.S.C. Section 78u-4(b). Judge Engelmayer explains that the SAC's claims -- whether brought under Section 10(b) against DraftKings, or under Section 20(a) against the individual defendants, and whether sounding in materially false representations of fact or in omissions of fact necessary to make the company's statements non-misleading -- turn on a single factual proposition: that SBTech operated in black-market gambling jurisdictions and derived revenue from illegal gambling in such venues. On the premise that SBTech did so (and did not disclose it), the SAC centrally alleges that DraftKings's representations about SBTech's business practices and their legality were false and misleading. The market, it alleges, was thus deceived about DraftKings's lack of exposure to adverse regulatory or criminal action. As a result, it alleges, when the Hindenburg Report in June 2021 reported SBTech's ostensible black-market business activity, DraftKings's stock price dropped, damaging persons who had bought stock during the preceding 18 months and continued to hold it. In moving to dismiss, the Defendants dispute that the SAC plausibly pleads an actionable statement or omission to this effect. They also argue that the SAC does not plausibly plead scienter or loss causation. And, because the SAC fails to plead a primary Section 10(b) violation, defendants argue, its claims based on Section 20(a) necessarily fail as well. Judge Engelmayer analyzes each of the SAC's claims of material misstatements or omissions by DraftKings regarding SBTech's business practices. The actionable statements, the SAC alleges, included representations to the effect that SBTech was in compliance with the gaming laws of six "black market" foreign countries (Malaysia, Vietnam, Indonesia, Thailand, Iran, and China), with United States sanctions regimes, and with various anti-corruption and anti-money-laundering laws and nondisclosures relating to the same; the SAC alleges that these misstatements and omissions were made with scienter. In fact, the SAC claims, contrary to statements made in the BCA, the Proxy Statement, other public filings, and press releases, SBTech -- itself and through CoreTech, as an "undisclosed subsidiary" or "front" company -- had secretly operated in those jurisdictions before and during the class period. However, at the threshold, Judge Engelmayer finds that it is important to note a global deficiency spanning the SAC's theories of fraud. He says the SAC's claims as to SBTech's business practices are virtually entirely based on the Hindenburg Report, which in turn was largely based on unsourced or anonymously sourced allegations. The SAC's threadbare sourcing and the conclusory quality of these factual allegations and attributions are ultimately fatal to all of its Section 10(b) or Section 20(a) claims, whether based on DraftKings's statements about its compliance with law or its failure to disclose SBTech's ostensible black-market activity and revenues. In the case, Judge Engelmayer finds that the source on which the SAC essentially entirely relies to satisfy these pleading obligations has two features that are problematic, in compounding ways. First, the Hindenburg Report is a report by short seller. Second, the Hindenburg Report, rather than being based on identifiable and/or verifiable sources, is based on "confidential" -- that is, unidentified and unspecified -- sources. These attributions contain all the methodological shortcomings identified by the case law. They suffer from all the indicia of unreliability that have led courts often not to credit attributions to unnamed sources in short-seller reports. The SAC's central factual premise is thus subject to an overarching methodological deficiency. That frames Judge Engelmayer's assessment of each of the categories of allegedly actionable statements and omissions cited by the SAC. First, as to statements relating to compliance, Judge Engelmayer finds that the SAC does not plausibly allege an actionable misstatement or omission by DraftKings concerning SBTech's or its affiliates' compliance with the laws of China -- or of any of the other five jurisdictions -- Malaysia, Vietnam, Indonesia, Thailand, and Iran. Second, as to statements relating to compliance with sanctions, Judge Engelmayer finds that the SAC contains only vague allegations about the applicable sanctions regime. It states that Iran has regularly been subject to U.S. sanctions, subject to the sanctions program of the United States, and is a market subject to heavy U.S. sanctions. It does not, however, plead who the sublicensee was that accepted wagers in Iran in 2018; what sanctions, if any, were applicable to the relevant transaction with respect to the sub-licensee or SBTech; or how the transaction violated those sanctions. Third, as to statements relating to compliance with anti-corruption and anti-money laundering laws, Judge Engelmayer finds that the allegations, like those relating to Iranian sanctions, are conclusory and general. The SAC does not specify what law SBTech or its subsidiaries violated, which entity did so, how that entity did so, or in what jurisdiction. And because the premise of the SAC's allegation of this category of false statements is that there was an underlying violation of an ABC or AML law that DraftKings denies or concealed, these claims therefore are fatally deficient. Fourth, as to the claim that DraftKings actionably failed to disclose its alleged black-market operations or its revenue from the same, and that this made other of its statements materially misleading, Judge Engelmayer opines that (i) the SAC does not plead an actionable material omission; and (ii) the SAC's claim -- whether cast as alleging a material omission, a misleading statement, or half-truth -- that DraftKings failed to disclose its revenue from black-market jurisdictions does not state a Section 10(b) claim. Fifth, regarding scienter, Judge Engelmayer finds that (i) viewed in context, the Individual Defendants' sales do not present as suspicious so as to support inferring scienter; and (ii) on the SAC's spare allegations, the timing and circumstances of the 15 transactions themselves were not suspicious. The SAC therefore fails to state a claim for the independent reason that it fails to plead facts giving rise to a strong inference of scienter. Sixth, with respect to loss of causation, Judge Engelmayer says in light of its holdings that the SAC fails to adequately allege either (1) an actionable misstatement or omission or (2) scienter, the Court does not have occasion to reach defendants' alternative argument that the SAC inadequately pleads loss causation. Seventh, regarding the claim that DraftKings violated Section 10(b) by failing to disclose the impact and/or potential liabilities associated with SBTech's operations in black markets for gambling as, the SAC claims, Items 105, 17 C.F.R. Section 229.105, and 303, id. Section 229.303, of SEC Regulation S-K independently required, Judge Engelmayer finds that the SAC does not plead the requisite state of mind: that DraftKings knew of a material risk or uncertainty presented by SBTech's purported black-market operations. Eighth, as to Section 20 claims, Judge Engelmayer opines that because the SAC has not so pled, its Section 20(a) claims necessarily must also be dismissed. Finally, the Plaintiffs seek, in the event of dismissal, leave to file another amended complaint under Federal Rule of Civil Procedure 15(a). Judge Engelmayer denies such leave. He says for the reasons reviewed in his decision, the deficiencies of the SAC's claims are substantive. And in light of the Plaintiffs' multiple opportunities to amend, and the fact that their counsel purports to have investigated the allegations in the Hindenburg Report on which the SAC relies, further amendment would be futile. For the foregoing reasons, Judge Engelmayer grants the Defendants' motion to dismiss, pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6), and the PSLRA. The dismissal is with prejudice. The Clerk of the Court is respectfully directed to terminate all pending motions and to close the case. A full-text copy of the Court's Jan. 10, 2023 Opinion & Order is available at https://tinyurl.com/mr23zm2x from Leagle.com. DRIVER PROVIDER: Wins Bid for Judgment on Pleadings --------------------------------------------------- In the class action lawsuit captioned as Kelli Salazar, et al., v. Driver Provider Phoenix LLC, et al., Case No. 2:19-cv-05760-SMB (D. Ariz.), the Hon. Judge Susan M. Brnovich entered an order: 1. granting the Defendants' motion for judgment on the Pleadings ("MJP"); 2. granting the Plaintiffs Leave to Amend their Fourth Amended Complaint (Doc. 114) Count II, Violation of the Arizona Minimum Wage Act (AWA) within 14 days of the Order. 3. upon Plaintiffs filing a Fifth Amended Complaint, allowing the Defendants seven days to notify the Court if they believe Plaintiffs to state a straight time claim under Arizona law. The Court said, "The Plaintiffs seek to apply the more generous state law remedies to an Fair Labor Standards Act (FLSA) claim and circumvent the opt-in collective action system. That is not allowed. Seeing as Plaintiffs' AWA claim 11 merely seeks state remedies for alleged FLSA overtime violations, the Court finds that allowing the claim to proceed would directly conflict with Congress's enactment of remedies under the FLSA for overtime violations." The Court finds Weeks unpersuasive as it dealt with an Oregon state law claim for overtime that differs from Arizona law. Unlike the AWA which provides no private right of action for overtime payments, Oregon law specifically provides for the payment of overtime at "one and one-half times the employee's regular rate of pay for each overtime hour or portion of an hour the employee works." The Defendants filed the MJP on Count II of Plaintiffs' Fourth Amended Class Action and Collective Action Complaint, which alleges a failure to pay overtime in violation of the AWA. (The Defendants argue that the Plaintiffs' AWA claim is preempted by the FLSA as set forth in Count I of the Complaint. Driver Provider is an independent full service transportation company. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3J7PjZF at no extra charge.[CC] DYNAMIC MANUFACTURING: Bamberg Sues Over Biometric Data Retention ----------------------------------------------------------------- DAVID BAMBERG, individually and on behalf of all others similarly situated, Plaintiff v. DYNAMIC MANUFACTURING, INC., Defendant, Case No. 2023LA000015 (Ill. Cir., 18th Judicial, Dupage Cty., Jan. 6, 2023) is a class action for damages and other legal and equitable remedies resulting from the illegal actions of Defendant in collecting, storing and using Plaintiff and other similarly situated individuals' biometric identifiers and biometric information without obtaining informed written consent or providing the requisite data retention and destruction policies, in direct violation of Biometric Information Privacy Act. The Plaintiff was employed by Defendant in Hillside from May 2017 through March 2019, and used his fingerprints to "clock in" to work throughout his tenure of employment with Defendant. If Defendant's database of digitized fingerprints were to fall into the wrong hands, by data breach or otherwise, the employees to whom these sensitive and immutable biometric identifiers belong could have their identities stolen, among other serious issues, says the suit. Further, the Defendant never informed Plaintiff and other Illinois employees who had their fingerprints collected of the specific purpose and length of time for which their biometric identifiers or information would be collected, stored and used, nor did Defendant obtain a written release from these individuals, notes the complaint. Dynamic Manufacturing, Inc. owns and operates several warehouses and distribution centers throughout Illinois.[BN] The Plaintiff is represented by: Carl V. Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 111 W. Jackson Blvd., Suite 1700 Chicago, IL 60604 Telephone: (312) 984-0000 Facsimile: (212) 686-0114 E-mail: malmstrom@whafh.com - and - Joseph I. Marchese, Esq. Philip L. Fraietta, Esq. Max S. Roberts, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: jmarchese@bursor.com pfraietta@bursor.com EDGEBANDING SERVICES: Arevalo Sues Over Unlawful Labor Practices ---------------------------------------------------------------- JOSEPH AREVALO, an individual and on behalf of aggrieved employees, Plaintiff v. EDGEBANDING SERVICES, INC., a California corporation, MARTIN RAMIREZ, an individual; and DOES 1 through 20, inclusive, Defendants, Case No. 23STCV00269 (Cal. Super., Los Angeles Cty., January 5, 2023) is a class action against the Defendants for alleged unlawful labor policies and practices in violation of the Fair Labor Standards Act, the California Business & Professions Code, the California Family Rights Act, and the Fair Employment and Housing Act. The complaint is brought by the Plaintiff, on behalf of himself and other aggrieved employees, due to the Defendants' failure to pay minimum wages; failure to furnish wage and hour statements; failure to maintain payroll records; failure to provide meal and rest period compensation; failure to pay overtime compensation; failure to pay wages in a timely manner; waiting time penalties; wrongful termination in violation of Public Policy; retaliatory conduct; interference with, restraint, and denial of medical leave; hostile work environment; violations based upon sex discrimination; and civil penalties. The Plaintiff began working for Defendants on December 22, 2018. He was initially hired as an order picker and was compensated at a rate of approximately $13 per hour. He performed exceptionally and received positive reviews from his superiors. As a result, Plaintiff was promoted several times, eventually achieving the job title of manager with a rate of pay of $22 per hour. Edgebanding Services, Inc. is a distributor of products to the cabinetry, furniture, and countertop industries.[BN] The Plaintiff is represented by: Jonathan P. LaCour, Esq. Lisa Noveck, Esq. Jameson Evans, Esq. Amanda M. Thompson, Esq. EMPLOYEES FIRST LABOR LAW P.C. 1 S. Fair Oaks Ave. Suite 200 Pasadena, CA 91105 Telephone: (310) 853-3461 Facsimile: (949) 743-5442 E-mail: jonathanl@pierrelacour.com lisan@pierrelacour.com jamesone@pierrelacour.com amandat@pierrelacour.com ELECTRONIC INTERFACE: Fails to Pay Proper Wages, Arbelaez Claims ---------------------------------------------------------------- HANS ARBELAEZ, individually and on behalf of all persons similarly situated, Plaintiff v. ELECTRONIC INTERFACE ASSOCIATES, INC., EIA ELECTRIC, INC., EIA ELECTRICAL CORP., EIA DATACOM, INC., YOLANDA DELPRADO, MATTHEW ORENT, ANDREEA ORENT, and JOHN DOE BONDING COMPANIES 1-20, Defendants, Case No. 1:23-cv-00069 (S.D.N.Y., Jan. 5, 2023) is a class action against the Defendants seeking all available relief under the Fair Labor Standards Act, the New York Labor Law, and the common law of contracts. According to the complaint, the Plaintiff and other similarly situated employees of EIA have not been appropriated compensation in a variety of respects. As of approximately December 6, 2022, EIA has terminated Plaintiff and Class Members and has ceased construction operations. The Defendants allegedly violated the federal and state laws by failing to pay minimum and overtime wages; failing to timely pay Plaintiff and other class members for work they performed since bi-week November 9 to 22, 2022; failing to provide written wage notices; and failing to pay vacation and personal time at termination. The Plaintiff was employed by Defendants as a foreman electrician from approximately May 2018 to approximately December 2022. Electronic Interface Associates, Inc. is an electrical installation service in New York City.[BN] The Plaintiff is represented by: James E. Goodley, Esq. Ryan P. McCarthy, Esq. GOODLEY MCCARTHY 1650 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 394-0541 E-mail: james@gmlaborlaw.com ryan@gmlaborlaw.com FIRST SOLAR: Arizona Court Allows Pontiac GERS to Amend Complaint ----------------------------------------------------------------- In the case, City of Pontiac General Employees Retirement System, et al., Plaintiffs v. First Solar Incorporated, et al., Defendants, Case No. CV-22-00036-PHX-MTL (D. Ariz.), Judge Michael T. Liburdi of the U.S. District Court for the District of Arizona grants the Defendants' Motion to Dismiss Plaintiffs' Amended Complaint and dismisses the Plaintiffs' Amended Complaint with leave to amend. The matter is before the Court on Defendants First Solar, Mark Widmar, Alexander R. Bradley, and Georges Antoun's Motion to Dismiss Plaintiff's Amended Complaint. Lead Plaintiffs Palm Harbor Special Fire Control & Rescue District Firefighters' Pension Plan and Greater Pennsylvania Carpenters' Pension Fund (collectively "Plaintiffs") have filed a response in opposition), and the Defendants have filed a reply. Judge Liburdi held oral argument on the Motion. The Plaintiffs bring the putative class action for violations of federal securities laws on behalf of themselves and a putative class of all persons and entities who purchased or otherwise acquired First Solar's common stock between Feb. 22, 2019 and Feb. 20, 2020. The Plaintiffs are two pension funds that purchased or otherwise acquired First Solar common stock at allegedly artificially inflated prices during the Class Period. First Solar is a publicly traded Delaware corporation headquartered in Tempe, Arizona that manufactures and sells solar module and photovoltaic ("PV") solar power systems for commercial and residential applications. Its common stock trades on the Nasdaq under the ticker symbol "FSLR." The Individual Defendants all serve managerial roles for First Solar. Widmar has served as First Solar's CEO since July 2016. Bradley has served as the company's CFO since October 2016. And Antoun has served as First Solar's Chief Commercial Officer since July of 2016. The Plaintiffs' allegations of fraud concern two of First Solar's business segments: (1) the PV solar power Modules Segment and (2) the PV solar power Systems Segment. During the Class Period, First Solar was the world's largest manufacturer of thin-film solar PV modules. The Modules Segment was tasked with manufacturing these solar panels and First Solar primarily sold these modules to integrators and operators of PV solar power systems. Before the start of the Class Period, First Solar's Modules Segment primarily manufactured and sold its Series 4 solar module. The Series 4 replacement was announced at the end of 2016 when First Solar declared that it would be transitioning to its new solar module, the Series 6. This new Series 6 solar module was to be larger and more powerful than the outgoing Series 4. First Solar measured the cost efficiencies and power output of its solar modules using various metrics, including cost per watt ("CpW"), the cost incurred in producing one watt of power, and watts per module, the amount of power a module produces expressed in wattage. Its Systems Segment provided customers with turn-key PV solar power systems and included project development, engineering, procurement, construction, operations, and maintenance as part of its service offerings. Contained within the Systems Segment, First Solar's project development business would receive rights to construct and operate PV solar power systems for customers. On Jan. 15, 2020, based on data from the Bloomberg New Energy Finance database, Barclays published a report indicating that First Solar's Systems Segment had "lost 80%+ of its U.S. market share." Barclays observed that while First Solar once captured "20% of the market," it now only represented "4% of the pipeline" of U.S. solar projects. Following the publication of Barclays' report, First Solar's stock declined approximately 7% from a close of $58.78 per share on Jan. 14, 2020, to a closing price of $54.75 per share on Jan. 15, 2020. Thereafter, on Feb. 20, 2020, during the company's Q4 earnings call, First Solar announced that it was exploring a sale of its project development business. On that same call, it announced that it was experiencing challenges with regard to certain aspects of the overall cost per watt, that it would not realize its fleet-wide CpW targets, and that its Series 6 solar module was falling short of its watt per module power targets. Following this announcement, First Solar's common stock declined from a close of $59.32 per share on Feb. 20, 2020, to a close of $50.59 per share on Feb. 21, 2020. The Plaintiffs brought the action alleging that the Defendants made misrepresentations and omissions relating to First Solar's Modules Segment and Systems Segment in violation of Section 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b), 78t(a), and SEC Rule 10b-5, 17 C.F.R. Section 240.10b-5, promulgated thereunder. The Defendants have moved to dismiss the Amended Complaint with prejudice pursuant to Fed. R. Civ. P. 9(b) and 12(b)(6) and the Private Securities Litigation Reform Act of 1995, 15 U.S.C. Section 78u et seq. ("PSLRA"). Initially, the Plaintiffs allege that the truth of the Defendants' supposed fraud was revealed to the market through two corrective disclosures. First, they allege that the Jan. 15, 2020 Barclays report revealed the alleged Systems Segment fraud. Second, they assert that First Solar's February 2020 earnings call revealed the truth about the company's Modules Segment and further revealed the truth that First Solar was exploring a sale of its project development business. Judge Liburdi finds that neither