/raid1/www/Hosts/bankrupt/CAR_Public/230127.mbx               C L A S S   A C T I O N   R E P O R T E R

              Friday, January 27, 2023, Vol. 25, No. 21

                            Headlines

25KARATS LLC: Sanchez Files ADA Suit in E.D. New York
ALLIANCE COAL: Cates' Bid for More Notice to FLSA Collective Denied
AMAZON.COM INC: Sattar Suit Removed to C.D. Cal.
AMC NETWORKS INC: McCoy Sues Over Unlawful Disclosure of PII
AMERICAN HONDA: Wolf Suit Transferred to D. Minnesota

AMERICU CREDIT: Bid to Dismiss Fairchild-Cathey Suit OK'd in Part
ANGLO AMERICAN: Experts Intervene in Mining Pollution Class Suit
APPLE INC: Hit With 3rd Class Suit Over Data Collection Practices
APPLE INC: Popa Sues Over Wiretapping Electronic Communications
ARTHUR FREEMAN: Bailey Files Suit in Cal. Super. Ct.

ATHLETIC MEDIA: Kaplan Sues Over Illegal Automatic Renewal Scheme
BIGTOP WYOMING: Hernandez Sues Over Unpaid Minimum, Overtime Wages
BP EXPLORATION: Bid for Summary Judgment in Bryant Suit Granted
BP EXPLORATION: Court Grants Bid for Summary Judgment in Black Suit
BP EXPLORATION: Court Grants Bid for Summary Judgment in Wells Suit

BP EXPLORATION: Wins Bid for Summary Judgment in English Suit
CALIBER HOME LOANS: Katz Suit Transferred to N.D. Texas
CANADA: Federal Ruling in CAF Sexual Misconduct Suit Discussed
CENTER FOR HOUSING: Geist Sues Over Unpaid Overtime Wages
CENTURY HEALTH: Harris Files TCPA Suit in S.D. Florida

COCA-COLA CO: Juice Drink Contains Toxic Chemicals, Suit Claims
COINBASE GLOBAL: Faces Class Action Over Flare Airdrop Tokens
COSTCO WHOLESALE: Court Denies Bid to Dismiss Wright Class Suit
DRAFTKINGS INC: S.D.N.Y. Dismisses Securities Class Action Suit
ESS INC: Faces Class Action Over Securities Law Violations

EXPERIAN INFORMATION: Has Until Feb. 6 to Respond to Saucedo Suit
FIRSTENERGY CORPORATION: Faces Ramsey Suit Over Unpaid OT for CSRs
GEMINI TRUST: Pomerantz Law Files Securities Class Action Lawsuit
GEOVERA SPECIALTY: Bid to Strike Alexander's Class Claims Denied
HERSHEY COMPANY: Durgin Suit Removed to E.D. Pa.

HYUNDAI MOTOR: Faces Class Action Over Faulty Brake Technology
ICSO INDUSTRIES: Court Denies Bid to Reconsider in Best v. James
IKEA US: 2nd Circuit Erred in Certifying ERISA Class Action
ILLINOIS: Faces Class Action Over Improper Care in Juvenile Jails
INDEPENDENCE, MO: Shook Suit Removed to W.D. Mo.

INDONESIA: Suit Over Death of Children Due to Cough Syrup Heared
JLT RISK: NSW Supreme Court Dismisses Mutual Scheme Class Action
JOHNSONVILLE LLC: Faces Class Action Over Beef Sausage Casings
KROGER CO: Union Files Lawsuit Alleging Widespread Wage Theft
KROGER CO: Union Members File Lawsuit Over Alleged Wage Theft

LAGUNITAS BREWING: Coffey Labor Suit Removed to N.D. Cal.
LIFESCAN INC: Auburn University to Receive $5.33K Cy Pres Award
ME&I CONSTRUCTION: Stock Labor Suit Removed to W.D. Pa.
MICROSOFT CORP: Jones Wins Bid to Remand 2 Counts to Circuit Court
NEW YORK CITY: Fulton's Bid for Production of Info Granted in Part

NORTH CAROLINA: Court Dismisses Maye v. McKinney Without Prejudice
NUWEST GROUP: W.D. Washington Narrows Claims in Hamilton Class Suit
OLLY PUBLIC: Court Grants in Part Bid to Dismiss Murphy Class Suit
ORBIT/FR INC: Loses Bid to Dismiss Claim in Stockholders Suit
OREGON: Court Grants Bid to Dismiss Thompson's Class Allegations

PEP BOYS-MANNY: Mackey Suit Removed to M.D. Fla.
PFIZER INC: Health Fund Balks at Varenicline Containing Drugs
PHARMAGENICS LLC: Ibarra Mislabeling Suit Removed to C.D. Cal.
POPULUS GROUP: Court Awards Taylor's Counsel $60K in Fees & Costs
PRESTIGE BUILDING: Bachan Seeks Construction Workers' Unpaid Wages

RBC DOMINION: Faces $800-M Class Action Over Holiday Pay Practices
REST HAVEN: Shivers Sues Over Unpaid Overtime for Caregivers
ROBINSON HOOVER: Downs Files FDCPA Suit in W.D. Oklahoma
SAFELITE FULFILLMENT: Awadallah Labor Suit Removed to D. Mass.
SHOOT STRAIGHT: Santana Sues Over Unsolicited Text Messages

SILVERGATE CAPITAL: IUOE Sues Over Exchange Act Violation
SMARTMATCH INSURANCE: Howell Sues Over Unwanted Telemarketing
SOHO MASONS: Minchala Sues to Recover Unpaid Wages and Overtime
SOUTHERN CALIFORNIA: Denial of Class Certification in Cessna Upheld
STATEWIDE COLLECTION: McKee Files FDCPA Suit in W.D. North Carolina

SUN VALLEY: ArentFox Schiff Attorneys Discuss Ruling in Labor Suit
TARGET CORP: 8th Cir. Vacates Remand of Leflar Suit to State Court
TESLA INC: Class Action Trial Over Share Price Decline Begins
THINX INC: Agrees to Settle Class Lawsuit Over PFAS in Underwear
TOM'S OF MAINE: Daly Suit Removed to N.D. Ill.

TRUE EAGLE: Parrilla Sues Over Unsolicited Telemarketing Calls
TWITTER INC: Named Plaintiffs in Cornet Suit Must Arbitrate Claims
UMASS MEMORIAL: Progin Wiretapping Suit Removed to D. Mass.
UNITED STATES: Court Orders Cheng to Effect Service on Defendant
UNITED STATES: Faces Class Action Suit Over Solitary Confinement

UNIVERSITY OF NORTH CAROLINA: Dismissal of Dieckhaus Claims Upheld
VALLEY, AL: Mother Arrested Over Garbage Files Class Action Suit
VETERANS AFFAIRS: Bid for Rehearing En Banc in Skaar Suit Denied
VIAQUEST RESIDENTIAL: Underpays Program Managers, Simmons Claims
VIKING RIVER: ArentFox Schiff Lawyers Discuss Arbitral Proceedings

VIVINT SOLAR: Dekker Deal's Final Approval Hearing Moved to July 12
VOLKSWAGEN GROUP: Agrees to Settle Data Security Suit for $3.5-M
WALGREEN CO: Class Settlement in Caves Suit Wins Final Approval
ZARBEE'S INC: Bid to Dismiss Amended Lopez Suit Granted in Part
ZEIGLER MOTORS: Diamond-Hinks BIPA Suit Removed to N.D. Ill.


                        Asbestos Litigation

ASBESTOS UPDATE: Court Orders Hess to Spell Out Financial Support
ASBESTOS UPDATE: Koch Got $2.5BB Dividend Payments from Bestwall


                            *********

25KARATS LLC: Sanchez Files ADA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against 25Karats, LLC. The
case is styled as Randy Sanchez, on behalf of himself and all
others similarly situated v. 25Karats, LLC, Case No. 1:23-cv-00368
(E.D.N.Y., Jan. 19, 2023).

The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.

25karats -- https://www.25karats.com/ -- offers unique styles of
wedding bands, engagement rings, and loose diamonds for sale.[BN]

The Plaintiff is represented by:

          Noor H. Abou-Saab, I, Esq.
          LAW OFFICE OF NOOR A. SAAB
          380 North Broadway, Suite 300
          Jericho, NY 11753
          Phone: (718) 740-5060
          Email: noorasaablaw@gmail.com


ALLIANCE COAL: Cates' Bid for More Notice to FLSA Collective Denied
-------------------------------------------------------------------
In the case, RICKEY CATES, Plaintiff v. ALLIANCE COAL, LLC, et al.,
Defendants, Case No. 21-CV-377-SMY (S.D. Ill.), Judge Staci M.
Yandle of the U.S. District Court for the Southern District of
Illinois denies Cates' Expedited Motion for Supplemental Notice to
the FLSA Collective.

Cates filed the instant collective and class action, individually
and on behalf of all other similarly situated persons, alleging
violations of the Fair Labor Standards Act ("FLSA"), Illinois
Minimum Wage Law ("IMWL"), and Illinois Wage Payment and Collection
Act.

On Sept. 27, 2022, the Court issued an Order granting in part the
Plaintiff's Motion for Conditional Certification and to Facilitate
Notice under Section 126(b) of the FLSA and Illinois State Law. The
Plaintiff was granted leave to send the proposed Notice and Consent
Form by First Class mail and e-mail to all individuals who work or
have worked for the Defendants in Illinois within the last three
years and who elect to opt-in to the action. The Defendants were
directed to produce to the Plaintiffs the names and last known
mailing and email addresses for all individuals who work or have
worked for the Defendants in Illinois from April 9, 2018 to
present. Once the Defendants produced the Collective List and
Notice had been issued, collective action members would have 60
days to return a signed consent form.

Following the entry of the Court's Sept. 27, 2022 Order, the
Defendants provided the Plaintiff with a collective list that
included the names of 507 individuals, their last known mailing
addresses, and the email addresses located in Defendants' business
records. Based on that information, the Plaintiff distributed
notice to 503 potential collective action members via U.S. Mail and
email. As of the end of the opt-in period on Dec. 19, 2022, 32
individuals had opted in and 28 notices (5.5%) were returned as
undeliverable.

On the final day of the opt-in period, the Plaintiff filed the
motion presently before the Court, seeking: (1) an Order requiring
Defendants to conduct a thorough search for all available email
addresses for putative members of the Collective; (2) an Order
requiring Defendants to provide all available telephone numbers for
Collective members so that the Plaintiff's counsel can call to
confirm their most up-to-date addresses for the Notice mailing; (3)
an Order allowing the Plaintiff to use text messages, posting, and
remainder notices as part of a supplemental notice; and, (4) an
Order extending tolling to cover the supplemental notice period and
enjoining Defendants from communicating or otherwise interfering
with Collective Members.

Judge Yandle construes the motion as one seeking reconsideration of
the Sept. 27, 2022 Order. She explains that to prevail on a motion
for reconsideration, the moving party must present either newly
discovered evidence or establish a manifest error of law or fact.
In other words, such a motion may not be employed to rehash
previously rejected arguments or rectify a party's disappointment
with the order or its effect.

While the Plaintiff is understandably disappointed that he received
only 19 email addresses for putative class members, by sworn
affidavit, the Defendants attest that those were the only email
addresses contained in their business records — Defendants
certainly have no affirmative duty to obtain or maintain email
addresses for their employees. The Plaintiff also fails to present
evidence that the original notice was defective or that the low
return rate was due to the method of delivery.

Thus, Judge Yandle maintains its position that the additional forms
of notice the Plaintiff seeks -- by telephone and posted reminders
-- are unnecessary and overly intrusive. Plaintiff has also failed
to demonstrate that the opt-in period was too short or that any
additional putative members would have opted in with additional
time or notice.

Finally, while the Plaintiff suggests that the Defendants may have
interfered with the opt-in process, he produces no evidence of
interference or retaliation. Judge Yandle declines the invitation
to engage in speculation regarding the same. She denies the
Plaintiff's Expedited Motion for Supplemental Notice to the FLSA
Collective.

A full-text copy of the Court's Jan. 13, 2023 Memorandum & Order is
available at https://tinyurl.com/94fr4ak2 from Leagle.com.


AMAZON.COM INC: Sattar Suit Removed to C.D. Cal.
------------------------------------------------
The case styled JENIFFER SATTAR, ADRIANA ARAGON, JAZMIN EASLER, and
SHANNON RHOADS, individually and all similarly situated
individuals, Plaintiffs v. AMAZON.COM, INC., a Delaware
corporation; AMAZON.COM SERVICES LLC, a Delaware limited liability
company; AMAZON LOGISTICS, INC., a Delaware corporation; and DOES
1-10, inclusive, Defendants, Case No. CVRI2205324, was removed from
the Superior Court of California for the County of Riverside to the
United States District Court for the Central District of California
on January 17, 2023.

The Clerk of Court for the Central District of California assigned
Case No. 5:23-cv-00086 to the proceeding.

The Complaint asserts the following causes of action: (1)
interference in violation of the Pregnancy Disability Leave Law;
(2) failure to accommodate in violation of the Fair Employment and
Housing Act and the PDLL; (3) failure to engage in the interactive
process in violation of the FEHA and PDLL; (4) retaliation in
violation of the FEHA and the PDLL; (5) wrongful termination in
violation of Public Policy; (6) failure to pay all sick pay in
violation of California Labor Code; (7) Private Attorneys' General
Act Penalties; and (8) unfair competition.

Amazon.com, Inc. is an American multinational technology company
focusing on e-commerce, cloud computing, online advertising,
digital streaming, and artificial intelligence.[BN]

The Defendants are represented by:

          Lindsay Hutner, Esq.
          Tayanah Miller, Esq.
          GREENBERG TRAURIG, LLP
          101 Second Street, Suite 2200
          San Francisco, CA 94105
          Telephone: (415) 655-1300
          Facsimile: (415) 707-2010
          E-mail: lindsay.Hutner@gtlaw.com
                  millerta@gtlaw.com

               - and -

          Samuel S. Hyde, Esq.
          GREENBERG TRAURIG, LLP
          1201 K Street, Suite 1100
          Sacramento, CA 95814-3938
          Telephone: (916) 442-1111
          Facsimile: (916) 448-1709
          E-mail: hydes@gtlaw.com

AMC NETWORKS INC: McCoy Sues Over Unlawful Disclosure of PII
------------------------------------------------------------
Gerald McCoy, Nicholas Nunez, and Andy Germuga, individually, and
on behalf of all others similarly situated v. AMC Networks, Inc.
d/b/a/ AMC+, Case No. 1:23-cv-00441-RA (S.D.N.Y., Jan. 18, 2023),
is brought against the Defendant for its unlawful disclosure and
retention of the Plaintiffs' and its other consumers' personally
identifiable information (including information that identifies a
person as having requested or obtained specific video materials or
services) in violation of the Video Privacy Protection Act (the
"VPPA"); the New York Video Consumer Privacy Act ("NYVCPA"), N.Y.
General Business Law ("GBL"); and the Minnesota Statute.

One line of AMC+'s business is streaming video services, whereby
AMC+--through its website, the AMC+ application, and on-demand
channels such as Apple TV+ and Amazon Prime––makes prerecorded
audiovisual materials (i.e., videos) available for consumers to
request and obtain.

AMC+ discloses the specific videos its consumers have requested or
obtained to Facebook. AMC+ discloses this information to Facebook
using the Facebook Pixel ("Pixel")--a snippet of programming code
AMC+ chose to install on its website that sends information about
its users to Facebook. In this case, the information shared with
Facebook includes the consumer's Facebook ID ("FID") coupled with
the title of the video that the consumer requested or obtained on
the AMC+ website. A consumer's FID is a unique sequence of numbers
linked to that individual's Facebook profile. Entering
"facebook.com/[FID]" into a web browser returns the Facebook
profile of that particular person. Thus, the FID identifies a
consumer more precisely than a name.

AMC+ discloses to Facebook the consumer's FID alongside content the
consumer requested or obtained together in a single transaction.
Because the consumer's FID uniquely identifies an individual's
Facebook account, Facebook—or any other person—can use the FID
to quickly and easily locate, access, and view a particular
consumer's corresponding Facebook profile. In the simplest terms,
the Pixel installed by AMC+ captures and discloses to Facebook what
video a specific consumer requested or obtained on the AMC+
website.

AMC+ also maintains records which identify the content requested
and obtained by its consumers. The records consist of consumers'
account login information, payment information, and requests for
specific video materials. Upon information and belief, AMC+ retains
these records indefinitely.

Yet AMC+'s streaming video service operates in violation of state
and federal laws designed to protect the confidentiality of
consumers' content selection. AMC+ discloses and retains its
consumers' personally identifiable information in violation of the
VPPA, the NYVCPA, and the Minnesota Statute, says the complaint.

The Plaintiffs are consumers of AMC+'s video streaming platform and
has requested and obtained videos using his AMC+ subscription.

AMC+ is a media production and distribution company that sells its
content on multiple platforms.[BN]

The Plaintiff is represented by:

          Samuel R. Jackson, Esq.
          Hank Bates, Esq.
          Courtney Ross, Esq.
          CARNEY BATES & PULLIAM, PLLC
          519 W. 7th Street
          Little Rock, AR, 72201
          Phone: (501) 312-8500
          Facsimile: (501) 312-8505
          Email: hbates@cbplaw.com
                 sjackson@cbplaw.com
                 cross@cbplaw.com


AMERICAN HONDA: Wolf Suit Transferred to D. Minnesota
-----------------------------------------------------
The case styled as Eliyahu Wolf, Miranda Phelps, individually and
on behalf of all others similarly situated v. American Honda Motor
Co., Inc., Case No. 1:22-cv-05855 was transferred from the U.S.
District Court for the Northern District of Illinois, to the U.S.
District Court for the District of Minnesota on Jan. 19, 2023.

The District Court Clerk assigned Case No. 0:23-cv-00145-JRT-DJF to
the proceeding.

The nature of suit is stated as Motor Vehicle Prod. Liability for
the Magnuson-Moss Warranty Act.

The American Honda Motor Company, Inc. -- https://www.honda.com/ --
is the North American subsidiary of the Honda Motor Company.[BN]

AMERICU CREDIT: Bid to Dismiss Fairchild-Cathey Suit OK'd in Part
-----------------------------------------------------------------
In the case, MALINDA FAIRCHILD-CATHEY, RICHARD MUMFORD, AND AARON
FORJONE, on behalf of all others similarly situated, et al.,
Plaintiffs v. AMERICU CREDIT UNION, Defendant, Case No.
6:21-CV-01173 (LEK/ML) (N.D.N.Y.), Judge Lawrence E. Kahn of the
U.S. District Court for the Northern District of New York grants in
part and denies in part the Defendant's motion to dismiss the
Amended Complaint.

Fairchild-Cathey, on behalf of herself and a class of others
similarly situated, commenced the action against Americu on Oct.
27, 2021, alleging breach of contract and breach of the implied
covenant of good faith and fair dealing.

The Plaintiffs hold or formerly held checking accounts with the
Defendant. The Defendant is a credit union which provides banking
services to its members. According to the Plaintiffs, the two
documents attached to their Amended Complaint govern the
Plaintiffs' relationship with the Defendant. The documents include
a "Schedule of Fees and Charges," along with a "Membership and
Account Agreement."

When the Defendant's members -- such as the Plaintiffs -- attempt a
transaction but lack sufficient funds to complete the transaction,
the Account Documents permit the Defendant to charge the
accountholder a $28 insufficient fund ("NSF") fee. The Fee Schedule
provides that the Defendant may assess a $28 fee per "each" item
returned for insufficient/uncollected funds.

The Plaintiffs allege that the Defendant assesses multiple NSF fees
on a single transaction in violation of the Account Documents. They
allege that the Defendant breaches the Account Documents by
charging more than one $28 NSF fee on the same transaction because
reasonable consumers would understand that the same transaction may
incur only a single NSF fee.

The Plaintiffs also allege that the Defendant unlawfully charges
overdraft fees on transactions referred to as Authorize Positive
Purportedly Settle Negative ("APPSN") transactions. The Defendant
allegedly assesses overdraft fees on APPSN transactions that have
sufficient funds to cover a transaction.

The Plaintiffs' final set of breach of contract claims relate to
the Defendant's policy of out-of-network-ATM ("OON") fees. They
allege that the Defendant's Account Documents misrepresent to its
members the nature of its assessment of these fees.

Dovetailing with their breach of contract claims, the Plaintiffs
also raise claims relating to the implied covenant of good faith
and fair dealing. They allege that the Defendant abuses the power
it has over customers and their bank accounts and acts contrary to
their reasonable expectations under the Account Documents.

The Plaintiffs final set of claims arise under New York General
Business Law Section 349. They allege that the Defendant
systematically engaged in these deceptive, misleading, and unlawful
acts and practices, to the detriment of the Plaintiffs and members
of the New York Subclasses in violation of GBL Section 349.

On Oct. 27, 2021, Fairchild-Cathey commenced the class action
alleging breach of contract and breach of the implied covenant of
good faith and fair dealing against Defendant. In response to the
Complaint, the Defendant filed a motion to dismiss for failure to
state a claim on Jan. 7, 2022.

On Jan. 28, 2022, the Plaintiff filed an amended complaint, which
inserted two new named Plaintiffs in the class action: Mumford and
Forjone, which mooted the Defendant's motion to dismiss. In the
Amended Complaint, the Plaintiff named two additional plaintiffs:
Richard Mumford and Aaron Forjone. The Plaintiffs now assert the
following causes of action against the Defendant: (1) breach of
contract; (2) breach of the implied covenant of good faith and fair
dealing; and (3) violation of New York General Business Law ("GBL")
Section 349.

On March 10, 2022, the Defendant filed a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6). It contended
that the documents governed the parties' contractual relationship.
The parties sharply disputed which documents governed the
Plaintiffs' claims against the Defendant.

On Oct. 14, 2022, in light of the extra material presented outside
the Plaintiffs' Amended Complaint, the Court directed the parties
to provide supplemental briefing explaining whether the Court
should -- pursuant to Rule 12(d) -- exclude the materials presented
by the Defendant, or instead, consider the extraneous material and
convert the Motion to a motion for summary judgment under Rule 56.

The Plaintiffs argue that the Court should exclude the material
because they have not been established as relevant to the case, but
if the Court opts not to, it should afford them the opportunity to
take discovery and provide supplemental briefing. Conversely, the
Defendant asserts that the Court should not exclude the materials
and instead convert the motion to dismiss into a motion for summary
judgment with limited discovery.

Before addressing the parties' substantive arguments, Judge Kahn
notes that the parties disagree over the relevant documents. The
Plaintiffs ask the Court to consider only the documents in their
Amended Complaint, including the Fee Schedule and Membership
Agreement that they allege were in effect when the Plaintiffs
became members of the Defendant.

The Defendant, however, provides an affidavit from an employee
("Cornacchia Affidavit") containing the following allegedly
relevant documents: (1) a subsequent Membership Agreement effective
on July 5, 2019 that purportedly governs Fairchild-Cathey's claims
related to a July 5, 2019 fee, Exhibit 2; (2) a subsequent
Membership Agreement effective on June 22, 2020, and June 27, 2020,
that purports to govern Mumford's claims, Exhibit 3; (3)
Defendant's Truth-In-Savings Disclosure, Exhibit 4; and (4) a 2019
version of Defendant's Electronic Funds Transfer Agreement and
Disclosure that ostensibly governs Forjone's claims, Exhibit 5. It
urges the Court to consider these documents, because failure to do
so would "allow the Plaintiffs to cherry-pick" the relevant
documents.

Judge Kahn now analyzes which documents are integral to the Amended
Complaint, and then addresses whether the Motion should be
converted to one for summary judgment pursuant to Rule 12(d).

First, Judge Kahn finds that Exhibit 4, the Truth-In-Savings
Disclosure, is integral to the Amended Complaint; and Exhibits 2,
3, and 5 are not integral to the complaint and cannot be considered
for purposes of ruling on a motion to dismiss under 12(b)(6).

Judge Kahn now considers whether the Court should convert the
motion to dismiss into a motion for summary judgment. The
Plaintiffs argue that the Court must exclude the Defendant's
outside-the-pleading documents because they have not been
established as relevant to this case and the issues before the
Court. The Defendant, conversely, argues that the Court should not
exclude the materials it presented because doing so would frustrate
established principles of contract and settled case law.

Judge Kahn finds it appropriate to follow the lead of other courts
in this Circuit and declines to convert the motion to dismiss into
a motion for summary judgment. Because the Court has "complete
discretion" whether to convert the Defendant's Motion, and because
discovery has yet to begin, significant relevant facts may be
discovered such that conversion to summary judgment is unwarranted.
As such, Judge Kahn excludes all of the Defendant's attached
materials except for the Truth-in Savings Disclosure in Exhibit 4
because that document is integral and relevant to the Plaintiffs'
Amended Complaint.

Turning to the breach of contract claims, Judge Kahn (i) denies the
Defendant's motion to dismiss with respect to the Plaintiffs'
breach of contract claim regarding the Defendant's practice of
assessing NSF fees because the claim is sufficient to withstand the
motion to dismiss; (ii) holds that because the Court may not grant
a motion to dismiss on a breach-of-contract claim when the contract
is not clear and unambiguous, he does not dismiss the Plaintiffs'
breach-of-contract-claim related to the OD fees on APPSN
transactions; and (iii) finds that because the Fee Schedule is
ambiguous, the Defendant's motion to dismiss regarding the
Plaintiffs' OON ATM balance inquiry transactions claim is denied.

The Defendant the asserts that the Plaintiffs' claim for breach of
the implied covenant of good faith and fair dealing fails because
it is duplicative of their breach of contract claims.

Judge Kahn agrees with the Defendant that the Plaintiffs' implied
covenant of good faith and fair dealing claim is duplicative of
their breach of contract claims. The Defendant's alleged failure to
act in good faith stems from its alleged failure to adhere to its
contractual terms. In other words, these allegations are the exact
same as those used to support the Plaintiffs' breach of contract
claims. Accordingly, the Plaintiffs' claim for breach of the
implied covenant of good faith and fair dealing are dismissed.

The Defendant next urges the Court to dismiss the Plaintiffs' GBL
Section 349 claim because their bare-bones allegations are
conclusory in nature, and thus, insufficient to meet the allegedly
heighted pleading standard required by the statute. Alternatively,
it argues that because its fee practices complied with the
clearly-stated terms of the Account Documents, there also is no
'materially misleading' conduct in the first place to form the
basis to support a claim under GBL Section 349.

Judge Kahn finds that the allegations plausibly suggest a GBL
Section 349 violation and provide the requisite level of
specificity. These allegations satisfy the three elements of a GBL
violation because these allegations plausibly allege that the
Defendant engaged in (1) consumer-oriented conduct that is (2)
materially misleading and (3) the Plaintiffs suffered injury as a
result of the allegedly deceptive act or practice. This finding is
in harmony with other courts that have analyzed nearly identical
claims. Accordingly, the Defendant's motion to dismiss with respect
to the Plaintiffs' claim arising under GBL Section 349 is denied.

Finally, the Defendant argues that the Plaintiffs' claims are
preempted by the Truth in Savings Act ("TISA"), and other
implementing regulations. It contends that the Plaintiffs cast
their claims as one for breach of contract, but they are actually
challenging that the Defendant does not plainly and clearly
disclose its practices.

Judge Kahn holds that the Plaintiffs' claims arise from an alleged
breach of the Account Documents and corresponding
misrepresentations made by the Defendant. Accordingly, because the
Plaintiffs do not seek to plead claims that directly challenge the
method by which the Defendant decides to impose overdraft fees, the
Plaintiffs' claims are not preempted under the TISA. Accordingly,
the Defendant's motion to dismiss predicated on preemption is
denied.

Accordingly, for these reasons, Judge Kahn denies the Defendant's
motion to dismiss in part with respect to (1) all of the
Plaintiffs' breach of contract claims; (2) the Plaintiffs' GBL
Section 349 claim; and (3) dismissal on the basis of preemption.

Judge Kahn grants the Defendant's motion to dismiss in part to the
extent it sought dismissal of the Plaintiffs' claim with respect to
the implied covenant of good faith and fair dealing.

The Clerk serve a copy of his Memorandum-Decision and Order on all
parties in accordance with the Local Rules.

A full-text copy of the Court's Jan. 17, 2023 Memorandum-Decision &
Order is available at https://tinyurl.com/2awtytrr from
Leagle.com.


ANGLO AMERICAN: Experts Intervene in Mining Pollution Class Suit
----------------------------------------------------------------
ohchr.org reports that a court in South Africa has admitted several
UN experts as amici curiae in a class action suit filed by alleged
victims of mining pollution in Zambia's central Kabwe District.

UN Special Rapporteurs on toxics and human rights, extreme poverty
and human rights, rights of persons with disabilities and the UN
Working Groups on business and human rights and discrimination
against women and girls have sought to intervene in the case.

The South Gauteng High Court will hear arguments on whether the
merits of the damages claim by the victims can be considered. The
lawsuit was filed in South Africa against Anglo American, a mining
company based in the country.

The class action suit was filed on behalf of children and women of
child-bearing age who have suffered injury and harm as a result of
exposure to lead pollution. The applicants allege that Anglo
American South Africa, through its prior involvement in the
activities of the local lead mine, assumed a duty of care towards
the residents of Kabwe, especially protection against lead
exposure.

"Lead is a cumulative toxicant that affects multiple body systems
and is particularly harmful to young children. The World Health
Organization (WHO) has identified it to be one of 10 chemicals of
major public health concern, needing action by Member States to
protect the health of workers, children and women of reproductive
age. According to the WHO, there is no level of exposure to lead
that is known to be without harmful effects," said the experts.
"Young children can suffer profound and permanent adverse health
effects and disabilities, including in the development of the brain
and the nervous system. Pregnant women's exposure to lead can cause
miscarriage, stillbirth, and premature birth and low birth
weight."

The South African Court will consider arguments based on
international human rights law, including the Guiding Principles on
Business and Human Rights that commit businesses enterprises to
respect human rights, state that businesses should avoid infringing
on human rights of others, whilst addressing the adverse human
rights impacts linked to business activity with which they are
involved, and highlight the importance of access to remedies in
case of violations.

The experts argued that Anglo American was acting contrary to its
professed commitments to human rights in business, when it opposes
the Court even considering this class action.

"Anglo American South Africa has voluntarily committed itself to
follow the Guiding Principles, including the commitment to support
access to justice where human rights impacts have occurred and to
co-operate in processes designed to establish whether there is
culpability for those impacts," the experts said. [GN]

APPLE INC: Hit With 3rd Class Suit Over Data Collection Practices
-----------------------------------------------------------------
Andrew Orr at appleinsider.com reports that Apple is facing a third
class-action lawsuit over claims that the company collects user
data even with App Tracking Transparency turned off.

Tests from researchers revealed that turning off the setting did
not affect analytics data sent from Apple apps, including the App
Store, Apple Music, Apple TV, and others. While Apple promises that
the information can't identify a user, the data is reportedly
transmitted with a permanent ID number that is tied to iCloud
accounts, according to Gizmodo.

The text of the third lawsuit is nearly the same as that of the
second one. Paul Whalen is the attorney suing Apple in New York,
and the suit asks for $5 million in damages.

Class-action lawsuits
The first lawsuit of this nature happened in November 2022, from
plaintiff Elliot Libman. It alleges that research has exposed Apple
in that it "records, tracks, collects and monetizes analytics data
- including browsing history and activity information - regardless
of what safeguards or "privacy settings" consumers undertake to
protect their privacy."

Specifically, the suit cites "Allow Apps to Request to Track" and
"Share Analytics" settings as their main issues with Apple.

Plaintiff Joaquin Serrano filed the second lawsuit on January 6 n
the U.S. District Court for the Eastern District of Pennsylvania,
alleging similar violation of consumer privacy.

All of these lawsuits stem from researchers from iOS developers
Mysk published in November. They found an ID in Apple analytics
data referred to as "dsld" and later listed as a "Directory
Services Identifier," linked to an iCloud account.

The identifier is included in all analytics data the App Store
sends to Apple, with other apps doing the same. Mysk believes it
means "your detailed behavior when browsing apps on the App Store
is sent to Apple and contains the ID needed to link the data to
you."

The behavior reportedly persists in iOS 16, but the researchers
could not examine what data was sent because it was transmitted
using encryption.

According to attorneys that AppleInsider spoke with after the
filing of the second lawsuit, "unlawful interception of a
communication" mentioned in the suit is unlikely to hold any
weight, nor is an invasion of privacy given the willful use of the
device by the user.[GN]

APPLE INC: Popa Sues Over Wiretapping Electronic Communications
---------------------------------------------------------------
Ashley Popa, individually and on behald of all others similarly
situated v. Apple, Inc., Case No. 2:23-cv-00095 (W.D. Pa., Jan. 18,
2023), is Brought against Apple for wiretapping the electronic
communications of Apple mobile device users who interact with
Apple's proprietary applications ("apps")--including the App Store,
Apple Music, Apple TV, Books and Stocks--on their Apple mobile
devices.

In contradiction of Apple's privacy promises, Apple tracks and
collects large swaths of personal information from mobile device
users while they use Apple apps, regardless of device user's
privacy settings, including details about device users' app usage,
app browsing communication, personal information, as well as
information relating to the mobile devices itself (collectively
"User Data"). Apple's conduct violates the Pennsylvania Wiretapping
and Electronic Surveillance Control Act and constitutes an invasion
of the privacy rights of mobile Apple device users. The Plaintiff
brings this action on behalf of Pennsylvania citizens whose user
data was tracked and collected by Apple without their consent, and
seek all civil remedies provided under the cause of action,
including but not limited to compensatory, statutory and/or
punitive damages and attorneys' fees and costs, says the
complaint.

The Plaintiff owns an iPhone and regularly uses it to access Apple
apps.

Apple Inc. is an American multinational technology company.[BN]

The Plaintiff is represented by:

          Gary F. Lynch, Esq.
          Kelly K. Iverson, Esq.
          Jamisen A. Etzel, Esq.
          Elizabeth Pollock-Avery, Esq.
          Nicholas A. Colella, Esq.
          Patrick D. Donathen, Esq.
          LYNCH CARPENTER, LLP
          1133 Penn Ave., 5th Floor
          Pittsburgh, PA 15222
          Phone: (412) 322-9243
          Email: gary@lcllp.com
                 kelly@lcllp.com
                 jamisen@lcllp.com
                 elizabeth@lcllp.com
                 nickc@lcllp.com
                 patrick@lcllp.com


ARTHUR FREEMAN: Bailey Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Arthur Freeman, et
al. The case is styled as Jesse Bailey, on behalf of other members
of general public similarly situated v. Arthur Freeman, Does 1-100,
Case No. 34-2023-00333157-CU-OE-GDS (Cal. Super. Ct., Sacramento
Cty., Jan. 18, 2023).

The case type is stated as "Other Employment - Civil
Unlimited."[BN]

The Plaintiff is represented by:

          Anastasia Bronski, Esq.
          PO Box 390744
          Mountain View, CA 94039-0744


ATHLETIC MEDIA: Kaplan Sues Over Illegal Automatic Renewal Scheme
-----------------------------------------------------------------
Rebecca Kaplan, John Murphy, Johnny Pappas, Michael Tisa, and
Charlene Egizi, individually and on behalf of all others similarly
situated v. THE ATHLETIC MEDIA COMPANY, Case No. 4:23-cv-00229
(N.D. Cal., Jan. 18, 2023), is brought against Defendant for
engaging in an illegal "automatic renewal" scheme with respect to
its subscription plans for The Athletic (collectively, the
"Athletic Subscriptions") through its website at
https://theathletic.com and on its mobile application (the
"Athletic Website" and the "Athletic App," respectively).

Relevant to the Plaintiffs' allegations, when consumers sign up for
The Athletic Subscriptions at the Athletic Website or on the
Athletic App, Defendant actually enrolls consumers in a program
that automatically renews customers' Athletic Subscriptions from
month-to-month or year-to-year and results in monthly or annual
charges to the consumer's credit card, debit card, or third-party
payment account (collectively, "Payment Method"). In doing so,
however, the Defendant fails to provide the requisite disclosures
and authorizations required to be made pursuant to California's
Automatic Renewal Law ("ARL").

Pursuant to the ARL, online retailers who offer automatically
renewing subscriptions to California consumers must: obtain
affirmative consent prior to the consumer's purchase; provide the
complete auto-renewal terms in a clear and conspicuous manner and
in visual proximity to the request for consent prior to the
purchase; and provide an acknowledgment identifying an easy and
efficient mechanism for consumers to cancel their subscriptions.
The enrollment process for the Athletic Subscriptions, which can be
completed through the Athletic Website, Athletic Apps, and/or
Athletic Website, uniformly violates each of these requirements.
Defendant also makes it exceedingly difficult and unnecessarily
confusing for consumers to cancel their Athletic Subscriptions.

Specifically, the Defendant systematically violates the ARL by:
failing to present the automatic renewal offer terms in a clear and
conspicuous manner and in visual proximity to the request for
consent to the offer before the subscription or purchasing
agreement is fulfilled; charging consumers' Payment Method without
first obtaining their affirmative consent to the agreement
containing the automatic renewal offer terms; and failing to
provide an acknowledgment that includes the automatic renewal offer
terms, cancellation policy, and information regarding how to cancel
in a manner that is capable of being retained by the consumer. As a
result, all goods, wares, merchandise, or products sent to
Plaintiffs and the Class under the automatic renewal of continuous
service agreements are deemed to be "unconditional gifts" under the
ARL.

