/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230330.mbx C L A S S A C T I O N R E P O R T E R Thursday, March 30, 2023, Vol. 25, No. 65 Headlines AMAZING AIR + HEAT: Faces Reid Suit Over Unpaid Overtime Wages AMAZON.COM INC: Bid to Stay Stelman Suit Pending Appeal Denied AMAZON.COM SERVICES: Judgment on Pleadings in Buero Suit Affirmed APPLE INC: Must Provide AEO Information to Plaintiffs' Experts APPLE INC: Parties Seek to Defer Discovery Disputes in Barrett BOYNE USA: Prohibited Temporarily from Terminating RMAs BP EXPLORATION: Bowden Oil Spill Claims Dismissed BP EXPLORATION: Jones Oil Spill Claims Tossed BP EXPLORATION: Kolian and Belton Lawsuits Dismissed BP EXPLORATION: Scotts' Oil Spill Claims Dismissed BP EXPLORATION: Wins Summary Judgment in Jones Lawsuit BWW SOUTHERN: Tidwell Sues Over Wage-and-Hour Violations in Florida CALIFORNIA: Cole-Kelly Appeals Suit Dismissal to 9th Circuit CAREFUSION RESOURCES: Discovery Completion Due Nov. 1 CHAMPION PETFOODS: Zarinebaf Bid for Class Certification Denied CHEROKEE GIVES: Court Stays Philadelphia Suit for 60 Days More CLAYSTILL INC: Reid Files ADA Suit in S.D. New York COLONIAL PENN: Class Cert Hearing Continued to June 9 CORRECTCARE-INTEGRATED: Oliver Files Suit in N.D. Georgia CRUGER MANAGEMENT: Faces Ulloa Suit Over Laborers' Unpaid Wages CUYAHOGA COUNTY, OH: Loses Bid to Disqualify Judge in James Suit DC HEALTH BENEFIT: Meranda Files Suit in D. Columbia DELPHI GLASS: Jones Files ADA Suit in S.D. New York DIGNITY HEALTH: Clark Files Suit in Cal. Super. Ct. DIRECTOR SMITH: Martin Seeks to Certify Rule 23 Class DISTRICT OF COLUMBIA: Dismissal of Maldonado Class Suit Reversed DWD PIZZA: Faces Gonzalez Suit Over Flawed Reimbursement Policy EIDP INC: Faces Class Suit Over Drinking Water Contamination ELECTROLUX HOME: Bid to Certify Class in Reichardt Suit Denied ELECTROLUX HOME: Reichardt Loses Bid for Class Certification EOG RESOURCES: Class of Water Consultants Certified in Brown Suit ETHOS YOGA: Winegard Files ADA Suit in E.D. New York EXPEDIA GROUP: Faces Suit Over Consumer Laws Violation EXPEDIA GROUP: Settlement in Principle Reached in Israeli Suit FAMILY STYLE INC: Faces Harris Suit Over Labor Code Violations FCTI INC: Bid for Summary Judgment in Polvay Class Suit Denied FENCEWORKS INC: Mariscal Files Suit in Cal. Super. Ct. FERGUSON ENTERPRISES: Fails to Pay Timely Wages, Strang Suit Says FINN SPECIALTIES: Jones Files ADA Suit in S.D. New York FLINT, MI: Counsel Fee Award in Water Crisis Litig. Affirmed FORD MOTOR: Scott Suit Transferred to E.D. Michigan FRAICHE CATERING: Gutierrez Files Suit in Cal. Super. Ct. GARUDA LABS INC: Brand Files Suit in Cal. Super. Ct. GENERAL ELECTRIC: Faces Securities Suit in New York Court GENERAL ELECTRIC: Faces Suit Over Retirement Savings Plan GLOTRITION LLC: Slade Files ADA Suit in S.D. New York GREENE COUNTY BANCORP: Faces Broockmann Suit in New York Court GREG W. BECKER: Siddiqui Sues Over Exchange Act Violation GREGORY L. HOPKINS: Court Narrows Weitlauf Claims GUIDANT GLOBAL: Owens Files Suit in Cal. Super. Ct. H&H DERM LLC: Hernandez Files ADA Suit in S.D. New York HEY HONEY INC: Slade Files ADA Suit in S.D. New York HMS HOST: Stone Sues Over Tipped Employees' Unpaid Minimum Wages HORIZON MANAGEMENT: Underpays Home Healthcare Workers, Limar Says HUGH & GRACE: Slade Files ADA Suit in S.D. New York HYPNO COMICS & GAMES: Sookul Files ADA Suit in S.D. New York ICOT HOLDINGS: Bid for Class Certification in Bank TCPA Suit Denied IMMUNOCOLOGIE LLC: Slade Files ADA Suit in S.D. New York INDEPENDENT LIVING: Fails to Safeguard Patients' Info, Riggins Says INDEPENDENT LIVING: Geleng Files Suit in S.D. Florida INDEPENDENT LIVING: Jensen Files Suit in S.D. Florida INTUITIVE SURGICAL: Faces Three Antitrust Cases in California Court ISOLATOR FITNESS: Campbell Files ADA Suit in S.D. New York KONINKLIJKE PHILIPS: Lowe Suit Removed to D. South Carolina LATHER INC: Lawal Files ADA Suit in S.D. New York LINDT & SPRUNGLI: Tettenhorst Sues Over Deceptive Labeling LOTTERY.COM INC: Million & Hoffman Securities Suits Consolidated LOUISVILLE METRO: $1.5MM Accord in Lott Suit Has Interim OK M.A. SILVA: Plaintiffs Loses Bid to File Docs Under Seal MADEWELL INC: Faces Miller Suit Over Incorrect Sales Tax Rates MARRIOTT INT'L: $153K in Attorneys' Fees & Costs Awarded in Ramirez MARTEN TRANSPORT: Court Narrows Linman's Claims in Data Theft Suit MAXAR TECHNOLOGIES: Respler Sues Over Misleading Proxy Statement MEADOWBROOK FINANCIAL: Court Refuses to Dismiss Jackson TCPA Suit MENARD INC: Request for Fees in Rebate Suit Denied MICHAEL CARTWRIGHT: IPRS Seeks Reconsideration of Feb. 24 Order MICHIGAN: No Class Status for Inmates' COVID-19 Suit MOLSON COORS: Class Settlement in Marek Suit Wins Prelim. Approval MOM'S ORGANIC: Fails to Timely Provide COBRA Notice, Wilson Alleges MOM’S ORGANIC: Wilson Sues Over Deprived Insurance Benefits MOORE'S SEWING: Cromitie Files ADA Suit in S.D. New York MOVE INC: Must Defend Against Faucett's Robocall Suit NATIONAL COLLEGIATE: Appeals Browne Suit Remand Order to 3rd Cir. NATIONWIDE MUTUAL: Sweeney Class Suit May Proceed to Discovery NEW CREDIT AMERICA: Albertson Suit Removed to D. New Jersey NEWREZ LLC: E.D. Michigan Narrows Claims in Apodaca Class Suit NISSAN NA: Must Defend Against Bereda's Brake System Suit O'GARA COACH: Denial of Motion to Compel Arbitration Affirmed ONE SOUL LLC: Tabai Suit Removed to S.D. Florida OREGON: Court Tosses Zambrano Bid for Class Certification PAYPAL HOLDINGS: Faces Kang Securities Suit Over Bank Transactions PENNSYLVANIA: Bid for Summary Judgment in Alford v. Baylor Denied PENSKE TRUCK: Conditional Status of Collective FLSA Class Sought PERK INDUSTRIES: Keegan Sues Over Sale of Adulterated Supplements PHILADELPHIA, PA: Runner Gets Another Stab at Class Status Bid PLUSHCARE INC: Settlement With Robbins Gets Preliminary Approval PORTFOLIO RECOVERY: Klimovich FDCPA Suit Removed to D. New Jersey PROGRESSIVE DIRECT: Elamin Files Suit in D. Idaho PROGRESSIVE DIRECT: Partial Bid to Toss Martorana Suit Partly OK'd PUP CULTURE: Vilella Sues Over Unpaid Overtime Compensations PYRAMID OPERATING: Accord with IHOP Asst Managers OK'd QUALITY COMIX: Sookul Files ADA Suit in S.D. New York RAC DEALERSHIP: Levine Sues Over Mass Layoff Without Proper Notice RAINBOW SYMPHONY: Cromitie Files ADA Suit in S.D. New York REPUBLIC SERVICES: District Court Narrows Claims in Buffalo Suit REVOLUTION PREP: Fails to Pay Telephone Salespeoples' OT Wages RIVERVIEW SUNSHINE: Faces Remus Suit Over Unlawful Debt Collection RUGSUSA LLC: Overcharges on Products Purchased Online, Wiley Claims SANTA MONICA, CA: Class Certification Bid Cutoff Moved to Sept. 5 SASB CORPORATION: Medical Security Files Suit in D. Delaware SAVING ARIZONA PAC: Crawford Files TCPA Suit in D. Arizona SHARK EYES: Cromitie Files ADA Suit in S.D. New York SNAPDOODLE TOYS: Campbell Files ADA Suit in S.D. New York SOUTHWEST AIRLINES: Bid to Compel Arbitration in Saxon Suit Granted SUPERCELL INC: Court Trims Claims in Video Game Purchases Suit UNITED NATURAL: Faces Sills Suit Over 28.1% Stock Price Drop UNITED STATES: Althouse Appeals Suit Dismissal to 5th Cir. VIDA SHOES: Faces Ringler Class Suit Over Unsolicited Text Messages WALMART INC: Faces Rivera Suit Over Mislabeled Apple Juice Products WEGMANS FOOD: Santiful Suit Dismissed Without Leave to Replead ZOLL MEDICAL: Fails to Secure Customers' Info, Jemison Claims [^] 2023 Class Action Money & Ethics Conference - Speakers Named ********* AMAZING AIR + HEAT: Faces Reid Suit Over Unpaid Overtime Wages -------------------------------------------------------------- In the complaint, David Reid, and other similarly situated individuals, Plaintiff v. Amazing Air + Heat, Inc. and Eric See, Case No. 2:23-cv-00198-SPC-NPM (M.D. Fla., March 21, 2023), Reid alleges the Defendants' violations of the Fair Labor Standards Act and the Section 440.205 of the Florida Statutes. He claims that the defendants failed to pay overtime for hours worked in excess of 40 per week. Allegedly, the defendants also failed to keep no records of hours worked by Reid. Reid also asserts that the defendants intimidated or coerced him after he sought or attempted to seek compensation under the Workers' Compensation Law due to a work-related accident. He further notes that the defendants reduced the number of jobs assigned to him and failed to pay full commissions, which directly resulted in a reduction of his pay. Amazing Air + Heat, Inc. is a corporation duly authorized and existing under the laws of the State of Florida and conducting business in Lee County, FL. [BN] The Plaintiff is represented by: Julisse Jimenez, Esq. R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: julisse@saenzanderson.com msaenz@saenzanderson.com AMAZON.COM INC: Bid to Stay Stelman Suit Pending Appeal Denied -------------------------------------------------------------- In the case, REBECCA STELMAN, et al., Plaintiffs v. AMAZON.COM INC., et al., Defendants, Case No. C22-1632-RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, denies Amazon's Motion to Stay Remand Pending Appeal. The lawsuit is a putative class action in which the Plaintiffs allege that Defendants Amazon.com Inc. and Amazon Logistics, Inc. (together, "Amazon") violated several sections of the Washington Revised Code and Seattle Municipal Code by failing to provide rest and meal breaks, and failure to pay compensation owed including overtime and wages for missed rest and meal breaks. The case was originally filed in King County Superior Court in September of 2022. Amazon removed the case under CAFA. On Feb. 10, 2023, the Court granted the Plaintiffs' Motion to Remand finding the home state exception to CAFA applied and declined to exercise jurisdiction on that basis. On Feb. 21, 2023, Amazon appealed the Court's Order granting the Plaintiffs' Motion to Remand. Whether Amazon is entitled to a stay pending appeal depends on (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. After weighing the relevant factors, Judge Martinez concludes a stay is not warranted. Amazon has not made a strong showing of likely success on the merits, because the record sufficiently suggest that the Plaintiffs have satisfied the Ninth Circuit's requirements by a preponderance of the evidence that Amazon is a principal, fundamental, or direct defendant and that at least two-thirds of the members of the putative class are citizens of Washington. Amazon is also unlikely to suffer irreparable harm absent a stay. It will be able to pursue an appeal of the remand order -- indeed, that appeal is currently ongoing. Amazon will incur some additional costs of pursuing an appeal without a stay, but those costs are unlikely to amount to irreparable injury. Given these conclusions, Judge Martinez need not continue his inquiry into the necessity of a stay. For the foregoing reasons, Amazon's motion is denied. A full-text copy of the Court's March 10, 2023 Order is available at https://tinyurl.com/2p8frasx from Leagle.com. AMAZON.COM SERVICES: Judgment on Pleadings in Buero Suit Affirmed ----------------------------------------------------------------- In the case, LINDSEY BUERO, Individually and on behalf of all similarly situated, Plaintiff-Appellant v. AMAZON.COM SERVICES, INC., DBA Amazon Fulfillment Services, Inc., a foreign corporation; AMAZON.COM, INC., a foreign corporation, Defendants-Appellees, Case No. 20-35633 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms the district court's order granting judgment on the pleadings to the Defendants. Buero filed a class action against Defendants Amazon.com Services, Inc. and Amazon.com, Inc., alleging that the Defendants' failure to compensate employees for time spent waiting for and passing through mandatory security screening before and after work shifts and breaks violates Oregon's wage and hour laws. The district court granted judgment on the pleadings to the Defendants, and the Plaintiff timely appealed to the Ninth Circuit. Because there was no controlling Oregon precedent on that important and dispositive question of state law, the Ninth Circuit certified the issue to the Oregon Supreme Court: "Under Oregon law, is time that employees spend on the employer's premises waiting for and undergoing mandatory security screenings compensable?" The Oregon Supreme Court answered that question in the negative. It stated that the Oregon law aligns with federal law regarding what activities are compensable. Therefore, under Oregon law, as under federal law, time that employees spend on the employer's premises waiting for and undergoing mandatory security screenings before or after their work shifts is compensable only if the screenings are either (1) an integral and indispensable part of the employees' principal activities or (2) compensable as a matter of contract, custom, or practice. The Ninth Circuit opines that the Plaintiff's complaint does not allege that either of the identified exceptions applies. Accordingly, on de novo review, it now holds that the district court properly granted judgment on the pleadings to the Defendants. Although the Oregon Supreme Court's opinion did not address separately or directly the Plaintiff's meal-period claim, the Ninth Circuit opines that the logic of that opinion yields the same result. In addition to requiring security screening when employees arrive at work and leave work, the Defendants require employees to undergo security screening if they choose to leave the premises during meal periods and also choose to take belongings with them. Under Oregon law, employees must be "relieved of all duties" during meal breaks. That regulation, like the ones that the Oregon Supreme Court discussed, "aligns with" the comparable federal regulation, which requires employees on meal breaks to be "completely relieved from duty." Under both federal and state law, the test is whether an employee performed work duties during the meal period. Because the Oregon Supreme Court has squarely held that Oregon law aligns with federal law regarding what activities are compensable and because the Plaintiff fails to allege that undergoing a mandatory security screening is "an integral and indispensable part" of an employee's principal activities, the Ninth Circuit rules that her claim fails. A full-text copy of the Court's March 10, 2023 Opinion is available at https://tinyurl.com/5n7rvzmv from Leagle.com. Lisa T. Hunt -- lthunt@lthuntlaw.com -- (argued), Law Office of Lisa T. Hunt LLC, Lake Oswego, Oregon; David A. Schuck -- dschuck@wageclaim.org -- Schuck Law LLC, Vancouver, Washington; for the Plaintiff-Appellant. Michael E. Kenneally -- michael.kenneally@morganlewis.com -- (argued) and David B. Salmons -- david.salmons@morganlewis.com -- Morgan Lewis & Bockius LLP, Washington, D.C.; Richard G. Rosenblatt -- richard.rosenblatt@morganlewis.com -- Morgan Lewis & Bockius LLP, Princeton, New Jersey; Sarah J. Crooks -- SCrooks@perkinscoie.com -- Perkins Coie LLP, Portland, Oregon; for the Defendants-Appellees. APPLE INC: Must Provide AEO Information to Plaintiffs' Experts -------------------------------------------------------------- In the case captioned as CHRIS SMITH, CHERYL SMITH, KAREN SMITHSON, JASON ROUSH, COREY POMROY, FRANK ORTEGA, ALBERTO CORNEA, MICHELLE ROGERS, JOSHUA BAYS, DEBORAH CLASS and AMBER JONES, individually and on behalf of all other similarly situated individuals, Plaintiffs, v. APPLE INC., Defendant, Case No. 4:21-cv-09527-HSG (LB), (N.D. Cal.), Magistrate Judge Laurel Beeler of the U.S. District Court for the Northern District of California sets forth a process to allow Apple more clarity in relation to its Attorneys' Eyes Only information that will be provided to the Plaintiffs' experts. This is a putative class action challenging a defect in Apple watches: the Plaintiffs allege that sudden swelling of the watch batteries causes the screen to detach, shatter, or crack, exposing razor-sharp edges and leading to watch failure or user injury. The Plaintiffs want to show Apple's Attorneys' Eyes Only (AEO) documents to the Plaintiffs' experts. The Plaintiffs identified cases where their experts testified at deposition or trial, but Apple contends that the parties' protective order also requires the Plaintiffs to identify matters where the experts provided declarations or professional services, and the Plaintiffs have not done that. The Plaintiffs provided a list of all matters in the experts' firm for the past five years (a list that includes more matters than those the Plaintiffs' experts worked on), contend that they can do no more without an eclipsing file-by-file review, and contend that nothing suggests any competitive risk to Apple. The two experts are Glen Stevick, Ph.D., P.E., and Rong Yuan, Ph.D., P.E., who work for Berkeley Engineering and Research, Inc. Both signed the protective order and agreed not to use or divulge any confidential or AEO information disclosed to them under the protective order. Both experts have submitted declarations and reports in cases over the last five years, but they have no written record of cases where they have done so. Thus, to provide a list of cases where the experts provided a declaration or a report, the experts would have to manually review the 1,553 case files. At the Feb. 9, 2023, discovery hearing, the Plaintiffs' counsel said that requiring that review would result in the loss of their experts (and the substantial funds that the plaintiffs have paid them to date). Apple resists disclosure of its AEO material to the Plaintiffs' experts only on the basis that the Plaintiffs did not provide information required by the protective order -- it "has not objected to the disclosure of AEO information based on a potential competitive relationship." The Court finds that "there is a compromise short of standing on the protective order's terms when those terms are not achievable except by a per-file review that is unlikely to reveal actual information about whether the experts' prior work raises competitive concerns (Apple's asserted objective)." The Court has reviewed the list: nothing identifies a potential competitor. The Court will allow Apple the opportunity for more clarity, but on this record, will not -- effectively -- preclude the Plaintiffs from using their experts. The Court holds that "Apple is entitled under the protective order to more information to assess any competitive risk associated with providing AEO information to the Plaintiffs' experts. On the other hand, the ultimate issue is the seemingly unlikely prospect that the experts will disclose Apple's confidential information to Apple's competitors, and an unforeseen logistical difficulty in perfectly complying with the existing protective order should not necessarily force the unjust result of precluding the plaintiffs from using their experts." Thus, the Court instructs Apple to provide "within two weeks. . . any additional information -- whether that is competitor information, areas of concern (such as other watch manufacturers, batteries, or other products), or a subset of the files -- for the experts and the plaintiffs to consider. If there is inordinate burden, the Plaintiffs can raise it. But it seems likely that the experts can submit supplemental declarations to address Apple's concerns. They must do so within two weeks after Apple provides its additional information." A full-text copy of the Discovery Order dated March 19, 2023, is available at https://tinyurl.com/mryjm58h from Leagle.com. APPLE INC: Parties Seek to Defer Discovery Disputes in Barrett -------------------------------------------------------------- In the class action lawsuit captioned as CARL BARRETT, et al., v. APPLE INC., et al., Case No. 5:20-cv-04812-EJD (N.D. Cal.), the parties file joint stipulation setting forth categories of discovery disputes to be deferred until after class certification. The Parties stipulated that resolution of disputes regarding the categories of data and documents identified in paragraphs 1 through 8 set forth above shall be deferred until after a ruling on the Plaintiffs' class certification motion The Parties further stipulated that in the event a class is certified, the Parties will meet and confer regarding the production of information to a claims administrator for purposes of effectuating notice to the certified class pursuant to Federal Rule of Civil Procedure 23(c)(2). On August 2, 2022, the Court entered a Case Management Order setting February 24, 2023 as the Fact Discovery Cutoff. The Parties have engaged in over two years of discovery to date, during which they have taken the depositions of 14 witnesses and Apple has produced over 85,000 documents The Parties have worked cooperatively to resolve discovery disputes, including by holding numerous meet and confers regarding discovery issues, and they have resolved most, but not all of their discovery disputes. On February 16, 2023, the Parties appeared before the Court and jointly agreed to meet and confer with respect to categories of discovery disputes that could be deferred until after class certification. Apple is an American multinational technology company headquartered in Cupertino, California. A copy of the the Parties' motion dated March 10, 2023 is available from PacerMonitor.com at https://bit.ly/4046C36 at no extra charge.[CC] The Plaintiffs are represented by: Joseph P. Guglielmo, Esq. Alex Outwater, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP 230 Park Ave., 17th Floor New York, NY 10169 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 E-mail: jguglielmo@scott-scott.com aoutwater@scott-scott.com - and - Nyran Rose Rasche, Esq. Nickolas J. Hagman, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 135 South LaSalle Street, Suite 3210 Chicago, IL 60603 Telephone: (312) 782-4880 Facsimile: (318) 782-4485 E-mail: nrasche@caffertyclobes.com nhagman@caffertyclobes.com - and - Anthony F. Fata, Esq. KIRBY McINERNEY LLP 211 West Wacker Drive, Suite 550 Chicago, IL 60606 Telephone: (312) 767-5180 E-mail: afata@kmllp.com The Defendants are represented by: David R. Singh, Esq. Morgan D. MacBride, Esq. Amy Le, Esq. Sarah Coyne, Esq. Robert Niles-Weed, Esq. WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway, 4th Floor Redwood Shores, CA 94065-1134 Telephone: (650) 802-3000 Facsimile: (650) 802-3100 E-mail: david.singh@weil.com morgan.macbride@weil.com amy.le@weil.com sarah.coyne@weil.com robert.niles-weed@weil.com BOYNE USA: Prohibited Temporarily from Terminating RMAs -------------------------------------------------------- In the class action lawsuit captioned as LAWRENCE ANDERSON, as trustee for the LAWRENCE T. ANDERSON AND SUZANNE M. ANDERSON JOINT REVOCABLE LIVING TRUST, ROBERT AND NORA ERHART, and TJARDA CLAGETT, BOYNE USA, INC., BOYNE PROPERTIES, INC., AND SUMMIT HOTEL, LLC, Case No. 2:21-cv-00095-BMM (D. Mont.), the Hon. Judge Brian Morris entered an order: 1. granting in part the Plaintiffs' motion to maintain the Status Quo and denying in part, pursuant to Fed. R. Civ. P. 23(d); and 2. Boyne shall not terminate its Rental Management Agreements (RMAs) with the Plaintiffs for a period of 60 days from the date of the Court's February 23, 2023, Order. The Court will grant, in part, the Plaintiff's motion to maintain the status quo pursuant to Fed. R. Civ. P. 23(d). The parties' "involvement in an ongoing business relationship" presents a "heightened potential for coercion" in the context of a class action. Boyne's notification to the Plaintiffs regarding its intent to terminate the RMAs threatens to exert undue economic pressure upon the Plaintiffs and to undermine "the integrity of the class certification process." The Court will issue a temporary injunction prohibiting Boyne from terminating the RMAs with the Plaintiffs for at least 60 days from the date of the Court's February 23, 2023, Order. Boyne's communications alone prove insufficient to demonstrate coercion or intimidation of potential class members that would warrant a prior restraint on Boyne's First Amendment rights. The Court will not repeat the full factual background provided in the Court's February 22, 2022, Order denying Boyne's motion to dismiss. Boyne owns and operates Big Sky Resort, as well as three condominium-hotels at the base of Big Sky known as the Summit, Shoshone, and Village Center. The Plaintiffs own units in the Condos. The Plaintiffs initially pled their claims as a putative class. Boyne is an owner and operator of ski and golf resorts in the United States. A copy of the Court's order dated March 10, 2023 is available from PacerMonitor.com at https://bit.ly/3loqqzp at no extra charge.[CC] BP EXPLORATION: Bowden Oil Spill Claims Dismissed ------------------------------------------------- Judge Jane Triche Milazzo of the U.S. District Court for the Eastern District of Louisiana grants the Motion in Limine and Motion for Summary Judgment filed by the Defendants: BP Exploration & Production, Inc.; BP America Production Company; BP p.l.c.; Transocean Holdings, LLC; Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.; and Halliburton Energy Services, Inc., in the case captioned as William Arthur Bowden, Jr. v. BP Exploration & Production, Inc. et al., Section: "H", Civil Action No. 17-3506, (E.D. La.). This case is one among the "B3 bundle" of cases arising out of the Deepwater Horizon oil spill. This bundle comprises "claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant)." These cases were originally part of a multidistrict litigation pending in the Eastern District of Louisiana before Judge Barbier. During this MDL, Judge Barbier approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but the B3 plaintiffs either opted out of this agreement or were excluded from its class definition. Subsequently, Judge Barbier severed the B3 cases from the MDL to be reallocated among the judges of this Court.4 The above cases were reassigned to Section H. The Plaintiff William Arthur Bowden, Jr. filed a lawsuit against Defendants based on his alleged exposure to toxic chemicals following the Deepwater Horizon oil spill in the Gulf of Mexico. The Plaintiff contends that his exposure to crude oil and dispersants caused a litany of health conditions. The Plaintiff brings claims for general maritime negligence, negligence per se, and gross negligence against the Defendants. In the Motion in Limine, the Defendants argue that the Plaintiff's expert on medical causation, Dr. Jerald Cook, fails to satisfy the Fifth Circuit's requirements for an admissible general causation opinion in toxic tort cases and should therefore be excluded as unreliable. In the Motion for Summary Judgment, the Defendants argue that assuming their Motion in Limine is granted, the Plaintiff lacks expert testimony on general causation and therefore fails to present a genuine issue of material fact as to whether his injuries were caused by exposure to oil and dispersants. On the topic of general causation, the Plaintiff has put forth a report from Dr. Cook dated June 21, 2022, and entitled "Health Effects Among Deepwater Horizon Oil Spill Response and Cleanup Workers: A Cause and Effect Analysis." This report is not unique to these cases; another judge of this Court has described it as "an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs." Nine sections of the Eastern District of Louisiana, including this one, have excluded Dr. Cook's June report or its earlier versions, holding generally that Dr. Cook's opinions are unreliable and unhelpful where he fails to identify the level of exposure to a relevant chemical that can cause the conditions asserted in the plaintiffs' complaints. Indeed, in his opposition, the Plaintiff acknowledges that "about two hundred of BP's motions to exclude Dr. Cook's general causation opinions have been granted." Accordingly, the Court finds that the Plaintiff's new arguments do not alter the outcome of the Defendants' Motion in Limine. For the same reasons already articulated by Judges Africk, Ashe, Barbier, Guidry, Morgan, Vance, Vitter, and Zainey, the Court grants the Defendants' Motion in Limine. In response to Defendants' Motion, the Plaintiff has filed a motion seeking admission of Dr. Cook's report through a different mechanism -- as a sanction for spoliation. The Court points out that "the lack of quantitative data regarding the clean-up workers' exposure to a given chemical at a given level does not affect Dr. Cook's ability to opine on whether a specific chemical is 'capable generally of causing certain health issues for the general population.' Thus, his report still fails to provide evidence of general causation as is required by the Fifth Circuit for toxic tort cases. . . Dr. Cook's report is flawed in ways unrelated to BP's decision not to conduct monitoring." Accordingly, even assuming that Plaintiff could prove that Defendants spoliated evidence, the Court concludes that Dr. Cook's opinion remains unhelpful, unreliable, and inadmissible. The Plaintiff's Motion is therefore denied. Because the Plaintiff cannot prove general causation, the Court also grants the Defendants' Motion for Summary Judgment and dismisses all of Plaintiff's claims with prejudice. A full-text copy of the Order and Reasons dated March 17, 2023, is available at https://tinyurl.com/yt3pkeuc from Leagle.com. BP EXPLORATION: Jones Oil Spill Claims Tossed --------------------------------------------- Judge Jane Triche Milazzo of the U.S. District Court for the Eastern District of Louisiana grants the Motion in Limine and Motion for Summary Judgment filed by defendants BP Exploration & Production, Inc.; BP America Production Company; BP p.l.c.; Transocean Holdings, LLC; Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.; and Halliburton Energy Services, Inc., in the case captioned as Charlene Jones, v. BP Exploration & Production, Inc. et al., Section: "H", Civil Action No. 17-3312, Consol w/ No. 17-4382, No. 17-4375., 17-4384, (E.D. La.). The case is among the "B3 bundle" of cases arising out of the Deepwater Horizon oil spill. This bundle comprises "claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant)." These cases were originally part of a multidistrict litigation pending in the Eastern District of Louisiana before Judge Barbier. During this MDL, Judge Barbier approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but the B3 plaintiffs either opted out of this agreement or were excluded from its class definition. Subsequently, Judge Barbier severed the B3 cases from the MDL to be reallocated among the judges of this Court.4 The above cases were reassigned to Section H. Plaintiff Marvin Earl Jones filed a lawsuit against the Defendants based on his alleged exposure to toxic chemicals following the Deepwater Horizon oil spill in the Gulf of Mexico. The Plaintiff was allegedly involved in cleanup or recovery work after the oil spill, and contends his resulting exposure to crude oil and dispersants caused a litany of health conditions. The Plaintiff brings claims for general maritime negligence, negligence per se, and gross negligence against the Defendants. In the Motion in Limine, the Defendants argue that the Plaintiff's expert on medical causation, Dr. Jerald Cook, fails to satisfy the Fifth Circuit's requirements for an admissible general causation opinion in toxic tort cases and should therefore be excluded as unreliable. In the Motion for Summary Judgment, the Defendants argue that assuming their Motion in Limine is granted, the Plaintiff lacks expert testimony on general causation and therefore fails to present a genuine issue of material fact as to whether his injuries were caused by exposure to oil and dispersants. On the topic of general causation, the Plaintiff has put forth a report from Dr. Cook dated June 21, 2022, and entitled "Health Effects Among Deepwater Horizon Oil Spill Response and Cleanup Workers: A Cause and Effect Analysis." This report is not unique to these cases; another judge of this Court has described it as "an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs." Nine sections of the Eastern District of Louisiana, including this one, have excluded Dr. Cook's June report or its earlier versions, holding generally that Dr. Cook's opinions are unreliable and unhelpful where he fails to identify the level of exposure to a relevant chemical that can cause the conditions asserted in the plaintiffs' complaints. Indeed, in his opposition, the Plaintiff acknowledges that "about two hundred of BP's motions to exclude Dr. Cook's general causation opinions have been granted." Accordingly, the Court finds that the Plaintiff's new arguments do not alter the outcome of the Defendants' Motion in Limine. For the same reasons already articulated by Judges Africk, Ashe, Barbier, Guidry, Morgan, Vance, Vitter, and Zainey, the Court grants the Defendants' Motion in Limine. In response to Defendants' Motion, the Plaintiff has filed a motion seeking admission of Dr. Cook's report through a different mechanism -- as a sanction for spoliation. The Court points out that "the lack of quantitative data regarding the clean-up workers' exposure to a given chemical at a given level does not affect Dr. Cook's ability to opine on whether a specific chemical is 'capable generally of causing certain health issues for the general population.' Thus, his report still fails to provide evidence of general causation as is required by the Fifth Circuit for toxic tort cases. . . Dr. Cook's report is flawed in ways unrelated to BP's decision not to conduct monitoring." Accordingly, even assuming that Plaintiff could prove that Defendants spoliated evidence, the Court concludes that Dr. Cook's opinion remains unhelpful, unreliable, and inadmissible. The Plaintiff's Motion is therefore denied. Because the Plaintiff cannot prove general causation, the Court also grants the Defendants' Motion for Summary Judgment and dismisses all of Plaintiff's claims with prejudice. A full-text copy of the Order and Reasons dated March 17, 2023, is available at https://tinyurl.com/8ytjw5hx from Leagle.com. BP EXPLORATION: Kolian and Belton Lawsuits Dismissed ---------------------------------------------------- Judge Jane Triche Milazzo of the U.S. District Court for the Eastern District of Louisiana grants the Motion in Limine and Motion for Summary Judgment filed by defendants BP Exploration & Production, Inc.; BP America Production Company; BP p.l.c.; Transocean Holdings, LLC; Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.; and Halliburton Energy Services, Inc., in the case captioned as Stephan Kolian v. BP Exploration & Production, Inc. et al., SECTION: "H" Roderick Belton, v. BP Exploration & Production, Inc. et al., Section: "H", Civil Action Nos. 17-3108, 17-3480, (E.D. La.). These cases are among the "B3 bundle" of cases arising out of the Deepwater Horizon oil spill. This bundle comprises "claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant)." These cases were originally part of a multidistrict litigation pending in the Eastern District of Louisiana before Judge Barbier. During this MDL, Judge Barbier approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but the B3 plaintiffs either opted out of this agreement or were excluded from its class definition. Subsequently, Judge Barbier severed the B3 cases from the MDL to be reallocated among the judges of this Court. The above cases were reassigned to Section H. The Plaintiffs Roderick Belton and Stephen Kolian each filed lawsuits against the Defendants based on their alleged exposure to toxic chemicals following the Deepwater Horizon oil spill in the Gulf of Mexico. Each Plaintiff contends that his resulting exposure to crude oil and dispersants caused a litany of health conditions. The Plaintiffs bring claims for general maritime negligence, negligence per se, and gross negligence against Defendants. In each of the Motions in Limine, the Defendants argue that the Plaintiff's expert on medical causation, Dr. Jerald Cook, fails to satisfy the Fifth Circuit's requirements for an admissible general causation opinion in toxic tort cases and should therefore be excluded as unreliable. In each of the Motions for Summary Judgment, the Defendants argue that assuming their Motion in Limine is granted, each of the Plaintiff lacks expert testimony on general causation and therefore fails to present a genuine issue of material fact as to whether his injuries were caused by exposure to oil and dispersants. On the topic of general causation, the Plaintiff has put forth a report from Dr. Cook dated June 21, 2022, and entitled "Health Effects Among Deepwater Horizon Oil Spill Response and Cleanup Workers: A Cause and Effect Analysis." This report is not unique to these cases; another judge of this Court has described it as "an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs." Nine sections of the Eastern District of Louisiana, including this one, have excluded Dr. Cook's June report or its earlier versions, holding generally that Dr. Cook's opinions are unreliable and unhelpful where he fails to identify the level of exposure to a relevant chemical that can cause the conditions asserted in the plaintiffs' complaints. Indeed, in his opposition, the Plaintiff acknowledges that "about two hundred of BP's motions to exclude Dr. Cook's general causation opinions have been granted." Accordingly, the Court finds that the Plaintiff's new arguments do not alter the outcome of the Defendants' Motion in Limine. For the same reasons already articulated by Judges Africk, Ashe, Barbier, Guidry, Morgan, Vance, Vitter, and Zainey, the Court grants the Defendants' Motion in Limine. In response to Defendants' Motion, the Plaintiffs have filed a motion seeking admission of Dr. Cook's report through a different mechanism -- as a sanction for spoliation. The Court points out that "the lack of quantitative data regarding the clean-up workers' exposure to a given chemical at a given level does not affect Dr. Cook's ability to opine on whether a specific chemical is 'capable generally of causing certain health issues for the general population.' Thus, his report still fails to provide evidence of general causation as is required by the Fifth Circuit for toxic tort cases. . . Dr. Cook's report is flawed in ways unrelated to BP's decision not to conduct monitoring." Accordingly, even assuming that Plaintiffs could prove that Defendants spoliated evidence, the Court concludes that Dr. Cook's opinion remains unhelpful, unreliable, and inadmissible. Because the Plaintiff cannot prove general causation, the Court also grants the Defendants' Motion for Summary Judgment and dismisses all of Plaintiff's claims with prejudice. A full-text copy of the Order and Reasons dated March 17, 2023, is available at https://tinyurl.com/2p85wrjx from Leagle.com. BP EXPLORATION: Scotts' Oil Spill Claims Dismissed -------------------------------------------------- Judge Jane Triche Milazzo of the U.S. District Court for the Eastern District of Louisiana grants the Motion for Summary Judgment filed by the Defendants: BP America Production Company, BP Exploration & Production, Inc., BP p.l.c., Halliburton Energy Services, Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, Transocean Offshore Deepwater Drilling, Inc., in the case captioned as Donald Joseph Scott, v. BP Exploration & Production, Inc. et al. Section: H(1), Civil Action No. 17-4554, (E.D. La.). The case is among the "B3 bundle" of cases arising out of the Deepwater Horizon oil spill. This bundle comprises "claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant)." These cases were originally part of a multidistrict litigation pending in the Eastern District of Louisiana before Judge Barbier. During this MDL, Judge Barbier approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but the B3 plaintiffs either opted out of this agreement or were excluded from its class definition. Subsequently, Judge Barbier severed the B3 cases from the MDL to be reallocated among the judges of this Court. The above cases were reassigned to Section H. The Plaintiffs Nicole Leigh Scott and Donald Joseph Scott, individually and on behalf of minor children J.S. and M.S., and Corey Scott allege continuous exposure to harmful substances and chemicals following the Deepwater Horizon oil spill in the Gulf of Mexico. The Plaintiffs allege that exposure to crude oil and dispersants caused a litany of health conditions. Plaintiffs assert claims under the general maritime law of negligence, negligence per se, and gross negligence with respect to the spill and its cleanup. The BP Parties move for summary judgment, arguing that the Plaintiffs have failed to produce sufficient evidence to prove that exposure to oil or dispersants caused their alleged injuries. To date, the Plaintiffs have filed no opposition to BP's motion. Judge Milazzo points out that "the Plaintiffs have the burden of proving causation. B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil, or other chemicals used during the response. Under the general maritime law, a party's