of these disclosures are corrective for purposes of the loss causation inquiry. He says the Barclays report does not relate back to any alleged misrepresentation regarding First Solar's Systems Segment. The Amended Complaint also provides no connection between the disclosure that the project business suffered negative impact caused by competition and any alleged misstatement or omission. As a result, the Amended Complaint fails to adequately plead loss causation related to the February 2020 earnings call. Next, the Plaintiffs argue that the Amended Complaint adequately alleges scienter. First, they argue that the Defendants' knowledge of or access to contrary information establishes scienter. They then argue that the Series 6 and the project development business were First Solar's core operations. Finally, the Plaintiffs claim that the Defendants were financially motivated to misrepresent and conceal material information from investors. Judge Liburdi finds that the Plaintiffs' Amended Complaint does not pass muster under the PSLRA. He says the allegations fail to meet the heightened pleading standards governing securities fraud suits. Moreover, the Plaintiffs fail to provide witness accounts demonstrating that the Individual Defendants had actual involvement in creating false reports. They also make no particularized allegations describing the bonuses awarded to any of the Individual Defendants during the Class Period or comparing the bonuses to those awarded in prior years. Lastly, the Amended Complaint does not provide sufficient detail regarding previous stock transactions for the Court to analyze whether the trades were dramatically out of line with prior trading practices. Judge Liburdi further finds that the Plaintiffs failed to adequately plead a primary violation of section 10(b). Therefore, the section 20(a) control person claim necessarily fails. Finally, the Plaintiff's response to the Motion to Dismiss does not request leave to amend. Upon the Court's inquiry at oral argument, however, the Plaintiff's counsel requested leave to amend in the event the Court grants the Motion. First Solar opposes the request and argues that the Court should dismiss the case with prejudice. Judge Liburdi holds that it is not clear to the Court that any further amendment to the Plaintiffs' Amended Complaint would be futile. And, at oral argument, the Plaintiffs' counsel suggested that they could provide more detailed complaint allegations. The Plaintiffs will be granted leave to file a Second Amended Complaint. Based on the foregoing, Judge Liburdi concludes that the allegations in the Plaintiffs' Amended Complaint, taken together, fall short of adequately alleging a violation of section 10(b) of the Securities Exchange Act and Rule 10b-5 promulgated thereunder. The Amended Complaint fails to meet the PSLRA's exacting standards and requirements for pleading loss causation and scienter. As a result, the Amended Complaint must be dismissed. Accordingly, he grants the Defendants' Motion to Dismiss and dismisses the Plaintiffs' Amended Complaint with leave to amend. The Plaintiffs may file a Second Amended Complaint by Feb. 10, 2023. A full-text copy of the Court's Jan. 10, 2023 Order is available at https://tinyurl.com/3zk8xhcy from Leagle.com. FLYNN RESTAURANT: Bailey Sues Over Drivers' Unreimbursed Expenses ----------------------------------------------------------------- JEREMY BAILEY, individually and on behalf of all others similarly situated, Plaintiff v. FLYNN RESTAURANT GROUP, LP, d/b/a "Pizza Hut," Defendant, Case No. 1:23-cv-00003-HSO-BWR (S.D. Miss., January 5, 2023) is a collective action under the Fair Labor Standards Act arising from the Defendant's flawed reimbursement policy resulting in failure to pay the federal minimum wage to Plaintiff and similarly situated delivery drivers. According to the complaint, instead of reimbursing delivery drivers for the reasonably approximate costs of the business use of their vehicles, Defendant uses a flawed method to determine reimbursement rates that provides such an unreasonably low rate beneath any reasonable approximation of the expenses they incur that the drivers' unreimbursed expenses cause their wages to fall below the federal minimum wage during some or all workweeks. The Plaintiff was employed by Defendant from approximately March 2018 to March 2020 as a delivery driver at a Pizza Hut store located in Gautier, Mississippi. Flynn Restaurant Group, LP owns and operates numerous Pizza Hut franchise stores.[BN] The Plaintiff is represented by: Allen R. Vaught, Esq. VAUGHT FIRM, LLC 1910 Pacific Avenue, Suite 9150 Dallas, TX 75201 Telephone: (972) 707-7816 Facsimile: (972) 591-4564 E-mail: allen@vaughtfirm.com FOWLER PACKING: Class Action Settlement Gets Prelim Approval ------------------------------------------------------------ In the class action lawsuit captioned as BEATRIZ ALDAPA, et al., v. FOWLER PACKING CO., INC., et al., Case No. 1:15-cv-00420-ADA-SAB (E.D. Cal.), the Hon. Judge entered an order granting the plaintiffs' unopposed motion for preliminary approval of class action settlement. The proposed settlement detailed in this order is approved on a preliminary basis as fair and adequate and the product of serious, informed, and arms-length negotiations between the parties. The Settlement Administrator shall mail the notice of class action settlement to all class members no later than 14 days after receiving settlement class data from Defendants. The Plaintiffs shall file a motion for attorneys' fees and costs and for the class representatives' enhancement payments no later than 30 days after 26 the date of signature on this order. The Plaintiffs shall file a motion for final approval of the proposed settlement, in accordance with Local Rule 230, no later than 30 days before the final approval hearing. This wage-and-hour class action lawsuit proceeds on Plaintiffs' First Amended Complaint ("FAC") filed on October 20, 2016. The Plaintiffs are a group of approximately 20,500 seasonal agricultural workers alleging a variety of state and federal labor law violations against Defendants between March 17, 2011 and January 1, 2019. The Defendant Fowler Packing is a commercial grower, packer, and shipper of various fruits, and Defendant Ag Force is a farm labor contractor. The FAC alleges twelve claims: (1) violations of the Migrant and Seasonal Agricultural Worker Protection Act for failing to pay all wages due or provide necessary tools; (2) failure to compensate for rest breaks in accordance with California Labor and Wage Orde; (3) failure to pay all wages due under the employment contract by requiring off-the-clock work and allowing the use of "ghost workers;" (4) failure to pay overtime, as required by state law; (5) failure to pay the minimum wage, in violation of California Labor Code section 1194; (6) failure to pay waiting time penalties in violation of California Labor Code section 203; (7) failure to provide necessary tools or reimburse for tools in violation of California Labor Code section 2802; (8) violations of California Business and Professions Code section 17200 by underpaying workers, failing to provide rest periods, and retaining the benefits of the labor without reasonable compensation; (9) violations of California Labor Code section 226 by failing to keep accurate records or provide accurate statements to the employees; (10) failure to record and/or pay for travel time and wait time, in violation of California Labor Code section 1194 and 29 U.S.C. section 1801, et seq.; (11) failure to reimburse for vehicle expenses, in violation of California Labor Code section 2802; and (12) failure to provide meal periods and keep accurate records of meal periods in violation of Wage Order. On February 16, 2018, the Court certified the following seven subclasses to represent claims in the FAC: 1. Piece Rate Rest Period Subclass "All individuals who were employed by Defendants as a non- exempt "field worker" or agricultural worker from March 17, 2011 to present, and were compensated on a piece rate basis." 2. Unpaid Travel Time Subclass "All individuals who were employed by Defendants as a non- exempt "field worker" or agricultural worker from March 17, 2011 to present, and worked at two or more fields in one day." 3. Vehicle Expense Subclass "All individuals who were employed by Defendants as a non- exempt "field worker" or agricultural worker from March 17, 2011 to present, worked at two or more fields in one day, and drove their own car between fields. 4. Meal Period Subclass "All individuals who were employed by Defendants as a non-exempt "field worker" or agricultural worker from March 17, 2011 to present, for whom no meal period was recorded on at least one day in which the employee worked more than five hours." 5. Tools Subclass "All individuals who were employed by Defendants as a non- exempt "field worker" or agricultural worker from March 17, 2011 to present who purchased gloves, files, oil, safety glasses, shears, clippers, scissors, sheaths, or replacement parts for their work for Defendants." 6. Unpaid Work Subclass "All individuals who were employed by Defendants as a non- exempt "field worker" or agricultural worker from March 17, 2011 to present who were required to arrive before their shift or perform duties after their shift, or wait for fruit to dry before beginning work." 7. Inaccurate Wage Statement Subclass "All individuals who were employed at any of the Defendants between March 17, 2012 and present as non- exempt field or agricultural workers for the Defendants." A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3QG9ijA at no extra charge.[CC] FREEWAY INSURANCE: Bid to Strike Class Claims Junked in Whittaker ----------------------------------------------------------------- In the class action lawsuit captioned as Brenda Whittaker, individually and on behalf of all others similarly situated, v. Freeway Insurance Services America, LLC, an Illinois limited liability company, Case No. 3:22-cv-08042-DGC (D. Ariz.), the Hon. Judge David G. Campbell entered an order denying the the Defendant motion to dismiss the complaint under Rule 12(b)(6) and to strike the class allegations under Rules 12(f). The Court will set a case management conference by separate order. The Defendant argues that Plaintiff's proposed class definitions are improper fail-safe 20 classes. The Defendant notes that certain terms proposed in the complaint "have precise legal definitions under the TCPA." The Court cannot determine at this stage whether the proposed classes are impermissible fail-safes. The Plaintiff argues that the class definitions will focus on conduct of the Defendant to identify those who received calls that violated the TCPA. Whether or not this focus makes the classes fail-safe will depend on the facts Plaintiff elicits and the form of class she proposed to be certified. The Plaintiff asserts claims under the Telephone Consumer Protection Act (TCPA) on behalf of herself and two classes of similarly situated individuals. The Defendant is a national car insurance provider. The Defendant argues that the complaint fails to show more than one telephone solicitation. The Defendant contends that the three calls Plaintiff did not answer -- and resulted in no voicemail -- cannot be considered as telephone solicitations. The Court does not agree. Multiple calls from the same telephone number over the course of a few days suggests a common purpose in the calls, and the recorded voicemail clearly suggests the purpose of the calls. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3XwK6OJ at no extra charge.[CC] FTD LLC: Bids to Dismiss or for Arbitration in Virgilio Suit Denied ------------------------------------------------------------------- In the case, VIFRANCIS VIRGILIO and BRIAN GRASER, individually and on behalf of those similarly situated, Plaintiffs v. FTD, LLC, Defendant, Case No. 1:22-CV-02628 (N.D. Ill.), Judge Mary M. Rowland of the U.S. District Court for the Northern District of Illinois, Eastern Division, denies FTD's motions to dismiss or compel arbitration. Plaintiffs Virgilio and Graser bring the class action suit against their former employer FTD, claiming that they were underpaid in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 201 et seq. FTD moves to compel arbitration and dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(3) on the ground that the Plaintiffs previously agreed to arbitrate any disputes related to their employment, and alternatively, moves under Rule 12(b)(6) for failure to state a claim. The Plaintiffs both worked as sales employees for FTD Companies, Inc., a floral delivery business: FTC Companies hired Virgilio as a Field Business Consultant in February 2016 and Graser as an Account Manager in February 2019. They both signed an offer of employment when they joined FTD Companies. The Employment Agreement included an arbitration provision. In July 2019, FTD Companies filed for Chapter 11 relief in the United States Bankruptcy Court for the District of Delaware. As part of the bankruptcy proceedings, FTD Companies and Gateway Mercury Holdings, LLC entered into an Asset Purchase Agreement (APA), which transferred certain assets from FTD Companies to Gateway. Gateway then transferred the Purchased Assets to FTD LLC. Following the bankruptcy, the Plaintiffs remained employed. But in light the new ownership, FTC LLC required the Plaintiffs to sign two new documents to keep their jobs. The first took effect on Jan. 1, 2020 (Sales Commission Plan). The second took effect on Aug. 30, 2021 (Title Change Letter). Neither document contained an arbitration clause nor referenced the arbitration provision in the Employment Agreement. Because the Plaintiffs initially performed their sales duties outside of FTD LLC's office, FTD LLC classified the Plaintiffs as exempt from overtime compensation pursuant to the outside sales exemption of the FLSA. Beginning in March 2020, FTD LLC required the Plaintiffs to perform their sales duties remotely from home. Due to this adjustment in their work setting, the Plaintiffs maintain that, from March 2020 forward, they no longer qualified as exempt under the FLSA and were thus entitled to overtime compensation. FTD LLC, however, never paid the Plaintiffs overtime wages during the period that they worked from home. The Plaintiffs eventually ended their employment with FTD LLC, with Virgilio leaving in October 2021 and Graser leaving in January 2022. To redress the Defendants' alleged overtime violations, the Plaintiffs filed a FLSA collective action. Pursuant to the arbitration provision in the Employment Agreement, FTD LLC moves to dismiss the Complaint under Rule 12(b)(1) for lack of subject-matter jurisdiction and Rule 12(b)(3) for improper venue. Alternatively, it moves the Court to compel arbitration and stay these proceedings pending arbitration. It also moves the Court to dismiss the Complaint under Rule 12(b)(6) for failure to state a claim. Judge Rowland opines that FTD LLC may have just assumed that the Employment Agreement, including the arbitration provision, still governed when the Plaintiffs joined FTD LLC. After all, besides the Sales Commission Plan and Title Change Letter, there is no evidence that they signed any new-hire paperwork with FTD LLC. But an unstated assumption is not good enough to compel arbitration. FTD LLC must supply evidence of an agreement to arbitrate with FTD LLC, not just with FTD Companies. Accordingly, Judge Rowland denies FTD LCC's motion to compel arbitration. Because the parties did not agree to arbitrate, Judge Rowland now considers the merits of FTD LLC motion to dismiss the complaint under Rule 12(b)(6) for failure to state a claim for unpaid overtime under the FLSA. He finds that the complaint clearly puts FTD LLC on notice as to which dates or times the Plaintiffs were underpaid -- namely, every week from March 2020 forward. As such, he denies FTD LLC's Rule 12(b)(6) motion. For the stated reasons, Judge Rowland denies FTD LLC's motions to dismiss or compel arbitration. He directs FTC LLC to answer the complaint by Jan. 31, 2023. A full-text copy of the Court's Jan. 10, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/mr3k5h2b from Leagle.com. GEICO GENERAL: FLSA Collective Conditional Certification Sought --------------------------------------------------------------- In the class action lawsuit captioned as AMALIA BENVENUTTI, On Behalf of Herself and All Others Similarly Situated, v. GEICO General Insurance Company d/b/a GEICO, Case No. 5:22-cv-00182-MTT (M.D. Ga.), the Plaintiff asks the Court to enter an order conditionally certifying her claims as a collective action pursuant to Section 216(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. section 216(b). The Plaintiff has sought leave to file her First Amended Collective Action Complaint in which she has added Government Employees Insurance Company as a defendant. The Plaintiff alleges that both GEICO General Insurance Company and Government Employees Insurance Company ("GEICO") are employers, as defined in the FLSA, of her and the similarly situated employees she seeks to represent. Specifically, the Plaintiff requests the entry of an order that conditionally certifies the following collective: "All current and former Service Representatives who worked for GEICO and were managed out of the GEICO Macon, Georgia call center at any time since March 1, 2020." The Plaintiff also requests that the Court: (1) order GEICO to produce a list of all collective class members, including names, last known mailing addresses, last known email addresses, and last known telephone numbers within 14 days of the Court's ruling; (2) approve Plaintiff's proposed Notice of Pending Fair Labor Standards Act Lawsuit and Consent to Become Party Plaintiff; (3) authorize Plaintiff to send her proposed Notice and Consent Form to collective class members via U.S. Mail (along with a prepaid return envelope addressed to Plaintiff's counsel) and email; and, (4) require that Consent Forms to join this action be postmarked or otherwise received by Plaintiff's counsel within 90 days of the date notice is sent. Geico operates as an insurance company. A copy of the Plaintiff's motion dated Jan. 12, 2022 is available from PacerMonitor.com at http://bit.ly/3iIEJgLat no extra charge.[CC] The Plaintiff is represented by: David W. Garrison, Esq. Joshua A. Frank, Esq. Nicole A. Chanin, Esq. BARRETT JOHNSTON MARTIN & GARRISON , LLC Philips Plaza, 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: (615) 244-2202 Facsimile: (615) 252-3798 E-mail: dgarrison@barrettjohnston.com jfrank@barrettjohnston.com nchanin@barrettjohnston.com - and - Richard Rouco, Esq. Nicholas Stanojevich, Esq. QUINN, CONNOR, WEAVER, DAVIES & ROUCO, LLP 2 - 20th Street North, Suite 930 Birmingham, AL 35203 Telephone: (205) 870-9989 E-mail: rrouco@qcwdr.com nstanojevich@qcwdr.com The Defendant is represented by: Alyssa K Peters, Esq. 577 Mulberry St, Ste 710 Macon, GA 31202 Telephone: (478) 750-8600 E-mail: apeters@constangy.com - and - Eric Hemmendinger, Esq. Evan L. Conder, Esq. One South St Ste 1800 Baltimore, MD 21202 Telephone: (410) 843-3457 E-mail: eh@shawe.com ec@shawe.com HASBROUCK HEIGHTS, NJ: Pietz Sues Over Coordinators' Unpaid Wages ----------------------------------------------------------------- ELIZABETH PIETZ, v. BOROUGH OF HASBROUCK HEIGHTS, JOHN DOES 1 through 10, and ABC CO. 1 through 10., Case No. 2:23-cv-00196 (D.N.J., Jan. 13, 2023) is a class action seeking to recover unpaid overtime compensation pursuant to the Fair Labor Standards Act and the New Jersey Wage and Hour Law. According to the complaint, the Defendants paid Ms. Pietz a weekly wage of $727.60 in 2014, $742.40 in 2015, and $852.81 in 2022, regardless of the number of hours that Plaintiff actually worked. The Defendants allegedly did not pay legally required overtime wages, calculated at one and one-half times Ms. Pietz's regular hourly wage when her worktime exceeded 40 hours in a single week. Ms. Pietz was not permitted to take regular breaks, and lunch break. She was frequently required to continue work, after her shift ended at 3:00 p.m., as a "volunteer," the lawsuit claims. Ms. Pietz was employed by Defendants from 2008 until June 28, 2022 as an "EMS Coordinator." Hasbrouck Heights is a political subdivision of the State of New Jersey.[BN] The Plaintiff is represented by: Thomas H. Andrykovitz, Esq. THE LAW OFFICES OF THOMAS H. ANDRYKOVITZ, P.C. 260 Madison Avenue, 15th Floor New York, NY 10017 Telephone: (212) 983-8999 HSBC BANK: Kelly Ni Sues Over Unpaid Wages for Personal Bankers --------------------------------------------------------------- KELLY NI, individually and on behalf of all others similarly situated, Plaintiff v. HSBC BANK USA, N.A., Defendant, Case No. 1:23-cv-00309 (S.D.N.Y., January 13, 2023) is a class action against the Defendant for unpaid minimum wages and unpaid overtime wages in violation of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was hired by the Defendant as a personal banker at its branch in New York City, New York from September 12, 2019 until March 15, 2021. HSBC Bank USA, N.A. is a banking services company based in New York, New York. [BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 INTERFACE INC: Steamfitters Local Seeks to Certify Rule 23 Class ---------------------------------------------------------------- In the class action lawsuit captioned as THOMAS S. SWANSON, Individually and on Behalf of All Others Similarly Situated, v. INTERFACE, INC., DANIEL T. HENDRIX, ORAL ARGUMENT REQUESTED JAY D. GOULD, BRUCE A. HAUSMANN and PATRICK C. LYNCH, Case No. 1:20-cv-05518-BMC-RER (E.D.N.Y.), the Lead Plaintiff Steamfitters Local 449 Pension Fund asks the Court to enter an order: 1. certifying this action to proceed as a class action pursuant to Federal Rule of Civil Procedure ("Rule") 23(a) and (b)(3); 2. appointing the Lead Plaintiff to serve as Class Representative; and 3. appointing Robbins Geller Rudman & Dowd LLP to serve as Class Counsel pursuant to Rule 23(g). Interface is a global manufacturer of commercial flooring with an integrated collection of carpet tiles and resilient flooring, including luxury vinyl tiles and nora brand rubber flooring. A copy of the Lead Plaintiff's motion to certify class dated Jan. 12, 2022 is available from PacerMonitor.com at http://bit.ly/3ZAHbq9at no extra charge.