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/raid1/www/Hosts/bankrupt/CAR_Public/230130.mbx C L A S S A C T I O N R E P O R T E R Monday, January 30, 2023, Vol. 25, No. 22 Headlines A.J. BOGGS: Court Sets Class Certification Deadlines & Hearings ALAMEDA COUNTY, CA: Class Cert Hearing Continued to Feb. 23 ALLERGAN PLC: DeKalb Appeals Summary Judgment Ruling to 2nd Cir. ALTER ECO: Dark Chocolate Bars Contain Heavy Metals, Rodriguez Says ALTERRAON PHILLIPS: Arnstein Seeks Class Certification ALTICOR INC: Faces Class Suit Over Retirement Plan Mismanagement AMERICAN HONDA: Court Narrows Claims in Quackenbush Suit ARKK FOOD: Counts Sues Over Mislabeled Wahlburgers Pickles AUTOFAIR INC: Class Settlement Approval in Chechowitz Suit Affirmed AXA EQUITABLE: Court Denies Bid to Decertify Class in COI Suit BECTON & DICKINSON: Lead Plaintiff Files Class Certification Bid BESHAY FOODS: Fails to Provide Proper Meal & Rest Breaks, Suit Says BMW OF NORTH AMERICA: Loses Bid to Consolidate Kavon & Burbank BMW OF NORTH AMERICA: Loses Bid to Consolidate Kavon, Burbank Suits BOEHRINGER INGELHEIM: Bacher Suit Moved to Connecticut Super. Court BOOKSY INC: Dominguez Suit Removed to S.D. Fla. BOSTON UNIVERSITY: Parties in Dutra Seek OK of Proposed Schedule BP EXPLORATION: Wins Bid for Summary Judgment in Castleberry Suit BRAGG COMMUNITIES: Court Denies Bid to Dismiss Thomas Class Suit BRIDGEBIO PHARMA: SMART Local Appeals Suit Dismissal CALIFORNIA: Judge Recommends Denial of Wilson's Bid for Class Cert. CANADA: Agrees to Settle Indian Residental Schools' Suit for $2.8-B CCFI LLC: Zanabria Labor Suit Removed to E.D. Cal. CEREBRAL INC: 1st Amended Debono Suit Dismissed With Leave to Amend COCA-COLA CO: Orange Juice Drinks Have Toxic Chemicals, Suit Says COCA-COLA COMPANY: Letoski Sues Over Mislabeled Soda Water CONSUMER REPORTS: Wallen Appeals Case Dismissal Ruling to 2nd Cir. DAVID KUSHNER: Denial of Bids to Dismiss in Rosenshein Suit Upheld DOLGENCORP LLC: Davis Sues Over Failure to Pay Overtime Wages DOORDASH INC: Bid to Compel Arbitration in Mullo Class Suit Granted ENDANGERED SPECIES: Rodriguez Hits Cocoa Bars' Lead Content ENTRADA THERAPEUTICS: Pomerantz Probes Potential Securities Claims FATE THERAPEUTICS: Portnoy Law Probes Potential Securities Claims FIELDWORKS LLC: Bid to Remand Swans Suit to Superior Court Denied FLUOR CORP: N.D. Texas Grants Bids to Dismiss Locascio ERISA Suit GLEN MILLS: $3-M Settlement Reached Over School Abuse Claims HANESBRANDS INC: Fails to Protect Employees' Info, Roman Says HORIZON ACTUARIAL: Jimenez Class Suit Transferred to N.D. Georgia IKEA US: Dukich Appeals Summary Judgment Ruling to 3rd Circuit ILLINOIS FARMERS: Bid to Amend Certified Class in Taqueria Denied INOVIO PHARMACEUTICALS: McDermid's $44MM Class Deal Wins Final OK INTERNATIONAL BUSINESS: Pomerantz Probes Potential Securities Suit IOVATE HEALTH: Moore Suit Removed to C.D. Cal. JETSUITEX INC: McKeehan Suit Remanded to Los Angeles Superior Court JOHNSON'S TREE: Arredondo FLSA Suit Transferred to M.D. Fla. L'OREAL USA: Gethers Sues Over Toxic Chemicals in Hair Products L'OREAL USA: Hair Products Contain Harmful Chemicals, Bridges Says LABCORP DRUG: Kaba Suit Removed to S.D. Ind. LATCH INC: Rosen Law Named Lead Counsel in Brennan Securities Suit MERCEDES-BENZ USA: Files Motion to Dismiss M274 Engine Class Suit MRS BPO: Faces Blum Suit Over Unfair Debt Collection Practices NATIONAL RESTAURANT: Gallagher Hits Deceptive Business Practices NAVY FEDERAL: Wilkins Class Suit Dismissed Without Prejudice NEWAGE INC: Taylor Sues Over False Registration Statements NORTHERN TRUST: Emerson Suit Removed to N.D. Cal. PACE ASSEMBLY: Fails to Pay Proper Wages, Beechboard Says PATERSON CAR: Court Approves Revised $8K Class Deal in Vidal Suit REALPAGE INC: Faces Another Rental Price Fixing Suit in Florida ROCKWELL COLLINS: Alvarado Labor Suit Removed to C.D. Cal. SOFT-LITE LLC: McCall Stayed Until 6th Cir. Resolves Holder Appeal SYNGENTA CROP: Graham Sues Over Anticompetitive Loyalty Programs TEXAS: Bid to Dismiss Shafer v. Rutledge of TDCJ Granted in Part UNITED STATES: Appeals Judgment in Micu Suit to Fed. Circuit UROLOGY OF GREATER: Bland Files Suit Over Data Breach VALLEY HEALTH: Doe Suit Removed to D.N.J. VERIZON DATA: District Court Denies Bid to Remand Kendall Suit VRDOLYAK LAW: Bid to Dismiss Alholm Class Suit Granted in Part WALMART INC: Adelstein Suit Removed to N.D. Ohio WAYNE COUNTY, MI: Appeals Final Judgment in Bowles Suit WELLS FARGO: Court Consolidates Six Discrimination Class Suits WESTERN AUSTRALIA: Commission Offered to Halt Suit, Lawyers Allege WESTERN EXPRESS: Hendricks Labor Suit Removed to C.D. Cal. WEXFORD HEALTH: Court Denies Bids to Dismiss Blossom Class Suit Y-MABS THERAPEUTICS: Bids for Lead Plaintiff Naming Due March 20 Y-MABS THERAPEUTICS: Corwin Sues Over Share Price Drop [*] Submission of $56-M Dementia Drug Settlement Claims Set Feb. 3 ********* A.J. BOGGS: Court Sets Class Certification Deadlines & Hearings --------------------------------------------------------------- In the class action lawsuit captioned as John Doe v. A.J. Boggs & Company, Case No. 1:18-cv-01464 (E.D. Cal.), the Hon. Judge Barbara A Mcauliffe entered an order setting class certification deadlines and hearings as follows: -- The parties shall file a Joint Scheduling Report, proposing dates for class discovery and motion for class certification briefing, one week prior to the conference. -- The parties shall appear at the conference remotely either via Zoom video conference or Zoom telephone number. --The parties will be provided with the Zoom ID and password by the Courtroom Deputy prior to the conference. The Zoom ID number and password are confidential and are not to be shared. The nature of suit states Diversity-Other Contract. AJ Boggs is an IT company specializing in software development services.[CC] ALAMEDA COUNTY, CA: Class Cert Hearing Continued to Feb. 23 ----------------------------------------------------------- In the class action lawsuit captioned as ALAMEDA COUNTY MALE PRISONERS And Former Prisoners, DANIEL GONZALEZ, et al. on behalf of themselves and others similarly situated, as a Class, and Subclass, v. ALAMEDA COUNTY SHERIFF'S OFFICE, et al, Case No. 3:19-cv-07423-JSC (N.D. Cal.), the Hon. Judge Jacqueline Scott Corley entered an order that the hearing date of February 9, 2023 for plaintiffs' motion for class certification shall be continued for hearing to February 23 2023, at 10 a.m. in Courtroom 8, 19th Floor of the above Court at 9:00 a.m. by a Zoom videoconference. The hearing on plaintiffs' motion for class certification was originally set for January 19, 2023. In order to accommodate defendant Aramark's request to file a sur-reply, the Court reset the hearing for February 9, 2023. The Plaintiffs' counsel is unavailable on February 9, 2023, as she has prepaid plans to be out of state on a much delayed vacation. The parties request that the hearing be reset for February 23, 2023 or anytime thereafter, at the Court's convenience. A copy of the Court's order dated Jan. 17, 2022 is available from PacerMonitor.com at https://bit.ly/3HjmLLh at no extra charge.[CC] The Plaintiffs are represented by: Yolanda Huang, Esq. LAW OFFICES OF YOLANDA HUANG Berkeley, CA 94705 Telephone: (510) 329-2140 Facsimile: (510) 580-9410 E-mail: yolanda@yhuanglaw.com The Defendant is represented by: Charles Reitmeye, Esq. MORGAN, LEWIS & BOCKIUS LLP 300 South Grand Ave., 22nd Floor Los Angeles, CA 90071-3132 Telephone: (213) 612-2500 Facsimile: (213) 612-2501 ALLERGAN PLC: DeKalb Appeals Summary Judgment Ruling to 2nd Cir. ---------------------------------------------------------------- Plaintiff DeKalb County Pension Fund filed an appeal from the District Court's Order and Judgment dated December 12, 2022, entered in In RE ALLERGAN PLC SECURITIES LITIGATION, Case No. 1:18-cv-12089-CM-GWG, in the United States District Court for the Southern District of New York. The lawsuit is a federal securities class action brought on behalf of the Class for violations of the Securities Exchange Act of 1934. It asserts that Allergan misled investors by boasting about various "pharma and device approvals" while concealing from investors the fact that the Company's CE Mark for its textured breast implants and tissue expanders was expiring in Europe. The truth was revealed on December 19, 2018, when the Company announced that it had suspended the sale of these products and that it was withdrawing all remaining supplies from European markets, says the suit. As previously reported in the Class Action Reporter, Judge Colleen McMahon granted Allergan's motion for summary judgment, and dismissed the plaintiff's case in its entirety on December 12, 2022. The court held that the plaintiff had not produced sufficient evidence to show that there was a genuine issue of material fact on three of the required elements of a Section 10(b) claim: falsity, materiality, and loss causation. First, the court concluded that none of the alleged misstatements were either literally untrue or misleading in context, given that the science available at the time of the disclosures had not concluded that Allergan's textured implants in fact carried an increased risk of the disease as compared to textured implants produced by other manufacturers. With respect to two of the four challenged statements, the court criticized the plaintiff for making a "'Hail Mary pass' of an argument" that was "arguably bad faith." Second, the court concluded that the plaintiff had failed to produce evidence that the disclosures about Allergan's textured implant business, which constituted less than 1% of Allergan's total revenues, were material to investors. Finally, on loss causation, the court said that the plaintiff had produced "not a scintilla" of evidence showing that the recall of Allergan's textured implants in December 2018 by a French regulator was driven by concerns that Allergan's textured breast implants carried a heightened risk of the disease as compared to other manufacturers' textured implants. The court also rejected the plaintiff's attempts to introduce new or recycled theories of fraud in support of its claims. Even if it were to consider those improperly raised theories, the court stated that it would reject them based on the undisputed evidence. The court concluded that while it had let the case proceed past the motion to dismiss phase when drawing all inferences in favor of the plaintiff's theories, following discovery the plaintiff had failed to produce the required evidence to support its allegations. The appellate case is captioned as In Re: Allergan PLC Securities Litigation, Case No. 23-59, in the United States Court of Appeals for the Second Circuit, filed on January 11, 2023.[BN] Plaintiff-Appellant DeKalb County Pension Fund is represented by: James Milligan Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 3rd Avenue New York, NY 10017 Telephone: (212) 983-9330 Defendants-Appellees Allergan PLC, William Meury, Maria Teresa Hilado, Brenton L. Saunders, Matthew M. Walsh, Frances DeSena, Mark Marmur, and Paul Bisaro are represented by: Abena Ayowa Mainoo, Esq. CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, NY 10006 Telephone: (212) 225-2785 ALTER ECO: Dark Chocolate Bars Contain Heavy Metals, Rodriguez Says ------------------------------------------------------------------- CRYSTAL RODRIGUEZ, on behalf of herself, all others similarly situated, and the general public, Plaintiff v. ALTER ECO AMERICAS INC., Defendant, Case No. 3:23-cv-00053-L-AGS (S.D. Cal., January 11, 2023) is a class action against the Defendant for breach of implied warranties, unjust enrichment, and violations of the California Business and Professions Code and the California Civil Code concerning the presence of lead and cadmium in dark chocolate bars. According to the complaint, Alter Eco's conduct with respect to the labeling, advertising, and sale of the Alter Organic Dark Chocolate Classic Blackout 85% Cacao dark chocolate bar was unfair because consumers, including Plaintiff, who purchased the product were injured by its acts and omissions concerning the presence of lead and cadmium in its product. No reasonable consumer would know, or have reason to know, that the product contains heavy metals. Worse, as companies across the industry have adopted methods to limit heavy metals in their dark chocolate products, Alter Eco has stood idly by with a reckless disregard for its consumers' health and well-being, says the suit. The Plaintiff brings this action against Alter Eco on behalf of herself, similarly-situated Class Members, and the general public to enjoin Alter Eco from deceptively marketing the product, and to recover compensation for injured Class Members. Alter Eco Americas Inc. produces food products. The Company operates an online stores that offers chocolates, coconut clusters, truffles, quinoa, sugar, cacao, and rice. Alter Eco Americas serves customers worldwide.[BN] The Plaintiff is represented by: Jack Fitzgerald, Esq. Paul K. Joseph, Esq. Melanie Persinger, Esq. Trevor M. Flynn, Esq. Caroline S. Emhardt, Esq. FITZGERALD JOSEPH LLP 2341 Jefferson Street, Suite 200 San Diego, CA 92110 Telephone: (619) 215-1741 E-mail: jack@fitzgeraldjoseph.com paul@fitzgeraldjoseph.com melanie@fitzgeraldjoseph.com trevor@fitzgeraldjoseph.com caroline@fitzgeraldjoseph.com ALTERRAON PHILLIPS: Arnstein Seeks Class Certification ------------------------------------------------------ In the class action lawsuit captioned as CHARLOTTE ELIZABETH ARNSTEIN, et al., on behalf of themselves and all others similarly situated, v. ALTERRAON PHILLIPS, ESQ. And APLAW LLC, a Florida limited liability corporation, Case No. 9:21-cv-82516-AMC (S.D. Fla.), the Plaintiff Arnstein asks the Court to enter an order: 1. certifying a class of: "All individual or entities who are or were condominium unit owners at The Sterling Villages of Palm Beach Lakes Condominium Association, Inc. (a) to whom the Defendants sent collection letters dated between December 20, 2021 and the present; or (b) whose condominium units were the subjects of liens the Defendants recorded in the Official Records of Palm Beach County on October 14, 2021, November 19, 2021, or April 19, 2022; or (c) who were defendants in lawsuits the Defendants filed in the County Court of Palm Beach County between December, 2021 and the present; or (d) who sold their Sterling condominiums between December 20, 2019 and the present, and received an estoppel certificate from the Defendants related to the sale of the condominium. 2. appointing her as class representatives; and 3. appointing Steven H. Meyer as class counsel. This is a putative class action brought under 15 U.S.C. section 1692, et seq., known as the Fair Debt Collection Practices Act (FDCPA) and Chapter 559, Fla. Stat., et seq., known as the Florida Consumer Collection Practices Act (FCCPA). The Plaintiffs request that the Court certify this action as a class action pursuant to Rule 23, Fed.R.Civ.P., appoint them as class representatives, and appoint their counsel as class counsel. The Plaintiffs all own or formerly owned condominium units in The Sterling Villages of Palm Beach Lakes Condominium Association, Inc., a residential condominium association in the City of West Palm Beach, Florida. A copy of the Plaintiff's motion dated Jan. 15, 2022 is available from PacerMonitor.com at http://bit.ly/3XgV4sbat no extra charge.[CC] The Plaintiff is represented by: Steven H. Meyer, Esq. STEVEN H. MEYER, P.A. 401 West Fairbanks Avenue, Suite 100 Winter Park, FL 32751 Telephone: (407) 289-0803 E-mail: steven@thefirm.legal ALTICOR INC: Faces Class Suit Over Retirement Plan Mismanagement ---------------------------------------------------------------- Matthew Miller at mlive.com reports that a group of retirees is suing Amway's parent company, Alticor Inc., alleging that the company mismanaged a retirement plan, offering investment options with unusually high fees and failing to remove underperforming funds or explore less costly, better performing alternatives. The lawsuit, filed in 2020 in U.S. District Court for the Western District of Michigan, has already survived two attempts by the Ada-based corporation to dismiss the case. The plaintiffs are now asking U.S. District Judge Paul Maloney to certify it as a class action, saying the pool of current and former employees impacted could be more than 5,000 people. They are alleging that the Amway Retirement Savings Plan "suffered millions of dollars of losses due to excessive costs and lower net investment returns," as a direct result of the company's mismanagement, according to the complaint. They have asked the court to order Alticor "to make good to the Plan all losses to the Plan resulting from Defendants' breaches of their fiduciary duties." Amway said in a statement released that "This litigation is part of a nationwide wave of hundreds of cases filed that target large companies with sizable 401k plans. "We believe the suit is without merit and are in the process of defending it," the company said. Don Reavey, an attorney with the Harrisburg, Pa., law firm Capozzi Adler who is representing the plaintiffs, declined to comment beyond what has been submitted in court documents. The retirement plan includes employees from Alticor as well as several subsidiaries, including Amway Corp., Amway International, Amway Management Services, Amway Global Services, Access Business Group, Pyxis Innovations, Access Logistics, ABGI Corp., Merchandising Productions and Trout Lake Farm. The plaintiffs argue that the retirement plan, which manages assets of well over $1 billion, is one of the largest in the U.S. but hasn't used the bargaining power that comes along with its size to reduce the fees and expenses charged against participants' investments. Instead, the annual recordkeeping fees sometimes exceeded $300 per participant when those fees for similar plans were closer to $35 per person, they said, and many of the plan's investment funds had high management fees, noting that "in some cases, expense ratios for the Plan's funds were 246% above the [Investment Company Institute] Median." Plan administrators also failed to remove five underperforming funds, the plaintiffs said. Alticor has denied any wrongdoing. It argued in a motion to dismiss the case filed in 2021 that the complaint is "is a cut-and-paste copy of a standard pleading filed nationwide. "Plaintiffs' counsel filed at least forty similar class action lawsuits in 2020 and 2021, alleging the same claims regardless of the plan's investment options, process, or design," they said. Maloney rejected that argument, saying "There is no rule against hiring counsel that specialize in one cause of action or type of lawsuit, and the Court declines to dismiss the complaint on this ground alone." Alticor argued further that the plaintiffs had based their arguments on imperfect comparisons between investment funds, that nothing in the Employee Retirement Income Security Act of 1974 requires the company to offer a specific mix of investment options and that the company did ultimately swap a higher-cost fund for a lower-cost one. But, in denying the first motion to dismiss, and he would stick to the same logic in the second denial, Maloney said some of the disagreements on the facts of the case - for example, on whether the less expensive investment funds noted by the plaintiffs were really comparable to the ones offered by the retirement plan - would be better adjudicated later in the process. The "bigger picture," he wrote, is the plaintiff's allegation that Alticor "was not reviewing the Plan's options regularly, not acting in the best interest of Amway's employees, and using higher-cost vehicles to pay for revenue sharing. "Taken together, Plaintiffs plausibly allege that the Committee breached its duty of prudence," he said, "so the motion to dismiss Count I will be denied." Maloney has not yet ruled on the whether to certify the case as a class action. A settlement conference in the case has been set for November of this year, with a bench trial scheduled for January of 2024. [GN] AMERICAN HONDA: Court Narrows Claims in Quackenbush Suit -------------------------------------------------------- In the class action lawsuit captioned as MARY QUACKENBUSH, MARISSA FEENEY, and ANNE PELLETTIERI, on behalf of themselves and all others similarly situated, v. AMERICAN HONDA MOTOR COMPANY, INC., and HONDA MOTOR COMPANY, LTD., a Japanese Corporation, Case No. 3:20-cv-05599-WHA (N.D. Cal.), the Hon. Judge William Alsup entered an order resolving the defendants' summary judgment motion as follows: (1) Feeney's and Pellettieri's individual implied warranty claims are dismissed; (2) Quackenbush's individual implied warranty claim under Section 2314 is dismissed; (3) the Illinois New and Used Purchaser Class's fraudulent omission and ICFA claims are dismissed; This order is persuaded by In re General Motors' holding that where the injury has not and will not manifest for a large majority of the class, it makes little sense to allow a damage calculation based on the cost of repair. The Defendants attempt to resolve all class and individual plaintiffs' claims by globally arguing that there is in fact no safety-related defect. American Honda develops and manufactures automobiles. A copy of the Court's order dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3WfMet9 at no extra charge.[CC] ARKK FOOD: Counts Sues Over Mislabeled Wahlburgers Pickles ---------------------------------------------------------- KYLE COUNTS, individually and on behalf of all others similarly situated, Plaintiff v. ARKK FOOD COMPANY, a Michigan corporation and WAHLBURGERS I, LLC, a Massachusetts limited liability company, Defendants, Case No. 1:23-cv-00236 (N.D. Ill., Jan. 16, 2023) is a class action against the Defendants for unjust enrichment and violations of the Illinois Consumer Fraud and Deceptive Practices Act and State Consumer Fraud Acts. This is a class action lawsuit regarding Defendants' manufacturing, distribution, advertising, marketing, labeling, distribution, and sale of Wahlburgers pickles that are sold in grocery stores nationwide and marketed as, among other things, "fresh," "all natural," and containing "no preservatives." Unfortunately for all reasonable consumers, including Plaintiff, these claims are false and misleading, says the suit. Had Defendants not made the false, misleading, and deceptive representations and omissions alleged herein regarding the Pickles, the Plaintiff would not have been willing to purchase the Pickles. Accordingly, Plaintiff was injured and lost money due to Defendants' mislabeling and deceptive conduct, the suit asserts. Arkk Food Company is in the business of creating and producing food products and is the distributor for Wahlburgers Pickles and the exclusive licensee of Wahlburgers' retail products.[BN] The Plaintiff is represented by: Kevin Laukaitis, Esq. LAUKAITIS LAW FIRM LLC 737 Bainbridge Street #155 Philadelphia, PA 19147 Telephone: (215) 789-4462 E-mail: klaukaitis@laukaitislaw.com - and - Michael R. Reese, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Telephone: (212) 643-0500 E-mail: mreese@reesellp.com AUTOFAIR INC: Class Settlement Approval in Chechowitz Suit Affirmed ------------------------------------------------------------------- In the case, ALEXIS CHECHOWITZ & others v. AUTOFAIR, INC., & another, Case No. 22-P-40 (Mass. App.), the Appeals Court of Massachusetts affirms the order of a Superior Court judge approving the settlement of a class action lawsuit. Chechowitz and others similarly situated brought a class action lawsuit in Middlesex Superior Court against Defendants-appellees Autofair and Haverhill Ford, LLC, alleging claims for unpaid wages. Ryan Daly, David C. Thomas, Paul T. Silva, and Diane Ingram (collectively, the Objectors), who are four members of the class of former sales employees of the Defendants, learned of the class action and brought a similar action in Essex Superior Court. The Objectors then initiated arbitration of their claims against the Defendants. Meanwhile, the Plaintiffs and the Defendants negotiated a settlement of the Middlesex Superior Court class action. On the Defendants' motions, the four arbitrators stayed the arbitrations of the Objectors' claims on the grounds that the settlement of the Middlesex class action would, if approved, resolve those claims. In Middlesex Superior Court, the Plaintiffs moved for preliminary approval of the class action settlement, as amended, assented to by the Defendants. The Objectors moved to intervene, pursuant to Mass. R. Civ. P. 24, 365 Mass. 769 (1974). After a hearing, a judge (first judge) denied the motion to intervene, noting that the lawyers for the Objectors are positioned for larger fees if they can stay the lawsuit and complete their clients' arbitrations, but that is not a factor for consideration in the intervention analysis. On June 1, 2021, the first judge allowed the motion for preliminary approval of the class settlement and certified the class, noting that the requirements of Mass. R. Civ. P. 23(a), as amended, 471 Mass. 1491 (2015), are well-established and uncontested. The Objectors did not appeal. Also on June 1, 2021, the Objectors filed in Federal District Court an action for declaratory and injunctive relief, seeking to compel the Defendants to arbitrate their claims and to enjoin the Defendants from settling the Middlesex class action. A District Court judge denied relief, concluding that the Objectors were seeking to stay the Plaintiffs' class action in favor of their own individual arbitrations, but the arbitrators had ruled that the claims raised in arbitration would be resolved by settlement of the class action. The Objectors appealed to the Court of Appeals for the First Circuit, but then stipulated to dismissal of the appeal. In Middlesex Superior Court, the Plaintiffs moved pursuant to Mass. R. Civ. P. 23(c) for final approval of the class action settlement, assented to by the Defendants. The Objectors filed an objection to final approval of the settlement. After a hearing at which the Objectors' counsel was present, a second Superior Court judge approved the settlement. The Objectors appeal from that order. The Appeals Court begins by noting a procedural issue not briefed by the parties or the Objectors. None of the parties to the case filed any notice of appeal. Although the Objectors style themselves as appellants, they are not parties to the case in the trial court. In these circumstances, it may be questioned whether the Objectors have standing to bring the appeal. The Appeals Court need not pause to consider that issue, because in any event the Objectors' claims are meritless. The Objectors then argue that since their arbitration agreements mandated that the Defendants arbitrate their dispute, the Defendants were precluded from settling the class action with the Plaintiffs. The arbitration agreement states that the parties agree to submit to binding arbitration any dispute concerning the arbitrability of any controversy or claim. The Appeals Court holds that when the arbitrators stayed the four arbitration proceedings with each of the Objectors, they clearly contemplated that the class action in Superior Court might resolve the Objectors' claims, making further arbitration proceedings unnecessary. The arbitrators plainly interpreted the arbitration agreement to give them the power to stay the arbitrations pending that settlement. The Appeal Court defers to the arbitrators' interpretation of the arbitration agreement. It concludes that the judge did not abuse his discretion in determining that the settlement was in the best interests of the class as a whole, and in approving the final settlement. Autofair has requested that the Court awards it costs incurred in defending the appeal, pursuant to Mass. R. A. P. 26(a), as appearing in 481 Mass. 1655 (2019), and further requests that those costs be doubled on the grounds that the appeal was frivolous, pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). The Appeals Court agrees that such a remedy is appropriate. Consistent with the requirements of Fabre v. Walton, 441 Mass. 9, 10 (2004), Autofair may file a request for its costs, along with supporting documentation, within 14 days of the issuance of the decision in the case. The objectors will have 14 days thereafter within which to respond. Based on the foregoing, the Order dated Dec. 14, 2021, approving settlement of class action, is affirmed. A full-text copy of the Court's Jan. 18, 2023 Memorandum & Order is available at https://tinyurl.com/4jrk3cum from Leagle.com. AXA EQUITABLE: Court Denies Bid to Decertify Class in COI Suit -------------------------------------------------------------- In the case, IN RE AXA EQUITABLE LIFE INSURANCE COMPANY COI LITIGATION. This Document Relates to All Member Cases, Case No. 16-CV-740 (JMF) (S.D.N.Y.), Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York denies AXA's request for decertification. In this litigation, life insurance policyholders bring claims against AXA arising from an increase in the "cost of insurance" or "COI" -- a monthly charge deducted from the value of a policyholder's account -- on a subset of universal life insurance policies. Over two years ago, the Court granted the Plaintiffs' motion for class certification and certified two nationwide classes, a Policy-Based Claims Class and an Illustration-Based Claims Class, as well as a New York Sub-Class of the Illustration-Based Claims Class. The Illustration-Based Claims Class, as originally certified, was defined as: All individuals who, on or after March 8, 2016, owned an AUL II policy unaccompanied by a Lapse Protection Rider that was issued by AXA and subjected to the COI rate increase announced by AXA on or about Oct. 1, 2015, excluding defendant AXA, its officers and directors, members of their immediate families, and the heirs, successors or assigns of any of the foregoing, and the plaintiffs in the Related Actions. Last year, however, the Court ruled (on AXA's motion for partial reconsideration of a ruling largely denying the parties' cross-motions for summary judgment) that Wells Fargo, the registered owner of many of the life insurance policies at issue, lacks standing to pursue the illustration-based claims. It ordered supplemental briefing on whether, in light of that ruling, the Illustration-Based Claims Class should be decertified or modified. The Plaintiffs argue that the class should be modified to substitute the underlying entitlement holders for the registered owners that are securities intermediaries. AXA contends that the class must be decertified. Judge Furman agrees with the Plaintiffs. He says most if not all of AXA's arguments in favor of decertification proceed from a single premise: that, following TransUnion v. Ramirez, 141 S.Ct. 2190 (2021), the class cannot remain certified because at least some of the entitlement holders lack Article III standing. That premise is wrong. In TransUnion, the Supreme Court held that every class member must have Article III standing in order to recover individual damages. But it explicitly declined to address the distinct question whether every class member must demonstrate standing before a court certifies a class. Thus, TransUnion did not alter the well-established law in this Circuit -- reaffirmed by the Court of Appeals only a few months ago -- that standing in a class action is satisfied so long as at least one named plaintiff can demonstrate the requisite injury, and that "each member of a class" need not "submit evidence of personal standing" to certify a class that meets Rule 23's requirements. To be sure, modifying the class definition will require some additional discovery and, to that extent, granting the Plaintiffs' request would prejudice AXA. But, Judge Furman opines that the resulting prejudice would not be enough to warrant the "extreme step" of decertification. In the near term, the discovery required is likely to be limited. In the longer term, more substantial discovery may be required, but, again, the difference is one of degree, not kind. Moreover, such discovery could arguably be deferred until after trial on the common questions, in no small part because the outcome of such a trial (or a settlement) may moot the need for such discovery altogether. For the foregoing reasons, Judge Furman denies AXA's request for decertification. Instead, he modifies the Illustration-Based Claims Class to include: All individuals who, on or after March 8, 2016, are or were registered owners of an AUL II policy unaccompanied by a Lapse Protection Rider that was issued by AXA after July 10, 2006 and subjected to the COI rate increase announced by AXA on or about Oct. 1, 2015, unless the registered owner of such policy is a securities intermediary, in which case the securities intermediary is not a class member but the entitlement holder with respect to that policy is. The definition of the New York Illustration-Based Claims Sub-Class can and does remain the same: "all members of the Illustration-based Claims Class who reside in New York." The parties shall meet and confer and, within two weeks of the date of this Memorandum Opinion and Order, file a joint letter addressing (1) what, if any, discovery is needed in light of this ruling and a schedule for such discovery; (2) whether and how to provide renewed notice to the class; (3) whether, in light of this ruling, the parties adhere to their previous positions with respect to a trial plan and schedule; and (4) relatedly, whether trial of the class claims should be bifurcated into liability and remedies phases. The parties, including the remaining the Plaintiffs in the related individual actions, will then appear on Feb. 15, 2023, at 12:00 p.m. for a conference to discuss these and any other relevant issues, including settlement. Unless and until the Court orders otherwise, the conference will be held in person in Courtroom 1105 of the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, NY 10007. The Clerk of Court is directed to docket this in 16-CV-740, 17-CV-7751, 17-CV-4767, 17-CV-4803, and 18-CV-2111. A full-text copy of the Court's Jan. 17, 2023 Memorandum Order & Opinion is available at https://tinyurl.com/bdfk72fu from Leagle.com. BECTON & DICKINSON: Lead Plaintiff Files Class Certification Bid ---------------------------------------------------------------- In the class action lawsuit captioned as INDUSTRIENS PENSIONSFORSIKRING A/S, Individually and On Behalf of All Others Similarly Situated, v. BECTON, DICKINSON AND COMPANY, VINCENT A. FORLENZA, THOMAS E. POLEN, and CHRISTOPHER R. REIDY, Case No. 2:20-cv-02155-SRC-CLW (D.N.J.), the Lead Plaintiff Industriens Pensionsforsikring A/S asks the Court to enter an order: 1. certifying the action as a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3), on behalf of the following class: "all persons and entities who, from November 5, 2019 to February 5, 2020, inclusive (the "Class Period"), purchased or otherwise acquired Becton, Dickinson and Company ("BD") common stock or call options, or sold BD put options, and were damaged thereby (the "Class"); 2. appointing Industriens as Class Representative; and 3. appointing Kessler Topaz Meltzer & Check, LLP as Class Counsel and Carella, Byrne, Cecchi, Brody & Agnello, P.C. as Liaison Counsel for the Class. Becton & Dickinson is an American multinational medical technology company that manufactures and sells medical devices, instrument systems, and reagents. A copy of the Plaintiff's motion dated Jan. 17, 2022 is available from PacerMonitor.com at https://bit.ly/3iVtFwQ at no extra charge.