negligence is actionable only if it is a 'legal cause' of the Plaintiff's injuries. Legal cause is something more than 'but for' causation, and the negligence must be a 'substantial factor' in the injury." Judge Milazzo further explains that "in general, when the conclusion regarding medical causation is not one within common knowledge, expert medical testimony is required to prove causation. Here, the causal connection between exposure to oil or dispersants and the Plaintiffs' various injuries are not within the common knowledge of a layperson. In a toxic tort suit such as this one, the plaintiff must present admissible expert testimony to establish general causation as well as specific causation." The Plaintiff's deadline for expert disclosures and reports was Jan. 23, 2023. The Plaintiff neither met this deadline nor moved for its extension. Additionally, to date, the Plaintiffs have failed to oppose BP's motion or put forth any evidence of causation. Therefore, the Court concludes that the Plaintiffs cannot prove a necessary element of their claims against the Defendants, and their claims must be dismissed with prejudice. A full-text copy of the Order and Reasons dated March 17, 2023, is available at https://tinyurl.com/ynmhyv2z from Leagle.com. BP EXPLORATION: Wins Summary Judgment in Jones Lawsuit ------------------------------------------------------ Judge Jane Triche Milazzo of the U.S. District Court for the Eastern District of Louisiana grants the Motion for Summary Judgment filed by the Defendants: BP Exploration & Production, Inc.; BP America Production Company; BP p.l.c.; Transocean Holdings, LLC; Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.; and Halliburton Energy Services, Inc., in the case captioned as Charlene Jones, v. BP Exploration & Production, Inc. et al., Section: "H", Civil Action No. 17-3312, Consol w/ No. 17-4382, No. 17-4375., 17-4384, (E.D. La.). The case is among the "B3 bundle" of cases arising out of the Deepwater Horizon oil spill. This bundle comprises "claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant)." These cases were originally part of a multidistrict litigation pending in the Eastern District of Louisiana before Judge Barbier. During this MDL, Judge Barbier approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but the B3 plaintiffs either opted out of this agreement or were excluded from its class definition. Subsequently, Judge Barbier severed the B3 cases from the MDL to be reallocated among the judges of this Court.4 The above cases were reassigned to Section H. The Plaintiffs Al'Lisha Jones, Charlene Jones, and Terika Jones filed lawsuits against Defendants based on their alleged exposure to toxic chemicals following the Deepwater Horizon oil spill in the Gulf of Mexico. The Plaintiffs were allegedly involved in cleanup or recovery work after the oil spill, and contend that their resulting exposure to crude oil and dispersants caused a litany of health conditions. The Plaintiffs bring claims for general maritime negligence, negligence per se, and gross negligence against Defendants. The BP Parties move for summary judgment on the grounds that the Plaintiffs cannot prove that exposure to oil or dispersants was the legal cause of their alleged injuries. BP argues that the Plaintiffs cannot do so because they have produced no expert testimony to support their claims, and in a toxic tort case such as this, expert testimony as to causation is required. Judge Milazzo points out that "the Plaintiffs have the burden of proving causation. B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil, or other chemicals used during the response. Under the general maritime law, a party's negligence is actionable only if it is a 'legal cause' of the Plaintiff's injuries. Legal cause is something more than 'but for' causation, and the negligence must be a 'substantial factor' in the injury." Judge Milazzo further explains that "in general, when the conclusion regarding medical causation is not one within common knowledge, expert medical testimony is required to prove causation. Here, the causal connection between exposure to oil or dispersants and the Plaintiffs' various injuries are not within the common knowledge of a layperson. In a toxic tort suit such as this one, the plaintiff must present admissible expert testimony to establish general causation as well as specific causation." The Plaintiffs' deadline for expert disclosures and reports was Dec. 21, 2022. The Plaintiffs neither met this deadline nor moved for its extension. Additionally, to date, the Plaintiffs have failed to oppose the BP's motion or put forth any evidence of causation. Therefore, the Court rules that the Plaintiffs cannot prove a necessary element of their claims against the Defendants, and their claims must be dismissed. A full-text copy of the Order and Reasons dated March 17, 2023, is available at https://tinyurl.com/mtr7ycft from Leagle.com. BWW SOUTHERN: Tidwell Sues Over Wage-and-Hour Violations in Florida ------------------------------------------------------------------- ANN TIDWELL, individually and on behalf of all others similarly situated, Plaintiff v. BWW SOUTHERN MANAGEMENT, INC. d/b/a BUFFALO WILD WINGS, Defendant, Case No. 5:23-cv-00071-AW-MJF (N.D. Fla., March 20, 2023) is a class action against the Defendant for violations of the Fair Labor Standards Act, the Florida Minimum Wage Act, and Art. X, Sec. 24 of the Florida Constitution. According to the complaint, the Defendant committed federal and state minimum wage violations because it: (1) failed to provide the Plaintiff and all others similarly situated with statutory notice of taking a tip credit; (2) required the Plaintiff and all others similarly situated to perform non-tipped side duties and side work that exceeded 20 percent of all work performed in at least one workweek; (3) required the Plaintiff and all others similarly situated to perform non-tipped duties and side work in excess of 30 continuous minutes each shift; and (4) unlawfully retained the Plaintiff's and similarly situated servers' tips to cover costs associated with walk-outs, breakage and or cash register shortages for the Defendant's benefit. As a result, the Plaintiff and similarly situated servers have been denied federal and state minimum wages during various workweeks within the relevant time period, says the suit. The Plaintiff worked for the Defendant as a server for approximately 10-year period until January 22, 2023. BWW Southern Management, Inc., doing business as Buffalo Wild Wings, is a restaurant operator located in Panama City, Florida. [BN] The Plaintiff is represented by: Jordan Richards, Esq. Jake Blumstein, Esq. USA EMPLOYMENT LAWYERS-JORDAN RICHARDS, PLLC 1800 SE 10th Ave, Suite 205 Fort Lauderdale, FL 33316 Telephone: (954) 871-0050 E-mail: jordan@jordanrichardspllc.com jake@jordanrichardspllc.com CALIFORNIA: Cole-Kelly Appeals Suit Dismissal to 9th Circuit ------------------------------------------------------------ ALISON COLE-KELLY is taking an appeal from a court order dismissing her lawsuit entitled Alison Cole-Kelly, individually and on behalf of all others similarly situated, Plaintiff, v. Betty Yee, in her official capacity as California State Controller, et al., Defendants, Case No. 4:22-cv-02841-HSG, in the U.S. District Court for the Northern District of California. As previously reported in the Class Action Reporter, the Plaintiff filed a class action suit against the Defendants for violations of the Fifth and Fourteenth Amendments of the United States Constitution and of Article I, Section 19(a) of the California Constitution. During the Class Period, from January 1, 2009 to the present, the State of California, through its Controller, regularly took and used the unclaimed personal property it obtained for its own benefit, to pay its bills and financial obligations, without compensating the owners of said unclaimed personal property for the value of the State of California's use of their unclaimed personal property. Said use constituted and continues to constitute an unconstitutional taking without compensation, asserts the complaint. On Aug. 5, 2022, the Defendants moved to dismiss the case, which the Court granted through an Order entered by Judge Haywood S. Gilliam, Jr. on Mar. 13, 2023. The appellate case is captioned Alison Cole-Kelly v. Betty Yee, et al., Case No. 23-15413, in the United States Court of Appeals for the Ninth Circuit, filed on March 21, 2023. The briefing schedule in the Appellate Case states that: -- Appellant Alison Cole-Kelly Mediation Questionnaire was due on March 28, 2023; -- Appellant Alison Cole-Kelly opening brief is due on May 22, 2023; -- Appellees State of California and Betty T. Yee answering brief is due on June 22, 2023; and -- Appellant's optional reply brief is due 21 days after service of the answering brief. [BN] Plaintiff-Appellant ALISON COLE-KELLY, individually and on behalf of all others similarly situated, is represented by: Samuel Kornhauser, Esq. LAW OFFICES OF SAMUEL KORNHAUSER 155 Jackson St. San Francisco, CA 94111 Telephone: (415) 981-6281 Defendants-Appellees BETTY T. YEE, in her official capacity as California State Controller, et al., are represented by: Jay Russell, Esq. AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL 455 Golden Gate Avenue San Francisco, CA 94102 CAREFUSION RESOURCES: Discovery Completion Due Nov. 1 ----------------------------------------------------- In the class action lawsuit captioned as KAREEM COLES, an individual, on behalf of himself, and on behalf of all persons similarly situated, v. CAREFUSION RESOURCES, LLC, a Delaware Limited Liability Company; BECTON DICKINSON AND COMPANY, a New Jersey Corporation; and DOES 1-50, Inclusive, Case No. 3:22-cv-01762-BEN-KSC (S.D. Cal.), the Hon. Judge Roger T. Benitez entered an order as follows: -- Matter does not settle in connection with the June 2023 mediation. However, the Parties will informally exchange data necessary to mediate this matter. -- Formal discovery is stayed in this matter, to be lifted on July 1, 2023, if this the Defendants will produce all mediation data on May 1, 2023. -- The Parties further agree that any purported Pick-Up Stix campaign seeking general releases from the Class Members is prohibited until completion of the June 2023 mediation. -- Parties will complete all discovery relating to class certification by November 1, 2023. CareFusion is a global corporation serving the health care industry. A copy of the Court's order dated March 10, 2023 is available from PacerMonitor.com at https://bit.ly/3ln3Rep at no extra charge.[CC] CHAMPION PETFOODS: Zarinebaf Bid for Class Certification Denied --------------------------------------------------------------- Judge Virginia M. Kendall of the U.S. District Court for the Northern District of Illinois denies the motion for class certification filed by the Plaintiffs in the case captioned as AFSHIN ZARINEBAF and ZACHARY CHERNIK, individually and on behalf of a class of similarly situated individuals, Plaintiffs, v. CHAMPION PETFOODS USA INC. and CHAMPION PETFOODS LP, Defendants, Case No. 18 C 6951, (N.D. Ill.). Afshin Zarinebaf, Zachary Chernik, and Joan Meyer purchased dogfood manufactured by Champion Petfoods USA Inc. and Champion Petfoods LP. Champion advertised two brands of dogfood -- ORIJIN and ACANA -- as "biologically appropriate," "fresh," "regional," "natural," or some combination of these qualities. The Plaintiffs brought a three-count complaint against Champion for violations of the Illinois Consumer Fraud and Deceptive Practices Act, fraudulent misrepresentation, and unjust enrichment, seeking to recover the premium paid over the cost of other dogfoods. The Plaintiffs allege that Champion's advertising is deceptive because the dogfood contained heavy metals, BPA, and pentobarbital; that Champion used non-regional sources; and that non-fresh ingredients were used in the manufacturing process. The Plaintiffs now move for class certification on a single ICFA claim for 11 Champion products that contained allegedly false or misleading advertising. Judge Kendall explains, "A class action lawsuit allows a single person or small group to represent the interests of a larger group by pooling together claims. . . A class must be identifiable. To avoid vagueness class definitions generally need to identify a particular group, harmed during a particular time frame, in a particular location, in a particular way." She points to Fed.R.Civ.P. Rule 23(a) which "provides the familiar requirements that putative classes must establish for class certification. . . Courts and practitioners alike shorthand these basic prerequisites as numerosity, commonality, typicality, and adequacy of representation." Judge Kendall says, "Numerous customers purchased Champion's products during the relevant period. . . During the relevant time, from 2014 through October 2018, Champion sold thirty-seven different dogfood diets in Illinois alone. . . Each bag had unique packaging. . . They supply at least twenty-three different label pictures. . . Moreover, the products inside the bag varied not just year-to-year but also season-by-season. . . ." Judge Kendall also explains, "An ICFA claim has five elements: (1) the defendant must undertake a deceptive act or practice; (2) the defendant intended that consumers rely on the deception; (3) the deception occurred in trade or commerce; (4) damages ensued; and (5) the deception caused the damages. The Plaintiffs then will need to establish that some common deceptive practice, as understood by consumers, occurred such that a significant aspect of a case and can be resolved for all members of a class in a single adjudication." But Judge Kendall finds that the Plaintiffs cannot establish this because the Plaintiffs' proposed class certification involves too many different products, too many different product labels, too many different purchasers, and too many different package contents to effectively resolve the legal claim together." Judge Kendall further reasons that the "legal question for an ICFA claim involving one package with one label in a standard product requires a comparison between the deceptive phrases, the label's context, and contents of the bag. . . analyzing each possible combination of products, labels, and bag contents, even divided into subclasses, would be unmanageable. The jury would need to pair each unique combination with a possible calculation of damages (assuming damages can even be established). . . As such, the plaintiffs cannot avail themselves of Rule 23(b)(3)." A full-text copy of the Memorandum Opinion and Order dated March 17, 2023 is available at https://tinyurl.com/53bk3xv2 from Leagle.com. CHEROKEE GIVES: Court Stays Philadelphia Suit for 60 Days More -------------------------------------------------------------- In the case, PHILADELPHIA INDEMNITY INSURANCE COMPANY, Plaintiff v. CHEROKEE GIVES BACK FOUNDATION; THOMAS F. DARDEN II; THOMAS F. DARDEN III; SLOCUM H. FOGLEMAN III a/k/a S. H. "JIM" FOGLEMAN; SAMUEL W. WHITT; MAURICE J. COLEMAN; LATOYA KING a/k/a LATOYA GODLEY and RSUI INDEMNITY COMPANY, Defendants, And PHILADELPHIA INDEMNITY INSURANCE COMPANY, Counterclaim and Third-Party Plaintiff v. STEADFAST INSURANCE COMPANY, Counterclaimant and Third-Party Defendant, Civil Action File No. 5:19-CV-445-FL (E.D.N.C.), Judge Louise W. Flanagan of the U.S. District Court for the Eastern District of North Carolina, Western Division, grants the Parties' Joint Motion to Continue Stay. Judge Flanagan finds good cause exists to continue to stay further proceedings in the case for an additional 60 days to allow the settlement approval process in the Class Action to develop to the point where the Parties' settlements of the action will become final. Hence, Judge Flanagan grants the Joint Motion and stays all deadlines and further action in the case for 60 days. A full-text copy of the Court's March 10, 2023 Order is available at https://tinyurl.com/mv7jtbtn from Leagle.com. CLAYSTILL INC: Reid Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Claystill, Inc. The case is styled as Nadreca Reid, individually and as the representative of a class of similarly situated persons v. Claystill, Inc., Case No. 1:23-cv-02326 (S.D.N.Y., March 20, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Claystill, Inc. manufactures face powder.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com COLONIAL PENN: Class Cert Hearing Continued to June 9 ----------------------------------------------------- In the class action lawsuit captioned as THURMA J. KELLEY, v. COLONIAL PENN LIFE INSURANCE COMPANY, Case No. 2:20-cv-03348-FLA-E (C.D. Cal.), the Hon. Judge Fernando L. Aenlle-Rocha entered an order granting joint stipulation to continue hearing date and briefing schedule on the plaintiff's motion for class certification. -- Deadline for the Defendant to file April 21, 2023 and serve its Opposition to the Plaintiff's Motion for Class Certification: -- Deadline for the Plaintiff to file May 19, 2023 and serve her Reply in Support of her Motion for Class Certification: -- Hearing on the Plaintiff's Motion June 9, 2023 for Class Certification: On March 8, 2023, the parties filed a Joint Stipulation to Continue Hearing Date and Briefing Schedule on the Plaintiff's Motion for Class Certification. Colonial Penn is an American life insurance company. A copy of the Court's order dated March 10, 2023 is available from PacerMonitor.com at https://bit.ly/3TsILrv at no extra charge.[CC] CORRECTCARE-INTEGRATED: Oliver Files Suit in N.D. Georgia --------------------------------------------------------- A class action lawsuit has been filed CorrectCare-Integrated Health, L.L.C. The case is styled as Anthony Oliver, Reginald Priddy, Anthony Williams, individually and on behalf of all others similarly situated v. CorrectCare-Integrated Health, L.L.C., Case No. 1:23-cv-01168-AT (S.D.N.Y., March 19, 2023). The nature of suit is stated as Other Contract for Breach of Fiduciary Duty. CorrectCare – Integrated Health (CCIH) -- https://correctcare.com/ -- is a correctional specific provider of third party administrative services.[BN] The Plaintiffs are represented by: McNeill Stokes, Esq. MCNEILL STOKES 5372 Whitehall Place SE Mabelton, GA 30126 Phone: (404) 352-2144 Email: mcstokes@bellsouth.net CRUGER MANAGEMENT: Faces Ulloa Suit Over Laborers' Unpaid Wages --------------------------------------------------------------- PEDRO ULLOA, individually and on behalf of all others similarly situated, Plaintiff v. CRUGER MANAGEMENT LLC and SCOTT J. SCHUSTER, Defendants, Case No. 1:23-cv-02120 (E.D.N.Y., March 20, 2023) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay minimum wages, failure to pay overtime wages, failure to provide notice at time of hiring, and failure to provide accurate wage statements. The Plaintiff was employed by the Defendants primarily as laborer to assist with demolition clean up and recycle in Flushing, New York from approximately 2019 until October 2022. Cruger Management LLC is a limited liability company headquartered in Flushing, New York. [BN] The Plaintiff is represented by: Lina Stillman, Esq. STILLMAN LEGAL, P.C. 42 Broadway, 12th Floor New York, NY 10004 Telephone: (212) 203-2417 CUYAHOGA COUNTY, OH: Loses Bid to Disqualify Judge in James Suit ---------------------------------------------------------------- In the class action lawsuit captioned as DEONTE JAMES, v. CUYAHOGA COUNTY, et al., Case No. 1:21-cv-01958-JPC (N.D. Ohio), the Court entered an order denying the Cuyahoga County's motion for disqualification. The Court said, "The Cuyahoga County's motion for disqualification is untimely and without merit. None of these arguments -- the Brack ruling, the Clay representation, and service on the State court bench -- taken individually provides an objective observer fully informed of the facts and relevant law reason to question the ability of the undersigned to preside impartially. Considering their cumulative effect does not change this determination." According to the complaint, Mr. James is mentally impaired and has indicated his intention to harm himself. As a result, jail officials placed Mr. James under full-time suicide precautions. The complaint raises constitutional claims of excessive force based on two events that occurred while Mr. James resided in the jail's mental health unit. First, on October 18, 2019, when Mr. James refused to undress as a precautionary safety measure, a sergeant deployed pepper spray in his face. Second, nine days later, Mr. James visited the medical dispensary to treat a laceration on his finger. Following his treatment, when Mr. James stood up from his seat, several officers restrained him. None of the Plaintiff's claims relates to the conditions of his confinement. A copy of the Court's order dated March 10, 2023 is available from PacerMonitor.com at https://bit.ly/42tRyxy at no extra charge.[CC] DC HEALTH BENEFIT: Meranda Files Suit in D. Columbia ---------------------------------------------------- A class action lawsuit has been filed against District of Columbia Health Benefit Exchange Authority, et al. The case is styled as Angelo Meranda, individually and all others similarly situated v. District of Columbia Health Benefit Exchange Authority doing business as: DC Health Link; MILA KOFMAN, in her official capacity as Executive Direct of the District of Columbia Health Benefit Exchange Authority; EXECUTIVE BOARD OF THE DISTRICT OF COLUMBIA HEALTH BENEFIT EXCHANGE AUTHORITY; DIANE C. LEWIS, in her Official Capacity as Chairperson of the Executive Board of the District of Columbia Health Benefit Exchange Authority; Case No. 1:23-cv-00737-TJK (D.D.C., March 17, 2023). The nature of suit is stated as Other P.I. for Personal Injury. District of Columbia Health Benefit Exchange Authority -- https://www.dchealthlink.com/ -- is a private-public partnership established to foster competition and transparency in the private health insurance market, enabling individuals and small businesses to compare health insurance prices and benefits and to purchase affordable, quality health insurance.[BN] The Plaintiff is represented by: David Kevin Lietz, Esq. MILBERG 5335 Wisconsin Avenue NW, Suite 440 Washington, DC 20015 Phone: (866) 252-0878 Email: dlietz@milberg.com DELPHI GLASS: Jones Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against The Delphi Glass Corporation. The case is styled as Damon Jones, on behalf of himself and all others similarly situated v. The Delphi Glass Corporation, Case No. 1:23-cv-02404 (S.D.N.Y., March 21, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Delphi Glass -- https://www.delphiglass.com/ -- is an art glass company.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com DIGNITY HEALTH: Clark Files Suit in Cal. Super. Ct. --------------------------------------------------- A class action lawsuit has been filed against Delivered USA Inc., et al. The case is styled as April Clark, on behalf of herself, all other similarly situated and typical individuals, and the general public v. Dignity Health, Does 1 through 50, inclusive, Case No. CGC23605244 (Cal. Super. Ct., San Francisco Cty., March 17, 2023). The case type is stated as "Other Non-Exempt Complaints." Dignity Health -- https://www.dignityhealth.org/ -- was a California-based not-for-profit public-benefit corporation that operates hospitals and ancillary care facilities in three states.[BN] The Plaintiff is represented by: Joshua R. Hendrickson, Esq. WATT, TIEDER, HOFFAR & FITZGERALD, LLP 333 Bush Street, Suite 1500 San Francisco, CA 94104 Phone: (415) 623-7000 DIRECTOR SMITH: Martin Seeks to Certify Rule 23 Class ----------------------------------------------------- In the class action lawsuit captioned as Robert Martin v. DRC Director Smith, et al., Case No. 1:23-cv-00496-SO (N.D. Ohio), the Plaintiff asks the Court to enter an order certifying a Rule 23 class and appointing of class counsel. A copy of the the Plaintiff's motion dated March 10, 2023 is available from PacerMonitor.com at https://bit.ly/3JRvaa3 at no extra charge.[CC] The Plaintiff appears pro se.[CC] DISTRICT OF COLUMBIA: Dismissal of Maldonado Class Suit Reversed ---------------------------------------------------------------- The U.S. Court of Appeals for the District of Columbia Circuit again reverses the district court's order dismissing the case, ELSA MALDONADO, ET AL., Appellants v. DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, Appellee, Case No. 22-7060 (D.C. App.). Medicaid-eligible individuals typically do not learn whether their prescriptions are eligible for Medicaid coverage until they attempt to fill them at a pharmacy. But when pharmacies determine that a prescription is ineligible for Medicaid coverage, they often fail to explain why the prescription was denied or how the Medicaid recipient can appeal. In 2010, the Plaintiffs, Medicaid-eligible individuals, filed the putative class action alleging that the District's "policies, procedures, and practices of failing to provide individualized written notice" when Medicaid benefits are denied "violate[s] the Due Process Clause." The district court first dismissed the case for lack of standing. The Court of Appeals reversed. The district court then dismissed for failure to state a claim. Again, the Court of Appeals reversed. On remand, the Plaintiffs sought to proceed with discovery, which the district court had stayed ever since the District filed its first motion to dismiss in 2010. Although the district court did set a discovery schedule, it soon stayed it because the District issued a memorandum to all pharmacies (the "transmittal memorandum") requiring them to explain to Medicaid recipients why a prescription is denied and how to appeal. Based on this memorandum, the district court again dismissed, this time on mootness grounds. According to the district court, the transmittal memorandum provides complete relief to all potential plaintiffs by enacting a new District-wide policy specifically designed to provide the notice to which the Plaintiffs are entitled under the Constitution. Because the policy, if "implemented correctly," would lead to the exact form of individualized notice that the Plaintiffs seek, the district court concluded that it could not provide the Plaintiffs with any further relief. The Plaintiffs again appeal, arguing that their case is not moot because, notwithstanding the transmittal memorandum, some number of Medicaid recipients are still not informed why their prescriptions are denied or how they can appeal. They also urge the Court of Appeals to reassign the case to a different district judge. The District defends the district court's decision. The Court of Appeals' review is de novo. The Court of Appeals opines that the Plaintiffs challenge the District's failure to give Medicaid recipients reasons for denying their prescriptions and an explanation of how to appeal, and uncontested evidence demonstrates that, notwithstanding the transmittal memorandum, some number of the Plaintiffs are still not receiving the information they claim they are entitled to under the Due Process Clause. Because it is not impossible for the district court to grant any effectual relief, the Court of Appeals holds that the case is not moot. Indeed, the case is no more moot than Brown v. Board of Education would have been if, in the wake of the Supreme Court's 1954 decision, the Topeka Board of Education had issued a memorandum directing its schools to desegregate and record evidence demonstrated that Black children were still attending segregated schools. For these reasons, the Court of Appeals reverses and remands. Given the case's advanced age and the Court of Appeals' repeated reversals, it expects the district court to proceed swiftly to lift the stay on discovery, and to schedule briefing on class certification and dispositive motions. It thus sees no reason to reassign the case to a different judge. A full-text copy of the Court's March 10, 2023 Opinion is available at https://tinyurl.com/2p8sfwa4 from Leagle.com. Michael L. Huang -- info@tpmlaw.com -- argued the cause for the Appellants. With him on the briefs were Martha Jane Perkins, Kathleen L. Millian, Nicholas F. Soares, and Stephanie A. Madison. Richard S. Love, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for the Appellee. With him on the brief were Karl A. Racine, Attorney General, at the time the brief was filed, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Thais-Lyn Trayer, Deputy Solicitor General. DWD PIZZA: Faces Gonzalez Suit Over Flawed Reimbursement Policy --------------------------------------------------------------- Adrian Gonzalez, individually and on behalf of similarly situated persons v. DWD Pizza Company, Inc., and Daniel W. Dain Jr, Case No. 2:23-cv-00077 (S.D. Tex., March 21, 2023) alleges Defendants' violations of the Fair Labor Standards Act. Mr. Gonzalez claims that the defendants use a flawed method to determine reimbursement rates to its delivery drivers. Allegedly, this reimbursement policy provides such an unreasonably low rate beneath any reasonable approximation of the expenses they incur that the drivers' unreimbursed expenses cause their wages to fall below the federal minimum wage during some or all workweeks. Gonzalez seeks to recover unpaid minimum wages and overtime hours owed to him and similarly situated delivery drivers employed by defendants at its pizza stores. DWD Pizza Company, Inc., operates numerous Domino's Pizza franchise stores and may be served via its registered agent, Daniel W. Dain Jr., at 2345 Pollex Avenue Corpus Christi, Texas.[BN] The Plaintiff is represented by: Katherine Serrano, Esq. FORESTER HAYNIE, PLLC 400 N. St. Paul Street Suite 700 Dallas, TX 75201 Telephone: (214) 210-2100 Facsimile: (469) 399-1070 E-mail: kserrano@foresterhaynie.com EIDP INC: Faces Class Suit Over Drinking Water Contamination ------------------------------------------------------------ The Chemours Company disclosed in its Form 10-K report for the fiscal year ended December 31, 2022, filed with the Securities and Exchange Commission on February 10, 2023, that in New York courts, its subsidiary EIDP, Inc., has been named in approximately 40 lawsuits, which are not part of the Leach class, brought by individual plaintiffs alleging negligence and other claims in the release of Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), including Perfluorooctanoic Acid (PFOA), into drinking water against current and former owners and suppliers of a manufacturing facility in Hoosick Falls, New York. Two additional lawsuits have been filed by a business seeking to recover its losses and by nearby property owners and residents in a putative class action. The lawsuit filed by the business was dismissed, but the claims by the individual business owner were allowed to proceed. In September 2022, the court certified the class action, and EID filed a petition for review of the certification, which was denied in January 2023. The Town of Petersburgh in New York also filed suit in New York state court in August 2022 alleging defendants 3M, EID, and other defendants, are responsible for PFOA contamination of its municipal drinking water supply. The complaint alleges product liability claims, negligence, and trespass. Plaintiff seeks injunctive and declaratory relief as well as compensatory and punitive damages. The Chemours Company is a leading, global provider of performance chemicals based in Delaware. ELECTROLUX HOME: Bid to Certify Class in Reichardt Suit Denied -------------------------------------------------------------- In the case, JOHN REICHARDT, et al., Plaintiffs v. ELECTROLUX HOME PRODUCTS INC., Defendant, Case No. 17-cv-0219-bhl (E.D. Wis.), Judge Brett H. Ludwig of the U.S. District Court for the Eastern District of Wisconsin denies the Plaintiffs' Motion for Class Certification. On March 8, 2012, Wisconsin residents John and Carol Reichardt purchased a model FPEF3018KFC oven range equipped with an ES1000 control board. A control board is the brain of the oven, translating consumer inputs into responsive actions, i.e., telling the oven to preheat at 375 degrees. It is typically flame-resistant and insulated. But on July 17, 2016, because of an insulation failure that occurred near the relays that control the stovetop heating coils, the Reichardt's oven spontaneously caught fire while not in use. The fire damaged windows, cabinets, walls, small appliances, perishables, and a painting, while the smoke and soot damaged the living room, bathroom, and hallways. The Reichardts filed a homeowner's insurance claim with Allstate, which paid at least $7,662.81 for repairs and the depreciated value of the oven range. The Allstate policy provided: "When we pay for any loss, an insured person's right to recover from anyone else becomes ours up to the amount we have paid. Consistent with that policy, Allstate, as the Reichardts' subrogee, filed a claim against Electrolux. The claim settled for $16,000, and the parties signed a general release discharging any and all claims or causes of action in any way arising from any and all losses and damages sustained on or about the 17th day of July 2016, to the property and/or person of John Reichardt. Pam Hart of Ohio purchased her model FEF355AWA oven range around August 2013. It came equipped with an ES300 control board. The ES300 featured relay contacts (electromechanical control devices) made of silver alloy. Certain silver alloys like silver cadmium oxide and silver tin indium are often used as relay contacts because they are not prone to melting or sticking. (ECF No. 121-3 at 11.) But the alloy used in the ES300 did melt. As a result, around February 2019, while she was baking cupcakes, Hart's oven malfunctioned and caught fire. Thinking fast, she immediately unplugged the appliance and avoided further damage. In November 2016, Adele Stukas, who resides in Chicago, Illinois, purchased a model FFGF3047LSJ oven range equipped with an ES100 control board. The ES100 has a safety mechanism that cuts power to the oven's heating element if it detects a sudden, unexplained increase in temperature or cannot determine what the temperature is. When this happens, the oven displays an "F10" error code. In November 2017, Stukas' oven caught fire while preheating. She extinguished the flames with water from her sink. Thereafter, the oven displayed the "F10" error code and refused to turn on. Approximately three months later, in February 2018, Stukas filed for bankruptcy and did not list any claims related to Electrolux in her petition. She received her discharge on May 30, 2018. The Plaintiffs -- who purchased three different models of allegedly defective oven ranges in three different states -- seek to certify six classes and subclasses of similarly situated consumers based on a mixture of eight unique state and federal claims. They define their proposed classes as follows: 1. ES1000 National Class: All consumers who, within the applicable statute of limitations period, purchased an oven range manufactured by Electrolux and installed with an ES1000 control board. 2. ES1000 Wisconsin Subclass: All Wisconsin residents who, within the applicable statute of limitations period, purchased an oven range manufactured by Electrolux and installed with an ES1000 control board. 3. ES300 National Class: All consumers who, within the applicable statute of limitations period, purchased an oven range manufactured by Electrolux and installed with an ES300 control board. 4. ES300 Ohio Subclass: All Ohio residents who, within the applicable statute of limitations period, purchased an oven range manufactured by Electrolux and installed with an ES300 control board. 5. ES100 National Class: All consumers who, within the applicable statute of limitations period, purchased an oven range manufactured by Electrolux and installed with an ES100 control board. 6. ES100 Illinois Subclass: All Illinois residents who, within the applicable statute of limitations period, purchased an oven range manufactured by Electrolux and installed with an ES100 control board. Each class or subclass includes some combination of alleged violations of (1) the Magnuson-Moss Warranty Act, (2) Strict Liability - Design Defect; (3) Strict Liability - Failure to Warn, (4) Express Warranty under Wisconsin Law, (5) Express Warranty under Ohio Law, (6) the Ohio Products Liability Act, (7) Express Warranty under Illinois Law, and (8) the Illinois Consumer Fraud and Deceptive Practices Act. Electrolux argues that none of the nationwide classes are manageable because they require application of different state laws and none of the state subclasses satisfy the elements of Rule 23(a). The Plaintiffs contend that North Carolina law will apply to all nationwide classes and all of Rule 23(a)'s requirements are met. Judge Ludwig agrees with Electrolux on both points. First, he says none of the proposed nationwide classes are manageable. Four of the five grouping of contacts factors are, at best, inconclusive and, at worst, slightly inimical to the application of North Carolina law. The proposed nationwide classes would implicate the warranty laws of all 50 states, Puerto Rico, and the District of Columbia. The same goes for the tort claims because the injuries occurred in the consumers' places of residence. Yet Plaintiffs have not even attempted to demonstrate homogeneity. And it is unlikely they could. Some states, such as Florida, require privity of contract to state a claim for breach of express warranty. Others, like Indiana, impose no such requirement. Id. Certain states mandate reliance, while others do not. Because these claims must be adjudicated under the law of so many jurisdictions, a single nationwide class is not manageable. The Plaintiffs, therefore, cannot maintain nationwide class actions against Electrolux. Second, Judge Ludwig holds that the Plaintiffs have not satisfied the requirements of Rule 23(a) with respect to the proposed state subclasses. The Plaintiffs' proposed state subclasses have Rule 23 problems of their own. The Plaintiffs have not shown that the Wisconsin and Ohio subclasses (consisting of ES1000 and ES300 purchasers in those states) are sufficiently numerous to justify class treatment. And they have likewise failed to show that they are adequate representatives with typical claims for both the Wisconsin and Illinois subclasses (consisting of ES1000 and ES100 purchasers in those states). Accordingly, the Plaintiffs cannot prove that any of their three proposed state-based subclasses is appropriate, and their motion to certify them will therefore be denied. For these reasons, Judge Ludwig concludes that none of the Plaintiffs' six proposed classes satisfy the requirements of Fed. R. Civ. P. 23. Accordingly, he denies the Plaintiffs' Motion for Class Certification. A full-text copy of the Court's March 10, 2023 Order is available at https://tinyurl.com/udscpwj9 from Leagle.com. ELECTROLUX HOME: Reichardt Loses Bid for Class Certification ------------------------------------------------------------ In the class action lawsuit captioned as JOHN REICHARDT, et al., v. ELECTROLUX HOME PRODUCTS INC, Case No. 17-cv-0219-bhl (E.D. Wis.), the Hon. Judge Brett H. Ludwig entered an order denying class certification: Reichardt contends that her prosecutorial diligence over the past 70 months eliminates any adequacy concerns. The concern, however, is not with her commitment to this lawsuit but the comparative weakness of her claims. That claim therefore belongs to her estate (and creditors). Under virtually identical circumstances, at least one other court in this circuit has held that this means Stukas "cannot be the class representative." That holding makes sense. If the named the Plaintiff lacks standing, then her interests are quite likely to diverge from those of the unnamed class members, and she risks sinking otherwise meritorious claims. Accordingly, the Court finds that Stukas is not an adequate class representative. Between 2012 and 2016, the Plaintiffs Carol Reichardt, Pam Hart, and Adele Stukas purchased oven ranges manufactured by the Defendant Electrolux Home Products, Inc. Between 2016 and 2019, each of those ranges inexplicably caught fire. Once the smoke cleared, the Plaintiffs joined to bring this putative class action. They now move to certify three classes and three subclasses of similarly situated consumers whose Electrolux-manufactured ovens also unexpectedly ignited. Electrolux opposes the motion on various grounds, some of which have merit. Accordingly, because the record confirms that the Plaintiffs' proposed classes do not satisfy the requirements of Federal Rule of Civil Procedure 23, their motion for class certification will be denied. On March 8, 2012, Wisconsin residents John and Carol Reichardt 1 purchased a model FPEF3018KFC oven range equipped with an ES1000 control board. A control board is the brain of the oven, translating consumer inputs into responsive actions, i.e., telling the oven to preheat at 375 degrees. The Plaintiffs -- who purchased three different models of allegedly defective oven ranges in three different states—seek to certify six classes and subclasses of similarly situated consumers based on a mixture of eight unique state and federal claims. They define their proposed classes as follows: 1. ES1000 National Class: "All consumers who, within the applicable statute of limitations period, purchased an oven range manufactured by Electrolux and installed with an ES1000 control board." 