[CC] The Plaintiff is represented by: Samuel H. Rudman, Esq. David A. Rosenfeld, Esq. Philip T. Merenda, Esq. Natalie C. Bono, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 E-mail: srudman@rgrdlaw.com drosenfeld@rgrdlaw.com pmerenda@rgrdlaw.com nbono@rgrdlaw.com JBT AEROTECH: Robinson Sues Over Technicians' Unpaid Minimum Wages ------------------------------------------------------------------ BRONSON ROBINSON v. JBT AEROTECH CORPORATION and DOES 1 to 25, inclusive, Case No. 23STCV00612 (Cal. Super., Jan. 11, 2023) is a class action lawsuit seeking to recover unpaid minimum wages pursuant to the California Labor Code sections 1194, 1197 and 1197.1. The Plaintiff contends that the company also had a policy of rounding down work hours to the detriment of employees, which results in "time shaving" and employees such as the Plaintiff not being paid for all hours worked, akin to a minimum wage violation. Since he was required to bring his own hand tools and equipment for plumbing (despite asking the company to provide those tools) to effectuate his job duties, he was supposed to be paid twice the minimum wage per Industrial Welfare Commission Wage Order no. 4-2001, section 9B, but he was not paid twice the minimum wage. In addition, despite switching the Plaintiff to the overnight shift, he was not compensated a shift differential, the Plaintiff says. The Plaintiff worked as a maintenance technician for the Defendant. JBT AeroTech is a global provider of airport ground support equipment, gate equipment, military AGE, iOPS, and aircraft tugs.[BN] The Plaintiff is represented by: Harout Messrelian, Esq. MESSRELIAN LAW INC. 500 N. Central Ave., Suite 840 Glendale, CA 91203 Telephone: (818) 484-6531 Facsimile: (818) 956-1983 E-mail: hm@messrelianlaw.com JOHN HANCOCK: Court Modifies Class Cert Case Schedule in Kroetz --------------------------------------------------------------- In the class action lawsuit captioned as SILVINA KROETZ, on behalf of herself and others similarly situated, v. JOHN HANCOCK LIFE INSURANCE COMPANY (U.S.A.) and DOES 1 to 50, inclusive, Case No. 2:20-cv-02117-TJH-RAO (C.D. Cal.), the Hon. Judge Terry J. Hatter, Jr. entered an order modifying case schedule due to the plaintiff's current unavailability for deposition and potential as putative class representative, as follows: -- Deadline for Plaintiff to determine Feb. 17, 2023 whether she can proceed as a class representative and, if necessary, file a motion to withdraw, a motion to substitute/add another class representative, or other appropriate motion: -- Deadlines for (1) Defendant's March 24, 2023 opposition to Plaintiff's motion for class certification and (2) Defendant's reply in support of partial summary judgment: -- Hearing on Defendant's motion for April 17, 2023 partial summary judgment: -- Deadline for Plaintiff's reply in April 28, 2023 support of class certification: -- Hearing on Plaintiff's motion for May 22, 2023 class certification: John Hancock is a Boston-based insurance company. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3H73ext at no extra charge.[CC] JUBILANT HOLLISTERSTIER: Goddard Labor Suit Removed to E.D. Wash. ----------------------------------------------------------------- The case styled KEVIN GODDARD and ERIC SMITH, on behalf of themselves and all others similarly situated, Plaintiffs v. JUBILANT HOLLISTERSTIER, LLC, a Delaware Corporation, d/b/a Hollister-Stier Laboratories, LLC, Defendant, Case No. 20-2-06175-32, was removed from the Spokane County Superior Court, Washington, to the United States District Court for the Eastern District of Washington on January 5, 2023. The Clerk of Court for the Eastern District of Washington assigned Case No. 2:23-cv-00004 to the proceeding. The class in the complaint consists of "all former and/or current non-exempt, hourly employees who work, or have worked, for Jubilant at the Spokane, Washington location from June 2016 until the date of trial who: 1) were not paid for all hours worked, 2) were not paid overtime for all hours worked over 40 hours in a work week, and 3) were not provided a meaningful opportunity to take a rest break or meal break in accordance with Washington law." Jubilant Hollisterstier, LLC manufactures medical products.[BN] The Defendant is represented by: Ronald A. Van Wert, Esq. Megan M. Clark, Esq. ETTER, McMAHON, LAMBERSON, VAN WERT & ORESKOVICH, P.C. 618 West Riverside Avenue, Suite 210 Spokane, WA 99201 Telephone: (509) 747-9100 Facsimile: (509) 623-1439 E-mail: rvw@ettermcmahon.com mclark@ettermcmahon.com KELLER WILLIAMS: Agreed to Settle TCPA Class Suit for $40-Million ----------------------------------------------------------------- Top Class Action posted that Keller Williams agreed to pay $40 million to resolve claims that it contacted consumers with unsolicited telemarketing calls and texts. The settlement benefits consumers who received two or more calls or text messages from Keller Williams on a phone number that appeared on the National Do Not Call Registry, where the calls included an artificial or prerecorded voice and/or where the phone calls were made using an automatic dialing system since May 2, 2014. Plaintiffs in the telemarketing class action lawsuit accused Keller Williams of violating the federal Telephone Consumer Protection Act (TCPA) by contacting them with unsolicited telemarketing calls and texts. According to the plaintiffs, Keller Williams had to receive consent before contacting consumers with these communications. Keller Williams is a real estate company with franchises around the country. Consumers may have been contacted by corporate Keller Williams or by individual realtors. Keller Williams hasn't admitted any wrongdoing but agreed to a $40 million class action settlement to resolve these allegations. Under the terms of the unsolicited marketing calls settlement, class members can receive a cash payment of up to $20. Class members will receive an equal share of the net settlement fund per phone number affected by the Keller Williams TCPA claims. Exact payment amounts will vary depending on the number of claims filed with the settlement. In addition to providing cash funds, Keller Williams will create a TCPA task force to enhance its compliance with federal law, will make TCPA and National Do Not Call Registry resources more easily available to Keller Williams franchisees, and provide additional materials. The deadline for exclusion and objection is March 7, 2023. The final approval hearing for the Keller Williams unsolicited marketing calls settlement is scheduled for March 31, 2023. In order to receive settlement benefits, class members must submit a valid claim form by March 7, 2023. Who's Eligible The settlement benefits consumers who received two or more calls or text messages from Keller Williams on a phone number that appeared on the National Do Not Call Registry, where the calls included an artificial or prerecorded voice and/or where the phone calls were made using an automatic dialing system since May 2, 2014. Potential Award: $20. Proof of Purchase: N/A Claim Form: http://www.realtytcpa.com/DynamicForms2/2589/Form/689e9f60-c14b-49e8-8bd7-b8c53a568ce5 NOTE: If you do not qualify for this settlement do NOT file a claim. Remember: You are submitting your claim under penalty of perjury. You are also harming other eligible Class Members by submitting a fraudulent claim. If you're unsure if you qualify, please read the FAQ section of the Settlement Administrator's website to ensure you meet all standards (Top Class Actions is not a Settlement Administrator). If you don't qualify for this settlement, check out our database of other open class action settlements you may be eligible for. Claim Form Deadline: 03/07/2023 Case Name: Deshay, et al. v. Keller Williams Realty Inc., Case No. 312022CA000457, in the Circuit Court for the 19th Judicial Circuit for Indian-River County, Florida Final Hearing: 03/31/2023 Settlement Website: realtytcpa.com Claims Administrator: DeShay v. Keller Williams Realty c/o Kroll Settlement Administration P.O. Box 5324 New York, NY 10150-5324 833-709-0651 Class Counsel: Avi R Kaufman KAUFMAN PA Stefan Coleman COLEMAN PLLC Defense Counsel HINSHAW & CULBERTSON LLP [GN] KRAFT HEINZ: Tatum Suit Transferred to N.D. Ill. ------------------------------------------------ The case styled PEGGY TATUM on behalf of herself and all others similarly situated, Plaintiff v. THE KRAFT HEINZ COMPANY and KRAFT HEINZ FOODS COMPANY (LLC), Defendants, Case No. 3:22-cv-07180, was transferred from the United States District Court for the Northern District of California to the United States District Court for the Northern District of Illinois on January 5, 2023. The Clerk of Court for the Northern District of Illinois assigned Case No. 1:23-cv-00073 to the proceeding. The suit is a national consumer class action for Defendants' alleged violations of state consumer protection, unfair and unlawful competition, and false advertising laws, common-law breach of warranties, negligent misrepresentation, and fraud by omission. The Kraft Heinz Company is an American multinational food company formed by the merger of Kraft Foods and Heinz co-headquartered in Chicago and Pittsburgh.[BN] The Plaintiff is represented by: Marc L. Godino, Esq. Kevin Francis Ruf, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 E-mail: mgodino@glancylaw.com kevinruf@gmail.com The Defendants are represented by: Alexander Michael Smith, Esq. JENNER AND BLOCK LLP 515 South Flower Street, Suite 3300 Los Angeles, CA 90660 Telephone: (213) 239-5100 E-mail: asmith@jenner.com - and - Dean Nicholas Panos, Esq. JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL 60654 Telephone: (312) 222-9350 E-mail: dpanos@jenner.com LASERSHIP INC: Owusu Seeks Delivery Drivers' OT Wages Under FLSA ---------------------------------------------------------------- MICHAEL OWUSU v. LASERSHIP, INC., Case No. 1:23-cv-00074-SHR (M.D. Pa., Jan. 13, 2023) contends that Defendant failed to pay the Plaintiff and the Overtime Subclass Plaintiffs the mandated overtime wages for all hours worked over 40 hours per work week in violation of the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act and failed to pay agreed upon wages for all work done while making unlawful deductions from their paychecks in violation of the Pennsylvania Wage Payment and Collection Law. The Plaintiff individually alleges that Defendant failed to the Plaintiff his agreed upon wages based on an enforceable employment contract in violation of the WPCL and Pennsylvania common law for breach of contract. Specifically, the Plaintiff contends that the Defendant unlawfully misclassified him and the Overtime Subclass Plaintiffs as independent contractors under the FLSA and the PMWA and failed to accurately track and pay them for all hours worked. The Defendant allegedly deducted a fee from the Plaintiff's wages every pay period that Defendant labeled "Charge Back" for unspecified fees allegedly incurred by Defendant that related to the Plaintiff's employment with Defendant. During the peak holiday season around November and December, the Plaintiff worked seven days per week and worked 70 hours per work week. Irrespective of the number of hours worked, the Plaintiff was paid $2.50 per package delivered, says the suit. Accordingly, the Defendant entered into an implied employment contract with the Plaintiff by promising to pay the Plaintiff $244.00 per day beginning on November 8, 2022 and continuing until Defendant's business levels picked up. By failing to pay the Plaintiff $244.00 per day during this time period, the Defendant breached its implied employment contract with the Plaintiff in violation of the WPCL, the suit claims. The Plaintiff was employed by the Defendant as a delivery driver from July 2020 until December 5, 2022. LaserShip is a regional last-mile delivery company that services the Eastern and Midwest United States.[BN] The Plaintiff is represented by: Benjamin Salvina, Esq. MARZZACCO NIVEN & ASSOCIATES 945 East Park Drive, Suite 103 Harrisburg, PA 17111 Telephone: (717) 231-1640 Facsimile: (717) 231-1650 E-mail: bsalvina@klnivenlaw.com LASTPASS US: Faces Class Action Lawsuit Over Alleged Data Breach ---------------------------------------------------------------- Olivia Powell of Cyber Security Hub reports that an anonymous plaintiff has filed a class action lawsuit against password management company LastPass after the company suffered two data breaches within four months in 2022. The suit, which was filed by an anonymous plaintiff referred to as 'John Doe' with the United States District Court of Massachusetts, alleges that LastPass failed to "exercise reasonable care in securing and safeguarding highly sensitive consumer data". The lawsuit accuses LastPass of failing to secure and safeguard customers' personal data. The lawsuit also alleges that bad actors could "wreak financial havoc on the lives of LastPass users" affected by the breach. The plaintiff has accused LastPass of "likely stor[ing]" the master passwords of users - the sole way of unlocking users' password vaults and accessing their login information - meaning users' passwords would have been accessed during the breach. This would allow malicious parties access to any number of users' accounts, including those that store banking or payment information. However, according to LastPass, "master password[s] [are] never known to LastPass and [are] not stored or maintained by LastPass", meaning they could not have been accessed in the breaches. The lawsuit goes on to accuse LastPass of "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", meaning that those affected by the breach are at an "especially high risk of ransom threats and blackmail attempts" due to the information exposed. This information includes company names, end-user names, billing addresses, email addresses, telephone numbers and the IP addresses used to access LastPass services. It also states that the personal data of victims is "no longer hidden but is, instead, in the hands of cybercriminals who have already fraudulently misused such data". The evidence for this is stated to be that in November 2022, Doe had around US$53,000 worth of Bitcoin stolen from his blockchain wallet, allegedly via the use of private keys he had stored using LastPass. The lawsuit goes on to allege that Doe has "never knowingly transmitted unencrypted sensitive personally identifiable information or information that is otherwise confidential over any unsecured source" and is "thoroughly diligent" with securing his personal information. For this reason, the only way his Bitcoin could have been stolen is if malicious parties gained access to his master password and therefore the private keys for his Bitcoin vault. LastPass maintained, however, that it would be "extremely difficult to attempt to brute force master passwords" due to the hashing and encryption methods used to protect customers. The company also noted that it would take "millions of years to guess [a] master password using generally-available password-cracking technology" if customers followed its best-practice guidelines for creating master passwords. The password management company also stated that "sensitive vault data, such as usernames and passwords, secure notes, attachments and form-fill fields" had remained safely encrypted due to LastPass' zero knowledge architecture. The LastPass' 2022 data breaches In August and November 2022, LastPass suffered two connected data breaches that resulted in confidential customer information to be compromised. The August breach saw a malicious actor steal source code and technical information from LastPass’ development environment that was then used to target an employee. This allowed the hacker to gain access to credentials and keys, which they then used to access LastPass' third-party cloud storage service in November 2022. Using the keys, the malicious party was able to decrypt some storage volumes within the storage service. After the information was decrypted, the hacker accessed and copied information stored on a cloud backup that included "basic customer account information and related metadata". The number of customers affected has not yet been shared. LastPass explained that the hacker was also able to "copy a backup of customer vault data from the encrypted storage container which is stored in a proprietary binary format that contains both unencrypted data, such as website URLs", as well as "fully-encrypted sensitive fields such as website usernames and passwords, secure notes and form-filled data". The password management company reassured its customers about the safety of their encrypteddata, noting that all encrypted files remain "secured with 256-bit AES encryption", meaning they need a unique encryption key derived from each user's password to decrypt it. As LastPass does not know, store or maintain user master passwords, this reduces the chance of compromise. Despite this, LastPass still warned its customers to be wary of social engineering or phishing attacks in the wake of the attack. [GN] LATCH INC: Faces Schwartz Class Suit Over Decline of Stock Price ---------------------------------------------------------------- SCOTT SCHWARTZ, Individually and on behalf of all others similarly situated v. LATCH, INC., LUKE SCHOENFELDER, ROBERT J. SPEYER, PAUL A. GALIANO, JENNUY WONG, JOSHUA KAZAM, JENNIFER RUBIO, NED SEGAL, MICHELANGELO VOLPI, PETER CAMPBELL, TRICIA HAN, RAJU RISHI, J. ALLEN SMITH, and ANDREW SUGRUE,, Case No. 1:23-cv-00027-UNA (D. Del., Jan. 11, 2023) is a verified class action complaint asserting claims arising from the merger of Legacy Latch with and into Lionet Merger Sub, Inc., a wholly owned subsidiary of TS Innovation Acquisitions Corp., for violations of Sections 11 and 15 of the Securities Act of 1933 against the Defendants. The securities class action is brought on behalf of a class consisting of all persons and entities that were Legacy Latch shareholders and acquired publicly traded securities of Latch through its June 4, 2021, merger pursuant to Latch's registration statement and prospectus issued in connection with Latch's June 4, 2021 issuance of stock. On August 25, 2022, Latch filed a form 8-K stating that "certain revenue recognition errors occurred as a result of unreported sales arrangements due to sales activity that was inconsistent with the Company's internal controls and procedures" and that the company would be restating its consolidated financial statements for 2021 and 2022 as a result. Latch's stock price fell $0.13, or 12.2%, to close at $0.95 per share on August 26, 2022, following this announcement. Right after the Merger, Latch's stock traded for as high as $11.27. On November 10, 2022, Latch filed another Form 12b-25 Notification of Late Filing with the SEC, again citing the Audit Committee's investigation and stating that it had been "expanded to include an investigation of the Company's financial statements for 2019 and 2020"—which notably pre-date the Merger. The crash of Latch's stock caused financial losses for Plaintiff and putative class members. The Plaintiff and putative class members seek to hold the Defendants responsible for violations of Section 11 of the Securities Act, in connection with materially false and misleading statements made in the Pre-Merger Registration Statement that Defendants knew and/or recklessly disregarded were materially false and misleading when made and/or that omitted information necessary to make the Defendants' statements true accurate, and reliable. Plaintiff, through undersigned counsel, makes these allegations upon personal knowledge and upon information and belief based on the investigation of counsel. The disclosures surrounding the deal were not just marginally flawed, but affirmatively false and misleading. The result has been a financial catastrophe and the Company's stock price has plummeted. Indeed, the Company's shares—which had traded around $10 at the time of the Merger—closed recently at under $0.67 per share on December 29, 2022, says the suit. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other class members have suffered significant losses and damages, the suit alleges. The Plaintiff is a former Legacy Latch employee and acquired Latch securities pursuant and/or traceable to the Pre-Merger Registration Statement issued in connection with the Company's June 4, 2021 issuance of stock. Latch is a technology company offering smart locks and a full operating system, LatchOS, to address entry, guest management, and other access control for residential buildings.