[CC] The Lead Plaintiff is represented by: James E. Cecchi, Esq. Donald A. Ecklund, Esq. CARELLA BYRNE CECCHI BRODY & AGNELLO, P.C. 5 Becker Farm Road Telephone: (973) 994-1700 Facsimile: (973) 994-1744 E-mail: jcecci@carellabyrne.com decklund@carellabyrne.com - and - Sharan Nirmul, Esq. David A. Bocian, Esq. Joshua E. D’Ancona, Esq. Vanessa M. Milan, Esq. Nathaniel C. Simon, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: snirmul@ktmc.com dbocian@ktmc.com jdancona@ktmc.com vmilan@ktmc.com nsimon@ktmc.com BESHAY FOODS: Fails to Provide Proper Meal & Rest Breaks, Suit Says ------------------------------------------------------------------- The San Diego employment law attorneys, at Blumenthal Nordrehaug Bhowmik De Blouw LLP, filed a class action complaint alleging that Beshay Foods, Inc. violated the California Labor Code. The Beshay Foods, Inc. class action lawsuit, Case No. 37-2023-00000327-CU-OE-CTL, is currently pending in the San Diego County Superior Court of the State of California. According to the class action complaint, the company's non-exempt employees were allegedly unable to take off-duty meal breaks due to their rigorous work schedules. California labor laws require an employer to provide an employee required to perform work for more than five (5) hours during a shift with, a thirty (30) minute uninterrupted meal break prior to the end of the employee's fifth (5th) hour of work and a second uninterrupted meal break when employees are required to work ten (10) hours. The Complaint claims that the company did not provide their employees who forfeited meal breaks additional compensation. The Complaint further claims Beshay Foods, Inc. failed to pay employees their accurate sick pay wages, which violates California Labor Code Section 246. Employees routinely earned non-discretionary incentive wages which increased their regular rate of pay. However, when paid sick pay wages, it was allegedly paid at the base rate of pay rather than the higher regular rate of pay. For more information about the class action lawsuit against Beshay Foods, Inc., call (800) 568-8020 to speak to an experienced California employment attorney today. Blumenthal Nordrehaug Bhowmik De Blouw LLP is an employment law firm with offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside and Chicago that dedicates its practice to helping employees, investors and consumers fight back against unfair business practices, including violations of the California Labor Code and Fair Labor Standards Act. If you need help in collecting unpaid overtime wages, unpaid commissions, being wrongfully terminated from work, and other employment law claims, contact one of their attorneys today. [GN] BMW OF NORTH AMERICA: Loses Bid to Consolidate Kavon & Burbank --------------------------------------------------------------- In the class action lawsuit captioned as ADAM KAVON, ERIN CAMDEN, DAVID VENNER, CRAIG GELLER, on behalf of themselves and all others similarly situated, v. BMW OF NORTH AMERICA, LLC, Case No. 2:20-cv-15475-KM-ESK (D.N.J.), the Hon. Judge Edward S. Kiel entered an order denying the the Defendant BMW of North America, LLC's (BMW) renewed motion to consolidate: -- Kavon v. BMW of North America, LLC, Case No. 20-cv-15475, with Burbank v. BMW of North America, LLC, Case No. 21-cv-01711 under a single complaint. Kavon and Burbank shall continue to be consolidated for purposes of discovery and case management. The current procedural posture of Kavon and Burbank is significantly different from when the Initial Consolidation Motion was pending. Since Burbank involves a claim for the express breach of warranty, whereas Kavon does not, Burbank is no longer completely subsumed within Kavon. In opposition to the Initial Consolidation Motion, the Burbank Plaintiff had expressed concern that the Kavon Plaintiffs would not be committed to maintaining a truly separate California subclass. This concern arose from the Kavon Plaintiffs pleading the California subclass in the alternative just three days before BMW's filing of the Initial Consolidation Motion and only in the event that the Kavon Plaintiffs' preferred nationwide class was denied. The Burbank Plaintiff had claimed that the Kavon Plaintiffs added the California subclass purely to aid the Initial Consolidation Motion and worried that California class members would be ill-served by a nationwide class because California law offers remedies superior to the MMWA. The Burbank Plaintiff's concern for the state law claims being "second in line" to the nationwide claims no longer exists. However, the Burbank Plaintiff's apprehension over the Kavon Plaintiffs' insistence that they will not consider his express warranty claim less-worthy of prosecution should not be brushed aside. There may be duplicative briefing at the class-certification and summary judgment stages and slightly more inefficiency in proceeding with two complaints consolidated for case management and discovery purposes. This, however, does not outweigh the California subclass's potential prejudice from being bunched together with different claims of other subclasses from different states. BMW initially moved to consolidate Kavon and Burbank through one complaint on March 26, 2021 (Initial Consolidation Motion). While the Kavon Plaintiffs did not oppose the Initial Consolidation Motion, the Burbank Plaintiff specified that he opposed full consolidation but consented to consolidation for discovery and case management purposes only. The Court found Kavon and Burbank to be "nearly identical class action cases." However, since a question as to the viability of the nationwide class in Kavon existed at that juncture, I determined that "any consideration of consolidating the parties' complaints for all purposes should await resolution of BMW's [anticipated] motion to dismiss." BMW of North America is a automotive company that manufactures luxury and performance vehicles. A copy of the Court's order dated Jan. 17, 2022 is available from PacerMonitor.com at https://bit.ly/3Xp3EF8 at no extra charge.[CC] BMW OF NORTH AMERICA: Loses Bid to Consolidate Kavon, Burbank Suits ------------------------------------------------------------------- Magistrate Judge Edward S. Kiel of the U.S. District Court for the District of New Jersey denies BMW's renewed motion to consolidate the cases, ADAM KAVON, ERIN CAMDEN, DAVID VENNER, CRAIG GELLER, on behalf of themselves and all others similarly situated, Plaintiffs v. BMW OF NORTH AMERICA, LLC, Defendant; and WILLIAM MARTIN BURBANK, individually and on behalf of all thers similarly situated, Plaintiff v. BMW OF NORTH AMERICA, LLC, Defendant, Case Nos. 20-cv-15475-KM-ESK, 21-cv-01711-KM-ESK (D.N.J.), under a single complaint. BMW initially moved to consolidate Kavon and Burbank through one complaint on March 26, 2021. While the Kavon Plaintiffs did not oppose the Initial Consolidation Motion, the Burbank Plaintiff specified that he opposed full consolidation but consented to consolidation for discovery and case management purposes only. Judge Kiel found Kavon and Burbank to be "nearly identical class action cases." However, since a question as to the viability of the nationwide class in Kavon existed at that juncture, he determined that any consideration of consolidating the parties' complaints for all purposes should await resolution of BMW's anticipated motion to dismiss. BMW filed its motions to dismiss Kavon and Burbank on Aug. 30, 2021. On March 21, 2022, Judge Kevin McNulty resolved BMW's motion to dismiss Burbank and dismissed only the breach of the implied covenant of good faith and fair dealing claim. Judge McNulty otherwise preserved the Burbank Plaintiff's claims under California law for: (1) injunctive relief under the California Legal Remedies Act; (2) breach of express warranty under the Song-Beverly Consumer Warranty Act (SBA); (3) breach of implied warranty under the SBA; and (4) fraud under the California Legal Remedies Act and Unfair Competition Law. On June 3, 2022, Judge McNulty resolved BMW's motion to dismiss Kavon. Relevant to the Motion, Judge McNulty dismissed the claims for: (1) a nationwide class under the Magnuson-Mass Warranty Act (MMWA); (2) a nationwide class and California subclass for breach of the covenant of good faith and fair dealing; and (3) breach of express warranty under California law. He permitted various state based class claims to proceed, including claims for breach of the implied warranty under the SBA for the California subclass. As it stands, the Burbank Plaintiff's breach of express warranty claim is alive, while the Kavon Plaintiffs' same claim was dismissed. The difference in outcomes on the motions to dismiss stems from the Burbank Plaintiff plausibly alleging, and the Kavon Plaintiffs failing to plausible allege, a "nonconformity" under the SBA. BMW makes a multifaceted argument for consolidation. First, it argues that consolidating Kavon and Burbank under a single complaint is the only way to advance the goals of streamlined pre-trial proceedings. The Burbank Plaintiff argues that avoiding duplicate filings does not justify consolidation and suggests that a consolidated briefing schedule is an easier means to resolve BMW's concerns. BMW also argues that because the proposed consolidation is neither permanent nor irreversible and the claims that are left to be tried (if any) can be separated and tried separately, the Burbank Plaintiff will suffer no prejudice. The Burbank Plaintiff argues that full consolidation poses a risk of undue confusion and prejudice. Finally, BMW argues that since the nationwide class claims in Kavon are now dismissed, the Burbank Plaintiff's California law claims are no longer second in line to the Kavon Plaintiffs' nationwide class ambitions. The Burbank Plaintiff argues that since the nationwide class in Kavon has been dismissed, the issue as to whether the Kavon Plaintiffs can sufficiently represent the Burbank Plaintiff is more pronounced than ever. Judge Kiel opines that while there may be substantial similarities between Kavon and Burbank, the Burbank Plaintiff's concern as to the significant difference between the cases is not unreasonable. Furthermore, to the extent there may be some inefficiency for briefing at the class-certification and summary judgment stages, he is confident, with the counsels' input, the briefing will not pose an excessive burden on the Court. He points out that the denial of the Motion is neither permanent nor irreversible. After the resolution of the anticipated motions for summary judgment and class certification, the Court may revisit whether it is advisable to consolidate these actions into a single complaint. For these reasons, Judge Kiel denies the Motion. Kavon and Burbank will continue to be consolidated for purposes of discovery and case management. An appropriate order accompanies Judge Kiel's Opinion. A full-text copy of the Court's Jan. 17, 2023 Opinion is available at https://tinyurl.com/2cjnuz9t from Leagle.com. BOEHRINGER INGELHEIM: Bacher Suit Moved to Connecticut Super. Court ------------------------------------------------------------------- In the case, BETH BACHER, et al., Plaintiffs v. BOEHRINGER INGELHEIM PHARMACEUTICALS, INC., et al., Defendants, Case No. 3:22-cv-01432 (JAM) (D. Conn.), Judge Jeffrey Alker Meyer of the U.S. District Court for the District of Connecticut grants the Plaintiffs' motion to remand to state court. The action is one of nine separate lawsuits involving highly similar personal injury claims by a total of more than 800 plaintiffs against several companies that manufacture or distribute a pharmaceutical product known as Zantac. All nine of the actions were initially filed during the Summer of 2022 in the Connecticut Superior Court for the Judicial District of Danbury, and each action includes somewhere between 80 to 99 plaintiffs. In the Fall of 2022, the counsel for the Plaintiffs and for one of the Defendants communicated with respect to the Plaintiffs' proposal to file a motion to consolidate the actions and for transfer of the actions to the specialized Complex Litigation Docket ("CLD") of the Connecticut Superior Court. On Oct. 21, 2022, the defense counsel wrote to the Plaintiffs' counsel that it appears all the Defendants are comfortable with recommending: 1) Hartford and 2) Stamford under CLD. The Plaintiffs filed a motion in the Connecticut Superior Court for the Judicial District of Danbury to consolidate all nine actions. The motion stated that it was filed pursuant to Conn. Prac. Book Section 9-5 and set forth verbatim the following grounds: 1. These actions are all against the same Defendants. 2. All of the actions involve the same legal claims sounding in product liability related to the heartburn medication Zantac. 3. It is likely that issues raised in any one of the cases could impact the other cases. 4. Consolidating these actions will allow for the court to manage all of them in an orderly and efficient manner. 5. Plaintiffs are filing similar consolidation motions in each of the above-listed actions. 6. All Defendants consent to this proposed consolidation. There is no record that the state court acted on the motion to consolidate. Instead, on Nov. 4, 2022, the chief administrative judge for the Connecticut Superior Court sua sponte issued an order conditionally ordering the transfer of the nine actions to the Complex Litigation Docket. But that transfer never happened because on Nov. 10, 2022, the Defendants filed notices of removal for all nine actions. The Plaintiffs in turn have moved to remand all of the actions to the Connecticut Superior Court. The Class Action Fairness Act ("CAFA") generally allows for federal jurisdiction over cases that qualify as a "mass action." As relevant in the present case, a "mass action" includes any civil action in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact. The Defendants invoked this "mass action" provision as grounds to remove the case and eight similar cases that the Plaintiffs initially filed in Connecticut state court. They filed their notices of removal after the Plaintiffs filed a motion in state court to consolidate all nine of the cases. The Defendants argue that by filing their motion to consolidate the Plaintiffs proposed a joint trial of the claims of more than 100 persons. The Plaintiffs do not agree. They have moved to remand, arguing that they proposed consolidation solely for the purpose of pre-trial case management and not for a joint trial. Judge Meyer finds that the Defendants have not carried their burden to show that there was a "mass action" to trigger federal jurisdiction under CAFA, because they have not shown that the Plaintiffs proposed a joint trial of their claims. Accordingly, there was no proper ground for the Defendants to remove the action. Therefore, he grants the Plaintiffs' motion to remand and denies as moot the Plaintiffs' motion for leave to withdraw and/or clarify their motion to consolidate. Judge Meyer will enter docket orders in the eight related cases adopting the result and reasoning of his ruling for the parallel motions to remand filed by the Plaintiffs in each case. Absent a timely motion for reconsideration or further court order, the Clerk of Court shall remand the action and the eight related actions in accordance with the timeline and procedures set forth by Rule 83.7 of the District of Connecticut Local Rules of Civil Procedure. A full-text copy of the Court's Jan. 17, 2023 Order is available at https://tinyurl.com/yvaw2w5k from Leagle.com. BOOKSY INC: Dominguez Suit Removed to S.D. Fla. ----------------------------------------------- The case styled DAVID DOMINGUEZ, individually and on behalf of all others similarly situated, Plaintiff v. BOOKSY, INC., Defendant, Case No. 2022-023360- CA-01, was removed from the Eleventh Judicial Circuit Court in and for Miami-Dade County, Florida to the United States District Court for the Southern District of Florida on January 13, 2023. The Clerk of Court for the Southern District of Florida assigned Case No. 1:23-cv-20158 to the proceeding. The Plaintiff's single-count complaint seeks relief from Defendant, on behalf of himself and a putative class of similarly situated persons, for allegedly making or causing to be made multiple text messages to Plaintiff and the putative class members from a number that was not capable of receiving inbound telephone calls or messages, and that these calls were sent without his consent, in violation of the Florida Telephone Solicitation Act. Booksy, Inc. designs and develops software solution.[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 BOSTON UNIVERSITY: Parties in Dutra Seek OK of Proposed Schedule ---------------------------------------------------------------- In the class action lawsuit captioned as Dutra v. Trustees of Boston University (RE: BOSTON UNIVERSITY COVID-19 REFUND LITIGATION), Case No. 1:20-cv-10827-RGS (D. Mass.), the Parties ask the Court to enter an order granting their proposed schedule for finalizing expert discovery, Plaintiffs' Motion for Class Certification, and the Parties' dispositive motions: Event Current Proposed Deadline Deadline Complete Expert Discovery Jan. 16, 2023 Feb. 2, 2023 Motion for Class N/A Feb. 27, 2023 Certification Dispositive Motions Feb. 6, 2023 Feb. 27, 2023 Opposition to Class N/A Mar. 20, 2023 Certification Oppositions to Dispositive Feb. 27, 2023 Mar.27, 2023 Motions Boston University is a private research university in Boston, Massachusetts. A copy of the Parties' motion dated Jan. 16, 2022 is available from PacerMonitor.com at https://bit.ly/3XEJwOW at no extra charge.[CC] The Plaintiffs are represented by: Shanon J. Carson, Esq. Patrick F. Madden, Esq. E. Michelle Drake, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 E-mail: scarson@bm.net pmadden@bm.net emdrake@bm.net - and - Harold L. Lichten, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston St, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 E-mail: hlichten@llrlaw.com - and - Conor B. McDonough, Esq. Kathryn Lee Boyd HECHT PARTNERS LLP 125 Park Avenue, 25th Floor New York, NY 10017 Telephone: (212) 851-6821 E-mail: cmcdonough@hechtpartners.com lboyd@hechtpartners.com - and - Roy T. Willey IV, Esq. Eric M. Poulin, Esq. ANASTOPOULO LAW FIRM, LLC 32 Ann Street Charleston, SC 29403 Telephone: (843) 614-8888 E-mail: Roy@akimlawfirm.com Eric@akimlawfirm.com - and - Richard E. Levine, Esq. STANZLER LEVINE, LLC 65 William Street, Suite 205 Wellesley, MA 02481 Telephone: (617) 482-3198 E-mail: RLevine@stanzlerlevine.com - and - Kristie LaSalle, Esq. Steve W. Berman, Esq. Daniel J. Kurowski, Esq. Whitney K. Siehl, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 55 Cambridge Parkway, Suite 301 Cambridge, MA 02142 Telephone: (617) 482-3700 E-mail: kristiel@hbsslaw.com steve@hbsslaw.com dank@hbsslaw.com whitneys@hbsslaw.com - and - Andrew Levetown, Esq. IVEY & LEVETOWN, LLP 6411 Ivy Lane, Suite 304 Greenbelt, MD 20770 Telephone: (703) 618-2264 E-mail: asl@iveylevetown.com - and - Michael C. Forrest, Esq. FORREST, LAMOTHE, MAZOW, MCCULLOUGH, YASI & YASI, P.C. BBO #681401 2 Salem Green, Suite 2 Salem, MA 01970 Telephone: (617) 231-7829 E-mail: mforrest@forrestlamothe.com - and - L. Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 N. California Blvd., Ste. 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 E-mail: ltfisher@bursor.com - and - Kathleen M. Sullivan, Esq. Crystal Nix-Hines, Esq. Shon Morgan, Esq. Marina Lev, Esq. Harvey Wolkoff, Esq. Alex H. Loomis, Esq. QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 S. Figueroa Street, 10th Floor Los Angeles, CA 90017 Telephone:: (213) 443-3000 E-mail: crystalnixhines@quinnemanuel.com kathleensullivan@quinnemanuel.com shonmorgan@quinnemanuel.com marinalev@quinnemanuel.com harveywolkoff@quinnemanuel.com alexloomis@quinnemanuel.com BP EXPLORATION: Wins Bid for Summary Judgment in Castleberry Suit ----------------------------------------------------------------- In the case, JACQUELINE CASTLEBERRY, ET AL. v. BP EXPLORATION & PRODUCTION, INC., ET AL., Section: D (1), Civil Action No. 17-4154 (E.D. La.), Judge Wendy 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 Plaintiffs' Expert, Dr. Jerald Cook; b. the Defendants' Motion for Summary Judgment; and c. dismisses the Plaintiffs' claims with prejudice. Before the Court is the Daubert Motion to Exclude 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. Plaintiffs Jacqueline Castleberry and Jancey Castleberry-Fort, individually and on behalf of her minor child, JJC, oppose both Motions. The Defendants have filed Replies in support of their Motions and Plaintiffs have filed a Supplemental Memorandum in Opposition to BP's Daubert Motion to Exclude. 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. The Plaintiffs opted out of the MSA and, accordingly, are B3 plaintiffs. The Plaintiffs filed this individual action against the Defendants on April 28, 2017 to recover for injuries allegedly sustained as a result of the oil spill. For approximately nine months in 2010 and 2011, Plaintiff Jacqueline Castleberry worked as a cleanup worker, tasked with cleaning up oil and oil-covered debris from the beaches and coastal areas in and around Dauphin Island and Bayou La Batre, Alabama. Jancey Castleberry-Fort alleges that she, and her minor child, JJC, were exposed to oil and dispersants for nine months when picking up her mother, Jacqueline Castleberry, from work in Bayou La Batre, Alabama. The Plaintiffs allege 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 them to suffer myriad injuries including abdominal cramps, abdominal pains, diarrhea, dizziness, headaches, eye burning, eye irritation, sinus or facial pain, nasal congestion, nasal discharge, throat irritation, chronic sinusitis, shortness of breath, wheezing, URI, skin itching, blurry vision, eye irritation, pleurisy, acute wheezy bronchitis, asthma, coughing, acute costochondritis, nausea, vomiting, skin rashes, allergic rhinitis, and anemia. Specifically, they seek 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 their claims that exposure to the chemicals present in the oil spilled by the Defendants caused their particular health symptoms, the Plaintiffs offer the report and testimony of Dr. 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 Plaintiffs' 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. 19, 2022. In their Motion in limine, they contend that Dr. Cook should be excluded from testifying due to, inter alia, Dr. Cook's failure to identify the harmful level of exposure capable of causing the Plaintiffs' particular injuries for each chemical that the Plaintiffs allege 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 Plaintiffs are unable to establish general causation through expert testimony, a necessary requirement under controlling Circuit precedent. The Plaintiffs oppose 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. The Court has previously considered the June 21, 2022 version of Dr. Cook's Report offered by the Plaintiffs, 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, Judge Vitter determines that the Plaintiffs have failed in their burden of establishing the reliability and relevance of their expert's report and finds it appropriate to grant the Defendants' Motion in limine to exclude Dr. Cook's Report. The Plaintiffs accordingly lack expert testimony on general causation. Without expert testimony, which is required to prove general causation, Judge Vitter holds that the Plaintiffs have failed to demonstrate a genuine dispute of material fact regarding their claims that their 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 the Defendants are entitled to judgment as a matter of law due to the Plaintiffs' failure to establish general causation. For these reasons, Judge Vitter grants the Defendants' Daubert Motions to Exclude and for Summary Judgment. She dismisses the Plaintiffs' claims against the Defendants with prejudice. A full-text copy of the Court's Jan. 17, 2023 Order & Reasons is available at https://tinyurl.com/3xzj3cwx from Leagle.com. BRAGG COMMUNITIES: Court Denies Bid to Dismiss Thomas Class Suit ---------------------------------------------------------------- In the case, SSG EZRA THOMAS, and RACHEL THOMAS, individually and as parents and guardians of E.T. and E.T., Plaintiffs v. BRAGG COMMUNITIES, LLC, et al., Defendants, Case No. 5:22-CV-226-D (E.D.N.C.), Judge James C. Dever, III, of the U.S. District Court for the Eastern District of North Carolina, Western Division, grants in part and denies in part the Defendants' motion to dismiss. On June 6, 2022, Plaintiffs Army Staff Sergeant Ezra Thomas and his wife, Rachel Thomas, individually and on behalf of their two children, E.T. and E.T., filed a complaint in this court alleging breach of warranty of habitability, violations of North Carolina's Unfair and Deceptive Trade/Practices Act ("UDTPA"), breach of contract, negligence, violation of Residential Lead-Based Paint Hazard Reduction Act, and temporary recurrent private nuisance against Defendants Bragg Communities, LLC, Corvias Management-Army, LLC, Bragg-Piceme Partners, LLC, and Corvias Construction, LLC. Thomas and his family moved into a rental residence on the United States military base at Fort Bragg in January 2013. The Defendants constructed, marketed, and maintained the residence. Upon move-in, the Plaintiffs discovered an infestation of box elder beetles in the residence and backyard. Over time, they noticed more defects in and around the residence. At some point, the Plaintiffs learned of lead paint in the residence, defective light switches that "crackled and popped" when plaintiffs attempted to use them, an outlet in the wall that exploded, defective windows that either would not open or would "slam shut like a guillotine," uncleaned HVAC air ducts, and mold feeding into the ventilation ducts, among other defects. When the Plaintiffs attempted to contact the Defendants to have them remedy these defects, the Defendants failed to remedy the problems or fixed them much later. As for the mold, the Defendants did not attempt to properly clean the mold. Instead, they simply painted over the wall. I Faced with the Defendants' repeated failure to maintain the rental residence, the Plaintiffs sought help from politicians and the Fort Bragg Garrison Commander. In 2019, they moved out of the residence. Upon moving out, an inspector came to the residence and noted mold around the air ducts and a lack of insulation in the attic. On Aug. 29, 2022, the Defendants moved to dismiss and filed a memorandum in support. On Sept. 19, 2022, the Plaintiffs responded in opposition. On Oct. 3, 2022, the Defendants replied. The Defendants argue that the applicable statutes of limitation bars all of the Plaintiffs' claims. The Plaintiffs respond that the Court should toll any applicable statute of limitations pursuant to the June 24, 2020 filing of the class action suit in Page v. Corvias Group, LLC, No. 5:20-CV-336, 2021 WL 4163562 (E.D.N.C. Sept. 21, 2021) (unpublished). In support, they cite American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), and its progeny. Under American Pipe, "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action. Judge Dever finds that the complaint is unclear about when the Plaintiffs discovered defects in the lighting and windows. It also is unclear about when they discovered the clogged HVAC duct. The complaint also alleges that the Plaintiffs did not discover the mold problems and lack of insulation until early 2019 when an inspector came to the residence. Therefore, because it is not apparent on the face of the complaint that the Plaintiffs discovered all alleged problems with the rental residence before the expiration of the statute of limitations, as tolled by Page, Judge Dever declines to dismiss all claims as time-barred. As for the Plaintiffs' Residential Rental Agreements Act ("RRAA") claim, the Defendants argue that the Plaintiffs' claim is time-barred and, alternatively, that to be actionable, purported violations of the RRAA must have existed during the limitations period. The Plaintiffs respond that the statute of limitations under the RRAA only limits the recovery period and does not bar their RRAA claim outright. Judge Dever finds that the Plaintiffs' RRAA claim is not time-barred, but the Plaintiffs are limited in their recovery to the three-year statute of limitations as tolled by the filing of Page. The complaint plausibly alleges that the residence was still in unacceptable condition within the statute of limitations period. Therefore, although the amount of recovery may be limited, Judge Dever declines to dismiss the Plaintiffs' RRAA claim. The Defendants argue that the four-year statute of limitations bars the Plaintiffs' UDTPA claim given that the marketing of the rental property to them occurred in 2012. The Plaintiffs respond that allegedly poor conditions existed during the limitations period and later unfair or deceptive acts, including the Defendants allegedly painting over the mold, are sufficient to maintain their UDTPA claim. Judge Dever finds that the Plaintiffs have plausibly alleged their UDTPA claim within the applicable four-year statute of limitations. Therefore, he