2. ES1000 Wisconsin Subclass: All Wisconsin residents who, within the applicable statute of limitations period, purchased an oven range manufactured by Electrolux and installed with an ES1000 control board. 3. ES300 National Class: All consumers who, within the applicable statute of limitations period, purchased an oven range manufactured by Electrolux and installed with an ES300 control board. 4. ES300 Ohio Subclass: "All Ohio residents who, within the applicable statute of limitations period, purchased an oven range manufactured by Electrolux and installed with an ES300 control board. 5. ES100 National Class: All consumers who, within the applicable statute of limitations period, purchased an oven range manufactured by Electrolux and installed with an ES100 control board. 6. ES100 Illinois Subclass: All Illinois residents who, within the applicable statute of limitations period, purchased an oven range manufactured by Electrolux and installed with an ES100 control board. Each class or subclass includes some combination of alleged violations of (1) the Magnuson-Moss Warranty Act, (2) Strict Liability -- Design Defect; (3) Strict Liability -- Failure to Warn, (4) Express Warranty under Wisconsin Law, (5) Express Warranty under Ohio Law, (6) the Ohio Products Liability Act, (7) Express Warranty under Illinois Law, and (8) the Illinois Consumer Fraud and Deceptive Practices Act. Electrolux argues that none of the nationwide classes are manageable because they require application of different state laws and none of the state subclasses satisfy the elements of Rule 23(a). Electrolux manufactures and distributes electrical appliances. A copy of the Court's order dated March 10, 2023 is available from PacerMonitor.com at https://bit.ly/3JzQZt8 at no extra charge.[CC] EOG RESOURCES: Class of Water Consultants Certified in Brown Suit ----------------------------------------------------------------- In the case, HUNTER BROWN AND RONALD ALBRITTON Individually and On Behalf of All Others Similarly Situated, Plaintiffs v. EOG RESOURCES, INC., Defendant, Case No. 22-CV-0116 KG/GBW (D.N.M.), Judge Kenneth J. Gonzales of the U.S. District Court for the District of New Mexico grants the Plaintiffs' Motion to Conditionally Certify Class. In the case, the Plaintiffs allege that EOG violated the Fair Labor Standards Act ("FLSA") and the New Mexico Minimum Wage Act ("NMMWA") by improperly classifying employees as independent contractors and failing to pay overtime compensation. The Plaintiffs now seek to turn their individual claims into a FLSA collective action on behalf of other similarly situated water consultants. EOG is an international energy company engaged in exploration and production of oil and gas, with operations in New Mexico, Texas, Pennsylvania, Oklahoma, North Dakota, Wyoming, and Colorado. In order to execute its business model of exploring, developing, and producing oil and gas wells, EOG, by its own description, contracts with various vendors and suppliers to provide the different services, personnel, and equipment required for its operations. Mr. Brown worked for EOG as a water consultant from June 2014 until March 2020. He alleges that he regularly worked well more than 40 hours per week, averaging 80 to 100 hours per week. But he alleges he was paid the same day rate for each day worked no matter how many hours he accrued in a week, in violation of the overtime pay requirement. Mr. Albritton worked for EOG as a water consultant from August 2012 until December 2021. He alleges that he worked over 40 hours per week almost every week that he worked, and typically worked 80 to 100 hours per week. He also alleges that he was paid the same day rate no matter how many hours he worked per week, without receiving additional compensation for overtime hours worked. EOG states that it contracted with Mr. Brown via a Master Services Agreement (MSA) with his corporate entity, Hunter Brown Consulting, and thus he was an independent contractor, not an employee. It similarly states that rather than employ Mr. Albritton, it contracted with his personal corporate entity, Ronald Albritton Consulting LLC. Id. Both Mr. Brown and Mr. Albritton argue they were improperly classified as independent contractors because they worked full-time for EOG; they worked so many hours they were prevented from accepting work elsewhere; their work was controlled and directed by EOG, including hours worked and rate of pay; they followed EOG policies and procedures; they could not create or modify their job duties, nor were they empowered to exercise independent judgment or discretion and were required to follow directives from superiors; their work required little skill or education and was often learned via on-the-job training; EOG provided most of the equipment required to complete their job duties; and they were not permitted to sub-contract or hire employees if they needed help and instead were required to defer to EOG to hire more water consultants. The Plaintiffs also allege that the work conditions they describe apply to other water consultants at EOG. Specifically, they allege that based on their personal knowledge, other water consultants were classified as independent contractors, regularly worked well over 40 hours per week, and were paid a flat day rate regardless of hours worked. So, the Plaintiffs seek to conditionally certify a class defined as: "All water consultants working for EOG during the past 3 years who were classified as independent contractors and paid a day-rate with no overtime, except those hired through Bedrock PC 1099, LLC." Judge Gonzales concludes that the Plaintiffs have met their burden of showing substantial allegations that the putative class members were together the victims of a single decision, policy, or plan. The Plaintiffs support their arguments with declarations from the named Plaintiffs. Their allegations are sufficient to make a first-stage showing that the proposed class is similarly situated. Given that purpose, and the leniency of the standard at the first stage of the certification process, Judge Gonzales determines the Complaint makes substantial allegations of policies affecting water consultants sufficient to merit notification of the class. The other disputes can be addressed on a motion to decertify. Regarding the class notice, Judge Gonzales holds that time is of the essence in notifying the potential class, so he does not require further conference on the proposed notice or method of distribution. He is also sensitive to divulging information of putative class members, but disagrees that the information requested -- names, addresses, telephone numbers, e-mail addresses, work locations, and dates of employment -- implicate privacy concerns. So, EOG will produce all available contact information, including mailing address, email address, phone number for text message communication, and dates of employment/work. Judge Gonzales also disagrees that using mail, e-mail, and text message is too broad. Given the isolated nature of oilfield work, the long stretches of time spent away from home, and the near-universal use of e-mail and texting today, he approves the use of all three methods. On the objection as to the class member's title in the notices, Judge Gonzales notes that in their Reply, the Plaintiffs conceded the point and agreed to use "EOG Water Consultants." Judge Gonzales agrees that 60 days is the typical opt-in period and sustains the objection as to the proposed 90-day timeline. He again notes that the Plaintiffs agreed to a 60-day window in their Reply. Finally, as to the content of the notice, Judge Gonzales once again notes that the Plaintiffs agreed to include the proposed "obligation" language. Therefore, the proposed notice will include the following: "If you choose to join in the suit, you may be asked to: (1) appear for a deposition; (2) respond to written discovery; (3) produce documents and/or (4) appear at trial." With that addition, he approves the proposed notice. Based on the foregoing, Judge Gonzales concludes the Plaintiffs have made substantial allegations that the putative class members are similarly situated. Therefore, he grants the Plaintiffs' Motion for Conditional Certification and permits them to provide the proposed to potential class members. The following collective is conditionally certified: All water consultants working for EOG during the past 3 years who were classified as independent contractors and paid a day-rate with no overtime, except those hired through Bedrock PC 1099, LLC. Ten days from the date of entry of the Order, EOG will provide the Plaintiffs' counsel in Excel (.xlsx) format the following information regarding all putative collective members: a. Full name; b. Last known address(es) with city, state, and zip code; c. Last known e-mail address(es) (non-company address if applicable); d. Last known telephone number(s); e. Beginning date(s) of employment/work; and Within 20 days from the date of entry of the Order, the Plaintiffs' counsel will send a copy of the Court-approved Notice and Consent Form to the putative collective members by first class U.S. mail and by e-mail and/or text message. The putative collective members will have 60 days from the date of mailing of the Notice and Consent Forms to return their signed Consent Forms to the Plaintiffs' counsel for filing with the Court. Within 20 days from the date of entry of the Order, EOG are required to post the Notice and Consent Forms on all relevant EOG jobsites for 60 days in an open and obvious location. The Defendants may remove the notice after 60 days. A full-text copy of the Court's March 14, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/4xyzvyr9 from Leagle.com. ETHOS YOGA: Winegard Files ADA Suit in E.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Ethos Yoga Inc., et al. The case is styled as Jay Winegard, on behalf of himself and all others similarly situated v. Ethos Yoga Inc., Case No. 1:23-cv-02110 (E.D.N.Y., March 19, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ethos Yoga Inc. -- https://www.ethosyoga.net/ -- is a yoga studio specializing in the sacred movement for all bodies types, holistic healing, and nature-based practices.[BN] The Plaintiff appears pro se. EXPEDIA GROUP: Faces Suit Over Consumer Laws Violation ------------------------------------------------------ Expedia Group, Inc. disclosed in its Form 10-K report for the fiscal year ended December 31, 2022, filed with the Securities and Exchange Commission on February 10, 2023, that in or around January 2018, a putative class action lawsuit was filed in the District court in Lod, Israel against a number of online travel companies including Expedia, Inc., and Hotels.com. The plaintiff generally alleges that the defendants violated Israeli consumer laws by limiting hotel price competition. The plaintiff has filed a motion for class certification which the defendants have opposed. Expedia Group, Inc. is an online travel company based in Washington State. EXPEDIA GROUP: Settlement in Principle Reached in Israeli Suit -------------------------------------------------------------- Expedia Group, Inc. disclosed in its Form 10-K report for the fiscal year ended December 31, 2022, filed with the Securities and Exchange Commission on February 10, 2023, that in or around September 2016, a putative class action lawsuit was filed in the District Court in Tel Aviv, Israel against Hotels.com. The plaintiff generally alleges that Hotels.com violated Israeli consumer protection laws in various ways by failing to calculate and display VAT charges in pricing displays shown to Israeli consumers. The plaintiff has filed a motion for class certification which Hotels.com has opposed. In January 2023, the parties agreed to a settlement in principle. Expedia Group, Inc. is an online travel company based in Washington State. FAMILY STYLE INC: Faces Harris Suit Over Labor Code Violations -------------------------------------------------------------- In the class action complaint, Reshennia Harris, individually and on behalf of all others similarly situated v. Family Style, Inc., a corporation; Lawrence Vavra, an individual; and Does 1 through 50, inclusive, Case No. 37-2023-00011565-CU-OE-CTL, (Cal. Super. Ct., March 21, 2023), Harris alleges that the Family Style, Inc. violated the California Labor Code and Business and Professions Code, the California Labor Code, and the Industrial Welfare Commission Wage Orders. Allegedly, the Defendants underpaid the class members' wages by failing to include all forms of remuneration, including nondiscretionary performance bonuses, in their hourly overtime, sick pay, and premium rates, resulting in underpayments of wages. Among other things, the defendants also failed to maintain compliant meal and rest period policies and practices, resulting in a failure to pay wages and premiums, says the suit. Family Style, Inc. is a Delaware corporation that maintains operations and conducts business throughout the state of California, including in this county. Originally founded in 2017 by Lawrence Vavra, the company offers delivery of food products at home. [BN] The Plaintiff is represented by: Nicholas J. Ferraro, Esq. Lauren N. Vega, Esq. FERRARO VEGA EMPLOYMENT LAWYERS, INC. 3160 Camino del Rio South, Suite 308 San Diego, CA 92108 Telephone: (619) 693-7727 Facsimile: (619) 350-6855 E-mail: nick@ferrarovega.com lauren@ferrarovega.com FCTI INC: Bid for Summary Judgment in Polvay Class Suit Denied -------------------------------------------------------------- In the case, JEROME POLVAY, Individually and on Behalf of all Others Similarly Situated, Plaintiff v. FCTI, INC., and DOES 1-10, Inclusive, Defendants, Case No. 22-cv-4315 (JSR) (S.D.N.Y.), Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York denies FCTI's motion for summary judgment. On Dec. 7, 2022, FCTI moved for summary judgment in its favor on all claims asserted by Polvay in the First Amended Complaint. After full briefing, the Court heard oral argument on FCTI's motion on Jan. 6, 2023. It then denied FCTI's motion by a "bottom-line" order dated Jan. 13, 2023, promising that a subsequent memorandum would explain the reasons for the Court's order. The present decision is that Memorandum Order. FCTI supplies ATMs to 7-Eleven convenience stores. ATMs allow customers to withdraw cash, transfer funds, and check the balance of their bank accounts. Sometimes, a bank will charge a fee to a customer who completes a transaction through an ATM that is outside of the bank's own network. When a customer checks their balance through an FCTI ATM, FCTI receives a portion -- on average, $0.17 -- of the fee assessed by the customer's bank. On Oct. 12, 2021, Mr. Polvay used an FCTI ATM at a 7-Eleven located at 1239 2nd Avenue, New York, New York. He sought to withdraw $40 in cash. The ATM then displayed a screen which asked, "Would you like to view your account balance?" Mr. Polvay pressed "YES." Following that, the ATM displayed a screen which asked Mr. Polvay, "Would you like to print your Balance and continue the Transaction?" The screen presented Mr. Polvay with two options: One option was to "Continue"; the other was to "Cancel." Believing that he needed to press "Continue" in order to complete the transaction, Mr. Polvay pressed "Continue." Mr. Polvay's bank, TD Bank, then charged him two $3 fees for conducting balance inquiries. The first balance inquiry was initiated when Mr. Polvay requested to see his account balance. The second balance inquiry was initiated when Mr. Polvay pressed "Continue" at the Continue/Cancel Prompt. Mr. Polvay did not anticipate that he would incur a fee for pressing "Continue." While he understood that he would be charged a fee for making a balance inquiry, and while he also understood that viewing his account balance would qualify as a balance inquiry, he did not believe that pressing "Continue" at the Continue/Cancel Prompt would initiate a second balance inquiry. On May 25, 2022, Mr. Polvay initiated the putative class action by filing the Complaint, which was subsequently amended on July 6, 2022. The FAC alleges that the Continue/Cancel Prompt was deceptive and/or false, in violation of section 349 and 350 of New York General Business Law. As alleged in the FAC, retail bank customers are accustomed to having to "opt-in" to making a balance inquiry. The FAC alleges that these practices create a reasonable expectation that pressing "Continue" at the Continue/Cancel Prompt would not initiate a balance inquiry. Because pressing "Continue" at that prompt did initiate a balance inquiry, the Complaint asserts, that prompt was deceptive and/or false. On Dec. 7, 2022, FCTI moved for summary judgment on all of Mr. Polvay's claims. Mr. Polvay asserts claims under two sections of New York General Business Law ("GBL"). The first, section 349 makes it unlawful to engage in deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in New York. The second, section 350, makes it unlawful to engage in false advertising in the conduct of any business, trade or commerce or in the furnishing of any service in New York. FCTI argues that summary judgment should be entered in favor of it on three grounds. First, it argues that Mr. Polvay (rather than his bank, TD Bank) was not the recipient of any wrongful communications from FCTI. Second, it argues that the meaning of the Continue/Cancel Prompt was clear. Finally, FCTI argues that, even if the Continue/Cancel Prompt was deceptive or misleading, it did not cause Mr. Polvay to suffer any injury. Judge Rakoff finds that there are genuine issues of material fact concerning the essential elements of each of Mr. Polvay's claims. First, he says FCTI's argument wholly misunderstands Mr. Polvay's claims. The Plaintiff alleges that FCTI's deceptive statement was not the report sent to TD Bank but was instead the Continue/Cancel Prompt. The Continue/Cancel Prompt, according to the Plaintiff, misleadingly suggested that pressing "Continue" would not initiate a second balance inquiry. And FCTI's first argument does not establish that there is no genuine dispute of material fact concerning whether the Continue/Cancel prompt misled Mr. Polvay. Thus, summary judgment cannot be entered to FCTI on this ground. Second, the entire focus of the current controversy is the Continue/Cancel Prompt. FCTI does not cite to a single statement made by Mr. Polvay that amounts to an admission that Mr. Polvay understood "Continue" to be a request to initiate a second balance inquiry, nor does it cite to any other part of the record that establishes Mr. Polvay's understanding of that message. To the extent that the issue is how a reasonable person would have understood the Continue/Cancel Prompt, there too there is a genuine issue of material fact. Since there is a genuine dispute of material fact concerning whether the Continue/Cancel Prompt clearly conveyed a meaning related to a second balance inquiry, summary judgment cannot be awarded to FCTI on this ground. Lastly, Judge Rakoff finds that whatever ambiguities exist in Mr. Polvay's testimony are not so grave and so thoroughgoing that a reasonable trier of fact could not find in his favor. Additionally, Mr. Polvay's deposition testimony is relatively unambiguous on this point, and it confirms the Court's conclusion that there is a genuine dispute of material fact on causation. For these reasons, Judge Rakoff denies summary judgment to FCTI on those claims. A full-text copy of the Court's March 10, 2023 Memorandum Order is available at https://tinyurl.com/35emap69 from Leagle.com. FENCEWORKS INC: Mariscal Files Suit in Cal. Super. Ct. ------------------------------------------------------ A class action lawsuit has been filed against Fenceworks, Inc. The case is styled as Martin Mariscal, an individual, on behalf of himself, and on behalf of all persons similarly situated v. Fenceworks, Inc., Case No. STK-CV-UOE-2023-0002705 (Cal. Super. Ct., San Joaquin Cty., March 20, 2023). The case type is stated as "Unlimited Civil Other Employment." Fenceworks, Inc. -- https://fenceworks.us/ -- are California's premier fence company to homebuilders.[BN] The Plaintiff is represented by: Jean-Claude Lapuyade, Esq. JCL LAW FIRM, APC 5440 Morehouse Dr., Ste. 3600 San Diego, CA 92121-6720 Phone: 619-599-8292 Fax: 619-599-8291 Email: jlapuyade@jcl-lawfirm.com FERGUSON ENTERPRISES: Fails to Pay Timely Wages, Strang Suit Says ----------------------------------------------------------------- RICHARD STRANG and ERASMIA DEAVER, individually and on behalf of all others similarly situated, Plaintiffs v. FERGUSON ENTERPRISES, LLC, Defendant, Case No. 1:23-cv-00352-MAD-CFH (N.D.N.Y., March 20, 2023) is a class action against the Defendant for its failure to pay timely wages in violation of the New York Labor Law. Mr. Strang was employed by the Defendant as a maintenance technician at a Ferguson location in Coxsackie, New York from approximately July 2017 to August 2022. Ms. Deaver was employed by the Defendant as a warehouse associate/equipment operator at a Ferguson location in Coxsackie, New York from approximately August 2021 to March 2023. Ferguson Enterprises, LLC is a distributor of fire and fabrication products and industrial products and services, with a principal place of business in Newport News, Virginia. [BN] The Plaintiffs are represented by: Philip L. Fraietta, Esq. Yitzchak Kopel, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: pfraietta@bursor.com ykopel@bursor.com aleslie@bursor.com FINN SPECIALTIES: Jones Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Finn Specialties, Inc. The case is styled as Damon Jones, on behalf of himself and all others similarly situated v. Finn Specialties, Inc., Case No. 1:23-cv-02403 (S.D.N.Y., March 21, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Finn Specialties, Inc. doing business as Touch of Finland -- https://www.touchoffinland.com/ -- is a gift shop in Marquette, Michigan.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com FLINT, MI: Counsel Fee Award in Water Crisis Litig. Affirmed ------------------------------------------------------------ The U.S. Court of Appeals for the Sixth Circuit affirms the district court's ruling on a Fee and Expense Motion in the litigation related to the Flint, Michigan water crisis. Scores of lawsuits were filed in, removed to, or transferred to the U.S. District Court for the Eastern District of Michigan following the Flint Water Crisis. Putative class action lawsuits and lawsuits brought by thousands of individual plaintiffs were consolidated in what have since become known as the Flint Water Cases. Upon consolidation, the district court appointed Theodore Leopold of Cohen Milstein Sellers & Toll PLLC and Michael Pitt of Pitt McGehee Palmer & Rivers PC as Co-Lead Class Counsel for the putative class, and Corey Stern of Levy Konigsberg LLP and Hunter Shkolnik of Napoli Shkolnik PLLC as Co-Liaison Counsel for all individual cases. After years of hard-fought and arm's-length negotiation, the Plaintiffs' Counsel and the Settling Defendants reached a proposed settlement agreement. The settlement sought to resolve the claims of tens of thousands of minors, adults, property owners, and business owners who suffered personal and property damage as a result of the Flint Water Crisis. In the parties' Amended Settlement Agreement: -- the State of Michigan and its individual officials agreed to pay $600 million, -- the City of Flint, Flint's City Emergency Managers, and several City employees agreed to pay $20 million, -- McLaren Health Care Corporation, McLaren Regional Medical Center, and McLaren Flint Hospital agreed to pay $20 million, and -- Rowe Professional Services Company agreed to pay $1.25 million into the FWC Qualified Settlement Fund. Prior to the district court's approval of the settlement agreement, the Plaintiffs' Counsel also filed a Motion for an Award of Attorneys' Fees and Reimbursement of Expenses. On Feb. 4, 2022, the district court granted the Plaintiffs' Counsel's Fee and Expense Motion. Specifically, the court awarded the Plaintiffs' Counsel reimbursement for expenses in the amount of $7.15 million. Likewise, the court awarded the Plaintiffs' Counsel a Common Benefit Assessment of 6.33% of the total $626.25 million settlement amount. Apart from this 6.33% global Common Benefit Assessment, the court capped the aggregate amount that may be paid in other fees and common benefit awards at 25% -- a reduction from the Plaintiffs' Counsel's original request of 27%. Now, three Objector-Appellant groups appeal that award, namely: (1) the Hall Objectors -- Raymond Hall and Ashley Jankowiak are members of the Settlement Class; (2) the Chapman Objectors -- are individual plaintiffs represented by Mark. R. Cuker of the Cuker Law Firm -- they are not members of the Settlement Class; and (3) the Roberts Objector -- also represented by Mr. Cuker -- Nadine Roberts who objects on her own behalf and on behalf of her foster daughter, D.J. D.J. is the only Objector-Appellant who received a bone lead scan from the Napoli firm. Together, the Appellants argue they were entitled to more detailed discovery of the Counsel's billing and costs records, that the fee award's common benefit structure constitutes an abuse of discretion, and that a $500 charge for bone lead scans performed by Co-Liaison Counsel was unreasonable. The Sixth Circuit finds that the Appellants "fail to demonstrate that the district court abused its discretion in denying their motion for discovery. . . they fail to point to a single authoritative source that affords them a substantive right to discovery, let alone the detailed discovery they seek. Accordingly, the district court did not abuse its discretion in denying the motion for discovery as to Plaintiffs' Counsel's detailed billing and costs records." The Hall Objectors challenge what they call "special assessments" -- the Common Benefit Assessments imposed on claimants who either did not retain counsel or retained counsel after Aug. 20, 2020. The Appellees argue that the Hall Objectors lack standing to appeal aspects of the settlement that do not adversely affect them. The Sixth Circuit finds that "the Hall Objectors lack standing to challenge the Common Benefit Assessment provisions of the district court's Fee Order. . . No part of the Minors' settlement allocation includes a class component, so the Hall Objectors would not be affected by any CBA change associated with Minors, because the Hall Objectors are only eligible to make claims in the Adult Exposure, Property, and Business Economic Loss categories under the Settlement's terms. . . Were they to have standing to appeal the issue, they fail to demonstrate that the district court abused its discretion in awarding Plaintiffs' Counsel Common Benefit Assessments, particularly when those assessments achieve parity among settlement beneficiaries and are reasonable under the circumstances." Pursuant to the district court's Fee Order, the Sixth Circuit finds that "the Chapman Objectors owe 31.33% of the value of their claims in attorneys' fees -- less than the 33.33% they would have otherwise owed Mr. Cuker. If the Chapman Objectors preferred the terms of their contingency fee agreements with Mr. Cuker, they were free to litigate their individual claims. They needed not join the settlement at all." Because the Chapman Objectors are not aggrieved by the Fee Order's common benefit structure, the Court concludes that they lack standing to appeal the Order's Common Benefit Assessments. As individual litigants rather than settlement class members, the Chapman Objectors possess no inherent right to object. The Chapman Objectors' final argument on appeal is that the district court erred in ordering payment of $500 for bone scans. Specifically, the Chapman Objectors argue that the district court violated "fundamental principles of due process and fairness" by imposing a $500 charge for bone scans without prior notice or hearing. The Appellees, in turn, argue that "Nadine Roberts, whose foster daughter is the only objector to have received a bone scan from Co-Liaison Counsel, lacks standing to appeal the district court's order because she agreed to pay $500 for the scan and is therefore not aggrieved. Alternatively, if this Court reaches the merits of the issue, the Appellees argue that the $500 charge was reasonable." Because Roberts was already aware of the $500 charge, the Sixth Circuit concludes Roberts "cannot claim to have been aggrieved by the $500 ceiling set by the district court. . . Roberts lacks standing to appeal the district court's Bone Scan Expense Order. . . she has failed to appeal the district court's Final Approval Order, wherein the court concluded that $500 was a reasonable charge. . . Roberts has not, and cannot, demonstrate that the district court abused its discretion in making that determination." The appealed case is IN RE: FLINT WATER CASES. LUKE WAID, Plaintiff, INDIVIDUAL PLAINTIFFS; SETTLEMENT CLASS PLAINTIFFS, Plaintiffs-Appellees, v. RICHARD DALE SNYDER, et al., Defendants, RAYMOND HALL and ASHLEY JANKOWIAK (22-1185); HELEN CHAPMAN, DOROTHY CHAPMAN, SHAMIYA CHAPMAN, LASHONDA JONES, SHIRLEY GLOVER on behalf of herself and her children, J.S. and A.S., TRISHA WALTER, TOMMIE LOWERY, JR. on behalf of himself and his children, T.L., I.L., and M.L., LINDA WELCHE, REKIYAH WILLIAMS on behalf of herself and her children, M.W., O.B., D.W., and D.W., ASHLEY SUBLET on behalf of herself and her children, E.W. and E.W., ELIZABETH FRANKLIN on behalf of herself and her children, E.W. and E.W., FLORLISA STEBBINS, ALBERT HARRIS, SHEILA HARRIS, NADINE ROBERTS on behalf of herself and her foster daughter, D.J., and EARL WELCHE (22-1197); NADINE ROBERTS on behalf of herself and her foster daughter, D.J. (22-1605), Objectors-Appellants, Case Nos. 22-1185, 22-1197, 22-1605, (6th Cir.) A full-text copy of the Opinion dated March 17, 2023, is available at https://tinyurl.com/mrydtxdt from Leagle.com. FORD MOTOR: Scott Suit Transferred to E.D. Michigan --------------------------------------------------- The case styled as Ryan Scott, individually and on behalf of all others similarly situated v. Ford Motor Company, Case No. 3:22-cv-50352 was transferred from the U.S. District Court for the Northern District of Illinois, to the U.S. District Court for the Eastern District of Michigan on March 21, 2023. The District Court Clerk assigned Case No. 2:23-cv-10653-DPH-EAS to the proceeding. The nature of suit is stated as Motor Vehicle Product Liability. Ford Motor Company -- http://www.ford.com/-- is an American multinational automobile manufacturer headquartered in Dearborn, Michigan.[BN] The Plaintiff appears pro se. Jonathan David Lindenfeld, Esq. FEGAN SCOTT LLC 140 Broadway, Ste. 46th Floor New York, NY 10016 Phone: (332) 216-2101 Fax: (917) 725-9346 Email: jonathan@feganscott.com - and - Elizabeth A. Fegan, Esq. FEGAN SCOTT LLC 150 S. Wacker Dr., 24th Floor, Suite 3300 Chicago, IL 60543 Phone: (312) 741-1019 Fax: (312) 264-0100 Email: beth@feganscott.com The Defendants are represented by: Mark Boyle, Esq. DONOHUE, BROWN 140 S. Dearborn Street. Suite 700 Chicago, IL 60603 Phone: (312) 422-0900 FRAICHE CATERING: Gutierrez Files Suit in Cal. Super. Ct. --------------------------------------------------------- A class action lawsuit has been filed against Fraiche Catering, Inc., et al. The case is styled as Gerardo Gutierrez, individually, and on behalf of all others similarly situated v. Dignity Health, Does 1 through 50, inclusive, Case No. CGC23605255 (Cal. Super. Ct., San Francisco Cty., March 20, 2023). The case type is stated as "Other Non-Exempt Complaints." Fraiche Catering -- https://fraichecater.com/ -- is an award-winning event planning and gourmet catering company in San Francisco and Surrounding Bay Areas.[BN] The Plaintiff is represented by: J. Kirk Donnelly, Esq. LAW OFFICES OF J. KIRK DONNELLY 2173 Salk Avenue, Suite 250 Carlsbad, CA 92008 Phone: (866) 760-1919 Email: kdonnelly@jkd-law.com GARUDA LABS INC: Brand Files Suit in Cal. Super. Ct. ---------------------------------------------------- A class action lawsuit has been filed against Garuda Labs, Inc., et al. The case is styled as Kitty Brand, on behalf of herself and others similarly situated v. Garuda Labs, Inc., Does 1 to 100, inclusive, Case No. CGC23605281 (Cal. Super. Ct., San Francisco Cty., March 21, 2023). The case type is stated as "Other Non-Exempt Complaints." Garuda Labs, Inc. is a privately-held marketplace where local businesses and talent find each other, making it easy for businesses to find quality hourly workers on demand.[BN] The Plaintiff is represented by: David Lavi, Esq. E & L LLP 8889 West Olympic Boulevard, 2nd Floor Beverly Hills, CA 90211 GENERAL ELECTRIC: Faces Securities Suit in New York Court --------------------------------------------------------- General Electric Company disclosed in its Form 10-K report for the fiscal year ended December 31, 2022, filed with the Securities and Exchange Commission on February 10, 2023, that since November 2017, several putative shareholder class actions under the federal securities laws have been filed against GE and certain affiliated individuals and consolidated into a single action currently pending in the U.S. District Court for the Southern District of New York. In October 2019, the lead plaintiff filed a fifth amended consolidated class action complaint naming as defendants GE and current and former GE executive officers. It alleges violations of Sections 10(b) and 20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 related to insurance reserves and accounting for long-term service agreements and seeks damages on behalf of shareholders who acquired GE stock between February 27, 2013, and January 23, 2018. GE filed a motion to dismiss in December 2019. In January 2021, the court granted the defendant's motion to dismiss the majority of the claims. Specifically, the court dismissed all claims related to insurance reserves, as well as all claims related to accounting for long-term service agreements, with the exception of certain claims about historic disclosures related to factoring in the Power business that survives as to GE and its former CFO Jeffrey S. Bornstein. All other individual defendants have been dismissed from the case. In April 2022, the court granted the plaintiffs' motion for class certification for shareholders who acquired stock between February 26, 2016, and January 23, 2018, and granted the plaintiffs' request to amend their complaint. In September 2022, GE filed a motion for summary judgment on the plaintiffs' remaining claims General Electric Company is an industrial company based in Massachusetts. GENERAL ELECTRIC: Faces Suit Over Retirement Savings Plan --------------------------------------------------------- General Electric company disclosed in its Form 10-K report for the fiscal year ended December 31, 2022, filed with the Securities and Exchange Commission on February 10, 2023, that four putative class action lawsuits have been filed regarding the oversight of the GE Retirement Savings Plan (RSP), and those class actions have been consolidated into a single action in the U.S. District court for the District of Massachusetts. The consolidated complaint names as defendants GE, GE Asset Management, current and former GE, and GE Asset Management executive officers and employees who served on fiduciary bodies responsible for aspects of the GE RSP during the class period. This action alleges that the defendants breached their fiduciary duties under the Employee Retirement Income Security Act (ERISA) in their oversight of the GE RSP, principally by retaining five proprietary funds that plaintiffs allege were underperforming as investment options for plan participants and by charging higher management fees than some alternative funds. The plaintiffs seek unspecified damages on behalf of a class of GE RSP participants and beneficiaries from September 26, 2011, through the date of any judgment. In August and December 2018, the court issued orders dismissing one count of the complaint and denying GE's motion to dismiss the remaining counts. In September 2022, both GE and the plaintiffs filed motions for summary judgment on the remaining claims. General Electric company is an industrial company that operates in Massachusetts. GLOTRITION LLC: Slade Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Glotrition, LLC. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Glotrition, LLC, Case No. 1:23-cv-02331 (S.D.N.Y., March 20, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Glotrition -- https://glotrition.com/ -- is the first line of collagen based beauty products dedicated to treating aging from the inside out for firmer, smoother, younger looking skin.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com GREENE COUNTY BANCORP: Faces Broockmann Suit in New York Court -------------------------------------------------------------- Greene County Bancorp, Inc. disclosed in its Form 10-K report for the fiscal year ended December 31, 2022, filed with the Securities and Exchange Commission on February 10, 2023, that in April 26, 2022, Andrew Broockmann, a customer of The Bank of Greene County, filed a putative class action complaint against the Bank in the United States District Court for the Northern District of New York. The complaint alleges that the Bank improperly assessed overdraft fees on debit-card transactions that were authorized on a positive account balance but settled on a negative balance. Mr. Broockmann, on behalf of the putative class, seeks compensatory damages, punitive damages, enjoinment of the conduct complained of, and costs and fees. Greene County Bancorp, Inc. is a bank holding company based in New York. GREG W. BECKER: Siddiqui Sues Over Exchange Act Violation --------------------------------------------------------- Aizaz Siddiqui, individually and on behalf of all others similarly situated v. GREG W. BECKER and DANIEL J. BECK, Case No. 3:23-cv-01228 (N.D. Cal., March 17, 2023), is brought on behalf of a class consisting of all persons other than the Defendants who purchased or otherwise acquired securities of SVB Financial Group ("SVB") between December 7, 2022 and March 8, 2023, inclusive (the "Class Period"), and were damaged thereby (the "Class"), alleging that the Defendants violated the Securities Exchange Act of 1934 (the "Exchange Act"), and seeking to recover compensable damages caused by Defendants' violations of the federal securities laws and to pursue remedies under the Exchange Act and Rule 10b-5 promulgated thereunder. SVB offers commercial and private banking products and services through its principal subsidiary, Silicon Valley Bank. Silicon Valley Bank was one of Silicon Valley's leading financial institutions for venture capital funds. During the Class Period, Defendants materially misrepresented and/or concealed that Silicon Valley Bank was facing a severe liquidity crisis resulting from declining customer deposits and increasing customer cash burn rates. On March 8, 2023, after making numerous statements assuring investors that its liquidity was stable and secure, SVB announced that Silicon Valley Bank had incurred a massive $1.8 billion loss in connection with the sale of "substantially all of its available for sale securities portfolio." SVB further announced that it would be conducting a capital raise of nearly $2 billion to account for the loss. SVB's stock price plummeted in response to the revelation. From a market close price of $267.83 per share on March 8, 2023, SVB's stock price fell to $106.04 per share on March 9, 2023 on extremely heavy volume. On March 10, 2023, market regulators halted trading of SVB stock. Silicon Valley Bank is presently under the control of the California Department of Financial Protection and Innovation and the Federal Deposit Insurance Corporation. Investors in SVB have suffered significant losses. This action seeks to compensate those investors and recover the damages they sustained as a result of Defendants' fraudulent conduct, says the complaint. The Plaintiff purchased SVB securities at artificially inflated prices during the Class Period and was damaged upon the revelation of the Defendants' fraud. Greg W. Becker is SVB's CEO and President. Daniel J. Beck ("Beck) is SVB's CFO.