Accordingly, the Plaintiffs bring this action individually and on
behalf of all California purchasers of any of Defendant's Athletic
Subscription offerings who, within the applicable statute of
limitations period up to and including the date of judgment in this
action, incurred unauthorized fees for the renewal of their
Athletic Subscriptions. Based on Defendant's unlawful conduct, the
Plaintiffs seek damages, restitution, declaratory relief,
injunctive relief, and reasonable attorneys' fees and costs, for:
violation of California's Unfair Competition Law; conversion;
violation of California's False Advertising Law; violation of
California's Consumers Legal Remedies Act; unjust
enrichment/restitution;  negligent misrepresentation; and fraud,
says the complaint.

The Plaintiffs purchased the Defendant's Athletic Subscription.

The Defendant is an international media company that, among other
activities, publishes and distributes The Athletic, including both
its print and online editions.[BN]

The Plaintiff is represented by:

          Neal J. Deckant, Esq.
          Julia K. Venditti, Esq.
          BURSOR & FISHER, P.A.
          1990 North California Boulevard, Suite 940
          Walnut Creek, CA 94596
          Phone: (925) 300-4455
          Facsimile: (925) 407-2700
          Email: ndeckant@bursor.com
                 jvenditti@bursor.com

               - and -

          Frederick J. Klorczyk III, Esq.
          BURSOR & FISHER, P.A.
          888 Seventh Avenue
          New York, NY 10019
          Phone: (646) 837-7150
          Facsimile: (212) 989-9163
          Email: fklorczyk@bursor.com

BIGTOP WYOMING: Hernandez Sues Over Unpaid Minimum, Overtime Wages
------------------------------------------------------------------
Teodoro Ortiz Hernandez, an individual, and on behalf of all
similarly situated v. BIGTOP WYOMING INC. a Domestic Profit
Corporation, Case No. 1:23-cv-00070 (W.D. Mich., Jan. 18, 2023), is
brought to recover unpaid minimum and overtime wages for the
Defendant's willful and knowing violation of the Fair Labor
Standards Act ("FLSA"), and the Improved Workforce Opportunity Wage
Act ("IWOWA").

The Plaintiff is similarly situated with other employees who worked
for or are working for the Defendant who were not paid minimum wage
for all hours worked. The Plaintiff is similarly situated with
other employees who worked for or are working for the Defendant and
were not compensated the mandated overtime premium for all hours
worked in excess of 40 in a work week. The Defendant violated the
FLSA by failing to pay employees, including the Plaintiff, time and
one-half for each hour worked in excess 40 per workweek. The FLSA
requires the non-exempt employees to be compensated for overtime
work at the mandated overtime wage rate, says the complaint.

The Plaintiff was employed by the Defendant from around April 2022
through December 29, 2022.

BigTop is a Domestic Profit Corporation whose headquarters is
located in Southfield, Michigan.[BN]

The Plaintiff is represented by:

          Robert Anthony Alvarez, Esq.
          AVANTI LAW GROUP, PLLC
          600 28th St. SW
          Wyoming, MI 49509
          Phone: (616) 257-6807
          Email: ralvarez@avantilaw.com


BP EXPLORATION: Bid for Summary Judgment in Bryant Suit Granted
---------------------------------------------------------------
In the case, ERIC BRYANT v. BP EXPLORATION & PRODUCTION, INC., ET
AL., SECTION: D (1), Civil Action No. 17-3114 (E.D. La.), Judge
Windy B. Vitter of the U.S. District Court for the Eastern District
of Louisiana grants:

   a. BP's Daubert Motion to Exclude the Causation Testimony of
      Plaintiff's Expert, Dr. Jerald Cook; and

   b. the Defendants' Motion for Summary Judgment.

Before the Court is BP's Daubert Motion to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook filed by
Defendants BP Exploration & Production Inc., BP America Production
Co., and BP p.l.c. as well as the Defendants' Motion for Summary
Judgment. Halliburton Energy Services, Inc., Transocean Holdings,
LLC, Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. (collectively "Defendants") have joined in both
motions. Bryant opposes both Motions. The Defendants have filed
Replies in support of their Motions and the Plaintiff has filed a
Supplemental Memorandum in Opposition to BP's Daubert Motion to
Exclude the Causation Testimony of Plaintiffs' Expert, Dr. Jerald
Cook.

The case arises from the Deepwater Horizon oil spill in the Gulf of
Mexico in 2010 and the subsequent cleanup efforts of the Gulf
Coast. On Jan. 11, 2013, United States District Judge Carl J.
Barbier, who presided over the multidistrict litigation arising out
of the Deepwater Horizon incident, approved the Deepwater Horizon
Medical Benefits Class Action Settlement Agreement (the "MSA").
However, certain individuals, referred to as "B3" plaintiffs,
either opted out of or were excluded from the MSA. Moore opted out
of the MSA and, accordingly, is a B3 plaintiff.

The Plaintiff this individual action against Defendants on April
10, 2017 to recover for injuries allegedly sustained as a result of
the oil spill. For approximately three months in 2010, he worked as
a beach cleanup worker, tasked with cleaning up oil and oil-covered
debris from the beaches and coastal areas in Mobile and Dauphin
Island, Alabama.

The Plaintiff alleges that the Defendants' negligence and
recklessness in both causing the Gulf oil spill and subsequently
failing to properly design and implement a clean-up response caused
him to suffer myriad injuries including exacerbated asthma, chest
pain, esophageal reflux, neurological disorder hearing loss, and
migraines. Specifically, he seeks to recover economic damages,
personal injury damages -- including damages for past and future
medical expenses and for pain and suffering -- punitive damages,
and attorneys' fees, costs, and expenses.

To help support his claims that exposure to the chemicals present
in the oil spilled by the Defendants caused his particular health
symptoms, the Plaintiff offers the report and testimony of Dr.
Jerald Cook. Dr. Cook is a retired Navy physician with expertise
specifically as an occupational and environmental physician. His
Report is not tailored directly to the Plaintiff's claims; rather,
Dr. Cook's generic causation Report has been utilized by numerous
B3 plaintiffs, including many plaintiffs currently before the Court
as well as in other cases before other sections of the Court.
Accordingly, Dr. Cook's Report pertains only to general causation
and not to specific causation.

The Defendants filed the instant Motion in limine and Motion for
Summary Judgment on Sept. 5, 2022. In their Motion in limine, the
Defendants contend that Dr. Cook's Report should be excluded from
testifying due to, inter alia, Dr. Cook's failure to identify the
harmful level of exposure capable of causing the Plaintiff's
particular injuries for each chemical that Plaintiff alleges to
have been exposed to. Because Dr. Cook should be excluded from
testifying, the Defendants argue, the Court should grant their
Motion for Summary Judgment as the Plaintiff is unable to establish
general causation through expert testimony, a necessary requirement
under controlling Circuit precedent. The Plaintiff opposes both
Motions, arguing that Dr. Cook's Report satisfies the Daubert
standards for reliability and relevancy and, therefore, that
summary judgment is inappropriate.

Judge Vitter explains that the burden of proof is on the B3
plaintiffs to prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the
response. To prove causation, the B3 plaintiffs are required to
provide reliable expert testimony. A plaintiff in such a case
cannot expect lay fact-finders to understand medical causation;
expert testimony is thus required to establish causation.

In the case, the Plaintiffs must provide reliable expert testimony
establishing the requisite level of exposure necessary to cause
each alleged physical harm. Accordingly, failure to properly
identify the level of exposure to a particular chemical at which
harmful effects occur necessarily renders a general causation
opinion to be unreliable and, thus, inadmissible.

Judge Vitter explains that the Court has previously considered the
June 21, 2022 version of Dr. Cook's Report offered the Plaintiff,
finding that the Report fails to meet the Daubert standards for
reliability and helpfulness to the trier of fact. For the same
reasons set forth in detail in that Order and Reasons, she
determines that the Plaintiff has failed in his burden of
establishing the reliability and relevance of his expert's report
and finds it appropriate to grant the Defendants' Motion in limine
to exclude Dr. Cook's Report. The Plaintiff accordingly lacks
expert testimony on general causation.

Without expert testimony, which is required to prove general
causation, Judge Vitter holds that the Plaintiff has failed to
demonstrate a genuine dispute of material fact regarding his claims
that his injuries were caused by exposure to oil. When a plaintiff
has no expert testimony to prove his medical diagnosis or causation
at trial, the plaintiff's suit may be dismissed at the summary
judgment stage. Thus, the Defendants' Motion for Summary Judgment
must be granted as they are entitled to judgment as a matter of law
due to the Plaintiff's failure to establish general causation.

For these reasons, Judge Vitter grants the Defendants' Daubert
Motion to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook; grants the Defendants' Motion for Summary
Judgment; and dismissed with prejudice the Plaintiff's claims
against the Defendants.

A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/59n5xzhd from Leagle.com.


BP EXPLORATION: Court Grants Bid for Summary Judgment in Black Suit
-------------------------------------------------------------------
In the case, JAMARCUS BLACK v. BP EXPLORATION & PRODUCTION, INC.,
ET AL., SECTION: D (1), Civil Action No. 17-3483 (E.D. La.), Judge
Windy B. Vitter of the U.S. District Court for the Eastern District
of Louisiana grants:

   a. BP's Daubert Motion to Exclude the Causation Testimony of
      Plaintiff's Expert, Dr. Jerald Cook; and

   b. the Defendants' Motion for Summary Judgment.

Before the Court is BP's Daubert Motion to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook filed by
Defendants BP Exploration & Production Inc., BP America Production
Co., and BP p.l.c. as well as the Defendants' Motion for Summary
Judgment. Halliburton Energy Services, Inc., Transocean Holdings,
LLC, Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. (collectively "Defendants") have joined in both
motions. Black opposes both Motions. The Defendants have filed
Replies in support of their Motions and the Plaintiff has filed a
Supplemental Memorandum in Opposition to BP's Daubert Motion to
Exclude the Causation Testimony of Plaintiffs' Expert, Dr. Jerald
Cook.

The case arises from the Deepwater Horizon oil spill in the Gulf of
Mexico in 2010 and the subsequent cleanup efforts of the Gulf
Coast. On Jan. 11, 2013, United States District Judge Carl J.
Barbier, who presided over the multidistrict litigation arising out
of the Deepwater Horizon incident, approved the Deepwater Horizon
Medical Benefits Class Action Settlement Agreement (the "MSA").
However, certain individuals, referred to as "B3" plaintiffs,
either opted out of or were excluded from the MSA. Moore opted out
of the MSA and, accordingly, is a B3 plaintiff.

The Plaintiff this individual action against the Defendants on
April 17, 2017 to recover for injuries allegedly sustained as a
result of the oil spill. For approximately one month in 2010, he
worked as a beach cleanup worker, tasked with cleaning up oil and
oil-covered debris from the beaches and coastal areas in
Pascagoula, Mississippi and Mobile, Alabama.

The Plaintiff alleges that the Defendants' negligence and
recklessness in both causing the Gulf oil spill and subsequently
failing to properly design and implement a clean-up response caused
him to suffer myriad injuries including headaches, mouth and throat
swelling, and stomach problems. Specifically, he seeks to recover
economic damages, personal injury damages -- including damages for
past and future medical expenses and for pain and suffering --
punitive damages, and attorneys' fees, costs, and expenses.

To help support his claims that exposure to the chemicals present
in the oil spilled by the Defendants caused his particular health
symptoms, the Plaintiff offers the report and testimony of Dr.
Jerald Cook. Dr. Cook is a retired Navy physician with expertise
specifically as an occupational and environmental physician. His
Report is not tailored directly to the Plaintiff's claims; rather,
Dr. Cook's generic causation Report has been utilized by numerous
B3 plaintiffs, including many plaintiffs currently before the Court
as well as in other cases before other sections of the Court.
Accordingly, Dr. Cook's Report pertains only to general causation
and not to specific causation.

The Defendants filed the instant Motion in limine and Motion for
Summary Judgment on Sept. 5, 2022. In their Motion in limine, the
Defendants contend that Dr. Cook's Report should be excluded from
testifying due to, inter alia, Dr. Cook's failure to identify the
harmful level of exposure capable of causing the Plaintiff's
particular injuries for each chemical that Plaintiff alleges to
have been exposed to. Because Dr. Cook should be excluded from
testifying, the Defendants argue, the Court should grant their
Motion for Summary Judgment as the Plaintiff is unable to establish
general causation through expert testimony, a necessary requirement
under controlling Circuit precedent. The Plaintiff opposes both
Motions, arguing that Dr. Cook's Report satisfies the Daubert
standards for reliability and relevancy and, therefore, that
summary judgment is inappropriate.

Judge Vitter explains that the burden of proof is on the B3
plaintiffs to prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the
response. To prove causation, the B3 plaintiffs are required to
provide reliable expert testimony. A plaintiff in such a case
cannot expect lay fact-finders to understand medical causation;
expert testimony is thus required to establish causation.

In the case, the Plaintiffs must provide reliable expert testimony
establishing the requisite level of exposure necessary to cause
each alleged physical harm. Accordingly, failure to properly
identify the level of exposure to a particular chemical at which
harmful effects occur necessarily renders a general causation
opinion to be unreliable and, thus, inadmissible.

Judge Vitter explains that the Court has previously considered the
June 21, 2022 version of Dr. Cook's Report offered the Plaintiff,
finding that the Report fails to meet the Daubert standards for
reliability and helpfulness to the trier of fact. For the same
reasons set forth in detail in that Order and Reasons, she
determines that the Plaintiff has failed in his burden of
establishing the reliability and relevance of his expert's report
and finds it appropriate to grant the Defendants' Motion in limine
to exclude Dr. Cook's Report. The Plaintiff accordingly lacks
expert testimony on general causation.

Without expert testimony, which is required to prove general
causation, Judge Vitter holds that the Plaintiff has failed to
demonstrate a genuine dispute of material fact regarding his claims
that his injuries were caused by exposure to oil. When a plaintiff
has no expert testimony to prove his medical diagnosis or causation
at trial, the plaintiff's suit may be dismissed at the summary
judgment stage. Thus, the Defendants' Motion for Summary Judgment
must be granted as they are entitled to judgment as a matter of law
due to the Plaintiff's failure to establish general causation.

For these reasons, Judge Vitter grants the Defendants' Daubert
Motion to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook; grants the Defendants' Motion for Summary
Judgment; and dismissed with prejudice the Plaintiff's claims
against the Defendants.

A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/3wr7tzxm from Leagle.com.


BP EXPLORATION: Court Grants Bid for Summary Judgment in Wells Suit
-------------------------------------------------------------------
Judge Sarah S. Vance of the U.S. District Court for the Eastern
District of Louisiana grants the Defendants' unopposed motion for
summary judgment in the lawsuit entitled RABELL WELLS v. B.P.
EXPLORATION & PRODUCTION, INC., ET AL. SECTION "R"(1), Case No.
17-4224 (E.D. La.).

Defendants BP Exploration & Production, Inc., BP America Production
Company, and BP p.l.c.'s (collectively the "BP parties") filed the
motion for summary judgment. Halliburton Energy Services, Inc.,
Transocean Deepwater, Inc., Transocean Holdings, LLC, and
Transocean Offshore Deepwater Drilling, Inc., join the BP parties'
motion.

The case arises from the Plaintiff's alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico by virtue of her presence in the environment in Ocean
Springs, Mississippi. The Plaintiff contends that since her
exposure, she has experienced headaches and sores in her nose,
ears, and mouth.

The Plaintiff's case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. Her case
was severed from the MDL as one of the "B3" cases for plaintiffs,
who either opted out of, or were excluded from, the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement (In re
Oil Spill by Oil Rig "Deepwater Horizon" in the Gulf of Mex., on
Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *2, 12 & n.12
(E.D. La. Apr. 1, 2021)). The Plaintiff opted out of the
settlement.

After the Plaintiff's case was severed, it was reallocated to this
Court. On Nov. 10, 2021, the Court issued a scheduling order that
established, among other deadlines, that the Plaintiff's expert
disclosures had to be "obtained and delivered" to defense counsel
by no later than Dec. 2, 2022.

The Defendants now move for summary judgment, arguing that, because
the Plaintiff has not identified any expert testimony, she is
unable to carry her burden on causation. The Plaintiff has not
filed an opposition to the Defendants' motion.

The Plaintiff asserts claims for general maritime negligence,
negligence per se, and gross negligence against the defendants as a
result of the oil spill. The Defendants contend that the Plaintiff
cannot prove that exposure to oil or dispersants was the legal
cause of her alleged injuries, and thus that she cannot prove a
necessary element of her claims against the Defendants.

Under the general maritime law, Judge Vance says a party's
negligence is actionable only if it is a "legal cause" of the
plaintiff's injuries, citing Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Moreover,
expert testimony is required to establish general causation in
toxic-tort cases like this one.

The Plaintiff has not disclosed any experts on either general or
specific causation. She is, thus, unable to create an issue of
material fact on causation, Judge Vance holds. Accordingly, the
Court grants summary judgment to the Defendants.

For these reasons, the Defendants' motion for summary judgment is
granted. The Plaintiff's complaint is dismissed with prejudice.

A full-text copy of the Court's Order and Reasons dated Jan. 9,
2023, is available at https://tinyurl.com/kvprk39y from
Leagle.com.


BP EXPLORATION: Wins Bid for Summary Judgment in English Suit
-------------------------------------------------------------
In the lawsuit titled ELIZABETH ENGLISH, ET AL. v. B.P. EXPLORATION
& PRODUCTION, INC., ET AL., SECTION "R" (1), Case No. 17-3182 (E.D.
La.), Judge Sarah S. Vance of the U.S. District Court for the
Eastern District of Louisiana grants the Defendants' motion for
summary judgment, and dismisses the Plaintiffs' complaint.

Defendants BP Exploration & Production, Inc., BP America Production
Company, and BP p.l.c.'s (collectively the "BP parties") filed the
unopposed motion for summary judgment. Halliburton Energy Services,
Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and
Transocean Offshore Deepwater Drilling, Inc., join the BP parties'
motion for summary judgment.

The case arises from the alleged exposure of Plaintiffs Elizabeth
and Eugene English to toxic chemicals following the Deepwater
Horizon oil spill in the Gulf of Mexico by virtue of their presence
in the environment in Biloxi, Mississippi.

The Plaintiffs allege that since their exposure, Eugene English has
experienced shortness of breath, acute respiratory distress,
bronchitis, pneumonia, diarrhea, bloody stool, dizziness, asthma
exacerbation, eye burning and irritation, sinus pain, headaches,
nasal congestion and discharge, throat irritation, wheezing, and
skin issues including boils, rashes, blistering, inflammation, and
itching. Elizabeth English has allegedly experienced many of these
same issues, plus nausea, vomiting, and nose bleeds, among other
issues.

The Plaintiffs' case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. Their case
was severed from the MDL as one of the "B3" cases for plaintiffs
who either opted out of, or were excluded from, the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement (In re
Oil Spill by Oil Rig "Deepwater Horizon" in the Gulf of Mex., on
Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *2, 12 & n.12
(E.D. La. Apr. 1, 2021)). The Plaintiffs opted out of the
settlement.

After the Plaintiffs' case was severed, it was reallocated to this
Court. On Nov. 10, 2021, the Court issued a scheduling order that
established, among other deadlines, that the Plaintiffs' expert
disclosures had to be "obtained and delivered" to defense counsel
by no later than Nov. 10, 2022.

The Defendants now move for summary judgment, arguing that, because
the Plaintiffs have not identified any expert testimony, they are
unable to carry their burden on causation. The Plaintiffs have not
filed an opposition to the Defendants' motion.

The Plaintiffs assert claims for general maritime negligence,
negligence per se, and gross negligence against the Defendants as a
result of the oil spill. The Defendants contend that the Plaintiffs
cannot prove that exposure to oil or dispersants was the legal
cause of their alleged injuries, and thus, that they cannot prove a
necessary element of their claims against Defendants.

Judge Vance notes that the Plaintiffs have not disclosed any
experts on either general or specific causation. They are, thus,
unable to create an issue of material fact on causation.
Accordingly, the Court grants summary judgment to the Defendants.

For these reasons, Judge Vance rules the Defendants' motion for
summary judgment is granted. The Plaintiffs' complaint is dismissed
with prejudice.

A full-text copy of the Court's Order and Reasons dated Jan. 9,
2023, is available at https://tinyurl.com/5wu2can7 from
Leagle.com.


CALIBER HOME LOANS: Katz Suit Transferred to N.D. Texas
-------------------------------------------------------
The case styled as Samuel Katz, individually and on behalf of all
others similarly situated v. Caliber Home Loans, Inc., Case No.
4:22-cv-05680 was transferred from the U.S. District Court for the
Northern District of California, to the U.S. District Court for the
Northern District of Texas on Jan. 19, 2023.

The District Court Clerk assigned Case No. 3:23-cv-00145-S to the
proceeding.

The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.

Caliber Home Loans, Inc. -- https://www.caliberhomeloans.com/ -- is
a full-service national mortgage lender and agency direct
seller/servicer.[BN]

The Plaintiff is represented by:

          Adam J. Schwartz, Esq.
          9465 Wilshire Blvd., Ste 300
          Beverly Hills, CA 90212
          Phone: (323) 455-4016
          Fax: (323) 302-9716
          Email: adam@ajschwartzlaw.com

               - and -

          Anthony I. Paronich, Esq.
          PARONICH LAW, P.C.
          350 Lincoln St., Suite 2400
          Hingham, MA 02043
          Phone: (617) 485-0018
          Fax: (508) 318-8100
          Email: anthony@paronichlaw.com

The Defendants are represented by:

          Thomas Nathaniel Abbott, Esq.
          David T. Biderman, Esq.
          Kristine Elizabeth Kruger, Esq.
          Simon M. Feng, Esq.
          PERKINS COIE LLP
          505 Howard Street, Suite 1000
          San Francisco, CA 94105
          Phone: (415) 344-7000
          Fax: (415) 344-7050
          Email: tabbott@perkinscoie.com
                 kkruger@perkinscoie.com
                 SFeng@perkinscoie.com


CANADA: Federal Ruling in CAF Sexual Misconduct Suit Discussed
--------------------------------------------------------------
Aaron D'Andrea at Global News report that Ottawa's decision to
appeal a recent Federal Court ruling that would extend the deadline
for submitting claims in a military sexual misconduct class action
settlement is "troubling," according to law firms representing
people who had sought to join.

The federal government said it would be launching an appeal after a
Federal Court judge ruled on Jan. 6 that late claims can be
accepted in the Canadian Armed Forces-Department of National
Defence (CAF-DND) Sexual Misconduct Class Action Settlement until
Feb. 5.

Ottawa said that ruling "compromises the integrity" of the final
settlement agreement negotiated by the parties and approved by the
court, but a statement from law firms representing claimants
disputes that.

"It is baseless and deeply troubling for the government to publicly
state that the Federal Court's ruling on late claims 'compromises
the integrity' of the settlement agreement," law firms Koskie
Minsky LLP and RavenLaw told Global News in a statement.

"On the contrary, the court's decision is consistent with the
settlement agreement as well as the principles underlying it,
including the importance of having a process that is restorative
and trauma-informed."

The Federal Court made its decision on an application originally
brought by 12 individuals who were seeking to be able to join the
class action after missing the deadline to do so last year. Koskie
Minsky LLP argued in federal court filings that some 640 people may
be eligible if the late applications would be approved.

The reasons given by late claimants for being unable to meet the
deadline were due to the emotional and psychological difficulties
they suffered as a result of the sexual misconduct experienced in
the CAF-DND, the law firm suggested.

According to the class action settlement website, roughly 20,000
people have come forward so far.

In a notice of claim filed with the Federal Court of Appeal, the
Department of Justice argues that the Federal Court judge
misinterpreted the section of the final settlement agreement that
allows for claims to be submitted beyond the deadline in certain
circumstances.

The government also claims that the judge erred by "relying on
irrelevant factors," including the current number of claimants
seeking leave to submit their application beyond the deadline.

"The fact that the Administrator has actually received hundreds of
claims since the end of the extension period is not a relevant
factor in assessing what the parties intended when they stipulated
that 'No Individual Application shall be accepted for substantive
review by the Administrator more than 60 days after the Individual
Application Deadline without leave of the Court,'" reads the
government's notice of appeal.

The government also argues that the Federal Court judge made errors
of law in his decision. Justice Minister David Lametti would not
elaborate further on the appeal when asked by Global News,
referring questions on the case to the national defence minister.

"As a government, we have taken the question of sexual assault and
sexual harassment in the military to be a top priority," he said,
adding he's working with Anita Anand on implementing
recommendations involving his department that were made in a recent
review into military sexual misconduct.

"But for the decision itself and going in front of the court, I'm
going to sadly turn you to Minister Anand to speak to that."

In 2019, the government reached a $900-million settlement over a
class-action lawsuit from survivors and victims of military sexual
misconduct. More than 18,000 survivors and victims had come forward
to submit claims as of November 2021, shortly before the deadline.

In 2018, Prime Minister Justin Trudeau raised concerns over how the
Justice Department was arguing in military sexual harassment cases,
saying he would ask the attorney general to follow up with
government lawyers to "make sure that we argue things that are
consistent with this government's philosophy."

"Obviously, what the lawyers have been argument [sic] does not
align with what my belief or what this government believes," he
said on Feb. 7, 2018.

Sexual misconduct has plagued the CAF for years, and the Trudeau
government has promised reform within the military.

Late last year, Anand unveiled what she described as "an ambitious
roadmap" to reform CAF culture. In her report tabled Dec. 12, Anand
said she had directed DND and CAF to pursue "an all-hands-on-deck
effort" to address the dozens of recommendations made by former
Supreme Court of Canada justice Louise Arbour when she released her
long-anticipated report into the culture of the Canadian military
in May.

The review was formally launched a year before the report was
released - in May 2021 - in response to exclusive reporting by
Global News into allegations of sexual misconduct at the highest
ranks of the CAF.

Arbour's report found the CAF was an institution that is
fundamentally out of sync with the values of Canadian society, and
that poses a "liability" to the country.[GN]

CENTER FOR HOUSING: Geist Sues Over Unpaid Overtime Wages
---------------------------------------------------------
Danger Geist, on behalf of himself and all others similarly
situated v. The Center for Housing Solutions, Inc., Case No.
4:23-cv-00028-GKF-SH (N.D. Okla., Jan. 19, 2023), is brought
pursuant to the federal Fair Labor Standards Act, and the federal
Portal-to-Portal Pay Act (collectively "FLSA") for the Defendant's
failure to pay the Plaintiff time and one-half his regular rate of
pay for all hours worked over forty during each seven-day workweek
in addition to the Defendant's violations of the FLSA's
anti-retaliation provision.

The Plaintiff regularly worked more than forty hours per seven-day
workweek performing outreach specialist work for the Defendant but
was not paid time and one-half his regular rate of pay for those
overtime hours worked. On May 27, 2021, the Plaintiff told his
manager, Mr. Tyler Parette, that the Defendant was opening itself
to legal action if it did not pay overtime compensation to the
Plaintiff and other outreach specialists who worked more than forty
hours in a workweek. On June 7, 2021, the Defendant terminated the
Plaintiff's employment. Defendant's termination of the Plaintiff's
employment was in retaliation for the Plaintiff engaging in
protected activity under the FLSA--complaining of unpaid overtime
wages, says the complaint.

The Plaintiff was an employee of the Defendant's from January 19,
2021 to June 7, 2021.

The Defendant is and has been an institution primarily engaged in
the care of the sick, the aged, the mentally ill or defective who
resided on the premises of such institution.[BN]

The Plaintiff is represented by:

          Allen R. Vaught, Esq.
          VAUGHT FIRM, LLC
          1910 Pacific Ave., Suite 9150
          Dallas, Texas 75201
          Phone: (972) 707-7816
          Facsimile: (972) 591-4564
          Email: avaught@txlaborlaw.com


CENTURY HEALTH: Harris Files TCPA Suit in S.D. Florida
------------------------------------------------------
A class action lawsuit has been filed against Century Health and
Life, LLC. The case is styled as Sonya Cusack, Beverly Bierwerth,
individually and on behalf of others similarly situated v. Century
Health and Life, LLC, Case No. 0:23-cv-60108-RNS (S.D. Fla., Jan.
19, 2023).

The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.

Century Health & Life makes it easier for Americans to find
suitable health insurance plans.[BN]

The Plaintiffs are represented by:

          Mohammad Reza Kazerouni, Esq.
          KAZEROUNI LAW GROUP APC
          245 Fischer Ave, D1
          Costa Mesa, CA 92626
          Phone: (949) 612-9999
          Fax: (800) 520-5523
          Email: mike@kazlg.com

               - and -

          Ryan L. McBride, Esq.
          KAZEROUNI LAW GROUP, APC
          301 E. Bethany Home Road, Ste. C-195
          Phoenix, AZ 85012
          Phone: (800) 400-6808
          Email: ryan@kazlg.com


COCA-COLA CO: Juice Drink Contains Toxic Chemicals, Suit Claims
---------------------------------------------------------------
Marian Johns at legalnewsline.com reports that a New York man
claims Simply Tropical juice drink is falsely labeled as "all
natural" when it contains synthetic and toxic chemicals.

Joseph Lurenz, individually and on behalf of all others similarly
situated, filed a complaint Dec. 28 in the U.S. District Court for
the Southern District of New York against The Coca-Cola Company and
The Simply Orange Juice Company, alleging violation of the New York
Deceptive Trade Practices Act and other claims.

Lurenz alleges in his class action that Simply Tropical juice drink
is deceptively labeled as "all natural" when testing has revealed
the drink contains polyfluoroalkyl substances (PFAS). He claims the
drink's labeling of "all natural ingredients" with "nothing to
hide" and using the word "simply" misleads consumers to believe the
product is healthy when it contains toxic chemicals that have been
associated with negative health effects including reproductive
issues, developmental delays, reduced immunity, hormone disruption
and increased cholesterol levels.

Lurenz alleges that the defendants knew that the drink product
contained PFAS chemicals which pose a risk and failed to disclose
it to consumers. He claims the defendants' frauduently
misrepresented that the product was all natural and concealed the
information in order to delay lawsuits and other causes of action.


Lurenz and the class seek monetary relief, interest, trial by jury
and all other just relief. They are represented by Jason Sultzer
and Daniel Markowitz of The Sultzer Law Group PC in Poughkeepsie
;Nick Suciu, III of Milberg, Coleman Bryson Phillips, Grossman PLLC
in Bloomfield Hills, Michigan; Gary Klinger of Milberg, Coleman
Bryson Phillips, Grossman in Chicago; Erin Ruben of Milberg,
Coleman Bryson Phillips, Grossman in Raleigh, North Carolina; and
J. Hunter Bryson of Milberg, Coleman Bryson Phillips, Grossman in
New York City.

U.S. District Court for the Southern District of New York case
number 7:22-CV-10941-NSR [GN]

COINBASE GLOBAL: Faces Class Action Over Flare Airdrop Tokens
-------------------------------------------------------------
Ashish Kumar, writing for CoinGape, reports that Flare Airdrop is
one of the much anticipated events in the recent history of the
digital asset industry. However, the distribution of FLR tokens
didn't make it to the expectation of Ripple's native token, XRP
holders. In this disappointment, a class action lawsuit has been
filed against Coinbase, crypto exchange.

Flare community to go against Coinbase?
As per a complaint filed in the United States District Court,
Plaintiff Dallas Woody has filed a class action lawsuit against
Coinbase for its failure to provide their customers with Songbird
and Flare tokens. It is alleged that the crypto exchange publicly
agreed to distribute the airdrop among the XRP holders.

It mentioned that the lawsuit is filed individually and on the
behalf of all others similarly situated to the Flare Airdrop.
However, the complaint also carries the name of Coinbase's CEO
Brain Armstrong. While it highlights that the objection is based on
personal knowledge and the investigation of counsel.

Plaintiff believes that some evidentiary support will exist for and
later support the allegations set against Coinbase.

Earlier, Coingape reported that the Ripple CTO criticized the Flare
Network's airdrop process.

Coinbase illegally converted FLR tokens as own property?
As per the filings, Coinbase permitted the buying, selling and
custody of XRP tokens from February 28, 2019. However, due to the
popularity and utility of some digital asset projects sought to
airdrop their newly created cryptos to XRP holders and Flare
Network was one of them.

Flare Network decided to airdrop FLR to XRP holders over a snapshot
of engaging in XRP digital wallets. The Snapshot procedure happened
on December 12, 2020. While Coinbase made public affirmations of
participation in the Flare Airdrop.

Plaintiff alleged that Coinbase refused to distribute SGB and FLR
tokens despite having received them from Flare Network. He further
asserted that the defendants have unlawfully converted the XRP
holders' property. This action has breached Califonia's Unfair
competition Law and committed several other tortious acts. [GN]

COSTCO WHOLESALE: Court Denies Bid to Dismiss Wright Class Suit
---------------------------------------------------------------
In the case, MELINDA WRIGHT, Plaintiff v. COSTCO WHOLESALE
CORPORATION, Defendant, Case No. 22-cv-04343-WHO (N.D. Cal.), Judge
William H. Orrick of the U.S. District Court for the Northern
District of California denies Costco's motion to dismiss the class
action complaint.

Costco moves to dismiss a class action complaint filed by Wright
alleging that Costco's representations that its canned tuna is
"dolphin safe" are false, deceptive, and misleading.

The 58-page First Amended Complaint includes a host of background
information about fishing practices and legislation, along with
allegations more specific to Wright's claims. In 2021, Wright
purchased a package of eight cans of Kirkland Signature White
Albacore Tuna in Water from a Costco store in Ukiah, California. In
doing so, the FAC alleges, she relied upon promises and
representations by Costco on the product's labeling, packaging, and
advertising that the product was "dolphin safe." Because of those
representations, Wright believed that the tuna were caught using
fishing methods that do not kill or harm dolphins.

The FAC describes an extensive marketing campaign by Costco
premised on its dolphin safety and sustainability promises and
representations. According to the FAC, Costco represents to
consumers that its products are dolphin-safe by representing that
its tuna is sustainably sourced in a manner than does not harm or
kill dolphins. But, it alleges, these representations are false and
deceptive because the manufacturing of the products involve
unsustainable fishing practices that are known to kill and harm
dolphins and other marine life. The FAC takes issue with a few of
those practices.

The FAC alleges that Costco deceives consumers by promising a
higher dolphin-safe standard than what the Dolphin Protection
Consumer Information Act requires and then breaks that promise by
utilizing fishing methods known to harm and kill dolphins. It
further alleges that Wright and reasonable consumers relied and
rely on Costco's false labeling and advertising claims that the
products are dolphin safe' in making the decision to purchase the
products, and that had Wright known that the products were not
dolphin-safe, she would not have purchased the products, and
certainly would not have paid a 'premium' for such a valued
perceived benefit.

Wright filed the suit on July 27, 2022. After Costco moved to
dismiss, she filed the FAC, which alleges six claims: violations of
California's Consumers Legal Remedies Act ("CLRA"), False
Advertising Law ("FAL"), and Unfair Competition Law ("UCL") (on
behalf of the California subclass), along with breaches of express
and implied warranty, and unjust enrichment (on behalf of the
nationwide class).

Costco again moved to dismiss.

First, Costco requests judicial notice of portions of a Federal
Trade Commission ("FTC") response to a Freedom of Information Act
dated Sept. 15, 2020. The attached exhibit includes nearly 60 pages
of documents of varying types, including the FTC's response letter,
the receipt for the documents, a copy of a regulation on
dolphin-safe labeling standards, a press release from the Animal
Legal Defense Fund, and an FTC complaint filed by the Animal Legal
Defense Fund. Wright objects to the request, describing the
material as irrelevant, misleading, and/or disputed 'evidence' and
facts.

Judge Orrick denies Costco's request. He says he may only
judicially notice a fact that is not subject to reasonable dispute
because it is either generally known within the Court's territorial
jurisdiction or can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned. He says
neither reason applies.

Second, Costco argues that Wright has not alleged a concrete injury
because the FAC does not allege that any tuna she purchased from
Costco came from a vessel that either deployed a net that encircled
any dolphin or that killed or seriously injured any dolphin. And,
it contends, there is no concrete injury to [Wright] that arises
from the mere speculative possibility that dolphins could have been
harmed or seriously injured through use of longline fishing
methods.

Costco misses the crux of Wright's complaint, Judge Orrick holds.
He says Wright was harmed by paying for a product that she would
not have purchased but for Costco's deceptive statements, and/or by
paying a premium price for that product. The same type of injury
was enough to establish standing in Gardner v. Starkist Co., 418
F.Supp.3d 443, 458-59 (N.D. Cal. 2019). This also aligns with the
well-established principle that a monetary harm is a sufficiently
concrete injury. The FAC clearly alleges a monetary harm in the $15
that Wright paid for the product. Hence, Costco's motion to dismiss
the FAC for lack of standing is denied.

Costco's remaining arguments flow from its apparent understanding
of the case as essentially an attack on Costco's use of a dolphin
safe logo, authorized by the DPCIA and a direct challenge to the
DPCIA uniform 'dolphin safe' labeling standard. Its core argument
is essentially this: Wright has not adequately alleged that Costco
set its own dolphin-safe standard higher than that required by the
DPCIA.

Judge Orrick holds that the dolphin-safe logo on the product label,
packaging, and online advertising would lead a reasonable consumer
to believe that the product was indeed dolphin-safe and did not
result in harm to dolphins. The alleged statements about Costco's
sustainable seafood sourcing and related practices only bolster
this already-reasonable belief.