declines to dismiss the Plaintiffs' UDTPA claim based on the four-year statute of limitations. The Defendants argue that the three-year statute of limitations bars the Plaintiffs' breach of contract claim. The Plaintiffs respond that a breach of contract claim can be timely if new acts or breaches occur within the limitations period or there are continuing violations. Judge Dever determines that the Defendants' initial failure to provide the Plaintiffs a residence "reasonably safe and habitable for occupancy" is not a continuing wrong. Accordingly, he dismisses any breach of contract claim based on defendants' initial failure to provide plaintiffs a residence reasonably safe and habitable for occupancy. Moreover, Judge Dever finds that the Plaintiffs have alleged that the Defendants were under a continuing contractual obligation to ensure timely maintenance of the residence, and the complaint alleges the Defendants' consistent failure to do so despite the Plaintiffs' continued requests. Thus, he says the Plaintiffs' breach of contract claim based on the Defendants' alleged failure to properly maintain the premises during the tenancy survives dismissal. The Defendants then argue that the three-year statute of limitations bars the Plaintiffs' negligence claim. In analyzing the Plaintiffs' negligence claim, Judge Dever again examines the continuing wrong doctrine. In Birtha v. Stonemor, N.C., LLC, 220 N.C. App. 286, 292, 727 S.E.2d 1, 7 (2012), the North Carolina Court of Appeals rejected applying the continuing wrong doctrine to a negligence claim where there was no claim of physical harm or property damage. In contrast to the negligence claim dismissed in Birtha, the Plaintiffs allege physical harm in their negligence claim. Thus, the motion to dismiss the Plaintiffs' negligence claim is denied. The Defendants also argue that the three-year statute of limitations bars the Plaintiffs' private nuisance claim. In support, they assert that the conditions giving rise to the private nuisance claim existed or were discoverable before the statute of limitations period, and, therefore, the claim is barred. The Plaintiffs respond that the statute of limitations functions only to limit the time window for damages. Judge Dever holds that because the Plaintiffs have alleged a continuing private nuisance within the statute of limitations period, as tolled by the Page class action, he declines to dismiss the Plaintiffs' private nuisance claim. The Defendants next argue that the Plaintiffs have failed to state a claim for temporary private nuisance. The Plaintiffs respond that their complaint adequately notifies all Defendants what the alleged conduct was and that the Court allowed a "materially similar" private nuisance claim to proceed in Page. Judge Dever agrees that the complaint only puts Bragg on notice for the private nuisance claim. Only Bragg has an ownership interest. The Plaintiffs' complaint does not link the other defendants to the ownership interest cited in their private nuisance claim. Therefore, Judge Dever dismisses the Plaintiffs' private nuisance claim against all Defendants except for Bragg. The Defendants contend that the Plaintiffs improperly pleaded punitive damages as a separate cause of action and that the Plaintiffs have not plausibly alleged sufficient facts to recover punitive nines. The Plaintiffs respond that the complaint sufficiently alleges facts for punitive damages against the corporate defendants and that the Court allowed a 'materially indistinguishable claim" to proceed in Page. Judge Dever finds that the Plaintiffs fail to plausibly allege that any of the Defendants' officers, directors, or managers were involved or condoned any of the aggravating factors alleged in the Plaintiffs' complaint. Therefore, they have not plausibly alleged facts sufficient to recover punitive damages under North Carolina law. Thus, their claim for punitive damages is dismissed. In sum, Judge Dever grants in part and denies in part the Defendants' motion to dismiss the Plaintiffs' complaint. A full-text copy of the Court's Jan. 17, 2023 Order is available at https://tinyurl.com/276k6pkz from Leagle.com. BRIDGEBIO PHARMA: SMART Local Appeals Suit Dismissal ---------------------------------------------------- Plaintiff SMART Local Unions and Councils Pension Fund filed an appeal from a court ruling entered in the lawsuit entitled SMART Local Unions and Councils Pension Fund, individually and behalf on behalf of others similarly situated v. BridgeBio Pharma, Inc., Ali Satvat, Neil Kumar, Uma Sinha, Case No. 2021-1030, in the Court of Chancery of the State of Delaware. The lawsuit is brought over Defendants' alleged breach of fiduciary duties. The Plaintiff seeks a review of the December 29, 2022 Memorandum Opinion entered by the Honorable Vice Chancellor Paul A. Fioravanti, Jr., of the Court of Chancery of the State of Delaware, granting Defendants' motion to dismiss the case with prejudice. The appellate case is captioned as SMART LOCAL UNIONS AND COUNCILS PENSION FUND, on behalf of itself and all other similarly situated former stockholders of EIDOS THERAPEUTICS, INC. Plaintiff Below, Appellant v. BRIDGEBIO PHARMA, INC., NEIL KUMAR, ALI SATVAT, and UMA SINHA, Defendants Below, Appellees, Case No. 13,2023, in the Supreme Court of the State of Delaware, filed on Jan. 13, 2023.[BN] Plaintiff-Appellant SMART Local Unions and Councils Pension Fund is represented by: Thomas Curry, Esq. Tayler D. Bolton, Esq. SAXENA WHITE P.A. 824 N. Market Street, Suite 1003 Wilmington, DE 19801 Telephone: (302) 485-0483 - and - Gregory V. Varallo, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 500 Delaware Avenue, Suite 901 Wilmington, DE 19801 Telephone: (302) 364-3601 - and - David Wales, Esq. SAXENA WHITE P.A. 10 Bank Street, 8th Floor White Plains, NY 10606 Telephone: (914) 437-8551 - and - Adam Warden, Esq. Jonathan Lamet, Esq. SAXENA WHITE P.A. 7777 Glades Road, Suite 300 Boca Raton, FL 33434 Telephone: (561) 394-3399 - and - Mark Lebovitch, Esq. Christopher J. Orrico, Esq. Margaret Sanborn-Lowing, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 554-1400 - and - Jeremy Friedman, Esq. David Tejtel, Esq. FRIEDMAN OSTER & TEJTEL PLLC 493 Bedford Center Road, Suite 2D Bedford Hills, NY 10507 Telephone: (888) 529-1108 Defendants-Appellees BridgeBio Pharma, Inc., Neil Kumar, Ali Satvat, and Uma Sinha are represented by: Cliff C. Gardner, Esq. Ryan M. Lindsay, Esq. Andrew D. Kinsey, Esq. Mallory V. Phillips, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Rodney Square 920 N. King Street Wilmington, DE 19801 CALIFORNIA: Judge Recommends Denial of Wilson's Bid for Class Cert. ------------------------------------------------------------------- In the case, DAVID W. WILSON, Plaintiff v. STUART SHERMAN, et al., Defendants, Case No. 1:22-cv-00874 JLT SKO (PC) (E.D. Cal.), Magistrate Judge Sheila K. Oberto of the U.S. District Court for the Eastern District of California recommends that the Plaintiff's motion for class certification be denied. Wilson is appearing pro se and in forma pauperis in the civil rights action brought pursuant to 42 U.S.C. Section 1983. On Aug. 25, 2022, the Plaintiff filed a motion for certification of class, citing Fed. R. Civ. P. 23(a). He contends his complaint against "B-Facility, California Substance Abuse Treatment Facility, exceeds 40 individuals and more will be asked to Sign." The complaint concerns "on-going imminent danger of inadequate" cooling, ventilation and circulation, and the presence of black mold and black dust, at the prison facility. The Plaintiff contends because California Department of Corrections and Rehabilitation (CDCR) denies question of law or fact common to the Class members and the Plaintiff, denies the 'typicality' requirements grievance "'Group Class,'" certification is appropriate. He attaches as exhibits a copy of an "Inmate/Parolee Group Appeal," CDCR 602-G bearing the signatures of dozens of inmates housed in the B-Facility and related grievance documents in support of his motion. Judge Oberto states that a party requesting class certification must demonstrate that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. The Plaintiff is not an attorney and is proceeding without counsel. As a prisoner proceeding pro se, Judge Oberto holds that the Plaintiff is unable to satisfy the above prerequisites. Regarding the fourth prerequisite, it is well established that pro se prisoner plaintiffs are unable to fairly represent and adequately protect the interests of a class, as required by Fed. R. Civ. P. 23(a)(4). Accordingly, even assuming, arguendo, that the Plaintiff met the first three prerequisites for class certification -- numerosity, commonality and typicality -- the Plaintiff cannot meet all prerequisites because he cannot fairly and adequately protect the interests of the class. For these reasons stated, Judge Oberto recommends that the Plaintiff's motion for class certification be denied. These Findings and Recommendations will be submitted to the district judge assigned to the case, pursuant to 28 U.S.C. Section 636(b)(1). Within 14 days of the date of service of these Findings and Recommendations, a party may file written objections with the Court. The document should be captioned, "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may result in waiver of rights on appeal. A full-text copy of the Court's Jan. 18, 2023 Findings & Recommendations is available at https://tinyurl.com/rkh2vm55 from Leagle.com. CANADA: Agrees to Settle Indian Residental Schools' Suit for $2.8-B ------------------------------------------------------------------- Karen Graham at digitaljournal.com reports that the Canadian government has agreed to settle a class-action lawsuit in the amount of $2.8 billion in reparations over the loss of language and culture brought on by Indian residential schools. The agreement, between the Canadian government and 325 First Nations still has to be approved by a Federal Court before it can be disbursed to recipients, who filed the claim for collective compensation in 2012 as part of a broader class action known as the Gottfriedson case. The $2.8 billion settlement money will be put into a new trust fund that will operate for 20 years if the court approves the deal. According to officials, the fund will be run independently of the federal government, reports CBC Canada. Also, according to the agreement, the fund organization will be governed by a board of nine Indigenous directors, of whom Canada will choose one. "While settlements like those announced today . . . . do not make up for the past, what it can do is address the collective harm caused by Canada's past," said Marc Miller, the minister for Crown-Indigenous relations, at a Vancouver event. "The loss of language, the loss of culture and heritage." Miller noted that this was the first time bands specifically were being compensated, with the funds set to support the four pillars of revival, protection, promotion, and wellness of Indigenous languages and cultures. The finished Agreement states "the band class members agreed to fully, finally, and forever release the Crown from claims that could conceivably arise from the collective harms residential schools inflicted on First Nations, as alleged in a previous court filing." This legal release would not cover or include any claims that may arise over children who died or disappeared while being forced to attend residential school, the agreement says.[GN] CCFI LLC: Zanabria Labor Suit Removed to E.D. Cal. -------------------------------------------------- The case styled KARINA ZANABRIA, on behalf of herself and all others similarly situated, Plaintiff v. CCFI, LLC, a Delaware limited liability company; CCFI COMPANIES, LLC, a Delaware limited liability company; and DOES 1 to 10, inclusive, Defendants, Case No. 22CV03954, was removed from the Superior Court of the State of California, Merced County, to the United States District Court for the Eastern District of California on January 18, 2023. The Clerk of Court for the Eastern District of California assigned Case No. 1:23-cv-00077-ADA-BAM to the proceeding. In the complaint, Plaintiffs allege, on behalf of themselves and all others similarly situated, six total causes of action, five of which are for various violations of the California Labor Code, and one for "Unfair Competition" under the California Business & Professions Code. CCFI, LLC provides consumers with consumer financial products and services.[BN] The Defendants are represented by: Michael J. Nader, Esq. Alexandra M. Asterlin, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 500 Capitol Mall, Suite 2500 Sacramento, CA 95814 Telephone: (916) 840-3150 Facsimile: (916) 840-3159 E-mail: michael.nader@ogletree.com alexandra.asterlin@ogletree.com CEREBRAL INC: 1st Amended Debono Suit Dismissed With Leave to Amend ------------------------------------------------------------------- In the case, CHERIE DEBONO, et al., Plaintiffs v. CEREBRAL INC., Defendant, Case No. 22-cv-03378-AGT (N.D. Cal.), Magistrate Judge Alex G. Tse of the U.S. District Court for the Northern District of California grants Cerebral's motion to dismiss the Plaintiffs' first amended class action complaint with leave to amend. The Plaintiffs allege that Cerebral violated multiple provisions of California's Automatic Renewal Law (ARL) by not adequately disclosing the company's subscription and cancellation terms. The ARL doesn't include a private right of action. But consumers may bring claims to enforce the ARL under California's Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumer Legal Remedies Act (CLRA). To do so, however, consumers cannot simply allege an ARL violation; they must also allege that the violation injured them, Judge Tse holds. He says the named Plaintiffs haven't satisfied this second requirement. They point to potential ARL shortcomings on Cerebral's subscription sign-up page (e.g., an allegedly incomplete description of Cerebral's cancellation policy, an alleged failure to clearly and conspicuously present Cerebral's automatic renewal terms), but they don't explain how they were harmed by those shortcomings. Because the Plaintiffs haven't plausibly alleged that they were harmed by an ARL violation, their ARL-predicated claims fall short. The Plaintiffs also seek to sue Cerebral for engaging in non-ARL-predicated deceptive and unfair practices under the UCL, FAL, and CLRA. These claims also are not well pleaded, says Judge Tse. He finds that (i) the Plaintiffs don't allege that they had difficulty scheduling appointments, and at this pre-certification stage, the named Plaintiffs' allegations are the only allegations that matter; (ii) the named Plaintiffs don't identify any particular false or misleading representations that they read and relied upon; (iii) none of the named Plaintiffs allege that they felt fatigued by Cerebral's sign-up process, or that they were overwhelmed by Cerebral's payment page; (iv) the Plaintiffs haven't plausibly alleged that Cerebral's nondisclosures were "an immediate cause" of any harm they suffered; and (v) their unfair-business-practices theory isn't well pleaded. Judge Tse then finds that the Plaintiffs haven't pleaded a plausible claim for relief under the UCL, FAL, or CLRA. But even if they had, two of the named Plaintiffs, Victoria Barber and Jessica Atherton, haven't established that they can sue Cerebral under the UCL, FAL, or CLRA. Barber and Atherton aren't California residents, so to invoke California's consumer protection statutes, they must allege that they were harmed by "wrongful conduct occurring in California." They haven't done so. They allege only that Cerebral was headquartered in, and conducted substantial business in, California. These allegations fall short of plausibly alleging that Cerebral's "wrongful conduct occurred in California." Because the Plaintiffs haven't stated a claim for relief under the UCL, FAL, or CLRA, Judge Tse holds that their unjust-enrichment claim also fails. Their unjust-enrichment claim is predicated on the same deceptive and unfair practices underlying their UCL, FAL, and CLRA claims. Those practices are not pleaded with sufficient detail to state an actionable claim. Finally, the Plaintiffs' remaining claims, their contract claims, fall short too. Judge Tse determines that the Plaintiffs haven't identified any contractual term that Cerebral breached; they simply declare that Cerebral didn't deliver "the promised services." Similarly, he says the Plaintiffs' allegations that Cerebral breached the implied covenant of good faith and fair dealing are too conclusory and don't plausibly support that Cerebral unfairly interfered" with the named Plaintiffs' rights to receive the benefit of their bargain. For these reasons, Judge Tse grants Cerebral's motion to dismiss and dismisses the Plaintiffs' claims with leave to amend. The Plaintiffs may file an amended complaint on or before Feb. 15, 2023. A full-text copy of the Court's Jan. 18, 2023 Order is available at https://tinyurl.com/2mcsyury from Leagle.com. COCA-COLA CO: Orange Juice Drinks Have Toxic Chemicals, Suit Says ----------------------------------------------------------------- Olivia Rosane at ecowatch.com reports that if a product is titled "Simply Orange Juice" and advertised as "all natural," you would reasonably expect that it contained freshly-squeezed orange juice, water and little else. You certainly wouldn't expect it to contain unsafe levels of toxic forever chemicals linked to health ailments from immunosuppression to reproductive problems to cancer. Yet that is exactly what the Coca-Cola-owned Simply Orange products contain, according to a class action lawsuit filed in a New York federal court on Dec. 28 of last year, giving the lie to its natural claims. "In reality, Plaintiff's testing has revealed that the Product contains per- and polyfluoroalkyl substances, a category of synthetic chemicals that are, by definition, not natural," the lawsuit states, as Top Class Actions reported. Per- and polyfluoroalkyl substances - or PFAS - are a growing concern because of the many health impacts associated with exposure and their tendency to persist in the human body for months to years and in the environment for thousands of years, according to the PFAS Project Lab. There are thousands of these chemicals that are commonly used in industry and in consumer products including firefighting foam and stain- or water-resistant items. They have been found in the blood of most U.S. residents as well as in breast milk and umbilical cord blood, as well as rainwater around the world. As concerns about these chemicals mount, efforts to regulate them have increased. In June of last year, the Environmental Protection Agency (EPA) updated its safe drinking water guidelines for two of the most common PFAS to near zero. Now, plaintiff Joseph Lurenz claims that independent testing for the two chemicals in Simply Orange Juice turned up levels "hundreds of times" more than that, according to Top Class Actions and The Guardian. The PFAS in question - PFOA and PFOS - are considered two of the most dangerous forever chemicals. While they have been phased out from active use in the U.S., they continue to linger in the environment. The suit claims that their presence in the juice renders its advertising claims misleading. Simply's packaging promotes the beverage as from "all natural ingredients," "simply natural," having "nothing to hide," and using "filtered water," according to The Guardian. This, the lawsuit argues, would prompt "reasonable consumers to believe that additional care has been taken to remove any incidental chemicals or impurities." Lurenz is suing Coca-Cola and Simply Orange Juice for fraud, unjust enrichment and violating warranty and New York consumer laws, according to Top Class Action. Representing him are Jason P. Sultzer and Daniel Markowitz of The Sultzer Law Group and Nick Suciu III, Erin Ruben, J. Hunter Bryson and Gary Klinger of Milberg Coleman Bryson Phillips Grossman PLLC. He is suing on behalf of anyone who has purchased the juice in the U.S., as well as a New York-based subclass, and wants damages, a jury trial and all the fees and costs associated with the suit. "As a result of Defendants' misconduct, Plaintiff and putative Class Members have suffered injury in fact, including economic damages," the lawsuit states. The chemicals could have ended up in the juice through the water, fruit or packaging, according to The Guardian. Environmental Defense Fund chemicals policy director Tom Neltner told The Guardian it was unlikely that they were added intentionally, or the levels would have been even higher. However, he said their presence is a symptom of a wider regulatory loophole: While the EPA has updated its drinking water guidelines for PFAS, the Food and Drug Administration (FDA) has not been as vigilant with food. It tests some products for the chemicals but sets its safety threshold higher than public health experts advise. "As we get better and better able to measure PFAS at lower levels and the FDA falls further behind on what it is testing . . . . then you're going to keep seeing these lawsuits pop up," Neltner told The Guardian. [GN] COCA-COLA COMPANY: Letoski Sues Over Mislabeled Soda Water ---------------------------------------------------------- Mark Letoski and Roger Fox, individually and on behalf of all others similarly situated, Plaintiffs v. The Coca-Cola Company, Defendant, Case No. 1:23-cv-00238 (N.D. Ill., January 16, 2023) is a class action against the Defendant for breaches of express warranty, negligent misrepresentation, fraud, unjust enrichment, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, Vermont Consumer Fraud Act, State Consumer Fraud Acts, and Magnuson Moss Warranty Act. The Coca-Cola Company manufactures, labels and sells citrus flavored "sparkling soda water" under the Fresca brand in grapefruit and black cherry varieties. The front label of the pictures of grapefruits and cherries causes consumers, including Plaintiffs, to expect non-negligible amounts of these fruit ingredient. However, the ingredient lists reveal a de minimis amount or absence of these ingredients, says the suit. As a result of the false and misleading representations, the products are sold at premium prices, approximately not less than $7.99 per pack of twelve 12 ounce cans, excluding tax and sales, the suit asserts. The Coca-Cola Company is an American multinational beverage corporation founded in 1892, known as the producer of Coca-Cola.[BN] The Plaintiffs are represented by: Spencer Sheehan SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck, NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com CONSUMER REPORTS: Wallen Appeals Case Dismissal Ruling to 2nd Cir. ------------------------------------------------------------------ Plaintiffs James Wallen, et al., filed an appeal from the District Court's Memorandum and Opinion dated December 9, 2022 and Judgment dated December 12, 2022, entered in the lawsuit entitled JAMES WALLEN, ROYCE LADER, RITA FAHRNER, LEEANN BIDDIX, FRANK HIGHSMITH, JERRY HILL, HELEN KASSAMANIAN, and ERNEST BRANIGH, individually and on behalf of all others similarly situated, Plaintiffs v. CONSUMER REPORTS, INC., Defendant, Case No. 21-cv-8624, in the United States District Court for the Southern District of New York (White Plains). The Plaintiffs brought this putative class action against the Defendant over the Defendant's practice of renting or exchanging data about its subscribers to third parties for profit, including subscribers' names, titles of publications subscribed to, and home addresses. The Plaintiffs assert that this practice misappropriates subscribers' names, identities, or likenesses in violation of the right of publicity statutes of Alabama, California, Hawaii, Indiana, Nevada, Ohio, and Washington. They allege that the Defendant provides information about subscribers, including their names, titles of publications subscribed to, and home addresses, to other companies that aggregate this information with data about the subscribers from other sources, such as sex, age, race, and political party. The aggregated data is then returned to Defendant, which the Defendant sells, licenses, exchanges, or rents to third parties for a "significant" profit. As reported in the Class Action Reporter on December 21, 2022, Judge Vincent L. Briccetti of the Southern District of New York granted the Defendant's motion to dismiss the Plaintiffs' first amended complaint. Although he found the Defendant's first three arguments unpersuasive, Judge Briccetti agreed that the Plaintiffs have not plausibly alleged their names were publicly used, as required by each Misappropriation Statute at issue; thus, their claims must be dismissed. He further found that (i) the Plaintiffs' allegations fit within the plain meaning of the Misappropriation Statutes in that their names appear on or in a product sold by the Defendant; (ii) including the Plaintiffs' names on the Subscriber Lists is enough under the Misappropriation Statute; (iii) the Plaintiffs plausibly allege the infringement of property rights in their identities, which are protected by the Misappropriation Statutes; and (iv) private disclosure only to the third parties who purchase the Subscriber Lists as publicity would transform the Misappropriation Statutes into sweeping data privacy laws. The appellate case is captioned as Wallen v. Consumer Reports, Inc., Case No. 23-53, in the United States Court of Appeals for the Second Circuit, filed on January 10, 2023.[BN] Plaintiffs-Appellants James Wallen, individually and on behalf of all others similarly situated, et al., are represented by: Philip Lawrence Fraietta, Esq. BURSOR & FISHER, P.A. 888 7th Avenue New York, NY 10019 Telephone: (646) 837-7150 Defendant-Appellee Consumer Reports, Inc. is represented by: Kristen Rodriguez, Esq. DENTONS US LLP 233 South Wacker Drive Chicago, IL 60606 Telephone: (312) 876-6133 - and - Sandra Hauser, Esq. DENTONS US LLP 1221 Avenue of the Americas New York, NY 10020 Telephone: (212) 768-6700 DAVID KUSHNER: Denial of Bids to Dismiss in Rosenshein Suit Upheld ------------------------------------------------------------------ In the case, ARNOLD ROSENSHEIN, ETC., ET AL., Respondents v. DAVID KUSHNER, ET AL., Defendants, JEFFREY MESHEL, ET AL., Appellants, 2020-03642, Index No. 1715/17 (N.Y. App. Div.), the Appellate Division of the Supreme Court of New York, Second Department, affirms the order of Judge James P. McCormack of the Supreme Court, Nassau County, dated Jan. 31, 2020, denying Defendants Jeffrey Meshel and Wayne Sturman's separate motions to dismiss the first, second, and eighth causes of action insofar as asserted against each of them. In a putative class action, inter alia, to recover damages for breach of contract, Meshel and Sturman separately appeal from Judge McCormack's order denying their separate motion, pursuant to CPLR 3211(a)(5) and (7), to dismiss the first, second, and eighth causes of action insofar as asserted against each of them. The Appellate Division affirms the order insofar as appealed from, without costs or disbursements. As relevant to the appeal, the Supreme Court, inter alia, denied those branches of the separate motions of these Defendants to dismiss the first cause of action (breach of contract), the second cause of action (breach of fiduciary duty), and the eighth cause of action (accounting and preservation) insofar as asserted against each of them. On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences. The Appellate Division finds that the Plaintiffs adequately pleaded allegations that the Defendants dominated related entity Defendants Mercury Credit Corp., Paradigm CF Corp., Paradigm Credit Corp., and/or Paradigm Capital Funding, LLC, and that the Defendants engaged in acts amounting to an abuse of the corporate form to perpetrate a wrong or injustice against the Plaintiffs. In this regard, the Plaintiffs alleged that the defendants commingled the assets of these four Corporate Defendants with their own personal assets, that they failed to adhere to corporate formalities with respect to the Corporate Defendants, and that they diverted assets out of the Corporate Defendants for their own personal use. The Plaintiffs also sufficiently pleaded allegations that one or more of the Corporate Defendants were an alter ego of the defendants. Contrary to the Defendants' contention, under the circumstances present, the Appellate Division finds that the Supreme Court properly applied a six-year statute of limitations to the cause of action alleging breach of fiduciary duty. Accordingly, it properly denied those branches of the Defendants' separate motions to dismiss. A full-text copy of the Court's Jan. 18, 2023 Decision & Order is available at https://tinyurl.com/2fyzzz37 from Leagle.com. Winslett Studnicky McCormick & Bomser LLP, New York, NY (Usher Winslett -- uwinslett@wsmblaw.com -- of counsel), for Appellant Jeffrey Meshel. Mantel McDonough Riso, LLP, New York, NY (Gerald A. Riso -- gerard.riso@mmrllp.com -- of counsel), for Appellant Wayne Sturman. DOLGENCORP LLC: Davis Sues Over Failure to Pay Overtime Wages ------------------------------------------------------------- MATTHEW DAVIS, individually and on behalf of all others similarly situated, Plaintiff v. DOLGENCORP, LLC and DOLGENCORP INC. d/b/a DOLLAR GENERAL, Defendants, Case No. 2:23-cv-00018 (E.D. Tex., January 16, 2023) arises from the Defendants' failure to pay Plaintiff and all those similarly situated workers proper overtime wages in violation of the Fair Labor Standards Act. Plaintiff Davis was employed by Defendants as a Regional Smart Team Member. He provided store clean up services in stores in the East Texas, Louisiana and Arkansas area. He was employed from April 21, 2018 to October 6, 2022. Dolgencorp, Inc. and Defendant Dolgencorp, LLC are entities conducting business in the State of Texas. Defendants operate retail stores in the "dollar store" market under the trade name "Dollar General." [BN] The Plaintiff is represented by: William S. Hommel, Jr. Esq. HOMMEL LAW FIRM PC 5620 Old Bullard Road, Suite 115 Tyler, TX 75703 Telephone and Facsimile: (903) 596-7100 E-mail: bhommel@hommelfirm.com DOORDASH INC: Bid to Compel Arbitration in Mullo Class Suit Granted ------------------------------------------------------------------- In the case, JOSE REINALDO YUQUILEMA MULLO and SILVERIO FLORES, Plaintiffs v. DOORDASH, INC., ERIN ANDEREGG, and TONY XU, Defendants, Case No. 22-CV-2430 (VEC) (S.D.N.Y.), Judge Valerie Caproni of the U.S. District Court for the Southern District of New York grants the Defendants' motion to compel arbitration, to strike the Complaint's class allegations, and to stay the case. The Plaintiffs have sued DoorDash and its employees Erin Anderegg and Tony Xu (collectively "DoorDash"), for various violations of federal and state wage and hour laws. Flores and Mullo worked as deliverymen for DoorDash from July 2018 to November 2020 and July 2019 to May 2021, respectively. They allege that DoorDash violated various federal and state labor laws during this time. When registering to work as deliverymen for DoorDash, an app-based delivery company, the Plaintiffs were presented with a hyperlink to DoorDash's Independent Contractor Agreement (ICA) and a notice informing them that, by continuing with the registration process, they agreed to the terms of the ICA. The first page of the ICA contains bolded text stating that the ICA contains an arbitration clause. The arbitration clause obligates DoorDash and its delivery workers to arbitrate all disputes arising from the ICA, including claims brought pursuant to federal and state labor laws. It also includes a waiver of the worker's right to participate in or commence a class action regarding disputes arising out of the ICA, whether in arbitration or in court. Delivery workers can opt out of the arbitration provision at the time of registration but may not do so later. The Plaintiffs did not opt out of the arbitration provision. At the time of contracting, the ICA stated that all arbitration proceedings would be conducted in accordance with the American Arbitration Association's Commercial Arbitration Rules. While the Plaintiffs were still working as deliverymen, DoorDash amended the ICA to provide that any arbitration would be conducted in accordance with the International Institute for Conflict