[BN] The Plaintiff is represented by: Adam M. Apton, Esq. LEVI & KORSINSKY, LLP Battery Street East, Suite 100 San Francisco, CA 94111 Phone: 415-373-1671 Email: aapton@zlk.com GREGORY L. HOPKINS: Court Narrows Weitlauf Claims ------------------------------------------------- Judge Lawrence J. Vilardo of the U.S. District Court for the Western District of New York grants in part the Motion to Dismiss filed by the Defendants: Gregory L. Hopkins, G.L. Hopkins Enterprises LLC, GPG Processing LLC, Premier Asset Management Group Inc., Quality Resolution Services LLC, Changing the Community Inc. and Source Solutions Management LLC, in the case captioned as JENNIFER WEITLAUF, Plaintiff, v. GREGORY L. HOPKINS, et al., Defendants, Case No. 21-CV-1052-LJV, (W.D.N.Y.). Jennifer Weitlauf commenced this putative class action under the Fair Debt Collection Practices Act, the Racketeer Influenced and Corrupt Organizations Act, and New York State law. The individual defendants in this case are Gregory L. Hopkins, Roy J. Richards, and Bradley C. Williams. The business filings, Paycheck Protection Program applications, criminal prosecutions, and civil forfeiture actions involving Hopkins, Richards, Williams and their relatives reveal that the individual defendants have registered at least eight separate business entities to use as vehicles for their pseudonymous collection activities. These entities -- several of which are defendants in this case -- include two holding companies, at least seven collection entities, and one "football training camp." The two holding company defendants are G.L. Hopkins Enterprises, LLC, and RJR Org. LLC. Weitlauf alleges Hopkins is the "sole member and sole employee" of GLHE; that Richards is the "sole member and sole employee" of RJRO; that Hopkins and Richards "freely and continuously comingle[]" their personal funds with their respective companies' funds; and that both Hopkins and Richards "disregard[] corporate formalities." The seven named collection entity defendants are GPG; SSM; Standard Management Associates, LLC; Quality Resolution Services LLC; 4CIS, Inc.; Asset Retention Group, LLC; and Premier Asset Management Group, Inc. Each collection entity defendant "holds itself out as a third-party debt collector." GPG lists Hopkins as its owner and GLHE as its manager in public filings. SSM lists Hopkins, Richards, GLHE, and RJRO as its officers in public filings. SMA and 4CIS were registered by Williams. Weitlauf alleges the Defendants violated various provisions of the FDCPA. She alleges Allied Management is a pseudonym for SMA. She bases that allegation on the fact the two businesses used the same private UPS mailbox. Weitlauf identifies links between and among various defendants: shared addresses, a shared workers' compensation plan, Williams' guilty plea implying a connection with Hopkins and RJRO, and multiple defendants' positions as officers of SSM. Viewed as a whole, the Court finds that the "amended complaint's factual allegations draw a complex connection of relationships between and among the Defendants. And unlike the conclusory allegations that many courts have found insufficient to sustain a civil RICO claim, Weitlauf's allegations are specific and factual, giving rise to a plausible inference that the Defendants are related to one another. Weitlauf therefore has plausibly alleged the relationship prong of an association-in-fact." However, "beyond the connections that establish a relationship between the Defendants, Weitlauf provides no basis from which to infer that the Defendants "acted on behalf of the enterprise as opposed to on behalf of [themselves]" when they attempted to collect debt." The Court concludes that "Weitlauf has made only conclusory allegations that the Defendants are united by a common purpose. Nothing in the amended complaint suggests that the Defendants do not merely commit similar but independent frauds, to 'advance their individual self-interests. . . Weitlauf's conclusory allegations cannot defeat a motion to dismiss." Weitlauf also asserts claims under New York State law, alleging that the Defendants engaged in "deceptive acts and practices." Since the other Defendants -- Richards, Williams, RJRO, 4CIS, SMA, and ARG -- have not yet appeared, the Court does not dismiss Weitlauf's federal claims against them because it lacks the discretion to exercise supplemental jurisdiction over the state law claims against the Moving Defendants. Because the Moving Defendants Have offered no other reason for the Court to dismiss the state law claims against them, their motion to dismiss Weitlauf's state law claims is denied. Moreover, the Court gives Weitlauf permission to amend the complaint so that she might salvage her claims even against the Moving Defendants. If Weitlauf amends her complaint again, the Court reminds her to file a RICO Case Statement as directed by Local Rule 9. A full-text copy of the Decision & Order dated March 17, 2023, is available at https://tinyurl.com/bd3uh5h5 from Leagle.com. GUIDANT GLOBAL: Owens Files Suit in Cal. Super. Ct. --------------------------------------------------- A class action lawsuit has been filed against Guidant Global Inc., et al. The case is styled as Najla Owens, on behalf of herself and all others similarly situated v. Guidant Global Inc., Aston Carter Inc., Does 1-50, Case No. 34-2023-00336504-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., March 20, 2023). The case type is stated as "Other Employment – Civil Unlimited." Guidant Global -- https://www.guidantglobal.com/ -- provide global workforce management solutions (MSP, RPO & SOW) that help companies find the best permanent and contingent talent.[BN] The Plaintiff is represented by: James R. Hawkins, Esq. JAMES HAWKINS APLC 9880 Research Drive, Suite 200 Irvine, CA 92318 Phone: (949) 387-7200 Fax: (949) 387-6676 Email: James@jameshawkinsaplc.com H&H DERM LLC: Hernandez Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against H&H Derm, LLC. The case is styled as Daysi Hernandez, individually, and on behalf of all others similarly situated v. H&H Derm, LLC, Case No. 1:23-cv-02306 (S.D.N.Y., March 17, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. H&H Derm, LLC doing business as Apostrophe -- https://www.apostrophe.com/ -- is a virtual skincare service that matches clients with board-certified dermatologists.[BN] The Plaintiff is represented by: William Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, Ste. 39th Floor New York, NY 10007 Phone: (212) 595-6200 Email: wdownes@mizrahikroub.com HEY HONEY INC: Slade Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Hey Honey Inc. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Hey Honey Inc., Case No. 1:23-cv-02334 (S.D.N.Y., March 20, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Hey Honey -- https://www.heyhoney.com/ -- is a BioActive skincare line infused with time-honored founding ingredients: Raw Honey and Bee Propolis.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com HMS HOST: Stone Sues Over Tipped Employees' Unpaid Minimum Wages ---------------------------------------------------------------- JEFFREY STONE and ASHLEY GREEN, individually and on behalf of all others similarly situated, Plaintiffs v. HMS HOST CORPORATION, Defendant, Case No. 2:23-cv-00137-LEW (D. Me., March 20, 2023) is a class action against the Defendant for its failure to pay minimum wages for all hours worked and failure to pay timely wages in violation of the Fair Labor Standards Act and Maine's Minimum Wage and Overtime Law. Mr. Stone has been employed by the Defendant as a tipped employee since approximately August 2016. Ms. Green was employed as a tipped employee since approximately January 2019 until September 2022. HMS Host Corporation is an operator of restaurants at many airports in the U.S. [BN] The Plaintiffs are represented by: Peter Mancuso, Esq. BOREALIS LAW, PLLC 97 India St. Portland, ME 04101 Telephone: (207) 619-0884 E-mail: peter@maineworkerjustice.com HORIZON MANAGEMENT: Underpays Home Healthcare Workers, Limar Says ----------------------------------------------------------------- ERNESTINE LIMAR, individually and on behalf of all others similarly situated, Plaintiff v. HORIZON MANAGEMENT, LLC, Defendant, Case No. 3:23-cv-00207-SDD-EWD (M.D. La., March 17, 2023) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated home healthcare workers overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. The Plaintiff has worked for the Defendant as a home healthcare worker from approximately September 1, 2019 to the present. Horizon Management, LLC is a personal care services provider, with its principal place of business located at 5246 Evangeline St., Baton Rouge, Louisiana. [BN] The Plaintiff is represented by: Philip Bohrer, Esq. Scott E. Brady, Esq. BOHRER BRADY, LLC 8712 Jefferson Highway, Suite B Baton Rouge, LA 70809 Telephone: (225) 925-5297 Facsimile: (225) 231-7000 E-mail: phil@bohrerbrady.com scott@bohrerbrady.com HUGH & GRACE: Slade Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Hugh & Grace, Inc. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Hugh & Grace, Inc., Case No. 1:23-cv-02333 (S.D.N.Y., March 20, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Hugh & Grace, Inc. -- https://hughandgrace.com/ -- is a first-of-its-kind, innovative, hormone-safe brand focusing on helping to reduce chemical exposure through thoughtful self-care products.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com HYPNO COMICS & GAMES: Sookul Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Hypno Comics & Games. The case is styled as Sanjay Sookul, on behalf of himself and all others similarly situated v. Hypno Comics & Games, Case No. 1:23-cv-02396 (S.D.N.Y., March 21, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Hypno Comics & Games -- https://hypnocomics.com/ -- is a comic book store in Pahrump, Nevada.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com ICOT HOLDINGS: Bid for Class Certification in Bank TCPA Suit Denied ------------------------------------------------------------------- In the case, TODD C. BANK, Plaintiff v. ICOT HOLDINGS, LLC AND ICOT HEARING SYSTEMS, LLC, Defendants, Case No. 18-CV-2554 (AMD) (PK) (E.D.N.Y.), Judge Ann M. Donnelly of the U.S. District Court for the Eastern District of New York denies the Plaintiff's motion to certify the class. The Plaintiff brought the action individually and as a class action, alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Sections 227 et seq., and New York General Business Law ("GBL") Section 399-p. He claims that he answered several prerecorded phone calls promoting hearing aids while at his mother's home. His mother's phone was on the National Do-Not-Call Registry, and the calls were made without the prior express written consent of any person who had the legal right to provide such consent. On Jan. 29, 2021, the Plaintiff moved to certify the class. Judge Donnelly referred the motion to the Honorable Peggy Kuo. Judge Kuo issued a comprehensive Report and Recommendation on Jan. 1, 2023, recommending that Judge Donnelly denies the Plaintiff's motion because the proposed class is not ascertainable. Judge Kuo reasoned that the Plaintiff's class must necessarily include non-subscriber customary users of landline phones, because his mother was the subscriber, not him. As Judge Kuo explained, although it might be possible to match the telephone numbers on the Defendants' list with a list of names to identify the subscribers of those numbers, the list does not ascertain the identities of people who were not subscribers of the telephone numbers but claim some other basis for joining the class. The Plaintiff proposed no other "workable methodology" to ascertain these non-subscriber class members. The Plaintiff filed a timely objection to Judge Kuo's Report and Recommendation, claiming that the proposed class members "do not include non-subscribers," and that the class is therefore ascertainable. He also argues that he is a proper "called party" under the TCPA, and that the Defendants' class settlement in another case does not preclude class certification. In response, the Defendants urge the Court to adopt Judge Kuo's Report and Recommendation. Judge Kuo recommended that Judge Donnelly denies the Plaintiff's motion, because the proposed class was not ascertainable. The Plaintiff argues that Judge Kuo's discussion of ascertainability was based upon the erroneous assumption that the unnamed class members include non-subscriber. He explains that the unnamed class members would be the subscribers to the numbers on the Defendants' list. Judge Donnelly finds that a class consisting solely of subscribers might well be ascertainable, but the Plaintiff would not be an adequate representative of such a class, because it is not settled in this Circuit that a non-subscriber like him -- who does not live with the subscriber but visits regularly -- is a "called party" under the TCPA. Under these circumstances, resolving that issue would take up too much of the litigation, at the expense of the class members. In addition, Judge Donnelly is not aware of any decision in this Circuit finding that these kinds of allegations sufficiently state a claim under the TCPA. The Court would have to determine whether the Plaintiff is a "called party" under the statute, which would complicate the proceedings unnecessarily, at a great expense of time and money to the unaffected subscriber class members. The worst case is that the entire lawsuit could be dismissed, precluding subscriber class members from bringing their claims in a future lawsuit that does not even feature the plaintiff. The possibility of that bizarre result illustrates why the Plaintiff would not be an adequate representative of a subscriber class. Lastly, Judge Donnelly says she does not address the Plaintiff's objections to the portions of Judge Kuo's Report and Recommendation recommending the denial of his motion because he did not opt out of a related class-action litigation and his claims were therefore "released." In view of her analysis, Judge Donnelly adopts Judge Kuo's well-reasoned Report and Recommendation in its entirety. She denies the Plaintiff's motion to certify the class. A full-text copy of the Court's March 10, 2023 Memorandum Decision & Order is available at https://tinyurl.com/2b6w2p6k from Leagle.com. IMMUNOCOLOGIE LLC: Slade Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Immunocologie, LLC. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Immunocologie, LLC, Case No. 1:23-cv-02332 (S.D.N.Y., March 20, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Immunocologie, LLC -- https://immunocologie.com/ -- offers all natural, science driven luxury skincare products.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com INDEPENDENT LIVING: Fails to Safeguard Patients' Info, Riggins Says ------------------------------------------------------------------- DONSHAY RIGGINS, on behalf of himself and all others similarly situated v. INDEPENDENT LIVING SYSTEMS, LLC, Case No. 1:23-cv-21071 (S.D. Fla., Mar. 20, 2023) alleges that the Defendant failed to properly secure and safeguard personal identifiable information (PII) of more than 4.2 million individuals, including name, address, date of birth, driver's license, state identification, Social Security number, financial account information, medical record number, Medicare or Medicaid identification, CIN No., mental or physical treatment/condition information, food delivery information, diagnosis code or diagnosis information, admission/discharge date, prescription information, billing/claims information, patient name, and health insurance information. On July 5, 2022, the Defendant learned of a data breach on its network that occurred between June 30 and July 5, 2022. The Defendant determined that, during the Data Breach, an unknown actor accessed and/or acquired the PII of the Plaintiff and Class Members. On March 14, 2023, the Defendant began notifying the Plaintiff and Class Members of the Data Breach. As a result of this delayed response, the Plaintiff and Class Members had no idea their PII had been compromised, and that they were, and continue to be, at significant risk of identity theft and various other forms of personal, social, and financial harm, including the sharing and detrimental use of their sensitive information. The risk will remain for their respective lifetimes, says the suit. The Plaintiff brings this action on behalf of all persons whose PII was compromised as a result of Defendant's failure to: (i) adequately protect the PII of Plaintiff and Class Members; (ii) warn Plaintiff and Class Members of Defendant's inadequate information security practices; and (iii) effectively secure hardware containing protected PII using reasonable and effective security procedures free of vulnerabilities and incidents. The Plaintiff is a citizen of Florida residing in Quincy, Florida. Independent Living is a health service company that develops, delivers, and manages community-based services.[BN] The Plaintiff is represented by: John A. Yanchunis, Esq. Ryan D. Maxey, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 E-mail: jyanchunis@ForThePeople.com rmaxey@ForThePeople.com INDEPENDENT LIVING: Geleng Files Suit in S.D. Florida ----------------------------------------------------- A class action lawsuit has been filed against Independent Living Systems, LLC. The case is styled as Melinda Geleng, on behalf of herself and all others similarly situated v. Independent Living Systems, LLC, Case No. 1:23-cv-21060-XXXX (S.D. Fla., March 17, 2023). The nature of suit is stated as Other P.I. for Personal Injury. Independent Living Systems -- https://ilshealth.com/ -- is a health service company that develops, delivers, and manages community-based services.[BN] The Plaintiff is represented by: Jonathan Betten Cohen, Esq. GREG COLEMAN LAW PC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Phone: (865) 247-0080 Fax: (865) 522-0049 Email: jcohen@milberg.com INDEPENDENT LIVING: Jensen Files Suit in S.D. Florida ----------------------------------------------------- A class action lawsuit has been filed against Independent Living Systems, LLC. The case is styled as Chelsea Jensen, on behalf of herself and all others similarly situated v. Independent Living Systems, LLC, Case No. 1:23-cv-21098-XXXX (S.D. Fla., March 21, 2023). The nature of suit is stated as Other Contract for Neglect of Duty. Independent Living Systems -- https://ilshealth.com/ -- offers a comprehensive range of turnkey payer services including clinical and third-party administrative services to managed care organizations and providers that serve high-cost, complex member populations in the Medicare, Medicaid and Dual-Eligible Market.[BN] The Plaintiff is represented by: Robert Baldwin Brown, III, Esq. 2811 SW 3rd Ave Miami, FL 33129 Phone: (305) 860-4445 Fax: (866) 353-5529 Email: bob@pennekamplaw.com INTUITIVE SURGICAL: Faces Three Antitrust Cases in California Court ------------------------------------------------------------------- Intuitive Surgical, Inc. disclosed in its Form 10-K report for the fiscal year ended December 31, 2022, filed with the Securities and Exchange Commission on February 10, 2023, that three class action complaints were filed against the company in the Northern District of California court alleging anti-trust allegations relating to the service and repair of certain instruments manufactured by the company. A complaint by Larkin Community Hospital was filed on May 20, 2021, a complaint by Franciscan Alliance, Inc. and King County Public Hospital District No. 1 was filed on July 6, 2021, and a complaint by Kaleida Health was filed on July 8, 2021. The court has consolidated the Franciscan Alliance, Inc. and King County Public Hospital District No. 1 and Kaleida Health cases with the Larkin Community Hospital case, which is now captioned on the Larkin docket as "In Re: da Vinci Surgical Robot Antitrust Litigation." A Consolidated Amended Class Action Complaint has been filed on behalf of each plaintiff named in the earlier-filed cases. On January 14, 2022, Kaleida Health voluntarily dismissed itself as a party to this case. On January 18, 2022, the company filed an answer against the plaintiffs in this matter, and discovery commenced. Intuitive Surgical, Inc. is into medical robotic products based in California. ISOLATOR FITNESS: Campbell Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Isolator Fitness, Inc. The case is styled as Jovan Campbell, on behalf of herself and all others similarly situated v. Isolator Fitness, Inc., Case No. 1:23-cv-02286 (S.D.N.Y., March 17, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Isolator Fitness, Inc. -- https://isolatorfitness.com/ -- offers quality meal prep bags, meal prep containers, and related accessories and also a complete line of supplements, lifting straps, and high protein pasta.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com KONINKLIJKE PHILIPS: Lowe Suit Removed to D. South Carolina ----------------------------------------------------------- The class action lawsuit captioned as JARED LOWE, individually, and as personal representative of the ESTATE OF JACKIE REUBEN LOWE, v. KONINKLIJKE PHILIPS N.V.; PHILIPS NORTH AMERICA LLC; PHILIPS HOLDING USA, INC.; and PHILIPS RS NORTH AMERICA LLC, Case No. 2023CP0100028, was removed from the South Carolina Court of Common Pleas for Abbeville County, to the United States District Court for the District of South Carolina. The District of South Carolina Court Clerk assigned Case No. 2:23-cv-00482-JFC to the proceeding. On February 8, 2023, Plaintiff Jared Lowe, individually and on behalf of the estate of Jackie Reuben Lowe filed a complaint in the Underlying Action. Koninklijke Philips is a Dutch multinational conglomerate corporation that was founded in Eindhoven in 1891. Since 1997, it has been mostly headquartered in Amsterdam, though the Benelux headquarters is still in Eindhoven.[BN] The Defendants are represented by: Daniel R. Fuerst, Esq. Joseph D. Thompson, III, Esq. HALL BOOTH SMITH, P.C. 111 Coleman Blvd, Suite 301 Mt. Pleasant, SC 29464 Telephone: (843) 720-3460 Facsimile: (843) 720-3458 E-mail: dfuerst@hallboothsmith.com jthompson@hallboothsmith.com LATHER INC: Lawal Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against Lather, Inc. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. Lather, Inc., Case No. 1:23-cv-02336 (S.D.N.Y., March 20, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Lather -- https://www.lather.com/ -- offers top quality, daily natural skincare and wellness products for the body, face, hair and home, selling online.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com LINDT & SPRUNGLI: Tettenhorst Sues Over Deceptive Labeling ---------------------------------------------------------- James Tettenhorst, individually and on behalf of all others similarly situated v. Lindt & Sprungli (USA), Inc., Case No. 1:23-cv-00194-JL (D.N.H., March 17, 2023), is brought seeking to remedy the deceptive and misleading business practices of the Defendant with respect to the marketing and sale of Defendant's Lindt dark chocolate products throughout the United States. Defendant's products include, without limitation, the following: Lindt Excellence Dark Chocolate 70% Cocoa and Lindt Excellence Dark Chocolate 85% Cocoa (hereinafter the "Products"). The Defendant fails to disclose on the Products' packaging and labeling the material fact that the Products contain lead and cadmium. Lead is a dangerous and harmful chemical when consumed, especially by pregnant women and children. Scientists agree that there is no level of lead that is safe. According to the Mayo Clinic, "lead poisoning occurs when lead builds up in the body, often over month or years. Even small amounts of lead can cause serious health problems. Children younger than 6 years are especially vulnerable to lead poisoning, which can severely affect mental and physical development. At very high levels, lead poisoning can be fatal." The Defendant's advertising and marketing campaign for the Products, including the packaging and labeling of the Products, is false, deceptive, and misleading because it does not disclose the high levels of lead and cadmium in the Products. The presence of high levels of lead and cadmium in food products is obviously material to reasonable consumers because these chemicals, even in small dosages, pose serious health risks. Additionally, the lead and cadmium levels in the Products could not be known by consumers before purchasing them and may not be determined without extensive and expensive scientific testing. Accordingly, consumers rely on Defendant to be truthful regarding the ingredients, including the existence of lead and cadmium, in the Products. The Defendant, however, must have known of the existence of lead and cadmium in the Products. Defendant sources the ingredients and manufactures the Products and has exclusive knowledge of the quality control testing on the Products and the ingredients contained therein. The Plaintiff and those similarly situated would never have purchased the Products had they known that the Products contained high levels of lead and cadmium. The Plaintiff and Class Members paid a premium for the Products based upon the Defendant's marketing and advertising campaign, particularly insofar as they understood based on Defendant's misrepresentations and omissions that they were purchasing products without lead and cadmium when, in reality the Products contained high levels of lead and cadmium. Given that the Plaintiff and Class Members overpaid for the Products based on Defendant's misrepresentations and omissions, Plaintiff and Class Members suffered an injury in the amount of the premium paid, i.e. the difference in value between the products represented--dark chocolate without lead and cadmium--and the Products delivered--dark chocolate with lead and cadmium, says the complaint. The Plaintiff purchased and consumed the Products multiple times during the Class Period in Illinois and in Nevada. The Defendant sells chocolate products.[BN] The Plaintiff is represented by: Roger Phillips, Esq. PHILLIPS LAW OFFICE 104 Pleasant Street Concord NH 03301 Phone: (603) 225-2767 Fax: (603) 226-3581 Email: roger@phillipslawoffice.com - and - Edward F. Haber, Esq. Michelle H. Blauner, Esq. Ian J. McLoughlin, Esq. Patrick J. Vallely, Esq. Nicole E. Dill, Esq. SHAPIRO HABER & URMY LLP One Boston Place, Suite 2600 Boston, Massachusetts 02108 Phone: (617) 439-3939 Facsimile: (617) 439-0134 Email: ehaber@shulaw.com mblauner@shulaw.com imcloughlin@shulaw.com pvallely@shulaw.com ndill@shulaw.com - and - Jeffrey Gavenman, Esq. Jeremy Schulman, Esq. SCHULMAN BHATTACHARYA, LLC 6116 Executive Boulevard, Suite 425 North Bethesda, MD 20852 Phone: (240) 356-8550 Email: jgavenman@schulmanbh.com jschulman@schulmanbh.com LOTTERY.COM INC: Million & Hoffman Securities Suits Consolidated ---------------------------------------------------------------- Judge Jennifer L. Rochon of the U.S. District Court for the Southern District of New York grants the motion to consolidate the cases styled PRESTON MILLION, et al., Plaintiffs v. LOTTERY.COM INC., formerly known as TRIDENT ACQUISITIONS CORP., et al., Defendants; and HAROLD M. HOFFMAN, Plaintiff v. LOTTERY.COM, INC., formerly known as TRIDENT ACQUISITIONS CORP., et al., Defendants, Case Nos. 1:22-cv-07111 (JLR), 1:22-cv-10764 (JLR) (S.D.N.Y.). The Court received the letter-motion from Defendants Lottery.com, Inc., Matthew Clemenson, and Ryan Dickinson requesting that the Hoffman action be consolidated with the Million action pursuant to Federal Rule of Civil Procedure 42(a). On Aug. 19, 2022, Million filed a complaint in this District on behalf of himself and all others similarly situated, alleging the Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b), 78t(a), as amended by the Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. Section 78u-4 et seq. Pursuant to the PSLRA, on Nov. 18, 2022, the Court appointed RTD Bros LLC, Todd Benn, Tom Benn, and Tomasz Rzedzian as the Lead Plaintiffs, and Glancy Prongay & Murray LLP as the Lead Counsel. On Dec. 5, 2022, the Court ordered the Plaintiffs to file their Amended Complaint no later than Jan. 21, 2023. The Plaintiffs complied with that Order, amending their complaint to, among other things, add Kathryn Lever, Marat Rosenberg, Vadim Komissarov, Thomas Gallagher, Gennadii Butkevych, and Ilya Ponomarev as Individual Defendants. The Plaintiffs allege generally that, after Defendant Lottery.com's predecessor Trident Acquisitions Corp. ("TDAC") entered into a "Business Combination Agreement" with AutoLotto, Inc., pursuant to which Lottery.com would become a publicly traded company, the Defendants issued several public filings that contained materially misleading information about the financial state of Lottery.com. They claim that the Defendants misrepresented and omitted material facts about Lottery.com's financial and operational health. In reality, Lottery.com was non-compliant with legal and accounting controls, had significant issues with its financial statements, and had insufficient financial resources to operate without furloughing employees. The disclosure of this information caused Lottery.com's stock price to fall in July 2022. The Amended Complaint asserts claims on behalf of persons who invested in Lottery.com's stock from Nov. 19, 2020 through July 29, 2022. On Dec. 21, 2022, prior to the filing of the Amended Complaint, but after the original complaint was filed, pro se Plaintiff Hoffman filed the instant action. That day, he also filed a "Statement of Relatedness," indicating that his claims were related to the Million action. Hoffman asserts claims against the Defendants for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b), 78t(a). While his complaint does not allege these claims on behalf of a class of investors, he individually purchased 20,000 Lottery.com shares on Nov. 22, 2021. He further alleges that, after the "Business Combination," the Defendants made a series of misleading statements to the public. Hoffman alleges that the truth was "revealed" in July 2022. On Jan. 4, 2023, the Court set an Initial Pretrial Conference in the Hoffman action for March 22, 2023. On March 2, 2023, the Defendants moved for consolidation of the Hoffman action with the Million action, and requested the Initial Pretrial Conference be adjourned without date. They argue that the claims in this action and the Million action are substantially identical, that consolidation will therefore permit the efficient coordination and sequencing of any motions to dismiss, and if necessary, discovery, class procedures and trial, and that there is no prejudice to either party because discovery in both cases is automatically stayed under the PSLRA. On March 7, 2023, Hoffman filed a letter in opposition, arguing that consolidation is "inappropriate at this time" because he has not amended his complaint in accordance with the Amended Complaint in Million, and because discovery in this action will be more truncated than in a case involving class allegations. That same day, the Defendants filed a letter in reply. Hoffman filed a further letter response on March 8, 2023. Judge Rochon concludes that consolidation of the Hoffman action with the Million action is warranted because both actions involve substantially identical questions of law and fact. Specifically, both complaints allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b), 78t(a), and therefore are also subject to the PSLRA. Both complaints are brought on behalf of persons who purchased Lottery.com stock. Both complaints seek remedies against Lottery.com and several of its senior investors. While the Million action does involve claims against additional "TDAC Defendants," the substance of the allegations against the Defendants in the Hoffman action is otherwise largely identical to the class allegations. Indeed, both complaints allege the same wrongdoing, the same misstatements, and the same relief. Put simply, they allege the same fraudulent scheme by the Defendants. Accordingly, Judge Rochon exercises her discretion to consolidate Hoffman with Million. Unless otherwise ordered by the Court, future filings in the consolidated case will be filed and docketed only under docket number 22-cv-07111 (JLR). The actions will be referred to collectively as In re Lottery.com, Inc. Securities Litigation, Case No. 1:22-cv-07111 (JLR). Every pleading filed in the consolidated action under 22-cv-07111 (JLR) will bear the following caption: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE LOTTERY.COM, INC. SECURITIES Case No. 1:22-cv-07111 (JLR) LITIGATION The Initial Pretrial Conference scheduled for March 22, 2023 is adjourned without date. The Defendants' deadline to respond to Hoffman's complaint is extended to April 3, 2023. The parties will otherwise comply with the briefing schedule set forth at 22-cv-07111, ECF No. 60. A full-text copy of the Court's March 10, 2023 Order is available at https://tinyurl.com/mpbn8sma from Leagle.com. LOUISVILLE METRO: $1.5MM Accord in Lott Suit Has Interim OK ----------------------------------------------------------- In the case captioned as TYROME LOTT, Plaintiff, v. LOUISVILLE METRO GOVERNMENT, et al., Defendants, Civil Action No. 3:19-CV-271-RGJ, (W.D. Ky.), Judge Rebecca Grady Jennings of the U.S. District Court for the Western District of Kentucky grants the joint motion for preliminary settlement approval filed by the Plaintiff Tyrome Lott and the defendants Louisville-Jefferson County Metro Government, Steve Conrad, Erika Shields in her official capacity as Chief of Louisville Metro Police Department, and Vanessa Burns individually and in her official capacity as Secretary of Public Works as Assets for Metro Government. The Total Settlement Amount consists of $1.5 million, which the Defendants will fund. The Court finds and orders as follows: (1) Class Members. On March 17, 2021, this Court certified, under Federal Rule of Civil Procedure 23, the following class: All persons with vehicles registered to them whose vehicles were assessed a storage fee in excess of $10 for each of the first seven days a vehicle was in storage, plus a $5.00 fee per day for each additional day thereafter that a vehicle remained in storage since on or about February 2, 2008. (2) Class Representatives and Class Counsel. On March 17, 2021, the Court appointed a Class Representative and the law firms of Hurt, Deckard & May as Class Counsel. (3) Nullification. This Order will be void and of no force or effect if the Agreement is not finally approved by the Court or if the Agreement, after being finally approved by the Court, is invalidated on appeal or terminated pursuant to its own terms. (4) Preliminary Approval. The settlement set forth in the Agreement between the Parties is preliminarily approved as fair, reasonable, adequate, within the range of possible approval, and in the best interests of the Rule 23 class, subject to a hearing for final approval. The Court further preliminarily finds that the settlement provided for in the Agreement represents a fair, reasonable, and adequate settlement to the Rule 23 class as a whole. The proposed Agreement is sufficient to justify the issuance of notice of the settlement to the Rule 23 class. (5) Class Notice. The Notice of Pendency of Class Action is approved. The Court orders that Defendant provide the Class Counsel with a list, in electronic form, of the Rule 23 settlement class members, including each individual's last known address, within three business days after the entry date of this Order. The Court orders that the Class Counsel mail the Notice Materials via first-class mail to the Rule 23 settlement class members within fourteen days after Defendants produce such list with addresses. Any member of the Rule 23 settlement class who wishes to opt out of the class must do so by properly completing the Request for Exclusion and mailing it to the Class Counsel. The Request for Exclusion must be received by the Class Counsel within 45 calendar days after the date on which Class Counsel mails the Notice to class members. All of the Rule 23 class members who do not timely and properly exclude themselves from the class will be bound conclusively by all terms of the Agreement, if finally approved, and by any judgment entered upon final approval. (6) Fairness Hearing. The Court will conduct a Fairness Hearing regarding the proposed settlement on July 19, 2023, at 11:00 a.m. at the U.S. Courthouse, 601 W. Broadway, Louisville, KY, 40202. Any Rule 23 class member who wishes to object to the Agreement will be heard at that time. Objections must be made in writing by mailing such objections to the Class Counsel and must be received by the Class Counsel within 45 days after the date on which the Class Counsel mails the Notice to Rule 23 class members. Each objection must include the objector's name, address, telephone number, signature, and social security number. Each objecting Rule 23 class member must state the reasons for objection to the Agreement. If the objecting Rule 23 class member wishes to speak at the hearing, the written objection must state so and specifically identify all witnesses and materials that the objecting Rule 23 class member will present at the hearing. Any objecting Rule 23 class member who fails to properly or timely provide his or her objection to Class Counsel will not be heard during the Fairness Hearing and such objection will not be considered by the Court. Class Counsel will file objections with the Court and provide them to Counsel for Defendant as set forth in the Agreement. (7) Order for Settlement Purposes. The findings and rulings in this Order are made for the purposes of settlement only and may not be cited or otherwise used to support the certification of any contested class or subclass in this action or any other action. (8) Enhancement Payment, Net Settlement Amount, and Attorney's Fees and Awards. The submissions of the Parties in support of the settlement, including Plaintiff's Counsels' application for Attorneys' Fees, additional briefing supporting the Class Representative Enhancement Payment, and clarification on how the Parties expect to handle the Net Settlement Amount, will be filed with the Court no later than 35 days before the Fairness Hearing and may be supplemented up to 7 days before the Fairness Hearing. (9) The following are remanded pending the Court's approval of the settlement in this matter and will be reinstated only if the settlement is not approved: -- Final Pretrial Conference, July 18, 2023 -- Jury Trial, August 14, 2023 A full-text copy of the Memorandum Opinion and Order dated March 17, 2023, is available at https://tinyurl.com/2bebrcjt from Leagle.com. M.A. SILVA: Plaintiffs Loses Bid to File Docs Under Seal -------------------------------------------------------- In the class action lawsuit captioned as M.A. SILVA CORKS USA, LLC, et al., v. M.A. SILVA HOLDINGS, INC., et al., Case No. 4:22-cv-04345-HSG (N.D. Cal.), the Hon. Judge Haywood S. Gilliam, Jr. entered an order denying the Plaintiffs' administrative motion to file under seal, and directing the Plaintiffs to file public versions of all documents for which the proposed sealing has been denied within seven days of the order. Here, the Plaintiffs seek to file under seal portions of their initial and first amended complaints. Because the complaint is the pleading on which this action is based, the Court applies the "compelling reasons" standard to these motions. As to the Plaintiffs' motions to seal portions of the initial complaint, the Court did not rely on that pleading because the Plaintiffs filed an amended complaint before the Defendants answered. The Plaintiffs argue that they seek to seal "highly-sensitive allegations about the Defendants' business conduct, sales practices, and competitive positions against the the Plaintiffs." Specifically, these allegations contain "the exact methods the Defendants have undertaken to undermine [the company's] value." A copy of the Court's order dated March 10, 2023 is available from PacerMonitor.com at https://bit.ly/3TCSdc0 at no extra charge.