In sum, Judge Orrick concludes that Wright has adequately alleged a
promise by Costco that the product is dolphin-safe, above what the
DPCIA requires. As a result, her claims are not preempted, nor is
the doctrine of primary jurisdiction applicable. Moreover, she has
satisfied Rule 9(b)'s heightened pleading requirement for fraud and
alleged that a reasonable consumer would be deceived by Costco's
representations. Her claims are plausible. Accordingly, Costco's
motion to dismiss is denied.

A full-text copy of the Court's Jan. 17, 2023 Order is available at
https://tinyurl.com/2xte67hf from Leagle.com.


DRAFTKINGS INC: S.D.N.Y. Dismisses Securities Class Action Suit
---------------------------------------------------------------
jdsupra.com reports that on January 10, 2023, Judge Paul Engelmayer
of the United States District Court for the Southern District of
New York dismissed with prejudice a putative class action asserting
claims under the Securities Exchange Act of 1934 against an online
sports gaming and betting company and certain of its executives. In
re DraftKings Inc. Sec. Litig., 2023 WL 145591 (S.D.N.Y. Jan. 10,
2023). Plaintiffs alleged that the company made misrepresentations
and omissions regarding whether a target company it acquired had
gambling operations in jurisdictions where gambling was illegal.
The Court held that plaintiffs failed to adequately allege
actionable misrepresentations or scienter.

At the outset, the Court explained that when a securities fraud
claim is premised on alleged predicate violations of law-here, the
target's allegedly illegal operations in jurisdictions that
supposedly prohibited gambling-the facts of the underlying
violation must be pleaded with particularity. A plaintiff who is
unable to do so cannot meet its burden of explaining what rendered
the challenged statements false or misleading. Id. at *18. And the
Court also stressed what it described as a "global deficiency"
affecting plaintiffs' theories of fraud-their claims regarding the
target's business practices were based virtually entirely on a
short-seller's report that was, in turn, largely based on unsourced
or anonymously-sourced allegations. Id. More specifically,
plaintiffs' allegations derived from that short-seller report were
held insufficient because (i) the report's author had an interest
in driving down the company's stock price, requiring the Court to
carefully analyze the report's "factual attributions," and (ii) the
report's sources were "unidentified and unspecified" and, even
where allegations were generally attributed to unnamed former
employees, they were "devoid of details lending themselves to
corroboration." Id. at *18–20. Moreover, plaintiffs' counsel's
inability to confirm any of the statements in the report with
either the short-seller's founder or any of the purported sources
identified in the report warranted the Court putting aside the
complaint's allegations based on the short-seller report as
ill-pled. Id. at *20.

The Court determined that other allegations also lacked
particularized detail. For example, plaintiffs alleged that the
target was conducting illegal gambling operations in Vietnam, based
on statements by purported former employees and the allegation that
the target's website showed that it accepted Vietnamese currency;
the Court, however, concluded that allegations attributed to former
employees lacked factual detail regarding those individuals'
positions and the source of their knowledge, and, further, merely
accepting Vietnamese currency was insufficient to show illegal
activity in Vietnam. Id. at *22–23. The Court also observed that
plaintiffs had not sufficiently alleged that certain jurisdictions
actually prohibited the target's alleged gambling activities. For
example, the Court noted that plaintiffs pointed to certain
websites regarding Indonesian law that the Court determined did not
categorically show that all gambling activities were illegal. Id.
at *24.

The Court further rejected allegations derived from the analysis of
a state lottery commission, which plaintiffs argued showed that the
target had operated in Iran in violation of Iranian law and United
States sanctions. The Court explained that while the lottery
commission's analysis revealed that the target had identified a
single instance in which wagers had been placed by a user based in
Iran, it also explained that the target had immediately taken steps
to end its relationship with a sublicensee that had allowed those
wagers to be placed. Id. at *25–26. The Court found this conduct
did not support an allegation that the target had been operating in
Iran for nearly five years, nor otherwise suggest that the target
had not complied with United States sanctions or Iranian law. Id.
at *25–26, *28. The Court similarly rejected plaintiffs'
generalized contention that the target violated unspecified
anti-money laundering provisions. Id. at *28–29.

The Court also rejected plaintiffs' theories of scienter.
Plaintiffs first contended defendants had a motive and opportunity
to commit fraud due to alleged trades the company's executives made
in the company's stock. But the Court determined that the trades in
question were all made by sellers who retained more shares than
they sold (with several sellers increasing their position during
the relevant period), ten of the transactions were made pursuant to
Rule 10b5-1 plans, and the remaining five were made pursuant to
underwriting agreements that preceded the company's public
offerings and provided for sales immediately following a specified
lock-up period. The Court accordingly concluded that none of these
trades supported an inference of scienter. Id. at *33–35.

Plaintiffs otherwise attempted to argue that the company's
executives understood that the target had illegal gambling
operations, but the Court rejected such allegations as conclusory.
Id. at *36. The Court also observed that materials referenced in
the complaint were consistent with the absence of fraudulent
intent, as the lottery commission report also noted the target had
retained counsel to provide it with legal advice about how to
conduct operations in certain jurisdictions. Id. at *37. And the
Court noted that the company's response to the short-seller report,
in which the company stated it was "comfortable" with its
assessment of the target and declined to "comment on speculation or
allegations made by former" employees of the target, did not
constitute an admission that the target had violated the law. Id.

The Court also explained that the complaint's allegations of
violations of Items 105 and 303 of Regulation S-K were insufficient
for reasons similar to those that defeated plaintiffs'
misrepresentation claims, namely, because there were insufficient
allegations that the target operated improperly or that the company
knew of a material risk or uncertainty presented by those
purportedly improper operations. Id. at *37–38.

Because plaintiffs already had amended the complaint twice, the
Court concluded that further amendment would be futile and
dismissed the action with prejudice. Id. At *39. [GN]

ESS INC: Faces Class Action Over Securities Law Violations
----------------------------------------------------------
On January 12, ESS Inc. (NYSE: GWH), a leading manufacturer of
long-duration energy storage solutions, was notified of the filing
of class action litigation alleging violations of Federal
securities laws. This meritless lawsuit, which ESS intends to
vigorously defend, is based upon a report by Grizzly Research, a
self-described short seller, which was issued in December. The
report alleges that ESS is a related party of Energy Storage
Industries Asia Pacific, our customer in Australia. That assertion
is false. The report contains numerous errors, unsupported
speculation, and draws misleading and flawed conclusions. ESS was
not contacted during the development of the report nor given the
opportunity to provide factual information that would have easily
refuted the incorrect claims made throughout the report.

ESS is committed to deploying long-duration energy storage
solutions using iron flow battery technology to meet growing global
demand. We are proud to partner with major U.S. and international
utilities, developers and service providers to deploy the storage
solutions needed to enable renewable energy deployment and deep
decarbonization of the grid.

                      About ESS Inc.

At ESS (NYSE: GWH), our mission is to accelerate global
decarbonization by providing safe, sustainable, long-duration
energy storage that powers people, communities and businesses with
clean, renewable energy anytime and anywhere it's needed. As more
renewable energy is added to the grid, long-duration energy storage
is essential to providing the reliability and resiliency we need
when the sun is not shining and the wind is not blowing.

Our technology uses earth-abundant iron, salt and water to deliver
environmentally safe solutions capable of providing up to 12 hours
of flexible energy capacity for commercial and utility-scale energy
storage applications. Established in 2011, ESS Inc. enables project
developers, independent power producers, utilities and other large
energy users to deploy reliable, sustainable long-duration energy
storage solutions. For more information visit www.essinc.com. [GN]

EXPERIAN INFORMATION: Has Until Feb. 6 to Respond to Saucedo Suit
-----------------------------------------------------------------
Magistrate Judge Helena M. Barch-Kuchta of the U.S. District Court
for the Eastern District of California allows the Defendant to file
a response to the complaint no later than Feb. 6, 2023, in the
lawsuit entitled VALERIANO SAUCEDO, Plaintiff v. EXPERIAN
INFORMATION SOLUTIONS, INC., Defendant, Case No. 1:22-cv-01584-HBK
(E.D. Cal.).

Defendant Experian Information Solutions filed an ex parte
application to extend time to respond to Complaint on Jan. 4, 2023.
The Plaintiff filed a response in opposition that same day.

Rule 6(b) of the Federal Rules of Civil Procedure provides for
extending deadlines for good cause shown, if the request to extend
time is made before the original time, or its extension expires;
or, on a motion made after the time has expired, if the party
failed to act because of excusable neglect.

Judge Barch-Kuchta notes that the Defendant timely filed the
instant motion and has shown good cause for the extension of time.
Notably, a review of the docket reveals the Plaintiff filed the
Complaint on Dec. 8, 2022, and the Defendants received service of
process on Dec. 19, 2022. There were two recognized, intervening
federal holidays following the date of service of process. This
case is a class action, which by their nature are deemed complex
civil actions.

Despite the Plaintiff not stipulating to the proposed 30-day
extension, the Court encourages civility and mutual respect among
members of the bar that ought to encourage attorney consent to one
another's reasonable, nonprejudicial, good faith extension
requests.

Judge Barch-Kuchta finds the Defendant fails to explain how a
30-day extension of time is unreasonable, prejudicial or not made
in good faith. Further, the Court's Local Rules recognize that the
parties may stipulate to a 28-day extension of time without court
approval. Thus, the Court finds good cause to grant the Defendant
the 28-day extension of time already deemed reasonable by the
Court.

Accordingly, Judge Barch-Kuchta rules that:

   1. the Defendant's motion for an extension of time is granted
      in part; and

   2. the Defendant will file a response to the Complaint no
      later than Feb. 6, 2023, absent further motion and good
      cause shown.

A full-text copy of the Court's Order dated Jan. 9, 2023, is
available at https://tinyurl.com/2exk8t36 from Leagle.com.


FIRSTENERGY CORPORATION: Faces Ramsey Suit Over Unpaid OT for CSRs
------------------------------------------------------------------
HEIDI RAMSEY, individually and on behalf of all others similarly
situated, Plaintiff v. FIRSTENERGY CORPORATION, Defendant, Case No.
5:23-cv-00086-SL (N.D. Ohio, January 17, 2023) is a class action
against the Defendant for its failure to compensate the Plaintiff
and similarly situated customer service representatives (CSRs)
overtime pay for all hours worked in excess of 40 hours in a
workweek in violation of the Fair Labor Standards Act.

Ms. Ramsey worked for FirstEnergy as a CSR from approximately April
2021 to June 2021.

FirstEnergy Corporation is an electric services company, with its
principal place of business located in Akron, Ohio. [BN]

The Plaintiff is represented by:                                   
                                                    
                          
         Drew Legando, Esq.
         Edward S. Jerse, Esq.
         MERRIMAN LEGANDO WILLIAMS & KLANG, LLC
         1360 West 9th Street, Suite 200
         Cleveland, OH 44113
         Telephone: (216) 522-9000
         Facsimile: (216) 522-9007
         E-mail: drew@merrimanlegal.com
                 edjerse@merrimanlegal.com

                - and -

         SHAVITZ LAW GROUP, P.A.
         951 Yamato Road, Suite 285
         Boca Raton, FL 33421

GEMINI TRUST: Pomerantz Law Files Securities Class Action Lawsuit
-----------------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against Gemini Trust Company, LLC, and certain officers. The class
action, filed in the Supreme Court of the State of New York, County
of New York, and docketed under Index No. 650076/2023, is on behalf
of a class consisting of all persons and entities other than
Defendants that invested in Gemini Earn (also referred to herein as
"Earn") or otherwise purchased Gemini Interest Accounts ("GIAs")
and were harmed thereby. Plaintiff pursues claims against the
Defendants under the Securities Act of 1933 and the New York
General Business Law, as well as common law claims for fraudulent
inducement, fraudulent concealment, fraudulent misrepresentation,
negligent misrepresentation, breach of contract, unjust enrichment,
and civil conspiracy.

If you invested in Gemini Earn or otherwise purchased GIAs and were
harmed thereby, a copy of the Complaint can be obtained at
www.pomerantzlaw.com. To discuss this action, contact Robert S.
Willoughby at newaction@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and a summary of their transactions in Gemini Earn and/or GIAs.

Gemini is a privately-owned cryptocurrency exchange launched in
2014 by Defendants Cameron Winklevoss and Tyler Winklevoss and
headquartered in New York, New York. Gemini purportedly lets
customers buy, sell, trade, and securely store more than 60
cryptocurrencies. One of the products Gemini offers is the GIA, a
yield-bearing account sold through the Company's lending platform
Gemini Earn, which allows users to lend out their crypto holdings
in exchange for interest payments.

According to the Gemini website, the Earn platform is partnered
with various third-party crypto lenders who act as "accredited
borrowers" of Gemini customer assets. Gemini has stated that its
partners are "vetted through a risk management framework which
reviews our partners' collateralization management process."
Moreover, the Company stated that customers were able to "redeem
[their] assets at any time[,]" and "in all cases our partners are
required to return your funds to you within five business days."
Gemini's primary third-party partner at all relevant times was
Genesis Global Capital, LLC ("Genesis").

In early November 2022, the cryptocurrency exchange FTX experienced
a significant liquidity crisis after it was revealed that customer
assets had been misappropriated to cover the trading losses and
repay the outstanding debts of Alameda Research ("Alameda"), a
crypto-trading firm founded by FTX's former Chief Executive Officer
Sam Bankman-Fried. On November 14, 2022, Gemini sent an email
assuring its customers that Gemini had no exposure to FTT tokens or
Alameda and no material exposure to FTX.

However, on November 16, 2022, Gemini announced that Genesis had
halted customer withdrawals upon realizing it would not be able to
return customer funds within the five-business day timeframe
advertised on the Gemini Earn website. Gemini subsequently paused
withdrawals on the Earn program. Market publications later revealed
that the ban on withdrawals came after Genesis suffered losses of
over $1.8 billion from loans it made to failed crypto firms
including Alameda.

As a result of Defendants' wrongful acts and omissions, investors
in Gemini Earn and GIAs have suffered significant losses and
damages.

The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
London, and Paris is acknowledged as one of the premier firms in
the areas of corporate, securities, and antitrust class litigation.
Founded by the late Abraham L. Pomerantz, known as the dean of the
class action bar, the Pomerantz Firm pioneered the field of
securities class actions. Today, more than 80 years later, the
Pomerantz Firm continues in the tradition he established, fighting
for the rights of the victims of securities fraud, breaches of
fiduciary duty, and corporate misconduct. The Firm has recovered
numerous multimillion-dollar damages awards on behalf of class
members. See www.pomerantzlaw.com.[GN]

GEOVERA SPECIALTY: Bid to Strike Alexander's Class Claims Denied
----------------------------------------------------------------
In the case, LARRY W. ALEXANDER, ET AL. v. GEOVERA SPECIALTY
INSURANCE CO., Case No. 2:21-cv-03166 (W.D. La.), Magistrate Judge
Kathleen Kay of the U.S. District Court for the Western District of
Louisiana, Lake Charles Division, denies the Defendant's Motion to
Strike the class allegations in the Plaintiff's third amended
complaint.

The action is a putative class action against the Defendant for
breach of insurance agreement and violation of Louisiana Insurance
Code Section 22:1892. In their third amended complaint, the
Plaintiffs allege that the Defendant engaged in a corporate pattern
and practice of improper claims adjusting and payment.
Specifically, they allege that the Defendant's actions caused its
Louisiana policyholders (the Plaintiffs and the putative class
members) to receive less in payment on their property insurance
claims than it was obligated to pay or than the Plaintiffs and the
putative class members were entitled to receive.

The Plaintiffs define the putative class as "All property insurance
policyholders of GEOVERA SPECIALTY INSURANCE COMPANY in the State
of LOUISIANA who, between Aug. 31, 2019 and the present made a
claim and received a loss payment from Defendant for damage to
their insured property, which claim included one or more of the
following specified material components: plywood, drywall, drip
edge and roofing felt."

The Defendant filed the instant motion to strike the class
allegations in the Plaintiffs' third amended complaint. According
to the Defendant, the Plaintiff cannot satisfy Federal Rule of
Civil Procedure 23(b)(3)'s predominance requirement for class
certification.

In their opposition, the Plaintiffs disagree and urge the Court to
allow the parties to conduct discovery instead of granting the
motion to strike at this early stage of the proceedings. The
Defendant replies that courts can and do strike class allegations
on the pleadings where it is apparent from the pleadings that a
class cannot be certified.

After reviewing the parties' arguments and the relevant case law,
Judge Kay finds it would a better practice to assess the propriety
of the class allegations through a motion for class certification
after discovery has occurred rather than on the current motion to
strike. Due to the foregoing, she finds that it is too early in the
litigation to determine the sufficiency of the class allegations.
Thus, the motion to strike is denied.

A full-text copy of the Court's Jan. 13, 2023 Memorandum Order is
available at https://tinyurl.com/munk23zc from Leagle.com.


HERSHEY COMPANY: Durgin Suit Removed to E.D. Pa.
------------------------------------------------
The case styled DENETHIA DURGIN, on behalf of herself and all
others similarly situated, Plaintiff v. THE HERSHEY COMPANY,
Defendant, Case No. 230100940, was removed from the Philadelphia
County Court of Common Pleas, Civil Division, Pennsylvania, to the
United States District Court for the Eastern District of
Pennsylvania on January 17, 2023.

The Clerk of Court for the Eastern District of Pennsylvania
assigned Case No. 2:23-cv-00188 to the proceeding.

The Plaintiffs allege that the Defendant engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
its Hershey's Special Dark Mildly Sweet, Lily's Extra Dark 70%
Cocoa, and Lily's Extremely Dark 85% Cocoa products that
purportedly contain cadmium and lead in excessive amounts.

The Hershey Company is a manufacturer of chocolate products, with
its principal place of business in Hershey, Pennsylvania.[BN]

The Defendant is represented by:

          Barbara L. Mullin, Esq.
          Steven A. Zalesin, Esq.
          Jonah M. Knobler, Esq.
          PATTERSON BELKNAP WEBB & TYLER LLP
          1133 Avenue of the Americas
          New York, NY 10036-6710
          Telephone: (212) 336-2000
          E-mail: bmullin@pbwt.com
                  sazalesin@pbwt.com
                  jknobler@pbwt.com

HYUNDAI MOTOR: Faces Class Action Over Faulty Brake Technology
--------------------------------------------------------------
Joshua Dowling at drive.com.au reports that close to 200,000
Hyundai and Kia cars sold in Australia from 2014 to 2020 are the
focus of a Class Action over faulty brake technology, with lawyers
seeking compensation for owners - whether or not their car has
burst into flames.

The legal action - lodged in the Victorian Supreme Court - includes
approximately 136,800 Hyundai cars sold in Australia from 2014 to
2020.

A further 56,000 Kia cars with the same fault and fire risk could
also be caught up in the same case, for a total of approximately
193,000 vehicles.

The cars at the centre of the legal action have previously been
recalled for the fire risk - caused by a fault with the anti-lock
braking system - however some owners claim they never received the
safety bulletin as they bought the vehicle second-hand.

One Hyundai owner involved in the legal action - led by Maurice
Blackburn Lawyers - told Nine News her car went up in flames on
Christmas Day, having just picked up her elderly grandparents. A
passerby helped them out of the burning vehicle.

Another Hyundai owner had her car suddenly catch fire while it was
in the garage at home, parked below her bedroom.

"It could have been a fatal disaster. We were very lucky to have
noticed smoke coming into the house from the garage. Had we not
caught it early, it's almost certain the whole house would have
gone up," Ms Johnston said in a media statement issued by the law
firm.

Owners of any of the affected vehicles are eligible to sign up to
the Class Action at no cost - win or lose - even if their car has
not caught fire and has not had a major brake failure.

The legal action involves the following cars:

Hyundai Tucson (2014 to 2020)
Hyundai Santa Fe (2015 to 2018)
Hyundai ix35 (2014 to 2015)
Hyundai Genesis sedan (2014 to 2017)
Hyundai Genesis G70 and G80 sedans (2018)
The legal action could be extended to:

Kia Sportage (2016 to 2019)
Kia Stinger (2016 to 2019)

"They're the cars that families buy and would expect that they
might be able to stick them in the garage without the risk of them
spontaneously bursting into flames," said Andrew Watson, Maurice
Blackburn's national head of Class Actions.

The law firm - which is leading the Class Action against Hyundai -
says it is preparing a similar case against Hyundai's sister brand
Kia, which uses the same technology.

"This is a serious defect impacting hundreds of thousands of
vehicles with potentially catastrophic consequences for vehicle
owners and bystanders," Mr Watson said in a media statement.

"Consumers expect that the vehicles they purchase will be safe to
drive, safe to park in their garage, and free from defects which
could result in the loss of life.

"Hyundai and Kia have failed to meet those expectations and must be
held to account for putting unsafe vehicles on the road."

Mr Watson said the class actions will allege Hyundai and Kia
"failed to comply with the guarantee of acceptable quality under
the Australian Consumer Law, and engaged in misleading and
deceptive conduct."

As previously reported, the fault with the anti-lock brake system
was the subject of a recall due to a fire risk; an electronic
control circuit board can short circuit when exposed to moisture.

This creates a risk of an engine compartment fire, even when the
car is parked and the engine is not running.

After a number of incidents here and overseas, vehicle owners were
advised to park their vehicles outside in an open space and away
from houses, other buildings or materials which may be flammable,
such as a garage or carport.

A statement from Hyundai Australia said: "Hyundai Motor Company
Australia prioritises the safety of our customers. We take the
safety and reliability of our vehicles seriously. We have always
and will continue to stand by our products by providing our
customers with the support they need. We are disappointed about the
class action but will consider the allegations carefully before
commenting further."

A statement from Kia Australia said: "We are aware of a proposed
class action by Maurice Blackburn Lawyers. However, we have not
received any official notification on the matter and as such we
will not be making any further comment at this time."[GN]

ICSO INDUSTRIES: Court Denies Bid to Reconsider in Best v. James
----------------------------------------------------------------
Judge Rebecca Grady Jennings of the U.S. District Court for the
Western District of Kentucky, Louisville Division, denies the
Plaintiffs' motion to reconsider in the lawsuit entitled NATHAN
BEST, ET AL., Plaintiff v. STEPHEN C. JAMES, ET AL., Defendants,
Case No. 3:20-cv-299-RGJ (W.D. Ky).

Plaintiffs Nathan Best, Matthew Chmielewski and Jay Hicks move for
reconsideration of the Court's Order on motion to dismiss.
Defendants ICSO Industries, Inc., James Kirchdorfer and Mark
Kirchdorfer responded, and the Plaintiffs replied. The Defendants
moved for leave to file a surreply to the Plaintiffs' motion for
reconsideration with their surreply attached.

The individual and a proposed class (the Court has not yet
certified a class) of similarly situated Plaintiffs participated in
ISCO's Employee Stock Ownership Plan ("ESOP"). In April 2020, the
Plaintiffs filed their Class Action Complaint under the Employee
Retirement Income Security Act ("ERISA") against the Defendants and
Defendant Stephen James. They allege two claims, one of breach of
fiduciary duty and one of engaging in a prohibited transaction. The
Court granted the motion to dismiss in favor of arbitration, and
the Plaintiffs now move the Court to reconsider its Order.

The Court first addresses the Defendants' motion for surreply, as
the arguments in it are relevant to the motion to reconsider. The
Plaintiffs did not respond to the motion for surreply.

The Defendants argue their Sur-Reply addresses inaccuracies and new
arguments in the Plaintiffs' reply. It raises four specific
arguments: 1) that the Plaintiffs misstated that federal law is
settled regarding arbitration agreements prohibiting plan-wide
relief; 2) that the Plaintiffs misstated the law by arguing class
waiver is unenforceable because ERISA Section 502(a)(2) mandates
proceeding on a class basis; 3) the Plaintiffs claimed for the
first time in reply that Hawkins v. Cintas Corp., 32 F.4th 625 (6th
Cir. 2022), involved a Section 502(a)(3) claim; and 4) the
Plaintiffs recharacterized their manifest injustice argument in
reply.

By not replying, Judge Jennings holds that the Plaintiffs concede
these arguments. The Court finds the Defendants' arguments raised
in sur-reply worthy of consideration. The Defendants filed the
Motion for Sur-reply only three days after the filing of the
Plaintiffs' Reply, so it did not create a delay for the Court or
the Plaintiffs. The Court finds the Sur-Reply should be permitted
here and, accordingly, will grant the Motion for Sur-Reply.

The Defendants moved to dismiss the Plaintiffs' class action
Complaint and compel arbitration. The Court granted this motion,
finding the Plaintiffs signed valid individual arbitration
agreements in the form of employee agreements.

The Plaintiffs move for reconsideration of this Order arguing it
was a clear error of law, because their claims are not individual
ones and instead belong to the plan, and that the Court's analysis
already rejected application of the ESOP Arbitration Agreement. The
Plaintiffs also argue for reconsideration based on manifest
injustice, because their claims cannot proceed in class arbitration
and because proceeding against Defendant James alone will limit
their judgment.

The Court first notes that the Plaintiffs' earlier briefing in
response to the Defendants' motion to dismiss did not clearly argue
they were bringing their claims on behalf of the plan as a whole or
that the employee arbitration agreements would not apply on that
basis. Nor did the Plaintiffs fully analyze this argument in their
supplemental authority notice, which was one of 15 supplemental
notice and response documents considered by the Court. Rather, the
Plaintiffs appeared to be seeking individual monetary relief, as
available under Section 502(a)(3) of the ERISA.

While the Plaintiffs now argue that Hawkins was a change in law,
the Plaintiffs' supplemental notice did not previously explicitly
note that to the Court--they merely noted that the Sixth Circuit
had affirmed a district court's denial of a motion to compel
arbitration of plan claims. However, because the Complaint asserts
a claim under ERISA Section 502(a)(2), they assert a claim on
behalf of the plan, they previously cited Hawkins to the Court in
their notice, and the Court did not earlier analyze this argument,
the Court considers the effect of Hawkins on its order.

The Court's order on motion to dismiss held that the individual
Plaintiffs' employee agreements, containing arbitration agreements,
bound their claims--under ERISA Section 502(a)(3)--to arbitration.
As more fully analyzed in the Court's earlier order, the Plaintiffs
argued these arbitration agreements do not apply because their
claims are unrelated to their employment and fall outside the scope
of their employment. The Court found the claims within the scope of
the agreements because two of the employee agreements contained
arbitration clauses explicitly, including ERISA, and the third
referenced any employment dispute.

In Hawkins, the Sixth Circuit recently held that individual
employee agreements cannot bind claims brought on behalf of a plan
and that the weight of authority and the nature of Section
502(a)(2) claims suggest that these claims belong to the plan, not
to individual plaintiffs. As applied to the Plaintiffs' claims
brought on behalf of the plan, under Hawkins the individual
employee agreements cannot bind the plan to arbitration, Judge
Jennings opines. Thus, the employee agreements do not apply to the
Plaintiffs' claims brought under Section 502(a)(2), and they are
not bound to arbitration under these agreements or the Court's
earlier analysis.

However, Hawkins did not discuss Section 502(a)(3) in its order,
and this Court's dismissal of such individual Section 502(a)(3)
claims in its earlier Order remains appropriate, so the Court will
not further analyze the argument the Plaintiffs make on this point
in Reply.

The Plaintiffs argued in the motion to dismiss that they did not
receive notice of or consent to the arbitration policy, and also
argued that it lacked consideration. The Court's previous Order
considered whether the ESOP's Arbitration "Amendment Number Two"
("ESOP Amended Agreement") containing an ERISA Arbitration and
Class Action Waiver applied to the Plaintiffs. Because the ESOP
Amended Agreement had been signed by ICSO representatives, rather
than the individual Plaintiffs, the Court was not persuaded
regarding consent and validity of this agreement as to the
individual Plaintiffs. But this analysis is different when
considering the validity of the agreement as to the plan's consent
to arbitrate. The Court begins anew with its analysis of the
validity of this Agreement as applied to the Section 502(a)(2)
claims.

As the Defendants note, in Hawkins, the absence of a sufficient
manifestation of the plan's consent to arbitrate these claims
compelled the Court to find the claims un-arbitrable. The Court in
Hawkins did not elaborate on what a sufficient manifestation of the
plan's consent would be, but noted that the defendant's
position--as here--was hinting that it should be able to
unilaterally decide it wants to arbitrate claims against itself.

Judge Jennings notes that while the Sixth Circuit has not decided
in Hawkins whether an amended arbitration provision in a plan
document, as here, could bind a plan to arbitration, its comment
suggests that the amendment "might accomplish" this goal. And if
neither individual agreement nor plan consent can bind the plan,
this Court seems to be left with an illogical result where Section
502(a)(2) claims would never be bound to arbitration, unless,
perhaps, the initial plan documents included an arbitration
agreement.

And while the Sixth Circuit has not explicitly held these claims
are arbitrable, every other circuit to consider the issue has held
that ERISA claims are generally arbitrable, Judge Jennings opines,
citing Smith v. Bd. of Directors of Triad Mfg., Inc., 13 F.4th 613,
620 (7th Cir. 2021) (collecting cases from the Second, Third,
Fifth, Eighth, Ninth, and Tenth Circuits).

With the Sixth Circuit's indication that an amended plan document
included an arbitration provision would bind the plan to
arbitration, and absent further direction, the Court finds the ESOP
Amended Agreement sufficient to bind the plan to arbitration. And
because the ESOP representative could, thus, bind the plan and has
submitted a declaration on notice, the Court does not further
consider the question of the Plaintiffs' individual consent or
consideration. The Plaintiffs' ERISA claims are within the scope of
the ESOP Amended Agreement, as it explicitly includes an ERISA
Arbitration and Class Action Waiver. Under this agreement, the
Plaintiffs must arbitrate their claims, Judge Jennings holds.

The Court also considers whether the claims must proceed
individually or through class action.

The Court says it has no specific guidance from the Supreme Court
on whether Section 502(a)(2) claims must be arbitrated through
class proceedings. But regardless of the parties' policy arguments,
the parties agreed to class action waiver, and class action waivers
are enforceable in the arbitration context, Judge Jennings holds.
Thus, the Plaintiffs may not arbitrate their claims against the
Defendants on a class basis, and the Plaintiffs' Motion to
Reconsider is denied.

The Court sua sponte considers its jurisdiction over the remaining
Defendant, as is its duty. Defendant James was the ESOP trustee.

Having found that the ESOP Amended Agreement is valid and that all
the Plaintiffs' ERISA claims are subject to individual arbitration,
the Court fails to see why the claims against James should not also
be sent individual arbitration. Judge Jennings holds that the
Plaintiffs have 30 days to explain to the Court why these claims
are not within the scope of this agreement and should not be sent
to arbitration. Failing such an explanation, Judge Jennings says
the Plaintiff's complaint will be dismissed in favor of
arbitration.

For the reasons set forth, and the Court being otherwise
sufficiently advised, Judge Jennings rules that:

   (1) the Plaintiffs' Motion to Reconsider is denied;

   (2) the Defendants' Motion for Leave to File a Surreply is
       granted;

   (3) the Plaintiffs have 30 days from the date of this order to
       state why the claims against Defendant James should not be
       dismissed in favor of arbitration.

A full-text copy of the Court's Memorandum Opinion and Order dated
Jan. 9, 2023, is available at https://tinyurl.com/28f973pb from
Leagle.com.


IKEA US: 2nd Circuit Erred in Certifying ERISA Class Action
-----------------------------------------------------------
Tristan Duncan, Esq., Mitchell Engel, Esq., Michael Mallow, Esq.,
and Amir Nassihi, Esq., of Shook, Hardy & Bacon L.L.P., in an
article for JDSupra, discussed Class Action Decisions published in
December 2022.

Affirmative Defenses. The Second Circuit held the district court
erred in certifying a class alleging ERISA violations because it
did not consider Defendant's affirmative defenses in its
predominance analysis.

Ascertainability. The Eastern District of Pennsylvania denied
certification of a class alleging IKEA was negligent and deceptive
in how it planned and implemented a recall. The court found the
class failed the ascertainability requirement because it proposed
to identify class members through self-identification after email
notification, but email notification was not sufficient because
they could have been notified of the recall in other ways.

Securities. The Northern District of California granted preliminary
approval to a $25,000,000 settlement in which the class alleged
Lyft violated securities laws by failing to disclose in its Initial
Public Offering Statement: (1) the potential for reputational
damage and legal liability due to sexual assault allegations
against drivers; (2) that Lyft's market share was shrinking because
of a price war with a competitor; and (3) safety issues with Lyft's
bike sharing program. [GN]

ILLINOIS: Faces Class Action Over Improper Care in Juvenile Jails
-----------------------------------------------------------------
newschannel20.com reports that a class action lawsuit has now been
filed against the Department of Children and Family Services.

Cook County Public Guardians are accusing the department of housing
children in their care in juvenile jails long after a court has
ordered them to be released, causing harm to their mental health
and well-being.

Attorneys say keeping kids in these facilities not only hurt them
but costs taxpayer more money.

"The Department of Children and Family Services works as quickly as
possible to place youth in appropriate and safe settings, said Bill
McCaffery, director of Communications at DCFS. "Of course, we can
only place youth where we have availability that meets their needs,
which is why the department is also working to expand the capacity
that was hollowed out under previous administrations. Thanks to
this work, in recent years we have made progress in reducing the
number of youth who remain in the justice system past the date they
are allowed to be released and we are deeply committed to continued
progress. We cannot comment further due to pending litigation."

The Lawsuit calls for all children harmed by these practices by
DCFS to be compensated and for the department to invest in beds and
housing that would give children the safe environments that they
need.[GN]

INDEPENDENCE, MO: Shook Suit Removed to W.D. Mo.
------------------------------------------------
The case styled DONNIE SHOOK, individually and on behalf of others
similarly situated, Plaintiff v. THE CITY OF INDEPENDENCE,
MISSOURI, Defendant, Case No. 2216-CV28229, was removed from the
Circuit Court of Jackson County, Missouri to the United States
District Court for the Western District of Missouri on January 13,
2023.

The Clerk of Court for the Western District of Missouri assigned
Case No. 4:23-cv-00028-DGK to the proceeding.

The Plaintiff's collective action petition asserts a claim that
Defendant violated the Missouri Wage and Hour Law and federal Fair
Labor Standards Act by failing to pay Plaintiff for overtime hours
at a rate of at least one and one-half times Plaintiff's regular
rate.

Independence is the fifth-largest city in Missouri and the county
seat of Jackson County.[BN]

The Defendant is represented by:

          Sara E. Welch, Esq.
          Erin M. Naeger, Esq.
          STINSON LLP  
          1201 Walnut Street, Suite 2900
          Kansas City, MO 64106-2150
          Telephone: (816) 842-8600
          Facsimile: (816) 691-3495
          E-mail: sara.welch@stinson.com
                  erin.naeger@stinson.com

INDONESIA: Suit Over Death of Children Due to Cough Syrup Heared
----------------------------------------------------------------
Yuddy Cahya Budiman, Stanley Widianto and Ananda Teresia at Reuters
report that families of Indonesian children who died because of
tainted cough syrup demanded restitution as an Indonesian court on
Tuesday started hearing their class-action lawsuit against
government agencies and pharmaceutical firms.

About 200 children have died of acute kidney injury in Indonesia
since last year and authorities have said two ingredients, ethylene
glycol and diethyelene glycol, found in some syrup-based
paracetamol medications are linked to the illness.

The two ingredients are used in antifreeze, brake fluids and other
industrial applications, but also as a cheaper alternative in some
pharmaceutical products to glycerine, a solvent or thickening agent
in many cough syrups. They can be toxic and can lead to acute
kidney injury.

Twenty-five families are suing the health and finance ministries,
the drugs regulator and at least eight drug companies. Awan
Puryadi, the families' lawyer, told Reuters they each wanted
compensation of up to 3.4 billion rupiah ($224,570.67).

Solihah, 36, who was at the court in the Indonesian capital
Jakarta, said her 3-year-old daughter was diagnosed with the acute
kidney injury after consuming a syrup medication and died a few
days later. She said she wanted the government to be held
accountable.

"If my daughter had not consumed the drug, maybe she would still be
here," she said, her voice breaking with emotion. "I hope all
parties involved are held responsible for the conditions of the
children who died and are still sick."

Representatives of the finance ministry and five pharmaceutical
companies named in the suit did not respond to requests for
comment. Another three companies could not be reached.

The country's drugs regulator, BPOM, said it would respect the
ongoing legal process, while the health ministry declined to
comment.

Authorities have banned several cough syrups and mounted legal
action against several pharmaceutical companies whose products
allegedly contained the dangerous ingredients.[GN]

JLT RISK: NSW Supreme Court Dismisses Mutual Scheme Class Action
----------------------------------------------------------------
InsuranceNEWS.com.au reports that the NSW Supreme Court has
dismissed a class action launched against JLT by local governments
that became dissatisfied with a mutual scheme, finding the company
was not acting as a broker for individual councils in conflict with
its role as an adviser for the pool.

Richmond Valley Council (RVC) and others alleged JLT breached its
duties by only recommending property and liability cover provided
by the Statewide mutual scheme each year and failing to advise on
lower premiums available in the open market.

Justice Kate Williams found Statewide-adviser JLT was fulfilling
its role in line with a pool Deed, and it did not provide broking
services to Richmond Valley Council in relation to the property and
liability cover.

"The terms of the insurance declarations and renewal reports made
it clear that JLT was negotiating and placing the property and
liability lines of cover on behalf of Statewide members
collectively and not on behalf of RVC individually," Justice
Williams says in a decision first reported by insuranceNEWS.com.au
in a Breaking News last month.

No allegation was made that JLT didn't provide advice to the mutual
scheme board about pooled risk placements, or that it did so in a
manner contrary to its obligations, Justice Williams says.