Prevention & Resolution ("CPR") Rules. CPR has accepted donations from numerous law firms, including the Defendants' counsel Littler Mendelson, P.C., and collaborated with DoorDash and its counsel, Gibson Dunn & Crutcher LLP, to design the arbitration policies for its disputes with delivery workers. After the case was removed from state court, the Defendants moved to compel arbitration, to strike the Complaint's class allegations, and to stay the case. The Plaintiffs opposed the motion. The Plaintiffs advance a grab-bag of arguments to support their position that the class waiver is unenforceable as a matter of state contract law. They first argue that their consent was defective because they were not fluent in English. The ICA, however, was also available in other languages. Furthermore, the Plaintiffs have failed to substantiate their assertion that language barriers prevented them from understanding the ICA. But even if they had, the fact that a worker had an imperfect grasp of the English language does not invalidate his consent to arbitrate disputes with the hiring entity; the worker is obliged to seek assistance in understanding the document prior to signing. While the Plaintiffs' opposition brief is not a model of drafting, the Plaintiffs appear also to argue that they were coerced or deceived into consenting to the class waiver because DoorDash failed to disclose financial links between defense counsel and the CPR. Putting aside the internal inconsistency between the Plaintiffs' claim that their consent was defective because they could not read the ICA and their assertion that they would have not consented to the ICA if it had included such disclosures, Judge Caproni finds that Plaintiffs' arguments unavailing. She holds that the Defendants do not have a duty to disclose public information regarding CPR's donors. The Plaintiffs' opposition brief largely draws on information regarding CPR's finances that is available on CPR's website and could have easily been found through "basic research" during the contracting process. Finally, the Plaintiffs suggest that the purported relationship between DoorDash and CPR renders the class waiver unconscionable. Judge Caproni finds that the Plaintiffs fail to support their suggestion of bias with anything other than rank speculation. Despite complaining at length that DoorDash "colluded" with CPR to promulgate arbitration rules, they have not pointed to a single CPR rule that is biased against them. They have failed to provide either facts or arguments that even remotely tend to show that, even if their claims about CPR's bias proved true, the applicable CPR rules would not guard against that bias. If the Plaintiffs are correct that the CPR process is biased against them, Judge Caproni says the FAA already contemplates a process through which they can be protected; courts can overturn arbitration decisions where there was evident partiality or corruption in the arbitrators. The FAA does not, however, allow a plaintiff to avoid arbitration altogether based on speculation that the process will be unfair. For the foregoing reasons, Judge Caproni grants the Defendants' motion to compel arbitration and to strike the Plaintiffs'. She stays the action pending the conclusion of individual arbitration of the Plaintiffs' claims. The parties must submit a joint update on the status of arbitration every six months, on the fifteenth of that month, or if the fifteenth falls on a weekend or holiday, on the first business day thereafter. T The Clerk of Court is requested to terminate the open motion at docket entry 10 and to stay the case. A full-text copy of the Court's Jan. 17, 2023 Order & Opinion is available at https://tinyurl.com/3xcmefce from Leagle.com. ENDANGERED SPECIES: Rodriguez Hits Cocoa Bars' Lead Content ----------------------------------------------------------- CRYSTAL RODRIGUEZ, on behalf of herself, all others similarly situated, and the general public, Plaintiff v. ENDANGERED SPECIES CHOCOLATE, LLC, Defendant, Case No. 3:23-cv-00054-BTM-JLB (S.D. Cal., January 11, 2023) is a class action against the Defendant for breach of implied warranties, unjust enrichment, and violations of the California Business and Professions Code and the California Civil Code concerning the presence of lead and cadmium in dark chocolate bars. According to the complaint, Defendant's conduct with respect to the labeling, advertising, and sale of the the Bold + Silky Dark Chocolate 72% Cocoa bar was unfair because consumers, including Plaintiff, who purchased the product were injured by its acts and omissions concerning the presence of lead and cadmium in its product. No reasonable consumer would know, or have reason to know, that the product contains heavy metals. Worse, as companies across the industry have adopted methods to limit heavy metals in their dark chocolate products, Endangered Species has stood idly by with a reckless disregard for its consumers' health and well-being, says the suit. The Plaintiff brings this action against the Defendant on behalf of herself, similarly-situated Class Members, and the general public to enjoin Endangered Species from deceptively marketing the product, and to recover compensation for injured Class Members. Endangered Species Chocolate, LLC manufactures confectionery products. The Company offers chocolate bars and bites, candy, and truffles.[BN] The Plaintiff is represented by: Jack Fitzgerald, Esq. Paul K. Joseph, Esq. Melanie Persinger, Esq. Trevor M. Flynn, Esq. Caroline S. Emhardt, Esq. FITZGERALD JOSEPH LLP 2341 Jefferson Street, Suite 200 San Diego, CA 92110 Telephone: (619) 215-1741 E-mail: jack@fitzgeraldjoseph.com paul@fitzgeraldjoseph.com melanie@fitzgeraldjoseph.com trevor@fitzgeraldjoseph.com caroline@fitzgeraldjoseph.com ENTRADA THERAPEUTICS: Pomerantz Probes Potential Securities Claims ------------------------------------------------------------------ Pomerantz LLP is investigating claims on behalf of investors of Entrada Therapeutics, Inc. ("Entrada" or the "Company") (NASDAQ: TRDA). Such investors are advised to contact Robert S. Willoughby at newaction@pomlaw.com or 888-476-6529, ext. 7980. The investigation concerns whether Entrada and certain of its officers and/or directors have engaged in securities fraud or other unlawful business practices. After the market closed on December 19, 2022, Entrada issued a press release announcing that the U.S. Food and Drug Administration ("FDA") placed a clinical hold on the Company's Investigational New Drug Application for ENTR-601-44 for the potential treatment of Duchenne muscular dystrophy. The FDA indicated that they would provide an official Clinical Hold letter to Entrada within 30 days. On this news, Entrada's stock price fell $3.93 per share, or 19.76%, to close at $15.96 per share on December 20, 2022. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, 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.[GN] FATE THERAPEUTICS: Portnoy Law Probes Potential Securities Claims ----------------------------------------------------------------- The Portnoy Law Firm advises Fate Therapeutics Inc. ("Fate" or "the Company") (NASDAQ: FATE) investors that the firm has initiated an investigation into possible securities fraud and may file a class action on behalf of investors. Fate investors that lost money on their investment are encouraged to contact Lesley Portnoy, Esq. Investors are encouraged to contact attorney Lesley F. Portnoy, by phone 844-767-8529 or email: lesley@portnoylaw.com, to discuss their legal rights, or click here to join the case via www.portnoylaw.com. The Portnoy Law Firm can provide a complimentary case evaluation and discuss investors' options for pursuing claims to recover their losses. On January 5, 2023, Fate announced that it would be ending its partnership with Johnson & Johnson's Janssen for cell-based cancer immunotherapies and that all collaboration activities would be discontinued in the first quarter of 2023. This news caused Fate's stock price to drop by 61.5% or $6.76, closing at $4.24 per share on January 6, 2023, resulting in financial harm to investors. Please visit our website to review more information and submit your transaction information. The Portnoy Law Firm represents investors in pursuing claims against caused by corporate wrongdoing. The Firm's founding partner has recovered over $5.5 billion for aggrieved investors. Attorney advertising. Prior results do not guarantee similar outcomes.[GN] FIELDWORKS LLC: Bid to Remand Swans Suit to Superior Court Denied ----------------------------------------------------------------- In the case, TRAVIS SWANS, an individual, on behalf of himself and on behalf of all persons similarly situated, Plaintiff v. FIELDWORKS, LLC, a District of Columbia limited liability company; and DOES 1 through 100, inclusive, Defendants, Case No. 2:22-cv-07250-SPG-MRW (C.D. Cal.), Judge Sherilyn Peace Garnett of the U.S. District Court for the Central District of California denies Swans' Motion to Remand to the Superior Court of California for the County of Los Angeles. Swans alleges that Fieldworks has violated California's wage and hour laws. On Aug. 30, 2022, she filed a putative class action complaint in the Superior Court of California for the County of Los Angeles ("LASC"). The Plaintiff asserts nine causes of action alleging a wide range of wage and hour violations under the California Labor Code, including claims of unpaid wages, unpaid overtime, statutory penalties, liquidated damages, and statutory attorneys' fees and costs. On Oct. 5, 2022, the Defendants timely removed the action from LASC pursuant to 28 U.S.C. Section 1332. On Oct. 25, 2022, the Plaintiff timely filed a motion to remand back to the LASC. The Defendants opposed on Dec. 27, 2022, and the Plaintiff replied on Jan. 4, 2023. The Plaintiff argues that the Defendant has failed to establish that the amount in controversy exceeds $75,000 for two reasons. First, the Defendant's calculation of attorneys' fees erroneously includes future fees rather than only those fees incurred at the time of removal. And second, the Defendant's calculation of attorneys' fees is speculative and unsupported. First, Judge Garnet holds that the Plaintiff misstates the law -- there is no split in authority as to whether attorneys' fees should be calculated at the time of removal. Second, the Defendant has proved beyond a preponderance of evidence that the amount in controversy exceeds $75,000 based on approximately $20,000 in damages and $60,000 in attorneys' fees. Although the parties indicate that settlement is likely, based on similar cases with similar factual allegations and causes of actions, Judge Garnett agrees with the Defendant that its estimate of $60,000 in recoverable attorneys' fees is reasonable based on the evidence provided. As such, she finds the total amount in controversy exceeds $75,000, as is required by 28 U.S.C. Section 1332. For these reasons, Judge Garnett denies the Plaintiff's Motion to Remand. A full-text copy of the Court's Jan. 17, 2023 Order is available at https://tinyurl.com/58j65exc from Leagle.com. FLUOR CORP: N.D. Texas Grants Bids to Dismiss Locascio ERISA Suit ----------------------------------------------------------------- In the case, DEBORAH LOCASCIO, et al., Plaintiffs, v. FLUOR CORPORATION, et al., Defendants, Civil Action No. 3:22-CV-0154-X (N.D. Tex.), Judge Brantley Starr of the U.S. District Court for the Northern District of Texas, Dallas Division, grants the Defendants' two motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Sometimes stocks underperform. This lawsuit is a putative class action lawsuit stemming from an alleged breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 ("ERISA"). The named representatives of the putative class are Deborah Locascio and David Summers. The plaintiffs are former employees of Fluor who previously participated in the Fluor Corporation Employees' Savings Investment Plan. The Defendants are Fluor, the Fluor Corporation Benefits Administrative Committee, the Fluor Corporation Retirement Plan Investment Committee (collectively, "Committees"), and Mercer Investments, LLC, a/k/a Mercer Investment Management, who are members of the Committees or other fiduciaries of the Plan and whose names are currently unknown. The Plaintiffs specifically allege that the Plan fiduciaries violated ERISA by imprudently offering and retaining Custom Fluor Target-Date Funds ("Fluor TDFs"), a Custom Large Cap Equity Fund, a Custom Small/Mid Cap Equity Fund, and a Custom Non-U.S. Equity Fund (collectively, the "Challenged Funds"). Based out of Irving, Texas, Fluor is a large engineering, procurement, and construction company that offers its employees an opportunity to save for retirement by contributing a portion of their pay to a fund, with matching contributions by Fluor. Fluor's retirement system -- the Plan -- offers participants multiple investment options in which they can direct their contributions, like the Custom Large Cap Equity Fund, the Custom Small/Mid Cap Equity Fund, and the Custom Non-U.S. Equity Fund. Different participants can have different returns based on where they direct their investments. One of the Plan's custom investment options is a suite of nine custom target date fund -- the Fluor TDFs. BlackRock, Inc. manages the Fluor TDFs, which mirror the BlackRock LifePath Index Funds ("BlackRock TDFs") and consist of a diverse portfolio that becomes more conservative2 as the target date approaches. The Plan has made the Fluor TDFs available since at least 2010, and the Custom Large Cap Equity Fund, the Custom Small/Mid Cap Equity Fund, and the Custom Non-U.S. Equity Fund since 2014 or earlier. On March 1, 2017, Mercer agreed to provide consulting and certain investment services to the Plan and its participants. Mercer serves as the Plan's designated fiduciary investment advisor pursuant to ERISA section 3(38) and 29 U.S.C. sections 1002 and 1102. When the Plaintiffs recognized that the Plan was underperforming—at least according to their standards -- they decided to sue. They claim that competent fiduciaries would not have retained the investments challenged in the complaint ("Challenged Investments"). They bring three counts: (1) breach of fiduciary duty, (2) failure to monitor fiduciaries and co-fiduciary breaches, and in the alternative, (3) liability for knowing breach of trust. Count one of the complaint alleges that the Defendants' conduct violated their fiduciary duties under Sections 404(a)(1)(A), (B), and (D) of ERISA, and 29 U.S.C. section 1104(a)(1)(A), (B), and (D) because the Defendants failed to discharge their duties with respect to the Plan solely in the interest of the Plan's participants and beneficiaries and for the exclusive purpose of providing benefits to participants and their beneficiaries. Count two of the complaint alleges that Fluor and the Committees breached their fiduciary monitoring duties by failing to monitor and evaluate the performance of their appointees, failing to monitor their appointees' fiduciary processes, and failing to remove appointees whose performances were inadequate. Count three of the complaint alleges, in the alternative, to the extent that any of the Defendants are not deemed a fiduciary or co-fiduciary under ERISA, each such Defendant should be enjoined or otherwise subject to equitable relief as a nonfiduciary from further participating in a knowing breach of trust. Mercer and Fluor each move to dismiss the Plaintiffs' complaint in its entirety for failing to state a claim upon which relief can be granted. Additionally, Fluor moves for dismissal under Rule 12(b)(1) stating that the Plaintiffs lack Article III standing to pursue most of their claims. First, the Fluor challenges Locascio's standing because she did not invest in any of the Plan's twelve options. It also challenges Summers' standing to bring all claims involving the nine Plan options in which he did not invest. Judge Starr agrees with Fluor. He says Locascio suffered no injury, and therefore has no standing, because she invested in none of the 12 options of the Plan. So she pled her way out of court. Summers only has standing for claims involving the three Plan options in which he invested. Therefore, Judge Starr grants the Defendants' Rule 12(b)(1) motion as to Locascio's standing and dismisses without prejudice Locascio. He also dismisses without prejudice Summers' claims concerning the nine investment options in which he did not invest. Before Judge Starr addresses the breach of fiduciary duty claims, he clarifies Fluor's responsibilities because they differ throughout the timeline of events. Fluor claims that the Plaintiffs cannot plausibly allege that Fluor breached any fiduciary duty after March 1, 2017, which is when Fluor appointed Mercer. In response, the Plaintiffs make two arguments. First, they argue that there is an exception to Section 1105(d)'s safe harbor for those who knowingly participated in a breach of fiduciary duty. Second, they again argue that Fluor failed to monitor Mercer. Judge Starr both arguments. He opines that without even addressing whether initially investing and continuing to invest in the funds was prudent, the Plaintiffs fail to plausibly allege knowing participation. The Plaintiffs do not plead sufficient facts to plausibly allege a breach of fiduciary duty and therefore they cannot plead enough facts to plausibly allege knowing participation. Regarding the second argument about the duty to monitor, the Plaintiffs' argument again fails because it does not identify any flaws in Fluor's monitoring process. Relative unsuccess (or even utter unsuccess) of the funds does not necessarily indicate to a failure to monitor. Having separated the timelines of responsibility for the Defendants, Judge Starr then considers the Defendants' Rule 12(b)(6) arguments. The Defendants argue that Summers failed to state a claim under Rule 12(b)(6) because he did not plausibly suggest that they breached their fiduciary duties of prudence or loyalty. Since Summers' duty of prudence claims involve the same funds retained by Fluor and then by Mercer, Judge Starr analyzes the alleged breach of fiduciary duty for both Defendants together. As for Count One, he agrees with the Defendants that Summers has failed to plead sufficient factual allegations. He grants the motion on this ground and dismisses with prejudice this claim. However, because Summers may be able to cure these deficiencies with an amended complaint, he grants Summers 28 days to do so. Regarding the duty of loyalty for both Fluor and Mercer, Judge Starr agrees with the Defendants that Summers failed to plead facts showing a plausible claim of fiduciary disloyalty. Accordingly, he grants the motion as to this claim and dismisses it with prejudice. Summers has 28 days to amend his pleadings to address these deficiencies. As for Count Two, Fluor argues that Summers' claim for a breach of the duty to monitor fails because Summers misunderstands the breadth of the duty to monitor and does not allege facts that support such an allegation. Judge Starr agrees. He opines that there are simply not enough facts to state a claim for relief that is plausible on its face. So, he grants the motion as to this claim and dismisses it with prejudice. Summers has 28 days to amend his pleadings to address these deficiencies. For these reasons, Judge Starr grants the Defendants' motions to dismiss. He dismisses without prejudice Locascio's claims because she lacks standing, and Summers' claims concerning the nine investment options in which he did not invest. He dismisses with prejudice Summers' claims concerning the investment options in which he did invest. Regarding those claims, because Summers' deficiencies outlined in the Order could possibly be cured by amendment, Summers may amend his complaint within 28 days of the Order. He may make no other changes than the ones the Order addresses. A full-text copy of the Court's Jan. 18, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/4k3v5wsn from Leagle.com. GLEN MILLS: $3-M Settlement Reached Over School Abuse Claims ------------------------------------------------------------ insurancejournal.com reports that a $3 million settlement will establish a fund for former students as part of a lawsuit alleging abuse and deprivation of education at a now-shuttered Pennsylvania juvenile justice facility. Former Glen Mills Schools students could receive both cash payments for those who experienced or witnessed abuse and funds to pay for or reimburse educational expenses after a settlement with Chester County Intermediate Unit as part of an ongoing federal class action lawsuit. Formerly the nation's oldest reform school, Glen Mills Schools had its licenses revoked in 2019. The state ordered the removal of all children following the Philadelphia Inquirer's investigation detailing the alleged abuse. The complaint, filed by the Education Law Center, Juvenile Law Center and Dechert LLP on behalf of former students asserts that the intermediate unit failed in its oversight responsibilities and duties with students with disabilities. In a statement, the Chester County Intermediate Unit said it disagrees with the depiction of its role over Glen Mills, but "protracted litigation will not benefit the young adults who contend they received an inferior education while at the Glen Mills Schools." Lawyers said 1,600 students who meet certain age limitations are eligible to file for the fund. The distribution of awards is slated to begin next year. "We do believe that this is an important starting point to support these students to remedy the deep harm that they have experienced," said Maura McInerney, legal director at the Education Law Center. "And it's important that it's happening at this time when the students can use it to really change the trajectory of their futures." Other named defendants in the ongoing lawsuit are Glen Mills Schools and former Glen Mills Schools staff, plus officials at Pennsylvania Department of Human Services and Pennsylvania Department of Education. Court proceedings continue this month. A trial date is still to be determined. The lawsuit is among other legal filings against Glen Mills School by former students. [GN] HANESBRANDS INC: Fails to Protect Employees' Info, Roman Says ------------------------------------------------------------- Veronica Roman, on behalf of herself and all others similarly situated, Plaintiff v. Hanesbrands, Inc., Defendant, Case No. 1:23-cv-00044 (M.D.N.C., January 16, 2023) is a class action against the Defendant for negligence, breach of implied contract, unjust enrichment, negligence per se, invasion of privacy, and violation of North Carolina's Unfair and Deceptive Trade Practices Act. The case arises from the cyberattack and data breach that was perpetuated against Defendant, which collected and maintained certain personally identifiable information of Plaintiff and the putative Class Members who are/were employees at Hanes. As a result of the data breach, Plaintiff and potentially thousands of Class Members, suffered concrete injury in fact including, but not limited to: eviction, due to fraudulent activity under her name; denial of an automobile-financing loan; over $15,000 of fraudulent charges; and identity theft that resulted in the unauthorized party attempting to open new financial accounts under her name. The said data breach was a direct result of Defendant's failure to implement adequate and reasonable cyber-security procedures and protocols necessary to protect its employees' private information, says the suit. The Plaintiff and Class Members have been exposed to a heightened and imminent risk of fraud and identity theft due to Defendant's negligence. The Plaintiff and Class Members must now and in the future closely monitor their financial accounts to guard against identity theft, the suit alleges. Hanesbrands, Inc. is an international clothing and apparel company.[BN] The Plaintiff is represented by: Scott C. Harris, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 900 W. Morgan Street Raleigh, NC 27603 Telephone: (919) 600-5000 E-mail: sharris@milberg.com HORIZON ACTUARIAL: Jimenez Class Suit Transferred to N.D. Georgia ----------------------------------------------------------------- Judge James Donato of the U.S. District Court for the Northern District of California transferred the case, TERESA JIMENEZ, Plaintiff v. HORIZON ACTUARIAL SERVICES, LLC, Defendant, Case No. 3-22-cv-04550-JD (N.D. Cal.), to the U.S. District Court for the Northern District of Georgia. Jimenez filed the putative class action against Horizon for a data breach that Horizon experienced in November 2021. She seeks to represent a class of "all individuals residing in California whose PII [personal identifiable information] was accessed or otherwise compromised" in the breach. Jimenez asks for a remand to state court, saying that she lacks the injury needed for Article III standing. Horizon requests that the action first be dismissed, transferred, or stayed under the first-to-file rule, or transferred under 28 U.S.C. Section 1404(a). Judge Donato orders transfer to the Northern District of Georgia under Section 1404(a). He says the record indicates that Georgia will be a much more convenient forum for the parties and witnesses. Horizon has its principal place of business in Georgia, and represents that many of the witnesses and documents. The Plaintiffs have not adduced any evidence to the contrary. For these reasons, other putative class actions arising out of the same data breach, including cases that originated in this District, have been transferred to and consolidated in the Northern District of Georgia. For Jimenez's remand request, Judge Donato says there are arguments for and against Article III standing to sue in federal court. Jimenez says that her personal information was unlawfully "accessed, exposed, exfiltrated, stolen and/or disclosed and compromised" as a result of the Horizon data breach. This invasion may be enough to establish the requisite injury-in-fact. On the other hand, Jimenez has stated substantial arguments against standing. Judge Donato need not resolve the issue because the question of standing is already teed up in the Northern District of Georgia, which has before it a fully briefed motion to dismiss for lack of subject-matter jurisdiction. He declines to disrupt the standing proceedings before that court, which is perfectly capable of remanding the case to the California Superior Court if warranted. Finally, Jimenez leans on an older case to the effect that courts should assess subject-matter jurisdiction before reaching venue, citing Bookout v. Beck, 354 F.2d 823, 825 (9th Cir. 1965)). He holds that the comment in Bookout is nonbinding dicta that was not central to the case holding or supported by meaningful analysis. Since then, subsequent authority, including a decision by the Supreme Court, indicates that venue may be addressed first, particularly when, as in the present case, the Court cannot readily determine that it lacks jurisdiction over the cause. Consequently, the case is transferred to the Northern District of Georgia. A full-text copy of the Court's Jan. 18, 2023 Order is available at https://tinyurl.com/2p8f5j8x from Leagle.com. IKEA US: Dukich Appeals Summary Judgment Ruling to 3rd Circuit -------------------------------------------------------------- Plaintiffs DIANA DUKICH, et al., filed an appeal from the District Court's Memorandum and Order dated December 20, 2022, and Memorandum and Order dated September 13, 2022, entered in the lawsuit styled DIANA and JOHN DUKICH, et al. v. IKEA US RETAIL LLC, et al., Case No. 2:20-cv-02182-HB, in the United States District Court for the Eastern District of Pennsylvania. The lawsuit alleges that the Defendants manufactured and sold dangerous and defective chests and dressers under the model name MALM and other model names, to Plaintiffs and the Class over a period of several years. According to the complaint, the dangerously defective chests and dressers were front-heavy, unstable and due to their poor design, prone to tip over during normal and expected use, resulting in death and injury to many children. The defective design of the subject chests and dressers was admitted by IKEA when it publicly recognized that its dressers were unsafe, unstable and unfit for use as freestanding furniture in a voluntary recall initiated with the United States Consumer Products Safety Commission on June 28, 2016, which IKEA "re-announced" on November 21, 2017, says the suit. On September 13, 2022, the Hon. Judge Harvey Bartle III entered an order granting Defendants' June 21, 2022 Motion for Summary Judgment. As previously reported in the Class Action Reporter, Judge Bartle consequently entered a memorandum and order on December 20, 2022, denying the Plaintiffs' motion for class certification, and dismissing the Dukich action for lack of subject matter jurisdiction. The appellate case is captioned as Diana Dukich, et al. v. IKEA US Retail LLC, et al., Case No. 23-1049, in the United States Court of Appeals for the Third Circuit, filed on January 11, 2023.