[CC] MADEWELL INC: Faces Miller Suit Over Incorrect Sales Tax Rates -------------------------------------------------------------- In the class action complaint, Lohren Miller, individually and on behalf of all others similarly situated v. Madewell, Inc., Case No. 1:23-cv-02402 (S.D.N.Y., March 21, 2023), Miller alleges that Madewell, Inc. has violated the Missouri Merchandising Practices Act by charging a higher tax rate than the correct applicable use tax rate on sales of products through remote sales channels, including an Internet website. On Oct. 25, 2022, Miller purchased The Mira Side-Seam Ankle Boot from Madewell's website, www.madewell.com, for personal, family or household use for delivery to 5928 Northeast Ruby Lane, Lee's Summit, MO. According to the Missouri Department of Revenue, the applicable use tax rate for sales of products through remote sales channels that are shipped by Miller from an out-of-state facility for delivery to the said address is 4.225 percent. However, when Miller purchased the shoes, Madewell required Miller to pay a 7.476 percent tax rate, resulting in the over-collection of monies, says the suit. Madewell, Inc. is a Delaware corporation and has its principal place of business at 225 Liberty St., New York, NY. Defendant conducts, and at all relevant times, has conducted business in Missouri through remote sales channels, including making sales through its internet website. [BN] The Plaintiff is represented by: Yitzchak Kopel, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: ykopel@bursor.com MARRIOTT INT'L: $153K in Attorneys' Fees & Costs Awarded in Ramirez ------------------------------------------------------------------- In the case, HUMBERTO RAMIREZ, Plaintiff v. MARRIOTT INTERNATIONAL., et al., Defendants, Case No. 20-CV-02397 (PMH) (S.D.N.Y.), Judge Philip M. Halpern of the U.S. District Court for the Southern District of New York grants in part the Plaintiffs' counsel's request for attorneys' fees and costs. Ramirez, individually and on behalf of all others similarly situated, commenced the putative class and collective action against Defendants Marriott International, Inc. and The Ritz-Carlton Hotel Co., LLC on March 18, 2020. The First Amended Complaint was filed on April 17, 2020 and the Second Amended Complaint was filed on July 9, 2020. Opt-in Plaintiff Michael Boateng joined the action on May 25, 2021. The Plaintiffs alleged, inter alia, that the Defendants engaged in a practice of retaining proceeds from service and delivery fees charged to in-room dining customers in violation of the Fair Labor Standards Act and New York Labor Law Section 196-d. The Defendants operate a chain of hotels, restaurants, and resorts throughout the United States. Their operations include the Ritz-Carlton, Westchester ("RCW"), located in White Plains, New York. Ramirez was employed by the Defendants as an in-room dining server at RCW from 2015 through November 2019. He received an hourly wage of $8.40, worked more than 40 hours every week, and alleged that he was underpaid therefor. Boateng pressed similar claims. On Nov. 2, 2022, the Court approved the Settlement Agreement, except to the extent it relates to attorneys' fees and costs, as fair and reasonable. The parties settled the Plaintiffs' claims -- with Court approval in accordance with Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015) and its progeny -- for $445,000. The single issue standing in the way of distributing the settlement to the Settlement Class is the amount of the attorneys' fees sought by the Plaintiffs' counsel. Between Feb. 21, 2020, and Aug. 26, 2022 (i.e., from the counsel's first encounter with the Plaintiffs through the filing of the request to approve fees), the counsel billed approximately 897.45 hours. Forty-one different timekeepers were staffed on the matter to complete these tasks. The counsel proposes the following hourly rates for the time billed: $1,105 for partners, $680 to $995 for counsel and associates, and $250 to $500 for non-attorney staff. The counsel claims a lodestar value of $650,928 for their work performed and seeks $295,000 in reimbursement for fees and costs. The attorneys' fees and costs sought represents approximately 66.3% of the settlement. The parties settled this wage and hour case for a total amount of $445,000. The Plaintiff's counsel seeks an award of $295,000 in fees and costs. The Plaintiffs' counsel nevertheless urges that their requested award is warranted based on the counsel's contemporaneous time records, documenting the hours expended and the nature of work performed, as well as information regarding counsel's experience and practice. Judge Halpern disagrees. He opines that a $295,000 attorneys' fees and costs recovery is simply unreasonable in the straightforward case. He, accordingly, awards the Plaintiffs' counsel a reasonable fee in accordance with the lodestar adjustments. The Plaintiffs' counsel asserts a lodestar value of $650,928, a product of 897.45 hours billed by 41 different timekeepers, which represents simply too many timekeepers spending too much time on a straightforward matter. According to Judge Halpern the hourly rates are well above any reasonable rates charged by attorneys in this type of case in the Southern District of New York. He therefore adjusts this lodestar figure considering the contemporaneous time records submitted by the Plaintiffs. In his discretion, Judge Halpern applies the upper end of the attorney hourly range ($500) to the hours billed by partners, the lower end of the attorney range ($300) to the hours billed by counsel and associates, and the prevailing $100 per hour rate to all hours billed by non-attorney staff. The eight hours billed by partners accordingly yields a $4,000 contribution to the adjusted lodestar, the 754.1 hours billed by counsel and associates yields $226,230, and the 135.35 hours billed by non-attorney staff yields $13,535. The Plaintiffs' counsel's lodestar after adjustment to prevailing hourly rates in this District is, accordingly, $243,765. Judge Halpern is also simply unable to fathom how it could be prudent to staff 41 timekeepers for the litigation. Such a decision is indefensibly excessive and unreasonable. The Plaintiffs' counsel, recognizing this absurdity, offered to discount the time billed for all Of Counsel/Associates, Law Clerks/Paralegals, and Clerical Staff who billed less than 10 hours." Doing so at prevailing rates in the District would reduce the lodestar by 28.6 counsel/associate hours (equating to an $8,580 deduction) and 57.5 non-attorney staff hours (equating to a $5,750 deduction). The adjusted lodestar after these deductions amounts to $229,435. This also reduces the number of timekeepers from 41 to 13. Even still, a further reduction is required to make this fee application reasonable. The second issue with respect to the counsel's time records is that they reflect significant overlap in tasks. According to Judge Halpern this is an obvious and unavoidable consequence of the overstaffing. The Court, to account for this duplication, has discretion to apply an across-the-board reduction to the hours expended. A further reduction for duplicative hours is therefore warranted. A review of the Plaintiffs' counsel's time records reveals occasional, albeit not pervasive, resort to "block billing." Without calling out specific attorneys, Judge Halpern finds that it is sufficient to note that various timekeepers would attribute large blocks of time -- ranging up to 11.5 hours -- to individual tasks such as "drafting," "reviewing," or "researching." Hence, a further reduction for vague entries and block billing is required. The Plaintiffs' counsel spent 897.45 hours on the matter, which Judge Halpern finds to be unreasonable in and of itself. He says the fee applications granted in comparable litigation, and the Court's own 40 years of litigation experience, a 40% reduction of the Plaintiff's counsel's hours is reasonable. A 40% reduction of the adjusted lodestar brings the reasonable value of the Plaintiffs' counsel's work prior to Aug. 27, 2022 to $137,661. Judge Halpern finds that this amount is a reasonable fee to award to the Plaintiffs' counsel. Lastly, Judge Halpern has reviewed the Plaintiffs' counsel's request for the reimbursement of costs spent in the litigation and finds that it is reasonable. The counsel seeks reimbursement for $15,652.47 in various costs, the largest of which include amounts paid for deposition transcripts. For these reasons, Judge Halpern grants in part the Plaintiffs' request for attorneys' fees and costs. The Plaintiffs' counsel is awarded $137,661 in attorneys' fees along with $15,652.47 in costs for a total recovery of $153,313.47. The Clerk of the Court is respectfully directed to close the case. A full-text copy of the Court's March 10, 2023 Opinion & Order is available at https://tinyurl.com/n4ukm2aj from Leagle.com. MARTEN TRANSPORT: Court Narrows Linman's Claims in Data Theft Suit ------------------------------------------------------------------ Judge James D. Peterson of the U.S. District Court for the Western District of Wisconsin grants in part the motion to dismiss filed by Marten Transport, Ltd. in the case captioned as SCOTT LINMAN, on behalf of himself and all others similarly situated, Plaintiff, v. MARTEN TRANSPORT, LTD, Defendant, Case No. 22-cv-204-jdp, (W.D. Wis.). Plaintiff Scott Linman applied for a position with defendant Marten Transport, Ltd. in 2018. As part of his job application, Linman was required to provide Marten with his name, address, date of birth, social security number, as well as his "financial information." Linman ultimately declined a job offer from Marten, but Marten continued to store Linman's information on its servers. About three years later in fall 2021, a group of hackers gained access to Marten's servers. In March 2022, Marten notified Linman that his personal information had been "improperly accessed and/or obtained by unauthorized third parties." The notice stated that Linman's social security number was "compromised" as a result of the breach. Moreover, Linman has spent about two hours on activities meant to mitigate the risk of identity theft, including reviewing his credit report and signing up for credit monitoring service. Linman alleges that, as a result of the breach, his debit card information was accessed and used by unauthorized third parties in March 2022. This proposed class action is about a data breach. Linman seeks to represent a nationwide class composed of "all United States residents whose [personally identifiable information] was or could have been accessed" during the breach. Linman alleges that the class has suffered harms including actual identity theft, time spent mitigating the risk of identity theft, and credit monitoring expenses. The Court concludes that Linman's time spent mitigating the risk of identity theft is a concrete harm that gives him standing to sue for damages related to the breach, so the Court need not consider whether the other alleged injuries are sufficient. In its Motion to Dismiss, Marten contends that Linman does not have standing to seek injunctive relief because none of the injunctive relief Linman seeks would reduce the risk of identity theft. Nearly all of Linman's requested injunctive relief is about how Marten will handle its data in the future: he seeks to order Marten to, among other things, prohibit Marten from maintaining his personal information on a cloud-based database; engage in periodic security audits; improve security training; and monitor the traffic to and from its servers. Linman did not respond to this argument. As such, Linman has conceded that he does not have standing to seek injunctive relief. The Court will dismiss Linman's requests for injunctive relief for lack of standing. In addition, Linman asserts state-law claims for negligence, breach of implied contract, invasion of privacy, "breach of confidence," and unjust enrichment. Marten moves to dismiss all of Linman's claims for failure to state a claim. Linman does not identify which state's law he is suing under. The Court determines that Marten has alleged an injury in fact, so Linman's allegations are sufficient to state a claim for negligence. The Court concludes that Linman's breach of implied contract claim will be dismissed. Linman suggests that a company's privacy policy, standing alone, creates an implied contract to protect personal information -- but he cites no cases acknowledging a contractual relationship between applicants and potential employers. Likewise, the Court determines that Linman failed to state an unjust enrichment claim because he identifies no benefit that his personal information provided Marten -- there is no allegation that Marten realized a monetary benefit from Linman's data. Linman also claim for "intrusion upon seclusion." But the Court finds that "Linman hasn't stated a claim for intrusion upon seclusion for one simple reason: it was the hackers, not Marten, that intruded on Linman's privacy. Linman provided his personal information to Marten willingly, so it didn't intrude on his privacy by collecting it. The only "intrusion" was the alleged breach by the hackers." Accordingly, the Court grants Marten's motion to dismiss in part -- Linman's claims for injunctive relief, breach of contract, unjust enrichment, invasion of privacy, and breach of confidence are dismissed for failure to state a claim. But the motion is denied as to Linman's negligence claim. A full-text copy of the Opinion and Order dated March 17, 2023, is available at https://tinyurl.com/3xtry4f2 from Leagle.com. MAXAR TECHNOLOGIES: Respler Sues Over Misleading Proxy Statement ---------------------------------------------------------------- RESPLER & TEITELBAUM MD PC PSP, v. MAXAR TECHNOLOGIES INC., HOWELL M. ESTES, III, NICK S. CYPRUS, ROXANNE J. DECYK, JOANNE O. ISHAM, DANIEL L. JABLONSKY, C. ROBERT KEHLER, GILMAN LOUIE, L. ROGER MASON, JR., HEATHER A. WILSON, ERIC J. ZAHLER, and EDDY ZERVIGON, Case No. 1:23-cv-02362 (S.D.N.Y., Mar. 20, 2023) is a securities class action against Maxar Technologies Inc. and the members of Maxar Technologies' Board of Directors for their violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, and U.S. Securities and Exchange Commission ("SEC"), arising out of their attempt to sell the Company to funds advised by Advent International Corporation through their affiliates Galileo Parent, Inc. ("Parent") and Galileo Bidco, Inc. ("Merger Sub"). On December 16, 2022, Maxar Technologies announced that it had entered into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which, each Maxar Technologies stockholder will receive $53.00 in cash for each share of Maxar Technologies common stock they own. According to the complaint, on March 16, 2023, Maxar Technologies filed the materially misleading and incomplete Proxy with the SEC. Designed to convince Maxar Technologies' stockholders to vote in favor of the Proposed Transaction, the Proxy is rendered misleading by the omission of critical information concerning: Maxar Technologies' financial projections and the financial analyses performed by the Company's financial advisor J.P. Morgan Securities LLC (JPM). With respect to JPM's Discounted Cash Flow Analysis, the Proxy Statement fails to disclose: (i) the inputs and assumptions underlying the discount rates of 9.0% to 11.0%; (ii) the terminal values; (iii) Maxar's net debt; (iv) the value of certain tax credits expected to be utilized by Maxar through fiscal year 2027 and beyond; and (v) the fully diluted capitalization of Maxar. The Plaintiff seeks to enjoin the Defendants from conducting the stockholder vote on the Proposed Transaction unless and until the material information is disclosed to the holders of the Company common stock, or, in the event the Proposed Transaction is consummated, to recover damages resulting from the Defendants' violations of the Exchange Act. The Plaintiff is, and has been at all times, a continuous stockholder of Maxar Technologies. Maxar is a provider of comprehensive space solutions and secure, precise, geospatial intelligence.[BN] The Plaintiff is represented by: Michael Rogovin, Esq. WEISS LAW 476 Hardendorf Ave. NE Atlanta, GA 30307 Telephone: (404) 692-7910 Facsimile: (212) 682-3010 E-mail: mrogovin@weisslawllp.com - and - Michael McKay, Esq. MCKAY LAW 5635 N. Scottsdale Road, Suite 170 Scottsdale, AZ 85250 Telephone: (480) 681-7000 Facsimile: (480) 348-3999 E-mail: mmckay@mckaylaw.us MEADOWBROOK FINANCIAL: Court Refuses to Dismiss Jackson TCPA Suit ----------------------------------------------------------------- Judge Matthew W. Brann of the U.S. District Court for the Middle District of Pennsylvania denies Meadowbrook's motion to dismiss the case, GERARD JACKSON, individually and on behalf of all others similarly situated, Plaintiff v. MEADOWBROOK FINANCIAL MORTGAGE BANKERS CORP., Defendant, Case No. 4:22-CV-01659 (M.D. Pa.). After receiving three unsolicited and unwanted telemarketing calls from the same company in the same day, Jackson sued the allegedly offending telemarketer -- Meadowbrook -- asserting violations of the Telephone Consumer Protection Act of 1991. Jackson brings the case, a putative class action, on behalf of himself and all similarly situated individuals. Although Jackson has yet to seek discovery or class certification, Meadowbrook has moved to dismiss the case, challenging the legality of Jackson's proposed class definition, and arguing that Jackson doesn't have sufficient information to support a class action. Jackson's telephone number has long been listed on the National Do Not Call Registry, a list consumers can voluntarily join to stop receiving telephone solicitations. Nevertheless, Meadowbrook -- a supplier of reverse mortgage services that makes telemarketing calls to generate leads -- placed three separate telemarketing calls to Jackson on Oct. 6, 2022. All three calls followed a similar script. The callers asked Jackson if he was interested in a reverse mortgage and then explained that they were representatives of Meadowbrook seeking to sell the company's reverse mortgage services. Jackson told all three callers that he did not want to receive any more calls. According to Jackson, he neither requested nor consented to these calls. Indeed, prior to Oct. 6, 2022, Jackson's attorney had sent Meadowbrook what amounted to a cease-and-desist letter, claiming that prior calls from Meadowbrook to Jackson violated the TCPA and asking Meadowbrook to stop calling him. Later that month, Jackson sued Meadowbrook, alleging violations of the TCPA. He initiated the claim on behalf of himself and all similarly situated individuals. Jackson defines the class of persons he proposes to represent as follows: All persons in the United States whose (1) telephone numbers were on the National Do Not Call Registry for at least 31 days, (2) but who received more than one telemarketing calls from or on behalf of Defendant (3) within a 12-month period, (4) from four years prior the filing of the Complaint. In his Complaint, Jackson also details the questions of law and fact he considers "common" to him and the proposed class. In November 2022, Meadowbrook filed the instant motion challenging the sufficiency of the class allegations and therefore asking the Court to dismiss the Complaint. Although Meadowbrook styles its motion as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), it is, properly understood, a motion to strike the class allegations under Rule 12(f). That motion has been fully briefed. Meadowbrook argues that the class allegations should be stricken for two reasons: (a) the proposed class constitutes an impermissible "fail-safe class"; and (b) the facts alleged do not satisfy the class action requirements under Federal Rule of Civil Procedure 23. Judge Brann opines that neither argument justifies the relief Meadowbrook requests. The former is without merit, whereas the latter, while potentially meritorious, is premature. Judge Brann explains that class action lawsuits, as with most things in life, typically unfold according to a standard procedure. First, an allegedly representative plaintiff files a complaint. The parties then engage in discovery relevant to the class determination. After that, the plaintiff moves for class certification. And then the court, engaging in the required rigorous analysis, rules on the propriety of the proposed class. With its motion to dismiss, Meadowbrook seeks to circumvent that standard procedure and slip through the backdoor. But there is a reason why the standard procedure is standard. Because Meadowbrook's proffered bases for dismissal are either meritless or premature, Judge Brann denies the motion. An appropriate Order follows. A full-text copy of the Court's March 10, 2023 Memorandum Opinion is available at https://tinyurl.com/3n8xdxcx from Leagle.com. MENARD INC: Request for Fees in Rebate Suit Denied -------------------------------------------------- In the case captioned as BARRY EARLS, THOMAS FETSCH, DAVID KIEL, TRENT SHORES, STEVE SCHUSSLER, CASSIE LIETAERT, and CHRIS JESSE, individually and on behalf of classes of similarly situated individuals, Plaintiffs, v. MENARD, INC., and JOHN DOES 1-10, Defendants, Case No. 20-cv-107-jdp, (W.D. Wis.), Judge James D. Peterson of the U.S. District Court for the Western District of Wisconsin grants the Plaintiffs' motion for reconsideration and denies Menards' fee petition. This case concerned the Menards "11% Off Everything" rebate promotion, which Menards runs several times each year. The promotion typically offers a rebate in the amount of 11% of the customer's total purchase. The Plaintiffs filed this proposed class action in February 2020, with each named plaintiff alleging that he or she (1) made a purchase at Menards during a rebate promotion; (2) applied to Menards by mail for a rebate; and (3) either never received a rebate or received a rebate for less than the amount due. Menards deposed some of the named Plaintiffs in early 2021. Menards walked each Plaintiff through rebate records that Menards had produced in discovery to show that the Plaintiff had received the rebates they were entitled to under the terms of the promotion. In March 2021, more than a year after the lawsuit was filed, the Plaintiffs moved to voluntarily dismiss their claims with prejudice -- after the Plaintiffs' counsel learned that the named Plaintiffs had received all rebates they were entitled to under the terms of the promotion. Consequently, Menards sought to recover all fees it had incurred litigating the case, contending the Plaintiffs' counsel knew, or should have known, that Plaintiffs' claims were baseless. The Court concluded that sanctions were appropriate because much of the information counsel needed to disprove the Plaintiffs' allegations was readily available and within the Plaintiffs' own knowledge. The Court ordered the Plaintiffs to pay Menards' reasonable costs incurred after Nov. 25, 2020, the day the Plaintiffs responded to Menards' interrogatories, because "failing to learn basic facts about Plaintiffs' own conduct after being served with pointed interrogatories" about the Plaintiffs' purchases and rebate amounts demonstrated willful ignorance. Menards submitted a fee petition seeking $989,671 for about four months of litigation expenses. On the other hand, the Plaintiffs ask the Court to reconsider its decision to impose sanctions. The Plaintiffs contend the Court misunderstood (1) counsel's efforts to investigate the Plaintiffs' claims and (2) what information was available to the Plaintiffs and counsel. The Plaintiffs' counsel has now clarified the steps they took to verify their claims, and they have adequately explained why it was difficult to determine the Plaintiffs' rebate amounts sooner. The Court finds that "Plaintiffs' counsel has adequately explained why they did not dismiss the claim earlier than they did. . . counsel states that determining the amounts owed was difficult because the rebates were not itemized, Plaintiffs had made a significant number of purchases, and Plaintiffs no longer had all of the receipts in their possession." The Court is persuaded that counsel's efforts, including interviews with the Plaintiffs and a review of the documents in Plaintiffs' possession, were not so inadequate that they were reckless. Counsel's decision to continue litigating the case until they were presented with clear evidence that the Plaintiffs had received their rebates did not demonstrate a serious and studied disregard for the orderly process of justice. The Court concludes that sanctions under Section 1927 are not warranted and that reconsideration of its order imposing sanctions is appropriate. Menards' fee petition is denied as moot. A full-text copy of the Opinion and Order dated March 17, 2023, is available at https://tinyurl.com/ys8yuhys from Leagle.com. MICHAEL CARTWRIGHT: IPRS Seeks Reconsideration of Feb. 24 Order --------------------------------------------------------------- In the class action lawsuit captioned as INDIANA PUBLIC RETIREMENT SYSTEM, Individually and on Behalf of All Others Similarly Situated, v. MICHAEL T. CARTWRIGHT, KIRK R. MANZ and ANDREW W. McWILLIAMS, Case No. 3:19-cv-00407 (M.D. Tenn.), the Class Representative Indiana Public Retirement System asks the Court to enter an order reconsidering its February 24, 2023 Memorandum Opinion and Order granting in part and denying in part the Plaintiff's motion for class certification. The Plaintiff further requests that the Court vacate the deadlines concerning notice to the Class set forth in the Court's March 2, 2023 Order until such time as this Motion is resolved. Indiana Public Retirement System is a U.S.-based pension fund responsible for the pension assets for public employees in the state of Indiana. A copy of the Plaintiff's motion dated March 10, 2023 is available from PacerMonitor.com at https://bit.ly/3mVPZIf at no extra charge.[CC] The Plaintiff is represented by: Christopher M. Wood, Esq. Christopher H. Lyons, Esq. Henry S. Bator, Esq. Darren J. Robbins, Esq. Christopher D. Stewart, Esq. Francisco J. Mejia, Esq. Jack Abbey Gephart, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: (615) 244-2203 Facsimile: (615) 252-3798 E-mail: cwood@rgrdlaw.com clyons@rgrdlaw.com hbator@rgrdlaw.com darrenr@rgrdlaw.com cstewart@rgrdlaw.com fmejia@rgrdlaw.com jgephart@rgrdlaw.com - and - Jerry E. Martin, Esq. BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza, 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: (615) 244-2202 Facsimile: (615) 252-3798 E-mail: jmartin@barrettjohnston.com MICHIGAN: No Class Status for Inmates' COVID-19 Suit ---------------------------------------------------- In the case captioned as John Allen Alexander, et al., Plaintiffs, v. Gretchen Whitmer, et al., Defendants, Case No. 2:23-cv-6, (W.D. Mich.), Magistrate Judge Maarten Vermaat of the U.S. District Court for the Western District of Michigan dismisses the Plaintiffs' complaint for failure to state a claim and denies the Plaintiffs' motion for class action certification. The Plaintiffs are presently incarcerated with the Michigan Department of Corrections at the Kinross Correctional Facility in Kincheloe, Chippewa County, Michigan. The Plaintiffs sue Governor Gretchen Whitmer and MDOC Director Heidi E. Washington. The Plaintiffs sue the Defendants in their official and personal capacities. The Plaintiffs are both serving life sentences. Their allegations are scant but focus on the COVID-19 pandemic. The Plaintiffs claim that inmates are "too close together to do anything." They stated that 80 men share 3 showers, 7 sinks, and 4 toilets. The Plaintiffs claim that the activity rooms are over capacity, but that the fire inspector keeps "passing these unit inspections knowing that the State of Michigan is in violation." The Plaintiffs "fear death" because of "the constant outbreak of COVID-19 cases, and staff working while they are sick." The Plaintiffs also seek class action certification, contending that their complaint "affects a great number of prisoners who have served a great number of years before the illegal and unconstitutional violation of COVID-19 protocol violations took place." The Plaintiffs aver that the class "is so numerous that joinder of all members is impracticable." The Court determines that the Plaintiffs are not appropriate representatives of a class. The Court cited the case of Marr v. Michigan, No. 95-1794, 1996 WL 205582, at *1 (6th Cir. Apr. 25, 1996), where the Sixth Circuit held that "an imprisoned litigant who is not represented by counsel may not represent a class of inmates because the prisoner cannot adequately represent the interests of the class." Because the Plaintiffs are incarcerated pro se litigants, the Court denies the Plaintiffs' motion for class action certification. In this case, the Plaintiffs allege conditions that could facilitate COVID-19 transmission within KCF, but the Plaintiffs do not specifically allege that they suffer from conditions that make them medically vulnerable. Nonetheless, at this early stage, the Court concludes that "the Plaintiffs have alleged facts sufficient to satisfy the objective prong of the deliberate indifference test. . . However, the Plaintiffs fail to sufficiently allege that the Defendants have shown deliberate indifference to the risk posed by COVID-19." Indeed, the Plaintiffs even recognize that the MDOC took steps to address the COVID-19 pandemic, including telling inmates to wear masks and maintain cleanliness. The Court is sympathetic to Plaintiffs' concerns about the COVID-19 virus. However, the Court finds the Plaintiffs' factual allegations are too scarce to show deliberate indifference. . . Their complaint is insufficient to show a reasonable expectation or demonstrated probability that the Plaintiffs are in immediate danger of sustaining direct future injury such that injunctive relief is warranted. The Court, therefore, will dismiss Plaintiffs' Eighth Amendment claims against Defendants. Moreover, the Plaintiffs have sued state employees -- Governor Whitmer and MDOC Director Washington. . . therefore, the Plaintiffs cannot maintain their Fifth Amendment due process claims, and such claims will be dismissed." The Court reasons that: "A suit against an individual in his or her official capacity is equivalent to a suit against the governmental entity; in this case, the State of Michigan and the MDOC. Under the Eleventh Amendment, the states and their departments are immune from suit in the federal courts, unless the state has waived immunity or Congress has expressly abrogated Eleventh Amendment immunity by statute." A full-text copy of the Opinion dated March 17, 2023, is available at https://tinyurl.com/34za4b45 from Leagle.com. MOLSON COORS: Class Settlement in Marek Suit Wins Prelim. Approval ------------------------------------------------------------------ In the case, JENNIFER MAREK, et al., Plaintiffs v. MOLSON COORS BEVERAGE COMPANY, et al., Defendants, Case No. 21-cv-07174-WHO (N.D. Cal.), Judge William H. Orrick of the U.S. District Court for the Northern District of California enters an order preliminarily approving Class Action Settlement Agreement, as modified. Judge Orrick has reviewed the Settlement Agreement, the Amended Settlement Agreement, and the amended exhibits. He finds that the terms of the Settlement Agreement are sufficiently fair, reasonable, and adequate to allow dissemination of the Class Notice to members of the Class. This determination is not a final finding that the Settlement is fair, reasonable and adequate, but it is a determination that probable cause exists to disseminate Class Notice to the Class Members and hold a hearing on final approval of the proposed Settlement. For purposes of the settlement only, Judge Orrick provisionally certifies the Settlement Class, which consists of all persons, other than Excluded Persons, who between Jan. 1, 2020, and the date of Preliminary Approval, purchased, in the United States, any Vizzy brand hard seltzer beverages, except for purpose of resale. He conditionally designates the law firm of Gutride Safier LLP as the Class Counsel and Jennifer Marek, Isabelle Dwight, Darren Williams, Jennifer Gannon, Evvie Eyzaguirre, Brandi Fike, Lance Waldron, Jessica Tempest, and Vivian Nogueras as the Class Representatives for purposes of the settlement. A Final Approval Hearing will be held before the Court at 2:00 p.m. on July 12, 2023. The Parties and the Claim Administrator will comply with the Notice Plan and other deadlines as set forth in the Settlement Agreement and the Order. Judge Orrick designates and approves Angeion Group to serve as the Claim Administrator. The costs of notice and administration will be paid from the Settlement Fund, under the direction of the Class Counsel. Judge Orrick approves, as to form and content, the Claim Form and the notices. The Parties will have discretion to jointly make non-material minor revisions to the Claim Form or Notices. Responsibility regarding settlement administration, including, but not limited to, notice and related procedures, will be performed by the Claim Administrator, subject to the oversight of the Parties and this Court as described in the Settlement Agreement. Any member of the Class who desires to be excluded from the Settlement, and therefore not be bound by the terms of the Settlement Agreement, must submit a timely request for exclusion to the Claim Administrator, by completing the online form at the Settlement Website or mailing an Opt-Out request to the Claim Administrator at Vizzy Settlement Administrator, Attn: Exclusions, P.O. Box 5822, Philadelphia, PA 19102. The request must be submitted online or received by the Claim Administrator (not just postmarked) by May 9, 2023. The deadline for Plaintiffs to file a Motion for Attorneys' Fees, Costs, and Incentive Awards will be 35 days prior to the opt-out and objection deadline. No later than 14 days prior to the Final Approval hearing, the Claim Administrator will prepare a list of the names of the persons who, pursuant to the Class Notice described herein, have excluded themselves from the Settlement Class in a valid and timely manner, and the Plaintiffs' Counsel will file that list with the Court. The Court retains jurisdiction to resolve any disputed exclusion requests. Any member of the Class who elects to be excluded will not receive a Cash Payment, will not be bound by the terms of the Settlement Agreement, and will have no standing to object to the Settlement or intervene in the Litigation. Class Members who do not wish to be bound by a judgment in favor of or against the Class must exclude themselves from the Settlement. Any Class Member who does not submit a valid and timely request for exclusion may submit an objection to the Settlement Agreement. The objection deadline will be 42 days after the notice date. Any Objection must include: (1) a reference at the beginning to Marek, et al. v. Molson Coors Beverage Company USA LLC, Case No. 21-cv-07174-WHO; (2) the objector's name, address, telephone number, and, if available, email address; (3) a detailed statement of the objection(s); (4) a statement as to whether the objector is requesting the opportunity to appear and be heard at the Final Approval Hearing; and (5) the objector's signature as objector, in addition to the signature of the objector's attorney, if an attorney is representing the objector with the objection. Failure to include this information and documentation may be grounds for overruling and rejecting the objection. The Plaintiffs will file any reply in support of Final Approval and for any award of Attorneys' Fees and Expenses and a Class Representative Incentive Awards (including responses to objections) no later than no later than 14 days prior to the final approval hearing. All such filings and supporting documentation will be posted to the Settlement Website within one day of filing. Any Class Member wishing to make a Claim must submit a Claim Form to the Claim Administrator, pursuant to the instructions set forth in the Long Form Notice. The request must be submitted online or postmarked by no later than the claim deadline, which will be 60 days after the notice date. No later than 14 days prior to the final approval hearing, the Claim Administrator will provide a declaration to the Court regarding the provision of notice and as required by the Settlement Agreement and as to the number and dollar amount of claims received. For avoidance of doubt, the deadlines approved by the Court. The Parties are authorized to update the claim form, long form notice, published notice, and settlement website with dates consistent with the following timeline: a. 21 days after the date of the preliminary approval order - Deadline for filing Motion for Attorneys' Fees, Costs, and Representative Awards b. 35 days prior to the objection deadline - Deadline for submission of objections c. 42 days after the Notice Date - Deadline for submission of claims and opt outs d. 60 days after the Notice Date - Deadline for Claim Administrator to file a declaration pursuant to Agreement 5.8 and 5.9 e. 14 days prior to the final approval hearing - Deadline for filing replies in support of final approval and for attorneys' fees, costs and representative awards f. 14 days prior to the final approval hearing and response to objections to final approval hearing - First available Court date g. at least 90 days after Notice Date - Final approval hearing Notice Date is defined as the date by which all of the following have occurred: (i) publication in both People Magazine and USA Today; (ii) online notice to be published on internet sites through an appropriate programmatic network, social media, and a paid search campaign; (iii) published notice issued as a press release through GlobeNewswire (or a similar press release distribution service); and (iv) sponsored listings on two leading class action settlement websites, with postings by a social media influencer, and active listening on Facebook, Instagram and Twitter. The Order will not be construed as an admission or concession by the Defendant of the truth of any allegations made by the Plaintiff or of liability or fault of any kind. The Counsel for the Parties are authorized to utilize all reasonable procedures in connection with the administration of the settlement which are not materially inconsistent with either this Order or the terms of the Settlement Agreement. All further proceedings and deadlines in the action are stayed except for those required to effectuate the Settlement Agreement and the Order. A full-text copy of the Court's March 10, 2023 Order is available at https://tinyurl.com/47be6v44 from Leagle.com. MOM'S ORGANIC: Fails to Timely Provide COBRA Notice, Wilson Alleges ------------------------------------------------------------------- ELIZABETH W. WILSON, individually and on behalf of all others similarly situated v. MOM'S ORGANIC HOLDING CO. d/b/a MOM'S ORGANIC MARKET, and MOM'S ORGANIC MARKET, INC., Case No. 2:23-cv-01073 (D. Pa., Mar. 20, 2023) alleges that the Defendants fail to timely provide Plaintiff and similarly situated persons with a Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) notice in violation of the Employee Retirement Income Security Act of 1974 (ERISA), as amended by the COBRA. According to the complaint, the failure to provide a timely COBRA notice misled the Plaintiff and similarly situated persons and caused the Plaintiff and those similarly situated economic injuries in the form of lost health insurance and unpaid medical bills, as well as informational injuries. The Defendants have allegedly repeatedly violated ERISA by failing to timely provide participants and beneficiaries in the Plan with adequate notice, as prescribed by COBRA, of their right to continue their health coverage upon the occurrence of a "qualifying event" as defined by the statute. The Defendants' failures to provide any COBRA notification deprived Plaintiff and similarly situated persons the opportunity to make an informed decision about the healthcare options for themselves and their families, says the suit. The Plaintiff took a medical leave of absence pursuant to the Family and Medical Leave Act of 1993 (FMLA) beginning on November 1, 2021, and they did not return to work after the expiration of the twelve-week FMLA leave. The Plaintiff's employment with the Defendants was terminated on February 7, 2022, and her health insurance coverage ended on February 28, 2022. In the twelve months since Plaintiff's separation of employment, the Plaintiff has never been provided a COBRA notice. Moreover, the Plaintiff was never provided information explaining how to enroll in COBRA, despite the expiration of Plaintiff's employer-sponsored health insurance coverage. As a result of these violations, which threaten Class Members' ability to maintain their health insurance coverage, the Plaintiff seeks statutory penalties, injunctive relief, attorneys' fees, costs and expenses, and other appropriate relief as set forth herein and provided by law, the suit alleges. The Plaintiff was employed by the Defendants as a Wellness Manager In Training at Defendants' Cherry Hill, New Jersey location, from the fall of 2018 to February 28, 2022. She was not terminated for gross misconduct. MOM's Organic is a corporation that owns, manages, and operates specialty food stores in the mid-Atlantic region, including Abington, Pennsylvania, Bryn Mawr, Pennsylvania, and Center City Philadelphia, Pennsylvania. [BN] The Plaintiff is represented by: Liberato P. Verderame, Esq. Eric Lechtzin, Esq. Marc H. Edelson, Esq. EDELSON LECHTZIN LLP 411 S. State Street, Suite N-300 Newtown, PA 18940 Telephone: (215) 867-2399 Facsimile: (267) 685-0676 E-mail: elechtzin@edelson-law.com medelson@edelson-law.com MOM’S ORGANIC: Wilson Sues Over Deprived Insurance Benefits ------------------------------------------------------------- In Elizabeth W. Wilson, individually and on behalf of all others similarly situated v. MOM’s Organic Holding Co. d/b/a MOM's Organic Market, and MOM's Organic Market, Inc., Case No. 2:23-cv-01073 (E.D. Pa., March 20, 2023), Wilson alleges that the defendants have violated the Employee Retirement Income Security Act of 1974, as amended by the Consolidated Omnibus Budget Reconciliation Act of 1985, by failing to timely provide her and similarly situated persons with a COBRA notice. Allegedly, the failure to provide a timely COBRA notice misled Wilson and similarly situated persons and caused Wilson and those similarly situated economic injuries in the form of lost health insurance and unpaid medical bills, as well as informational injuries. As a result of these violations, which threaten class members' ability to maintain their health insurance coverage, Wilson seeks statutory penalties, injunctive relief, attorneys' fees, costs and expenses, and other appropriate relief as set forth herein and provided by law, the suit says. MOM's Organic Holding Co. d/b/a MOM's Organic Market is a corporation that owns, manages, and operates specialty food stores in the mid-Atlantic region, including Abington, Pennsylvania, Bryn Mawr, Pennsylvania, and Center City Philadelphia, Pennsylvania. Defendant maintains its principal place of business at 5612 Randolph Road, Rockville, Maryland.