Separately, JLT acted as a broker for Richmond Valley from time to
time on non-Statewide covers, while as part of the Statewide scheme
individual councils were asked to make choices such as deductible
amounts and sub-limits.

Scheme members could retire from the pool and seek other options
for that cover after a notice period, which from 2013 was increased
from three to 12 months.

Richmond Valley Council argued that JLT had "held itself out as a
broker" to group members in documents and communications, while
general managers were asked in court about how they would have
responded if they'd been advised about cheaper premiums available
compared to the Statewide contributions.

But Justice Williams describes the hypothetical scenarios as
unrealistic because by the time renewal paperwork was presented it
was too late for councils to leave the pool for the coming year due
to the notice periods. The judgment also says Statewide
documentation language was different compared to non-Statewide
covers, and they needed to be looked at in context.

The judgment found JLT had not breached fiduciary duties to
individual councils and there was no conflict of interest, given it
wasn't providing broking services or making a recommendation to
them on the pooled cover.

"RVC had made the choice to take itself out of the market as an
individual insured and to have its property and liability risks
pooled with other group members on the express basis that JLT would
place insurance for those pooled risks on the instructions of the
board," the decision says.

"RVC was aware of the terms of the Deed that it had acceded to when
it made that choice and by which it remained bound unless and until
it gave the requisite period of notice."

Before the 2014/2015 renewals, Willis Australia had contacted the
Northern Rivers Regional Organisation of Councils suggesting it
could assist members, and a benchmarking process with another group
of councils "showed considerable savings on offer by moving to a
regional insurance program", the court heard.

In February 2015 Aon Risk Solutions approached Richmond Valley
Council, flagging "significant potential savings", and later
providing indicative prices.

Richmond Valley Council gave notice of its retirement from the
Statewide mutual in June 2016, ahead of joining with nine other
councils in August that year to form an insurance procurement group
(IPG).

JLT, Aon, Marsh and Willis participated in a three-year IPG tender,
with Aon awarded the role in February 2017.

Richmond Valley argued that the aggregate 40% difference between
contributions it paid to the mutual property liability funds in
2016-2017 and JLT indicative pricing in an IPG tender response was
"strong evidence that RVC had overpaid for its insurance that year,
and that JLT had failed to obtain the lowest price it reasonably
could have from Statewide".

The judgment says the IPG tender was conducted retrospectively
based on fictitious data for anonymised councils, was "plainly not
designed" to elicit any binding insurance quote and other
differences included that flooding wasn't covered.

"It is unremarkable that JLT sought to make its indicative pricing
competitive by approaching the pricing in a different manner from
that which applied to setting Statewide contributions," Justice
Williams says.

In 2019, Richmond Valley Council tendered for insurance and broking
services for the period from June 30 2020. From July that year it
ceased to use Aon as its broker and became a member of the
CivicRisk mutual, the judgment says.

The court action against JLT, now part of Marsh McLennan, related
to the period from January 2009 to December 2018. [GN]

JOHNSONVILLE LLC: Faces Class Action Over Beef Sausage Casings
--------------------------------------------------------------
Mary Haydock, writing for Cook County Record, reports that a new
class action lawsuit over alleged mislabeling seeks to grill
Johnsonville, one of the country's leading producers of sausages,
over whether its beef sausage casings on its beer brats really mean
the company can claim the sausages are "all pork."

Erin Edwards, on behalf of herself and others, filed a consumer
class action lawsuit Jan. 3 in Cook County Circuit Court against
Johnsonville LLC, which is based in Sheboygan Falls, Wisconsin.
Edwards is claiming alleged misbranding violation of the Federal
Food and Cosmetic Act (F-FDCA), as well as alleged violations under
various state consumer fraud laws.

Plaintiffs are accusing Johnsonville of selling beer brats as
containing "100% premium pork," even though the casings come from
cows. Edwards asserts that Johnsonville also intentionally makes
false claims, omissions, and statements meant to mislead
consumers.

The F-FDCA states that "a food shall be considered 'misbranded' if
its labeling is false or misleading in any (way)." Since it's
widely assumed in many communities that sausage casings will be the
same animal as the meat they contain, federal regulations were put
forth by the USDA to protect consumers, the complaint said.

The USDA, concerned that such assumptions could be a problem for
certain populations, now requires sausage manufacturers to clearly
"identify the type of meat or poultry from which the casings are
derived, (and) if the casings are from a different type of meat or
poultry than the encased meat or poultry."

According to court documents, Edwards felt that a reasonable person
would understand that if the label states the product is 100% pork,
it means the brats are filled only with pork.

Edwards claims, if she and others had known the truth, that the
brats were encased in beef collagen casings, not pork, they would
not have purchased the product.

Plaintiffs are demanding a trial by jury, settlement in the form of
any monetary gains from the fraudulent sale of the product be paid
to all members, as well as legal fees and court costs.

Plaintiff is represented by Thomas A. Zimmerman, Jr.,Sharon A.
Harris, Matthew C. De Re, and Jeffrey D. Blake, of the Zimmerman
Law Offices, of Chicago. [GN]

KROGER CO: Union Files Lawsuit Alleging Widespread Wage Theft
-------------------------------------------------------------
Caitlyn Frolo at wset.com reports that a group of Kroger associates
from the Mid-Atlantic region have filed a class action lawsuit in
federal court in Richmond.

The lawsuit filed alleges their employer has engaged in widespread
wage theft resulting from repeated and ongoing problems with
payroll.

The plaintiffs are Kroger employees, most of whom are members of
the United Food & Commercial Workers (UFCW) Local 400 Union, which
represents approximately 13,000 Kroger associates in Virginia, West
Virginia, Ohio, Kentucky, and Tennessee.


Through an online form, the union has received more than 1,000
reports from members describing problems ranging from missed and
incomplete paychecks to improperly deducted taxes and health care
premiums, among other issues.

The union has filed class action grievances against the company for
violations of its collective bargaining agreement, and in December,
the union filed Unfair Labor Practice charges against Kroger
through the National Labor Relations Board.

"This is wage theft, plain and simple. When you work for an
employer, you should be compensated completely and correctly for
every minute you work, and if you aren't, then your employer is
stealing from you," said UFCW Local 400 President Mark Federici.
"We have received more than 1,000 reports from Kroger employees
experiencing payroll problems, and we know for every report we
receive there are many, many others that go unreported. Despite
using every available avenue to bring these problems to Kroger's
attention, the company has refused to correct its payroll system.
This is simply unacceptable."

One plaintiff, Donald Austin, works for Kroger in Appomattox.

For more than four weeks, Austin said he was not issued a paycheck,
despite working at least 40 hours in each of those weeks. The
lawsuit says Kroger has been made aware of these issues but has
failed to correct them.

Another plaintiff, Sharon Simpson, said she worked for Kroger in
Charleston, WVa. for four weeks from August to September 2022 and
never received any pay, forcing her to resign from her position.

Lori Dalton is another plaintiff who works for Kroger in Saint
Albans. For almost two months, Dalton said her copay for spousal
insurance was deducted twice from each paycheck, resulting in the
loss of hundreds of dollars. The lawsuit says Kroger has been made
aware of these issues but has failed to correct them.

"As our case will show, Kroger has engaged in a persistent pattern
of wage theft through its failure to correct ongoing and systemic
payroll problems resulting from its new 'MyTime' software," said
Matthew Handley, whose firm Handley Farah & Anderson PLLC filed the
suit. "The company's failure to correct these problems is in clear
violation of federal and state law, and we intend to seek every
remedy available on behalf of these workers."

"What we once thought was an isolated local glitch has since
revealed itself to be a national problem," said Mr. Federici. "We
have spoken to several other UFCW local unions around the country
and they've all reported widespread and egregious payroll errors.
It is outrageous that we should have to bring a lawsuit like this
to ensure our members are paid properly and promptly."[GN]

KROGER CO: Union Members File Lawsuit Over Alleged Wage Theft
--------------------------------------------------------------
Brandon Eanes at wvnstv.com reports that according to information
from members with the United Food & Commercial Workers (UFCW) Local
400 Union, Kroger union members have filed a class action lawsuit
alleging wide ranging wage theft.

On January 19, 2023, a group of Kroger associates in the
Mid-Atlantic region filed the class action lawsuit in federal court
in Richmond, Virginia. The lawsuit is alleging their employer was
engaging in "widespread wage theft resulting from repeated and
ongoing problems with payroll".

Through a online forum, the UFCW has received more than 1,000
reports from Kroger employees, most of whom are UFCW 400 members,
describing multiple problems regarding pay. The problems allegedly
range from missed and incomplete paychecks to improperly deducted
taxes and health care premiums, among other issues.

Our union received more than 1,000 reports from members
experiencing missing or incorrect paychecks, and we believe there
are many more problems that go unreported. Our union has filed
grievances, as well as Unfair Labor Practice charges through the
National Labor Relations Board. But the company has refused to
address the crisis, so our members are taking them to court.

One plaintiff, Sharon Simpson, worked for Kroger in Charleston,
West Virginia for four weeks from August to September 2022 and
never received any pay, which forced her to resign in frustration.

String of break-ins reported in Beckley
Another plaintiff, Lori Dalton, who works for Kroger in Saint
Albans said for almost two months, Ms. Dalton's copay for spousal
insurance was deducted twice from each paycheck, resulting in the
loss of hundreds of dollars.

"This is wage theft, plain and simple. When you work for an
employer, you should be compensated completely and correctly for
every minute you work, and if you aren't, then your employer is
stealing from you. We have received more than 1,000 reports from
Kroger employees experiencing payroll problems, and we know for
every report we receive there are many, many others that go
unreported. Despite using every available avenue to bring these
problems to Kroger's attention, the company has refused to correct
its payroll system. This is simply unacceptable."

The United Food & Commercial Workers (UFCW) Local 400 Union
represents approximately 13,000 Kroger associates in Virginia, West
Virginia, Ohio, Kentucky and Tennessee.

59News has reached out to Kroger for a statement. We have not heard
back. [GN]

LAGUNITAS BREWING: Coffey Labor Suit Removed to N.D. Cal.
---------------------------------------------------------
The case styled TREVOR COFFEY, an individual, on behalf of himself
and on behalf of all persons similarly situated Plaintiffs v. THE
LAGUNITAS BREWING COMPANY, a California Corporation; and DOES 1 to
50, inclusive, Defendants, Case No. SCV-271412, was removed from
the Superior Court of the State of California for the County of
Sonoma to the United States District Court for the Northern
District of California on January 17, 2022.

The Clerk of Court for the Northern District of California assigned
Case No. 3:23-cv-00219 to the proceeding.

Plaintiff Coffey filed this class action complaint on August 9,
2022, against Lagunitas asserting 10 of causes of action: (1)
unfair competition, (2) failure to pay minimum wages; (3) failure
to pay overtime wages; (4) failure to provide required meal
periods; (5) failure to provide required rest periods; (6) failure
to reimburse employees for required business expenses; (7) failure
to provide wages when due; (8) failure to provide accurate itemized
wage statements; (9) failure to provide gratuities; and (10)
unlawful deductions.

The Lagunitas Brewing Company, founded in 1993 in Lagunitas,
California, is a subsidiary of Dutch multinational brewing company
Heineken International.[BN]

The Defendant is represented by:

          Erin N. Bass, Esq.
          DENTONS US LLP
          601 South Figueroa Street, Suite 2500
          Los Angeles, CA 90017-5704
          Telephone: (213) 623-9300  
          Facsimile: (213) 623-9924
          E-mail: erin.bass@dentons.com

               - and -

          Jessica Peterson, Esq.
          DENTONS US LLP
          1999 Harrison Street, Suite 1300
          Oakland, CA 94612
          Telephone: (415) 267-4000
          Facsimile: (415) 267-4198
          E-mail: jessica.peterson@dentons.com

LIFESCAN INC: Auburn University to Receive $5.33K Cy Pres Award
---------------------------------------------------------------
Judge Kristi K. DuBose of the U.S. District Court for the Southern
District of Alabama, Southern Division, grants the Plaintiff's
Motion to Authorize Distribution of Cy Pres Award in the lawsuit
captioned FAMILY MEDICINE PHARMACY, LLC, Plaintiff v. LIFESCAN,
INC., Defendant, Case No. 20-cv-00534-KD (S.D. Ala.).

The Claims Administrator is directed to distribute the sum of
$5,330 to the Pharmacy General Scholarship Account (30012058) of
the Auburn University Foundation for Auburn University.

The Plaintiff states that the parties' Settlement Agreement
provides for issuance of funds remaining from class members'
uncashed checks to a Cy Pres recipient. In accord therewith, the
Plaintiff proposes a distribution to the Pharmacy General
Scholarship Account (30012058) of the Auburn University Foundation
for Auburn University in the amount of $5,330. The Plaintiff
reports that Defendant Lifescan, Inc., does not oppose this
recipient.

Pursuant to the Class Action Settlement and Release, any Claim
Settlement Payments remaining solely as a result of uncashed checks
will be sent to a Cy Pres the parties agree on subject to Court
approval.

The parties propose a distribution to the pharmacy scholarship
account of a foundation for a well-known university with a college
of pharmacy. The Plaintiff/Class Representative is a pharmacy. The
Plaintiff alleged that the Defendant sent unsolicited facsimile
advertisements for its brand of glucose monitoring system to the
pharmacy.

The class members were defined as recipients of the facsimiles.
Therefore, the Cy Pres recipient falls within the scope of a
non-profit organization whose work indirectly benefits the class
members. Accordingly, the recipient is approved.

A full-text copy of the Court's Order dated Jan. 9, 2023, is
available at https://tinyurl.com/2s3236kw from Leagle.com.


ME&I CONSTRUCTION: Stock Labor Suit Removed to W.D. Pa.
-------------------------------------------------------
The case styled WALTER STOCK, III, on behalf of himself and others
similarly situated, Plaintiff v. ME&I CONSTRUCTION SERVICES USA,
INC., Defendant, Case No. 10173-2022, was removed from the Court of
Common Pleas of Beaver County, Pennsylvania, to the United States
District Court for the Western District of Pennsylvania on January
13, 2023.

The Clerk of Court for the Western District of Pennsylvania
assigned Case No. 2:23-cv-00064-MRH to the proceeding.

The complaint asserts a class action claim on behalf of plaintiff
and all other hourly employees of Defendant employed at the Monaca,
Pennsylvania worksite at issue during the three years preceding the
filing of the suit.

ME&I Construction Services USA, Inc. is a full-service maintenance
and construction services company.[BN]

The Defendant is represented by:

          Lauren E. Marzullo,
          MORGAN, LEWIS & BOCKIUS LLP
          One Oxford Centre, 32nd Floor
          Pittsburgh, PA 15219
          Telephone: (412) 560-3300
          E-mail: lauren.marzullo@morganlewis.com

               - and -

          Michael J. Puma, Esq.
          MORGAN, LEWIS & BOCKIUS LLP
          1701 Market Street
          Philadelphia, PA 19103-2921
          Telephone: (215) 963-5000
          E-mail: michael.puma@morganlewis.com

MICROSOFT CORP: Jones Wins Bid to Remand 2 Counts to Circuit Court
------------------------------------------------------------------
In the lawsuit titled NATASHA R. JONES, Plaintiff v. MICROSOFT
CORPORATION, Defendant, Case No. 22-cv-3437 (N.D. Ill.), Judge
Jorge Alonso of the U.S. District Court for the Northern District
of Illinois, Eastern Division, issued a Memorandum Opinion and
Order:

   (1) grants the Plaintiff's motion to remand, and remands
       Counts I and III back to the Circuit Court of Cook County;
       and

   (b) grants Microsoft's motion to dismiss counts II and IV of
       Jones's complaint under Rule 12(b)(6) of the Federal Rules
       of Civil Procedure.

Ms. Jones filed a complaint alleging that Defendant Microsoft Corp.
violated the Illinois Biometric Information Privacy Act ("BIPA").
She initially filed her lawsuit in the Circuit Court of Cook
County, Illinois, but Microsoft removed it based on diversity
jurisdiction and the Class Action Fairness Act, 28 U.S.C. Section
1332(d).

Microsoft provides a service called Azure, a cloud computing and
storage platform. Cloud computing services, like Azure, allow users
to store and access data through the internet rather than storing
it locally.

Ms. Jones began working for Chicago Marriott Suites in October of
2015 and worked there for six years. During her employment, Chicago
Marriot required its employees to register and scan their
fingerprint for timekeeping purposes each time they clocked-in and
out at work. To accomplish this, Chicago Marriot hired Paychex, a
prominent biometric timekeeping provider in Illinois, to collect
and store its employee's biometric data. Paychex hosts a variety of
cloud-based apps supported by and stored on Microsoft's Azure
platform.

The Plaintiff alleges that even though Paychex uploaded her and
others' biometric information onto the Azure platform, Microsoft
never provided her with, nor did she ever sign, a release
acknowledging that it could collect, store, use, or disseminate her
biometric data. Nor did Microsoft publish any policies addressing
retention or destruction schedules for this data.

Ms. Jones alleges violation of four BIPA provisions: 740 ILCS
14/15(a), (b), (c), and (d). After Microsoft removed this case to
federal court, Jones filed a motion to remand her Section 15(a) and
(c) claims. Microsoft stipulated to the remand of those claims but
seeks to dismiss the other claims.

In her Motion to Remand, Jones argues she lacks Article III
standing to pursue her Section 15(a) or Section 15(c) BIPA claims
in federal court. The party invoking federal jurisdiction, which in
this case is Microsoft as the removing party, bears the burden of
establishing Article III standing.

Microsoft, rather than respond to Jones's substantive arguments,
stipulates to severance and remand of the Section 15(a) and (c)
claims. The Court agrees with the parties that Jones's allegations
do not satisfy the requirements of the standing doctrine for those
claims, citing Bryant v. Compass Group, USA, Inc., 958 F.3d 617,
626 (7th Cir. 2020), Thornley v. Clearview AI, Inc., 984. F.3d
1241, 1247 (7th Cir. 2021), and, in the absence of any argument to
the contrary, the Court grants the motion to remand. The Court
severs counts I and III of the complaint and remands those counts
to the Circuit Court of Cook County.

In its Motion to Dismiss, Microsoft argues that the Court should
dismiss Jones's Section 15(b) claim because she does not allege
that it took an "active step" to collect or obtain her biometric
data and that, in any event, it had no practical way to obtain her
consent because it did not have a direct relationship with her.
Jones responds that BIPA contains no "active step" requirement, nor
must a private entity have a direct relationship with the
individual under the statute.

The Court begins its analysis by noting that the Illinois
legislature used the term "possession" in certain BIPA sections but
not in Section 15(b). Thus, Section 15(b) does not penalize merely
possessing biometric identifiers or information, unlike other BIPA
sections. The Court is persuaded of this principle both by the
statute's plain language, as well as the fact that many other
judges, including those within this district, have reached the same
conclusion.

Having determined that Section 15(b) requires something beyond
possession, Judge Alonso says the inquiry turns to what that is.
Section 15(b) states that no private entity "may collect, capture,
purchase, receive through trade, or otherwise obtain a person's or
a customer's biometric identifier or biometric information" absent
consent. Under a commonsense reading, Judge Alonso explains that
this means that the private entity must undertake some effort to
collect or obtain biometric identifiers or information. Courts
sometimes refer to this as an "active step" requirement. Although
BIPA does not say the words "active step," Judge Alonso points out
that this concept simply describes the unifying characteristic
among the verbs in the statute.

Ms. Jones argues that the Court should reject the "active step"
idea and cites to Heard v. Becton, Dickinson & Co., 524 F.Supp.3d
831 (N.D. Ill. 2021) ("Heard II"), Figueroa v. Kronos, Inc., 454
F.Supp.3d 772 (N.D. Ill. 2020), and Rogers v. BNSF Railway Co.,
19-cv-3083, 2022 WL 4465737 (N.D. Ill. Sept. 26, 2022). But these
cases do not support her position, Judge Alonso finds.

But the Court's analysis does not end here because Jones also
argues, in the alternative, that even if Section 15(b) requires an
active step, Microsoft's conduct satisfies that requirement. She
argues that Microsoft "received through trade" and/or "otherwise
obtained" her biometric identifiers and information.

The Court disagrees. Judge Alonso explains that the complaint makes
clear that Paychex provided the biometric timekeeping services to
Jones's employer; Paychex registered and scanned Jones's
fingerprint; and Paychex utilized and sent the data to Microsoft's
Azure platform.

To be sure, Microsoft contracted with Paychex to provide access to
its cloud computing storage platform. But this act, Judge Alonso
opines, unlike like those in the cases cited by the parties, does
not constitute an active step or affirmative act on Microsoft's
part to get, acquire, or obtain Jones's biometric data.

Microsoft's situation is different, Judge Alonso notes. It was
merely a vendor to the third-party that provided the biometric
timekeeping technology and services to Jones's employer. Although
several courts have extended BIPA to apply to third-party providers
that supply biometric collection technology and services, no case
has extended BIPA to vendors for such third-party providers, Judge
Alonso explains.

Microsoft stands a step removed from those companies providing
biometric collection software and hardware, Judge Alonso says.
Instead, Microsoft provided Paychex with one component (storage)
that it used as part of its system for collecting and storing
biometric data. But the allegations make clear that Paychex put
these various pieces together to create the system necessary to
collect and store Jones's biometric data. Nor does the Court see
how the transaction between Paychex and Microsoft demonstrates that
Microsoft received Jones's biometric data "through trade."
Microsoft received money in exchange for access to its product, not
biometric data.

Ms. Jones further argues that Microsoft made the requisite active
step because to possess her biometric information it necessarily
had to obtain it first. This logic seems circular, Judge Alonso
finds. And in any event, the allegations explain how Microsoft came
to possess Jones's biometric data without collecting or obtaining
it. More specifically, Paychex sent the data to Microsoft's cloud
storage platform. As a result, because Microsoft did not obtain or
receive Jones's biometric data through trade, the Court dismisses
Count II.

The Court also dismisses Jones's Section 15(d) claim. All her
allegations regarding disclosure, redisclosure, or dissemination
parrot BIPA's language, Judge Alonso says. As alleged in the
complaint, after the Plaintiff's and other Class members' biometric
identifiers were allegedly obtained by the Defendant through its
clients' platforms, the Defendant disclosed or otherwise
disseminated their biometrics. The Defendant never obtained the
Plaintiff's or other Class members' consent to disclose or
disseminate their biometrics. Judge Alonso points out that without
more factual support, this claim must fail.

Ms. Jones argues that her allegations mirror those in Heard II and
Figueroa, which survived the initial pleading stage. But these
cases are distinguishable, Judge Alonso holds. In Heard II, the
plaintiff affirmatively alleged that the defendant disclosed the
biometric information it possessed to third-party data centers.
Likewise, in Figueroa, the plaintiff alleged that the defendant
disseminated her biometric data to other firms that hosted the
information in their data centers.

Here, however, Jones makes no such allegations, Judge Alonso says.
Unlike Heard II and Figueroa, Jones does not allege that Microsoft
disseminated her biometric data to any third-party data centers or
any tangible third parties whatsoever. This claim, therefore,
fails.

For these reasons, the Court grants Microsoft's motion to dismiss.
The Court grants Jones' motion to remand and remands Counts I and
III to the Circuit Court of Cook County. Civil case terminated.

A full-text copy of the Court's Memorandum Opinion and Order dated
Jan. 9, 2023, is available at https://tinyurl.com/5n98ptsa from
Leagle.com.


NEW YORK CITY: Fulton's Bid for Production of Info Granted in Part
------------------------------------------------------------------
Magistrate Judge Marcia M. Henry of the U.S. District Court for the
Eastern District of New York grants in part and denies in part the
Plaintiffs' motion to compel the production of certain information
and records in the lawsuit styled KATRINA FULTON and DARNELL
WALCOTT, on behalf of themselves and all persons similarly
situated, Plaintiffs v. CITY OF NEW YORK and NEW YORK CITY
DEPARTMENT OF CORRECTION, Defendants, Case No. 20-CV-144 (WFK)(MMH)
(E.D.N.Y.).

Plaintiffs Fulton and Walcott brought the putative class action
against Defendants City of New York and the New York City
Department of Correction ("DOC"), alleging interference and
retaliation under the Family and Medical Leave Act, 29 U.S.C.
Sections 2601, et seq. ("FMLA"); disability discrimination based on
disparate treatment and disparate impact under federal, state, and
city law; and military status discrimination under city law.

The Plaintiffs seek to compel the production of certain information
and records regarding DOC officers, who have been designated
"chronic absent," under DOC's Absence Control Policy and/or Sick
Leave Policy, served in the military, and/or sought reasonable
accommodations. The Defendants oppose the motion in part. The
parties subsequently narrowed the disputed issues in a joint
supplemental brief.

As alleged in the operative complaint, the Plaintiffs are
Corrections Officers employed by the Defendants. The Defendants
maintain the Policies applicable to all DOC uniformed members,
including the Plaintiffs. Under the Absence Control Policy, an
officer, who reports sick on twelve or more days within a
twelve-month period is classified as "chronic absent." While an
officer is designated as "chronic absent," they lose specific
privileges and benefits, including promotions, transfers, and
access to voluntary overtime, and may be subject to termination.

The Sick Leave Policy mandates that officers designated as "chronic
absent" or who have reported sick more than eight days within a
calendar year are restricted from leaving their homes outside a
four-hour daily period determined by the Defendants and enforced
through unannounced home visits.

The Plaintiffs claim these policies discriminate against DOC
officers like them, who have chronic illnesses and who have served
in the military and, therefore, are more likely to have
disabilities or injuries resulting from service. Both Plaintiffs
have been designated chronic absent under the Policies and have
faced adverse consequences, including loss of pay and sick leave.

At a status conference on Oct. 7, 2021, the parties advised the
Court of a dispute regarding the Plaintiffs' discovery requests for
personal information about putative class members, including names,
contact information, and documents relating to their disabilities.
The Court encouraged the parties to meet and confer and set a
briefing schedule for a motion to compel if they could not resolve
the dispute.

The Plaintiffs moved to compel on Oct. 28, 2021. The Defendants
opposed the motion. At a discovery conference, the parties reported
progress with negotiations to limit the discovery requests. At the
Court's request, the parties submitted a joint supplemental letter
describing the remaining issues. At a second discovery conference,
the parties presented further argument.

The Plaintiffs initially moved to compel production of names, job
titles, contact information, and records of overtime work for all
DOC uniformed officers who: (i) were "designated chronic absent;"
(ii) "served in the military;" and (iii) "suffer from
disabilities", including for the full statutory period.

The Plaintiffs also demanded copies of DOC officers' complaints of
discrimination based on the Policies. The Defendants responded to
the discovery requests by providing the number of corrections
officers, who served in the military, and the number of
individuals, who have been deemed eligible for chronic absent
status. The Defendants otherwise objected to the demands based on
privacy concerns with providing protected health information and
undue burdens of production.

In their joint submission, the Plaintiff withdrew the request for
contact information, instead seeking only names but adding requests
for dates of employment and dates of chronic absent status. The
Defendants maintained their objections to providing names and other
identifying information, but agreed to include all DOC uniformed
members in their discovery responses.

Judge Henry finds that the Plaintiffs have demonstrated that the
requested discovery is relevant to class certification. The
Plaintiffs contend that the Defendants, through the Policies,
subjected them to disparate treatment and disparate impact related
to their disabilities and military status. The Plaintiffs seek the
information to determine the members of the proposed class and
subclass.

The requested information is relevant to show which other DOC
officers with disabilities and/or military service suffered common
harms sufficient to comprise a representative class, Judge Henry
says. The overtime reports will allow the Plaintiffs to determine
whether the Policies caused DOC officers to lose voluntary
overtime, part of the damages alleged in the Second Amended
Complaint ("SAC"). The Plaintiffs bear this burden on class
certification and, therefore, is entitled to discovery to make the
appropriate determinations.

The Defendants argue that identifying and health information
regarding putative class members is subject to privacy protections
under numerous state and federal laws. However, Judge Henry opines,
it is well settled that courts are empowered to compel the
production of documents that are designated as confidential by
statute. Moreover, this case poses a unique circumstance where it
is clearly desirable that the confidential information be disclosed
given that the Plaintiffs seek this information for purposes of
vindicating the rights of the non-parties, rather than using the
information against them in some way. Finally, the Court entered a
Confidentiality Order restricting access to sensitive personal
data, which further mitigates the risk of invading privacy.

The Defendants further argue that the requested identifying
information is not relevant to class certification, and insist that
numbers of individuals in each category are sufficient. This
objection appears related primarily to the request for contact
information, which the Plaintiffs have withdrawn, Judge Henry
notes. The Defendants also seem to suggest that the Plaintiffs
cannot meet their burden for class certification with the requested
discovery.

At this stage, however, the Plaintiffs are not required to show
that they will succeed on their certification motion in order to
obtain discovery regarding putative class members, Judge Henry
points out.

Finally, the Defendants assert that the Plaintiffs' revised
requests still are not proportional to the needs of this case,
especially in light of the burden in producing the information. The
Court is sensitive to this burden, particularly for municipal
defendants. The parties' meet and confers, along with discussions
with the Court, have narrowed the discovery requests in part.

But the Court agrees with the Defendants that the Plaintiffs'
revised demands have shifted to include information not previously
requested and more vague terms, thus, increasing the burden to the
Defendants.

Accordingly, Judge Henry holds further narrowing of the requests is
warranted to balance the Plaintiffs' need for class discovery with
the burden to the Defendants. Absent further justification from the
Plaintiffs for the information, specific distinctions between job
titles is irrelevant. Further, dates of employment, which were not
included in the initial discovery requests, may precede Jan. 1,
2017, the start date of the relevant time period, rendering them
irrelevant, as well. The Plaintiff provides no clear basis for
including them.

Based on the foregoing, the Court rules as follows:

   (1) Chronic Absent List: In response to Revised Interrogatory
       No. 9, for each officer classified as "chronic absent"
       under the Absence Control Policy from Jan. 1, 2017,
       through Oct. 14, 2021 (the date of the initial
       interrogatory), the Defendants will produce the name and
       date(s) of "chronic absent" status. In lieu of producing
       names, the Defendants may redact the names and replace
       them with a means to identify the records unique to each
       person--for example, a pseudonym or identifying numbers
       and/or letters. If an individual appears on more than one
       list, the same identifier should be used across lists. The
       Defendants will also produce overtime reports for these
       officers in response to Revised Request for Production
       ("RFP") No. 88;

   (2) Alleged Disability Lists: In response to Revised
       Interrogatory No. 15, for each officer who requested a
       reasonable accommodation for a disability, medical
       condition, or injury (as alleged by the requestor) from
       Jan. 1, 2017, through Oct. 14, 2021, the Defendants will
       produce the name and the requestor's stated reasons for
       seeking accommodation. As described above, the Defendants
       may redact or remove names as long as the records include
       consistent identifiers unique to each person. The
       Defendants will also produce overtime reports for these
       officers in response to Revised RFP No. 88.

       The Defendants need not respond to Revised RFP No. 46 as
       written because it is plainly overbroad and not
       proportional to the needs of the case. RFP No. 46 seeks,
       for each officer identified in response to Interrogatory
       15, "all documents, communications, and electronically
       stored information concerning any requests(s) for an
       accommodation relating to any alleged disability, medical
       condition, or injury, or military service";

   (3) Military Status Class List: In response to Revised
       Interrogatory No. 12, the Defendants will produce the name
       of each officer who was a member of the U.S. Armed Forces
       from Jan. 1, 2017, through Oct. 14, 2021. As described
       above, Defendants may redact or remove names as long as
       the records include consistent identifiers unique to each
       person. The Defendants will also produce overtime reports
       for these officers in response to Revised RFP No. 88; and

   (4) Prior Complaints: As stated at the Dec. 6, 2022 status
       conference, the Court does not need to compel production
       of prior EEO complaints. The parties advised that the
       dispute is resolved and the Court already ordered
       production of the agreed-upon documents on Jan. 9, 2023.

Before any of the documents or information is produced, the parties
will meet and confer regarding the Plaintiffs' proposals for search
and production described in the parties' joint letter.

Accordingly, the motion to compel at ECF No. 45, as supplemented at
ECF No. 50, is granted in part and denied in part. The parties were
to appear at the previously scheduled status conference on Jan. 11,
2023, at 12:15 p.m., to discuss an amended discovery schedule and
implementation of this Order.

A full-text copy of the Court's Order dated Jan. 9, 2023, is
available at https://tinyurl.com/ymj9ehwe from Leagle.com.


NORTH CAROLINA: Court Dismisses Maye v. McKinney Without Prejudice
------------------------------------------------------------------
In the case, EDDIE R. MAYE, Plaintiff v. ANTONIO McKINNEY,
Defendants, Civil Case No. 3:22-cv-00647-MR (W.D.N.C.), Judge
Martin Reidinger of the U.S. District Court for the Western
District of North Carolina, Charlotte Division, dismisses the
complaint without prejudice.

The matter is before the Court on initial review of the pro se
Complaint. The Plaintiff is proceeding in forma pauperis.

The Plaintiff, who is incarcerated at the Alexander Correctional
Institution, filed the civil rights action pursuant to 42 U.S.C.
Section 1983 addressing an incidents that have allegedly occurred
in Anson, Union, and Cleveland Counties. He names as the sole
Defendant Antonio McKinney, who is also an inmate at Alexander CI.

The Plaintiff asserts claims for "malepractice/state/murder, rape,
kidnap, conspiracy, and stalking" He claims that, beginning on July
15, 2022, his family started being killed while he was harassed. He
describes the facts underlying his claims as follows:
"www.linkedin.com search homo or GMF it's all their." As injury, he
states that his injuries are mental: "pain and suffering, PTSD,
seen mental health and they did nothing!" As relief, he asks the
Court to "bring these monsters to justice by charging them for
their crimes and relief on his behalf."

Because the Plaintiff is proceeding in forma pauperis, Judge
Reidinger must review the Complaint to determine whether it is
subject to dismissal on the grounds that it is (i) frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.

To state a claim under Section 1983, a plaintiff must allege that
he was deprived of a right secured by the Constitution or laws of
the United States, and that the alleged deprivation was committed
under color of state law. To satisfy the state action requirement,
a plaintiff must demonstrate that the conduct at issue is fairly
attributable to the State. If the defendant is not a state actor,
there must be a sufficiently close relationship with state actors
such that a court would conclude that the non-state actor is
engaged in the state's actions.

In the case, Judge Reidinger finds that the Plaintiff names another
inmate as the sole Defendant, and the latter has failed to explain
how that inmate was acting under the color of state law for
purposes of Section 1983. He says the body of the Complaint alludes
to individuals who are not named as defendants in the caption as
required by Rule 10(a) of the Federal Rules of Civil Procedure.
Hence, the allegations directed at individuals not named as
Defendants are dismissed without prejudice.

The Complaint also alludes to individuals who were allegedly
injured besides the Plaintiff. As a pro se inmate, Judge Reidinger
says the Plaintiff is not qualified to assert a claim on behalf of
others. Therefore, to the extent that the Plaintiff has attempted
to assert claims on behalf of others, they are dismissed.

Moreover, the Plaintiff's allegations are so vague, conclusory, and
nonsensical that they fail to satisfy the most basic pleading
requirements. Accordingly, Judge Reidinger says the Complaint would
be dismissed as frivolous and for failure to state a claim even if
the Plaintiff had named a defendant against whom this action could
proceed.

In sum, the Complaint is dismissed without prejudice pursuant to 28
U.S.C. Section 1915(e)(2)(B)(i)-(ii). Judge Reidinger allows the
Plaintiff 30 days to amend his complaint, if he so chooses, to
correct the deficiencies identified in the Order and to otherwise
properly state a claim upon which relief can be granted. Any
Amended Complaint will be subject to all timeliness and procedural
requirements and will supersede his previous filings. Piecemeal
amendment will not be allowed. Should the Plaintiff fail to timely
file an Amended Complaint in accordance with the Order, the action
will be dismissed without prejudice and without further notice to
the Plaintiff.

The Clerk of Court is respectfully instructed to mail the Plaintiff
a blank Section 1983 prisoner complaint form and a copy of the
Order.

A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/4amuuura from Leagle.com.


NUWEST GROUP: W.D. Washington Narrows Claims in Hamilton Class Suit
-------------------------------------------------------------------
Judge John C. Coughenour of the U.S. District Court for the Western
District of Washington, Seattle, grants in part and denies in part
the Defendant's amended motion to dismiss the Plaintiffs' amended
class action complaint in the lawsuit captioned ANGELA HAMILTON,
and MATTHEW HOGAN, individually and on behalf of all others
similarly situated, Plaintiffs v. NUWEST GROUP HOLDINGS LLC,
Defendant, Case No. C22-1117-JCC (W.D. Wash.).

NuWest is a limited liability company incorporated in the State of
Washington with its principal place of business located at 353
118th Avenue Southeast, in Bellevue, Washington. It is a staffing
agency that contracts with hospitals to fill short-term employment
gaps by recruiting and employing traveling nurses.

According to the complaint, Plaintiffs Hamilton (citizen of
Oklahoma), Matthew Hogan (citizen of Kentucky), and McDermott
(citizen of Tennessee) were traveling nurses recruited by NuWest to
work in hospitals located in California, Montana, Wisconsin,
Michigan, Colorado, Texas, New York and Maine. Each of the
Plaintiffs accepted their individual job offers, and relocated to
their new state to begin working.

At some point following relocation, but before their initial
contracts expired, NuWest allegedly demanded that each accept a
revised contract with a reduced compensation package. The
Plaintiffs allege that they were left with no choice but to accept
this "take-it-or-leave-it" offer, given the substantial relocation
costs that were already incurred. Additionally, the Plaintiffs
allege NuWest excluded various stipends and allowances paid to its
employees from the base compensation rate used to calculate the
overtime rate for this new contract, in violation of federal and
state labor laws.