[BN] Plaintiffs-Appellants DIANA DUKICH and JOHN DUKICH, et al., on behalf of themselves and all others similarly situated, are represented by: James A. Francis, Esq. John Soumilas, Esq. Jordan M. Sartell, Esq. FRANCIS MAILMAN SOUMILAS, P.C. 1600 Market Street, Suite 2510 Philadelphia, PA 19103 Telephone: (215) 735-8600 E-mail: jfrancis@consumerlawfirm.com jsoumilas@consumerlawfirm.com jsartell@consumerlawfirm.com - and - Alan M. Feldman, Esq. Daniel J. Mann, Esq. Edward S. Goldis, Esq. Bethany R. Nikitenko, Esq. Zachary Arbitman, Esq. FELDMAN SHEPHERD WOHLGELERNTER TANNER WEINSTOCK & DODIG, LLP 1845 Walnut Street, 21st Floor Philadelphia, PA 19103 Telephone: (215) 567-8300 E-mail: afeldman@feldmanshepherd.com dmann@feldmanshepherd.com egoldis@feldmanshepherd.com bnikitenko@feldmanshepherd.com zarbitman@feldmanshepherd.com ILLINOIS FARMERS: Bid to Amend Certified Class in Taqueria Denied ----------------------------------------------------------------- In the case, TAQUERIA EL PRIMO LLC, VICTOR MANUEL DELGADO JIMENEZ, MITCHELLE CHAVEZ SOLIS, BENJAMIN TARNOWSKI, EL CHINELO PRODUCE, INC., and VIRGINIA SANCHEZ-GOMEZ, individually and on behalf of all others similarly situated, Plaintiffs v. ILLINOIS FARMERS INSURANCE COMPANY, FARMERS INSURANCE EXCHANGE, FARMERS GROUP, INC., TRUCK INSURANCE EXCHANGE, FARMERS INSURANCE COMPANY, INC., and MID-CENTURY INSURANCE COMPANY, Defendants, Civil No. 19-3071 (JRT/ECW) (D. Minn.), Judge John R. Tunheim of the U.S. District Court for the District of Minnesota denies the Defendants' Motion for Clarification of Orders on Class Certification and Class Notice or, in the Alternative, for Amendment of the Orders. The Defendants request the Court to clarify its Class Certification Order in the event that it did not intend to certify an ongoing Damages Class or, in the alternative, to amend the certified class to specify an end date of Dec. 28, 2021, for class membership. The Plaintiffs, on behalf of themselves and others similarly situated, initiated the class action in 2019. The Defendants sell automobile insurance in Minnesota. The Plaintiffs allege that the Defendants entered into confidential contracts with certain health care providers under which the providers agreed not to bill Defendants for any treatment provided to individuals insured by Defendants. According to them, the Defendants did not disclose these agreements to their policyholders or to the public. The Plaintiffs allege that these limitations violate Minnesota law and the terms of the policy contracts. In addition to damages, the Plaintiffs seek a declaratory judgment that any contractual provision limiting coverage guaranteed either by the insurance policies or Minnesota law is void, and an injunction prohibiting the Defendants from enforcing any limitations that violate the policy terms or Minnesota law. On March 30, 2021, the Plaintiffs moved for class certification. They proposed a "Damages Class" defined as: All persons or entities who purchased an insurance policy on or after Jan. 17, 2013 within the State of Minnesota from any of the Defendant Insurers that provided for medical expense benefits under Minnesota's No Fault Act. The Plaintiffs also proposed a nearly identical "Injunctive Class" with the additional requirement for membership that class members continue to maintain their policy. On Dec. 28, 2021, the Court certified a Damages Class and an Injunctive Class under Plaintiffs' Minnesota Consumer Fraud Act claim with nearly identical language to Plaintiffs' proposed classes. The Damages Class was defined as: All persons or entities or purchased an insurance policy on or after Jan. 17, 2013 within the State of Minnesota from any of the Defendant Insurers that provided for medical expense benefits under Minnesota's No Fault Act. The Defendants sought permission from the Eighth Circuit to appeal the order certifying the classes. After the Class Certification Order, the parties met and conferred and on Feb. 28, 2022, the Defendants produced the bulk of the class member information. A few days later, they supplemented that information with additional plaintiffs on March 2, 2022. The parties have identified approximately 250,000 potential class members between Jan. 17, 2013, through Dec. 17, 2021, which was the most recent date that premium and policy holder data was available prior to the Class Certification Order. They have been able to gather email addresses for at least 55% of the class members and continue to gather more emails by combining existing databases with information provided by Farmers. On Sept. 23, 2022, the Court approved the Class Counsel's notice program, as required under Rule 23. In the course of coordinating the class notices, a dispute arose about whether the Court intended to certify an ongoing Damages Class. The Defendants now seek to clarify whether the class certification order had an implicit end date or, in the alternative, seek to amend the Class Certification Order to set an end date of Dec. 28, 2021. The Plaintiffs oppose Defendants' motion because they specifically proposed an ongoing Damages Class, which they argue the Court approved by not including an end date in the Class Certification Order. The Defendants urge the Court to utilize its authority under Federal Rule of Civil Procedure 60(a) to clarify the Class Certification Order and correct an oversight or omission. Rule 60(a) authorizes the Court to correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. However, Judge Tunheim finds that the absence of a specific end date in the certified Damages Class was not an oversight by the Court because the Court did not intend to set an end date to class membership. However, he holds that Rule 60(a) does provide the Court with the power to fix an apparent typographical mistake in the Damages and Injunctive Classes, which does not alter the composition of the classes. The classes will therefore read as follows: Damages Class: All persons or entities that purchased an insurance policy on or after Jan. 17, 2013, within the state of Minnesota from any of the Defendant Insurers that provided for medical expense benefits under Minnesota's No Fault Act. Injunctive Class: All persons or entities that purchased an insurance policy on or after Jan. 17, 2013, within the State of Minnesota from any of the Defendant Insurers that provided for medical expense benefits under Minnesota's No Fault Act, and who maintain that policy. In the alternative, the Defendants argue that the lack of an end date makes the class unascertainable and urge the Court to amend the certified Damages Class to add an end date. Judge Tunheim disagrees and denies the motion. He opines that given that the alleged conduct is ongoing, the fact that additional members may be added to the Damages Class does not mean that class members cannot be objectively identified. Additionally, the Defendants' concern that the class will become unmanageable is unfounded. First, because the Court has also certified an Injunctive Class, membership in the class will either be limited if the practices are found to be unlawful or the practice will be upheld, and the issue of the Damages Class will be moot. Second, the class is not unmanageable simply because there is no set end date. Clearly, it is possible to add class members as necessary. Of course, potential class members must have the opportunity to opt out before the conclusion of this litigation. Plaintiffs have proposed a plan to provide notice to additional class members as they are identified. Judge Tunheim directs the parties to meet and confer so that the Defendants have the opportunity to propose their own plan and to jointly propose to the Court how additional class members should be identified. Because he did not intend to set an end date for class membership, and because the ongoing nature of the Damages Class does not make it unascertainable, Judge Tunheim denies the Defendants' motion. A full-text copy of the Court's Jan. 17, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/3bd8wkb3 from Leagle.com. Anne T. Regan -- aregan@hjlawfirm.com -- and Nathan D. Prosser -- nprosser@hjlawfirm.com -- HELLMUTH & JOHNSON PLLC, 8050 West Seventy-Eighth Street, Edina, MN 55439; David W. Asp -- DWASP@LOCKLAW.COM -- Derek C. Waller -- DCWALLER@LOCKLAW.COM -- Jennifer Jacobs -- JLMJACOBS@LOCKLAW.COM -- Kristen G. Marttila -- KGMARTTILA@LOCKLAW.COM -- and Stephen Matthew Owen -- SMOWEN@LOCKLAW.COM -- LOCKRIDGE GRINDAL NAUEN PLLP, 100 Washington Avenue South, Suite 2200, Minneapolis, MN 55401; Paul J. Phelps, SAWICKI & PHELPS, 5758 Blackshire Path, Inver Grove Heights, MN 55076, for the Plaintiffs. Emily C. Atmore -- emily.atmore@stoel.com -- John Thomas Katuska -- john.katuska@stoel.com -- Marc A. Al -- marc.al@stoel.com -- and Margaret E. Dalton, STOEL RIVES LLP, 33 South Sixth Street, Suite 4200, Minneapolis, MN 55402; Timothy W. Snider -- timothy.snider@stoel.com -- STOEL RIVES LLP, 760 Southwest Ninth Avenue, Suite 3000, Portland, OR 97205, for the Defendants. INOVIO PHARMACEUTICALS: McDermid's $44MM Class Deal Wins Final OK ----------------------------------------------------------------- In the case, PATRICK McDERMID, individually and on behalf of all others similarly situated, Plaintiff v. INOVIO PHARMACEUTICALS, INC., et al., Defendants, Civil Action No. 20-01402 (E.D. Pa.), Judge Gerald J. Pappert of the U.S. District Court for the Eastern District of Pennsylvania grants the Plaintiffs' motion for final approval of the Settlement Agreement, Plan of Allocation, award for attorneys' fees, expenses, and awards to the Lead and Representative Plaintiffs. McDermid, individually and on behalf of others similarly situated, sued Inovio, CEO J. Joseph Kim, CFO Peter D. Kies, and Vice President of Biological Manufacturing and Clinical Supply Management Robert J. Juba, Jr. alleging violations of sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 and SEC Rule 10b-5. The Plaintiffs claim that during the class period, the Defendants made several false or misleading statements regarding Inovio's progress on a COVID-19 vaccine that artificially inflated Inovio's stock price. The litigation was hotly disputed on both sides, and both parties were fully prepared to take the case forward to trial. McDermid filed his initial Complaint on March 12, 2020, and the Court appointed Manuel Williams as the Lead Plaintiff and Robbins Geller Rudman & Dowd LLP as the Lead Counsel in June of 2020. The Plaintiffs filed their Consolidated Class Action Complaint in August of 2020, and a First Amended Complaint in September of 2020. On Feb. 16, 2021, the Court granted in part and denied in part the Defendants' Motion to Dismiss. The Plaintiffs filed and fully briefed a Motion to Certify the Class, to which the Defendants filed a thorough Response. They filed a Second Amended Complaint in February of 2022, to which the Defendants filed another Motion to Dismiss. Throughout this time, the parties engaged in extensive discovery consisting of over half a million pages of documents. They eventually reached agreement, and the Court preliminarily approved their settlement. On Dec. 15, 2022, the Court held a hearing on the Final Settlement Agreement. Under the Settlement Agreement, Inovio agrees to pay an award of at least $44 million. Of that total, $30 million will be paid in cash, with the remainder paid in either seven million shares of Inovio common stock or $14 million worth of stock, whichever is greater. Each individual class member's recovery will depend on when they purchased their Inovio stock, how much they paid for their stock, and how many shares the individual purchased. Judge Pappert states that pursuant to Federal Rule of Civil Procedure 23(e), class actions may only be settled with court approval and only after a hearing that finds the settlement is fair, reasonable, and adequate. The Court must: (1) determine if the requirements for class certification under Rule 23(a) and (b) are satisfied; (2) assess whether notice to the proposed class was adequate; and (3) evaluate if the proposed settlement is fair under Rule 23(e). Because all relevant Rule 23(a) and (b) factors are met, Judge Pappert certifies the settlement class for purposes of settlement approval. He finds that (i) the "thousands" of class members who purchased Inovio stock during the class period are sufficiently numerous as to make joinder impractical under Rule 23(a); (ii) the issues of law and fact in this case are common to all class members; (iii) the Lead Plaintiff's claims are typical of those of all class members; (iv) the named Plaintiffs' interests align with those of other class members, and the class counsel are qualified, experienced and capable of litigating the class' claims; (v) there are issues of law and fact common to all class members regarding Inovio's false and misleading statements; and (vi) a class action is superior to other methods of adjudication. Before turning to the merits of the Settlement Agreement, Judge Pappert determines that notice was appropriate. It was adequate and the best practicable under the circumstances. Judge Pappert then turns to whether the proposed settlement is "fair, reasonable and adequate." With the initial presumption of fairness established, Rule 23(e)(2) and the Girsh factors guide his in-depth fairness analysis. He holds that the settlement is fair, reasonable and adequate. Among other things, he finds that (i) the settlement allows class members to receive their payments quickly; (ii) the class supports the settlement; (iii) both parties had a clear sense of the strengths and weaknesses of their respective cases; (iv) conflicting expert testimony at trial would introduce further uncertainty into all of these issues; (iv) there is always a possibility of decertification; (v) Inovio's likely inability to pay a significantly greater judgment than the settlement amount favors the deal; and (vi) the settlement is reasonable. The Plaintiffs seek an attorneys' fee award of 27.5% of the settlement amount and litigation expenses of $814,374.95, plus interest earned on those amounts at the same rate and for the same period earned by the settlement fund. Lead Plaintiff Williams and Representative Plaintiff Zenoff also seek awards of $77,450.00 and $75,712.50, respectively. Judge Pappert holds that the counsel is entitled to their attorneys' fees and expenses, plus interest at the same rate and for the same period as earned by the Settlement Fund. He also finds that the Plaintiffs' requests are reasonable given the time spent on the case and success obtaining a substantial class settlement. An appropriate Order follows. A full-text copy of the Court's Jan. 18, 2023 Memorandum is available at https://tinyurl.com/3nwjaf3u from Leagle.com. INTERNATIONAL BUSINESS: Pomerantz Probes Potential Securities Suit ------------------------------------------------------------------ bakersfield.com reports that Pomerantz LLP is investigating claims on behalf of investors of International Business Machines Corporation ("IBM" or the "Company") (NYSE: IBM). Such investors are advised to contact Robert S. Willoughby at newaction@pomlaw.com or 888-476-6529, ext. 7980. The investigation concerns whether IBM and certain of its officers and/or directors have engaged in securities fraud or other unlawful business practices. On October 16, 2018, post-market, IBM issued a press release announcing its preliminary results for the third quarter of 2018. Among other items, IBM reported revenue of $18.8 billion, representing a decline of 2%, as well as slowing growth in its Strategic Imperatives segment. On this news, IBM's stock price fell $10.57 per share, or 7.63%, to close at $128.04 on October 17, 2018. Pomerantz LLP, with offices in New York, Chicago, Los Angeles, London, Paris, and Tel Aviv, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, Pomerantz pioneered the field of securities class actions. Today, more than 85 years later, Pomerantz continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomlaw.com. [GN] IOVATE HEALTH: Moore Suit Removed to C.D. Cal. ---------------------------------------------- The case styled DAVID MOORE, individually and on behalf of similarly situated individuals, Plaintiff v. IOVATE HEALTH SCIENCES U.S.A. INC., and DOES 1-10, Defendants, Case No. 22STCV38938, was removed from the Superior Court of the State of California for the County of Los Angeles to the United States District Court for the Central District of California on January 18, 2023. The Clerk of Court for the Central District of California assigned Case No. 2:23-cv-00357 to the proceeding. In the complaint, the Plaintiff alleges that as a result of Defendant's wrongful actions, consumers in California purchased Defendant's nutritional supplement products known as Purely Inspired Organic Protein Plant-Based Nutritional Shakes unaware that the sodium content contained therein was more than 20 percent higher than what was listed in nutritional information, and that the products were, therefore, misbranded and not fit for sale. The Plaintiff alleges that Defendant has violated: (1) California's Consumer Legal Remedies Act; (2) California's Unfair Competition Law; (3) and California's False Advertising Law. The complaint further asserts breach of implied warranty of merchantability, and breach of express warranty. Iovate Health Sciences U.S.A. Inc. was founded in 2003. The company's line of business includes the warehousing and storage of a general line of goods.[BN] The Defendant is represented by: Scott J. Ferrell, Esq. David W. Reid, Esq. PACIFIC TRIAL ATTORNEYS A Professional Corporation 4100 Newport Place Drive, Suite 800 Newport Beach, CA 92660 Telephone: (949) 706-6464 Facsimile: (949) 706-6469 E-mail: sferrell@pacifictrialattorneys.com dreid@pacifictrialattorneys.com JETSUITEX INC: McKeehan Suit Remanded to Los Angeles Superior Court ------------------------------------------------------------------- In the case, Jacob McKeehan v. JetSuiteX, Inc., et al., Case No. 2:22-cv-06955-JLS-SK (C.D. Cal.), Judge Josephine L. Staton of the U.S. District Court for the Central District of California grants the Plaintiff's McKeehan's Motion to Remand and remands the case to the Superior Court of the State of California for the County of Los Angeles. JetSuiteX employed McKeehan, a California resident, as a non-exempt employee. McKeehan allges that JetSuiteX engaged in a systemic pattern of wage and hour violations. On July 28, 2022, McKeehan filed a class action complaint in Los Angeles County Superior Court, asserting claims for: (1) Violation of Cal. Lab. Code Sections 1194, 1194.2, and 1197 (Unpaid Minimum Wages); (2) Violation of Cal. Lab. Code Sections 510, 1194, and 1198 (Failure to Pay Overtime); (3) Violation of Cal. Lab. Code Sections 226.7 and 512 (Failure to Provide Meal Periods); (4) Violation of Cal. Lab. Code Section 226.7 (Failure to Permit Rest Breaks); (5) Violation of Cal. Lab. Code Section 226 (Failure to Provide Accurate Itemized Wage Statements); (6) Violation of Cal. Lab. Code Sections 204 and 210 (Failure to Pay Timely During Employment); (7) Violation of Cal. Lab. Code Sections 201, 202, and 203 (Failure to Pay All Wages Due Upon Separation of Employment); and (8) Violation of Cal. Bus. & Prof. Code Section 17200 et seq. (Unfair Business Practices). McKeehan also requests attorneys' fees, where applicable. JetSuiteX removed the action to the Court on Sept. 26, 2022, asserting that subject matter jurisdiction was appropriate under the Class Action Fairness Act ("CAFA"), 28 U.S.C. Sections 1332(d). McKeehan now moves to remand the action to Los Angeles County Superior Court, arguing that the Court does not have subject matter jurisdiction because the amount in controversy is insufficient under CAFA. Judge Staton states that the Complaint seeks no specific amount in damages and the amount in controversy is not apparent by looking at the Complaint's four corners; therefore, JetSuiteX must prove by a preponderance of the evidence that the damages claimed exceed $5 million. In its Notice of Removal, JetSuiteX argues that the amount-in-controversy minimum is met on the basis of McKeehan's claims for failure to provide meal and rest periods, waiting time penalties, wage statement penalties, failure to pay minimum wages and overtime, and his request for attorneys' fees. McKeehan argues that JetSuiteX has unreasonably assumed a 60% violation rate in calculating the amount in controversy for meal and rest period claims, its assumed overtime and minimum wage violation rate is unreasonable and its estimates are duplicative, its estimates for the maximum penalty for wage statement violations and waiting time penalties are speculative, and its calculation of attorneys' fees is unsupported. Judge Staton finds that the generalized allegations in the Complaint do not support an assumption of a violation rate of 60%. She says there is simply nothing in McKeehan's allegations that makes the assumption of a 60% violation rate more reasonable than, say, a 40% violation rate or a 25% violation rate. Nor is JetSuiteX assisted by relying on various district court cases that have used a wide variety of violation rates. Because the amount-in-controversy calculation regarding minimum wages is not reasonable, neither is this liquidated damages calculation. JetSuiteX's meal and rest period violations account for $1,701,827.22 of its estimate of the amount-in-controversy. Its estimate for the minimum wage claim is $850,913.61, for liquidated damages is $850,913.61, and for the overtime claim is $1,276,573.11. Taken together, these four claims, according to JetSuiteX, place $4,680,227.55 in controversy. Judge Staton holds that she cannot rely on JetSuiteX's calculations as to these four claims. She does not assume that these four claims are valueless, but she cannot simply pull numbers from the ether in order to supply the amount-in-controversy. Without these claims, even holding all of JetSuiteX's other assumptions constant, she holds that JetSuiteX has not shown an amount-in-controversy over $5 million. Because JetSuiteX's assumptions are unfounded, it has failed to carry its burden of demonstrating a sufficient amount-in-controversy by a preponderance of the evidence and remand is appropriate. For the foregoing reasons, Judge Staton concludes that the jurisdictional threshold is not met, and McKeehan's Motion is granted. She remands the case is remanded to Los Angeles Superior Court, Case No. 22STCV24435. A full-text copy of the Court's Jan. 17, 2023 Order is available at https://tinyurl.com/yckr8tvt from Leagle.com. JOHNSON'S TREE: Arredondo FLSA Suit Transferred to M.D. Fla. ------------------------------------------------------------ The case styled GONZALO ARREDONDO and other similarly situated individuals, Plaintiff(s), v. JOHNSON'S TREE SERVICE AND STUMP GRINDING, INC., DAVID JOHNSON, and DAYNA JOHNSON, individually Defendants, Case No. 3:22-cv-06796, was transferred from the United States District Court for the Northern District of 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. 2:23-cv-00029-SPC-NPM to the proceeding. The suit is brought by Plaintiff as a collective action to recover from Defendants overtime compensation, liquidated damages, costs, and reasonable attorney's fees under the provisions of the Fair Labor Standards Act. Johnson's Tree Service and Stump Grinding, Inc. provides professional residential and commercial tree care services, having a place of business in Escambia County, Florida.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. THE LAW OFFICES OF ZANDRO E. PALMA, PA 9100 South Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 E-mail: zep@thepalmalawgroup.com The Defendants are represented by: Robert Blanchfield, Esq. ROBERT BLANCHFIELD PA 931 Village Boulevard, Suite 905-385 West Palm Beach, FL 33409 Telephone: (407) 497-0463 E-mail: Robert@Blanchfieldlawfirm.com L'OREAL USA: Gethers Sues Over Toxic Chemicals in Hair Products --------------------------------------------------------------- Shmeka Gethers, individually and on behalf of all others similarly situated, Plaintiff v. L'OREAL USA, INC., L'OREAL USA PRODUCTS, INC.; SOFT SHEEN-CARSON, LLC; SOFT SHEEN/CARSON, INC.; and SOFT SHEEN/CARSON (W.I.), INC., "L'OREAL" or "SOFT SHEEN"; and STRENGTH OF NATURE GLOBAL, LLC, a/k/a STRENGTH OF NATURE, LLC; and BEAUTY BELL ENTERPRISES, LLC d/b/a HOUSE OF CHEATHAM, INC., Defendants, Case No. 2:23-cv-00259-MDL (D.S.C., January 18, 2023) is a class action against the Defendants for breach of express warranty, breach of implied warranty, negligent misrepresentation, fraudulent concealment, unjust enrichment, breach of implied warranty of merchantability, negligence, strict liability, negligent failure to warn, negligent design defect, punitive damages, and violations of the Magnuson-Moss Act, the Adulterated or Misbranded Food and Cosmetics Act, the Federal Food, Drug, and Cosmetic Act, and the South Carolina Unfair Trade Practices Act. This action arises from a 2003 diagnosis of uterine fibroids for Ms. Gethers, which was directly and proximately caused by her regular and prolonged exposure to endocrine disrupting chemicals found in the Defendants' chemical hair straightening and/or hair relaxers products. Despite the presence of this knowledge, Defendants represented that the products were safe and effective for their intended use, says the suit. The Plaintiff brings this class action lawsuit on behalf of herself, and all similarly situated consumers who purchased the products that were harmful and defective because they contained known endocrine disrupting chemicals -- that increased the risk of various diseases and illnesses, including cancer -- and which were formulated, designed, manufactured, marketed, advertised, distributed, and sold by the Defendants. L'Oreal USA, Inc. manufactures and markets cosmetic products.[BN] The Plaintiff is represented by: J. Edward Bell, III, Esq. Aaron Jophlin, Esq. Gabrielle A. Sulpizio, Esq. BELL LEGAL GROUP 219 Ridge Street Georgetown, SC 29440 Telephone: (843) 546-2408 E-mail: jeb@belllegalgroup.com ajophlin@belllegalgroup.com gsulpizio@belllegalgroup.com - and - Danielle Ward Mason, Esq. BULLOCK WARD MASON LLC 4915 N. Main Street #426 Acworth, GA 30101 Telephone: (770) 202-4603 E-mail: danielle@bwmlaw.com L'OREAL USA: Hair Products Contain Harmful Chemicals, Bridges Says ------------------------------------------------------------------ Latonia Bridges, individually and on behalf of all others similarly situated, Plaintiff v. L'OREAL USA, INC., L'OREAL USA PRODUCTS, INC.; SOFT SHEEN-CARSON, LLC; SOFT SHEEN/CARSON, INC.; and SOFT SHEEN/CARSON (W.I.), INC., "L'OREAL" or "SOFT SHEEN"; and STRENGTH OF NATURE GLOBAL, LLC, a/k/a STRENGTH OF NATURE, LLC; and BEAUTY BELL ENTERPRISES, LLC d/b/a HOUSE OF CHEATHAM, INC., Defendants, Case No. 7:23-cv-00257-MDL (D.S.C., January 18, 2023) is a class action against the Defendants for breach of express warranty, breach of implied warranty, negligent misrepresentation, fraudulent concealment, unjust enrichment, breach of implied warranty of merchantability, negligence, strict liability, negligent failure to warn, negligent design defect, punitive damages, and violations of the Magnuson-Moss Act, the Adulterated or Misbranded Food and Cosmetics Act, the Federal Food, Drug, and Cosmetic Act, and the South Carolina Unfair Trade Practices Act. This action arises from a 2015 diagnosis of uterine fibroids and endometriosis for Ms. Bridges, which was directly and proximately caused by her regular and prolonged exposure to endocrine disrupting chemicals found in the Defendants' chemical hair straightening and/or hair relaxers products. Despite the presence of this knowledge, Defendants represented that the products were safe and effective for their intended use, says the suit. The Plaintiff brings this class action lawsuit on behalf of herself, and all similarly situated consumers who purchased the products that were harmful and defective because they contained known endocrine disrupting chemicals that increased the risk of various diseases and illnesses, including cancer, and which were formulated, designed, manufactured, marketed, advertised, distributed, and sold by the Defendants. L'Oreal USA, Inc. manufactures and markets cosmetic products.[BN] The Plaintiff is represented by: J. Edward Bell, III, Esq. Aaron Jophlin, Esq. Gabrielle A. Sulpizio, Esq. BELL LEGAL GROUP 219 Ridge Street Georgetown, SC 29440 Telephone: (843) 546-2408 E-mail: jeb@belllegalgroup.com ajophlin@belllegalgroup.com gsulpizio@belllegalgroup.com - and - Danielle Ward Mason, Esq. BULLOCK WARD MASON LLC 4915 N. Main Street #426 Acworth, GA 30101 Telephone: (770) 202-4603 E-mail: danielle@bwmlaw.com LABCORP DRUG: Kaba Suit Removed to S.D. Ind. -------------------------------------------- The case styled MOHAMED KABA and ABDUL LEE, on behalf of themselves and a class of similarly situated, Plaintiffs v. LABCORP DRUG DEVELOPMENT INC. and AEROTEK, INC., Defendants, Case No. 49D04-2212-CT-042652, was removed from the Marion County Superior Court, City of Indianapolis, Indiana, to the United States District Court for the Southern District of Indiana on January 13, 2023. The Clerk of Court for the Southern District of Indiana assigned Case No. 1:23-cv-00084-JMS-TAB to the proceeding. In the complaint, Plaintiffs allege that they were employees of Aerotek assigned to work at Defendant Labcorp Drug Development, Inc. d/b/a Covance. The Plaintiffs assert that they and a class of current and former Muslim employees were subjected to a hostile work environment and denied reasonable accommodations to pray by Aerotek. The Plaintiffs also allege they were among 109 workers terminated on August 19, 2021 but were not among the workers recalled to work in early September 2021 in retaliation for their complaints about the work environment and requests for reasonable accommodations to pray. They seek for themselves and members of the class, back pay, compensatory and punitive damages, reinstatement (or front pay), attorney fees and costs, and pre-judgment and post-judgment interest. Labcorp Drug Development Inc. is a contract research organization headquartered in Burlington, North Carolina. Aerotek, Inc. is an employment agency, providing technical, professional and industrial recruiting and staffing services to clients.[BN] Defendant Aerotek, Inc. is represented by: Andrew Scroggins, Esq. Christopher DeGroff, Esq. SEYFARTH SHAW LLP 233 South Wacker Drive, #8000 Chicago, IL 60606 Telephone: (312) 460-5000 E-mail: ascroggins@seyfarth.com cdegroff@seyfarth.com LATCH INC: Rosen Law Named Lead Counsel in Brennan Securities Suit ------------------------------------------------------------------ In the case, SLATER BRENNAN, Individually and On Behalf of All Others Similarly Situated, Plaintiff v. LATCH, INC. f/k/a TS INNOVATION ACQUISITIONS CORP., LUKE SCHOENFELDER, GARTH MITCHELL, and BARRY SCHAEFFER, Defendants, Case No. 1:22-cv-07473-JGK (S.D.N.Y.), Judge John G. Koeltl of the U.S. District Court for the Southern District of New York appointed VB PTC Establishment as Trustee of Gersec Trust as the Lead Plaintiff and The Rosen Law Firm, P.A., as the Lead Counsel. The securities class action has been filed against the Defendants, alleging violations of the federal securities laws. Pursuant to the Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. Section 78u-4(a)(3)(A)(i), on Aug. 31, 2022, a notice was issued to potential class members of the action informing them of their right to move to serve as lead plaintiff within 60 days of the date of the issuance of said notice. On Oct. 31, 2022, the Movant asked the Court to appoint it as the Lead Plaintiff and approve its selection of Rosen Law as the Lead Counsel. Judge Koeltl states that PSLRA provides, inter alia, that presumptively the most-adequate plaintiff to serve as lead plaintiff is the person or group of persons that has either filed a complaint or has made a motion in response to a notice and has the largest financial interest in the relief sought by the Class and satisfies the requirements of Fed. R. Civ. P. 23. Finding that the Movant has the largest financial interest and that prima facie satisfies the typicality and adequacy requirements of Fed. R. Civ. P. 23., he appoints the Movant as the Lead Plaintiff pursuant to Section 21D(a)(3)(B) of the Exchange Act, 15 U.S.C. Section 78u-(a)(3)(B), and approves Rosen Law as the Lead Counsel. The Lead Counsel, after being appointed by the Court, will manage the prosecution of the litigation. The Lead Counsel is to avoid duplicative or unproductive activities. The Clerk is directed to close all pending motions. A full-text copy of the Court's Jan. 17, 2023 Order is available at https://tinyurl.com/42v8jcv3 from Leagle.com. MERCEDES-BENZ USA: Files Motion to Dismiss M274 Engine Class Suit ----------------------------------------------------------------- David A. Wood at CarComplaints.com reports that Mercedes-Benz says an M274 engine lawsuit should be dismissed because the plaintiff lacks standing to sue. The plaintiff, who owns a 2016 Mercedes C300, alleges the M274 pistons cause engine failure. The Mercedes M274 engine lawsuit alleges the 2016 C300 owned by the plaintiff suffered engine problems when the vehicle had about 95,000 miles on the odometer. According to the engine lawsuit, a dealership said piston failure occurred in one cylinder and damaged other cylinders, and to replace the M274 engine would cost $20,000. The plaintiff argues Mercedes should have paid for the repair because the C300 had just 95,000 miles on it, but the automaker refused. An independent mechanic charged her $7,000 and the exchange of her M274 engine for a used long block engine. The plaintiff claims Mercedes knew the M274 engines were defective because the National Highway Traffic Safety Administration allegedly opened a formal investigation in October 2022. However, NHTSA only received a petition to open a formal investigation into model year 2015 Mercedes C300 engine piston wrist pins. The government has not yet granted or denied the petition to open a formal investigation. Motion to Dismiss the Mercedes M274 Engine Lawsuit According to attorneys for Mercedes-Benz, the plaintiff doesn't have standing to assert claims on behalf of a class of vehicle owners. Mercedes argues the M274 class action is based on claims predicated on an alleged defect with the pistons in certain vehicles equipped with M274 engines. However, the problem allegedly doesn't include her vehicle. The automaker says all the claims are based on an inquiry by the National Highway Traffic Safety Administration concerning certain pistons in only 2015 Mercedes C300 vehicles equipped with piston "wrist pins" having a particular coating. But the owner who filed the M274 engine lawsuit has a 2016 C300, and Mercedes argues any problem with the plaintiff's vehicle could not have been caused by the alleged wrist pin issue. Specifically, Mercedes-Benz says her 2016 C300 contains a different engine configuration with piston wrist pins without the coating that is the subject of the NHTSA inquiry. "In fact, the NHTSA document plaintiff relies on for her defect allegations specifically declined to include engine pistons in vehicles other than the 2015 C300 for this exact reason. Plaintiff fails to plead facts connecting her vehicle's alleged issue to that described in the NHTSA inquiry; to the contrary, her vehicle could not have experienced the alleged wrist pin defect-i.e., she has not suffered the injury she attempts to allege." - Mercedes This allegedly means the M274 engine class action lawsuit should be dismissed for lack of standing. The Mercedes-Benz M274 lawsuit was filed in the U.S. District Court for the Central District of California: Lena Jamil v. Mercedes-Benz USA, LLC. The plaintiff is represented by The Katriel Law Firm, P.C., and The Kalfayan Law Firm, APC.