[BN] The Plaintiff is represented by: Liberato P. Verderame, Esq. Eric Lechtzin, Esq. Marc H. Edelson, Esq. EDELSON LECHTZIN LLP 411 S. State Street, Suite N-300 Newtown, PA 18940 Telephone: (215) 867-2399 Facsimile: (267) 685-0676 Email: elechtzin@edelson-law.com medelson@edelson-law.com MOORE'S SEWING: Cromitie Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Moore's Sewing. The case is styled as Seana Cromitie, on behalf of herself and all others similarly situated v. Moore's Sewing, Case No. 1:23-cv-02320 (S.D.N.Y., March 20, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Moore's Sewing -- https://www.moores-sew.com/ -- has provided best quality sewing machines, superior vacuum cleaners, and energy-efficient ceiling fans for over 70 years.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com MOVE INC: Must Defend Against Faucett's Robocall Suit ----------------------------------------------------- Judge Otis D. Wright, II of the U.S. District Court for the Central District of California denies the motion to dismiss filed by Move, Inc. d/b/a Realtor.com in the case caption as PRIESTLEY FAUCETT, Plaintiff, v. MOVE, INC. d/b/a REALTOR.COM, Defendant, Case No. 2:22-cv-04948-ODW (ASx), (C.D. Cal.). Priestley Faucett has a cellular telephone number ending in 5272, which is registered with the national "do not call" registry. Sometime in May 2022, Realtor.com began making phone calls to and leaving voice messages for Faucett at the Number. When Faucett answered his phone, a prerecorded voice prompted him to hold for a live representative. When a live representative appeared on the line, Faucett "told [Realtor.com] to stop calling in an attempt to opt-out of any further communications with [Realtor.com]." Faucett brings this putative class action against Move, Inc. d/b/a Realtor.com for alleged violations of the Telephone Consumer Protection Act. In his First Amended Complaint, Faucett alleges four causes of action under the TCPA on behalf of three putative classes: (1) violation of the prerecorded voice provision; (2) knowing or willful violation of the prerecorded voice provision; (3) violation of the "do not call" provisions and regulations against telephone solicitations; and (4) knowing or willful violation of the "do not call" provisions and regulations against telephone solicitations. Now, Realtor.com moves to dismiss Faucett's first and second causes of action on the basis that Faucett consented to the calls from Realtor.com. The Court finds that: "Dismissal is inappropriate because whether Faucett provided prior express consent, written or otherwise, is a question properly reserved for the summary judgment stage. . . To begin with, Faucett alleges that he did not provide express written consent to be contacted by Realtor.com with a prerecorded voice message. . . Although Realtor.com argues that the Transcriptions indicate that Faucett submitted an online inquiry expressing his interest in connecting with a real estate agent, that alone is insufficient to establish that Faucett consented to receiving prerecorded messages from Realtor.com. . . To conclude that the Transcriptions invalidate Faucett's allegation would require the Court to make several assumptions in Realtor.com's favor, including assumptions regarding the completeness of the Transcriptions. The Court is not permitted to make such assumptions at this phase. More specifically, the Court must not assume the truth of the [Transcriptions] if such assumptions only serve to dispute facts stated in a well-pleaded complaint. Because that is the very purpose for which Realtor.com presents the Transcriptions, dismissal on the basis of the Transcriptions is inappropriate." Realtor.com also argues that Faucett's third and fourth causes of action alleging violations of the "do not call" provisions and regulations against telephone solicitations fail because the calls at issue do not constitute "telephone solicitations." Realtor.com asserts that it merely offered a free service -- connecting Faucett with a real estate agent -- and did not seek to secure a purchase on the calls at issue. The Court notes that "the TCPA prohibits an entity from making more than one 'telephone solicitation' to the same person within a twelve-month period. The term 'telephone solicitation' means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services." In this case, the Court determines that "Faucett alleges, and Realtor.com concedes, that Realtor.com called him in order to connect him with a real estate agent. Realtor.com encouraged Faucett to purchase property or services by attempting to connect him to a real estate agent and, as such, Faucett's allegations that Realtor.com's messages constitute "telephone solicitations" under the TCPA are sufficient." A full-text copy of the Order dated March 17, 2023, is available at https://tinyurl.com/ysc8ncmu from Leagle.com. NATIONAL COLLEGIATE: Appeals Browne Suit Remand Order to 3rd Cir. ----------------------------------------------------------------- NATIONAL COLLEGIATE STUDENT LOAN TRUST, et al. are taking an appeal from a court order granting the plaintiff's motion to remand to state court the lawsuit entitled Lesroy Browne, individually and on behalf of all others similarly situated, Plaintiff, v. National Collegiate Student Loan Trust, et al., Defendants, Case No. 2-22-cv-02713, in the U.S. District Court for the District of New Jersey. On April 21, 2021, the Plaintiff filed this putative class action in the Superior Court of New Jersey, Law Division, Hudson County, Case No. HUD-L-1598-21. On May 27, 2021, Defendant National Collegiate Student Loan Trust ("NCSLT") removed the case to the U.S. District Court for the District of New Jersey. On July 30, 2021, NCSLT moved to dismiss the case, which the Court granted on jurisdictional grounds for lack of Article III standing on December 22, 2021. Thereafter, the Plaintiff declined to amend his complaint and instead filed a motion to amend the court's order of dismissal to include a mandate that his case be remanded to state court. On April 21, 2022, the Plaintiff filed an amended complaint in state court. On May 9, 2022, the Defendants removed the case to the District of New Jersey. The Plaintiff filed a motion to remand on June 8, 2022. On March 9, 2023, the Court granted the Plaintiff's motion to remand through an Order entered by Judge Kevin McNulty. The Court agreed that the case must be remanded to state court due to lack of subject matter jurisdiction. The appellate case is captioned Lesroy Browne v. National Collegiate Student Loan Trust, et al., Case No. 23-8014, in the United States Court of Appeals for the Third Circuit, filed on March 20, 2023. [BN] Plaintiff-Respondent LESROY E. BROWNE, individually and on behalf of all others similarly situated, is represented by: Yongmoon Kim, Esq. KIM LAW FIRM 411 Hackensack Avenue, Suite 701 Hackensack, NJ 07601 Telephone: (201) 273-7117 Defendants-Petitioners NATIONAL COLLEGIATE STUDENT LOAN TRUST, aka National Collegiate Master Student Loan Trust, et al., are represented by: Christopher B. Fontenelli, Esq. LOCKE LORD One Gateway Center 26th Floor, Suite 18 Newark, NJ 07102 Telephone: (212) 912-2730 - and - Joseph N. Froehlich, Esq. LOCKE LORD 200 Vesey Street Brookfield Place, 20th Floor New York, NY 10281 Telephone: (212) 415-8600 - and - Jennifer L. Del Medico, Esq. JONES DAY 250 Vesey Street, 13th Floor New York, NY 10281 Telephone: (212) 326-3939 - and - Christopher J. Borchert, Esq. ALSTON & BIRD 90 Park Avenue, 13th Floor New York, NY 10016 Telephone: (212) 210-9548 - and - Karl Geercken, Esq. ALSTON & BIRD 90 Park Avenue, 13th Floor New York, NY 10016 Telephone: (212) 210-9400 - and - Bryan C. Shartle, Esq. SESSIONS ISRAEL & SHARTLE 3850 North Causeway Boulevard Lakeway Two, Suite 200 Metairie, LA 70002 Telephone: (504) 846-7917 NATIONWIDE MUTUAL: Sweeney Class Suit May Proceed to Discovery -------------------------------------------------------------- In the case captioned as RYAN SWEENEY, et al., Plaintiffs, v. NATIONWIDE MUTUAL INSURANCE COMPANY, et al., Defendants, Civil Action 2:20-cv-1569, (S.D. Ohio), Judge James L. Graham of the U.S. District Court for the Southern District of Ohio overrules the Defendants' objections and affirms Magistrate Judge Vascura's January 6, 2023 Order Granting Plaintiffs' "Oral Motion to Compel." The Plaintiffs are participants in the Nationwide Savings Plan, a tax-qualified defined contribution pension plan available to eligible employees of Nationwide Mutual Insurance Company and certain subsidiaries. The most popular Plan investment option is the Guaranteed Investment Fund. The Plaintiffs filed the putative class action on Jan. 26, 2020. The Plaintiffs allege that Nationwide Life provides custodial, actuarial, investment, and accounting services to the Plan related to the Guaranteed Investment Fund. In return, Nationwide Life compensates itself by reducing the credit otherwise owed to the Plan. Beginning in October 2022, the parties raised various discovery disputes with the Magistrate Judge. The Magistrate Judge held a conference on Dec. 1, 2022, during which she denied the Plaintiffs' oral motion to compel production of the Defendants' electronically stored information as premature. After hearing from the parties, the Magistrate Judge found that the "Plaintiffs satisfied the necessary threshold showing of relevance because information related to the method by which Defendants determine the crediting rate for the GIF is relevant to Plaintiffs' claims for violation of the duty of loyalty and Defendants' statutory defenses. . . Defendants had not provided any information to support their proportionality objection, noting that Defendants had not run a hit report for Plaintiffs' proposed search terms 1, 2, and 5, and therefore the Court was unable to evaluate the time and cost required to review documents returned by Plaintiffs' proposed searches. . . Defendants' reliance on the parties' briefing on Plaintiff's pending motion under Federal Rule of Civil Procedure 56(d) was misplaced, as the determination of whether any particular discovery is necessary to respond to a summary judgment motion is not dispositive of whether it is otherwise within the scope of permissible discovery under Rule 26(b) and no stay of discovery had been entered." Accordingly, the Magistrate Judge granted Plaintiffs' oral motion and ordered the parties "to engage in the iterative process of generating hit reports, discussing the results, and proposing refinements as appropriate as to Plaintiffs' Proposed Search Nos. 1, 2, and 5." The Defendants Nationwide Mutual Insurance Company, Nationwide Life Insurance Company, Investment Committee of the Nationwide Savings Plan, David Berson, David LaPaul, Kevin O'Brien, Klaus Diem, Michael Mahaffey, and Michael P. Leach filed objections to the Magistrate Judge's Jan. 6, 2023 order. Judge Graham finds that the Defendants' objections lack merit. Judge Graham explains, "First and foremost, the Jan. 6, 2023 Order did not compel the production of any documents -- it merely compelled the parties to engage in the iterative process of running hit reports and suggesting refinements as to proposed search Nos. 1, 2, and 5 -- Magistrate Judge did not reverse her prior order requiring Plaintiffs to file a written motion to compel." "Second, although Federal Rule of Civil Procedure 7(b)(1)(A) states that "a request for a court order made by motion" and "the motion must be in writing unless made during a hearing or a trial" -- this requirement amply satisfied -- the parties submitted written position statements in advance of the conference to discuss outstanding ESI disputes." "Third, the Magistrate Judge did not err in declining to rely on the parties' briefing on Plaintiffs' Rule 56(d) motion -- she was within her discretion to not consider extraneous briefing offered at the eleventh hour instead of the brief position statement focused on ESI that she requested." "Finally, the Court has reviewed the parties' position statements and the Jan. 6, 2023 Order and finds no error in the Magistrate Judge's conclusion that Plaintiffs' proposed search Nos. 1, 2, and 5 are relevant to Plaintiffs' duty of loyalty claims and Defendants' statutory defenses. Judge Graham further explains that "the Plaintiff's claim for violation of fiduciary duties centers around allegations of self-dealing, not necessarily allegations that Defendants acted otherwise imprudently. . . Defendants' asserted defense. . . "requires, among other things, that the plan pay no more than adequate consideration to the insurer." As such, Judge Graham concludes that the Plaintiffs are entitled to discovery related to the compensation paid to Defendants. Moreover, Judge Graham notes that the Defendants still have not provided the Court with appropriate information to evaluate the proportionality of Plaintiffs' proposed searches, as the hit report returning over 580,000 hits (which Defendants ran only after the Magistrate Judge issued the January 6, 2023 Order) did not account for the Magistrate Judge's suggestion that the parties remove general search terms such as "401k" or "plan." A full-text copy of the Opinion and Order dated March 17, 2023, is available at https://tinyurl.com/5efbp2xr from Leagle.com. NEW CREDIT AMERICA: Albertson Suit Removed to D. New Jersey ----------------------------------------------------------- The case styled as Frances Albertson, on behalf of himself and all others similarly situated v. New Credit America LLC, Cross River Bank, Case No. CAM-L-494-23 was removed from the Superior Court of New Jersey, Law Division, Camden, to the U.S. District Court for the District of New Jersey on March 17, 2023. The District Court Clerk assigned Case No. 1:23-cv-01497 to the proceeding. The nature of suit is stated as Consumer Credit. New Credit America -- https://www.newcreditamerica.com/ -- is a financial company that assists clients in debts, loans, payments, repayments and credit report.[BN] The Plaintiff appears pro se. The Defendant is represented by: Andrew J. Soven, Esq. HOLLAND AND KNIGHT LLP 2929 Arch Street Cira Centre, Suite 800 Philadelphia, PA 19104 Phone: (215) 252-9600 Fax: (215) 867-6070 Email: Andrew.Soven@hklaw.com NEWREZ LLC: E.D. Michigan Narrows Claims in Apodaca Class Suit -------------------------------------------------------------- In the case, BRYAN APODACA, Plaintiff v. NEWREZ LLC, Defendant, Case No. 22-1246 (E.D. Mich.), Judge Sean F. Cox of the U.S. District Court for the Eastern District of Michigan, Southern Division, grants in part and denies it in part the Defendant's Motion to Dismiss. Newrez is a Delaware limited liability company that is headquartered in Plymouth Meeting, Pennsylvania. Apodaca is a resident and citizen of Texas. In 2021, the Plaintiff refinanced a mortgage on a single-family home in Cypress, Texas. He executed a written thirty-year mortgage with Intercontinental Capital Group, Inc., a direct lender, on Feb. 22, 2021, in the amount of $392,911. The Plaintiff filed the putative class action against the Defendant, his mortgage servicer, in state court, alleging that it improperly bought and charged him for property insurance on his home. The Plaintiff asserts the following claims: 1) Breach of Contract (Count I); 2) Breach of the Implied Covenant of Good Faith and Fair Dealing (Count II); 3) Violation of the Michigan Consumer Protection Act (MCPA) (Count III); 4) Violation of the Pennsylvania Consumer Protection Act (Count IV); and 5) Money Had and Received/Unjust Enrichment (Restitution) (Count V). The class action was filed to redress injuries that the Plaintiff and a class of consumers have suffered and will continue to suffer as a result of the practices of the Defendant relating to forceplaced insurance policies. The Plaintiff and the Class allege that the Defendant derives improper financial benefits from imposing force-placed hazard insurance policies on properties, injuring Plaintiff and the class. In addition, it is charging residential borrowers for the cost of procuring forceplaced insurance, but a portion of such cost is returned, transferred, kicked-back or otherwise paid to Newrez and/or its related entities. Newrez and/or its related entities do no meaningful work for the sums received, and therefore the payments forwarded to them amount to an unearned kickback designed to encourage the referral of business to third-party insurers at extraordinarily high prices, to the detriment of the Plaintiff and the Class. While Newrez has discretion in selecting a third-party insurance company to place insurance with, if and when authorized by contract, it abuses that discretion and self-deals to the detriment of the Plaintiff and the Class by selecting the insurance company that provides Newrez the greatest benefits, opposed to the most favorable terms and lowest prices for the benefit of the Plaintiff and the Class. The Plaintiff alleges that the Defendant has engaged in a pattern of unlawful and unconscionable profiteering and self-dealing regarding its purchase and placement of force-placed insurance policies in bad faith. In this action, Plaintiff challenges Newrez's practice of purchasing force-placed hazard insurance from third-parry insurers, such as National Fire pursuant to agreements to obtain a commission or kickback, resulting in unauthorized, unjustified, and unfairly inflated costs to the borrower for force-placed insurance in violation of law. The Defendant removed the matter to federal court, under the Class Action Fairness Act, 28 U.S.C. Section 1332(d). On Nov. 14, 2022, it filed a Motion to Dismiss, pursuant to Fed. R. Civ. P. 12(b)(6). The Defendant attached, as exhibits to its motion, notices that it claims it sent to the Plaintiff. After the Defendant filed its motion, the Court issued its standard order, giving the Plaintiff the option of either filing an amended complaint (in order to cure any pleading deficiencies) or filing a response to the motion. The Plaintiff chose to file a brief in opposition to the motion. The parties have briefed the issues and the Court heard oral argument on March 2, 2023. Judge Cox notes that Apodaca is the only named Plaintiff in the putative class action. At this juncture, no motion for class certification has been filed. Judge Cox grants the motion in part and denies it in part. He grants the motion, to the extent that he dismisses the Plaintiff's breach of implied covenant of good faith and fair dealing claim, his claim under MCPA, and his unjust enrichment claim, all with prejudice. He denies the motion in all other respects, which leaves the Plaintiff's breach of contract claim (under Texas law) and his claim under Pennsylvania's Consumer Protection Act to proceed in the case. Among other things, Judge Coz finds that the Plaintiff seems to assert that the requisite "special relationship" exists, such as to allow him to bring a separate claim for breach of the implied covenant of good faith and fair dealing, by virtue of contractual provisions. The breach of a contractual provision is a breach of contract. Absent a requisite special relationship, any duty to act in good faith is "contractual in nature" and its breach does not amount to an independent tort. Judge Cox also finds that by its terms, the MCPA does not apply to a transaction or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States. The Defendant persuasively argues that the MCPA does not apply here because the Plaintiff brings claims arising out of terms of the deed of trust and mortgage servicing, which are transactions subject to federal regulation. Courts have consistently applied the MCPA exemption to the mortgage loan transactions of regulated lending institutions. As to the Plaintiff's unjust enrichment count, the Defendant asserts that the claim fails because the same subject matter is covered by an express contract. Judge Cox agrees with the Defendant that the claim should be dismissed. He says there is no dispute that the Deed of Trust is a valid and enforceable contract between the parties and that contract governs the subject of force-placed insurance. As Judge Cox expressed at the hearing, given that the Plaintiff is a Texas citizen and that the Defendant is a Delaware LLC with its headquarters in Pennsylvania, it appears that he should transfer the case to the U.S. District Court for the Eastern District of Pennsylvania. But he gives the parties the opportunity to be heard on that issue before doing so. A full-text copy of the Court's March 10, 2023 Opinion & Order is available at https://tinyurl.com/2s6zx3fa from Leagle.com. NISSAN NA: Must Defend Against Bereda's Brake System Suit --------------------------------------------------------- Judge William L. Campbell, Jr. of the U.S. District Court for the Middle District of Tennessee denies Nissan N.A.'s Motion to Dismiss filed in the case captioned as MICHELLE BEREDA, et al., Individually and on behalf of all others similarly situated, Plaintiffs, v. NISSAN NORTH AMERICA, INC., et al., Defendants, Case No. 3:22-cv-00098, (M.D. Tenn.). This case is the third in a collection of three consolidated cases against Nissan N.A. and Nissan Motor Corporation alleging a multitude of claims related to the purported failures of the Forward Emergency Braking System in certain Nissan vehicles. The Court has already ruled on motions to dismiss in the other two cases, In re Nissan North America Litigation (Case No. 3:19-cv-843, Doc. Nos. 269, 270) and Kemp v. Nissan North America, Inc., et al. (Case No. 3:19-cv-584, Doc. Nos. 67, 68). The Court has reviewed the arguments in the parties' briefing and finds that they are materially the same as the arguments presented in the briefing in In re Nissan North America Litigation as to the California, North Carolina, and Ohio plaintiffs in that case, except the briefing on implied warranty. Seeing no material changes between the allegations and arguments here and those presented in the sister case, the Court adopts findings and rulings made as to Nissan N.A. in its previous order -- but limited those findings and rulings on the issues raised in this motion to dismiss except for those for the implied warranty claims. Nissan N.A. moves to dismiss the implied warranty claims of all Plaintiffs on the grounds that they have failed to allege facts supporting a finding that they are in vertical privity with Nissan N.A. because they allege that they purchased their vehicles through authorized dealers and not directly from Nissan N.A. The Plaintiffs respond that vertical privity is not required where, as here, the Plaintiffs are the intended third-party beneficiaries of the contract. The Plaintiffs have alleged that they are the intended third-party beneficiaries of the warranties. In the instant case, the Plaintiff alleges that she purchased her vehicle from a Nissan dealership. She further alleges that Nissan N.A. issued written warranties for its vehicles, that the warranty agreements were designed to benefit the purchasers and not the dealers and that she was the intended third-party beneficiary. At this early stage, the Court is not persuaded that Plaintiff Hoeffken's claims are precluded by lack of vertical privity and will not be dismissed on these grounds. The Court explains that "although privity is required for a contract-based implied warranty claim, federal courts applying Ohio law readily have found the privity requirement to be satisfied where the manufacturer issued a written warranty covering the vehicle in question and the claims are based on warranty-covered defects." The Court finds that the parties' briefing fails to address this distinction, and the Court does not find Nissan N.A.'s arguments to be a persuasive basis to dismiss Plaintiff Bereda's implied warranty claims on these grounds. The Court further explains that "in the context of auto-manufacturing, where often 'the market for new cars is structured such that drivers much buy from an authorized dealer and do not have the option to buy directly from' the manufacturer -- courts have permitted the claim to proceed where the plaintiff has plausibly alleged that they, as opposed to the dealer, are the intended beneficiary of the warranty." The Court disagrees with Nissan N.A.'s contention that Plaintiff Neri fails to plausibly allege this relationship. The Court finds that "Plaintiff pleaded that he purchased his vehicle from an authorized Nissan dealer, that Nissan N.A. issued written warranties for the vehicles, and that, as the ultimate users, the buyers and lessees of those vehicles were the intended beneficiaries of Nissan N.A.'s warranties -- these allegations are sufficient to plausibly allege a breach of implied warranty." A full-text copy of the Memorandum and Order dated March 17, 2023, is available at https://tinyurl.com/ywmzv5xf from Leagle.com. O'GARA COACH: Denial of Motion to Compel Arbitration Affirmed ------------------------------------------------------------- In the appealed case captioned as VICTOR ANGELO PEREZ, Plaintiff and Respondent, v. O'GARA COACH COMPANY, LLC, Defendant and Appellant, Case No. B320273, (Cal. Ct. App.), the Second District of the California Court of Appeals affirms the trial court's order denying O'Gara Coach Company, LLC's petition to compel arbitration. On Oct. 18, 2021, Victor Angelo Perez filed a class action complaint against O'Gara on behalf of himself and all persons similarly situated. Perez's causes of action included allegations of O'Gara's failure to pay wages and overtime, failure to provide meal and rest breaks, failure to reimburse business expenses, failure to maintain accurate wage statements, violation of Business and Professions Code section 17200 et seq., and violation of Labor Code section 2699 et seq. Perez sought to represent "'all current and former employees that have been paid on an hourly basis by'" O'Gara during a four-year time period. Perez alleged he worked for O'Gara from approximately November 2016 to June 16, 2021. O'Gara petitioned to compel arbitration. According to O'Gara: "On Dec. 26, 2019, Perez executed a Dispute Resolution Agreement with O'Gara which contains an express Arbitration Provision that requires binding arbitration of 'all disputes that might arise out of or be related in any way to [Perez's] employment by [O'Gara.] . . .'" O'Gara represented that: "Perez was given an opportunity to review the Dispute Resolution Agreement, including the arbitration provision, prior to executing it." According to Perez's opposition to the petition to compel: "The 2019 Agreement [the DRA] was provided in or about December 2019. . . Defendant's Controller, Bertha Aguiano walked to Plaintiff's desk during work hours and handed him a one-page document to sign. When Plaintiff asked what the document was for, Bertha stated that the signature was required to 'update' his personnel file. Bertha stood at Plaintiff's desk until he signed the document. Plaintiff never saw or received a copy of the first two pages of the 2019 Agreement, until after the lawsuit was filed." The trial court's March 3, 2022 minute order provides: "The Court. . . makes the following ruling: The Motion to Compel Arbitration is DENIED, for the reasons stated on the record. Plaintiff to amend the complaint to add PAGA claims by March 17, 2022." Hence, this appeal. The Court affirms the trial court's order because O'Gara did not request a statement of decision, and therefore, under the applicable standards of appellate review, O'Gara would have had to demonstrate that, as a matter of law, the trial court erred in not compelling arbitration. O'Gara has failed to do so. The Court finds that "there was evidence that Perez did not consent to arbitrate disputes because O'Gara never provided the substantive terms of the DRA to Perez. Specifically, pages one and two of the DRA contain the material terms, and according to Perez, O'Gara never provided him with those pages. Additionally, when Perez inquired, O'Gara's representative did not disclose that the DRA constituted an arbitration agreement, but instead represented that its purpose was to update Perez's personnel file. Although the last page of the DRA requires O'Gara's representative to "give a copy to employee," O'Gara did not provide it to Perez. Thus, the evidence supports the conclusion that O'Gara did not provide the terms of the DRA to Perez, a conclusion that is fatal to finding he consented to arbitrate his claims." O'Gara also argues that this Court "should direct the trial court to dismiss, with prejudice, his [Perez's] request for class-wide relief." Additionally, O'Gara claims that the PAGA claim should be dismissed. It appears that those arguments are premised on the enforceability of the DRA. Because the Court has concluded that there was no mutual assent to the DRA, there is no arbitration agreement to enforce -- the Court need not further consider O'Gara's request to dismiss certain claims based on language contained in the DRA. A full-text copy of the Opinion dated March 20, 2023, is available at https://tinyurl.com/5n7d24ja from Leagle.com. ONE SOUL LLC: Tabai Suit Removed to S.D. Florida ------------------------------------------------ The case styled as Carolina Tabai, individually and on behalf of all others similarly situated v. One Soul, LLC d/b/a Total Nutrition, was removed to the U.S. District Court for the Southern District of Florida on March 20, 2023. The District Court Clerk assigned Case No. 0:23-cv-60521-XXXX to the proceeding. The nature of suit is stated as Consumer Credit. One Soul, LLC doing business as Total Nutrition -- https://www.shoptotalnutrition.com/ -- is your #1 store in Muscle Builders, Sports Nutrition, Body Recomposition, Nootropics, Antioxidants, Pre-Workout, Recovery & More.[BN] The Plaintiff appears pro se. The Defendant is represented by: Chelsey Rae Pankratz, Esq. FROST ECHOLS LLC P.O. Box 12645 Rock Hill, SC 29731 Phone: (904) 467-5665 Email: chelsey.pankratz@frostechols.com OREGON: Court Tosses Zambrano Bid for Class Certification --------------------------------------------------------- In the class action lawsuit captioned as SERGIO MIGUEL ZAMBRANO, v. OREGON DEPARTMENT OF CORRECTIONS et al., Case No. 2:22-cv-00443-SB (D. Or.), the Hon. Judge Michael W. Mosman entered an order 1. denying the Plaintiffs motion for preliminary injunction; 2. denying the Plaintiffs motion for class certification; and 3. appointing class counsel. The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations of the magistrate judge but retains responsibility for making the final determination. The court is generally required to make a de novo determination regarding those portions of the report or specified findings or recommendation as to which an objection is made. A copy of the Court's order dated March 10, 2023 is available from PacerMonitor.com at https://bit.ly/3yPJObA at no extra charge.[CC] PAYPAL HOLDINGS: Faces Kang Securities Suit Over Bank Transactions ------------------------------------------------------------------ Paypal Holdings Inc. disclosed in its Form 10-K report for the fiscal year ended December 31, 2022, filed with the Securities and Exchange Commission on February 10, 2023, that on August 20, 2021, a putative securities class action captioned "Kang v. PayPal Holdings, Inc., et al.," Case No. 21-cv-06468, was filed in the U.S. District court for the Northern District of California. The Kang Securities Action purports to be brought on behalf of purchasers of the company's stock between February 9, 2017, and July 28, 2021, and asserts claims for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 against the company, its Chief Executive Officer, and former Chief Financial Officer. The complaint alleges that certain public statements made by the company during the Class Period were rendered materially false and misleading (which, allegedly, caused the company's stock to trade at artificially inflated prices) by the defendant's failure to disclose that, among other things, PayPal's business practices with respect to PayPal Credit and regarding interchange rates paid to its bank partner related to its bank-issued co-branded debit cards were non-compliant with applicable laws and/or regulations. The Kang Securities Action seeks unspecified compensatory damages on behalf of the putative class members. On November 2, 2021, the court-appointed a Lead Plaintiff, and on January 25, 2022, the Lead Plaintiff filed an amended complaint. The amended complaint alleges a class period between April 27, 2016, and July 28, 2021, and in addition to the company, its Chief Executive Officer, and former Chief Financial Officer, also names other company executives as defendants. The amended complaint alleges that various statements made by the defendants during the Amended Class Period were rendered materially false and misleading, in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, by PayPal's alleged violations of the 2015 consent order with the CFPB, federal consumer financial laws, and Regulation II. On August 8, 2022, the court granted the Defendants' motion to dismiss the amended complaint in its entirety and granted Lead Plaintiff's request for leave to file a further amended complaint. On September 16, 2022, Lead Plaintiff filed a Second Amended Complaint, which asserts the same claims against the same Defendants based on the same alleged conduct as the prior complaint. Defendants moved to dismiss the SAC on November 3, 2022, and briefing is ongoing. PayPal Holdings, Inc. is a technology platform that enables digital payments based in California. PENNSYLVANIA: Bid for Summary Judgment in Alford v. Baylor Denied ----------------------------------------------------------------- In the case, CRAIG ALFORD, Plaintiff v. LEA BAYLOR, et al., Defendants, Case No. 1:20-CV-01787 (M.D. Pa.), Judge Matthew W. Brann of the U.S. District Court for the Middle District of Pennsylvania denies Alford's motion to compel discovery and for sanctions, motion for declaratory judgment, and motion for summary judgment. Alford filed the pro se Section 1983 action, alleging constitutional violations during his pretrial detention at Monroe County Correctional Facility (MCCF) in Stroudsburg, Pennsylvania. Alford now moves to compel discovery and for sanctions, for declaratory judgment pursuant to Federal Rule of Civil Procedure 57 and 28 U.S.C. Section 2201, and for summary judgment pursuant to Federal Rule of Civil Procedure 56. The civil action was originally commenced on Oct. 1, 2020, by eight plaintiffs who -- at that time -- were pretrial detainees at MCCF. The complaint was styled as a "class action," seeking to bring collective Section 1983 claims against four defendants -- three prison officials at MCCF and the Monroe County prothonotary (and clerk of courts). The gravamen of the complaint was that the Plaintiffs were being unlawfully held in pretrial detention and without arraignment longer than permitted by various Pennsylvania Rules of Criminal Procedure, thus violating their constitutional rights. According to the allegations, some Plaintiffs were being held in pretrial detention longer than allowed after the filing of a criminal complaint (in violation of Rule 600), and others were being held in pretrial detention too long without formal arraignment (in violation of Rule 571). The Plaintiffs specifically noted that they were not "seeking release from custody," only monetary damages for the purported illegal pretrial confinement. On Oct. 13, 2020, the Court dismissed the complaint pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii), finding that the Plaintiffs' Section 1983 claims were barred by the Supreme Court's decision in Heck v. Humphrey. Only one Plaintiff, Alford, appealed. The U.S. Court of Appeals for the Third Circuit vacated the Oct. 13, 2020 judgment and remanded for further proceedings as to Alford's Section 1983 claim involving failure to timely arraign, holding only that it was not barred by the favorable termination rule in Heck v. Humphrey. On remand, the Court reviewed the complaint to determine if it stated a claim for relief absent any Heck v. Humphrey bar. On Dec. 8, 2021, it dismissed the complaint pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii) for failure to state a claim. Specifically, the Court determined that the complaint did not plead facts plausibly establishing how the named Defendants had violated the Fourteenth Amendment. It dismissed the complaint but granted leave to amend. In December 2021, Alford filed an amended complaint. He again attempted to file for himself and on the behalf of other Plaintiffs, but those other Plaintiffs were dismissed from on Jan. 14, 2022, for failure to file amended complaints. In that January 14 dismissal order, the Court also explicitly noted that non-lawyer pro se litigants like Alford cannot represent other parties in federal court, and that because the amended complaint is signed only by Alford, it applies only to his own claims. The Defendants subsequently moved to dismiss Alford's amended complaint. In a detailed opinion, the Court dismissed many of Alford's claims but permitted the following to proceed: (1) Alford's official capacity Fourteenth Amendment due process claim against defendant Haidle, and (2) Alford's individual capacity Fourteenth Amendment due process claims against defendants Baylor, Armond, and Haidle. Alford now moves to compel discovery and for sanctions, for declaratory judgment, and for summary judgment. The motions are fully briefed. The Defendants oppose each of Alford's motions. Judge Brann first examines Alford's motion to compel discovery and for sanctions. He says Alford does not seem to understand that he is responsible for the costs of civil discovery. That includes paying for a court reporter (and any other costs) for a deposition. Thus, if Alford desires to depose one or all of the remaining Defendants, he must secure and pay for a court reporter for each deposition and must work amicably with defense counsel to establish a date and time for said deposition (for one Defendant at a time) that is convenient for both parties and for Alford's facility of incarceration. Alford will additionally need to move to extend the discovery deadline in the case, which closed on Jan. 20, 2023. Accordingly, Alford's motion to compel and for sanctions (and, to the extent requested, for payment of deposition costs by the Court) is denied. Judge Brann then turns to his motions for declaratory and summary judgment. He says Alford's motions for declaratory judgment and summary judgment can be addressed, and denied, together. That is because there are obvious disputes of material fact present in the instant case. To the extent that the Defendants assert that summary judgment should be granted "for the defendants," or that they are entitled to qualified immunity, they are free to properly assert such arguments through their own Rule 56 motion that complies with the Federal Rules of Civil Procedure and the Local Rules of Court. As it stands, the Defendants are not the "moving" party and have simply opposed Alford's motions for declaratory and summary judgment, which motions are denied for the stated reasons. An appropriate Order follows. A full-text copy of the Court's March 10, 2023 Memorandum Opinion is available at https://tinyurl.com/2wr3twc5 from Leagle.com. PENSKE TRUCK: Conditional Status of Collective FLSA Class Sought ---------------------------------------------------------------- In the class action lawsuit captioned as MICHAEL PHILLIPS, Individually and on behalf of all others similarly situated, v. PENSKE TRUCK LEASING CO., L.P., Case No. 5:22-cv-01889-JLS (E.D. Pa.), the Plaintiff moves, pursuant to section 216(b) of the Fair Labor Standards Act ("FLSA"), for entry of an order: (1) Conditionally certifying the proposed collective FLSA class; (2) Implementing a procedure whereby Court-approved Notice of the Plaintiff's FLSA claims is sent (via U.S. Mail, e- mail, text message, and posting) to: "All hourly Mechanics who worked for Penske Truck Leasing Co., L.P., anywhere in the United States, at any time from May 13, 2019, through the final disposition of this matter, and were required to be "on call;" (3) Approving the form and content of the Plaintiff's proposed judicial Notice and reminder Notice attached as Exhibit 3; (4) Approving the schedule indicated in Exhibit 4; (5) Approving a Reminder Notice to be sent to Putative Collective Members halfway through the 60-day notice period; (6) Allowing Putative Collective Members to execute electronic consent forms; and (7) Requiring the Defendant, within 14 days of this Court's order, to identify all Putative Collective Members by providing a list in electronic and importable format, of the names, mailing addresses, e-mail addresses, and phone numbers of all Putative Class Members who worked for the Defendant at any time from May 13, 2019, through the present. Penske operates a truck rental and leasing company. A copy of the Court's order dated March 10, 2023 is available from PacerMonitor.com at https://bit.ly/3LDIiRA at no extra charge.