Based on these facts, the Plaintiffs bring 18 causes of action,
including common law contract and tort claims, along with claims
based on federal and state labor laws. The Plaintiffs claim they
are owed the difference in pay between the initial and revised
contracts, as well as the unpaid overtime. The claims presently at
issue are the Fourth, Fifth, Seventh, and Eleventh Causes of
Action.

The Defendant moves to dismiss the Fourth and Fifth because the
Plaintiffs have failed to properly plead fraud. The Defendant moves
to dismiss the Seventh and Eleventh Causes of Action because the
Plaintiffs lack standing to bring claims from states they do not
reside or work in.

The Plaintiffs' Seventh Cause of Action alleges violations of 44
different state wage-payment statutes. The Plaintiffs' Eleventh
Cause of Action alleges violations of 30 different state
overtime-protection statues. The Defendant urges the Court to
dismiss the bulk of the Plaintiffs state law claims because the
named Plaintiffs only have standing to assert violations of
California, Montana and Wisconsin state laws.

The Plaintiffs urge the Court to apply the class certification
approach, articulated in a relatively recent Ninth Circuit
decision, and deny the Defendant's motion. Under this approach,
Judge Coughenour opines "any issues regarding the relationship
between the class representative and the passive class
members--such as dissimilarity in injuries suffered--are relevant
only to class certification, not to standing," citing Melendres v.
Arpaio, 784 F.3d 1254, 1262 (9th Cir. 2015). The parties' opposing
positions rely on conflicting interpretations of this decision.

In Melendres, the plaintiffs brought a class action on behalf of
individuals stopped by Arizona police officers in two distinct
factual situations which, for the purpose of this analysis, will be
referred to as Group A and Group B.

The Court adopts Judge Benjamin Settle's reasoning and will not
defer the standing analysis. The weight of the authority, and a
logical reading of Melendres, favors this approach, Judge
Coughenour notes. Particularly because this is not an instance
where a plaintiff seeks to represent residents of other states
under a federal statute, which likely will not vary much among the
states. Rather, the Plaintiffs put forward a plethora of state
labor protection laws with potentially differing procedural and
substantive requirements, and scopes.

Therefore, the Court declines to postpone consideration until class
certification because, among other reasons, it has serious
reservations about subjecting Defendant to discovery in additional
states before the Plaintiffs first secure actual plaintiffs, who
clearly have standing and are willing and able to assert claims
under these state laws. As the Plaintiffs themselves note, they can
move to amend the Complaint to add any applicable claim if/when
additional parties are added to the case. But until then, the named
Plaintiffs are required to demonstrate that they have Article III
standing for every one of their claims.

Taken together, the named Plaintiffs allege to have worked and been
injured in California, Montana, Wisconsin, Michigan, Colorado,
Texas, New York, and Maine, respectively. The Plaintiffs do not
allege to have individual standing in any other state. Therefore,
because the class representative has the burden of proving Article
III standing, the Court Grants the Rule 12(b)(1) motion in part and
dismisses without prejudice all claims based on any other state
law.

But the inquiry does not end here, Judge Coughenour says. The
Defendant brings forward a factual challenge to the claim that
Plaintiff McDermott worked and was injured in Michigan, Colorado,
Texas, New York and Maine. In evaluating this factual challenge,
the Court need not presume the truthfulness of the Plaintiffs'
allegations. The Defendant puts forward evidence that Plaintiff
McDermott only worked in Wisconsin. Whereas the Plaintiffs fail to
provide any evidence to dispute this claim. Therefore, the Court
again grants the motion in part and dismisses without prejudice any
state law claim in the Seventh and Eleventh Causes of Action not
based in California, Montana and Wisconsin.

The Defendant next moves to dismiss the Fourth and Fifth Causes of
Action on the grounds that the Plaintiffs have failed to properly
plead fraud.

The Defendant argues that nowhere in the pleadings do the
Plaintiffs point to any particularized facts establishing the time,
place, and specific content of the allegedly false representation,
the materiality of the allegedly false representation, the falsity
of the representation at the time it was made, or the listener's
reliance on the false representation.

The Court disagrees. Judge Coughenour opines the Plaintiffs
properly plead facts supplying the who, what, when, where, and how
of the alleged fraudulent scheme, easily satisfying the heightened
pleading standard. Here, the Plaintiffs allege a systematic
practice of the allegedly fraudulent conduct, which is
circumstantial evidence of knowledge and intent.

Taken together, these facts satisfy the heightened pleading
standard, Judge Coughenour holds. Accordingly, the Court denies the
Defendant's Rule 12(b)(6) motion to dismiss the Plaintiffs' Fourth
and Fifth Causes of Actions.

For these reasons, the Defendant's motion to dismiss is granted in
part and denied in part. The state law claims, except those based
on California, Montana, and Wisconsin law, in the Seventh and
Eleventh Causes of Actions are dismissed without prejudice. The
remaining claims survive.

A full-text copy of the Court's Order dated Jan. 9, 2023, is
available at https://tinyurl.com/57x87ys6 from Leagle.com.


OLLY PUBLIC: Court Grants in Part Bid to Dismiss Murphy Class Suit
------------------------------------------------------------------
In the case, HOPE MURPHY, et al., Plaintiffs v. OLLY PUBLIC BENEFIT
CORPORATION, Defendant, Case No. 22-cv-03760-CRB (N.D. Cal.), Judge
Charles R. Breyer of the U.S. District Court for the Northern
District of California grants in part and denies in part Olly's
motion to dismiss.

Plaintiffs Hope Murphy, Carol Lesh, and Emily Jiang bring the
putative class action against the Defendant in connection with its
melatonin supplements. The Plaintiffs allege that Olly's products
include significantly more melatonin than the label asserts, and
therefore violate state consumer protection laws.

Olly, a Delaware corporation, sells melatonin supplements
nationwide at retailers like Walmart, Whole Foods, and Target.
Murphy and Lesh live in California, and purchased an Olly melatonin
product in California. Jiang lives in New York, and purchased an
Olly melatonin product in New York.

Melatonin is a neurohormone that regulates sleep. Millions of
consumers take over-the-counter melatonin supplements to help them
sleep. Federal law imposes a comprehensive regulatory scheme for
dietary supplements, including melatonin supplements.

The FDA forbids supplement labels that overstate quantities. Its
regulations require that the quantity of melatonin be at least
equal to the value declared on the label for the product's full
shelf life. A product that has less melatonin than is listed on the
label is misbranded.

The Plaintiffs did a liquid chromatograph-mass spectrometry
analysis on some Olly melatonin products. It appears that they
tested four non-expired bottles (three gummies per bottle) and four
expired, or nearly expired, bottles. The true amount of melatonin
in the Plaintiffs' bottles was 165% to 274% of the amount claimed.
Once Olly Melatonin expires, there is still far too much melatonin,
compared to the amount claimed on the label. This was true across
lots, within and across product types, and across expiration dates.
Olly melatonin products contain, allegedly, far more melatonin than
the 'reasonable excess' permitted by the FDA. Moreover, the
Plaintiffs allege that Olly's own data will confirm that Olly's
melatonin products have an unreasonable excess of melatonin based
on the records the FDA requires supplement manufacturers to create
and keep.

Murphy and Lesh initially brought suit in June of 2022, arguing
that Olly's products do not have the amount of melatonin claimed on
the label. The Plaintiffs amended the complaint in June of 2022.
Olly moved to dismiss the First Amended Complaint. Per the parties'
stipulation, the Plaintiffs then filed the Second Amended
Complaint.

The SAC now alleges that if Olly Melatonin were reasonably dosed,
the amount of melatonin at the end of the shelf life (when the
bottle expires) would be materially the same as the claim on the
label, i.e., close to 100% of the claimed amount. In contrast, if
Olly has an unreasonable excess of melatonin, even after a bottle
expires (i.e., its shelf life is over) there will be materially
more melatonin than the amount specified on the label. The test
results confirm that Olly has an unreasonable excess of melatonin.

The SAC includes claims for violation of: (1) California,
Connecticut, Illinois, Maryland, Missouri, and New York consumer
protection laws; (2) California's Unfair Competition Law (UCL); (3)
California's False Advertising Law (FAL); (4) California's
Consumers Legal Remedies Act (CLRA); (5) New York General Business
Law Section 349; (6) New York General Business Law Section 350; as
well as: (7) breach of express warranty; and (8) unjust
enrichment/quasi-contract.

Olly again moves to dismiss. It argues that the SAC should be
dismissed because: (A) all of the claims are preempted; (B) the
doctrine of primary jurisdiction requires deference to the FDA; (C)
Murphy and Lesh fail to state a claim under California consumer
protection laws; (D) the Plaintiffs are not entitled to monetary
relief; (E) the Plaintiffs' fraud claims are not pleaded with the
requisite particularity; (F) the Plaintiffs lack standing; (G) the
Plaintiffs' express warranty claims fail; (H) Plaintiffs' unjust
enrichment claims fail; and (I) Jiang fails to state a claim under
New York consumer protection laws.

Judge Breyer holds that most of these arguments are unpersuasive.

As to preemption, Judge Breyer does not dismiss the SAC based on
express preemption. He finds that the Plaintiffs have not alleged
that there is too much of something based on the "upper tolerable
intake limit" or some other metric. Instead, they allege that there
is more than what is required to "meet the label declaration for
that dietary ingredient throughout the product's shelf life."
Because Olly's claims would not impose requirements on
manufacturers that are different from what the FDA requires, they
are not preempted.

Judge Breyer also does not dismiss the SAC based on implied
preemption. He finds that the Plaintiffs rightly point out that
Olly's logic has absurd implications: to avoid express preemption,
the Plaintiffs have to plead that their claims parallel FDA
requirements, but by referencing the FDA's requirements, the
Plaintiffs' claims would be impliedly preempted. That is not how it
works, Judge Breyer points out.

As to primary jurisdiction, Judge Breyer does not apply the
doctrine of primary jurisdiction. He says it is not clear that
there is a need for the FDA to resolve the issue of unreasonable
overages. Nor is it clear that the Court needs defer to FDA
expertise on nutritional supplements. Courts are also supposed to
consider whether applying primary jurisdiction would promote
efficiency.

Regarding California consumer protection laws, Judge Breyer finds
that the Plaintiffs have adequately alleged violation of the
California consumer protection laws. He says the SAC plausibly
alleges that the melatonin dosage is material to consumers in
selecting an Olly melatonin product. And, whatever the proper
measure of damages, the Plaintiffs cover their bases by alleging
both that they paid a premium for the unreasonably overdosed
melatonin products, and that the products are worthless.

With respect to monetary relief, Judge Breyer does not dismiss the
request for equitable relief at this point. He says the Plaintiffs
alleged that legal remedies were not as certain as equitable
remedies and he finds it sufficient.

As to fraud claims, Judge Breyer holds that Olly's arguments under
Rule 9(b) fail. The Plaintiffs have alleged that they read and
relied on the accuracy of the melatonin content on the label when
buying the product and deciding to take it and that they selected
and purchased the melatonin product that they did because they did
not want to take more than that quantity of melatonin from the
product, due to increased concerns about side effects and safety.
In other words, they chose not to purchase a higher dose because
they did not want a higher dose. The SAC therefore alleges not only
that the Plaintiffs saw the challenged statement, but that they
relied on it in making their purchases and that it was material.

In light of Olly's meager showing about other states' laws, and
because the SAC only asserts state claims for four additional
states (far outweighed by the populations of California and New
York), Judge Breyer denies Olly's motion to dismiss on this basis,
but will allow Olly to re-raise this issue at a later date, likely
framed as whether, per Rule 23, the Plaintiffs can represent class
members with claims based on other states' laws.

Judge Breyer also does not dismiss the express warranty claim. The
Plaintiffs have plausibly alleged that Olly issued material,
written warranties by representing that Olly Melatonin had a
particular amount of melatonin per serving, that the "Plaintiffs
relied on this warranty, and that Olly does not conform to this
warranty because, as alleged in detail, Olly's labelling is
inaccurate and its dosing is unreasonably excessive. Thus, the
warranty was breached. The Plaintiffs also plausibly allege that
they were injured as a result of Olly's breach because they would
not have purchased Olly's melatonin products if they had known the
warranty was false. This is sufficient.

Finally, Judge Breyer does not dismiss the New York consumer
protection claims. He concludes that the Plaintiffs plausibly
allege that Olly does not comply with federal law. The Plaintiffs
also do not fail to allege that they suffered "any other harm."
They allege that the harm to Jiang was being overcharged for a
misbranded product that they did not want.

For the foregoing reasons, Judge Breyer grants the motion to
dismiss only as to the unpurchased products, and denies it in all
other respects. The Plaintiffs may amend their complaint as to the
unpurchased products, if they wish to do so, within 30 days of the
Order.

A full-text copy of the Court's Jan. 17, 2023 Order is available at
https://tinyurl.com/ktz7ae7c from Leagle.com.


ORBIT/FR INC: Loses Bid to Dismiss Claim in Stockholders Suit
-------------------------------------------------------------
Vice Chancellor Sam Glasscock, III, of the Court of Chancery of
Delaware denies the Defendants' motion to dismiss a claim in the
lawsuit styled IN RE ORBIT/FR, INC. STOCKHOLDERS LITIGATION, Case
No. 2018-0340-SG (Del. Ch.).

Before the Court is an unusual motion to dismiss. Unusual, in that
it comes after years of litigation. And unusual, in that it seeks
to dismiss a claim that is not actually pled, Vice Chancellor Sam
Glasscock, III, points out.

The Plaintiff is a former stockholder (and representative of a
putative class of such stockholders) of a Delaware corporation. The
minority stockholders were squeezed out in a controller
acquisition. Resulting is an entire fairness review. The Plaintiff
has filed an amended complaint, to add an allegation that among the
assets of the corporation at the time of the merger was an inchoate
claim for breach of duty against the controller and the board,
which should be accounted for in the entire fairness analysis.

The Defendants, in their motion, seek to characterize this as a
Primedia claim; having done so, they seek to dismiss it (In re
Primedia, Inc. Shareholders Litigation, 67 A.3d 455 (Del. Ch.
2013)). But the alleged pre-existing breach of duty claim is not a
derivative cause of action acquired by a third-party buyer, a la
Primedia, Vice Chancellor Glasscock notes. It is a component of a
straightforward entire fairness analysis of the price and process
of the acquisition. The motion to dismiss, accordingly, is denied,
for reasons that follow.

The litigation is a putative class action by a former stockholder
of a Delaware corporation, Orbit/FR, Inc. ("Orbit"). From 2008
through 2018, the controller and holder of a majority of Orbit
stock was a French company, currently known as Microwave Vision,
S.A. ("Micro" or the "Controller"). In April 2018, the minority
stockholders were squeezed out in a merger, in which Micro acquired
Orbit. A former stockholder, Minerva Group, LP, brought an action
challenging the fairness of the merger. The matter withstood a
motion to dismiss. Eventually, the parties reached an agreement and
proposed a settlement, including cash consideration to be paid to
minority stockholders.

Current Plaintiff, AB Value Partners, L.P. ("Partners") objected to
the settlement and sought to take over the litigation from Minerva.
Partners was the largest minority blockholder of Orbit, and held a
majority of the minority stock prior to the merger. After
consideration of the proposed settlement and the objection, Vice
Chancellor Glasscock allowed Partners to assume lead-plaintiff
status and continue the litigation upon the posting of a bond
representing the cash component of the proposed settlement together
with Minerva's attorneys' fees and costs requested in connection
with the proposed settlement.

Vice Chancellor Glasscock held that Partners could file an amended
complaint, asserting certain elements of the purportedly unfair
nature of the transaction, without prejudice to the right of the
Defendants (Micro and certain Orbit fiduciaries) to oppose any
amendment under Rule 15. Partners filed the required bond, as well
as an amended complaint styled the Substitute Complaint (the "SC").
The Defendants have moved to dismiss the SC, as out of compliance
with Rule 15, as barred by laches, and for failure to state a
claim.

Regarding the laches/Rule 15 argument, the Defendants, in briefing
and oral argument, have clarified that they do not necessarily
believe the matter should be dismissed entirely, but instead that
Partners should be limited to litigating the old Minerva complaint,
simply substituting Partners as lead plaintiff. They allege that
the SC states an "entirely new" complaint, since it raises
allegations that the Controller had looted Orbit pre-merger, and
then acted to extinguish the resulting inchoate litigation asset
via the unfair merger.

Vice Chancellor Glasscock disagrees that the gravamen of the SC is
entirely new, however. Both the Minerva complaint and the SC state
a single cause of action--that the merger was unfair in price and
process. The additional facts alleged in the SC clarify one
supposed asset that they characterize as unfairly valued; that does
not change the nature of the claim. The claim in both complaints
arises out of the merger, and, thus, the SC relates back to the
time of filing of the Minerva complaint.

Vice Chancellor Glasscock opines that the new allegations create no
unfairness to Micro or Orbit's former directors, Philippe Garreau,
Per Iversen, Arnaud Gandois, and Douglas Merrill (collectively the
"Director Defendants"). Accordingly, neither the strictures of
laches nor Rule 15 bar Partners' claims.

As stated, the rest of the motion to dismiss, invoking failure to
state a claim, is procedurally odd, Vice Chancellor Glasscock says.
Specifically, the motion seeks to "dismiss," or remove from the SC,
allegations that Micro used its control to loot Orbit before the
merger, then used the merger as a device to avoid liability,
effectively destroying the value of an Orbit asset--the inchoate
litigation claim Orbit had against Micro regarding the alleged
looting. The SC contends that a tool of looting was an agreement
between Orbit and its controller, Micro (the "Management
Agreement").

The Defendants (and the Plaintiff, as well, in briefing) have
treated these allegations as an attempt to state a so-called
Primedia claim, Vice Chancellor Glasscock notes. But Primedia does
not fit this scenario. The question in Primedia was whether a
litigation asset being pursued derivatively--a Brophy insider
trading claim against Primedia fiduciaries--was extinguished by
sale of the company to a third party, who had no interest in
pursuing the claim and did not value it as an asset in the merger
(Brophy v. Cities Serv. Co., 70 A.2d 5 (Del. Ch. 1949)). The
Primedia court noted that corporate assets--like the derivative
claim at issue--passed to the buyer, extinguishing the derivative
claim as such, but found that the former derivative claim could be
asserted by former stockholders as transmogrified into a direct
claim that the merger was unfair. The Primedia court imposed
appropriately stringent standards for such a proceeding, in light
of the general rule that the derivative asset had transferred to
the acquiror, and was not retained by the former stockholders.

Here, there was no pending derivative action, or even a substantial
threat of litigation, as of the time of the merger, Vice Chancellor
Glasscock notes. The Management Agreement features heavily in the
factual allegations of the SC, which suggests breaches of duty in
here in the conduct of the controller pursuant to the Management
Agreement. The Defendants argue that, analyzed under the lens of
Primedia, the allegations of the SC must be dismissed. But this, in
the Court's view, is not the claim stated in the SC. The Plaintiff
has not attempted to state a Primedia claim, and the analysis by
the court in Primedia is not applicable here, Vice Chancellor
Glasscock holds.

Vice Chancellor Glasscock holds that the matter is an entire
fairness case in which the controller stands on both sides. There
are two counts in the SC, one against the controller and one
against the Director Defendants, both alleging a single cause of
action; that the merger was unfair in both price and process. Those
counts are adequate to state a claim under the circumstances pled,
and are not seriously challenged by the Defendants.

Vice Chancellor Glasscock finds that a stand-alone breach of
fiduciary duty claim concerning the Management Agreement was not
filed here. Instead, the Plaintiff's allegation is that the
Controller, aided by the Director Defendants, effected an unfair
merger. Among the allegations of the SC is that the Controller had
systematically looted Orbit, creating a chose-in-action as an asset
belonging to Orbit, for breach of fiduciary duty. The Controller
then purchased Orbit at an unfair price, in part because the
controller bought out its own liability for no value.

Whether such allegations are true, and to what extent they may be
cognizable as indicia of unfairness of process or price, is a
matter for this case on a record, Vice Chancellor Glasscock notes.
But to the extent the existence of a pre-merger litigation asset,
held by Orbit, contributes to a finding of the unfairness of the
merger, that unfairness is not extinguished via the merger; it is
created by the merger.

The real relief the Defendants seek here appears to be a kind of
backdoor protective order, foreclosing discovery based on a
directive that no Primedia claim exists, Vice Chancellor Glasscock
says. But such a limitation is not appropriate on a motion to
dismiss. Vice Chancellor Glasscock finds that the allegations of
the SC, sounding in entire fairness review, are sufficient to
withstand a motion to dismiss. Discovery pursuant to that review
should proceed.

Because this matter has proceeded here as a motion to dismiss, Vice
Chancellor Glasscock has not considered whether limitations to
discovery regarding the purported litigation asset are appropriate.
Nothing in this decision precludes the Defendants from seeking a
protective order, on grounds of relevance, proportionality, or
otherwise, limiting discovery into the purported litigation asset.

To recapitulate succinctly: The Plaintiff has pled an adequate
claim involving a controller transaction invoking entire fairness;
the resulting review will assess fairness in light of all assets of
the acquired entity; those assets are alleged to include a
litigation asset, a chose-in-action based on prior breaches of duty
by the controller; the viability and value of that and other assets
of the acquired entity, and the fairness of the process, must be
assessed on a record. Accordingly, Vice Chancellor Glasscock holds
the Defendants' motion must be denied.

For these reasons, the Defendants' motion to dismiss is denied. To
the extent the foregoing requires an Order to take effect, Vice
Chancellor Glasscock so ordered.

A full-text copy of the Court's Memorandum Opinion dated Jan. 9,
2023, is available at https://tinyurl.com/4tzw2c5u from
Leagle.com.

A. Thompson Bayliss -- Bayliss@AbramsBayliss.com -- E. Wade Houston
-- Houston@AbramsBayliss.com -- and G. Mason Thomson --
Thomson@abramsbayliss.com -- of ABRAMS & BAYLISS LLP, in
Wilmington, Delaware, Attorneys for Plaintiff AB Value Partners,
L.P.

Ashley R. Altschuler -- aaltschuler@mwe.com -- Ethan H. Townsend --
ehtownsend@mwe.com -- Harrison S. Carpenter -- hcarpenter@mwe.com
-- and Kevin M. Regan -- kregan@mwe.com -- of McDERMOTT WILL &
EMERY LLP, in Wilmington, Delaware, Attorneys for Defendants
Microwave Vision S.A., Phillippe Garreau, and Arnaud Gandois.

Daniel M. Silver --- dsilver@mccarter.com -- Benjamin A. Smyth --
dsilver@mccarter.com -- and Travis J. Ferguson --
tferguson@mccarter.com -- of McCARTER & ENGLISH, LLP, in
Wilmington, Delaware, Attorneys for Defendant Douglas Merrill.

Henry E. Gallagher Jr. -- hgallagher@connollygallagher.com -- and
Shaun Michael Kelly -- skelly@connollygallagher.com -- of CONNOLLY
GALLAGHER LLP, in Wilmington, Delaware, Attorneys for Defendant Per
Iversen.


OREGON: Court Grants Bid to Dismiss Thompson's Class Allegations
----------------------------------------------------------------
Senior District Judge Michael W. Mosman of the U.S. District Court
for the District of Oregon, Portland Division, grants the
Defendants' Motion to Dismiss Class Action Allegation Verified
Complaint in the lawsuit styled JOSEPH EUGENE ALLEN, Plaintiff v.
CHAPLAIN THOMPSON, et al., Defendants, Case No. 6:22-cv-00542-YY
(D. Or.).

On Oct. 7 2022, Magistrate Judge Youlee Yim You issued her Findings
and Recommendation ("F&R"), recommending that the Defendants'
Motion to Dismiss Class Action Allegation Verified Complaint
("Partial Motion to Dismiss") be granted. Neither party filed
objections. Judge Mosman agrees with Judge You's recommendation,
but writes further to more fully explain his reasoning.

As the F&R describes, pro se Plaintiff Joseph Eugene Allen filed
this action against several correctional officers and chaplains.
The suit alleges that the Nation of Islam's ("NOI") Friday prayer
services in prison were improperly cancelled, resulting in various
constitutional violations. His complaint contains the label "CLASS
ACTION ALLEGATION" in its heading and appears, at first glance, to
be a class action containing six claims.

However, the complaint actually consists of twelve claims. They are
numbered one through six, with each number having two claims, e.g.,
"Claim 1" and "Claim 1 a." The first claim in each numbered pair is
the Plaintiff's attempt to bring a class action claim for that
violation. These claims--for example, "Claim 1"--are labeled "CLASS
ACTION ALLEGATION" at the start of each claim. The second claim in
each pair--for example, "Claim 1 a"--is an individual version of
the same claimed violation.

The Defendants moved to dismiss. The Plaintiff responded, noting
that he had included six individual and six class action claims in
the complaint. Defendants' reply clarified that they were moving to
dismiss the class action claims. The F&R dismissed Plaintiff's
class action claims.

Judge Mosman notes that courts must construe pro se pleadings
liberally and give plaintiffs the benefit of the doubt, citing
Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003).
As such, Judge Mosman holds that Judge You rightfully dismissed
only the Plaintiff's class action claims and kept the Plaintiff's
individual claims alive. And regardless of whether a pro se
litigant can bring a class action, the Plaintiff's purported class
action claims fail as a matter of law to satisfy at least two
essential requirements--numerosity and superiority.

Among other requirements, a plaintiff may only sue as a
representative of a class if the class is (i) so numerous that
joinder of all members is impracticable, and (ii) a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy, Fed. R. Civ. P. 23(a)(1), (b)(3).

The Plaintiff attached to his complaint a list of approximately
eleven persons, who attend NOI's Friday prayer services. The
Plaintiff's alleged class action claims, thus, fail the numerosity
requirement, because joinder of a dozen or so NOI members is not
impracticable, Judge Mosman holds.

Similarly, because NOI members could be joined in a single suit, a
class action is not superior to other available methods for fairly
adjudicating the claims at stake, Judge Mosman opines. It is,
therefore, not subject to factual dispute that the Plaintiff's
class actions claims must fail as a matter of law and should be
dismissed.

Upon review, Judge Mosman agrees with Judge You's recommendation,
and adopts the F&R as his own opinion, with the additional
analysis. The Defendants' Partial Motion to Dismiss is granted as
to Claims 1, 2, 3, 4, 5, and 6. Judge Mosman dismisses those
purported class-action claims with prejudice. The Plaintiffs'
individual claims--Claims la, 2a, 3a, 4a, 5a, and 6a--remain.

A full-text copy of the Court's Opinion and Order dated Jan. 9,
2023, is available at https://tinyurl.com/4yxyas5c from
Leagle.com.


PEP BOYS-MANNY: Mackey Suit Removed to M.D. Fla.
------------------------------------------------
The case styled SAMANTHA MACKEY, individually and on behalf of all
others similarly situated, Plaintiff v. THE PEP BOYS-MANNY, MOE &
JACK, Defendant, Case No. 2022-CA-5629-CI, was removed from the
Sixth Judicial Circuit Court in and for Pinellas County, Florida,
to the United States District Court for the Middle District of
Florida on January 13, 2023.

The Clerk of Court for the Middle District of Florida assigned Case
No. 8:23-cv-00098 to the proceeding.

The Plaintiff's single-count complaint seeks relief from Defendant,
on behalf of herself and a putative class of similarly-situated
persons, for allegedly making or causing to be made multiple
unlawful telephonic sales calls without the prior express written
consent of Plaintiff and the putative class members, in purported
violation of the Florida Telephone Solicitation Act.

The Pep Boys-Manny, Moe & Jack is an American automotive
aftermarket service chain.[BN]

The Defendant is represented by:

          Josh A. Migdal, Esq.
          Yaniv Adar, Esq.
          MARK MIGDAL & HAYDEN
          80 S.W. 8th Street, Suite 1999
          Miami, FL 33130
          Telephone: (305) 374-0440
          E-mail: josh@markmigdal.com
                  yaniv@markmigdal.com

PFIZER INC: Health Fund Balks at Varenicline Containing Drugs
-------------------------------------------------------------
OHIO CARPENTERS' HEALTH FUND, individually and on behalf of all
others similarly situated, Plaintiff v. PFIZER INC., Defendant,
Case No. 1:23-cv-00396 (S.D.N.Y., January 17, 2023) is a class
action against the Defendant for breach of express warranties,
breach of implied warranties, fraud, negligent misrepresentation
and omission, unjust enrichment, negligence, negligence per se, and
violations of the Magnuson-Moss Warranty Act and State Consumer
Protection Laws.

The case arises from the Defendant's production, marketing,
labeling, and distribution of adulterated, misbranded, or
unapproved varenicline containing drugs (VCDs) under the brand name
Chantix. The Defendant represented and warranted that the VCDs were
fit for their ordinary uses, met the specifications of its
FDA-approved labeling materials, and that it manufactured and
distributed the VCDs in accordance with all applicable laws and
regulations. However, the Defendant's VCDs were adulterated,
misbranded, or both through contamination with a probable human
carcinogen known as N-nitroso-varenicline. Additionally, the
Defendant was on notice of other potential contamination from
nitrosamines such as N-nitrosodimethylamine (NDMA) and
N-nitrosodiethylamine (NDEA).

Ohio Carpenters' Health Fund is a voluntary employee benefit
association located in Troy, Michigan.

Pfizer Inc. is a pharmaceutical and biotechnology corporation,
headquartered in New York, New York. [BN]

The Plaintiff is represented by:                
      
         Joseph P. Guglielmo, Esq.
         Donald A. Broggi, Esq.
         Michelle Conston, Esq.
         SCOTT+SCOTT ATTORNEYS AT LAW LLP
         230 Park Avenue, 17th Floor
         New York, NY 10169
         Telephone: (212) 223-6444
         E-mail: jguglielmo@scott-scott.com
                 dbroggi@scott-scott.com
                 mconston@scott-scott.com

                - and -

         Lyndsey K. Bates, Esq.
         ASHER KELLY ATTORNEYS AT LAW
         25800 Northwestern Highway, Suite 1100
         Southfield, MI 48075
         Telephone: (248) 746-2753
         E-mail: lbates@asherkellylaw.com

PHARMAGENICS LLC: Ibarra Mislabeling Suit Removed to C.D. Cal.
--------------------------------------------------------------
The case styled PEDRO IBARRA, individually and on behalf of all
other similarly situated, Plaintiff v. PHARMAGENICS LLC; DOES 1
THROUGH 10, inclusive, Defendants, Case No.
30-2022-01294748-CU-CR-CXC, was removed from the Superior Court of
the State of California for the County of Orange, to the United
States District Court for the Central District of California on
January 17, 2023.

The Clerk of Court for the Central District of California assigned
Case No. 8:23-cv-00116-CJC-ADS to the proceeding.

The Plaintiff alleges that Defendant manufactures and sells Dr.
Stephanie's Carb & Sugar Blocker and that Defendant makes "false
and misleading efficacy claims" to market and advertise the
product. The complaint asserts cause of action against Defendant
for supposed violations of California Business and Professions
Code, the Consumers Legal Remedies Act, breach of express warranty,
and breach of implied warranty.

Pharmagenics LLC develops, manufactures, promotes, markets,
distributes, and sells diet pills in California.[BN]

The Defendant is represented by:

          William P. Cole, Esq.
          Matthew R. Orr, Esq.
          Richard L. Hyde, Esq.
          AMIN TALATI WASSERMAN, LLP
          515 South Flower St., 18th Floor
          Los Angeles, CA 90071
          Telephone: (213) 933-2330
          Facsimile: (312) 884-7352
          E-mail: william@amintalati.com
                  matt@amintalati.com

POPULUS GROUP: Court Awards Taylor's Counsel $60K in Fees & Costs
-----------------------------------------------------------------
Judge Cynthia Bashant of the U.S. District Court for the Southern
District of California awards the Class Counsel $58,333 in
attorneys' fees and $1,793 in litigation costs in the lawsuit
titled JEFFREY TAYLOR, Plaintiff v. POPULUS GROUP, LLC, et al.,
Defendants, Case No. 20-cv-0473-BAS-DEB (S.D. Cal.).

Before the Court is the Plaintiff's unopposed motion for attorneys'
fees, costs, and incentive award. The Court held a fairness hearing
for the parties' class action settlement on Jan. 9, 2023. The Court
notes that no attorneys attended the hearing. Despite that
oversight, the Court grants Plaintiff's motion.

The litigation has proceeded for nearly three years. On Dec. 20,
2019, Plaintiff Jeffrey Taylor filed a putative class action
complaint in San Diego Superior Court against Defendants Populus
Group, LLC, and Neutron Holdings, Inc., dba Lime. The Plaintiff
alleges several wage and hour violations against the Defendants.
Populus removed the action to federal court.

The operative Complaint alleges: (1) failure to pay minimum and
regular wages for all "hours worked" in violation of California
Labor Code Sections 1194, 1194.2, and 1197.2; (2) failure to pay
overtime wages in violation of California Labor Code Sections 510
and 1194; (3) failure to provide accurate itemized wage statements
showing all "hours worked" in violation of California Labor Code
Section 226; (4) failure to timely pay all wages owed at
termination or separation from employment in violation of
California Labor Code Section 203; (5) unfair competition in
violation of California Business and Professions Code Section
17200, et seq.; (6) and violations of the Private Attorneys General
Act of 2004 ("PAGA") pursuant to California Labor Code Section
2698, et seq. Plaintiff Jeffrey Taylor is the Class Representative,
and Davtyan Law Firm, Inc., and Cohelan Khoury & Singer are Class
Counsel.

Class Counsel summarizes, "Class Counsel and/or Plaintiff have
conducted substantial investigation, research, and analysis;
drafted PAGA charges and four iterations of the complaint; defeated
a motion to strike; produced and received formal and informal
discovery; drafted briefs for and attended two ENEs; and, after
extensive negotiations, reached a settlement."

To settle this action, Populus and Lime agree to deposit a gross
settlement amount of $175,000 into a non-reversionary, common fund.
The amount will be distributed as follows: (i) a maximum of
$58,333.33 for attorneys' fees, of which one-third will be
distributed to the Davtyan Law Firm, Inc. and two-thirds to Cohelan
Khoury & Singer; (ii) a maximum of $4,000 for litigation costs;
(iii) $5,000 for Mr. Taylor's Class Representative service payment;
(iv) a maximum of $4,000 for administration costs; (v) $10,000 in
civil PAGA penalties, of which 75% ($7,500) will be distributed to
the California Labor & Workforce Development Agency (LWDA), and 25%
($2,500) will be distributed proportionately to eligible PAGA
Members based on the number of pay periods while employed during
the PAGA Period; (vi) $3,383.75 for employer tax obligations; and
(vii) a net settlement amount of $90,282.92 to be distributed
proportionately to Class Members based on the number of weeks
worked during the Class Period.

Populus estimates a total of 4,245 weeks worked by Class Members
during the Class Period. Accordingly, Class Members may expect to
receive an estimated $21.26 for each week worked during the Class
Period. Eligible PAGA Members will also receive a portion of the
$2,500 PAGA Member payment based on the number of pay periods while
employed during the PAGA Period.

In its Preliminary Settlement Approval Order, the Court raised
concerns regarding the attorneys' fee provision. The Court flagged
two issues with the proposed fees. First, the Settlement Agreement
includes a clear sailing provision--where the Defendant agrees to
not object to fees up to a certain amount. The Ninth Circuit has
warned courts that clear sailing agreements can indicate possible
collusion and admonished courts to scrutinize requests for
attorneys' fees and costs appropriately.

Second, Class Counsel requests 33.3% of the gross settlement amount
in attorneys' fees. In the Ninth Circuit, the benchmark award is
25%. Thus, Judge Bashant says, the requested attorneys' fees well
exceed the Circuit's benchmark. That said, fees often range between
20% and 33 1/3% of the total settlement value. In order to analyze
the attorneys' fees request, the Court required Class Counsel to
submit their billing records and use the lodestar method to
cross-check the fee award at final approval.

Under the percentage-of-recovery method, the court has discretion
to award attorneys a percentage of the common fund. In determining
this percentage, courts consider a number of factors including (1)
the results achieved, (2) the risk of litigation, (3) the skill
required and the quality of work, (4) the contingent nature of the
fee, and (5) awards made in similar cases. The Court finds 33.3% is
appropriate in this case.

The Ninth Circuit encourages district courts to cross-check their
conclusions under the percentage-of-recovery method with the
lodestar method, or vice versa. Under the lodestar method, the
district court must calculate the lodestar figure based on the
number of hours reasonably expended on the litigation, adjusting
the figure to account for the degree of success class counsel
attained, along with other factors.

Here, the requested award is $58,333.33. Class Counsel calculates
the lodestar figure to be approximately $149,603.50. This figure
assumes Class Counsel's hourly rates are reasonable. But even
assuming without deciding that Class Counsel's proposed rates are
inflated, the lodestar figure still validates the
percentage-of-recovery method, Judge Bashant says. Indeed, even if
the Court cut Class Counsel's rates by 50%, the lodestar figure
would far exceed the percentage-of-recovery figure. Therefore,
Judge Bashant holds the lodestar method confirms the conclusion
that the requested fee award is reasonable.

The Plaintiff also seeks reimbursement of litigation costs on Class
Counsel's behalf. Here, Class Counsel have incurred $1,793.76 in
costs. The Court finds these costs ordinary and reasonable.
Accordingly, the Court grants the Plaintiff's request for $1,793.76
in costs.