[GN] MRS BPO: Faces Blum Suit Over Unfair Debt Collection Practices -------------------------------------------------------------- MIRIAM BLUM, individually and on behalf of all others similarly situated, Plaintiff v. MRS BPO, L.L.C., Defendant, Case No. 501464/2023 (N.Y. Sup., Kings Cty., January 16, 2023) arises from the Defendant's alleged deceptive, misleading and unfair representations with respect to its collection efforts in violation of the Fair Debt Collection Practices Act. According to the complaint, the Defendant collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and Internet. The Defendant's collection efforts with respect to this alleged debt from the Plaintiff caused the Plaintiff to suffer concrete and particularized harm, inter alia, because the FDCPA provides the Plaintiff with the legally protected right to not to be misled or treated unfairly with respect to any action for the collection of any consumer debt, says the suit. The Plaintiff has suffered wasted time and annoyance because of the Defendant's misrepresentations and omissions concerning the character, legal status and amount of the debt. As a result of the Defendant's deceptive, misleading and unfair debt collection practices, Plaintiff has been damaged, the suit asserts. MRS BPO, L.L.C. is a debt collection agency.[BN] The Plaintiff is represented by: Robert Yusko, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Telephone: (201) 282-6500 NATIONAL RESTAURANT: Gallagher Hits Deceptive Business Practices ---------------------------------------------------------------- SEAN GALLAGHER, PIAGET VENTUS, individually on behalf of themselves and all others similarly situated, Plaintiffs v. NATIONAL RESTAURANT ASSOCIATION SOLUTIONS, LLC; NATIONAL RESTAURANT ASSOCIATION D/B/A SERVSAFE and other related entities and individuals, Defendants, Case No. 1:23-cv-00435 (S.D.N.Y., January 18, 2023) seeks to remedy the deceptive and misleading business practices of the National Restaurant Association Solutions, LLC and its related entities, including those associated with and doing business as "ServSafe" with respect to the marketing and sales of the product known as ServSafe. ServSafe is publicly marked as "training" or "certification" of basic hygiene and cleaning routines to employees and individuals seeking employment in the restaurant and/or hospitality industry. According to the complaint, ServSafe is effectively a valueless service or product because the monies paid by consumers like Plaintiffs for ServSafe were used by Defendants to fund and finance the National Restaurant Association's lobbying efforts aimed at diminishing workers' rights. The Plaintiffs were required by their employers (who upon information and belief are members of the National Restaurant Association) to participate and pay ServSafe before being allowed to obtain employment. Unknowingly, Plaintiffs paid monies to ServSafe, which was then funneled to the NRAS for lobbying efforts against the interests of Plaintiffs' and similarly situated service workers, says the suit. The Plaintiffs assert that Defendants' policy and practice of utilizing the funds paid to ServSafe to fund lobbying efforts on behalf of an advocacy group for restaurant's rights violates good business practices and the laws of various states in the United States, including New York and California. National Restaurant Association Solutions, LLC operates as a food service trade association. The Company promotes entrepreneurship and hospitality.[BN] The Plaintiffs are represented by: Michael A. Tompkins, Esq. Jeffrey K. Brown, Esq. Brett R. Cohen, Esq. Anthony M. Alesandro, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 E-mail: mtompkins@leedsbrownlaw.com jbrown@leedsbrownlaw.com bcohen@leedsbrownlaw.com aalesandro@leedsbrownlaw.com NAVY FEDERAL: Wilkins Class Suit Dismissed Without Prejudice ------------------------------------------------------------ In the case, JACQUELINE WILKINS, individually, and on behalf of all others similarly situated, Plaintiff v. NAVY FEDERAL CREDIT UNION, Defendant, Civil Action No. 22-2916 (SDW)(ESK) (D.N.J.), Judge Susan D. Wigenton of the U.S. District Court for the District of New Jersey: a. denies the Plaintiff's Motion to Remand; and b. granted the Defendant's Motion to Dismiss without prejudice. Before the Court are (1) the Defendant's Motion to Dismiss, (2) Magistrate Judge Edward S. Kiel's Report and Recommendation ("R&R"), dated Sept. 14, 2022, recommending that Wilkins' Motion to Remand be granted, and (3) the Defendant's objections to the R&R. The Plaintiff, a citizen of New Jersey, maintains a bank account with the Defendant. The Defendant is a national credit union with its principal place of business in Virginia. It operates banks and conducts business in the State of New Jersey. The Plaintiff brings the action individually and on behalf of two putative classes: (1) All persons who maintain an account with the Defendant and incurred unreimbursed losses due to fraud-induced transactions on Zelle ("Nationwide Class"); and (2) all New Jersey persons who maintain an account with the Defendant and incurred unreimbursed losses due to fraud-induced transactions via Zelle ("New Jersey Subclass"). On March 17, 2021, the Plaintiff received an automated voicemail from someone purporting to be an agent at her utility company, PSE&G Electric ("PSE&G"). Unbeknownst to her, PSE&G did not leave the automated voicemail -- a fraudster did. The voicemail explained that the Plaintiff's electric bill was overdue and that her service would be disconnected unless she made an immediate payment via Zelle -- a payment transfer service offered by 1,500 large banks in the United States, including the Defendant. The Plaintiff, fearful that her power would be shut off because she indeed had not paid her electric bill for months, promptly transferred via Zelle to the account provided in the voicemail. In total, the Plaintiff transferred via Zelle $2,996.02 to the Fraudsters. The next day, the Plaintiff learned from PSE&G's customer service that she had been defrauded. She immediately reported the fraud to the Defendant, but the Defendant refused to reimburse her for the $2,996.02 she sent to the Fraudsters. The Plaintiff now claims that the Defendant has falsely marketed Zelle as a fast, safe, and secure way for consumers to send money, and that the Defendant has omitted from its marketing "huge, undisclosed security risks" associated with Zelle. She claims that Defendant, by failing to provide reimbursement for such transactions, has breached its contractual obligation. Because of the Defendant's misrepresentations about Zelle, the Plaintiff asserts, users like her sign up for and use the Zelle service without the benefit of accurate information and later end up with huge, unreimbursed losses due to fraud. She maintains that if these "extreme risks" had been disclosed to her and the members of the Classes, they never would have signed up for Zelle, and thus never would have been injured by using the Zelle service. On April 18, 2022, the Plaintiff filed the putative class action in the Superior Court of New Jersey ("State Court") on behalf of the Classes. The Classes allegedly comprise "thousands of similarly situated customers of the Defendant who have signed up for the Zelle money transfer service and who: have been the victim of fraud on the Zelle service; who have incurred losses due to that fraud that have not been reimbursed by the Defendant; and who were entitled by the marketing representations of the Defendant regarding the Zelle service and by the Defendant's contract promises to a full reimbursement of losses caused by fraud on the Zelle service." The Complaint asserts claims under the New Jersey Consumer Fraud Act ("NJCFA") on behalf of only the New Jersey Subclass and for breach of contract on behalf of the Nationwide Class. In addition to certain injunctive relief, the Complaint seeks several types of monetary relief: restitution of all fees that Plaintiff and the Classes paid to Defendant; disgorgement of any ill-gotten gains derived from Defendant's misconduct; actual and/or compensatory damages; punitive and exemplary damages; pre-judgment interest; and reimbursement for all costs and expenses accrued by the Plaintiff arising from the action, including attorneys' fees and costs. On May 18, 2022, the Defendant timely removed the action to federal court by invoking subject matter jurisdiction pursuant to the Class Action Fairness Act of 2005 ("CAFA"). On June 8, 2022, it moved pursuant to Rule 12(b)(6) to dismiss the Plaintiff's claims because she failed to state any claim under the NJCFA or for breach of contract. The parties have fully briefed the Motion to Dismiss. On June 10, 2022, Plaintiff moved to remand the action back to State Court, and the parties timely briefed the Motion to Remand. She argued, inter alia, that the Defendant had failed to adequately prove CAFA's $5 million amount-in-controversy requirement. On Sept. 14, 2022, Magistrate Judge Kiel issued the R&R, in which he recommended that the Plaintiff's Motion to Remand be granted because, inter alia, the Defendant had not met the amount-in-controversy threshold by a preponderance of the evidence. On Sept. 28, 2022, the Defendant filed its Objection, which the parties timely briefed. It maintains that the Third Circuit's legal certainty test is binding precedent, and accordingly, Magistrate Judge Kiel erred by not applying it to determine whether the amount-in-controversy requirement had been met; that the Plaintiff's damages allegation should be treated as typical of all class members for purposes of establishing the amount in controversy; and that, even under the preponderance-of-the-evidence standard, Defendant has adequately shown the amount-in-controversy requirement. Judge Wigenton first addresses the R&R to determine whether it has jurisdiction to decide the Motion to Dismiss. She explains that pursuant to CAFA, federal district courts have original jurisdiction over class actions where (1) the matter in controversy (i.e., the aggregated claims of the individual class members) exceeds the sum or value of $5 million, exclusive of interest and costs, (2) there is minimal diversity (i.e., any member of a class of plaintiffs is a citizen of a state different from any defendant), and (3) the class has at least 100 members. CAFA instructs the District Court to determine whether it has jurisdiction by adding up the value of the claim of each person who falls within the definition of the plaintiff's proposed class and determine whether the resulting sum exceeds $5 million. The first test ("McNutt preponderance test") applies to cases in which a party challenges the facts underlying the notice of removal of the party asserting jurisdiction. The second test ("Red Cab legal certainty test") applies in cases where the jurisdictional facts are not contested and the amount in controversy is 'determined in whole or in part' by applicable law. The third test ("Morgan legal certainty test") also uses the phrase "legal certainty" but, crucially, it applies that burden to the party asserting jurisdiction. As Magistrate Judge Kiel explained in the R&R, the Plaintiff does not dispute that CAFA's diversity and class size requirements are met. Then, as now, the Plaintiff only challenged whether the $5 million amount-in-controversy requirement was met. While Magistrate Judge Kiel concluded that the jurisdictional threshold was not exceeded, he declared that the legal certainty test has been disavowed, and therefore imposed upon the Defendant the burden to establish the amount in controversy by a preponderance of the evidence. Because the legal certainty test remains good law in the Third Circuit, Judge Wigenton declines to adopt the R&R. Judge Wigenton opines that because Magistrate Judge Kiel erroneously concluded that the Red Cab legal certainty test "had been disavowed," the R&R failed to fully consider the potentially applicable standards to the amount-in-controversy dispute. That determination is at the core of this jurisdictional challenge. The foregoing facts and the applicable law show that the Red Cab legal certainty test applies, and therefore, Judge Wigenton must decide whether it is clear to a legal certainty that the Plaintiff cannot recover the amount claimed. Under that standard, she opines that the amount-in-controversy threshold has been met. In any event, she is satisfied that the Defendant has shown by a preponderance of the evidence that the jurisdictional threshold has been met. Hence, the amount-in-controversy requirement has been met, and the Plaintiff's Motion to Remand is denied. Therefore, the Court has jurisdiction to decide the Defendant's Motion to Dismiss. The Defendant raises the following arguments in support of its Motion to Dismiss: (1) the NJCFA does not apply to the Plaintiff's claims because Virginia law governs this dispute, and the Virginia consumer fraud statute exempts the Defendant; (2) the Plaintiff has failed to meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b); (3)the Plaintiff has failed to adequately plead that the Defendant engaged in unlawful conduct under the NJCFA; (4) the Plaintiff fails to plead a breach of contract because she does not allege that the Defendant had an enforceable obligation to investigate and reimburse her for fraudulent transactions; and (5) the Plaintiff fails to plead a breach of the covenant of good faith and fair dealing because an implied covenant cannot create duties beyond -- and counter to -- the obligations expressly enumerated in an enforceable contract. Judge Wigenton grants the Defendant's Motion to Dismiss. She dismisses the Plaintiff's NJCFA claims (Count 1). She finds that the Plaintiff has not adequately pled an actionable misrepresentation under the NJCFA. Relatedly, besides alleging that she was defrauded by third parties who misrepresented their identity, the Plaintiff has not alleged any facts to suggest that the integrity of Zelle's money transfer process, itself, was unsafe or insecure. The Plaintiff has not also raised any plausible inference to show that the Defendant knowingly concealed either the risks of Zelle or a secret policy. Judge Wigenton dismisses the Plaintiff's contractual claims (Count 2). She opines that the Plaintiff has not alleged a "legally enforceable obligation" under the Deposit Agreement or any other source of law, and consequently she has not alleged any breach thereof. And, because the parties have an agreement that expressly created valid and binding rights, an implied covenant of good faith and fair dealing is inapplicable to those rights. The Plaintiff only mentions bad faith in conclusory fashion. Bare assertions of bad faith, standing alone, cannot survive a motion to dismiss, and therefore the Plaintiff's implied covenant claim fails. For these reasons, Judge Wigenton grants the Defendant's Motion to Dismiss without prejudice. An appropriate order follows. A full-text copy of the Court's Jan. 18, 2023 Opinion is available at https://tinyurl.com/2p8wdw6v from Leagle.com. NEWAGE INC: Taylor Sues Over False Registration Statements ---------------------------------------------------------- DANIEL TAYLOR, individually and on behalf of all others similarly situated, Plaintiff v. BRENT WILLIS, FRED COOPER, TIM HAAS, REGINALD KAPTEYN, ALICIA SYRETT, GREGORY GOULD, CHUCK ENCE, CARL AURE, KEVIN MANION, ED BRENNAN, AMY KUZDOWICZ, GREG FEA, AND CRAIG THIBODEAU, Defendants, Case No. 1:23-cv-00127 (D. Colo., January 17, 2023) is a federal securities class action on behalf of the Plaintiff and a class consisting of all persons other than Defendants who purchased the securities of NewAge Inc. for the time period January 18, 2018 through and including October 18, 2022, seeking to recover damages caused by Defendants' violations of federal securities laws and pursue remedies under the Securities Exchange Act of 1934. According to the complaint, the Defendants made false and/or misleading statements as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company and Defendants had no relationship with the military or FamilyMart; (ii) the Company and Defendants overstated the business agreements that they did have; (iii) the Company and Defendants never produced or sold a proprietary CBD beverage; (iv) the Company lacked adequate internal controls; (v) as a result, the Company had a heightened risk of regularly scrutiny and was ultimately subject to an SEC investigation and action; and (vi) as a result of the foregoing, Defendants' statements about the Company's business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times, says the suit. As a direct and proximate result of Defendants' wrongful conduct, Plaintiff and the other members of the Class suffered damages in connection with their respective purchases and sales of the Company's securities during the Class Period, the suit asserts. NewAge purports to produce and sell various beverages and other health products. NewAge wholly owns subsidiaries that sell products under a variety of brand names.[BN] The Plaintiff is represented by: J. Alexander Hood II, Esq. Jeremy A. Lieberman, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (917) 463-1044 E-mail: ahood@pomlaw.com jalieberman@pomlaw.com NORTHERN TRUST: Emerson Suit Removed to N.D. Cal. ------------------------------------------------- The case styled CHANDLER EMERSON, individually and on behalf of all others similarly situated, Plaintiff v. NORTHERN TRUST CORPORATION, NORTHERN TRUST COMPANY, and DOES 1 through 50, Defendants, Case No. 22CV00992, was removed from the Superior Court of the State of California, Mendocino County, to the United States District Court for the Northern District of California on January 18, 2023. The Clerk of Court for the Northern District of California assigned Case No. 1:23-cv-00241 to the proceeding. The Plaintiff asserts eight putative claims against Northern Trust and NT CORP: (1) breach of fiduciary duty (based on the tax return preparation charges); (2) accounting (as to the tax-return charges); (3) unjust enrichment (based on the tax return preparation charges); (4) violation of the California Unfair Competition Law, Business and Professions Code (based on the tax return preparation and class action service charges); (5) breach of fiduciary duty (based on the class action service charges); (6) accounting (as to the class action service charges); (7) unjust enrichment (based on the class action service charges); and (8) violations of the California's Elder Abuse and Dependent Adult Civil Protection Act. Northern Trust Corporation is a financial services company headquartered in Chicago that caters to corporations, institutional investors, and ultra high net worth individuals.[BN] The Defendants are represented by: Quyen L. Ta, Esq. Matthew H. Dawson, Esq. KING & SPALDING LLP 50 California Street, Suite 3300 San Francisco, CA 94111 Telephone: (415) 318-1200 Facsimile: (415) 318-1300 E-mail: qta@@kslaw.com mdawson@kslaw.com - and - Rachael M. Trummel, Esq. KING & SPALDING LLP 110 N. Wacker Drive, Suite 3800 Chicago, IL 60606 Telephone: (312) 995-6333 Facsimile: (312) 995-6330 E-mail: rtrummel@kslaw.com PACE ASSEMBLY: Fails to Pay Proper Wages, Beechboard Says --------------------------------------------------------- JAMIE BEECHBOARD and GENTRY LINDER, individually and on behalf of others similarly situated, Plaintiffs v. PACE ASSEMBLY COMPANY, Defendant, Case No. 2:23-cv-00002 (M.D. Tenn., January 18, 2023) is brought against the Defendant as a collective action under the Fair Labor Standards Act to recover unpaid minimum wages, unpaid overtime compensation and other damages for Plaintiffs and other similarly situated current and former piece-rate employees. The Plaintiffs assembled bicycles on behalf of Defendant primarily in Tennessee during all times material to this action. They were compensated based on the number and type of bicycles they assembled on behalf of Defendant each work day. The complaint alleges that the Defendant has had a common plan, de facto policy and practice of causing Plaintiffs and class members' wages to fall below the applicable FLSA minimum wage rates of pay. The Defendant also failed to pay all overtime compensation earned by Plaintiff and class members, says the suit. Pace Assembly Company sends its piece-rate employees to Wal-Mart locations and other companies to assemble bicycles.[BN] The Plaintiffs are represented by: Gordon E. Jackson, Esq. J. Russ Bryant, Esq. Robert E. Turner, IV, Esq. Robert E. Morelli, III, Esq. JACKSON SHIELDS YEISER HOLT OWEN & BRYANT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 754-8524 E-mail: gjackson@jsyc.com rbryant@jsyc.com rturner@jsyc.com rmorelli@jsyc.com PATERSON CAR: Court Approves Revised $8K Class Deal in Vidal Suit ----------------------------------------------------------------- In the case, ALFONSO VIDAL, individually and on behalf of all others similarly situated, Plaintiff v. PATERSON CAR EMPORIUM LLC and EFI KLIETMEN, Defendants, Civil No. 19-cv-12711 (KSH) (CLW) (D.N.J.), Judge Katherine S. Hayden of the U.S. District Court for the District of New Jersey grants the parties' joint motion for approval of their revised settlement agreement. Vidal filed the collective action against his former employer, Paterson Car Emporium LLC ("PCE"), and senior employee Efi Klietman, for alleged violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sections 201 et seq., the New Jersey Wage and Hour Law ("NJWHL"), N.J.S.A. 34:11-56a et seq., and the New Jersey Wage Payment Law ("NJWPL"), N.J.S.A. 34:11-4.1 et seq. The matter arises from Vidal's employment as a mechanic and assemblyman for PCE. Vidal alleges that during his three-year tenure with the company, he generally worked seventy-hour weeks but was only paid a fixed weekly rate of $850. He further alleges that the Defendants failed to adequately compensate approximately 17 other employees in furtherance of PCE's corporate policy of minimizing labor costs and denying employees compensation. On May 20, 2019, Vidal filed a four-count complaint on behalf of himself and a class of similarly situated persons asserting violations of the FLSA, the NJWHL, and the NJWPL. He alleged that the Defendants: (i) knowingly denied him and other PCE employees overtime compensation to which they were entitled in violation of the FLSA and NJWHL; and (ii) made unlawful deductions from his wages and failed to timely pay him for his work in violation of the NJWPL. Over the next two years, the parties engaged in discovery under the supervision of Magistrate Judge Waldor. On May 7, 2021, the parties informed the Court that they had reached a settlement in principle. That October, they filed a joint motion for settlement approval, which included a copy of the proposed settlement agreement and an accompanying joint letter setting forth legal authority and the parties' description of the terms and representations about how they were reached. However, several aspects of the settlement agreement caused the Court concern, including overly broad release and confidentiality provisions which contradicted the parties' representations in their joint letter. Accordingly, the Court entered an order denying the motion without prejudice, and directing the parties to either appear on the record to clarify the provisions referenced in the order to ensure full compliance with the FLSA, or to request permission to submit a settlement agreement with appropriately-tailored provisions. The parties elected the latter option and filed an amended motion for settlement approval on June 26, 2022. The motion consists of a letter in which the parties represent that they edited the original agreement to narrow the scope of the release and confidentiality provisions in accordance with the Court's order," as well as a proposed revised settlement agreement. As was the case with their original motion, the revised settlement agreement requires the Defendants to pay a total of $8,000 allocated $2,171.06 to attorneys' fees, $1,486.80 to costs, and the balance of $4,342.14 payable to Vidal. Judge Hayden states that where the district court is asked to approve a settlement agreement, it must ensure that the parties' compromise: (i) is "fair and reasonable"; and (ii) resolves "a bona fide dispute over FLSA provisions." She finds that (i) in light of the stark contrast between the parties' factual positions, their dispute is bona fide; (ii) the proposed settlement is fair and reasonable to Vidal; and (iii) she is satisfied that the parties have addressed the concerns raised in the Court's May 26, 2022 order by narrowing the scope of the settlement agreement's release and confidentiality provisions. Having determined that approval of the parties' proposed settlement agreement is appropriate, Judge Hayden turns to the request for attorneys' fees and costs. Vidal's counsel requests $3,657.86 comprised of $2,171.06 in fees and $1,486.80 in costs. The amount sought represents around 45% of the total settlement amount, which courts have permitted in the FLSA context. Judge Hayden opines that the $3,657.86 sought is well below the lodestar amount of $17,612.50 provides further support for counsel's position that the request is reasonable. Accordingly, she approves the request for attorneys' fees and costs. For the foregoing reasons, the parties' joint motion for approval of their revised settlement agreement is granted. An appropriate order will be issued. A full-text copy of the Court's Jan. 18, 2023 Opinion is available at https://tinyurl.com/5bcrxvh3 from Leagle.com. REALPAGE INC: Faces Another Rental Price Fixing Suit in Florida --------------------------------------------------------------- therealdeal.com reports that class-action lawsuits against RealPage and property owners continue to pile up. Most recently, plaintiffs in Florida have filed a claim that residential property owners in Florida's largest cities, including Tampa, Miami, Orlando and Jacksonville, colluded in fixing rents by using RealPage's revenue management software, the Miami New Times reported. Plaintiffs Zachary Corradino and Samantha Taylor Reyes allege defendants - including Avalon Bay, GreyStar, Camden Property Trust, and Lincoln Property Co., among others. - had either an implicit or explicit an agreement to control rents and unit inventory through the use of RealPage, according to the outlet. That arrangement effectively eliminated competition in those markets, the lawsuit alleges. Sharing private, real-time pricing and supply data to RealPage and its client base was a condition of using the service, the lawsuit claims. Data on competitors was exclusively available to the alleged co-conspirators, offering landlords a way to circumvent the market, effectively turning the law of supply and demand on its head, the lawsuits allege. "With the assurance that their competitors are respectively setting Miami, Orlando, Jacksonville, and Tampa rental prices using the same algorithm, each defendant property manager could allow a larger share of their units to remain vacant while maintaining higher rental prices across their properties," the lawsuit alleges, according to the Miami New Times. "This increased their revenue at the expense of renters." Corradino and Reyes claim they paid inflated rent at the Village of Merrick Park in Coral Gables - managed by ZRS, which has more than 50,000 rental units in the U.S. - at the start of 2022, the outlet reported. That RealPage discouraged its customers from bargaining with renters is among the allegations contained in lawsuits across the country as a result of a ProPublica investigation that was published in the fall of 2022. Jeffrey Roper, the architect of RealPage's software whose name appears in numerous other class action suits, allegedly stated that the software was meant to circumvent agents who had "way too much empathy" and hesitated to push rents higher. In the words of one property manager quoted in another lawsuit, "we are all technically competitors . . . . [but RealPage] helps us work together . . . . to work with a community in pricing strategies, not to work separately." "Defendant RealPage repeatedly and explicitly emphasizes that for the software to work properly, everyone needs to accept its suggested price at least 80 – 90 percent of the time," the Florida lawsuit claims, according to the New Times RealPage, for its part, told the News Times it is defending against the lawsuits and claimed the allegations "are completely without merit." Other defendants to the Florida suit either declined to comment or did not respond to requests for comment. Previously, RealPage has said it can prevent rents from reaching unaffordable levels because the technology can detect drops in demand and respond by lowering prices.[GN] ROCKWELL COLLINS: Alvarado Labor Suit Removed to C.D. Cal. ---------------------------------------------------------- The case styled ISRAEL ALVARADO, an individual, on behalf of himself and on behalf of all persons similarly situated, Plaintiff v. ROCKWELL COLLINS, INC., a Corporation; AERONAUTICAL RADIO, INC., a Corporation; RAYTHEON TECHNOLOGIES CORPORATION, a Corporation; and DOES 1 to 50, inclusive, Defendants, Case No. 22STCV34023, was removed from the Superior Court of the State of California for the County of Los Angeles, to the United States District Court for the Central District of California on January 18, 2023. The Clerk of Court for the Central District of California assigned Case No. 2:23-cv-00400 to the proceeding. The complaint asserts one cause of action for unfair competition in violation of the California Business and Professions Code premised on unfair business practices founded on alleged violations of California law including: (1) the failure to pay minimum and overtime wages based on off-the-clock work and because of rounding; (2) failure to pay minimum and overtime wages at the regular rate of pay; (3) failure to provide off-duty meal and rest periods and to pay meal and rest period premiums; (4) failure to reimburse business expenses; (5) failure to provide accurate wage statements; (6) failure to pay sick time at the regular rate of pay; and (7) failure to pay wages due at the time of separation, against Defendants. Rockwell Collins, Inc.'s line of business includes the manufacturing of search and navigation equipment.