[CC] The Plaintiff is represented by: Clif Alexander, Esq. Austin W. Anderson, Esq. Blayne Fisher, Esq. ANDERSON ALEXANDER, PLLC 101 N. Shoreline Blvd., Suite 610 Corpus Christi, TX 78401 Telephone: (361) 452-1279 - and - Peter Winebrake, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 - and - William S. Hommel, Jr., Esq. HOMMEL LAW FIRM 5620 Old Bullard Road, Suite 115 Tyler, TX 75703 Telephone: (903) 596-7100 PERK INDUSTRIES: Keegan Sues Over Sale of Adulterated Supplements ----------------------------------------------------------------- BRIAN KEEGAN, individually and on behalf of all others similarly situated, Plaintiff v. DANIEL P. MINAHAN, PERK INDUSTRIES INC., and INNOVATIVE HEALTH LABS INC., Defendants, Case No. 0:23-cv-60501-RNS (S.D. Fla., March 17, 2023) is a class action against the Defendants for common law fraud. According to the complaint, the Defendants are engaged in false, deceptive, and misleading advertising, labeling, and marketing of a dietary supplement called Boner Bears. The Defendants advertised Boner Bears as natural herbal remedy for erectile dysfunction, but it failed to disclose that the product is covertly adulterated with Tadalafil, the generic ingredient in the well-known pharmaceutical Cialis which can only be bought under the supervision of a physician, by prescription only. The Plaintiff and the putative class of consumers were damaged by being subjected to a non-prescribed, potentially dangerous pharmaceutical, as well as by the taking of funds expended to purchase a product marketed and sold based on lies, deceit, and material concealment of true constituent ingredients, the suit says. Perk Industries Inc. is a manufacturer of health food supplements, with a place of business located in Fort Lauderdale, Florida. Innovative Health Labs Inc. is a manufacturer of health food supplements, with a place of business located in Fort Lauderdale, Florida. [BN] The Plaintiff is represented by: Michael S. Hoffman, Esq. HOFFMAN, LARIN & AGNETTI, P.A. 909 North Miami Beach Blvd., Suite 201 North Miami, FL 33162 Telephone: (305) 653-5555 Facsimile: (305) 940-0090 E-mail: mshoffman@hlalaw.com - and - Harold M. Hoffman, Esq. 240 Grand Avenue Englewood, NJ 07631 Telephone: (201) 569-0086 E-mail: hoffman.esq@verizon.net PHILADELPHIA, PA: Runner Gets Another Stab at Class Status Bid -------------------------------------------------------------- In the appealed case captioned as Monica Staniec, Appellant, v. City of Philadelphia, Case No. 1194 C.D. 2021, (Pa. Commw. Ct.), Judge Stacy Wallace of the Commonwealth Court of Pennsylvania vacates the order of the Court of Common Pleas of Philadelphia County entered Oct. 25, 2021, and remands for further consideration of the motion for class certification. The City of Philadelphia organizes and operates the Broad Street Run, which is an annual running race in the City. The Race was scheduled to take place on May 3, 2020. Potential racers entered an online lottery, and, if they were selected, paid a $57 entry fee to register for the Race. Approximately 43,500 people registered for the Race. After accepting the Racers' registration fees, the City delayed the Race and rescheduled it to Oct. 4, 2020, due to the recent onset of the COVID-19 pandemic. Consequently, Monica Staniec filed a class action lawsuit against the City of Philadelphia in the trial court. In her lawsuit, Staniec brought a cause of action for breach of contract, alleging the City unilaterally changed, and breached, the terms of the contract between the City and the Racers. Staniec also brought a second, alternative cause of action for unjust enrichment, alleging the City was unjustly enriched by retaining the Racers' registration fees and not providing an in-person race. Next, Staniec filed a motion for class certification. The City argued Staniec failed to carry her burden of proof with regard to each element necessary for class certification, except for numerosity (which the City conceded), because Staniec only presented conclusory statements and allegations through argument, not evidence, at the class certification hearing. The trial court entered an order denying Staniec's motion for class certification and transferring Staniec's individual claims to the trial court's compulsory arbitration program. In its opinion, the trial court determined Staniec failed to present evidence to "satisfy the commonality, typicality, and predominance requirements for certifying a class." In her appeal, Staniec asserts the trial court committed several errors of law in determining she did not establish a prima facie case for the commonality and predominance requirements for class certification. In addition, Staniec asserts the trial court applied the incorrect legal standard and relied upon speculation in determining she did not establish the typicality requirement. Judge Wallace opines that the trial court "applied incorrect legal standards in determining that Staniec failed to establish a prima facie case for the commonality, typicality, and predominance requirements for class certification. In analyzing the correct legal standards, we conclude Staniec has established a prima facie case for each of these requirements. The trial court did not, however, analyze the remaining factors set forth in Pennsylvania Rule of Civil Procedure 1708." In analyzing the correct legal standard, Judge Wallace notes that "the City admitted it entered into a contract with the Racers for an in-person race, received the Racers' registration fees, cancelled the in-person race, and did not refund the Racers' registration fees. Staniec is seeking compensation for the Racers, in the form of a refund of their registration fees, on theories of breach of contract and unjust enrichment. Staniec's claims arose from the same course of conduct and involve the same legal theories as the rest of the putative class's claims. In addition, Staniec's pursuit of her own interests, where she seeks a refund of her own registration fee, will advance the proposed class members' interests." Thus, Judge Wallace concludes that Staniec has established a prima facie case for the typicality requirement and the trial court's contrary conclusion was based upon the application of an improper legal standard. A full-text copy of the Opinion dated March 17, 2023, is available at https://tinyurl.com/ymjypj2a from Leagle.com. PLUSHCARE INC: Settlement With Robbins Gets Preliminary Approval ---------------------------------------------------------------- Judge Maxine M. Chesney of the U.S. District Court for the Northern District of California grants the Motion for Preliminary Approval of Class Action Settlement between the Plaintiffs Sarah Robbins and Tiffany Smith and the Defendants PlushCare, Inc. and PlushCare of California, Inc. A.P.C. in the case captioned as SARAH ROBBINS and TIFFANY SMITH, individually and on behalf of all others similarly situated, Plaintiffs, v. PLUSHCARE, INC. and PLUSHCARE OF CALIFONRIA, INC., A.P.C. Defendants, Case No. 3:21-cv-03444-MMC, (N.D. Cal.). Among others, Judge Chesney finds and orders as follows: 1. The proposed settlement set forth in the Settlement Agreement is preliminarily approved as being fair, reasonable, and adequate such that notice of the settlement should be given to members of the Class. 2. The Court preliminarily finds that the Settlement is in all respects fundamentally fair, reasonable, adequate, and in the best interest of the Class Members, when considering, in their totality, and to the extent such information is available at this time, the following factors: "the strength of the plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement." 3. For purposes of settlement only: (a) Alexis M. Wood and Kas L. Gallucci of the Law Offices of Ronald A. Marron are appointed as Class Counsel for the Settlement Class; and (b) Sarah Robbins and Tiffany Smith are appointed as Class Representatives. The Court finds that these attorneys are competent and capable of exercising the responsibilities of Class Counsel and that the Plaintiffs will adequately protect the interests of the Settlement Class. 4. On July 21, 2023, at 9:00 a.m., the Court will hold a Final Approval Hearing on the fairness, adequacy, and reasonableness of the Settlement Agreement, and to determine whether: (i) final approval of the Settlement should be granted; and (ii) Class Counsel's application for attorney's fees costs, and expenses, and incentive awards to the Class Representatives, should be granted. No later than April 24, 2023, the Plaintiffs must file their papers in support of Class Counsel's application for attorney's fees and expenses, and no later than July 7, 2023, Plaintiffs must file their papers in support of final approval of the Settlement. 5. Angeion Group is appointed as Settlement Administrator and will be required to perform all of the duties of the Settlement Administrator as set forth in the Settlement Agreement and this Order. 6. All persons who wish to exclude themselves from the Settlement must submit their request for exclusion in writing postmarked on or before the Opt-Out Deadline, which will be June 13, 2023. 7. Any Class Member who intends to object to the fairness of this Settlement must submit a written objection with the Court, no later than the Objection Deadline, which will be June 13, 2023. 8. Pending determination of whether final approval of the Settlement Agreement should be granted, the Court enjoins the Plaintiffs and all Class Members unless and until they have timely excluded themselves from (a) filing, commencing, prosecuting, intervening in or participating as a plaintiff, in any other lawsuit, arbitration or other proceeding against any Released Party in any jurisdiction based on the Released Claims, and (b) filing, commencing or prosecuting a lawsuit, arbitration or other proceeding against any Released Party as a class action on behalf of any Class Member who have not timely excluded themselves (including by seeking to amend a pending complaint to include class allegations or seeking class certification in a pending action), based on the Released Claims. 9. In the event that the Settlement Agreement fails to become effective, is overturned on appeal, or does not become final for any reason, the Parties will be restored to their respective positions in the Action as of the date of the signing of the Agreement, and no reference to the Settlement Class, the Settlement Agreement, or any documents, communications, or negotiations related in any way thereto will be made for any purpose. 10. The Court, pending final determination of whether the Settlement should be approved, stays all proceedings except those related to effectuating the Settlement. Accordingly, the following table includes the deadlines by which certain events must occur: April 14, 2023 -- Deadline for notice to be provided in accordance with the Settlement Agreement and this Order (Notice Deadline) April 24, 2023 -- Deadline for filing of Plaintiffs' Motion for Attorneys' Fees and Costs and Service Award June 13, 2023 -- Deadline to file objections or submit requests for exclusion (Opt-Out or Objection Deadline) June 13, 2023 -- Deadline to submit a Claim (Claims Deadline) July 7, 2023 -- Deadline for Parties to file Motion in Support of Final Approval of Class Action Settlement, including responses to any objections July 21, 2023, at 9:00 a.m. -- Final Approval Hearing A full-text copy of the Order dated March 17, 2023, is available at https://tinyurl.com/2fh8brdw from Leagle.com. PORTFOLIO RECOVERY: Klimovich FDCPA Suit Removed to D. New Jersey ----------------------------------------------------------------- The case styled as Michael Klimovich, on behalf of himself and all others similarly situated v. Portfolio Recovery Associates, LLC, John Does 1-50, ABC Corp. 1-50, Case No. L 5232 22 was removed from the Superior Court of New Jersey, Essex County, to the U.S. District Court for the District of New Jersey on March 20, 2023. The District Court Clerk assigned Case No. 2:23-cv-01532 to the proceeding. The lawsuit is brought over alleged violation of the Fair Debt Collection Protection Act. Portfolio Recovery Associates, LLC (PRA Group, Inc.) -- https://www.portfoliorecovery.com/ -- is a publicly traded global debt buyer based in Norfolk, Virginia.[BN] The Plaintiff appears pro se. The Defendant is represented by: Stephen Steinlight, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 875 Third Avenue New York, NY 10022 Phone: (212) 704-6000 Email: Stephen.Steinlight@troutman.com PROGRESSIVE DIRECT: Elamin Files Suit in D. Idaho ------------------------------------------------- A class action lawsuit has been filed against Progressive Direct Insurance Company. The case is styled as Seiyid Elamin, individually and on behalf of all others similarly situated v. Progressive Direct Insurance Company, Case No. 1:23-cv-00037-BLW (D. Idaho, Jan. 23, 2023). The nature of suit is stated as Insurance for Breach of Contract. Progressive Direct Insurance Company -- https://www.progressive.com/ -- operates as an insurance company. The Company underwrites auto, fire, marine, and casualty insurance.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Mariam Grigorian, Esq. SHAMIS & GENTILE, PA 14 NE 1st Ave., Suite 705 Miami, FL 33132 Phone: (305) 479-2299 Fax: (786) 623-0915 Email: ashamis@shamisgentile.com mgrigorian@shamisgentile.com - and - Bonner Charles Walsh, Esq. WALSH PLLC 1561 LONG HAUL RD GRANGEVILLE, ID 83530 Phone: (541) 359-2827 Fax: (866) 503-8206 Email: bonner@walshpllc.com PROGRESSIVE DIRECT: Partial Bid to Toss Martorana Suit Partly OK'd ------------------------------------------------------------------ In the case, HAYLEY MARTORANA, individually and on behalf of all others similarly situated, Plaintiff v. PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant, Case No. 22-cv-10613-DJC (D. Mass.), Judge Denise J. Casper of the U.S. District Court for the District of Massachusetts allows in part and denies in part Progressive's partial motion to dismiss. Martorana has filed the putative class action lawsuit against Progressive alleging violations of Mass. Gen. L. c. 93A (Count I), breach of contract (Count II), and breach of the implied covenant of good faith and fair dealing (Count III) and seeking declaratory relief (Count IV). Progressive has moved for dismissal only as to Counts I and IV. Martorana was involved in an automobile collision on June 12, 2020 and sustained damage to her vehicle. She had first-party comprehensive and collision insurance coverage underwritten by Progressive, as a covered household family member under a policy purchased by Craig Martorana. Martorana made a property damage claim under the policy to Progressive. Pursuant to the policy, Progressive agreed to cover any direct and accidental damage to your auto caused by a collision" to a maximum amount of either the actual cash value ("ACV") of the auto or the cost to physically repair the auto, whichever is less. Additionally, the policy provides that sometimes there may be a disagreement as to the amount of money Progressive owes for losses or damage to an auto. If so, Massachusetts law provides for a method of settling the disagreement. Progressive determined the vehicle was a total loss and offered her the ACV of same. 19. To calculate its valuations and claim payments, Progressive employs a "total loss settlement process," which involves obtaining a "Vehicle Valuation Report" from Mitchell International, Inc. The reports contain values for comparable vehicles recently sold or currently for sale in the claimant's geographic area and calculates a valuation of the claimant's vehicle based upon the advertisements for the comparable vehicles. The reports then adjust the comparable vehicles' advertised prices to account for differences in equipment, mileage, and vehicle configuration. Id. Additionally, the reports make a further adjustment to the claimant's vehicle called a "Projected Sold Adjustment" ("PSA"), which is described as "an adjustment to reflect consumer purchasing behavior (negotiating a different price than the list price)." Martorana alleges that the PSA does not reflect market realities because prices are priced to market to reflect the intense competition in the context of Internet pricing and comparison shopping. During Martorana's purported class period, she alleges that car dealerships use sophisticated pricing software and now appraise vehicles before acquiring them to price them to market and do not negotiate from that price. Given this alleged reality, a negotiated discount off the cash price is highly atypical and is not proper to include in determining ACV. Martorana alleges that Progressive deviates from appraisal standards because the ACV thumbs the scales against the insured. Until July 2021, Progressive excluded from its PSA calculations all transactions in which the list price of a vehicle equaled the sold price. After July 2021, it still excludes some transactions in which the list price of a vehicle equals the sold price. Progressive excluded and continues to exclude transactions in which the sold price is greater than the list price. Its PSA calculations also does not take into account several considerations that could affect a list price. Mitchell's primary competitor, CCC Intelligent Solutions, Inc., does not apply PSAs in this manner; rather, it uses list prices. Progressive does not apply this PSA when valuing total losses in California or Washington. On July 7, 2020, Progressive provided Mitchell's Vehicle Valuation Report for Martorana's vehicle. In the report, PSAs in the amounts of -$749, -$629, -$664, -$643 -$679, -$679, -$742, -$639, -$635, and -$687, respectively, were applied to ten of the eleven comparable vehicles. If not for these PSAs, Martorana's ACV payment would have been $613.27 higher. In a letter sent on April 26, 2022, and received by Progressive on May 2, 2022, Martorana notified Progressive of her claims pursuant to Mass. Gen. L. c. 176D and Mass. Gen. L. c. 93A, Sections 2, 9. She instituted the action on April 25, 2022 and later amended her complaint. Progressive moves to dismiss only as to Counts I and IV. The Court heard the parties on the pending motion and took the matter under advisement. First, Progressive seeks dismissal of Count I of Martorana's amended complaint, alleging violations of Mass. Gen. L. c. 93A, which prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. To sustain such a claim, the plaintiff must prove (1) the defendant committed an unfair or deceptive act or practice; (2) the unfair or deceptive act or practice occurred in the conduct of any trade or commerce; (3) the plaintiff was injured; and (4) the defendant's unfair or deceptive act or conduct was the cause of the injury. Judge Casper finds no colorable dispute that the latter three elements of a 93A claim are plausibly alleged. The application of the PSA occurred in the conduct of trade or commerce, Martorana was injured because her ACV payment would have been $613.27 higher, and the application of the PSA caused her injury. The only remaining question regarding the 93A claim, therefore, is whether Martorana plausibly alleged an unfair or deceptive act or practice -- namely, the application of the PSA. The Plaintiff relies upon statutory -- specifically, subsections 3(9)(a), (c), and (g) of Chapter 176D -- and non-statutory concepts of unfairness and deception to allege that the PSA is unfair and/or deceptive. Judge Casper finds that (i) Martorana has sufficiently pled a violation of Chapter 93A based upon the predicate of a violation of Chapter 176D, Section 3(9)(a) because she has sufficiently alleged the misrepresentations are "deliberate" and made "in bad faith" and "with improper motive"; (ii) Martorana has not sufficiently pled a violation of Mass. Gen. L. c. 176D, Section 3(9)(c) because Progressive cites no caselaw, and the Court is aware of none, that requires plaintiffs proceeding under subsection (g) to allege other instances of litigation brought against the insurer under the same theories of liability; and offers no caselaw support for its position that a would-be plaintiff, who has received a settlement offer, is obligated to pursue alternative resolutions first, before instituting litigation; and (iii) Martorana has alleged an injury and the cases upon which Progressive relies do not stand for the proposition that the same facts or injury cannot undergird both a 93A claim and contractual claims. Accordingly, Progressive's motion to dismiss Martorana's 93A claim is allowed only to the extent she relied on Mass. Gen. L. c. 176D, Section 3(9)(c) and (g). Otherwise, the motion is denied. Second, Progressive seeks dismissal of Count IV of Martorana's amended complaint, requesting a declaratory judgment. Martorana's breach of contract claims alleges that Progressive failed to pay the ACV of her and Class members' vehicles because it applied an arbitrary and capricious PSA to comparable vehicles in order to reduce their market value and, as a result, its total-loss payments to insureds, failed to comply with Massachusetts law, and failed to pay her and each of the other Class members the promised ACV of their total-loss vehicles and thereby breached its contract with Plaintiff and each of the other Class members. Judge Casper says it is evident that Martorana's claim for declaratory relief is duplicative of her breach of contract claim. By the Court declaring that Progressive breached its contract, as well as Massachusetts law, it logically follows that this would necessarily resolve the breach of contract claim. The claims are, therefore, duplicative. Therefore, Martorana's request for declaratory relief, Count IV, is dismissed. For the foregoing reasons, Judge Casper allows Progressive's partial motion to dismiss as to Count I, only to the extent Count I relies upon Mass. Gen. L. c. 176D, Section 3(9)(c) and (g), and as to Count IV, the request for declaratory relief, and otherwise denies the motion. A full-text copy of the Court's March 10, 2023 Memorandum & Order is available at https://tinyurl.com/48cj5b6t from Leagle.com. PUP CULTURE: Vilella Sues Over Unpaid Overtime Compensations ------------------------------------------------------------ Ashley Vilella, on behalf of herself and others similarly situated v. PUP CULTURE LLC d/b/a PUPCULTURE, PUPCULTURE DUMBO LLC d/b/a/ PUPCULTURE DUMBO, PUPCULTURE FIDI LLC d/b/a/ PUPCULTURE FIDI, PUPCULTURE TRIBECA LLC d/b/a/ PUPCULTURE TRIBECA, PUPCULTURE UWS LLC d/b/a/ PUPCULTURE WEST 57, JOHN DOE CORPORATION d/b/a PUPCULTURE SOHO, and IBRAHIM ALIMIMEH, Case No. 1:23-cv-02291 (S.D.N.Y., March 17, 2023), is brought alleging, pursuant to the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"), to recover from the Defendants: unpaid overtime due to an improper straight time rate; unpaid spread of hours premiums; compensation for late payment of wages statutory penalties; liquidated damages; and attorney's fees and costs. The Defendants compensated the Plaintiff partially in cash and check. The Defendants issued a check made payable to the Plaintiff for hours worked that were 40 hours or less per work week. Hours worked in excess of 40 per work week were compensated in cash. The Defendants failed to properly provide the Plaintiff and Class members with proper wage notices when they were hired and annually thereafter. The Plaintiff did not receive any wage notice either upon being hired, annually since the date of hiring, or change of pay rate. The Defendants knowingly and willfully operated their business with a policy of not properly compensating Plaintiff, FLSA Collective Plaintiffs, and Class members for all their hours worked, including overtime, at either the FLSA overtime rate (of time and one-half) or the New York State overtime rate (of time and one-half). Defendants knowingly and willfully operated their business with a policy of not providing proper wage statements as required under New York Labor Law, says the complaint. The Plaintiff was hired by the Defendants to work as a Dog Walker at the Defendants' Pupculture Soho Facility. The Defendants own and operate day care services for dogs under the common brand Pupculture.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, Eighth Floor New York, NY 10011 Phone: 212-465-1180 Fax: 212-465-1181 PYRAMID OPERATING: Accord with IHOP Asst Managers OK'd ------------------------------------------------------ Chief District Judge Juan R. Sanchez for the Eastern District of Pennsylvania grants the unopposed Motion for Approval of Settlement filed by Plaintiffs Anthony Rodriguez and Ryan Wellcome in the case captioned as ANTHONY RODRIGUEZ and RYAN WELLCOME, individually and on behalf of all others similarly situated v. PYRAMID OPERATING GROUP, INC., ET AL, Civil Action No. 20-1207, (E.D. Pa.). Both Anthony Rodriguez and Ryan Wellcome, Assistant Managers at International House of Pancakes, brought this collective action under the Fair Labor Standards Act, seeking to recover unpaid overtime compensation on behalf of Assistant Managers employed at International House of Pancakes, operated by Defendants Pyramid Operating Group, Exton Operating Group, and HEM Management. Specifically, the Plaintiffs are seeking to recover unpaid overtime compensation for hours worked in excess of forty hours per week between Oct. 5, 2019 and Oct. 5, 2022. Two additional Assistant Managers opted into the action, and the Plaintiffs allege there are 28 others similarly situated. The Defendants denied the allegations, maintaining that all Assistant Managers were properly classified as overtime exempt pursuant to 29 U.S.C. Section 213(a)(1). On Feb. 2, 2022, the parties requested a stay of litigation to facilitate settlement negotiation. After an hours-long settlement conference before Judge Carlos on Oct. 6, 2022, the parties arrived at an agreement. Under the proposed Settlement Agreement, the Defendants will pay a total of $67,500 in four installments. The fund will be distributed as follows: (1) $34,000 to the Plaintiffs and 28 Putative Collective Members; (2) $5,000 in service awards to the Plaintiffs and the two Current Opt-Ins, Louis Gelsomini and Allyson Harms; (3) up to $5,000 to the Settlement Administrator, Analytics Consulting, LLC; and (4) $22,5000 to the Plaintiffs' Counsel for attorneys' fees and expenses. The Plaintiffs and Putative Collective Members will receive a pro-rata portion of the $34,000 based on the number of weeks they worked during the relevant time period. These payments are equivalent to one hour of overtime pay per week worked. In exchange, the Plaintiffs and Putative Collective Members will agree to release all claims against the Defendants related to past unpaid wages. In addition, the Agreement includes a confidentiality provision prohibiting parties from disseminating any information about the case beyond that which is already public. The Court finds the Settlement Agreement to be a fair and reasonable resolution of this dispute. Accordingly, the Court grants the Plaintiffs' Motion for Approval of Settlement. A full-text copy of the Memorandum dated March 17, 2023, is available at https://tinyurl.com/bdtu37cs from Leagle.com. QUALITY COMIX: Sookul Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Quality Comix, LLC. The case is styled as Sanjay Sookul, on behalf of himself and all others similarly situated v. Quality Comix, LLC, Case No. 1:23-cv-02397 (S.D.N.Y., March 21, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Quality Comix -- https://www.qualitycomix.com/ -- is America's number 1 online comic book store stocking the best in comics such as Batman, Superman, X-men, Avengers and more.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com RAC DEALERSHIP: Levine Sues Over Mass Layoff Without Proper Notice ------------------------------------------------------------------ JASON LEVINE, individually and on behalf of all others similarly situated, Plaintiff v. RAC DEALERSHIP, LLC, d/b/a AMERICAN CAR CENTER, Defendant, Case No. 2:23-cv-02150 (W.D. Tenn., March 17, 2023) is a class action against the Defendant for terminating approximately 288 employees at its facility, located at 6775 Lenox Center Ct., Memphis, Tennessee without providing 60 days advance written notice in violation of the Worker Adjustment and Retraining Notification Act. RAC Dealership, LLC, doing business as American Car Center, is a used car dealership company, with its principal place of business at 6400 Winchester Rd., Memphis, Tennessee. [BN] The Plaintiff is represented by: J. Gerard Stranch, IV, Esq. STRANCH, JENNINGS, & GARVEY, PLLC 223 Rosa Parks Ave. Suite 200 Nashville, TN 37203 Telephone: (615) 254-8801 Facsimile: (615) 255-5419 E-mail: gstranch@stranchlaw.com - and - Samuel J. Strauss, Esq. Raina C. Borrelli, Esq. TURKE & STRAUSS LLP 613 Williamson St., Suite 201 Madison, WI 53703 Telephone: (608) 237-1775 Facsimile: (608) 509-4423 E-mail: sam@turkestrauss.com raina@turkestrauss.com - and - Lynn A. Toops, Esq. Amina A. Thomas, Esq. COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 Telephone: (317) 636-6481 E-mail: ltoops@cohenandmalad.com athomas@cohenandmalad.com RAINBOW SYMPHONY: Cromitie Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Rainbow Symphony, Inc. The case is styled as Seana Cromitie, on behalf of herself and all others similarly situated v. Rainbow Symphony, Inc., Case No. 1:23-cv-02321 (S.D.N.Y., March 20, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Rainbow Symphony -- https://www.rainbowsymphony.com/ -- has a huge selection of diffraction, eclipse, rave, anaglyph & 3D glasses, rainbow suncatchers and more.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com REPUBLIC SERVICES: District Court Narrows Claims in Buffalo Suit ---------------------------------------------------------------- In the cases, Buffalo Seafood House, LLC, et al., Plaintiffs v. Republic Services, Inc., et al., Defendants. A+ Auto Service, LLC, Plaintiff v. Republic Services of South Carolina, LLC, Defendant, Case Nos. 7:22-cv-1242-RMG, 2:21-cv-01492-RMG (D.S.C.), Judge Richard Mark Gergel of the U.S. District Court for the District of South Carolina, Charleston Division, grants in part and denies in part the Defendants' Motion to Dismiss. The consolidated, near-nationwide putative class action pertains to allegations that Defendants overcharge their customers by increasing service rates by more than is allowed in a form contract entered with their customers and by imposing fees that are unrelated to the costs Defendants purport justifies them. Specifically, the Plaintiffs allege that Defendants violate the form contract and engage in deceptive and unfair conduct by systematically increasing rates by more than amounts needed to adjust for increases in certain costs. This is the rate increase issue. The Plaintiffs also challenge the Defendants' charging of Fuel/Environmental Recovery Fees under the form agreement as unrelated to the Defendants' actual fuel or environmental costs. This is the Fuel/Environmental Recovery fees issue. The Plaintiffs in the case are Buffalo Seafood House, LLC, a South Carolina LLC with its principal place of business in South Carolina; Budget Inns of Pensacola, Inc., a Florida corporation with a principal place of business in Florida; and Garibian & Associates Accountancy Corp., a California corporation with a principal place of business in California. The Plaintiffs seek to represent different Rate Increase and Fuel/Environmental Recovery Fee subclasses. Buffalo Seafood seeks to represent the South Carolina Rate Increase and South Carolina Fuel/Environmental Recovery Fee Subclasses. Budget Inns seeks to represent the Florida Rate Increase and Florida Fuel/Environmental Recovery Fee Subclasses. Garibian Associates seeks to represent the California Rate Increase and California Fuel/Environmental Recovery Fee Subclasses. The Defendants in the case are Republic Services, Inc. ("RSI"), Republic Services of South Carolina, LLC ("RSSC"), Browning-Ferris Industries of Florida, Inc., and Allied Waste Systems, Inc. All of the Defendants are incorporated in Delaware and have a principal place of business in Arizona. The Plaintiffs allege that RSI wholly owns all of its subsidiaries including the subsidiaries named in this case, RSSC, Browning-Ferris, and Allied Waste. They also allege that RSI's subsidiaries are mere alter egos of RSI. Based on these allegations, the Plaintiffs have asserted eight counts against Defendants that are organized as follows: Count I - Breach of Contract (Rate Increases) (All Plaintiffs v. All Defendants); Count II - Breach of the Duty of Good Faith and Fair Dealing (Rate Increases) (All Plaintiffs v. All Defendants); Count III - Unjust Enrichment (Rate Increases) (All Plaintiffs v. All Defendants); Count IV - Violation of Florida Deceptive and Unfair Trade Practices Act (FDUTPA) (Rate Increases) (Budge Inns v. All Defendants); Count V - Violation of California Unfair Competition Law (CUCL) (Rate Increases) (Garibian Associates v. All Defendants); Count VI - Unjust Enrichment Recovery Fees (Fuel/Environmental) (All Plaintiffs v. All Defendants); Count VII - Violation of Florida Recovery Fees Deceptive and Unfair Trade Practices Act (FDUTPA) (Fuel/Environmental) (Budge Inns v. All Defendants); Count VIII - Violation of Recovery Fees California Unfair Competition Law (CUCL) (Fuel/Environmental) (Garibian Associates v. All Defendants). The Defendants now move to dismiss certain defendants and claims. First, they assert that the Court lacks personal jurisdiction over two non-South Carolina Defendants, Browning-Ferris and Allied Waste. Second, they assert RSI, Browning-Ferris, and Allied Waste are not proper Defendants because none of those entities are party to any of the underlying contracts. Third, they ask the Court to dismiss the Plaintiff's unjust enrichment claims because the Plaintiffs have plead the existence of express contracts. Fourth, the Defendants contend that Budget Inns' (Florida) and Garibian Associates' (California) claims should be dismissed under Florida and California unfair practices law. The parties have completed briefing on these issues. First, the Defendants asked the Court to dismiss Browning Ferris and Allied Waste for lack of jurisdiction. They argued that these Defendants should be dismissed in part because Browning Ferris and Allied Waste were not contracting parties with any of the Plaintiffs. Based on this representation, the Plaintiff did not oppose the dismissal of Browning Ferris and Allied Waste without prejudice and indicated that they only named these two Defendants based on information and knowledge available at the time of filing the complaint. Because the Plaintiffs do not oppose the dismissal of Defendants Browning Ferris and Allied Waste, Judge Gergel dismisses Browning Ferris and Allied Waste without prejudice. Second, the Defendants argue that RSI cannot be held liable for any breach of contract because RSI is not a contracting party. Additionally, they argue that Plaintiffs Budget Inns' and Garibian Associates' claims cannot proceed because the Plaintiffs failed to allege an alter ego that entered into a contract with Budget Inns or Garibian Associates'. Judge Gergel finds that the Plaintiffs have sufficiently alleged that RSSC is an alter-ego of RSI for Buffalo Seafood's claims to survive dismissal. He also finds that Budget Inns and Garibian Associates' cannot allege an alter ego theory of piercing the corporate veil because Plaintiffs have agreed to the dismissal of Browning-Ferris and Allied Waste, the subsidiaries whose veil Plaintiffs seek to pierce. Similarly, because Allied Waste, now dismissed, was the only California corporation named in the Complaint, Garibian Associates', who seeks to represent the California subclass, breach of contract claim against RSI is dismissed. Third, the Defendants argue that the Plaintiffs' FDUTPA and CUCL claims must be dismissed for failure to plead with particularity as required under Fed. R. Civ. P. 9(b), and for failure to adequately allege an unfair or deceptive act or omission, or causation, as required to state a claim under the statute. Based on these allegations, Judge Gergel finds that the Plaintiffs have satisfied Rule 9(b) because the complaint provides Defendants with adequate notice of the nature of the Plaintiffs' claim and the ground upon which it is based. The rationale behind Rule 9(b) has also been satisfied. Additionally, a Rule 9(b) dismissal would not protect against a frivolous suit because the Plaintiffs' other claims, which are based on the same conduct, would remain. Similarly, the Defendants will not experience harm to their goodwill and reputation because Plaintiffs other claims are based on the same conduct as their fraud-based claims. Accordingly, the Plaintiffs' FDUTPA and CUCL claims against RSI3 survive. Fourth, the Defendants assert that the Plaintiffs cannot maintain an action for unjust enrichment because they claim they are parties to an express contract. The Plaintiffs submit that unjust enrichment causes of action are pleaded in the complaint in the alternative to the breach of contract causes of action. Judge Gergel finds that the Plaintiffs properly pled unjust enrichment in the alternative and denies Defendants' motion as to this issue. He holds that generally, a party is not required to make an election of remedies until after the verdict is entered and prior to the entry of judgment. For the forgoing reasons, Judge Gergel grants in part and denies in part the Defendants' Motion to Dismiss. Defendants Browning Ferris and Allied Waste are dismissed from all claims. Plaintiffs Garibian Associates' and Budget Inns' Breach of Contract Claim (Count I), Breach of the Duty of Good Faith and Fair Dealing Claim (Count II), and Unjust Enrichment Claims (Counts III and VI) are dismissed. Plaintiff Buffalo Seafood's Counts I, II, III and VI against Defendants RSSC and RSI survive. Defendant RSSC is dismissed from Counts IV, V, VII, and VIII. Plaintiff Budget Inns' FDUTPA Claims (Counts IV and VII) against RSI survive. And Plaintiff Garabian Associates' CUCL Claims (Counts V and VIII) against RSI survive. A full-text copy of the Court's March 14, 2023 Order & Opinion is available at https://tinyurl.com/2p9hz4c3 from Leagle.com. REVOLUTION PREP: Fails to Pay Telephone Salespeoples' OT Wages -------------------------------------------------------------- KRISTIN SEACAT, on behalf of herself and all similarly situated employees v. REVOLUTION PREP, LLC, Case No. 3:23-cv-00247 (M.D. Tenn., Mar. 20, 2023) seeks to remedy the Defendants' violations of the Fair Labor Standards Act of 1938 by misclassifying the Plaintiff and other employees as exempt from receiving overtime compensation when the Plaintiffs and other similarly situated employees were telephone salespeople entitled to overtime. This collective action seeks to recover unpaid overtime for Plaintiff and similarly situated current and former Revolution Prep telephone salespeople in Tennessee -- in roles including but not limited to Learning Success Manager, Academic Advisor, and Academic Specialist -- whose commissions did not exceed half their total earnings during the three years before the filing of this Complaint, the lawsuit says. Ms. Seacat worked remotely from her home or similar locations in Middle Tennessee during her entire tenure with Revolution Prep as a telephone salesperson. Her primary job duty was calling third parties via telephone or internet videoconference to sell Revolution Prep's tutoring and test-prep services. Accordingly, the Defendant knew that Ms. Seacat, as well as other similarly situated employees, regularly worked more than 40 hours per workweek. The Defendant allegedly did not pay Ms. Seacat or other similarly situated employees overtime compensation for hours worked over 40 in a workweek at 1.5 times their regular rates of pay. The misclassification caused Plaintiff and the Putative Class damages, namely unpaid overtime compensation, liquidated damages, and attorneys' fees and costs, the lawsuit claims. Ms. Seacat worked for Revolution Prep as a telephone salesperson from September 2021 until September 2022. Her roles included Learning Success Manager, Academic Advisor, and Academic Specialist. Revolution Prep sells live, online professional tutoring services to the public.