[BN] The Plaintiff is represented by: P. Bradford deLeeuw, Esq. DELEEUW LAW LLC 1301 Walnut Green Road Wilmington, DE 19807 Telephone: (302) 274-2180 E-mail: brad@deleeuwlaw.com - and - Brent B. Barriere, Esq. Jason W. Burge, Esq. Kaja S. Elmer, Esq. FISHMAN HAYGOOD, L.L.P. 201 St. Charles Avenue, 46th Floor New Orleans, LA 70170-4600 Telephone: (504) 586-5252 Facsimile: (504) 586-5250 E-mail: bbarriere@fishmanhaygood.com jburge@fishmanhaygood.com kelmer@fishmanhaygood.com LATINO FARM: Cruz Labor Suit Removed to E.D. Cal. ------------------------------------------------- The case styled NICANDRO CRUZ, as an individual, and on behalf of all others similarly situated, Plaintiff v. LUIS ANTONIO GONZALEZ DBA LATINO FARM LABOR SERVICE, an individual; and DOES 1 through 100, inclusive, Defendants, Case No. VCU293995, was removed from the Superior Court of the State of California for the County of Tulare, to the United States District Court for the Eastern District of California on January 6, 2023. The Clerk of Court for the Eastern District of California assigned Case No. 1:23-cv-00037-SKO to the proceeding. The complaint seeks remedies against the Defendants for failure to pay minimum wage, failure to pay overtime wages, failure to pay for rest periods, failure to pay wages timely upon cessation of employment, failure to furnish accurate itemized wage statements, and failure to reimburse business expenses. Latino Farm Labor Service is a trucking company running freight hauling business.[BN] The Defendant is represented by: Thomas E. Campagne, Esq. Kari L. Ley, Esq. CAMPAGNE & CAMPAGNE A Professional Corporation Airport Office Center 1685 North Helm Avenue Fresno, CA 93727 Telephone: (559) 255-1637 Facsimile: (559) 252-9617 E-mail: tcampagne@campagnelaw.com LOWES HOME: Azizpor Sues Over Failure to Provide Proper Wages ------------------------------------------------------------- DAVID AZIZPOR, an individual; ARTEMIO ANGEL, an individual; DANIEL WEST, an individual; EDWARD SHUBIN, an individual; ROBERT GREGORY, an individual; and RONALD BLUHM, an individual; each as an individual and on behalf of all others similarly situated, Plaintiffs v. LOWES HOME CENTERS, LLC, a North Carolina corporation, and DOES 1-50, inclusive, Defendants, Case No. 3:23-cv-00085 (N.D. Cal., Jan. 6, 2023) is a class action brought by the Plaintiffs, on behalf of themselves, and other individuals similarly situated pursuant to the California Labor Code and Industrial Wage Commission and the Fair Labor Standards Act for unpaid premiums for rest-and-meal break violations, unpaid overtime compensation, applicable penalties, injunctive and other relief and reasonable attorneys' fees and costs. Plaintiff Azizpor was employed by the Defendant as a sales specialist from May 2017 to August 2019. Plaintiff Angel was employed as a head cashier from 2015 to January 2019. Plaintiff West worked as a customer service associate from March 2019 to May 2020. Plaintiff Shubin was hired as a customer assistant supervisor from March 21, 2021 to December 2021. Plaintiff Gregory was employed as a night crew stock receiver from March 2020 to August 25, 2022. Plaintiff Bluhm worked as a sales associate from June 2022 to November 5, 2022. Lowes Home Centers, LLC retails home improvement, building materials, and home appliances.[BN] The Plaintiffs are represented by: Carolyn H. Cottrell, Esq. Ori Edelstein, Esq. Eugene Zinovyev, Esq. Kristabel Sandoval, Esq. Beth A. Christopher, Esq. SCHNEIDER WALLACE COTTRELL KONECKY LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: ccottrell@schneiderwallace.com oedelstein@schneiderwallace.com ezinovyev@schneiderwallace.com ksandoval@schneiderwallace.com echristopher@schneiderwallace.com MDL 3050: Seeley Suit Consolidated in Chantix Product Liability Row ------------------------------------------------------------------- The case styled DEBRA SEELEY, individually, and on behalf of all others similarly situated, Plaintiff v. PFIZER, INC., Defendant, Case No. 3:21-cv-07892, was transferred from the United States District Court for the Northern District of California to the United States District Court for the Southern District of New York on January 6, 2022. The Clerk of Court for the Southern District of New York assigned Case No. 1:23-cv-00116-KPF to the proceeding. The case is consolidated in the lawsuit entitled In Re: Chantix (Varenicline) Marketing, Sales Practices and Products Liability Litigation, MDL-3050. This case arises from adulterated, misbranded, and unapproved varenicline-containing drugs that were designed, manufactured, marketed, distributed, packaged, and/or ultimately sold by Defendant Pfizer, Inc., in the United States under the brand name Chantix(R). These VCDs are non-merchantable, and are not of the quality represented by Defendant, says the suit. Pfizer Inc. is an American multinational pharmaceutical and biotechnology corporation headquartered on 42nd Street in Manhattan, New York City.[BN] The Plaintiff is represented by: Marc Alexander Castaneda, Esq. Sara Dawn Avila, Esq. Gillian Leigh Wade, Esq. MILSTEIN, JACKSON, FAIRCHILD & WADE, LLP 10990 Wilshire Boulevard, 8th Floor Los Angeles, CA 90024 Telephone: (310) 396-9600 Facsimile: (310) 396-9635 The Defendant is represented by: Matthew A. Holian, Esq. DLA PIPER LLP (US) 33 Arch Street, 26th Floor Boston, MA 02110-1447 Telephone: (617) 406-6009 E-mail: matt.holian@dlapiper.com MENARD INC: Class Cert Scheduling Order Entered in Shoemaker ------------------------------------------------------------ In the class action lawsuit captioned as GLENN SHOEMAKER, on behalf of himself and all others similarly situated, v. MENARD, INC., DISSTON COMPANY, and GINO DEVELOPMENT, INC., Case No. 2:22-cv-04089-MDH (W.D. Mo.), the Hon. Judge Douglas Harpool entered a class certification scheduling order as follows: -- Any motion to join additional March 10, 2023 parties shall be filed on or before: -- All Motions related to Class May 11, 2023 Discovery shall be filed by: -- All pre-trial discovery as to September 11, 2023 class certification shall be completed by: -- The Plaintiff shall file all September 11, 2023 motions seeking class certification by: -- The Defendant shall file any October 11, 2023 responsive motions objecting to class certification by: -- The Plaintiff will designate June 12, 2023 any expert witnesses as to class certification by: -- The Defendants will designate August 11, 2023 any expert witnesses as to class certification by: Menard owns and operates home improvement stores. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3Xf4rIC at no extra charge.[CC] MOODY'S CO-WORKER: Class Settlement in Purinton Gets Final OK ------------------------------------------------------------- In the class action lawsuit captioned as MATTHEW W. PURINTON, v. MOODY'S CO-WORKER OWNED, INC., et al., Case No. 2:20-cv-00296-JAW (D. Me.), the Hon. Judge John A. Woodcock, Jr. entered an order on final settlement approval and attorney's fees and expenses as follows: -- The Plaintiffs' motions are granted in all respects. -- The Court approves final settlement of all claims in this matter, including the service awards to the Named Plaintiffs. -- The Court grants Class Counsel's motion for attorney's fees and expenses. -- The Court grants the parties' motion to certify this action as a class action for settlement purposes only and because the Action has been certified as a class action under Federal Rule of Civil Procedure 23(b)(3), all Settlement Class Members who did not actively opt-out of the case (and the Settlement thereof) will be bound by the dismissal with prejudice on the merits, and by the release of claims described in the Settlement Agreement. -- The case is dismissed with prejudice; provided, however, that, without affecting the finality of this Judgment and Order of Dismissal with Prejudice, the Court hereby retains exclusive and continuing jurisdiction for purposes of supervising, administering, implementing, interpreting, and enforcing this Judgment and Order of Dismissal with Prejudice, as well as the Settlement Agreement, including administration and distribution of payment thereunder. The Named Plaintiffs Matthew Purinton, Jeffrey Morin, and Jacob Cyr, and other employees of Defendants did not record 15-minute rest breaks as hours worked on their time sheets under a written employment policy maintained by Moody's authorizing hourly employees to take two unpaid 15-minute breaks during the day. In April 2021, they also retained a nationally recognized mediator, Mark Irvings, and made major settlement efforts under his auspices until December. Then, beginning with a full-day Judicial Settlement Conference on January 10, 2022, Magistrate Judge Nivison oversaw over five months of vigorous negotiations between the parties at arm's length and ultimately achieved this Court-supervised proposed settlement of the putative class action claims for unpaid wages. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3ZDP129 at no extra charge.[CC] NAUTILUS INSURANCE: Shalabi Case Remanded to Parish of Orleans Ct. ------------------------------------------------------------------ In the class action lawsuit captioned as FIRAS SHALABI D/B/A ZEEN WIRELESS 2, LLC, ZEEN WIRELESS 3, LLC, ZEEN WIRELESS 7, LLC, ZEEN WIRELESS 13, LLC, ZEEN WIRELESS 14, LLC, EXPRESSWAY WIRELESS, LLC, AND EXPRESSWAY WIRELESS 2, LLC. v. NAUTILUS INSURANCE COMPANY AND UNDERWRITERS AT LLOYD'S LONDON, Case No. 2:22-cv-03589-CJB-MBN (E.D. La.), the Hon. Judge Carl J. Barbier entered an order granting the Plaintiffs' motion to remand case to the Civil District Court for the Parish of Orleans. The Court further entered an order that Defendant's Rule 21 Motion to Drop Defendant is denied and Oral Argument on the motions is canceled. The Court disagrees that Lloyds' citizenship is immaterial to its jurisdiction, because of the well-established rule that diversity jurisdiction depends on the citizenship of the parties at the time the action is brought. The Court's jurisdiction must be determined before taking further action, such as ruling on the motion to drop. Thus, as the removing party bearing the burden of showing that federal jurisdiction exists and removal was proper, Defendants must show that complete diversity of citizenship exists, including by alleging the citizenship of Defendant Lloyds. Lloyds contends that this Court should drop it as a misjoined defendant because no factual or legal overlap exists between Plaintiffs' claims against Lloyds and Plaintiffs' claims against Nautilus. Lloyds does not allege that plaintiffs have improperly joined it, which would require proving actual fraud in the pleadings or the inability to establish a cause of action against them. However, Lloyds argues that the Court should simply disregard its citizenship as a misjoined defendant. The Court notes that this argument misinterprets the law; Courts disregard a non-diverse defendant's citizenship in the case of improper joinder, rather than for procedural misjoinder. This case arises out of a claim for alleged damage to Plaintiffs' seven parcels of property (the "Properties") as a result of Hurricane Ida. On August 29, 2021, Hurricane Ida made landfall in Port Fourchon, Louisiana as a Category 4 Hurricane, and the storm traveled north over the New Orleans metropolitan area. The Plaintiffs allege that the Properties sustained damage to their roofs, exteriors, and interiors, causing business interruption, loss of inventory, and other losses. At the time, six of the Properties were insured by a Nautilus Insurance Company ("Nautilus") policy, and one of the Properties was insured by Certain Underwriters and Lloyd's, London Subscribing to Policy No. AP-CF-A0629 ("Lloyds"). Nautilus Insurance operates as an insurance company. The Company provides provides excess and surplus lines commercial property and casualty insurance coverage. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3WeEMyC at no extra charge.[CC] NCR CORPORATION: Fails to Pay Timely Wages, Olubowale Suit Claims ----------------------------------------------------------------- TITILAYO OLUBOWALE, individually and on behalf of all others similarly situated, Plaintiff v. NCR CORPORATION, Defendant, Case No. 1:23-cv-00338 (S.D.N.Y., January 13, 2023) is a class action against the Defendant for its failure to pay timely wages in violation of the New York Labor Law. The Plaintiff was employed by the Defendant as a customer engineer from September 2015 until November 2022. NCR Corporation, previously known as National Cash Register, is a global software and technology services company, headquartered in Atlanta, Georgia. [BN] The Plaintiff is represented by: Brendan Sweeney, Esq. THE LAW OFFICE OF CHRISTOPHER Q. DAVIS, PLLC 80 Broad Street, Suite 703 New York, NY 10004 Telephone: (646) 430-7930 Facsimile: (646) 349-2504 E-mail: bsweeney@workingsolutionsnyc.com NEW ASIA: Minnesota Court Grants Li's Bid to Dismiss Counterclaim ----------------------------------------------------------------- In the case, Changshan Li, Plaintiff v. New Asia Chinese Restaurant Wan Da, Inc., Hong Sheng Lin and Rong Lin, Defendants, Case No. 22-cv-1665 (WMW/JFD) (D. Minn.), Judge Wilhelmina M. Wright of the U.S. District Court for the District of Minnesota: a. denies Rong Lin (R.L.)'s motion to dismiss Li's claims as to her; b. grants Li's motion to dismiss Defendants New Asia Chinese Restaurant Wan Da, Inc., and Hong Sheng Lin (H.L.)'s counterclaim. Li resides in Minnesota. New Asia is a restaurant incorporated in Minnesota and located in St. Paul, Minnesota. H.L. and R.L. own New Asia and manage its employees. Li worked at New Asia between approximately April 4, 2020, and April 2, 2022, as food-delivery employee. He alleges that he worked approximately 67 hours during his six-day workweek. No matter how many hours he worked, Li alleges, New Asia always paid him a flat base salary without any overtime compensation. After working for New Asia for approximately two years, Li alleges that he notified the Defendants that he intended to file a complaint regarding his wages. According to Li, he was fired later that day. The Defendants did not provide Li with any written wage notices or an accurate earnings statement with each paycheck, Li alleges. Li alleges ten claims against the Defendants: minimum wage violations of the Fair Labor Standards Act (FLSA) and Minnesota Fair Labor Standards Act (MFLSA), overtime wage violations of the FLSA and MFLSA, record-keeping violations of the MFLSA, failure to pay for all hours worked in violation of the Minnesota Prevailing Wage Act (MPWA), failure to pay wages promptly in violation of the MPWA, recordkeeping violations of the MPWA, written notice violations of the MPWA and retaliation in violation of the MPWA. Li also seeks to certify this matter as a class action pursuant to Rule 23, Fed. R. Civ. P. New Asia and H.L. allege one counterclaim against Li for "blackmail and extortion." During his time as a New Asia employee, New Asia and H.L. allege, Li cheated H.L. out of "thousands of dollars" by inducing H.L. under false pretenses to buy a car for Li with a loan that Li never repaid, to rent an apartment for which Li never paid rent and to lease a car for which Li never made payments. When H.L. "threatened to take action" against Li, New Asia and H.L. allege, Li threatened to "sue the Defendants into bankruptcy." The matter is before the Court on three motions. R.L. moves to dismiss Li's claims as to her. Li moves to dismiss Defendants New Asia and H.L.'s counterclaim. First, Judge Wright examines R.L.'s motion to dismiss Li's claims as to R.L. R.L. seeks dismissal of Li's claims on three independent grounds: insufficient service of process, lack of subject-matter jurisdiction and failure to state a claim on which relief can be granted. Li has not responded to R.L.'s motion. Judge Wright denies R.L.'s motion to dismiss because Li did not properly serve R.L. but grants Li 30 days from the date of her Order to perfect service on R.L. And because R.L. filed two copies of the same motion (the first dated July 17, 2022, without the memorandum of law and other attachments that the Local Rules require and the second dated July 22, 2022, with those documents) the Court's ruling pertains to the second copy of R.L.'s motion, dated July 22, 2022. Judge Wright treats as erroneously filed and denies as moot the first copy of R.L.'s motion, dated July 17, 2022. Because she denies R.L.'s motion to dismiss, Judge Wright declines to address the remaining grounds for R.L.'s motion to dismiss or R.L.'s alternative motion for a more definite statement. She, therefore, denies as moot R.L.'s motion for a more definite statement. Next, Judge Wright examines Li's motion to dismiss New Asia and H.L.'s counterclaim. Li moves for dismissal of New Asia and H.L.'s counterclaim for "blackmail and extortion," citing Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P. New Asia and H.L. oppose Li's motion. They argue that Minnesota Statutes Section 609.27, subdivision 1(3), "cover the facts alleged" and Li's actions, such that dismissal is inappropriate. Judge Wright finds that New Asia and H.L. rest exclusively on the argument that Minnesota Statutes section 609.27 supports their counterclaim for extortion and blackmail. This argument fails, as the statute on which New Asia and H.L. rely does not create a private right of action. Because Minnesota law does not recognize any separate civil claim for extortion, no cause of action exists to support this counterclaim. New Asia and H.L., therefore, have not stated a "facially plausible claim to relief." For this reason, Judge Wright grants Li's motion to dismiss New Asia and H.L.'s counterclaim. Based on the foregoing, Judge Wright denies R.L.'s motion to dismiss for insufficient service of process dated July 22, 2022. Li will have 30 days from the date of the Order to perfect service on R.L. in accordance with the Federal Rules of Civil Procedure. R.L.'s motion to dismiss, or in the alternative, for a more definite statement dated July 13, 2022, is denied as moot. Li's motion to dismiss is granted. A full-text copy of the Court's Jan. 10, 2023 Order is available at https://tinyurl.com/26bmfxn6 from Leagle.com. NEW YORK GYPSUM: Bray, et al., Seek Rule 23 Class Certification --------------------------------------------------------------- In the class action lawsuit captioned as Bray, et al., v. New York Gypsum Floors Inc. et al., Case No. 7:21-cv-02340-CS (S.D.N.Y.), the Plaintiffs request a pre-motion conference to move for certification of a class pursuant to Fed. R. Civ. P. 23 and propose the following briefing schedule for the motion: -- The Plaintiffs' motion to be filed by February 10, 2023; -- The Defendants' opposition to be filed by March 13, 2023; -- The Plaintiffs reply to be filed by March 27, 2023. On March 17, 2021,the Plaintiffs commenced this class and collective action against the Defendants, for violations of the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"), including failure to pay prevailing wages and benefits, wages for all hours worked, overtime, and spread of hours, as well as for unauthorized deductions made from Plaintiffs' wages, and damages for failure to provide paystubs and wage notices. On July 15, 2021, Plaintiffs moved for conditional certification of the FLSA collective pursuant to 29 U.S.C. section 216(b). The Defendants did not object to conditional certification. Accordingly, on August 20, 2021, the Court ordered that this action proceed as a collective action. Notice was distributed to: "all non-management hourly paid individuals who have worked for New York Gypsum Floors on or after the date six years before the filing of the Complaint in this action (i.e., March 17, 2015 to the date of the Court's Order on this motion)." In addition to the two Named Plaintiffs, twenty-six other individuals have filed Consent to Join forms. The deadline to complete depositions in this matter is February 17, 2023 and all discovery is to be completed by March 17, 2023. Gypsum Floors operates as flooring contractors. A copy of the Plaintiffs' motion dated Jan. 12, 2022 is available from PacerMonitor.com at http://bit.ly/3QJ0mKcat no extra charge.[CC] The Plaintiffs are represented by: Michele A. Moreno, Esq. VIRGINIA & AMBINDER LLP 40 Broad Street, 7th Floor New York, NY 10004 Telephone: (212) 943-9080 E-mail: mmoreno@vandallp.com NEW YORK, NY: Court Junks Plaintiffs' Bid for Reconsideration ------------------------------------------------------------- In the class action lawsuit captioned as CLARENCE BOWEN ALLEN et al., v. CITY OF NEW YORK et al, Case No. 1:19-cv-03786-JMF (S.D.N.Y.), the Hon. Judge Jesse M. Furman entered an order that the Plaintiffs' motion for reconsideration or, in the alternative, for leave to appeal must be and is denied. The parties are reminded that they are to file a joint letter regarding settlement efforts and summary judgment briefing. The Clerk of Court is directed to terminate, the Court says. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3XbsOa5 at no extra charge.[CC] NEW YORK, NY: Seeks Jan. 31 Extension to Class Cert Opposition --------------------------------------------------------------- In the class action lawsuit captioned as Aboubakar et al v. The City of New York, et al., Case No. 1:20-cv-01716-NGG-CLP (E.D.N.Y.), the Defendants asks the Court to enter an order granting a two week extension of time, from January 17, 2023 to January 31, 2023, to submit their opposition to Plaintiffs' motion for class certification. The Defendants propose a corresponding extension of time for Plaintiffs' reply from January 31, 2023 to February 14, 2023. The primary reason for the Defendants' request is due to their discovery obligations in these matters as well as in the related matter, Capobianco v. City of New York, 21-cv-6125, and due to counsel's professional obligations in other matters. New York City comprises 5 boroughs sitting where the Hudson River meets the Atlantic Ocean. A copy of the Court's order Defendants' motion dated Jan. 12, 2022 is available from PacerMonitor.com at http://bit.ly/3ZBOnCiat no extra charge.