[BN] The Defendants are represented by: Timothy M. Rusche, Esq. THXSSEYFARTH SHAW LLP 601 South Figueroa Street, Suite 3300 Los Angeles, CA 90017-5793 Telephone: (213) 270-9600 Facsimile: (213) 270-9601 E-mail: trusche@seyfarth.com - and - Jonathan L. Brophy, Esq. Romtin Parvaresh, Esq. Miguel Ramirez, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 E-mail: jbrophy@seyfarth.com rparvaresh@seyfarth.com mramirez@seyfarth.com SOFT-LITE LLC: McCall Stayed Until 6th Cir. Resolves Holder Appeal ------------------------------------------------------------------ In the case, JIMMIE McCALL, on behalf of himself and all others similarly situated, Plaintiff v. SOFT-LITE L.L.C., Defendant, Case No. 5:22-CV-816 (N.D. Ohio), Judge Sara Lioi of the U.S. District Court for the Northern District of Ohio, Eastern Division: a. defers ruling on McCall's motion for conditional certification, expedited opt-in discovery, and court-supervised notice to potential opt-in plaintiffs; and b. stays the case until further order. McCall, a former employee of Soft-Lite, initiated the action on May 18, 2022, by filing his complaint alleging violations by Soft-Lite of the Fair Labor Standards Act, 29 U.S.C. Section 201-219 ("FLSA"). McCall seeks to bring claims on behalf of others "similarly situated." To that end, McCall now seeks an order of the Court conditionally certifying a collective consisting of "all former and current manufacturing employees of Soft-Lite L.L.C. between the last three years and the present." In his motion, he identifies how his complaint states five ways in which he and the collective are similarly situated. McCall's motion applies a well-recognized two-step conditional certification process that seems to have been first used in Lusardi v. Xerox Corp., 118 F.R.D. 351, 352 (D. N.J. 1987) to determine whether potential plaintiffs are "similarly situated." Under that process, the Court may conditionally certify a collective (giving notice to potential plaintiffs who may wish to opt in and providing a period of limited discovery on the "similarly situated" requirement) and then, after the limited discovery, consider whether to decertify the collective. Judge Lioi holds that the Sixth Circuit does not appear to have expressly adopted Lusardi, although the circuit has acknowledged that district courts use the bifurcated certification framework, citing Holder v. A&L Home Care & Training Ctr., LLC, 552 F.Supp.3d 731, 741 -42 (S.D. Ohio 2021) (collecting cases). But the Fifth Circuit has expressly rejected this two-step process because on the one hand, its flexibility has led to unpredictability, w on the other hand, its rigidity distracts district courts from the ultimate issues before it. Although the court in Holder conditionally certified a collective, Judge Lioi finds that the employer has appealed that decision to the Sixth Circuit, raising the following question for review: Whether the district court and other district courts are bound to follow the lenient and Plaintiff-friendly two-step certification process detailed in Lusardi v. Xerox Corp., 118 F.R.D. 351, 352 (D. N.J. 1987) (predating Twombly and Iqbal) or if the district court 'should rigorously enforce the similarity requirement at the outset of the litigation' after a period of preliminary discovery as held in Swales v. KLLM Transport Services, L.L.C., 985 F.3d 430, 443 (5th Cir. 2021). Oral argument in Holder was conducted on Dec. 7, 2022, and an opinion will likely issue relatively soon. As a result, Soft-Lite argues in its opposition brief that the Court should defer any ruling on McCall's conditional certification motion until the Sixth Circuit resolves Holder. Judge Lioi agrees. Holder supplies the potential for a complete rejection by the circuit of the "conditional" certification process. Since the instant case is still "young," judicial economy urges a stay pending the Holder decision. Other district courts in this circuit have reached the same conclusion. Accordingly, Judge Lioi defers any ruling on McCall's motion for conditional certification and stays all proceedings until the Sixth Circuit resolves the Holder appeal. The parties are directed to monitor the Holder appeal and, upon its resolution, to promptly advise the Court of that fact in writing and shall include a joint proposal for lifting the stay and proceeding with the instant case in light of such resolution. A full-text copy of the Court's Jan. 18, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/nh95pk3x from Leagle.com. SYNGENTA CROP: Graham Sues Over Anticompetitive Loyalty Programs ---------------------------------------------------------------- NORMAN H. GRAHAM AND RYAN W. GRAHAM, on behalf of themselves and all others similarly situated, Plaintiffs v. SYNGENTA CROP PROTECTION AG, SYNGENTA CORPORATION, SYNGENTA CROP PROTECTION, LLC, and CORTEVA, INC., Defendants, Case No. 2:23-cv-00069-PLD (W.D. Pa., January 16, 2023) is a class action against the Defendants for unjust enrichment and violations of the Sherman Act, State Antitrust Laws, and State Consumer Protection Laws due to alleged unlawful marketing scheme. According to the complaint, the Defendants have implemented special "loyalty programs" in connection with key active ingredients that are incorporated into products that farmers use to protect crops from damage caused by insects, weeds, and fungi to take advantage of farmers in the United States. Under these loyalty programs, Defendants provide payments to distributors in exchange for selling certain amounts of Defendants' pesticides and restricting sales of generic pesticides made by competing manufacturers. The Defendants implement and enforce these loyalty programs to ensure that manufacturers of generic pesticides are unable to effectively distribute their products, which preserves Defendants' control of the market and prevents price competition, says the suit. As a result of Defendants' conduct, Defendants have restrained competition, maintained unlawful monopolies, and harmed America's farmers, reducing choices for these farmers and costing them millions of dollars in overcharges. The Plaintiffs purchased the products manufactured by Defendants at supracompetitive prices as a result of the said misconduct, the suit asserts. Syngenta Crop Protection AG is a provider of agricultural science and technology, in particular seeds and pesticides with its management headquarters in Basel, Switzerland.[BN] The Plaintiffs are represented by: Alfred G. Yates, Jr., Esq. Gerald L. Rutledge, Esq. LAW OFFICE OF ALFRED G. YATES, JR., P.C. 1575 McFarland Road, Suite 305 Pittsburgh, PA 15216 Telephone: (412) 391-5164 Facsimile: (412) 471-1033 E-mail: yateslaw@aol.com - and - Joseph P. Guglielmo, Esq. Erin G. Comite, Esq. Michelle Conston, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, New York 10169 Telephone: (212) 223-6444 E-mail: jguglielmo@scott-scott.com ecomite@scott-scott.com mconston@scott-scott.com TEXAS: Bid to Dismiss Shafer v. Rutledge of TDCJ Granted in Part ---------------------------------------------------------------- In the case, RICHARD SCOTT SHAFER, et al., Plaintiffs v. MICHAEL RUTLEDGE, et al., Defendants, Civil Action No. 2:21-CV-00040 (S.D. Tex.), Judge Nelva Gonzales Ramos of the U.S. District Court for the Southern District of Texas, Corpus Christi Division: a. grants in part and denies in part the Defendants' Motion to Dismiss; and b. denies the Plaintiff's Motion for Reconsideration of his request for certification of a class action. On Oct. 4, 2022, Magistrate Judge Julie K. Hampton issued an Amended Memorandum and Recommendation (M&R), recommending that the Defendants' motion to dismiss on recommitted claims be denied in part with claims proceeding against a limited group of Defendants and that Plaintiff's motion for reconsideration be denied. The Petitioner timely filed his objections on Oct. 13, 2022. The M&R recommends that the Plaintiff's First Amendment Free Exercise (Kosher Diet) and his First Amendment Free Exercise (Religious Headwear) claims proceed against current Defendant Wright (Kosher Diet) and Defendant Garcia (Religious Headwear) in their respective individual capacities, and be dismissed against other current Defendants. It further recommends that these claims proceed against Texas Department of Criminal Justice (TDCJ) Director Lumpkin (Kosher Diet) and McConnell Unit Warden Jerry Sanchez (both claims) (Defendants to be added) in their official capacities because they are in a position to provide prospective relief. Plaintiff has requested that those new Defendants be joined. However, the Plaintiff objects to the dismissal of the claims against the other Defendants, arguing that the Magistrate Judge does not appreciate the personal involvement of supervisors who find out about a constitutional violation and fail to address it after-the-fact. For that proposition, he cites Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996), a Second Circuit case. Judge Ramos holds, however, that the present Court is governed by Fifth Circuit law, which requires more than after-the-fact notice of a violation. And even Black, which relied on Wright v. Smith, 21 F.3d 496, 501-02 (2d Cir. 1994), she says, does not impose liability in the circumstances that Shafer has pled. In Wright, the Second Circuit stated that a prison official is not personally responsible simply because he is in a high position of authority or is part of the chain of command. Supervisory liability requires participation in the act or the power to halt ongoing, or prevent future, constitutional violations. For that reason, Judge Ramos holds that the Magistrate Judge properly recommended that the TDCJ Director and Unit Warden be added in order to address any ongoing violations. But supervisors are not responsible for any individual's past action in which they did not participate. Shafer argues that the problems are rampant within the McConnell Unit or the entire State. Judge Ramos holds that this invokes the need to make the claim against the Warden or TDCJ Director, not against those with lesser authority. While Shafer contends that the Director of Chaplaincy bears sole ministerial responsibility to ensure that the rights of inmates, under the First Amendment, are protected, and that position would require them to report such violations and implement corrective actions to remedy them, this statement contemplates that the matter be reported to some other official before it could be corrected. Nothing in Shafer's objection suggests that the Director of Chaplaincy has authority over the kitchen's food preparation or the commissary's product inventory. Shafer's objection to the M&R's treatment of the requirement of personal participation is overruled. His complaints will proceed only against the Defendants directly responsible for the alleged constitutional violations and those of sufficient rank to effect systemic change. Shafer objects that he has not been provided a copy of the Court's "Order Rejecting in Part, Modifying in Part, and Adopting in Part Memorandum and Recommendation." Notice of same was required to be sent to Shafer by the Clerk of Court. Upon investigation, it appears that the Clerk of Court did not provide that notice. Hence, Judge Ramos sustains the objection and orders the Clerk of Court to send to Shafer a copy of the Order. Shafer also complains that he was not given access to evidence filed under D.E. 52. Judge Ramos states that that docket entry number is for the original Memorandum and Recommendation on the Defendants' motion to dismiss. The only evidence referenced in that M&R, other than the Plaintiff's own grievances, are the summary judgment affidavits accompanying the motion to dismiss. The motion bears a certificate of service indicating that the Defendants served the motion and its attachments on the Plaintiff. So, Judge Ramos overrules Shafer's objection that he has not been copied with the Defendants' summary judgment evidence. In the event that Shafer requires additional copies, he may obtain them through the ordinary procedures of the office of the Clerk of Court. Last, the Plaintiff objects to the recommendation that his motion seeking class certification be denied. He argues that the M&R's authority is insufficient to support a denial because the case involved an immigration detainee, whereas Shafer is a United States citizen. This is a distinction without a difference in the case. Citizenship status is not a determinative fact. Shafer further argues that his own legal skills, if sufficient to represent himself, are sufficient to represent fellow inmates. Judge Ramos points out that Shafer, proceeding pro se, is not in a position to adequately represent a state-wide class of over 10,000 members (the class identified in his objections). Should it appear, as this case progresses, that a class action is appropriate, the Court will be able to reassess the denial of counsel and the denial of the class action. Based on the current posture of the case, Judge Ramos overrules the objection. Based on these reasons, Judge Ramos sustains the Plaintiff's objection regarding his right to receive a copy of the Court's Order. In all other respects, she overrules the Plaintiff's objections. Judge Ramos adopts as her own the findings and conclusions of the Magistrate Judge. Accordingly, she orders as follows: a. The Defendants' Motion to Dismiss is granted in part and denied in part as follows: i. The Plaintiff's First Amendment Free Exercise (Kosher Diet) claim is: (1) dismissed with prejudice against Rutledge, the Commissary Manager, Garcia, and Garza in their individual capacities for failure to state a claim for relief and on qualified immunity grounds; (2) dismissed against Hazelwood, Wright, the Commissary Manager, Garcia, and Garza in their official capacities for lack of standing; (3) retained against Wright in his individual capacity; (4) retained against TDCJ Director Lumpkin and McConnell Unit Warden Jerry Sanchez in their official capacities in the event that Plaintiff joins these Defendants; ii. The Plaintiff's First Amendment Free Exercise (Religious Headwear) claim is: (1) dismissed with prejudice against Rutledge, Wright, the Commissary Manager, and Garza in their individual capacities for failure to state a claim for relief and on qualified immunity grounds; (2) dismissed against Hazelwood, Wright, the Commissary Manager, Garcia, and Garza in their official capacities for lack of standing; (3) retained against Garcia in her individual capacity; and (4) retained against Warden Sanchez in his official capacity in the event the Plaintiff joins the Defendant. b. The Plaintiff's Motion for Reconsideration of his motion to certify the case as a class action is denied. A full-text copy of the Court's Jan. 17, 2023 Order is available at https://tinyurl.com/kc7pd6ve from Leagle.com. UNITED STATES: Appeals Judgment in Micu Suit to Fed. Circuit ------------------------------------------------------------ The United States filed an appeal from a judgment entered in the lawsuit entitled CHRISTINA MICU, and all others similarly situated, Plaintiff v. The United States of America, Defendant, Case No. 1:17-cv-01277-CFL, in the United States Court of Federal Claims. According to the complaint, between August 25 and August 29, 2017, Tropical Storm Harvey hit Houston bringing with it rainfall over four days. Many parts of Harris County and Fort Bend Counties received up to 50 inches of rain. The federal government only owns a portion of the land inside each reservoir, but the rest is private property upon which Plaintiffs own homes and businesses. During and after Harvey, the federal government flooded many thousands of homes and businesses within Addicks & Barker Reservoirs. The federal government does not own drainage or flowage easements on the private properties inside the reservoirs. The federal government has never offered to purchase drainage or flowage easements on the private properties inside the reservoirs, says the suit. As the reservoirs were designed to do, the federal government intentionally stored storm waters inside the reservoirs and on Plaintiffs properties for a public purpose, but without obtaining permission or ownership of the right to do so. The Plaintiffs have been deprived of their private property, without due process, because it has been "taken for a public use, without just compensation." The Plaintiffs seek compensation for the permanent taking of property and the taking of drainage or flowage easement that the federal government utilizes on their properties, the suit asserts. On October 31, 2017, the Court released an order stating that the identified cases and any subsequently filed directly or indirectly related cases were consolidated for pretrial management and assigned to Chief Judge Susan G. Braden. Judgment was entered by the court in the case on November 1, 2022. The appellate case is captioned as Micu v. United States, Case No. 23-1366, in the United States Court of Appeals for the Federal Circuit, filed on Jan. 10, 2023. The briefing schedule in the Appellate Case states that: -- Entry of Appearance was due on January 24, 2023; -- Certificate of Interest was due on January 24, 2023; -- Docketing Statement is due on February 9, 2023; and -- Appellant/Petitioner's brief is due on March 13, 2023.[BN] Defendant-Appellant UNITED STATES is represented by: William B. Lazarus, Esq. DEPARTMENT OF JUSTICE PO Box 7415 Ben Franklin Station Washington, DC 20044 Telephone: (202) 514-4168 - and - Kristine S. Tardiff, Esq. DEPARTMENT OF JUSTICE 53 Pleasant Street Concord, NH 03301 Telephone: (603) 230-2583 x283 Plaintiffs-Appellees CHRISTINA MICU, and all others similarly situated, et al., are represented by: Daniel H. Charest, Esq. BURNS CHAREST LLP 900 Jackson Street Dallas, TX 75202 Telephone: (469) 904-4550 UROLOGY OF GREATER: Bland Files Suit Over Data Breach ----------------------------------------------------- MICHAEL BLAND, individually and on behalf of all others similarly situated, Plaintiff v. UROLOGY OF GREATER ATLANTA, LLC a Georgia limited liability company, Defendant, Case No. 1:23-cv-00132-MLB (N.D. Ga., January 10, 2023) is a class action brought by the Plaintiff to secure redress against the Defendant for its alleged reckless and negligent violation of privacy rights after his personal identifying information and protected health information were collected, stored and ultimately breached by the Defendant. From August 8 to August 29, 2021, Defendant UGA had their data servers breached by unauthorized third-party hackers, who stole the highly sensitive personal and medication information -- including, inter alia, the full names, addresses, dates of birth, age, dates of service, patient account numbers, diagnoses and treatment, and medical histories -- of approximately 79,795 of its patients, including Plaintiff. According to the complaint, the Plaintiff and Class Members who have had their personal information compromised by nefarious third-party hackers, have had their privacy rights violated, have been exposed to the risk of fraud and identify theft, and have otherwise suffered damages. Further, Defendant unreasonably delayed in notifying Plaintiff and Class Members of the data breach until approximately November of 2022, despite having discovered the breach in August of 2021 -- over one year later, says the suit. Urology of Greater Atlanta, LLC is a HIPAA healthcare provider that offers a wide variety of urological service to patients throughout the state of Georgia.[BN] The Plaintiff is represented by: Sharon J. Zinns, Esq. ZINNS LAW, LLC 1800 Peachtree St. NW, Suite 370 Atlanta, GA 30309 Telephone: (404) 882-9002 E-mail: sharon@zinnslaw.com - and - Thiago M. Coelho, Esq. WILSHIRE LAW FIRM, PLC 3055 Wilshire Blvd., Fl 12 Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: thiago@wilshirelawfirm.com VALLEY HEALTH: Doe Suit Removed to D.N.J. ----------------------------------------- The case styled JANE DOE, individually and on behalf of all others similarly situated, Plaintiff v. VALLEY HEALTH SYSTEM, INC., d/b/a THE VALLEY HOSPITAL, INC., VALLEY HOME CARE, INC., VALLEY MEDICAL GROUP, Defendant, Case No. BER-L-006646-22, was removed from the Superior Court of New Jersey, Bergen County, to the United States District Court for the District of New Jersey on January 13, 2023. The Clerk of Court for the District of New Jersey assigned Case No. 2:23-cv-00185 to the proceeding. The Plaintiff's complaint purports to challenge Valley Health's routine on-line practices as various invasions of privacy, including an alleged violation of New Jersey's wiretapping act, among other claims. Valley Health System, Inc. provides healthcare services.[BN] The Defendant is represented by: Eric R. Fish, Esq. BAKER & HOSTETLER LLP 45 Rockefeller Plaza New York, NY 10111 Telephone: (212) 589-4200 Facsimile: (212) 589-4201 E-mail: efish@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 VERIZON DATA: District Court Denies Bid to Remand Kendall Suit -------------------------------------------------------------- Judge Vince Chhabria of the U.S. District Court for the Northern District of California denies motion to remand the case, ANN MARIE KENDALL, Plaintiff v. VERIZON DATA SERVICES LLC, et al., Defendants, Case No. 22-cv-05324-VC (N.D. Cal.). Judge Chhbria explains that he denies the motion to remand because the amount in controversy is more than $75,000. He says while this is a putative class action, neither side argues that CAFA's jurisdictional requirements are satisfied. The question is therefore whether there is diversity jurisdiction over Kendall's individual claims. The complaint does not give specific dollar amounts or numbers of hours, so Verizon may make "reasonable assumptions." Kendall is right that Verizon's estimate of three hours of unpaid overtime per week is too high; one hour per week is a more reasonable estimate. More importantly, Verizon's estimate assumes that Kendall was not paid anything for her overtime work. But the complaint only claims that she was not paid the correct overtime rate. Verizon's estimate of the amount in controversy for the overtime claim therefore should be reduced by eight-ninths. With this adjustment, a reasonable estimate of Kendall's claims before attorney's fees is more like $45,000. If she prevails, Kendall will be statutorily entitled to recover reasonable fees. And the case will not be far along before Kendall's fees would put the total amount over $75,000 (not counting any fees relating to class certification or class discovery). The amount in controversy is therefore sufficient to create diversity jurisdiction. A full-text copy of the Court's Jan. 17, 2023 Order is available at https://tinyurl.com/yjn89frs from Leagle.com. VRDOLYAK LAW: Bid to Dismiss Alholm Class Suit Granted in Part -------------------------------------------------------------- In the case, Daniel Alholm, individually and on behalf of those similarly situated, Plaintiff v. The Vrdolyak Law Group LLC, Defendant, Case No. 22-cv-01820 (N.D. Ill.), Judge Mary M. Rowland of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants in part and denies in part the Defendant's motion to dismiss the Plaintiff's complaint. Alholm filed the putative class action against Vrdolyak Law Group (VLG) bringing claims under the Federal Wiretap Act, 18 U.S.C. Section 2511 and related state laws, as well as claims of fraud and misappropriation of likeness under Illinois and Tennessee state law. In 2017, Alholm, a Chicago plaintiffs' attorney, was considering potential employment opportunities with at least three firms when VLG approached him. He expressed concerns to VLG's hiring partners and Steve Armbruster, another attorney at the firm, about VLG's reputation, and specifically the disbarment and imprisonment of firm founder Edward Vrdolyak Sr. The hiring partners and Armbruster assured Alholm that VLG was not involved in any improper or illegal activity. They also assured Alholm that VLG had the resources, personnel, and finances to successfully litigate Alholm's mass tort cases. Based on these reassurances, Alholm began working at the firm in May 2017. In August 2017, VLG asked Alholm to relocate to Nashville to manage its new Tennessee office. After relocating, Alholm learned that VLG lacked the resources to advertise for business, support Alholm's cases, pay credit card bills or, at times, even fund ongoing operations. He was forced to spend nearly $20,000 of his money to fund filing fees, office costs and other work-related expenses after VLG's credit cards were unavailable or declined. Subsequently, Alholm also became aware of unethical and/or illegal activities including that VLG: (a) collected contingency fees based upon Med-Pay coverage while also charging clients a "Med-Pay processing charge"; (b) steered clients to a preferred litigation lender and also collected contingency fees for securing litigation loan repayment amounts; (c) charged clients fees unrelated to the work it performed; (d) directed clients to specific physicians who provided unnecessary medical care in exchange for which the physicians donated to VLG-sponsored charity events; (e) tolerated a culture in which VLG principals made antisemitic and racist comments, including in reference to VLG employees; and, (f) allowed an agent (subsequently indicted and then pardoned) of an illegal offshore gambling ring to recruit firm employees to wager on sports through his illegal offshore gambling operation. Alholm alleges, upon information and belief, that VLG's Chicago and Nashville offices are equipped with a network of audio and video surveillance cameras, which Eddie Vrdolyak (Vrdolyak), monitored from his office. In March 2019, a VLG IT employee/consultant told the Plaintiff that all phone calls at the downtown Chicago VLG office were recorded. At the time, the Plaintiff believed the recording was an innocent mistake. In January 2020, VLG's office telecommunications software was upgraded to a new SIPCOM telephone system, which, in addition to customary business communication services, was expressly marketed for its "call recording" functionality. On Jan. 9, 2020, Alholm received a call from VLG employee, "Mr. G." Mr. G cautioned Alholm that his calls were being recorded through the new SIPCOM system. Upon learning about VLG's ongoing call recording, the Plaintiff consulted with the Illinois Attorney Registration Disciplinary Committee and Tennessee Board of Professional Responsibility, and thereafter resigned from the firm on Jan. 24, 2020. On Feb. 14, 2020, VLG sued Alholm in Cook County Circuit Court alleging breach of fiduciary duty, tortious interference, and defamation. That case is pending. On April 7, 2022, the Plaintiff filed the lawsuit seeking to represent a class of "All persons in the United States whose wire, oral or electronic communications were intercepted by Defendant VLG [Vrdolyak Law Group] from Jan. 9, 2018 through the present." The Defendant moves to dismiss the Plaintiff's complaint under Federal Rules of Civil Procedure 12(b)(6) and 9(b). It moves to dismiss the Plaintiff's state and federal wiretapping claims as untimely. It also argues that should the Plaintiff's federal wiretapping claim be dismissed, the Court should decline to exercise supplemental jurisdiction over the remaining state law claims. Judge Rowland begins with the wiretapping claims (Counts II, III, and IV), and then proceeds to the fraud claim (Count I). First, the Defendant argues that all of the Plaintiff's wiretapping claims are untimely. The parties agree that the Federal Wiretap Act claim, 18 U.S.C. Section 2511, and the Tennessee wiretapping claim, T.C.A. Section 39-13-601, each have a two-year statute of limitations. As for the claim brought under the Illinois Eavesdropping Act, 720 ILCS 5/14-6, the parties disagree about the applicable statute of limitations. In his complaint, Alholm asserts that at the time of the March 2019 conversation, he believed the recording was an innocent mistake that had been remedied. He then alleges that Jan. 9, 2020 the date upon which he learned of the illegal recording at issue in the case. Judge Rowland opines that at this stage, she cannot find that the March 2019 date is "not subject to reasonable dispute." Accepting the well-pleaded facts and drawing reasonable inferences in the Plaintiff's favor leads to the conclusion that Plaintiff learned of the alleged illegal recording on Jan. 9, 2020 and brought the action, pursuant to the tolling agreement, in a timely manner on April 7, 2022. Factual development will reveal when the Plaintiff had a reasonable opportunity to discover the violation for purposes of the Wiretap Act. The Defendant is free to raise the timeliness argument again at a later date. But as long as the Court can imagine a scenario in which the claim is timely, it is improper to dismiss it on the pleadings. Therefore, dismissal of the federal and Tennessee wiretap claims on statute of limitations grounds is not warranted at this stage. Moreover, Judge Rowland finds that the Illinois Eavesdropping Act does not contain a specified statute of limitations. Defendant argues that the limitations period in Illinois' defamation law should apply. The Defendant does not cite authority, other than the defamation statute itself, to support this. In fact in McDonald's Corp. v. Levine, 439 N.E.2d 475 (2d Dist. 1982), the Illinois appellate court found a five-year limitations period applied. Accordingly Judge Rowland finds that the Plaintiff's Illinois eavesdropping claim survives as well. Second, in alleging fraud, the Plaintiff claims (on behalf of himself individually) that the Defendant made several misrepresentations of material fact. The Plaintiff alleges that the Defendant (1) falsely represented to him that it had settled $9 billon in cases; (2) falsely represented to him that it would adequately staff, fund, and prosecute his clients' cases; and (3) falsely represented to him that it was no longer engaged in improper or illegal activity. Judge Rowland holds that it is well-settled that heightened pleading for fraud is a response to the "great harm to the reputation of a business firm or other enterprise a fraud claim can do." She finds that the Plaintiff's allegations do not meet the standard under Rule 9(b) or Illinois law. Finally, Counts V and VI are claims of misappropriation of likeness under Illinois and Tennessee law. VLG argues the Court should decline to exercise supplemental jurisdiction if it dismisses the federal wiretapping claim. Judge Rowland has not done so. Counts V and VI survive. For the stated reasons, Judge Rowland grants in part and denies in part the Defendant's Motion to Dismiss. She dismisses the Plaintiff's fraud claim. The remaining claims survive the dismissal motion. The Defendant shall answer the counts remaining by Feb. 10, 2023. A full-text copy of the Court's Jan. 17, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/5n8sbm8c from Leagle.com. WALMART INC: Adelstein Suit Removed to N.D. Ohio ------------------------------------------------ The case styled KEVIN ADELSTEIN, on behalf of himself and all others similarly situated, Plaintiff v. WALMART INC., Defendant, Case No. 22-cv-03442, was removed from the Cuyahoga County Court of Common Pleas, Ohio, to the United States District Court for the Northern District of Ohio on January 13, 2023. The Clerk of Court for the Northern District of Ohio assigned Case No. 1:23-cv-00067-BMB to the proceeding. The Plaintiff's claims center around injuries purportedly caused by Walmart for allegedly charging a higher price on certain products than advertised on its website. Walmart Inc. is an American multinational retail corporation that operates a chain of hypermarkets, discount department stores, and grocery stores in the United States.[BN] The Defendant is represented by: James Niehaus, Esq. Gregory R. Farkas, Esq. FRANTZ WARD 200 Public Square, Suite 3000 Cleveland, OH 44114 Telephone: (216) 515-1660 Facsimile: (216) 515-1650 E-mail: jniehaus@frantzward.com garkas@frantzward.com - and - Daniel M. Blouin, Esq. Frank A. Battaglia, Esq. Olga Pototskaya, Esq. WINSTON & STRAWN LLP 35 W. Wacker Drive Chicago, IL 60601 Telephone: (312) 558-5600 Facsimile: (312) 558-5700 E-mail: DBlouin@winston.com FBattaglia@winston.com OPototskaya@winston.com WAYNE COUNTY, MI: Appeals Final Judgment in Bowles Suit ------------------------------------------------------- Eric R. Sabree and County of Wayne filed an appeal from the District Court's Final Judgment and Order dated December 12, 2022 entered in the lawsuit entitled Tonya Bowles, et al., individually and on behalf of others similarly situated, Plaintiffs, v. Eric R. Sabree, in his official and personal capacity, et al., Defendants, Case No. 2:20-cv-12838, in the U.S. District Court for the Eastern District of Michigan. The action arises out of property tax foreclosures in Wayne and Oakland counties. Plaintiffs Tonya Bowles and Bruce Taylor, former real property owners, allege violations of their constitutional rights and Michigan law in connection with the tax foreclosure process. The Plaintiffs filed a putative class action Complaint on behalf of themselves and other similarly situated individuals against the following Defendants: (i) County of Wayne by its Board of Commissioners, also sometimes known as Charter County of Wayne by its Board of Commissioners; (ii) County of Oakland; (iii) Wayne Treasurer, Eric Sabree; and (iv) Oakland Treasurer, Andrew Meisner. In their pleading, the Plaintiffs do not challenge the foreclosure of their property; instead, they assert violations of their rights under the Fifth, Eighth, and Fourteenth Amendments of the United States and Michigan Constitutions and state law in connection with the tax auction sales. Specifically, they claim that the Defendants wrongfully retained the sales proceeds exceeding the taxes they owed on the properties and seek unpaid "just compensation" and other monetary damages. The Plaintiffs are suing Sabree and Meisner in their individual and official capacities. The Defendants filed motions to dismiss, which the Court granted in part and denied in part on January 14, 2022. The Court also granted class certification. On January 28, 2022, the Defendants filed a motion for reconsideration. On July 26, 2022, Defendant County of Oakland filed a joint motion for approval of notice plan and appointment of claims administrator and a joint motion for preliminary approval of settlement. Plaintiff Bruce Taylor also filed a petition for attorneys' fees. On August 11, 2022, Defendant County of Oakland filed a motion to strike. On September 6, 2022, Judge Linda V. Parker denied the Defendants' motions for reconsideration and Oakland's motion to strike, and granted Oakland's joint motion for approval of notice of plan and appointment of claims administrator, and joint motion for preliminary approval of settlement, as well as Taylor's petition for attorneys' fees. The Court said it finds no mistake in its January 14, 2022 decision that, when corrected, changes the outcome of that decision. Nor does "a need to correct a clear error or prevent manifest injustice" warrant reconsideration of the decision. The Defendants previously filed an appeal from the September 6, 2022 court orders in the lawsuit. That appellate case was captioned In re: Eric Sabree, et al., Case No. 22-0111, in the United States Court of Appeals for the Sixth Circuit. On December 12, 2022, Judge Parker entered final judgment and order of dismissal as to Oakland County. The Defendants has appealed this ruling. The appellate case is captioned as Tonya Bowles, et al. v. Eric Sabree, et al., Case No. 23-1030, in the United States Court of Appeals for the Sixth Circuit, filed on January 11, 2023.