Last, the Plaintiff requests approval of a $5,000 incentive award.
In its Preliminary Settlement Approval Order, the Court deferred
judgment on the Class Representative payment. The Court requested
that Mr. Taylor further explain his role as Class Representative to
justify the incentive award.

In response, Mr. Taylor submitted a declaration estimating he spent
thirty to forty hours prosecuting this case. The time included
searching for and interviewing attorneys, collecting for documents,
communicating with retained counsel, answering written discovery,
preparing for a scheduled deposition, speaking with class members,
attending two early neutral evaluations, and reviewing and
discussing the settlement.

In addition, the Plaintiff was informed that he might be liable for
the opposing parties' costs if the litigation was unsuccessful. In
light of Mr. Taylor's declaration, the Court is satisfied Mr.
Taylor's requested $5,000 Class Representative fee is fair and
reasonable.

For the reasons stated, the Court grants the Plaintiff's motion for
attorneys' fees, costs, and incentive award.

The Court finds that Class Counsel, having expended efforts to
secure a benefit to the Class and having conferred a benefit on
absent Class Members, are entitled to a fee. The Court approves the
application of Class Counsel for an award of $58,333.33 for their
attorneys' fees. The Court awards Class Counsel reimbursement of
their litigation costs of $1,793.76.

The Court approves a Class Representative Service Payment of $5,000
to Plaintiff Jeffrey Taylor.

The Court orders the Class Administrator to make these payments in
accordance with the Settlement Agreement.

A full-text copy of the Court's Order dated Jan. 9, 2023, is
available at https://tinyurl.com/5yaxkbjx from Leagle.com.


PRESTIGE BUILDING: Bachan Seeks Construction Workers' Unpaid Wages
------------------------------------------------------------------
CARLOS ALFREDO BACHAN, on behalf of himself, and others similarly
situated, Plaintiff v. PRESTIGE BUILDING SUPPLY INC.; DAVID'S
CONSTRUCTION & HOME IMPROVEMENT CORP.; and DAVID LOJA,
individually, Defendants, Case No. 1:23-cv-00296 (E.D.N.Y., January
17, 2023) is brought by the Plaintiff pursuant to the Fair Labor
Standards Act and the New York Labor Law to recover from the
Defendants unpaid wages and overtime compensation; unpaid spread of
hours premiums for each day he worked a span of more than 10 hours;
liquidated damages and statutory penalties pursuant to the New York
Wage Theft Prevention Act; pre-judgment and post-judgment interest;
and attorneys' fees and costs.

Plaintiff Bachan was employed by the Defendants in Queens County,
New York, to work for Defendants' construction businesses, doing
tasks required for the installation of driveways and building
foundations and general construction, from approximately February
17, 2021 through January 6, 2023.

Prestige Building Supply Inc. is a building materials store in New
York City, New York.[BN]

The Plaintiff is represented by:

          Justin Cilenti, Esq.
          Peter Hans Cooper, Esq.
          CILENTI & COOPER, PLLC
          60 East 42nd Street, 40th Floor
          New York, NY 10165
          Telephone: (212) 209-3933
          Facsimile: (212) 209-7102
          E-mail: pcooper@jcpclaw.com

RBC DOMINION: Faces $800-M Class Action Over Holiday Pay Practices
------------------------------------------------------------------
Jim Wilson, writing for CanadianHRReporter, reports that a division
of RBC is facing a now certified $800 million class-action
lawsuit.

The certification opens the door for the court to examine the
particular vacation and holiday pay practices at RBC DS [Dominion
Securities], and whether the claims are true, say co-lead class
counsel David O'Connor, Daniel Lublin and Stephen Moreau at the law
firms of Roy O'Connor, Cavalluzzo and Whitten&Lublin who represent
the class members.

"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," they say.

Recently, after a legal action that lasted for more than 15 years,
CIBC agreed to pay a total of $153 million to roughly 30,000
current and former employees.

RBC cites fair compensation practices
But the court's decision to allow the lawsuit to proceed as a class
action is a procedural step only and not a ruling on the merits of
the case, said Greg Skinner, spokesperson for RBC in a statement.

"There has not yet been a trial and the court has not made any
decision on whether RBC DS employees have appropriately received
statutory vacation and holiday pay."

RBC believes that all advisors have received their statutory
vacation and holiday pay, it said, and "takes the allegations
seriously and ensures that everyone who works at any RBC company is
fairly compensated and we will be defending ourselves."

With the matter still before the courts, RBC said it had no further
comments.

In Ontario, an employee has two avenues for bringing claims
relating to alleged breaches of the Employment Standards Act, 2000
(ESA), including an alleged failure to pay wages or a wrongful
dismissal claim, according to one legal expert.

Claims of underpayment
In the lawsuit, Leigh Cunningham -- a former RBC Dominion
Securities (RBC DC) investment advisor who earned commission
payments -- claims that the employer improperly underpaid
commissioned investment advisors and their associates and
assistants.

That apparently happened when the company failed to pay additional
vacation and statutory holiday pay on top of their commissions or
variable income, she says.

Provincial legislation requires employers 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, notes law firm Cavalluzzo.

The Ontario Superior Court of Justice released a decision
certifying the lawsuit as a class proceeding on Dec. 29, 2022.

"I am very pleased with this favourable decision", says 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." [GN]

REST HAVEN: Shivers Sues Over Unpaid Overtime for Caregivers
------------------------------------------------------------
KATRINA SHIVERS, individually and on behalf of all others similarly
situated, Plaintiff v. REST HAVEN ILLIANA CHRISTIAN CONVALESCENT
HOME, INC., d/b/a/ PROVIDENCE LIFE SERVICES, Defendant, Case No.
1:23-cv-00262 (N.D. Ill., January 17, 2023) is a class action
against the Defendant for its failure to compensate the Plaintiff
and similarly situated caregivers overtime pay for all hours worked
in excess of 40 hours in a workweek in violation of the Fair Labor
Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage
Payment and Collection Act.

The Plaintiff was a full-time employee of Rest Haven who worked as
a caregiver from approximately November 29, 2006, through
approximately May 10, 2021.

Rest Haven Illiana Christian Convalescent Home, Inc., doing
business as Providence Life Services, is a provider of care
consulting and assisted living services, headquartered in Tinley
Park, Illinois. [BN]

The Plaintiff is represented by:                
      
         Michael L. Fradin, Esq.
         8 N. Court St. Suite 403
         Athens, OH 45701
         Telephone: (847) 986-5889
         Facsimile: (847) 673-1228
         E-mail: mike@fradinlaw.com

                - and -

         James L. Simon, Esq.
         SIMON LAW CO.
         5000 Rockside Road
         Liberty Plaza, Suite 520
         Independence, OH 44131
         Telephone: (216) 816-8696
         E-mail: james@simonsayspay.com

ROBINSON HOOVER: Downs Files FDCPA Suit in W.D. Oklahoma
--------------------------------------------------------
A class action lawsuit has been filed against Robinson Hoover &
Fudge PLLC. The case is styled as Kara Downs, on behalf of all
others similarly situated v. Robinson Hoover & Fudge PLLC, Case No.
5:23-cv-00064-PRW (W.D. Okla., Jan. 19, 2023).

The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.

Robinson Hoover & Fudge, PLLC -- https://www.rhfok.com/ -- provide
consumer debt collection services to debt purchasers throughout
Oklahoma.[BN]

The Plaintiff is represented by:

          Yaakov Saks, Esq.
          STEIN SAKS, PLLC
          One University Plaza, Suite 620
          Hackensack, NJ 07601
          Phone: (201) 282-6500
          Email: ysaks@steinsakslegal.com


SAFELITE FULFILLMENT: Awadallah Labor Suit Removed to D. Mass.
--------------------------------------------------------------
The case styled Ahmed Awadallah and Jeffrey Sousa, on behalf of
themselves and others similarly situated, Plaintiffs v. Safelite
Fulfillment, Inc., Defendant, Case No. 2281CV03944, was removed
from the Superior Court, Commonwealth of Massachusetts, Middlesex,
to the United States District Court for the District of
Massachusetts, Eastern Division, on January 17, 2023.

The Clerk of Court for the District of Massachusetts assigned Case
No. 1:23-cv-10110-PBS to the proceeding.

The complaint defines the putative class as "all individuals who
have worked for Safelite Fulfillment, Inc. in Massachusetts as an
hourly-paid technicians or master technician since November 15,
2019." This putative class action seeks compensatory damages,
statutory trebling, interest, and attorney's fees arising from the
Defendant's alleged unfair labor practices.

Safelite Fulfillment, Inc. was founded in 2004. The company's line
of business includes the retail sale of paint, glass, and
wallpaper.[BN]

The Defendant is represented by:

          John M. Simon, Esq.
          STONEMAN, CHANDLER & MILLER LLP
          99 High Street
          Boston, MA 02110
          Telephone: (617) 542-6789
          Facsimile: (617) 340-8587
          E-mail: jsimon@scmllp.com

               - and -

          Daniel J. Clark, Esq.
          VORYS, SATER, SEYMOUR AND PEASE LLP
          52 East Gay Street, P.O. Box 1008
          Columbus, OH 43216-1008
          Telephone: (614) 464-6436
          E-mail: djclark@vorys.com

SHOOT STRAIGHT: Santana Sues Over Unsolicited Text Messages
-----------------------------------------------------------
CRISTHOFFER DIAZ SANTANA, individually and on behalf of all others
similarly situated, Plaintiff v. SHOOT STRAIGHT, INC., Defendant,
Case No. CACE-23-000594 (Fla. Cir., 17th Judicial, Broward Cty.,
January 16, 2023) is a putative class action against the Defendant
brought pursuant to the Florida Telephone Solicitation Act.

According to the complaint, the Defendant engages in unsolicited
text message marketing to promote its goods and services to those
who have not provided Defendant with their prior express written
consent as required by the FTSA. The Defendant's telephonic sales
calls have caused Plaintiff and the Class members harm, including
violations of their statutory rights, statutory damages, annoyance,
nuisance, trespass, and invasion of their privacy. Additionally,
Defendant's unwanted text messages have taken up memory space on
Plaintiff's and the class members' devices, says the suit.

Through this action, Plaintiff seeks an injunction and statutory
damages on his behalf and on behalf of the Class members, and any
other available legal or equitable remedies resulting from the
unlawful actions of Defendant, the suit asserts.

Shoot Straight, Inc. is a gun shop based in Florida.[BN]

The Plaintiff is represented by:

          Manuel S. Hiraldo, Esq.
          HIRALDO P.A.
          401 E. Las Olas Boulevard Suite 1400
          Ft. Lauderdale, FL 33301
          Telephone: (954) 400-4713
          E-mail: mhiraldo@hiraldolaw.com

               - and -

          Jibrael S. Hindi, Esq.
          THE LAW OFFICES OF JIBRAEL S. HINDI
          110 SE 6th Street Suite 1744
          Ft. Lauderdale, FL 33301

SILVERGATE CAPITAL: IUOE Sues Over Exchange Act Violation
---------------------------------------------------------
International Union of Operating Engineers, Local No. 793, Members
Pension Benefit Trust Of Ontario, on behalf of itself and all
others similarly situated v. SILVERGATE CAPITAL CORPORATION, ALAN
J. LANE, ANTONIO MARTINO, KATHLEEN M. FRAHER, BENJAMIN C. REYNOLDS,
DENNIS S. FRANK, MICHAEL LEMPRES, KAREN F. BRASSFIELD, ROBERT C.
CAMPBELL, PAUL D. COLUCCI, THOMAS C. DIRCKS, SCOTT REED, COLLEEN
SULLIVAN, AANCHAL GUPTA, GOLDMAN SACHS & CO. LLC, KEEFE, BRUYETTE &
WOODS, INC., CANACCORD GENUITY LLC, COMPASS POINT RESEARCH &
TRADING, LLC, CRAIG-HALLUM CAPITAL GROUP LLC, J.P. MORGAN
SECURITIES LLC, and WEDBUSH SECURITIES LLC, Case No.
3:23-cv-00099-RSH-DEB (S.D. Cal., Jan. 19, 2023), is brought on
behalf of all persons or entities that purchased or otherwise
acquired: (a) Silvergate Class A Common stock between November 11,
2020 and January 5, 2022, inclusive (the "Class Period"); (b)
Silvergate Class A common stock pursuant and/or traceable to the
Company's secondary public offering ("SPO") conducted on or around
January 20, 2021 (the
"January SPO"); and/or (c) Silvergate Class A common stock pursuant
and/or traceable to the Company's SPO conducted on or around
December 6, 2021 (the "December SPO," and together with the January
SPO, the "Offerings"), arising under the Securities Act of 1933
(the "Securities Act"), and the Securities Exchange Act of 1934
(the "Exchange Act") and Rule 10b-5, promulgated thereunder.

Through Silvergate Bank, Silvergate functions as a depository, and
recently a lender, for all major cryptocurrency platforms,
including some of the more prominent exchanges such as Coinbase,
Genesis, and, until recently, FTX. As a federally regulated banking
institution, Silvergate is subject to a wide variety of federal
regulations, including anti-terrorism and anti-money laundering
("AML") legislation by the Office of Foreign Assets Control
("OFAC") and the Financial Crimes Enforcement Network ("FinCen"),
including the Bank Secrecy Act ("BAS") and the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act ("USA Patriot Act") of 2001.
Among other things, those statutes impose requirements on regulated
banks to establish Know Your Customer ("KYC") collection protocols,
file reports for customer deposits or withdrawals, and create a
protocol for suspicious activity that might indicate money
laundering or other illegal activity.

Throughout the Class Period, Silvergate repeatedly touted its
"strong regulatory compliance program"--including its anti-money
laundering policies and KYC procedures--as a foundation for its
growth. In connection with both the January SPO and the December
SPO, Silvergate stated that it: maintained a robust compliance
framework; was in compliance with all material aspects of
applicable laws and legislation; had established appropriate AML
and KYC compliance programs; and was prepared to accommodate
deposit inflows and outflows and as such maintained a highly liquid
balance sheet. Silvergate also repeatedly represented that its
"vision and advanced approach to compliance" was a foundation for
its growth and offered a competitive edge against other
institutions who wished to enter the cryptocurrency banking market.
As a result of these misrepresentations, shares of Silvergate stock
traded at artificially inflated prices throughout the Class
Period.

The truth began to emerge on November 7, 2022, after the market
closed, when Silvergate announced the sudden and unexplained
demotion of its Chief Risk Officer, Tyler Pearson—the son-in-law
of CEO Alan J. Lane. The Company replaced Pearson with Kathleen
Fraher, who was then serving as Chief Operating Officer. Social
media commenters noted Silvergate's exposure to FTX and Alameda
Research LLC ("Alameda") and questioned whether Pearson's demotion
indicated a lack of adequate oversight of Silvergate's regulatory
compliance. In response to this news, the price of Silvergate stock
declined by $11.54 per share, or 22.6%, from a closing price of
$50.96 per share on November 7, 2022, to a closing price of $39.42
per share on November 8, 2022, on unusually high trading volume.

Over the ensuing months, additional disclosures regarding the
Company's lax compliance practices reached investors, further
impacting the price of Silvergate stock. Then, on January 5, 2023,
the Company disclosed that the collapse of FTX had led to a run on
Silvergate Bank, causing its deposits to decline by $8.1 billion,
or over 68%, over the three months ending in December 2022. This
led to an acute liquidity crunch, which forced Silvergate to sell
off illiquid securities for a loss of over $700 million and to
borrow $4.3 billion in short-term advances from Federal Home Loan
Banks. In response to this news, the price of Silvergate stock
declined by $9.38 per share, or 42.7%, from a closing price of
$21.95 per share on January 4, 2023 to a closing price of $12.57
per share on January 5, 2023, on unusually high trading volume.

All told, disclosures of Silvergate's deficient compliance
procedures and protocols caused the Company's stock price to
decline from $50.96 per share on November 7, 2022, to just $12.57
per share on January 5, 2023. As a result of Defendants' actions,
the Plaintiff and other Class members have suffered significant
losses and damages, says the complaint.

The Plaintiff International Union of Operating Engineers, Local No.
793, Members Pension Benefit Trust of Ontario is a Canadian
Registered Pension Plan that provides retirement benefits to crane
and heavy equipment operators, other skilled workers, and their
families.

Silvergate is a holding company for the U.S. federal and state
chartered subsidiary bank, Silvergate Bank.[BN]

The Plaintiff is represented by:

          Jonathan D. Uslaner, Esq.
          BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
          2121 Avenue of the Stars, Suite 2575
          Los Angeles, CA 90067
          Phone: (310) 819-3470
          Email: jonathanu@blbglaw.com


SMARTMATCH INSURANCE: Howell Sues Over Unwanted Telemarketing
-------------------------------------------------------------
Velma Juanita Howell, individually, and on behalf of all others
similarly situated v. SMARTMATCH INSURANCE AGENCY, LLC, Case No.
4:23-cv-00040-BCW (W.D. Mo., Jan. 18, 2023), is brought under the
Telephone Consumer Protection Act ("TCPA") as a result of the
Defendant's unwanted telemarketing phone calls.

The Defendant engaged in improper and deceptive telemarketing
practices by placing improper and unwanted telemarketing calls to
Plaintiff and the putative class members, whose numbers were
registered on the National Do-Not-Call Registry. More specifically,
the Defendant purportedly obtained the Plaintiff and the putative
class members' phone numbers through the ruse of an employment
website, "simplyjobs.com", where Plaintiff and others purportedly
entered their personal data in furtherance of finding employment.
Rather than providing information about job openings, the Defendant
instead inundated consumers with telemarketing calls for the
purpose of selling insurance policies.

Moreover, the Defendant's purported consent was invalid as the
Defendant was not a party to any purported consent to place calls
to the Plaintiff and the putative class members. Using deceptive
methods to obtain consumer data is the diametric opposite of the
"clear and conspicuous" disclosure telemarketers are prescribed by
the FCC to provide to consumers in order to obtain express written
consent. Accordingly, the Defendant cannot prevail on its
affirmative defense of consent for the telemarketing calls made to
the Plaintiff and other persons whose phone numbers were registered
on the Do-Not-Call registry, says the complaint.

The Plaintiff is a citizen and resident of the State of Florida.

SmartMatch is a telemarketer that sells inter alia, Medicare
insurance plans.[BN]

The Plaintiff is represented by:

          Christopher E. Roberts, Esq.
          BUTSCH ROBERTS & ASSOCIATES LLC
          231 S. Bemiston Avenue, Suite 260
          Clayton, MO 63105
          Phone: (314) 863-5700
          Fax: (314) 863-5711
          Email: croberts@butschroberts.com


SOHO MASONS: Minchala Sues to Recover Unpaid Wages and Overtime
---------------------------------------------------------------
Jaime Minchala and Enrique Perez, on behalf of themselves and
others similarly situated v. SOHO MASONS CORP., d/b/a SOHO MASONS,
JOHN NEVLA, and VICTOR ROTTENBERG, Case No. 1:23-cv-00432
(S.D.N.Y., Jan. 18, 2023), is brought pursuant to the Fair Labor
Standards Act and the New York Labor Law to recover from
Defendants: unpaid overtime premiums, unpaid wages, including
overtime wages, due to time shaving, unpaid call-in pay, liquidated
damages, and attorneys' fees and costs.

Throughout their employment, the Plaintiffs were not compensated
with their overtime premiums for working hours in excess of 40 due
to the fixed salary. However, there was never any agreement between
the Plaintiffs and the Defendants that this fixed salary would
cover his overtime premiums for hours worked in excess of 40.
Approximately once per week, the Defendants would require the
Plaintiffs to stay 30 minutes past their scheduled shift, without
any extra pay.

The Defendants knowingly and willfully operated their business with
a policy of not paying Plaintiff, FLSA Collective the Plaintiffs
and Class members their proper overtime due to an improper fixed
salary. The Defendants knowingly and willfully operated their
business with a policy of not paying the Plaintiff, FLSA Collective
the Plaintiffs and Class members for all hours worked due to the
Defendants' policy of time-shaving. The Defendants knowingly and
willfully operated their business with a policy of not providing
call in pay premiums to the Plaintiff and Class members, when sent
home early despite being scheduled to work, in violation of the
NYLL, says the complaint.

The Plaintiffs were hired by the Defendants as general laborers to
work on various construction sites.

SOHO MASONS CORP. is a business specializing in brick and block
work.[BN]

The Plaintiff is represented by:

          C.K. Lee, Esq.
          Anne Seelig, Esq.
          LEE LITIGATION GROUP, PLLC
          148 West 24th Street, Eighth Floor
          New York, NY 10011
          Phone: (212) 465-1188
          Fax: (212) 465-1181


SOUTHERN CALIFORNIA: Denial of Class Certification in Cessna Upheld
-------------------------------------------------------------------
In the case, JEFFREY CESSNA, Plaintiff and Appellant v. SOUTHERN
CALIFORNIA EDISON COMPANY, Defendant and Respondent, Case Nos.
B310739, B312299 (Cal. App.), the Court of Appeals of California
for the Second District, Division Two, affirms the trial court's
order denying Cessna's motion for class certification and motion to
approve a representative action.

Cessna sued his employer, Defendant and Respondent SCE, claiming
numerous wage and hour violations arising from SCE's alleged
misclassification of Cessna and similarly situated employees as
exempt. He then sought to expand his lawsuit, filing a motion for
class certification and a motion to approve a representative action
pursuant to the Private Attorneys General Act of 2004 (PAGA) (Lab.
Code, Section 2698 et seq.).

SCE is a regional utility company that distributes electrical power
throughout southern California. Cessna works in SCE's Distribution
Business Line department (DBL), which oversees the design,
construction, and maintenance of SCE's electricity distribution
system.

DBL is divided into 35 district offices, each of which is
responsible for a different geographic area in SCE's service
network. Each office has several employees tasked with planning and
implementing electrical plans for new developments. Among these are
Planner Specialists (planners) and Planner Senior Specialists
(senior planners), who both report to a Planning Supervisor.

Cessna worked in DBL as a planner for 17 years. After completing a
two-year training program, he was promoted to be a senior planner,
in which capacity he has worked for the last 12 years.

A senior planner designs and implements electrical plans for new
construction projects, ensuring that a new building or
development's electrical infrastructure is safe, up to code, and is
compatible with SCE's existing power distribution system. Each
senior planner is assigned to a city or group of cities within his
or her respective district office. The senior planner is then
responsible for all large construction sites, particularly new
commercial developments, within their assigned area.

In January 2018, Cessna sued SCE, seeking civil penalties under
PAGA for alleged wage and hour violations stemming from SCE's
misclassification of senior planners as exempt. Four months later,
he filed a first amended complaint, adding specific claims for
various wage and hour violations including minimum wage violations,
failure to pay overtime, failure to authorize rest periods, and
failure to provide accurate wage statements. In March 2020, Cessna
filed the operative second amended complaint, adding a claim for
denied meal periods.

Along with the operative complaint, Cessna also filed a motion for
class certification, requesting class adjudication of all causes of
action except his PAGA claim. SCE opposed the motion.

Cessna's motion included evidence to support his argument that the
senior planners constitute a viable class. He argued that this body
of evidence not only supported his argument that senior planners
should be classified as nonexempt, but also demonstrated that the
senior planners' work circumstances were similar enough that the
question of their classification should be decided through a class
action.

SCE also proffered evidence to support their opposition to class
certification. It submitted declarations from 21 senior planners,
including some of Cessna's declarants who recharacterized their
initial declarations. SCE claimed that a senior planner's work went
far beyond rote application of the design manual, as senior
planners must synthesize many different sets of guidelines and
manuals to come up with electrical plans that will work for
specific sites. Additionally, it provided the official job
description for senior planners. SCE argued that this evidence,
taken together with Cessna's contradictory evidence, showed that
the senior planners' work was too varied and individualized for the
question of exemption to be suitable for class resolution.

On Nov. 24, 2020, after reviewing the parties' conflicting
declarations regarding the senior planners' job requirements and
actual tasks performed, the trial court issued an order denying
Cessna's motion for class certification. It concluded that class
certification was not appropriate because individual issues
predominate" the question of the senior planners' exemption.

Two months later, Cessna filed a motion asking the trial court to
approve his plan to proceed with his PAGA claim on behalf of all
senior planners, along with a trial plan that was functionally
identical to his motion for class certification. SCE opposed the
motion, and filed its own motion asking the trial court to strike
Cessna's PAGA claim.

The matter proceeded to a hearing on April 12, 2021. After hearing
oral arguments, the trial court rejected Cessna's PAGA trial plan
and struck his PAGA claim. Consistent with its order regarding
class certification, the trial court found that proof of the PAGA
claim would be unmanageable because it could not be done with
statistical or survey evidence, but only with detailed inquiries
about individual employees' circumstances. Accordingly, the trial
court found it appropriate to strike the PAGA claim as
unmanageable.

Cessna timely appealed, filing separate notices of appeal from the
order denying class certification and the order denying his motion
to approve a PAGA trial plan and granting SCE's cross-motion to
strike his PAGA claim. The Court of Appeals granted the parties'
joint motion to consolid ate the two appeals.

Cessna appeals from two rulings: the denial of his motion for class
certification and the denial of his motion to approve a
representative PAGA trial plan. The crux of both appeals is whether
the substantive question framed by Cessna's suit -- namely, whether
SCE misclassified senior planners as exempt -- is suitable for
resolution through class or representative adjudication.

First, the Court of Appeals opines that the record establishes that
the trial court had sufficient evidence to make its finding that
evaluation of whether the elements of the administrative exemption
-- including whether the senior planners performed work directly
related to management policies or general business operations --
have been established requires a fact intensive inquiry.

Next, the Court of Appeals further opines that given its
deferential standard of review, it cannot reverse the trial court's
ruling merely because a different interpretation of the record
could yield a different result. Cessna also cites no legal
authority requiring trial courts to make such a detailed
accounting.

Finally, the Court of Appeals holds that the trial court was
justified in concluding that Cessna's PAGA claims would prove
unmanageable to litigate. It opines that the same problems that
render Cessna's suit unmanageable for class action purposes may
also be considered in determining the feasibility of his PAGA
claim. The trial court also appropriately concluded that Cessna's
class action plan was riddled with manageability concerns, as
individual issues predominated the central questions of his claims
for wage and hour violations. The same conclusion holds true for
Cessna's substantially similar PAGA claim.

For these reasons, the trial court's orders are affirmed. SCE is
entitled to its costs on appeal.

A full-text copy of the Court's Jan. 17, 2023 Opinion is available
at https://tinyurl.com/3pdszth2 from Leagle.com.

Boyamian Law, Inc., Michael H. Boyamian , Armand R. Kizirian ; Law
Offices of Thomas W. Falvey, Thomas W. Falvey -- Tom@FalveyLaw.com;
Hogie & Campbell Lawyers, Inc., Stephen W. Hogie and Paul A.
Campbell, for the Plaintiff and Appellant.

Littler Mendelson, Robert S. Blumberg -- rblumberg@littler.com --
Demery Ryan -- dryan@littler.co -- Janel R. Ablon --
jablon@littler.com -- and Jennifer A. Goldberg --
jagoldberg@littler.com -- for the Defendant and Respondent.


STATEWIDE COLLECTION: McKee Files FDCPA Suit in W.D. North Carolina
-------------------------------------------------------------------
A class action lawsuit has been filed against Statewide Collection
Service, Inc. The case is styled as Kathleen McKee a/k/a Kathleen
Albright as parent and legal guardian of H.A., a minor,
individually and on behalf of all others similarly situated v.
Statewide Collection Service, Inc., Case No. 3:23-cv-00034
(W.D.N.C., Jan. 19, 2023).

The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.

Statewide Collection Service -- https://statewidecollection.com/ --
is a collection agency located in Salisbury, North California.[BN]

The Plaintiff is represented by:

          C. Randolph Emory, Esq.
          THE EMORY LAW FIRM, P.C.
          11020 David Taylor Drive, Suite 102
          Charlotte, NC 28262
          Phone: (704) 371-4333
          Fax: (704) 371-3015
          Email: emorylawecf@gmail.com


SUN VALLEY: ArentFox Schiff Attorneys Discuss Ruling in Labor Suit
------------------------------------------------------------------
Robert Carrol, Esq., and Noah Woo, Esq., of ArentFox Schiff, in an
article for JDSupra, disclosed that Labor and Employment class
actions involving contractors are on the rise in California,
especially in its $50-plus billion per annum agricultural industry
-- 12.5% of all agricultural production nationwide. Employers using
seasonal workers are always at risk of wage/hour class action
lawsuits, including those hired through a third-party agency or
labor contractor.

A salient example of such a class action was one recently concluded
by ArentFox Schiff in Humboldt County Superior Court. After more
than five years of extensive litigation on behalf of Sun Valley
Group, the law firm successfully defeated class certification and
secured a dismissal. This Year-in-Review provides guidance on how a
state court may -- correctly -- rule on a class certification
motion involving contractors and potential defenses and legal
arguments that could be applied to overcome class certification.

Who Were the Parties To This Class Action?
Sun Valley is the largest fresh flower growing operation in
California that utilizes seasonal laborers to grow high-quality and
fresh flowers, particularly tulips. During holiday seasons, the
demand for Sun Valley's flowers is at an all-time high. To meet
demand, Sun Valley works with labor contractors to provide several
hundred seasonal workers to assist its own, directly hired
employees. At all times in this litigation, Sun Valley did not
directly control or supervise any of the seasonal workers directly
employed and supervised by the farm labor contractor. As a result,
the workforce at Sun Valley comprised a mix of seasonal workers
directly supplied by a farm labor contractor working side-by-side
with those directly employed by Sun Valley. The two originally
named plaintiffs in this case were employed by a farm labor
contractor, and the third plaintiff who was later added to the case
was a direct employee of Sun Valley. The defendants were Sun Valley
and the labor contractor who employed the two original named
plaintiffs.

What Were The Claims Against Sun Valley And The Labor Contractor?
The plaintiffs alleged general wage and hour claims against both
Sun Valley and the labor contractor, including inter alia, causes
of action for failure to pay all wages for off-the-clock work,
failure to provide second meal breaks, failure to pay overtime
wages at the appropriate legal rate, failure to provide accurate
itemized wage statements, waiting time penalties, declaratory
relief, and unfair business practices. The plaintiffs sought to
represent all seasonal workers, including pickers, planters,
bunchers, leaf tippers, wet packers, crate dumpers, forklift
drivers, drivers, and packaging and shipping strappers that were
employed by the farm labor contractor and Sun Valley in the State
of California.

What Was Argued To The Court To Defeat Class Certification?
To defeat class certification, the following arguments were made:

1. Overbroad Proposed Class. First, despite only seeking to
represent seasonal workers in the operative complaint, plaintiffs
did not limit class certification to what was defined in the
complaint and sought to represent all hourly employees of Sun
Valley and the labor contractor. It was argued that because the
proposed class was beyond the complaint's scope, the court could
not certify a class.

2. Failure to Adequately Address Joint Employment Liability.
Second, despite the fact that two of the plaintiffs worked directly
for the farm labor contractor and the third plaintiff, added later,
was directly employed by Sun Valley, plaintiffs improperly lumped
every worker together without distinguishing Sun Valley from the
farm labor contractor. Additionally, Sun Valley argued that
plaintiffs did not adequately establish whether Sun Valley was an
actual joint employer and there was a lack of evidence that Sun
Valley (1) controlled wages, hours, or working conditions of the
seasonal workers that were employed by the farm labor contractor,
(2) suffered or permitted individuals from the farm labor
contractor to work for it, or (3) acted to engage, and thus created
a common law employment relationship.

3. Common Questions of Law and Fact Did Not Predominate. Third, Sun
Valley argued that plaintiffs did not demonstrate or proffer any
evidence to establish the existence of common questions of law and
fact existed. Significantly, and in direct contravention of the
allegations contained in the operative complaint, both current and
former employees of Sun Valley and the farm labor contractor
confirmed that they received their breaks. Moreover, and again in
opposition to the allegations, employees of both Sun Valley and the
labor contractor testified that they always clocked-in before doing
any work and clocked-out only after finishing all work, thereby
demonstrating that individual inquiries would have to be made to
determine whether the putative class members actually performed
off-the-clock work or not. Finally, even the named plaintiffs
testified inconsistently at their depositions on these issues, as
well as the amount of time they needed to perform tasks. For all of
these reasons, defendants vigorously argued that the lack of
commonality completely precluded class certification.

4. Plaintiffs Claims Were Not Typical and They Were Inadequate
Class Representatives. Finally, the defendants argued that the
plaintiffs' claims lacked typicality and that they were inadequate
representatives of the putative class. Indeed, because the
plaintiffs could not provide any information regarding any of the
alleged wage violations and/or had limited knowledge regarding the
identity of their direct employer, defendants argued that class
certification should be denied.

The court ultimately agreed with Sun Valley that, because
plaintiffs had significant differences and inconsistencies within
their own allegations, they lacked a sufficient community of
interests, and the plaintiffs' Motion to Certify Class should be
denied in its entirety.

Practical Advice for Employers Utilizing the Services of Labor
Contractors.
Based on the outcome of the Sun Valley wage/hour class action,
there are few practical tips that employers using the services of
labor contractors could implement in order to mitigate exposure to
or successfully oppose a class action lawsuit. First, when hiring
labor contractors to provide seasonal workers, it is important to
have language in the pertinent contracts specifically requiring
those "suppliers of labor" to comply with this state's rigorous
wage and hour statutory obligations. Safeguards and preventative
measures in this area should include, but are not limited to,
specific language requiring the contractor to: (1) indemnify and
hold the employer harmless for wage/hour violations committed by
the contractor; (2) require the contractor to be solely responsible
for training its own employees or subcontractors; and (3) require
the contractor to administer its employment/HR policies, maintain
personnel records and files, pay all wages and benefits, and
maintain insurance coverage, I-9 policies, and withhold taxes for
its own employees. The agreement should also require the labor
contractor to direct and control its own employees, including
setting schedules, imposing discipline and termination, and
directing the day-to-day activities of its own employees.

Indeed, if all of these issues or items are appropriately addressed
in the agreement with the labor contractor, employers will mitigate
joint employer liability should the labor contractor face
allegations of non-compliance with California's rigorous statutory
wage/hour requirements. Finally, the employer could also train and
regularly supplement the training of its own managers to ensure
that they are not inadvertently creating joint employer liability
by implementing and strictly observing procedures whereby the
managers of the employer are handling employment/HR issues on
behalf of the labor contractor. [GN]

TARGET CORP: 8th Cir. Vacates Remand of Leflar Suit to State Court
------------------------------------------------------------------
In the lawsuit captioned Robert B. Leflar, Plaintiff-Appellee v.
Target Corporation, Defendant-Appellant, Case No. 22-3468 (8th
Cir.), the United States Court of Appeals for the Eighth Circuit
vacates the district court's remand order.

The district court remanded a consumer class action against Target
Corporation to Arkansas state court. Target complains that the
district court relied on a nonexistent anti-removal presumption and
ignored a relevant post-removal declaration. The Eighth Circuit
agrees, so it sends the case back for a second look.

Robert Leflar bought a laptop with a manufacturer's warranty from
Target. As someone who "cares about the substance of product
warranties," he was disappointed that he was unable to view the
written warranty until after checkout. Left without "pre-sale
access to product warranties," Leflar decided to sue.

Except Leflar did not do so just for his own benefit, says Circuit
Judge David R. Stras, writing for the Panel. He filed a class
action on behalf of all citizens of Arkansas, who purchased one or
more products from Target that cost over $15 and that were subject
to a written warranty. His theory was that Target violated the
Magnuson-Moss Warranty Act's Pre-Sale Availability Rule by refusing
to make the written warranties reasonably available, either by
posting them in "close proximity to" products or placing signs
nearby informing customers that they could access them upon
request. He sought only injunctive and declaratory relief.

Rather than remain in state court, Target filed a notice of removal
based on the jurisdictional thresholds in the Class Action Fairness
Act of 2005: minimal diversity, more than 100 class members, and
over $5 million in controversy. Leflar moved to remand on the
ground that the amount in controversy was nowhere near $5 million.
The district court agreed, so it remanded the case to state court.

Ordinarily, Judge Stras notes, the Court of Appeals has no
jurisdiction to review a remand order, citing Dart Cherokee Basin
Operating Co. v. Owens, 574 U.S. 81, 85-86 (2014). But Target filed
a timely request for permission to appeal, leaving the Panel with a
choice about whether to review it. Based on the "important" and
"recurring" issues it presents, which would otherwise "escape
meaningful appellate review," the Eighth Circuit decided to grant
the request.

Judge Stras finds that the district court applied the wrong legal
standard. In its view, it was "required to resolve all doubts about
federal jurisdiction in favor of remand." For "mine-run diversity
cases," Judge Stras says the Court of Appeals has cases suggesting
exactly that. But for nearly a decade, the law has been clear that
the same rule does not apply under the Class Action Fairness Act.

The reason is textual, Judge Stras explains. At the pleading stage,
28 U.S.C. Section 1446(a) requires only "a short and plain
statement of the grounds for removal." A "plausible allegation," in
other words, that the case meets the jurisdictional requirements.
Judge Stras points out that nowhere does the text mention an
anti-removal presumption, much less a requirement "to resolve all
doubts about federal jurisdiction in favor of remand." Instead,
district courts must "accept" the allegations in the notice if they
are "made in good faith."

The analysis is similar at the evidence-weighing stage, except the
removing party bears the burden to establish by a preponderance of
the evidence that the amount in controversy exceeds $5 million,
Judge Stras says. No anti-removal presumption applies. Instead, as
in any other case, a preponderance-of-the-evidence standard
involves a straight-up weighing of the evidence to determine which
side has the better of the argument.