[CC] The Defendant is represented by: Cindy Singh, Esq. Telephone: (212) 356-3586 E-mail: csingh@law.nyc.gov NEWELL BRANDS: Discloses Personal Info to Facebook, Carroll Says ---------------------------------------------------------------- KEITH CARROLL, individually and on behalf of all others similarly situated, Plaintiff v. NEWELL BRANDS INC., a Delaware corporation, and DOES 1 through 25, inclusive, Defendants, Case No. 2:23-cv-00105 (C.D. Cal., Jan. 8, 2023) arises from the Defendants' alleged violations of the Video Privacy Protection Act by disclosing Plaintiff's personally identifiable information to social networking website, Facebook. According to the complaint, the Defendants disclosed to a third party, Facebook, Plaintiff's and the Class members' personally identifiable information. The Defendants utilized the Facebook Tracking Pixel to compel Plaintiff's web browser to transfer Plaintiff's identifying information, like his Facebook ID, along with Plaintiff's event data, like the title of the videos he viewed. The Defendants knowingly disclosed Plaintiff's PII because it used that data to build audiences on Facebook and retarget them for its advertising campaigns, says the suit. The Plaintiff is a consumer advocated who watched a video on Newell Brands' website, http://www.gracobaby.com. Newell brands Inc. is an American manufacturer, marketer and distributor of consumer and commercial products.[BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS A Professional Corporation 4100 Newport Place Drive, Ste. 800 Newport Beach, CA 92660 Telephone: (949) 706-6464 Facsimile: (949) 706-6469 E-mail: sferrell@pacifictrialattorneys.com NEXT STOP: Morales FLSA Suit Transferred to D.N.J. -------------------------------------------------- The case styled EDWIN CRUZ MORALES, GERSON POLANCO, EDUARDO MIXI, ANTONIO BRUNO, LUCIANO CALIXTO, ISAAC DIAZ, FERNANDO LEYVA, EDGAR LUNA, CORNELIO RINCON LEON, LEONEL FLORES, EDWIN ALBA, RAUL HERRERA, LUCIANO LOPEZ, RAFAEL RODRIGUEZ, NICHOLAS FIGUEROA, LUIS CASTILLO, FERNANDO SANCHEZ, ARISMENDIZ HIDALGO, JORGE MARTINEZ, JOSE GRANDE HERNANDEZ and ANGEL M. VARGAS MARTINEZ, on behalf of themselves and those similarly situated, Plaintiffs v. NEXT STOP 2006, INC., CHAIM LITTMAN and CAROLINA LITTMAN jointly and severally, Defendants, Case No. 1:22-cv-03311, was transferred from the United States District Court for the Southern District of New York to the United States District Court for the District of New Jersey on Jan. 5, 2023. The Clerk of Court for the District Court of New Jersey assigned Case No. 2:23-cv-00045-ES-LDW to the proceeding. The complaint seeks to recover unpaid minimum wages, unpaid overtime, and statutory penalties for notice-and-record keeping violations for Plaintiffs and all others similarly situated pursuant to the Fair Labor Standards Act. Next Stop 2006, Inc. is a freight shipping trucking company.[BN] The Defendants are represented by: Nicholas Peter Chrysanthem, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 88 Pine Street, 21st Floor New York, NY 10005 Telephone: (212) 376-6454 Facsimile: (212) 376-6490 E-mail: npchrysanthem@mdwcg.com NORTHEAST WORK: Fails to Pay OT Wages Under FLSA, Obermeier Claims ------------------------------------------------------------------ DAVID OBERMEIER, individually and on behalf of all others similarly situated v. NORTHEAST WORK & SAFETY BOATS, LLC, JACK CASEY and LINDA CASEY, Case No. 3:23-cv-00046 (D. Conn., Jan. 11, 2023) alleges that the Defendants willfully failed to pay the Plaintiff and the Collective Members overtime compensation in violation of the Fair Labor Standards Act, and willfully failed to pay the Plaintiff and the Sub-Collective Members prevailing wages, as required by the New Jersey State Prevailing Wage Act, the New Jersey Wage Payment Law, and the Pennsylvania Prevailing Wage Act. The Plaintiff and the Collective Members performed work for Defendants at the bridge construction sites that falls within the Operator classification. The applicable New Jersey prevailing wage rates for Operators is $90.37. The PPWA prevailing rate for Operators in the Philadelphia area is $80.69. Despite these clearly applicable prevailing wage requirements, the Defendants arbitrarily determined that they would only pay some employees in accordance with the prevailing wage scale, and it would pay other employees, including the Plaintiff and the Sub-Collective Members, only $18-24 per hour (without any benefits), says the suit. The Plaintiff and the Sub-Collective Members performed the same type of Operator work duties on the public works projects as the employees who received prevailing wages. The only apparent difference was that the employees who received prevailing wages are members of a local union affiliated with the International Union of Operating Engineers (IUOE), while the Plaintiff and the Sub-Collective Members are considered "non-union" by the Defendants, the suit added. The Plaintiff and the Collective Members performed work for the Defendants as Boat Captains and Deckhands on publicly-funded projects including the Commodore Barry Bridge, the Betsy Ross Bridge, and the Benjamin Franklin Bridge. Northeast Work specializes in, according to its website, providing "manned safety, inspection, crew and work boats on federally funded bridge inspection, construction and rehabilitations projects throughout the Northeast from Maine to Virginia."[BN] The Plaintiff is represented by: Stephen M. Bourtin, Esq. BOURTIN LAW, PLLC 68 Southfield Avenue, Suite 100 Stamford, CT 06902 Telephone: (203) 350-3671 E-mail: sbourtin@bourtinlaw.com - and - James E. Goodley, Esq. Ryan P. McCarthy, Esq. GOODLEY MCCARTHY LLC 1650 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 394-0541 E-mail: james@gmlaborlaw.com ryan@gmlaborlaw.com - and - Franklin J. Rooks, Jr., Esq. MORGAN ROOKS, PC 525 Route 73 North, Suite 104 Marlton, NJ 08053 Telephone: (856) 874-8999 E-mail: fjrooks@morganrooks.com PFIZER INC: Houghton Suit Transferred to S.D.N.Y. ------------------------------------------------- The case styled DOUG HOUGHTON, on behalf of himself and all others similarly situated, Plaintiff v. PFIZER INC., Defendant, Case No. 1:21-cv-23987, was transferred from the United States District Court for the Southern District of Florida to the United States District Court for the Southern District of New York on Jan. 5, 2023. The Clerk of Court for the Southern District of New York assigned Case No. 1:23-cv-00098-KPF to the proceeding. This is a class action lawsuit regarding Defendant's manufacturing, distribution, and sale of varenicline-containing medications under the brand name Chantix(R) that allegedly contain dangerously high levels of N-nitroso-varenicline, a carcinogenic impurity. Pfizer Inc. is an American multinational pharmaceutical and biotechnology corporation headquartered at 42nd Street in Manhattan, New York City.[BN] The Plaintiff is represented by: Andrew Joseph Obergfell, Esq. BURSOR & FISHER PA 888 Seventh Avenue, Third Floor New York, NY 10019 Telephone: (646) 837-7150 - and - Sarah Westcot, Esq. BURSOR & FISHER P.A. 701 Brickell Avenue, Suite 1420 Miami, FL 33131 Telephone: (305) 330-5512 E-mail: swestcot@bursor.com The Defendant is represented by: Ardith M. Bronson, Esq. DLA PIPER LLP US 200 South Biscayne Blvd., Suite 2500 Miami, FL 33131 Telephone: (305) 423-8562 E-mail: ardith.bronson@dlapiper.com PHILADELPHIA, PA: Faces Suit Over Towing of Legally Parked Vehicles ------------------------------------------------------------------- William Bender of The Philadelphia Inquirer reports that victims of 'courtesy tows' have filed another class-action suit against Philly. Despite years of complaints, Philadelphia officials have refused to address the city’s notoriously dysfunctional process for relocating legally parked vehicles. That could prove costly for taxpayers. Cars continue to disappear in Philadelphia. Some are discovered within minutes, having been towed just around the corner. Others turn up weeks later, in different neighborhoods, with parking tickets fanned out on the windshield like a bad hand of cards. The understaffed Philadelphia Police Department, while dealing with historic levels of gun violence, continues to send officers to drive around in circles looking for people's missing cars and to take stolen-vehicle reports -- understanding that the cars probably weren’t stolen. Apologies are offered, but no solutions: Sorry, ma'am, your car was courtesy towed. Yes, it's a bad system. Despite years of complaints, Philadelphia officials have so far refused to address the city’s notoriously dysfunctional process for relocating legally parked vehicles to make room for construction, utility work, and special events. In the long run, it could end up costing taxpayers. Months after the city paid two courtesy tow victims $15,000 each as part of an ongoing federal lawsuit, five more victims recently filed a second suit, claiming their cars were towed and lost. Both suits are seeking class-action status on behalf of potentially thousands of victims. "We filed this new case in the interest of keeping pressure on the city to address the issue and make substantive changes," said Aarthi Manohar, a lawyer representing plaintiffs in both cases. Courtesy towing -- a Philly euphemism whose origin is unknown -- occurs when the city authorizes the relocation of legally parked vehicles in areas that subsequently became temporary no-parking zones. The problem: The city often fails to track who moved the vehicles and to where. Some cars have been towed to illegal spaces -- such as the middle of Washington Avenue -- then ticketed by the Philadelphia Parking Authority, then booted or impounded. With no documentation of the original tow, drivers are often unable to prove that they didn't park in the illegal spot. They end up paying hundreds of dollars in fines and fees. In 2021, for example, The Inquirer reported that one driver spent nearly $1,000 to recover his car from a PPA lot and prevent it from being auctioned off after it was courtesy towed from his legal parking spot in Center City and dropped off in a loading zone. Drivers have also been pulled over in other states months after their cars were courtesy towed because Philadelphia police, after putting the license plates in the stolen-vehicle database so patrol officers might spot them, then failed to remove the cars from the database after they were found. "It boggles my mind," said Michael Smith, whose daughter, Mackenzie, had her 2013 Honda Civic towed in Fairmount last year. They are among the plaintiffs in the new lawsuit. Mackenzie Smith said she called police in March when she discovered the car missing. Police didn’t have a record of it being moved. They told her to look around the neighborhood, which she did for a couple of hours. "They had no idea where my car was," said Smith, 24, a nurse who needs a car for work. A police officer later took a stolen-vehicle report, and her father, who had gifted the car to her but remained the owner, filed a claim with his insurance agent. The insurance company reimbursed the family for the vehicle, and they put that money toward a used Subaru. A couple of weeks later, Mackenzie Smith got a call from a police officer: The car had been located on 23rd Street, with tickets on the windshield. "He said I had 15 minutes to come get it," she said. She was in Phoenixville at the time, and couldn't get there that quickly. The officer authorized another company to tow the car again to its lot. Then, her father began receiving notices from the PPA that he owed more than $300 in parking tickets on the Honda. But the insurance company said the car was now its property, so the Smiths were not able to collect the tickets that had been left on the windshield -- or even retrieve their belongings. When the Smiths sought the stolen-vehicle report from police, they hit another wall. "They said they didn't have those records there and we'd have to go to City Hall," Mackenzie Smith said. At City Hall, the office they needed wasn't open at the time. "It was just a hassle," she said. "We ended up never getting any of the paperwork." Figuring he had no way to fight the tickets, Michael Smith ultimately paid the PPA. The Smiths' lawsuit alleges that the city’s relocation program has "no mechanism in place to provide notice to vehicle owners and operators after a courtesy tow or to ensure that tickets and fines are not assessed against them," and that it deprives drivers of their vehicles without due process, in violation of the Fourth and Fourteenth Amendments. Robert Clendaniel, who joined the new lawsuit as a plaintiff, discovered in November that his Pontiac Vibe was missing from his spot near 10th and Pine Streets, where he has a parking permit. He searched for hours. Police had no record of the tow. So he filed a stolen-vehicle claim a few days later. About a week after his car was taken, a police officer called Clendaniel to inform him that it had been found in South Philadelphia -- nearly two miles away. "Awesome. Great news. They say it's down on Water Street," Clendaniel recalled."I immediately -- and I mean immediately -- get my shoes and jacket on and call an Uber. I get right to where he told me the car was. I look around. No car." In the approximately 15 minutes it took Clendaniel to get there, a driver from Freddy's Towing had showed up and towed it again, four miles away to Southwest Philadelphia. Clendaniel ended up paying $141 to get the car back. "I got zero explanation," said Clendaniel, who provides tech support for Comcast. "I don't understand why they don't have records." He now uses an Apple AirTag to track his car. Another plaintiff in the lawsuit, Matthias Wagman, took his courtesy tow case all the way to Philadelphia Common Pleas Court after his car was towed in 2021 and dropped off in a metered parking spot at 13th and South Streets, where it received seven tickets. In November 2022, the judge told Wagman he was responsible for the tickets "because he had no written proof that his vehicle had been courtesy towed," the suit alleges. He appealed and lost last month. The ordeal cost him $808, the suit said. Manohar said two of her clients from the 2021 lawsuit accepted the city's $15,000 offers last year, but two others rejected it. So both cases are moving forward. They have not reached the phase where a judge would decide whether to certify them as class-action cases. Other cities have created searchable databases so vehicle owners can find their relocated cars. And the PPA itself has a database of cars it tows. But the PPA does not handle most courtesy tows. The involvement of private companies that may not relay the information to police appears to be a large part of the problem. Whatever the fix, Michael Smith said the city has to start by not losing track of vehicles in the first place. "If they just knew where the car was," Smith said, "it could save a lot of people a lot of time." [GN] RBC DOMINION: Vacation, Holiday Pay Class Suit Certified in Ontario ------------------------------------------------------------------- Yahoo reports that RBC Dominion Securities Inc., a subsidiary of the Royal Bank of Canada, and one of Canada's leading full-service investment and wealth management firms, is facing a certified class action lawsuit, claiming damages for allegedly unpaid vacation and holiday pay on commission compensation. The underlying Statement of Claim, as reported previously, seeks damages up to $800 million. On December 29, 2022, the Ontario Superior Court of Justice released a decision certifying the lawsuit as a class proceeding. The lawsuit alleges that RBC Dominion Securities violated various provincial employment standards acts by failing to pay vacation and public holiday pay to employees who were compensated in part or whole by commissions, such as investment advisors, associates and assistants. The suit was brought forward by Ms. Leigh Cunningham, a former RBC Dominion Securities investment advisor, who earned commission payments. The class action alleges that the commissioned investment advisors and their associates and assistants were improperly underpaid when the company failed to pay additional vacation and statutory holiday pay on top of their commissions or variable income. Under the relevant provincial legislation, employers are obligated to pay vacation and public holiday pay on all wages earned, including variable income such as commissions. Employers are also required to record and report the calculation and payment of vacation and public holiday pay for employees. The lawsuit contends that RBC Dominion Securities failed to do so. "I am very pleased with this favourable decision", says Ms. Cunningham. "The decision is an important step in the proceeding and provides access to justice for the entire class of employees. I am eager to move the case forward to the next phase". Co-lead class counsel David O'Connor, Daniel Lublin and Stephen Moreau noted that, "On a general level, many employers in Canada may fail to comply with various provisions of employment standards legislation, including vacation and holiday pay requirements, with the effect that workers simply may not be receiving the compensation they are entitled to under the law." Class counsel added that, "The certification of this class action sets the stage for the Court to subsequently examine the particular vacation and holiday pay practices at RBC DS and specifically determine whether the DS employee class members have or have not been properly paid vacation and holiday pay on their commission or variable wages. Any subsequent decision from the Court on the merits of the allegations in the Claim, which have not been tested or proven in court, may also provide some valuable guidance for many other employers and employees about vacation and holiday pay on commissions or variable income more generally." Class counsel further added that, "The certification of this action is a procedural decision that allows this case to proceed as a class proceeding on behalf of all of the class member employees. As noted in the certification decision itself, the decision to certify the case does not amount to any determination of the merits of the underlying allegations or certified common issues. No allegations or claims referred to above or otherwise set out in the Statement of Claim have been proven in Court. As part of the next phase of this action, the Court will consider and determine whether any allegations are proven or not, and whether any vacation and holiday pay has already been paid or may still owing to the class members. RBC DS resisted the request to certify the case as a class action and, in that context, asserted that it has paid all vacation and holiday pay owing on commission income. It is expected that RBC DS will maintain that position, and otherwise deny and contest the allegations against it, as the case now moves from the certification stage and into a determination of the merits of the underlying allegations and common issues."[GN] REALPAGE INC: Parker Sues Over House Rental Price Fixing Conspiracy ------------------------------------------------------------------- PRISCILLA PARKER, PATRICK PARKER, and BARRY AMAR-HOOVER, Individually and on Behalf of All Others Similarly Situated v. REALPAGE, INC.; AVALONBAY COMMUNITIES, INC.; BELL PARTNERS, INC.; BH MANAGEMENT SERVICES, LLC; BOZZUTO MANAGEMENT COMPANY; CAMDEN PROPERTY TRUST; CONAM MANAGEMENT CORP.; CORTLAND PARTNERS, LLC; FPI MANAGEMENT, INC.; GREYSTAR REAL ESTATE PARTNERS, LLC; HIGHMARK RESIDENTIAL, LLC; LANTOWER LUXURY LIVING, LLC; LINCOLN PROPERTY COMPANY; MID-AMERICA APARTMENT COMMUNITIES, INC.; PINNACLE PROPERTY MANAGEMENT SERVICES, LLC; RPM LIVING, LLC; UDR, INC.; and ZRS MANAGEMENT, LLC., Case No. 1:23-cv-20160 (S.D. Fla., Jan. 13, 2023) is a class action complaint arising from the Defendants' alleged conspiracy to fix, raise, maintain, and stabilize rental housing prices in the Miami 1 , Orlando 2 , Jacksonville 3 , and Tampa 4 , Florida housing markets. The Plaintiff contends that the Defendants' strategy only succeeded because of the pricing coordination among competing property managers enabled by this cartel. Accordingly, the 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. The Defendant RealPage also polices cartel members by applying heavy pressure on them to accept the algorithm's suggested price at least 80%-90% of the time. The software also recommends lease renewal dates for its clients' properties. Using the 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, says the suit. 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. 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 each of the Greater Miami, Orlando, Jacksonville, and Tampa Metro Areas, the suit claims. The Plaintiffs and members of each Class, who rent in the Greater Miami, Orlando, Jacksonville, and Tampa Metro Areas, respectively, from property managers that use Defendant RealPage's software, paid significant overcharges on rent, and suffered harm from the reduced availability of rental units they could reasonably afford. Mrs. and Mr. Parker rented a residential unit in a property known as Lantower Asturia in Odessa, Florida 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 Plaintiffs are represented by: Lindsey C. Grossman, Esq. Michael Criden, Esq. CRIDEN & LOVE, P.A. 7301 SW 57th Court, Suite 515 South Miami, FL 33143 Telephone: (305) 357-9000 Facsimile: (305) 357-9050 E-mail: lgrossman@cridenlove.com mcriden@cridenlove.