[BN] Defendants-Appellants ERIC R. SABREE, in his official and personal capacity; and WAYNE COUNTY, MI BOARD OF COMMISSIONERS, also sometimes known as Charter County of Wayne by its Board of Commissioners, are represented by: Nasseem Sara Ramin, Esq. DYKEMA GOSSETT 400 Renaissance Center, Suite 1800 Detroit, MI 48075 Telephone: (313) 568-6800 - and - Theodore W. Seitz, Esq. DYKEMA 201 Townsend Street, Suite 900 Lansing, MI 48933 Telephone: (517) 374-9100 Plaintiffs-Appellees TONYA BOWLES, et al., individually and on behalf of all others similarly situated, are represented by: Aaron D. Cox, Esq. Law Office 23820 Eureka Road Taylor, MI 48180 Telephone: (734) 287-3664 - and - Philip Lee Ellison, Esq. OUTSIDE LEGAL COUNSEL P.O. Box 107 Hemlock, MI 48626 Telephone: (989) 642-0055 - and - David J. Shea, Esq. SHEA LAW 26100 American Drive, Second Floor Southfield, MI 48034 Telephone: (248) 354-0224 - and - Mark K. Wasvary, Esq. Law Office 645 Griswold, Suite 4300 Penobscot Building Detroit, MI 48226 Telephone: (248) 649-5667 WELLS FARGO: Court Consolidates Six Discrimination Class Suits -------------------------------------------------------------- In the case, IN RE WELLS FARGO MORTGAGE DISCRIMINATION LITIGATION, Master File No. 3:22-cv-00990-JD (N.D. Cal.), Judge James Donato of the U.S. District Court for the Northern District of California enters an order consolidating the following six putative class actions: a. Williams v. Wells Fargo Bank, N.A., No. 3:22-cv-00990-JD; b. Braxton v. Wells Fargo Bank, N.A., No. 3:22-cv-01748-JD; c. Pope v. Wells Fargo Bank, N.A., No. 3:22-cv-01793-JD; d. Thomas v. Wells Fargo & Co., No. 3:22-cv-01931-JD; e. Ebo v. Wells Fargo Bank, N.A., No. 3:22-cv-02535-JD; and f. Perkins v. Wells Fargo, N.A., No. 3:22-cv-03455-JD. The Plaintiffs in six class action have sued Defendants Wells Fargo Bank, N.A., Wells Fargo & Co., and Wells Fargo Home Mortgage, Inc. (Wells Fargo) on allegations of discrimination with respect to residential mortgage and refinance practices. Each putative class action brings claims against Wells Fargo for violations of the Equal Credit Opportunity Act, 15 U.S.C. Section 1691 et seq., and the Fair Housing Act, 42 U.S.C. Section 3601 et seq., among other related federal and state law claims that vary by complaint. The first case to be filed, Williams, seeks to represent a class of Black and/or African American applicants or borrowers who applied for, received, or maintained credit from Wells Fargo related to residential real estate and who were subjected to discrimination by [Wells Fargo] due to their race. The second case, Braxton, focuses on discrimination in refinance transactions. The other cases also allege discriminatory practices against racial minorities for home loan origination and/or refinance. Wells Fargo proposed a consolidation of the cases on the grounds that they are predicated on the same basic common questions of law and fact: namely, whether the Plaintiffs can prove disparate treatment or disparate impact and if they can, whether that conduct violates federal or California law. Some Plaintiffs opposed Wells Fargo's motion to consolidate, some indicated their support for Wells Fargo's motion, and others made their own proposals for consolidation. The Court held a hearing to discuss the matter, which confirmed that consolidation would serve judicial efficiency and promote a fair resolution of the litigation. The Plaintiffs were directed to meet and confer with each other, and then with Wells Fargo, to discuss how to consolidate these cases. The Plaintiffs now jointly propose filing two complaints. The first would be "on behalf of a class of Black applicants and borrowers, including origination and refinance mortgages." The second would be "on behalf of a class of non-Black protected minorities, including both loan origination and refinance applicants." They justify this two-complaint approach by pointing to the extent of discrimination suffered by Black applicants and the bias specific to Black applicants. Wells Fargo opposes the Plaintiffs' proposal, and suggests that there be one consolidated complaint "with subclasses for the various groups as the Plaintiffs see fit to allege," as well as "consolidated discovery" and "consolidated motion practice." Judge Donato holds that the cases will be consolidated into a single action with one amended complaint. The reasons for this are straightforward. First, all of the complaints allege the same theory, namely that Wells Fargo discriminated against non-white customers with respect to residential mortgages and refinances. It may be, as the Plaintiffs suggest, that some Plaintiffs experienced more discriminatory conduct and impacts than others, but that is a difference of degree and not substance. The record indicates that the documentary evidence and witnesses will likely be the same for all Plaintiffs. Second, the legal claims are basically the same. Differences among plaintiffs in treatment and impact can be readily managed in a variety of ways at class certification and other proceedings. If it turns out that the interests between the Plaintiff groups diverge so much that "independent representation" is warranted, the matter may be raised with the Court as appropriate. Consequently, Judge Donato orders that the following cases are ordered to be consolidated into a single action as follows: 1. The order applies to these cases: 3:22-cv-00990-JD, 3:22-cv-01748-JD, 3:22-cv-01793-JD, 3:22-cv-01931-JD, 3:22-cv-02535-JD, and 3:22-cv-03455-JD. 2. Pursuant to Federal Rule of Civil Procedure 42(a), these cases are consolidated into Civil Action No. 22-990 for all pretrial proceedings before this Court. All filings and submissions from there on will be captioned: "In re Wells Fargo Mortgage Discrimination Litigation" under the 3:22-cv-00990-JD case number. The Plaintiffs will file one amended, consolidated complaint. 3. All other underlying cases will be administratively closed by the Clerk of Court. 4. If a related action is subsequently filed in or transferred to this District, it will be consolidated into this action for all pretrial purposes. A party that objects to consolidation, or to any other provision of the Order, may file an application for relief within 14 days after an order relating cases is filed. 5. The Order is entered without prejudice to the rights of any party to apply for severance of any claim or action, for good cause shown. 6. Pretrial consolidation does not mean that the actions will necessarily be consolidated for trial. It also does not have the effect of making any entity a party in any action in which he, she, or it has not been named, served, or added in accordance with the Federal Rules of Civil Procedure. 7. The docket in Civil Action No. 22-990 will constitute the master docket, and the file in that action will be the master file for every action in the consolidated action. 8. When a pleading applies to some, but not all, of the member actions, the document must list the case number for each individual action to which the document applies immediately under the master caption. 9. The parties must promptly file a motion to relate pursuant to Civil Local Rule 3-12 whenever a case that should be consolidated into the action is filed in, or transferred to, this District. 10. If there are any disputes about whether a new action should be related to the consolidated action, they must promptly be brought to the Court's attention or any objection may be deemed waived. 11. Pursuant to Federal Rule of Civil Procedure 23(g)(3), several law firms have separately requested appointment as interim lead counsel to represent the putative class of plaintiffs. Wells Fargo filed an opposition to the appointment of interim lead counsel. 12. The Court declines to appoint interim lead counsel pending further proceedings. Interim counsel is warranted for the consolidated action, but the current applications did not have an opportunity to address who that should be now that consolidation will be into a single case. The Plaintiffs may file a renewed proposal. 13. The renewed proposal should incorporate the Court's guidelines. The Court's goal is that any party seeking fees at the end of the litigation will be able to present to the Court clear and definitive records that were prepared as the fees and costs were incurred. A prolonged forensic accounting exercise or mini-trial on fees and costs is to be avoided. 14. A renewed application for appointment of interim lead counsel must be filed by Feb. 13, 2023. Wells Fargo may file a response by Feb. 20, 2023. No other party may file an opposition without the Court's prior approval. The Court will set a date for the filing of the consolidated complaint after the appointment of interim lead counsel. A full-text copy of the Court's Jan. 18, 2023 Order is available at https://tinyurl.com/ybbzezhw from Leagle.com. WESTERN AUSTRALIA: Commission Offered to Halt Suit, Lawyers Allege ------------------------------------------------------------------ Jesse Noakes at nit.com.au reports that the lawyers leading the class action on behalf of hundreds of youth detainees at Banksia Hill Detention Centre say the parties to the action had little choice but to litigate to bring about reform to the justice system. Dana and Stewart Levitt, the managing lawyer and senior counsel in the Banksia Hill class action, spoke at a public forum in Perth on at which Premier Mark McGowan was labelled dishonest by former Australian of the Year Fiona Stanley and "seriously misleading" by the former president of the Perth Children's Court. The forum was held on the same day new reports emerged of more serious disturbances at Banksia Hill, following a riot on New Year's Eve that left buildings torched. The Banksia Hill class action was launched in the Federal Court in December following testimony from hundreds of former youth detainees about inhumane conditions and mistreatment at WA's only youth detention facility. Megan Krakouer and Gerry Georgatos from the National Suicide Prevention & Trauma Recovery Project, who worked over a long period to collect the testimonies, were also present at the forum. "Even a Royal Commission (would be) just a diversion, as far as I'm concerned," said Stuart Levitt. "A Royal Commission can only make recommendations whereas a court makes orders." The managing lawyer of the class action, Dana Levitt from Levitt Robinson Solicitors, said "Unfortunately, sometimes, the only way you can hold governments to account is by litigating". Another panelist, Denis Reynolds, President of the Perth Children's Court from 2004 until 2018, said an independent inquiry was crucial. "[Banksia Hill] is functioning in a degree of secrecy that is very unhealthy," he told the forum. "We do need an independent inquiry to fully establish the truth of what's happening in that place." Earlier, Mr Reynolds and others lashed WA Premier Mark McGowan for "misleading" rhetoric about children detained at Banksia Hill. "The Premier is saying these are bad children behaving badly, ignoring all evidence that their treatment inside Banksia is causing the behaviour," the former judge said. "The issue at hand is the unlawful and inhumane treatment of children once they enter Banksia Hill and Casuarina. "It's the punitive regimes imposed on children that are unlawful. That is the issue." Dr Fiona Stanley, public health expert and patron of the Telethon Kids Institute, noted that research shows one third of children detained at Banksia have foetal alcohol spectrum disorder, while many remain untested and treated. "Nearly 90% of the kids in Banksia have developmental problems that make it very hard for them to obey orders," she said. "If you put these kids in better environments, a nurturing environment they do OK. "Not one child in Banksia at the moment has had an assessment, we found that out from a source." Dr Stanley said some of the children detained in Banksia Hill and Unit 18 at Casuarina "are not going to be OK", even in the long term. "Some of these children are going to be so damaged that they're not going to have a normal life, and they could have," she said. Dr Stanley questioned McGowan's responses to criticism of his government's handling of the facility, after the former Australian of the Year was threatened with legal action by WA Corrective Services Minister Bill Johnston over an opinion piece she penned in November 2022. "I've been called a liar by the Premier, I guess I could say the same about him," she told the audience at the forum. Stuart Levitt, who is a member of the Labor Party, said he felt the party had lost its way. "I cannot believe the way that McGowan has been permitted by his caucus and by the members of the ALP in WA to hijack the Labor Party in the same way Trump has hijacked the Republican Party, to reject and overlook the policy platforms of the Labor Party," he said. WA Greens MP Brad Pettitt criticised the WA government's "harsher and more punitive" approach after detailing for the forum his impressions of Banksia Hill during a visit. "They were no place for a child," he said. "They were graffitied, they were dirty, they were extremely run down. There is no way a child would come out from that better than they went in." In response to questions from the National Indigenous Times, the WA government denied that a Royal Commission had been offered as an inducement to drop the class action and the Premier said his focus was on delivering tangible youth justice outcomes. "My government announced more than $60 million in November for improvements at Banksia Hill," the Premier said, citing $10 million to expand mental health services and support programs, $30.9 million boost to deliver infrastructure upgrades, and almost $22 million for a staged expansion of staffing at Banksia Hill. "The new funding is on top of the additional $25.1 million allocated in the 2022-23 Budget for Banksia Hill - which included funding a new Crisis Care Unit and a new Aboriginal Services Unit," Mr McGowan said. "Alongside our $15 million investment into an on-country residential facility in the Kimberley, this brings our investment over the past 12 months into youth justice to more than $100 million." The Premier also listed investment in early intervention programs across the state. "These are complex issues and there are no overnight fixes, but we're getting on with tackling the problem - rather than just talking about it."[GN] WESTERN EXPRESS: Hendricks Labor Suit Removed to C.D. Cal. ---------------------------------------------------------- The case styled JEFFREY HENDRICKS and WYNEISHA SHANEA COLEMAN, individually and on behalf of all others similarly situated, Plaintiff v. WESTERN EXPRESS, INC. dba WESTERN EXPRESS TRANSPORT OF CALIFORNIA, INC.; and DOES 1- 50, inclusive, Defendants, Case No. CIVSB2219950, was removed from the Superior Court for the State of California, County of San Bernardino to the United States District Court for the Central District of California on January 13, 2023. The Clerk of Court for the Central District of California assigned Case No. 5:23-cv-00069 to the proceeding. In the complaint, Plaintiffs allege, on behalf of themselves and all others similarly situated, nine total causes of action, eight of which are for various violations of the California Labor Code and one for "Unfair Competition" under the California Business & Professions Code. Western Express, Inc. is an asset-based truckload carrier.[BN] The Defendants are represented by: Richard D. Marca, Esq. Christopher S. Milligan, Esq. Alisha Maline, Esq. VARNER & BRANDT LLP 3750 University Ave., Ste. 610 Riverside, CA 92501 Telephone: (951) 274-7777 Facsimile: (951) 274-7770 E-mail: Richard.Marca@varnerbrandt.com Chris.Milligan@varnerbrandt.com Alisha.Maline@varnerbrandt.com WEXFORD HEALTH: Court Denies Bids to Dismiss Blossom Class Suit --------------------------------------------------------------- In the case, TAURUS BLOSSOM, individually and for others similarly situated, Plaintiff v. WEXFORD HEALTH SOURCES, INC., and DR. VIPIN SHAH, Defendants, Case No. 22-cv-361-NJR (S.D. Ill.), Judge Nancy J. Rosenstengel of the U.S. District Court for the Southern District of Illinois denies the Defendants' motions to dismiss. The matter is before the Court on a motion to dismiss or to strike or, alternatively, for more definite statement filed by Wexford. Dr. Vipin Shah filed a motion to join Wexford's motion to dismiss. Blossom filed responses to both motions. Wexford and Dr. Shah seek to dismiss the class action claim in the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Alternatively, they argue that the class action allegations should be stricken pursuant to Federal Rule of Civil Procedure 12(f). Although the Defendants cite to Federal Rule of Civil Procedure 12(b) and 12(f) to dismiss Blossom's class claims, Judge Rosenstengel finds that the Defendants' motions fail under those standards. She explains that Rule 12(b)(6) is to decide the adequacy of the complaint. In order to survive a Rule 12(b)(6) motion to dismiss, the complaint must allege enough factual information to state a claim to relief that is plausible on its face and raise a right to relief above the speculative level. Blossom's Complaint alleges that Wexford had a policy of refusing to prescribe Tramadol even when it met the standard of care. This refusal amounted to deliberate indifference and caused Blossom and "others similarly situated" harm. Although Blossom does not define the "others similarly situated" in his Complaint, Rule 8 only requires that the complaint contain a short and plain statement regarding the Court's jurisdiction, "a short and plain statement of the claim showing that the pleader is entitled to relief," and a demand for relief. Class definitions are not on that list." Judge Rosenstengel holds that Blossom's Complaint adequately sets forth a claim for deliberate indifference; thus, a motion to dismiss pursuant to Rule 12(b) is inappropriate at this time. Similarly, she finds a motion to strike under Rule 12(f) is also inappropriate. Instead, whether a class action may proceed is subject to Federal Rule of Civil Procedure 23. Simply put, Judge Rosenstengel finds it premature to determine the issue of class certification at this stage. Although the Complaint does not set forth any further information about a proposed class, discovery has not yet begun. Discovery into the allegations will be helpful in determining whether Blossom can set forth an adequate class definition. Without some discovery on the matter, Judge Rosenstengel is hesitant to find that a class action is inappropriate. She likewise cannot find at this time that any proposed class would be duplicative of a class proceeding in Lippert v. Baldwin, Case No. 10-cv-04063 (N.D. Ill.). Accordingly, Judge Rosenstengel denies the Defendants' motions to dismiss. She directs the parties to meet and confer and prepare a joint discovery schedule. A scheduling conference will be set by separate notice. A full-text copy of the Court's Jan. 17, 2023 Memorandum & Order is available at https://tinyurl.com/zpzb567j from Leagle.com. Y-MABS THERAPEUTICS: Bids for Lead Plaintiff Naming Due March 20 ---------------------------------------------------------------- The law firm of Robbins Geller Rudman & Dowd LLP announces that purchasers of Y-mAbs Therapeutics, Inc. ( YMAB) common stock on the open market, or pursuant to Registration Statements filed with the U.S. Securities and Exchange Commission ("SEC"), between October 6, 2020 and October 28, 2022, both dates inclusive (the "Class Period") have until March 20, 2023 to seek appointment as lead plaintiff. Captioned Corwin v. Y-mAbs Therapeutics, Inc., No. 23-cv-00431 (S.D.N.Y.), the Y-mAbs class action lawsuit charges Y-mAbs and certain of its top executives with violations of the Securities Exchange Act of 1934. If you suffered substantial losses and wish to serve as lead plaintiff of the Y-mAbs class action lawsuit, please provide your information here: https://www.rgrdlaw.com/cases-y-mabs-therapeutics-inc-class-action-lawsuit-ymab.html You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. CASE ALLEGATIONS: Y-mAbs is a biopharmaceutical company focused on the development and commercialization of novel, antibody-based therapeutic products for the treatment of cancer. Specifically, Y-mAbs is developing Omburtamab, which is being studied for the treatment of neuroblastoma in the central nervous system or leptomeninges of pediatric patients. The Y-mAbs class action lawsuit alleges that, throughout the Class Period, defendants made false and/or misleading statements and/or failed to disclose that: (i) Y-mAbs misrepresented the U.S. Food and Drug Administration's ("FDA") willingness to approve Omburtamab for marketing based on the existing clinical trials; (ii) Y-mAbs misrepresented that progress was being made that would align with the FDA's requirements to demonstrate substantial evidence of effectiveness, sufficient for approval of Omburtamab, through adequate and well-controlled studies; and (iii) the FDA had repeatedly advised Y-mAbs that it was unlikely to grant approval for the marketing of Omburtamab. On October 26, 2022, the FDA published its briefing documents for an October 28, 2022 Advisory Committee ("AdCom") Meeting, which identified key issues with Y-mAbs' Omburtamab application. On this news, Y-mAbs' stock price declined by more than 27%. Then, on October 28, 2022, Y-mAbs revealed to investors that the AdCom had voted 16 to 0 to deny the application and that Y-mAbs had not provided sufficient evidence to conclude that Omburtamab improved overall survival. On this news, Y-mAbs' stock price declined nearly 60%, further damaging investors. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Y-mAbs common stock on the open market, or pursuant to Registration Statements filed with the SEC, during the Class Period to seek appointment as lead plaintiff in the Y-mAbs class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the Y-mAbs class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the Y-mAbs class action lawsuit. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff of the Y-mAbs class action lawsuit.[GN] Y-MABS THERAPEUTICS: Corwin Sues Over Share Price Drop ------------------------------------------------------ ROBERT CORWIN, on behalf of himself and all others similarly situated, Plaintiff v. Y-mAbs THERAPEUTICS, INC., THOMAS GAD, CLAUS JUAN MOLLER SAN PEDRO, and VIGNESH RAJAH, Defendants, Case No. 1:23-cv-00431 (S.D.N.Y., January 18, 2023) is a class action brought by the Plaintiff, on behalf of all persons or entities who purchased shares of Y-mAbs common stock on the open market, or pursuant to Registration Statements filed with the Securities and Exchange Commission, during the period October 6, 2020 through October 28, 2022 ("class period"), inclusive, and suffered damages caused by Defendants' violations of the federal securities laws. Throughout the Class Period, beginning on October 6, 2020, Y-mAbs misrepresented to investors that, pursuant to a series of meetings and other communications between Y-mAbs and the Food and Drug Administration, progress was being made that would align with the FDA's requirement to demonstrate substantial evidence of effectiveness, sufficient for approval of omburtamab, through adequate and well-controlled studies. Specifically, the Food and Drug Administration had repeatedly advised the Defendants that it was unlikely to grant approval for the marketing of omburtamab, a murine monoclonal antibody that targets B7-H3, an immune checkpoint molecule that is widely expressed in tumor cells of several cancer types, based on a comparison between clinical trials conducted because of substantial differences in the patient populations, and the absence of tumor response data, and that Study 101 was neither sufficiently advanced nor indicative of efficacy to justify approval. The statements alleged to be false and misleading were not forward-looking statements because they misrepresented existing facts based on communications with the FDA with respect to the approval, says the suit. The true facts were first disclosed to investors shortly after the opening of trading on October 26, 2022 when the FDA published its Briefing Document for an October 28, 2022 Advisory Committee Meeting, and again, on October 28, 2022 when the AdCom voted 16-0 against recommending approval of omburtamab. The disclosure of the true facts caused Y-mAbs common shares to plummet $11.56 a share from the closing price on October 25, 2022 of $15.17 a share to close on October 31, 2022 at $3.61 a share, the suit alleges. Y-mAbs Therapeutics, Inc. is a clinical-stage biopharmaceutical company focused on developing antibody therapeutics and medicines for the treatment of cancer patients of all ages.[BN] The Plaintiff is represented by: Robert C. Finkel, Esq. Joshua W. Ruthizer, Esq. Leanna Loginov, Esq. WOLF POPPER LLP 845 Third Avenue, 12th Floor New York, NY 10022 Telephone: (212) 759-4600 E-mail: rfinkel@wolfpopper.com jruthizer@wolfpopper.com lloginov@wolfpopper.com [*] Submission of $56-M Dementia Drug Settlement Claims Set Feb. 3 ------------------------------------------------------------------ newsbreak.com reports that a $56 Million Class Action Settlement has been settled with pharmaceutical companies that manufacture and market certain Alzheimer's disease medications. The class action lawsuit alleged that pharma companies including Actavis, Merz, Teva, Dr. Reddy's, and Wockhardt conspired intentionally to keep generic versions of Alzheimer's medication off the shelves in order to drive up the cost of Namenda Alzheimer's medication. In the United States, the generic version of Namenda Alzheimer's disease drug is also known as Memantine. The class action lawsuit stipulates that the pharmaceutical companies colluded together in order to achieve more profits through illegal price fixing schemas and the forming of a monopoly through closed-door agreements that violate certain consumer protection laws. Dementia and Alzheimer's Disease Dementia, Alzheimer's, and Lewy Body Dementia are brain diseases that affects the cognitive and everyday function of individuals, affecting an array of functions such as memory, reasoning, logic, balance, path-finding, and more. Dementia and Alzheimer's affects caregivers significantly as well as the individual with the disease. For more information on Alzheimer's and Dementia treatments and how to cope with your Loved One being diagnosed with the disease please reach out here for more information. How Do I Qualify? You are a Class Member of the Alzheimer's Namenda medication class action settlement if you purchased or paid for certain Alzheimer's drugs. The dates the purchase or reimbursement must have been are anytime from April 14, 2010 through December 31, 2017. The following products or Alzheimer's medications qualify for payout from the Namenda class action lawsuit: * Namenda IR * Namenda XR * "AB-Rated" Generic versions AB-Rated generic drug version refer to medicines that have been licensed legally in the United States, and have been authorized for sale, containing the same active ingredient as the brand name version of the drug. In this case, "Namenda" is the brand name of the drug. More details about which pharmaceutical companies released generic or brand name versions of the drugs are included below. Third party payors (or TPP's) such as insurance companies may also qualify to be paid out from the more-than $56 Million Namenda Alzheimer's Class Action if they fit the above requirements. Who Are the Alzheimer's Drug Company Defendants in the Class Action? It should be noted that there has been no claim made that Namenda is unsafe or ineffective. The class action lawsuit alleges that these companies violated anti-trust laws that aimed to increase prices artificially for consumers, patients, and insurers, by blocking the release of generic competitors who could drive down brand name (Namenda) drug prices. The following pharmaceutical companies have agreed to settle the $56 Million Settlement: Brand Name Drug Defendants * Actavis, * Forest Laboratories (subsidiary of Actavis), * Merz Pharmaceuticals, Generic (Memantine) Drug Defendants * Barr Pharmaceuticals, Inc., * Cobalt Laboratories, Inc., * Teva Pharmaceutical Industries, Ltd., * Dr. Reddy's Laboratories, Inc. & Ltd., * Wockhardt Limited and Wockhardt USA LLC, * Amneal Pharmaceuticals LLC, * Sun Pharmaceutical Industries Ltd., * Upsher-Smith Laboratories, LLC, * Wockhardt What Can I Get? The Alzheimer's and Dementia Class Action provides for over $56 Million in settlement funds. The Brand defendants (Namenda) will pay $54.4 Million. The Generic (Memantine) defendants will pay $2,038,000 towards the settlement payouts. Part of the funds will go towards lawyer fees, court fees, and administrative expenses. This amount is generally not more than 30% of the total settlement amount agreed upon in the class action. To get paid, you must belong to one of the two class action groups that were affected according to the settlement terms: Generic Class Action Members Anyone who purchased or paid indirectly for part or the whole purchase price of: * 5 mg Namenda IR tablets * 10 mg Namenda IR tablets * Generic "AB Rated" equivalent tablets * Namenda XR Third Party Payors Those who indirectly purchased or paid for part or the whole purchase price of the same tablets as above in the following U.S. states: * Alabama * Arizona * California * District of Columbia * Florida * Hawaii * Idaho * Illinois * Iowa * Kansas * Maine * Massachussettes * Michigan * Minnesota * Mississippi * Nebraska * Nevada * New Hampshire * New Mexico * New York * North Carolina * North Dakota * Oregon * Rhode Island (purchases after July 15, 2013) * South Dakota * Tennessee * Utah * Vermont * West Virginia * Wisconsin (purchases between June 1, 2012 and December 31, 2017) What If I Don't Qualify for the Alzheimer's Class Action Lawsuit? Look for other Class Action Settlements you do qualify for by getting notified of new ones as they are reported here. Filing Class Action Lawsuit Claims Please note that your claim form will be rejected if you submit a a settlement claim for payout with any fraudulent information. By providing this information and your sworn statement of its veracity, you agree to do so under the penalty of perjury. You would also be harming others that actually qualify for the class action settlement. If you are not sure whether or not you qualify for this class action settlement, visit the class action administrator's website below. OpenClassActions.com is only providing information and is not a class action administrator. How Do I File a Claim? To be eligible to receive a payment from the $56 Million Class Action Settlement, you must complete and submit a timely Claim Form by February 03, 2023 by following the submit claim from button located at the bottom of the page. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2023. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***