Judge Stras opines that the nonexistent presumption may well have
played a pivotal role in the decision to remand. The district court
refused to acknowledge the possibility that Target's sales figures
for laptops, televisions, and other accessories might have been
enough to "plausibly allege" that the case is worth more than $5
million. And in weighing the evidence, it described Target's
compliance-cost estimates as unsupported and insufficient. Missing
here, in other words, was a level playing field, Judge Stras points
out.

The district court then compounded its error by focusing
exclusively on the two declarations that accompanied Target's
notice of removal, according to Judge Stras. One estimated that
Target sold about $1.58 million in laptops to Arkansas consumers
over the 5-year period covering its allegedly noncompliant conduct.
The other said it sold over $5 million in televisions and
accessories during the same timeframe. Neither convinced the Court
of Appeals that the amount in controversy exceeded $5 million.

Conspicuously absent, however, was any mention of the post-removal
declaration of Kelly Beckmann, Target's lead compliance consultant,
Judge Stras notes. She estimated that Target would have to spend
over $7.5 million if Leflar wins. The declaration even separated
the costs of compliance into individual categories like extra
signage, additional training, and the introduction of in-store
warranty-retrieval systems.

The district court's failure to consider the Beckmann declaration,
Target's central piece of evidence in opposing remand, "effectively
denied" the company the opportunity to establish its claim of
federal jurisdiction, Judge Stras opines. As explained, a notice of
removal does not need to be accompanied by evidence. Rather,
parties can supplement it through post-removal declarations and
other evidence. The test is simply whether the additional proof
sheds light on the situation [that] existed when the case was
removed. The Beckmann declaration does, so the district court
should have considered it, Judge Stras holds.

The Court of Appeals, accordingly, vacates the remand order and
returns the case to the district court for further consideration.

A full-text copy of the Court's Opinion dated Jan. 9, 2023, is
available at https://tinyurl.com/3w4v8zyp from Leagle.com.


TESLA INC: Class Action Trial Over Share Price Decline Begins
-------------------------------------------------------------
Michael Liedtke and The Associated Press report that while still
grappling with the fallout from a company he did take private,
beleaguered billionaire Elon Musk is now facing a trial over a
company he didn't.

Long before Musk purchased Twitter for $44 billion in October, he
had set his sights on Tesla, the electric automaker where he
continues to serve as CEO and from which he derives most of his
wealth and fame.

Musk claimed in a August 7, 2018 tweet that he had lined up the
financing to pay for a $72 billion buyout of Tesla, which he then
amplified with a follow-up statement that made a deal seem
imminent.

But the buyout never materialized and now Musk will have to explain
his actions under oath in a federal court in San Francisco. The
trial, which begins on Tuesday with jury selection, was triggered
by a class-action lawsuit on behalf of investors who owned Tesla
stock for a 10-day period in August 2018.

Musk's tweets back then fueled a rally in Tesla's stock price that
abruptly ended a week later, after it became apparent that he
didn't have the funding for a buyout after all. That resulted in
him scrapping his plan to take the automaker private, culminating
in a $40 million settlement with U.S. securities regulators that
also required him to step down as the company's chairman.

Musk has since contended he entered that settlement under duress
and maintained he believed he had locked up financial backing for a
Tesla buyout during meetings with representatives from Saudi
Arabia's Public Investment Fund.

The trial's outcome may hinge on the jury's interpretation of
Musk's motive for tweets that U.S. District Judge Edward Chen has
already decided were a falsehood.

Chen dealt Musk another setback on Friday, when he rejected Musk's
bid to transfer the trial to a federal court in Texas, where Tesla
moves its headquarters in 2021. Musk had argued that negative
coverage of his Twitter purchase had poisoned the jury pool in the
San Francisco Bay Area.

Musk's leadership of Twitter -- where he has gutted the staff and
alienated users and advertisers -- has proven unpopular among
Tesla's current stockholders, who are worried he has been devoting
less time steering the automaker at a time of intensifying
competition. Those concerns contributed to a 65% percent decline in
Tesla's stock last year that wiped out more than $700 billion in
shareholder wealth -- far more than the $14 billion swing in
fortune that occurred between the company's high and low stock
prices during the Aug. 7-17, 2018 period covered in the
class-action lawsuit.

The lawsuit is based on the premise that Tesla's shares wouldn't
have traded at such a wide range if Musk hadn't dangled the
prospect of buying the company for $420 per share. Tesla's stock
has split twice since then, making that $420 price worth $28 on
adjusted basis now. The shares closed at $122.40, down from its
November 2021 split-adjusted peak of $414.50.

After Musk dropped the idea of a Tesla buyout, the company overcame
a production problem, resulting in a rapid upturn in car sales that
caused its stock to soar and minted Musk as the world's richest
person until he bought Twitter. Musk dropped from the top spot on
the wealth list after the stock market's backlash to his handling
of Twitter.

The trial is likely to provide insights into Musk's management
style, given the witness list includes some of Tesla's current and
former top executives and board members, including luminaries such
as Larry Ellison, Oracle co-founder, as well as James Murdoch, the
son of media mogul Rupert Murdoch. The drama also may shed light on
Musk's relationship with his brother, Kimbal, who is also on the
list of potential witnesses who may be called during a trial
scheduled to continue through Feb. 1. [GN]

THINX INC: Agrees to Settle Class Lawsuit Over PFAS in Underwear
----------------------------------------------------------------
Rachel Treisman at npr.org reports that if you live in the U.S. and
bought Thinx underwear recently, you could soon be getting some
money back.

That's because the period panty brand has just settled a
class-action lawsuit alleging that its products - long marketed as
a safer, more sustainable approach to menstrual hygiene - contain
potentially harmful chemicals.

Plaintiffs say third-party testing on the underwear revealed the
presence of short chain per-and polyfluoroalkyl substances (PFAS),
human-made chemicals that are found in many consumer and industrial
products, do not easily break down and have been linked to adverse
health effects. And they're accusing the company of fraud and other
deceptive practices as a result.

"Through its uniform, widespread, nationwide advertising campaign,
[Thinx] has led consumers to believe that Thinx Underwear is a
safe, healthy and sustainable choice for women, and that it is free
of harmful chemicals," the complaint filed in May 2022 said. "In
reality, Thinx Underwear contains harmful chemicals . . . which are
a safety hazard to the female body and the environment."

Thinx denies those allegations, with a company spokesperson telling
NPR in an email that PFAS have never been part of its product
design and that it will continue to take measures to ensure the
chemicals are not added to its products.

"The litigation against Thinx has been resolved, the settlement is
not an admission of guilt or wrongdoing by Thinx, and we deny all
allegations made in the lawsuit," the spokesperson added.

The U.S. District Court for the Southern District of New York gave
the settlement its preliminary approval in December, more than two
years after the litigation began (this case combines two existing
lawsuits filed in Massachusetts and California).

Class members were notified of the settlement. As part of it, Thinx
has committed to paying up to $5 million to provide reimbursement
as well as making some changes to its marketing and production
processes.

Anyone who bought Thinx underwear between Nov. 12, 2016, and Nov.
28, 2022, can submit a claim online before mid-April to choose
between cash reimbursement for up to three pairs of purchased
underwear at $7 each or a voucher for 35% off a single purchase of
up to $150 (for a maximum discount of $52.50).

Thinx will also take steps to ensure that PFAS are not
intentionally added to its underwear at any stage of production and
adjust some of its marketing language, including disclosing the use
of antimicrobial treatments. It will also continue to have
suppliers of raw materials sign a code of conduct and agreement
attesting that PFAS are not being intentionally added to Thinx
underwear.

Erin Ruben, an attorney who represents several of the plaintiffs,
told NPR in a phone interview that she and her clients are pleased
with the terms of the settlement and happy that the case has
brought awareness to the issue of PFAS in consumer products.

"When consumers demand transparency related to these issues, I
think that businesses have no choice but to listen," Ruben added.
"And so it's my hope that as consumers become more aware of the
chemicals that are present in the products that they use every day,
that they use their voice to let businesses know that it's not
something that they want."

The lawsuit doesn't accuse the product of causing harm
Ruben stresses that the case is about the way Thinx marketed its
product, not the potential health effects of it.

"The plaintiffs in this case brought their claims because . . . the
presence of PFAS or other chemicals in the underwear would
influence their purchasing decision," she said. "This case is
centered on marketing concerns, and did not allege any claims
related to personal injury resulting from the product."

The lawsuit alleges that Thinx uses PFAS chemicals to "enhance the
performance of the underwear, including, but not limited to, its
'moisture-wicking' and 'leak-resisting' qualities."

It explains that the thousands of PFAS chemicals in existence are
all categorized either as "long-chain" or "short-chain," based on
whether they contain fewer or more than eight carbon atoms.

Long-chain chemicals - sometimes called "forever chemicals" - have
been known to cause negative health effects and have been phased
out of use in the U.S., the suit says, adding that short-chain
chemicals are being used as replacements in the apparel industry.

That's despite the fact that there are no long-term studies to show
whether they are any safer for consumers, and that there is even
some evidence of them posing similar health risks, it says. And the
use of PFAS also contradicts the company's own advertisements for
its products, the plaintiffs allege.

According to the complaint, Thinx said in multiple places on its
website that its underwear was rigorously tested and free of
harmful chemicals, even claiming that the chemical compounds used
in its anti-odor layer "stay on the surface of the underwear and
don't travel into your body."

Those claims were repeatedly disputed, however (and vanished from
its website around May 2021, according to the lawsuit).

In 2020, reporter Jessian Choy sent several pairs of Thinx
underwear to a University of Notre Dame laboratory, which found
high levels of fluorine and concluded that the underwear contained
PFAS. She detailed those findings in an article for Sierra (the
Sierra Club magazine).

Then-Thinx CEO Maria Molland released a statement after the
article's publication reiterating the company's strict testing
standards. Molland said the company had engaged a toxicologist to
review those findings, who confirmed there were "no detectable
long-chain PFAS chemicals" in the products (the lawsuit alleges
that statement misrepresented the testing and results, further
misleading customers).

Nicole Dickens, the plaintiff who first filed the New York
complaint, heard about reports of chemicals in Thinx underwear
around November 2020, court documents say. She stopped buying the
underwear and sought independent third-party testing, which found
"short-chain PFAS chemicals in Thinx underwear at material and
above trace amounts."

A growing body of research links PFAS exposure to health effects
PFAS have been used in consumer and industry products since the
1940s, appearing in things like nonstick cookware, water repellent
clothing, some firefighting foams and certain cosmetics.

People can be exposed to PFAS in a variety of ways, including by
drinking contaminated water and eating food that's either grown
near places that use PFAS or packaged in material that contains
them.

PFAS can get into soil, water and air during production and use,
and because those chemicals do not break down, they remain in the
environment.

"Because of their widespread use and their persistence in the
environment, PFAS are found in the blood of people and animals all
over the world and are present at low levels in a variety of food
products and in the environment. Some PFAS can build up in people
and animals with repeated exposure over time," the Centers for
Disease Control and Prevention says.

Scientists are still working to understand the exact effects of
PFAS exposure, but a growing body of evidence is linking it to
harmful health outcomes.

Studies suggest that high levels of certain PFAS may lead to
increased cholesterol levels, changes in liver enzymes, decreases
in infant birth weights, increased risk of high blood pressure in
pregnant people and increased risk of kidney or testicular cancer,
according to the CDC's Agency for Toxic Substances and Disease
Registry.

The CDC has also recognized that high levels of exposure may impact
the immune system by suppressing the antibody response to vaccines
- of particular concern during a global pandemic - and is working
to understand how exposure may affect illness from COVID-19.

If you've been exposed to PFAS and are concerned about your health,
the CDC suggests speaking to your doctor or taking a blood test,
but cautions that it's "unclear what the results mean in terms of
possible health effects."

What happens next?
This is the window of time where consumers can learn about the
settlement and decide whether they want to be a part of it, Ruben
explains.

They can either make a claim for reimbursement or exclude
themselves from the class, if they want to opt out of the
settlement and pursue their own individual case at a later time.

The advantage of joining a class-action settlement is that it
doesn't come at any cost to consumers - whereas someone looking to
litigate on an individual basis would have to retain an attorney
and go through that process again, Ruben says.

It's not clear how many members are in the class, though the May
complaint says "at least thousands" of people could be affected
nationwide.

Ruben says lawyers will find out just how many people have made
claims under the settlement sometime before the hearing for final
approval, which is scheduled for May 24.

Ruben is working on other cases related to PFAS in products and
thinks it will be a continued area of practice.

"I think that it's showing no signs of slowing down because . . .
consumers are expressing to us that they really do care about these
issues," she adds.[GN]

TOM'S OF MAINE: Daly Suit Removed to N.D. Ill.
----------------------------------------------
The case styled JOHN DALY, individually and on behalf of all others
similarly situated, Plaintiff v. TOM'S OF MAINE, INC. Defendant,
Case No. 2022CH11101, was removed from the Circuit Court of Cook
County, Illinois, to the United States District Court for the
Northern District of Illinois on January 13, 2023.

The Clerk of Court for the Northern District of Illinois assigned
Case No. 1:23-cv-00223 to the proceeding.

The Plaintiff alleges that he purchased a Tom's Antiplaque and
Whitening Peppermint toothpaste labeled, marketed, and sold as
natural on October 8, 2022. He asserts that he paid a "price
premium for a premium natural product, but instead received a
non-premium product with artificial ingredients." The complaint
asserts violations of the Illinois Consumer Fraud and Deceptive
Business Practices Act along with claims of common law fraud and
unjust enrichment.

Tom's of Maine, Inc. is a brand name and manufacturing company of
natural personal care products.[BN]

The Defendant is represented by:

          Hannah Y. Chanoine, Esq.
          Gerard A. Savaresse, Esq.
          O'MELVENY & MYERS LLP
          Times Square Tower 7 Times Square
          New York, NY 10036-6524
          Telephone: (212) 326-2128
          Facsimile: (212) 326-2061
          E-mail: hchanoine@omm.com
                  gsavaresse@omm.com

               - and -

          Carlos M. Lazatin, Esq.
          O'MELVENY & MYERS LLP
          400 South Hope Street
          Los Angeles, CA 90071-2899
          Telephone: (213) 430-6655  
          Facsimile: (213) 430-6407
          E-mail: clazatin@omm.com

               - and -

          John C. Gekas, Esq.
          Elizabeth Thompson, Esq.
          SAUL EWING LLP
          161 N. Clark Street, Suite 4200
          Chicago, IL 60601
          Telephone: (312) 876-7100
          E-mail: john.gekas@saul.com
                  elizabeth.thompson@saul.com

TRUE EAGLE: Parrilla Sues Over Unsolicited Telemarketing Calls
--------------------------------------------------------------
EDWIN PARRILLA, individually and on behalf of all others similarly
situated, Plaintiff v. TRUE EAGLE CAPITAL, LLC, Defendant, Case No.
CACE-23-000652 (Fla. Cir. Ct., 17th Jud. Cir., Broward Cty.,
January 17, 2023) is a class action against the Defendant for
violation of the Florida Telephone Solicitation Act.

The case arises from the Defendant's alleged practice of contacting
the cellular telephone numbers of the Plaintiff and similarly
situated consumers in an attempt to promote its services without
obtaining prior express written consent, thereby invading their
privacy.

True Eagle Capital, LLC is a financial company headquartered in
Albany, New York. [BN]

The Plaintiff is represented by:                
      
         Simeon Genadiev, Esq.
         THE G LAW GROUP
         429 Avenue, Suite 442
         Miami Beach, FL 33139
         Telephone: (305) 486-7468
         E-mail: sgenadiev@theglawgroup.com

                - and -

         Alexander J. Korolinsky, Esq.
         AJK LEGAL
         1560 Sawgrass Corp Pkwy., Suite 400
         Sunrise, FL 33323
         Telephone: (877) 448-8404
         E-mail: korolinsky@ajklegal.com

TWITTER INC: Named Plaintiffs in Cornet Suit Must Arbitrate Claims
------------------------------------------------------------------
In the case, EMMANUEL CORNET, et al., Plaintiffs v. TWITTER, INC.,
Defendant, Case No. 3:22-cv-06857-JD (N.D. Cal.), Judge James
Donato of the U.S. District Court for the Northern District of
California grants Twitter's motion for an order compelling the
individual claims of the named Plaintiffs to arbitration pursuant
to the parties' arbitration agreements and the Federal Arbitration
Act.

Named Plaintiffs Emmanuel Cornet, Justine De Caires, Grae Kindel,
Alexis Camacho, and Jessica Pan sued Twitter, on behalf of
themselves and a putative class of other Twitter employees,
alleging that recent layoffs by Twitter violated federal and state
laws. Twitter asks for an order compelling the individual claims of
these named Plaintiffs to arbitration pursuant to the parties'
arbitration agreements and the FAA. The Plaintiffs filed an
opposition.

The salient facts are undisputed. The Plaintiffs signed arbitration
agreements as part of their employment contracts with Twitter,
which date from September 2017 to April 2021. The agreements state
in bold that arbitration is not a mandatory condition of Employee's
employment at Twitter, and provided the Plaintiffs with an
opportunity to opt out. The Plaintiffs did not opt out.

Twitter has identified three versions of the agreements, but the
relevant provisions are materially the same. The arbitration
agreements all expressly state that they are governed by the FAA.
They cover disputes arising out of or related to the Plaintiffs'
employment with Twitter, including the termination of their
employment. Each agreement states that it applies to disputes
arising out of or relating to the interpretation or application of
this Agreement, including the enforceability, revocability or
validity of the Agreement or any portion of the Agreement. Each
agreement also contains a class action waiver, the validity and
enforceability of which can only be determined by a court of
competent jurisdiction and not by an arbitrator. The waiver
requires the parties to bring any dispute in arbitration on an
individual basis only, and not on a class, collective, or private
attorney general representative action basis.

The Plaintiffs' main objection is that the arbitration agreements
are unconscionable. They do not raise any contract formation
issues. Twitter provided signed copies of the agreements, and they
are all clear and straightforward. Because each arbitration
agreement has a delegation clause, the Plaintiffs must show that
the clause is invalid or otherwise does not encompass their
unconscionability claims in order to litigate in this forum.

Judge Donato holds that they have not done so. He says the
Plaintiffs relegated this threshold issue to a footnote, and say
only that the delegation clauses are not clear and unmistakable
because they do not actually state that questions of arbitrability
are delegated to the arbitrator.

The point is not well taken, Judge Donato observes. To start, he
says the delegation clauses in all three versions of the agreement
state quite clearly that disputes about the enforceability and
validity of the arbitration agreement are to be resolved only by an
arbitrator through final and binding arbitration. This is just the
kind of language which establishes that "the parties clearly and
unmistakably agreed to arbitrate the question of arbitrability.

The second and third versions of the agreement provide even more
support for delegation. In addition to the plain delegation
language, Judge Donato points out that these agreements expressly
provide that the parties agree to bring any claim in arbitration
before Judicial Arbitration and Mediation Services, pursuant to the
then-current JAMS Rules. JAMS procedures for employment arbitration
delegate gateway issues to the arbitrator, and so the second and
third versions have two independent grounds on which to delegate
the question of arbitrability to the arbitrator.

The only remaining issue here is the enforceability of the class
action waiver, which the parties reserved for the Court. The
Plaintiffs challenge only the portion of the waiver that precludes
them from bringing representative actions under the Private
Attorneys General Act of 2004.

Judge Donato finds that the grounds for this objection are unclear
because the operative complaint does not allege a PAGA claim. The
Plaintiffs made a passing reference to their anticipated PAGA
claims, but he can only address what is presently in the record. At
this time, the PAGA waiver has no bearing on going to arbitration.

For these reasons, Judge Donato holds that the claims of Plaintiffs
Cornet, De Caires, Kindel, Camacho, and Pan are ordered to
arbitration on an individual basis. The effect of his order on the
putative class in the second amended complaint will be taken up
later as warranted by developments in the case.

A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/4av2zxyh from Leagle.com.


UMASS MEMORIAL: Progin Wiretapping Suit Removed to D. Mass.
-----------------------------------------------------------
The case styled JANICE PROGIN, on behalf of herself and all others
similarly situated, Plaintiff v. UMASS MEMORIAL HEALTH CARE, INC.,
UMASS MEMORIAL HOSPITALS, INC., UMASS MEMORIAL MEDICAL CENTER,
INC., UMASS MEMORIAL HEALTHALLIANCE-CLINTON HOSPITAL, INC.,
MARLBOROUGH HOSPITAL, and HARRINGTON MEMORIAL HOSPITAL, INC.,
Defendants, Case No. 2284CV02899-BLS2, was removed from the
Superior Court of the Commonwealth of Massachusetts for the County
of Suffolk to the United States District Court for the District of
Massachusetts on January 17, 2023.

The Clerk of Court for the District of Massachusetts assigned Case
No. 1:23-cv-10113 to the proceeding.

The Plaintiff's Complaint purports to challenge UMass Memorial's
routine on-line practices, specifically "the interception of
communications that disclose healthcare consumers' private health
information," and illegal wiretapping.

The Plaintiff alleges she is a UMass Memorial patient who
"regularly uses the UMass Memorial Website to (i) obtain
information about UMass Memorial Medical Center doctors (including
their credentials and backgrounds); (ii) search for information on
particular symptoms, conditions, and medical procedures; and (iii)
obtain and review her personal medical records through the
website's patient portal."

UMass Memorial Health Care, Inc. is a Massachusetts nonprofit
charitable corporation that is the direct or indirect corporate
member of each of the entities that makes up the UMass Memorial
healthcare system.[BN]

The Defendants are represented by:

          Stephen T. Paterniti, Esq.
          JACKSON LEWIS P.C.
          75 Park Plaza, 4th Floor
          Boston, MA 02116
          Telephone: (617) 305-1221
          E-mail: Stephen.Paterniti@jacksonlewis.com

               - and -

          James H. Rollinson, Esq.
          BAKER & HOSTETLER LLP
          127 Public Street Suite 2000
          Cleveland, OH 44116
          Telephone: (216) 621-0200
          Facsimile: (216) 626-0740
          E-mail: jrollinson@bakerlaw.com

               - and -

          Paul G. Karlsgodt, Esq.
          BAKER & HOSTETLER LLP
          1801 California Street Suite 4400
          Denver, CO 80202-2662
          Telephone: (303) 764-4013
          Facsimile: (303) 861-7805
          E-mail: pkarlsgodt@bakerlaw.com

               - and -

          Elizabeth A. Scully, Esq.
          BAKER & HOSTETLER LLP
          Washington Square, Suite 1100
          1050 Connecticut Avenue, N.W.
          Washington, DC 20036-5304
          Telephone: (202) 861-1500
          Facsimile: (202) 861-1783
          E-mail: escully@bakerlaw.com

UNITED STATES: Court Orders Cheng to Effect Service on Defendant
----------------------------------------------------------------
In the lawsuit styled SHENG-WEN CHENG, Plaintiff v. UNITED STATES
OF AMERICA, Defendant, Case No. 22-CV-10536 (VSB) (S.D.N.Y.), Judge
Vernon S. Broderick of the U.S. District Court for the Southern
District of New York orders the Plaintiff to effect service on
Defendant United States.

Plaintiff Cheng, who is currently incarcerated at the Federal
Correctional Institution Sandstone, in Sandston, Minnesota, brings
this pro se action challenging a federal policy, which allegedly
bars federal prisoners with immigration detainers, who are awaiting
a final order of removal, to earn time credits under the First Step
Act ("FSA"). The Plaintiff challenges the constitutionality of this
policy, claiming it violates the Equal Protection Clause of the
Fifth Amendment, and he seeks relief under the Administrative
Procedure Act ("APA"), 5 U.S.C. Sections 702, 703. The Plaintiff
styles his submission as a class action lawsuit.

On Aug. 18, 2020, the Plaintiff was arrested on federal charges at
his apartment in Manhattan. Two days later, the Department of
Homeland Security, Immigration and Custom Enforcement ("ICE")
lodged an immigration detainer, based on the Plaintiff's
immigration status. On Aug. 19, 2021, a judgment of conviction was
filed in this Court, in which the Plaintiff was convicted of major
fraud against the United States, bank fraud, and security fraud; he
was sentenced to 72 months' incarceration (United States v. Cheng,
No. 21-CR-0261 (S.D.N.Y. Aug. 19, 2021)).

On Oct. 9, 2022, the Plaintiff received a "FSA Time Credit
Assessment," which indicated that he was not eligible to apply for
FSA time credits. As of the filing of this action, ICE has not
initiated removal proceedings.

Because the Plaintiff has been granted permission to proceed in
forma pauperis (IFP), Judge Broderick holds the Plaintiff is
entitled to rely on the Court and the U.S. Marshals Service to
effect service.

To allow the Plaintiff to effect service on Defendant United States
through the U.S. Marshals Service, the Clerk of Court is instructed
to fill out a U.S. Marshals Service Process Receipt and Return form
("USM-285 form") for this Defendant. The Clerk of Court is further
instructed to: (1) mark the box on the USM-285 form labeled "Check
for service on U.S.A."; and (2) issue a summons and deliver to the
Marshals Service a copy of this order and all other paperwork
necessary for the Marshals Service to effect service on the United
States.

If the complaint is not served within 90 days after the date the
summonses are issued, Judge Broderick holds the Plaintiff should
request an extension of time for service.

The Plaintiff must notify the Court in writing if his address
changes, and the Court may dismiss the action if he fails to do
so.

Judge Broderick instructs the Clerk of Court to issue a summons for
the United States, complete the USM-285 form with the address for
the Defendant, mark the box on the USM-285 form labeled "Check for
service on U.S.A.," and and deliver all documents necessary to
effect service to the U.S. Marshals Service.

The Clerk of Court is directed to mail an information package to
the Plaintiff.

A full-text copy of the Court's Order dated Jan. 9, 2023, is
available at https://tinyurl.com/567euhbb from Leagle.com.


UNITED STATES: Faces Class Action Suit Over Solitary Confinement
----------------------------------------------------------------
deathpenaltyinfo.org reports that a Russian national on the U.S.
federal death row has filed a civil rights lawsuit challenging the
constitutionality of the federal government's use of automatic and
prolonged solitary confinement to house individuals sentenced to
death.

The class action complaint, filed January 12, 2023 in the U.S.
District Court for the Southern District of Indiana on behalf of
Jurijus Kadamovas (pictured) and 37 other prisoners incarcerated on
death row in the United States Penitentiary in Terre Haute,
Indiana, alleges that the "severely isolating" and "unrelenting
solitary confinement" to which the prisoners are subjected falls
below the minimum standard prescribed by international human rights
treaties for the treatment of prisoners and violates the U.S.
constitutional prohibition against cruel and unusual punishment.

The lawsuit, authored by lawyers from the ACLU of Indiana and the
national law firm, Faegre Drinker Biddle & Reath LLP, states that
the prisoners on federal death row are automatically assigned to
incarceration in the "Special Confinement Unit" (SCU), where they
are held in "solitary conditions" in single cells 12 feet, 8 inches
deep by 7 feet wide - roughly the size of a parking space. "Each
cell contains a table and stool affixed to the floor, a metal
sink/toilet unit, and a shower," leaving even less space for
movement. Once assigned to the SCU, a federal death prisoner is
likely to be kept in solitary confinement "for decades."

"It is well known that prolonged isolation and solitary confinement
can cause, and predictably will cause, prisoners to suffer serious
emotional and psychological injuries," the complaint states. Bureau
of Prisons personnel are "fully aware of the isolated, dangerous,
and harmful conditions that exist in the SCU," the complaint
alleges, are "responsible for the conditions there, and allow[ ]
them to exist and continue."

The prisoners seek an injunction to end automatic solitary
confinement and require BOP to allow them "to be out of their cells
for multiple hours a day and to engage in congregate activities."
The complaint also seeks unspecified "individual damages" for the
harms experienced by the prisoners, plus attorneys' fees. Kadamovas
specifically claims to have suffered "physical, mental, and
emotional injuries and harm by the isolated, dangerous, and harmful
conditions that exist in the SCU."

The lawsuit asserts that "numerous international treaties and other
instruments outlaw the use of prolonged solitary confinement or
otherwise recognize its severe harm." The International Covenant on
Civil and Political Rights (ICCPR) - one of three treaties regarded
as the International Bill of Rights - prohibits subjecting
individuals "to torture or to cruel, inhuman, or degrading
treatment or punishment." A second international treaty, the United
Nations Standard Minimum Rules for the Treatment of Prisoners
(known as the "Nelson Mandela Rules") specifically prohibits
"indefinite" solitary confinement, "prolonged solitary confinement"
of more than 15 consecutive days, and the automatic placement in
solitary confinement "by virtue of a prisoner's sentence."

The lawsuit alleges that after the prisoners are sent to Terre
Haute to await their execution, they are automatically placed in
the SCU, where they are housed in small cells with tiny windows
that do not open and small slits to pass in food or other items.
"For all prisoners, this unrelenting solitary confinement will last
the entirety of their stay in the SCU - that is, for many of them,
until they die," the lawsuit states. They are not provided
out-of-cell programing and face near total confined within their
cells. Prisoners are afforded one daily hour of time in the law
library, by themselves, if it is otherwise unoccupied. They are
granted five hours a week of out-of-cell time for solitary exercise
in an outdoor cage or in an indoor "leisure" room, although this
out-of-cell time is frequently canceled for administrative reasons
and not rescheduled.

Death-row prisoners have no "contact visits" with outside visitors
and must be granted special "Phase II" status before they may share
recreation time with another prisoner. Even then, they are limited
to contact with one pre-assigned prisoner. "Aside from granting
some SCU prisoners Phase II status," the lawsuit says, "no attempt
is made by [BOP] to determine whether SCU prisoners pose a threat
to other prisoners that justifies their near-total isolation. SCU
prisoners are placed in these conditions solely because of their
placement in the SCU, and not because of their in-prison
behavior."

Most U.S. death-row prisoners have been housed in conditions that
violate international human rights norms. As of January 2021,
twelve U.S. states automatically placed capital prisoners in
prolonged, automatic solitary confinement based on their sentence,
irrespective of their in-prison behavior. A DPIC analysis found
that those twelve states housed 953 death-row prisoners, or 38.6%
of those on death rows nationwide at the end of 2020. At that time,
an additional 338 prisoners, or 13.7% of death row, were sentenced
to death in five states that, since 2017, had ended automatic
prolonged solitary confinement in response to prisoner lawsuits. In
March 2022, Florida also ended automatic prolonged solitary
confinement for prisoners on their state death rows. [GN]

UNIVERSITY OF NORTH CAROLINA: Dismissal of Dieckhaus Claims Upheld
------------------------------------------------------------------
In the case, DEENA DIECKHAUS, GINA McALLISTER, BRADY WAYNE ALLEN,
JACORIA STANLEY, NICHOLAS SPOONEY and VIVIAN HOOD, each
individually and on behalf of all others similarly situated,
Plaintiffs v. BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH
CAROLINA, Defendant, Case No. COA21-797 (N.C. App.), the Court of
Appeals of North Carolina affirms the order granting the
Defendant's Motion to Dismiss Plaintiffs' Amended Complaint and
dismissing all claims.

Plaintiffs Deena Dieckhaus, Gina McAllister, Brady Wayne Allen,
Jacoria Stanley, Nicholas Spooney, and Vivian Hood appeal an order
granting the Defendant's Motion to Dismiss. The Amended Complaint
included both contract and unjust enrichment claims.

The Defendant is the Board of Governors for the University of North
Carolina System, and that System includes 17 "constituent
institutions throughout the State" (collectively "Universities").
As a precondition for enrollment for the Spring 2020 Term, the
Defendant required students planning to attend the Universities to
pay tuition. When charging tuition, it charged students different
rates depending on which of two types of programs the students
chose, an in-person, hands-on program and a fully online
distance-learning program.

The Plaintiffs all paid tuition and enrolled in the in-person
program for the Spring 2020 Term, with one exception. Dieckhaus,
McAllister, Allen, Stanley, and Spooney all enrolled as
undergraduates in different Universities in the system. Hood paid
tuition to enroll her daughter at one of the Universities' campuses
for the Spring 2020 Term.

Beyond the tuition students paid to enroll, they paid additional
fees. The Defendant charged students, including the Plaintiffs,
certain mandatory student fees to cover the services, access,
benefits and programs for which the fees were described and billed.
The Plaintiffs paid all applicable fees for the Spring 2020 Term.
Finally, a certain subset of students, including McAllister,
Spooney, and Hood paid additional fees for the right to reside in
campus housing and for access to a meal plan providing for on
campus dining opportunities.

The Plaintiffs and other students started the Spring 2020 Term with
on-campus, in-person education and with access to the services for
which they paid student fees, housing fees, and on-campus meal
fees. On March 11, 2020, in response to the COVID-19 pandemic, the
Defendant issued a system-wide directive to all the Universities
requiring that they transition from in-person to online instruction
no later than March 23, 2020. As a result, starting on 23 March
2020 through the end of the Spring 2020 Term, there were no in
person classes at the Universities, and all instruction was
delivered online. Another directive from Defendant to all the
Universities on March 17, 2020 instructed students living in campus
housing to remain at or return to their permanent residences.

As a result of this directive, the Universities closed their on
campus residences and prevented student access to dining
facilities. The Defendant "announced" it would be offering
"pro-rated credits or refunds for students who pre-paid housing and
meal costs for the Spring 2020" Term -- and did offer some refunds
-- but it did not offer refunds for tuition or student fees.

Based on these alleged facts, the Plaintiffs filed their Amended
Complaint on Dec. 30, 2020. The Amended Complaint includes both
breach of contract claims and unjust enrichment claims seeking
refunds on a pro-rata basis" for tuition, housing, meals, and
student fees that the Defendant failed to deliver for the second
half of the Spring 2020 Term after shutting down the Universities'
campuses in response to COVID-19.

On Jan. 25, 2021, the Defendant filed a Motion to Dismiss the
Amended Complaint under Rules of Civil Procedure 12(b)(1),
12(b)(2), and 12(b)(6) based on five grounds. First, it argued the
Plaintiffs' claims were barred by N.C. Gen. Stat. Section 116-311,
which is part of Article 37 entitled "An Act to Provide Immunity
for Institutions of Higher Learning." Next, the Defendant contended
the Plaintiffs' claims were "barred by sovereign immunity."
According to the Defendant, the Plaintiffs also failed to state
claims for relief for breach of contract and unjust enrichment.
Then, it argued the Amended Complaint failed to allege damages were
proximately caused by it. Finally, the Defendant contended the
Plaintiffs lacked standing because they failed to allege a
sufficient injury and they purport to allege claims against
Universities with whom they had no relationship.

The trial court held a hearing on the Defendant's Motion to Dismiss
on 19 May 2021. On June 17, 2021, the trial court entered an order
granting Defendant's Motion to Dismiss without specifying the
grounds for that decision. On July 15, 2021, the Plaintiffs filed a
written notice of appeal from the order granting the Defendant's
Motion to Dismiss.

On appeal, the Plaintiffs argue the trial court erred in granting
the Defendant's Motion to Dismiss because the Plaintiffs adequately
plead claims for breach of a contract and unjust enrichment. As
part of this overarching argument, they make five contentions.
First, the Plaintiffs argue they stated a claim for breach of
contract. They also argue they stated a claim for unjust
enrichment. Third, the Plaintiffs assert the Defendant is not
entitled to sovereign immunity. Finally, they argue they have
standing on all claims.

The Court of Appeals examines the Plaintiffs' contentions as to why
the trial court erred in granting the Defendant's Motion to
Dismiss. It considers the immunity issues -- both sovereign
immunity and the potential statutory immunity of N.C. Gen. Stat.
Section 116-311 -- because of the special nature of immunity as
more than just a mere defense in a lawsuit in comparison to other
defenses raised under Rule of Civil Procedure 12. Within the two
types of immunity, the Court of Appeals examines sovereign immunity
first because the Plaintiffs raise constitutional issues around
statutory immunity and it is well settled that the courts of this
State will avoid constitutional questions, even if properly
presented, where a case may be resolved on other grounds.

Focusing on sovereign immunity first, the Plaintiffs argue the
Defendant is not entitled to sovereign immunity.

The Court of Appeals finds that the trial court did not err in
dismissing unjust enrichment claims. The Plaintiffs do not argue on
appeal the Defendant consented to suit or otherwise waived its
sovereign immunity. Under the Appellate Rules, the Plaintiffs have
therefore abandoned the issue of whether sovereign immunity was a
valid ground on which to dismiss their unjust enrichment claims.

Even if the Plaintiffs had argued sovereign immunity did not bar
their unjust enrichment claims, the Court of Appeals would reject
that argument. As the Court of Appeals recently reaffirmed in
Lannan v. Board of Governors of the University of North Carolina,
2022-NCCOA-653, Paragraphs 23, 29, contracts implied in law, which
are also called quasi contracts and which permit recovery based on
quantum meruit, do not waive sovereign immunity. Since the
Plaintiffs have provided no other reason the Defendant waived
sovereign immunity, their unjust enrichment claims are barred by
sovereign immunity.

Second, the Court of Appeals turns to the Plaintiffs' remaining
contract claims, the parties' arguments present two questions: (1)
whether a valid implied-in-fact contract can waive sovereign
immunity and (2) whether the Plaintiffs pled valid implied-in-fact
contracts. It finds that reviewing the Plaintiffs' contract claims
does not require an investigation into educational processes or
theories or a determination of whether the education was adequate.