[BN] The Plaintiff is represented by: Charles P. Yezbak, III Melody Fowler-Green N. Chase Teeples YEZBAK LAW OFFICES PLLC 2021 Richard Jones Road, Suite 310-A Nashville, TN 37215 Telephone: (615) 250-2000 Facsimile: (615) 250-2020 E-mail: yezbak@yezbaklaw.com teeples@yezbaklaw.com RIVERVIEW SUNSHINE: Faces Remus Suit Over Unlawful Debt Collection ------------------------------------------------------------------ LISA REMUS, individually and on behalf of all others similarly situated, Plaintiff v. RIVERVIEW SUNSHINE INVESTMENTS, LLC, Defendant, Case No. 23-001459-CI (Fla. Cir. Ct., 6th Jud. Cir., Pinellas Cty., March 17, 2023) is a class action against the Defendant for violations of the Florida Consumer Collections Practices Act. The case arises from the Defendant's alleged unlawful practice of collecting consumer debt by sending communications between the hours of 9 p.m. and 8 a.m. The Plaintiff and similarly situated consumers in Florida never provided the Defendant with consent authorizing to transmit debt collection communications to them between the hours of 9 p.m. and 8 a.m. As a result, the Plaintiff and Class members are harmed including statutory damages, inconvenience, stress, disruption of peace, invasion of privacy, aggravation, nuisance, and annoyance. Riverview Sunshine Investments, LLC is a debt collector based in Florida. [BN] The Plaintiff is represented by: Zachary Z. Zermay, Esq. ZERMAY-LAROSIERE 3000 Coral Way, Suite 1115 Miami, FL 33145 Telephone: (310) 752-9728 E-mail: zach@zermaylaw.com - and - Matthew Larosiere, Esq. ZERMAY-LAROSIERE 3000 Coral Way, Suite 1115 Miami, FL 33145 Telephone: (310) 752-9728 E-mail: info@zermaylaw.com RUGSUSA LLC: Overcharges on Products Purchased Online, Wiley Claims ------------------------------------------------------------------- CHRISTINA WILEY, individually and on behalf of all others similarly situated, Plaintiff v. RUGSUSA, LLC, Defendant, Case No. 3:23-cv-01560 (D.N.J., March 20, 2023) is a class action against the Defendant for violation of the Missouri Merchandising Practices Act, unjust enrichment, and for money had and received. According to the complaint, the Defendant illegally and erroneously overcharges tax monies at a higher tax rate than the correct applicable use tax rate on products purchased through remote sales channels, including from RugsUSA's internet website, that are shipped to Missouri customers from an out-of-state facility. As a result, the Plaintiff and similarly situated customers have suffered injury by being charged a higher tax rate on sales of products, says the suit. RugsUSA, LLC is a rug manufacturer, with its principal place of business in Cranbury, New Jersey. [BN] The Plaintiff is represented by: Yitzchak Kopel, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: ykopel@bursor.com SANTA MONICA, CA: Class Certification Bid Cutoff Moved to Sept. 5 ----------------------------------------------------------------- In the class action lawsuit captioned as BLACK LIVES MATTER LOS ANGELES, an organization, DAVID BROWN, DAVID CLENNON, and KERRY HOGAN, all individually and on behalf of a class of similarly situated persons, v. CITY OF SANTA MONICA, a municipal entity, CHIEF CYNTHIA RENAUD, and DOES 1 TO 10, inclusive, Case No. 2:21-cv-05253-CAS-AFM (C.D. Cal.), the Hon. Judge Christina A. Snyder entered an order granting stipulated request to revise the scheduling dates, which was previously entered by the Court on February 27, 2023. – Opposition to Class Certification Motion Cutoff be moved from May 8, 2023, until July 24, 2023. -- Class Certification Motion Cutoff be moved from March 27, 2023, until September 5, 2023. -- Reply to Class Certification Motion Cutoff be moved from May 22, 2023, until September 18, 2023. -- Hearing on Class Certification Motion be moved from June 5, 2023, until October 2, 2023, at 10:00 A.M. A copy of the Court's order dated March 10, 2023 is available from PacerMonitor.com at https://bit.ly/3JWcpT0 at no extra charge.[CC] The Plaintiffs are represented by: Erin Darling, Esq. LAW OFFICES OF ERIN DARLING Erin@ErinDarlingLaw.com 3435 Wilshire Blvd. Suite 2910 Los Angeles, CA 90010 Telephone: (323) 736-2230 - and - Paul Hoffman, Esq. Michael Seplow, Esq. Aidan McGlaze, Esq. John Washington, Esq. SCHONBRUN, SEPLOW, HARRIS & ZELDES LLP 9514 Culver Blvd., No. 115 Culver City, CA 90230 Telephone: (310) 396-0731 E-mail: hoffpaul@aol.com jwashington@sshhlaw.com - and - Carol A. Sobel, Esq. Katherine L. Robinson, Esq. Weston Rowland LAW OFFICES OF CAROL A. SOBEL 1158 26th Street, No.552 Santa Monica, CA 90403 Telephone: (310) 393-3055 E-mail: carolsobel@aol.com klrobinsonlaw@gmail.com rowland.weston@gmail.com SASB CORPORATION: Medical Security Files Suit in D. Delaware ------------------------------------------------------------ A class action lawsuit has been filed against SASB Corporation. The case is styled as Medical Security Card Company, LLC, Petitioner v. SASB Corporation doing business as: Okeechobee Discount Drug, individually and as the representative of a class of similarly situated persons, Respondent, Case No. 1:23-mc-00161-UNA (D. Del., March 21, 2023). The nature of suit is stated as Other Statutory Actions for Motion to Quash. SASB Corporation is doing business as Okeechobee Discount Drug -- https://www.okeechobeebusiness.com/ -- is a Pharmacy in Okeechobee, Florida.[BN] The Petitioner is represented by: Stephanie Ann Fox, Esq. Kiadii Harmon, Esq. MARON MARVEL BRADLEY ANDERSON & TARDY 1201 N. Market Street, Suite 1100 Wilmington, DE 19801 Phone: (302) 472-1739 Email: saf@maronmarvel.com kharmon@mcgivneyandkluger.com SAVING ARIZONA PAC: Crawford Files TCPA Suit in D. Arizona ---------------------------------------------------------- A class action lawsuit has been filed against Saving Arizona Pac, et al. The case is styled as Patricia Crawford, for herself and on behalf of all others similarly situated v. Saving Arizona Pac; Unknown Parties, John & Jane Does 1-10; and Does 110, Case No. 2:23-cv-00486-JJT (D. Ariz., March 21, 2023). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Saving Arizona PAC is a political action committee with at least $13.5 million in backing from billionaire Peter Thiel.[BN] The Plaintiff is represented by: Jon Laurence Phelps, Esq. PHELPS & MOORE PLLC - SCOTTSDALE 6424 E Greenway Pkwy., Ste. 100 Scottsdale, AZ 85254 Phone: (480) 534-1400 Fax: (480) 477-3900 Email: jon@phelpsandmoore.com SHARK EYES: Cromitie Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Shark Eyes, Inc. The case is styled as Seana Cromitie, on behalf of herself and all others similarly situated v. Shark Eyes, Inc., Case No. 1:23-cv-02324 (S.D.N.Y., March 20, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Shark Eyes -- https://www.sharkeyes.com/ -- is one of the largest distributors of eye-wear with the best deals on bulk wholesale sunglasses, wholesale reading glasses, and displays.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com SNAPDOODLE TOYS: Campbell Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Snapdoodle Toys, LLC. The case is styled as Jovan Campbell, on behalf of herself and all others similarly situated v. Snapdoodle Toys, LLC, Case No. 1:23-cv-02285 (S.D.N.Y., March 17, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Snapdoodle Toys and Games -- https://snapdoodletoys.com/ -- is a Western Washington toy store focused on being local.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com SOUTHWEST AIRLINES: Bid to Compel Arbitration in Saxon Suit Granted ------------------------------------------------------------------- In the case, LATRICE SAXON, individually and on behalf of all others similarly situated, Plaintiff v. SOUTHWEST AIRLINES CO., Defendant, Case No. 19-cv-00403 (N.D. Ill.), Judge Sharon Johnson Coleman of the U.S. District Court for the Northern District of Illinois, Eastern Division: a. grants Southwest's renewed motion to compel arbitration; and b. strikes as moot Southwest's renewed motion to strike collective action allegations and the Plaintiff's renewed motion to equitably toll the statute of limitations for all putative members of the FLSA collective action. Since Saxon first filed her complaint in June 2019, the parties have litigated before Judge Dow, twice before the Seventh Circuit Court of Appeals, and before the U.S. Supreme Court. Most recently, the parties argued the three pending motions before the Court. Saxon was, and still is, a ramp supervisor for Southwest. It is undisputed that Saxon signed an Alternative Dispute Resolution Program ("ADR") contract each year from 2017 to 2020. The ADR contains provisions requiring Southwest employees to individually arbitrate their claims, as well as a "waiver of class/collective action" provision, mandating that no claim be brought as a class action in judicial action or arbitration. Nonetheless, in June 2019, Saxon filed her Fair Labor Standards Act ("FLSA") claim, under 29 U.S.C. Section 201 et seq., in federal court on behalf of herself and a class of similarly situated individuals. She claimed that Southwest required ramp supervisors to work before the start and during the meal breaks of their scheduled shifts but failed to pay them for this time. Four months later, Southwest moved to dismiss or stay the case in favor of arbitration. Pursuant to Rule 12(b)(3), Southwest argued that the Federal Arbitration Act ("FAA"), 9 U.S.C. Section 1 et seq., required Saxon to arbitrate her claims and that federal court was thus the improper venue for the suit. Southwest also contended that class claims must be dismissed because the ADR prohibits Saxon from bringing class claims. Saxon responded to this motion by requesting discovery, arguing that she was exempt from arbitration under Section 1 of the FAA, which provides that nothing herein contained will apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce. Judge Dow subsequently ordered that discovery and briefing be limited to one issue: whether Saxon qualified for this exemption. On Oct. 8, 2019, Judge Dow found that Saxon was not exempt and was required to arbitrate her claims. Saxon appealed this decision to the Seventh Circuit. The parties subsequently argued the issue before two different appellate panels, who ultimately held that Saxon qualified for the FAA exemption. Upon remand, the parties filed motions to compel arbitration, strike collective allegations, and toll the statute of limitations. Southwest concurrently appealed the Seventh Circuit decision to the Supreme Court, which granted certiorari. In the interim, Judge Dow struck the motions with leave to refile instanter after the Supreme Court decided the case. In June 2022, the Supreme Court affirmed the Seventh Circuit's opinion in Southwest Airlines Co. v. Saxon, 142 S.Ct. 1783, 213 L. Ed. 2d 27 (2022). One month later, the parties filed their renewed motions in the district court. Southwest contends that, despite the Supreme Court's ruling, Saxon is still required to arbitrate her claims; but now, Southwest argues that arbitration is required under the Illinois Uniform Arbitration Act ("IUAA"). The parties do not dispute that Saxon signed the ADR agreement nor that the requirements for forming a contract have been met. Saxon, however, maintains that Southwest waived the right to arbitrate under the IUAA because it did not raise this argument in their initial motion to compel arbitration, and, in the alternative, claims that the ADR is unenforceable under Illinois contract law. Judge Coleman finds that over the course of the past four years, the focus of the dispute has been on the right to arbitrate. Indeed, Southwest has mentioned its desire to arbitrate at every turn. She says although there is a case to be made, as Saxon has thoughtfully done, that this state law argument could have been brought at the beginning of this case (perhaps preventing the need for years of costly appeals), she does not find that this bars Southwest from moving to compel arbitration under the IUAA now. Even though it has taken years, Southwest has been diligently pursuing its right to arbitrate, all the way to the Supreme Court. As a result, Judge Coleman finds that Southwest has not waived their right to arbitrate. Judge Coleman then evaluates Saxon's alternative argument: whether the ADR is enforceable. According to Southwest, Saxon is still required to arbitrate the case, even after the Supreme Court's decision, because she signed an enforceable contract under Illinois state law. Saxon argues that the ADR is unenforceable: specifically, that the ADR is substantively unconscionable and does not comply with the Illinois Workplace Transparency Act ("WTA"), 820 ILCS 96/1 et seq. She points to specific contract provisions to demonstrate that the contract is unconscionable: first, that discovery is limited to one deposition, five interrogatories, and three requests for production, and second, that Southwest is entitled to attorneys' fees if the employee pursues a claim in court rather than through arbitration. Judge Coleman finds that neither provision makes the ADR substantively unconscionable. In addition, she finds that the agreement is not so one-sided given that the ADR requires that both parties abide by these limitations and permits the arbitrator to seek additional depositions as needed. As for her attorneys' fee claim, Saxon effectively brings a cost limitation argument. Although the ADR states that Southwest is entitled to reasonable attorneys' fees incurred when enforcing the ADR program in court, Southwest has affirmed that it will not request these fees. As a result, the risk that Saxon will face prohibitively high attorneys' fees is only speculative, and insufficient to show that the provision is substantively unconscionable. Lastly, Saxon contends that the WTA prohibits arbitration agreements of the sort Saxon signed. She contends that signing the ADR is a unilateral condition of employment that requires workers to submit unlawful employment practices claims to arbitration (such as Age Discrimination in Employment Act claims), thus violating the WTA. However, Saxon's claims are not -- nor does she make them out to be—related to unlawful employment practices as defined by the WTA, Judge Coleman opines. Therefore, the case is not within the scope of the WTA. As a result, the ADR is enforceable and Saxon must pursue her case through arbitration. For these reasons, Judge Coleman grants Southwest's motion to compel arbitration and stays current proceedings as the parties continue with arbitration. Because the case will proceed via arbitration, the two pending motions are struck as moot. A full-text copy of the Court's March 10, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/3js94ufr from Leagle.com. SUPERCELL INC: Court Trims Claims in Video Game Purchases Suit -------------------------------------------------------------- Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California grants in part and denies in part the motion to dismiss filed by the Defendant Supercell, Inc. in the case captioned as T.T., Plaintiff, v. SUPERCELL, INC., Defendant, Case No. 22-cv-03196-HSG, (N.D. Cal.) T.T., a minor, alleges that Defendant Supercell, Inc. has engaged in deceptive and misleading marketing for in-game items and in-game currency for its video games Clash of Clans, Clash Royale, and Brawl Stars. Although the games are free to play, the Plaintiff alleges they "are monetized through a system where players can obtain new upgrades, characters, chests, weapons, costumes, and other resources in exchange for virtual currency," referred to as "Gems." "The in-game currency can be purchased from Defendant using real money." The Plaintiff alleges he has "made multiple in-game purchases of Gems in the Games, using his money" and "on his own account." He asserts that "despite spending money on in-game purchases, the Plaintiff did not receive any items that had real value." The Plaintiff contends he is entitled to a refund because his contract with the Defendant is "voidable" under California law because a minor has "the right to disaffirm contracts," or alternatively, his contract is "void." Under California law, a minor cannot enter into a contract "relating to any personal property not in the immediate possession or control of the minor." The Plaintiff suggests that he was misled by the language in the Terms of Service into believing that he was not entitled to a refund of his purchases. In the motion to dismiss, the Defendant contends the Plaintiff cannot pursue claims as to Clash of Clans or Brawl Stars because he does not allege that he played or made in-game purchases in either game. In the complaint, the Plaintiff only states he "made multiple in-game purchases in Clash Royale." But the Plaintiff asserts the nature of in-game purchases is the same across the three games. The Plaintiff also contends -- and the Defendant appears to agree -- that the Terms of Service apply to all three games. The Plaintiff challenges these Terms of Service, which do not contain notice of or a mechanism for minors to receive refunds for their purchases. The Court finds that this is sufficient at this stage and denies the motion on this basis. The Defendant next argues the Plaintiff has not established that he suffered an economic injury as required to have standing under California's Unfair Competition Law. The Plaintiff responds that his economic injury "stems from the Defendant's unlawful retention of monies he is entitled to in light of the fact that his purchases from the Defendant were either (1) void ab initio, or (2) have been disaffirmed but not refunded." The Court denies the motion on this basis because the Plaintiff has pled enough to establish an economic injury. The Defendant also argues the Plaintiff lacks standing to seek injunctive relief. The Plaintiff alleges he "no longer plays the Games and will not play the Games in the future." The Court is not aware of -- and the Plaintiff does not cite -- any authority supporting such a broad interpretation of future injury. The Court finds that the Plaintiff's reliance on Doe v. Epic Games, Inc., 435 F.Supp.3d 1024, 1032 (N.D. Cal. 2020), is misplaced because the court in this case did not address the question of standing to seek injunctive relief at all. The Court accordingly grants the motion to dismiss on this basis. The Court notes that the three "prongs" of California's Unfair Competition Law are independent of each other and may be asserted as separate claims. The "unlawful" prong of the UCL incorporates other laws and treats violations of those laws as unlawful business practices independently actionable under state law. The "unfair" prong treats as actionable conduct that "violates established public policy or. . . is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits." In the instant case, the Defendant contends that the Plaintiff cannot state a claim under any of the three prongs. The Plaintiff states that he "concedes his claims under the UCL's `fraudulent' prong." The Court therefore grants the motion to dismiss on this basis and only considers the unlawful and unfair prongs. The Plaintiff further argues that his in-game purchases are void under Cal. Fam. Code Section 6701 and voidable under Cal. Fam. Code Section 6710. The Plaintiff points out that although the Defendant knew about these statutory provisions, the Terms of Service misled him and putative class members by explicitly stating that all purchases are final and non-refundable. The Defendant maintains that the Plaintiff's in-game purchases are not "personal property" because they do not give Plaintiff ownership rights over any items, but only a contractual "right to use" them in the games. Moreover, the Plaintiff alleges he has the right to disaffirm his in-game purchases under California Family Code Section 6710. The Defendant appears to acknowledge that Plaintiff has the right to disaffirm at least some of his purchases and suggests that it is willing to refund Plaintiff's unused gems if he follows a specific process. The Court is not definitively concluding that Section 6701(c) and/or Section 6710 apply to the circumstances of this case. Rather, the specific arguments that the Defendant raises in its motion to dismiss appear to rest on factual assumptions outside the scope of the complaint. As such, the Court finds that they are better addressed on a more fulsome record at summary judgment. The Court limits its inquiry to the allegations in the complaint and finds that the Plaintiff has done enough to allege plausible claims under California's Unfair Competition Law. Whether those claims have substantive merit is for a later day. The Plaintiff further alleges that the Defendant was unjustly enriched through its policy of not offering refunds for in-game purchases to minors, and he seeks to recover all revenue acquired from purchases as a result of this policy. The Plaintiff alleges the Defendant was able to retain Plaintiff's money from these purchases by misleading Plaintiff into believing that they were non-refundable, even for minors. The Court finds that these allegations are sufficient at this stage and denies the motion on this basis. A full-text copy of the Order dated March 17, 2023, is available at https://tinyurl.com/ycxj7fmj from Leagle.com. UNITED NATURAL: Faces Sills Suit Over 28.1% Stock Price Drop ------------------------------------------------------------ DAN SILLS, individually and on behalf of all others similarly situated v. UNITED NATURAL FOODS, INC., STEVEN L. SPINNER, J. ALEXANDER MILLER DOUGLAS, and JOHN W. HOWARD,, Case No. 1:23-cv-02364 (S.D.N.Y., Mar. 20, 2023) is a class action on behalf of persons and entities that purchased or otherwise acquired United Natural Foods securities between March 10, 2021 and March 7, 2023, inclusive, pursuant to the Securities Exchange Act of 1934. On June 9, 2021, United Natural Foods announced its third quarter 2021 financial results in a press release. It claimed that the "focus on operational efficiencies and its ValuePath productivity initiative keep us on track to deliver full-year results at the upper end of the range for adjusted EBITDA and adjusted EPS." On September 28, 2021, United Natural Foods held a conference call in connection with its fourth quarter and full year 2021 financial results. During the call, Defendant Howard stated that "fourth-quarter gross margin rate increased seven basis points compared to last year's fourth quarter, driven by the benefits from our Value Path initiatives, partially offset by a higher year-over-year LIFO charge." On December 8, 2021, the Company announced its first quarter 2022 financial results in a press release that touted gross margin improvement due to the ValuePath initiative. On March 8, 2023, before the market opened, United Natural Foods announced its second quarter 2023 financial results, revealing a $6 million decline in gross profit, despite a 6% increase in net sales. On this news, the Company's stock price fell $11.49, or 28.1%, to close at $29.47 per share on March 8, 2023, thereby injuring investors. Throughout the Class Period, the Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants allegedly failed to disclose to investors: -- that, despite its cost saving Value Path initiative, United Natural Foods had not invested in improving its data management and related infrastructure; and -- that, as a result, the Company could not respond adequately to cost changes, such as inflationary pressure. In ignorance of the fact that market prices of the Company's securities were artificially inflated, and relying directly or indirectly on the false and misleading statements made by Defendants, or upon the integrity of the market in which the securities trades, and/or in the absence of material adverse information that was known to or recklessly disregarded by the Defendants, but not disclosed in public statements by the Defendants during the Class Period, the Plaintiff and the other members of the Class acquired United Natural Foods' securities during the Class Period at artificially high prices and were damaged thereby, the suit asserts. United Natural Foods is a distributor of natural, organic, specialty, produce and conventional grocery and non-food products. [BN] The Plaintiff is represented by: Gregory B. Linkh, Esq. Robert V. Prongay, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 230 Park Ave., Suite 358 New York, NY 10169 Telephone: (212) 682-5340 Facsimile: (212) 884-0988 E-mail: glinkh@glancylaw.com - and - Howard G. Smith, Esq. LAW OFFICES OF HOWARD G. SMITH 3070 Bristol Pike, Suite 112 Bensalem PA 19020 Telephone: (215) 638-4847 Facsimile: (215) 638-4867 UNITED STATES: Althouse Appeals Suit Dismissal to 5th Cir. ---------------------------------------------------------- Kevin R. Althouse is taking an appeal from a court order in his lawsuit entitled Kevin R. Althouse, individually and on behalf of all others similarly situated, Plaintiff, v. United States of America, et al., Defendants, Case No. 3:22-CV-388, in the U.S. District Court for the Northern District of Texas. This suit is a Prisoner Civil Rights action. On March 25, 2022, Senior Judge A. Joe Fish entered a judgment summarily dismissing with prejudice this action is as frivolous until such time as the Plaintiff satisfies the conditions set forth in Heck v. Humphrey, 512 U.S. 477 (1994). The appellate case is captioned Althouse v. USA, Case No. 23-10282, in the United States Court of Appeals for the Fifth Circuit, filed on March 21, 2023. [BN] Plaintiff-Appellant KEVIN R. ALTHOUSE, individually and on behalf of all others similarly situated, appears pro se. VIDA SHOES: Faces Ringler Class Suit Over Unsolicited Text Messages ------------------------------------------------------------------- ADINA RINGLER, individually and on behalf of all others similarly situated v. VIDA SHOES INTERNATIONAL, INC. d/b/a STRIDE RITE,, Case No. 2:23-cv-02046 (C.D. Cal., Mar. 20, 2023) contends that the Defendant promotes its goods, in part, by sending unsolicited text messages to wireless phone users, in violation of the Telephone Consumer Protection Act. The Plaintiff contends that the Defendant engages in aggressive unsolicited marketing, harming thousands of consumers in the process. Beginning February 2, 2021 and continuing up through December 12, 2022, the Defendant began bombarding the Plaintiff with telemarketing text messages to Plaintiff's cellular telephone number ending in 9426. The Defendant did not provide the Plaintiff and the Class members with instructions on how to opt-out of future text messages. At no point in time did the Plaintiff provide Defendant with her express written consent to be contacted, says the suit. Accordingly, the Plaintiff registered her 9426 Number with the national do not call registry on January 24, 2006 and has been registered at all times relevant hereto. Through this action, Plaintiff seeks injunctive relief to halt Defendant's illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals. The Plaintiff also seeks statutory damages on behalf of herself and members of the Class, and any other available legal or equitable remedies. The Plaintiff is a natural person who was a resident of Los Angeles County, California. Vida Shoes is an online shoe retailer.[BN] The Plaintiff is represented by: Scott Edelsberg, Esq. EDELSBERG LAW, P.A. 1925 Century Park E No. 1700 Los Angeles, CA 90067 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com WALMART INC: Faces Rivera Suit Over Mislabeled Apple Juice Products ------------------------------------------------------------------- Sal Rivera, individually and on behalf of all others similarly situated v. Walmart Inc., Case No. 8:23-cv-00618-MSS-AEP (M.D. Fla., Mar. 20, 2023) alleges that the Defendant manufactures, labels and sells apple juice promoted as containing "Vitamin C," which fails to disclose chemical preservatives, under the Great Value brand. Ascorbic acid is a chemically modified form of vitamin C, used in apple juice as a preservative. Ascorbic acid is known as an anti-browning agent, preserving the naturally light color of apple juice for a longer period of time after it was first made. The result is that the Product can be successfully sold to consumers for longer periods of time because it remains visually appealing after the point which it would not be in the absence of ascorbic acid. The Plaintiff relied on the words, terms coloring, descriptions, layout, placement, packaging, tags, and/or images on the Product, on the labeling, statements, omissions, claims, statements, and instructions, made by the Defendant or at its directions, in digital, print and/or social media, which accompanied the Product and separately, through in-store, digital, audio, and print marketing, the suit claims. As a result of the false and misleading representations, the Product is sold at premium price, approximately no less than $1.98 per 64 FL OZ, excluding tax and sales. The value of the Product that the Plaintiff purchased was materially less than its value as represented by the Defendant, the suit adds. The Plaintiff purchased the Product on one or more occasions at Defendant's stores, at locations such as 1505 N Dale Mabry Hwy, Tampa, FL 33607, between 2021 and 2023, among other times. Walmart is an American multinational retail corporation that operates a chain of over 5,000 supercenters throughout the nation, selling everything from furniture to groceries.[BN] The Plaintiff is represented by: Alexander J. Korolinsky, Esq. AJK LEGAL 1580 Sawgrass Corporate Pkwy Ste 130 Sunrise FL 33323 Telephone: (877) 448-8404 E-mail: korolinsky@ajklegal.com - and - Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com WEGMANS FOOD: Santiful Suit Dismissed Without Leave to Replead -------------------------------------------------------------- In the case, VALERIE SANTIFUL and TAMEKA RHODEN, individually and on behalf of all others similarly situated, Plaintiffs v. WEGMANS FOOD MARKETS, INC., Defendant, Case No. 20-CV-2933 (NSR) (S.D.N.Y.), Judge Nelson S. Roman of the U.S. District Court for the Southern District of New York grants the Defendant's motion to dismiss Plaintiffs' Second Amended Complaint. Plaintiffs Valerie Santiful and Tameka Rhoden, individually and on behalf of others similarly situated, bring the putative class action against Wegmans asserting that the Defendant's Gluten Free Vanilla Cake Mix is labeled in a way that is misleading to consumers. Specifically, the Plaintiffs bring claims for violations of New York's General Business Law Sections 349 and 350, breach of express warranty, breach of implied warranty of merchantability, violations of the Magnuson Moss Warranty Act, fraud, and unjust enrichment. Wegmans distributes, markets, labels, and sells its store brand Gluten Free Vanilla Cake Mix with a front label stating "Vanilla," "Naturally Flavored," "Rich & Indulgent," "Food You Feel Good About," and "No Artificial Colors, Flavors or Preservatives," along with a picture of blueberries and a strawberry. The Product is sold in 14-ounce boxes to consumers in Wegmans's retail stores across eight states, including New York, Massachusetts, Pennsylvania, Virginia, and New Jersey. The Plaintiffs allege that, contrary to the front label representations, the Product itself is not "Naturally Flavored" and contains artificial flavors. They claim a laboratory analysis reveals the Product is instead flavored from ethyl vanillin at a quantity of 3.07 PPB. They allege that they expected the Product not to contain artificial flavors and to only derive its taste from natural flavors, because that is what the label said. They thus claim the ingredient list is misleading because it fails to identify and disclose "artificial flavors," as evidenced by the use of ethyl vanillin. On Nov. 20, 2020, the Plaintiffs filed the First Amended Complaint on behalf of all purchasers of the Product who reside in New York, Virginia, and New Jersey, asserting claims against Defendant for (1) violations of New York General Business Law Sections 349 and 350, (2) negligent misrepresentation, (3) breach of express warranty, (4) breach of implied warranty of merchantability, (5) violations of the Magnuson Moss Warranty Act, (6) fraud, and (7) unjust enrichment. They sought both monetary damages and injunctive relief that would require the Defendant to correct the Product's allegedly misleading label. (Id.) Defendant moved to dismiss the FAC on Feb. 26, 2021. The Court's Opinion on Jan. 28, 2022 ("First Opinion & Order") granted the Defendant's motion to dismiss the FAC for failure to state a claim and granted the Plaintiffs leave to file a second amended complaint. The Plaintiffs filed a SAC on Feb. 28, 2022, asserting the same seven claims against the Defendant from the Plaintiffs' FAC. The Defendant moved to dismiss the SAC on May 16, 2022. It filed a memorandum of law in support of its motion to dismiss on May 16, 2022. The Plaintiffs filed a memorandum of law in opposition to the Defendant's motion to dismiss on May 16, 2022. The Plaintiffs withdrew both their claim for negligent misrepresentation and their request for injunctive relief. They seek monetary damages, expenses, and reasonable attorneys' fees. The Defendant filed a reply on May 16, 2022, in support of its motion to dismiss the Plaintiffs' SAC. The Plaintiffs assert claims against the Defendant for (1) violations of New York's General Business Law Sections 349 and 350, (2) breach of express warranty, (3) breach of implied warranty of merchantability, (4) violation of the Magnuson Moss Warranty Act, (5) fraud, and (6) unjust enrichment. The Defendant moves to dismiss all claims for failure to state a claim pursuant to Rule 12(b)(6). First, in the absence of any substantiated allegations that artificial flavors, like ethyl vanillin, are present in the Product, Judge Roman concludes that the Product's labeling would not mislead a reasonable consumer. The Plaintiffs' claims under GBL Sections 349 and 350 are dismissed with prejudice. Therefore, it is not necessary to reach the Defendant's argument that these claims are preempted by federal law. Second, as to the Plaintiffs' claim of express breach of warranty under New York law, Judge Roman holds that (i) the breach of express warranty claim fails because the Plaintiffs provide no factual basis to suggest the Product contains ethyl vanillin, let alone that the alleged inclusion of scant amounts of artificial flavoring renders the Product's label "material" misstatement; (ii) the breach of implied warranty of merchantability claim fails because the Plaintiffs' allegations do not otherwise state that the cake mix is unfit for human consumption. Moreover, Judge Roman holds that (i) the MMWA claim fails because the Plaintiffs do not identify any statements on the label that warrant a product free from defect, nor do they identify anything on the label that constitutes a promise that a product will meet a specified level of performance as required to state a sufficient MMWA claim; (ii) the Plaintiffs' fraud claim fails because they have failed to allege a material misrepresentation of fact or omission because they have not plausibly alleged the Product contains artificial flavor; and (iii) because the Plaintiffs' unjust enrichment claim is based on the same allegations as their defective claims for consumer deception, their unjust enrichment claim also fails. Lastly, the Plaintiffs requested, in the alternative to denying the motion to dismiss, for leave to file a Third Amended Complaint. The Court previously detailed the deficiencies in the Plaintiffs' FAC and provided the Plaintiffs leave to amend. However, Judge Roman finds that the Plaintiffs' SAC fails to address the same deficiencies noted in the previous complaint. The Plaintiffs do not explain how they can cure the deficiencies identified. Accordingly, the claims in the SAC with prejudice and without leave to replead. For all the foregoing reasons, Judge Roman grants the Defendant's motion to dismiss pursuant to Rule 12(b)(6). The Plaintiffs' SAC in its entirety without leave to replead. The Clerk of Court is directed to terminate the motion at ECF No. 25 and to close the case. A full-text copy of the Court's March 10, 2023 Opinion & Order is available at https://tinyurl.com/mumpsnfj from Leagle.com. ZOLL MEDICAL: Fails to Secure Customers' Info, Jemison Claims ------------------------------------------------------------- TIMOTHY C. JEMISON, individually and on behalf of all others similarly situated, Plaintiff v. ZOLL MEDICAL CORPORATION, Defendant, Case No. 1:23-cv-10598-IT (D. Mass., March 17, 2023) is a class action against the Defendant for negligence, negligence per se, breach of implied contract, violation of the Arkansas Deceptive Trade Practices Act, and unjust enrichment. The case arises from ZOLL's failure to safeguard the personally identifying information (PII) and protected health information (PHI) of its customers following a data breach in January 2023. The Defendant owes a duty to the Plaintiff and Class members to maintain adequate security measures to safeguard the PII and PHI it requested and was entrusted with. The Defendant breached its duty by failing to implement and/or maintain adequate security practices. As a result of ZOLL's inadequate digital security and notice process, the Plaintiff and Class members' PII and PHI were exposed to criminals. They have suffered and will continue to suffer injuries including financial losses caused by misuse of PII and PHI; the loss or diminished value of their PII; lost time associated with detecting and preventing identity theft; and theft of personal, medical, and financial information, says the suit. ZOLL Medical Corporation is a company that develops and markets medical devices and software solutions based in Chelmsford, Massachusetts. [BN] The Plaintiff is represented by: Gary S. Ishimoto, Esq. Mark S. Reich, Esq. Courtney E. Maccarone, Esq. LEVI & KORSINSKY, LLP 55 Broadway 4th Floor, Suite 427 New York, NY 10006 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 E-mail: gishimoto@zlk.com mreich@zlk.com cmaccarone@zlk.com [^] 2023 Class Action Money & Ethics Conference - Speakers Named ---------------------------------------------------------------- Register now for the 7th Annual Class Action Money & Ethics Conference! The in-person conference will be held at The Harmonie Club, New York City, on Monday, May 8, 2023. This year's event boasts of an All-Star lineup of speakers: * Michael P. Canty, Partner, Labaton Sucharow LLP * Neil Kornswiet, CEO, Optium Capital LLC * Gerald L. Maatman, Jr., Partner, Duane Morris LLP * Edward E. Neiger, Esq., Co-Managing Partner, Ask LLP * Graham Newman, Partner, Chappell, Chappell & Newman * Bola Oyesanya, Managing Director and Private Banker, Citi Law Firm Group * Paige Richardson, Director of Operations, Milestone * Jennifer A. Riley, Partner, Duane Morris LLP * Daniel Stefany, Associate, Hunton Andrews Kurth LLP * Thomas R. Waskom, Partner, Hunton Andrews Kurth LLP Ms. Oyesanya is this year's conference chair. The value-packed event features special presentations from keynote speakers, live panel discussions with industry experts and networking with other professionals. This year's conference sponsors are: * Premier Sponsor: Citi * Major Sponsors: Baird Mandalas Brockstedt Bock Hatch & Oppenheim, LLC Schochor, Federico and Staton, P.A. * Patron Sponsors: Huntington * Advocate Sponsors: Atticus Battea Class Action Services Simpluris Interested in becoming a speaker in May? Contact: Bernard Toliver, CMP (240) 629-3300 ext. 149 E-mail: bernard@beardgroup.com Visit https://www.classactionconference.com/ for more information. The conference is presented by Beard Group, Inc. ********* 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 ***