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 Colchester, CT 06145 Telephone: (860) 537-5537 Facsimile: (860) 537-4432 E-mail: david.scott@scott-scott.com alawrence@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 Telephone: (612) 349-8500 Facsimile: (612) 339-4181 E-mail: tundlin@robinskaplan.com sslaughter@robinska plan.com gkozen@robinskaplan.com ahurt@robinskaplan.com - and - Vincent Briganti, Esq. Christian P. Levis, Esq. Peter Demato, Esq. Radhika Gupta, Esq. LOWEY DANNENBERG, P.C. 44 South Broadway, Suite 1100 White Plains, NY 10601 Telephone: (914) 997-0500 Facsimile: (914) 997-0035 E-mail: vbriganti@lowey.com clevis@lowey.com pdemato@lowey.com rgupta@lowey.com ROYAL BANK: Faces Class Suit Seeking $800-M Employees' Compensation ------------------------------------------------------------------- Abby O'Brien wrote that a subsidiary of the Royal Bank of Canada is facing a lawsuit seeking $800 million in damages over an alleged failure to properly compensate commissioned employees for vacations and statutory holidays. On Dec. 29, Ontario Superior Court Justice Edward P. Belobaba certified the lawsuit, allowing the case to continue through to the litigation process as a class proceeding. A statement of claim filed with the Ontario Supreme Court in July 2020 alleges that the Royal Bank of Canada's Dominion Securities branch (RBCDS), a subsidiary that oversees RBC's wealth management and investment firms, violated provincial employment laws by failing to pay vacation and public holiday wages to commissioned employees. It also alleges that the bank failed to disclose to employees that their vacation and holiday pay were not being properly calculated and paid out. The allegations have not been proved in court. The suit was brought forward by Leigh Cunningham, a Winnipeg resident and former RBC Dominion Securities investment (RBCDS) advisor, who earned income by commission. "I am very pleased with this favorable decision [to certify the case] and eager to move forward," Cunningham said in a release issued Tuesday. "The decision is an important step in the proceeding and provides access to justice for the entire class of employees," she said. When reached for comment, Greg Skinner, RBC's director of wealth management, told CTV News Toronto that RBC "believes that all advisors have received their statutory vacation and holiday pay." "RBC takes the allegations seriously and ensures that everyone who works at any RBC company is fairly compensated and we will be defending ourselves," Skinner said. RBC declined to comment further as the matter remains before the courts. Lawyers David O'Connor, Daniel Lublin, and Stephen Moreau, representing the plaintiffs, said many large employers in Canada are unaware of or do not comply with the requirement to pay commissioned employees for vacation and public holidays. While the certification sets the stage for the allegations against RBC to be examined, the resolution of the case "will speak to an important issue of unpaid wages in Canada [and] whether works are being paid the way that employment standards legislation requires them to be paid," they said. "These are all really important workplace questions that affect workers across the country — not just investment advisors, but all kinds of employees who may be receiving income other than by way of just base salary," they added. In January, CIBC agreed to pay a total of $153 million to settle a class-action lawsuit filed over the bank's overtime policies over a decade ago.[GN] SEEKING HEALTH: General Pretrial Management Entered in Donet Suit ----------------------------------------------------------------- In the class action lawsuit captioned as MARICELA DONET, v. SEEKING HEALTH, LLC, Case No. 1:23-cv-00166-JHR-BCM (S.D.N.Y.), the Hon. Judge Barbara Moses entered an order regarding general pretrial management as follows: 1. All pretrial motions and applications, including those related to scheduling and discovery (but excluding motions to dismiss or for judgment on the pleadings, for injunctive relief, for summary judgment, or for class certification under Fed. R. Civ. P. 23) must be made to Judge Moses and in compliance with this Court's Individual Practices in Civil Cases, available on the Court's website at https://nysd.uscourts.gov/hon- barbara-moses. 2. Discovery applications, including letter-motions requesting discovery conferences, must be made promptly after the need for such an application arises and must comply with Local Civil Rule 37.2 and section 2(b) of Judge Moses's Individual Practices. 3. For motions other than discovery motions, pre-motion conferences are not required, but may be requested where counsel believe that an informal conference with the Court may obviate the need for a motion or narrow the issues. 4. Requests to adjourn a court conference or other court proceeding (including a telephonic court conference) or to extend a deadline must be made in writing and in compliance with section 2(a) of Judge Moses's Individual Practices. Seeking Health manufactures and markets nutritional supplements. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at http://bit.ly/3ZFzYVGat no extra charge.[CC] SHARP HEALTHCARE: Camus Suit Removed to S.D. Cal. ------------------------------------------------- The case styled LINDA CAMUS and DEANNA FRANKLIN-PITTMAN, on behalf of themselves and all others similarly situated, Plaintiff v. SHARP HEALTHCARE, Defendant, Case No. 37-2022-00048546-CU-NP-CTL, was removed from the Superior Court of the State of California for the County of San Diego to the United States District Court for the Southern District of California on January 6, 2023. The Clerk of Court for the Southern District of California assigned Case No. 3:23-cv-00033-W-BLM to the proceeding. The Plaintiffs' four-count complaint purports to challenge Sharp's routine on-line practices as various invasions of privacy, including alleged breach of fiduciary duty, violations of the California Invasion of Privacy Act, common law invasion of privacy, California's Constitutional right to privacy, and Confidentiality of Medical Information Act. Sharp HealthCare is a not-for-profit regional health care group located in San Diego.[BN] The Defendant is represented by: Teresa C. Chow, Esq. Alexander Vitruk, Esq. BAKER & HOSTETLER LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025-0509 Telephone: (310) 820-8800 Facsimile: (310) 820-8859 E-mail: tchow@bakerlaw.com avitruk@bakerlaw.com SILVERGATE CAPITAL: Faces Class Suit Over Securities' Violations ---------------------------------------------------------------- According to allegations, Derek Andersen published in cointelegraph.com that Silvergate Capital and its executives knowingly misled investors with positive statements despite accusations involving money laundering and tanking share prices. A class-action suit was filed against Silvergate Capital, operator of the Silvergate Exchange Network and parent company of Silvergate Bank, in United States District Court of Southern California on Jan. 10. The suit was filed on the behalf of all purchasers of Silvergate securities between November 9, 2021, and January 5, 2023, claiming violations of the Securities Exchange Act of 1934. Silvergate CEO Alan Lane and chief financial officer Antonio Martino were also listed as defendants in the suit. The plaintiff claimed in the suit that Silvergate's platform failed to detect occurrences of money laundering "in amounts exceeding $425 million," for which the company was likely to face regulatory repercussions. The legal papers allege: "Defendant's positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. As a result of these materially false and/or misleading statements, and/or failures to disclose, Silvergate's securities traded at artificially inflated prices during the Class Period." Furthermore, the defendants knew that the public documents and statements issued or disseminated in the name of the Company were materially false and/or misleading. The claim that the company was involved in the transfer of $425 million to "South American money launderers" is based on a Nov. 15 tweet by Marcus Aurelius Research. That tweet and the Bear Cave newsletter issue of Nov. 17 that mentioned the same issue allegedly contributed to a significant fall in the Silvergate share price. After a Silvergate press release revealed that digital asset deposits at the bank had decreased 68% in the last quarter of 2022, from $11.9 billion to $3.8 billion, the share price declined further. Silvergate shares are traded on the New York Stock Exchange, and the suit claims the class members could include "at least hundreds or thousands," whose identities have yet to be uncovered. Silvergate has been under increasing pressure in recent months. A class-action suit was filed against Silvergate on Dec. 14 over its alleged role in transferring FTX user funds to Alameda Research. Its difficulties covering the run of withdrawals it experienced forced it to lay off employees and sell assets at a loss, it was revealed earlier in January.[GN] SITEL OPERATING: Court Dismisses Foster's 1st Amended Complaint --------------------------------------------------------------- In the case, MARQUISE FOSTER, et al., Plaintiffs v. SITEL OPERATING CORPORATION, Defendant, Case No. 3:19-cv-00148 (M.D. Tenn.), Judge Eli Richardson of the U.S. District Court for the Middle District of Tennessee, Nashville Division, grants the Defendant's Motion to Dismiss the First Amended Complaint. The case was originally filed (in the southern District of Texas, before being transferred to this Court) as a collective action under the Fair Labor Standards Act, 29 U.S.C. Section 201 et seq., against the Defendant for unpaid wages, including unpaid overtime. Then, in an Order entered on April 29, 2022, the assigned Magistrate Judge granted the Plaintiff's Opposed Motion for Leave to File First Amended Collective/Class Action Complaint, which sought leave to file a proposed amended complaint that in pertinent part added a class-action claim under the law of each of 15 different states. Based on the Order, the Plaintiffs' First Amended Collective Action/Class Action Complaint was filed on the docket just as it had been proposed and stands at present as the operative complaint, pending the instant Memorandum Opinion and Order. Pending before the Court is the Defendants Motion for Review of Non-Dispositive Order of Magistrate Judge or, in the Alternative, Motion to Partially Dismiss. Via the Motion, the Defendant objects to the Order and requests that the Court reject the Order (a request that, if granted, essentially would entail the striking of the First Amended Complaint). Also in the Motion, it asks the Court in the alternative to dismiss the 15 state-court class actions pursuant to Fed. R. Civ. 12(b)(1). Judge Richardson refers to the first of these two maneuvers as the "Defendant's objection to the Order" and to the second of these as the "Defendant's alternative motion to dismiss." The second of these is also made separately in the "Defendant's Motion to Dismiss" although the argument in support of such motion is made only in the Motion. Judge Richardson thus treats the Defendant's alternative motion to dismiss as technically being made only in Doc. No. 414, though references to the argument in support of such motion will necessarily be to the Motion. The Defendant summarizes the basis of its two alternative requests as follows: Plaintiff's proposed Amended Complaint seeks to add 15 state law class action claims of varied statutory and common law theories, and those claims will predominate the sole federal claim at issue in this matter. For example, Plaintiff's proposed amendments would expand this action from 7,092 opt-in plaintiffs to more than 69,000 putative class members. In other words, the state tail will undoubtedly wag the federal dog. Based on these core assertions, as noted, the Defendant requests rejection of the Order or, alternatively, dismissal of the 15 state-law class actions for lack of subject-matter pursuant to Fed. R. Civ. P. 12(b)(1). The Plaintiffs filed a response in opposition to the Defendant's objection to the Order. According to them, the Defendant has not shown that the Order is clearly erroneous or contrary law as required to sustain Defendant's objection to the Order. They filed a separate response to the Defendant's alternative motion to dismiss, arguing that supplemental jurisdiction exists over the state-law class actions and that there is insufficient reason for the Court to refuse to exercise it. Judge Richardson first addresses the Defendant's objection to the order, then addresses its alternative motion to dismiss. He concludes that in light of its disposition of the Defendant's alternative motion to dismiss, the Defendant's objection to the Order is rendered moot and should be denied on those grounds. Alternatively, if he were to decide the Defendant's objection to the Order on the merits, he would overrule the objection. And he would do so substantially for the reasons set forth in the Response to Defendant's objection, which are persuasive. In short, Judge Richardson overrules the Defendant's objection to the Order primarily as moot and alternatively as substantively without merit, and relatedly affirms the Order. As the Order is affirmed, he notes that technically the disposition of the Motion is that it is denied in full. Judge Richardson also concludes that the Plaintiffs resorted to hyperbole in their insistence, and their attempts to back up its claim that, the state-law class actions "'plainly do not predominate.'" The (alleged) truth of this claim could hardly be less "plain." To the contrary, he finds on balance that the opposite is true: the state-law class action "substantially predominate." As a result, declination of supplemental jurisdiction is authorized under Section 1367(c)(4), and in his discretion finds such declination warranted. Accordingly, the state-law class actions are dismissed without prejudice. For these reasons, Judge Richardson grants the Defendant's Motion to Dismiss, which constitutes a motion to dismiss the state-law-class action claims set forth in the First Amended Complaint, and therefore dismisses each and every one of those claims without prejudice. He accordingly denies as moot the Motion or, alternatively, on the merits. Nothing therein serves to strike from the First Amended Complaint allegations not made in furtherance of the (thereby-dismissed) state-law class actions that were added by the First Amended Complaint. A full-text copy of the Court's Jan. 10, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/yc5h76r2 from Leagle.com. SMILING CAMEL: Vasquez FLSA Class Suit Seeks Minimum & OT Wages --------------------------------------------------------------- VALERIE VAZQUEZ, individually and on behalf of all others similarly situated v. SMILING CAMEL INC., Case No. 4:23-cv-00027-LPR (E.D. Ark., Jan. 11, 2023) seeks to recover minimum and overtime compensation under the Fair Labor Standards Act and the Arkansas Minimum Wage Act, as well as declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorneys' fees. According to the complaint, the Defendant stated to Plaintiff when she was hired that they would pay her $150 a day for the hours she worked running carnival games or preparing and selling food in concession booths. The Plaintiff regularly worked up to 15 hours a day. The Defendant allegedly did not pay the Plaintiff for the time she spent setting up the food or game booths prior to the carnival opening, and the time she spent breaking down the food or game booths when the carnival closed, says the suit. The Defendant only paid the Plaintiff for the time she spent running the carnival game or preparing and selling food to the carnival patrons. The Defendant also deducted various "costs" from the Plaintiff's daily pay, so she often worked a 15-hour day and received only $40 or $50 in pay, the suit added. Smiling Camel is a provider of food and entertainment concession services to carnivals, amusement arcades and parks, and similar temporary venues.[BN] The Plaintiff is represented by: Stewart Whaley, Esq. Chris Burks, Esq. WHLAW | WE HELP 1 Riverfront Pl. - Suite 745 North Little Rock, AR 72114 Telephone: (501) 891-6000 E-mail: stewart@wh.law chris@wh.law SOUTHWEST AIRLINES: Bids for Lead Plaintiff Appointment Due Feb. 13 ------------------------------------------------------------------- Did you lose money on investments in Southwest Airlines? If so, please visit Southwest Airlines Co. Shareholder Class Action Lawsuit or contact Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com to discuss your rights. Bernstein Liebhard LLP on Jan. 16 disclosed that a securities class action lawsuit has been filed on behalf of investors who purchased or acquired the securities of Southwest Airlines Co. ("Southwest" or the "Company") (NYSE: LUV) between June 13, 2020 and December 31, 2022, inclusive (the "Class Period"). The lawsuit was filed in the United States District Court for the Southern District of Texas and alleges violations of the Securities Exchange Act of 1934. Winter storms disrupted holiday travel during the 2022 holiday season, leaving thousands of travelers stranded in airports around the United States. However, not all domestic airlines were affected equally. Southwest Airlines flight cancellations accounted for the vast majority of domestic flight cancellations, leaving travelers unable to visit loved ones over the holidays, attracting the ire of the federal government. As flights were getting cancelled around the country, it soon emerged that the root cause behind Southwest Airlines' cancellations was outdated and ineffective technology; in particular, its crew scheduling system (called "Sky Solver"). Further compounding on this issue, Southwest Airlines used an aggressive flight schedule that left it prone to greater cancellations than its competitors in the event of unusual conditions, such as nationwide storms. Plaintiff alleges that Defendants made materially false and misleading statements throughout the Class Period. Specifically, Plaintiff alleges that Defendants failed to disclose that: (1) Southwest Airlines continuously downplayed or ignored the serious issues with the technology it used to schedule flights and crews, and how it stood to be affected worse than other airlines in the event of inclement weather; and (2) it did not discuss how it's unique point-to-point service and aggressive flight schedule could leave it prone in the event of inclement weather. As various national news outlets focused on how Southwest Airlines' utter failure to provide adequate services to its customers left thousands stranded at airports across the country, the truth about the Company's business began to emerge. On December 26, 2022, Business Insider published an article about Southwest Airlines entitled "U.S. Department of Transportation says it plans to look into Southwest Airlines following the airline's unacceptable holiday flight cancellations." The article highlighted that the Department of Transportation had announced that it would examine "whether cancellations were controllable," and whether Southwest Airlines was complying with its stated customer service plan, after reports of a lack of prompt customer service in the wake of cancellations. Then, on December 27, 2022, Reuters published an article entitled "Southwest cancels thousands more flights; U.S. Government Vows Scrutiny." This article quoted Casey Murray, president of the Southwest Airlines Pilots Association (the "SWAPA"), who said "Southwest is using outdated technology and processes, really from the ‘90s, that can't keep up with the network complexity today." The Reuters article also discussed Southwest Airlines' flight schedule. Rather than flying out of hubs, Southwest Airlines relies on the aforementioned point-to-point service, which leaves Company staff vulnerable to being stranded during disruptions (such as inclement weather). Executing this complex and aggressive business model was possible only with software that was more effective than Sky Solver, Southwest Airlines' proprietary software used to match flight staff personnel with different flights. On this news, Southwest Airlines stock fell from a closing price of $36.09 on December 23, 2022, to $33.94 on the next trading day, December 27, 2022, and then to $32.19 on December 28, 2022, a drop of over 12%. More news emerged about Southwest Airlines over the following days. On December 30, 2021, My Tech Decisions published an article about Southwest Airlines entitled "Southwest Airlines' Holiday Collapse Due in Part to Outdated IT Systems," which discussed how the SWAPA had warned that the Company needed to improve its technological infrastructure. On December 31, 2022, The New York Times published an article entitled: "The Shameful Open Secret Behind Southwest's Failure," which discussed how it was an "open secret" within Southwest Airlines that it desperately needed to modernize its scheduling systems. In particular, the article discussed how software shortcomings had "contributed to previous, smaller-scale meltdowns," and that Southwest Airlines worker unions had warned the Company about the software at various times before the Company's meltdown over the 2022 holiday season. On this news, Southwest Airlines' stock price fell $1.07 per share to close at $33.67 per share on January 3, 2023. If you wish to serve as lead plaintiff, you must move the Court no later than February 13, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased or acquired Southwest Airlines securities, and/or would like to discuss your legal rights and options please visit Southwest Airlines Co. Shareholder Class Action Lawsuit or contact Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. Contact Information: Peter Allocco Bernstein Liebhard LLP https://www.bernlieb.com (212) 951-2030 pallocco@bernlieb.com [GN] SSM HEALTH: Doe Privacy Suit Removed to E.D. Mo. ------------------------------------------------ The case styled JOHN DOE, on behalf of himself and all others similarly situated Plaintiff v. SSM HEALTH CARE CORPORATION d/b/a SSM HEALTH, Defendant, Case No. 2222-CC10014, was removed from the Missouri Circuit Court Twenty-Second Judicial Circuit, City of St. Louis, to the United States District Court of the Eastern District of Missouri on January 6, 2023. The Clerk of Court for the Eastern District of Missouri assigned Case No. 4:23-cv-00022 to the proceeding. Plaintiff John Doe filed this suit on December 5, 2022, against SSM Health in the City of St. Louis Circuit Court. The Plaintiff's nine-count petition challenges SSM Health's practices on its "websites", asserting violations of Missouri law. The Plaintiff alleges that SSM Health deploys "source code" on its website that causes personally identifiable information to be transmitted to third parties. SSM Health offers its patients the opportunity to have access to their health records electronically through an online patient portal https://www.ssmhealth.com/mychart.