At its heart, the Plaintiffs' tuition claim alleges they contracted
and paid for product A and received product B for part of the
Spring 2020 Term. Products A and B can represent anything in that
scenario, demonstrating that the claim does not rely on reviewing
educational processes or even on the educational setting itself.
Having rejected all the Defendant's arguments, the Court of Appeals
concludes after its de novo review that sovereign immunity does not
bar the Plaintiffs' contract claims, although it does bar their
unjust enrichment claims.

As the contract claims survive sovereign immunity, the Court of
Appeals next turns to statutory immunity. The Plaintiffs argue N.C.
Gen. Stat. Section 116-311, which provides immunity to claims for
tuition and fees for COVID-19 related university closures, is
unconstitutional and inapplicable to this action. Following the
doctrine of constitutional avoidance, the Court of Appeals first
considers whether Section 116-311 is applicable and then addresses
the constitutionality of the statute.

The Court of Appeals finds that since all the statutory
requirements are met, Section 116-311(a) applies to the Plaintiffs'
claims, both their contract claims and their unjust enrichment
claims. Thus, after de novo review and under the statute's plain
language, the Court of Appeals holds that the Defendant has
immunity from these claims.

The Court of Appeals further finds that the Plaintiffs make an
as-applied challenge to the immunity statute. Therefore, it rejects
the Defendant's argument the Plaintiffs have waived their
constitutional challenges to Section 116-311 and the statutory
immunity it provides against the Plaintiffs' claims.

Turning to the merits, the Court of Appeals is not convinced beyond
a reasonable doubt that Section 116-311 is unconstitutional.
Because it upholds the constitutionality of Section 116-311 against
all of the Plaintiffs' arguments and have already decided it
applies to the case, it now holds the Plaintiffs' claims are barred
by statutory immunity. This holding applies to bar the Plaintiffs'
contract claims that survive sovereign immunity, and it also
represents an alternative bar to the Plaintiffs' unjust enrichment
claims. Therefore, the trial court did not err in dismissing the
Plaintiffs' claims.

The Court of Appeals affirms the trial court's dismissal of the
Plaintiffs' claims. Sovereign immunity bars the Plaintiffs' unjust
enrichment claims, but it does not bar their contract claims
because they have pled valid implied-in-fact contracts. Statutory
immunity from N.C. Gen. Stat. Section 116-311 bars the Plaintiffs'
contract claims and, in the alternative, their unjust enrichment
claims, because the statute applies to their claims based on its
plain language and meaning and is constitutional.

A full-text copy of the Court's Jan. 17, 2023 Order is available at
https://tinyurl.com/5eab5r53 from Leagle.com.

Anastopoulo Law Firm, LLC, by Blake G. Abbott, for the
Plaintiffs-Appellants.

Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by Jim W.
Phillips, Jr. -- jphillips@brookspierce.com -- and Jennifer K. Van
Zant -- jvanzant@brookspierce.com -- and Attorney General Joshua H.
Stein , by Special Deputy Attorneys General Laura McHenry and Kari
R. Johnson, for the Defendant-Appellee.


VALLEY, AL: Mother Arrested Over Garbage Files Class Action Suit
----------------------------------------------------------------
Lee Hedgepeth at cbs42.com reports that an Alabama mother arrested
over a garbage bill has filed suit against the city that jailed
her.

Santori Little, a mother of three who now resides in Talladega
County, filed a class action lawsuit in federal court. The suit
against the City of Valley and AmWaste, the garbage company
contracted to provide residential trash pickup in the city, claims
that city officials took advantage of state law in an
unconstitutional racket to imprison its citizens over private debt.


The suit comes a day after CBS 42 was the first to report that
Little is one of dozens of former and current Valley residents who
have active warrants for their arrest over trash.

Little told CBS 42 she was forced to stay in jail over the weekend
because a judge wasn't immediately available. She was on her
period, she said, and was forced to remove her underwear because
they weren't white.

"I was in an orange jumpsuit with nothing on underneath," the
mother said. "It was traumatic."

Little's lawsuit, filed in federal court, argues that the law is
undeniably clear: citizens cannot be legally imprisoned over debt.


"In this country and state, we do not have debtors' prisons," the
complaint said. "Section 20 of the Alabama Constitution says quite
simply, 'That no person shall be imprisoned for debt.'"

The suit seeks to represent not just Little, but "all persons who
have been prosecuted criminally and either jailed or threatened
with jail for the failure to pay a garbage collection fee to the
City of Valley . . ."

"Defendants use the threat and intimidation of jail time to extort
money from Plaintiff and the Plaintiff class," the suit said.

Little's complaint asks the court to bar the city from imprisoning
or threatening to imprison others over unpaid garbage fees, to
award monetary damages to each person in her situation, and to
award reasonable attorney's costs.

Little is represented by multiple, notable lawyers in the state,
including former Alabama Attorney General Bill Baxley.

Allan Armstrong, another lead attorney on the case, said that the
scheme operated by Valley and AmWaste officials was beyond belief.

"To think you can jail folks over garbage fees is just crazy," he
told CBS 42.

Valley's practice of jailing its citizens first came into critical
focus last year after the controversial arrest of 82-year-old
Martha Menefield at her home in Valley for the same alleged
"crime." The city's police chief defended the arrest at the time,
saying his officers' treated Menefield respectfully.

Officials with Valley and AmWaste could not immediately be reached
for comment.

You can read more of CBS 42's original reporting on Valley, Martha
Menefield, and Santori Little below. [GN]

VETERANS AFFAIRS: Bid for Rehearing En Banc in Skaar Suit Denied
----------------------------------------------------------------
In the case, VICTOR B. SKAAR, Claimant-Cross-Appellant v. DENIS
McDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellant,
Case Nos. 2021-1757, 2021-1812 (Fed. Cir.), the U.S. Court of
Appeals for the Federal Circuit denies Skaar's petitions for panel
rehearing and for rehearing en banc.

Mr. Skaar filed a combined petition for panel rehearing and
rehearing en banc. A response to the petition was invited by the
Federal Court and filed by McDonough. The petition was referred to
the panel that heard the appeal, and thereafter the petition for
rehearing en banc was referred to the circuit judges who are in
regular active service. The Federal Circuit conducted a poll on
request, and the poll failed.

Upon consideration thereof, the petitions for panel rehearing and
for rehearing en banc are denied.

Circuit Judges Timothy B. Dyk, Jimmie V. Reyna, Kara F. Stoll,
Tiffany P. Cunningham and Leonard P. Stark dissent. They say for
many years the system for processing veterans' claims has been
inefficient and subject to substantial delays to the disadvantage
of the nation's veterans. The Department of Veterans Affairs ("VA")
currently has over 685,000 pending disability compensation and
pension claims. This backlog causes significant delays in
adjudicating claims.

The decision in the present case will effectively eliminate class
actions in the veterans' context by limiting the class to those who
have already appealed and those who have secured a Board decision
and can (indeed must) file appeals with the Veterans Court within
120 days, a step that would make them named parties to an appeal.
The majority of claimants -- all others with pending or future
claims -- would not be eligible for class treatment.

Judges Dyk, Reyna, Stoll, Cunningham, and Stark hold that the case
is a particularly appropriate vehicle for class action treatment.
The case arises from an incident in which approximately 1,400
United States servicemembers were exposed to radiation following a
nuclear accident.

In 1998, Mr. Skaar was diagnosed with leukopenia -- a low white
blood cell count that he claims may be caused by radioactive
exposure. Mr. Skaar alleges that, for decades, the VA has employed
a flawed dose estimate methodology that dramatically underestimated
his and other veterans' radioactive exposure during the Palomares
clean-up and, on that ground, has denied disability compensation
benefits that he is entitled to receive. The Secretary confirmed
that 1,388 service members had participated in the Palomares
clean-up. Mr. Skaar noted at least 19 veterans have already filed
claims. Mr. Skaar's claim is representative of many other veterans
who had been involved in the clean-up, whose claims are at various
stages in the process.

Judges Dyk, Reyna, Stoll, Cunningham, and Stark point out that
class action treatment of these veterans' claims serves the purpose
of the Sergeant First Class Heath Robinson Honoring ther Promise to
Address Comprehensive Toxins Act of 2022 ("PACT Act"), passed in
response to some of the challenges Palomares veterans and other
veterans with service-related exposure to toxic materials had faced
in receiving benefits from the VA.

For these reasons, they suggest that the panel's legal analysis is
contrary to Supreme Court precedent and that en banc review should
have been granted.

A full-text copy of the Court's Jan. 17, 2023 Order is available at
https://tinyurl.com/2rjazzc2 from Leagle.com.

MICHAEL JOEL WISHNIE -- michael.wishnie@yale.edu -- Veterans Legal
Services Clinic, Jerome N. Frank Legal Services Organization, Yale
Law School, New Haven, CT, for claimant-cross-appellant. Also
represented by MEGHAN BROOKS -- meghan.brooks@yale.edu -- NATHAN
HERNANDEZ, CAROLINE MARKOWITZ, CAMILLA REED-GUEVARA. Also
represented by LYNN K. NEUNER -- lneuner@stblaw.com -- ANTHONY
PICCIRILLO -- anthony.piccirillo@stblaw.com -- Simpson Thacher &
Bartlett LLP, New York, NY.

SOSUN BAE, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, for
respondent-appellant. Also represented by BRIAN M. BOYNTON, MARTIN
F. HOCKEY, JR., PATRICIA M. McCARTHY; BRIAN D. GRIFFIN, JONATHAN
KRISCH, Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.


VIAQUEST RESIDENTIAL: Underpays Program Managers, Simmons Claims
----------------------------------------------------------------
KENNETH SIMMONS, individually and on behalf of all others similarly
situated, Plaintiff v. VIAQUEST RESIDENTIAL SERVICES, LLC,
Defendant, Case No. 2:23-cv-00201-SDM-EPD (S.D. Ohio, January 17,
2023) is a class action against the Defendant 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 Wage Act, and the Ohio Prompt Pay
Act.

The Plaintiff has worked for the Defendant as a program manager
from approximately June 2019 to the present.

Viaquest Residential Services, LLC is a healthcare services
provider based in Dublin, Ohio. [BN]

The Plaintiff is represented by:                
      
         Matthew J.P. Coffman, Esq.
         Adam C. Gedling, Esq.
         Kelsie N. Hendren, Esq.
         Tristan T. Akers, Esq.
         COFFMAN LEGAL, LLC
         1550 Old Henderson Rd., Suite #126
         Columbus, OH 43220
         Telephone: (614) 949-1181
         Facsimile: (614) 386-9964
         E-mail: mcoffman@mcoffmanlegal.com
                 agedling@mcoffmanlegal.com
                 khendren@mcoffmanlegal.com
                 takers@mcoffmanlegal.com

VIKING RIVER: ArentFox Schiff Lawyers Discuss Arbitral Proceedings
------------------------------------------------------------------
Nicholas Nesgos, Esq., and Nadav Pearl, Esq., of ArentFox Schiff,
in an article for JDSupra, disclosed that the Court addresses
arbitration of class and collective actions in Viking River
Cruises, Inc. v. Moriana and Coinbase, Inv. V. Bielski."

Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022)
US Supreme Court Narrows Ability of Employees to Pursue
Representative Actions under California PAGA Statute

Angie Moriana worked at Viking River Cruises, Inc. (Viking) as a
sales representative. When she was hired, Moriana executed an
agreement that included a binding arbitration clause and a "class
action waiver," which provided that Moriana could not bring class
or collective actions in arbitral proceedings.

The agreement also had a severability clause, specifying that "if
the waiver was found invalid," any class or collective action
"would presumptively be litigated in court" while the portions of
the agreement that remained valid would proceed in arbitration. Id.
at 1916.

After leaving her position with Viking, Moriana filed suit in
California Superior Court under California's Private Attorneys
General Act of 2004 (PAGA), which permits employees to act as
"private attorneys general to enforce California labor law[.]" Id.
at 1913. Under PAGA, employees can assert individual and
"representative" claims against their former employer. Id. at 1914.
As part of her suit, Moriana asserted not only individual claims
under the California Labor Code, but also "a wide array of other
code violations allegedly sustained by other Viking employees[.]"
Id. at 1915.

Viking moved to compel arbitration of Moriana's individual claims,
and to dismiss her representative PAGA claims. The Superior Court
denied Viking's motions and the California Court of Appeals
affirmed, holding that under California precedent "PAGA claims
cannot be split into arbitrable individual claims and nonarbitrable
‘representative' claims." Id. at 1916–17.[1]

The US Supreme Court, noting that there was a conflict between
PAGA's procedural structure and the Federal Arbitration Act (FAA),
held that the FAA preempts California law "insofar as it precludes
division of PAGA actions into individual and non-individual claims
through an agreement to arbitrate." Id. at 1924. Since Moriana's
employment agreement contained a severability clause, Viking was
entitled to force Mariana to arbitrate her individual claims even
though her waiver of class or collective claims was unenforceable
under PAGA. Id. at 1925. However, the Court continued, PAGA
"provides no mechanism to enable a court to adjudicate
non-individual PAGA claims once an individual claim has been
committed to a separate proceeding." Id. As a consequence, once
Viking was successful in compelling Moriana to arbitrate her
individual claims, she lacked standing to pursue her representative
claims and the "correct course" was to dismiss them.

The Viking decision weakens the ability of employees to pursue
collective actions for labor violations in California. As long as
employees can be compelled to arbitrate their individual PAGA
claims, they lack standing to pursue class-wide, representative
claims under the Act. Although Viking was, in one sense, a narrow
opinion focusing on PAGA, it reflects an ongoing struggle between
employees' rights to pursue collective actions and employers' use
of arbitration agreements to compel arbitration of individual
claims and waive class or collective claims.

This past November, for example, Twitter moved to compel
arbitration in a case filed in the Northern District of California
by four employees. See Cornet et al v. Twitter, Inc.,
3:22-CV-06857-JD, Dkt. No. 18 (Nov. 22, 2022). Twitter maintains in
its motion that the FAA and applicable precedent "dictate that
where, as here, a plaintiff has entered into an arbitration
agreement with a class action waiver, their individual claims must
be compelled to arbitration and the putative class claims
dismissed." Id. at 8. District Judge James Donato set hearing on
that motion for January 2023.

Coinbase, Inc. v. Bielski

US Supreme Court Grants Certiorari in Case Concerning Stays of
Arbitration

On December 9, 2022, the US Supreme Court granted certiorari in
Coinbase, Inc. v. Bielski.[2] The Coinbase case joins before the
Court two underlying putative class actions brought in the Northern
District of California, Bielski v. Coinbase, Inc.,
3:21-cv-07478-WHA (N.D. Cal. 2021) and Suski v. Coinbase, Inc. et
al., 3:21-cv-04539-SK (N.D. Cal. 2021).

The District Court actions involve different substantive claims,
but they share two important characteristics. First, both are
putative class actions. Second, in both cases Coinbase moved to
compel arbitration, the District Court denied the motion, and
Coinbase appealed that denial pursuant to § 16(a) of the FAA,
which permits interlocutory appeal of a district court's order
denying a motion to compel arbitration. In its petition, Coinbase
asks the Court to consider "whether an appeal from the denial of a
motion to compel arbitration requires that further proceedings in
the district court be stayed until the appeal is resolved, or
whether courts have discretion to deny a stay under the traditional
stay factors and thus require the parties to litigate in court
during the pendency of the appeal." Pet. App. at 2.

Circuit Courts are split on this issue. The Third, Fourth, Seventh,
Tenth, Eleventh, and DC Circuits have held that an appeal of a
district court's order denying a motion to compel arbitration
"divests the district court of jurisdiction," automatically staying
the trial court proceedings. Id. The Second, Fifth, and Ninth
Circuits have held to the contrary — that the appealing party
must obtain a stay or, if it fails to do so, continue with
litigation in the district court. Id.

Though Coinbase does not address an issue particular to class or
collective actions, it may have a significant impact on how these
cases are litigated. The decision will also impact settlement
leverage, as an automatic stay pending resolution of an appeal
creates another hurdle for class action plaintiffs.

ArentFox Schiff continues to monitor these, and other class actions
issues, as they develop across the country. [GN]

VIVINT SOLAR: Dekker Deal's Final Approval Hearing Moved to July 12
-------------------------------------------------------------------
In the case, GERRIE DEKKER, et al., Plaintiffs v. VIVINT SOLAR,
INC., et al., Defendants, Case No. C 19-07918 WHA (N.D. Cal.),
Judge William Alsup of the U.S. District Court for the Northern
District of California continues the final approval hearing of the
parties' settlement to July 12, 2023, at 8:00 a.m.

At the hearing on the motion for preliminary approval, Judge Alsup
identified deficiencies in the parties' settlement agreement and
class notice. The parties then filed an amended settlement
agreement and class notice, at which point they renewed their
request for preliminary approval. Upon careful review, Judge Alsup
has determined that the parties did not address all of its
concerns, so preliminary approval still cannot be granted.

Although the parties added language on skip tracing and attorney's
fees, and adjusted language on Vivint Solar's parent entity and the
class members' heirs and successors, Judge Alsup finds that they
did not meaningfully address the Court's primary concern and
clarify for class members the scope of the settlement. That is, if
the class members agree to the settlement, which involves one
specific term in their contract, they will be bound only with
respect to that term: the buy-out clause. The scope of the
settlement should be explained in words that a class member could
readily understand without having to dig through the contract,
court filings, or California Civil Code.

In the class notice, Section 7 entitled "What Are My Options?"
should be modified as follows:

   "1. If you take no further action, you will remain a Class
Member, represented by Class Counsel, and you will be part of the
Settlement and bound by the Settlement.

   The Settlement does not provide any money to any Class Member.
Instead, the benefit to you will be that one provision in your
Purchase Power Agreement (PPA) will be modified, and the Settlement
will provide you the benefit of that modification. In exchange, you
will give up any claims based upon that provision certified by the
Court: claims under California Civil Code section 1671 and
violations of the Unfair Competition Law and Consumer Legal
Remedies Act predicated on section 1671. You will not, however,
give up any claims based upon any other provision in your PPA. The
new language to which you would become bound is set forth in
Section 11(B) below . . . ."

The settlement agreement should be modified to reflect these
changes as well.

Moreover, Judge Alsup observes that the parties did not alter
language in Section 2.5 of the settlement agreement on the parties'
intent, which the Court at the hearing explained is ambiguous and
could be construed to contradict the release." At the very least,
such language should be modified to reflect that it is not, in
fact, the parties' intent to settle claims that "could have been
asserted in the Action" but rather only those that "were."

Judge Alsup further observes that the new language on communication
with the parties in Section 9.8 of the settlement agreement should
be supplemented to better comport with what the Court requested at
the hearing. Finally, the parties should ensure that their language
is internally consistent throughout.

The parties will have one more opportunity to renew their request
for preliminary approval and amend the settlement agreement and
class notice. The final approval hearing is continued to July 12,
2023, at 8:00 a.m., allowing ample time for notice distribution and
inquiries from the class members.

A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/m6uk2zxd from Leagle.com.


VOLKSWAGEN GROUP: Agrees to Settle Data Security Suit for $3.5-M
----------------------------------------------------------------
A settlement has been reached with Volkswagen Group of America,
Inc., Audi of America LLC, and Sanctus, LLC d/b/a Shift Digital
(collectively, "Defendants") in a class action lawsuit titled
Service, et al. v. Volkswagen Group of America, Inc., et al., Case
No. MSC22-01841, pending in the Superior Court of California,
Contra Costa County. The lawsuit arises from an alleged data
security incident (the "Incident") involving the personal
information ("PI") and sensitive personal information ("SPI") of
certain current, former, and prospective Volkswagen and Audi
customers.

Who is included in the settlement? You are included in the
settlement and are a Settlement Class Member if you reside in the
United States and were sent a notice in June 2021 by Volkswagen
and/or Audi that your PI or SPI may have been exposed as a result
of the Incident.

What does the settlement provide? As part of the settlement,
Defendants have agreed to pay $3.5 million into a Settlement Fund,
which will be used to pay (1) cash settlement awards to Settlement
Class Members who file valid claims; (2) Settlement Administration
expenses; (3) attorneys' fees and costs incurred by Class Counsel;
and (4) service awards to the named plaintiffs. Settlement Awards
include cash payments ($350 to California SPI Subclass members, $80
to Nationwide SPI Subclass members, and $20 to Nationwide PI
Subclass members, subject to upward and downward proration) or
reimbursement of out-of-pocket losses fairly traceable to the
Incident (California SPI and Nationwide SPI Subclass members only,
subject to downward proration). The payment amounts depend on the
number of valid claims received. In addition, as part of the
settlement, Shift Digital, has agreed to certain business practice
changes in the form of data security enhancements.

How do I get an award from the settlement? You must properly
complete and timely submit a Claim Form to receive a Settlement
Award. You may submit your Claim Form online at
www.AudiDataSettlement.com or by mail. You can obtain a paper Claim
Form at www.AudiDataSettlement.com or by calling toll-free
1-866-329-0166. To be timely, the Claim Form must be submitted
electronically or postmarked by April 12, 2023.

What are my other options? If you do not wish to submit a claim,
you may: (1) do nothing; (2) object to the settlement; or (3)
exclude yourself from the Settlement Class. If you object to the
settlement or do nothing, you are choosing to stay in the
Settlement Class. You will be legally bound by all orders of the
Court, and you will not be able to start, continue, or be part of
any other lawsuit against Defendants or related parties concerning
the Incident. If you choose to object to the settlement, you will
have the opportunity to tell the Court why you think that the Court
should not finally approve the settlement. To object to the
settlement, you must submit a written objection to the Settlement
Administrator by March 13, 2023, or appear at the final approval
hearing, which is currently set for May 18, 2023 at 9:00 a.m. PT.
If you do not want to be bound by the settlement, you must exclude
yourself from the Settlement Class by submitting a request for
exclusion by March 13, 2023.

For more information, or to view important settlement documents,
visit www.AudiDataSettlement.com or call 1-866-329-0166.[GN]

WALGREEN CO: Class Settlement in Caves Suit Wins Final Approval
---------------------------------------------------------------
In the case, GLORIA CAVES and TAMIM KABIR, On Behalf of Themselves
and All Others Similarly Situated, Plaintiffs v. WALGREEN CO.,
Defendant, Case No. 2:18-cv-02910-MCE-DB (E.D. Cal.), Judge
Morrison C. England, Jr., of the U.S. District Court for the
Eastern District of California, Sacramento Division, grants final
approval of the parties' Class Settlement.

The matter came on for hearing on Jan. 5, 2023, on the Class
Representatives' Motion for Attorneys' Fees and Costs and unopposed
Motion for Final Approval of Class Action Settlement and for
Judgment on the terms set forth in the Joint Stipulation of Class
Action Settlement.

The Plaintiffs have alleged claims against the Defendant, on behalf
of themselves and all current and former employees who work/worked
for Defendant in the State of California as a Store Manager at any
time between Oct. 16, 2014 and Aug. 24, 2020.

The Plaintiffs asserted claims for: (1) failure to provide meal
periods; (2) failure to authorize and permit rest periods; (3)
failure to pay all wages when due; (4) failure to provide accurate
itemized wage statements; (5) failure to pay overtime wages; (6)
waiting time penalties; (7) breach of contract; (8) breach of
implied covenant of good faith and fair dealing; and (9) unlawful
business practices, in violation of Business and Professions Code
section 17200, et seq. Plaintiffs further asserted a claim that
Defendant is liable for penalties under the California Private
Attorneys General Act of 2004 ("PAGA") (Cal. Labor Code Sections
2698, et seq.) because of the Defendant's alleged violations of the
California Labor Code and California Industrial Welfare Commission
Wage Orders.

The Defendant expressly denies the allegations of wrongdoing and
violations of law alleged and further denies any liability
whatsoever to the Plaintiffs or to the Class Members.

Without admitting any liability, claim or defense, the Parties
determined that it was mutually advantageous to settle the Action
and avoid the costs, delay, uncertainty and business disruption of
ongoing litigation.

The Court granted approval of the PAGA Settlement and preliminary
approval of the Parties' Settlement on Aug. 24, 2020. Class Notice
was sent to the Class Members in accordance with the Preliminary
Approval Order.

Subsequent to the distribution of the Class Notice, two
individuals, Barbarito Ruan Vasquez and Michael Shaw, filed
objections. On Dec. 15, 2022, Vasquez withdrew his objection,
declaring that he, in fact, has "no objection" to the Settlement,
leaving only one objector to the Settlement.

A Fairness Hearing on the proposed Class Settlement has been duly
held.

Judge England grants final approval of the Class Settlement. For
the purposes of his Order, he adopts all defined terms as set forth
in the Settlement Agreement. He overrules the objections filed by
Shaw.

Judge England grants final approval of the Class Settlement as
fair, reasonable and adequate in all respects to the Class Members
pursuant to Rule 23 of the Federal Rules of Civil Procedure, and
orders the Parties and the Settlement Administrator to implement
all remaining terms of the Settlement Agreement.

The plan of distribution as set forth in the Settlement Agreement,
providing for the distribution of the Net Settlement Amount to
Settlement Class Members, is finally approved as being fair,
reasonable, and adequate pursuant to Rule 23 of the Federal Rules
of Civil Procedure.

As previously held in the Court's Preliminary Approval Order, the
Class, for Settlement purposes, is appropriate under Fed. R. Civ.
P. 23 and related case law and is defined as follows: "All current
and former employees who work/worked for Walgreens in the State of
California as exempt Store Managers (and classified under job code
TMG, MGR, RMGR, MGRX, MGR, MGRB, and MGRSA) at any time during the
Class Period [at any time between Oct. 16, 2014 and Aug. 24, 2020]
and who do not submit a timely and valid Request for Exclusion, as
provided in this Agreement, or who did not previously release the
Released Claims under a separate agreement."

Appendix A is a schedule of all such persons who have timely and
validly requested to be excluded from the Settlement Class.
Settlement Class Members requesting exclusion from the Class will
not be entitled to receive any reimbursement as described in the
Settlement Agreement.

Judge England appoints the Plaintiffs as the Class Representatives;
and Miller Shah LLP and Edgar Law Firm LLC as the Class Counsel. He
approves payment of the Class Representative Enhancements of
$10,000 to each Plaintiff, totaling $20,000, for their service to
the Class, which will be paid from, and not in addition to, the
Maximum Settlement Fund.

Judge England also approves the payment of attorneys' fees in the
amount of $1.5 million to the Class Counsel, which will be paid
from, and not in addition to, the Maximum Settlement Fund. He
further approves the additional payment of attorneys' costs in the
amount of $45,310.53 to the Class Counsel to reimburse them for
their expenses, which will be paid from, and not in addition to,
the Maximum Settlement Fund.

Judge England approves a payment of up to $25,000 to the Settlement
Administrator out of the Maximum Settlement Fund. Any portion of
the payment to the Settlement Administrator that is unused will go
into the Net Settlement Amount.

Any checks for Individual Settlement Payments that are not cashed
within 180 days will be transmitted to the National Association of
Minority and Women Owned Law Firms (NAMWOLF).

All claims asserted in this Action are dismissed with prejudice as
to the Plaintiffs and the Settlement Class Members pursuant to the
terms of the Settlement Agreement. Each party will bear his, her or
its own costs and attorneys' fees, except as provided in the
Settlement Agreement, as set forth above in the Order, and as set
forth in any other Order issued in response to the application by
the Class Counsel for an award of attorneys' fees, costs, and
expenses, which hearings took place concurrently with the hearing
for the Order.

Upon entry of the Order and the accompanying Judgment, the claims
and the Released Claims of each Settlement Class Member against the
Defendant, and against any and all of the Released Parties as
defined in the Settlement Agreement, are fully, finally, and
forever released, relinquished and discharged pursuant to the terms
of the Settlement Agreement to the maximum extent permitted by
law.

Upon entry of the Order and the accompanying Judgment, all
Settlement Class Members are forever barred and enjoined from
prosecuting the Released Claims against any of the Released Parties
as defined in the Settlement Agreement and as set forth in the
Preliminary Approval Order.

Each Settlement Class Member is bound by the Order and the
Judgment, including, without limitation, the release of claims as
set forth in the Settlement Agreement.

The Amended Complaint is dismissed with prejudice, and the claims
against the Defendant are released.

The Parties are authorized, without further approval from the
Court, to agree to and to adopt such amendments, modifications, and
expansions of the Settlement as are consistent with the Final
Approval Order and Judgment.

Without affecting the finality of the Order and the accompanying
Judgment filed therewith, the Court reserves exclusive and
continuing jurisdiction over the Action, the Plaintiffs, the
Settlement Class Members, and Defendant for the purposes of
supervising the implementation, enforcement, construction, and
interpretation of the Settlement Agreement, Preliminary Approval
Order, distribution of the Maximum Settlement Fund, the Final
Judgment, and the Order.

The Clerk of the Court is directed to close the case.

A full-text copy of the Court's Jan. 13, 2023 Final Approval Order
& Judgment is available at https://tinyurl.com/4hwf2r56 from
Leagle.com.

James C. Shah -- jcshah@millershah.com -- Chiharu G. Sekino --
cgsekino@millershah.com -- MILLER SHAH LLP, San Diego, CA,
Attorneys for Plaintiffs GLORIA CAVES and TAMIM KABIR.


ZARBEE'S INC: Bid to Dismiss Amended Lopez Suit Granted in Part
---------------------------------------------------------------
In the case, KRYSTAL LOPEZ, Plaintiff v. ZARBEE'S, INC., Defendant,
Case No. 22-cv-04465-CRB (N.D. Cal.), Judge Charles R. Breyer of
the U.S. District Court for the Northern District of California
grants in part and denies in part the Defendant's motion to dismiss
the First Amended Complaint.

Lopez brings the putative class action against the Defendant in
connection with Zarbee's melatonin supplements. She alleges that
Zarbee's products include significantly more melatonin than the
label asserts and, therefore, violate state consumer protection
laws.

Zarbee's, a Delaware corporation, sells melatonin supplements
nationwide at retailers like Walmart and Target. Lopez lives in
California, and purchased a Zarbee's melatonin product in
California.

Melatonin is a neurohormone that regulates sleep. Millions of
consumers take over-the-counter melatonin supplements to help them
sleep. Federal law imposes a comprehensive regulatory scheme for
dietary supplements, including melatonin supplements.

The FDA forbids supplement labels that overstate quantities. FDA
regulations require that the quantity of melatonin be at least
equal to the value declared on the label for the product's full
shelf life. A product that has less melatonin than is listed on the
label is "misbranded."

In June of 2022, Lopez purchased a bottle of Zarbee's Children's
Sleep with Melatonin Gummies from a Walmart store in Salinas,
California. The gummies were for her 8-year-old child. Lopez relied
on the fact that Zarbee's dosages were well-controlled and read and
relied on the accuracy of the melatonin content on the label. She
chose the 1 mg dose per gummy because she did not want to give her
child more melatonin, due to increased concerns about side effects
and safety. She gave him the gummies and noticed that they
sometimes would have a very strong tranquilizing effect that
concerned her, and then the next day he would be unusually
subdued.

Lopez did a liquid chromatograph-mass spectrometry analysis on
three gummies from each of two bottles of gummies, including the
bottle she purchased. The gummy from Lopez's bottle had more than
twice the amount of melatonin than what Zarbee's stated on the
label (2.16 mg instead of 1 mg). A gummy from a bottle that was one
month away from expiring still had 222% of the claimed melatonin
content (2.23 mg instead of 1 mg).

Lopez initially brought suit in August of 2022, arguing that the
product was not accurately dosed or labeled. Zarbee's moved to
dismiss the original complaint, arguing that the FDA allows for
overages and that Lopez's testing methodology was inadequate.

Lopez amended. The FAC now alleges that because the excess is
materially more than reasonably necessary to ensure that the
melatonin meets the amount specified on the product label
throughout the product's shelf life, Zarbee's Melatonin is
unreasonably overdosed. It includes claims for violation of: (1)
California, Connecticut, Illinois, Maryland, Missouri, and New York
consumer protection acts; (2) California's Unfair Competition Law
(UCL); (3) California's False Advertising Law (FAL); (4)
California's Consumers Legal Remedies Act (CLRA); as well as: (5)
breach of express warranty; and (6) unjust
enrichment/quasi-contract.

Zarbee's again moves to dismiss. First, it argues that the FAC
should be dismissed with prejudice because (a) all of the claims
are completely preempted by the FDA, and (b) Lopez lacks standing.

Judge Breyer does not dismiss the FAC based on express preemption.
He finds that Lopez alleges that there is more than what is
required to meet the label declaration for that dietary ingredient
throughout the product's shelf life. Because Lopez's claims would
not impose requirements on manufacturers that are different from
what the FDA requires, they are not preempted.

Judge Breyer also does not dismiss the FAC based on express
preemption. He holds that Lopez has alleged enough to plausibly
claim that Zarbee's violates the FDA standard for overages. Put
another way, Zarbee's has not met its burden to establish that
Lopez pleaded herself out of court by pleading facts that establish
Zarbee's compliance with FDA regulations. In addition, Zarbee's may
re-raise the issue of preemption at a later point if appropriate.
Lopez will eventually have to prove that Zarbee's failed to comply
with the FDA overage regulations.

Next, Zarbee's argues that Lopez lacks standing to bring claims
based on (1) products she did not purchase, (2) the Zarbee's
website, which she did not visit, and (3) other states' laws.

Judge Breyer finds that Lopez has not adequately alleged that
melatonin products are "substantially similar" such that the
resolution of the asserted claims will be identical between the
purchased and unpurchased products. Her claims based on unpurchased
products are dismissed, with leave to amend.

And, because there are no misrepresentations on Zarbee's website
form the basis for any of Lopez's claims, and so there is nothing
for the Court to dismiss.

Lastly, Zarbee's has not even tried to make a showing about other
states' laws. And because the FAC only asserts state claims for
five additional states (none as populous as California), there is
not the same case management concern Judge Chen encountered in
Sultanis v. Champion Petfoods USA Inc., No. 21-cv-162-EMC, 2021 WL
3373934, at *5 (N.D. Cal. Aug. 3, 2021). Judge Breyer therefore
denies Zarbee's motion to dismiss on this basis, but allows
Zarbee's to re-raise this issue at a later date, likely framed as
whether, per Rule 23, Lopez can represent class members with claims
based on other states' laws.

For the foregoing reasons, Judge Breyer grants the motion to
dismiss only as to the unpurchased products, and denies it in all
other respects. Lopez may amend her complaint as to the unpurchased
products, if she wishes to do so, within 30 days of the Order.

A full-text copy of the Court's Jan. 17, 2023 Order is available at
https://tinyurl.com/yckp9hju from Leagle.com.


ZEIGLER MOTORS: Diamond-Hinks BIPA Suit Removed to N.D. Ill.
------------------------------------------------------------
The case styled CHRISTINA DIAMOND-HINKS, individually and on behalf
of all others similarly situated, Plaintiff v. ZEIGLER MOTORS, LLC,
ZEIGLER MASERATI OF SCHAUMBURG and, ZEIGLER CHRYSLER DODGE JEEP,
LLC, Defendant, Case No. 2022-CH11278, was removed from the Circuit
Court of Cook County, Illinois, to the United States District Court
for the Northern District of Illinois on January 17, 2023.

The Clerk of Court for the Northern District of Illinois assigned
Case No. 1:23-cv-00267 to the proceeding.

On November 17, 2022, Plaintiff Diamond-Hinks filed this putative
class action complaint alleging that Defendants violated the
Illinois Biometric Information Privacy Act by "requiring employees
to use a key tracking biometric key system to access and return
keys for the motor vehicles on Defendants' car dealership lots that
operated, at least in part, by scanning their fingerprints."

Zeigler Motors, LLC is a privately-owned car dealer group in the
U.S.[BN]

The Defendants are represented by:

          Gerald L. Maatman, Jr., Esq.
          Jennifer A. Riley, Esq.
          Shaina Wolfe, Esq.
          DUANE MORRIS LLP
          190 South LaSalle Street, Suite 3700
          Chicago, IL 60603-3433
          Telephone: (312) 499-6700
          Facsimile: (312) 499-6701
          E-mail: gmaatman@duanemorris.com
                  jariley@duanemorris.com

                        Asbestos Litigation

ASBESTOS UPDATE: Court Orders Hess to Spell Out Financial Support
-----------------------------------------------------------------
Akiko Matsuda of The Wall Street Journal reports that U.S.
Bankruptcy Judge Marvin Isgur ordered Hess Corp. to make a written
commitment of financial support in subsidiary Honx's Chapter 11
case, which aims to resolve hundreds of asbestos-injury claims from
an oil refinery it used to own in St. Croix in the U.S. Virgin
Islands.

Judge Marvin Isgur of the U.S. Bankruptcy Court in Houston, Texas,
said in his bench ruling Wednesday, January 4, 2023, he agreed with
asbestos claimants' argument that no rational negotiation can
happen until Hess spells out its financial contribution.

ASBESTOS UPDATE: Koch Got $2.5BB Dividend Payments from Bestwall
----------------------------------------------------------------
Dan Levine and Mike Spector, writing for Reuters.com, reports that
Industrial conglomerate Koch Industries received nearly $2.5
billion in dividend payments last year from its Georgia-Pacific
unit, which had spun off a subsidiary that took on its liability
from asbestos litigation and then filed bankruptcy to limit lawsuit
payouts, according to documents filed in a U.S. Bankruptcy Court in
North Carolina.

Koch unit Georgia-Pacific used a corporate bankruptcy maneuver
known as the Texas two-step, forming a new Texas subsidiary,
Bestwall, that took on the company's asbestos liability. Bestwall
declared bankruptcy about three months after its founding. The
latest court documents provide new detail about how Koch has
benefited from the case.


                            *********

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
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.

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