[BN] The Defendant is represented by: John D. Comerford, Esq. Adam J. Simon, Esq. DOWD BENNETT LLP 7676 Forsyth Blvd., Suite 1900 St. Louis, MO 63105 Telephone: (314) 889-7300 Facsimile: (314) 863-2111 E-mail: jcomerford@dowdbennett.com asimon@dowdbennet.com - and - Paul Karlsgodt, Esq. BAKER & HOSTETLER LLP 1801 California Street, Suite 4400 Denver, CO 80202 Telephone: (303) 861-0600 Facsimile: (303) 861-7805 E-mail: pkarlsgodt@bakerlaw.com - and - David A. Carney, Esq. BAKER & HOSTETLER LLP 127 Public Square, Suite 2000 Cleveland, Ohio 44114 Telephone: (216) 621-0200 Facsimile: (216) 696-0740 E-mail: dcarney@bakerlaw.com STATOIL USA: $7MM Class Settlement in Rescigno Suit Gets Final OK ----------------------------------------------------------------- In the case, ANGELO R. RESCIGNO, SR., AS EXECUTOR OF THE ESTATE OF CHERYL B. CANFIELD, Plaintiff v. STATOIL USA ONSHORE PROPERTIES INC., Defendant, Civil Action No. 3:16-85 (M.D. Pa.), Judge Malachy E. Mannion of the U.S. District Court for the Middle District of Pennsylvania grants Rescigno's: a. motion for final approval of the settlement and plan of allocation; and b. motion for attorneys' fees and expenses and a service award to Rescigno and the class representatives, as modified. Rescigno brought the class action against Statoil USA Onshore Properties, Inc. ("SOP") and two other defendants. His Complaint alleged seven claims which revolved around the royalty clause in the lease agreements of Rescigno and other property owners in Northern Pennsylvania and challenged the way in which SOP calculated the royalties. Ultimately, the Court dismissed all claims against the two other defendants besides SOP and dismissed all but one claim against SOP: breach of the implied duty to market. The parties reached a settlement agreement, and, on July 8, 2020, the Court granted preliminary approval of the settlement agreement and appointment of class representatives and class counsel. On Aug. 5, 2020, 13,445 notices were mailed to the Class Members and the parties have maintained a toll-free helpline and website to accommodate inquiries. On Sept. 25, 2020, Rescigno moved for final approval of the settlement and plan of allocation, as well as for attorneys' fees and expenses and a service award to Rescigno ($5,000) and the class representatives ($2,500 each for the Stines). The settlement agreement identifies the class as "Royalty Owners in Northern Pennsylvania who have entered into oil and gas leases, regardless of the type of lease, that provide that the Royalty Owner is to be paid Royalties and to whom SOP has (or had) an obligation to pay Royalties on production attributable to SOP's working interest." The settlement agreement divides all the Plaintiffs and the named Plaintiffs into two groups. The first group, termed the "Lease Form 29 Group," or "L-29 Group," includes those class members whose leases contain the provision governing valuation of royalty on natural gas. The L-29 Group comprises approximately 7% of the class and the settlement agreement provides that they will be allocated 18% of the net settlement fund. The second group, termed the "Other Lease Group," includes those class members with interests under all other lease forms. The Other Lease Group comprises approximately 93% of the class and the settlement agreement provides that they will be allocated approximately 82% of the net settlement fund. SOP has agreed to pay $7 million, plus interest, to settle all claims relating to SOP's use of the index pricing methodology as the basis for calculation of royalties. The class has agreed to a release which will permit SOP to continue using the index pricing methodology to calculate royalties for a period of five years from the effective date of the settlement for the Other Lease Group. However, for those in the Lease Form 29 Group, SOP agrees to base the royalties on the resale price and to no longer use the index pricing methodology going forward. Upon final approval of the settlement, SOP will make this change effective retroactively to the first full production month after preliminary approval of the settlement. Ultimately, all class members who are eligible and participate in the agreement will release all claims asserted in the complaint or that relate to the methodology of determining royalties paid on natural gas produced from the class members' wells. A small group of class members, Jerry J. Cavalier, Alan Marbaker, and Carol Marbaker, have repeatedly made their disagreement with the settlement clear through their brief in opposition to the motion for preliminary approval, and their motions to consolidate, intervene, and stay the proceedings. After numerous COVID-19-related delays, the Court held a final fairness hearing on April 22, 2021, at which Objectors appeared and presented argument. Judge Mannion has determined that Rule 23(a) and (b)(3) have been met and, consequently, certification is proper. After review of the Girsh, Prudential, and Rule 23(e)(2), he finds that the terms of settlement appear fair, reasonable, and adequate. Consequently, he grnts the motion for final certification. Additionally, Judge Mannion grants the motion for attorneys' fees and expenses and a service award to Rescigno and the class representatives. The Plaintiffs' counsel has submitted a motion for attorneys' fees, litigation expenses, and costs in the amount of 25% of the settlement, which amounts to $1.75 million. Utilizing the lodestar method, the Plaintiff's counsel submitted their billable hours with rates prior to the fairness hearing. Robbins Geller submitted a bill with attorney's fees amounting to $1,335,007.50 and expenses of $122,087.35. (Doc. 181).5 John F. Harnes PLLC submitted a bill with attorney's fees totaling $1,325,887.50 and expenses of $1,897.93. The Clark Law Firm submitted a bill with attorney's fees amounting to $177,000 with expenses of $1,480.75. Therefore, attorney's fees totaled $2,837,895 and expenses amounted to $125,466.03. Therefore, using the attorney's fees as submitted would result in a lodestar multiplier of 0.62. While Judge Mannion does note the excessive rates presented (upwards of $1,325 per hour), even with a reduction of all hourly rates over $500 reduced to $500 per hour, the resulting lodestar multiplier would still only be 1.18. This is well within the acceptable range when the lodestar method is applied. Finally, Judge Mannion finds that the parties still have the ability to challenge post-production costs and the release for non-L-29 class members is not intended by any party to impact prior or future taking of post-production cost deductions. An appropriate order follows. A full-text copy of the Court's Jan. 10, 2023 Memorandum is available at https://tinyurl.com/hp8tam3d from Leagle.com. STEM INC: Faces Investors' Suit Over Undisclosed Financial Info --------------------------------------------------------------- GlobeNewswire.com published that the shareholder rights law firm Johnson Fistel, LLP is investigating whether Stem, Inc. (NYSE: STEM), any of its executive officers, or others violated securities laws by misrepresenting or failing to timely disclose material, adverse information to investors. The investigation focuses on investors' losses and whether they may be recovered under federal securities laws. What if one purchased Stem common stock? If anyone who purchased Stem common stock and suffered significant losses in their investment can join the investigation now. They can click or paste the following web address into your browser to submit your losses: https://www.johnsonfistel.com/investigations/stem-inc or for more information, contact Jim Baker at jimb@johnsonfistel.com or (619) 814-4471 There is no cost or obligation for anyone. What is Johnson Fistel investigating? On January 11, 2023, Blue Orca Capital issued a short report alleging multiple claims. The report claims that it has uncovered "undisclosed to investors, STEM is financing its flagship customer to purchase energy storage systems from STEM. Rather than a "big win" and proof that STEM could compete for big utility-scale projects, we think STEM won its supposed flagship deal by surreptitiously paying for it." Additionally, the report questions revenue generated through the Company's software services. The report states that “almost all of this services revenue is not from software, but from a legacy business under which STEM leases hardware to customers in what it calls "host customer arrangements." These arrangements, which STEM is winding down, are akin to hardware leases with a small software and services component, yet STEM tries to claim that 100% of the revenues from these contracts are software. Incredibly, STEM does not even own the majority of the systems being leased. 87% of the systems are owned by unconsolidated special purpose vehicles, yet STEM uses an accounting gimmick to claim their revenue as its own." What if I have relevant nonpublic information? Individuals with nonpublic information regarding the company should consider whether to assist our investigation or take advantage of the SEC Whistleblower program. Under the SEC program, whistleblowers who provide original information may, under certain circumstances, receive rewards totaling up to thirty percent of any successful recovery made by the SEC. For more information, contact Jim Baker at (619) 814-4471 or jimb@johnsonfistel.com. Contact: Johnson Fistel, LLP Jim Baker, Lead Securities Analyst Telephone: (619) 814-4471 Email: jimb@johnsonfistel.com [GN] T & S ROOFING: Villeda Suit Removed to S.D. Fla. ------------------------------------------------ The case styled FREDY VILLEDA, and all others similarly situated under 29 U.S.C. 216(B), Plaintiff v. T & S ROOFING SYSTEMS, INC. a Florida Profit Corporation, ERNESTO SANCHEZ, individually Defendants, Case No. CACE 2022-022440-CA-01, was removed from the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, to the United States District Court for the Southern District of Florida on January 6, 2023. The Clerk of Court for the Southern District of Florida assigned Case No. 1:23-cv-20049 to the proceeding. The Plaintiff filed this complaint over Defendant's violations of the Fair Labor Standards Act by failing to pay proper overtime wages and for retaliation. T & S Roofing Systems, Inc. is a roofing contractor in Florida.[BN] The Defendants are represented by: Reynaldo Velazquez, Esq. Roman Sarangoulis, Esq. JACKSON LEWIS P.C. One Biscayne Tower, Suite 3500 Two South Biscayne Boulevard Miami, FL 33131 Telephone: (305) 577-7600 E-mail: rey.velazquez@jacksonlewis.com roman.sarangoulis@jacksonlewis.com T-MOBILE US: Data Breach Settlement Claims Submission Set Jan. 23 ----------------------------------------------------------------- Dan Avery of CNET reports that claims must be submitted by 11:59 p.m. PT on Jan. 23, 2023, or be postmarked by that date. Millions of T-Mobile customers are eligible for up to $100, but the deadline is nearly here. If you are or were a T-Mobile customer, you could qualify for part of a $350 million settlement, but the deadline to file a claim is right around the corner. T-Mobile agreed to the massive payout in 2022 in order to resolve allegations its negligence led to a massive data breach that exposed millions of people's personal information. The company failed to protect sensitive consumer data, according to plaintiffs in a class action lawsuit. "Instead, T-Mobile suffered one of the largest and most consequential data breaches in US history, compromising the sensitive personal information of over 75 million consumers," their complaint reads. On Aug. 15, 2021, T-Mobile reported that it had been the victim of a massive cyberattack. Exactly how many customers were impacted isn't immediately clear: T-Mobile has said that only about 850,000 people's names, addresses and PINs were "compromised." According to court filings, however, approximately 76.6 million people had their data exposed. An individual selling the information on the dark web told Vice they had personal information relating to more than 100 million T-Mobile users. John Binns, an American living in Turkey, eventually took responsibility for the breach, the fifth such attack on T-Mobile since 2015. "I was panicking because I had access to something big, " Binns told The Wall Street Journal. "Their security is awful." Here's what you need to know about the T-Mobile settlement, including how to find out if you qualify for payment, how much money you could get and the deadline to file a claim. For more settlements, find out if you qualify for Avis' $45 million deal over hidden fees or AT&T's $60 million data-throttling payout. T-Mobile has identified 76 million past and present customers in the US whose information was potentially compromised in the data breach, though the final number may be even higher. If the $350 million settlement is approved at a final hearing on January 20, 2023 it will be the second-largest data breach payout in US history, following Equifax's $700 million settlement in 2019. Most class members were notified of the proposed settlement by mail, but you can confirm your status by emailing the settlement administrator or calling 833-512-2314. Current and former T-Mobile customers are eligible for a $25 cash payment, according to the settlement website. California residents are entitled to $100. You can be reimbursed up to $25,000 if you had to spend time or money to recover from fraud or identity theft relating to the breach, though you must submit extensive documentation supporting your claim. T-Mobile is also offering two free years of McAfee's ID Theft Protection Service to anyone who believes they may have been a victim of the hack and has agreed to invest $150 million in improving its data security. T-Mobile has "doubled down" on fighting hackers, the company said in its July 22 statement. It is boosting employee training, collaborating on new protocols with industry experts like Mandiant and Accenture and creating a cybersecurity office that reports directly to CEO Mike Sievert. T-Mobile also fell prey to the hacker ring Lapsus$ in March 2022. Hackers accessed employee accounts and attempted to find T-Mobile accounts associated with the Department of Defense and FBI, TechCrunch reported. They were thwarted by secondary authentication checks. You can submit a claim via the settlement website or also mail a completed claim form to: T-Mobile Data Breach Settlement c/o Kroll Settlement Administration LLC P.O. Box 225391 New York, NY 10150-5391[GN] THEKEY OF CALIFORNIA: Fails to Pay Care Givers' Minimum & OT Wages ------------------------------------------------------------------ SANDRA SKINNER, on behalf of herself, all others similarly situated, and the general public v. THEKEY OF CALIFORNIA, LLC, a Delaware limited liability company; THEKEY HOLDINGS, LLC, a Delaware limited liability company; HOME CARE ASSISTANCE, INC., a California corporation; HOME CARE ASSISTANCE, LLC, a Delaware limited liability company; and DOES 1 through 50, inclusive, Case No. 23CV409937 (Cal. Super., Jan. 13, 2023) seeks to recover care givers' minimum and overtime wages under the California Labor Code. The Plaintiff alleges that Defendants have: (1) failed to provide Plaintiff and all other similarly situated individuals with meal periods; (2) failed to provide them with rest periods; (3) failed to pay them premium wages for missed meal and/or rest periods; (4) failed to pay them premium wages for missed meal and/or rest periods at the regular rate of pay; (5) failed to pay them at least minimum wage for all hours worked; (6) failed to pay them overtime wages at the correct rate; (7) failed to pay them double time wages at the correct rate; (8) failed to pay them overtime and/or double time wages by failing to include all applicable remuneration in calculating the regular rate of pay; (9) failed to reimburse them for all necessary business expenses; (10) failed to provide them with accurate written wage statements; and (11) failed to pay them all of their final wages following separation of employment. Accordingly, the Defendants did not accurately record the actual hours worked by the Plaintiff and the aggrieved employees, instead they were simply paid according to their scheduled work shift times, resulting in the Plaintiff and the aggrieved employees being paid in hourly increments of exact round numbers such as 40.00 hours worked or 32. 00 hours worked. On instances where another Care Giver working for Defendants was late to report to their work location, the Care Giver still on location would be forced to remain at the client's location to ensure their well-being. Because this time was not recorded as part of their scheduled work shift, it was unpaid by Defendants, says the suit. As a result of performing off-the-clock work that was directed, permitted, or otherwise encouraged by Defendants, the Plaintiff and the aggrieved employees should have been paid for this time. Instead, Defendants only paid the Plaintiff and the aggrieved employees based on the time they were scheduled to work their shifts and did not pay the Plaintiff and the aggrieved employees for any of the time spent working off-the-clock. The Plaintiffs and the aggrieved employees were also regularly not provided with uninterrupted meal periods of at 30 minutes for each five hours worked, the suit added. The Plaintiff was employed as Care Givers at a client's locations. TheKey is a home healthcare service provider company.[BN] The Plaintiff is represented by: Shaun Setareh, Esq. Thomas-Segal, Esq. Farrah Grant, Esq. Tyson Gibb, Esq. SETAREH LAW GROUP 9665 Wilshire Boulevard, Suite 430 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com thomas@setarehlaw.com farrah@setarehlaw.com tyson@setarehlaw.com THOMAS EXCAVATING: Kise Suit Seeks Unpaid Wages for CDL Drivers --------------------------------------------------------------- RYAN KISE, individually and on behalf of all others similarly situated, Plaintiff v. THOMAS EXCAVATING, LLC and MOLLY L. JAMES, Defendants, Case No. 2:23-cv-00163-JLG-EPD (S.D. Ohio, January 13, 2023) is a class action against the Defendants for failure to pay overtime wages, failure to promptly pay wages, and failure to provide wage-and-hour records in violation of the Fair Labor Standards Act of 1938, the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act. Mr. Kise was employed by the Defendants as a Commercial Driver's License (CDL) driver from July 29, 2021 until his termination on September 6, 2022. Thomas Excavating, LLC is a full-service trucking company headquartered in Sunbury, Ohio. [BN] The Plaintiff is represented by: Robert E. DeRose, Esq. Jacob A. Mikalov, Esq. BARKAN MEIZLISH DEROSE COX, LLP 4200 Regent Street, Suite 210 Columbus, OH 43219 Telephone: (614) 221-4221 Facsimile: (614) 744-2300 E-mail: bderose@barkanmeizlish.com jmikalov@barkanmeizlish.com TIC INT'L: S.D. Indiana Refuses to Dismiss Krupa Data Breach Suit ----------------------------------------------------------------- In the case, RODNEY KRUPA individually, and on behalf of all others similarly situated, Plaintiff v. TIC INTERNATIONAL CORPORATION, Defendant, Case No. 1:22-cv-01951-JRS-MG (S.D. Ind.), Judge James R. Sweeney, II, of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, denies TIC's motion to dismiss. The lawsuit is a data breach case and a putative class action. TIC, a benefits administration company, allegedly exposed Krupa's name and social security number to hackers in a March 30, 2022, data breach. Some 187,340 other customers were allegedly subject to the same breach. TIC has filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6), arguing that Krupa has neither standing nor a cause of action. Judge Sweeney explains that Krupa alleges that TIC held his personal data subject to a shared understanding that it would remain confidential, but that TIC negligently exposed that data to hackers. He says Krupa needs nothing more to establish a breach of bailment claim. Krupa plausibly alleges that his data is "personal property" that is in TIC's "exclusive possession" once on TIC's servers, and that TIC had "accepted" the data in the course of business. Krupa was unable to manipulate his personal data on TIC's servers; TIC was in full control. A breach of bailment claim can be styled as one in contract or in tort; Krupa brings both. Judge Sweeney finds that Krupa has alleged viable claims under Indiana law. So, his complaint thus survives a Rule 12(b)(6) motion to dismiss. Armed with a common law cause of action, Judge Sweeney finds that Krupa also has standing sufficient to survive a Rule 12(b)(1) motion to dismiss. An invasion of a common law right (i.e., the existence of a common law cause of action) satisfies the "injury" prong of the Supreme Court's current three-prong standing inquiry. The availability of nominal damages for breach of bailment satisfies the "redressability" prong. "Causation" is not reasonably in dispute. In sum, Judge Sweeney concludes that Krupa sufficiently alleges breach of bailment. His claim, whether characterized as "negligence" or "breach of implied contract," survives both a Rule 12(b)(1) and a Rule 12(b)(6) motion to dismiss. TIC's motion to dismiss is therefore denied. Next, Judge Sweeney concludes that Krupa has made class allegations in his complaint to which TIC has not yet responded. Cognizant of the Court's Rule 23(c)(1)(A) duty to determine "at an early practicable time" whether to certify a class, Judge Sweeney orders the parties to brief the class certification question on the following schedule: Krupa was to file a separate motion to certify a class on Jan. 16, 2023. (He may, of course, reuse some or all of the class certification briefing from his initial complaint.) Briefing will then proceed according to Local Rule 7-1(c)(3), under which TIC will have 14 days from the service of Krupa's motion to file its response, and Krupa will have seven days from the service of TIC's response to fill his reply. A full-text copy of the Court's Jan. 10, 2023 Order is available at https://tinyurl.com/34sntyu9 from Leagle.com. TRADER JOE'S: Dark Chocolate Contains Heavy Metals, Brennessel Says ------------------------------------------------------------------- LILLIAN BRENNESSEL, individually and on behalf of all others similarly situated, Plaintiff v. TRADER JOE'S COMPANY, Defendant, Case No. 4:23-cv-00064 (N.D. Cal., Jan. 5, 2023) seeks to recover damages and injunctive relief for Defendant's continuing failure to disclose to consumers that certain Trader Joe's dark chocolate products contain unsafe levels of lead and cadmium, in violation of the California's Unfair Competition Law. According to the complaint, Plaintiff and other consumers who purchase the products are injured by Defendant's acts and omissions concerning the presence (or risk) of heavy metals. No reasonable consumer would know, or have reason to know, that the products contain (or risk containing) heavy metals. Worse, as companies across the industry have adopted methods to limit heavy metals in their dark chocolates, Defendant has stood idly by with a reckless disregard for its consumers' health, alleges the suit. The Trader Joe's Dark Chocolate Products in question are the Trader Joe's "Dark Chocolate 72% Cacao" bar and the Trader Joe's "The Dark Chocolate Lover's Chocolate 85% Cacao" bar. Trader Joe's Company is an American chain of grocery stores headquartered in Monrovia, California.[BN] The Plaintiff is represented by: L. Timothy Fisher, Esq. Sean L. Litteral, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 E-mail: ltfisher@bursor.com slitteral@bursor.com - and - Max S. Roberts, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: mroberts@bursor.com - and - Kevin Laukaitis, Esq. LAUKAITIS LAW FIRM LLC 737 Bainbridge Street, #155 Philadelphia, PA 19147 Telephone: (215) 789-4462 E-mail: klaukaitis@laukaitislaw.com UNITED STATES: Bran, et al., Seek to Certify Class Action --------------------------------------------------------- In the class action lawsuit captioned as Jose Bran, David Paiz Cornejo, Jose Rubio, Luis Cruz Rodriguez, Irwin Garcia, Jose Alfaro, Jose David Luis, Mario Oliva, Mario Alberto Molina, et al., v. United States, Federal Bureau of Prisons (BOP), J. Meyers, et al., Case No. 3:22-cv-00755-KM (M.D. Pa.), the Plaintiffs ask the Court to enter an order: 1. certifying a class of all present and future MS-13 gang members, inmates of the Federal Bureau of Prisons; and 2. appointing class counsel. A copy of the Plaintiffs' motion to certify class dated Jan. 12, 2022 is available from PacerMonitor.com at http://bit.ly/3H4uP2oat no extra charge.[CC] VALENTINO LOPEZ: Plaintiffs Seek to Certify H-2A worker Class ------------------------------------------------------------- In the class action lawsuit captioned as JOSE CRUZ MARTINEZ-MORALES, et al., on behalf of themselves and other similarly situated persons, v. VALENTINO LOPEZ, JR. aka and/or d/b/a VALENTINO LOPEZ AND VALENTINO LOPEZ GOMEZ, et al., Case No. 5:22-cv-00187-BO (E.D.N.C.), the Moving Plaintiffs ask the Court to enter an order: 1. Conditionally certifying this action as a collective action pursuant to 29 U.S.C. section 216(b) for: H-2A workers employed by Valentino Lopez, Jr., at any time in 2020, who file a Consent to Sue pursuant to 29 U.S.C. 216(b) and who performed agricultural or related work for the Defendants in or around Sampson County, North Carolina, and who were required by the Defendants to pay unlawful recruitment fees, were not fully reimbursed for their inbound travel costs in the first paycheck they received, and/or were paid less than the minimum hourly wage of $7.25 per hour required by the FLSA for any H-2A worker's weekly wage(s);" 2. Approving the distribution of the attached Notice and Consent to Join forms by Moving Plaintiffs, within two weeks from the date on which Defendants provide contact information for the persons whom the Court conditionally certifies as members of the collective action under 29 U.S.C. section 216(b), by U.S. mail, and approving distribution by text and/or WhatsApp message, social media including but not limited to Facebook, posting on a website, notification and provision of the Notice and form(s) to the Mexican Consulate, and radio in Mexico; 3. Directing the Defendants to provide to the Plaintiffs within two weeks after entry of the Court's Order the full names, date(s) of employment, employee ID, passport number and copy of passport biographical page, U.S. and Mexico addresses, home, cell, and WhatsApp phone numbers (U.S. and Mexico), location of work performed for the Defendants, and date of birth of all putative collective action members; 4. Directing the Defendants to post and maintain the Notice, attached as Exhibit D, at all worksites and employer- provided housing for H-2A farmworkers under the ownership or control of any of the Defendants until resolution of this action or December 31, 2023, whichever is earlier, and directing the ordering the Defendants to provide the Notice to current employees with the employees' paychecks within two weeks after entry of the Court's Order, and to subsequent H-2A employees with those employees' first 2023 paychecks; and, 5. For such other relief as the Court deems just. The Moving Plaintiffs are Jose Cruz Martinez-Morales, Margarito Gutierrez, Marisol de la Cruz-Nava, Florencio-Gutierrez, Cuauhtemoc Florencio-Agustin Florencio-Sanchez, Jeidy Flores-Arriaga, Rosa Irma Gomez-Hernandez, Ivan Oswaldo Meza-Garcia, Feliciano Navarrete-Flores, Pedro Procopio-Diaz, Jose Romero-Patricio, Benin Betuel Vargas-Espiritu, and Sergio Villalva-Gatica. A copy of the Plaintiff's motion to certify class dated Jan. 12, 2022 is available from PacerMonitor.com at http://bit.ly/3IRYXzgat no extra charge.[CC] The Plaintiffs are represented by: Michael Boyd, Esq. Aaron V. Jacobson, Esq. Caitlin A. Ryland, Esq. Megan Garcia-Davis, Esq. LEGAL AID OF NORTH CAROLINA FARMWORKER UNIT Raleigh, NC 27611 Telephone: (919) 856-2180 Facsimile: (919) 856-2187 E-mail: MichaelB@legalaidnc.org AaronJ@legalaidnc.org CaitlinR@legalaidnc.org MeganG@legalaidnc.org The Defendants are represented by: Elisa Cyre Salmon, Esq. THE SALMON LAW FIRM, LLP Lillington, NC 27546 E-mail: esalmon@salmonlawfirm.com - and - F. Marshall Wall, Esq. Rashawnda Murphy Williams, Esq. CRANFILL SUMNER LLP Raleigh, NC 27611-7808 E-mail: MWall@cshlaw.com RWilliams@cshlaw.com - and - M. Brad Hill, Esq. HILL LAW, PLLC Raleigh, NC 27636 E-mail: brad@hillattorneysnc.com WALTER BERRY: Court Recommends Dismissal of Wells Suit ------------------------------------------------------ In the class action lawsuit captioned as TYRECQUISS SHAEWAUN WELLS, v. Warden WALTER BERRY, et al., Case No. 5:21-cv-00407-MTT-CHW (M.D. Ga.), the Hon. Judge Charles H. Weigle entered an order recommending that: -- The Defendants' motion to dismiss be granted. -- The Plaintiff's motion to consolidate or amend is denied. -- Pursuant to 28 U.S.C. section 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen 14 days after being served with a copy thereof. -- Objections are limited to twenty pages in length. Local Rule 7.4 The District Judge will make a de novo determination of those portions of the Recommendation to which objection is made -- All other portions of the Recommendation may be reviewed for clear error. The Plaintiff, a state prisoner, alleges that while he was confined at Baldwin State Prison (BSP), he "witnessed numerous stabbings" and has "had to fight for my life on multiple occasions," he contends. The Plaintiff further alleges that the pervasive violence at BSP is the result of a policy or practice whereby "inmates don't get punished when caught with concealed weapons." A copy of the Court's order dated Jan. 11, 2022 is available from PacerMonitor.com at http://bit.ly/3ZDKgplat no extra charge.[CC] WERNER ENTERPRISES: Court Denies Petrone's Bid for New Trial ------------------------------------------------------------ In the case, PHILIP PETRONE, et al., Plaintiffs v. WERNER ENTERPRISES, INC., and DRIVERS MANAGEMENT, LLC, Defendants, Case Nos. 8:11CV401, 8:12CV307 (D. Neb.), Judge Brian C. Buescher of the U.S. District Court for the District of Nebraska: a. denies the Plaintiffs' Motion for New Trial; and b. enters Judgment in favor of the Defendants and against the Plaintiffs on all claims. The class action arises out of claims by commercial truck drivers who assert that they were not paid proper amounts while working for Werner and Drivers as part of the Defendants' Student Driver Program. Somewhat more specifically, in a Second Amended Complaint, Petrone seeks unpaid wages for "unpaid rest breaks," and "unpaid sleeper berth time," on behalf of the class. He asserts violations of the Fair Labor Standards Act (FLSA), the Nebraska Wage and Hour Act (NWHA), and the Nebraska Wage Payment Collection Act (NWPCA), as well as claims for unjust enrichment, breach of implied contract, and breach of contract. The key matters at this point in the litigation are not facts pertaining to the Plaintiffs' claims, however. Rather, because the case has taken a lengthy and somewhat circuitous route to this point, the key matters are the pretrial, post-trial, and appellate rulings leading to the issues now before the Court. After two trips to the Eighth Circuit Court of Appeals and two remands, this 11-year-old case is now assigned to a third district judge in this Court. After the most recent remand, the magistrate judge held a telephonic conference with the counsel for the parties regarding further proceedings consistent with the appellate court's second opinion, then reopened the Plaintiffs' Motion for New Trial and directed the parties to file simultaneous supplemental briefs limited to the requisite analyses of two issues. The first issue is whether to exclude the Plaintiffs' expert's untimely opinion, which was their only evidence of damages at trial, pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure. The second issue is whether the Court should appoint an expert at their expense pursuant to Rule 706 of the Federal Rules of Evidence if the Court excludes the Plaintiffs' expert's damages opinions. The Plaintiffs argue that the Court should reimpose the monetary sanction entered by Judge Lyle E. Strom in lieu of excluding the damages computations disclosed in August of 2014 because exclusion is overly harsh. As to the pertinent factors, they argue that the reason for noncompliance with the expert deadline was to submit an expert report that lowered the amount of damages they sought in the interest of submitting an accurate and just damages calculation. Next, the Plaintiffs argue that the Defendants were neither surprised nor prejudiced by the second report, where the Defendants were able to identify objections to Plaintiff expert Richard Kroon's damages calculations based on his January Report, and Kroon's August Report simply incorporated those objections to seek substantially less in damages. They also assert that allowing the untimely report does not require any continuances. The Defendants argue that exclusion is the "default" sanction under Rule 37(c)(1) and applicable case law and that it is the appropriate sanction. They argue that the Plaintiffs' contention that there is no prejudice because the untimely report lowers the damages is disingenuous because they should have obtained a dismissal on the ground that the Plaintiffs' original damages evidence was inadmissible. The Defendants also argue that the Plaintiffs' noncompliance with the expert deadline was "overwhelmingly" prejudicial to them for the same reasons it was not harmless. They argue that allowing use of the untimely report at this late date would greatly disrupt the order and efficiency of the proceedings. The Defendants acknowledge that the untimely evidence is crucial, but they argue that Rule 37(c)(1) already struck the balance between incentivizing compliance and not punishing merely technical violations. Judge Buescher finds that has now performed the Rule 37(c)(1) analysis that was required in this case consistent with the opinion of the Eighth Circuit Court of Appeals and determined that exclusion of the Plaintiffs' untimely expert evidence is the appropriate sanction. Likewise, he has now performed the Rule 706 analysis that was required consistent with the opinion of the Court of Appeals and determined that appointment of an expert is inappropriate. Because the Court of Appeals determined that the Plaintiffs cannot prove damages in this case without expert evidence and they now have none, it follows that they are not entitled to a new trial and that judgment will enter in favor of the Defendants on all claims. After consideration of the opinions of the Eighth Circuit Court of Appeals, the parties' supplemental briefs, and the record, Judge Buescher concludes that exclusion of the Plaintiffs' damages expert's untimely opinion is appropriate pursuant to Rule 37(c)(1); that appointment of an expert pursuant to Rule 706 is not appropriate; and that the Plaintiffs' case must now be dismissed with prejudice because Plaintiffs cannot prove damages without expert testimony. Accordingly, the Plaintiffs' Motion for New Trial is denied. Judgment will be entered in favor of the Defendants and against the Plaintiffs on all claims. A full-text copy of the Court's Jan. 10, 2023 Memorandum and Order on Remand is available at https://tinyurl.com/bddndnah from Leagle.com. WISCONSIN: Seeks to Stay Briefing on Plaintiffs' Jan. 9 Motions --------------------------------------------------------------- In the class action lawsuit captioned as BRIAN BEMKE, SCOTT COLLETT, JOHN FERIOZZI, JUDY FINTZ, SARAH JAMIESON, EVAN JOHNSON, TRACY LONG, and CLIFFORD NEUMANN, v. AMY PECHACEK, in her official capacity as Secretary-designee of the State of Wisconsin Department of Workforce Development, Case No. 3:21-cv-00560-wmc (W.D. Wis.), the Defendant asks the Court to enter an order staying briefing of the two motions filed by the Plaintiffs on January 9, 2023 -- Motion to Certify and Motion for Appointment of [Attorneys] as Co-Class Counsel. On March 3, 2022, this Court granted Defendant's motion to determine liability before determining class certification. The Court acknowledged that normal practice is to schedule briefing on class certification before summary judgment. However, here, the Court agreed "that an exception to that general rule is warranted" in light of its previous decision on plaintiffs' motion for preliminary injunction -- "casting doubt on the merits" of Plaintiffs' claim. Accordingly, the Court issued an amended scheduling order, including but not limited to, the parties' dispositive motions due by July 1, 2022, and Plaintiffs' class certification motion due no later than January 9, 2023, with 21/10 response/reply briefing. The Defendant notes that pretrial deadlines commence on March 31, 2023, with a trial to occur on May 15. The Defendant does not oppose in a scheduling conference with the Court and Plaintiff to discuss possible amendment of the current scheduling order. A copy of the Defendant's motion dated Jan. 12, 2022 is available from PacerMonitor.com at http://bit.ly/3ZFSPA0at no extra charge.[CC] The Defendant is represented by: Joshua L. Kaul, Esq. Steven C. Kilpatrick, Esq. Clayton P. Kawski, Esq. WISCONSIN DEPARTMENT OF JUSTICE Madison, WI 53707-7857 Telephone: (608) 266-1792 (Kilpatrick) Telephone: (608) 266-8549 (Kawski) Facsimile: (608) 294-2907 (Fax) E-mail: kilpatricksc@doj.state.wi.us kawskicp@doj.state.wi.us WORLD WRESTLING: McMahon Sued by Shareholder Over Return to Company ------------------------------------------------------------------- Lyle Kilbane posted through TJR Wrestling.net that a WWE shareholder has launched legal action against Vince McMahon after McMahon's sensational return to power as Executive Chairman. Vince McMahon stunned the wrestling world in July 2022 when he announced his retirement as WWE Chairman and CEO amid an investigation into alleged sexual misconduct and 'hush money' payments made to female former employees of the company. In the first week of 2023, McMahon launched an audacious attempt to get back power, using his position as majority shareholder to install himself and former WWE co-Presidents George Barrios and Michelle Wilson on the Board of Directors, removing three current members at the same time. Two other members of the Board then quit before Stephanie McMahon announced her resignation as WWE Chairwoman and co-CEO. The remaining members of the Board then installed Vince McMahon as Executive Chairman. But all this boardroom chess may come at a cost as a WWE shareholder has launched legal action against McMahon in the state of Delaware. The court docket states that "Scott Fellows believes that McMahon is trying to "hamstring the Board and prevent it from undertaking significant time-sensitive decisions respecting some of the most important properties of the Company and that McMahon has breached his fiduciary duties as a controlling stockholder." The case states that: "a Stockholder Approval Amendment has the effect of "muzzling the Board" in all circumstances unless approved by Vince McMahon himself and prevents the Board and management from discharging their fiduciary duties." The class action case has been launched on behalf of all Class A stockholders of WWE shares, meaning that many more people could look for legal and financial restitution as a result of McMahon's actions.[GN] WYNN RESORTS: Court Tosses Ferris Bid to Seal Certain Exhibits --------------------------------------------------------------- In the class action lawsuit captioned as John V. Ferris, et al., v. Wynn Resorts Limited, et al., Case No. 2:18-cv-00479-APG-BNW (D. Nev.), the Hon. Judge Brenda Weksler entered an order denying the Plaintiffs' motion to seal Exhibits F and G attached to their motion for class certification. The Plaintiffs will have until February 12, 2023 to file a new request to seal these 18 documents. Should no motion be filed by then, the Court will unseal the documents in question. The Clerk of Court is directed to maintain ECF Nos. 267 and 269 under seal until further notice from the Court. The Court notes that stipulated protective orders alone do not justify sealing court records. Here, Plaintiffs only point to the protective order as the rationale for sealing the 14 documents in question. Because this does not constitute good cause, the motion is denied. Wynn Resorts is an American publicly traded corporation based in Paradise, Nevada, that is a developer and operator of high-end hotels and casinos. A copy of the Court's order dated Jan. 12, 2022 is available from PacerMonitor.com at https://bit.ly/3X9qDE2 at no extra charge.[CC] XTO ENERGY: Brusamontis File Bid for Class Certification -------------------------------------------------------- In the class action lawsuit captioned as PETER BRUSAMONTI and LISA BRUSAMONTI, husband and wife, on behalf of themselves and all others similarly situated, v. XTO ENERGY, INC., Case No. 2:20-cv-00652-CB (W.D. Pa.), the Plaintiffs ask the Court to enter an order granting their motion for class certification. XTO is an American energy company and subsidiary of ExxonMobil principally operating in North America. It is involved with the production, processing, transportation, and development of oil and natural gas resources. A copy of the Plaintiffs' motion to certify class dated Jan. 13, 2022 is available from PacerMonitor.com at http://bit.ly/3CR0sddat no extra charge.[CC] The Plaintiffs are represented by: D Aaron Rihn, Esq. Sara J. Watkins, Esq. ROBERT PEIRCE & ASSOCIATES, P.C. 707 Grant Street, Suite 125 Pittsburgh, PA 15219 Telephone: (412) 281-7229 Facsimile: (412) 281-4229 E-mail: arihn@peircelaw.com swatkins@peircelaw.com - and - Daniel C. Levin, Esq. LEVIN SEDRAN & BERMAN LLP 510 Walnut Street, Ste. 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 Facsimile: (215) 592-4663 E-mail: dlevin@lfsblaw.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. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***